WT/DS552/R/Add.1  
 
9 December  2022 
(22-9173) Page: 1/90 
  Original: English  
 
  
UNITED  STATES  – CERTAIN MEASURES ON STEEL AND ALUMINIUM 
PRODUCTS  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in documents  
WT/DS552/R . 
 
_______________  
 
 
 
 
 
 
 
 
 
 WT/DS552/R/Add.1  
 
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LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Working Procedures of the Panel  for Open Meeting  10 
Annex  A-3 Working Procedures of the Panel  Revised on 19 July 2019 and 20 February 
2020 11 
Annex  A-4 Additional Working Procedures of the Panel Concerning Meetings with Remote 
Participation   17 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Norway  20 
Annex  B-2 Integrated executive summary  of the arguments of the United States of 
America  40 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIE S 
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of China  47 
Annex  C-2 Integrated executive summary of the arguments of the European Union  50 
Annex  C-3 Integrated executive summary of the arguments of Hong Kong, China  56 
Annex  C-4 Integrated executive summary of the arguments of India  59 
Annex  C-5 Integrated executive summary of the arguments of Japan  62 
Annex  C-6 Integrated executive summary of the arguments of Ne w Zealand  65 
Annex  C-7 Integrated executive summary of the arguments of the Russian Federation  68 
Annex  C-8 Integrated executive summary of the arguments of Singapore  74 
Annex  C-9 Integrated executive summary of the arguments of Switzerland  79 
Annex  C-10 Integrated executive summary of the arguments of Türkiye  84 
Annex  C-11 Integrated executive summary of the arguments of Ukraine  89 
 
 
 WT/DS552/R/Add.1  
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  ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures of the Panel  for Open Meeting  10 
Annex  A-3 Working Procedures of the Panel  Revised on 19 July 2019 and 20 February 2020  11 
Annex  A-4 Additional Working Procedures of the Panel Concerning Meetings with Remote 
Participation   17 
 
 
 
 WT/DS552/R/Add.1  
 
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  ANNEX  A-1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 5 April 2019  
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the r ight to modify these procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is s ubmitted to the Panel 
which the submitting Member has designated as confidential.  
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public.  
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the parties.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also  submit to the Panel, before the second substantive meeting of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the  Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  
Preliminary rulings  
4. (1) If the United States considers that the Panel should make a ruling before the issuan ce 
of the Report that certain measures or claims in the panel request or the complainant's first 
written submission are not properly before the Panel, the following procedure applies. 
Exceptions to this procedure shall be granted upon a showing of good cau se.  
a. The United States shall submit any such request for a preliminary ruling at the earliest 
possible opportunity and in any event no later than in its first written submission to the  WT/DS552/R/Add.1  
 
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  Panel. Norway shall submit its response to the request before the first  substantive meeting 
of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling 
request before, during or after the first substantive meeting, or  the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide reasons for the ruling at the time that the ruling is made, 
or subsequently in its Report.   
d. Any request for such a preliminary ruling by the respondent before the first meeting, and 
any subsequent submissions of the parties in relation thereto before the first me eting, 
shall be served on all third parties. The Panel may provide all third parties with an 
opportunity to provide comments on any such request, either in their submissions as 
provided for in the timetable or separately. Any preliminary ruling issued by t he Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be communicated to all third parties.  
(2) This procedure is without prejudice to the parties' right to request other types of 
prelimina ry or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, except evid ence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a  showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or t hird party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working language of the submission. The Panel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shal l be accompanied 
by an explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of e ach exhibit on its 
cover page. Exhibits submitted by Norway should be numbered NOR -1, NOR -2, etc. Exhibits 
submitted by the United States should be numbered USA -1, USA -2, etc. If the last exhibit in 
connection with the first submission was numbered [XXX] -5, the first exhibit in connection 
with the next submission thus would be numbered [XXX] -6.  
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to question s. 
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again.  WT/DS552/R/Add.1  
 
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  (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submis sions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written questio ns, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.   
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writi ng following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel may open its meetings with the parties to the public, subject to appropriate 
procedures to be adopted by the Panel after consulting the parties.  
 
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsib ility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties a nd third parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite Norway to make an opening statement to present its case first. 
Subsequently, the Panel shall invite the United States to present its point of view. Before each 
party takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its statement. If interpretation is needed, each party shall 
provide additional copies for the interpreters.  
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
party is invited to limit the duration of its opening statement to not more than 75 minutes. If 
either party considers that it requires more time for its opening statement, it should  inform 
the Panel and the other party at least 10 days prior to the meeting, together with an estimate 
of the expected duration of its statement. The Panel will accord equal time to the other party    
c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments or ask the other party questions.  
d. The Panel may subsequently pose questions to the parties.  WT/DS552/R/Add.1  
 
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  e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Norway presenting its statement first. Before each 
party takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its closing statement, if available.  
f. Followi ng the meeting:  
i. Each party shall submit a final written version of its opening statement no later than 
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same 
time, each party should also submit a final written version of any pr epared closing 
statement that it delivered at the meeting.  
ii. Each party shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the other party to which it wishes to receive 
a response in writing.   
iii. The Panel shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the  Panel, and to any 
questions posed by the other party, within the time -frame established by the Panel 
before the end of the meeting.  
16. The Panel will communicate in advance concerning the conduct of the second substantive 
meeting, after having consulted with the parties.  
Third party session  
 
17. The third parties shall be present at the meetings only when invited by the Panel to appear 
before it.  
18. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiali ty of the proceeding and the 
submissions of the parties and third parties.  
19. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceed ing, to 
allow sufficient time to ensure availability of interpreters.  
20. (1) Each third party may present its views orally during a session of the first substantive 
meeting with the parties set aside for that purpose.  
(2) Each third party shall indicate to the Panel whether it intends to make an oral statement 
during the third party session, along with the list of members of its delegation, in advance of 
this session and no later than 5.00  p.m. (Geneva time) three working days before the third 
party sessi on of the meeting with the Panel.  
21. The Panel will communicate in advance of the first substantive meeting concerning the conduct 
of the third party session, after having consulted with the parties.  
Descriptive part and executive summaries  
 
22. The desc ription of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries  shall not in any way serve WT/DS552/R/Add.1  
 
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  as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case.  
23. Each party shall submit one integrated executive summary. The timing of the submission of 
the integrated executive summary shall be indicated in the timetable adopted by the Panel.  
24. The integrated executive summary shall be limited to no more than 30 p ages.  
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
26. Each third party shall subm it an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. This 
integrated executive summary may also include a summary of responses to questions, if relev ant. 
The executive summary to be provided by each third party shall not exceed six  pages. If a third -
party submission and/or oral statement does not exceed six pages in total, this may serve as the 
executive summary of that third party's arguments.  
Interim  review  
 
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to  request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
28. If no further meeting with the Panel is requested, each party may submit written comments 
on the other party's written request for review , in accordance with the timetable adopted by the 
Panel. Such comments shall be limited to commenting on the other  party's  written request for 
review.  
Interim and Final Report  
29. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
Service of documents  
 
30. The following procedures regarding service of documents apply to all documents submitted by 
parties and third parties during the proceeding:  
a. Each part y and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047).  
b. Each party and third party shall submit 2 paper copies of its submissions and 2 paper 
copies of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates established 
by the Panel. The DS  Registrar shall stamp the documents with the date and time of 
submission. The paper version submitted to the DS Registry shall constitute the official 
version for the purposes of submission de adlines and the record of the dispute. If any 
documents are in a format that is impractical to submit as a paper copy, then the party 
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or USB 
key only.  
c. Each party and third party shall also send an email to the DS Registry, at the same time 
that it submits the paper versions, attaching an electronic copy of all documents that it 
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails 
to the Panel sha ll be addressed to DSRegistry@wto.org, and copied to other WTO 
Secretariat staff whose email addresses have been provided to the parties during the 
proceeding. If it is not possible to attach all the Exhibits to one email, the submitting party 
or third par ty shall provide the DS Registry with four copies of the Exhibits on USB keys, 
CD-ROMs or DVDs.  WT/DS552/R/Add.1  
 
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  d. In addition, each party and third party is invited to submit all documents through the 
Digital Dispute Settlement Registry (DDSR) within 24 hours following t he deadline for the 
submission of the paper versions. If the parties or third parties have any questions or 
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide 
(electronic copy provided) or contact the DS Registry a t DSRegistry@wto.org.  
e. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve any submissions in advance of the first substantive 
meeting with the Panel directly on the third parties. Each third party shall serve any 
document submitted to the Panel directly on the parties and on all other third parties. A 
party or third party may serve its documents on another party or third party by email or 
other electronic format acceptable to the re cipient without having to serve a paper copy, 
unless the recipient party or third party has previously requested a paper copy. Each party 
and third party shall confirm, in writing, that copies have been served on the parties and 
third parties, as appropria te, at the time it provides each document to the Panel.  
f. Each party and third party shall submit its documents with the DS Registry and serve 
copies on the other party (and third parties if appropriate) by 5.00  p.m. (Geneva time) on 
the due dates establi shed by the Panel.  
g.  As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with a paper copy of the Interim Report and the Final Report.  
Correction of clerical errors in submissions  
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any such req uest should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  
 
 
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  ANNEX  A-2 
ADDITIONAL WORKING PROCEDURES FOR THE PANEL  
OPEN MEETING  
Adopted on 19 July 2019  
1. These Additional Working Procedures shall only be applicable to the first substantive meeting 
of the Panel with the parties. They shall not cover the second substantive meeting of the Panel 
with the Parties nor the third -party session.  
2. Subject to the availability of suitable WTO meeting rooms, the Panel will open its first 
substantive meeting with the parties to the public ("open session") pursuant to paragrap h 10 
of its Working Procedures.  
3. If the Panel or any of the parties considers it necessary to close any part of the substantive 
meeting ("closed session"), the Panel shall close the meeting immediately or convene a closed 
session at a time to be determined by the Panel.  
4. The Panel will invite the parties to introduce the members of their delegations in a closed 
session at the beginning of the substantive meeting. The Panel will then start the open session 
with the parties' opening statements. After the parties' opening statements, each party will 
be given the opportunity to pose questions or make comments, through the Panel, on the 
other party's statement. The Panel may subsequently pose questions to the parties. Once the 
questioning has concluded, the P anel shall afford each party an opportunity to present a brief 
closing statement.  
5. During the first  substantive meeting , the following persons shall be admitted into the meeting 
room:  
• Members of the Panel;  
• Members of the delegations of the parties;  and 
• WTO Secretariat staff assisting the Panel.  
 
6. Subject to the availability of suitable WTO meeting rooms, the open sessions of the first 
substantive meeting will be open to other WTO Members, Observers, staff members and 
registered members of the public  via a live closed -circuit television broadcast to a separate 
viewing room in the WTO.  The WTO Secretariat will remind the public that no audio or video 
recording of the open sessions  is permitted.  
7. The viewings will be open to officials of WTO Members, Observers and  staff members of the 
WTO Secretariat upon presentation of their official badges. No later than  four weeks before 
the substantive meeting , the WTO Secretariat will place a notice on the WTO website informing 
the public of the open sessions. The notice shal l include a link through which members of the 
public, including accredited journalists and representatives of relevant non -governmental 
organizations (NGOs), can register directly with the WTO. The date of the  deadline for public 
registration will be commu nicated to the parties as soon as it has been established.  
 WT/DS552/R/Add.1  
 
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  ANNEX  A-3 
WORKING PROCEDURES OF THE PANEL  
Revised on 19 July 2019  and 20 February 2020  
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify t hese procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) In accordance with the DSU , nothing  in these Working Procedures shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
(3) If a party subm its a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public.  
(4) Upon request, the Pa nel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the parties.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit  a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, before the second substantive meeting of the 
Panel, a written rebutta l, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  
Preliminary rulings  
4. (1) If the United States considers that the Panel should make a ruling before the issuance 
of the Report that certain measures or claims in the panel request or the complainant's first 
written submission are not properly before the Panel, the following procedu re applies. 
Exceptions to this procedure shall be granted upon a showing of good cause.  
a. The United States shall submit any such request for a preliminary ruling at the earliest 
possible opportunity and in any event no later than in its first written submi ssion to the WT/DS552/R/Add.1  
 
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  Panel. Norway  shall submit its response to the request before the first substantive 
meeting of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling 
request before, during or after the first substantive meeting, or the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide reasons for the ruling at the time that the ruling is made, 
or subsequently in its Report.   
d. Any request for such a preliminary ruling by the respondent before the first meeting, a nd 
any subsequent submissions of the parties in relation thereto before the first meeting, 
shall be served on all third parties. The Panel may provide all third parties with an 
opportunity to provide comments on any such request, either in their submission s as 
provided for in the timetable or separately. Any preliminary ruling issued by the Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be communicated to all third parties.  
(2) This proc edure is without prejudice to the parties' right to request other types of 
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all e vidence to the Panel no later than during the first 
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be gra nted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working language of the submission. The Panel may grant 
reasonable exten sions of time for the translation of exhibits upon a showing of good cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting (whichever occurs earlier) foll owing 
the submission which contains the translation in question. Any objection shall be accompanied 
by an explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the dispute and ma ximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. Exhibits submitted by Norway  shoul d be numbered NOR-1, NOR-2, etc. Exhibits 
submitted by the United States should be numbered USA -1, USA -2, etc. If the last exhibit in 
connection with the first submission was numbered [XXX] -5, the first exhibit in connection 
with the next submission thus w ould be numbered [XXX] -6.  
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submit ted as an exhibit by the 
other party, it should explain why it is submitting that document again.  WT/DS552/R/Add.1  
 
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  (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cite d content of the website shall be 
provided in the form of an exhibit.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submis sions (electronic copy 
provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.   
b. The Panel may put questions to the parties a nd third parties orally during a meeting, 
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel may open its meetings with the parties to the public, subject to appropriate 
procedures to be adopted by the Panel after consulting the parties.  
 
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting wi th the Panel.  
(2) Each party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite Norway  to make an opening statement to present its case first. 
Subsequently, the Panel shall invite the United States  to present its point of view. Before each 
party takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisi onal written version of its statement. If interpretation is needed, each party shall 
provide additional copies for the interpreters.  
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
party is invited to limit the dura tion of its opening statement to not more than 75 minutes. If 
either party considers that it requires more time for its opening statement, it should inform 
the Panel and the other party at least 10 days prior to the meeting, together with an estimate 
of the expected duration of its statement. The Panel will accord equal time to the other party    
c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments or ask the other party questions.  
d. The Panel may subsequently pose questions to the parties.  WT/DS552/R/Add.1  
 
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  e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Norway  presenting its statement first. Before each 
party takes the floor, it  shall provide the Panel and other participants at the meeting with a 
provisional written version of its closing statement, if available.  
f. Following the meeting:  
i. Each party shall submit a final written version of its opening statement no later than 
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same 
time, each party should also submit a final written version of any prepared closing 
statement that it delivered at the meeting.  
ii. Each party shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the other party to which it wishes to receive 
a response in writing.  
iii. The Panel shal l send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to a ny 
questions posed by the other party, within the time -frame established by the Panel 
before the end of the meeting.  
16. The Panel will communicate in advance concerning the conduct of the second substantive 
meeting, after having consulted with the parties . 
Third party session  
 
17. The third parties shall be present at the meetings only when invited by the Panel to appear 
before it.  
18. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the procee ding and the 
submissions of the parties and third parties.  
19. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow su fficient time to ensure availability of interpreters.  
20. (1) Each third party may present its views orally during a session of the first substantive 
meeting with the parties set aside for that purpose.  
(2) Each third party shall indicate to the Panel whe ther it intends to make an oral statement 
during the third party session, along with the list of members of its delegation, in advance of 
this session and no later than 5.00  p.m. (Geneva time) three working days before the third 
party session of the meetin g with the Panel.  
21. The Panel will communicate in advance of the first substantive meeting concerning the conduct 
of the third party session, after having consulted with the parties.  
Descriptive part and executive summaries  
 
22. The description of the a rguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in an y way serve WT/DS552/R/Add.1  
 
- 15 - 
 
  as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case.  
23. Each party shall submit one integrated executive summar y. The timing of the submission of 
the integrated executive summar y shall b e indicated in the timetable adopted by the Panel.  
24. The integrated executive summary shall be limited to no more than 30 pages.  
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the ti metable adopted by the Panel. This 
integrated executive summary may also include a summary of responses to questions, if relevant. 
The executive summary to be provided by each third party shall not exceed six  pages. If a third -
party submission and/or oral statement does not exceed six pages in total, this may serve as the 
executive summary of that third party's arguments.  
Interim review  
 
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such  a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
28. If no further meeting with the Panel is requested, each party may submit written comments 
on the other party's written request for review, in accordan ce with the timetable adopted by the 
Panel. Such comments shall be limited to commenting on the other party's written request for 
review.  
Interim and Final Report  
29. The interim report, as well as the final report before its official circulation, shall b e kept strictly 
confidential and shall not be disclosed.  
Service of documents  
 
30. The following procedures regarding service of documents apply to all documents submitted by 
parties and third parties during the proceeding:  
a. Each party and third party shall  submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047).  
b. Each party and third party shall submit 2 paper cop ies of its submissions and 2 paper 
copies of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due d ates established 
by the Panel. The DS  Registrar shall stamp the documents with the date and time of 
submission. The paper version submitted to the DS Registry shall constitute the official 
version for the purposes of submission deadlines and the record of the dispute. If any 
documents are in a format that is impractical to submit as a paper copy, then the party 
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or USB 
key only . 
c. Each party and third party shall also send an email to t he DS Registry, at the same time 
that it submits the paper versions, attaching an electronic copy of all documents that it 
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails 
to the Panel shall be addressed to DSRegistry @wto.org, and copied to other WTO 
Secretariat staff whose email addresses have been provided to the parties during the 
proceeding. If it is not possible to attach all the Exhibits to one email, the submitting party 
or third party shall provide the DS Regis try with four copies of the Exhibits on USB keys, 
CD-ROMs or DVDs.  WT/DS552/R/Add.1  
 
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  d. In addition, each party and third party is invited to submit all documents through the 
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the 
submission o f the paper versions. If the parties or third parties have any questions or 
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide 
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.  
e. Each party  shall serve any document submitted to the Panel directly on the other party. 
Each party shall serve directly on the third parties any submissions up to and including 
the responses to the questions posed by the Panel following the first substantive meeting  
of the Panel with the parties, as well as the final versions of the oral statements made 
during this meeting . In addition, each party shall serve directly on the third parties second 
written submissions, final versions of oral statements made during the s econd substantive 
meeting, responses to the Panel's questions after the second substantive meeting, and 
comments on those responses . Each third party shall serve any document submitted to 
the Panel directly on the parties and on all other third parties. A party or third party may 
serve its documents on another party or third party by email or  other electronic format 
acceptable to the recipient without having to serve a paper copy , unless the recipient party 
or third party has previously requested  a paper copy. Each party and third party shall 
confirm, in writing, that copies have been served on the parties and third parties, as 
appropriate, at the time it provides each document to the Panel.  
f. Each party and third party shall submit its documents wi th the DS Registry and serve 
copies on the other party (and third parties if appropriate) by 5.00  p.m. (Geneva time) on 
the due dates established by the Panel.  
g. As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with a paper copy of the Interim Report and the Final Report.  
Correction of clerical errors in submissions  
 
31. The Panel may grant leave to a party or  third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the  submission in question.  
 
 WT/DS552/R/Add.1  
 
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  ANNEX  A-4 
ADDITIONAL WORKING PROCEDURES OF THE PANEL  
CONCERNING MEETINGS WITH REMOTE PARTICIPATION  
Adopted on 1 December 2020  
General  
1. These Additional Working Procedures set out terms for holding meetings with the Panel where 
all of the participants shall attend by remote means.  
2. These Additional Working Procedures are meant to develop and complement paragraph 16 of 
the Working P rocedures of the Panel.  
Definitions  
3. For the purposes of these Additional Working Procedures:  
"Remote participant"  means any registered person attending the meeting with the Panel by 
remote means.  
"Platform"  means Cisco Webex software through which remote participants attend the meeting 
with the Panel.  
"Host"  means the designated person within the WTO Secretariat responsible for the 
management of the platform.  
Equipment and technical requirements  
4. Each party s hall ensure that all remote participants of its delegation join the meeting using the 
designated platform, and meet the minimum equipment and technical requirements set out by 
the platform provider for the effective conduct of the meeting . 
5. All technical qu estions, including the minimum equipment and technical requirements  for the 
usage of the Platform, will be addressed in the advance testing sessions in paragraph 8 below 
between the Host and the parties.  
Technical support  
6. (1) Each party is responsible for providing technical support to the remote participants of its 
deleg ation.  
(2) The host will assist remote participants in accessing and using the platform in preparation 
of, and during, the meeting with the Panel.  
Pre-meeting  
Registration  
7. Each party shall provide  to the Panel the list of the members of its delegation, on a dedicated 
form to be provided by the WTO Secretariat, no later than 5:00 p.m. (Geneva time) one week 
before the first day of the meeting with the Panel.  WT/DS552/R/Add.1  
 
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  Advance testing  
8. Before the meeting with the Panel, the WTO Secretariat will hold two testing session s with all 
remote participants of each party: (i) a separate one for each party's remote participants, and 
(ii) a joint session with all participants in the meeting, including all remote participants of the 
parties and the Panel joining remotely. Such sess ions will seek to reflect, as far as possible, the 
conditions of the meeting.  
Confidentiality and security  
9. The Panel shall meet in closed session. The content and conduct of the meeting are confidential 
and no recording by the parties of any part of the m eeting is allowed.  
10. The Panel will record the meeting and keep an official copy of it for the Panel's record.  
Conduct of the meeting  
Access to the virtual meeting room  
11. (1) The host will invite remote participants via email to join the virtual meeting room on the 
platform.  
(2) For security reasons, access to the virtual meeting room will be password -protected and 
limited to registered participants. Remote participants sh all not forward or share the meeting 
link or password.  
(3) Each party shall ensure that only registered participants from its delegation join the virtual 
meeting room.  
Advance log -on 
12. (1) The virtual meeting room will be accessible 60 minutes in advance o f the scheduled start 
time of each session of the meeting with the Panel.  
(2) All remote participants shall log on to the platform at least 30 minutes in advance of the 
scheduled start time of each session of the meeting with the Panel.  
Document sharing  
13. (1) Each party shall provide the Panel and other participants with a provisional written version 
of its opening statement and, if available, of its closing statement, before delivery at the 
meeting. The parties are invited to make their opening statements available to the Panel the 
day before the commencement of the meeting.  
(2) Any participant wishing to share a document with the Panel and other participants during 
the meeting shall do so before first referring to such document at the meeting.  
Technical m atters  
14. (1) Each party shall designate a contact person who can liaise with the host during the course 
of the meeting to report any technical issues that arise with respect to the platform. The host 
can be contacted via the platform, by sending an email to leslie.stephenson@wto.org , or by 
calling +41 022 739 6148.  
(2) Should any technical interruptions occur, the host will directly coordinate with the affected 
participants to resolve the issue. After consulting the parties, the Panel may pause the session 
until the technical issue is resolved or may continue the proceedings with those participants that 
continue to be connected.  
_______________  WT/DS552/R/Add.1  
 
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  ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Norway  20 
Annex  B-2 Integrated executive summary  of the arguments of the United States of 
America  40 
 
 WT/DS552/R/Add.1  
 
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  ANNEX  B-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY  
I. INTRODUCTION  
1. Norway challenges the United States ' measures under the Agreement on Safeguards  
("Safeguards Agreement ") and the General Agreement on Tariffs and Trade 1994 ( "GATT 1994 "). 
The United States ' sole response to Norway 's claims has been an assertion that its measures are 
justified under the security exception in Article XXI(b) of the GATT 1994. The United States has not 
substantiated that defence, incorrectly asserting instead that Article XXI(b) is entirely self -judging.  
II. MEASURES AT ISSUE  
2. The United States has imposed additional tariffs on imported aluminium and steel products 
through Presidential Proclamations, pursuant to Section 232 of the Trade Expansion Act of 1962 
("Section 232 "). 
3. Section 232 authorises the US Secre tary of Commerce to undertake an investigation to 
determine the effects of imports of a particular article of commerce on US "national security ".1 At 
the conclusion of the investigation, the Secretary of Commerce is required to submit a report to the 
President. The President is then authorised to negotiate agreements with other countries to limit or 
to restrict imports, or to "take such other action s as the President deems necessary to adjust the 
imports of such article so that such imports will not threaten to impair the national security ".2 
4. The Secretary of Commerce initiated investigations into the effect of imported aluminium and 
steel on US nat ional security, pursuant to Section 232, on 26 and 19 April 2017, respectively.  
5. On 17 and 11 January 2018, the Department of Commerce ( "DOC") released two reports 
(collectively, the "DOC Reports ") 
• "The Effects of Imports of Aluminum on the National Securi ty" (" DOC 
Aluminium Report "), recommending, among other measures, a 7.7 percent 
tariff on imports of aluminium, with the objective of enabling US aluminium 
production to operate at an average of 80 percent of production capacity.3  
• "The Effects of Imports  of Steel on the National Security" (" DOC Steel 
Report "), recommending, among other measures, a 24 percent tariff on all 
steel imports, with the objective of enabling US steel production to operate 
at an average of 80 percent of production capacity;4  
6. In response to the recommendations in the DOC Reports, in March 2017, President Trump 
introduced: (1) an additional 10 percent tariff on aluminium products  from all countries, except 
Canada and Mexico, effective 23 March 2018;5 and (2) an additional 25 perce nt tariff on steel 
products  from all countries except Canada and Mexico, effective 23 March 2018.6 According to the 
Proclamations, the measure at issue is designed to provide "relief" to US aluminium and steel 
industries.7 
7. The aluminium tariffs cover all  industry segments, namely: (1) primary  unwrought aluminium 
products; (2) secondary  unwrought aluminium products; and (3) downstream  wrought aluminium 
 
1 Section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862), (Exhibit NOR -12). 
2 Section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862), (Exhibit NOR -12), 
(c) (3)(A)(ii).  
3 DOC Aluminium Report, (Exhibit NOR -2), p. 107.  
4 DOC Steel Report, (Exhibit NOR -1), p. 59.  
5 Proclamation No. 9704, (Exhibit NOR -3), para. (2) . 
6 Proclamation No. 9705, (Exhibit NOR -4), para. (2).  
7 Proclamation No. 9705, (Exhibit NOR -4), para. 7; Proclamation No. 9704, (Exhibit NOR -3), 
para. 7. WT/DS552/R/Add.1  
 
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  products. The steel tariffs apply to the following industry segments: (1) semi -finished "blast oxygen 
furnace" ("BOF") steel; (2) semi -finished "electric arc furnace " ("EAF") steel; and (3) finished steel 
products.  
8. Subsequent to the introduction of the tariffs, President Trump issued further proclamations 
that: (1) removed the exemptions granted to Canada and Mexico; (2) granted a series of temporary 
and permanent exemptions to other WTO Members (sometimes in exchang e for an import quota 
applied to the subject goods); and (3) provided for the potential exclusion of subject aluminium/steel 
products from the scope of its measures, at the request of US industry.  
9. The following table identifies and describes the US measur es, indicates their legal basis, and 
identifies Norway 's claims of WTO -inconsistency.  
Table 1: the measures challenged by Norway  
Measure  Description  Legal instrument  Norway's claims  
Safeguards 
Agreement  GATT 1994  
Additional ad 
valorem  
import tariffs  
("import 
tariffs")  Import tariffs imposed by the 
United States in excess of its 
bound rate for the relevant 
products. Import tariffs apply 
to Members that do not have 
an import quota. Import 
tariffs apply for all aluminium 
and steel product s, unless 
excluded .  Presidential 
Proclamations 
("PPs") 9704; 
9705; and 9772  Articles 2.1, 
2.2, 5.1, 12.1, 
and 12.2  Articles II:1(a) 
and (b)  
Country -
specific 
import 
quotas  
("import 
quotas")  Import quotas imposed on 
imports from Argentina, Brazil 
and South Korea in lieu of 
tariffs. The product scope of 
the quota, as well as and the 
level of the quota, level varies 
between the affected 
Members.  PPs 9740; 9758; 
and 9759  Article 11.1(b)  Article XI:1  
Country -
wide tariff 
exemptions  Members that successfully 
negotiated an import quota 
benefit from country -wide 
tariff exemptions. Australia 
benefits from an exemption 
from the tariffs, without 
having agreed to an import 
quota.  PPs 9704; 9705; 
9710; 9711; 9739; 
9740; 9758; and 
9759 - Articles I:1 
and X:3(a)  WT/DS552/R/Add.1  
 
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  Product 
exclusions  US DOC may, on the 
application of US industry, 
exclude certain aluminium/ 
steel products from the import 
tariffs, if they meet certain 
criteria. US aluminium and 
steel producers may object to 
any application by US 
industry.  PPs 9704; 9705; 
9776; and 9777  
March Interim Final 
Rule;8 September 
Interim Final Rule9 - Article X:3(a)  
 
III. THE DOC REPORTS  
10. In the DOC Reports, the US Secretary of Commerce recommended the aluminium and steel 
import tariffs at issue as a necessary response to the DOC Reports ' findings that aluminium and 
steel imports to the United States are "weakening [the United States '] internal economy ", and thus 
threaten to "impair the national security ".10 US President Trump imposed the aluminium and  steel 
import tariffs at issue in response to these recommendations.  
A. The DOC Aluminium Report  
11. The DOC Aluminium Report assesses the impact of increased imports of aluminium products 
on the US aluminium industry. It does so using a variety of reference periods: in some cases, from 
1970-2016; in others, from 2011 -2017. Generally, the DOC 's analysis i s focused on the period 
2011-2017. The DOC concludes that aluminium imports are threatening the economic welfare of the 
US aluminium industry, and threaten to impair "national security ".11 
12. The Report explains that "the industry can be divided into three ba sic segments ".12 These are: 
first, unwrought aluminium produced from smelting, i.e., produced from raw materials (primary 
aluminium). Second , unwrought aluminium produced from recycled feedstock (secondary 
aluminium). Third, wrought products, which are man ufactured from unwrought aluminium, however 
it is produced (downstream products). The DOC explains that secondary aluminium "is not the focus " 
of the Report.13 
13. The DOC Aluminium Report concludes that "the present quantities and circumstance of 
aluminum imports … are 'weakening our internal economy '",14 and it is thus necessary to reduce 
imports to a level that will "provide the opportunity for U.S. primary aluminum producers to restart 
idled capacity ".15 The Report also concludes that "[a] quota or tariff on downstream products is also 
necessary " because "downstream companies [also] face increased import penetration in many 
aluminum product sectors ".16 
B. The DOC Steel Report  
14. The DOC Steel Report assesse s the impact of increased imports on the US domestic steel 
industry. Like the DOC Aluminium Report, the Steel Report does so using a variety of reference 
periods: in some cases, from 1975 -2016; in others, from 2011 -2017. Generally, the DOC 's analysis 
is also focused  on the period 2011 -2017.  
 
8 Interim Final Rule, Fed. Reg. 83, 12,106, 19 March 2018 (“March Interim Final Rule”), (Exhibit NOR -
76).  
9 Interim Final Rule, Fed. Reg. 83, 46,026, 11 September 2018 (“September Interim Final Rule”), 
(Exhibit NOR -20).   
10 DOC Steel Report, (Exhibit NOR -1), p. 5; DOC Aluminium Report, (Exhibit NOR -2), pp. 5 and 104.  
11 DOC Aluminium Report, (Exhibit NOR -2), pp. 5 and 104 -106.   
12 DOC Aluminium Report, (Exhibit NOR -2), p. 21.   
13 DOC Aluminium Report, (Exhibit NOR -2), pp. 21 -22. 
14 DOC Aluminium Report, (Exhibit NOR -2), p. 104.  
15 DOC Aluminium Report, (Exhibit NOR -2), p. 104.  
16 DOC Aluminium Report, (Exhibit NOR -2), p. 104.  WT/DS552/R/Add.1  
 
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  15. The investigation covers the following three industry segments: (1) semi -finished BOF steel; 
(2) semi -finished EAF steel; and (3) finished steel products. The Steel Report focusses 
overwhelmingly on the BOF steel segmen t.  
16. The DOC Steel Report concludes that steel imports are "substantially impact[ing] " the 
"economic welfare " of the US steel industry, and threaten to impair "national security ".17 The Report 
recommends that "the President take corrective action pursuant t o the authority granted by Section 
232".18  
IV. THE PANEL'S QUESTIONS ON JURISDICTION UNDER ARTICLE 6.2 OF THE DSU  
17. During the proceedings, the Panel asked the Parties a number of questions about the proper 
interpretation of Article 6.2 of the DSU.19 The Pa nel did not indicate any concern about the 
consistency of Norway 's Panel request with the requirements of that provision. Nor did the United 
States, despite repeated questions from the Panel, assert that Norway 's Panel request was deficient. 
In any event, in reply to the Panel 's questions, Norway demonstrated to the Panel that its Panel 
request meets the requirements of Article 6.2.20  
V. THE UNITED STATES' MEASURES ARE INCONSISTENT WITH THE SAFEGUARDS 
AGREEMENT   
18. In this section, Norway  first sets out its arguments that the US import tariffs and quotas are 
safeguards. Second , Norway turns to its arguments that the US import tariffs and quotas are not 
carved out of the Safeguards Agreement by Article 11.1(c) of that Agreement. Third, Norway 
summarises its arguments that the US import tariffs and quotas are inconsistent with a number of 
provisions of the Safeguards Agreement .  
A. The US import tariffs and quotas are safeguards  
1. The US import tariffs and quotas possess the constituent features of a 
safeguard measure  
19. Article 1 of the Safeguards Agreement  provides that "this Agreement establishes rules for the 
application of the safeguard measures which shall be understood to mean those provided for in 
Article XIX of the GATT 1994 ".21  
20. Article XIX imposes obligations on safeguard measures, which are substantially developed in 
the Safeguards Agreement . The provision does not expressly define a safeguard measure.  
21. Although the provisions of Article XIX are not definitional, the Appellate Bod y has found that 
Article XIX sheds light on the character  of a safeguard measure. In particular, the types of measures 
"provided for " in Article XIX are those "designed to secure a specific objective , namely preventing 
or remedying serious injury to the Me mber's domestic industry ".22 To be a safeguard measure, 
therefore, a challenged measure must have "a demonstrable link to the objective of preventing or 
remedying injury ".23 
22. Connected to this objective, the Appellate Body also identified two "constituent features " of a 
"safeguard measure ". The measure must be designed to: (i) suspend, modify or withdraw a GATT 
1994 obligation; and (ii) prevent or remedy serious injury to the M ember 's domestic industry.24 If a 
measure possesses these features, it is a safeguard.  
 
17 DOC Steel Report, (Exhibit NOR -1), pp. 55-57.  
18 DOC Steel Report, (Exhibit NOR -1), p. 57.    
19 See Norway’s responses to Questions 82 -88. 
20 See Norway’s responses to Questions 82 -88. 
21 Emphasis added.  
22 Appellate Body Report, Indonesia – Safeguards , para. 5.56 . 
23 Appellate Body Report, Indonesia – Safeguards , para. 5.56 . 
24 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  See also Norway’s response to 
Question 5.   WT/DS552/R/Add.1  
 
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  23. The Appellate Body explained that a panel's determination of whether a measure possesses 
these two "constituent features" must be made on the basis of objective consider ations. Specifically, 
a panel must "assess the design, structure and expected operation of the measure as a whole".25 
In so doing, it must consider any factor that sheds light on a measure's design, structure and 
expected operation.26 These factors include , but are not limited to, the domestic characterisation of 
the measure and any notification of the measure as a safeguard.27 No one factor is decisive; the 
relative importance of any given factor will vary according to the specific measure at hand.28  
24. The importance of the objective characterisation of a measure is exemplified by Article 8 of 
the Safeguards Agreement . Article 8 affords exporting Members certain rights to counterbalance the 
effects of a safeguard, without pursuing dispute settlement. This ri ght – which is particular to the 
Safeguards Agreement  – is regularly used by exporting Members. Thus, the failure to properly 
characterise a measure as a safeguard has material consequences for an exporting Member. For this 
reason, the Safeguards Agreement  cannot be interpreted in a way that diminishes the exporting 
Member's right to take counterbalancing action, by placing the proper characterisation of a measure 
alleged to be a safeguard, within the gift of the importing Member.  
25. In the present dispute, the design, structure and operation of the US import tariffs and quotas 
demonstrate objectively that they are designed to: (i) suspend, modify or withdraw GATT 1994 
obligations; and (ii) prevent or remedy serious injury to US industry.29  
26. With respect to the  first constituent feature, the import tariffs are applied in excess of the US 
bound rate and are, therefore, designed to suspend the United States' obligations under Article 
II:1(a). The import quotas are designed to restrict imports of the relevant produ cts and are, 
therefore, designed to suspend the US obligations under Article XI:1 of the GATT 1994, which 
prevents the imposition of quantitative restrictions.  
27. With respect to the second constituent feature, the DOC Reports made findings that there 
were " increased imports"; that there was "serious injury" to the domestic steel and aluminium 
industries; and that this injury was caused by increased imports.30 Both DOC Reports also 
demonstrate that, having found serious injury caused by increased imports, the  United States 
adopted the import tariffs with the objective of remedying that injury.31  
28. In addition, statements by President Trump and other US officials demonstrate that the import 
tariffs and quotas were designed to remedy serious injury to the domesti c industry. For example, in 
the period immediately surrounding the announcement of the import tariffs, President Trump, in 
adopting the Proclamations at issue, made the following statements:  
• "To protect our Country, we must protect American Steel! #AMERICA  FIRST";32  
• "We must protect our country and our workers. Our steel industry is in bad shape. IF 
YOU DON'T HAVE STEEL, YOU DON'T HAVE A COUNTRY!";33 
•  "We are on the losing side of almost all trade deals. Our friends and enemies have 
taken advantage of the U.S. for many years. Our Steel and Aluminum industries are 
dead. Sorry, it's time for a change! MAKE AMERICA GREAT AGAIN!";34 
 
25 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  See also Norway’s response to 
Question 5.  
26 Appellate Body Report, Indonesia – Iron or  Steel Products , para. 5.60.  See also Appellate Body 
Report,  Japan – Alcoholic Beverages , p. 29; Appellate Body Reports, Argentina – Import Measures , para. 
5.217; Appellate Body Report, China – Raw Materials , para. 7.418.  
27 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  
28 Appellate Body Repo rt, Indonesia – Iron or Steel Products , para. 5.64.   
29 Norway’s first written submission, paras. 107 -156.  Norway’s response to Question 3, paras. 33 -36; 
Norway’s second written submission, paras. 17 -32; Norway’s response to Question 88, para. 26 and foot note 
88. 
30 Norway’s first written submission, paras. 113 -146.   
31 Norway’s first written submission, paras. 147 -155.   
32 Tweet by President Trump, 5 March 2018, (Exhibit NOR -33).  
33 Tweet by President Trump, 2 March 2018, (Exhibit NOR -34).  
34 Tweet by President Trump, 4 March 2018, (Exhibit NOR -36). WT/DS552/R/Add.1  
 
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  29. Additionally, at a press conference announcing the aluminium and steel import tariffs, 
President Trump stated:  
• "[Aluminium and steel] will have protection for the first time in a long while, and you 're 
going to regrow your industries ";35 
• "So we 'll probably  see you sometime next week. We 'll be signing it. And you will have 
protection for the first time in a long while, and you 're going to regrow your 
industries ".36 
30. The Secretary of Commerce described the aluminium and steel import tariffs in similar terms 
to the President, confirming that they have a protectionist objective:  
• "The President has put in place tariffs and quotas that are enabling American steel and 
aluminum industries to get back on their feet ";37  
• "The remarkable revitalization of America 's meta l industries would not be happening 
without President Trump 's Section 232 tariffs ".38  
31. The evidence, therefore, shows that the US import tariffs and quotas were designed to prevent 
or remedy serious injury to the US industry.  
2. Neither notification nor c onsultation is a "constituent feature" of a 
safeguard measure  
32. The United States accepts that the two "constituent features " just identified are "necessary to 
establish that a safeguard measure exists ".39 It does not contest that its measures possess these 
features. However, it asserts that, for a measure to be a safeguard, the adopting Member must also 
have: (1) notified its measure as a safeguard, and (2) consulted exporting Members.40 The effect of 
the US arguments is that a Member is permitted to decide,  for itself, whether its measure is or is 
not characterised as a safeguard. Norway disagrees with this view.  
33. In the following sections, Norway first explains that the United States ' argument runs contrary 
to well -established jurisprudence . Norway then expl ains that the US examples of WTO provisions 
that require notification in order properly to be invoked are inapposite for the present dispute.  
• The United States' argument runs contrary to well -established jurisprudence  
34. As an initial matter, in Indonesia – Iron or Steel Products , the Appellate Body expressly 
addressed the relevance of notification of a measure as a safeguard. It found that notification is one, 
non-dispositive "factor " to be considered in assessing the des ign, structure, and expected operation 
of a measure to determine if it is a safeguard. Notification is not, though, a "constituent feature " of 
a safeguard.  
35. Moreover, as described above, the characterisation of a measure under the Safeguards 
Agreement  turns on "objective considerations ", in particular the "design, structure and expected 
operation of the measure as a whole ".41 Thus, even though a Member has the right to adopt  a 
 
35 Remarks by President Trump in Listening Session with Representatives from the Steel and Aluminum 
Industry, 1 March 2018, (Exhibit NOR -41). 
36 Remarks by President Trump in Listening Session with Representatives from the Steel and Aluminum 
Industry, 1 March 2018, (Exhibit NOR -41). 
37 “Leveling the playing field for American workers”, CNBC, 5 October 2018, (Exhibit NOR -42). 
38 “US Commerce Se cretary defends steel, aluminium tariffs; points to China”, S&P Global, 19 July 
2018, (Exhibit NOR -43).   
39 The United States’ response to Question 5(a), para. 9; Norway’s response to Question 13, para. 47.   
40 The United States’ response to Question 13, p ara. 47.   
41 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  See also Norway’s response to 
Question 5.   WT/DS552/R/Add.1  
 
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  particular measure, that Member does not have the right to determine , for itself, the characterisation 
of its measure under the covered agreements.42 
36. This idea is not novel. Panels and the Appellate Body have consistently confirmed that the 
WTO adjudicator, and not the respondent, decides on the WTO characterisation of a measure, on 
the basis of objective considerations.  
37. WTO adjudicators have applied this approach unwaveringly across WTO provisions. Whenever 
a WTO provision imposes obligations regarding measures of a particular type, the WTO adjudicator, 
not the respondent , decides if a measure is of the relevant type. For example, under Article III of 
the GATT 1994, a respondent is entirely "free" to adopt an "internal tax ". However, the respondent 
is not, thereby, "free" to decide for itself that its measure is not an "internal tax " subject to Article 
III obligations.43 
38. Article XIX is the same: a Member is certainly "free" to adopt a safeguard measure. However, 
it is not thereby free to decide that its measure is not a safeguard subject to Article XIX and 
Safeguards Agreem ent obligations.  
39. Consider, by analogy, an example from domestic law. Under Swiss law, an individual is "free" 
to make certain deductions from their taxable income. The existence of this right to make deductions 
does not, however, mean that the individual i s also "free" or enjoys the right to decide if a particular 
expense is deductible under Swiss law. These are two separate questions: the existence of the right 
to make deductions does not imply the existence of a right to decide that a particular expense i s 
deductible. Similarly, the existence of a WTO Member 's right to take a safeguard measure, does not 
imply that the existence of a right to decide if a measure is a safeguard. Once again, it is the 
adjudicator that decides on the WTO characterisation of a measure, on the basis of objective 
considerations.  
• The United States' examples of provisions requiring invocation through 
notification are inapposite  
40. The United States has pointed to a number of WTO provisions that it asserts require  
notification in order properly to be invoked. For the United States, these other provisions provide 
useful, even decisive, guidance regarding the relevance of notification under Article XIX of the GATT 
1994 and the Safeguards Agreement . However, the examp les provided by the United States involve 
WTO provisions of a fundamentally different nature than Article XIX of the GATT 1994, and therefore 
offer no insight into the role of notification under that provision.  
41. The covered agreements contain two types of provision: those that address acts taken on the 
domestic plane, and those that address acts taken on the international, or WTO, plane. Notification 
requirements serve a distinct purpose for each of these two types of provision.  
42. For acts taken on the WTO p lane, such as those referred to by the United States, notification 
is one of the required WTO procedural steps that must be met for a WTO act to come into existence 
and effect. If a Member fails to make the requisite WTO notification, it fails to follow th e proper 
procedures to bring the relevant WTO act into existence. The Member 's failure to notify does not, 
however, involve the violation of a WTO obligation. Thus, WTO notification pertains to the existence 
and effectiveness of a WTO act, and not to the w rongfulness of a Member 's conduct under WTO law.  
43. For domestic acts, such as safeguard measures, the opposite is true. A domestic act comes 
into existence  under domestic law, and may then violate  WTO obligations. Depending on the 
characterisation of the act  under WTO law, the applicable WTO obligations may include notification 
obligations. If a Member fails to make a required WTO notification, the domestic act continues to 
exist, and the Member engages in internationally wrongful conduct that violates the WT O notification 
 
42 See, e.g., Appellate Body Report, Chile – Alcoholic Beverages , para. 62; Appellate Body Report, US – 
Softwood Lumber IV (Article 21.5 – Canada) , para. 77; Appellate Body Report, US – Zeroing (EC) (Article 21.5 
– EC), para. 204; Panel Report, EC – Asbestos , paras. 8.83 -8.99; Panel Report, India – Autos , para. 7.224.   
43 The United States argues that the words “shall be free” in Article XIX:1(a) of the GATT 1994 means 
that the provision affords Members the right to adopt a safeguard measure.  Members  may opt to exercise this 
right by following certain requirements, inc luding consultation with other Members.  See, e.g.,  United States’ 
response to Question 4, paras. 5 -7.   WT/DS552/R/Add.1  
 
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  obligation. Thus, WTO notification does not pertain to the existence and effectiveness of domestic 
acts, but to the wrongfulness of a Member 's conduct under WTO law.  
44. In this case, as the United States accepted, safeguard measures are acts t aken on the 
domestic plane that may violate WTO obligations.44 The United States ' examples, therefore, do not 
provide support for its argument that notification is required in order for a measure to be 
characterised as a safeguard.  
B. The US import duties  and quotas are not carved out of the Safeguards 
Agreement  by Article 11.1(c) of that Agreement  
45. The United States erroneously argues that, even if its duties and quotas are, in principle, 
subject to the Safeguards Agreement , they are carved -out of that Agr eement by Article 11.1(c).45 
Article 11.1(c) applies to measures that are "sought, taken or maintained by a Member pursuant to 
provisions of GATT 1994 other than Article XIX ".  
1. The US import duties and quotas do not fall within the scope of Article 
11.1(c) 
46. For the United States, under Article 11.1(c), safeguard measures adopted pursuant to Article 
XIX are carved -out from the Safeguards Agreement in circumstances where that Member 
"attempt[ed] ", with its measure, to comply with some other GATT  1994 provis ion. The United States 
errs. Instead, pursuant to the conventional treaty interpretation, Article 11.1(c) applies to measures 
taken in conformity  with provisions of the GATT 1994 other than  – i.e., excluding – Article XIX.  
a. Legal standard  
i. "Sought, taken or maintained"  
47. While the parties disagree on the meaning of the term "sought ", this disagreement is academic 
since the present dispute concerns a measure that has been "taken " and is "maintained ". A Member 
"takes " a measure, if it "adopts " the measure. A Member "maintains " a measure where it "continues " 
the measure in a "specified state ", i.e., it continues the measure 's ongoing existence across time.  
ii. "Pursuant to"  
48. Norway and the United States have both expressed the view that the ordinary meaning of the 
term "pursuant to " is "following upon, consequent and  in conformance to ; in accordance with ".46 The 
parties also agree that the negotiating history supports this und erstanding.47 Thus, the parties agree 
that, in the context of Article 11.1(c), the term "pursuant to " means that a measure must satisfy or 
fulfil the legal requirements of the applicable "provisions … other than Article XIX ". 
iii. "provisions… other than Article XIX  
49. The parties disagree on the meaning of "provisions… other than Article XIX ". On the United 
States ' view, Article 11.1(c) excludes from the scope of the Safeguards Agreement  measures that 
are sought, taken or maintained pursuant to provisio ns of the GATT 1994, including  Article XIX. In 
other words, Article 11.1(c) applies in circumstances where a safeguard measure includes both 
Article XIX and some other GATT 1994 provision as its legal basis. The United States ' interpretation 
erroneously in troduces two categories of safeguard measures: one governed by the Safeguards 
Agreement and another exempt from that Agreement .  
 
44 The United States’ closing statement at the second substantive meeting, para. 27.  
45 The United States’ first written submission para. 56; the United States’ response to Question 19, 
para. 64;  the United States’ response to Question 20, paras. 65 -74.   
46 Norway’s response to Question 96, para. 16.  See also, Norway’s  response to Question 20, paras. 
238-242; United States’ response to Question 20, paras. 69 -71. 
47 Norway’s comments on the United States’ response to Question 96, paras. 15 -20; United States’ 
response to Question 96, para. 6.   WT/DS552/R/Add.1  
 
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  50. As Norway has explained, the ordinary meaning of the term "other than " is "apart from ", 
"besides ", "but not ", and "except ".48 Article 11.1(c) carves out, from the Safeguards Agreement , 
measures that are consistent with provisions of the GATT 1994 other than – that is, excluding  – 
Article XIX of the GATT 1994.49 In other words, where Article XIX serves as the legal basis for a 
meas ure, the Article 11.1(c) carve -out will not apply. Therefore, measures that have Article XIX as 
their legal basis are not measures taken pursuant to provisions of the GATT 1994 "other than " Article 
XIX. Norway 's view is also supported by the context, the o bject and purpose, and the negotiating 
history.  
51. As context, Articles 1 and 11.1(a) state, without qualification, that safeguard measures are 
subject to Article XIX and the Safeguards Agreement . In both cases, although the drafters could 
have added that th ese key scope provisions were "… subject to Article 11.1(c) ", they did not. Thus, 
they do not support to the US view that Article 11.1(c) introduces a second category of safeguard 
measure that is exempt from the Safeguards Agreement .  
52. With respect to the object and purpose, the effectiveness of the safeguard disciplines would 
be undermined if a safeguard measure did not need to comply with the safeguard disciplines just 
because some other, non -safeguard provision, also applies to the me asure. It would be as if an anti -
dumping measure did not need to comply with the Anti-Dumping Agreement , simply because the 
measure also entailed countervailing action against subsidies.  
53. The United States ' approach would lead to absurd consequences: a saf eguard measure would 
escape the safeguard disciplines if a Member merely asserted that it had tried to take ( "sought ") a 
safeguard measure consistent with some other provision of the GATT 1994, even if the measure did 
not comply with any GATT  1994 provisio n at all.  
54. The negotiating history also supports Norway 's position. Both parties cite negotiating history 
to show that Article 11 originally consisted of a single provision, which prohibited all trade -restrictive 
measures, subject to two exceptions separat ed by the word "or". The first exception became Article 
11.1(a), and applied to measures that "conform[] with Article XIX "; and the second exception 
became Article 11.1(c), and applied to measures "consistent with other provisions  of the General 
Agreement ".50 Thus, as a matter of logic, the word "other " in the second exception necessarily  
referred to the universe of GATT  1994 "provisions " "except for ", "apart from ", "besides ", "excluding " 
Article XIX , because Article XIX was already addressed in the first e xception.  
b. The US import tariffs and quotas are not "sought, taken or maintained… pursuant 
to provision of the GATT 1994 other than Article XIX"  
55. The US import tariffs and quotas are safeguard measures which were "taken ", and are 
"maintained ", under Article XIX of the GATT 1994. Because the legal basis of these measures 
includes  Article XIX, Article 11.1(c) does not apply because the legal basis is not "other than " Article 
XIX.  
56. Even if the Panel were to find that Article 11.1(c) carves -out sa feguard measures, the US 
import tariffs and quotas are not "taken " or "maintained " consistently with any other provision of 
the GATT 1994. While the United States invokes Article XXI of the GATT 1994 to justify its measures, 
none of its measures was "taken " or is "maintained " consistently with the requirements of that 
provision.  
2. The relationship between the subparagraphs of Article 11.1  
57. For the Panel, the parties ' arguments under Article 11.1(c) raised important questions 
concerning the relationship bet ween the three subparagraphs of Article 11.1. In the following, 
Norway draws together its responses to those questions.  
 
48 See Oxford English Dictionary (“OED”) definition of “other than”, last accessed 4 February 2020, 
(Exhibit NOR -102) . 
49 Norway’s interpretation is based on the ordinary meaning, context and object and purpose of that 
provision.  See Norway’s response to Question 20, paras. 199-242.   
50 Uruguay Round - Group of Negotiations on Goods (GATT) - Negotiating Group on Safeguards - Draft 
Text of an Agreement, 31 October 1990, (Exhibit NOR -103) .   WT/DS552/R/Add.1  
 
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  58. Subparagraph (a)  states simply that safeguard measures – that is, measures provided for 
in Article XIX of the GATT 1994 – must conform to the obligations in Article XIX and the Safeguards 
Agreement . Norway has demonstrated that both the US import tariffs and quotas are subject to 
subparagraph (a).51 
59. Subparagraph (b)  prohibits a particular form of trade -restrictive measure, in particular, one 
that affords protection and is applied with the acquiescence of the exporting Member. The scope of 
Article 11.1(b) extends beyond measures that are safeguard to include non -safeguard measures 
with the features set forth in subparagraph (b). Norway has demonstrated in its submissions to the 
panel that the US import quotas are (safeguards) subject to subparagraph (b).  
60. Subparagraph (c)  carves -out from the Safeguards Agreement  measures that are "sought, 
taken or maintained pursuant to  provisions of the GAT T 1994 other than [i.e., apart from] Article 
XIX". Subparagraph (c) does not carve out safeguard measures covered by subparagraph (a) 
because these measures are not taken pursuant to provisions that exclude Article XIX. Subparagraph 
(c) does, however, appl y to non -safeguard measures that fall under subparagraph (b). Norway has 
demonstrated that both the US import tariffs and quotas are safeguards that fall under subparagraph 
(a). These measures, therefore, do not benefit from the carve -out in sub -paragraph (c).  
C. The measures at issue are inconsistent with the Safeguards Agreement  
61. Norway has presented arguments that demonstrate the US measures are prima facie 
inconsistent with Articles 2.1, 2.2, 5.1, 11.1(b), 12.1 and 12.2 of the Safeguards Agreement . The 
United  States has not provided a substantive rebuttal to Norway 's arguments under these provisions. 
Before turning to its claims of violation under the Safeguards Agreement , Norway sets out the 
standard of review under that Agreement.  
1. Standard of review under the Safeguards Agreement  
62. For claims brought under the Safeguards Agreement , Article 11 of the DSU requires a panel 
to conduct an "objective assessment " of the matter, in light of the specific obligations contained in 
the Safeguards Agreement .52  
63. Under the Safeguards Agreement a panel 's "objective assessment " is comprised of two 
elements . First, a panel must consider whether the competent authority has considered all the 
relevant factors. Second , a panel must consider whether the authority has provided a "reasoned and 
adequate " explanation of how the facts suppo rt their determination. The lack of a "reasoned and 
adequate " explanation by an authority is reason in and of itself to find a violation of the relevant 
provision.  
2. The import tariffs are inconsistent with Article 2.1 of the Safeguards 
Agreement  
a. Legal standard  
64. Under Article 2.1, there are three requirements for the imposition of a safeguard.  
65. First, the imposing Member must properly demonstrate the existence of an increase in 
imports . The increase in imports can be: (1) an absolute increase ( i.e., an i ncrease by tonnes or 
units of the imported product); or (2) a relative increase ( i.e., an increase of imports relative to 
domestic production). In both cases, the authority must demonstrate, through a "reasoned and 
 
51 See Norway’s first written submission, paras. 107 -156; Norway’s response to Question 3, paras. 33 -
36; Norway’s second written submission, paras. 17 -32; Norway’s response to Question 88, para. 26 and 
footnote 88.  
52 Appellate Body Report, Softwood Lumber V I (Article 21.5 – Canada ), para. 92; see also  Appellate 
Body Report, US – Countervailing Duty Investigation on DRAMS , para. 184.  WT/DS552/R/Add.1  
 
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  adequate explanation "53, that there was an increase in imports during the period of investigation 
that is "sudden enough, shar p enough, and significant enough " to cause serious injury.54  
66. Further, the authority cannot establish an increase in imports "through a simple mathematic 
comparison of data ", i.e., by comparing imports in one year against imports in another year.55 
Instead , the authority must evaluate  (and explain ) the significance of intervening trends  of imports 
– including their "speed and direction " – over the period of investigation.56 
67. Second , the imposing Member must properly demonstrate the existence of serious injur y. 
This entails two steps: (1) defining the "domestic industry "; and (2) establishing "serious injury " 
(or threat thereof) to that industry.  
68. With respect to the first step, under Article 4.1(c), the "domestic industry " is comprised of all 
"producers " of products that are like or compete directly with the subject imported products.  
69. In US – Hot-Rolled Steel , the Appellate Body noted that, "where investigating authorities 
undertake an examination of one part of a domestic industry, they should, in principle, examine, in 
like manner , all of the other parts that make up the industry, as well as the industry as a whole ".57 
Otherwise, the authority 's explanation "may give a misleading impression of the data relating to the 
industry as a whole ".58  
70. With respect to the second step, the scope of the serious injury assessment must be 
co-extensive with the scope of the domestic industry. If the authority 's serious injury assessment 
does not fully account of all parts of the domestic industry, the serious inju ry determination is 
inherently flawed.  
71. Third, the imposing Member must determine that "a genuine and substantial relationship of 
cause and effect " exists between increased imports and injury.59 Article 4.2(b) requires a two -step 
analysis: (1) demonstrating  the causal link between increased imports and serious injury; and (2) 
identifying any injury caused by factors other than the increased imports, and not attributing this 
injury to the increased imports.60 
b. The DOC fails to properly determine that the conditions in Article 2.1 are 
present  
72. The DOC fails to adequately determine the existence of any of the three requirements in Article 
2.1. 
73. First, the US DOC fails to demonstrate that there is an increase in imports "sudden enough, 
sharp enough, and signifi cant enough " to cause serious injury because, in its assessment, it fails to 
consider all the relevant industry segments. The US DOC also fails to provide a reasoned and 
adequate explanation for its findings.  
74. As regards aluminium , the Aluminium Report only  makes findings with respect to two of the 
three groups of subject aluminium products, namely, primary aluminium  and downstream aluminium  
products.61 The DOC does not consider or explain whether there was an increase in imports with 
respect to secondary al uminium . 
 
53 Appellate Body Report , US – Steel Safeguards , paras. 302 -303. 
54 Appellate Body Report,  Argentina – Footwear , para. 131; see also  Panel Report, Ukraine – Passenger 
Cars, para s. 7.147-7.148 and Panel Report, US – Wheat Gluten , paras. 8.31 -8.33. 
55 See Panel Report, Ukraine – Passenger Cars , para. 7.132; Panel Report, Argentina – Footwear , para. 
8.159, and Appellate Body  Report, Argentina – Footwear , para. 129 .   
56 Panel Report, Argentina – Footwear , para. 8.1 59.   
57 Appellate Body Report, US – Hot-Rolled Steel , para. 204 .  Emphasis added.   
58 Appellate Body Report, US – Hot-Rolled Steel , para s. 204-205.  Emphasis added . 
59 Appellate Body Report, US – Wheat Gluten , para. 69;  see also Appellate Body Report, US – Lamb , 
para. 179.  
60 See Appellate Body Report, US – Line Pipe , para. 208. 
61 DOC Aluminium Report, (Exhibit NOR -2), pp. 70 -75. WT/DS552/R/Add.1  
 
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  75. As regards steel , the Steel Report conducts an endpoint -to-end-point comparison, from 
2011-2017, which is, as described, a deficient; the analysis must consider intervening trends to 
determine the rate and significance of an increase in imports. M oreover, the DOC failed to address 
the rate and significance of any increase in imports for the different industry segments.  
76. Second , for both aluminium and steel, the US DOC  fail to demonstrate the existence of "serious 
injury " because it focuses overwhel mingly on ailing segments of the domestic industries, and fails 
adequately to take into account the position of thriving segments of the industry that produce like 
or directly competing products.  
77. As regards aluminium , the DOC Aluminium Report finds seriou s injury on the basis of an 
assessment of the primary aluminium segment alone. The Report fails to consider the secondary 
and downstream aluminium segments, which the USITC had found in a separate investigation were 
thriving.  
78. As regards steel , the Report f ocusses overwhelmingly on a decline in production in the ailing 
BOF steel segment to conclude that there is serious injury to the domestic steel industry at as a 
whole. The Report provides only a limited explanation of injury to the thriving EAF steel segm ent.  
79. Third, the DOC Reports fail properly to determine the existence of a causal link between 
aluminium and steel imports, respectively, and the alleged serious injury. For both aluminium  and 
steel , the DOC failed to make a proper injury determination. In  these circumstances, the DOC is 
unable to engage in a proper examination of potential causes of improperly -assessed injury. 
Moreover, for both aluminium and steel, the DOC failed to consider how factors other than the 
increased imports – that the DOC itse lf identified – may have accounted for the injury identified.  
80. For all these reasons, the US import tariffs are inconsistent with Article 2.1 of the Safeguards 
Agreement . 
3. The import tariffs are inconsistent with Article 2.2 of the Safeguards 
Agreement  
81. Article 2.2 embodies the most favoured nation ( "MFN") obligation with respect to the 
application of safeguard measures. Thus, an importing Member must apply its safeguard measures 
to imported products from all sources, without consideration of o rigin. A Member cannot, therefore, 
apply safeguard measures to imports from one Member, and fail to apply the same safeguard 
measures to imports from another Member.  
82. After having found that increased imports from all sources cause serious injury to its dom estic 
aluminium and steel industries, the United States imposed safeguard measures, in the form of import 
tariffs, on imported aluminium and steel products.  
83. However, the United States does not apply these import tariffs to imported aluminium and 
steel prod ucts from certain Members. In particular, imports from four Members (Australia, Argentina, 
Brazil, and South Korea) are exempt from the import tariffs. Thus, the application of the safeguard 
measures depends on the origin of the products: imports from the four Members are exempt from 
the import tariffs, whereas imports from other Members are subject to them. This violates Article 
2.2 of the Safeguards Agreement .  
4. The aluminium and steel import tariffs at issue are inconsistent with 
Article 5.1 of the Saf eguards Agreement  
84. Article 5.1 requires a Member to impose a safeguard measure only to the extent necessary to 
prevent or remedy serious injury caused by an increase in imports. In other words, a safeguard 
must be calibrated to the objective of preventing or remedying serious injury to the Member 's 
domestic industry.62 In circumstances where an authority 's determination of serious injury is 
 
62 Panel Report, Chile – Price Band System , para. 7.183. Emphasis original.  WT/DS552/R/Add.1  
 
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  inconsistent with the Safeguards Agreement , then, as a consequence , safeguard measure is not 
properly calibrated under  Article 5.1.63  
85. Norway has demonstrated that the DOC failed to make a proper serious injury determination. 
Therefore, absent a proper determination that injury exists, there can be no "rational connection " 
between the import tariffs, and the objective of preventing or remedying serious injury. The import 
tariffs, therefore, violate Article 5.1 of the Safeguards Agreement .  
5. The import quotas are inconsistent with Article 11.1(b) of the Safeguards 
Agreement  
86. The first sentence of Article 11.1(b) prohibits measures that: first, operate to restrict trade 
between exporting and importing Members, whether applied on the export or import side; second , 
afford protection; and third, are imposed by, or with the acquiescence/agreement of, the exporting 
Member(s).64 
87. The import quotas  agreed between each of Argentina, Brazil and South Korea, on the one 
hand, and the United States, on the other,  possess the features just outlined. First the quotas, which 
limit import volumes, operate to restrict trade between an the rele vant exporting Member and the 
United States. Second , the quotas afford protection to the US aluminium and steel industries by 
restricting imports to a specified quantity, and reducing import competition. Third, the quotas were 
imposed with the acquiescence  of the exporting members. Therefore, the import quotas are 
prohibited under Article 11.1(b).  
6. The aluminium and steel import tariffs are inconsistent with Articles 12.1 
and 12.2 of the Safeguards Agreement  
88. Article 12.1 of the Safeguards Agreement  requires a Member to notify the Safeguards 
Committee of: the initiation of any safeguard investigation; a finding of serious injury or threat 
thereof; and the decision to apply a safeguard measure. Article 12.2 requires the imposing Member 
to pro vide the Safeguards Committee with all information pertinent to the investigation and to the 
safeguard measure being imposed. The United States has not notified the aluminium and steel 
import tariffs to the Committee on Safeguards. The United States, there fore, violates Articles 12.1 
and 12.2 of the Safeguards Agreement . 
VI. THE UNITED STATES' MEASURES ARE INCONSISTENT WITH THE GATT 1994  
A. The import tariffs are inconsistent with Article II:1 of the GATT 1994  
89. Article II:1(a) of the GATT 1994 prohibits an importing Member from according to imported 
products treatment that is less favourable than that provided in the Member 's Schedule. Article 
II:1(b) elaborates on the principle articulated in paragraph (a), imposing disciplines on "ordinary 
customs duties " and any "other duties or charges ".65 The Appellate Body has said that a violation of 
Article II:1(a) entails a violation of Article II:1(b).66 
90. The United States ' import tariffs exceed the United States ' bound rate for the products in 
question.  Therefore, they are not consistent with the United States ' obligations under Article II:1(a) 
and (b) of the GATT 1994.67 
B. The import quotas violate Article XI  :1 of the GATT 1994  
91. Article XI:1 prevents Members from imposing quantitative restrictions. Qua ntitative 
restrictions are defined broadly as prohibitions and restrictions, other than duties, taxes or charges. 
 
63 Appellate Body Re port, US – Line Pipe , para. 261.  
64 Norway’s first written submission, paras. 392 -420; Norway’s response to Question 18.   
65 In relation to the second sentence of Article II:1(b), t he Appellate Body indi cated that “ the obligation 
to pay [] must accrue at the  moment and by virtue of or, in the words of Articl e II:1(b), ‘on’, importation”.  
Appellate Body Report, China – Auto Parts , para. 158.  
66 Appellate Body Report, Argentina – Textiles  and Apparel , para. 47; Panel  Report , EC – Chicken Cuts , 
paras. 7.64 -7.65;  and Panel Reports, EC – IT Products , para. 7.747.  
67 Norway’s first written submission, paras. 426 -437.   WT/DS552/R/Add.1  
 
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  The US import quotas meet this definition and are, therefore, not consistent Article XI:1 of the GATT 
1994.68  
C. The country -wide tariff exem ptions violate Article I:1 of the GATT 1994  
92. Article I:1 of the GATT 1994 prohibits the discriminatory treatment of like products originating 
in different WTO Members. A Member violates Article I:1 if: (i) the measure at issue falls within the 
provision 's scope of application; (ii) the imported products at issue are "like" within the meaning of 
Article I:1; (iii) the measure at issue confers an "advantage, favour, privilege, or immunity " on a 
product originating in the territory of any country; and (iv) the advantage so accorded is not 
extended "immediately " and "unconditionally " to "like" products originating in the territory of all 
Members.  
93. To recall, the country -wide tariff exemption exempts certain Members from the application of 
the United States ' import tariffs for aluminium and steel goods. The goods in question are like 
aluminium and steel products.69  
94. By exempting Australia from the additional import tariffs , the United States confers an 
"advantage " on this Member, which is not "immediately " and "unconditionally " extended to the "like" 
aluminium and steel products of all other Members, in violation of Article I:1 of the GATT 1994.70  
95. For Argentina, Brazil and South Korea, the United States offers these Members an advantage 
because it permits the m to decide, on the basis of their own commercial interests, whether they 
would prefer market access for an unrestricted quantity subject to a tariff, or access for a pre -defined 
quantity under a quota, without payment of a tariff. This advantage is not ex tended "immediately 
and unconditionally " to like aluminium and steel products originating in countries that do not qualify 
for an exemption, in violation of Article I:1 of the GATT 1994.  
D. The country -wide tariff exemptions and the production exclusions v iolate 
Article X:3(a) of the GATT 1994  
96. Article X:3 establishes "certain minimum standards for transparency and procedural fairness 
in the administration of trade regulations ".71 To establish an inconsistency with Article X:3(a), a 
complainant must establis h that the respondent: (1) administers  laws, regulations, decisions or 
rulings of the kind described in Article X:3(a); and (2) does so in a manner that is non-uniform , 
partial  and/or  unreasonable .72  
97. In US – Shrimp , the Appellate Body found that a number of aspects of the US measure then 
at issue were "contrary to the spirit " of Article X:3(a), including: (i) the fact that the process was 
"singularly informal and casual ";73 (ii) the absence of a "formal written, reasoned decision, whether 
of acceptance or rejection ";74 and (iii) the ability of Members to "be certain whether [the measures] 
are being applied in a fair and just manner ".75 
98. In this dispute, the United States ' administration of the country -wide tariff exemptions is 
unreasonable. This is demonstrated by (1) the absence of any administrative process that applicant 
countries should follow in seeking an exemption and (2) the use of inherently vague and undefined 
eligibility criteria. The country -wide tariff exemptions, therefore, violate Article X:3(a).76  
 
68 Norway’s first written submission, paras. 438 -466.   
69 Norway’s first writ ten submission, paras. 448 -449.   
70 Norway’s response to Question 1(b), Table 1; Norway’s responses to the Panel’s questions after the 
first substantive meeting, Annex 1.   
71 Appellate Body Report, US – Shrimp , para. 183.  The Appellate Body also underlined that “[i]nasmuch 
as there are due process requirements generally for measures that are otherwise imposed in compliance with 
WTO obligations, it is only reasonable that rigorous compliance with the fundamenta l requirements of due 
process should be required in the application and administration of a measure”.  Appellate Body Report, US – 
Shrimp , para. 182.  See also Panel  Report, Thailand – Cigarettes  (Philippines) , para . 7.868.  
72 Panel Report, Thailand – Cigarettes  (Philippines)  (Article 21.5 – Philippines ), para. 7.906.  
73 Appellate Body Report, US – Shrimp , para. 181.  
74 Appellate Body Report, US – Shrimp , para.  180.  
75 Appellate Body Report, US – Shrimp , para. 181.  
76 Norway’s first written submission, paras. 467 -534;  WT/DS552/R/Add.1  
 
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  99. The US administration of the product exclusions is unreasonable and partial. A US applicant 
may apply to the DOC for a particular aluminium/steel product to be ex cluded from the additional 
import tariffs, if certain grounds are met. However, US producers of the subject aluminium/steel 
goods have the right to object to such an application. When US producers make an objection, the 
evidence shows that the DOC typicall y defers to it. Through this process, therefore, US producers 
play a decisive role in deciding whether competing imported products are subject to additional import 
tariffs at the border. This amounts to an inherent conflict of interest in the administratio n of the 
measure that is both unreasonable and impartial.77 The administration of the product exclusions, 
therefore, violates Article X:3(a).  
VII. THE US MEASURES ARE NOT JUSTIFIED BY ARTICLE XXI OF THE GATT 1994  
100.  The United States asserts that its measures  are justified by Article XXI of the GATT 1994. The 
United States ' resort to Article XXI is premised on several errors in the interpretation of the provision. 
On the facts, the United States ' defense is built on ignoring critical but inconvenient facts, wh ich 
creates a rational disconnect between the proffered justification and the real world.  
A. Inapplicability of Article XXI to the Safeguards Agreement  
101.  At the outset, it is important to recall that Article XXI of the GATT 1994 offers a potential 
justificat ion for violations of the GATT 1994 alone, as made clear by the opening words of the 
provision, "Nothing in this Agreement shall… ".78 On its face, it does not justify a violation of an 
agreement other than the one referenced by the demonstrative "this", i.e., the GATT 1994.79 
102.  When Members intended a GATT 1994 exception to apply to another covered agreement, they 
included express language to that effect, as they did in the Import Licensing Agreement , the TRIMS 
Agreement , and the Trade Facilitation Agreement .80 However, no such language renders Article XXI 
of the GATT 1994 available as a justification for a violation of the Safeguards Agreement . 
103.  The United States asserts that, although the Safeguards Agreement does not refer to Article 
XXI of the GATT 1994, the exception is available because the Safeguards Agreement refers to, and 
elaborates on, Article XIX of the GATT 1994. If the US view were permitted, Articles XX and XXI of 
the GATT 1994 would be applicable, despite their express text ual limitation, to all the WTO goods 
agreements, including the SCM Agreement ,81 the Anti-Dumping Agreement ,82 the Customs Valuation 
 
77 Similar considerations led the Panel in Argentina – Hides and Leather  to find that the customs laws 
were administered in a partial manner.  See Panel Report, Argentina – Hides and Leather , para. 11.98.  
78 Emphasis added.  
79 Norway’s opening statement at the second substantive meeting, paras. 32 -39. 
80 Import Licensing Agreement , Article 1.10; TRIMS Agreement , Article 3; Trade Facilitation Agreement , 
Article 24.7.  
81 SCM Agreement , Articles 1.1(a)(2) (referring to GATT 1994 Article XVI), V(b) (referring to GATT 1994 
Articles II and XVI), 10 (referring to GATT 1994 Article VI), 11 (referring to GATT 1994 Article VI), 15.1 
(referring to GATT 1994 Article VI), 16.4 (referring to GATT 1994 Article XXIV:8(b)), 20.6 (referring to GATT  
1994 generally), 25.1 (referring to GATT 1994 Article XVI), 25.6 (referring to GATT 1994 Article XVI:1), 25.7 
(referring to GATT 1994 generally), 25.10 (referring to GATT 1994 Article XVI:1), 26.1 (referring to GATT 1994 
Article XVI:1), 27.9 (referring to  GATT 1994 generally), 30 (referring to GATT  1994 Articles XXII and XXIII), 
32.1 (referring to GATT 1994 generally); Annex I, item (l) (referring to GATT  1994 Article XVI).  
82 Agreement on Implementation of Article VI of the General Agreement on Tariffs and  Trade 1994, 
Articles 1 (referring to GATT 1994 Article VI), 2.7 (referring to GATT 1994 Article VI:1), 3.1 (referring to GATT 
1994 Article VI), 4.3 (referring to GATT 1994 Article XXIV), 5.2 (referring to GATT 1994 Article VI), 18.1 
(referring to GATT 1994 generally).  WT/DS552/R/Add.1  
 
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  Agreement ,83 the SPS Agreement ,84 the Agreement on Agriculture ,85 the TBT Agreement ,86 the 
Preshipment Inspection Agreement ,87 and the Rules of Origin Agreement .88 Indeed, a Member could 
even rely on Articles XX and XXI to avoid obligations under the DSU, because of references to Articles 
XXII and XXIII of the GATT 1994. On this view, the words "this Agreement " in Article XXI ( and in 
Article XX) would serve no purpose.  
104.  As such, if the Panel finds the United States to be in violation of the Safeguards Agreement , 
the United States ' assertions that its measures are justified by Article XXI are of no consequence.  
B. Interpretation of Article XXI  
105.  The United States asserts that, properly interpreted, Article XXI is self -judging.89 Norway 
disagrees.90 While Norway accepts that Article XXI confers discretion on Members to protect their 
essential security interests, this discretion is not unlimited.91 In particular, properly interpreted, (i ) 
the three sub -paragraphs set out objectively verifiable circumstances which a respondent must 
demonstrate; and (ii) the words "it considers " accord the respondent some, but not unlimited, 
discretion with respect to the choice of the "action " to which the  chapeau refers.  
1. Analysis under sub -paragraph (iii)  
106.  The three sub -paragraphs under Article XXI(b) set out "objective fact[s] " that are "amenable 
to objective determination ".92 In other words, the respondent must demonstrate with evidence, and 
the Panel must assess, the existence of the facts referenced in the sub -paragraphs  in an objective 
manner. Specifically, under sub -paragraph (iii), the existence of  a "war or other emergency in 
international relations " needs to be demonstrated objectively . 
107.  United St ates has explained, with reference to the ordinary meaning of the term, that that the 
term "emergency " in sub -paragraph (iii) means "[a] situation, esp. of danger or conflict, that arises 
unexpectedly and requires urgent attention ".93 Norway agrees.94  
108.  However, the United States attempts to evade its burden to establish the existence of an 
"emergency ". It argues that the subparagraphs are subject to the verb "consider " in the chapeau  
 
83 Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 , 
Preamble (referring to the “objectives of GATT 1994” and Article VII); Articles 7 (referring to GATT 1994 Article 
VII), 12 (referring to GATT 1994 Article X).  
84 SPS Agreement , Preamble (referring to GATT 1994 generally and to Article XX(b) in particular), 
Articles 2.4 (referring to GATT 1994 generally and to Article XX(b) in particular), 3.2 (referring to GATT 1994 
Article XX), 11 (referring to GAT T 1994 Articles XXII and XXIII).  
85 Agreement on Agriculture , Preamble (referring to “GATT rules and disciplines”), Articles 3.1 (making 
schedules under the agreement an integral part of GATT 1994), 5.1 (referring to GATT 1994 Article II:1(b)), 
5.8 (referri ng to GATT 1994 Articles XIX:1(a) and XIX:3), 12 (referring to GATT 1994 Article XI:2(a)), 13 
(referring to GATT 1994 in general and Articles II, VI, XVI, and XXIII:1(b), specifically), 19 (referring to GATT 
1994 Articles XXII and XXIII), 21.1 (referring to GATT generally).  
86 TBT Agreement , Preamble (referring to the objectives of GATT 1994), Article 14.1 (referring to GA TT 
1994  Articles XXII and XXIII).  
87 Preshipment Inspection Agreement , Preamble (referring to the “role of GATT”, “the responsiveness of 
the GATT  system ”, “the principles and obligations of GATT 1994”), Articles 2.2 (referring to GATT 1994 Article 
III:4), 2.6 (referring to the “situations” addressed in GATT 1994 Articles XX and XXI), 7 (referring to GATT 
1994 Article XXII), 8 (referring to GATT 1994 Article XXIII).  
88 Rules of Origin Agreement , (referring to the “role of GATT”, “the responsiveness of the GAT T system ”, 
“the objectives of GATT  1994”, “rights of Members under GATT  1994”), Articles 1.1 (referring to GATT 1994 
Article I:1), 1.2 (referring to GATT 1994 Articles I, II, III, IX, VI, XI and XIII), 2(g) (referring to GATT 1994 
Article X:1), 3(e) (refer ring to GATT 1994 Article X:1), (referring to GATT 1994 Article XXII), 8 (referring to 
GATT 1994 Article XXIII).  
89 See the United States’ comment on Norway’s response to Question 93.  
90 Norway’s opening statement at the second substantive meeting, paras. 29 -54.   
91 Norway’s response to Question 95.  
92 Panel Report, Saudi Arabia – Protection of Intellectual Property Rights , para. 7.244; Panel Report, 
Russia – Traffic in Transit , para. 7.71; Norway’s second written submission, paras. 103 -115. 
93 United States’ r esponse to Panel Question 36, para. 135; and United States’ response to Panel 
Question 51(a) -(c), para. 231.  
94 See Norway’s response to Panel Question 51, para. 434; Norway’s second written submission, para. 
108.   WT/DS552/R/Add.1  
 
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  and, as a result, the respondent is free to decide for itself if the subpa ragraphs are met.95 The United 
States errs.  
109.  The verb "consider " qualifies the terms of  the chapeau ; it does not qualify any words in the 
three sub -paragraphs. This flows from an interpretation of the words of Article XXI(b), in line with 
the rules of English grammar, and in a manner that ensures consistency among the various language 
versions.  
110.  The parties agree that the subparagraphs constitute a distinct grammatical unit with their own 
grammatical function. Indeed, Norway agrees with the United States  that the subparagraphs are 
"participial phrases "96 that function as adjectives modifying a noun. However, in an effort to apply 
the verb "consider " to the subparagraphs, the United States relies on what it acknowledges to be 
inconsistent use of a single r ule of English grammar, which gives rise to an incoherent interpretation 
of the text.97 
111.  The Vienna Convention  requires that treaty terms be given their "ordinary meaning ".98 There 
is nothing "ordinary " about a meaning premised on US arguments that entail i nconsistency and 
incoherence, which even the United States calls "less in line with rules of grammar and 
conventions ".99 Instead of this strained interpretation, ordinary meaning dictates that each of the 
subparagraphs modifies the same noun – "action " – which ensures interpretive consistency and 
coherence.100 The subparagraphs are not qualified by other words in the chapeau.  
112.  Finally, when the United States tries to reconcile its argument with the Spanish text, it resorts 
to deleting words from the Spanish t ext to stretch the verb "consider " into the subparagraphs.101 
The Panel must reject this remarkable argument. Rather, when accounting for all the words in the 
text, the Spanish version confirms the English and French versions: the subparagraphs modify the 
noun "action ".102 
113.  In sum, what matters under sub -paragraph (iii) is whether an emergency has, objectively, 
been shown to exist, on the facts. This is a matter for objective determination by the Panel, and not 
a question of what the United States "considers ". 
2. Analysis under the chapeau  
114.  If the Panel finds that the requirements of sub -paragraph (iii) are met, the respondent must 
demonstrate , under the chapeau , that it  "considers " the "action " "necessary for the protection of its 
essential security interests ".  
 
95 The United States’ first written submission, paras. 29 -33; The United States’ response to Question 90, 
paras. 27, 28; the United States’ response to Quest ion 92, para. 38; the United States’ comment on Norway’s 
response to Panel Question 90, para. 30; the United States’ second written submission, paras. 8 and 28; the 
United States’ opening statement at the first substantive meeting, para. 11; the United Sta tes’ response to 
Question 35, para. 123; the United States’ response to Question 36, paras. 125, 134, 136; the United States’ 
response to Question 37, para. 137; the United States’ response to Question 40, para. 148; the United States’ 
response to Question  55, para. 252.  
96 Norway’s response to Question 90, Figure 1.  The terms participial phrase and participle phrase are 
synonymous.  The word “participial” is the adjectival form of “participle”.    
97 The United States’ comment on Norway’s response to Questio n 90, para. 30 ; Norway’s opening 
statement at the first substantive meeting, paras. 43 -56; Norway’s response to Question 35, paras. 315 -317; 
Norway’s second written submission, paras. 70 -101; Norway’s response to Question 90; Norway’s comment on 
the United  States’ response to Question 90.  
98 The word “ordinary” means “[b]elonging to the regular or usual order or course of things; … occurring 
in the course of regular custom or practice; normal; customary; usual”.  Oxford English Dictionary (“OED”) 
definition of “ordinary”, last accessed 11 January 2021, (Exhibit NOR -149) .   
99 The United States’ comment on Norway’s response to Question 90, para. 30.  
100  Norway’s opening statement at the first substantive meeting, paras. 43 -56; Norway’s response to 
Question 35, paras. 315 -317; Norway’s second written submission, paras. 70 -101; Norway’s response to 
Question 90; Norway’s comment on the United States’ respo nse to Question 90.  
101 The United States’ general comment on Questions 41 -43, para. 166 (Table).  
102 Norway’s opening statement at the first substantive meeting, paras. 53 -56; Norway’s response to 
Question 35, paras. 316 -317; Norway’s second written submissio n, paras. 73 -101; Norway’s response to 
Question 90; Norway’s comment on the United States’ response to Question 90.  WT/DS552/R/Add.1  
 
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  115.  Although the words "which it considers ", in the chapeau , establish a degree of deference, the 
standard of review is not total deference . Rather, as past panels have established, the terms of the 
chapeau require a respondent to substantiate a p lausible basis in support of its consideration. 
Specifically, a respondent must:  
• First, articulate "its essential security interests ", so as to allow a panel to assess 
whether the asserted "interests " rise to the level of "essential " "security " interests;103 
• Second , set out, with argument and evidence, a plausible basis on "which it considers " 
there to be a "clear and objective " relationship between the "action " and the protection 
of the articulated essential security interest, such that the meas ure is apt to make a 
"material contribution " to the objective at stake.104  
116.  The United States disagrees. The United States argues that the words "which it considers " 
mean that a respondent is not required to "provide an explanation or produce evidence " to 
substantiate its assertions, and the Panel must afford the respondent total deference.105  
117.  The United States ' approach deprives the terms of the chapeau of their meaning.106 The 
chapeau  comprises a series of words and phrases, each of which must  be given their own meaning, 
with each constraining a respondent 's action. These are: "action ", "which it considers ", "necessary ", 
"for the protection of " and "essential security interests ". As Norway has explained, based on 
jurisprudence, the treaty inter preter cannot interpret two of these words ( "it considers ") in a way 
that deprives the others of their meaning.  
C. The United States Ignores Critical Facts  
118.  If the Panel decides that the exception is not entirely  self-judging, and that the Panel can, 
instea d, review the assertions made by the United States in support of its invocation of Article XXI, 
the United States ' defence must fail , because it has offered no coherent factual basis to substantiate 
its invocation of the exception.  
119.  In its initial submissio ns to the Panel, the United States offered no factual support whatsoever 
for its invocation of the security exception. In fact, the United States maintained that it was not even 
required to identify the sub -paragraph on which it relied.107 Eventually, the U nited States offered 
certain facts, mentioning subparagraph (iii), asserting that the se facts would sustain its defence, 
"even on the complainant 's understanding of Article XXI(b) as not self-judging ".108 In so doing, 
however, the United States has ignored critical facts that expose the rational disconnect between its 
narrative and the real world.  
120.  On the facts, the United States has been unable to demonstrate the existence of an 
emergency in international relations . While the United States attempted to characterize the 
global overcapacity in aluminum and steel as an emergency in international relations, the evidence 
relied upon by the United States reveals the opposite.109 Overcapacity in these industries is  a matter 
that has been on the policy agendas of governments and international organizations for decades, 
and on which countries have been working in a collaborative manner. This overcapacity cannot be 
characterized as a "danger or conflict " that "arises unexpectedly  and requires urgent  attention ".110 
 
103 Panel Report, Russia – Traffic in Transit , para. 7.131 ; Panel Report, Saudi Arabia – Protection of 
Intellectual Property Rights , para. 7.2 47; Norway’s second written submission, para. 117.  
104 Panel Report, Russia – Traffic in Transit , para. 7.139 ; Panel Report, Saudi Arabia – Protection of 
Intellectual Property Rights , para. 7.252; Norway’s second written submission, para. 117.  
105 See United States’ response to Panel Question 38, para. 144  
106 See Norway’s first opening statement, paras. 63 -80; and Norway’s response to Panel Question 36.  
107 See, United States’ comment on Norway’s response to Question 93.  
108 The United States’ opening state ment at the second substantive meeting, para. 53.  
109 See, Norway’s comment on the United States’ closing statement at the second substantive meeting, 
paras. 4 -5  (discussing Statement of the Chair of the OECD Ministerial Council Meeting 2018, at p. 5, 
https://www.oecd.org/mcm -2018/documents/Statement -French -Chair-OECD -MCM-2018.pdf  (Exhibit US -
246)).  
110 The United States’ response to Question 92, para. 45 . Emphasi s added.  See also , Norway’s opening 
statement at the second substantive meeting, para. 58.  WT/DS552/R/Add.1  
 
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  121.  On the facts, the United States has also been unable to demonstrate a genuine connection 
between its measures and the protection of its essential security interests . On this front, 
the United States asserts tha t its aluminium and steel industries are injured and would be unable to 
expand production to meet any sudden surge in demand for aluminum and steel in the event of a 
war or other emergency. This argument is premised on ignoring critical facts. Moreover, wh ile Article 
XXI applies to action taken "in time of " (i.e., during) an emergency, the US argument speculates  
about a potential  future  emergency rather than an existing one.111 
122.  To recall, the US unwrought aluminium industry consists of two segments: (i) an a iling primary 
aluminium segment, which had 1.8 million MT of production capacity in 2017, and which is declining 
("primary segment ");112 and (ii) a thriving secondary aluminium segment, which had 10 million MT 
of production capacity in 2015, and which is gr owing ( "secondary segment ").113 Similarly, the US 
semi-finished steel industry comprises (i) an ailing BOF segment, which accounts for about one third 
of the production,114 and (ii) a thriving electric arc furnace EAF segment, which accounts for two 
thirds o f US steel production and capacity.115  
123.  The United States alleges that global overcapacity puts at risk the US aluminium and steel 
industries ' ability to sustain capacity at levels sufficient to meet demand in the event of a "war or 
other emergency ". The Un ited States contends that, to avert this threat, its import restrictions are 
designed to safeguard a minimum of production capacity in the US aluminium and steel industries.  
124.  The perceived threat to the US industries ' capacity to meet demand in a "war or other 
emergency " arises only because the USDOC focuses exclusively on the ailing US primary aluminium 
segment and BOF steel segment, to the exclusion of the thriving US secondary aluminium segment 
and EAF steel segment . These thriving segments of the aluminium and steel industries have the 
capacity to produce many times the output which the United States aims to guarantee from the 
ailing segments.116 The United States ignores the fact that, in the event of a war or emerg ency in 
international relations, the output of the thriving segments will be available to meet its defence 
needs. Instead, the United States assumes a world in which its defence needs would need to be 
satisfied by the ailing segments alone.  
125.  The supposed th reat to US production capacity is, therefore, nothing more than an artefact of 
the USDOC 's decision to focus on the ailing minority segments of the US aluminium and steel 
industries, and to ignore the thriving segments.  
126.  Any objective and plausible assessment of the US production capacity available to meet 
demand in the event of a "war or other  emergency " must, of course, take into account the production 
capacity of the entire US aluminium and steel industries, including the thriving segments. These 
segments ' vast and growing capacity would be available to meet demand in the event of a "war or 
other emergency ". 
127.  When challenged on the deficiencies and inconsistencies in the factual basis it offers to justify 
its measures, the United States repeatedly falls back on the "deferential standard of review " under 
Article XXI(b).117 While Norway agrees tha t a Member enjoys a degree of deference under the 
chapeau , in particular as regards its policy choices , that deference does not extend to ignoring facts  
that are critical to the respondent 's purported justification of the measure.118 A Member cannot 
manufac ture a justification under Article XXI(b) by conveniently ignoring critical facts that contradict 
 
111 Norway’s comments on the United States’ closing statement at the second substantive meeting, 
para. 4.  
112 DOC Aluminium Report, (Exhibit NOR -2), Table 1.  
113 USITC Aluminum Report , (Exhibit NOR -49), Table 4.9.  The latest available data in the USITC 
report corresponds to the year 2015.  
114 Norway’s first written submission, Table 6 (compiled using data from “World Steel in Figures 2017” , 
World Steel Association,  (Exhibit NOR -59), Figure 16;   “World Steel in Figures 2018”, World Steel 
Association, (Exhibit NOR -60); American Metal Markets, DRI & Mini -mills, DRI & Mini -mills Conference, 
(Exhibit NOR -61) p. 9). 
115 Norway’s first written submission, paras. 277 -333. 
116 Norway’s first written submission, paras. 217 -274. 
117 The United States’ comments on Norway’s statements at the second substantive meeting, para. 15.  
118 Norway’s response to Question 95, paras. 5 -9. WT/DS552/R/Add.1  
 
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  the proffered justification. A Member must take the world as it exists, rather than imagine a world 
convenient to it.  
128.  If a Member were permitted to ignore cri tical but inconvenient facts, in order to manufacture 
a defence for itself, it would run contrary to the fundamental requirements of good faith. Norway 
recalls the Appellate Body 's remarks, in US – Shrimp , that one manifestation of the requirement of 
good faith "is the doctrine of abus de droit ".119 This doctrine "prohibits the abusive exercise of a 
state's rights " and requires that, whenever the exercise of a right "impinges " on the fulfilment of a 
treaty obligation, the right "must be exercised bona fide , that is to say, reasonably ".120 In the context 
of an affirmative defence, it is contrary to this principle for a Member to seek to justify a violation 
by ignoring critical facts that contradict the proffered justification.  
VIII.  CONCLUSION  
129.  In light of the a bove, the US measures at issue are inconsistent with provisions of the 
Safeguards Agreement  and the GATT 1994. Moreover, the US measures are not justified by Article 
XXI(b) of the GATT 1994.  
 
 
119 Appellate Body Report, US – Shrimp , para. 158.  
120 Appellate  Body Report, US – Shrimp , para. 158.  WT/DS552/R/Add.1  
 
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  ANNEX  B-2 
INTEGRATED EXECUTIVE SUMMARY  OF THE ARGUMENTS OF THE UNITED STATES OF AMERICA  
1. At issue in this dispute  is the sovereign right of a state to take action to protect its essential 
security in the manner it considers necessary. WTO Members did not relinquish this inherent right 
in joining the WTO. To the contrary, this right is reflected in Article  XXI(b) of t he GATT 1994, and 
WTO Members have not agreed to subject the exercise of this right to legal review.  
2. Section 232 of the Trade Expansion Act of 1962 (Section 232) allows the United States to 
adjust imports of an article based on a finding that such impor ts threaten to impair U.S. national 
security. On April 19 and 26, 2017, the United States initiated investigations under Section 232 into 
imports of steel and aluminum, respectively. In connection with these investigations, United States 
solicited written comments from interested parties and held public hearings. The United States 
summarized its findings from these investigations in written reports, and released these reports to 
the public. On March 8, 2018, the United States acted pursuant to Section 232 a nd imposed tariffs 
on certain steel and aluminum imports, effective beginning on March 23, 2018. The United States 
also established a process to permit product -specific exclusions from the Section 232 tariffs, based 
on, among other factors, the national se curity implications of those imports.  
A. The Text Of GATT 1994 Article XXI(b) In Its Context, And In The Light Of The 
Agreement's Object And Purpose, Establishes That The Exception Is Self -Judging  
3. The text of GATT  1994 Article XXI(b), in its context and  in the light of the agreement 's object 
and purpose, establishes that the exception  is self -judging.  As this text provides "[n]othing " in the 
GATT 1994 shall be construed to prevent a WTO Member from taking "any action " which "it considers 
necessary " for the protection of its essential security interests. This text establishes that (1) 
"nothing " in the GATT 1994 prevents a Member from taking any action needed to protect an essential 
security interest, and (2) the action necessary for the protection of  its essential security interests is 
that which the Member "considers necessary " for such protection.  
4. The self -judging  nature of GATT 1994 Article XXI(b) is demonstrated by that provision 's 
reference to actions that the Member "considers necessary " for the protection of its essential security 
interests. The ordinary meaning of "considers " is "[r]egard in a certain light or aspect; look upon as " 
or "think or take to be. " Under Article XXI(b), the relevant "light" or "aspect " in which to regard the 
action is whether that action is necessary for the protection of the acting Member 's essential security 
interests. Thus, reading the clause together, the ordinary meaning of the text indicates it is the 
Member ( "which it ") that must regard ( "consider[] ") the acti on as having the aspect of being 
necessary for the protection of that Member 's essential security interests.  The French and Spanish 
texts of Article XXI(b) confirm the self -judging nature of this provision. Specifically, use of the 
subjunctive in Spanish ( "estime ") and the future with an implied subjunctive mood in French 
("estimera ") support the view that the action taken reflects the beliefs of the WTO Member, rather 
than an assertion of objective fact that could be subject to debate.  
5. The ordinary mean ing of the terms in the phrase "its essential security interests, " also 
supports the self -judging nature of Article XXI. The word "interest " is defined as "[t]he relation of 
being involved or concerned as regards potential detriment or (esp.) advantage. " The term "security " 
refers to "[t]he condition of being protected from or not exposed to danger. " The definitions of 
"essential " include "[t]hat is such in the absolute or highest sense " and "[a]ffecting  the essence of 
anything; significant, important. "  
6. And it is "its" essential security interests – the Member 's in question – that the action is taken 
for the protection of. Therefore, it is the judgment of the Member that is relevant. Each WTO Member 
must determine whether certain action involves "its interests, " that is, potential detriments or 
advantages from the perspective of that Member. Each WTO Member likewise must determine 
whether a situation implicates its "security " interests (not being expos ed to danger), and whether 
the interests at stake are "essential, " that is, significant or important, in the absolute or highest 
sense. By their very nature, these questions are political and can only be answered by the Member 
in question, based on its spe cific and unique circumstances, and its own perception of those WT/DS552/R/Add.1  
 
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  circumstances. No WTO Member or WTO panel can substitute its views for those of a Member on 
such matters.  
7. The text of subparagraphs  (i) to (iii) of Article XXI(b) also supports the self -judging nature of 
this provision. The first element of this text that is notable is the lack of any conjunction to separate 
the three subparagraphs. The subparagraphs a re not separated by the coordinating conjunction "or", 
to demonstrate alternatives, or the conjunction "and", to suggest cumulative situations. Accordingly, 
each subparagraph must be considered for its relation to the chapeau of Article XXI(b).  
8. Subparagraphs (i) and (ii) of Article XXI(b) both begin with the phrase "relating to " and directly 
follow the phrase "essential security interests " in the chapeau of paragraph (b). The most natural 
reading of this construction is that subparagraphs (i) and (ii) modify the phrase "essential security 
interests " and thus illustrate the types of "essential security interests " that Members considered 
could lead to action under Article XXI(b).  
9. Subparagraphs (i) and (ii) do not limit a Member 's essential security interests exclusively to 
those interests. First, the chapeau of Article XXI(b) (as noted) reserv es to the Member the judgment 
of what "its interests " are, including whether they are relating to one of the enumerated interests. 
Second, subparagraph (iii) reflects no explication (and therefore cannot be understood to reflect a 
limitation) on a Member 's essential security interests. Rather, as with subparagraphs (i) and (ii), the 
essential security interests are those determined by the Member taking the action.  
10. Subparagraph (iii) begins with temporal language: "taken in time of  war or other emergency  
in international relations. " The phrase "taken in time of " echoes the reference to "taking any action " 
in the chapeau of Article XXI (b), and it is actions that are "taken ", not interests. Thus, the temporal 
circumstance in subparagraph (iii) modifies the word "action, " rather than the phrase "essential 
security interests. " Accordingly, Article XXI(b)(iii) reflects a Member 's right to take action it considers 
necessary for t he protection of its essential security interests when  that action is taken in time of 
war or other emergency in international relations. Nor does the text of Article XXI(b)(iii) require that 
the emergency in international relations or war directly involve  the acting Member, reflecting again 
that the action taken for the protection of its essential security interests is that which the Member 
judges necessary.  
11. Subparagraphs (i) to (iii) of Article XXI(b) thus reflect that Members wished to set out certai n 
types of "essential security interests " and a temporal circumstance that Members considered could 
lead to action under Article XXI(b). A Member taking action pursuant to Article XXI(b) would consider 
its action to be necessary for the protection of the i nterests identified in subparagraphs (i) and (ii) 
or to be taken in time of war or other emergency in international relations. In this way, the 
subparagraphs guide a Member 's exercise of its rights under this provision while reserving to the 
Member the jud gment whether particular action is necessary to protect its essential security 
interests.  
12. The context of Article XXI(b) also supports this understanding. First, the phrase "which it 
considers necessary " is present in Article XXI(a) and XXI(b), but not in Article  XXI(c). The selective 
use of this phrase highlights that, under Article XXI(a) and XXI(b), it is the judgment of the Member 
that controls. The Panel should recognize and give meaning to such deliberate use of the phrase 
"which it considers " in Article XXI(b), and not reduce these words to inutility.  
13. Second , the context provided by Article XX supports the understanding that Article  XXI(b) is 
self-judging. Specifically, Article XX sets out "general exceptions, " and a number of subparagraphs 
of Article XX relate to whether an action is "necessary " for some listed objective. For example, Article 
XX(a), (b), and (d), respectively, provide exceptions for certain measures "necessary  to protect 
public morals, " "necessary  to protect human, animal or pl ant life or health, " and "necessary  to secure 
compliance with laws or regulations which are not inconsistent with the provisions of this Agreement " 
(emphases added).  
14. Unlike Article XXI(b), however, none of the Article XX subparagraphs use the phrase "which it 
considers " to introduce the word "necessary. " Furthermore, Article XX includes a chapeau which 
subjects a measure qualifying as "necessary " to a further requirement of, essentially, non -
discrimination. Notably, such a qualification, which requires review of a Member 's action, is absent 
from Article XXI.  WT/DS552/R/Add.1  
 
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  15. Third, a number of provisions of the GATT 1994 and other WTO agreements refer to action 
that a Member "considers " appropriate or necessary, and —as in Article XXI(b) —this language signals 
that a particular judgment resides with that Member. For example, under Ar ticle 18.7 of the 
Agreement on Agriculture, "[a]ny Member " may bring to the attention of the Committee on 
Agriculture "any measure which it considers ought to have been notified by another Member. " 
Similarly, Article III(5) of the General Agreement on Trad e in Services (GATS) permits "[a]ny 
Member " to notify the Council for Trade in Services of any measure taken by another Member which 
"it considers affects " the operation of GATS.  
16. In other provisions of the GATT 1994 or other WTO agreements, however, c ertain judgments 
are left for determination by a panel, the Appellate Body, or a WTO committee. Under DSU Art. 12.9, 
for example, "[w]hen the panel considers " that it cannot issue its report within a certain period of 
time, the panel must provide certain i nformation to the DSB. Under Article 4(1) of the Agreement 
on Rules of Origin, the Committee on Rules of Origin may request work from the Technical Committee 
on Rules of Origin "as it considers appropriate " for the furtherance of the objectives of that 
agreement.  
17. Fourth , by way of contrast, and further context, in at least two WTO provisions the judgment 
of a Member is expressly subject to review through dispute settlement. Specifically, DSU Article 26.1 
permits the institution of non -violation complain ts, subject to special requirements, including that 
the panel or Appellate Body agree with the judgment of the complaining party. As DSU Article 26.1 
states, a non -violation complaint may be instituted, "[w]here and to the extent that such party 
considers and a panel or the Appellate Body determines " that a particular measure does not conflict 
with a WTO agreement, among other requirements. Thus, in this provision, Members explicitly 
agreed that it is not sufficient that "[a] party considers " a non -violatio n situation to exist, and 
accordingly, a non -violation complaint is subject to the additional check that "a panel or the Appellate 
Body determines that " a non -violation situation is present. A similar limitation —that a "party 
considers and a panel determin es that "—was agreed in DSU Article 26.2 for complaints of the kind 
described in GATT 1994 Article XXIII:1(c).  
18. The context provided by DSU  Articles 26.1 and 26.2 is highly instructive. No such review of a 
Member 's judgment is set out in Article XXI(b), which permits a Member to take action "which it [a 
Member] considers necessary for the protection of its essential security interests. " Accor dingly, the 
context of Article XXI(b) demonstrates that Members did not agree to subject a Member 's essential 
security judgments to review by a WTO panel.  
19. The object and purpose of the GATT 1994 also establishes that Article XXI(b) is self -judging. 
The object and purpose of the GATT 1994 is set out in the agreement 's Preamble. That Preamble 
provides, among other things, that the GATT 1994 set forth "reciprocal and mutually advantageous 
arrangements directed to the substantial reduction of tariffs and ot her barriers to trade. " Particularly 
with these references to arrangements that are "mutually advantageous " and tariff reductions that 
are "substantial " (rather than complete), the contracting parties (now Members) acknowledged that 
the GATT contained both obligations and exceptions, including the essential security exceptions at 
Article XXI. The self -judging nature of Article XXI is further established b y a subsequent agreement 
between the parties regarding  the interpretation of the treaty or the application of its provisions in 
the context of the United States Export Measures dispute between the United States and 
Czechoslovakia.  
B. Supplementary Means o f Interpretation, Including Negotiating History, Confirm The 
Self-Judging Nature of GATT 1994 Article XXI(b)  
20. While not necessary in this dispute, supplementary means of interpretation, including 
negotiating history, confirms that GATT 1994 Article  XXI(b) is self -judging. The drafting history of 
GATT 1994 XXI(b) dates back to negotiations to establish the International Trade Organization of 
the United Nations (ITO). In 1946, the United States proposed a draft charter for the ITO, which 
included the follo wing two exceptions provisions:  
Article 32 (General Exceptions  to Chapter  IV):  
Nothing in Chapter IV of this Charter shall be construed to prevent the 
adoption or enforcement by any Member of measures  WT/DS552/R/Add.1  
 
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  . . . .  
(e) in time of war or other emergency in inte rnational relations, relating to the 
protection of the essential security interests of a Member.  
Article 49.2 (Exceptions to Provisions Relating to Intergovernmental Commodity 
Agreements):  
None of the foregoing provisions of Chapter VI is to be interprete d as 
applying to agreements relating to fissionable materials; to the traffic in 
arms, ammunition and implements of war and to such traffic in other goods 
and materials as is carried on for the purpose of supplying a military 
establishment; or, in time of war or other emergency in international 
relations, to the protection of the essential security interests of a Member.  
21. The United States asserted at the time that Article 32(e) "afforded complete opportunity for 
the adoption of all measures regarded as necessary for the protection of national interests " in a time 
of war or a national emergency. As originally drafted, however, neither exceptions provision was 
explicitly self -judging. These provisions lacked the key phrase that appears in the current text of 
GATT 1994 Article XXI(b) regarding action by a Member that "it considers necessary for " the 
protection of its essential security interests. In addition, the essential security exception set out in 
Article 32 of the ITO draft charter was one of twelve ex ceptions, several of which later formed the 
basis for the general exceptions at GATT 1994 Article XX.  
22. In March 1947, the same exceptions text was proposed as both GATT Article XX and Article 
37 the ITO draft charter, in Chapter V, which related to "[g]eneral commercial policy. " The chapeau 
of this proposed text and a number of the subparagraphs are identical to what would become GATT 
1994 Article XX. With its proviso, the chapeau contemplated panel review so that the exceptions 
would not be applied to discriminate unfairly. The subparagraphs corresponding to essential security 
were included in this proposed text, together with other exceptions, and thus were subject to the 
proviso in the chapeau, like these other exceptions. This structure suggests that , at that time, not 
all drafters may have viewed the essential security exception in subparagraph (e) as self -judging.  
23. In May 1947, the United States proposed removing, inter alia , subparagraph (e) from the ITO 
draft charter exceptions provision quoted  above. In the U.S. proposal, item (e) would be included in 
a new article, to be inserted at an "appropriate " place at the end of the ITO draft charter, so that 
these exceptions would apply to the whole charter. The United States also proposed that the new  
article would begin by stating "[n]othing in this Charter shall be construed to prevent the adoption 
or enforcement by any Member of measures, " including those relating to the protection of essential 
security interests.  
24. Thereafter, the United States p roposed the addition of a new chapter, entitled "Miscellaneous " 
at the end of the ITO draft charter, and that the proposed exceptions to the charter as a whole be 
included in this new chapter. The United States also suggested additional text to this except ions 
provision, to make the self -judging nature of these exceptions explicit. Under this U.S. proposal, the 
draft exceptions provision stated:  
Nothing in this Charter shall be construed to require any Member to furnish any 
information the disclosure of wh ich it considers contrary  to its essential security 
interests, or to prevent any Member from taking any action which it may consider to be 
necessary  to such interests:  
a. Relating to fissionable materials or their source materials;  
b. Relating to the traffic i n arms, ammunition and implements of war and to such 
traffic in other goods and materials as is carried on for the purpose of supplying 
a military establishment;  
c. In time of war or other emergency in international relations, relating to the 
protection of i ts essential security interests  . . . .  WT/DS552/R/Add.1  
 
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  25. The text now referenced what a Member considered to be necessary, explicitly indicating that 
this provision could be invoked based on a Member 's own judgment. Moreover, this reference was 
included only for natio nal security issues, including actions which a Member may consider necessary 
for the protection of its essential security interests. The drafting history thus shows that a deliberate 
textual distinction was drawn between the self -judging nature of exceptio ns pertaining to essential 
security and exceptions related to other interests that, unlike the security -based exceptions 
referenced above, were retained as part of the "[g]eneral commercial policy " chapter of the ITO 
draft charter.  
26. Regarding the except ion's scope, at a July 1947 meeting of the ITO negotiating committee, 
the delegate from The Netherlands requested clarification on the meaning of a Member 's "essential 
security interests, " and suggested that this reference could represent "a very big looph ole" in the 
ITO charter. The U.S. delegate responded that the exception would not "permit anything under the 
sun," but suggested that there must be some latitude for security measures. The U.S. delegate 
further observed that in situations such as times of war, "no one would question the need of a 
Member, or the right of a Member, to take action relating to its securit y interests and to determine 
for itself —which I think we cannot deny —what its security interests are. " 
27. In those discussions the Chairman made a statement "in defence of the text, " and recalled 
the context of the essential security exception as part of the ITO charter. As the Chairman observed, 
when the ITO was in operation "the atmosphere inside the ITO will be the only efficient guarantee 
against abuses of the kind " raised by The Netherlands delegate. That is, the parties would serve to 
police each oth er's use of the essential security through a culture of self -restraint. During the same 
July 1947 meeting, the Chairman asked whether the drafters agreed that actions taken pursuant to 
the essential security exception "should not provide for any possibilit y of redress. " In response, the 
U.S. delegate observed that such actions "could not be challenged in the sense that it could not be 
claimed that the Member was violating the Charter. " The United States acknowledged, however, that 
a member affected by such actions "would have the right to seek redress of some kind " under Article 
35(2) of the ITO charter.  
28. At that time, Article 35(2) provided for the possibility of consultations concerning the 
application of any measure, "whether or not it conflicts with the terms of this Charter, " which had 
"the effect of nullifying or impairing any object " of the ITO chart er. If the parties were unable to 
resolve the matter, it could be referred to the ITO, which in turn could make recommendations, 
including the suspension of obligations or concessions.  
29. In response to the explanation from the U.S. delegate, including t he right to seek redress for 
non-violation under Article 35(2), the Australian delegate lifted a reservation on the essential 
security exception at this July 1947 meeting. The delegate from Australia stated that, as the 
exception was "so wide in its covera ge"—particularly the "which it may consider to be necessary " 
language —Australia 's agreement was done with the assurance that "a Member 's rights under Article 
35(2) will not be impinged upon. "  
30. This exchange demonstrates that the drafters of the text th at became GATT 1994 Article 
XXI(b) understood that essential security measures could not be challenged as violating obligations 
in the underlying agreement. Nevertheless, an ITO member affected by essential security measures 
could claim that its expected b enefits under the charter had been nullified or impaired, as set forth 
at Article 35(2) of the ITO Charter draft current in July 1947. As applied to the WTO context, this 
discussion indicates essential security measures cannot be found by a panel to breach  the GATT 
1994 or other WTO agreements, although Members may request that a panel review whether its 
benefits have been nullified or impaired by the essential security measure and, if so, to assess the 
level of that nullification or impairment.  
31. This un derstanding of the relationship between essential security measures and nullification 
or impairment procedures is further confirmed by discussions of the ITO Charter that occurred in 
early 1948. For example, after "extensive discussions, " a Working Party o f representatives from 
Australia, India, Mexico, and the United States decided to retain the draft charter 's non -violation 
nullification or impairment provision. The Working Party noted that the provision "would apply to the 
situation of action taken by a Member " to protect its essential security interests.  The explanation of 
the Working Party is worth reading in full:  WT/DS552/R/Add.1  
 
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  Such action, for example, in the interest of national security in time of war or other 
international emergency would be entirely consistent  with the Charter , but might 
nevertheless result in the nullification or impairment of benefits accruing to other 
Members. Such other Members should, under those circumstances, have the right to 
bring the matter before the Organization, not on the ground t hat the measure taken 
was inconsistent with the Charter, but on the ground that the measure so taken 
effectively nullified benefits accruing to the complaining Member.  
32. Members of a sub -committee on the ITO Charter 's dispute settlement chapter expressed  
similar views. Thereafter, the essential security exception in the ITO draft charter was revised based 
on suggestions from the United Kingdom. The UK representative opined that with these revisions, 
the Charter "would neither permit, nor condemn, nor pass  any judgment whatever on, unilateral 
economic sanctions. " After the UK 's revisions were accepted, a representative of India —when 
discussing nullification or impairment claims as a remedy for essential security measures —
"expressed some doubt " about whether "the bona fides of an action allegedly coming within [the 
essential security exception] could be questioned. " In early 1948, negotiators also declined to adopt 
a UK proposal that would have amended the essential security provision to state t hat nullification or 
impairment procedures were the appropriate recourse for members affected by essential security 
measures by other members. As the United States noted at the time, such a reference to nullification 
or impairment in the essential security  provision was "unnecessary " in light of the existing text.  
33. In its analysis of the negotiating history of Article XXI(b), the Russia – Traffic in Transit  panel 
referred at length to internal documents of the U.S. delegation to the GATT negotiations. Sp ecifically, 
in addition to considering published documents associated with the negotiating history of Article 
XXI(b), that panel considered a study that discusses internal documents of the U.S. delegation. In 
particular, the panel report recounts at some l ength this study 's discussion of an internal U.S. 
delegation meeting of July 4, 1947. The panel used these documents as negotiating history to 
confirmed the panel 's interpretation that it had the authority to review a Member 's invocation of its 
essential s ecurity interests . The Panel in Russia – Traffic in Transit erred in relying on such material 
because it is not "negotiating history " within the meaning of the Vienna Convention. It is concerning 
that the panel would commit such an elementary error in inte rpretive approach. Even putting aside 
this interpretative error, the panel also misunderstood and mischaracterized the U.S. discussions to 
which it referred. These internal U.S. deliberations —when considered as a whole and in context —
further confirm that A rticle XXI(b) is self -judging.  
34. The self -judging nature of Article XXI(b) is also supported by views repeatedly expressed by 
GATT contracting parties (now Members) in connection with prior invocations of their essential 
security interests.  
C. The Russi a – Traffic In Transit Panel  Erred In Deciding It Had Authority To Review A 
Responding Party's Invocation Of Article XXI.  
35. The panel in Russia – Traffic in Transit  erred when it decided that it had authority to review 
multiple aspects of a responding pa rty's invocation of Article XXI. That panel 's interpretation of 
Article XXI is not consistent with the customary rules of interpretation set forth in the Vienna 
Convention. In addition to being inconsistent with the ordinary meaning of the terms of Article  XXI, 
the panel failed to interpret that provision as a whole. In fact, the panel appears to have reached its 
conclusion regarding the reviewability of Article XXI a mere four paragraphs after beginning its 
analysis – based not on "the mere meaning of the words and the grammatical construction of the 
provision, " but on what it termed the "logical structure of the provision. "  
36. Furthermore, in its examination of the negotiating history of the treaty, the Russia – Traffic in 
Transit  panel misconstrued cert ain statements by negotiating parties and relied on materials not 
properly considered part of the negotiating history. These errors reveal the panel 's analysis as deeply 
flawed and suggest a results -driven approach not in line with the responsibility besto wed on the 
panelists by WTO Members through the DSU.  
_______________  
 
 WT/DS552/R/Add.1  
 
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  ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
 
 Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of China  47 
Annex  C-2 Integrated executive summary of the arguments of the European Union  50 
Annex  C-3 Integrated executive summary of the arguments of Hong Kong, China  56 
Annex  C-4 Integrated executiv e summary of the arguments of India  59 
Annex  C-5 Integrated executive summary of the arguments of Japan  62 
Annex  C-6 Integrated executive summary of the arguments of New Zealand  65 
Annex  C-7 Integrated executive summary of the arguments  of the Russian Federation  68 
Annex  C-8 Integrated executive summary of the arguments of Singapore  74 
Annex  C-9 Integrated executive summary of the arguments of Switzerland  79 
Annex  C-10 Integrated executive summary of the arguments of Türkiye  84 
Annex  C-11 Integrated executive summary of the arguments  of Ukraine  89 WT/DS552/R/Add.1  
 
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  ANNEX  C-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA  
1. This executive summary integrates the Oral Statement and Responses to the Panel's 
Questions by China  in these disputes . 
I. LEGAL CHARACTERIZATION OF MEASURES AS SAFEGUARD MEASURE  
2. China believes the Appellate Body in Indonesia – Iron or Steel Products  has provided useful 
analysis as to what meaure constitutes Safeguard measure.  
3. The Appellate Body identified two constituent elements of a safeguard measure, i.e. (1) the 
suspension, in whole or i n part, of a GATT obligation or the withdrawal or modification of a GATT 
concession; and (2) that the suspension, withdrawal, or modification in question is designed to 
prevent or remedy serious injury to the Member's domestic industry caused or threatened  by 
increased imports of the subject product.  
4. In China's view, the purpose of a safeguard measure is to prevent or remedy serious injury to 
a domestic industry caused or threatened by increased imports, through the mechanism of 
suspending, withdrawing,  or modifying a GATT obligation or concession. That is what a safeguard 
measure "is" , and a measure which meets the two constituent elements would be a safeguard 
measure . The remaining elements provided under Article XIX(1)(a) are legal requirements for th e 
imposition of a safeguard measure rather than constituent elements of such a measure.  
5. Furthermore, China believes that the characterization of a measure as safeguard measure is 
not a question of subjective intent, but independant and objective assess ment of the features of the 
measure. In making this "independent and objective assessment", a panel must "identify all the 
aspects of the measure that may have a bearing on its legal characterization, recognize which of 
those aspects are the most central t o that measure, and, thereby, properly determine the disciplines 
to which the measure is subject."   The assessment of whether a measure is a safeguard measure is 
therefore an objective assessment based on the relevant characteristics of the measure, not th e 
importing Member's subjective intent.  
6. This conclusion is unaffected by the statement in Article  XIX:1(a) that a Member "shall be 
free" to suspend an obligation in whole or in part or to modify or withdraw a concession, provided 
that the conditions for  the imposition of a safeguard measure are satisfied. The phrase "shall be 
free" does nothing more than confer the right to impose a safeguard measure when the conditions 
for the imposition of such a measure are satisfied.  
II. ISSUES CONERNING INTERPRETATI ON OF ARTICLE XXI(b)  
i. Standard of Review  
7. China holds the view that, nothing in the DSU  or elsewhere in the covered agreements allows 
a panel to perform its role any differently in disputes in which the responding Member invokes 
Article  XXI(b) of the GATT 1994.   
8. Article  XXI(b) is an affirmative defense which, like other affirmative defen ses, must be 
interpreted and applied to the facts of the case to determine whether it provides justification for any 
identified inconsistency.  There are no special or additional rules or procedures that apply to a dispute 
in which the responding Member ha s invoked Article  XXI(b), and the panel's function to undertake 
"an objective assessment of the facts of the case and the applicability of and conformity with the 
relevant covered agreements" is the same as in any other dispute.  
9. Furthermore, the subpara graphs of Article XXI(b) represent an enumerated and exhaustive 
list of the circumstances under which a Member may seek to justify a particular type of action that 
is otherwise inconsistent with the GATT 1994. For the subparagraphs to be exhaustive and hav e WT/DS552/R/Add.1  
 
- 48 - 
 
  effective meaning, they must be objectively reviewable. Otherwise, Article  XXI(b) would have the 
same meaning and effect as if the subparagraphs did not exist, and the circumstances described in 
the three subparagraphs would no longer constrain the circu mstances in which a Member could 
invoke Article  XXI(b).  
ii. Interpretation of Article XXI(b)  
10. Within Article XXI (b), the phrase "which it considers" qualifies the phrase "necessary for the 
protection of its essential security interests".  Thus, what a Member is permitted to determine, in its 
own judgment, is whether a particular action of a type set forth in subparagraphs (i) through (iii) is 
"necessary for the protection of its essential security interests".  For an action in question to be 
justified u nder Article  XXI(b), it must objectively fall within one of the three enumerated 
subparagraphs.  Provided that the action in question is objectively within the scope of one (or more) 
of the enumerated subparagraphs, it is up to the invoking Member to deter mine whether the action 
in question is necessary for the protection of its essential security interests. The United States stands 
alone in asserting that the entirety of Article  XXI(b), including its subparagraphs, is self -judging. 
This is clearly differen t from what was perceived from other parties and third parties.  
11. The subjective element of the chapeau  encompasses both the "necessity" of the action and 
the determination of the invoking Member's "essential security interests". The chapeau  refers not to 
"necessity" in the abstract, but to the necessity of a particular action " for the protection of its 
essential security interests". The elements of this determination are not divisible – a Member's 
determination of whether a particular action is "necessary" includes the determination of whether 
that action is "for the protection of" what the Member considers  to be "its essential security 
interests".  
12. The phrase "any action which it considers necessary for the protection of its essential security 
interests" has two operative halves.  The phrase "any action" is qualified by the three subparagraphs.  
Thus, an y action for which justification is sought under Article  XXI(b) must be one " relating  to 
fissionable materials", " relating  to the traffic in arms …", or one " taken  in time of war or other 
emergency in international relations".  Provided that the action in question is of one or more of those 
types, the Member may determine, in its own judgment, whether that action is "necessary for the 
protection of its essential security interests".  
13. China does not consider that the present disputes present a circumstan ce in which there is a 
potential conflict among the Spanish, French and English texts following the application of Articles 
31 and 32 of the Vienna Convention. Rather, the minor differences in terminology, structure, and 
punctuation discussed in response t o the preceding questions all point to the same conclusion: that 
the individual subparagraphs of Article  XXI(b) are objectively reviewable in dispute settlement and 
do not form part of the self -judging element of that provision.  
14. The individual subparag raphs of Article  XXI(b) describe, exhaustively, the specific 
circumstances in which a Member may seek to justify an inconsistent measure under this provision.  
They serve the same function as the subparagraphs of Article  XX, i.e. to delimit the scope of 
application of the exception.  
15. The exhaustive nature of the three subparagraphs means there are no other circumstances in 
which a Member may invoke Article  XXI(b) to justify a GATT -inconsistent measure. If those 
subparagraphs were considered "self -judging ", there would be no constraint upon the circumstances 
in which a Member could justify a GATT -inconsistent action.  Such an interpretation would defeat 
and run contrary to the exhaustive nature of the three subparagraphs .  
16. In addition, i f the self -judging element of Article XXI(b) were interpreted to encompass the 
three subparagraphs of this provision, those subparagraphs would be rendered inutile in violation of 
the principle of effective interpretation.  Had this been the intention of the drafters, th e three 
subparagraphs could have been omitted entirely and Article XXI(b) would have the same meaning 
and effect.   
17. It is well established that an object and purpose of the GATT 1994 is to "promote the security 
and predictability of the reciprocal and mutually advantageous arrangements and the substantial 
reduction of tariffs and other barriers to trade".   An interpretation of Article  XXI(b) under which the WT/DS552/R/Add.1  
 
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  applicability of its subparagraphs is to be determined by the invoking Member in its own judgment  
would be incompatible with the object and purpose of the GATT 1994, because a Member could, at 
any time and for any reason, excuse itself from compliance with its WTO obligations merely by 
invoking Article  XXI(b).   A consideration of the object and purpos e of the GATT 1994 plainly supports 
the conclusion that the subparagraphs of Article  XXI(b) are objectively reviewable by a panel.  
Otherwise, the security and predictability of the multilateral trading system  would be obviously 
undermine d.   
18. Whatever the scope of the self -judging element in Article  XXI(b), a Member's invocation of 
Article  XXI(b) is, in all events, subject to the requirement of Article  26 of the Vienna Convention that 
a treaty must be performed in good faith.  
19. The principle  of good faith applies to the performance of any treaty obligation, including 
elements of a treaty that are committed to a party's discretion. It does not deprive a Member 
invoking Article  XXI(b) of its right to determine its essential security interests i n its own judgement 
and take measures it considers necessary for the protection of those interests. However, as a general 
matter, the pervasive nature of the obligation to act in good faith requires that even in relation to 
those elements of Article  XXI(b)  that are committed to a Member's discretion by virtue of the phrase 
"which it considers", the invoking Member must nevertheless invoke Article XXI(b) in good faith.  
This may require some explanation by the invoking Member of why it considered a particula r element 
of Article  XXI(b) to apply.  
III. RELATIONSHIP BETWEEN ARTICLES XXI AND XIX OF THE GATT 1994 AND 
THE AGREEMENT ON SAFEGUARDS  
20. In China's view, the absence of an explicit cross -reference in the Agreement on Safeguards to 
Article  XXI of the GATT  1994 is not determinative of whether Article  XXI is available to justify 
measures that are inconsistent with the Agreement on Safeguards.  It is, however, a pertinent 
interpretive consideration, and one that weighs against the conclusion that Article  XXI is available 
in this circumstance.  
21. The Appellate Body has stated that the relationship between provisions contained in two 
different agreements, including the applicability of a GATT exception to another agreement, "must 
be ascertained through scrutiny  of the provisions concerned, read in the light of their context and 
object and purpose, with due account being taken of the overall architecture of the WTO system as 
a single package of rights and obligations, and any specific provisions that govern or sh ed light on 
the relationship between the provisions of different instruments".  Within the framework articulated 
by the Appellate Body, the presence or absence of an express textual cross -reference is not 
dispositive. The only circumstance in which a GATT exception was found to be available 
notwithstanding the absence of an explicit textual cross -reference is where the provision at issue 
strongly implied the availability of the GATT exceptions.  
22. The fact that the Agreement on Safeguards is an elaboration  upon Article  XIX of the 
GATT  1994 does not mean that Article  XXI applies to the Agreement on Safeguards. This is true in 
respect of both those provisions of the Agreement on Safeguards that could be said to replicate 
provisions of Article  XIX and those pr ovisions of the Agreement on Safeguards that have no 
counterpart in Article  XIX.  
23. With has been said, China believes that nothing in the Agreement on Safeguards provides any 
indication that the exceptions provisions of the GATT 1994, including Article  XXI, are available as 
potential justifications for measures that are inconsistent with that agreement.  
 WT/DS552/R/Add.1  
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
1. INTRODUCTION  
1. In this dispute, the complainants have argued that the steel and aluminium measures are 
safeguards, inconsistent with the Agreement on Safeguards; that they are also inconsistent 
with the GATT 1994; and that they are not justified by Article XXI of the GATT 1994, even 
if the U S chose to make out an Article XXI defence, and even if that provision applied.  
2. In response, the US has said one thing only: Article XXI is "self-judging ". In other words, as 
soon as the US "invokes " any part of Article XXI or Article XXI as a whole, the P anel is 
allowed to do no more than record that the "invocation " took place.   
3. That assertion is baseless as a matter of law. It is also unacceptable from a systemic point 
of view. It cannot be that Members are able to escape their WTO obligations through mere 
unilateral "invocations ". Going down that road would undermine everything that the dispute 
settlement system has achieved and reduce WTO law to inutility.  
4. It is important to note the following: the US has not taken issue with a single fact or piece 
of evidence put forward by the complainants. It has not even tried to rebut the claim that 
the steel and aluminium measures are safeguards; any of the claims under the Agreement 
on Safeguards or the GATT 1994. Strikingly, for all its reliance on Article XXI, the US has 
not even raised an Article XXI defence. It has not said which "action" supposedly falls within 
Article  XXI(b), whether or why it "considers it necessary ", what it is "for", which "security 
interest " is at issue, whether and why it is "essential " , which of the three subparagraphs 
(if any) is at issue or why.  
5. For these r easons and others, the EU considers that it should not be difficult for the Panel 
to find that the measures at issue are WTO -inconsistent.  
2. THE MEASURES AT ISSUE FALL WITHIN THE SCOPE OF THE AGREEMENT ON SAFEGUARDS , AND ARE 
INCONSISTENT WITH CERTAIN PROV ISIONS OF THAT AGREEMENT  
2.1. WHETHER THE AGREEMENT ON SAFEGUARDS APPLIES TO A MEASURE IS AN OBJECTIVE QUESTION TO 
BE DECIDED BY THE PANEL 
1. The EU recalls that, according to settled case -law, and as recently confirmed by the 
Appellate Body in the specific c ontext of the Agreement on Safeguards, whether or not a 
measure is subject to the disciplines of the Agreement on Safeguards is an objective 
question. Contrary to what the US asserts in the Additional Duties cases, it is not a question 
to be decided unilat erally by the Member imposing the safeguard measure.  
2. A reason why the characterisation of a measure as a safeguard must be an objective 
question is that Article XIX and the rules of the Agreement on Safeguards include important 
and fundamental rights of ot her WTO Members, notably the right to suspend equivalent 
GATT obligations. It cannot be that a WTO Member can deprive other WTO Members of these 
rights simply by choosing not to notify its measure as a safeguard measure or by not 
"invoking" Article XIX.  T he fulfilment of the requirements in Article XIX:2 of the GATT 1994 
and Article 12 of the Agreement on Safeguards is a question of consistency, not of the 
applicability of the Agreement on Safeguards.  
3. In making that objective assessment of whether a measur e is a safeguard, the Panel must 
engage in a case -specific assessment, having regard to all of the relevant facts. In this 
respect, and again contrary to what the US asserts in the Additional Duties case, the 
domestic procedures pursuant to which a measure  has been adopted are not determinative, 
and neither are the WTO procedures that have been followed, or not followed, by the 
adopting Member.  WT/DS552/R/Add.1  
 
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  4. Indeed, the Appellate Body has previously held that the characterisation of a measure under 
a Member's municipal l aw is not dispositive of the question of whether or not that measure 
is governed by the provisions of a particular agreement.  
5. What are, then, the true "constituent features " of a safeguard?  
6. In the context of Article 1 of the Agreement on Safeguards, in order to be a safeguard 
measure, a measure must have two constituent features. First, it must suspend, in whole 
or in part, a GATT obligation or withdraw or modify a GATT concession. Second, th e 
suspension, withdrawal, or modification in question must be designed to prevent or remedy 
serious injury to the Member's domestic industry caused or threatened by increased imports 
of the relevant products. The constituent features of a safeguard measure  are distinct from 
and not to be conflated with the conditions that must be met in order for the right to adopt, 
apply and maintain a safeguard measure to be exercised.  
7. If the measures have "a specific objective" of preventing or remedying serious injury to the 
Member's domestic industry, they are subject to the disciplines of the Agreement on 
Safeguards.  
8. In conducting its assessment, the Panel must have regard to the measure "as a whole". The 
US measures, with respect to steel and aluminium products, sho uld be seen as the tariff and 
non-tariff treatment provided for, without qualification (that is, with respect to all WTO 
Members, as a whole).  
2.2. THE AGREEMENT ON SAFEGUARDS APPLIES TO THE MEASURES AT ISSUE  
9. The only reasonable outcome of an objective as sessment is to conclude that the US 
measures are safeguards.  
10. The facts speak for themselves: even on their face, the central objective, and at the very 
least "a specific objective " of the measures is protecting domestic steel and aluminium 
industry writ l arge from competition with imports, regardless of any alleged national security 
implications.  
11. Applying the legal standard formulated by the Appellate Body, it is first of all clear that the 
US measures suspend at least one GATT obligation, in whole or in part, or withdraw or 
modify at least one GATT concession.  
12. Indeed, prior to the Section 232 measures the US customs duties on the steel and aluminium 
products at issue were bound, as well as applied at the level of 0%. However, the US 
measures provide for a  customs duty rate of 25% ad valorem  for the relevant steel products 
and 10% ad valorem  for the relevant aluminium products.  
13. Thus, the US measures suspend at least one GATT obligation or withdraw or modify at least 
one GATT concession, per tariff line in question, in a manner that is inconsistent with 
Article  II:1(b) of the GATT 1994.  
14. According to the Presidential Proclamations, the US measures are designed to prevent or 
remedy a decline in the respective domestic industries caused by imports, and to prov ide a 
"relief" to those industries from competition with imports.  
15. Indeed, the Steel Report, the Aluminium Report and the Proclamations point to several 
elements relevant to an injury analysis. The steel and aluminium import adjustments 
explicitly purport to assess a number of injury factors that are typically associated with a 
serious injury finding under Article 4.2(a) of the Agreement on Safeguards (the rate and 
amount of the increase in imports, the share of the domestic market taken by increased 
imports (import penetration), changes in the level of domestic sales, production and 
productivity, capacity utilization, profits and losses, and employment).  
16. Thus, consistent with the legal standard identified by the Appellate Body in Indonesi a – Iron 
or Steel Products , the US measures have a specific objective of preventing or remedying WT/DS552/R/Add.1  
 
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  serious injury to the US domestic steel and aluminium industries caused or threatened by 
increased imports of the relevant products.  
17. An analysis of the "design , structure, and expected operation " of the steel and aluminium 
measures supports the conclusion that they are safeguard measures. The measures are 
designed , and expected to operate , such as to achieve a certain domestic capacity utilisation 
for all domest ic producers of steel and aluminium, whether their products are linked to 
security needs or not. The structure  of the measures also shows that their overwhelming 
concern is simply whether imports harm or threaten to harm "US producers writ large ", with 
regard essentially to their "industrial and commercial sales ". Any discussion of defence -
related needs is brief, marginal, and would actually argue against the imposition of the 
measures.  
18. Furthermore, there are several characteristics of the US measures that confirm that they 
are safeguards measures. While these aspects provide further support for the conclusion 
that the US measures are safeguards, it is not legally necessary to go beyond the two 
required "constituent features".  
2.3. THE MEASURES AT ISSUE ARE INCONSISTENT WITH SEVERAL PROVISIONS OF THE AGREEMENT ON 
SAFEGUARDS  
19. The EU agrees that the steel and aluminium measures at issue are inconsistent with several 
provisions of the Agreement on Safeguards. In particular:  
• Article 2.1 (notably, because the US a cted inconsistently with the provisions of 
Articles  4.1 and 4.2);  
• Article 2.2 (because the US did not apply the safeguard measures to the products at 
issue irrespective of their source);  
• Articles 4.1 and 4.2 (because the USDOC failed to properly demonstrat e (i) an increase 
in imports of the steel and aluminium products at issue, (ii) the existence of serious 
injury (or threat thereof) to the US domestic steel and aluminium industries and (iii) a 
causal link between increased imports and serious injury (or t hreat thereof) with 
respect to the steel and the aluminium industries);  
• Article 5.1 (because the US has failed to apply its safeguard measures only to the 
extent necessary to prevent or remedy serious injury and to facilitate adjustment);  
• Article 7.1 (be cause the safeguard measures make no provision for their application 
only for such period of time as may be necessary to prevent or remedy serious injury 
and to facilitate adjustment, and without limitation to four years or any other period 
of time);  
• Article 7.4 (because the safeguard measures fail to make provision for the progressive 
liberalisation at regular intervals during the period of their application, the expected 
duration of which is over one year);  
• Article 11.1(a) (because the safeguard measure s do not conform with the provisions 
of Article XIX of the GATT 1994 applied in accordance with the Agreement on 
Safeguards);  
• Article 12.1 (because the US failed to make the notifications listed in Article 12.1 of 
the Agreement on Safeguards);  
• Article 12 .2 (because the US failed to provide the Committee on Safeguards with all 
pertinent information);  
• Article 12.3 (because the US failed to provide adequate opportunity for prior 
consultations with Members having a substantial interest as exporters of the pr oduct 
concerned when proposing to apply or extend the safeguard measures).  WT/DS552/R/Add.1  
 
- 53 - 
 
  2.4. Article XXI is not a defence for claims under the Agreement on Safeguards  
20. When another covered agreement specifically cross -references Article XXI of GATT  1994 and 
incorporates these security exceptions by reference, then the Article XXI exceptions will also 
apply to that other agreement. The Agreement on Safeguards does not contain a similar 
provision, which would lead to the incorporation by reference of the securi ty exceptions of 
the GATT 1994. Thus, the GATT 1994 security exceptions are not available to justify 
breaches of the Agreement on Safeguards.  
21. To confirm such a conclusion it is useful to follow a standard "analytical approach" developed 
by the Appellate Bo dy, which entails an agreement -by-agreement analysis that starts with 
the text of the covered agreement in question, while keeping in mind that the lack of an 
express textual reference to a particular enumerated provision is not dispositive in and of 
itself. Cases such as China – Publications , China - Raw Materials , China - Rare Earths  and 
Thailand — Cigarettes (Philippines)  provide useful guidance in this respect.  
22. It is up to the US whether or not it wishes to invoke Article XXI of the GATT 1994 at all and , 
should it wish to do so, to develop arguments taking into account the guidance provided by 
the Appellate Body in previous cases.  
23. Indeed, the burden under Article XXI lies on the party raising the defence, which would in 
this case be the US. The same is true of the burden of showing why Article XXI applies in 
the context of the Agreement on Safeguards. The general point that there ar e textual links 
between the two agreements does nothing to specifically  establish that Article XXI is 
available as a defence for inconsistencies with the Agreement on Safeguards.  
3. THE MEASURES AT ISSUE ARE INCONSISTENT WITH CERTAIN PROVISIONS OF THE GATT  1994  
24. The EU also agrees that the steel and aluminium measures at issue are inconsistent with 
several provisions of the GATT 1994.  
25. First, they are inconsistent with Articles II:1(b) and II:1(a), because they impose duties in 
excess of bound rates. The boun d duties provided in the US' Schedule for the steel and 
aluminium products at issue are 0%, while the duties imposed through the Presidential 
Proclamations are 25% ad valorem for steel products and 10% ad valorem for aluminium 
products.  
26. Second, the import adjustments at issue are inconsistent with Article I:1 of the GATT  1994. 
The imposition of additional customs duties of 25% on steel products and 10% on aluminium 
products creates more favourable competitive opportunities on the US market for like 
products  of certain origins, namely for products from countries that were exempted from 
the additional duties on steel and aluminium and have chosen instead a quota regime 
(exemptions have been agreed with Argentina, Australia, Brazil, and Korea).  
27. Third, the admin istration of the product exclusions and the country exemptions by the US 
was not uniform, impartial or reasonable. Thus, it can be established that the US acted 
inconsistently with Article X:3(a) of the GATT 1994).  
4. ARTICLE XXI  IS NOT "SELF-JUDGING "  
28. The US’ view that that Article XXI is "self-judging " has been convincingly rejected by the 
Panel Report in Russia — Traffic in Transit . It is wrong in light of the text, context, object 
and purpose, and indeed useful effect of the GATT 1994. It is not support ed by any of the 
materials referred to in Articles 31 and 32 of the VCLT, including supplementary means of 
interpretation.  
29. In addition, while certain GATT Contracting Parties have expressed the view that Article 
XXI(b) is "self -judging", several others hav e repeatedly expressed diametrically opposed 
positions. Thus, the enquiry into the GATT 1947 palaeontology does not support the US 
position.  WT/DS552/R/Add.1  
 
- 54 - 
 
  30. The EU recalls, first, that Article XXI of the GATT 1994 is an affirmative defence. But it does 
not provide for an exception to the rules on jurisdiction laid down in the DSU or to the special 
rules on consultations and dispute settlement contained in Articles XXII and XXIII of GATT 
1994. The DSU creates compulsory jurisdiction, and it contains no security exception.  
31. Second , interpreting Article XXI as a "non -justiciable" provision in this dispute would be 
inconsistent with the terms of reference of the Panel, which follow Article 7.1 of the DSU. It 
would also be inconsistent with Article 7.2 of the DSU, whi ch specifies that "[p]anels shall 
address the relevant provisions in any covered agreement or agreements cited by the parties 
to the dispute ". 
32. Thus, the present disputes differs from the case under the GATT 1947 opposing the US and 
Nicaragua, where the ter ms of reference explicitly precluded that panel from examining or 
judging the validity or motivation for the invocation of Article XXI(b) by the US.  
33. Third,  interpreting Article XXI as a "non -justiciable" provision would make it impossible for 
the Panel to "make an objective assessment of the matter before it ", as required by 
Article  11 of the DSU, as the "matter" before the Panel must also include any defence under 
Article XXI raised by the US.  
34. Fourth, interpreting Article XXI as a "non -justiciable" provisi on would undermine one of the 
fundamental objectives of the DSU, as expressed in Article 3.2 of the DSU: security and 
predictability.  
35. Fifth, Article 23 of the DSU prohibits Members from making a determination to the effect 
that a violation has occurred, ex cept through recourse to dispute settlement in accordance 
with the DSU. If Article XXI was "non-justiciable ", a WTO Member, rather than the WTO 
adjudicating bodies, would be deciding unilaterally the outcome of a dispute.  
36. Finally, by way of illustration, t he EU would like to point out that  there are fundamental 
differences in the way that security exceptions are drafted in the GATT, on the one hand, 
and in other international agreements, on the other hand. For instance, an express text that 
comes very close  to the idea of "non -justiciability" can be found in the KORUS FTA. There is 
no such text agreed by the WTO Membership in any of the covered agreements.  
37. Thus, the invocation of Article XXI by a defending party does not have the effect of excluding 
the juri sdiction of a panel.  
38. The EU fails to understand  how Article XXI(a) can exempt the US from meeting its burden 
of proof under Article XXI(b). Like Article XXI(b), Article XXI(a) is also a justiciable provision. 
Any discretion accorded under it is not unlimit ed.  
39. The EU acknowledges that information relating to essential security interests is of a highly 
sensitive nature, but the respondent is expected at a minimum to explain in sufficient detail 
why such information cannot  be shared with the Panel. There is n othing that would prevent 
a panel, if necessary, from adopting appropriate procedures to deal with sensitive 
information in cases involving the invocation of Article XXI. At any rate, even if the US was 
justified in not providing certain information pursua nt to Article XXI(a), that would not 
discharge the US from its burden of proof in relation to Article XXI(b).  
40. Regarding the interpretation of Article XXI, in the EU’s view, the phrase "which it considers " 
refers only to the necessity test and not to any ot her provisions. Furthermore, t he 
subparagraphs to Article XXI(b) are exhaustive of the types of circumstances covered by 
the provision, and cannot be considered cumulative in nature. A ll those distinct 
circumstances are objective, and susceptible to a pane l’s assessment. Moreover, the terms 
"other emergency in international relations"  do not extend to an "emergency" in commercial 
or trade relations . 
41. Concerning the negotiating history raised by the US, even under the Havana Charter, the 
correct position would have been that the predecessor to Article XXI is "justiciable ", and not 
self-judging. Even under the Havana Charter, all issues arising out of th e Charter were WT/DS552/R/Add.1  
 
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  intended to be subject to the dispute settlement procedures provided therein, whether 
involving the ITO itself (Articles 93 -95 of the Havana Charter), or the ICJ (Article 96 of the 
Havana Charter). The evolution towards the WTO covered agree ments, and notably the 
provisions of the DSU, further confirms that position.  
42. Furthermore, the 1949 GATT Council decision cited by the US cannot be considered as a 
subsequent agreement on the interpretation even of the GATT 1947, or in any way binding 
to all the contracting parties to the GATT 1947. Still less could it be considered as binding 
under the GATT 1994. In any event, it also supports the complainants’ position rather than 
that of the US.  
5. CONCLUSIO ns 
43. What the US is advocating is, in fact, the end of a rules —based multilateral trading system. 
While the EU acknowledges the margin of discretion that WTO Members enjoy under the 
security exceptions, that discretion is not unfettered, but subject to certain objective 
elements, which can and should be  subject to review by a panel  
44. The EU hopes that its contribution in the present case will be helpful to the Panel in 
objectively assessing the matter before it and in developing the respective legal 
interpretations of the relevant provisions of the Agreement on Safeguards and of the GATT 
1994.  
 WT/DS552/R/Add.1  
 
- 56 - 
 
  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF HONG KONG, CHINA  
I. INTRODUCTION  
In DS544, DS547, DS548, DS552, DS554, DS556, and DS564 ("the parallel disputes"), the 
complainants  challenge the consistency of the measures imposed by the United States ("U.S.") on 
steel and aluminium products.  Specifically, the complainants have challenged the U.S. measures 
under several of the core provisions of the GATT  1994, including Articles II :1 and I:1. The United 
States has sought to defend its measures pursuant to Article  XXI(b) of the GATT 1994.  
Hong Kong, China ("HKC") has participated in the parallel disputes because of its systemic interest 
in the correct interpretation and application o f the provisions of the WTO -covered agreements at 
issue in these disputes and its substantial interest in the outcome of the parallel disputes.1 
For the reasons set out in Hong Kong, China's written submission, oral statement, and responses to 
questions f rom the Panel to the third parties, Hong Kong, China respectfully submits that in its view, 
the complaints have established a prima facie case that the U.S.  measures are inconsistent with the 
relevant provisions of the Agreement on Safeguards and the GATT 1994. Hong Kong, China further 
respectfully submits that the United  States has failed to demonstrate that the U.S.  measures are 
justified under Article  XXI(b) of the GATT 1994.  
Throughout these proceedings, Hong Kong, China has focused on the correct legal interpretation of 
Article  XXI(b) of the GATT 1994 in light of the critical systemic implications of the U.S. proposed 
interpretation of this provision as entirely self -judging.  
II. THE COMPLAINANTS ' CLAIMS UNDER THE AGREEMENT ON SAFEGUARDS AND THE GATT 1994  
As detailed in Hong Kong, China's written submission, Hong Kong, China considers that the 
complainants have each demonstrated that when evaluated objectively and in a manner consistent 
with the Appellate Body's statements in Indonesia – Iron or Ste el Products , the U.S.  measures are 
safeguard measures because (1) the measures suspend at least one GATT obligation, in whole or in 
part, or withdraw or modify a GATT concession, and (2) it is evident on the face of the measures 
and in their design, struct ure, and operation that the specific objective of such measures is to 
prevent or remedy serious injury to the U.S. steel and aluminium industries.2  In Hong Kong, China's 
view, each of the complainants has also demonstrated that the U.S. measures are inco nsistent with 
numerous provisions of the Agreement on Safeguards.3 
III. THE APPLICABILITY OF ARTICLE  XXI  OF THE GATT  1994  TO THE AGREEMENT ON SAFEGUARDS  
In its answers to questions from the Panel to the third parties, Hong Kong, China explained its view 
that Article  XXI of the GATT 1994 is inapplicable to the Agreement on Safeguards.4  Hong Kong, 
China considers the lack of an explicit reference to Article  XXI or any other GATT exception in the 
Agreement on Safeguards, in particular, to be critical eviden ce that Article  XXI is not available to 
justify violations of the Agreement on Safeguards. In Hong Kong, China's view, the general 
references in the Agreement on Safeguards to the GATT 1994 do not provide a sufficient legal basis 
to apply Article  XXI to th e Agreement on Safeguards. The Agreement on Safeguards strikes a 
balance between preserving the right of Members to take emergency action on imports and 
disciplining the use of safeguard measures. Consequently, allowing recourse to Article  XXI of the 
GATT  1994 is both legally unjustifiable and potentially disruptive of this inherent balance.  
 
1 See Hong Kong, China's third -party submission, para. 1; third -party statement, paras. 2 and 3.  
2 See Hong Kong, China's third -party submission, paras. 5 -8. 
3 See Hong Kong, China's third -party submission, para. 9.  
4 See Hong Kong, China's response to Panel questions Nos. 38(a), 38(c), 38(d), and 39. See also 
Hong Kong, China's third -party statement, paras. 10 -12. WT/DS552/R/Add.1  
 
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  IV. ARTICLE  XXI(B)  OF THE GATT  1994  
The United States has invoked Article  XXI(b) of the GATT 1994 in respect of all of the complainants' 
claims.  Therefore, for the reasons detailed in Hong Kong, China's answers to questions from the 
Panel to the third parties, the Panel has jurisdiction to examine and interpret Article  XXI(b).5  In 
particular, pursuant to Articles 7.2 and 11 of the Understanding on Rules and Procedu res Governing 
the Settlement of Disputes ("DSU"), the Panel is required to address Article  XXI(b) and conduct an 
objective assessment of whether Article  XXI(b) applies to the U.S. measures.  
Furthermore, since Article  XXI(b) is an affirmative defence, the Panel should first evaluate whether 
each complainant has established a prima facie case that the U.S.  measures violate certain 
provisions of the Agreement on Safeguards and the GATT  1994 and whether the United States has 
rebutted those claims, before turni ng to the interpretation and application of Article  XXI(b) of the 
GATT 1994.6 
In regard to the correct legal interpretation of Article  XXI(b), it is Hong Kong, China's view that when 
analysed in accordance with Article  3.2 of the DSU and the general custo mary rules of interpretation 
codified in Article  31 of the Vienna Convention on the Law of Treaties ("Vienna Convention"), it is 
clear that this provision preserves the right of Members to take actions necessary for the protection 
of their essential securi ty interests, but it is not entirely self -judging.7   
Pursuant to Article  31 of the Vienna Convention, the terms of Article  XXI(b) must be interpreted in 
good faith, in accordance with their ordinary meaning in their context, and in the light of the objec t 
and purpose of the GATT 1994. The language "which it considers" makes clear that Article  XXI(b) 
contemplates a certain level of unilateral determination by the invoking Member. The placement of 
the language of "which it considers" in the chapeau indicate s that it is up to the invoking Member to 
determine, in good faith, whether a measure is necessary  for the protection of its essential security 
interests.8  
Pursuant to the principle of effective treaty interpretation, a treaty interpreter may not "'adopt  a 
reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or 
inutility'".9 A proper interpretation of Article  XXI(b) must therefore give meaning to all of the 
enumerated subparagraphs. If the language "which it conside rs" is interpreted to qualify the 
subparagraphs, the subparagraphs would be rendered inutile. In order to give meaning to all parts 
of Article  XXI(b), the enumerated subparagraphs must be interpreted as subject to objective review 
by a WTO panel. Correctly  interpreted, Article  XXI(b) is therefore not entirely self -judging.  This 
conclusion is supported by the fact that the chapeau does not include any terms to suggest that the 
enumerated subparagraphs do not exhaustively list the types of actions covered by  Article  XXI(b), 
such as "including" or " inter alia ".10 
This conclusion is further supported by the context provided by Article  XX of the GATT  1994, which 
requires a "two -tiered" analysis, the first tier of which consists of objectively determining whether 
the measure at issue falls within the scope of one or more of the enumerated subparagraphs.11 
The terms of Article  XXI(b) must also be interpreted in light of their object and purpose, which as 
Hong Kong, China has explained, requires " avoid[ing] interpretations that would enable Members to 
 
5 See Hong Kong, China's answers to Panel quest ions Nos. 8 -11.  See also Hong Kong, China's 
third-party submission, para. 56.  
6 See Hong Kong, China's answer to Panel question No. 15; third -party submission, para. 4.  
7 See Hong Kong, China's third -party submission, paras. 20 -32; third -party statement, paras. 13 -21. 
8 See Hong Kong, China's third -party submission, para. 23.  See also Hong Kong, China's response to 
Panel questions Nos. 13 and 14.  
9 See Hong Kong, China's third -party submission, para. 25, quoting Appellate Body Report, Japan – 
Alcoholic Beverages II, p. 12, quoting Appellate Body Report, US – Gasoline, p. 23; third -party statement, 
para. 19.  
10 See Hong Kong, China's third -party submission, para. 26; third -party statement, para. 18.  
11 See Hong Kong, China's third -party submission, paras. 27 -29, quoting App ellate Body Report, US – 
Shrimp, paras. 118 and 119, quoting Appellate Body Report, US – Gasoline, p. 22 (explaining that the analysis 
under Article  XX is "two -tiered: first, provisional justification by reason of characterization of the measure 
[under one  of the subparagraphs]… ; second, further appraisal of the same measure under the introductory 
clauses of Article  XX (emphasis added)" and explaining that this analysis reflects "the fundamental structure 
and logic of Article  XX.").  WT/DS552/R/Add.1  
 
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  'circumvent' or 'evade' their obligations," including those under Article  XIX of the GATT 1994.12  In 
this regard, Hong Kong, China has highlighted the statement by the panel in Russia – Traffic in 
Transit that a "general object and purpose of the WTO Agreement, as well as of the GATT 1994, is 
to promote the security and predictability of the reciprocal and mutually advantageous arrangements 
and the substantial reduction of tariffs and other barriers t o trade", and therefore "[i]t would be 
entirely contrary to the security and predictability of the multilateral trading system … to interpret 
Article  XXI as an outright potestative condition, subjecting the existence of a Member's GATT and 
WTO obligations to a mere expression of the unilateral will of that Member."13  Hong Kong, China 
concurs with the panel's statement.  
In support of its interpretation of Article  XXI(b) as entirely self -judging, the United States has 
advanced certain arguments relating to t he United States v. Czechoslovakia  dispute and the views 
previously expressed by WTO Members on Article  XXI.  Hong Kong, China respectfully submits that 
the United States has failed to demonstrate that the Panel should take into account these arguments 
as a matter of law, nor has the United States demonstrated that these arguments factually support 
the U.S.  proposed interpretation of Article  XXI(b).14 
Finally, throughout these proceedings, Hong Kong, China has expressed strong disagreement with 
the U.S. vie w that the negotiating history detailed in the U.S. first written submission confirms that 
Article  XXI(b) is self -judging.15  Hong Kong, China has carefully examined the records of the 
discussions surrounding the evolution of the language "which it conside rs" and disagrees that they 
confirm that the drafters intended for this language to qualify the adjectival clauses that ultimately 
became the subparagraphs of Article  XXI(b).  As Hong Kong, China has highlighted in its submissions 
to the Panel, in contrast  to the interpretation proposed by the United States in the present parallel 
disputes, in these early discussions the United States itself did not consider Article  XXI(b) to be 
entirely self -judging or that Members' rights of redress in respect of the exce ption would be limited.16   
V. CONCLUSION  
 
The text of Article  XXI(b) of the GATT 1994, interpreted in its context and in light of the object and 
purpose of that agreement, establishes that for a measure to be justified under that provision, the 
action taken must objectively fall within the scope of Article  XXI(b).  As the party invoking 
Article  XXI(b), the United States bears the burden of demonstrating that its measures fall within the 
scope of that provision.17  Additionally, consistent with th e general international law principle of 
pacta sunt servanda  underlying all of the WTO -covered agreements,  the Member invoking 
Article  XXI(b) must do so in good faith.  For the reasons explained in Hong Kong, China's submissions 
in the parallel disputes, H ong Kong, China respectfully submits that in its view, the complainants 
have met their burden of proof and established a prima facie  case that the U.S. measures violate 
the relevant provisions of the GATT 1994 and the Agreement on Safeguards. Given that th e proposed 
interpretation by the United States of Article  XXI(b) is flawed and the United States has failed to 
meet its burden of proof under Article  XXI(b),18 Hong Kong, China also respectfully submits that the 
Panel should find that the U.S.  measures are  not justified under that provision.  
 
12 See Hong Kong, China' s third -party submission, para. 30, quoting Panel Report, Thailand – Cigarettes 
(Philippines) (Article  21.5 – Philippines), para. 7.642.  
13 See Hong Kong, China's third -party submission, para. 31, quoting Panel Report, Russia – Traffic in 
Transit, para. 7.7 9 (internal citations omitted).  
14 See Hong Kong, China's third -party submission, paras. 33 -36; 45 -51, 54.  
15 See Hong Kong, China's third -party submission, paras. 42 -44; third -party statement, paras. 22 -24. 
16 See Hong Kong, China's third -party submission, p aras. 42 -44; third -party statement, paras. 22 -24. 
17 See Hong Kong, China's third -party submission, para. 57, citing Appellate Body Report, US – Wool 
Shirts and Blouses, p. 16 (noting that the burden of establishing an affirmative defense "should rest on th e 
party asserting it.").  
18 See Hong Kong, China's response to Panel questions Nos. 16 -19, 21, 25, and 26.  WT/DS552/R/Add.1  
 
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  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF INDIA  
I. Introduction   
1. India notes that the United States does not contest any of the evidence presented and claims 
raised, by the complainants in any of the 6 disputes in which India is a third party. In other words, 
there is no longer any dispute that the measures at issue vio late multiple provisions of GATT 1994 
and Agreement on Safeguards.  
2. The entirety of United States First Written Submissions is devoted to Article XXI(b) of 
GATT  1994. Essentially, the United States argues that mere invocation of Article XXI(b) shields the 
measures at issue from scrutiny by the Panel. India disagrees for the reasons outlined below. India 
also notes that the United States also fails to offer any explanation as to how Article XXI could be a 
defence against claims raised under Article XIX of GA TT 1994 and Agreement on Safeguards (which 
are themselves an exception to the obligations contained in Articles I, II, X and XI of GATT 1994). 
Finally, the United States offers a generic defence under Article XXI without specifying the precise 
sub-clause i t invokes and without presenting any facts to support the invocation of Article XXI. India 
submits that the burden of proof is on the United States1 to establish that Article XXI applies in the 
facts and circumstances of the present dispute since Article XXI(b) of the GATT 1994 is an affirmative 
defence, just like Article XX.   
II. Justiciability of Article XXI(b) of the GATT 1994   
3. The United States argues that Article XXI(b) is "self-judging " and this "has been the 
consistently expressed view of the Unite d States for more than 70 years ".2 Nothing could be farther 
from the truth3. Such assertion contradicts the comments made by the representatives of the United 
States when Article XXI (and its predecessor) were being drafted4.  
4. India considers that the t erms "justiciable/non -justiciable " can neither be found in the DSU 
nor in any other WTO covered agreements. These terms have not been addressed in past disputes 
except in Russia – Traffic in Transit  in which the United States, intervened as a third -party5. 
Accordingly, India considers that these terms do not provide any guidance in relation to the standard 
of review to be applied to an invocation of Article XXI in dispute settlement proceedings.  
5. India submits that the invocation of Article XXI of GATT 1994  is subject to review by the Panel. 
India notes that the Panel in Russia – Traffic in Transit supports India 's position. The Panel held "[i]t 
would be entirely contrary to the security and predictability of the multilateral trading system 
established by th e GATT 1994 and the WTO Agreements, including the concessions that allow for 
departures from obligations in specific circumstances, to interpret Article XXI as an outright 
potestative condition, subjecting the existence of a Member's GATT and WTO obligatio ns to a mere 
expression of the unilateral will of that Member ."6  
6. India also recalls that the panel explicitly rejected the United States ' position that 
Article  XXI(b)(iii) is non -justiciable7 and correctly found that Article XXI(b)(iii) of the GATT 1994 is 
not totally "self-judging " in the manner asserted by Russia in those proceedings. Although the United 
States has not specifically asserted that it is invoking Article XXI(b)(iii), it is unimaginable that any 
other su b-clause of XXI(b) could apply in the facts and circumstances of the present dispute.  
 
1 Appellate Body Report, US – Wool Shirts and Blouses , p. 16  
2 US' first written submission, para. 2. 
3 Panel Report, Russia - Traffic in Transit , Appendix – subsequent conduct concerning Article XXI of the 
GATT  1947, paras. 1.11 – 1.14 with regard to the views expressed by several US agencies in 1951 in United 
States – Imports of Dairy Products  (1951).  
4 Exhibit USA -41, pp. 20 -21. 
5 Panel R eport, Russia – Traffic in Transit , paras. 7.52 and 7.103.  
6 Panel Report, Russia – Traffic in Transit , para. 7.79.  
7 Panel Report, Russia – Traffic in Transit , para. 7.103 and fn 183.  WT/DS552/R/Add.1  
 
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  7. Further in the 1982 Decision Concerning Article XXI of the General Agreement (1982 
Decision)8 the contracting parties decided that a ‘formal interpretation of Article X XI' was yet to be 
taken and, in the meanwhile, ‘all contracting parties…retain[ed] their full rights under the General 
Agreement ' and the GATT Council would give ‘further consideration to this matter in due course '. 
Since this was a later and more specific  agreement, which expressly resolved to keep the 
interpretation of Article XXI open -ended and subject to further consideration, any purported 
agreement which predated the 1982 Decision limiting  the rights of parties to the GATT to this extent 
would be modi fied or set aside by the 1982 Decision. Accordingly, Article 31(3)(c) of the VCLT gives 
precedence to the 1982 Decision on the interpretation of Article XXI of GATT 1994.9 
III. Interpretation of Article XXI(b) of the GATT 1994  
8. India considers that the phr ase "which it considers " appearing in Article XXI(b) does not qualify 
the three subparagraphs of Article XXI(b). The subparagraphs only relate to the word "action " in the 
chapeau . In other words, the three subparagraphs identify circumstances (the first tw o identifying 
the types of goods and the third being a temporal circumstance) which must objectively be met in 
order for a Member to take action under the chapeau . India considers that the phrase "which it 
considers " relates only to the "necessity " of the action. Per contra , India is of the view that the 
phrase "for the protection of [that Member 's] essential security interests " is not qualified by the 
terms "which it considers ". 
9. India acknowledges that the words "which it considers " imply that a certain degree of 
discretion is granted to the Member taking action . Accordingly, the standard of review would be 
somewhere between "total deference " and "de novo " review, both of which are excluded10. It implies 
that the Unit ed States must provide a rationale and plausible explanation regarding how or why it 
considers that its measures are "necessary " for the protection of its essential security interests. It 
is not India 's position that the panel make a judgment on what the p anel itself "considers " is 
"necessary " in the circumstances.  
10. India also considers that the three subparagraphs to Article XXI(b) are exhaustive of the 
circumstances  covered by that provision. Article XXI(b) does not include any language to suggest 
that the  three paragraphs are merely illustrative. In that regard, it may be observed that Article XX 
of the GATT 1994 containing "General Exceptions " similarly includes ten subparagraphs numbered 
(a) to (j) without conjunction between the ten subparagraphs. The t en categories are exhaustive, 
implying that in order to be justified under Article XX, a measure must necessarily fall "under at 
least one of the ten exceptions listed under Article  XX".11  
11. India further considers that the words "relating to " in subparagra phs (i) and (ii) and "taken in 
time of " in subparagraph (iii) are words linking each subparagraph to the word "action " in the 
chapeau. Accordingly, there must be a substantive nexus between particular subparagraph, the 
challenged measure and the security interests in question.  
12. Finally, India considers that each of the three subparagraphs of Article XXI(b) is  a relevant 
context for the interpretation  of the other two subparagraphs. The chapeau  is also relevant context 
for interpreting the subparagraphs. In particular, the three subparagraphs suggest that purely 
economic interests would not fall within the scope of Article XXI(b)12. India submits  that the phrase 
"other emergency in international relations " in Article  XXI(b)(iii) must be interpreted on the basis of 
its ordinary meaning in light of its context.13 The panel in Russia – Traffic in Transit , explained that 
politic al or economic differences between Members are not sufficient, of themselves, to constitute 
an emergency in international relations for purposes of subparagraph (iii) ….. unless they give rise 
 
8 Decision Concerning Article XXI of the General Agreement dated 30 No vember 1982, L/5426 at recital 
3 and para 3 (2 December 1982).  
9 International Law Commission, ‘Conclusions of the work of the Study Group on the Fragmentation of 
International Law: Difficulties arising from the Diversification and Expansion of Internation al Law 2006 ' UN Doc. 
A/73/10, p. 180, paras 17; VCLT, Articles 30, 41.  
10 Appellate Body Report, EC – Hormones , para. 115.  
11 Appellate Body Report, Brazil – Tyres , para. 139. See also, Appellate Body Report, Indonesia – Import 
Licensing Regimes , para. 5.96;  Appellate Body Report, China – Raw Materials , para. 354; Appellate Body 
Report, EC – Seal Products , para. 5.169; Appellate Body Report, US – Gasoline , para.  57. 
12 Panel Report, Russia – Traffic in Transit , paras. 7.75 and 7.133.  
13 Panel Report, Russia – Traffic in Transit , paras. 7.71 -7.76. WT/DS552/R/Add.1  
 
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  to defence and military interests, or maintenance of law and pu blic order interests .14 Accordingly , 
for emergency in commercial or trade relations to be covered by Article XXI(b), it must pose a threat 
to the functioning and/or stability of the respondent state, including the maintenance of law and 
public order. Furth er, the use of the word "other " clearly "indicate[s] that war is one example of the 
larger category of ‘emergency in international relations '".15 Thus, the phrase "or other " makes clear 
that the situation of "emergency in international relations " is of the  same category as that arising in 
the context of "war".  
13. Finally, India submits that three subparagraphs are not cumulative in nature.  The 
subparagraphs describe three distinct circumstances in which a Member may invoke Article  XXI(b). 
The intent of the drafters  is reflected in the structure of that provision, which contains three separate 
subparagraphs, that are separated by a semicolon and deal with substantially different subject 
matters16. This interpretation has been confirmed by the panel in Russia – Traffic in Transit17. The 
United States is therefore required to identify a specific subparagraph of Article XXI(b) on which it 
relies as part of its defence. The respondent may, if it wishes, rely on more than one subparagraph. 
However, it must demonstr ate that the conditions in each of the subparagraphs is satisfied.  
IV. Exception to an Exception under the GATT 1994  
14. India submits that the text and context of GATT 1994 do not support the proposition that the 
agreement provides an exception to an excepti on, i.e. specifically put, it is India 's view that 
Article  XXI(b) cannot be an exception to Article XIX. In this regard, India supports the interpretation 
proposed by Switzerland18. During the course of the substantive meeting India had argued that 
Article  XIX and XXI are separate mechanisms which allow Members to derogate from their general 
obligations under GATT to address exceptional situations - economic emergency under XIX and 
security interests under Article XXI. The general obligations could be, for instance, obligations under 
Article I or Article II.  
15. India further submits that assuming without conceding that the proposition advanced by the 
United States that Article XXI(b) is an exception to Article XIX, is tenable, the result would be merely 
a "release " for the United States from certain substantive a nd procedural obligations contained in 
Article XIX and the Agreement on Safeguards. This is because when a respondent seeks to apply 
Article XXI(b) as an exception to Article XIX, it makes two implicit admissions – (a) that the measure 
is indeed a safeguar d measure; and (b) that by applying Article XXI(b), it is not required to follow 
the disciplines contained in Article XIX and the Agreement on Safeguards. As a result, the 
Complainants would then be free to apply rebalancing measures pursuant to Article 8. 3 because the 
respondent has already admitted that the measure at issue does not confirm to the provisions of 
Agreement on Safeguards . 
 
 
14 Panel Report, Russia – Traffic in Transit , para. 7.75.  See also , paras. 7.71 -7.76. 
15 Panel Report, Russia – Traffic in Transit , para. 7.72.  
16 Panel Report, Russia – Traffic in Transit , para. 7.68.  
17 Panel Report, Russia – Traffic in Transit , para. 7.68.  
18 Opening Statement of Switzerland at the First Substantive Meeting of the Panel, US – Steel and 
Aluminium Products (DS556) , paras. 111 – 119.   WT/DS552/R/Add.1  
 
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  ANNEX  C-5 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN  
I. INTRODUCTION  
1. Japan does not take a po sition on the merits of the claims and defenses that are before 
the Panel. However, Japan has a systemic interest in the scope of application of the Agreement on 
Safeguards and the availability of non -violation remedies when measures are justified under th e 
security exception in Article XXI of the General Agreement on Tariffs and Trade 1994 ("GATT 1994").  
II. SCOPE OF APPLICATION OF THE AGREEMENT ON SAFEGUARDS  
2. A "safeguard measure " is not a defined term or notion. Thus it seems to have limited value 
to try to draw a line of what is a safeguard measure and what is not. Japan therefore disagrees with 
the view that a measure is a safeguard measure when it contains certain elements, bec ause such a 
view is based on the premise that there is a definition for "a safeguard measure ". In order to 
determine whether a measure can be characterized as a safeguard measure for purposes of 
Article  XIX of the GATT 1994 and the Agreement on Safeguards,  various factors should be considered 
on a case by case basis taking into consideration all relevant factors.   
3. Notifications submitted by WTO Members are an example of a factor that may be relevant 
in certain cases. Although notifications are not a prereq uisite for the applicability of the safeguard 
disciplines to a measure, notifications indicate that the relevant measure is taken to remedy "serious 
injury or threat thereof. " This provides some indication that the measure was designed to prevent 
or remedy  serious injury and thus should be considered as one of the relevant factors when 
determining the applicability of the safeguard disciplines.  
4. While notifications are an example of a relevant factor that may be considered to determine 
the applicability of s afeguard disciplines, a WTO Member 's formal "invocation " or its intention to 
exercise the rights under Article XIX of the GATT 1994 is not a necessary  factor for the safeguard 
disciplines to app ly. In fact, WTO panels and the Appellate Body have generally avoided relying on 
a WTO Member 's subjective intent.1 However, the Panel may consider the objectives pursued as 
reflected in the measure itself or in statements made by the Member taking the measure.  
5. Ultimately, a panel must look at all of the evidence av ailable to ensure that a WTO Member 
is not seeking to avoid the disciplines of Article XIX and the Agreement on Safeguards, or to frustrate 
other WTO Members ' right to rebalancing measures. It is likewise important to consider all of the 
evidence, because otherwise, potentially, the Agreement on Safeguards could be applied to any 
measure raising the tariff above the Article II tariff bindings, including anti -dumping measures. This 
is particularly so given that a tariff by its nature only applies to imports,  and thus even in the case 
of anti -dumping measures, the allegation could be made that they are a remedy for injury suffered 
by the domestic industry.  
6. The terms "to suspend the obligation in whole or in part or to withdraw or modify the 
concession " under A rticle XIX of the GATT 1994 are not necessarily synonymous with violations of 
the GATT 1994. That is, it may be possible to determine that a Member withdrew or modified a 
concession without assessing whether there is a violation. Having said that, Japan re cognizes that 
the determination of violation could turn out to be merely a consequential step that does not require 
much in terms of additional analysis. If the measure does not comply with the safeguard disciplines 
under Article XIX of the GATT 1994 and t he Agreement on Safeguards, then consequently, it will be 
found simply to violate a GATT 1994 obligation.   
7. A measure may have multiple objectives. For example, a measure may be taken for 
national security purpose as well as to prevent or remedy serious in jury to domestic industries. In 
such cases, the application of Article XXI of the GATT 1994 as well as the Agreement on Safeguards 
may need to be considered, respectively. If a measure can be justified pursuant to Article XXI of the 
GATT 1994, there is no need to justify the measure pursuant to Article XIX of the GATT 1994 and 
 
1 See, for example, Appellate Body Report,  US – COOL , para. 420 . WT/DS552/R/Add.1  
 
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  the Agreement on Safeguards. Article 11.1 (c) clarifies that measures that are in conformity with 
Article XXI of the GATT 1994, should not be prohibited by Article 11.1(b) of the Agre ement on 
Safeguards and that such a measure need not be in accordance with the Agreement on Safeguards. 
In this regard, Article 11.1(c) is one of the articles in the WTO Agreement that seek to avoid 
situations where a measure that is WTO -consistent under o ne of the covered agreements becomes 
WTO inconsistent under another agreement.  
8. On the other hand, when the measure at issue is not justified under Article XXI of the 
GATT  1994, the situation is more complex and a case -by-case analysis would be required. If  the 
measure can be characterised as a safeguards measure, considering all relevant factors, the 
safeguard disciplines should be considered. If the measure falls under Article 11.1(b) of the 
Agreement on Safeguards, the measure should be withdrawn as such a measure is prohibited.  Japan 
notes that in some cases, it may be unclear whether the measure at issue can be justified as a 
safeguard measure or whether it falls under the measures that are prohibited under Article 11.1(b) 
of the Agreement on Safeguards . In such a case, it would be necessary to engage in a case -by-case 
analysis, considering various factors to determine whether the measure is one of those that is 
prohibited or whether the measure can be characterised as a safeguard measure.   
III. NON-VIOLATION CLAIMS AGAINST SECURITY MEASURES JUSTIFIED UNDER ARTICLE XXI( B) OF THE 
GATT  1994  
9. While Japan does not take a view on whether the measures at issue are justified under 
Article XXI(b) of the GATT 1994, Japan does not consider that the potential  availability of a non -
violation remedy, in and of itself, provides a basis for concluding that Article XXI(b) is self -judging, 
as suggested by the United States.  
10. Japan considers that, if a measure that otherwise would be inconsistent with the GATT 
1994 sa tisfies the security exception in Article XXI, then the appropriate conclusion to draw is that 
the measure does not conflict with the GATT 1994. This does not mean, however, that a non -violation 
finding under Article XXIII:1(b) can always be made against s uch measures. Indeed, there are 
several textual and contextual elements that appear to suggest that measures that satisfy Article  XXI 
are very unlikely to be subject to a non -violation remedy or, at the very least, that a complaining 
party would have to ov ercome a high burden before succeeding in a non -violation claim in such 
circumstances.  
11. First, Article XXI(b) permits a WTO Member to take measures that would otherwise be 
deemed inconsistent with the GATT 1994 in order to address essential national securit y risks. The 
purpose of the security exception under Article XXI(b) of the GATT 1994 would be frustrated if it 
were the case that security measures justified under Article XXI(b) were unvaryingly found to nullify 
or impair benefits accruing to other Member s, or to impede the attainment of the objectives of the 
GATT 1994.  
12. The exceptional nature of the non -violation remedy also weighs against applying a 
presumption that security measures justified under Article XXI(b) nullify or impair benefits or impede 
the attainment of objectives under the GATT 1994. In Japan 's view, the very existence of a specific 
exception under Article XXI(b) might indicate that WTO Members did not necessarily expect that 
they would be challenged for actions that are properly justified under that exception.  
13. Article XXIII:1 requires a panel examining a non -violation claim under Article XXIII:1(b) 
to assess whether there was a reasonable expectation, at the time that market access commitments 
were negotiated, that the WTO -consistent measur e at issue would not be taken.2 Given that WTO 
Members agreed that security measures taken under Article XXI(b) are permissible, they clearly 
contemplated the possibility that the security exception would be invoked and thus should be 
deemed to have reaso nably expected that Members would have recourse to such an exception.  
Japan is of the view that WTO Members cannot reasonably expect that other Members will never 
rely on Article XXI( b) to justify measures otherwise inconsistent with GATT obligations.  
14. It is by no coincidence that during the GATT -era, non -violation claims were mostly used to 
address subsidy measures, since at that time, explicit subsidy rules were not in place except for 
 
2 See Panel Report, Japan – Film, paras. 10.76 -10.77.  WT/DS552/R/Add.1  
 
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  export subsidies. This situation arose not because the Contracting Parties agreed not to discipline 
subsidy measures, but because the Contracting Parties could not agree on the rules. Thus, "non -
violation claims" were used to address issues that lacked exp licit rules. Unlike such circumstances 
where there was lack of explicit rules,  Article XXI contains explicit rules for security exceptions. If a 
measure fully satisfies the explicit rules in Article XXI, it would not be reasonable to expect that such 
measu res could not be taken, and thus such a measure would not result in being subject to non -
violation remedy.WT/DS552/R/Add.1  
 
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  ANNEX C -6 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NEW ZEALAND  
I. INTRODUCTION  
 
1. New Zealand 's participation in this dispute reflects its s ystemic interest in the proper 
interpretation of Article XXI(b) of the General Agreement on Tariffs and Trade 1994 ( GATT ).  
Article  XXI(b) is being called upon by Members in a way that it has not been in the past.  In this 
changing climate, it is imperativ e that Article XXI(b) is interpreted in a principled and robust manner 
that both preserves its utility and also guards against its abuse.   
 
2. Article XXI(b) performs an important function.  It permits Members to take measures that 
would otherwise conflic t with trade obligations in order to protect certain essential security interests, 
and grants Members a degree of latitude to determine where this is necessary. This is not without 
limit, however. Article XXI(b) contains elements that are subject to object ive review by a panel. 
Further, like all treaty provisions, Article  XXI(b) must be applied in good faith.  Whether this good 
faith obligation has been fulfilled is also a matter that is open to panel review. These limiting features 
maintain the utility of the national security exception for Members, while still preserving the security 
and predictability of the international trading system and protecting Article  XXI(b) against misuse.  
 
II. SCOPE OF PANEL REVIEW UNDER ARTICLE XXI(b) GATT  
 
3. Article XXI(b) GA TT provides that:  
 
Nothing in this Agreement shall be construed  
…  
(b) to prevent any contracting party from taking action which it considers necessary for the 
protection of its essential security interests:  
(i) relating to fissionable materials or the materials from which they are derived;  
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic 
in other goods and materials as is carried on directly or indirectly for the purpose of 
supplying a military establishment;  
(iii) taken in time of war or other emergency in international relations;  
4. A key issue in this dispute is the extent to which Article XXI(b) retains Members ' discretion to 
determine the matters contained in that provision, and the extent to which action t aken in reliance 
on it can be reviewed by a panel. As a preliminary point, it can be noted that this is not a question 
of justiciability. The fact that a provision fully or partially defers to the judgment of a Member will 
not, in itself, render conduct ta ken under that provision non -justiciable. As discussed further below, 
all treaties must be applied and performed in good faith.1  Whether this obligation of good faith has 
been met is a justiciable matter susceptible to panel review. The degree of discretion retained by 
Members under Article XXI(b) will, however, impact upon the nature of a panel 's assessment of that 
conduct. An ex amination of the scope of this discretion is therefore an appropriate place to start our 
interpretation.   
 
Article XXI(b) contains both elements that defer to Members' own judgment and elements 
that are capable of objective review by a panel  
 
5. The start ing point to the interpretation of Article XXI(b) is the phrase 'which it considers ' 
contained in the chapeau. It is clear from the words directly preceding the phrase, that the term 'it' 
is a reference to the relevant contracting party.  To 'consider ' means "to contemplate mentally, fix 
 
1 Vienna Convention on the Law of T reaties, Articles 31(1) and 26; Appellate Body Report US – Shrimp , 
at para 158.   WT/DS552/R/Add.1  
 
- 66 - 
 
  the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, 
take note of ".2 This is an inherently subjective exercise. The use of 'which it considers ' in the chapeau 
to Article XXI(b)  signals that what is being referred to is a subjective assessment to be carried out 
in good faith by the relevant contracting party.  
 
6. The phrase 'which it considers ' qualifies both the assessment of the 'necessity ' of the action 
taken and the determin ation of the invoking Member's 'essential security interests '. This is clear 
from the structure of the chapeau to Article XXI(b). The terms in the chapeau run one after the 
other. There is no grammatical or formatting division suggesting the phrase 'which it considers ' 
applies only to the term 'necessary ' and not to 'for the protection of its essential security interests '.  
This is further supported by the use of the term 'its' before 'essential security interests '. The chapeau 
is not referring to essential security interests in the abstract, it is referring to the essential security 
interests of the particular Member invoking Article XXI(b). It would be artificial to suggest that any 
entity other than a Member can determine that Member 's essential security interests.  It is for a 
Member, acting in good faith, to determine its essential security interests, and the measures 
necessary to protect those interests.    
 
7. As recognised by the Panel in the recent decision Russia – Traffic in Transit , the phrase 'which 
it considers ' does not qualify the three subparagraphs to Article XXI(b). Unlike the chapeau, the sub -
paragraphs are framed in objective terms. As noted above, the chapeau uses 'it considers ' and 'its 
essentia l security interests ' to indicate that these are subjective matters left to the judgment of a 
Member. In stark contrast, the subparagraphs are framed in purely objective terms: whether the 
measures relate to fissionable materials; whether the measures rela te to military materials; whether 
the measures were taken in a time of war or emergency in international relations. This reflects a 
deliberate effort to differentiate between those elements that are to be subjective and left to the 
judgment of a Member, an d those that are objective requirements, subject to determination by a 
panel.   
 
8. This interpretation is supported by the context of Article XXI(b), in particular, Article  XXI(a), 
which provides that contracting parties shall not be required to furnish i nformation the disclosure of 
which it considers  contrary to its essential security interests. An objective assessment of a Member 's 
asserted security interests and the necessity of action taken for their protection could require a panel 
to be provided with  information contrary to Article XXI(a).  
 
9. This interpretation is also supported by the object and purpose of the GATT.  The general 
object and purpose of the GATT, as well as the Marrakesh Agreement Establishing the World Trade 
Organization, is to 'promote the security and predictability of the reciprocal and mutually 
advantageous arrangements and the substantial reduction of tariffs and other barriers to trade '.3  A 
number of provisions, including Article XXI(b), permit Members to take measure that wo uld 
otherwise conflict with trade obligations in order to protect other interests.  While these provisions 
grant Members a degree of flexibility, they contain in -built limits to preserve the security and 
predictability of the trading system and protect aga inst abuse. The three subparagraphs to 
Article  XXI(b) perform this important limiting function by delineating the factual circumstances in 
which Article XXI(b) can be invoked. As noted by the Panel in Russia – Traffic in Transit , it would be 
"entirely cont rary" to the security and predictability of the multilateral trading system established 
by the above agreements to interpret Article XXI(b) as "an outright potestative condition, subjecting 
the existence of a Member's GATT and WTO obligations to a mere exp ression of the unilateral will 
of that Member ".4 
 
10. Accordingly, whether the factual circumstances set out in one of the sub -paragraphs to Article 
XXI(b) exist is a matter subject to objective panel review.  In carrying out this review, a panel should 
take into account the particular factual circumstances relevant to the invoking Member. It would be 
unhelpful to attempt to prescribe the scope of each of the factual circumstances contained in the 
sub-paragraphs. Whether a particular set of facts falls wit hin the sub -paragraphs is a matter to be 
assessed on a case by case basis.  An overly formulistic approach to the interpretation of the 
circumstances described in the sub -paragraphs could unduly limit the scope of Article  XXI(b) and, 
in doing so, undermine  its utility. The terms of Article  XXI(b) are not static. They must be read by a 
 
2 www.oed.com . Last accessed  04 July 2019.   
3 See Appellate Body Report, EC – Computer Equipment , at para  82; Appellate Body Report  EC – 
Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US), at para  433; Appellate Body 
Report  EC – Chicken Cuts , at para  243.   
4 Panel Report , Russia – Traffic in Transit , at para 7.79.  WT/DS552/R/Add.1  
 
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  treaty interpreter in the light of contemporary concerns of the community of nations.5  The degree 
to which the existence of these factual circumstances must be substantiated  by the Member relying 
on Article XXI(b) will also depend on the circumstances.   
 
Members are obliged to perform their obligations under Article  XXI(b) GATT in good faith  
 
11. It is a principle of general international law that all treaty provisions must be interpreted and 
performed in good faith.6 This obligation of good faith arises irrespective of whether a provision 
defers to the judgment of Members or is subject to objective review by a panel.   
 
12. The obligation to pe rform a treaty in good faith requires Members to not use the exceptions 
in Article XXI(b) as a means to circumvent its obligations under GATT.7  In carrying out an 
assessment of conduct taken in reliance on Article XXI(b), a panel may consider whether thi s 
obligation of good faith has been met. There is no test, in the abstract, for how a panel should assess 
whether this obligation of good faith has been met. 'Good faith' is not a threshold, or a standard of 
proof, it is an assessment of the integrity of a  Member's performance of a particular treaty provision. 
This assessment will differ depending the facts and circumstances of the particular case. In the 
context of Article XXI(b), it will likely involve consideration of the connections between the measure 
in dispute, the essential security interests engaged and the factual circumstances in the relevant 
sub-paragraph. The question for the panel is whether, in all relevant circumstances, the Member's 
reliance on Article XXI(b) is a good faith performance of t hat provision.  
 
5 Panel Report , US – Shrimp , at para 129.  
6 Vienna Convention on the Law of Treaties, Articles 31(1) and 26; Appellate Body Report US – Shrimp , 
at para 158.   
7 Panel R eport, Russia – Traffic in Transit , at para 7.133.  WT/DS552/R/Add.1  
 
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  ANNEX C -7 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE RUSSIAN FEDERATION  
I. Introduction  
Russia welcomes this opportunity to present its views as a third party in these disputes.  
Russia recalls that seven Members challenge the US'  import adjustments on steel and aluminium 
products in parallel disputes.1 The proper legal characterization of these measures is at the heart of 
each of them. The reasons and grounds for adopting the measures at issue are not country -specific 
and are app licable to all complaints, showing a significant overlap between these disputes.  
While the Russian Federation recognizes the exclusive right of the respondent to choose its line of 
defense, the US ignored and, therefore, failed to rebut complainants` spec ific arguments regarding 
inconsistency of the measures at issue with the GATT 1994 and the Agreement on Safeguards merely 
asserting that these measures are consistent with Article XXI (b) of the GATT 1994. In this regard, 
Russia stands that (i) the US fail ed to invoke Article XXI(b) of the GATT 1994 to justify the measures 
at issue as necessary for protection of its essential security interests; (ii) the measures at issue are 
safeguards in their essence.  
II. The task of the Panel and the order of analysis  
The complainants in each of the seven disputes claim that the measures by the United States on 
certain steel and aluminium products fall within the scope of the Agreement on Safeguards and 
Article XIX of the GATT 1994. The United States, on the other hand,  does not characterize its 
measures on steel and aluminium as safeguard measures: according to the United States, the 
measures were introduced pursuant to Section 232 of the Trade Expansion Act of 1962, aimed at 
protection of national security interests an d fortification of steel and aluminium industries .  
The fact that the measures at issue are not characterized by the United States under the domestic 
law as safeguards is, in and of itself, not dispositive of the question of whether the measures 
constitute  safeguards within the meaning of Article 1 of the Agreement on Safeguards. Otherwise,  
the domestic characterization of a measure could negate Member 's obligations under the WTO 
agreements.  
In such a situation, the Panel`s first task is to determine whethe r or not the measures at issue are 
designed: 1) solely to protect essential security interests of the United States; 2) solely to avoid 
injury (or  threat thereof) to its national steel and aluminum industry from imports of like or directly 
competitive prod ucts; 3) combination of both items.   
If the Panel positively concludes that the measures at issue fall solely under the first scenario 
(protection of essential security interests of the United States ), it will be in a position to proceed 
with the analysis  of the United States` defense under Article XXI(b) of the GATT 1994. If the Panel 
determines that the measures are designed to protect the US domestic steel and aluminum  
industries from the injury or threat thereof caused by imports of like or directly co mpetitive products,  
the Panel may proceed with examining their consistency with Article XIX of the GATT 1994 and the 
Agreement on Safeguards.  
To conclude, whether or not the measures by the United States qualify as measures provided for in 
Article XIX of t he GATT 1994 or measures provided for in Article XXI(b) of the GATT or both is an 
objective question that the Panel must decide based on the objective assessment that it is required 
to make pursuant to Article 11 of the DSU. In making its objective assessm ent, the Panel must 
 
1 These parallel disputes over the legality of the United States' import adjustments on steel 
and aluminium products, are DS544 (China), DS547 (India), DS548 (EU), DS552 ( Norway),  DS554 
(Russia),  DS556 (Switzerland) and DS564 (Turkey).  WT/DS552/R/Add.1  
 
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  engage in a case -specific analysis by examining all of the relevant facts and examine the constituent 
features of the measures at issue.  
III. Invocation of Article XXI(b) of the GATT 1994  
There is no disagreement between the parties tha t the panels have jurisdiction to resolve the 
disputes, as the US confirms its existence. The Panels were established by the DSB with the standard 
terms of reference in accordance with Article 7.1 of the DSU, without any exemptions, exceptions 
or limitatio ns thereto. Therefore, the Panel 's function is to examine the matters set out in the panel 
requests and to make an objective assessment of the matter before it pursuant to Article 11 of the 
DSU, as well as the applicability of and conformity with the relev ant covered agreements assisting 
the DSB in making its findings and recommendations. Making any provisions "non-justiciable ", the 
way the US puts it forward, will directly prevent the Panel to meet this function.  
Nothing in the Panel 's terms of reference o r in the WTO Agreements indicates that this Panel is not 
able to resolve the disputes and make necessary findings, or that invocation of Article XXI(b) of the 
GATT  1994 affects in any way or limits the ability of the Panel to make such findings and therefo re 
to assist the DSB in making relevant findings and recommendations.  
Specific attention should also be paid to the US attempts to introduce the concept of "justiciability " 
to the context of the WTO Agreement without providing any arguments based on the t ext of any of 
the WTO Agreements, including the DSU, in order to support this concept. Given that the WTO 
Agreements do not provide for this concept, explicitly or implicitly, Russia would like to caution the 
Panel from taking the path of bringing a new te rm to the WTO dispute settlement system and remind 
that the recommendations and rulings of the DSB cannot add to or diminish rights and obligations 
provided in the covered agreements. Introduction of a concept non -existent under the covered 
agreements clea rly violates the provisions of Article 3.2 of the DSU.  
Turning to the substance of Article XXI(b) of the GATT 1994, Russia would like to notice the following. 
It starts with a chapeau ( "nothing in this agreement shall be construed ") followed by the list of 
actions that may not be prevented by the application o f the GATT 1994. In the wording of the 
chapeau of this Article  there are no limiting conditions under which the measure applied shall fall. 
On the contrary, the chapeau provides that there could be no limitations in the Agreement for the 
specific purposes provided by that Article.  
The wording in this part of the said Article provides that it is the Member taking the action who 
determines which actions are necessary to protect its essential security interests and excludes any 
objective examination or evalua tion by adjudicative body. Therefore, the Panel is not in a position 
to make an objective determination as to whether the Member taking such an action is 
inconsistent with the chapeau.  
The adjectival clause "which it considers " in the chapeau can be read to qualify the "necessity " of 
the action for the protection of the invoking Member`s essential security interests, as well as the 
determination of these "essential security interests ". 
Thus, Russia considers that it is within th e sole discretion of a Member to determine its essential 
security interests and what actions are necessary for their protection. Should a Member consider 
certain actions necessary to protect its essential security interests, the declaration thereof by that  
Member is enough to satisfy the requirements of the chapeau of Article XXI(b) of the GATT 1994. 
Neither WTO panels nor the WTO itself have the right to determine the essential security interests 
for the Member, whether the Member correctly chose the actio n necessary to protect those security 
interests and whether or not that action is indeed necessary.  
The presence of subjective element, however, does not preclude the panels to assess the facts 
related to the measures at issue, applicability of the GATT t o the measures at issue and conformity 
of the measures at issue with the relevant provisions. The possible panel`s judgement that the term 
"which it considers " qualifies the determination of the essential security interests and necessity of 
the actions and , thus, leaves these elements under sole discretion of the Members, does not prevent 
the Panel to finish its analysis and resolve the matter before it in a WTO consistent way.   WT/DS552/R/Add.1  
 
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  Meanwhile, the compliance with Article XXI(b) of the GATT 1994 is conditioned by three distinct 
settings (subparagraphs i -iii). These subparagraphs and the way they are formulated represent the 
objective elements that are susceptible to the Panel's review au contraire  to the chapeau.  
The required nexus between a particular subparag raph and the measures (actions taken to protect) 
is established through the phrases "relating to " (connection with subparagraphs (i -ii)) and "taken in 
time of " (connection with subparagraph (iii)).  
As a result, the Panel shall determine whether the measure s at issue meet the requirements of 
either subparagraph. In order to do so, the Panel shall assess the legal arguments and evidence 
provided in support. A conclusion that the measures meet these requirements is a necessary 
prerequisite in order to establis h whether they could be justified under the national security 
exceptions.  
However, Russia wishes to note that the US seems to have invoked only the chapeau of 
Article  XXI(b) of the GATT 1994 without indicating which particular subparagraphs out of three 
applies and why. The reading of Article XXI(b) of the GATT 1994 proposed by the US makes part of 
this Article, i.e. subparagraphs (i) -(iii), redundant and inutile. However, the drafters of the GATT 
1994 have specifically added the three subparagraphs qualif ying the introductory statement, which 
must not be regarded as effectively absent in the text. The Panel bears the task of giving them their 
proper meaning.  
Thus, Russia is of a position that when invoking Article XXI(b) of the GATT the respondent is unde r 
obligation to identify a particular subparagraph of Article XXI(b) of the GATT 1994. The complainants 
and the Panel should not be left to guess whether the measures in question are related to any of 
subparagraphs. Mere reference to Article XXI(b) without  any identification of a particular 
subparagraph or any combination of such subparagraphs strips these paragraphs of all the meaning 
and reduces the text of the Article to its chapeau only.   
Therefore, in these proceedings, the Panel was deprived of an abi lity to assess in which particular 
circumstances the measures at issue were taken and examine whether these particular 
circumstances really exist within the meaning of Article XXI(b)(i) -(iii). The US failed to fulfill its 
burden of proof and appropriately justify its defense.  
Although the US failed to identify relevant subparagraphs and provide any arguments why they are 
applied in relevant situation, Russia would like to note the following.  
None of the subparagraphs of Article XXI(b) of the GATT 1994 cou ld be applied in the present 
situations since neither the relevant acts of the US, nor its submissions shed light on the close and 
genuine relationship between the measures in question and fissionable materials or the materials 
from which they are derived;  or the traffic in arms, ammunition and implements of war and to such 
traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying 
a military establishment. Neither the relevant acts of the US, nor its submissio ns elaborate on any 
chronological concurrence in case of the measures at issue and any war or any other emergency in 
international relations that required the US to take said measures.  
It is important to note that import adjustments on steel and aluminium (1) were implemented by 
the US through the same sources, same legal acts in respect of all the countries, (2) have the same 
reasoning and grounds for all of the adjustments in respect of all the Members affected, (3) it is not 
possible to isolate the cause  for adoption of the measures at issue for one particular WTO Member.   
Therefore, even if the Panel were in a position to engage into analysis of the applicability of any of 
the subparagraphs to any of the WTO Member in isolation, it would constitute an e rror since the 
measures at issue are not country -specific.  
To sum up, in Russia`s view the task of the Panel is (i) to conclude that the chapeau of Article  XXI(b) 
of the GATT 1994 is a subjective element, remaining in the discretion of the sovereign state,  limited 
by the obligation of good faith; (ii) to assess whether the defending Member acted in good faith 
while imposing and maintaining the measures at issue; (iii) to review whether the defending Member 
met the requirements under subparagraphs. In respec t of the latter, Russia is of the position that 
the US failed to establish a prima facie  case under Article XXI(b) of the GATT, as it failed to 1) refer WT/DS552/R/Add.1  
 
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  to particular subparagraph, 2) provide all relevant evidence and explanations supporting that those 
actions taken for protection of the essential security interests (i) relate to fissionable materials, (ii) 
relate to traffic in arms, ammunition and implements of war, and/or (iii) were taken in time of war 
or other emergency.  
In their turns, the complainants  in these disputes have provided sufficient evidence to establish 
prima facie  case of numerous violations under the Agreement on Safeguards and the GATT 1994. 
This evidence supports complainants` position that the measures at issue are purely safeguards in  
their nature, object and purpose and have nothing in common with the security exceptions. We 
believe that the nature of the measure could not be unilaterally determined by the Member. In order 
for a measure to be subject to security exception it is not en ough just to label it as such under 
domestic procedures.  
Russia would also like to note that if a particular measure complies with a particular provision of a 
particular WTO Agreement, this automatically means only one thing – that the measure complies 
with that provision of that particular WTO Agreement. This does not mean that the measure is 
automatically excluded from being subjected to provisions of another WTO Agreement. Therefore, if 
the measures at issue meet the requirements of Article XXI(b) of the  GATT 1994, their consistency 
with Article XXI(b) of the GATT 1994 does not exclude the Panel`s examination of the applicability 
of the Agreement on Safeguards.  
There is no mutual exclusivity between the GATT 1994 and the Agreement on Safeguards. Article  XIX 
of the GATT 1994 and the Agreement on Safeguards are silent in respect of particular reasons for a 
Member to seek to prevent serious injury to its producers as a result of increased imports, whether 
this is done for employment, protection of traditional  industries, environmental, national security or 
any other reasons. Therefore, when a Member adopts an emergency action against such imports 
the Member shall comply with the requirements of Article XIX of the GATT 1994. If the prevention 
of injury is neede d for national security purposes, the Member adopting the emergency action shall 
comply with the requirements of Article XXI(b) of the GATT 1994.  
IV. Legal characterization of measures at issue as safeguards  
The Russian Federation concurs with the complain ants that the United States ' measures at issue 
present the constituent features of safeguard measures within the meaning of Article XIX of the 
GATT 1994 and the Agreement on Safeguards, and thus constitute safeguard measures on the basis 
of an objective an alysis.  
First, the United States has withdrawn or modified its tariff concessions and suspended at least one 
of its obligations under the GATT 1994. By introducing additional duties, the United States has 
exceeded the bound rate established under its Sche dule of concessions on goods (Schedule), which 
amounts to withdrawal or modification of its tariff concessions. By withdrawing or modifying its 
concessions under the Schedule, the United States has suspended its obligations under 
Article  II:1(a) and (b) of  the GATT 1994.  
Second , by their design, structure and expected operation, the import adjustments on certain steel 
and aluminium products sought to prevent or remedy the impairment to the domestic industry of 
the United States caused or threatened by incr eased imports of the subject products. This specific 
objective of the United States ' measures is discernible from the texts of the U.S. President 's 
respective Proclamations, as well as the investigation Reports on the effects of imports of steel and 
aluminium coupled with related documents, such as the U.S. President 's Memoranda on imports of 
steel and aluminium, associated announcements, as well as numerous statements by the U.S. 
President.  
Third , the withdrawal or modification of tariff concessions  and suspension of GATT obligations have 
a demonstrable link to the prevention or remediation of the alleged serious injury.  
In the range of legal instruments and official statements, the United States specifically declared that 
the measures are sought to  stop the decline in its steel and aluminium industries caused by imports, 
to provide relief to those industries from competition with imports, to enable the respective domestic 
industries to increase their production capacity or capacity utilization and p rofitability, and to prevent 
the closures of production facilities.  WT/DS552/R/Add.1  
 
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  Tariff concessions and obligations under the GATT 1994, in particular, those under Article II:1(a) 
and (b), however, impeded the ability of the United States to achieve its goals (preventi on or 
remedying the alleged injury or threat thereof to the U.S. industry). Thus, the United States chose 
to suspend those tariff concessions and obligations. While suspending its tariff concessions and its 
obligations under Article  II:1(a) and (b) of the GATT 1994, the United States has limited imports of 
steel and aluminium products by making steel and aluminium products originating from certain 
Members more expensive when marketed in the United States.  
Hence, there is a clear link between the withdrawal or modification of tariff concessions and 
suspension of GATT obligations to the prevention or remediation of the alleged serious injury.  
The US in support of its position states that notification under the relevant provisions of Article  XIX 
of the GATT 1994 and of the Agreement on Safeguards is a prerequisite to the applicability of 
safeguard disciplines to the measures taken. In respect of import adjustments on certain steel and 
aluminium products it did not notify them as safeguard measures, on  this basis, in its view, the 
measures could not be deemed safeguards. These allegations must fail.  
Notifications pursuant to Article XIX:2 of the GATT 1994 or Article 12 of the Agreement on 
Safeguards are neither necessary condition nor a prerequisite fo r the applicability of safeguard 
disciplines. The compliance with any of obligations set forth in Article XIX:2 of the GATT 1994 and 
Article 12 of the Agreement on Safeguards does not affect the consistency of measures with other 
provisions under Article  XIX of the GATT 1994 and the Agreement on Safeguards.  
Absence of a notification does not and cannot change any of the constituent features of safeguards 
measures. Being otherwise would help Members to escape from application of the provisions of the 
Agreem ent on Safeguards and negative consequences to their measures (for example, DSB 's finding 
on inconsistency of such measures with the Agreement on Safeguards).  
Notification requirements are not an instrument of characterization or identification of measure 's 
nature, but of transparency. Otherwise, if the applicability of a WTO agreement were to be 
established based on Member 's compliance with the notification requirements:  
− should that be so, the issue of the applicability of an agreement would be excluded from 
objective assessment by a panel, as it would be left for Member's discretion to choose a 
particular agreement under which to notify its measure;  
− in such a logic a measure that was not properly notified under particular agreement 
becomes non -existent,  as by not notifying that measure under any agreement at all a 
Member effectively declares that there are no relevant notification requirements that a 
measure falls under. Therefore, there's no WTO agreement that measure is covered by.  
Furthermore, the Un ited States claims that the Agreement on Safeguards does not apply to 
measures that a Member considers necessary for the protection of its essential security interests 
through Article 11.1 (c) of the Agreement on Safeguards, which provides that "this Agree ment does 
not apply to measures sought, taken or maintained by a Member pursuant to provisions of GATT 
1994 other than Article  XIX". In this regard, Russia notes the following.  
Hypothetically, there might be three scenarios. First, a measure is sought, tak en or maintained 
exclusively pursuant to provisions of Article XIX of the GATT 1994. Second, a measure is sought, 
taken or maintained pursuant to provisions of Article XIX of the GATT and some other provisions of 
the GATT 1994. Third, a measure is sought, taken or maintained exclusively pursuant to provisions 
of the GATT 1994 other than Article XIX of the GATT 1994. Only the latter category of measures is 
excluded from the scope of the Agreement on Safeguards in accordance with Article  11.1(c).  
We note that every term in this Article, as any treaty provision, has its own meaning and due 
attention should be paid to it. Without providing definitions of the terms "sought ", "taken " or 
"maintained " Russia is of the view, that they represent different stages of measure 's "life", i.e. 
whether a Member tries to take the measure (initial stage where the measure does not exist yet), 
whether a Member has already taken the measure (the action is made, measure becomes alive) and 
"maintained " (the measure exist s for some time, long lasting measure that continues to exist).  WT/DS552/R/Add.1  
 
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  The second interpretation of the words "seek", "take" and "maintain " may be derived from the text 
of Article 11.1(b) which uses the same combination of the terms. In the context of this provis ion it 
is obvious that the word "seeks " is used in the meaning "asks/requests from someone ". This 
provision covers measures, in particular, in respect of exports, that can only be obtained from 
another Member. Therefore, the text of Article 11.1(b) effecti vely says that a Member must not 
request another Member to adopt, in particular, exports restrictions. Given that the forms in which 
"emergency actions " may be taken under Article XIX of the GATT and the Agreement on Safeguards 
are not predetermined or exh austively listed, the same meaning of the term "seek" may be applied 
in the context of Article 11.1(a) or 11.1(c).     
V. Conclusion  
Russia has already noted that each of the seven disputes has the same subject matter and, 
therefore, there is a significant  overlap between them. This fact has a bearing on how the panels in 
the respective disputes should go about the ensuring security and predictability to the multilateral 
trading system. The delicate issue here is that when two or more panels are tasked with  the duty to 
resolve the same matter or closely related claims such a situation raises complex issues. The most 
dangerous consequence of the parallel proceedings involving the same or closely connected matters 
is the contradictory outcome of the disputes. This should be avoided.  
It follows from Articles 3.2 and 3.4 of the DSU that a holistic and coherent resolution of all parallel 
disputes is  critical  for the overall vitality of the multilateral trading system.  
Russia reminds that the ultimate  goal of the Panel is to make such findings "as will assist the DSB 
in making the recommendations or in giving the rulings provided for in the covered agreements" 
pursuant to Article 11 of the DSU. The achievement of this goal will be seriously prejudiced should 
the panels arrive at the different conclusions as for the proper legal characterization of the measures 
at issue in the respective disputes, given that these measures are the same.WT/DS552/R/Add.1  
 
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  ANNEX C -8 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SINGAPORE  
I. INTRODUCTION  
1. This dispute raises novel issues concerning the interpretation of Article XXI of the GATT and 
whether it can be used as a defence to justify inconsistencies with the Safeguards 
Agreement. Singapore is not commenting on the merits of the claims and defences raised 
by the parties to the current disputes. Singapore's participation is strictly limited to whether 
Article XXI is applicable to and can be used as a defence to justify inconsistencies with the 
Safeguards Agreement, wh ether a Panel has jurisdiction over Article XXI, and the 
interpretation of Article XXI, in particular, the chapeau of Article XXI(b).   
II. EXECUTIVE SUMMARY OF SINGAPORE'S THIRD PARTY ORAL STATEMENT  
A. Whether Article XXI is applicable to and can be used a s a defence to justify 
inconsistencies with the Safeguards Agreement  
2. Article XXI is not applicable to and cannot be used as a defence to justify inconsistencies 
with the Safeguards Agreement. The Appellate Body has applied a standard "analytical 
approac h" in determining the relationship between the provisions of different covered 
agreements1 and the absence of an explicit cross -reference to Article XXI in the Safeguards 
Agreement is not per se  dispositive of the issue.  
3. Safeguard measures allow WTO Members to take action that would otherwise be 
incompatible with their obligations under the GATT 19942. Article XIX of the GATT 1994 and 
the Safeguards Agreement operate to provide for the suspension of the application of the 
obligations under the GATT 19 94, and may be imposed "only" where the conditions and 
circumstances listed in the relevant provisions are satisfied3. In other words, the Safeguards 
Agreement already provides a comprehensive set of provisions as to when a Member may 
justifiably apply safeguard measures. Allowing Article XXI to apply as an exception to the 
Safeguards Agreement would not be aligned with th e comprehensive nature of the 
Safeguards Agreement and would be inconsistent with the intent to provide greater discipline 
when Members apply safeguard measures.  
4. Further, the Safeguards Agreement is a different creature from other WTO Agreements as 
it essentially provides for the suspension of GATT obligations. To layer Article XXI over and 
above the provisions of the Safeguards Agreement would require a clear intent to be distilled 
from the text of those provisions read in their proper context. This is  not the case here. 
Given the sui generis nature of the Safeguards Agreement, our views are confined to the 
Safeguards Agreement only.  
B. The Panel's jurisdiction in respect of Article XXI  
5. The Panel has jurisdiction over any Member's invocation of Arti cle XXI in WTO dispute 
proceedings and the Panel is required to address such invocation. The phrase "shall address" 
in Article 7(2) of the DSU indicates that panels are "required to address the relevant 
 
1 This requires an agreement -by-agreement analysis that starts with the text of the agreement in 
question, and entails a "thorough analysis of the relevant provisions", on the understanding t hat the lack of an 
express textual reference is not dispositive in and of itself  (Appellate Body Report, China – Rare Earths , paras. 
5.61 – 5.63) . The relationship must be "ascertained through scrutiny of the provisions concerned, read in the 
light of their context and object and purpose, with due account being taken of the overall architecture of the 
WTO system as a single package of rights and obligations, and any specific provisions that govern or shed light 
on the relationship between the provisions  of different instruments."  (Appellate Body Report, China – Rare 
Earths , para. 5.55).  
2 Panel Report,  Dominic an Republic – Safeguard Measures , para. 7.54.  
3 Article 2 of the Safeguards Agreement . The preparatory materials to the Safeguards Agreement and 
the preamble to the Safeguards Agreement confirm this.  WT/DS552/R/Add.1  
 
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  provisions in any covered agreement or agreements cit ed by the parties to the dispute"4. 
This means that the Panel must address the relevant provisions to the dispute at hand, 
including Article XXI(b).  The plain and ordinary meaning of the DSU's provisions do not speak 
of any exceptions to the application o f Articles 7(1) (which set out the Panel's terms of 
reference) and 7(2).  
C. Interpretation of Article XXI(b) – the applicable test  
6. To the extent that the non -justiciability of a claim under Article XXI(b) relies on an 
interpretation that Article XXI(b)  is totally self -judging, such an interpretation should not 
apply based on the explanation below. First, the word "it" in the phrase "it considers 
necessary" clearly refers to a "contracting party". The focus of any scrutiny therefore has to 
be from the st andpoint of the invoking Member and whether that Member considers the 
action to be necessary . This phrase points to the self -judging nature of the assessment and 
indicates that a Member is allowed to determine the elements of the chapeau with a 
significant  degree of subjectivity. Second , the assessment of threats to the essential security 
interests of a Member and the necessary measures in response involves judgment on the 
part of that Member and is dependent on the particular context and circumstances of t hat 
Member. There is necessarily a degree of subjectivity in this exercise, and an accompanying 
diversity of assessments that has to be respected. Third, there are many areas in the WTO 
regime where some margin of appreciation is accepted5.  
7. A higher l evel of deference and a significant margin of appreciation should be accorded to a 
Member's chosen level of protection, and its assessment of risk and of the necessity of a 
measure taken for the protection of its essential security interests.  
8. Notwithst anding the above, Article XXI(b) should not be read as giving a Member entirely 
unfettered discretion in invoking this exception. For this exception to be meaningful, a 
Member must act in accordance with the standard of good faith as set out in Article 26 of 
the Vienna Convention on the Law of Treaties6 and with the general international law 
prohibition of abuse of rights. It is also well accepted that a Member seeking to rely on an 
affirmative exception bears the burden of proof. The Member invoking Artic le XXI would 
have to provide its reason(s) for doing so, by minimally explaining its course of action and 
invocation of Article XXI, bearing in mind the margin of appreciation to be accorded to 
Members on matters involving their essential security interest s. The extent and degree of 
detail required is fact and context specific and will be informed by the specific circumstances 
surrounding the invocation, as well as the underlying security and confidentiality 
considerations.  
9. We have carefully considered the Russia – Traffic in Transit panel's approach in interpreting 
Article XXI(b)(iii) in the context of certain prohibitions on goods traffic in transit, and 
generally agree with that panel's analysis of Article XXI(b)(iii).  
III. EXECUTIVE SUMMARY OF SINGAP ORE'S RESPONSES TO PANEL QUESTIONS TO 
THIRD PARTIES  
A. Response to Question 8  
10. There are no provisions in the DSU  that support a distinction between justiciable and non -
justiciable matters in relation to the measures that are the subject of the present dispute.  
 
4 Appellate Body  Report , Mexico – Taxes on Soft Drinks , para. 49. 
5 For example, in the context of the SPS Agreement , the Appellate Body has recognised that "[t]he 
determination of the appropriate level of protection… is a prerogative  of the Member concerned and not of a 
panel or of the Appellate Body" (Appellate Body Report, Australia – Salmon , para. 199 ). The Appellate Body 
also noted, i n relation to the necessity of a measure taken for the protection of health under the GATT 1994,  
that "… it is undisputed that WTO Members have the right to determine the level of protection of health that 
they consider appropriate in a given situation" (Appellate Body Report, EC – Asbestos , para. 168.).  
6 Done at Vienna, 2 3 May 1969, 1155 U.N.T.S. 331; 8 International Legal Materials 679.  WT/DS552/R/Add.1  
 
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  B. Response to Question 10  
11. We agree with the panel's statements in Russia –Traffic in Transit that "[ g]iven the absence 
in the DSU of any special or additional rules of procedure applying to disputes involving 
Article XXI of the GATT 1994… [the] invocation of [Article XXI(b)] of the GATT 1994 is within 
the Panel's terms of reference for the purposes of th e DSU."7  
C. Response to Question 13  
12. We agree with the panel's statements in Russia — Traffic in Transit  that "[t]he obligation of 
good faith requires that Members not use the exceptions in Article XXI as a means to 
circumvent their obligations under the GATT 1994" and that "[i]t is therefore incumbent on 
the invoking Member to articulate the essential secur ity interests said to arise from the 
emergency in international relations sufficiently enough to demonstrate their veracity"8.  
D. Response to Question 14  
13. The good faith test is met when a Member demonstrates that it has in good faith, albeit 
subject ively, considered, based on information available, that there is a threat to its essential 
security interest, and that its chosen action is necessary for the protection of its security 
interest.  
E. Response to Question 15  
14. Article XXI is an affirmative defence and the invoking Member bears the burden of proof9. 
F. Response to Questions 16 and 17  
15. The phrase "which it considers" applies to the entire chapeau of Article XXI(b)10. 
G. Response to Question 18  
16. A panel should consider whether a Membe r's invocation of Article XXI is consistent with the 
principle of good faith, while recognising the element of self -judgment in Article XXI.  
H. Response to Question 19  
17. The Member invoking the exception bears the burden to show that it has, in good fai th, 
considered, based on the information available, that the elements of Article XXI(b) are made 
out. The extent and detail required to demonstrate this is fact and context specific.  
I. Response to Question 20  
18. The subparagraphs to Article XXI(b) are e xhaustive of the types of circumstances covered 
by the provision. Typically, phrases like "including "11 denote that a list is merely illustrative. 
Nothing in Article XXI(b) suggests that the subparagraphs are merely an illustrative list. In 
interpreting t he circumstances in the subparagraphs, a panel should adopt a contextual 
approach.  
J. Response to Question 21  
19. A nexus between a particular subparagraph and the challenged measure is required. The 
determination of that nexus should be done in good fait h, taking into account the Member's 
circumstances and concerns.  
 
7 Panel Report, Russia – Traffic in Transit , paras. 7.54 and 7.56.  
8 Panel Report, Russia – Traffic in Transit , paras. 7.133 and 7.134.  
9 As noted by the panel in Russia – Traffic in Transit , it is "incumbent on the invoking Member to 
articulate the essential security interests said to arise from the emergency in international relations sufficiently 
enough to demonstrate their veracity. " (Panel Report, Russia – Traffic in  Transit, para. 7.134.)  
10 Panel Report , Russia — Traffic in Transit , para s. 7.130 – 7.133 and 7.146. 
11 Panel Report , EC – Approval and Marketing of Biotech Products , para. 4.161.  WT/DS552/R/Add.1  
 
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  K. Response to Question 25  
20. A panel should consider whether a Member's invocation of Article XXI is consistent with the 
principle of good faith, while recognising the element of self-judgment in Article XXI.  
L. Response to Question 26  
21. A panel will need to assess if a Member has acted in accordance with the standard of good 
faith and with the general international law prohibition on abuse of rights.  
M. Response to Question 27  
22. Factual evidence is relevant to considering the applicability of the conditions provided in the 
subparagraphs of Article XXI(b). The extent and degree of detail required is fact and context 
specific.  
N. Response to Question 28  
23. Subparagraphs (i) to (iii) inform each other as to the overall subject matter and scope of 
applicability of Article XXI(b)12. 
O. Response to Question 29  
24. Subparagraphs of Article XXI(b) are not cumulative in nature13.  
P. Response to Question 30  
25. It is inadvisable to put forward a label or prescriptive definition of "other emergency in 
international relations". We agree with the panel's statements in the Russia — Traffic in 
Transit panel report that there is a useful "sliding scale " of circums tances that might qualify 
as an "emergency in international relations " and could include any circumstances that fall 
within the description of "heightened tension or crisis ", or "general instability engulfing or 
surrounding a state "14. We also agree that it is incumbent on the invoking Member to 
articulate the essential security interests said to arise from the emergency in international 
relations sufficiently enough to demonstrate their veracity15; and what qualifies as a 
sufficient l evel of articulation will depend on the emergency in international relations at 
issue16. The Member would also need to demonstrate that its measure is applied in good 
faith.  
Q. Response to Question 31  
26. Both Articles  XX17 and XXI(b) are affirmative d efences. A  Member seeking to rely on either 
exception bears the burden of proof. With respect to measures under Article XXI, a higher 
level of deference and a significant margin of appreciation should be accorded to the WTO 
Member's chosen level of protect ion, its assessment of risk, and of the necessity of a 
measure taken for the protection of its essential security interests, as compared to those 
taken under Article XX. This is because Article XXI(b) contains the additional phrase "it 
considers necessary" , which is not present in Article XX.  
R. Response to Question 32  
27. Article XXI(a) is concerned with a scenario where a Member is asked to furnish information, 
the disclosure of which it considers contrary to that Party's essential security interest. In 
contrast, Article XXI(b) deals with the situation in which a Member takes actions which it 
considers necessary for the protection of its essential security interest. There is an element 
of subjectivity in both Article XXI(a) and Article XXI(b) but the prin ciple of good faith and 
the general international law prohibition of abuse of rights applies to both.  
 
12 Panel Report, Russia — Traffic in Transit , para.  7.65, 7.67 and 7.74 . 
13 Panel Report , Russia – Traffic in Transit , para. 7.68.  
14 Panel Report , Russia – Traffic in Transit , para. 7.76.  
15 Panel Report , Russia – Traffic in Transit , para. 7.134.  
16 Panel  Report, Russia – Traffic in Transit , para. 7.135.  
17 Appellate  Body Report, US – Wool Shirts and Blouses , p. 16 and Appellate Body Report, US – 
Shrimps , para . 121; Appellate Body Report, EC – Asbestos , para s. 115 – 116. WT/DS552/R/Add.1  
 
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  S. Response to Question 34  
28. See paragraphs 3 and 4 above.  
T. Response to Question 36  
29. If the Panel determines that the measures are safeguard measur es within the meaning of 
Article XIX and the Safeguards Agreement, Article XXI of the GATT 1994 does not apply.  
U. Response to Question 37  
30. The phrase "nothing in this agreement " in Article XXI(b) should be interpreted as referring 
to the obligations under the GATT 1994. It should not be interpreted to allow Article XXI(b) 
to operate as an exception to the conditions for suspension of GATT obligations under Article 
XIX as this wou ld render the strict conditions of Article XIX and the Safeguards Agreement 
meaningless.  
V. Response to Questions 38 and 39  
31. While the references to Article XIX in the Preamble, Articles 118 and 11.1(a) of the 
Safeguards Agreement reflect a relationshi p between Article XIX of the GATT and the 
Safeguards Agreement, they do not establish any textual basis for applying Article XXI of 
the GATT 1994 to the Safeguards Agreement19.  
W. Response to Question 40  
32. The general interpretative note to Annex 1A o f the WTO Agreement indicates that the GATT 
1994 and the other agreements are to be considered together20. Thus, if a conflict were to 
exist between a Safeguards Agreement provision and a GATT 1994 provision, the Safeguards 
Agreement provision would preva il to the extent of the conflict. Applying the panel's 
definition of "conflict "21, the justification of a measure under Article XXI that would otherwise 
be prohibited under the Safeguards Agreement would not give rise to a "conflict" within the 
meaning of the General Interpretative Note, since Article XXI cannot be considered a 
permissive obligation. The presumption against conflict should also be borne in mind22. In 
any case, our position is that Article XXI cannot apply as an exception to the Safeguards 
Agreement.  
 
 
18 Article  1 of the Safeguards Agreement provides that the term safeguard measure "shall be 
unders tood to mean those measures provided for in Article XIX of GATT 1994." The Appellate Body stated that  
Article 1 of the Safeguards Agreement "suggests that Article XIX continues in full force and effect, and, in fact, 
establishes certain prerequisites for t he imposition of safeguard measures"  (Appellate Body Report,  Argentina – 
Footwear , para. 83 ). 
19 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines) supports this 
interpretation . The question there was whether Article XX of the G ATT applied  to the CVA. Similar to the 
preamble to the Safeguards Agreement, t he preamble to the CVA referred  to the Members’ desire to "further 
the objectives of the GATT 1994 " and recognise s "the importance of the provisions of Article VII of GATT 1994 
and desir[e] to elaborate rules for their application in order to provide greater uniformity and certainty in their 
implementation ". The panel found that the language  and the title to the CVA reflects a general link between 
the CVA and the GATT 1994, but it does not establish any textual link to Article XX of the GATT, and 
consequently does not establish any affirmative textual basis for concluding that Article XX appl ies to the CVA  
(paras . 7.748 and 7.749) . 
20 Appellate  Body Report, Brazil – Desiccated  Coconut , p. 8. 
21 The panel  made the following observation on the definition of "conflict " as set out in the General 
Interpretative Note, stating that "[i]n light of the  wording, the context, the object and the purpose of [the 
General Interpretative Note], we consider that it is designed to deal with (i) clashes between obligations 
contained in GATT 1994 and obligations contained in agreements listed in Annex 1A, where th ose obligations 
are mutually exclusive in the sense that a Member cannot comply with both obligations at the same time, and 
(ii) the situation where a rule in one agreement prohibits what a rule in another agreement explicitly permits " 
(Panel Report, EC – Bananas III (Ecuador) , para. 7.159 ). 
22 Panel Report, Indonesia  – Autos , para . 5.349 . WT/DS552/R/Add.1  
 
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  ANNEX C -9 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SWITZERLAND  
I. Introduction  
 
1 Switzerland intervenes because of its systemic interest in the correct and consistent 
interpretation and application of the provi sions of the covered agreements at issue in this dispute 
and its substantial trade interest. Switzerland also has a particularly strong interest in the present 
dispute because it relates to the same matter  as the matter raised by Switzerland in DS556 and b y 
five other WTO Members in their own disputes against the United States.  
II. The Panel has jurisdiction to review the invocation of Article XXI(b) of the GATT 1994  
2 The United States claims that Article XXI(b) which it invokes is "self-judging" and therefore 
the Panel may not make findings on Norway's claims. Thereby, although the United States asserts 
that it does not dispute the Panel's jurisdiction, in essence it argues that there is nothing for the 
Panel to decide other than to  note that the United States has invoked Article XXI(b) of the 
GATT  1994.  
3 Switzerland notes that there are various principles and obligations included in the WTO 
covered agreements, in particular in the DSU, which confirm that the Panel has jurisdiction to  review 
the invocation by the United States of Article XXI(b).  
4 First, Article 1.1 of the DSU provides that the rules and procedures of the DSU apply to 
disputes brought pursuant to the consultation and dispute settlement provisions of, inter alia , the 
GATT 1994, without excluding Article XXI(b). Furthermore, neither Article XXI(b), nor any other 
provisions of the GATT 1994 contain any particular rules on dispute settlement that would exclude 
measures from the review by WTO adjudicating bodies because a WTO  Member taking those 
measures invokes Article XXI(b) of the GATT 1994.  
5 Second, pursuant to its terms of reference, this Panel must examine the matter referred to by 
Norway in its request for the establishment of a Panel "in the light of the relevant provis ions of the 
covered agreements cited by the parties to this dispute." Article 7.2 of the DSU further emphasises 
that obligation in providing that "[p]anels shall address the relevant provisions in any covered 
agreement or agreements cited by the parties to  the dispute".  
6 Third, that the Panel has jurisdiction to review Article XXI(b) of the GATT 1994 is further 
supported by the obligation for the Panel to make an objective assessment of the matter pursuant 
to Article 11 of the DSU, including "an objective a ssessment of the facts of the case and the 
applicability of and conformity with the relevant covered agreements". It is difficult to see how the 
Panel could fulfil its mandate pursuant to Article 11 of the DSU if it were to decline to exercise the 
validly established jurisdiction and make no finding on Norway's claims.  
7 Fourth, concluding that the Panel cannot make findings on Norway's claims would "diminish" 
the rights of Norway to seek redress within the meaning of Article 23 of the DSU and to bring a 
dispute pursuant to Article 3.3 of the DSU. It would also be inconsistent with Article 23.2(a) of the 
DSU as it would mean that, by merely invoking Article XXI(b), WTO Members would be able to 
unilaterally decide the outcome of a dispute, in place of WTO adju dicating bodies.  
8 Fifth, concluding that the Panel may not review the invocation of Article XXI(b) would also 
undermine one of the fundamental objectives expressed in Article 3.2 of the DSU that the dispute 
settlement system is a "central element in providi ng security and predictability to the multilateral 
trading system" and "serves to preserve the rights and obligations of Members under the covered 
agreements".  
9 Sixth, accepting that a panel cannot review the complainant's claims because a WTO Member 
invoke s Article XXI(b) of the GATT 1994 would disregard the "affirmative defence" nature of that WT/DS552/R/Add.1  
 
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  provision  which implies that it is for the Member invoking Article XXI(b), in the present case the 
United States, to establish that the measures at issue comply with  the requirements laid down in 
Article XXI(b) of the GATT 1994.  
III. There is no obstacle to the Panel's exercise of jurisdiction due to the political nature of essential 
security interests  
10 The United States' argument that the invocation of Article XXI(b)  precludes a panel from 
exercising its jurisdiction with respect to the entire dispute because of the political nature of the 
essential security interests finds no basis in the DSU. Instead, several provisions of the DSU confirm 
that a panel is required to  address and rule on the claims raised by the complainant which fall within 
its terms of reference. To find otherwise would be contrary to Articles 3.2, 3.3, 7, 11, 19 and 23 of 
the DSU. It would be also inconsistent with the aim of the WTO dispute settlem ent mechanism, 
which pursuant to Article 3.7 of the DSU is to "secure a positive solution to a dispute" and would 
undermine the security and predictability of the multilateral trading system as a whole. Switzerland 
further notes that other international co urts and tribunals have previously explicitly rejected an 
argument that a "political question" constitutes an obstacle to the exercise of jurisdiction.  
IV. The invocation of Article XXI(b) of the GATT 1994 is justiciable  
11 The United States claims that the i nvocation of Article XXI is "non -justiciable" because 
Article  XXI(b) is "self -judging". According to the United States, the allegedly "self -judging" nature 
derives from the text and context of Article XXI(b). That interpretation is wrong and must be 
reject ed. 
The ordinary meaning of Article XXI(b) of the GATT 1994 taken in its context  
12 The United States argues that the text of Article XXI(b) of the GATT 1994 and, in particular, 
the words "which it considers" establishes the self -judging nature of that provi sion. 
13 While the words "which it considers" imply that a certain degree of discretion be granted to a 
Member pursuant to Article XXI(b), that discretion relates only to the "necessity" of such action. 
This follows in particular from the function of the verb  "consider" which is to link the adjective 
"necessary" to the noun "measures". Thus, the wording and the grammatical structure of that 
provision do not support the proposition that the words "which it considers" qualify the determination 
of the "essential security interests" or the elements listed in the subparagraphs of Article XXI(b).  
14 The United States' interpretation of Article XXI(b) disregards that the chapeau refers to action 
which the Member concerned considers necessary "for the protection of its e ssential security 
interests". Thus, pursuant to the chapeau, not any interests may justify an action being taken under 
Article XXI(b). Only "essential security interests" do. Furthermore, the action undertaken by a WTO 
Member must be necessary "for the pro tection" of that Member's essential security interests. This 
suggests that, when a Member invokes Article XXI(b), a panel needs to review whether there is a 
rational relationship between the action taken and the protection of the Member's essential securit y 
interests.  
15 In addition, the interpretation needs to fully take into account the subparagraphs of Article 
XXI(b). Subparagraphs (i) to (iii) set out specific requirements that must be objectively met by a 
measure to be justified under Article XXI(b). It i s clear from the wording and the grammatical 
structure of Article XXI(b) that the three subparagraphs all relate to the word ‘action' in the chapeau 
and are not part of the relative clause "which it considers necessary for the protection of its essential 
security interests". It demonstrates that the phrase "which it considers" does not qualify the three 
subparagraphs. This understanding is fully supported by the Spanish and French versions of Article 
XXI(b).  
16 Furthermore, the interpretation put forward by th e United States must be rejected as it would 
render subparagraphs (i) to (iii) inutile . Indeed, should a WTO Member enjoy absolute discretion 
with respect to actions that it may take for protecting its essential security interests, there would 
have been no  need to include in the text of Article XXI(b) of the GATT 1994 the conditions laid down 
in subparagraphs (i) to (iii).  WT/DS552/R/Add.1  
 
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  17 Switzerland submits that the immediate context  provided by the other paragraphs of Article 
XXI as well as the broader context  provided b y Article XX of the GATT 1994 and the provisions of 
other WTO agreements, including in particular Articles 7.1, 7.2, 11 and 23 of the DSU, support  the 
interpretation that Article XXI(b) is reviewable by a panel.  
The object and purpose of the GATT 1994  
18 The object and purpose of the GATT 1994 further supports the understanding that Article 
XXI(b) is subject to review by WTO panels and the Appellate Body. Indeed, the possibility to 
completely shield a trade -restrictive measure from any scrutiny by merely raisi ng Article XXI(b) 
would go against the security and predictability of the multilateral trading system established by the 
GATT 1994 and the WTO Agreement contrary to the object and purpose of the GATT 1994 as 
expressed in the third recital of its preamble.  
The negotiating history confirms that a panel may interpret and review the application of 
Article XXI(b) of the GATT 1994  
19 The United States claims that the negotiating history of Article XXI(b) of the GATT confirms 
that the Panel may not interpret Article  XXI of the GATT 1994 and review its application. The United 
States' arguments appear to be based on a selective reading of some of the documents of the 
negotiating history, taken out of their context.  
20 In Switzerland's view, the discussions of the ITO neg otiating committee to which the United 
States refers confirm that the drafters did not envisage Article XXI(b) as a self -judging provision.  
21 The negotiating history also offers no support to the United States' argument that a non -
violation complaint is the  only remedy available in case the Member taking the measure invokes 
Article XXI(b).  
V. The Panel's substantive analysis  
22 Once the Panel confirms its jurisdiction and that there is no obstacle to the exercise of its 
jurisdiction, the Panel should examine t he dispute on its merits. Switzerland considers that 
ArticleXXI, being an affirmative defence, requires the Panel to first start its review by addressing the 
claims raised by Norway.  
23 The Panel should then, before entering into an analysis of the United St ates' defence, examine 
the relationship between Article XXI of the GATT 1994 and the claims raised under the Agreement 
on Safeguards and the GATT 1994. It is only to the extent that the Panel concludes that Article 
XXI(b) is available as a defence with res pect to the claims at issue that the Panel should examine 
that defence.  
A. The applicability of the Agreement on Safeguards to the measures at issue  
24 Switzerland agrees with Norway that the measures at issue fall within the scope of the 
Agreement on Safeguard s and are inconsistent with several provisions of that Agreement.  
1. Whether the measures at issue constitute safeguard measures falling within the scope of the 
Agreement on Safeguards has to be determined by the Panel as part of its objective assessment of 
the matter  
25 The legal characterization of a measure for the purposes of determining the applicability of an 
agreement is not an issue to be decided unilaterally by the Member taking the measure. It is an 
issue that must be determined objective ly. Article 11 of the DSU requires a panel to undertake an 
"objective assessment of the matter before it, including an objective assessment of the facts of the 
case and the applicability of  and conformity with  the relevant covered agreements". It follows t hat, 
as part of its objective assessment, a panel must examine whether the provisions of the covered 
agreements invoked by the complainant as the basis for its claims are "applicable" to the challenged 
measures.1  
 
1  Appellate Body Report, Indonesia – Iron or Steel  Products , para. 5.31.  WT/DS552/R/Add.1  
 
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  26 The Panel's duty to conduct an "objective  assessment of the matter" implies that the Panel is 
not bound by the way the Member concerned characterizes the measure in its municipal law. Rather, 
"a panel must assess the legal characterisation for purposes of the applicability of the relevant 
agreeme nt on the basis of the ‘content and substance' of the measure itself".2 More specifically, a 
panel is called upon "to assess the design, structure, and expected operation of the measure as a 
whole".3 For that purpose, "a panel must identify all the aspec ts of the measure that may have a 
bearing on its legal characterization, recognize which of those aspects are the most central to that 
measure, and, thereby, properly determine the disciplines to which the measure is subject".4  
2. The measures at issue c onstitute safeguard measures falling within the scope of the 
Agreement on Safeguards  
27 In order to constitute a safeguard measure, a measure must present two constituent features. 
First, the measure must suspend, in whole or in part, a GATT obligation or withdraw or modify a 
GATT concession. Second,  the suspension, withdrawal, or modification in question must be designed 
to prevent or remedy serious injury to the Member's domestic industry caused or threatened by 
increased imports of the subj ect product.5  
28 The measures at issue are the import adjustments imposed by the United States on imports 
of certain steel and aluminium products which, among others, consist of additional import duties 
exceeding the bound rate provided for in the United St ates' Schedule of Concessions. As 
demonstrated by the Steel and Aluminium Reports of the USDOC, the Presidential Proclamations 
imposing the measures as well as countless statements of the US officials, those measures have 
been imposed in order to revive th e US steel and aluminium industries and protect them from the 
harm caused by increasing imports. It follows that the measures at issue suspend at least one GATT 
obligation or withdraw or modify one GATT concession and are clearly designed to prevent or rem edy 
serious injury to the US domestic steel and aluminium industries. Thus, those measures present 
both constituent features of a safeguard measure and fall within the scope of the Agreement on 
Safeguards. The fact that the United States has not adopted th ose measures pursuant to its domestic 
safeguard legislation or has not notified them to the WTO as safeguard measures does not change 
that conclusion.  
29 This is further confirmed by certain additional features of those measures such as their 
extraordinary ch aracter, their complementary relationship with trade remedy measures, their focus 
on the "import" of the products concerned and the fact that they have been adopted pursuant to a 
procedure which is very similar to the procedure followed in US safeguard inv estigations.  
B. The relationship between Article XXI(b) of the GATT 1994 and the Agreement 
on Safeguards  
30 The United States argues that Article XXI of the GATT 1994 is a defense to alleged breaches 
of the Agreement on Safeguards. Unlike other covered agree ments, the Agreement on Safeguards 
does not, however, include any direct or indirect reference to Article XXI of the GATT 1994. There 
is, therefore, no basis for arguing that a defence under Article XXI(b) of the GATT 1994 should be 
available for violation s of the Agreement on Safeguards.  
31 Furthermore, contrary to what the United States argues, none of the general references to 
the GATT included in the Agreement on Safeguards suggests that Article XXI(b) should be available 
as a defence for measures inconsi stent with the Agreement on Safeguards.  
32 Article XXI can be invoked as a defence with respect to obligations assumed by WTO Members 
under the GATT 1994. It cannot, however, be invoked as a defence with respect to another GATT 
provision, such as Article XIX , which establishes a right to impose safeguard measures which 
derogate  from the obligations under the GATT 1994, provided that certain conditions and 
circumstances listed in that provision and in the Agreement on Safeguards are satisfied. Given the 
relationship between Article XIX of the GATT 1994 and the Agreement on Safeguards, it logically 
follows that if Article XXI is not available as a defence for measures that fall within the scope of 
 
2  Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.32.  
3  Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  
4  Appellate Body Report, Indonesia – Iron or Steel Products , para. 6.6.  
5  Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60 . WT/DS552/R/Add.1  
 
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  Article XIX (and are inconsistent with that provision), it is nei ther available as a defence for measures 
that are inconsistent with the Agreement on Safeguards.  
33 Finally, an interpretation allowing WTO Members to justify impermissible safeguard measures 
under Article XXI would, in fact, render Article 11.1(a) of the Agr eement on Safeguards inutile . 
C. General remarks on the United States' defence under Article XXI(b) of the 
GATT 1994  
34 Switzerland notes that, although the United States invokes Article XXI(b) of the GATT 1994, 
it does not address any of the substantive req uirements imposed by that provision. The United 
States does not even identify under which subparagraph of Article XXI(b) it submits its defence.  
35 Since Article XXI(b) constitutes an affirmative defence, the burden of proof rests on the 
respondent, the Unit ed States, to show that the conditions set out in Article XXI(b) are met. 
Switzerland notes that so far, the United States has failed to meet its burden.  
 WT/DS552/R/Add.1  
 
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  ANNEX C -10 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TÜRKIYE  
1  INTRODUCTION  
1.1.  This integrated executive summary contains the arguments presented by the Republic of 
Turkey (Turkey) in its third -party written submissions, oral statements, and responses to t he Panel's 
questions in the following disputes parallel to United States – Additional Duties on Steel and 
Aluminium  (DS564) : DS544, 547, 548, 552, 554, and 556.  
1.2.  Turkey agrees with the complainants in the parallel disputes that the Section 232 measur es 
imposed by the United States on steel and aluminium articles are safeguard measures within the 
meaning of Article XIX of the GATT 1994 and the Agreement on Safeguards. Moreover, Turkey 
believes that the Panels in these disputes should examine the compla inants' claims under Article XIX 
and the Agreement on Safeguards before  addressing the United States' defence under Article XXI. 
As Turkey has consistently argued in these disputes as well as in DS564, matters falling under 
Article  XIX are outside the scop e of Article XXI. Put simply, Article XXI does not apply to safeguard 
measures and cannot justify violations of WTO safeguards disciplines. The respective scopes of 
application of Articles XIX, XX and XXI are mutually exclusive.  
1.3.  With respect to Arti cle XXI, it is impossible to overstate the systemic importance of this dispute. 
The United States' position is that a WTO Member can take any trade -related action that it wishes, 
for any protectionist purpose that it wishes, label it as a "national securit y" measure, invoke allegedly 
unlimited discretion, and by doing so escape any and all disciplines of WTO law. This position, if 
sustained by the Panel, would create a large loophole within the WTO legal system that would enable 
all WTO Members to escape th eir WTO obligations at will. This would render the rights of other WTO 
Members an empty shell, place them entirely at the discretion of an importing Member, and would 
reduce the entire multilateral trading system to a nullity.  
1.4.  It is, therefore, vital that this Panel approaches Article XXI in a manner that preserves the 
balance of rights and obligations of the WTO Members under the covered agreements. Turkey fully 
supports the need to protect the right of WTO Members to take genuine nat ional security measures, 
for which they should enjoy an appropriate margin of deference. But, at the same time, there must 
continue to be meaningful WTO disciplines on domestic trade measures. There is no such balance in 
the United States' position.  
1.5.  The United States' entire defence in this dispute is based on the national security exception in 
Article XXI(b) of the GATT 1994. The United States' principal argument is that, as soon as the 
defendant invokes this provision, a WTO panel must lay down its tools, no matter how WTO -
inconsistent the challenged measure is or how unreasonable the invocation of Article XXI might be. 
According to the United States, in these circumstances, a dispute becomes "inherently political in 
nature", and, therefore, inapprop riate for any review in the WTO.  
1.6.  Turkey notes that, beyond the fact that its approach to Article XXI is manifestly unreasonable 
on substance, the United States' approach to Article XXI is somewhat contradictory in procedural 
terms. On the one hand, the United States does not dispute that panels have jurisdiction over such 
disputes within the meaning of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), and may receive submissions from the parties and third parties. On 
the other hand, the United States calls the invocation of Article XXI "non -justiciable" or "self -
judging". The United States argues that each WTO Member has the right to determine, for itself, 
what it considers necessary for protecting its essential sec urity interests.  
1.7.  To Turkey, these two positions taken together constitute an elaborate empty formality. The 
Panel has jurisdiction, but cannot effectively exercise any meaningful review. This makes no sense 
to Turkey and clearly runs counter to the objective of the WTO dispute settlement system to act as 
a central element in providing security and predictability to the multilateral trading system.  WT/DS552/R/Add.1  
 
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  1.8.  The United States also tries to divert attention from the major loophole in the WTO disciplines 
that its approach would create, by arguing that Members can rely on non -violation claims to address 
the situation. This, of course, misses the point. WTO Members are entitled to expect WTO -consistent 
behaviour by all other WTO Members. Under the approach adv ocated by the United States, the 
boundary between WTO -consistent and WTO -inconsistent behaviour essentially becomes irrelevant. 
This cannot be right.  
1.9.  In Section 2, Turkey summarises its legal arguments regarding the United States' defence 
under Arti cle XXI of the GATT 1994, as well as the correct interpretation of this provision. In this 
Section, Turkey also explains that Article XXI cannot serve as a valid exception to "economic 
emergencies", like the measures at issue in these disputes. In Section 3, Turkey summarises its 
conclusion.  
2  THE UNITED STATES' DEFENCE UNDER ARTICLE XXI(B) OF THE GATT 1994 IS 
MISPLACED AND SHOULD BE REJECTED  
2.1  The United States' defence under Article XXI has important consequences  
2.1.  The United States does not enga ge with the complainants' detailed explanations that the 
United  States' import measures on steel and aluminium constitute safeguard measures. Rather, the 
United States' central argument is that the measures at issue were taken under Article XXI(b), which 
may serve as a defence to claims under the Agreement on Safeguards. Therefore, should the Panel 
agree that the United States' Article XXI defence fails, it should immediately find in favour of the 
complainants, including Turkey.  
2.2.  The United States' arg uments under Article XXI are very generic. First, the United States 
invoked Article XXI(b) in general terms, without specifying which sub -paragraph of this provision it 
considers to be relevant. In Turkey's view, the Panel could reject the United States' i nvocation on 
this basis alone. A Member invoking an exceptions provision must specify in detail which particular 
part of that provision it is relying on, for instance, a particular sub -paragraph. It would similarly be 
insufficient if a WTO Member sought to  justify, for instance, an import ban by invoking "Article XX 
of the GATT 1994", without specifying which of the sub -paragraphs of Article XX it is relying on. In 
the prior disputes where respondents took this approach under Article XX, the Appellate Body found 
this defence to be "patently underdeveloped".1  
2.3.  In addition, the United States provides no facts in support of this defence, for instance, to 
argue that the facts at hand reflect an "emergency in international relations" within the meaning of 
Article XXI(b)(iii) or to substantiate its implicit assertion that "essential security interests" of the 
United States are at issue. Of course, the United States bears the burden of proof under Article XXI 
and must provide both argument and evidence to suc cessfully invoke this provision. Given the 
absence of any relevant evidence adduced by the United States, should the Panel reject the United 
States' view of the self -judging nature of the entirety of Article XXI(b), it should also immediately 
reject the Un ited States' defence.  
2.2  The overview of Turkey's interpretation of the chapeau  and sub -paragraphs of 
Article  XXI 
2.4.  Turkey turns to its views on the correct interpretation of Article XXI of the GATT 1994.  
2.5.  Article XXI(b) consists of a chapeau  and of three sub -paragraphs. The chapeau  contains the 
phrase "any action which it considers necessary". This phrase confers a margin of discretion on the 
invoking Member, in the choice of measures that protect ess ential security interests. There is also 
certain inherent flexibility and discretion in the articulation of a Member's "essential security 
interests", in the light of the nature of the concept of security interests.  
2.6.  Nevertheless, the discretion that  informs the chapeau  of Article XXI(b), even if wide, cannot 
be boundless.  
 
1 Appellate Body Report, Thailand – Cigarettes (Philippines) , paras. 178 -179. WT/DS552/R/Add.1  
 
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  2.7.  First, the term "considers" cannot mean that a Member is entirely free to adopt any measures, 
including measures that are manifestly unrelated to any conceivable security int erests or that are 
manifestly unable to serve any security purpose. In prior decisions of WTO panels and the 
Appellate  Body, even  very permissive provisions have been interpreted to include, at least, some 
residual objective standard.  
2.8.  As an example,  consider Article 3.7 of the DSU, which states that a Member is free to "exercise 
its judgment" whether engaging in WTO dispute settlement would be "fruitful". The expression 
"exercise its judgment" is, for all practical purposes, synonymous with "consider ", and the subject 
matter would appear to be naturally suited to very wide Member discretion. Nevertheless, panels 
and the Appellate Body have never considered this provision to grant unfettered discretion  to a 
Member. Rather, they have emphasized that Mem bers are " largely  self-regulating"2 – not entirely  
self-regulating – and that Members' judgment "is not entirely unbounded".3 The "bound" is, for 
instance, whether that Member has previously waived its right to resort to a dispute settlement 
process, thr ough an explicit and considered decision.4   
2.9.  Second, by including the term "essential" before "security interests", the drafters clearly 
intended to limit the discretion emanating from the phrase "it considers" to situations of particularly 
serious matters of national security.5 
2.10.   Third, Article XXI(b) contains three sub -paragraphs that qualify  the chapeau . These sub -
paragraphs qualify the measures  (action) that can be taken pursuant to the chapeau . This 
qualification consists in either setting out a particular subject matter  to which those measures must 
be related (e.g. fissionable materials or derivates6) or by describing the time period  in which those 
measures must be taken (time of war or other  emergency in international relations7). 
2.11.   Compliance with the three sub -paragraphs is not left to discretion of the invoking Member . 
These qualifying phrases are open to a fully objective, multilateral review by a WTO panel, pursuant 
to the "objecti ve assessment" requirement in Article 11 of the DSU.8  This is, in particular, because 
the discretion -granting phrase "which it considers" refers only to the necessity of the measure under 
the chapeau , not also to the three sub -paragraphs.  
2.12.   Turkey believes that its interpretation of the chapeau  and the sub -paragraphs of Article XXI(b) 
is well grounded in the principles of treaty interpretation set out in Articles 31 to 33 of the Vienna 
Convention. The chapeau  and the sub -paragraphs are  separate, and impose separate requirements. 
In the Spanish language version of Article XXI, this separation is further underscored by a comma 
after the chapeau , before the word " relativas ", which introduces each of the sub -paragraphs and 
drives a further wedge between the chapeau  and the three sub -paragraphs . 
2.13.   Next, some of the internal documents of the United States' delegation from the period of 
GATT  negotiations, attached as exhibits to the United States' first written submissions, illustrate how 
Article XXI would  read if the term "considers" indeed were to extend  to the sub -paragraphs. It would 
read: " which it considers necessary  for the protection of its essential security interests and to relate 
to …" or "which it may consider to relate to ". 
2.14.  These documents reveal that the United States' delegation members were keenly aware of 
the important difference each phrase would have for the operation of Article XXI. The delegation 
member who proposed the "to relate to" clause intended precisely to create an "independent clause" 
that would make the sub -paragraphs equally "self -judging" as the chapeau . The other delegation 
members understood this consequence, and this is precisely why they rejected the proposal . They 
instead wished to limit the "consi der" discretion to the chapeau  and not to permit a "completely 
open escape from the Charter" (and the GATT 1947).  
 
2 Appellate Body Report, Peru – Agricultural Products , para. 5.18. Emphasis added . 
3 Appellate Body Report, Peru – Agricultural Products , para. 5.19.  
4 Appellate Body Report, EC – Bananas III (21.5 II – US), para. 217. 
5 Panel Report, Russia — Traffic in Transit , para. 7.130.  
6 Article XXI(b)(i).  
7 Article XXI(b)(iii).  
8 Panel Report, Russia — Traffic in Transit , paras. 7.82, 7.100.  WT/DS552/R/Add.1  
 
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  2.15.   These internal discussions within the United States' delegation are explained in greater detail 
in a comprehensive treatise relied on also by Russia – Traffic in Transit  panel.9 
2.16.   The United States' view is also at odds with the principle of e ffective treaty interpretation. 
Under the United States' "self -judging" approach, there is no purpose to the carefully drafted 
language of the three sub -paragraphs.10   
2.17.   The United States also gives too much credence to the views of some GATT Contra cting Parties 
that, during various GATT discussions, allegedly endorsed the self -judging nature of Article XXI. In 
Russia — Traffic in Transit , the panel found that no common position of GATT and WTO Members on 
this issue existed.11 The views cited by the  United States thus do not constitute a subsequent 
agreement within the meaning of the Vienna Convention and have no special legal relevance for the 
interpretation of Article XXI.  
2.18.   Similarly, the United States inaccurately relies on the GATT Contract ing Parties' Decision in 
the 1949 US – Export Restrictions dispute between the United States and Czechoslovakia as a 
"subsequent agreement". The subject matter of the Decision was not the interpretation  of 
Article  XXI(b), and it, therefore, cannot be an ag reement "bearing specifically" upon the 
interpretation of this provision.12 Moreover, the Decision was not taken unanimously or by 
consensus. Hence, there was no " agreement " among all Contracting Parties.  
2.19.   Finally, the United States' "self -judging" theory is also contradicted by the negotiating history. 
A consistent theme running through all the negotiating history documents is the recognition by all 
intervening delegations that some balance  had to be found between, on the one hand, some 
reasonable d iscretion to be afforded to the regulating Member, and, on the other hand, objective, 
reviewable elements to limit that discretion and prevent it from destroying the entire legal 
framework. The debate about how to strike this proper balance is discernible at all phases of the 
negotiations, both among  Members' delegations and within  the United States' delegation itself. It is 
simply not credible for the United States to argue that, after these lengthy negotiations about that 
important balance, the drafters u ltimately opted for a 100 per cent one -sided, no -questions -asked 
discretion and a completely self -judging provision.13   
2.3  Article XXI of the GATT 1994 does not apply to "economic emergencies"  
2.20.   In Turkey 's view, Article XXI does not apply to the measures at issue in these disputes. These 
measures are safeguard measures, which are instead disciplined by WTO safeguard rules.  
2.21.   Article XXI is one of many exceptions, carve -out provisions, and escape clau ses in the 
GATT  1994. Each of these exceptions, carve -outs and escape clauses addresses distinct matters . 
This is important. One of the fundamental flaws of the United States' position is to ignore the fact 
that Article XXI does not address emergency situa tions of an economic  nature. The drafters assigned 
to Article XIX economic "emergency action" in situations concerning "imports of particular products", 
and confined Article XXI to a foreign -policy dimension, in particular to diplomatic crises, military 
conflicts, and closely related matters. This was also the conclusion of the panel in Russia – Traffic in 
Transit .14 
2.22.   This distinction between the issues of foreign policy addressed in Article XXI, on the one hand, 
and "economic emergencies" addressed by WTO safeguard rules is further reflected in Article 11.1 
of the Agreement on Safeguards. This provision draws a distinction between "emergency action[s] 
on imports … as set forth in Article XIX of GATT 1994" (Article 11.1(a)), and "measures sought, 
taken or maintained by a Member pursuant to provisions of GATT 1994 other than Article XIX " 
(Article 11.1(c)). The first category, of course, encompasses safeguard measures, whereas the 
 
9 See Kenneth J. Vandevelde, The First Bilateral Investment Treaties: U.S. Postwar Friendship, 
Commerce, and Navigation Treaties , (Oxford University Press 2017), pp. 145 -154. Exhibit TUR -4. 
10 Appellate Body Report, US – Gasoline , p. 20.  
11 See Panel Report, Russia — Traffic in Transit , para. 7.80, Appendix.  
12 See, inter alia , Appellate Body Report , US – Clove Cigarettes , para. 265.   
13 See, inter alia , Second Session of the Preparatory Committee of the United Nations Conference on 
Trade and Employment, Verbatim Report, E/PC/T/A/PV/33, 24 July 1947, pp. 20 -21. 
14 Panel Report, Russia — Traffic in Transit , paras. 7.76 and 7.133.  WT/DS552/R/Add.1  
 
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  second category refers to measures other than safeguard measures, for exam ple, Article XXI 
measures.  
2.23.   This distinction is important because Article 11 ties each category to different disciplines. For 
safeguard measures, Article 11.1(a) stipulates that a Member shall not "take or seek" these 
measures, unless they conform w ith the provisions of Article XIX applied in accordance with the 
Agreement on Safeguards. In contrast, for other measures (including those protecting national 
security), Article 11.1(c) establishes "provision[s] of GATT 1994 other than Article XIX " as the legal 
benchmark of WTO consistency. It is difficult to imagine how these clearly demarcated two sets of 
disciplines could apply to a single measure. Equally, it is not clear why the drafters would distinguish 
between these two categories of measures, each subject to a separate set of disciplines, if a measure 
could in any event fall under both categories.  
2.24.   Whether a measure falls under the scope of Articles 11.1(a) or 11.1(c) must be determined 
objectively  by analysing the design, structure and expect ed operation of the measure, in particular 
whether the measure presents the constituent features of a safeguard measure within the meaning 
of Article XIX, as clarified by the Appellate Body in Indonesia – Iron or Steel Products .15 This objective 
assessmen t is required by Article 11 of the DSU.  
3  CONCLUSION  
3.1.  For the above reasons, Turkey considers that:  
• The measures at issue fall under Article XIX and the Agreement on Safeguards;  
• The Panel should begin its analysis with the claims under Article XIX and the Agreement 
on Safeguards, rather than with Article XXI;  
• In any event, the United States' defence under Article XXI should be rejected.  
 
 
 
 
15 Appellate Body Report, Indonesia — Iron or Steel Products , para. 5.60.  WT/DS552/R/Add.1  
 
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  ANNEX C -11 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE* 
1. INTRODUCTION  
 Mr. Chairperson , distinguished Members of the Panel, Ukraine welcomes the opportunity to 
express its views to the Panel as a Third Party in the current proceedings.  
 Ukraine has a syst emic interest in a proper and consistent interpretation of the provisions 
of the World Trade Organization ( "WTO") covered agreements, therefore in its oral statement 
Ukraine is not commenting on the merits of the claims and the defences raised by the parti es to this 
dispute, but rather focuses on some key issues relating to the order of analyses and application of 
Article XXI of the General Agreement on Tariffs and Trade 1994 ( "GATT 1994 "). 
2. JURISDICTIONAL ISSUES OF ARTICLE XXI OF THE GATT 1994  
 The United States in its first written submissions or oral statements does not address any 
of the claims raised by the complainants. The United States focuses only on Article XXI(b) of the 
GATT  1994 stating that it is self -judging and its invocation is non -justiciable.  
 The United States submits that the adjustment measures on imports of steel and aluminium 
constitute national security action justified under Article XXI of the GATT 1994. In the United States ' 
view, the measures at issue cannot be reviewed by th is Panel which should limit its findings to noting 
that the United States has invoked Article XXI(b) of the GATT 1994, given that Article XXI(b) is self -
judging.  
 Ukraine believes that the useful guidance for the Panel can be found in the Understanding 
on rules and procedures governing the settlement of disputes ( "DSU"). Article 7.2 of the DSU states 
that "panels shall address the relevant provisions in any covered agreement or agreements cited by 
the parties to the dispute " in order to make "an objective as sessment " of the case under Article 11 
of the DSU.  
 Ukraine is of the opinion that jurisdictional question under Article XXI of the GATT 1994 
should not be a matter of a panel 's analysis  in any further disputes . Without repetition of the findings 
in Russia – Traffic in Transit , Ukraine believes that a panel may interpret Article XXI(b) of the 
GATT  1994 and review the reliance on this provision. It means that Article XXI(b) of the GATT 1994 
is justiciable in the same manner as any other provision of the WTO c overed agreements.  
 Ukraine would like to emphasise that the Panel in Russia – Traffic in Transit  made a very 
important and welcome contribution by rejecting arguments that the panel has no jurisdiction to 
review invocation of Article XXI of the GATT 1994 and therefore by confirming that Article XXI(b)(iii) 
is within the Panel 's terms of reference for the purposes of the DSU. 1 
 There is therefore no need for a Panel to examine the issue of justiciability of 
Article  XXI(b)(iii) of the GATT 1994 not only in this particular case, but in general.  In Ukraine 's view, 
this conclusion is constant.  
3. STANDARD OF REVIEW  
 Ukraine would like to present its views on the proper order of analysis in reviewing the 
United States ' reliance on "security exceptions " provision.  
 Taking into account the special nature of "security exceptions " provision, Ukraine wishes to 
emphasize that the fact that the text of Article XXI(b) expressly states that it is for a Member to 
 
* Ukraine requested that its written submission is used as its integrated executive summary.  
1 Panel Report, Russia – Traffic in Transit , paras. 7.56 and 7.104.  WT/DS552/R/Add.1  
 
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  decide what action it considers necessary for prote cting its essential security interests does not mean 
that a Member enjoys total discretion.  
 In Ukraine 's view, a panel has to examine whether (i ) the interests or reasons advanced by 
a defendant for imposing the measures fall within the scope of the phrase "its essential security 
interests "; and whether (ii) the measures are directed at safeguarding a defendant Member 's 
security interests, meaning  that there is a rational relationship between the action taken and the 
protection of the essential security interest at issue.  
 That means that a defending Member must show and a panel must review that, taking into 
account the structure, content and design  of the measure, there is a rational relationship between 
the action taken and the protection of the essential security interest at issue.  
 Due to the exceptional features of the disputes involving the "security exceptions " 
provisions, Ukraine notes that it  is important that the Panel considers each invocation carefully, in 
light of the particular circumstances of the disputes before it.  
4. CONCLUSION  
 This concludes our oral statement. Ukraine thanks the Panel for its consideration of Ukraine's 
views.  
 
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