WT/DS544/R  
 
9 December  2022 
(22-9156) Page: 1/84 
  Original: English  
 
  
UNITED  STATES  – CERTAIN MEASURES ON STEEL AND ALUMINIUM 
PRODUCTS  
REPORT OF THE PANEL  
 
 WT/DS544/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  11 
1.1   Complaint by China ................................ ................................ ................................ .....11 
1.2   Panel establishment and composition  ................................ ................................ ............ 11 
1.3   Panel proceedings  ................................ ................................ ................................ .......12 
 General  ................................ ................................ ................................ .................. 12 
 Request for the substantive meetings of the Panel to be open to the public  ..................... 12 
 Request for enhanced third -party rights  ................................ ................................ .....12 
 Relationship with the other disputes where the same three persons act as panelists ......... 13 
 Impact of the COVID -19 pandemic on  the Panel proceedings  ................................ ........ 15 
1.3.5.1    Filing of written submissions ................................ ................................ ................... 15 
1.3.5.2    Scheduling of the second substantive meeting of the Panel with the parties  ................. 15 
1.3.5.3    Use of a virtual meeting platform for the second substantive meeting of the Panel  
with the parties  ................................ ................................ ................................ ................. 16 
1.3.5.4    Impact on coordination with the other disputes where the same three persons act as 
panelists  ................................ ................................ ................................ ........................... 17 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 18 
2.1   Section  232 and the United  States Department of Commerce reports on st eel and  
aluminium  ................................ ................................ ................................ ......................... 18 
 Section  232 ................................ ................................ ................................ ............ 18 
 The Steel Report  ................................ ................................ ................................ ......19 
2.1.2.1    Initiation and investigation process  ................................ ................................ ......... 19 
2.1.2.2    Product scope  ................................ ................................ ................................ .......20 
2.1.2.3    Findings and recommendations by the US Secretary of Commerce  .............................. 21 
 The Aluminium Report  ................................ ................................ .............................. 23 
2.1.3.1    Initiation and investigation  process  ................................ ................................ ......... 23 
2.1.3.2    Product scope  ................................ ................................ ................................ .......23 
2.1.3.3    Findings and recommendations by the US Secretary of Commerce  .............................. 24 
 Presidential Proclamations  ................................ ................................ ........................ 26 
2.2   Measures at issue  ................................ ................................ ................................ .......26 
 The "broader steel measure"  ................................ ................................ ..................... 30 
2.2.1.1    Additional import duties  ................................ ................................ ......................... 30 
2.2.1.2    Country -specific exemptions  ................................ ................................ ................... 30 
2.2.1.3    Import quotas  ................................ ................................ ................................ ......30 
2.2.1.4    Product -specific exclusion process  ................................ ................................ ........... 30 
 The "broader aluminum measure"  ................................ ................................ .............. 31 
2.2.2.1    Additional import duties  ................................ ................................ ......................... 31 
2.2.2.2    Country -specific exemptions  ................................ ................................ ................... 31 
2.2.2.3    Import quotas  ................................ ................................ ................................ ......32 
2.2.2.4    Product -specific exclusion process  ................................ ................................ ........... 32 
2.3   Measures amended, modified, or replaced after the establishment of the Panel  .................. 33 WT/DS544/R  
 
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  3   PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  ................................  33 
4   ARGUMENTS OF T HE PARTIES  ................................ ................................ ...................  34 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  34 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 34 
6.1   Article XIX of the GATT  1994 and the Agreement on Safeguards  ................................ ......35 
6.2   Article  XXI(b) of the GATT  1994 ................................ ................................ ................... 36 
6.3   Appendices  ................................ ................................ ................................ ................ 38 
7   FINDINGS  ................................ ................................ ................................ .................  38 
7.1   Mandate un der the DSU  ................................ ................................ .............................. 38 
7.2   Order of analysis  ................................ ................................ ................................ ........ 40 
7.3   Terms of reference and measures at issue  ................................ ................................ .....41 
 Introduction  ................................ ................................ ................................ ............ 41 
 Additional duties on derivative steel and aluminium products and the corresponding  
country exemptions  ................................ ................................ ................................ ............ 41 
 Conclusion  ................................ ................................ ................................ .............. 43 
7.4   Article  II:1 of the GATT  1994 ................................ ................................ ....................... 44 
 Introduction  ................................ ................................ ................................ ............ 44 
 Additional duties on steel and aluminium produ cts ................................ ....................... 45 
 Additional duty on steel products from Türkiye  ................................ ............................ 49 
 Additional duties on derivative steel and aluminium products  ................................ ........ 50 
 Conclusion  ................................ ................................ ................................ .............. 51 
7.5   Article  I:1 of the GATT  1994 ................................ ................................ ........................ 52 
 Introduction  ................................ ................................ ................................ ............ 52 
 Country exemptions for steel and aluminium products  ................................ .................. 53 
 Country exemptions for derivative steel and aluminium products  ................................ ...54 
 Conclusion  ................................ ................................ ................................ .............. 54 
7.6   Article  X:3 of the GATT  1994 ................................ ................................ ....................... 55 
7.7   Article  XIX of the GATT  1994 and the Agreement on Safeguards  ................................ ......55 
 Introduction  ................................ ................................ ................................ ............ 55 
 Interpretation of Article  XIX of the GATT  1994 and the Agreement on Safeguards in 
accordance with Article  3.2 of the DSU  ................................ ................................ ................. 56 
 Assessment of the measures at issue  ................................ ................................ ......... 63 
 Conclusion  ................................ ................................ ................................ .............. 67 
7.8   Article  XXI(b) of the GATT  1994 ................................ ................................ ................... 68 
 Introduction  ................................ ................................ ................................ ............ 68 
 Interpretation of Article  XXI(b) of the GATT  1994 in accordance with Article  3.2 of  
the DSU  ................................ ................................ ................................ ............................ 68 
 Assessment of the measures at issue  ................................ ................................ ......... 77 
 Conclusion  ................................ ................................ ................................ .............. 83 
8   CONCLUSIONS AND RECOMMENDATION  ................................ ................................ ... 83 
 
 WT/DS544/R  
 
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  LIST OF APPENDICES  
Contents  Page  
Appendix  A Materials submitted by the parties on Uruguay Round negotiations of the 
Agreement on Safeguards  4 
Appendix  B Materials submitted by the parties on the interpretation of Article  XXI(b) of the 
GATT 1994 11 
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 Revised on 19  July 2019 and 20  February  2020 10 
Annex  A-3 Additional Working Procedures of the Panel Concerning Meetings with 
Remote Participation  16 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the P eople's Republic of 
China 19 
Annex  B-2 Integrated executive summary  of the arguments of the United  States  of 
America  35 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Egypt  42 
Annex  C-2 Integrated executive summary of the arguments of the European  Union  45 
Annex  C-3 Integrated executive summary of the arguments of Hong Kong, China  50 
Annex  C-4 Integrated executive summary of the arguments of India 53 
Annex  C-5 Integrated executive summary of the arguments of Japan  56 
Annex  C-6 Integrated executive summary of the arguments of New Zealand  59 
Annex  C-7 Integrated executive summary of the arguments of Norway  62 
Annex  C-8 Integrated executive summary of the arguments of the Russian  Federation  65 
Annex  C-9 Integrated executive summary of the arguments of Singapore  71 
Annex  C-10 Integrated executive summary of the ar guments of Switzerland  76 
Annex  C-11 Integrated executive summary of the arguments of Türkiye  81 
Annex  C-12 Integrated executive summary of the arguments of Ukraine  86 
 
 
 WT/DS544/R  
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Import 
Measures  Panel Reports, Argentina – Measures Affecting the Importation of Goods , 
WT/DS438/R  and Add.1 / WT/DS444/R  and Add.1 / WT/DS445/R  and Add.1, 
adopted 26  January  2015, as modified (WT/DS438/R) and uph eld (WT/DS444/R 
/ WT/DS445/R) by Appellate Body Reports WT/DS438/AB/R / WT/DS444/AB/R 
/ WT/DS445/AB/R, DSR 2015:II, p. 783  
Argentina – Textiles and 
Apparel  Appellate  Body Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles, Apparel and Ot her Items , WT/DS56/AB/R  and Corr.1, adopted 
22 April 1998, DSR 1998:III, p. 1003  
Australia – Salmon 
(Article  21.5 – Canada)  Panel  Report , Australia – Measures Affecting Importation of Salmon – Recourse 
to Article  21.5 of the DSU by Canada , WT/DS18/RW , adopted 20  March  2000, 
DSR 2000:IV, p. 2031  
Australia – Tobacco Plain 
Packaging  Panel  Report s, Australia – Certain Measures concerning Trademarks, 
Geographical Indications and other Plain Packaging Requirements applicable to 
Tobacco Products and Packaging , WT/DS435/R , Add.1 and Suppl.1 (Honduras)  
/ WT/DS441/R , Add.1 and Suppl.1 (Dominican  Republic ) / WT/DS458/R , Add.1 
and Suppl.1 (Cuba) / WT/DS467/R , Add.1 and Suppl.1 (Indonesia) , 
WT/DS458/R  and WT/DS467/R  adopted 27  August  2018, DSR 2018:VIII, 
p. 3925, and WT/DS435/R  and WT/DS441/R  adopted 29  June 2020, as upheld 
by Appellate  Body Reports WT/DS435/AB/R / WT/DS441/AB/R, DSR 2018:VIII, 
p. 3925 
Australia – Tobacco Plain 
Packaging  Appellate  Body Reports, Australia – Certain Measures concerning Trademarks, 
Geogr aphical Indications and other Plain Packaging Requirements applicable to 
Tobacco Products and Packaging , WT/DS435/AB/R  and Add.1 (Honduras) / 
WT/DS441/AB/R  and Add.1 (Dominican  Republic ), adopted 29  June 2020 
Brazil – Desiccated Coconut  Appellate  Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adopted 20  March  1997, DSR 1997:I, p. 167  
Canada – Autos  Panel Report, Canada – Certain Measures Affecting the Automotive Industry , 
WT/DS139/R , WT/DS142/R , adopted 19  June 2000, as modified by Appellate 
Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, p. 3043  
Canada – Autos  Appellate  Body Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/AB/R , WT/DS142/AB/R , adopted 19  June 2000, 
DSR 2000:VI, p. 2985  
Canada – Periodicals  Appellate  Body Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/AB/R , adopted 30  July 1997, DSR 1997:I, p. 449  
Canada – Renewable E nergy 
/ Canada – Feed-in Tariff 
Program  Appellate  Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Measures Relating to the Feed -in Tariff 
Program , WT/DS412/AB/R  / WT/DS426/AB/R , adopted 24  May 2013, 
DSR 2013:I, p. 7  
Canada – Wheat Exports 
and Grain Imports  Appellate  Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/D S276/AB/R , adopted 27  September  2004, 
DSR 2004:VI, p. 2739  
Chile – Price Band System  Panel Report, Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products , WT/DS207/R , adopted 23  October  2002, as 
modified by Appellate Body Report WT/D S207AB/R, DSR 2002:VIII, p. 3127  
Chile – Price Band System  Appellate  Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R , adopted 
23 October  2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)  
Chile – Price Band System 
(Article  21.5 – Argentina)  Appellate  Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Recourse to Article  21.5 of the DSU 
by Argentina , WT/DS207/AB/RW , adopted 22  May 2007, DSR 2007:II, p. 513  
China – Auto Parts  Appellate  Body Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R  / WT/DS340/AB/R  / WT/DS342/AB/R , adopted 
12 January  2009, DSR 2009:I, p. 3  
Colombia – Ports of Entry  Panel  Report , Colombia – Indicative Prices and Restrictions on Ports of Entry , 
WT/DS366/R  and Corr.1, adopted 20  May 2009, DSR 2009:VI, p. 2535  
Colombia – Textiles  Appellate  Body Report, Colombia – Measures Relating to the Importation of 
Textiles, Apparel and Footwear , WT/DS461/AB/R  and Add.1, adopted 
22 June 2016, DSR 2016:III, p. 1131  
Dominican  Republic  – 
Import and Sale of 
Cigarettes  Panel  Report , Dominican  Republic  – Measures Affecting the Importation and 
Internal Sale of Cigarettes , WT/DS302/R , adopted 19  May 2005, as modified by 
Appellate  Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425  
Dominican  Republic  – 
Safeguard Measures  Panel  Report , Dominican  Republic  – Safeguard Measures on Imports of 
Polypropylene Bags and Tubular Fabric , WT/DS415/R , WT/DS416/R , 
WT/DS417/R , WT/DS418/R , and Add.1, adopted 22  February  2012, 
DSR 2012:XIII, p. 6775  WT/DS544/R  
 
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  Short Title  Full Case Title and Citation  
EC and certain member 
States – Large Civil Aircraft  Appellate  Body Report, European  Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 
1 June 2011, DSR 2011:I, p.  7 
EC – Bananas III  Panel Reports, European  Communities – Regime for the Importation, Sale and 
Distribution of Bananas , WT/DS27/R/ECU  (Ecuador)  / WT/DS27/R/GTM , 
WT/DS27/R/HND  (Guatemala and Honduras)  / WT/DS27/R/MEX  (Mexico)  / 
WT/D S27/R/USA  (US), adopted 25  September  1997, as modified by Appellate 
Body Report WT/DS27/AB/R , DSR 1997:II, p.  695 to DSR 1997:III, p.  1085 
EC – Bananas III  Appellate  Body Report, European  Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R , adopted 25  September  1997, 
DSR 1997 :II, p. 591  
EC – Bananas III 
(Article  21.5 – Ecuador  II) Panel Report, European  Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by 
Ecuador , WT/DS27/RW2/ECU , adopted 11  December  2008, as modified by 
Appellate Body Report WT/DS27/AB/RW2/ECU, DSR 2008:XVIII, p. 7329  
EC – Bananas III 
(Article  21.5 – Ecuador II) / 
EC – Bananas III 
(Artic le 21.5 – US) Appellate  Body Reports, European  Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Second Recourse to Article  21.5 of the DSU 
by Ecuador , WT/DS27/AB/RW2/ECU , adopted 11  December  2008, and Corr.1 / 
European  Communities  – Regime for the Importation, Sale and Distribution of 
Bananas – Recourse to Article  21.5 of the DSU by the United  States , 
WT/DS27/AB/RW/USA  and Corr.1, adopted 22  December  2008, 
DSR 2008:XVIII, p. 7165  
EC – Bed Linen (Article  21.5 
– India)  Appellate  Body Report, European  Communities – Anti-Dumping Duties on 
Imports of C otton-Type Bed Linen from India – Recourse to Article  21.5 of the 
DSU by India , WT/DS141/AB/RW , adopted 24  April 2003, DSR 2003:III, p. 965  
EC – Chicken Cuts  Panel  Report s, European  Communities – Customs Classification of Frozen 
Boneless Chicken Cuts , WT/DS269/R  (Brazil)  / WT/DS286/R  (Thailand) , 
adopted 27  September  2005, as modified by Appellate  Body Report 
WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XIX , p. 9295 / DSR 2005:XX, 
p. 9721 
EC – Chicken Cuts  Appellate  Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R , WT/DS286/AB/R , adopted 
27 September  2005, and Corr.1, DSR 2005:XIX, p. 9157  
EC – Computer Equipment  Appellate  Body Report, European  Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/AB/R , WT/DS67/AB/R , WT/DS68/AB/R , 
adopted 22  June 1998, DSR 1998:V, p.  1851 
EC – Export Subsidies on 
Sugar (Australia)  Panel  Report , European  Communities – Export Subsidies on Sugar, Complaint 
by Australia , WT/DS265/R , adopted 19  May 2005, as modified by 
Appellate  Body Report WT/DS265 /AB/R, WT/DS266/AB/R, WT/DS283/AB/R, 
DSR 2005:XIII, p.  6499 
EC – Fasteners (China)  Panel  Report , European  Communities – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R  and Corr.1, adopted 
28 July 2011, as modified by Appellate  Body Report WT/DS397/AB/R, 
DSR 2011:VIII, p.  4289 
EC – Fasteners (China) 
(Article  21.5 – China)  Appellate  Body Report, European  Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China – Recourse to 
Article  21.5 of the DSU by China , WT/DS397/AB/RW  and Add.1 , adopted 
12 February  2016, DSR 2016:I, p.  7 
EC – Hormones  Appellate  Body Report, European  Communities – Measures Concerning Meat 
and Meat Products (Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 
13 February  1998, DSR 1998:I, p.  135 
EC – IT Products  Panel  Report s, European  Communities and its member States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R  / 
WT/DS376/R  / WT/DS377/R , adopted 21  September  2010, DSR 2010:III, 
p. 933 
EC – Poultry  Appellate  Body Report, European  Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R , adopted 23  July 1998, 
DSR 1998:V, p.  2031 
EC – Seal Products  Panel Reports, European  Communities – Measures Prohibiting the Importation 
and Marketing of Seal Products , WT/DS400/R  and Add.1 / WT/DS401/R  and 
Add.1, adopted 18  June 2014, as modified by Appellate Body Reports 
WT/DS400/AB/R / WT/DS401/AB/R, DSR 2014:II, p.  365 
EC – Seal Products  Appellate  Body Reports, European  Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18  June 2014, DSR 2014:I, p.  7 
EC – Selected Customs 
Matters  Appellate  Body Report, European  Communities – Selected Customs Matters , 
WT/DS315/AB/R , adopted 11  December  2006, DSR 2006:IX, p.  3791 WT/DS544/R  
 
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  Short Title  Full Case Title and Citation  
India – Additional Import 
Duties  Appellate  Body Report, India – Additional and Extra -Additional Duties on 
Imports from the United  States , WT/DS360/AB/R , adopted 17  November  2008, 
DSR 2008:XX, p.  8223 
India – Agricultural Products  Panel  Report , India – Measures Concerning the Importation of Certain 
Agricultural Products , WT/DS430/R  and Add.1, adopted 19  June 2015, as 
modified by Appellate  Body Report WT/DS430/AB/R, DSR 2015:V, p.  2663 
India – Patents (US)  Appellate  Body Report, India – Patent Protection for Pharmaceutical and 
Agricultura l Chemical Products , WT/DS50/AB/R , adopted 16  January  1998, 
DSR 1998:I, p.  9 
India – Solar Cells  Panel  Report , India – Certain Measures Relating to Solar Cells and Solar 
Modules , WT/DS456/R  and Add.1, adopted 14  October  2016, as modified by 
Appellate  Body Report WT/DS456/AB/R, DSR 2016:IV, p.  1941 
Indonesia – Autos  Panel  Report , Indonesia – Certain Measures Affecting the Automobile Industry , 
WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1 and Corr.2, adopted 
23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p.  2201 
Indonesia – Chicken  Panel  Report , Indonesia – Measures Concerning the Importation of Chicken 
Meat and Chicken Products , WT/DS484/R  and Add.1, adopted 
22 November  2017, DSR 2017:VIII, p.  3769 
Indonesia – Iron or Steel 
Products  Panel  Report , Indonesia – Safeguard on Certain Iron or Steel Products , 
WT/DS490/R , WT/DS496/R , and Add.1, adopted 27  August  2018, as modified 
by Appellate  Body Report WT/DS490/AB/R, WT/DS496/AB/R, DSR 2018:VII, 
p. 3707 
Indonesia – Iron or Steel 
Products  Appellate  Body Report, Indonesia – Safeguard on Certain Iron or Steel 
Products , WT/DS490/AB/R , WT/DS496/AB/R , and Add.1, adopted 
27 August  2018, DSR 2018:VII, p.  3393 
Japan – Alcoholic Beverages 
II Appellate  Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R , 
WT/DS10/AB/R , WT/DS11/AB/R , adopted 1  November  1996, DSR 1996:I, p.  97 
Japan – Film Panel  Report , Japan – Measures Affecting Consumer Photographic Fi lm and 
Paper , WT/DS44/R , adopted 22  April 1998, DSR 1998:IV, p.  1179 
Peru – Agricultural Products  Panel  Report , Peru – Additional Duty on Imports of Certain Agricultural 
Products , WT/DS457/R  and Add.1, adopted 31  July 2015, as modified by 
Appellate  Body Report WT/DS457/AB/R, DSR 2015:VII, p.  3567 
Peru – Agricultural Products  Appellate  Body Report, Peru – Additional Duty on Imports of Certain 
Agricultura l Products , WT/DS457/AB/R  and Add.1, adopted 31  July 2015, 
DSR 2015:VI, p. 3403 
Russia – Pigs (EU)  Panel  Report , Russian  Federation  – Measures on the Importation of Live Pigs, 
Pork and Other Pig Products from the European  Union , WT/DS475/R  and Add.1, 
adopted 21  March  2017, as modified by Appellate  Body Report 
WT/DS475/AB/R, DSR 2017:II, p.  361 
Russia – Railway Equipment  Panel  Report , Russia – Measures Affecting the Importation of Railway 
Equipment and Parts Thereof , WT/DS499/R  and Add.1, adopted 5  March  2020, 
as modified by Appellate  Body Report WT/DS499/AB/R  
Russia – Tariff Treatment  Panel  Report , Russia – Tariff Treatment of Certain Agricultural and 
Manufacturing Products , WT/DS485/R , Add.1, Corr.1, and Corr.2, adopted 
26 September  2016, DSR 2016:IV, p.  1547 
Russia – Traffic in Transit  Panel  Report , Russia – Measures Concerning Traffic in Transit , WT/DS512/R  and 
Add.1, adopted 26  April 2019, DSR 2019:VIII, p. 4301  
Saudi Arabia – IPRs Panel  Report , Saudi Arabia – Measures Concerning the Protection of Int ellectual 
Property Rights , WT/DS567/R  and Add.1, circulated to Members o n 
16 June 2020, dispute terminated while appeal pending  
Thailand – Cigarettes 
(Philippines)  Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes 
from the Philippines , WT/DS371/AB/R , adopted 15  July 2011, DSR 2011:IV, 
p. 2203 
Ukraine – Ammonium 
Nitrate  Appellate  Body Report, Ukraine – Anti-Dumping Measures on Ammonium 
Nitrate , WT/DS493/AB/R  and Add.1, adopted 30  September  2019, DSR 2019:X, 
p. 5227  
US – 1916 Act  Appellate  Body Report, United  States  – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R , WT/DS162/AB/R , adopted 26  September  2000, DSR 2000:X,  
p. 4793 
US – Carbon Steel  Panel  Report , United  States  – Countervailing Duties on Certain Corrosion -
Resistant Carbon Steel Flat Products from Germany , WT/DS213/R  and Corr.1, 
adopted 19  December  2002, as modified by Appellate  Body Report 
WT/DS213/AB/R, DSR 2002:IX, p.  3833 
US – Carbon Steel  Appellate  Body Report, United  States  – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R  
and Corr.1, adopted 19  December  2002, DSR 2002:IX, p.  3779 
US – COOL  Appellate  Body Reports, United  States  – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/A B/R / WT/DS386/AB/R , adopted 
23 July 2012, DSR 2012:V, p.  2449 WT/DS544/R  
 
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  Short Title  Full Case Title and Citation  
US – COOL  (Article  21.5 – 
Canada and Mexico)  Appellate  Body Reports, United  States  – Certain Country of Origin Labelling 
(COOL) Requirements – Recourse to Article  21.5 of the DSU by Canada and 
Mexico , WT/DS384/AB/RW  / WT/DS386/AB/RW , adopted 29  May 2015, 
DSR 2015:IV, p.  1725 
US – Customs Bond 
Directive  Panel  Report , United  States  – Customs Bond Directive for Merchandise Subject 
to Anti -Dumping/Countervailing Duties , WT/DS345/R , adopted 1  August  2008, 
as modified by Appellate  Body Report WT/DS343/AB/R / WT/DS345/AB/R, 
DSR 2008:VIII, p.  2925 
US – Gasoline  Appellate  Body Report, United  States  – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R , adopt ed 20  May 1996, DSR 1996:I, p.  3 
US – Large Civil Aircraft 
(2nd complaint) 
(Article  21.5 – EU) Panel Report, United  States – Measures Affecting Trade in Large Civil Aircraft 
(Second Complaint) – Recourse to Article 21.5 of the DSU by the 
European  Union , WT/DS353/RW  and Add.1, adopted 11 April 2019, as modified 
by Appellate Body Report WT/DS 353/AB/R W, DSR 2019:V, p. 2171  
US – Line Pipe  Appellate  Body Report, United  States  – Definitive Safeguard Measures on 
Imports of Circular Welded Carbon Quality Line Pipe from Korea , 
WT/DS202/AB/R , adopted 8  March  2002, DSR 2002:IV, p.  1403 
US – Offset Act (Byrd 
Amendment)  Appellate  Body Report, United  States  – Continued Dumping and Subsidy Offset 
Act of 2000 , WT/DS217/AB/R , WT/DS234/AB/R , adopted 27  January  2003, 
DSR 2003:I, p.  375 
US – Poultry (China)  Panel  Report , United  States  – Certain Measures Affecting Imports of Poultry 
from China , WT/DS392/R , adopted 25  October  2010, DSR 2010:V, p.  1909 
US – Ripe Olives from Spain  Panel  Report , United  States  – Anti-Dumping and Countervailing Duties on Ripe 
Olives from Spain , WT/DS577/R  and Add.1, adopted 20  December  2021 
US – Section 301 Trade Act  Panel  Report , United  States  – Sections 301 -310 of the Trade Act of 1974 , 
WT/DS152/R , adopted 27  January  2000, DSR 2000:II, p.  815 
US – Shrimp  Appellate  Body Report, United  States  – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R , adopted 6  November  1998, 
DSR 1998:VII, p.  2755 
US – Softwood Lumber IV  Appellate  Body Report, United  States  – Final Countervailing Duty Determination 
with Respect to Certain Softwood Lumber from Canada , WT/DS257/AB/R , 
adopted 17  February  2004, DSR 2004:II, p.  571 
US – Stainless Steel 
(Mexi co) Appellate  Body Report, United  States  – Final Anti -Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/AB/R , adopted 20  May 2008, 
DSR 2008:II, p.  513 
US – Steel Safegua rds Appellate  Body Report, United  States  – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R , WT/DS249/AB/R , 
WT/DS251/AB/R , WT/DS252/AB/R , WT/DS253/AB/R , WT/DS254/AB/R , 
WT/DS258/AB/R , WT/DS259/AB/R , adopted 10  December  2003, DSR 2003:VII, 
p. 3117 
US – Upland Cotton  Appellate  Body Report, United  States  – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopt ed 21  March  2005, DSR 2005:I, p.  3 
US – Washing Machines  Panel Report, United  States – Anti-Dumping and Countervailing Measures on 
Large Residential Washers from Korea , WT/DS464/R  and Add.1, adopted 
26 September  2016, as modified by Appellate Body Report WT/DS464/AB/R, 
DSR 2016:V, p.  2505 
US – Zeroing (EC) 
(Article  21.5 – EC) Appellate  Body Report, United  States  – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article  21.5 of the DSU 
by the European  Communities , WT/DS294/AB/RW  and Corr.1, adopted 
11 June 2009, DSR 2009:VII, p.  2911 
US – Zeroing (Japan) 
(Article  21.5 – Japan)  Appellate Body Report, United  States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW , adopted 31  August  2009, DSR 2009:VIII, p.  3441 
 
 WT/DS544/R  
 
- 9 - 
 
  EXHIBIT S REFERRED TO IN THIS REPORT  
Panel Exhibit  Short title (if 
applicable)  Title 
CHN-1 and 
USA-1 Section 232  Trade Expansion Act, Public Law No.  87–794, 76 Stat. 877 (1962), 
United  States  Code, Title II, Section 232  
CHN-4 and 
USA-7 Steel Report  US Department of Commerce, Bureau of Industry and Security, Office of 
Technology Evaluation, The Effect of Imports of Steel on the National 
Security: An Investigation Conducted under Section 232 of the Trade 
Expansion Act of 1962, as Amended  (11 January  2018) 
CHN-5 and 
USA-8 Aluminium 
Report  US Department of Commerce, Bureau of Industry and Security, Office of 
Technology Evaluation, The Effect of Imports of Aluminum on the National 
Security, An Investigation Conducted under Section 232 of the Trade 
Expansi on Act of 1962, as Amended  (17 January  2018)  
CHN-6 and 
USA-10 Presidential 
Proclamation 
9704 Proclamation 9704 of 8  March  2018, Adjusting Imports of Aluminum Into 
the United  States , United  States  Federal Register, Vol. 83, No.  51 
(15 March 2018), p. 11619  
CHN-7 and 
USA-9 Presidential 
Proclamation 
9705 Proclamation 9705 of 8  March  2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  51 
(15 March  2018), p. 11625  
CHN-8 and 
USA-12 Presidential 
Proclamation 
9710 Proclamation 9710 of 22  March  2018, Adjusting Imports of Aluminum Into 
the United  States , United  States  Federal Register, Vol. 83, No.  60 
(28 March 2018), p. 13355   
CHN-9 and 
USA-11 Presidential 
Proclamation 
9711 Proclamation 9711 of 22  March  2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  60 
(28 March  2018), p. 13361  
CHN-10 and 
USA-14 Presidential 
Proclamation 
9739 Proclamation 9739 of 30  April 2018, Adjusting Imports of Aluminum Int o 
the United  States , United  States  Federal Register, Vol. 83, No.  88 
(7 May 2018), p. 20677  
CHN-11 and 
USA-13 Presidential 
Proclamation 
9740 Proclamation 9740 of 30  April 2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  88 
(7 May 2018), p. 20683  
CHN-12 and 
USA-16 Presidential 
Proclamation 
9758 Proclamation 9758 of 31  May 2018, Adjusting Imports of Aluminum Into 
the United  States , United  States  Federal Register, Vol. 83, No.  108 
(5 June 201 8), p. 25849  
CHN-13 and 
USA-15 Presidential 
Proclamation 
9759 Proclamation 9759 of 31  May 2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  108 
(5 June 2018), p. 25857  
CHN-15 and 
USA-19 Presidential 
Proclamation 
9776 Proclamation 9776 of 29  August  2018, Adjusting Imports of Aluminum 
Into the United  States , United  States  Federal Register, Vol. 83, No.  171 
(4 September 2018), p. 45019  
CHN-16 and 
USA-18 Presidential 
Proclamation 
9777 Procla mation 9777 of 29  August  2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  171 
(4 September 2018), p. 45025  
CHN-17 and 
USA-20 March Interim 
Final Rule  Requirements for Submissions Requesting Exclusions From the Remedies 
Instituted in Presidential Proclamations Adjusting Imports of Steel Into the 
United  States  and Adjusting Imports of Aluminum Into the United  States ; 
and the Filing of Objections to Submit ted Exclusion Requests for Steel and 
Aluminum, Interim Final Rule, United  States  Federal Register, Vol. 83, 
No. 53 (19  March  2018), p. 12106  
CHN-18 and 
USA-21 September 
Interim Final 
Rule Submissions of Exclusion Requests and Objections to Submitted Reque sts 
for Steel and Aluminum, Interim Final Rule, United  States  Federal 
Register, Vol. 83, No.  176 (11 September  2018), p. 46026  
CHN-40 and 
USA-225 Presidential 
Proclamation 
9980 Proclamation 9980 of 24  January  2020, Adjusting Imports of Derivative 
Aluminum Articles and Derivative Steel Articles Into the United  States , 
United  States  Federal Register, Vol. 85, No.  19 (29 January  2020), 
p. 5281 
CHN-14 Presidential 
Proclamation 
9772 Proclamation 9772 of 10  August  2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  158 
(15 August  2018), p. 40429  
CHN-23  Congressional Research Service, Section 232 Investigations: Overview and 
Issues for Congress  (2 April 2019)  
CHN-36  Harmonized Tariff Schedule of the United  States  (2018) Revision 4  
CHN-39  United  States  Schedule of Concessions  
CHN-47  Harmonized Tariff Schedule of the United  States  (2020) Revision 5  
CHN-48  United  States  Schedule of Concessions pertaining  to duties on derivative 
articles  
USA-2 Section 232 
regulations  United  States  Code of Federal Regulations, Title 15, Part 705  WT/DS544/R  
 
- 10 - 
 
  Panel Exhibit  Short title (if 
applicable)  Title 
USA-22  The New Shorter Oxford English Dictionary , 4th edn, L. Brown (ed.) 
(Clarendon Press, 1993)  
USA-23  Draft Articles on the Law of Treaties with commentaries, Yearbook of the 
International Law Commission, 1966, Vol. II  
USA-80  Council for Trade in Goods, Minutes of the Meeting held on 
10 November  2017, G/C/M/130  
USA-81  Council for Trade in Goods, Minutes of the Meeting held on 23 and 
26 March 2018, G/C/M/131  
USA-82  Committee on Safeguards, Communication from the United  States , 
G/SG/168  
USA-83  Statement dated 8  May 2018 of the Deputy US Trade Representative and 
US Permanent Representative to th e WTO, WTO General Council  
USA-84  Statements dated 29  October  2018, 21  November  2018, and 
4 December  2018 of the United  States , WTO Dispute Settlement Body  
USA-85  Committee on Market Access, Notification Pursuant to the Decision on 
Notification Procedures for Quantitative Restrictions (G/L/59/Rev.1), 
G/MA/QR/N/USA/4  
USA-86  The New Shorter Oxford English Dictionary , 4th edn, L. Brown (ed.) 
(Clarendon Press, 1993)  
USA-93  S. Greenbaum, English Grammar (Oxford University Press, 1996)  
USA-94  R. Flesch and A.H. Lass, The Classic Guide to Better Writing 
(HarperPerennial, 1996)  
USA-95  Merriam -Webster's Guide to Punctuation and Style  (Merriam -Webster, 
Incorporated, 1995)  
USA-96  S. Benedict (ed.), Harper's English Grammar (Harper & Row, 1966)  
USA-176  Merriam -Webster's Guide to Punctuation and Style (Merriam -Webster, 
Incorporated, 1995)  
USA-222  The New Shorter Oxford English Dictionary , 4th edn, L. Brown (ed.) 
(Clarendon Press, 1993)  
USA-226  W. Strunk Jr. and E.B. White, The Elements of Style , 4th edn (Allyn and 
Bacon, 1999)  
USA-239  G20, Global Forum on Steel Excess Capacity Report  (30 November  2017)  
USA-240  Remarks dated 18  April 2016 of C. Malmström, "Way ahead for the global 
steel industry", OECD High -Level Symposium on Steel  
USA-254  Statement of the Chair of the OECD Ministerial Council Meeting (2018)  
USA-255  Charlevoix G7 Summit Communiqué (9  June 2018)   
 
 
  WT/DS544/R  
 
- 11 - 
 
  1  INTRODUCTION  
This dispute concerns additional duties and related measures imposed by the United  States  on 
steel and aluminium products under Section  232 of the Trade Expansion Act of 1962, as amended. 
China  challenges the consistency of these measures with the United  States ' obligations under the 
General Agreement on Tariffs and Trade 1994 (GATT  1994) and the Agreement on Safeguards.  
1.1  Complaint by China  
On 5 April 2018, China  requested consultations with the United  States  pursuant to Article  4 of 
the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) , 
Article  XXII of the GATT  1994, and Article  14 of the Agreement on Safeguards  with respect to the 
measures and claims set out below.1 
Consultations were held on 19 July 2018 between China and the United  States . These 
consultations failed to resolve the dispute.2 
1.2  Panel establishment and composition  
On 18 October  2018, China  requested the establishment of a panel pursuant to Arti cles 4 and  6 
of the DSU , Article  XXIII of the GATT  1994, and Article  14 of the Agreement on Safeguards  with 
standard terms of reference.3 At its meeting on 21 November  2018, the Dispute Settlement Body 
(DSB) established a panel pursuant to China's request  in document WT/DS 544/8 , in accordance with 
Article  6 of the DSU.4 
The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by China in document 
WT/DS544/8 and to make such findings as will assist the DSB in making the 
recommendations  or in giving the rulings provided for in those agreements .5 
On 7 January  2019, China  requested the Director -General to determine the composition of the 
panel, pursuant to Article  8.7 of the DSU . On 25 January  2019, the Director -General accordingly 
compos ed the Panel as follows:  
Chairperson:  Mr Elbio Rosselli  
Members:   Mr Esteban B. Conejos, Jr  
   Mr Rodrigo Valenzuela  
The Kingdom of Bahrain; Brazil; Canada; Colombia; Egypt; the European  Union ; Guatemala; 
Hong Kong, China; Iceland; India; Indonesia; Japan;  Kazakhstan; Malaysia; Mexico; New  Zealand ; 
Norway; Qatar; the Russian  Federation ; the Kingdom of Saudi Arabia; Singapore; South  Africa ; 
Switzerland; Chinese  Taipei ; Thailand; Türkiye6; Ukraine; the United Arab Emirates7; and the 
Bolivarian Republic of Venezuela  notified their interest in participating in the Panel proceedings as 
third parties.  
 
1 See Request for consultations by China, WT/DS544/1.  
2 See Request for the establishment of a panel by China, WT/DS544/8 (China's panel request).  
3 See China's panel request.  
4 See Minutes of the DSB meeting held on 21  November  2018, WT/DSB/M/421, para.  6.5. 
5 See Note by the Secretariat, Constitution of the Panel established at the request of China, 
WT/DS544/9.  
6 Member formerly known as Turkey.  
7 On 19  July 2019, the United Arab Emirates notified the DSB and the Panel of its interest to participate 
as a third party. (See WT/DS544/9/Rev.1 ). WT/DS544/R  
 
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  1.3  Panel proceedings  
General  
The Panel held an organizational meeting with the parties on 12  March  2019.  
After consultation with the parties, the Panel adopted its Working Procedures8 and Timetable9 
on 5 April 2019. 
The Panel held a first substantive meeting with the parties on 29-30 October  2019.10 A session 
with the third parties took place on 18 November  2019. The Panel held a second substantiv e meeting 
with the parties on 11 and 25  January  2021. On 15 July 2021, the Panel issued the descriptive part 
of its Report to the parties. The Panel issued its Interim Report to the parties on 29 June 2022. The 
Panel issued its Final Report to the parties on 16 November  2022. 
Request for the substantive meetings of the Panel to be open to the public  
On 5  March  2019, the Panel received a communication from the United  States  inquiring 
whether China was willing to open the substantive meetings in the dispute to public observation and 
make its submissions to the Panel available to  the public.11 In the Panel's organizational meeting 
with the parties,  China indicated its opposition to disclosing its statements or responses to questions 
to the public .12 
The Panel transmitted its Working Procedures to the parties on 5  April 2019, which  provided 
that the Panel " shall meet in closed session ".13  
Request for enhanced third -party rights  
On 7  June 2019, the Panel received a communication from Türkiye  requesting enhanced 
third-party rights (a) to receive copies of all the parties' written sub missions, oral statements, 
rebuttals and answers to questions from the Panel and each other, through all stages of the 
 
8 The Panel's Working Procedures were revised on 19  July 2019 and 20  Febru ary 2020. See the Panel's 
Working Procedures, adopted on 5  April 2019, as revised on 19  July 2019 and 20  February  2020, in Annex  A-1. 
9 The Timetable  for the Panel proceedings was revised on 19  July 2019, 13  December  2019, and 
20 February  2020.  The Panel s ubsequently communicated with the parties directly regarding additional dates 
and deadlines in the Panel proceedings.  
10 On 14  October  2019, the Panel informed the parties that the Chairperson of the Panel would not be 
able to travel to Geneva for the first  substantive meeting due to an accident. In response to the Panel's 
invitation to provide views on the conduct of the meeting, the United  States  expressed concern that 
participation by videoconference could make the meeting less effective and queried whether the Chairperson 
would be able to participate in person with a modest delay in the timetable. After consulting the parties, the 
Panel decided  on 22  October  2019 to proceed with the participation of the Chairperson through 
videoconferencing. In its decision, the Panel noted that the prompt settlement of disputes is a key principle 
under Article  3 of the DSU and, under Article  12.2 of the DSU, pan el procedures should provide sufficient 
flexibility so as to ensure high -quality panel reports, while not unduly delaying the panel process. The Panel 
also informed the parties that several actions had been taken in order to guarantee an optimal quality of  
communication, including setting up multiple channels of communication between Geneva and Montevideo to 
maintain connectivity.  
11 United  States ' communication dated  5 March  2019.  
12 During the Panel's organizational meeting with the parties, the United  States  alternatively requested 
the Panel to partially open its substantive meetings to the public given the complainants' views in the other 
disputes in which the same three persons wer e appointed as panelists (See section 1.3.4 below ). The 
United  States  argued  in that context  that providing for a partially open hearing would serve t o facilitate the 
United  States ' right under Article  18.2 of the DSU to disclose statements of its own position. In its 
communication to the parties dated 5  April 2019, the Panel observed that nothing in the DSU provides that a 
party's right to disclose sta tements of its own positions to the public must be exercised through the holding of 
fully or partly open hearings. The Panel noted that there are other ways in which Members can make 
statements of their own position public and that by declining a party's r equest to hold partially open hearings, 
the Panel would not be depriving a Member of its rights under Article  18.2 or under any other provisions of the 
DSU. Having considered the disagreement between the parties on the United  States ' proposal, as well as t he 
parties' views on the scope of the obligation to protect confidential information in the context of a partially 
open hearing, the Panel exercised its discretion under Article  12.1 of the DSU to deny the United  States ' 
request for partially open meetings.  
13 Working Procedures of the Panel, para.  10. WT/DS544/R  
 
- 13 - 
 
  proceedings; (b) to be present for the entirety of all substantive meetings of the Panel with the 
parties; and (c) to review the draft su mmary of their own arguments in the descriptive part of the 
Panel  Report .14 On 17  June 2019 and 26  June 2019, the Panel invited the parties to comment on 
this request as well as other similar requests received from the European  Union15, Norway16, 
Switzerland17, the Russian  Federation18, and Hong Kong, China.19 In response, the United  States  
opposed the requests for enhanced rights to third parties20, whereas China supported the requests.21  
Having consulted the parties on this matter and considerin g their due process interests, the 
Panel informed the parties and third parties on 19  July 2019 that it had decided to grant certain 
enhanced third -party rights to all third parties. The Panel implemented this decision in paragraph 
30(e) of the Revised Wor king Procedures of 19  July 2019, granting third parties access to the parties' 
submissions up to and including their responses to the questions posed by the Panel following the 
first substantive meeting, as well as final versions of the oral statements mad e by the parties during 
the first substantive meeting. The Panel stated that it would address the requests for enhanced 
third-party rights in respect of further stages of the proceedings  in due course . 
After consultation with the parties, the Panel also gr anted enhanced third -party rights in 
respect of further stages of the proceedings. On 20  February  2020, the Panel amended its Working 
Procedures  to provide third parties access to the parties' second written submissions, final versions 
of oral statements m ade by the parties during the second substantive meeting, their responses to 
the Panel's questions after the second substantive meeting, and comments on those responses.  
In the interest of advancing the proceedings during the disruptions associated with t he 
COVID -19 pandemic22 and pursuant to paragraph 9 of the Panel's Working Procedures, the Panel 
sent additional questions to the parties on 26  August  2020. Based on consultations with the parties, 
the Panel decided on 8  September  2020 and 21  September  2020 that the parties' responses to the 
Panel's additional questions and comments on those responses should be made available to third 
parties.  
Due to the impact of the COVID -19 pandemic on the second substantive meeting23, the Panel 
decided, on 10  November  2020, to modify its decision of 20  February  2020 so that third parties 
would not receive further access to any statements, submissions, or exchanges from the parties, 
including statements made by the parties during the second substa ntive meeting, their responses 
to the Panel's questions after the second substantive meeting, or comments on those responses.  
Relationship with the other disputes where the same three persons act as panelists  
At the organizational meeting and at various p oints in the proceedings, the parties provided 
views regarding the relationship between this dispute and the other cases where the same three 
persons act as panelists.24 
 
14 Türkiye's  communication dated 7  June 2019, para.  11. 
15 European  Union 's communication dated 7  June 2019, para.  11. 
16 Norway's communication dated 11  June 2019, para.  3. 
17 Switzerland's communication dated 11  June 2019, para.  3. 
18 Russian  Federation 's communication dated 14  June 2019, p. 3.  
19 Hong Kong, China's communication dated 25  June 2019, p. 1.  
20 United  States ' communications dated 24  June 2019, para.  2; United  States ' communication dated 
1 July 2019, para.  2.  
21 China's communication dated 24  June 2019,  para. 2; China's communication dated 1  July 2019,  
paras. 12-13. 
22 See section 1.3.5.2  below.  
23 See section 1.3.5.4  below.  
24 The other disputes where  the same three persons  are acting as panelists  include DS547 (India), 
DS552 (Norway), DS554 (the Russian  Federation ), DS556 (Switzerland), and DS564 ( Türkiye ). Mutually 
agreed solutions were notified in DS550 (Canada) and DS551 (Mexico), where the same three persons were 
appoin ted as panelists. See United  States  – Certain Measures on Steel and Aluminium Products (Canada) , 
Notification of a Mutually Agreed Solution, WT/DS550/13, 27  May 2019 and United  States  – Certain Measures 
on Steel and Aluminium Products ( Mexico ), Notification of a Mutually Agreed Solution, WT/DS551/13, 
3 June 2019.  On 17  January  2022, the United  States  and the European  Union  jointly notified  the DSB that they 
were terminating the dispute  in DS548 ( European  Union ), where the same three persons were appointed as 
panelists . (WT/DS548/20 ). On 20  January  2022, th at panel notified the DSB that it  was in receipt of a 
 WT/DS544/R  
 
- 14 - 
 
  
China considered that these complaints relate to the same matter and Article  9.3 of th e DSU 
was therefore appli cable, noting that this was recognized in the Director -General's decision to 
appoint the same panelists to serve on all these  panels.  Accordingly, China argued  that these 
proceedings required harmonized timetables and consolidated hearings , which could significantly 
reduce the risk of unnecessary repetition and achieve important efficiencies .25 For China, the notion 
of a "harmoni zed" timetable in Article  9.3 of the DSU implies "harmoni zed", or consolidated, 
substantive meetings.26 China argued that , in previous practice , single panels were established 
under Article  9.1 of the DSU despite the absence of a complete overlap of the claims raised  and that 
"[t]his logic applies a fortiori  under Article  9.3 of the DSU."27 
The United  States  considered that a single panel had not been established in these disputes  
pursuant to Article  9.1 of the DSU, but rather, nine28 separate panels were established by the DSB 
to consider distinct matters. For the United  States , the matters are distinct because the claims and 
measures identified by each complainant are different from the other complainants. For this reason, 
the United  States  submitted that Article  9.3 of the DSU is not applicable and, even if it were, it would 
only be relevant to  the composition of the various panels and the timetables.29 In the context of 
Article  9.3 of the DSU, the United  States  argued that t o "harmonize" the timetables in these 
proceedings would mean to make them consistent or compatible and that harmonization does not 
suggest, much less require, that the Panel collapse the proceedings into a single, identical process. 
For the United  States , the disparate sets of claims and measures identified by the complainants are 
important to considerations of both efficienc y and procedural fairness.30 
The Panel notes that, at its meeting on 21  November  2018, the DSB established a panel 
pursuant to the request from China  in document WT/DS54 4/8, in accordance with Article  6 of the 
DSU.31 While the same three persons that act as panelists in this dispute were also appointed as 
panelists in other related cases32, these proceedings are not substantively identical in all respects, 
for instance, in terms of the precise measures and claims at i ssue. The Panel was also mindful of 
the logistical complexities of coordinating multiple formally distinct disputes and, before adopting its 
Timetable  and Working Procedures, consulted the parties on multiple possible alternatives for the 
conduct and confi guration of the proceedings.33 
The Panel, nonetheless, made arrangements at each stage of the proceedings to maintain 
harmonized timetables to the greatest extent possible in both the deadlines for written submissions 
and the dates for meetings across all disputes in which the same three persons act as panelists. In 
doing so, the Panel endeavoured to balance the efficient conduct of proceedings with the due process 
rights of the parties, taking into account the agreement of the parties, or lack thereof, on the 
different proposals on how to organize the proceedings. As elaborated in the next section,  the 
harmonization of timetables was, in some instances, affected by the divergent views of the 
complainants across the different disputes.34  
 
communication from the European  Union  notifying the withdrawal of its complaint , and accordingly, had ceased 
all work in those  proceedings . (WT/DS548/2 1).  
25 China's communication dated 22  February  2019.  
26 China's communication dated 1  March  2019.  
27 China's  communication dated 1  March  2019.  
28 The Panel recalls that the disputes in DS548 (European  Union ), DS550 (Canada) and DS551 (Mexico) 
were active at the time of the Panel's organizational meeting and related consultations with the parties.  
29 United  States ' communication dated 22  February  2019. 
30 United  States ' communication dated 1  March  2019.  
31 See Note by the Secretariat, Constitution of the Panel established  at the request  of China, 
WT/DS54 4/9. 
32 DS547 (India), DS552 (Norway), DS554 (the Russian  Federation ), DS556 (Switzerland), and DS564 
(Türkiye ). 
33 Panel communication to the parties dated 7  March  2019.  During the Panel's organization al meeting 
and related consultations with the parties, the Pan el specifically sought the parties' views on the optimal 
scheduling and configuration of the substantive meetings  in the disputes where the same three persons were 
appointed as panelists , particularly addressing three possible configurations for the substa ntive meetings: ( a) 
combined substantive meetings with the parties in this dispute and the other eight disputes; ( b) a "two -stage" 
approach proposed by the United  States  with a first stage devoted solely to the United  States ' arguments 
under Article  XXI of the GATT  1994; and ( c) separate meetings for each of the disputes in which the same 
panelists  had been appointed.  
34 See section 1.3.5.4  below . WT/DS544/R  
 
- 15 - 
 
  
Impact of the COVID -19 pandemic on the Panel  proceedings  
1.3.5.1   Filing of written submissions  
On 17  March  2020, in response to the COVID -19 outbreak, the Panel suspended the 
requirement to deliver paper copies of a document or submission to the other parties or the DS 
Registry unti l further notice. The Panel decided that receipt of the electronic version would be 
deemed to be full service for the purposes of the Working Procedures. After briefly reverting to 
service of hard copies of documents on 22  July 2020, the Panel informed the  parties that as of 
28 October  2020, e -filing would be deemed full service again until further notice.35 
1.3.5.2   Scheduling of the second substantive meeting of the Panel with the parties  
According to the revised Timetable adopted on 20  February  2020 after consul tation with the 
parties36, the Panel's second meeting with the parties was scheduled for 23-24 July 2020.  
On 27  May 2020, the Panel invited the parties to provide information on the travel restrictions 
that might impact the overall likelihood of holding the second meeting in person in July 2020. In 
addition, the Panel consulted the parties on possible alternative arrangements to meetings in person, 
including (a) holding the second substantive meeting through virtual participation in July 2020; (b)  
postponement of the meeting to a later date with a possibility for an exchange of written questions 
and responses in the interim; (c) adoption of written procedures as a substitute for the second 
substantive meeting; or (d) any other possible arrangement,  should it not be possible to hold the 
meeting in  person in July 2020.  
In response to the Panel's communication, both parties indicated their inability to travel to 
Geneva for the second substantive meeting in July 2020.37 China proposed an additional round of 
written briefs and/or an additional round of written answers to questions from the Panel as an 
alternative to meetings in  person,  arguing that the matter before the Panel was ripe for decision.38 
The United  States  disagreed with China's  suggestion that a written exchange could serve as an 
alternative to a second substantive meeting with contemporaneous oral exchange.39 The 
United  States  further opposed holding the meeting in a virtual format, citing consequent limitations 
on interactions  between the parties and the Panel, within the parties' respective delegations, among 
the three panelists, and between the panelists and the Secretariat.40 On this basis, the United  States  
requested that the Panel reschedule the second substantive meeting for a later date.41 After 
reviewing the parties' comments, the Panel in its communication dated 12  June 2020 decided to 
postpone the meeting, indicating that it tentatively intended to schedule the meeting between 
10 September and 20  October  2020.  
Through multiple communications sent to the parties on 22  July 2020, 31  July 2020, 
26 August  2020, 21  September  2020, 13  October  2020, and 23  October  2020, the Panel regularly 
consulted the parties on the feasibility of in -person meetings in 2020 and possible alternative 
arrangements. Both parties identified numerous potential obstacles to holding in -person meetings 
in 2020, including evolving travel and quarantine restrictions due to the pandemic . The United  States  
 
35 Panel communication to the parties dated 27  October  2020.  
36 Following its first substantive meeting with the parties, the Panel consulted the parties on various 
options for schedulin g the second substantive meeting between 22  June-31 July 2020 or 14  September -
16 October 2020, as well as an expedited timetable under which the second substantive meeting with the 
parties would be held in May 2020. While China favoured the earlier schedul ing of the meeting, the 
United  States  requested that the meeting be scheduled between 14  September  2020 and 16 October  2020, 
citing conflicting summer holiday schedules, US federal holidays, and the need for sufficient time to adequately 
prepare for the se cond substantive meeting. Based on these consultations, the Panel scheduled its second 
meeting with the parties on 23 and 24 July 2020.  
37 United  States ' communication dated 2  June 2020, paras.  2-3; China's communication dated 
2 June 2020, p. 1.  
38 China's communication dated 2  June 2020, pp. 1-2.  
39 United  States ' communication dated 2  June 2020, para.  15; United  States ' communication dated 
5 June 2020, para.  1. 
40 United  States ' communication dated 2  June 2020, paras.  9-10. 
41 United  States ' communication dated 2  June 2020, para.  11; United  States ' communication dated 
5 June 2020, para.  6.  WT/DS544/R  
 
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  maintained its preference for  in-person meetings42, whereas China suggested that in-person  
meetings could be replaced with either written exchanges or virtual meetings.43   
After it became apparent that no in -person meeting would be possible in the foreseeable 
future due to the COVID -19 pand emic, the Panel issued a decision on 10  November  2020 on the 
way forward in the proceedings. The Panel began by noting the various restrictions imposed on 
gatherings and international travel in relation to the COVID -19 pandemic, including those instituted 
by Switzerland in November 2020, and that under these circumstances, holding the second 
substantive meeting in the manner originally envisaged in the Timetable was not feasible. The Panel 
indicated its consistent efforts over the course of the dispute to m aintain a balance between the 
efficient conduct of proceedings, the parties' due process rights, and the particular preferences 
expressed by each party, including the complainant's request to keep the timetables harmonized 
across the disputes in which the same three persons act as panelists. Based on the parties' comments 
and in the interest of continuing to advance the Panel's work, the Panel decided to proceed by holding 
the second substantive meeting virtually.  
1.3.5.3   Use of a virtual meeting platform for the second substantive meeting of the Panel  
with the parties  
In its decision of 10  November  2020, the Panel noted its intention to conduct the second 
meeting through the Cisco Webex platform  and circulated draft additional working procedures 
requiring, among o ther things, that all remote participants follow the security rules contained in 
these additional working procedures as well as any additional security guidance that may be provided 
by the host . The Panel also proposed to arrange advance testing sessions w ith the parties to ensure 
their remote participation and invited comments from the parties  on the draft additional working 
procedures . 
In its comments on the draft additional working procedures, the United  States  requested that 
the Panel (a) provide all questions to the parties at least two weeks in advance; (b) refrain from 
asking additional or follow -up questions during the session; and (c) prohibit parties from 
commenting on each other's responses to the Panel' s questions during the session. The 
United  States  reasoned that health concerns prevented its delegation from gathering in  person to 
coordinate responses. The United  States  further cited technical considerations – "including the 
inability of USTR employees  to participate in a meeting via Webex from telework locations" – in 
support of its request. Finally, the United  States  requested that the Panel enable the Webex dial -in 
feature to allow individuals from its delegation to connect by phone and reflect this adjustment in 
the proposed additional working procedures.44 
 Taking note of the parties' comments, the Panel declined the United  States ' request to (a) 
refrain from asking additional or follow -up questions during the session, and (b) prohibit parties 
from commenting on each other's responses to the Panel's questions during the session. The Panel 
observed that it had decided to divide the second substantive meeting into two four -hour sessions 
with two weeks between the sessions. The Panel found that this arr angement would allow each party 
the time to confer within its delegation and respond to possible questions from the Panel or the other 
party throughout the course of the meeting. The Panel also noted that the parties would have the 
opportunity to provide f urther comments in writing in response to questions after the meeting.45  
In the Additional Working Procedures for virtual meetings, the Panel indicated that the 
meeting would be held in closed session, with remote access limited to registered participants . 
Accordingly, for security and confidentiality reasons, the Panel decided not to enable the dial -in 
feature on Webex.  
 
42 United  States ' communication dated 28  July 2020, para.  5; United  States ' communication  dated 
9 September 2020, para.  5; United  States ' com munication dated 20  October  2020, para.  1; and United  States ' 
communication  dated 4  November  2020, para.  8. 
43 China's communication dated 28  July 2020, p. 1; China's communication dated 9  September  2020; 
China's communication dated 20  October  2020, paras.  4-5; and China's communication dated 
28 October  2020.  
44 United  States ' communication dated 16  November  2020.  
45 Panel communication to the parties dated 1  December  2020.  WT/DS544/R  
 
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  1.3.5.4   Impact on coordination with the other disputes where the same three persons act 
as panelists  
As discussed in section 1.3.4 of this Report, the Panel made several arrangements at each 
stage of the proceedings to maintain harmonized timetables in all disputes where the same three 
persons are acting as panelists. However, in its communications of 13  October  2020 and 23  October 
2020, the Panel noted that the complainants across the se disputes presented diverging views on the 
way forward for the second substantive meeting in light of the COVID -19 pandemic.  The Panel 
indicated to the parties that this divergence was difficult to reconcile with China's  initial request to 
maintain harmonized timetables in all disputes. Accordingly, the Panel sought the parties' views on 
the feasibility of maintaining such harm onization going forward. The Panel also invited the parties' 
comments on the implications of the differences among the complainants in these disputes on 
enhanced third -party rights, and in particular on access to written submissions and responses to 
Panel questions, if the Panel determined that it was not viable to maintain harmonized timetables.  
China argued that the requirement of harmonization of timetables under Article  9.3 of the 
DSU applies to the present proceedings. China further argued that to resolve these disputes in a 
prompt and harmonized fashion, the Panel should exercise its authority under Article  12.1 of the 
DSU to devise a common solution for the second substantive meetin gs in all disputes where the 
same three persons are acting as panelists, even if certain parties preferred a different solution . 
China observed that a common solution to the organization  of the second substantive meeting would 
facilitate the exercise of the enhanced  third-party rights granted by the Panel.46 
The United  States  objected to proceeding differently across the disputes in which the same 
three persons serve as panelists, arguing that doing so would provide a strategic benefit to the 
complainants t o the disadvantage of the United  States .47 Moreover, the United  States  observed that 
should the Panel move forward with different formats and different timetables across these disputes, 
the United  States  would no longer agree to open any of the proceedings  to public viewing.48 The 
United  States  reasoned that complainants participating in later meetings would have an opportunity 
to view the earlier open meetings and adjust their statements and arguments accordingly.49 For 
similar reasons, the United  States  also requested that the Panel rescind its decision on enhanced 
third-party rights in the event it acceded to the complainants' diverging requests, arguing that such 
enhanced rights would serve to unfairly advantage those third parties that are also parties in their 
own disputes.50  
The Panel provided its decision on the second substantive meeting to the parties on 
10 November  2020, where it noted that Article  9.3 of the DSU provides for harmonizing timetables 
to the "greatest extent possible". The Panel obse rved that the compatibility of positions taken by 
parties across disputes, or lack thereof, was a significant factor in assessing the possibility of 
harmonizing timetables. In particular, the Panel considered that the harmonization of timetables 
would not compel the adoption of alternative meeting procedures by virtual means even in those 
disputes where both the complainant and the respondent had expressed a preference to wait until 
in-person meetings were possible. In this light, the Panel concluded that i f the divergent positions 
of the parties across the disputes resulted in certain meetings being held at a later date, it would no 
longer be possible to harmonize the timetables across the disputes. The Panel further noted that if 
the timetables across the disputes were not harmonized, the rights of third parties for subsequent 
stages in the disputes would be as provided for in Article  10 of the DSU, and the Panel would not 
grant third parties further access to any statements, submissions, or exchanges from the parties in 
each dispute.  
Based on the foregoing, the Panel scheduled its second substantive meeting with the parties 
in this dispute for 11 and 25  January  2021. Rights of third parties for subsequent stages in the 
disputes were limited to those provid ed in Article  10 of the DSU.  
 
46 China's communication dated 20  October  2020.  
47 United  States ' communication d ated 20  October  2020, para.  2. 
48 United  States ' communication dated 4  November  2020, para.  6. 
49 United  States ' communication dated 20  October  2020, para.  5. 
50 United  States ' communication dated 4  November  2020, para.  6. WT/DS544/R  
 
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  2  FACTUAL ASPECTS  
2.1  Section  232 and the United  States  Department of Commerce reports on steel and 
aluminium  
This section  provides the legislative and regulatory background of the measures at issue in this 
dispute and, in particular, of:  
a. Section  232 of the Trade Expansion Act of 1962, as amended ( United  States  Code, Title 
19, Section  1862) (Section  232)51 and its implementing regulation, United  States  Code of 
Federal Regulation s, Title 15, Part 70552; 
b. "The Effect of Imports  of Steel on the National Security: An Investigation Conducted Under 
Section 232 of the Trade Expansion Act of 1962, As Amended", United  States  Department 
of Commerce  Report , 11 January  2018 (Steel Report)53; and  
c. "The Effects of Imports of Aluminum on the National Security: An Investigation Conducted 
Under Section 232 of the Trade Expansion Act of 1962, As Amended", United  States  
Department of Commerce  Report, 17  January  2018 ( Aluminium Report ).54 
Section  232  
Pursuant to Section  232, upon request of the head of any department or agency, upon 
application of an interested party, or upon his own motion, the United  States  (US) Secretary of 
Commerce shall immediately initiate an appropriate investigation to determine the effects on the  
national security of imports of the article which is the subject of such request, application, or 
motion.55 The US Secretary of Commerce shall also immediately provide notice to the US Secretary 
of Defense of any such investigation, and shall consult with  the Secretary of Defense regarding the 
methodological and policy questions raised in such investigation.56 
Section  232 further provides that no later than 270 days after an investigation is initiated with 
respect to any article, the US Secretary of Commer ce shall submit to the US President a report on 
the findings of the investigation with respect to the effect of the importation of such article in such 
quantities or under such circumstances upon the national security . Section  232 directs the US 
Secretary of Commerce to make recommendations for action or inaction  based on such findings. If 
the US Secretary of Commerce finds that such article is being imported into the United  States  in 
such quantities or under such circumstances as to threaten to impair the national security, the 
Secretary shall so advise the US President in such report.57 
Within 90 days of receiving such report, the US President shall: (a) determine whether the 
President concurs with the finding of the Secretary; and (b) if the President con curs, determine the 
nature and duration of the action that, in the judgment of the President, must be taken to adjust 
imports of the article and its derivatives so that such imports will not threaten to impair national 
security.58 If the US President deter mines to take action to adjust imports of the article and its 
derivatives, the US President shall implement such action within 15 days.59 Further, the action taken 
by the US President may be the negotiation of an agreement which limits or restricts importa tion 
into, or exportation to, the United  States  of the article that threatens to impair US national security, 
or such other actions as the US President deems necessary to adjust the imports of the article so 
that the imports will not threaten to impair US national security.60 
 
51 Section 232, (Exhibit CHN -1 and USA-1). 
52 Section 232 regulations, ( Exhibit USA-2). 
53 Steel Report, ( Exhibit CHN -4 and USA-7). 
54 Aluminium Report, ( Exhibit CHN -5 and USA-8). 
55 Section 232, (Exhibit CHN -1 and USA -1), § 1862(b)(1)(A).  
56 Section 232, (Exhibit CHN -1 and USA -1), §§ 1862(b)(1) (B) and (b)(2)(A).  
57 Section 232, (Exhibit CHN -1 and USA -1), § 1862(b)(3)(A) . 
58 Section 232, (Exhibit CHN -1 and USA -1), § 1862(c)(1)(A).   
59 Section 232, (Exhibit CHN -1 and USA -1), § 1862(c)(1)(B).  
60 Section 232, (Exhibit CHN -1 and USA -1), § 1862(c)(3)(A).  WT/DS544/R  
 
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Section  232 also sets out factors that should be analy sed when conducting an investigation to 
determine the effects of imports of a product  on the national security. In particular, it provides that 
the US Secretary of Commerce and the US President shall, in light of the requirements of national 
security and without excluding other relevant factors, give consideration to:   
a. domestic production needed for projected national defen ce requirements;  
b. the capacity of domestic industries to meet such requirements;  
c. existing and anticipated availabilities of the human resources, products, raw materials, 
and other supplies and services essential to the national defen ce; 
d. the requirements of growth of such industries and such supplies and services including the 
investment, exploration, and development necessary to assure such growth; and  
e. the importation of goods in terms of their quantities, availabilities, character, and use as 
those affect such industries and the capacity of the United  States to meet national security 
requirements.61  
In addition to these factors, Section  232 provides that in the administration of this section, the 
US Secretary of Commerce and the US President shall further recognize the close relation of the 
economic welfare of the United  States  to its national security, and shall take into consideration:  
a. the impact of foreign competition on the economic welfare of individual domestic 
industries; and  
b. any substantial unemployment, decrease in revenues of government, loss of skills or 
investment, or other serious effects resulting from the displacement of any  domestic 
products by excessive imports.62 
Additional regulations in the United  States  Code of Federal Regulation s, Title 15, Part 705  set 
out the procedures according to which the  US Department of Commerce  shall commence and 
conduct its investigation to d etermine the effect on the national security of the imports of any article, 
as well as issue the report and recommendation to the President of the United  States  for action or 
inaction regarding an adjustment of the imports of the article (s) in question.63 
The Steel Report  
The Steel Report of 11  January  2018 summarizes the findings of an investigation conducted by 
the US Department of Commerce pursuant to Section  232 into the effect of imports of steel mill 
products on the national security of the United  States. 
2.1.2.1   Initiation and investigation process  
On 19  April 2017, the US Secretary of Commerce initiated an investigation to determine the 
effect of imported steel on national security under Section  232. The US Department of Commerce 
notified the US Department of Defense of the investigation in  a letter dated 19  April 2017.64 On 
20 April 2017, the US President signed a Presidential Memorandum directing the US Secretary of 
Commerce to proceed expeditio usly in conducting his investigation and submit a report on his 
findings to the President.65 On 21  April 2017, the US Department of Commerce published in the 
Federal Register a notice about the initiation of the investigation. The notice also announced the  
opening of the public comment period as well as a public hearing to be held on 24  May 2017.66 The 
 
61 Section 232, (Exhibit CHN -1 and USA -1), § 1862(d).  
62 Section 232, (Exhibit CHN -1 and USA -1), § 1862(d).  
63 Section 232 regulations, ( Exhibit USA-2), §§ 705.1 -705.12.  
64 Steel Report, (Exhibit CHN -4 and USA -7), p. 18.  
65 Steel Report, (Exhibit  CHN-4 and USA -7), p. 18.  
66 Steel Report, (Exhibit CHN -4 and USA -7), p. 18.  WT/DS544/R  
 
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  US Department of Commerce held a public hearing to elicit further information concerning the 
investigation in Washington, D.C., on 24  May 2017.67 
In addition  to the notification provided by its 19  April 2017 letter to the US Department of 
Defense, the US Department of Commerce carried out consultations with the US Department of 
Defense regarding methodological and policy questions that arose during the investi gation. 
According to the Steel Report, discussions were held with the US Army Materiel Command, the 
Defense Logistics Agency, the US Navy/Naval Air Systems Command, and the Under Secretary of 
Defense for Acquisitions & Logistics, Manufacturing , and Industr ial Base Policy. Discussions were 
also held with "appropriate officers of the United  States ", including the US Department of State, 
Department of the Treasury, Department of the Interior/US Geological Survey, the Department of 
Homeland Security/US Customs and Border Protection, the International Trade Commission, and the 
Office of the United  States  Trade Representative.68 
2.1.2.2   Product scope  
The Steel Report describes  its product coverage as steel mill products which are defined at 
the Harmonized System 6 -digit level as: 720610 through 721650, 721699 through 730110, 730210, 
730240 through 730290, and 730410 through 730690, including any subsequent revisions to these 
HS codes.69 Generally, these products fall into five categories:  
a. Carbon and Alloy Flat Products (Flat Products): Steel products produced by rolling semi -
finished  steel through varying sets of rolls. This category includes sheets, strips, and 
plates.70 
b. Carbon  and Alloy Long Products (Long Products): Steel products that fall outside the flat 
products category. This category includes bars, rails, rods, and beams.71 
c. Carbon and Alloy Pipe and Tube Products (Pipe and Tube Products): Either seamless or 
welded pipe and tube products. Some of these products may include stainless as well as 
alloys other than stainless.72 
d. Carbon and Alloy Semi -finished Products (Semi -finished Products): The initial, 
intermediate solid forms of molten steel, to be re -heated and furt her forged, rolled, 
shaped, or otherwise worked into finished steel products. This category includes blooms, 
billets, slabs, ingots, and steel for castings.73 
 
67 Steel Report, (Exhibit CHN -4 and USA -7), p. 18.  
68 Steel Report, (Exhibit CHN -4 and USA -7), pp. 19-20. 
69 Steel Report, (Exhibit CHN -4 and USA -7), p. 21.  
70 Flat products are covered under the following 6 -digit HS codes: 720810, 720825, 720826, 720827, 
720836, 720837, 720838, 720839, 720840, 720851, 720852, 720853, 720854, 720890, 720915, 720916, 
720917, 720918, 720925, 720926, 720927, 720928, 720990, 721011,  721012, 721020, 721030, 721041, 
721049, 721050, 721061, 721069, 721070, 721090, 721113, 721114, 721119, 721123, 721129, 721190, 
721210, 721220, 721230, 721240, 721250, 721260, 722511, 722519, 722530, 722540, 722550, 722591, 
722592, 722599, 722611, 722619,  722691, 722692, 722693, 722694, 722699. (Steel Report, (Exhibit CHN -4 
and USA-7), p. 21 ). 
71 Long products are covered under the following 6 -digit HS codes: 721310, 721320, 721391, 721399, 
721410, 721420, 721430, 721491, 721499, 721510, 721550,721590, 7216 10, 721621, 721622, 721631, 
721632, 721633, 721640, 721650, 721699, 721710, 721720, 721730, 721790, 722520, 722620,722710, 
722720, 722790, 722810, 722820, 722830, 722840, 722850, 722860, 722870, 722880, 722910,722920, 
722990, 730110, 730210, 730240, 730290 . (Steel Report, (Exhibit CHN -4 and USA-7), pp. 21-22). 
72 Pipe and Tube products are covered under the following 6 -digit HS codes: 730410, 730419, 730421, 
730423, 730429, 730431, 730439, 730451, 730459, 730490, 730511, 730512, 730519, 730520, 730531, 
73053 9, 730590, 730610, 730619, 730620, 730629, 730630, 730650, 730660, 730661, 730669, 730690. 
(Steel Report, (Exhibit CHN -4 and USA-7), p. 22 ). 
73 Semi-finished products are covered under the following 6 -digit HS codes: 720610, 720690, 720711, 
720712, 720719, 720720, 722410, 722490.  (Steel Report, (Exhibit CHN -4 and USA-7), p. 22 ). WT/DS544/R  
 
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  e. Stainless Products: Steel products, in flat -rolled, long, pipe and tube, and semi -finished 
forms,  containing at minimum 10.5 % chromium and, by weight, 1.2 % or less of carbon, 
offering better corrosion resistance than other steel.74 
2.1.2.3   Findings and recommendations by the US Secretary of Commerce  
The Steel Report refers to the nonexclusive lists of factor s in Section  232 and its implementing 
regulations that the US Department of Commerce must consider in evaluating the effect of imports 
on the national security.75 The Steel Report further refers to a determination by the US Department 
of Commerce in 2001 t hat (a) national defen ce includes both defen ce of the United  States  directly 
and its ability to project military capabilities globally, and (b) the term "national security" can be 
interpreted more broadly to include the general security and welfare of cert ain industries, beyond 
those necessary to satisfy national defen ce requirements that are critical to the minimum operations 
of the economy and government.76 
In the Steel Report, the US Secretary of Commerce determined that the displacement of 
domestic stee l by excessive imports and the consequent adverse impact of those quantities of steel 
imports on the economic welfare of the domestic steel industry, along with the circumstance of 
global excess capacity in steel, were "weakening our internal economy" and therefore "threaten to 
impair" US national security as defined in Section  232.77 According to the Steel Report, the continued 
rising levels of imports of foreign steel threaten to impair the national security by placing the US 
steel industry at substantial  risk of displacing the basic oxygen furnace and other steelmaking 
capacity, and the related supply chain needed to produce steel for critical infrastructure and national 
defen ce.78 The Steel Report refers to global excess steel capacity as a circumstance that contributes 
to the "weakening of [the US] internal economy" that "threaten[s] to impair" US national security 
as defined in Section  232.79  
In arriving at this general conclusion, the Steel Report relied on four main overarching 
findings, which in tur n, comprise several  intermediate findings:  
a. Steel is important to US national security because80: (i) steel is needed for national 
defen ce requirements81; (ii) steel is required for US critical infrastructure82; (iii) domestic 
steel production is essential for national security83; (iv) domestic steel production depends 
on a healthy and competitive US industry84; and (v)  steel is consumed in critical 
industries .85 
b. Imports in such quantities as are presently found adversely impact the economic welfar e 
of the US steel industry due to86: (i) continued increase  in imports of steel products87; 
(ii) high import penetration88; (iii)  high import to export ratio89; (iv)  prevailing steel 
 
74 Stainless steel products are covered under the following 6 -digit HS codes: 721810, 721891, 721899, 
721911, 721912, 721913, 721914, 721921, 721922, 721923, 721924, 721931, 721932, 7 21933, 721934, 
721935, 721990, 722011, 722012, 722020, 722090, 722100, 722211, 722219, 722220, 722230, 722240, 
722300, 730411, 730422, 730424, 730441, 730449, 730611, 730621, 730640. (Steel Report, (Exhibit CHN-4 
and USA-7), p. 22 ). 
75 Steel Report, (Exhibi t CHN -4 and USA -7), p. 13.  
76 Steel Report, (Exhibit CHN -4 and USA -7), p. 13 (referring to Department of Commerce, Bureau of 
Export Administration: The Effect of Imports of Iron Ore and Semi -Finished  Steel on the National Security, 
October 2001) . The Steel Report further clarifies that it uses the more recent 16 critical infrastructure sectors 
identified in Presidential Policy Directive 21 instead of the 28 critical industry sectors used by the Bureau of 
Export  Administration in the 2001 Report . (Ibid. p. 14).  
77 Steel Report, (Exhibit CHN -4 and USA -7), p. 55.  
78 Steel Report, (Exhibit CHN -4 and USA -7), p. 55.  
79 Steel Report, (Exhibit CHN -4 and USA -7), p. 55.  
80 Steel Report, (Exhibit CHN -4 and USA -7), p. 23.  
81 Steel Report, (Exhibit CHN -4 and USA -7), p. 23.  
82 Steel Report, (Exhibit CHN -4 and USA -7), pp. 23-24. 
83 Steel Report, (Exhibit CHN -4 and USA -7), pp. 24-25. 
84 Steel Report, (Exhibit CHN -4 and USA -7), p. 25.  
85 Steel Report, (Exhibit CHN -4 and USA -7), p. 25.  
86 Steel Report, (Exhibit CHN -4 and USA-7), p. 27.  
87 Steel Report, (Exhibit CHN -4 and USA -7), p. 27.  
88 Steel Report, (Exhibit CHN -4 and USA -7), p. 29.  
89 Steel Report, (Exhibit CHN -4 and USA -7), p. 30.  WT/DS544/R  
 
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  prices90; (v) steel mill closures91; (vi) declining employment trend since 199892; (vii) trade 
actions such as anti -dumping  and countervailing duties93; (viii) loss of domestic 
opportunities to bidders using imported steel94; (ix) financial distress95; and (x) limited 
capital expenditures arising from falling revenue and reduce d profits.96 
c. Displacement of domestic steel by excessive quantities of imports has the serious effect 
of weakening the US internal economy because97: (i) domestic steel production capacity 
is stagnant and concentrated98; (ii) production is well below  demand99; (iii)  utilization 
rates are well below economically viable levels100; and (iv)  declining steel production 
facilities limits capacity available for a national emergency.101  
d. Global excess steel capacity is a circumstance that contributes to the wea kening of the 
domestic economy because102: (i) free markets globally are adversely affected by 
substantial chronic global excess steel production led by China103; and (ii)  increasing global 
excess steel capacity will further weaken the internal economy as US  steel producers will 
face increasing import competition.104 
In the  Steel Report , the US Secretary of Commerce  recommends, due to the threat of steel 
imports to US national security, that the US President take immediate action by adjusting the level 
of imports through quotas or tariffs on steel imported into the United  States , as well as direct 
additional actions to keep the US steel industry financially viable and able to meet US national 
security needs. The Steel Report states that the quota or tariff imposed should be sufficient, after 
accounting for any exclusions, to enable the US steel producers to be able to operate at about 80% 
or better of the industry's capacity utilization rate ba sed on available capacity in 2017.105 
In particular, the Steel Report recommends the following two alternative courses of action:  
a. Global quota or tariff: The Steel Report recommends that this should be done by 
(i) imposing  a quota of 63% of the 2017 import level on all imported steel products, 
applied on a country and steel product basis, or (ii) applying  a 24% tariff on all imported 
steel products, in addition to any anti -dumping  or countervailing duty collections applicable 
to any imported steel product.106 
b. Tariff on a subset of countries: The Steel Report alternatively recommends applying  a 53% 
tariff on all imported steel products from Brazil, the Republic of Korea, the 
Russia n Federation , Türkiye , India, Viet  Nam, China, Thailand, South  Africa , Egypt, 
Malaysia, and Costa Rica, in addition to any anti -dumping  or countervailing duty collections 
applicable to any steel products from these  countries. All other countries would be limited 
to 100% of their 2017 import level.107 
The Steel Report further states that , in selecting an alternative, the US President could 
determine that specific countries should be exempted from the proposed 63% quota or 24% tariff 
by granting those specific countries 100% of their prior imports in 2017, based on an overriding 
economic o r security interest of the United  States .108 The Steel Report also recommends an appeal 
 
90 Steel Report, (Exhibit CHN -4 and USA -7), pp. 31-32. 
91 Steel Report, (Exhibit CHN -4 and US A-7), p. 33.  
92 Steel Report, (Exhibit CHN -4 and USA -7), p. 35.  
93 Steel Report, (Exhibit CHN -4 and USA -7), p. 36.  
94 Steel Report, (Exhibit CHN -4 and USA -7), p. 36.  
95 Steel Report, (Exhibit CHN -4 and USA -7), p. 37.  
96 Steel Report, (Exhibit CHN -4 and USA-7), p. 40.  
97 Steel Report, (Exhibit CHN -4 and USA -7), p. 41.  
98 Steel Report, (Exhibit CHN -4 and USA -7), p. 41.  
99 Steel Report, (Exhibit CHN -4 and USA -7), p. 46.  
100 Steel Report, (Exhibit CHN -4 and USA -7), p. 47.  
101 Steel Report, (Exhibit CHN -4 and USA -7), p. 49.  
102 Steel Report, (Exhibit CHN -4 and USA -7), p. 51.  
103 Steel Report, (Exhibit CHN -4 and USA -7), p. 51.  
104 Steel Report, (Exhibit CHN -4 and USA -7), p. 53.  
105 Steel Report, (Exhibit CHN -4 and USA -7), p. 58.  
106 Steel Report, (Exhibit CHN -4 and USA -7), pp. 59-60. 
107 Steel Report, (Exhibit CHN -4 and USA -7), p. 60.  
108 Steel Report, (Exhibit CHN -4 and USA -7), p. 60.  WT/DS544/R  
 
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  process by which affected US parties could seek an exclusion from the tariff or quota imposed and 
notes that  the US Secretary of Commerce would grant such exclusions bas ed on demonstrating (a) 
lack of sufficient US production capacity of comparable products or (b) specific national security 
based considerations.109 
The Aluminium Report  
The Aluminium Report  of 17  January  2018 summarizes the findings of an investigation 
conducted by the US Department of Commerce pursuant to Section  232 into the effect of imports of 
alumin ium products on the national security of the United  States . 
2.1.3.1   Initiation and investigation  process  
On 26 April 2017, the US Secretary of Comm erce initiated an investigation to determine the 
effect of imported alumin ium on national security under Section  232.110 The US Department of 
Commerce notified the US Department of Defense  of the investigation  in a letter dated 
26 April 2017.111 On 27  April 2017, the US President signed a Presidential Memorandum directing 
the US Secretary of Commerce to proceed expeditiously in conducting his investigation and submit 
a report on his findings to the President.112 On 3 May 2017, the US Department of Commerce inv ited 
interested parties to submit written comments, opinions, data, information, or advice.113 The US 
Department of Commerce held a public hearing to elicit further information concerning this 
investigation in Washington, D.C. , on 22  June 2017.114 
In addition to the notification to the US Department of Defense  on 26  April 2017, the US 
Department of Commerce consulted with the US Department of Defense regarding methodological 
and policy questions that arose  during the investigation  and also consulted wi th other agencies of 
the US Government with expertise and information regarding the aluminium industry, including the 
US Geological Survey of the Department of the Interior and the US International Trade 
Commission.115 
2.1.3.2   Product scope  
The Aluminium Report  sets out its product scope in the following table:  
Table  1: Harmonized Tariff Schedule for Aluminum Products116 
Harmonized Tariff Schedule for Aluminum Products  
HTS Code  Description  
7601 Unwrought aluminum  
7604 Aluminum  bars, rods and profiles  
7605 Aluminum wire  
7606 Aluminum plates, sheets, and strip, of a thickness exceeding 0.2  mm* 
7607 Aluminum  foil (whether or not printed, or backed with paper, paperboard, plastics or 
similar backing materials) of a thickness (excluding any backing) not exceeding 0.2  mm 
7608 Aluminum tubes and pipes  
7609 Aluminum tube and pipe fittings  
7616.99.51.60  Other ar ticles of aluminum: castings  
7616.99.51.70  Other articles of aluminum: forgings  
*Note: This category includes can sheet for aluminum can packaging  
 
109 Steel Report, (Exhibit CHN -4 and USA -7), p. 61.  
110 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 18.  
111 Aluminium Report, (Exhibit CHN -5 and US A-8), p. 18.  
112 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 18.  
113 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 19.  
114 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 19.  
115 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 19.  
116 Aluminium Report, (Exhibi t CHN -5 and USA -8), p. 20.  WT/DS544/R  
 
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  2.1.3.3   Findings and recommendations by the US Secretary of Commerce  
The Aluminium Report  refers to the  nonexclusive lists of factors  in Section  232 and its 
implementing regulations  that the US Secretary of Commerce  must consider in evaluating the effect 
of imports on national security.117 The Aluminium Report  further refers to a determination by the US 
Department of Commerce in 2001 that (a) national defen ce includes both defen ce of the 
United  States  directly and its ability to project military capabilities globally, and (b) the term 
"national security" can be  interpreted more broadly to include the general security and welfare of 
certain industries, beyond those necessary to satisfy national defen ce requirements that are critical 
to the minimum operations of the economy and government .118 
In the Aluminium Repor t, the US Secretary of Commerce determined  that the present 
quantities and circumstance of alumin ium imports were "weakening our internal economy" and 
"threaten to impair the national security as defined in Section  232".119 According to the Aluminium 
Report , the continued rise in levels of imports of foreign alumin ium threatens to impair US national 
security by placing the US alumin ium industry at substantial risk of losing the capacity to produce 
alumin ium and alumin ium products needed to support critical infrastructure and national defen ce.120 
The Aluminium Report  refers to excess production and capacity in China as a major factor 
contributing to the decline in US domestic alumin ium production and loss of domestic production 
capacity.121  
In arriving at this general conclusion , the Aluminium Report  relies on findings including : 
a. Aluminium  is essential to US national security because122: (i) alumin ium is required for US 
national defen ce123; and (ii)  alumin ium is required for US critical infrastructure .124 
b. Domestic  production of alumin ium is essential to national security .125 
c. Domestic  alumin ium production capacity  is declining  because126: (i) the United  States  is a 
relatively high -cost producer127; and (ii)  alumin ium smelters are permanently shutting 
down .128 
d. Domestic  production is well below demand .129 
e. US imports of alumin ium are increasing  in aggregate130 and in particular , imports  of 
(i) unwrought aluminium131; (ii) aluminium  bars, rods and profiles132; (iii)  aluminium  
 
117 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 12.  
118 Aluminium Report, (Exhibit CHN -5 and USA -8), pp. 12-13 (referring to Department of Commerce, 
Bureau of Export Administration: The Effect of Imports of Iron Ore and Semi-Finished Steel on the National 
Security, October 2001). The Alumin ium Report further clarifies that while it uses these interpretations of 
"national defen se" and "national security", it refers to the more recent 16 critical infrastructure sectors 
identified in Presidential Policy Directive 21 instead of the 28 critical industry sectors used by the Bureau of 
Export Administration in the 2001 Report . (Ibid. p. 13) . 
119 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 104.  
120 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 104.  
121 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 104.  
122 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 23.  
123 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 24.  
124 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 36.  
125 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 39.  
126 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 40.  
127 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 41.  
128 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 48.  
129 Aluminium Report, (Exhibit CHN -5 and USA-8), p. 59. 
130 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 63.  
131 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 70.  
132 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 71.  WT/DS544/R  
 
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  plate, sheet and strip133; (iv) aluminium  foil134; (v) aluminium  pipes and tubes135; and (vi) 
aluminium  castings and forgings.136 
f. US aluminium  exports are declining.137 
g. The United  States ' import to export ratio  for the aluminium  product categories subject to 
this investigation is high.138 
h. Aluminium  imports are impacting  the welfare of the US alumin ium industry  because :139 
(i) employment  in the aluminium  industry is declining  as several smelters were either 
permanently shut down  or temporarily idled140; (ii) the financial status of the US 
alumin ium industry  is poor141; (iii) research and development expenditures are falling142; 
(iv) capital expenditures for the aluminium  industry are increasing143; and (v)  aluminium  
prices have dropped sharply.144 
In the Aluminium Report , the US Secretary of Commerce recommends, due to the threat of 
aluminium imports to US national security, that the US  President take immediate action by adjusting 
the level of these imports.145 The recommended  adjustments would be imposed on imports of: 
(i) unwrought aluminium (Harmonized Tariff Schedule (HTS) Code 7601); (ii)  aluminium castings 
and forgings (HTS Codes 76 16.99.51.60 and 7616.99.51.70); (iii)  aluminium plate, sheet, strip, and 
foil (flat -rolled products) (HTS Codes 7606 and 7607); (iv)  aluminium wire (HTS Code 7605); 
(v) alumin ium bars, rods and profiles (HTS Code 7604); (vi) aluminium tubes and pipes ( HTS Code 
7608); and (vii) aluminium tube and pipe fittings (HTS Code 7609) based on 2017 annualized 
imports in those categories. The Aluminium Report  states that the recommended quotas or tariffs 
would be designed, even after any exemptions (if granted), t o enable US aluminium producers to 
utilize an average of 80% of their production capacity.146  
In particular, the Aluminium Report  recommends the following two alternative courses of 
action:  
a. Global quota o r tariff:  The Aluminium Report  recommends that action should be taken  by 
imposing on unwrought aluminium and the other aluminium product categories  (i) a quota 
of 86.7% or (ii)  a tariff rate of 7.7 % in addition to any anti -dumping  or countervailing duty 
collections applicable to such product s.147 
b. Tariff on a subset of countries:  The Aluminium Report  alternatively  recommends applying 
a 23.6% tariff on all imported aluminium products from China ; Hong Kong,  China;  the 
Russian  Federation ; Venezuela ; and Viet  Nam; in addition to anti -dumping  or 
countervailing  duty collections applicable to aluminium  products from these countries. All 
other countries would be limited to 100% of their 2017 import volumes .148  
The Aluminium Report  further states that, in selecting an alternative, the US President could 
determine t hat specific countries should be exempted from the proposed quota by granting those 
specific countries 100% of their prior imports in 2017 or exempting them entirely, based on an 
overriding economic or security interest of the United  States , which could in clude their willingness 
to work with the United  States  to address global excess capacity and other challenges facing the US 
 
133 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 72.  
134 Aluminium Report, (Exh ibit CHN -5 and USA -8), p. 73.  
135 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 74.  
136 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 75.  
137 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 75.  
138 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 84.  
139 Aluminiu m Report, (Exhibit CHN -5 and USA -8), p. 89.  
140 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 89.  
141 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 91.  
142 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 95.  
143 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 97. 
144 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 100.  
145 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 107.  
146 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 107.  
147 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 108.  
148 Aluminium Report, (Exhibit CHN -5 and USA -8), pp. 108-109. WT/DS544/R  
 
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  aluminium industry.149 The Aluminium Report  also recommends an appeal process by which affected 
US parties could seek an exclusion from the tariff or quota imposed and notes that  the US Secretary 
of Commerce would grant exclusions based on demonstrating  (a) a lack of sufficient US production 
capaci ty of comparable products or ( b) specific national security based considerations.150 
Presidential Proclamations  
 The US Secretary of Commerce transmitted the Steel Report and the Aluminium Report  to 
the US President on 11  January  2018 and 19  January  2018 respectively.151  
On 8  March  2018, the US President issued two proclamations adjusting imports into the 
United  States : (a) Presidential Proclamation 9705 in relation to steel imports152 and (b) Presidential 
Proclamation 9704 in relation to aluminium imp orts.153 The US President concurred with the findings 
in the Steel and Aluminium Report s, and pursuant to the recommendations in these reports, imposed 
additional import duties of 25% and 10% respectively on certain steel and aluminium imports from 
all coun tries, with exemption s for imports from Canada and Mexico.154 The US President welcomed  
any country with which the United  States  has a security relationship to discuss alternative ways to 
address the threatened impairment of US national security caused by i mports from that country.155 
These proclamations also authori zed the US Secretary of Commerce to provide relief from the 
additional duties for any steel or any aluminium article determined not to be produced in the 
United  States  in a sufficient and reasonably available amount or in a satisfactory quality, or based 
upon specific national security considerations.156 
Following Presidential Proclamations 9704 and 9705, the US President issued additional 
proclamations adjusting steel and aluminium imports into the United  States . As described in greater 
detail below, these p roclamations removed the exemptions granted to Canada and Mexico157, 
granted various exemptions to certain WTO Members158, introduced import quotas on steel and 
aluminium imports from certain countries159, and increased the additional import duty applicable t o 
steel imports from Türkiye  to 50%.160 Subsequent proclamations also note the existence of 
agreements between the United  States  and countries exempted from the additional duties.  
2.2  Measures at issue  
In its panel request, China describes the measures it chall enges as follows161: 
a. On 23  March  2018, the United  States  imposed 25% and 10% of additional import duty 
respectively on certain steel products and alumin ium products from all countries except 
Canada , Mexico, Australia , Argentina, the Republic of Korea , Brazi l, and the 
European  Union .  
b. On 1 May 2018, the United  States  introduced a quota on imports of steel products from 
the Republic of Korea  and removed the exemption from the additional import duty on 
imported alumin ium products from the Republic of Korea .  
 
149 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 109.  
150 Aluminium Report, (Exhibit CHN -5 and USA -8), p. 109.  
151 Presidential Proclamation 9705, (Exhibit CHN -7 and USA -9), p. 11625; Presidential Proclamation 
9704, (Exhibit CHN -6 and USA -10), p. 11619.  
152 Presidential Proclamation 9705, (Exhibit CHN -7 and USA -9), p. 11625.  
153 Presidential Proclamation 9704, (Exhibit CHN -6 and USA -10), p. 11619.  
154 Presidential Proclamation 9705, (Exhibit CHN -7 and USA -9), p. 11627; Presidential Proclamation 
9704, (Exhibit CHN -6 and USA -10), p. 11621.  
155 Presidential Proclamation 9705, (Exhibit CHN -7 and USA -9), p. 1162 6; Presidential Proclamation 
9704, (Exhibit CHN -6 and USA -10), p. 1162 0. 
156 Presidential Proclamation 97 05, (Exhibit CHN -7 and USA -9), p. 11627; Presidential Proclamation 
9704, (Exhibit CHN -6 and USA -10), p. 11621.  
157 See sections 2.2.1.2  and 2.2.2.2  below.  
158 See sections 2.2.1.2  and 2.2.2.2  below.  
159 See sections 2.2.1.3  and 2.2.2.3  below.  
160 See section 2.2.1.1  below.  
161 China's panel request, p. 1 . WT/DS544/R  
 
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  c. On 1 June 2018, the United  States  removed the exemption from the additional import duty 
on imported steel products from Canada, Mexico an d European  Union , and removed the 
exemption from the additional import duty on imported alumin ium products from Brazil, 
Canada, Mexico, and European  Union . The United  States  also introduced quota on imports 
of steel products from Argentina and Brazil, and quota on imports of alumin ium products 
from Argentina.   
d. The United  States  has also provided for and implemented the exclusion of certain products 
from certain sources, upon applications, from the additional import duties.  
In addition to the above, China 's panel request  states  that t he measures at  issue include, but 
are not limited to, the following instruments of the United  States  in relation to the above -referenced 
actions on the importation of certain steel products and aluminium  products162:  
a. Presidential Proclamation 9704 of 8  March  2018;  
b. Presidential Proclamation 9705 of 8  March  2018;  
c. Presidential Proclamation  9710 of 22 March  2018;  
d. Presidential Proclamation  9711 of 22 March  2018; 
e. Presidential Proclamation 9739 of 30  April 2018;  
f. Presidential Proclamation 9740  of 30 April 2018; 
g. Presidential Proclamation 9758 of 31  May 2018;  
h. Presidential Proclamation 9759  of 31 May 2018; 
i. Presidential Proclamation 9772  of 10 August  2018; 
j. Presidential Proclamation 9776 of 29 August  2018;  
k. Presidential Proclamation 9777  of 29 August  2018; 
l. Interim Final Rule regarding Requirements for Submissions Requesting Exclusions From 
the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel Into the 
United  States  and Adjusting Imports of Alumi num Into the United  States ; and the Filing 
of Objections to Submitted Exclusion Requests for Steel and Aluminum (US Department 
of Commerce ); 
m. Interim Final Rule regarding  Submissions of Exclusion Requests and Objections to 
Submitted Requests for Steel and A luminum  (the Bureau of Industry and Security, US 
Department of Commerce ); 
n. Multiple BIS Decision Document – Steel Duty Exclusion Request and BIS Decision 
Document – Aluminum Duty Exclusion Request in response to various exclusion requests 
submitted to the B ureau of Industry and Security (the Bureau of Industry and Security, 
US Department of Commerce ); 
o. Section  232 Tariffs on Aluminum and Steel, Additional Duty on Imports of Steel and 
Aluminum Articles under Section  232 of the Trade Expansion Act of 1962 (US C ustoms 
and Border Protection ); 
 
162 China's panel request, pp. 2-3. WT/DS544/R  
 
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  p. Section  232 of the Trade Expansion Act of 1962, as amended  (United  States  Code, Title 
19, Section  1862), cited in the Presidential Proclamations above for vesting authorities in 
the President of the United  States  to take the actions therein ; 
q. The Effect of Imports of Steel on the National Security, An Investigation Conducted Under 
Section  232 of the Trade Expansion Act of 1962, As Amended (US Department of 
Commerce, 11  January  2018) ; and 
r. The Effect of Imports of Aluminum on the  National Security, An Investigation Conducted 
Under Section  232 of the Trade Expansion Act of 1962, As Amended  (US Department of 
Commerce, 17  January  2018). 
China's panel request also states that it covers any  amendments, supplements, extensions, 
replacement measures, renewal measures, related  measures, or implementing measures.163 
China explained in its first written submission that "[t]he measures at issue in this dispute 
consist of the additional import duties on steel and aluminum pr oducts; the country -specific 
exemptions granted from those duties and the related quota agreements; and the product -specific 
exclusion process."164 In its responses to questions  from the Panel , China further advances that it is 
challenging two distinct, bro ader measures, each of which  comprise s a set of individual measures 
that all address a particular category of products, i.e. steel or aluminium products.165 According to 
China, t he first broader measure comprise s the set of measures addressing steel product s and 
derivative steel articles166 and t he legal instruments corresponding to this set of measures consist 
of the Steel Report, the relevant Presidential Proclamations, and the related regulations issued by 
the USDOC.167 China argues that at minimum, this measure consists of ( 1) the additional import 
duties imposed on steel products, including those imposed on derivative steel articles;  (2) the 
country -specif ic exemptions, including those provided in relation to derivative steel articles; (3) 
import quotas pertaining to steel products ; and (4)  the product exclusion process as applied to steel 
products and individual product exclusions granted in relation to st eel products.168  
 China considers that t he second broader measure comprise s the set of measures addressing 
aluminium products and derivative aluminium  articles169 and that t he legal instruments 
corresponding to this set of measures consist of the Aluminium Report , the relevant Presidential 
Proclamations, and the related regulations issued by the USDOC.170 China argues that at minimum, 
this measure consists of (1) the additiona l import duties imposed on aluminium products, including 
those imposed on derivative aluminium articles; (2) the country -specific exemptions, including those 
provided in relation to derivative aluminium articles; (3) import quotas pertaining to aluminium 
products; and (4) the product exclusion process as applied to aluminium products and individual 
product exclusions granted in relation to aluminium products.171 
The following diagram depicts the Panel's understanding of China's  presentation of the 
measures at issue and aspects of each measure at the time of the establishment of the Panel on 
21 November  2018:  
 
163 China's panel request, p.3 .  
164 China's first written submission, para.  13. 
165 China's response to Panel question No s. 1.a and 1.b. See also China's response to Panel question 
No. 84.a, footnote  16 ("[r]eferences in China's prior submissions to 'individual measures' comprising the 
broader measures at issue are references to the individual elements comprising those broader meas ures").  
166 See section 2.3 below . 
167 China's response to Panel question No s. 1.a and 1.b.  
168 China's response to Panel question No.  2.a. 
169 See section 2.3 below . 
170 China's response to Panel question No s. 1.a and 1.b.  
171 China's response to Panel question No.  2.a. WT/DS544/R  
 
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  Figure 1: China's presentation of measures at issue at the time of Panel establishment  
 
The foll owing sections describe the measures that China challenges in this dispute . 
WT/DS544/R  
 
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The "broader steel measure"  
2.2.1.1   Additional import duties  
Pursuant to Presidential Proclamation 9705 of 8  March  2018, all imports of steel products as 
specified in the Proclamation shal l be subject to an additional 25% ad valorem  duty. According to 
this Proclamation, this rate of duty is in addition to any other duties, fees, exactions, and charges 
applicable to such imported steel articles.172 
Subsequently, Presidential Proclamation 9772 of 10  August  2018 imposed a 50% ad valorem  
duty on steel articles imported from Türkiye , beginning on 13  August  2018.173 
2.2.1.2   Country -specific  exemptions  
Presidential Proclamation 9705 of 8  March  2018 sets out that the additional 25% ad valorem  
duty on imports of steel shall not be applied to imports fro m Canada and Mexico.174 
Subsequently, Presidential Proclamation 9711 of 22  March  2018 amended Presidential 
Proclamation 9705 and introduced exemptions for Australia, Argentina, the Republic of Korea , Brazil, 
and the member countries of the European  Union , in addition to those already granted to Canada 
and Mexico, until 1  May 2018.175  
Presidential Proclamation 9740 of 30  April 2018 introduced further modifications by (a) 
extending the exemptions granted to Canada, Mexico, and the European  Union  until 1  June 2018176; 
(b) extending the exemption s for Argentina, Australia, and Brazil until an unspecified date177; and 
(c) extending the  exemption to the Republic of Korea  until an unspecified date .178 
Presidential Proclamation 9759 of 31  May 2018 further  extended  the exemptions from the 
additional import duties granted to Argentina, Australia, and Brazil  until an unspecified date .179 This 
Proclamation did not extend the exemptions for Canada, Mexico, and the European  Union . 
2.2.1.3   Import quotas  
Presidential Proclamation 9740 of 28  April 2018 describes how the United  States  and the 
Republic of Korea  agreed upon a quota on steel imports.180 Part A of the Annex to this Proclamation 
sets out the amendments to US Note 16 of subchapter III of chapter 99  of the Harmonized Tariff 
Schedule of the United  States  (HTSUS ) that provide for this quota treatment181, and Part B of the 
Annex to the Proclamation details the annual aggregate limits for the applicable quotas.182  
Presidential Proclamation 9759 of 31  May 2018 introduced quotas on steel products from 
Argentina and Brazil.183 The Annex to this Proclamation details the annual aggregate limits for the 
applicable quotas.184 
2.2.1.4   Product -specific exclusion process  
Presidential Proclamation 9705 of 8  March  2018 auth orized the US Secretary of Commerce to 
provide relief from the additional duties set out therein for any steel article determined not to be 
 
172 Presidential Proclamation 9705, ( Exhibit CHN-7 and USA-9), p. 11627.  
173 Presidential Proclamation 9772,  (Exhibit CHN -14), p. 40430.  
174 Presidential Proclamation 9705, ( Exhibit CHN -7 and USA-9), pp. 11626 -11627.  
175 Presidential Proclamation 9711,  (Exhibit CHN-9 and USA-11), pp. 13361 -13363.   
176 Presidential Proclamation 9740, (Exhibit CHN -11 and USA -13), p. 20685.  
177 Presidential Proclamation 9740, (Exhibit CHN -11 and USA -13), p. 20684.  
178 Presidential Proclamation 9740, (Exhibit CHN -11 and USA -13), p. 20684.  
179 Presidential Proclamation 9759, (Exhibit CHN-13 and USA -15), p. 25858.  
180 Presidential Proclamation 9740, (Exhibit CHN -11 and USA -13), p. 2068 3. 
181 Presidential Proclamation 9740, (Exhibit CHN -11 and USA -13), p. 20685.  
182 Presidential Proclamation 9740, (Exhibit CHN -11 and USA -13), pp. 20697 -20705.  
183 Presidential Proclamation 9759, (Exhibit CHN -13 and USA -15), pp. 25857 -25858.  
184 Presidential Proclamation 9759, (Exhibit CHN -13 and USA -15), p. 25861. WT/DS544/R  
 
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  produced in the United  States  in a sufficient and reasonably available amount or of a satisfactory 
quality and also to provide such relief based on specific national security considerations.185  
On 19  March  2018, the US Department of Commerce issued the requirements for submissions 
requesting exclusions from the remedies instituted in the Presidential Proclamations adjus ting 
imports of steel and alumin ium into the United  States  (March Interim Final Rule).186 This document 
specifies the requirements and process by which parties in the United  States  may submit requests 
for exclusions from the duties instituted by the US President, including how parties in the 
United  States  may submit objections to exclusion requests. It further identifies the relevant time 
periods for submitting such exclusion reques ts and any objections to those requests, the method for 
submitting such requests, and the information that must be included in such requests and 
objections .187 
On 11  September  2018, US Department of Commerce issued a document titled " Submissions 
of Exclusio n Requests and Objections to Submitted Requests for Steel and Aluminum" (September 
Interim Final Rule).188 This document introduces revisions to the requirements set out in the March 
Interim Final Rule and "changes to the exclusion processes in this rule … informed by both the 
comments received in response to the March 19 rule and the Department's experience with 
managing the exclusion process".189 According to this document, the modifications were aimed at 
improving transparency, effectiveness , and fairness  of the product exclusion process , including by 
adding a rebuttal and surrebuttal process.190 
Presidential Proclamation 9777 of 29  August  2018 authorized the  US Secretary of Commerce 
to provide relief from quantitative limitations on steel articles adopted pursuant to Section  232, 
including those set forth in Presidential Proclamation s 9740 and 9759, on the same basis as the 
Secretary is authorized to provide relief from the duty established in Presidential Proclamation 
9705.191  
The " broader aluminum  measure"  
2.2.2.1   Additional import duties  
Pursuant to Presidential Proclamation 9704 of 8  March  2018, all imports of alumin ium articles 
as specified in the Proclamation shall be subject to an additional 10% ad valorem  duty. According 
to this Proclamation, this ra te of duty is in addition to any other duties, fees, exactions, and charges 
applicable to such imported alumin ium articles.192  
2.2.2.2   Country -specific  exemptions  
Presidential Proclamation 9704 of 8  March  2018 sets out that the additional 10% ad valorem 
duty on imports of aluminium shall not be applied to imports from Canada and Mexico.193  
Subsequently, Presidential Proclamation 9710 of 22  March  2018 amended Presidential 
Proclamation 9704 and introduced exemptions for Australia, Argentina, the Republic of Korea , Brazil, 
and the member countries of the European  Union , in addition to those already granted to Canada 
and Mexico, until 1  May 2018.194  
 
185 Presidential Proclamation 9705, ( Exhibit CHN -7 and USA-9), p. 11627.  Presidential Proclamation 
9711 of 22  March  2018 amended Presidential Proclamation 9705 of 8  March  2018 by introducing the following 
language: " Such relief may be provided to directly affected  parties on a party -by-party basis taking into 
account the region al availability  of particular articles, the ability to transport articles within the United  States , 
and any other factors as the Secretary deems appropriate ". (Presidential Proclamation 9711, (Exhibit CHN -9 
and USA-11), p. 13364 ). 
186 March Interim Final Rule, (Exhibit CHN-17 and USA-20), pp. 12106 -12112 . 
187 March Interim Final Rule, ( Exhibit CHN-17 and USA-20), p. 12110.  
188 September Interim Final Rule,  (Exhibit CHN -18 and USA-21), pp. 46026 -46065 . 
189 September Interim Final Rule, ( Exhibi t CHN -18 and USA-21), p. 46027.  
190 September Interim Final Rule, ( Exhibit CHN -18 and USA-21), p. 46027.  
191 Presidential Proclamation 9777, ( Exhibit CHN-16 and USA-18), p. 45026.  
192 Presidential Proclamation 9704, ( Exhibit CHN -6 and USA-10), p. 11621.  
193 Presidential Proclamation 9704, ( Exhibit CHN -6 and USA-10), pp. 11620 -11621.   
194 Presidential Proclamation 9710, ( Exhibit CHN-8 and USA-12), p. 13357 . WT/DS544/R  
 
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Presidential Proclamation 9739 of 30  April 2018 introduced further modifications by (a) 
extending the exemptions granted to Canada, Mexico, and the European  Union  until 1  June 2018195; 
(b) extending the exemption for Argentina, Australia, and Brazil until an  unspecified date 196; and 
(c) ending the exemption granted to the Republic of Korea .197 
Presidential Proclamation 9758 of 31  May 2018 further extended the exemptions from the 
additional import duties granted to Argentina and Australia  until an unspecified d ate.198 This 
Proclamation did not extend the exemptions for Brazil, Canada, Mexico, and the European  Union .199 
2.2.2.3   Import quotas  
Presidential Proclamation 9758 of 31  May 2018 introduced quotas for aluminium products 
from Argentina.200 The Annex to this Proclamation details the annual aggregate limits for the 
applicable quotas.201 
2.2.2.4   Product -specific exclusion proces s 
Presidential Proclamation 9704 of 8  March  2018 authorized  the US Secretary of Commerce to 
provide relief from the additional  duties set out therein for any alumin ium article determined not to 
be produced in the United  States  in a sufficient and reasonably available amount or of a satisfactory 
quality and also to provide such relief based on specific national security considerat ions.202  
On 19 March  2018, the US Department of Commerce issued the requirements for submissions 
requesting exclusions from the remedies instituted in the Presidential Proclamations adjusting 
imports of steel and alumin ium into the United  States .203 This do cument specifies the requirements 
and process by which parties in the United  States  may submit requests for exclusions from the duties 
instituted by the US President, including how parties in the United  States  may submit objections to 
exclusion requests. It further identifies the relevant time periods for submitting such exclusion 
requests and any objections to those requests, the method for submitting such requests, and the 
information that must be included in  such requests and objections .204 
On 11  September  2018, US Department of Commerce issued a document titled " Submissions 
of Exclusion Requests and Objections to Submitted Requests for Steel and Aluminum".205 This 
document introduces revisions to the requireme nts set out in the March Interim Final Rule and 
"changes to the exclusion processes in this rule … informed by both the comments received in 
response to the March 19 rule and the Department's experience with managing the exclusion 
process".206 According to this document, the modifications were aimed at improving transparency, 
effectiveness , and fairness  of the product exclusion process , including by adding a rebuttal and 
surrebuttal process.207 
Presidential Proclamation 9776 of 29  August  2018 authorized the  US Secretary of Commerce 
to provide relief from quantitative limitations on alumin ium articles adopted pursuant to Section  232, 
 
195 Presidential Proclamation 9739, ( Exhibit CHN -10 and USA-14), p. 20678.  
196 Presidential Proclamation 9739, ( Exhibit CHN -10 and USA-14), pp. 20677 -20678.  
197 Presidential Proclamation 9739, (Exhibit CHN -10 and USA -14), pp. 20678 -20679.  
198 Presidential Proclamation 9758, (Exhibit CHN -12 and USA -16), pp. 25849 -25850.  
199 Presidential Pr oclamation 9758, (Exhibit CHN -12 and USA -16), p. 25850.  
200 Presidential Proclamation 9758, (Exhibit CHN -12 and USA -16), pp. 25850 -25851 .  
201 Presidential Proclamation 9758, (Exhibit CHN -12 and USA -16), pp. 25853-25855.  
202 Presidential Proclamation 9704, ( Exhibit CHN -6 and USA-10), p. 11621.  Presidential Proclamation 
9710 of 22  March  2018 amended Presidential Proclamation 970 4 of 8 March  2018 by introducing the following 
language: " Such relief may be provided to directly affected  parties on a party -by-party basis taking into 
account the regional availability  of particular articles, the ability to transport articles within the United  States , 
and any other factors as the Secretary deems appropriate ". (Presidential Proclamation 9710, (Exhibit CHN -8 
and USA -12), p. 13358 ). 
203 March Interim Final Rule, (Exhibit CHN-17 and USA-20), pp. 12106 -12112 . 
204 March Interim Final Rule, ( Exhibit CHN-17 and USA-20), p. 12110.  
205 September Interim Final Rule,  (Exhibit CHN -18 and USA-21), pp. 46026 -46065 . 
206 September Interim Final Rule, (Exhibit CHN -18 and USA-21), p. 46027.  
207 September Interim Final Rule, (Exhibit CHN -18 and USA-21), p. 46027.  WT/DS544/R  
 
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  including those set forth in Presidential Proclamation 9758 , on the same basis as the Secretary is 
authorized to provide relief from the duty established in Presidential Proclamation 9704 .208  
2.3  Measures amended, modified, or replaced after the establishment of the Panel  
In its responses to questions from the Panel after the first meeting and in its second  written 
submission, China describes  certain factual and legal developments of the measures at issue that 
occurred after China's request for the establishment of the Panel.209 China requests the Panel to 
consider  within its terms of reference Presidential P roclamation 9980 imposing additional import 
duties on derivative steel and aluminium products and exempting certain WTO Members from said 
duties .210 
3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
 China requests the Panel to find that211: 
a. The United  States  has acted inconsistently with Article  2.1 of the Agreement on 
Safeguards and, consequently, Article  XIX:1(a) of the GATT  1994, because the 
United  States  has applied safeguard measures to certain imported steel and alumin ium 
products without f irst having determined, pursuant to the subsequent provisions of the 
Agreement on Safeguards, that such products are being imported into its territory in such 
increased quantities, absolute or relative to domestic production, and under such 
conditions as t o cause or threaten to cause serious injury to the domestic industry that 
produces like or directly competitive products, as a result of unforeseen developments and 
of the effect of the obligations incurred under the GATT  1994; 
b. The United  States  has acted inconsistently with Article  2.2 of the Agreement on 
Safeguards, because the United  States  has not applied the safeguard measures to 
imported products irrespective of their sources;  
c. The United  States  has acted inconsistently with Article  4.1 of the Agreeme nt on 
Safeguards, because the United  States  has not properly determined that there is serious 
injury, or threat thereof, to a domestic industry;  
d. The United  States  has acted inconsistently with Article  4.2 of the Agreement on 
Safeguards, because the United  States  has failed to properly evaluate all relevant factors 
having a bearing on the situation of the domestic industry and has failed to demonstrate 
the existence of a causal link between increased imports and serious injury or the threat 
thereof, includi ng by not attributing injury caused by factors other than increased imports;  
e. The United  States  has acted inconsistently with Article  5.1 of the Agreement on 
Safeguards, because the United  States  has applied safeguard measures beyond the extent 
necessary to  prevent or remedy serious injury and to facilitate adjustment;  
f. The United  States  has acted inconsistently with Article  7 of the Agreement on Safeguards, 
because the United  States  has applied safeguard measures without making provision for 
their applicati on only for the period necessary to prevent or remedy serious injury and to 
facilitate adjustment, without limitation to four years, and without making provision for 
progressive liberalization at regular intervals;  
g. The United  States  has acted inconsistentl y with Article  11.1(a) of the Agreement on 
Safeguards because the United  States  has taken emergency action on imports of particular 
products as set forth in Article  XIX of the GATT  1994, without such action conforming with 
that provision applied in accorda nce with the Agreement on Safeguards;  
 
208 Presidential Proclamation 9776, ( Exhibit CHN -15 and USA-19), p. 45020. 
209 China's second written submission, para.  119; response to Panel question No.  86. 
210 China's response to Panel question No.  86. 
211 China's first written submission, par a. 177. See also China's panel request, pp. 3-4. WT/DS544/R  
 
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  h. The United  States  has acted inconsistently with Articles 12.1, 12.2 and 12.3 of the 
Agreement on Safeguards, and, consequently, Article  XIX:2 of the GATT  1994, because 
the United  States  has failed to comply with any of  the notification and consultation 
obligations set out in these provisions;  
i. The United  States  has acted inconsistently with Article  II:1(a) and (b) of the GATT  1994, 
because the United  States  has not provided treatment no less favourable to steel and 
alumi nium products originating in China than that provided for in the United  States ' 
Schedule annexed to the GATT  1994;  
j. The United  States  has acted inconsistently with Article  I:1 of the GATT  1994, because, 
with respect to customs duties and charges of any kind imposed on or in connection with 
importation, and with respect to all rules and formalities in connection with importation, 
the United  States  has not accorded certain advantages, favours, pr ivileges or immunities 
granted to products originating in certain other Members immediately and unconditionally 
to the like products originating in the territories of all other Members, including China;  
k. The United  States  has acted inconsistently with Artic le X:3(a) of the GATT  1994, because 
the United  States  has failed to administer its laws, regulations, decisions and rulings in 
relation to the measures at issue in a uniform, impartial and reasonable manner.  
China requests that the Panel recommend that the  United  States  bring the challenged 
measures into conformity with its obligations under the relevant covered agreements.  
The United  States  requests that the Panel find that the United  States  has invoked its essential 
security interests under Article  XXI(b)  of the GATT  1994 and so report to the DSB.212 
4  ARGUMENTS OF THE PARTIES  
The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 23 of the Working Procedures adopted by the Pan el (see Annex  B). 
5  ARGUMENTS OF THE THI RD PARTIES  
The arguments of certain third parti es are reflected in their executive summaries, provided in 
accordance with paragraph 26 of the Working Procedures adopted by the Panel (see Annex  C).  
6  INTERIM REVIEW  
On 29  June 2022, the Panel issued its Interim Report to the parties. On 3  August  2022, the 
United  States  submitted written requests for review of the Interim Report. China did not submit any 
requests for review of the Interim Report. Neither party requested an interim review meeting. On 
31 August  2022, China submitted comments on the United States ' requests for review.  
In accordance with Article  15.3 of the DSU, this section of the Report sets out the Panel's 
response to the requests made at the interim review stage, including certain requests discussed in 
greater detail below.  
The Pa nel notes that the requests for review of the Interim Report include requests to provide 
more detailed summaries of the parties' arguments. Throughout the Report, the Panel has 
summarized the parties' arguments in order to facilitate understanding of the c ontested issues 
addressed in the Panel's reasoning and findings. The Panel has not comprehensively reproduced 
every aspect of the parties' arguments, which are more fully reflected in the executive summaries 
annexed to this Report. Rather, the Panel has su mmarized the relevant arguments in the context of 
its own objective assessment of the matter before it, having regard for its mandate and discretion 
to make such findings as will assist the DSB in making the recommendations or rulings provided for 
in the r elevant covered agreements.  In this regard, it is generally within the discretion of a panel to 
 
212 United  States ' first written submission,  para. 186. WT/DS544/R  
 
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  decide which arguments or evidence it addresses or relies on in reaching its findings.213 Subject to 
the explanations and modifications described below, the Pane l considers that the parties' arguments 
are adequately reflected and addressed in this Report, including the annexes thereto, to fulfil the 
requirements of the Panel's mandate under the DSU.214 
In addition, the Panel has made typographical and other editori al modifications in the Report, 
including in response to the requests for review. The discussion below refers to the numbering of 
sections, paragraphs, and footnotes in the Final Report.  
6.1  Article  XIX of the GATT  1994  and the Agreement on Safeguards  
The United States  requests the Panel to include in paragraph 7.77  "additional support" for its 
conclusions regarding the terms "pursuant to" in Article  11.1(c) of the Agreement on Safeguards. In 
particular, the United  States  argues that the Panel's conclusions in this paragraph are supported by 
the ordinary meaning of the terms "sought, taken or maintained" in Article  11.1(c) . China considers  
that incorporating the United  States ' arguments on the ordinary meaning of the words "sought, 
taken or maintained" in this p aragraph is unnecessary  and requests that the Panel deny the changes 
requested by the United  States . 
In section 7.7.2 of its Report, the Panel has examined the terms "pursuant to" in Article  11.1(c) 
considering their ordinary meaning and having regard for the relevant context provided by terms 
used elsewhere in the Agreement on Safeguards, including those that appear to convey a 
relationship of consistency with the requirements of another provision of the covered agreements. 
The Panel has further considered  the use of terms in the three authentic language versions of the 
Agreement on Safeguards in accordance with the customary rules of interpretation of public 
international law. The Panel has also found support for its conclusions in the object and purpose o f 
the Agreement on Safeguards, as expressed in its preamble, and the negotiating history of 
Article  11.1(c). Accordingly, the Panel does not consider it necessary to additionally address the 
United  States ' arguments concerning the terms "sought, taken or m aintained" in Article  11.1(c) to 
determine the meaning of "pursuant to" in that provision.  
The Panel has taken note of the United  States ' arguments concerning the meaning of "sought" 
in Article  11.1(c), which are related to the United  States ' contention t hat formal notification of 
safeguard measures to the WTO is a "condition precedent" to the applicability of safeguard 
disciplines. As part of its objective assessment of the legal characterization of the measures under 
Article  11.1(c), the Panel has taken into account the manner in which the measures at issue were 
notified to relevant WTO bodies or committees. Recalling the nature of the Panel's inquiry on the 
applicability of safeguard disciplines to the measures at issue, the Panel does not consider it 
necessary to address in further detail the United  States ' arguments on the meaning of "sought" in 
Article  11.1(c).  In this respect, the Panel additionally recalls its mandate and discretion to make 
such findings as will assis t the DSB in making the rulings and recommendations provided for in the 
relevant covered agreements.  
The United  States  requests the Panel to revise paragraph 7.84  to accurately reflect its 
argument that "a key condition precedent to the exercise of [the ri ght to apply a safeguard measure] 
is that the Member has invoked Article XIX as the legal basis for its measure by providing notice in 
writing and affording affected Members an opportunity to consult." According to the United  States , 
by suggesting "the United States ' [contends] that, based on Article  XIX:2 of the GATT  1994, formal 
notification of safeguard measures to the WTO is a 'condition precedent' to the applicability of 
safeguard disciplines", the Panel misstates the United  States ' position.  China req uests that the Panel 
deny the changes requested by the United  States  as the argument that "invocation" is a "condition 
precedent" for the applicability of safeguards disciplines is, in fact, an argument that formal 
notification under Article  XIX:2 of the G ATT 1994 is a "condition precedent". Should the Panel 
nevertheless accept the United  States ' request, China requests that the Panel incorporate reference 
to China's responsive arguments.  
The Panel notes that, in its submissions, the United  States  refers v ariously to "notice", 
"invocation", and "invocation through notice" under Article  XIX:2 of the GATT  1994 as a "condition 
 
213 See e.g. Appellate  Body Reports, Ukraine – Ammonium Nitrate , para.  6.42; US – COOL , para.  299; 
EC – Poultry , para.  135; EC – Hormones , para.  135. 
214 See section 7.1 below.  WT/DS544/R  
 
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  precedent" for applicability of safeguard disciplines. The Panel has accordingly retained its summary 
of the United  States ' arguments i n this respect and revised the corresponding footnote to clarify the 
various terms used by the United  States  in its submissions to the Panel . 
6.2  Article  XXI(b) of the GATT  1994  
The United  States  requests an addition to paragraph 7.106 of certain arguments it puts 
forward on the interpretation of Article  XXI(b), including its arguments on which phrase in 
Article  XXI(b) is modified by subparagraphs (i) and (ii) and the reconciliation of different language 
versions of Article  XXI(b). The United  States  also reques ts that paragraph 7.107  include a more 
complete description of the complainant's arguments on the interpretation of Article  XXI(b). China 
disagrees with the United  States ' request and considers that the Panel has adequately described the 
United  States ' pro posed interpretation of Article  XXI(b), including by reference to relevant 
submissions of the United  States . In addition, China does not consider further elaboration of China's 
interpretation of Article  XXI(b) to be necessary.  
Recalling its approach to reflecting the parties' arguments on the issues raised in this dispute, 
the Panel declines to expand the summaries of the parties' arguments in these paragraphs. In 
response to the United  States ' request, the Panel further notes t hat modification s to the Interim 
Report  discussed below include expanded reference to arguments that the United  States  requested 
to be reproduced in these paragraphs.   
The United  States  requests that the Panel delete the footnote to paragraph 7.112  and 
instead address its substantive content in the body of the Report, particularly concerning the 
United  States ' arguments on the differences in the French and Spanish versions of Article  XXI(b) 
and the reconciliation of the three language versions of the text. In the United  States ' view, the 
Panel does not engage with these arguments and "misstates them in a footnote reference". The 
United  States  requests further engagement with these arguments and, specifically, that the Panel 
"explain why it is incorrect to re ad the sentence [in Article  XXI(b)] as consisting of three alternatives" 
for each subparagraph. China requests that the Panel deny the United  States ' request. In China's 
view, the Panel has adequately explained the basis for its finding in the relevant par agraph and has 
made sufficient reference to the United  States ' arguments in the accompanying footnote, which 
makes clear that the Panel evaluated but did not consider it necessary to further explore the parties' 
arguments on the reconciliation of the three  authentic texts.  
The Panel acknowledges the United  States ' indication in its request for interim review that it 
"agrees (in the interpretation that best reconciles the three language versions) with the Panel that 
each of the paragraphs 'describe[s] the a ction referred to in Article  XXI(b)', but mediated through 
the relative clause 'which it considers'." The Panel has accordingly retained the statement of its 
understanding that the parties agree that the subparagraphs qualify and relate to the "action" in 
Article  XXI(b), notwithstanding some disagreement as to the precise basis for this conclusion. The 
Panel has also expanded the summary of the United  States ' arguments regarding the reconciliation 
of texts in the three authentic language versions and its co ntention that, under this reconciled 
interpretation, the terms of the provision still form a "single relative clause" that begins with the 
phrase "which it considers" and contains the entirety of each subparagraph.  
Regarding the United  States ' request for further elaboration in the body of the Report, the 
Panel briefly reviews certain points of its analysis of the United  States ' arguments to clarify the 
overall context in which the footnote appears in the Panel's reasoning regarding the interpretation 
of Article XXI(b) in this dispute. In section 7.8.2, the Panel focuses specifically on the United  States ' 
argument that "which it considers" qualifies the subparagraphs of Article  XXI(b) within a "single 
relative clause" that entirely reserves the subparagraphs  to the judgment of the invoking Member. 
In accordance with Article  3.2 of the DSU, the Panel's textual analysis addresses the function and 
ordinary meaning of the subparagraphs as describing certain kinds of permitted "action", including 
reference to the structure and punctuation of Article  XXI of the GATT  1994. In this regard, the Panel 
concludes that the paragraphs and subparagraphs form alternative endings to a complete sentence 
under Article  XXI, and the opening terms of each of the subparagraphs ("rel ating to" and "taken") 
qualify the "action" in paragraph (b). Moreover, the subparagraphs are exhaustive in establishing 
the circumstances in which a Member may take the "action" under Article  XXI(b).  WT/DS544/R  
 
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Following these textual conclusions, the Panel addresses grammatical aspects of the parties' 
arguments as well as other aspects of textual interpretation and ordinary meaning, particularly the 
principle of effective treaty interpretation and the exhaustive types of "action" specified in the 
subparagrap hs of Article  XXI(b). The Panel additionally addresses relevant context in Articles XXII 
and XXIII of the GATT  1994 and the DSU, the object and purpose of maintaining the balance of 
rights and obligations under the covered agreements, and non -treaty materi als submitted by the 
parties relating to the interpretation of Article  XXI of the DSU. Based on the entirety of this analysis, 
the Panel concludes that the terms "which it considers" in Article  XXI(b) do not qualify the 
subparagraphs to render them "self -judging" or "non -justiciable" as argued by the United  States . 
In this manner, the Panel has addressed multiple aspects of the interpretation of 
Article  XXI(b) with specific reference to the United  States ' argument regarding a "single relative 
clause" purpor tedly encompassing the subparagraphs of that provision. As one element of this 
analysis, the Panel has noted the concordance of plural and feminine terms in the French and Spanish 
versions of Article  XXI(b) to support the qualification of the term "action"  by the subparagraphs. In 
other parts of its assessment, the Panel has also examined the ordinary meaning of actions "relating 
to" specified "materials" and "traffic" and to actions "taken in time of" specified circumstances. The 
Panel has further accounte d for the structure of Article  XXI(b) and the textual separation of the 
subparagraphs into an enumerated list, which corresponds to the role of the subparagraphs as 
alternative sentence endings that collectively and exhaustively delimit the scope of Articl e XXI(b).  
The Panel recalls its mandate and discretion to make such findings as will assist the DSB in 
making the recommendations or rulings provided for in the relevant covered agreements. In 
assessing the contested issues of interpretation regarding Art icle XXI(b) and the review of its 
invocation by a Member in dispute settlement proceedings, the Panel did not find it necessary to 
address in greater detail the parties' arguments on the reconciliation of the three authentic texts  of 
the provision . In addition, the United  States  does not explain the relevance of these arguments to 
the Panel's overall analysis and conclusions on whether a "single relative clause" beginning with the 
phrase "which it considers" renders Article  XXI(b) "self -judging" or  "non-justiciable" in the sense 
argued by the United  States . To the extent the United  States ' request concerns the weight assigned 
to its arguments and the merits of the Panel's analysis, the Panel notes that interim review is not an 
appropriate stage for relitigating arguments already submitted by the parties and addressed to the 
extent necessary in the Panel's findings.215 In these circumstances, the Panel has modified this 
footnote to expand the summary of the parties' arguments and to clarify that the Pa nel does not 
consider it necessary for the purposes of this dispute to address in further detail the parties' 
arguments on the reconciliation of the three authentic texts in relation to the contested issues of 
interpretation under of Article  XXI(b) and its  application to the measures at issue in this dispute . 
The United  States  requests that the Panel introduce certain modifications to 
paragraphs  7.119 and 7.120  in order to more accurately reflect its arguments on English 
grammar rules in the context of the interpretation of Article  XXI(b). China does not object to the 
proposed clarification to paragraph 7.119  but requests that the Panel deny certain changes 
requested by the United  States . In particular , China disagrees with the incorporation of additional 
details of the United  States ' arguments as the Panel is not obligated to address every specific 
argument raised by the parties.  
The Panel has made the requested modification in paragraph 7.119 to clarify the context 
regarding subparagraphs (i) and (ii) of Ar ticle XXI(b) in which the United  States  referred to the rules 
of English grammar. The Panel declines the additional suggested text in paragraph 7.120 in which 
the Panel is addressing grammatical considerations as part of its overall assessment of the conte sted 
issues of interpretation under Article  XXI(b) in this dispute. In particular, the Panel's analysis in 
these paragraphs notes the absence of a definitive rule of grammar supporting the United  States ' 
construction of the provision as containing a "singl e relative clause" that wholly reserves the 
conditions and circumstances of the subparagraphs to the judgment of the invoking Member. The 
Panel has modified these paragraphs to clarify that, with respect to the interpretation of 
Article  XXI(b), the qualifi cation of the noun "action" in paragraph (b) by the subparagraphs is not 
solely determined by rigid application of grammar but follows from the ordinary meaning of these 
terms, as elaborated in the remainder of the Panel's analysis.  
 
215 See e.g. Panel  Report s, India – Solar Cells , para.  6.24; Indonesia – Iron or Steel Products , Annex  A-
3, paras.  2.3-2.4; US – Poultry (China) , para.  6.32. WT/DS544/R  
 
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The United  States  reque sts that the Panel expand the summary of arguments in 
paragraph  7.133  on the interpretation of the terms "emergency in international relations" in 
Article  XXI(b)(iii), and that the Panel address these arguments in paragraph 7.137  setting out the 
Panel's in terpretation of these terms. China requests that the Panel deny the United  States ' requests 
to further address its argument concerning the definition of the term "emergency in international 
relations". In China's view, the elaboration on the United  States ' interpretation of the term 
"emergency" in Article  XXI(b)(iii) does not constitute a "key" argument as commented by the 
United  States  in its requests for interim review.  
As noted, the Panel has not comprehensively reproduced every aspect of the parties' 
arguments but rather has referred to the parties' arguments in order to facilitate understanding of 
the contested issues addressed in the Panel's reasoning and findings. In this connection, the Panel 
has focused on the gravity or severity of an "emergency i n international relations" within the 
meaning of Article  XXI(b)(iii), particularly regarding the impact on international relations of 
situations falling under that provision. Moreover, the Panel has interpreted the terms "emergency in 
international relatio ns" in accordance with Article  3.2 of the DSU and its mandate to make such 
findings as will assist the DSB in making the recommendations or rulings provided for in the covered 
agreements. In section 7.8.3, the Panel has addressed the interpretation of Arti cle XXI(b)(iii) to the 
extent necessary to assess whether, based on the evidence and arguments submitted by the parties, 
the measures at issue were "taken in time of war or other emergency in international relations". On 
the basis of the foregoing, the Pan el does not consider it necessary to further address the 
United  States ' arguments in this regard.  
6.3  Appendices  
The United  States  requests that the Panel incorporate the analysis and conclusions contained 
in Appendices A and B  into the main body of the Report. The United  States  considers the materials 
described in these appendices to be integral to the Panel's analysis and notes tha t they were a 
subject of disagreement and argument by the parties.  China does not consider it necessary for the 
Panel to incorporate the analysis and conclusions currently reflected in the appendices  into its 
Report.  
The Panel recalls its conclusion in Ap pendix  A that its review of the negotiating history of 
Article  11.1(c) of the Agreement on Safeguards confirms its interpretation of that provision. The 
Panel has also concluded that the materials examined in Appendix  B support the general conclusion 
that the terms of Article  XXI(b) of the GATT  1994 establish a right to take action for the protection 
of essential security interests in the conditions and circumstances described in the three 
subparagraphs. The appendices set out in greater detail the specific  materials examined, the 
arguments advanced by the parties, and the bases for the Panel's conclusions. The Panel therefore  
declines the United  States ' request,  and the Panel has modified the references to the appendices in 
the Report to specify which appendix is being referred to in the Panel's analysis . 
7  FINDINGS  
7.1  Mandate  under the DSU  
The Panel was established  by the DSB in accordance with Article  6 of the DSU with standard 
terms of reference, as provided in Article  7.1 of the DSU, "[t] o examine, in the lig ht of the relevant 
provisions of the covered agreements cited by the parties to the dispute, the matter referred to the 
DSB" in the complainant's panel request and " to make such findings as will assist the DSB in making 
the recommendations or in giving the  rulings provided for in those agreements ". Pursuant to 
Article  7.2 of the DSU, the Panel is required to "address the relevant provisions in any covered 
agreement or agreements cited by the parties to the dispute".  
The matter referred to the DSB in the com plainant's panel request comprises claims under the 
GATT  1994 and the Agreement on Safeguards with respect to the measures at issue.216 In response 
to these claims, the United  States  requests that the Panel find that the United  States  has invoked 
its essential security interests under Article  XXI(b) of the GATT  1994 and so report to the DSB.217 
Although the United  States  acknowledges that "the Panel has jurisdiction over this dispute, because 
 
216 See section 3 above.  
217 United  States ' first written submission, para. 186. WT/DS544/R  
 
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  the DSB has established the Panel to examine  the matter set out in the panel request "218, it argues 
that its " invocation of Article  XXI is a non -justiciable issue as Article  XXI makes its invocation 
self-judging by the Member taking the security action ".219 In the United  States ' view, "[i] t follows 
that the Panel may not make findings on the complainant 's claims because they are not appropriate 
or suitable for adjudication by the Panel and may not make recommendations because no finding of 
WTO-inconsistency can be made. "220  
In response to questions fro m the Panel, t he United  States  clarifies that "the United  States  is 
not requesting that the Panel refrain from applying the rules and procedures of the DSU " but rather 
submits that "[the United  States '] approach reflects an outcome consistent with a panel 's terms of 
reference from the DSB and function of a panel under the DSU, and a proper interpretation of 
Article  XXI(b) under the Vienna  Convention " on the Law of Treaties  (Vienna  Convention ).221 
According to the United  States , the Panel's "jurisdiction" conferred by Articles 7.1 and 11 of the DSU 
is constrained by "the ordinary meaning of the terms in Article  XXI(b)", as interpreted in accordance 
with the customary rules of interpretation of public international law.  The United States  thus clarifies 
that its arguments on "justiciability" and the "political" nature of the questions involved rest on the 
interpretation of the terms of Article  XXI(b) in accordance with the interpretive principles of 
Article  3.2 of the DSU and the P anel's terms of reference.222 As addressed in greater detail below, 
the complainant also refers to these interpretive principles and the requirements of the Panel's terms 
of reference in contesting the United  States ' characterization of Article  XXI(b) as "n on-justiciable".223   
Based on its terms of reference, the Panel's mandate under the DSU is to examine the matter 
raised by the complainant in its panel request and to address the United  States ' invocation of 
Article  XXI(b) of the GATT  1994. The purpose of this examination is to enable the Panel to make 
such findings as will assist the DSB in discharging its responsibilities under the covered agreements. 
In fulfilling this mandate, the Panel is mindful of its function and duty under Article  11 of the DSU to 
make 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. The Panel 
is further guided by the role of WTO dispute settlement , as recognized in Article  3.2 of the DSU, to 
preserve the rights and obligations of Members under the covered agreements, and to clarify the 
existing provisions of those agreements in accordance with customary rules of interpretation of 
public internation al law .224  
The Panel observes that the parties affirm these fundamental principles regarding the 
assessment of the complainant's claims and the United  States ' invocation of Article  XXI(b) of the 
GATT  1994 under the rules and procedures of the DSU.225 However, the part ies dispute the 
application of these principles to the matter before the Panel, particularly with respect to the 
applicability of Article  XIX of the GATT  1994 and the Agreement on Safeguards to the measures at 
issue, and the relationship between those disc iplines and Article  XXI(b) of the GATT  1994. Regarding 
the United  States ' invocation of Article  XXI(b), the parties further dispute the extent to which the 
terms of this provision reserve discretion to the invoking Member taking action that it considers 
necessary for the protection of its essential security interests, as well as the applicability of this 
 
218 United  States ' first written submission , para.  183. 
219 United  States ' first written submission , para.  185. The United  States  submits that "'jurisdiction' can 
be defined as the extent of power of the Panel under the DSU to exercise its judicial author ity or decide a 
particular case", while "'justiciability', by contrast, relates to whether a matter is appropriate or suitable for 
adjudication by a court, or in this context, whether an issue is subject to findings by the Panel under the DSU." 
(Ibid.  para. 183). 
220 United  States ' first written submission , para.  185. The United  States  further argues that "the self -
judging text included in Article  XXI" reflects a recognition that "issues of essential security are inherently 
political in nature, and there are no legal criteria by which a Member's consideration of its essential security 
interests can be objectively determined". (Ibid.).  
221 United  States ' response to Panel question Nos. 26 -29.  
222 See United  States ' response to Panel question No.  54 (arguing that " it is not the political nature of 
the issues covered under Article  XXI(b) that lead to an interpretation that the provision is self -judging " but 
rather "[i]t is the text of Article  XXI(b) that establishes its self -judging nature"); see also United  States ' 
opening statement at the first meeting of the Panel, paras.  3-4 and 49.  
223 See section 7.8 below.  
224 See Appellate  Body Reports, Japan – Alcoholic Beverages II , para.  31; EC – Computer Equipment , 
para. 82; Panel  Report , US – Section  301 Trade Act , para.  7.75.  
225 See e.g. United  States' response to Panel question No.  25 ("the Panel 's function is to objectively 
assess the matter before it by interpreting Article  XXI(b) in accordance with the customary rules of 
interpretation" ); China's response to Panel question No.  26.  WT/DS544/R  
 
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  provision to the challenged measures based on the arguments and evidence submitted in these 
proceedings.  
The Panel is required under the DSU to assess the se disputed issues in an objective manner  
and to make findings on the basis of that assessment that will assist the DSB in making the 
recommendations or rulings provided for in the covered agreements. In furtherance of this mandate, 
the Panel will examine the matter within its terms of reference by assessing the a pplicability of and 
conformity with the relevant provisions of the GATT  1994 and the Agreement on Safeguards , based 
on the interpretive principles of Article  3.2 of the DSU  and the arguments and evidence presented 
by the parties. As prescribed by Article  12.7 of the DSU, the Panel will set out its relevant findings 
of fact, the applicability of relevant provisions, and the basic rationale behind any findings and 
recommendati ons that it makes.  
7.2  Order of analysis  
In considering the appropriate order of analysis of the issues outlined above, the Panel has 
discretion to structure its analysis taking into account the specific measures, claims, arguments , and 
relevant provisions  at issue.226 Having considered the arguments presented by the parties in this 
dispute227, the Panel will first address issues concerning its terms of reference and the identification 
of the measures at issue. Following this determination of the measures within its terms of reference, 
the Panel will examine the complainant's claims that the measures are inconsistent with certain 
provisions of the covered agreements.  
In principle, the obligations set forth in the WTO covered agreements apply cumulatively.228 In 
this dispute, t he parties disagree as to whether the WTO rules on safeguards set forth in Article  XIX 
of the GATT  1994 and the Agreement on Safeguards apply to the measures at issue , and the 
complainant raises other claims under the GATT  1994 which are indepe ndent of those contested 
issues of applicability . Taking these circumstances into account, along with the operation of the 
measures at issue  and the manner in which the parties have presented their argument s, the Panel 
considers it appropriate to begin its assessment with the claims under Articles I:1, II:1, and X:3 of 
the GATT  1994.  
The Panel will first assess the consistency of the relevant measures with Article  II:1 of the 
GATT  1994 and the relevant commitments in the United  States ' Schedule of Concessi ons. The  Panel 
will then assess the claims under Article  I:1 of the GATT  1994 concerning most-favoured -nation 
treatment . The Panel will next address the claims under Article  X:3 of the GATT  1994 concerning 
the administration of measures. The Panel will the n assess the remainder of the complainant's claims 
under Article  XIX of the GATT  1994 and the Agreement on Safeguards , including the parties' 
disagreement as to the applicability of this provision and agreement to the measures at issue.  
The Panel will next address the United  States ' invocation of Article  XXI(b) of the GATT  1994 
in relation to any measures falling within the Panel's terms of reference found to be inconsistent 
with provisions of the covered agreements. The Panel will assess  the arguments and evidence 
 
226 See Appellate  Body Reports, Canada – Wheat Exports and Grain Imports , para.  126; US – COOL 
(Article  21.5 – Canada and Mexico) , para.  5.229; Panel  Report s, India – Solar Cells , paras.  7.41-7.42; Russia – 
Pigs (EU), para.  7.30. In disputes involving security exc eptions under Article  XXI(b) of the GATT  1994 and 
Article  73 of the TRIPS  Agreement , previous panels have exercised discretion regarding the order of analysis 
based on their consideration of the specific circumstances of the dispute, including arguments made by the 
parties and other relevant provisions at issue. (See Panel  Report s, Russia – Traffic in Transit , paras.  7.20-7.26; 
Saudi Arabia – IPRs, paras.  7.1-7.3). 
227 While not bound by the presentation of claims and arguments by the parties, the  Panel notes that 
the parties have taken different views on the appropriate order of analysis of the issues in this dispute. The 
complainant considers that the Panel should commence with examination of the claims under the Agreement 
on Safeguards and Artic le XIX of the GATT  1994, followed by other claims under the GATT  1994, before turning 
to the United  States ' invocation of Article  XXI(b). The United  States  maintains that the Panel should begin by 
addressing Article  XXI(b) as the invocation of this provisi on means that there are no findings that would assist 
the DSB in making recommendations or giving rulings as to the complainant's claims. ( United  States ' response 
to Panel question Nos. 21 -23). 
228 The Panel is also mindful that there may be circumstances in  disputes where more than one covered 
agreement applies and it is appropriate to begin the analysis with p rovision s from an agreement that "deals 
specifically, and in detail" with the measures at issue. (See  Appellate  Body Report s, Brazil – Desiccated 
Coconut, pp. 12-13; Canada – Periodicals , p. 19; and EC – Bananas III , para.  204; Panel  Report s, Australia – 
Tobacco Plain Packaging , paras.  7.76-7.79; US – Customs Bond Directive , paras.  7.170 -7.171) . WT/DS544/R  
 
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  submitted by the parties in relation to the measures at issue beginning with the parties' 
disagreement as to the meaning of the terms of Article  XXI(b) of the GATT  1994 interpreted in 
accordance with Article  3.2 of the DSU and t he customary rules of interpretation of public 
international law. On the basis of this assessment, the Panel will provide its findings and 
recommendations in accordance with the DSU.  
7.3  Terms of reference and measures at issue  
Introduction  
In this section, the Panel will  examine issues raised by the parties relating to Article  6.2 of 
the DSU, which provides in relevant part:  
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.  
The parties have raised a number of issues relating to the requirements of Article  6.2 of the 
DSU and the Panel's terms of  reference.229 Specifically, China argues that the Panel's terms of 
reference include the additional import duties imposed on derivative steel and aluminium products 
after the Panel's establishment and the country -specific exemptions granted from those duti es.230 
The United  States  argues that the duties on derivative products did not exist at the time of the 
Panel's establishment and thus fall outside the Panel's terms of reference.231   
The Panel will accordingly examine whether  it can make findings and recom mendations on 
the duties applicable to derivative steel and aluminium products and the related exemptions.  
Additional d uties on derivative steel and aluminium products and the corresponding 
country exemptions  
On 24 January  2020, the US President  issued Presidential Proclamation 9980  under the 
authority granted by Section  232.232 Presidential Proclamation 9980 introduced  additional duties of 
25% on derivative steel products and 10%  on derivative aluminium products with effect from 
8 February  2020.233 This Presidential Proclamation also exempted  from these duties: (a) derivative 
steel products from Australia, Argentina, Brazil, the Republic of Korea , Canada, and Mexico; and (b) 
derivative aluminium produc ts from Australia, Argentina, Canada, and Mexic o.234 
China requests the Panel to include the additional duties and corresponding country 
exemptions imposed by Presidential  Proclamation 9980  in its terms of reference .235 According to 
China, Presidential Proclamation 9980  falls within the scope of China's panel request as a related 
measure that supplement s the prior measures imposed on steel and aluminium products.236 In 
particular, China considers that the duties on derivative steel and aluminium products amend the 
scope of the initial import duties on steel and alumin ium products by extending the initial duties to 
 
229 In addition to the issues discussed in this section, the parties also dispute whether China's panel 
request adequately identifies measures concerning the  administration of the product exclusion process . As the 
Panel declines to make findings on the claims  concerning the  administration of the product exclusion process , 
the Panel does not  find it necessary to  further address whether measures related to those claims are within its 
terms of reference. See section  7.6 below .  
230 See section 2.3 above.  While China initially argued that "[a]ny exclusion process that may be 
established in relation to derivative steel articles … and any exclusions granted pursuant to that process" would 
also fall within the Panel's terms of reference, it subsequently clari fied that it was not challenging any 
product -specific exclusions that may be granted in relation to the additional import duties on derivative 
products . (See China's response to Panel question No.  2.a, fns  25 and 26 , and China's second written 
submission, para. 119, fn  71). 
231 United  States ' response  to Panel question No.  87. 
232 Presidential Proclamation 9980, ( Exhibit CHN-40 and US A-225), pp. 5281 and 5283.  
233 Presidential Proclamation 9980, ( Exhibit CHN -40 and USA -225), p. 5283.  
234 Presidential Proclamation 9 980, ( Exhibit CHN -40 and USA -225), p. 5283.  
235 China's second written submission, para.  119; response to Panel question No.  86.  
236 China's second written submission, para.  123. WT/DS544/R  
 
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  derivative products .237 The United  States  notes that Presidential Proclamation 9980 was issued more 
than a year after the establishment of the Panel, and therefore, the duties on derivative products 
did not exist at the time of the Panel's establishment, were not and could not have been identified 
in China's panel request, and fall outside the Panel's terms of reference.238   
The Panel begins by noting that  the measures within a panel's terms of reference are generally 
those in existence at the time of the establishment of the panel . This does not preclude a panel, in 
certain circumstances, from reviewing measures enacted  or modified  after its establishment , taking 
into account the specific terms used in a panel request and in light of the aim of the dispute 
settlement mechanism to provide a positive solution to the dispute .239 In assisting the DSB in making 
its recommendations, a panel may review measure s that come into existence after panel 
establishment that bear  a close relationship to  measure s described in the panel request.240 The Panel 
will thus assess the relationship between the measures identified in China's panel request and the 
additional duties on de rivative products  imposed by Presidential Proclamation 9980, including the 
corresponding exemptions set out therein.  
In its panel request, China challenges the "25 percent  and 10  percent  of additional import 
duty respectively on certain steel products and  aluminum products , from all countries except 
Canada , Mexico, Australia , Argentina, Korea, Brazil and the European Union ".241 China describes 
these  duties  and exemptions as "actions on the importation of certain steel products and aluminium 
products" .242 China's panel request also states that the measures at  issue include, but are not limited 
to, a number of  instruments of the United  States  in relation to the previously referenced actions on 
the importation of certain steel and aluminium produ cts.243 Among those instruments are 
Presidential Proclamations 9704 and 9705 and the Steel and Aluminium Report s.244 China's  panel 
request further states that it "also covers any amendments, supplements, extensions, replacement 
measures, renewal measures, re lated measures, or implementing measures".245  
The Panel  notes that Presidential Proclamation 9980 explicitly refers to the Steel and 
Aluminium Reports and earlier Presidential Proclamations 9704 and 9705 on aluminium and steel, 
respectively, in setting out  its legal basis and justification. In particular, Presidential Proclamation 
9980 refers to the direction in Presidential Proclamations 9704 and 9705 to the US Secretary of 
Commerce to "inform [the US President] of any circumstances that in the Secretary's  opinion might 
indicate the need for further action under section 232" .246 The US President decided to " adjust the 
tariffs imposed by previous proclamations to apply to the derivatives of aluminum articles and steel 
articles "247 specifically based on the Secretary's assessments that foreign producers of derivative 
steel and aluminium products "have increased shipments of such articles to the United  States  to 
circumvent the duties on steel and aluminum articles imposed in Presiden tial Proclamations 9704 
and 9705"248 and that " imports of these derivative articles threaten to undermine the actions taken 
to address the risk to the national security of the United  States  found in Presidential Proclamation s 
 
237 China's response to Panel question No.  87.  
238 United  States ' response  to Panel question No.  87. 
239 Articles 3.7 and 11 of the DSU. See also  Appellate  Body Reports, US – Zeroing  (Japan) (Article  21.5 
– Japan) , paras.  121 and 125; EC – Chicken  Cuts, paras.  156-159; and Chile – Price Band System , 
paras.  126-144; Panel  Report s, US – Ripe Olives  from Spain , para.  7.12; US – Washing  Machines , 
paras.  7.248 -7.249; EC – Fasteners (China) , para.  7.34; and Colombia – Ports of Entry, paras.  7.52-7.54. 
240 See Panel  Report s, US – Ripe Olives  from Spain , para.  7.14; Russia – Pigs (EU), para.  7.160; US – 
Carbon Steel , para.  8.11; India – Agricultural Products , para.  7.78-7.80;  EC – Fasteners (China) , para.  7.38; 
Australia – Salmon (Article  21.5 – Canada) , para.  7.10, subpara.  27; and Japan – Film, paras.  10.8-10.9. 
Similarly, previous panels and Appellate  Body reports have considered (a) whether the terms of the panel 
request are broad enough to cover amendments to the measures and (b) whether the measures remain in 
essence the same as those identified in the panel r equest. Appellate  Body Report, Chile – Price Band System , 
paras.  135-139. See also Appellate  Body Reports, US – Zeroing  (EC) (Article  21.5 – EC), paras.  190-191 and 
383-384; EC – Selected Customs Matters , para.  184; EC – Chicken Cuts , paras.  156-161; Panel  Report s, US – 
Ripe Olives  from Spain , para.  7.14; Indonesia  – Chicken , paras.  7.84-7.85; and US – Large Civil Aircraft 
(2nd complaint ) (Article  21.5 – EU), para.  7.524 . 
241 China's panel request, p. 1.  
242 China's panel request, p. 1.  
243 China's panel request , pp. 2-3. 
244 China's panel request, pp. 1-2. See also section 2.2 above.  
245 China's panel request, p. 3.  
246 Presidential Proclamation 9980, ( Exhibit CHN-40 and USA -225), p. 5281.  
247 Presidential Proclamation 9980, ( Exhibit CHN-40 and USA -225), p. 528 3. 
248 Presid ential Proclamation 9980, ( Exhibit CHN -40 and USA -225), p. 5282.  WT/DS544/R  
 
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  9704 and 9705 ".249 In this respe ct, the measures introduced by Presidential Proclamation 9980 have 
a close connection to the instruments  identified in China's panel request.250  
The legal basis for Presidential Proclamation 9980  is Section  232.251 Section  232 in turn 
authorizes the US Pres ident, if he concurs with the findings in the US Secretary of Commerce's 
reports, " to adjust the  imports of [an] article and its derivatives  so that such imports will not threaten 
to impair the national security ".252 In Presidential Proclamation 9980, the U S President notes the 
importance of stabilizing domestic capacity utilization in the steel and aluminium industries at the 
levels recommended by the US Secretary of Commerce in the Steel and Aluminium Reports.253 The 
US President further relies on the Secre tary's conclusion that "reducing imports of the derivative 
articles …  would reduce circumvention and facilitate the adjustment of imports that Proclamation 
9704 and Proclamation 9705, as amended, made to increase domestic capacity utilization".254 This 
further demonstrates the connection between Presidential Proclamation 9980 on derivative products 
and the earlier Presidential Proclamations 9704 and 9705 stemming from Section  232 and the Steel 
and Aluminium Report s.  
The duties and exemptions on derivative steel and aluminium products are also explicitly 
linked to the objectives of the earlier measures taken under Section  232 identified in China's panel 
request. Presidential Proclamation 9980  provides that imports of certain derivative  steel and  
alumin ium products have significantly increased since tariffs and quotas were imposed on certain 
steel and aluminium products, and that the net effect of this increase  has been to "undermine the 
purpose of the proclamations adjusting imports of aluminum and  steel articles to remove the 
threatened impairment of the national security" .255 This Proclamation states that the duties on 
derivative steel and aluminium products are "necessary and appropriate to address circumvention 
that is undermining the effectivene ss of the adjustment of imports made in Proclamation 9704 and 
Proclamation 9705".256 This confirms that Presidential Proclamation 9980 supplements Presidential 
Proclamation s 9704 and 9705  in pursuit of the same objectives under Section  232 based on 
recommendations by the Secretary of Commerce in the Steel and Aluminium Reports .  
For the foregoing reasons, the Panel concludes  that Presidential Proclamation 9980 and the 
actions set out there in, i.e.  the imposition of duties on derivative steel and aluminium products and 
corresponding exemptions, bear a close connection to the earlier measures on steel and aluminium 
that are identified in China's panel request. Moreover, China's panel request was formulated  so as 
to encompass such supplements, extensions , or related measures. The Panel therefore finds that 
these measures  are within its terms of reference.  
Conclusion  
Based on the foregoing and in light of the specific circumstances of the presen t dispute, the 
Panel finds that the additional import duties imposed on derivative steel and aluminium products 
after the Panel's establishment , and the country -specific exemptions granted from those duties , are 
within its terms of reference.  
 
249 Presidential Proclamation 9980, ( Exhibit CHN-40 and US A-225), p. 528 2. 
250 The Panel also notes that Presidential Proclamation 9980 defines its product scope with reference to 
the steel and aluminium articles envisaged in Presidential Proclamations 9704 and 9705. (Presidential 
Proclamation 9980, ( Exhibit CHN-40 and US A-225), p. 5282 ). 
251 Preside ntial Proclamation 9980, ( Exhibit CHN-40 and US A-225), p. 5283 ("Section  232 of the Trade 
Expansion Act of 1962, as amended, authorizes the Presid ent to adjust the imports of an article and its 
derivatives  that are being imported into the United  States  in such quantities or under such circumstances as to 
threaten to impair the national security of the United  States " (emphasis added)).  
252 Section 232, ( Exhibit CHN -1 and USA -1), § 1862( c)(1)(A) . 
253 Presidential Proclamation 9980, ( Exhibit CHN -40 and USA -225), pp. 5281-5282.  
254 Presidential Proclamation 9980, ( Exhibit CHN -40 and USA -225), p. 5282.  
255 Presidential Proclamation 9980, ( Exhibit CHN -40 and USA -225), p. 5282.  
256 Presidential Proclamation 9980, ( Exhibit CHN -40 and USA -225), p. 5283.  WT/DS544/R  
 
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  7.4  Article  II:1 of the GATT  1994  
Introduction  
China  argues that the United  States ' additional import duties on steel and aluminium products 
are in violation of Article  II:1(a) and (b) of the GATT  1994.257 In China's view, the additional duties 
constitute "ordinary customs duties" under Article  II:1(b) and are also effective "on importation".258 
Even if they were not "ordinary customs duties", China considers that these measures would not be 
covered by Article  II:2, and must therefore constitute "other dutie s or charges … imposed on or in 
connection with importation".259 In China's view, such "other duties or charges" would be imposed 
inconsistently with Article  II:1(b) because they were not recorded in the United  States ' Schedule of 
Concessions.260 Finally, Ch ina argues that the measures impose duties in excess of those provided 
for in that Schedule, as the covered products could previously enter the United  States  at rates 
ranging from duty -free to 6.5%, and the additional import duties exceed those bound level s for all 
tariff headings and subheadings covered by the measures.261   
The United  States  has not advanced any arguments or evidence contesting the claims under 
Articles II:1(a) and (b) of the GATT  1994.262  
Article  II:1 of the GATT  1994 provides in relevant  part: 
(a) Each contracting party shall accord to the commerce of the other contracting parties 
treatment no less favourable than that provided for in the appropriate Part of the 
appropriate Schedule annexed to this Agreement.  
(b) The products described in  Part I of the Schedule relating to any contracting party, 
which are the products of territories of other contracting parties, shall, on their 
importation into the territory to which the Schedule relates, and subject to the terms, 
conditions or qualificati ons set forth in that Schedule, be exempt from ordinary customs 
duties in excess of those set forth and provided therein. Such products shall also be 
exempt from all other duties or charges of any kind imposed on or in connection with 
the importation in ex cess of those imposed on the date of this Agreement or those 
directly and mandatorily required to be imposed thereafter by legislation in force in the 
importing territory on that date.  
Additionally, the Understanding on the Interpretation of Article  II:1(b ) of the GATT  1994 
provides in relevant part:  
Members hereby agree as follows:  
1. In order to ensure transparency of the legal rights and obligations deriving from 
paragraph 1(b) of Article  II, the nature and level of any "other duties or charges" levied 
on bound tariff items, as referred to in that provision, shall be recorded in the Schedules 
of concessions annexed to GATT  1994 against the tariff item to which they apply. It is 
understood that such recording does not change the legal character of "other duties or 
charges".  
 
257 China's first wri tten submission, paras.  6, 42, and 151; opening statement at the first meeting of the 
Panel, para.  10; response to Panel question No.  5, paras.  25 and 32; and second written submission, 
para. 129. China's arguments in this respect  include the 50% additional dut y in case of steel imports from 
Türkiye . (See China's first written submission, para.  155). China also considers that the additional import 
duties on derivative steel and aluminium products are inconsistent with Article  II:1. (See China's second 
written submission, paras.  130-134; responses to Panel's questions following the first meeting, Annex  I; and 
comments on the United  States ' response to Panel question No.  87, para.  26).  
258 China's first written submission, paras.  151-152; second written submission, para.  129. 
259 China's first written submission, para.  153. 
260 China's first written submission, para.  154; second written submission, para.  129. 
261 China's first written submission, para.  155.  
262 See United  States ' closing statement at the second meeting of the Panel, para.  7 (indicating that the 
United  States  "has imposed duties on certain steel and aluminum products on a non -MFN basis and in excess 
of the levels set out in its WTO Goods Schedule").  WT/DS544/R  
 
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Article  II:1(a) of the GATT  1994 contains a general prohibition against according treatment 
less favourable to imports than that provided for in a Member's Schedule.263 The first sentence of 
Article  II:1(b) prohibits the imposition of or dinary customs duties on importation in excess of those 
rates set forth in a Member's Schedule.264 The second sentence of Article  II:1(b) prohibits the 
imposition of other duties or charges of any kind on or in connection with importation in excess of 
those imposed on the date of entry into force of the GATT  1994 (or those directly and mandatorily 
required to be imposed thereafter by legislation in force on that date).265 According to the 
Understanding on the Interpretation of Article  II:1(b), the nature  and level of any such "other duties 
or charges" must be recorded in a Member's Schedule.266  
In this dispute, the complainant focuses its arguments on inconsistency with Article  II:1(b) 
and alleges a consequential violation of Article  II:1(a).267 Prior WTO adjudicators have considered 
that Article  II:1(b) prohibits "a specific kind of practice that will always be inconsistent with 
paragraph (a)" because application of duties in excess of what is provided for in a Member's Schedule 
necessarily cons titutes "less favourable" treatment within the meaning of Article  II:1(a).268 Given 
these considerations, the Panel will assess whether the challenged measures result in the imposition 
of duties in excess of what is provided for in the United  States ' Schedu le under Article  II:1(b), and 
thus accord less favourable treatment than that provided for in the Schedule in violation of 
Article  II:1(a).  
The Panel will begin by identifying the concessions and obligations for the relevant products 
in the United  States ' Schedule before turning to the treatment of those products under the 
challenged measures, specifically concerning:  
a. the additional duties of 25% on steel products and 10% on aluminium products;  
b. the additional duty of 50% on steel products from Türkiye ; and  
c. the additional duties of 25% on derivative steel products and 10% on derivative aluminium 
products.269  
Additional duties on steel and aluminium products  
In March 2018, the United  States  imposed additional duties of 25% on steel products and 
10% on alumini um products.270 The following tables identify the steel and aluminium products 
covered by the additional duties and provide a comparative analysis of the United  States ' bound 
rates and its additional duty rates in relation to those products. The United  States' Schedule does 
not record any "other duties or charges" with respect to the steel and aluminium products at issue.271 
 
263 See Appellate  Body Reports, Argentina – Textiles and Apparel, para. 45; Colombia – Textiles, 
para. 5.34. See also Panel  Report s, EC – Chicken Cuts, para. 7.63; EC – IT Products , para.  7.99. 
264 See Appellate  Body Reports, India – Additional Import Duties , para.  150; Colombia – Textiles , 
para. 5.35. 
265 See Appellate  Body Report, India – Additional Import Duties , para. 151; Panel  Report , 
Dominican  Republic  – Safeguard Measures , para.  7.78. 
266 See Panel  Report , Dominican  Republic  – Safeguard Measures , para.  7.78. See also Panel  Report , 
Dominican  Republic  – Import and Sale of Cigarettes , paras.  7.84-7.90. 
267 China's first written submission, para.  150. 
268 Appellate  Body Report, Argentina – Textiles and Apparel , paras.  45-47. See also  Panel  Report s, EC – 
Chicken Cuts , paras.  7.64-7.65; EC – IT Products , para.  7.747 . 
269 See China's first written submission, paras.  6, 42, and 151 -155; opening statement at the first 
meeting of the Panel, para.  10; response to Panel question No.  5, paras.  25 and 32; responses to Panel's 
questions following the first meeting, Annex  I; and second written submission, paras.  129-134. 
270 See Presidential Proclamation 9704 , (Exhibit CHN -6 and  USA-10); Presidential Proclamation 9705 , 
(Exhibit CHN-7 and USA -9). See also section s 2.2.1.1  and 2.2.2.1  for a detailed description . 
271 United  States  Bound Concessions at the HS 6 -digit subheading level . WT/DS544/R  
 
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  Table  2: Steel Products Subject to Additional Duties under Section  232 
Steel Products Subject to Additional Duti es  
 
#  
HTS Code  Rates of customs duties  
Bound rates272 Additional duty  
1. 7206-7215 
0 +25%  2. 7216 (except 
certain 
subheadings)273 
3. 7217-7229 
4. 7301.10.00  
5. 7302.10  
6. 7302.40.00  
7. 7302.90.00  
8. 7304-7306 
Source : United  States  Bound Concessions at the HS 6 -digit subheading level; Presidential Proclamation 9705274 
Table  3: Aluminium Products Subject to Additional Duties under Section  232 
Aluminium Products Subject to Additional Duties  
 
#  
HTS Code  Rates of customs duties  
Bound rates275 Additional duty  
1. 7601 0-2.6%  
+10%  2. 7604 1.5-5% 
3. 7605 2.6-4.2%  
4. 7606 2.7-6.5%  
5. 7607 0-5.8%  
6. 7608 0-5.7%  
7. 7609 5.7%  
8. 7616.99.51  2.5%276 
Source : United  States  Bound Concessions at the HS 6 -digit subheading level ; Presidential Proclamation 9704277 
 
 
272 Pursuant to Chapters 72 and 73 of the HTSUS, the generally applied rate for these products is also 
0% for all relevant subheadings.  
273 Exceptions for subheadings 7216.61.00, 7216.69.00, and 7216.91.00.  
274 See Harmonized Tariff Schedule of the United  States  (2018) Revision 4, (Exhibit  CHN-36); 
United  States  Schedule of Concessions,  (Exhibit  CHN-39); and Presidential Proclamation 9705 , (Exhibit CHN -7 
and USA-9). The Panel additionally relied on data from the WTO's Consolidated Tariff Schedule (CTS) Database 
and online versions of the United  States ' harmonized tariff schedule , https://hts.usitc.gov/current  (accessed 
22 June 2022) . 
275 Pursuant to Chapter 76 of the HTSUS, the generally applied rate for the relevant subheadings are as 
follows: for HTS Code 7601, 0 -2.6%; for HTS Code 7604, 1.5-5%; for HTS Code 7605, 2.6 -4.2%; for HTS 
Code 7606, 2.7-6.5% ; for HTS Code 7607, 0-5.8% ; for HTS Code 7608, 5.7%; for HTS Code 7609, 5.7% ; and 
for HTS Code 7616.99.51 , 2.5%. In respect of HTS Code 7608, tariff lines 7608.10.00  and 7608.20.000,  as 
descr ibed in the United  States ' Schedule, are subdivided into two categories of (A) and (B). The former applies 
to products certified for use in civil aircraft, for which  a bound rate of zero applies. The latter applies to all 
other products, for which a bound rate of 5.7% applies. The HTSUS does not draw a distinction between (A) 
and (B) by simply providing for a rate of 5.7% . 
276 In WTO document WT/Let/493, the heading is elaborated to 7616.99.50 ("Other"), for which the 
duty rate is listed as 2.5%. In the HTSUS , this heading is elaborated to 7616.99.51 ("Other"), for which the 
duty rate is listed as 2.5%. China lists this figure as 0 -2.5%, which appears to be an error. (See China's first 
written submission, para.  155).  
 WT/DS544/R  
 
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The Panel recalls that the first sentence of Article  II:1(b) prohibits the imposition of ordinary 
customs duties on importation in excess of those rates set forth in a Member's Schedule, whereas 
the second sentence prohibits the imposition of all other duties or charges of any kind on or in 
connection with importation except as recorded in a Member's Schedule. To fall within the scope of 
Article  II:1(b), the additional  duties must therefore qualify as either "ordinary customs duties" under 
the first sentence, or "other duties or charges" under the second sentence.  
The term "ordinary customs duties" is not defined in the GATT  1994.278 However, previous 
WTO panels and the Appellate  Body have highlighted several factors that are relevant to this 
characterization. First, the word "ordinary" has been defined as referring to duties "of the usual kind, 
not singular or exceptional"279 or "occurring in regular custom or practice".280 Second, the "customs 
dut[y]" must be imposed "on [the product's] importation"; in other words, the obligation to pay 
must accrue at the moment of or by virtue of the product's importation into the Member's customs 
territory.281 Third, neither the form whi ch the duty takes, nor the basis on which it is calculated, will 
necessarily be dispositive.282 Rather, panels have examined duties by their design and structure283 
and found certain duties and charges, based on their particular features, not to constitute " ordinary 
customs duties" in the sense of Article  II:1(b).284 The term "all other duties or charges of any kind" 
has been interpreted broadly as a residual category, which covers all duties or charges on or in 
connection with importation that are neither "or dinary customs duties" nor the duties or charges 
expressly provided for in Article  II:2 of the GATT  1994.285  
In the present dispute, China argues that the additional duties of 25% on steel products and 
10% on aluminium products constitute "ordinary customs duties" inconsistent with the first sentence 
of Article  II:1(b) of the GATT  1994. In particular, China highlights the following features:  
a. the additional duties are effective upon the importation of those steel and aluminium 
products into the United  States286;  
b. the additional duties are charged at an ad valorem rate287; and  
c. the additional duties are explicitly defined as "ordinary customs dut[ies]" in the relevant 
Presidential Proclamations.288  
 
277 See Harmonized Tariff Schedule of the United States  (2018) Revision 4, (Exhibit  CHN-36); 
United  States  Schedule of Concessions,  (Exhibit  CHN-39); and Presid ential Proclamation 9704 , (Exhibit CHN -6 
and USA-10). The Panel additionally relied on data from the WTO's CTS Database and online versions of the 
United  States ' harmonized tariff schedule, https://hts.usitc.gov/current  (accessed 22  June 2022) . 
278 See Appellate  Body Report, Chile – Price Band System, para. 265. 
279 See Panel  Report , Chile – Price Band System, para. 7.51. 
280 Panel  Report , Dominican  Republic  – Safeguard Measures , para.  7.83.  
281 Appellate  Body Report, China – Auto Parts, para. 158. In Dominican  Republic  – Safeguard Measures , 
the panel thus noted that: "the expression 'ordinary customs duties' in Article  II:1(b) of the GATT  1994 refers 
to duties collected at the border which constitute 'customs duties' in the strict sense of the term" and "this 
expression does not cover all possible extraordinary or exceptional duties collected in customs." (Panel  Report , 
Dominican  Republic  – Safeguard Measures, para. 7.85).  
282 Panel  Report , Dominican  Republic  – Safeguard Measures, para. 7.84 (referring to Appella te Body 
Report, Chile – Price Band System , paras.  216 and 271 -278). See also Appellate  Body Report s, China – Auto 
Parts, para.  162 (noting that " the time at which a charge is collected or paid is not decisive "); EC – Bananas III 
(Article  21.5 – Ecuador II) / EC – Bananas III (Article  21.5 – US), para.  416 (noting in passing that "it is 
unusual that a tariff concession inscribed in a Member's Schedule would be limited in time").  
283 See Panel  Report , Dominican  Republic  – Safeguard Measures, para. 7.85 (noting that to determine 
whether the duties are "ordinary customs duties",  panels " must consider the design and structure of the 
measures concerned"). See also Appellate  Body Report, Argentina – Textiles  and Apparel, para. 55; 
Panel  Report , Russia – Tariff Treatment, para. 7.92.  
284 See e.g. Appellate  Body Reports, Peru – Agricultural Products , paras.  5.70-5.76; Chile – Price Band 
System (Article  21.5 – Argentina) , paras.  167 and 171; Panel  Report s, Peru – Agricultural Products , 
paras.  7.373 -7.374;  Dominican  Republic  – Import and Sale of Cigarettes , para.  7.115.  
285 Panel  Report s, Dominican  Republic  – Import and Sale of Cigarettes , para.  7.113; Dominican  Republic  
– Safeguard Measures , para.  7.79. See also Appellate  Body Report, India – Additional Import Duties , 
para. 157. 
286 China's first written submission, para.  152. 
287 China's first written submission, para.  151. 
288 China's first written submission, para.  151. WT/DS544/R  
 
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In the alternative, China argues that even if th ey were not "ordinary customs duties", the 
additional duties would not be covered by Article  II:2 of the GATT  1994, and must therefore 
constitute "other duties or charges … imposed on or in connection with importation" under the second 
sentence of Article  II:1(b).289 China contends that such "other duties or charges" would be imposed 
inconsistently with Article  II:1(b) because they were not recorded in the United  States ' Schedule of 
Concessions.290 
In the Panel's view, the additional duties at issue bear cert ain features which suggest that 
they may best be characterized as "ordinary customs duties" for the purposes of Article  II:1(b). In 
particular, the additional duties are: (a) levied on all imports of the covered steel and aluminium 
products; (b) calculated  on an ad valorem basis; (c) described as "tariffs" and "ordinary customs 
dut[ies]" in the relevant Presidential Proclamations; and (d) operationalized as "ordinary customs 
dut[ies]" and inscribed in the "Rates of Duty – General" column of the United  State s' tariff 
schedule.291 These duties are also clearly applicable to products "on their importation into the 
territory" of the United  States  in the sense of Article  II:1(b). Moreover, the United  States  has not 
contested China's characterization of the duties under Article  II:1(b), but rather accepts that it has 
imposed duties "in excess of the levels set out in its WTO Goods Schedule".292 Accordingly, the Panel 
considers that the additional duties are "ordinary customs duties" under the first sentence of 
Article II:1(b).  
However, the Panel is cognizant that the additional duties also bear other features which 
reflect the particular process under Section  232 through which they were imposed and maintained. 
First, the additional duties were not inscribed through an  amendment or replacement of the existing 
MFN tariff, but rather through inscription in subchapter III of chapter 99 of the HTSUS, titled 
"Temporary Modifications Established Pursuant to Trade Legislation".293 As such, the duties expressly 
apply "in additio n" to any pre -existing tariffs.294 Second, although the additional duties are generally 
applicable on an MFN basis, they are subject to a number of country exemptions.295 Finally, while 
the additional duties are not expressly imposed for a temporary period, certain aspects of their 
implementation suggest that they may not be intended as permanent adjustment s to the MFN tariff 
rate.  These include the aforementioned inscription in subchapter III of chapter 99, as well as the 
stipulated requirement in the releva nt Presidential Proclamations that "[t]he Secretary shall continue 
to monitor" these duties.296 In the circumstances of this dispute and mindful of these other features, 
the Panel will also consider whether the additional duties as "other duties or charges" would be 
inconsistent with the second sentence of Article  II:1(b).  
As "ordinary customs duties" under Article  II:1(b), it is evident that the additional duties of 
25% on steel products and 10% on aluminium products exceed the United  States ' bound rates of 
0% and 0 -6.5% on steel and aluminium products respectively.297 These products are therefore not 
exempt from ord inary customs duties in excess of those set forth in the United  States ' Schedule, in 
a manner inconsistent with the first sentence of Article  II:1(b).  Moreover, the United  States ' 
Schedule does not record any "other duties or charges" with respect to the s teel and aluminium 
products at issue.298 Even if considered to be "other duties or charges", the additional duties would 
 
289 China's first written submission, para.  153. 
290 China's first written submission, para.  154; second written submission, para.  129. 
291 See Presid ential Proclamation 9704 , (Exhibit CHN -6 and  USA-10); Presidential Proclamation 9705 , 
(Exhibit CHN -7 and USA-9). 
292 See United  States ' closing statement at the second meeting of the Panel, para.  7. 
293 See Presid ential Proclamatio n 9704 , (Exhibit CHN -6 and USA -10), Annex; Presidential Proclamation 
9705, (Exhibit CHN -7 and USA -9), Annex.  
294 See Presidential Proclamation 9704 , (Exhibit CHN -6 and USA -10), p. 11621 ; Presidential 
Proclamation 9705 , (Exhibit CHN -7 and USA -9), p. 11627  (stating that the duties apply " in addition to  any 
other duties, fees, exactions or charges applicable" to the imported articles). ( emphasis added)  
295 See section s 2.2.1.2  and 2.2.2.2  for a detailed description . See also Presidential Proclamation 9704 , 
(Exhibit CHN -6 and USA -10), p. 11620 ; Presidential Proclamation 9705 , (Exhibit CHN -7 and USA -9), p. 11626 . 
See also Presidential Proclamation 9710 , (Exhibit CHN -8 and USA -12); Presidential Proclamation 9711 , (Exhibit 
CHN-9 and USA -11); Presidential Proclamation 9739 , (Exhibit CHN -10 and USA -14); Presidential Proclamation 
9740, (Exhibit CHN -11 and USA -13); Presidential Proclamation 9758 , (Exhibit CHN -12 and USA -16); and 
Presidential Proclamation 9759 , (Exhibit CHN -13 and USA -15). These will be elaborated in more detail in the 
context of China's claim under Article  I:1 of the GATT  1994. 
296 See Presidential Proclamation 9704 , (Exhibit CHN -6 and USA -10); Presidential Proclamation 9705 , 
(Exhibit CHN -7 and U SA-9). 
297 See p ara. 7.30 above.  
298 United  States  Bound Concessions at the HS 6 -digit subheading level . WT/DS544/R  
 
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  therefore exceed those imposed on the entry into force of the GATT  1994 or directly and mandatorily 
required to be imposed thereafter, i n a manner inconsistent with the second sentence of 
Article  II:1(b).  
Accordingly, the Panel considers that the additional duties are inconsistent with the first 
sentence of Article  II:1(b) as "ordinary customs duties" exceeding the United  States ' bound rat es 
for the relevant products. Even if the additional duties were considered "other duties or charges", 
the Panel considers  that these duties would also be inconsistent with the second sentence of 
Article  II:1(b). On either basis, the additional duties on s teel and aluminium products would 
therefore be inconsistent with Article  II:1(b) of the GATT  1994. As the additional duties are 
inconsistent with Article  II:1(b) by exceeding the levels in the United  States ' Schedule, the 
United  States  has necessarily acco rded treatment less favourable than that provided for in its 
Schedule. The Panel therefore concludes that the additional duties are also inconsistent with 
Article  II:1(a) of the GATT  1994. 
Additional duty on steel products from Türkiye  
In August 2018, an additional duty of 50% was imposed on  steel products from Türkiye .299 
As this duty is applicable to the same steel products  as listed in Table 2 above , the United  States ' 
bound rates in respect of th ose products have already been set out in that Table.300 
As previously noted, China argues that the additional duties on steel and aluminium products 
constitute "ordinary customs duties" under the first sentence of Article  II:1(b), and in the alternative, 
"other duties or charges" under the second sentence of Ar ticle II:1(b).301 These arguments include 
the additional duty of 50% on steel products in the case of Türkiye .302 China further argues that 
covered products could previously enter the United  States  at rates ranging from duty -free to 6.5%, 
and for all tariff headings and subheadings covered by the measures, the additional import duties of 
50% in the case of steel products from Türkiye  exceed those bound levels.303  
In the Panel's view, the additional duty on steel products from Türkiye  raises similar issues in 
terms of its characterization as either an "ordinary customs dut[y]" or "other dut[y] or charge[]" 
under Article  II:1(b). For reasons similar to those outlined above304, the Panel considers that the 
additional duty is an "ordinary customs dut[y]" under the first sentence of Article  II:1(b). In 
particular, the additional duty is: (a) levied on all imports of the covered steel products from Türkiye ; 
(b) calculated on an ad valorem basis; (c) described as a "tariff" or "ordinary customs duty" in the 
relevant Pr esidential Proclamations; and (d) operationalized as an "ordinary customs duty" and 
inscribed in the "Rates of Duty – General" column of the United  States ' tariff schedule.305  
As an "ordinary customs dut[y]", it is evident that the additional duty of 50% o n steel products 
from Türkiye  exceeds the United  States ' bound rates for the steel products at issue (0%), in a 
manner inconsistent with the first sentence of Article  II:1(b).  Moreover, even if considered to be 
"other duties or charges" under the second se ntence306, the United  States ' Schedule does not record 
any "other duties or charges" with respect to the steel products at issue.307 On either basis, the 
additional duty on steel products from Türkiye  would therefore be inconsistent with Article  II:1(b) 
of the GATT  1994. As the additional duty on steel products from Türkiye  exceeds the levels set out 
in the United  States ' Schedule, it follows that the United  States  has accorded treatment less 
favourable than that provided for in its Schedule. The Panel theref ore concludes that the additional 
duty on steel products from Türkiye  is also inconsistent with Article  II:1(a) of the GATT  1994. 
 
299 See Presidential Proclamation 9772 , (Exhibit CHN -14). See also section 2.2.1.1  for a detailed 
description . 
300 See p ara. 7.30 above.  
301 See paras.  7.33-7.34 above.  
302 See China's first written submission, para.  155. 
303 China's first writte n submission, para.  155. 
304 See para . 7.35 above.  
305 See Presidential Proclamation 9772 , (Exhibit CHN -14). 
306 These considerations may be relevant in light of other features of the additional duty on steel 
products from Türkiye , such as: (a) being inscribed in subchapter III of chapter 99 of the HTSUS  titled 
"Temporary Modifications Established Pursuant to Trade Legislation "; (b) applying "in addition" to any 
pre-existing duties; and (c) solely applying to Türkiye . (See Presidential Proclamation 9772 , (Exhibit CHN -14)).  
307 United  States  Bound Concessions at the HS 6 -digit subheading level . WT/DS544/R  
 
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Additional duties on derivative steel and aluminium products  
In January 2020, the United  States  announced additional duties of  25% on derivative steel 
and 10% on derivative aluminium products.308 The following tables identify the derivative steel and 
aluminium products covered by these additional duties, and provide a comparative analysis of the 
United  States ' bound rates and its additional duty rates in relation to those products. As with the 
other steel and aluminium products, the United  States ' Schedule similarly does not record any "other 
duties or charges" with respect to these products.309 
Table  4: Derivative Steel Products Subject to Additional Duties under Section  232 
Derivative Steel Products Subject to Additional Duties  
 Rates of customs duties  
# HTS Code  Bound rates310 Additional duty  
1. 7317.00.30  
0-2.5%  +25%  2. 7317.00.5503  
3. 7317.00.5505  
4. 7317.00.5507  
5. 7317.00.5560  
6. 7317.00.5580  
7. 7317.00.6560  
8. 8708.10.30  
9. 8708.29.21  
Source : United  States  Bound Concessions at the HS 6 -digit subheading level; Presidential Proclamation 9980311 
Table  5: Derivative Aluminium Products Subject to Additional Duties under Section  232 
Derivative Aluminium Products Subject to Additional Duties  
 Rates of customs duties  
# HTS Code  Bound rates312 Additional duty  
1. 7614.10.50  
2.5-5.7%  +10%  2. 7614.90.20  
3. 7614.90.40  
4. 7614.90.50  
5. 8708.10.30  
6. 8708.29.21  
Source : United  States  Bound Concessions at the HS 6 -digit subheading level ; Presidential Proclamation 9980313 
 
308 See Presidential Procl amation 9980 , (Exhibit CHN -40 and USA -225).  
309 United  States  Bound Concessions at the HS 6 -digit subheading level . 
310 Pursuant to Chapters 73 and 87 of the HTSUS, the generally applied rate for these products is 
also 0-2.5% for all relevant subheadings.  
311 See Harmonized Tariff Schedule of the United  States  (2020) Revision 5, (Exhibit  CHN-47); 
United  States  Schedule of Concessions pertaining to duties on derivative articles , (Exhibit  CHN-48); and 
Presidential Proclamation 9980 , (Exhibit CHN -40 and USA -225). The Panel additionally relied on data from the 
WTO's CTS Database and online versions of the United  States ' harmonized tariff schedule, 
https://hts.usitc.gov/current  (accessed 22  June 2022) . 
312 Pursuant to Chapters 76 and 87 of the HTSUS, the generally applied rate for these products is 0 -
5.7% for all relevant subheadings. In respect of HTS Code 8708.29.21, WTO document WT/Let/1098 lists this 
sub-heading 8708.29.21 at a bound duty rate of 2.5%. In the HTSUS, sub -heading 8708.29.21 is duty free.  
313 See Harmonized Tariff Schedule of the United  States  (2020) Revision 5, (Exhibit  CHN-47); 
United  States  Schedule of Concessions pertaining to duties on derivative articles , (Exhibit  CHN-48); and 
Presidential  Proclamation 9980 , (Exhibit CHN -40 and USA -225). The Panel additionally relied on data from the 
WTO's CTS Database and online versions of the United  States ' harmonized tariff schedule, 
https://hts.usitc.gov/cu rrent (accessed 22  June 2022) . WT/DS544/R  
 
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China submits that the additional duties on derivative steel and aluminium products constitute 
"ordinary customs duties", as they were also imposed on ad valorem basis and are classified as 
ordinary customs duties in the HTSUS and Presidential Proclamation  9980.314 As in respect of the 
other duties, China argues that the additional duties on derivative products are effective "on 
importation" and exceed the bound rates set out in the United  States ' Schedule.315 Finally, China 
similarly argues that, even if the  Panel were to conclude that they do not constitute "ordinary 
customs duties", these duties would constitute "other duties or charges" prohibited by 
Article  II:1(b).316 
In the Panel's view, the additional duties on derivative steel and aluminium products ra ise 
similar issues in terms of their characterization as either "ordinary customs duties" or "other duties 
or charges" under Article  II:1(b). For reasons similar to those outlined above317, the Panel considers 
that the additional duties on derivative produc ts are "ordinary customs duties" under the first 
sentence of Article  II:1(b). In particular, the additional duties are: (a) levied on all imports of the 
covered derivative steel and aluminium products; (b) calculated on an ad valorem basis; (c) 
described as "tariffs" or "ordinary customs dut[ies]" in the relevant Presidential Proclamations; and 
(d) operationalized as "ordinary customs dut[ies]" and inscribed in the "Rates of Duty – General" 
column of the United  States ' tariff schedule.318 
As "ordinary customs duties", it is evident that the additional duties of 25% on derivative 
steel products and 10% on derivative aluminium products exceed the United  States ' bound rates, 
which range from 0-2.5%  and 2.5 -5.7% for the derivative aluminium and steel products at issue 
respectively, in a manner inconsistent with the first sentence of Article  II:1(b).319 Moreover, ev en if 
considered to be "other duties or charges"  under the second sentence320, the United  States ' Schedule 
does not record any "othe r duties or charges" with respect to the steel and aluminium products at 
issue.321 On either basis, the additional duties on derivative products would therefore be inconsistent 
with Article  II:1(b) of the GATT  1994. As the additional duties on derivative st eel and aluminium 
products exceed the levels set on in the United  States ' Schedule, it follows that the United  States  
has accorded treatment less favourable than that provided for in its Schedule. The Panel therefore 
concludes that the additional duties on  derivative steel and aluminium products are also inconsistent 
with Article  II:1(a) of the GATT  1994.  
Conclusion  
Regarding China's claims under Article  II of the GATT  1994, the Panel concludes that:  
a. the additional duties of 25% on steel products and 10% on aluminium products do not 
accord the treatment provided for in the United  States ' Schedule, contrary to 
Article  II:1(b) and Article  II:1(a) of the GATT  1994; 
b. the additional duty of 50% on steel products from Türkiye  does not accord the treatment 
provide d for in the United  States ' Schedule, contrary to Article  II:1(b) and Article  II:1(a) 
of the GATT  1994; and  
c. the additional duties of 25% on derivative steel products and 10% on derivative aluminium 
products do not accord the treatment provided for in the United  States ' Schedule, contrary 
to Article  II:1(b) and Article  II:1(a) of the GATT  1994. 
 
314 China's second written submission, paras.  130-131. 
315 China's second written submission, para.  133. 
316 China's second written submission, para.  134. 
317 See para.  7.35 above.  
318 See Presidential Proclamation 9980 , (Exhibit CHN -40 and USA -225). 
319 See para.  7.43 above.  
320 These considerations may be relevant in light of other features of the additional duties on derivative 
steel and aluminium products, such as: (a) being inscribed in subchapter III of chapter 99 of the HTSUS  titled 
"Temporary Modifications Established Purs uant to Trade Legislation "; (b) applying "in addition" to any 
pre-existing duties; and (c) being subject to exemptions for certain countries. (See Pr esidential Proclamation 
9980, (Exhibit CHN -40 and USA -225)).  
321 United  States  Bound Concessions at the HS 6 -digit subheading level . WT/DS544/R  
 
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  7.5  Article  I:1 of the GATT  1994  
Introduction  
China  argues that the United  States ' country -specific exemptions to the Section  232 measures 
and related quota agreements are inconsistent with Article  I:1 of the GATT  1994.322 In China's view, 
the country exemptions have been granted  from "customs duties and charges of any kind" under 
Article  I:1.323 China also considers that the imported products at issue are "like products", as where 
measures explicitly discriminate on the basis of origin, "likeness" may be presumed.324 Finally, China  
considers that the United  States  has created a certain category of Members, who can choose to 
negotiate unconditional exemptions or exemptions in exchange for quota agreements.325 As no other 
Members have been permitted to maximize competitive opportunitie s in the same manner, China 
considers that this "advantage" has not been granted "immediately" and "unconditionally" to all 
other Members, in violation of Article  I:1 of the GATT  1994.326  
The United  States  has not advanced any arguments or evidence contest ing the complainant's 
claim under Article  I:1 of the GATT  1994.327  
Article  I:1 of the GATT  1994 provides:  
1. With respect to customs duties and charges of any kind imposed on or in connection 
with importation or exportation or imposed on the international transfer of payments 
for imports or exports, and with respect to the method of levying such duties and 
charges, and with respect to all rules and formalities in connection with importation and 
exportation, and with respect to all matters refe rred to in paragraphs 2 and 4 of 
Article  III,* any advantage, favour, privilege or immunity granted by any Member to 
any product originating in or destined for any other country shall be accorded 
immediately and unconditionally to the like product originat ing in or destined for the 
territories of all other [Members].  
Article  I:1 of the GATT  1994 prohibits, with respect to measures falling within its scope of 
application, discrimination among like products originating in or destined for different countries.328 
The obligation to accord most -favoured -nation treatment as set out in Article  I:1 of the GATT  1994 
has been understood to require equality of competitive opportunities for like imported products from 
any Member.329 
The Panel will proceed by exa mining the challenged measures under Article  I:1 of the 
GATT  1994, specifically concerning:  (a) the country exemptions for steel and aluminium products 
and (b) the country exemptions for derivative steel and aluminium products.330 
 
322 China's first written submission, para.  156. See also China's second written submission, 
paras.  136-137; responses to Panel's questions following the first meeting, Annex  I. 
323 China's first written submission, para.  158. China fu rther considers that the quota agreements 
entered into by Argentina, Brazil, and the Republic of Korea  constitute "rules and formalities in connection with 
importation". (Ibid).  
324 China's first written submission, para.  159. 
325 China's first written submission, paras.  160-163. 
326 China's first written submission, paras.  163-164. 
327 See United  States ' closing statement at the second meeting of the Panel, para.  7 (the United  States  
accepting that it "has imposed duties on certain steel and aluminum produc ts on a non -MFN basis and in 
excess of the levels set out in its WTO Goods Schedule").  
328 Appellate  Body Report, Canada – Autos, para. 84. 
329 See Appellate  Body Report, EC – Seal Products , paras.  5.86-5.87. Under Article  I:1 of the 
GATT  1994, a complainant must demonstrate that: ( a) the measure at issue falls within the scope of 
Article  I:1; ( b) the imported products at issue are "like"; ( c) the measure confers an "advantage, favour, 
privilege or immunity" on any product originating in the territ ory of any country; and ( d) the advantage, 
favour, privilege or immunity granted is not extended "immediately" and "unconditionally" to like products 
originating in the territory of all Members.  (See Appellate  Body Report, EC – Seal Products, para. 5.86).  
330 See China's first written submission, paras.  156-164; second written submission, paras.  136-137; 
and resp onses to Panel's questions following the first meeting, Annex  I. WT/DS544/R  
 
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Country exemptions for ste el and aluminium products  
As described in greater detail above331, in March 2018, the United  States  imposed additional 
import duties of 25% on steel products and 10% on aluminium products.332 At that time, Australia, 
Argentina, Brazil, and the Republic of Ko rea were temporarily exempted from the additional duties 
on both steel and aluminium products.333 By May 2018, the United  States  had agreed to various 
"satisfactory alternative means" with these countries, including: (a) exemptions for steel and 
aluminium p roducts from Australia; and (b) exemptions for steel and aluminium products from 
Argentina, as well as steel products from Brazil and the Republic of Korea , including through the 
alternative of import quotas.334 In China's view, through the creation of thes e country -specific 
exemptions, the United  States  has modified the conditions of competition to the detriment of steel 
and aluminium products imported from all Members aside from Australia, Argentina, Brazil, and the 
Republic of Korea , thus violating Articl e I:1 of the GATT  1994.335 
The Panel recalls that the exemptions in question relate to the additional duties on steel and 
aluminium products, which have been found under Article  II:1(b) of the GATT  1994 to constitute 
"ordinary customs duties" applicable on importation into the territory of the United  States .336 As 
such, they also relate to "customs duties and charges" connected with importation falling within the 
scope of Article  I:1 of the GATT  1994.337  
By design, the country exemptions exclude steel and alu minium products of certain origins 
from the application of the additional duties, conferring differential treatment to exempted products 
in comparison to those subject to the duties. Furthermore, it is undisputed that the additional duties 
apply to all qua lifying products imported into the United  States  and that the relevant country 
exemptions apply to products from select countries (i.e. Australia, Argentina, Brazil, and the Republic 
of Korea ) solely on the basis of origin.338 The United  States  does not contest that the measures 
exempt certain products based exclusively on origin contrary to the obligation to accord 
most-favoured -nation treatment under Article  I:1.339 Therefore, with respect to the imposition of 
customs duties, the country exempt ions accord an "advantage"340 to steel and aluminium products 
from the exempted countries that is not accorded immediately and unconditionally to "like 
products"341 originating in non -exempted countries. The Panel thus concludes that, by granting 
 
331 See section  2.2 above.  
332 See Presidential Proclamation 9704 , (Exhibit CHN -6 and USA -10); Presidential Proclamation 9705 , 
(Exhibit CHN -7 and USA -9). 
333 See Presidential Proclamation 9710 , (Exhibit CHN -8 and USA -12); Presidential Proclamation 9711 , 
(Exhibit CHN -9 and USA -11). 
334 See Presidential Proclamation 9739 , (Exhibit CHN -10 and USA -14); Presidential Proclamation 9740 , 
(Exhibit CHN -11 and USA -13); Presidential Proclamation 9758 , (Exhibit CHN -12 and USA -16); and Pre sidential 
Proclamation 9759 , (Exhibit CHN -13 and USA -15). These exemptions were extended based on the 
United  States ' "security relationship" with these Members. (Ibid).  
335 China's first written submission, paras.  160-164. 
336 Moreover, even if not considered to qualify as "ordinary customs duties", the additional duties would 
in any event be inconsistent with the second sentence of Article  II:1(b) of the GATT  1994 as "other duties or 
charges". See section  7.4 above.  
337 Previous panels have found exemptions from import duties to fall within the scope of Article  I:1 of 
the GATT  1994. (See e.g. Panel  Report s, Canada – Autos, para. 10.16; Indonesia – Autos, paras.  7.3-7.5). 
338 See sections 2.2.1.2  and 2.2.2.2  above . The Panel notes that a "presumption of likeness" has been 
applied in prior disputes i n situations where the only distinguishing factor under the challenged measure was 
the origin of the products.  These previous disputes  suggest that , where a measure makes distinctions 
exclusively on the basis of origin, it will typically not be necessary to conduct a detailed analysis of "likeness"  of 
the relevant products . (See Panel  Report , Russia – Railway Equipment , paras.  7.897 -7.899;  see also 
Panel  Report s, Colombia  – Ports of Entry , paras.  7.355 -7.356; US – Poultry (China) , paras.  7.424 -7.432 ). 
339 See United  States ' closing statement at the second meeting of the Panel, para.  7 (accepting that it 
has imposed duties on certa in steel and aluminium products "on a non -MFN basis").  
340 See Appellate  Body Report, Canada – Autos, para. 79; Panel  Report s, EC – Bananas III, para. 7.239; 
EC – Seal Products, para. 7.595 . Previous panels have found country exemptions conferring duty -free 
treatment to constitute an "advantage" under Article  I:1. (See Panel  Report , EC – Bananas III (Article  21.5 – 
Ecuador  II), paras.  7.152 -7.153. See also  Appellate  Body Report,  EC – Bananas III (Article  21.5 – Ecuador II) / 
EC – Bananas III (Article  21.5 – US), para.  353). 
341 See fn  338 above.  In the specific circumstances of this dispute, including the lack of any rebuttal by 
the United  States , the Panel considers that the challenged  measures apply to "like products"  within the 
meaning of Article  I:1 of the GATT  1994, without the need to conduct a detailed "likeness" analysis.  WT/DS544/R  
 
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  country exe mptions from the additional duties to Australia, Argentina, Brazil, and the Republic of 
Korea , the United  States  acted inconsistently with Article  I:1 of the GATT  1994. 
In the context of its claim under Article  I:1, China also challenges the quota agreemen ts with 
Argentina, Brazil, and the Republic of Korea , to the extent that they afford an alternative to the 
additional duties for the exempted countries.342 The Panel notes that such quotas relate solely to 
countries that are exempted from the additional dut ies, and the existence of such quotas does not 
negate the fact that the products to which they apply are exempted from the additional duties.343 
Given the foregoing finding on the advantage accorded by the exemptions, the Panel does not 
consider it necessar y for the purposes of this dispute to determine whether any particular alternative 
treatment of exempted products from Argentina, Brazil, and the Republic of Korea , including under 
any import quota, would constitute a distinct violation of Article  I:1 of t he GATT  1994. 
Country exemptions for derivative steel and aluminium products  
In January 2020, the United  States  announced additional duties of 25% on derivative steel 
and 10% on derivative aluminium products. It also announced the following exemptions from  these 
duties: (a) exemptions for derivative steel products from Australia, Argentina, Brazil, the Republic 
of Korea , Canada, and Mexico; and (b) exemptions for derivative aluminium products from Australia, 
Argentina, Canada, and Mexico.344 In China's view, by exempting Argentina, Australia, Brazil, the 
Republic of Korea , Canada, and Mexico from the additional duties on derivative aluminium and/or 
steel products, the United  States  has conferred an advantage on products originating within tho se 
Members that it has failed to accord to imports of like derivative products from all other Members, 
including China.345 
The Panel has previously found that the additional duties on derivative products qualify as 
"ordinary customs duties" under Article  II:1(b) of the GATT  1994, and thus similarly considers that 
the country exemptions from these duties relate to "customs duties and charges" in the sense of 
Article  I:1 of the GATT  1994.346 It is also undisputed that these country exemptions apply to products 
from select countries (i.e. Australia, Argentina, Brazil, the Republic of Korea , Canada, and Mexico) 
exclusively on the basis of origin.347 Therefore, with respect to the imposition of customs duties, 
these country exemptions accord an "advantage" to steel and aluminium products from the 
exempted countries that is not accorded immediately and unconditionally to "like products" 
originating in non -exempted countries.348 The Panel thus concludes that, by granting country 
exemptions from the additional duties on derivative products to Australia, Argentina, Brazil, the 
Republic of Korea , Canada, and Mexico, the United  States  acted inconsistently with Article  I:1 of the 
GATT  1994. 
Conclusion  
Regarding China's claims under Article  I of the GATT  1994, the Panel concludes that:  
 
342 See China's first written submission, paras.  156 (referring to the country -specific exemptions and 
"related q uota agreements") and 163 (referring to the United  States  negotiating either "unconditional 
exemptions" or "exemptions in exchange for quota agreements"). The Panel notes  that China has clarified that 
it is not challenging any other conditions which may have been imposed by the United  States  on these 
Members as an alternative to the additional import duties on steel and aluminium products, other than the 
quota agreements. (See China's response to Panel question No.  1). 
343 The Panel further notes  that all the "satisfactory alternative means", regar dless of their specific form, 
were extended by the United  States  on the basis of their "security relationship" with the exempted countries 
and based on the determination that " imports from these countries [would]  no longer threaten to impair the 
national s ecurity ". (See Presidential Proclamation 9710 , (Exhibit CHN -8 and US A-12); Presidential Proclamation 
9711, (Exhibit CHN-9 and USA -11); Presidential P roclamation  9739, (Exhibit CHN -10 and USA-14); Presidential 
Proclamation 9740 , (Exhibit CHN -11 and USA -13); Presidential Proclamation  9758, (Exhibit CHN -12 and USA -
16); and Presidential Proclamation 9759 , (Exhibit CHN-13 and USA -15)). 
344 Presidential Proclamation 9980 , (Exhibit CHN -40 and USA -225). 
345 China's second written submission , para.  137. See also China's response to Panel question No s. 2, 
para. 8, and No.  86, para.  23; and comments on the United  States ' response to Panel question No.  87, 
para. 26. 
346 See section s 7.4.4 and 7.4.5 above.  See also para.  7.54 above.  
347 See para . 7.55 above.  
348 See fns 338 and 340. WT/DS544/R  
 
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  a. the country exemptions for steel and aluminium products confer an advantage to products 
from Australia, Argentina, Brazil, and the Republic of Korea  that has not been accorded 
immediately and unconditionally to like products from all other Members, in a manner 
inconsistent with Article  I:1 of the GATT  1994; and  
b. the country exemptions for derivative steel and aluminium products confer an advantage 
to products from Australia, Argentina, Brazil, the Republic of Korea , Canada, and Mexico 
that ha s not been accorded immediately and unconditionally to like products from all other 
Members, in a manner inconsistent with Article  I:1 of the GATT  1994. 
7.6  Article  X:3 of the GATT  1994  
China  argues that  the United  States ' administration of the product exclusi on process, through 
which relief from the additional duties on steel and aluminium products can be sought, is not 
consistent with Article  X:3(a) of the GATT  1994.349 China notes that the product exclusion process 
permits individuals and organi zations in the  United  States , including US producers, to object to 
exclusion requests submitted by other US producers. China considers that allowing interested parties 
to submit  objections to exclusion requests injects a  significant  risk of partiality in their adjudicat ion. 
China further contends  that this risk has been reali zed as product exclusions requests opposed by 
US steel and aluminium producers are rejected.350 According to China, the differential treatment of 
exclusion requests where an objection is filed does no t meet the requirements of Article  X:3(a).351 
The United  States  has not advanced any arguments or evidence contesting China's claim under 
Article  X:3(a) of the GATT  1994. 
The Panel recalls its findings of inconsistency in relation to the additional duties on steel and 
aluminium under the GATT  1994. The Panel considers that the findings of inconsistency under other 
provisions of the GATT  1994 are sufficient, in the circumstances  of the present dispute , to assist the 
DSB in making the recomm endations or in giving the rulings provided for in the covered agreements  
as required under the DSU.352 In light of these findings, the Panel does not consider it necessary to 
make findings on China's claims relating to the administration of the process for  excluding products 
from duties that have already been found inconsistent with other obligations under the GATT  1994. 
The Panel thus declines to make findings  regarding the claims under Article  X:3(a) of the GATT  1994.   
7.7  Article  XIX of the GATT  1994  and th e Agreement on Safeguards    
Introduction  
China claims that certain measures at issue are safeguard measures and are inconsistent with 
certain obligations under Article  XIX of the GATT  1994 and the Agreement on Safeguards. The 
United  States  disputes the ap plicability of Article  XIX of the GATT  1994 and the Agreement on 
Safeguards to the measures at issue and additionally argues that Article  XXI of the GATT  1994 is a 
defence to the complainant's claims under Article  XIX of the GATT  1994 and the Agreement on 
Safeguards.  
The Panel will first address the parties' disagreement as to the applicability of Article  XIX of 
the GATT  1994 and the Agreement on Safeguards to the measures at issue. In doing so, the Panel 
will address specific issues of interpretation conte sted by the parties in accordance with Article  3.2 
of the DSU and customary rules of interpretation of public international law. The Panel will then 
assess the evidence and arguments submitted by the parties in relation to the relevant measures at 
 
349 China's response to Panel question No.  2.b and 2.d ; see also first written submission, para.  172. 
350 China's first written submission, paras.  172-173 (referring to Congressional Research Service, 
Section 232 Investigations: Overview and Issues for Congress  (2 April 2019), ( Exhibit CHN -23), p. 10 ).  
351 China's first written submission, para.  174. 
352 See e.g. Appellate  Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , 
paras . 5.189 -5.190 and 5.194; US – Upland Cotton , para.  732. The Panel further notes various instances in 
which previous panels have declined to make findings under Article  X:3 of the GATT  1994 based on other 
findings of inconsistenc y concerning the underlying measure being administered, including duties in excess of 
the bound rates in a Member's Schedule of Concessions. (See Panel  Report s, Peru – Agricultural Products, 
para. 7.501; Argentina – Import Measures , para.  6.498; Indonesia – Autos, para. 14.152; and Russia – 
Railway Equipment, para. 7.939).  WT/DS544/R  
 
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  issue in  light of the conclusions reached regarding the interpretation of Article  XIX of the GATT  1994 
and the Agreement on Safeguards.  
Interpretation  of Article  XIX of the GATT  1994  and the Agreement on Safeguards in 
accordance with Article  3.2 of the DSU  
Article  XIX of the GATT  1994 is entitled "Emergency Action on Imports of Particular Products" 
and provides in relevant part:  
1. (a) If, as a result of unforeseen developments and of the effect of the obligations 
incurred by a contracting party under this Agreement, including tariff concessions, any 
product is being imported into the territory of that contracting party in such increased 
quantities and under such con ditions as to cause or threaten serious injury to domestic 
producers in that territory of like or directly competitive products, the contracting party 
shall be free, in respect of such product, and to the extent and for such time as may be 
necessary to pre vent or remedy such injury, to suspend the obligation in whole or in 
part or to withdraw or modify the concession.  
Article  1 of the Agreement on Safeguards is a "General Provision" and provides:  
This Agreement establishes rules for the application of safeg uard measures which shall 
be understood to mean those measures provided for in Article  XIX of GATT  1994. 
Article  11 of the Agreement on Safeguards contains the following provisions on "Prohibition 
and Elimination of Certain Measures":  
1. (a) A Member shall  not take or seek any emergency action on imports of particular 
products as set forth in Article  XIX of GATT  1994 unless such action conforms with the 
provisions of that Article  applied in accordance with this Agreement.  
(b) Furthermore, a Member shall not  seek, take or maintain any voluntary export 
restraints, orderly marketing arrangements or any other similar measures on the export 
or the import side. [3],[4] These include actions taken by a single Member as well as 
actions under agreements, arrangements and understandings entered into by two or 
more Members. Any such measure in effect on the date of entry into force of the 
WTO Agreement  shall be brought into conformity with this Agreement or phased out in 
accordance with paragraph 2.  
(c) This Agreement do es not apply to measures sought, taken or maintained by a 
Member pursuant to provisions of GATT  1994 other than Article  XIX, and Multilateral 
Trade Agreements in Annex  1A other than this Agreement, or pursuant to protocols and 
agreements or arrangements co ncluded within the framework of GATT  1994. 
3 An import quota applied as a safeguard measure in conformity with the relevant provisions of 
GATT  1994 and this Agreement may, by mutual agreement, be administered by the exporting 
Member. 
4 Examples of similar measures include export moderation, export -price or import -price 
monitoring systems, export or import surveillance, compulsory import cartels and discretionary 
export or import licensing schemes, any of which afford protection.  
 
The Panel notes that a thre shold question presented by the parties' arguments concerns the 
applicability of Article  XIX of the GATT  1994 and the Agreement on Safeguards to the measures at 
issue. China emphasizes the characterization of the measures at issue as safeguards based on 
objective features of the measures at issue.353 The United  States  refers to Article  XXI of the 
GATT  1994 and contends that the Agreement on Safeguards is inapplicable to the measures at issue 
 
353 China's first written submission, paras.  32-83. China specifically argues that the measures at issue 
objectively present the constituent features of safeguard measures under Article  XIX of the GATT  1994. (See 
ibid. (referring to Appellate  Body Report, Indonesia – Iron or Steel Products , para.  5.60)).  WT/DS544/R  
 
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  by virtue of Article  11.1(c) as the measures were "sought, taken or  maintained … pursuant to 
provisions of GATT  1994 other than Article  XIX".354  
The Panel recalls that it is required under Article  11 of the DSU to make an objective 
assessment of the matter before it, including an objective assessment of the facts of the c ase and 
the applicability of and conformity with the relevant covered agreements.355 Moreover, the Panel is 
required to address the parties' disagreement regarding the applicability of the relevant covered 
agreements in accordance with Article  3.2 of the DS U and the customary rules of interpretation of 
public international law.356 The rule of interpretation set out in Article  31(1) of the Vienna  Convention  
forms part of such "customary rules of interpretation of public international law" and provides that 
"[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the 
terms in their context and in the light of its object and purpose."357 Regarding the interpretation of 
treaties authenticated in two or more languages, the customary rules in Article  33 of the 
Vienna  Convention  provide that "[t]he terms of the treaty are presumed to have the same meaning 
in each authentic text " and that in case of a difference between authentic texts "which the application 
of articles 31 and 32 [of the Vienna  Convention ] does not remove, the meaning which best reconciles 
the texts, having regard to the object and purpose of the treaty, shall be  adopted".358 
The Panel notes that the Agreement on Safeguards "establishes rules for the application of 
safeguard measures which shall be understood to mean those measures provided for in Article XIX 
of GATT 1994".359 In this regard, Article 11.1(a) of the Agreement on Safeguards provides that "[a] 
Member shall not take or seek any emergency action on imports of particular products as set forth 
in Article XIX of GATT 1994 unless such action conforms with the provisions of that Article applied 
in accordance w ith this Agreement." Article  11.1(a) is one of three paragraphs under Article  11.1 of 
the Agreement on Safeguards as part of provisions entitled "Prohibition and Elimination of Certain 
Measures" under which Article  11.1(b) prohibits "voluntary export restr aints, orderly marketing 
arrangements or any other similar measures on the export or the import side". Article  11.1(c) refers 
to measures "sought, taken or maintained … pursuant to provisions of GATT  1994 other than 
Article  XIX", to which the Agreement on Safeguards "does not apply".  
According to its express terms, Article  11.1(c) removes certain measures from the scope of 
application of the Agreement on Safeguards, including the rules specified in Article  11.1(a) and the 
prohibition under Article  11.1(b).360 This is supported by the unambiguous reference in 
Article  11.1(c) to the inapplicability of the Agreement on Safeguards as a whole in respect of 
measures "sought, taken or maintained … pursuant to provisions of GATT 1994 other than Article 
XIX". The Pan el notes that the paragraphs of Article  11.1 of the Agreement on Safeguards do not 
contain any terms explicitly indicating the limitation or qualification of any paragraph in relation to 
 
354 United  States ' response to Panel question No s. 77 and 78; see also second written submission, 
section  II.A. 
355 The Panel furthe r notes the principle affirmed in past disputes that panels under the DSU have 
independence in the structure of their analysis and the development of legal reasoning, as well as latitude in 
the evidence on the record relied upon to reach findings that will  assist the DSB. (See e.g. Appellate  Body 
Reports, EC – Hormones , para. 156; EC – Fasteners (China) (Article  21.5 – China) , para.  5.61;  Panel  Report s, 
India – Solar Cells , para.  7.41; EC – Export Subsidies on Sugar  (Australia) , para.  7.121 and fn  437). 
356 See section 7.1 above.  
357 See e.g. Appellate  Body Reports, US – Gasoline , p. 17; India – Patents (US) , para.  46; Argentina – 
Textiles and Apparel , para. 42; US – Carbon Steel , para.  61. The Panel notes the parties' agreement that the 
Panel should be guided by the ordinary meaning of the terms of the Agreement on Safeguards in their context 
and in light of the object and purpose of the agreement. (See United  States ' response to Panel question No.  20 
and China's response to Panel question No.  97. See also United  States ' second written submission, section 
IV.B).  
358 See e.g. Appellate  Body Reports , US – Softwood Lumber IV , para. 59; EC – Bed Linen (Article  21.5 – 
India) , fn 153; US – Upland Cotton , para. 424; and US – Stainless Steel (Mexico) , fn 200.  
359 Article  1 of the Agreement on Safeguards.  
360 The French and Spanish versions of Article  11.1(c) use the terms " ne s'applique pas " and " no es 
aplicable " respectively to denote that the Agreement on Safeguards is inapplicable to " mesures " or " medidas " 
described in that provision. The Panel understands that the parties agree that Article  11.1(c) excludes certain 
measures from the scope of applicat ion of the Agreement on Safeguards, notwithstanding their disagreement 
as to when such measures may be considered to have been "sought, taken or maintained … pursuant to 
provisions of the GATT  1994 other than Article  XIX" within the meaning of Article  11.1(c). (See China's 
response to Panel question No s. 20 and 22; United  States ' response to Panel question No s. 20 and 22 ). WT/DS544/R  
 
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  another.361 In this respect, Article  11.1 does not subordinate any of the paragraphs in relation to 
one another concerning the applicability of the Agreement on Safeguards. The Panel thus considers 
that finding the measures at issue to fall within the scope of Article  11.1(c) would fully address the 
matter within the Panel's  terms of reference under the Agreement on Safeguards as there would be 
no basis to assess claims of inconsistency under an agreement that "does not apply" to the measures 
at issue. The Panel is mindful in this connection of its mandate to make only such f indings under the 
covered agreements as will assist the DSB in this dispute, taking into account the specific measures 
at issue, the evidence and arguments submitted by the parties, and the Panel's overall conclusions 
reached with respect to the matter ref erred to the DSB.362  
In the circumstances of this dispute, the Panel therefore considers that it is appropriate to 
determine whether the measures at issue can be characterized as having been "sought, taken or 
maintained … pursuant to provisions of GATT 199 4 other than Article XIX" within the meaning of 
Article  11.1(c) of the Agreement on Safeguards. The Panel will focus its assessment on the terms of 
Article  11.1(c) of the Agreement on Safeguards, and particularly, the terms "pursuant to" and "other 
than", in their context and in light of the object and purpose of the Agreement on Safeguards.  
Regarding the terms "pursuant to" in Article  11.1(c), China argues that this phrase refers to 
measures that are in conformity with or consistent with provisions of the GATT  1994. As a 
consequence, China  considers that the measures sought, taken or maintained by a Member must 
satisfy the conditions of "provisions of GATT  1994 other than Article  XIX" to be excluded from the 
scope of the Agreement on Safeg uards.363 For the United  States , the expression "pursuant to" is 
different from the terms "in compliance with" or "consistent with", and serves the function of 
"direct[ing] the Panel to the other GATT  1994 provision pursuant to which the measure in question 
was attempted or tried".364  
The Panel will assess the meaning of "pursuant to" as it is used in Article  11.1(c) having 
regard for relevant context and the use of terms in the three authentic language ver sions of the 
Agreement on Safeguards, in accordance with the customary rules of interpretation of public 
international law. The expression "pursuant to" in Article  11.1(c) denotes the existence of a 
relationship between the measures of a Member and provisi ons of the GATT  1994 other than 
Article  XIX.365 The term "pursuant" when used with the preposition "to" may mean "under", "in 
accordance with", "in consequence of", or "as authori zed by".366 Taken in isolation, the terms 
"pursuant to" could potentially accom modate a range of meanings. Within this range of meanings, 
the terms "pursuant to" in the context of Article  11.1(c) could be understood as consistency with 
the requirements of a provision  of the GATT  1994 other than Article  XIX, or a different relationshi p 
that does not require such consistency. For example, a measure could be characterized under 
Article  11.1(c) as being "pursuant to" a provision  in the sense of being sought, taken, or maintained 
under the purview of that provision without necessarily meet ing the requirements of the specific 
terms of such other provision.   
The Panel finds instructive the contrast between "pursuant to" in Article  11.1(c) and terms 
used elsewhere in the Agreement on Safeguards that appear to convey a relationship of consiste ncy 
 
361 The paragraphs of Article  11.1 can be contrasted in this respect with other provisions of the covered 
agreements that explicitly limit  or qualify the scope of that provision by reference to another provision in the 
covered agreements, including within the same article. See e.g.  Article  5.6 of the Agreement on Safeguards 
("Notwithstanding the provisions of paragraph 5 …"); Article  3.3 of the SPS  Agreement  ("Notwithstanding the 
above …"); Article  X:6 of the WTO  Agreement  ("Notwithstanding the other provisions of this Article  …"); 
Article  3.1 of the Agreement on Agriculture ("Subject to the provisions of Article  6 …"); Article  XII:1 of the 
GATT 1994 ("… subject to the provisions of the following paragraphs of this Article"); Article  7.1 of the 
Agreement on Safeguards ("… provided that the pertinent provisions of Articles 8 and 12 are observed").  
362 In the particular circumstances of this dispute, if the Agreement on Safeguards were determined to 
be inapplicable to the measures at issue, the Panel does not consider that there would be anything additional 
under Article  XIX of the GATT  1994 within the Panel's terms of reference on which it could make findings to 
assist the DSB in this matter.  
363 China's response to Panel question No.  20, paras.  60-61. 
364 United  States ' response to Panel question No s. 20 and 96.  
365 Similarly, in the French and Spanish vers ions of Article  11.1(c), the phrases " en vertu de " and " de 
conformidad con " respectively describe the relationship between the measures (" aux mesures " and " las 
medidas ") and provisions of the GATT  1994 other than Article  XIX (" dispositions du GATT de 1994 autres que 
l'article XIX " and " disposiciones del GATT de 1994, aparte del artículo XIX ").  
366 Shorter Oxford English Dictionary , 5th Edition (Oxford University Press, 2003), p. 2411;  Garner's 
Dictionary of Legal Usage, 3rd Edition (Oxford University Press. 2011), p. 737.  WT/DS544/R  
 
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  with the requirements of another provision of the covered agreements. This is particularly evident 
in the other paragraphs of Article  11.1 of the Agreement on Safeguards that provide immediate 
context to the terms of Article  11.1(c) and use the express ions "in accordance with" and "in 
conformity with" other provisions. The obligation for safeguard measures to meet the requirements 
of Article  XIX of the GATT  1994 and the Agreement on Safeguards is expressed in Article  11.1(a) by 
providing that Members' s afeguard measures must " conform [] with the provisions of that 
Article  applied in accordance with  this Agreement".367 Similarly, the elimination of measures 
prohibited under Article  11.1(b) is expressed in the obligation that such measures "shall be brought 
into conformity with  this Agreement or phased out in accordance with " the mandatory timetables 
and requirements set out in Article  11.2.368 These explicit references in Article  11.1 to "conformity" 
and actions "in accordance with" other provisions are compa rable to other uses of these terms in 
the Agreement on Safeguards that similarly appear to denote consistency with the referenced 
requirements.369  
The contrast in meaning between "pursuant to" in Article  11.1(c) and terms expressing a 
standard of consisten cy finds support in the French version of the provision referring to " mesures … 
en vertu de dispositions de GATT de 1994 autre que l'article XIX ". As in the English text, the 
Agreement on Safeguards uses the French terms " conformes " and " conformément " in Articles 
11.1(a) and 11.1(b) for "conforms" and "in accordance with", which similarly appear to indicate 
consistency or conformity with the legal provisions specified in those paragraphs.370 In contrast, the 
French version of Article  11.1(c) for egoes  the te rm "conformément " in favour of " en vertu de ", whose 
dictionary meanings include " en conséquence de " (as a consequence of), " par l'effet de " (by the 
effect of), " par le pouvoir de " (by the power of), and " au nom de " (in the name of or on behalf of).371 
The P anel further notes that the use of the French term " conformément " in various provisions of the 
Agreement on Safeguards corresponds to English references to "conformity" and actions being "in 
accordance with" other provisions.372 The terms of Article  11.1(c)  in both English and French thus 
reflect a departure from terms used in other provisions of the Agreement on Safeguards that appear 
to convey a requirement of conformity or consistency.  
The Panel notes the terminology used in the Spanish version of the Agr eement on Safeguards, 
which in Article  11.1(c) provides that the Agreement does not apply to measures sought, taken or 
maintained " de conformidad con otras disposiciones del GATT de 1994 ". Dictionary meanings of the 
terms " de conformidad con " include " con arreglo a " or "a tenor de " (according to), " en proporción o 
correspondencia a " (in proportion or correspondence to), or " de la misma suerte o manera que " (in 
the same way or manner).373 The Spanish terms " de conformidad con " are also used in the provisions 
referred to above in which the English and French terms use variants of "conformity" or " conformité ", 
as well as "in accordance with" in English, and appear to indicate a requirement of conformity or 
consistency with the other referenced legal provisions. This is notably the case in Articles 11.1(a) 
and (b) where the Spanish text uses similar terms (" conformes " and " de conformidad con ") as those 
used in English and French. The Spanish version of Article  11.1(c) refers to " conformidad con otras 
 
367 Emphasis added.  
368 Emphasis added. See also footnote 3 to Article  11.1(b) of the Agreement on Safeguards ("[a]n 
import quota applied as a safeguard measure in conformity with  the relevant provisions of GATT  1994 and this 
Agreement may, by m utual agreement, be administered by the exporting Member") (emphasis added). The 
indication of consistency or conformity with certain requirements is further supported by the mandatory terms 
"shall" and "must" in Article  11.2 establishing the obligations w ith which a measure must be in conformity or 
accordance.  
369 See e.g. Article  4.1(b) ("'threat of serious injury' shall be understood to mean serious injury that is 
clearly imminent, in accordance with  the provisions of paragraph 2") (emphasis added); Articl e 4.2(c) ("The 
competent authorities shall publish promptly, in accordance with  the provisions of Article  3 …") (emphasis 
added); Article  7.2 ("[t]he period mentioned in paragraph 1  may be extended provided that the competent 
authorities of the importing Member have determined, in conformity with  the procedures set out in Articles 2, 
3, 4 and 5 …") (emphasis added). In prior disputes under the Agreement on Safeguards, the Appellate  Body 
has referred to other provisions in the Agreement on Safeguards establishing requirements with which 
safeguard measures must be in conformity, such as the conditions in Article  2.1 and the requirements of 
Articles 3 and 4. (See Appellate  Body Reports, US – Line Pipe , para.  84; US – Steel Safeguards , para.  264).  
370 See also footnote 3 to Article  11.1(b) of the Agreement on Safeguards (" Un contingent d'importation 
appliqué en tant que mesure de sauvegarde conformément  aux dispositions pertinentes du GATT de  1994 et du 
présent accord pourra, par accord mutuel, être administré par le Membre exportateur "). 
371 Le Petit Robert Dictionnaire de la Langue Fran çaise (2000), p. 2663.  
372 See e.g. Article  4.1(b) (" conformément aux dispositions du paragraphe 2 "); Article  4.2(c) 
("conformément aux dispositions de l'article 3 "); and Article  7.2 (" conformément aux procédures énoncées aux 
articles 2, 3, 4 et 5 "). 
373 Diccionario de la Lengua Española , 22nd Edition  (Real Academia Española, 2001), pp. 420-421.   WT/DS544/R  
 
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  disposiciones  del GATT de 1994 ", unlike the English and French terms in Article  11.1(c) that reflect 
a clear departure from references to "conformity" or being "in accordance with" other legal 
provisions.374 
On balance, these considerations indicate that the terms "purs uant to" in Article  11.1(c) of 
the Agreement on Safeguards do not require consistency with provisions of the GATT  1994 other 
than Article  XIX for a measure to fall under that paragraph. The text of Article  11.1(c) does not make 
any explicit reference to a requirement of conformity with the provisions of GATT  1994 in English or 
French in contrast to other provisions of the Agreement on Safeguards, including those that provide 
immediate context for Article  11.1(c). The use of the French terms " en vertu de " in Article  11.1(c) 
is especially compelling in this regard in signalling a contrast to the term " conformément " and 
indicates a different legal relationship than consistency or conformity with the requirements of a 
provision  of the GATT  1994 other than Article  XIX.  
The comparison of terms in the different language versions is instructive but not in itself 
dispositive regarding the interpretation of Article  11.1(c) of the Agreement on Safeguards in 
accordance with Article  3.2 of the DSU.375 The terms of Article  11.1(c) must be interpreted in 
accordance with their ordinary meaning in their context and in light of the object and purpose of the 
Agreement on Safeguards. Moreover, to the extent that the Spanish text "discloses a difference of 
meanin g" when compared to the text of Article  11.1(c) in English and French, the Panel finds 
guidance in the rule of interpretation in Article  33(4) of the Vienna  Convention  that, if such difference 
cannot be removed by application of Articles 31 and 32 of the V ienna  Convention , the meaning which 
best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.376  
The Panel considers that interpreting the terms "pursuant to" in Article  11.1(c) to refer to 
measures sought, taken, or maintained under the purview of another provision of the GATT  1994, 
without entailing consistency with the requirements of such other provision, accords with the specific 
context in which those terms appear. The terms "pursuant to" in Article  11.1(c) fo rm part of a 
provision  governing the applicability of the Agreement on Safeguards rather than the consistency of 
measures with the rules and requirements of that agreement.377 Accordingly, the nature of the 
relevant inquiry under Article  11.1(c) does not re late to another provision of the GATT  1994 as a 
legal exception or justification for inconsistencies with the Agreement on Safeguards.378 Rather, the 
 
374 The Span ish terms " de conformidad con " are also used in other provisions of the Agreement on 
Safeguards that appear to indicate a standard of consistency across all language versions. (See e.g. 
Article  4.1(b) (" de conformidad con las disposiciones del párrafo 2 "); Article  4.2(c) (" de conformidad con las 
disposiciones del artículo 3 "); and Article  7.2 (" de conformidad con los procedimientos establecidos en los 
artículos 2, 3, 4 y 5 ")). The Panel further notes that the terms " de conformidad con " are translated with some 
variation in English, including provisions in which the corresponding term for " de conformidad con " in the 
English version is "under" within the specific context of the provision in question. (See Article  7.1 ("The period 
shall not exc eed four years, unless it is extended under paragraph 2.") (emphasis added); Article  7.4 ("A 
measure extended under paragraph  2 …") (emphasis added)).  
375 The Panel notes that the terms "pursuant to" appear in various provisions of the Agreement on 
Safeguards for which the corresponding French and Spanish terms reflect the potential range of meanings of 
these terms according to their specific context. For e xample, Article  2.1 provides that a safeguard measure 
may be applied "only if that Member has determined, pursuant to the provisions set out below," various 
conditions for the application of safeguard measures. The context of mandatory conditionality in wh ich 
"pursuant to" appears in Article  2.1 ("may apply a safeguard measure … only if") is reflected in the French and 
Spanish, respectively, as " conformément " and " con arreglo a ". As another example, Article  10 of the 
Agreement on Safeguards refers to "safeg uard measures taken pursuant to Article  XIX of GATT 1947" where 
the corresponding French and Spanish terms (" au titre de " and " al amparo del " respectively) do not appear to 
indicate consistency or conformity.  
376 As noted above, this rule of interpretation f orms part of the "customary rules of interpretation of 
public international law" referred to in Article  3.2 of the DSU. See para.  7.68 above.  
377 See Appellate  Body Report, Indonesia – Iron or Steel Products , para.  5.57 (distinguishing "factors 
pertaining to the legal characterization of a measure for purposes of determining the applicability  of the WTO 
safeguard disciplines" from "the substantive condi tions and procedural requirements that determine the WTO 
consistency  of a safeguard measure") (emphasis original).  
378 The Panel notes in this regard that Article  11.1(c) of the Agreement on Safeguards serves a similar 
role to certain provisions in the Anti -Dumping Agreement and the Agreement on Subsidies and Countervailing 
Measures  (SCM  Agreement ), which allow Members to take measures "under" other provisions of the 
GATT  1994 but do not indicate a requirement of conformity with such other provisions. Moreover, the French 
and Spanish versions of these provisions do not use terms such as " conformément " and " conformidad " but 
rather " au titre " and " al amparo " respectively. (See Ar ticle 18.1 of the Anti -Dumping Agreement, footnote 24 
 WT/DS544/R  
 
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  relevant inquiry under Article  11.1(c) corresponds to the threshold issue of applicability and leaves 
as a separate inquiry whether a measure is consistent with the requirements of such other provision 
"pursuant to" which the measure was sought, taken, or maintained.  
These considerations are also relevant for the interpretation of the terms "other than" in 
Article 11.1(c) of the Agreement on Safeguards. The parties dispute the meaning of these terms 
particularly in relation to their arguments on the characterization of measures as safeguards within 
the meaning of Article  XIX of the GATT  1994 and Article  1 of the  Agreement on Safeguards. In this 
connection, China contends that a measure may possess certain objective features of a safeguard 
measure and, if so, such measure would not be pursuant to a provision  "other than" Article  XIX in 
the sense of Article  11.1(c) .379 In the Panel's view, China's interpretation of the terms "provisions … 
other than" amounts to meaning provisions that are exclusively other than Article  XIX of the 
GATT  1994. The Panel understands this interpretation to mean that the Agreement on Safeg uards 
could  still be applicable to a measure notwithstanding its characterization as being pursuant to 
another  provision of the GATT  1994.  
With respect to the ordinary meaning of the terms "other than", dictionary definitions include 
"besides", "except" or "apart from".380 The Panel notes that all three language versions of 
Article  11.1(c) contain terms that are not qualified by any specification or limitation with respect to 
being "other than" Article  XIX of the GATT  1994. The ordinary meaning of  these terms in their 
context encompasses measures that are pursuant to another provision  of the GATT  1994, and the 
Panel does not find in the text of Article  11.1(c) the imposition of an additional requirement or 
limitation of being exclusively pursuant t o such other provision. This interpretation is consonant with 
the context of the paragraphs of Article  11.1 that together establish the conditions for the 
applicability of the Agreement on Safeguards. The question of applicability is addressed under 
Article 11.1(c) by terms specifying a relationship between a measure and a provision of the 
GATT  1994 "other than" Article  XIX, namely that a measure is "pursuant to" such other relevant 
provision, and providing that the Agreement on Safeguards does not apply to  such measure.381  
The Panel finds support for these conclusions in the object and purpose of the Agreement on 
Safeguards as expressed in its preamble recognizing "the need to clarify and reinforce the disciplines 
of GATT 1994, and specifically those of its Article XIX (Emergency Action on Imports of Particular 
Products), to re -establish multilateral control over safeguards and eliminate measures that escape 
such control". In this regard, the preamble further expresses recognition of the need for "a 
compr ehensive agreement, applicable to all Members and based on the basic principles of 
GATT  1994". An essential corollary of the "multilateral control over safeguards" and elimination of 
"measures that escape such control" under the Agreement on Safeguards is the explicit preservation 
under Article  11.1(c) of the right for Members to adopt measures under legal provisions of the 
GATT  1994 that are part of the "basic principles" affirmed and reinforced by the Agreement on 
Safeguards. The Panel considers significa nt in this regard the placement of Article  11.1(c) in the list 
of paragraphs under Article  11.1 as part of provisions entitled "Prohibition and Elimination of Certain 
Measures". The imposition of obligations to "clarify and reinforce the disciplines of GAT T 1994", as 
notably expressed in Articles 11.1(a) and (b), is explicitly conditioned by the terms of Article  11.1(c) 
on the applicability of the agreement as a whole. The requirement under Article  11.1(c) for a 
 
and Article  32.1 of the SCM  Agreement , footnote 56). At the same time, the Panel notes differences in the 
terminology and structure of Article  11.1(c) of the Agreement on Safeguards compared to these fo otnotes, 
which provide that the particular terms of Article  18.1 of the Anti -Dumping Agreement and Article  32.1 of the 
SCM Agreement  are "not intended to preclude actions under other relevant provisions of GATT  1994". By 
contrast, Article  11.1(c) is in the  main text of the provision and expressly states conditions under which the 
agreement "does not apply". (See Appellate  Body Report, US – Offset Act (Byrd Amendment) , para.  262 
(referring to Appellate  Body Report, US – 1916 Act , para.  123) (describing the " accessory footnotes" as 
"clarifications of the main provisions" on the "specific action" Members are permitted to take against dumping 
or subsidies)).  
379 China's second written submission, para.  30. 
380 The terms of Article  11.1(c) in French and Spanish (" autres que " and " aparte del " respectively) 
similarly mean different from or with the omission of. See Le Petit Robert Dictionnaire de la Langue Francaise 
(2000), pp. 185-186 and Diccionario de la Lengua Española , 22nd Edition  (Real Academia Española, 2001), p. 
120. 
381 In the context of the objective assessment required under Article  11 of the DSU, the relevant 
provision under Article  11.1(c) of the Agreement on Safeguards (i.e. the provision of the GATT  1994 "other 
than" Article  XIX) depends on the spec ific circumstances of the dispute, including the measures and claims at 
issue, legal provisions raised by the parties, as well as the relevant evidence and arguments submitted by the 
parties.  WT/DS544/R  
 
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  measure to be "pursuant to" a provision  "othe r than" Article  XIX of the GATT  1994 thus serves the 
maintenance of a balance of rights and obligations that are in turn based on the terms of such other 
provision.  
The relevant provision of the GATT  1994 other than Article  XIX in this dispute is Article  XXI 
entitled "Security Exceptions", which provides inter alia  that "[n]othing in this Agreement shall be 
construed … to prevent any [Member] from taking any action which it considers necessary for the 
protection of its essential security interests".382 In accordance with the requirements of Article  11 of 
the DSU, the Panel will assess the applicability of the Agreement on Safeguards to the measures at 
issue in light of the foregoing interpretive considerations on Article  11.1(c) as well as the evidence 
and a rguments submitted by the parties in this dispute. Taking into account the case -specific nature 
of the relevant inquiry on applicability rather than conformity, the Panel will identify relevant aspects 
of the design and application of the measures with spe cific reference to their legal characterization 
under Article  11.1(c) of the Agreement on Safeguards. The Panel will give due consideration to all 
relevant evidence in this regard including the domestic law and procedures under which the 
measures were adop ted as well as any relevant notifications or statements to the official bodies of 
the WTO.383  
The Panel takes note of the United  States ' arguments in relation to the meaning of the term 
"sought" in Article  11.1(c) of the Agreement on Safeguards, which are related to the United  States ' 
contention that, based on Article  XIX:2 of the GATT  1994, formal notification of safeguard measures 
to the WTO is a "condition precedent" to the applicability of safeguard disc iplines.384 As detailed 
below, the Panel considers the manner in which the measures were raised before the WTO, including 
notifications to relevant WTO bodies or committees, as part of the assessment of the evidence and 
arguments submitted on all relevant a spects of the measures at issue in this dispute. The Panel does 
not consider it necessary for the purposes of this dispute to address in further detail the 
United  States ' arguments on WTO notification being a "condition precedent" for the applicability of 
safeguard disciplines.     
Finally, the Panel notes that the parties have referred to certain aspects of the negotiating 
history of the Agreement on Safeguards in support of their respective positions. Under Article  32 of 
the Vienna  Convention , recourse to  supplementary means of interpretation, including the 
preparatory work of a treaty, may be had either to confirm the meaning resulting from the 
application of Article  31, or to determine the meaning when the interpretation according to Article  31 
leaves th e meaning ambiguous or obscure or leads to a result which is manifestly absurd or 
unreasonable. The Panel does not consider that the application of Article  31 of the Vienna  Convention  
to the interpretation of Article  11.1(c) of the Agreement on Safeguards leaves the meaning of the 
provision ambiguous or obscure, nor does the Panel find that it leads to a result which is manifestly 
absurd or unreasonable. Nevertheless, the Panel has examined the negotiating history of the 
provision in order to confirm the me aning resulting from the application of Article  31 of the 
Vienna  Convention . As detailed in Appendix  A to this Report , the Panel's review of the negotiating 
 
382 See section 7.8 below.  
383 The Panel notes that the Appellate  Body identified various relevant factors for the determination of 
whether measures constitute safeguard measures under Article  XIX of the GATT  1994. In this dispute, the 
relevant inquiry is directed by the terms of Article  11.1(c) to a provision  other than Article  XIX of the 
GATT  1994. Nevertheless, there is a broad parallel in both contexts of distinguishing questions of legal 
applicability from those  concerning legal consistency and, for the former, making an objective examination of 
the specific measures at issue according to the relevant provision of the GATT  1994 upon which to determine 
the applicability of the Agreement on Safeguards. (See Appella te Body Report, Indonesia – Iron or Steel 
Products , para.  5.60).  
384 United  States ' second written submission, section s IV.B.1  ("Article  11.1(c) Supports That Invocation 
is a Condition Precedent for … a Member's exercise of its right to take action under Article  XIX and Application 
of Safeguards Rules") and IV.B.2 ("Other Provisions of the Agreement on Safeguards Also Support that Notice 
is a Condition Precedent for Action Under Article  XIX"). For the various terms used by the United  States  to 
descri be the "condition precedent" for the applicability of safeguard disciplines, see  United  States ' second 
written submission, para.  134 ("notice is a condition precedent to taking action under Article  XIX");  
paras.  136-137 ("[t]he text of Article  XIX:2 explic itly sets out a requirement to invoke the provision through 
notice as a condition precedent to action under Article  XIX:1… [w]ithout such notice, a Member is not seeking 
legal authority pursuant to Article  XIX");  para. 162 ("notice under Article  XIX:2 is a  fundamental, condition 
precedent to a Member's exercise of its right to take action under Article  XIX and the application of safeguards 
disciplines");  and para. 194 ("invocation through written notice is a condition precedent to a Member's exercise 
of its right to take action under Article  XIX and the application of safeguards rules to that action").  WT/DS544/R  
 
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  history of Article  11.1(c) of the Agreement on Safeguards confirms the conclusions reached by the 
Panel regarding the interpretation of that provision.  
Based on the foregoing, the Panel will assess the applicability of the Agreement on Safeguards 
in this dispute according to whether the measures at issue were sought, taken, or maintained 
pursuant to Art icle XXI of the GATT  1994 within the meaning of Article  11.1(c) of the Agreement on 
Safeguards.   
Assessment of the measures at issue  
The United  States  adopted the measures at issue under Section  232 and the related 
procedures set out in Title 15, Part 705 of the Code of Federal Regulations.385 According to the terms 
of the domestic legislation, Section  232 concerns actions taken by the United  States  for 
"[s]afeguarding national security".386 Moreover, Section  232 authorizes the US Secretary of 
Commerce to inv estigate the effects of imports of an article on US national security387, in consultation 
with the Secretary of Defense and other appropriate officers of the United  States .388 If the Secretary 
of Commerce determines that an article is being imported into the  United  States  in such quantities 
or under such circumstances as to threaten to impair the national security, the US President may 
adjust the imports of that article into the United  States .389 In this respect, Section  232 directs the 
US Secretary of Commerce and the US President to give consideration among other factors to the 
domestic production needed for projected national defen ce and the impact of foreign competition on 
the economic welfare of domestic industries essential to US national security .390  
The US Secretary of Commerce commenced investigations under Section  232 to determine 
the effects of imports of certain steel and aluminium products on US national security in 
April 2017.391 The findings of these investigations were published in January 2018 in the Steel and 
Aluminium Reports, where the US Secretary of Commerce determined that present quantities of 
steel and aluminium imports were "weakening [the United  States '] internal economy" and therefore 
"threaten to impair" its national security.392 According to these reports, rising levels of imports of 
foreign steel and aluminium place at substantial risk the capacity of domestic industries to produce 
steel and aluminium for critical infrastructure and national defen ce393, especially in times of nat ional 
emergencies.394 The reports recommend corrective actions against imports in the form of tariffs and 
quotas with a view to improve domestic capacity utili zation and stabili ze US production at the level 
required for its security needs.395 
The measures at  issue in this dispute on imports of steel and aluminium into the United  States  
are based on the abovementioned findings and recommendations by the US Secretary of 
 
385 See section 2.1 above.  
386 Section 232, ( Exhibit CHN -1 and USA -1), § 1862. Title 15, Part 705 of the Code of Federal 
Regulations sets out the procedures by which the US Department of Commerce commences and conducts an 
investigation "to determine the effect on the national security of the imports of any article". (See Section 232 
regulations , (Exhibit USA-2), § 705.2 ). 
387 Section 232, ( Exhibit CHN -1 and USA -1), § 1862(b)(1)(A).  
388 Section 232, ( Exhibit CHN -1 and USA -1), §§ 1862(b)(2)(A)(i)  and b(2)(A)(ii).  
389 Section 232, ( Exhibit CHN -1 and USA -1), § 1862(c)(1)(A).   
390 Section 232, ( Exhibit CHN -1 and USA -1), § 1862(d); Section 232 regulations, ( Exhibit USA -2), § 
705.4.  
391 Steel Report, ( Exhibit CHN -4 and USA -7), p. 18; Aluminium Report, (Exhibit CHN-5 and USA -8), p. 
18. See also sections 2.1.2 and 2.1.3 above.  
392 Steel Report, ( Exhibit CHN -4 and USA -7), p. 55; Aluminium Report, (Exhibit CHN-5 and USA -8), 
p. 104. 
393 Steel Report, ( Exhibit CHN -4 and USA -7), p. 55; Aluminium Report, (Exhibit CHN-5 and USA -8), 
p. 104.  
394 Steel Report, ( Exhibit CHN -4 and U SA-7), pp. 55-56; Aluminium Report, (Exhibit CHN-5 and USA -8), 
p. 105 (also noting that rising imports have placed at risk the capability of domestic industries to "quickly shift 
production capacity used for commercial products to defense and critical infr astructure production that 
provides the United  States  a surge capability that is vital to national security, especially in an unexpected or 
extended conflict or national emergency").  
395 Aluminium Report, ( Exhibit CHN-5 and USA -8), pp. 104-105. See also Steel Report, ( Exhibit CHN -4 
and USA -7), p. 58 (recommending quotas or tariffs on steel imported into the United  States  to increase 
domestic capacity utilization and to keep the domestic steel industry financially viable and  able to meet US 
national security needs).  WT/DS544/R  
 
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  Commerce .396 The Presidential Proclamations concurring with these findings and recommendation s 
describe the measures as "necessary" and "appropriate" to address the threatened impairment of 
national security.397 Presidential Proclamations 9704 and 9705 providing for additional duties on 
steel and alumin ium imports state that "[t]his relief will … r evive idled facilities, open closed 
[smelters and] mills, preserve necessary skills by hiring new [steel and alumin ium workers], and 
maintain or increase production", which in turn will "reduce [the United  States '] need to rely on 
foreign producers for [steel and alumin ium] and ensure that domestic producers can continue to 
supply all the [steel and alumin ium] necessary f or critical industries and national defen se".398 These 
proclamations further describe the additional duties as "an important first step in ensuring the 
economic viability" of the United  States ' domestic steel and alumin ium industry, without which "the 
indus try will continue to decline, leaving the United  States  at risk of becoming reliant on foreign 
producers … to meet [its] national security needs".399 These Presidential Proclamations thus describe 
the national security objectives that the United  States  seeks to achieve by adopting measures 
against a "high level of imports".400  
The national security considerations expressed in the domestic legal instruments and acts 
underlying the measures at issue are also observable in the application of the additional duties on 
steel and aluminium imports, including their country and product scope. In this regard, Presidential 
Proclamations 9704 and 9705 recogni ze that the United  States  may remove or modify the restriction 
on steel and alumin ium imports from a country if it determines that imports from the country no 
longer threaten to impair its national security.401 The United  States  exempted various countries from 
the additional duties on steel and aluminium imports following such determinations402, based on its 
"important security relationships" and "security, defense, and intelligence partnership[s]" with these 
countries as well as their "shared concern about global excess capacity, a circumstance that is 
contributing to the threatened impairment of [US] nat ional security".403 The Panel also notes that 
the additional duties are applied to products that are determined by the relevant domestic authorities 
of the United  States  to be important for its military systems and critical infrastructure.404  
These consider ations indicate that the measures at issue were designed and expected to 
operate in relation to the United  States ' determination of a threat to its national security under the 
relevant domestic laws. In this regard, the Panel notes several other relevant a spects of the 
measures at issue and their application supporting this conclusion. For example, Presidential 
Proclamations 9740, 9758 and 9759 introduce quotas restricting steel and aluminium imports from 
certain countries to provide "effective, long -term a lternative means" to address their contribution to 
 
396 See e.g. Presidential Proclamation 9704 , (Exhibit CHN -6 and USA -10), p. 11619 and Presidential 
Proclamation 9705 , (Exhibit CHN -7 and USA -9), p. 11626 noting that the US President concurs with the 
Secretary's findings in the Steel an d Aluminium Reports and has considered the recommendations in these 
reports.  
397 Presidential Proclamation 9704 , (Exhibit CHN -6 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHN -7 and USA -9), p. 11626.  
398 Presidential Proclamation 9704 , (Exhibit CHN -6 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHN -7 and USA -9), p. 11626.  
399 Presidential  Proclamation 9704 , (Exhibit CHN -6 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHN -7 and USA -9), pp. 11626 -11627.  
400 Presidential Proclamation 9704 , (Exhibit CHN -6 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHN -7 and USA -9), p. 11626.  
401 Presidential  Proclamation 9704 , (Exhibit CHN -6 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHN -7 and USA -9), p. 11626 (further noting that the United  States  may make corresponding 
adjustments to the additional duties applicable to other countries as its national security interests require).  
402 See sections 2.2.1.2  and 2.2.2.2  above for a list of the exempted countries.  
403 Presidential Proclamation 9704 , (Exhibit CHN -6 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHN -7 and USA -9), p. 11626; Presidential Proclamation 9710 , (Exhibit CHN -8 and USA -12), 
pp. 13355 -13356; Presidential Proclamation 9711 , (Exhibi t CHN -9 and USA -11), pp. 13361-13362.  
404 Steel Report, ( Exhibit CHN -4 and USA -7), Appendix  H and Appendix  I; Aluminium Report, (Exhibit 
CHN-5 and USA -8), pp. 24-39. See also Presidential Proclamation 9704 , (Exhibit CHN -6 and USA -10), p. 11623 
(providing for additional duties on imports of unwrought aluminium; aluminium bars, rods and profiles; 
aluminium wires; aluminium plates, sheets, strips and foil; aluminium tubes, pipes and tube or pipe fittings; 
and a luminium castings and forgings) and Presidential Proclamation 9705 , (Exhibit CHN -7 and USA -9), p. 
11629  (providing for additional duties on imports of flat -rolled steel products; steel bars and rods; steel wire; 
steel sheet piling; steel rails; steel fish -plates and sole plates; steel tubes, pipes and hollow profiles; steel 
ingots; products of stainless steel; and other products of iron or steel). See also Steel Report, ( Exhibit CHN -4 
and USA-7), pp. 21-22; Aluminium Report, (Exhibit CHN-5 and USA -8), p. 20 . WT/DS544/R  
 
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  the threat to national security as determined by the United  States .405 These quotas are applied only 
in respect of countries with which the United  States  has identified "important security 
relationships".406 Presidential Proclamations 9704, 9705, 9776, and 9777 set out a product exclusion 
process to provide relief from the additional duties and import quotas based on "specific national 
security considerations".407 Moreover, the Presidential Proclamations discu ssed above indicate that 
the measures at issue may be modified or removed based on monitoring by the US Secretary of 
Commerce and review of  "the status of [steel and aluminium] imports with respect to national 
security" .408 The Panel also considers relevant the procedures under which the measures were 
adopted and applied, and in particular the consultations carried out with departments of government 
such as the US Department of Defense in relation to certain criteria for det ermining effects of imports 
on national security.409 
The Panel further notes that the national security considerations described above are reflected 
in notifications and statements made by the United  States  before various official bodies of the WTO 
both pri or to and following the adoption of the measures at issue. In a meeting of the WTO Council 
of Goods on 10  November  2017, before completing its Section  232 investigations into steel and 
aluminium imports, the United  States  noted that these investigations "w ere being conducted by the 
Bureau of Industry and Security (BIS), a Department of the US Commerce Agency". The 
United  States  further remarked that the purpose of these investigations was to "determine the effect 
of steel and aluminium imports on US nationa l security, and whether the global excess capacity 
problem in those industries was threatening the ability of the United  States  to meet its national 
security needs".410  
In subsequent discussions at the WTO, the United  States  explicitly referred to Article  XXI of 
the GATT  1994 in connection with the measures on steel and aluminium under Section  232. Shortly 
after Presidential Proclamations 9704 and 9705 introduced the additional duties discussed above, 
the United  States  provided information concerning these proclamations in a meeting of the WTO 
Council for Trade in Goods. At this meeting, the United  States  referred to "the findings and 
recommendations in investigations concerning the impact of steel and aluminium imports on US 
national security" and indicated  that it was providing this information "pursuant to Section  232 of 
the Trade Expansion Act of 1962, as amended, and consistent with the Decision Concerning 
 
405 Presidential Proclamation 9740 , (Exhibit CHN -11 and USA -13), pp. 20683 -20684; Presidential 
Proclamation 9758 , (Exhibit CHN -12 and USA -16), p. 25850; and Presidential Proclamation 9759 , (Exhibit 
CHN-13 and USA -15), pp. 25857 -25858. Moreover, these procl amations follow Presidential Proclamations 9710 
and 9711 discussing the appropriate means to ensure that exemptions from the additional duties do not 
undermine the national security objectives of the duties and noting that without "satisfactory alternative  means 
addressing long -term solutions… the industry will continue to decline, leaving the United  States  at risk of 
becoming reliant on foreign producers of [steel and aluminium] to meet [its] national security needs". (See 
Presidential Proclamation 9710 , (Exhibit CHN -8 and USA -12), pp. 13356 -13357 and Presidential Proclamation 
9711, (Exhibit CHN -9 and USA -11), pp. 13362 -13363 ). 
406 See Presidential Proclamation 9740 , (Exhibit CHN -11 and USA -13), p. 20683; Presidential 
Proclamation 9758 , (Exhibit CHN -12 and USA -16), p. 25849; and Presidential Proclamation 9759 , (Exhibit 
CHN-13 and USA -15), p. 25857.  
407 Presidential Proclamation 9704 , (Exhibit CHN -6 and USA -10), p. 11621; Presidential Proclamation 
9705, (Exhibit CHN -7 and USA -9), p. 11627 ; Presidential Proclamation 9776 , (Exhibit CHN -15 and USA -19), 
p. 45020; and Presidential Proclamation 9777 , (Exhibit CHN -16 and USA -18), p. 45026. See also the March 
Interim Final Rule , (Exhibit CHN -17 and USA -20), p. 12111 and the September Interim Final Rule, (Exhibit 
CHN-18 and USA -21), p. 46058 (explaining that this criterion allows the US Department of Commerce, in 
consultation with other parts of the US Government as warranted, to consider impacts on US national security 
that may result from not appro ving an exclusion and that the demonstrated concern with US national security 
would need to be tangible, clearly explained and would be ultimately determined by the US Government).  
408 Presidential  Proclamation 9704 , (Exhibit CHN -6 and USA -10), pp. 11621 -11622; Presidential 
Proclamation 9705 , (Exhibit CHN -7 and USA -9), p. 11628. See also Presidential  Proclamation 9740 , (Exhibit 
CHN-11 and USA -13), p. 20684; Presidential  Proclamation 9758 , (Exhibit CHN -12 and USA -16), p. 25850; and 
Presidential  Proclamation 97 59, (Exhibit CHN -13 and USA -15), p. 25858. The Panel notes that the measures  
applicable to imports from certain countries have been modified under this authority . (See e.g. Presidential 
Proclamation 9772 , (Exhibit CHN -14) and Presidential Proclamation 9980, (Exhibit CHN -40 and USA -225)). 
409 See Steel Report, ( Exhibit CHN -4 and USA -7), pp. 18-20 and Appendices E -G; Aluminium Report, 
(Exhibit CHN-5 and USA -8), pp. 18-19 and Appendices A -B. See also Presidential Proclamation 9704 , (Exhibit 
CHN-6 and USA -10); Presidential Proclamation  9705, (Exhibit CHN -7 and USA -9); Presidential Proclamation  
9758, (Exhibit CHN -12 and USA -16); and Presidential Proclamation 9759, (Exhibit CHN -13 and USA -15) 
(directing the US Secretary of Commerce to c onsider adjustments to the additional duties and import quotas in 
consultation with the Secretary of Defense).    
410 Council for Trade in Goods, Minutes of the Meeting held on 10  November  2017, G/C/M/130, (Exhibit 
USA-80), pp. 26-27. WT/DS544/R  
 
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  Article  XXI of the General Agreement taken by the GATT Council on 30  November  1982".411 In a 
communi cation shortly thereafter to the Committee on Safeguards, the United  States  responded to 
a request for consultations under Article  12.3 of the Agreement on Safeguards and referred to 
information it had provided to the WTO Council for Trade in Goods "consis tent with the Decision 
Concerning Article  XXI of the General Agreement taken by the GATT Council on 
30 November  1982".412  
In a meeting of the WTO General Council on 8  May 2018, the United  States  referred to "the 
reasons underlying the United  States ' defens e of critical national security interests" and recalled the 
Presidential Proclamations under Section  232 "determining that tariffs are necessary to adjust 
imports of steel and aluminum articles that threaten to impair the national security of the 
United  States". The United  States  further referred at that meeting to having "previously informed 
Members about the proclamations issued by the President pursuant to Section  232 of the Trade 
Expansion Act of 1962, as amended". The United  States  additionally referred to its "statement at 
the Council for Trade in Goods meeting on March 23 – a statement we provided consistent with the 
Decision Concerning Article  XXI of the Genera l Agreement taken by the GATT Council on 
30 November  1982".413 At a meeting of the DSB following the complainant's request for 
establishment of a panel in this dispute, the United  States  referred to the determination that 
"imports of steel and aluminum thre aten to impair U.S. national security".414 
On 28  September  2018, the United  States  notified import quotas on steel products from the 
Republic of Korea , Argentina, and Brazil, and alumin ium products from Argentina to the WTO 
Committee on Market Access. In th is notification, the United  States  listed Article  XXI of the 
GATT  1994 as the "WTO Justification and Grounds for Restriction".415  
Based on the foregoing evidence, the Panel considers that a central aspect of the design and 
application of the measures at is sue is their relation to the United  States ' determination of a threat 
to its national security under the relevant domestic laws. The national security considerations of the 
United  States  are manifest in the application, modification, and removal of the add itional duties, 
quotas, and exemptions discussed above. Moreover, this aspect of the measures was emphasi zed 
and explicitly linked to Article  XXI of the GATT  1994 by the United  States  in a series of notifications 
and statements to various official bodies o f the WTO. The Panel considers significant the indications 
at both the domestic and multilateral levels that the measures at issue related to the United  States ' 
determination of a threat to its national security and the explicit references to Article  XXI o f the 
GATT  1994 as the legal basis under the covered agreements pursuant to which the measures were 
sought, taken, or maintained.416 While the domestic legal status or statements by a Member to 
official WTO bodies are not determinative of the legal characte rization of measures under the covered 
agreements in dispute settlement, the Panel considers such evidence to be relevant within the 
context of an objective assessment under Article  11.1(c) of the Agreement on Safeguards. This is 
particularly so where ther e is evidence contemporaneous with the adoption of the measures that is 
 
411 Council for Trade in Goods, Minutes of the Meeting held on 23 and 26  March  2018, G/C/M/131,  
(Exhibit USA -81), pp. 26-27.  
412 Committee on Safeguards, Communication from the United  States , G/SG/168, (Exhibit USA-82), 
pp. 1-2 and fn  2. 
413 Statement dated 8  May 2018 of the Deputy US Trade Representative and US Permanent 
Representative to the WTO, WTO General Council, (Exhibit USA-83), p. 3  (further noting that the United  States  
did not take action pursuant to Section  201 of the Trade Act of 1974, which is the law  under which the 
United  States  imposes safeguard measures).  
414 Statements dated 29  October  2018, 21  November  2018, and 4  December  2018 of the United  States , 
WTO Dispute Settlement Body , (Exhibit USA-84). The United  States  further stated as follows at this meeting 
with respect to Article  XXI of the GATT  1994 and the measures at issue:  
The United  States  has given detailed explanations that the measures at issue are justified under 
Article  XXI of the GATT  1994. In particular, we have explained that these meas ures are 
necessary to address  the threatened impairment that these imports of steel and aluminum 
articles pose to U.S. national security.  
415 Committee on Market Access, Notification Pursuant to the Decision on Notification Procedures for 
Quantitative Restri ctions (G/L/59/Rev.1), G/MA/QR/N/USA/4, (Exhibit USA-85), p. 6 . 
416 Given the consistent indications both prior and subsequent to the adoption of the measures at issue, 
the Panel finds support for the measures being "sought, taken or maintained" within the meaning of 
Article  11.1(c).  The Panel notes in this regard the disjunctive nature of these requirements and does not 
consider it necessary in the circumstances of this dispute to make separate determinations as to which 
evidence reflects the measures h aving been "sought", "taken", or "maintained" pursuant to a provision  of the 
GATT  1994 other than Article  XIX.  WT/DS544/R  
 
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  confirmed by other relevant evidence of the measures' design and application. In this dispute, the 
features of the measures outlined above indicate that the United  States ' determinatio n of a threat 
to its national security under Section  232 is a central aspect of the measures with respect to their 
legal characterization as being sought, taken, or maintained pursuant to Article  XXI of the 
GATT  1994.417 
Regarding the applicability of Artic le XIX of the GATT  1994 and the Agreement on Safeguards, 
China  refers to the findings in the Steel and Aluminium Reports pertaining to the adverse impact of 
imports on domestic steel and aluminium industries of the United  States . In particular, China 
highlights that the reports identify increased imports of steel and  aluminium to the United  States , 
determine that there was injury to the domestic steel and aluminium industries due to increased 
imports, and examine such injury by reference to factors that are typically associated with a finding 
under Article  4.2(a) of t he Agreement on Safeguards.418  
The Panel notes that the findings in the Steel and Aluminium Reports pertaining to the state 
of the United  States ' domestic steel and aluminium industries, including the decrease in domestic 
production, high import penetratio n, low -capacity utili zation and declining employment, are made 
in the context of the determination by the US Secretary of Commerce that steel and aluminium are 
important to the United  States ' national defen ce requirements and critical infrastructure sector s. 
These reports discuss the displacement of domestic steel and aluminium by imports in relation to 
the risk that the United  States ' domestic industries will be rendered incapable of meeting its national 
security needs, especially in times of national emer gencies. The Steel and Alumin ium Reports also 
recall the direction under Section  232 that the relationship between the weakening of the 
United  States ' internal economy and impairment of its national security shall be determined by 
reference to factors incl uding "any substantial unemployment, decrease in revenues of government, 
loss of skills or investment, or other serious effects".419 The reports recommend measures to 
increase  the capacity utili zation of the United  States ' domestic industries with the specific objective 
of enabling them to meet projected national security needs .420  
Viewed in their context, the findings in the Steel and Aluminium Reports confirm that the 
aspects of the measure s most central to their legal characterization under Article  11.1(c) of the 
Agreement on Safeguards concern the national security considerations as reflected in Section  232 
and reiterated in the relevant domestic legal acts and instruments. The examination in the Steel and 
Aluminium Reports of the state of the domest ic steel and aluminium industries is an element of the 
United  States ' determination of a threat to its national security under the relevant domestic laws. 
The Panel considers that it would be improper to assess such factors in isolation from the threat to 
national security that was determined to exist under Section  232 on the basis of those and other 
factors.  
Conclusion  
In conclusion , the evidence before the Panel in relation to the design and application of the 
measures at issue indicates that the measure s were sought, taken, or maintained pursuant to 
Article  XXI of the GATT  1994. Accordingly, the measures were sought, taken, or maintained pursuant 
 
417 See e.g. Appellate  Body Reports, China – Auto Parts , para.  171; Indonesia – Iron or Steel Products , 
para. 5.60. 
418 China's first written submis sion, section IV .A. 
419 Section 232, ( Exhibit CHN -1 and USA -1), § 1862(d); Section 232 regulations, ( Exhibit USA -2), § 
705.4.  
420 See Aluminium Report, ( Exhibit CHN-5 and USA -8), p. 107 ("import restrictions could help address 
the threat to U.S. national secur ity… [Q]uotas or tariffs would be designed, even after any exemptions (if 
granted), to enable U.S. aluminum producers to utilize an average of 80 percent of their production capacity. 
The quotas and tariffs described below should be sufficient to enable U. S. aluminum producers to operate 
profitably under current market prices for aluminum and will allow them to reopen idled capacity") and 108 ("A 
worldwide quota …would help ensure the viability of those U.S. producers to meet national security needs"). 
See also Steel Report, ( Exhibit CHN -4 and USA -7), p. 58 ("Due to the threat of steel imports to the national 
security, as defined in Section  232, the Secretary recommends that the President take immediate action by 
adjusting the level of imports through quotas  or tariffs on steel imported into the United  States , as well as 
direct additional actions to keep the U.S. steel industry financially viable and able to meet U.S. national 
security needs. The quota or tariff imposed should be sufficient, after accounting for any exclusions, to enable 
the U.S. steel producers to be able to operate at about an 80 percent or better of the industry 's capacity 
utilization rate based on available capacity in 2017").  WT/DS544/R  
 
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  to a provision  of the GATT  1994 other than Article  XIX within the meaning of Article  11.1(c) of the 
Agreement on Safeguards.  
The Panel's assessment of the measures being under the purview of Article  XXI of the 
GATT  1994 is without prejudice to the consistency of the measures with the specific terms and 
requirements of Article  XXI. The Pan el recalls that its conclusions under Article  11.1(c) pertain solely 
to the issue of applicability of the Agreement on Safeguards rather than the consistency of the 
measures at issue with the requirements of the other provision, namely Article  XXI of the 
GATT 1994, pursuant to which the measures were sought, taken, or maintained.  
7.8  Article  XXI(b) of the GATT  1994  
Introduction  
The United  States  invokes Article  XXI(b) of the GATT  1994 in relation to the measures at 
issue as "action[s] which [the United  States ] considers necessary for the protection of its essential 
security interests". The Panel will address the United  States ' invocation of Article  XXI(b) of the 
GATT  1994 in relation to whether the measures found to be inconsistent with Articles I:1  and II:1 
of the GATT  1994 are "actions" falling within the scope of Article  XXI(b) of the GATT  1994.  
The Panel will first address the parties' interpretive disagreement on the extent to which the 
terms of Article  XXI(b) of the GATT  1994 permit review of a Member's in vocation of that provision 
in proceedings under the DSU. In doing so, the Panel will address specific issues of interpretation 
contested by the parties, including the United  States ' arguments as to the "self -judging" nature and 
"non-justiciability" of Arti cle XXI(b) of the GATT  1994, in accordance with Article  3.2 of the DSU and 
customary rules of interpretation of public international law. The Panel will then assess the evidence 
and arguments submitted by the parties in relation to the measures found to be  inconsistent with 
provisions of the GATT  1994 in light of the conclusions reached regarding the interpretation of 
Article  XXI(b) of the GATT  1994.  
Interpretation of Article  XXI(b) of the GATT  1994  in accordance with Article  3.2 of 
the DSU  
Article  XXI of the GATT  1994 is entitled "Security Exceptions" and provides:  
Nothing in this Agreement shall be construed  
(a) to require any contracting party to furnish any information the disclosure of which 
it considers contrary to its essential security interests; or  
(b) to prevent any contracting party from taking any 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 inter national relations; or  
(c) to prevent any contracting party from taking any action in pursuance of its 
obligations under the United Nations Charter for the maintenance of international peace 
and security.  
The United  States  submits that the Panel should lim it its findings in this dispute to 
recogni zing the invocation of Article  XXI(b) because "[t]he text of [the provision], in its context and 
in the light of the agreement's object and purpose, establishes that the exception is self -judging."421 
According to t he United  States , "[t]he self -judging nature of … Article  XXI(b) is demonstrated by 
 
421 United  States ' first written submission , para.  23. WT/DS544/R  
 
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  that provision's reference to actions that the Member 'considers necessary' for the protection of its 
essential security interests."422 Consequently, "the only requirement f or the Member invoking 
Article  XXI is for the Member to consider that a particular action is necessary to protect its essential 
security interests in any of the circumstances identified in Article  XXI(b)."423 The United  States  
maintains that this requiremen t is met "once the Member indicates, in the context of dispute 
settlement, that it has made such a determination" that it "consider[s] one or more of the 
circumstances set forth in Article  XXI(b) to be present".424  
A premise of the United  States ' character ization of Article  XXI(b) as "self -judging" is that, 
based on "the text and grammatical structure" of the provision, "the phrase 'which it considers' 
qualifies all of the terms in the single relative clause that follows the word 'action'".425 According to 
the United  States , this "single relative clause" in Article  XXI(b) "begins with 'which it considers 
necessary' and ends at the end of each subparagraph" and "describes the situation which the 
Member 'considers' to be present when it takes such 'action'".426 The United  States  argues from this 
premise that, "[b]ecause the relative clause describing the action begins with 'which it considers', 
the other elements of this clause are committed to the judgment of the Member taking the action."427 
The United  States  thus posits an "overall grammatical structure" of Article  XXI(b) according to which 
a panel may not "determine, for itself, whether a security interest is 'essential' to the Member in 
question, or whether the circumstances described in one of  the subparagraphs exists".428  
China contests the interpretive and grammatical basis of the United  States ' argument and 
emphasi zes the objective review in dispute settlement proceedings of terms in Article  XXI(b) that 
are not qualified by the phrase "which  it considers".429 China  thus disputes the characterization of 
Article  XXI(b) as "self -judging" and contends that the measures are not justified under this provision 
based on the arguments and evidence before the Panel. In particular, China argues that the 
United  States ' interpretation fails to give effective meaning to the subparagraphs of Article  XXI(b) 
and is incompatible with the requirements of the DSU concerning the independent review of matters 
raised under the covered agreements.430  
The Panel recalls  that it is required to address the United  States ' invocation of Article  XXI(b) 
of the GATT  1994 in accordance with Article  3.2 of the DSU and the customary rules of interpretation 
of public international law.431 A threshold point of interpretive disagreeme nt between the parties is 
the extent to which the terms of Article  XXI(b) of the GATT  1994 permit review of a Member's 
invocation of that provision by a panel established under the DSU. While the parties refer to 
numerous aspects of treaty interpretation i n relation to this question, both parties base their 
positions primarily on the terms of Article  XXI(b) of the GATT  1994 and the rule of interpretation set 
out in Article  31(1) of the Vienna  Convention  that "[a] treaty shall be interpreted in good faith in  
accordance with the ordinary meaning given to the terms in their context and in the light of its object 
and purpose."432 As noted above433, this rule of interpretation forms part of the "customary rules of 
interpretation of public international law" referre d to in Article  3.2 of the DSU.434 Accordingly, the 
Panel will examine the ordinary meaning of the terms of Article  XXI(b) of the GATT  1994 in their 
context and in light of the treaty's object and purpose, focusing on the parties' disagreement as to 
whether  the terms of the provision permit review of its invocation in proceedings under the DSU.  
 
422 United  States ' first written submission , para.  25.  
423 United  States ' response to Panel question No.  33. 
424 United  States ' response to Panel question No. 52.a; see also response to Panel question Nos. 35 and 
38; second written submission, para.  23. 
425 United  States ' second written submission, paras.  7-8; see also ibid . para. 13 ("the ordinary meaning 
of the terms of Article  XXI(b) establishes that, contrary to the complainant's arguments, the word 'considers' 
qualifies all the terms in the chapeau  and the subp aragraph endings of Article  XXI(b)" ).  
426 United  States ' response to Panel question No.  36. 
427 United  States ' second written submission, para.  22; see also response to Panel question Nos. 39 and 
40 ("The text reserves to the Member the judgment as to whether action is necessary in one or more of those 
circumstances for the protection of its essential security interests.").  
428 United  States ' response to Panel question No.  37. 
429 See China's response to  Panel question Nos. 35 -37. 
430 See e.g. China's opening statement at the first meeting of the Panel.  
431 See section 7.1 above.  
432 See China's response to Panel question No.  56; United  States ' response to Panel question No.  56. 
433 See para.  7.68 above. See also Appellate  Body Reports, US – Gasoline , p. 17; India – Patents (US) , 
para. 46; Argentina – Textiles and Apparel , para.  42; US – Carbon Steel , para.  61. 
434 See e.g. Appellate  Body Report, US – Gasoline , p. 17.  WT/DS544/R  
 
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Pursuant to the security exceptions under Article  XXI of the GATT  1994, "[n]othing in this 
Agreement shall be construed to require" a Member "to furnish any informat ion" described under 
paragraph (a) or "to prevent" a Member "from taking any action" described  under paragraphs (b) or 
(c) of that provision. The three paragraphs (a) to (c) are separated by semicolons followed by the 
word "or" and Article  XXI concludes in  a full stop at the end of paragraph (c). Paragraph (b) of 
Article  XXI provides that the "action" that a Member is not prevented from taking is "any action 
which [the Member] considers necessary for the protection of its essential security interests", 
followed by three subparagraphs that are enumerated (i)  to (iii).435 These subparagraphs are 
separated by semicolons and the word "or" appears after the semicolons at the end of paragraph 
(a) and subparagraph (iii)  of Article  XXI(b).436  
In providing for "any action" that "[n]othing in this Agreement shall be construed … to  
prevent", Article  XXI(b) establishes an exception to obligations under other provisions of the 
GATT  1994. The "action" covered by this provision is one that a Member "considers necessary for 
the protection of its essential security interests". Dictionary definitions of the term "consider" include 
to "regard in a certain light or aspect, look upon as" or "think or take to be".437 Under Article  XXI(b), 
a Member must consider that its action is "necessary for" a defined purpose, namely "the protection 
of its e ssential security interests". Dictionary definitions of "interest" include "the relation of being 
involved or concerned as regards potential detriment or (esp.) advantage".438 The relevant interests 
under Article  XXI(b) pertain to "security", which may be d efined as "the condition of being protected 
from or not exposed to danger".439 The description of these security interests as "essential" indicates 
the heightened significance of the security interests that Members are not prevented from taking 
action to pr otect under Article  XXI(b).440 As indicated by the possessive pronoun "its", the relevant 
"security interests" are those of the Member taking action under Article  XXI(b).441 
 
435 The parties have used different terminology to refer to the different parts of Article  XXI, including 
"chapeau ", "subparagraph", and "subparagraph ending". The Panel considers that such terminology is not 
determinative of  the proper interpretation so long as it is consistently applied in describing the provision. ( See 
also China's response to Panel question No.  91; United  States ' response to Panel question No.  91). 
436 The French and Spanish texts are similarly structured wi th minor differences, including a colon at the 
end of paragraph (b) before the three subparagraphs. In addition, the Spanish text contains a colon after the 
opening terms of Article  XXI before paragraph (a), and in the French text the conjunction " ou" appears at the 
beginning of paragraphs (b) and (c).  
437 Shorter Oxford English Dictionary , 5th Edition (Oxford University Press, 2003), p. 493. See also Le 
Petit Robert Dictionnaire de la Langue Francaise (2000), p. 921 (defining " estimer " as " [a]voir une op inion sur " 
(to have an opinion on), " consid érer" (to consider), " croire " (to believe), " regarder " (to regard), or " penser " (to 
think)); Diccionario de la Lengua Española , 22nd Edition  (Real Academia Española, 2001), p. 676 (defining 
"estimar " as " creer" (to believe) or " hacer aprecio y estimación de alguien o de algo " (make appreciation or 
estimation of someone or something)); and The New Shorter Oxford English Dictionary , 4th edn, L. Brown (ed.) 
(Clarendon Press, 1993) , (Exhibit USA -22), p. 485 . 
438 Shorter Oxford English Dictionary , 5th Edition (Oxford University Press, 2003), p. 1400 (also defining 
"interest" as "[a] thing that is of some importance to a person, company, state"). See also Le Petit Robert 
Dictionnaire de la Langue Francaise (2000), p. 1340 ( defining " intérêt " as " [c]e qui importe, ce qui convient 
(en quelque domaine que ce soit) " (what matters or what suits in any domain)); Diccionario de la Lengua 
Española , 22nd Edition  (Real Academia Española, 2001), p. 874 (defining " interés " as " [i]nclina ción del ánimo 
hacia un objeto, una persona, una narración, etc. " (inclination of mind towards an object, a person, a 
narration, etc.)); and The New Shorter Oxford English Dictionary , 4th edn, L. Brown (ed.) (Clarendon Press, 
1993) , (Exhibit USA -22), p. 1393.  
439 Shorter Oxford English Dictionary , 5th Edition (Oxford University Press, 2003), p. 2734. See also Le 
Petit Robert Dictionnaire de la Langue Francaise (2000), p. 2310 (defining " sécurité " as " [s]ituation, état 
tranquille qui résulte de l'absence ré elle de danger " (tranquil situation , state which results from the real 
absence of danger)); Diccionario de la Lengua Española , 22nd Edition  (Real Academia Española, 2001), p. 
1385 (defining " seguridad " as " [c]ualidad de seguro " and " seguro " as " [l]ibre y e xento de todo peligro, daño o 
riesgo " (free and exempt from all danger, damage or risk )); and The New Shorter Oxford English Dictionary , 
4th edn, L. Brown (ed.) (Clarendon Press, 1993) , (Exhibit USA -22), p. 2754 . 
440 Dictionary definitions of "essential" inc lude "[t]hat is such in the absolute or highest sense" and 
"[a]ffecting the essence of anything; significant, important". See also Le Petit Robert Dictionnaire de la Langue 
Francaise (2000), p. 918 (defining " essentiel " as " [q]ui est absolument nécessaire " (absolutely necessary) or  
"[l]e plus important " (the most important)); Diccionario de la Lengua Española , 22nd Edition  (Real Academia 
Española, 2001), p. 655 (defining " esencial " as " [s]ustancial ", "principal ", or " notable "); and The New Shorter 
Oxford English Dictionary , 4th edn, L. Brown (ed.) (Clarendon Press, 1993) , (Exhibit USA-22), p. 852. 
441 The French and Spanish language versions similarly use the possessive pronouns " sa" and " su" 
respectively. See Le Petit Robert Dictionnaire de la Langue  Francaise (2000), p. 2365 and Diccionario de la 
Lengua Española , 22nd Edition  (Real Academia Española, 2001), p. 1424.  WT/DS544/R  
 
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Interpreting the terms of Article  XXI(b) within the structure and context of the pro vision as 
a whole, the Panel notes the textual separation and indentation under Article  XXI of the three 
paragraphs and a similar separation and indentation of the three subparagraphs under paragraph 
(b) of Article  XXI. The introductory terms of Article  XXI ("Nothing in this Agreement shall be 
construed") form the beginning of a sentence with three alternative endings to this sentence in each 
of the paragraphs (a) to (c). Under paragraph (b) of Article  XXI, the enumerated subparagraphs 
(i) to (iii)  are alte rnative endings to the sentence following the terms "any action which it considers 
necessary for the protection of its essential security interests". The punctuation and conjunctions 
linking these various parts of Article  XXI serve the function of listing the alternative endings to the 
provision. These considerations indicate that Article  XXI(b) forms part of, and provides in its own 
subparagraphs, a list of alternative endings to form a sentence. Therefore, Article  XXI(b) is to be 
given meaning as a comple te sentence with the enumerated subparagraphs (i)  to (iii) representing 
alternative endings to the sentence that begins "Nothing in this Agreement shall be construed".  
In continuation of the sentence formed under Article  XXI(b), subparagraphs (i)  and (ii)  begin 
with the terms "relating to" and subparagraph (iii)  begins with the terms "taken in time of". The 
terms "relating to" indicate a connection to the "materials" and "traffic" in subparagraphs (i)  and 
(ii), respectively, while the terms "taken in time o f" indicate a temporal relationship to the 
circumstances in subparagraph (iii). The Panel understands these opening terms in each 
subparagraph to qualify and describe the "action" referred to in Article  XXI(b). This is confirmed in 
the French and Spanish v ersions of Article  XXI(b) in which the corresponding terms (" se rapportant " 
and " appliquées " in French and " relativas " and " aplicadas " in Spanish) qualify nouns that are 
feminine and plural translations of "any action" (" toutes mesures " in French and " todas las medidas " 
in Spanish).442 The relation of the opening terms of each subparagraph to the "action" in 
Article  XXI(b) is further supported by their parallel positioning in the text and their common function 
of linking the remaining terms of each subpa ragraph to those in paragraph (b).  
As a result, Article  XXI(b) applies to actions "relating to" the "materials" and "traffic" 
described in subparagraphs (i)  and (ii), respectively, and to actions "taken in time of" the 
circumstances referred to in subpara graph (iii). These subparagraphs provide alternative endings 
that are an integral part of complete sentences formed under Article  XXI(b). Moreover, there is no 
textual indication that the sentence endings in the subparagraphs of Article  XXI(b) are merely 
illustrative or that Article  XXI(b) may apply to actions other than those described in the 
 
442 The Panel understands that the parties agree that the subparagraphs qualify and relate to the 
"action" in Article  XXI(b), notwithstand ing some disagreement as to the precise basis for this conclusion. The 
United  States  submits in this regard that, under "[t]he most natural reading" of Article  XXI(b), subparagraphs 
(i) and (ii)  relate to a Member's "essential security interests" whereas s ubparagraph (iii)  modifies "action" that 
is "taken" by a Member. At the same time, the United  States  considers that "an interpretation that best 
reconciles the idiosyncratic Spanish text with the English and French texts" is one in which the "action" is 
modified by the terms following it and "all three subparagraph endings refer to 'any action which it considers'."  
(United  States ' response to Panel question Nos. 39 and 40; see also second written submission, para s. 17-19). 
Under this reading, the United  States  argues that the terms of the provision still form a "single relative clause" 
in which the phrase "which it considers" modifies the entirety of the subparagraphs. ( United  States ' response 
to Panel question Nos. 41 -43; United States ' second written submission, paras.  3 and 83 -84; United  States ' 
opening statement at the second meeting of the Panel, paras.  8-9). China contests the grammatical basis of 
the United  States ' argument on a "single relative clause" in Article  XXI(b) and argues that the subparagraphs 
qualify the term "action". (See e.g. China's response to Panel question No s. 40 and 90 ). 
For the purposes of resolving the contested issues of interpretation under Article  XXI(b) in this dispute, 
the Panel considers tha t it is sufficient to conclude that the term "action" is qualified by the subparagraphs, as 
supported by the textual analysis in this section and the concordance of plural and feminine terms in the 
French and Spanish  versions of Article  XXI(b) . The Panel n otes the United  States ' argument on the 
reconciliation of texts under Article  33 of the VCLT relates to its contentions regarding a "single relative clause" 
in Article  XXI(b) and the "self -judging" nature of the provision, which the Panel addresses in this  section in 
accordance with Article  3.2 of the DSU and its mandate to make such findings as will assist the DSB in making 
the recommendations or rulings provided for in the covered agreements. To the extent that the comparison of 
authentic texts discloses any difference in meaning under Article  33(4) of the VCLT, the Panel considers that 
the application of Articles 31 and 32 of the VCLT removes any such difference so as to resolve the contested 
issues of interpretation in this dispute. Accordingly , the Panel does not consider it necessary for the purposes 
of this dispute to address in further detail the parties' arguments on the reconciliation of authentic texts in 
relation to the contested issues of interpretation under Article  XXI(b)  and its application to the measures at 
issue in this dispute . WT/DS544/R  
 
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  subparagraphs.443 These considerations indicate that the subparagraphs are exhaustive in 
establishing the circumstances in which a Member may take the "action which it  considers necessary 
for the protection of its essential security interests" within the meaning of Article  XXI(b).444 
Regarding the discretion of Members taking "action" under Article  XXI(b), the parties 
acknowledge the deference accorded to a Member's judg ment for "any action which it considers 
necessary for the protection of its essential security interests".445 The terms "which it considers" 
denote the consideration or judgment of the Member taking action under Article  XXI(b)446, which is 
further reinforced by providing that the Member shall not be prevented from taking "any" action 
within the terms of the provision.447 Regarding the extent of discretion accorded by the terms "which 
it considers", the parties disagree as to what precisely in Article  XXI(b) is qualified by these terms 
and the implications of such qualification for the review of a Member's invocation of Article  XXI(b) 
in dispute settlement proceedings. In particular, the parties dispute whether the three enumerated 
subparagraphs (i)  to (iii) of Article  XXI(b) are qualified by the terms "which it considers" and, 
relatedly, how to interpret those subparagraphs in accordance with the requirements of the DSU. A 
specific question in this regard is whether, as argued by the United  States  and contested by China448, 
the clause beginning with the relative pronoun "which" constitutes a "single relative clause" that 
includes the terms in subparagraphs (i)  to (iii)  of Article  XXI(b).  
The Panel notes that the United  States  submits certain reference materials on English 
grammar in support of its contention that the subparagraphs of Article  XXI(b) form part of a "single 
relative clause" that is entirely reserved to the judgment of the Member taking action under the 
provision.449 Due to the grammatical dimension of the United  States ' arguments concerning the 
"single relative clause" in Article  XXI(b), the Panel examines the grammatical construction of the 
provision in relation to the contested issue of whether the subparagraphs of Article  XXI(b) are 
qualified by the terms "which it considers". The grammatical considerations raised by the parties 
reinforce the Panel's preceding textual analysis of Article  XXI(b) and are addressed insofar as they 
may inform the assessment of the or dinary meaning of the terms in their context.  
The grammatical analysis of Article  XXI(b) for the purposes of this dispute particularly 
concerns the relationship between various phrases and clauses within the overall sentence structure 
 
443 The subparagraphs of Article  XXI(b) of the GATT  1994 may be contrasted with other provisions of the 
covered agreements containing terms that explicitly indicate the illustrative nature of the p rovisions. (See e.g. 
Article  2.2 of the TBT  Agreement  ("such legitimate objectives are, inter alia , national security requirements 
…"); Article  3.5 of the Anti -Dumping Agreement ("factors which may be relevant [for determining injury] 
include, inter alia , the volume and prices of imports …"); Article  1.1(a)(1) of the SCM  Agreement  ("a direct 
transfer of funds (e.g. grants, loans and equity infusion)"); and Annex  I to the SCM  Agreement  ("Illustrative 
List of Export Subsidies" )).  
444 The Panel notes the agreem ent of parties as to  the exhaustive nature of subparagraphs of 
Article  XXI(b) , notwithstanding their disagreement on the implications of this for review in by a panel 
established under the DSU. (See China's response to Panel question No.  39; United  States ' response to Panel 
question No s. 39 and 40 ). For example, t he United  States  argues that the subparagraphs of Article  XXI(b) 
"form an integral part of the provision in that they complete the sentence begun in the chapeau, establishing 
three exhaustive circumstances in which a Member may act". At the same time, the United  States  maintains 
that "[t] he fact that these circum stances are exhaustive, however, does not mean that the Member 's 
invocation of Article  XXI(b) is subject to review." ( United  States ' response to Panel question Nos. 39 and 40) . 
445 China's response to Panel question No.  35; United  States ' response to Panel q uestion No.  35.  
446 The French and Spanish language versions of Article  XXI(b) respectively  use the phrases " qu'elle 
estimera " and " que estime ", indicating the estimation or consideration of the Member taking action under that 
Article. See Le Petit Robert D ictionnaire de la Langue Francaise (2000), p. 824 and Diccionario de la Lengua 
Española , 22nd Edition  (Real Academia Española, 2001), p. 1270.  
447 The terms corresponding to "any action" in Article  XXI(b) in the French and Spanish versions are 
"toutes mesures " and " todas las medidas ", which may be understood as all measures. See Le Petit Robert 
Dictionnaire de la Langue Francaise (2000), pp. 2551-2552; and Diccionario de la Lengua Española , 22nd 
Edition  (Real Academia Española, 2001), pp. 1485-1486.  
448 China's response to Panel question No.  90. 
449 The Panel notes that the parties' arguments concerning the grammar of Article  XXI(b) focus on the 
English text of the provision, and the Panel accordingly focuses its assessment on the English text and the 
specific reference materials on English grammar submitted by the parties. The Panel does not make any 
determination as to the status or authority of such reference materials but rather refers to them as relevant to 
addressing the parties' arguments and describi ng the grammatical construction of Article  XXI(b).  WT/DS544/R  
 
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  of the provision.450 As noted above, Article  XXI begins a sentence that is completed by the terms of 
paragraph (b) and the alternative endings in the subparagraphs thereunder. The opening terms of 
Article  XXI form a clause beginning with the terms "Nothing in this Agreement" a nd ending with the 
terms "any action" in paragraph (b). This clause can be characterized as an independent clause in 
that it contains a subject ("Nothing") and predicate ("shall be construed to prevent any Member 
from taking any action") that can stand alo ne as a complete sentence.451  
Following this independent clause, the relative pronoun "which" in Article  XXI(b) begins a 
relative clause that can be grammatically characterized as a dependent clause in the sense that it is 
a group of words with a subject a nd verb that, unlike an independent clause, cannot stand on its 
own as a complete sentence.452 This relative clause is grammatically subordinate to the independent 
clause at the beginning of Article  XXI that ends with the word "action" in paragraph (b), qua lifying 
the noun "action" to describe the action that a Member may take notwithstanding the obligations 
under the GATT  1994.453 The pronoun "it" refers to the Member taking action under Article  XXI(b) 
and is the subject of this relative clause. The verb "co nsiders" is followed by an immediate object 
("necessary") that is further modified by a prepositional phrase ("for the protection of") and noun 
phrase ("its essential security interests").454 
Each of the subparagraphs of Article  XXI(b) begins with a partici ple that forms the beginning 
of a participle phrase.455 Specifically, subparagraphs (i)  and (ii)  begin with the present participle 
"relating" and subparagraph (iii)  begins with the past participle "taken". As these participles qualify 
the noun "action"456, the terms following each participle function as adjectives describing the "action" 
under Article  XXI(b) and thus can be characterized as participle or adjectival phrases qualifying that 
noun.457  
 
450 A "clause" in this context has been defined as "a group of words containing both a subject and a 
predicate" that "functions as an element of a compound or complex sentence". A "phrase", by contrast, is " a 
brief expression that consists of two or more grammatically related words but that does not constitute a 
clause" (i.e. does not contain a noun and a verb). ( Merriam -Webster's Guide to Punctuation and Style  
(Merriam -Webster, Incorporated, 1995), ( Exhibit USA-95), pp. 231 and 233).  
451 See W. Strunk Jr. and E.B. White, The Elements of Style , 4th edn (Allyn and Bacon, 1999), ( Exhibit 
USA-226), pp. 91 and 93  (an "independent clause" is "[a] group of words with a subject and verb that can 
stand alone as a sentence". A "predicate" refers to "[t]he verb and its related words in a clause or sentence" 
and "expresses what the subject does, experiences, or is"). Acc ording to the United  States , through the 
language in this independent clause, " Article  XXI(b) creates an exception to the obligations in the 
[GATT  1994]". (See United  States ' response to Panel question No.  90). 
452 S. Greenbaum, English Grammar (Oxford Unive rsity Press, 1996), ( Exhibit USA -93), p. 631  (a 
"relative clause" is used to "postmodify nouns" and is "introduced by a relative item" such as the relative 
pronoun "which"); R. Flesch and A.H. Lass, The Classic Guide to Better Writing (HarperPerennial, 1996), 
(Exhibit USA-94), p. 69  ("[w]ho and which are called relative pronouns  and introduce relative clauses" . Using 
these relative pronouns "[makes] an independent clause into a relative or dependent clause – a group of words 
that can't stand by itself" ) (emphasis omitted); and W. Strunk Jr. and E.B. White, The Elements of Style , 4th 
edn (Allyn and Bacon, 1999), ( Exhibit USA-226), p. 91  (a "dependent clause" is "subordinate to an 
independent clause in a sentence" and begins with either a subordinating conj unction or a relative pronoun 
such as "which".) (emphasis omitted) . 
453 See e.g. S. Greenbaum, English Grammar (Oxford University Press, 1996), ( Exhibit USA -93), p. 631 
(a "relative clause" is used to "postmodify nouns" ); Merriam -Webster's Guide to Punctuati on and Style  
(Merriam -Webster, Incorporated, 1995), ( Exhibit USA-95), p. 233  (a subordinate clause "cannot stand alone, 
and must be either preceded or followed by a main clause"); and W. Strunk Jr. and E.B. White, The Elements 
of Style , 4th edn (Allyn and Bacon, 1999), ( Exhibit USA-226), p. 95  (a "subordinate clause" is a "clause 
dependant on the main clause in a sentence") . 
454 See Merriam -Webster's Guide to Punctuation and Style  (Merriam -Webster, Incorporated, 1995), 
(Exhibit USA -95), p. 232  (a "noun phrase" consists of "a noun and its modifiers" whereas a "prepositional 
phrase" consist of "a preposition and its object"); W. Strunk Jr. and E.B. White, The Elements of Style , 4th edn 
(Allyn and Bacon, 1999), ( Exhibit USA-226), p. 93  (a preposit ional phrase is "[a] group of words consisting of a 
preposition, its object, and any of the object's modifiers") . 
455 See Merriam -Webster's Guide to Punctuation and Style  (Merriam -Webster, Incorporated, 1995), 
(Exhibit USA -95), p. 232  (a "participial phrase includes a participle and functions as an adjective"); W. Strunk 
Jr. and E.B. White, The Elements of Style , 4th edn (Allyn and Bacon, 1999), (Exhibit USA-226), p. 93  (a 
"participial phrase" is "[a] present or past participle with accompanying modifiers, ob jects, or complements").  
456 See para.  7.112  above.  
457 See Merriam -Webster's Guide to Punctuation and Style  (Merriam -Webster, Incorporated, 1995), 
(Exhibit USA -95), pp. 232-233 ("[a] participle phrase includes a participle and functions as an adjective". An 
"adjective clause modifies a noun or pronoun and normally follows the word it modifies") . WT/DS544/R  
 
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The Panel does not consider that the grammatical construction of Article  XXI(b) definitively 
resolves whether the subparagraphs are qualified by the phrase "which it considers" as part of a 
"single relative clause" in the manner contended by the United  States . The adjectival phrases in the 
subparagraphs of Article  XXI(b) could be regarded as continuations of the relative clause that begins 
with the relative pronoun "which" in the sense that they provide alternative endings to the sentence 
formed under the provision. However, this does not necessarily compel the conclu sion that the 
subparagraphs form part of a "single relative clause" in the sense argued by the United  States  that, 
"[b]ecause the relative clause describing the action begins 'which it considers', the other elements 
of this clause are committed to the judg ment of the Member taking the action."458 In support of its 
view that, under the ordinary meaning of the English text of Article  XXI(b), subparagraphs (i) and 
(ii) modify the phrase "essential security interests"459, the United  States  refers to rules of English 
grammar according to which "an adjectival phrase normally follows the word it modifies or is 
otherwise placed as closely to the word it modifies".460 According to this argument, the adjectival 
phrases in the subparagraphs of Arti cle XXI(b) would thus be part of the relative clause that begins 
with the word "which" and would modify the terms in that relative clause that appear closest to the 
subparagraphs.  
The grammatical references cited by the United  States  do not indicate a cat egorical rule 
according to which the relative clause in Article  XXI(b) that begins "which it considers" must contain 
and qualify any following adjectival phrase (i.e. those contained in the subparagraphs). Indeed, the 
United  States  acknowledges a deviation  in Article  XXI(b) from the general rule it cites as "the 
drafters departed from typical English usage" in subparagraph (iii)  by placing the adjectival phrase 
in that subparagraph next to "essential security interests", rather than next to the term modifie d by 
that adjectival phrase ("action").461 With respect to the interpretation of Article  XXI(b) , the 
qualification of the noun "action" in paragraph (b) by the participle phrases in the subparagraphs is 
not solely determined by rigid application of grammar but follows from the ordinary meaning of 
these terms, notwithstanding the existence of a relative clause in paragraph (b) between the noun 
"action" and textually discrete adjectival phrases qualifying that "action".  
The foregoing considerations reflect th e potential limitations of a purely grammatical analysis 
of the terms of Article  XXI(b) and the significance of additional interpretive considerations in 
ascertaining the ordinary meaning of the terms in their context. In addressing the parties' dispute 
as to the interpretation of Article  XXI(b) of the GATT  1994, the Panel is mindful of the principle of 
effective treaty interpretation according to which all terms of a treaty are to be given meaning and 
effect. Relatedly, the terms used in a treaty must not be reduced to redundancy or inutility.462 The 
meaning and effect of the subparagraphs derives not only from considerations of grammatical 
qualification but also the specific terms used within the overall structure of the provision. 
Characterizing the subpar agraphs as part of a "single relative clause", even if grammatically 
permissible, does not account for the ordinary meaning of actions "relating to" specified "materials" 
and "traffic" and to actions "taken in time of" specified circumstances. Nor does it account for the 
structure of Article  XXI(b) and the textual separation of the subparagraphs into an enumerated list, 
which corresponds to the role of the subparagraphs as alternative sentence endings that collectively 
delimit the scope of Article  XXI(b).  
The Panel notes the United  States ' argument that Article  XXI(b) "should be read as a single 
clause and not as introducing separate conditions".463 Further, the United  States  cautions against an 
approach that would "atomize this single relative clause" becau se "[a]rtificially separating the words 
'which it considers necessary' from the language that immediately follows and continues the clause 
 
458 United  States ' response to Panel  question No.  36. 
459 See fn  442 above.  
460 United  States ' response to Panel question No.  90 (referring to Merriam -Webster's Guide to 
Punctuation and Style (Merriam -Webster, Incorporated, 1995), ( Exhibit USA -176), pp. 232-233 ("[t]he 
adjective clause modifies a noun or pronoun and normally follows the word it modifies" and "[u]sage problems 
with phrases occur most often when a modifying phrase is not pl aced close enough to the word or words that it 
modifies") and S. Benedict (ed.), Harper's English Grammar (Harper & Row, 1966), (Exhibit USA-96), p. 186  
("adjectives and adverbial phrases, like adjectives and adverbs themselves should be placed as closely as 
possible to the words they modify") ). 
461 United  States ' response to Panel question No.  90. 
462 See e.g. Appellate  Body Reports, US – Gasoline , p. 23; Japan – Alcoholic Beverages II , p. 12; India – 
Patents (US) , para.  45.  
463 United  States ' response to Panel question No. 40. WT/DS544/R  
 
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  – for the protection of – would erroneously interpret certain terms of Article  XXI(b) in isolation."464 
In the Panel's  view, giving meaning and effect to the terms of the subparagraphs does not entail 
reading them in isolation from the other terms of Article  XXI(b) or "introducing separate conditions" 
beyond what is reflected in the terms themselves.465 The terms of Articl e XXI(b) grant discretion to 
Members for actions that they "consider necessary for the protection of their essential security 
interests" while also enumerating circumstances and conditions under which that discretion may be 
exercised.466 The right to take action under Article  XXI(b) thus consists of an express provision of 
deference to a Member's consideration that is complemented by subparagraphs that must be given 
meaning and effect according to the ordinary meaning of their terms.467  
The Panel finds relevant context for the interpretive issues raised in this dispute in the 
provisions of the GATT  1994 concerning consultation and potential recourse in cases of nullification 
or impairment, as well as the rules and procedures of the DSU, noting that these agreements are 
both "integral parts of [the WTO] Agreement, binding on all Members".468 Article  XXII o f the 
GATT  1994 provides for consultation "with respect to any matter affecting the operation of this 
Agreement" and Article  XXIII of the GATT  1994 addresses nullification or impairment of "any benefit 
accruing to [a Member] under this Agreement". The DSU elaborates upon these provisions469 and 
establishes the rules and procedures applicable to disputes concerning the covered agreements in 
Appendix  1 of the DSU. Neither the relevant provisions of the GATT  1994 nor the DSU make any 
explicit reference to Artic le XXI of the GATT  1994 or the potential review of its invocation in dispute 
settlement proceedings.470 In the absence of any special or additional rule of dispute settlement 
concerning Article  XXI(b) of the GATT  1994, any review of its invocation must be c arried out in 
accordance with the DSU as a function of the terms of the provision interpreted in accordance with 
customary rules of interpretation of public international law.  
The Panel finds further guidance in the object and purpose as expressed in the preamble of 
the WTO  Agreement  "to develop an integrated, more viable and durable multilateral trading system 
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization 
efforts, and all of the results of the Uruguay Ro und of Multilateral Trade Negotiations". In addition, 
the preambles of both the WTO  Agreement  and the GATT  1994 refer to the desire to contribute to 
the objectives of these agreements "by entering into reciprocal and mutually advantageous 
arrangements dire cted to the substantial reduction of tariffs and other barriers to trade and to the 
elimination of discriminatory treatment in international trade relations".471 In furtherance of these 
objectives, the WTO  Agreement  establishes a legal framework of rights a nd obligations that includes 
 
464 United  States ' response to Panel question No.  36; see also second written submission, para.  8. 
465 The United  States  draws the Panel's attention to commentaries of the International Law Commission 
that, "[p]roperly limi ted and applied, the maxim [of effective treaty interpretation] does not call for an 
'extensive' or 'liberal' interpretation in the sense of an interpretation going beyond what is expressed or 
necessarily to be implied in the terms of the treaty." ( United  States ' response to Panel question No.  47 citing 
Draft Articles on the Law of Treaties with commentaries, Yearbook of the International Law Commission, 1966, 
Vol. II , (Exhibit USA-23), p. 219 ). The Panel agrees that the rule of effectiveness requires that treaty 
interpretation neither expand nor diminish the actual terms used. In the present case, the Panel does not 
consider its interpretation to require any addition to the terms of Article  XXI(b), as the effectiveness of the 
subparagraphs der ives from their existing terms read within the overall structure of the provision. (See 
United  States ' response to Panel question No.  36, paras.  134-135 (arguing that the subparagraphs would 
require additional terms at the beginning of the subparagraphs to  establish their separation from the relative 
clause beginning with "which it considers")).   
466 The Panel notes that the scope of the circumstances set out in the subparagraphs does not detract 
from a Member's consideration that action within the scope of the subparagraphs is necessary "for" a specific 
purpose and that the Member's action pertain to "its" interest. (See United  States ' response to Panel question 
No. 36).  
467 In this sense, the United  States ' view that "the subparagraphs guide a Member's exerc ise of its rights  
under this provision" is compatible with the delimiting function served by the subparagraphs to define the 
circumstances and conditions under which action may be taken, "while reserving to the Member the judgment 
whether particular action  is necessary to protect its essential security interests".  (United  States ' first written 
submission, para.  34 (emphasis added); see also Response to Panel question No.  35). 
468 Article  II:2 of the WTO  Agreement . 
469 Pursuant to Article  3.2 of the DSU, "Member s affirm their adherence to the principles for the 
management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947, and the rules and 
procedures as further elaborated and modified herein."  
470 Appendix  2 of the DSU does not provide any s pecial or additional rules applying to disputes in which 
Article  XXI of the GATT  1994 is invoked.  
471 The preamble of the GATT  1994 refers to "international commerce" instead of "international trade 
relations".  WT/DS544/R  
 
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  the rules and procedures applicable to disputes concerning the covered agreements in the DSU. The 
DSU "serves to preserve the rights and obligations of Members under the covered agreements"472 
and "[r]ecommendations or rulings m ade by the DSB shall be aimed at achieving a satisfactory 
settlement of the matter in accordance with the rights and obligations under [the DSU] and the 
covered agreements".473 The rules and procedures of the DSU are thus intended to maintain the 
balance be tween the rights and obligations of the Members474 as embodied in the covered 
agreements and the relevant provisions thereof raised by the parties to proceedings under the DSU.  
The provision of relevance to this dispute, Article  XXI(b) of the GATT  1994, establishes a 
right to take action for the protection of a Member's essential security interests and explicitly 
enumerates conditions in the subparagraphs that are an integral part of that right. The absence of 
explicit provision or elaboration in Article  XXI(b) of the GATT  1994 as to whether and how its 
invocation may be reviewed does not, in itself, preclude or otherwise determine the review of that 
provision in dispute settlement proceedings.475 Rather, the scope and nature of such review derives 
from the t erms of Article  XXI(b) of the GATT  1994 and requirements of the DSU established under 
the WTO  Agreement , which acknowledges inter alia  the role of the WTO dispute settlement system 
in "providing security and predictability to the multilateral trading syste m".476 If Article  XXI(b) of the 
GATT  1994 is raised in dispute settlement proceedings, the DSU  requires that it be addressed in 
accordance with the terms of the provision itself and within an objective assessment of the relevant 
measures and claims to make findings that will assist the DSB to make recommendations provided 
for in the covered agreeme nts.  
In addition to the relevant text, context, and object and purpose of the covered agreements, 
the parties have referred to various other materials regarding the interpretation of Article  XXI(b) of 
the GATT  1994. These materials include: (a) negotiatin g history of Article  XXI of the GATT 1947 and 
preparatory works of the Havana Charter for the International Trade Organization (ITO); (b) internal 
documents of the US delegation to the negotiation of the ITO draft charter and GATT 1947; (c) GATT 
Council De cisions under the GATT 1947; (d) views expressed by GATT contracting parties prior to 
the creation of the WTO; and (e) negotiating history of the Uruguay Round. Both parties contend 
that these materials provide support for their primary arguments on the te rms of Article  XXI(b) of 
the GATT  1994 and the rule of interpretation in Article  31(1) of the Vienna  Convention .477 In 
Appendix  B to this Report, the Panel addresses the parties' arguments on the relevance of these 
materials to the interpretation of Article  XXI(b) of the GATT  1994.  
As detailed in Appendix  B, these materials do not provide clear guidance regarding the 
contested issues in this dispute, particularly concerning the scope and nature of the review of a 
Member's invocation of Article  XXI(b) of the  GATT  1994 in proceedings under the DSU. In addition 
to questions on the precise legal status of these materials for the purpose of treaty interpretation, 
the Panel does not find any clear indication in these materials of the "self -judging nature" or "non -
justiciability" of Article  XXI(b) of the GATT  1994 as contended by the United  States .478 Rather, the 
Panel finds these materials to support the general conclusion that the terms of Article  XXI(b) of the 
GATT  1994 establish a right to take action for the pro tection of essential security interests in the 
conditions and circumstances described in the three subparagraphs.      
In conclusion, the entirety of Article  XXI(b) of the GATT  1994 is to be given meaning and 
effect in a manner that preserves the right and  discretion of a Member to take action it considers 
necessary for the protection of its essential security interests under the conditions and circumstances 
described in subparagraphs (i)  to (iii). The Panel does not consider that Article  XXI(b) of the 
GATT  1994 is "self -judging" or "non -justiciable" in the sense argued by the United  States , nor that 
the provision contains a "single relative clause" that wholly reserves the conditions and 
circumstances of the subparagraphs to the judgment of the invoking Mem ber. In light of this 
 
472 Article  3.2 of the DSU.  
473 Article  3.4 of the DSU.  
474 See Article  3.3 of the DSU.  
475 The Panel notes that the invocation of Article  XX of the GATT  1994 titled "General Exceptio ns" has 
been reviewed in WTO dispute settlement proceedings notwithstanding the absence of an explicit provision in 
Article  XX on whether and how its invocation may be reviewed.  
476 Article  3.2 of the DSU.  
477 China's response to Panel question No.  56; United  States ' response to Panel question No.  56. 
478 See United  States ' first written submission , paras.  47, 56, and 106 . WT/DS544/R  
 
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  conclusion and in accordance with relevant requirements of the DSU, the Panel turns to assess the 
United  States ' invocation of Article  XXI(b) of the GATT  1994 in relation to the measures at issue.  
Assessment of the measures at issue  
The Panel will assess whether the measures found to be inconsistent with Articles I:1 and 
II:1 of the GATT  1994 were taken under the conditions and circumstances described in the 
subparagraphs of Article  XXI(b) of the GATT  1994.479  
As an initial matter, the  Panel notes the objections by the complainant to the manner and 
timeliness of the United  States ' defence under Article  XXI(b)(iii), including concerns regarding due 
process and the Panel's independent assessment of the evidence and arguments on the record.480 
The Panel considers that the parties' due process rights have been fully maintained in these 
proceedings, during which the Panel has endeavoured to provide ample time and opportunity to 
address any evidence or arguments raised by the other party.481 Moreover, the Panel has engaged 
with such evidence and arguments in written questions and substantive meetings in order to fulfil 
its mandate under the DSU to make an objective assessment of the matter referred to the DSB and 
to make such findings as wi ll assist the DSB in making the recommendations or in giving the rulings 
provided for in the covered agreements.482  
The United  States  has presented its specific arguments on the challenged measures subject 
to its interpretive argument that Article  XXI(b) i s entirely "self -judging" and imposes no requirement 
to explain or identify a relevant circumstance in subparagraphs (i)  to (iii).483 Although the 
United  States  has focused its arguments on the interpretation of Article  XXI(b) and the discretion 
accorded by its terms to Members, it has also submitted an extensive record of material relating to 
the measures at issue. Of particular note in this context are the Stee l and Aluminium Reports of the 
USDOC and Presidential Proclamations setting out the legal basis under Section  232 for taking action 
on steel and aluminium products. As described below, the United  States  has also elaborated its 
position throughout the cours e of the proceedings concerning the measures at issue and, in 
particular, the existence of an "emergency in international relations" within the meaning of 
Article  XXI(b)(iii)  "in time of" which the measures were taken.  
The United  States ' first written sub mission focused on the argument that Article  XXI of the 
GATT  1994 is "self -judging" as a defence against WTO -inconsistencies and that its invocation by a 
Member is "non -justiciable" in WTO dispute settlement proceedings. Following the first substantive 
meeting, the United  States  argued that "publicly available information" concerning its measures 
"could be understood to relate most naturally to the circumstance described in Article  XXI(b)(iii)".484 
At the same time, the United  States  maintained its interpret ive view that it is not necessary under 
Article  XXI for any Member to provide details relating to its invocation of the exception, nor "to 
 
479 In light of the Panel's conclusion on the interpretation of Article  XXI(b)  and the arguments of the 
parties in this dispute , the Panel consi ders it appropriate to focus its assessment of the measures at issue on 
subparagraph (iii)  and whether the measures were "taken in time of war or other emergency in international 
relations". The Panel notes that previous panels have assessed measures under  Security Exceptions for "action 
which [a Member] considers necessary for the protection of its essential security interests" beginning with the 
relevant subparagraph of the provision at issue. (See Panel  Report s, Russa – Traffic in Transit , paras.  7.108 -
7.109; Saudi Arabia – IPRs; para.  7.242).  
480 See China's response to Panel question No.  71; comments after the second meeting  of the Panel . 
481 For example, at the closing of the second substantive meeting, the Panel indicated that the parties 
would hav e an opportunity to provide written comments on any issue raised during the meeting, including 
arguments on Article  XXI(b)(iii)  made during closing statements. The parties were accordingly invited to 
provide written comments following the second substantiv e meeting and given an opportunity to make any 
additional comments in response. The Panel considers the procedural arrangements in this dispute, including 
the overall  time given to the parties for written submissions and comments, to have afforded the part ies 
adequate opportunity to be heard and to respond to arguments made by the other party as required for the 
protection of their due process rights. (See Appellate  Body Report, Thailand – Cigarettes (Philippines) , 
para. 147). 
482 See e.g. Appellate  Body Reports, US – Shrimp , para.  106; EC and certain member states – Large 
Civil Aircraft , para.  1317; Australia – Tobacco Plain Packaging , para.  6.244.  
483 See e.g. United  States ' response to Panel question No.  92. 
484 United  States ' second written submission, para.  24.  WT/DS544/R  
 
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  identify the relevant subparagraph ending to that provision that an invoking Member may consider 
most relevant".485  
The United  States  subsequently elaborated its arguments regarding the measures at issue 
based on its interpretation of an "other emergency in international relations" as meaning "a situation 
of danger or conflict, concerning political or economic contact oc curring between nations, which 
arises unexpectedly and requires urgent attention".486 In particular, the United  States  argued that 
"the extensive findings in the steel and aluminum reports are consistent with the United  States  
considering the measures at is sue to be taken 'in time of war or other emergency in international 
relations'."487 The United  States  cited various findings in the Steel and Aluminium Reports and 
argued that "the findings cited above relating to the threatened impairment of national secur ity by 
steel and aluminum imports, and the global crisis circumstances under which such importations were 
occurring, are consistent with the United  States  considering that an 'other emergency in 
international relations' exists – that is, a situation of dan ger or conflict, concerning political or 
economic contact occurring between nations, which arises unexpectedly and requires urgent 
attention."488 
In its closing statement at the second substantive meeting, the United  States  argued that, 
"even on the complai nant's understanding of Article  XXI(b) as not self-judging, … [t]he record before 
the Panel demonstrates that the United  States  considers the measures at issue to be necessary for 
the protection of its essential security interests and taken 'in time of war  or other emergency in 
international relations'."489 The United  States  referred to findings in the Steel Report on "whether an 
emergency related to steel excess capacity exists" to comment that, "in 2017, it emerged that global 
efforts to address the se crises would be insufficient. While the DOC steel report noted that the e xcess 
capacity crisis is a global problem that steel -producing nations have committed to 'work together on 
possible solutions,' the report observed the limits of the global efforts, including the work of the 
Global Forum on Steel Excess Capacity."490 The United States  argued that "what the DOC steel report 
conveys is that the United  States  was at a crucial point [and] that without immediate action, the 
steel industry could suffer damages that may be difficult to reverse and reach a point where it cannot 
maintain or increase production to address national emergencies."491 The United  States  additionally 
argued that "[a]n industry facing 'fundamental changes' brought on by a 'production revolution' can 
certainly lead to unexpected developments, particularly when that industry is facing an 'acute' 
situation of global excess capacity that is the highest in the industry's history."492  
The Panel notes that the United  States  has referred to appendices in the Steel and Aluminium 
Reports concerning global excess capacity  in connection with the existence of an "emergency in 
international relations" under Article  XXI(b)(iii).493 In addition, the United  States  has referred to the 
 
485 United  States ' second written submission, para.  23. According to the United  States , its invocation of 
Article  XXI(b) indicated its consideration "that any or all of the three circumstances described in the 
subparagraphs are present", and whatever burden of proof attached to Article  XXI(b) "is discharged once the 
Member indicates, in the context of dispute settlement, that it has made such a determination" that it 
"consider[s] one or more of the circumstances  set forth in Article  XXI(b) to be present". ( United  States ' 
response to Panel question Nos. 50 and 52. See also United  States ' second written submission, para.  40). 
486 See United  States ' response to Panel question No.  92.  
487 United  States ' response to Pane l question No.  92, para.  42. 
488 United  States ' response to Panel question No.  92, para.  49. 
489 United  States ' closing statement at the second meeting, para.  49. (emphasis original)  
490 United  States ' closing statement at the second meeting, paras.  55-56.  
491 United  States ' closing statement at the second meeting, para.  58. The United  States  also argue d that 
"the situation at issue did arise unexpectedly and remained an 'emergency in international relations' when the 
measures were taken. The confluence of event s in 2017 made the emergency even more pressing to address 
for the United  States ." (United  States ' closing statement at the second meeting, para.  55). 
492 United  States ' closing statement at the second meeting, para.  59. The United  States  cited the 
following  passages in G20, Global Forum on Steel Excess Capacity Report  (30 November  2017), (Exhibit USA -
239): "The situation of excess steelmaking capacity 'has become particularly acute since 2015'; 'the steel 
industry will have to adjust in response to fundament al changes in economic activity brought on by the 'next 
production revolution.'" ( Ibid. p. 2); "In 2016, the global surplus in steelmaking capacity is estimated to have 
reached around 737  million  metric tonnes, the highest level seen in the history of the steel industry. If the 
announced capacity expansions until 2020 take place, this excess capacity will further increase". ( Ibid. p. 4). 
493 See United  States ' response to Panel question No.  92, para.  45; (referring to Steel Report , (Exhibit 
CHN-4 and USA -7), Appendix  L: "Global Excess Capacity in Steel Production" and its commentary on OECD 
analyses and the policy recommendations from the Global Forum on Steel Excess Capacity); United  States ' 
comments on comments after the second meeting of the Panel, para. 22 (referring to Aluminium Report , 
(Exhibit CHN -5 and USA -8), Appendix  E "Global Excess Aluminum Production") .  WT/DS544/R  
 
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  G20 Global Steel Forum Report of 2017 that describes the situation of excess steelmaking capacity  
as "particularly acute since 2015" and addresses the outlook of global steelmaking capacity.494 
Further, the United  States  refers to remarks of the EU Commissioner for Trade at the OECD High -
Level Symposium on Steel expressing concerns on steel overcapacit y.495 The United  States  has also 
referred to a statement of the chairperson  of the OECD Ministerial Council Meeting in 2018 that 
OECD members "share the view that severe excess capacity in key sectors such as steel and 
alumin ium are serious concerns for the  proper functioning of international trade, the creation of 
innovative technologies and the sustainable growth of the global economy" and "stress the urgent 
need to avoid excess capacity in … sectors such as aluminium and high technology."496 The 
United  States additionally refers to the Charlevoix G7 Summit Communiqué which "stressed the 
urgent need to avoid excess capacity" in the aluminium sector .497  
The Panel will assess the evidence and arguments submitted in this dispute in accordance 
with the requireme nt under Article  11 of the DSU to make "an objective assessment of the facts of 
the case and the applicability of and conformity with the relevant covered agreements". In addition 
to the interpretive conclusions reached above498, the Panel's assessment will  be based on an 
interpretation of the terms of subparagraph (iii)  of Article  XXI(b) in accordance with Article  3.2 of 
the DSU and customary rules of interpretation of public international law. Based on this 
interpretation as well as the evidence and argume nts submitted by the parties, the Panel will assess 
whether the "action[s] which [the United  States ] considers necessary for the protection of its 
essential security interests" were taken under the circumstances described in the subparagraphs of 
Article  XXI(b)(iii)  of the GATT  1994. 
Under subparagraph (iii)  of Article  XXI(b), a Member may take action which it considers 
necessary for the protection of its essential security interests "in time of war or other emergency in 
international relations". Dictionary definitions of the term "emergency" include "[a] situation, esp.  
of danger or conflict, that arises unexpectedly and requires urgent attention", "a condition requiring 
immediate treatment", or a "pressing need".499 The relevant emergency within the meaning of 
subparagraph (iii)  must be "in international relations". The term "relations" may be defined as "[t]he 
various ways by which a country, State, etc., maintains political or economic contact with 
another"500, while the term "international" may be defined as "[e]xisting, occurring, or carried on 
between nations ; pertain ing to relations, communications, travel, etc., between nations ".501 The 
phrase "international relations" may thus be understood to mean interactions between nations or 
national governments.502 The terms of  Article  XXI(b)(iii)  appear to distinguish the relev ant 
emergency under that subparagraph from an emergency in purely domestic or national affairs and 
indicate the "international" character of the emergency in time of which Members are not prevented 
from taking action under Article  XXI(b).  
The term "war" p recedes the phrase "or other emergency in international relations" in 
subparagraph (iii)  of Article  XXI(b) and provides immediate context for its interpretation. Dictionary 
definitions of "war" include "[h]ostile contention by means of armed forces, carrie d on between 
nations, states, or rulers, or between parties in the same nation or state; the employment of armed 
 
494 See G20, Global Forum on Steel Excess Capacity Report  (30 November  2017), ( Exhibit USA -239); 
United  States ' closing statement at the sec ond meeting of the Panel, para.  59. 
495 See Remarks dated 18  April 2016 of C. Malmström, "Way ahead for the global steel industry", OECD  
High-Level Symposium on Steel, ( Exhibit USA -240); United  States ' closing statement at the second meeting of 
the Panel , para. 60. 
496 United  States ' comments on comments after the second meeting of the Panel, para.  25. 
497 United  States ' comments on comments after the second meeting of the Panel, para.  25. 
498 See section 7.8.2 above.  
499 Shorter Oxford English Dictionary , 5th Edition (Oxford University Press, 2003), p. 814. See also 
United  States ' response to Panel question No.  51 (referring to The New Shorter Oxfor d English Dictionary , 
4th edn, L. Brown (ed.) (Clarendon Press, 1993), ( Exhibit USA -86), p. 806 ).  
500 Shorter Oxford English Dictionary , 5th Edition (Oxford University Press, 2003), p. 2520. See also 
United  States ' response to Panel question No.  92 (referring to The New Shorter Oxford English Dictionary , 
4th edn, L. Brown (ed.) (Clarendon Press, 1993) , (Exhibit USA -222), p. 2534). 
501 Shorter Oxford English Dictionary , 5th Edition (Oxford University Press, 2003), p. 1404. See also 
United  States ' respons e to Panel question No.  92 (referring to The New Shorter Oxford English Dictionary , 
4th edn, L. Brown (ed.) (Clarendon Press, 1993) , (Exhibit USA -222), p. 1397 ).  
502 See also Oxford English Dictionary Online  (Oxford University Press, March 2022) (defining 
"international relations" as "relations between nations, national governments, international organizations") and 
Black's Law Dictionary, 9th edn, B.A. Garner (ed.) (West Group 2009), p. 893 (defining "international relations" 
as "[g]lobal political interact ion, primarily among sovereign nations").  WT/DS544/R  
 
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  forces against a foreign power, or against an opposing party in the state".503 Based on its ordinary 
meaning, "war" involves a state of conflict  characteri zed by the use of force. This is further confirmed 
by the French and Spanish language versions of Article  XXI(b)(iii), where the terms " guerre " and 
"guerra " similarly signify armed struggles or outbreak of hostilities.504  
The Panel finds that the reference to "war" informs the meaning of "emergency in 
international relations" as part of the circumstances "in time of" which a Member may act under 
Article  XXI(b) for the protection of its essential security interests. In particular, the Panel  considers 
that an  "emergency in international relations" within the meaning of Article  XXI(b)(iii)  must be, if 
not equally grave or severe, at least comparable in its gravity or severity to a "war" in terms of its 
impact on international relations. This u nderstanding is supported by the French and Spanish 
language versions of Article  XXI(b)(iii)  of the GATT  1994, where the terms corresponding to 
"emergency in international relations" are " grave tension internationale " and " grave tensión 
internacional " resp ectively. The term " grave " in these languages may be understood as referring to 
international tensions that are of a critical or serious nature in terms of their impact on the conduct 
of international relations.  
Further, under subparagraph (iii)  of Article  XXI(b), action for the protection of essential 
security interests must be "taken in time of" an emergency in international relations. As discussed 
above, the Panel understands these opening terms of subparagraph (iii)  to qualify and describe the 
"action" referred to in Article  XXI(b). The phrase "taken in time of" in subparagraph (iii)  describes 
the temporal link between the action taken by a Member under Article  XXI(b) and the "war  or other 
emergency in international relations" in subparagraph (iii ) of that Article.  
The Panel also considers relevant the context provided by the subparagraphs of 
Article  XXI(b) in conjunction with the terms used in paragraph (b) of Article  XXI, which concerns 
actions taken by a Member for the protection of its "essent ial security interests". As discussed above, 
the description of these security interests as "essential" indicates the heightened significance of the 
security interests that Members are not prevented from taking action to protect pursuant to 
Article  XXI(b).  Actions taken by a Member for the protection of its essential security interests may 
concern "fissionable materials" under subparagraph (i), "traffic" involving certain military interests 
under subparagraph (ii), and "war or other emergency in internation al relations" under subparagraph 
(iii). The Panel is guided by the delimiting function of the subparagraphs in construing subparagraph 
(iii) to refer to circumstances of a certain gravity or severity  in terms of their impact on the conduct 
of international  relations, as part of the balance of rights and obligations reflected in the ordinary 
meaning of the terms of Article  XXI(b), interpreted in their context and in light of the object and 
purpose of the GATT  1994 and WTO  Agreement .505  
With respect to the me asures at issue, the Panel notes that the United  States  has referred 
in its arguments regarding  Article  XXI(b)(iii)  to factors considered by the USDOC in the Steel and 
Aluminium Reports. These Reports reflect the domestic legislative basis and statutory te rms of 
Section  232, particularly the factors to be considered in investigations by the USDOC and the 
reference to importation "in such quantities or under such circumstances" that the imports "threaten 
to impair the national security".506 The Panel notes th at various factors relied upon by US authorities 
are treated cumulatively  in support of the determination to act under Section  232. Specifically, the 
Steel and Aluminium Reports identify "three factors" as the basis for finding with respect to steel 
and al uminium that "weakening of our internal economy may impair the national security", namely: 
(a) displacement of domestic steel/aluminium by excessive imports; (b) the consequent adverse 
impact on the economic welfare of the domestic steel/aluminium industry ; and (c) the global excess 
 
503 Oxford English Dictionary Online  (Oxford University Press, March 2022).  
504 See Le Petit Robert Dictionnaire de la Langue Française  (2000), p. 1183 (defining " guerre " as " [l]utte 
armée entre groupes sociaux " (armed struggle between social groups) or " [l]es questions militaires " (military 
matters)); Diccionario de la Lengua Española , 22nd Edition  (Real Academia Española, 2001), p. 795 (defining 
"guerra " as " [d]esavenencia y rompimiento de la paz entre dos o más  potencias " (disagreement and breach of 
peace between two or more powers) or " [l]ucha armada entre dos o más naciones o entre bandos de una 
misma nación " (armed struggle between two or more nations or between sides of the same nation)).  
505 See paras.  7.124 -7.125  above.  
506 The USDOC noted the non -exhaustive list of factors to be considered in connection with "national 
security" under Section  232 and the list of factors for the US Secretary of Commerce to consider in determining 
if imports "threaten to impair the national security". (See Steel Repor t, (Exhibit CHN -4 and USA -7), pp. 13-15; 
Aluminium Report , (Exhibit CHN -5 and USA -8), pp. 12-14 (referring to Section  232(d))).  WT/DS544/R  
 
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  capacity in steel and aluminium.507 The Panel notes that the first two factors focus predominantly 
on developments relating to the domestic situation of steel and aluminium industries in the 
United  States508, while the third focus es on a global aspect of the situation .  
The analysis and conclusions of the USDOC  in the Steel and Aluminium Reports do not 
purport to identify or address the existence of an "emergency in international relations" within the 
meaning of Article  XXI(b)(iii)  of the GATT  1994. The determinations of US domestic authorities 
under Section  232 relate to a different legal standard and basis  under US municipal law  than the 
provisions of the covered agreements within the Panel's mandate under the DSU. Accordingly, the 
factors relied upon by the USDOC and conclusions in the Steel and Aluminium Repo rts are distinct 
from, and cannot be directly transposed to, the terms of Article  XXI(b)(iii)  of the GATT  1994 and the 
objective assessment required under Article  11 of the DSU. Therefore, the factors treated 
cumulatively by US domestic authorities under S ection  232 may not be regarded as having 
commensurate relevance or weight in the Panel's objective assessment as to whether the measures 
were taken "in time of war or other emergency in international relations" under Article  XXI(b)(iii)  of 
the GATT  1994. The assessment of the Panel in this dispute concerns the United  States ' specific 
arguments in connection with the existence of an "emergency in international relations" under 
Article  XXI(b)(iii)  and, in particular, its references to an international situati on of global excess 
capacity in steel and aluminium.509  
The Panel observes that, in its arguments under Article  XXI(b), the United  States  refers to 
this international situation – i.e. global excess capacity  in steel and aluminium – in connection with 
the impact of imports on domestic producers of steel and aluminium, as reflected in the conclusions 
of the USDOC in the Steel and Aluminium Reports.510 The United  States  refers to factors addressed 
by the USDOC in the Steel and Aluminium Reports as evidence that  it "considers" the measures at 
issue to have been "taken in time" of an "emergency in international relations" within the meaning 
of Article  XXI(b)(iii). In this regard, the Panel notes the United  States ' argument that "the extensive 
findings in the steel  and aluminum reports are consistent with the United  States  considering the 
measures at issue to be taken 'in time of war or other emergency in international relations'."511 The 
United  States  additionally argues that "the Panel should find [that] the United  States  has provided 
information that it considers the measure necessary for the protection of its essential security 
interests … [and] that the United  States  has provided information that it considers the measure 
'taken in time of war or other emergency i n international relations', the circumstance in 
subparagraph ending (iii)".512 
The Panel recalls its conclusion that the terms "which it considers" in Article  XXI(b) do not 
qualify the subparagraphs to render them "self -judging" as argued by the United  States .513 While 
the United  States  contends that it has "provided information that it considers" the measures at issue 
to fall under Article  XXI(b)(iii), the revie w of such information in accordance with the DSU requires 
an objective ascertainment of factors relating to the relevant "emergency in international relations" 
under subparagraph (iii), as distinguished from factors pertaining to what is reserved to a Memb er's 
consideration under paragraph (b) of Article  XXI. The United  States  refers to factors that were 
cumulatively considered by domestic authorities in support of the determination to act under 
Section  232. As noted, these factors concern both the domestic  situation of steel and aluminium 
industries as well as global excess capacity.  
In the Panel's view, the factors  raised by the United  States  on the impact of imports on 
domestic producers of steel and aluminium , including the consideration of US domestic authorities 
 
507 Steel Report , (Exhibit CHN -4 and USA -7), p. 16; Alumin ium Report , (Exhibit CHN -5 and USA -8), p. 
15.  
508 See e.g. Steel Report , (Exhibit CHN -4 and USA -7), sections V.B.4 -10 and V.C; Alumin ium Report , 
(Exhibit CHN -5 and USA -8), sections VI.H and VI.C.  
509 United  States ' response to Panel question No.  92, para.  45 (referring to Steel Report , (Exhibit CHN -4 
and U SA-7), Appendix  L: "Global Excess Capacity in Steel Production" and its commentary on OECD analyses 
and the policy recommendations from the Global Forum on Steel Excess Capacity); United  States ' comments 
on comments after the second meeting of the Panel, p ara. 25. See also United  States ' closing statement at the 
second meeting, paras.  55-56. 
510 See Steel Report , (Exhibit CHN -4 and USA -7), section  VI; Aluminium Report , (Exhibit CHN -5 and 
USA-8), section  VII. 
511 United  States ' response to Panel question No.  92, para. 42. 
512 United  States ' closing statement at the second meeting, para.  50. 
513 See para.  7.128  above.  WT/DS544/R  
 
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  of "national security" under Section  232, pertain more to the "action which [the United  States ] 
considers necessary for the protection of its essential security interests" under paragraph (b) of 
Article  XXI.514 However, in accordance with the or dinary meaning of its terms, 
subparagraph  (iii) requires a distinct inquiry as to whether the actions were taken in time of an 
"emergency in international relations" based on an objective assessment of relevant evidence and 
arguments.  
In this connection, t he Panel notes the evidence submitted by the United  States  of 
international concerns regarding global excess capacity in steel and aluminium, including the 
discussion of such concerns in the Steel and Aluminium Reports.  The statements at the international 
level referred to by the United  States  indicate that the issue of global excess capacity in steel and 
aluminium has be en a topic of high -level discussion and expressions of concern in various 
international fora.515 As reflected in information provided by th e United  States  in this dispute, the 
discussion of global excess capacity focuses on specific sectors and is evidence of the fact that the 
issue has been raised as a matter of international attention within the conduct of international 
relations of various  countries. Notwithstanding such evidence of international engagement, the Panel 
recalls that an "emergency in international relations" under Article  XXI(b)(iii)  refers to situations of 
a certain gravity or severity and international tensions that are of a  critical or serious nature in terms 
of their impact on the conduct of international relations.  
Having  carefully reviewed the relevant evidence and arguments submitted in this dispute, 
and particularly those submitted by the United  States  in relation to global excess capacity, the Panel 
is not persuaded that the situation to which the United  States  refers rises to the gravity or severity 
of tensions on the international plane so as to constitute an "emergency in international relations"  
during which a Member may act under Article  XXI(b)(iii).516 For example, the G20 Global Steel Forum 
Report "focuses on the steel sector and provides concret e policy solutions to reduce steel excess 
capacity".517 In referring to excess steelmaking capacity as "a global challenge that has become 
particularly acute since 2015", the report highlights various efforts within the Global Steel Forum in 
light of trends  in the sector as part of "[g]lobal cooperation to find solutions to tackle excess capacity 
in the steel market".518 Such evidence submitted by the United  States  in this dispute reflects 
international concern expressed in the context of cooperative efforts to address excess capacity in 
a specific sector.519 In the Panel's view, however, the gravity or severity of an "emergency in 
 
514 See e.g. United  States ' closing statement at the second meeting, para.  17 (stating that "the 
measures challenged are measures  on steel and aluminum (key sources for producing militar y vehicles, 
weapons, and systems for critical national infrastructure) that the United  States  has taken for national security 
purposes"  and referring to "an industry that is vital to our national security and whose decline threatens to 
impair our national security") ; response to Panel question No.  92(a). See also paras.  7.83, 7.88-7.91, and 
7.98-7.99 above.  
515 See e.g. G20, Global Forum on Steel Excess Capacity Report  (30 November  2017), (Exhibit US A-
239); Remarks dated 18  April 2016 of C. Malmström, "Way ahead for the global steel industry", OECD High -
Level Symposium on Steel, (Exhibit US A-240); Charlevoix G7 Summit Communiqué (9  June 2018), (Exhibit 
USA-255).  
516 The Panel notes in this regard that p revious panels have found situations to constitute an 
"emergency in international relations" under Security Exceptions based on the particular evidence and 
circumstances at issue in those disputes. In a dispute under Article  XXI(b)(iii)  of the GATT  1994, such evidence 
included international recognition of the degree of deterioration of relations between two Members and a 
situation involving armed conflict during a certain time period. (See Panel  Report , Russa – Traffic in Transit , 
paras.  7.122 -7.123). In an other dispute under Article  73(b)(iii)  of the TRIPS  Agreement (the corresponding 
provision to Article  XXI(b)(iii)  of the GATT  1994 in the TRIPS  Agreement ), such evidence included  the 
severance of all diplomatic, consular, and economic relations between two  Members. (See Panel  Report , Saudi 
Arabia – IPRs; paras.  7.257 -7.266).  
517 G20, Global Forum on Steel Excess Capacity Report  (30 November 2017), ( Exhibit USA -239), p. 2.  
518 G20, Global Forum on Steel Excess Capacity Report  (30 November 2017), ( Exhibit USA -239), pp. 2-
3. The report describes the formal establishment of the Global Forum on Steel Excess Capacity and notes that 
"the OECD acts as the facilitator to the Global Forum". ( Ibid. para. 6). The report further describes  efforts to 
develop an "information -sharing mechanism" in a "tangible process [that] contributes to the collective trust 
and confidence that are necessary to find collective solutions to the challenge of excess capacity". ( Ibid. 
paras.  7-8). 
519 The United  States refers to other evidence that similarly reflects expressions of concern in the 
context of specific international initiatives. For example, the United  States  refers to remarks by the EU 
Commissioner for Trade at the OECD High -Level Symposium on Steel expressing concerns on steel 
overcapacity while noting ongoing interventions as well as recommendations for international cooperation . 
(Remarks dated 18  April 2016 of C. Malmström, "Way ahead for the global steel industry", OECD High -Level 
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  international relations" within the meaning of Article  XXI(b)(iii), particularly regarding the impact on 
international relations of  situations falling under that provision, has not been established based on 
the evidence and arguments submitted in this dispute. In reaching this conclusion, the Panel is 
mindful of its mandate in this dispute520 as well as the balance of rights and obliga tions reflected in 
the terms of Article  XXI of the GATT  1994 interpreted in accordance with the DSU.  
Conclusion  
In conclusion , the Panel does not find , based on the evidence and arguments submitted in 
this dispute, that the measures at issue were "taken in time of war or other emergency in 
international relations" within the meaning of Article  XXI(b)(iii)  of the GATT  1994. Therefore, the 
Panel finds that the inconsistencies of the measures at issue with Articles I:1 and II:1 of the 
GATT  1994 are not justified under Article  XXI(b)(iii)  of the GATT  1994. 
8  CONCLUSIONS AND RECOMMENDATION  
For the reasons set forth in this Report, the Panel concludes as follows:  
a. Regarding China's claims under Article  II of the GATT  1994: 
i. the additional duties of 25% on steel products and 10% on aluminium products do not 
accord the treatment provided for in the United  States ' Schedule, contrary to 
Article  II:1(b) and Article  II:1(a) of the GATT  1994; 
ii. the additional duty of 50% on steel products from Türkiye  does not accord the 
treatment provided for in the United  States ' Schedule, contrary to Article  II:1(b) and 
Article  II:1(a) of the GATT  1994; and 
iii. the additional duties of 25% on derivative steel products and 10% on derivative 
aluminium products do not accord the treatment provided for in the United  States ' 
Schedule, contrary to Article  II:1(b) and Article  II:1(a) of the GATT  1994. 
b. Regarding China's claims under Article  I of the GA TT 1994: 
i. the country exemptions for steel and aluminium products confer an advantage to 
products from Australia, Argentina, Brazil, and the Republic of Korea  that has not been 
accorded immediately and unconditionally to like products from all other Members , in 
a manner inconsistent with Article  I:1 of the GATT  1994; and  
ii. the country exemptions for derivative steel and aluminium products confer an 
advantage to products from Australia, Argentina, Brazil, the Republic of Korea , 
Canada, and Mexico that has not b een accorded immediately and unconditionally to 
like products from all other Members, in a manner inconsistent with Article  I:1 of the 
GATT  1994. 
c. Regarding China's claims under Article  X of the GATT  1994, the Panel does not consider  it 
necessary to make fi ndings on China's claims relating to the administration of the process 
for excluding products from duties that have already been found inconsistent with other 
 
Symposium on Steel (Exhibit USA -240)). The statement of the chairperson  of the OECD Ministerial Council 
Meeting addressed multiple topics related to "[r]eshaping the foundatio ns of multilateralism for more 
responsible, effective and inclusive outcomes", including a series of points reflecting the chairperson 's 
understanding of the views of OECD members on "[i]nternational trade an d investment for strong and inclusive 
growth". I n this context, the chairperson  of the OECD Ministerial Council Meeting referred to "the view that 
severe excess capacity in key sectors such as steel and aluminium are serious concerns" and, "[t]o address 
this critical concern", indicated an agreement "to  enhance cooperation in the WTO and in other fora, as 
appropriate". ( Statement of the Chair of the OECD Ministerial Council Meeting (2018), ( Exhibit USA -254), p. 
5). The Charlevoix G7 Summit Communiqué similarly addresses a number of topics of internationa l 
engagement and international economic concerns, which includes G7 leaders "call[ing] on all members of the 
Global Forum on Steel Excess Capacity to fully and promptly implement its recommendations" while 
"stress[ing] the urgent need to avoid excess capac ity in other sectors such as aluminium and high technology". 
(Charlevoix G7 Summit Communiqué (9  June 2018), ( Exhibit USA -255), p. 2).  
520 See section 7.1 above.  WT/DS544/R  
 
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  obligations under the GATT  1994. The Panel therefore declines to make findings regarding 
the clai ms under Article  X:3(a) of the GATT  1994.  
d. Regarding China's claims under Article  XIX of the GATT  1994 and the Agreement on 
Safeguards, the Panel finds that the relevant measures at issue were sought, taken, or 
maintained pursuant to a provision of the GATT  1994 other than Article  XIX, namely 
Article  XXI of the GATT  1994, within the meaning of Article  11.1(c) of the Agreement on 
Safeguards. The Panel therefore finds that the Agreement on Safeguards does not apply 
to the measures at issue.  
e. Regarding Article  XXI of the GATT  1994, the Panel does not find that the measures at issue 
were "taken in time of war or  other emergency in international relations" within the 
meaning of Article  XXI(b)(iii)  of the GATT  1994. The Panel therefore finds that the 
inconsistencies of the measures at issue with Articles I:1 and II:1  of the GATT  1994 are 
not justified under Article  XXI(b)(iii)  of the GATT  1994.  
Under Article  3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. The Panel concludes that, to the extent that the measures at issue are 
inconsistent with certain provisions of the GATT  1994, they have nullified or impaired benefits 
accruing to China under that Agreement.  
Pursuant to Article  19.1 of the DSU, the Panel recommends t hat the United  States  bring its 
WTO-inconsistent measures into conformity with its obligations under the GATT  1994. 
 
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