WT/DS544/R/Add.1  
 
9 December  2022 
(22-9168) Page: 1/87 
  Original: English  
 
  
UNITED  STATES  – CERTAIN MEASURES ON STEEL AND ALUMINIUM 
PRODUCTS  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in documents  
WT/DS544/R . 
 
_______________  
 
 
 
 
 
 
 
 
 
 WT/DS544/R/Add.1  
 
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LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Working Procedures of the Panel  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 People'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 t he arguments of Singapore  71 
Annex  C-10 Integrated executive summary of the arguments 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/Add.1  
 
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 ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 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 
 
 
 WT/DS544/R/Add.1  
 
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  ANNEX A -1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 5 April 2019  
 
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member ha s designated as confidential.  
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public.  
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the parties.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each par ty shall 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, before the second substantive meeting of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted  by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  
Preliminary rulings  
4. (1) If the United States considers that the Panel should make a ruling before the issuance 
of the Report that certain measures or claims in the panel request or the complainant's first 
written submission are not properly before the Panel, the following proced ure applies. 
Exceptions to this procedure shall be granted upon a showing of good cause.  
a. The United States shall submit any such request for a preliminary ruling at the earliest 
possible opportunity and in any event no later than in its first written subm ission to the   WT/DS544/R/Add.1  
 
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  Panel. China shall submit its response to the request before the first substantive meeting 
of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling 
request before, during or after the first substantive meeting, or the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide reasons for the ruling at the time that the ruling is made, 
or subsequently in its Report.   
d. Any request for such a preliminary ruling by the respondent before the first meeting, and 
any subsequent submissions of the parties in relation thereto before the first meeting, 
shall be served on all third parties. The Panel may provide all third parties with an 
opportunity to provide comments on  any such request, either in their submissions as 
provided for in the timetable or separately. Any preliminary ruling issued by the Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be comm unicated to all third parties.  
(2) This procedure is without prejudice to the parties' right to request other types of 
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provid ed by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new ev idence 
submitted.  
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working language  of the submission. The Panel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the ne xt submission or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shall be accompanied 
by an explanation of the grounds for the objection and an alternative translation.  
7. (1) To facili tate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhib it on its 
cover page. Exhibits submitted by China should be numbered CHN -1, CHN -2, etc. Exhibits 
submitted by the United States should be numbered USA -1, USA -2, etc. If the last exhibit in 
connection with the first submission was numbered [XXX] -5, the firs t exhibit in connection 
with the next submission thus would be numbered [XXX] -6.  
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again.  WT/DS544/R/Add.1  
 
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  (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the c ited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in a ccordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written questions, or a l ist of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.   
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing followi ng the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel shall meet in closed session.  
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibility  for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and th ird parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request for interpretation by any party shoul d be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Pane l shall invite China to make an opening statement to present its case first. 
Subsequently, the Panel shall invite the United States to present its point of view. Before each 
party takes the floor, it shall provide the Panel and other participants at the me eting with a 
provisional written version of its statement. If interpretation is needed, each party shall 
provide additional copies for the interpreters.  
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
party is invit ed to limit the duration of its opening statement to not more than 75 minutes. If 
either party considers that it requires more time for its opening statement, it should inform 
the Panel and the other party at least 10 days prior to the meeting, together wi th an estimate 
of the expected duration of its statement. The Panel will accord equal time to the other party    
c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments or ask the other party ques tions.  
d. The Panel may subsequently pose questions to the parties.  WT/DS544/R/Add.1  
 
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  e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with China presenting its statement first. Before each party 
takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its closing statement, if available.  
f. Following the meeting:  
i. Each party shall submit a final written version of its opening statement no later than 
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same 
time, each party should also submit a final written version of any prepared closing 
statement that it delivered at the meeting.  
ii. Each party shall send in writ ing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the other party to which it wishes to receive 
a response in writing.  
iii. The Panel shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the time -frame established by the Panel 
before the end of the meeting.  
16. The Panel will communicate in advance concerning the conduct of the second substantive 
meeting, after having consulted with the parties.  
Third party session  
 
17. The third parties shall be present at the mee tings only when invited by the Panel to appear 
before it.  
18. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its del egation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
19. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow sufficient time to ensure availability of interpreters.  
20. (1) Each third party may present its views orally during a session of the first substantive 
meeting with the parties set aside for that purpose.  
(2) Each third party shall indicate to the Panel whether it intends to make an oral statement 
during the third party s ession, along with the list of members of its delegation, in advance of 
this session and no later than 5.00  p.m. (Geneva time) three working days before the third 
party session of the meeting with the Panel.  
21. The Panel will communicate in advance conce rning the conduct of the third -party session, 
after having consulted with the parties.  
Descriptive part and executive summaries  
 
22. The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall consis t of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in any way serve WT/DS544/R/Add.1  
 
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  as a substitute for the submissions of the parties and third parties in the Panel's ex amination of the 
case.  
23. Each party shall submit one integrated executive summary. The timing of the submission of 
the integrated executive summary shall be indicated in the timetable adopted by the Panel.  
24. The integrated executive summary shall be limited to no more than 30 pages.  
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. This 
integrated executive summary may also include a summary of resp onses to questions, if relevant. 
The executive summary to be provided by each third party shall not exceed six  pages. If a third -
party submission and/or oral statement does not exceed six pages in total, this may serve as the 
executive summary of that thir d party's arguments.  
Interim review  
 
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopte d by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
28. If no further meeting with the Panel is requested, each party may submit written comments 
on the other party' s written request for review, in accordance with the timetable adopted by the 
Panel. Such comments shall be limited to commenting on the other  party's  written request for 
review.  
Interim and Final Report  
29. The interim report, as well as the final repor t before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
Service of documents  
 
30. The following procedures regarding service of documents apply to all documents submitted by 
parties and third parties during the pr oceeding:  
a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047).  
b. Each party and third party shall submit 2 paper copies of its submissions and 2 paper 
copies of its Exhibits to t he Panel by 5.00 p.m. (Geneva time) on the due dates established 
by the Panel. The DS  Registrar shall stamp the documents with the date and time of 
submission. The paper version submitted to the DS Registry shall constitute the official 
version for the pur poses of submission deadlines and the record of the dispute. If any 
documents are in a format that is impractical to submit as a paper copy, then the party 
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or USB 
key only.  
c. Each party and third party shall also send an email to the DS Registry, at the same time 
that it submits the paper versions, attaching an electronic copy of all documents that it 
submits to the Panel, preferably in both Microsoft Word and PDF format. All such e mails 
to the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO 
Secretariat staff whose email addresses have been provided to the parties during the 
proceeding. If it is not possible to attach all the Exhibits to one email, the submitt ing party 
or third party shall provide the DS Registry with four copies of the Exhibits on USB keys, 
CD-ROMs or DVDs.  WT/DS544/R/Add.1  
 
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  d. In addition, each party and third party is invited to submit all documents through the 
Digital Dispute Settlement Registry (DDSR ) within 24 hours following the deadline for the 
submission of the paper versions. If the parties or third parties have any questions or 
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide 
(electronic copy provided)  or contact the DS Registry at DSRegistry@wto.org.  
e. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve any submissions in advance of the first substantive 
meeting with the Panel di rectly on the third parties. Each third party shall serve any 
document submitted to the Panel directly on the parties and on all other third parties. A 
party or third party may serve its documents on another party or third party by email or 
other electroni c format acceptable to the recipient without having to serve a paper copy, 
unless the recipient party or third party has previously requested a paper copy. Each party 
and third party shall confirm, in writing, that copies have been served on the parties an d 
third parties, as appropriate, at the time it provides each document to the Panel.  
f. Each party and third party shall submit its documents with the DS Registry and serve 
copies on the other party (and third parties if appropriate) by 5.00  p.m. (Geneva t ime) on 
the due dates established by the Panel.  
g.  As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with  a paper copy of the Interim Report and the Final Report.  
Correction of clerical errors in submissions  
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typograp hical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  
 
 
 WT/DS544/R/Add.1  
 
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  ANNEX  A-2 
WORKING PROCEDURES OF THE PANEL  
Revised on 19 July 2019 and 20 February 2020  
 
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settleme nt of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the docum ents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) In accordance with the DSU , nothing  in these Working Procedures  shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidentia l summary of the information 
contained in its submissions that could be disclosed to the public.  
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the  parties.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also  submit to the Panel, before the second substantive meeting of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the  Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  
Preliminary rulings  
4. (1) If the United States considers that the Panel should make a ruling before the issuan ce 
of the Report that certain measures or claims in the panel request or the complainant's first 
written submission are not properly before the Panel, the following procedure applies. 
Exceptions to this procedure shall be granted upon a showing of good cau se.  
a. The United States shall submit any such request for a preliminary ruling at the earliest 
possible opportunity and in any event no later than in its first written submission to the   WT/DS544/R/Add.1  
 
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  Panel. China shall submit its response to the request before the first substantive meeting 
of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling 
request before, during or after the first substantive meeting, or the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide reasons f or the ruling at the time that the ruling is made, 
or subsequently in its Report.   
d. Any request for such a preliminary ruling by the respondent before the first meeting, and 
any subsequent submissions of the parties in relation thereto before the first mee ting, 
shall be served on all third parties. The Panel may provide all third parties with an 
opportunity to provide comments on any such request, either in their submissions as 
provided for in the timetable or separately. Any preliminary ruling issued by th e Panel 
before the first substantive meeting on whether certain measures or claims are properly 
before the Panel shall be communicated to all third parties.  
(2) This procedure is without prejudice to the parties' right to request other types of 
preliminar y or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working language of the submission. The Pa nel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting ( whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shall be accompanied 
by an explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of th e record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. Exhi bits submitted by China should be numbered CHN -1, CHN -2, etc. Exhibits 
submitted by the United States should be numbered USA -1, USA -2, etc. If the last exhibit in 
connection with the first submission was numbered [XXX]  -5, the first exhibit in connection 
with the next submission thus would be numbered [XXX] -6.  
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a documen t that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again.  WT/DS544/R/Add.1  
 
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  (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of  the official record, the cited content of the website shall be 
provided in the form of an exhibit.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Ed itorial Guide for Panel Submissions (electronic copy 
provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.   
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing following the meeting, as provid ed for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel shall meet in closed session.  
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine t he composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedur es, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made to the P anel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite Chi na to make an opening statement to present its case first. 
Subsequently, the Panel shall invite the United States  to present its point of view. Before each 
party takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its statement. If interpretation is needed, each party shall 
provide additional copies for the interpreters.  
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
party is invited to limit the du ration of its opening statement to not more than 75 minutes. If 
either party considers that it requires more time for its opening statement, it should inform 
the Panel and the other party at least 10 days prior to the meeting, together with an estimate 
of the expected duration of its statement. The Panel will accord equal time to the other party    
c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments or ask the other party questions.  
d. The Pane l may subsequently pose questions to the parties.  WT/DS544/R/Add.1  
 
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  e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with China presenting its statement first. Before each party 
takes the floor, i t shall provide the Panel and other participants at the meeting with a 
provisional written version of its closing statement, if available.  
f. Following the meeting:  
i. Each party shall submit a final written version of its opening statement no later than 
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same 
time, each party should also submit a final written version of any prepared closing 
statement that it delivered at the meeting.  
ii. Each party shall send in writing, within the ti meframe established by the Panel before 
the end of the meeting, any questions to the other  party to which it wishes to receive 
a response in writing.  
iii. The Panel shall send in writing, within the timeframe established by the Panel before 
the end of the meet ing, any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the time -frame established by the Panel 
before the end of the meeting.  
16. The Panel will communicate in advance concerning the conduct of the second substantive 
meeting, after having consulted with the parties.  
Third party session  
 
17. The third parties shall be present at the meetings only when in vited by the Panel to appear 
before it.  
18. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
19. A request for interpretatio n by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow sufficient time to ensure availability of interpreters.  
20. (1) Each third party may present its views orally during a session of the first substantive 
meeting with the parties set aside for that purpose.  
(2) Each third party shall indicate to the Panel whether it intends to make an oral statement 
during the third party session, along with the li st of members of its delegation, in advance of 
this session and no later than 5.00  p.m. (Geneva time) three working days before the third 
party session of the meeting with the Panel.  
21. The Panel will communicate in advance concerning the conduct of the third-party session , 
after having consulted with the parties.   
Descriptive part and executive summaries  
 
22. The description of the arguments of the parties and third parties in the descri ptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in any way serve WT/DS544/R/Add.1  
 
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  as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case.  
23. Each party shall submit one integrated executive summar y. The timing of the submission of 
the integrated executive summar y shall be indicated in the timetable adopted by the Panel.  
24. The integrated executive summary shall be limited to no more than 30 pages.  
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadl ine may not be 
specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. This 
integrated execut ive summary may also include a summary of responses to questions, if relevant. 
The executive summary to be provided by each third party shall not exceed six  pages. If a third -
party submission and/or oral statement does not exceed six pages in total, this m ay serve as the 
executive summary of that third party's arguments.  
Interim review  
 
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
28. If no further meeting with the Panel is requested, each party m ay submit written comments 
on the other party's written request for review, in accordance with the timetable adopted by the 
Panel. Such comments shall be limited to commenting on the other party's written request for 
review.  
Interim and Final Report  
29. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
Service of documents  
 
30. The following procedures regarding service of documents apply to all documents submitt ed by 
parties and third parties during the proceeding:  
a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047).  
b. Each party and third party shall submit 2 paper cop ies of its submis sions and 2 paper 
copies of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates established 
by the Panel. The DS  Registrar shall stamp the documents with the date and time of 
submission. The paper version submitted to the DS Registry shal l constitute the official 
version for the purposes of submission deadlines and the record of the dispute. If any 
documents are in a format that is impractical to submit as a paper copy, then the party 
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or USB 
key only . 
c. Each party and third party shall also send an email to the DS Registry, at the same time 
that it submits the paper versions, attaching an electronic copy of all documents that it 
submits to the Panel, preferably in b oth Microsoft Word and PDF format. All such emails 
to the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO 
Secretariat staff whose email addresses have been provided to the parties during the 
proceeding. If it is not possible to atta ch all the Exhibits to one email, the submitting party 
or third party shall provide the DS Registry with four copies of the Exhibits on USB keys, 
CD-ROMs or DVDs.  WT/DS544/R/Add.1  
 
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  d. In addition, each party and third party is invited to submit all documents through the 
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the 
submission of the paper versions. If the parties or third parties have any questions or 
technical difficulties relating to the DDSR, they are invited to consult the DDSR  User Guide 
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.  
e. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall serve  directly on the third parties  any submissions  up to a nd including 
the responses to the questions posed by the Panel following the first substantive meeting 
of the Panel with the parties, as well as the final versions of the oral statements made 
during this meeting . In addition, each party shall serve directl y on the third parties second 
written submissions, final versions of oral statements made during the second substantive 
meeting, responses to the Panel's questions after the second substantive meeting, and 
comments on those responses . Each third party shal l serve any document submitted to 
the Panel directly on the parties and on all other third parties. A party or third party may 
serve its documents on another party or third party by email or  other electronic format 
acceptable to the recipient without havin g to serve a paper copy , unless the recipient party 
or third party has previously requested a paper copy. Each party and third party shall 
confirm, in writing, that copies have been served on the parties and third parties, as 
appropriate, at the time it pr ovides each document to the Panel.  
f. Each party and third party shall submit its documents with the DS Registry and serve 
copies on the other party (and third parties if appropriate) by 5.00  p.m. (Geneva time) on 
the due dates established by the Panel.  
g.  As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with a paper copy of the Interim Report and the Final Report.  
Correction of clerical errors in submissions  
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be ma de promptly following the filing 
of the submission in question.  
 
 
 WT/DS544/R/Add.1  
 
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  ANNEX  A-3 
ADDITIONAL WORKING PROCEDURES OF THE PANEL  
CONCERNING MEETINGS WITH REMOTE PARTICIPATION  
Adopted on 1 December 2020  
General  
1. These Additional Working Procedures set out terms for holding meetings with the Panel where 
all of the participants shall attend by remote means.  
2. These Additional Working Procedures are meant to develop and complement paragraph 16 of 
the Working Procedure s of the Panel.  
Definitions  
3. For the purposes of these Additional Working Procedures:  
"Remote participant"  means any registered person attending the meeting with the Panel by 
remote means.  
"Platform"  means Cisco Webex software through which remote particip ants attend the meeting 
with the Panel.  
"Host"  means the designated person within the WTO Secretariat responsible for the 
management of the platform.  
Equipment and technical requirements  
4. Each party shall ensure that all remote participants of its delegatio n join the meeting using the 
designated platform, and meet the minimum equipment and technical requirements set out by 
the platform provider for the effective conduct of the meeting . 
5. All technical questions, including the minimum equipment and technical re quirements  for the 
usage of the Platform, will be addressed in the advance testing sessions in paragraph 8 below 
between the Host and the parties.  
Technical support  
6. (1) Each party is responsible for providing technical support to the remote participants of  its 
delegation.  
(2) The host will assist remote participants in accessing and using the platform in preparation 
of, and during, the meeting with the Panel.  
Pre-meeting  
Registration  
7. Each party shall provide  to the Panel the list of the members of its deleg ation, on a dedicated 
form to be provided by the WTO Secretariat, no later than 5:00 p.m. (Geneva time) one week 
before the first day of the meeting with the Panel.  WT/DS544/R/Add.1  
 
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  Advance testing  
8. Before the meeting with the Panel, the WTO Secretariat will hold two testi ng sessions with all 
remote participants of each party: (i) a separate one for each party's remote participants, and 
(ii) a joint session with all participants in the meeting, including all remote participants of the 
parties and the Panel joining remotely.  Such sessions will seek to reflect, as far as possible, the 
conditions of the meeting.  
Confidentiality and security  
9. The Panel shall meet in closed session. The content and conduct of the meeting are confidential 
and no recording by the parties of any part of the meeting is allowed.  
10. The Panel will record the meeting and keep an official copy of it for the Panel's record.  
Conduct of the meeting  
Access to the virtual meeting room  
11. (1) The host will invite remote participants via email to join the virtual  meeting room on the 
platform.  
(2) For security reasons, access to the virtual meeting room will be password -protected and 
limited to registered participants. Remote participants shall not forward or share the meeting 
link or password.  
(3) Each party sha ll ensure that only registered participants from its delegation join the virtual 
meeting room.  
Advance log -on 
12. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled start 
time of each session of the meeting with the Panel.  
(2) All remote participants shall log on to the platform at least 30 minutes in advance of the 
scheduled start time of each session of the meeting with the Panel.  
Document sharing  
13. (1) Each party shall provide the Panel and other participants with a provi sional written version 
of its opening statement and, if available, of its closing statement, before delivery at the 
meeting. The parties are invited to make their opening statements available to the Panel the 
day before the commencement of the meeting.  
(2) Any participant wishing to share a document with the Panel and other participants during 
the meeting shall do so before first referring to such document at the meeting.  
Technical matters  
14. (1) Each party shall designate a contact person who can liaise with  the host during the course 
of the meeting to report any technical issues that arise with respect to the platform. The host 
can be contacted via the platform, by sending an email to leslie.stephenson@wto.org , or by 
calling +41 022 739 6148 . 
(2) Should any technical interruptions occur, the host will directly coordinate with the affected 
participants to resolve the issue. After consulting the parties, the Panel may pause the session 
until the technical issue is resolved or may continue the pro ceedings with those participants that 
continue to be connected.  
_______________  WT/DS544/R/Add.1  
 
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ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the  arguments of the  People's Republic of 
China 19 
Annex  B-2 Integrated executive summary  of the arguments of the United States of 
America  35 
 
 WT/DS544/R/Add.1  
 
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  ANNEX  B-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE PEOPLE'S REPUBLIC OF CHINA  
I. MEASURES AT ISSUE  
1. This dispute concerns additional duties that the United States has imposed upon imports of 
certain steel and aluminium products at levels in excess of its  bound tariff commitments and in 
contravention of its obligation to extend most -favoured nation treatment to imports from all WTO 
Members. The United States imposed these additional duties effective 23 March 2018 pursuant to 
Section  232 of the Trade Expans ion Act of 1962 ("Section  232").  
2. The measures at issue in this dispute consist of the additional import duties on steel and 
aluminium products, the country -specific exemptions granted from those duties, the related quota 
agreements, and the product -specifi c exclusion process. The measures at issue also include the 
additional import duties that the United States has subsequently imposed on derivative steel and 
aluminium articles and the country -specific exemptions granted from those duties.  
3. China is challeng ing two distinct, broader measures, a steel safeguard measure and an 
aluminium safeguard measure , and their constituent elements . Each of these broader measures is, 
in fact, comprised of a set of individual element s that all address a particular category o f products, 
i.e. steel or aluminium products.  
4. At a minimum, the broader steel safeguard measure consists of the additional import duties 
imposed on steel products, including those imposed on derivative steel articles; the country -specific 
exemptions, inclu ding those provided in relation to derivative steel articles; and import quotas 
pertaining to steel products. The product exclusion process as applied to steel products and individual 
product exclusions granted in relation to steel products also form part of this broader steel safeguard 
measure.  
5. At a minimum, the broader aluminium safeguard measure consists of the additional import 
duties imposed on aluminium products, including those imposed on derivative aluminium articles; 
the country -specific exemptions , including those provided in relation to derivative aluminium 
articles; and import quotas pertaining to aluminium products. The product exclusion process as 
applied to aluminium products and individual product exclusions granted in relation to aluminium 
products also form part of this broader aluminium safeguard measure.1 
6. These two broader measures and their constituent elements are specifically identified in 
China's panel request. The United States has not disputed China's characterization of the measure s 
at issue as consisting of two broader steel and aluminium measures comprised of individual 
elements.2 
7. The additional import duties imposed on derivative steel and aluminium products and country -
specific exemptions therefrom are within the Panel's terms of reference. The language of China's 
panel request specifically references "any amendments, supplements, extensions, replacement 
measures, renewal measures, related measures, or implementing measures."3 Furthermore, the 
additional import duties on deriva tive products did not affect or change the "essence" of the initial 
import duties. Proclamation 9980 simply extended the initial duties to derivative steel and aluminium 
products. The additional duties on derivative products are indisputably closely connec ted to the initial 
duties as they address the same categories of products, impose the same level of duties, are adopted 
pursuant to the same U.S. laws, and pursue the same objective of preventing or remedying injury 
to the U.S. domestic steel and aluminium  industries. Excluding the additional import duties on 
derivative products would also prevent the Parties from securing a positive resolution to this dispute 
 
1 See China's response to Panel question Nos. 1 and 2(a), paras. 1 -7. 
2 See China's response to Panel question Nos. 1, 82, and 83; China's comments on the United States' 
response to Panel question Nos. 82 and 83.  
3 See China's response to Panel question No. 87, para.  24, quoting China's request for the 
establishment of a panel, p.  3. WT/DS544/R/Add.1  
 
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  in that the United States would be able to maintain its illegal safeguard measures on a narrower 
range of products without consequence.4 
II. THE SECTION  232 MEASURES ARE SUBJECT TO THE AGREEMENT ON SAFEGUARDS 
AND ARE INCONSISTENT WITH CERTAIN PROVISIONS OF THAT AGREEMENT  
8. Properly examined, the measures before the Panel are safeguard measures that are subject 
to and inconsistent with the Agreement on Safeguards. These inconsistencies are not even 
potentially justifiable under Article  XXI(b) of the GATT 1994, an exception provision under a different 
agreement.  
A. The Section  232 Measures Fall Within the Scope of the Agreement on 
Safeguards  
9. In Indonesia – Iron or Steel Products , the Appellate Body identified certain "constituent 
features" that must be present in order for a panel to properly determine that a measure constitutes 
a safeguard measure.5 First, the measure must suspend, in whole or in part, a GATT obligation or 
withdraw or modify a GATT concession. Second, the suspension of the GATT obligation, or the 
withdrawal from or modification of the GATT concession in question, must be designed to preven t 
or remedy serious injury to the Member's domestic industry caused or threatened by increased 
imports of the subject product. Thus, China submits that the Panel is required to assess objectively 
whether the Section  232 measures constitute safeguard measur es. China further submits that in 
conducting its assessment, the Panel should follow the approach articulated by the Appellate Body 
in Indonesia – Iron or Steel Products .6 
10. It is indisputable that the Section  232 measures suspend a GATT obligation or withdraw or 
modify a GATT concession. The Section  232 measures impose duties on steel and aluminium imports 
that exceed the applicable bound rates set forth in the U.S. Schedule of Concessions in violation of 
Article  II of the GATT 1994 . The exemptions granted to certain Members also confer an "advantage, 
favour, privilege, or immunity" that is not extended "immediately" and "unconditionally" to like 
products originating in the te rritories of all other Members, in violation of Article  I:1 of the GATT 
1994. For these reasons, the Section 232 measures present the first of the two requisite "constituent 
features" of a safeguard measure identified by the Appellate Body in Indonesia – Iron or Steel 
Products .7 
11. The same actions that constitute a withdrawal or modification of a concession under Article  XIX 
may also constitute a violation of Articles II:1 and I:1 of the GATT 1994. Article XIX authorizes a 
Member to suspend  certain substantive obligations such that no violation of those obligations occurs, 
so long as it conforms to the conditions set forth in that provision. Articles II:1and I:1 impose  certain 
substantive obligations.  A measure that fails to conform to the requirements of Articles II:1 and I:1 
necess arily violates the obligations set forth in those provisions unless an exception applies.8 
12. It is similarly clear that the Section 232 measures present the second "constituent feature" 
identified by the Appellate Body in Indonesia – Iron or Steel Products . There is ample evidence 
demonstrating that the withdrawal or modifications of GATT concessions are "designed to prevent 
or remedy serious injury" to the U.S. steel and aluminium industries. This evidence includes the 
statutory basis for the Section  232 in vestigations, the express findings of the Section  232 Reports, 
the relevant presidential proclamations, and other public statements by high -ranking U.S. officials, 
including the U.S. President.9 
13. For example, the conclusion that a central and independent a spect of the Section  232 
measures is to prevent or remedy serious injury to the domestic industries is supported by a 
memorandum prepared by the U.S. Department of Defense ("DoD"), expressly advising the U.S. 
 
4 See China's response to Panel question No. 87, para.  25; China's comments on the United States' 
response to Panel question No. 87; China's response to Panel question No. 96.  
5 See China's first written subm ission, para. 35, quoting Appellate Body Report, Indonesia – Iron or 
Steel Products , para.  5.60. 
6 See China's first written submission, paras. 32 -41. 
7 See China's first written submission, para.  42.  See also China's response to Panel question No. 89.  
8 See China's response to Panel question No. 89, paras. 27 -31. 
9 See China's first written submission, Part IV.A.3.  WT/DS544/R/Add.1  
 
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  Secretary of Commerce that the proposed restric tions on imports were not necessary to meet 
national defence requirements. The memorandum reviewed the conditions described in the 
Section  232 Reports, including the effects of increased imports on the condition of the domestic U.S. 
steel and aluminium ind ustries, and concluded that these conditions do not "impact the ability of 
DoD programs to acquire the steel or aluminum necessary to meet national defense requirements". 
In reaching this conclusion, the Secretary of Defense stated that "U.S. military requ irements for 
steel and aluminum each only represent about three percent of U.S. production."10 
14. Taken together, this body of evidence establishes a "demonstrable link" between "the most 
central" aspects of the measures at issue and "a specific objective" of  preventing and remedying 
serious injury to domestic industries.11 
B. The United States Is Mistaken that Notification Determines the Substantive 
Applicability of the Agreement on Safeguards  
15. The U.S. contention that the measures at issue are not subject to the Agreement on 
Safeguards rests entirely on the proposition that because the United States did not notify those 
measures to the Committee on Safeguards as required by Article  12 of the Agreement on Safeguards 
and Article  XIX:2 of the GATT 1994, the Panel  must conclude that the measures are not safeguard 
measures. In other words, the United States would have the Panel believe that the proper 
characterization of the measures at issue in relation to the covered agreements depends entirely 
upon the unilateral  decision of the United States not to notify its measures to the Committee on 
Safeguards.12 
16. Nothing in the text of the Agreement on Safeguards or Article  XIX of the GATT 1994 supports 
the conclusion that notification is a prerequisite to substantive applic ability. Article  XIX:1(a) of the 
GATT 1994 defines what a safeguard measure is. Article  XIX:1(a) establishes that a safeguard 
measure is a measure designed to prevent or remedy serious injury to a domestic industry caused 
or threatened by increased imports , through the mechanism of suspending, withdrawing, or 
modifying a GATT obligation or concession. It is these two elements that make a measure a 
safeguard measure. Article  XIX:1(a) does not refer to notification at all, much less as a prerequisite 
to subst antive applicability.13 
17. The United States' "notice and invocation" argument cannot be reconciled with Article  12.8 of 
the Agreement on Safeguards, which provides that "[a]ny Member may notify the Committee on 
Safeguards of all laws, regulations, administra tive procedures and any measures or actions dealt 
with in this Agreement that have not been notified by other Members that are required by this 
Agreement to make such notifications." A safeguard measure is clearly a "measure or action dealt 
with" in the Ag reement on Safeguards. Under Article  12.1, a Member "taking a decision to apply or 
extend a safeguard measure" is "required by this Agreement" to provide notification to the 
Committee on Safeguards. Article  12.8 establishes that another Member "may notify the Committee 
on Safeguards" when a Member "taking a decision to apply or extend a safeguard measure" has not 
provided the required notification. Yet under the U.S. interpretation of Article  12, such an event 
could never occur because the failure to provid e notification would mean that the measure in 
question is not a safeguard measure, i.e. a "measure or action dealt with" in the Agreement on 
Safeguards. Under the U.S. interpretation, Article  12.8 would be devoid of any meaning or practical 
effect.14 
18. The r equirement to provide notice is a legal obligation that Members have in relation to 
measures that are, objectively, safeguard measures. Notification is not an element of what makes a 
measure a safeguard measure in the first place. This conclusion based on the text of Article  XIX and 
the Agreement on Safeguards is fully consistent with the Appellate Body's findings in Indonesia – 
Iron or Steel Products . The U.S. position that notification is a prerequisite to the substantive 
 
10 See China's first written submission, paras. 68 -70, quoting Letter from James N. Mattis, Secretary of 
Defense, to Wilbur L. Ross Jr., Secret ary of Commerce (2018).  
11 See China's first written submission, para.  43, quoting Appellate Body Report, Indonesia – Iron or 
Steel Products , paras. 5.60, 5.58, and 5.56.  
12 See China's second written submission, para.  14. 
13 See China's second written submis sion, para.  15. 
14 See China's second written submission, para.  19; China's comments on the United States' closing 
statement at the second meeting of the Panel, para.  25. WT/DS544/R/Add.1  
 
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  applicability of Article  XIX and the Agreement on Safeguards finds no support in the text of those 
provisions, and is contrary to the well -established principle that Members are not free to pick and 
choose the legal disciplines to which their actions and measures are subject.15 
C. The Sec tion 232 Measures Are Not Removed from the Agreement on 
Safeguards by Virtue of Article  11.1(c)  
19. The United States further argues that the measures at issue are not subject to the Agreement 
on Safeguards by virtue of Article  11.1(c) of that agreement. Artic le 11.1(c) provides that the 
Agreement on Safeguards "does not apply to measures sought, taken or maintained by a Member 
pursuant to provisions of GATT 1994 other than Article  XIX". 
20. Article  11.1(a) of the Agreement on Safeguards provides that "[a] Member s hall 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." The United States does not con test that, where a measure is properly characterized as 
an "emergency action on imports of particular products as set forth in Article  XIX of GATT 1994" 
(i.e. as a safeguard measure), Article  11.1(a) requires the Member taking that action to do so 
exclusiv ely in accordance with Article  XIX and the Agreement on Safeguards.  
21. The only response that the United States has to Article  11.1(a) is its contention that because 
the United States did not notify the measures at issue to the Committee on Safeguards, the Un ited 
States did not "take or seek" those measures pursuant to Article  XIX of the GATT 1994 and therefore 
the stricture in Article  11.1(a) does not apply.  
22. The United States is mistaken in its view that notification to the Committee on Safeguards is 
a prereq uisite to the substantive applicability of the Agreement on Safeguards. Notification is a legal 
obligation in respect of safeguard measures, not a definitional element of what makes a measure a 
safeguard measure. By its terms, Article  11.1(a) of the Agreem ent on Safeguards applies to "any" 
measure that is objectively characterized as a safeguard measure. The Section 232 measures are 
objectively characterized as safeguard measures, and therefore the stricture established in 
Article  11.1(a) applies to those m easures.  
23. For the same reason, the carve -out established in Article  11.1(c) does not apply to the Section 
232 measures. Where a measure is properly characterized as a safeguard measure based on an 
objective examination of its features, it is necessarily a m easure "sought, taken or maintained" 
under Article  XIX of the GATT 1994 and is, for that reason, subject to the Agreement on Safeguards 
in accordance with Article  11.1(a).  
24. For the United States, what matters is the legal basis for the measure as asserted u nilaterally 
by the responding Member.  However, the text of the relevant provisions of the covered agreements, 
as interpreted in prior panel and Appellate Body reports, makes clear that what matters is the 
objective characterization of a measure based on an examination of its relevant features. A measure 
that is objectively a safeguard measure does not become a measure "sought, taken or maintained 
by a Member pursuant to provisions of GATT 1994 other than Ar ticle XIX" based on the unilateral 
assertion – the "say -so" – of the Member taking the action. For these reasons, Article  11.1(c) of the 
Agreement on Safeguards does not exempt the Section 232 measures from that agreement's scope 
of application.16 
25. China does not perceive any basis for the Panel to have recourse to supplementary means of 
interpretation under Article  32 of the Vienna Convention in relation to Article  11.1(c). The 
interpretation of the Agreement on Safeguards and Article  XIX of the GAT T 1994 that results from 
the general rule of interpretation under Article  31 does not leave the meaning of the relevant 
provisions ambiguous or obscure, or lead to a result which is manifestly absurd or unreasonable. On 
the contrary, a proper consideration  of the ordinary meaning, context, and object and purpose of 
Article  XIX and the Agreement on Safeguards leaves no doubt that "invocation and notification" are 
 
15 See China's second written submission, paras. 20 -25.  See also China's comments on t he United 
States' closing statement at the second meeting of the Panel, Part  I.C. 
 
16 See China's second written submission, paras. 26 -31.  See also China's comments on the United 
States' closing statement at the second meeting of the Panel, Part I.D.  WT/DS544/R/Add.1  
 
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  not prerequisites to the substantive applicability of these provisions. The conclusion that "inv ocation 
and notification" are not prerequisites to substantive applicability, far from being manifestly absurd 
or unreasonable, is the only interpretive conclusion consistent with the object and purpose of the 
Agreement on Safeguards, including its objecti ve of reimposing multilateral control over safeguard 
and other grey -area measures. Thus, there is no reason for the Panel to consider supplementary 
means of interpretation under Article  32. 
26. But even if the Panel were to consider supplementary means of inte rpretation, nothing in the 
negotiating history to which the United States refers supports its assertion that a Member may 
unilaterally determine the law (if any) to which a particular measure is subject, including a unilateral 
determination as to whether a  particular measure is or is not a safeguard measure. The drafting 
history of Article  11.1(c) to which the United States refers reflects nothing more than the drafters' 
recognition that there are a variety of "trade -restrictive" measures that a Member may take under 
the GATT 1994, in derogation of obligations that otherwise would apply. For example, a Member 
may impose a quantitative restriction in derogation of Article  XI:1 of the GATT 1994 if any of the 
conditions in Article  XI:2 of the GATT 1994 are sati sfied. The text that eventually became 
Article  11.1(c) of the Agreement on Safeguards simply establishes that the agreement, although 
governing a certain type of trade -restrictive measure (those described in Article  XIX of the GATT 
1994), does not apply to  trade -restrictive measures taken "pursuant to" these other provisions.17 
D. The Section  232 Measures Are Inconsistent with Articles 2.1, 2.2, 4.1, 4.2, 5.1, 
7.1, 7.4, 11.1(a), 12.1, 12.2, and 12.3 of the Agreement on Safeguards  
27. The Section  232 measures ar e inconsistent with multiple provisions of the Agreement on 
Safeguards.  
28. China submits that the United States had no right to impose safeguard measures because the 
determinations of serious injury reached by the USDOC suffer from multiple, fatal flaws. Thes e flaws 
include the failure to establish the existence of "unforeseen developments"; the failure to apply the 
Section  232 measures to products imported from all Members; the failure to examine all relevant 
factors having a bearing on the situation of the d omestic industry; and the failure to avoid the 
attribution of injury caused by other factors to that caused by increased imports. The USDOC also 
failed to satisfy the overarching requirement of providing a "reasoned and adequate explanation" of 
how the fac ts support its determinations of serious injury. Because of these multiple, critical failures, 
the Section  232 measures have no legal basis. The United States therefore had no right to apply 
safeguard measures to steel and aluminium imports.18 
29. The United S tates has acted inconsistently with Article  2.1 of the Agreement on Safeguards 
for two principal reasons. First, Article  2.1 makes clear that a Member may apply a safeguard 
measure only where that Member has reached a determination of serious injury pursua nt to the 
relevant provisions of the Agreement on Safeguards, including Article  4. The Section  232 
determinations were not reached in accordance with Articles 4.1 or 4.2. Consequently, the 
Section  232 measures are inconsistent with Article  2.1. Second, it is well established that for a 
safeguard measure to be imposed consistently with Article  2.1, the competent authority must 
establish the existence of "unforeseen developments" as set forth in Article  XIX:1(a) of the GATT 
1994. The USDOC has failed to demon strate the existence of "unforeseen developments".19 
30. The United States has acted inconsistently with Article  2.2 because the Section  232 measures 
do not apply to imported steel and aluminium products irrespective of their sources.20 
31. The United States has a cted inconsistently with Article  4.1(c) because the USDOC did not 
define the relevant "like or directly competitive" products in accordance with Article  4.1(c) prior to 
determining that increased steel and aluminium imports have caused or are threatening t o cause 
serious injury to U.S. domestic producers.21 
 
17 See China's response to Panel question No. 97, paras. 12 -17. 
18 See China's first written submission, paras. 86 and 87.  
19 See China's first written submission, paras. 88 -93. 
20 See China's first written submission, paras. 94 -98. 
21 See China's first written submission, paras. 99 -108. WT/DS544/R/Add.1  
 
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  32. The United States has acted inconsistently with Article  4.2(a) because the United States failed 
to ensure the data pertaining to the injury factors examined in the Section  232 Reports was 
sufficiently re presentative of the domestic industry as a whole and to provide reasoned and adequate 
explanations for its conclusions. Consequently, the United States has also violated Article  2.1.22 
33. The United States has acted inconsistently with Article  4.2(b). Article  4.2(b) requires the 
competent authority to establish the existence of a "genuine and substantial relationship of cause 
and effect" between increased imports and serious injury. The USDOC's failure to define the relevant 
domestic industries under Article  4.1(c) or to examine data sufficiently representative of those 
industries under Article  4.2(a) necessarily results in a failure to establish a "genuine and substantial 
relationship of cause and effect". In order to link the increased imports to serious inju ry, the USDOC 
first had to define serious injury to the domestic industry in accordance with Article  4.1(c), which it 
failed to do. The United States has also acted inconsistently with Article  4.2(b), second sentence, 
because it has failed to ensure that i njury caused by factors other than the increased imports has 
not been attributed to those imports.23 
34. The United States has also applied safeguard measures beyond "the extent necessary to 
prevent or remedy serious injury and to facilitate adjustment" as req uired under Article  5.1 of that 
agreement. China has established that the United States violated Article  4.2(b). Thus, the United 
States has violated Article  5.1, first sentence.24 
35. The United States has acted inconsistently with Articles 7.1 and 7.4 of the  Agreement on 
Safeguards. China has demonstrated that the Section  232 measures were not imposed pursuant to 
a valid finding of serious injury or threat of serious injury. Ipso facto , the Section  232 measures 
have been imposed for longer than is "necessary to prevent or remedy serious injury and to facilitate 
adjustment" and are therefore inconsistent with Article  7.1. The Section  232 measures were 
imposed in March of 2018. The measures have therefore been in place for over one year. The 
measures have not be en progressively liberalized. Thus, the Section  232 measures have also been 
imposed in a manner that is inconsistent with Article  7.4 of the Agreement on Safeguards.25 
36. The United States has acted inconsistently with Article  11.1(a) of the Agreement on 
Safeguards. Article  11.1(a) prohibits the imposition of safeguard measures unless those measures 
are imposed consistently with Article  XIX of the GATT 1994 and the provisions of the Agreement on 
Safeguards. China has demonstrated that the United States has tak en emergency action on imports 
in a manner that is inconsistent with Articles 2, 4, 5, 7, and 12 (discussed below) of the Agreement 
on Safeguards and, consequently, Article  XIX of the GATT 1994.26 
37. The United States has acted inconsistently with Article  12.1(a), (b), and (c), and Article  12.2 
of the Agreement on Safeguards, and, consequently, Article  XIX:2 of the GATT  1994. The United 
States did not notify the WTO Committee on Safeguards prior to the USDOC's initiation of the 
investigations or the publicatio n of its findings, nor did it notify the Committee prior to its decision 
to apply the Section  232 measures.  
38. Finally, the United States has acted inconsistently with Article  12.3 of the Agreement on 
Safeguards and, consequently, Article  XIX:2 of the GATT 1994. Article  12.3 requires a Member 
proposing to apply a safeguard measure to provide exporting Members with sufficient information 
and time to allow for the possibility, through consultations, for a meaningful exchange on the issues 
identified. The United States did not submit a notification under Article  12.1(b) that included an offer 
to engage in consultations, nor did it notify its willingness to engage in consultations in accordance 
with Article  12.3 on any other occasion. The United States expre ssly refused to engage in prior 
consultations.27 
 
22 See China's first written submission, paras. 109 -119. 
23 See China's first written submission, paras. 120 -130. 
24 See China's first written submission, paras. 131 -134. 
25 See China's first written submis sion, paras. 135 -138. 
26 See China's first written submission, paras. 139 -140. 
27 See China's first written submission, paras. 141 -148. WT/DS544/R/Add.1  
 
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  39. The United States does not dispute that, once properly characterized as safeguard measures, 
its measures violate the provisions of the Agreement on Safeguards identified by China in its request 
for establish ment of a panel and in its first written submission.28 
E. Article  XXI(b) of the GATT 1994 Does Not Apply to the Agreement on 
Safeguards  
40. Under well -established jurisprudence, the fact that the Agreement on Safeguards elaborates 
upon Article  XIX of the GATT 1994 and contains various references to the GATT  1994 is insufficient, 
on its own, to establish that Article  XXI of the GATT 1994 is available as a defence to violations of 
the Agreement on Safeguards. The textual linkages between the Agreement on Safeguar ds and the 
GATT 1994 are unlike the single circumstance in which the Appellate Body has found a GATT 
exception applicable to a different covered agreement in the absence of an express incorporation of 
the exception. The fact that the Agreement on Safeguard s does not expressly incorporate the 
exceptions provisions of the GATT 1994, whereas other covered agreements do, creates a strong 
presumption (at a minimum) that those exceptions are not available under the Agreement on 
Safeguards.29 
41. The United States' ar gument about the relationship between Article  XXI and the Agreement 
on Safeguards all comes back to its contention that because the United States did not notify its 
measures to the Committee on Safeguards – that is, because the United States did not self -designate 
its measures as actions taken under Article  XIX and the Agreement on Safeguards – it follows that 
those measures were "sought, taken or maintained … pursuant to provisions of GATT 1994 other 
than Article  XIX" and are therefore removed from the sco pe of application of the Agreement on 
Safeguards by virtue of Article  11.1(c). China has already demonstrated that this contention is 
incorrect. Notification is a legal requirement in respect of measures that are objectively safeguard 
measures, not an elem ent of what makes a measure a safeguard measure in the first place.30 
42. For these reasons, the Panel should find that the Section  232 measures are safeguard 
measures that are inconsistent with the Agreement on Safeguards, and that Article  XXI(b) of the 
GATT 1994 is not available as a potential defence to those violations.  
III. THE SECTION  232 MEASURES ARE INCONSISTENT WITH ARTICLES  I:1, II:1, AND 
X:3(A) OF THE GATT 1994  
A. Articles II:1(a) and (b) of the GATT 1994  
43. The additional import duties of 25 percent on  steel imports and 10 percent on aluminium 
imports are covered by Article  II:1(b) because they constitute "ordinary customs duties". The 
additional import duties have been imposed on an ad valorem basis and are explicitly defined as 
"ordinary customs dutie s". 
44. The additional tariffs are indisputably effective "on … importation." Proclamations  9705 and 
9704 provide that the additional import duties on steel and aluminium products respectively "shall 
be effective with respect to goods entered, or withdrawn fro m warehouse for consumption, on or 
after 12:01 a.m. eastern daylight time on March 23, 2018".  
45. If the Panel were to find that the Section  232 measures are not "ordinary customs duties", it 
should find instead that the measures constitute "other duties or ch arges" imposed inconsistently 
with paragraph 1(b) of Article  II because no such "other duty or charge" was recorded in the U.S. 
Schedule of Concessions consistently with the Understanding on Interpretation of Article  II:1(b) of 
the GATT 1994.  
46. The additiona l duties that the United States has imposed upon imports of steel and aluminium 
products exceed its bound tariff commitments, in clear contravention of Article  II. Prior to the 
imposition of the Section  232 measures, the HTSUS provided that the products co vered could enter 
 
28 See China's second written submission, para.  5; China's opening statement at the first meeting of 
Panel, para.  9; China' s comments on the United States' closing statement at the second meeting of the Panel, 
para. 33.  
29 See China's response to Panel question Nos. 78 and 79; China's second written submission, para.  36. 
30 See China's second written submission, para. 42.  WT/DS544/R/Add.1  
 
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  the United States at rates ranging from duty -free to 6.5 percent. For all tariff headings and 
subheadings covered by the measures, the imposition of the additional import duties of 25 percent 
(50 percent in the case of Turkey) on steel pr oducts and 10 percent on aluminium products result 
in the imposition of duties that exceed the bound levels in the U.S. Schedule of Concessions for 
those products.31 
47. For the same reasons elaborated in China's first written submission, the additional import  
duties on derivative steel and aluminium products constitute ordinary customs duties. The additional 
duties on derivative products also exceed the bound rates set out in the U.S. Schedule. Even if the 
Panel were to conclude that the duties on derivative s teel and aluminium products do not constitute 
ordinary customs duties, they would nevertheless be prohibited under Article II:1(b), second 
sentence, as they would constitute "other duties or charges" that were not recorded in the U.S. 
Schedule and do not c orrespond to duties or charges applied by the United States as of the date of 
the entry into force of the GATT 1994.32 
48. Thus, the United States has acted inconsistently with Article II:1(a) and (b) of the GATT 1994, 
because the United States has not provide d treatment no less favourable to steel and aluminium 
products originating in China than that provided for in the United States' Schedule annexed to the 
GATT 1994.  
B. Article  I:1 of the GATT 1994  
49. The exemptions and quota agreements that the United States has entered into with certain 
countries constitute an advantage, favour, privilege, or immunity that the United States has failed 
to extend, immediately and unconditionally, to all other Members, in violation of Article  I. 
50. The exemptions have been g ranted from "customs duties and charges of any kind imposed on 
or in connection with importation" as referenced in Article  I:1. The quota agreements entered into 
by Argentina, Brazil, and South Korea are also covered by Article  I:1 because the proclamation s 
setting forth those agreements constitute "rules and formalities in connection with importation". The 
exemptions to the Section  232 measures therefore fall within the scope of application of Article  I:1.  
51. The exemptions have been granted from "customs du ties and charges of any kind imposed on 
or in connection with importation" as referenced in Article  I:1. The quota agreements entered into 
by Argentina, Brazil, and South Korea are also covered by Article  I:1 because the proclamations 
setting forth those a greements constitute "rules and formalities in connection with importation". The 
exemptions to the Section  232 measures therefore fall within the scope of application of Article  I:1. 
52. Through the creation of country -specific exemptions, the United States ha s conferred an 
"advantage, favour, privilege, or immunity" on steel and/or aluminium products originating in the 
territories of certain Members that is not extended "immediately" and "unconditionally" to like 
products originating in the territories of all other Members. Under the Section 232 measures, 
Members with which the United States has a "security relationship" can negotiate unconditional 
exemptions or exemptions in exchange for quota agreements that ensure large volumes of imports 
reflecting their hi storic import performance will be subject to normal duty rates. These Members can 
also choose to subject their imports to additional duties when doing so will best suit the needs of 
their domestic industries. No other Members have been permitted by the Uni ted States to maximize 
the competitive opportunities for their products in the same manner as Argentina, Australia, Brazil, 
or South Korea. The "advantage" conferred by this opportunity has not been granted "immediately" 
or "unconditionally" to all other M embers. Thus, the United States has violated the obligation set 
forth in Article  I:1 of the GATT 1994.33 
53. The additional import duties on derivative products are similarly inconsistent with Article I:1. 
The United States has exempted Argentina and Australia from the additional duties on derivative 
aluminium and steel products, and Brazil and South Korea from t he additional duties on derivative 
steel products. Furthermore, the United States has exempted Canada and Mexico from the additional 
duties on both derivative steel and aluminium products. In granting exemptions to these Members, 
the United States has conf erred an advantage on derivative steel and aluminium products originating 
 
31 See China's first written submission, paras. 151 -155. 
32 See China's second written submission, paras. 129 -134. 
33 See China's first written submission, paras. 156 -164. WT/DS544/R/Add.1  
 
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  within those Members that it has failed to accord to imports of like derivative products from all other 
Members, including China.34 
C. Article X:3(a) of the GATT 1994  
54. The United Stat es also administers the product -specific exclusion process in a manner that is 
not uniform, impartial, or reasonable as required under Article  X:3(a).35 China is not challenging the 
specific legal instruments that regulate the product exclusion process und er Article  X:3(a) of the 
GATT 1994. China is challenging the administration  of the product exclusion process.36 The terms of 
Article  X:3(a) require the USDOC to evaluate all exclusion requests "'consistently and predictably"' 
and in a "'fair, unbiased and unprejudiced manner'" that is "in accordance with reason".37 The 
differential treatment of exclusion requests where an objection is filed does not satisfy this standard.  
IV. THE SECTION 232 MEASURES ARE NOT JUSTIFIED UNDER ARTICLE  XXI(B) OF THE 
GATT 1994  
A. The Subparagraphs of Article  XXI(b) of the GATT 1994 are Not "Self -Judging"  
55. In the United States' view, Article  XXI(b) is "self -judging" in its entirety, to include the 
applicability of the three circumstances identified in subparagraphs XXI(b)(i) -(iii). The most 
fundamental problem with the U.S. interpretation of Article  XXI(b) is quite apparent: its failure to 
give meaningful effect to the subparagraphs of that provision.38 The U.S. interpretation of 
Article  XXI(b) does not make sense in the English tex t, cannot be reconciled with the equally 
authentic Spanish and French texts, is inconsistent with the principle of effective treaty 
interpretation, and is contrary to the object and purpose of the GATT 1994.39 
1. Ordinary meaning  
56. China and the United State s do not disagree that the phrase "which it considers" in the 
chapeau to Article  XXI(b) means that at least some element of Article  XXI(b) may be determined by 
the invoking Member in its discretion. The question is how far this discretion extends. There is  no 
basis for the U.S. position that this discretion extends to the subparagraphs.40 
57. If the self -judging portion of Article  XXI(b) were interpreted to encompass the subparagraphs, 
those subparagraphs would serve no effective purpose within Article  XXI(b). The interpretation and 
effect of Article  XXI(b) would be no different than if the subparagraphs did not exist at all. Such an 
interpretation would be contrary to the well -established principle that the treaty interpreter must 
"give meaning and effect to al l the terms of a treaty", and may not "adopt a reading that would 
result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility". The United 
States has no meaningful answer to this glaring flaw in its interpretation of Article  XXI(b ). Knowing 
that it has to say something about the subparagraphs and their role within Article  XXI(b), the United 
States asserts that the subparagraphs exist merely to " guide a Member's exercise of its rights under 
this provision".41 
58. China is not aware of a ny other instance in which the covered agreements have been 
interpreted to provide mere suggestions for how Members might choose to exercise a unilateral 
right. More generally, China is not aware of any authority for the proposition that such an 
interpreta tion of a treaty provision is consistent with the principle of effective  treaty interpretation. 
Nor has the United States referred to any such authority. "Guiding a Member's exercise of its rights" 
does not give meaning and effect to treaty text if it rema ins entirely within the discretion of each 
 
34 See China's second written submission, Part VI.E.  
35 See China's first written submission, Part V.C.  
36 See China's response to Panel question No. 2(d).  
37 See China's first written submission, para.  174 (citations omitted).  
38 See China's opening statement at the first meeting of the Panel, para.  20. 
39 See Ch ina's comments on the U.S. response to Panel question No. 90.  
40 See China's opening statement at the first meeting of the Panel, para.  22. 
41 See China's opening statement at the second meeting of the Panel, paras. 32 and 33, quoting United 
States' first wr itten submission, para. 3 (emphasis added).  WT/DS544/R/Add.1  
 
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  party to interpret and apply that text, i.e. if the text has no objective meaning among the parties 
that are bound by it.42 
59. The United States further asserts that the first two subparagraphs of Article  XXI(b) (the  
"relating to" subparagraphs) modify the term "interests" within the chapeau, whereas the United 
States acknowledges that the third subparagraph ("taken in time of") can only be understood to 
relate to the term "action".43 
60. By arguing that the first two sub paragraphs modify the term "interests", the United States 
seeks to place at least those two subparagraphs within the relative clause that begins "which it 
considers". The United States further contends that all of the elements of that relative clause – 
including the determination of whether the invoking Member's security interests "relate to" the 
subject matter of the first two subparagraphs – are committed to the Member's own judgment. In 
this way, the United States seeks to extend the self -judging element  of Article  XXI(b) to the subject 
matter applicability of its subparagraphs.44 
61. China does not accept the premise that anything contained within the relative clause is 
necessarily "self -judging". Among other considerations, such an interpretation would still give rise 
to a problem of effective treaty interpretation: what purpose do the subparagraphs serve if their 
applicability is committed to the invoking Member's own judgment? Thus, even if the United States 
were correct that the f irst two subparagraphs modify "interests", it would not necessarily follow that 
those two subparagraphs are "self -judging".45  
62. But even accepting that premise, the third subparagraph, at a minimum, is not a part of that 
relative clause. Rather, it forms a noun phrase with the word "action" ("any action taken in time of 
war or other emergency in international relations"). The relative clause beginning "which it 
considers" – the portion that the United States considers "self -judging" – concerns the necessity of 
that type of action for the protection of the invoking Member's essential security interests. Even 
under the U.S. interpretation, there is no basis to conclude that the "self -judging" element of 
Article  XXI(b)(iii) extends to the determination of whethe r a particular action is one of that type.46 
63. The same is true of the other two subparagraphs of Article  XXI(b), because they, too, relate 
to the term "action" and not to the term "interests". Each of the subparagraphs of Article  XXI(b) 
forms a noun phrase with the word "action" and describes a type of action for which a Member may 
seek justification under that provision. Whether the action for which justification is sought is one of 
the enumerated types is an objective matter to be determined by a panel and  does not fall within 
the portion of Article  XXI(b) that the United States considers to be "self -judging".47 
64. The U.S. interpretation of Article  XXI(b) would lead to an outcome in which the first two 
subparagraphs are "self -judging" under the U.S. "single r elative clause" theory, while the third 
subparagraph is not "self -judging" because it does not form part of that relative clause. Obviously 
this does not make sense. Just as it does not make sense that Article  XXI(b) would have been drafted 
so that the fir st two subparagraphs relate to the term "interests" while the third subparagraph relates 
to the term "action", it likewise does not make sense that Article  XXI(b) would have been drafted so 
that the subject matter applicability of the first two subparagrap hs is "self -judging" while the subject 
matter applicability of the third subparagraph is not. Yet that is the outcome to which the U.S. 
interpretation inevitably leads, no matter how hard the United States tries to avoid that result.48 
65. The United States' c onvoluted reading of the English text is also impossible to reconcile with 
the equally authentic Spanish and French texts, especially the former. This is because the Spanish 
text makes clear that each of the three subparagraphs relates to "action" ("medida s") and not to 
"interests" ("intereses"). By seeking to impugn the accuracy of the Spanish text of the GATT 1994, 
United States has effectively acknowledged that its interpretation of Article  XXI(b) cannot be 
 
42 See China's second written submission, para.  87. 
43 See China's second written submission, para.  58. 
44 See China's second written submission, para.  62. 
45 China's second written submission, para.  63. 
46 See China' s comments on the United States' response to Panel question No. 90, para.  38. 
47 See China's comments on the United States' response to Panel question No. 90, para.  39. 
48 See China's second written submission, para.  66. WT/DS544/R/Add.1  
 
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  reconciled with that authentic text.49 By contr ast, China's proposed interpretation of Article  XXI(b) 
is based on a harmonious and consistent understanding of how all three subparagraphs in the English 
text relate to the chapeau.50 
2. Context  
66. The U.S. interpretation of Article  XXI(b) is not supported by the context of that provision. The 
most immediate and relevant context for interpreting Article  XXI is Article  XX. Like Article  XXI, 
Article  XX consists of a chapeau followed by an enumeration of the specific types of measures that 
a Member ma y adopt notwithstanding other provisions of the GATT 1994. Also like Article  XXI, each 
of the enumerated items under the chapeau begins with a relational standard that is appropriate to 
the particular subject matter of that item ("necessary to", "relating to", "imposed for", "undertaken 
in pursuance of", "involving", "essential to"). It is beyond dispute that the relational standards under 
Article  XX are objective standards that a panel must interpret and apply as part of its assessment of 
the matter, whene ver the responding Member invokes one of the Article  XX exceptions in its defence 
of a non -conforming measure.  
67. By their terms, both Article  XX and Article  XXI require a two -step inquiry: (1)  whether the 
measure or action at issue falls within the scope of at least one of the enumerated types of measures 
or actions that Members may take; and (2) whether the requirements of the chapeau are satisfied. 
The Appellate Body has held in the context of Article  XX that a panel must first determine that the 
measure or  action at issue falls within the scope of one of the enumerated exceptions, and only then 
proceed to evaluate whether the requirements of the chapeau are satisfied.51  
68. The context provided by Article  XX indicates that the chapeau inquiry under Article  XXI comes 
after a panel has determined that one or more of the enumerated exceptions is applicable to the 
non-conforming action in question. Subject matter applicability is a determination for a panel to 
make in both cases, while it is only a portion of the c hapeau inquiry that is committed to the 
Member's judgment under Article  XXI.52 
69. The availability of a non -violation nullification or impairment claim for cases in which 
Article  XXI(b) is properly invoked does not support the conclusion that Article  XXI(b) i s entirely self -
judging, as the United States suggests. Nothing in the ordinary meaning of Article  XXI(b), or in the 
context provided by Article  XXIII, suggests any interpretative connection between these two 
provisions. The negotiating history to which th e United States refers suggests nothing more than an 
agreement by the Contracting Parties that even if an inconsistent measure is justified under 
Article  XXI(b), that justification would not preclude a finding of non -violation nullification or 
impairment. This conclusion has no bearing upon the proper interpretation of Article  XXI(b) to 
determine when an inconsistent measure may be justified in the first place. Most importantly, for 
present purposes, nothing in that negotiating history suggests that the sel f-judging portion of 
Article  XXI(b) was meant to encompass the applicability of the subparagraphs.53 
3. Object and purpose  
70. The conclusion that the subparagraphs of Article  XXI(b) are "self -judging" is also contrary to 
the object and purpose of the GATT 199 4. The United States has no genuine argument that its 
proposed interpretation of Article  XXI(b) is supported by a consideration of the object and purpose 
of the GATT 1994. The United States asserts that "the text of Article  XXI establishes that the 
invocat ion of this exception is self -judging by the Member taking action". On the basis of this 
assertion, the United States concludes, in essence, that it is consistent with the object and purpose 
of the GATT 1994 to interpret Article  XXI(b) in accordance with t he United States' understanding of 
what the text means. Of course, this reasoning is backwards. The consideration of object and 
purpose is part of the interpretive process of establishing what the text means in the first place, not 
 
49 See China's opening statement at th e second meeting of the Panel, para.  17; China's second written 
submission, paras. 69 -84. 
50 See China's second written submission, para.  51. 
51 See China's opening statement at the first meeting of the Panel, paras. 48 and 49; citing Appellate 
Body Report, Colombia Textiles , para.  5.67. 
52 See China's opening statement at the first meeting of the Panel, para. 50.  See also China's second 
written s ubmission, paras. 92 -94. 
53 See China's opening statement at the first meeting of the Panel, para.  78. WT/DS544/R/Add.1  
 
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  a consideration that com es after the meaning of the text has been established. The United States' 
circular approach to object and purpose would effectively deprive this element of Article  31(1) of the 
Vienna Convention of any interpretive significance.54 
71. It is evident, however, w hy the United States must take this circular approach to its 
examination of object and purpose. Properly considered as part of the interpretive process of 
determining what Article  XXI(b) means, the object and purpose of the GATT 1994 supports only one 
conclusion, namely that the subparagraphs of that provision are not "self -judging".  
72. The Appellate Body has repeatedly affirmed that "the security and predictability of 'the 
reciprocal and mutually advantageous arrangements directed to the substantial reduction  of tariffs 
and other barriers to trade' is an object and purpose of the WTO Agreement , generally, as well as 
of the GATT 1994". Nothing could be more inimical to this understanding of the object and purpose 
of the GATT 1994 than the United States' propose d interpretation of Article  XXI(b). If adopted, the 
United States' proposed interpretation of Article  XXI(b) would allow Members to justify literally any 
GATT -inconsistent measure merely by invoking this provision, without any possibility for meaningful 
review by the DSB. The "reciprocal and mutually advantageous arrangements directed to the 
substantial reduction of tariffs and other barriers to trade" embodied in the GATT 1994 would no 
longer be "secure" or "predictable" under this interpretation – precise ly the opposite.55 
73. Not only is China's interpretation the only consistent and coherent interpretation of 
Article  XXI(b) across all three authentic texts, it is also the only understanding that gives effect to 
each of the subparagraphs and that is consistent with the object and purpose of the GATT 1994. 
China's interpretation of Article  XXI(b) is fully consistent with the security and predictability of the 
rules-based multilateral trading system. By recognizing that the subparagraphs of Article  XXI(b) 
impose objectively reviewable constraints upon the circumstances in which a Member may seek to 
justify a GATT -inconsistent measure under this provision, China's interpretation safeguards the gains 
that Members have made toward the reduction in tariffs a nd other barriers to trade over successive 
rounds of negotiations and ensures the predictable implementation of the rules that Members have 
agreed. Moreover, China's approach to its consideration of object and purpose, unlike that of the 
United States, doe s not presuppose the final interpretive result. Instead, China's interpretation is 
based on the ordinary meaning of the terms used in Article  XXI(b) interpreted in their context and 
in the light of the object and purpose of the GATT 1994.56 
4. "Subsequent agreement" and "Members' views"  
74. The baselessness of the U.S. interpretation is underscored by two additional arguments. The 
first is its contention that there exists a "subsequent agreement" that Article  XXI(b) is self -judging 
in its entirety,  and the seco nd is its lengthy recitation of "Members' views" concerning the 
interpretation of Article  XXI(b).57 
75. The alleged "subsequent agreement" to which the United States refers is the decision of the 
Contracting Parties adopted in 1949 under Article  XXIII of the G ATT in the matter pertaining to 
United States Export Measures . There are two basic problems with the U.S. reliance on the decision 
of the Contracting Parties in United States Export Measures . The first is that the decision does not 
constitute  a "subsequent  agreement" within the meaning Article  31.3(a). The second reason is that 
the decision in United States Export Measures does not stand for the proposition that Article  XXI(b) 
is entirely self -judging. If anything, it stands for the opposite proposition .58 
76. The United States does not explain the interpretative significance that it believes the Panel 
should attach to the "views" previously expressed by certain Members (assuming, for the sake of 
argument, that the United States has accurately recounted those "v iews") regarding Article  XXI(b). 
Notably, the United States does not contend that the "views" previously expressed by certain 
Members constitute evidence of a "subsequent practice in the application of the treaty which 
 
54 See China's second written submission, paras. 95 -97, quoting United States' response to Panel 
question No. 55(a), para.  254. 
55 See China's second writte n submission, para. 99, quoting Appellate Body Report, EC – Computer 
Equipment , para.  82. 
56 See China's comments on the United States' response to Panel question No. 90, para. 40.  
57 See China's opening statement at the first meeting of the Panel, para.  60. 
58 See China's opening statement at the first meeting of the Panel, paras. 62 -68. WT/DS544/R/Add.1  
 
- 31 - 
 
  establishes the agreement of the part ies regarding its interpretation" within the meaning of 
Article  31.3(b) of the Vienna Convention. This is a tacit concession by the United States that no such 
"subsequent practice" exists. The Panel's consideration of this portion of the U.S. submission co uld 
end there, as the unilateral "views" of individual Members, even if accurately recounted, have no 
interpretative significance under accepted principles of treaty interpretation. In any event, China 
considers that the panel in Russia – Traffic in Transi t comprehensively reviewed the history of past 
practice under Article  XXI(b) and reached the right conclusion. At most, this history "reveals 
differences in positions and the absence of a common understanding regarding the meaning of 
Article  XXI."59 
5. Supplementary means of interpretation  
77. China welcomes the apparent agreement between China and the United States that it is not 
strictly necessary for the Panel to resort to supplementary means of interpretation under Article 32 
of the Vienna Convention. Like  the United States, China considers that the application of the general 
rule of interpretation in Article 31 of the Vienna Convention does not leave the meaning of Article 
XXI(b) of the GATT 1994 ambiguous or obscure, or lead to a result which is manifestl y absurd or 
unreasonable. Properly interpreted in accordance with Article 31, it is clear that the subparagraphs 
of Article XXI(b) are not "self -judging". The United States is simply mistaken in its contrary view.  
78. To the extent that the Panel nevertheless wishes to take supplementary means of 
interpretation into account, an examination of those means of interpretation would only serve to 
confirm that the applicability of the subparagraphs of Article XXI(b) to the measure for which 
justification is sought is  not a matter that is committed to the invoking Member's own judgment.60 
79. The negotiating history of what ultimately became Article XXI(b) of the GATT 1994 confirms 
that the drafters included the subparagraphs in that provision in order to impose objective 
constraints upon the circumstances under which a Member could invoke this provision to justify a 
GATT -inconsistent action.61 In response to the concern raised by the delegate from the Netherlands 
that Article XXI(b) would open "a very big loophole in the w hole Charter", the U.S. delegate explained 
that: 
We gave a good deal of thought  to the question of the security exception which we 
thought should be included in the Charter. We recognized that there was a great danger 
of having too wide an exception and we  could not put it into the Charter, simply by 
saying: "by any Member of measures relating to a Member's security interests" because 
that would permit anything under the sun . Therefore we thought it well to draft 
provisions which would take care of real ess ential security interests and, at the same 
time, so far as we could, to limit the exception so as to prevent the adoption of 
protection for maintaining industries under every conceivable circumstance .62 
80. The U.S. delegate continued:  
I think there must be some latitude here for security measures. It is really a question 
of a balance. We have got to have some exceptions. We cannot make it too tight, 
because we cannot prohibit measures which are needed purely for security reasons. On 
the other hand, we cannot make it so broad that, under the guise of security, countries 
will put on measures which really have a commercial purpose.  
 
59 See China's opening statement at the first meeting of the Panel, paras. 69 -71, quoting Panel Report, 
Russia – Traffic in Transit , para.  7.80. 
60 See China's second written s ubmission, paras. 105 -112. 
61 See China's opening statement at the first meeting of the Panel, paras. 35 -46. 
62 See China's second written submission, para. 107, quoting Second Session of the Preparatory 
Committee of the United Nations Conference on Trade an d Employment, Verbatim Report, Thirty -Third Meeting 
of Commission A Held on Thursday, 24 July 1947, E/PC/T/A/PV/33, pp. 20 -21 (as corrected by Second Session 
of the Preparatory Committee of the United Nations Conference on Trade and Employment, Corrigendum  to 
Verbatim Report of Thirty -Third Meeting of Commission A, E/PC/T/A/PV/33.Corr.3, pp. 20 -21) (emphasis 
added).  WT/DS544/R/Add.1  
 
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  We have given considerable thought to it and this is the best we could produce to 
preserve that proper balanc e.63 
81. The interpretation of Article XXI(b) now advocated by the United States in the context of this 
dispute would have exactly the effect that the U.S. delegate explained would not be permitted under 
the text that ultimately became Article XXI(b). By depri ving the subparagraphs of any objective 
meaning, the U.S. interpretation of Article XXI(b) "would permit anything under the sun" and allow 
Members "under the guise of security" to "put on measures which really have a commercial purpose". 
The "balance" that  the drafters believed they had struck by enumerating the specific circumstances 
in which a Member could invoke Article XXI(b) would become illusory.64 
82. The negotiating history thus confirms that the effect of the subparagraphs that is apparent 
from their ordinary meaning – to limit the circumstances in which a Member may invoke 
Article  XXI(b) – is the effect that the drafters intended. The meaningless interpretation that the 
United States now advocates – that the subparagraphs exist merely to "guide a Member's exercise" 
of its allegedly unilateral rights under Article  XXI(b) – would give rise to the very loophole that the 
drafters intended to close by including the subparagraphs.65 
83. In sum, the United States has presented no credible argument that the subparagraphs of 
Article  XXI(b) are anything other than objectively reviewable by this Panel. Two prior panel reports, 
Russia – Traffic in Transit and Saudi Arabia – Protection of IPRs , have now concluded that the 
subparagraphs of Article  XXI(b) are object ively reviewable by dispute settlement panels, and the 
United States has offered no credible basis to question the validity of those prior interpretations.  
B. The United States Has Not Demonstrated the Objective Applicability of 
Article  XXI(b)(iii) of the GATT 1994  
84. Apparently recognizing the untenable nature of its position that Article XXI(b) is entirely 
"self-judging", the United States claims that "information available in relation to its actions under 
Section 232" is "consistent with the United States c onsidering the measures at issue to be taken 'in 
time of war or other emergency in international relations'".66 In this way, the United States 
apparently seeks to rely upon Article XXI(b)(iii) without actually invoking it, and without making a 
prima facie  case of the applicability of this subparagraph.  
85. The Panel should reject the U.S. approach. The United States, as the party claiming that its 
measures are justified under Article XXI(b), has the burden of proving the applicability of this 
exception to the m easures at issue. The first element that the United States must prove, in this 
regard, is that the measures at issue are covered by at least one of the three types of actions 
enumerated in the subparagraphs of Article XXI(b). This requires the United State s to identify which 
subparagraph it considers applicable and provide evidence and legal argument sufficient to 
demonstrate that the measures at issue fall within this subparagraph. Unless and until the United 
States has demonstrated that the measures at is sue are covered by one or more of the 
subparagraphs of Article XXI(b), the meaning of the phrase "its essential security interests" in the 
chapeau to Article XXI(b), and whether the United States has identified those interests in good faith, 
simply does no t arise.  
86. The United States has made no effort to prove the applicability of any of the subparagraphs. 
Instead, it has done nothing more than leave hints and clues for the Panel to "make the case" on 
behalf of the United States. This approach is incompatibl e with the allocation of the burden of proof 
and with the role of the Panel under Article 11 of the DSU. The Panel should refuse to accept the 
United States' invitation to have the Panel make out a defence for it.67 
 
63 See China's second written submission, para. 108, Second Session of the Preparatory Committee of 
the United Nations Conference on Trade and E mployment, Verbatim Report, Thirty -Third Meeting of 
Commission A Held on Thursday, 24 July 1947, E/PC/T/A/PV/33, p. 21 (emphasis added).  
64 See China's second written submission, para. 109.  
65 See China's opening statement at the first meeting of the Panel, para. 46. 
66 See China's comments on the United States' response to Panel question No. 92, para. 42, quoting 
United States' response to Panel question No. 92, para. 42.  
67 See China's comments on the United States' response to Panel question No. 92, paras. 4 3 and 44.  WT/DS544/R/Add.1  
 
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  87. China, by contrast, has established a prima facie case  that the Section 232 measures are 
objectively characterized as safeguard measures and that these measures are therefore subject to 
the disciplines of the Agreement on Safeguards. The two propositions that the United States has 
relied upon to  contest that conclusion, i.e. notification is a prerequisite to the substantive 
applicability of Article XIX of the GATT 1994 and the Agreement on Safeguards, and the Section 232 
measures are removed from the coverage of the Agreement on Safeguards by vir tue of 
Article  11.1(c)), are false. China has also demonstrated that Article XXI(b) is not available as a 
defence to violations of the Agreement on Safeguards. For these reasons, China believes that the 
Panel should find that the Section 232 measures are s afeguard measures that are inconsistent with 
the Agreement on Safeguards, and that Article  XXI(b) of the GATT 1994 is not available as a potential 
defence to those violations. A report containing these findings would achieve a satisfactory resolution 
of this matter in accordance with the objectives of the DSU. China considers that there should be no 
occasion for the Panel to interpret and apply Article  XXI(b), other than as necessary to conclude that 
it does not apply to the Agreement on Safeguards.68 
88. In an y event, the hints and clues that the United States has left are insufficient to conclude 
that the measures at issue are covered by subparagraph (iii). To begin with, the United States relies 
upon an interpretation of the phrase "other emergency in interna tional relations" that would 
encompass any situation of "conflict" between nations of a "political or economic" nature. This 
interpretation fails to take into account the critical context provided by the full phrase " war or other 
emergency in international  relations". The panels in Russia – Traffic in Transit and Saudi Arabia – 
Protection of IPRs correctly took this context into account to conclude that "political or economic 
differences" between Members do not constitute an "other emergency in internationa l relations" 
"unless they give rise to defence and military interests, or maintenance of law and public order 
interests".69 
89. To interpret Article XXI(b)(iii) otherwise would mean that the entire subject matter of the 
covered agreements – the economic relati ons among Members – could be invoked by a Member at 
any time to justify measures that are inconsistent with those very agreements, to the extent that 
Article XXI(b) applies to the measure in question. This interpretation would open a massive loophole 
in the disciplines that the Members have negotiated and agreed. The present dispute is a case in 
point. As China and the other co -complainants have demonstrated, the rationale set forth in the 
Section 232 Reports is, fundamentally, a safeguard rationale. Articl e XIX of the GATT 1994 
specifically refers to safeguard measures as an " emergency action on imports" resulting from 
"unforeseen developments". Article XIX and the Agreement on Safeguards impose extensive 
substantive and procedural conditions on when Member s may impose these types of measures. If a 
Member could characterize the economic concerns that motivate the imposition of a safeguard 
measure as an "emergency in international relations" under Article XXI(b)(iii), it could bypass by 
means of an exception the substantive and procedural concerns that the Members have agreed for 
the imposition of a safeguard measure. In fact, that is exactly what the United States is trying to do 
in this case.70 
90. The United States effectively acknowledges that it is asking the  Panel to make the case for it 
by asking the Panel to peruse the Section  232 Reports in search of evidence that would support a 
defence under Article  XXI(b)(iii), citing the example of the panel's approach in Russia – Traffic in 
Transit.  Even assuming that  the approach of that panel was correct, what the United States overlooks 
is the fact that the "war or other emergency in international relations" at issue in Russia – Traffic in 
Transit  was one acknowledged by the international community as an actual arme d conflict. As that 
same panel observed, the further removed a particular situation is from one of armed conflict or a 
breakdown in law and public order, the greater the evidentiary burden a Member must face in 
seeking to demonstrate that the situation con stitutes an "emergency in international relations".71 
91. In the present case, the United States asserts the objective applicability of Article  XXI(b)(iii) 
to a situation that exhibits at most  a theoretical or speculative connection to an unspecified potential  
armed conflict or breakdown in law and public order, even if one were to credit in full  the rationale 
 
68 See China's opening statement at the second meeting of the Panel, paras. 4 -14. 
69 See China's comments on the United States' response to Panel question No. 92, para. 45, quoting 
Panel Report, Russia – Traffic in Transit , para. 7.75; Panel Report , Saudi Arabia – Protection of IPRs , 
para. 7.245.  
70 See China's comments on the United States' response to Panel question No. 92, para. 46.  
71 See China's comments on the United States' closing statement at the second meeting of the Panel, 
para. 48.  WT/DS544/R/Add.1  
 
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  and evidence set forth in the Section  232 Reports. This simply is not a case in which the Panel can 
take notice of the existence of an armed conflict or other emergency in international relations. On 
the contrary, what the United States contends is an "emergency in international relations" in the 
present dispute is very far "removed from armed conflict, or a situation of breakdown of law and 
public order",  to the extent that it bears any relationship to an "emergency in international relations" 
at all. The Panel should therefore hold the United States to its burden of proof in full.72 
92. The United States' closing statement represents its fullest elaboration y et of its claimed 
defence under Article  XXI(b)(iii), yet it remains inadequate to raise before the Panel, let alone prove, 
that the Section  232 measures constitute an "action … taken in time of war or other emergency in 
international relations" as this phr ase is properly interpreted. In its closing statement, the United 
States restates the rationale for the Section  232 measures as set forth in the Steel Report and cites 
a few facts referenced in that report, but does not come close to presenting a prima fac ie case of 
the objective applicability of Article  XXI(b)(iii) to the Section  232 measures. Notably, the United 
States does not refer at all in its closing statement to the rationale and evidence relating to the 
Section  232 measures on aluminium.73 
93. The defi ciencies in the Steel Report and in the United States' summary thereof are, on their 
own, sufficient to reject any possibility of the United States proving that the Section  232 measures, 
as safeguard measures, simultaneously constitute "action[s] … taken i n time of war or other 
emergency in international relations" within the meaning of Article  XXI(b)(iii).74 
 
 
 
72 See China's comments on the United States' closing statement at the second meeting of the Panel, 
para. 49, quoting Panel Report, Russia – Traffic in Transit , para. 7.135.  
73 See China's comments on the United States' closing statement at the second meeting  of the Panel, 
para. 47.  
74 See China's comments on the United States' closing statement at the second meeting of the Panel, 
paras.  65-76. WT/DS544/R/Add.1  
 
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  ANNEX  B-2 
INTEGRATED EXECUTIVE SUMMARY  OF THE ARGUMENTS OF THE UNITED STATES OF AMERICA  
1. At issue in this dispute  is the sovereign right of a state to take action to protect its essential 
security in the manner it considers necessary. WTO Members did not relinquish this inherent right 
in joining the WT O. To the contrary, this right is reflected in Article  XXI(b) of the GATT 1994, and 
WTO Members have not agreed to subject the exercise of this right to legal review.  
2. Section 232 of the Trade Expansion Act of 1962 (Section 232) allows the United States to  
adjust imports of an article based on a finding that such imports threaten to impair U.S. national 
security. On April 19 and 26, 2017, the United States initiated investigations under Section 232 into 
imports of steel and aluminum, respectively. In connec tion with these investigations, United States 
solicited written comments from interested parties and held public hearings. The United States 
summarized its findings from these investigations in written reports, and released these reports to 
the public.  On March 8, 2018, the United States acted pursuant to Section 232 and imposed tariffs 
on certain steel and aluminum imports, effective beginning on March 23, 2018. The United States 
also established a process to permit product -specific exclusions from the Sec tion 232 tariffs, based 
on, among other factors, the national security implications of those imports.  
A THE TEXT OF GATT 1994 ARTICLE XXI(B) IN ITS CONTEXT, AND IN THE LIGHT OF THE 
AGREEMENT'S OBJECT AND PURPOSE, ESTABLISHES THAT THE EXCEPTION IS SELF-JUDGING  
3. The text of GATT 1994 Article XXI(b), in its context and in the light of the agreement 's object 
and purpose, establishes that the exception is self -judging.  As this text provides "[n]othing " in the 
GATT 1994 shall be construed to prevent a WTO Member from taking "any action " which "it considers 
necessary " for the protection of its essential security interests. This text establishes that (1) 
"nothing " in the GATT 1994 prevents a Member from ta king any action needed to protect an essential 
security interest, and (2) the action necessary for the protection of its essential security interests is 
that which the Member "considers necessary " for such protection.  
4. The self -judging nature of GATT 1994 A rticle XXI(b) is demonstrated by that provision 's 
reference to actions that the Member "considers necessary " for the protection of its essential security 
interests. The ordinary meaning of "considers " is "[r]egard in a certain light or aspect; look upon as " 
or "think or take to be. " Under Article XXI(b), the relevant "light" or "aspect " in which to regard the 
action is whether that action is necessary for the protection of the acting Member 's essential security 
interests. Thus, reading the clause together, the ordinary meaning of the text indicates it is the 
Member ( "which it ") that must regard ( "consider[] ") the action as having the aspect of being 
necessary for the protection of that Member 's essential security interests.  The French and Spanish 
texts of Ar ticle XXI(b) confirm the self -judging nature of this provision. Specifically, use of the 
subjunctive in Spanish ( "estime ") and the future with an implied subjunctive mood in French 
("estimera ") support the view that the action taken reflects the beliefs of  the WTO Member, rather 
than an assertion of objective fact that could be subject to debate.  
5. The ordinary meaning of the terms in the phrase "its essential security interests, " also 
supports the self -judging nature of Article XXI. The word "interest " is defined as "[t]he relation of 
being involved or concerned as regards potential detriment or (esp.) advantage. " The term "security " 
refers to "[t]he condition of being protected from or not exposed to danger. " The definitions of 
"essential " include "[t]hat is  such in the absolute or highest sense " and "[a]ffecting the essence of 
anything; significant, important. " 
6. And it is "its" essential security interests – the Member 's in question – that the action is taken 
for the protection of. Therefore, it is the judgment of the Member that is relevant. Each WTO Member 
must determine whether certain action involves "its interests, " that is, potential detriments or 
advantages from t he perspective of that Member. Each WTO Member likewise must determine 
whether a situation implicates its "security " interests (not being exposed to danger), and whether 
the interests at stake are "essential, " that is, significant or important, in the abso lute or highest 
sense. By their very nature, these questions are political and can only be answered by the Member 
in question, based on its specific and unique circumstances, and its own perception of those WT/DS544/R/Add.1  
 
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  circumstances. No WTO Member or WTO panel can sub stitute its views for those of a Member on 
such matters.  
7. The text of subparagraphs (i) to (iii) of Article XXI(b) also supports the self -judging nature of 
this provision. The first element of this text that is notable is the lack of any conjunction to sepa rate 
the three subparagraphs. The subparagraphs a re not separated by the coordinating conjunction "or", 
to demonstrate alternatives, or the conjunction "and", to suggest cumulative situations. Accordingly, 
each subparagraph must be considered for its relat ion to the chapeau of Article XXI(b).  
Subparagraphs (i) and (ii) of Article XXI(b) both begin with the phrase "relating to " and directly 
follow the phrase "essential security interests " in the chapeau of paragraph (b). The most natural 
reading of this cons truction is that subparagraphs (i) and (ii) modify the phrase "essential security 
interests " and thus illustrate the types of "essential security interests " that Members considered 
could lead to action under Article XXI(b).  
8. Subparagraphs (i) and (ii) do no t limit a Member 's essential security interests exclusively to 
those interests. First, the chapeau of Article XXI(b) (as noted) reserves to the Member the judgment 
of what "its interests " are, including whether they are relating to one of the enumerated in terests. 
Second, subparagraph (iii) reflects no explication (and therefore cannot be understood to reflect a 
limitation) on a Member 's essential security interests. Rather, as with subparagraphs (i) and (ii), the 
essential security interests are those dete rmined by the Member taking the action.  
9. Subparagraph (iii) begins with temporal language: "taken in time of  war or other emergency 
in international relations. " The phrase "taken in time of " echoes the reference to "taking any action " 
in the chapeau of Arti cle XXI (b), and it is actions that are "taken ", not interests. Thus, the temporal 
circumstance in subparagraph (iii) modifies the word "action, " rather than the phrase "essential 
security interests. " Accordingly, Article XXI(b)(iii) reflects a Member 's right to take action it considers 
necessary for the protection of its essential security interests when  that action is taken in time of 
war or other emergency in international relations. Nor does the text of Article XXI(b)(iii) require that 
the emergency  in international relations or war directly involve the acting Member, reflecting again 
that the action taken for the protection of its essential security interests is that which the Member 
judges necessary.  
10. Subparagraphs (i) to (iii) of Article XXI(b) thu s reflect that Members wished to set out certain 
types of "essential security interests " and a temporal circumstance that Members considered could 
lead to action under Article XXI(b). A Member taking action pursuant to Article XXI(b) would consider 
its act ion to be necessary for the protection of the interests identified in subparagraphs (i) and (ii) 
or to be taken in time of war or other emergency in international relations. In this way, the 
subparagraphs guide a Member 's exercise of its rights under this provision while reserving to the 
Member the judgment whether particular action is necessary to protect its essential security 
interests.  
11. The context of Article XXI(b) also supports this understanding. First, the phrase "which it 
considers necessary " is pre sent in Article XXI(a) and XXI(b), but not in Article  XXI(c). The selective 
use of this phrase highlights that, under Article XXI(a) and XXI(b), it is the judgment of the Member 
that controls. The Panel should recognize and give meaning to such deliberate use of the phrase 
"which it considers " in Article XXI(b), and not reduce these words to inutility.  Second , the context 
provided by Article XX supports the understanding that Article  XXI(b) is self -judging. Specifically, 
Article XX sets out "general excepti ons," and a number of subparagraphs of Article XX relate to 
whether an action is "necessary " for some listed objective. For example, Article XX(a), (b), and (d), 
respectively, provide exceptions for certain measures "necessary  to protect public morals, " 
"necessary  to protect human, animal or plant life or health, " and "necessary  to secure compliance 
with laws or regulations which are not inconsistent with the provisions of this Agreement " (emphases 
added).  Unlike Article XXI(b), however, none of the Article  XX subparagraphs use the phrase "which 
it considers " to introduce the word "necessary. " Furthermore, Article XX includes a chapeau which 
subjects a measure qualifying as "necessary " to a further requirement of, essentially, non -
discrimination. Notably, su ch a qualification, which requires review of a Member 's action, is absent 
from Article XXI.  
12. Third, a number of provisions of the GATT 1994 and other WTO agreements refer to action 
that a Member "considers " appropriate or necessary, and —as in Article XXI(b) —this language signals 
that a particular judgment resides with that Member. For example, under Article  18.7 of the 
Agreement on Agriculture, "[a]ny Member " may bring to the attention of the Committee on WT/DS544/R/Add.1  
 
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  Agriculture "any measure which it considers ought to have been notified by another Member. " 
Similarly, Article III(5) of the General Agreement on Trade in Services (GATS) permits "[a]ny 
Member " to notify the Council for Trade in Services of any measure taken by another Member which 
"it considers affects " the operation of GATS. In other provisions of the GATT 1994 or other WTO 
agreements, however, certain judgments are left for determination by a panel, the Appellate Body, 
or a WTO committee. Under DSU Art. 12.9, for example, "[w]hen the panel considers " that it cannot 
issue its report within a certain period of time, the panel must provide certain information to the 
DSB. Under Article 4(1) of the Agreement on Rules of Origin, the Committee on Rules of Origin may 
request work from the Technical Committee on Rules of Origin "as it considers appropriate " for the 
furtherance of the objectives of that agreement.  
13. Fourth , by way of contrast, and further context, in at least two WTO provisions the judgment 
of a Member is expressly subject to review thro ugh dispute settlement. Specifically, DSU Article 26.1 
permits the institution of non -violation complaints, subject to special requirements, including that 
the panel or Appellate Body agree with the judgment of the complaining party. As DSU Article 26.1 
states, a non -violation complaint may be instituted, "[w]here and to the extent that such party 
considers and a panel or the Appellate Body determines " that a particular measure does not conflict 
with a WTO agreement, among other requirements. Thus, in this provision, Members explicitly 
agreed that it is not sufficient that "[a] party considers " a non -violation situation to exist, and 
accordingly, a non -violation complaint is subject to the additional check that "a panel or the Appellate 
Body determines that " a non -violation situation is present. A similar limitation —that a "party 
considers and a panel determines that "—was agreed in DSU Article 26.2 for complaints of the kind 
described in GATT 1994 Article XXIII:1(c).  
14. The context provided by DSU Articles 26.1 and 26.2 is highly instructive. No such review of a 
Member 's judgment is set out in Article XXI(b), which permits a Member to take action "which it [a 
Member] considers necessary for the protection of its essential security interests. " Accordingly, the 
context of Article XXI(b) demonstrates that Members did not agree to subject a Member 's essential 
security judgments to review by a WTO panel.  
15. The object and purpose of the GATT 1994 also establishes that Article XXI(b) is self -judging. 
The object and purpose  of the GATT 1994 is set out in the agreement 's Preamble. That Preamble 
provides, among other things, that the GATT 1994 set forth "reciprocal and mutually advantageous 
arrangements directed to the substantial reduction of tariffs and other barriers to tra de." Particularly 
with these references to arrangements that are "mutually advantageous " and tariff reductions that 
are "substantial " (rather than complete), the contracting parties (now Members) acknowledged that 
the GATT contained both obligations and ex ceptions, including the essential security exceptions at 
Article XXI. The self -judging nature of Article XXI is further established by a subsequent agreement 
between the parties regarding  the interpretation of the treaty or the application of its provision s in 
the context of the United States Export Measures dispute between the United States and 
Czechoslovakia.  
B SUPPLEMENTARY MEANS OF INTERPRETATION, INCLUDING NEGOTIATING HISTORY, 
CONFIRM THE SELF -JUDGING NATURE OF GATT 1994 ARTICLE XXI(B)  
16. While not neces sary in this dispute, supplementary means of interpretation, including 
negotiating history, confirms that GATT 1994 Article  XXI(b) is self -judging. The drafting history of 
GATT 1994 XXI(b) dates back to negotiations to establish the International Trade Org anization of 
the United Nations (ITO). In 1946, the United States proposed a draft charter for the ITO, which 
included the following two exceptions provisions:  
Article 32 (General Exceptions to Chapter IV):  
Nothing in Chapter IV of this Charter shall be c onstrued to prevent the 
adoption or enforcement by any Member of measures  
. . . .  
(e) in time of war or other emergency in international relations, relating to 
the protection of the essential security interests of a Member.  
  WT/DS544/R/Add.1  
 
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  Article 49.2 (Exceptions to Provisions Relating to Intergovernmental Commodity 
Agreements):  
None of the foregoing provisions of Chapter VI is to be interpreted as 
applying to agreements relating to fissionable materials; to the traffic in 
arms, ammunition  and implements of war and to such traffic in other goods 
and materials as is carried on for the purpose of supplying a military 
establishment; or, in time of war or other emergency in international 
relations, to the protection of the essential security in terests of a Member.  
17. The United States asserted at the time that Article 32(e) "afforded complete opportunity for 
the adoption of all measures regarded as necessary for the protection of national interests " in a time 
of war or a national emergency. As orig inally drafted, however, neither exceptions provision was 
explicitly self -judging. These provisions lacked the key phrase that appears in the current text of 
GATT 1994 Article XXI(b) regarding action by a Member that "it considers necessary for " the 
protec tion of its essential security interests. In addition, the essential security exception set out in 
Article 32 of the ITO draft charter was one of twelve exceptions, several of which later formed the 
basis for the general exceptions at GATT 1994 Article XX.   
18. In March 1947, the same exceptions text was proposed as both GATT Article XX and Article 
37 the ITO draft charter, in Chapter V, which related to "[g]eneral commercial policy. " The chapeau 
of this proposed text and a number of the subparagraphs are ident ical to what would become 
GATT  1994 Article XX. With its proviso, the chapeau contemplated panel review so that the 
exceptions would not be applied to discriminate unfairly. The subparagraphs corresponding to 
essential security were included in this propos ed text, together with other exceptions, and thus were 
subject to the proviso in the chapeau, like these other exceptions. This structure suggests that, at 
that time, not all drafters may have viewed the essential security exception in subparagraph (e) as 
self-judging.  
19. In May 1947, the United States proposed removing, inter alia , subparagraph (e) from the ITO 
draft charter exceptions provision quoted above. In the U.S. proposal, item (e) would be included in 
a new article, to be inserted at an "appropriate " place at the end of the ITO draft charter, so that 
these exceptions would apply to the whole charter. The United States also proposed that the new 
article would begin by stating "[n]othing in this Charter shall be construed to prevent the adop tion 
or enforcement by any Member of measures, " including those relating to the protection of essential 
security interests.  Thereafter, the United States proposed the addition of a new chapter, entitled 
"Miscellaneous " at the end of the ITO draft charter, and that the proposed exceptions to the charter 
as a whole be included in this new chapter. The United States also suggested additional text to this 
exceptions provision, to make the self -judging nature of these exceptions explicit. Under this U.S. 
proposa l, the draft exceptions provision stated:  
Nothing in this Charter shall be construed to require any Member to furnish any 
information the disclosure of which it considers contrary  to its essential security 
interests, or to prevent any Member from taking an y action which it may consider to be 
necessary  to such interests:  
a) Relating to fissionable materials or their source materials;  
b) Relating to the traffic in arms, ammunition and implements of war and 
to such traffic in other goods and materials as is carried on for the purpose 
of supplying a military establishment;  
c) In time of war or other emergency in international relations, relating to 
the protection of its essential security interests  . . . .  
20. The text now referenced what a Member considered to be necessary, explicitly indicating that 
this provision could be invoked based on a Member 's own judgment. Moreover, this reference was 
included only for national security issues, including actions which a Member may consider necessary 
for the protection o f its essential security interests. The drafting history thus shows that a deliberate 
textual distinction was drawn between the self -judging nature of exceptions pertaining to essential 
security and exceptions related to other interests that, unlike the se curity -based exceptions WT/DS544/R/Add.1  
 
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  referenced above, were retained as part of the "[g]eneral commercial policy " chapter of the ITO 
draft charter.  
21. Regarding the exception 's scope, at a July 1947 meeting of the ITO negotiating committee, 
the delegate from The Netherlan ds requested clarification on the meaning of a Member 's "essential 
security interests, " and suggested that this reference could represent "a very big loophole " in the 
ITO charter. The U.S. delegate responded that the exception would not "permit anything un der the 
sun," but suggested that there must be some latitude for security measures. The U.S. delegate 
further observed that in situations such as times of war, "no one would question the need of a 
Member, or the right of a Member, to take action relating t o its security interests and to determine 
for itself —which I think we cannot deny —what its security interests are. " 
22. In those discussions the Chairman made a statement "in defence of the text, " and recalled 
the context of the essential security exception as  part of the ITO charter. As the Chairman observed, 
when the ITO was in operation "the atmosphere inside the ITO will be the only efficient guarantee 
against abuses of the kind " raised by The Netherlands delegate. That is, the parties would serve to 
police  each other 's use of the essential security through a culture of self -restraint. During the same 
July 1947 meeting, the Chairman asked whether the drafters agreed that actions taken pursuant to 
the essential security exception "should not provide for any p ossibility of redress. " In response, the 
U.S. delegate observed that such actions "could not be challenged in the sense that it could not be 
claimed that the Member was violating the Charter. " The United States acknowledged, however, that 
a member affected  by such actions "would have the right to seek redress of some kind " under Article 
35(2) of the ITO charter.  
23. At that time, Article 35(2) provided for the possibility of consultations concerning the 
application of any measure, "whether or not it conflicts w ith the terms of this Charter, " which had 
"the effect of nullifying or impairing any object " of the ITO charter. If the parties were unable to 
resolve the matter, it could be referred to the ITO, which in turn could make recommendations, 
including the susp ension of obligations or concessions. In response to the explanation from the U.S. 
delegate, including the right to seek redress for non -violation under Article 35(2), the Australian 
delegate lifted a reservation on the essential security exception at this  July 1947 meeting. The 
delegate from Australia stated that, as the exception was "so wide in its coverage "—particularly the 
"which it may consider to be necessary " language —Australia 's agreement was done with the 
assurance that "a Member 's rights under Article 35(2) will not be impinged upon. " This exchange 
demonstrates that the drafters of the text that became GATT 1994 Article XXI(b) understood that 
essential security measures could not be challenged as violating obligations in the underlying 
agreement. Nevertheless, an ITO member affected by essential security measures could claim that 
its expected benefits under the charter had been nullified or impaired, as set forth at Article 35(2) 
of the ITO Charter draft current in July 1947. As applied to the WTO context, this discussion indicates 
essential security measures cannot be found by a panel to breach the GATT 1994 or other WTO 
agreements, although Members may request that a panel review whether its benefits have been 
nullified or impaired by the essential security measure and, if so, to assess the level of that 
nullification or impairment.  
24. This understanding of the relationship between essential security measures and nullification 
or impairment procedures is further confirmed by discussions of the  ITO Charter that occurred in 
early 1948. For example, after "extensive discussions, " a Working Party of representatives from 
Australia, India, Mexico, and the United States decided to retain the draft charter 's non -violation 
nullification or impairment pr ovision. The Working Party noted that the provision "would apply to the 
situation of action taken by a Member " to protect its essential security interests.  The explanation of 
the Working Party is worth reading in full:  
Such action, for example, in the int erest of national security in time of war or other 
international emergency would be entirely consistent with the Charter , but might 
nevertheless result in the nullification or impairment of benefits accruing to other 
Members. Such other Members should, und er those circumstances, have the right to 
bring the matter before the Organization, not on the ground that the measure taken 
was inconsistent with the Charter, but on the ground that the measure so taken 
effectively nullified benefits accruing to the compl aining Member.  
25. Members of a sub -committee on the ITO Charter 's dispute settlement chapter expressed 
similar views. Thereafter, the essential security exception in the ITO draft charter was revised based WT/DS544/R/Add.1  
 
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  on suggestions from the United Kingdom. The UK repres entative opined that with these revisions, 
the Charter "would neither permit, nor condemn, nor pass any judgment whatever on, unilateral 
economic sanctions. " After the UK 's revisions were accepted, a representative of India —when 
discussing nullification or  impairment claims as a remedy for essential security measures —
"expressed some doubt " about whether "the bona fides of an action allegedly coming within [the 
essential security exception] could be questioned. " In early 1948, negotiators also declined to ad opt 
a UK proposal that would have amended the essential security provision to state that nullification or 
impairment procedures were the appropriate recourse for members affected by essential security 
measures by other members. As the United States noted a t the time, such a reference to nullification 
or impairment in the essential security provision was "unnecessary " in light of the existing text.  
26. In its analysis of the negotiating history of Article XXI(b), the Russia – Traffic in Transit  panel 
referred at  length to internal documents of the U.S. delegation to the GATT negotiations. Specifically, 
in addition to considering published documents associated with the negotiating history of Article 
XXI(b), that panel considered a study that discusses internal doc uments of the U.S. delegation. In 
particular, the panel report recounts at some length this study 's discussion of an internal U.S. 
delegation meeting of July 4, 1947. The panel used these documents as negotiating history to 
confirmed the panel 's interpreta tion that it had the authority to review a Member 's invocation of its 
essential security interests . The Panel in Russia – Traffic in Transit erred in relying on such material 
because it is not "negotiating history " within the meaning of the Vienna Conventi on. It is concerning 
that the panel would commit such an elementary error in interpretive approach. Even putting aside 
this interpretative error, the panel also misunderstood and mischaracterized the U.S. discussions to 
which it referred. These internal U. S. deliberations —when considered as a whole and in context —
further confirm that Article XXI(b) is self -judging.  The self -judging nature of Article XXI(b) is also 
supported by views repeatedly expressed by GATT contracting parties (now Members) in connectio n 
with prior invocations of their essential security interests.  
C THE RUSSIA – TRAFFIC IN TRANSIT  PANEL ERRED IN DECIDING IT HAD AUTHORITY 
TO REVIEW A RESPONDING PARTY'S INVOCATION OF ARTICLE XXI.  
27. The panel in Russia – Traffic in Transit  erred when it decided that it had authority to review 
multiple aspects of a responding party 's invocation of Article XXI. That panel 's interpretation of 
Article XXI is not consistent with the customary rules of interpretation set forth in the Vienna 
Conve ntion. In addition to being inconsistent with the ordinary meaning of the terms of Article XXI, 
the panel failed to interpret that provision as a whole. In fact, the panel appears to have reached its 
conclusion regarding the reviewability of Article XXI a mere four paragraphs after beginning its 
analysis – based not on "the mere meaning of the words and the grammatical construction of the 
provision, " but on what it termed the "logical structure of the provision. " Furthermore, in its 
examination of the negot iating history of the treaty, the Russia – Traffic in Transit  panel 
misconstrued certain statements by negotiating parties and relied on materials not properly 
considered part of the negotiating history. These errors reveal the panel 's analysis as deeply f lawed 
and suggest a results -driven approach not in line with the responsibility bestowed on the panelists 
by WTO Members through the DSU.  
_______________  
 
 
 WT/DS544/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of 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 arguments 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/Add.1  
 
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  ANNEX  C-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF EGYPT  
I. Introduction  
1. Egypt focuses its views in these proceedings on certain legal issues raised in this dispute. In 
particular, the following two key issues:  
(1) Whether the measure adopted pursuant to Section 232 of the Trade Expansion Act of 
1962, (the Section 232 measure)  constitutes a safeguard measure within the meaning 
of Article XIX of the GATT 1944 and the Agreement on Safeguards; and  
(2) Whether the measure at issue violates Article II of the GATT 1994.  
II. Whether the national security measure adopted pursuant to S ection 232 of the Trade 
Expansion Act of 1962 (the Section 232 measure) constitutes a safeguard measure within 
the meaning of Article XIX of the GATT and the Agreement on Safeguards  
2. In Egypt's view, Article XIX of the GATT 1994 gives the right to adopt safeguard measures 
and requires that, first, a measure must suspend, in whole or in part, a GATT obligation or 
withdraw or modify a GATT concession; second, the suspension, withdrawal, or modification 
in question must be designed to prevent or remedy serio us injury to the Member's domestic 
industry caused or threatened by increased imports of the subject product. As stated by the 
Appellate Body in Indonesia – Iron or Steel Products , "whether a particular measure 
constitutes a safeguard measure for purposes of WTO law can be determined only on a 
case-by-case basis."1 The Appellate Body also noted that "[a]s part of its determination, a 
panel should evaluate and give due consideration to all relevant factors …" and that "no one 
such factor is, in and of itsel f, dispositive of the question of whether the measure constitutes 
a safeguard measure within the meaning of Article 1 of the Agreement on Safeguards."2 
3. Egypt recalls that, according to consistent WTO jurisprudence, "the manner in which 
municipal law characterizes a measure is not determinative for its characterization under the 
covered agreements".3 Rather, "[t]he label given to an instrument under municipal law … is 
not dispositive and cannot be the end of [the Panel's] analysis".4 
4. Accordingly, the task of the Panel is not to determine whether the measure at issue qualifies 
as a safeguard measure under US domestic law. In fact, this approach would be inconsistent 
with the Panel's jurisdiction ratione materiae  under Article 1.1 of th e DSU. The question is 
rather whether the measure qualifies as a safeguard measure within the meaning of 
Article  XIX:1(a) of the GATT 1994 and the Agreement on Safeguards.  
5. Egypt observes that a safeguard measure is one that seeks to provide, through the  violation 
of an existing GATT commitment, relief to the domestic industry as a result of an unforeseen 
increase in imports which causes (or threatens to cause) serious injury. When these 
elements are met, the provisions of Article XIX:1(a) of the GATT 199 4 and the Agreement 
on Safeguards are engaged. The characterization of the measure as a safeguard, however, 
is not to be confused with the ultimate purpose sought by a Member. For instance, a Member 
might seek to provide relief to the domestic industry thr ough a safeguard measure because, 
by doing so, it ultimately seeks to preserve or create jobs; promote food security, especially 
in highly sensitive agricultural products; or, ensure the supply of critical products in the 
domestic market or of products tha t are critical for certain key uses in the country. Thus, 
the ultimate policy goals do not affect the characterization of a measure as a safeguard when 
the objective  standards set out in Article XIX:1(a) of the GATT 1994 and the Agreement on 
 
1 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.54.  
2 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  
3 Appellate Body Report, Canada – Renewable Energy , para. 5.127.  
4 Appellate Body Report, US – Large Civil Aircraft (2nd complaint) , para. 593.  WT/DS544/R/Add.1  
 
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  Safeguards are  met. In other words, the objective conditions set out in Article XIX:1(a) of 
the GATT 1994 and the Agreement on Safeguards are key to determining whether a measure 
constitutes a safeguard; the ultimate policy goals pursued through that measure are not.  
6. Egypt thus respectfully requests the Panel to take into account these considerations when 
determining whether the Section 232 measure constitutes a safeguard measure within the 
meaning of Article XIX:1(a) of the GATT 1994 and the Agreement on Safeguards.  
III. Whether the measure at issue violates Article (II) of the GATT 1994 (Schedules of 
Concessions) because it exceeds the bound rates  
7. China  argues that the Section 232 measure exceeds the bound rates in the US Schedule of 
Concessions, thus in violatio n of Article II:1(a) and (b) of the GATT 1994.5 The United States  
does not contest that the Section 232 measure exceeds the relevant bound rat es. Rather, it 
argues that the national security exception in the GATT "left it to each [GATT party] to judge 
what actions it considered necessary for the protection of its essential security interests" and 
that "[a] panel could therefore not address the v alidity of, nor the motivation for, the 
United  States’ invocation of [the exception]".6  The United States thus invoke the so -called 
national security exception in GATT Article XXI in defense of the steel and aluminum tariffs.  
8. In Egypt's view, Article  II of the GATT 1994 (Schedules of Concessions) contains two main 
obligations with respect to tariffs; (i) WTO Members may not adopt "ordinary customs duties" 
beyond the bound rates indicated in their Schedules of Concessions (GATT Article II:1(b), 
first s entence); and (ii) WTO Members may not adopt "other duties and charges" different 
from "ordinary customs duties" (GATT Article II:1(b), second sentence).  
9. Article II:1(b), first sentence, prohibits a Member from imposing ordinary customs duties at 
a rate  that exceeds the bound rate inscribed in the US Schedule for the relevant products. 
The Appellate Body in Colombia – Textiles  has held the view that Article II:1(b) provides 
that the products described in a Member's Schedule may not, "on their importation ", be 
subject to ordinary customs duties, or other duties or charges, that exceed that Member's 
bound tariff rates.7 Similarly, the panel in Dominican Republic – Safeguards  noted that "[t]he 
expression 'ordinary customs duties' in Article II:1(b) of the G ATT 1994 refers to duties 
collected at the border which constitute 'customs duties' in the strict sense of the term 
(stricto sensu) and that this expression does not cover possible extraordinary or exceptional 
duties collected in customs."8 
10. Egypt agre es with the view that the aluminium and steel tariffs are, by design and 
architecture, "ordinary customs duties" under the first sentence of Article II:1(b). These 
tariffs have the following features:  
• The triggering event for the imposition of the tariffs is the importation into the 
United  States of steel or aluminium goods, with duty liability due to the importation in 
such increased quantities;  
• The tariffs are imposed at an ad valorem rate of 25 percent (steel) and 10 percent 
(aluminium), with t he customs value of the products serving as the tax base;  
• The tariffs are imposed as part of a single, cumulative fiscal charge together with other 
ordinary customs duties imposed by the United States on the relevant products; and  
• The tariffs are char acterized as "ordinary customs duties" in the "Harmonized Tariff 
Schedule of the United States".  
11. Accordingly, the Section 232 tariffs constitute "ordinary customs duties" pursuant to Article 
II:1(b), first sentence. These tariffs are imposed in excess of the rates set forth in the US 
 
5 China’s first written submission, para. 177(i).  
6 United States' first written submission.  
7 Appellate Body Report, Colombia – Textiles , para. 5.35.  
8 Panel Report, Dominican Republic – Safeguards , para. 7.85.  WT/DS544/R/Add.1  
 
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  Schedule and, therefore, violate Article II:1(b), first sentence, of the GATT 1994. Moreover, 
consistent with established WTO jurisprudence, a violation of Article II:1(b) entails, without 
more, a violation of Article II:1( a)9 because the tariff treatment imposed on the relevant 
aluminium and steel products is less favourable than that set forth in the US Schedule.  
12. Finally, even if the tariffs do not constitute "ordinary customs duties" under the first sentence 
of Artic le II:1(b), they constitute "other duties and charges" that are prohibited under Article 
II:1(b) (second sentence). This provision sets forth a residual category that captures any 
"other" non -ordinary customs duties imposed by reason of importation.  
13. In closing, Egypt notes that Article XXVIII of the GATT 1994 prescribes that, when Members 
wish to raise their bound rates or withdraw tariff concessions, they must negotiate and reach 
agreements with other Members with whom they had initially negotiated and  enter into 
consultations with major supplying countries that have a substantial interest in any change 
in the bound rate. Therefore, Members must go through the procedures laid out in 
Article  XXVIII GATT 1944 and obtain approval for an increase in their b ound rates before 
they are able to raise their tariffs to levels in excess of the current bound rate. Raising tariffs 
beyond the bound rate without resorting to these procedures constitutes a violation of 
Article  II of the GATT 1994.  
14. Accordingly, the US Section 232 measure imposes a tariff higher than that prescribed in the 
US Schedule of concessions, and is thus inconsistent with Articles II:1(a) and (b) of the 
GATT 1994.  
 
 
9 See, for instance, Appellate Body Report, Argentina – Textiles and Apparel , para. 47.  WT/DS544/R/Add.1  
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
1. INTRODUCTION  
1. In this dispute, the complainants have argued that the steel and aluminium measures are 
safeguards, inconsistent with the Agreement on Safeguards; that they are also inconsistent 
with the GATT 1994; and that they are not justified by Article XXI of the GATT 1994, even 
if the US chose to make out an Article XXI defence, and even if that provision applied.  
2. In response, the US has said one thing only: Article XXI is "self -judging". In other words, as 
soon as the US "invokes" any part of Article XXI or Article XXI a s a whole, the Panel is 
allowed to do no more than record that the "invocation" took place.   
3. That assertion is baseless as a matter of law. It is also unacceptable from a systemic point 
of view. It cannot be that Members are able to escape their WTO ob ligations through mere 
unilateral "invocations". Going down that road would undermine everything that the dispute 
settlement system has achieved and reduce WTO law to inutility.  
4. It is important to note the following: the US has not taken issue with a s ingle fact or piece 
of evidence put forward by the complainants. It has not even tried to rebut the claim that 
the steel and aluminium measures are safeguards; any of the claims under the Agreement 
on Safeguards or the GATT 1994. Strikingly, for all its re liance on Article XXI, the US has 
not even raised an Article XXI defence. It has not said which "action" supposedly falls within 
Article XXI(b), whether or why it "considers it necessary", what it is "for", which "security 
interest" is at issue, whether an d why it is "essential" , which of the three subparagraphs (if 
any) is at issue or why.  
5. For these reasons and others, the EU considers that it should not be difficult for the Panel 
to find that the measures at issue are WTO -inconsistent.  
2. THE MEASURE S AT ISSUE FALL WITHIN THE SCOPE OF THE AGREEMENT ON SAFEGUARDS , AND ARE 
INCONSISTENT WITH CERTAIN PROVISIONS OF THAT AGREEMENT  
2.1. WHETHER THE AGREEMENT ON SAFEGUARDS APPLIES TO A MEASURE IS AN OBJECTIVE QUESTION TO 
BE DECIDED BY THE PANEL 
6. The EU recalls that, according to settled case -law, and as recently confirmed by the Appellate 
Body in the specific context of the Agreement on Safeguards, whether or not a measure is 
subject to the disciplines of the Agreement on Safeguards is an objective quest ion. Contrary 
to what the US asserts in the Additional Duties cases, it is not a question to be decided 
unilaterally by the Member imposing the safeguard measure.  
7. A reason why the characterisation of a measure as a safeguard must be an objective 
questio n is that Article XIX and the rules of the Agreement on Safeguards include important 
and fundamental rights of other WTO Members, notably the right to suspend equivalent 
GATT obligations. It cannot be that a WTO Member can deprive other WTO Members of thes e 
rights simply by choosing not to notify its measure as a safeguard measure or by not 
"invoking" Article XIX.  The fulfilment of the requirements in Article XIX:2 of the GATT 1994 
and Article 12 of the Agreement on Safeguards is a question of consistency,  not of the 
applicability of the Agreement on Safeguards.  
8. In making that objective assessment of whether a measure is a safeguard, the Panel must 
engage in a case -specific assessment, having regard to all of the relevant facts. In this 
respect, and agai n contrary to what the US asserts in the Additional Duties case, the 
domestic procedures pursuant to which a measure has been adopted are not determinative, 
and neither are the WTO procedures that have been followed, or not followed, by the 
adopting Member . WT/DS544/R/Add.1  
 
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  9. Indeed, the Appellate Body has previously held that the characterisation of a measure under 
a Member's municipal law is not dispositive of the question of whether or not that measure 
is governed by the provisions of a particular agreement.  
10. What ar e, then, the true "constituent features" of a safeguard?  
11. In the context of Article 1 of the Agreement on Safeguards, in order to be a safeguard 
measure, a measure must have two constituent features. First, it must suspend, in whole 
or in part, a GATT o bligation or withdraw or modify a GATT concession. Second, the 
suspension, withdrawal, or modification in question must be designed to prevent or remedy 
serious injury to the Member's domestic industry caused or threatened by increased imports 
of the relev ant products. The constituent features of a safeguard measure are distinct from 
and not to be conflated with the conditions that must be met in order for the right to adopt, 
apply and maintain a safeguard measure to be exercised.  
12. If the measures have "a specific objective" of preventing or remedying serious injury to the 
Member's domestic industry, they are subject to the disciplines of the Agreement on 
Safeguards.  
13. In conducting its assessment, the Panel must have regard to the measure "as a whole ". The 
US measures, with respect to steel and aluminium products, should be seen as the tariff and 
non-tariff treatment provided for, without qualification (that is, with respect to all WTO 
Members, as a whole).  
2.2. THE AGREEMENT ON SAFEGUARDS APPLIES TO THE MEASURES AT ISSUE  
14. The only reasonable outcome of an objective assessment is to conclude that the US 
measures are safeguards.  
15. The facts speak for themselves: even on their face, the central objective, and at the very 
least "a specific objectiv e" of the measures is protecting domestic steel and aluminium 
industry writ large from competition with imports, regardless of any alleged national security 
implications.  
16. Applying the legal standard formulated by the Appellate Body, it is first of all  clear that the 
US measures suspend at least one GATT obligation, in whole or in part, or withdraw or 
modify at least one GATT concession.  
17. Indeed, prior to the Section 232 measures the US customs duties on the steel and aluminium 
products at issue were  bound, as well as applied at the level of 0%. However, the US 
measures provide for a customs duty rate of 25% ad valorem  for the relevant steel products 
and 10% ad valorem  for the relevant aluminium products.  
18. Thus, the US measures suspend at least on e GATT obligation or withdraw or modify at least 
one GATT concession, per tariff line in question, in a manner that is inconsistent with Article 
II:1(b) of the GATT 1994.  
19. According to the Presidential Proclamations, the US measures are designed to pre vent or 
remedy a decline in the respective domestic industries caused by imports, and to provide a 
"relief" to those industries from competition with imports.  
20. Indeed, the Steel Report, the Aluminium Report and the Proclamations point to several 
elemen ts relevant to an injury analysis. The steel and aluminium import adjustments 
explicitly purport to assess a number of injury factors that are typically associated with a 
serious injury finding under Article 4.2(a) of the Agreement on Safeguards (the rate and 
amount of the increase in imports, the share of the domestic market taken by increased 
imports (import penetration), changes in the level of domestic sales, production and 
productivity, capacity utilization, profits and losses, and employment).  
21. Thus, consistent with the legal standard identified by the Appellate Body in Indonesia – Iron 
or Steel Products , the US measures have a specific objective of preventing or remedying 
serious injury to the US domestic steel and aluminium industries caused or th reatened by 
increased imports of the relevant products.  
22. An analysis of the "design, structure, and expected operation" of the steel and aluminium 
measures supports the conclusion that they are safeguard measures. The measures are 
designed , and expected  to operate , such as to achieve a certain domestic capacity utilisation WT/DS544/R/Add.1  
 
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  for all domestic producers of steel and aluminium, whether their products are linked to 
security needs or not. The structure  of the measures also shows that their overwhelming 
concern is simply whether imports harm or threaten to harm "US producers writ large", with 
regard essentially to their "industrial and commercial sales". Any discussion of defence -
related needs is brief, marginal, and would actually argue against the imposition of  the 
measures.  
23. Furthermore, there are several characteristics of the US measures that confirm that they 
are safeguards measures. While these aspects provide further support for the conclusion 
that the US measures are safeguards, it is not legally neces sary to go beyond the two 
required "constituent features".  
2.3. THE MEASURES AT ISSUE ARE INCONSISTENT WITH SEVERAL PROVISIONS OF THE AGREEMENT ON 
SAFEGUARDS  
24. The EU agrees that the steel and aluminium measures at issue are inconsistent with several 
provisions of the Agreement on Safeguards. In particular:  
• Article 2.1 (notably, because the US acted inconsistently with the provisions of Articles 
4.1 and 4.2);  
• Article 2.2 (because the US did not apply the safeguard measures to the products at 
issue irrespective of their source);  
• Articles 4.1 and 4.2 (because the USDOC failed to properly demonstrate (i) an increase 
in imports of the steel and aluminium products at issue, (ii) the existence of serious 
injury (or threat thereof) to the US domest ic steel and aluminium industries and (iii) a 
causal link between increased imports and serious injury (or threat thereof) with 
respect to the steel and the aluminium industries);  
• Article 5.1 (because the US has failed to apply its safeguard measures on ly to the 
extent necessary to prevent or remedy serious injury and to facilitate adjustment);  
• Article 7.1 (because the safeguard measures make no provision for their application 
only for such period of time as may be necessary to prevent or remedy serio us injury 
and to facilitate adjustment, and without limitation to four years or any other period 
of time);  
• Article 7.4 (because the safeguard measures fail to make provision for the progressive 
liberalisation at regular intervals during the period of th eir application, the expected 
duration of which is over one year);  
• Article 11.1(a) (because the safeguard measures do not conform with the provisions 
of Article XIX of the GATT 1994 applied in accordance with the Agreement on 
Safeguards);  
• Article 12. 1 (because the US failed to make the notifications listed in Article 12.1 of 
the Agreement on Safeguards);  
• Article 12.2 (because the US failed to provide the Committee on Safeguards with all 
pertinent information);  
• Article 12.3 (because the US failed  to provide adequate opportunity for prior 
consultations with Members having a substantial interest as exporters of the product 
concerned when proposing to apply or extend the safeguard measures).  
2.4. ARTICLE XXI IS NOT A DEFENCE FOR CLAIMS UNDER THE AGREEMENT ON SAFEGUARDS  
25. When another covered agreement specifically cross -references Article XXI of GATT 1994 and 
incorporates these security exceptions by reference, then the Article XXI exceptions will also 
apply to that other agreement. The Agreement o n Safeguards does not contain a similar 
provision, which would lead to the incorporation by reference of the security exceptions of 
the GATT 1994. Thus, the GATT 1994 security exceptions are not available to justify 
breaches of the Agreement on Safeguards.  
26. To confirm such a conclusion it is useful to follow a standard "analytical approach" developed 
by the Appellate Body, which entails an agreement -by-agreement analysis that starts with 
the text of the covered agreement in question, while keeping in min d that the lack of an WT/DS544/R/Add.1  
 
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  express textual reference to a particular enumerated provision is not dispositive in and of 
itself. Cases such as China – Publications , China - Raw Materials , China - Rare Earths  and 
Thailand — Cigarettes (Philippines)  provide useful g uidance in this respect.  
27. It is up to the US whether or not it wishes to invoke Article XXI of the GATT 1994 at all and, 
should it wish to do so, to develop arguments taking into account the guidance provided by 
the Appellate Body in previous cases.  
28. Indeed, the burden under Article XXI lies on the party raising the defence, which would in 
this case be the US. The same is true of the burden of showing why Article XXI applies in 
the context of the Agreement on Safeguards. The general point that there are textual links 
between the two agreements does nothing to specifically  establish that Article XXI is 
available as a defence for inconsistencies with the Agreement on Safeguards.  
3. THE MEASURES AT ISSUE ARE INCONSISTENT WITH CERTAIN PROVISIONS OF THE GATT 1994  
29. The EU also agrees that the steel and aluminium measures at issue are inconsistent with 
several provisions of the GATT 1994.  
30. First, they are inconsistent with Articles II:1(b) and II:1(a), because they impose duties in 
excess of bound rates . The bound duties provided in the US' Schedule for the steel and 
aluminium products at issue are 0%, while the duties imposed through the Presidential 
Proclamations are 25% ad valorem for steel products and 10% ad valorem for aluminium 
products.  
31. Secon d, the import adjustments at issue are inconsistent with Article I:1 of the GATT 1994. 
The imposition of additional customs duties of 25% on steel products and 10% on aluminium 
products creates more favourable competitive opportunities on the US market for  like 
products of certain origins, namely for products from countries that were exempted from 
the additional duties on steel and aluminium and have chosen instead a quota regime 
(exemptions have been agreed with Argentina, Australia, Brazil, and Korea).  
32. Third, the administration of the product exclusions and the country exemptions by the US 
was not uniform, impartial or reasonable. Thus, it can be established that the US acted 
inconsistently with Article X:3(a) of the GATT 1994).  
4. ARTICLE XXI  IS NOT "SELF-JUDGING "  
33. The US' view that that Article XXI is "self -judging" has been convincingly rejected by the 
Panel Report in Russia — Traffic in Transit . It is wrong in light of the text, context, object 
and purpose, and indeed useful effect of the GATT 1994. It is not supported by any of the 
materials referred to in Articles 31 and 32 of the VCLT, including supplementary means of 
interpretation.  
34. In addition, while certain GATT Contracting Parties have expressed the view that Article 
XXI(b) is "self -judging", several others have repeatedly expressed diametrically opposed 
positions. Thus, the enquiry into the GATT 1947 palaeontology does not support the  US 
position.  
35. The EU recalls, first, that Article XXI of the GATT 1994 is an affirmative defence. But it does 
not provide for an exception to the rules on jurisdiction laid down in the DSU or to the special 
rules on consultations and dispute settlement  contained in Articles XXII and XXIII of GATT 
1994. The DSU creates compulsory jurisdiction, and it contains no security exception.  
36. Second , interpreting Article XXI as a "non -justiciable" provision in this dispute would be 
inconsistent with the terms o f reference of the Panel, which follow Article 7.1 of the DSU. 
It would also be inconsistent with Article 7.2 of the DSU, which specifies that "[p]anels 
shall address the relevant provisions in any covered agreement or agreements cited by the 
parties to th e dispute".  
37. Thus, the present disputes differs from the case under the GATT 1947 opposing the US and 
Nicaragua, where the terms of reference explicitly precluded that panel from examining or 
judging the validity or motivation for the invocation of Arti cle XXI(b) by the US.  
38. Third,  interpreting Article XXI as a "non -justiciable" provision would make it impossible for 
the Panel to "make an objective assessment of the matter before it", as required by WT/DS544/R/Add.1  
 
- 49 - 
 
  Article  11 of the DSU, as the "matter" before the Pa nel must also include any defence under 
Article XXI raised by the US.  
39. Fourth, interpreting Article XXI as a "non -justiciable" provision would undermine one of the 
fundamental objectives of the DSU, as expressed in Article 3.2 of the DSU: security and 
predictability.  
40. Fifth, Article 23 of the DSU prohibits Members from making a determination to the effect 
that a violation has occurred, except through recourse to dispute settlement in accordance 
with the DSU. If Article XXI was "non -justiciable", a WTO  Member, rather than the WTO 
adjudicating bodies, would be deciding unilaterally the outcome of a dispute.  
41. Finally, by way of illustration, the EU would like to point out that there are fundamental 
differences in the way that security exceptions are dr afted in the GATT, on the one hand, 
and in other international agreements, on the other hand. For instance, an express text that 
comes very close to the idea of "non -justiciability" can be found in the KORUS FTA. There is 
no such text agreed by the WTO Mem bership in any of the covered agreements.  
42. Thus, the invocation of Article XXI by a defending party does not have the effect of excluding 
the jurisdiction of a panel.  
43. The EU fails to understand  how Article XXI(a) can exempt the US from meeting its b urden 
of proof under Article XXI(b). Like Article XXI(b), Article XXI(a) is also a justiciable provision. 
Any discretion accorded under it is not unlimited.  
44. The EU acknowledges that information relating to essential security interests is of a highly 
sensitive  nature, but the respondent is expected at a minimum to explain in sufficient detail 
why such information cannot  be shared with the Panel. There is nothing that would prevent 
a panel, if necessary, from adopting appropriate procedures to deal with sensitive 
information in cases involving the invocation of Article XXI. At any rate, even if the US was 
justified in not providing certain information pursuant to Article XXI(a), that would not 
discharge the US from its burden of proof in relation to Artic le XXI(b).  
45. Regarding  the interpretation of Article XXI, in the EU's view, the phrase "which it considers" 
refers only to the necessity test and not to any other provisions. Furthermore, t he 
subparagraphs to Article XXI(b) are exhaustive of the types of  circumstances covered by 
the provision, and cannot be considered cumulative in nature. A ll those distinct 
circumstances are objective, and susceptible to a panel's assessment. Moreover, the terms 
"other emergency in international relations"  do not extend to an "emergency" in commercial 
or trade relations . 
46. Concerning the negotiating history raised by the US, even under the Havana Charter, the 
correct position would have been that the predecessor to Article XXI is "justiciable", and not 
self-judging. Eve n under the Havana Charter, all issues arising out of the Charter were 
intended to be subject to the dispute settlement procedures provided therein, whether 
involving the ITO itself (Articles 93 -95 of the Havana Charter), or the ICJ (Article 96 of the 
Havana Charter). The evolution towards the WTO covered agreements, and notably the 
provisions of the DSU, further confirms that position.  
47. Furthermore, the 1949 GATT Council decision cited by the US cannot be considered as a 
subsequent agreement on the int erpretation even of the GATT 1947, or in any way binding 
to all the contracting parties to the GATT 1947. Still less could it be considered as binding 
under the GATT 1994. In any event, it also supports the complainants' position rather than 
that of the US . 
5. CONCLUSIONS  
48. What the US is advocating is, in fact, the end of a rules —based multilateral trading system. 
While the EU acknowledges the margin of discretion that WTO Members enjoy under the 
security exceptions, that discretion is not unfettered, bu t subject to certain objective 
elements, which can and should be subject to review by a panel  
49. The EU hopes that its contribution in the present case will be helpful to the Panel in 
objectively assessing the matter before it and in developing the respec tive legal 
interpretations of the relevant provisions of the Agreement on Safeguards and of the 
GATT  1994.  WT/DS544/R/Add.1  
 
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  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF HONG KONG, CHINA  
I. INTRODUCTION  
1. In DS544, DS547, DS548, DS552, DS554, DS556, and DS564 ("the parallel disputes"), the 
complainants challenge the consistency of the measures imposed by the United States ("U.S.") on 
steel and aluminium products.  Specifically, the complainants have challenged the U.S. measures 
under several of the core provisions of the GATT  1994, including Articles II:1 and I:1.  The 
United  States has sought to defend its measures pursuant to Article  XXI(b) of the GATT 1994.  
2. Hong Kong, China ("HKC") has participated in the parallel disputes because of its systemic 
interest in the c orrect interpretation and application of the provisions of the WTO -covered 
agreements at issue in these disputes and its substantial interest in the outcome of the parallel 
disputes.1 
3. For the reasons set out in Hong Kong, China's written submission, or al statement, and 
responses to questions from the Panel to the third parties, Hong Kong, China respectfully submits 
that in its view, the complaints have established a prima facie case that the U.S.  measures are 
inconsistent with the relevant provisions of  the Agreement on Safeguards and the GATT 1994.  
Hong Kong, China further respectfully submits that the United  States has failed to demonstrate that 
the U.S.  measures are justified under Article  XXI(b) of the GATT 1994.   
4. Throughout these proceedings, Hon g Kong, China has focused on the correct legal 
interpretation of Article  XXI(b) of the GATT 1994 in light of the critical systemic implications of the 
U.S. proposed interpretation of this provision as entirely self -judging.  
II. THE COMPLAINANTS ' CLAIMS UND ER THE AGREEMENT ON SAFEGUARDS AND THE GATT  1994  
5. As detailed in Hong Kong, China's written submission, Hong Kong, China considers that the 
complainants have each demonstrated that when evaluated objectively and in a manner consistent 
with the Appellate Body's statements in Indonesia – Iron or Steel Products , the U.S.  measures are 
safeguard measures because (1) the measures suspend at least one GATT obligation, in whole or in 
part, or withdraw or modify a GATT concession, and (2) it is evident on the face  of the measures 
and in their design, structure, and operation that the specific objective of such measures is to prevent 
or remedy serious injury to the U.S. steel and aluminium industries.2 In Hong Kong, China's view, 
each of the complainants has also d emonstrated that the U.S. measures are inconsistent with 
numerous provisions of the Agreement on Safeguards.3 
III. THE APPLICABILITY OF ARTICLE  XXI  OF THE GATT  1994  TO THE AGREEMENT ON SAFEGUARDS  
6. In its answers to questions from the Panel to the third parties, Hong Kong, China explained 
its view that Article  XXI of the GATT 1994 is inapplicable to the Agreement on Safeguards.4 Hong 
Kong, China considers the lack of an explicit reference to Article  XXI or any other GATT exception in 
the Agreement on Saf eguards, in particular, to be critical evidence that Article  XXI is not available 
to justify violations of the Agreement on Safeguards.  In Hong Kong, China's view, the general 
references in the Agreement on Safeguards to the GATT 1994 do not provide a suff icient legal basis 
to apply Article  XXI to the Agreement on Safeguards.  The Agreement on Safeguards strikes a 
balance between preserving the right of Members to take emergency action on imports and 
disciplining the use of safeguard measures.  Consequently, allowing recourse to Article  XXI of the 
GATT 1994 is both legally unjustifiable and potentially disruptive of this inherent balance.  
 
1 See Hong Kong, China's third -party submission, para. 1; third -party statement, paras. 2 and 3.  
2 See Hong Kong, China's third -party submission, paras. 5 -8. 
3 See Hong Kong, China's third -party submission, para. 9. 
4 See Hong Kong, China's response to Panel questions Nos. 38(a), 38(c), 38(d), and 39. See also 
Hong Kong, China's third -party statement, paras. 10 -12. WT/DS544/R/Add.1  
 
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  IV. ARTICLE  XXI(B)  OF THE GATT  1994  
7. The United States has invoked Article  XXI(b) of the GATT 1994 in respect of all of t he 
complainants' claims.  Therefore, for the reasons detailed in Hong Kong, China's answers to questions 
from the Panel to the third parties, the Panel has jurisdiction to examine and interpret Article  XXI(b).5 
In particular, pursuant to Articles 7.2 and 11 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes ("DSU"), the Panel is required to address Article  XXI(b) and 
conduct an objective assessment of whether Article  XXI(b) applies to the U.S. measures.  
8. Furthermore, s ince Article  XXI(b) is an affirmative defence, the Panel should first evaluate 
whether each complainant has established a prima facie case that the U.S.  measures violate certain 
provisions of the Agreement on Safeguards and the GATT 1994 and whether the Un ited States has 
rebutted those claims, before turning to the interpretation and application of Article  XXI(b) of the 
GATT 1994.6 
9. In regard to the correct legal interpretation of Article  XXI(b), it is Hong Kong, China's view 
that when analysed in accord ance with Article  3.2 of the DSU and the general customary rules of 
interpretation codified in Article  31 of the Vienna Convention on the Law of Treaties ("Vienna 
Convention"), it is clear that this provision preserves the right of Members to take actions necessary 
for the protection of their essential security interests, but it is not entirely self -judging.7  
10. Pursuant to Article  31 of the Vienna Convention, the terms of Article  XXI(b) must be 
interpreted in good faith, in accordance with their ordinar y meaning in their context, and in the light 
of the object and purpose of the GATT 1994.  The language "which it considers" makes clear that 
Article  XXI(b) contemplates a certain level of unilateral determination by the invoking Member.  The 
placement of the  language of "which it considers" in the chapeau indicates that it is up to the invoking 
Member to determine, in good faith, whether a measure is necessary  for the protection of its 
essential security interests.8  
11 Pursuant to the principle of effective  treaty interpretation, a treaty interpreter may not "'adopt 
a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or 
inutility'".9 A proper interpretation of Article  XXI(b) must therefore give meaning to all of the 
enumerated subparagraphs.  If the language "which it considers" is interpreted to qualify the 
subparagraphs, the subparagraphs would be rendered inutile.  In order to give meaning to all parts 
of Article  XXI(b), the enumerated subparagraphs must be inter preted as subject to objective review 
by a WTO panel.  Correctly interpreted, Article  XXI(b) is therefore not entirely self -judging.  This 
conclusion is supported by the fact that the chapeau does not include any terms to suggest that the 
enumerated subparag raphs do not exhaustively list the types of actions covered by Article  XXI(b), 
such as "including" or " inter alia ".10 
12. This conclusion is further supported by the context provided by Article  XX of the GATT 1994, 
which requires a "two -tiered" analysis, the first tier of which consists of objectively determining 
whether the measure at issue falls within the scope of one or more of the enumerated 
subparagraphs.11 
 
5 See Hong Kong, China's answers to Panel questions Nos. 8 -11. See also Hong Kong, China's 
third-party submission, para. 56.  
6 See Hong Kong, China's answer to Panel question No. 15; third -party submission, para. 4.  
7 See Hong Kong, China's third -party submission, paras. 20 -32; third -party statement, paras. 13 -21. 
8 See Hong Kong, China's third -party submission, para. 23. See also Hong Kong, China's response to 
Panel questions Nos. 13 and 14.  
9 See Hong Kong, China's third -party submission, para. 25, quoting Appellate Body Report, Japan – 
Alcoholic Beverages II , p. 12, quoting Appellate Body Report, US – Gasoline , p. 23; third -party statement, 
para. 19.  
10 See Hong Kong, China's third -party submission, para. 26; third -party statement, para. 18.  
11 See Hong Kong, China's third -party submission, paras. 27 -29, quoting Appellate Body Report, US – 
Shrimp , paras. 118 and 119, quoting Appellate Body Report, US – Gasoline , p. 22 (explaining that the analysis 
under Article  XX is " two-tiered : first, provisional  justification by reason of characterization of the measure 
[under one of the subparagraphs] … ; second,  further appraisal of the same measure under the introductory 
clauses of Article  XX (emphasis added)" and explaining that this analysis reflects "the fundamental structure 
and logic of Article  XX.").  WT/DS544/R/Add.1  
 
- 52 - 
 
  13. The terms of Article  XXI(b) must also be interpreted in light of their object and purpose , which 
as Hong Kong, China has explained, requires "avoid[ing] interpretations that would enable Members 
to 'circumvent' or 'evade' their obligations," including those under Article  XIX of the GATT 1994.12 
In this regard, Hong Kong, China has highlighted  the statement by the panel in Russia – Traffic in 
Transit that a "general object and purpose of the WTO Agreement, as well as of the GATT 1994, is 
to promote the security and predictability of the reciprocal and mutually advantageous arrangements 
and the substantial reduction of tariffs and other barriers to trade", and therefore "[i]t would be 
entirely contrary to the security and predictability of the multilateral trading system … to interpret 
Article  XXI as an outright potestative condition, subjecting the existence of a Member's GATT and 
WTO obligations to a mere expression of the unilateral will of that Member."13 Hong Kong, China 
concurs with the panel's statement.  
14. In support of its interpretation of Article  XXI(b) as entirely self -judging, the U nited States has 
advanced certain arguments relating to the United States v. Czechoslovakia  dispute and the views 
previously expressed by WTO Members on Article  XXI. Hong Kong, China respectfully submits that 
the United States has failed to demonstrate tha t the Panel should take into account these arguments 
as a matter of law, nor has the United States demonstrated that these arguments factually support 
the U.S.  proposed interpretation of Article  XXI(b).14 
15. Finally, throughout these proceedings, Hong Kong, China has expressed strong disagreement 
with the U.S. view that the negotiating history detailed in the U.S. first written submission confirms 
that Article  XXI(b) is self -judging.15 Hong Kong, China has carefully examined the recor ds of the 
discussions surrounding the evolution of the language "which it considers" and disagrees that they 
confirm that the drafters intended for this language to qualify the adjectival clauses that ultimately 
became the subparagraphs of Article  XXI(b).  As Hong Kong, China has highlighted in its submissions 
to the Panel, in contrast to the interpretation proposed by the United States in the present parallel 
disputes, in these early discussions the United States itself did not consider Article  XXI(b) to be  
entirely self -judging or that Members' rights of redress in respect of the exception would be limited.16  
V. CONCLUSION  
16. The text of Article  XXI(b) of the GATT 1994, interpreted in its context and in light of the object 
and purpose of that agreement, establishes that for a measure to be justified under that provision, 
the action taken must objectively fall within the scope of Article  XXI(b).  As the party invoking 
Article  XXI(b), the United States bears the burden of demonstrating that its measures fall  within the 
scope of that provision.17 Additionally, consistent with the general international law principle of pacta 
sunt servanda  underlying all of the WTO -covered agreements,  the Member invoking Article  XXI(b) 
must do so in good faith.  For the reasons explained in Hong Kong, China's submissions in the parallel 
disputes, Hong Kong, China respectfully submits that in its view, the complainants have met their 
burden of proof and established a prima facie  case that the U.S. measures violate the relevant 
provisions of the GATT 1994 and the Agreement on Safeguards. Given that the proposed 
interpretation by the United States of Article  XXI(b) is flawed and the United States has failed to 
meet its burden of proof under Article  XXI(b),18 Hong Kong, China also re spectfully submits that the 
Panel should find that the U.S.  measures are not justified under that provision.  
 
12 See Hong Kong, China's third -party submission, para. 30 , quoting Panel Report, Thailand – Cigarettes 
(Philippines)  (Article  21.5 – Philippines) , para. 7.642.  
13 See Hong Kong, China's third -party submission, para. 31, quoting Panel Report, Russia – Traffic in 
Transit , para. 7.79 (internal citations omitted).  
14 See Hong Kong, China's third -party submission, paras. 33 -36; 45 -51, 54.  
15 See Hong Kong, China's third -party submission, paras. 42 -44; third -party statement, paras. 22 -24. 
16 See Hong Kong, China's third -party submission, paras. 42 -44; third -party state ment, paras. 22 -24. 
17 See Hong Kong, China's third -party submission, para. 57, citing Appellate Body Report, US – Wool 
Shirts and Blouses , p. 16 (noting that the burden of establishing an affirmative defense "should rest on the 
party asserting it.").  
18 See Hong Kong, China's response to Panel questions Nos. 16 -19, 21, 25, and 26.  WT/DS544/R/Add.1  
 
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  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF INDIA  
I. Introduction  
1. India notes that the United States does not contest any of the evidence presented and claims 
raised, by the complainants in any of the 6 disputes in which India is a third party. In other words, 
there is no longer any dispute that the measures at issue vio late multiple provisions of GATT 1994 
and Agreement on Safeguards.  
2. The entirety of United States First Written Submissions is devoted to Article XXI(b) of 
GATT  1994. Essentially, the United States argues that mere invocation of Article XXI(b) shields the 
measures at issue from scrutiny by the Panel. India disagrees for the reasons outlined below. India 
also notes that the United States also fails to offer any explanation as to how Article XXI could be a 
defence against claims raised under Artic le XIX of GATT 1994 and Agreement on Safeguards (which 
are themselves an exception to the obligations contained in Articles I, II, X and XI of GATT 1994). 
Finally, the United States offers a generic defence under Article XXI without specifying the precise 
sub-clause it invokes and without presenting any facts to support the invocation of Article XXI. India 
submits that the burden of proof is on the United States1 to establish that Article XXI applies in the 
facts and circumstances of the present dispute si nce Article XXI(b) of the GATT 1994 is an affirmative 
defence, just like Article XX.  
II. Justiciability of Article XXI(b) of the GATT 1994  
3. The United States argues that Article XXI(b) is "self -judging" and this "has been the 
consistently expressed view of the United States for more than 70 years".2 Nothing could be farther 
from the truth3. Such assertion contradicts the comments made by the representatives of the United 
States when Article XXI (and its predecessor) were being drafted4.  
4. India consi ders that the terms "justiciable/non -justiciable" can neither be found in the DSU 
nor in any other WTO covered agreements. These terms have not been addressed in past disputes 
except in Russia – Traffic in Transit  in which the United States, intervened as a third -party5. 
Accordingly, India considers that these terms do not provide any guidance in relation to the standard 
of review to be applied to an invocation of Article XXI in dispute settlement proceedings.  
5. India submits that the invocation of Articl e XXI of GATT 1994 is subject to review by the Panel. 
India notes that the Panel in Russia – Traffic in Transit supports India 's position. The Panel held "[i]t 
would be entirely contrary to the security and predictability of the multilateral trading system  
established by the GATT 1994 and the WTO Agreements, including the concessions that allow for 
departures from obligations in specific circumstances, to interpret Article XXI as an outright 
potestative condition, subjecting the existence of a Member's GATT  and WTO obligations to a mere 
expression of the unilateral will of that Member ."6  
6. India also recalls that the panel explicitly rejected the United States ' position that 
Article  XXI(b)(iii) is non -justiciable7 and correctly found that Article XXI(b)( iii) of the GATT 1994 is 
not totally "self -judging" in the manner asserted by Russia in those proceedings. Although the United 
 
1 Appellate Body Report, US – Wool Shirts and Blouses , p. 16  
2 US' first written submission, para. 2. 
3 Panel Report, Russia - Traffic in Transit , Appendix – subsequent conduct co ncerning Article XXI of the 
GATT 1947, paras. 1.11 – 1.14 with regard to the views expressed by several US agencies in 1951 in United 
States – Imports of Dairy Products  (1951).  
4 Exhibit USA -41, pp. 20 -21. 
5 Panel Report, Russia – Traffic in Transit , paras. 7.52 and 7.103.  
6 Panel Report, Russia – Traffic in Transit , para. 7.79.  
7 Panel Report, Russia – Traffic in Transit , para. 7.103 and fn 183.  WT/DS544/R/Add.1  
 
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  States has not specifically asserted that it is invoking Article XXI(b)(iii), it is unimaginable that any 
other sub -clause of XXI (b) could apply in the facts and circumstances of the present dispute.  
7. Further in the 1982 Decision Concerning Article XXI of the General Agreement (1982 
Decision)8 the contracting parties decided that a 'formal interpretation of Article XXI ' was yet to be 
taken and, in the meanwhile, 'all contracting parties…retain[ed] their full rights under the General 
Agreement ' and the GATT Council would give 'further consideration to this matter in due course '. 
Since this was a later and more specific ag reement, which expressly resolved to keep the 
interpretation of Article XXI open -ended and subject to further consideration, any purported 
agreement which predated the 1982 Decision limiting  the rights of parties to the GATT to this extent 
would be modifie d or set aside by the 1982 Decision. Accordingly, Article 31(3)(c) of the VCLT gives 
precedence to the 1982 Decision on the interpretation of Article XXI of GATT 1994.9 
III. Interpretation of Article XXI(b) of the GATT 1994  
8. India considers that the phr ase "which it considers" appearing in Article XXI(b) does not qualify 
the three subparagraphs of Article XXI(b). The subparagraphs only relate to the word "action" in the 
chapeau . In other words, the three subparagraphs identify circumstances (the first tw o identifying 
the types of goods and the third being a temporal circumstance) which must objectively be met in 
order for a Member to take action under the chapeau . India considers that the phrase "which it 
considers" relates only to the "necessity" of the action. Per contra , India is of the view that the 
phrase "for the protection of [that Member 's] essential security interests" is not qualified by the 
terms "which it considers".  
9. India acknowledges that the words "which it considers" imply that a certain  degree of 
discretion is granted to the Member taking action . Accordingly, the standard of review would be 
somewhere between "total deference" and " de novo " review, both of which are excluded10. It implies 
that the United States must provide a rationale a nd plausible explanation regarding how or why it 
considers that its measures are "necessary" for the protection of its essential security interests. It 
is not India 's position that the panel make a judgment on what the panel itself "considers" is 
"necessar y" in the circumstances.  
10. India also considers that the three subparagraphs to Article XXI(b) are exhaustive of the 
circumstances  covered by that provision. Article XXI(b) does not include any language to suggest 
that the three paragraphs are merely ill ustrative. In that regard, it may be observed that Article XX 
of the GATT 1994 containing "General Exceptions " similarly includes ten subparagraphs numbered 
(a) to (j) without conjunction between the ten subparagraphs. The ten categories are exhaustive, 
implying that in order to be justified under Article XX, a measure must necessarily fall "under at 
least one of the ten exceptions listed under Article XX".11  
11. India further considers that the words "relating to" in subparagraphs (i) and (ii) and "taken  in 
time of" in subparagraph (iii) are words linking each subparagraph to the word "action" in the 
chapeau. Accordingly, there must be a substantive nexus between particular subparagraph, the 
challenged measure and the security interests in question.  
12. Finally, India considers that each of the three subparagraphs of Article XXI(b) is a relevant 
context for the interpretation  of the other two subparagraphs. The chapeau  is also relevant context 
for interpreting the subparagraphs. In particular, the thr ee subparagraphs suggest that purely 
economic interests would not fall within the scope of Article XXI(b)12. India submits  that the phrase 
"other emergency in international relations" in Article XXI(b)(iii) must be interpreted on the basis of 
its ordinary  meaning in light of its context.13 The panel in Russia – Traffic in Transit , explained that 
 
8 Decision Concerning Article XXI of the General Agreement dated 30 November 1982, L/5426 at recital 
3 and para 3 (2 December 1982).  
9 International Law Commission, 'Conclusions of the work of the Study Group on the Fragmentation of 
International Law: Diffi culties arising from the Diversification and Expansion of International Law 2006' UN 
Doc. A/73/10, p. 180, paras 17; VCLT, Articles 30, 41.  
10 Appellate Body Report, EC – Hormones , para. 115.  
11 Appellate Body Report, Brazil – Tyres , para. 139. See also, A ppellate Body Report, Indonesia – Import 
Licensing Regimes , para. 5.96; Appellate Body Report, China – Raw Materials , para. 354; Appellate Body 
Report, EC – Seal Products , para. 5.169; Appellate Body Report, US – Gasoline , para. 57.  
12 Panel Report, Russia  – Traffic in Transit , paras. 7.75 and 7.133.  
13 Panel Report, Russia – Traffic in Transit , paras. 7.71 -7.76. WT/DS544/R/Add.1  
 
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  political or economic differences between Members are not sufficient, of themselves, to constitute 
an emergency in international relations for purposes of subpara graph (iii) ….. unless they give rise 
to defence and military interests, or maintenance of law and public order interests .14 Accordingly , 
for emergency in commercial or trade relations to be covered by Article XXI(b), it must pose a threat 
to the function ing and/or stability of the respondent state, including the maintenance of law and 
public order. Further, the use of the word "other" clearly "indicate[s] that war is one example of the 
larger category of 'emergency in international relations '".15 Thus, t he phrase "or other" makes clear 
that the situation of "emergency in international relations" is of the same category as that arising in 
the context of "war".   
13. Finally, India submits that three subparagraphs are not cumulative in nature. The 
subparagra phs describe three distinct circumstances in which a Member may invoke Article XXI(b). 
The intent of the drafters  is reflected in the structure of that provision, which contains three separate 
subparagraphs, that are separated by a semicolon and deal with substantially different subject 
matters16. This interpretation has been confirmed by the panel in Russia – Traffic in Transit17. The 
United States is therefore required to identify a specific subparagraph of Article XXI(b) on which it 
relies as part of i ts defence. The respondent may, if it wishes, rely on more than one subparagraph. 
However, it must demonstrate that the conditions in each of the subparagraphs is satisfied.  
IV. Exception to an Exception under the GATT 1994  
14. India submits that the text  and context of GATT 1994 do not support the proposition that the 
agreement provides an exception to an exception, i.e. specifically put, it is India 's view that 
Article  XXI(b) cannot be an exception to Article XIX. In this regard, India supports the inter pretation 
proposed by Switzerland18. During the course of the substantive meeting India had argued that 
Article XIX and XXI are separate mechanisms which allow Members to derogate from their general 
obligations under GATT to address exceptional situations  - economic emergency under XIX and 
security interests under Article XXI. The general obligations could be, for instance, obligations under 
Article I or Article II.  
15. India further submits that assuming without conceding that the proposition advanced by  the 
United States that Article XXI(b) is an exception to Article XIX, is tenable, the result would be merely 
a "release" for the United States from certain substantive and procedural obligations contained in 
Article XIX and the Agreement on Safeguards. Th is is because when a respondent seeks to apply 
Article XXI(b) as an exception to Article XIX, it makes two implicit admissions – (a) that the measure 
is indeed a safeguard measure; and (b) that by applying Article XXI(b), it is not required to follow 
the d isciplines contained in Article XIX and the Agreement on Safeguards. As a result, the 
Complainants would then be free to apply rebalancing measures pursuant to Article 8.3 because the 
respondent has already admitted that the measure at issue does not confi rm to the provisions of 
Agreement on Safeguards.  
 
14 Panel Report, Russia – Traffic in Transit , para. 7.75. See also , paras. 7.71 -7.76. 
15 Panel Report, Russia – Traffic in Transit , para. 7.72.  
16 Panel Report, Russia – Traffic in Transit , para. 7.68.  
17 Panel Report, Russia – Traffic in Transit , para. 7.68.  
18 Opening Statement of Switzerland at the First Substantive Meeting of the Panel, US – Steel and 
Aluminium Products (DS556) , paras. 111 – 119. WT/DS544/R/Add.1  
 
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  ANNEX C -5 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN  
I. INTRODUCTION  
1. Japan does not take a position on the merits of the claims and defenses that are before the 
Panel. However, Japan has a systemic interest in the scope of application of the Agreement  on 
Safeguards and the availability  of non -violation remedies when measures are justified under the 
security exception in Article XXI of the General Agreement on Tariffs and Trade 1994 ("GATT 1994").  
II. SCOPE OF APPLICATION OF THE AGREEMENT ON SAFEGUARDS  
2. A "safeguard measure" is not a defined term or notion. Thus it seems to have limited value to 
try to draw a line of what is a safeguard measure and what is not. Japan therefore disagrees with 
the view that a measure is a safeguard measure when it contai ns certain elements, because such a 
view is based on the premise that there is a definition for "a safeguard measure". In order to 
determine whether a measure can be characterized as a safeguard measure for purposes of 
Article  XIX of the GATT 1994 and the Agreement on Safeguards, various factors should be considered 
on a case by case basis taking into consideration all relevant factors.  
3. Notifications submitted by WTO Members are an example of a factor that may be relevant in 
certain cases. Although noti fications are not a prerequisite for the applicability of the safeguard 
disciplines to a measure, notifications indicate that the relevant measure is taken to remedy "serious 
injury or threat thereof." This provides some indication that the measure was des igned to prevent 
or remedy serious injury and thus should be considered as one of the relevant factors when 
determining the applicability of the safeguard disciplines.  
4. While notifications are an example of a relevant factor that may be considered to det ermine 
the applicability of safeguard disciplines, a WTO Member's formal "invocation" or its intention to 
exercise the rights under Article XIX of the GATT 1994 is not a necessary  factor for the safeguard 
disciplines to app ly. In fact, WTO panels and the A ppellate Body have generally avoided relying on 
a WTO Member's subjective intent.1 However, the Panel may consider the objectives pursued as 
reflected in the measure itself or in statements made by the Member taking the measure.  
5. Ultimately, a panel mus t look at all of the evidence available to ensure that a WTO Member is 
not seeking to avoid the disciplines of Article XIX and the Agreement on Safeguards, or to frustrate 
other WTO Members' right to rebalancing measures. It is likewise important to consid er all of the 
evidence, because otherwise, potentially, the Agreement on Safeguards could be applied to any 
measure raising the tariff above the Article II tariff bindings, including anti -dumping measures. This 
is particularly so given that a tariff by its  nature only applies to imports, and thus even in the case 
of anti -dumping measures, the allegation could be made that they are a remedy for injury suffered 
by the domestic industry.  
6. The terms "to suspend the obligation in whole or in part or to withdra w or modify the 
concession" under Article XIX of the GATT 1994 are not necessarily synonymous with violations of 
the GATT 1994. That is, it may be possible to determine that a Member withdrew or modified a 
concession without assessing whether there is a vi olation. Having said that, Japan recognizes that 
the determination of violation could turn out to be merely a consequential step that does not require 
much in terms of additional analysis. If the measure does not comply with the safeguard disciplines 
under  Article XIX of the GATT 1994 and the Agreement on Safeguards, then consequently, it will be 
found simply to violate a GATT 1994 obligation.  
7. A measure may have multiple objectives. For example, a measure may be taken for national 
security purpose as we ll as to prevent or remedy serious injury to domestic industries. In such cases, 
the application of Article XXI of the GATT 1994 as well as the Agreement on Safeguards may need 
to be considered, respectively. If a measure can be justified pursuant to Artic le XXI of the 
 
1 See, for example, Appellate Body Report, US – COOL , para. 420.  WT/DS544/R/Add.1  
 
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  GATT  1994, there is no need to justify the measure pursuant to Article XIX of the GATT 1994 and 
the Agreement on Safeguards. Article 11.1 (c) clarifies that measures that are in conformity with 
Article XXI of the GATT 1994, should not be proh ibited by Article 11.1(b) of the Agreement on 
Safeguards and that such a measure need not be in accordance with the Agreement on Safeguards. 
In this regard, Article 11.1(c) is one of the articles in the WTO Agreement that seek to avoid 
situations where a m easure that is WTO -consistent under one of the covered agreements becomes 
WTO inconsistent under another agreement.  
8. On the other hand, when the measure at issue is not justified under Article XXI of the 
GATT  1994, the situation is more complex and a cas e-by-case analysis would be required. If the 
measure can be characterised as a safeguards measure, considering all relevant factors, the 
safeguard disciplines should be considered. If the measure falls under Article 11.1(b) of the 
Agreement on Safeguards, the measure should be withdrawn as such a measure is prohibited. Japan 
notes that in some cases, it may be unclear whether the measure at issue can be justified as a 
safeguard measure or whether it falls under the measures that are prohibited under Article  11.1(b) 
of the Agreement on Safeguards. In such a case, it would be necessary to engage in a case -by-case 
analysis, considering various factors to determine whether the measure is one of those that is 
prohibited or whether the measure can be characterised  as a safeguard measure.  
III. NON-VIOLATION CLAIMS AGAINST SECURITY MEASURES JUSTIFIED UNDER ARTICLE XXI( B) OF THE 
GATT  1994  
9. While Japan does not take a view on whether the measures at issue are justified under 
Article  XXI(b) of the GATT 1994, Japan do es not consider that the potential availability of a non -
violation remedy, in and of itself, provides a basis for concluding that Article XXI(b) is self -judging, 
as suggested by the United States.  
10. Japan considers that, if a measure that otherwise woul d be inconsistent with the GATT 1994 
satisfies the security exception in Article XXI, then the appropriate conclusion to draw is that the 
measure does not conflict with the GATT 1994. This does not mean, however, that a non -violation 
finding under Article XXIII:1(b) can always be made against such measures. Indeed, there are 
several textual and contextual elements that appear to suggest that measures that satisfy Article  XXI 
are very unlikely to be subject to a non -violation remedy or, at the very least, th at a complaining 
party would have to overcome a high burden before succeeding in a non -violation claim in such 
circumstances.   
11. First, Article XXI(b) permits a WTO Member to take measures that would otherwise be deemed 
inconsistent with the GATT 1994 i n order to address essential national security risks. The purpose 
of the security exception under Article XXI(b) of the GATT 1994 would be frustrated if it were the 
case that security measures justified under Article XXI(b) were unvaryingly found to nullif y or impair 
benefits accruing to other Members, or to impede the attainment of the objectives of the GATT 1994.  
12. The exceptional nature of the non -violation remedy also weighs against applying a 
presumption that security measures justified under Articl e XXI(b) nullify or impair benefits or impede 
the attainment of objectives under the GATT 1994. In Japan's view, the very existence of a specific 
exception under Article XXI(b) might indicate that WTO Members did not necessarily expect that 
they would be c hallenged for actions that are properly justified under that exception.   
13. Article XXIII:1 requires a panel examining a non -violation claim under Article XXIII:1(b) to 
assess whether there was a reasonable expectation, at the time that market access com mitments 
were negotiated, that the WTO -consistent measure at issue would not be taken.2 Given that WTO 
Members agreed that security measures taken under Article XXI(b) are permissible, they clearly 
contemplated the possibility that the security exception would be invoked and thus should be 
deemed to have reasonably expected that Members would have recourse to such an exception. 
Japan is of the view that WTO Members cannot reasonably expect that other Members will never 
rely on Article XXI( b) to justify mea sures otherwise inconsistent with GATT obligations.  
14. It is by no coincidence that during the GATT -era, non -violation claims were mostly used to 
address subsidy measures, since at that time, explicit subsidy rules were not in place except for 
 
2 See Panel Report, Japan – Film, paras. 10.76 -10.77.  WT/DS544/R/Add.1  
 
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  export subs idies. This situation arose not because the Contracting Parties agreed not to discipline 
subsidy measures, but because the Contracting Parties could not agree on the rules. Thus, 
"non-violation claims" were used to address issues that lacked explicit rules. Unlike such 
circumstances where there was lack of explicit rules,  Article XXI contains explicit rules for security 
exceptions. If a measure fully satisfies the explicit rules in Arti cle XXI, it would not be reasonable to 
expect that such measures could not be taken, and thus such a measure would not result in being 
subject to non -violation remedy.  
 WT/DS544/R/Add.1  
 
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  ANNEX C -6 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NEW ZEALAND  
I. INTRODUCTION  
 
1. New Zealand's participation in this dispute reflects its systemic interest in the proper 
interpretation of Article XXI(b) of the General Agreement on Tariffs and Trade 1994 ( GATT ). 
Article  XXI(b) is being called upon by Members in a way that it has not been in the past.  In this 
changing clim ate, it is imperative that Article XXI(b) is interpreted in a principled and robust manner 
that both preserves its utility and also guards against its abuse.  
 
2. Article XXI(b) performs an important function.  It permits Members to take measures that 
would otherwise conflict with trade obligations in order to protect certain essential security interests, 
and grants Members a degree of latitude to determine where this is necessary.  This is not without 
limit, however.  Article XXI(b) contains elements that are subject to objective review by a panel.  
Further, like all treaty provisions, Article  XXI(b) must be applied in good faith.  Whether this good 
faith obligation has been fulfilled is also a matter that is open to panel review.  These limiting features 
maintain  the utility of the national security exception for Members, while still preserving the security 
and predictability of the international trading system and protecting Article  XXI(b) against misuse.  
 
II. SCOPE OF PANEL REVIEW UNDER ARTICLE XXI(b) GATT  
 
3. Article XXI(b) GATT provides that:  
 
Nothing in this Agreement shall be construed  
 
… 
 
(b) to prevent any contracting party from taking action which it considers necessary 
for the protection of its essential security interests:  
 
(i) relating to fissionable materials or the materials from which they are derived;  
 
(ii) relating to the traffic in arms, ammunition and implements of war and to such 
traffic in other goods and materials as is carried on directly or indirectly for the 
purpose of supplyin g a military establishment;  
 
(iii) taken in time of war or other emergency in international relations;  
 
4. A key issue in this dispute is the extent to which Article XXI(b) retains Members' discretion to 
determine the matters contained in that provision, and the extent to which action taken in reliance 
on it can be reviewed by a panel.  As a preliminary point, it can be noted that this is not a question 
of justiciability.  The fact that a provision fully or partially defers to the judgment of a Me mber will 
not, in itself, render conduct taken under that provision non -justiciable.  As discussed further below, 
all treaties must be applied and performed in good faith.1 Whether this obligation of good faith has 
been met is a justiciable matter suscepti ble to panel review.  The degree of discretion retained by 
Members under Article XXI(b) will, however, impact upon the nature of a panel's assessment of that 
conduct.  An examination of the scope of this discretion is therefore an appropriate place to start our 
interpretation.  
 
Article XXI(b) contains both elements that defer to Members' own judgment and elements 
that are capable of objective review by a panel  
 
5. The starting point to the interpretation of Article XXI(b) is the phrase 'which it considers' 
contained in the chapeau.  It is clear from the words directly preceding the phrase, that the term 'it' 
 
1 Vienna Convention on the Law of Treaties, Articles 31(1) and 26; Appellate Body Report US – Shrimp , 
at para 158.  WT/DS544/R/Add.1  
 
- 60 - 
 
  is a reference to the relevant contracting party.  To 'consider' means "to contemplate mentally, fix 
the mind upon; to think over, meditate or reflect on, b estow attentive thought upon, give heed to, 
take note of".2 This is an inherently subjective exercise.  The use of 'which it considers' in the chapeau 
to Article XXI(b) signals that what is being referred to is a subjective assessment to be carried out 
in good faith by the relevant contracting party.  
 
6. The phrase 'which it considers' qualifies both the assessment of the 'necessity' of the action 
taken and the determination of the invoking Member's 'essential security interests'.  This is clear 
from the str ucture of the chapeau to Article XXI(b).  The terms in the chapeau run one after the 
other.  There is no grammatical or formatting division suggesting the phrase 'which it considers' 
applies only to the term 'necessary' and not to 'for the protection of its essential security interests'.  
This is further supported by the use of the term 'its' before 'essential security interests'.  The chapeau 
is not referring to essential security interests in the abstract, it is referring to the essential security 
interests of the particular Member invoking Article XXI(b). It would be artificial to suggest that any 
entity other than a Member can determine that Member's essential security interests.  It is for a 
Member, acting in good faith, to determine its essential security i nterests, and the measures 
necessary to protect those interests.  
 
7. As recognised by the Panel in the recent decision Russia – Traffic in Transit , the phrase 'which 
it considers' does not qualify the three subparagraphs to Article XXI(b).  Unlike the chape au, the sub -
paragraphs are framed in objective terms.  As noted above, the chapeau uses ' it considers' and ' its 
essential security interests' to indicate that these are subjective matters left to the judgment of a 
Member.  In stark contrast, the subparagraph s are framed in purely objective terms: whether the 
measures relate to fissionable materials; whether the measures relate to military materials; whether 
the measures were taken in a time of war or emergency in international relations.  This reflects a 
deliberate effort to differentiate between those elements that are to be subjective and left to the 
judgment of a Member, and those that are objective requirements, subject to determination by a 
panel.  
 
8. This interpretation is supported by the context of Arti cle XXI(b), in particular, Article XXI(a), 
which provides that contracting parties shall not be required to furnish information the disclosure of 
which it considers contrary to its essential security interests.  An objective assessment of a Member's 
asserte d security interests and the necessity of action taken for their protection could require a panel 
to be provided with information contrary to Article XXI(a).  
 
9. This interpretation is also supported by the object and purpose of the GATT.  The general object 
and purpose of the GATT, as well as the Marrakesh Agreement Establishing the World Trade 
Organization, is to 'promote the security and predictability of the reciprocal and mutually 
advantageous arrangements and the substantial reduction of t ariffs and other barriers to trade'.3 A 
number of provisions, including Article XXI(b), permit Members to take measure that would 
otherwise conflict with trade obligations in order to protect other interests.  While these provisions 
grant Members a degree of flexibility, they contain in -built limits to preserve the security and 
predictability of the trading system and protect against abuse. The three subparagraphs to 
Article  XXI(b) perform this important limiting function by delineating the factual c ircumstances in 
which Article XXI(b) can be invoked.  As noted by the Panel in Russia – Traffic in Transit , it would be 
"entirely contrary" to the security and predictability of the multilateral trading system established 
by the above agreements to interpre t Article XXI(b) as "an outright potestative condition, subjecting 
the existence of a Member's GATT and WTO obligations to a mere expression of the unilateral will of 
that Member".4 
 
10. Accordingly, whether the factual circumstances set out in one of the  sub-paragraphs to 
Article  XXI(b) exist is a matter subject to objective panel review.  In carrying out this review, a panel 
should take into account the particular factual circumstances relevant to the invoking Member.  It 
would be unhelpful to attempt to p rescribe the scope of each of the factual circumstances contained 
in the sub -paragraphs.  Whether a particular set of facts falls within the sub -paragraphs is a matter 
to be assessed on a case by case basis. An overly formulistic approach to the interpretat ion of the 
circumstances described in the sub -paragraphs could unduly limit the scope of Article  XXI(b) and, 
 
2 www.oed.com . Last accessed 04 July 2019.  
3 See Appellate Body Report, EC – Computer Equipment , at para 82; Appellate Body Report  EC – 
Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US), at para 433; Appella te Body 
Report  EC – Chicken Cuts , at para 243.  
4 Panel Report,  Russia – Traffic in Transit , at para 7.79.  WT/DS544/R/Add.1  
 
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  in doing so, undermine its utility.  The terms of Article  XXI(b) are not static.  They must be read by a 
treaty interpreter in the light of contempor ary concerns of the community of nations.5 The degree 
to which the existence of these factual circumstances must be substantiated by the Member relying 
on Article XXI(b) will also depend on the circumstances.  
 
Members are obliged to perform their obligati ons under Article  XXI(b) GATT in good faith  
 
11. It is a principle of general international law that all treaty provisions must be interpreted and 
performed in good faith.6 This obligation of good faith arises irrespective of whether a provision 
defers to  the judgment of Members or is subject to objective review by a panel.  
 
12. The obligation to perform a treaty in good faith requires Members to not use the exceptions 
in Article XXI(b) as a means to circumvent its obligations under GATT.7 In carrying out  an assessment 
of conduct taken in reliance on Article XXI(b), a panel may consider whether this obligation of good 
faith has been met. There is no test, in the abstract, for how a panel should assess whether this 
obligation of good faith has been met.  'Good faith' is not a threshold, or a standard of proof, it is an 
assessment of the integrity of a Member's performance of a particular treaty provision.  This 
assessment will differ depending the facts and circumstances of the particular case.  In the context 
of Article XXI(b), it will likely involve consideration of the connections between the measure in 
dispute, the essential security interests engaged and the factual circumstances in the relevant sub -
paragraph.  The question for the panel is whether, in all r elevant circumstances, the Member's 
reliance on Article XXI(b) is a good faith performance of that provision.  
 
 
5 Panel Report, US – Shrimp , at para 129.  
6 Vienna Convention on the Law of Treaties, Articles 31(1) and 26; Appellate Body Report US – Shrimp , 
at para 158.  
7 Panel Report, Russia – Traffic in Transit , at para 7.133.  WT/DS544/R/Add.1  
 
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  ANNEX C -7 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY  
I. THE "JUSTICIABILITY" OF ARTICLE XXI(b) OF THE GATT 1994  
1. The United States accepts that the Panel has jurisdiction over this dispute, in the sense that 
the DSB has established the Panel to examine the matter set out in the panel request.1 However, 
the United States asserts that the Panel cannot undertake any me aningful review of the US actions 
that are purportedly justified under Article XXI(b),2 because, based on its terms, "whether and what 
circumstance action is necessary to protect its essential interests" is entirely "self -judging", by virtue 
of the phrase  "which it considers".3  
 
2. In sum, the United States argues that Article XXI(b) establishes a right – to take GATT -
inconsistent security measures – with no scope whatsoever for a panel to review the obligations and 
conditions that qualify that right. Th us, the dispute is subject to the Panel 's jurisdiction , but the 
Panel may not undertake an objective review, by virtue of the phrase "which it considers".  
 
3. Norway strongly disagrees with this argument by the United States. If mere invocation of 
Article XXI(b) would render a claim "non -justiciable", this would allow easy circumvention of WTO 
obligations. If a respondent could effectively bar a panel, that the United States acknowledges enjoys 
jurisdiction, from undertaking objective review by mere invocat ion of a security exception, this would 
give "carte blanche" for WTO Members to unilaterally set aside the rules that the legitimacy of the 
rule-based system rests on. A respondent could invoke a variety of protectionist interests under the 
guise of nation al security, and thereby avoid scrutiny of its WTO -inconsistent measures altogether. 
Such a measure could violate any of the Member 's WTO obligations, and a WTO panel would be 
barred from making any findings of inconsistency. An interpretation of Article X XI(b), which had this 
effect, would render all the obligations in the GATT 1994 effectively unenforceable.  
 
4. Moreover, if the intentions of the negotiators were for the panel to have no authority to assess 
a Member 's invocation of a security exception p rovision, one would also have expected such an 
important and significant matter be expressly provided for.4  
 
II. ORDER OF ANALYSIS UNDER ARTICLE XXI(b) OF THE GATT 1994  
5. Article XXI(b) operates to justify certain GATT -inconsistent action, using the sam e language 
as Article XX: "nothing in this Agreement shall be construed to prevent any Member from taking any 
action which…". Hence, Article XXI(b) is, just like Article XX, an affirmative defence to a violation of 
the GATT 1994. Under Article XX, panels a nd the Appellate Body have, without exception, addressed 
first whether the complainant has made out its claims of WTO -inconsistency; and second whether 
the respondent has made out its affirmative defence that the measures are justified. This is because 
an affirmative defence is only relevant where a panel has found a violation. If there is no violation, 
then the relevant exceptions provision has no operative role; there is nothing to justify in the first 
place. Logically, therefore, where a respondent invok es Article XXI(b), the panel should first confirm 
whether there is a violation; and second whether the violation is justified.  
 
6. Moreover, it is well -accepted, from jurisprudence under Article XX of the GATT 1994, that it is 
the WTO -inconsistent aspect o f the measure – and not the measure as a whole – which must be 
justified.5 Of course, a panel cannot identify the WTO -inconsistent aspects of a measure that would 
require justification, until it has addressed the claims. Hence, in our view, it is clear th at the same 
reasoning must apply with respect to the other exceptions provisions applicable under the GATT 
1994. By contrast, if a panel were obliged to address Article XXI(b) before addressing the claims, it 
 
1 The United States’ first written submission, para. 184.  
2 The United States’ first written submission, para. 184.  
3 The United States’ first written submission, para. 3.  
4 The “justicia bility” of the security exceptions is also supported by the GATT Council Decision 
Concerning Article XXI of the General Agreement, 30 November 1982, L/5426.  
5 Appellate Body Report, US – Gasoline , pp. 13 -14; Appellate Body Report, Thailand – Cigarettes , para. 
177; Appellate Body Reports, EC – Seal Products , para. 5.185.  WT/DS544/R/Add.1  
 
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  would also have to assess whether the measures are justified in a vacuum, without yet having 
determined which aspects of the measures are WTO -inconsistent.  
 
III. BURDEN OF PROOF UNDER ARTICLE XXI (b) OF THE GATT 1994  
 
7. Article XXI(b) of the GATT 1994 is an affirmative defence, just like Article XX. The Appellate 
Body has found that the burden for establishing limited exceptions in the GATT 1994 lies with the 
party asserting the defence.6 Hence, a respondent invoking an affirmative defence must bear the 
burden of proving that the applicable conditions are met. If the respondent does not take on that 
burden, beyond invoking an exception, a panel should not proceed to consider the merits of the 
exception.  
 
8. Consequently, if the complainant establishes that a measure imposed by the respondent is 
inconsistent with the provisions of the GATT 1994, and the respondent does not make a prima facie  
case that those measures are justified under Artic le XXI, the panel must, as a matter of law, rule in 
favour of the complainant. In our view, the panel in Russia – Traffic in Transit  failed, in effect, to 
treat Article XXI(b) of the GATT 1994 as an affirmative defence. The respondent in that dispute 
argue d only that the security exception is not "justiciable", and did not adduce evidence and 
argument on the merits. In those circumstances, the panel should have found that the respondent 
did not make its case, and found in favour of the complainant.  
 
IV. STANDARD OF REVIEW UNDER ARTICLE XXI (b) OF THE GATT 1994  
 
9. The United States agrees that the Panel has jurisdiction over this matter.7 However, the United 
States takes the radical position that, because it has invoked Article XXI(b) of the GATT 1994, the 
Panel cannot make any substantive findings. In other words, while the Panel has jurisdiction, its 
review is empty of any substantive content.  
 
10. In any given dispute, the standard of review under Article 11 "must be understood in light of 
the specific obligations of the relevant agreements that are at issue in the case".8 To give effect to 
the chosen terms of Article XXI(b), and to the obligation to make an "objective  assessment", the 
Panel must reject the US position that the appropriate stan dard of review under Article XXI(b) is 
total deference to the respondent.  
 
V. INTERPRETATION OF ARTICLE XXI(b) OF THE GATT 1994  
 
11. The US position that Article XXI(b) is self -judging rests on two incorrect interpretive premises: 
first, the phrase "which  it considers" applies to the subparagraphs of Article XXI(b); and second  the 
phrase renders any other terms to which it attaches "self -judging". In Norway´s view, however, the 
subparagraphs of Article XXI (b) are not qualified by "which it considers" and the chapeau is not 
"self-judging" by virtue of the terms "which it considers".  
 
A. The subparagraphs of Article XXI(b)  
 
12. The US first interpretive error is to misunderstand the relationship between the chapeau  and 
the subparagraphs. The United States a rgues that subparagraphs (i) and (ii) qualify the term 
"essential security interests" in the chapeau , and not the word "action".9 On this basis, the United 
States (incorrectly) argues that each subparagraph must be understood as simply endings to a 
senten ce that begins with "which it considers". The United States thereby injects the verb "consider" 
from the chapeau  into the subparagraphs. As a result, for the United States, the fulfilment of the 
legal conditions in the subparagraphs depends entirely on a r espondent 's subjective "consideration". 
The United States is wrong.  
 
13. Properly interpreted, each of the three subparagraphs qualifies the word "action", and not the 
words "essential security interests". This follows from the text, context, object and pu rpose, and 
negotiating history of Article XXI(b). In particular, the US view is irreconcilable with the Spanish 
 
6 Appellate Body Report, US – Wool Shirts and Blouses , p. 14.  
7 The United States’ first written submission, para. 184.  
8 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 92; Appellate Body 
Report, US – Countervailing Duty Investigation on DRAMS , para. 184.  
9 The United States’ first written submission, paras. 29 -34. WT/DS544/R/Add.1  
 
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  version of the text, in which the term " relativas " (relating) can only qualify the word " medidas " 
("action"); and, the chapeau / subparagraphs a re broken by a comma.  
 
14. The chapeau  / subparagraph relationship has important implications for the Panel 's approach 
under Article XXI(b). Specifically, as a consequence of the relationship, a Member 's "action" under 
Article XXI(b) is subject to two sets of distinct and independent conditions:  
 
(1) the "action" must "relate to" the specific circumstances set forth in subparagraph (i) 
or (ii), or be "taken in time of war or other emergency in international relations", 
under subparagraph (iii); and,  
 
(2) it must be "action" that the Member "considers necessary" for the protection of its 
essential security interests.  
 
15. As a first step, therefore, a panel must make an objective assessment of wh ether the Member 
has demonstrated that the "action" meets the circumstances / situation in at least one of the 
subparagraphs. Textually, the phrase "which it considers" is not part of this step. Therefore, a 
Member 's demonstration that it fulfils the condi tions in the subparagraphs is not subject to a more 
forgiving standard of review flowing from the verb "consider" in the chapeau . 
 
16. The United States has not identified a subparagraph of Article XXI(b), let alone substantiated 
that its actions meet the terms of any of the subparagraphs. The United States therefore fails to 
make a prima facie  case, and the Panel 's analysis may stop at the first step.  
 
B. The chapeau  of Article XXI(b)  
 
17. The US second interpretive error relates to the second step of the Panel 's analysis: is the 
measure "action" which the Member "considers necessary" for the protection of its essential security 
interests? The United States is wrong that the legal effect of the terms "which it considers" is that, 
in assessing this question,  a panel must afford total deference to the respondent.  
 
18. Norway agrees that the phrase "which it considers" means a panel should afford the 
respondent a degree of deference. However, a standard of "total deference", with no scrutiny 
whatsoever of a Mem ber's action, fails to give effect to the chosen treaty terms, and the requirement 
of "objectivity" under Article 11 of the DSU.  
 
19. The verb "consider" has a specific meaning: to "look attentively"; and, in transitive form, "to 
contemplate mentally, fix the mind upon".10 Thus, the verb "considers" in the chapeau  of 
Article  XXI(b) establishes an obligation for a Member to undertake an attentive examination that the 
legal conditions in the chapeau  are met.  
 
20. Indeed, the surrounding words "necessary", "f or the protection of", and "essential" each have 
their own specific meaning, and establish legal conditions that constrain the types of action that a 
respondent may take. The treaty interpreter cannot interpret two words in the chapeau  in a way 
that depriv es the surrounding context of meaning.  
 
21. By way of contrast, the drafters could have chosen a different verb than "considers", and 
different surrounding words. For example, Article XXI(b) could have permitted a Member to take 
any action which it "declar es necessary for the protection of its essential security interests"; or, 
which it "considers, in its judgment, fruitful to its security interests". The more open -ended language 
in each example would connote a far greater degree of discretion than the lang uage the drafters 
actually chose.  
 
22. The US interpretation of the chapeau as "self -judging" therefore reduces the chapeau 's 
disciplines to inutility, and overrides Article 11 of the DSU . If the Panel accepts that Article XXI(b) is 
"self-judging", a Member could justify any action under the chapeau , however spurious its national 
security justification, thereby circumventing its GATT 1994 obligations, and defeating the object and 
purpose o f the GATT 1994.  
 
10 Oxford English Dictionary definition of “consider”, last accessed 4 November 2019, (Exhibi t 
NOR-27). WT/DS544/R/Add.1  
 
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  ANNEX C -8 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE RUSSIAN FEDERATION  
I. Introduction  
1. Russia welcomes this opportunity to present its views as a third party in these disputes.  
2. Russia recalls that seven Members challenge the US' import adjustments on steel and 
aluminium products in pa rallel disputes.1 The proper legal characterization of these measures is at 
the heart of each of them. The reasons and grounds for adopting the measures at issue are not 
country -specific and are applicable to all complaints, showing a significant overlap between these 
disputes.  
3. While the Russian Federation recognizes the exclusive right of the respondent to choose its 
line of defense, the US ignored and, therefore, failed to rebut complainants` specific arguments 
regarding inconsistency of the measures  at issue with the GATT 1994 and the Agreement on 
Safeguards merely asserting that these measures are consistent with Article XXI (b) of the GATT 
1994. In this regard, Russia stands that (i) the US failed to invoke Article XXI(b) of the GATT 1994 
to justif y the measures at issue as necessary for protection of its essential security interests; (ii) the 
measures at issue are safeguards in their essence.  
II. The task of the Panel and the order of analysis  
4. The complainants in each of the seven disputes claim  that the measures by the United States 
on certain steel and aluminium products fall within the scope of the Agreement on Safeguards and 
Article XIX of the GATT 1994. The United States, on the other hand, does not characterize its 
measures on steel and alu minium as safeguard measures: according to the United States, the 
measures were introduced pursuant to Section 232 of the Trade Expansion Act of 1962, aimed at 
protection of national security interests and fortification of steel and aluminium industries .  
5. The fact that the measures at issue are not characterized by the United States under the 
domestic law as safeguards is, in and of itself, not dispositive of the question of whether the 
measures constitute safeguards within the meaning of Article 1 of th e Agreement on Safeguards. 
Otherwise,  the domestic characterization of a measure could negate Member's obligations under the 
WTO agreements.  
6. In such a situation, the Panel`s first task is to determine whether or not the measures at issue 
are designed: 1 ) solely to protect essential security interests of the United States; 2) solely to avoid 
injury (or threat thereof) to its national steel and aluminum industry from imports of like or directly 
competitive products; 3) combination of both items.  
7. If the  Panel positively concludes that the measures at issue fall solely under the first scenario 
(protection of essential security interests of the United States ), it will be in a position to proceed 
with the analysis of the United States ' defense under Article  XXI(b) of the GATT 1994. If the Panel 
determines that the measures are designed to protect the US domestic steel and aluminum  
industries from the injury or threat thereof caused by imports of like or directly competitive products,  
the Panel may proceed with examining their consistency with Article XIX of the GATT 1994 and the 
Agreement on Safeguards.  
8. To conclude, whether or not the measures by the United States qualify as measures provided 
for in Article XIX of the GATT 1994 or measures provided for in Article XXI(b) of the GATT or both is 
an objective question that the Panel must decide based on the objective assessment that it is 
required to make pursuant to Article 11 of the DSU. In making its objective assessment, the Panel 
 
1 These parallel disputes over the legality of the United States' import adjustments on steel and 
aluminium products, are DS544 (China), DS547 (India), DS548 (EU), DS552 (Norway), DS554 (Russia), 
DS556 (Switzerland) and DS564 (Turkey).  WT/DS544/R/Add.1  
 
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  must engage in a case -specific analysis by examining all of the relevant facts and examine the 
constituent features of the measures at issue.  
III. Invocation of Article XXI(b) of the GATT 1994  
9. There is no disagreement between the parties that the panels have jurisdiction to resolve the 
disputes, as the US confirms its existence. The Panels were established by the DSB with the standard 
terms of reference in accordance with Article 7.1 of the DSU,  without any exemptions, exceptions 
or limitations thereto. Therefore, the Panel's function is to examine the matters set out in the panel 
requests and to make an objective assessment of the matter before it pursuant to Article 11 of the 
DSU, as well as th e applicability of and conformity with the relevant covered agreements assisting 
the DSB in making its findings and recommendations. Making any provisions "non -justiciable", the 
way the US puts it forward, will directly prevent the Panel to meet this funct ion. 
10. Nothing in the Panel's terms of reference or in the WTO Agreements indicates that this Panel 
is not able to resolve the disputes and make necessary findings, or that invocation of Article XXI(b) 
of the GATT 1994 affects in any way or limits the ab ility of the Panel to make such findings and 
therefore to assist the DSB in making relevant findings and recommendations.  
11. Specific attention should also be paid to the US attempts to introduce the concept of 
"justiciability" to the context of the WTO Agreement without providing any arguments based on the 
text of any of the WTO Agreements, including the DSU, in order to support this concept. Given that 
the WTO Agreements do not provide for this concept, explicitly or implicitly, Russia would like to 
caution the Panel from taking the path of bringing a new term to the WTO dispute settlement system 
and remind that the recommendations and rulings of the DSB cannot add to or diminish rights and 
obligations provided in the covered agreements. Introduction of a concept non -existent under the 
covered agreements clearly violates the provisions of Article 3.2 of the DSU.  
12. Turning to the substance of Article XXI(b) of the GATT 1994, Russia would like to notice the 
following. It starts with a chapeau ("nothing in  this agreement shall be construed") followed by the 
list of actions that may not be prevented by the application of the GATT 1994. In the wording of the 
chapeau of this Article there are no limiting conditions under which the measure applied shall fall. 
On the contrary, the chapeau provides that there could be no limitations in the Agreement for the 
specific purposes provided by that Article.  
13. The wording in this part of the said Article provides that it is the Member taking the action 
who determines w hich actions are necessary to protect its essential security interests and excludes 
any objective examination or evaluation by adjudicative body. Therefore, the Panel is not in a 
position to make an objective determination as to whether the Member taking s uch an action is 
inconsistent with the chapeau.  
14. The adjectival clause "which it considers" in the chapeau can be read to qualify the "necessity" 
of the action for the protection of the invoking Member`s essential security interests, as well as the 
determination of these "essential security interests".  
15. Thus, Russia considers that it is within the sole discretion of a Member to determine its 
essential security interests and what actions are necessary for their protection. Should a Member 
consider cer tain actions necessary to protect its essential security interests, the declaration thereof 
by that Member is enough to satisfy the requirements of the chapeau of Article XXI(b) of the GATT 
1994. Neither WTO panels nor the WTO itself have the right to dete rmine the essential security 
interests for the Member, whether the Member correctly chose the action necessary to protect those 
security interests and whether or not that action is indeed necessary.  
16. The presence of subjective element, however, does no t preclude the panels to assess the facts 
related to the measures at issue, applicability of the GATT to the measures at issue and conformity 
of the measures at issue with the relevant provisions. The possible panel`s judgement that the term 
"which it cons iders" qualifies the determination of the essential security interests and necessity of 
the actions and, thus, leaves these elements under sole discretion of the Members, does not prevent 
the Panel to finish its analysis and resolve the matter before it in  a WTO consistent way.  WT/DS544/R/Add.1  
 
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  17. Meanwhile, the compliance with Article XXI(b) of the GATT 1994 is conditioned by three 
distinct settings (subparagraphs i -iii). These subparagraphs and the way they are formulated 
represent the objective elements that are suscep tible to the Panel's review au contraire  to the 
chapeau.  
18. The required nexus between a particular subparagraph and the measures (actions taken to 
protect) is established through the phrases "relating to" (connection with subparagraphs (i -ii)) and 
"take n in time of" (connection with subparagraph (iii)).  
19. As a result, the Panel shall determine whether the measures at issue meet the requirements 
of either subparagraph. In order to do so, the Panel shall assess the legal arguments and evidence 
provided i n support. A conclusion that the measures meet these requirements is a necessary 
prerequisite in order to establish whether they could be justified under the national security 
exceptions.  
20. However, Russia wishes to note that the US seems to have invoke d only the chapeau of 
Article  XXI(b) of the GATT 1994 without indicating which particular subparagraphs out of three 
applies and why. The reading of Article XXI(b) of the GATT 1994 proposed by the US makes part of 
this Article, i.e. subparagraphs (i) -(iii), redundant and inutile. However, the drafters of the 
GATT  1994 have specifically added the three subparagraphs qualifying the introductory statement, 
which must not be regarded as effectively absent in the text. The Panel bears the task of giving 
them the ir proper meaning.  
21. Thus, Russia is of a position that when invoking Article XXI(b) of the GATT the respondent is 
under obligation to identify a particular subparagraph of Article XXI(b) of the GATT 1994. The 
complainants and the Panel should not be le ft to guess whether the measures in question are related 
to any of subparagraphs. Mere reference to Article XXI(b) without any identification of a particular 
subparagraph or any combination of such subparagraphs strips these paragraphs of all the meaning 
and reduces the text of the Article to its chapeau only.   
22. Therefore, in these proceedings, the Panel was deprived of an ability to assess in which 
particular circumstances the measures at issue were taken and examine whether these particular 
circumstanc es really exist within the meaning of Article XXI(b)(i) -(iii). The US failed to fulfill its 
burden of proof and appropriately justify its defense.  
23. Although the US failed to identify relevant subparagraphs and provide any arguments why 
they are applied  in relevant situation, Russia would like to note the following.  
24. None of the subparagraphs of Article XXI(b) of the GATT 1994 could be applied in the present 
situations since neither the relevant acts of the US, nor its submissions shed light on the c lose and 
genuine relationship between the measures in question and fissionable materials or the materials 
from which they are derived; or the traffic in arms, ammunition and implements of war and to such 
traffic in other goods and materials as is carried o n directly or indirectly for the purpose of supplying 
a military establishment. Neither the relevant acts of the US, nor its submissions elaborate on any 
chronological concurrence in case of the measures at issue and any war or any other emergency in 
international relations that required the US to take said measures.  
25. It is important to note that import adjustments on steel and aluminium (1) were implemented 
by the US through the same sources, same legal acts in respect of all the countries, (2) have the  
same reasoning and grounds for all of the adjustments in respect of all the Members affected, (3) it 
is not possible to isolate the cause for adoption of the measures at issue for one particular WTO 
Member.  
26. Therefore, even if the Panel were in a posi tion to engage into analysis of the applicability of 
any of the subparagraphs to any of the WTO Member in isolation, it would constitute an error since 
the measures at issue are not country -specific.  
27. To sum up, in Russia`s view the task of the Panel is  (i) to conclude that the chapeau of 
Article  XXI(b) of the GATT 1994 is a subjective element, remaining in the discretion of the sovereign 
state, limited by the obligation of good faith; (ii) to assess whether the defending Member acted in 
good faith while  imposing and maintaining the measures at issue; (iii) to review whether the WT/DS544/R/Add.1  
 
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  defending Member met the requirements under subparagraphs. In respect of the latter, Russia is of 
the position that the US failed to establish a prima facie  case under Article XXI (b) of the GATT, as it 
failed to 1) refer to particular subparagraph, 2) provide all relevant evidence and explanations 
supporting that those actions taken for protection of the essential security interests (i) relate to 
fissionable materials, (ii) relate to traffic in arms, ammunition and implements of war, and/or 
(iii) were taken in time of war or other emergency.  
28. In their turns, the complainants in these disputes have provided sufficient evidence to 
establish prima facie  case of numerous violations u nder the Agreement on Safeguards and the 
GATT  1994. This evidence supports complainants` position that the measures at issue are purely 
safeguards in their nature, object and purpose and have nothing in common with the security 
exceptions. We believe that the nature of the measure could not be unilaterally determined by the 
Member. In order for a measure to be subject to security exception it is not enough just to label it 
as such under domestic procedures.  
29. Russia would also like to note that if a parti cular measure complies with a particular provision 
of a particular WTO Agreement, this automatically means only one thing – that the measure complies 
with that provision of that particular WTO Agreement. This does not mean that the measure is 
automatically  excluded from being subjected to provisions of another WTO Agreement. Therefore, if 
the measures at issue meet the requirements of Article XXI(b) of the GATT 1994, their consistency 
with Article XXI(b) of the GATT 1994 does not exclude the Panel`s examina tion of the applicability 
of the Agreement on Safeguards.  
30. There is no mutual exclusivity between the GATT 1994 and the Agreement on Safeguards. 
Article XIX of the GATT 1994 and the Agreement on Safeguards are silent in respect of particular 
reasons for  a Member to seek to prevent serious injury to its producers as a result of increased 
imports, whether this is done for employment, protection of traditional industries, environmental, 
national security or any other reasons. Therefore, when a Member adopts  an emergency action 
against such imports the Member shall comply with the requirements of Article XIX of the 
GATT  1994. If the prevention of injury is needed for national security purposes, the Member adopting 
the emergency action shall comply with the re quirements of Article XXI(b) of the GATT 1994.  
IV. Legal characterization of measures at issue as safeguards  
31. The Russian Federation concurs with the complainants that the United States' measures at 
issue present the constituent features of safeguard me asures within the meaning of Article XIX of 
the GATT 1994 and the Agreement on Safeguards, and thus constitute safeguard measures on the 
basis of an objective analysis.  
32. First, the United States has withdrawn or modified its tariff concessions and susp ended at 
least one of its obligations under the GATT 1994. By introducing additional duties, the United States 
has exceeded the bound rate established under its Schedule of concessions on goods (Schedule), 
which amounts to withdrawal or modification of its  tariff concessions. By withdrawing or modifying 
its concessions under the Schedule, the United States has suspended its obligations under 
Article  II:1(a) and (b) of the GATT 1994.  
33. Second , by their design, structure and expected operation, the import adjustments on certain 
steel and aluminium products sought to prevent or remedy the impairment to the domestic industry 
of the United States caused or threatened by increased imports of the subject products. This specific 
objective of the United States' me asures is discernible from the texts of the U.S. President's 
respective Proclamations, as well as the investigation Reports on the effects of imports of steel and 
aluminium coupled with related documents, such as the U.S. President's Memoranda on imports o f 
steel and aluminium, associated announcements, as well as numerous statements by the U.S. 
President.  
34. Third , the withdrawal or modification of tariff concessions and suspension of GATT obligations 
have a demonstrable link to the prevention or remedia tion of the alleged serious injury.  
35. In the range of legal instruments and official statements, the United States specifically 
declared that the measures are sought to stop the decline in its steel and aluminium industries 
caused by imports, to provide relief to those industries from competit ion with imports, to enable the WT/DS544/R/Add.1  
 
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  respective domestic industries to increase their production capacity or capacity utilization and 
profitability, and to prevent the closures of production facilities.  
36. Tariff concessions and obligations under the GATT 1994 , in particular, those under 
Article  II:1(a) and (b), however, impeded the ability of the United States to achieve its goals 
(prevention or remedying the alleged injury or threat thereof to the U.S. industry). Thus, the United 
States chose to suspend those tariff concessions and obligations. While suspending its tariff 
concessions and its obligations under Article II:1(a) and (b) of the GATT 1994, the United States 
has limited imports of steel and aluminium products by making steel and aluminium products 
originating from certain Members more e xpensive when marketed in the United States.  
37. Hence, there is a clear link between the withdrawal or modification of tariff concessions and 
suspension of GATT obligations to the prevention or remediation of the alleged serious injury.  
38. The US in sup port of its position states that notification under the relevant provisions of 
Article  XIX of the GATT 1994 and of the Agreement on Safeguards is a prerequisite to the 
applicability of safeguard disciplines to the measures taken. In respect of import adjus tments on 
certain steel and aluminium products it did not notify them as safeguard measures, on this basis, in 
its view, the measures could not be deemed safeguards. These allegations must fail.  
39. Notifications pursuant to Article XIX:2 of the GATT 1994  or Article 12 of the Agreement on 
Safeguards are neither necessary condition nor a prerequisite for the applicability of safeguard 
disciplines. The compliance with any of obligations set forth in Article XIX:2 of the GATT 1994 and 
Article 12 of the Agreem ent on Safeguards does not affect the consistency of measures with other 
provisions under Article XIX of the GATT 1994 and the Agreement on Safeguards.  
40. Absence of a notification does not and cannot change any of the constituent features of 
safeguards measures. Being otherwise would help Members to escape from application of the 
provisions of the Agreement on Safeguards and negative consequences to their measures (for 
example, DSB's finding on inconsistency of such measures with the Agreement on Safegua rds).  
41. Notification requirements are not an instrument of characterization or identification of 
measure's nature, but of transparency. Otherwise, if the applicability of a WTO agreement were to 
be established based on Member's compliance with the notif ication requirements:  
- should that be so, the issue of the applicability of an agreement would be excluded from 
objective assessment by a panel, as it would be left for Member's discretion to choose a 
particular agreement under which to notify its measur e;  
- in such a logic a measure that was not properly notified under particular agreement 
becomes non -existent, as by not notifying that measure under any agreement at all a 
Member effectively declares that there are no relevant notification requirements t hat a 
measure falls under. Therefore, there's no WTO agreement that measure is covered by.  
42. Furthermore, the United States claims that the Agreement on Safeguards does not apply to 
measures that a Member considers necessary for the protection of its es sential security interests 
through Article 11.1 (c) of the Agreement on Safeguards, which provides that "this Agreement does 
not apply to measures sought, taken or maintained by a Member pursuant to provisions of GATT 
1994 other than Article  XIX". In this regard, Russia notes the following.  
43. Hypothetically, there might be three scenarios. First, a measure is sought, taken or maintained 
exclusively pursuant to provisions of Article XIX of the GATT 1994. Second, a measure is sought, 
taken or maintained pur suant to provisions of Article XIX of the GATT and some other provisions of 
the GATT 1994. Third, a measure is sought, taken or maintained exclusively pursuant to provisions 
of the GATT 1994 other than Article XIX of the GATT 1994. Only the latter category  of measures is 
excluded from the scope of the Agreement on Safeguards in accordance with Article 11.1(c).  
44. We note that every term in this Article, as any treaty provision, has its own meaning and due 
attention should be paid to it. Without providing d efinitions of the terms "sought", "taken" or 
"maintained" Russia is of the view, that they represent different stages of measure's "life", i.e. 
whether a Member tries to take the measure (initial stage where the measure does not exist yet), WT/DS544/R/Add.1  
 
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  whether a Membe r has already taken the measure (the action is made, measure becomes alive) and 
"maintained" (the measure exists for some time, long lasting measure that continues to exist).  
45. The second interpretation of the words "seek", "take" and "maintain" may be d erived from the 
text of Article 11.1(b) which uses the same combination of the terms. In the context of this provision 
it is obvious that the word "seeks" is used in the meaning "asks/requests from someone". This 
provision covers measures, in particular, i n respect of exports, that can only be obtained from 
another Member. Therefore, the text of Article 11.1(b) effectively says that a Member must not 
request another Member to adopt, in particular, exports restrictions. Given that the forms in which 
"emergen cy actions" may be taken under Article XIX of the GATT and the Agreement on Safeguards 
are not predetermined or exhaustively listed, the same meaning of the term "seek" may be applied 
in the context of Article 11.1(a) or 11.1(c).  
V. Conclusion  
46. Russia has already noted that each of the seven disputes has the same subject matter and, 
therefore, there is a significant overlap between them. This fact has a bearing on how the panels in 
the respective disputes should go about the ensuring security and predic tability to the multilateral 
trading system. The delicate issue here is that when two or more panels are tasked with the duty to 
resolve the same matter or closely related claims such a situation raises complex issues. The most 
dangerous consequence of the  parallel proceedings involving the same or closely connected matters 
is the contradictory outcome of the disputes. This should be avoided.  
47. It follows from Articles 3.2 and 3.4 of the DSU that a holistic and coherent resolution of all 
parallel disputes  is critical  for the overall vitality of the multilateral trading system.  
48. Russia reminds that the ultimate goal of the Panel is to make such findings "as will assist the 
DSB in making the recommendations or in giving the rulings provided for in the cov ered agreements" 
pursuant to Article 11 of the DSU. The achievement of this goal will be seriously prejudiced should 
the panels arrive at the different conclusions as for the proper legal characterization of the measures 
at issue in the respective disputes , given that these measures are the same.  
 WT/DS544/R/Add.1  
 
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  ANNEX C -9 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SINGAPORE  
I. INTRODUCTION  
1. This dispute raises novel issues concerning the interpretation of Article XXI of the GATT and 
whether it can be used as a defence to justify inconsistencies with the Safeguards 
Agreement. Singapore is not commenting on the merits of the claims and defences raised 
by the parties to the current disputes. Singapore's participation is strictly limited to whether 
Article XXI is applicable to and can be used as a defence to justify inco nsistencies with the 
Safeguards Agreement, whether a Panel has jurisdiction over Article XXI, and the 
interpretation of Article XXI, in particular, the chapeau of Article XXI(b).   
II. EXECUTIVE SUMMARY OF SINGAPORE'S THIRD PARTY ORAL STATEMENT  
A. Whether A rticle XXI is applicable to and can be used as a defence to justify 
inconsistencies with the Safeguards Agreement  
2. Article XXI is not applicable to and cannot be used as a defence to justify inconsistencies 
with the Safeguards Agreement. The Appellate Bo dy has applied a standard "analytical 
approach"  in determining the relationship between the provisions of different covered 
agreements1 and the absence of an explicit cross -reference to Article XXI in the Safeguards 
Agreement is not per se  dispositive of the issue.  
3. Safeguard measures allow WTO Members to take action that would otherwise be 
incompatible with their obligations under the GATT 19942. Article XIX of the GATT 1994 and 
the Safeguards Agreement operate to provide for the suspension of the app lication of the 
obligations under the GATT 1994, and may be imposed "only" where the conditions and 
circumstances listed in the relevant provisions are satisfied3. In other words, the Safeguards 
Agreement already provides a comprehensive set of provisions  as to when a Member may 
justifiably apply safeguard measures. Allowing Article XXI to apply as an exception to the 
Safeguards Agreement would not be aligned with the comprehensive nature of the 
Safeguards Agreement and would be inconsistent with the inten t to provide greater discipline 
when Members apply safeguard measures.  
4. Further, the Safeguards Agreement is a different creature from other WTO Agreements as it 
essentially provides for the suspension of GATT obligations. To layer Article XXI over and 
above the provisions of the Safeguards Agreement would require a clear intent to be distilled 
from the text of those provisions read in their proper context. This is not the case here. 
Given the sui generis nature of the Safeguards Agreement, our views are  confined to the 
Safeguards Agreement only.  
B. The Panel's jurisdiction in respect of Article XXI  
5. The Panel has jurisdiction over any Member's invocation of Article XXI in WTO dispute 
proceedings and the Panel is required to address such invocation. Th e phrase "shall address" 
in Article 7(2) of the DSU indicates that panels are "required to address the relevant 
 
1 This re quires an agreement -by-agreement analysis that starts with the text of the agreement in 
question, and entails a "thorough analysis of the relevant provisions", on the understanding that the lack of an 
express textual reference is not dispositive in and of itself (Appellate Body Report, China – Rare Earths , paras. 
5.61 – 5.63). The relationship must be "ascertained through scrutiny of the provisions concerned, read in the 
light of their context and object and purpose, with due account being taken of the over all architecture of the 
WTO system as a single package of rights and obligations, and any specific provisions that govern or shed light 
on the relationship between the provisions of different instruments." (Appellate Body Report, China – Rare 
Earths , para.  5.55).  
2 Panel Report, Dominican Republic – Safeguard Measures , para. 7.54.  
3 Article 2 of the Safeguards Agreement. The preparatory materials to the Safeguards Agreement and 
the preamble to the Safeguards Agreement confirm this.  WT/DS544/R/Add.1  
 
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  provisions in any covered agreement or agreements cited by the parties to the dispute"4. 
This means that the Panel must address the relevant pr ovisions to the dispute at hand, 
including Article XXI(b).  The plain and ordinary meaning of the DSU's provisions do not speak 
of any exceptions to the application of Articles 7(1) (which set out the Panel's terms of 
reference) and 7(2).  
C. Interpretation of Article XXI(b) – the applicable test  
6. To the extent that the non -justiciability of a claim under Article XXI(b) relies on an 
interpretation that Article XXI(b) is totally self -judging, such an interpretation should not 
apply based on th e explanation below. First, the word "it" in the phrase "it considers 
necessary" clearly refers to a "contracting party". The focus of any scrutiny therefore has to 
be from the standpoint of the invoking Member and whether that Member considers the 
action to be necessary . This phrase points to the self -judging nature of the assessment and 
indicates that a Member is allowed to determine the elements of the chapeau with a 
significant degree of subjectivity. Second , the assessment of threats to the essential s ecurity 
interests of a Member and the necessary measures in response involves judgment on the 
part of that Member and is dependent on the particular context and circumstances of that 
Member. There is necessarily a degree of subjectivity in this exercise, a nd an accompanying 
diversity of assessments that has to be respected. Third, there are many areas in the WTO 
regime where some margin of appreciation is accepted5.  
7. A higher level of deference and a significant margin of appreciation should be accorded  to a 
Member's chosen level of protection, and its assessment of risk and of the necessity of a 
measure taken for the protection of its essential security interests.  
8. Notwithstanding the above, Article XXI(b) should not be read as giving a Member entire ly 
unfettered discretion in invoking this exception. For this exception to be meaningful, a 
Member must act in accordance with the standard of good faith as set out in Article 26 of 
the Vienna Convention on the Law of Treaties6 and with the general international law 
prohibition of abuse of rights. It is also well accepted that a Member seeking to rely on an 
affirmative exception bears the burden of proof. The Member invoking Article XXI would have 
to provide its reason(s) for do ing so, by minimally explaining its course of action and 
invocation of Article XXI, bearing in mind the margin of appreciation to be accorded to 
Members on matters involving their essential security interests. The extent and degree of 
detail required is fa ct and context specific and will be informed by the specific circumstances 
surrounding the invocation, as well as the underlying security and confidentiality 
considerations.  
9. We have carefully considered the Russia – Traffic in Transit panel's approach in interpreting 
Article XXI(b)(iii) in the context of certain prohibitions on goods traffic in transit, and 
generally agree with that panel's analysis of Article XXI(b)(iii).  
III. EXECUTIVE SUMMARY OF SINGAPORE'S RESPONSES TO PANEL QUESTIONS TO 
THIRD PARTI ES 
A. Response to Question 8  
10. There are no provisions in the DSU that support a distinction between justiciable and non -
justiciable matters in relation to the measures that are the subject of the present dispute.  
 
4 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 49. 
5 For example, in the context of the SPS Agreement, the Appellate Body has recognised that "[t]he 
determination of the appropriate level of protection… is a prerogative of the Member concerned and not of a 
panel or of the Appellate Body" (Appellate Body Report, Australia – Salmon , para. 199). The Appellate Body 
also noted, in relation to the necessity of a measure taken for the protection of health under the GATT 1994, 
that "… it is undisputed that WTO Members have t he right to determine the level of protection of health that 
they consider appropriate in a given situation" (Appellate Body Report, EC – Asbestos , para. 168.).  
6 Done at Vienna, 23 May 1969, 1155 U.N.T.S. 331; 8 International Legal Materials 679.  WT/DS544/R/Add.1  
 
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  B. Response to Question 10  
11. We agre e with the panel's statements in Russia –Traffic in Transit that "[g]iven the absence 
in the DSU of any special or additional rules of procedure applying to disputes involving 
Article XXI of the GATT 1994… [the] invocation of [Article XXI(b)] of the GATT 1 994 is within 
the Panel's terms of reference for the purposes of the DSU."7  
C. Response to Question 13  
12. We agree with the panel's statements in Russia — Traffic in Transit  that "[t]he obligation of 
good faith requires that Members not use the excepti ons in Article XXI as a means to 
circumvent their obligations under the GATT 1994" and that "[i]t is therefore incumbent on 
the invoking Member to articulate the essential security interests said to arise from the 
emergency in international relations suffi ciently enough to demonstrate their veracity"8.  
D. Response to Question 14  
13. The good faith test is met when a Member demonstrates that it has in good faith, albeit 
subjectively, considered, based on information available, that there is a threat to it s essential 
security interest, and that its chosen action is necessary for the protection of its security 
interest.  
E. Response to Question 15  
14. Article XXI is an affirmative defence and the invoking Member bears the burden of proof9. 
F. Response to Que stions 16 and 17  
15. The phrase "which it considers" applies to the entire chapeau of Article XXI(b)10. 
G. Response to Question 18  
16. A panel should consider whether a Member's invocation of Article XXI is consistent with the 
principle of good faith, w hile recognising the element of self -judgment in Article XXI.  
H. Response to Question 19  
17. The Member invoking the exception bears the burden to show that it has, in good faith, 
considered, based on the information available, that the elements of Article XXI(b) are made 
out. The extent and detail required to demonstrate this is fact and context specific.  
I. Response to Question 20  
18. The subparagraphs to Article XXI(b) are exhaustive of the types of circumstances covered 
by the provision. Typical ly, phrases like "including "11 denote that a list is merely illustrative. 
Nothing in Article XXI(b) suggests that the subparagraphs are merely an illustrative list. In 
interpreting the circumstances in the subparagraphs, a panel should adopt a contextual 
approach.  
J. Response to Questi on 21  
19. A nexus between a particular subparagraph and the challenged measure is required. The 
determination of that nexus should be done in good faith, taking into account the Member's 
circumstances and concerns.  
 
7 Panel Report, Russia – Traffic in Transit , paras. 7.54 and 7.56.  
8 Panel Report, Russia – Traffic in Transit , paras. 7.133 and 7.134.  
9 As noted by the panel in Russia – Traffic in Transit , it is "incumbent on the invoking Member to 
articulate the essenti al security interests said to arise from the emergency in international relations sufficiently 
enough to demonstrate their veracity." (Panel Report, Russia – Traffic in Transit , para. 7.134.)  
10 Panel Report, Russia — Traffic in Transit , paras. 7.130 – 7.133 and 7.146.  
11 Panel Report, EC – Approval and Marketing of Biotech Products , para. 4.161.  WT/DS544/R/Add.1  
 
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  K. Response to Question 25  
20. A panel should consider whether a Member's invocation of Article XXI is consistent with the 
principle of good faith, while recognising the element of self -judgment in Article XXI.  
L. Response to Question 26  
21. A panel will need to assess if a Member has acted in  accordance with the standard of good 
faith and with the general international law prohibition on abuse of rights.  
M. Response to Question 27  
22. Factual evidence is relevant to considering the applicability of the conditions provided in the 
subparagraphs  of Article XXI(b). The extent and degree of detail required is fact and context 
specific.  
N. Response to Question 28  
23. Subparagraphs (i) to (iii) inform each other as to the overall subject matter and scope of 
applicability of Article XXI(b)12. 
O. Resp onse to Question 29  
24. Subparagraphs of Article XXI(b) are not cumulative in nature13.  
P. Response to Question 30  
25. It is inadvisable to put forward a label or prescriptive definition of "other emergency in 
international relations". We agree with th e panel's statements in the Russia — Traffic in 
Transit panel report that there is a useful "sliding scale " of circumstances that might qualify 
as an "emergency in international relations " and could include any circumstances that fall 
within the descriptio n of "heightened tension or crisis ", or "general instability engulfing or 
surrounding a state "14. We also agree that it is incumbent on the invoking Member to 
articulate the essential security interests said to arise from the emergency in international 
relations sufficiently enough to demonstrate their veracity15; and what qualifies as a 
sufficient l evel of articulation will depend on the emergency in international relations at 
issue16. The Member would also need to demonstrate that its measure is applied in good 
faith.  
Q. Response to Question 31  
26. Both Articles  XX17 and XXI(b) are affirmative defences. A  Member seeking to rely on either 
exception bears the burden of proof. With respect to measures under Article XXI, a higher 
level of deference and a significant margin of appreciation should be accorded to the WTO 
Member's chosen level of protection, its assessment of risk, and of the necessity of a 
measure taken for the protection of its essential security interests, as compared to those 
taken under Article XX. This is because Article XXI(b) contains the additional ph rase "it 
considers necessary", which is not present in Article XX.  
R. Response to Question 32  
27. Article XXI(a) is concerned with a scenario where a Member is asked to furnish information, 
the disclosure of which it considers contrary to that Party's ess ential security interest. In 
contrast, Article XXI(b) deals with the situation in which a Member takes actions which it 
considers necessary for the protection of its essential security interest. There is an element 
of subjectivity in both Article XXI(a) an d Article XXI(b) but the principle of good faith and 
the general international law prohibition of abuse of rights applies to both.  
 
12 Panel Report, Russia — Traffic in Transit , para. 7.65, 7.67 and 7.74.  
13 Panel Report, Russia – Traffic in Transit , para. 7.68.  
14 Panel Report, Russia – Traffic in Transit , para. 7.76.  
15 Panel Report, Russia – Traffic in Transit , para. 7.134.  
16 Panel Report, Russia – Traffic in Transit , para. 7.135.  
17 Appellate  Body Report, US – Wool Shirts and Blouses , p. 16 and Appellate Body Report, US – 
Shrimps , para. 121; Appellate Body Report, EC – Asbestos , paras. 115  – 116. WT/DS544/R/Add.1  
 
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  S. Response to Question 34  
28. See paragraphs 3 and 4 above.  
T. Response to Question 36  
29. If the Panel determines that the measures are safeguard measures within the meaning of 
Article XIX and the Safeguards Agreement, Article XXI of the GATT 1994 does not apply.  
U. Response to Question 37  
30. The phrase "nothing in this agreement " in Article XXI(b) should be interpreted as referring 
to the obligations under the GATT 1994. It should not be interpreted to allow Article XXI(b) 
to operate as an exception to the conditions for suspension of GATT obligations under Article 
XIX as this would render the strict conditions of Article X IX and the Safeguards Agreement 
meaningless.  
V. Response to Questions 38 and 39  
31. While the references to Article XIX in the Preamble, Articles 118 and 11.1(a) of the 
Safeguards Agreement reflect a relationship between Article XIX of the GATT and the 
Safeguards Agreement, they do not establish any textual basis for applying Article XXI of 
the GATT 1994 to the Safeguards Agreement19.  
W. Response to Question 40  
32. The general interpretative note to Annex 1A of the WTO Agreement indicates that the GATT 
1994 and the other agreements are to be considered together20. Thus, if a conflict were to 
exist between a Safeguards Agreement provision and a GATT 1994 provision, the Safeguards 
Agreement provision would prevail to the extent of the conflict. Applying t he panel's 
definition of "conflict "21, the justification of a measure under Article XXI that would otherwise 
be prohibited under the Safeguards Agreement would not give rise to a "conflict" within the 
meaning of the General Interpretative Note, since Arti cle XXI cannot be considered a 
permissive obligation. The presumption against conflict should also be borne in mind22. In 
any case, our position is that Article XXI cannot apply as an exception to the Safeguards 
Agreement.  
 
 
18 Article 1 of the Safeguards Agreement provides that the term safeguard measure "shall be 
understood to mean those measures provided for in Article XIX of GATT 1994." The Appellate Body  stated that 
Article 1 of the Safeguards Agreement "suggests that Article XIX continues in full force and effect, and, in fact, 
establishes certain prerequisites for the imposition of safeguard measures" (Appellate Body Report, Argentina – 
Footwear,  para. 83). 
19 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines) supports this 
interpretation. The question there was whether Article XX of the GATT applied to the CVA. Similar to the 
preamble to the Safeguards Agreement, the preamble  to the CVA referred to the Members’ desire to "further 
the objectives of the GATT 1994" and recognises "the importance of the provisions of Article VII of GATT 1994 
and desir[e] to elaborate rules for their application in order to provide greater uniformi ty and certainty in their 
implementation". The panel found that the language and the title to the CVA reflects a general link between 
the CVA and the GATT 1994, but it does not establish any textual link to Article XX of the GATT, and 
consequently does not  establish any affirmative textual basis for concluding that Article XX applies to the CVA 
(paras. 7.748 and 7.749).  
20 Appellate Body Report, Brazil – Desiccated  Coconut , p. 8.  
21 The panel made the following observation on the definition of "conflict" as  set out in the General 
Interpretative Note, stating that "[i]n light of the wording, the context, the object and the purpose of [the 
General Interpretative Note], we consider that it is designed to deal with (i) clashes between obligations 
contained in GA TT 1994 and obligations contained in agreements listed in Annex 1A, where those obligations 
are mutually exclusive in the sense that a Member cannot comply with both obligations at the same time, and 
(ii) the situation where a rule in one agreement prohibi ts what a rule in another agreement explicitly permits" 
(Panel Report, EC – Bananas III (Ecuador),  para. 7.159).  
22 Panel Report, Indonesia – Autos , para. 5.349.  WT/DS544/R/Add.1  
 
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  ANNEX C -10 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SWITZERLAND  
I. INTRODUCTION  
Switzerland intervenes because of its systemic interest in the correct and consistent 
interpretation and application of the provisions of the covered agreements at issue in this dispute 
and its substantial trade interest. Swi tzerland also has a particularly strong interest in the present 
dispute because it relates to the same matter  as the matter raised by Switzerland in DS556 and by 
five other WTO Members in their own disputes against the United States.  
II. THE PANEL HAS JUR ISDICTION TO REVIEW THE INVOCATION OF ARTICLE XXI(B) 
OF THE GATT 1994  
The United States claims that Article XXI(b) which it invokes is "self -judging" and therefore 
the Panel may not make findings on China's claims. Thereby, although the United States as serts 
that it does not dispute the Panel's jurisdiction, in essence it argues that there is nothing for the 
Panel to decide other than to note that the United States has invoked Article XXI(b) of the 
GATT  1994.  
Switzerland notes that there are various p rinciples and obligations included in the WTO 
covered agreements, in particular in the DSU, which confirm that the Panel has jurisdiction to review 
the invocation by the United States of Article XXI(b).  
First, Article 1.1 of the DSU provides that the r ules and procedures of the DSU apply to 
disputes brought pursuant to the consultation and dispute settlement provisions of, inter alia , the 
GATT 1994, without excluding Article XXI(b). Furthermore, neither Article XXI(b), nor any other 
provisions of the GA TT 1994 contain any particular rules on dispute settlement that would exclude 
measures from the review by WTO adjudicating bodies because a WTO Member taking those 
measures invokes Article XXI(b) of the GATT 1994.  
Second, pursuant to its terms of refere nce, this Panel must examine the matter referred to by 
China in its request for the establishment of a Panel "in the light of the relevant provisions of the 
covered agreements cited by the parties to this dispute." Article 7.2 of the DSU further emphasises  
that obligation in providing that "[p]anels shall address the relevant provisions in any covered 
agreement or agreements cited by the parties to the dispute".  
Third, that the Panel has jurisdiction to review Article XXI(b) of the GATT 1994 is further 
supported by the obligation for the Panel to make an objective assessment of the matter pursuant 
to Article 11 of the DSU, including "an objective assessment of the  facts of the case and the 
applicability of and conformity with the relevant covered agreements". It is difficult to see how the 
Panel could fulfil its mandate pursuant to Article 11 of the DSU if it were to decline to exercise the 
validly established juri sdiction and make no finding on China's claims.  
Fourth, concluding that the Panel cannot make findings on China's claims would "diminish" 
the rights of China to seek redress within the meaning of Article 23 of the DSU and to bring a dispute 
pursuant to  Article 3.3 of the DSU. It would also be inconsistent with Article 23.2(a) of the DSU as 
it would mean that, by merely invoking Article XXI(b), WTO Members would be able to unilaterally 
decide the outcome of a dispute, in place of WTO adjudicating bodies.  
Fifth, concluding that the Panel may not review the invocation of Article XXI(b) would also 
undermine one of the fundamental objectives expressed in Article 3.2 of the DSU that the dispute 
settlement system is a "central element in providing security a nd predictability to the multilateral 
trading system" and "serves to preserve the rights and obligations of Members under the covered 
agreements".  WT/DS544/R/Add.1  
 
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Sixth, accepting that a panel cannot review the complainant's claims because a WTO Member 
invokes Article XXI(b) of the GATT 1994 would disregard the "affirmative defence" nature of that 
provision  which implies that it is for the Member invoking Article XXI(b), in the present case the 
United States, to establish that the measures at issue comply with the requi rements laid down in 
Article XXI(b) of the GATT 1994.  
III. THERE IS NO OBSTACLE TO THE PANEL'S EXERCISE OF JURISDICTION DUE TO THE 
POLITICAL NATURE OF ESSENTIAL SECURITY INTERESTS  
The United States' argument that the invocation of Article XXI(b) precludes a panel from 
exercising its jurisdiction with respect to the entire dispute because of the political nature of the 
essential security interests finds no basis in the DSU. Instead, several provisions of the DSU confirm 
that a panel is required to address and rule on the claims raised by the complainant which fall within 
its terms of reference. To find otherwise would be contrary to Articles 3.2, 3.3, 7, 11, 19 and 23 of 
the DSU. It w ould be also inconsistent with the aim of the WTO dispute settlement mechanism, 
which pursuant to Article 3.7 of the DSU is to "secure a positive solution to a dispute" and would 
undermine the security and predictability of the multilateral trading system as a whole. Switzerland 
further notes that other international courts and tribunals have previously explicitly rejected an 
argument that a "political question" constitutes an obstacle to the exercise of jurisdiction.  
IV. THE INVOCATION OF ARTICLE XXI(B) OF  THE GATT 1994 IS JUSTICIABLE  
The United States claims that the invocation of Article XXI is "non -justiciable" because 
Article XXI(b) is "self -judging". According to the United States, the allegedly "self -judging" nature 
derives from the text and conte xt of Article XXI(b). That interpretation is wrong and must be 
rejected.  
A. The ordinary meaning of Article XXI(b) of the GATT 1994 taken in its context  
The United States argues that the text of Article XXI(b) of the GATT 1994 and, in particular, 
the words "which it considers" establishes the self -judging nature of that provision.  
While the words "which it considers" imply that a certain degree of discretion be granted to a 
Member pursuant to Article XXI(b), that discretion relates only to the "ne cessity" of such action. This 
follows in particular from the function of the verb "consider" which is to link the adjective "necessary" 
to the noun "measures". Thus, the wording and the grammatical structure of that provision do not 
support the proposition  that the words "which it considers" qualify the determination of the "essential 
security interests" or the elements listed in the subparagraphs of Article XXI(b).  
The United States' interpretation of Article XXI(b) disregards that the chapeau refers to action 
which the Member concerned considers necessary "for the protection of its essential security 
interests". Thus, pursuant to the chapeau, not any interests may justify an action being taken under 
Article XXI(b). Only "essential security interests" do. Furthermore, the action undertaken by a WTO 
Member must be necessary "for the protection" of that Member's essential security interests. This 
suggests that, when a Member invokes Article XXI(b), a panel needs to review whether there is a 
rational relat ionship between the action taken and the protection of the Member's essential security 
interests.  
In addition, the interpretation needs to fully take into account the subparagraphs of 
Article  XXI(b). Subparagraphs (i) to (iii) set out specific requirem ents that must be objectively met 
by a measure to be justified under Article XXI(b). It is clear from the wording and the grammatical 
structure of Article XXI(b) that the three subparagraphs all relate to the word 'action' in the chapeau 
and are not part o f the relative clause "which it considers necessary for the protection of its essential 
security interests". It demonstrates that the phrase "which it considers" does not qualify the three 
subparagraphs. This understanding is fully supported by the Spanish  and French versions of 
Article  XXI(b).  
Furthermore, the interpretation put forward by the United States must be rejected as it would 
render subparagraphs (i) to (iii) inutile . Indeed, should a WTO Member enjoy absolute discretion WT/DS544/R/Add.1  
 
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  with respect to actio ns that it may take for protecting its essential security interests, there would 
have been no need to include in the text of Article XXI(b) of the GATT 1994 the conditions laid down 
in subparagraphs (i) to (iii).  
Switzerland submits that the immediate context  provided by the other paragraphs of 
Article  XXI as well as the broader context  provided by Article XX of the GATT 1994 and the provisions 
of other WTO agreements, including in particular Articles 7.1, 7.2, 11 and 23 of the DSU, support  
the interpre tation that Article XXI(b) is reviewable by a panel.  
B. The object and purpose of the GATT 1994  
The object and purpose of the GATT 1994 further supports the understanding that 
Article  XXI(b) is subject to review by WTO panels and the Appellate Body. In deed, the possibility to 
completely shield a trade -restrictive measure from any scrutiny by merely raising Article XXI(b) 
would go against the security and predictability of the multilateral trading system established by the 
GATT 1994 and the WTO Agreement  contrary to the object and purpose of the GATT 1994 as 
expressed in the third recital of its preamble.  
C. The negotiating history confirms that a panel may interpret and review the 
application of Article  XXI(b) of the GATT 1994  
The United States clai ms that the negotiating history of Article XXI(b) of the GATT confirms 
that the Panel may not interpret Article XXI of the GATT 1994 and review its application. The 
United  States' arguments appear to be based on a selective reading of some of the documents  of 
the negotiating history, taken out of their context.  
In Switzerland's view, the discussions of the ITO negotiating committee to which the 
United  States refers confirm that the drafters did not envisage Article XXI(b) as a self -judging 
provision.  
The negotiating history also offers no support to the United States' argument that a 
non-violation complaint is the only remedy available in case the Member taking the measure invokes 
Article XXI(b).  
V. THE PANEL'S SUBSTANTIVE ANALYSIS  
Once the Panel confirms its jurisdiction and that there is no obstacle to the exercise of its 
jurisdiction, the Panel should examine the dispute on its merits. Switzerland considers that 
Article  XXI, being an affirmative defence, requires the Panel to first start its review by addressing 
the claims raised by China.  
The Panel should then, before entering into an analysis of the United States' defence,  examine 
the relationship between Article XXI of the GATT 1994 and the claims raised under the Agreement 
on Safeguards and the GATT 1994. It is only to the extent that the Panel concludes that 
Article  XXI(b) is available as a defence with respect to the cl aims at issue that the Panel should 
examine that defence.  
A. The applicability of the Agreement on Safeguards to the measures at issue  
Switzerland agrees with China that the measures at issue fall within the scope of the 
Agreement on Safeguards and ar e inconsistent with several provisions of that Agreement.  
1. Whether the measures at issue constitute safeguard measures falling within the scope of the 
Agreement on Safeguards has to be determined by the Panel as part of its objective assessment of 
the m atter 
The legal characterization of a measure for the purposes of determining the applicability of an 
agreement is not an issue to be decided unilaterally by the Member taking the measure. It is an 
issue that must be determined objectively. Article 11 of the DSU requires a panel to undertake an 
"objective assessment of the matter before it, including an objective assessment of the facts of the 
case and the applicability of  and conformity with  the relevant covered agreements". It follows that, WT/DS544/R/Add.1  
 
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  as part of  its objective assessment, a panel must examine whether the provisions of the covered 
agreements invoked by the complainant as the basis for its claims are "applicable" to the challenged 
measures.1  
The Panel's duty to conduct an "objective assessment  of the matter" implies that the Panel is 
not bound by the way the Member concerned characterizes the measure in its municipal law. Rather, 
"a panel must assess the legal characterisation for purposes of the applicability of the relevant 
agreement on the b asis of the 'content and substance' of the measure itself".2 More specifically, a 
panel is called upon "to assess the design, structure, and expected operation of the measure as a 
whole".3 For that purpose, "a panel must identify all the aspects of the m easure that may have a 
bearing on its legal characterization, recognize which of those aspects are the most central to that 
measure, and, thereby, properly determine the disciplines to which the measure is subject".4  
2. The measures at issue constitute s afeguard measures falling within the scope of the 
Agreement on Safeguards  
In order to constitute a safeguard measure, a measure must present two constituent features. 
First, the measure must suspend, in whole or in part, a GATT obligation or withdraw or modify a 
GATT concession. Second, the suspension, withdrawal, or modification in question must be designed 
to prevent or remedy serious injury to the Member's domestic industry caused or threatened by 
increased imports of the subject product.5  
The measures at issue are the import adjustments imposed by the United States on imports 
of certain steel and aluminium products which, among others, consist of additional import duties 
exceeding the bound rate provided for in the United States' Schedule of C oncessions. As 
demonstrated by the Steel and Aluminium Reports of the USDOC, the Presidential Proclamations 
imposing the measures as well as countless statements of the US officials, those measures have 
been imposed in order to revive the US steel and alum inium industries and protect them from the 
harm caused by increasing imports. It follows that the measures at issue suspend at least one GATT 
obligation or withdraw or modify one GATT concession and are clearly designed to prevent or remedy 
serious injury to the US domestic steel and aluminium industries. Thus, those measures present 
both constituent features of a safeguard measure and fall within the scope of the Agreement on 
Safeguards. The fact that the United States has not adopted those measures pursua nt to its domestic 
safeguard legislation or has not notified them to the WTO as safeguard measures does not change 
that conclusion.  
This is further confirmed by certain additional features of those measures such as their 
extraordinary character, their complementary relationship with trade remedy measures, their focus 
on the "import" of the products concerned and the fact that they have  been adopted pursuant to a 
procedure which is very similar to the procedure followed in US safeguard investigations.  
B. The relationship between Article XXI(b) of the GATT 1994 and the Agreement 
on Safeguards  
The United States argues that Article XXI  of the GATT 1994 is a defense to alleged breaches 
of the Agreement on Safeguards. Unlike other covered agreements, the Agreement on Safeguards 
does not, however, include any direct or indirect reference to Article XXI of the GATT 1994. There 
is, therefore , no basis for arguing that a defence under Article XXI(b) of the GATT 1994 should be 
available for violations of the Agreement on Safeguards.  
Furthermore, contrary to what the United States argues, none of the general references to 
the GATT included in the Agreement on Safeguards suggests that Article XXI(b) should be available 
as a defence for measures inconsistent with the Agreement on Safeguards.  
 
1 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.31.  
2 Appellate Body Repo rt, Indonesia – Iron or Steel Products , para. 5.32.  
3 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  
4 Appellate Body Report, Indonesia – Iron or Steel Products , para. 6.6.  
5 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  WT/DS544/R/Add.1  
 
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Article XXI can be invoked as a defence with respect to obligations assumed by WTO Members 
under t he GATT 1994. It cannot, however, be invoked as a defence with respect to another GATT 
provision, such as Article XIX, which establishes a right to impose safeguard measures which 
derogate  from the obligations under the GATT 1994, provided that certain con ditions and 
circumstances listed in that provision and in the Agreement on Safeguards are satisfied. Given the 
relationship between Article XIX of the GATT 1994 and the Agreement on Safeguards, it logically 
follows that if Article XXI is not available as a  defence for measures that fall within the scope of 
Article XIX (and are inconsistent with that provision), it is neither available as a defence for measures 
that are inconsistent with the Agreement on Safeguards.  
Finally, an interpretation allowing WT O Members to justify impermissible safeguard measures 
under Article XXI would, in fact, render Article 11.1(a) of the Agreement on Safeguards inutile . 
C. General remarks on the United States' defence under Article XXI(b) of the 
GATT 1994  
Switzerland notes that, although the United States invokes Article XXI(b) of the GATT 1994, 
it does not address any of the substantive requirements imposed by that provision. The United States 
does not even identify under which subparagraph of Article XXI( b) it submits its defence.  
Since Article XXI(b) constitutes an affirmative defence, the burden of proof rests on the 
respondent, the United States, to show that the conditions set out in Article XXI(b) are met. 
Switzerland notes that so far, the Unite d States has failed to meet its burden.  
 WT/DS544/R/Add.1  
 
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  ANNEX C -11 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TÜRKIYE  
1  INTRODUCTION  
1.1.  This integrated executive summary contains the arguments presented by the Republic of 
Turkey (Turkey) in its third -party written submissions, oral statements, and responses to t he Panel's 
questions in the following disputes parallel to United States – Additional Duties on Steel and 
Aluminium  (DS564) : DS544, 547, 548, 552, 554, and 556.  
1.2.  Turkey agrees with the complainants in the parallel disputes that the Section 232 measur es 
imposed by the United States on steel and aluminium articles are safeguard measures within the 
meaning of Article XIX of the GATT 1994 and the Agreement on Safeguards. Moreover, Turkey 
believes that the Panels in these disputes should examine the compla inants' claims under Article XIX 
and the Agreement on Safeguards before  addressing the United States' defence under Article XXI. 
As Turkey has consistently argued in these disputes as well as in DS564, matters falling under 
Article  XIX are outside the scop e of Article XXI. Put simply, Article XXI does not apply to safeguard 
measures and cannot justify violations of WTO safeguards disciplines. The respective scopes of 
application of Articles XIX, XX and XXI are mutually exclusive.  
1.3.  With respect to Arti cle XXI, it is impossible to overstate the systemic importance of this dispute. 
The United States' position is that a WTO Member can take any trade -related action that it wishes, 
for any protectionist purpose that it wishes, label it as a "national securit y" measure, invoke allegedly 
unlimited discretion, and by doing so escape any and all disciplines of WTO law. This position, if 
sustained by the Panel, would create a large loophole within the WTO legal system that would enable 
all WTO Members to escape th eir WTO obligations at will. This would render the rights of other WTO 
Members an empty shell, place them entirely at the discretion of an importing Member, and would 
reduce the entire multilateral trading system to a nullity.  
1.4.  It is, therefore, vita l that this Panel approaches Article XXI in a manner that preserves the 
balance of rights and obligations of the WTO Members under the covered agreements. Turkey fully 
supports the need to protect the right of WTO Members to take genuine national security measures, 
for which they should enjoy an appropriate margin of deference. But, at the same time, there must 
continue to be meaningful WTO disciplines on domestic trade measures. There is no such balance in 
the United States' position.  
1.5.  The United Stat es' entire defence in this dispute is based on the national security exception in 
Article XXI(b) of the GATT 1994. The United States' principal argument is that, as soon as the 
defendant invokes this provision, a WTO panel must lay down its tools, no matte r how WTO -
inconsistent the challenged measure is or how unreasonable the invocation of Article XXI might be. 
According to the United States, in these circumstances, a dispute becomes "inherently political in 
nature", and, therefore, inappropriate for any r eview in the WTO.  
1.6.  Turkey notes that, beyond the fact that its approach to Article XXI is manifestly unreasonable 
on substance, the United States' approach to Article XXI is somewhat contradictory in procedural 
terms. On the one hand, the United Stat es does not dispute that panels have jurisdiction over such 
disputes within the meaning of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), and may receive submissions from the parties and third parties. On 
the other ha nd, the United States calls the invocation of Article XXI "non -justiciable" or "self -
judging". The United States argues that each WTO Member has the right to determine, for itself, 
what it considers necessary for protecting its essential security interests .  
1.7.  To Turkey, these two positions taken together constitute an elaborate empty formality. The 
Panel has jurisdiction, but cannot effectively exercise any meaningful review. This makes no sense 
to Turkey and clearly runs counter to the objective of th e WTO dispute settlement system to act as 
a central element in providing security and predictability to the multilateral trading system.  WT/DS544/R/Add.1  
 
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  1.8.  The United States also tries to divert attention from the major loophole in the WTO disciplines 
that its approach  would create, by arguing that Members can rely on non -violation claims to address 
the situation. This, of course, misses the point. WTO Members are entitled to expect WTO -consistent 
behaviour by all other WTO Members. Under the approach advocated by the U nited States, the 
boundary between WTO -consistent and WTO -inconsistent behaviour essentially becomes irrelevant. 
This cannot be right.  
1.9.  In Section 2, Turkey summarises its legal arguments regarding the United States' defence 
under Article XXI of the GATT 1994, as well as the correct interpretation of this provision. In this 
Section, Turkey also explains that Article XXI cannot serve as a valid exception to "economic 
emergencies", like the measures at issue in these disputes. In Section 3, Turkey summa rises its 
conclusion.  
2  THE UNITED STATES' DEFENCE UNDER ARTICLE XXI(B) OF THE GATT 1994 IS 
MISPLACED AND SHOULD BE REJECTED  
2.1  The United States' defence under Article XXI has important consequences  
2.1.  The United States does not engage with the complainants' detailed explanations that the 
United  States' import measures on steel and aluminium constitute safeguard measures. Rather, the 
United States' central argument is that the measures at issue were taken under Article XXI(b), which 
may serve as a defence to claims under the Agreement on Safeguards. Therefore, should the Panel 
agree that the United States' Article XXI defence fails, it should immediately find in favour of the 
complainants, including Turkey.  
2.2.  The United States' arguments under  Article XXI are very generic. First, the United States 
invoked Article XXI(b) in general terms, without specifying which sub -paragraph of this provision it 
considers to be relevant. In Turkey's view, the Panel could reject the United States' invocation on  
this basis alone. A Member invoking an exceptions provision must specify in detail which particular 
part of that provision it is relying on, for instance, a particular sub -paragraph. It would similarly be 
insufficient if a WTO Member sought to justify, fo r instance, an import ban by invoking "Article XX 
of the GATT 1994", without specifying which of the sub -paragraphs of Article XX it is relying on. In 
the prior disputes where respondents took this approach under Article XX, the Appellate Body found 
this d efence to be "patently underdeveloped".1  
2.3.  In addition, the United States provides no facts in support of this defence, for instance, to 
argue that the facts at hand reflect an "emergency in international relations" within the meaning of 
Article XXI( b)(iii) or to substantiate its implicit assertion that "essential security interests" of the 
United States are at issue. Of course, the United States bears the burden of proof under Article XXI 
and must provide both argument and evidence to successfully in voke this provision. Given the 
absence of any relevant evidence adduced by the United States, should the Panel reject the United 
States' view of the self -judging nature of the entirety of Article XXI(b), it should also immediately 
reject the United States'  defence.  
2.2  The overview of Turkey's interpretation of the chapeau  and sub -paragraphs of 
Article  XXI 
2.4.  Turkey turns to its views on the correct interpretation of Article XXI of the GATT 1994.  
2.5.  Article XXI(b) consists of a chapeau  and of three sub -paragraphs. The chapeau  contains the 
phrase "any action which it considers necessary". This phrase confers a margin of discretion on the 
invoking Member, in the choice of measures that protect ess ential security interests. There is also 
certain inherent flexibility and discretion in the articulation of a Member's "essential security 
interests", in the light of the nature of the concept of security interests.  
2.6.  Nevertheless, the discretion that  informs the chapeau  of Article XXI(b), even if wide, cannot 
be boundless.  
 
1 Appellate Body Report, Thailand – Cigarettes (Philippines) , paras. 178 -179. WT/DS544/R/Add.1  
 
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  2.7.  First, the term "considers" cannot mean that a Member is entirely free to adopt any measures, 
including measures that are manifestly unrelated to any conceivable security int erests or that are 
manifestly unable to serve any security purpose. In prior decisions of WTO panels and the 
Appellate  Body, even  very permissive provisions have been interpreted to include, at least, some 
residual objective standard.  
2.8.  As an example,  consider Article 3.7 of the DSU, which states that a Member is free to "exercise 
its judgment" whether engaging in WTO dispute settlement would be "fruitful". The expression 
"exercise its judgment" is, for all practical purposes, synonymous with "consider ", and the subject 
matter would appear to be naturally suited to very wide Member discretion. Nevertheless, panels 
and the Appellate Body have never considered this provision to grant unfettered discretion  to a 
Member. Rather, they have emphasized that Mem bers are " largely  self-regulating"2 – not entirely  
self-regulating – and that Members' judgment "is not entirely unbounded".3 The "bound" is, for 
instance, whether that Member has previously waived its right to resort to a dispute settlement 
process, thr ough an explicit and considered decision.4   
2.9.  Second, by including the term "essential" before "security interests", the drafters clearly 
intended to limit the discretion emanating from the phrase "it considers" to situations of particularly 
serious matters of national security.5 
2.10.   Third, Article XXI(b) contains three sub -paragraphs that qualify  the chapeau . These sub -
paragraphs qualify the measures  (action) that can be taken pursuant to the chapeau . This 
qualification consists in either setting  out a particular subject matter  to which those measures must 
be related (e.g. fissionable materials or derivates6) or by describing the time period  in which those 
measures must be taken (time of war or other emergency in international relations7). 
2.11.   Compliance with the three sub -paragraphs is not left to discretion of the invoking Member . 
These qualifying phrases are open to a fully objective, multilateral review by a WTO panel, pursuant 
to the "objective assessment" requirement in Article 11 of the DSU.8  This is, in particular, because 
the discretion -granting phrase "which it considers" refers only to the necessity of the measure under 
the chapeau , not also to the three sub -paragraphs.  
2.12.   Turkey believes that its interpretation of the chapeau  and the sub -paragraphs of Article XXI(b) 
is well grounded in the principles of treaty interpretation set out in Articles 31 to 33 of the Vienna 
Conve ntion. The chapeau  and the sub -paragraphs are separate, and impose separate requirements. 
In the Spanish language version of Article XXI, this separation is further underscored by a comma 
after the chapeau , before the word " relativas ", which introduces eac h of the sub -paragraphs and 
drives a further wedge between the chapeau  and the three sub -paragraphs . 
2.13.   Next, some of the internal documents of the United States' delegation from the period of 
GATT  negotiations, attached as exhibits to the United State s' first written submissions, illustrate how 
Article XXI would  read if the term "considers" indeed were to extend  to the sub -paragraphs. It would 
read: " which it considers necessary  for the protection of its essential security interests and to relate 
to …" or "which it may consider to relate to ". 
2.14.   These documents reveal that the United States' delegation members were keenly aware of 
the important difference each phrase would have for the operation of Article XXI. The delegation 
member who proposed the  "to relate to" clause intended precisely to create an "independent clause" 
that would make the sub -paragraphs equally "self -judging" as the chapeau . The other delegation 
members understood this consequence, and this is precisely why they rejected the prop osal. They 
instead wished to limit the "consider" discretion to the chapeau  and not to permit a "completely open 
escape from the Charter" (and the GATT 1947).  
 
2 Appellate Body Report, Peru – Agricultural Products , para. 5.18. Emphasis added.  
3 Appellate Body Report, Peru – Agricultural Products , para. 5.19.  
4 Appellate Body Report, EC – Bananas III (21.5 II – US), para. 217.  
5 Panel Report, Russia — Traffic in Transit , para. 7.130.  
6 Article XXI(b)(i).  
7 Article XXI(b)(iii).  
8 Panel Report, Russia — Traffic in Transit , paras. 7.82, 7.100.  WT/DS544/R/Add.1  
 
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  2.15.   These internal discussions within the United States' delegation are explained in greater d etail 
in a comprehensive treatise relied on also by Russia – Traffic in Transit  panel.9 
2.16.   The United States' view is also at odds with the principle of effective treaty interpretation. 
Under the United States' "self -judging" approach, there is no pur pose to the carefully drafted 
language of the three sub -paragraphs.10   
2.17.   The United States also gives too much credence to the views of some GATT Contracting Parties 
that, during various GATT discussions, allegedly endorsed the self -judging nature of Article XXI. In 
Russia — Traffic in Transit , the panel found that no co mmon position of GATT and WTO Members on 
this issue existed.11 The views cited by the United States thus do not constitute a subsequent 
agreement within the meaning of the Vienna Convention and have no special legal relevance for the 
interpretation of Art icle XXI.  
2.18.   Similarly, the United States inaccurately relies on the GATT Contracting Parties' Decision in 
the 1949 US – Export Restrictions dispute between the United States and Czechoslovakia as a 
"subsequent agreement". The subject matter of the Decision was not the interpretation  of 
Article  XXI(b), and it, therefore, cannot be an agreement "bearing specifically" upon the 
interpretation of t his provision.12 Moreover, the Decision was not taken unanimously or by 
consensus. Hence, there was no " agreement " among all Contracting Parties.  
2.19.   Finally, the United States' "self -judging" theory is also contradicted by the negotiating history. 
A consistent theme running through all the negotiating history documents is the recognition by all 
intervening delegations that some balance  had to be found between, on the one hand, some 
reasonable discretion to be afforded to the regulating Member, and, on the other hand, objective, 
reviewable elements to limit that discretion and prevent it from destroying the entire legal 
framework. The debate about how to strike this proper balance is discernible at all phases of the 
negotiations, both among  Members' dele gations and within  the United States' delegation itself. It is 
simply not credible for the United States to argue that, after these lengthy negotiations about that 
important balance, the drafters ultimately opted for a 100 per cent one -sided, no -questions -asked 
discretion and a completely self -judging provision.13   
2.3  Article XXI of the GATT 1994 does not apply to "economic emergencies"  
2.20.   In Turkey 's view, Article XXI does not apply to the measures at issue in these disputes. These 
measures are saf eguard measures, which are instead disciplined by WTO safeguard rules.  
2.21.   Article XXI is one of many exceptions, carve -out provisions, and escape clauses in the 
GATT  1994. Each of these exceptions, carve -outs and escape clauses addresses distinct matters . 
This is important. One of the fundamental flaws of the United States' position is to ignore the fact 
that Article XXI does not address emergency situations of an economic  nature. The drafters assigned 
to Article XIX economic "emergency ac tion" in situations concerning "imports of particular products", 
and confined Article XXI to a foreign -policy dimension, in particular to diplomatic crises, military 
conflicts, and closely related matters. This was also the conclusion of the panel in Russi a – Traffic in 
Transit .14 
2.22.   This distinction between the issues of foreign policy addressed in Article XXI, on the one hand, 
and "economic emergencies" addressed by WTO safeguard rules is further reflected in Article 11.1 
of the Agreement on Safeguar ds. This provision draws a distinction between "emergency action[s] 
on imports … as set forth in Article XIX of GATT 1994" (Article 11.1(a)), and "measures sought, 
taken or maintained by a Member pursuant to provisions of GATT 1994 other than Article XIX " 
(Article 11.1(c)). The first category, of course, encompasses safeguard measures, whereas the 
 
9 See Kenneth J. Vandeveld e, The First Bilateral Investment Treaties: U.S. Postwar Friendship, 
Commerce, and Navigation Treaties , (Oxford University Press 2017), pp. 145 -154. Exhibit TUR -4. 
10 Appellate Body Report, US – Gasoline , p. 20.  
11 See Panel Report, Russia — Traffic in Transit , para. 7.80, Appendix.  
12 See, inter alia , Appellate Body Report, US – Clove Cigarettes , para. 265.   
13 See, inter alia , Second Session of the Preparatory Committee of the United Nations Conference on 
Trade and Employment, Verbatim Report, E/PC/T/ A/PV/33, 24 July 1947, pp. 20 -21. 
14 Panel Report, Russia — Traffic in Transit , paras. 7.76 and 7.133.  WT/DS544/R/Add.1  
 
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  second category refers to measures other than safeguard measures, for example, Article XXI 
measures.  
2.23.   This distinction is important because Article 11 ties  each category to different disciplines. For 
safeguard measures, Article 11.1(a) stipulates that a Member shall not "take or seek" these 
measures, unless they conform with the provisions of Article XIX applied in accordance with the 
Agreement on Safeguards . In contrast, for other measures (including those protecting national 
security), Article 11.1(c) establishes "provision[s] of GATT 1994 other than Article XIX " as the legal 
benchmark of WTO consistency. It is difficult to imagine how these clearly demarca ted two sets of 
disciplines could apply to a single measure. Equally, it is not clear why the drafters would distinguish 
between these two categories of measures, each subject to a separate set of disciplines, if a measure 
could in any event fall under bot h categories.  
2.24.   Whether a measure falls under the scope of Articles 11.1(a) or 11.1(c) must be determined 
objectively  by analysing the design, structure and expected operation of the measure, in particular 
whether the measure presents the constituent features of a safeguard measure within the meaning 
of Article XIX, as clarified by the Appellate Body in Indonesia – Iron or Steel Products .15 This objective 
assessment is required by Article 11 of the DSU.  
3  CONCLUSION  
3.1.  For the above reasons, Turke y considers that:  
• The measures at issue fall under Article XIX and the Agreement on Safeguards;  
• The Panel should begin its analysis with the claims under Article XIX and the Agreement 
on Safeguards, rather than with Article XXI;  
• In any event, the United S tates' defence under Article XXI should be rejected.  
 
 
15 Appellate Body Report, Indonesia — Iron or Steel Products , para. 5.60.  WT/DS544/R/Add.1  
 
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  ANNEX C -12 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE* 
1. INTRODUCTION  
1. Mr. Chairperson, distinguished Members of the Panel, Ukraine welcomes the opportunity to 
express its views to the Panel as a Third Party in the current proceedings.  
2. Ukraine has a systemic interest in a proper and consistent interpretation of the provisions of 
the World Trade Organization ("WTO") covered agreements, therefore in its oral statement Ukraine 
is not commenting on the merits of the claims and the defences  raised by the parties to this dispute, 
but rather focuses on some key issues relating to the order of analyses and application of Article XXI 
of the General Agreement on Tariffs and Trade 1994 ("GATT 1994").  
2. JURISDICTIONAL ISSUES OF ARTICLE XXI OF THE GATT 1994  
3. The United States in its first written submissions or oral statements does not address any of 
the claims raised by the complainants. The United States focuses only on Article XXI(b) of the 
GATT  1994 stating that it is self -judging and its invo cation is non -justiciable.  
4. The United States submits that the adjustment measures on imports of steel and aluminium 
constitute national security action justified under Article XXI of the GATT 1994. In the United States' 
view, the measures at issue cann ot be reviewed by this Panel which should limit its findings to noting 
that the United States has invoked Article XXI(b) of the GATT 1994, given that Article XXI(b) is self -
judging.  
5. Ukraine believes that the useful guidance for the Panel can be found in  the Understanding on 
rules and procedures governing the settlement of disputes ("DSU"). Article 7.2 of the DSU states 
that "panels shall address the relevant provisions in any covered agreement or agreements cited by 
the parties to the dispute" in order t o make "an objective assessment" of the case under Article 11 
of the DSU.  
6. Ukraine is of the opinion that jurisdictional question under Article XXI of the GATT 1994 should 
not be a matter of a panel's analysis in any further disputes . Without repetition of the findings in 
Russia – Traffic in Transit , Ukraine believes that a panel may interpret Article XXI(b) of the 
GATT  1994 and review the reliance on this provision. It means that Article XXI(b) of the GATT 1994 
is justiciable in the same manner as any ot her provision of the WTO covered agreements.  
7. Ukraine would like to emphasise that the Panel in Russia – Traffic in Transit  made a very 
important and welcome contribution by rejecting arguments that the panel has no jurisdiction to 
review invocation of Article XXI of the GATT 1994 and therefore by confirming that Article XXI(b)(iii) 
is within the Panel's terms of reference for the purposes of the DSU. 1 
8. There is therefore no need for a Panel to examine the issue of justiciability of Article XXI(b)(iii) 
of the GATT 1994 not only in this particular case, but in general.  In Ukraine's view, this conclusion 
is constant.  
3. STANDARD OF REVIEW  
9. Ukraine would like to present its views on the proper order of analysis in reviewing the 
Unite d States'  reliance on "security exceptions" provision.  
10. Taking into account the special nature of "security exceptions" provision, Ukraine wishes to 
emphasize that the fact that the text of Article XXI(b) expressly states that it is for a Member to 
 
* Ukraine requested that its written submission is used as its integrated execu tive summary.  
1 Panel Report, Russia – Traffic in Transit , paras. 7.56 and 7.104.  WT/DS544/R/Add.1  
 
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  decide what a ction it considers necessary for protecting its essential security interests does not mean 
that a Member enjoys total discretion.  
11. In Ukraine's view, a panel has to examine whether (i) the interests or reasons advanced by a 
defendant for imposing the m easures fall within the scope of the phrase "its essential security 
interests"; and whether (ii) the measures are directed at safeguarding a defendant Member's 
security interests, meaning that there is a rational relationship between the action taken and t he 
protection of the essential security interest at issue.  
12. That means that a defending Member must show and a panel must review that, taking into 
account the structure, content and design of the measure, there is a rational relationship between 
the ac tion taken and the protection of the essential security interest at issue.  
13. Due to the exceptional features of the disputes involving the "security exceptions" provisions, 
Ukraine notes that it is important that the Panel considers each invocation caref ully, in light of the 
particular circumstances of the disputes before it.  
4. CONCLUSION  
14. This concludes our oral statement. Ukraine thanks the Panel for its consideration of Ukraine's 
views.  
 
__________