WT/DS556/R  
 
9 December  2022 
(22-9151) Page: 1/94 
  Original: English  
 
  
UNITED  STATES  – CERTAIN MEASURES ON STEEL AND ALUMINIUM 
PRODUCTS  
REPORT  OF THE PANEL  
 
 WT/DS556/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  13 
1.1   Complaint by Switzerland  ................................ ................................ ............................ 13 
1.2   Panel establishment and composition  ................................ ................................ ............ 13 
1.3   Panel proceedings  ................................ ................................ ................................ .......14 
1.3.1    General  ................................ ................................ ................................ .................. 14 
1.3.2    Request for the substantive meetings of the Panel to be open to the public  ..................... 14 
1.3.3    Request for enhanced third -party rights  ................................ ................................ .....15 
1.3.4    Relationship with the other disputes where the same three persons act as panelists ......... 16 
1.3.5    Impact of the COVID -19 pandemic on the Panel proceedings  ................................ ........ 17 
1.3.5.1    Filing of written submissions ................................ ................................ ................... 17 
1.3.5.2    Scheduli ng of the second substantive meeting of the Panel with the parties  ................. 17 
1.3.5.3    Use of a virtual meeting platform for the second substantive meeting of the Panel  
with the parties  ................................ ................................ ................................ ................. 19 
1.3.5.4    Impact  on coordination with the other disputes where the same three persons act as 
panelists  ................................ ................................ ................................ ........................... 19 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 20 
2.1   Section  232 and the United  States Department of Commerce reports on steel and  
aluminium  ................................ ................................ ................................ ......................... 20 
2.1.1    Section  232 ................................ ................................ ................................ ............ 21 
2.1.2    The Steel Report  ................................ ................................ ................................ ......22 
2.1.2.1    Initiation and investigation process  ................................ ................................ ......... 22 
2.1.2.2    Product scope  ................................ ................................ ................................ .......23 
2.1.2.3    Findings and recommendations by the US Secretary of Commerce  .............................. 23 
2.1.3    The Aluminium Report  ................................ ................................ .............................. 25 
2.1.3.1    Initiation and investigation process  ................................ ................................ ......... 26 
2.1.3.2    Product scope  ................................ ................................ ................................ .......26 
2.1.3.3    Findings and recommendations by the US Secretary of Commerce  .............................. 26 
2.1.4    Presidential Pro clamations  ................................ ................................ ........................ 28 
2.2   Measures at issue  ................................ ................................ ................................ .......29 
2.2.1    The "import adjustment measure" on steel products  ................................ .................... 32 
2.2.1.1    Additional import duties  ................................ ................................ ......................... 32 
2.2.1.2    Country exemptions  ................................ ................................ .............................. 33 
2.2.1.3    Import quotas  ................................ ................................ ................................ ......33 
2.2.1.4    Product exclusions  ................................ ................................ ................................ 34 
2.2.2    The "import adjustment measure" on aluminium products  ................................ ............ 34 
2.2.2.1    Additional import duties  ................................ ................................ ......................... 34 
2.2.2.2    Country exemptions  ................................ ................................ .............................. 35 
2.2.2.3    Import quotas  ................................ ................................ ................................ ......36 
2.2.2.4    Product exclusions  ................................ ................................ ................................ 36 
2.2.3    Section  232 as "repeatedly" interpreted  ................................ ................................ ......36 WT/DS556/R  
 
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  2.2.4    Ongoing use of Section  232 ................................ ................................ ...................... 37 
2.3   Measures amended, modified, or replaced after the establishment of the Panel  .................. 37 
3   PARTIES' REQUESTS FOR FINDINGS AND  RECOMMENDATIONS  ................................  38 
4   ARGUMENTS OF THE PARTIES  ................................ ................................ ...................  40 
5   ARGUMENTS OF THE THIRD PARTIES  ................................ ................................ ........  40 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 40 
6.1   Article  XIX of the GATT  1994 and the Agreement on Safeguards  ................................ ......41 
6.2   Article  XXI(b) of the GATT  1994 ................................ ................................ ................... 42 
6.3   Appendices  ................................ ................................ ................................ ................ 44 
7   FINDINGS  ................................ ................................ ................................ .................  44 
7.1   Mandate under the DSU  ................................ ................................ .............................. 44 
7.2   Order of analysis  ................................ ................................ ................................ ........ 46 
7.3   Terms of reference and measures at issue  ................................ ................................ .....47 
7.3.1    Introduction  ................................ ................................ ................................ ............ 47 
7.3.2    Additional duties on derivative steel and aluminium products and corresponding  
country exemptions  ................................ ................................ ................................ ............ 47 
7.3.3    Exclusion of imports of steel and aluminium products from Canada and Mexico from the 
additional duties  ................................ ................................ ................................ ................ 50 
7.3.4    Changes to the additional import duty for steel products from Türkiye  ............................ 51 
7.3.5    Conclusion  ................................ ................................ ................................ .............. 51 
7.4   Article  II:1 of the GATT  1994 ................................ ................................ ....................... 52 
7.4.1    Introduction  ................................ ................................ ................................ ............ 52 
7.4.2    Additional duties on steel and aluminium products  ................................ ....................... 53 
7.4.3    Additional duty on steel products from Türkiye  ................................ ............................ 57 
7.4.4    Additional duties on derivative st eel and aluminium products  ................................ ........ 58 
7.4.5    Conclusion  ................................ ................................ ................................ .............. 59 
7.5   Article  I:1 of the GATT  1994 ................................ ................................ ........................ 60 
7.5.1    Introduction  ................................ ................................ ................................ ............ 60 
7.5.2    Country exemptions for steel and aluminium products  ................................ .................. 61 
7.5.2.1    Australia, Argentina, Brazil, and the Republic of Korea  ................................ ............... 61 
7.5.2.2    Canada and Mexico  ................................ ................................ ............................... 62 
7.5.3    Country exemptions for derivative steel and aluminium products  ................................ ...63 
7.5.4    Conclusion  ................................ ................................ ................................ .............. 63 
7.6   Article  XI:1 of the GATT  1994 ................................ ................................ ...................... 64 
7.6.1    Introduction  ................................ ................................ ................................ ............ 64 
7.6.2    Import quotas for steel and aluminium products  ................................ .......................... 65 
7.6.3    Conclusion  ................................ ................................ ................................ .............. 65 
7.7   Article  X:3 of the GATT  1994 ................................ ................................ ....................... 65 
7.8   Article  XIX of the GATT  1994 and the Agreement on Safeguards  ................................ ......66 
7.8.1    Introduction  ................................ ................................ ................................ ............ 66 WT/DS556/R  
 
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  7.8.2    Interpretation of Article  XIX of the GATT  1994 and the Agreement o n Safeguards in 
accordance with Article  3.2 of the DSU  ................................ ................................ ................. 66 
7.8.3    Assessment of the measures at issue  ................................ ................................ ......... 73 
7.8.4    Conclusion  ................................ ................................ ................................ .............. 78 
7.9   Article  XXI(b) of the GATT  1994 ................................ ................................ ................... 79 
7.9.1    Introduction  ................................ ................................ ................................ ............ 79 
7.9.2    Interpretation of Article  XXI(b) of the GATT  1994 in accordance with Article  3.2 of  
the DSU  ................................ ................................ ................................ ............................ 79 
7.9.3    Assessment of the measures at issue  ................................ ................................ ......... 87 
7.9.4    Conclusion  ................................ ................................ ................................ .............. 93 
8   CONCLUSIONS AND RECOMMENDATION  ................................ ................................ ... 93 
 
 
  WT/DS556/R  
 
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  LIST OF APPENDICES  
Contents  Page  
Appendix  A Materials submitted by the parties on Uruguay Round negotiations of the 
Agreement on Safeguards  4 
Appendix  B Materials submitted by the parties on the interpretation of Article  XXI(b) of the 
GATT 1994 11 
LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Working Procedures of the Panel  for Open Meeting  10 
Annex  A-3 Working Procedures of the Panel  Revised on 19  July 2019 and 
20 February  2020 11 
Annex  A-4 Additional Working Procedures of the Panel Concerning Meetings with 
Remote Participation   17 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Switzerland  20 
Annex  B-2 Integrated executive summary  of the arguments of the U nited States  of 
America  38 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of China  45 
Annex  C-2 Integrated executive summary of the arguments of the European  Union  48 
Annex  C-3 Integrated executive summary of the arguments of Hong Kong, China  53 
Annex  C-4 Integrated executive summary of the arguments of India 56 
Annex  C-5 Integrated executive summary of the arguments of Japan  59 
Annex  C-6 Integrated executive summary of the arguments of New Zealand  62 
Annex  C-7 Integrated executive summary of the arguments of Norway  65 
Annex  C-8 Integrated executive summary of the arguments of the Russian  Federation  68 
Annex  C-9 Integrated executive summary of the arguments of Singapore  74 
Annex  C-10 Integrated executive summary of the arguments of Türkiye  79 
Annex  C-11 Integrated executive summary of the arguments of Ukraine  84 
 
 
 WT/DS556/R  
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Import 
Measures  Panel Reports, Argentina – Measures Affecting the Importation of Goods , 
WT/DS438/R  and Add.1 / WT/DS444/R  and Add.1 / WT/DS445/R  and Add.1, 
adopted 26  January  2015, as modified (WT/DS438/R) and upheld (WT/DS444/R 
/ WT/DS445/R) by Ap pellate Body Reports WT/DS438/AB/R / WT/DS444/AB/R 
/ WT/DS445/AB/R, DSR 2015:II, p. 783  
Argentina – Import 
Measures  Appellate  Body Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , adopted 
26 January  2015, DSR 2015:II, p. 579  
Argentina – Textiles and 
Apparel  Appellate  Body Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/AB/R  and Corr.1, adopted 
22 April 1998, DSR 1998:III, p. 1003  
Australia – Salmon 
(Article  21.5 – Canada)  Panel  Report , Australia – Measures Affecting Importation of Salmon – Recourse 
to Article  21.5 of the DSU by Canada , WT/DS18/RW , adopted 20  March  2000, 
DSR 2000:IV, p. 2031  
Australia – Tobacco Plain 
Packaging  Panel  Report s, Australia – Certain Measures concerning Trademarks, 
Geographical Indications and other Plain Packaging Requirements applicable to 
Tobacco Products and Packaging , WT/DS435/R , Add.1 and Suppl.1 (Honduras)  
/ WT/DS441/R , Add.1 and Suppl.1 (Dominican  Republic ) / WT/DS458/R , Add.1 
and Suppl.1 (Cuba) / WT/DS467/R , Add.1 and Suppl.1 (Indonesia) , 
WT/DS458/R  and WT/DS467/R  adopted 27  August  2018, DSR 2018:VIII, p. 
3925, and WT/DS435/R  and WT/DS441/R  adopted 29  June 2020, as upheld by 
Appellate  Body Reports WT/DS435/AB/R / WT/DS441/AB/R, DSR 2018:VIII, p. 
3925 
Australia – Tobacco Plain 
Packaging  Appellate  Body Reports, Australia – Certain Measures concerning Trademarks, 
Geographical Indications and other Plain Packaging Requirements applicable to 
Tobacco Products and Packaging , WT/DS435/AB/R  and Add.1 (Honduras) / 
WT/DS441/AB/R  and Add.1 (Dominican  Republic ), adopted 29  June 2020 
Brazil – Desiccated Coconut  Appellate  Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adopted 20  March  1997, DSR 1997:I, p. 167  
Brazil – Taxation  Appellate  Body Reports, Brazil – Certain Measures Concerning Taxation and 
Charges , WT/DS472/AB/R  and Add.1 / WT/DS497/AB/R  and Add.1, adopted 
11 January  2019, DSR 2019:I, p. 7  
Canada – Autos  Panel Report, Canada – Certain Measures Affecting the Automotive Industry , 
WT/DS139/R , WT/DS142/R , adopted 19  June 2000, as modified by Appellate 
Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, p. 3 043 
Canada – Autos  Appellate  Body Report, Canada – Certain Measures Affecting the Automotive 
Industry , WT/DS139/AB/R , WT/DS142/AB/R , adopted 19  June 2000, DSR 
2000:VI, p. 2985  
Canada – Periodicals  Appellate  Body Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/AB/R , adopted 30  July 1997, DSR 1997:I, p. 449  
Canada – Renewable E nergy 
/ Canada – Feed-in Tariff 
Program  Appellate  Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Measures Relating to the Feed -in Tariff 
Program , WT/DS412/AB/R  / WT/DS426/AB/R , adopted 24  May 2013, DSR 
2013:I, p. 7  
Canada – Wheat Exports 
and Grain Imports  Appellate  Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of I mported Grain , WT/DS276/AB/R , adopted 27  September  2004, 
DSR 2004:VI, p. 2739 
Chile – Price Band System  Panel Report, Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products , WT/DS207/R , adopted 23  October  2002, as 
modified by Appellate Body Report WT/D S207AB/R, DSR 2002:VIII, p. 3127  
Chile – Price Band System  Appellate  Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R , adopted 
23 October  2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)  
Chile – Price Band System 
(Article  21.5 – Argentina)  Appellate  Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Recourse to Article  21.5 of the DSU 
by Argentina , WT/DS207/AB/RW , adopted 22  May 2007, DSR 2007:II, p. 513  
China – Auto Parts  Appellate  Body Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R  / WT/DS340/AB/R  / WT/DS342/AB/R , adopted 
12 January  2009, DSR 2009:I, p. 3  
China – Rare Earths  Panel  Report s, China – Measures Related to the Exportation of Rare Earths, 
Tungsten, and Molybdenum , WT/DS431/R  and Add.1 / WT/DS432/R  and Add.1 
/ WT/DS433/R  and Add.1, adopted 29  August  2014, upheld by Appellate  Body 
Reports WT/DS431/AB/R / WT/DS432/AB/R / WT/DS433/AB/R, DSR 2014:IV, 
p. 1127  
China – Raw Materials  Panel  Report s, China – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R , Add.1 and Corr.1 / WT/DS395/R , Add.1 and Corr.1 / WT/DS556/R  
 
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  Short Title  Full Case Title and Citation  
WT/DS398/R , Add.1 and Corr.1, adopted 22  February  2012, as modified by 
Appellate  Body Reports WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, 
DSR 2012:VII, p. 3501  
Colombia – Ports of Entry  Panel  Report , Colombia – Indicative Prices and Restrictions on Ports of Entry , 
WT/DS366/R  and Corr.1, adopted 20  May 2009, DSR 2009:VI, p. 2535  
Colombia – Textiles  Appellate  Body Report, Colombia – Measures Relating to the Importation of 
Textiles, Apparel and Footwear , WT/DS461/AB/R  and Add.1, adopted 
22 June 2016, DSR 2016:III, p. 1131  
Colombia – Textiles 
(Article  21.5 – Colombia) / 
Colombia – Textiles 
(Article  21.5 – Panama)  Panel  Report , Colombia – Measures Relating to the Importation of Textiles, 
Apparel and Footwear – Recourse to Article  21.5 of the DSU by Colombia  / 
Colombia – Measures Relating to the Importation of Textiles, Apparel and 
Footwear – Recourse to Article  21.5 of t he DSU by Panama , WT/DS461/RW  and 
Add.1, circulated to WTO Members 5  Octob er 2018 
Dominican  Republic  – 
Import and Sale of 
Cigarettes  Panel  Report , Dominican  Republic  – Measures Affecting the Importation and 
Internal Sale of Cigarettes , WT/DS302/R , adopted 19  May 2005, as modified by 
Appellate  Body Report WT/DS302 /AB/R, DSR 2005:XV, p. 7425  
Dominican  Republic  – 
Safeguard Measures  Panel  Report , Dominican  Republic  – Safeguard Measures on Imports of 
Polypropylene Bags and Tubular Fabric , WT/DS415/R , WT/DS416/R , 
WT/DS417/R , WT/DS418/R , and Add.1, adopted 22  February  2012, DSR 
2012:XIII, p. 6775  
EC and certain member 
States – Large Civil Aircraft  Appellate  Body Report, European  Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 
1 June 2011, DSR 2011:I, p.  7 
EC – Bananas III  Panel Reports, European  Communities – Regime for the Importation, Sale and 
Distribution of  Bananas , WT/DS27/R/ECU  (Ecuador)  / WT/DS27/R/GTM , 
WT/DS27/R/HND  (Guatemala and Honduras)  / WT/DS27/R/MEX  (Mexico)  / 
WT/DS27/R/USA  (US), adopted 25  September  1997, as modified by Appellate 
Body Report WT/DS27/AB/R , DSR 1997:II, p.  695 to DSR 1997:III, p.  1085 
EC – Bananas III  Appellate  Body Report, European  Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R , adopted 25  September  1997, 
DSR 1997:II, p. 591  
EC – Bananas III 
(Article  21.5 – Ecuador  II) Panel Report, European  Communities – Regime for the Importation, Sale and 
Distribution of Bananas – Second Recourse to Article 21.5 of the  DSU by 
Ecuador , WT/DS27/RW2/ECU , adopted 11  December  2008, as modified by 
Appellate Body Report WT/DS27/AB/RW2/ECU, DSR 2008:XVIII, p. 7329  
EC – Bananas III 
(Article  21.5 – Ecuador II) / 
EC – Bananas III 
(Article  21.5 – US) Appellate  Body Reports, European  Communities – Regime for the Importation, 
Sale and Distribution of Bananas – Second Recourse to Article  21.5 of the DSU 
by Ecuador , WT/DS27/AB/RW2/ECU , adopted 11  December  2008, and Corr.1 / 
European  Communities  – Regime for the Importation, Sale and Distribution of 
Bananas – Recourse to Article  21.5 of the DSU by the United  States , 
WT/DS27/AB/RW/USA  and Corr.1, adopted 22  December  2008, DSR 
2008:XVIII, p. 7165  
EC – Bed Linen (Article  21.5 
– India)  Appellate  Body Report, European  Communities – Anti-Dumping Duties on 
Imports of Cotton -Type Bed Linen from India – Recourse to Article  21.5 of the 
DSU by India, WT/DS141/AB/RW , adopted 24  April 2003, DSR 2003:III, p. 965  
EC – Chicken Cuts  Panel  Report s, European  Communities – Customs Classification of Frozen 
Boneless Chicken Cuts , WT/DS269/R  (Brazil)  / WT/DS286/R  (Thailand ), 
adopted 27  September  2005, as modified by Appellate  Body Report 
WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XIX , p. 9295 / DSR 2005:XX, 
p. 9721 
EC – Chicken Cuts  Appellate  Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R , WT/DS286/AB/R , adopted 
27 September  2005, and Corr.1, DSR 2005:XIX, p. 9157  
EC – Computer Equipment  Appellate  Body Report, European  Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/AB/R , WT/DS67/AB/R , WT/DS68/AB/R , 
adopted 22  June 1998, DSR 1998:V, p.  1851 
EC – Export Subsidies on 
Sugar (Australia)  Panel  Report, European  Communities – Export Subsidies on Sugar, Complaint 
by Australia , WT/DS265/R , adopted 19  May 2005, as modified by 
Appellate  Body Report WT/DS265 /AB/R, WT/DS266/AB/R, WT/DS283/AB/R, 
DSR 2005:XIII, p.  6499 
EC – Fasteners (China)  Panel  Report , European  Communities – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China , WT/DS397/R  and Corr.1, adopted 
28 July 2011, as modified by Appellate  Body Report WT/DS397/AB/R, DSR 
2011:VIII, p.  4289 
EC – Fasteners (China) 
(Article  21.5 – China)  Appellate  Body Report, European  Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China – Recourse to 
Article  21.5 of the DSU by China , WT/DS397/AB/RW  and Add.1 , adopted 
12 February  2016, DSR 2016:I, p.  7 WT/DS556/R  
 
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  Short Title  Full Case Title and Citation  
EC – Hormones  Appellate  Body Report, European  Communities – Measures Concerning Meat 
and Meat Products (Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 
13 February  1998, DSR 1998:I, p.  135 
EC – IT Products  Panel  Report s, European  Communities and its member States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R  / 
WT/DS376/R  / WT/DS377/R , adopted 21  September  2010, DSR 2010:III, 
p. 933 
EC – Poultry  Appellate  Body Report, European  Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R , adopted 23  July 1998, 
DSR 1998:V, p.  2031 
EC – Seal Products  Panel Reports, European  Communities – Measures Prohibiting the Importation 
and Marketing of Seal Products , WT/DS400/R  and Add.1 / WT/DS401/R  and 
Add.1, adopted 18  June 2014, as modified by Appellate Body Reports 
WT/DS400/AB/R / WT/DS401/AB/R, DSR 2014:II, p.  365 
EC – Seal Products  Appellate  Body Reports, European  Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18  June 2014, DSR 2014:I, p.  7 
EC – Selected Customs 
Matters  Appellate  Body Report, European  Communities – Selected Customs Matters , 
WT/DS315/AB/R , adopted 1 1 December  2006, DSR 2006:IX, p.  3791 
EEC – Import Restrictions  GATT Panel Report, EEC – Quantitative Restrictions Against Imports of Certain 
Products from Hong Kong, L/5511 , adopted 12 July 1983, BISD 30S/129  
India – Additional Import 
Duties  Appellate  Body Report, India – Additional and Extra -Additional Duties on 
Imports from the United  States , WT/DS360/AB/R , adopted 17  November  2008, 
DSR 2008:XX, p.  8223 
India – Agricultural Products  Panel  Report , India – Measures Concerning the Importation of Certain 
Agricultural Products , WT/DS430/R  and Add.1, adopted 19  June 2015, as 
modified by Appellate  Body Report WT/DS430/AB/R, DSR 2015:V, p.  2663 
India – Patents (US)  Appellate  Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R , adopted 16  January  1998, DSR 
1998:I, p.  9 
India – Quantitativ e 
Restrictions  Panel  Report , India – Quantitative Restrictions on Imports of Agricultural, 
Textile and Industrial Products , WT/DS90/R , adopted 22  September  1999, 
upheld by Appellate  Body Report WT/DS90/AB/R, DSR 1999:V, p.  1799 
India – Solar Cells  Panel  Report , India – Certain Measures Relating to Solar Cells and Solar 
Modules , WT/DS456/R  and Add.1, adopted 14  October  2016, as modified by 
Appellate  Body Report WT/DS456/AB/R, DSR 2016:IV, p.  1941 
Indonesia – Autos  Panel  Report , Indonesia – Certain Measures Affecting the Automobile Industry , 
WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1  and Corr.2, adopted 
23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p.  2201 
Indonesia – Chicken  Panel  Report , Indonesia – Measures Concerning the Importation of Chicken 
Meat and Chicken Products , WT/DS484/R  and Add.1, adopted 
22 November  2017, DSR 2017:VIII, p.  3769 
Indonesia – Iron or Steel 
Products  Panel  Report , Indonesia – Safeguard on Certain Iron or Steel Products , 
WT/DS490/R , WT/DS496/R , and Add.1, adopted 27  August  2018, as modified 
by Appellate  Body Report WT/DS49 0/AB/R, WT/DS496/AB/R, DSR 2018:VII, 
p. 3707 
Indonesia – Iron or Steel 
Products  Appellate  Body Report, Indonesia – Safeguard on Certain Iron or Steel 
Products , WT/DS490/AB/R , WT/DS496/AB/R , and Add.1, adopted 
27 August  2018, DSR 2018:VII, p.  3393 
Japan – Alcoholic Beverages 
II Appellate  Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R , 
WT/DS10/AB/R , WT/DS11/AB/R , adopted 1  November  1996, DSR 1996:I, p.  97 
Japan – Film Panel  Report , Japan – Measures Affecting Consumer Photographic Film and 
Paper , WT/DS44/R , adopted 22  April 1998, DSR 1998:IV, p.  1179 
Peru – Agricultural Products  Panel  Report , Peru – Additional Duty on Imports of Certain Agricultural 
Products , WT/DS457/R  and Add.1, adopted 31  July 2015, as modified by 
Appellate  Body Report WT/DS457/AB/R, DSR 2015:VII, p.  3567 
Peru – Agricultural Products  Appellate  Body Report, Peru – Additional Duty on Imports of Certain 
Agricultural Products , WT/DS457/AB/R  and Add.1, adopted 31  July 2015, DSR 
2015:VI, p.  3403 
Russi a – Pigs (EU)  Panel  Report , Russian  Federation  – Measures on the Importation of Live Pigs, 
Pork and Other Pig Products from the European  Union , WT/DS475/R  and Add.1, 
adopted 21  March  2017, as modified by Appellate  Body Report 
WT/DS475/AB/R, DSR 2017:II, p.  361 
Russia – Railway Equipment  Panel  Report , Russia – Measures Affecting the Importation of Railway 
Equipment and Parts Thereof , WT/DS4 99/R and Add.1, adopted 5  March  2020, 
as modified by Appellate  Body Report WT/DS499/AB/R  
Russia – Tariff Treatment  Panel  Report , Russia – Tariff Treatment of Certain Agricultural and 
Manufacturing Products , WT/DS485/R , Add.1, Corr.1, and Corr.2, adopted 
26 September  2016, DSR 2016:IV, p.  1547 WT/DS556/R  
 
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  Short Title  Full Case Title and Citation  
Russia – Traffic in Transit  Panel Report , Russia – Measures Concerning Traffic in Transit , WT/DS512/R  and 
Add.1, adopted 26  April 2019, DSR 2019:VIII, p. 4301  
Saudi Arabia – IPRs Panel  Report , Saudi Arabia – Measures Concerning the Protection of Intellectual 
Property Rights , WT/DS567/R  and Add.1, circulated to Members on 
16 June 2020, dispute termi nated while appeal pending  
Thailand – Cigarettes 
(Philippines)  Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes 
from the Philippines , WT/DS371/AB/R , adopted 15  July 2011, DSR 2011:IV, 
p. 2203 
Ukraine – Ammoni um 
Nitrate  Appellate  Body Report, Ukraine – Anti-Dumping Measures on Ammonium 
Nitrate , WT/DS493/AB/R  and Add.1, adopted 30  September  2019, DSR 2019:X, 
p. 5227  
US – 1916 Act  Appellate  Body Report, United  States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R , WT/DS162/AB/R , adopted 26  September  2000, DSR 2000:X, 
p. 4793 
US – Carbon Steel  Panel  Report , United  States – Countervailing Duties on Certain Corrosion -
Resistant Carbon Steel Flat Products from Germany , WT/DS213/R  and Corr.1, 
adopted 19  December  2002, as modified by Appellate  Body Report 
WT/DS213/AB/R, DSR 2002:IX, p.  3833 
US – Carbon Steel  Appellate  Body Report, United  States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products  from Germany , WT/DS213/AB/R  
and Corr.1, adopted 19  December  2002, DSR 2 002:IX, p.  3779 
US – COOL  Appellate  Body Reports, United  States – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/AB/R  / WT/DS386/AB/R , adopted 
23 July 2012, DSR 2012:V, p.  2449 
US – COOL (Article  21.5 – 
Canada and Mexico)  Appellate  Body Reports, United  States – Certain Country of Origin Labelling 
(COOL) Requirements – Recourse to Article  21.5 of the DSU  by Canada and 
Mexico , WT/DS384/AB/RW  / WT/DS386/AB/RW , adopted 29  May 2015, DSR 
2015:IV, p.  1725 
US – Customs Bond 
Directive  Panel  Report , United  States – Customs Bond Directive for Merchandise Subject 
to Anti -Dumping/Countervailing Duties , WT/DS345/R , adopted 1  August  2008, 
as modified by Appellate  Body Report WT/DS343/AB/R / WT/DS345/AB/R, DSR 
2008:VIII, p.  2925 
US – Gasoline  Appellate  Body Report, United  States – Standards for Reformulated and 
Conventional Gasoli ne, WT/DS2/AB/R , adopted 20  May 1996, DSR 1996:I, p.  3 
US – Large Civil Ai rcraft (2nd 
complaint) (Article  21.5 – 
EU) Panel Report, United  States – Measures Affecting Trade in Large Civil Aircraft 
(Second Complaint) – Recourse to Article 21.5 of the DSU by the 
European  Union , WT/DS353/RW  and Add.1, adopted 11 April 2019, as modified 
by Appellate Body Report WT/DS 353/AB/R W, DSR 2019:V, p. 2171  
US – Line Pipe  Appellate  Body Report, United  States – Definitive Safeguard Measures on 
Imports of Circular Welded Carbon Quality Line Pipe from Korea , 
WT/DS202/AB/R , adopted 8  March  2002, DSR 2002:IV, p.  1403 
US – Offset Act (Byrd 
Amendment)  Appellate  Body Report, United  States – Continued Dumping and Subsidy Offset 
Act of 2000 , WT/DS217/AB/R , WT/DS234/AB/R , adopted 27  January  2003, DSR 
2003:I, p.  375 
US – Poultry (China)  Panel  Report , United  States – Certain Measures Affecting Imports of Poultry 
from China , WT/DS392/R , adopted 25  October  2010, DSR 2010:V, p.  1909 
US – Ripe Olives from Spain  Panel  Report , United  States  – Anti-Dumping and Countervailing Duties on Ripe 
Olives from Spain , WT/DS577/R  and Add.1, adopted 20  December  2021 
US – Section 301 Trade Act  Panel  Report , United  States – Sections 301 -310 of the Trade Act of 1974 , 
WT/DS152/R , adopted 27  January  2000, DSR 2000:II, p.  815 
US – Shrimp  Appellate  Body Report, United  States – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R , adopted 6  November  1998, DSR 
1998:VII, p.  2755 
US – Softwood Lumber IV  Appellate  Body Report, United  States – Final Countervailing Duty Determination 
with Respect to Certain Softwood Lumber from Canada , WT/DS257/AB/R , 
adopted 17  February  2004, DSR 2004:II, p.  571 
US – Stainless Steel 
(Mexico)  Appellate  Body Report, United  States – Final Anti -Dumping Measures on 
Stainless Ste el from Mexico , WT/DS344/AB/R , adopted 20  May 2008, DSR 
2008:II, p.  513 
US – Steel Safeguards  Appellate  Body Report, United  States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R , WT/DS249/AB/R , 
WT/DS251/AB/R , WT/DS252/AB/R , WT/DS253/AB/R , WT/DS254/AB/R , 
WT/DS258/AB/R , WT/DS259/AB/R , adopted 10  December  2003, DSR 2003:V II, 
p. 3117 
US – Upland Cotton  Appellate  Body Report, United  States – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21  March  2005, DSR 2005:I, p.  3 
US – Washing Machines  Panel Report, United  States – Anti-Dumping and Countervailing Measures on 
Large Residential Washers from Korea , WT/DS464/R  and Add.1, adopted WT/DS556/R  
 
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  Short Title  Full Case Title and Citation  
26 September  2016, as modified by Appellate Body Report WT/DS464/AB/R, 
DSR 2016:V, p.  2505 
US – Zeroing (EC) 
(Article  21.5 – EC) Appellate  Body Report, United  States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") – Recourse to Article  21.5 of the DSU 
by the European  Communities , WT/DS294/AB/RW  and Corr.1,  adopted 
11 June 2009, DSR 2009:VII, p.  2911 
US – Zeroing (Japan) 
(Article  21.5 – Japan)  Appellate Body Report, United  States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW , adopted 31  August  2009, DSR 2009:VIII, p.  3441 
 
 WT/DS556/R  
 
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  EXHIBITS REFERRED TO IN THIS REPORT  
Panel 
Exhibit  Short title (if 
applicable)  Title 
CHE-1 
and 
USA-1 Section 232  Trade Expansion Act, Public Law No.  87–794, 76 Stat. 877 (1962), 
United  States  Code, Title II, Section 232  
CHE-2 
and 
USA-7 Steel Report  US Department of Commerce, Bureau of Industry and Security, Office of 
Technology Evaluation, The Effect of Imports of Steel on the National Security: 
An Investigation Conducted under Section 232 of the Trade Expansion Act of 
1962, as Amended  (11 January  2018) 
CHE-5 
and 
USA-8 Aluminium 
Report  US Department of Commerce, Bureau of Industry and Security, Office of 
Technology Evaluation, The Effect of Imports of Aluminum  on the National 
Security, An Investigation Conducted under Section 232 of the Trade 
Expansion Act of 1962, as Amended  (17 January  2018)  
CHE-8 
and 
USA-9 Presidential 
Proclamation 
9705 Proclamation 9705 of 8  March  2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  51 
(15 March  2018), p. 11625  
CHE-9 
and 
USA-11 Presidential 
Proclamation 
9711 Proclamation 9711 of 22  March  2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  60 
(28 March  2018), p. 13361  
CHE-10 
and 
USA-13 Presidential 
Proclamation 
9740 Proclamation 9740 of 30  April 2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  88 (7 May 2018), p. 
20683  
CHE-11 
and 
USA-15 Presidential 
Proclamation 
9759 Proclamation 9759 of 31  May 2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  108 (5 June 2018), 
p. 25857  
CHE-13 
and 
USA-10 Presidential 
Proclamation 
9704 Proclamation 9704 of 8  March  2018, Adjusting Imports of Aluminum Into the 
United  States , United  States  Federal Register, Vol. 83, No.  51 
(15 March  2018), p. 11619  
CHE-14 
and 
USA-12 Presidential 
Proclamation 
9710 Proclamation  9710 of 22  March  2018, Adjusting Imports of Aluminum Into the 
United  States , United  States  Federal Register, Vol. 83, No.  60 
(28 March  2018), p. 13355   
CHE-15 
and 
USA-14 Presidential 
Proclamation 
9739 Proclamation 9739 of 30  April 2018, Adjusting Imports of Aluminum Into the 
United  States , United  States  Federal Register, Vol. 83, No.  88 (7 May 2018), p. 
20677  
CHE-16 
and 
USA-16 Presidential 
Proclamation 
9758 Proclamation 9758 of 31  May 2018, Adjusting Imports of Aluminum Into the 
United States , United  States  Federal Register, Vol. 83, No.  108 (5 June 2018), 
p. 25849  
CHE-20 
and 
USA-20 March Interim 
Final Rule  Requirements for Submissions Requesting Exclusions From the Remedies 
Instituted in Presidential Proclamations Adjusting Impor ts of Steel Into the 
United  States  and Adjusting Imports of Aluminum Into the United  States ; and 
the Filing of Objections to Submitted Exclusion Requests for Steel and 
Aluminum, Interim Final Rule, United  States  Federal Register, Vol. 83, No.  53 
(19 March  2018), p. 12106  
CHE-21 
and 
USA-2 Section 232 
regulations  United  States  Code of Federal Regulations, Title 15, Part 705  
CHE-22 
and 
USA-21 September 
Interim Final 
Rule Submissions of Exclusion Requests and Objections to Submitted Requests for 
Steel and Aluminum, Interim Final Rule, United  States  Federal Register, Vol. 
83, No.  176 (11 September  2018), p. 46026  
CHE-23 
and 
USA-18 Presidential 
Proclamation 
9777 Proclamation 9777 of 29  August  2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  171 
(4 September  2018), p. 45025  
CHE-24 
and 
USA-19 Presidential 
Proclamation 
9776 Proclamation 9776 of 29  August  2018, Adj usting Imports of Aluminum Into the 
United  States , United  States  Federal Register, Vol. 83, No.  171 
(4 September  2018), p. 45019  
CHE-35 
(excerpt) 
and 
USA-84 
(full 
version)   Statements dated 29  October  2018, 21  November  2018, and 4  December  2018 
of the United  States , WTO Dispute Settlement Body  
CHE-72 
and 
USA-225 Presidential 
Proclamation 
9980 Proclamation 9980 of 24  January  2020, Adjusting Imports of Derivative 
Aluminum  Articles and Derivative Steel Articles Into the United  States , 
United  States  Federal Register, Vol. 85, No.  19 (29 January  2020), p. 5281  
CHE-73 
and 
USA-233 Presidential 
Proclamation 
9894 Proclamation 9894 of 19  May 2019, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 84, No.  100 (23 May 2019), 
p. 23987  WT/DS556/R  
 
- 12 - 
 
  Panel 
Exhibit  Short title (if 
applicable)  Title 
CHE-74 
and 
USA-232 Presidential 
Proclamation 
9893 Proclamation 9893 of 19  May 2019, Adjusting Imports of Aluminum Into the 
United  States , United  States  Federal Register, Vol. 84, No.  100 (23 May 2019), 
p. 23983  
CHE-75 
and 
USA-234 Presidential 
Proclamation 
10060  Proclamation 10060 of 6  August  2020, Adjusting Imports of Aluminum Into the 
United  States , United  States  Federal Register, Vol. 85, No.  158 
(14 August  2020), p. 49921  
CHE-76 
and 
USA-235 Presidential 
Proclamation 
10064  Proclamation 10064 of 28  August  2020, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 85, No.  171 
(2 September  2020), p. 54877  
CHE-77 
and 
USA-230 Presidential 
Proclamation 
9886 Proclamation 9886 of 16  May 2019, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 84, No.  98 (21 May 2019), 
p. 23421  
CHE-12 Presidential 
Proclamation 
9772 Proclamation 9772 of 10  August  2018, Adjusting Imports of Steel Into the 
United  States , United  States  Federal Register, Vol. 83, No.  158 
(15 August  2018), p. 40429  
CHE-29  United  States ' Schedule of Concessions  
CHE-31  Harmonized Tariff Schedule of the United  States  (2019) Revision 2, Chapter 76  
CHE-56  Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford 
University Press, 2007)  
CHE-60  Larousse, definition of " estimer", 
https://www.larousse.fr/dictionnaires/francais/estimer/31188?q=estimer31111 
(accessed 11  February  2020)  
CHE-61  Diccionario de la lengua española, definition of  "estimar", 
https://www.dle.rae.es/estimar?m=form (accessed 11  February  2020)   
USA-22  The New Shorter Oxford English Dictionary , 4th edn, L. Brown (ed.) (Clarendon 
Press, 1993)  
USA-23  Draft Articles on the Law of Treaties with commentaries, Yearbook of the 
International Law Commission, 1966, Vol. II  
USA-72  G20, Global Forum on Steel Excess Capacity Report  (30 November  2017)  
USA-80  Council for Trade in Goods, Minutes of the Meeting held on 10  November  2017, 
G/C/M/130  
USA-81  Council for Trade in Goods, Minutes of the Meeting held on 23 and 
26 March  2018, G/C/M/131  
USA-82  Committee on Safeguards, Communication from the United  States , G/SG/168  
USA-83  Statement dated 8  May 2018 of the Deputy US Trade Representative and US 
Permanent Representative to the WTO, WTO General Council  
USA-85   Committee on Market Access, Notification Pursuant to the Decision on 
Notification Procedures for Quantitative Restrictions (G/L/59/Rev.1),  
G/MA/QR/N/USA/4  
USA-86  The New Shorter Oxford English Dictionary , 4th edn, L. Brown (ed.) (Clarendon 
Press, 1993)  
USA-93  S. Greenbaum, English Grammar (Oxford University Press, 1996)  
USA-94  R. Flesch and A.H. Lass, The Classic Guide to Better Writing (HarperPerennial, 
1996)  
USA-95  Merriam -Webster's Guide to Punctuation and Style  (Merriam -Webster, 
Incorporated, 1995)  
USA-96  S. Benedict (ed.), Harper's English Grammar (Harper & Row, 1966)  
USA-176  Merriam -Webster's Guide to Punctuation and Style (Merriam -Webster, 
Incorporated, 1995)  
USA-222  The New Shorter Oxford English Dictionary , 4th edn, L. Brown (ed.) (Clarendon 
Press, 1993)  
USA-226  W. Strunk Jr. and E.B. White, The Elements of Style , 4th edn (Allyn and Bacon, 
1999)  
USA-240  Remarks dated 18  April 2016 of C. Malmström, "Way ahead for the global steel 
industry", OECD High -Level Symposium on Steel  
 
 WT/DS556/R  
 
- 13 - 
 
  1  INTRODUCTION  
1.1.  This dispute concerns additional duties and related measures imposed by the United  States  on 
steel and aluminium products under Section  232 of the Trade Expansion Act of 1962, as amended. 
Switzerland  challenges the consistency of these measures with the United  States ' obligations under 
the General Agreement on Tariffs and Trade 1994 (GATT  1994) and the Agreement on Safeguards.  
1.1  Complaint by Switzerland  
1.2.  On 9 July 2018, Switzerland  requested consultations with the United  States  pursuant to Articles 
1 and 4 of the Understan ding on Rules and Procedures Governing the Settlement of Disputes (DSU) , 
Article  XXII:1 of the GATT  1994, and Article  14 of the Agreement on Safeguards  with respect to the 
measures and claims set out below.1 
1.3.  Consultations were held on 30 August  2018 betwe en Switzerland and the United  States . These 
consultations failed to resolve the dispute.2 
1.2  Panel establishment and composition  
1.4.  On 8 November  2018, Switzerland  requested the establishment of a panel pursuant to Article s 
4.7 and 6 of the DSU , Article  XXIII of the GATT  1994, and Article  14 of the Agreement on Safeguards  
with standard terms of reference.3 At its meeting on 4 December  2018, the Dispute Settlement B ody 
(DSB) established a panel pursuant to the request of Switzerland  in document WT/DS 556/15, in 
accordance with Article  6 of the DSU.4 
1.5.  The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered ag reements cited by 
the parties to the dispute, the matter referred to the DSB by Switzerland in document 
WT/DS556/15 and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements .5 
1.6.  On 7 January  2019, Switzerland  requested the Director -General to determine the composition 
of the panel, pursuant to Article  8.7 of the DSU . On 25 January  2019, the Director -General 
accordingly composed the Panel as follows:  
Chairperson:  Mr Elbio Rosselli  
Members:   Mr Esteban B. Conejos, Jr  
   Mr Rodrigo Valenzuela  
1.7.  The Kingdom of Bahrain; Brazil; Canada; China; Colombia; Egypt; the European  Union ; 
Guatemala6; Hong Kong, China; Iceland; India; Indonesia; Japan; Kazakhstan; Malaysia; Mexico; 
New Zealand; Norway; Qatar; the Russian  Federation ; the Kingdom of Saudi Arabia; Singapore; 
South  Africa ; Chinese  Taipei ; Thailand; Türkiye7; Ukraine; the United Arab Emirates; and the 
Bolivarian Republic of Venezuela notified their interest in participating in the Panel proceedings as 
third parties.  
 
1 See Request for consultations by Switzerland, WT/DS556/1.  
2 See Request for the establishment of a panel by Switzerland, WT/DS556/15 (Switzerland's panel 
request).  
3 See Switzerland's panel request.  
4 See Minutes of the DSB meeting held on 4  December  2018, WT/DSB/M/422, para.  2.5. 
5 See Note by the Secretariat, Constit ution of the Panel established at the request of Switzerland, 
WT/DS556/16.  
6 On 14 March  2019, Guatemala notified the Panel of its interest to participate as a third party. (See 
WT/DS556/16/Rev.1 ). 
7 Member formerly known as Turkey.  WT/DS556/R  
 
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  1.3  Panel proceedings  
1.3.1   General  
1.8.  The Panel held an organizational meeting with the parties on 18 March  2019.  
1.9.  After consultation with the parties, the Panel adopted its Working Procedures8 and Timetable9 
on 5 April 2019. 
1.10.   The Panel held a first substantive meeting with the parties on 12 November  2019.10 A session 
with the third parties took place on 18 November  2019. The Panel held a second substantive meeting 
with the parties on 12 and 26 January  2021. On 15 July 2021, the Panel issued the descriptive part 
of its Report to the parties. The Panel issued its Interim Report to the parties on  29 June 2022. The 
Panel issued its Final Report to the parties on  16 November  2022.  
1.3.2   Request for  the substantive meetings of the Panel to be open to the public  
1.11.   On 5  March  2019, the Panel received a communication from the United  States  inquiring 
whether Switzerland  was willing to open the substantive  meetings in the dispute to public 
observation  and make its submissions to the Panel available to the public .11 In the Panel's 
organizational meeting with the parties, Switzerland  expressed its willingness to make the opening 
statements available for public viewing.12 
1.12.   The Panel transmitted its Working Procedures to the parties on 5  April 2019, which provided 
that the Panel "may open its meetings with the parties to the public, subject to appropriate 
procedures to be adopted by the Panel after consulting the parties".13 On 28  May 2019, the Panel 
circulated draft additional working procedures  on open meeting s to the parties for comments. Based 
on the comments received from the parties on 14 June 2019 and 21  June 2019, the Panel adopted 
 
8 The Panel's Working Procedures were revised on 19  July 2019 and 20  February  2020. See the Panel's 
Working Proc edures, adopted on 5  April 2019, as revised on 19  July 2019 and 20  February  2020, in Annex  A-1. 
9 The Timetable  for the Panel proceedings was revised on 19  July 2019, 13  December  2019, and 
20 February  2020.  The Panel subsequently communicated with the part ies directly regarding additional dates 
and deadlines in the Panel proceedings . 
10 On 14  October  2019, the Panel informed the parties that the Chairperson of the Panel would  not be 
able to travel to Geneva for the first substantive meeting  due to an accident. In response to the Panel's 
invitation to provide views on the conduct of the meeting, the United  States  expressed concern that 
participation by videoconference could make the meeting less effective and queried whether the Chairperson 
would be able to participate in  person  with a modest delay in the timetable.  After consulting the parties, the 
Panel decided  on 22  October  2019 to proceed with the participation of the Chairperson through 
videoconferencing. In its decision, the Panel noted t hat the prompt settlement of disputes is a key principle 
under Article  3 of the DSU and, under Article  12.2 of the DSU, panel procedures should provide sufficient 
flexibility so as to ensure high -quality panel reports, while not unduly delaying the panel p rocess. The Panel 
also informed the parties that several actions had been taken in order to guarantee an optimal quality of 
communication, including setting up multiple channels of communication between Geneva and Montevideo to 
maintain connectivity.  
11 United States ' communication dated  5 March  2019.  
12 During the Panel's organizational meeting with the parties, the United  States  alternatively requested 
the Panel to partially open its substantive meetings to the public given the complainants' views in the ot her 
disputes in which the same three persons were appointed as panelists ( See section 1.3.4 below ). The 
United  States  argued in that context that providing for a partially open hearing would serve to facilitate the 
United  States ' right under Article  18.2 of the DSU to disclose statements of its own position. In its 
communication to the parties dated 5  April 2019, the Panel obser ved that nothing in the DSU provides that a 
party's right to disclose statements of its own positions to the public must be exercised through the holding of 
fully or partly open hearings. The Panel noted that there are other ways in which Members can make 
statements of their own position public and that by declining a party's request to hold partially open hearings, 
the Panel would not be depriving a Member of its rights under Article  18.2 or under any other provisions of the 
DSU. Having considered the disa greement between the parties on the United  States ' proposal, as well as the 
parties' views on the scope of the obligation to protect confidential information in the context of a partially 
open hearing, the Panel exercised its discretion under Article  12.1 of the DSU to deny the United  States ' 
request for partially open meetings.  
13 Working Procedures of the Panel, para.  10. WT/DS556/R  
 
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  the Additional Working Procedures on open meetings on 19  July 2019, applicable to the first 
substantive meeting of the Panel with the parties.14 
1.3.3   Request for enhanced third -party rights  
1.13.   On 7  June 2019, the Panel received a communication from Türkiye  requesting  enhanced  
third-party right s (a) to receive copies of all the parties' written submissions, oral statements, 
rebuttals and answers to questions from the Panel and each other, through all stages of the 
proceedings; (b) to be present for the entirety of all substantive meetings of the Panel with the 
parties; and (c) to review t he draft summary of their own arguments in the descriptive part of the 
Panel  Report .15 On 17  June 2019 and 26  June 2019, the Panel invited the parties  to comment on 
this request  as well as other similar requests received from China16, the European  Union17, Norway18, 
the Russia n Federation19, and Hong Kong, China .20 In response, the United  States  opposed the 
requests for enhanced rights to third parties21, whereas  Switzerland  supported the requests.22  
1.14.   Having consulted the parties on this matter  and considering the ir due process interests, the 
Panel informed the parties and third parties on 19  July 2019 that it had decided to grant certain 
enhanced third -party rights to all  third parties. The Panel implement ed this decision in paragraph 
30(e) of the Revised Working Procedures of 19  July 2019, granting third parties access to the parties' 
submissions up to and including their responses to the questions posed by the Panel follo wing the 
first substantive meeting, as well as final versions of the oral statements made by the parties during 
the first substantive meeting . The Panel stated that it would address the requests for enhanced 
third-party rights in respect of further stages of the proceedings  in due course . 
1.15.   After consultation with the parties, t he Panel also granted enhanced third -party rights in 
respect of further stages of the proceedings . On 20  February  2020, the Panel amended its Working 
Procedures  to provide third partie s access to the parties' second written submissions, final versions 
of oral statements made by the parties during the second substantive meeting, their responses to 
the Panel's questions after the second substantive meeting, and comments on those responses .  
1.16.   In the interest of advancing the proceedings during the disruptions  associated  with the 
COVID -19 pandemic23 and pursuant to paragraph 9 of the Panel's Working Procedures, the Panel 
sent additional questions to the parties on 26  August  2020. Based on consultations with the parties, 
the Panel decided on 8 September  2020 and 21  September  2020 that the parties' responses to the 
Panel's  additional  questions and comments on those responses should be made available to  third 
parties.  
1.17.   Due to the  impact of the COVID -19 pandemic on  the second substantive meeting24, the Panel 
decided , on 10  November  2020, to modify its decision of 20 February  2020 so  that third parties 
would not receive further access to any statements, submissions, or exchanges fro m the partie s, 
including statements made by the parties during the second substantive meeting, their responses 
to the Panel's questions after the second substantive meeting, or comments on those responses .  
 
14 See the Panel's Additional Working Procedures on Open Meeting, adopted on 19  July 2019, in 
Annex  A-2. 
15 Türkiye 's communication dated 7 June 2019, para.  11. 
16 China's communication dated 7  June 2019, para.  2. 
17 European  Union 's communication dated 7  June 2019, para.  11. 
18 Norway's communication dated 11  June 2019, para.  3. 
19 Russia n Federation 's communication dated 14  June 2019, p. 3.  
20 Hong Kong, China's communication dated 25  June 2019, p. 1.  
21 United  States ' communications dated 24  June 2019, para.  2; United  States ' communication dated 
1 July 2019, para.  2.  
22 Switzerland's communication dated 24  June 2019,  p. 1; Switzerland's communication dated 
1 July 2019, p. 4.  
23 See section 1.3.5.2  below.  
24 See section 1.3.5.4  below.  WT/DS556/R  
 
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  1.3.4   Relationship with the other disputes where the sa me three persons act as panelists  
1.18.   At the organizational meeting and  at various points in the proceedings, the parties provided 
views regarding the relationship between this dispute and the other cases where the same three 
persons act as panelists.25 
1.19.   Switzerland  considered that these complaints relate to the same matter and Article  9.3 of the 
DSU was therefore applicable , noting that thi s was recognized in the Director -General's decision to 
appoint the same panelists to serve on all these  panels.  Accordingly, Switzerland argued that these 
proceedings required harmonized timetables and consolidated hearings , which could significantly 
reduc e the risk of unnecessary repetition and achieve important efficiencies .26 For Switzerland , the 
notion of a "harmoni zed" timetable in Article  9.3 of the DSU implies "harmoni zed", or consolidated, 
substantive meetings.27 Switzerland argued that , in previous  practice, single panels were established 
under Article  9.1 of the DSU despite the absence of a complete overlap of the claims raised  and that 
"[t]his logic applies a fortiori  under Article  9.3 of the DSU."28 
1.20.   The United  States  considered  that a single panel had not been established  in these disputes  
pursuant to Article  9.1 of the DSU, but ra ther, nine29 separate panels were established by the DSB 
to consider distinct matters. For the United  States , the matters are distinct because the claims and 
measures identified by each complainant are different from the other complainants . For this reason, 
the United  States  submitted that Article  9.3 of the DSU is not applicable and, even if it were, it would 
only be relevant to the composition of the various panels and the timetables.30 In the context of 
Article  9.3 of the DSU, the United  States  argued that t o "harmonize " the timetables in these 
proceedings would mean to make them consistent or compatible and that harmonization does not 
suggest, much less require, that the Panel collapse the proceedings into a single, identical process. 
For the United  States , the disparate sets of claims and measures identified by the c omplainants are 
important to considerations of both efficiency and procedural fairness.31 
1.21.   The Panel notes that , at its meeting on 4 December  2018, the DSB established a panel 
pursuant to the request of Switzerland  in document WT/DS5 56/15, in accordance wit h Article  6 of 
the DSU.32 While the same three persons that act as panelists in this dispute were also appointed 
as panelists in other related cases33, these proceedings are not substantively identical in all respects , 
for instance,  in terms of the precise  measures and claims at issue . The Panel was also mindful of 
the logistical complexities of coordinating multiple formally distinct disputes and, before  adopting its 
Timetable  and Working Procedures, consulted the parties on multiple possible alternatives for the 
conduct and configuration of the proceedings .34 
 
25 The other disputes where  the same three persons are acting as panelists  include DS544 (China), 
DS547 (India), DS552 (Norway), DS554 (the Russian  Federation ), and DS564 ( Türkiye ). Mutually agreed 
solutions were notified in DS550 (Canada) and DS551 (Mexico), where the same three persons were appointed 
as panelists. See United  States  – Certain Measures on Steel and Aluminium Products (Canada) , Notification of 
a Mutually Agreed Solu tion, WT/DS550/13, 27  May 2019 and United  States  – Certain Measures on Steel and 
Aluminium Products ( Mexico ), Notification of a Mutually Agreed Solution, WT/DS551/13, 3  June 2019.  On 
17 January  2022, the United  States  and the European  Union  jointly notifie d the DSB that they were terminating 
the dispute  in DS548 ( European  Union ), where the same three persons were appointed as panelists. 
(WT/DS548/20 ). On 20  January  2022, that panel notified the DSB that it  was in receipt of a communication 
from the European  Union  notifying the withdrawal of its complaint, and accordingly, had ceased all work in 
those proceedings. ( WT/DS548/2 1).  
26 Switzerland's communication dated 22  February  2019.  
27 Switzerland's communication dated 1  March  2019.  
28 Switzerland's communication dated 1  March  2019.  
29 The Panel recalls that the disputes in DS548 ( European  Union ), DS550 (Canada) and DS551 (Mexico) 
were active at the time of the Panel's organizational meeting and related consultations with the parties.  
30 United  States ' communication dated 22  February  2019.  
31 United  States ' communication dated 1  March  2019.  
32 Note by the Secretariat, Constitution of the Panel established  at the request  of Switzerland, 
WT/DS5 56/16. 
33 DS544 (China), DS547 (India), DS552 (Nor way), DS554 (the Russian  Federation ), and DS564 
(Türkiye ). 
34 Panel communication to the parties dated 7  March  2019. During the Panel's organization al meeting 
and related consultations with the parties, the Panel specifically sought the parties' views on the optimal 
scheduling and configuration of the substantive meetings  in the disputes where the same three persons were 
appointed as panelists , particularly addressing three possible configurations for the substantive meetings: ( a) 
 WT/DS556/R  
 
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  1.22.   The Panel, nonetheless, made arrangements at each stage of the proceedings to maintain 
harmonized timetables to the greatest extent possible in both the deadlines for written submissions 
and the dates for meetings across all disputes  in which the same three persons act as panelists . In 
doing so, t he Panel endeavoured to balance the efficient conduct of proceedings with the due  process 
rights of the parties , taking into account  the agreemen t of the parties, or lack thereof, on the 
different proposals on how to organize the proceedings. As elaborated in the next section , the 
harmonization of timetables was, in some instances, affected by the divergent views of the 
complainants across the diff erent disputes.35  
1.3.5   Impact of the COVID -19 pandemic on the Panel  proceedings  
1.3.5.1   Filing of written submissions  
1.23.   On 17  March  2020, in response to the COVID -19 outbreak, the Panel suspended the 
requirement to deliver paper copies of a document or submission to the other parties or the 
DS Registry until further notice. The Panel decided that receipt of the electronic version would be 
deemed to be full service for the purposes of the Working Procedures. After briefly reverting to  
service of hard copi es of documents on 22 July 2020, the Panel informed the parties that as of 
28 October 2020, e -filing would be deemed full service again until further notice.36 
1.3.5.2   Scheduling of the second  substantive meeting of the Panel with the parties  
1.24.   According to the rev ised Timetable  adopted on 20  February  2020 after consultation with the 
parties37, the Panel's second meeting with the parties was scheduled for 16-17 July 2020.  
1.25.   On 27  May 2020, the Panel invited the parties to provide information on  the travel restrictions 
that might impact the overall likelihood of holding the second meeting in  person  in July  2020. 
In addition, the Panel consulted the parties on possible alternative arrangements to meetings in  
person , including (a) holding the second su bstantive meeting through virtual participation in July 
2020; (b) postponement of the meeting to a later date with a possibility for an exchange of written 
questions and responses in the interim; (c) adoption of written procedures as a substitute for the 
second substantive meeting; or (d) any other possible arrangement, should it not be possible to 
hold the meeting in  person in July 2020. The Panel further requested comments on the possibility of 
holding  meetings open to the public given inter alia  the rest riction s on social gatherings  in force in 
Switzerland . 
1.26.   In response to the Panel's communication, Switzerland noted its availability for in -person 
meetings in July 2020 . Switzerland suggested that should it be impossible for all parties involved to 
travel t o Geneva in July, participants unable to travel to Geneva could  participate in the meeting via 
videoconferencing.  With respect to meetings open to the public , Switzerland noted that prevailing 
recommendations and restrictions would permit open meetings as scheduled  but argued  that online 
live streaming would not be an adequate substitute for confidentiality reasons.  Finally, Switzerland 
requested the Panel to foresee an alternative arrangement to in -person meetings at this stage to 
prevent excessive  delays. In this regard, Switzerland stated  that it would not object to  exchanges 
in writing as an alternative solution if a postponed physical meeting could not take place in the fall 
and a virtual meeting would prove impractical , even though Switzerland considered that the purpose 
 
combined substantive meet ings with the parties in this dispute and the other eight disputes; ( b) a "two -stage" 
approach proposed by the United  States  with a first stage devoted solely to the United  States ' arguments 
under Article  XXI of the GATT  1994; and ( c) separate meetings for  each of the disputes in which the same 
panelists  had been appointed.  
35 See section  1.3.5.4  below . 
36 Panel communication to the parties dated 27  October  2020.  
37 Following its first substantive meeting with the parties, the Panel consulted the parties on various 
options for scheduling the second substantive meeting between 22  June-31 July 2020 or 14  Septe mber-
16 October  2020, as well as an expedited timetable under which the second substantive meeting with the 
parties would be held in May 2020. While Switzerland favoured the earlier scheduling of the meeting, the 
United  States  requested that the meeting be  scheduled between 14  September  2020 and 16 October  2020, 
citing conflicting summer holiday schedules, US federal holidays, and the need for sufficient time to adequately 
prepare for the second substantive meeting. Based on these consultations, the Panel s cheduled its second 
meeting with the parties on 16 and 17  July 2020.  WT/DS556/R  
 
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  of a substantive meeting, which fosters active exchanges with the Panel and between the parties, 
would not be entirely achieved throug h written exchanges .38 
1.27.   The United  States  indicated its inability to travel to Geneva for the second substantive meeting 
in July 2020. The United  States  opposed holding the meeting in a virtual format, citing consequent 
limitations on interactions between t he parties and the Panel,  within  the parties' respective 
delegations, among the three panelists, and between the panelists and the Secretariat.39 The 
United  States  also opposed web -casting the meeting owing to concerns of security and protection 
against ma nipulation of such webcasts.40 The United  States  further disagreed with Switzerland's  
suggestion that a written exchange could serve as an alternative to a second substantive meeting 
with contemporaneous oral exchange.41 Finally, with respect to  hybrid  meetings with both in -person 
and virtual  participation , the United  States  argued that the Panel should decline to hold a meeting 
with the parties in a manner that would effectively curtail the participation of one party and the 
Panel, while allowing the full participation of another party.42 On this basis, the United  States  
requested that the Panel reschedule the second substantive meeting for a later date.43 The 
United  States  noted that the Panel need not foresee an alternative arrangement to in -person 
meetings at this stage, given the rapid evolution of the pandemic.44 
1.28.   After reviewing the parties' comments, the Panel in its communication dated 12  June 2020 
decided to postpone the meeting, indicating that it tentatively intended to schedule the meeting 
between 10  September and 20  October  2020.  
1.29.   Through multiple communicati ons sent to the parties on 22  July 2020, 31  July 2020, 
26 August  2020, 21  September  2020, 13  October  2020, and 23  October  2020, the Panel regularly 
consulted the parties on the feasibility of in -person meetings in 2020 and possible alternative 
arrangements. The United  States  identified numerous potential obstacles to holding in -person 
meetings in 2020, including evolving travel and quarantine restrictions due to the pandemic , and 
maintained its preference  for in -person m eetings.45 Switzerland suggested that  in-person  meetings 
could be replaced with (a) hybrid meetings, where participants unable to travel to Geneva would 
participate via videoconferencing; (b) fully virtual meetings, in which all parties would participate 
via videoconferencing; or (c) written exchanges.46 
1.30.   After it became apparent that no in -person meeting would be possible in the foreseeable 
future  due to the COVID -19 pandemic , the Panel issued a decision on 10 November  2020 on the 
way forward  in the proceed ings. The Panel  began by  noting the various restrictions imposed on 
gatherings and international travel in relation to the COVID -19 pandemic, including those instituted 
by Switzerland in November 2020 , and that under  these circumstances , holding the second  
substantive meeting in the manner originally envisaged in the Timetable  was not feasible.  The Panel 
indicated its consistent efforts over the course of the dispute to maintain a balance between the 
efficient conduct of proceedings, the parties' due process rights, and the particular preferences 
expressed by each party, including the complainant 's request to keep the timetables harmonized 
across the disputes in which the same three persons act as panelists. Based on the parties' comments 
and in the interest of continuing to advance the Panel's work, the Panel decided to proceed by holding 
the sec ond substantive meeting virtually.  The Panel further indicated its intention to hold the second 
 
38 Switzerland's communication dated 2  June 2020, pp. 1 -2. 
39 United  States ' communication dated 2  June 2020, paras.  9-10; United  States ' communication dated 
5 June 2020, para.  2. 
40 United  States ' communication dated 2  June 2020, para.  17. 
41 United  States ' communication dated 2  June 2020, para.  15; United  States ' communication dated 
5 June 2020, para.  5. 
42 United  States ' communication dated 5  June 2020, para.  3. 
43 United  States ' communication dated 2  June 2020, para.  11; United  States ' communication dated 
5 June 2020, para.  5.  
44 United  States ' communication dated 5  June 2020, para.  4. 
45 United  States ' communication dated 28  July 2020; United  States ' communication  dated 
9 Septembe r 2020; United  States ' communication dated 20  October  2020; and United  States ' communication  
dated 4  November  2020.  
46 Switzerland's communication dated 28  July 2020; Switzerland's communication dated 
9 September  2020; Switzerland's communication dated 20  October  2020; and Switzerland's communication  
dated 4  November  2020.  WT/DS556/R  
 
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  substantive meeting in closed session given inter alia the limited access to the WTO building and the 
logistical demands of holding virtual substantive meetings . 
1.3.5.3   Use of a virtual meeting platform for the second  substantive meeting of the Panel  
with the parties  
1.31.   In its decision of 10 November  2020, the Panel noted its intention to conduct the second 
meeting through the Cisco Web ex platform  and circulated draft add itional working procedures 
requiring, among other things, that all remote participants follow the security rules contained in 
these additional working procedures  as well as any additional security guidance that may be provided 
by the host . The Panel also proposed to arrange advance testing sessions with the parties to ensure 
their remote participation  and invited  comments from the parties  on the draft additional working 
procedures .  
1.32.   In its comments on the draft additional working procedures , Switzerland suggested including  
a procedure for parties  to signal that they want  to comment on the other party 's statement  or 
response to Panel's question , prohibiting  recording of the virtual meeting, and providing for detailed 
contingency measures in c ase of sudden technical failures.47 The United  States  requested that the 
Panel (a) provide all questions to the parties at least two weeks in advance; (b) refrain from asking 
additional or follow -up questions during the session; and (c) prohibit parties fr om commenting on 
each other 's responses to the Panel 's questions during the session. The United  States  reasoned that  
health concerns preven ted its delegation from gathering in  person to coordinate  responses . The 
United  States  further cited  technical consid erations – "including the inability of USTR employees to 
participate in a meeting via Webex from telework locations" – in support of its request. Finally, t he 
United  States  requested that the Panel enable the Webex dial -in feature to allow individuals from its 
delegation to connect by phone and reflect this adjustment in the proposed additional working 
procedures.48 
1.33.    Taking note of the parties' comments,  the Panel declined the United  States ' request to ( a) 
refrain from asking additional or follow -up questions during the session, and ( b) prohibit parties 
from commenting on each other's responses to the Panel's questions during the session. The Panel 
observed that it had decided to divide the second substantive meeting into two four -hour sessi ons 
with two weeks between the sessions. The Panel found  that this arrangement would allow each party 
the time to confer within its delegation and respond to possible questions from the Panel or the other 
party throughout the course of the meeting. The Pan el also noted that the parties would have the 
opportunity to provide further comments in writing in response to questions after the meeting.49  
1.34.   In the Additional Working Procedures for virtual meetings, the Panel indicated that the 
meeting would be held in  closed session, with remote access limited to registered participants. 
Accordingly, for security and confidentiality reasons, the Panel decided not to enable the dial -in 
feature on Webex. Further , taking Switzerland's comments into consideration, the Pane l expressly 
prohibited recording of the meeting by the parties in the Additional Working Procedures.  
1.3.5.4   Impact on coordination with the other disputes where the same three persons act 
as panelists  
1.35.   As discussed in section  1.3.4 of this Report,  the Panel made several arrangements at each 
stage of the proceedings to maintain harmonized timetables in  all disputes where the same three 
persons are acting as panelists.  However, i n its communications of 13  October  2020 and 
23 October  2020, the Panel noted that the complainants across the se disputes presented diverging  
views on the way forward for  the second s ubstantive meeting in light of the COVID -19 pandemic. 
The Panel indicated to the parties that this divergence was difficult to reconcile with Switzerland's 
initial request to maintain harmoni zed timetables in all disputes. Accordingly, the Panel sought the  
parties' views on the feasibility of maintaining such harmonization going forward.  The Panel also 
invited the parties ' comments  on the implications of the differences among  the complainants in the se 
disputes on enhanced third -party rights, and in particul ar on access to written submissions and 
 
47 Switzerland's communication dated 16  November  2020.  
48 United  States ' communication dated 16  November  2020.  
49 Panel communication to the parties dated 1  December  2020.  WT/DS556/R  
 
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  responses to Panel questions, if the Panel determined that it was not viable to maintain harmoni zed 
timetables.  
1.36.   Switzerland argued  that the  Panel should maintain harmonized  timetables in all the disputes  
as they rela ted to the same matter . Switzerland indicated that it would not object to the Panel 
proceeding differently in these disputes if such harmonization of timetables was maintained.50 In 
Switzerland's view, adopting different modalities  for the second substantive meeting  would not 
provide a strategic advantage to complainants in any of the disputes. However, Switzerland noted 
that the Panel should avoid arrangements that would preclude  the possibility of maintaining 
harmonized timetables, such as proceeding via videoconferencing in some disputes and organi zing 
in-person meetings in others at a later stage.51 Switzerland further requested that enhanced 
third-party rights  already granted by the Panel in respect of the upcoming stages of the proceedings 
be maintained .52 
1.37.   The United  States  objected to proceeding differently across the disputes in which the same 
three persons serve as panelists , arguing that doing so would  provide a strategic benefit to the 
complainants  to the disadvantage of the United  States .53 Moreover, t he United  States  observed that 
should the Panel move forward with different formats and different timetables across the se disputes, 
the United  States  would no longer agree t o open any of the proceedings to public viewing.54 The 
United  States  reasoned that complainants participating in later meetings would have an opportunity 
to view the earlier open meeting s and adjust their statements and arguments accordingly.55 For 
similar reasons , the United  States  also requested that the Panel rescind its decision on enhanced 
third-party rights in the event it acceded to the complainants' diverging requests, arguing that such 
enhanced rights would serve to unfairly advantage t hose third parties that are also parties in their 
own disputes.56  
1.38.   The Panel provided  its decision on the second substantive meeting to the parties on 
10 November 2020 , where it noted that Article  9.3 of the  DSU provides for harmonizing timetables 
to the "greatest extent possible" . The Panel observed  that the  compatibility of positions taken by 
parties across disputes, or lack thereof, was a significant factor in assessing the possibility of 
harmonizing timetable s. In particular, the Panel considered that the harmonization of timetables 
would not compel the adoption of alternative meeting procedures by virtual means even in those 
disputes where both the complainant and the respondent ha d expressed a preference to wait until 
in-person meetings were possible.  In this light, the Panel concluded that if the divergent positions 
of the parties across the disputes result ed in certain meetings being held at a later date, it would no 
longer be possible to harmonize the time tables across the disputes. The Panel further noted that if 
the timetables across the disputes were not harmoni zed, the rights of third parties for subsequent 
stages in the disputes would be as provided for in Article  10 of the DSU, and the Panel would not  
grant third parties further access to any statements, submissions, or exchanges from the parties in 
each dispute.  
1.39.   Based on the foregoing , the Panel scheduled  its second substantive meeting  with the parties 
in this dispute for 12 and 26 January  2021. Rights of third parties for subsequent stages in the 
disputes  were limited  to those  provided in Article  10 of the DSU.  
2  FACTUAL ASPECTS  
2.1  Section  232 and the United  States  Department of Commerce reports  on steel and 
aluminium  
2.1.  This section provides  the legislative and regulatory background of the measures at issue in this 
dispute  and, in  particular, of:  
 
50 Switzerland's co mmunication dated 20  October  2020, pp. 1 -2. 
51 Switzerland's communication dated 4  November  2020, paras.  3-4. 
52 Switzerland's communication dated 20  October  2020, p. 2; Switzerland's communication dated 
4 November  2020, para.  5. 
53 United  States ' communication dated 20  October  2020, para. 2. 
54 United  States ' communication dated 4  November  2020, para.  7. 
55 United  States ' communication dated 20  October  2020, para.  5. 
56 United  States ' communication dated 4  November  2020, para.  7. WT/DS556/R  
 
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  a. Section  232 of the Trade Expansion Act of 1962, as amended ( United  States  Code, Title 
19, Section  1862) (Section  232)57 and its implementing regulation, United  States  Code of 
Federal Regulation s, Title 15, Part 70558; 
b. "The Effect of Imports of Steel on the National Security: An Investigation Conducted Under 
Section 232 of the Trade Expansion Act of 1962, As Amended", United  States  Department 
of Commerce  Report , 11 January  2018 (Steel Report)59; and  
c. "The Effects of Impor ts of Aluminum on the National Security: An Investigation Conducted 
Under Section 232 of the Trade Expansion Act of 1962, As Amended", United  States  
Department of Commerce  Report, 17  January  2018 ( Aluminium Report ).60 
2.1.1   Section  232  
2.2.  Pursuant to Section  232, upon request of the head of any department or agency, upon 
application of an interested party, or upon his own motion, the U nited States  (US) Secretary of 
Commerce shall immediately initiate an appropriate investigation to determine the effect s on the 
national security of imports of the article which is the subject of such request, application, or 
motion.61 The US Secretary of Commerce shall also immediately provide notice to the US Secretary 
of Defense of any such investigation, and shall cons ult with the Secretary of Defense regarding the 
methodological and policy questions raised in such investigation.62 
2.3.  Section  232 further provides that  no later than 270 days after an investigation is initiated with 
respect to any article, the US Secretary o f Commerce shall submit to the US President a report on 
the findings of the investigation with respect to the effect of the importation of such article in such 
quantities or under such circumstances upon the national security . Section  232 directs the US 
Secretary of Commerce to make recommendations for action or inaction  based on such findings. If 
the US Secretary of Commerce finds that such article is being imported into the United  States  in 
such quantities or under such circumstances as to threaten to imp air the national security, the 
Secretary shall so advise the US President in such report.63 
2.4.  Within 90 days of receiving such report, the US President shall: (a) determine whether the 
President concurs with the finding of the Secretary; and (b) if the Presi dent concurs, determine the 
nature and duration of the action that, in the judgment of the President, must be taken to adjust 
imports of the article and its derivatives so that such imports will not threaten to impair national 
security.64 If the US Preside nt determines to take action to adjust imports of the article and its 
derivatives, the US President shall implement such action within 15 days.65 Further, the action taken 
by the US President may be the negotiation of an agreement which limits or restricts importation 
into, or exportation to, the United  States  of the article that threatens to impair US national security, 
or such other actions as th e US President deems necessary to adjust the imports of the article so 
that the imports will not threaten to impair US national security.66 
2.5.  Section  232 also sets out factors that should be analysed  when conducting an investigation to 
determine the effects of imports of a product  on the national security . In particular, it provides that 
the US Secretary of Commerce and the US President shall, in light of the requirements of national 
security and without excluding other relevant factors, give consideration to :  
a. domestic production needed for projected national defen ce requirements;  
b. the capacity of domestic industries to meet such requirements;  
 
57 Section 232, (Exhibit CHE -1 and USA -1). 
58 Section 232 regulations, ( Exhibit CHE-21 and USA-2). 
59 Steel Report,  (Exhibit CHE -2 and USA-7). 
60 Aluminium Report, ( Exhibit CHE-5 and USA-8). 
61 Section 232, (Exhibit CHE -1 and USA -1), § 1862(b)(1)(A).  
62 Section 232, (Exhibit C HE-1 and USA -1), §§ 1862(b)(1)(B) and (b)(2)(A).  
63 Section 232, (Exhibit CHE -1 and USA -1), § 1862(b)(3)(A) . 
64 Section 232, (Exhibit CHE -1 and USA -1), § 1862(c)(1)(A).   
65 Section 232, (Exhibit CHE -1 and USA -1), § 1862(c)(1)(B).  
66 Section 232, (Exhibit CHE -1 and USA -1), § 1862(c)(3)(A).  WT/DS556/R  
 
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  c. existing and anticipated availabilities of the human resources, products, raw materials, 
and other supplies and services essential to the national defen ce; 
d. the requirements of growth of such industries and such supplies and services including the 
investmen t, exploration, and development necessary to assure such growth; and  
e. the importation of goods in terms of their quantities, availabilities, character, and use as 
those affect such industries and the capacity of the United  States  to meet national security 
requirements.67  
2.6.  In addition to these factors, Section  232 provides that in the administration of this section, the 
US Secretary of Commerce and the US President shall further recognize the close relation of the 
economic welfare of the United  States  to its national security, and shall take into consideration:  
a. the impact of foreign competition on the economic welfare of individual domestic 
industries; and  
b. any substantial unemployment, decrease in revenues of government, loss of skills or 
investment, or other serious effects resulting from the displacement of any domestic 
products by excessive imports.68 
2.7.  Additional regulations in the United  States  Code of Federal Regulation s, Title 15, Part 705  set 
out the procedures according to which the  US Department of Commerce  shall commence and 
conduct its investigation to determine the effect on the national security of the imports of any article , 
as well as issue the  report and recommendation to the President of the United  States  for action or 
inaction regarding an adjustment of the imports of the article (s) in question.69 
2.1.2   The Steel Report  
2.8.  The Steel Report  of 11 January  2018 summarizes the findings of an investigation conducted by 
the US Department of Commerce pursuant to Section  232 into the effect of imports of steel mill 
products on the national security of the United  States . 
2.1.2.1   Initiation and investigation process  
2.9.  On 19  April 2017, the US Secretary of Commerce initiated an investigation to determine the 
effect of imported steel on national sec urity under Section  232. The US Department of Commerce 
notified the US Department of Defense of the investigation in  a letter dated 19  April 2017.70 On 
20 April 2017, the US President signed a Presidential Memorandum directing the US Secretary of 
Commerce to proceed expeditiously in conducting his investigation and submit a report on his 
findings to the President.71 On 21  April 2017, the US Department of Commerce published in the 
Federal Register a notice about the initiation of the investigation. The notice also announced the 
opening of the public comment period as well as a public hearing to be held on 24  May 2017.72 The 
US Department of Commerce held a public hearing to elicit further information concerning the 
investigation in Was hington, D .C., on 24  May 2017.73 
2.10.   In addition to the notification provided by its 19 April 2017 letter  to the US Department of 
Defense , the US Department of Commerce carried out consultations with the US Department of 
Defense regarding methodological and po licy questions that arose during the investigation. 
According to the Steel Report, discussions were held with the US Army Materiel Command, the 
Defense Logistics Agency, the US Navy/Naval Air Systems Command, and the Under Secretary of 
Defense for Acquisit ions & Logistics, Manufacturing , and Industrial Base Policy. Discussions were 
also held with "appropriate officers of the United States", including the US Department of State, 
Department of the Treasury, Department of the Interior/US Geological Survey, the  Department of 
 
67 Section 232, (Exhibit CHE -1 and USA -1), § 1862(d).  
68 Section 232, (Exhibit CHE -1 and USA -1), § 1862(d).  
69 Section 232 regulations, ( Exhibit CHE -21 and USA-2), §§ 705.1 -705.12.  
70 Steel Report, (Exhibit CHE-2 and USA -7), p. 18.  
71 Steel Report, (Exhibit CHE -2 and USA -7), p. 18.  
72 Steel Report, (Exhibit CHE -2 and USA -7), p. 18.  
73 Steel Report, (Exhibit CHE -2 and USA -7), p. 18.  WT/DS556/R  
 
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  Homeland Security/US Customs and Border Protection, the International Trade Commission, and the 
Office of the United  States  Trade Representative.74 
2.1.2.2   Product scope  
2.11.   The Steel Report describes  its product coverage as steel mill products which ar e defined at 
the Harmonized System 6 -digit level as: 720610 through 721650, 721699 through 730110, 730210, 
730240 through 730290, and 730410 through 730690, including any subsequent revisions to these 
HS codes.75 Generally, these products fall into five ca tegories:  
a. Carbon and Alloy Flat Product s (Flat Products): Steel products p roduced by rolling 
semifinished steel through varying sets of rolls. This category i ncludes sheets, strips, and 
plates.76 
b. Carbon and Alloy Long Products (Long Products): Steel products that fall outside the flat 
products category. This category i ncludes bars, rails, rods, and beams.77 
c. Carbon and Alloy Pipe and Tube Products (Pipe and Tube Products): Either seamless or 
welded pipe and tube products. Some of these products may include stainless as well as 
alloys other than stainless.78 
d. Carbon and Alloy Semi -finished Products (Semi -finished Products): The initial, 
intermediate solid forms of molten steel, to be re -heated and furt her forged, rolled, 
shaped, or otherwise worked into finished steel products. This category i ncludes blooms, 
billets, slabs, ingots, and steel for castings.79 
e. Stainless Products: Steel products, in flat -rolled, long, pipe and tube, and semi -finished 
forms,  containing at minimum 10.5 % chromium and, by weight, 1.2 % or less of carbon, 
offering better corrosion resistance than other steel.80 
2.1.2.3   Findings and recommendations by the US Secretary of Commerce  
2.12.   The Steel Report refers to the  nonexclusive lists of factor s in Section  232 and its implementing 
regulations that the US Department of Commerce must consider in evaluating the effect of imports 
on the national security.81 The Steel Report further  refers to a determination by the US Department 
of Commerce in 2001  that (a) national defen ce includes both defen ce of the United  States  directly 
and its ability to project military capabilities globally , and (b) the term "national security" can be 
 
74 Steel Report, (Exhibit CHE -2 and USA -7), pp. 19 -20. 
75 Steel Report, (Exhibit CH E-2 and USA -7), p. 21.  
76 Flat products are covered under the following 6 -digit HS codes: 720810, 720825, 720826, 720827, 
720836, 720837, 720838, 720839, 720840, 720851, 720852, 720853, 720854, 720890, 720915, 720916, 
720917, 720918, 720925, 720926, 720927,  720928, 720990, 721011, 721012, 721020, 721030, 721041, 
721049, 721050, 721061, 721069, 721070, 721090, 721113, 721114, 721119, 721123, 721129, 721190, 
721210, 721220, 721230, 721240, 721250, 721260, 722511, 722519, 722530, 722540, 722550, 722591, 
722592,  722599, 722611, 722619, 722691, 722692, 722693, 722694, 722699. (Steel Report, (Exhibit CHE -2 
and USA -7), p. 21 ). 
77 Long products are covered under the following 6 -digit HS codes: 721310, 721320, 721391, 721399, 
721410, 721420, 721430, 721491, 721499, 721 510, 721550,721590, 721610, 721621, 721622, 721631, 
721632, 721633, 721640, 721650, 721699, 721710, 721720, 721730, 721790, 722520, 722620,722710, 
722720, 722790, 722810, 722820, 722830, 722840, 722850, 722860, 722870, 722880, 722910,722920, 
722990, 730110 , 730210, 730240, 730290. (Steel Report, (Exhibit CHE -2 and USA -7), pp. 21 -22). 
78 Pipe and Tube products are covered under the following 6 -digit HS codes: 730410, 730419, 730421, 
730423, 730429, 730431, 730439, 730451, 730459, 730490, 730511, 730512, 73051 9, 730520, 730531, 
730539, 730590, 730610, 730619, 730620, 730629, 730630, 730650, 730660, 730661, 730669, 730690. 
(Steel Report, (Exhibit CHE -2 and USA -7), p. 22 ). 
79 Semi-finished products are covered under the following 6 -digit HS codes: 720610, 720690, 720711, 
720712, 720719, 720720, 722410, 722490. (Steel Report, (Exhibit CHE -2 and USA -7), p. 22 ). 
80 Stainless steel products are covered under the following 6 -digit HS codes: 721810, 721891, 721899, 
721911, 721912, 721913, 721914, 721921, 721922, 721923, 721924, 721931, 721932, 721933, 721934, 
721935, 721990, 722011, 722012, 722020, 722090, 722100, 7222 11, 722219, 722220, 722230, 722240, 
722300, 730411, 730422, 730424, 730441, 730449, 730611, 730621, 730640. (Steel Report, (Exhibit CHE -2 
and USA -7), p. 22). 
81 Steel Report, (Exhibit CHE -2 and USA -7), p. 13.  WT/DS556/R  
 
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  interpreted more broadly to include the general security and welfare of certain industries, beyond 
those necessary to satisfy national defen ce requirements that are critical to the minimum operations 
of the economy and government.82 
2.13.   In the Steel Report, th e US Secretary of Commerce determined that the displacement of 
domestic steel by excessive imports and the consequent adverse impact of those quantities of steel 
imports on the economic welfare of the domestic steel industry, along with the circumstance of  
global excess capacity in steel, were "weakening our internal economy" and therefore "threaten to 
impair" US national security  as defined in Section  232.83 According to the Steel Report, the continued 
rising levels of imports of foreign steel threaten to impair the national security by placing the US 
steel industry at substantial risk of displacing the basic oxygen furnace and other steelmaking 
capacity, and the related supply chain needed to produce steel for critical infrastructure and national 
defen ce.84 The Steel Report refers to global excess steel capacity as a circumstance that contributes 
to the "weakening of [the US] internal economy" that "threaten[s] to impair" US national security 
as defined in Section  232.85  
2.14.   In arriving at  this general conclus ion, the Steel Report relied on four main overarching 
findings, which in turn, comprise  several  intermediate findings:  
a. Steel is important to US national security because86: (i) steel is needed for national 
defen ce requirements87; (ii) steel is required for US critical infrastructure88; (iii) domestic 
steel production is essential for national security89; (iv) domestic steel production depends 
on a healthy and competitive US industry90; and (v)  steel is consumed in critical 
industries .91 
b. Imports in such quantities as are presently found adversely impact the economic welfare 
of the US steel industry due to92: (i) continued  increase  in imports of steel products93; 
(ii) high import penetration94; (iii)  high import to export ratio95; (iv)  prevailing  steel 
prices96; (v) steel mill closures97; (vi) declining employment trend since 199898; (vii) trade 
actions such as anti -dumping  and countervailing duties99; (viii) loss of domestic 
opportunities to bidders using imported steel100; (ix) financial distress101; and (x) limited 
capital expenditures arising from falling revenue and reduce d profits.102 
c. Displacement of domestic steel by excessive quantities of imports has the serious effect 
of weakening the US internal economy because103: (i) dome stic steel production capacity 
is stagnant and concentrated104; (ii) production is well below demand105; (iii)  utilization 
 
82 Steel Report, (Exhibit CHE -2 and USA -7), p. 13 (referring to Department of Commerce, Bureau of 
Export Administration: The Effect of Imports of Iron Ore and Semi -Finished  Steel on the National Security, 
October 2001) . The Steel Report further clarifies that it uses the more recent 16 critical inf rastructure sectors 
identified in Presidential Policy Directive 21 instead of the 28 critical industry sectors used by the Bureau of 
Export  Administration in the 2001 Report . (Ibid. p. 14).  
83 Steel Report, (Exhibit CHE -2 and USA -7), p. 55.  
84 Steel Report, (Exhibit CHE -2 and USA -7), p. 55.  
85 Steel Report, (Exhibit CHE -2 and USA -7), p. 55.  
86 Steel Report, (Exhibit CHE -2 and USA -7), p. 23.  
87 Steel Report, (Exhibit CHE -2 and USA -7), p. 23.  
88 Steel Report, (Exhibit CHE -2 and USA -7), pp. 23 -24. 
89 Steel Report, (E xhibit CHE -2 and USA -7), pp. 24 -25. 
90 Steel Report, (Exhibit CHE -2 and USA -7), p. 25.  
91 Steel Report, (Exhibit CHE -2 and USA -7), p. 25.  
92 Steel Report, (Exhibit CHE -2 and USA -7), p. 27.  
93 Steel Report, (Exhibit CHE -2 and USA -7), p. 27.  
94 Steel Report, (Exhibit CHE -2 and USA -7), p. 29.  
95 Steel Report, (Exhibit CHE -2 and USA -7), p. 30.  
96 Steel Report, (Exhibit CHE -2 and USA -7), pp. 31 -32. 
97 Steel Report, (Exhibit CHE -2 and USA -7), p. 33.  
98 Steel Report, (Exhibit CHE -2 and USA -7), p. 35.  
99 Steel Re port, (Exhibit CHE -2 and USA -7), p. 36.  
100 Steel Report, (Exhibit CHE -2 and USA -7), p. 36.  
101 Steel Report, (Exhibit CHE -2 and USA -7), p. 37.  
102 Steel Report, (Exhibit CHE -2 and USA -7), p. 40.  
103 Steel Report, (Exhibit CHE -2 and USA -7), p. 41.  
104 Steel Report, (Exhibit CHE -2 and USA -7), p. 41.  
105 Steel Report, (Exhibit CHE -2 and USA -7), p. 46.  WT/DS556/R  
 
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  rates are well below economically viable levels106; and (iv)  declining steel production 
facilities limits capacity available for a national emergency .107  
d. Global excess steel capacity is a circumstance that contributes to the weakening of the 
domestic economy because108: (i) free markets globally are adversely affecte d by 
substantial chronic global excess steel production led by China109; and (ii) increasing global 
excess steel capacity will further weaken the internal economy as US steel producers will 
face increasing import competition.110 
2.15.   In the  Steel Report , the US S ecretary of Commerce  recommend s, due to the threat of steel 
imports to US national security, that the US President take immediate action by adjusting the level 
of imports through quotas or tariffs on steel imported into the United  States , as well as direct  
additional actions to keep the US steel industry financially viable and able to meet US national 
security needs. The Steel Report states  that the quota or tariff imposed should be sufficient, after 
accounting for any exclusions, to enable the US steel pro ducers to be able to operate at about 80% 
or better of the industry's capacity utilization rate based on available capacity in 2017.111 
2.16.   In particular, the Steel Report recommends the following two alternative courses of action:  
a. Global quota or tariff : The Steel Report recommends that this should be done by 
(i) imposing  a quota of 63% of the 2017 import level on all imported steel products, 
applied on a country and steel product basis, or (ii) applying  a 24% tariff on all imported 
steel products, in addi tion to any anti -dumping  or countervailing duty collections applicable 
to any imported steel product .112 
b. Tariff on a subset of countries : The Steel Report alternatively recommends applying  a 53% 
tariff on all imported steel products from Brazil, the Republi c of Korea , the 
Russia n Federation , Türkiye , India, Viet  Nam, China, Thailand, South  Africa , Egypt, 
Malaysia , and Costa Rica, in addition to any anti -dumping  or countervailing duty collections 
applicable to any steel products from th ese countries. All other countries would be limited 
to 100% of their 2017 import level.113 
2.17.   The Steel Report further states  that, in selecting an alternative, the US President could 
determine that specific countries should be exempted from the proposed 63% quota or 24% tariff 
by granting those specific countries 100% of their prior imports in 2017, based on an overriding 
economic or security interest of the United  States .114 The Steel Report also recommends an appeal 
process by which affected US parties could seek an exclusion from the tariff or quota imposed and 
notes that  the US Secretary of Commerce would grant such exclusions based on demonstrat ing (a) 
lack of sufficient US production capacity of comparable products or (b) specific national security 
based considerations.115 
2.1.3   The Aluminium Report  
2.18.   The Aluminium Report  of 17  January  2018 summarizes the findings of an investigation 
conducted by the US Department of Commerce purs uant to Section  232 into the effect of imports of 
alumin ium products on the national security of the United  States . 
 
106 Steel Report, (Exhibit CHE -2 and USA -7), p. 47.  
107 Steel Report, (Exhibit CHE -2 and USA -7), p. 49.  
108 Steel Report, (Exhibit CHE -2 and USA -7), p. 51.  
109 Steel Report, (Exhibit CHE -2 and USA -7), p. 51.  
110 Steel Report, (Exhibit CHE -2 and USA -7), p. 53.  
111 Steel Report, (Exhibit CHE -2 and USA -7), p. 58.  
112 Steel Report, (Exhibit CHE -2 and USA -7), pp. 59 -60. 
113 Steel Report, (Exhibit CHE -2 and USA -7), p. 60.  
114 Steel Report, (E xhibit CHE -2 and USA -7), p. 60.  
115 Steel Report, (Exhibit CHE -2 and USA -7), p. 61.  WT/DS556/R  
 
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  2.1.3.1   Initiation and investigation process  
2.19.   On 26 April 2017, the US Secretary of Commerce initiated an investigation to determine the 
effect of imported alumin ium on national security under Section  232.116 The US Department of 
Commerce notified the US Department of Defense  of the investigation  in a letter dated  
26 April 2017.117 On 27  April 2017, the US President signed a Presidential Memorandum directing 
the US Secretary of Commerce to proceed expeditiously in conducting his investigation and submit 
a report on his findings to the President.118 On 3 May 2017, the  US Department of Commerce invited 
interested parties to submit written comments, opinions, data, information, or advice.119 The US 
Department of Commerce held a public hearing to elicit further information concerning this 
investigation in Washington, D .C., on 22  June 2017.120 
2.20.   In addition to the notification to the US Department of Defense  on 26  April 2017, the US 
Department of Commerce consulted with the US Department of Defense regarding methodological 
and policy questions that arose  during the investigati on and also consulted with other agencies of 
the US Government with expertise and information regarding the aluminium industry, including the 
US Geological Survey of the Department of the Interior and the US International Trade 
Commission.121 
2.1.3.2   Product scope  
2.21.   The Aluminium Report  sets out its product scope in the following table: 
Table  1: Harmonized Tariff Schedule for Aluminum Products122 
Harmonized Tariff Schedule for Aluminum Products  
HTS Code  Description  
7601 Unwrought aluminum  
7604 Aluminum bars, rods and profiles  
7605 Aluminum wire  
7606 Aluminum plates, sheets, and strip, of a thickness exceeding 
0.2 mm* 
7607 Aluminum  foil (whether or not printed, or backed with paper, 
paperboard, plastics or similar backing materials) of a thickness 
(excluding any backing) not exceeding 0.2  mm 
7608 Aluminum tubes and pipes  
7609 Aluminum tube and pipe fittings  
7616.99.51.60  Other ar ticles of aluminum: castings  
7616.99.51.70  Other articles of aluminum: forgings  
*Note: This category includes can sheet for aluminum can packaging  
 
2.1.3.3   Findings and recommendations by the US Secretary of Commerce  
2.22.   The Aluminium Report  refers to the  nonexclusive lists of factors  in Section  232 and its 
implementing regulations  that the US Secretary of Commerce  must consider in evaluating the effect 
of imports on national security.123 The Aluminium Report  further refers to a determination by the US 
Department of Commerce in 2001 that (a) national defen ce includes both defen ce of the 
United  States  directly and its ability to project military capabilities globally, and (b) the term 
"national security" can be interpreted more broadly to include the general security and welfare of 
 
116 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 18.  
117 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 18.  
118 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 18.  
119 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 19.  
120 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 19.  
121 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 19.  
122 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 20.  
123 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 12.  WT/DS556/R  
 
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  certain industries, beyond those necessary to satisfy national defen ce requirements that are critical 
to the minimum operations of the economy and government .124 
2.23.   In the Aluminium Report , the US Secretary of Commerce determined  that the present 
quantities and circumstance of alumin ium imports were "weakening our internal economy" and 
"threaten to impair the national security as defined in Section  232".125 According to the Aluminium 
Report , the continued rise in levels of imports of foreign alumin ium threatens to impair US national 
security by placin g the US alumin ium industry at substantial risk of losing the capacity to produce 
alumin ium and alumin ium products needed to support critical infrastructure and national defen ce.126 
The Aluminium Report  refers to excess production and capacity in China as a major factor 
contributing to the decline in US domestic alumin ium production and loss of domestic production 
capacity.127  
2.24.   In arriving at  this general conclusion , the Aluminium Report  relies on finding s including : 
a. Alumin ium is essential to US national security because128: (i) alumin ium is required for US 
national defen ce129; and (ii)  alumin ium is required for US critical infrastructure .130 
b. Domestic  production of alumin ium is essential to national security .131 
c. Domestic  alumin ium production capacity  is declining  because132: (i) the United  States  is a 
relatively high -cost producer133; and (ii)  alumin ium smelters are permanently shutting 
down .134 
d. Domestic  production is well below demand .135 
e. US imports of alumin ium are increasing  in aggregate136 and in particular , imports  of 
(i) unwrought aluminium137; (ii) aluminium  bars, rods and profiles138; (iii)  aluminium  
plate, sheet and strip139; (iv) aluminium  foil140; (v) aluminium  pipes and tubes141; and (vi) 
aluminium  castings and forgings .142 
f. US aluminium  exports are declining.143 
g. The United  States ' import to export ratio  for the aluminium  product categories subject to 
this investigation is high .144 
 
124 Aluminium Report, (Exhibit CHE -5 and USA -8), pp. 12-13 (referring to Department of Commerce, 
Bureau of Export Administration: The Effect of Imports of Iron Ore and Semi -Finished Steel on the National 
Security, October 2001) . The Aluminium Rep ort further clarifies that while it uses these interpretations of 
"national defense" and "national security", it refers to the more recent 16 critical infrastructure sectors 
identified in Presidential Policy Directive 21 instead of the 28 critical industry  sectors used by the Bureau of 
Export Administration in the 2001 Report . (Ibid. p. 13).  
125 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 104.  
126 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 104.  
127 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 104.  
128 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 23.  
129 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 24.  
130 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 36.  
131 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 39.  
132 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 40.  
133 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 41.  
134 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 48.  
135 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 59. 
136 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 63.  
137 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 70.  
138 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 71.  
139 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 72.  
140 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 73.  
141 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 74.  
142 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 75.  
143 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 75.  
144 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 84.  WT/DS556/R  
 
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  h. Aluminium  imports are impacting  the welfare of the US alumin ium industry  because :145 
(i) employment  in the aluminium  industry is declining  as several smelters were either 
permanently shut down  or temporarily idled146; (ii) the financial status of the US 
alumin ium industry  is poor147; (iii) research and development expenditures are falling148; 
(iv) capital expenditures for the aluminium  industry  are increasing149; and (v)  aluminium  
prices have dropped sharply .150 
2.25.   In the Aluminium Report , the US Secretary of Commerce recommends , due to the threat of 
aluminium imports to US national security,  that the US President take immediate action by adjusting 
the level of these imports.151 The recommended  adjustments would be imposed on imports of: 
(i) unwrought alumin ium (Harmonized Tariff Schedule (HTS) Code 7601); (ii) alumin ium castings 
and forgings ( HTS Codes 7616.99.51.60 and 7616.99.51.70); (iii) alumin ium plate, sheet, strip, and 
foil (flat -rolled products) (HTS Codes 7606 and 7607); (iv) alumin ium wire (HTS Code 7605); 
(v) alumin ium bars, rods and profiles (HTS Code 7604); (vi) alumin ium tubes and  pipes (HTS Code 
7608); and (vii) alumin ium tube and pipe fittings (HTS Code 7609) based on 2017 annualized 
imports in those categories.  The Aluminium Report  states that the recommended quotas or tariffs 
would be designed, even after any exemptions (if gra nted), to enable US aluminium producers to 
utilize an average of 80 % of their production capacity.152  
2.26.   In particular, the Aluminium Report  recommends the following  two alternative courses of 
action : 
a. Global quota o r tariff : The Aluminium Report  recommends that action  should be taken  by 
imposing on unwrought alumin ium and the other alumin ium product categories  (i) a quota 
of 86.7%  or (ii)  a tariff rate of 7.7 % in addition to any anti -dumping  or countervailing duty 
collections applicable to such product s.153 
b. Tariff on a subset of countries : The Aluminium Report  alternatively recommends applying 
a 23.6% tariff on all imported aluminium products from China ; Hong Kong,  China;  the 
Russia n Federatio n; Venezuela ; and Viet  Nam; in addition to anti -dumping  or 
countervailing duty collections applicable to aluminium  products from these countries. All 
other countries would be limited to 100% of their 2017 import volumes .154  
2.27.   The Aluminium Report  further states  that, in selecting an alternative, the US President could 
determine that specific countries should be exempted from the proposed quota by granting those 
specific countries 100% of their prior imports in 2017 or exempting them entirely, based  on an 
overriding economic or security interest of the United  States , which could include their willingness 
to work with the United  States  to address global excess capacity and other challenges facing the US 
alumin ium industry.155 The Aluminium Report  also recommends an appeal process by which affected 
US parties could seek an exclusion from the tariff or quota imposed and notes that  the US Secretary 
of Commerce would grant exclusions based on demonstrating  (a) a lack of sufficient US  production 
capacity of comparable products or ( b) specific national security based considerations.156 
2.1.4   Presidential Proclamations  
2.28.    The US Secretary of Commerce transmitted the Steel Report and the Aluminium Report  to 
the US President on 11  January  2018 and 19  January  2018 respectively.157  
 
145 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 89.  
146 Aluminium Report, (Exhibit CHE -5 and USA-8), p. 89.  
147 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 91.  
148 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 95.  
149 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 97.  
150 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 100.  
151 Aluminium Report, (Exh ibit CHE -5 and USA -8), p. 107.  
152 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 107.  
153 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 108.  
154 Aluminium Report, (Exhibit CHE -5 and USA -8), pp. 108 -109. 
155 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 109.  
156 Aluminium Report, (Exhibit CHE -5 and USA -8), p. 109.  
157 Presidential Proclamation 9705, (Exhibit CHE -8 and USA -9), p. 11625; Presidential Proclamation 
9704, (Exhibit CHE -13 and USA -10), p. 11619.  WT/DS556/R  
 
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  2.29.   On 8  March  2018, the US President issued  two proclamations adjusting imports into the 
United  States : (a) Presidential Proclamation 9705 in relation to steel imports158 and ( b) Presidential 
Proclamation 9704 in relation to aluminium imports.159 The US President concurred with the findings 
in the Steel and Aluminium Report s, and pursuant to the recommendations in these reports, imposed 
additional import duties of 25% and 10 % respectively on certain steel and aluminium imports  from 
all countries , with exemption s for imports from Canada and Mexico.160 The US President welcomed  
any country with which the United  States  has a security relationship to discuss alternative ways to 
address the threatened impairment of US national security caused by imports from that country.161 
These proclamations also authori zed the US Secretary of Commerce to provide relief from the 
additio nal duties for any steel or any aluminium article  determined not to be produced in the 
United  States  in a sufficient and reasonably available amount or in a satisfactory quality, or based 
upon specific national security considerations.162 
2.30.   Following Presiden tial Proclamations 9704 and 9705, the  US President issued additional 
proclamations  adjusting steel and aluminium imports into the United  States . As described in greater 
detail  below , these proclamations removed the exemptions granted to Canada and Mexico163, 
granted various exemptions to certain WTO Members164, introduced import quotas on  steel and 
aluminium imports from certain countries165, and increased the additional import duty applicable to 
steel imports from Türkiye  to 50%.166 Subsequent proclamations al so note the existence of 
agreements between the United  States  and countries exempted from the additional duties.167 
2.2  Measures at issue  
2.31.   In its panel request, Switzerland  describes the measures at issue as  the import adjustments 
on certain steel products and certain aluminium products. Switzerland states in its panel request 
that the measures consist of the additional import duties and quotas as well as the exemptions and 
exclusions from such duties and quo tas.168 Switzerland further notes:  
a. Through Presidential Proclamations 9705 and 9711 of 8 and 22  March  2018, the 
United  States  imposed an additional import duty of 25% on certain steel products from all 
countries except Argentina, Australia, Brazil, Canada, the European  Union , the Republic of 
Korea  and Mexico, taking effect on 23  March 2018.169 
b. Through Presidential Proclamations 9704 and 9710 of 8 and 22  March  2018, the 
United  States  imposed an additional import duty of 10% on certain aluminium products 
from all countries except Argentina, Australia, Brazil, Canada, the Republic of Korea , the 
European  Union  and Mexico, taking effect on 23  March 2018.170 
c. Through Presidential Proclamatio ns 9739 and 9740 dated 30  April 2018, the President of 
the United  States exempted imports from Argentina, Australia, Brazil and the Republic of 
Korea  from the additional duties on certain steel products and exempted imports from 
Argentina, Australia and Br azil from the additional duties on certain aluminium products. 
The United  States  also extended the exemption  from the additional duties for imports from 
Canada, the European  Union  and Mexico until 31  May 2018.171 
 
158 Presidential Proclamation 9705, (Exhibit CHE -8 and USA -9), p. 11625.  
159 Presidential Proclamation 9704, (Exhibit CHE -13 and USA -10), p. 11619.  
160 Presidential Proclamation 9705, (Exhibit CHE -8 and USA -9), p. 11627; Presidential Proclamation 
9704, (Exhibit CHE -13 and USA -10), p. 11621.  
161 Presidential Proclamation 9 705, (Exhibit CHE -8 and USA -9), p. 1162 6; Presidential Proclamation 
9704, (Exhibit CHE -13 and USA -10), p. 1162 0. 
162 Presidential Proclamation 9705, (Exhibit CHE -8 and USA -9), p. 11627; Presidential Proclamation 
9704, (Exhibit CHE -13 and USA -10), p. 11621.  
163 See sections 2.2.1.2  and 2.2.2.2  below.  
164 See sections 2.2.1.2  and 2.2.2.2  below.  
165 See sections 2.2.1.3  and 2.2.2.3  below.  
166 See section 2.2.1.1  below.  
167 See sections 2.2.1.2  and 2.2.2.2  below.  
168 Switzerland's panel request , p. 2.  
169 Switzerland's panel request , p. 1.  
170 Switzerland's panel request , p. 1.  
171 Switzerland's panel request , pp. 1 -2. WT/DS556/R  
 
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  d. The United  States  has introduced quotas limi ting the quantities of steel imports from 
Argentina, Brazil and the Republic of Korea , pursuant to an agreement with those 
countries, and quotas limiting the quantities of aluminium imports from Argentina, 
pursuant to an agreement with that country.172 
e. Presidential Proclamations 9704 and 9705 of 8  March  2018 have authorized the US 
Secretary of Commerce to provide relief from the additional duties upon request of affected 
parties located in the United  States  if the steel or aluminium articles are determined n ot 
to be produced in the United  States  in a sufficient and reasonably available amount or of 
a satisfactory quality or based upon specific national security considerations. On 
19 March  2018, the  US Department of Commerce issued an Interim Final Rule introducing 
supplements No.  1 and No.  2 to 15 CFR Part 705 which set forth the requirements and 
process for how a directly affected party located in the United  States  may submit requests 
for product exclusions. The  US Department of Commerce issued on 11  September  2018 
an Interim Final Rule revising supplements No.  1 and No.  2 to 15 CFR Part 705.  Through 
Presidential Proclamations 9777 and 9776 of 29  August  2018, the  US President has 
authorized the Secretary of Commerce to provide relief from the quotas appl icable to steel 
products and aluminium products from those countries subject to quotas, in certain 
circumstances, including where they are determined not to be produced in the 
United  States  in a sufficient and reasonably available amount or of a satisfacto ry quality, 
or upon specific national security considerations. The procedures for such requests for 
exclusion are included in the Interim Final Rule as published on 11  September  2018.173 
2.32.   According to Switzerland, these measures have been imposed by and are evidenced by the 
following documents, considered alone and in any combination174: 
a. Presidential Proclamation 9704 of 8  March  2018; 
b. Presidential Proclamation 9705 of 8  March  2018; 
c. Presidential Proclamation 9710 of 22  March  2018; 
d. Presidential Proclamation 9711 of 22  March  2018; 
e. Presidential Proclamation 9739 of 30  April 2018; 
f. Presidential Proclamation 9740 of 30  April 2018; 
g. Presidential Proclamation 9758 of 31  May 2018; 
h. Presidential Proclamation 9759 of 31  May 2018; 
i. Presidential Proclamation 97 72 of 10  August  2018; 
j. Presidential Proclamation 9776 of 29  August  2018; 
k. Presidential Proclamation 9777 of 29  August  2018; 
l. The Effect of Imports of Steel on the National Security, An Investigation Conducted Under 
Section  232 of the Trade Expansion Act of 1962, as Amended (U S Department of 
Commerce,  11 January  2018) ; 
m. The Effect of Imports of Aluminum on the National Security, An Investigation Conducted 
Under Section  232 of the Trade Expansion Act of 1962, as Amended ( US Department of 
Commerce, 17 January  2018); 
 
172 Switzerland's panel request , p. 2. 
173 Switzerland's panel request , p. 2.  
174 Switzerland's panel request , p. 2.  WT/DS556/R  
 
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  n. Interim Final Rule regarding the Requirements for Submissions Requesting Exclusions 
from the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel into 
the United  States  and Adjusting Imports of Aluminum into the United  States ; and the Filing 
of Objections to Submitted Exclusion Requests for Steel and Aluminum ; and  
o. Interim Final Rule regarding Submissions of Exclusions Requests and Objections to 
Submitted Requests for Steel and Aluminum .  
2.33.   In its panel request , Switzerland states that it is also challenging  any additional measures 
amending, superseding, supplementing, updating, extending, replacing , or implementing the 
measures referred to above as well as any exemptions or exclusions applied.175 
2.34.   In addition to the above, Switzerland considers that Section  232, as repeatedly interpreted 
by the United  States ' authorities, including in the context of th e above and other measures, is 
inconsistent with the United  States ' obligations under the covered agreements . Switzerland 
considers that Section  232 as interpreted by the United  States ' authorities provides for the 
imposition of measures (such as additiona l import duties or quotas) that restrict imports from other 
WTO Members to shield the domestic production in the United  States  from competition with foreign 
products on the grounds of an alleged threat to the national security in a manner inconsistent with  
the disciplines set out in the GATT  1994 and the Agreement on Safeguards .176 In the alternative, 
Switzerland submits that the ongoing use of Section  232 by the United  States' authorities so as to 
afford protection to the domestic production by restricting imports from other WTO Members on the 
grounds of an alleged threat to US national security is inconsistent with the United  States ' obligations 
under the covered agreements.177 
2.35.   In response to qu estion s from the Pane l, Switzerland further  clarifies that it is challenging two 
sets of measures. First, Switzerland challenges the import adjustment measures imposed by the 
United  States  on imports of steel and aluminium products . These two  measures178 consist of different 
elements including the  additional  import duties,  the import quotas,  the country exemptions , and the 
product exclusions from such duties and quotas. Switzerland further  argues that t he "country 
exemptions " element includes the seeking of and/or the conclusion of agreements by the 
United  States with certain countries with a view to exempt those countries from the duties and/or 
quotas.  Second, Switzerland challenges Section  232 as repeatedly interpreted by the US authorities 
and, in the alternative, the ongoing use of Section  232 by the US au thorities so as to afford 
protection to the domestic production by restricting imports from other WTO Members on the 
ground s of an alleged threat to US national security.179 
2.36.   The following diagram depicts the  Panel's understanding of Switzerland's  presentation  of the  
measures at issue and aspects of each measure  at the time of the establishment of the Panel  on 
4 December  2018:  
 
175 Switzerland's panel request , p. 3.  
176 Switzerland's panel request , p. 5.  
177 Switzerland's panel request , p. 6.  
178 Switzerland's second written submission, para.  8, fn 1 ("Switzerland challenges independently the 
import adjustment measure on steel products on the one hand and the import adjustment measure on 
aluminium products on the other hand "). 
179 Switzerland's response to Panel question No.  1.a; second written submission,  paras.  8 and 17.  WT/DS556/R  
 
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  Figure 1: Switzerland's presentation of measures at issue at the time of Panel 
establishment  
 
2.37.   The following sections describe the measures that Switzerland  challenges in this dispute . 
2.2.1   The " import adjustment measure " on steel product s 
2.2.1.1   Additional import duties  
2.38.   Pursuant to Presidential Proclamation 9705 of 8  March  2018,  all imports of steel products  as 
specified in the Proclamation shall be subject to an additional 25% ad valorem duty. According to 
this Proclamation, t his rate of duty is in addition to any other duties, fees, exactions, and charges 
applicable to such imported steel articles .180 
2.39.   Subsequently, Presidential Proclamation 9772 of 10  August  2018 imposed a 50% ad valorem  
duty on steel articles imported from Türkiye , beginning on 13 August  2018.181 
 
180 Presidential Proclamation 9705, (Exhibit CHE -8 and USA -9), p. 11627.  
181 Presidential Proclamation 9772, ( Exhibit CHE -12), p. 40430.  
WT/DS556/R  
 
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  2.2.1.2   Country exemptions  
2.40.   Presidential Proclamation 9705 of 8  March  2018 sets out that the additional 25% ad valorem  
duty on imports of steel shall not be applied to imports from Canada and Mexico.182 
2.41.   Subsequently, Presidential Proclamation 9711 of 22  March  2018 amended Presidential 
Proclamation 9705 and introduced exemptions for Australia, Argentina, the Republic of Korea , Brazil, 
and the member countries of the European  Union , in addition to those already granted to Canada 
and Mexico , until 1 May 2018 .183  
2.42.   Presidential Proclamation 9740 of 30  April 2018 introduced further modifications by  (a) 
extending the exemptions granted to Canada, Mexico , and the European  Union  until 1  June 2018184; 
(b) extending the exemption s for Argentina, Australia , and Brazil until an unspecifi ed date185; and 
(c) extending the  exemption to the Republic of Korea  until an unspecified date .186 
2.43.   Presidential Proclamation 9759 of 31  May 2018 further extended the  exemptions from the 
additional import duties  granted to Argentina, Australia , and Brazil  until an unspecified date .187 This 
Proclamation did not extend the exemptions  for Canada, Mexico , and the European  Union . 
2.44.   Presidential Proclamation 9705 welcomed  any country with which  the United  States  has a 
security relationship to d iscuss alternative ways to address the threatened impairment of US national 
security caused by imports from that country.188 Several of the Presidential Proclamations set out 
above  refer to the existence of certain agreements reached between the United  States  and some 
countries, including Australia, Argentina, Brazil, and the Republic of Korea , in respect of "satisfactory 
alternative means" to address the threatened impairment of US national security . 
2.45.   With regard to the Republic of Korea , Presidential P roclamation 9740 of 30  April 2018 states  
that: 
The United  States  has successfully concluded discussions with the Republic of Korea  on 
satisfactory alternative means to address the threatened impairment to our national 
security posed by steel articles impor ts from the Republic of Korea . The United  States  
and South Korea have agreed on a range of measures, including measures to reduce 
excess steel production and excess steel capacity, and measures that will contribute to 
increased capacity utilization in the United  States , including a quota that restricts the 
quantity of steel articles imported into the United  States  from South Korea.189 
2.46.   With regard to Argentina, Australia, and Brazil, this same Proclamation states  that "[t]he 
United States has agreed in principle with Argentina, Australia, and Brazil on satisfactory alternative 
means to address the threatened impairment to our national security posed by steel articles imported 
from these countries".190 Presidential Proclamation 9759 of 31  May 2018 further states  that "[t]he 
United  States  has agreed on a range of measures with these countries, including measures to reduce 
excess steel production and excess steel capacity, measures that will contribute to increased capacity 
utilization in the United  States , and measures to prevent the transhipment  of steel articles and avoid 
import surges".191 
2.2.1.3   Import quotas  
2.47.   Presidential Proclamation 9740 of 28  April 2018 describes  how the United  States  and the 
Republic of Korea  agreed upon a quota on steel imports.192 Part A of the Annex to this Proclamation 
 
182 Presidential Proclamation 9705, (Exhibit CHE -8 and USA -9), pp. 11626 -11627 . 
183 Presidential Proclamation  9711, (Exhibit CHE -9 and USA -11), pp. 13361  and 13363 . 
184 Presidential Proclamation 9740, (Exhibit CHE -10 and USA -13), p. 20685.  
185 Presidential Proclamation 9740, (Exhibit CHE -10 and USA -13), p. 20684.  
186 Presidential Proclamation 9740, (Exhibit CHE-10 and USA -13), p. 20684.  
187 Presidential Proclamation 9759, (Exhibit CHE -11 and USA -15), p. 25858.  
188 Presidential Proclamation 9705, (Exhibit CHE -8 and USA -9), p. 11626 . 
189 Presidential Proclamation 9740, (Exhibit CHE -10 and USA -13), p. 20683.  
190 Preside ntial Proclamation 9740, (Exhibit CHE -10 and USA -13), p. 20684.  
191 Presidential Proclamation 9759, (Exhibit CHE -11 and USA -15), pp. 25857 -25858 .  
192 Presidential Proclamation 9740, (Exhibit CHE -10 and USA -13), p. 2068 3. WT/DS556/R  
 
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  sets out  the amendments to US Note 16 of subchapter III of chapter 99 of the Harmonized Tariff 
Schedule of the United  States  (HTSUS ) that provide for this quota treatment193, and Part B of the 
Annex to the Proclamati on details the  annual  aggregate limits for the applicable quotas.194  
2.48.   Presidential Proclamation 9759 of 31  May 2018 introduced quotas on steel products from 
Argentina and Brazil .195 The Annex to this Proclamation details the annual aggregate limits for the 
applicable quotas.196 
2.2.1.4   Product exclusions  
2.49.   Presidential Proclamation 9705  of 8 March  2018 authorized  the US Secretary of Commerce to 
provide relief from the additional duties  set out therein  for any steel article determined not to be 
produced in the United  States  in a sufficient and reasonably available amount or of a satisfactory 
quality and also to provide such relief based on specific national security considerations.197 
2.50.   On 19  March  2018, the US Department of Commerce issued the requirements for submissions 
requesting exclusions from the remedies instituted in the Presidential Proclamations adjusting 
imports of steel and alumin ium into the United  States  (March Interim Final Rule).198 This document 
specifies the requirements and process by which parties in the United  States  may submit requests 
for exclusions from the duties instituted by the US President, including how parties in the 
United  States  may submit objections to exclusion  requests. It further identifies the relevant time 
periods for submitting such exclusion requests and any objections to those requests, the method for 
submitting such requests, and the information that must be included in such requests and 
objections .199 
2.51.   On 11 September  2018, US Department of Commerce issued a document titled " Submissions 
of Exclusion Requests and Objections to Submitted Requests for Steel and Aluminum" (September 
Interim Final Rule).200 This document introduces revisions to the requirements set out in the March 
Interim Final Rule and "changes to the exclusion processes in this rule … informed by both the 
comments received in response to the March 19 rule and the Department's experience with 
managing the exclusion process".201 According to this  document, the modifications were aimed at 
improving transparency, effectiveness , and fairness  of the product exclusion process , including by 
adding a rebuttal and surrebuttal process.202 
2.52.   Presidential Proclamation 9777 of 29  August  2018 authorized the  US Secretary of Commerce 
to provide relief from quantitative limitations on steel articles adopted pursuant to Section  232, 
including those set forth in Presidential Proclamation s 9740 and 9759, on the same basis as the 
Secretary is authorized to provide relief from the duty established in Presidential Proclamation 
9705.203  
2.2.2   The "import adjustment measure " on alumin ium products  
2.2.2.1   Additional import duties  
2.53.   Pursuant to Presidential Proclamation 9704 of 8  March  2018, all imports of alumin ium articles 
as specified  in the Proclamation  shall be subject to an additional 10% ad valorem  duty. According 
 
193 Presidential Proclamation 9740, (Exhibit CHE -10 and USA -13), p. 20685.  
194 Presidential Proclamation 9740, (Exhibit CHE -10 and USA -13), pp. 20697 -20705.  
195 Presidential Proclamation 9759, (Exhibit CHE -11 and USA -15), pp. 25857 -25858.  
196 Presidential Proclamation 9759, (Exh ibit CHE -11 and USA -15), p. 25861. 
197 Presidential Proclamation 9705, (Exhibit CHE -8 and USA -9), p. 11627.  Presidential Proclamation 
9711 of 22  March  2018 amended Presidential Proclamation 9705 of 8  March  2018 by introducing the following 
language: " Such re lief may be provided to directly affected  parties on a party -by-party basis taking into 
account the regional availability  of particular articles, the ability to transport articles within the United  States , 
and any other factors as the Secretary deems appro priate ". (Presidential Proclamation 9711, (Exhibit CHE -9 
and USA -11), p. 13364).  
198 March Interim Final Rule , (Exhibit CHE-20 and USA-20), pp. 12106 -12112 . 
199 March Interim Final Rule, ( Exhibit CHE-20 and USA-20), p. 12110.  
200 September Interim Final Rule, (Exhibit CHE-22 and USA-21), pp. 46026 -46065 . 
201 September Interim Final Rule, (Exhibit CH E-22 and USA-21), p. 46027.  
202 September Interim Final Rule, ( Exhibit CH E-22 and USA-21), p. 46027.  
203 Presidential Proclamation 9777, (Exhibit CHE -23 and USA -18), p. 45026.  WT/DS556/R  
 
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  to this Proclamation, this rate of duty is in addition to any other duties, fees, exactions, and charges 
applicable to such imported alumin ium articles.204  
2.2.2.2   Country exemptions  
2.54.   Presidential Proclamation 9704 of 8  March  2018 sets out that  the additional 10% ad valorem  
duty on imports of aluminium  shall not be applied to  imports from Canada and Mexico.205  
2.55.   Subsequently, Presidential Proclamation 9710 of 22  March  2018 amended Presidential 
Proclamation 9704  and introduced exemptions for Australia, Argentina, the Republic of Korea , Brazil, 
and the member countries of the European  Union , in addition to those already granted to Canada 
and Mexico, until 1 May 2018.206  
2.56.   Presidential Proclamation 9739 of 30  April 2018 introduced further modifications by ( a) 
extending the exemptions granted to Canada, Mexico , and the European  Union  until 1  June 2018207; 
(b) extending the exemption for  Argentina, Australia , and Brazil until an unspecified date 208; and 
(c) ending the ex emption  granted  to the Republic of Korea .209 
2.57.   Presidential Proclamation 9758 of 31  May 2018 further extended the exemptions from the 
additional import duties  granted to Argentina and Australia  until an unspecified date .210 This 
Proclamation did not extend the exemptions for Brazil, Canada, Mexico , and the European  Union .211 
2.58.   Presidential Proclamation 970 4 welcomed  any country with which the United  States  has a 
security relationship to discuss alternative ways to address the threatened impairment of US national 
security caused by imports from that country.212 Several of the Presidential Proclamations  set out 
above  refer to the existence of certain agreements reached between the United  States  and some 
countries, including Australia, Argentina, and Brazil , in respect of "satisfactory alternative means" 
to address the threatened impairment of US national security . 
2.59.   With respect to Argentina, Australia, and Brazil, Presidential Proclamation 9739 o f 
30 April 2018 states  that: 
The United  States  has agreed in principle with Argentina, Australia, and Brazil on 
satisfactory alternative means to address the threatened impairment to our national 
security posed by aluminum articles imported from these coun tries. I have determined 
that the necessary and appropriate means to address the threat to national security 
posed by imports of aluminum articles from Argentina, Australia, and Brazil is to extend 
the temporary exemption of these countries from the tariff  proclaimed in Proclamation 
9704, in order to finalize the details of these satisfactory alternative means to address 
the threatened impairment to our national security posed by aluminum articles imported 
from these countries.213 
2.60.   Presidential Proclamation 9 758 of 31  May 2018 also states  that the United  States  agreed on 
a range of measures with Argentina and Australia, including measures to reduce excess alumin ium 
production and excess alumin ium capacity .214 
 
204 Presidential Proclamation 9704, (Exhibit CHE -13 and USA -10), p. 11621.  
205 Presidential Proclamation 9704, (Exhibit CHE -13 and USA -10), pp. 11620-11621 . 
206 Presidential Proclamation 9710, (Exhibit CH E-14 and USA -12), p. 13357 . 
207 Presidential Proclamation 9739, (Exhibit CHE -15 and USA -14), p. 20678.  
208 Presidential Proclamation 9739, (Exhibit CHE -15 and USA -14), pp. 20677 -20678.  
209 Presidential Proclamation 9739, (Exhibit CHE -15 and USA -14), pp. 20678 -20679.  
210 Presidential Proclamation 9758, (Exhibit CHE -16 and USA -16), pp. 25849 -25850.  
211 Presidential Proclamation 9758, (Exhibit CHE -16 and USA -16), p. 25850.  
212 Presidential Proclamation 9704, (Exhibit CHE -13 and USA -10), p. 11620. 
213 Presidential Pr oclamation 9739, (Exhibit CHE -15 and USA -14), pp. 20677 -20678.  
214 Presidential Proclamation 9758, (Exhibit CHE -16 and USA -16), pp. 25849 -25850.  WT/DS556/R  
 
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  2.2.2.3   Import quotas  
2.61.   Presidentia l Proclamation 9758 of 31  May 2018 introduced quota s for aluminium products 
from Argentina.215 The Annex to this Proclamation details the annual aggregate limits for the 
applicable quotas.216 
2.2.2.4   Product exclusions  
2.62.   Presidential Proclamation 9704 of 8 March  2018 authorized  the US Secretary of Commerce to 
provide relief from the additional duties set out therein for any alumin ium article determined not to 
be produced in the United  States  in a sufficient and reasonably available amount or of a satisfactory 
quality and also to provide such relief based on specific national security considerations.217 
2.63.   On 19  March 2018, the US Department of Commerce issued the requirements for submissions 
requesting exclusions from the remedies instituted in the Presidential Proclamations adjusting 
imports of steel and alumin ium into the United  States .218 This document specifies the requirements 
and process by which parties in the United  States  may submit requests for exclusions from the duties 
instituted by the US President, including how parties in the United  States  may submit objections to 
exclusion req uests. It further identifies the relevant time periods for submitting such exclusion 
requests and any objections to those requests, the method for submitting such requests, and the 
information that must be included in such requests and objections .219 
2.64.   On 11  September  2018, US Department of Commerce issued a document titled " Submissions 
of Exclusion Requests and Objections to Submitted Requests for Steel and Aluminum".220 This 
document introduces revisions to the requirements set out in the March Interim Final Rule and 
"changes to the exclusion processes in this rule … informed by both the comments received in 
response to the March 19 rule and the Department's experience with managing the exclusion 
process".221 According to this document, the modifications were a imed at improving transparency, 
effectiveness , and fairness  of the product exclusion process , including by adding a rebuttal and 
surrebuttal process.222 
2.65.   Presidential Proclamation 977 6 of 29 August  2018 authorized the  US Secretary of Commerce 
to provide relief from quantitative limitations on alumin ium articles adopted pursuant to Section  232, 
including those set forth in Presidential Proclamation 975 8, on the same basis as the Secretary is 
authorized to provide relief  from the duty established in Presidential Proclamation 970 4.223 
2.2.3   Section  232 as  "repeatedly"  interpreted  
2.66.   Switzerland also challenges Section  232 as repeatedly interpreted by US authorities. 
According to Switzerland, this measure provides for the imposition of measures that restrict imports 
from other WTO Members in order to shield domestic production in the United  States  from 
competition with foreign products on the grounds of an alleged threat to its national security.224 
Switzerland clarifies that by challenging Section  232 as repeatedly interpreted, it is not challenging 
the legal act itself, i.e. Section  232, but rathe r the interpretation of that act by US authorities.225 
 
215 Presidential Proclamation 9758, (Exhibit CHE -16 and USA -16), pp. 25850 -25851.  
216 Presidential Proclamation 9758, (Exhibit CHE -16 and USA -16), pp. 25853-25855.  
217 Presidential Proclamation 9704, (Exhibit CHE -13 and USA -10), p. 11621.  Presidential Proclamation 
9710 of 22  March  2018 amended Presidential Proclamation 970 4 of 8 March  2018 by introducing the following 
language: " Such relief may be provided to directly affected  parties on a party -by-party basis taking into 
account the regional availability  of particular articles, the ability to transport articles within the United  States , 
and any other fact ors as the Secretary deems appropriate ". (Presidential Proclamation 9710, (Exhibit CHE -14 
and USA -12), p. 13358 ).  
218 March Interim Final Rule, (Exhibit CHE-20 and USA-20), pp. 12106 -12112 . 
219 March Interim Final Rule, ( Exhibit CHE-20 and USA-20), p. 12110.  
220 September Interim Final Rule, (Exhibit CHE-22 and USA-21), pp. 46026 -46065 . 
221 September Interim Final Rule,  (Exhibit CH E-22 and USA-21), p. 46027.  
222 September Interim Final Rule, ( Exhibit CH E-22 and USA-21), p. 46027.  
223 Presidential Proclamation 9776, ( Exhibit CHE-24 and USA-19), p. 45020. 
224 Switzerland's first written submission, para.  555. 
225 Switzerland's first written submission, para.  556. WT/DS556/R  
 
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  2.67.   Switzerland  considers  that this interpretation can be found226 in: (a) the Steel and Aluminium 
investigations and Reports227; (b) the decision of the US President pursuant to Section  232(c) 
following the Steel and Aluminium Reports, where the US President concurred with the findings of 
the US Secretary of Commerce and referred to import adjustment measures as a relief for domestic 
steel and aluminium industries228; (c) a number of statements by US authorities and officials229; and 
(d) the US investigation under Section  232 on imports of automobiles , including cars, SUVs, vans 
and light trucks , and automotive  Parts (the 2018 Autos Investigation)  as well as the information 
relating to the investigation concerning imports of automobiles .230 
2.2.4   Ongoing use of Section  232 
2.68.   In the alternative, Switzerland challenges the ongoing use of Section  232 by U nited States  
authorities so as to afford protection to d omestic production by restricting imports from other 
WTO Members on the grounds of an alleged threat to its national security.231 Switzerland argues 
that through this description of the measure at issue, Switzerland is referring  to the "action " of 
United States  authorities "using " Section  232 "so as to afford protection to the domestic production 
by restricting imports from other WTO members ". Switzerland notes that b y describing that use as 
"ongoing ", it refers to a "repeated " use that is "likely to continue in the future ".232 
2.69.   Switzerland considers that the existence of this measure is evidenced by : (a) the fact that 
Section  232 has been used by US authorities since 201 7 in order to protect domestic industry from 
competition with imported products under the disguise of protecting national security233; (b) the fact 
that the use of Section  232 is repeated and likely to continue in future investigations234; (c) US 
authorities ' position in the 2018 Autos Investigation235; (d) statements by US authorities and officials  
in the context of the 2018 Autos Investigation236; (e) the ongoing investigation into imports of 
titanium sponge237; and ( f) the fact that the ongoing us e of Section  232 will likely continue because 
it is likely to survive any challenge before US courts.238 
2.3  Measures  amended, modified , or replaced  after the establishment of the Panel  
2.70.   In its responses to questions from the Panel , Switzerland refers to  certain factual and legal 
developments of the measures at issue that occurred after Switzerland's request for the 
establishment of the Panel .239 Switzerland  requests the Panel to consider  within its terms of 
reference the following amended, modified, or rep laced measures240: 
a. Changes to the additional import duty for steel products applicable to imports from Türkiye 
from 50% ad valorem  to 25% ad valorem241; 
b. Exclusion of imports of steel and aluminium  products from Canada and Mexico from the 
additional import duties242; 
 
226 Switzerland's first written submission, para.  558. 
227 Switzerland's first written submissio n, para s. 559-560. 
228 Switzerland's first written submission, para.  561. 
229 Switzerland's first written submission, para.  562. 
230 Switzerland's first written submission, para.  564; Switzerland's opening statement at the first 
meeting of the Panel, para.  125. 
231 Switzerland's first written submission, para.  566.  
232 Switzerland's first written submission, para.  569. 
233 Switzerland's first written submission, para.  571. 
234 Switzerland's first written submission, para.  572. 
235 Switzerland's first written submission, para.  574. 
236 Switzerland's first written submission, para s. 575-576. 
237 Switzerland's opening statement at the first meeting of the Panel, para . 126. 
238 Switzerland's first written submission, para.  577. 
239 Switzerland 's response to Panel question No.  86. 
240 Switzerland's response to Panel question No.  86. 
241 Presidential Proclamation 9886, ( Exhibit CHE -77 and USA -230). 
242 presidential Proclamation 9894, (E xhibit CHE -73 and USA-233); Presidential Proclamation 9893, 
(Exhibit CHE -74 and USA -232). WT/DS556/R  
 
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  c. Additional import duties on the derivatives of steel and aluminium products243;  
d. Re-imposition of the 10% additional duties on imports of non -alloyed unwrought  
aluminium articles from Can ada244; and  
e. Changes to import quotas agreed between the United  States  and Brazil .245 
3  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
3.1.  In its panel request, Switzerland  requests that the Panel find that  the measures listed in its 
request  are inconsistent with the United  States ' obligations under the following provisions of the 
covered agreements246: 
a. Article  I:1 of the GATT  1994, because, by applying selectively the additional import duties 
on certain steel and aluminium products originatin g in different Members, including by 
providing exemptions or applying alternative means to certain countries, the United  States  
fails, with respect to customs duties and charges of any kind imposed on or in connection 
with importation and with respect to a ll rules and formalities in connection with 
importation, to accord immediately and unconditionally any advantage, favour, privilege 
or immunity granted to products originating in other countries to like products originating 
in Switzerland;  
b. Article  II:1(a) and (b) of the GATT  1994, because, through the measures at issue, the 
United  States  fails to accord to the commerce of most other WTO Members, including 
Switzerland, treatment no less favourable than that provided for in the appropriate part 
of the United  States ' Schedule of Concessions. The United  States  also fails to exempt the 
product s at issue from most WTO Members, including Switzerland, from ordinary customs 
duties in excess of those set forth and provided for in the United  States ' Schedule of 
Concessions and from all other duties or charges in excess of those imposed on the date 
of the GATT  1994 or those directly and mandatorily required to be imposed thereafter by 
legislation in force in the United  States  on that date;  
c. Article  X:3(a) of the GATT  1994, because the United  States  has failed and fails to 
administer its laws, regulation s, decisions and rulings in relation to the measures at issue 
in a uniform, impartial and reasonable manner;  
d. Article  XI:1 of the GATT  1994, because, through the measures at issue, the United  States  
has instituted restrictions other than duties, taxes or ot her charges, made effective 
through quotas, on the importation of products of the territory of other Members;  
e. Article  XIX:1(a) of the GATT  1994, because the United  States  has suspended tariff 
concessions and other obligations without the products at issue being imported into the 
territory of the United  States  in such increased quantities and under such conditions as to 
cause or to threaten serious injury to domestic producers in the United  States  of like or 
directly competitive products, as a result of unfo reseen developments and of the effect of 
the obligations incurred under the GATT  1994;  
f. Article  2.1 of the Agreement on Safeguards, because the United  States  applies safeguard 
measures to the products at issue without first having determined, pursuant to t he 
subsequent provisions of the Agreement on Safeguards, that such products are being 
imported into its territory in such increased quantities, absolute or relative to domestic 
production, and under such conditions as to cause or threaten to cause serious injury to 
the domestic industry that produces like or directly competitive products;  
 
243 Presidential Proclamation 9980, ( Exhibit CHE -72 and USA -225). 
244 Presidential Proclamation 10060, ( Exhibit CHE -75 and USA -234). 
245 Presidential Proclamation 10064, ( Exhibit CHE -76 and USA -235). 
246 Switzerland's panel request , pp. 3-6. WT/DS556/R  
 
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  g. Article  2.2 of the Agreement on Safeguards, because the United  States  does not apply the 
safeguard measures to imported products irrespective of their source;  
h. Article  3.1 of the Agreement on Safeguards, because the United  States  applies safeguard 
measures to the products in question without having properly conducted an investigation 
and published a report that sets forth findings and reasoned conclusions on all pertinent 
issues of fact and law;  
i. Article  4.1 of the Agreement on Safeguards, because the United  States  has not properly 
determined that there is serious injury, or threat thereof, to a domestic industry as 
provided for in that provision;   
j. Article  4.2 of the Agreem ent on Safeguards, because the United  States  has failed to 
properly evaluate all relevant factors having a bearing on the situation of the domestic 
industry; has failed to demonstrate the existence of a causal link between increased 
imports and serious inj ury or the threat thereof; has failed to ensure that the injury caused 
by factors other than increased imports was not attributed to increased imports; and has 
failed to publish a detailed analysis and demonstration of its conclusions;  
k. Article  5.1 of the A greement on Safeguards, because the United  States  is applying 
safeguard measures beyond the extent necessary to prevent or remedy serious injury and 
to facilitate adjustment;   
l. Article  7 of the Agreement on Safeguards, because the United  States  is applying safeguard 
measures without making provision for their application only for the period necessary to 
prevent or remedy serious injury and to facilitate adjustment, without limitation to four 
years, and without making provision for progressive liberali zation at regular intervals;  
m. Article  11.1(a) of the Agreement on Safeguards, because the United  States  has taken 
emergency action on imports of particular products as set forth in Article  XIX of the 
GATT  1994, without such action conforming with the provisions of  Article  XIX applied in 
accordance with the Agreement on Safeguards;  
n. Article  11.1(b) of the Agreement on Safeguards, because the United  States  has sought, 
taken or maintained voluntary export restraints, orderly marketing arrangements or any 
other similar measures on the export or the import side; and  
o. Articles 12.1, 12.2 and 12.3 of the Agreement on Safeguards and Article  XIX:2 of the 
GATT  1994, because the United  States  has failed to comply with any of the notification 
and consultation obligations set out in these provisions.  
3.2.  With respect to Section  232 as repeatedly interpreted by the United  States ' authorities and the 
ongoing use of Section  232, Switzerland considers that the measures violate:  
a. Articles I:1, II:1(a) and (b) and XI:1 of the GATT  1994 since the measure at issue provides 
for the imposition of import restrictions in a manner inconsistent with the disciplines set 
out in those provis ions; 
b. Article  XIX:1 of the GATT  1994 and Articles 2.1, 4.1 and 4.2 of the Agreement on 
Safeguards since the measure at issue provides for the imposition of restrictions on 
imports of products in order to protect the domestic industry, without examining whe ther 
the products at issue are being imported into the territory of the United  States  in such 
increased quantities and under such conditions as to cause or threaten to cause serious 
injury to the US domestic producers of like or directly competitive produc ts, as a result of 
unforeseen developments and of the effect of the obligations incurred under the 
GATT  1994; 
c. Article  3.1 of the Agreement on Safeguards since the measure at issue provides for the 
imposition of safeguard measures without conducting an inve stigation and publishing a 
report that sets forth findings and reasoned conclusions on all pertinent issues of fact and 
law; WT/DS556/R  
 
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  d. Articles 5.1 and 7 of the Agreement on Safeguards since the measure at issue does not 
provide for the imposition of safeguard measu res only to the extent and for such time as 
may be necessary to prevent or remedy serious injury and to facilitate adjustment and 
since it fails to provide that those measures cannot exceed four years and that they shall 
be progressively liberali zed at reg ular intervals;  
e. Articles 12.1, 12.2 and 12.3 of the Agreement on Safeguards and Article  XIX:2 of the 
GATT  1994 since the measure at issue does not provide for the notifications required under 
Articles 12.1 and 12.2 of the Agreement on Safeguards and does n ot provide for an 
opportunity for prior consultations as required under Article  12.3 of the Agreement on 
Safeguards and Article  XIX:2 of the GATT  1994; 
f. Article  11.1(a) of the Agreement on Safeguards since the measure at issue constitutes a 
mechanism of "emergency action" as set forth in Article  XIX of the GATT  1994 that does 
not conform with the provisions of that Article  and is not applied in accordance with the 
Agreement on Safeguards;  and 
g. Article  XVI:4 of the WTO  Agreement  since, through the measure at issue, the 
United  States  fails to ensure the conformity of its laws, regulations and administrative 
procedures with its obligations under the WTO  Agreement . 
3.3.  The United  States  requests that the Panel find that the United  States  has invoked it s essential 
security interests under Article  XXI(b) of the GATT  1994 and so report to the DSB.247 
4  ARGUMENTS OF THE PARTIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 23 of the Working Procedures adopted by the Pan el (see Annex  B). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of certain third parti es are reflected in their executive summaries, provided in 
accordance with paragraph 26 of the Working Procedures adopted by the Panel (see Annex  C).  
6  INTERIM REVIEW  
6.1.  On 29  June 2022, the Panel issued its Interim Report to the parties. On 3  August  2022, the 
parties submitted written requests for review of the Interim Report. Neither party requested an 
interim review meeting. On 31  August  2022, the parties submitted comments on each other's 
requests for review of the Interim Report.  
6.2.  In accordance with Article  15.3 of the DSU, this section of the Report sets out the Panel's 
response to the requests made at the interim review stage, including certain requests by the parties 
discussed in greate r detail below.  
6.3.  The Panel notes that the parties' requests for review of the Interim Report include requests to 
provide more detailed summaries of their arguments. Throughout the Report, the Panel has 
summarized the parties' arguments in order to facilita te understanding of the contested issues 
addressed in the Panel's reasoning and findings. The Panel has not comprehensively reproduced 
every aspect of the parties' arguments, which are more fully reflected in the executive summaries 
annexed to this Report.  Rather, the Panel has summarized the relevant arguments in the context of 
its own objective assessment of the matter before it, having regard for its mandate and discretion 
to make such findings as will assist the DSB in making the recommendations or ruli ngs provided for 
in the relevant covered agreements.  In this regard, it is generally within the discretion of a panel to 
decide which arguments or evidence it addresses or relies on in reaching its findings.248 Subject to 
the explanations and modifications described below, the Panel considers that the parties' arguments 
 
247 United  States ' first written submission, para.  187. 
248 See e.g. Appellate  Body Reports, Ukraine – Ammonium Nitrate , para.  6.42; US – COOL , para.  299; 
EC – Poultry , para.  135; EC – Hormones , para.  135. WT/DS556/R  
 
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  are adequately reflected and addressed in this Report, including the annexes thereto, to fulfil the 
requirements of the Panel's mandate under the DSU.249 
6.4.  In addition, the Panel has made typogr aphical and other editorial modifications in the Report, 
including in response to the parties' requests. The discussion below refers to the numbering of 
sections, paragraphs, and footnotes in the Final Report.  
6.1  Article  XIX of the GATT  1994  and the Agreement on Safeguards  
6.5.  The United  States  requests the Panel to include in paragraph 7.95  "additional support" for its 
conclusions regarding the terms "pursuant to" in Article  11.1(c) of the Agreement on Safeguards. In 
particular, the United  State s argues that the Panel's conclusions in this paragraph are supported by 
the ordinary meaning of the terms "sought, taken or maintained" in Article  11.1(c) . Switzerland 
requests that the Panel reject the United  States ' suggestion as it reflects the United  States ' 
arguments relating to the meaning of the terms "sought, taken or maintained" and should not be 
included in a paragraph setting out the Panel 's interpretation.  
6.6.  In section 7.8.2 of its Report, the Panel has examined the terms "pursuant to" in Article  11.1(c) 
considering their ordinary meaning and having regard for the relevant context provided by terms 
used elsewhere in the Agreement on Safeguards, including those that appear to convey a 
relationship of consistency with the requirements of another pro vision of the covered agreements. 
The Panel has further considered the use of terms in the three authentic language versions of the 
Agreement on Safeguards in accordance with the customary rules of interpretation of public 
international law. The Panel has also found support for its conclusions in the object and purpose of 
the Agreement on Safeguards, as expressed in its preamble, and the negotiating history of 
Article  11.1(c). Accordingly, the Panel does not consider it necessary to additionally address the  
United  States ' arguments concerning the terms "sought, taken or maintained" in Article  11.1(c) to 
determine the meaning of "pursuant to" in that provision.  
6.7.  The Panel has taken note of the United  States ' arguments concerning the meaning of "sought" 
in Art icle 11.1(c), which are related to the United  States ' contention that formal notification of 
safeguard measures to the WTO is a "condition precedent" to the applicability of safeguard 
disciplines. As part of its objective assessment of the legal characteri zation of the measures under 
Article  11.1(c), the Panel has taken into account the manner in which the measures at issue were 
notified to relevant WTO bodies or committees. Recalling the nature of the Panel's inquiry on the 
applicability of safeguard disci plines to the measures at issue, the Panel does not consider it 
necessary to address in further detail the United  States ' arguments on the meaning of "sought" in 
Article  11.1(c).  In this respect, the Panel additionally recalls its mandate and discretion to  make 
such findings as will assist the DSB in making the rulings and recommendations provided for in the 
relevant covered agreements.  
6.8.  The United  States  requests the Panel to revise paragraph 7.102  to accurately reflect its 
argument that "a key condition pr ecedent to the exercise of [the right to apply a safeguard measure] 
is that the Member has invoked Article XIX as the legal basis for its measure by providing notice in 
writing and affording affected Members an opportunity to consult." According to the Uni ted States , 
by suggesting "the United  States ' [contends] that, based on Article  XIX:2 of the GATT  1994, formal 
notification of safeguard measures to the WTO is a 'condition precedent' to the applicability of 
safeguard disciplines", the Panel misstates the United  States ' position.  Switzerland considers that 
this paragraph accurately reflects the United  States ' position regarding the "condition precedent" for 
the application of Article  XIX of the GATT  1994.  
6.9.  The Panel notes that, in its submissions, the United  States  refers variously to "notice", 
"invocation", and "invocation through notice" under Article  XIX:2 of the GATT  1994 as a "condition 
precedent" for applicability of safeguard disciplines. The Panel has accordingly retained its su mmary 
of the United  States ' arguments in this respect and revised the corresponding footnote to clarify the 
various terms used by the United  States  in its submissions to the Panel . 
 
249 See section 7.1 below.  WT/DS556/R  
 
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  6.2  Article  XXI(b) of the GATT  1994  
6.10.   The United  States  requests an addition to paragraph 7.124 of certain arguments it puts 
forward on the interpretation of Article  XXI(b), including its arguments on which phrase in 
Article  XXI(b) is modified by subparagraphs (i) and (ii) and the reconciliation of different language 
versions of Articl e XXI(b). The United  States  also requests that paragraph 7.125  include a more 
complete description of the complainant's arguments on the interpretation of Article  XXI(b). In 
addition, the United  States  does not object to Switzerland's request for further r eflection of its 
arguments in paragraph 7.125 and, should the Panel accept Switzerland's comment, requests that 
the Panel set out Switzerland's interpretation of Article  XXI on what is qualified by the term 
"consider". Switzerland suggests revisions to par agraph 7.125 to reflect its arguments on the 
interpretation of Article  XXI(b) more accurately. In response to the United  States ' requests, 
Switzerland considers that it is not necessary to add the additional explanation as suggested by the 
United  States . Switzerland considers that this paragraph accurately and sufficiently reflects the 
United  States ' arguments and the additional points raised by the United  States  are already covered 
in the Panel  Report . 
6.11.   Recalling its approach to reflecting the parties' arguments on the issues raised in this dispute, 
the Panel declines to expand the summaries of the parties' arguments in these paragraphs. In 
response to the United  States ' request, the Panel further notes that modification s to the Interim 
Report  discussed below include expanded reference to arguments that the United  States  requested 
to be reproduced in these paragraphs.  The Panel has also expanded the footnote citations to 
Switzerland's submissions with its arguments on the interpretation of Articl e XXI(b).  
6.12.   The United  States  requests that the Panel delete the footnote to paragraph 7.130  and 
instead address its substantive content in the body of the Report, particularly concerning the 
United  States ' arguments on the differences in the French and Spanish versions of Article  XXI(b) 
and the reconciliation of the three language versions of the text. In the United  States ' view, the 
Panel does not engage with these arguments and "misstates them in a footnote reference". The 
United  States  requests furthe r engagement with these arguments and, specifically, that the Panel 
"explain why it is incorrect to read the sentence [in Article  XXI(b)] as consisting of three alternatives" 
for each subparagraph. Switzerland proposes additions to this paragraph to reflec t its arguments 
and, in response to the United  States ' requests, does not object to moving the explanation in this 
footnote to the body of the text. However, Switzerland considers that given that the Panel addressed 
the meaning of the terms "which it consi ders" and the arguments made by the United  States , it is 
not necessary to include any additional explanation in the paragraph, as suggested by the 
United  States . 
6.13.   The Panel acknowledges the United  States ' indication in its request for interim review that it  
"agrees (in the interpretation that best reconciles the three language versions) with the Panel that 
each of the paragraphs 'describe[s] the action referred to in Article  XXI(b)', but mediated through 
the relative clause 'which it considers'." The Panel h as accordingly retained the statement of its 
understanding that the parties agree that the subparagraphs qualify and relate to the "action" in 
Article  XXI(b), notwithstanding some disagreement as to the precise basis for this conclusion. The 
Panel has also  expanded the summary of the United  States ' arguments regarding the reconciliation 
of texts in the three authentic language versions and its contention that, under this reconciled 
interpretation, the terms of the provision still form a "single relative cla use" that begins with the 
phrase "which it considers" and contains the entirety of each subparagraph.  
6.14.   Regarding the United  States ' request for further elaboration in the body of the Report, the 
Panel briefly reviews certain points of its analysis of the Un ited States ' arguments to clarify the 
overall context in which the footnote appears in the Panel's reasoning regarding the interpretation 
of Article  XXI(b) in this dispute. In section 7.9.2, the Panel focuses specifically on the United  States ' 
argument tha t "which it considers" qualifies the subparagraphs of Article  XXI(b) within a "single 
relative clause" that entirely reserves the subparagraphs to the judgment of the invoking Member. 
In accordance with Article  3.2 of the DSU, the Panel's textual analysis addresses the function and 
ordinary meaning of the subparagraphs as describing certain kinds of permitted "action", including 
reference to the structure and punctuation of Article  XXI of the GATT  1994. In this regard, the Panel 
concludes that the paragraph s and subparagraphs form alternative endings to a complete sentence 
under Article  XXI, and the opening terms of each of the subparagraphs ("relating to" and "taken") 
qualify the "action" in paragraph (b). Moreover, the subparagraphs are exhaustive in estab lishing 
the circumstances in which a Member may take the "action" under Article  XXI(b).  WT/DS556/R  
 
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  6.15.   Following these textual conclusions, the Panel addresses grammatical aspects of the parties' 
arguments as well as other aspects of textual interpretation and ordinary meaning, particularly the 
principle of effective treaty interpretation and the exhaustive types of "action" specified in the 
subparagraphs of Article  XXI(b). The Panel additionally addresses relevant context in Articles XXII 
and XXIII of the GATT  1994 and the DSU, the object and purpose of maintaining the balance of 
rights and obligations under the covered agreements, and non -treaty materials submitted by the 
parties relating to the interpretation of Article  XXI of the DSU. Based on the entirety of this ana lysis, 
the Panel concludes that the terms "which it considers" in Article  XXI(b) do not qualify the 
subparagraphs to render them "self -judging" or "non -justiciable" as argued by the United  States . 
6.16.   In this manner, the Panel has addressed multiple aspects of  the interpretation of 
Article  XXI(b) with specific reference to the United  States ' argument regarding a "single relative 
clause" purportedly encompassing the subparagraphs of that provision. As one element of this 
analysis, the Panel has noted the concord ance of plural and feminine terms in the French and Spanish 
versions of Article  XXI(b) to support the qualification of the term "action" by the subparagraphs. In 
other parts of its assessment, the Panel has also examined the ordinary meaning of actions "re lating 
to" specified "materials" and "traffic" and to actions "taken in time of" specified circumstances. The 
Panel has further accounted for the structure of Article  XXI(b) and the textual separation of the 
subparagraphs into an enumerated list, which cor responds to the role of the subparagraphs as 
alternative sentence endings that collectively and exhaustively delimit the scope of Article  XXI(b).  
6.17.   The Panel recalls its mandate and discretion to make such findings as will assist the DSB in 
making the recom mendations or rulings provided for in the relevant covered agreements. In 
assessing the contested issues of interpretation regarding Article  XXI(b) and the review of its 
invocation by a Member in dispute settlement proceedings, the Panel did not find it ne cessary to 
address in greater detail the parties' arguments on the reconciliation of the three authentic texts  of 
the provision . In addition, the United  States  does not explain the relevance of these arguments to 
the Panel's overall analysis and conclusion s on whether a "single relative clause" beginning with the 
phrase "which it considers" renders Article  XXI(b) "self -judging" or "non -justiciable" in the sense 
argued by the United  States .250 To the extent the United  States ' request concerns the weight 
assigned to its arguments and the merits of the Panel's analysis, the Panel notes that interim review 
is not an appropriate stage for relitigating arguments already submitted by the parties and addressed 
to the extent necessary in the Panel's findings.  In these  circumstances, the Panel has modified this 
footnote to expand the summary of the parties' arguments and to clarify that the Panel does not 
consider it necessary for the purposes of this dispute to address in further detail the parties' 
arguments on the re conciliation of the three authentic texts in relation to the contested issues of 
interpretation under of Article  XXI(b) and its application to the measures at issue in this dispute . 
6.18.   The United  States  requests that the Panel introduce certain modifications to paragraphs 
7.137 and 7.138  in order to more accurately reflect its arguments on English grammar rules in the 
context of the interpretation of Article  XXI(b). Switzerland does not comment on the Un ited States ' 
request.  
6.19.   The Panel has made the requested modification in paragraph 7.137 to clarify the context 
regarding subparagraphs (i) and (ii) of Article  XXI(b) in which the United  States  referred to the rules 
of English grammar. The Panel declines th e additional suggested text in paragraph 7.138 in which 
the Panel is addressing grammatical considerations as part of its overall assessment of the contested 
issues of interpretation under Article  XXI(b) in this dispute. In particular, the Panel's analysis  in 
these paragraphs notes the absence of a definitive rule of grammar supporting the United  States ' 
construction of the provision as containing a "single relative clause" that wholly reserves the 
conditions and circumstances of the subparagraphs to the ju dgment of the invoking Member. The 
Panel has modified these paragraphs to clarify that, with respect to the interpretation of 
Article  XXI(b), the qualification of the noun "action" in paragraph (b) by the subparagraphs is not 
solely determined by rigid app lication of grammar but follows from the ordinary meaning of these 
terms, as elaborated in the remainder of the Panel's analysis.  
6.20.   The United  States  requests that the Panel expand the summary of arguments in paragraph 
7.151  on the interpretation of the term s "emergency in international relations" in Article  XXI(b)(iii), 
 
250 See e.g. Panel  Report s, India – Solar Cells , para.  6.24; Indonesia – Iron or Steel Products , Annex  A-
3, paras.  2.3-2.4; US – Poultry (China) , para.  6.32. WT/DS556/R  
 
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  and that the Panel address these arguments in paragraph 7.155  setting out the Panel's 
interpretation of these terms. Switzerland does not comment on the United  States ' request.  
6.21.   As noted, the  Panel has not comprehensively reproduced every aspect of the parties' 
arguments but rather has referred to the parties' arguments in order to facilitate understanding of 
the contested issues addressed in the Panel's reasoning and findings. In this connect ion, the Panel 
has focused on the gravity or severity of an "emergency in international relations" within the 
meaning of Article  XXI(b)(iii), particularly regarding the impact on international relations of 
situations falling under that provision. Moreover,  the Panel has interpreted the terms "emergency in 
international relations" in accordance with Article  3.2 of the DSU and its mandate to make such 
findings as will assist the DSB in making the recommendations or rulings provided for in the covered 
agreemen ts. In section 7.9.3, the Panel has addressed the interpretation of Article  XXI(b)(iii) to the 
extent necessary to assess whether, based on the evidence and arguments submitted by the parties, 
the measures at issue were "taken in time of war or other emerg ency in international relations". On 
the basis of the foregoing, the Panel does not consider it necessary to further address the 
United  States ' arguments in this regard.  
6.3  Appendices  
6.22.   The United  States  requests that the Panel incorporate the analysis and conc lusions contained 
in Appendices A and B  into the main body of the Report. The United  States  considers the materials 
described in these appendices to be integral to the Panel's analysis and notes that they were a 
subject of disagreement and argument by the parties.  Switzerland considers that there is no need 
to incorporate the text of Appendices A and B in the Report and that the reference to the appendices 
in the relevant paragraphs of the Report is sufficient. Switzerland suggests that the Panel may, 
howev er, wish to specify which appendix it is referring to in the relevant paragraphs.  
6.23.   The Panel recalls its conclusion in Appendix  A that its review of the negotiating history of 
Article  11.1(c) of the Agreement on Safeguards confirms its interpretation of tha t provision. The 
Panel has also concluded that the materials examined in Appendix  B support the general conclusion 
that the terms of Article  XXI(b) of the GATT  1994 establish a right to take action for the protection 
of essential security interests in the conditions and circumstances described in the three 
subparagraphs. The appendices set out in greater detail the specific materials examined, the 
arguments advanced by the parties, and the bases for the Panel's conclusions. The Panel therefore  
declines the United  States ' request,  and the Panel has modified the references to the appendices in 
the Report to specify which appendix is being referred to in the Panel's analysis . 
6.24.   In response to requests by Switzerland, the Panel has modified paragraphs 2.2, 2.11, 2.14, 
2.23, 7.60, and 8.40 and footnotes 6, 47, 128, 129, 230, 236, and 300 of Appendix  B to 
more accurately reflect Switzerland's arguments . 
7  FINDINGS  
7.1  Mandate  under the DS U 
7.1.  The Panel was established  by the DSB in accordance with Article  6 of the DSU with standard 
terms of reference, as provided in Article  7.1 of the DSU, "[t] o examine, in the light of the relevant 
provisions of the covered agreements cited by the parties to  the dispute, the matter referred to the 
DSB" in the complainant's panel request and " to make such findings as will assist the DSB in making 
the recommendations or in giving the rulings provided for in those agreements ". Pursuant to 
Article  7.2 of the DSU,  the Panel is required to "address the relevant provisions in any covered 
agreement or agreements cited by the parties to the dispute".  
7.2.  The matter referred to the DSB in the complainant's panel request comprises claims under the 
GATT  1994 and the Agreement  on Safeguards with respect to the measures at issue.251 In response 
to these claims, the United  States  requests that the Panel find that the United  States  has invoked 
its essential security interests under Article  XXI(b) of the GATT  1994 and so report to t he DSB.252 
Although the United  States  acknowledges that "the Panel has jurisdiction over this dispute, because 
 
251 See section 3 above . 
252 United  States ' first written submission, para. 187. WT/DS556/R  
 
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  the DSB has established the Panel to examine the matter set out in the panel request "253, it argues 
that its " invocation of Article  XXI is a non-justiciable issue as Article  XXI makes its invocation 
self-judging by the Member taking the security action ".254 In the United  States ' view, "[i] t follows 
that the Panel may not make findings on the complainant 's claims because they are not appropriate 
or suitable for adjudication by the Panel and may not make recommendations because no finding of 
WTO-inconsistency can be made. "255  
7.3.  In response to questions from the Panel, t he United  States  clarifies that "the United States is 
not requesting that the Panel refrain from applying the rules and procedures of the DSU " but rather 
submits that "[the United  States '] approach reflects an outcome consistent with a panel 's terms of 
reference from the DSB and function of a panel under the DSU, and a proper interpretation of 
Article  XXI(b) under the Vienna  Convention " on the Law of Treaties  (Vienna  Convention ).256 
According to the United  States , the Panel's "jurisdiction" conferred by Articles 7.1 and 11 of the DSU 
is con strained by "the ordinary meaning of the terms in Article  XXI(b)", as interpreted in accordance 
with the customary rules of interpretation of public international law.  The United  States  thus clarifies 
that its arguments on "justiciability" and the "politic al" nature of the questions involved rest on the 
interpretation of the terms of Article  XXI(b) in accordance with the interpretive principles of 
Article  3.2 of the DSU and the Panel's terms of reference.257 As addressed in greater detail below, 
the complain ant also refers to these interpretive principles and the requirements of the Panel's terms 
of reference in contesting the United  States ' characterization of Article  XXI(b) as "non -justiciable".258   
7.4.  Based on its terms of reference, the Panel's mandate under  the DSU is to examine the matter 
raised by the complainant in its panel request and to address the United  States ' invocation of 
Article  XXI(b) of the GATT  1994. The purpose of this examination is to enable the Panel to make 
such findings as will assist the DSB in discharging its responsibilities under the covered agreements. 
In fulfilling this mandate, the Panel is mindful of its function and duty under Article  11 of the DSU to 
make an objective assessment of the matter before it, including an objective assessment of the facts 
of the case and the applicability of and conformity with the relevant covered agreements. The Panel 
is further guided by the role of WTO d ispute settlement, as recognized in Article  3.2 of the DSU, to 
preserve the rights and obligations of Members under the covered agreements, and to clarify the 
existing provisions of those agreements in accordance with customary rules of interpretation of 
public international law .259  
7.5.  The Panel observes that the parties affirm these fundamental principles regarding the 
assessment of the complainant's claims and the United  States ' invocation of Article  XXI(b) of the 
GATT  1994 under the rules and procedures of the DSU.260 However, the parties dispute the 
application of these principles to the matter before the Panel, particularly with respect to the 
applicability of Article  XIX of the GATT  1994 and the Agreement on Safeguards to the measures at 
issue, and the rel ationship between those disciplines and Article  XXI(b) of the GATT  1994. Regarding 
the United  States ' invocation of Article  XXI(b), the parties further dispute the extent to which the 
terms of this provision reserve discretion to the invoking Member taking  action that it considers 
necessary for the protection of its essential security interests, as well as the applicability of this 
 
253 United  States ' first written submission , para.  184. 
254 United  States ' first written submission , para.  186. The United  States  submits that "'jurisdiction' can 
be defined as the extent of power of the Panel under the DSU to exercise its judicial authority or decide a 
particular case", while "'justiciability', by contrast, relates to whether a matter is appropriate or suitable for  
adjudication by a court, or in this context, whether an issue is subject to findings by the Panel under the DSU." 
(Ibid.  para. 184). 
255 United  States ' first written submission , para.  186. The United  States  further argues that "the self -
judging text include d in Article  XXI" reflects a recognition that "issues of essential security are inherently 
political in nature, and there are no legal criteria by which a Member's consideration of its essential security 
interests can be objectively determined". (Ibid.).  
256 United  States ' response to Panel question Nos. 26 -29.  
257 See United  States ' response to Panel question No.  54 (arguing that " it is not the political nature of 
the issues covered under Article  XXI(b) that lead to an interpretation that the provision is self -judging " but 
rather "[i]t is the text of Article  XXI(b) that establishes its self -judging nature"); see also United  States ' 
opening statement at the first meeting of the Panel, paras.  3-4 and 67.  
258 See section  7.9 below .  
259 See Appellate  Body Reports, Japan – Alcoholic Beverages II , para.  31; EC – Computer Equipment , 
para. 82; Panel  Report , US – Section  301 Trade Act , para.  7.75.  
260 See e.g. United  States ' response to Panel question No.  25 ("the Panel 's function is to objectively 
assess the matter before it by interpreting Article  XXI(b) in accordance with the customary rules of 
interpretation" ); Switzerland's response to Pan el question No.  26. WT/DS556/R  
 
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  provision to the challenged measures based on the arguments and evidence submitted in these 
proceedings.  
7.6.  The Panel is required  under the DSU to assess these disputed issues in an objective manner  
and to make findings on the basis of that assessment that will assist the DSB in making the 
recommendations or rulings provided for in the covered agreements. In furtherance of this mand ate, 
the Panel will examine the matter within its terms of reference by assessing the a pplicability of and 
conformity with the relevant provisions of the GATT  1994 and the Agreement on Safeguards , based 
on the interpretive principles of Article  3.2 of the DSU and the arguments and evidence presented 
by the parties. As prescribed by Article  12.7 of the DSU, the Panel will set out its relevant findings 
of fact, the applicability of relevant provisions, and the basic rationale behind any findings and 
recommend ations that it makes.  
7.2  Order of analysis  
7.7.  In considering the appropriate order of analysis of the issues outlined above, the Panel has 
discretion to structure its analysis taking into account the specific measures, claims, arguments , and 
relevant provisions  at issue.261 Having considered the arguments presented by the parties in this 
dispute262, the Panel will first address issues concerning its terms of reference and the identification 
of the measures at issue. Following this determination of the measures with in its terms of reference, 
the Panel will examine the complainant's claims that the measures are inconsistent with certain 
provisions of the covered agreements.  
7.8.  In principle, the obligations set forth in the WTO covered agreements apply cumulatively.263 In 
this dispute, t he parties disagree as to whether the WTO rules on safeguards set forth in Article  XIX 
of the GATT  1994 and the Agreement on Safeguards apply to the measures at issue , and the 
complainant raises other claims under the GATT  1994 which are independent of those contested 
issues of applicability . Taking these circumstances into account, along with the operation of the 
measures at issue  and the manner in which the parties have presented their argument s, the Panel 
considers it appropr iate to begin its assessment with the claims under Articles I:1, II:1, XI:1, and 
X:3 of the GATT  1994.  
7.9.  The Panel will first assess the consistency of the relevant measures with Article  II:1 of the 
GATT  1994 and the relevant commitments in the United  State s' Schedule of Concessions. The  Panel 
will then assess the claims under Article  I:1 of the GATT  1994 concerning most-favoured -nation 
treatment . The Panel will next address the claims under Article  XI:1 of the GATT  1994 concerning  
quantitative restrictions , followed by the claims under Article  X:3 of the GATT  1994 concerning the 
administration of measures. The Panel will then assess the remainder of the complainant's claims 
under Article  XIX of the GATT  1994 and the Agreement on Safeguards , including the par ties' 
disagreement as to the applicability of this provision and agreement to the measures at issue.  
7.10.   The Panel will next address the United  States ' invocation of Article  XXI(b) of the GATT  1994 
in relation to any measures falling within the Panel's terms of reference found to be inconsistent 
 
261 See Appellate  Body Reports, Canada – Wheat Exports and Grain Imports , para.  126; US – COOL 
(Article  21.5 – Canada and Mexico) , para.  5.229; Panel  Report s, India – Solar Cells , paras.  7.41-7.42; Russia – 
Pigs (EU), para.  7.30. In disputes involving security exceptions under Article  XXI(b) of the GATT  1994 and 
Article  73 of the TRIPS  Agreement , previous panels have exercised discretion regarding the order of analysis 
based on their consideration of the specific circumstances of the dispute, including arguments made by the 
parties and other relevant provisions at issue. (See Panel  Report s, Russia – Traffic in Transit , paras.  7.20-7.26; 
Saudi Arabia – IPRs, paras.  7.1-7.3). 
262 While not bound by the presentation of claims and arguments by the parties, the Panel notes that 
the parties have taken different views on the appropriate order of analysis of the issues in this dispute. The 
complainant considers that the Panel should commence with examination of the claims under the Agreement 
on Safeguards and Article  XIX of the GATT  1994, followed by other claims under the GATT  1994, before turning 
to the United  States ' invocation of Article  XXI(b). The United  States  maintains that the Panel should begin by 
addressing Article  XXI(b) as the invocat ion of this provision means that there are no findings that would assist 
the DSB in making recommendations or giving rulings as to the complainant's claims. (United  States ' response 
to Panel question Nos. 21 -23). 
263 The Panel is also mindful that there may be circumstances in disputes where more than one covered 
agreement applies and it is appropriate to begin the analysis with p rovision s from an agreement that "deals 
specifically, and in detail" with the measures at issue. (See  Appellate  Body Report s, Brazil – Desiccated 
Coconut , pp. 12-13; Canada – Periodicals , p. 19; and EC – Bananas III , para.  204; Panel  Report s, Australia – 
Tobacco Plain Packaging , paras.  7.76-7.79; US – Customs Bond Directive , paras.  7.170 -7.171) . WT/DS556/R  
 
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  with provisions of the covered agreements. The Panel will assess the arguments and evidence 
submitted by the parties in relation to the measures at issue beginning with the parties' 
disagreement as to the meaning of th e terms of Article  XXI(b) of the GATT  1994 interpreted in 
accordance with Article  3.2 of the DSU and the customary rules of interpretation of public 
international law. On the basis of this assessment, the Panel will provide its findings and 
recommendations  in accordance with the DSU.  
7.3   Terms of reference and measures at issue  
7.3.1   Introduction  
7.11.   In this section, t he Panel will  examine issues raised by the parties relating to Article  6.2 of 
the DSU, which provides in relevant part:  
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly.  
7.12.   The par ties have raised a number of issues relating to the requirements of Article  6.2 of the 
DSU and the Panel's terms of reference.264 Specifically, Switzerland argues that the Panel's terms of 
reference include : (a) the additional import duties imposed on deriv ative steel and aluminium 
products  and the country -specific exemptions granted from those duties ; (b) the exclusion of imports 
of steel and aluminium products from Canada and Mexico from the additional import duties ; and (c) 
changes to the additional impor t duty applicable to  steel products from Türkiye .265 The United  States  
argues that these measures , which did not exist at the time of the panel request , could not have 
been identified in the panel request and therefore are not within the Panel's terms of re ference .266 
7.13.   The Panel will accordingly examine whether  it can make findings and recommendations on 
the measures described  above.  
7.3.2   Additional d uties on derivative steel and aluminium products and corresponding 
country exemptions  
7.14.   On 24  January  2020, the  US President  issued Presidential Proclamation 9980  under the 
authority granted by Section  232.267 Presidential Proclamation 9980 introduced  additional duties of 
25% on derivative steel products and 10%  on derivative aluminium products with effect from 
8 Februa ry 2020.268 This Presidential Proclamation also exempted  from these duties: (a) derivative 
steel products from Australia, Argentina, Brazil, the Republic of Korea , Canada, and Mexico; and (b) 
derivative aluminium products from Australia, Argentina, Canada, and Mexico.269 
 
264 In addition to the issues discus sed in this section, the parties also dispute whether Switzerland's 
panel request adequately identifies the seeking of/conclusions of agreements by the United  States  with certain 
countries with a view to exempt imports from those countries  from the additio nal duties on steel and 
aluminium . As the Panel declines to make findings in respect of  the claims concerning  any alternative 
treatment of exempted products, the Panel does not  find it necessary  to further address whether measures 
related to those claims a re within its terms of reference. See sections 7.5 and 7.7 below.  
265 See section 2.3 above  and Switzerland's response to Panel question No.  97. Switzerland also 
request s the Panel to include  within its terms of reference  (i) Presidential Proclamation 10060 of 
6 August  2020, which re -imposed the 10% additional duty on imports of non -alloyed unwrought aluminium 
articles from Canada  and (ii)  Presidential Proclamation 10064 , which changed the  import quotas agreed 
between the United  States  and Brazil . Switzerland identifies challenges under Articles II, X and XI of the 
GATT  1994 in respect of these proclamations. In light of the Panel's findings under Articles II , X and XI of the 
GATT  1994 and in the circumstances of this dispute , the Panel does not consider it necessary  to address 
whether these Presidential Proclamations  are within its terms of reference . See sections 7.4, 7.6, and 7.7. 
266 United  States ' response  to Panel question No.  87. 
267 Presidential Proclamation 9980, (Exhibit CHE -72 and USA -225), pp. 5281 and 5283.  
268 Presidential Proclamation 9980, (Exhibit CHE -72 and USA -225), p. 5283.  
269 Presidential Proclamation 9980, (Exhibit CHE -72 and USA -225), p. 5283.  WT/DS556/R  
 
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  7.15.   Switzerland requests the Panel to include the additional duties and corresponding country 
exemptions  imposed by Presidential  Proclamation 9980  in its terms of reference .270 According to 
Switzerland , Presidential Proclamation 9980 simply  extends the same additional duties as imposed 
by Presidential Proclamations 9704 and 9705 to derivative steel and aluminium articles  and thus 
amounts to a measure "amending ", "complementing " or "extending " the scope of the original  
measures .271 Switzerland  further argues  that Presidential P roclamation 9980 is an 
anti-circumvention measure and pursues exactly the same objective as the original import 
adjustment measures.272 The United  States  notes that Presidential Proclamation 9980 wa s issued 
more than a year after  the establishment of the Panel, and therefore, the duties on derivative 
products did not exist at the time of the Panel 's establishment, were not and could not have been 
identified in Switzerland's  panel request, and fall ou tside the Panel 's terms of reference.273 
7.16.   The Panel begins by noting that  the measures within a panel's terms of reference are generally 
those in existence at the time of the establishment of the panel . This does not preclude a panel, in 
certain circumstance s, from reviewing measures enacted or modified after its establishment , taking 
into account the specific terms used in a panel request and in light of the aim of the dispute 
settlement mechanism to provide a positive solution to the dispute .274 In assisting the DSB in making 
its recommendations, a panel may review measures that come into existence after panel 
establishment that bear a close relationship to measures described in the panel request.275 The Panel 
will thus assess the relationship bet ween the measures identified in Switzerland's panel request and 
the additional duties on derivative products imposed by Presidential Proclamation 9980, including 
the corresponding exemptions set out therein.  
7.17.   In its panel request, Switzerland challenges "th e import adjustments on certain steel products 
and certain aluminium products"276, including the "additional import duty of 25% on certain steel 
products" and "additional import duty of 10% on certain aluminium products" as well as the 
exemptions granted to  Argentina, Australia, Brazil and the Republic of Korea .277 According to 
Switzerland, these measures have been imposed through a number of documents of the 
United  States , considered alone or in any combination.278 Among those documents are Presidential 
Proclamations 9704 and 9705 , and the Steel and Aluminium Report s.279 Switzerland's panel request 
further states that it " also covers any additional measures amending, superseding, supplementing, 
updating, extending, replacing or implementing the measures  referre d to above as well as any 
exemptions or exclusions applied".280 
7.18.   The Panel  notes that Presidential Proclamation 9980 explicitly refers to the Steel and 
Aluminium Report s and earlier Presidential Proclamations 9704 and 9705 on aluminium and steel, 
respectivel y, in setting out its legal basis and justification. In particular, Presidential Proclamation 
9980 refers to the direction in Presidential Proclamations 9704 and 9705 to the US Secretary of 
Commerce to "inform [the US President] of any circumstances that i n the Secretary 's opinion might 
 
270 Switzerland's response to Panel question No.  87; see also second written submission, paras.  9 and 
11, and response to Panel question No.  97. 
271 Switzerland's response to Panel question  Nos. 87 and 96.  
272 Switzerland's response to Panel question No s. 87 and 96.  
273 United  States ' response  to Panel question No.  87. 
274 Articles 3.7 and 11 of the DSU . See also  Appellate  Body Reports, US – Zeroing  (Japan) (Article  21.5 
– Japan) , paras.  121 and 125; EC – Chicken  Cuts, paras.  156-159; and Chile – Price Band System , 
paras.  126-144; Panel  Report s, US – Ripe Olives  from Spain , para.  7.12; US – Washing  Machines , 
paras.  7.248 -7.249; EC – Fasteners (China) , para.  7.34; and Colombia – Ports of En try, paras.  7.52-7.54. 
275 See Panel  Report s, US – Ripe Olives  from Spain , para.  7.14; Russia – Pigs (EU), para.  7.160; US – 
Carbon Steel , para.  8.11; India – Agricultural Products , para.  7.78-7.80;  EC – Fasteners (China) , para. 7.38; 
Australia – Salmon (Article  21.5 – Canada) , para.  7.10, subpara.  27; and Japan – Film, paras.  10.8-10.9. 
Similarly, previous panels and Appellate  Body reports have considered (a) whether the terms of the panel 
request are broad enough to cover amendments to the measu res and (b) whether the measures remain in 
essence the same as those identified in the panel request. Appellate  Body Report, Chile – Price Band System , 
paras.  135-139. See also Appellate  Body Reports, US – Zeroing (EC) (Article  21.5 – EC), paras.  190-191 and 
383-384; EC – Selected Customs Matters , para.  184; EC – Chicken Cuts , paras.  156-161; Panel  Report s, US – 
Ripe Olives  from Spain , para.  7.14; Indonesia – Chicken , paras.  7.84-7.85; and US – Large Civil Aircraft (2nd 
complaint) (Article  21.5 – EU), para.  7.524 . 
276 Switzerland's panel request, p. 2.  
277 Switzerland's panel request, pp. 1 -2. 
278 Switzerland's panel request, p. 2.  
279 Switzerland's panel request, pp. 2 -3. See also section 2.2 above.  
280 Switzerland's panel request, p. 3.  WT/DS556/R  
 
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  indicate the need for further action under section 232" .281 The US President decided to " adjust the 
tariffs imposed by previous proclamations to apply to the derivatives of aluminum articles and steel 
articles "282 specifically based on the Secretary's assessments that foreign producers of derivative 
steel and alumin ium products "have increased shipments of such articles to the United  States  to 
circumvent the duties on steel and aluminum articles imposed in Presidential Proclamations 9704 
and 9705"283 and that " imports of these derivative articles threaten to undermine the actions taken 
to address  the risk to the national security of the United  States  found in Presidential Proclamation s 
9704 and 9705 ".284 In this respect, the measures introduced by Presidential Proclamation 9980 have 
a close connection to the instruments  identified in Switzerland's panel request.285  
7.19.   The legal basis for Presidential Proclamation 9980  is Section  232.286 Section  232 in turn 
authorizes the US President, if he concurs with the findings in the US Secretary of Commerce's 
reports, " to adjust the  imports of [an] article and it s derivatives  so that such imports will not threaten 
to impair the national security ".287 In Presidential Proclamation 9980, the US President notes the 
importance of stabilizing domestic capacity utilization in the steel and aluminium industries at the 
levels recommended by the US Secretary of Commerce in the Steel and Aluminium Report s.288 The 
US President further relies on the Secretary's conclusion that "reducing imports of the derivative 
articles …  would reduce circumvention and facilitate the adjustment of imports that Proclamation 
9704 and Proclamation 9705, as amended, made to increase domestic capacity utilization".289 This 
further demonstrates the connection between Presidential Proclamation 9980 on derivative products 
and the earlier Presidential Proclamations 9704 and 9705 stemming from Section  232 and the Steel 
and Aluminium  Report s.  
7.20.   The duties and exemptions on derivative steel and aluminium products are also explicitly 
linked to the objectives of the earlier measures taken under Section  232 identified in Switzerland's 
panel request. Presidential Proclamation 9980  provides that imports of certain derivative  steel and  
alumin ium products have significantly increased since tariffs and quotas were imposed on certain 
steel and aluminium products, and that the net effect of this increase  has been to "undermine the 
purpose of the p roclamations adjusting imports of aluminum and steel articles to remove the 
threatened impairment of the national security" .290 This Proclamation states that the duties on 
derivative steel and aluminium products are "necessary and appropriate to address cir cumvention 
that is undermining the effectiveness of the adjustment of imports made in Proclamation 9704 and 
Proclamation 9705".291 This confirms that Presidential Proclamation 9980 supplements Presidential 
Proclamation s 9704 and 9705  in pursuit of the same objectives under Section  232 based on 
recommendations by the Secretary of Commerce in the Steel and Aluminium Report s.  
7.21.   For the foregoing reasons, the Panel concludes  that Presidential Proclamation 9980 and the 
actions set out therein, i.e.  the imposition of duties on derivative steel and aluminium products and 
corresponding exemptions, bear a close connection to the earlier measures on steel and aluminium 
that are identified in Switzerland's panel request. Moreover, Switzerland's panel request was 
formulat ed so as to encompass  such supplements  or extensions. The Panel therefore finds that these 
measures  are within its terms of reference.  
 
281 Presidential Proclamation 9980, (Exhibit CHE -72 and USA -225), p. 5281.  
282 Presidential Proclamation 9980, (Exhibit CHE -72 and USA -225), p. 528 3. 
 283 Presidential Proclamation 9980, (Exhibit CHE -72 and USA -225), p. 5282.  
284 Presidential Proclamation 9980, (Exhibit CHE -72 and USA -225), p. 528 2. 
285 The Panel  also notes that Presidential Proclamation 9980 defines its product scope with reference to 
the st eel and aluminium articles envisaged in Presidential Proclamations 9704 and 9705. (Presidential 
Proclamation 9980, (Exhibit CHE -72 and USA -225), p. 5282 ). 
286 Presidential Proclamation 9980, (Exhibit CHE -72 and USA -225), p. 5283 ("Section  232 of the Trade 
Expansion Act of 1962, as amended, authorizes the President to adjust the imports of an article and its 
derivatives  that are being imported into the United  States  in such quantities or under such circumstances as to 
threaten to impair the national security of the United  States " (emphasis added) ). 
287 Section 232, ( Exhibit CH E-1 and USA-1), § 1862( c)(1)(A ). 
288 Presidential Proclamation 9980, (Exhibit CHE -72 and USA -225), pp. 5281 -5282.  
289 Presidential Proclamation 9980, (Exhibit CHE -72 and USA-225), p. 5282.  
290 Presidential Proclamation 9980, (Exhibit CHE -72 and USA -225), p. 5282.  
291 Presidential Proclamation 9980, (Exhibit CHE -72 and USA -225), p. 5283.  WT/DS556/R  
 
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  7.3.3   Exclusion of imports of steel and aluminium products from Canada and Mexico from 
the additional duties  
7.22.   Presidential Proc lamation 9893 provides  that the "United States has successfully concluded 
discussions with Canada and Mexico on satisfactory alternative means"292 and that as a 
consequence, the United  States  has "decided to exclude Canada and Mexico from the tariff 
proclai med in Proclamation 9704"  on aluminium products .293 Similarly, Presidential Proclamation 
9894 states  that the "United  States  has successfully concluded discussions with Canada and Mexico 
on satisfactory alternative  means "294 and that as a consequence, the United  States  has "decided to 
exclude Canada and Mexico from the tariff proclaimed in Proclamation 9705"  on steel products .295 
Switzerland argues that the modifications introduced by Presidential Proclamations 9893 and 9894 
fall within the Panel's terms of reference.296 
7.23.   The Panel recalls that b etween  March and May 2018, the United  States  issued several 
Presidential Proclamations e xempting certain countries from the additional duties on steel and 
aluminium imports .297 These exemptions were granted based on the US President's determination 
in Presidential Proclamations 9704 and 9705  that " should the United  States  and any [country] arr ive 
at a satisfactory alternative means to address the threat to the national security … [the US President] 
may remove or modify the restriction on [steel and alumin ium] articles imports from that 
country".298 Switzerland's  panel request identifies Presiden tial Proclamations 9704 and 9705 as well 
as subsequent proclamations granting exemptions to countries including Australia, Argentina, Brazil 
and the Republic of Korea .299  
7.24.   As discussed above300, a panel may review measures that come into existence after panel 
establishment that bear a close relationship to measures described in the panel request.  In this 
regard, the Panel notes that Presidential Proclamations 9893 and 9894 directly refer to Presidential 
Proclamation s 9704 and 9705 in setting out their legal basis. In particular, they recall the US 
President's determination in Presidential Proclamations 9704 and 9705 on the circumstances under 
which exemptions from the additional duties could be granted .301 Presidentia l Proclamation s 9893 
and 9894 also refer to the authority of the US President under Section  232 and the findings of the 
US Secretary of Commerce in the Steel and Aluminium Reports, a feature shared by the Presidential 
Proclamations identified in Switzerlan d's panel request, including Presidential Proclamations 9704 
and 9705.302 For the Panel, this demonstrates the connection between Presidential Proclamations 
9893 and 9894 and the Presidential Proclamations identified in Switzerland's panel request relating 
to the country exemptions.  
7.25.   In addition to the above, the Panel notes the similarities between the exemptions granted 
through Presidential Proclamations 9893 and 9894 and the exemptions identified in Switzerland's 
panel request. Each exemption is designed t o exclude countries from the additional duties applicable 
to an identical set of products , namely those  set out in  the annexes to Presidential Proclamation s 
 
292 Presidential Proclamation 9893, ( Exhibit CHE -74 and USA -232), p. 23983.  
293 Presidential Pr oclamation 9893, (Exhibit CHE -74 and USA -232), p. 23983.  
294 Presidential Proclamation 9894, (Exhibit CHE -73 and USA -233), p. 23987.  
295 Presidential Proclamation 9894, (Exhibit CHE -73 and USA -233), p. 23988.  
296 Switzerland's response to Panel question No.  87. 
297 See sections 2.2.1.2  and 2.2.2.2  above.  
298 Presidential Proclamation 9739, (Exhibit CHE -15 and USA -14), pp. 20677 -20678; Presidential 
Proclamation 9740, (Exhibit CHE -10 and USA -13), pp. 20683 -20684; Presidential Proclamation 9758, (Exhibit 
CHE-16 and USA -16), pp. 25849 -25850; Presidential Proclamation 9759, (Exhibit CHE -11 and USA -15), pp. 
25857 -25858. See also Presidential Proclamation 9704, ( Exhibit CHE-13 and USA -10), p. 11620; Presidential 
Proclamation 9705, ( Exhibit CHE-8 and USA -9), p. 11626.  
299 Switzerland's  panel request, p p. 2-3.  
300 See para.  7.16 above.  
301 Presidential Proclamation 9893, (Exhibit CHE -74 and USA -232), p. 23983 ; Presidential Proclamation 
9894, (Exhibit CHE -73 and USA -233), p. 2398 7 ("should the United  States  and any such country arrive at a 
satisfactory alternative means to address the threat to the national security such that … imports from that 
country no longer threaten to impair the national security, [the US President] may remove or modify the 
restrictio n on steel articles imports from that country ").  
302 Presidential Proclamation 9893, (Exhibit CHE -74 and USA -232), p. 23983 ; Presidential Proclamation 
9894, (Exhibit CHE -73 and USA -233), p. 2398 7. See also Steel Report, ( Exhibit CHE-2 and USA -7), pp. 60 -61; 
Aluminium Report, ( Exhibit CHE-5 and USA -8), p. 109.  WT/DS556/R  
 
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  9704 and 9705.303 The exemptions to Canada and Mexico were also granted under the same 
circumstances as the exemptions identified in Switzerland's  panel request, i.e. concluded discussions 
on "satisfactory alternative means to address the threatened impairment to [US] national security" 
posed by imports from the exempted country304 and the US President 's determination that imports 
from the exempted country "no longer threaten to impair the national security" .305 These similarities 
confirm the close connection between exemptions granted through Presidential Procl amations 9893 
and 9894 and those identified in Switzerland's  panel request.  
7.26.   For these reasons and in light of the specific circumstances of this case, the Panel concludes 
that Presidential Proclamations 9893 and 9894 and the actions set out therein, i.e . the exemptions 
from the additional duties to imports from  Canada and Mexico , bear a close connection to  the earlier  
measures on steel and aluminium  products identified in  Switzerland's panel request. Moreover, 
Switzerland's panel request was formulated so as to encompass such extensions of exemptions .306 
The Panel therefore finds that these measures are within its terms of reference.   
7.3.4   Changes to the additional import duty for steel products from Türkiye  
7.27.   Switzerland argues that the Panel should take into account the c hange of the additional import 
duty applicable to steel imports  from Türkiye  from 50% to 25% .307 The Panel notes that, as 
evidenced in  Presidential Proclamation 9886 of 16  May 2019, the US President decided to remove 
the 50% duty on steel imports from Türkiye  imposed by Presidential Proclamation 9772 and reduce 
it to 25%.308  
7.28.   As discussed above309, a panel may review measures that come into existence after panel 
establishment that bear a close relationship to measures described in the panel request . The Panel 
notes that Presidential Proclamation 9886 introduces a modification to Presidential Proclamation 
9772 of 10  August  2018, which was identified in Switzerland's panel request .310 For the Panel,  
modifying the applicable rate of the additional import dut y on steel products from Türkiye  without 
introducing any other change confirms the close connection between the original measure  identified 
by Switzerland  and the measure introduce d by Presidential Proclamation 9886 of 16  May 2019. 
Therefore, in making its findings and recommendations, the Panel will take into account the change 
to the additional import duty applicable to steel imports  from Türkiye  from 50%  to 25% . 
7.3.5   Conclusion  
7.29.   Based on the foregoing and in light of the specific circumstances of the present dispute, the 
Panel finds that (i) Presidential Proclamation 9980, (ii)  Presidential Proclamations 9893 and 9894 ; 
and (iii)  Presidential Proclamation 9886  are within its terms of reference.  
 
303 Presidential Proclamation 9739, (Exhibit CHE -15 and USA -14), pp. 20677 -20678; Presidential 
Proclamation 9740, (Exhibit CHE -10 and USA -13), p. 20684; Presidential Proclamation 9758, (Exhibit CHE -16 
and USA-16), p. 25850; Presidential Proclamation 9759, (Exhibit CHE -11 and USA -15), p. 25858 ; Presidential 
Proclamation 9893 , (Exhibit CHE -74 and USA -232), p. 2398 3; and Presidential Proclamation 9894 , (Exhibit 
CHE-73 and USA -233), p. 23988 . 
304 Presidential Pr oclamation 9739, (Exhibit CHE -15 and USA -14), p. 20677; Presidential Proclamation 
9740, (Exhibit CHE -10 and USA -13), pp. 20683 -20684; Presidential Proclamation 9758, (Exhibit CHE -16 and 
USA-16), p. 25849; Presidential Proclamation 9759, (Exhibit CHE-11 and USA -15), p. 25857; Presidential 
Proclamation 9893,  (Exhibit CHE -74 and USA -232), p. 2398 3; and Presidential Proclamation 9894 , (Exhibit 
CHE-73 and USA -233), p. 2398 7. 
305 Presidential Proclamation 9740, ( Exhibit CHE-10 and USA -13), p. 20684; Presidential Proclamation 
9758, (Exhibit CHE -16 and USA -16), p. 25850; Presidential Proclamation 9759, (Exhibit CHE -11 and USA -15), 
p. 25858; Presidential Proclamation 9893,  (Exhibit CHE -74 and USA -232), p. 2398 3; and Presidential 
Proclamation 9894 , (Exhibit CH E-73 and USA -233), p. 23988 . 
306 Switzerland's panel request states that it "also covers any additional measures amending, 
superseding, supplementing, updating, extending, replacing or implementing the measures referred to above 
as well as any exemptions or exclusions applied ". (Switzerland's panel request, p. 3 ). 
307 Switzerland's response to Panel question No.  86. 
308 "[The US President]  determined that it is necessary and appropriate to remove the higher tariff on 
steel imports from Turkey imposed by Proclamation 9772, and to instead impose a 25 percent ad valorem tariff 
on steel imports from Turkey, commensurate with the tariff imposed on such articles imported from most 
countries." (Presidential Proclamation 9886, (Exhibit CHE -77 and USA -230), p. 23422).  
309 See para.  7.16 above.  
310 Switzerland's pan el request , p. 2.  WT/DS556/R  
 
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  7.4  Article  II:1 of the GATT  1994  
7.4.1   Introduction  
7.30.   Switzerland argues that the additional import duties on steel and aluminium products are 
inconsistent with Articles II:1(a) and II:1(b) of the GATT  1994.311 Switzerland recalls t hat the 
United  States  has applied ad valorem import duties of 25% on steel products, 50% on steel products 
from Türkiye , and 10% on aluminium products.312 Switzerland submits that these additional import 
duties constitute "other duties or charges" within th e meaning of Article  II:1(b).313 As the 
United  States ' Schedule does not report any other duties or charges with respect to the products at 
issue, Switzerland advances that the additional import duties are therefore inconsistent with 
Article  II:1(b).314 To the extent that they are considered "ordinary customs duties", Switzerland 
argues that the United  States ' tariff bindings are 0% and 0 -6.5% respectively for the steel and 
aluminium products concerned, and it follows that the additional duties of 25% and 10%  on steel 
and aluminium products respectively are inconsistent with Article  II:1(b) because they exceed these 
bound rates.315 Finally, Switzerland contends that this violation of Article  II:1(b) will necessarily 
result in less favourable treatment under Art icle II:1(a).316  
7.31.   The United  States  has not advanced any arguments or evidence contesting the claims under 
Articles II:1(a) and (b) of the GATT  1994.317  
7.32.   Article  II:1 of the GATT  1994 provides in relevant part:  
(a) Each contracting party shall accord to the commerce of the other contracting parties 
treatment no less favourable than that provided for in the appropriate Part of the 
appropriate Schedule annexed to this Agreement.  
(b) The products described in Part I of the Schedule relating to any contracting pa rty, 
which are the products of territories of other contracting parties, shall, on their 
importation into the territory to which the Schedule relates, and subject to the terms, 
conditions or qualifications set forth in that Schedule, be exempt from ordinar y customs 
duties in excess of those set forth and provided therein. Such products shall also be 
exempt from all other duties or charges of any kind imposed on or in connection with 
the importation in excess of those imposed on the date of this Agreement or  those 
directly and mandatorily required to be imposed thereafter by legislation in force in the 
importing territory on that date.  
7.33.   Additionally, the Understanding on the Interpretation of Article  II:1(b) of the GATT  1994 
provides in relevant part:  
Members hereby agree as follows:  
1. In order to ensure transparency of the legal rights and obligations deriving from 
paragraph 1(b) of Article  II, the nature and level of any "other duties or charges" levied 
on bound tariff items, as referred to in that provision, shall be recorded in the Schedules 
of concessions annexed to GATT  1994 against the tariff item to which they apply. It is 
understood that such recording does not change the legal character of "other duties or  
charges".  
 
311 Switzerland's first written submission, paras.  10, 376-377, and 408 . See also Switzerland's second 
written submission, para s. 22-23; and response to Panel question No.  97. 
312 Switzerland's first written submission, paras.  381-390. 
313 Switzerland's first written submission, paras.  391 and 393 -402. 
314 Switzerland's first written submission, paras.  403-404. 
315 Switzerland's first written submission, paras.  392 and 405 -407. 
316 Switzer land's first written submission, paras.  408-413. 
317 See United  States ' closing statement at the second meeting of the Panel, para.  7 (indicating that the 
United  States  "has imposed duties on certain steel and aluminum products on a non -MFN basis and in exce ss 
of the levels set out in its WTO Goods Schedule").  WT/DS556/R  
 
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  7.34.   Article  II:1(a) of the GATT  1994 contains a general prohibition against according treatment 
less favourable to imports than that provided for in a Member's Schedule.318 The first sentence of 
Article  II:1(b) prohibits the imposition of ordinary cu stoms duties on importation in excess of those 
rates set forth in a Member's Schedule.319 The second sentence of Article  II:1(b) prohibits the 
imposition of other duties or charges of any kind on or in connection with importation in excess of 
those imposed on the date of entry into force of the GATT  1994 (or those directly and mandatorily 
required to be imposed thereafter by legislation in force on that date).320 According to the 
Understanding on the Interpretation of Article  II:1(b), the nature and level of any such "other duties 
or charges" must be recorded in a Member's Schedule.321  
7.35.   In this dispute, the complainant focuses its arguments on inconsistency with Article  II:1(b) 
and alleges a consequential violation of Article  II:1(a).322 Prior WTO adjudicators h ave considered 
that Article  II:1(b) prohibits "a specific kind of practice that will always be inconsistent with 
paragraph (a)" because application of duties in excess of what is provided for in a Member's Schedule 
necessarily constitutes "less favourable"  treatment within the meaning of Article  II:1(a).323 Given 
these considerations, the Panel will assess whether the challenged measures result in the imposition 
of duties in excess of what is provided for in the United  States ' Schedule  under Article  II:1(b),  and 
thus accord less favourable treatment than that provided for in the Schedule in violation of 
Article  II:1(a).  
7.36.   The Panel will begin by identifying the concessions and obligations for the relevant products 
in the United  States ' Schedule before turning to the treatment of those products under the 
challenged measures, specifically concerning:   
a. the additional duties of 25% on steel products and 10% on aluminium products ; 
b. the additional duty of 50% on steel products from Türkiye ; and   
c. the additional duties of 25% on derivative steel products and 10% on derivative aluminium 
products.324  
7.4.2   Additional duties on steel and aluminium products  
7.37.   In March 2018, the United  States  imposed additional duties of 25% on steel products and 
10% on aluminium products.325 The following tables identify the steel and aluminium products 
covered by the additional duties and provide a comparative analysis of the United  States ' bound 
rates and it s additional duty rates in relation to those products. The United  States ' Schedule does 
not record any "other duties or charges" with respect to the steel and aluminium products at issue.326 
 
318 See Appellate  Body Reports, Argentina – Textiles and Apparel, para. 45; Colombia – Textiles, 
para. 5.34. See also Panel  Report s, EC – Chicken Cuts, para. 7.63; EC – IT Products , para.  7.99. 
319 See Appellate  Body Reports, India – Additional Import Duties, para. 150; Colombia – Textiles, 
para. 5.35. 
320 See Appellate  Body Report, India – Additional Import Duties,  para. 151; Panel  Report , 
Dominican  Republic  – Safeguard Measures , para.  7.78. 
321 See Pa nel Report , Dominican  Republic  – Safeguard Measures , para.  7.78. See also Panel  Report , 
Dominican  Republic  – Import and Sale of Cigarettes , paras.  7.84-7.90. 
322 See Switzerland's first written submission, paras.  408-413. 
323 Appellate  Body Report, Argentina – Textiles and Apparel , paras.  45-47. See also  Panel  Report s, EC – 
Chicken Cuts , paras.  7.64-7.65; EC – IT Products , para.  7.747 . 
324 See Switzerland's first written submission, paras.  10 and 376-413. See also Switzerland's second 
written submissio n, para s. 22-23; response to Panel question No.  97 (identifying challenges under Article  II:1 
in respect of  Presidential  Proclamation 9886 (amending the duty for steel  products from Türkiye ), 9980 
(imposing duties  on derivative products), and  Presidential Proclamation  10060 (re -imposing a 10% duty on 
steel products from Canada).  With respect to Presidential Proclamation 10060, see fn  265 above.  Switzerland 
also challenges Section  232 as repeatedly interpreted and the ongoing use of Section  232 under Article  II of 
the GATT  1994 and, relatedly, Article  XVI:4 of the WTO Agreement  (Switzerland's first written sub mission, 
paras. 604 and 613 ). The Panel does not find it necessary to rule on this claim  given the circumstances of the 
present dispute, its overall findings , and its mandate to make such findings as will assist the DSB in making the 
recommendations or giving the rulings provided for in the covered agreements.  
325 See Presidential Proclamation 9704 , (Exhibit  CHE-13 and  USA-10); Presidential Proclamation 9705 , 
(Exhibit CHE -8 and  USA-9). See also section 2.2 for a detailed description . 
326 United  States  Bound Concessions at the HS 6 -digit subheading level . WT/DS556/R  
 
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  Table  2: Steel Products Subject to Additio nal Duties under Section  232 
Steel Products Subject to Additional Duties  
 
#  
HTS Code  Rates of customs duties  
Bound rates327 Additional duty  
1. 7206-7215 
0 +25%  2. 7216 (except 
certain 
subheadings)328 
3. 7217-7229 
4. 7301.10.00  
5. 7302.10  
6. 7302.40.00  
7. 7302.90.00  
8. 7304-7306 
Source : United  States  Bound Concessions at the HS 6 -digit subheading level; Presidential Proclamation 9705329 
 
Table  3: Aluminium Products Subject to Additional Duties under Section  232 
Aluminium Products Subject to Additional Duties  
 
#  
HTS Code  Rates of customs duties  
Bound rates330 Additional duty  
1. 7601 0-2.6%  
+10%  2. 7604 1.5-5% 
3. 7605 2.6-4.2%  
4. 7606 2.7-6.5%  
5. 7607 0-5.8%  
6. 7608 0-5.7%  
7. 7609 5.7%  
8. 7616.99.51  2.5%  
Source : United  States  Bound Concessions at the HS 6 -digit subheading level ; Presidential Proclamation 9704331 
 
 
327 Pursuant to Cha pters 72 and 73 of the HTSUS, the generally applied rate for these products is also 
0% for all relevant subheadings.  
328 Exceptions for subheadings 7216.61.00, 7216.69.00, and 7216.91.00.  
329 See United  States ' Schedule of Concessions , (Exhibit CHE -29); Harmonized Tariff Schedule of the 
United  States  (2019) Revision 2, Chapter 76,  (Exhibit CH E-31); and Presidential Proclamation 9705 , (Exhibit 
CHE-8 and  USA-9). The Panel additionally relied on data from the WTO's Consolidated Tariff Schedule (CTS) 
Database  and online versions of the United  States ' harmonized tariff schedule, https://hts.usitc.gov/current  
(accessed 22  June 2022).  
330 Pursuant to Chapter 76 of the HTSUS, the generally applied rate for the relevant s ubheadings are as 
follows: for HTS Code 7601, 0 -2.6%; for HTS Code 7604, 1.5 -5%; for HTS Code 7605, 2.6 -4.2%; for HTS 
Code 7606, 2.7-6.5% ; for HTS Code 7607, 0-5.8% ; for HTS Code 7608, 5.7%; for HTS Code 7609, 5.7% ; and 
for HTS Code 7616.99.51 , 2.5%. In re spect of HTS Code 7608, tariff lines 7608.10.00  and 7608.20.000,  as 
described in the United  States ' Schedule, are subdivided into two categories of (A) and (B). The former applies 
to products certified for use in civil aircraft, for which  a bound rate of zero applies. The latter applies to all 
other products, for which a bound rate of 5.7% applies. The HTSUS does not draw a distinction between (A) 
and (B) by simply providing for a rate of 5.7% . 
331 See United  States ' Schedule of Concessions , (Exhibit CHE -29); Harmonized Tariff Schedule of the 
United  States  (2019) Revision 2, Chapter 76,  (Exhibit CH E-31); and Presidential Proclamation 9704 , (Exhibit  
CHE-13 and  USA-10). The Panel additionally relied on data from the WTO's CTS Database and online versions 
of the United  States ' harmonized tariff schedule, https://hts.usitc.gov/current  (accessed 22  June 2022).  WT/DS556/R  
 
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  7.38.   The Panel recalls that the first sentence of Article  II:1(b) prohibits the imposition of ordinary 
customs duties on importation in excess of those rates set forth in a Member's Schedule, whereas 
the second sentence prohibits the imposition of all other duties or charges of any kind on or in 
connection with importation except as recorded in a M ember's Schedule. To fall within the scope of 
Article  II:1(b), the additional duties must therefore qualify as either "ordinary customs duties" under 
the first sentence, or "other duties or charges" under the second sentence.  
7.39.   The term "ordinary customs dut ies" is not defined in the GATT  1994.332 However, previous 
WTO panels and the Appellate  Body have highlighted several factors that are relevant to this 
characterization. First, the word "ordinary" has been defined as referring to duties "of the usual kind, 
not singular or exceptional"333 or "occurring in regular custom or practice".334 Second, the "customs 
dut[y]" must be imposed "on [the product's] importation"; in other words, the obligation to pay 
must accrue at the moment of or by virtue of the product's i mportation into the Member's customs 
territory.335 Third, neither the form which the duty takes, nor the basis on which it is calculated, will 
necessarily be dispositive.336 Rather, panels have examined duties by their design and structure337 
and found certai n duties and charges , based on their particular features,  not to constitute "ordinary 
customs duties" in the sense of Article  II:1(b).338 The term "all other duties or charges of any kind" 
has been interpreted broadly as a residual category, which covers al l duties or charges on or in 
connection with importation that are neither "ordinary customs duties" nor the duties or charges 
expressly provided for in Article  II:2 of the GATT  1994.339  
7.40.   In the present dispute, Switzerland argues that the additional duties of 25% on steel products 
and 10% on aluminium products constitute "other duties or charges" inconsistent with the second 
sentence of Article  II:1(b) of the GATT  1994. In particular, Switzerland highlights the following 
features:  
a. the additional duties do no t replace, but rather coexist with the pre -existing MFN tariffs;340 
b. the additional duties are extraordinary in nature as "emergency measures" and thus 
cannot be classified as "ordinary" customs duties;341  
c. the additional duties are not applied on an MFN basi s, as imports of steel and aluminium 
products originating in  certain countries are exempted from the se additional duties ;342 
 
332 See Appellate  Body Report, Chile – Price Band System, para. 265. 
333 See Panel  Report , Chile – Price Band System, para. 7.51. 
334 Panel  Report , Dominican  Republic  – Safeguard Measures , para.  7.83.  
335 Appellate  Body Report, China – Auto Parts, para. 158. In Dominican  Republic  – Safeguard Measures , 
the panel thus noted that: "the expression 'ord inary customs duties' in Article  II:1(b) of the GATT  1994 refers 
to duties collected at the border which constitute 'customs duties' in the strict sense of the term" and "this 
expression does not cover all possible extraordinary or exceptional duties colle cted in customs." (Panel  Report , 
Dominican  Republic  – Safeguard Measures, para. 7.85).  
336 Panel  Report , Dominican  Republic  – Safeguard Measures, para. 7.84 (referring to Appellate  Body 
Report, Chile – Price Band System , paras.  216 and 271 -278). See also Appellate  Body Report s, China – Auto 
Parts, para.  162 (noting that "the time at which a charge is collected or paid is not decisive") ; EC – Bananas III 
(Article  21.5 – Ecuador II) / EC – Bananas III (Article  21.5 – US), para.  416 (noting in passing that "it is 
unusual that a tariff concession inscribed in a Member's Schedule would be limited in time") . 
337 See Panel  Report , Dominican  Republic  – Safeguard Measures, para. 7.85 (noting that to determine 
whether the duties are "ordinary customs duties", panels "must consider the design and structure of the 
measures concerned") . See also Appellate  Body Report, Argentina – Textiles  and Apparel, para. 55; 
Panel  Report , Russia – Tariff Treatment, para. 7.92.  
338 See e.g. Appellate  Body Reports, Peru – Agricultural Products , paras.  5.70-5.76; Chile – Price Band 
System (Article  21.5 – Argentina) , paras.  167 and 171; Panel  Report s, Peru – Agricultural Products, 
paras.  7.373 -7.374;  Dominican  Republic  – Import and Sale of Cigarettes, para. 7.115.  
339 Panel  Report s, Dominican  Republic  – Import and Sale of Cigarettes, para. 7.113;  Dominican  Republic  
– Safeguard Measures , para.  7.79. See also Appellate  Body Report, India – Additional Import Duties , 
para. 157.  
340 Switzerland's first written submission, para.  397.  
341 Switzerland's first written submission, para.  398. 
342 Switzerland's first written submission, para.  399. WT/DS556/R  
 
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  d. the additional duties appear to be imposed on a temporary rather than a permanent 
basis;343 and 
e. the characterization of the additiona l duties as "ordinary customs duties" under the 
United  States ' domestic law is not dispositive for its characterization under WTO law.344 
7.41.   In the alternative, Switzerland argues that to the extent that the additional duties are 
considered "ordinary customs duties" under the first sentence, they would be inconsistent with 
Article  II:1(b) because they exceed the United  States ' bound rates.345 
7.42.   The Panel takes due note of Switzerland's view that the additional duties qualify as "other 
duties or charges" u nder the second sentence of Article  II:1(b), and recognizes that the 
United  States  has not raised any arguments contesting this characterization.346 However, the Panel 
is not bound by the arguments raised by a party and can use those arguments freely to dev elop its 
own legal reasoning.347 Moreover, in some circumstances, a panel's duty to conduct an objective 
assessment under Article  11 of the DSU  may require it to assess for itself the applicability of a 
relevant provision, regardless of whether such applicability has been disputed by the parties.348 In 
light of the specific circumstances of this dispute, including the features of the duties at iss ue, the 
Panel considers it necessary to conduct an independent assessment of their characterization as 
"ordinary customs duties" or "other duties or charges" under Article  II:1(b).  
7.43.   Having examined the design and structure of the additional duties, as well  as the domestic 
instruments through which they were operationalized, the Panel considers that the duties are more 
appropriately characterized as "ordinary customs duties" under Article  II:1(b) . In particular, the 
Panel observes that the additional duties are: (a) levied on all imports of the covered steel and 
aluminium products; (b) calculated on an ad valorem basis; (c) described as "tariffs" and "ordinary  
customs dut[ies]" in the relevant Presidential Proclamations; and (d) operationalized as "ordinary 
customs dut[ies]" and inscribed in the "Rates of Duty – General" column of the United  States ' tariff 
schedule.349 These duties are also clearly applicable to products "on their importation into the 
territory" of the United  States  in the sense of Article  II:1(b). 
7.44.   Nonetheless , the Panel is cognizant that the additional duties also bear other features which 
reflect the particular process  under Section  232 through which they were imposed and maintained. 
First, the additional duties were not inscribed through an a mendment or replacement of the existing 
MFN tariff, but rather through inscription in subchapter III of chapter 99 of the HTSUS, titled 
"Temporary Modifications Established Pursuant to Trade Legislation".350 As such, the duties expressly 
apply "in addition"  to any pre -existing tariffs.351 Second, although the additional duties are generally 
applicable on an MFN basis, they are subject to a number of country exemptions.352 Finally, while 
 
343 Switzerland's first written submission, para.  400. Switzerland highlights two key factors in th is 
regard: (a) that the Presidential Proclamations expressly provide that "[t]he Secretary shall continue to 
monitor" the imports of steel and aluminium and articles; and (b) that subchapter III of chapter 99 of the 
HTSUS refers to " [t]emporary modificatio ns established pursuant to trade legislation." (Ibid). (emphasis 
original)  
344 Switzerland's first written submission, para.  401. 
345 Switzerland's first written submission, paras.  392 and 405 -407. 
346 See, however, United  States ' closing statement at the second meeting of the Panel, para.  7 
(indicating that the United  States  has imposed duties on certain steel and alumin ium products "in excess of the 
levels set out in its WTO Goods Schedule").  
347 See Appellate  Body Report, Brazil – Taxation, para. 5.171.  
348 See Appellate  Body Report, Indonesia – Iron or Steel Products, paras.  5.32-5.33. 
349 See Presidential Proclamation 9704 , (Exhibit  CHE-13 and  USA-10); Presidential Proclamation 9705 , 
(Exhibit CHE -8 and  USA-9). 
350 See Presiden tial Proclamation 9704 , (Exhibit CHE -13 and  USA-10), Annex; Presidential Proclamation 
9705, (Exhibit CHE -8 and  USA-9), Annex.  
351 See Presidential Proclamation 9704 , (Exhibit CHE -13 and  USA-10), p. 11621 ; Presidential 
Proclamation 9705 , (Exhibit CHE -8 and  USA-9), p. 11627  (stating  that the duties apply " in addition to  any 
other duties, fees, exactions or charges applicable" to the imported articles). ( emphasis added ) 
352 See sections 2.2.1.2  and 2.2.2.2  for a detailed description.  See also Presidential Proclamation 9704 , 
(Exhibit CHE -13 and  USA-10), p. 11620 ; Presidential Proclamation 9705 , (Exhibit CHE -8 and  USA-9), p. 11626 . 
See also Presidential Proclamation 9710 , (Exhibit CHE -14 and  USA-12); Presidential Proclamation 9711 , 
(Exhibit CHE -9 and  USA-11); Presidential Proclamation 9739 , (Exhibit CHE -15 and  USA-14); Presidential 
Proclamation 9 740, (Exhibit CHE -10 and  USA-13); Presidential Proclamation 9758 , (Exhibit CHE -16 and  USA-
16); and Presidential Proclamation 9759 , (Exhibit CHE -11 and  USA-15). These will be elaborated in more detail 
in the context of Switzerland's claim under Article  I:1 of the GATT  1994. WT/DS556/R  
 
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  the additional duties are not expressly imposed for a temporary period, ce rtain aspects of their 
implementation suggest that they may not be intended as permanent adjustment s to the MFN tariff 
rate.  These include the aforementioned inscription in subchapter III of chapter 99, as well as the 
stipulated requirement in the relevant Presidential Proclamations that "[t]he Secretary shall continue 
to monitor" these duties.353 In the circumstances of this dispute and mindful of these other features, 
the Panel will also consider whether the additional duties as "other duties or ch arges" would be 
inconsistent with the second sentence of Article  II:1(b).  
7.45.   As "ordinary customs duties" under Article  II:1(b), it is evident that the additional duties of 
25% on steel products and 10% on aluminium products exceed the United  States ' bound ra tes of 
0% and 0 -6.5% on steel and aluminium products respectively.354 These products are therefore not 
exempt from ordinary customs duties in excess of those set forth in the United  States ' Schedule, in 
a manner inconsistent with the first sentence of Artic le II:1(b).  Moreover, the United  States ' 
Schedule does not record any "other duties or charges" with respect to the steel and aluminium 
products at issue.355 Even if considered to be "other duties or charges", the additional duties would 
therefore exceed th ose imposed on the entry into force of the GATT  1994 or directly and mandatorily 
required to be imposed thereafter, in a manner inconsistent with the second sentence of 
Article  II:1(b).  
7.46.   Accordingly, the Panel considers that the additional duties are incons istent with the first 
sentence of Article  II:1(b) as "ordinary customs duties" exceeding the United  States ' bound rates 
for the relevant products. Even if the additional duties were considered "other duties or charges", 
the Panel considers that these dutie s would also be inconsistent with the second sentence of 
Article  II:1(b). On either basis, the additional duties on steel and aluminium products would 
therefore be inconsistent with Article  II:1(b) of the GATT  1994. As the additional duties are 
inconsisten t with Article  II:1(b) by exceeding the levels in the United  States ' Schedule, the 
United  States  has necessarily accorded treatment less favourable than that provided for in its 
Schedule. The Panel therefore concludes that the additional duties are also in consistent with 
Article  II:1(a) of the GATT  1994. 
7.4.3   Additional duty on steel products from Türkiye  
7.47.   In August 2018, an additional duty of 50% was imposed on  steel products from Türkiye .356 
As this duty is applicable to the same steel products  as listed in Tabl e 2 above , the United  States ' 
bound rates in respect of those products have already been set out that Table .357 
7.48.   As previously noted, Switzerland argues generally that the additional duties on steel and 
aluminium products constitute "other duties or charges" under the second sentence of 
Article  II:1(b), and in the alternative, "ordinary customs duties" under the first sentence.358 These 
arguments include the additional duty of 50% on steel products in the case of Türkiye .359 
7.49.   In the Panel's view, the add itional duty on steel products from Türkiye  raises similar issues in 
terms of its characterization as either an "ordinary customs dut[y]" or "other dut[y] or charge[]" 
 
353 See Presidential Proclamation 9704 , (Exhibit CHE -13 and  USA-10); Presidential Proclamation 9705 , 
(Exhibit CHE -8 and  USA-9). 
354 See p ara. 7.37 above.  
355 United  States  Bound Concessions at the HS 6 -digit subheading level . 
356 See section 2.2.1.1  for a detailed description. To recall, the additional duty of 50% on steel products 
from Türkiye  was originally imposed in August 2018, and was amended in May 2019 to decrease the duty rate 
to 25%. (See Presidential Proclamation 9772 , (Exhibit CHE -12); Presidential Proclamation 9886 , (Exhibit CHE -
77 and USA -230)). Presidential Proclamation 9886, which amends the duty rate to 25%, states that the 
United  States  has "remove[d] the higher tariff on steel imports from Turkey, and [] instead  impose[d] a 
25 per cent ad valorem tariff on steel imports from Turkey, commensurate with the tariff imposed on such 
articles imported from most countries". (See Presidential Proclamation 9886 , (Exhibit CHE -77 and USA -230), 
p. 23422 ). The Panel recalls th at Switzerland has also requested findings under Article  II:1 of the GATT  1994 in 
respect of Presidential Proclamation 9986. (See Switzerland's response to Panel question No.  97). In this 
regard and  taking into account the Panel's findings in section 7.3.4, we note that any findings concerning the 
general additional duty rate of 25% on steel products would also be applicable to this amended duty r ate for 
steel imports  from Türkiye .  
357 See p ara. 7.37 above.  
358 See paras.  7.40-7.41 above.  
359 See Switzerland's  first written submission, paras.  381-390. WT/DS556/R  
 
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  under Article  II:1(b). For reasons similar to those outlined above360, the Panel consider s that the 
additional duty is an "ordinary customs dut[y]" under the first sentence of Article  II:1(b). In 
particular, the additional duty is: (a) levied on all imports of the covered steel products from Türkiye ; 
(b) calculated on an ad valorem basis; (c) described as a "tariff" or "ordinary customs duty" in the 
relevant Presidential Proclamations; and (d) operationalized as an "ordinary customs duty" and 
inscribed in the "Rates of Duty – General" column of the United  States ' tariff schedule.361  
7.50.   As an "ordi nary customs dut[y]", it is evident that the additional duty of 50% on steel products 
from Türkiye  exceeds the United States' bound rates for the steel products at issue (0%), in a 
manner inconsistent with the first sentence of Article  II:1(b).  Moreover, e ven if considered to be 
"other duties or charges" under the second sentence362, the United  States ' Schedule does not record 
any "other duties or charges" with respect to the steel products at issue.363 On either basis, the 
additional duty on steel products from Türkiye  would therefore be inconsistent with Article  II:1(b) 
of the GATT  1994. As the additional duty on steel products from Türkiye  exceeds the levels set out 
in the United  States ' Schedule, it follows that the United  States  has accorded treatment less 
favourable than that provided for in its Schedule. The Panel therefore concludes that the additional 
duty on steel products from Türkiye  is also inconsistent with Article  II:1(a) of the GATT  1994. 
7.4.4   Additional duties on derivative steel and aluminium products  
7.51.   In January 2020, the United  States  announced additional duties of 25% on derivative steel 
and 10% on derivative aluminium products.364 The following tables identify the derivative steel and 
aluminium products covered by these additional duties, and provide a comparative analysis of the 
United States ' bound rates and its additional duty rates in relation to those products. As with the 
other steel and aluminium products, the United  States ' Schedule similarly does not record any "other 
duties or charges" with respect to these products.365 
Table  4: Derivative Steel Products Subject to Additional Duties under Section  232 
Derivative Steel Products Subject to Additional Duties  
 
#  
HTS Code  Rates of customs duties  
Bound rates366 Additional duty  
1. 7317.00.30  
0-2.5%  +25%  2. 7317.00.5503  
3. 7317.00.5505  
4. 7317.00.5507  
5. 7317.00.5560  
6. 7317.00.5580  
7. 7317.00.6560  
8. 8708.10.30  
9. 8708.29.21  
Source : United  States  Bound Concessions at the HS 6 -digit subheading level; Presidential Proclamation 9980367 
 
360 See para . 7.43 above.  
361 See Presidential Proclamation 9772 , (Exhibit CHE -12). 
362 These considerations may be relevant in light of other features of the additional duty on steel 
products from Türkiye , such as: (a) being inscribed in subchapter III of chapter 99 of the HTSUS  titled 
"Temporary Modifications Established Pursuant to Trade Legislation "; (b) applying "in addition" to any 
pre-existing duties; and (c) solely appl ying to Türkiye . (See Presidential Proclamation 9772 , (Exhibit CHE -12)).  
363 United  States  Bound Concessions at t he HS 6 -digit subheading level.  
364 See Presidential Proclamation 9980 , (Exhibit CHE -72 and USA -225).  As noted  above, Switzerland 
argues generally that the additional duties on steel and aluminium products constitute "other duties or 
charges" inconsistent wi th Article  II:1(b) but did not raise specific arguments in respect of the additional duties 
on derivative products. (See paras.  7.40-7.41 above).   
365 United  States  Bound Concessions at the HS 6 -digit subheading level . 
366 Pursuant to Chapters 73 and 87 of the HTSUS, the generally applied rate for these products is also 
0-2.5% for all relevant subheadings.  
367 See P residential Proclamation 9980 , (Exhibit CHE -72 and USA -225). The Panel additionally relied on 
data from the WTO' s CTS Database and online versions of the United  States ' harmonized tariff schedule, 
https://hts.usitc.gov/current  (accessed 22  June 2022).  WT/DS556/R  
 
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  Table  5: Derivative Aluminium Products Subject to Additional Duties under Section  232 
Derivative Aluminium Products Subject to Additional Duties  
 
#  
HTS Code  Rates of customs duties  
Bound rates368 Additional duty  
1. 7614.10.50  
2.5-5.7%  +10%  2. 7614.90.20  
3. 7614.90.40  
4. 7614.90.50  
5. 8708.10.30  
6. 8708.29.21  
Source : United  States  Bound Concessions at the HS 6 -digit subheading level ; Presidential Proclamation 9980369 
 
7.52.   In the Panel's view, the additional duties on derivative steel and aluminium products raise 
similar issues in terms of their characterization as either "ordinary custo ms duties" or "other duties 
or charges" under Article  II:1(b). For reasons similar to those outlined above370, the Panel considers 
that the additional duties on derivative products are "ordinary customs duties" under the first 
sentence of Article  II:1(b). I n particular, the additional duties are: (a) levied on all imports of the 
covered derivative steel and aluminium products; (b) calculated on an ad valorem basis; (c) 
described as "tariffs" or "ordinary customs dut[ies]" in the relevant Presidential Proclam ations; and 
(d) operationalized as "ordinary customs dut[ies]" and inscribed in the "Rates of Duty – General" 
column of the United  States ' tariff schedule.371 
7.53.   As "ordinary customs duties", it is evident that the additional duties of 25% on derivative 
steel products and 10% on derivative aluminium products exceed the United  States ' bound rates, 
which range from 0-2.5%  and 2.5 -5.7% for the derivative aluminium and steel products at issue 
respectively, in a manner inconsistent with the first se ntence of Article  II:1(b).372 Moreover, ev en if 
considered to be "other duties or charges"  under the second sentence373, the United  States ' Schedule 
does not record any "other duties or charges" with respect to the steel and aluminium products at 
issue.374 On either basis, the additional duties on derivative products would therefore be inconsistent 
with Article  II:1(b) of the GATT  1994. As the additional duties on derivative steel and aluminium 
products exceed the levels set on in the United  States ' Schedule, it follows that the United  States  
has accorded treatment less favourable than that provided for in its Schedule. The Panel therefore 
concludes that the additional duties on derivative steel and aluminium products are also inconsistent 
with Article  II:1(a) of the GATT  1994.  
7.4.5   Conclusion  
7.54.   Regarding Switzerland's claims under Article  II of the GATT  1994, the Panel concludes that:  
 
368 Pursuant to Chapters 76 and 87 of the HTSUS , the generally applied rate for these products is 0 -
5.7% for all relevant subheadings. In respect of HTS Code 8708.29.21, WTO document WT/Let/1098 lists this 
sub-heading 8708.29.21 at a bound duty rate of 2.5%. In the HTSUS, sub -heading 8708.29.21 is duty  free. 
369 See Presidential Proclamation 9980 , (Exhibit CHE -72 and  USA-225).  The Panel additionally relied on 
data from the WTO's CTS Database and online versions of the United  States ' harmonized tariff schedule, 
https://hts.usitc.gov/current  (accessed 22  June 2022) . 
370 See para.  7.43 above.  
371 See Presidential Proclamation 9980 , (Exhibit CHE -72 and USA -225).  
372 See para.  7.51 above.  
373 These considerations may be relevant in light of other features of the additional duties on derivative 
steel and aluminium products, such as: (a) being inscribed in subchapter III of chapter 99 of the HTSUS  titled 
"Temporary Modifications Established Pursuant to Trade Legislation "; (b) applying "in addition" to any 
pre-existing duties; and (c) being subject to ex emptions for certain countries. (See Presidential Proclamation 
9980, (Exhibit CHE -72 and  USA-225)).  
374 United  States  Bound Concessions at the HS 6 -digit subheading level . WT/DS556/R  
 
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  a. the additional duties of 25% on steel products and 10% on aluminium products do not 
accord the treatment provided for in the United  States' Schedule, contrary to 
Article  II:1(b) and Article  II:1(a) of the GATT  1994; 
b. the additional duty of 50% on steel products from Türkiye  does not accord the treatment 
provided for in the United  States ' Schedule, contrary to Article  II:1(b) and Article  II:1(a) 
of the GATT  1994; and  
c. the additional duties of 25% on derivative steel products and 10% on derivative aluminium 
products do not accord the treatment provided for in the United  States ' Schedule, contrary 
to Article  II:1(b) and Article  II:1(a) of the GATT  1994. 
7.5  Article  I:1 of the GATT  1994  
7.5.1   Introduction  
7.55.   Switzerland argues that the United  States  has imposed the additional dut ies on imports of 
steel products from all countries except Australia, Argentina, the Republic of Korea , and Brazil, and 
on imports of aluminium products from all countries except Argentina and Australia, inconsistently 
with Article  I:1 of the GATT  1994.375 In Switzerland's view, the additional duties constitute "customs 
duties" and thus fall within the scope of Article  I:1.376 Switzerland also considers that origin is the 
sole criterion to distinguish between the products and it follows that the products must be considered 
"like" within the meaning of Article  I:1.377 Switzerland further advances that, by excluding from the 
application of the additional import duties products which originate in certain countries, the 
United  States  is granting an "advantage" within t he meaning of Article  I:1, as it is clear that the 
exemption creates more favourable competitive opportunities for those products in comparison to 
products from all other countries that are subject to those duties.378 Finally, Switzerland argues that 
this a dvantage has not been accorded "immediately" and "unconditionally" to like products from 
other WTO Members, and that the United  States  has thus acted inconsistently with Article  I:1 of the 
GATT  1994.379 
7.56.   The United  States  has not advanced any arguments or ev idence contesting the complainant 's 
claim under Article  I:1 of the GATT  1994.380  
7.57.   Article  I:1 of the GATT  1994 provides:  
1. With respect to customs duties and charges of any kind imposed on or in connection 
with importation or exportation or imposed on the international transfer of payments 
for imports or exports, and with respect to the method of levying such duties and 
charges, and with respect to all rules and formalities in connection with importation and 
exportation, and with respect to all matters referred to in paragraphs 2 and 4 of 
Article  III,* any advantage, favour, privilege or immunity granted by any Member to 
any product originating in or destined for any other country shall be accorded 
immediately and unconditionally to the like product orig inating in or destined for the 
territories of all other [Members].  
7.58.   Article  I:1 of the GATT  1994 prohibits, with respect to measures falling within its scope of 
application, discrimination among like products originating in or destined for different countri es.381 
The obligation to accord most -favoured -nation treatment as set out in Article  I:1 of the GATT  1994 
 
375 Switzerland's first written submission, paras.  414 and 422 -434. See also Switzerland's response to 
Panel's questions following the first meeting, Annex  I, fn 1; response to Panel question No.  97, para.  81. 
376 Switzerland's first written submission, paras.  425-428. 
377 Switzerland's first written submission, para.  429. 
378 Switzerlan d's first written submission, paras.  430-432. Switzerland argues that, in fact, the panels 
and the Appellate  Body have expressly recognized that duty  free treatment or an import duty exemption 
available to imports of a products originating in certain count ries is an "advantage" within the meaning of 
Article  I:1. (Ibid. para.  430).  
379 Switzerland's first written submission, paras.  433-434. 
380 See United  States ' closing statement at the second meeting of the Panel, para.  7 (the United  States  
accepting that it "has imposed duties on certain steel and aluminum products on a non -MFN basis and in 
excess of the levels set out in its WTO Goods Schedule").  
381 Appellate  Body Report, Canada – Autos, para. 84. WT/DS556/R  
 
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  has been understood to require equality of competitive opportunities for like imported products from 
any Member.382 
7.59.   The Panel will proceed by examining the challenged measures under Article  I:1 of the 
GATT  1994, specifically concerning  (a) the country exemptions for steel and aluminium products and  
(b) the country exemptions for derivative steel and aluminium products.383 
7.5.2   Country exemptions for steel and a luminium products  
7.5.2.1   Australia, Argentina, Brazil, and the Republic of Korea  
7.60.   As described in greater detail above384, in March 2018, the United  States  imposed additional 
import duties of 25% on steel products and 10% on aluminium products.385 At that time, Aust ralia, 
Argentina, Brazil, and the Republic of Korea  were temporarily exempted from the additional duties 
on both steel and aluminium products.386 By May 2018, the United  States  had agreed to various 
"satisfactory alternative means" with these countries, inc luding: (a) exemptions  for steel and 
aluminium products from Australia ; and (b) exemptions for steel and aluminium products from 
Argentina, as well as steel products from Brazil and the Republic of Korea , including through the 
alternative of import quotas.387 In Switzerland's view, by imposing additional duties on imports of 
steel and aluminium products from all countries except Australia, Argentina, the Republic of Korea , 
and Brazil, the United  States  has granted to products from those countries an "advantage,  favour, 
privilege or immunity" within the meaning of Article  I:1 which has not been accorded immediately 
and unconditionally to like products originating in other WTO Members, including Switzerland .388 
7.61.   The Panel recalls that the exemptions in question rela te to the additional duties on steel and 
aluminium products, which have been found under Article  II:1(b) of the GATT  1994 to constitute 
"ordinary customs duties" applicable on importation into the territory of the United  States .389 As 
such, they also relate  to "customs duties and charges " connect ed with importation  falling within the 
scope of Article  I:1 of the GATT  1994.390  
7.62.   By design, the country exemptions  exclude steel and aluminium products of certain origins 
from the application of the additional duties, conferring differential treatment to exempted products 
in comparison to those subject to the duties . Furthermore, it is undisputed that the additional d uties 
apply to all  qualifying products imported into the United  States  and that the relevant country 
exemptions  apply to products from select countries (i.e. Australia, Argentina, Brazil, and the Republic 
 
382 See Appellate  Body Report, EC – Seal Products , paras.  5.86-5.87. Under Article  I:1 of the 
GATT  1994, a complainant must demonstrate that: ( a) the measure at issue falls within the scope of 
Article  I:1; ( b) the imported products at issue are "like"; ( c) the measure confers an "advantage, favour, 
privilege or i mmunity" on any product originating in the territory of any country; and ( d) the advantage, 
favour, privilege or immunity granted is not extended "immediately" and "unconditionally" to like products 
originating in the territory of all Members.  (See Appella te Body Report, EC – Seal Products, para. 5.86).  
383 See Switzerland's first written submission, paras.  422-434; response to Panel's questions following 
the first meeting, Annex  I, fn 1; and response to Panel question No.  97. As part of its claim under Artic le I:1, 
Switzerland clarified that any references to the additional import duty of 25% on imports of certain steel 
products "should be understood as equally referring to the additional duty of 50% applicable to imports of 
certain steel products from Turkey". (See Switzerland's first written submission, para.  414 and fn  476). As 
such, the Panel does not understand Switzerland to have raised a distinct claim under Article  I:1 in respect of 
the 50% duty, but to have included it as part of the "additional  duties" to which the challenged country 
exemptions relate. The Panel has therefore not made distinct findings in respect of this duty under Article  I:1. 
384 See section 2.2 above.  
385 See Presidential Proclamation 9704 , (Exhibit  CHE-13 and  USA-10); Presidential Proclamation 9705 , 
(Exhibit CHE -8 and  USA-9). 
386 See Presidential Proclamation 9710 , (Exhibit CHE -14 and  USA-12); Presidential Proclamation 9711 , 
(Exhibit CHE -9 and  USA-11). 
387 See Presidential Proclamation 9739 , (Exhibit CHE -15 and  USA-14); Presidential Proclamation 9740 , 
(Exhibit CHE -10 and  USA-13); Presidential Proclamation 9758 , (Exhibit CHE -16 and  USA-16); and Presidential 
Proclamation 9759 , (Exhibit CHE -11 and  USA-15). These exemptions were extended based on the 
United  States ' "security relationship" with these Members. (Ibid).  
388 Switzerland's first written submission, para.  414. 
389 Moreover, even if not considered to qualify as "ordinary customs duties", the additional duties would 
in any event be inconsistent with the second sentence of Article  II:1(b) of the GATT  1994 as "other duties or 
charges" . See section 7.4 above.  
390 Previous panels have found exemptions from import duties to fall within the scope of Article  I:1 of 
the GATT  1994. (See e.g. Panel  Report s, Canada  – Autos, para. 10.16; Indonesia – Autos, paras.  7.3-7.5). WT/DS556/R  
 
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  of Korea ) solely on the basis of origin.391 The Unit ed States  does not contest that the measures 
exempt certain products based exclusively on origin contrary to the obligation to accord 
most-favoured -nation treatment under Article  I:1.392 Therefore, with respect to the imposition of 
customs duties, the count ry exemptions accord an "advantage"393 to steel and aluminium products 
from the exempted countries that is not accorded immediately and unconditionally to "like 
products"394 originating in non -exempted countries. The Panel th us conclude s that, by granting 
country exemptions from the additional duties to Australia, Argentina, Brazil , and the Republic of 
Korea , the United  States  acted inconsistently with Article  I:1 of the GATT  1994. 
7.63.   In the context of its claim under Article  I:1, Switzerlan d also raised specific arguments in 
respect of the import quotas granted to Argentina, Brazil, and the Republic of Korea395, and clarified 
that in its view, the relevant "country exemptions" include "the seeking of and/or conclusion of 
'agreements' with a v iew to exempt imports from those countries from the duties and/or quotas" .396 
The Panel notes that such quotas and any other "agreements" relate solely to countries that are 
exempted from the additional duties, and the existence of such quotas or "agreement s" does not 
negate the fact that the products to which they apply are exempted from the additional duties.397 
Given the foregoing finding on the advantage accorded by the exemptions, the Panel does not 
consider  it necessary for the purposes of this dispute to determine whether any particular alternative 
treatment of exempted products  from countries such as Australia, Argentina, Brazil, and the Republic 
of Korea , including under any import quota or other "agreements" , would constitute a distinct 
violation of Article  I:1 of the GATT  1994. 
7.5.2.2   Canada and Mexico  
7.64.   When the United  States  imposed additional import duties of 25% on steel products and 10% 
on aluminium products in March 2018, it exempted steel and aluminium products from Canada and 
Mexico from those additio nal duties.398 After March 2018, the country exemptions for Canada and 
Mexico went through a number of iterations, as elaborated in further detail in earlier sections of this 
Report.399 Switzerland challenges the exemptions for steel and aluminium products f rom Canada 
 
391 See section s 2.2.1.2  and 2.2.2.2  above.  The Panel notes that a "presumption of likeness " has been 
applied in prior disputes in situations where the only distinguishing factor under the challenged measure was 
the origin of the products.  These previous disputes  suggest that , where a measure makes distinctions 
exclusively on the basis of origin, it will typically not be necessary to conduct a detailed analysis of "likeness"  of 
the relevant products . (See Panel  Report , Russia – Railway Equipment , paras.  7.897 -7.899; see also 
Panel  Report s, Colombia – Ports of Entry , paras.  7.355 -7.356; US – Poultry (China) , paras.  7.424 -7.432 ). 
392 See United  States ' closing statement at the second meeting of the Panel, para.  7 (accepting that it 
has imposed duties on certain steel a nd aluminium products "on a non -MFN basis").  
393 See Appellate  Body Report, Canada – Autos, para. 79; Panel  Report s, EC – Bananas III, para. 7.239; 
EC – Seal Products, para. 7.595 . Previous panels have found country exemptions conferring duty free 
treatment to constitute an "advantage" under Article  I:1. (See Panel  Report , EC – Bananas III (Article  21.5 – 
Ecuador  II), paras.  7.152 -7.153. See also  Appellate  Body Report,  EC – Bananas III (Article  21.5 – Ecuador II) / 
EC – Bananas III (Article  21.5 – US), para.  353). 
394 See fn  391 above. In the specific circumstances of this dispute, including the lack of any rebuttal by 
the United  States , the Panel considers  that the  challenged  measures apply to "like products" within the 
meaning of Article  I:1 of the GATT  1994, without the need to conduct a detailed "likeness" analysis.  
395 See Switzerland's first written submission, para.  431. The Panel notes  that, in response to its 
questions, Switzerland clarified that its claim under  Article  I:1 related only to the "country exemptions", and 
not to the "import quotas". (Switzerland's response to Panel's questions following the first meeting, Annex  I). 
396 See Switzerland's response to Panel's questions following the first meeting, Annex  I, fn 1.  
397 The Panel further notes  that all the "satisfactory alternative means", regardless of their specific form, 
were extended by the United  States  on the basis of their "security relationship" with the exempted countries 
and based on the determinatio n that " imports from these countries [would]  no longer threaten to impair the 
national security ". (See Presidential Proclamation 9710 , (Exhibit CHE -14 and USA -12); Presidential 
Proclamation 9711 , (Exhibit CHE -9 and USA -11); Presidential Proclamation 9739 , (Exhibit CHE -15 and USA -
14); Presidential Proclamation 9740 , (Exhibit CHE -10 and USA -13); Presidential Proclamation 9758 , (Exhibit 
CHE-16 and USA -16); and Presidential Proclamation 9759 , (Exhibit CHE -11 and USA -15)). 
398 See Presidential P roclamation 9704 , (Exhibit CHE -13 and  USA-10); Presidential Proclamation 9705 , 
(Exhibit CHE -8 and USA -9).  
399 See sections 2.2 and 7.3 above . See also Presidential Proclamation 9739 , (Exhibit CHE -15 and  USA-
14); Presidential Proclamation 9740 , (Exhibit CHE -10 and  USA-13); Presidential Proclamation 9758 , (Exhibit 
CHE-16 and  USA-16); Presidential Proclamation 9759 , (Exhibit CHE -11 and  USA-15); Presidential Proclamation 
9893, (Exhibit CHE -74 and USA -232); Presidential Proclamation 9894 , (Exhibit CHE -73 and USA -233); and 
Presidential Proclamation 10060 , (Exhibit CHE -75 and USA -234). WT/DS556/R  
 
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  and Mexico, as set forth in Presidential Proclamations 9893 and 9894 of May 2019, under Article  I:1 
of the GATT  1994.400 
7.65.   The country exemptions for Canada and Mexico relate to the same "customs duties and 
charges" connected with importation in the sense of Article  I:1 of the GATT  1994.401 It is also 
undisputed that these country exemptions apply to products from select countries (i.e. Canada and 
Mexico) exclusively on the basis of origin.402 Therefore, with respect to the imposition  of customs 
duties, these country exemptions accord an "advantage" to steel and aluminium products from the 
exempted countries that is not accorded immediately and unconditionally to "like products" 
originating in non -exempted countries.403 The Panel thus c oncludes that, by granting country 
exemptions from the additional duties to Canada and Mexico, the United  States  acted inconsistently 
with Article  I:1 of the GATT  1994.  
7.66.   Given this finding, the Panel again does not consider it necessary to determine whethe r any 
particular alternative treatment of exempted products from Canada and Mexico, including under any 
other "agreements" , would constitute a distinct violation of Article  I:1 of the GATT  1994.404 
7.5.3   Country exemptions for derivative  steel and aluminium produ cts 
7.67.   In January 2020, the United  States  announced additional duties of 25% on derivative steel 
and 10% on derivative aluminium products. It also announced the following exemptions from these 
duties: (a) exemptions for derivative steel products from Australi a, Argentina, Brazil, the Republic 
of Korea , Canada, and Mexico; and (b) exemptions for derivative aluminium products from Australia, 
Argentina, Canada, and Mexico.405 Switzerland has challenged the Presidential Proclamation setting 
forth these duties and e xemptions under Article  I:1 of the GATT  1994.406 
7.68.   The Panel has previously found that the additional duties on derivative products qualify as 
"ordinary customs duties" under Article  II:1(b) of the GATT  1994, and thus similarly considers that 
the country exem ptions from these d uties relate to "customs duties and charges" in the sense of 
Article  I:1 of the GATT  1994.407 It is also undisputed that these country exemptions apply to products 
from select countries (i.e. Australia, Argentina, Brazil, the Republic of Korea , Canada, and Mexico) 
exclusively on the basis of origin.408 Therefore, with respect to the imposition of cu stoms duties, 
these country exemptions accord an "advantage" to steel and aluminium products from the 
exempted countries that is not accorded immediately and unconditionally  to "like products" 
originating in non -exempted countries.409 The Panel thus conclude s that, by granting country 
exemptions from the additional duties on derivative products to Australia, Argentina, Brazil, the 
Republic of Korea , Canada, and Mexico , the United  States  acted inconsistently with Article  I:1 of the 
GATT  1994. 
7.5.4   Conclusio n  
7.69.   Regarding Switzerland's claims under Article  I of the GATT  1994, the Panel concludes that:  
a. the country exemptions for steel and aluminium products confer an advantage to products 
from Australia, Argentina, Brazil, and  the Republic of Korea  that has not been accorded 
 
400 See also Switzerland's response to Panel's questions following the first meeting, Annex  I, fn 1; 
response to Panel question No.  87, paras.  38-44 (challenging the "exclusion of imports of steel and aluminium 
products from Canada and Mexico from the additional import duties") , and No.  97, para.  81 (challenging the 
"exclusion of imports of steel and aluminium products from Canada and Mexico from the additional import 
duties " set out in Presidential Proclamation s 9893 and 989 4 under Article  I:1). 
401 See para.  7.61 above. 
402 See para.  7.62 above . 
403 See fns 391 and 393 above.  
404 See para.  7.63 above.  
405 Presidential Proclamation 9980 , (Exhibit CHE -72 and USA -225).  
406 Switzerland's response to Panel question No.  97, para.  81 (challenging the "[a] dditiona l import 
duties on the derivatives of steel and aluminium products " imposed by Presidential Proclamation 9980 under 
Article  I:1 of the GATT  1994). 
407 See section s 7.4.4 and 7.4.5 above . See also para. 7.61 above . 
408 See para.  7.62 above . 
409 See fns 391 and 393 above.  WT/DS556/R  
 
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  immediately and unconditionally to like products from all other Members, in a manner 
inconsistent with Article  I:1 of the GATT  1994; 
b. the country exemptions for steel and aluminium products confer an advantage to products 
from Canada and Mexic o that has not been accorded immediately and unconditionally to 
like products from all other Members, in a manner inconsistent with Article  I:1 of the 
GATT  1994; and 
c. the country exemptions for derivative steel and aluminium products confer an advantage 
to products from Australia, Argentina, Brazil, the Republic of Korea , Canada, and Mexico 
that has not been accorded immediately and unconditionally to like products from all other 
Members, in a manner inconsistent with Article  I:1 of the GATT  1994. 
7.6  Article  XI:1 of the GATT  1994  
7.6.1   Introduction  
7.70.   Switzerland argues that the import adjustments also consist of quotas imposed on imports of 
steel products from the Republic of Korea , Argentina, and Brazil , and on imports of aluminium 
products from Argentina, inconsistent ly with Article  XI:1 of the GATT  1994.410 In Switzerland's view, 
these quotas restrict the quantities of steel and aluminium products that can be imported from those 
countries by imposing a maximum ceiling on those products; in other words, they have a limiting 
effect. Thus, Switzerland considers  that the measures at issue, on their face, impose quantitative 
restrictions in violation of Article  XI:1.411  
7.71.   The United  States  has not advanced any arguments or evidence contesting the complainant's 
claim under Article  XI:1 of the GATT  1994.412  
7.72.   Article  XI:1 of the GATT  1994 provides that:  
1. No prohibitions or restrictions other than duties, taxes or other charges, whether 
made effective through quotas, import or export licences or other measures, shall be 
instituted or maintained by any Member on the impo rtation of any product of the 
territory of any other Member or on the exportation or sale for export of any product 
destined for the territory of any other Member.  
7.73.   Article  XI:1 lays down a general obligation to eliminate quantitative restrictions by prohib iting 
Members from instituting or maintaining prohibitions or restrictions other than duties, taxes, or other 
charges on the importation, exportation, or sale for export of any product of another Member or 
destined for another Member.413 Such prohibitions o r restrictions are prohibited whether or not they 
are "made effective" through "quotas, import or export licenses or other measures".414 
7.74.   The Panel will proceed by examining the challenged measures under Article  XI:1 of the 
GATT  1994, specifically concerning  the import quotas for steel and aluminium products.415 
 
410 Switzerland's first written submission, para.  435. See also Switzerland's second w ritten submission, 
paras.  22-23; response to Panel's questions following the first meeting, Annex  I. 
411 Switzerland's first written submission, paras.  446-448. 
412 See United  States ' closing statement at the second meeting of the Panel, para.  7. 
413 Previous panels and the Appellate  Body have noted that the scope of Article  XI:1 is broad, capturing 
any measures through which a prohibition or restriction is produced or becomes operative. (See e.g. 
Appellate  Body Report s, Argentina – Import Measures , paras. 5.216-5.219 ; Panel  Report , India - Quantitative 
Restrictions , para.  5.128 ). 
414 See e.g. Panel  Report , Colombia – Textiles (Article  21.5 – Colombia)/ Colombia – Textiles 
(Article  21.5 – Panama) , para.  7.160.  
415 See Switzerland's first written submission, paras.  435-448; response to Panel's questions following 
the first meeting, Annex  I. Switzerland also challenges Section  232 as repeatedly interpreted and the ongoing 
use of Section  232 under Article  XI of the GA TT 1994 and, relatedly, Article  XVI:4 of the WTO Agreement  
(Switzerland's first written submission, para s. 610 and 613 ). The Panel does not find it necessary to rule on 
this claim  given the circumstances of the present dispute, its overall findings , and its mandate to make such 
findings as will assist the DSB in making the recommendations or giving the rulings provided for in the covered 
agreements.  WT/DS556/R  
 
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  7.6.2   Import quotas for steel and aluminium products  
7.75.   By May 2018, the United  States  imposed import quotas as an alternative to the additional 
duties on steel and aluminium products for: (a) steel and alumini um products from Argentina; (b) 
steel products from Brazil; and (c) steel products from the Republic of Korea .416 Switzerland 
challenges these as quantitative restrictions that are prohibited under Article  XI:1 of the 
GATT  1994.417 
7.76.   The challenged measures comprise import quotas for steel and aluminium products from 
Argentina, Brazil, and the Republic of Korea . Such "quotas" are expressly listed in Article  XI:1 as a 
method by which prohibitions or restrictions on importation may not b e made effective.418 The 
United  States  does not contest that the import quotas prohibit or restrict importation of steel  and 
aluminium products, contrary to the obligation to eliminate quantitative restrictions set forth in 
Article  XI:1 of the GATT  1994.419 Based on these considerations , the Panel concludes that  the import 
quotas for steel and aluminium products from Argenti na, Brazil , and the Republic of Korea  are 
inconsistent with Article  XI:1 of the GATT  1994. 
7.6.3   Conclusion  
7.77.   Regarding Switzerland's claims under Article  XI of the GATT  1994, the Panel concludes that 
by imposing import quotas on steel and aluminium products from  Argentina, Brazil , and the Republic 
of Korea , the United  States  has instituted prohibitions or restrictions other than duties, taxes or 
other charges on the importation of those products of the territory of those Members , inconsistently 
with Article  XI:1 of the GATT  1994. 
7.7  Article  X:3 of the GATT  1994  
7.78.   Switzerland challenges the administration of the Presidential Proclamations adjusting steel 
and aluminium imports into the United  States  under Article  X:3(a) of the GATT  1994.420 According 
to Switz erland, the manner in which the United  States  administers these proclamations in relation 
to the possibility of agreeing on "alternative means"  to the additional duties  on steel and aluminium 
imports is inconsistent with Article  X:3(a) of the GATT  1994.421 Switzerland also considers that the 
United  States  fails to administer in a reasonable manner the product exclusion mechanism set out 
in these proclamations, through which relief can be sought from the additional duties on steel and 
aluminium products.422 Finally, Switzerland argues that the administration of the Presidential 
Proclamations is not uniform or reasonable due to the lack of any criteria or guidelines as to how 
the US Secretary of Commerce should assess the need to amend or discontinue the measure s at 
issue.423 The United  States  has not advanced any arguments or evidence contesting Switzerland's 
claims under Article  X:3(a) of the GATT  1994. 
7.79.   The Panel recalls its findings of inconsistency in relation to the additional duties , country 
exemptions and import quotas on steel and aluminium under the GATT  1994. The Panel considers 
that the findings of inconsistency under other provisions of the GATT  1994 are sufficient, in the 
circumstances of the present dispute, to assist the DSB in making the recommendat ions or in giving 
 
416 See Presidential Proclamation 97 40, (Exhibit CHE -10 and USA-13); Presidential Proclamation 9758 , 
(Exhibit CHE -16 and USA-16); and Presidential Proclamation 9759 , (Exhibit CHE -11 and USA-15). 
417 Switzerland's first written submission, paras.  435-448. 
418 WTO and GATT panels have previously f ound import and export quotas to constitute "restrictions" 
prohibited by Article  XI:1, as such quotas necessarily have a limiting effect. (See Panel  Report s, China – Raw 
Materials , paras.  7.207 -7.209 and 7.224; China – Rare Earths , para.  7.200; and GATT Panel  Report , EEC – 
Import Restrictions , paras.  9 and 31 -32). 
419 See United  States ' closing statement at the second meeting of the Panel, para.  7. 
420 Switzerland's first written submission, section IV. E.5. See also Switzerland's respo nse to Panel 
question No.  97 (clarifying that its claims under Article  X:3(a) extend to  Presidential Proclamations 9886 
(amending duty for steel products from Türkiye), 9893 and 9894 (exempting imports from Canada and Mexico 
from the additional duties), 99 80 (imposing duties on derivative products), and 10060 (re -imposing duty of 
10% on steel products from Canada) ). 
421 Switzerland's first written submission, paras.  449 and  472-479. 
422 Switzerland's first written submission, paras.  450 and 480-488. 
423 Switzerland's first written submission, paras.  451 and 489-492. WT/DS556/R  
 
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  the rulings provided for in the covered agreements  as required under the DSU.424 In light of these 
findings, the Panel does not consider it necessary to make findings on Switzerland's  claims relating 
to the administration of the process es for excluding certain countries or products from measures  
that have already been found inconsistent with other obligations under the GATT  1994.425 The Panel 
thus declines to make findings  regarding the  claims under Article  X:3(a) of the GATT  1994. 
7.8  Article  XIX of the GATT  1994  and the Agreement on Safeguards  
7.8.1   Introduction  
7.80.   Switzerland claims that certain measures at issue are safeguard measures and are 
inconsistent with certain obligations under Article  XIX of the GATT  1994 and the Agreement on 
Safeguards. Switzerland also claims that certain measures at issue constitute "voluntary export 
restraints, orderly marketing arrangements or any other similar measures on the export or the 
import side" within the me aning of Article  11.1(b) of the Agreement on Safeguards. The 
United  States  disputes the applicability of Article  XIX of the GATT  1994 and the Agreement on 
Safeguards to the measures at issue and additionally argues that Article  XXI of the GATT  1994 is a 
defence to the complainant's claims under Article  XIX of the GATT  1994 and the Agreement on 
Safeguards.  
7.81.   The Panel will first address the parties' disagreement as to the applicability of Article  XIX of 
the GATT  1994 and the Agreement on Safeguards to the meas ures at issue.426 In doing so, the Panel 
will address specific issues of interpretation contested by the parties in accordance with Article  3.2 
of the DSU and customary rules of interpretation of public international law. The Panel will then 
assess the evid ence and arguments submitted by the parties in relation to the relevant measures at 
issue in light of the conclusions reached regarding the interpretation of Article  XIX of the GATT  1994 
and the Agreement on Safeguards.  
7.8.2   Interpretation of Article  XIX of the  GATT  1994  and the Agreement on Safeguards in 
accordance with Article  3.2 of the DSU  
7.82.   Article  XIX of the GATT  1994 is entitled "Emergency Action on Imports of Particular Products" 
and provides in relevant part:  
1. (a) If, as a result of unforeseen developm ents and of the effect of the obligations 
incurred by a contracting party under this Agreement, including tariff concessions, any 
product is being imported into the territory of that contracting party in such increased 
quantities and under such conditions as to cause or threaten serious injury to domestic 
producers in that territory of like or directly competitive products, the contracting party 
shall be free, in respect of such product, and to the extent and for such time as may be 
necessary to prevent or remedy such injury, to suspend the obligation in whole or in 
part or to withdraw or modify the concession.  
7.83.   Article  1 of the Agreement on Safeguards is a "General Provision" and provides:  
 
424 See e.g. Appellate  Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program , 
paras . 5.189 -5.190 and 5.194; US – Upland Cotton , para.  732. The Panel further notes various in stances in 
which previous panels have declined to make findings under Article  X:3 of the GATT  1994 based on other 
findings of inconsistency concerning the underlying measure being administered, including duties in excess of 
the bound rates in a Member's Sc hedule of Concessions. (See Panel  Report s, Peru – Agricultural Products, 
para. 7.501; Argentina – Import Measures , para.  6.498; Indonesia – Autos, para. 14.152; and Russia – 
Railway Equipment, para. 7.939).  
425 The Panel similarly does not consider it neces sary to address claims relating to the administration of 
the process by which such measures, which have already been found inconsistent with other obligations un der 
the GATT  1994, may be amended or discontinued.  
426 Switzerland also challenges Section  232 as repeatedly interpreted and the ongoing use of 
Section  232 under Article  XIX of  the GATT  1994, the Agreement on Safeguards  and, relatedly, Article  XVI:4 of 
the WTO Agreement  (Switzerland's first written submission, para s. 584 and 613 ). The Panel does not  find it 
necessary to rule on this claim  given the circumstances of the present dispute, its overall findings , and its 
mandate to make such findings as will assist the DSB in making the recommendations or giving the rulings 
provided for in the covered agre ements.  WT/DS556/R  
 
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  This Agreement establishes rules for the application of safeguard mea sures which shall 
be understood to mean those measures provided for in Article  XIX of GATT  1994. 
7.84.   Article  11 of the Agreement on Safeguards contains the following provisions on "Prohibition 
and Elimination of Certain Measures":  
1. (a) A Member shall not take or seek any emergency action on imports of particular 
products as set forth in Article  XIX of GATT  1994 unless such action conforms with the 
provisions of that Article  applied in accordance with this Agreement.  
(b) Furthermore, a Member shall not seek, take or maintain any voluntary export 
restraints, orderly marketing arrangements or any other similar measures on the export 
or the import side.[3],[4] These include actions taken by a single Member as well as 
actions under agreements, arrangements a nd understandings entered into by two or 
more Members. Any such measure in effect on the date of entry into force of the 
WTO Agreement  shall be brought into conformity with this Agreement or phased out in 
accordance with paragraph 2.  
(c) This Agreement doe s not apply to measures sought, taken or maintained by a 
Member pursuant to provisions of GATT  1994 other than Article  XIX, and Multilateral 
Trade Agreements in Annex  1A other than this Agreement, or pursuant to protocols and 
agreements or arrangements con cluded within the framework of GATT  1994. 
3 An import quota applied as a safeguard measure in conformity with the relevant provisions of 
GATT  1994 and this Agreement may, by mutual agreement, be administered by the exporting 
Member. 
4 Examples of similar m easures include export moderation, export -price or import -price 
monitoring systems, export or import surveillance, compulsory import cartels and discretionary 
export or import licensing schemes, any of which afford protection.  
 
7.85.   The Panel notes that a thres hold question presented by the parties' arguments concerns the 
applicability of Article  XIX of the GATT  1994 and the Agreement on Safeguards to the measures at 
issue. Switzerland emphasizes the characterization of the measures at issue as safeguards or oth er 
prohibited measures under Article  11.1(b) of the Agreement on Safeguards based on objective 
features of the measures at issue.427 The United  States  refers to Article  XXI of the GATT  1994 and 
contends that the Agreement on Safeguards is inapplicable to th e measures at issue by virtue of 
Article  11.1(c) as the measures were "sought, taken or maintained … pursuant to provisions of 
GATT  1994 other than Article  XIX".428  
7.86.   The Panel recalls that it is required under Article  11 of the DSU to make an objective 
assessment of the matter before it, including an objective assessment of the facts of the case and 
the applicability of and conformity with the relevant covered agreements.429 Moreover, the Panel is 
required to address the parties' disagreement regarding the ap plicability of the relevant covered 
agreements in accordance with Article  3.2 of the DSU and the customary rules of interpretation of 
public international law.430 The rule of interpretation set out in Article  31(1) of the Vienna  Convention  
forms part of suc h "customary rules of interpretation of public international law" and provides that 
"[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the 
terms in their context and in the light of its object and purpose."431 Regarding the interpretation of 
 
427 Switzerland's first written submission, paras.  127-177. Switzerland specifically argues that the 
measures at issue objectively present the constituent features of safeguard measures under Article  XIX of the 
GATT  1994. (See ibid. (referring to App ellate  Body Report, Indonesia – Iron or Steel Products , para.  5.60)).  
428 United  States ' response to Panel question Nos. 77 and 78; see also second written submission, 
section  II.A. 
429 The Panel further notes the principle affirmed in past disputes that panel s under the DSU have 
independence in the structure of their analysis and the development of legal reasoning, as well as latitude in 
the evidence on the record relied upon to reach findings that will assist the DSB. (See e.g. Appellate  Body 
Reports, EC – Hormones , para. 156; EC – Fasteners (China) (Article  21.5 – China) , para.  5.61;  Panel  Report s, 
India – Solar Cells , para.  7.41; EC – Export Subsidies on Sugar  (Australia) , para.  7.121 and fn  437). 
430 See section 7.1 above.  
431 See e.g. Appellate  Body Reports, US – Gasoline , p. 17; India – Patents (US) , para.  46; Argentina – 
Textiles and Apparel , para.  42; US – Carbon Steel , para.  61. The Panel notes the parties' agreement that the 
Panel should be guided by the ordinary meaning of the terms of the Agreement on Safeguards in their context 
 WT/DS556/R  
 
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  treaties authenticated in two or more languages, the customary rules in Article  33 of the 
Vienna  Convention  provide that "[t]he terms of the treaty are presumed to have the same meaning 
in each authentic text" and that in case  of a difference between authentic texts "which the application 
of articles 31 and 32 [of the Vienna  Convention ] does not remove, the meaning which best reconciles 
the texts, having regard to the object and purpose of the treaty, shall be adopted".432 
7.87.   The P anel notes that the Agreement on Safeguards "establishes rules for the application of 
safeguard measures which shall be understood to mean those measures provided for in Article XIX 
of GATT 1994".433 In this regard, Article 11.1(a) of the Agreement on Safeg uards provides that "[a] 
Member shall not take or seek any emergency action on imports of particular products as set forth 
in Article XIX of GATT 1994 unless such action conforms with the provisions of that Article applied 
in accordance with this Agreement ." Article  11.1(a) is one of three paragraphs under Article  11.1 of 
the Agreement on Safeguards as part of provisions entitled "Prohibition and Elimination of Certain 
Measures" under which Article  11.1(b) prohibits "voluntary export restraints, orderly mar keting 
arrangements or any other similar measures on the export or the import side". Article  11.1(c) refers 
to measures "sought, taken or maintained … pursuant to provisions of GATT  1994 other than 
Article  XIX", to which the Agreement on Safeguards "does not apply".  
7.88.   According to its express terms, Article  11.1(c) removes certain measures from the scope of 
application of the Agreement on Safeguards, including the rules specified in Article  11.1(a) and the 
prohibition under Article  11.1(b).434 This is supported by the unambiguous reference in 
Article  11.1(c) to the inapplicability of the Agreement on Safeguards as a whole in respect of 
measures "sought, taken or maintained … pursuant to provisions of GATT 1994 other than 
Article  XIX". The Panel notes that the paragraphs of Article  11.1 of the Agreement on Safeguards do 
not contain any terms explicitly indicating the limitation or qualification of any paragraph in relation 
to another.435 In this respect, Article  11.1 does not subordinate any of the paragraphs in relation to 
one another concerning the applicability of the Agreement on Safeguards. The Panel thus considers 
that finding the measures at issue to fall within the scope of Article  11.1(c) would fully addre ss the 
matter within the Panel's terms of reference under the Agreement on Safeguards as there would be 
no basis to assess claims of inconsistency under an agreement that "does not apply" to the measures 
at issue. The Panel is mindful in this connection of  its mandate to make only such findings under the 
covered agreements as will assist the DSB in this dispute, taking into account the specific measures 
at issue, the evidence and arguments submitted by the parties, and the Panel's overall conclusions 
reache d with respect to the matter referred to the DSB.436  
7.89.   In the circumstances of this dispute, the Panel therefore considers that it is appropriate to 
determine whether the measures at issue can be characterized as having been "sought, taken or 
maintained … pu rsuant to provisions of GATT 1994 other than Article XIX" within the meaning of 
Article  11.1(c) of the Agreement on Safeguards. The Panel will focus its assessment on the terms of 
 
and in light of the object and purpose of the agreement. (See Switzerland' s response to Panel question No.  20 
and United  States ' response to Panel question No.  20. See also Switzerland's second written submission, 
paras.  80-88; United  States ' second written submission, section IV.B).  
432 See e.g. Appellate  Body Reports , US – Softw ood Lumber IV , para. 59; EC – Bed Linen (Article  21.5 – 
India) , fn 153; US – Upland Cotton , para. 424; and US – Stainless Steel (Mexico) , fn 200.  
433 Article  1 of the Agreement on Safeguards.  
434 The French and Spanish versions of Article  11.1(c) use the terms " ne s'applique pas " and " no es 
aplicable " respectively to denote that the Agreement on Safeguards is inapplicable to " mesures " or " medidas " 
described in that provision. The Panel understands  that the parties agree that Article  11.1(c) excludes certain 
measures from the scope of application of the Agreement on Safeguards, notwithstanding their disagreement 
as to when such measures may be considered to have been "sought, taken or maintained … p ursuant to 
provisions of the GATT  1994 other than Article  XIX" within the meaning of Article  11.1(c). (See Switzerland's 
response to Panel question Nos. 20 and 22; United  States ' response to Panel question Nos. 20 and 22).  
435 The paragraphs of Article  11.1 can be contrasted in this respect with other provisions of the covered 
agreements that explicitly limit or qualify the scope of that provision by reference to another provision in the 
covered agreements, including within the same article. See e.g.  Article  5.6 of the Agreement on Safeguards 
("Notwithstanding the provisions of paragraph 5 …"); Article  3.3 of the SPS  Agreement  ("Notwithstanding the 
above …"); Article  X:6 of the WTO  Agreement  ("Notwithstanding the other provisions of this Article  …"); 
Article  3.1 of the Agreement on Agriculture ("Subject to the provisions of Article  6 …"); Article  XII:1 of the 
GATT  1994 ("… subject to the provisions of the following paragraphs of this Article"); Article  7.1 of the 
Agreement on Safeguards ("… provided that the pe rtinent provisions of Articles 8 and 12 are observed").  
436 In the particular circumstances of this dispute, if the Agreement on Safeguards were determined to 
be inapplicable to the measures at issue, the Panel does not consider that there would be anything additional 
under Article  XIX of the GATT  1994 within the Panel's terms of reference on which it could make findings to 
assist the DSB in this matter.  WT/DS556/R  
 
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  Article  11.1(c) of the Agreement on Safeguards, and particularly, the terms "pursuant to" and "other 
than", in their context and in light of the object and purpose of the Agreement on Safeguards.  
7.90.   Regarding the terms "pursuant to" in Article  11.1(c), Switzerland contends that the terms 
"pursuant to" refer to measures falling "withi n the scope" of the relevant provisions of the GATT  1994 
and argues that the determination of this question requires an objective assessment of the relevant 
features of the measures at issue.437 For the United  States , the expression "pursuant to" is differe nt 
from the terms "in compliance with" or "consistent with", and serves the function of "direct[ing] the 
Panel to the other GATT  1994 provision pursuant to which the measure in question was attempted 
or tried".438  
7.91.   The Panel will assess the meaning of "pursuant to" as it is used in Article  11.1(c) having 
regard for relevant context and the use of terms in the three authentic language versions of the 
Agreement on Safeguards, in accordance with the customary rules of interpretation of public 
international  law. The expression "pursuant to" in Article  11.1(c) denotes the existence of a 
relationship between the measures of a Member and provisions of the GATT  1994 other than 
Article  XIX.439 The term "pursuant" when used with the preposition "to" may mean "under ", "in 
accordance with", "in consequence of", or "as authori zed by".440 Taken in isolation, the terms 
"pursuant to" could potentially accommodate a range of meanings. Within this range of meanings, 
the terms "pursuant to" in the context of Article  11.1(c) c ould be understood as consistency with 
the requirements of a provision of the GATT  1994 other than Article  XIX, or a different relationship 
that does not require such consistency. For example, a measure could be characterized under 
Article  11.1(c) as being  "pursuant to" a provision in the sense of being sought, taken, or maintained 
under the purview of that provision without necessarily meeting the requirements of the specific 
terms of such other provision.  
7.92.   The Panel finds instructive the contrast between " pursuant to" in Article  11.1(c) and terms 
used elsewhere in the Agreement on Safeguards that appear to convey a relationship of consistency 
with the requirements of another provision of the covered agreements. This is particularly evident 
in the other para graphs of Article  11.1 of the Agreement on Safeguards that provide immediate 
context to the terms of Article  11.1(c) and use the expressions "in accordance with" and "in 
conformity with" other provisions. The obligation for safeguard measures to meet the r equirements 
of Article  XIX of the GATT  1994 and the Agreement on Safeguards is expressed in Article  11.1(a) by 
providing that Members' safeguard measures must " conform [] with the provisions of that 
Article  applied in accordance with  this Agreement".441 Similarly, the elimination of measures 
prohibited under Article  11.1(b) is expressed in the obligation that such measures "shall be brought 
into conformity with  this Agreement or phased out in accordance with " the mandatory timetables 
and requirements set out in Article  11.2.442 These explicit references in Article  11.1 to "conformity" 
and actions "in accordance with" other provisions are comparable to other uses of these terms in 
the Agreement on Safeguards that similarly appear to denot e consistency with the referenced 
requirements.443  
 
437 Switzerland's response to Panel question No.  20.b (also arguing that if Article  11.1(c) is interpreted 
as referring to measures that are in conformity with a gi ven GATT provision, this would amount to conflating 
the issue of applicability of legal disciplines with the issue of WTO -consistency); see also second written 
submission, para.  87. 
438 United  States ' response to Panel question Nos. 20 and 9 8. 
439 Similarly, in the French and Spanish versions of Article  11.1(c), the phrases " en vertu de " and " de 
conformidad con " respectively describe the relationship between the measures (" aux mesures " and " las 
medidas ") and provisions of the GATT  1994 other than A rticle XIX (" dispositions du GATT de 1994 autres que 
l'article XIX " and " disposiciones del GATT de 1994, aparte del artículo XIX ").  
440 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 2411;  Garner's 
Dictionary of Legal Usa ge, 3rd Edition (Oxford University Press. 2011), p. 737.  
441 Emphasis added.  
442 Emphasis added. See also footnote 3 to Article  11.1(b) of the Agreement on Safeguards ("[a]n 
import quota applied as a safeguard measure in conformity with  the relevant provisions  of GATT  1994 and this 
Agreement may, by mutual agreement, be administered by the exporting Member") (emphasis added). The 
indication of consistency or conformity with certain requirements is further supported by the mandatory terms 
"shall" and "must" in A rticle 11.2 establishing the obligations with which a measure must be in conformity or 
accordance.  
443 See e.g. Article  4.1(b) ("'threat of serious injury' shall be understood to mean serious injury that is 
clearly imminent, in accordance with  the provisions  of paragraph 2") (emphasis added); Article  4.2(c) ("The 
 WT/DS556/R  
 
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  7.93.   The contrast in meaning between "pursuant to" in Article  11.1(c) and terms expressing a 
standard of consistency finds support in the French version of the provision referring to " mesures … 
en vertu de disp ositions de GATT de 1994 autre que l'article XIX ". As in the English text, the 
Agreement on Safeguards uses the French terms " conformes " and " conformément " in Articles 
11.1(a) and 11.1(b) for "conforms" and "in accordance with", which similarly appear to i ndicate 
consistency or conformity with the legal provisions specified in those paragraphs.444 In contrast, the 
French version of Article  11.1(c) for egoes  the term " conformément " in favour of " en vertu de ", whose 
dictionary meanings include " en conséquence d e" (as a consequence of), " par l'effet de " (by the 
effect of), " par le pouvoir de " (by the power of), and " au nom de " (in the name of or on behalf of).445 
The Panel further notes that the use of the French term " conformément " in various provisions of the 
Agreement on Safeguards corresponds to English references to "conformity" and actions being "in 
accordance with" other provisions.446 The terms of Article  11.1(c) in both English and French thus 
reflect a departure from terms used in other provisions of the A greement on Safeguards that appear 
to convey a requirement of conformity or consistency.  
7.94.   The Panel notes the terminology used in the Spanish version of the Agreement on Safeguards, 
which in Article  11.1(c) provides that the Agreement does not apply to meas ures sought, taken or 
maintained " de conformidad con otras disposiciones del GATT de 1994 ". Dictionary meanings of the 
terms " de conformidad con " include " con arreglo a " or "a tenor de " (according to), " en proporción o 
correspondencia a " (in proportion or correspondence to), or " de la misma suerte o manera que " (in 
the same way or manner).447 The Spanish terms " de conformidad con " are also used in the provisions 
referred to above in which the English and French terms use variants of "conformity" or " conformi té", 
as well as "in accordance with" in English, and appear to indicate a requirement of conformity or 
consistency with the other referenced legal provisions. This is notably the case in Articles 11.1(a) 
and (b) where the Spanish text uses similar terms (" conformes " and " de conformidad con ") as those 
used in English and French. The Spanish version of Article  11.1(c) refers to " conformidad con otras 
disposiciones del GATT de 1994 ", unlike the English and French terms in Article  11.1(c) that reflect 
a clear departure from references to "conformity" or being "in accordance with" other legal 
provisions.448 
7.95.   On balance, these considerations indicate that the terms "pursuant to" in Article  11.1(c) of 
the Agreement on Safeguards do not require consistency with  provisions of the GATT  1994 other 
than Article  XIX for a measure to fall under that paragraph. The text of Article  11.1(c) does not make 
any explicit reference to a requirement of conformity with the provisions of GATT  1994 in English or 
French in contras t to other provisions of the Agreement on Safeguards, including those that provide 
immediate context for Article  11.1(c). The use of the French terms " en vertu de " in Article  11.1(c) 
is especially compelling in this regard in signalling a contrast to the t erm " conformément " and 
 
competent authorities shall publish promptly, in accordance with  the provisions of Article  3 …") (emphasis 
added); Article  7.2 ("[t]he period mentioned in paragraph 1  may be extended provided that the competent 
authorities of the importing Member have determined, in conformity with  the procedures set out in Articles 2, 
3, 4 and 5 …") (emphasis added). In prior disputes under the Agreement on Safeguards, the Appellate  Body 
has referred to other provisions in the Agreement on Safeguards establishing requirements with which 
safeguard measures must be in conformity, such as the conditions in Article  2.1 and the requirements of 
Articles 3 and 4. (See Appellate  Body Reports, US – Line Pipe , para.  84; US – Steel Safeguards , para.  264).  
444 See also footnote 3 to Article  11.1(b) of the Agreement on Safeguards (" Un contingent d'importation 
appliqué en tant que mesure de sauvegarde conformément  aux dispositions pertinentes du GATT de  1994 et du 
présent accord pourra, par accord mutuel, être administré par le Membre exportateur "). 
445 Le Petit Robert Dictionnaire de la Langue Fran çaise (2000), p. 2663.  
446 See e.g. Article  4.1(b) ("conformément aux dispositions du paragraphe 2"); Article  4.2(c) 
("conformément aux dispositions de l'article 3"); and Article  7.2 ("conformément aux procédures énoncées aux 
articles 2, 3, 4 et 5").  
447 Diccionario de la Lengua Española , 22nd Edition  (Real Academia Española, 2001), pp. 420 -421. 
448 The Spanish terms " de conformidad con " are also used in other provisions of the Agreement on 
Safeguards that appear to indicate a standard of consistency across all language versions. (See e.g. 
Article  4.1(b) (" de conformidad con las disposiciones del pár rafo 2 "); Article  4.2(c) (" de conformidad con las 
disposiciones del artículo 3 "); and Article  7.2 (" de conformidad con los procedimientos establecidos en los 
artículos 2, 3, 4 y 5 ")). The Panel further notes that the terms " de conformidad con " are translat ed with some 
variation in English, including provisions in which the corresponding term for " de conformidad con " in the 
English version is "under" within the specific context of the provision in question. (See Article  7.1 ("The period 
shall not exceed four  years, unless it is extended under paragraph 2.") (emphasis added); Article  7.4 ("A 
measure extended under paragraph 2 …") (emphasis added)).  WT/DS556/R  
 
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  indicates a different legal relationship than consistency or conformity with the requirements of a 
provision of the GATT  1994 other than Article  XIX.  
7.96.   The comparison of terms in the different language versions is instructive but not in itself 
dispositive regarding the interpretation of Article  11.1(c) of the Agreement on Safeguards in 
accordance with Article  3.2 of the DSU.449 The terms of Article  11.1(c) must be interpreted in 
accordance with their ordinary meaning in their context an d in light of the object and purpose of the 
Agreement on Safeguards. Moreover, to the extent that the Spanish text "discloses a difference of 
meaning" when compared to the text of Article  11.1(c) in English and French, the Panel finds 
guidance in the rule of interpretation in Article  33(4) of the Vienna  Convention  that, if such difference 
cannot be removed by application of Articles 31 and 32 of the Vienna  Convention , the meaning which 
best reconciles the texts, having regard to the object and purpose of th e treaty, shall be adopted.450  
7.97.   The Panel considers that interpreting the terms "pursuant to" in Article  11.1(c) to refer to 
measures sought, taken, or maintained under the purview of another provision of the GATT  1994, 
without entailing consistency with th e requirements of such other provision, accords with the specific 
context in which those terms appear. The terms "pursuant to" in Article  11.1(c) form part of a 
provision governing the applicability of the Agreement on Safeguards rather than the consistenc y of 
measures with the rules and requirements of that agreement.451 Accordingly, the nature of the 
relevant inquiry under Article  11.1(c) does not relate to another provision of the GATT  1994 as a 
legal exception or justification for inconsistencies with th e Agreement on Safeguards.452 Rather, the 
relevant inquiry under Article  11.1(c) corresponds to the threshold issue of applicability and leaves 
as a separate inquiry whether a measure is consistent with the requirements of such other provision 
"pursuant to"  which the measure was sought, taken, or maintained.  
7.98.   These considerations are also relevant for the interpretation of the terms "other than" in 
Article  11.1(c) of the Agreement on Safeguards. The parties dispute the meaning of these terms 
particularly in r elation to their arguments on the characterization of measures as safeguards within 
the meaning of Article  XIX of the GATT  1994 and Article  1 of the Agreement on Safeguards. In this 
connection, Switzerland contends that a measure may possess certain object ive features of a 
safeguard measure and, if so, such measure would not be pursuant to a provision "other than" 
Article  XIX in the sense of Article  11.1(c).453 In the Panel's view, Switzerland's interpretation of the 
 
449 The Panel notes that the terms "pursuant to" appear in various provisions of the Agreement on 
Safeguards for wh ich the corresponding French and Spanish terms reflect the potential range of meanings of 
these terms according to their specific context. For example, Article  2.1 provides that a safeguard measure 
may be applied "only if that Member has determined, pursua nt to the provisions set out below," various 
conditions for the application of safeguard measures. The context of mandatory conditionality in which 
"pursuant to" appears in Article  2.1 ("may apply a safeguard measure … only if") is reflected in the French and 
Spanish, respectively, as " conformément " and " con arreglo a ". As another example, Article  10 of the 
Agreement on Safeguards refers to "safeguard measures taken pursuant to Article  XIX of GATT 1947" where 
the corresponding French and Spanish terms (" au titre de " and " al amparo del " respectively) do not appear to 
indicate consistency or conformity.  
450 As noted above, this rule of interpretation forms part of the "customary rules of interpretation of 
public international law" referred to in Article  3.2 of t he DSU. See para.  7.86 above.  
451 See Appellate  Body Report, Indonesia – Iron or Steel Products , para.  5.57 (distinguishing "factors 
pertaining to the legal characterization of a measure for purposes of determining the applicability  of the WTO 
safeguard disciplines" from "the substantive conditions and procedural requirements that determine the WTO 
consiste ncy of a safeguard measure") (emphasis original).  
452 The Panel notes in this regard that Article  11.1(c) of the Agreement on Safeguards serves a similar 
role to certain provisions in the Anti -Dumping Agreement and the Agreement on Subsidies and Countervaili ng 
Measures  (SCM  Agreement ), which allow Members to take measures "under" other provisions of the 
GATT  1994 but do not indicate a requirement of conformity with such other provisions. Moreover, the French 
and Spanish versions of these provisions do not use  terms such as " conformément " and " conformidad " but 
rather " au titre " and " al amparo " respectively. (See Article  18.1 of the Anti -Dumping Agreement, footnote 24 
and Article  32.1 of the SCM  Agreement , footnote 56). At the same time, the Panel notes differen ces in the 
terminology and structure of Article  11.1(c) of the Agreement on Safeguards compared to these footnotes, 
which provide that the particular terms of Article  18.1 of the Anti -Dumping Agreement and Article  32.1 of the 
SCM Agreement  are "not intende d to preclude actions under other relevant provisions of GATT  1994". By 
contrast, Article  11.1(c) is in the main text of the provision and expressly states conditions under which the 
agreement "does not apply". (See Appellate  Body Report, US – Offset Act ( Byrd Amendment) , para.  262 
(referring to Appellate  Body Report, US – 1916 Act , para.  123) (describing the "accessory footnotes" as 
"clarifications of the main provisions" on the "specific action" Members are permitted to take against dumping 
or subsidies)) . 
453 Switzerland's second written submission, para.  88. WT/DS556/R  
 
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  terms "provisions … other than" amounts t o meaning provisions that are exclusively other than 
Article  XIX of the GATT  1994. The Panel understands this interpretation to mean that  the Agreement 
on Safeguards could still be applicable to a measure notwithstanding its characterization as being 
pursuant to another provision of the GATT  1994.  
7.99.   With respect to the ordinary meaning of the terms "other than", dictionary definitions include 
"besides", "except" or "apart from".454 The Panel notes that all three language version s of 
Article  11.1(c) contain terms that are not qualified by any specification or limitation with respect to 
being "other than" Article  XIX of the GATT  1994. The ordinary meaning of these terms in their 
context encompasses measures that are pursuant to ano ther provision of the GATT  1994, and the 
Panel does not find in the text of Article  11.1(c) the imposition of an additional requirement or 
limitation of being exclusively pursuant to such other provision. This interpretation is consonant with 
the context o f the paragraphs of Article  11.1 that together establish the conditions for the 
applicability of the Agreement on Safeguards. The question of applicability is addressed under 
Article  11.1(c) by terms specifying a relationship between a measure and a provis ion of the 
GATT  1994 "other than" Article  XIX, namely that a measure is "pursuant to" such other relevant 
provision, and providing that the Agreement on Safeguards does not apply to such measure.455  
7.100.   The Panel finds support for these conclusions in the obje ct and purpose of the Agreement 
on Safeguards as expressed in its preamble recognizing "the need to clarify and reinforce the 
disciplines of GATT 1994, and specifically those of its Article XIX (Emergency Action on Imports of 
Particular Products), to re -establish multilateral control over safeguards and eliminate measures that 
escape such control". In this regard, the preamble further expresses recognition of the need for "a 
comprehensive agreement, applicable to all Members and based on the basic principle s of 
GATT  1994". An essential corollary of the "multilateral control over safeguards" and elimination of 
"measures that escape such control" under the Agreement on Safeguards is the explicit preservation 
under Article  11.1(c) of the right for Members to ad opt measures under legal provisions of the 
GATT  1994 that are part of the "basic principles" affirmed and reinforced by the Agreement on 
Safeguards. The Panel considers significant in this regard the placement of Article  11.1(c) in the list 
of paragraphs u nder Article  11.1 as part of provisions entitled "Prohibition and Elimination of Certain 
Measures". The imposition of obligations to "clarify and reinforce the disciplines of GATT  1994", as 
notably expressed in Articles 11.1(a) and (b), is explicitly condi tioned by the terms of Article  11.1(c) 
on the applicability of the agreement as a whole. The requirement under Article  11.1(c) for a 
measure to be "pursuant to" a provision "other than" Article  XIX of the GATT  1994 thus serves the 
maintenance of a balance of rights and obligations that are in turn based on the terms of such other 
provision.  
7.101.   The relevant provision of the GATT  1994 other than Article  XIX in this dispute is Article  XXI 
entitled "Security Exceptions", which provides inter alia  that "[n]othing in this Agreement shall be 
construed … to prevent any [Member] from taking any action which it considers necessary for the 
protection of its essential security interests".456 In accordance with the requirements of Article  11 of 
the DSU, the Panel will assess the applicability of the Agreement on Safeguards to the measures at 
issue in light of the foregoing interpretive considerations on Article  11.1(c) as well as the evidence 
and arguments submitted by the parties in this dispute. Taking into account the case -specific nature 
of the relevant inquiry on applicability rather than conformity, the Panel will identify relevant aspects 
of the design and application of the measures wit h specific reference to their legal characterization 
under Article  11.1(c) of the Agreement on Safeguards. The Panel will give due consideration to all 
relevant evidence in this regard including the domestic law and procedures under which the 
 
454 The terms of Article  11.1(c) in French and Spanish (" autres que " and " aparte del " respectively) 
similarly mean different from or with the omission of. See Le Petit Robert Dictionnaire de la Langue Fr ancaise 
(2000), pp. 185 -186 and Diccionario de la Lengua Española , 22nd Edition  (Real Academia Española, 2001), p. 
120. 
455 In the context of the objective assessment required under Article  11 of the DSU, the relevant 
provision under Article  11.1(c) of the Agreement on Safeguards (i.e. the provision of the GATT  1994 "other 
than" Article  XIX) depends on the specific circumstances of the dispute, including the measures and claims at 
issue, legal provisions raised by the parties, as well as the relevant evi dence and arguments submitted by the 
parties.  
456 See section 7.9 below.  WT/DS556/R  
 
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  measures were  adopted as well as any relevant notifications or statements to the official bodies of 
the WTO.457  
7.102.   The Panel takes note of the United  States ' arguments in relation to the meaning of the term 
"sought" in Article  11.1(c) of the Agreement on Safeguards, which  are related to the United  States ' 
contention that, based on Article  XIX:2 of the GATT  1994, formal notification of safeguard measures 
to the WTO is a "condition precedent" to the applicability of safeguard disciplines.458 As detailed 
below, the Panel consi ders the manner in which the measures were raised before the WTO, including 
notifications to relevant WTO bodies or committees, as part of the assessment of the evidence and 
arguments submitted on all relevant aspects of the measures at issue in this dispu te. The Panel does 
not consider it necessary for the purposes of this dispute to address in further detail the 
United  States ' arguments on WTO notification being a "condition precedent" for the applicability of 
safeguard disciplines.  
7.103.   Finally, the Panel not es that the parties have referred to certain aspects of the negotiating 
history of the Agreement on Safeguards in support of their respective positions. Under Article  32 of 
the Vienna  Convention , recourse to supplementary means of interpretation, including the 
preparatory work of a treaty, may be had either to confirm the meaning resulting from the 
application of Article  31, or to determine the meaning when the interpretation according to Article  31 
leaves the meaning ambiguous or o bscure or leads to a result which is manifestly absurd or 
unreasonable. The Panel does not consider that the application of Article  31 of the Vienna  Convention  
to the interpretation of Article  11.1(c) of the Agreement on Safeguards leaves the meaning of th e 
provision ambiguous or obscure, nor does the Panel find that it leads to a result which is manifestly 
absurd or unreasonable. Nevertheless, the Panel has examined the negotiating history of the 
provision in order to confirm the meaning resulting from the  application of Article  31 of the 
Vienna  Convention . As detailed in Appendix  A to this Report , the Panel's review of the negotiating 
history of Article  11.1(c) of the Agreement on Safeguards confirms the conclusions reached by the 
Panel regarding the inter pretation of that provision.  
7.104.   Based on the foregoing, the Panel will assess the applicability of the Agreement on 
Safeguards in this dispute according to whether the measures at issue were sought, taken, or 
maintained pursuant to Article  XXI of the GATT  1994 within the meaning of Article  11.1(c) of the 
Agreement on Safeguards.   
7.8.3   Assessment of the measures at issue  
7.105.   The United  States  adopted the measures at issue under Section  232 and the related 
procedures set out in Title 15, Part 705 of the Code of Federal R egulations.459 According to the terms 
of the domestic legislation, Section  232 concerns actions taken by the United  States  for 
 
457 The Panel notes that the Appellate  Body identified various relevant factor s for the determination of 
whether measures constitute safeguard measures under Article  XIX of the GATT  1994. In this dispute, the 
relevant inquiry is directed by the terms of Article  11.1(c) to a provision other than Article  XIX of the 
GATT  1994. Neverthe less, there is a broad parallel in both contexts of distinguishing questions of legal 
applicability from those concerning legal consistency and, for the former, making an objective examination of 
the specific measures at issue according to the relevant pro vision of the GATT  1994 upon which to determine 
the applicability of the Agreement on Safeguards. (See Appellate  Body Report, Indonesia – Iron or Steel 
Products , para.  5.60).  
458 United  States ' second written submission, section s IV.B.1  ("Article  11.1(c) Supports That Invocation 
is a Condition Precedent for … a Member's exercise of its right to take action under Article  XIX and Application 
of Safeguards Rules") and IV.B.2 ("Other Provisions of the Agreement on Safeguards Also Support that Notice 
is a Condition Precedent for Action Under Article  XIX"). For the various terms used by the United  States  to 
describe the "condition precedent" for the applicability of safeguard disciplines, see  United  States ' second 
written submission, para.  145 ("notice is  a condition precedent to taking action under Article  XIX");  
paras.  147-148 ("[t]he text of Article  XIX:2 explicitly sets out a requirement to invoke the provision through 
notice as a condition precedent to action under Article  XIX:1… [w]ithout such notice , a Member is not seeking 
legal authority pursuant to Article  XIX");  para. 172 ("notice under Article  XIX:2 is a fundamental, condition 
precedent to a Member's exercise of its right to take action under Article  XIX and the application of safeguards 
discipl ines");  and para. 203 ("invocation through written notice is a condition precedent to a Member's exercise 
of its right to take action under Article  XIX and the application of safeguards rules to that action") . 
459 See section 2.1 above.  WT/DS556/R  
 
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  "[s]afeguarding national security".460 Moreover, Section  232 authorizes the US Secretary of 
Commerce to investigate the effects of imports of an article on US national security461, in consultation 
with the Secretary of Defense and other appropriate officers of the United  States .462 If the Secretary 
of Commerce determines that an article is being imported into the United  States  in such q uantities 
or under such circumstances as to threaten to impair the national security, the US President may 
adjust the imports of that article into the United  States .463 In this respect, Section  232 directs the 
US Secretary of Commerce and the US President t o give consideration among other factors to the 
domestic production needed for projected national defen ce and the impact of foreign competition on 
the economic welfare of domestic industries essential to US national security .464  
7.106.   The US Secretary of Commerce commenced investigations under Section  232 to determine 
the effects of imports of certain steel and aluminium products on US national security in April 
2017.465 The findings of these investigations were published in January 2018 in the Steel and 
Aluminium Reports, where the US Secretary of Commerce determined that present quantities of 
steel and aluminium imports were "weakening [the United States'] internal economy" and therefore 
"threaten to impair" its national security.466 According to these repo rts, rising levels of imports of 
foreign steel and aluminium place at substantial risk the capacity of domestic industries to produce 
steel and aluminium for critical infrastructure and national defen ce467, especially in times of national 
emergencies.468 The reports recommend corrective actions against imports in the form of tariffs and 
quotas with a view to improve domestic capacity utili zation and stabili ze US production at the level 
required for its security needs.469 
7.107.   The measures at issue in this dispute o n imports of steel and aluminium into the 
United  States  are based on the abovementioned findings and recommendations by the US Secretary 
of Commerce .470 The Presidential Proclamations concurring with these findings and 
recommendations describe the measures as "necessary" and "appropriate" to address the 
threatened impairment of national security.471 Presidential Proclamations 9704 and 9705 providing 
for additional duties on steel and aluminium imports state that "[t]his relief will … revive idled 
facilities, open closed [smelters and] mills, preserve necessary skills by hiring new [steel and 
aluminium workers], and maintain or increase production", which in turn will "reduce [the 
United  States '] need to rely on foreign producers for [steel and aluminium] and e nsure that domestic 
producers can continue to supply all the [steel and aluminium] necessary for critical industries and 
 
460 Section 232, ( Exhibit CHE -1 and USA -1), § 1862. Title 15, Part 705 of the Code of Federal 
Regulations sets out the procedures by which the US Department of Commerce c ommences and conducts an 
investigation "to determine the effect on the national security of the imports of any article". (See Section 232 
regulations, ( Exhibit CHE -21 and USA -2), § 705.2 ). 
461 Section 232, ( Exhibit CHE -1 and USA -1), § 1862(b)(1)(A).  
462 Section 232, ( Exhibit CHE -1 and USA -1), §§ 1862(b)(2)(A)(i) and b(2)(A)(ii).  
463 Section 232, ( Exhibit CHE -1 and USA -1), § 1862(c)(1)(A).   
464 Section 232, ( Exhibit CHE -1 and USA -1), § 1862(d); Section 232 regulations, ( Exhibit CHE -21 and 
USA-2), § 705.4.  
465 Steel Report,  (Exhibit CHE -2 and USA -7), p. 18; Aluminium Report, (Exhibit CHE-5 and USA -8), p. 
18. See also sections  2.1.2 and 2.1.3 above.  
466 Steel Report,  (Exhibit CHE -2 and USA -7), p. 55; Aluminium Report, (Exhibit CHE-5 and USA -8), p. 
104. 
467 Steel Report,  (Exhibit CHE -2 and USA -7), p. 55; Aluminium Report, (Exhibit CHE-5 and USA -8), p. 
104.  
468 Steel Report,  (Exhibit CHE -2 and USA -7), pp. 55-56; Aluminium Report, (Exhibit CHE-5 and USA -8), 
p. 105 (also noting that rising imports have placed at risk the capability of domestic industries to "q uickly shift 
production capacity used for commercial products to defense and critical infrastructure production that 
provides the United  States  a surge capability that is vital to national security, especially in an unexpected or 
extended conflict or natio nal emergency").  
469 Aluminium Report, ( Exhibit CHE -5 and USA -8), pp. 104-105. See also Steel Report,  (Exhibit CHE -2 
and USA -7), p. 58 (recommending quotas or tariffs on steel imported into the United  States  to increase 
domestic capacity utilization and to k eep the domestic steel industry financially viable and able to meet US 
national security needs).  
470 See e.g. Presidential Proclamation 9704 , (Exhibit CHE -13 and USA -10), p. 11619 and Presidential 
Proclamation 9705 , (Exhibit CHE -8 and USA -9), p. 11626 noting  that the US President concurs with the 
Secretary's findings in the Steel and Aluminium Reports and has considered the recommendations in these 
reports.  
471 Presidential Proclamation 9704 , (Exhibit CHE -13 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHE -8 and USA -9), p. 11626.  WT/DS556/R  
 
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  national defense".472 These proclamations further describe the additional duties as "an important 
first step in ensuring the economic vi ability" of the United  States ' domestic steel and aluminium 
industry, without which "the industry will continue to decline, leaving the United  States  at risk of 
becoming reliant on foreign producers … to meet [its] national security needs".473 These Preside ntial 
Proclamations thus describe the national security objectives that the United  States  seeks to achieve 
by adopting measures against a "high level of imports".474  
7.108.   The national security considerations expressed in the domestic legal instruments and acts 
underlying the measures at issue are also observable in the application of the additional duties on 
steel and aluminium imports, including their country and product scope. In this regard, Presidential 
Proclamations 9704 and 9705 recogni ze that the United  States may remove or modify the restriction 
on steel and aluminium imports from a country if it determines that imports from the country no 
longer threaten to impair its national security.475 The United  States  exempted various countries from 
the additional duties on steel and aluminium imports following such determinations476, based on its 
"important security relationships" and "security, defense, and intelligence partnership[s]" with these 
countries as well as their "shared concern about global excess capacity, a circumstance that is 
contributing to the threatened impairment of [US] national security".477 The Panel also notes that 
the additional duties are applied to products that are determined by the relevant d omestic authorities 
of the United  States  to be important for its military systems and critical infrastructure.478  
7.109.   These considerations indicate that the measures at issue were designed and expected to 
operate in relation to the United  States ' determination  of a threat to its national security under the 
relevant domestic laws. In this regard, the Panel notes several other relevant aspects of the 
measures at issue and their application supporting this conclusion. For example, Presidential 
Proclamations 9740, 9758 and 9759 introduce quotas restricting steel and aluminium imports from 
certain countries to provide "effective, long -term alternative means" to address their contribution to 
the threat to national security as determined by the United  States .479 These q uotas are applied only 
in respect of countries with which the United  States  has identified "important security 
relationships".480 Presidential Proclamations 9704, 9705, 9776, and 9777 set out a product exclusion 
process to provide relief from the additional  duties and import quotas based on "specific national 
 
472 Presidential Proclamation 9704 , (Exhibit CHE -13 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHE -8 and USA -9), p. 11626.  
473 Presidential Proclamation 9704 , (Exhibit CHE -13 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHE -8 and USA -9), pp. 11626 -11627.  
474 Presidential Proclamation 9704 , (Exhibit CHE -13 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHE -8 and USA -9), p. 11626 . 
475 Presidential Proclamation 9704 , (Exhibit CHE -13 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHE -8 and USA -9), p. 11626 (further noting that the United  States  may make corresponding 
adjustments to the additional duties applicable to other countries as its national security interests require).  
476 See sections 2.2.1.2  and 2.2.2.2  above for a list of the exempted countries.  
477 Presidential Proclamation 9704 , (Exhibit CHE -13 and USA -10), p. 11620; Presidential Proclamation 
9705, (Exhibit CHE -8 and USA -9), p. 11626; Presidential Proclamation 9710 , (Exhibit CHE -14 an d USA -12), pp. 
13355 -13356; Presidential Proclamation 9711 , (Exhibit CHE -9 and USA -11), pp. 1336 1-13362.  
478 Steel Report,  (Exhibit CHE -2 and USA -7), Appendix  H and Appendix  I; Aluminium Report, (Exhibit 
CHE-5 and USA -8), pp. 24 -39. See also Presidential Proclamation 9704 , (Exhibit CHE -13 and USA -10), p. 
11623 (providing for additional duties on imports of unwrought aluminium; aluminium bars, rods and profiles; 
aluminium wires; aluminium plates, sheets, strips and foil; aluminium tubes, pipes and tube or pipe fittings; 
and aluminium castings and forgings) and Presidential Proclamation 9705 , (Exhibit CHE -8 and USA -9), p. 
11629 (providing for additional duties on imports of flat -rolled steel products; steel bars and rods; steel wire; 
steel sheet piling; steel rails; steel fish -plates and sole plates; steel tubes, pipes and hollow profiles; steel 
ingots; products of stainless steel; and other products of iron or steel). See also Steel Report,  (Exhibit CHE -2 
and USA -7), pp. 21 -22; Aluminium Report, (Exhibit CHE-5 and USA -8), p. 20.  
479 Presidential Proclamation 9740 , (Exhibit CHE -10 and USA -13), pp. 20683 -20684; Presidential 
Proclamation 9758 , (Exhibit CHE -16 and USA -16), p. 25850; and Presidential Proclamation 9759 , (Exhibit CHE -
11 and USA -15), p p. 25857-25858. Moreover, these proclamations follow Presidential Proclamations 9710 and 
9711 discussing the appropriate means to ensure that exemptions from the additional duties do not undermine 
the national security objectives of the duties and noting that w ithout "satisfactory alternative means addressing 
long-term solutions… the industry will continue to decline, leaving the United  States  at risk of becoming reliant 
on foreign producers of [steel and aluminium] to meet [its] national security needs". (See P residential 
Proclamation 9710 , (Exhibit CHE -14 and USA -12), pp. 13356 -13357 and Presidential Proclamation 9711, 
(Exhibit CHE -9 and USA -11), p p. 13362 -13363 ). 
480 See Presidential Proclamation 9740 , (Exhibit CHE -10 and USA -13), p. 20683; Presidential 
Proclama tion 9758 , (Exhibit CHE -16 and USA -16), p. 25849; and Presidential Proclamation 9759 , (Exhibit CHE -
11 and USA -15), p. 25857.  WT/DS556/R  
 
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  security considerations".481 Moreover, the Presidential Proclamations discussed above indicate that 
the measures at issue may be modified or removed based on monitoring by the US Secretary of 
Commerce an d review of  "the status of [steel and aluminium] imports with respect to national 
security" .482 The Panel also considers relevant the procedures under which the measures were 
adopted and applied, and in particular the consultations carried out with departme nts of government 
such as the US Department of Defense in relation to certain criteria for determining effects of imports 
on national security.483 
7.110.   The Panel further notes that the national security considerations described above are 
reflected in notificatio ns and statements made by the United  States  before various official bodies of 
the WTO both prior to and following the adoption of the measures at issue. In a meeting of the WTO 
Council of Goods on 10  November  2017, before completing its Section  232 investi gations into steel 
and aluminium imports, the United  States  noted that these investigations "were being conducted by 
the Bureau of Industry and Security (BIS), a Department of the US Commerce Agency". The 
United  States  further remarked that the purpose of these investigations was to "determine the effect 
of steel and aluminium imports on US national security, and whether the global excess capacity 
problem in those industries was threatening the ability of the United  States  to meet its national 
security need s".484  
7.111.   In subsequent discussions at the WTO, the United  States  explicitly referred to Article  XXI of 
the GATT  1994 in connection with the measures on steel and aluminium under Section  232. Shortly 
after Presidential Proclamations 9704 and 9705 introduced t he additional duties discussed above, 
the United  States  provided information concerning these proclamations in a meeting of the WTO 
Council for Trade in Goods. At this meeting, the United  States  referred to "the findings and 
recommendations in investigatio ns concerning the impact of steel and aluminium imports on US 
national security" and indicated that it was providing this information "pursuant to Section  232 of 
the Trade Expansion Act of 1962, as amended, and consistent with the Decision Concerning 
Article XXI of the General Agreement taken by the GATT Council on 30  November  1982".485 In a 
communication shortly thereafter to the Committee on Safeguards, the United  States  responded to 
a request for consultations under Article  12.3 of the Agreement on Safeguards and referred to 
information it had provided to the WTO Council for Trade in Goods "consistent with the Decision 
Concerning Article  XXI of the General Agreement taken by the GATT Council on 
30 November  1982".486  
 
481 Presidential Proclamation 9704 , (Exhibit CHE -13 and USA -10), p. 11621; Presidential Proclamation 
9705, (Exhibit CHE -8 and USA -9), p. 11627; Presidential Proclamation 9776 , (Exhibit CHE -24 and USA -19), p. 
45020; and Presidential Proclamation 9777 , (Exhibit CHE -23 and USA -18), p. 45026. See also the March 
Interim Final Rule , (Exhibit CHE -20 and USA -20), p. 12111 and the September Int erim Final Rule , (Exhibit 
CHE-22 and USA -21), p. 46058 (explaining that this criterion allows the US Department of Commerce, in 
consultation with other parts of the US Government as warranted, to consider impacts on US national security 
that may result fro m not approving an exclusion and that the demonstrated concern with US national security 
would need to be tangible, clearly explained and would be ultimately determined by the US Government).  
482 Presidential Proclamation 9704 , (Exhibit CHE -13 and USA -10), p p. 11621 -11622; Presidential 
Proclamation 9705 , (Exhibit CHE -8 and USA -9), p. 11628. See also Presidential Proclamation 9740 , (Exhibit 
CHE-10 and USA -13), p. 20684; Presidential Proclamation 9758 , (Exhibit CHE -16 and USA -16), p. 25850; and 
Presidential Pro clamation 9759 , (Exhibit CHE -11 and USA -15), p. 25858. The Panel notes that the measures 
applicable to imports from certain countries have been modified under this authority. (See e.g. Presidential 
Proclamation 9772 , (Exhibit CHE -12); Presidential Proclamation 9893, (Exhibit CHE -74 and USA -232); 
Presidential Proclamation 9894, (Exhibit CHE -73 and USA -233); Presidential Proclamation 9980, (Exhibit CHE -
72 and USA -225); Presidential Proclamation 10060 , (Exhibit CHE -75 and USA -234); and Presidential 
Proclamation 10064 , (Exhib it CHE -76 and USA -235)) . 
483 See Steel Report,  (Exhibit CHE -2 and USA -7), pp. 18 -20 and Appendices E -G; Aluminium Report, 
(Exhibit CHE-5 and USA -8), pp. 18 -19 and Appendices A -B. See also Presidential Proclamation 9704 , (Exhibit 
CHE-13 and USA -10), President ial Proclamation 9705, (Exhibit CHE -8 and USA -9), Presidential Proclamation 
9758, (Exhibit CHE -16 and USA -16); and Presidential Proclamation  9759, (Exhibit CHE -11 and USA -15) 
(directing the US Secretary of Commerce to consider adjustments to the additional  duties and import quotas in 
consultation with the Secretary of Defense).  
484 Council for Trade in Goods, Minutes of the Meeting held on 10  November  2017, G/C/M/130, (Exhibit 
USA-80), pp. 26 -27. 
485 Council for Trade in Goods, Minutes of the Meeting held on 23 and 26  March  2018, G/C/M/131, 
(Exhibit USA -81), pp. 26 -27.  
486 Committee on Safeguards, Communication from the United  States , G/SG/168,  (Exhibit USA-82), 
pp. 1-2 and fn  2. WT/DS556/R  
 
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  7.112.   In a meeting of the WTO General Co uncil on 8  May 2018, the United  States  referred to "the 
reasons underlying the United States' defense of critical national security interests" and recalled the 
Presidential Proclamations under Section  232 "determining that tariffs are necessary to adjust 
imports of steel and aluminum articles that threaten to impair the national security of the 
United  States ". The United  States  further referred at that meeting to having "previously informed 
Members about the proclamations issued by the President pursuant to  Section  232 of the Trade 
Expansion Act of 1962, as amended". The United  States  additionally referred to its "statement at 
the Council for Trade in Goods meeting on March 23 – a statement we provided consistent with the 
Decision Concerning Article  XXI of t he General Agreement taken by the GATT Council on 
30 November  1982".487 At a meeting of the DSB following the complainant's request for 
establishment of a panel in this dispute, the United  States  referred to the determination that 
"imports of steel and alum inum threaten to impair U.S. national security".488 
7.113.   On 28  September  2018, the United  States  notified import quotas on steel products from the 
Republic of Korea , Argentina, and Brazil, and aluminium products from Argentina to the WTO 
Committee on Market Acce ss. In this notification, the United  States  listed Article  XXI of the 
GATT  1994 as the "WTO Justification and Grounds for Restriction".489  
7.114.   Based on the foregoing evidence, the Panel considers that a central aspect of the design and 
application of the measu res at issue is their relation to the United  States ' determination of a threat 
to its national security under the relevant domestic laws. The national security considerations of the 
United  States  are manifest in the application, modification, and removal o f the additional duties, 
quotas, and exemptions discussed above. Moreover, this aspect of the measures was emphasi zed 
and explicitly linked to Article  XXI of the GATT  1994 by the United  States  in a series of notifications 
and statements to various official  bodies of the WTO. The Panel considers significant the indications 
at both the domestic and multilateral levels that the measures at issue related to the United  States ' 
determination of a threat to its national security and the explicit references to Arti cle XXI of the 
GATT  1994 as the legal basis under the covered agreements pursuant to which the measures were 
sought, taken, or maintained.490 While the domestic legal status or statements by a Member to 
official WTO bodies are not determinative of the legal  characterization of measures under the covered 
agreements in dispute settlement, the Panel considers such evidence to be relevant within the 
context of an objective assessment under Article  11.1(c) of the Agreement on Safeguards. This is 
particularly so w here there is evidence contemporaneous with the adoption of the measures that is 
confirmed by other relevant evidence of the measures' design and application. In this dispute, the 
features of the measures outlined above indicate that the United  States ' determination of a threat 
to its national security under Section  232 is a central aspect of the measures with respect to their 
legal characterization as being sought, taken, or maintained pursuant to Article  XXI of the 
GATT  1994.491 
7.115.   Regarding the applicabil ity of Article  XIX of the GATT  1994 and the Agreement on 
Safeguards, Switzerland refers to the findings in the Steel and Aluminium Reports pertaining to the 
adverse impact of imports on domestic steel and aluminium industries of the United  States . In 
 
487 Statement dated 8  May 2018 of the Deputy US Trade Representative and US Permanen t 
Representative to the WTO, WTO General Council , (Exhibit USA-83), p. 3  (further noting that the United  States  
did not take action pursuant to Section  201 of the Trade Act of 1974, which is the law under which the 
United  States  imposes safeguard measures) .  
488 Statements dated 29  October  2018, 21  November  2018, and 4  December  2018 of the United  States , 
WTO Dispute Settlement Body  (CHE-35 (excerpt) and USA -84 (full version) ). The United  States  further stated 
as follows at this meeting with respect to Article  XXI of the GATT  1994 and the measures at issue:  
The United  States  has given detailed explanations that the measures at issue are justified under 
Article  XXI of the GATT  1994. In particular, we have explained that these measures are 
necessary to address the threatened impairment that these imports of steel and aluminum 
articles pose to U.S. national security.  
489 Committee on Market Access, Notification Pursuant to the Decision on Notification Procedures for 
Quantitative Restrictions (G/L/59/Rev.1), G/MA/QR/N/USA/4, (Exhibit USA-85), p. 6 . 
490 Given the consistent indications both prior and subsequent to the adoption of the measures at issue, 
the Panel finds support for the measure s being "sought, taken or maintained" within the meaning of 
Article  11.1(c). The Panel notes in this regard the disjunctive nature of these requirements and does not 
consider it necessary in the circumstances of this dispute to make separate determinations  as to which 
evidence reflects the measures having been "sought", "taken", or "maintained" pursuant to a provision of the 
GATT  1994 other than Article  XIX.  
491 See e.g. Appellate  Body Reports, China – Auto Parts , para.  171; Indonesia – Iron or Steel Product s, 
para. 5.60. WT/DS556/R  
 
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  particular, Switzerland highlights that the reports identify increased imports of steel and aluminium 
to the United  States , determine that there was injury to the domestic steel and aluminium industries 
due to increased imports, and examine such injury by refer ence to factors that are typically 
associated with a finding under Article  4.2(a) of the Agreement on Safeguards.492  
7.116.   The Panel notes that the findings in the Steel and Aluminium Reports pertaining to the state 
of the United  States ' domestic steel and alumi nium industries, including the decrease in domestic 
production, high import penetration, low -capacity utili zation and declining employment, are made 
in the context of the determination by the US Secretary of Commerce that steel and aluminium are 
important to the United  States ' national defen ce requirements and critical infrastructure sectors. 
These reports discuss the displacement of domestic steel and aluminium by imports in relation to 
the risk that the United  States ' domestic industries will be rendered incapable of meeting its national 
security needs, especially in times of national emergencies. The Steel and Aluminium Reports also 
recall the direction under Section  232 that the relationship between the weakening of the 
United  States ' internal economy an d impairment of its national security shall be determined by 
reference to factors including "any substantial unemployment, decrease in revenues of government, 
loss of skills or investment, or other serious effects".493 The reports recommend measures to 
increase the capacity utili zation of the United  States ' domestic industries with the specific objective 
of enabling them to meet projected national security needs .494  
7.117.   Viewed in their context, the findings in the Steel and Aluminium Reports confirm that the 
aspects of the measure s most central to their legal characterization under Article  11.1(c) of the 
Agreement on Safeguards concern the national security considerations  as reflected in Section  232 
and reiterated in the relevant domestic legal acts and instruments. The examination in the Steel and 
Aluminium Reports of the state of the domestic steel and aluminium industries is an element of the 
United  States ' determinatio n of a threat to its national security under the relevant domestic laws. 
The Panel considers that it would be improper to assess such factors in isolation from the threat to 
national security that was determined to exist under Section  232 on the basis of t hose and other 
factors.  
7.8.4   Conclusion  
7.118.   In conclusion , the evidence before the Panel in relation to the design and application of the 
measures at issue indicates that the measures were sought, taken, or maintained pursuant to 
Article  XXI of the GATT  1994. Acco rdingly, the measures were sought, taken, or maintained pursuant 
to a provision of the GATT  1994 other than Article  XIX within the meaning of Article  11.1(c) of the 
Agreement on Safeguards.  
7.119.   The Panel's assessment of the measures being under the purview of Article  XXI of the 
GATT  1994 is without prejudice to the consistency of the measures with the specific terms and 
requirements of Article  XXI. The Panel recalls that its conclusions under Article  11.1(c) pertain solely 
to the issue of applicabili ty of the Agreement on Safeguards rather than the consistency of the 
measures at issue with the requirements of the other provision, namely Article  XXI of the 
GATT  1994, pursuant to which the measures were sought, taken, or maintained.  
 
492 Switzerland's first written submission, section IV.D.1.  
493 Section 232, ( Exhibit CHE -1 and USA -1), § 1862(d); Section 232 regulations, ( Exhibit CHE-21 and 
USA-2), § 705.4.  
494 See Aluminium Report, ( Exhibit CHE -5 and USA -8), p. 107 ("import restrictions could help address 
the threat to U.S. national security… [Q]uotas or tariffs would be designed, even after any exemptions (if 
granted), to enable U.S. aluminum producers to utilize an average of 80 percent of their production capacity . 
The quotas and tariffs described below should be sufficient to enable U.S. aluminum producers to operate 
profitably under current market prices for aluminum and will allow them to reopen idled capacity") and 108 ("A 
worldwide quota …would help ensure the  viability of those U.S. producers to meet national security needs"). 
See also Steel Report,  (Exhibit CHE -2 and USA -7), p. 58 ("Due to the threat of steel imports to the national 
security, as defined in Section  232, the Secretary recommends that the President take immediate action by 
adjusting the level of imports through quotas or tariffs on steel imported into the United  States , as well as 
direct additional actions to keep the U.S. steel industry financially viable and able to meet U.S. national 
security needs. The quota or tariff imposed should be sufficient, after accounting for any exclusions, to enable 
the U.S. steel producers to be able to operate at about an 80 percent or better of the industry 's capacity 
utilization rate based on available cap acity in 2017").  WT/DS556/R  
 
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  7.9  Article  XXI(b) of th e GATT  1994  
7.9.1   Introduction  
7.120.   The United  States  invokes Article  XXI(b) of the GATT  1994 in relation to the measures at 
issue as "action[s] which [the United States] considers necessary for the protection of its essential 
security interests". The Panel will addr ess the United  States ' invocation of Article  XXI(b) of the 
GATT  1994 in relation to whether the measures found to be inconsistent with Articles I:1, II:1, and 
XI:1 of the GATT  1994 are "actions" falling within the scope of Article  XXI(b) of the GATT  1994.  
7.121.   The Panel will first address the parties' interpretive disagreement on the extent to which the 
terms of Article  XXI(b) of the GATT  1994 permit review of a Member's invocation of that provision 
in proceedings under the DSU. In doing so, the Panel will addr ess specific issues of interpretation 
contested by the parties, including the United  States ' arguments as to the "self -judging" nature and 
"non-justiciability" of Article  XXI(b) of the GATT  1994, in accordance with Article  3.2 of the DSU and 
customary rule s of interpretation of public international law. The Panel will then assess the evidence 
and arguments submitted by the parties in relation to the measures found to be inconsistent with 
provisions of the GATT  1994 in light of the conclusions reached regard ing the interpretation of 
Article  XXI(b) of the GATT  1994.  
7.9.2   Interpretation of Article  XXI(b) of the GATT  1994  in accordance with Article  3.2 of 
the DSU  
7.122.   Article  XXI of the GATT  1994 is entitled "Security Exceptions" and provides:  
Nothing in this Agreement s hall be construed  
(a) to require any contracting party to furnish any information the disclosure of which 
it considers contrary to its essential security interests; or  
(b) to prevent any contracting party from taking any action  which it considers  necessar y 
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 mater ials as is carried on directly or indirectly for the 
purpose of supplying a military establishment;  
(iii) taken in time of war or other emergency in international relations; or  
(c) to prevent any contracting party from taking any action in pursuance of it s 
obligations under the United Nations Charter for the maintenance of international peace 
and security.  
7.123.   The United  States  submits that the Panel should limit its findings in this dispute to 
recogni zing the invocation of Article  XXI(b) because "[t]he text o f [the provision], in its context and 
in the light of the agreement's object and purpose, establishes that the exception is self -judging."495 
According to the United  States , "[t]he self -judging nature of … Article  XXI(b) is demonstrated by 
that provision's reference to actions that the Member 'considers necessary' for the protection of its 
essential security interests."496 Consequently, "the only requirement for the Member invoking 
Article  XXI is for the Member to consider that a particular action  is necessary to protect its essential 
security interests in any of the circumstances identified in Article  XXI(b)."497 The United  States  
maintains that this requirement is met "once the Member indicates, in the context of dispute 
 
495 United  States ' first written submission , para.  23. 
496 United  States ' first written submission , para.  25.  
497 United  States ' response to Panel question No.  33. WT/DS556/R  
 
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  settlement, that it has ma de such a determination" that it "consider[s] one or more of the 
circumstances set forth in Article  XXI(b) to be present".498  
7.124.   A premise of the United  States ' characterization of Article  XXI(b) as "self -judging" is that, 
based on "the text and grammatical s tructure" of the provision, "the phrase 'which it considers' 
qualifies all of the terms in the single relative clause that follows the word 'action'".499 According to 
the United  States , this "single relative clause" in Article  XXI(b) "begins with 'which it considers 
necessary' and ends at the end of each subparagraph" and "describes the situation which the 
Member 'considers' to be present when it takes such 'action'".500 The United  States  argues from this 
premise that, "[b]ecause  the relative clause describing the action begins with 'which it considers', 
the other elements of this clause are committed to the judgment of the Member taking the action."501 
The United  States  thus posits an "overall grammatical structure" of Article  XXI(b) according to which 
a panel may not "determine, for itself, whether a security interest is 'essential' to the Member in 
question, or whether the circumstances described in one of the subparagraphs exists".502  
7.125.   Switzerland contests the interpretive and gr ammatical basis of the United  States ' argument 
and emphasi zes the objective review in dispute settlement proceedings of terms in Article  XXI(b) 
that are not qualified by the phrase "which it considers".503 Switzerland  thus disputes the 
characterization of A rticle XXI(b) as "self -judging" and contends that the measures are not justified 
under this provision based on the arguments and evidence before the Panel. In particular, 
Switzerland argues that the United  States ' interpretation fails to give effective  meaning to the 
subparagraphs of Article  XXI(b) and is incompatible with the requirements of the DSU concerning 
the independent review of matters raised under the covered agreements.504  
7.126.   The Panel recalls that it is required to address the United  States ' invoca tion of Article  XXI(b) 
of the GATT  1994 in accordance with Article  3.2 of the DSU and the customary rules of interpretation 
of public international law.505 A threshold point of interpretive disagreement between the parties is 
the extent to which the terms of Article  XXI(b) of the GATT  1994 permit review of a Member's 
invocation of that provision by a panel established under the DSU. While the parties refer t o 
numerous aspects of treaty interpretation in relation to this question, both parties base their 
positions primarily on the terms of Article  XXI(b) of the GATT  1994 and the rule of interpretation set 
out in Article  31(1) of the Vienna  Convention  that "[a]  treaty shall be interpreted in good faith in 
accordance with the ordinary meaning given to the terms in their context and in the light of its object 
and purpose."506 As noted above507, this rule of interpretation forms part of the "customary rules of 
interp retation of public international law" referred to in Article  3.2 of the DSU.508 Accordingly, the 
Panel will examine the ordinary meaning of the terms of Article  XXI(b) of the GATT  1994 in their 
context and in light of the treaty's object and purpose, focusi ng on the parties' disagreement as to 
whether the terms of the provision permit review of its invocation in proceedings under the DSU.  
7.127.   Pursuant to the security exceptions under Article  XXI of the GATT  1994, "[n]othing in this 
Agreement shall be construed to require" a Member "to furnish any information" described under 
paragraph (a) or "to prevent" a Member "from taking any action" described  under paragraphs (b) or 
(c) of that provision. The three paragraphs (a) to (c) are separated by semicolons followed by the 
 
498 United  States ' response to Panel question No.  52.a; see also response to Panel  question Nos. 35 and 
38; second written submission, para.  26. 
499 United  States ' second written submission, paras.  7-8; see also ibid. para.  15 ("the ordinary meaning 
of the terms of Article  XXI(b) establishes that, contrary to the complainant's arguments, the word 'considers' 
qualifies all the terms in the chapeau and the subparagraph endings of Article  XXI(b)").  
500 United  States ' response to Panel question No.  36. 
501 United  States ' second written submission, para.  25; see also response to Panel question Nos . 39 and 
40 ("The text reserves to the Member the judgment as to whether action is necessary in one or more of those 
circumstances for the protection of its essential security interests.").  
502 United  States ' response to Panel question No.  37. 
503 See Switzerland's response to Panel question Nos. 35 -38; opening statement at the first meeting of 
the Panel, paras.  30-73. 
504 See e.g. Switzerland's opening statement at the first meeting of the Panel , paras.  19-29; second 
written submission, paras.  136-148. 
505 See section 7.1 above.  
506 See Switzerland's response to Panel question No.  56; United  States ' response to Panel question 
No. 56. 
507 See para.  7.86 above.  See also Appellate  Body Reports, US – Gasoline , p. 17; India – Patents (US) , 
para. 46; Argentina – Textiles and Apparel , para.  42; US – Carbon Steel , para.  61. 
508 See e.g. Appellate  Body Report, US – Gasoline , p. 17.  WT/DS556/R  
 
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  word "or" and Article  XXI concludes in a full stop at the end of paragraph (c). Paragraph (b) of 
Article  XXI provides that the "action" that a Member is not prevented from taking is "any action 
which [the Member] considers necessary for the protecti on of its essential security interests", 
followed by three subparagraphs that are enumerated (i) to (iii).509 These subparagraphs are 
separated by semicolons and the word "or" appears after the semicolons at the end of paragraph 
(a) and subparagraph (iii) o f Article  XXI(b).510  
7.128.   In providing for "any action" that "[n]othing in this Agreement shall be construed … to 
prevent", Article  XXI(b) establishes an exception to obligations under other provisions of the 
GATT  1994. The "action" covered by this provision is  one that a Member "considers necessary for 
the protection of its essential security interests". Dictionary definitions of the term "consider" include 
to "regard in a certain light or aspect, look upon as" or "think or take to be".511 Under Article  XXI(b), 
a Member must consider that its action is "necessary for" a defined purpose, namely "the protection 
of its essential security interests". Dictionary definitions of "interest" include "the relation of being 
involved or concerned as regards potential detrime nt or (esp.) advantage".512 The relevant interests 
under Article  XXI(b) pertain to "security", which may be defined as "the condition of being protected 
from or not exposed to danger".513 The description of these security interests as "essential" indicates 
the heightened significance of the security interests that Members are not prevented from taking 
action to protect under Article  XXI(b).514 As indicated by the possessive pronoun "its", the relevant 
"security interests" are those of the Member taking action under Article  XXI(b).515 
7.129.   Interpreting the terms of Article  XXI(b) within the structure and context of the provision as 
a whole, the Panel notes the textual separation and indentation under Article  XXI of the three 
paragraphs and a similar separation and indentation of the three subparagraphs under paragraph 
 
509 The parties have used different terminology to refer to the different parts of Article  XXI, including 
"chapeau", "subparagraph", and "subparagraph ending". The Panel consid ers that such terminology is not 
determinative of the proper interpretation so long as it is consistently applied in describing the provision.  
510 The French and Spanish texts are similarly structured with minor differences, including a colon at the 
end of paragraph (b) before the three subparagraphs. In addition, the Spanish text contains a colon after the 
opening terms of Article  XXI before paragraph (a), and in the French text the conjunction " ou" appears at the 
beginning of paragraphs (b) and (c).  
511 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 493. See also Le 
Petit Robert Dictionnaire de la Langue Francaise (2000), p. 921 (defining " estimer " as " [a]voir une opinion sur " 
(to have an opinion on), " consid érer" (to consi der), " croire " (to believe), " regarder " (to regard), or " penser " (to 
think)); Diccionario de la Lengua Española , 22nd Edition  (Real Academia Española, 2001), p. 676 (defining 
"estimar " as " creer" (to believe) or " hacer aprecio y estimación de alguien o de algo" (make appreciation or 
estimation of someone or something)); The New Shorter Oxford English Dictionary , 4th edn, L. Brown (ed.) 
(Clarendon Press, 1993), ( Exhibit USA -22), p. 485; Shorter Oxford English Dictionary, 6th edn, A. Stevenson 
(ed.) (Oxford University Press, 2007), ( Exhibit CHE -56), p. 496; Larousse, definition of " estimer ", 
https://www.larousse.fr/dictionnaires/francais/estimer/31188?q=estimer31111 (accessed 11  February  2020), 
(Exhibit CHE-60); and Diccionario de la lengua española, definition of " estimar ", 
https://www.dle.rae.es/estimar?m=form (accessed 11  February  2020) , (Exhibit CHE-61). 
512 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 1400 (also defining 
"interest" as "[a] thing that is of some importance to a person, company, state"). See also Le Petit Robert 
Dictionnaire de la Langue Francaise (2000), p. 1340 (defining " intérêt " as " [c]e qui importe, ce qui convient 
(en quelque domaine que ce soit) " (what matters or what suits in any domain)); Diccionario de la Lengua 
Española , 22nd Edition  (Real Academia Española, 2001), p. 874 (defining " interés " as " [i]nclinación del ánimo 
hacia un objeto, una persona, una narración, etc. " (inclination of mind towards an object, a person, a 
narration, etc.));  and The New Shorter Oxford English Dictionary , 4th edn, L. Brown (ed.) (Clarendon Press, 
1993), ( Exhibit USA -22), p. 1393.   
513 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 2734. See also Le 
Petit Robert Dictionnaire de la Langue Francaise (2000), p. 2310 (defining " sécurité " as " [s]ituation, état 
tranquille qui résulte de l'absence réelle de danger " (tranquil situation, state which results from the real 
absence of danger)); Diccionario de la Lengua Española , 22nd Edition  (Real Academia Española, 2001), p. 
1385 (defining " seguridad " as " [c]ualidad de seguro " and " seguro " as " [l]ibre y exento de  todo peligro, daño o 
riesgo " (free and exempt from all danger, damage or risk)); and The New Shorter Oxford English Dictionary , 
4th edn, L. Brown (ed.) (Clarendon Press, 1993), ( Exhibit USA -22), p. 2754. 
514 Dictionary definitions of "essential" include "[t ]hat is such in the absolute or highest sense" and 
"[a]ffecting the essence of anything; significant, important". See also Le Petit Robert Dictionnaire de la Langue 
Francaise (2000), p. 918 (defining " essentiel " as " [q]ui est absolument nécessaire " (absolu tely necessary) or 
"[l]e plus important " (the most important)); Diccionario de la Lengua Española , 22nd Edition  (Real Academia 
Española, 2001), p. 655 (defining " esencial " as " [s]ustancial ", "principal ", or " notable "); and The New Shorter 
Oxford English Di ctionary , 4th edn, L. Brown (ed.) (Clarendon Press, 1993), ( Exhibit USA -22), p. 852. 
515 The French and Spanish language versions similarly use the possessive pronouns "sa" and "su" 
respectively. See Le Petit Robert Dictionnaire de la Langue Francaise (2000) , p. 2365 and Diccionario de la 
Lengua Española , 22nd Edition  (Real Academia Española, 2001), p. 1424.  WT/DS556/R  
 
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  (b) of Article  XXI. The introductory terms of Article  XXI ("Nothing in this Agreement shall be 
construed") form the beginning of a sentence with  three alternative endings to this sentence in each 
of the paragraphs (a) to (c). Under paragraph (b) of Article  XXI, the enumerated subparagraphs (i) 
to (iii) are alternative endings to the sentence following the terms "any action which it considers 
neces sary for the protection of its essential security interests". The punctuation and conjunctions 
linking these various parts of Article  XXI serve the function of listing the alternative endings to the 
provision. These considerations indicate that Article  XXI(b) forms part of, and provides in its own 
subparagraphs, a list of alternative endings to form a sentence. Therefore, Article  XXI(b) is to be 
given meaning as a complete sentence with the enumerated subparagraphs (i)  to (iii) representing 
alternative endi ngs to the sentence that begins "Nothing in this Agreement shall be construed".  
7.130.   In continuation of the sentence formed under Article  XXI(b), subparagraphs (i) and (ii) begin 
with the terms "relating to" and subparagraph (iii) begins with the terms "taken i n time of". The 
terms "relating to" indicate a connection to the "materials" and "traffic" in subparagraphs (i) and 
(ii), respectively, while the terms "taken in time of" indicate a temporal relationship to the 
circumstances in subparagraph (iii). The Pane l understands these opening terms in each 
subparagraph to qualify and describe the "action" referred to in Article  XXI(b). This is confirmed in 
the French and Spanish versions of Article  XXI(b) in which the corresponding terms (" se rapportant " 
and " appliqu ées" in French and " relativas " and " aplicadas " in Spanish) qualify nouns that are 
feminine and plural translations of "any action" (" toutes mesures " in French and " todas las medidas " 
in Spanish).516 The relation of the opening terms of each subparagraph to the "action" in 
Article  XXI(b) is further supported by their parallel positioning in the text and their common function 
of linking the remaining terms of each subparagraph to those in paragraph (b).  
7.131.   As a result, Article  XXI(b) applies to actions "relating  to" the "materials" and "traffic" 
described in subparagraphs (i) and (ii), respectively, and to actions "taken in time of" the 
circumstances referred to in subparagraph (iii). These subparagraphs provide alternative endings 
that are an integral part of co mplete sentences formed under Article  XXI(b). Moreover, there is no 
textual indication that the sentence endings in the subparagraphs of Article  XXI(b) are merely 
illustrative or that Article  XXI(b) may apply to actions other than those described in the 
subparagraphs.517 These considerations indicate that the subparagraphs are exhaustive in 
 
516 The Panel understands that the parties agree that the subparagraphs qualify and relate to the 
"action" in Article  XXI(b), notwithstanding some disagreement as to the precise basis for this conclusion. The 
United  States  submits in this regard that, under " [t]he most natural reading" of Article  XXI(b), subparagraphs 
(i) and (ii) relate to a Member's "essential security interests" whereas subparagraph (iii) modifies "action" that 
is "taken" by a Member. At the same time, the United  States  considers that "an i nterpretation that best 
reconciles the idiosyncratic Spanish text with the English and French texts" is one in which the "action" is 
modified by the terms following it and "all three subparagraph endings refer to 'any action which it considers'."  
(United  States' response to Panel question Nos. 39 and 40; see also second written submission, para s. 20-22). 
Under this reading, the United  States  argues that the terms of the provision still form a "single relative clause" 
in which the phrase "which it considers"  modifies the entirety of the subparagraphs. (United  States ' response 
to Panel question Nos. 41 -43; United  States ' second written submission, paras.  93-94; United  States ' opening 
statement at the second meeting of the Panel, paras.  8-9). Switzerland contes ts the grammatical basis of the 
United  States ' argument on a "single relative clause" in Article  XXI(b) and argues that the subparagraphs 
qualify the term "action". (See e.g. Switzerland 's response to Panel question No s. 40 and 90 ). 
For the purposes of res olving the contested issues of interpretation under Article  XXI(b) in this dispute, 
the Panel considers that it is sufficient to conclude that the term "action" is qualified by the subparagraphs, as 
supported by the textual analysis in this section and the concordance of plural and feminine terms in the 
French and Spanish versions of Article  XXI(b) . The Panel notes the United  States ' argument on the 
reconciliation of texts under Article  33 of the VCLT relates to its contentions regarding a "single relati ve clause" 
in Article  XXI(b) and the "self -judging" nature of the provision, which the Panel addresses in this section in 
accordance with Article  3.2 of the DSU and its mandate to make such findings as will assist the DSB in making 
the recommendations or r ulings provided for in the covered agreements. To the extent that the comparison of 
authentic texts discloses any difference in meaning under Article  33(4) of the VCLT, the Panel considers that 
the application of Articles 31 and 32 of the VCLT removes any such difference so as to resolve the contested 
issues of interpretation in this dispute. Accordingly , the Panel does not consider it necessary for the purposes 
of this dispute to address in further detail the parties' arguments on the reconciliation of aut hentic texts in 
relation to the contested issues of interpretation under Article  XXI(b)  and its application to the measures at 
issue in this dispute . 
517 The subparagraphs of Article  XXI(b) of the GATT  1994 may be contrasted with other provisions of 
the cove red agreements containing terms that explicitly indicate the illustrative nature of the provisions. (See 
e.g. Article  2.2 of the TBT  Agreement  ("such legitimate objectives are, inter alia , national security 
requirements …" ); Article  3.5 of the Anti -Dumping  Agreement ("factors which may be relevant [for determining 
injury] include, inter alia , the volume and prices of imports …"); Article  1.1(a)(1) of the SCM  Agreement  ("a 
 WT/DS556/R  
 
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  establishing the circumstances in which a Member may take the "action which it considers necessary 
for the protection of its essential security interests" within the mean ing of Article  XXI(b).518 
7.132.   Regarding the discretion of Members taking "action" under Article  XXI(b), the parties 
acknowledge the deference accorded to a Member's judgment for "any action which it considers 
necessary for the protection of its essential securi ty interests".519 The terms "which it considers" 
denote the consideration or judgment of the Member taking action under Article  XXI(b)520, which is 
further reinforced by providing that the Member shall not be prevented from taking "any" action 
within the terms of the provision.521 Regarding the extent of discretion accorded by the terms "which 
it considers", the parties disagree as to what precisely in Article  XXI(b) is qualified by these terms 
and the implications of such qualification for the review of a Member's invocation of Article  XXI(b) 
in dispute settlement proceedings. In particular, the parties dispute whether the three enumerated 
subparagraphs (i) to (iii) of Article  XXI(b) are qualified by the terms "which it considers" and, 
relatedly, how to int erpret those subparagraphs in accordance with the requirements of the DSU. A 
specific question in this regard is whether, as argued by the United  States  and contested by 
Switzerland522, the clause beginning with the relative pronoun "which" constitutes a "single relative 
clause" that includes the terms in subparagraphs (i) to (iii) of Article  XXI(b).  
7.133.   The Panel notes that the United  States  submits certain reference materials on English 
grammar in support of its contention that the subparagrap hs of Article  XXI(b) form part of a "single 
relative clause" that is entirely reserved to the judgment of the Member taking action under the 
provision.523 Due to the grammatical dimension of the United  States ' arguments concerning the 
"single relative claus e" in Article  XXI(b), the Panel examines the grammatical construction of the 
provision in relation to the contested issue of whether the subparagraphs of Article  XXI(b) are 
qualified by the terms "which it considers". The grammatical considerations raised by the parties 
reinforce the Panel's preceding textual analysis of Article  XXI(b) and are addressed insofar as they 
may inform the assessment of the ordinary meaning of the terms in their context.  
7.134.   The grammatical analysis of Article  XXI(b) for the purpose s of this dispute particularly 
concerns the relationship between various phrases and clauses within the overall sentence structure 
of the provision.524 As noted above, Article  XXI begins a sentence that is completed by the terms of 
paragraph (b) and the alt ernative endings in the subparagraphs thereunder. The opening terms of 
Article  XXI form a clause beginning with the terms "Nothing in this Agreement" and ending with the 
terms "any action" in paragraph (b). This clause can be characterized as an independen t clause in 
 
direct transfer of funds (e.g. grants, loans and equity infusion)"); and Annex  I to th e SCM  Agreement  
("Illustrative List of Export Subsidies") ).  
518 The Panel notes the agreement of parties as to the exhaustive nature of subparagraphs of 
Article  XXI(b) , notwithstanding their disagreement on the implications of this for review in by a panel 
established under the DSU. (See Switzerland's response to Panel question No.  39; United  States ' response to 
Panel question Nos. 39 and 40). For example, t he United  States  argues that the subparagraphs of 
Article  XXI(b) "form an integral part of the provision in that they complete the sentence begun in the chapeau, 
establishing three exhaustive circumstances in which a Member may act". At the same time, the United  States  
maintains that "[t] he fact that these circumstances are exhaustive, however, does  not mean that the Member 's 
invocation of Article  XXI(b) is subject to review." (United  States ' response to Panel question Nos. 39 and 40).  
519 Switzerland's response to Panel question No.  35; United  States ' response to Panel question No.  35.  
520 The French a nd Spanish language versions of Article  XXI(b) respectively use the phrases " qu'elle 
estimera " and " que estime ", indicating the estimation or consideration of the Member taking action under that 
Article. See Le Petit Robert Dictionnaire de la Langue Franca ise (2000), p. 824 and Diccionario de la Lengua 
Española , 22nd Edition  (Real Academia Española, 2001), p. 1270.  
521 The terms corresponding to " any action " in Article  XXI(b) in the French and Spanish versions are 
"toutes mesures " and " todas las medidas ", which may be understood as all measures. See Le Petit Robert 
Dictionnaire de la Langue Francaise (2000), pp. 2551 -2552; and Diccionario de la Lengua Española , 22nd 
Edition  (Real Academia Española, 2001), pp. 1485 -1486.  
522 Switzerland's response to Panel question No.  90. 
523 The Panel notes that the parties' arguments concerning the grammar of Article  XXI(b) focus on the 
English text of the provision, and the Panel accordingly focuses its assessment on the English text and th e 
specific reference materials on English grammar submitted by the parties. The Panel does not make any 
determination as to the status or authority of such reference materials but rather refers to them as relevant to 
addressing the parties' arguments and d escribing the grammatical construction of Article  XXI(b).  
524 A "clause" in this context has been defined as "a group of words containing both a subject and a 
predicate" that "functions as an element of a compound or complex sentence". A "phrase", by contras t, is "a 
brief expression that consists of two or more grammatically related words but that does not constitute a 
clause" (i.e. does not contain a noun and a verb). ( Merriam -Webster's Guide to Punctuation and Style  
(Merriam -Webster, Incorporated, 1995), ( Exhibit USA -95), pp. 231 and 233 ). WT/DS556/R  
 
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  that it contains a subject ("Nothing") and predicate ("shall be construed to prevent any Member 
from taking any action") that can stand alone as a complete sentence.525  
7.135.   Following this independent clause, the relative pronoun "which" in Article  XXI(b) begins a 
relative clause that can be grammatically characterized as a dependent clause in the sense that it is 
a group of words with a subject and verb that, unlike an independent clause, cannot stand on its 
own as a complete sentence.526 This relati ve clause is grammatically subordinate to the independent 
clause at the beginning of Article  XXI that ends with the word "action" in paragraph (b), qualifying 
the noun "action" to describe the action that a Member may take notwithstanding the obligations 
under the GATT  1994.527 The pronoun "it" refers to the Member taking action under Article  XXI(b) 
and is the subject of this relative clause. The verb "considers" is followed by an immediate object 
("necessary") that is further modified by a prepositional phr ase ("for the protection of") and noun 
phrase ("its essential security interests").528 
7.136.   Each of the subparagraphs of Article  XXI(b) begins with a participle that forms the beginning 
of a participle phrase.529 Specifically, subparagraphs (i) and (ii) begin wit h the present participle 
"relating" and subparagraph (iii) begins with the past participle "taken". As these participles qualify 
the noun "action"530, the terms following each participle function as adjectives describing the "action" 
under Article  XXI(b) an d thus can be characterized as participle or adjectival phrases qualifying that 
noun.531  
7.137.   The Panel does not consider that the grammatical construction of Article  XXI(b) definitively 
resolves whether the subparagraphs are qualified by the phrase "which it c onsiders" as part of a 
"single relative clause" in the manner contended by the United  States . The adjectival phrases in the 
subparagraphs of Article  XXI(b) could be regarded as continuations of the relative clause that begins 
with the relative pronoun "whi ch" in the sense that they provide alternative endings to the sentence 
formed under the provision. However, this does not necessarily compel the conclusion that the 
subparagraphs form part of a "single relative clause" in the sense argued by the United  States that, 
"[b]ecause the relative clause describing the action begins 'which it considers', the other elements 
of this clause are committed to the judgment of the Member taking the action."532 In support of its 
 
525 See W. Strunk Jr. and E.B. White, The Elements of Style , 4th edn (Allyn and Bacon, 1999), ( Exhibit 
USA-226), pp. 91 and 93 (an "independent clause" is "[a] group of words with a subject and verb that can 
stand alone as a  sentence". A "predicate" refers to "[t]he verb and its related words in a clause or sentence" 
and "expresses what the subject does, experiences, or is"). According to the United  States , through the 
language in this independent clause, "Article  XXI(b) crea tes an exception to the obligations in the 
[GATT  1994]". (See United  States ' response to Panel question No.  90). 
526 S. Greenbaum, English Grammar (Oxford University Press, 1996), ( Exhibit USA -93), p. 631 (a 
"relative clause" is used to "postmodify nouns" and is "introduced by a relative item" such as the relative 
pronoun "which"); R. Flesch and A.H. Lass, The Classic Guide to Better Writing (HarperPerennial, 1996), 
(Exhibit USA-94), p. 69 ("[w]ho and whic h are called relative pronouns  and introduce relative clauses". Using 
these relative pronouns "[makes] an independent clause into a relative or dependent clause – a group of words 
that can't stand by itself") (emphasis omitted); and W. Strunk Jr. and E.B. White, The Elements of Style , 4th 
edn (Allyn and Bacon, 1999), ( Exhibit USA-226), p. 91 (a "dependent clause" is "subordinate to an 
independent clause in a sentence" and begins with either a subordinating conjunction or a relative pronoun 
such as "which".)  (emphasis omitted).  
527 See e.g. S. Greenbaum, English Grammar (Oxford University Press, 1996), ( Exhibit USA -93), p. 631 
(a "relative clause" is used to "postmodify nouns" ); Merriam -Webster's Guide to Punctuation and Style  
(Merriam -Webster, Incorporated, 19 95), ( Exhibit USA-95), p. 233 (a subordinate clause "cannot stand alone, 
and must be either preceded or followed by a main clause"); and W. Strunk Jr. and E.B. White, The Elements 
of Style , 4th edn (Allyn and Bacon, 1999), ( Exhibit USA-226), p. 95 (a "subo rdinate clause" is a "clause 
dependant on the main clause in a sentence").  
528 See Merriam -Webster's Guide to Punctuation and Style  (Merriam -Webster, Incorporated, 1995), 
(Exhibit USA -95), p. 232 (a "noun phrase" consists of "a noun and its modifiers" wherea s a "prepositional 
phrase" consist of "a preposition and its object"); W. Strunk Jr. and E.B. White, The Elements of Style , 4th edn 
(Allyn and Bacon, 1999), ( Exhibit USA-226), p. 93 (a prepositional phrase is "[a] group of words consisting of a 
preposition, its object, and any of the object's modifiers").  
529 See Merriam -Webster's Guide to Punctuation and Style  (Merriam -Webster, Incorporated, 1995), 
(Exhibit USA -95), p. 232 (a "partici pial phrase includes a participle and functions as an adjective"); W. Strunk 
Jr. and E.B. White, The Elements of Style , 4th edn (Allyn and Bacon, 1999), ( Exhibit USA-226), p. 93 (a 
"participial phrase" is "[a] present or past participle with accompanying m odifiers, objects, or complements").  
530 See para.  7.130  above.  
531 See Merriam -Webster's Guide to Punctuation and Style  (Merriam -Webster, Incorporated, 1995), 
(Exhibit  USA-95), pp. 232 -233 ("[a] participle phrase includes a participle and functions as an adjective". An 
"adjective clause modifies a noun or pronoun and normally follows the word it modifies").  
532 United  States ' response to Panel question No.  36. WT/DS556/R  
 
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  view that, under the ordinary meaning of the E nglish text of Article  XXI(b), subparagraphs (i) and 
(ii) modify the phrase "essential security interests"533, the United  States  refers to rules of English 
grammar according to which "an adjectival phrase normally follows the word it modifies or is 
otherwise placed as closely to the word it modifies".534 According to this argument, the adjectival 
phrases in the subparagraphs of Arti cle XXI(b) would thus be part of the relative clause that begins 
with the word "which" and would modify the terms in that relative clause that appear closest to the 
subparagraphs.  
7.138.   The grammatical references cited by the United  States  do not indicate a cat egorical rule 
according to which the relative clause in Article  XXI(b) that begins "which it considers" must contain 
and qualify any following adjectival phrase (i.e. those contained in the subparagraphs). Indeed, the 
United  States  acknowledges a deviation  in Article  XXI(b) from the general rule it cites as "the 
drafters departed from typical English usage" in subparagraph (iii) by placing the adjectival phrase 
in that subparagraph next to "essential security interests", rather than next to the term modifie d by 
that adjectival phrase ("action").535 With respect to the interpretation of Article  XXI(b) , the 
qualification of the noun "action" in paragraph (b) by the participle phrases in the subparagraphs is 
not solely determined by rigid application of grammar but follows from the ordinary meaning of 
these terms, notwithstanding the existence of a relative clause in paragraph (b) between the noun 
"action" and textually discrete adjectival phrases qualifying that "action".  
7.139.   The foregoing considerations reflect th e potential limitations of a purely grammatical analysis 
of the terms of Article  XXI(b) and the significance of additional interpretive considerations in 
ascertaining the ordinary meaning of the terms in their context. In addressing the parties' dispute 
as to the interpretation of Article  XXI(b) of the GATT  1994, the Panel is mindful of the principle of 
effective treaty interpretation according to which all terms of a treaty are to be given meaning and 
effect. Relatedly, the terms used in a treaty must not be reduced to redundancy or inutility.536 The 
meaning and effect of the subparagraphs derives not only from considerations of grammatical 
qualification but also the specific terms used within the overall structure of the provision. 
Characterizing the subpar agraphs as part of a "single relative clause", even if grammatically 
permissible, does not account for the ordinary meaning of actions "relating to" specified "materials" 
and "traffic" and to actions "taken in time of" specified circumstances. Nor does it account for the 
structure of Article  XXI(b) and the textual separation of the subparagraphs into an enumerated list, 
which corresponds to the role of the subparagraphs as alternative sentence endings that collectively 
delimit the scope of Article  XXI(b).  
7.140.   The Panel notes the United  States ' argument that Article  XXI(b) "should be read as a single 
clause and not as introducing separate conditions".537 Further, the United  States  cautions against an 
approach that would "atomize this single relative clause" becau se "[a]rtificially separating the words 
'which it considers necessary' from the language that immediately follows and continues the clause 
– for the protection of – would erroneously interpret certain terms of Article  XXI(b) in isolation."538 
In the Panel's  view, giving meaning and effect to the terms of the subparagraphs does not entail 
reading them in isolation from the other terms of Article  XXI(b) or "introducing separate conditions" 
beyond what is reflected in the terms themselves.539 The terms of Articl e XXI(b) grant discretion to 
 
533 See fn  516 above.  
534 United  States ' response to Panel question No.  90 (referring to Merriam -Webster's Guide to 
Punctuation and Style (Merriam -Webster, Incorporated, 1995), ( Exhibit USA -176), pp. 232 -233 ("[t]he 
adjective clause modifies a noun or pronoun and normally follows the word it modifies" and "[u]sage problems 
with phrases occur m ost often when a modifying phrase is not placed close enough to the word or words that it 
modifies") and S. Benedict (ed.), Harper's English Grammar (Harper & Row, 1966), ( Exhibit USA-96), p. 186 
("adjectives and adverbial phrases, like adjectives and adve rbs themselves should be placed as closely as 
possible to the words they modify") ). 
535 United  States ' response to Panel question No.  90. 
536 See e.g. Appellate  Body Reports, US – Gasoline , p. 23; Japan – Alcoholic Beverages II , p. 12; India – 
Patents (US) , para. 45.  
537 United  States ' response to Panel question No. 40. 
538 United  States ' response to Panel question No.  36; see also second written submission, para.  8. 
539 The United  States  draws the Panel's attention to commentaries of the International Law Commission 
that, "[p]roperly limited and applied, the maxim [of effective treaty interpretation] does not call for an 
'extensive' or 'liberal' interpretation in the sense of an interpret ation going beyond what is expressed or 
necessarily to be implied in the terms of the treaty." ( United  States ' response to Panel question No.  47 citing 
Draft Articles on the Law of Treaties with commentaries, Yearbook of the International Law Commission, 1 966, 
Vol. II , (Exhibit USA-23), p. 219) . The Panel agrees that the rule of effectiveness requires that treaty 
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  Members for actions that they "consider necessary for the protection of their essential security 
interests" while also enumerating circumstances and conditions under which that discretion may be 
exercised.540 The right to take action under Article  XXI(b) thus consists of an express provision of 
deference to a Member's consideration that is complemented by subparagraphs that must be given 
meaning and effect according to the ordinary meaning of their terms.541  
7.141.   The Panel finds relevant context for the interpretive issues raised in this dispute in the 
provisions of the GATT  1994 concerning consultation and potential recourse in cases of nullification 
or impairment, as well as the rules and procedures of the DSU, no ting that these agreements are 
both "integral parts of [the WTO] Agreement, binding on all Members".542 Article  XXII of the 
GATT  1994 provides for consultation "with respect to any matter affecting the operation of this 
Agreement" and Article  XXIII of the G ATT 1994 addresses nullification or impairment of "any benefit 
accruing to [a Member] under this Agreement". The DSU elaborates upon these provisions543 and 
establishes the rules and procedures applicable to disputes concerning the covered agreements in 
Appendix  1 of the DSU. Neither the relevant provisions of the GATT  1994 nor the DSU make any 
explicit reference to Article  XXI of the GATT  1994 or the pot ential review of its invocation in dispute 
settlement proceedings.544 In the absence of any special or additional rule of dispute settlement 
concerning Article  XXI(b) of the GATT  1994, any review of its invocation must be carried out in 
accordance with the DSU as a function of the terms of the provision interpreted in accordance with 
customary rules of interpretation of public international law.  
7.142.   The Panel finds further guidance in the object and purpose as expressed in the preamble of 
the WTO  Agreement  "to develop an integrated, more viable and durable multilateral trading system 
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization 
efforts, and all of the results of the Uruguay Round of Multilateral Trade Negotiat ions". In addition, 
the preambles of both the WTO  Agreement  and the GATT  1994 refer to the desire to contribute to 
the objectives of these agreements "by entering into reciprocal and mutually advantageous 
arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the 
elimination of discriminatory treatment in international trade relations".545 In furtherance of these 
objectives, the WTO  Agreement  establishes a legal framework of rights and obligations that includes 
the rules and procedures applicable to disputes concerning the covered agreements in the DSU. The 
DSU "serves to preserve the rights and obligations of Members under the covered agreements"546 
and "[r]ecommendations or rulings made by the DSB shall be aimed at a chieving a satisfactory 
settlement of the matter in accordance with the rights and obligations under [the DSU] and the 
covered agreements".547 The rules and procedures of the DSU are thus intended to maintain the 
balance between the rights and obligations o f the Members548 as embodied in the covered 
agreements and the relevant provisions thereof raised by the parties to proceedings under the DSU.  
 
interpretation neither expand nor diminish the actual terms used. In the present case, the Panel does not 
consider its interpretation to require a ny addition to the terms of Article  XXI(b), as the effectiveness of the 
subparagraphs derives from their existing terms read within the overall structure of the provision. (See 
United  States ' response to Panel question No.  36, paras.  133-134 (arguing that the subparagraphs would 
require additional terms at the beginning of the subparagraphs to establish their separation from the relative 
clause beginning with "which it considers")).  
540 The Panel notes that the scope of the circumstances set out in the subpar agraphs does not detract 
from a Member's consideration that action within the scope of the subparagraphs is necessary "for" a specific 
purpose and that the Member's action pertain to "its" interest. (See United  States ' response to Panel question 
No. 36).  
541 In this sense, the United  States ' view that "the subparagraphs guide a Member's exercise of its rights  
under this provision" is compatible with the delimiting function served by the subparagraphs to define the 
circumstances and conditions under which act ion may be taken, "while reserving to the Member the judgment 
whether particular action is necessary to protect its essential security interests".  (United  States ' first written 
submission, para.  34 (emphasis added); see also Response to Panel question No.  35). 
542 Article  II:2 of the WTO  Agreement . 
543 Pursuant to Article  3.2 of the DSU, "Members affirm their adherence to the principles for the 
management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947, and the rules and 
procedures as further elaborated and modified herein."  
544 Appendix  2 of the DSU does not provide any special or additional rules applying to disputes in which 
Article  XXI of the GATT  1994 is invoked.  
545 The preamble of the GATT  1994 refers to "international commerce" instead of "international trade 
relations".  
546 Article  3.2 of the DSU.  
547 Article  3.4 of the DSU.  
548 See Article  3.3 of the DSU.  WT/DS556/R  
 
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  7.143.   The provision of relevance to this dispute, Article  XXI(b) of the GATT  1994, establishes a 
right to take action f or the protection of a Member's essential security interests and explicitly 
enumerates conditions in the subparagraphs that are an integral part of that right. The absence of 
explicit provision or elaboration in Article  XXI(b) of the GATT  1994 as to whethe r and how its 
invocation may be reviewed does not, in itself, preclude or otherwise determine the review of that 
provision in dispute settlement proceedings.549 Rather, the scope and nature of such review derives 
from the terms of Article  XXI(b) of the GATT  1994 and requirements of the DSU established under 
the WTO  Agreement , which acknowledges inter alia  the role of the WTO dispute settlement system 
in "providing security and predictability to the multilateral trading system".550 If Article  XXI(b) of the 
GATT 1994 is raised in dispute settlement proceedings, the DSU requires that it be addressed in 
accordance with the terms of the provision itself and within an objective assessment of the relevant 
measures and claims to make findings that will assist the DSB to make recommendations provided 
for in the covered agreements.  
7.144.   In addition to the relevant text, context, and object and purpose of the covered agreements, 
the parties have referred to various other materials regarding the interpretation of Article  XXI(b ) of 
the GATT  1994. These materials include: (a) negotiating history of Article  XXI of the GATT 1947 and 
preparatory works of the Havana Charter for the International Trade Organization (ITO); (b) internal 
documents of the US delegation to the negotiation of the ITO draft charter and GATT 1947; (c) GATT 
Council Decisions under the GATT 1947; (d) views expressed by GATT contracting parties prior to 
the creation of the WTO; and (e) negotiating history of the Uruguay Round. Both parties contend 
that these mate rials provide support for their primary arguments on the terms of Article  XXI(b) of 
the GATT  1994 and the rule of interpretation in Article  31(1) of the Vienna  Convention .551 In 
Appendix  B to this Report, the Panel addresses the parties' arguments on the re levance of these 
materials to the interpretation of Article  XXI(b) of the GATT  1994.  
7.145.   As detailed in Appendix  B, these materials do not provide clear guidance regarding the 
contested issues in this dispute, particularly concerning the scope and nature of the review of a 
Member's invocation of Article  XXI(b) of the GATT  1994 in proceedings under the DSU. In addition 
to questions on the precise legal status of these materials for purposes of treaty interpretation, the 
Panel does not find any clear indication in these materials of the "self -judging nature" or "non -
justiciability" of Article  XXI(b) of the GATT  1994 as contended by the United  States .552 Rather, the 
Panel finds these materials to support the general conclusion that the terms of Article  XXI(b) of the 
GATT  1994 establish a right to take action for the protection of essential security interests in the 
conditions and circumstances described in the three subparagraphs.  
7.146.   In conclusion, the entirety of Article  XXI(b) of the GATT  1994 is to be giv en meaning and 
effect in a manner that preserves the right and discretion of a Member to take action it considers 
necessary for the protection of its essential security interests under the conditions and circumstances 
described in subparagraphs (i) to (iii ). The Panel does not consider that Article  XXI(b) of the 
GATT  1994 is "self -judging" or "non -justiciable" in the sense argued by the United  States , nor that 
the provision contains a "single relative clause" that wholly reserves the conditions and 
circumst ances of the subparagraphs to the judgment of the invoking Member. In light of this 
conclusion and in accordance with relevant requirements of the DSU, the Panel turns to assess the 
United  States ' invocation of Article  XXI(b) of the GATT  1994 in relation t o the measures at issue.  
7.9.3   Assessment  of the measures at issue  
7.147.   The Panel will assess whether the measures found to be inconsistent with Articles I:1, II:1, 
and XI:1 of the GATT  1994 were taken under the conditions and circumstances described in the 
subparagr aphs of Article  XXI(b) of the GATT  1994.553  
 
549 The Panel notes that the invocation of Article  XX of the GATT  1994 titled "General Exceptions" has 
been reviewed in WTO dispute settlement proceedings notwithstanding the absence of an explicit provision in 
Article  XX on whether and how its invocation may  be reviewed.  
550 Article  3.2 of the DSU.  
551 Switzerland's response to Panel question No.  56; United  States ' response to Panel question No.  56. 
552 See United  States ' first written submission , paras.  47, 56, and 106 . 
553 In light of the Panel's conclusion on the interpretation of Article  XXI(b) and the arguments of the 
parties in this dispute, the Panel considers it appropriate to focus its assessment of the measures at issue on 
subparagraph (iii) and whether the measures were "taken in time of war or other emerge ncy in international 
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  7.148.   As an initial matter, the Panel notes the objections by the complainant to the manner and 
timeliness of the United  States ' defence under Article  XXI(b)(iii), including concerns regarding due 
process and the Panel 's independent assessment of the evidence and arguments on the record.554 
The Panel considers that the parties' due process rights have been fully maintained in these 
proceedings, during which the Panel has endeavoured to provide ample time and opportunity to 
address any evidence or arguments raised by the other party.555 Moreover, the Panel has engaged 
with such evidence and arguments in written questions and substantive meetings in order to fulfil 
its mandate under the DSU to make an objective assessment of  the matter referred to the DSB and 
to make such findings as will assist the DSB in making the recommendations or in giving the rulings 
provided for in the covered agreements.556  
7.149.   The United  States  has presented its specific arguments on the challenged meas ures subject 
to its interpretive argument that Article  XXI(b) is entirely "self -judging" and imposes no requirement 
to explain or identify a relevant circumstance in subparagraphs (i)  to (iii).557 Although the 
United  States  has focused its arguments on the interpretation of Article  XXI(b) and the discretion 
accorded by its terms to Members, it has also submitted an extensive record of material relating to 
the measures at issue. Of particular note in this context are the Stee l and Aluminium Reports of the 
USDOC and Presidential Proclamations setting out the legal basis under Section  232 for taking action 
on steel and aluminium products. As described below, the United  States  has also elaborated its 
position throughout the cours e of the proceedings concerning the measures at issue and, in 
particular, the existence of an "emergency in international relations" within the meaning of 
Article  XXI(b)(iii) "in time of" which the measures were taken.  
7.150.   The United  States ' first written submission focused on the argument that Article  XXI of the 
GATT  1994 is "self -judging" as a defence against WTO -inconsistencies and that its invocation by a 
Member is "non -justiciable" in WTO dispute settlement proceedings. Following the first subs tantive 
meeting, the United  States  argued that "publicly available information" concerning its measures 
"could be understood to relate most naturally to the circumstance described in Article  XXI(b)(iii)".558 
At the same time, the United  States  maintained it s interpretive view that it is not necessary under 
Article  XXI for any Member to provide details relating to its invocation of the exception, nor "to 
identify the relevant subparagraph ending to that provision that an invoking Member may consider 
most rele vant".559  
7.151.   The United  States  subsequently elaborated its arguments regarding the measures at issue 
based on its interpretation of an "other emergency in international relations" as meaning "a situation 
of danger or conflict, concerning political or economic  contact occurring between nations, which 
arises unexpectedly and requires urgent attention".560 In particular, the United  States  argued that 
"the extensive findings in the steel and aluminum reports are consistent with the United  States  
 
relations". The Panel notes that previous panels have assessed measures under Security Exceptions for "action 
which [a Member] considers necessary for the protection of its essential security interests" beginning with the 
relevant subp aragraph of the provision at issue. (See Panel  Report s, Russa – Traffic in Transit , paras.  7.108 -
7.109; Saudi Arabia – IPRs; para.  7.242).  
554 See Switzerland's response to Panel question No.  71; comments after the second meeting of the 
Panel , paras.  55-57. 
555 For example, at the closing of the second substantive meeting, the Panel indicated that the parties 
would have an opportunity to provide written comments on any issue raised during the meeting, including 
arguments on Article  XXI(b)(iii) made durin g closing statements. The parties were accordingly invited to 
provide written comments following the second substantive meeting and given an opportunity to make any 
additional comments in response. The Panel considers the procedural arrangements in this di spute, including 
the overall time given to the parties for written submissions and comments, to have afforded the parties 
adequate opportunity to be heard and to respond to arguments made by the other party as required for the 
protection of their due proce ss rights. (See Appellate  Body Report, Thailand – Cigarettes (Philippines) , 
para. 147). 
556 See e.g. Appellate  Body Reports, US – Shrimp , para.  106; EC and certain member states – Large 
Civil Aircraft , para.  1317; Australia – Tobacco Plain Packaging , para.  6.244.  
557 See e.g. United  States ' response to Panel question No.  92. 
558 United  States ' second written submission, para.  27.  
559 United  States ' second written submission, para.  26. According to the United  States , its invocation of 
Article  XXI(b) indicated its consideration "that any or all of the three circumstances described in the 
subparagraphs are present", and whatever burden of proof attached to Article  XXI(b) "is discharged once the 
Member indicates, in the context of dispute settlement, that it has made such a determination" that it 
"consider[s] one or more of the circumstances set forth in Article  XXI(b) to be present". (United  States ' 
response to Panel question Nos. 50 and 52. See also United  States ' second written submission , para.  45). 
560 See United  States ' response to Panel question No.  92.  WT/DS556/R  
 
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  considering the mea sures at issue to be taken 'in time of war or other emergency in international 
relations'."561 The United  States  cited various findings in the Steel and Aluminium Reports and 
argued that "the findings cited above relating to the threatened impairment of nat ional security by 
steel and aluminum imports, and the global crisis circumstances under which such importations were 
occurring, are consistent with the United  States  considering that an 'other emergency in 
international relations' exists – that is, a situa tion of danger or conflict, concerning political or 
economic contact occurring between nations, which arises unexpectedly and requires urgent 
attention."562 
7.152.   In its closing statement at the second substantive meeting, the United  States  argued that, 
"even on the complainant's understanding of Article  XXI(b) as not self-judging, … [t]he record before 
the Panel demonstrates that the United  States  considers the measures at issue to be necessary for 
the protection of its essential security interests and taken 'in time of war or other emergency in 
international relations'."563 The United  States  referred to findings in the Steel Report on "whether an 
emergency related to steel excess capacity exists" to comment that, "in 2017, it emerged that global 
efforts to address  the crises would be insufficient. While the DOC steel report noted that the excess 
capacity crisis is a global problem that steel -producing nations have committed to 'work together on 
possible solutions,' the report observed the limits of the global effor ts, including the work of the 
Global Forum on Steel Excess Capacity."564 The United  States  argued that "what the DOC steel report 
conveys is that the United  States  was at a crucial point [and] that without immediate action, the 
steel industry could suffer d amages that may be difficult to reverse and reach a point where it cannot 
maintain or increase production to address national emergencies."565 The United  States  additionally 
argued that "[a]n industry facing 'fundamental changes' brought on by a 'production  revolution' can 
certainly lead to unexpected developments, particularly when that industry is facing an 'acute' 
situation of global excess capacity that is the highest in the industry's history."566  
7.153.   The Panel notes that the United  States  has referred to the appendi x in the Steel Report 
concerning global excess capacity in connection with the existence of an "emergency in international 
relations" under Article  XXI(b)(iii).567 In addition, the United  States  has referred to the G20 Global 
Steel Forum Report of  2017 noting that excess capacity is a "global challenge" which risks "the 
viability of an industry that produces a material which is vital for the functioning of economies and 
societies".568 The G20 Global Steel Forum Report of 2017 cited by the United  States also describes 
the situation of excess steelmaking capacity as "particularly acute since 2015" and addresses the 
outlook of global steelmaking capacity.569 Further, the United  States  refers to remarks of the EU 
Commissioner for Trade at the OECD High -Level Symposium on Steel expressing concerns on steel 
overcapacity.570  
7.154.   The Panel will assess the evidence and arguments submitted in this dispute in accordance 
with the requirement under Article  11 of the DSU to make "an objective assessment of the facts of 
the case and the applicability of and conformity with the relevant covered agreements". In addition 
to the interpretive conclusions reached above571, the Panel's assessment will be based  on an 
 
561 United  States ' response to Panel question No.  92, para.  43. 
562 United  States ' response to Panel question No.  92, para.  50. 
563 United  States ' closing statement at the second meeting, para.  45. (emphasi s original)  
564 United  States ' closing statement at the second meeting, paras.  48-49. 
565 United  States ' closing statement at the second meeting, para.  51.  
566 United  States ' closing statement at the second meeting, para.  52. The United  States  cited the 
follow ing passages in G20, Global Forum on Steel Excess Capacity Report  (30 November  2017), (Exhibit USA -
72): "The situation of excess steelmaking capacity 'has become particularly acute since 2015'; 'the steel 
industry will have to adjust in response to fundame ntal changes in economic activity brought on by the 'next 
production revolution.'" (Ibid. p. 2); "In 2016, the global surplus in steelmaking capacity is estimated to have 
reached around 737  million  metric tonnes, the highest level seen in the history of th e steel industry. If the 
announced capacity expansions until 2020 take place, this excess capacity will further increase". (Ibid. p. 4).  
567 See United  States ' response to Panel question No.  92, para.  46 (referring to Steel Report , (Exhibit 
CHE-2 and USA -7), Appendix  L: "Global Excess Capacity in Steel Production" and its commentary on OECD 
analyses and the policy recommendations from the Global Forum on Steel Excess Capacity).  
568 United  States ' opening statement of the first meeting of the Panel, para.  57.  
569 See G20, Global Forum on Steel Excess Capacity Report  (30 November  2017), ( Exhibit USA -72); 
United  States ' closing statement at the second meeting of the Panel, para.  52. 
570 See Remarks dated 18  April 2016 of C. Malmström, "Way ahead for the global s teel industry", OECD 
High-Level Symposium on Steel, ( Exhibit USA -240); United  States ' closing statement at the second meeting of 
the Panel, para.  53. 
571 See section 7.9.2 above.  WT/DS556/R  
 
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  interpretation of the terms of subparagraph (iii) of Article  XXI(b) in accordance with Article  3.2 of 
the DSU and customary rules of interpretation of public international law. Based on this 
interpretation as well as the evidence and arguments submi tted by the parties, the Panel will assess 
whether the "action[s] which [the United  States ] considers necessary for the protection of its 
essential security interests" were taken under the circumstances described in the subparagraphs of 
Article  XXI(b)(iii)  of the GATT  1994. 
7.155.   Under subparagraph (iii) of Article  XXI(b), a Member may take action which it considers 
necessary for the protection of its essential security interests "in time of war or other emergency in 
international relations". Dictionary definitio ns of the term "emergency" include "[a] situation, esp. 
of danger or conflict, that arises unexpectedly and requires urgent attention", "a condition requiring 
immediate treatment", or a "pressing need".572 The relevant emergency within the meaning of 
subpar agraph (iii) must be "in international relations". The term "relations" may be defined as "[t]he 
various ways by which a country, State, etc., maintains political or economic contact with 
another"573, while the term "international" may be defined as "[e]xis ting, occurring, or carried on 
between nations; pertaining to relations, communications, travel, etc., between nations".574 The 
phrase "international relations" may thus be understood to mean interactions between nations or 
national governments.575 The terms  of Article  XXI(b)(iii) appear to distinguish the relevant 
emergency under that subparagraph from an emergency in purely domestic or national affairs and 
indicate the "international" character of the emergency in time of which Members are not prevented 
from taking action under Article  XXI(b).  
7.156.   The term "war" precedes the phrase "or other emergency in international relations" in 
subparagraph (iii) of Article  XXI(b) and provides immediate context for its interpretation. Dictionary 
definitions of "war" include  "[h]ostile contention by means of armed forces, carried on between 
nations, states, or rulers, or between parties in the same nation or state; the employment of armed 
forces against a foreign power, or against an opposing party in the state".576 Based on i ts ordinary 
meaning, "war" involves a state of conflict characteri zed by the use of force. This is further confirmed 
by the French and Spanish language versions of Article  XXI(b)(iii), where the terms " guerre " and 
"guerra " similarly signify armed struggles  or outbreak of hostilities.577  
7.157.   The Panel finds that the reference to "war" informs the meaning of "emergency in 
international relations" as part of the circumstances "in time of" which a Member may act under 
Article  XXI(b) for the protection of its essential security interests. In particular, the Panel considers 
that an "emergency in international relations" within the meaning of Article  XXI(b)(iii) must be, if 
not equally grave or severe, at least comparable in its gravity or severity to a "war" in terms of its 
impact on international relations. This understanding is supported by the French and Spanish 
language versions of Article  XXI(b)(iii) of the GATT  1994, where the terms corresponding to 
"emergency in international relations" are " grave tension internationale " and " grave tensión 
internacional " respectively. The term " grave " in these languages may be understood as referring to 
 
572 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 814. See also 
Switzerland's response to Panel question No.  51; second written submission, para.  277; and United  States ' 
response to Panel question No.  51 (referring to The New Shorter Oxford English Dictionary , 4th edn, L. Brown 
(ed.) (Clarendon Press, 1993), ( Exhibit USA -86), p. 806).  
573 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 2520. See also 
United  States ' response to Panel question No.  92 (referring to The New Shorter Oxford English Dictionary , 4th 
edn, L. Brown (ed.) (Clarendon Press, 1993), ( Exhibit USA -222), p. 2534). 
574 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 1404. See also 
United  States ' response to Panel question No.  92 (referring to The New Shorter Oxford English Dictionary , 4th 
edn, L. Brown (ed.)  (Clarendon Press, 1993), ( Exhibit USA -222), p. 1397).  
575 See also Oxford English Dictionary Online (Oxford University Press, March 2022) (defining 
"international relations" as "relations between nations, national governments, international organizations")  and 
Black's Law Dictionary, 9th edn, B.A. Garner (ed.) (West Group 2009), p. 893 (defining "international relations" 
as "[g]lobal political interaction, primarily among sovereign nations").  
576 Oxford English Dictionary Online (Oxford University Press, Marc h 2022).  
577 See Le Petit Robert Dictionnaire de la Langue Française (2000), p. 1183 (defining " guerre " as " [l]utte 
armée entre groupes sociaux " (armed struggle between social groups) or " [l]es questions militaires " (military 
matters)); Diccionario de la Len gua Española , 22nd Edition  (Real Academia Española, 2001), p. 795 (defining 
"guerra " as " [d]esavenencia y rompimiento de la paz entre dos o más potencias " (disagreement and breach of 
peace between two or more powers) or " [l]ucha  armada entre dos o más naciones o entre bandos de una 
misma nación " (armed struggle between two or more nations or between sides of the same nation)).  WT/DS556/R  
 
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  international tensions that are of a critical or serious nature in terms of their impact on the conduct 
of international r elations.  
7.158.   Further, under subparagraph (iii) of Article  XXI(b), action for the protection of essential 
security interests must be "taken in time of" an emergency in international relations. As discussed 
above, the Panel understands these opening terms of su bparagraph (iii) to qualify and describe the 
"action" referred to in Article  XXI(b). The phrase "taken in time of" in subparagraph (iii) describes 
the temporal link between the action taken by a Member under Article  XXI(b) and the "war or other 
emergency i n international relations" in subparagraph (iii) of that Article.  
7.159.   The Panel also considers relevant the context provided by the subparagraphs of 
Article  XXI(b) in conjunction with the terms used in paragraph (b) of Article  XXI, which concerns 
actions take n by a Member for the protection of its "essential security interests". As discussed above, 
the description of these security interests as "essential" indicates the heightened significance of the 
security interests that Members are not prevented from takin g action to protect pursuant to 
Article  XXI(b). Actions taken by a Member for the protection of its essential security interests may 
concern "fissionable materials" under subparagraph (i), "traffic" involving certain military interests 
under subparagraph ( ii), and "war or other emergency in international relations" under subparagraph 
(iii). The Panel is guided by the delimiting function of the subparagraphs in construing subparagraph 
(iii) to refer to circumstances of a certain gravity or severity in terms of their impact on the conduct 
of international relations, as part of the balance of rights and obligations reflected in the ordinary 
meaning of the terms of Article  XXI(b), interpreted in their context and in light of the object and 
purpose of the GATT  1994 and WTO  Agreement .578  
7.160.   With respect to the measures at issue, the Panel notes that the United  States  has referred 
in its arguments regarding Article  XXI(b)(iii) to factors considered by the USDOC  in the Steel and 
Aluminium Reports. These Reports reflect the domestic legislative basis and statutory terms of 
Section  232, particularly the factors to be considered in investigations by the USDOC and the 
reference to importation "in such quantities or u nder such circumstances" that the imports "threaten 
to impair the national security".579 The Panel notes that various factors relied upon by US authorities 
are treated cumulatively in support of the determination to act under Section  232. Specifically, the 
Steel and Aluminium Reports identify "three factors" as the basis for finding with respect to steel 
and aluminium that "weakening of our internal economy may impair the national security", namely: 
(a) displacement of domestic steel/aluminium by excessive i mports; (b) the consequent adverse 
impact on the economic welfare of the domestic steel/aluminium industry; and (c) the global excess 
capacity in steel and aluminium.580 The Panel notes that the first two factors focus predominantly 
on developments relating  to the domestic situation of steel and aluminium industries in the 
United  States581, while the third focuses on a global aspect of the situation.  
7.161.   The analysis and conclusions of the USDOC in the Steel and Aluminium Reports do not 
purport to identify or ad dress the existence of an "emergency in international relations" within the 
meaning of Article  XXI(b)(iii) of the GATT  1994. The determinations of US domestic authorities under 
Section  232 relate to a different legal standard and basis under US municipal l aw than the provisions 
of the covered agreements within the Panel's mandate under the DSU. Accordingly, the factors relied 
upon by the USDOC and conclusions in the Steel and Aluminium Reports are distinct from, and 
cannot be directly transposed to, the ter ms of Article  XXI(b)(iii) of the GATT  1994 and the objective 
assessment required under Article  11 of the DSU. Therefore, the factors treated cumulatively by US 
domestic authorities under Section  232 may not be regarded as having commensurate relevance or 
weight in the Panel's objective assessment as to whether the measures were taken "in time of war 
or other emergency in international relations" under Article  XXI(b)(iii) of the GATT  1994. The 
assessment of the Panel in this dispute concerns the United  State s' specific arguments in connection 
with the existence of an "emergency in international relations" under Article  XXI(b)(iii) and, in 
 
578 See paras.  7.142  and 7.143  above.  
579 The USDOC noted the non -exhaustive list of factors to be considered in connectio n with "national 
security" under Section  232 and the list of factors for the US Secretary of Commerce to consider in determining 
if imports "threaten to impair the national security". (See Steel Report , (Exhibit CHE -2 and USA -7), pp. 13 -15; 
Aluminium Repor t, (Exhibit CHE -5 and USA -8), pp. 12 -14 (referring to Section  232(d))).  
580 Steel Report , (Exhibit CHE -2 and USA -7), p. 16; Aluminium Report , (Exhibit CHE -5 and USA -8), p. 
15.  
581 See e.g. Steel Report , (Exhibit CHE -2 and USA -7), sections V.B.4 -10 and V.C; A luminium Report , 
(Exhibit CHE -5 and USA -8), sections VI.H and VI.C.  WT/DS556/R  
 
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  particular, its references to an international situation of global excess capacity in steel and 
aluminium.582  
7.162.   The Panel ob serves that, in its arguments under Article  XXI(b), the United  States  refers to 
this international situation – i.e. global excess capacity in steel and aluminium – in connection with 
the impact of imports on domestic producers of steel and aluminium, as re flected in the conclusions 
of the USDOC in the Steel and Aluminium Reports.583 The United  States  refers to factors addressed 
by the USDOC in the Steel and Aluminium Reports as evidence that it "considers" the measures at 
issue to have been "taken in time" o f an "emergency in international relations" within the meaning 
of Article  XXI(b)(iii). In this regard, the Panel notes the United  States ' argument that "the extensive 
findings in the steel and aluminum reports are consistent with the United  States  consider ing the 
measures at issue to be taken 'in time of war or other emergency in international relations'."584 The 
United  States  additionally argues that "the Panel should find [that] the United  States  has provided 
information that it considers the measure neces sary for the protection of its essential security 
interests … [and] that the United  States  has provided information that it considers the measure 
'taken in time of war or other emergency in international relations', the circumstance in 
subparagraph ending (iii)".585 
7.163.   The Panel recalls its conclusion that the terms "which it considers" in Article  XXI(b) do not 
qualify the subparagraphs to render them "self -judging" as argued by the United  States .586 While 
the United  States  contends that it has "provided informa tion that it considers" the measures at issue 
to fall under Article  XXI(b)(iii), the review of such information in accordance with the DSU requires 
an objective ascertainment of factors relating to the relevant "emergency in international relations" 
under subparagraph (iii), as distinguished from factors pertaining to what is reserved to a Member's 
consideration under paragraph (b) of Article  XXI. The United  States  refers to factors that were 
cumulatively considered by domestic authorities in support of the  determination to act under 
Section  232. As noted, these factors concern both the domestic situation of steel and aluminium 
industries as well as global excess capacity.  
7.164.   In the Panel's view, the factors raised by the United  States  on the impact of imports  on 
domestic producers of steel and aluminium, including the consideration of US domestic authorities 
of "national security" under Section  232, pertain more to the "action which [the United  States ] 
considers necessary for the protection of its essential security interests" under paragraph (b) of 
Article  XXI.587 However, in accordance with the ordinary meaning of its terms, subparagraph (iii) 
requires a distinct inquiry as to whether the actions were taken in time of an "emergency in 
international relations" based on an objective assessment of relevant evidence and arguments.  
7.165.   In this connection, the Panel notes the evidence submitted by the United  States  of 
international concerns regarding global exces s capacity in steel and aluminium, including the 
discussion of such concerns in the Steel and Aluminium Reports. The statements at the international 
level referred to by the United  States  indicate that the issue of global excess capacity in steel and 
alumi nium has been a topic of high -level discussion and expressions of concern in various 
international fora.588 As reflected in information provided by the United  States  in this dispute, the 
discussion of global excess capacity focuses on specific sectors and i s evidence of the fact that the 
issue has been raised as a matter of international attention within the conduct of international 
relations of various countries. Notwithstanding such evidence of international engagement, the Panel 
 
582 United  States ' response to Panel question No.  92, para.  46 (referring to Steel Report , (Exhibit CHE -2 
and USA -7), Appendix  L: "Global Excess Capacity in Steel Production" and its commentary on OECD analyses 
and the policy recommendations from the Global Forum on Steel Excess Capacity); see also United States' 
closing statement at the second meeting, paras.  48-49. 
583 See Steel Report , (Exhibit CHE -2 and USA -7), section  VI; Aluminium Report , (Exhibit CHE -5 and 
USA-8), section  VII. 
584 United  States ' response to Panel question No.  92, para.  43. 
585 United  States ' closing statement at the second meeting, para.  46. 
586 See para.  7.146  above.  
587 See e.g. United  States ' closing statement at the second meeting, para.  18. (stating that "the 
measures challenged were on steel and aluminum (key sources for military vehicles, weapons, and systems for 
critical nat ional infrastructure) that the United  States  has taken for national security purposes" and referring to 
"an industry that is vital to our national security and whose decline threatens to impair our national security"); 
response to Panel question No.  92(a). See also paras.  7.101 , 7.106 -7.109 , and 7.116 -7.117 above.  
588 See e.g. G20, Global Forum on Steel Excess Capacity Report  (30 November  2017), (Exhibit USA -72); 
Remarks dated 18  April 2016 of C. Malmström, "Way ahead for the global steel industry", OECD High -Level 
Symposium on Steel, ( Exhibit USA -240).  WT/DS556/R  
 
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  recalls that an "emergency  in international relations" under Article  XXI(b)(iii) refers to situations of 
a certain gravity or severity and international tensions that are of a critical or serious nature in terms 
of their impact on the conduct of international relations.  
7.166.   Having care fully reviewed the relevant evidence and arguments submitted in this dispute, 
and particularly those submitted by the United  States  in relation to global excess capacity, the Panel 
is not persuaded that the situation to which the United  States  refers rises  to the gravity or severity 
of tensions on the international plane so as to constitute an "emergency in international relations" 
during which a Member may act under Article  XXI(b)(iii).589 For example, the G20 Global Steel Forum 
Report "focuses on the steel  sector and provides concrete policy solutions to reduce steel excess 
capacity".590 In referring to excess steelmaking capacity as "a global challenge that has become 
particularly acute since 2015", the report highlights various efforts within the Global St eel Forum in 
light of trends in the sector as part of "[g]lobal cooperation to find solutions to tackle excess capacity 
in the steel market".591 Such evidence submitted by the United  States  in this dispute reflects 
international concern expressed in the con text of cooperative efforts to address excess capacity in 
a specific sector.592 In the Panel's view, however, the gravity or severity of an "emergency in 
international relations" within the meaning of Article  XXI(b)(iii), particularly regarding the impact o n 
international relations of situations falling under that provision, has not been established based on 
the evidence and arguments submitted in this dispute. In reaching this conclusion, the Panel is 
mindful of its mandate in this dispute593 as well as the balance of rights and obligations reflected in 
the terms of Article  XXI of the GATT  1994 interpreted in accordance with the DSU.   
7.9.4   Conclusion  
7.167.   In conclusion, the Panel does not find , based on the evidence and arguments submitted in 
this dispute, that the measures at issue were "taken in time of war or other emergency in 
international relations" within the meaning of Article  XXI(b)(iii) of the GATT  1994. Therefore, the 
Panel finds that the inconsistencies of the measures at issue with Articles I:1 , II:1, and XI:1  of the 
GATT  1994 are not justified under Article  XXI(b)(iii) of the GATT  1994. 
8  CONCLUSIONS AND RECOMMENDATION  
8.1.  For the reasons set forth in this Report, the Panel concludes as follows:  
a. Regarding Switzerland's  claims under Article  II of the GATT  1994: 
i. the additional duties of 25% on steel products and 10% on aluminium products do not 
accord the treatment provided for in the United  States ' Schedule, contrary to 
Article II:1(b) and Article  II:1(a) of the GATT  1994; 
 
589 The Panel notes in this regard that previous panels have found situations to constitute an 
"emergency in international relations" under Security Exceptions based on the particular e vidence and 
circumstances at issue in those disputes. In a dispute under Article  XXI(b)(iii) of the GATT  1994, such evidence 
included international recognition of the degree of deterioration of relations between two Members and a 
situation involving armed conflict during a certain time period. (See Panel  Report , Russa – Traffic in Transit , 
paras.  7.122 -7.123). In another dispute under Article  73(b)(iii) of the TRIPS  Agreement (the corresponding 
provision to Article  XXI(b)(iii) of the GATT  1994 in the TRIPS  Agreement ), such evidence included  the 
severance of all diplomatic, consular, and economic relations between two Members. (See Panel  Report , Saudi 
Arabia – IPRs; paras.  7.257 -7.266).  
590 G20, Global Forum on Steel Excess Capacity Report  (30 November  2017), ( Exhibit USA -72), p. 2.  
591 G20, Global Forum on Steel Excess Capacity Report  (30 November  2017), ( Exhibit  USA-72), pp. 2 -3. 
The report describes the formal establishment of the Global Forum on Steel Excess Capacity and notes that 
"the OECD acts as the facilitator to the Global Forum". ( Ibid. para. 6). The report further describes efforts to 
develop an "information -sharing mechanism" in a "tangible process [that] contributes to the collective trust 
and confidence that are necessary to find collective sol utions to the challenge of excess capacity". ( Ibid. 
paras.  7-8). 
592 The United  States  refers to other evidence that similarly reflects expressions of concern in the 
context of specific international initiatives. For example, the United  States  refers to rema rks by the EU 
Commissioner for Trade at the OECD High -Level Symposium on Steel expressing concerns on steel 
overcapacity while noting ongoing interventions as well as recommendations for international cooperation. 
(Remarks dated 18  April 2016 of C. Malmstr öm, "Way ahead for the global steel industry", OECD High -Level 
Symposium on Steel, (Exhibit USA -240)).  
593 See section 7.1 above.  WT/DS556/R  
 
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  ii. the additional duty of 50% on steel products from Türkiye  does not accord the 
treatment provided for in the United  States ' Schedule, contrary to Article  II:1(b) and 
Article  II:1(a) of the GATT  1994; and 
iii. the additional duties of 25% on derivative steel products and 10% on derivative 
aluminium products do not accord the treatment provided for in the United  States ' 
Schedule, contrary to Article  II:1(b) and Article  II:1(a) of the GATT  1994. 
b. Regarding Switzerland 's claims under Article  I of the GATT  1994: 
i. the country exemptions for steel and aluminium products confer an advantage to 
products from Australia, Argentina, Brazil, and the Republic of Korea  that has not been 
accorded immediately and unconditionally to lik e products from all other Members, in 
a manner inconsistent with Article  I:1 of the GATT  1994; 
ii. the country exemptions for steel and aluminium products confer an advantage to 
products from Canada and Mexico that has not been accorded immediately and 
unconditionally to like products from all other Members, in a manner inconsistent with 
Article  I:1 of the GATT  1994; and 
iii. the country exemptions for derivative steel and aluminium products confer an 
advantage to products from Australia, Argentina, Brazil, the Republic of Korea , 
Canada, and Mexico that has not been accorded immediately and unconditionally to 
like products from all other Members, in a manner inconsistent with Article  I:1 of the 
GATT  1994. 
c. Regarding Switzerland 's claims under Article  XI:1 of th e GATT  1994, by imposing import 
quotas on steel and aluminium products from  Argentina, Brazil , and the Republic of Korea , 
the United  States  has instituted prohibitions or restrictions other than duties, taxes or 
other charges on the importation of those pr oducts of the territory of those Members , 
inconsistently  with Article  XI:1 of the GATT  1994. 
d. Regarding Switzerland 's claims under Article  X of the GATT  1994, the Panel does not 
consider it necessary to make findings on Switzerland 's claims relating to the 
administration of the process es for excluding certain countries or products from measures 
that have already been found inconsistent with other obligations under the GATT  1994. 
The Panel therefore declines to make findings regarding the claims under Art icle X:3(a) of 
the GATT  1994.  
e. Regarding Switzerland's  claims under Article  XIX of the GATT  1994 and the Agreement on 
Safeguards,  the Panel finds that the relevant measures at issue were sought, taken, or 
maintained pursuant to a provision of the GATT  1994 other than Article  XIX, namely  
Article  XXI of the GATT  1994, within the meaning of Article  11.1(c) of the Agreement on 
Safeguards. The Panel therefore finds that the Agreement on Safeguards does not apply 
to the measures at issue.  
f. Regarding Article  XXI of  the GATT  1994, the Panel does not find that the measures at issue 
were "taken in time of war or other emergency in international relations" within the 
meaning of Article  XXI(b)(iii) of the GATT  1994. The Panel therefore finds that the 
inconsistencies of t he measures at issue with Articles I:1 , II:1, and XI:1 of the GATT  1994 
are not justified under Article  XXI(b)(iii) of the GATT  1994.  
8.2.  Under Article  3.8 of the DSU , in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. The Panel concludes  that, to the extent that the measures at issue are  
inconsistent with certain provisions of the GATT  1994, they have nullified or impaired benefits 
accruing to Switzerland  under that Agreement.  
8.3.  Pursuant to Article  19.1 of the DSU, the Panel recommends that the United  States  bring its 
WTO-inconsistent measu res into conformity with its obligations under the GATT  1994. 
__________