WT/DS561/R/Add.1  
 
19 Decemb er 2023  
(23-8579) Page: 1/101 
  Original: English  
 
  
TURKEY – ADDITIONAL DUTIES ON CERTAIN PRODUCTS  
FROM THE UNITED STATES  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to E to the Report of the Panel to be found in document 
WT/DS561/R.  
 
 
_______________  
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures Concerning Substantive Meetings with Remote 
Participation  11 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the United States  15 
Annex  B-2 Integrated executive summary of the arguments of Türkiye  36 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of China  52 
Annex  C-2 Integrated executive summary of the arguments of the European Union  56 
Annex  C-3 Integrated executive summary of the arguments of Japan  61 
Annex  C-4 Integrated executive summary of the arguments of  New Zealand  64 
Annex  C-5 Integrated executive summary of the arguments of  Norway  65 
Annex  C-6 Integrated executiv e summary of the arguments of  the Russian Federation  69 
Annex  C-7 Integrated executive summary of the arguments of  Switzerland  73 
Annex  C-8 Integrated executive summary of the arguments of  Ukraine  77 
ANNEX  D 
COMMUNICATION BY THE PANEL  ON REQUESTS FOR ENHANCED  THIRD PARTY RIGHTS  
Contents  Page  
Annex  D-1 Communication by the Panel on requests for enhanced third -party rights  80 
ANNEX  E 
TABLE OF RELEVANT DUTY RATES  
Contents  Page  
Annex  E-1 Table of relevant duty rates  83 
 
 
 
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  ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures Concerning Substantive Meetings with Remote 
Participation  11 
 
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  ANNEX A -1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 5 April  2019 
General  
1. (1) In these proceedings, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU").  In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it  shall be kept 
confidential. Members  shall treat as confidential information  that is submitted to the Panel  
which the submitting Member has  designated as confidential.   
(2) Nothing in the DSU or in these Working Procedures shall preclude a party or third party 
from disclosing statements of i ts own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its written submissions that  could be disclosed to the public.  
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the parties.  
Submissions  
3. (1) Before the first substantive mee ting of the Panel with the parties, each party shall 
submit a  written submission in which it  presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, before  the second substantive meeting of the 
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting  of the Panel with the parties shall do  so in accordance with the timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions during  
the proceeding s, including with respect to requests for preliminary rulings in accordance with 
paragraph  4 below.   
Preliminary rulings  
4. (1) If Turkey  considers that the Panel should make a ruling before the issuance of the 
Report that certain measures or claims in the panel request or the complainant's first written 
submission are not properly before the Panel , the following procedure applies . Exceptions to 
this procedure shall be granted upon a showing of good cause.   
a. Turkey  shall submit any such request for a preliminary ruling at the earliest possible  
opportunity and in any event no later than in its first written submission to the Panel. WT/DS561/R/Add.1  
 
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  The United States shall submit its response to the request before the first substantive 
meeting of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary 
ruling request before, during or after the first substantive meeting , or the Panel may 
defer a  ruling on the issues raised by a preliminary ruling request until it  issues its 
Report to the parties.   
c. If the Panel finds it appropriate to issue a preliminary ruling before  the issuance of its 
Report, the Panel may provide  reasons for the ruling at the time that the ruling is 
made, or subsequently in its Report.  
d. Any req uest for such a preliminary ruling by the respondent before  the first meeting, 
and any subsequent submissions of the parties in relation thereto before  the first 
meeting, shall be  served on all third parties. The Panel may provide all third parties 
with an  opportunity to provide comments on any such request, either in their 
submissions as provided for in the timetable or separately. Any preliminary ruling 
issued by the Panel before  the first substantive meeting on whether certain measures 
or claims are prop erly before the Panel shall be communicated to all third parties.   
(2) This procedure is without prejudice to the parties' right to request other types of 
preliminary or procedural rulings during  the proceeding s, and to the procedures that the Panel 
may fo llow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) If the original language of an exhibit  or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working language of the submission . The Pa nel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly  in writing, 
preferably no later than the next submission  or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection sha ll be accompanied 
by an explanation of the grounds for the  objection and an  alternative translation. The Panel 
may grant reasonable extensions of time for the submission of an alternative translation upon 
a showing of good cause.   
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submis sions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. Exhibits submitted by the United States should be numbered USA-1, USA-2, etc. 
Exhibits submitted by Turkey  should be numbered TUR -1, TUR-2, etc. If the last exhibit in 
connection with the first submission was numbered USA-5, the first exhibit in connection with 
the next submission thus would be numbered USA-6.  
(2) Each party shall provide a n updated  list of exhibits  (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other p arty, it should explain why it is submitting that document again.  WT/DS561/R/Add.1  
 
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  (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cited content of the website shall b e 
provided in the form of an exhibit.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissio ns (electronic copy 
provided) . 
Questions  
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written  questions , or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.  
b. The Panel may put questions to the parties and third parties orally during  a meeting, 
and in writing fo llowing the meeting, as provided for in paragraph s 15 and 21  below.   
Substantive meetings  
10. The Panel shall meet in closed session.  
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall  have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DS U and these Working 
Procedures, particularly with regard to the confidentiality of the proceedings and the 
submissions of the parties and third parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5:00 p.m. (Geneva time ) two (2)  working days before  the first day of each meeting with the Panel.   
14. A request for interpretation by any party should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to e nsure availability of interpreters.  
15. The substantive meetings of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite the United States to make an opening statement to present its 
case first. Subsequently, the Panel shall invite Turkey to present its point of view. In the 
second substantive meeting, Turkey shall be given the opportunity to make its statement first.  
b. Before each party takes the floor, it shall provide the Panel and other participants at 
the meeting with a provisional written version of its statement. If interpretation is needed, 
each party shall provide additional copies for the interpreters.  
c. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
party is invited to limit the duration  of its opening statement to approximately one (1) hour . 
If either party considers that it requires more time for its opening statement, it shou ld inform 
the Panel and the other party at least five (5)  days prior to the meeting, together with  an 
estimate of the expected duration  of its statement. The Panel will accord equal time to the 
other party.  WT/DS561/R/Add.1  
 
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  d. After the conclusion of the opening statement s, the Panel shall give each party the 
opportunity to make comments or ask the other party questions.  
e. The Panel may subsequently pose questions to the parties.  
f. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the United States presenting its statement first. Before 
each party takes the floor, it shall provide the Panel and other participants at the meeting with 
a provisional written version of its closing statement , if ava ilable. 
g. Following the meeting:  
i. Each party shall submit a final written version of its opening statement no later than 
5:00 p.m. (Geneva time) on the second working day following the meeting.  At the 
same time, each party should also submit a final written version of any prepared 
closing statement that it delivered at the meeting.   
ii. Each party shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the other party to which it wishes to recei ve 
a response in writing.  
iii. The Panel shall send in writing, within the timeframe established by the Panel before  
the end of the meeting , any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the time -frame established by the Panel 
before  the end of the meeting . 
Third -party session  
16. The third parties shall be present at the meetings only when invited by th e Panel to appear 
before it.  
17. (1) Each third party has the right to determine the composition of its own delegation  when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that  each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceedings and the 
submissions of the parties and third parties.  
18. A request for interpretation by any t hird party should be made to the Panel as early as 
possible, preferably upon receiving the Working Procedures and timetable for the proceeding s, to 
allow sufficient time to ensure availability of interpreters.  
19. (1) Each third party may present its views  orally during a session of the first substantive 
meeting with the parties set aside for that purpose.  
(2) Each third party shall indicate to the Panel whether it intends to make an oral statement 
during the third -party session,  along with the list of mem bers of its delegation, in advance of 
this session and no later than 5:00  p.m. (Geneva time) two (2) working day s before  the third -
party session of the meeting with the Panel.   
20. The third -party session shall be conducted as follows:  
a. All parties and t hird parties may be present during the entirety of this session.  
b. The Panel shall first hear the oral statements of the third parties. Each third party 
making an oral statement at the third -party session shall provide the Panel and other WT/DS561/R/Add.1  
 
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  participants wi th a provisional written version of its statement before it takes the floor . If 
interpretation of a third party's oral statement is needed, that third party shall provide 
additional copies for the interpreters.   
c. Each third party should limit the duratio n of its  statement to 15 minutes, and avoid 
repetition of the arguments already in its submission . If a third party considers that it requires 
more time for its opening statement, it should inform the Panel and the parties at least five 
(5) days before  the meeting, together with an estimate of the expected duration  of its 
statement. The Panel will accord equal time to all third parties for their statements.   
d. After the third parties have made their statements, the parties shall be given the 
opportunit y to pose questions to any third party for clarification on any matter raised in that 
third party's submission or statement.  
e. The Panel may subsequently pose questions to any third party.  
f. Following the third -party session:  
i. Each third party shall submit the final written version of its oral statement, no later 
than 5:00  p.m. (Geneva time) on the second working day following the meeting.  
ii. Each party may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to a third party or parties to which it 
wishes to receive a response in writing.  
iii. The Panel may send in writing, within the timeframe to be established by the Panel 
before  the end of the meeting , any questio ns to a third party or parties to which it 
wishes to receive a response in writing.  
iv. Each third party choosing to do so shall respond in writing to written questions from 
the Panel or a party, within a timeframe established by the Panel before  the end of the 
meeting . 
Descriptive part and executive summaries  
21. The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall consist  of executive summaries provided by the parties and third parties, which  
shall be annexed  as addenda to the report. These executive summaries shall not in any way serve 
as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case.  
22. Each party shall submit a single  integrated e xecutive summar y. The summary shall summarize 
the facts and arguments as presented to the Panel in the party's first and second written 
submission s, its oral statement s, and if possible, its responses to questions following the first and 
second substantive  meeting s. The timing of the submission of the integrated executive summar y 
shall be indicated in the timetable adopted by the Panel.   
23. Each integrated executive summary shall be limited to no more than 30 pages.   
24. The Panel may request the parties a nd third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
25. Each third party shall submit an integrated executive summary of its argu ments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. This 
integrated executive summary may also include a summary of responses to questions, if relevant. 
The executive summary to be provided by e ach third party shall not exceed six  (6) pages. If a third -
party submission and/or oral statement does not exceed six (6) pages in total, this may serve as 
the executive summary of that third party's arguments.  WT/DS561/R/Add.1  
 
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  Interim review  
26. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such  a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
27. If no further meeting with the Panel is requested, each party may submit written comments 
on the other party's written request for review, in accordan ce with the timetable adopted by the 
Panel. Such comments shall be limited to commenting on the other party's written request for 
review.  
Interim and Final Report  
28. The interim report, as well as the final report before its official circulation, shall b e kept strictly 
confidential and shall not be disclosed.  
Service of documents  
29. The following procedures regarding service of documents apply  to all documents submitted by 
parties and third parties during the proceedings:  
a. Each party and third party  shall submit all documents to the Panel by submitting  them with 
the DS  Registry .  
b. Each party and third party shall submit all documents to the Panel  in Microsoft Word format 
and in PDF format  as an e -mail attachmen t, or if impractical, on a CD -ROM or a DVD by 5:00 
p.m. (Geneva time) on the due dates established by the Panel . The PDF version shall 
constitute the official version for the purposes of submission deadlines and the record of the 
dispute.  Email  of a document  shall constitute electronic service on the P anel, the other party, 
and the third parties.  
c. All emails to the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO 
Secretariat  staff whose email addresses have been provided to the parties in the 
proceeding s. If a CD-ROM/DVD is provided, it shall be filed with the DS Registry (office 
No. 2047)  by 5:00  p.m. (Geneva time) on the due dates established by the Panel .  
d. By 5:00 p.m. (Geneva time) on the next working day following the electronic submission, 
each party and third party shall submit one  (1) paper copy of all documents it submits to 
the Panel, including the exhibits, with the DS  Registry (office No. 2047) . If any documents 
are in a format that is impractical to submit as a paper copy, the  party shall inform the Panel 
and the other party (and third parties if appropriate) accordingly.  
e. In addition, each party and third party is invited to submit all documents thr ough the Digital 
Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the 
submission of the electronic  versions. If the parties or third parties have any questions or 
technical difficulties relating to the DDSR, they are invited to  consult the DDSR User Guide 
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.  
f. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve any submissions  in advanc e of the first substantive 
meeting with the Panel directly on the third parties. Each third party shall serve any 
document submitted to the Panel directly on the parties and on all other third parties. A party 
or third party may serve its documents on anot her party or third party by email  or on a CD-
ROM or DVD.  
g. Each party and third party  shall submit  its documents with the DS Registry by 5:00  p.m. 
(Geneva time) on the due dates established by the Panel.   WT/DS561/R/Add.1  
 
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  h. As a general rule, all communications from the Panel  to the parties and third parties will be 
via email. In addition to transmitting them to the parties by email, the Panel shall provide 
the parties with a paper copy of the Interim Report and the Final Report.  
Correction of clerical errors in submissions  
30. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be  made promptly following the filing 
of the submission in question.  
 
 
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  ANNEX  A-2 
ADDITIONAL WORKING PROCEDURES CONCERNING SUBSTANTIVE MEETINGS  
WITH REMOTE PARTICIPATION  
Adopted on 18 February 2022  
General  
1. These Additional Working Procedures set out terms for holding the substantive meetings of 
the Panel remotely.  
Definitions  
2. For the purposes of these Additional Working Procedures:  
"Host" means the designated person within the WTO Secretariat responsible for the 
management of the platform for participants to take part in the meeting with the Panel.  
"Participant" means any authoriz ed person taking part in the meeting, including the 
Members of the Panel, the WTO Secretariat staff involved in the dispute and the organization 
of the meeting, members of the parties' and third parties' delegations, and  interpreters.  
"Platform" means the Cisco Webex platform.  
Equipment and technical requirements  
3. Each party shall be responsible for ensuring that the members of its delegation join the 
meeting using the designated platform and satisfy the minimum equipment and technica l 
requirements of the platform provider for the effective conduct of the meeting.  
4. Technical questions, including the minimum equipment and technical requirements for the 
usage of the platform, will be addressed in the advance testing sessions between th e host and 
participants provided for in paragraph 7 below.  
Technical support  
5. (1) The Secretariat has limited ability to offer remote assistance during, and in advance of 
the meeting. Each party, therefore, is responsible for providing its own technical  support to 
the members of its delegation.  
 
(2) The host will assist participants in accessing and using the platform in preparation for, 
and during the course of, the meeting with the Panel. The host will prioritize assisting those 
participants designated  as main speakers on the delegations' lists.  
 
Pre-meeting  
 
Registration  
 
6. Each party shall provide to the Panel the list of the members of its delegation on the dedicated 
form in Annex 1 below, no later than 5:00 p.m. (Geneva  time) ten working days befo re the start of 
the meeting. The list shall indicate those participants designated as main speakers.  
 
Advance testing  
 
7. The Secretariat will hold two testing sessions with participants before the substantive meeting 
with the Panel. One of these sessions will be a joint session with all participants in the meeting. 
These testing sessions will seek to reflect, as far as possi ble, the conditions of the proposed meeting. WT/DS561/R/Add.1  
 
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  Participants should make themselves available for the testing sessions. The Secretariat will be in 
contact with the participants to set the schedule of the testing sessions in due course.  
 
Confidentiality and se curity  
 
8. The meeting shall be confidential and the rules of the DSU continue to apply during the remote 
session of the meeting.  
 
9. Each party shall follow any security and confidentiality protocols set by the Panel in advance 
of the meeting.  
 
10. The pa rticipants shall connect to the meeting through a secure internet connection and shall 
avoid the use of an open or public internet connection.  
 
Conduct of the meeting  
 
Recording  
 
11. The Secretariat will record the meeting in its entirety. The recording of the meeting shall form 
part of the panel record.  
 
12. Any recording of the meeting or any part thereof other than that referred to in paragraph 11, 
through any means, including audio or video recording, or screenshot, is prohibited.  
 
Access to  the virtual meeting  
 
13.  Participants shall access the virtual meeting in accordance with these Additional Working 
Procedures.  
 
14. (1) The host will invite participants via email to join the virtual meeting.  
 
(2)  For security reasons, access to the virtual meeting will be password -protected and 
limited to participants. Participants shall not forward or share the virtual meeting link or 
password with unauthorized persons.  
 
(3) Each party shall ensure that only participants from its delegation access t he virtual 
meeting.  
 
Advance log -on 
 
15. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled 
start time of the meeting.  
 
(2) To ensure that the meeting starts as scheduled, participants must login to the platform 
at least  30 minutes in advance of the scheduled start time of the meeting.  
 
(3) Participants will be placed in a virtual lobby where they will remain until the Panel is 
ready to start the meeting, at which time the host will admit them to the meeting.  
 
Document sh aring 
 
16. (1) Before each party takes the floor, it shall email the Panel and other participants at the 
meeting a provisional written version of its statement, including any exhibits.  
 
(2) Any participant wishing to share a document with the other partici pants during the 
meeting – including via screen sharing – shall email the document and confirm that the other 
participants have received the document, before first referring to the document at the 
meeting.  WT/DS561/R/Add.1  
 
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  Pauses for internal coordination and consultation  
 
17. Parties are free to internally coordinate and consult while the meeting is ongoing so long as it 
is not disruptive to the proceedings, but they should be aware that the chat feature of the platform 
is visible to all participants. The Panel may briefly  pause a session at any time, on its own initiative 
or upon request of a party, to enable any necessary internal coordination and consultation.  
 
Participation  
 
18. Participants who are not speaking are expected to have their microphone on mute. They may 
also wish to turn off their camera to preserve bandwidth. If a participant wishes to take the floor, 
they should use the "raise a hand" function in the platform. Once the chairperson gives the floor to 
the participant, they should unmute their microphone and  turn their camera on.  
 
Communication breakdown  
 
19. Each party will designate a contact person who can liaise with the host during the course of 
the meeting to report any technical issues that arise with respect to the platform. The parties and 
third part ies shall immediately notify the Panel of any technical or connectivity issues affecting the 
participation of their delegation, or a member of their delegation, in the meeting. To do so, the party 
that experiences the technical or connectivity issue shall:  
 
(1) if possible, immediately intervene at the meeting and briefly state the nature of the 
issue experienced; or  
 
(2) if doing so is not possible, immediately contact the host and explain the nature of the 
issue experienced. The host can be contacted via the platform chat, by sending an email to 
saskia.shuster @wto.org, or by telephone at +41 22 739 5415.  
 
20. The Panel may suspend the proceedings until the technical issue is resolved or continue the 
proceedings with those that are connected.  
 
Relationship with the Working Procedures adopted by the Panel  
 
21. These Additional Working Procedures complement the Working Procedures adopted by the 
Panel, and to the extent of any conflict between the two, supersede them.  
 
 
_______________  
 
 
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  ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the United States  15 
Annex  B-2 Integrated executive summary of the arguments of Türkiye  36 
 
 WT/DS561/R/Add.1  
 
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  ANNEX B -1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES  
EXECUTIVE SUMMARY OF U.S. FIRST WRITTEN SUBMISSION  
1. The United States has brought this dispute to address measures adopted by Turkey that are 
plainly inconsistent with the fundamental WTO obligations to provide Most -Favored -Nation treatment 
(MFN) and treatment no less favorable than that provided for in a Member 's Schedule of Concessions, 
as set out re spectively in Articles I and II of the General Agreement on Tariffs and Trade 1994  
("GATT 1994 ").  
2. On June 25, 2018, Turkey issued its Decision on Implementation of Additional Financial 
Obligations for the Import of Certain Products Originating in the United States of America  ("Decision 
on Implementation "). According to a statement made by a Turkish official, Turkey imposed additional 
duties on U.S. -origin products in response to U.S. national security actions taken pursuant to Sectio n 
232 of the Trade Expansion Act of 1962.  
3. Article 1 of the Decision on Implementation states that the "purpose " of the Turkish measure 
is "to collect additional duties on the import of some products originating " in the United States. Thus, 
the Turkish m easure explicitly discriminates against certain U.S. products exclusively  on the basis 
of origin. Article 4 of the Decision on Implementation provides that the additional duties "shall enter 
into force " on June 21, 2018.  
4. On August 15, 2018, Turkey issue d the Decision to Amend the Decision to Impose Additional 
Financial Liabilities on the Import of Some Products Originating From the United States of America  
("Decision to Amend "). Article 1 of the Decision to Amend modifies the additional duties stipulated  
in the Decision on Implementation. The Decision to Amend does not indicate any country other than 
the United States to which the additional duties apply.  
5. Turkey 's additional duties apply to all U.S. -origin products classified within the 22 four - and 
six-digit tariff lines listed in the measure. Turkey publishes MFN rates at the 12 -digit level. The 
United States examined Turkey 's 2018 and 2019 MFN schedules. Both of these schedules indicate 
that the 22 four - and six -digit tariff lines subject to the addi tional duties encompass a total of 479 
tariff lines at the 12 -digit level. Thus, the MFN and bound rate analysis presented here applies to all 
479 tariff lines, not simply the 22 tariff lines listed in the measure.  
6. Accordingly, Turkey has applied additi onal duties ranging from four to 70 percent on 479 tariff 
lines of products originating in the United States, effective June 21, 2018. Turkey then applied 
amended additional duties ranging from 4 to a 140 percent on the same 479 tariff lines of products 
originating in the United States, effective August 15, 2018.  
7. The United States demonstrates that Turkey exceeded its MFN commitments by referencing 
three figures for each tariff code: (A) Turkey 's applied MFN rate; (B) Turkey 's additional duty that 
applied to the MFN rate; and (C) the sum of those two duty values. Read together, these three 
numbers demonstrate that Turkey 's additional duties on the U.S. -origin product exceed Turkey 's 
MFN commitments.  
8. The United States demonstrates that Turkey exceeded its bound rate commitments by 
referencing two figures for each tariff line: (C) the sum of Turkey 's applied MFN rate and the 
additional duty rate, and (D) Turkey 's bound rate commitment. Turkey 's bound rates are set at the 
10-digit level. The United States  identified a bound rate for each of the 479 tariff lines at issue.  
9. Read together, the two figures referenced for each tariff line demonstrate the following. First, 
during the June 21, 2018 to August 14, 2018 period, Turkey exceeded its bound rate commi tments 
for 115 of the 479 tariff lines. Second, during the August 15, 2018 to December 31, 2018 period, 
Turkey exceeded its bound rate commitments on 210 of the 479 tariff lines. Third, during the period 
January 1, 2019 and thereafter, Turkey exceeded its bound rate commitments on 210 of the 479 
tariff lines.  WT/DS561/R/Add.1  
 
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  10. On July 16, 2018, the United States requested consultations with Turkey pursuant to Article 
4 of the Understanding on the Rules and Procedures Governing the Settlement of Disputes ("DSU") 
and Artic le XXIII of the GATT 1994. Pursuant to this request, Turkey and the United States held 
consultations August 29, 2018. Following the request for consultations, Turkey amended the 
additional duties measure to increase the rates of duty for 21 out of the 22 t ariff lines affected by 
the additional duties measure. On October 18, 2018, the United States requested supplemental 
consultations with Turkey. The United States held supplemental consultations with Turkey on 
November 14, 2018.   
I. TURKEY 'S MEASURE IS INC ONSISTENT WITH ITS OBLIGATIONS UNDER ARTICLE 
I:1 OF THE GATT 1994  
11. Turkey 's measure is inconsistent with Article I:1 of GATT 1994 because it fails to extend to 
certain products of the United States an advantage granted by Turkey to like products origina ting in 
other countries.  
12. First, Turkey 's measure is explicitly covered by the text of Article I:1. A "customs duty " is a 
charge, such as those in Turkey 's measure, that is imposed on imports at the border. The terms 
"tariff", "customs duty ", and "import duty, " as used in economics and international trade law, are 
interchangeable, at least for purposes of the matters at issue in this dispute.   
13. The MFN obligation of Article I:1 applies to both duties that have been bound as part of a WTO 
Member 's schedule under Article II of GATT 1994 and to unbound duties. It also applies to duties 
that are set below a bound rate. Thus, Article I:1 requires a WTO Member  that applies a duty rate 
below the bound rate to imports from some WTO Members to apply that same duty rate to imports 
of "like products " from all WTO Members.  
14. In the measure at issue in this dispute, Turkey 's measure imposes additional duties rangin g 
from 4 to a 140 percent on the same 479 tariff lines of products originating in the United States, 
effective August 15, 2018. For the 479 tariff lines at issue in this dispute, the sum total of 's applied 
MFN rate and its additional duty demonstrate that  Turkey 's rate of duty applied to U.S. originating 
products is above its MFN rate.  
15. Second, each U.S. product subject to Turkey 's measure is "like" a product from other countries 
not subject to the additional duties within the meaning of Article I:1. As  explained in section II, 
Turkey 's measure discriminates against U.S products on the basis of origin. Thus, Turkey 's measure 
differentiates among products not on the basis of physical characteristics, end -use, or consumer 
preferences, but rather on a disti nction that is not relevant to a "like product " analysis.  
In circumstances where the only distinction between two sets of 
products is the country of origin, it may be presumed that the two 
sets are "like products. " Numerous Appellate Body and panel report s 
have adopted this analysis.  
16. Turkey 's measure imposes additional duties only on products originating in the United States, 
and leaves unchanged the rate duty applicable to other countries, including all other WTO Members. 
U.S origin is the only crite rion used by the measure for imposing additional duties on U.S. products 
covered by 477 tariff lines, but not products from other countries entered under the same tariff lines. 
Thus, the like product element of Article I:1 is satisfied.  
II. TURKEY 'S MEASURE IS INCONSISTENT WITH ITS OBLIGATIONS UNDER ARTICLE 
II OF THE GATT 1994  
17. Turkey 's measure is inconsistent with its obligations under Article II:1 of the GATT 1994, which 
requires WTO Members to exempt products of another WTO Member from duties in  excess of those 
set forth in their Schedule of Concessions and accord treatment no less favourable than what is 
provided for in that Schedule.  
18. An evaluation of a claim under Article II:1(a) and (b) involves an identification of the (1) the 
treatment t o be accorded under the importing Member 's Schedule for the products at issue; (2) the 
treatment actually accorded, to those products when originating in the territory of a Member; and WT/DS561/R/Add.1  
 
- 17 - 
 
  lastly (3) whether the measure results in the imposition of duties on s uch products that are in excess 
of what is provided for in the importing Member 's Schedule.  
19. In other words, if a measure results in the imposition of duties ( x) that are in excess of the 
duties provided for in the Schedule ( y), the measure breaches th e obligations under Article II:1(a) 
and (b) of the GATT 1994.  
20. Additionally, establishing a breach of Article II:1(b) necessarily entails a breach of 
Article  II:1(a). For this reason, the United States turns first to paragraph (b) in Article II:1 of th e 
GATT 1994.  
21. Article II:1(b) is divided into two sentences. Under the first sentence, a WTO Member must 
exempt the products of another WTO Member from any "ordinary customs duties " in excess of those 
set forth in its Schedule when such products are im ported into the territory of the former. Under the 
second sentence, a WTO Member must exempt those products from all "other duties or charges " of 
any kind that are in excess of those imposed as of certain dates.  
22. The distinction between the first and s econd sentence concerns whether the duties in question 
constitute "ordinary customs duties " or "other duties or charges. " For purposes of this dispute, it is 
legally immaterial whether the additional duties constitute "ordinary customs duties " or "other du ties 
or charges " because, under either characterization, the duties exceed Turkey 's rates bound in 
Turkey 's schedule.  
23. With respect to the first sentence of Article II:1(b), from June 21, 2018 to August 14, 2018, 
Turkey exceeded  its bound rate commitments for 115 of the 479 tariff lines at issue in this dispute. 
In addition, from August 15, 2018 to December 31, 2018, Turke y exceeded  its bound rate 
commitments on 210 of the 479 tariff lines at issue in this dispute. Finally, from January 1, 2019 
and thereafter, Turkey has exceeded its bound rate commitments on 210 of the 479 tariff lines at 
issue in this dispute.  
24. Given T urkey 's breach of Article II:1(b) through the imposition of the duties in excess of its 
bound rate on products originating in the United States, Turkey has correspondingly accorded less 
favourable treatment to these products and breached Article II:1(a) as  well. 
III. IN THE EVENT TURKEY ATTEMPTS TO PRESENT A DEFENSE BASED ON A 
SAFEGUARD THEORY, SUCH A DEFENSE WOULD BE COMPLETELY WITHOUT MERIT 
BECAUSE THE UNITED STATES HAS NOT ADOPTED A SAFEGUARD  
25. Turkey may attempt to assert a defense based on some type of theory that its additional 
duties are justified under the WTO Agreement on Safeguards  ("the Safeguards Agreement "). In the 
event that Turkey attempts to present such a defense, the United States will respond to Turkey 's 
arguments in subsequent submissio ns.  
26. Nonetheless, in this first submission, the United States would emphasize a key, fatal flaw in 
any defense based on the Safeguards Agreement: namely, no U.S. safeguard is related to the 
matters in this dispute. For the Safeguard Agreement to apply to a Member 's measure, the Member 
must invoke the Safeguard Agreement as a justification for suspending GATT 1994 obligations or 
withdrawing or modifying tariff concessions. The United States has not invoked the Safeguard 
Agreement in connection with this dispute, and the Safeguard Agreement simply does not apply.  
27. Article XIX of the GATT 1994 and the Safeguards Agreement establish a WTO Member 's right 
to implement a safeguard measure, temporarily suspending concessions and other obligations, when 
that WTO Member invokes this right with the required notice indicating that it has determined that 
a product is being imported into its territory in such increased quantities and under such conditions 
as to cause serious injury or threat of serious injury to th e WTO Member 's domestic industry.  
28. The essential point that a Member must invoke the protections of Article XIX for the Safeguard 
provisions to apply is reinforced by the text of the Safeguards Agreement.  
29. The Safeguards Agreement elaborates on the  rights and obligations in Article XIX. Article 1 of 
the Safeguards Agreement states "[t]his Agreement establishes rules for the application of safeguard WT/DS561/R/Add.1  
 
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  measures which shall be understood to mean those measures provided for in Article XIX of the 
GATT  1994."  
30. One of the requirements from Article XIX that the Safeguards Agreement elaborates upon is 
that the right to apply a safeguard measure requires invocation of Article XIX through written notice 
of that invocation to other WTO Members.  
31. If that ri ght is not exercised with the appropriate notice invoking this authority, a measure 
cannot be considered a safeguard under Article XIX and the Safeguards Agreement. Moreover, 
Turkey cannot exercise the rights of the United States under Article XIX. If the United States did not 
invoke Article XIX, that is simply the end of the matter.  
32. The Safeguards Agreement expressly defines safeguard measures as those provided for in 
Article XIX of the GATT 1994, which in turn makes clear that an importing Member mus t invoke the 
right under Article XIX in order to apply a safeguard measure. Without an invocation of that right, a 
measure does not qualify as a safeguard under the WTO Agreement.   
EXECUTIVE SUMMARY OF THE U.S. OPENING STATEMENT AT THE FIRST SUBSTANTIVE 
MEETING OF THE PANEL  
I. INVOCATION IS A PRECONDITION TO APPLYING A SAFEGUARD MEASURE UNDER 
GATT ARTICLE XIX AND THE WTO AGREEMENT ON SAFEGUARDS  
33. The first step to determine whether a WTO Member has applied a safeguard measure under 
Article XIX of the GATT 1994 and the Safeguards Agreement is to identify whether the Member in 
question has invoked  the right to take action pursuant to these provisions . Absent this invocation, 
a measure cannot fall under the WTO 's safeguard disciplines.  
34. First, Article 1 of the Safeguards Agreement provides that the Safeguards Agreement 
"establishes rules for the application of safeguard measures which shall be unde rstood to mean 
those measures provided for in Article XIX of GATT 1994. "  
35. This proposition is clear from the text and structure of Article XIX of the GATT 1994. For 
instance, Article XIX:1(a) provides that if certain conditions are met, a Member "shall be free " to 
suspend an obligation or to withdraw or modify a concession. Thus, when a Member believes that 
the conditions in Article XIX:1(a) are met, that Member has the discretion to invoke the right 
reserved to it under Article XIX. The Appellate Body has expressed support for this analytical 
approach.  
36. In Indonesia – Iron or Steel Products , the Appellate Body reasoned that the phrase "shall be 
free" in Article XIX:1(a) accords to a "Member the 'freedom ' to exercise its right to impose a 
safeguard m easure by suspending a GATT obligation or withdrawing or modifying a GATT concession 
if the conditions set out in the first part of Article XIX:1(a) are met. " Accordingly, a Member may 
elect to invoke Article XIX to implement a safeguard measure. Absent a Member 's invocation of 
Article XIX, however, a measure cannot constitute a safeguard under WTO safeguard disciplines.  
37. The text of Article XIX:2 of the GATT 1994 confirms the U.S. position regarding invocation. 
Under that provision, a Member 's ability to take action pursuant to Article XIX is conditioned on 
invocation with notice to other Members before that Member can take action. In relevant part, 
Article  XIX:2 provides:  
Before any contracting party shall take action pursuant  to the provisions of 
paragraph 1 of this Article, it shall give notice  in writing to the CONTRACTING 
PARTIES as far in advance as may be practicable and shall afford the CONTRACTING 
PARTIES and those contracting parties having a substantial interest as exporters of 
the product co ncerned an opportunity to consult with it in respect of the proposed  
action. (emphasis added)  
38. Accordingly, without invocation, and without notice of that invocation, a Member has not taken 
and is not "free" to "take action pursuant " to Article XIX.  WT/DS561/R/Add.1  
 
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  39. Similarly, the text and structure of Article XIX:3(a) of the GATT 1994 further support the U.S. 
position. Under that provision, if the consultations envisioned by Article XIX:2 fail to address the 
concerns of affected Members, then affected Members can s uspend substantially equivalent 
concessions or other obligations. Invocation and notice, however, is the triggering condition for the 
consultation.  
40. Third, multiple provisions in the Safeguards Agreement also support the necessity for 
invocation and no tice. For instance, the first sentence of Article 8.1 of the Safeguards Agreement 
provides:  
A Member proposing  to apply a safeguard measure or seeking an extension of a safeguard 
measure shall endeavor to maintain a substantially equivalent level of concessions and other 
obligations to that existing under GATT 1994 between it and the exporting Members who 
would be  affected by such a measure, in accordance with the provisions of paragraph 3 of 
Article 12. (emphasis added)  
41. According to its ordinary meaning, the term "propose " means to "suggest or state (a possible 
plan or action) for consideration. " How does a Me mber "propose " to apply or extend a safeguard 
measure? Through invocation of the WTO 's safeguards provisions and notice.  
42. Finally, consider Article 8.3 of the Safeguards Agreement. In relevant part, Article 8.3 provides 
that a "Member proposing to appl y or extend a safeguard measure shall provide adequate 
opportunity for prior consultation with those Members having a substantial interest as exporters " of 
the product concerned. Again, this reference to "proposing " supports the U.S. position regarding 
invocation. The term "proposing " presumes the existence of a notification by a Member seeking to 
take action pursuant to Article XIX and the Safeguards Agreement.  
II. TURKEY'S ARGUMENT THAT THE APPLICABILITY OF THE SAFEGUARDS AGREEMENT 
IS AN "OBJECTIVE EXAMINATION" MISSES THE POINT  
43. According to its ordinary meaning, the term "propose " means to "suggest or state (a possible 
plan or action) for consideration. " How does a Member "propose " to apply or extend a safeguard 
measure? Through invoca tion of the WTO 's safeguards provisions and notice.  
Finally, consider Article 8.3 of the Safeguards Agreement. In relevant part, Article 8.3 provides that 
a "Member proposing to apply or extend a safeguard measure shall provide adequate opportunity 
for pr ior consultation with those Members having a substantial interest as exporters " of the product 
concerned. Again, this reference to "proposing " supports the U.S. position regarding invocation. The 
term "proposing " presumes the existence of a notification by  a Member seeking to take action 
pursuant to Article XIX and the Safeguards Agreement.  
44. We now turn to Turkey 's specific arguments in support of its flawed interpretation of the WTO 's 
safeguards provisions. According to Turkey, "the existence of a safeg uard measure is based on an 
objective examination. " This argument completely misses the point.  
45. The United States agrees that the applicability of the WTO 's safeguards disciplines to a 
particular matter requires an "objective examination. " As the Unite d States has explained throughout 
this proceeding, the first step in the analysis is the objective examination of whether a Member has 
invoked the right to take action pursuant to Article XIX. In fact, the examination of whether a 
Member has taken an actio n in the past – here, the invocation of the safeguards agreement – is the 
type of objective analysis evaluated in every dispute settlement proceeding. It is no different than 
the analysis of whether a Member has adopted a measure that increases duties on t he products of 
another Member.  
46. Here, an objective examination shows that the United States has not invoked Article XIX; 
therefore, any objective examination must conclude with the determination that Article 8.2 of the 
Safeguards Agreement is simply no t applicable in this dispute.  
III.  TURKEY  RELIES ON WTO REPORTS THAT ARE NOT RELEVANT HERE  
47. Turkey 's failure to ground its justification on the relevant text of the WTO Agreement is a fatal 
flaw of its approach. Instead, Turkey derives its legal theor y from the reasoning of panel and WT/DS561/R/Add.1  
 
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  Appellate Body reports in Indonesia – Iron or Steel Products . That dispute, however, is not applicable 
here because it did not address a situation where a Member has not invoked Article XIX of the 
GATT  1994.  
48. The panel and Appellate Body reports in Indonesia – Iron or Steel Products  do not support 
Turkey 's extreme position. For instance, in that dispute, the panel recognized that a "fundamental 
question " was whether the measure should properly be considered a safeguard m easure within the 
meaning of Article 1 of the Safeguards Agreement. The panel pointed out that "not any measure 
suspending, withdrawing or modifying a GATT obligation or concession will fall within the scope of 
Article XIX:1(a). "  
49. And, in Indonesia – Iron or Steel Products , the disputing parties concurred that the Indonesian 
measure at issue was a safeguard measure. Why? Because the dispute followed invocation and 
notification under Article XIX and the Safeguards Agreement. Thus, in that dispute, the di sputing 
parties concurred that the measure at issue in that dispute met what – in most situations – is the 
fundamental criterion for establishing the existence of a safeguard measure: namely, that the 
Member taking action invokes  Article XIX of the GATT 19 94 as the legal basis for its measure.  
50. Furthermore, the Appellate Body in Indonesia – Iron or Steel Products  adopted a multi -step 
analysis to determine whether the measure at issue was a safeguard measure under Article XIX. 
Under the first step of tha t analysis, a WTO Member must invoke  the right under Article XIX for a 
measure to be considered a safeguard within the meaning of Article 1 of the Safeguards Agreement. 
Of course, as in Indonesia – Iron or Steel Products , invocation is not a sufficient condition for the 
measure to fall under  the WTO safeguards discipline because the measure still needs to meet the 
other conditions of Article XIX and the Safeguards Agreement. But if the first step of invocation and 
notification does not take place, the measure is not a measure taken pursuant t o Article XIX.  
IV.  TURKEY'S  APPROACH FAILS UNDER ITS OWN TEST  
51. Significantly, even under the analytical approach that Turkey urges the Panel to adopt, the 
relevant factors still support the U.S. position. Turkey derives its legal theory from the Appel late 
Body's report in Indonesia – Iron or Steel Products . In that dispute, the Appellate Body reasoned 
that as part of an assessment of whether a measure presents the features of a safeguard measure, 
a panel should:  
evaluate and give due consideration to a ll relevant factors, including the manner in which 
the measure is characterized under the domestic law  of the Member concerned, the 
domestic procedures  that led to the adoption of the measure, and any relevant 
notifications  to the WTO Committee on Safeguar ds. 
52. Regarding the first factor (domestic law), the U.S. security measures were imposed under 
Section 232 of the Trade Expansion Act of 1962. Section 232 authorizes the President of the United 
States, upon receiving a report from the U.S. Secretary of C ommerce finding that an "article is being 
imported into the United States in such quantities or under such circumstances as to threaten to 
impair the national security ," to take action that "in the judgment of the President " will "adjust 
the imports of the  article and its derivatives so that such imports will not threaten to impair the 
national security ." In contrast, under U.S. domestic law, safeguards measures are taken pursuant 
to Section 201 of the Trade Act of 1974.  
53. Regarding the second factor (do mestic procedures), the Bureau of Industry and Security of 
the U.S. Department of Commerce conducted the investigation pursuant to Section 232. The mission 
of the Bureau of Industry and Security is to protect the security of the United States, including it s 
national security, cyber security, and homeland security. In contrast, the U.S. International Trade 
Commission is the only competent authority in the United States authorized to conduct safeguards 
investigations.  
54. Finally, the application of the thir d factor (notification to the WTO Committee on Safeguards), 
further supports the U.S. position. The United States has not notified the WTO Committee on 
Safeguards of any relevant safeguard because the United States did not invoke Article XIX of the 
GATT 19 94.  WT/DS561/R/Add.1  
 
- 21 - 
 
  55. Accordingly, were the Panel to assess the U.S. security measures under the factors suggested 
by Turkey, it would conclude that the U.S. security measures do not qualify as safeguard measures 
under Article XIX of the GATT 1994.  
V.  ADOPTING TURKEY'S APPROACH WOULD UNDERMINE THE WTO  
56. Turkey has taken the position that any measure that a Member deems inconsistent with a 
GATT obligation is a "safeguard. " And, on that basis, that Member can decide to adopt retaliatory 
measures disgui sed as "rebalancing " measures.  
57. This is a stunning position. It is our understanding that, since 1947, no Member has ever 
taken this view of Article XIX of the GATT 1994. Nor, since 1995, of Article XIX plus the WTO 
Safeguards Agreement. Moreover, Turk ey's position would radically undermine the WTO dispute 
settlement mechanism and the WTO as a whole.  
EXECUTIVE SUMMARY OF U.S. SECOND WRITTEN SUBMISSION  
I. THE PLAIN MEANING OF THE TEXT OF GATT 1994 ARTICLE XIX ESTABLISHES THAT 
INVOCATION IS A PRECONDITIO N TO APPLYING SAFEGUARD MEASURE  
58. The text of GATT 1994 Article XIX, in its context and in the light of the agreement 's object 
and purpose, establishes that invocation is a precondition to applying a safeguard measure. The title 
of Article XIX, "Emergenc y Action on Imports of Particular Products ", does not focus on any particular 
type of measure, nor does it reference any type of obligation. Instead, the article sets out rules for 
how a Member may choose to take action that would otherwise be inconsistent  with obligations 
under the GATT 1994 affecting imports of particular products. Further, the term "emergency " in the 
title of Article XIX implies that safeguard measures are meant to address exigent circumstances. 
The ordinary meaning of "emergency " is a s ituation "that arises unexpectedly and requires urgent 
action. "  
59.  Article XIX:1(a) allows a WTO Member to deviate from its obligations under the GATT 1994 
if the conditions set out in that provision are present. For analytical purposes, Article XIX:1(a ) can 
be divided into two parts. The first part sets out the conditions that, if present, would give a Member 
the right to apply a safeguard. Where those conditions are present, the second part establishes the 
right of a Member to apply a safeguard ( i.e., "the contracting party shall be free ") and sets out 
requirements for the application of a safeguard. Accordingly, Article XIX:1(a) establishes a right – 
the right to suspend obligations or modify or withdraw concessions – in the sense that 
Article  XIX:1(a) permits a Member, when it has invoked this provision and under certain conditions, 
to take action that would otherwise be inconsistent with its WTO obligations.  
60. Under Article XIX:2, a Member 's ability to take action pursuant to Article XIX:1 is conditioned  
on invocation with notice to other Members before that Member can take action. The first sentence 
of Article XIX:2 provides:  
 Before any contracting party shall take action pursuant  to the provisions 
 of paragraph 1 of this Article, it shal l give notice  in writing to the 
 CONTRACTING PARTIES as far in advance as may be practicable and  
 shall afford the CONTRACTING PARTIES and those contracting parties 
 having a substantial interest as exporters of the product concerned an 
 opportunity to co nsult with it in respect of the proposed  action.  
 (emphasis added)  
61. The ordinary meaning of the terms in the first sentence of Article XIX:2 show that invocation 
is a precondition to applying a safeguard. The term "before " is defined as "preceding an e vent." The 
term "pursuant " means "in accordance with ". And the term "propose " means to "[p]ut forward or 
present for consideration " or "discussion ". Thus, invocation and notice from the WTO Member 
proposing to take action must precede "action pursuant to " paragraph 1. Without such notice, a 
Member is not seeking legal authority pursuant to Article XIX to suspend an obligation or to withdraw 
or modify a concession.  
62. Of note, the third sentence of Article XIX:2 provides a limited exception to the consulta tion 
requirement:  WT/DS561/R/Add.1  
 
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  In critical circumstances, where delay would cause damage which it would be difficult 
to repair, action under paragraph 1 of this Article may be taken provisionally 
without prior consultation , on the condition that consultation shall be effected 
immediately after taking such action.  
Critically, this exception to act "without prior consultation " does not apply to the requirement in 
Article XIX:2, first sentence, to invoke Article XIX by providing notice to Members in writing. Thus, 
the re quirement to provide notice is unconditional .  
63. The text of Article XIX:3(a) of the GATT 1994 also shows that invocation is a precondition  
to applying a safeguard measure. Under that provision, if the consultations envisioned by 
Article  XIX:2 fail to ad dress the concerns of affected Members, affected Members can suspend 
substantially equivalent concessions or other obligations. These envisioned consultations are 
triggered by the invocation and notice provision under Article XIX:2. In full, Article XIX:3( a) 
provides:  
If agreement among the interested contracting parties with respect to the action is 
not reached, the contracting party which proposes  to take  or continue  the action 
shall, nevertheless, be free to do so, and if such action is taken or continue d, the 
affected contracting parties shall then be free, not later than ninety days after such 
action is taken, to suspend, upon the expiration of thirty days from the day on which 
written notice  of such suspension is received by the CONTRACTING PARTIES, th e 
application to the trade of the contracting party taking such action, or, in the case 
envisaged in paragraph 1(b) of this Article, to the trade of the contracting party 
requesting such action, of such substantially equivalent concessions or other 
obligat ions under this Agreement the suspension of which the CONTRACTING 
PARTIES do not disapprove.  
64. Thus, in terms of Article XIX:3(a), without notice  of a proposed action, a Member "which 
proposes to take or continue the action shall [ not] be free to do so. " That is, without invocation , 
a Member cannot take (and has not taken) action pursuant to Article XIX.  
II. THE CONTEXT OF ARTICLE XIX CONFIRMS THAT INVOCATION IS A PRECONDITION 
TO APPLYING A SAFEGUARD MEASURE  
65. The context provided by other provisions of the WTO Agreement confirms that invocation is a 
precondition to applying a safeguard measure. A number of rebalancing provisions in the WTO 
Agreement confirm that Article XIX of the GATT 1994 establishes a right that must be invoked  by 
a Member taking action under that provision. Although the requirements vary, these provisions 
contemplate a Member exercising a right through invocation and contain structural similarities to 
Article XIX.  
66. Specifically, the follo wing provisions of the GATT 1994 contemplate a Member affirmatively 
exercising the right to modify or withdraw a tariff concession or to suspend an obligation through 
invocation : Article XXVIII, Article XXIV, Article XVIII, Article II, and Article XXVII. I n addition, 
rebalancing provisions in other WTO agreements reflect a similar structure by which a Member may 
invoke  the right to modify or withdraw a tariff concession or to suspend an obligation, including: 
Article XXI of the General Agreement on Trade in  Services  (GATS), Article 5 of the Agreement on 
Agriculture (Agriculture Agreement), and Article 6 of the Agreement on Textiles and Clothing  
(Textiles Agreement).   
III. THE NEGOTIATING HISTORY OF ARTICLE XIX CONFIRMS THAT INVOCATION IS A 
PRECONDITION TO AP PLYING A SAFEGUARD MEASURE  
67. The drafting history of Article XIX of the GATT 1994 dates back to negotiations to establish 
the International Trade Organization of the United Nations (ITO). In 1946, the United States 
proposed a draft charter for the ITO, w hich included a provision titled "Emergency Action on Imports 
of Particular Products ". 
68. As originally drafted, the predecessor to Article XIX included an invocation requirement. The 
invocation requirement in Article XIX stems from the provisions on prov iding notice of a proposed 
action. During the negotiations on the text of the proposed ITO provision that became Article XIX, WT/DS561/R/Add.1  
 
- 23 - 
 
  however, some drafters suggested removing the notice requirement. Led by the United States, the 
drafters agreed to keep the requir ement.  
69. In the course of negotiations, the Chairman suggested that the drafters agree about prior 
notice , but suggested that to address "exceptional cases " the drafters "have to try to find a formula " 
that "gives the right in very exceptional cases " to "take immediate action " without prior consultation. 
The United States agreed with the Chairman, noting that "the Chairman 's suggestion that there 
might be provision made for quicker action in exceptional cases is sound. " After the drafters 
discussed the c ompromise, the Chairman wrapped up the discussion on Article 29 by observing that, 
if he saw the remarks of the drafters clearly, that there "will be prior consultation unless exceptional 
circumstances make it impracticable. " The drafters agreed with pausi ng the discussion on Article  29 
until a new draft was presented by the rapporteur.  
70. On November 14, 1946, the drafters discussed a revised version of Article 29. At the beginning 
of the discussion on Article 29, the rapporteur observed that:  
It seemed t o be agreed that prior or simultaneous notice  should in all cases 
 be given, but that with respect to consultation there should be some 
 leeway in critical cases for the action to be taken first and the consultation 
 should follow upon it  immediately. It is believed that the draft as it 
 originally stood permitted short notice. In other words, under the  
 original language of the draft it reads  
  Before any Member shall take action pursuant to the provisions of  
  paragraph 1 of this Article, it shall give  notice in writing to the  
  Organisation as far in advance as may be practicable.  
 It seems to me that would permit of short notice; it could a[l]most be 
 simultaneous. Therefore, I did not think that any change was needed in 
 that.  
71. Regarding prior consultation, the rapporteur noted that new text had been added to Article 29 
that would allow action without prior consultation in exceptional circumstances.  
72. On November 20, 1946, the drafters issued a report that included a revised Article 29 that 
retained the prior notice requirement. This version of Article 29 was included in the London Report 
and it became Article 34 in the draft Charter of the ITO. While the drafters made further revisions 
to Article 34 during the discussions in New York, Geneva,  and Havana, the prior notice requirement 
was kept by the drafters and found its way to the current Article XIX of the GATT 1994.  
73. As the foregoing demonstrates, the drafters of the provision that became Article XIX of the 
GATT 1994 made the intentiona l decision to keep the notice requirement. Accordingly, the drafting 
history of Article XIX of the GATT confirms that invocation is a precondition to applying a safeguard 
measure.  
IV. THE TEXT OF THE SAFEGUARDS AGREEMENT ESTABLISHES THAT INVOCATION IS 
A PRECONDITION TO APPLYING A SAFEGUARD MEASURE  
74. The text of the Safeguards Agreement further confirms that invocation is a precondition to 
apply a safeguard measure. The Safeguards Agreement sets out detailed requirements for a Member 
to follow regarding i ts application of a safeguard. Three articles of the Safeguards Agreement 
highlight that invocation of Article XIX is the critical precondition for a Member to exercise its right 
when departing from its obligations and commitments to prevent or remedy seri ous injury to a 
relevant domestic industry.  
75. First, the General Provision in Article 1 reaffirms that the Safeguards Agreement only applies 
to measures that invoke Article XIX. In full, Article 1 of the Safeguards Agreement provides:  
This Agreement establishes rules for the application of safeguard 
measures which shall be understood to mean those measures 
provided  for in Article XIX  of GATT 1994.  WT/DS561/R/Add.1  
 
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  76. An integral feature of the right in Article XIX, as explained above, is the requiremen t of 
invocation as a precondition to taking action pursuant to Article XIX. The rules in the Safeguards 
Agreement identify certain requirements that a Member must satisfy after deciding to take or seek 
a safeguard measure. This includes, as discussed below , a Member 's obligation to notify other 
Members of its decision to institute an investigation under its domestic safeguards authority, to 
notify other Members after finding serious injury to a domestic industry based on such an 
investigation, and to notify  other Members after the decision to apply a safeguard measure.  
77. Second, Article XIX of the Safeguards Agreement reinforces the requirement of invocation as 
a precondition to action under Article XIX. Article 12.1 of the Safeguards Agreement contains 
requirements concerning notifications and consultation, and provides that there are three milestones 
over the course of a safeguards investigation that a Member must notify to the Committee on 
Safeguards. A Member must provide a notification when: (a) initi ating a safeguards investigation 
under its domestic authority, (b) making a finding that increased imports are causing or threatening 
serious injury to a domestic industry, or (c) deciding to impose a safeguard measure based on an 
investigation that result s in a finding of serious injury.  
78. In addition, Article 12.6 requires that Members "notify promptly the Committee on Safeguards 
of their laws, regulations and administrative procedures relating to safeguard measures  
as well as any modifications made to them. " In other words, it is clear that a Member has invoked 
Article XIX to apply or extend a safeguard measure and followed the procedural requirements in the 
Safeguards Agreement when  it notifies a decision according  to Article 12.1(c) and it has taken that 
decision under a provision of the safeguards laws, regulations, and administrative proceedings it 
previously notified under Article 12.6. Consistent with this, other Members understand when a 
safeguard measure has been imposed because the implementing Member will provide notice of the 
measure taken under "laws, regulations and administrative procedures " it already notified as its 
domestic authority to apply a safeguard measure.  
79. The ability of other Members to t ake action under Article 8.2 of the Safeguards Agreement is 
dependent on an implementing Member actually invoking Article XIX. The rules regarding notification 
of that invocation, as established above, appear in Article 12 of the Safeguards Agreement. Sinc e 
invocation involves the right under Article XIX that existed prior to the adoption of the Safeguards 
Agreement, the latter does not transform the nature of that right but establishes the steps a Member 
must take to exercise those rights.  
80. In this dis pute, the United States has not applied a safeguard measure because it has not 
invoked Article XIX of the GATT 1994. The absence of any invocation is clear because the United 
States has not sent a notification to the Committee on Safeguards or taken any ac tion under a 
domestic authority that it previously notified under Article 12.6. Consequently, the actions that would 
inform other Members of a decision to invoke  Article XIX (notification of a decision to apply a 
safeguard measure and  adoption of the measu re under domestic authority that has been notified 
under Article 12.6) are absent from this dispute. Accordingly, since there has been no invocation, 
Turkey 's failure to identify where and how the United States has taken a measure "provided for in " 
Article  XIX means that it cannot rely on Article 8.2 of the Safeguards Agreement to justify its 
retaliation against the United States.  
81. Third, Article 11 of the Safeguards Agreement reinforces the requirement of invocation as a 
precondition to action under Ar ticle XIX.  
V. THE NEGOTIATING HISTORY OF THE SAFEGUARDS AGREEMENT CONFIRMS THAT 
INVOCATION IS A PRECONDITION TO APPLYING A SAFEGUARD MEASURE  
82. The negotiating history of the Safeguards Agreement has its origins in the Tokyo Round 
negotiations and a perce ived need to clarify and strengthen the provisions of Article XIX of the 
GATT  1994.  
83. For example, certain GATT contracting parties "affected by Article XIX measures wanted its 
provisions to be clarified and re -inforced. " They stressed the "need for more precise criteria for 
invocation of the safeguard clause ". The Tokyo Declaration, adopted in September 1973, stated 
that negotiations should examine "the adequacy of the multilateral safeguard system, considering 
particularly the modalities of application  of Article XIX, with a view to furthering trade liberalization WT/DS561/R/Add.1  
 
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  and preserving its results. " At the end of the Tokyo Round in April 1979, the negotiations reached 
an impasse over certain issues and no new text was agreed to.  
84. Following the Tokyo Round,  on November 29, 1982, the contracting parties issued a Ministerial 
Declaration concerning the "need for an improved and more efficient safeguard system which 
provides for greater predictability and clarity and also greater security and equity for both imp orting 
and exporting countries. " Among the issues highlighted for consideration were "transparency, " 
"coverage, " "compensation and retaliation, " and "notification. "  
85. On September 25, 1986, the contracting parties issued the Ministerial Declaration of P unta del 
Este, Uruguay, thus beginning the Uruguay Round negotiations. Safeguard disciplines were again a 
topic identified for discussion. Following the principles identified in the Ministerial Declaration 
referenced above, the GATT Council of Ministers at tempted to overcome the previous impasse 
regarding the negotiations of safeguard disciplines. In his report regarding developments in this 
context, the Chairman of the Council noted "a general recognition that safeguard actions should 
only be taken if the criteria laid down in Article XIX were met ."  
86. The major issues confronted during the renewed negotiations ultimately resulted in key 
provisions of the Safeguards Agreement. This includes Article 1 (for the understanding that the rules 
to implement a sa feguard measure only apply to measures provided for  in Article XIX), Article 12 
(with respect to the notification requirements), and Article 11 (confirming that the Safeguards 
Agreement does not apply to a measure sought, taken, or maintained under provisi on other than  
Article XIX).  
87. Accordingly, the negotiating history confirms the plain meaning reflected in the text that the 
rules in the Safeguards Agreement only apply to measures taken pursuant to Article XIX, that 
invocation is the touchstone for wh ether a Member has taken a measure pursuant to Article XIX, 
and that notification is the procedural mechanism to alert other Members of that invocation.  
VI. THE U.S. SECTION 232 MEASURES CITED BY TURKEY DO NOT FALL WITHIN THE 
SCOPE OF THE SAFEGUARDS AGREE MENT  
88. Turkey 's suggestion that the U.S. security measures under Section 232 of the Trade Expansion 
Act of 1962 (Section 232) are safeguards cannot justify Turkey 's retaliatory tariffs, and does not 
assist the Panel 's objective assessment of the matter, because United States has not invoked Article 
XIX. This is clear since the United States has not provided the notification under Article 12.1(c) of 
the Safeguards Agreement that identifies a measure taken pursuant to a domestic authority already 
notified to the Committee on Safeguards under Article 12.6 of the Safeguards Agreement. As the 
United States has explained throughout this dispute, for a measure to fall under the WTO 's 
safeguards disciplines the importing Member must invoke Article XIX.  
89. The United States recalls that the Safeguards Agreement only applies to measures taken 
pursuant to Article XIX of the GATT, as confirmed in Article 11.1(c) of the Safeguards Agreement. 
Under that provision, only measures sought, taken, or maintained purs uant to Article XIX fall within 
the scope of the Safeguards Agreement. Here, the Section 232 measures cited by Turkey were 
sought, taken or maintained under Article XXI of the GATT 1994 – which is a provision "other than 
Article XIX "; accordingly, by the p lain text of the Safeguards Agreement, the Section 232 measures 
cited by Turkey simply do not fall within the scope of the Safeguards Agreement.  
VII. THE SAFEGUARDS AGREEMENT ONLY APPLIES TO MEASURES TAKEN PURSUANT TO 
ARTICLE XIX OF THE GATT 1994  
90. In relevant part, Article 11.1(c) of the Agreement on Safeguards provides that the Agreement 
on Safeguards "does not apply to measures sought, taken or maintained by a Member pursuant to 
provisions of GATT 1994 other than  Article XIX. " 
91. The words "sought, t aken or maintained " modify the word "measures " in Article 11.1(c). 
"Sought " is the past tense and past participle of the verb "seek, " which can be defined as "[t]ry or 
attempt to do. " "Taken " is the past participle of the verb "take," which can be defined as "[h]ave an 
intended result; succeed, be effective, take effect. " "Maintained " is the past tense and past participle 
of the verb "maintain, " which can be defined as "[c]ause to continue (a state of affairs, a condition, WT/DS561/R/Add.1  
 
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  an activity, etc.). " Definitions o f the word "pursuant " – used as an adverb in Article  11.1(c) – include 
"[w]ith to: in consequence of, in accordance with. "  
92. With these definitions in mind, the ordinary meaning of the terms in Article 11.1(c) can be 
understood as "measures [that a Memb er has] tried to do, succeeded in doing or caused to continue 
in accordance with provisions of the GATT 1994 other than Article XIX. " The ordinary meaning of 
these terms establishes that Article 11.1(c) is triggered – and the Agreement on Safeguards "does 
not apply " – when a Member acts (by seeking, taking or maintaining a measure) pursuant to a 
provision of the GATT 1994 other than Article XIX.  
93. With these terms, Article 11.1(c) places the emphasis on whether a measure was sought, 
taken, or maintained under a GATT 1994 provision other than Article XIX. Here, the United States 
has expressly invoked a provision of GATT 1994 other than  Article XIX – namely, Article XXI. This 
is clear from U.S. statements, including those during meetings of the WTO Council for Trade in 
Goods, that the United States took the action for the protection of its essential security interests 
pursuant to Article XXI.  
94. With this understanding in mind, it is clear that, under Article 11.1(c), the Agreement on 
Safeguards "does not apply " when a Member has attempted or tried to take a measure in accordance 
with provisions of the GATT 1994 other than Article XIX, or when the Mem ber has succeeded in 
taking such a measure or caused such a measure to continue. Here, the United States has attempted 
to take – and succeeded in taking – the Section 232 security measures in accordance with Article 
XXI of the GATT 1994. Accordingly, under  the text of Article 11.1(c), the Agreement on Safeguards 
"does not apply " here.  
VIII.  TURKEY HAS NO BASIS FOR ASSERTING THAT ITS ADDITIONAL DUTIES ARE 
AUTHORIZED BY ARTICLE 8.2 OF THE SAFEGUARDS AGREEMENT  
95. The central question in this dispute is whether Turkey has any justification for breaching 
Articles I and II of the GATT 1994. Turkey attempts to characterize its additional duties as 
"rebalancing measures " authorized by Article 8.2 of the Safeguards Agree ment. This justification 
lacks merit because such rebalancing measures require the existence of an underlying safeguard 
measure; here, there is no relevant U.S. safeguard measure. Accordingly, the rights and obligations 
under Article XIX of the GATT 1994 a nd the Safeguards Agreement are not applicable in this 
proceeding.  
96. As detailed below, Turkey 's characterization of its additional duties as rebalancing measures 
is flawed in several respects. First, Turkey derives its legal theory not from the text of  the WTO 
Agreement but from an Appellate Body report that is not applicable in this dispute and, in any event, 
does not contain a comprehensive definition of a safeguard measure. Even under Turkey 's suggested 
approach to Article 8.2 of the Safeguards Agree ment, an application of the Appellate Body 's 
reasoning would confirm that there is no relevant U.S. safeguard measure. With respect to Turkey 's 
argument that a Member may implement rebalancing measures in cases of doubt as to the existence 
of a safeguard m easure, this suggestion is plainly contrary to the text of Article XIX of the GATT 
1994 and the Safeguards Agreement. Finally, Turkey is mistaken that the time limits in Article  8.2 
of the Safeguards Agreement support its argument for unilateral rebalancin g measures. For these 
reasons, Turkey 's justification for its breach of Articles I and II of the GATT 1994 must be rejected.  
97. Turkey does not ground its justification on the relevant text of the WTO Agreement. Instead, 
Turkey derives its legal theory fr om the Appellate Body report in Indonesia – Iron or Steel Products . 
As an initial matter, Indonesia – Iron or Steel Products  is simply not applicable because it did not 
address a situation where a Member has not invoked Article XIX of the GATT 1994. In tha t dispute, 
the disputing parties agreed that the Indonesian measure at issue met what, in most circumstances, 
is the fundamental criterion for establishing the existence of a safeguard measure: namely, that the 
Member adopting a measure invokes Article XIX  of the GATT 1994 as the basis for suspending an 
obligation or withdrawing or modifying a concession. In Indonesia – Iron or Steel Products,  Indonesia 
did notify  other Members that it intended to adopt a safeguard measure, and thus did invoke Article 
XIX o f the GATT 1994.  
98. Here, the United States did not invoke Article XIX of the GATT 1994. Thus, the Appellate 
Body's reasoning in that dispute is not relevant in this dispute.  WT/DS561/R/Add.1  
 
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  99. Moreover, Turkey is mistaken that the Appellate Body in Indonesia – Iron o r Steel Products 
established an all -encompassing definition of a safeguard measure. As Japan correctly states in its 
third-party submission, the Appellate Body "did not attempt to propose a comprehensive definition 
of a safeguard measure or ultimately to d ecide the scope of the Agreement on Safeguards. " Rather, 
the Appellate Body noted that "to constitute one of the 'measures provided for in Article XIX ', a 
measure must present certain constituent features, absent which  it could not be considered a 
safeguar d measure. " In other words, the Appellate Body 's reasoning only identifies certain 
"necessary " features. Importantly, the Appellate Body did not say that a measure presenting both 
(to use the terms used by the Appellate Body) "constituent features " automatically or necessarily 
qualifies as a safeguard measure.  Instead, the Appellate Body made explicit that "whether a 
particular measure constitutes a safeguard measure for purposes of WTO law can be determined 
only on a case -by-case basis. " 
100. Furth ermore, even under Turkey 's suggested approach, there is no U.S. safeguard measure. 
As discussed, Turkey derives its legal theory from the Appellate Body 's reasoning in Indonesia – Iron 
or Steel Products . In that dispute, the Appellate Body identified thre e factors it considered relevant 
for a panel to assess, among other relevant factors, in determining the existence of a safeguard 
measure.  
101. Regarding the first factor (domestic law), safeguard measures in the United States are 
authorized by Section 201  of the Trade Act of 1974. In contrast, under U.S. domestic law, the U.S. 
national security measures are authorized by Section 232 of the Trade Expansion Act of 1962. 
Section 232 authorizes the President of the United States, upon receiving a report from t he U.S. 
Secretary of Commerce finding that an "article is being imported into the United States in such 
quantities or under such circumstances as to threaten to impair the national security ," to take 
action that "in the judgment of the President " will "adjust the imports of the article and its derivatives 
so that such imports will not threaten to impair the national security ." 
102. Regarding the second factor (domestic procedures), the U.S. International Trade Commission 
is the only competent authority in t he United States authorized to conduct safeguard investigations. 
In contrast, the Bureau of Industry and Security of the U.S. Department of Commerce conducted 
the investigation regarding the U.S. national security measures.  
103. Finally, the application o f the third factor (notification to the WTO Committee on Safeguards), 
further supports the U.S. position. The United States has not notified the WTO Committee on 
Safeguards of any proposed action or any safeguard measure taken because the United States did  
not invoke Article XIX of the GATT 1994. Since the creation of the WTO, however, the United States 
has met its obligations under Article 12 of the Safeguards Agreement.  
104. Accordingly, were the Panel to assess the U.S. security measures under the Appell ate Body 's 
reasoning as suggested by Turkey, the Panel would conclude that the U.S. security measures do not 
qualify as safeguard measures under Article XIX of the GATT 1994.  
EXECUTIVE SUMMARY OF THE U.S. OPENING STATEMENT AT THE PANEL 'S 
VIDEOCONFERENCE WI TH THE PARTIES  
105. The United States initiated this dispute in response to Turkey 's measure that imposes 
additional duties on and discriminates against goods originating in the United States, in violation of 
its obligations in Articles I and II of the GAT T 1994. By and large, Turkey does not contest the factual 
basis of the U.S. claims. Nor does Turkey raise legal arguments to defend its measure in terms of 
the failure to accord MFN treatment and the imposition of duties in excess of the bound rate in 
Turkey's Schedule.  
106. Instead, Turkey attempts to justify its measure under Article 8.2 of the Safeguards 
Agreement. The key question, therefore, is whether WTO safeguards disciplines – provided in 
Article  XIX of the GATT 1994 and the Safeguards Agreement – apply. As the United States has 
explained over the course of these proceedings, the rights and obligations under the safeguards 
disciplines are not applicable here.   
107. At the outset, the United States would like to emphasize a key point regarding termin ology. 
This issue is important because the terminology can influence, either subtly or more directly, the WT/DS561/R/Add.1  
 
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  main legal question at issue in this dispute. The discussion in these proceedings sometimes has been 
framed as whether there is a "safeguard measure. " The use of this phrasing, however, is misleading. 
The more appropriate framing is whether the safeguards disciplines apply .  
108. Article XIX of the GATT 1994 does not define the term "safeguard measure. " Instead, Article  1 
of the Safeguards Agreement def ines "safeguard measures " as "those measures provided for in 
Article XIX of GATT 1994. " And what does Article XIX say? Article XIX provides for an "emergency 
action " that a Member is "free" to take after meeting the conditions in Article XIX:2. In particular, 
Article XIX:2 provides that, before taking an action under Article XIX:1, a Member "shall give notice 
in writing " and "shall afford…an opportunity to consult with it in respect of the p roposed action ." 
Article XIX is therefore concerned with action, and the consequences and procedures surrounding 
that action, rather than on a particular type of measure.  
109. Indeed, the action permitted under the emergency procedures in Article XIX is f ramed with 
extraordinary breadth: the suspension of concessions or other obligations. In other words, any 
measure that would otherwise breach any obligation under the GATT 1994 could potentially  be 
subject to Article XIX, if it applies. Thus, the text of t he WTO Agreement is clear: there is no special 
type of measure that, standing alone, can somehow be defined as a "safeguard measure. " Rather, 
the proper understanding is that Article XIX and the Safeguards Agreement do not apply to specific 
"types " of meas ures, but only apply when all the circumstances described in Article XIX apply. And, 
as the United States has explained throughout this proceeding, the text of Article XIX makes clear 
that the key circumstance for deciding whether Article XIX applies is wh ether the Member adopting 
the measure that would otherwise be GATT -inconsistent invokes its rights under Article XIX to take 
a measure that would otherwise be inconsistent with its WTO commitments. For this reason, the 
United States will frame the legal qu estion at issue as whether the safeguards disciplines apply – 
and not whether or not there exists a relevant "safeguard measure. "  
110. Turning to this question of whether the safeguards disciplines apply in this dispute, again, the 
answer is 'no.' As the United States has explained, Article XIX of the GATT 1994 and the Safeguards 
Agreement make clear that invocation through notice is a fundamental, condition precedent for a 
Member 's exercise of its right to take action under Article XIX, and for the applic ation of safeguards 
disciplines to that action. The United States plainly has not invoked Article XIX and, therefore, the 
safeguards disciplines do not apply.  
111. Moreover, another WTO Member cannot assert that Article XIX should have been invoked and, 
on that basis, adopt a measure that is plainly inconsistent with fundamental WTO obligations. But 
that is exactly the approach Turkey asks the Panel to adopt.  
112. In other words, Turkey believes that certain U.S. national security measures are inconsisten t 
with U.S. obligations under the WTO Agreement notwithstanding that those measures were taken 
pursuant to Article XXI of the GATT 1994. Turkey is challenging those U.S. measures in a separate 
dispute. However, instead of following the WTO 's dispute settle ment procedures, Turkey decided to 
impose additional duties on U.S. products that are plainly inconsistent with its obligations under 
Articles I and II of the GATT 1994. And Turkey is now seeking to justify its additional duties by 
advancing a baseless int erpretation of Article XIX of the GATT 1994 and the Safeguards Agreement.  
113. Besides lacking any support in the text of the WTO Agreement, Turkey 's position is 
fundamentally at odds with the basic element of the WTO Agreement that a Member is to utilize  the 
WTO's dispute settlement procedures if a Member believes that another Member 's measure is 
inconsistent with WTO rules.  
I. TURKEY 'S ADDITIONAL DUTIES MEASURE IS INCONSISTENT WITH ITS 
OBLIGATIONS UNDER ARTICLES I AND II OF THE GATT 1994  
114. The Unite d States has established the facts and demonstrated that Turkey 's measure is plainly 
inconsistent with the fundamental WTO obligations to provide MFN treatment, and to abide by the 
tariff concessions in a Member 's Schedule, as set out respectively in Artic les I and II of the GATT 
1994.  WT/DS561/R/Add.1  
 
- 29 - 
 
  115. Turkey has failed to rebut the U.S. prima facie  case by challenging the factual or legal basis 
of the U.S. claims. Indeed, Turkey has noted that "the factual descriptions of the measures set out 
in the United States ' First Written Submission are broadly accurate. "  
116. While Turkey attempts to revise down the number of tariff lines affected by its measure in 
asserting that the Panel must evaluate Presidential Decision 1130/2019 – a measure adopted after 
panel establishment – this 2019 measure is legally insignificant as it is clearly outside the Panel 's 
terms of reference. The 2019 measure is not identified in the U.S. panel request, and the DSB 
established the Panel to examine the matter in that request.  
117. Turkey grounds its argument in prior appellate reports arguin g that panels may consider post -
establishment measures that do not change the "essence " of the measure at issue. The United States 
has explained that this approach has no basis in the text of the WTO Understanding on Rules and 
Procedures Governing the Sett lement of Disputes  (DSU), particularly Articles 6.2 and 7.1. Moreover, 
even under the incorrect "essence " approach, the 2019 measure may not be considered as it would 
change the "essence " of the measure under review. That is, Turkey alleges that the 2019 m easure 
reduces the duty rates for certain tariff lines. This could materially  impact the content of the measure 
being reviewed and therefore the U.S. claims under Article II.  
118. Further, Turkey has not raised any interpretive arguments regarding the U.S . claims under 
Articles I and II. In fact, with respect to Article II, Turkey has stated that it does not object to the 
U.S. methodology for identifying bound rates, and has confirmed that a violation of Article II:I(b) 
would result in a consequential viol ation of Article II:I(a).  
119. Instead of raising arguments under Articles I and II, Turkey relies entirely on its flawed theory 
under Article 8.2 of the Safeguards Agreement to defend its additional duties measure. This defense 
itself implies that the me asure in question prima facie  breaches Turkey 's obligations under Articles 
I and II.  
II. THE FUNDAMENTAL LEGAL ISSUE REGARDING TURKEY 'S ALLEGED JUSTIFICATION 
FOR ITS ADDITIONAL DUTIES MEASURE IS WHETHER THE SAFEGUARDS 
AGREEMENT APPLIES  
120. Turkey asserts that it has implemented the measure at issue under Article 8 of the Safeguards 
Agreement. Because Turkey has presented this argument, it bears the burden to establish it. Turkey 
has failed to meet this burden because the Safeguards Agreement  does not apply.  
A. Turkey has no basis for trying to avoid its burden of proof to establish that 
the Safeguard Agreement applies.  
121. Turkey continues to assert that its Article 8.2 argument cannot be characterized as a "defense " 
or "justification ", and therefore the United States somehow carries a burden with respect to a 
provision it has not raised. The key point on burden of proof is that Turkey has raised safeguards 
disciplines to rebut the U.S. prima facie  case of a breach of the GATT 1994. Therefo re, Turkey must 
establish that (1) the safeguards disciplines are applicable and that (2) its challenged measure is 
justified under the safeguards disciplines. The U.S. panel request does not assert a breach of any 
WTO provision on safeguards. It is Turkey  – not the United States – that is arguing that the 
safeguards disciplines are applicable, and therefore it is Turkey 's burden to establish the truth of 
this assertion.  
B. The safeguards disciplines apply where a Member seeks to invoke its rights 
under Ar ticle XIX of the GATT 1994.  
122. Turkey 's attempt to justify its additional duties as a measure taken under Article 8.2 of the 
Safeguards Agreement and Article XIX:3(a) of the GATT 1994 is baseless.  
123. As the United States has explained in prior submis sions, Article XIX of the GATT 1994 
establishes a Member 's right (but not obligation) under certain conditions to deviate from its WTO 
obligations and take an emergency action. A key condition precedent to the exercise of that right 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. This invocation requirement is WT/DS561/R/Add.1  
 
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  established by the ordinary meaning of each paragraph of Article XIX, the context  provided by 
numerous other WTO provisions, and the object and purpose of the GATT 1994 to provide "reciprocal 
and mutually advantageous " arrangements directed to the "substantial reduction " of tariffs. This 
requirement is confirmed by the negotiating hist ory of Article XIX and the Agreement on Safeguards. 
Thus, without invocation, a Member cannot and has not taken action pursuant to Article XIX and the 
safeguards disciplines do not apply.  
124. Article XIX:1 provides that if certain conditions are met, a M ember "shall be free " "to suspend 
an obligation or to withdraw or modify a concession. " Thus, when a Member believes that the 
conditions in Article XIX:1(a) are met, the Member has the discretion to invoke the right reserved 
to it under Article XIX. Under Article XIX:2, a Member 's ability to take action pursuant to Article  XIX:1 
is conditioned on invocation through notice to other Members of a proposed action under Article XIX.  
125. Without such notice, a Member is not seeking legal authority pursuant to Ar ticle XIX to 
suspend an obligation or to withdraw or modify a concession and may not take the proposed action 
"in accordance with " that provision.  
126. The third sentence of Article XIX:2 also supports the interpretation that invocation is a 
condition pre cedent for action under Article XIX. The third sentence of Article XIX:2 provides a 
limited exception  to the consultation requirement. Notably, this exception does not permit Members 
to take action without providing "notice. " This exception to the consulta tion requirement – but not 
the notice requirement – establishes that Article XIX requires a Member to invoke through notice its 
right to take a safeguard action as a condition precedent to action under that provision.  
127. The terms of Article XIX:3 of the  GATT 1994 also show that invocation is a precondition for a 
Member 's exercise of its right to take action under Article XIX and to the application of safeguards 
rules to that action. Under this provision, if the consultations envisioned by Article XIX:2 f ail to 
address the concerns of affected Members, affected Members can suspend substantially equivalent 
concessions or other obligations. These envisioned consultations are triggered by the invocation and 
notice provision under Article XIX:2, underscoring t hat invocation through notice is a condition 
precedent to action under Article XIX.  
128. Numerous provisions of the GATT 1994 contemplate a Member affirmatively exercising the 
right to modify or withdraw a tariff concession or to suspend an obligation thr ough invocation. In 
addition, rebalancing provisions in other WTO agreements reflect a similar structure by which a 
Member may invoke the right to modify or withdraw a tariff concession or to suspend an obligation. 
These provisions of the GATT 1994 and oth er WTO agreements are an important context for 
interpreting Article XIX.  
129. The Safeguards Agreement, which provides context for Article XIX of the GATT 1994, also 
supports that invocation of Article XIX through written notice is a condition precedent t o a Member 's 
exercise of its right to take action under Article XIX. Both Article 1 and Article  11.1(a) refer to Article 
XIX in its entirety in describing, respectively, the scope of application for the rules established in the 
Safeguards Agreement and whe n a Member may take or seek any emergency action on imports of 
particular products as set forth in Article XIX of GATT 1994. By referring to Article XIX in its entirety 
– including the requirement of invocation through notice set forth at Article XIX:2 – Article 1 and 
Article 11.1(a) of the Safeguards Agreement support that 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.  
130. Article 11.1(c) of the Safeguards Agreement also supports that invocation of Article XIX is a 
necessary precondition to a Member 's exercise of its right to take action under Article XIX and the 
application of safeguards rules to that action. This provi sion states in relevant part that the 
Safeguards Agreement "does not apply to measures sought, taken or maintained by a Member 
pursuant to provisions of GATT 1994 other than Article XIX. " This provision is context which confirms 
that the Member adopting a measure decides what type of mechanisms for otherwise GATT -
inconsistent measures are applicable.  
131. Turkey attempts to dismiss the requirement to give notice in Article XIX as a proced ural 
requirement, comparing the requirement to the publication requirement in Article 3.1 of the WT/DS561/R/Add.1  
 
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  Safeguards Agreement. Turkey 's attempt to compare the notice requirement in Article XIX to the 
publication requirement in the Safeguards Agreement is unavailin g.  
132. Article 1 of the Safeguards Agreement provides that the Agreement "establishes rules for the 
application of safeguard measures which shall be understood to mean those measures provided for 
in Article XIX of GATT 1994 ." Therefore, requirements that  are set forth only in the Safeguards 
Agreement cannot address whether a measure is one "provided for in Article XIX of GATT 1994 " and 
are fundamentally different from the requirement to give notice in writing in Article XIX.  
C. Here, the United States di d not invoke Article XIX and therefore the 
Safeguards Agreement does not apply.  
133. Here, the United States has not invoked Article XIX. Further, the United States has invoked a 
WTO right to take a measure, namely under Article XXI, a completely differen t provision of the GATT 
1994. Turkey does not dispute these key facts. Nonetheless, Turkey claims that safeguards 
disciplines are applicable, arguing that safeguards disciplines apply when a measure has the 
"constituent features " identified in the Appellat e Body report in Indonesia – Iron or Steel Products . 
Turkey continues to fail to recognize the unusual circumstance addressed by that report and even 
that the report did not purport to identify all of the conditions precedent for application of the 
safegua rds disciplines.  
134. The Appellate Body did not address the requirement to give notice in Article XIX in any detail, 
because in fact Indonesia sought to invoke its rights under Article XIX . Turkey 's argument is simply 
unavailing.  
D. Turkey 's approach cannot be sustained in light of the relevant context of 
the DSU.  
135. Turkey 's approach also cannot be sustained under an interpretation in light of the relevant 
context of the DSU. Pursuant to DSU Articles 11 and 3.2, panels are to interpret a nd apply relevant 
provisions of WTO covered agreements in accordance with the customary rules of interpretation of 
public international law. Those rules are reflected in Articles 31 to 33 of the Vienna Convention on 
the Law of Treaties  (Vienna Convention).  Article 31(1) provides that a treaty shall be interpreted in 
accordance with the ordinary meaning of the terms of the treaty in their context and in light of the 
treaty 's object and purpose.  
136. As the WTO Agreement is a single undertaking, the DSU is re levant context for interpreting 
the terms of GATT 1994 Article XIX and the Safeguards Agreement within the meaning of Vienna 
Convention Article 31. In particular, the DSU establishes detailed procedures for a Member seeking 
to address perceived violations of obligations in the WTO covered agreements. Here, Turkey 's 
approach directly conflicts with DSU Article 23 (Strengthening of the Multilateral System).  
137. If a Member believes that another Member 's measure is inconsistent with a WTO obligation, 
DSU Art icle 23 makes clear that the method to address such a concern is through recourse to the 
procedures of the DSU.  
138. Turkey 's approach – that a Member can deem another Member 's measure a safeguard 
measure and, on that basis, adopt retaliatory measures – is plainly contrary to the text of Article  XIX 
and the Safeguards Agreement considered in light of the relevant context of DSU Article 23.   
E. Under Turkey 's approach, any measure that breaches a Member 's GATT 
obligations can be construed as a safeguard meas ure and give rise to a 
"right " to "rebalancing " for another Member. Such an argument risks 
undermining the legitimacy of the WTO and its dispute settlement system.  
139. Under Turkey 's argument, any measure that breaches a Member 's GATT obligation can be 
construed as a safeguard measure and give rise to a "right" to "rebalance " for another Member. In 
particular, Turkey argues that it has the right to take retaliatory measures because certain U.S. 
Section 232 measures allegedly "suspend , in whole or in part,  a GATT obligation " or "withdraw … a 
GATT concession. " Turkey adds an argument that the U.S. Section 232 measures present the second 
"constituent feature " because, in its view, Section 232 measures "pursue the 'specific objective ' of WT/DS561/R/Add.1  
 
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  preventing or remedying serious injury to the domestic industry. " This second alleged feature, 
however, provides no meaningful limitation on Turkey 's position on a unilateral right to retaliate for 
an alleged breach of the GATT 1994. Almost any trade -related measure will have some effects with 
respect to domestic industries. " And here, it is Turkey itself that is attributing such a "design " to the 
U.S. measures.  
140. Contrary to Turkey 's contentions, if a Member imposes duties on a non -MFN basis or in excess 
of its tariff bindings, and it does not invoke Article XIX, then the Member would simply be in breach 
of its GATT obligation. Other Members could then seek to impose countermeasures following 
recourse to multilateral dispute settlement rules. That i s how the system is designed to work, as 
evident from the DSU.  
141. Instead, it is Turkey 's proposed approach that risks undermining the legitimacy of the WTO 
and its dispute settlement system. In such a system, any Member could determine, for itself, tha t 
almost any measure was an action taken under Article XIX, and adopt retaliatory measures as so -
called "rebalancing " measures.  
III. EVEN IF THE SAFEGUARDS AGREEMENT WAS APPLICABLE, TURKEY HAS NO BASIS 
FOR ASSERTING THAT ITS ADDITIONAL DUTIES MEASURE IS A UTHORIZED BY 
ARTICLE 8.2 OF THE SAFEGUARDS AGREEMENT BECAUSE THE UNITED STATES HAS 
NOT ADOPTED A "SAFEGUARD MEASURE " 
142. As the United States has just explained, the Safeguards Agreement does not apply because 
the United States has not invoked its right t o apply a safeguard. However, even if the Panel were to 
apply safeguards disciplines, Turkey 's justification would.  
143. Contrary to Turkey 's claim, a measure taken pursuant to Article XXI cannot fall within the 
scope of the Safeguards Agreement, and this interpretation is clearly supported by the text of the 
Safeguards Agreement.  
144. The United States recalls that the Safeguards Agreement only applies to measures taken 
pursuant to Article XIX of the GATT, as confirmed in Article 11.1(c) of the Agreement.  Under that 
provision, only measures sought, taken, or maintained pursuant to Article XIX fall within the scope 
of the Safeguards Agreement. Where a Member invokes Article XXI (a provision of GATT 1994 other 
than Article XIX) as the basis for its action, t he Safeguards Agreement "does not apply. "  
145. In attempting to argue that Article 11.1(c) does not preclude the application of the Safeguards 
Agreement, Turkey suggests an understanding of the terms "sought, taken or maintained " that 
primarily focuses on  the temporal aspects of these terms. However, Article 11.1(c) confirms that the 
Safeguards Agreement "does not apply " to such measures, and the terms "sought, taken or 
maintained " are not simply temporal in nature. Further, these terms confirm that the Sa feguards 
Agreement does not constrain a Member 's ability to take action – or to seek to take action, or to 
maintain action – pursuant to provisions of the GATT 1994 other than Article XIX, such as Article  XXI. 
146. The ordinary meaning establishes that Art icle 11.1(c) is triggered – and the Safeguards 
Agreement "does not apply " – when a Member acts (by seeking, taking, or maintaining a measure) 
pursuant to a provision of the GATT 1994 other than Article XIX.  
147. The U.S. Section 232 measures cited by Turk ey were sought, taken or maintained pursuant 
to Article XXI of the GATT 1994 – which is a provision "other than Article XIX "; accordingly, by the 
plain text of the Safeguards Agreement, the Section 232 measures cited by Turkey simply do not 
fall within the  scope of the Safeguards Agreement. Therefore, no "right" of "rebalancing " can arise 
for another Member, including Turkey.  
148. Therefore, the exercise of the right – through invocation – to take action under Article XIX is 
a precondition not only for a measure to constitute a safeguard but for another Member to implement 
a rebalancing measure under Article 8.2. Because the United States has not sought to exercise a 
right to exceed its tariff bindings through Article XIX, no "right" to "rebalancing " can arise for another 
Member.  WT/DS561/R/Add.1  
 
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  EXECUTIVE SUMMARY OF THE U.S. CLOSING STATEMENT AT THE PANEL 'S 
VIDEOCONFERENCE WITH THE PARTIES  
149. Given Turkey 's comment in its closing statement about Article 12.8 of the Safeguards 
Agreement – that the United States has not provided a response to Turkey 's argument regarding 
this provision – we would like to address this issue briefly before turning to ou r prepared remarks.  
150. Turkey points to the counter -notification provision as undermining the U.S. argument that 
invocation is a condition precedent for the applicability of safeguards disciplines. That is not the 
case. We want to draw your attention to  the text of Article 12.8. It reads "…all laws, regulations, 
administrative procedures and any measures or actions dealt with in this Agreement  that have been 
notified by other Members that are required by this Agreement  to make such notifications. " As the  
words "dealt with in this Agreement " and "required by this Agreement " make clear, this provision 
relates only to notifications that Members are required to make under the Safeguards Agreement. 
By its terms, this provision does not envision a Member notify ing the Committee on Safeguards of 
another Member 's invocation pursuant to Article XIX:2 of the GATT 1994.  
151. Further to that, Article 12.8 permits counter -notification where a measure or action is required 
to be notified under the Safeguards Agreement.  Article 12.1 requires notification of "taking a decision 
to apply " a "measure ". That is not the same thing as giving notice of a proposed suspension, 
modification or withdrawal of a WTO obligation or concessions under Article XIX of the GATT 1994.  
152. The United States will close by elaborating on two key issues. First, with regard to the point 
on the exercise of a right  under Article XIX of the GATT 1994,  the Panel has asked whether 
characterizing the application of a safeguard as the exercise of a "right" means that it is solely for a 
Member to decide to trigger the applicability of the WTO rules on safeguards to its measure. "  
153. As an initial matter, the United States would note that characterizing the invocation of the 
WTO safeguards provisions as a right flows directly from the text of Article XIX. To recall, Article  XIX 
states that a Member "shall be free " to take a safeguard action, subject to certain conditions. This 
is a language of rights, as opposed to language of obligations.  
154. The starting point, which Turkey continually ignores in all its argumentation, is that any 
measure involved in a safeguards situation is already disciplined. In fact, the measure is highly 
disciplined – it is inconsistent with an obligation set out in  the GATT 1994. Further, the Member 
wishing to adopt the measure must acknowledge this inconsistency, and seek permission to suspend 
the obligation through its invocation of Article XIX. Thus, with or without  an invocation of the right 
to try to obtain tem porary permission to suspend a GATT obligation, the measure sought to be taken 
is, by definition, inconsistent with GATT obligations.  
155. It is only the Member that wishes to adopt a safeguard that can choose to attempt to exercise 
the right, and thereby  choose to enter into the process of trying to obtain the temporary permission 
to suspend the relevant obligation. That process involves consultations with other trading partners. 
And, of special interest to Turkey in this dispute, the process can lead to rebalancing measures if no 
agreement is reached in those consultations.  
156. Despite the clear language in Article XIX, Turkey is unwilling to acknowledge that invocation 
of the safeguards provisions is the right of the Member wishing to adopt a safeguard . Ignoring the 
text, Turkey tries to frame the issue in terms of fairness. According to Turkey, it must have the 
"right to rely on Article 8 " or the "right to rebalance ". Otherwise, what is a Member in Turkey 's 
position to do?  
157. The answer, however, is  simple – Article XIX does not provide special, super penalties for 
certain types of measures; rather the measures involved under Article XIX are essentially just 
breaches of the GATT 1994. And the right to take a rebalancing measure is not a general one 
involving breaches of GATT obligations, it only applies in the specific context of the proceedings 
described in Article XIX, following the invocation of those procedures by the Member seeking to 
adopt a safeguard.  
158. Accordingly, as for any asserted brea ch of the GATT 1994, Turkey has a clear path for relief – 
namely, to pursue dispute settlement under the DSU. In fact, Turkey has done so by bringing a WT/DS561/R/Add.1  
 
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  separate dispute. So in the situation in this dispute, there is no unfairness to Turkey. As for any 
Memb er claiming a breach of a WTO obligation, Turkey must wait for a decision in the separate 
dispute it has brought against the United States concerning those measures before  taking retaliatory 
action. Turkey does not like this answer. But this is how the sys tem is designed to work.  
159. We will now turn to the systemic implication of  Turkey 's position that a Member may 
unilaterally decide that another Member 's measure is an action taken under Article XIX, may 
unilaterally decide that that measure is inconsistent with the safeguards disciplines, and may 
immediately and unilaterally retaliate against that measure. Under Turkey 's approach that the 
safeguards disciplines apply to any measure that presents two "constituent features ", almost any 
measure tha t is alleged to be WTO -inconsistent could fall within the safeguards disciplines and allow 
for such retaliation.  
160. Turkey 's approach would fundamentally reverse the basic rule, as stated in the DSU, that no 
Member shall unilaterally declare another Mem ber in breach of the WTO and unilaterally adopt 
retaliatory measures without first proceeding with dispute settlement. It is difficult to imagine any 
outcome more corrosive to the operation of the WTO system.  
EXECUTIVE SUMMARY OF U.S. RESPONSES TO THE PAN EL'S QUESTIONS AFTER THE 
PANEL 'S VIDEOCONFERENCE WITH THE PARTIES  
Excerpt from U.S. Response to the Panel Question 78  
161. The ordinary meaning of the terms in Article 11.1(c) can be understood as "measures [that a 
Member has] tried to do, succeeded in doi ng or caused to continue in accordance with provisions of 
the GATT 1994 other than Article XIX. " The ordinary meaning of these terms establishes that Article 
11.1(c) is triggered – and the Safeguards Agreement "does not apply " – when a Member acts 
(by seeking, taking or maintaining a measure) pursuant to  a provision of the GATT 1994 other than 
Article XIX. This result is confirmed by the negotiating history of the Safeguards Agreement.  
162. In particular, although early draft text of the Safeguards Agreeme nt would have permitted 
Members to take safeguard measures under Article XIX "only in a situation in which other GATT 
provisions do not provide remedies ", this approach was abandoned by July 1990, when the draft 
text was changed to provide that the agreeme nt "do[es] not prejudice " a Member 's ability to take 
action pursuant to provisions of the GATT 1994 other than Article XIX. As the July 1990 draft 
Agreement on Safeguards provided in relevant part:  
The provisions of paragraph 1 [defining a safeguard measur e] above 
do not prejudice  the rights and obligations of contracting parties 
regarding trade -restrictive measures taken in conformity with 
specific provisions of the General Agreement other than Article XIX, 
protocols, and agreements and arrangements negoti ated under the 
auspices of GATT.  
163. Although the phrasing and placement of this provision changed as the negotiations went along, 
subsequent drafts of the Safeguards Agreement continued to reflect negotiators ' underlying intent 
to prevent the terms of th e Safeguards Agreement from prejudicing Members ' rights under other 
GATT provisions. As the October 1990 draft text stated in relevant part:  
No trade -restrictive measure shall be sought or taken by a 
contracting party unless  it conforms with the provision s of Article 
XIX as interpreted by the provisions of this agreement, or is 
consistent with other provisions of the General Agreement , or 
protocols and agreements or arrangements concluded within the 
framework of the General Agreement.  
 
164. With this text,  the October 1990 draft continues to make clear – like the July 1990 draft – 
that the availability of Article XIX as a release from obligations does not constrain a Member 's ability 
to take action pursuant to other provisions of the GATT 1994. So much is c lear based on the use of 
the word "or" in the draft text quoted above, which confirms that Members could seek or take trade -WT/DS561/R/Add.1  
 
- 35 - 
 
  restrictive measures that were either in conformity with Article XIX or consistent with other 
provisions of the General Agreement (i ncluding Article XXI).  
165. The same meaning is clear in the December 1991 draft Safeguards Agreement, in which the 
text that became Article 11.1(c) was moved, rephrased, and divided into parts, to read in relevant 
part: 
(c) Measures sought, taken or maint ained by a contracting party 
pursuant to other provisions of the General Agreement, or protocols 
and agreements or arrangements concluded within the framework 
of the General Agreement are not included in the scope of this 
agreement.  
 
166. Subparagraph (c) of the December 1991 draft is similar to Article 11.1(c), particularly its 
reference to measures "sought, taken or maintained . . . pursuant to " other provisions of the General 
Agreement. By referring to measures sought, taken, or maintain ed "pursuant to " other provisions 
of the General Agreement – a change from the October 1990 draft 's reference to measures 
"consistent with " other provisions of the General Agreement, and the July 1990 draft 's reference to 
measures "taken in conformity with " specific provisions of the General Agreement – the December 
1991 draft Safeguards Agreement underscores that the Safeguards Agreement doe s not apply to 
measures that a Member has tried to do, succeeded in doing or caused to continue in accordance 
with provisions of the GATT 1994 other than Article XIX.  
167. In the final text of the Safeguards Agreement, this text was again rephrased to emph asize 
this point. Specifically, the December 1991 draft language stating that measures sought, taken, or 
maintained pursuant to other provisions of the GATT 1994 "are not included in the scope of " the 
Safeguards Agreement was replaced with a more definite statement that the Safeguards Agreement 
"does not apply " to such measures. By stating that the Agreement "does not apply " to such 
measures, this final text makes even clearer that a Member 's ability to seek, take, or maintain 
safeguard measures does not co nstrain a Member 's ability to take such action pursuant to other 
provisions of the GATT 1994, such as Article XXI. And that where a Member has sought, taken or 
maintained action pursuant to an "other provision of the GATT 1994, " as the United States has 
explained, the Safeguards Agreement "does not apply. " 
Excerpt from U.S. Response to the Panel Question 96  
168. A Member 's exercise of the right to take emergency action by invoking Article XIX of the GATT 
1994 is conceptually distinct from the specific notif ication requirements provided in the Safeguards 
Agreement. Furthermore, while Article XIX invocation through notice and Article 12 notifications are 
conceptually distinct, a Member 's notification under Article 12 may serve to inform other Members 
of a deci sion to invoke Article XIX .  
169. In this dispute, however, the conceptual distinction does not appear relevant, because it is 
undisputed that the United States did not invoke its right under Article XIX, nor – since the 
Safeguards Agreement is inapplicabl e – did the United States provide any of the specific notifications 
set out in the Safeguard Agreement.  
170. For context, the United States notes that the distinction might be relevant in a situation where, 
for example, a Member invoked Article XIX by pro viding the notice in writing under Article XIX:2, 
but did not meet all of the notification requirements under Article 12 of the Safeguards Agreement. 
In that hypothetical situation, the Safeguards Agreement would apply, but another Member might 
raise an is sue with respect to compliance with a specific aspect of Article 12.  WT/DS561/R/Add.1  
 
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  ANNEX B -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TÜRKIYE  
1 INTRODUCTION  
1.1. This integrated executive summary contains the arguments presented by the Republic of Türkiye 
(Türkiye) in its written submissions, oral statements, responses to questions, and co mments on the 
United States ' responses in the present proceedings.  
1.2. In this dispute, the United States challenges duties imposed by Türkiye on certain United States 
goods in June and August 2018. These duties were imposed by Türkiye in response to safe guard 
measures on steel and aluminium products that were introduced by the United States in March 2018 
and subsequently modified on several occasions, including by increasing the additional duties on 
steel products from Türkiye in August 2018.1  
1.3. When  a WTO Member takes a safeguard measure, Article XIX of the General Agreement on 
Tariffs and Trade (GATT 1994) and the Agreement on Safeguards explicitly contemplate that other 
affected Members may impose trade restrictions on the Member imposing the safeg uard, in order to 
restore a balance of equivalent concessions. This is precisely the purpose of the Turkish measures 
at issue in this dispute.2 
1.4. The United States adopted its safeguard measures without complying with its obligation under 
Article XIX o f the GATT 1994 and the Agreement on Safeguards, including, in particular, the 
obligation to take into account the trade interests of affected WTO Members. The United States also 
failed to comply with the basic duty to hold consultations, as required by Ar ticle 12.3 of the 
Agreement on Safeguards, in order to seek agreement on compensation.3 
1.5. Thus, Türkiye had no choice other than to proceed to the suspension of equivalent concessions 
in order to defend its legitimate economic interests. The additional  duties adopted by Türkiye that 
are being challenged by the United States in the present proceedings constitute this suspension of 
equivalent concessions. Türkiye duly notified these actions and their legal basis to the WTO 
membership.4 Hence, the United States, along with the rest of the WTO membership, was fully aware 
of Türkiye's approach to this matter.5 
1.6. The United States has brought its claims in the present dispute under Articles I and II of the 
GATT 1994. As such, the United States' complaint in this dispute suffers from a fundamental flaw. 
The proper legal basis for this dispute is the WTO legal regime governing safeguard measures. 
Article  8 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 establish an 
affirmative right  of any WTO Member(s) affected by a safeguard measure to obtain compensation 
from the importing Member or, in case compensation is not agreed upon, to suspend equivalent 
concessions.6 
1.7. The United States argues that the measure at issue is not a safeguard measure and that, 
therefore, neither its additional duties nor the Turkish additional duties fall under the Agreement on 
 
1 Türkiye 's First Written Submission, paras. 1.1 -1.2. 
2 Türkiye 's First Written Submission, para. 1.2.  
3 Türkiye 's First Written Submission, para. 1.4.  
4 See Immediate Notification under Article 12.5 of the Agreement on Safeguards to the Council for 
Trade in Goods of Proposed Suspension of Concessions and Other Obligations referred to in Paragraph 2 of 
Article 8 of the Agreement on Safeguards, G/L/1242, G/SG/N/ 12/TUR/6, 22 May 2018; Immediate Notification 
under Article 12.5 of the Agreement on Safeguards to the Council for Trade in Goods of Proposed Suspension 
of Concessions and Other Obligations referred to in Paragraph 2 of Article 8 of the Agreement on Safegu ards, 
G/L/1242/Suppl. 1, G/SG/N/12/TUR/6/Suppl.1, 15 August 2018, See also Türkiye 's First Written Submission, 
para. 1.6.  
5 Türkiye 's First Written Submission, para. 1.5.  
6 Türkiye 's First Written Submission, para. 1.7.  WT/DS561/R/Add.1  
 
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  Safeguards or Article XIX of the GATT 1994. As the United States has not brought its claims under 
the correct legal provisions of the c overed agreements, those claims should be dismissed in toto .7 
1.8. Where Article XIX of the GATT 1994 and the Agreement on Safeguards apply, no direct stand -
alone claims under Articles I and II (or XI) of the GATT 1994 may be brought. This is because, under 
Article XIX:1(a) of the GATT 1994, Members are "free … to suspend [any GATT] obligation in whole 
or in part or to withdraw or modify the concession". In these circumstances, claims under Articles I, 
II, and XI are merely subsidiary claims. A  violation of these provisions may be found only after an 
assessment of claims under Article XIX of the GATT 1994 and the Agreement on Safeguards.8  
1.9. The United States attempts to circumvent these basic rules by arguing that the applicability of 
the A greement on Safeguards reflects an "affirmative defence" by Türkiye. The United States thus 
argues that, once it has "demonstrated" a violation of Articles I and II of the GATT 1994, it is for 
Türkiye to demonstrate, by way of justification, that its measu res fall under Article XIX of the 
GATT  1994 and the Agreement on Safeguards, and to demonstrate further that its measures comply 
with these obligations.9 
1.10. That is incorrect. The applicability of a particular provision, or of an entire agreement, to a  
measure is a threshold question to be resolved by a panel or the Appellate Body, according to their 
core functions set out in Articles 11 and 17.6 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU). This question of ap plicability of an entire set of 
disciplines (e.g. safeguards) is fundamentally distinct from an "affirmative defence", under which a 
defendant has the burden of demonstrating that its measures comply with the relevant exception.10 
1.11. The United States cannot compensate for its failure to raise safeguards -related claims by 
labelling the provisions of the Agreement on Safeguards as "affirmative defences". Rather, in the 
event that the Panel were to determine – as it should – that both the United States' m easures on 
steel and aluminium and the Turkish measures at issue in this dispute fall under Article XIX of the 
GATT 1994 and the Agreement on Safeguards, the Panel would have no choice but to end its analysis 
at that juncture and to reject the United State s' claims.11 
1.12. Türkiye's integrated executive summary is structured as follows: In Section 2, Türkiye 
summarises the key facts in this dispute. In Section 3, Türkiye summarises the United States ' legal 
claims. In Section 4, Türkiye summarises its own legal arguments. In Section 5, Türkiye summarises 
its conclusions and requests for findings.  
2 FACTUAL BACKGROUND  
2.1 The United States ' Section 232 measures  
2.1. The United States Department of Commerce (DOC) conducted two investigations on the basis 
of Section 232 of the 1962 Trade Expansion Act (Section 232). The nominal purpose of these 
investigations was to determine whether imports of steel and aluminium were entering the United 
States in a manner that impaired the United States ' national se curity. In reality, the investigations 
essentially determined whether increased steel and aluminium imports were injuring, or threatening 
to injure, the profitability of the US steel and aluminium industries.12  
2.2. The reports of these two investigation s form the legal basis for the Presidential Proclamations 
by means of which the President of the United States imposed the United States' import restrictions 
on steel and aluminium products. In total, between March 2018 and August 2018, the President 
issued 11 of these Presidential Proclamations.13 The precise form and extent of the import measures, 
as set out in the Proclamations, evolved over time, as did the list of countries temporarily and then 
definitively exempted from the measures.14 In addition, Türkiye understands that the United States 
 
7 Türkiye 's First Written Submission , para. 1.11.  
8 Türkiye 's First Written Submission, para. 1.16.  
9 Türkiye 's First Written Submission, para. 1.17.  
10 Türkiye 's First Written Submission, para. 1.18.  
11 Türkiye 's First Written Submission, para. 1.20.  
12 Türkiye 's First Written Submission, para. 2.8.  
13 Türkiye 's First Written Submission, para. 2.9.  
14 Türkiye 's First Written Submission, para. 2.9.  WT/DS561/R/Add.1  
 
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  has lifted its steel and aluminium tariffs on Canada and Mexico, based on agreements it concluded 
recently with these Members.15 
2.3. The United States' safeguard measures consist of:  
• additional duties on a wid e range of steel and aluminium products, duties which are 
well above the United States' tariff bindings in the United States' GATT Schedule of 
Concessions;16 
• quantitative restrictions, on steel or aluminium, or both;17 and 
• certain unpublished measure s in the form of voluntary export restraints.18 
2.2 Türkiye 's measures  
2.4. Following the initial imposition of the United States ' safeguard measures in March 2018, Türkiye 
and certain other affected Members informed the United States that they considered these measures 
to be safeguard measures and, therefore, requested an opportunity to consult with the United States 
pursuant to Art icle 12.3 of the Agreement on Safeguards.19 
2.5. Türkiye and other affected Members sought to communicate with the United States on the 
nature of the measures and requested consultations with the United States. However, the United 
States continued to insi st that its measures were not in fact safeguard measures and refused to 
consult so as to maintain substantially equivalent concessions.20  
2.6. Therefore, Türkiye and other affected Members were left with no choice but to exercise their 
right to suspend e quivalent concessions or other obligations. As a result, on 21 May 2018, Türkiye 
notified the Council for Trade in Goods and the Committee on Safeguards to this effect, pursuant to 
Article 12.5 of the Agreement on Safeguards, reserving its right to put int o effect certain additional 
duties as of 21 June 2018.21  
2.7. On 15 August 2018, without further explanation, the United States doubled the duty applicable 
to imports of steel from Türkiye. In response, and in order to maintain a level of substantially 
equivalent concessions, Türkiye was compelled to revise the additional duties so as to reflect the 
increased United States' safeguard duties. As a result, on 15 August 2018, Türkiye notified the WTO 
and other WTO Members that it reserved its right to impose  additional duties in the amount 
equivalent to the amount of the US increased additional duties for Türkiye. Türkiye put these 
 
15 Türkiye 's First Written Submission, para. 2.9.  
16 Türkiye 's First Written Submission, para. 2.6. The measures include: (i) additio nal duty of 25 per cent 
ad valorem that applies to steel products originating in all countries, except Argentina, Australia, Brazil and 
South Korea; (ii) additional duty of 50 per cent ad valorem  that applie d to steel products originating in Türkiye; 
and (iii) additional duty of 10 per cent ad valorem  that applies to aluminium articles originating in all countries, 
except Argentina and Australia. See Presidential Proclamation 9705, para. 8, clause (2) as amend ed; 
Presidential Proclamation 9772; Presidential Proclamation 9704 , para. 7, clause (2), as amended.  
17 Türkiye 's First Written Submission, para. 2.6. The measures include: (i) country -specific quantitative 
limitations on steel goods that apply to Argentin a, Brazil, and South Korea; and (ii) country -specific 
quantitative limitations on imports of aluminium goods that apply to Argentina. See Presidential Proclamation 
9740 clause (1), Annex (Part B); Presidential Proclamation 9759 , paras. 4 -5, clauses (1), (2 ); Presidential 
Proclamation 9758, clause (2), Annex (Part B) . 
18 Türkiye 's First Written Submission, para. 2.6. The measures include various unpublished voluntary 
export restraints, orderly marketing arrangements, and similar measures, such as export mode ration and 
export price monitoring, agreed upon between the United States and certain other WTO Members, such as 
Australia, Argentina, Brazil, Canada, Mexico, and South Korea. See Presidential Proclamation 9740 para. 4; 
Presidential Proclamation 9759, para s. 4-5; Presidential Proclamation 9758, para. 5; Presidential Proclamation 
9893 of 19 May 2019, paras. 4 -6; Presidential Proclamation 9894 of 19 May 2019, paras. 5 -7; Joint Statement 
by the United States and Canada on Section 232 Duties on Steel and Alumin ium; and Joint Statement by the 
United States and Mexico on Section 232 Duties on Steel and Aluminium.  
19 Türkiye 's First Written Submission, para. 2.11.  
20 Türkiye 's First Written Submission, paras. 2.12 -2.16. 
21 Türkiye 's First Written Submission, para. 2.16. WT/DS561/R/Add.1  
 
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  measures into effect on the same day, with respect to the same products that were subject to the 
initial set of suspensions of co ncessions.22 
2.8. On 21 May 2019, the United States announced that it was reducing the steel duty safeguard 
applicable to Türkiye from 50 per cent back to the original level of 25 per cent. Effectively, this 
meant that the United States returned the safeg uard duties back to the level they had been prior to 
August 2018. Subsequently, Türkiye also reduced its additional duties effective as of 21 May 2019, 
to the level prior to 15 August 2018.23 
3 SUMMARY OF THE UNITED STATES' CLAIMS UNDER ARTICLES I:1, II:1(A) AND II:1(B) 
OF THE GATT 1994  
3.1. The claims placed before the Panel by the United States are based on Articles I:1, II:1(a) and 
II:1(b) of the GATT 1994.  
3.2. First, the United States argues that Türkiye has acted inconsistently with the most -favoured -
nation treatment obligation in Article I:1 of the GATT 1994, because it has imposed the additional 
duties on the United States alone, but has not imposed any such additional duties on any other 
Member.24  
3.3. Second, the United States further argue s that Türkiye violates Article II:1(b), first or second 
sentence, and consequentially Article II:1(a). Under Article II:1(b), first sentence, the United States 
claims that Türkiye has exceeded its tariff bindings. Under Article II:1(b), second sentence, t he 
United States claims that Türkiye is applying other duties and charges not recorded in Türkiye's 
GATT Schedule.25 Finally, the United States asserts that, " [s]ince Article II:1(b) proscribes the type 
of measures that are equally inconsistent with Artic le II:1(a), in demonstrating a breach of the 
former, the United States also established a breach of the latter ".26  
3.4. As Türkiye demonstrates below, none of the provisions invoked by the United States is 
applicable to Türkiye's measures. Instead, these  measures fall under Article XIX of the GATT 1994 
and under the Agreement on Safeguards, because they reflect a suspension of equivalent 
concessions within the meaning of Article 8 of the Agreement on Safeguards and Article XIX:3(a) of 
the GATT 1994. This is because, in turn, the measures on steel and aluminium imposed by the United 
States are safeguard measures within the meaning of Article XIX of the GATT 1994 and the 
Agreement on Safeguards.  
4 TÜRKIYE 'S LEGAL ARGUMENTS  
4.1 The United States ' Section 232  measures are safeguard measures within the meaning 
of Article XIX of the GATT1994 and the Agreement on Safeguards  
4.1.1  Summary of the Appellate Body 's standard for determining the existence of a 
safeguard measure  
4.1. The term "safeguard measure" is not explicitly defined in the text of WTO covered agreements. 
According to Article 1 of the Agreement on Safeguards, the agreement contains rules "for the 
application of safeguard measures which shall be understood to mean those measures provided for 
in Articl e XIX of GATT 1994 " (emphasis added). The existence of a safeguard measure within the 
meaning of Article 1 and Article XIX of the GATT 1994 is thus a threshold issue. A panel is required 
to make that determination independently and on an objective basis. A s prior cases demonstrate, a 
panel may decide independently whether a measure constitutes a safeguard measure even when 
both parties agree that the measure is a safeguard measure.27 
4.2. Given the absence of an explicit definition in the text of the WTO a greements, the governing 
standard for determining whether a measure is a safeguard measure is the standard clarified by the 
 
22 Türkiye 's First Written Submission, paras. 2.18 -2.19. 
23 Türkiye 's First Written Submission, para.  2.20. 
24 United States' First Written Submission, paras. 22 -38. 
25 United States' First Written Submission, paras. 39 -55. 
26 United States' First Wr itten Submission, para. 53.  
27 Türkiye 's First Written Submission, para. 4.7.  WT/DS561/R/Add.1  
 
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  Appellate Body in Indonesia – Iron or Steel Products . The Appellate Body has identified the following 
two definitional criteria for the existence of a safeguard measures:  
• The "measure must suspend, in whole or in part, a GATT obligation or withdraw or 
modify a GATT concession";28 and 
• The "suspension, withdrawal, or modification in question must be designed to 
prevent or remedy serious injury to the Member's domestic industry caused or 
threatened by increased imports of the subject product".29  
4.3. The Appellate Body has provided specific guidance on the second element. Thus, the Appellate 
Body has emphasized that, for a  WTO safeguard to exist, the suspension of a GATT obligation "must 
be designed to pursue a specific objective , namely preventing or remedying serious injury to the 
Member's domestic industry".30 The Appellate Body also stated that there must be a "demonstrable 
link" between the obligations being suspended, on the one hand, and the objective of preventing or 
remedying serious injury to the domestic industry, on the other hand.  
4.4. Whether this l ink exists should be examined by the Panel in order to determine which aspects 
are "the most central" to the measure.31 In determining these "most central" aspects, the Appellate 
Body noted that a panel should "evaluate and give due consideration to all r elevant factors". These 
"relevant factors" include the manner in which the measure is characterized under the domestic law 
of the Member concerned, the domestic procedures that led to the adoption of the measure, and 
any relevant notifications to the WTO C ommittee on Safeguards.  At the same time, the Appellate 
Body added that "no one such factor is, in and of itself, dispositive of the question of whether the 
measure constitutes a safeguard measure".32  
4.5. As Türkiye explains below, the United States' me asures satisfy both prongs of the Appellate 
Body's test. The measure suspends or withdraws concessions, and this suspension is designed to 
prevent or remedy serious injury. As a threshold point, Türkiye first addresses an important systemic 
point raised in  the United States' submission, i.e., the United States ' self-invocation theory.  
4.1.2  Contrary to the United States ' arguments, whether a measure is a safeguard 
measure is to be determined on the basis of an objective analysis  
4.1.2.1  The United States ' self-invocation theory is inconsistent with Article 11 of the DSU  
4.6. Throughout this dispute, the United States has argued that its measures on steel and aluminium 
are not safeguard measures. This is because the United States did not intend for these mea sures to 
fall under WTO safeguard rules and because it has not labelled these measures as "safeguard" 
measures for purposes of domestic law. The United States has also argued that, in order for the 
Safeguard Agreement to apply, a Member must "invoke" the W TO safeguard rules by submitting a 
notification to the WTO Safeguard Committee under Article 12.1 of the Safeguards Agreement.33  
4.7. The United States ' self-invocation theory is fundamentally flawed. It is inconsistent with: (i) the 
explicit rules in Ar ticle 11 of the DSU; (ii) a long -standing approach of the Appellate Body and 
previous panels to determine objectively the applicability of WTO covered agreements to challenged 
measures;34 and (iii) the objective features of "safeguard measures" outlined i n Article XIX:1(a) of 
the GATT 1994, as recently clarified by the Appellate Body in Indonesia – Iron or Steel Products.35 
 
28 Türkiye 's First Written Submission, para . 4.8. See also Appellate Body Report, Indonesia – Iron or 
Steel Products,  para. 5.60.  
29 Türkiye 's First Written Submission, para. 4.8. See also Appellate Body Report, Indonesia – Iron or 
Steel Products , para s. 5.60 and 5.64.  
30 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60 . 
31 Türkiye 's First Written Submission, para. 4.9. See  also Appellate Body Report, Indonesia – Iron or 
Steel Products , paras. 5.56, 5.58, 5.60, 5.64, 5.68, and 5.70.  
32 Türkiye 's First Written Submission, para.4.10. See also Appellate Body Report, Indonesia – Iron or 
Steel Products , para. 5.60.  
33 Türkiye 's First Written Submission, para. 4.20. 
34 Türkiye 's First Written Submission, para. 4.18. 
35 Contrary to its  arguments in these proceedings , the United States noted in Indonesia – Iron or Steel 
Products  that "the Panel was entitled to examine on its own moti on whether the measure at issue constitute[d] WT/DS561/R/Add.1  
 
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  4.8. First, pursuant to Article 11 of the DSU, the determination of whether WTO law applies or which 
specific provisions of WTO law a pply to a given measure does not belong to a Member, under its 
domestic law, but rather to a WTO panel. The panel 's objective assessment focuses on the objective 
features of a measure, such as its design structure and intended operation, rather than on any  
unilateral domestic categorization of the measure.36 The Appellate Body and prior panels have used 
this approach on several occasions to determine the applicability of WTO safeguard rules to the 
measure at issue.  
4.9. For instance, in Indonesia – Iron o r Steel Products , the Appellate Body confirmed that "[a] 
panel's assessment of claims brought under the Agreement on Safeguards may … require a threshold 
examination of whether the measure at issue qualifies as a safeguard measure within the meaning 
of Art icle XIX of the GATT 1994".37 According to the Appellate Body, this assessment is part of a 
panel's duty under Article 11 of the DSU.38  
4.10. This applies regardless of whether the parties disagree on the proper legal characterization. 
Thus, in Dominica n Republic – Safeguard Measures  the complainant characterized the measures at 
issue as safeguard measures, and the respondent contested this characterization.39 In contrast, in 
Indonesia – Iron or Steel Products and India – Iron and Steel Products , all disputing parties  agreed 
that the measures at issue constituted safeguard  measures.40 In both instances , the panel conducted 
its own independent assessment of whether the measures were safeguard measures.  
4.11. Second, in a consistent line of previous dec isions, the Appellate Body and prior panels have 
found that the categorization of a measure under domestic law is not dispositive for its categorization 
under WTO law.41 For instance, in China – Auto Parts , the Appellate Body examined whether a 
specific charge at issue fell under Articles II:1(b) or III:2 of the GATT 1994 and clarified that "a 
degree of caution must be exercised in attributing decisive weight to characteristics that fall 
exclusively within the control of WTO Members , 'because otherwise Members could determine by 
themselves which of the provisions would apply to their charges'".42 In the same case, the Appellate 
Body noted that "the way in which a Member 's domestic law characterizes its own measures, 
although useful, cannot be dispositive of the characterization of such measures under WTO law".43 
4.12. In sum, the United States ' self-invocation theory is inconsistent with Article 11 of the DSU and 
well-settled WTO dispute settlement practice . In the following Section, Türkiye demonstrates that 
this theory also has no basis in WTO safeguard disciplines.  
 
a safeguard measure". This examination can be meaningful only if it is based on objective features of the 
challenged measure, rather than on the regulating Member's subjective, unilateral determination of the l egal 
character of that measure. Türkiye 's First Written Submission, para. 4.18, citing Appellate Body Report, 
Indonesia – Iron or Steel Products , para. 5.28. (emphasis added)  
36 Türkiye 's First Written Submission, para. 4.14. See also Appellate Body Report, US – Large Civil 
Aircraft (2nd complaint) , para. 593 and Appellate Body Report, Canada – Renewable Energy/Canada – Feed-in 
Tariff Program , para. 5.127.  
37 Appellate Body Report, Indonesia – Iron or Steel Products , para . 5.32.  
38 Appellate Body Report, Indonesia – Iron or Steel Products , paras. 5.32 -5.33.  
39 Panel Report, Dominican Republic – Safeguard Measures , paras. 7.23 -7.24, 7.89.  
40 Panel Report, Indonesia – Iron or Steel Products , para. 7.10; and Panel Report, India – Iron and Steel 
Products , paras. 7.29 -7.30.  
41 See Türkiye's response to Panel Question 62; and  Appellate Body Report, US – Corrosion -Resistant 
Steel Sunset Review , footnote 87.  
42 Türkiye's response to Panel Question 22. See also Appellate Body Report, China – Auto Parts , para. 
178. (emphasis added)  
43 The Appellate Body explained as follows:  
 
[A] panel's determination of whether a specific charge falls under Article II:1(b) or Ar ticle III:2 of 
the GATT 1994 must be made in the light of the characteristics of the measure and the 
circumstances of the case. … A panel must thoroughly scrutinize the measure before it, both in 
its design and in its operation, and identify its principal characteristics. Having done so, the panel 
must then seek to identify the leading or core features of the measure at issue, those that define 
its "centre of gravity " for purposes of characterizing the charge that it imposes as an ordinary 
customs duty or a n internal charge.  
 
See Appellate Body Report, China – Auto Parts , para. 178 ; and  Türkiye's response to Panel Question  22. WT/DS561/R/Add.1  
 
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  4.1.2.2  The United States ' self-invocation theory has no basis in WTO safeguard rules  
4.13. One of the key elements of the United  States'  position is that WTO law contains no definition 
of the term "safeguard". Instead, the United  States argues, Article  XIX establishes merely a 
"process" for the invocation of safeguard rules, in which the first step for a regulating Member is to 
notify its meas ure.44  
4.14. This is incorrect. As Türkiye explained in Section 4.1.1, the Appellate Body has identified two 
definitional features of a safeguard measure: (i) the nature of a safeguard (i.e., suspension of a 
GATT obligation); and (ii) its purpose. These features are grounded in the text of Article  XIX:1(a), 
its context, object and purpose, and are also confirmed by the negotiating history of the  Agreement 
on Safeguards.45  
4.15. Nothing in the text of Article  XIX or the  Agreement on Safeguards suggests t hat notice is a 
condition precedent for the applicability of WTO safeguard rules. In reality, the United States appears 
to ignore that in Indonesia – Iron or Steel Products  the Appellate Body drew a bright -line distinction 
between, on the one hand, the obj ective definitional criteria of a safeguard measure, and, on the 
other hand, compliance with the substantive and procedural requirements of a safeguard measure.46 
The "notice" referred to by the United States is not a question of the definition  or the existence  of a 
safeguard measure, but rather a question of compliance  with a procedural rule applicable to 
safeguard measures. Put differently, a failure to notify a safeguard measure does not prevent the 
measure from being a safeguard measure. Instead, a fai lure to notify a safeguard measure is a 
violation of the requirements that a safeguard measure must satisfy in order to be consistent with 
WTO law.  
4.16. To further illustrate the distinction between definition/existence and compliance , consider 
other requ irements under WTO safeguard disciplines. An incorrect or a missing determination of 
unforeseen developments, or increased imports, or serious injury, does not mean that WTO 
safeguard rules do not apply. Rather, the measure is still a safeguard measure as long as it meets 
the definitional criteria explained above. The measure will, however, be inconsistent with Article XIX 
of the GATT 1994 and the relevant provisions of the Agreement on Safeguards.  
4.17. Any other conclusion would lead to unreasonable resu lts. A Member could avoid the 
applicability of potentially onerous rules simply by violating them.47 The same conclusion holds true 
for procedural requirements, as explicitly noted by the Appellate Body.48 It would not be meaningful 
to argue that a safeguard measure for which the importing Member did not comply with the 
procedural requirements of Article 12 of the Agreement on Safeguards ceases to be, for this reason, 
a safeguard measure. In keeping with th is logic, in Indonesia – Iron or Steel Products , the Appellate 
Body referred to notifications to the WTO Committee on Safeguards as a relevant, but not decisive, 
factor in determining the applicability of WTO safeguard rules.49  
4.18. Next, the United Sta tes also relies on the wording of Article 11.1(c) of the Agreement on 
Safeguards to argue that an importing Member can decide unilaterally whether a measure falls within 
the WTO safeguard rules. However, Article 11.1(c) indicates nothing of this sort. Arti cle 11.1 
distinguishes between "emergency action[s] on imports … as set forth in Article XIX of GATT 1994"50, 
and "measures sought, taken or maintained by a Member pursuant to provisions of GATT 1994 other 
than Article XIX"51. The first category refers t o safeguard measures. The second category refers to 
measures taken under other GATT permissive provisions, such as Articles VI, XX, or XXI. According 
to Article 11 of the DSU, whether a measure falls under the scope of Articles 11.1(a) or 11.1(c) must 
 
44 Türkiye 's Opening Statement at the Second Substantive Meeting, para. 2.15. See also United 
States'  second written submission, par as. 52-54. 
45 Türkiye 's Opening Statement at the Second Substantive Meeting, para. 2.18.  
46 Türkiye 's First Written Submission, para. 4.21 ; Türkiye 's Opening Statement at the Second 
Substantive Meeting, para. 2.20.  See also Appellate Body Report, Indonesia  – Iron or Steel Products , para. 
5.57.  
47 Türkiye 's First Written Submission, para. 4.22.  
48 Türkiye 's First Written Submission, para. 4.23. See also Appellate Body Report, Indonesia – Iron or 
Steel Products , para. 5.57.  
49 Türkiye's response to Panel Ques tion 24. See also Appellate Body Report, Indonesia – Iron or Steel 
Products , para. 5.60.  
50 Article 11.1(a)  of the Agreement on Safeguards . 
51 Article 11.1(c ) of the Agreement on Safeguards . WT/DS561/R/Add.1  
 
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  be determined objectively by analysing the design, structure, and expected operation of the 
measure, in particular whether the measure possesses the constituent features of a safeguard 
measure or a "rebalancing measure" within the meaning of Articles XIX or Ar ticle 8.2.52  
4.19. Türkiye 's arguments are also supported by how the  Agreement on Safeguards disciplines 
so-called "grey area" measures. These measures are explicitly prohibited by Article  11.1(b)  of 
the Agreement on Safeguards. The drafters of the  Agree ment on Safeguards decided to regulate 
these "grey area measures" along with "standard" safeguard measures because "grey area" 
measures pursue the same "purpose" as standard safeguard measures. Like standard safeguard 
measures, “grey area” measures are int ended to prevent or to remedy serious injury to the 
regulating Member's  domestic industry, caused or threatened by increased imports. The sole 
difference is that "grey area" measures take forms that differ from the forms of "standard" safeguard 
measures (i .e. import tariffs or import quotas).53  
4.20. As an example, consider voluntary export restraints. These measures do not take the same 
form as standard safeguard measures. Without an explicit rule, voluntary export restraints would 
thus escape the strict ures of the  Agreement on Safeguards. Complainants and treaty interpreters 
would therefore have to go through the effort of searching elsewhere in the covered agreements for 
legal provisions to address these measures. In order to avoid this scenario, the dr afters included 
"grey area" measures within the scope of the  Agreement on Safeguards and prohibited them in 
Article  11.1(b).54 
4.21. Türkiye argues that there are no notification obligations for grey area measures. Because these 
measures are explicitly pr ohibited, Members obviously do not notify them under WTO safeguard 
rules. And yet, WTO safeguard rules, in particular Article  11.1(b), apply to these measures. This 
demonstrates that "notification" is not necessary to trigger the application of the  Agreeme nt on 
Safeguards. If this is true for "grey area" measures, Türkiye fails to see why this should not be the 
case also for standard safeguard measures.55  
4.22. As another contextual argument, Türkiye notes that, based on Article  12.8 of the  Agreement 
on S afeguard, "measures or actions" dealt with in the  Agreement on Safeguards can be 
"counter -notified" by other Members. This scenario can occur only if the importing Member has not 
previously notified these measures, despite its obligation to do so. If the U nited States were correct 
that notification by the importing Member is a constituent feature of a safeguard measure without 
which WTO safeguard rules would not apply, Article 12.8 would have no purpose or logic.56 The 
absence of a notification by the importing Member would mean that the measure would not be a 
safeguard measure. As a result, there would therefore be nothing to "counter -notify", and 
Article  12.8 would never apply.  
4.23. Moreover, the United States in correctly construes the negotiating history of Article XIX and 
the Agreement on Safeguards. The United  States refers to the views of various negotiators as to 
whether a notification under Article XIX had to be submitted prior to taking a safeguard action, or 
after the adoption of this action, especially in critical circumstances in which the measure had to be 
taken urgently.57 However, nothing in these discussions suggests that the various notification 
requirements in Article  XIX (or the  Agreement on Safeg uards)  are one of the constituent features of 
a safeguard measure. On the contrary, during the Uruguay Round, some drafts of the  Agreement 
on Safeguards contained an explicit definition of the term "safeguard measure", which reflected the 
same elements tha t the Appellate  Body has subsequently used to define these measures. This 
confirms that the drafters of the Agreement on Safeguards had a very clear understanding of the 
objective constituent features of a safeguard.58  
4.24. Finally, recall that the Unit ed States  collapses the distinction between the definitional  elements  
of a safeguard measure and the requirements  that a safeguard measure must satisfy. This failure to 
 
52 Türkiye's response to Panel Question 23. 
53 See Article  11.1(b)  of the Agreement on Safeguard; and Türkiye 's Opening Statement at the Second 
Substantive Meeting, para. 2.38.  
54 Türkiye 's Opening Statement at the Second Substantive Meeting, para. 2.39.  
55 Türkiye 's Opening Statement at the Second Substantive Meeting, para. 2.40.  
56 Türkiye 's Opening Statement at the Second Substantive Meeting, paras. 2.24 -2.25.  
57 See, inter alia, United States'  second written submission, paras.  64-74. 
58 Türkiye 's Opening Statement at the Second Substantive Meeting, para. 2.44.  WT/DS561/R/Add.1  
 
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  distinguish between these two concepts undermines the United States ' other arguments. F or 
example, the United  States alleges that the GATT 1947 Working Party in the US – Fur Felt Hats 
dispute defined the term "safeguard measure" and, in so doing, referred to the notification 
condition.59 That is incorrect. Indeed, in that case, both parties  agreed that the measure at issue 
was a safeguard measure. The Working Party, therefore, merely explained the applicable 
requirements under Article  XIX, both substantive and procedural (including notification), and then 
proceeded to analyse the complainant 's claims. Furthermore, the Working Party did not attach any 
particular importance to the notification requirement. The US – Fur Felt Hats report is thus inapposite 
to the dispute at hand.60  
4.1.2.3  The United States measures satisfy the legal definition  of a safeguard measure in 
Article XIX, as interpreted by the Appellate Body  
4.25. The United States' Section 232 measures on steel and aluminum clearly satisfy the two 
definitional features of a safeguard measure, that is: (1) the suspension of concessio ns; and (2) that 
the measure be designed to remedy or prevent serious injury.61 
4.26. The US import measures clearly meet the first definitional criterion of safeguard measures, 
because they " suspend , in whole or in part, a GATT obligation " or " withdraw … a GATT concession " 
of the United States within the meaning of Article XIX:1(a) of the GATT 1994.  
4.27. In particular, the additional duties on steel and aluminium products are inconsistent with Article 
II:1(a), and Article II:1(b), first senten ce, or, in the alternative, Article II:1(b), second sentence, of 
the GATT 1994. This is because these duties impose treatment on the subject products that is less 
favourable than the treatment contemplated in the relevant parts of the United States' GATT 
Schedule. In addition, the quantitative limitations imposed on steel articles originating in Argentina, 
Brazil and South Korea, as well as the quantitative limitations imposed on aluminium articles 
originating in Argentina are clearly inconsistent with, and , therefore, suspend, the United States' 
obligations under Article XI:1 of the GATT 1994.62  
4.28. These import measures also meet the second part of the definition of a safeguard measure, 
because they pursue the "specific objective" of preventing or reme dying serious injury to the 
domestic industry , through the suspension of GATT obligations. This objective is the " most central " 
aspect of these measures.63 To give a few examples:  
• The very purpose of the United States' Presidential Proclamations imposin g the 
import measures on steel and aluminum is to limit imports in a manner that will 
allow the United States' domestic industries to meet the self -defined target of 80 per 
cent capacity utilization.64  
• This economic recovery rationale is also visible i n the reasoning for why certain 
countries were temporarily excluded from the import measures, including "shared 
commitment to addressing global excess capacity for producing steel … [and] the 
robust economic integration between [the United States and those  countries] ".65  
• The Presidential Proclamations were published on the website of the White House 
under the rubric "Economy and Jobs", making it clear that they had been adopted 
with economic concerns in mind.66  
 
59 United States'  second written submission, para.  55. 
60 Türkiye 's Opening Statement at the Second Substantive Meeting, para. 2.48.  
61 Türkiye 's Opening Statement, para. 37. See also Appellate Body Report, Indonesia – Iron or Steel 
Products , para. 5.60.  
62 Türkiye 's First Written Submission, para. 4.49.  
63 Türkiye 's First Written Submission, para. 4.50.  
64 Türkiye 's Opening Statement, para. 37 ; Türkiye 's First Written Submission para. 4.52. 
65 Türkiye 's Opening Statement, para. 37 ; Türkiye 's First Written Submission para. 4.53. 
66 Türkiye 's Opening Statement, para. 37 ; Türkiye 's First Written Submission para. 4.55. WT/DS561/R/Add.1  
 
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  • Both the Section 232 Steel and Alumin ium Reports, which served as a basis for the 
United States' safeguard measures, analyse classical injury factors in order to gauge 
the extent of the injury or threat thereof.67  
• From the President down to the Secretary of Commerce and senior economic 
advisors to the President, the record is replete with tweets, press releases, and public 
statements, such as TV interviews, that confirm, time and time again, that the true 
purpose of the measures is to protect the domestic industry and to ensure its 
continu ed operation and profitability.68 
• Finally, the Joint Statements of the United States and Mexico as well as Canada, 
respectively, which settled their respective WTO disputes with respect to the United 
States' safeguard measures and the rebalancing measures, reveal the fundamentally 
economic nature of the United States' measures. Among many relevant aspects, 
these Joint Statements explicitly stipulate the right of the affected exporting 
countries to take rebalancing measures.69 
4.29. In sum, all of the relevant materials reveal that the measures at issue were designed to pursue 
the "specific objective" of improving the economic health of the domestic steel and aluminium 
industries, and preventing or remedying the injury allegedly caused t o them by increased imports 
of steel and aluminium products. This is no different in any material respect from the objective 
commonly pursued by any safeguard measure.70 
4.30. The senior economic advisor to the President also stated that the measures at i ssue are a 
bargaining chip to extract economic concessions from trading partners. Mr. Kudlow explained on the 
TV station CNBC that negotiations with foreign countries about exemptions from the additional duties 
were linked to reciprocal trade concessions a nd other economic considerations.71  
4.31. The United States ' position in this dispute, as well as in the parallel DS564 proceeding, has 
been that its Section 232 measures on steel and aluminum are concerned with national security, 
and do not pursue any s afeguard -related objectives. The United States, however, appears to conflate 
the meaning of "national security measures" under its domestic law and WTO law. Even if Section 
232 measures on steel and aluminium were to be considered as national security meas ures under 
US domestic law, this does not mean that these measures also satisfy all of the requirements of 
Article  XXI of the GATT 1994. For instance, these measures were not taken "in time of war or other 
emergency in international relations", or, at the very least, the United States failed to identify any 
such emergency. In addition, these measures appear to be very remote from, or even unrelated to, 
any conceivable "emergency", as well as the United States' "essential security interests", as the 
primary objective of these measures is to protect the United States' domestic steel and aluminium 
industries.72    
4.32. To conclude, the US Section 232 measures at issue clearly fall under the scope of WTO 
safeguard rules.  
4.2 Türkiye 's measures are rebalancing  measures under Articles XIX:3(a) of the 
GATT  1994 and 8.2 of the Agreement on Safeguards  
4.2.1  Legal standard under Article 8.2 of the Agreement on Safeguards and 
Article  XIX:3(a) of the GATT 1994  
4.33. Türkiye 's measures at issue are a response to the Un ited States' disguised safeguard measures 
on steel and aluminum. These measures are thus based on, and well -grounded in, the text of 
Article  XIX:3(a) and Article 8.2 of the Agreement on Safeguards.73 
 
67 Türkiye 's Opening Statement , para. 37 ; Türkiye 's First Written Submission paras. 4.56 -4.62. 
68 Türkiye 's Opening Statement, para. 37 ; Türkiye 's First Written Submission paras. 4.52-4.68. 
69 Türkiye 's Opening Statement, para. 37.  
70 Türkiye 's First Written Submission, paras. 4.71-4.72. 
71 Türkiye 's First Written Submission, para. 4.68.  
72 Türkiye's response to Panel Question 88, para. 2.109.  
73 Türkiye 's Opening Statement, para. 34 . WT/DS561/R/Add.1  
 
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  4.34. Under these two provisions, Members are explicitly authorized to take temporary "rebalancing 
measures", to rebalance tariff concessions and other obligations after a safeguard measure has 
distorted the original equilibrium. Based on the text of Articles XIX:3(a) and 8.2, a rebalancing 
measure mu st possess the following key features:  
• First, the rebalancing measure must respond to a safeguard measure. Article 8 refers 
to a situation where "[a] Member [is] proposing to apply a safeguard measure or 
[is] seeking an extension of a safeguard measure".  Article 1 of the Agreement on 
Safeguards makes it clear that the Agreement "establishes rules for the application 
of safeguard measures". Thus, a rebalancing measure is defined as a response to a 
previously imposed or proposed safeguard measure. Put diffe rently, the existence of 
an underlying safeguard measure is a condition precedent for applying a rebalancing 
measure under Article 8.2.74 
• Second, Article 8.2 applies to a particular type of measures, which are "rebalancing 
measures", that is, "the appli cation of substantially equivalent concessions or other 
obligations". The purpose, structure, and operation of the measure must, therefore, 
indicate that it was designed as an Article 8.2 "rebalancing measure". In particular, 
it must be discernible from th e measure itself and its attendant circumstances that 
the measure was designed to, and has been applied so as to, suspend "concessions 
or other obligations" that are "substantially equivalent" to those of the underlying 
safeguard measure. The elements a pa nel may consider under this criterion include:  
o Whether the text of the measure or the text of a notification provided to the 
WTO suggest a link to the underlying safeguard measure;  
o Whether the amount of the retaliation, objectively, is linked to the l evel of 
suspension in the original measure; or  
o Whether the measure has been implemented after the suspending Member has 
attempted to agree, with the Member applying the underlying safeguard 
measure, on trade compensation within the meaning of Article 8.1 .  
• Finally, the third definitional feature of a measure that falls under Article 8.2 is the 
absence of an agreement on trade compensation within the meaning of Article 8.1. 
The absence of an agreement can, of course, be due to any reason, including a 
disagreement about the precise amount of compensation or – as in this case – a 
disagreement about the legal qualification of the underlying measure. Clearly, if an 
agreement has been reached and acted upon, a measure taken by the affected 
Member can no longer  be considered a rebalancing measure.75  
4.35. Thus, Articles 8.2 and XIX:3 may be considered as a special regime ( lex specialis ) that 
prescribes the specific steps that a Member may take when its industry is affected by another 
Member's safeguard action. These steps start with consultations under Article 12.3, and potentially 
end with rebalancing duties. As a result, until a panel  has examined the applicability of the WTO 
safeguard rules and the consistency of the measure with these rules, no finding of violation of either 
Article I or Article II of the GATT 1994 can be made.   
4.2.2  Türkiye 's measures meet the legal test under Art icle 8.2 of the Agreement on 
Safeguards and Article XIX:3(a) of the GATT 1994  
4.36. Türkiye 's measures meet all of the definitional criteria of a rebalancing measure explained in 
paragraph 4.2.1 above. On the first criterion – the condition -precedent of a  prior safeguard measure 
– the United States ' Section 232 measures are safeguard measures. They depart temporarily from 
the disciplines of, inter alia , Articles II:1(a), II:1(b), and XI:1 of the GATT 1994. The "specific 
 
74 Türkiye 's Opening Statement, para. 35; and Türkiye's response to Panel Question 12. 
75 Türkiye's Opening Statement, para. 35; and Türkiye 's response to Panel Question 12 . WT/DS561/R/Add.1  
 
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  objective" of this "suspension" is t o prevent or remedy serious injury to the United States' domestic 
industries, allegedly caused by increased imports.76  
4.37. On the second criterion – the nature of Türkiye 's measures as rebalancing 
measures  – Türkiye's additional duties were notified to  the Council for Trade in Goods and the 
Committee on Safeguards, pursuant to Article 12.5 of the Agreement on Safeguards. These 
notifications explain in detail the amount of rebalancing by reference to the United States ' underlying 
safeguard measures and t he amount of duties imposed by those measures. It is beyond dispute that 
these measures suspend "substantially equivalent concessions or other obligations under 
GATT  1994".77  
4.38. All of the above confirms that the purpose of Türkiye's measures was to " rebalance" 
concessions and other obligations within the meaning of Article 8.2. Moreover, as soon as the United 
States doubled its duties with respect to Türkiye in August 2018, and when it subsequently reduced 
those duties to their original level in May 2 019, Türkiye always mirrored these changes immediately 
in its own duty rates. This further confirms that Türkiye's measures are nothing else than 
"rebalancing" measures within the meaning of Article 8.2. Finally, the measures themselves refer to 
Türkiye's legislation, in particular Law No. 4067, dated 26 January 1995, which implemented the 
WTO covered agreements, including the Agreement on Safeguards, within Türkiye's legal system.  
4.39. Finally, on the third criterion, it is undisputed that no agreement o n trade compensation was 
reached between Türkiye and the United States before Türkiye took its measures. On the contrary, 
the United States refused to even engage in consultations under the Agreement on Safeguards.78  
4.3 Contrary to the United States ' argument, Türkiye 's arguments based on Article XIX of 
the GATT 1994 and the Agreement on Safeguards are not in the nature of an "affirmative 
defence"  
4.40. Another important systemic argument of the United States is the assertion that Türkiye's 
reference to the Agreement on Safeguards is in the nature of an "affirmative defence". In particular,  
the United States has claimed that Türkiye has the burden of proof to demonstrate both the 
applicability of the WTO safeguards regime and the consistency of its measures with the WTO 
safeguards rules. According to the United States, Türkiye is required to  raise and assert WTO 
safeguard rules as an "affirmative defence", in response to the United States' claims of violation. 
Accordingly, the United States' claims of violation need not take into account the WTO safeguard 
rules and the United States was entit led to file this dispute on the basis of provisions of its choice, 
which is Articles I and II of the GATT 1994.79 
4.41. The term "affirmative defence" has a well -established connotation in WTO law. It applies when 
a complainant has successfully establishe d a violation of a WTO legal provision and a responding 
Member seeks to justify that violation by relying on a separate provision. The respondent that raises 
the defence bears the burden to substantiate it. If the respondent fails to satisfy this burden, a  
previously established violation of a WTO provision stands and the defending Member loses. 
However, this is not the situation here. Türkiye and other Members in the parallel disputes have 
argued extensively that this is an incorrect characterization of th e WTO safeguard regime.80  
4.42. Türkiye's reference to the WTO safeguards regime is not an "affirmative defence", because 
WTO safeguard rules do not constitute an "exception" to GATT disciplines. Rather, Members have an 
"autonomous right" to apply a safe guard measure, provided that they meet all of the substantive 
and procedural conditions in Article XIX of the GATT 1994 and the Agreement on Safeguards. Thus, 
in referring to Article XIX of the GATT 1994 and the Agreement on Safeguards, Türkiye does not 
invoke any "exception", but rather  identifies the correct legal regime that applies to the measures 
 
76 Türkiye 's Opening Statement, para. 37; See also Türkiye 's Second Written Submission, 
paras. 2.24-2.30. 
77 Türkiye 's Opening Statement, para. 38; Türkiye 's response to Panel Q uestion 12; see also Türkiye 's 
Second Written Submission, para s. 2.24-2.30. 
78 Türkiye 's Opening Statement, para. 38 . 
79 Türkiye 's First Written Submission, para. 4.3; and Türkiye 's Second Written Submission, para. 2.1 . 
80 Türkiye 's Second Written Submissi on, para. 25 .   WT/DS561/R/Add.1  
 
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  at issue. This regime displaces other GATT provisions, such as Articles I and II, that might have 
applied to Türkiye's measures if the safeguards regime did n ot.81 
4.43. The legal rules applicable to safeguards – as well as the rules applicable to any suspension of 
concessions taken in response to safeguards – therefore, establish independent, autonomous rights, 
not an affirmative defence. Hence, if a WTO Memb er believes that another WTO Member has 
improperly imposed a safeguard measure, or that it has improperly suspended equivalent 
concessions in response to a safeguard measure, it is for the complainant to assert a violation of 
Article XIX of the GATT 1994 a nd the Agreement on Safeguards and to satisfy its burden of proof.82  
4.44. This was explicitly confirmed by, for instance, the panel in Korea – Dairy . The panel stated: 
"[i]n the context of the present dispute, which is concerned with the assessment of t he WTO 
compatibility of a safeguard measure imposed by a national authority, we consider that it is for the 
European Communities [i.e. complainant] to submit a prima facie  case of violation of the Agreement 
on Safeguards, namely, to demonstrate that the Ko rean safeguard measures are not justified by 
reference to Articles 2, 4, 5 and 12 of the Agreement on Safeguards".83 On appeal, the Appellate 
Body appears to have agreed with the panel's allocation of the burden of proof.84  
4.45. The complainant cannot invoke non -applicable provisions, such as Articles I and II of the 
GATT  1994, and require the respondent to demonstrate that the respondent 's measures are justified 
under the Agreement on Safeguards.85 Doing so would be tantamount to circumventing the bas ic 
rules of allocating the burden of proof and the burden of making a prima facie  case. 
4.46. Over twenty years of practice under WTO dispute settlement demonstrates that Türkiye's 
reading of WTO law is correct. Türkiye is not aware of a single instance in  which a complainant has 
challenged a safeguard measure – or a suspension of concessions in response to a safeguard 
measure – simply by invoking Articles I, II, or XI of the GATT 1994, and then expecting the defending 
Member to demonstrate that WTO safegua rds rules apply and have been complied with. Rather, in 
all instances, the complainant presented claims of violation of Article XIX of the GATT 1994 and the 
Agreement on Safeguards. Claims under non -safeguard -specific provisions of the GATT 1994, such 
as Articles I, II, or XI, were – if at all – included for subsidiary purposes.86  
4.47. In keeping with this logic, panels and the Appellate Body in those disputes also first addressed 
the safeguards -related provisions of WTO law and only then, as claims of a  subsidiary nature, other 
non-safeguard -specific provisions of the GATT 1994. This approach was followed, inter alia , in India 
– Iron and Steel Products, where Japan raised claims under both the GATT 1994 and the Agreement 
on Safeguards. The panel in that dispute addressed the non -safeguard -related claims only once it 
had found that India did not meet all applicable requirements of Article XIX of the GATT 1994 and 
the Agreement on Safeguards, and that therefore India could not validly suspend its GATT 
obligations.87 
4.48. The United States itself has previously advanced this proposition. For instance, in US – Wheat 
Gluten , the United States explicitly urged the panel to endorse the above -mentioned finding of the 
panel in Korea – Dairy , which stated that the burden of proof in the context of safeguard measures 
rested with the complainant.88 
4.49. The same logic has also be en followed in the context of other trade remedy disputes, for 
example, disputes concerning anti -dumping measures. In EC – Fasteners (China) , the Appellate 
 
81 Türkiye 's First Written Submission, para. 4.32 . 
82 Türkiye 's First  Written Submission, para. 4.33.  
83 Panel Report, Korea – Dairy , para. 7.24 . 
84 Appellate Body Report, Korea – Dairy , paras. 149, 150; Türkiye 's First Written Submission, para. 
4.34. 
85 Leaving aside the violation of the basic allocation of the burden of proof, this would also require the 
defendant to demonstrate compliance with all conceivable provisions and obligations under Article XIX of the 
GATT 1994 and th e Agreement on Safeguards, whether of a substantive or procedural nature. This would be a 
wholly unworkable standard in practice . See Türkiye 's First Written Submission, para. 4.35.  
86 Türkiye 's First Written Submission, para. 4.36 . 
87 Panel Report, India – Iron and Steel Products , paras. 7.408 -7.409. See Türkiye 's First Written 
Submission, para s. 4.37 -4.38. 
88 Panel Report, US – Wheat Gluten , US arguments, Attachment 2 -5, para. 14 ; Türkiye 's First Written 
Submission, para. 4.40 . WT/DS561/R/Add.1  
 
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  Body found that, until a finding under Article VI and the Anti -Dumping Agreement has been made, 
it is not possible to determine whether a measure violates Articles I and II of the GATT 1994. 
Similarly, in US – Zeroing (Japan) , the Appellate Body found a violation of Article II of the GATT 
1994 only after finding violations of WTO anti -dumping rules.89 
4.50. In the latter case, the Appellate Body described Articles VI and the Anti -Dumping Agreement 
as a "safe harbor" with respect to Articles I and II of the GATT 1994. The term "safe harbor" is 
synonymous with Türkiye 's previous argument: Articles I and II  cannot be said to have been violated 
until the analysis under the anti -dumping rules has been concluded. If the measure is consistent 
with the anti -dumping rules, there is no violation of Articles I and II.90  
4.51. The relationship between Articles I an d II, on the one hand, and Article VI and the 
Anti-Dumping Agreement, on the other hand, is fully analogous to the relationship between general 
GATT obligations and the safeguard rules. Safeguard measures are one of the three types of trade 
remedies, which  are measures that WTO Members may use to counter injurious imports in particular 
circumstances. The use of each of these remedies is governed by specific agreements in Annex 1A 
to the Agreement Establishing the WTO. It would be untenable to argue that one  of these specialized 
agreements, such as the Agreement on Safeguards – but not the other trade remedy agreements – 
contains no positive obligations, but instead contains only exceptions to be invoked and justified by 
the Member choosing to apply trade rem edy measures.91 
4.52. The United States made the deliberate choice not to raise any safeguard -related claims. 
The United States is free to make this choice, but must accept the consequences of that choice. If a 
panel finds the safeguards -related provision s to be applicable, the panel would normally – assuming 
the complainant has properly raised claims under Article XIX and the Agreement on Safeguards – 
assess the consistency of the measure at issue under those provisions.92  
4.53. If the measures are cons istent with those provisions, this necessarily means, by definition,  
that they are also fully consistent with Articles I and II. In contrast, if the measures are inconsistent 
with the safeguard rules, then – as a result – Articles I and II have not been validly suspended and 
can then, but only then , be found to have been vi olated. This means that, until the applicability of, 
and the consistency of the measure with, the WTO safeguard rules has been determined, there 
cannot be a finding of violation of either Article I or Article II.93  
4.54. The legal consequence of the Unit ed States' choice in this dispute is that, should the Panel find 
that Türkiye's measure at issue is in fact a rebalancing measure, and given that the United States 
has not raised any safeguard -related claims, there can be no finding of violation and the me asure is 
presumed to be WTO -consistent. The Panel will thus have to end its analysis at that juncture and 
dismiss the United States' case in toto .94   
4.55. Therefore, the proper legal basis for the United States to bring claims in this dispute is under 
Article XIX:3(a) of the GATT 1994 and Article 8 of the Agreement on Safeguards. Should the Panel 
agree with this position, it must reject the United States' claims under Articles I and II of the 
GATT  1994, because these claims are not based on the correct a pplicable WTO legal provision.95 
 
89 Appellate Body Report, EC – Fasteners (China) , paras. 392 -393; Appellate Body Report, US – Zeroing 
(Japan) (Article 21.5 – Japan) , paras. 200, 209; Türkiye 's Opening Statement, para. 28; and Türkiye 's 
response to Panel Question 36.  
90 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan) , para. 209; Türkiye 's Opening 
Statement, para. 28; and Türkiye 's response to Panel Question 36.  
91 Türkiye 's Opening Statement, para. 30; see also Türkiye 's response to Panel Question 36.  
92 Türkiye 's Opening Statement, para. 24; see also  Türkiye 's response to Panel Question 36 . 
93 Türkiye's Opening Statement, para s. 24-25; see also Türkiye 's response to Panel Question 36.  
94 Appellate Body Report, EC – Sardines , para. 278; Türkiye 's Openin g Statement, para. 27; and 
Türkiye 's response to Panel Question 36.  
95 Türkiye 's First Written Submission, para. 4.42.  WT/DS561/R/Add.1  
 
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  4.4 The United States has failed to include claims under the Agreement on Safeguards and 
Article XIX in its panel request and may, therefore, not raise these claims  
4.56. The United  States has not made out a prima  facie case that Türkiye's  measures are 
inconsistent with the provisions that Türkiye's  measure fall under, that is, Article  8.2 of 
the Agreement on Safeguards and Article  XIX:3(a)  of the  GATT  1994.96  
4.57. The claims put before the Panel by the United  States are  based on Articles  I:1, II:1(a)  and 
II:1(b)  of the  GATT  1994. However, as Türkiye has demonstrated throughout these proceedings, 
none of these provisions is applicable to Türkiye's  measures.97  
4.58. The United  States has made no effort to formulate any a lternative arguments under Article  8.2 
of the  Agreement on Safeguards and Article  XIX:3(a)  of the  GATT  1994. Thus, in this dispute, the 
United States has chosen not to formulate any alternative claims, and has based its case exclusively 
on the proposition that Türkiye's  measures fall under Articles  I and II. The United  States has not 
formulated any claims under Article  8.2 of the  Agreement on Safeguards and Article  XIX:3(a)  of 
the GATT  1994, neither in its consultations and panel request, nor in its submiss ions.98 
4.59. Thus, in the event that the Panel agrees with Türkiye – as Türkiye believes it should – that the 
measures at issue are not covered by Articles  I and II of the  GATT  1994, but rather by Article  8.2 of 
the Agreement on Safeguards and Article  XIX:3(a)  of the  GATT  1994, the Panel must dismiss the 
United  States'  complaint in toto.99 
5 CONCLUSION AND REQUEST FOR FINDINGS  
5.1. For the above reasons, Türkiye requests the Panel to find that:  
• Türkiye's measures fall under Article XIX of the GATT 1994 and the Agreement on 
Safeguards;  
• The United States failed to file claims on a proper legal basis; and  
• In the absence of a finding under the Agreement on Safeguards and Article XIX, no 
findings under Articles I and II of the GATT 1994 can be made.  
 
_______________  
 
 
 
 
96 Türkiye 's Opening Statement at the Second Substantive Meeting, para. 2.49.  
97 Türkiye 's Opening Statement at the Second Substantive Me eting, para. 2.50.  
98 Türkiye 's Opening Statement at the Second Substantive Meeting, para. 2.51.  
99 Türkiye 's Opening Statement at the Second Substantive Meeting, para. 2.53.  WT/DS561/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of China  52 
Annex  C-2 Integrated executive summary of the arguments of the European Union  56 
Annex  C-3 Integrated executive summary of the a rguments of Japan  61 
Annex  C-4 Integrated executive summary of the arguments of  New Ze aland 64 
Annex  C-5 Integrated executive summary of the arguments of  Norway  65 
Annex  C-6 Integrated executive summary of the arguments of  the Russian Federation  69 
Annex  C-7 Integrated executive summary of the arguments of  Switzerland  73 
Annex  C-8 Integrated executive summary of the arguments of  Ukraine  77 
 
 
 WT/DS561/R/Add.1  
 
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  ANNEX  C-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA  
1. This executive summary integrates  the Third Party Written Submission , Oral Statement and 
Responses to the Panel's Questions by China in this dispute . 
I. Order of Analysis  
2. China believes the Panel should first examine the measures at issue in relation to Article 8.2 
of the Saf eguards Agreement, and only when the Panel was to find that that provision does not apply 
to the measures at issue, the Panel would turn to and would need to turn to examine the United 
States claims under Articles I and II of the GATT 1994. This is based o n the correct understanding 
of the legal relationship between the WTO safeguards disciplines and Articles I and II of the 
GATT  1994.  
3. Since the measures at issue were explicitly taken pursuant to Article 8.2 of the Safeguards 
Agreement, unless the Panel first finds that this provision does not apply to the measures at issue, 
violation of Articles I and II  of the GATT 1994 cannot be found or even examined by the Panel. If 
the Panel finds Article 8.2 of the Safeguards Agreement is applicable to the measures  at issue, there 
would be no need for the Panel to examine the claims of the United States on violation of Articles I 
and II  of the GATT 1994 since the United States has not made a claim of inconsistency of the 
measures at issue with Article 8.2 of the Saf eguards Agreement.  
II. Legal Standard Standard in Relation to The Applicability of Article 8.2  
4. Following the relevant analytical approach taken and principles established by the Appellate 
Body concerning the applicability of safeguard disciplines in I ndonesia – Iron or Steel Products  case, 
the Panel would need to first identify the "constituent features" of a measure under Article 8.2 of 
the Safeguards Agreement, and not conflating the factors relating to the legal characterization of a 
measure with thos e relating to the WTO -consistency of a measure. Then, the Panel would need to 
analyse, based on the facts before it, if "constituent features" are present for the measures at issue.  
5. Based on plain reading of Article 8.2 of the Safeguards Agreement, the Panel would first need 
to identify the type of "action" contemplated in the provision. The provision provides Members the 
freedom "to suspend, ……, the application of substantially equivalent concessions or other obligations 
under the GATT 1994, to the trad e of the Member applying the safeguard measure". Suspension of 
the concessions or other obligations under the GATT 1994 is apparently the "action" contemplated.  
6. In order to identify if the measure at issue suspends concessions or other obligations under  
the GATT 1994, the Panel would need to compare the measure with the relevant GATT concessions 
and obligations to determine if a suspension occurred as the result of the measure. Then the Panel 
would need to turn to identify what is the "objective" of the "action" provided for in Article 8.2 of the 
Safeguards Agreement, which purposed to keep suspension "substantially equivalent" and "to the 
trade of the Member applying the safeguard measure". There must be a demonstrable link between 
the "action" of suspen sion of concessions or other obligations and such an objective.  
7. China believes, as long as the suspension of concessions and other obligation is "designed" to 
reach such a rebalance with the Member taking a safeguard measure, i.e., this is the clear objective 
of the action of suspension by a Member, it carries the "objective" feature required under Article 
8.2. Whether the underlying measure taken by the target Member of the Article 8.2 measure is 
indeed objectively a safeguard measure, i.e., ca rrying the "constituent features" of safeguard 
measure under Article XIX:1(a) of the GATT 1994, seems to be a "substantive condition" for the 
consistency with Article  8.2. 
8. In order to identify  whether the measures at issue present the "objective" featur e of an 
Article  8.2 measure, a panel w ould need to "assess the design, structure, and expected operation of 
the measure as a whole", "identify all the aspects of the measure that may have a bearing on its WT/DS561/R/Add.1  
 
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  legal characterization, recognize which of those as pects are the most central to that measure", and 
as part of its determination, "a panel should evaluate and give due consideration to all relevant 
factors, including the manner in which the measure is characterized under the domestic law of the 
Member conc erned, the domestic procedures that led to the adoption of the measure, and any 
relevant notifications to the WTO Committee on Safeguards. "  
III. Article XIX of the GATT 1994 and the Safeguards Agreement are not "Affirmative 
Defense" to the Members for the Breach of GATT 1994 Obligations  
9. It has been well acknowledged that some provisions of the GATT 1994 such as Articles XX, 
XXI, and XXIV are "limited exception" available as "affirmative defense" to the respondent.  
10. However, GATT provisions establ ishing positive obligations are not "affirmative defenses".  The 
provisions that alter the scope of the obligations are not "affirmative defenses" . It does not seem 
to be the case that Article XIX of the GATT 1994 or the Safeguards Agreement have been or s hould 
be categorized as "limited exceptions" or "affirmative defenses".  
11. Article XIX of the GATT 1994, as clarified and reinforced by the Safeguards Agreement, is an 
integral part of the GATT 1994, and is part of the rights and obligations of WTO Member s under the 
GATT 1994.  
12. Article XIX of the GATT 1994 and Safeguards Agreement explicitly establish positive 
obligations for Members applying safeguard measures, as well as for Members affected by such 
measures in taking re -balancing measures. Such as o bligation to make proper determination on 
"unforeseen developments", on imports "in such increased quantities" and "under such conditions", 
and on serious injury or threaten of serious injury to domestic industry caused by such import, and 
to observe the o bligation of notification, of providing consultation opportunities, and obligation for 
application irrespective of sources of imports and only for necessary period of time.  
13. The fundamental nature and structure of the transitional safeguards regime und er Article 6 of 
the Agreement on Textiles and Clothing (the " ATC") shed light on how to understand the similar 
provisions as Article XIX of the GATT 1994 and the Safeguards Agreement.  
14. Furthermore, as provided in Article s XIX:1(a) and XIX:3(a) of the GATT 1994 and Article 8.2 
of the Safeguards Agreement, when safeguard measures or the rebalancing measures by affected 
Members are imposed, the application of the relevant concessions or obligations under other 
provisions of the GATT 1994, such as those und er Article s I and II, have already been stopped in 
application, or made inactive, or taken away or changed, and therefore are not eligible to be 
assessed independently from the safeguard provisions.  
15. Measures taken pursuant to Article XIX of the GATT 1994 and the Safeguards Agreement 
would necessarily alter the scope of the relevant concessions or obligations established by other 
GATT 1994 provisions. To China, the relationship of safeguard measures/rebalancing measures with 
other GATT  provisions supports the view that safeguard provisions are not exceptions or "affirmative 
defense".  
16. The correct legal characterization of the safeguard provisions means that, in a WTO dispute 
proceeding concerning safeguard measures or rebalancing measures taken pursuant to the 
safeguard provisions, it should  be up to the complainant to assert inconsistency with the safeguard 
provisions in its panel request to bring it within the terms of reference of the panel, and the burden 
is on the complainant to establish a prima facie case that the measures at issue are inconsistent 
with the safeguard provisions.  
IV. United States' Claim Could Not Be Properly Brought Before the Panel if the 
Complainant Ignored the Clear Legal Basis of the Measures at Issue  
17. Article 6.2 o f the DSU requires the panel request shall "provide a brief summary of the legal 
basis of the complaint sufficient to present the problem clearly ". The panel request "define the scope 
of the dispute".  Pursuant to Article 7 of the DSU, a panel's terms of r eference are governed by the 
panel request.  WT/DS561/R/Add.1  
 
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  18. The panel's terms of reference is a threshold issue. It identifies the measures and the claims 
that a panel ha s authority to examine and on which it ha s authority to make findings, and a panel 
may consider on ly those claims that it has authority to consider under its terms of reference.  
19. China believes if a complainant purposely ignored the clear legal basis under the WTO legal 
framework of a measure at issue by not including a claim based on such provision s in its panel 
request, it runs the risk of not conveying the "legal basis of the complaint sufficient to present the 
problem clearly" as required by Article 6.2 of the DSU, and not notifying the respondent "the nature 
of its case". This is true when the l egal basis of the measure at issue is positive obligations under 
the WTO legal framework, not "exceptions ". 
20. As illustrated by  the Appellate Body in  EC-Tariff Preferences  case, the complainant must, in 
its request for the establishment of a panel, ident ify relevant provisions of the Enabling Clause which 
the complainant considered have been violated by the measures at issue, in order to "notif[y] the 
parties and third parties of the nature of [its] case". The Appellate Body is of the view that a 
complain ing party challenging a measure taken pursuant to the Enabling Clause must allege more 
than mere inconsistency with Article I:1 of the GATT 1994, for to do only that would not convey the 
"legal basis of the complaint sufficient to present the problem clear ly". Moreover, as the EC measure 
at issue in that dispute "is plainly taken pursuant to the Enabling Clause", the complaining party 
should reasonably have articulated its claims of inconsistency with specific provisions of the Enabling 
Clause at the outset  of the dispute as part of its responsibility to "engage in [dispute settlement] 
procedures in good faith in an effort to resolve the dispute".  
21. Following the Appellate Body's view, the United States, by alleging only inconsistency with 
Article s I and I I of the GATT 1994 in its panel request, and purposely ignoring the clear legal basis 
of the measures, did not convey the "legal basis of the complaint sufficient to present the problem 
clearly" as required by Article 6.2 of the DSU. The facts suggest that  the United States was well 
aware of the clear legal basis of the measures at issue at the time of bringing the measures to the 
dispute settlement mechanism, and was fully capable of bringing its claim challenging such legal 
basis. The United States chose not to do so.  
22. Purposely ignoring the clear legal basis of the measures could not be understood as engaging 
in the dispute settlement procedures in good faith. The fundamental defects of non -compliance with 
Article 6.2 of the DSU in the panel request co uld not be left without serious consequences for the 
purpose of safeguarding the integrity of the WTO dispute settlement mechanism.  
23. For the analysis above, China encourages the panel to consider the request of the Turkey for 
the panel to dismiss the c ase of the United States.  
V. United States Failed to Fulfil the Burden of Proof Requirement  
24. Article 8.2 of the Safeguards Agreement as an integral part of the overall rights and obligations 
under the WTO safeguard disciplines, are not "exceptions" to o ther GATT provisions or "affirmative 
defence" for violation of obligation under other GATT provisions. Measures taken pursuant to and 
consistent with Article 8.2 of the Safeguards Agreement do not violate the obligations under Article 
I or II of the GATT 1994. Therefore, it should  be first up to the United States, as the complainant, 
to discharge its burden that Article 8.2 of the Safeguards Agreement does not apply to the measures 
at issue in order to establish a prima facie case of violation of Articles  I and II of the GATT 1994.  
25. The United States cannot discharge such a burden by simply stating its underlying measures 
are not safeguard measures, since whether the underlying measures are s afeguard measures is not 
part of the "constituent features" of measures under Article 8.2 of the Safeguards Agreement for 
the determination of the applicability of this provision. To discharge its burden, the United States 
need to present evidences and arg uments as to why the measures do not present the "constituent 
features" of Article 8.2 measures.  
VI. Whether the U.S. Section 232 Measures on Steel and Aluminum Products Constitute 
Safeguard Measures  
26. China does not believe the panel need to examine whether the U.S. Section 232 measures on 
certain steel and aluminum products constitute  safeguard measures under Article XIX of GATT  1994 WT/DS561/R/Add.1  
 
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  in the current dispute. The U.S. Section 232 measures are not measures at issue in the current 
dispute. The United States  has failed to brought a proper claim of whether the measures at issue 
are consistent with Article XIX:3 of the GATT 1994 and Article 8.2 of the Safeguards Agreement, 
including whether the measures are in response to a safeguard measure under Article  XIX o f the 
GATT 1994.  
27. In case the Panel wishes to examine this issue in any way, China does not agree to the 
argument of the United States that a measure is not a safeguard unless the WTO Member imposing 
the measure has invoked its right to apply a safeguar d measure.  
28. As the Appellate Body recently affirmed in Indonesia – Iron or Steel Products  case, whether a 
measure is a safeguard measure under Article XIX of the GATT 1994 is an objective question to be 
evaluated by the Panel in light of the "constituen t features" presented by the parties. This clear legal 
finding by the Appellate Body does not leave room for the argument that it is up to a Member to 
determine whether the safeguard provisions would apply to its measures in the dispute settlement 
proceedi ngs by choosing to invoke the safeguard provisions or not when imposing its measures. 
China does not believe  invocation by a Member of Article XIX of the GATT 1994 is a necessary 
condition for the application of WTO safeguard disciplines on the measure at issue. Invocation is not 
one of the "constituent features " of a safeguard measure, and the applicability of the WTO safeguard 
disciplines is an issue properly subject to the objective examination by a Panel, not self -determined 
by a Member with its domesti c labelling of the measure it chose. Such approach runs contrary to 
Article 6.2 of the DSU which provides the applicability of covered agreements is subject to the 
objective assessment and determination by the Panels.  
29. Panel 's assessment is based on spe cific facts of each case. China would like to reiterate that 
Panel 's assessment in this respect must be "independent and objective" as required by Article 11 of 
the DSU.  
30. Further, China agrees in general with the detailed analysis based on substantial r elevant facts 
by the Turkey in its first written submission that the Section 232 measures on certain steel and 
aluminum products of the United States carry the "constituent features" of safeguard measures, and 
therefore constitute safeguard measures under Article XIX of the GATT 1994.  
VII. Inter -Panel Coordination  
31. China believes the presence of similar issues between DS564 and the present dispute  proceeds 
in parallel would warrant certain type of exchange between the Panels. China does not believe such 
exchange is specifically prohibited under the DSU.  
 WT/DS561/R/Add.1  
 
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  ANNEX C -2 
INTEGRATED  EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
I. THE  UNITED  STATES ' FAILURE  TO REFER  IN ITS CONSULTATIONS  REQUEST  OR PANEL  
REQUEST  TO THE  SPECIFIC  CONTROLLING  PROVISIONS,  WHICH  ARE  ARTICLE  8 OF THE  
AGREEMENT  ON SAFEGUARDS  AND  ARTICLE  XIX:3(A)  OF THE  GATT  1994  
1. The US fails to refer to the provisions that control the question of permissible rebalancing in 
response to a safeguard measures: Article XIX:3(a) of the GATT 1994 and Article 8 of the Agreement 
on Safeguards. It believes that, in doing so, it can convince the Panel to close its eyes to the fact 
that the US measure is a safeguard, and push the Panel in to treating the controlling provisions as 
so-called "affirmative defences ".  
2. The US errs when arguing that Article XIX:3(a) of the GATT 1994 and Article 8 of the 
Agreement on Safeguards are so -called "affirmative defences ", assimilated for example to Article XX 
of the GATT 1994.  
3. Article XIX:3(a) (which refers to rebalancing), j ust like XIX:1(a) (which refers to the right to 
impose a safeguard), provide that, if the requirements are met, Members "shall be free " to suspend 
the relevant obligations. This is not a question of "justifying " a "violation ". In other words, these 
provisi ons are not affirmative defences, but enable the taking of an action (i.e. suspend the 
obligation).  
4. In that sense, both of these provisions are similar to Article XXVIII of the GATT 1994 
(modification of schedules) which provides that a party which pro poses to modify or withdraw a 
concession "shall be free to do so ". Modifying a concession alters the content of that Member 's 
obligations. It does not violate those obligations, such that justification would be called for. The legal 
position is also simila r with respect to anti -dumping or countervailing measures taken under 
Article  VI of the GATT. Article VI does not "justify " a violation of Articles I and II; rather, it provides 
for the possibility to take an action which does not constitute a violation. T he US also errs when 
arguing that the Agreement on Safeguards as a whole be characterised as a mere "affirmative 
defence ". This is incorrect, because that Agreement is full of provisions which are simply in the 
nature of obligations.  
5. Cases such as US – 1916 Act , Australia – Apples , EC – Seal Products and Thailand – Cigarettes 
(Philippines) (Article 21.5 – Philippines) show that the present Additional Duties cases are not an 
isolated instance, but rather a type of situation that has occurred in the past.  In those cases, the 
WTO adjudicating bodies did not shy away from fulfilling their duties and deciding on the applicability 
of the covered agreements. Logically, such an analysis took place upfront, before the substance of 
the different claims was reached.  
6. The European Union considers that past cases concerning the relationship between the 
Anti-Dumping Agreement and the GATT 1994 provide useful guidance to understand the relationship 
between the Agreement on Safeguards and certain provisions of the GATT 1994. In particular, the 
European Union considers that those cases provide support to its legal position that the Agreement 
on Safeguards is not in the nature of an affirmative defence to an alleged violation of Articles I or II 
of the GATT 1994.  
II. BURDEN  OF PROOF  
7. Because Article 8.2 is not an affirmative defence, it is not for the respondent to raise or to 
make a case under it. Rather, Article 8.2 is the controlling provision, and the US should have raised 
it, if it was to have any hope of succee ding in its claims. It failed to do so.  
8. Thus, the European Union agrees that it is the complainant that has the burden of making a 
prima facie  case of inconsistency with Article 8 of the Agreement on Safeguards. The European Union 
recalls that the Agree ment on Safeguards is not in the nature of an affirmative defence and the 
initial onus rests on the complainant, which has to make its case . WT/DS561/R/Add.1  
 
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  III. ORDER  OF ANALYSIS  
9. The European Union agrees with the US that the Panel can properly assess the more specifi c 
claim before assessing the more general claim. Article II:1(b) is, indeed, more specific, as it 
proscribes a specific type of less favourable treatment (duties in excess of bound rates) which will 
also constitute less favourable treatment under Article I I:1(a) (the latter being a consequential 
claim).  
10. The European Union considers that the same approach of addressing the more specific 
provision before the more general provision should guide the Panel 's order of analysis between 
Articles 8.2 of the Agre ement on Safeguards and Article XIX:3(a) of the GATT 1994, on the one 
hand, and Articles I and II of the GATT 1994, on the other hand.  
11. First, Article 8.2 of the Agreement on Safeguards is the more specific provision.  
12. Second, beginning the analysis with Article 8.2 offers possibilities to exercise judicial economy. 
If the Panel were to find that Article 8.2 applies to the measures at issue, it would be impossible for 
the US to succeed in its claims under Article I and II of the GATT 1994, because the  US would have 
failed to even make a claim under the controlling provisions. Beginning with Articles  I and II of the 
GATT 1994 offers no such possibilities, in any circumstances. This is because a measure that is 
consistent with Article 8.2 (including a measure that is presumed to be consistent with that provision 
because no claim to the contrary has been made, as in this case) cannot be inconsistent with Articles 
I and II of the GATT 1994.  
13. Third, the applicability of a covered agreement is a threshold issue which should, as a general 
matter, be assessed first. This question of applicability is always an objective question that is never 
entirely in the hands of either litigant acting unilaterally.  
IV. THE  AGREEMENT  ON SAFEGUARDS  AND  ARTICL E XIX  OF THE  GATT  1994  ARE  
APPLICABLE  TO THE  MEASURES  ADOPTED  BY THE  UNITED  STATES  
14. The EU recalls that, according to settled case -law, and as recently confirmed by the Appellate 
Body in the specific context of the Agreement on Safeguards, whether or no t a measure is subject 
to the disciplines of the Agreement on Safeguards is an objective question.  Contrary to what the US 
asserts, it is not a question to be decided unilaterally by the Member imposing the safeguard 
measure.  
15. A reason why the character isation of a measure as a safeguard must be an objective question 
is that Article XIX and the rules of the Agreement on Safeguards include important and fundamental 
rights of other WTO Members, notably the right to suspend equivalent GATT obligations such as are 
at issue in this dispute.   
16. In making that objective assessment of whether a measure is a safeguard, the Panel must 
engage in a case -specific assessment, having regard to all of the relevant facts. In this respect, and 
again contrary to what the US asserts, the domestic procedures pursuant to which a measure has 
been adopted are not determinative, and neither are the WTO procedures that have been followed, 
or not followed, by the adopting Member.  
17. The fulfilment of the requirements in Article 12 is a question of consistency, and not a question 
that decides the applicability of the Agreement on Safeguards. If a Member decides to take a 
measure that is objectively a safeguard without notifying it, the conclusion is not that Article XIX of 
the GAT T 1994 and the Agreement on Safeguards do not apply. The conclusion is that the measure 
is WTO -inconsistent.  
18. Furthermore, the Appellate Body has previously held that the characterisation of a measure 
under a Member's municipal law is not dispositive of  the question of whether or not that measure is 
governed by the provisions of a particular agreement.  
19. In the context of Article 1 of the Agreement on Safeguards, in order to be a safeguard 
measure, a measure must have two constituent features. First, it must suspend, in whole or in part, 
a GATT obligation or withdraw or modify a GATT concession. Second, the suspension, withdrawal, WT/DS561/R/Add.1  
 
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  or modification in question must be designed to prevent or remedy serious injury to the Member's 
domestic industry caused o r threatened by increased imports of the relevant products. The 
constituent features of a safeguard measure are distinct from and not to be conflated with the 
conditions that must be met in order for the right to adopt, apply and maintain a safeguard measu re 
to be exercised.  
20. If the measures have "a specific objective" of preventing or remedying serious injury to the 
Member's domestic industry they are subject to the disciplines of the Agreement on Safeguards. If 
so, even if the measure had some other "aspects " that suggest that it also has another objective, 
this would not detract from the conclusion that the measure is a safeguard. In such circumstances, 
whatever other provisions of another agreement that might be applicable would not exempt the 
measur e from complying fully with the conditions set out in the Agreement on Safeguards. In the 
EU's view, the test to be performed when deciding whether the Agreement on Safeguards applies to 
a measure is not a "centre of gravity " test. 
21. In conducting its as sessment the Panel must have regard to the measure "as a whole". The 
only reasonable outcome of such an objective assessment is to conclude that the US measures are 
safeguards.  
22. The US measures suspend at least one GATT obligation, in whole or in part,  or withdraw or 
modify at least one GATT concession. Indeed, prior to the Section 232 measures the US customs 
duties on the steel and aluminium products at issue were bound, as well as applied at the level of 
0%. However, the US measures provide for a cust oms duty rate of 25% ad valorem for the relevant 
steel products and 10% ad valorem for the relevant aluminium products.  
23. The US measures have a specific objective of preventing or remedying serious injury to the 
US domestic steel and aluminium industri es caused or threatened by increased imports of the 
relevant products. Furthermore, this is one of the "most central" aspects of the measures. Finally, 
this is also a defining characteristic of a safeguard measure. Thus, with the two defining 
characteristi cs being cumulatively present, the US measures clearly fall within the scope of the 
Agreement on Safeguards. This conclusion is clearly supported by an analysis of the "design, 
structure, and expected operation " of the steel and aluminium measures, as well  as by several 
additional features of those measures. Moreover, those measures were not taken pursuant to any 
provisions of the GATT 1994 other than Article XIX.  
24. The European Union considers that whether the US' Section 232 duties constitute a safeguar d 
measure is the matter before the Panel in US – Steel and Aluminium Products , as the measure at 
issue. The measures at issue in the present proceedings are the measures in the form of additional 
duties taken by the respondent. It would be permissible, but  not necessary, for this Panel to find as 
a preliminary matter that the US measures are safeguards.  
V. WITH  REGARD  TO THE  RE-BALANCING  MEASURES  AT ISSUE  
25. In order to determine whether or not a measure falls within Article 8.2 , a panel must make 
an objec tive assessment of all the facts and evidence. Just as there are certain objective, constituent 
features of safeguard measures, there are also certain objective elements which determine whether 
a measure falls within Article 8.2.  
26. In the European Union 's view, there are two such elements. The first is the suspension of the 
application of concessions or other obligations under the GATT 1994; the second is the absence of 
a unilateral measure by the safeguard -imposing Member, or of an agreement on adequate  means 
of trade compensation, designed to and capable of maintaining a substantially equivalent level of 
concessions.  
27. The European Union notes that it is the very purpose of Article 8.2 to enable affected exporting 
Members to rebalance (i.e. maintain substantial equivalence) without waiting for a multilateral 
determination that the underlying measure is a safeguard. Article 8.2 foresees that suspension must 
take place within strict deadlines shortly after the application of the underlying safeguard meas ure. 
Moreover, under certain circumstances (as outlined in Article 8.3) the right of suspension can even 
be exercised  immediately. If those Members, faced with a safeguard measure that is mislabelled by WT/DS561/R/Add.1  
 
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  the adopting Member in a self -serving manner, had to wait for a multilateral finding that the measure 
is indeed a safeguard, they would be effectively deprived of their rights under Articles 8.2 and 8.3.  
28. Neither the decision -making rules of the CTG or the GC, nor the requirements of Article 8.2 
concernin g the absence of disapproval by the CTG, have any bearing whatsoever on the question of 
whether or not Article 8.2 applies, i.e. whether the measure can properly be considered a rebalancing 
measure. However it is to be interpreted, the requirement of the a bsence of a disapproval is no more 
than an obligation for the rebalancing Member.  
29. The existence of "doubt " about whether the underlying measure is a safeguard cannot prevent 
Members from exercising their rights under Article 8.2. To require absolute ce rtainty would mean in 
effect that, whenever the adopting Member chooses not to characterise the measure as a safeguard, 
rebalancing would be impossible. Moreover, as we have learned in Indonesia – Iron or Steel 
Products , a measure may not be a safeguard ev en where both Members agree that it is a safeguard . 
Thus, there can be "doubt " even in the face of agreement among the Members involved.  
30. Both for the underlying safeguard measure and for the rebalancing measure, the assessment 
has to be objective, i.e. based on the objective characteristics of the measures as opposed to their 
unilateral characterisation by the adopting Member. An objective assessment also means that the 
legal characterisation of a measure cannot depend on the purely subje ctive intent of the adopting 
Member.  
31. To suspend a concession with respect to another Member or Members means to suspend a 
promise, or commitment, to act or refrain from acting in a certain way towards that Member or 
Members. To take the example of duti es, to suspend a concession in a Member 's Schedule means 
to suspend the "promise " (towards one or more other Members) not to exceed the bound duty rate.  
32. Whether the same Member actually exceeds the duty rate in question is a separate issue. It 
is possi ble, for example, that the Member suspends a concession but does not actually increase the 
relevant duty (or not yet). In this scenario, there would be a suspension, but there would not be any 
violation of Article II:1(b), because the bound duty would not have been exceeded.  
33. There is, however, one very important caveat, and a further distinction between suspensions 
and violations. A valid suspension, i.e. a suspension taken in compliance with the applicable 
provisions of the covered agreements, such as a WTO -consistent modification of a schedule under 
Article XXVIII of the GATT 1994, a WTO -consistent safeguard measure, or a WTO -consistent 
rebalancing measure, does not amount to or create any violation of the covered agreement, not 
even a prima facie viol ation which would then presumably need to be justified.  
VI. MEASURES  THAT  ARE  CONSISTENT  WITH  THE  AGREEMENT  ON SAFEGUARDS  AND  
ARTICLE  XIX  OF THE  GATT  1994  ARE  NOT  INCONSISTENT  WITH  ARTICLES  I:1,  II:1(A)  
AND (B) OF THE  GATT  1994  
34. The treaty terms "to sus pend the obligation in whole or in part or to withdraw or modify the 
concession" in Article XIX:1(a) of the GATT 1994 do not mean that the original obligation remains 
unchanged, but is "violated", with such "violation" being "justified" by Article XIX:1(a) . Rather, as 
the treaty expressly provides, they mean that the original obligation is suspended or altered. 
Suspending an obligation is not the same thing as violating an obligation (which could then possibly 
be justified).  
35. The relationship between Art icle XIX of the GATT 1994 and Articles I and II of the GATT 1994 
is analogous to the relationship between, for example: (i) Articles I, II and VI of the GATT 1994; 
and (ii) Article IV of the GATT 1994 and other provisions of that treaty.  
36. If the Panel finds (as it should) that Article 8.2 applies, it can no longer make any findings of 
WTO-inconsistency, either under the specific requirements of Article 8.2 of the Agreement on 
Safeguards (since the US has not made any claim under that provision), or unde r Articles I and II 
of the GATT 1994 (since a measure that is consistent, or even presumed consistent, with the 
controlling provision of Article 8.2 of the Agreement on Safeguards cannot be inconsistent with 
Articles I and II of the GATT 1994).  WT/DS561/R/Add.1  
 
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  VII. PROPOS AL ON INTER -PANEL  COORDINATION  
37. The European Union considers that there is nothing in the DSU that would prevent a form of 
collaboration among the panels in the Steel and Aluminium  disputes and those in the Additional  
Duties  disputes. This concerns, in particular, certain exchanges of views and harmonization of 
timetables.  
38. Importantly, there is no contagious risk to future disputes, given the particular and indeed 
unique factual and legal setting of these cases, which are  two sides of the same coin.  
39. Article 13 of the DSU, among others, may provide a legal basis for such a collaboration, as it 
provides that "panels may seek information from any relevant source ". Such a cooperation would 
be in line with the objectives of  the dispute settlement system to ensure security and predictability 
of the multilateral trading system (Article 3.2 of the DSU), and to secure a positive solution to the 
disputes (Article 3.7 of the DSU).  
40. Indeed, the fact that panels can, and should, exchange views when deciding an identical or 
closely related matter, is also supported by Rule 4(3) of the Working Procedures for Appellate 
Review. Under that provision, members of an Appellate Body division shall exchange views with the 
other Members befo re finalizing their report. Under Rule 4(5), this does not interfere with the 
division 's full authority and freedom to hear and decide the appeal.  
41. If such an exchange of views is consistent with the DSU, then there would be no reason to 
hold otherwise  for an exchange of views between two panels dealing with the same or closely related 
matter. This is especially so in the unique circumstances of this case, where panels are addressing 
the same alleged safeguard measures, either as a measure at issue ( US – Steel and Aluminium 
Products ) or as the underlying measure which is rebalanced by the measure at issue (the Additional 
Duties  disputes).  
42. In the same vein, the fact that the Chairman of the four panels in the Additional Duties 
disputes is the same per son speaks to the same reasoning, perfectly justified in the particular 
circumstances of these disputes. While Article 9.3 of the DSU is about co -complainants, the EU 
considers that a similar approach is warranted in similar scenarios, and in specific circ umstances 
such the present one.  
43. Such cooperation between panels, in the form of a preliminary exchange of views, is aimed at 
ensuring that each of the panels makes an objective assessment of the matter before it, of the facts 
of the cases, including of  the applicability of and conformity with the covered agreements, as 
required by Article 11 of the DSU.  
44. This is particularly important in the context in which the US is blocking the appointment of 
new Appellate Body members, and thus of the high possib ility that when all these cases will be 
decided there will be no appeal adjudicator to ensure coherence. Thus, it is even more important, in 
order to ensure security and predictability to the multilateral trading system (Article 3.2 of the DSU), 
that panel s talk to each other in order to avoid divergent results and fragmentation.  
45. The confidentiality obligation in Article 14 of the DSU does not prevent the form of 
collaboration that the European Union has suggested. While panel deliberations are confiden tial, the 
European Union sees this cooperative process, for example, in the form of a meeting or meetings 
between all panellists in the Steel and Aluminium disputes and in the Additional Duties disputes. 
Such exchanges of views or concertation would be pre liminary, and external to the panel 
deliberations. Thus, they would not breach the duty of confidentiality in Article 14.1 of the DSU.  
46. The European Union considers that it is logical that the Steel and Aluminium panels, which 
were first invested with the US safeguard measures as the measures at issue before them, should 
decide first on that matter and only then the Additional Duties panels should decide on the 
rebalancing measures.WT/DS561/R/Add.1  
 
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  ANNEX  C-3 
INTEGRATED  EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN  
I. INTRODUCTION  
1. Japan welcomes this opportunity to present its views as a third party in this dispute . Japan 
has a systemic interest in ensuring the proper and consistent interpretation  of the WTO Agr eements, 
including Article XIX of the General Agreement on Tariffs and Trade ( "GATT ") 1994, as well as the 
Agreement on Safeguards.  
II. SCOPE OF ARTICLE XIX OF THE GATT 1994 AND THE AGREEMENT ON SAFEGUARDS  
2. Japan views that, pursuant to the express language of Article 11 of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes ( "DSU"), a panel must conduct an 
independent and objective assessment of whether a WTO agreement applies to a measure at issue, 
regardless of t he alleged characterization of the measure by the Member imposing it.  The Appellate 
Body recently confirmed this interpretation of Article 11, stating that "a panel is not only entitled, 
but indeed required, under Article 11 of the DSU to carry out an inde pendent and objective 
assessment of the applicability of the provisions of the covered agreements invoked by a complainant 
as the basis for its claims, regardless of whether  such applicability has been disputed by the parties 
to the dispute ".1 As such, a Member imposing a measure does not alone determine whether the 
Agreement on Safeguards applies to that measure; instead, this is a legal question that a panel must 
answer based on its objective assessment.  
3. Given that there is no clear textual definitio n of a "safeguard measure " in the text of the 
relevant WTO Agreements, it would not be appropriate for panels or the Appellate Body to draft a 
blanket definition of safeguard measures within the meaning of the Agreement on Safeguards.  This 
conclusion is co nsistent with the Appellate Body 's findings in Indonesia – Iron or Steel Products  that 
"whether a particular measure constitutes a safeguard measure for purposes of WTO law can be 
determined only on a case -by-case basis ".2 Thus, the role of the panel in t his dispute is to make a 
case-specific, objective assessment of whether the particular measures at issue is subject to the 
disciplines of the Agreement on Safeguards. This assessment should be conducted through , inter 
alia, an interpretation of "safeguard measures " based on the ordinary meaning of the term in its 
context, and in light of the object and purpose of the relevant agreements3 (i.e., the Agreement on 
Safeguards, the GATT 1994 and the other WTO Agreements).  
4. Regarding the factors that are "relevant" for a panel 's consideration of whether a measure is 
a safeguard measure, Article 1 of the Agreement on Safeguards, which refers to GATT Article XIX, 
anticipates certain types of actions ( i.e., suspension, withdrawal, or modification of the obligation or 
concession) implemented for a certain purpose ( i.e., to prevent or remedy serious injury to domestic 
producers).  Thus, the key features of a safeguard measure include (1) an action  "to suspend the 
obligation … or to withdraw or modify the con cession ", and (2) a purpose  "to prevent or remedy 
serious injury to domestic producers ". Japan 's suggested approach is consistent with the Appellate 
Body's findings in Indonesia – Iron or Steel Products , which listed two factors – one action and one 
purpos e – that are necessary to find a safeguard measure.4  
5. On the other hand, Japan disagrees with the views of some Members that this statement 
contains the sole "definition " of a safeguard measure or represents "settled case law " on the 
applicability of t he Agreement on Safeguards.   
6. First, the Appellate Body in Indonesia – Iron or Steel Products  categorized the action and 
purpose factors as necessary , but not sufficient , to find a given measure to constitute a safeguard 
 
1 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.33. (emphasis added)  
2 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.57.  
3 Article 31 of the Vienna Convention on the Law of Treaties.  
4 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  WT/DS561/R/Add.1  
 
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  measure.  The Appellate Body did n ot attempt to propose a comprehensive definition of a safeguard 
measure or ultimately to decide the scope of the Agreement on Safeguards.   
7. Second , treating the action and purpose features raised by the Appellate Body as a 
comprehensive definition of the  applicability of the Agreement on Safeguards could lead to 
unreasonable outcomes.  For example, an anti -dumping measure is usually imposed to protect the 
domestic industry in the form of duties in excess of a Member 's tariff concessions. Treating these 
two factors as the comprehensive definition of a safeguard measure could therefore result in treating 
all anti -dumping duties as "safeguards ". 
8. In Japan 's view, significant evidentiary value must also be ascribed to some important factors, 
such as the statu s of fulfillment of the notification requirements under Article 12 of the Agreement 
on Safeguards. The Appellate Body also refers to "relevant notifications to the WTO Committee on 
Safeguards " as part of "all relevant factors ", to which due consideration should be given when 
determining the applicability of the Agreement on Safeguards.5 
9. The object and purpose of the Agreement on Safeguards are described in its preamble, and 
include "the need to clarify and reinforce the disciplines of GAT T 1994 … to re-establish multilateral 
control over safeguards and eliminate measures that escape such control ".6 Japan maintains that, 
to achieve this objective, a panel 's assessment of a measure must prevent a Member from "escaping " 
the "multilateral con trol" disciplines of the GATT 1994 and the Agreement on Safeguards through 
the Member 's unilateral characterization of the measure in question as something other than a 
"safeguard measure ".  
10. In this regard, the Appellate Body in Indonesia – Iron or Ste el Products  stated that, in 
determining whether a measure constitutes a safeguard measure, "a panel is called upon to assess 
the design, structure, and expected operation of the measure as a whole ", and "must identify all the 
aspects of the measure that ma y have a bearing on its legal characterization [and] recognize which 
of those aspects are the most central to that measure ".7 It continued that "a panel should evaluate 
and give due consideration to all relevant factors, including the manner in which the measure is 
characterized under the domestic law of the Member concerned, the domestic procedures that led 
to the adoption of the measure, and any relevant notifications to the WTO Committee on 
Safeguards ", adding that "no one such factor is, in and of itself, dispositive of the question of whether 
the measure constitutes a safeguard measure within the meaning of Article 1 of the Agreement on 
Safeguards ".8 The Appellate Body in fact agreed with the panel in that dispute that the measure did 
not become a  covered safeguard measure simply because the Member in question followed its 
domestic procedures on safeguards and notified the measure as such. Clearly, other considerations 
are as important or more important than a Member 's own characterization of the m easure.  
11. In Japan 's view, the Appellate Body 's approach, emphasizing "due consideration to all relevant 
factors ", is generally consistent with the object and purpose of the Agreement on Safeguards 
because it would not allow a measure at issue to "escape " the WTO agreements ' "multilateral 
control ". In other words, a panel 's comprehensive evaluation of a measure would ensure that the 
Member imposing it could not avoid the Agreement on Safeguards ' disciplines by merely 
characterizing the measure as so mething other than a safeguard measure or not invoking the 
Agreement on Safeguards in dispute settlement.  
12. Therefore, the Panel 's assessment of whether the Agreement on Safeguards applies in this 
dispute must examine the design, structure, and expected  operation of the measure at issue as a 
whole and must give due consideration to all relevant factors. From this perspective, considering the 
various factors raised by the Parties in these disputes, Japan sees no reason to exclude the 
Section  232 measures at issue from the scope of the Agreement on Safeguards simply because 
the United States does not characterize the measures as "safeguard measures ".  
13. Finally, Article XXVIII, entitled "Modification of Schedules ", is another GATT 1994 provision 
that prov ides important context for the proper approach to and interpretation of Article XIX of the 
GATT 1994.  First, an Article XXVIII modification must be conducted "on the first day of each three -
 
5 Appellate Body Report, Indone sia – Iron or Steel Products , para. 5.60. (emphasis added)  
6 Emphasis added.  
7 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60. (emphasis added)  
8 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60. (footnote omitte d) WT/DS561/R/Add.1  
 
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  year period, the first period beginning on 1 January 1958 (or on t he first day of any other period 
that may be specified by the CONTRACTING PARTIES by two -thirds of the votes cast) ", and at least 
"by negotiation " with "contracting parties primarily concerned ". The measure at issue in this dispute 
has not satisfied these procedural requirements.   
14. Second, in contrast to Article XIX:1, Article XXVIII does not impose any substantive conditions 
for the modification or withdrawal of concessions, such as serious injury caused by imports to the 
relevant domestic industry or t he necessity of protecting the relevant domestic industry. It is 
essentially a political process that allows Members to re -negotiate their commitments.  Therefore, 
Article XXVIII addresses a similar action  as that in Article XIX, but the process is not othe rwise 
characterized by its purpose . The process under Article XXVIII therefore provides the broadest 
possible legitimate manner in which a Member may seek to  withdraw or modify a GATT concession.  
In the context of the Section 232 measures at issue, however , the United States has conducted no 
prior negotiations under Article XXVIII. In Japan 's view, this further confirms that the relevant 
enquiry will need to be to assess whether the Member has complied with Article XIX of the GATT  1994 
and the Agreement on Safeguards, rather than Article XXVIII.  
III. PANEL 'S TERMS OF REFERENCE  
15. The above issue – the scope of the Agreement on Safeguards – must be separated from the 
panel 's terms of reference. A panel 's terms of reference must be understood by reference to the 
panel request pursuant to Article 6.2 of the DSU – "identify the specific measures at issue and 
provide a brief summary of the legal basis of the complaint sufficient to present the problem clearl y". 
It is common for Members to raise certain defenses, such as those under Article XX of the 
GATT  1994, and these will be examined by panels even though they were not mentioned in the panel 
request.  
16. The recent Appellate Body decision confirmed that "the use of the phrase 'how or why '" by the 
Appellate Body in some cases "does not imply a new and different legal standard for complying with 
the requirements of Article 6.2 of the DSU ", and that "the applicable legal standard " is the text of 
Article 6.2 o f the DSU9, the objective of which is to: (i) delimit the scope of the panel 's jurisdiction; 
and (ii) ensure due process for the respondent and third parties. 10 In addition, "[t]he sufficiency of 
a panel request under this standard is to be assessed on a case -by-case basis ". 11 
 
 
9 Appellate Body Report, Korea – Pneumatic Valves , para. 5.7  
10 Ibid, para. 5.8.  
11 Ibid, para. 5.7.  WT/DS561/R/Add.1  
 
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  ANNEX C -4 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUMENTS OF NEW ZEALAND  
1. New Zealand 's participation in the current dispute reflects its systemic interest in the issues 
raised, in particular, the role of notifications under the Safeguards Agreement, and the role of the 
Panel in determining the legal characterisation of measures in issue.  
2. A measure does not need to be notified under Article 12 of the Safeguards A greement in order 
to constitute a safeguard measure. In Indonesia – Iron or Steel Products the Appellate Body 
distinguished between those factors that determine whether a measure is in fact  a safeguard 
measure, and those factors that will determine whether  it is a WTO consistent  safeguard measure.1 
Notification falls into this latter category. It is a procedural requirement directed at maintaining 
transparency around the safeguard process, and ensuring that affected Members are given 
opportunity to engage.  A failure to notify a safeguard measure will be inconsistent with the 
obligations set down in Article XIX GATT and Article 12 of the Safeguards Agreement. It is not, 
however, determinative of the legal characterisation of the measure, or the applicability  of the 
safeguards regime.  
3. Whether a measure is correctly to be characterised as a safeguard is a matter to be determined 
objectively by a Panel.  Article 11 of the DSU requires a panel to carry out an objective assessment 
of the matter before it, includ ing carrying out an assessment of the legal characterisation of the 
measures in issue.2 Where a dispute exists between Members, it can be expected that they may 
have differing views on the legal characterisation of relevant measures under the covered 
agreements. It is for a panel to objectively determine these matters, in accordance with its 
obligations under Article 11. While the parties ' own views on the proper legal characterisation of a 
measure may assist a panel in carrying out this exercise, they are  not determinative.  
4. In concluding – the giving of notice under Article 12 of the Safeguards Agreement is not an 
essential step that must be taken for a measure to constitute a safeguard. Where a dispute exists 
between Members, it is for a panel to reach  an outcome in accordance with its obligations under 
Article 11 DSU. This is to be determined objectively, on a case by case basis, and in light of all 
relevant facts and circumstances.  
 
 
1 Appellate Body Report, Indonesia – Iron or Steel Products , at para 5.57.  
2 Appellate Body Report, Indonesia – Iron or Steel Products , at para 5.33.  WT/DS561/R/Add.1  
 
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  ANNEX C -5 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY  
I. LEGAL  STANDARD GOVERNING THE APPLICABILITY OF WTO OBLIGATIONS  
1. It is well -established that municipal law classifications are not determinative of legal questions 
raised in WTO dispute settlement proceedings, in particular how a measure is characterised under 
WTO law, including which WTO obligations apply to a measure.  As the Appellate Body has explained, 
"the manner in which the municipal law of a WTO Member classifies an item cannot, in itself, be 
determinative of the interpretation of provisions of the WTO covered agreements ".1 Instead, the 
characterisation of a mea sure under WTO law must be based on the measure 's "content and 
substance ", and "not merely on its form or nomenclature ".2 
2. It is not uncommon for a respondent to assert, based on domestic law classifications, that a 
measure is not subject to particular WTO obligations. In that event, as the panel in Dominican 
Republic – Safeguard Measures has explained, "the determination on applicability [of the provisions 
of the covered agreements to the challenged measures] must be a prior step to the analysis of 
whether the impugned measures are consistent with the obligations contained in the cited 
provision[s] ".3  
3. This "prior step " of determining the applicability of the relevant covered agreements is one 
frequently faced by panels and the Appellate Body.4 A Member's characterisation of the measure at 
issue is not determinative of the applicable WTO obligations. Instead, the assessment is based on 
the content and substance of the measure, clarified according to: the text and structure of the 
measure; the surroun ding regulatory context; the domestic legal framework in which the measure 
is adopted; and the design and application of the measure.   
4. In sum, if a measure is, in "content and substance ", a "safeguard measure ", a Member cannot 
exclude the application of  the Safeguards Agreement by characterising the measure as something 
other than a "safeguard measure " under its own domestic law. Otherwise, the Member 's own 
characterisation of the measure would be determinative of the WTO obligations applicable to the 
measure. In short, a Member would be able to decide for itself which WTO obligations apply to its 
measures.   
5. Instead, a panel must decide whether a covered agreement – here the Safeguards Agreement 
– applies to a measure using the substantive criteria in WTO law. First, a panel must ascertain the 
legal standard in the agreement governing the applicability of the agreement.  Second , a panel must 
assess the facts, in particular the nature and character of the measures at issue, and apply the legal 
standard to  the relevant facts.  
II. LEGAL STANDARD GOVERNING THE APPLICABILITY OF THE SAFEGUARDS 
AGREEMENT  
6. Article 1 of the Safeguards Agreement provides that "this Agreement establishes rules for the 
application of the safeguard measures which shall be understood to mean those provided for in 
Article XIX of the GATT 1994 ". Norway, therefore, turns first to Article XIX to establish the scope of 
application of the Safeguards Agreement. As the Appellate Body observed in Indonesia – Iron or 
Steel Products , Article XIX is not styled as a definitional provision: "Article XIX:1(a) does not 
expressly define the scope of measures that fall under the WTO safeguard disciplines ".5 Instead, 
 
1 Appellate Body Report s, US – Softwood Lumber IV , para. 65 and  China – Auto Parts , footnote 244.  
2 Appellate Body Report, US – Continued Zeroing , footnote  87. 
3 Panel Report, Dominican Republic – Safeguard Measures , para. 7.58,  referring to Appellat e Body 
Reports, China – Auto Parts , para. 139;  Canada – Autos , para . 151; and  US – Shrimp , para . 119. 
4 Appellate Body Report, US – 1916 Act , para. 1 30; Appellate Body Report, Australia – Apples , para. 
173; Appellate Body Report s, EC – Seal Products , para. 5.19, citing Appellate Body Report, EC – Asbestos , 
para. 72 ; Panel Report, Thailand – Cigarettes (Philippines) (Philippines – Article 21.5 ), paras . 7.673 -7.683 . 
5 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.57.  WT/DS561/R/Add.1  
 
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  Article XIX serves to impose obligations on the adoption of safeguard measure s. These obligations 
are considerably developed in the Safeguards Agreement.  
7. Given the nature of Article XIX, the Appellate Body cautioned against conflating the factors 
that properly define a safeguard measure (and, hence, the applicability of the Saf eguards 
Agreement), with those that govern the WTO -consistency of such measures. A measure may be 
properly regarded as a safeguard, even though it does not meet the WTO obligations governing 
safeguard measures. If this were not the case, a measure could, b y definition, be subject to WTO 
safeguard obligations solely if it complied with those obligations and, correspondingly, there could, 
by definition, never be a WTO -inconsistent safeguard measure. The Appellate Body rightly rejected 
this approach.  
8. Althou gh the provisions of Article XIX are not definitional, the Appellate Body found that they 
shed light on the character of a safeguard measure. The Appellate Body found that the types of 
measures "provided for " in Article XIX are those "designed to secure a specific objective , namely 
preventing or remedying serious injury to the Member 's domestic industry ".6 To be a safeguard 
measure, therefore, a challenged measure must have "a demonstrable link to the objective of 
preventing or remedying injury ".7 
9. Connected to this objective, the Appellate Body also identified two "constituent features " of a 
"safeguard measure ": (1) it must suspend or withdraw a GATT 1994 obligation or tariff concession; 
and (2) it must be designed to prevent or remedy serious injury to  a domestic industry caused or 
threatened by increased imports.8 
10. The Appellate Body found that its view that the application of the Safeguards Agreement turns 
on the "objective " of the measure was "buttressed " by the preamble to the Agreement, which 
stresses "the importance of structural adjustment ", and reiterates "the need to enhance rather than 
limit competition in international markets ".9 
11. Article 12.1 of the Safeguards Agreement further confirms the Appellate Body 's interpretation. 
This provis ion identifies certain acts, by an importing Member, that trigger the application of 
notification obligations in the Safeguards Agreement.  These include the following acts: (1) "initiating 
an investigatory process relating to serious injury or threat there of" to a domestic industry, "and the 
reasons for it "; and (2) "making a finding of serious injury of threat thereof caused by increased 
imports ". These notification obligations underscore the critical role in safeguards actions of a finding 
of serious injury to a domestic industry, caused by imports.  
12. The US argues that the Safeguards Agreement applies to a measure only if the importing 
Member formally invokes Article XIX of the GATT 1994. In setting out its incorrect interpretation  of 
the term "safeguard measure" under Article 1, the US essentially misunderstands the difference 
between three distinct questions: (i) whether a measure is a WTO safeguard; (ii) whether the 
importing Member has the right to apply a safeguar d measure; and (iii) whether the measures are 
applied in a manner consistent with the Safeguards Agreement.  
13. Driven by its misunderstanding of the fundamental distinction between these three questions, 
the US refers to inapplicable jurisprudence in supp ort of its arguments. The US notes,  for example, 
the Appellate Body 's statement that: "[n]otification under Article XIX … is 'a necessary prerequisite 
to establishing a right to apply a safeguard measure '".10 The US relies on the Appellate Body's 
statemen t to conclude erroneously that "[w]ithout an invocation of that right [through notification], 
a measure does not qualify as a safeguard under the WTO Agreement ".11  
14. However, the Appellate Body 's statement simply means that a Member must notify a 
safeg uard measure in order for the safeguard measure to be consistent with the Safeguards 
Agreement. The Appellate Body is not saying that the Member must notify a measure as  a safeguard 
in order for the Safeguards Agreement to apply  to that measure. Rather, as  the Appellate Body 
 
6 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.56.  
7 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.56.  
8 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.   
9 Appellate Body Report, Indonesia – Iron or Steel Products , footnote 189.  
10 The US' first written submission, para. 65.  
11 The US' first written submission, para. 67.  WT/DS561/R/Add.1  
 
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  explained in Indonesia – Iron or Steel Products , the applicability of the Agreement must be 
objectively determined, separately from the question whether a measure is consistent with the 
substantive and procedural conditions in Article X IX of the GATT 1994 and the Safeguards 
Agreement.12  
15. The US thus draws an incorrect distinction between the question of whether the Safeguards  
Agreement applies, on the one hand, and the question of whether that safeguard measure has been 
applied cons istently with various requirements, on the other hand.  
III. ARTICLE XIX OF THE GATT 1994 AND THE SAFEGUARDS AGREEMENT DO NOT 
OPERATE AS AN "AFFIRMATIVE DEFENSE "  
16. The US seems to treat Article XIX as an "affirmative defense ", which applies to "justify " a 
"violation " of the GATT, in two possible respects. First, Article XIX can be invoked by a Member 
imposing a measure ( "importing Member "), to justify a violation of the GATT 1994; and second, 
Article XIX can be invoked by a Me mber imposing retaliatory measures in response ( "retaliating 
Member "), i.e., to justify retaliation measures that would otherwise violate the GATT 1994. However, 
in both instances, the US argues that, for the "affirmative defense " to be available, the impo rting 
Member must have formally invoked Article XIX, when imposing its measure in the first place. If it 
does not do so, then neither the importing Member, nor the retaliating Member, can rely on 
Article  XIX to justify GATT violations.  
17. Norway stresses  that Article XIX does not operate as an "affirmative defense ". It should be 
recalled that the term "affirmative defense " is typically used to describe provisions like Article XX, 
i.e., measures which are invoked by a respondent in order to justify a viola tion of the GATT 1994. 
Norway points out that Article XIX and the Safeguards Agreement, by contrast, do not operate in 
this way. Rather, they establish distinct obligations that apply when a Member wishes to take a 
safeguard measure. Thus, if the importing  Member imposes a safeguard consistent with those 
obligations, there is no violation of the GATT 1994. In this sense, Article XIX and the Safeguards 
Agreement operate in the same way as Article VI; they contain their own specific set of obligations 
that, w hen particular substantive and procedural conditions are met, displace GATT obligations which 
would otherwise be applicable.  
18. The applicability of the Safeguards Agreement does not depend on the importing Member 's 
invocation, as it would, for example, under Article XX. Rather, the applicability of the Safeguards 
Agreement is subject to objective determination. The question is whether the measure satisfies the 
"constituent features " of a safeguard measure, as set out in Article 1 of the Safeguards Agreem ent.  
IV. INTER -PANEL COORDINATION  
19. The separate offensive and defensive dispute settlement proceedings originating from the US ' 
additional steel and aluminium tariffs are tightly interlinked. They are based on the same measures 
imposed by the US, and t he legal threshold questions to solve the disputes are identical. There is no 
procedural obligation for the individual Panels to avoid contradiction. However, in line with the role 
of the Panels in providing security and predictability to the multilateral trading system as mandated 
in the DSU Article 3.2, general legal reasoning would require coherence between conclusions 
spurring from identical issues. We presume that the efforts made to provide for the same Panel 
Members in the offensive disputes and the same Panel Chair in the defensive disputes reflect this 
need for coherence.  
20. To achieve the desired coherence, it appears logical that the panels should take into 
consideration the sequencing of the different panel deliberations and reports. The offens ive panels 
were established first, and thus, the Panels in the defensive disputes should be conscious about the 
Panels´ conclusions in the offensive disputes. This implies a certain interaction between the Panels. 
Norway is of the opinion that there is no need to search for a specific legal basis for such interaction; 
the question is rather whether the DSU precludes it - which does not appear to be the case. 
Contrastingly, Article 13 of the DSU does indeed reflect the need for panels, as described above, to  
 
12 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.57 . WT/DS561/R/Add.1  
 
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  obtain relevant information to ensure coherent legal analysis. Generally, interaction between the 
panels would ensure transparency and due process for the parties.  
21. The confidentiality obligation set out in Article 14 of the DSU limits, but does not p reclude 
consultations between the Panels. This provision requires the panel deliberations to be confidential, 
but consultations may be conducted in a limited way, i. e. through reporting of preliminary 
conclusions and the reasoning behind them. This limite d interaction would not reasonably qualify as 
"panel deliberations ". 
 WT/DS561/R/Add.1  
 
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  ANNEX  C-6 
INTEGRATED EXECUTIVE OF THE ARGUMENTS OF THE RUSSIAN FEDERATION  
I. Introduction  
Russia welcomes this opportunity to present its views as a third party in this dispute.  
Without prejudice to Russia 's position that it is up to a complainant to formulate the measures 
at issue, identify the legal basis of complaint in its panel request and to choose the seq uence of its 
argumentation as it deems more appropriate, Russia submits that in the dispute before this Panel 
the United States has articulated the improper legal basis for its claims. Thus, the United States 
attempts to misguide the Panel as to the releva nt legal and factual background of the dispute.  
The United States appears to relegate Turkey's exercise of essential right under Article 8.2 of 
the Agreement on Safeguards to counter the disruptive effects of the United States ' safeguards on 
their bilat eral trade by not raising concerns about the consistency of the resulted measures with 
Article 8.2 and by merely asserting that Turkey's measures violate Articles I and II of the General 
Agreement on Tariffs and Trade 1994 ( "GATT 1994").  
With that in m ind, Russia addresses particular aspects of this dispute relating to why it is 
important for a complainant to present the problem underlying the dispute in its entirety, as well as 
to the interpretation of Article XIX of the GATT 1994 and the Agreement on Safeguards.   
II. Order of  analysis  
In Russia 's view, the Panel should proceed with the examination of applicability of Article 8.2 
of the Agreement on Safeguards to the measures at issue.  
Russia believes that whether the United States properly formulated its request for 
establishment of a panel i s a jurisdictional matter and should be addressed first. If the Panel 
concludes that the United States failed to provide the legal basis for its claims properly, its analysis 
should stop there.  
If the Panel proceeds beyond these jurisdictional matters,  the Panel should consider whether 
the measures at issue are suspension of obligations in its nature and form that falls under Article 
8.2 of the Agreement on Safeguards.  
The proper order of analysis of the Panel is to start by recognizing that the mea sures at issue 
entail a suspension within the meaning of Article 8.2 of the Agreement on Safeguards and that, as 
a result, Turkey 's obligations under Articles I and II of the GATT 1994 were suspended. Since 
obligations under the said GATT Articles were sus pended, there is no legal basis to rule whether or 
not these obligations were violated as there is nothing to violate.  
Therefore, there is no need for the Panel to rule whether or not obligations under Articles I 
and II of the GATT were violated.  
III. Terms  of Reference  
This dispute presents not an ordinary situation. The complainant, being aware of the nature 
of the challenged measures (suspension of concessions) and of the legal basis for their adoption 
(Article  8.2 of the Agreement on Safeguards) decided not to challenge the consistency of the 
suspension itself with regard to a potential violation of the provisions under which the measures at 
issue were adopted (Article  8.2 of the Agreement on Safeguards). Rather, the complainant decided 
to challen ge the consistency of the measures at issue with respect to the obligations which were 
suspended.  
Russia submits that it is an inherent right of a complainant to choose what shall be challenged. 
However, Russia would like to stress that neither Turkey 's application of Article 8.2 of the Agreement WT/DS561/R/Add.1  
 
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  on Safeguards, nor its compliance therewith is contested by the United States in its request for 
establishment of a panel. Moreover, there is no panel 's or Appellate Body's ruling in either regard. 
Hence, Turke y's suspension of concessions or other obligations under GATT 1994 pursuant to 
Article  8.2 of the Agreement on Safeguards shall be presumed to be  WTO-consistent. The fact that 
the Council for Trade in Goods did not disapprove  Turkey 's suspension upholds th is presumption.  
In this context it should be noted that unlike, for example, provisions of Article 16.4 of the 
DSU ( "within 60 days … the report shall be adopted "), provisions of Article 8.2 of the Agreement on 
Safeguards do not contain any explicit o bligation for positive action on behalf of the Council for Trade 
in Goods. Furthermore, unlike the provisions of Article 22 of the DSU ( "authorization from the DSB 
to suspend "), provisions of Article 8.2 of the Agreement on Safeguards do not require CTG 's 
expressed authorization or permission in order to suspend concessions or other obligations. It should 
be noted that a decision to suspend substantially equivalent concessions or other obligations under 
the GATT 1994 in accordance with Article 8.2 of the Ag reement on Safeguards is an individual 
decision of a WTO Member. Of course, as it is stated in Article 8.2 of the Agreement on Safeguards, 
there must be no opposition by the CTG to the suspension. A Member may not implement its decision 
if the CTG disappro ves the suspension.  
A measure taken under Article 8.2 of the Agreement on Safeguards entails a suspension of 
concessions or other obligations under GATT 1994. In no way, a Member may raise a claim that such 
a measure violates those commitments and obli gations whose application was suspended. In fact, 
Article  8.2 of the Agreement on Safeguards  sets forth conditions under which a Member may lawfully 
suspend (as opposed to "violate ") its concessions or other obligations under GATT 1994. In cases 
where suspension occurred there can be no potential inconsistences with the obligations which were 
suspended, since in such cases there is simply nothing to comply with, and thus no element of 
inconsistency with suspended obligations can be found.  
In other words, where suspension is concerned, consistency or inconsistency of a Member 
with the suspended obligations cannot be a disputed issue. Instead, the only issue that can be 
disputed in such cases is consistency or inconsistency of the suspension itself with WTO obligations 
of a Member. Only after establishing a prima facie  case of inaccuracy of suspension itself under 
Article 8.2 of the Agreement on Safeguards , the complainant can elaborate o n alleged violations of 
Articles of the GATT  1994 which were not lawfully suspended. And only in such a case a panel may 
examine such allegations of the complainant, provided that this issue forms part of its terms of 
reference.  
Taking into account tha t the terms of reference of a panel are formed by panel request, and 
in its Panel Request the United States did not ask for the examination of Article 8.2 of the Agreement 
on Safeguards (or any other provision of the mentioned Agreement), the Panel is not authorized to 
make rulings and findings with respect to the compliance by Turkey with the positive obligations 
contained therein.   
In sum, the Panel should treat suspension under Article 8.2 of the Agreement on Safeguards 
as a matter of fact. Furthermore, the Panel is not in a position to rule on the consistency or 
inconsistency of the challenged measures with obligations under Articl es I and II GATT 1994 since 
these obligations were suspended.  
IV. Applicable Legal Standard  
First, Russia submits that being an emergency measure, a safeguard is not contingent upon 
formal invocation. There is no such obligation under the Agreement on  Safeguards and Article XIX 
of the GATT 1994. Rather, a Member is obliged to notify the imposition of such a measure with a 
view of ensuring other Members ' right for preserving a substantially equivalent level of concessions.  
It is the treaty language  of Article 8.2 of the Agreement on Safeguards that requires that 
suspension should not be disapproved. Turkey decided to suspend its obligations, took certain 
procedural steps under Article 8.2 including its notification to the Council for Trade in Goods and 
received no disapproval. Therefore, there is no question as to whether the suspension took place 
under Article  8.2 as it was authorized by the Council for Trade in Goods.  WT/DS561/R/Add.1  
 
- 71 - 
 
  
The fact that the United States has not notified its measures to the WTO pur suant to the 
Agreement on Safeguards is a procedural flaw of those measures that does not, however, affect in 
any way the substance of the measures and their qualification as safeguards. Similarly, for example, 
a technical regulation that has not been prop erly notified to the TBT Committee does not become 
less of a technical regulation.  
In sum, notification per se  is not a constituent element, absent which a safeguard does not 
exist. Notification is a legal requirement that should be met among other req uirements for such a 
measure to be WTO -consistent. A measure is a safeguard when it presents two constituent features, 
as explained by the Appellate Body in Indonesia - Iron or Steel Products ,1 and notification is not one 
of them.  
Second,  by assessing  the design, structure and expected operation of the measure at issue, 
the Panel should take into consideration that:  
(i) no agreement has been reached by Turkey  and the United States in the sense of Article  8.1 
of the Agreement on Safeguards;  
(ii) Turkey  has suspended substantially equivalent concessions or other obligations under 
GATT 1994 to the trade of the United States;  
(iii) Turkey followed all the procedural steps set out in Article 8 of the Agreement on 
Safeguards  while imposing the measures, incl uding the filing of the notification to the Council 
for Trade in Goods;  
(iv) the measures are designed and expected to operate for the purposes of compensation  for 
the adverse effects of the United States ' measures on Turkey 's trade;  
(v) the Council  for Tr ade in Goods did not disapprove the suspension.  
In Russia 's view, there is more than enough evidence on the record to conclude that Turkey 
suspended its obligations under Article 8.2 of the Agreement on Safeguards.  
Third, Russia submits that Articl e 8.2 of the Agreement on Safeguards cannot be treated as 
an affirmative defense by the Panel as this provision's nature is that of a positive rule. T he Agreement 
on Safeguards does not constitute an exception to GATT 1994 obligations. As regards the 
particularities of the present dispute, Article 8.2 of the Agreement on Safeguards sets forth 
conditions, i.e. positive obligations, under which a WTO Member may lawfully suspend its obligations 
under the GATT 1994 (not justify violation). Such rules include, inter alia , procedural requirements, 
for example, to submit a notification to the Council of Trade and Goods, and a material obligation 
that the application of concessions or other obligations under GATT 1994 shall be substantially 
equivalent to the suspens ion made by the initial safeguard measure against which such suspension 
is made. Thus, Article 8.2 of the Agreement on Safeguards contains a clear list of positive obligations 
and requirements for the suspension of concessions or other obligations under GA TT 1994. These 
provisions cannot be qualified as exceptions from obligations.  
In sum, since there is no obligation that could be violated (rather, these obligations were 
suspended), the Panel has neither legal basis to rule on the consistency or incon sistency of the 
measures at issue with Articles I and II of the GATT 1994, nor legal basis to treat Article 8.2 of the 
Agreement on Safeguards as an affirmative defense . 
V. The relationship between DS 561 and DS 564 disputes   
Russia 's principal positio n is that the Panel in this dispute should assess the matter before it 
on its own merits as required by Article 11 of the DSU. The Panel should also act strictly within its 
terms of reference under Article 7.1 of the DSU. There are also the following nuanc es the Panel 
should take into account.   
 
1 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  WT/DS561/R/Add.1  
 
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On the one hand, Russia's position is that the existence of an underlying measure is not a 
threshold issue for the determination of the applicability of Article 8.2 of the Agreement on 
Safeguards. For the resolut ion of the dispute before this Panel the legal characterization of whether 
the United States' measures constitute a safeguard measure or not is not required nor is contested 
as a part of issue of potential inconsistency of Turkey 's suspension under Article  8.2 of the 
Agreement on Safeguards as well as Turkey 's suspension itself. It is undisputed fact that the 
United  States applies the import duties in respect of the goods originating from Turkey, as well as 
some other countries, beyond the rate established in the United States ' Schedule. Moreover, Turkey 
in very clear terms adopted its measures under Article 8.2 of the Agreement on Safeguards. 
Therefore, the Panel should treat suspension under Article 8.2 of the Agreement on Safeguards as 
a matter of fact.  
At the same time, the issues arising in the present Panel proceedings may overlap to a certain 
extent with those raised in other disputes brought by certain WTO Members against the 
United  States, including the one initiated by Turkey ( United States – Certain Measures on Steel and 
Aluminium Products ). This overlap would arise in respect of the proper legal characterization of the 
United States ' measures should the Panel here decide that it needs to rule on legal characterization 
of the United States ' measures regardless of Russia's position that the existence of an underlying 
measure is not a threshold issue for the determination of the applicability of Article 8.2 of the 
Agreement on Safeguards.  
Taking into account that the core issue of dispute DS5 64 is whether the United States ' 
measures constitute safeguard measures and whether certain GATT 1994 and Agreement on 
Safeguards ' provisions were violated by such United States ' measures, issue of whether the United 
States' Section 232 duties constitute safeguard measures is a question of law in that dispute as it 
requires analyses of consistency or consistency with the requirements of the claimed treaty 
provisions.  
In this regard, Russia reminds that the ultimate goal of the Panel is to make such findings "as 
will assist the DSB in making the recommendations or in giving the rulings provided for in the covered 
agreements". The achievement of this goal will be seriously preju diced should the Panel engage in 
parallel examination of the underlying safeguard measures.  
Therefore, should the Panel recognize that the question as to "whether the US safeguard 
measures on imports of aluminium and steel exist" is a question of law in this dispute, the Panel 
would have to follow the DS564 panel's lead insofar as the issue is the proper qualification of the 
United States ' measures.  
 WT/DS561/R/Add.1  
 
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  ANNEX C -7 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SWITZERLAND  
I. INTRODUCTION  
1. Switzerland exercises its right to participate as a third party in this case  because of its systemic 
interest in the correct and consistent interpretation and application of Article XIX of the General 
Agreement o n Tariffs and Trade (the GATT 1994) and the Agreement on Safeguards.  
2. Switzerland notes that the present dispute relates to measures taken by Turkey in response 
to the import adjustment measures imposed by the United States on certain steel and aluminiu m 
products which are themselves being challenged in ongoing WTO proceedings by seven WTO 
Members including Switzerland (DS544, DS547, DS548, DS552, DS554, DS556 and DS564). As 
highlighted in its request for the establishment of a panel in DS556, Switzerlan d considers that the 
adjustment measures imposed by the United States on imports of certain steel and aluminium 
products constitute safeguard measures falling within the scope of the Agreement on Safeguards.  
II. GENERAL OBSERVATIONS  
3. Switzerland notes th at Article XIX of the GATT 1994 establishes a right  to impose safeguard 
measures provided that certain conditions and circumstances listed in that provision and in the 
Agreement on Safeguards are satisfied. These requirements include inter alia the obligat ion for the 
Member proposing to apply a safeguard measure to endeavour, pursuant to Article 8.1 of the 
Agreement on Safeguards, to maintain a substantially equivalent level of concessions and other 
obligations to that existing under the GATT 1994 between i t and the Members which would be 
affected by such a measure, in accordance with the provisions of paragraph 3 of Article 12 of the 
Agreement on Safeguards.   
4. In the absence of an agreement on adequate means of trade compensation for the adverse 
effects o f the measure, the Agreement on Safeguards grants affected  Members the right to suspend 
the application of substantially equivalent concessions or other obligations under the GATT 1994. 
The exercise of this "right of suspension ", as referred to in Article 8.3 of the Agreement on 
Safeguards, is subject to the substantive and procedural requirements listed in Article XIX:3 (a) of 
the GATT 1994 and Article 8 of the Agreement on Safeguards. This right of suspension  of equivalent 
concessions of other obligations under the GATT 1994 to the trade of the Member applying the 
safeguard measure  sets per definition Article I of the GATT 1994 aside, as well as Article II of the 
GATT  1994, if the measure is taken in the form of a duty in excess of those set forth in the Member 's 
Schedule.   
5. Thus, if a complainant considers that the respondent has failed to comply with the 
requirements applicable to Members taking rebalancing measures, it is for the complainant to make 
a prima facie  case of violation of Article XIX:3 (a) of the GATT 1994 and Article 8 of the Agreement 
on Safeguards. We note that the United States has not brought any such claims. Thus, if the Panel, 
making an objective assessment of the matter before it, as pro vided for under Article 11 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), finds that 
Article XIX of the GATT 1994 and the Agreement on Safeguards are applicable to the case at hand, 
it would thus need to reject the  United States ' claims, which are solely based on Article I and Article  II 
of the GATT 1994.  
6. Switzerland notes that, even though the United States ' panel request does not identify the 
Agreement on Safeguards, that agreement has been identified by Turke y. The Panel 's terms of 
reference are "to examine, in the light of the relevant provisions cited by the parties to the dispute, 
the matter referred to the Dispute Settlement Body (DSB) by the United States in document 
"WT/DS561/2 ". Article 8 of the Agreeme nt on Safeguards is one of the provisions cited by Turkey. 
The Panel is therefore required, in accordance with its terms of reference, to examine the matter 
referred to by the United States in light of that provision.  WT/DS561/R/Add.1  
 
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  III. OBSERVATIONS ON THE APPLICABILITY  OF THE AGREEMENT ON SAFEGUARDS  
a) Principles  applicable to the legal characterization of the measures at issue  
7. Contrary to what the United States argues in this dispute, the legal characterisation of a 
measure for the purposes of determining the applicability of a relevant provision or agreement is 
not an issue to be decided unilaterally by the Member taking the me asure. It is an issue that must 
be determined objectively. In other words, the examination as to whether the provisions of the 
covered agreements are "applicable " and "relevant " to the case at hand is part of the panel 's duty 
to make an "objective assessme nt" pursuant to Article 11 of the DSU1. 
8. The Panel 's duty to conduct an "objective assessment of the matter " implies that the Panel is 
not bound by the way the Member concerned characterises the measure in its municipal law. Indeed, 
the description of t he measure by a party and "the label given to [it] under municipal law " "cannot 
be the end of [the Panel 's] analysis "2 and are "not dispositive " of the proper legal characterization 
of that measure under the covered agreements "3. As the Appellate Body emphasized, "a panel must 
assess the legal characterization for purposes of the applicability of the relevant agreement on the 
basis of the 'conten t and substance ' of the measure itself "4.  
9. The Appellate Body noted in Indonesia – Iron or Steel Products  that the manner in which the 
measure is characterized under domestic law, the domestic procedures that led to the adoption of 
the measure, and any  relevant notifications to the WTO Committee on Safeguards are relevant 
factors in such an evaluation. However, "no one such factor is, in and of itself, dispositive of the 
question of whether the measure constitutes a safeguard measure within the meaning of Article 1 
of the Agreement on Safeguards "5.  
10. Thus, the fact that a Member has not "invoked " its right to implement a safeguard measure 
or has not notified the measure at issue to the WTO Committee on Safeguards does not mean that 
such measure is no t a "safeguard measure " within the meaning of Article 1 of the Agreement on 
Safeguards. As emphasized above, the proper legal characterization of a measure has to be based 
on the content and substance of the measure itself.  
b) Constituent features  of a saf eguard measure  
11. On the basis of the text of Article 1 of the Agreement on Safeguards and Article XIX of the 
GATT 1994 read in its context, in order to be a safeguard measure, a measure must present two 
constituent features, identified by the Appellate B ody in Indonesia – Iron or Steel Products .  
12. First, the measure must suspend, in whole or in part, a GATT obligation or withdraw or modify 
a GATT concession. This follows from the text of Article XIX:1(a) of the GATT 1994 which refers to 
measures that s uspend a GATT obligation and/or withdraw or modify a GATT concession.  
13. Second, the suspension, withdrawal, or modification in question must be designed to prevent 
or remedy serious injury to the Member 's domestic industry caused or threatened by increas ed 
imports of the subject product. As the Appellate Body emphasized, "[t]he use of the word 'to' […] 
indicates that the suspension of a GATT obligation or the withdrawal or modification of a GATT 
concession must be designed to pursue a specific objective, namely preventing or remedying serious 
injury to the Member 's domestic industry "6. Thus, the suspension of a GATT obligation or the 
withdrawal or modification of a GATT concession must have "a demonstrable link " to the objective 
of preventing or remedying  injury7. 
14. Switzerland considers that additional features, such as the "extraordinary " character of the 
measure, its complementary relationship with trade remedy measures, its focus on the "import " of 
the products concerned or the fact that it has been adopted pursuant to a procedure which is very 
 
1 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.31.  
2 Appellate Body Report, US – Large Civil Aircraft (2nd Complaint) , para. 593.  
3 Appellate Body Report, Indonesi a – Iron or Steel Products , para. 5.32.  
4 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5 .32. 
5 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5. 60. 
6 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.56.  
7 Appellate Body Report, Indonesia – Iron or Steel products , para. 5.56 . WT/DS561/R/Add.1  
 
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  similar to the procedure followed in safeguard investigations constitute additional elements 
supporting its qualification as a "safeguard measure ", even t hough it is not labelled as a "safeguard 
measure " in the Member 's domestic law.   
15. The assessment of whether a measure presents the features highlighted above, and thus 
constitutes a safeguard measure, is to be made on a case -by-case basis, taking into a ccount the 
design, structure, and expected operation of the measure as a whole. In order to make such an 
objective assessment, "a panel must identify all the aspects of the measure that may have a bearing 
on its legal characterization, recognize which of t hose aspects are the most central to that measure, 
and, thereby, properly determine the disciplines to which the measure is subject "8. 
16. Once it is established that the measure presents those constituent features, that measure falls 
within the scope of application of Article XIX of the GATT 1994 and the Agreement on Safeguards.  
c) Observations  regarding the two -step test cited by the United States  
17. The United States submits that a two -step analysis is called for under Article XIX of the GATT: 
the rig ht to apply a safeguard measure as a first step and whether that safeguard measure has been 
applied consistently with the various requirements as a second. The United States considers that the 
invocation of Article XIX is a condition precedent that must be  established not only with respect to 
the second step but as an initial matter9. The United States refers to the Appellate Body report in 
US – Line Pipe  in order to support its arguments.  
18. However, in that case, the Appellate Body has not examined the  issue of the existence of a 
safeguard measure. The distinction made by the Appellate Body was between two inquiries relating 
to the consistency  of a safeguard measure with Article XIX of the GATT 1994 and the Agreement on 
Safeguards. Both inquiries relate d to obligations  laid down in Article XIX of the GATT 1994 and the 
Agreement on Safeguards, but each inquiry related to a different type of obligations: on the one 
hand, the obligations that must be satisfied in order for the Member to have the right to ap ply a 
safeguard measure and, on the other hand, the obligations relating to the extent of the safeguard 
measure.   
19. The issue of the existence of a safeguard measure must not be confused with the issue of 
whether such safeguard measure is consistent with  the conditions and requirements laid down in 
Article XIX of the GATT 1994 and in the Agreement on Safeguards. As noted by the Appellate Body 
in Indonesia – Iron or Steel Products , "it would be improper to conflate factors pertaining to the 
legal character ization of a measure for purposes of determining the applicability  of the WTO 
safeguard disciplines with the substantive conditions and procedural requirements that determine 
the WTO -consistency  of a safeguard measure "10.  
20. The "right" to apply a safeguard measure refers to the fulfilment of certain requirements  
provided for in Article XIX of the GATT 1994 and the Agreement on Safeguards . The exercise of the 
right to impose a safeguard measure must in turn fulfil certain requirements in  order to be "within 
the limits set out in the treaty "11. Accordingly, contrary to what the United States argues, both 
inquiries identified by the Appellate Body in US – Line Pipe  related to the WTO -consistency  of a 
measure, and not to its legal character ization as a safeguard measure.   
d) Notification  is not a constituent feature of a safeguard measure  
21. The notification requirements laid down in Article 12 of the Agreement on Safeguards are 
unrelated to the issue of whether a measure constitutes a safeguard measure.  
22. As the Appellate Body stated in Korea – Dairy regarding the object and purpose of Art icle 12, 
"the notification serves essentially a transparency and information purpose "12. Thus, the notification 
 
8 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60. 
9 United States ' first written submission, para s. 69 and 72. 
10 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5. 57. (emphasis original)  
11 Appellate Body Report, Indonesia – Iron or Steel Products , Fn. 193, referring to Appellate Body 
Report, US – Line Pipe, para. 84.  
12 Appellate Body Report, Korea  - Dairy , para. 111, referring to the Panel Report, para. 7.126.  WT/DS561/R/Add.1  
 
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  requirements constitute "obligations " but are not a "constituent feature " of a safeguard. In other 
words, they do not determine the existence o f a safeguard measure, as argued by the United States.  
23. The notification obligations provided for under Article 12 of the Agreement on Safeguards are 
thus conditions  – among others – for a Member to lawfully exert its right to apply a safeguard 
measure  and not a constituent feature of a safeguard measure, the absence of which would impede 
the characterization of the measure as a safeguard. Accordingly, if a Member fails to fulfil its 
notification obligations under the Agreement on Safeguards, a panel wo uld conclude that the Member 
concerned acted inconsistently with its obligations under Article 12 of the Agreement on Safeguards 
and not that a safeguard measure does not exist.  
24. If the invocation of the right to take a safeguard measure by way of noti fication were – as 
argued by the United States – a prerequisite for a safeguard measure to exist, it would suffice for a 
Member not to notify a measure in order to avoid the application of Article XIX of the GATT 1994 
and the Agreement on Safeguards – and thus to circumvent its obligations under these provisions. 
Doing so would also unilaterally deprive affected Members of their right to take rebalancing measures 
under Article XIX:3 (a) of the GATT 1994 and Article 8 of the Agreement on Safeguards.  
III. INTER-PANEL COORDINATION  
25. To the extent that the determination of the applicability of the Agreement on Safeguards to 
Turkey 's measure depends on whether the underlying measures, namely the US measures on import 
on steel and aluminium, are safeguard measur es, there is a direct link between this dispute and the 
dispute in which the underlying US measures on imports on steel and aluminium are challenged 
(DS564).  
26. Pursuant to Article 3.2 of the DSU "the dispute settlement system of the WTO is a central 
element in providing security and predictability to the multilateral trading system ", and, pursuant to 
Article 3.7 of the DSU, "the aim of the dispute settlement mechanism is to secure a positive solution 
to a dispute ". Contradictory findings in this dispute a nd in the other disputes concerning measures 
taken in response  to the import adjustment measures imposed by the United States on certain steel 
and aluminium products on the one hand, and disputes concerning these import adjustment 
measures on the other han d, would not be consistent with those principles.  
27. In Switzerland 's view, the Panel would act within the bounds of its discretionary authority 
under Article 13 of the DSU in seeking information from the panel in DS564, as long as it maintains 
the delibe rations confidential as required by Article 14 of the DSU and respects the requirements of 
due process. In particular, the other panel should not participate in the internal discussions and 
decision process of this Panel and vice-versa .  
28. Switzerland no tes that another option would be for the Panel not to issue its report until the 
report of the panel in DS564 has been issued, keeping in mind the rule under Article 12.2 of the 
DSU that "[p]anel procedures should provide sufficient flexibility so as to en sure high -quality panel 
reports  while not unduly delaying the panel process ". This would allow the Panel to take into account 
the findings of the panel in DS564.  
 WT/DS561/R/Add.1  
 
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  ANNEX C-8 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE* 
1. INTRODUCTION  
1. Ukraine welcomes the opportunity to participate as a third party in case Turkey – Additional 
Duties on Certain Products from the United States  and to present its views on certain issues rai sed 
by parties in this dispute. Ukraine will provide its comments on the interpretation and application of 
the provisions of the WTO agreements discussed before this Panel.  
2. While not taking a final position on the specific merits of this case, Ukraine w ill provide its 
views on some of the legal claims advanced by the Parties to the dispute. In particular, Ukraine will 
make submissions on the issue whether the United States failed to present proper claims before the 
Panel by not addressing Article XIX:3 o f the General Agreement on Tariffs and Trade 1994 
("GATT  1994") and the Agreement on Safeguards in its panel request.  
3. Ukraine reserves the right to raise other issues at the third party hearing with the Panel.  
2. CLAIMS REGARDING THE UNITED STATES ' FAILURE TO PRESENT PROPER CLAIMS 
BEFORE THE PANEL  
4. This dispute raises an important issue of the panel 's terms of reference under Article 7 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes ( "DSU") as well as  
what informa tion in panel request is "sufficient to present the problem clearly " under Article 6.2 of 
the DSU. Ukraine would like contribute to the understanding of these Articles, outline its vision, and 
help the Panel in the analysis without making judgments on the facts of the case.  
5. Not for the repetition but for the sake of clarity, Ukraine would briefly provide the background 
of this claim. In this case, the United States challenges the additional duties for some products 
originating in the United States impose d by Turkey only under Articles I and II of the GATT 1994.1 
In this respect, Turkey claims that its measures are taken pursuant to Article XIX:3 of GATT 1994 
and Article 8.2 of the Agreement on Safeguard and the United States was aware of this fact as it 
was explicitly specified in its notification of the measures to the Council for Trade in Goods on 29 
March 2019.2 However, the United States did not to make any claim with regard to the Agreement 
on Safeguards, because of its belief that it is "within the  judgment of the WTO Member imposing the 
measure " to characterise such measure as being safeguard or not.3  
6. In this regard, Ukraine would like to put on record the following. First, it is beyond dispute 
that Article 3.3 of the DSU entitles a Member tha t considers that any benefits accruing to it directly 
or indirectly under the covered agreements are being impaired by measures taken by another 
Member to have recourse to the WTO dispute settlement mechanism to be able to redress the 
violations.  
7. Second , it is also clear that a Member is largely self -regulating under Article 3.7 of the DSU 
and it must be presumed by panels and the Appellate Body that "whenever a Member submits a 
request for establishment of a panel, that such Member does so in good faith , having duly exercised 
its judgement as to whether recourse to that panel would be 'fruitful '."4 
 
* Ukraine requested that its written submission is used as its integrated executive summary.  
1 First Written Submission of the United States, para s. 2, 5. 
2 First Written Submission of Turkey,  para. 2.16. 
3 First Written Submission of the United States, para. 76. 
4 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 74.  WT/DS561/R/Add.1  
 
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  8. Third, Article 7.2 of the DSU states that "panels shall address the relevant provisions in any 
covered agreement or agreements cited by the parties  to the  dispute "5 referring to parties and not 
a party meaning that panels shall address the provisions of the agreements raised by both parties 
(complaining and responding).  
9. Fourth, it is however settled case law that a panel 's terms of reference is determined by the 
panel request6 and panels thus cannot rule on the issues that were not included in the panel request. 
In our case, this means that the Panel cannot rule whether Turkey acted consistently or 
inconsistently with the Agreement on Safeguards as there were no claims raised b y the United States 
under this Agreement.  
10. Fifth, findings in EC – Tariff Preferences  and Brazil – Taxation  cases stipulate that when the 
complaining party is aware that the challenged measure was adopted under the specific agreement, 
a complaining part y is obliged to identify the relevant provisions of this specific agreement in its 
panel request.7 
11. Thus, Ukraine sees two plausible scenarios of the situation. On the one hand, there is the 
loop-hole for the complaining party to escape from its obliga tion to present the problem clearly under 
Article 6.2 of the DSU in such cases where we hypothetically presume that a complainant intently 
fails to address the claim under the specific agreement and simply refers to the GATT 1994 violation 
when the issue i s really governed by that specific agreement. On the other hand, the complaining 
party is completely right, when we one more time presume, that the claim falls exclusively under 
GATT 1994 and not under, for example, the Agreement on implementation of Artic le VI of the 
General Agreement on Tariffs and Trade 1994, the Agreement on Subsidies and Countervailing 
Measures, the Agreement on Safeguards, etc.  
12. It is logically that in the first presumed instance, panel should decline to rule on the violation. 
However, in the second, it flows that if panel declines to rule, it will deprive the complaining party 
of its right to "a positive solution to a dispute " under Article 3.7 of the DSU.  
13. Leaving the presumption behind, Ukraine therefore believes that the Pan el, while making its 
analysis, should look into the nature of the measure at issue to find whether it is in its terms of 
reference as was stated in paragraph 9 of this submission.  
14. Notwithstanding the provision of Article 3.10 of the DSU that "complaint s and counter -
complaints in regard to distinct matters should not be linked ", Ukraine is of the view that the result 
of this dispute cannot contradict and is tightly connected to the findings of the panel in the ongoing 
United States – Certain Measures on Steel and Aluminium Products case brought by Turkey as in 
that case Turkey claims the violation of the United States under the Agreement on Safeguard.  
15. To summarize and to make it clear, Ukraine is without prejudice whether the United States 
measures w ere safeguard measures or not, Ukraine rather believes that it is the Panel 's task firstly 
to look into the nature of the measure to understand if the Panel can then continue its analysis of 
the GATT 1994 violations.  
3. CONCLUSIONS  
16. Ukraine hopes that its contribution in the present dispute will be helpful to the Panel in 
objectively assessing the matter before it and in developing the respective legal interpretations of 
the WTO agreements. Ukraine thanks the Panel for the opportunity to share its views and would be 
happy to provide further comments on the third -party session or answer any questions the Panel 
may have.  
_______________  
 
5 DSU, Article 7.2 (emphasis added).  
6 See for example, Appellate Body Report, EC and certain Member States – Large Civil Aircraft, 
para. 639 (referring to Appellate Body Report, Guatemala – Cement I , paras. 72 and 73; Appellate Body 
Report, US – Carbon Steel , para. 125; Appellate Body Report, US – Continued Zeroing para. 160) . 
7 See for example, Appellate Body Report, EC – Tariff Preferences , para. 118 ; Appellate Body Report, 
Brazil – Taxation , para 5.366 . WT/DS561/R/Add.1  
 
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  ANNEX D  
COMMUNICATIONS BY THE PANEL  ON REQUESTS FOR ENHANCED THIRD -PARTY RIGHTS  
Contents  Page  
Annex  D-1 Communication by the Panel on requests for enhanced third -party rights  80 
 
 
 WT/DS561/R/Add.1  
 
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  ANNEX D -1 
COMMUNICATION BY THE PANEL ON REQUESTS FOR ENHANCED THIRD -PARTY RIGHTS  
The Panel refers to the separate communications from Canada1, Russia2, the European  Union3, 
China4 and Mexico5 (hereafter "the requesting third parties"), asking that the Panel exercise its 
discretion under Article 12.1 of the DSU to grant all third parties additional rights  to those provided 
in Article  10 of the DSU. In particular, the requesting third parties  requested the Panel to grant the 
following rights: (i) to receive copies of all of the parties' written submissions, their oral statements, 
rebuttals and answers to qu estions from the Panel and each other, through all stages of the 
proceedings; (ii) to be present for the entirety of all substantive meetings of the Panel with the 
parties; and (iii) to review the draft summary of their own arguments in the descriptive par t of the 
Panel Report. In addition, the requesting third parties, except for China, also requested the Panel to 
allow them to make a brief oral statement during the second substantive meeting.  
The requesting third parties argue that particular circumstanc es exist in this dispute that warrant 
the granting of enhanced third -party rights, including that: (i) the measure that has been challenged 
by the United States in this dispute is similar to the measures that have been challenged by the 
United States in th e five (5) disputes initiated against the requesting third parties; (ii)  the outcome 
of this dispute may have a significant impact on the Panels' findings and recommendations in the 
other five (5) disputes initiated by the United States against the request ing third parties; (iii) the 
number of responding parties as well as third parties participating in these six disputes demonstrates 
the outcomes of these disputes will have important legal and systemic implications on the entire 
WTO Membership; and (iv) th e enhanced third -party rights requested would not negatively affect 
due process in general; or specifically, the due process rights of the United States; or would impose 
any additional burden on the United States.  
The Panel requested the parties' views on each of the five  (5) requests for enhanced third -party 
rights. Turkey supported these requests. For Turkey, the similarities between the measure 
challenged by the United States in this dispute and those in the other five (5) Additional Duties 
disputes, as well as the fact that the United  States has brought, simultaneously to this dispute, 
disputes against the requesting third  parties, constitute special circumstances that warrant the 
granting of enhanced third -party rights. Turkey also noted that the specif ic enhanced rights 
requested by the third parties would not impose any undue additional burden on the parties to this 
dispute.  
The United States, for its part, requested that the Panel deny these requests for enhanced third -party 
rights. The United States is concerned that the respondents in all six (6) Additional Duties disputes 
may be using the additional requested rights to function as co -respondents in these disputes. For 
the United States, these requests are not well founded under the DSU, and the gran ting of additional 
rights to third parties would result in a corresponding imposition of additional obligations on the 
parties. The United States also argued that additional obligations may not be imposed on a disputing 
party absent its consent.  
The Panel  understands that it enjoys discretion to grant additional rights to third parties so long as 
such rights are consistent with the DSU and due process.6 Prior panels have on occasion exercised 
this discretion and granted additional third -party rights in certain circumstances, which could, for 
instance, include situations where the measures at issue result in significant economic benefits for 
certain third  parties7; situations where third parties maintained measures similar to the measures 
 
1 Communication dated 15 March 2019.  
2 Communication dated 19 March 2019.  
3 Communication dated 20 March 2019.  
4 Communication dated 20 March 2019.  
5 Communication dated 22 March 2019.  
6 Appellate Body Reports, US – FSC (Article 21.5 – EC), para. 243; EC – Hormones (Canada) , 
para. 154; US – 1916 Act , para.  150. See also Panel Reports, EC – Export Subsidies on Sugar , para.  2.3; 
Korea – Nucleoids , Annex D -2. 
7 Panel Reports, EC – Bananas  III (Guatemala and Honduras), para. 7.8; EC – Tariff Preferences , 
Annex  A, para.  7(a); EC – Export Subsidies on Sugar , para. 2.5.   WT/DS561/R/Add.1  
 
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  at issue8; or where practical considerations arise from a third party's involvement as a party in a 
parallel panel proceeding.9 The Panel is not persuaded that the cir cumstances of the requests before 
it would warrant the granting of enhanced third -party rights .  
The Panel disagrees with the requesting third parties' assertion that the alleged similarity of the 
challenged measures in the six (6) Additional Duties disputes requires that the Panel grant enhanced 
third-party rights in this particular dispute. While un derstanding the interest of the requesting third 
parties in the outcome of this dispute, the Panel considers that, in addition to their ability to present 
their views in this dispute as third parties, each of the requesting third parties is the respondent in 
one of the other five (5) Additional Duties disputes, and will therefore have the opportunity to defend 
its own challenged measures in its respective panel proceedings.  
Although the Panel appreciates the systemic importance of the outcome of these disp utes for all 
third parties, the Panel is not persuaded that the rights provided for in Article 10 of the DSU would 
not suffice to allow their interests to be fully taken into account. Consistent with Article 10.2 of the 
DSU, all third parties in panel proc eedings may be presumed to have a substantial interest in the 
matter before the Panel.10 WTO Members have a collective interest in the interpretation of covered 
agreements, and panels' interpretations of WTO agreements are, by definition, of systemic 
importance to WTO Members.11 
The requesting third parties have also argued that granting their requests would not negatively affect 
due process or impose any undue additional burden on the parties. The Panel notes that the 
requesting third parties are asking the Panel to go beyond what is specifically provided for in the 
DSU, despite the lack of agreement by the parties on the requests. In the Panel's view, this should 
be enough to raise due process concerns. Furthermore, the Panel notes that the requested enh anced 
third-party rights would impose upon the parties the additional burdens of processing and reviewing 
numerous third -party submissions in addition to those foreseen in Article 10 of the DSU, and 
eventually responding to related questions from the Panel  or the other party.  
In considering requests for enhanced third -party rights, the Panel must be mindful of the distinction 
drawn in the DSU between parties and third parties, which should not be blurred.12 In this respect, 
the Panel agrees with the United  States that, when considering whether the balance of rights and 
obligations of parties and third parties agreed to in the DSU may be altered, it is important to bear 
in mind the absence of an agreement of the parties to the dispute. The Panel is not persu aded that 
the arguments put forward by the requesting third parties justify altering such a balance without the 
agreement of the parties.13  
In the light of the foregoing, the Panel declines the requests for enhanced third -party rights 
submitted by Canada , Russia, the European Union, China and Mexico . 
 
_______________  
 
 
8 Panel Report, EC – Tariff Preferences , Annex A, para. 7(b).  
9 Panel Report, EC — Hormones (Canada) , para. 8.17.  
10 Panel Report, EC and certain member States – Large Civil Aircraft , para.  7.166.  
11 Panel Report, India – Solar Cells , para. 7.35.  
12 Panel Report, EC- Bananas III (Guatemala and Honduras) , para.  7.9. See also, Panel Reports, 
EC – Tariff Preferences , Annex A, para.  7(d); EC –Export Subsidies on Sugar (Australia, Brazil and Thailand) , 
para. 2.7; EC and certain member States – Large Civil Aircraft , para.  7.166; Korea – Nucleoids , Annex D -3. 
13 Numerous panels have denied requests for enhanced third -party rights when one of the parties has 
objected to such request, e.g. in EU – Biodiesel (Indonesia) , Korea – Radionuclides , US – Coated Paper 
(Indonesia) , Indonesia – Import Licensing Regimes , US – Washing Machines , EC – Seal Products  and 
Argentina  – Import Measures . WT/DS561/R/Add.1  
 
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  ANNEX  E 
TABLE OF RELEVANT DUTY RATES  
Contents  Page  
Annex  E-1 Table of relevant dut y rates 83 WT/DS561/R/Add.1  
 
- 83 - 
 
  ANNEX E -1 
TABLE OF RELEVANT DUTY RATES  
Based on Exhibits USA -6, USA -7, and USA -8; Türkiye's first written submission, para. 2.22 and 
footnote 37; United States' r esponse to Panel question Nos. 4 and 5; Türkiye's response to Panel 
question No. 73; the parties' comments on the draft descriptive part of this Report; Türkiye's 
communication to the Panel of 18 April 2023; the United States' communications to the Panel o f 
20 March 2023 and 25 April 2023; and the WTO's Consolidated Tariff Schedule (CTS) database.  
 
 4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
1 08.02  080211100000  43.2 15 10 20 
2  080211900000  43.2 15 10 20 
3  080212100000  43.2 15 10 20 
4  080212900000  43.2 15 10 20 
5  080221000000  43.2 43.2 10 20 
6  080222000000  43.2 43.2 10 20 
7  080231000000  43.2 15 10 20 
8  080232000000  43.2 15 10 20 
9  080241000000  43.2 43.2 10 20 
10  080242000000  43.2 43.2 10 20 
11  080251000000  43.2 43.2 10 20 
12  080252000000  43.2 43.2 10 20 
13  080261000000  43.2 43.2 10 20 
14  080262000000  43.2 43.2 10 20 
15  080270000000  43.2 43.2 10 20 
16  080280000000  43.2 43.2 10 20 
17  080290100000  43.2 43.2 10 20 
18  080290500011  43.2 43.2 10 20 
 
1 The United States submitted tables showing Türkiye 's 2018 and 2019 MFN rates (Exhibits USA -7 and 
USA-8). There is, however, no d ifference between the 2018 and 2019 rates, and so we list them only once in 
this Table. Neither party has argued that the MFN rates have changed in the years 2020 -2022.  WT/DS561/R/Add.1  
 
- 84 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
19  080290500012  43.2 43.2 10 20 
20  080290850000  43.2 43.2 10 20 
21 10.06  100610100000  45 15 25 50 
22  100610300000  45 34 25 50 
23  100610500000  45 34 25 50 
24  100610710000  45 34 25 50 
25  100610790000  45 34 25 50 
26  100620110000  45 36 25 50 
27  100620130000  45 36 25 50 
28  100620150000  45 36 25 50 
29  100620170000  45 36 25 50 
30  100620920000  45 36 25 50 
31  100620940000  45 36 25 50 
32  100620960000  45 36 25 50 
33  100620980000  45 36 25 50 
34  100630210000  45 45 25 50 
35  100630230000  45 45 25 50 
36  100630250000  45 45 25 50 
37  100630270000  45 45 25 50 
38  100630420000  45 45 25 50 
39  100630440000  45 45 25 50 
40  100630460000  45 45 25 50 
41  100630480000  45 45 25 50 
42  100630610000  45 45 25 50 
43  100630630000  45 45 25 50 
44  100630650000  45 45 25 50 WT/DS561/R/Add.1  
 
- 85 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
45  100630670000  45 45 25 50 
46  100630920000  45 45 25 50 
47  100630940000  45 45 25 50 
48  100630960000  45 45 25 50 
49  100630980000  45 45 25 50 
50  100640000000  45 45 25 50 
51 2106.90  210690200000  102 17.3 MIN 1 
EUR/ %vol/ hl 10 20 
52  210690300000  58.5 58.5 10 20 
53  210690510000  58.5 58.5 10 20 
54  210690550000  58.5 58.5 10 20 
55  210690590000  58.5 58.5 10 20 
56  210690920000  53 12.8 10 20 
57  210690980012  58.5 9 + T1  10 20 
58  210690980013  58.5 9 + T1  10 20 
59  210690980014  58.5 9 + T1  10 20 
60  210690980015  58.5 9 + T1  10 20 
61  210690980016  58.5 9 10 20 
62  210690980019  58.5 9 + T1  10 20 
63 22.08  220820120000  102 0 70 140 
64  220820140000  102 0 70 140 
65  220820260000  102 0 70 140 
66  220820270000  102 0 70 140 
67  220820290000  102 0 70 140 
68  220820400000  102 0 70 140 
69  220820620000  102 0 70 140 
70  220820640000  102 0 70 140 WT/DS561/R/Add.1  
 
- 86 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
71  220820860000  102 0 70 140 
72  220820870000  102 0 70 140 
73  220820890000  102 0 70 140 
74  220830110000  85 0 70 140 
75  220830190000  85 0 70 140 
76  220830300000  85 0 70 140 
77  220830410000  85 0 70 140 
78  220830490000  85 0 70 140 
79  220830610000  85 0 70 140 
80  220830690000  85 0 70 140 
81  220830710000  85 0 70 140 
82  220830790000  85 0 70 140 
83  220830820000  85 0 70 140 
84  220830880000  85 0 70 140 
85  220840110000  102 0.6 EUR/ 
%vol/ hl + 3.2 
EUR/ hl 70 140 
86  220840310011  102 0 70 140 
87  220840310012  102 0 70 140 
88  220840390011  102 0.6 EUR/ 
%vol/ hl + 3.2 
EUR/ hl 70 140 
89  220840390012  102 0.6 EUR/ 
%vol/ hl + 3.2 
EUR/ hl 70 140 
90  220840510000  102 0.6 EUR/ 
%vol/ hl 70 140 
91  220840910011  102 0 70 140 
92  220840910012  102 0 70 140 
93  220840990000  102 0.6 EUR/ 
%vol/ hl 70 140 
94  220850110000  85 0 70 140 
95  220850190000  85 0 70 140 WT/DS561/R/Add.1  
 
- 87 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
96  220850910000  102 0 70 140 
97  220850990000  102 0 70 140 
98  220860110000  102 0 70 140 
99  220860190000  102 0 70 140 
100  220860910000  102 0 70 140 
101  220860990000  102 0 70 140 
102  220870100000  102 0 70 140 
103  220870900000  102 0 70 140 
104  220890110000  102 0 70 140 
105  220890190000  102 0 70 140 
106  220890330000  102 0 70 140 
107  220890380000  102 0 70 140 
108  220890410000  102 0 70 140 
109  220890450000  102 0 70 140 
110  220890480011  102 0 70 140 
111  220890480019  102 0 70 140 
112  220890540000  102 0 70 140 
113  220890560000  102 0 70 140 
114  220890690000  102 0 70 140 
115  220890710011  102 0 70 140 
116  220890710019  102 0 70 140 
117  220890750000  102 0 70 140 
118  220890770000  102 0 70 140 
119  220890780000  102 0 70 140 
120  220890911000  102 70 70 140 
121  220890919000  102 1 EUR/ %vol/ 
hl + 6.4 EUR/  
hl 70 140 WT/DS561/R/Add.1  
 
- 88 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
122  220890991000  102 0 70 140 
123  220890999000  102 1 EUR/ %vol/ 
hl 70 140 
124 24.01  240110350000  45 25 30 60 
125  240110600000  45 25 30 60 
126  240110700000  45 25 30 60 
127  240110850000  45 25 30 60 
128  240110950000  45 25 30 60 
129  240120350000  45 25 30 60 
130  240120600000  45 25 30 60 
131  240120700000  45 25 30 60 
132  240120850000  45 25 30 60 
133  240120950000  45 25 30 60 
134  240130000011  45 25 30 60 
135  240130000019  45 25 30 60 
136 27.01  270111000000  Unbound  0 5 13.7 
137  270112100000  Unbound  0 5 13.7 
138  270112900000  Unbound  0 5 13.7 
139  270119000000  Unbound  0 5 13.7 
140  270120000011  Unbound  0 5 13.7 
141  270120000012  Unbound  0 5 13.7 
142  270120000019  Unbound  0 5 13.7 
143 2704.00  270400100000  Unbound  0 5 10 
144  270400300000  Unbound  0 5 10 
145  270400901000  Unbound  0 5 10 
146  270400909000  Unbound  0 5 10 
147 2713.11  271311000000  Unbound  0 4 4 WT/DS561/R/Add.1  
 
- 89 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
148 33.04  330410001000  62.6 0 30 60 
149  330410009000  Unbound  0 30 60 
150  330420000000  100 0 30 60 
151  330430000000  Unbound  0 30 60 
152  330491000000  Unbound  0 30 60 
153  330499001000  62.6 0 30 60 
154  330499009013  Unbound  0 30 60 
155  330499009019  Unbound  0 30 60 
156 3904.10  390410000011  35 6.5 25 50 
157  390410000019  35 6.5 25 50 
158 3908.10  390810000011  33.2 6.5 5 10 
159  390810000019  33.2 6.5 5 10 
160 39.26  392610000000  Unbound  6.5 30 60 
161  392620000011  Unbound  6.5 30 60 
162  392620000019  Unbound  6.5 30 60 
163  392630000000  Unbound  6.5 30 60 
164  392640000000  Unbound  6.5 30 60 
165  392690500000  Unbound  6.5 30 60 
166  392690920011  Unbound  6.5 30 60 
167  392690920019  Unbound  6.5 30 60 
168  392690971000  Unbound  6.5 30 60 
169  392690972000  Unbound  6.5 30 60 
170  392690979011  Unbound  6.5 30 60 
171  392690979012  Unbound  0 30 60 
172  392690979013  Unbound  6.5 30 60 
173  392690979014  Unbound  6.5 30 60 WT/DS561/R/Add.1  
 
- 90 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
174  392690979015  Unbound  6.5 30 60 
175  392690979018  Unbound  6.5 30 60 
176 44.01  440110000000  Unbound  0 5 10 
177  440112000000  Unbound  0 5 10 
178  440121000000  Unbound  0 5 10 
179  440122000000  Unbound  0 5 10 
180  440131000000  Unbound  0 5 10 
181  440139000000  Unbound  0 5 10 
182  440140100000  Unbound  0 5 10 
183  440140900000  Unbound  0 5 10 
184 48.02  480210000000  Unbound  0 10 20 
185  480220001111  Unbound  0 10 20 
186  480220001119  Unbound  0 10 20 
187  480220001911  Unbound  0 10 20 
188  480220001919  Unbound  0 10 20 
189  480220002100  33.6 0 10 20 
190  480220002900  33.6 0 10 20 
191  480240100000  Unbound  0 10 20 
192  480240901000  Unbound  0 10 20 
193  480240909000  Unbound  0 10 20 
194  480254001011  33.6 0 10 20 
195  480254001019  33.6 0 10 20 
196  480254002000  33.6 0 10 20 
197  480254003100  33.6 0 10 20 
198  480254003200  33.6 0 10 20 
199  480254009900  33.6 0 10 20 WT/DS561/R/Add.1  
 
- 91 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
200  480255151000  33.6 0 10 20 
201  480255153000  33.6 0 10 20 
202  480255155011  33.6 0 10 20 
203  480255155019  33.6 0 10 20 
204  480255156100  33.6 0 10 20 
205  480255156200  33.6 0 10 20 
206  480255159911  33.6 0 10 20 
207  480255159912  33.6 0 10 20 
208  480255159919  33.6 0 10 20 
209  480255251000  33.6 0 10 20 
210  480255253000  33.6 0 10 20 
211  480255255011  33.6 0 10 20 
212  480255255019  33.6 0 10 20 
213  480255256100  33.6 0 10 20 
214  480255256200  33.6 0 10 20 
215  480255259911  33.6 0 10 20 
216  480255259912  33.6 0 10 20 
217  480255259919  33.6 0 10 20 
218  480255301000  33.6 0 10 20 
219  480255303000  33.6 0 10 20 
220  480255305011  33.6 0 10 20 
221  480255305019  33.6 0 10 20 
222  480255306100  33.6 0 10 20 
223  480255306200  33.6 0 10 20 
224  480255309911  33.6 0 10 20 
225  480255309912  33.6 0 10 20 WT/DS561/R/Add.1  
 
- 92 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
226  480255309919  33.6 0 10 20 
227  480255901000  33.6 0 10 20 
228  480255903000  33.6 0 10 20 
229  480255905011  33.6 0 10 20 
230  480255905019  33.6 0 10 20 
231  480255906100  33.6 0 10 20 
232  480255906200  33.6 0 10 20 
233  480255909911  33.6 0 10 20 
234  480255909912  33.6 0 10 20 
235  480255909919  33.6 0 10 20 
236  480256201000  33.6 0 10 20 
237  480256202000  33.6 0 10 20 
238  480256203100  33.6 0 10 20 
239  480256203900  33.6 0 10 20 
240  480256209900  33.6 0 10 20 
241  480256801000  33.6 0 10 20 
242  480256803000  33.6 0 10 20 
243  480256805011  33.6 0 10 20 
244  480256805019  33.6 0 10 20 
245  480256806100  33.6 0 10 20 
246  480256806200  33.6 0 10 20 
247  480256809911  33.6 0 10 20 
248  480256809912  33.6 0 10 20 
249  480256809919  33.6 0 10 20 
250  480257001000  33.6 0 10 20 
251  480257003000  16.2 0 10 20 WT/DS561/R/Add.1  
 
- 93 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
252  480257005000  33.6 0 10 20 
253  480257006100  33.6 0 10 20 
254  480257006200  33.6 0 10 20 
255  480257009900  33.6 0 10 20 
256  480258101000  33.6 0 10 20 
257  480258103000  16.2 0 10 20 
258  480258105011  33.6 0 10 20 
259  480258105019  33.6 0 10 20 
260  480258106100  33.6 0 10 20 
261  480258106200  33.6 0 10 20 
262  480258109900  33.6 0 10 20 
263  480258901000  33.6 0 10 20 
264  480258903000  16.2 0 10 20 
265  480258905011  33.6 0 10 20 
266  480258905019  33.6 0 10 20 
267  480258906100  33.6 0 10 20 
268  480258906200  33.6 0 10 20 
269  480258909900  33.6 0 10 20 
270  480261151111  33.6 0 10 20 
271  480261151112  33.6 0 10 20 
272  480261151119  33.6 0 10 20 
273  480261152100  33.6 0 10 20 
274  480261152200  33.6 0 10 20 
275  480261152900  33.6 0 10 20 
276  480261801100  33.6 0 10 20 
277  480261801200  33.6 0 10 20 WT/DS561/R/Add.1  
 
- 94 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
278  480261801300  33.6 0 10 20 
279  480261801500  33.6 0 10 20 
280  480261801911  33.6 0 10 20 
281  480261801919  33.6 0 10 20 
282  480261802100  33.6 0 10 20 
283  480261802200  33.6 0 10 20 
284  480261802900  33.6 0 10 20 
285  480262001100  33.6 0 10 20 
286  480262001200  33.6 0 10 20 
287  480262001300  33.6 0 10 20 
288  480262001500  33.6 0 10 20 
289  480262001911  33.6 0 10 20 
290  480262001919  33.6 0 10 20 
291  480262002100  33.6 0 10 20 
292  480262002200  33.6 0 10 20 
293  480262002900  33.6 0 10 20 
294  480269001100  33.6 0 10 20 
295  480269001200  33.6 0 10 20 
296  480269001300  33.6 0 10 20 
297  480269001900  33.6 0 10 20 
298  480269002100  33.6 0 10 20 
299  480269002200  33.6 0 10 20 
300  480269002900  33.6 0 10 20 
301  480269003900  33.6 0 10 20 
302 48.04  480411111000  23.4 0 10 20 
303  480411112000  32.4 0 10 20 WT/DS561/R/Add.1  
 
- 95 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
304  480411151000  23.4 0 10 20 
305  480411152000  32.4 0 10 20 
306  480411191000  23.4 0 10 20 
307  480411192000  32.4 0 10 20 
308  480411901011  24.6 0 10 20 
309  480411901012  24.6 0 10 20 
310  480411901013  24.6 0 10 20 
311  480411902000  33.6 0 10 20 
312  480419121000  33.6 0 10 20 
313  480419122000  33.6 0 10 20 
314  480419191000  23.4 0 10 20 
315  480419192000  32.4 0 10 20 
316  480419301000  33.6 0 10 20 
317  480419302000  33.6 0 10 20 
318  480419901000  24.6 0 10 20 
319  480419902000  33.6 0 10 20 
320  480421100000  24.2 0 10 20 
321  480421900000  24.6 0 10 20 
322  480429100000  24.2 0 10 20 
323  480429900000  24.6 0 10 20 
324  480431510000  23.4 0 10 20 
325  480431581000  32.4 0 10 20 
326  480431582000  32.4 0 10 20 
327  480431801000  32.4 0 10 20 
328  480431802000  32.4 0 10 20 
329  480431809000  32.4 0 10 20 WT/DS561/R/Add.1  
 
- 96 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
330  480439511000  23.4 0 10 20 
331  480439512000  32.4 0 10 20 
332  480439581000  32.4 0 10 20 
333  480439582000  32.4 0 10 20 
334  480439801000  32.4 0 10 20 
335  480439802000  32.4 0 10 20 
336  480439809000  32.4 0 10 20 
337  480441910000  32.4 0 10 20 
338  480441981000  32.4 0 10 20 
339  480441982000  32.4 0 10 20 
340  480441989000  32.4 0 10 20 
341  480442001000  32.4 0 10 20 
342  480442002000  32.4 0 10 20 
343  480442009000  32.4 0 10 20 
344  480449001000  32.4 0 10 20 
345  480449002000  32.4 0 10 20 
346  480449009000  32.4 0 10 20 
347  480451001000  32.4 0 10 20 
348  480451002000  32.4 0 10 20 
349  480451009000  32.4 0 10 20 
350  480452001000  32.4 0 10 20 
351  480452002000  32.4 0 10 20 
352  480452009000  32.4 0 10 20 
353  480459101000  23.4 0 10 20 
354  480459102000  32.4 0 10 20 
355  480459900000  Unbound  0 10 20 WT/DS561/R/Add.1  
 
- 97 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
356 48.11  481110001000  Unbound  0 25 50 
357  481110009000  Unbound  0 25 50 
358  481141200000  29.4 0 25 50 
359  481141901000  29.4 0 25 50 
360  481141909000  29.4 0 25 50 
361  481149001000  29.4 0 25 50 
362  481149009000  29.4 0 25 50 
363  481151001000  Unbound  0 25 50 
364  481151009000  Unbound  0 25 50 
365  481159001000  Unbound  0 25 50 
366  481159009000  Unbound  0 25 50 
367  481160001000  Unbound  0 25 50 
368  481160009000  Unbound  0 25 50 
369  481190001000  21.6 0 25 50 
370  481190002000  21.6 0 25 50 
371  481190009000  21.6 0 25 50 
372 5502.10  550210000000  Unbound  4 30 60 
374 7308.90  730890510000  Unbound  0 30 60 
375  730890590011  Unbound  0 30 60 
376  730890590019  Unbound  0 30 60 
376  730890980012  Unbound  0 30 60 
377  730890980013  Unbound  0 30 60 
378  730890980014  Unbound  0 30 60 
379  730890980015  Unbound  0 30 60 
380  730890980016  Unbound  0 30 60 
381  730890980018  Unbound  0 30 60 WT/DS561/R/Add.1  
 
- 98 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
382 8413.70  841370211000  16.6 0 10 20 
383  841370219000  16.6 1.7 10 20 
384  841370291000  16.6 0 10 20 
385  841370299000  16.6 1.7 10 20 
386  841370301000  16.6 0 10 20 
387  841370309000  16.6 1.7 10 20 
388  841370351000  16.6 0 10 20 
389  841370359000  16.6 1.7 10 20 
390  841370451000  16.6 0 10 20 
391  841370459000  16.6 1.7 10 20 
392  841370511000  16.6 0 10 20 
393  841370519000  16.6 1.7 10 20 
394  841370591000  16.6 0 10 20 
395  841370599000  16.6 1.7 10 20 
396  841370651000  16.6 0 10 20 
397  841370659000  16.6 1.7 10 20 
398  841370751000  16.6 0 10 20 
399  841370759000  16.6 1.7 10 20 
400  841370811000  16.6 0 10 20 
401  841370819000  16.6 1.7 10 20 
402  841370891000  16.6 0 10 20 
403  841370899000  16.6 1.7 10 20 
404 8479.89  847989300000  Unbound  1.7 10 20 
405  847989600000  Unbound  1.7 10 20 
406  847989700000  13.8 1.7 10 20 
407  847989971000  Unbound  1.7 10 20 WT/DS561/R/Add.1  
 
- 99 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
408  847989972000  Unbound  1.7 10 20 
409  847989973000  13.8 1.7 10 20 
410  847989979000  Unbound  1.7 10 20 
411 87.03  870310110000  19 5 60 120 
412  870310180000  20 10 60 120 
413  870321101000  Unbound  10 60 120 
414  870321109011  19 10 60 120 
415  870321109019  19 10 60 120 
416  870321901000  Unbound  10 60 120 
417  870321909011  19 10 60 120 
418  870321909019  19 10 60 120 
419  870322101000  Unbound  10 60 120 
420  870322109011  19 10 60 120 
421  870322109012  19 10 60 120 
422  870322109019  19 10 60 120 
423  870322901000  Unbound  10 60 120 
424  870322909011  19 10 60 120 
425  870322909012  19 10 60 120 
426  870322909019  19 10 60 120 
427  870323110000  19 10 60 120 
428  870323191100  Unbound  10 60 120 
429  870323191200  Unbound  10 60 120 
430  870323191300  Unbound  10 60 120 
431  870323199011  19 10 60 120 
432  870323199019  19 10 60 120 
433  870323901100  Unbound  10 60 120 WT/DS561/R/Add.1  
 
- 100 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
434  870323901200  Unbound  10 60 120 
435  870323901300  Unbound  10 60 120 
436  870323909011  19 10 60 120 
437  870323909019  19 10 60 120 
438  870324101000  Unbound  10 60 120 
439  870324109011  19 10 60 120 
440  870324109019  19 10 60 120 
441  870324901000  Unbound  10 60 120 
442  870324909011  19 10 60 120 
443  870324909019  19 10 60 120 
444  870331101000  Unbound  10 60 120 
445  870331109011  19 10 60 120 
446  870331109019  19 10 60 120 
447  870331901000  Unbound  10 60 120 
448  870331909011  19 10 60 120 
449  870331909019  19 10 60 120 
450  870332110000  19 10 60 120 
451  870332191100  Unbound  10 60 120 
452  870332191200  Unbound  10 60 120 
453  870332191300  Unbound  10 60 120 
454  870332199011  19 10 60 120 
455  870332199019  19 10 60 120 
456  870332901100  Unbound  10 60 120 
457  870332901200  Unbound  10 60 120 
458  870332901300  Unbound  10 60 120 
459  870332909011  19 10 60 120 WT/DS561/R/Add.1  
 
- 101 - 
 
   4- or 6-
Digit HS 
Code  12-Digit  HS Code  Bound  Rate MFN Rate1 Additional  
Duty  (until 
15 August 
2018)  Additional  
Duty  (from 
15 August 
2018 until 
21 May 
2019)  
460  870332909019  19 10 60 120 
461  870333110000  19 10 60 120 
462  870333191011  19 10 60 120 
463  870333191012  19 10 60 120 
464  870333199011  19 10 60 120 
465  870333199019  19 10 60 120 
466  870333901011  Unbound  10 60 120 
467  870333901012  Unbound  10 60 120 
468  870333909011  19 10 60 120 
469  870333909019  19 10 60 120 
470  870340100000  19/20/U2 10 60 120 
471  870340900000  19/20/U3 10 60 120 
472  870350000000  19/20/U4 10 60 120 
473  870360100000  19/20/U5 10 60 120 
474  870360900000  19 10 60 120 
475  870370000000  19 10 60 120 
476  870380100000  20 10 60 120 
477  870380900000  20 10 60 120 
478  870390000000  19 10 60 120 
479 9022.19  902219000000  Unbound  0 5 10 
 
 
__________  
 
 
2 See paras. 7.139 -7.142 of the Panel's Final Report.  
3 See paras. 7.139 -7.142 of the P anel's Final Report.  
4 See paras. 7.143 -7.146 of the Panel's Final Report.  
5 See paras. 7.147 -7.149 of the Panel's Final Report.