WT/DS512/R/Add.1  
 
5 April 2019  
(19-2126) Page: 1/130 
  Original: English  
 
  
RUSSIA - MEASURES CO NCERNING TRAFFIC IN TRANSIT  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to E to the  Report of the Panel to be found in document  
WT/DS512/R . 
 
 
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  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES OF THE PA NEL 
Contents  Page  
Annex  A-1 Working Procedures of the Panel, as amended  4 
Annex  A-2 Additional Working Procedures Concerning BCI  9 
ANNEX B  
PROCEDURAL RULINGS  
Contents  Page  
Annex  B-1 Enhanced Third -Party Rights Ruling  12 
Annex  B-2 Confidentiality Ruling  16 
Annex  B-3 Admissibility Ruling  30 
ANNEX C  
ARGUMENTS OF THE PAR TIES  
UKRAINE  
Contents  Page  
Annex  C-1 First executive summary of the arguments of Ukraine  33 
Annex  C-2 Second executive summary of the arguments of Ukraine  43 
 
RUSSIAN FEDERATION  
Contents  Page  
Annex  C-3 First executive summary of the arguments of the Russian Federation  53 
Annex  C-4 Second executive summary of the arguments of the Russian Federation  60 
ANNEX D  
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  D-1 Executive summary of the arguments of Australia  69 
Annex  D-2 Executive summary of the arguments of Brazil  73 
Annex  D-3 Executive summary of the arguments of Canada  76 
Annex  D-4 Executive summary of the arguments of China  81 
Annex  D-5 Executive summary of the arguments of the European Union  84 
Annex  D-6 Executive summary of the arguments of Japan  89 
Annex  D-7 Executive summary of the arguments of Moldova  94 
Annex  D-8 Executive summary of the arguments of Singapore  99 
Annex  D-9 Executive summary of the arguments of Turkey  103 
Annex  D-10 Executive summary of the arguments of the United States  106 
ANNEX E  
INTERIM REVIEW  
Contents  Page  
Annex  E-1 Interim Review  112 
 
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  ANNEX  A 
WORKING PROCEDURES OF THE PA NEL 
Contents  Page  
Annex  A-1 Working Procedures of the Panel , as amended  4 
Annex  A-2 Additional Working Procedures Concerning BCI  9 
 
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  ANNEX  A-1 
WORKING PROCEDURES O F THE PANEL  
Adopted on 12 July 2017 
Revised on 11 January 2018  
1.1.  In its 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 shall apply.  
General  
 
1.2.  The deliberations of the Panel and the documents submitted to it shall be kept confidential. 
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter 
"party") from disclosing statements of its own positions to the public. Members shall treat as 
confidential information submitted to the Panel by another Member which the submitting Member 
has designated as confidential. Information  designated  as confidential shall be used only for the 
purposes of the proceedings under the DSU, during which such informa tion was submitted.  Where 
a party submits a confidential version of its written submissions to the Panel, it shall also, upon 
request of a Member, provide a non -confidential summary of the information contained in its 
submissions that could be disclosed to  the public.  
1.3.  The Panel shall meet in closed session. The parties and Members having notified their interest 
in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU (hereafter 
"third parties") shall be present at the meetings only when invited by the Panel to appear before it.  
1.4.  Each party and third party has the right to determine the composition of its own delegation 
when meeting with the Panel. Each party and third party shall have the responsibility for all members 
of its ow n delegation and shall ensure that each member of such delegation acts in accordance with 
the DSU and these Working Procedures, particularly with regard to the confidentiality of the 
proceedings.  
Submissions  
 
1.5.  Before the first substantive meeting of the Panel with the parties, each party shall submit a 
written submission in which it presents the facts of the case and its arguments, in accordance with 
the timetable adopted by the Panel. Each party shall also subm it to the Panel, prior to the second 
substantive meeting of the Panel, a written rebuttal, in accordance with the timetable adopted by 
the Panel.  
1.6.  A party shall submit any request for a preliminary ruling at the earliest possible opportunity 
and in any eve nt no later than in its first written submission to the Panel. If Ukraine  requests such 
a ruling, the Russian Federation shall submit its response to the request in its first written 
submission. If the Russian Federation requests such a ruling, Ukraine shall submit its response to 
the request prior to the first substantive meeting of the Panel, at a time to be determined by the 
Panel in light of the request. Exceptions to this procedure shall be granted upon a showing of good 
cause.  
1.7.  Each party shall submit all factual evidence to the Panel no later than during the first 
substantive meeting, except with respect to evidence necessary for purposes of rebuttal, answers 
to questions or comments on answers provided by the other party. Exceptions to this procedure 
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel 
shall accord the other party a period of time for comment, as appropriate, on any new factual 
evidence submitted after the first substantive meeting.  
1.8.  Where the  original language of an exhibit is not a WTO working language, the party or third 
party submitting such an exhibit shall submit , at the same time,  a translation of the exhibit into a 
WTO working language. The Panel may grant reasonable extensions of time for the translation of 
such exhibits upon a showing of good cause. Any objection as to the accuracy of a translation should WT/DS512/R/Add.1  
 
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  be raised promptly in writing, no later than the next filing or meeting (whichever occurs earlier) 
following the filing of the exhib it comprising the translation in question . Any objection shall be 
accompanied by a detailed explanation of the grounds of objection and an alternative translation.  
Thereafter, the Panel will rule as promptly as possible on any objection to the accuracy of a 
translation.   
1.9.  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 Submissions attached as Annex  1, 
to the extent that it is practical to do so.  
1.10.   To facilitate the maintenance of the record of the dispute and to maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the course 
of the dispute. For example, exhibits submitted by Ukraine could be numbered UKR-1, UKR-2, etc. 
If the last exhibit in connection with the first submission was numbered U KR-5, the first exhibit of 
the next submission thus would be numbered U KR-6. Exhibits submitted by the Russian Federation 
could be numbered RUS -1, RUS -2, etc.  
Questions  
 
1.11.   The Panel may at any time pose questions to the parties and third parties, orally or in writing, 
including prior to each substantive meeting  of the Panel .  
Substantive meetings  
 
1.12.   Each party  and third party  shall provide to the Panel the list of members of its delegation in 
advance of the meeting with the Panel and by no later than 5.00  p.m. on the Friday prior to each 
substantive meeting.1 
1.13.   The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel  shall invite Ukraine to make an opening statement to present its case first. 
Subsequently, the Panel shall invite the Russian Federation to present its point of view. 
Before a party takes the floor, it shall provide the Panel , the other party, and the thi rd 
parties  at the meeting with a provisional written version of its statement. In the event that 
interpretation is needed, each such party shall provide additional copies to the 
interpreters, through the Panel Secretary. Each party shall make available to the Panel , 
the other party  and the third parties  the final version of its opening statement, as well as 
the final version of its closing statement, if any, as soon as practicable following  the end 
of the  session at which that statement is delivered. In any  event, each party shall make 
available the final version of its opening statement by no later than 9.00 a.m. on 
Wednesday, 24 January 2018. Each party shall then make available the final version of its 
closing statement by no later than 5.00  p.m. on Friday, 26 January 2018.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through the Panel. Each party shall have an 
opportunity to answer these questions orally. Each pa rty shall send in writing, on 30 
January 2018 , any questions to the other party to which it wishes to receive a response 
in writing. Each party shall be invited to respond in writing to the other party's questions 
by 13 February 2018 . 
c. The Panel may subsequ ently pose questions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, on 30 
January 2018 , any questions to the parties to which it wishes to receive a response in 
writing. Each par ty shall be invited to respond in writing to such questions by 13 February 
2018. 
                                                
1 For the first substantive meeting, this date would be Friday, 19 January 2018. For the second 
substantive meeting, this date would be Friday, 11 May 2018.  WT/DS512/R/Add.1  
 
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  d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Ukraine presenting its statement first.  
1.14.   The se cond substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall ask the Russian Federation if it wishes to avail itself of the right to present 
its case first. If so, the Panel shall invite the Russian Federation  to present its opening 
statement, followed by Ukraine . If the Russian Federation chooses not to avail itself of 
that right, the Panel shall invite Ukraine to present its opening statement first. Before a 
party takes the floor, it shall provide the Panel and oth er participants at the meeting with 
a provisional written version of its statement. In the event that interpretation is needed, 
each such party shall provide additional copies to the interpreters, through the Panel 
Secretary. Each party shall make availabl e to the Panel and the other party the final 
version of its opening statement, as well as its closing statement, if any, preferably at the 
end of the meeting, and in any event no later than 5.00  p.m. of the first working day 
following the meeting.  
b. After th e conclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through the Panel. Each party shall then 
have an opportunity to answer these questions orally. Each party shall send in writing, 
within a timeframe to be determined by the Panel, any questions to the other party to 
which it wishes to receive a response in writing. Each party shall be invited to respond in 
writing to the other party's written questions within a deadline to be determin ed by the 
Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it wishes to receive 
a response in writing. Each party shall be invited to respond in writing to such questions 
within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the Panel shall afford each party an opportunity t o 
present a brief closing statement, with the party that presented its opening statement 
first, presenting its closing statement first.  
Third parties  
 
1.15.   The Panel shall invite each third party to transmit to the Panel a written submission prior to 
the first  substantive meeting of the Panel with the parties, in accordance with the timetable adopted 
by the Panel.  
1.16.   Each third party may be present at the sessions  of the first substantive meeting  with the Panel  
at which the parties deliver their opening oral stat ements, and their closing oral statements, 
respectively .  
1.17.   Each third party shall also be invited to present its views orally during a session of the first 
substantive meeting, set aside for that purpose. Each third party shall provide to the Panel the list 
of members of its delegation in advance of this session and no later than 5.00  p.m. on Friday, 19 
January 2018 .  
1.18.   The third -party session shall be c onducted as follows:  
a. All third parties may be present during the entirety of this session.  
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third 
parties present at the third -party session and intending to present their  views orally at 
that session, shall provide the Panel, the parties and other third  parties with provisional 
written versions of their statements before they take the floor. In the event that 
interpretation is needed, each such third party shall provide ad ditional copies to the 
interpreters, through the Panel Secretary. Third parties shall make available to the Panel, WT/DS512/R/Add.1  
 
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  the parties and other third parties the final versions of their statements, preferably at the 
end of the session, and in any event no later t han 5.00  p.m. on Friday, 26 January 2018 .  
c. After the third parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification on any 
matter raised in the third parties' subm issions or statements. Each party shall send in 
writing, on 30 January 2018 , any questions to a third party to which it wishes to receive 
a response in writing. Each third party shall be invited to respond in writing to these 
questions by 13 February 2018.  
d. The Panel may subsequently pose questions to the third parties. Each third party shall 
then have an opportunity to answer these questions orally. The Panel shall send in writing, 
on 30 January 2018 , any questions to the third parties to which it wishes to  receive a 
response in writing. Each third party shall be invited to respond in writing to such questions 
by 13 February 2018 . 
Descriptive part  
 
1.19.   The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report s hall 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.  
1.20.   Each party shall submit , in accordance with the timetable adopted by the Panel: (i) the first 
integrated executive summary of the facts and arguments as presented to the Panel in its first 
written submissions, first openi ng and closing oral statements and, optionally, responses to 
questions following the first substantive meeting; and (ii) the second integrated executive summary 
of its rebuttal, second opening and closing oral statements and, optionally, responses to quest ions 
and comments thereon following the second substantive meeting, in accordance with the timetable 
adopted by the Panel. Each integrated  executive summar y shall be limited to no more than 15 pages. 
The Panel will not summarize in the descriptive part of its report, or annex to its report, the parties' 
and third parties' responses to questions  or the parties' comments on responses to questions . 
1.21.   Each third party shall submit an executive summary of its arguments as presented in its 
written submission and statement in accordance with the timetable adopted by the Panel. This 
summary may also include a summary of responses to questions, where relevan t. The executive 
summary to be provided by each third party shall not exceed six (6) pages. If a third -party 
submission and/or statement do( -es) not exceed six (6) pages, it can be deemed, upon such third 
party's request, an integrated executive summary of  its arguments.  
Interim review  
 
1.22.   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.  
1.23.   In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other part y's written request for review, in accordance with the timetable 
adopted by the Panel. Such comments shall be limited to commenting on the other party's written 
request for review.  
1.24.   The interim report, as well as the final report prior to its official circ ulation, shall be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
1.25.   The following procedures regarding service of documents shall apply:  WT/DS512/R/Add.1  
 
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  a. Each party and third party shall submit all documents to the Panel by filing them with the 
DS Registry ( Office No. 2047). Each party and third party shall file its documents with the 
DS Registry and serve copies on the other party (and third parties where appropriate) by 
5.00 p.m. (Geneva time) on the due dates established by the Panel . 
b. Each part y and third party shall file two ( 2) paper copies of all documents it submits to 
the Panel. The DS  Registrar shall stamp the documents with the date and time of the filing. 
The paper version shall constitute the official version for the purposes of the rec ord of the 
dispute.   
c. Each party and third party shall also provide to the Panel an electronic version  of all 
documents at the time that it provides the two (2) paper copies. The electronic version 
shall be filed  in a format compatible with that used by the  Secretariat; either on 4 CD -
ROMs, 4 DVDs or 4 USB keys; or as an e -mail attachment containing the document(s) . If 
the electronic version is provided on a CD-ROM, DVD or USB key, the 4 copies shall be 
delivered to the DS Registry (Office No. 2047) . If the electronic version is provided by e -
mail attachment, the e -mail shall be sent to the DS  Registry ( *****@wto.org ), with copies 
to Ms Michelle Healy ( *****@wto.org ), Ms Parika Ganeriwal ( *****@wto.org ) and 
Mr Matthew D'Orsi ( *****@wto.org ).  
d. Each party shall  serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve on all third parties its written submissions in advance 
of the first substantive meeting with the Panel. Each third party shall serve any document 
submitted to the Panel directly on the parties and all other third parties. Each party and 
third party shall confirm, in writing, that copies have been served as required at the time 
it provides each document to the Panel . A party or third party may serve its documents 
on the other party or third party in electronic format only, unless a paper copy is requested 
specifically in writing no later than one day prior to the filing and provided that the Panel 
Secretary is notified. Service of the electronic (or p aper) copy of any document shall 
constitute service of that document for purposes of these Working Procedures.  
e. In parallel with the submission of a document to the DS Registry and the service of a 
document upon a party or a third party, each party and thir d party may upload the same 
document to the Digital Dispute Settlement Registry (DDSR). Such a document must be 
uploaded to the DDSR no later than one day after the due date established by the Panel 
for that document. If a party or third party experiences technical difficulties in uploading 
a document promptly to the DDSR, such difficulties will not affect the official submission 
of the document to the Panel or the service of the document to a party or third party. As 
stated above, the paper version of a do cument shall constitute the official version for the 
purposes of the record of the dispute , and service of an electronic (or a paper) copy of a 
document on a party or third party shall constitute service of that document for purposes 
of these Working Proce dures. For assistance with any technical difficulties concerning the 
DDSR, please contact the DS Registry ( *****@wto.org ). 
f. The Panel shall provide the parties with an electronic version of the descriptive part, the 
interim report and the final report, as w ell as other documents as appropriate. When the 
Panel transmits to the parties or third parties both paper and electronic versions of a 
document, the paper version shall constitute the official version for the purposes of the 
record of the dispute.  
1.26.   The Pan el reserves the right to modify these procedures as necessary, after consultation with 
the parties.  
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ANNEX A -2 
ADDITIONAL WORKING PROC EDURES CONCERNING BUSINESS CONFIDENTIA L INFORMATION  
Adopted on 25 August 2017  
1  These procedures apply to any business confidential information ("BCI") that a party  or third party 
wishes to submit to the Panel.  
2  For the purposes of these procedures, BCI is defined as any infor mation that has been designated 
as such by the party or third party submitting the information, that is not available in the public 
domain, and the release of which would seriously prejudice an essential interest of the Member 
submitting the information or  of the person or entity that supplied the information to that Member.  
3  No person may have access to BCI except a member of the Panel or the WTO Secretariat, an 
employee of a party or third party, and an outside advisor acting on behalf of a party or third party 
for the purposes of this dispute . However, an outside advisor is not permitted access to BCI if that 
advisor is an officer or employee of an enterprise, or association of enterprises, engaged in the 
production or sale of products affected by th e measures at issue in this dispute, or in import, export 
or transit operations regarding such products.  
4  A party or third party having access to BCI shall treat it as confidential, i.e. shall not disclose that 
information other than to those persons autho rized to have access to i t pursuant to these 
procedures.  Each party and third party shall have responsibility in this regard for its employees as 
well as any outside advisors used fo r the purposes of this dispute.  BCI obtained under these 
procedures may be  used only for the purpose of providing information and argumentation in this 
dispute  and for no other purpose.  
5  The party submitting BCI shall mark the cover and/or first page of the document containing BCI, 
and each page of the document, to indicate th e presence of such information.  The specific 
information in question shall be placed between bolded brackets, as follows: [xx,xxx.xx ]. The first 
page or cover of the document shall state  in bold  "Contains business confidential information 
on pages xxxxxx" , and each page of the document shall contain the notice "Contains Business 
Confidential Information"  in bold at the top of the page.  In case of exhibits, the party submitting 
BCI in the form of an Exhibit shall mark it as (BCI) next to the exhibit number (e.g . Exhibit UKR -1 
(BCI), Exhibit RUS -1(BCI)).  Should the party submit specific BCI within a document which is 
considered to be public, the specific information in question shall be placed between bolded  brackets, 
as follows: [xx,xxx.xx ]". Should the party submit an exhibit of which the entire content  constitutes 
BCI, the cover page of the exhibit and the top of each page of the exhibit shall state in bold "All of 
the information included in this exhibit is business confidential information " without it being 
necessary to place all of the specific infor mation in that exhibit between bold brackets.  
6  Any BCI that is submitted in binary -encoded form shall be clearly marked with the statement 
"Business Confidential Information" on a label on the storage medium, and clearly marked with the 
statement "Business Confidential Information" in the binary -encoded files.  
7  If a party submits a document containing BCI to the Panel, the other party or any third party 
referring to that BCI in its documents, including written submissions, written versions of oral 
statements and documents submitted in binary -encoded form, shall mark the document and any 
storage medium, and use bolded  brackets, as set out in paragraphs 5 and 6.  
8  In the case of an oral statement containing  BCI, the party or third party making such a statement 
shall inform the Panel before making it that the statement will contain BCI, and the Panel will ensure 
that only persons authorized to have access to BCI pursuant to these procedures are in the room to 
hear that statement.   WT/DS512/R/Add.1  
 
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  9  If a party considers that informati on submitted by the other party should have been designated 
as BCI and it objects to such submission without BCI designation, it shall forthwith bring this 
objection to the attention of the Panel, the other party, and, where relevant, the third parties. Th e 
Panel shall deal with the objection, as appropriate. The same procedure shall be followed if a party 
considers that information submitted by the other party marked as containing BCI in any of the ways 
set forth in paragraphs 5 and 6 above should not be d esignated as BCI.  Each party shall act in good 
faith and exercise restraint in designating information as BCI. The Panel shall have the right to 
intervene in any manner that it deems appropriate, if it is of the view that restraint in the designation 
of BC I is not being exercised.  
10  The parties, third parties, the Panel, the WTO Secretariat, and any others who have access to 
documents containing BCI under the terms of these Additional Working Procedures shall store all 
documents containing BCI so as to preven t unauthorized access to such information.  
11  The Panel will not disclose BCI, in its report or in any other way, to persons not authorized under 
these pr ocedures to have access to BCI.  The Panel may, however, make statements of conclusi on 
drawn from such inf ormation.  Before the Panel circulates its final report to the Members, the Panel 
will give each party an opportunity to review the report to ensure that it does not disclose any 
information that the party has designated as BCI.  
12  If (a) pursuant to Article 1 6.4 of the DSU, the Panel report is adopted by the DSB, or the DSB 
decides by consensus not to adopt the Panel report, (b) pursuant to Article 12.12 of the DSU, the 
authority for establishment of the Panel lapses, or (c) pursuant to Article 3.6 of the DSU,  a mutually 
satisfactory solution is notified to the DSB before the Panel completes its task, within a period to be 
fixed by the Panel, each party and third party shall return all documents (including electronic material 
and photocopies) c ontaining BCI to the party that designated such information  as BCI , or certify in 
writing to the Panel and the other party (or the parties, in the case of a third party returning such 
documents) that all such documents (including electronic material and photocopies) have b een 
destroyed, consistent with the party's record -keeping obligations under its domestic laws. The 
parties and third parties may, however, retain one copy of each of the documents containing BCI for 
their archives, subject to prior written agreement of the  party having designated such information 
as BCI and their continued adherence  to the terms of these Additional Working Procedures.  The 
Panel and the WTO Secretariat shall likewise return all such documents or certify to the parties that 
all such documents  have been destroyed. The WTO Secretariat shall, however, have the right to 
retain one copy of each of the documents containing BCI for the archives of the WTO or for 
transmission to the Appellate Body in accordance with paragraph 13 below.  
13  If a party form ally notifies the DSB of its decision to appeal pursuant to Article 16.4 of the DSU, 
the WTO Secretariat will inform the Appellate Body of these procedures and will transmit to the 
Appellate Body any BCI governed by these procedures as part of the record, including any 
submissions containing information designated as BCI under these working procedures.  Such 
transmission shall occur separately from the rest of the Panel record, to the extent poss ible. In the 
event of an appeal,  the Panel and the WTO Secretar iat shall return all documents (including 
electronic material and photocopies) containing BCI to the party that designated such information  
as BCI , or certify to the parties that all such documents (including electronic material and 
photocopies) have been destroyed, except as otherwise provided above. Following the completion 
or withdrawal of an appeal, the parties and third parties shall promptly return all such documents or 
certify to the parties that all such documents have been destroyed, taking account  of any applicable 
procedures adopted by the Appellate Body. The parties and third parties may, however, retain one 
copy of each of the documents containing BCI for their archives, subject to prior written agreement 
of the party having designated such info rmation as BCI and their continued adherence  to the terms 
of these Additional Working Procedures.  
 
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ANNEX B  
PRELIMINARY RULINGS  
Contents  Page  
Annex  B-1 Enhanced Third -Party Rights Ru ling 12 
Annex  B-2 Confidentiality Ruling  16 
Annex  B-3 Admissibility Ruling  30 
 
 
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ANNEX B -1 
ENHANCED THIRD -PARTY  RIGHTS RULING  
Issued by the Panel on 9 January 2018  
1.1.  The Panel refers to the joint request of Australia, Canada and the European Union (the 
requesting third parties) of 10  November 2017, in which the requesting third parties request the 
Panel to grant to all of the third parties certain additional third -party rights in these proceedings, 
namely to: (a) receive all submissions by the parties to  the Panel; (b) be present during the entirety 
of the first and second substantive meetings of the Panel; (c) make a statement to the Panel at the 
second substantive meeting; and (d) have the opportunity to respond to questions from the Panel 
to the partie s and other third parties.1 
1.2.  The requesting third parties advance two main grounds in support of their request for these 
enhanced third -party rights.  
1.3.  First, they note the novelty of the Russian Federation's defence based on Article XXI of the 
GATT 1994, and the significance of this dispute as the first in which a WTO dispute settlement panel 
will address the scope of the WTO security exceptions.2 Further, they assert that the Russian 
Federation has presented limited argumentation in support  of its defence, and with Ukraine not 
having anticipated this defence in its first written submission, the parties will have to make their 
case in respect of the security exception in Article XXI(b)(iii) in their second written submissions. 
The requesting third parties argue that, in these circumstances, confining the third parties' 
involvement in the case to the first written submissions and the first substantive meeting would 
mean that the third parties are not able to fully participate in legal exchanges  of "utmost systemic 
importance" which would frustrate the purpose of third -party rights.3  
1.4.  Second, they assert the European Union's significant economic interests in this dispute as a 
major exporter to Kazakhstan and the Kyrgyz Republic and as a maj or user of the transit routes 
implicated in this dispute.4  
1.5.  The requesting third parties submit that the grant of enhanced third -party rights does not place 
any additional burden on the parties (given that the service of documents by parties and thir d parties 
is being effected electronically) and suggest that the Panel has the means available to ensure the 
appropriate balance between the interests of the parties and third parties, including with respect to 
the efficiency and promptness of the proceedi ngs, even in a situation in which there is a 
comparatively large number of third parties.5 
1.6.  Following the Panel's invitation to the parties and the other third parties to comment on the 
joint request, Ukraine, the Russian Federation and certain of the  other third parties (Brazil, China, 
Japan, Singapore and the United States) provided comments on the joint request on 
1 December  2017. Ukraine generally supports the joint request, but does not consider it necessary 
that the third parties participate in t he entirety of the sessions of the first and second substantive 
meetings that are reserved for the parties.6 The Russian Federation opposes the joint request on the 
grounds that the request is not justified in this case, is unsupported in the case law, and  involves 
an undue burden on the parties, the Secretariat and the Panel.7 Brazil and Singapore support the 
grant of "passive" enhanced third -party rights (i.e. to receive all submissions by the parties to the 
                                                
1 Letter from Australia, Canada, and the European Union dated 10 November 2017, para. 8.  
2 Letter fr om Australia, Canada, and the European Union dated 10 November 2017, para. 4.  
3 Letter from Australia, Canada, and the European Union dated 10 November 2017, para. 5.  
4 Letter from Australia, Canada, and the European Union dated 10 November 2017, para. 7.  
5 Letter from Australia, Canada, and the European Union dated 10 November 2017, para. 6.  
6 Letter from Ukraine dated 1 December 2017, paras. 2 and 10.  
7 Letter from the Russian Federation dated 1 December 2017, pp. 2 -3, 3-5, and 5 -6. 
 WT/DS512/R/Add.1  
 
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  Panel and to be present during the first and se cond substantive meetings of the Panel).8 China and 
Japan both express the view that the decision to grant enhanced third -party rights should be made 
on a case -by-case basis.9 China and Japan each request that, if the Panel grants any such rights to 
any of  the third parties, those same rights be granted to them.10 The United States considers that 
the Panel should deny the joint request, based on its view that the Russian Federation's invocation 
of Article XXI(b)(iii) of the GATT 1994 means that there is no basis for the Panel to make findings in 
this proceeding. Accordingly, the Panel should not require further written submissions from the 
parties, or hold substantive meetings with the parties and third parties.11 
1.7.  Articles 10.2 and 10.3 of the DSU and paragraph 6 of Appendix 3 of the DSU define the rights 
of third parties in panel proceedings. Pursuant to these provisions, third parties have the rights to 
(a) receive the submissions of the parties up to the first meeting of the panel, (b) make submissio ns 
to the panel, (c) present their views during a session of the first substantive meeting of the panel 
set aside for that purpose, and to be present during the entirety of such a session.  
1.8.  A panel may exercise the discretion afforded to it under Art icle 12.1 of the DSU12 to grant 
enhanced third -party rights in a dispute, provided the additional rights are consistent with the 
provisions of the DSU and the principles of due process.13 All third parties in a panel proceeding may 
be presumed to have a "s ubstantial interest" in the matter before the panel.14 Additional third -party 
rights have been granted in panel proceedings for specific reasons only, namely, where there were 
special circumstances that justified the grant of enhanced third -party rights. P revious panels have 
granted enhanced third -party rights on the basis of, inter alia , certain third parties enjoying 
economic benefits that were directly implicated by the measure at issue15, the importance of trade 
in the product at issue to certain third parties16, at least one of the parties agreeing that enhanced 
third-party rights should be granted17, claims that the measures at issue derived from an 
international treaty to which certain third parties were parties18, third parties having previously been  
granted enhanced rights in related panel proceedings19, and certain practical considerations arising 
from a third party's involvement as a party in a parallel panel proceeding.20 Decisions on whether to 
grant enhanced third -party rights are made on a case -by-case basis, and are informed by the factors 
considered in previous disputes.21 These determinations are made in light of the need to maintain 
the distinction drawn in the DSU between the rights afforded to parties and those afforded to third 
parties.22  
1.9.  We recall that the panels in EC – Bananas III , EC – Tariff Preferences, and EU – Poultry Meat 
(China)  granted enhanced third -party rights where third parties enjoyed certain economic benefits 
that were directly implicated by the measure at issue.23 In these disputes, the third parties were 
direct beneficiaries of the challenged measures (respectively, tariff rate quotas, tariff preferences 
and tariff rates). By contrast, in the present case, the European Union does not enjoy particular legal 
rights or economic benefits in Russia's transit regime as such. While the European Union may be a 
significant user of the transit routes affected by Russia's transit measures, we note that in cases 
where third parties have asserted an economic interest in the out come of a case, for example, 
                                                
8 Letter from Brazil dated 1 December 2017, p. 2; and Letter from Singapore dated 1 December 2017, 
paras. 2 -3. 
9 Letter from China dated 1 December 2017, p. 1; and Letter from Japan dated 1 December 2017, p. 1.  
10 Letter from China dated 1 December 2017, p. 2; and Letter from Japan dated 1 December 2017, p. 2.  
11 Letter from the United States dated 1 December 2017, para. 2.  
12 Article 12.1 of the DSU provides that "[p]anels shall follow the Working Procedures in Appendix 3 
unless the panel decides otherwise after consulting the  parties to the dispute."   
13 Appellate Body Reports, US – 1916 Act , para. 150; EC – Hormones , para. 154; and US – FSC (Article 
21.5 – EC), para. 243.  
14 Panel Report, US – Large Civil Aircraft (2nd complaint) , para. 7.16. 
15 Panel  Reports , EC – Bananas I II, para. 7.8; EC – Tariff Preferences , Annex A, para. 7; and EU – 
Poultry Meat (China) , para. 7.44.  
16 Panel Report, EC – Export Subsidies on Sugar (Australia) , para. 2.5.  
17 Panel Reports, EC – Bananas III , para. 7.8.  
18 Panel Reports, EC – Bananas III , para. 7.8.  
19 Panel Reports, EC – Bananas III , para. 7.8.  
20 Panel Report, EC – Hormones (Canada ), para. 8.17. 
21 See Panel Report, China – Rare Earths , para. 7.7.  
22 Panel Reports, US – 1916 Act , para. 6.33; and EC – Export Subsidies on Sugar (Australia ), para. 2.5. 
23 Panel Reports, EC – Bananas III , paras. 4.9, 4.10; EC – Tariff Preferences , Annex A, para. 7; EU – 
Poultry Meat (China ), para. 7.44. 
 WT/DS512/R/Add.1  
 
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  because their exports are potentially affected by the same measures, panels have declined to grant 
enhanced third -party rights if one or both parties opposed the grant.24  
1.10.   The other basis on which the requesting third pa rties request enhanced third -party rights 
concerns the "novelty" of Russia's defence based on Article XXI of the GATT 1994, and the "utmost 
systemic importance" of the legal issues that arise in relation to the interpretation of this provision, 
along with the assertion that the third parties will not have been able to fully engage with the parties' 
arguments regarding Article XXI until the parties' second written submissions.25 Ukraine also 
supports the grant of enhanced third -party rights on similar ground s, noting that the third parties 
will not have access to Ukraine's opening oral statement at the first substantive meeting or to 
Ukraine's second written submission.26 The important systemic implications of the Russian 
Federation's invocation of Article XX I(b)(iii) of the GATT 1994 are also referred to by Brazil, China 
and Japan.27  
1.11.   The Russian Federation, on the other hand, argues that panels have consistently rejected 
requests for enhanced third -party rights where the requesting third party only ha s legal and systemic 
interests that do not differentiate it from other third parties or Members.28 The Russian Federation 
refers specifically to the decisions of three panels denying requests for enhanced third -party rights 
that were made on the basis of t he alleged systemic interests of the requesting third parties: US – 
Countervailing Measures (China ), Indonesia – Import Licensing Regimes , and India – Solar Cells .29 
It argues that Ukraine was fully aware of the substance of the measures at issue and the 
circumstances leading to their imposition and notes that five of the third parties have already made 
extensive arguments concerning Article XXI of the GATT 1994 in their third -party submissions.30 
1.12.   We agree with the Russian Federation that prior panel s have not supported requests for 
enhanced third -party rights when the requesting third party has simply alleged a "systemic interest" 
in the interpretation of various provisions of WTO Agreements. This is because all WTO Members are 
presumed to have a sys temic interest in the interpretation of the covered agreements. Requesting 
third parties have therefore typically been required to identify a specific interest, over and above 
the systemic interests common to all WTO Members.  
1.13.   The Panel considers, h owever, that this proceeding presents something of an exceptional 
situation. In its first written submission, the Russian Federation invokes Article XXI(b)(iii) of the 
GATT 1994 as a defence to Ukraine's claims. This proceeding will, therefore, be the firs t occasion on 
which a WTO dispute settlement panel will interpret Article XXI(b)(iii) of the GATT 1994. Moreover, 
the Russian Federation advances an interpretation of Article XXI(b)(iii) which posits that the 
determination of an action that is necessary fo r the protection of a Member's essential security 
interests, and the determination of such Member's essential security interests, is within the sole 
discretion of that Member. It is clear that the Panel's conclusions regarding the interpretive issues 
raised by the Russian Federation could have far -reaching effects on the determination of the ambit 
of the covered agreements and on the WTO as a whole. In our view, these effects are radically 
different from those of the interpretation of one or another of the substantive provisions of the 
covered agreements. In the circumstances of this case, the Panel has concluded that it is in the 
interests of the WTO system as a whole that all of the third parties be granted such enhanced third -
party rights as would enable them to engage fully on interpretive issues of such vital systemic 
importance.  
1.14.   The Panel is also, however, mindful of the sensitivities of the parties to discussion, during the 
course of this proceeding, of factual issues that potentially relate to  their foreign policy and security 
interests. The Panel has therefore decided to grant the third parties enhanced third -party rights less 
                                                
24 See e.g. Panel Reports, US – Coated Paper (Indonesia ), Annex D -1, p. D -3; and Indonesia – Import 
Licensing Regimes , para. 7.1. We therefore agree with the Russian Federation that the European Union has 
failed to demonstrate that "third party benefits economically differentiated from the challenged measure, and 
its economic interest cannot be addre ssed by bringing a separate case." Letter from the Russian Federation 
dated 1 December 2017, p. 3.  
25 Letter from Australia, Canada, and the European Union dated 10 November 2017, paras. 4 and 5.  
26 See Letter from Ukraine dated 1 December 2017, paras. 3 a nd 8. 
27 Letter from Brazil dated 1 December 2017, pp. 1 -2; Letter from China dated 1 December 2017, pp. 1 -
2; and Letter from Japan dated 1 December 2017, pp. 1 -2. 
28 Letter from the Russian Federation dated 1 December 2017, pp. 2 -3. 
29 Letter from the Russian Federation dated 1 December 2017, fn 4, p. 3.  
30 Letter from the Russian Federation dated 1 December 2017, pp. 4 -5. WT/DS512/R/Add.1  
 
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  extensive than requested in the joint request. More specifically, the Panel has decided to grant 
enhanced third -party rights that it considers will enable the third parties to participate in the legal 
exchanges between the parties at the first substantive meeting regarding the interpretation of Article 
XXI(b)(iii) of the GATT 1994.   
1.15.   Accordingly, the Panel grants t he following enhanced third -party rights to all of the third 
parties:  
a. The right to attend the portions of the party session of the first substantive meeting at 
which the parties deliver their opening oral statements, and closing oral statements, 
respect ively; and  
b. The right to receive the provisional written versions of the parties' opening oral statements 
and closing oral statements, respectively, at the portions of the party session of the first 
substantive meeting at which those statements are deliv ered, as well as the final versions 
of such oral statements at the end of the day on which they are delivered.  
1.16.   In order to provide the third parties with an opportunity to comment on the parties' arguments 
presented in the opening oral statements in  their third -party statements at the third -party session 
of the first substantive meeting, the Panel proposes to change the date of the third -party session of 
the first substantive meeting from 24  January  2018 to 25  January  2018.   
1.17.   The Panel advises  that, when issuing questions to the third parties to which it wishes to receive 
responses in writing, following the first substantive meeting, it will endeavour to ensure that the 
third parties are given a full opportunity to address the interpretive issu es raised by the parties 
during the party session of the first substantive meeting.  
1.18.   The Panel advises the third parties that, consistent with  paragraph 11 of the Working 
Procedures, it reserves the right to pose questions to the third parties anyti me during the 
proceedings of the dispute, including after the second substantive meeting, should the Panel consider 
that this can be of assistance to it in discharging its obligations under Article 11 of the DSU.31  
1.19.   The Panel will shortly distribute  a revised Timetable and Working Procedures to the parties 
and third parties to reflect the foregoing.  
 
 
 
 
                                                
31 In the event that the Panel were to pose s uch questions to the third parties, it would ensure that the 
parties are afforded an appropriate opportunity to comment on the third parties' responses.  WT/DS512/R/Add.1  
 
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  ANNEX B -2 
CONFIDENTIALITY RULI NG 
Issued by the Panel on 16 May  2018  
1  INTRODUCTION  
1.1.  This ruling addresses the complaints, made by the Russian Federation (Russia) in its letter 
dated 14 March 2018, of violations by the European Union of its confidentiality obligations under 
Article 18.2 of the Understandin g on Rules and Procedures Governing the Settlement of Disputes 
(DSU) and the Panel's Working Procedures.  
1.2.  The European Union published its third -party written submission and third -party statement at 
the first meeting of the Panel (hereafter, the Euro pean Union's third -party submission and 
statement) on the website of the European Commission's Directorate -General for Trade. Russia 
alleges that, owing to certain contents of the European Union's published third -party submission and 
statement, the Europea n Union thereby disregarded the confidential nature of: aspects of the 
positions of Russia and certain third parties; contents of procedural documents; contents of the 
Panel's questions to the parties and third parties during the first substantive meeting;  information 
regarding the Panel's timetable; and certain details relating to another ongoing dispute, Russia – 
Pigs. 
1.3.  By communication dated 16 March 2018, the Panel invited the European Union and any other 
third parties, as well as Ukraine, to comme nt on Russia's complaint by 21 March 2018. Accordingly, 
on 21 March 2018, the European Union, Australia, Brazil, Canada, the United States and Ukraine 
each provided comments on Russia's complaint. The Panel invited Russia to respond to these 
comments by 4 April 2018. On that date, Russia provided its response.  
2  RUSSIA'S COMPLAIN T AND REQUEST TO THE  PANEL  
2.1.  In its letter dated 14 March 2018, Russia alleges that specific paragraphs in the European 
Union's third -party submission and statement go beyond t he disclosure of the European Union's own 
positions and disclose information that is required to be treated as confidential under the DSU and 
the Working Procedures. These paragraphs of the European Union's published third -party submission 
and statement al legedly involve:  
a. Disclosure of aspects of Russia's position, particularly with respect to the measures at 
issue1, and Russia's defence under Article XXI of the General Agreement on Tariffs and 
Trade 1994 (GATT 1994)2, as well as aspects of other third parties' positions3;  
b. Disclosure of the contents of other procedural documents pertaining to the Panel's 
proceedings4;  
                                                
1 Russia's letter dated 14 March 2018, second paragraph on p. 2 (referring to the European Union's 
third-party submission, paras. 6 and 8).  
2 Russia's letter dated 14 March 2018, second paragraph on p. 2 (referring, inter alia , to the European 
Union's third -party submission, paras. 8, 10, and 11; and the European Union's third -party statement, paras. 3 
and 8). 
3 Russia's letter dated 14 March 2018, second paragraph on p. 2 (referring to the European Union's 
third-party statement, paras. 13 and 36).  
4 Russia's letter dated 14 March 2018, second paragraph on p. 2 (referring to the European Union's 
third-party statement, para. 2, which, in turn, refers to the Panel's ruling on the grant of enhanced third party 
rights).  
 WT/DS512/R/Add.1  
 
- 17 - 
 
  c. Disclosure of the contents of the Panel's questions to the parties and third parties during 
the first substantive meeting5; 
d. Disclosure of information regarding the Panel's timetable, such as the dates of the first 
substantive meeting and of receipt of the third -party submissions6; and  
e. Disclosure of the contents of the first substantive meeting and details relating to the 
ongoing dispute Russia – Pigs.7 
2.2.  In Russia's view, Article 18.2 of the DSU and paragraph 2 of the Working Procedures, as well 
as Article 12.1 read with paragraph 2 of Appendix 3 of the DSU, require that the above -referenced 
information be treated as c onfidential. Russia considers that, by publishing its third -party submission 
and statement on the website of the European Commission's Directorate -General for Trade, the 
European Union has disclosed the above -referenced information, which is required to be  treated as 
confidential, thereby violating the DSU and the Working Procedures.  
2.3.  Russia requests the Panel to take all necessary actions and to request the European Union to 
withdraw all publicly available statements containing information of a confid ential nature relevant to 
this dispute and to the Russia – Pigs dispute, and to refrain from such unauthorized disclosure or 
similar actions in the future.  
3  COMMENTS OF THE T HIRD PARTIES AND UKR AINE  
3.1  European Union  
3.1.  The European Union considers that Russia's request is based on an erroneous interpretation of 
the relevant legal provisions and should be dismissed by the Panel. The European Union advises 
that, consistent with the second sentence of Article 18.2 of the DSU, the European Uni on has a "well -
established and consistent policy" of making available to the public written submissions, as well as 
the written versions of the oral statements, made by the European Union to panels and to the 
Appellate Body. The European Union implements t his policy by publishing those documents on the 
website of the European Commission's Directorate -General for Trade. The European Union omits 
from those documents any information properly designated as confidential by other parties, in 
accordance with the t hird sentence of Article 18.2 of the DSU, or with any specific confidentiality 
procedures adopted by a panel. Moreover, the European Union considers that other WTO Members 
follow similar practices and, as far as the European Union is aware, no Member has c omplained 
about such practices in the context of a previous dispute.8 
3.2.  The European Union acknowledges that its third -party submission and statement, as published 
on the website of the European Commission's Directorate -General for Trade, contain certa in 
references to provisions of the covered agreements invoked by Russia, as well as to arguments 
made by Russia in its first written submission or statement to the Panel at the first meeting. The 
European Union explains that it did not redact those referen ces from the published versions of the 
European Union's third -party submission and statement because Russia had not designated any of 
the information contained in its first written submission or statements at the first meeting of the 
Panel as confidential.  Had Russia done so, the European Union would have refrained from disclosing 
it in the published version of its third -party submission and statement, in accordance with the third 
sentence of Article 18.2 of the DSU.  
3.3.  The European Union argues that it has fully complied with the confidentiality requirements in 
Article 18.2 of the DSU because it has not published the written submissions or statements of Russia 
or of any other party to this dispute, but only its own submissions and statements. The Europea n 
                                                
5 Russia's letter dated 14 March 2018, second paragraph on p. 2 (referring to the European Union's 
third-party statement, para. 38).  
6 Russia's letter dated 14 March 2018, second paragraph on p. 2 (referring to the European Union's 
third-party statement, para. 2).  
7 Russia's letter dated 14 March 2018, second paragraph on p. 2 (referring to the European Union's 
third-party statement, pa ra. 25).  
8 The European Union notes that Russia has been a party to many disputes in which the European Union 
was also a party and has not previously complained about the European Union's publication of its written 
submissions and statements in those dispu tes. WT/DS512/R/Add.1  
 
- 18 - 
 
  Union considers that Russia has erroneously interpreted the scope of the confidentiality requirement 
in Article 18.2 of the DSU, specifically the first sentence of Article 18.2, to prohibit the disclosure of 
any of the contents of other parties' written submissions (including the cited provisions of the 
covered agreements and legal arguments).  
3.4.  The European Union argues that its publication practice relies on the second sentence of Article 
18.2 of the DSU, which provides that "[n]othing in this Under standing" shall preclude a party to a 
dispute from disclosing statements of its own positions to the public. According to the European 
Union, a party's "position" is to a very large extent defined and developed in relation to the positions 
and arguments of  the other parties. If a party could not refer to the positions and arguments of the 
other parties in the course of stating its own positions, it would effectively be prevented from 
disclosing statements of its own positions to the public in a complete and  meaningful manner.9 
3.5.  The European Union argues that Russia's interpretation of the prohibition contained in the first 
sentence of Article 18.2 of the DSU would also render redundant the third sentence of that provision, 
which provides that Members sh all treat as confidential "information submitted by another Member 
to the panel or the Appellate Body which that Member has designated as confidential." If the first 
sentence of Article 18.2 were interpreted to require absolute confidentiality in respect o f all of the 
contents of written submissions, there would be no need to require, pursuant to the third sentence 
of Article 18.2, that a Member designate certain information as confidential.10 Moreover, it is not 
possible to reconcile a requirement of absol ute confidentiality in respect of all of the contents of 
written submissions with the fact that panels are required by the DSU to summarize in their reports 
the positions and arguments of the parties.  
3.6.  The European Union argues that Article 18.2 of th e DSU should be read in a harmonious 
manner, such that the second sentence of that provision allows the parties to disclose their own 
submissions and statements, provided they respect the confidentiality of information properly 
designated as confidential b y other parties in accordance with the third sentence of Article 18.2 or 
any applicable specific confidentiality procedures adopted by a panel.11 Neither Russia, nor any other 
party has designated as confidential any of the contents of the submissions or s tatements to which 
the European Union referred in its published third -party submission and statement. In any event, 
the European Union considers that the references in its third -party submission and statement to 
Russia's first written submission relate exc lusively to Russia's legal arguments. Legal arguments are 
"inherently non -confidential" and could not have been properly designated as confidential under the 
third sentence of Article 18.2 of the DSU or under any applicable confidentiality procedures adopt ed 
by the Panel.  
3.7.  The European Union notes that the first sentence of Article 18.2 of the DSU, which refers only 
to "written submissions", does not cover the content of panel questions and procedural documents, 
including the timetable. Nor are those documents part of the Panel's "deliberations" for purposes of 
paragraph 2 of the Working Procedures, or covered by paragraph 2 of Appendix 3 of the DSU which 
concerns public observation of panel meetings and does not address the different issue of whether 
a party may refer to procedural documents when disclosing its position in accordance with the second 
sentence of Article 18.2 of the DSU.  
3.8.  Finally, as regards the European Union's comments in its third -party statement of details 
relating to the Russia  – Pigs dispute, the European Union considers that Russia has failed to explain 
why those comments would disclose information that Russia has designated as confidential in that 
                                                
9 The European Union considers that similar considerations apply with respect to the disclosure of the 
Panel's questions – a party could not meaningfully disclose publicly its positions with respect to an issue raised 
by a panel question without revea ling the content of that question.  
10 The European Union points to analogous reasoning by the Appellate Body in US – Continued 
Suspension , Annex IV, para. 4.  
11 The European Union refers to the approach of the panel in Argentina – Poultry Anti -Dumping Duti es, 
para. 7.14, as supporting this reading of the obligations contained in Article 18.2 of the DSU. It considers that 
the Appellate Body's practice in US – Continued Suspension  of opening the Appellate Body hearings to public 
observation (and in so doing, rejecting arguments of some third participants that this practice would violate 
Article 17.10 of the DSU) confirms this reading of Article 18.2. In particular, the European Union notes that the 
Appellate Body permitted the participants and third participan ts who wished to do so to make their oral 
statements and responses to questions subject to public observation without requiring that they be modified to 
prevent the disclosure of arguments or positions of the other third participants who did not wish to ma ke their 
oral statements subject to public observation.  WT/DS512/R/Add.1  
 
- 19 - 
 
  dispute. In any case, it is manifestly beyond this Panel's terms of reference t o rule on issues resulting 
from an alleged breach of confidentiality requirements in the context of a different dispute, over 
which this Panel has no jurisdiction.  
3.2  Other third parties and Ukraine  
3.9.  Australia  requests the Panel to decline Russia's  request. Australia considers that Russia's 
interpretation of Articles 18.2 and 12.1 of the DSU, in conjunction with Appendix 3 of the DSU, is 
flawed and unsupported by the text of those provisions. Australia interprets the first sentence of 
Article 18.2 a s requiring that the "submission in its entirety" be treated as confidential. However, it 
does not establish obligations with respect to the publication of arguments contained in submissions, 
extracts from submissions or non -confidential information contai ned in submissions. This is 
supported by the second to fourth sentences of Article 18.2. The second sentence of Article 18.2 
permits Members to publish statements of their own positions, including by publishing their entire 
written submission. Statements o f a Member's positions may support or rebut arguments put by 
another Member, include extracts from another Member's submission, and address information 
provided by that other Member (except where the other Member has designated that information as 
confiden tial). The third sentence of Article 18.2 would be obsolete if the confidentiality requirements 
elsewhere in the DSU were interpreted as requiring absolute confidentiality.  
3.10.   Brazil  considers that a proper reading of Article 18.2 should secure a bala nce between a 
Member's right to disclose statements of its own positions and obligation to respect the 
confidentiality of written submissions of other parties or third parties to a dispute. Brazil notes that 
when Members publish their submissions containin g a description of another party's arguments and 
opinions, there may be a risk of inaccuracy, misrepresentation or biased selections of statements or 
positions, all of which may give a different meaning or tone to the actual arguments of that other 
party. Brazil argues that Article 18.2 treads carefully in this regard, by stipulating that a party may 
disclose statements of its own "positions" (rather than "submissions"). Brazil considers that this 
indicates that a party that wishes to publicize its position s may therefore be required to do some 
drafting work in order to respect the confidentiality of the submissions of other parties to a dispute. 
However, Brazil also acknowledges that it may sometimes be difficult for a party to convey its own 
positions with out referencing the positions of another party. Brazil suggests that the Panel take into 
account the fact that a party can request a non -confidential summary of the other party's arguments 
which could then be disclosed to the public. Such a summary could t hen be incorporated into the 
statement of positions of the party wishing to disclose its positions.  
3.11.   Canada  considers that the Panel should reject Russia's request. Canada strongly supports 
the ability of a WTO Member to disclose its own positions to  the public as provided for in Article 18.2 
of the DSU. Canada considers that one way for a Member to disclose statements of its positions is 
to disclose its written submissions. Moreover, disclosure by a party of information that relates to the 
positions of another party, that has not been designated as confidential by that other party and that 
is purely ancillary to the disclosure of the first party's own positions, would not be contrary to Article 
18.2 of the DSU.12 Canada further considers that the prot ection of information that a Member has 
designated as confidential is important, but that it is incumbent on Members to carry out such 
designation in good faith, and to apply the designation only to information that is "truly 
confidential".13 Finally, Cana da submits that, to the extent that Russia's request pertaining to the 
disclosures concerning the Russia – Pigs dispute suggests that the Panel has the authority to make 
findings or recommendations to the European Union beyond the bounds of its submissions  in this 
dispute, such request is outside the scope of the Panel's role.  
3.12.   The United States  considers that Russia's request is in error and legally flawed, as well as 
outside the Panel's terms of reference. As to the legal flaws, the United States ob serves that Russia's 
request proceeds on the assumption that a Member's right under Article 18.2 to disclose statements 
                                                
12 Canada considers that explaining one's position will almost certainly entail including information about 
another party's position, or at least, providing information from which it is possible to in fer that party's 
position. To require a party to avoid including such information would frustrate the party's right to disclose its 
own position.  
13 Canada also notes that the requirement for confidentiality is not static. Information that was once 
confide ntial may no longer be so where, for example, it is subsequently disclosed by the originating party, or 
by standard WTO processes, such as publication on the WTO website.  
 WT/DS512/R/Add.1  
 
- 20 - 
 
  of its own positions is reduced and constrained so as to preclude that Member from disclosing any 
of its own statements that might, in t urn, disclose material that Russia argues should be treated as 
confidential. Yet the only references in Article 18.2 to maintaining something as confidential are with 
respect to "written submissions to the panel" and "information submitted by another Membe r to the 
panel … which that Member has designated as confidential." The United States argues that, even 
based on Russia's assumption, a number of the disclosures to which Russia has objected are not 
within the scope of Article 18.2.14 The United States als o considers that Russia's request is premised 
on an allegation that the European Union has violated the requirements set out in the DSU. Yet the 
Panel's terms of reference do not include a claim that the European Union has breached the DSU. 
Any claim of br each of the DSU would need to be addressed in a separate dispute, in which the full 
due process afforded by the DSU would be available to the European Union to respond to the claim.  
3.13.   Ukraine  considers that Russia has failed to show that all of the ca tegories of information 
disclosed by the publication of the European Union's third -party submission and statement are, in 
fact, confidential. In this regard, Ukraine argues that Russia has failed to identify which "contents of 
the first substantive meeting " it refers to and where that information is disclosed in the European 
Union's published third -party submission and statement. In addition, the information relating to the 
ongoing proceedings in Russia – Pigs that is included in the European Union's third -party statement 
is publicly available. Ukraine therefore considers that the Panel should dismiss Russia's request with 
regard to these two categories of information. Ukraine notes that the European Union has not made 
public Russia's written submissions or information designated by Russia as confidential or as BCI. 
Ukraine considers that, unless the complainant and respondent have marked information in their 
written submissions as confidential in accordance with the third sentence of Article 18.2, a third 
party is not precluded by Article 18.2 from disclosing its own positions on issues of legal 
interpretation. Should Russia have wished to prevent a third party from disclosing that Article XXI 
of the GATT 1994 is at issue in these proceedings, it should have marked that information in its 
submission as confidential.  
4  RUSSIA'S RESPONSE  TO THE COMMENTS OF THE EUROPEAN UNION, THE OTHER THIRD 
PARTIES, AND UKRAINE  
4.1.  Russia argues that the first sentence of Article 18.2 sets forth an obligation to maintain the 
confidentiality of information contained in  written submissions, which covers arguments, positions, 
views or opinions of a party to a dispute that it expre sses in such written submissions.15  
4.2.  Russia points out that each sentence of Article 18.2 provides for a different type of "object[]": 
(first sentence) written submissions, (second sentence) statements of a party's own position, (third 
sentence) info rmation designated as confidential, and (fourth sentence) information contained in a 
written submission. Russia disagrees with the positions of Canada and some other third parties16 
that the confidentiality requirement does not apply to the "entire submiss ion" made by a party and 
applies only to the specific information designated by a party as confidential. Russia considers this 
view to be contrary to the "text of Article 18.2", which "expressly" states that a party's submissions 
to the panel are confident ial in their entirety as well as the information contained therein .  
4.3.  Russia acknowledges that the confidentiality obligation in the first sentence of Article 18.2 is 
balanced with the right of a party to disclose statements of its own position. Never theless, nothing 
in the second and fourth sentences of Article 18.2 allows a party to disclose the positions of another 
                                                
14 The United States refers specifically to the disclosures concerning the measures a t issue, the Panel's 
questions, and the procedural documents, as none of these are a "written submission" or "information 
submitted by another Member". In addition, the United States considers that it is not Russia's place to object 
to disclosures of the p ositions of other third parties.  
15 Russia supports this position by pointing to excerpts from the Appellate Body reports in Canada – 
Aircraft ("[T]he provisions of Articles 17.10 and 18.2 apply to all Members of the WTO, and oblige them to 
maintain the co nfidentiality of any submissions or information submitted, or received, in an Appellate Body 
proceeding.") and Brazil – Aircraft  ("[A]ll Members are obliged, by the provisions of the DSU, to treat these 
proceedings of the Appellate Body, including written submissions and other documents filed by the participants 
and the third participants, as confidential."). Appellate Body Reports, Canada – Aircraft , para. 145; and Brazil – 
Aircraft , para. 119. (emphasis omitted)  
16 Here, Russia refers to a statement that Canada made in paragraph 6 of its response to Russia's 
request. The statement provides that "disclosure by a party of information that relates to the position of 
another party, that has not been designated as confidential, and that is purely ancillary to t he disclosure of a 
party's own position would not be contrary to Article 18.2".  WT/DS512/R/Add.1  
 
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  party or effectively to make its own version of a non -confidential summary of any other party's 
submissions to the panel.  
4.4.  Russia admits that logically, a party's "positions" in a dispute are, to a very large extent, defined 
and developed in relation to the positions and arguments of other parties. However, in Russia's view, 
this is not an excuse for a party to avoid its obligations under Article 18.2 not to disclose confidential 
information. Russia considers that, should a party wish to disclose information other than statements 
of its own positions, it has the right to obtain a non -confidential summary of that information. 
Because t he European Union did not request Russia to provide a non -confidential summary of the 
information contained in Russia's written submissions, the European Union could not disclose to the 
public the information contained in Russia's submissions. Russia ackno wledges that information 
contained in written submissions may be "transformed" into a non -confidential summary, but 
emphasizes that such transformation may be carried out only by the party that submitted the 
information to the panel. This is because, as no ted by Brazil, Members may misrepresent the 
arguments and opinions of other parties. Such Members may also improperly assess what 
information another party may regard as confidential.  
4.5.  Russia disagrees with the third parties that have stated that the confidentiality requirements 
of Article 18.2 of the DSU are limited to information that a Member specifically designates as 
confidential under the third sentence of Article 18.2. In Russia's view, the third sentence addresses 
the limited situation where in formation is submitted to the panel by a Member (as opposed to a 
party to the dispute) which is not a written submission, a statement of its own positions, or a non -
confidential summary of information contained in a written submission, within the meaning o f the 
first, second and fourth sentences of Article 18.2, respectively. According to Russia, this reading of 
the third sentence of Article 18.2 of the DSU is supported by the fourth sentence, which states that 
a "Member" may request a non -confidential summ ary. Given that a requesting "Member" is not 
always a party to the dispute, the fourth sentence of Article 18.2 suggests that a non -party Member 
is only entitled to the non -confidential summary, and not to all of the information contained in the 
written su bmissions of the party receiving the request. The parties to the dispute, however, are 
entitled to obtain the full version of the written submissions by virtue of the first sentence of Article 
18.2.  
4.6.  Russia argues that the European Union's proposed i nterpretation of the scope of the 
confidentiality obligations under Article 18.2 of the DSU would deprive the first -level of general 
protection of confidentiality of any meaning and lead to the result that, in order to protect the 
confidentiality of inform ation submitted in a dispute settlement proceeding, Members would have to 
designate the entire text of their submissions as confidential and request the adoption of additional 
working procedures for the protection of confidential information.  
4.7.  Russia  considers that the European Union's proposed interpretation would also make it possible 
for a party to publish a statement of its own positions under the second sentence of Article 18.2 of 
the DSU by introducing the words "[Member X] agrees/disagrees with  the following:", and copying 
the text of another party's written submission verbatim. Russia says that if the confidentiality 
requirements in Article 18.2 were meant to operate in this manner, Article 18.2 could have been 
limited to the last two sentences , replacing the words "information contained in its written 
submissions" with "such confidential information" in the last sentence.  
4.8.  Russia does not believe that the existing publication practices of the European Union and 
certain other Members justif y compliance with Article 18.2 of the DSU in this particular instance. 
Russia considers that the rights set forth in the second sentence of Article 18.2 should be read 
together with the confidentiality requirements contained in Article 18.2. For these reas ons, Russia 
states that it has successfully challenged disclosure of confidential information in a number of 
disputes to which it is a party, involving different Members as the other party.  
4.9.  Russia clarifies that it does not request the European Unio n to delete from the public domain 
all information pertaining to this dispute. Rather, Russia requests the Panel to take all necessary 
actions and to request the European Union to withdraw all publicly available statements that contain 
information of a con fidential nature relevant to the present dispute and to the dispute Russia – Pigs, 
and to refrain from any such unauthorized disclosure or similar actions in the future. Therefore, 
Russia may agree with Ukraine's suggestions to redact its third -party submi ssion and statement to 
remove the confidential information, rather than remove the European Union's third -party 
submission and statement, in their entirety, from the website.  WT/DS512/R/Add.1  
 
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  4.10.   In respect of other procedural documents and information that were disclo sed by the 
European Union but were not directly linked to Russia's submissions in these proceedings, Russia 
argues that prior jurisprudence clearly states that participants should treat dispute settlement 
proceedings as a whole as confidential.  
5  ANALYSIS  
5.1  Whether the Panel has jurisdiction to rule on Russia's complaint  
5.1.  We begin by addressing whether Russia's request for a ruling that the European Union has 
violated Article 18.2 of the DSU is outside this Panel's terms of reference.  
5.2.  The Un ited States argues that the Panel's terms of reference do not include a claim of violation 
of Article 18.2 of the DSU, and any such claim would therefore have to be the subject of a separate 
dispute, initiated by consultations and panel requests. The Europ ean Union, Canada and United 
States also argue that Russia's complaints regarding the alleged disclosure of confidential 
information pertaining to the Russia – Pigs dispute is outside this Panel's terms of reference.  
5.3.  It is true that the Panel's term s of reference do not include a claim that the European Union 
has violated Article 18.2 of the DSU.17 However, Russia does not ask the Panel to rule on whether a 
measure identified in Ukraine's panel request is inconsistent with Article 18.2 of the DSU. Ra ther, 
Russia complains that in the course of these proceedings , a third party has failed to comply with 
certain obligations contained in the DSU and in the Panel's Working Procedures concerning the 
confidential treatment of material presented in the procee dings. The issue that Russia asks the Panel 
to address is therefore, by its nature, only capable of arising once the proceedings in this dispute 
have commenced.  
5.4.  International adjudicative tribunals, including WTO dispute settlement panels, possess in herent 
jurisdiction which derives automatically from the exercise of their adjudicative function.18 One aspect 
of this inherent jurisdiction is the jurisdiction to determine all matters arising in relation to the 
exercise of their substantive jurisdiction and inherent in the judicial function.19 This includes matters 
concerning the conduct of the procee dings before the Panel. In providing for the confidential 
treatment of written submissions and particular information submitted to panels and the Appellate 
Body, Article 18.2 of the DSU regulates certain aspects of the panel and appellate processes.20 A 
party's request that we address a complaint against a third party arising out of an alleged failure by 
that third party to observe confidentiality obligations applicable to these proceedings falls squarely 
within our inherent jurisdiction.  
                                                
17 This is not surprising, because the European Union is a third party in this dispute. Moreover, the 
complaint against the European Union is made by the respondent, not the co mplainant.  
18 See International Court of Justice , Nuclear Tests Case (Australia v. France) (1974) ICJ Reports, 253, 
pp. 259 -260; and Case Concerning the Northern Cameroons (Cameroon v. United Kingdom) (1963) ICJ 
Reports, 15, pp. 29 -31. The Appellate Body has stated that WTO panels have certain powers that  are inherent 
in their adjudicative function, see Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 45.  
19 An important aspect of an adjudicative tribunal's inherent jurisdiction is the jurisdiction to determine 
its own jurisdiction (the principl e of Kompetenz -Kompetenz  in German, or compétence de la compétence  in 
French). The Appellate Body has held that panels have the power to determine the extent of their jurisdiction, 
see Appellate Body Reports, US – 1916 Act , fn 30 to para. 54; and Mexico – Corn Syrup (Article 21.5 – US), 
para. 36.  
20 Article 1.1 of the DSU provides that the DSU applies to all WTO dispute settlement proceedings, 
subject to certain special or additional rules and procedures on dispute settlement identified in Appendix 2 of 
the DSU. (See Article 1.2 of the DSU.) The DSU itself is also one of the covered agreements listed in Appendix 
1 to the DSU. Other examples of provisions of the DSU that address the way in which panel proceedings are to 
be conducted include Article 12 (settin g forth various practical arrangements concerning the adoption of 
working procedures and the establishment of the timetable, the filing of submissions, the contents of panel 
reports and notification to the DSB of the timing of the report), Article 14 (prov iding that panel deliberations 
shall be confidential, that reports of panels are to be drafted without the presence of the parties and that 
opinions expressed in panel reports by individual panelists shall be anonymous), and Article 15 (setting forth 
the process to be followed at the interim review stage). The Panel's Working Procedures similarly regulate 
procedural aspects of the present proceedings.  
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  5.5.  We therefore  find that we have jurisdiction to address the complaints before us. In Sections 
5.2 through 5.6 below, we address each of Russia's objections. Our rulings on these objections are 
set forth in Section 6.  
5.2  Objection to disclosures of aspects of Russia's  and certain third parties' positions  
5.6.  Russia objects to the disclosures of aspects of Russia's positions, particularly with respect to 
the measures at issue and Russia's defence under Article XXI of the GATT 1994, as well as aspects 
of other third pa rties' positions.21 Russia's objection raises the issue of whether the confidentiality 
protections that attach to the written submissions submitted to a panel or the Appellate Body by 
virtue of the first sentence of Article 18.2 of the DSU, preclude a part y from referring to any defences, 
legal arguments or positions expressed in or derived from a written submission, in any statement of 
its own positions that it discloses to the public pursuant to the second sentence of Article 18.2 of the 
DSU.  
5.7.  Article 18 of the DSU is entitled "Communications with the Panel or Appellate Body". 
Article  18.1 prohibits ex parte  communications with the panel or Appellate Body. Article 18.2 
provides:  
Written submissions to the panel or the Appellate Body shall be treated as confidential, 
but shall be made available to the parties to the dispute. Nothing in this Understanding 
shall preclude a party to a dispute from disclosing statements of its own positions to the 
public. Members shall treat as confidential information sub mitted by another Member 
to the panel or the Appellate Body which that Member has designated as confidential. 
A party to a dispute shall also, upon request of a Member, provide a non -confidential 
summary of the information contained in its written submissi ons that could be disclosed 
to the public.22 
5.8.  Russia argues that, while the European Union has a right under the second sentence of Article 
18.2 of the DSU to disclose statements of its own positions to the public, it cannot do so in a manner 
that wou ld disclose Russia's written submissions, which for Russia, include information concerning 
Russia's invocation of Article XXI of the GATT 1994 and Russia's legal arguments, positions, views 
and opinions, without violating the first sentence of Article 18.2 . The European Union and certain of 
the other third parties argue that a party exercising its right under the second sentence of Article 
18.2 of the DSU to disclose statements of its own positions to the public is not precluded from 
referring to the positi ons of other parties.  
5.9.  We begin our analysis by recalling the Appellate Body's statement that, under the DSU, 
confidentiality is relative and time -bound .23 Panel proceedings are based on a complainant's panel 
request, which sets forth detailed information about the measures at issue, the claims of violation, 
and the connection between the measures and claims, thus establishing the legal basis for the 
complai nt sufficient to present the problem clearly. Panel requests are publicly disclosed, as a result 
of which their contents are not confidential or capable of being designated as confidential. Panel 
reports, which are disclosed to the public at the conclusion  of the panel process, contain summaries 
of the arguments of parties and third parties, evaluations of those arguments, analysis of the facts 
                                                
21 Russia refers specifically to the positions of Brazil and Japan as expressed in their third -party 
submis sions. Brazil provided comments on Russia's complaint but did not refer specifically to the alleged 
disclosure of its positions, and Japan did not make any comments on Russia's complaint.  
22 Article 18.2 of the DSU is reflected in paragraph 2 of the Panel' s Working Procedures (although with 
slight differences in terminology) as follows:  
 
The deliberations of the Panel and the documents submitted to it shall be kept confidential. Nothing in 
the DSU or in these Working Procedures shall preclude a party to the  dispute (hereafter "party") from 
disclosing statements of its own positions to the public. Members shall treat as confidential information 
submitted to the Panel by another Member which the submitting Member has designated as confidential. 
Information  designated  as confidential shall be used only for the purposes of the proceedings under the DSU, 
during which such information was submitted. Where a party submits a confidential version of its written 
submissions to the Panel, it shall also, upon request of a Member, provide a non -confidential summary of the 
information contained in its submissions that could be disclosed to the public.  
 
23 Appellate Body Report, US – Continued Suspension , Annex IV, para. 5.  
 WT/DS512/R/Add.1  
 
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  and other evidence, as well as the complainant's request for findings and recommendations. Panel 
reports also disc lose details of the panel process, such as the dates of various stages of the 
proceedings24, any requests for rulings on issues prior to the issuance of the interim report, and the 
interim review process. Public disclosure of panel reports, and Appellate B ody reports, is an inherent 
and necessary feature of our rules -based system of adjudication.25  
5.10.   Article 18.2 of the DSU addresses the confidential treatment of documents submitted to 
panels or the Appellate Body and of certain information contained in those documents, in light of the 
right of parties to disclose statements of their own positions to the public. Article 18.2 comprises 
four sentences. The first sentence refers to "written submissions" to the panel or the Appellate Body. 
The second sente nce concerns "positions" of parties. The third sentence addresses "information" 
submitted to a panel or the Appellate Body which a Member has designated as confidential, while 
the fourth sentence concerns confidential information contained in written submi ssions. In order to 
give meaning and effect to the terms in each sentence, it is necessary to read each sentence of 
Article 18.2 in the context of the other sentences of that provision, as well as in the context of the 
other provisions of the DSU.26  
5.11.   The third sentence of Article 18.2 acknowledges that Members may specifically designate 
certain information that they submit to panels or the Appellate Body as confidential, while the fourth 
sentence of Article 18.2 entitles other Members to obtain a non -confidential summary of that 
information that could be disclosed to the public.27 The third and fourth sentences clarify the scope 
of the right contained in the second sentence of Article 18.2, which provides that nothing in the DSU  
shall preclude a party  from disclosing statements of its own positions to the public.28 Thus, the 
second, third and fourth sentences, read together, provide that a party is permitted to disclose 
statements of its own positions to the public, subject to treating as confidential information 
submitted by a Member which that Member has designated as confidential, in which case the 
disclosing party is entitled to request a non -confidential summary of such information that could be 
disclosed to the public.29  
5.12.   The scope of the r ight in the second sentence of Article 18.2 of the DSU informs the nature 
of the confidentiality protection attaching to written submissions set forth in the first sentence of 
                                                
24 These dates refer to the following phases in a particular dispute: (a) the organizational meeting, (b) 
the adoption of the Working Procedures, (c) the adoption of Additional Working Procedures for the protection of 
certain information, (d) the adoption of the Timetable, (e) the receipt of any requests for preliminary rulings, 
(f) the issuance of any preliminary rulings to the parties, (g) the receipt of the parties' first written 
submissions, (h) the receipt of the third -party submissions, (i) the first substantive meeting, (j) the third -party 
session, (k) the parties' written responses to questions posed by the panel after the first substantive meeting, 
(l) the receipt of comments by the parties on the responses provided by the other parties, (m) the issuance of 
the panel's descriptive sections of its d raft reports to the parties, (n) receipt of comments on the descriptive 
sections of the panel reports, (o) the panel's issuance of the interim report to the parties, (p) the requests for 
revisions of specific aspects of the interim report, (q) the comments  of each party on the other party's request, 
and (r) the issuance of the panel's final report to the parties.  
25 See Appellate Body Report, US – Continued Suspension , Annex IV, para. 5.  
26 See e.g. Appellate Body Reports, EC – Asbestos , para. 95; Canada – Dairy , paras. 133 -134; US – 
Section 211 Appropriations Act , para. 338;  US – Gasoline , p. 23, DSR 1996:I, 3, at p. 21 ; and Japan – 
Alcoholic Beverages II , pp. 12 -13, DSR 1996:I, 97 at pp. 105 -106. 
27 Russia argues that the third sentence covers the very di fferent (and limited) situation where a 
Member that is not a party or third party to the proceedings nevertheless submits information to a panel or the 
Appellate Body. While it may be possible to interpret the third sentence this way when read in isolation  from 
the other three sentences of Article 18.2, it is not a credible interpretation when read in the context of Article 
18.2 as a whole, which imposes obligations on parties and third parties to a dispute to treat certain documents 
and information submitt ed in those proceedings as confidential.  
28 The second sentence of Article 18.2 states that " [n]othing in this Understanding  shall preclude a party 
to a dispute from disclosing statements of its own positions to the public." (emphasis added)  
29 Our reading  of Article 18.2 of the DSU is consistent with that of the panel in Argentina – Poultry Anti -
Dumping Duties , which interpreted the first two sentences of Article 18.2, read together and in the context of 
one another, to mean that, while one party could not  disclose the "written submissions" of another party, each 
party was entitled to disclose statements of its own positions, subject to respecting the confidentiality of 
information designated as confidential under the third sentence of Article 18.2. The pan el considered that the 
only limitation on a party's ability to disclose statements of its own positions to the public under the second 
sentence of Article 18.2 was its obligation to treat as confidential any information that the other party had 
specificall y designated as confidential pursuant to the third sentence of Article  18.2, see Panel Report, 
Argentina – Poultry Anti -Dumping Duties , para. 7.14.  
 WT/DS512/R/Add.1  
 
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  Article 18.2. The first sentence of Article 18.2, in stating that written submis sions to the panel or 
the Appellate Body shall be treated as confidential, requires that parties and other persons 
authorized to have access to the written submissions to a panel or the Appellate Body, ensure that 
access to those submissions is restricted to authorized persons who are similarly bound to treat the 
submissions as confidential.30 
5.13.   We consider that an expansive reading of the first sentence of Article 18.2, in which the 
confidentiality protections attaching to the written submissions enco mpass also all of the information 
that is contained in or derived from those documents (i.e. defences, legal arguments, positions, 
opinions, facts and any other evidence), would render redundant the third sentence of Article 18.2. 
It is also difficult to e nvisage how, as a matter of logic, it would be possible to provide a "non -
confidential summary" of such information contained in the written submissions (understood in the 
expansive sense above), as required by the fourth sentence. We note that the Appella te Body in US 
– Continued Suspension  reached a similar conclusion regarding the relationship between Article 
17.10 of the DSU, which provides that the proceedings of the Appellate Body shall be confidential, 
and Article 18.2. The Appellate Body explained t hat Article 17.10 must be read in light of Article 
18.2, and that the third sentence of Article 18.2 would be redundant if Article 17.10 were interpreted 
to require absolute confidentiality in respect of all elements of appellate proceedings.31 In our view , 
the same considerations apply with respect to the interpretation of the first sentence of Article 18.2 
in relation to the third sentence of that provision.  
5.14.   In addition, we note that the term "information" as used in the covered agreements refers t o 
facts or other evidence, as distinct from legal arguments, positions, or opinions of a party to a 
dispute.32 Moreover, the Appellate Body has previously observed that questions of legal 
interpretation are not inherently confidential.33 We similarly do no t consider that the legal 
arguments, positions and opinions of parties in WTO dispute settlement proceedings are inherently 
confidential, or capable of designation as confidential information under the third sentence of Article 
18.2 of the DSU.  
5.15.   For the foregoing reasons , we do not consider that Article 18.2 of the DSU precludes a party, 
in exercising its right to disclose a statement of its own positions to the public in accordance with 
the second sentence of that provision, from making reference to  the corresponding positions of the 
other parties to the dispute.34 While a party disclosing a statement of its own positions to the public 
                                                
30 See Appellate Body Report, Thailand – H-Beams , para. 74 (providing an example of an instance in 
which it appeared that access to a submission in an Appellate Body proceeding was provided to an 
unauthorized person or entity).  
31 Appellate Body Report, US – Continued Suspension , Annex IV, para. 4 . 
32 E.g. Article 13 of the DSU, Article 6.5.1 of the Ant i-Dumping Agreement, Article 12.4.1 of the SCM 
Agreement, and additional working procedures for the protection of BCI. For example, in EU – Footwear 
(China) , China attempted to define the term "information" in Article 6.5 of the Anti -Dumping Agreement as 
"communication of the knowledge of some fact or occurrence; knowledge or facts communication about a 
particular subject, event, etc.; news; intelligence". The panel considered that the definition of "information" 
encompassed the names of companies as compla inants or supporters of the complainant in an original anti -
dumping investigation or expiry review request.  (Panel Report, EU – Footwear (China) , paras. 7.669 -7.671.)  
See also Appellate Body Report, US – Continued Zeroing , para. 347 (quoting Appellate Body  Report, Canada – 
Aircraft , para. 192.) For examples of facts sought by a panel under Article 13  of the DSU, see Appellate Body 
Reports, Canada – Aircraft , paras. 185 and 199 (referring to a public company's financing of a particular 
transaction); EC – Bed Linen (Article 21.5 – India) , paras. 159, 165, and 166 (referring to stocks and capacity 
utilization used by an investigating authority to make its injury determination); US – Large Civil Aircraft (2nd 
complaint) , para. 1145 (instruments and contracts fun ded by a government programme); and US – Continued 
Zeroing , paras. 342 and 347 (detailed, transaction -specific margin calculations). For examples of information 
that was treated as confidential by an investigating authority  in a trade remedies investigatio n and was 
examined to determine whether a non -confidential summary should have been prepared, see Appellate Body 
Report, EC – Fasteners (China) (Article 21.5 – China) , para. 5.195 (referring to Panel Report,  EC – Fasteners 
(Article 21.5 – China) , fn 200 to  para. 7.145). See also  Panel Reports, China – Autos (US) , paras. 7.8, 7.9, and 
7.11; China – Broiler Products , para. 7.306; EU – Footwear (China) , paras. 7.706, 7.707, 7.721, 7.736, and 
7.776; China – GOES , paras. 7.150 and 7.158; China – X-Ray Equipment , paras. 7.330, 7.337, , 7.344, 7.348 
and 7.349; and China – HP-SSST (Japan) /China – HP-SSST (EU) , paras. 7.308 -7.310, 7.316, and 7.319 
(supported by Appellate Body Reports, China – HP-SSST (Japan)/ China – HP-SSST (EU) , para. 5.109).   
33 Appellate Body Report, US – Continued Suspension , Annex IV, para. 9 . 
34 Our interpretation of Article 18.2 would not permit a party to disclose a statement of its own positions 
to the public by simply appending the written  submissions of another party with the introductory words, "We 
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  may not refer to information designated as confidential by a Member in accordance with the third 
sentence of Article  18.2, the information eligible for such designation is limited to facts and other 
evidence submitted to a panel or the Appellate Body and additionally excludes any information that 
is already publicly available.  
5.16.   We therefore conclude that the disc losures in the published version of the European Union's 
third-party submission and statement of aspects of Russia's positions concerning the measures at 
issue and defence under Article XXI of the GATT 1994, as well as aspects of the positions of other 
third parties, for the purpose of setting forth the European Union's positions on those issues, are not 
inconsistent with the confidentiality obligations contained in Article 18.2 of the DSU.  
5.17.   Paragraph 2 of the Working Procedures reflects the obligati ons in Article 18.2 of the DSU.35 
Although there are differences in terminology between paragraph 2 of the Working Procedures and 
Article 18.2 of the DSU, we do not consider any of the differences to be relevant to the issue before 
us. Therefore, we reach the same conclusion with respect to the alleged violations of paragraph 2 of 
the Working Procedures.  
5.18.   In the light of the above, we find it unnecessary to take any action regarding the European 
Union's published third -party submission and statement b ased on the disclosure of aspects of 
Russia's positions concerning the measures at issue and defence under Article XXI of the GATT 1994.  
5.3  Objections to disclosure of contents of other procedural documents pertaining to the 
Panel's proceedings  
5.19.   Russia objects to the European Union's disclosure, in its published third -party statement, of 
the following excerpts from the Panel's ruling on the joint request for enhanced third -party rights: 
[this proceeding presents] "an exceptional situation";  [this proceeding raises issues of] "vital 
systemic importance"; and [the Panel's conclusions regarding the interpretive issues raised by Russia 
will have] "far -reaching effects on the determination of the ambit of the covered agreements and on 
the WTO as a whole".36  
5.20.   The Panel's ruling on the joint request for enhanced third -party rights was circulated to the 
parties and third parties on 9 January 2018, and was marked as "Confidential" by the Panel.  
5.21.   The European Union's published third -party statement quotes directly from the Panel's ruling 
for the purpose of introducing points that it wishes to make on issues that are distinct from those 
addressed in the Panel's ruling. It is therefore not possible to discern the context in which the Panel 
made the excerpted statements. The outcome of the Panel's ruling on the joint request for enhanced 
third-party rights was not disclosed and the Panel's reasoning in support of the outcome was not 
disclosed, nor was the ruling itself published.  
5.22.   In thes e circumstances, we do not consider that the confidentiality of the ruling was 
compromised. We therefore find it unnecessary to take any action regarding the European Union's 
published third -party statement based on the quotation of excerpts from the Panel s' ruling on the 
joint request for enhanced third -party rights.  
5.4  Objections to disclosure of the contents of the Panel's questions to the parties and 
third parties  
5.23.   Russia objects that the European Union has disclosed the contents of the Panel's  questions to 
the parties and third parties during the first substantive meeting in stating in the published version 
of its third -party statement: "[f]inally, with regard to the Panel's question concerning indirect transit 
routes …".37  
                                                
do not agree with the following". This would amount to a publication of the actual written submission of the 
other party, contrary to the first sentence of Article 18.2 of the DSU.  
35 See fn 22  above.  
36 Russia's letter dated 14 March 2018, second paragraph on p. 2 (referring to the European Union's 
third-party statement, para. 2).  
37 Russia's letter dated 14 March 2018, second paragraph on p. 2 (referring to the European Union's 
third-party sta tement, para. 38).  WT/DS512/R/Add.1  
 
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  5.24.   Russia does not indicate which Panel question or questions it considers were thereby 
disclosed. However, the Panel notes that the advance questions which it sent to the third parties 
(with a copy to the parties) on 12 January 2018, were marked "Confidential", and incl uded the 
following question:  
Leaving to one side the potential application of Articles XX and XXI of the GATT 1994, 
whether there are any circumstances in which a Member across whose territory goods 
are transiting may require that transit of such goods fr om a neighbouring Member not 
proceed directly across their mutual border, but through another country, without the 
designation of such "indirect" transit route amounting to a violation of Article V:2, first 
sentence.  
5.25.   The reference in the European Un ion's published third -party statement to "the Panel's 
question concerning indirect transit routes" was made by way of introduction to its statement of 
position on whether a particular route at issue in this dispute could be considered a "route most 
conveni ent".  
5.26.   In these circumstances, we do not consider that a reference to a "question concerning indirect 
transit routes" reveals the contents of the Panel's question so as to compromise the confidentiality 
of the Panel's questions to the parties and th ird parties. We therefore find it unnecessary to take 
any action regarding the European Union's published third -party statement based on the reference 
to "the Panel's question concerning indirect transit routes".  
5.5  Objections to disclosure of informati on regarding the Panel's timetable  
5.27.   Russia objects that the European Union disclosed the date of receipt of the third -party 
submissions and the date of the first substantive meeting of the Panel.  
5.28.   Russia does not identify where in the European  Union's published third -party submission and 
statement the date of receipt of third -party submissions or date of the first substantive meeting is 
revealed directly, or if not revealed directly, how these dates are nevertheless revealed.38 As Russia 
has no t sufficiently explained the grounds for its objection, we decline to address it further.  
5.6  Objections to disclosure of the contents of the first substantive meeting and details 
regarding the ongoing dispute of Russia – Pigs 
5.29.   Russia objects that the European Union disclosed the "contents of the first substantive 
meeting" and details relating to the ongoing dispute, Russia – Pigs.  
5.30.   Regarding the alleged disclosure of the contents of the first substantive meeting, it would  
appear from the paragraph of the European Union's published third -party statement to which Russia 
refers that Russia objects to the European Union's statement that, at the party session of the first 
substantive meeting, Russia referred to the amendments t o Resolution No. 778 effected by 
Resolution No. 1292.  
5.31.   Paragraph 3 of the Working Procedures states that "[t]he Panel shall meet in closed session."  
5.32.   The European Union's reference to the fact that Russia referred to a particular amendment to 
Resolution No. 778 was made by way of introduction to a statement of the European Union's 
positions in Russia – Pigs, a dispute between the European Union and Russia, which is unconnected 
to the present dispute.  Resolution No. 778 is one of the legal instru ments set forth in Ukraine's panel 
request.39 The panel request also refers to "any amendments …, extensions, implementing 
measures, and any other measures related to the measures listed above" which would include 
Resolution No. 1292.40 In essence, the Eur opean Union has disclosed that, during the first 
substantive meeting, Russia referred to certain legal instruments implementing the measures at 
issue.  
                                                
38 Russia's letter dated 14 March 2018, pp. 1 -3. 
39 Ukraine's request for the establishment of a panel, p. 2.  
40 Ukraine's request for the establishment of a panel, p. 3.  WT/DS512/R/Add.1  
 
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  5.33.   In these circumstances, we do not consider that the European Union has disclosed the 
contents of the first substantive meeting of the Panel and thus violated paragraph 3 of the Working 
Procedures. We therefore find it unnecessary to take any action regarding the European Union's 
published third -party statement based on its reference to the fact that R ussia referred to the 
amendments to Resolution No. 778 by Resolution No. 1292.  
5.34.   The details relating to the Russia – Pigs dispute that are the focus of Russia's other objection 
appear to concern the fact that the European Union disclosed, in its publ ished third -party statement, 
that the reasonable period of time for Russia to have brought the measures in Russia - Pigs into 
compliance expired in December 2017, that Russia claimed that it had fully complied with the DSB 
recommendations and rulings in th at dispute, and that the European Union considered that Russia 
had not complied. All of the information regarding these facts is publicly available, and therefore, is 
not confidential.41 
5.35.   Accordingly, w e do not consider that the European Union's refe rences to issues pertaining to 
the Russia – Pigs dispute in the European Union's published third -party statement contravene any 
confidentiality obligations to which the European Union is subject in these proceedings.  We therefore 
find it unnecessary to tak e any action regarding the European Union's published third -party 
statement based on its disclosures concerning the Russia – Pigs dispute.42  
6  RULING  
6.1.  For the reasons set forth above, the Panel rules as follows:  
a. The Panel has jurisdiction to addr ess Russia's complaints that the European Union has 
failed to observe confidentiality obligations applicable to these proceedings43; 
b. The disclosures in the European Union's published third -party submission and statement 
of aspects of Russia's positions concerning the measures at issue and defence under Article 
XXI of the GATT 1994, as well as aspects of the positions of other third parties, are not 
inconsistent with the confidentiality obligations contained in Article 18.2 of the DSU44 or 
with paragraph 2 of the Working Procedures45; 
c. The quotations of excerpts from the Panel's ruling on the joint request for enhanced third 
party rights in the European Union's published third -party statement do not, in the 
circumstances, compromise the confide ntiality of that ruling46; 
d. The reference to a "question concerning indirect transit routes" in the European Union's 
published third -party statement does not compromise the confidentiality of the Panel's 
questions to the parties and third parties47; 
e. As Russia has not sufficiently explained the grounds for its objection to the European 
Union's alleged disclosure of the date of receipt of the third -party submissions and the 
date of the first substantive meeting of the Panel48, the Panel need not rule on it; 
                                                
41 See WT/DS475/15, WT/DS475/16, and WT/DS475/17.  
42 We wish to ad d, however, that it is an altogether separate issue whether the European Union's 
statements, in these proceedings, of its positions in an unconnected dispute between the European Union and 
Russia, are relevant to the issues before this Panel, and thus whet her it was appropriate for the European 
Union to have made such statements in these proceedings.  
43 See paragraphs 5.4 and 5.5 above.  
44 See paragraph 5.16 above.  
45 See paragraph 5.17 above.  
46 See paragraph 5.22 above.  
47 See paragraphs 5.25 and 5.26 above.  
48 See paragraphs 5.27 and 5.28 above.  
 WT/DS512/R/Add.1  
 
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  f. The disclosure in the European Union's published third -party statement of the fact that, 
during the first substantive meeting, Russia referred to certain legal instruments is not a 
violation of paragraph 3 of the Working Procedures49; and  
g. The ref erence by the European Union to the ongoing dispute in Russia – Pigs in its 
published third -party statement does not disclose any "confidential information" which was 
not publicly available.50 
6.2.  The Panel therefore declines to take action against the E uropean Union in relation to the 
publication of its third -party submission and statement on the website of the European Commission's 
Directorate -General for Trade.  
 
                                                
49 See paragraphs 5.29, 5.32, and 5.33 above.  
50 See paragraphs 5.29, 5.34, and 5.35 above.  WT/DS512/R/Add.1  
 
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  ANNEX B -3 
ADMISSIBILITY RULING  
Issued by the Panel on 23 July  2018  
1  INTRODUCTION  
1.1.  This ruling addresses the request of the Russian Federation (Russia) that the Panel exclude 
Exhibit UKR -106 (BCI) from the record in this dispute. Russia regards the late submission of this 
exhibit as contrary to paragraph 7 of the Working Pro cedures and "an abuse of process" by Ukraine. 
Ukraine considers that Exhibit UKR -106 (BCI) is evidence submitted for purposes of rebuttal, which 
may be submitted after the first substantive meeting in accordance with paragraph 7 of the Working 
Procedures.  
1.2.  The issue before us is whether Ukraine's submission of Exhibit UKR -106 (BCI) at the second 
substantive meeting was timely in the circumstances, particularly in light of paragraph 7 of the 
Working Procedures. Paragraph 7 of the Working Procedures provides t hat: 
[E]ach party shall submit all factual evidence to the Panel no later than during the first 
substantive meeting, except with respect to evidence necessary for purposes of 
rebuttal , answers to questions or comments on answers provided by the other party . 
Exceptions to this procedure shall be granted upon a showing of good cause. Where 
such exception has been granted, the Panel shall accord the other party a period of time 
for comment, as appropriate, on any new factual evidence submitted after the first 
substantive meeting.  
1.3.  Exhibit UKR -106 (BCI) is evidence that pertains to a disputed issue between the parties, 
namely, whether Ukraine has demonstrated that a category of measures, the "2014 transit bans and 
other transit restrictions", existed at the time of Ukraine's panel request.  
1.4.  Russia's basic position is that Exhibit UKR -106 (BCI) is factual evidence that is not necessary  
for purposes of rebuttal, within the meaning of paragraph 7 of the Working Procedures, given the 
nature of the exchanges between th e parties on the issue at the first substantive meeting, and the 
fact that the evidence in question was available to Ukraine prior to the first substantive meeting and 
could have been submitted at the first substantive meeting.1  
1.5.  Ukraine's position is that  Exhibit UKR -106 (BCI) directly rebuts Russia's argument, made at 
the first substantive meeting, that one of the legal instruments through which the measures in 
question are implemented ( Rosselkhoznadzor instruction No. FS -NV-7/22886) does not apply, and 
has never applied, with respect to Ukraine.2 Therefore, the requirement of paragraph 7 of the 
Working Procedures, that factual evidence be submitted no later than during the first substantive 
meeting, does not apply to the present situation, and Ukrain e may submit this factual evidence at 
any point during the proceedings following the first substantive meeting.3 
                                                
1 Letter of the Russian Federation dated 13 June 2018, pp. 1 and 3.  
2 Ukraine's comments on Russia's response to Panel question No. 8, para. 37.  
3 Ukraine's comments on Russia's response to Panel question No. 8, para. 37.  Ukraine also denies that 
its filing  of Exhibit UKR -106 (BCI) with its opening statement at the second substantive meeting deprived 
Russia of the opportunity to verify the information contained in the exhibit and to  prepare an appropriate 
response. It considers that Russia had opportunities to comment on this evidence in its closing statement at 
the second meeting of the Panel, or in its response to Panel question No. 8 following the second meeting with 
the Panel. (Ukraine's comments on Russia's response to Panel question No. 8, paras. 38 -40.) 
 WT/DS512/R/Add.1  
 
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  2  ANALYSIS  
2.1.  According to the Appellate Body, due process is best served by working procedures that provide 
for appropriate factual discovery at an  early stage in panel proceedings.4 Under standard working 
procedures, the complaining party is required to put forward its case, with a full presentation of the 
facts on the basis of the submission of supporting evidence, during the first stage of panel 
proceedings, that is, up to and including the first substantive meeting of the panel with the parties.5 
This requirement of the standard working procedures is reflected in paragraph 7 of the Working 
Procedures in this dispute. Paragraph 7 of the Working Pro cedures also recognizes that, as the 
proceedings develop, it may become necessary for a party to submit additional evidence in order to 
rebut arguments that have subsequently arisen, to respond to questions posed by the panel or other 
party, or to comment on answers to questions provided by the other party.  
2.2.  The question is whether Exhibit UKR -106 (BCI) falls under one of these exceptions. In the first 
round of arguments, Ukraine's arguments concerning the existence of the measures in question 
related to th eir legal existence in Russia's legal system without reference to any specific instances 
of application. That is, Ukraine's arguments related to the existence of the measures "as such".6 
Russia's answer was that Ukraine failed to prove that the measures we re ever applied in respect of 
Ukraine.7 At the second substantive meeting, Ukraine reiterated its "as such" argument while also 
submitting the contested exhibit concerning the application of the measure, in one instance, as 
evidence in support of its main argument.8 But this does not make such evidence "necessary for 
purposes of rebuttal" within paragraph 7 of the Working Procedures.9 
3  DECISION  
3.1.  We therefore grant Russia's request and exclude Exhibit UKR -106 (BCI) from the record, on 
the basis that it constit utes factual evidence that was not submitted in a timely manner as required 
by paragraph 7 of the Working Procedures, and does not fall within either of the exceptions provided 
for in that paragraph.  
 
_______________  
 
                                                
4 Appellate Body Report, Thailand – Cigarettes , para. 149 (referring to Appellate Body Report, India – 
Patents (US) , para. 95.) Due process requires that each party be afforded a meaningful opportunity to 
comment on the arguments and evidence adduced by the other party  and that each party be provided with an 
opportunity to respond to claims made against it.  (Appellate Body Report, Thailand – Cigarettes , para. 150 
(referring to Appellate Body Report, Australia – Salmon , para. 278). ) 
5 Appellate Body Report , US – Gambling , para. 271 and fn 316 thereto (referring  to Appellate Body 
Report, Argentina – Textiles and Apparel , para. 79.)   
6 In its opening statement at the first substantive meeting, Ukraine notes that, because 
Rosselkhoznadzor instruction No. FS -NV-7/22886 entered into force on 30 November 2014 and continues to 
apply in its amended form, "[i]t is […] unclear why the Russian Federation now complains that Ukraine 
provided no evidence of the continuing application of the legal instruments through which  the 2014 transit ban 
and other transit restrictions are imposed." Ukraine adds that the instruction at issue and the amendment 
thereto have not "expire[d] or los[t] their legal effects." (Ukraine's opening statement at the first meeting of 
the Panel, para s. 9-14.) Ukraine later clarifies in its second written submission that its claims as regards the 
instruction at issue and the amendment to the instruction are "as such" claims, and that Ukraine is not 
challenging the instructions "as applied". (Ukraine's second written submission, para. 25.) See also Ukraine's 
comments on Russia's response to Panel question No. 8, para. 32.  
7 Russia's opening statement at the first meeting of the Panel, para. 6.  
8 Ukraine submitted Exhibit UKR -106 (BCI) "[f]or the avoidance of any doubt on this matter" and to 
reinforce Ukraine's arguments. (Ukraine's opening statement at the second meeting of the Panel, para. 7.)  
9 This is apparent from Ukraine's comment on Russia' s response to Panel question No. 8  that "the 
success of Ukraine's claims regarding the 2014 transit ban and other transit restrictions does not depend  on 
evidence of the application of those instructions with respect to Ukraine." ( Ukraine's comments on Rus sia's 
response to Panel question No. 8, para. 37 . (emphasis added)) See also Ukraine's second written submission, 
para. 25; and opening statement at the second meeting of the Panel, para. 32.  WT/DS512/R/Add.1  
 
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ANNEX C  
ARGUMENTS  OF THE PARTIES  
UKRAINE  
Contents  Page  
Annex  C-1 First e xecutive summary of the arguments of Ukraine  33 
Annex  C-2 Second e xecutive summary of the arguments of Ukraine  43 
 
RUSSIAN FEDERATION  
Contents  Page  
Annex  C-3 First executive summary of the arguments of the Russian Federation  53 
Annex  C-4 Second executive summary of the arguments of the Russian Federation  60 
 
 WT/DS512/R/Add.1  
 
- 33 - 
 
  ANNEX  C-1 
FIRST EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE  
I. INTRODUCTION  
1. The present dispute concerns various bans and other restrictions imposed by the Russian 
Federation on traffic in transit by road and rail transportfromthe territory of Ukraine, through the 
territory of the Russian Federation, to the territory of Kazakhstan,  the Kyrgyz Republic and certain 
other third countries in Central and Eastern Asia and the Caucasus, and the publication and 
administration of those bans and restrictions. Some measures at issue apply to traffic in transit of 
all goods, while others apply to traffic in transit of non -zero duty goods and goods from certain 
countries (t he United States, the European Union, Canada, Australia, Norway, Albania, Montenegro, 
Iceland, Liechtenstein and Ukraine) of which the importation into the Russian Federation i s prohibited 
("Resolution No. 778 goods "). 
II. MEASURES AT ISSU E 
2. Ukraine challenges four categories of measures of the Russian Federation:  
▪ The 2014 transit ban and other transit restrictions, imposed by Instructions of 
Rosselkhoznadzor Nos. FS -NV-7/228861 and FS-AS-3/22903, prohibiting transit of 
veterinary Resolution No. 778 goods through the checkpoints of the Republic of Belarus; 
requiring that transit of such goods through the territory of the Russian Federation is allowed 
only through nine identif ied checkpoints located at the Russian part of the external border 
of the Customs Union of the Eurasian Economic Union ( "EAEU "); requiring that a permit is 
obtained in order for such traffic in transit to pass through the territory of the Russian 
Federatio n; and requiring that traffic in transit of plant Resolution No. 778 goods passes 
through the checkpoints across the state border of the Russian Federation . 
▪ The 2016 general transit ban and other transit restrictions, imposed by Decree No. 
12,prohibiting  that traffic in transit from the territory of Ukraine and destined for the 
territories of Kazakhstan and the Kyrgyz Republic directly passes through the territory of the 
Russian Federation at the border between Ukraine and the Russian Federation , requiring  that 
such traffic in transit passes via the Belarus route (which includes the entry and exit control 
point requirement)and satisfies the identification and registration card requirements.  
▪ The 2016 product -specific transit ban and other transit restricti ons, imposed byDecree No. 
13, prohibiting that traffic in transit of Resolution No. 778 goods and non -zero duty goods 
from the territory of Ukraine and destined for the territories of Kazakhstan and the Kyrgyz 
Republic directly passes through the territory  of the Russian Federation, requiring that such 
traffic in transit passes via the Belarus route (which includes the entry and exit control point 
requirement), provided that the request and authorisation requirements are met and that 
the traffic in transit satisfies the identification and registration card requirements.  
▪ The de facto application of the 2016 general and product -specific transit bans in Decree No. 
1, as amended, to traffic in transit from the territory of Ukraine and destined for the 
territor ies of Mongolia, Tajikistan, Turkmenistan and Uzbekistan ( "the de facto application of 
the 2016 general and product -specific transit bans "). 
3. Contrary to the Russian Federation 's allegations, the 2014 transit ban and other transit 
restrictionscontinue to  exist.On the one hand, Instruction No. FS -NV-7/22886 was formally amended 
by Instruction No. FS -EN-7/19132 on 10 October 2016. On the other hand, Decree No. 1 and 
Resolution No. 1 did not causeInstructions Nos. FS -NV-7/22886 and FS -AS-3/22903 to expire or  
lose their legal effect. Only in so far as there is a conflict will the provisions contained in Decree No. 
1 and Resolution No. 1prevail over the provisions contained in Instruction No. FS -NV-7/22886in 
certain defined cases.  
                                                
1 As amended by Instruction No. FS -EN-7/19132.  
2 As amended by D ecree No. 319 and Decree No. 643, and implemented by Resolutions Nos. 1, 147 and 
276 (as amended) and PJSC Russian Railways Order No. 529r.  
3 Ibid. WT/DS512/R/Add.1  
 
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  4. The de facto application of  the 2016 general and product -specific transit bansis an unwritten 
measure consisting of the application of a written measure of general and prospective application to 
a type of traffic in transit that is not covered by that written measure. Ukraine submit s that its 
burden to show the existence of that measure cannot be identical to that which applies in case of an 
unwritten measure that is unrelated to a written measure of general and prospective application. 
Ukraine has shown that (i) the measure is attri butable to the Russian Federation; that (ii) the content 
of the measure is the application of the general and product -specific transit bans in Decree No. 1, 
as amended, to transit destined for the territories of Mongolia, Tajikistan, Turkmenistan and 
Uzbek istan; and that (iii) the ban applied to transit destined for the territories of Mongolia, Tajikistan, 
Turkmenistan and Uzbekistan applies in general and in the future.  
III. UKRAINE 'S PANEL REQUEST SATI SFIES THE REQUIREMEN TS OF ARTICLE 6.2 OF  
THE DSU  
5. Ukraine asks the Panel to reject the Russian Federation 's objections, raised in Section III of 
its opening statement at the first substantive meeting, as regards whether the Panel request properly 
identifies the specific measures at issue and provides a le gal basis that is sufficient to present the 
problem clearly.  
6. The fact that Ukraine decided to identify the specific measures at issue in this dispute by 
presenting them in two separate sections of its Panel request4 does not automatically mean that, in  
doing so, the measures identified in each section must be presumed to "operate together ".  
7. Furthermore, the Russian Federation has not put forward any argument, based on an 
interpretation of Article 6.2 of theUnderstanding on rules and procedures governing the settlement 
of disputes ( "DSU")and an assessment of the structure and the terms of the Panel request read as 
a whole, in support of its complaint that Ukraine did not identify whether the specific measure 
identified in the sixth par agraph of Section III.A of the Panel request is written or unwritten and is 
challenged as such or as applied. In that sixth paragraph, Ukraine identified as a distinct measure 
the application in fact of the measures introduced by Decree No. 1 and Resolutio n No. 1 to traffic in 
transit destined for territories other than those covered by Decree No. 1 and Resolution No. 1. By 
identifying that measure through, inter alia, the phrase "territories in Central and Eastern Asia and 
Caucasus ", Ukraine did not refer to an open -ended list.  
8. Finally, the Panel request puts the Russian Federation in a well -informed position so that it is 
able to defend itself against each claim made with respect to the specific measures at issue. On the 
plain terms of the Panel reques t, read as a whole, it is clear what case the Russian Federation must 
answer.  
IV. CLAIMS UNDER ART ICLE V OF THE GATT 1 994 AND PARAGRAPH 11 61 OF THE 
WORKING PARTY REPORT  
9. Ukraine submits that the 2014 transit ban and other transit restrictions, the 2016 g eneral 
transit ban and other transit restrictions, the 2016 product -specific transit ban and other transit 
restrictions and the de facto application of the 2016 general and product -specific transit bans apply 
to traffic in transit as defined for the purpos es of Article V of theGeneral Agreement on Tariffs and 
Trade 1994 ( "GATT 1994 ") and, as a result, aresubject to the obligations laid down in that provision.  
10. Ukraine claims that the Russian Federation, through the measures at issue, violates Articles 
V:2, first and second sentences, V:3, V:4 and V:5 of the GATT 1994. By establishing such violations, 
Ukraine has also, in each instance, shown a violation of paragraph 1161 of the Working Party 
Report5. 
A. Violation of Article V:2, first sentence, of the GAT T 1994  
                                                
4 Russia – Measures Concerning Traffic in Transit – Request for the Establishment of a Panel by Ukraine, 
WT/DS512/3 (10 February 2017) (“Panel request”).  
5 Report of the Working Party on the Accession of the Russian Federation to the World Trade 
Organization dated 17 November 2011, WT/ACC/RUS/70 and WT/MIN(11)/2 (“Working Party Report”).  WT/DS512/R/Add.1  
 
- 35 - 
 
  11. The first sentence of Article V:2 of the GATT 1994establishes the freedom of transit for traffic 
in transit to or from the territory of other World Trade Organization ( "WTO") Members. 
Corresponding with that freedom is the basic obligation for a ll WTO Members to guarantee, as 
regards traffic in transit passing through their territory, freedom of transit via the routes most 
convenient for international transit.The qualification "via the routes most convenient for international 
transit " makes it cl ear that WTO Members must let foreign goods pass across their territory for the 
purpose of international transit and in a manner that facilitates trade by offering access to the most 
convenient routes of passage.  
12. In making an objective assessment of th e conditions under which international transit may 
occur, Ukraine considers that is relevant to consider, inter alia: (i) the mode of transport; (ii) the 
provenance of the goods; (iii) the destination of the goods; (iv) the length of the transit route; (v)  
the available access to the transit routes; (vi) the administrative formalities and charges incurred; 
(vii) the cost of using the transit routes; (viii) the operator 's right to choose a mode of transport; 
and (ix) the product characteristics.  
13. Ukraine submits that the 2014 transit ban, the 2016 general and product -specific transit bans 
and the de facto application of the 2016 general and product -specific transit bans violate Article V:2, 
first sentence, of the GATT 1994.Through those measures, the Russi an Federation precludes traffic 
in transit from passing, via the most convenient routes, from the territory of either Belarus or 
Ukraine, through the territory of the Russian Federation, to the territories of certain third 
countries.More specifically:  
▪ the 2014 transit banprohibits the entry of traffic in transit of veterinary Resolution No. 778 
goods at the border between Belarus and the Russian Federation;  
▪ the 2016 general transit ban prohibitsdirecttraffic in transit of all goods by road and rail 
transport from the territory of Ukraine, through the territory of the Russian Federation, to 
the territories of Kazakhstan and the Kyrgyz Republic and prohibits indirecttraffic in transit 
of such goods other than through the Belarus route;  
▪ the 2016 product -specific transit ban prohibits direct traffic in transit and as good as 
prohibits indirect traffic in transit by road and rail transport of Resolution No. 778 goods and 
non-zero duty goods from the territory of Ukraine, through the territory of the Russian 
Federation, to the territories of Kazakhstan and the Kyrgyz Republic; and  
▪ the de facto application of the 2016 general and product -specific transit 
bansprohibitsdirecttraffic in transit of all goods by road and rail transport from the territory 
of Ukrain e, through the territory of the Russian Federation, to the territories of Mongolia, 
Tajikistan, Turkmenistan and Uzbekistanand, for Resolution No. 778 goods and non -zero 
duty goods, also prohibits indirecttraffic in transit through the territory of the Rus sian 
Federation.  
14. Whereas the freedom of transit guaranteed by the first sentence of Article V:2 of the GATT 
1994 is to be qualified by the specific rules as regards charges, regulations and formalities found in 
the other paragraphs of Article V, Ukrain e submits that those specific rules do not provide that a 
measure prohibiting  traffic in transit may nonetheless be consistent with Article V. In other words, 
where a measure is found to prohibit  traffic in transit via the most convenient routes, that find ing is 
sufficient to conclude that the measure is inconsistent with Article V:2, first sentence, of the GATT 
1994.  
15. Ukraine submits that the 2014 other transit restrictions and the 2016 general and product -
specific other transit restrictions violate Article V:2, first sentence, of the GATT 1994, because those 
restrictions interfere with the freedom of transit via the most convenient routes. More specifically:  
▪ the 2014 other transit restrictions require that traffic in transit of veterinary Re solution No. 
778 goods through the territory of the Russian Federation is allowed only through nine 
identified checkpoints located at the Russian part of the external border of the EAEU Customs 
Union;  WT/DS512/R/Add.1  
 
- 36 - 
 
  ▪ the 2016 general other transit restrictionsrequire th attraffic in transit of all goods by road 
and rail transport from the territory of Ukraine, through the territory of the Russian 
Federation, to the territories of Kazakhstan and the Kyrgyz Republic passes via the Belarus 
route (which includes the entry and  exit control point requirement) and satisfiesthe 
identification and registration card requirements; and  
▪ the 2016 product -specific other transit restrictionsrequire that traffic in transit of Resolution 
No. 778 goods and non -zero duty goodsby road and ra il transport from the territory of 
Ukraine, through the territory of the Russian Federation, to the territories of Kazakhstan and 
the Kyrgyz Republicpasses via the Belarus route (which includes the entry and exit control 
point requirement), provided that t he request and authorisation requirements are metand 
that the traffic in transit satisfies the identification and registration card requirements.  
16. Ukraine claims that, by imposing each of those restrictions, the Russian Federation impedes 
the freedom of  transit by rendering traffic in transit, and therefore possibly also exportation and 
importation, more burdensome, expensive, slow or even (nearly) impossible. In so far as the 
restrictions fall within the scope of the other paragraphs of Article V of the  GATT 1994, Ukraine 
shows that those restrictions are inconsistent with the conditions laid down in those paragraphs.  
B. Violation of Article V:2, second sentence, of the GATT 1994  
17. Ukraine submits that the 2014 transit ban and other transit restriction s, the 2016 general and 
product -specific transit bans and other transit restrictions and the de facto application of the 2016 
general and product -specific transit bans violate the Russian Federation 's obligation under the 
second sentence of Article V:2 of the GATT 1994, by distinguishing between traffic in transit based 
on prohibited criteria. More specifically:  
▪ the 2014 transit ban and other transit restrictions distinguish (i) based on the place of origin 
and entry of traffic in transit into the territo ry of the Russian Federation by prohibiting the 
entry of traffic in transit of veterinary Resolution No. 778 goods at the border between 
Belarus and the Russian Federation and by requiring that the entry of such traffic in transit 
occurs at a limited numbe r of checkpoints located at the Russian part of the external border 
of the EAEU Customs Union; (ii) based on the place of destination of traffic in transit of 
veterinary Resolution No. 778 goods passing through the territory of the Russian Federation 
by im posing different transit permit requirements depending on whether the goods are 
destined for Kazakhstan or other third countries; and (iii) based on the place of origin by 
requiring that the movement of traffic in transit of plant Resolution No. 778 goods occurs 
through the checkpoints across the state border of the Russian Federation;  
▪ the 2016 general transit banand other transit restrictionsdistinguish(i) based on the place 
of departure, entry, exit and destination of traffic in transit, by prohibiting the direct traffic 
in transit of all goods by road and rail transport from the territory of Ukraine, through the 
territory of the Russian Federation, to the territories of Kazakhstan and the Kyrgyz Republic; 
and (ii) based on the place of departure, entry,  exit, and destination of traffic in transit, by 
subjecting traffic in transit from Ukraine and destined for the territories of Kazakhstan and 
the Kyrgyz Republic to the Belarus route requirement (which includes the entry and exit 
control point requirement ), together with the identification and registration card 
requirements;  
▪ the 2016 product -specific transit banand other transit restrictions distinguish (i) based on 
the place of origin and destination of traffic in transit, by prohibiting traffic in tran sit of 
Resolution No. 778 goods and non -zero duty goods by road and rail transport from the 
territory of Ukraine, through the territory of the Russian Federation, to the territories of 
Kazakhstan and the Kyrgyz Republic; and (ii) based on the place of orig in, departure, entry, 
exit and destination of traffic in transitfrom Ukraine and destined for the territories of 
Kazakhstan and the Kyrgyz Republic, making the derogation from the ban on indirect traffic 
in transit dependent on the request and authorisatio n requirements and on compliance with 
the Belarus route requirement (which includes the entry and exit control point requirement), 
and the identification and registration card requirements; and  WT/DS512/R/Add.1  
 
- 37 - 
 
  ▪ the de facto application ofthe 2016 general and product -specific transit bans distinguish 
based on the place of origin, departure, entry and destination of traffic in transit, by 
prohibiting direct traffic in transit of all goods by road and rail transport from the territory 
of Ukraine, through the terr itory of the Russian Federation, to the territories of Mongolia, 
Tajikistan, Turkmenistan and Uzbekistan, and by prohibiting all traffic in transit of Resolution 
No. 778 goods and non -zero duty goodsby road and rail transport from the territory of 
Ukraine,  through the territory of the Russian Federation, to the territories of Mongolia, 
Tajikistan, Turkmenistan and Uzbekistan.  
C. Violation of Article V:3 of the GATT 1994  
18. Ukraine claims that the 2016 general and product -specific other transit restrictions  violate 
Article V:3 of the GATT 1994 by subjecting traffic in transit through the territory of the Russian 
Federation, which has been entered at a customs house, to unnecessary delays or restrictions. In 
particular, the Belarus route requirement (which in cludes the entry and exit control point 
requirement), the conditional access to the Belarus route (for traffic in transit of Resolution No. 778 
goods and non -zero duty goods),and the identification and registration card requirements result in 
delays or res trictions that go beyond what is necessary in order to put traffic in transit under a 
transit procedure in order to ensure that goods move through the territory (and eventually leave the 
territory) as traffic in transit instead of entering the territory (i n the sense of importation). Those 
requirements have no bearing whatsoever on the objective of putting that traffic in transit under a 
transit procedure. Moreover, the identification and registration card requirements are unnecessary 
because traffic in tra nsit made subject to those requirements is already put under a customs transit 
procedure and therefore has already been entered at a customs house upon starting the passage 
through the customs territory of the EAEU Customs Union.  
D. Violation of Article V: 4 of the GATT 1994  
19. Ukraine submits that the Russian Federation violates Article V:4 of the GATT 1994 by imposing 
unreasonable regulations – meaning regulations that are not adequate and fair for achieving the 
purpose on the basis of which they are appl ied, taking into account the conditions of the traffic – on 
traffic in transit to or from the territories of WTO Members. In particular, the Russian Federation 
makes the derogation from the ban on traffic in transit of Resolution No. 778 goods and non -zero 
duty goods from the territory of Ukraine and destined for the territories of Kazakhstan and the 
Kyrgyz Republic (meaning access to the Belarus route) dependent on the request and authorisation 
requirements. Ukraine has shown that the conditional access to  the Belarus route in the form of the 
request and authorisation requirements is a regulation imposed by the Russian Federation on traffic 
in transit to or from the territory of other WTO Members, and that such conditional access is not 
reasonable, having r egard to the conditions of the traffic. It renders the enjoyment of the freedom 
of traffic in transit entirely dependent on the unfettered discretion of both the third WTO Member 
for whose territory traffic in transit is destined and the WTO Member through  whose territory traffic 
in transit would pass.  WT/DS512/R/Add.1  
 
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  E. Violation of Article V:5 of the GATT 1994  
20. Ukraine submits that the Russian Federation violates Article V:5 of the GATT 1994 by applying 
regulations in connection with transit that accord to traffic in transit from the territory of Ukraine 
and destined for the territories of Kazakhstan, the Kyrgyz Republic and certain other third countries 
in Central and Eastern Asia and the Caucasus treatment less favourable than that accorded to traffic 
in transit from the territory of another (non -)WTO Member and destined for the territory of another 
(non-)WTO Member.  
21. In respect of the regulations and formalities imposed by the 2014 other transit restrictions 
and the 2016 general and product -specific oth er transit restrictions, Ukraine claims that the Russian 
Federation fails to accord, to traffic in transit from the territory of Ukraine, the treatment accorded 
to traffic in transit from the territories of other countries and destined for the territories of other 
countries. In particular, the less favourable treatment accorded to such traffic in transit is based on 
an express distinction based on the place of departure, origin, entry, exit and/or destination and 
therefore results in de jure  discrimination.  Ukraine has already established that Article V:2,second 
sentence,of the GATT 1994 prohibits distinctions made on the basis of those criteria. Where the 
treatment accorded as a result of such a distinction modifies the conditions of competition in the 
marketplace to the detriment of traffic in transit from or to a WTO Member, there is also a violation 
of Article V:5 of the GATT 1994.  
22. In particular, through the 2014 other transit restrictions and the 2016 general and product -
specific other transit restri ctions, the Russian Federation treats traffic in transit from Ukraine less 
favourably than traffic in transit from the territory of other countries and destined for other countries, 
which has a detrimental impact on the conditions of competition for traffi c in transit from the territory 
of Ukraine. More precisely:  
▪ the 2014 other transit restrictions require that transit of veterinary Resolution No. 778  goods 
through the territory of the Russian Federation is allowed only through nine identified 
checkpoints  located at the Russian part of the external border of the EAEU Customs Union; 
require that a permit is obtained from the Committee of Veterinary Control and Surveillance 
of the Ministry of Agriculture of Kazakhstan  in order for such traffic in transit to pass through 
the territory of the Russian Federation to the territory of Kazakhstan; and require that traffic 
in transit of plant Resolution No. 778 goods passes through the checkpoints across the state 
border of the Russian Federation ; and  
▪ the 2016 gene ral and product -specific other transit restrictions require that traffic in transit 
of all goods by road and rail transport from the territory of Ukraine, through the territory of 
the Russian Federation, to the territories of Kazakhstan and the Kyrgyz Repu blic passes via 
the Belarus route (which includes the entry and exit control point requirement) and satisfies 
the identification and registration card requirements, and furthermore require that traffic in 
transit of Resolution No. 778 goods and non -zero du ty goods from Ukraine and destined for 
the territories of Kazakhstan and the Kyrgyz Republic meets also the request and 
authorisation requirements.  
23. Finally, Ukraine has already shown that the 2014 transit ban, the 2016 general and product -
specific tran sit bans and the de facto application of the 2016 general and product -specific transit 
bans make distinctions that are prohibited and therefore violate Article V:2, second sentence, of the 
GATT 1994. Those measures are also regulations in connection with t raffic in transit. It follows that 
those measures violate Article V:5 of the GATT 1994, by failing to accord to traffic in transit from 
the territory of Ukraine and destined for the territories of Kazakhstan and the Kyrgyz Republic (the 
2016 general and pr oduct -specific transit bans) and for the territories of Mongolia, Tajikistan, 
Turkmenistan and Uzbekistan (the de facto application of the 2016 general and product specific 
transit bans), the treatment given to traffic in transit from the territory of othe r countries and 
destined for other countries. The Russian Federation also accords, to traffic in transit of goods 
originating in the countries listed in Resolution No. 778, treatment less favourable than that accorded 
to traffic in transit of goods origina ting in other countries. Likewise, the less favourable treatment 
accorded to such traffic in transit is based on an express distinction based on the place of origin, 
departure, entry, exit and/or destination and therefore results in de jure  discrimination.  WT/DS512/R/Add.1  
 
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  V. CLAIMS UNDER ARTI CLES X:1 AND X:2 OF THE GATT 1994 AND PA RAGRAPHS 1426, 
1427 AND 1428 OF THE  WORKING PARTY REPOR T 
24. Ukraine submits that the fact that Article X:1 of the GATT 1994 does not expressly include the 
terms "traffic in transit " or "transit " does not mean that measures covered by Article V of the GATT 
1994 fall outside the scope of the publication and administration requirements contained in Article 
X of the GATT 1994. Measures falling within the scope of Article V may, depending on their con tent, 
design and operation, pertain to "rates of … taxes or other charges " and/or  affect the "transportation 
…, warehousing, inspection … or other use ". 
A. Violation of paragraph 1426 of the Working Party Report and Article X:1 of the 
GATT 1994  
25. Ukraine  submits that the Russian Federation violates both paragraph 1426 of the Working 
Party Reportand Article X:1 of the GATT 1994 by failing to publish promptly (i) Decree No. 319; (ii) 
PJSC "Russian Railways " Order No. 529r; (iii) PJSC "Russian Railways " Notice of 17 May 2016; and 
(iv) the de facto application of the 2016 general and product -specific transit bans.  
26. While paragraph 1426 of the Working Party Report and Article X:1 of the GATT 1994 contain 
the same substantive obligation of prompt publication,  paragraph 1426 expands the scope of 
application of that requirement in Article X:1vis -à-vis the Russian Federation. Indeed, Article X:1 
applies to legal instruments pertaining to or affecting a limited list of subject -matters, while 
paragraph 1426 applies  to the broader category of legal instruments "pertaining to or affecting trade 
in goods, services, or intellectual property rights ".Consequently, a violation of Article X:1 of the 
GATT 1994 implies a violation of paragraph 1426 of the Working Party Report . 
27. Ukraine submits that the prompt publication requirements apply to these four measures 
because they are laws or regulations of general application made effective by the Russian Federation 
which affect the transportation of goods.The Russian Federation  did not (adequately) publish PJSC 
"Russian Railways " Order No. 529r, PJSC "Russian Railways " Notice of 17 May 2016 and the de facto 
application of the 2016 general and product -specific transit bans, and did not publish promptly 
Decree No. 319.  
B. Violation of paragraph 1428 of the Working Party Report and Article X:2 of the 
GATT 1994  
28. Ukraine submits that the Russian Federation violates both paragraph 1428 of the Working 
Party Report and Article X:2 of the GATT 1994 by making effective and enforcing the following 
measures prior to their publication: (i) Decree No. 319; (ii) PJSC "Russia n Railways " Order No. 
529r;(iii) the de facto application of the 2016 general and product -specific transit bans; and (iv) 
Decree No. 643. These measures are laws or regulations of general application made effective by 
the Russian Federation which affect th e transportation of goods, and impose new and more 
burdensome requirements on imports . Ukraine submits that the Russian Federation did not 
(adequately) publish PJSC "Russian Railways " Order No. 529r and the de facto application of the 
2016 general and prod uct-specific transit bans, and enforced Decrees No. 319 and No. 643 prior to 
their publication.  
29. As paragraph 1428 of the Working Party Report expands both the scope of application and the 
substantive publication requirement of Article X:2 of the GATT 1 994, a violation of Article X:2 of the 
GATT 1994 implies a violation of paragraph 1428 of the Working Party Report.  
C. Violation of paragraph 1427 of the Working Party Report  
30. Ukraine submits that the Russian Federation violates paragraph 1427 of the Wo rking Party 
Report, which creates a new obligation vis -à-vis the Russian Federation, by failing to publish the 
following twentymeasures prior to their adoption: (i) Resolution No. 778; (ii) Resolution No. 830; 
(iii) Resolution No. 625; (iv) Resolution No. 842; (v) Resolution No. 981; (vi) Resolution No. 1397; 
(vii) Resolution No. 1; (viii) Resolution No. 147; (ix) Resolution No. 157; (x) PJSC "Russian Railways " 
Order No. 529r; (xi) Resolution No. 276; (xii) Resolution No. 388; (xiii) Resolution No. 472; (xi v) 
Resolution No. 608; (xv) Resolution No. 732; (xvi) Resolution No. 897; (xvii) Resolution No. 1086; 
(xviii) Resolution No. 790; (ixx) Resolution No. 1292; and (xx) Decree No. 643.  WT/DS512/R/Add.1  
 
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  31. Those measuresare regulations of general application pertaining to or  affecting trade in 
goods.The Russian Federation did not adequately publish PJSC "Russian Railways " Order No. 529r 
before or after being finalised, and did not publish the nineteenother resolutions and the decree of 
the Russian Federationprior to their ado ption, meaning before they were finalised.  
VI. CLAIMS UNDER ART ICLE X:3(A) OF THE G ATT 1994  
32. Ukraine claims that the Russian Federation violates Article X:3(a) of the GATT 1994 by failing 
to administer Decree No. 1, as amended by Decree No. 319, in a re asonable manner.  
33. First, the Russian Federation blocks, at the border between Belarus and the Russian 
Federation, the entry of traffic in transit by road and rail transport from the territory of Ukraine and 
destined for the territories of Kazakhstan an d the Kyrgyz Republic without providing any explanation 
of the reasons underlying that decision.This failure to state reasons constitutesan unreasonable  
administration of Decree No. 1, as amended.  
34. Second, the Russian Federation administers paragraphs 1 .1 and 1.2 of Decree No. 1, 
introduced by Decree No. 319, in an unreasonable manner because – as a result of the absence of 
any criteria on the basis of which it decides whether or not to authorise a derogation from the 2016 
product -specific transit ban so  that traffic in transit of Resolution No. 778 goods and non -zero duty 
goods from the territory of the Ukraine and destined for the territories Kazakhstan and the Kyrgyz 
Republic may, exceptionally, pass through the territory of the Russian Federation via the Belarus 
route – that regulation inherently contains the possibility of arbitrary decisions.  
VII. THE RUSSIAN FED ERATION 'S DEFENCE UNDER ARTI CLE XXI(B)(III) OF T HE GATT 
1994 MUST FAIL  
35. The Russian Federation argues that all of the measures  challenge d by Ukraine in these 
proceedings are, as regards all of the claims  made by Ukraine, justified on the basis of Article 
XXI(b)(iii) of the GATT 1994. Besides asking the Panel to find that the measures at issue are not 
WTO-inconsistent, the Russian Federatio n also submits that neither the Panel nor the WTO as an 
institution enjoys jurisdiction to hear this dispute.  
36. Ukraine submits that the Russian Federation cannot, on the one hand, argue that the Panel 
lacks jurisdiction to review the application of Arti cle XXI of the GATT 1994 and, on the other hand, 
request the Panel to find that the measures at issue are not WTO -inconsistent. In any event, the 
Russian Federation 's general jurisdictional objection is not supported by any valid legal argument 
and the Rus sian Federationhas not satisfied its burden of proof under Article XXI(b)(iii) of the GATT 
1994.  
A. The Panel enjoys jurisdiction to examine the Russian Federation 's invocation of 
Article XXI of the GATT 1994  
37. Ukraine submits that there is no basis in t he WTO covered agreements for the Russian 
Federation 's position that the Panel is precluded from hearing and deciding on this dispute because 
it may not review the application of Article XXI of the GATT 1994.Accepting that all WTO Members 
may justify all o f their otherwise WTO -inconsistent measures on the grounds of essential security 
interests without any possibility for scrutiny by a third party would seriously impair the functioning 
of the WTO and its dispute settlement system and possibly threaten its e xistence.  
38. First, Article XXI of the GATT 1994 lays down an affirmative defence for measures which 
otherwise would be inconsistent with an obligation under the GATT 1994.As a result, Ukraine claims 
that it is for the Russian Federation to put forward e vidence and legal arguments in support of its 
assertion that each of the measures at issue, with respect to which it invokes Article XXI(b)(iii) of 
the GATT 1994, satisfies the requirements of that provision.  
39. Second, Article XXI of the GATT 1994 does not provide for an exception to the rules on 
jurisdiction laid down in the GATT 1994 or the DSU.Conversely, the DSU itself does not contain a 
security exceptions clause. Nor does any other part of the GATT 1994 or the other WTO covered 
agreements offer a ba sis for excluding Article XXI of the GATT 1994 from the jurisdiction of WTO 
panels and the Appellate Body.  WT/DS512/R/Add.1  
 
- 41 - 
 
  40. Third, taking into account the Panel 's terms of reference, the Panel enjoys jurisdiction to 
examine and, where relevant, to make findings and rec ommendations with respect to each of the 
provisions of the WTO covered agreements cited by either Ukraine or the Russian 
Federation.Interpreting Article XXI of the GATT 1994 as being non -justiciable would undermine the 
Panel 's terms of reference under Arti cle 7 of the DSU and the general standard of review laid down 
in Article 11 of the DSU.  
41. Fourth,  as a result of the Russian Federation 's argument, WTO Members would be authorised 
to adopt unilateral actions that may not be scrutinised by the WTO dispute settlement system. This 
would also mean that a WTO Member, instead of resorting to the WTO dispute settlement system 
for obtaining redress of violations of WTO rules, could instead turn to unilateral action based on 
Article XXI of the GATT 1994. Su ch unilateral actions would threaten the stability and predictability 
of the multilateral trade system and disregard Article 23 of the DSU.  
42. Fifth, the  Russian Federation disregards the distinction between the jurisdiction of the Panel 
and the applicabl e standard of review as regards the interpretation and application of the WTO 
covered agreements. The fact that the text of Article XXI of the GATT 1994 grants a certain degree 
of deference to the WTO Member invoking its security interestsdoes not mean tha t total deference 
is the appropriate standard of review.Should it be correct that Article XXI of the GATT 1994 grants 
WTO Members unfettered discretion to invoke the protection of their essential security interests, 
there would have been no reason to inclu de separate paragraphs in Article XXI and to distinguish 
between different types of security interests that may be invoked in order to justify a measure that 
otherwise is inconsistent with the GATT 1994.  
43. Sixth, should the Panel be precluded from making  an objective assessment of the entirety of 
the matter before it, it would also be precluded from making findings and recommendations 
regarding that matter. Its findings and recommendations would need to be limited to finding that 
the measures at issue are  inconsistent with the GATT 1994. However, the Russian Federation 
expressly asks the Panel to find that the measures at issueare not inconsistent with its WTO 
obligations.  
44. Seventh, the Russian Federation 's position on jurisdiction cannot find support i n the GATT 
dispute US – Nicaraguan Trade .Unlike what was the case in that dispute, the terms of reference of 
the Panel in these proceedings do not expressly exclude examining the invocation of Article 
XXI(b)(iii) of the GATT 1994.  
45. The GATT 1994 and th e DSU therefore confer on the Panel jurisdiction to examine the Russian 
Federation 's reliance on Article XXI(b)(iii) of the GATT 1994.  
B. Interpretation of Article XXI(b)(iii) of the GATT 1994  
46. In order to successfully defend an otherwise WTO -inconsiste nt measure under Article 
XXI(b)(iii), the invoking WTO Member must show that (i) the measure was "taken in time of war or 
other emergency in international relations "; that (ii) the measure was taken "for the protection of 
its essential security interests; and that (iii) it considers the measure "necessary " to protect its 
essential security interests.  
47. Unlike what is the case for the introductory paragraph of Article XXI(b) of the GATT 1994, the 
text of Article XXI(b)(iii)does not include the phrase "which it considers ". It follows that the phrase 
"taken in time of war or other emergency in international relations " is to be given an objective 
meaning by a panel, and that a WTO Member invoking Article XXI(b)(iii) cannot unilaterally 
determine whether such c ircumstances exist. Ukraine submits that an emergency in international 
relations occurs where there is a serious disruption in international relations that demands action by 
a WTO Member so as to protect its "essential security interests ".In order to enabl e a panel to 
establish whether the measure is "taken in time of war or other emergency in international relations ", 
the WTO Member invoking Article XXI(b)(iii) must provide sufficient arguments and evidence 
showing that the measure at issue was taken in su ch circumstances.  
48. The fact that the text of Article XXI(b) of the GATT 1994 expressly states that it is for a WTO 
Member to decide what action it considers necessary for protecting its essential security interests 
does not mean that a WTO Member enjoys  total discretion.  WT/DS512/R/Add.1  
 
- 42 - 
 
  49. First, the introductory paragraph of Article XXI(b) of the GATT 1994 makes it clear that the 
exception in Article XXI(b) is only triggered where a WTO Member acts "for the protection of its 
essential security interests ".Ukraine submi ts that a panel must interpret the phrase "for the 
protection of its essential security interests " in accordance with the customary principles of 
interpretation and review whether a defending Member relies on Article XXI(b) in order to justify 
actions that  protectits essential security interests. In order to do so, a panel must examine whether 
(i) the interests or reasons advanced by the defendant Member for imposing the measures fall within 
the scope of the phrase "its essential security interests " for the  purposes of Article XXI(b)(iii) of the 
GATT 1994; and whether (ii) the measures are directed at safeguarding the defendant Member 's 
security interests, meaning that there is a rational relationship between the action taken and the 
protection of the essent ial security interest at issue.Through that analysis, a panel in essence verifies 
also whether the defending WTO Member has applied Article XXI of the GATT 1994 in good faith.  
50. In order to enable a panel to conduct such an examination, a Member relying on Article XXI(b) 
of the GATT 1994must provide sufficient evidence,putting a panel in a position to reach a conclusion 
as to whether the advanced interests can reasonably be considered to correspond with the meaning 
of "essential security interests " and as  to whether the measures at issue are capable of protecting 
the essential security interests pursued. Where no arguments and evidence are produced, a panel 
cannot reach any conclusions and must find that the respondent has failed to satisfy its burden of 
proof. 
51. Second,the respondent WTO Member must consider the challenged measure to be "necessary " 
to protect its essential security interests.While a large degree of deference should be accorded to 
the Member taking the measure, Ukraine submits that a pane l is to review whether, based on the 
facts available, the defending Member could reasonably arrive at the conclusion that the measures 
are necessary for protecting its essential interests.  
C. The Russian Federation has not satisfied its burden of proof und er Article 
XXI(b)(iii) of the GATT 1994  
52. Ukraine submits that the Russian Federation has not satisfied its burden of proof under Article 
XXI(b)(iii) of the GATT 1994. Its sole argument in relying on this affirmative defence is the reference 
to an allege d emergency in international relations in 2014. This is insufficient to invoke successfully 
Article XXI(b)(iii) of the GATT 1994.  
53. First, the Russian Federation failed toprovide arguments or evidence showing that the 
measures at issue were "takenin time of war or other emergency in international relations ".As a 
result, Ukraine and the Panel are left in the dark as to what particular emergency in international 
relations caused the Russian Federation to adopt the measures at issue.  
54. Second, the Russian F ederation failed to produce arguments or evidencein order to put the 
Panelin a position to reach a conclusion as to whether the interests advanced by the Russian 
Federation can reasonably be considered to correspond with the meaning of "essential security 
interests " and whether the measures at issue are capable of protecting the essential security 
interests pursued. Without such evidence, the Panel is unable to determine whether the measures 
at issue aregenuinely taken for the protection of the security int erests of the Russian Federation, 
and not for purely economic reasons.  
55. Third, the Russian Federation has not demonstrated that it could reasonably arrive at the 
conclusion that the measures at issue are necessary for the protection of its essential int erests.  
56. Ukraine concludesthat the burden falls on the Russian Federation to show a serious disruption 
in international relations constituting an emergency that is sufficiently connected to the Russian 
Federation so as to result in a genuine and suffici ently serious threat to its essential security interests 
and therefore to justify action necessary to protect those interests.In relying on Article XXI(a) of the 
GATT 1994, the Russian Federation uses that exception to evade its burden of proof under Artic le 
XXI of the GATT 1994. Article XXI(a) exists, as an affirmative defence, in other to justify measures 
that otherwise would be inconsistent with transparency obligations under the GATT 1994, such as 
the publication requirements under Article X of the GATT  1994 and various obligations under the 
GATT 1994 to inform other WTO Members. It may not be invoked in order to evade the Russian 
Federation 's obligations as a respondent WTO Member invoking an affirmative defence.  WT/DS512/R/Add.1  
 
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  ANNEX C -2 
SECOND E XECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE  
I. INTRODUCTION  
1. In these proceedings, the Russian Federation does not contest any of the claims made by 
Ukraine under Articles V and X of the GATT 1994 and under the Working Party Report. The Russian 
Federation's rebuttal is limited to: (i) raising new objections regarding Ukraine's Panel request; (ii) 
complaining that the 2014 transit ban and other transit restrictions no longer exist or were never 
applied with respect to Ukraine; and (iii) relying on  Article XXI(b)(iii) of the GATT 1994 in order to 
justify all of the measures at issue with respect to all of the claims made by Ukraine. Unlike the 
Russian Federation, the third parties have addressed Ukraine's interpretation of Article V of the GATT 
1994 in response to the Panel's questions. The Panel has also raised of its own motion a question 
relating to whether one of the measures was properly identified in the Panel request.  
II. THE PANEL REQUES T SATISFIES THE COND ITIONS OF ARTICLE 6. 2 OF THE DSU  
2. The Panel raised of its own motion and prior to the first substantive meeting the question of 
whether the de facto application of the 2016 general and product -specific transit bans was properly 
identified in the Panel request. That matter has not been rais ed by the Russian Federation which, in 
its first written submission, complained only about an entirely separate question of fact, namely 
whether there was sufficient evidence of the existence of this unwritten measure.  
3. The Russian Federation's response to the Panel's question was to raise a number of new 
challenges to the Panel request and the Panel's terms of reference.  
4. The Russian Federation claimed that the Panel request failed, on the one hand, to identify 
adequately the specific measures at issue  (and not only the de facto  application of the 2016 general 
and product -specific transit bans) and, on the other hand, to establish the necessary nexus between 
the measures at issue and the relevant provisions of the WTO covered agreements which those 
meas ures violate. However, as demonstrated by Ukraine, the statements of the Russian Federation 
in its first and second written submissions show that the Russian Federation was well aware of the 
measures at issue and the claims made by Ukraine. Ukraine also re butted each of the arguments 
made by the Russian Federation in its responses of 20 February 2018.  
5. In its second written submission, the Russian Federation presented a new allegation, namely 
that due to the use of the phrase "each group of measures in Se ction I ( "Background) of the Panel 
request, the specific measures at issue are the "First group of measures and the "Second group of 
measures. In its Panel request, Ukraine clearly indicated that the specific measures at issue are 
identified in Sections II  and III of the Panel request and are organised in two groups. There is nothing 
in the Panel request to support that either group of measures is the specific measure at issue. Each 
section identifies the specific measures at issue as well as the legal inst ruments through which the 
Russian Federation imposes those measures (Sections II.A and III.A), followed by a clear explanation 
of the specific WTO provisions with which the measures identified in each section are inconsistent 
(Sections II.B and III.B).  
6. In its second written submission, the Russian Federation also objected to the final paragraph 
of Section III.A of the Panel request. It argued that any measure affecting traffic in transit from the 
territory of Ukraine to countries in Central/Eastern Asia  and Caucasus through the territory of the 
Russian Federation may fall into this category of, what Ukraine assumes to be, the de facto  
application of the 2016 general and product -specific transit bans.  
7. Ukraine argues that the Russian Federation 's readin g of the Panel request is not grounded in 
the words actually used in that request, considered as a whole. The sixth paragraph of Section III.A 
makes it clear that the matter before the Panel includes the de facto  application of Decree No. 1 and 
Resolution No. 1, and thus the restrictions on traffic in transit imposed by both instruments to 
countries in Central and Eastern Asia and the Caucasus other than Kazakhstan and the Kyrgyz 
Republic. Furthermore, Ukraine has demonstrated that the phrase "Central and Eastern Asia and WT/DS512/R/Add.1  
 
- 44 - 
 
  Caucasus comprises a sufficiently precise and defined list of countries. Taking into account also 
Ukraine 's submissions made during these proceedings – which the Panel may consult in order to 
confirm the meaning of the terms us ed in the Panel request – Ukraine submits that the Russian 
Federation has not shown how the terms of the Panel request have prejudiced its ability to defend 
itself.  
8. Moreover, the Russian Federation fails to acknowledge that the final paragraph of Sectio n III.A 
refers to "related measures, meaning measures that are connected or have a relation to other 
measures identified in the Panel request. By adding the final paragraph in Section III.A, Ukraine did 
no more than to ensure that measures bearing a relati onship with the specific measures at issue, 
without changing the essence of those measures, fall within the Panel 's terms of reference.  
9. In light of the above, and taking into account Ukraine 's previous submissions, Ukraine 
respectfully asks the Panel to  confirm that the Panel request satisfies the conditions of Article 6.2 of 
the DSU.  
III. THE 2014 TRANSI T BAN AND OTHER TRAN SIT RESTRICTIONS CON TINUE TO EXIST 
AND APPLY WITH RESPE CT TO UKRAINE  
10. The Russian Federation continues to allege that Instruction s Nos. FS -NV-7/22886 (the 2014 
veterinary transit ban and other transit restrictions) and FS -AS-3/22903 (the 2014 plant transit 
restriction) impose measures that fall outside the Panel 's terms of reference. Ukraine respectfully 
requests that the Panel reje cts these arguments.  
11. First, the Russian Federation wrongly assumes that, in order to challenge the measures 
imposed by Instructions Nos. FS -NV-7/22886 and FS -AV-3/22903, Ukraine must show that those 
measures are applied to goods originating from Ukrain e. 
12. Second, Instructions Nos. FS -NV-7/22886 and FS -AV-3/22903 are not expired measures and 
continue to apply today. The fact that, on 1 January 2016, the 2016 general transit ban and other 
transit restrictions entered into force does not mean that the I nstructions stopped applying or having 
any effect on traffic in transit passing through Ukraine or originating from Ukraine. Indeed, there is 
no evidence before the Panel that either instruction has been repealed (expressly or implicitly). 
Furthermore, by adopting Instruction No. FS -EN-7/19132, the Russian Federation expressly 
confirmed on 10 October 2016 (i.e. after the filing of the request for consultations) that Instruction 
No. FS -NV-7/22886, as amended, continued to apply. If neither instruction ever a pplied with respect 
to Ukraine, there would have been no need to adopt Instruction No. FS -EN-7/19132.  
13. Third, in any event, the text of Instructions Nos. FS -NV-7/22886 and FS -AV-3/22903 make it 
clear that, even after the imposition of the 2016 general a nd product -specific transit bans and other 
transit restrictions, the measures which they impose apply with respect to certain traffic in transit 
passing through Ukraine. Ukraine emphasizes that the 2016 general and product -specific transit 
bans and other t ransit restrictions do not apply to, inter alia, traffic in transit from Ukraine and 
destined for territories other than  those of Kazakhstan, Kyrgyz Republic, Mongolia, Tajikistan, 
Turkmenistan and Uzbekistan. Thus, although the legal provisions contained in Decree No. 1 and 
Resolution No. 1 prevail to the extent that there is a conflict over the legal provisions contained in 
both instructions, the instructions still apply to traffic in transit from Ukraine and of Ukrainian goods 
not covered  by the 2016 gen eral and product -specific transit bans and other transit restrictions. By 
admitting that Decree No. 1 effectively abolished any requirements set out in those instructions with 
respect to Ukraine, the Russian Federation in essence confirmed that, before 1 J anuary 2016, both 
instructions imposed requirements with respect to Ukraine.  
14. Fourth, the objections of the Russian Federation fail to recognise that Ukraine 's claims 
regarding Instructions Nos. FS -NV-7/22886 and FS -AV-3/22903 are "as such. Therefore, the success 
of Ukraine 's claims regarding the 2014 transit ban and other transit restrictions does not depend on 
evidence of the application of those instructions with respect to Ukraine.  
15. For the avoidance of any doubt on this matter, and although Ukra ine is not required to show 
the application of either instruction in order to demonstrate that the measures existed at the time 
of the establishment of the Panel, Ukraine submitted Exhibit UKR -106 (BCI) together with its opening 
statement at the second sub stantive meeting. Exhibit UKR -106 (BCI) shows that, even after the 
filing of the Russian Federation 's first written submission, the Russian Federation continued to rely WT/DS512/R/Add.1  
 
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  expressly on Instruction No. FS -NV-7/22886 in order to ban traffic in transit arriving from Ukraine 
by train.  
16. Exhibit UKR -106 (BCI) was filed as evidence in direct response to the Russian Federation 's 
allegation that Instruction No. FS -NV-7/22886 does not apply and has never applied with respect to 
Ukraine. Taking into account that that allegation was made by the Russian Federation in its opening 
statement at the first substantive meeting, Ukraine may submit, according to paragraph 7 of the 
Panel 's Working Procedures, this rebuttal evidence after the filing of its first written submission  and 
after the first substantive meeting. Pursuant to paragraph 7, no good cause needs to be shown with 
respect to rebuttal evidence that is submitted after the first substantive meeting. Moreover, by filing 
Exhibit UKR -106 (BCI), Ukraine did not raise a n ew issue in these proceedings that was previously 
unknown to the Russian Federation or to the Panel. As a result, the submission of Exhibit UKR -106 
(BCI) does not conflict with paragraph 7 of the Working Procedures and does not otherwise affect 
the Russian  Federation 's due process rights in these proceedings.  
17. For these reasons, Ukraine respectfully requests the Panel to reject the Russian Federation 's 
objection with regard to Exhibit UKR -106 (BCI) and to confirm that the 2014 transit ban and other 
transit restrictions fall within the Panel 's terms of reference.  
IV. UKRAINE HAS MADE  A PRIMA FACIE  CASE THAT THE MEASU RES AT ISSUE ARE 
INCONSISTENT WITH AR TICLES V AND X OF TH E GATT 1994 AND PARA GRAPHS 
1161, 1426, 1427 AND  1428 OF THE WORKING  PARTY REPORT  
18. The Russian Federation did not present any meaningful argument or evidence in rebuttal of 
Ukraine 's claims under Articles V and X of the GATT 1994 and paragraphs 1161, 1426, 1427 and 
1428 of the Working Party Report.  
19. With regard to Article V of th e GATT 1994, the Russian Federation 's main rebuttal was that 
Ukraine suspended the operation of routes included in Map 1 of Exhibit UKR -104. Map 1 of Exhibit 
UKR-104 contains the principal road and rail routes which were used for transit of goods from Ukra ine 
to Kazakhstan and the Kyrgyz Republic prior to 2014. While certain international checkpoints at the 
border between Ukraine and the Russian Federation, which are included in Map 1 of Exhibit UKR -
104, are currently not open, Ukraine emphasizes that 10 ou t of the 17 international road checkpoints 
and four out of the six international rail checkpoints remain open. Those international checkpoints 
are currently being used for bilateral trade and, in the absence of the measures at issue, could be 
used also for  international transit covered by those measures.  
20. The only other response with regard to Article V of the GATT 1994 is the Russian Federation 's 
assertion that Ukraine has allegedly taken a number of measures. Ukraine reiterates that this case 
is not about any measures which Ukraine might have taken. The main question at issue in this 
dispute and falling within the Panel 's jurisdiction concerns the Russian Federation 's decision not to 
allow traffic in transit from Ukraine and destined for Kazakhstan, the  Kyrgyz Republic, Mongolia, 
Tajikistan, Turkmenistan and Uzbekistan to pass the border between Ukraine and the Russian 
Federation. In that regard, Ukraine also asks the Panel to be mindful of its terms of reference in this 
dispute and of Ukraine 's rights o f defence in other WTO dispute settlement proceedings.  
21. Besides the suspension of the operation of routes included in Map 1 of Exhibit UKR -104 and 
the measures allegedly taken by Ukraine, the Russian Federation has neither contested Ukraine 's 
interpreta tion or application of Article V of the GATT 1994 nor disputed any facts put forward by 
Ukraine in support of its claims.  
22. However, as several third parties addressed the meaning of Article V of the GATT 1994 in 
response to the questions raised by the Panel, Ukraine offers its own views on those questions.  
23. First, on the question of whether a violation of the freedom of transit in the first sentence of 
Article V:2 of the GATT 1994 follows necessarily from a violation of any other part of Article V o f the 
GATT 1994, including the second sentence of Article V:2, Ukraine reiterates its position that where 
a measure applies to goods transiting via the most convenient routes of passage and is found to 
violate other parts of Article V of the GATT 1994, inc luding the second sentence of Article V:2 of the 
GATT 1994, then such a measure is also inconsistent with the obligation of a WTO Member to 
guarantee the freedom of transit via the most convenient routes. In that situation, Ukraine submits 
that a claim und er the first sentence of Article V:2 of the GATT 1994 may be consequential.  WT/DS512/R/Add.1  
 
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  24. A separate question arises where a measure applies to traffic in transit passing via routes 
other than  the most convenient routes. Ukraine submits that the obligations under Ar ticle V of the 
GATT 1994 should be interpreted as applying, unless otherwise stated (such as in the first sentence 
of Article V:2 of the GATT 1994), to all traffic in transit passing through the territory of a WTO 
Member, irrespective of whether the route taken is part of the most convenient routes. In other 
words, unlike the first sentence of Article V:2 of the GATT 1994, the obligations in Articles V:3 to 
V:6 of the GATT 1994 apply to traffic in transit passing through the territory of a WTO Member 
irresp ective of the route through which such traffic moves. In the event that the Panel agrees with 
that interpretation, Ukraine submits that this should not alter the Panel 's assessment of whether 
Ukraine has made a prima facie  case with respect to each of its claims. As Ukraine explained in its 
first written submission, it has submitted arguments and evidence in order to make a prima facie  
case for each claim under different paragraphs of Article V of the GATT 1994.  
25. Second,  Ukraine submits that the purpose for which a delay or restriction on traffic in transit 
may be "necessary within the meaning Article V:3 of the GATT 1994 is that of putting traffic in transit 
under a transit procedure in order to ensure that goods move th rough the territory (and eventually 
leave the territory) as traffic in transit instead of entering the territory (in the sense of importation). 
Delays or restrictions that are not necessary for that purpose and do not involve a failure to comply 
with appli cable customs laws or regulations result in a violation of Article V:3 of the GATT 1994. 
Ukraine adds that other legitimate purposes are recognised in the exceptions clauses in the GATT 
1994. Such clauses have a distinct function and impose separate obliga tions.  
26. Ukraine also considers that, in the context of the present proceedings, it is not necessary for 
the Panel to take a position on whether, as one third party submitted, force majeure  might be a 
reason explaining why delays or restrictions unrelate d to compliance with customs laws and 
regulation might nonetheless be necessary. In any event, any finding that force majeure  precludes 
the wrongfulness of an unnecessary delay or restriction would not be based on an objective 
recognised in Article V:3 of the GATT 1994 or an affirmative defence for which the GATT 1994 
provides. It would be based on general international law.  
27. Third, Ukraine reiterates that charges, regulations or formalities in connection with transit 
must respect the MFN obligation in A rticle V:5 of the GATT 1994. Insofar as such charges, regulations 
or formalities also fall within the scope of Article V:3 of the GATT 1994, they must comply with that 
provision. Although the obligations laid down in Articles V:3 and V:5 of the GATT apply together, the 
type of obligation differs: Article V:5 sets out a discrimination obligation whereas Article V:3 prohibits 
a WTO Member from subjecting traffic in transit to delays and restrictions that are not necessary for 
the purposes recognised under tha t provision and the charges that are not expressly identified 
therein. It is thus appropriate to consider those measures falling within the scope of both obligations 
first under Article V:3.  
28. Fourth, Ukraine repeats that it does not argue that every vio lation of the second sentence of 
Article V:2 of the GATT 1994, due to a distinction based on place of origin, departure, entry/exit and 
destination, violates also Article V:5 of the GATT 1994. Rather, a successful challenge under Article 
V:5 of the GATT 19 94 requires comparing the treatment accorded and establishing that the 
treatment given modifies the conditions of competition in the marketplace to the detriment of traffic 
in transit from or to the WTO Member alleging the violation.  
29. Ukraine respectful ly asks the Panel to find that Ukraine has made a prima facie  case as regards 
its claims under Articles V and X of the GATT 1994 and paragraphs 1161, 1426, 1427 and 1428 of 
the Working Party Report, and to make the relevant recommendations.  
30. Ukraine als o requests the Panel to make findings and recommendations as regards the two 
amendment measures adopted by the Russian Federation, namely Decree No. 643 and Resolution 
No. 1292. Those measures, which fall within the Panel 's terms of reference, were not pub lished in 
accordance with paragraph 1427 of the Working Party Report. Furthermore, by making effective and 
enforcing Decree No. 643 prior to its publication, the Russian Federation violated both paragraph 
1428 of the Working Party Report and Article X:2 of  the GATT 1994.  WT/DS512/R/Add.1  
 
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  V. THE RUSSIAN FEDER ATION 'S DEFENCE UNDER ARTI CLE XXI OF THE GATT 1994 
MUST FAIL  
31. Ukraine asks the Panel to confirm that it enjoys jurisdiction in these proceedings to review the 
Russian Federation 's reliance on Article XXI of the GATT 1 994, to conclude that the Russian 
Federation has not satisfied its burden of proof under Article XXI of the GATT 1994 in order to justify 
the measures at issue and to make findings and recommendations as regards the measures at issue.  
32. Ukraine does not  contest the right of every WTO Member to take measures for the protection 
of its essential security interests. However, by acceding to the WTO, each WTO Member has accepted 
that its right to take otherwise WTO -inconsistent measures for this purpose must b e exercised in 
accordance with the requirements laid down in Article XXI of the GATT 1994. The GATT 1994 
provides for limited and conditional exceptions clauses allowing WTO Members to pursue certain 
non-trade objectives to derogate from the substantive ob ligations in the GATT 1994. In these 
proceedings, the Russian Federation has made no attempt at showing that those conditions are 
satisfied.  
A. The Panel enjoys jurisdiction to review the Russian Federation 's invocation of 
Article XXI of the GATT 1994  
33. All third parties, save one, agree with Ukraine that the GATT 1994 and the DSU confer on the 
Panel jurisdiction to interpret and review the application of Article XXI(b)(iii) of the GATT 1994 by 
the Russian Federation in these proceedings.  
34. The United States and the Russian Federation argue in essence against such jurisdiction, 
submitting that the Panel 's mandate is limited to acknowledging that the Russian Federation has 
invoked Article XXI of the GATT 1994 and concluding that it cannot make findings o n whether the 
measures at issue are consistent with the Russian Federation 's WTO obligations or formulate 
recommendations.  
35. At paragraphs 92 to 119 of its opening statement at the first substantive meeting, Ukraine set 
out the many reasons why the Panel enjoys jurisdiction. Ukraine also notes that the United States 
and the Russian Federation have mostly not responded to those a rguments as well as to the reasons 
put forward by other third parties.  
36. The argument that, whilst the Panel has jurisdiction to hear the present dispute, it may not 
make findings or formulate recommendations in this dispute is based primarily on the int erpretation 
of the phrase "which it considers as meaning that all of the conditions laid down in Article XXI(b)(iii) 
of the GATT 1994 are self -judging.  
37. Ukraine strongly objects to the position that the entirety of Article XXI(b)(iii) of the GATT 1994 
is self -judging and that therefore total deference is due to a respondent. Rather, the discretion which 
the phrase "which it considers confers on a WTO Member is limited to the question of the necessity 
of the action. Should the phrase "which it considers be read to mean that a WTO Member enjoys 
absolute discretion with regard to an action taken for the purpose of protecting essential security 
interests, there would have been no need to include in the text of Article XXI(b) the conditions laid 
down in subpa ragraphs (i) to (iii). Nor would there be any ground to review whether measures 
allegedly imposed for the protection of essential security purposes are in fact disguised restrictions 
on trade or taken for purposes recognised in other exceptions clauses in the GATT 1994. Although 
the United States and the Russian Federation insist on the need to respect the wording used in 
Article XXI, Ukraine and most other third parties ask the Panel to interpret and give effect to all of 
the wording used in that provision  and not only to the phrase "which it considers or the term 
"essential security interests.  
38. Ukraine underscores that these proceedings are by no means the first instance in which the 
question of a State 's reliance on essential security grounds is put be fore an international court or 
tribunal. The practice of other courts and tribunals shows that a phrase such as "which it considers 
and the fact that deference is due as regards the necessity of an action do not mean that judicial 
review is excluded.  WT/DS512/R/Add.1  
 
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  39. Ukraine submits that the negotiating history of Article XXI of the GATT 1994 does not support 
interpreting Article XXI in a manner that excludes the possibility of judicial review. Rather, the 
negotiating history shows that the drafters were concerned with,  on the one hand, laying down 
conditions in Article XXI that would ensure that that provision serves the specific purpose of 
protecting essential security interests and, on the other hand, avoiding that, under the guise of 
essential security, a WTO Member seeks to justify GATT -inconsistent measures for the protection of 
a purpose that, as a matter of WTO law, may not be invoked.  
40. Finally, in stressing that the multilateral trading system is concerned with trade, and not 
security, relations, the United St ates and the Russian Federation ignore the fact that, as the 
Appellate Body has recognised, the WTO Agreement, as a whole , reflects the balance struck by WTO 
Members between trade and non -trade -related concerns. In fulfilling their task, panels and the 
Appellate Body must interpret the WTO covered agreements in a manner that upholds that balance 
as reflected in the text of the WTO covered agreements.  
B. Interpretation of Article XXI(b)(iii) of the GATT 1994  
41. Assuming the Panel confirms that it enjoys ju risdiction to review the Russian Federation 's 
invocation of Article XXI(b)(iii) of the GATT 1994, it must then consider what is the appropriate order 
of analysis, the burden of proof and the standard of review to be applied.  
Ukraine submits that an objecti ve assessment of the invocation of Article XXI(b)(iii) of the GATT 
1994 entails a three -step test that is to be applied with respect to each of the specific measures at 
issue for which the Russian Federation relies on that defence. The first step is whethe r the measure 
at issue is "taken in time of war or other emergency in international relations. The second step is 
whether the measure at issue is an "action … for the protection of its essential security interests. 
The third step is whether the measure at issue is an "action which it considers necessary for the 
stated objective. All of these questions must be answered by the Russian Federation. As the R ussian 
Federation has failed to provide those answers, it cannot prevail in its defence under Article 
XXI(b)(iii) of the GATT 1994. Furthermore, it is not the task of the Panel itself to seek from Ukraine 
the answers which the Russian Federation failed to provide.  
42. Therefore, for each of these steps, the Panel is to assess whether the Russian Federation has 
satisfied its burden of proof and is to review the arguments and evidence submitted. Each step 
assists in establishing whether Article XXI(b)(iii) is  being applied in good faith for the protection of 
essential security interests and is not used in order to pursue protectionist objectives and/or to apply 
disguised restrictions on trade. Article XXI(b)(iii) should not be abused or misused for purposes fo r 
which it was not designed.  
43. Thus, a mere statement that Article XXI(b)(iii) of the GATT 1994 is invoked is insufficient. Nor 
is it enough for the Russian Federation to rely on a hypothetical question. The Russian Federation 
itself has reiterated duri ng these proceedings that the relevant elements are provided in the legal 
acts imposing the measures. No prompt and positive solution of this dispute may be found based on 
hypothetical questions bearing no connection with the specific measures at issue or the specific 
circumstances that led the Russian Federation to adopt these measures . 
44. Furthermore, the fact that the measures at issue might not economically protect the sectors 
of the WTO Member invoking the affirmative defence is not one of the three e lements of a successful 
invocation of Article XXI(b)(iii) of the GATT 1994.  
1. First step: whether the measure is "taken in time of war or other emergency in international 
relations  
45. If the measures at issue are not "taken in time of war or other emerge ncy in international 
relations, they may not be justified on the basis of Article XXI(b)(iii) of the GATT 1994. Unlike what 
is the case for paragraph (b) of Article XXI of the GATT 1994, the phrase "which it considers does 
not appear in subparagraph (iii).  WT/DS512/R/Add.1  
 
- 49 - 
 
  46. A panel must examine whether the invoking Member has shown that all of the measures at 
issue were taken in time of war or other emergency in international relations. Ukraine interprets 
Article XXI(b)(iii) of the GATT 1994 to mean there must be a serio us disruption in international 
relations constituting an emergency that is alike a war and sufficiently connected to the defendant 
WTO Member so as to result in a genuine and sufficiently serious threat to that Member 's security 
interests. Furthermore, the re must be a temporal connection between the action taken and the 
emergency in international relations.  
47. The burden falls on the invoking Member to identify and demonstrate the war or other 
emergency in international relations at the time at which the m easures at issue were taken. The 
invoking Member bears the burden of establishing both the legal and factual elements of its defence.  
48. Ukraine strongly disagrees with the Russian Federation 's position that there is no room for 
review for a panel to dete rmine whether a sovereign State is at war or not. Accepting the Russian 
Federation 's interpretation would mean that WTO Members may resort to self -help without any 
means of review. Unlike what is the case for paragraph (b) of Article XXI of the GATT 1994, the 
phrase "which it considers does not appear in any of the subparagraphs of Article XXI(b) of the GATT 
1994. If total deference would be due to the respondent, which could suffice with the statement that 
the conditions of Article XXI(b)(iii) of the GATT 1994 are satisfied without any possibility for review, 
there would have been no reason to include separate paragraphs in Article XXI and to distinguish 
between different types of security interests and circumstances that may be invoked in order to 
justify an otherwise WTO -inconsistent measure.  
2. Second step: whether the measure constitutes "action … for the protection of its essential 
security interests  
49. If the measures at issue are not designed to protect a WTO Member 's essential security 
interests, t hey may not be justified on the basis of Article XXI(b)(iii) of the GATT 1994. Thus, 
assuming that a WTO Member invoking Article XXI(b)(iii) of the GATT 1994 demonstrates that the 
measures at issue are "taken in time of war or other emergency in internatio nal relations, a panel 
must examine next whether it has been shown that the measures at issue constitute action for the 
protection of the "essential security interests of that Member.  
50. Although it is for each WTO Member to decide what are its essential security interests and 
what level of protection of those interests it pursues, a panel must interpret, pursuant to Article 3.2 
of the DSU, the phrase "for the protection of its essential security interests in accordance with the 
customary rules of interpre tation of public international law. In light of its interpretation, a panel 
must then establish whether the interests or reasons advanced by the defendant Member for 
imposing the measures at issue fall within the scope of the phrase "its essential security  interests 
for the purposes of Article XXI(b)(iii) of the GATT 1994.  
51. Under the second step of the analysis under Article XXI(b)(iii) of the GATT 1994, a panel must 
examine what content is given by the invoking Member to the concept of "essential secur ity interests 
in the context of the measures at issue. A panel must also review whether that content can 
reasonably be considered as falling within the meaning of the phrase "its essential security interests. 
If a panel decides that this is the case, the p anel must then make an objective assessment of whether 
the measures at issue are designed to protect the security interests of the invoking Member. In 
other words, a panel must be satisfied that there is a rational relationship between the measures at 
issue and the protection of the essential security interests.  
52. Where no arguments and evidence are produced, and a WTO Member invoking Article 
XXI(b)(iii) of the GATT 1994 merely states that its measures protect its essential security interests 
without any explanation, a panel cannot reach any conclusions on the merits of the defence. In those 
circumstances, a panel must find that that Member has failed to satisfy its burden of proof. The 
identification of the essential security interests must be specific en ough to allow a panel to assess 
whether there is a reasonable link or connection between the invoking Member 's decision to take 
the action and the essential security interests identified by that Member. A panel may not assume 
that such a connection exists.  WT/DS512/R/Add.1  
 
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  3. Third step: whether the measure constitutes "action which it considers necessary …  
53. Assuming that the WTO Member invoking Article XXI(b)(iii) of the GATT 1994 has shown that 
the measures at issue are "taken in time of war or other emergency in international relations and 
constitute "action … for the protection of its essential security in terests, a panel must then establish 
whether that Member plausibly could conclude that the measures at issue are necessary for 
protecting those interests.  
54. The wording of the phrase "which it considers suggests that the standard of review under 
Article XXI of the GATT 1994 cannot be the same as that with respect to the necessity test under 
Article XX of the GATT 1994. More deference must be accorded to the WTO Member taking the 
measure. The text of Article XXI indicates that the necessity of the measure is a matter for the 
consideration of the defendant WTO Member. Thus, it is for that Member to assess all the relevant 
factors, particularly the extent of the contribution to the achievement of a measure 's objective and 
its trade restrictiveness, in the lig ht of the importance of the interests or values at stake.  
55. The specific task of a panel is, as regards the third step of the analysis, to determine whether, 
based on the facts available, the invoking Member could plausibly arrive at the conclusion that the 
measures taken are necessary for protecting its essential security interests. In that regard, Ukraine 
finds support in the decision of the Arbitrators in EC – Bananas II (Ecuador) (Article 22.6 – EC). That 
task also comprises an assessment of whether a ny discretion which Article XXI(b)(iii) of the GATT 
1994 might confer on the invoking Member was exercised in good faith, including whether the 
interests of third parties were taken into account. In accordance with Article 11 of the DSU, that 
review must b e based on an objective assessment of the facts. It cannot be based entirely on the 
subjective intention of the WTO Member invoking the defence.  
C. Application of Article XXI(b)(iii) of the GATT 1994  
1. The Russian Federation has not demonstrated that the measures at issue are "taken in time 
of war or other emergency in international relations  
56. The Russian Federation has, in the present proceedings, failed to explain what are the 
circumstances causing it to impose the measures at issue. As a result, the Russian Federation failed 
to show that the measures at issue were taken in time of war or other emergency in international 
relations.  
57. At the first substantive meeting, the Russian Federation made it clear that it was neither 
required nor able to provide any reasons. Its explanation was, on the one hand, that the 
circumstances leading to the imposition of the measures at issue were publicly available and known 
to Ukraine and, on the other hand, that th e Russian Federation was not required to disclose any 
information which it considers to be contrary to its essential security interests.  
58. The Russian Federation also insisted that the information included in the legal acts imposing 
the measures at issu e shows that Decree No. 1 was adopted on the basis of the Federal Law No. 
281-FZ and due to the suspension of the application of the Free Trade Agreement within the 
Commonwealth of Independent States in respect of Ukraine (CIS FTA). The latter is, accordin g to 
the Russian Federation, suspended due to the exceptional circumstances affecting the interests and 
economic security of the Russian Federation and requiring immediate measures.  
59. In its second written submission, the Russian Federation argued that t he basis for imposing 
the measures as well as the original circumstances that led to their imposition were publicly available 
and known to Ukraine and are available on the internet. It also advanced that the measures at issue 
and Resolution No. 778 were ad opted because of internationally wrongful acts or unfriendly acts of 
certain foreign state or their bodies and officials.  
60. Those are the only facts deemed relevant by the Russian Federation to its defence in these 
proceedings and on which the Panel must  decide. Arguments and facts that were not invoked by the 
Russian Federation may not be relied upon by the Panel in order to decide on the Russian 
Federation 's defence. Moreover, the Panel may not make the case for either party or make good the 
absence of argumentation on a party 's behalf. It is also not for the Panel to second -guess the events 
to which the Russian Federation appears to refer.  WT/DS512/R/Add.1  
 
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  61. Ukraine asks the Panel to disregard the Russian Federation 's arguments.  
62. First, Ukraine submits that it is o f no consequence, in relying on Article XXI(b)(iii) of the GATT 
1994, that the basis for and circumstances leading to the imposition of certain measures are publicly 
available or known to the complainant.  
63. The Russian Federation appears to allege that it is no longer necessary for a respondent to 
produce argument and evidence in order to satisfy its burden of proof as regards an affirmative 
defence. The consequence of the Russian Federation 's position is that that burden should be placed 
on the complain ant and the Panel: it is sufficient that they carry out an internet search in order to 
establish the justification of the measures at issue. Such a position on the burden of proof lacks any 
basis in law. Furthermore, the Russian Federation 's position risks  altering altogether the character 
of provisions such as Articles XX and XXI of the GATT 1994. In fact, the burden would fall on the 
complainant to show that it did not know what caused the defendant to impose the measures at 
issue.  
64. Second, the Russian  Federation has offered no rebuttal of Ukraine 's position that, in 
accordance with well -established case -law, the sole fact that a measure refers to an objective and, 
a fortiori , a law such as Federal Law No. 281 -FZ is not, in and of itself, sufficient to establish that a 
measure is designed to achieve that objective. A panel would not make an objective assessment of 
the matter before it if, in reviewing whether a defendant has shown that the measures are taken in 
time of war or other emergency in internati onal relations, it would verify only the legal basis under 
national law for those measures.  
65. Third, the Russian Federation failed to explain why the unilateral suspension of the application 
of the CIS FTA with respect to Ukraine is a circumstance that i s relevant under Article XXI(b)(iii) of 
the GATT 1994. It is not for Ukraine to comment on why the Russian Federation has neglected to 
produce any argument on this question. Ukraine nonetheless notes that a closer look at the texts of 
Resolutions Nos. 842 and 959 and of Decree No. 1 shows that the suspension of the CIS FTA is 
expressly tied to the entry into force of the EU -Ukraine Association Agreement.  
66. The objective evidence available before the Panel shows that what is known is that the Russian 
Feder ation adopted Decree No. 1 in light of its unilateral suspension of the CIS FTA with respect to 
Ukraine. In turn, that suspension – as are many other measures that apply as of 1 January 2016 – 
is linked to the application of the EU -Ukraine Association Agre ement. As a result, should the Panel 
uphold the Russian Federation 's defence with regard to the 2016 general and product -specific transit 
bans and other transit restrictions, it would mean that, in essence, a WTO Member may invoke 
Article XXI of the GATT 1 994 in order to justify WTO -inconsistent measures taken in response to 
other WTO Members ' exercise of the right under Article XXIV of the GATT 1994.  
67. Fourth, the Russian Federation 's attempt to justify the measures at issue by pretending they 
are a resp onse to Ukraine 's economic sanctions has no factual basis. The 2014 transit ban and other 
transit restrictions and the 2016 general transit bans and other transit restrictions are measures 
taken before  Ukraine allegedly adopted any of the measures to which  the Russian Federation refers 
in its second written submission. Furthermore, when looking at the text of Resolutions Nos. 778 and 
842, it becomes clear that the application of the import ban to goods from Ukraine was expressly 
linked to when paragraph 1 o f Resolution No. 959 became effective and not to any economic 
sanctions applied by Ukraine. In turn, the application of the import duties in Resolution No. 959 
depended entirely on whether or not Ukraine applies the EU -Ukraine Association Agreement.  
68. Ukraine therefore respectfully requests that the Panel concludes that the Russian Federation 
has not shown that the measures at issue are "taken in time of war or other emergency in 
international relations. As a result, Russian Federation 's defence under Art icle XXI(b)(iii) of the GATT 
1994 fails.  
2. The Russian Federation has not shown that the measures at issue constitute "action … for the 
protection of its essential security interests  
69. The Russian Federation has failed to identify what are the essential security interests to be 
protected by each of the measures at issue. Nor has it provided evidence and arguments explaining 
the connection between the measures at issue and the essential security interests which they are 
allegedly designed to prot ect. WT/DS512/R/Add.1  
 
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  70. According to Ukraine, the fact that the text of certain measures at issue refers to Federal Law 
No. 281 -FZ is an insufficient basis for the Panel to conclude that the measures are designed for the 
protection of the Russian Federation 's essentials security interests. Nor can that conclusion be based 
on solely the reference in those measures to the Russian Federation 's decision to suspend the 
application of the CIS FTA with respect to Ukraine.  
71. The Russian Federation continues to refuse offering an explanation of the essential security 
interests that are at issue in these proceedings on the ground that it is not required to disclose such 
information. It relies on Paragraph 1 of the 1982 Decision concerning Article XXI of the General 
Agreement in o rder to argue that the disclosure of information regarding the measures taken under 
Article XXI of the GATT is subject to the exceptions of Article XXI(a) of the GATT 1994.  
72. Ukraine submits that Article XXI(a) of the GATT 1994 addresses a situation dis tinct from that 
covered under Article XXI(b) of the GATT 1994. Indeed, Article XXI(a) may be invoked by a WTO 
Member in order to justify not complying with information and transparency obligations found in the 
GATT 1994. In these proceedings, the Russian F ederation has not invoked Article XXI(a) of the GATT 
1994 in order to justify measures at issue that are inconsistent with its obligations under Articles 
X:1 and X:2 of the GATT 1994 and paragraphs 1426, 1427 and 1428 of the Working Party Report.  
73. According to Ukraine, Article XXI(a) of the GATT 1994 may not be used in order to evade a 
WTO Member 's burden of proof in relying, in the context of dispute settlement proceedings, on an 
affirmative defence. An overly broad interpretation of Article XXI(a) of the GATT 1994 would render 
subparagraphs (i) to (iii) ineffective. Thus, as the Russian Federation has failed to provide certain 
information on the basis of Article XXI(a) of the GATT 1994, it must accept that, as a possible 
consequence, it will be found n ot to have met its burden of proof under Article XXI(b) of the GATT 
1994.  
74. If the Panel finds that the measures at issue are taken in time of war or other emergency in 
international relations, Ukraine respectfully requests that the Panel rejects the Rus sian Federation 's 
reliance on Article XXI(b) of the GATT 1994 for failure to identify the essential security interests 
pursued by the measures at issue and to demonstrate that the measures at issue are designed to 
protect those interests.  
3. The Russian Fe deration has failed to show that the measures at issue constitute "action which 
it considers necessary …  
75. If the Panel would find that the measures at issue are taken in time of war or other emergency 
in international relations and are designed to prote ct the essential security interests of the Russian 
Federation, Ukraine respectfully requests that the Panel rejects the Russian Federation 's reliance on 
Article XXI(b) of the GATT 1994 for failure to provide an explanation of how the Russian Federation 
could plausibly arrive at the conclusion that the measures taken are necessary for protecting its 
essential security interests.  
D. Conclusion  
76. The Russian Federation has failed to show, as regards each and every measure at issue, what 
is the emergency in i nternational relations that caused the Russian Federation to adopt all of the 
measures at issue, what are the essential security interests which the Russian Federation is seeking 
to protect through these measures, and whether the Russian Federation plausib ly could conclude 
that the measures at issue are necessary for protecting these interests. As a result, the Russian 
Federation has not satisfied its burden of proof under Article XXI(b)(iii) of the GATT 1994.  
 WT/DS512/R/Add.1  
 
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  ANNEX C -3 
FIRST E XECUTIVE S UMMARY OF THE ARGUME NTS OF THE RUSSIAN FEDERATI ON 
A. INTRODUCTION  
1. The Russian Federation expresses its deepest concerns regarding Ukraine 's decision to 
challenge the fundamental rights of the WTO Members related to the protection of their essential 
security interests despite Ukraine 's full awareness of the original circumstances that led to the 
imposition of the measures at issue. These attempts to disguise a politically motivated onset as a 
regular trade dispute presents a deliberate threa t to the multilateral trading system and undermines 
the role of the WTO as an international trade forum that has long been guarded by other WTO 
members.  
2. The Russian Federation would like to stress the importance and sensitivity of the issues related 
to protection of national security, not only for the Russian Federation, but also for any other WTO 
Member. The outcome of this dispute will have far -reaching consequences for the Membership and 
the entire multilateral trading system, requiring a great measu re of care when approaching the 
issues raised in this dispute in relation to Article XXI of the GATT.  
B. PRELIMINARY ISSUES.  
3. In Russia 's view, Ukraine failed to meet the minimum standards applied to a request for the 
establishment of a panel1, as it failed to establish clearly the grounds upon which it found its case 
and the nexus between the elements (measures) within each group of the challenged measures. In 
particular, Ukraine in its Panel Request identified the specific measures at issue b y dividing them 
into two "groups of measures "2 and failed to clarify what particular elements (measures) at issue 
constitute the first or the second group of measures and how these elements operate together 
(collectively)3, what is a common rational behind  them as well as what particular treaty provision is 
violated by each of the elements challenged. Ukraine failed to clarify this even in its First Written 
Submission, rearranging the challenged measure into four new groups.  
4. In a similar vein, Ukraine 's First Written Submission presented the challenged measures in a 
completely different manner setting them out as four individual measures that are not connected 
and do not operate together.  
5. In this regard, the Russian Federation as a respondent is placed  in an uncertain situation in 
presenting its defense because it has to guess what the panel would identify as the measures at 
issue on the basis of the panel`s interpretation of the substance of the alleged violation.4 
6. In the Panel Request Ukraine inten ds to challenge de facto application of Decree No. 1 to the 
transit to the countries in Central and Eastern Asia and Caucasus. Taking into account the number 
of countries that can be considered as part of these regions, as well as the second element in 
combination with the third element identified by Ukraine in its Panel Request as a measure at issue 
in the second group of measures, Russia  cannot be expected to discern whether the measure in 
question is challenged as such or as applied, as written or unwrit ten, and what the geographic scope 
of the application of the challenged measure is. Ukraine also failed to specify whether it challenges 
a written or an unwritten measure. The measure in question constitutes an imprecise open -ended 
list that can be expande d by the claimant at any moment. Therefore, in addition to the fact that 
Ukraine failed to identify how the three elements set out in the "Second Group of Measures " in its 
Panel Request or in its First Written Submission operate together as a group, the me asures identified 
by Ukraine as the second and the third elements in the Section pertaining to the "Second Group of 
Measures in the Panel Request cannot be reasonably expected to be the measures against which 
Ukraine launched its challenge in its First Wri tten Submission as the measures allegedly applied to 
transit destined to Mongolia, Tajikistan, Turkmenistan and Uzbekistan. "[S]uch an 'open ended ' list 
                                                
1 Appellate Body Report,  EC – Bananas III , para. 142.; Appellate Body Report , Brazil – Desiccated 
Coconut , p. 22; Appellate Body Report, Korea – Dairy , para. 127.  
2 WT/DS512/3, p. 1.  
3 See Panel Report and Appellate Body Report, China – Raw Materials.  
4 Appellate Body Report, EC – Selected Customs Matters, para. 136.  
 WT/DS512/R/Add.1  
 
- 54 - 
 
  would not contribute to the 'security and predictability ' of the WTO dispute settlement system as 
required by Article 3.2 of the DSU. "5 
7. Thus, Ukraine`s Panel Request, in general and in respect of separate elements (measures), 
fails to satisfy the requirement of sufficient clarity in the identification of the specific measures at 
issue set forth in Articl e 6.2 of the DSU; it fails to establish the nexus between the elements 
(measures) within each group of the measures claimed; it fails to give the opportunity to the Russian 
Federation to defend itself by providing claims that change their form and content from the Panel 
Request to its First Written Submission; Ukraine fails to act in a predictable way by challenging the 
"open ended " list of the measures at issue; it fails to identify "de facto application of the 2016 general 
and products -specific transit ba ns in Decree No.1, as amended, to transit destined for Mongolia, 
Tajikistan, Turkmenistan and Uzbekistan " in a manner that satisfies the requirements of Article 6.2 
of the DSU, as Ukraine failed to indicate the nature of the measure and the gist of what is at issue.6 
Deciding otherwise will erode the disciplines of Article 6.2 of the DSU allowing Members, whe n 
requesting the establishment of a panel, to claim any abstract measure that could be applied by 
another Member, thus depriving the respondent of any adequate notice of the challenge brought 
against it.  
C. "2014 TRANSIT BAN AND OTHER TRANSIT RESTRICTIONS ". 
8. The "2014 transit ban and other transit restrictions ", as challenged by Ukraine, were 
introduced by the Letters of Rosselkhoznadzor No. FS -NV-7/22886 and FS -AS-3/22903 of 21 
November 2014 as amended.7 
9. Firstly, we would like to note that the Letter (Instruction) of the Rosselkhoznadzor  
No. FS -AS-7/22903 of 21 November 2014 does not exist. Taking into account the possibility of a 
typographical error in the Panel Request, the Russian Federation would presume that Ukraine 
actually implied in this case t he Letter (Instruction) No. FS -AS-3/22903. Otherwise, we would like 
to request the Panel to disregard any parts in Ukraine 's First Written Submission that refer to No. 
FS-AS-3/22903 since this document is not covered by the Request for Consultations and th e Panel 
Request and thus falls outside the scope of the Panel 's Terms of Reference.  
10. Secondly, the Russian Federation draws the Panel 's attention to a general rule established in 
the WTO jurisprudence, according to which the measure covered by a panel`s  terms of reference 
must be a measure in existence at the time of the establishment of the panel.8 
11. In accordance with the mentioned Letters of Rosselkhonadzor the transit of goods included in 
the list set out by the Resolution of the Government of the Russian Federation of 7 August 2014 
No.778 (hereinafter Resolution 778) is only allowed through the designated checkpoints situated on 
the State border of the Russian Federation. Resolution 778 contains a list of particular goods 
originating from particula r countries (also listed in the Resolution) that adopted a decision to 
introduce and apply economic sanctions in respect of legal and natural persons of the Russian 
Federation as well as countries that have joined such a decision.  
12. When the Letters of R osselkhoznadzor in question were adopted, Ukraine was not included in 
the list of the countries contained in Resolution 778. Therefore, the measures contained in the said 
Letters could not and were not applied to the goods originating from Ukraine.  
13. On 1 January 2016 Ukraine was added to the list of countries set out in Resolution 778, and 
Decree No. 1 and Resolution No. 1 were adopted, allowing the transit of goods from Ukraine only 
through the checkpoint situated on the state border of the Russian Fede ration inside its Russia -
Belarus sector. The measures adopted by the Government of the Russian Federation override the 
measures taken by Rosselkhoznadzor. As a result, the measures contained in the Letters of 
Rosselkhoznadzor have never been applied to the  transit of goods from Ukraine.  
14. The Russian Federation notes that no evidence was provided by Ukraine in support of the 
continuing application of the Letters of Rosselkhoznadzor in respect of Ukraine, not to mention 
evidence showing that the transit b an was introduced by these Letters.  In this regard, the Russian 
Federation contests the credibility of the complainant 's allegations that the Letter No. FS -NV-
7/22886 applies in respect of  Ukraine. Thus, the Russian Federation states that the measure at 
issue does not exist.  
                                                
5 Panel Report, China – Raw Materials , paras. 11 -13. 
6 Appellate Body Report, US – Continued Zeroing , para. 168 -169. 
7 First Written Submission of Ukraine, para. 55.  
8 Appellate Body Report, EC – Chicken Cuts , para. 1 56. WT/DS512/R/Add.1  
 
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  15. There are no measures that "prolong, replace, amend, implement, extend or apply transit 
prohibition " of goods subject to veterinary and phytosanitary surveillance through the checkpoints 
of Belarus introduced since 30 November 201 4, as well as there are no measures regarding issuance 
of the transit permits, as alleged by Ukraine. Moreover, Ukraine has failed to identify the source of 
this prohibition, which, according to the Appellate Body in US – Gambling , deprives  the responding  
party of a possibility to prepare adequately its defense.9 
16. Thus, transit prohibition and other transit restrictions of 2014, as challenged by Ukraine, are 
outside the Panel`s Terms of Reference as they did not exist at the time of the establishment of  the 
Panel and there is no legal instrument enacted pr ior to, on or after the date of  the establishment of 
the Panel that extends the term  of  the measures identified in the Panel Request. A non -existing 
measure cannot have any benefits nullification or i mpairment effect under the covered 
agreements.10 
17. If the Panel considers that these measures do exist and are within the Panel 's terms of 
reference, the Russian Federation would like avail itself of the provisions of GATT Article XXI(b)(iii).  
D. DE FACT O APPLICATION OF THE 2016 GENERAL AND PRODUCT -SPECIFIC TRANSIT 
BANS IN DECREE No. 1, AS AMENDED, TO TRAFFIC IN TRANSIT DESTINED FOR MONGOLIA, 
TAJIKISTAN, TURKMENISTAN AND UZBEKISTAN.  
18. In the light of the facts presented by Russia, "the de facto applicat ion of the 2016 general and 
products -specific transit bans in Decree No.1, as amended, to traffic in transit destined for Mongolia, 
Tajikistan, Turkmenistan and Uzbekistan " does not exist as Ukraine failed to prove the opposite.  
(i) Ukraine failed to substantiate its "as such " claims in respect of "de facto application "  
19. Ukraine is wrong in asserting that the "de facto application " of the 2016 general and product -
specifi c transit bans in Decree No. 1 constitutes a separate claim and is inconsistent with Articles 
V:2, V:3, V:4, V:5, X:1, X:2, X:3 ( а) of the GATT 1994 as well as paragraph 2 of Part I of the 
Accession Protocol of the Russian Federation.  
20. As the Appellate  Body noted in US- Certain Anti -Dumping Methodologies (China)  and 
Argentina – Import Measures , the specific measure at issue, whether it is written or unwritten, and 
how it is described, characterized, and challenged by a complainant, will inform the kind of evidence 
a complainant is required to submit and the elements that it must prove in order to establish the 
existence of the measure challenged.11 
21. In its First Written Submission Ukraine referred to the following features of the "de facto 
application ": 1) unwritten character of the measure; 2) the challenged measure is neither comprised 
of individual instances of application of a measure, nor constitutes a rule or norm of general and 
prospective application, but, instead, it shares certain attributes of both; 3) the measure is 
challenged "as such ". 
22. This inventive approach, in particular, the position that the measure at issue is challenged by 
Ukraine as "a measure sharing certain attributes of both" is based on a highly selective, incoherent 
and misquoted use of Appellate Body's jurisprudence.  
23. Contrary to the elaboration by the Appellate Body on the notion  of "as such " claims in US – 
Oil Country Tubular Goods Sunset Reviews , Ukraine failed to provide evidence showing that the 
challenged measure affects existing trade and also the security and pre dictability needed to conduct 
future trade.12 Contrary to the Appellate Body 's pronouncements in previous disputes,13 Ukraine 
failed to provide  any evidence demonstrating the general and prospective application of the 
challenged measure. Similarly, Ukraine  failed to bring "as such " claim independently, so it would not 
share the attributes of application of the challenged provisions in specific instances.  
24. Ukraine also claims that "de-facto application of the 2016 general and product -specific transit 
bans" is an unwritten measure. Contrary to the high standard for challenging unwritten measures 
                                                
9 Appellate Body Report, US – Gambling , para. 125  
10 Appellate Body Report, US – Upland Cotton , para. 263  
11 Appellate Body Report, US- Certain Anti -Dumping Methodologies (China) , para. 5.123 (referring to 
Appellate Body Reports, Argentina – Import Measures, paras. 5.108 and 5.110)  
12 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 82.  
13 Appellate Body Report, US- Certain Anti -Dumping Methodologies (Chi na) para. 5.127; Appellate Body 
Report, US – 1916 Act , paras. 60 – 61; Appellate Body Report, US – Zeroing , paras. 231 – 232. 
 WT/DS512/R/Add.1  
 
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  set out by the  Appellate Body in US – Zeroing ,14 Ukraine failed to demonstrate that: the alleged 
"rule or norm " is attributable to the  respondent; its precise content; and that it has general and 
prospective application.  
25. In this regard given the unwritten form of a measure called "the de facto application of the 
2016 general and product -specific transit bans in Decree No.1, as amended, to traffic in transit 
destined for Mongolia, Tajikistan, Turkmenistan and Uzbekistan " challenged by Ukraine, the latter 
failed to formulate the content of this measure and the claims in respect of this measure clearly as 
well as to demonstrate the  general and prospective15 application of this measure. Thus, such 
measure cannot be successfully challenged "as such ", and cannot be found inconsistent with the 
Russian Federation`s obligations under the covered agreements.  
 (ii) "De facto Application " does not exist  
26. Furthermore, the Russian Federation disputes the existence and operation of the mentioned 
measure, as Ukraine did not provide any credible evidence in support of its "as such " challenge.  
27. Due to the unwritten character of the measure as  well as the absence of any evidence of its 
general and prospective application, the Panel should be very careful in assessing the claims 
purported by Ukraine, in particular the evidence describing the content of the measure and 
demonstrating its alleged a ttribution to the Russian Federation.  
28. The unwritten character of the measure requires the Panel to consider the appropriate 
relevance, credibility, weight and probative value of the evidence, while exercising caution in its 
assessment of the facts of the case.16 
29. The Russian Federation believes that the evidence provided by Ukraine regarding the 
operation of the measure at issue has limited value and cannot be given any evidentiary weight.  
30. All the evidence presented by Ukraine in order to prove the existence of "de facto application 
of the ban " is presented in only one exhibit. This evidence is limited in time, in terms of the cases 
identified, and the goods ' coverage. Thus, even if one pres umed that during the two weeks covered 
by the exhibit there were some occasional problems, this is not enough to assert the existence of 
the measure as it is formulated by Ukraine. Other evidence submitted on this issue also cannot be 
relied upon as it was  presented by interested Ukrainian parties and the Panel should exercise great 
caution in giving evidentiary weight to such information.  
31. Further, Ukraine attributes the application of the measure to customs and other authorities of 
the Russian Federati on and claims that decisions to refuse transit through the Russian territory to 
the territory of Mongolia, Tajikistan, Turkmenistan and Uzbekistan from Ukraine are acts of the 
organs of a state.17 However, Ukraine does not provide any evidence in support o f sufficient 
government involvement, in any case sufficient to sustain the challenge against these measures.  
32. Furthermore,  the data provided by the Federal Customs Service of the Russian Federation 
clearly demonstrates that transit from Ukraine throug h the Russian territory to Mongolia, Tajikistan, 
Turkmenistan and Uzbekistan continues and was not suspended either in 2016  or in 2017.  
33. Thus the evidence presented shows that the alleged unwritten measure attributable to Russia 
does not exist.  
34. However, should the Panel find that such measure exists, the Russian Federation would like 
avail itself of the provisions of GATT Article XXI(b)(iii).   
E. ARTICLE XXI OF THE GATT.   
35. In respect  of the measures (groups of measures) challenged by Ukraine in t his dispute, the 
Russian Federation would like to state that these measures and the legal acts that contain such 
measures were introduced by the Russian Federation in time of  emergency in international relations 
and such measures are considered by the Rus sian Federation as actions necessary for the protection 
of essential security interests of the Russian Federation  taken in time of emergency in international 
relations, as provided for in the GATT Article XXI .  
                                                
14 Appellate Body Report, US – Zeroing , paras. 196 – 198. 
15 Appellate Body Report, US – Zeroing, paras. 231 – 232. 
16 Panel Report, Argentina – Import Measures , para. 6.115.  
17 First Written Submission of Ukraine, para. 146.  WT/DS512/R/Add.1  
 
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  36. The basis for the imposition of such meas ures as well as the original circumstances that led 
to the imposition of such measures were publicly available and known to Ukraine. The wording of 
the acts implementing the measures in question challenged by Ukraine is also unambiguous, 
explicitly providi ng that the actions were taken for the purpose of protection of national security of 
the Russian Federation. The underlying act is the Federal Law of 30 December 2006 No. 281 -FZ "On 
Special Economic Measures ". In accordance with this Federal Law the Presid ent of the Russian 
Federation adopts special economic measures, in particular, when circumstances require immediate 
reaction to an internationally wrongful act or to an unfriendly act of a foreign state or its bodies and 
officials, when such act poses a th reat to the interests and security of the Russian Federation and/or 
violates the rights and freedoms of its citizens.  
37. In the absence of any panel`s or Appellate Body rulings on the interpretation and/or 
application of the GATT Article XXI, the Russian Federation would like to state the following.  
38. Article XXI of the GATT represents an all -embracing exception, established by its mandatory 
chapeau language "nothing  in this Agreement shall be construed […] ". Should one examine the 
background of the GATT  Article XXI in the historic perspective in order to establish  its object and 
purpose, the following is of relevance to the present case.  
39. In 1949, when addressing restrictions on export to Czechoslovakia, it stated that "every 
country must be the judge  in the last resort on questions relating to its own security ".18 
40. In 1961, Ghana justified its boycott of Portuguese goods on the basis of the provisions of 
Article XXI: (b) (iii), noting that "each Contracting Party was the sole judge of what was necessary 
in its essential security interest. There could therefore be no objection to Ghana regarding the 
boycott of goods as justified by security interests ".19 
41. In 1982 the EEC justified its measures against imports from Argentina by stating that "every 
Contracting Party was – in the last resort – the judge of its exercise  of these rights ", meaning rights 
under Article XXI. As was claimed by the EEC, the measures taken constituted a general exception, 
constitute its inherent right and did not require "neither notification, justification nor approval, 
procedure confirmed by thirty five -years of implementation of the General Agreement ".20 
42. The United States at the same time noted that "the General Agreement left to each Contracting 
Party the judgment as to what it considered to be necessary to protect its security interests . The 
Contracting Party had no power to question that judgment [] Forcing GATT […] to play a role for 
which it was never intended, could seriously undermine its utility, benefit and promise for all 
contracting parties ".21 
43. In 1985 the United States just ified its restrictions on imports of all goods and services of 
Nicaraguan origin and all US exports to Nicaragua on the basis of Article XXI. The US Government 
stated that the exception left it to each contracting party to judge what action it considered n ecessary 
for the protection of its own essential security interests.22 Furthermore, the United States argued 
that GATT`s effectiveness in addressing trade issues would only be weakened if it became a forum 
for debating political and security issues . 
44. In 1991 the EC, Australia, Austria, Canada, Japan, New Zealand, Norway, Sweden, 
Switzerland and the United States adopted certain restrictive measures (economic sanctions) against 
Yugoslavia, including suspension of trade concessions granted to Yugoslavia un der bilateral 
cooperation agreement with the EC. The EC justified its measures with a reference to its essential 
security interests  and GATT Article XXI.23 
45. There are many reasons why Article XXI of the GATT was drafted the way we see it today as 
there are many reasons why this particular Article of the GATT was never subject to the 
interpretation by the Membership, even though there have been numerous instances throughout 
GATT/WTO history when measures necessary for protection of national security were taken by 
                                                
18 Summary Record of the Meeting, United States – Restrictions on Exports to Czechoslovakia, 
GATT/CP.3/SR.22, Corr. 1.  
19 Summary Record of the Sess ion, SR.19/12, p. 196.  
20 Minutes of Meeting of Council, Trade Restrictions Affecting Argentina Applied for Non -Economic 
Reasons, C/M/157, p. 10.   
21 Minutes of Meeting of Council, Trade Restrictions Affecting Argentina Applied for Non -Economic 
Reasons, C /M/157, p. 8.  
22 Panel Report, United States – Trade Measures Affecting Nicaragua ,  para. 4.6, L/6053.  
23 Communication from the Permanent Mission of the Socialist Federal Republic of Yugoslavia, EEC – 
Trade Measures Taken for Non -Economic Reasons , DS27/2,  dated 10 February 1992.  WT/DS512/R/Add.1  
 
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  Members, both with and without invocation of Article XXI of the GATT or similar provisions of other 
multilateral trade agreements.  
46. The national security of a State is a multifaceted matter, covering all issues pertaining to 
functioning of a St ate, ensuring the well -being of its population. Determining the exact elements of 
national security of a State are within the sole discretion of that State. Those elements might vary 
from one State to another. For some states climate change will not be par t of national security 
strategy, while for others it will be the main factor determining the nation 's existence; states can 
have very diverse views on exhaustible natural resources or public health as areas falling within the 
ambit of their national securi ty.  
47. The Russian Federation is of the view that Article XXI (a) and (b) of the GATT is of a self -
judging nature. Each of the WTO Members individually and without any external involvement 
determines what its essential security interests are and how to p rotect them. Other reading of this 
Article will result in interference in internal and external affairs of a sovereign state.  
48. The outcome of this dispute will have far reaching consequences for the Membership and the 
entire multilateral trading system. Throughout the existence of the GATT/WTO system its Members 
protected by the provisions of Article XXI of the GATT have been adop ting and maintaining measures 
not only aimed at protection of their national security individually but also those required to protect 
peace and security in the world, including exports control and non -proliferation commitments. The 
change in balance of rig hts and obligations of the Members under Article XXI as a consequence of 
its  interpretation, even the slightest and the most reserved one, may change the level of legal 
protection of such measures with respective negative consequences for their WTO legali ty. Such 
risks are high and should be avoided.  
49. Any examination of the wording contained in the GATT Article XXI (b)(iii) must be limited to  
a simple conclusion: determination of an action that is necessary for the protection of a Member 's 
essential s ecurity interests and determination of such Member`s  essential security interests is at 
the sole discretion of that Member and nothing shall prevent that Member from taking any such 
actions in such form, with such coverage and for such duration as it cons iders necessary.  
50. In Ukraine 's view, given the fact that it claims that measures taken by the Russian Federation 
are inconsistent with certain provisions of the WTO Agreement, such provisions should have 
prevented the Russian Federation from taking the  measures challenged by Ukraine. However, this 
is contrary to what is provided for in the GATT Article XXI, i.e. "nothing in this Agreement shall be 
construed to prevent any contracting party from taking any action which it considers necessary for 
the prot ection of its essential security interest taken in time of war or other emergency in 
international relations ". Any ruling sustaining Ukraine`s claims would in itself be a prevention of a 
Member from taking such actions and, consequently, inconsistent w ith Article XXI of the GATT and  
Article 3.2 of the DSU providing that recommendations and rulings of the DSB cannot add to or 
diminish the rights and obligations provided in the covered agreements.  
51. In accordance with the preamble of Decree No.1 that is tit led "On the Measures Ensuring the 
Economic Security and National Interests of the Russian Federation in the course of the International 
Transit from the territory of Ukraine to the territory of Republic of Kazakhstan or Republic of 
Kirgizstan through the t erritory of the Russian Federation ", the Decree was adopted on the basis of 
the Federal Law No.281 -FZ and due to the suspension of the application of the Free Trade Agreement 
within the Commonwealth of Independent States in respect of Ukraine (CIS FTA).  
52. The CIS FTA was suspended in accordance with the Decree of the President of the Russian 
Federation of 16 December 2015 No.628. The preamble of the latter Decree establishes that this 
measure is taken due to the exceptional circumstances affecting the int erests and economic security 
of the Russian Federation that require immediate measures.  
53. Similarly, the Decree of the President of the Russian Federation of 6 August 2014 No.560 was 
adopted for the purpose of protection of national interests of the Russ ian Federation and in 
accordance with the Federal Law No.281 -FZ and Federal Law of 28 December 2010 No.390 -FZ "On 
Security ", as provided for in this Decree.  
54. The Federal Law No/390 -FZ "On Security " as set out in Article 1 thereof defines the 
fundamental principles and content of the activities on ensuring the security of the State, public 
security, environmental security, personal security and other types of security provided for in the 
legislation of the Russian Federation, i.e., the national security of the Russian Federation.  WT/DS512/R/Add.1  
 
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  55. Implementing Resolutions of the Government of the Russian Federation adopted in pursuance 
of the Presidential Decrees at issue have the same scope and underlying grounds,  as evident from 
the text of each and every Resolution.  
56. Therefore, these acts, both on their face and in substance, establish that the actions set out 
therein and the implementing measures are taken for the purpose of, and are necessary for, the 
protec tion of Russia 's essential security interests taken in the time of war or other emergency in 
international relations.  
57. The Russian Federation believes that, for the purposes of the Panel 's consideration of the 
arguments presented by the parties in rela tion to Article XXI of the GATT, it is highly relevant and 
important to keep in mind subparagraph (a) in Article XXI of the GATT.  
58. Implying that the Russian Federation is required to provide any information additional to that 
it has already disclosed in  respect of the measures challenged in this dispute would be inconsistent 
with the provisions of Article XXI(a) of the GATT, as nothing in that Agreement shall be construed 
to require a Member to furnish any information the disclosure of which it considers  contrary to its 
essential security interests. The Russian Federation believes that disclosure of any such additional 
information would be contrary to Russia 's essential security interests. This is confirmed by the text 
of the Decision Concerning Article X XI of the General Agreement of 30 November 1982 that creates 
a link between the provisions of Article XXI(a) and (b).  
59. While Russia never asserted that the Panel in this dispute was established with the specific 
terms of reference other than those provi ded in accordance with Article 6.2 of the DSU, it has made 
it clear that this does not mean that the Panel has jurisdiction to evaluate the measures taken with 
reference to Article XXI of the GATT. Neither the Panel nor the WTO has jurisdiction over the ma tters 
related to the measures necessary for the protection of Member`s national security interests. This 
is explicitly reflected in the wording of Article XXI of the GATT, leaving the necessity, the form, 
design and the structure of such measures within th e sole discretion of the Member invoking the 
Article.  
60. The WTO, being a trade organization, does not deal with, and has no competence over, the 
issues that relate to politics, national security or international peace and security. Therefore, the 
WTO is  not in a position to determine what essential security interests of a Member are, what actions 
are necessary for protection of such essential security interests, disclosure of what information may 
be contrary to the essential security interests of a Membe r, what constitutes an emergency in 
international relations, and whether such emergency exists in a particular case. All of these issues 
go beyond the scope of trade and economic relations among Members established in Article II:1 of 
the Marrakesh Agreemen t establishing the World Trade Organization. Consequently, all of these 
issues are outside the scope of the WTO.  
F. CONCLUSION.  
61. Therefore, we request the Panel:  
(1) to evaluate the defects of the complainant 's Panel Request and the unlawful attempts of  
Ukraine to cure those defects in its First Written Submission that prevent Ukraine from meeting the  
requirements of Article 6.2 of the DSU.  
(2)  to establish, in particular, that "2014 transit ban and other transit restrictions " allegedly 
imposed by the  Letters of Rosselkhoznadzor and de facto application of "2016 general and product 
specific transit bans in Decree No.1, as amended, to traffic in transit destined for Mongolia, 
Tajikistan, Turkmenistan and Uzbekistan ", did not exist as at the date of the Panel Request.  
(3) with respect to the measures in respect of which Article XXI of the GATT was invoked to limit 
Panel 's findings to the recognition of the fact of such invocation without engaging in any further 
exercise, given that this panel lacks jurisd iction to evaluate measures taken with a reference to 
Article XXI of the GATT.  
 
 
 WT/DS512/R/Add.1  
 
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ANNEX C -4 
SECOND E XECUTIVE SUMMARY OF THE ARGUMENTS OF THE RUSSIAN FEDERATI ON 
A. DEFECTS IN UKRAINE 'S PANEL REQUEST  
1. Ukraine had failed to meet the minimum standards applied to a request for the establishment 
of a panel. In order to determine whether a panel request is su fficiently precise to comply with Article 
6.2 of the DSU, a panel must scrutinize the language used in the panel request.1 
2. The Appellate Body has explained that, in order "to present the problem clearly ", a panel 
request must "plainly connect the challe nged measure(s) with the provision(s) of the covered 
agreements claimed to have been infringed " and "only by such connection between the measure(s) 
and the relevant provision(s) can a respondent 'know what case it has to answer and begin preparing 
its defe nse'"2, in other words "which 'problem ' is caused by which measure or group of measures ".3 
3. It is evident from the Panel Request in this dispute that "each group of measures " set out 
therein is alleged to be WTO inconsistent, but not the distinct measure s (elements) forming such 
group. The legal basis for the complaint as it is set out in the Panel Request is provided only in 
respect of "each of the groups " of measures set out in the Panel Request (the first group of measures 
in Section II and the second group of measures in Section III).  
4. If Ukraine intended to challenge each particular element of each of the groups identified in 
the Panel Request, in addition to identification of such elements as "measures at issue ", it should 
have specified which con crete provision(s) is (are) allegedly violated by "each of the measures at 
issue", not by "each group of measures ". 
5. The issue of "grouping " of the challenged measures is not a problem merely with the structure 
of the Panel Request or that of the subsequent submissions of Ukraine. This is a matter that affects 
the Panel 's terms of reference. Since defects of Ukraine 's Panel Request "cannot be 'cured ' in the 
subsequent submissions "4, they prevent Ukraine from challenging the measures as they are 
described in its First Written Submission. The opposite will prejudice the ability of the Russian 
Federation to defend itself as Ukraine 's Panel Request  does not meet the requirements under Article 
6.2 of the DSU.  
6. The choice of the "structure " in combination with the existent WTO jurisprudence requires the 
Complainant to show what particular elements comprise each group of measures, what particular 
treaty provision is violated by each of the elements challenged, and how these elements operate 
together.  
7. In its First Written Submission Ukraine challenged four distinct measures, shifting its claims 
from the two groups of measures and their legal basis a s they were formulated in the Panel Request. 
By replacing two groups of measures by four individual measures Ukraine modified the subject 
matter of the dispute and broke the link between the measures in question and the relevant 
provisions of the WTO Agree ments that are allegedly violated by such measures.  
8. Therefore the four individual measures as they are put forward by Ukraine in its First Written 
Submission are outside the terms of reference of the Panel as their individual operation was not 
covered b y the Panel Request.  
9. Furthermore, in respect of particular elements constituting each of the two groups of measures 
identified in the Panel Request Ukraine failed to provide any evidence of their existence. It also failed 
to show how the elements of ea ch of the two groups operate together. Ukraine has not provided any 
                                                
1 Appellate Body Report, EC – Fasteners , para. 562.  
2 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews,  para. 162, citing Appellate 
Body Report, Thailand – H-Beams , para. 88.  
3 Appellate Body Report, China – Raw Materials , para. 220.  
4 Appellate Body Report, EC – Bananas III, para. 143.  
 WT/DS512/R/Add.1  
 
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  evidence of inconsistency with a particular provision of the WTO Agreements of any of the two groups 
or the particular elements that each of the groups.  
10. In addition to that, the way Uk raine formulated certain measures does not allow to present 
the problem clearly. In particular, the second group of measures identified in the Panel Request5 
contains two elements:  
"Second , the Russian Federation also imposes restrictions on the traffic i n transit from the territory 
of Ukraine through the territory of the Russian Federation to countries in Central and Eastern Asia 
and Caucasus other than the Republic of Kazakhstan and the Kyrgyz Republic by de facto  applying 
Decree No. 1 and Resolution No.  1 to transit from the territory of Ukraine to third countries other 
than the Republic of Kazakhstan and the Kyrgyz Republic.  
Third, due to the fundamental lack of transparency concerning some of the measures at issue and 
the Russian Federation 's failure to observe the transparency and publication obligations of the GATT 
1994 and of its Accession Protocol, this Panel Request also covers any other related measures 
adopted and/or applied by the Russian Federation concerning traffic in transit from th e territory of 
Ukraine to countries in Central/Eastern Asia and Caucasus through the territory of the Russian 
Federation, including measures that implement, complement, add to, apply, amend or replace any 
of the measures mentioned in Section II.A or Sectio n III.A. " 
11. The so -called "de facto application of the 2016 general and product -specific transit bans " might 
be the compilation of these two elements. According to this wording of the second element of this 
measure ( "restrictions on the traffic in transi t") in combination with the third element of this measure 
("any other related measures concerning traffic in transit ") provided for in the Panel Request any 
measure  affecting traffic in transit from the territory of Ukraine to countries in Central/Eastern Asia 
and Caucasus through the territory of the Russian Federation may fall into this category making it 
an open -ended list of measures.  
12. It took two Written Submissions from the Complainant to bring some  certainty that it was not 
Ukraine 's intention to  challenge, in particular, the entire Customs Code of the Eurasian Economic 
Union that applies to traffic in transit through the territory of the Russian Federation to any 
destinations, including countries of Central/Eastern Asia and Caucasus. However, it is still not clear 
for the Russian Federation why Ukraine believes that the list of "measures applied in respect traffic 
in transit to the countries of Central/Eastern Asia and Caucasus " should apparently be limited to the 
four countries listed in Ukraine 's First Written Submission, i.e. Mongolia, Tajikistan, Turkmenistan 
and Uzbekistan. By Ukraine 's logic, if in the course of consultations the parties to a dispute have 
discussed measures applied only in respect of Mongolia, this would have been sufficient to include 
in a first written submission the measures applied only in respect of China, as long as the request 
for consultations and the panel request had such a broad geographical scope as provided for in 
Ukraine 's Panel Request. This comment on the geogr aphical scope of a measure in question is also 
relevant in the context of the second element of the second group of measures.  
13. An open -ended list does not contribute to the security and predictability of the WTO dispute 
settlement system as required by  Article 3.2 of the DSU. Therefore, the measures formulated by 
Ukraine as "open-ended " should not fall within the Panel 's terms of reference and shall not be 
examined by the Panel.  
14. These inconsistencies of Ukraine 's Panel 's Request with the requirements of Article 6.2 of the 
DSU severely prejudice the ability of the Russian Federation to defend itself in this dispute.  
B. TRANSIT REQUIREMENTS IN QUESTION  
15. Ukraine believes that when a claimant raises an "as such " claim it is not under obligation to 
provide evidence regarding the application of a measure challenged "as such ".6 This assertion by 
Ukraine, in particular, relates to its claims related to the Letters of Rosselkhoznadzor and the "de 
facto application of 2016 gener al and product -specific transit bans ".  
                                                
5 Request for the establishment of a panel by Ukraine (WT/DS512/3), Section III.  
6 Ukraine`s Second Written Submission, para. 25.  WT/DS512/R/Add.1  
 
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  16. Ukraine failed to establish prima facie  case in support of its claims that such measures indeed 
existed,  exist and, moreover, will continue to exist in the future. Ukraine did not provide any 
evidence in support  of its claims regarding the Letters of Rosselkhoznadzor. The sole evidence in 
respect of the so -called "de facto application " is limited by a two -week period from two years ago. 
The statistics provided by the Russian Federation7 au contraire proves that t he transit allegedly 
banned by the Russian Federation continues to flow unrestrictedly.   
17. During the Second Substantive meeting Ukraine filed Exhibit UKR -106 that contained new 
factual evidence in respect of its claims on the Letters of Rosselkhoznadzor . In Russia 's view, this 
Exhibit is not necessary for the purposes of rebuttal, answers to questions or comments on answers 
provided by the other party and therefore its submission at such a late stage is inconsistent with the 
Working Procedures adopted in  this dispute. Russia 's detailed position on this issue is set out in its 
Request dated 13 June 2018.  
C. ARTICLE XXI OF THE GATT  
18. The measures challenged by Ukraine in this dispute in respect of which Russia has invoked 
the provisions of Article XXI of the GATT are the actions that the Russian Federation considers 
necessary for the protection of Russia 's essential security interests taken in time of emergency in 
international relations and  in response to the circumstances that arose in 2014, evolved b etween 
2014-2018 and remain in place to this date. The Russian Federation considers that all actions taken 
were necessary for protection of such interests at the time of their adoption. Moreover, such 
measures are still necessary and attain the purposes fo r which they have initially been adopted.  
19. The information regarding the basis for the imposition of the measures is set out  in the 
Decrees of the President of the Russian Federation and the relevant implementing acts. In addition,  
the original circum stances that led to the imposition of the measures are publicly available in 
abundance, in particular, in the Internet. More importantly, the text of the relevant legal acts 
expressly provides for the rationale behind them and the circumstances that have c alled for their 
adoption.  
20. The measures at issue are the response of the Russian Federation to the circumstances that 
required immediate reaction to an internationally wrongful act or to an unfriendly act of a foreign 
state or its bodies and officials,  when such act poses a threat to the interests and security of the 
Russian Federation and/or violates the rights and freedoms of its citizens. Such internationally 
wrongful acts or unfriendly acts of certain foreign state or their bodies and officials resu lted in 
application of the measures in question, as well as in the adoption of the list of such states or their 
unions.  
21. This list is set out in the Resolution of the Government of the Russian Federation of 7 August 
2014 No.7788 and includes the states  or unions of states that have adopted a decision to introduce 
and apply economic sanctions  in respect of legal and natural persons of the Russian Federation as 
well as countries that have joined such a decision.  
22. Besides Ukraine, this list includes a number of third parties to this dispute, including the EU. 
For the purposes of these proceedings the EU for obvious reasons attempts to shift the focus away 
from such unilateral actions that are applied in respect of Russia9, in particular, by the EU and 
Ukraine, in violation of the UN Charter and that are impairing the authority of the UN Security 
Council.  
23. From the beginning of this dispute Russia was consistent in demonstrating that the situation 
that is the matter of these proceedings and surroundin g circumstances are of political nature, 
involving not measures aimed at regulation of trade, but measures designed to protect national 
security of the Russian Federation, the essential security interests of our State.  
                                                
7 Exhibit RUS -9. 
8 Exhibit – RUS 7.  
9 European Union`s responses to the questions from the Panel to the third parties following the first 
substantive meeting, paras. 4 -5. 
 WT/DS512/R/Add.1  
 
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  24. Map 1 produced in Exhibit UKR -104 by Ukraine identifies the principal road and rail routes 
which were used for transit of goods from Ukraine to Kazakhstan and the Kyrgyz Republic prior to 
2014. However , Ukraine has omitted the fact that traffic through railway corridor 8 Chervona Mohyla 
(or Krasnaya Mogila) was suspended by Ukraine pursuant to Article 29 of the Statute of Ukrainian 
Railways (on the basis of "force majeure circumstances ") by virtue of the telegram of 6 June 2014 
No. CZM -14/946.10 Traffic through the checkpoint Izvaryne (E40 ) was suspended in May 2014 by 
the Ministry of Revenue and Duties of Ukraine.11 Traffic through the checkpoint Uspenskaya –
Kvashino was suspended in accordance with the telegram of Ukrainian Railways of 8 July 2014 No. 
CZM-14/1134 on the basis of "force maj eure circumstances " as well.12 Furthermore, the Regulation 
of the Cabinet of Ministers of Ukraine No. 106 -r of 18 February 2015 suspended traffic through 23 
checkpoints on Ukraine -Russia border.13 Therefore, the operation of the routes mentioned by Ukraine  
was suspended by Ukrainian side.  
25. Moreover, by virtue of the Resolution of the Cabinet of Ministers of Ukraine of 30 December 
2015 No. 1147 "On the ban on imports of goods originating from the Russian Federation to the 
customs territory of Ukraine "14 Ukraine has adopted an import ban on certain products originating 
from the Russian Federation which is in force until 1 January 2019.  
26. Furthermore, the Cabinet of Ministers of Ukraine adopted the Resolution  
of 20 January 2016 No. 2015 which restricts transit of goods listed in the Resolution No. 1147 through 
the designated checkpoints at the border with the Russian Federation and Belarus.  
27. The Decree of the President of Ukraine of 15 May 2017 No. 133/2017 "On Decision of the 
National Security and De fense Council of Ukraine of 28 April 2017 "On Application of Personal Special 
Economic and Other Restrictive Measures (Sanctions) "16 contains consolidated list of special 
economic measures ( "sanctions ") applied by Ukraine in respect of legal and natural persons of the 
Russian Federation. The basis for adoption of this Presidential Decree of Ukraine was the Law of 
Ukraine of 14 August 2014 No. 1644 -VII "On Sanctions "17 that provides for application of special 
economic and other restrictive measures (sanctions).  
28. The number of "sanctions " adopted by Ukraine in respect of Russia continued to expand in 
2018. Among others, Ukraine adopted a ban on exportation of certain Ukrainian civil aviation 
products t o the Russian Federation by virtue of a Decree of the President of Ukraine of 6 March 2018 
No. 58/2018 "On Decision of the Council on National Security and Defense of Ukraine of 1 March 
2018 "On Emergency Measures on Protection of National Security of the State in the Sector of 
Aviation Motors Building ".18  The list of special economic and other restrictive measures (sanctions) 
was further expanded in accordance with the Decree of the President of Ukraine of 6 March 2018 
No. 57/2018 "On Entry into Force of the Decision of the Council on National Security and Defense of 
Ukraine of 1 March 2018 "On Application of personal special economic and other restrictive measures 
(sanctions) ".19  These measures include export restrictions, transit restrictions, limitatio ns on supply 
of services, restrictions in respect of particular natural and legal persons.  
29. The Russian Federation would like to reiterate that the basis for the imposition of the measures 
provided for in the Decrees of the President of the Russian Fede ration and the relevant implementing 
acts as well as the original circumstances that led to the imposition thereof may be well established 
on the basis of the submissions already made by Russia, both on the basis of the texts of the acts 
                                                
10 Exhibit RUS – 14. 
11 Exhibit RUS – 15. 
12 Exhibit RUS – 18. 
13 Exhibit RUS – 17. 
14 As amended by  Resolution of the Cabinet of Ministers of Ukraine of 20 January 2016 No. 28 “On 
amendments to list of goods originating in the Russian Federation and prohibited for imports into Ukraine”, 
Resolution of the Cabinet of Ministers of Ukraine of 6 July 2016 No . 417 “On amendments to the resolution of 
the Cabinet of Ministers of Ukraine of 30 December 2015 No. 1147”,  Resolution of Cabinet of Ministers of 
Ukraine of 20 December 2017 No. 1022 “On amendments to resolution of the Cabinet of Ministers of Ukraine of 
30 December 2015 No. 1147” ( Exhibit RUS – 19). 
15 Exhibit RUS – 16. 
16 Exhibit RUS – 20. 
17 Exhibit RUS – 21. 
18 Exhibit RUS – 22. 
19 Exhibit RUS – 23. 
 WT/DS512/R/Add.1  
 
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  cited by Russia in  its First Written Submission20 and Statements at First Substantive Meeting21, as 
well additional explanation provided by Russia in respect of the operation of these acts.  
30.  It is at discretion of a Member taking the measures under GATT Article XXI(a) and (b) to 
determine, inter alia,  whether its national security interests are at stake, whether such interests 
are essential ones, whether a particular action is necessary for the protection of such interests.  
31. A statement by that Member that the measu res taken are the actions which it considers 
necessary for the protection of its essential security interests taken in time of war or other 
emergency in international relations, as the case may be, is sufficient for that Member to benefit 
from the exceptio n set out in Article XX(b) of the GATT. This assessment by a Member cannot be 
doubted or re -evaluated by any other party or judicial bodies, as the measures in question are not 
ordinary trade measures regularly assessed by the WTO panels.  
32. Thus, Russia  is not in a position to disclose information that is related to the ongoing 
emergency, besides the information it has already provided, fully satisfying the burden of proof. The 
reasons for that, include not only the matters of confidential information an d national security of the 
Russian Federation , but also the efforts of the Russian Federation to keep the issues such as wars, 
insurrections, unrests, international conflicts outside the scope of the WTO which is not designed for 
resolution of such crises and related matters.  
33. In respect of the judgments of the International Court of Justice referred to by Ukraine the 
Russian Federation  would like to note the following.  
34. By citing certain extracts from the Military and Paramilitary Activities in and against Nicaragua  
case and Oil Platforms  case Ukraine tries to create an impression that the ICJ came to a conclusion 
that Article XXI of the GATT, in particular paragraph (b) thereof, is not of a self -judging nature. 
Ukraine attempts to present the judgme nts of the ICJ in these two cases as if the ICJ has ruled that 
even though the two treaties in question do not contain the language similar or identical to the 
language of Article XXI of the GATT, in particular the "it considers " language,  this wording is  implied 
in the text of the respective provisions of the treaties in question, which nevertheless does not 
prevent the ICJ from examining the cases and concluding that the respondent in those cases was 
under an obligation to show that its actions were inde ed necessary for the purpose of protection of 
its essential interests. Moreover, Ukraine seems to suggest that the ICJ adopted the element of 
"taken in the time of war or other emergency in international relations " of GATT Article XXI(b)(iii) in 
the context of its judgments, even though the relevant language is not present in the text of the 
treaties examined by the ICJ.  
35. Ukraine 's assessment of the ICJ 's judgement is erroneous for the following reasons.  
36. Article  XXI(1)(d) of the Treaty of Friendship, Commerce and Navigation between the United 
States and Nicaragua reads as follows:  
"The present Treaty shall not preclude the application of measures:  
… 
(d) necessary to fulfill the obligations of a Party for t he maintenance or restoration of international 
peace and security, or necessary to protect its essential security interests. " 
In accordance with Article XX(1)(d) of the Treaty of Amity, Economic Relations and Consular Rights 
between the United States and I ran: 
"The present Treaty shall not preclude the application of measures:  
… 
                                                
20 First Written Submission by the Russian Federation, paras. 16 – 19. 
21 First Substantive Meeting Opening Statement by the Russian Federation, paras. 30 -36. WT/DS512/R/Add.1  
 
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  (d) necessary to fulfil the obligations of a High Contracting Party for maintenance or restoration of 
international peace and security, or necessary to protect its essential securit y interest ". 
37. These two provisions are similar to each other. However, they are conceptually different from 
the relevant part of Article XXI(b) of the GATT. This difference was expressly reflected in the 
judgment of the ICJ in Military and Paramilitary Activities in and against Nicaragua . Ukraine cited 
certain provisions from this judgment of the ICJ. However, it failed to provide the full quote from 
paragraph 222 thereof.  
38. In this paragraph the ICJ states clearly "that the Court has jurisdiction to d etermine whether 
measures  taken by one of the Parties fall within such an exception, is also clear a contrario from the 
fact that the text of Article XXI of the Treaty does not employ the wording which was already to be 
found in Article XXI of the General Agreement on Tariffs and Trade. This provision of GATT, 
contemplating exceptions to the normal implementation of the General Agreement, stipulates that 
the Agreement is not to be construed to prevent any contracting party from taking any action which 
it "considers necessary for the protection of its essential security interests" , in such fields as nuclear 
fission, arms, etc. The 1956, on the contrary, speaks simply of "necessary" measures, not of those 
considered by a party to be such "22. 
39. Thus, the ICJ has made the explicit distinction between Article XXI of the Treaty of Friendship, 
Commerce, and Navigation of 1956 and Article XXI of the GATT.  
40. Ukraine  misinterprets the conclusions of the ICJ.23 In paragraph 282 of the ICJ Judgment in 
Military and Paramilitary Activities in and against Nicaragua the Court expressly stated that "by the 
terms of the Treaty itself, whether a measure is necessary to protect the essential security interests 
of a party is not, as Court has emphasized (paragra ph 222), purely a question for a subjective 
judgment of the party; the text does not refer to what a party "considers necessary " for that purpose. 
We would like to highlight the following: "by the terms of the Treaty itself " and "the text does not 
refer to what a party "considers necessary " for that purpose ". 
41. Ukraine draws false conclusions both regarding the limits of the scope of "necessity " and the 
possibility of any measures taken to protect essential security interest be subject to judicial review.24 
42. The Russian Federation notes that the conclusion of Ukraine regarding judicial review is 
partially correct . Some measures taken for the purpose of protection of essential security interests 
may indeed be subject to judicial review. However, as the I CJ has pointed out, the objective 
judgment in that respect should be allowed by the terms of a treaty itself . For that purpose, quoting 
the ICJ again, the treaty should "not refer to what a party "considers necessary "".  
43. The conclusions of the ICJ in Oil Platforms  Judgment are also taken by Ukraine out of context. 
That leads to flawed conclusions by Ukraine. To sum up, the overall logic of Ukraine relies upon one 
particular phrase in that judgment containedin paragraph 43 thereof.  The ICJ examined the 
application of Article XX(1)(d) of the US -Iran Treaty and came to a conclusion that:  
"On the basis of that provision, a party to the Treaty may be justified in taking certain measures 
which it considers to be "necessary " for the protection of its essential  security interests. " 
44. Based on this sentence Ukraine comes to a far -reaching conclusion that what the ICJ did was 
ruling that the "it considers " language is implied in the text of the US -Iran Treaty. However, that is 
not the case. The ICJ merely stated  that certain measures may or may not be justified on the basis 
of the provisions of a particular treaty. The provisions of US -Iran Treaty and US -Nicaragua Treaty 
allowed for this scenario as well as an assessment by the ICJ. The reason for that was the te xt of 
the particular treaties, which did not contain the "it considers " language.  
45. Therefore, contrary to what Ukraine suggests, in Oil Platforms  the ICJ did not add any new 
elements to what have already been established on this issue in Military and Paramilitary Activities 
in and against Nicaragua.  Notably, the ICJ merely confirmed that a State may consider that the 
                                                
22 ICJ, Military and Paramilitary Activities in and against Nicaragua , para. 222.  
23 Second Written  Submission of Ukraine, para. 85.  
24 Second Written Submission of Ukraine, para. 86.  WT/DS512/R/Add.1  
 
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  measure it has taken is necessa ry for the purpose of protection of its essential security interests. 
However, whether such assessment is correct is of self -judging nature and is at full discretion of that 
State or may be subject to objective review by a court depends on the particular t reaty provisions. 
In case of US -Nicaragua and US -Iran treaties objective assessment by the ICJ was possible due to 
the relevant provisions of the treaties in question. These provisions are substantially different from 
the GATT Article XXI(b) as the ICJ has  emphasized in paragraph 222 of its judgment in Military and 
Paramilitary Activities in and against Nicaragua : unlike Article XXI(b) of the GATT, the US -Nicaragua 
Treaty, "on the contrary, speaks simply of "necessary" measures, not of those considered by a  party 
to be such ".  
46. It shall also be noted that certain aspects of the conclusion by the Court regarding the criteria 
of proportionality and necessity borrowed by Ukraine from Oil Platforms  Judgment are completely 
irrelevant for the purposes of these proceedings for yet another reason.  
47. The Oil Platform  dispute dealt simultaneously with two issues. First, the interpretation by the 
US of Article  XX of the US -Iran Treaty. Second, the invocation by the US of the right to self -defense.  
48. In the cont ext of the claims by the US that it considered in good faith that its certain actions 
were necessary to protect its essential security interests, the ICJ states that "the Court does not 
have to decide whether the United States interpretation of Article XX,  paragraph 1(d), on this point 
is correct, since the requirement of international law that measures taken avowedly in self -defence 
must have been necessary for that purpose is strict and objective, leaving no room for any "measure 
of discretion ". The Court  will therefore turn to the criteria of necessity and proportionality in the 
context of international law on self -defence "25. Therefore, the ICJ does not provide any guidance in 
respect of the provision of the US -Iran Treaty in question that could be relev ant to the issues raised 
in the present dispute.  
49. The cases referred to by Ukraine only highlight the critical difference between the provisions 
of the relevant treaties examined by the ICJ and the GATT Article XXI. The Russian Federation sees 
that diff erence in two main elements: the "it considers " language and "taken in time of war or other 
emergency in international relations ".   
 
50. The UN Charter and the Statute of the ICJ provide for broad jurisdiction of the Court. As the 
Russian Federation has a lready stated, the World Trade Organisation is a trade organization. The 
Marrakesh Agreement established specific area of competence of this organisation26. The DSB being 
a body of this trade organisation may not in any way assume the functions of the ICJ. However, this 
is exactly what Ukraine compels the DSB to do.  
51. The Russian Federation also notes that, in our view, Ukraine mistakenly links the principle of 
good faith in the context of the issue of exercise of discretion by a State with the jurisp rudence 
developed by the ICJ in Oil Platforms and Military and Paramilitary Activities in and against 
Nicaragua27. Paragraph 145 of the Judgment by the ICJ in Certain Questions of Mutual Assistance in 
Criminal Matters refers to the said disputes involving the US in the context of the issues of 
competence of the Court. The issue of good faith principle is, however, referred to in the context of 
The Certain Interests in Polish Upper Silesia  and Free Zones of Upper Savoy and the District of Gex . 
Therefore the conclusions drawn by Ukraine from Certain Questions of Mutual Assistance in Criminal 
Matters  are also flawed and not relevant to this particular dispute.  
52. The Russian Federation also notes that Ukraine follows the EU in referring to the ECJ 
jurisprudenc e and the EU aquis . Although such references by the EU might be understandable, they 
are completely irrelevant for the purpose of these proceedings.  
                                                
25 ICJ, Oil Platforms, para.73.  
26 Para. 6 of Russia’s Closing Statement at First Substantive Meeting.  
27 Para. 92 of the Ukraine’s Second Written Submission.  WT/DS512/R/Add.1  
 
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  D. CONCLUSION  
53. Ukraine attempts to present its case as if the measures in question adopted by the Russian 
Federation were adopted for a sole purpose of economic protectionism. As Russia has indicated on 
numerous occasions, the measures in respect of which the provisions of Article XXI of the GATT were 
invoked were adopted by the Russian Federation solely for the purpose of protection of its national 
security and do not even by their design or nature result in "economic protectionism ", mainly 
because there are no specific economic interests that may be hypothetically protected by the 
measures in question. There is no industry or a single producer of the Russian Federation that would 
be afforded protection as the result of these measures.  
54. The Russian Federation would lik e to highlight once again that the conclusions that will be 
made by the Panel in this dispute will have far -reaching consequences for the multilateral trading 
system.  
55. These conclusions would not only affect the ability of sovereign States to appropria tely react 
to international emergencies for the purpose of protection of their national security on an ad hoc  
basis. These conclusions will inevitably have spillover effects, including on the existing systems of 
exports control and non -proliferation commit ments. These systems currently operate under the 
umbrella of Article XXI, in particular paragraph (b) thereof. The change in balance of rights and 
obligations of the Members under Article XXI, as a result of its interpretation, even a slightest and 
reserve d one, may change the level of legal protection of such measures causing respective negative 
consequences for their WTO consistency.  
56. The risk of abuse of Article XXI of the GATT is indeed high. Moreover, current trends show 
that these risks manifest th emselves at a speed of an avalanche. However, Article XXI of the GATT 
itself provides a counterbalance for such potential risks.  
 
_______________  
 
 
 
 WT/DS512/R/Add.1  
 
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ANNEX  D 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  D-1 Execut ive summary of the arguments of Australia  69 
Annex  D-2 Executive summary of the arguments of Brazil  73 
Annex  D-3 Executive summary of the arguments of Canada  76 
Annex  D-4 Executive summary of the arguments of China  81 
Annex  D-5 Executive summary of the arguments of the European Union  84 
Annex  D-6 Executive summary of the arguments of Japan  89 
Annex  D-7 Executive summary of the arguments of Moldova  94 
Annex  D-8 Executive summary of the arguments of Singapore  99 
Annex  D-9 Executive summary of the arguments of Turkey  103 
Annex  D-10 Executive summary of the arguments of the United States  106 
 
 WT/DS512/R/Add.1  
 
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  ANNEX  D-1 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA  
I.  INTRODUCTION  
1. Australia considers that this dispute raises significant issues regarding the invocation and 
interpretation of Article XXI(b) of the General Agreement on Tariffs and Trade 1994  (the GATT 1994) 
as well as the rights and obligations of WTO Members and the pr oper function of panels provided for 
under the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).  
 
II. THE EXCEPTIONAL NA TURE OF THE SECURITY  EXCEPTION  
2. Australia recalls that Article XXI(b) is an exception to a Member 's obligations under the 
GATT  1994, and its use is explicitly limited by the text of the provision.  
 
3. This text reflects the shared concerns of the drafters, understandable in light of two world 
wars, regarding the interplay of national security and sovereig nty in the realm of international trade. 
The specific reference to fissionable materials reflects concerns regarding the devastating nuclear 
experience during World War II. A call for coherence with the United Nations Charters reflects the 
expectation that  the "International Trade Organisation " would function as a UN organisation, like 
other Bretton Woods institutions.  
 
4. The US delegation that contributed to drafting the original security exception expressly 
observed the delicate balance the provision wo uld need to address, stating:  
 
 … we cannot make it too tight, because we cannot prohibit measures which are needed 
purely for security reasons. On the other hand, we cannot make it so broad that, under the 
guise of security, countries will put on measure s which really have a commercial focus.1 
 
5. In addition, the Norwegian Chair of the Working Group foresaw that the spirit in which 
Members interpreted these provisions would be the only guarantee against abuse.2  
 
6. This spirit is best reflected in the restraint WTO Members have demonstrated for the past 20 
years. It is no accident that, in over two decades of WTO jurisprudence, this is the first time a WTO 
panel has been called upon to consider a Member's invocation of Article XXI.  
  
7. In light of the balance of sensitive interests Article XXI seeks to accommodate – as well as the 
responsibility of Members to guard against undue use of this exception – Australia submits that each 
invocation of Article XXI must be considered carefully on a case -by-case basis.  
 
III. JURISDICTION OF A PA NEL TO REVIEW A MATT ER WHERE A MEMBER INVO KES 
ARTICLE  XXI(b) 
8. In its First Written Submission, Russia appears to suggest that a Member's invocation of Article 
XXI(b) automatically takes a dispute outside the jurisdict ion of a panel.3  
 
9. Russia submits that neither the Panel nor the WTO as an institution has jurisdiction over this 
matter4 on the basis that the measures Ukraine has challenged were introduced pursuant to Russia's 
right "to take any action which it consi ders necessary for the protection of its essential security 
interests in the time of war or other emergency in international relations ".5 
 
(i) Does the Panel have jurisdiction to consider this matter?  
 
10. Article 7(1) of the DSU defines a panel's standard  terms of reference as: to examine the 
matter referred to it, in the light of the relevant provisions in the covered agreement(s) cited by the 
                                                
1 EPCT/A/PV/33, p. 20 -21 and Corr.3 . 
2 GATT/CP.3/SR.22, Corr.1  
3 First Written Submission of the Russian Federation, para. 47.  
4 First Written Submission of the Russian Federation, para. 7. (emphasis added)  
5 First Written Submission of the Russian Federatio n, para. 5.  WT/DS512/R/Add.1  
 
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  parties to the dispute; and make such findings as will assist in making the recommendations or 
rulings provided f or in the relevant agreement(s).  Article 7(2) of the DSU further provides that panels 
"shall address the relevant provisions in any covered agreement or agreements cited by the parties 
to the dispute ". 
 
11. The Appellate Body has explained that the use of the words "shall address " indicates that 
panels are in fact "required to address the relevant provisions in any covered agreement or 
agreements cited by the parties  to the dispute ".6 
 
12. The Panel in this dispute was established with these standard terms of reference.7 
 
13. In this dispute, Ukraine has cited Articles V:2, V:3, V:4, V:5, X:1, X:2, X:3(a), XI:1 and 
XXIII:1 of the GATT 1994, claiming that the measures at issue violate Russia's obligations with 
respect to these provisions.  Russi a has cited Article XXI(b)(iii) of the GATT 1994 as a complete 
defence to Ukraine's claims of violation (while also advancing additional arguments related to 
temporal matters).  
 
14. In Australia's view, it follows that Article 7 of the DSU vests the Panel with the jurisdiction to 
examine and make findings with respect to each of the "relevant provisions in the covered 
agreements " that Ukraine and Russia have cited.  Australia therefore disagrees with Russia's 
submission that the Panel does not have jurisdict ion over this matter.  
 
(ii) Does the Panel have the discretion to decline to exercise its jurisdiction?  
 
15. As outlined above (at paragraphs 11 and 12), Article 7 of the DSU does not simply empower  
a panel to address the relevant provisions of the covered agreements cited by the parties, but in 
fact requires  a panel to do this.  
 
16. In discharging this adjudica tive function, Article 11 of the DSU obliges a panel to:  
 
 … make an objective assessment of the matter before it, including an objective assessment 
of the facts of the case and the applicability of and conformity with the relevant covered 
agreements, and make such other findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in the covered agreements.  
 
17. More broadly, Article 3.2 of the DSU recognises that the dispute settlement system: (i) is a 
"central elemen t in providing security and predictability to the multilateral trading system "; and (ii) 
serves to preserve the rights and obligations of Members under the covered agreements.  This is 
reinforced by Article 3.3 of the DSU, which highlights that the ability of Members to bring disputes 
"is essential to the effective functioning of the WTO and the maintenance of a proper balance 
between the rights and obligations of Members ". 
 
18. In addition, Article 19.2 of the DSU prohibits a panel from making findings that  would "add to 
or diminish the rights and obligations provided in the covered agreements ". 
 
19. The Appellate Body has confirmed that the dispute settlement system is the fundamental 
means through which Members' rights and obligations are enforced:  
 
 … allowing measures to be the subject of dispute settlement proceedings ... is consistent 
with the comprehensive nature of the right of Members to resort to dispute settlement to 
"preserve [their] rights and obligations … under the covered agreements, and to cl arify the 
existing provisions of those agreements ".8 
 
20. The Appellate Body has also recognised that, while panels enjoy some discretion in discharging 
their core adjudicative function, "this discretion does not extend to modifying the substantive 
provisi ons of the DSU ".9 
                                                
6 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 49. (emphasis added)  
7 Dispute Settlement Body – Minutes of meeting held in the centre William Rappard on 21 March 2017 
(WT/DSB/M/394).  
8 Appellate Body Report, US – Corrosion -Resist ant Steel Sunset Review , para. 89.  
9 Appellate Body Report, India-Patents (US) , para. 92. (emphasis added)  
 WT/DS512/R/Add.1  
 
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21. In addition, in examining a panel's obligation in Article 11 of the DSU, the Appellate Body has 
observed that "[i]t is difficult to see how a panel would fulfil that obligation if it declined to exercise 
validly established jurisdict ion and abstained from making any finding on the matter before it ".10 
 
22. Furthermore, the Appellate Body has noted that a Member's right under Article 3.3 of the DSU 
to initiate a WTO dispute when it considers that benefits accruing to it are being impai red by another 
Member implies that a Member "is entitled to a ruling by a WTO panel ".11 
 
23. It was on the basis of these rights and obligations – with respect to both Members and panels 
– that the Appellate Body upheld the panel's conclusion in Mexico – Taxes on Soft Drinks that "under 
the DSU, it ha[d] no discretion to decline to exercise its jurisdiction in that case that ha[d] been 
brought before it ".12 
 
24. In Australia's view, if the Panel were to decline to exercise its jurisdiction in this matter, t his 
would deprive Ukraine of its rights under Articles 3.2 and 3.3 of the DSU to bring a dispute in order 
to remedy the benefits it considers Russia's measures are impairing.  
 
25. Australia considers that declining to exercise jurisdiction in this dispute would also be 
inconsistent with the Panel's obligations under Articles 7, 11 and 19.2 of the DSU to:  
 
(i) address the relevant provisions of the covered agreements cited by Ukrain e and 
Russia;  
(ii) make an objective assessment of this matter, including an objective assessment of 
the facts and the applicability of and conformity with the relevant provisions of the 
GATT 1994; and  
(iii) not add to or diminish the rights and obligati ons of either Ukraine or Russia.  
 
26. Accordingly, in order to give full effect to the rights and obligations provided in the DSU, 
Australia submits that the Panel cannot decline to exercise its jurisdiction to address the matters 
before it.  
 
IV. SCOPE OF REVIEW OF A RTICLE XXI(B) OF THE  GATT 1994  
27. By its terms, Article XXI(b) provides that nothing in the GATT 1994 shall be construed to 
prevent a Member "from taking action which it considers necessary for the protection of its essential 
security interests " in three specific factual circumstances.  
 
28. Australia considers that the use of the words "it considers necessary " in Article XXI(b) of the 
GATT 1994 indicates that it is for a Member  to determine "its essential security interests " and the 
actions "it considers necessary " for the protection of those interests.13 In Australia's view, a panel's 
task in reviewing the "necessity " aspect of Article XXI(b) is limited  to determining whether the 
Member  in fact  considers the action necessary (such as by  having regard to the Member's statements 
and conduct).  
 
29. Accordingly, in this dispute, Australia submits that Article XXI(b) does not require the Panel 
to make its own determination of what "it considers necessary " (such as by engaging in a 
proportion ality analysis) or to substitute its determination for that of Russia's.  In this light, 
considerations of "reasonableness " or "plausibility " risk infringing upon the deference that must be 
accorded to Russia under Article XXI(b) by having the Panel second -guess what Russia considers 
necessary.  
 
30. However, this deference to Russia does not preclude the Panel from undertaking any review 
of Russia's invocation of Article XXI(b) or dispense with the Panel 's obligation to undertake an 
                                                
10 Appellate Body Report, Mexico – Taxes on Soft Drink , para. 51.  
11 Appellate Body Report, Mexico – Taxes on Soft Drink , para. 52. (emphasis origina l) 
12 Appellate Body Report, Mexico – Taxes on Soft Drink , para. 57.  See also Appellate Body Report, 
Canada – Measures Affecting the Export of Civilian Aircraft , para. 187 (quoting  The Concise Oxford English 
Dictionary (Clarendon Press, 1995), p. 1283); Appellate Body Report,  US – Corrosion -Resistant Steel Sunset 
Review , para. 89.  
13 Australia's third party oral statement at the first meeting of the Panel, para. 11.  WT/DS512/R/Add.1  
 
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  objective assessment of t he matter before it, including an objective assessment of the facts of the 
case. 
 
31. While Australia considers that the text of Article XXI(b) empowers a Member to determine for 
itself what action "it considers necessary " – and, accordingly, a panel's nat ure and scope of review 
of this "necessity " aspect is limited – Australia sees a broader  role for a panel in determining whether 
that (necessary) action was taken "for the protection of " the Member's essential security interests.  
 
32. Australia observes th at the ordinary meaning of "for" is "[w]ith the object or purpose of "; 
"with a view to "; "conducive to; leading to; giving rise to; with the result or effect of ".14 In Australia's 
view, a factual assessment of this "purposive " aspect of Article XXI(b) requires a panel to examine 
whether there is a "sufficient nexus " between the action taken and the Member's essential security 
interests.15 If the action taken by a Mem ber is not "capable of making … some contribution "16 to 
protecting the essential security interests identified, it would be reasonable for a panel to determine 
that the action was not in fact  taken "for" such a purpose, consistent with Article XXI(b).17 
 
33. In Australia's view, this factual analytical framework allows a panel to discharge its obligations 
under the DSU to make an objective assessment of the matter before it,18 while giving effect to the 
explicit deference accorded to Members under Article XXI(b).  
 
34. Accordingly, in this dispute, Australia submits that it is for Russia to determine for itself what 
action "it considers necessary " under Article XXI(b). However, the Panel must undertake a factual 
analysis of whether Russia does in fact consid er the action necessary; and, if so, whether that 
(necessary) action was in fact  taken "for the protection of " Russia's essential security interests.  
 
V. CONCLUSION  
35. In order to give proper effect to Members' rights and obligations under the WTO covered  
agreements, and to the Panel's obligations and terms of reference under the DSU, Australia submits 
that the Panel should exercise its jurisdiction to address all relevant provisions in the GATT 1994 
cited by Ukraine and Russia in this dispute, including A rticle XXI(b)(iii).  
 
36. Article XXI(b)(iii) reflects the critical importance of national security interests to Members' 
fundamental sovereignty. Deference to a Member's determination of what action "it considers 
necessary " to protect its essential securit y interests is explicit in the text of this provision and must 
be given proper effect. However, in Australia's view, this deference is not absolute.  
 
37. In Australia's view, in undertaking its objective assessment of this matter, the Panel should 
determi ne: 
 
(i) whether Russia in fact  considers the actions it has taken are necessary  for the 
protection of its essential security interests (such as by having regard to Russia's 
statements and conduct); and  
(iii) whether those (necessary) actions were in fact taken for the protection  of Russia's 
essential security interests.  
 
                                                
14 The New Shorte r Oxford English Dictionary , 4th edition, L. Brown  (ed.) (Oxford University Press, 
1993), Vol. 1, p. 996.  
15 European Union's third party submission, para. 56; Appellate Body Report, EC – Seal Products , para. 
5.169.  
16 Appellate Body Report, EC – Seal Prod ucts, para. 5.228, cited in Appellate Body Report, US – COOL 
(Article 21.5 – Canada and Mexico) , para. 5.209.  
17 European Union's third party submission, para. 53; Appellate Body Report, Colombia -Textiles , para. 
5.68. 
18 Understanding on Rules and Procedur es governing the Settlement of Disputes  Article 11.  WT/DS512/R/Add.1  
 
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  ANNEX D -2 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL  
1. Brazil made four main points in its third party submission and oral statement: (I) a proper 
application of the security exceptions of Article XXI of the GATT 1994 requires an adequate 
balance between two competing interests; (II) the mere invocation of the security exceptions 
of Article XXI does not exclude a Panel 's jurisdiction over the matter before it; (III) the 
subparagraphs of Article XXI(b) provide for objective circumstances which condition the 
recourse to the security exception of that literal; and (IV) Members invoking security 
exceptions have the burden of at least indicating the reason s why they consider certain 
measures necessary for the protection of their essential security interests.  
I. A proper application of the security exceptions of Article XXI involves the 
balancing of two competing interests.  
2. In its first written submission , Brazil focused on the two competing interests to be taken into 
account when considering the invocation of security exceptions. On the one hand, there is a 
Member 's unquestionable right to protect its essential security interests; on the other, there 
is the need to prevent the abuses that could ensue if security exceptions were misused to 
exempt measures of a strictly commercial nature from the agreed GATT disciplines.  A proper 
balance must be struck between those two.  
II. The mere invocation of the securi ty exceptions of Article XXI does not exclude 
the Panel 's jurisdiction over the matter brought before it.  
3. Brazil considers that Article 7 of the DSU bestows upon the panel the jurisdiction to examine 
and to make findings in relation to each of the "relevant provisions in the covered agreements " 
cited by the parties. More specifically, Article 7(2) does even more than that, as it does not 
simply allow the panel to address the provisions invoked by the parties, it requires  the panel 
to do so. Therefore, th e fact that Russia chose to cite Article XXI of the GATT 1994 as a defense 
obliges the Panel to examine this provision.  
4. As a result, unless otherwise justified by the exercise of true judicial economy, a panel is 
required by WTO law to examine and to ma ke findings with respect to all provisions cited by 
the parties, which in the current proceedings include Article XXI.  
III. Subparagraphs (i) through (iii) of Article XXI(b) provide for objective 
circumstances which condition the recourse to the security e xception of that 
literal.  
5. Brazil argued that, in its relevant part, Article XXI(b) states that nothing in the GATT shall be 
construed to prevent a Member from taking any action it considers  necessary for the protection 
of its essential security interest s under three specific sets of circumstances . In other words, 
Article XXI(b) does not stop at the chapeau. It goes on to list an exhaustive number of 
circumstances under which the exceptions apply.  
6. Therefore, Article XXI(b) contains both a subjective component – i.e., the judgment regarding 
the necessity of the measure –  and an objective component – which relates to the presence 
of at least one of the circumstances exhaustively listed in subparagraphs (i) through (iii).  
7. Accordingly, the Panel 's first step should be the assessment of whether one or more of the 
circumstances in subparagraphs (i) through (iii) – as invoked by the party asserting the 
defense – are present.  
8. As Russia has invoked the security exception of Article XXI(b)(iii) , it is Brazil 's understanding 
that the Panel must be satisfied that the challenged measures to be justified under the WT/DS512/R/Add.1  
 
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  exception constitute actions "taken in time of war or other emergency in international 
relations ". 
9. Furthermore, Brazil considers that,  since the recourse to exceptions is in the nature of an 
affirmative defense, it is the burden of the Member invoking Article XXI(b)(iii) to adduce 
evidence of the fact that the challenged measures constitute actions taken in time of war or 
other emergency  in international relations. This means that it is not enough for a Member to 
simply "refer" to one of the circumstances in article XXI; it must present evidence to 
demonstrate that the circumstance exists.  
IV. Members invoking security exceptions have the  burden of at least indicating 
the reasons why they consider certain measures necessary for the protection 
of their essential security interests.  
10. Brazil argued that although the language of Article XXI – "it considers " – confers a great deal 
of discret ion regarding the necessity of the measure, that does not mean that the autonomy 
accorded by this provision is completely unfettered. In this respect, Brazil understands that 
Members invoking Article XXI bear the burden of at least justifying their asserti on of necessity. 
Therefore, it is not sufficient for Members to state that they consider certain measures 
necessary; they must also explain why they consider those measures necessary.  
11. In explaining the reasons for considering the challenged measures ne cessary, the invoking 
member should offer some indication as to which essential security interests motivated the 
challenged measures. Otherwise, it would be impossible for the panel to ascertain whether 
they are indeed interests related to security and whe ther there is a connection with the 
circumstances provided for in subparagraphs (i) to (iii), as raised by the Member.  
12. Brazil considers that only essential interests related to security  may serve as the basis for the 
recourse to the exceptions in Artic le XXI(b). Interests pertaining to different areas, but which 
may also affect trade obligations, are covered by the general exceptions of Article XX.  
13. Moreover, the Panel must be satisfied that there is a connection between the challenged 
measure and t he war or emergency deemed present pursuant to subparagraph (iii) of Article 
XXI(b). Brazil believes that the need for this connection is justified because precluding this 
analysis could lead to untenable results, as a Member would be allowed to disregard its 
obligations under the GATT in relation to all WTO members, in a manner that could be entirely 
unrelated to the particular situation of war or emergency.  
14. Finally, the Panel should also be satisfied that there is a plausible link between the challeng ed 
measure and the purpose stated in its motivation. Brazil believes that a Member is not required 
to delineate in detail what its "essential security interests " are, since this could be sensitive 
information in the sense of Article XXI(a). However, it sho uld, at a minimum, justify the actions 
taken in the name of protecting its "essential security interests" in a manner that allows the 
Panel to assess if the action was reasonable or plausible in view of, in the present case, the 
events described in Article  XXI(b)(iii), i.e., "war or other emergency in international relations ". 
Main points made by Brazil in its answers to the Panel 's questions  
15. With regard to the degree of specificity to be provided by a Member in relation to the essential 
security interests it aims to protect, Brazil considers that the level of detail expected of the 
invoking Member "will necessarily vary from measure to measure , provision to provision, and 
case to case "1 and that there should be no rigid formula as to what information a Member 's 
explanation must contain. In any case, the information provided by the Member invoking 
Article XXI(b) must be sufficient for the panel to be able to assess whether the recourse to 
the security exception is legitimate or whether it constitutes abuse. In this sense, the essential 
security interests at stake only need to be identified to the extent necessary for the panel to 
be able to condu ct its analysis.  
                                                
1 Appellate Body Report, US – Shirts and Blouses , pg. 14.  WT/DS512/R/Add.1  
 
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  16. With regard to the Panel 's analysis of good faith, Brazil believes that findings that a Member 
has not invoked Article XXI(b) in good faith should be limited to situations in which there is a 
flagrant lack of logical consistency in the Member 's argumentation.  
17. With regard to the interaction between Article XXI(a) and Article XXI(b), Brazil considers tha t 
the two provisions deal with very different situations. On the one hand, Article XXI(a) is 
concerned with a scenario in which a Member is required to provide pieces of information the 
disclosure of which is, in itself , a threat to essential security inte rests. It would seem that the 
core of Article XXI(a) is related to a request for information and to transparency obligations. 
On the other hand, Article XXI(b) deals with situations in which actions that would otherwise 
violate obligations assumed under th e GATT are nonetheless needed to protect essential 
security interests. In this context, it would seem that explaining why a measure is necessary 
for security purposes is not per se  incompatible with Article XXI(a). Thus, the party invoking 
Article XXI(b) h as to achieve a minimum evidentiary threshold that enables the panel to 
discern genuine invocations of Article XXI(b) from abuses.  
 
 
 WT/DS512/R/Add.1  
 
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  ANNEX D -3 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA  
I. ARTICLE XXI OF THE G ATT 1994  
1. Canada is of the view that Article XXI is a needed part of the international rules -based trading 
system but that Members should be prudent and sparing in their use of Article XXI.  While Members 
must be able to take actions necessary for their security, they must also n ot abuse the international 
rules-based trading system of which they are willing parties and beneficiaries.  The WTO is not 
intended or equipped to resolve security issues or conflicts and, as a general matter, Canada urges 
Members involved in such situation s to proactively and constructively engage to peacefully resolve 
the situation and avail themselves of any means that may assist them in doing so.  
A. Article XXI is justiciable  
2. If Article XXI is invoked by a Member in a dispute then its applicability is  justiciable unless 
consideration of the Article has been excluded from a panel's terms of reference.  In a letter to the 
Chairman of the Panel, Canada observed that: "the DSU makes it clear that panels do not have the 
discretion to decline exercising the j urisdiction conferred on them by those terms of reference, nor 
do they have the discretion not to discharge the obligations imposed on them by Article 11".  Canada 
also concurs with the analysis set out in Australia's third party submission in paragraphs 4 -22 
regarding the jurisdiction of a panel.  
B. A panel must make an objective assessment of the invoking Member's good 
faith belief that the elements required to invoke Article XXI exist  
3. All obligations in the WTO Agreements must be interpreted in good fa ith and in light of their 
object and purpose.  Each Article must also be interpreted on its own merits. Canada cautions against 
importing tests developed in jurisprudence to interpret other Articles, such as Article XX, as tools to 
interpret Article XXI. Un like Article XX, the chapeau of Article XXI does not include any conditions 
and is thus broad in scope, though still subject to interpretation in the overall context of the treaty 
and its object and purpose.  
4. Article XXI(b), of which subparagraph (iii) h as been invoked by Russia, provides for a 
subjective standard with the following language: "… any action which it considers necessary for the 
protection of its essential security interests  ". It is the invoking Member which determines the 
interests, the actions and the necessity of the actions.  Canada is of the view that this subjective 
standard also applies to the language of sub -paragraph (iii) as it completes the phrase begun in the 
opening words of paragraph (b) and it would defeat the broad discretion accorded to the invoking 
Member if the assessment of the situation that gave rise to the need for the action were to be subject 
to a different standard from that set out in the chapeau.  At the same time, a panel is tasked under 
Article 11 of the DSU to make an objective assessment of the matter before it.  As such, for Article 
XXI, the panel should make an objective assessment of a subjective perspective; in other words, 
the panel's task is to determine whether the invoking Member believes i n good faith that the 
elements required to invoke Article XXI exist.  
C. The invoking Member must substantiate its good faith belief that the 
elements required to invoke Article XXI exist  
5. The subjective standard and the particularly sensitive nature of the subject matter of Article 
XXI mean that an invoking Member must be accorded a high level of deference by a panel.  However, 
to guard against abuse of the provision, Canada is of the view that an invoking Member must 
substantiate its good faith  belief that the elements for invoking Article XXI exist, for example with 
regard to Article XXI(b)(iii), that there is an "essential security interest ", that the action taken is 
necessary and relates to the protection of this essential security interest, and that the action is 
"taken in a time of war or other emergency in international relations ". The threshold required for 
substantiation would be low and appropriate to the factual situation but would need to be more than WT/DS512/R/Add.1  
 
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  a simple assertion that Article XX I is invoked.  A complete lack of substantiation would be grounds 
for finding that use of the Article is not justified.  
6. Information required to substantiate the good faith belief of a Member invoking Article XXI 
that the action was "taken in a time of wa r or other emergency in international relations ", will depend 
on the case.  If the situation is self -evident and there is a general awareness among a broad number 
of States of the "emergency in international relations ", it is possible a reference or brief d escription 
will suffice.  A strong indication of such awareness would be consideration of the situation by relevant 
multilateral fora, notably the United Nations Security Council.  In other cases the invoking Member 
may need to provide more information.  The panel would be able to act pursuant to DSU Article 13 
to seek information.  However, in so doing the panel should exercise caution appropriate to the 
subject matter and be cognizant of the high level deference to be accorded to the Member invoking 
Article X XI. 
7. Depending on the case, evidence that could be considered with regard to the requirement that 
the invoking Member believes in good faith that the action taken was necessary for the protection 
of its essential security interests includes, in no partic ular order, and is not limited to: records of 
consideration in the invoking Members' legislature, speeches from the leader or other high -ranking 
government members of the invoking Member, language contained in the measure that indicates 
the measure's purpo se, documents that accompany the measure that were produced as part of the 
invoking Member's legal processes to institute the measure, decisions of courts in the invoking 
Member's territory, decisions of international courts or international dispute settle ment mechanisms, 
documentation from other relevant international fora, and news reports from media outlets.  
D. Articles XXI(a) and (b) must be interpreted in good faith and read 
harmoniously so as to give effect to both paragraphs  
8. It is very difficult t o foresee a circumstance where reliance on Article XXI(a) could be used to 
nullify the requirement to provide substantiation of any sort under Article XXI(b).  It is equally difficult 
to foresee a situation where a Member would have no information whatsoeve r that falls outside the 
scope of paragraph (a) that could be presented as substantiation with regard to paragraph (b).  At 
the very least a Member would be able to offer information that is in the public domain.  The precise 
interplay of paragraphs (a) and (b) will depend on the case but the simultaneous existence of a 
requirement to substantiate under paragraph (b) and a requirement not to provide sensitive 
information under paragraph (a) demonstrates that the threshold for substantiation under paragraph 
(b) is low but not non -existent.  
II. ARTICLE V OF THE GAT T 1994  
9. Article V generally, and the notion of freedom of transit specifically, is an important element 
of the WTO trade regime, but the right to freedom of transit is not absolute.  While Article V:2, first 
sentence, declares that there shall be freedom of transit, the remainder of Article V, including the 
rest of Article V:2, sets out the limits that WTO Members may impose on this freedom without 
thereby violating the obligation it entails . The ordinary meaning of the term "freedom" must be 
interpreted in the context in which the term appears.  That context indicates that it is in fact subject 
to limitations, both within Article V:2 itself, and on the basis of the other paragraphs in Article  V. 
10. A measure that violates one of the other paragraphs of Article V would entail a consequential 
violation of the right set out in the first sentence of Article V:2.  The corollary to that conclusion, 
however, is that measures restricting traffic in tr ansit that comply with the requirements of those 
paragraphs would not constitute a violation of the first sentence of Article V:2, even though they 
may have the effect of impeding traffic in transit in some way.  
11. The panel in Colombia – Ports of Entry  referred to second element of the first sentence of 
Article V:2 as imposing a "limiting condition on the obligation".  According to that panel, "a Member 
is not required to guarantee transport on necessarily any or all routes in its territory, but only on 
the ones 'most convenient' for transport through its territory".  However, the panel did not address 
who determines whether a given route is "most convenient", or what criteria are to be used in 
making such a determination.  WT/DS512/R/Add.1  
 
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  12. The WTO Member through whose te rritory the traffic in transit wishes to pass cannot be the 
sole arbiter of which routes are "most convenient".  Granting such discretion solely to the transit 
state would render the freedom illusory.  However, it cannot be left entirely to the discretion of  the 
owner/shipper or carrier of the traffic in transit.  Governmental authorities have legitimate interests 
that should be taken into account when determining whether any particular route is "most 
convenient".  Whether a given route is "most convenient" can  therefore only be determined having 
regard to all of the circumstances relevant to the traffic in transit, including, for example, the 
"conditions of the traffic".  
13. The obligation in Article V:2, second sentence, is more stringent than a MFN obligation . The 
use of the term "no distinction" – as compared to the phrases, "treatment no less favourable" or 
"any advantage, favour, privilege or immunity granted…shall be accorded immediately and 
unconditionally…" – must be given proper meaning.  
14. The closed list in Article V:2 and the existence of the less stringent MFN obligation in Article 
V:5 suggest that the drafters intended for the two provisions to cover two different classes of 
measures: those that differentiated on the basis of the criteria set out i n the second sentence of 
Article V:2; and, those that differentiated on the basis of other criteria.  The drafters realized that 
drawing distinctions on the basis of the criteria enumerated in Article V:2 would be antithetical to 
the very notion of freedom of transit.  They were also aware that WTO Members can have legitimate 
reasons for drawing distinctions between traffic in transit.  Imposing a "no distinction" legal standard 
on measures other than those captured by the list in the second sentence of Articl e V:2 would 
represent an undue limitation on Members' sovereignty and right to regulate.  
15. The reference to "applicable customs laws and regulations" in Article V:3 should not be read 
to indicate that only measures that fall within the scope of this phra se can constitute legitimate 
constraints on traffic in transit in the sense of giving rise to "necessary" delays or restrictions.  A 
purposive reading suggests that Article V:3 provides a right for WTO Members to require that traffic 
in transit be registere d with their customs authorities but that the exercise of that right must not 
result in any unnecessary delays or restrictions.  Necessary delays or restrictions would appear to 
include the consequences arising from a failure on the part of the traffic in t ransit to comply with 
"applicable customs laws and regulations".  At the same time, there is nothing in Article V:3 that 
expressly limits permissible delays or restrictions to the application of customs laws and regulations.  
16. Canada disagrees with Ukrain e that Article V:3 creates a limited and conditional exception to 
the obligation in Article V:2 to provide freedom of transit. Canada would also oppose any suggestion 
that the initial burden of proof with respect to whether a given delay or restriction was  consistent 
with the stipulations in Article V:3, and therefore also consistent with the obligation to provide 
freedom of transit, should fall on the respondent Member in a dispute under Article V.  In Canada's 
view, the text of the provision does not suppo rt a finding that Article V:3 sets out an exception.  
Apart from the word "except", there are no textual or contextual indicators that the provision is 
meant to be an exception to an obligation.  In addition, Canada considers that characterizing a right 
as a "limited and conditional exception" gives undue weight to the notion of freedom of transit.  In 
its view, Article V:3, and Article V more generally, reflects a carefully negotiated balance between 
the legitimate interests of WTO Members to be able to ship their goods across the territory of other 
WTO Members in order to reach third country markets, and the undoubted rights of WTO Members 
through which such traffic passes to regulate such traffic for legitimate reasons.  
17. Ukraine points to Articles 11.6 an d 11.7 of the Agreement on Trade Facilitation (TFA) to 
support its interpretation of Article V:3.  Canada is of the view, however, that Article 11.7 of the TFA 
does not do so.  Article V:3 refers to delays and restrictions arising from putting "traffic in tr ansit 
under a transit procedure", which would include the formalities and documentation requirements 
that are part of entering the traffic at the proper customs house.  Article 11.7, however, concerns 
itself with delays and restrictions arising after the "g oods have been put under a transit procedure 
and have been authorized to proceed from the point of origination" in the Member whose territory 
is being transited.  Nothing qualifies the reference to delays and restrictions in Article 11.7 to delays 
or restri ctions arising specifically from the application of customs laws or regulations, and the 
reference to such delays or restrictions arising after the traffic in question has been put under a 
customs procedure suggests that such delays or restrictions could a rise from causes other than 
customs requirements.  WT/DS512/R/Add.1  
 
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  18. From an architectural standpoint, Ukraine argues that, for a measure to comply with Article 
V:4, it must also comply with Article V:3.  Canada disagrees that compliance with Article V:3 is a 
sine qua non  for compliance with Article V:4.  The two provisions set out distinct obligations, dealing 
with distinct aspects of the regulation of traffic in transit.  Both provisions also impose consequential 
limitations on the right to freedom of transit set out in Article V:2, first sentence.  
19. Ukraine argues that the scope of the term "regulations" as used in Article V:4 must be 
understood in the context of Article V:3, and should therefore be limited to same subset of measures 
permissible under that provision.  In other words, according to Ukraine, for a "regulation" to be 
"reasonable", it must pertain to compliance with "applicable customs laws and regulations", and 
must not result in "any unnecessary delays or restrictions".  
20. Canada disagrees with the Ukraine 's assertion that the reference to "regulations" in Article 
V:4 is limited to what is covered by the reference to "applicable customs laws and regulations" in 
Article V:3.  First, it is far from conclusive that the reference in Article V:3 to delays and res trictions 
is itself limited to the application of customs laws and regulations.  Second, Article V:4 itself refers 
to "all" regulations, without further qualifying the term.  Had the drafters intended the term 
"regulations" to be limited to "applicable custo ms laws and regulations", they could have drawn an 
explicit link to Article V:3 or they could have repeated the phrase "customs laws and regulations" in 
Article V:4.  They did not do so.  Third, t he drafters used different terms in the two provisions.  The 
use of different language – the word "on" in Article V:4 and the words "in connection with" in Article 
V:5 – must be presumed to be deliberate, and to be intended to signal a difference in scope between 
the two provisions.  Specifically, the use of different terms reflects a difference in the relationship 
between the enumerated measures and traffic in transit for the purposes of the two obligations.  This 
intent should be given effect by the Panel in interpreting and applying the two provisions.  Fourth, 
the phr ase "shall be reasonable, having regard to the conditions of traffic" would be redundant if the 
term "regulations" in Article V:4 was limited to "applicable customs laws and regulations", since 
those measures are already subject to a necessity requirement.  It seems highly unlikely that a 
regulation that results in an unnecessary delay or restriction could ever be considered reasonable.  
It seems equally unlikely that a regulation that results in a "necessary" delay or restriction would 
nevertheless be deemed  unreasonable.  
21. Canada also disagrees with Ukraine that compliance with Article V:3 is a necessary element 
to establish compliance with Article V:5.  In Canada's view, the two provisions contain distinct 
obligations and non -compliance with one does not e ntail consequential non -compliance with the 
other.  
22. In Canada's view, to demonstrate less favourable treatment under Article V:5, it would not 
suffice for a complaining party to show that the impugned measure draws a distinction between 
goods in transit  based on place of origin, departure, entry/exit or destination.  A long line of 
jurisprudence indicates that the phrase "treatment no less favourable" as used in Article III:4 of the 
GATT should be understood to require WTO Members to provide "equality of competitive conditions" 
or "effective equality of competitive opportunities" in their measures affecting trade.  Canada believes 
that this interpretive approach also applies in the context of the regulation of traffic in transit.  
23. In Korea – Various Meas ures on Beef , the Appellate Body rejected the panel's finding that any 
regulatory distinction that is based exclusively on criteria relating to the nationality or origin is 
incompatible with Article III, observing in paragraph 136 that "a measure according  formally 
different  treatment to imported products does not per se , that is, necessarily, violate Article III:4".  
The Appellate Body said in paragraph 137, "[w]hether or not imported products are treated 'less 
favourably' than like domestic products should  be assessed instead by examining whether a measure 
modifies the conditions of competition  in the relevant market to the detriment of the imported 
products".  
24. Canada considers that this guidance is equally relevant to the interpretation and application 
of the "treatment no less favourable" element in Article V:5.  A panel confronted with a claim that a 
measure is inconsistent with Article V:5 is required, not only to determine whether the regulatory 
treatment of traffic in transit originating in different  WTO Members differs or is the same, but also, 
and more importantly, whether that treatment modifies the conditions of competition in the relevant 
market to the detriment of traffic in transit from one WTO Member as compared to traffic in transit 
from anot her WTO Member.  WT/DS512/R/Add.1  
 
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  III. ARTICLE  X OF THE GATT 1994  
25. Article X:1 covers measures subject to Article V insofar as such measures are "[l]aws, 
regulations, judicial decisions and administrative rulings of general application" and are measures 
"affecting" the "transportation" of "products".  Article X:1 sets out two broad categories of measures.  
The second category comprises measures affecting "their" sale, distribution, transportation , 
insurance, warehousing inspection, exhibition, processing, m ixing or other use.  
26. Transportation is a key word in the second category.  The definition of "traffic in transit" in 
Article V:1 makes it clear that such traffic, by definition, involves the transportation of goods or 
products.  Thus, measures that affect  traffic in transit would be measures affecting the transportation 
of goods or products.  The second category also refers to measures affecting their t ransportation.  In 
Canada's view, the possessive pronoun "their" in the first sentence of Article X:1 canno t refer to 
"imports or exports".  It makes little sense, contextually, for the reference to "their… transportation" 
to cover only imports and exports.  If "their" in Article X:1 were interpreted to be limited to imports 
and exports, it would mean that WTO Me mbers are not under an obligation to publish measures 
regulating the transportation of domestic products, thus potentially frustrating other WTO Members' 
efforts to ensure that their exports are not treated in a manner that violates Article III:4.  
27. More generally, Article X:1 is concerned with transparency and the prompt publication of trade 
measures of general application.  It lists a broad range of measures that affect trade and are subject 
to the disciplines set out in other provisions of the GATT 1994 . This broad scope is also reflected in 
the title of Article X, which refers to publication of trade regulations generally, rather than to the 
publication of measures affecting imports and exports.  In Canada's view, it would be incongruous 
for the referenc e in Article X:1 to "their…transportation" to cover imports and exports only, when 
the coverage of the GATT as a whole, including Article V, goes well beyond this scope.  
 
 WT/DS512/R/Add.1  
 
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  ANNEX D -4 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA  
1. China  considers that this dispute raises significant issues regarding the invocation and 
interpretation of  Article XXI and Article V of the General Agreement on Tariffs and Trade 1994 (the 
GATT 1994) ，as well as the rights and obligations of WTO Members.  Therefore,  without prejudice to 
any party 's right and obligation under the covered agreements, China  explains  the fundamental 
question that whether a panel has jurisdiction to review a dispute  invoking  Article XXI of the GATT 
1994, and  offers comments to the Panel, in order to assist  the latter to make objective assessment 
for the dispute invoking Article XXI of the GATT 1994 . China  also provides some clarifications for the 
interpretation of Article V of the GATT 1994 . 
I. PANEL'S JURISDICTION TO REVIEW THE DISPUTE INVOKING ARTICLE XXI  OF THE GATT  1994  
2. China observers that the Dispute Settlement Body (DSB) sets up the terms of  reference of the  
Panel to this dispute1, pursuant to Article 7.1 and 7.2 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU) . These terms  of reference confirms the jurisdiction of 
the Panel to address the relevant provisions in the covered agreement cited by the parties to the 
dispute .  
3. As Chine notes, the Russia n Federation  invokes Article XXI of the GATT 1994  to defend 
Ukraine's claims of violation  in its First Writing  Submission2. Therefore, in China 's view, this Panel 
undoubt edly has the discretion to address Article XXI of the GATT 1994 , and examine  the relevant 
measures introduced by the Russia n Federation.  
4. China notes that certain WTO Member claims that '[the] Panel lacks the authority to review 
the invocation of Article  XXI and to make findings on the claims raised in this dispute '.3While China 
does not take any particular position on the factual aspects in this dispute, China respectfully 
disagrees with this view, referring to the observation  hereinabove.  
5. Furthermore , China opines that certain preparatory work of the GATT, including the 
discussions in Geneva in 1947 in connection with Article 94  (which was the relocation of the 
provisions now contained in  Article XXI  of the GATT  1994), and Decision concerning  Article XXI 
adopted on 30 November 1982  by GATT contracting parties, support that the measures under Article 
XXI of the GATT  1994 could be reviewed by the dispute settlement mechanism .  
II. THE GENERAL PRINCIPLE TO MAKE OBJECTIVE ASSESSMENT FOR THE DISPUTE INVOKING ARTICLE 
XXI  OF THE GATT  1994  
6. China understands that Article 11 of the DSU requests the Panel to 'make an objective 
assessment of the matter before it, including an objective ass essment of the facts of the case and 
the applicability of and conformity with the relevant covered agreements '. 
7. China has no intention to identify any specific  methodology for the objective  assessment of 
the dispute invoking Article XXI of the GATT  1994, but rather to offers comments for the general  
principle  to make such assessment, in order to assist the Panel to accomplish  its task.  
8. As China notes, t his is the first time a Panel is requested to rule on a defense based on Article 
XXI of the GATT 199 4. Despite the lack of jurisprudence from previous disputes , the preparatory 
work of the GATT demonstrates that, Article XXI of the GATT 1994 is a sensitive provision relating 
to the sovereignty and security interests of WTO Members , and potentially has a very broad scope 
                                                
1 Constitution of the Panel established at the request of Ukraine, WT/DS512/4, 7 June 2017.  
2 First Written Submission of the Russian Federation, para. 5. 
3 U.S. letter in Russia – Measures Concerning Traffic in Transit (DS512) , November 7, 2017 . 
 WT/DS512/R/Add.1  
 
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  of application which  allows Members to derogate from any other provision of the covered 
agreements . 4 
9. Therefore, China opines that the Panel should keep extreme  caution during the assessment, 
by maintain ing the delicate balance for the following aspects. On the one hand, any abuse of  Article 
XXI of the GATT 1994 , which leads to the  evading of the obligation in bad faith under the covered 
agreements, shall be prevented. On the other hand, Member 's rights to protect its essential  security 
interests shall not be nullified  or impaired, and Member 's discretion relating to its own security  issue, 
which is authorized  by the covered agreement, shall not be prejudiced . 
10. China also views 'Good Faith ' as another fundamental issue for the objective assessment. 
China opines that, should a WTO member intend to take any action, which it considers necessary 
for protection of its essential security  interests5, in according to Article XXI of the GATT  1994, it 
should adhere to  the principle of good faith sustainedly .  In China 's view, the faithful fulfill ment of 
its obligations and commitments under the covered agreements by WTO Member constitutes a 
legitimate foundation for the invocation of Article XXI of the GA TT 1994.  
III. INTERPRETATION OF THE  ARTICLE V:2  OF THE GATT  1994 , FIRST SENTENCE  
11. China notes that the previous jurisprudence provides  a full explanation of Article V:2  of the 
GATT  1994, first sentence .6Such interpretation identifies  that the substantive  obligation of the Article 
V:2 of the GATT  1994, first sentence is 'freedom of transit ', and the 'via the routes most convenient ' 
imposes a limiting condition of the substantive  obligation. Former Panel further interprets 'freedom 
of transit ' as  
'extending  unrestricted access via the most convenient routes for the passage 
of goods in international transit  whether or not the goods have been trans -
shipped, warehoused, break -bulked, or have changed modes  of transport '.7 
In other words, pu rsuant to Article V :2 of the GATT  1994, first sentence , WTO Member across whose 
territory goods are transiting is obliged to facilitate convenience to traffic in transit to other  WTO 
Members, in order to expand the trade of goods . 
12. China opines  that, 'the routes most convenient ' should be interpreted from two aspects. On 
the one hand, the route is convenien t for relevant interested parties  (such as owner/shipper or 
carrier of the goods) to facilitate the traffic in transit . On the other hand, th e route is also convenien t 
for the WTO Member across whose territory goods are transiting to maintain its legitimate rights, 
since this issue is highly  related  to the sovereignty of the latter, which  has legitimate authorization  
to control the specific tra jectory for transit with in its territory. Hence, Panel is advised to take 
deliberative  consideration of this issue as an ex ante approach  to make the interpretation of the 
Article V:2 of the GATT  1994, first sentence.  
13. Regarding 'routes most convenient ', China does not agree with Japan that 'Article V:2  of the 
GATT  1994, first sentence requires that a complainant first make a prima facie  case that there is a 
more convenient route than the designated one '.  
14. In China 's view, if a complainant alleges  that a WTO Member does not facilitate  freedom of 
transit via the routes most convenient  pursuant to Article V:2  of the GATT  1994, first sentence , it 
might imply the existence of another more convenient route  to accomplish such traffic in transit . 
Neverthe less, in order to make a prima facie  case, the complainant is neither required to identify  
such 'most convenient route for traffic in transit ', nor to make  comparison  between the route which 
has been challenged and the route which is more convenient .  
15. This understanding is also supported by the previous jurisprudence.8 According to such 
finding, former Panel recognized that the key measure which constitutes the inc onsistency of Article 
V:2 of the GATT  1994, first sentence , is that Colombia  limited  the modes of transport  for the traffic 
                                                
4 EPCT/A/PV/33, p. 20 -21 and Corr.3; see also EPCT/A/SR/33, p. 3.  
5 .GATT 1994, Article XXI (b) chapeau.  
6 Panel Report, Colombia – Ports of Entry , para. 7. 399-400. 
7 Panel Report, Colombia – Ports of Entry , para. 7. 401. 
8 Panel Report, Colombia – Ports of Entry , para. 7. 423. WT/DS512/R/Add.1  
 
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  in transit into trans -shipment, but not that Colombia  did not facilitate  the traffic in transit via routes 
most convenient . In this regard, the limitation of the mode of transport  could be understood as a 
substantive  violation of the 'extending unrestricted access  via the most convenient routes for the 
passage of goods in international transit '.  
 
 WT/DS512/R/Add.1  
 
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  ANNEX D -5 
EXECUTIV E SUMMARY OF THE ARG UMENTS OF THE EUROPEAN UNION  
 
I. INTRODUCTION  
1. The European Union makes these third party submissions because of its systemic interest 
in the correct and consistent interpretation and application of the GATT 1994.  
II. THE EU'S SUBSTANTIVE COMMENTS   
A. Ukraine has made a prima facie  case that the measures at issue are inconsistent with 
various provisions of the GATT 1994  
2. The European Union considers that Ukraine has shown in a compelling way that the various 
measures at issue are inconsistent with the various provisions of the GATT 1994 cited by 
Ukraine, including, in particular, Article V of GATT 1994.   
3. The European Union notes that Russia does not appear to contest that the four measures at 
issue are inconsistent, in  principle, with the provisions cited by Ukraine. The European Union 
would observe, in relation to the first issue, that the mere fact that the product scope of the 
second measure encompasses that of the first measure does not have the necessary 
implicatio n that the second measure has superseded the first measure and that this measure 
therefore ceased to exist. It is not uncommon that the importation or entry of a category of 
products be subject simultaneously to various restrictions based on different grou nds. Russia 
has not explained on which legal base, or through which legal mechanism, the second 
measure at issue would have superseded the first measure . 
B. Russia's invocation of the security exceptions  
Justiciability of Article XXI of GATT 1994  
4. Russia , with the support of the United States, alleges that Article XXI is not a justiciable 
provision. The EU disagrees. Article XXI is an affirmative defence. It may be invoked to 
justify an otherwise WTO inconsistent measure. It does not provide for an except ion to the 
rules of jurisdiction laid down in the DSU. Interpreting Article XXI as a non -justiciable 
provision would make it impossible for the Panel to fulfil its task under Article 11 of DSU. 
The "matter" before the panel includes Article XXI as raised b y Russia.  
5. If Article XXI was interpreted as a non -justiciable provision, a WTO Member, rather than the 
DSB, would be deciding the outcome of a dispute unilaterally. This would question the "rules -
based" approach to international trade. Non -justiciabilit y of an international dispute amounts 
to a lack of jurisdiction. In the rules -based framework of the WTO, the legal operability of 
Article XXI of GATT 1994 rather revolves around the concepts of standard of review and 
discretion.  
6. Therefore, the concept of justiciability and the concept of discretion (linked to the Panel's 
standard of review) need to be distinguished. The rules of the GATT, including Article XXI 
are justiciable with the DSB being the ultimate arbiter. Some rules may grant WTO Members 
discretion. Article XX (a) as interpreted by the Appellate Body in EC – Seal Products  is a 
ready example. Article XXI is another example. Yet, the jurisdiction over the question 
whether a Member remained within its discretion unequivocally rests with the DSB.  
Burden of proof  
7. A WTO Member that invokes Article XXI (b) (iii) bears the burden of proof. Russia has failed 
to meet its burden of making even a prima facie  case. Neither has it explained the legal test 
that it deems appropriate, nor has it adduced any facts which would allow the Panel to make 
findings. Russia limits itself to citing various unilateral statements from Contracting Parties 
to the GATT 1947 but fails to shed light on the relevance of these statements under Articles 
31 and 32 of VCLT.  
8. A party invoking an affirmative defence Russia has the onus probandi . Russia's vague 
allusion to unspecified events in 2014 is not sufficient to meet its burden of proof under WT/DS512/R/Add.1  
 
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  Article XXI(b)(iii). It is not the Panel's role to second guess and specify the eve nts to which 
Russia refers to as the emergency in international relations that occurred in 2014, notably 
because some of the measures were adopted after 2014. Article 13 of DSU gives the Panel 
the right to seek information from any relevant source. However , a panel is not entitled to 
make the case for the party failing to satisfy its burden of proof.  
9. The required degree of specificity in identifying the essential security interests is linked to 
the standard of review applicable in respect of each of the elements of Article XXI(b). The 
invoking Member is required to identify the invoked interest with the degree of specificity 
that is necessary for the Panel to ascertain whether it is plausible that the invoked interest 
is one of security as opposed to pure ly economic and whether it is important enough to 
qualify as essential.  
10. Several third parties have expressed views that the Panel should review whether a Member 
invoking Article XXI(b) honestly considers, or believes in good faith, that the action take n 
was necessary for the protection of its essential security interests. It remained unclear in 
the respective third party submissions how the Panel should assess such an elusive 
requirement. Subjective intent is not only difficult to establish, the object of Article XXI is 
not the punishment of a WTO Member lack of honesty. Rather, Panels must review whether 
the invoking Member can plausibly consider that the measure is necessary in order to 
prevent abuses. To this end, it is necessary to examine objective factors. According to the 
Appellate Body in EC – Seal Products  a panel must take account of all evidence put before 
it in this regard, including the texts of statutes, legislative history, and other evidence 
regarding the structure and operation of the mea sure at issue. While made in the context of 
Article XX, the underlying idea of this statement can be transposed to Article XXI. At any 
rate, the characterisation of a Member's measure under municipal law is not dispositive as 
the Appellate Body confirmed i n US — Large Civil Aircraft (2nd complaint)  and Canada — 
Renewable Energy / Canada — Feed-in Tariff Program . 
11. The Panel cannot determine whether Russia's assertion that the action it took was necessary 
for the protection of its essential security intere sts was reasonable or plausible without 
Russia having indicated what its "essential security interests" are.  
12. Contrary to what Russia maintains, the EU fails to understand how Article XXI(a) can exempt 
Russia from meeting its burden of proof under Artic le XXI(b). Like Article XXI(b), Article 
XXI(a) is also a justiciable provision. Discretion accorded under it is not unlimited.  
13. The EU acknowledges that information relating to essential security interests is of a highly 
sensitive nature, but the compl ainant is expected at a minimum to explain in sufficient detail 
why such information cannot be shared with the Panel. There is nothing that would prevent 
a panel, if necessary, from adopting appropriate procedures to deal with sensitive 
information in case s involving the invocation of Article XXI. At any rate, even if Russia was 
justified in not providing certain information pursuant to Article XXI(a), that would not 
discharge Russia from its burden of proof in relation to Article XXI(b).  
Legal standard for  the interpretation and application of Article XXI(b)(iii) of GATT 1994  
14. The analytical framework developed by the Appellate Body for applying Article XX provides 
useful guidance for interpreting and applying Article XXI. Article XX of GATT requires a " two-
tiered analysis". Since Article XXI does not contain a chapeau , the analysis is limited to the 
first tier. Under Article XX, this analysis requires, first, that the measures "addresses the 
particular interest specified in [the sub]paragraph" and, secon d, that "there [is] a sufficient 
nexus between the measure and the interest protected." The analysis under Article XXI 
should address these very elements keeping in mind the general principle of good faith 
enshrined in Article 26 of VCLT.  
The first element  of the analysis under Article XXI(b)(iii)  
15. Under the first element, the defending party has the burden of demonstrating that the 
measure is taken "in time of war or other emergency in international relations", that it has 
"essential security interests"  with respect to the war or other emergency in international 
relations, and that the measure is designed "for" the protection of the relevant essential 
security interest. The panel has to ascertain whether a situation of "war" or of "other 
emergency in int ernational relations" exists in a given case. Article XXI is different in this 
respect from, for example, Article 3 of OECD Code of Liberalisation of Capital Movements, WT/DS512/R/Add.1  
 
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  which refers to "the protection of [a Member's] essential security interests", without any 
further specification.  
16. The terms "which it considers" in Article XXI do not qualify the terms "war or other 
emergency in international relations" but only the term "necessary". Subparagraphs (i) to 
(iii) refer to "action" and not to "it considers". A different reading would lead  to the absurd 
result that a Member could unilaterally define pigs as fis sionable materials in paragraph  (i).  
17. Hence, the existence of a "war or other emergency in international relations" refers to 
objective factual situations that can be fully review ed by panels. Both terms should be 
interpreted taking into account relevant international law. "War" describes a situation when 
one or more States have used armed force against each other. The notion of "emergency in 
international relations" is broader tha n that of "war". War is one particular example of 
emergency. The latter thus has to be of significant intensity also in the absence of a war.  
18. The terms "taken in time" require a sufficient nexus between the action taken by the 
invoking Member and an o ngoing situation of war or emergency in international relations. A 
mere temporal coincidence between both does not suffice, as it would allow for the adoption 
of measures entirely unrelated to the war or emergency. This would also be inconsistent 
with the term "protection" included in the chapeau  of Article XXI (b), which implies the 
existence of a threat to which the action of the invoking Member responds.  
19. The terms "its essential security interests" should be interpreted in such a way as to allow 
Members to identify their own security interests and the desired level of protection without 
having the Panel second -guess the value judgment as to the legitimacy of the interest. At 
the same time, not any interest will qualify under this exception. The in terest must relate 
genuinely to "security" and be "essential". Purely economic interests or security interests of 
minor importance would not qualify. Based on the reasons provided by the invoking Member, 
a panel should review whether the interests at stake  can reasonably/plausibly be considered 
to be "essential security" interests, from that Member's perspective, so as to be able to 
detect abuses of this exception. Security interests may vary in time and space. Article XXI 
cannot be used to circumvent the r equirements of Article XX.  
20. Finally, the invoking Member must show that the action is "designed" to protect the relevant 
essential security interest from the threat posed by the situation of war or other emergency 
in international relations.  
The second element of the analysis under Article XXI(b)(iii)  
21. The second element in the analysis under Article XXI is whether the measure is "necessary". 
In the context of Article XX, the Appellate Body has explained that determining the 
"necessity" of a measure i nvolves "a process of weighing and balancing […] a series of 
factors" in particular the relative importance of the objective pursued by the measure, the 
contribution of the measure to that objective, and the restrictive effect of the measure on 
internation al trade. In general, a challenged measure should be compared with reasonably 
available alternative measures that are less trade restrictive, while making an equivalent 
contribution to achieving the desired level of protection of the relevant objective.  
22. The term "necessary" in Article XXI(b) must be given the same meaning as in Article XX. 
However, the terms "which it considers" imply that, in principle, it is for each Member to 
assess by itself whether a measure is "necessary". Again, this does not giv e the Member 
unfettered discretion. However, a panel's review should give deference to the invoking 
Member. The review should be limited to assessing whether the invoking Member can 
plausibly consider the measure necessary and whether the measure is applie d in good faith. 
Since the invoking Member bears the burden of proof, it must provide the panel with an 
explanation of why it has considered the measure necessary in light of the factors mentioned 
above.  
23. This "plausibility test" finds support in the d ecisions reached by the adjudicators in other 
contexts. For example, when the arbitrators had to interpret Articles 22.3(b) and 22.3(c) of 
DSU, which both start with the phrase "if that party considers"; or when the International 
Court of Justice interpret ed the terms "if it considers" in Article 2 (c) of the Convention on 
Mutual Assistance in Criminal Matters between the Djiboutian Government and the French 
Government of 27 September 1986 they did not consider those provisions as giving absolute 
discretion  to the party invoking them, because the exercise of discretion remained subject 
to the principle of good faith.  WT/DS512/R/Add.1  
 
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  24. Notably, the Panel should ascertain whether the interests of third parties who may be 
affected were properly taken into consideration, as required by the preamble of the Decision 
of 30 November 1982.  
C. Certain aspects relating to transit  
25. Article V:2, first sentence, is not confined to a single route that is deemed "the most 
convenient" for international transit. This understanding can b e derived from the use of the 
plural (routes) as opposed to the singular (route) and several other considerations.  
26. First, for Members with large territories and long common borders departure points A and B 
on the territory of the Member of origin may b e thousands of kilometers apart, as well as 
the points of arrival on the territory of the Member of destination. In between there may be 
a transited Member sharing hundreds (if not thousands) of kilometers of borders with both 
the Member of origin and the Member of destination. For instance, were Kazakhstan to 
require Russian carriers to take only one route that is deemed the most convenient for 
international transit through Kazakh territory towards Tajikistan, carriers from both 
Volgograd and Novosibirsk w ould be restricted to taking this route. The ensuing necessity 
for detours on Russian territory would clearly amount to a barrier to trade. Moreover, the 
restriction of individual market actors to one single transit route hardly aligns with the 
concept of "freedom" embodied in Article V:2.  
27. Second , other factors may also play a role in determining "the most convenient routes": the 
mode of transport (by road, by rail, by water, by air, pipelines) and the specificity of different 
types of goods that are in  transit.  
28. The "routes most convenient for international transit" should be determined on a case by 
case basis, taking into account objective factors. Otherwise, a WTO Member could 
undermine the freedom of transit through the designation of what it itse lf deems the most 
convenient routes. In objective terms, the determination may depend upon the total number 
of transit routes, their varying convenience for international transit from the perspective of 
a reasonable trader, taking into account criteria suc h as distance, time, safety, road and 
infrastructure quality.  
29. Regarding the extent of freedom of transit, the Panel in Colombia – Ports of Entry  noted that 
in "light of the ordinary meaning of freedom and the text of Article V:2 … the provision of 
‘freedom of transit’ pursuant to Article V:2, first sentence requires extending unrestricted 
access via the most convenient routes for the passage of goods in international transit". 
Accordingly, Article V:2, first sentence not only requires the availability o f the most 
convenient routes but also the absence of restrictions for using these routes.  
30. Finally, with regard to the Panel's question concerning indirect transit routes the EU notes 
that in practice the absence of a direct transit route that figures among the "routes most 
convenient for international transit" is hardly conceivable. It requires a very unique 
geographical condition. The present case does not involve Members in such a condition. The 
EU does not see how the detour through Belarus of Ukrai nian carriers having as countries 
of destination Kazakhstan, the Kyrgyz Republic and other third countries in the region may 
qualify as a route "most convenient for international transit."  
31. While there may be some overlap between Article V:2, first sent ence, and the remaining 
provisions of Article V, this does not allow the generic conclusion that a finding of violation 
of Article V:2, first sentence, will necessarily follow from a finding of violation of any of the 
other paragraphs of Article V. Article  V:2, first sentence, requires extending unrestricted 
access via the most convenient routes for the passage of goods in international transit. The 
panel in Colombia – Ports of Entry  found that Article V:2, second sentence complements and 
expands upon the o bligation to extent freedom of transit in Article V:2, first sentence. Article 
V:6 has a different scope of application. Unlike Article V:2, first sentence, it also applies to 
imports to the country of final destination. In any event, the Panel need not, a nd should not 
decide in the abstract this question.  
32. Article V:2, second sentence, outlaws distinctions based on criteria such as the flag of 
vessels or the place of origin. It adds to the discipline of Article V:2, first sentence.  
33. The requirement in Article V:3 that traffic in transit "shall not be subject to any unnecessary 
delays or restrictions" applies specifically with regard to delays or restrictions resulting from 
customs laws or regulations. It is introduced by the conjunction "but" and  thus appears to 
qualify the opening sentence of Article V:3, which provides that a Member may require that WT/DS512/R/Add.1  
 
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  traffic in transit "be entered at the proper customs house". Moreover, it is subject to just 
one exception relating to the "cases of failure to comply w ith applicable customs laws and 
regulations".  
34. The regulations addressed in Article V are subject to Article X under the same conditions as 
other types of trade regulations. It would be surprising indeed, if transit regulations (alone 
among all trade re gulations) could be adopted without being published promptly in such a 
manner as to enable governments and traders to become acquainted with them, or if they 
could be administered in a selective, partial and unreasonable manner without any domestic 
legal r ecourse. The lacking express reference to transit in Article X is not conclusive. The 
terms "Trade Regulations" in the title of Article X cover transit measures. The extensive 
enumeration of measures in the first sentence of Article X:1  reflects the drafte rs' intention 
to include a wide range of measures that potentially affect trade. Article X:1 refers to 
"requirements … affecting their transportation" with "their" relating to "products" as the 
French text makes clear: "le transport de ces produits". Moreo ver, in the specific context of 
Article X the terms "imports" can be reasonably interpreted as covering any goods that enter 
physically into the territory of the Member concerned, whether or not they are released for 
free circulation after being cleared th rough customs. Article X is in the nature of a horizontal 
provision laying down certain general requirements which apply always in addition to those 
stipulated elsewhere in the GATT with regard to the various types of trade measures 
mentioned in Article X( 1). The cumulative application of Article V and X to regulations 
governing traffic in transit does not create any conflicts.  
III. CONCLUSIONS  
35. The EU hopes that these contributions will be helpful to the Panel.  
 
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  ANNEX D -6 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN  
I. ARTICLE V OF THE GATT  1994  
1．Article V:2, First Sentence: "Freedom of Transit "  
1. Article V:2, first sentence establishes free dom of transit for WTO Members.  Japan understands 
Ukraine 's ultimate claim to be that a measure that completely prohibits traffic in transit through the 
territory of a WTO Member will be prima facie  inconsistent with the Article V:2 obligation to ensure 
freedom of transit via the routes most convenient for intern ational transit.1 Japan understands that 
a measure that blocks all access into the territory of a WTO Member would likely be inconsistent 
with Article V:2 unless the measure is justified on a basis other than Article V of the General 
Agreement on Tariffs a nd Trade  ("GATT 1994 "). 
2. Japan cautions, however, against an overly expansive view of the freedoms provided in Article 
V:2. Ukraine argues that the "passage [of goods and means of transport across a WTO Member 's 
territory] must…be free of any restriction  or constraint. "2 Ukraine also argues that Article  V:2 
"precludes WTO Members from banning traffic in transit via the most convenient routes or from 
otherwise restricting such traffic. "3 In this regard, Japan wou ld like to clarify that Article  V:2 of GATT 
1994 does not imply unqualified, unrestricted access, but only ensures freedom of transit in traffic 
via the routes most convenient  for international transit.4 So long as a WTO Member ensures access 
through the "most convenient " route s through its territory, Article V:2 does not prohibit a WTO 
Member from otherwise restricting access with respect to traffic in transit.  
2. Article V:2, First Se ntence  : "Routes Most Convenient "  
3. Japan provides several observations on the interpretatio n of Article V:2, first sentence.  First, 
as Ukraine recognizes, "[t]he requirement to ensure freedom of transit as regards traffic in transit  
… is qualified by the phrase 'via the routes most convenient for international transit '."5 Japan agrees 
that the t erm "for" in the phrase "the routes most convenient for international transit " indicates that 
the routes must be most convenient in order for international transit to occur.6  
4. Second, Japan notes that the text of Article V:2 provid ing for "routes  most c onvenient, " implies 
that there may be more than one route that must be made available for traffic in transit . However, 
even when there are more than one routes that are considered "most convenient, " Japan does not 
agree with Ukraine that the first sentence of Article V:2 guarantees the transiting WTO Member a 
choice  between such routes.7  
5. Third, as regards the burden of proof, the general rule in WTO dispute settlement procedures 
is that the compl ainant is required to first make a  prima facie case of its claim.8 In this situation, 
the complainant is required to first make a prima facie  case that the freedom of transit ensured 
under Article V:2, first sentence is violated by another Member 's measure  that fails to provide access 
to transit "via the routes most convenient for international transit. " As part of making this prima 
facie case, it is Japan 's view that the complainant must show that there is a more convenient route 
to which the complainant d oes not have access.  A mere assertion that there is a "more convenient " 
route will not suffice to make this prima facie  case. Once the complain ant has identified other routes 
that it believes to be more convenient that the one(s) available to it, it is the  WTO Members through 
                                                
1 Ukraine’s First Written Submission, paras. 239 -240. 
2 Ukraine’s First Written Submission, paras. 207 -210. (emphasis added.)  
3 Ukraine’s First Written Submission, para. 222. (emphasis added.)  
4 See, for example , Panel Report, Colombia – Ports of Entry, para 7.401  and 7.414; Ukraine’s First 
Written Submission, para. 211.  
5 Ukraine’s First Written Submission, para. 211.  
6 Ukraine’s First Written Submission, para. 213.  
7 See Ukraine’s First Written Submission, para. 213.  
8 See for example, Appellate Body Reports, US – Wool Shirts and Blouses, pp. 13-14, and  EC – 
Hormones , para 98.  WT/DS512/R/Add.1  
 
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  whose territories transit occurs that are in the best position to provide an explanation as to why the 
routes proposed by the complain ant are not "the routes most convenient for international transit. "   
6. Fourth, Japan notes that Art icle V:2 envisions some  access through the territory of each WTO 
Member.  Therefore, if a WTO Member does not allow freedom of transit through any routes in its 
territory, it is Japan 's view that by establishing that the measure at issue does, in fact, bloc k all 
access to the territory of a WTO Member including access "via the routes most convenient for 
international transit ," the complaining Member would have met its prima facie  burden.  It is then up 
to the WTO Member whose territory the complaining Member seeks access to explain why its 
measure complies with its obligation under Article V:2.  
7. Finally, the determination of whether a specific route is "most convenient " should take account 
of such objective factors as the means of transit,  available routes, distances or costs.  To that extent, 
Japan agrees that the WTO Member through whose territories transit occurs cannot decide the most 
convenient routes for international transit "unilaterally and subjectively. "9 In this regard, Japan 
agrees that a "[WTO] Member does not enjoy absolute discretion to decide what is the most 
convenient route for certain international transit. "10 Similarly, the question as to whether a Member 
across whose territory goods are transiting may require that transit  from a neighbouring Member 
not proceed directly across their mutual border, but through another country, without  violat ing 
Article V:2, first sentence , should be addressed on a case -by-case basis, taking into account these 
objective factors.  
3. Article V: 2, Second Sentence   
8. In Japan 's view, Ukraine errs to the extent it considers that the first sentence of Article V:2 
articulates an overarching principle that is supported by the second sentence of Article V:2, such 
that a measure inconsistent with the s econd sentence entails a violation of the first sentence.11 In 
Japan 's view, the second sentence of Article V:2 of GATT 1994 has its own function and meaning 
independent from the first sentence of Article V:2.  
9. As the panel in Colombia －Ports of Entry  noted, "the second sentence [of Article V:2] 
complements and expands upon the obligation to extend freedom of transit [.]"12 Article V:2, second 
sentence sets out WTO Members ' obligation to accord freedom of transit "via the routes most 
convenient for international transit ", regardless of the flag of vessels; the place of origin, departure, 
entry, exit or destination; or on any circumstances relating to the ownership of goods, of vessels or 
of other means of transport.    
10. Japan agrees that what shoul d be compared under Article V:2, second sentence is not limited 
to distinctions made in the treatment of traffic in transit based on the origins of the goods transiting, 
but also distinctions based on (i) the flag of vessels, (ii) the place of origin, depa rture, entry, exit or 
destination, or (iii) any circumstances relating to the ownership of goods, vessels or other means of 
transport.13 In addition, it is the objective structure, design and operation of the measure, and not 
the subjective judgment of the  Member imposing the measure at issue, which shall be examined to 
conclude whether there is any distinction made. Japan respectfully requests that the Panel carefully 
examine whether any comparison made under Article V:2 , second sentence,  accurately compar es 
the treatment of traffic in transit based on the same criterion ( e.g., place of origin, departure, entry, 
exit or destination, etc.).  
4. Relationship between Article V:2 and Other Paragraphs of Article V  
11. Japan does not agree with Ukraine that paragraphs 3, 4, 5 and 6 of Article V of the GATT 1994 
are a specific application of the basic obligation to guarantee freedom of transit in the first sentence 
of Article V:2 of the GATT 1994.14 Specifically, Ukraine errs in arguing that "if a measure is f ound to 
be inconsistent with [paragraphs 3, 4, 5, 6 or 7 of Article V], by implication, that conclusion entails 
                                                
9 Ukraine’s First Written Submission, para. 21 5. 
10 Ukraine’s First Written Submission, para. 21 5. 
11 See Ukraine’s First Written Submission, para. 262.  
12 Panel Report, Colombia – Ports of Entry , para. 7.397.  
13 Ukraine’s First Written Submission, para. 269.  
14 See Ukraine’s First Written Submission, para. 196.  
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  that the measure is also inconsistent with the obligation to guarantee freedom of transit laid down 
in the first sentence of Article V:2. "15 In Japan 's view, there is no basis to conclude that a violation 
of paragraphs 3 -7 of Article V is sufficient "to conclude that there is also a violation of the first 
sentence of Article V:2. "16 
12. As the panel in  Colombia – Ports of Entry  stated, "Article V of the GATT 1994 … generally 
addresses matters related to 'freedom of transit ' of goods.  This includes protection from unnecessary 
restrictions, such as limitations on freedom of transit, or unreasonable charges or delays (via 
paragraphs 2 -4), and the exte nsion of Most -Favoured -Nation (MFN) treatment to Members ' goods 
which are 'traffic in transit ' (via paragraphs 2 and 5) or 'have been in transit ' (via paragraph 6). "17 
Thus, each paragraph includes separate transit requirements and obligations that must be  met by 
each WTO Member , and a finding of non -conformity with any other paragraph of Article V does not 
necessarily result in non -conformity with Article V:2, first sentence . 
II. ARTICLE XXI  OF THE GATT  1994  
13. Article XXI, paragraph (b) of the GATT 1994 allows WTO Members to derogate from their 
obligations under other provisions of the GATT 1994 when they consider it necessary to adopt 
measures to protect their essential security interests.  Along with similar security exceptions clauses 
in the GATS a nd TRIPS Agreement,18 GATT Article XXI is an extraordinary provision in that it 
recognizes the  vital importance of WTO Members ' essential security interests, and the fundamental 
nature of a Member 's sovereign right to pursue such vital interests . This is  reflected in the deferential 
language  of Article XXI.   
14. As an initial matter, Japan believes that consideration of Russia 's Article XXI  defense is within 
the Panel 's terms of reference in this dispute.  This is in contrast to the case involving the United  
States ' trade embargo against Nicaragua in 1985, where the GATT panel was precluded from 
examining the validity of the United States ' invocation of Article XXI of the General Agreement by 
its terms of reference.19 The terms of reference adopted in that di spute placed strict limits on the 
panel 's activities, stipulating that the panel could not examine or judge the validity of, or the 
motivation for, the invocation of Article XXI(b)(iii) by the United States.20 The standard terms of 
reference, which were adopted by the Panel in the present dispute, contain no such restrictions.21 
15. A proper interpretation of Article XXI of the GATT 1994 must begin with the ordinary meaning 
given to the terms of the treaty, pursuant to Article 31 of the Vienna Conven tion on the Law of 
Treaties  ("Vienna Convention "). In this respect, Japan notes that Article XXI of the GATT 1994 does 
not contain qualifier s that expressly limit a Member 's consideration in determining what actions are 
necessary to defend its essential se curity interests in the circumstances set out in the Article.  This 
is clear from the use of the phrase "which it considers necessary " in the text of the Article, as well 
as the absence of any qualifying language limiting a Member 's consideration, such as t hat found in 
the chapeau of Article XX.   
16. That said, Japan also notes that Article 31 of the Vienna Convention requires treaties to be 
interpreted "in their context and in the light of its object and purpose. " Therefore, the rights afforded 
to Members u nder Article XXI of the GATT 1994 must be viewed in light of the object and purpose 
of the GATT 1994, which is "the substantial reduction of tariffs and other barriers to trade " and "the 
elimination of discriminatory treatment in international commerce " as enshrined in its preamble.  
Japan 's view is that the object and purpose of the GATT 1994, logically prohibits the invocation of 
Article XXI in a manner that frustrates the objective of the GATT 1994 , including trade liberalization , 
without a justifiable re ason.  To interpret otherwise would defeat the object and purpose of the GATT 
1994.  
17. This view is bolstered by the preparatory work of the original Draft Charter in accordance with 
                                                
15 See Ukraine’s First Written Submiss ion, para. 198.  
16 See Ukraine’s First Written Submission, para. 224.  
17 Panel Report, Colombia – Ports of Entry , para. 7.387.  
18 GATS Article XIV bis; TRIPS Agreement Article 73. 
19 L/6053 (unadopted) , paras. 5.1 -5.3. 
20 Ibid. 
21 WT/DS512/4 and WT/DS512/3.  
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  Article 32 of the Vienna Convention, which provides for recourse to prep aratory work of a treaty as 
a supplementary means of interpretation in order to confirm the meaning resulting from the 
application of Article 31.  Drafters  noted the need to permit "measure which are needed purely for 
security reasons, " but recognized the r isk that, "under the guise of security, countries will put on 
measures which really have a commercial purpose. "22  
18. Indeed, the risk of abuse of Article XXI of the GATT 1994 has been widely acknowledged 
throughout the years of the GATT and WTO.  This ack nowledgement has been embodied by the 
Ministerial Declaration of November 1982 , in which Members  undertook "individually and jointly:… 
to abstain from taking restrictive trade measures, for reasons of a non -economic character, not 
consistent with the General Agreement. "23 In addition, the Decision Concerning Article XXI of the 
General Agreement  of 30 November 1982 established the procedural guidelines for the application 
of Article XXI of the GATT 1994 pending a decision on a formal interpretation of A rticle XXI.24 
19. In Japan 's view, in light of the object and purpose of the GATT 1994 and preparatory work of 
the Draft Charter as discussed above, the discretion accorded to the WTO Members in deciding the 
actions that they consider necessary to protect its essential security interests is not unbounded.   
20. Despite these guiding principles, Japan is mindful of the disagreement among WTO Members 
on the  interpretation  of Article XXI  of the GATT 1994 due to its far -reaching implications to the 
balance betwe en the rights and obligations of WTO Members.  As such, each instance in which Article 
XXI is invoked would impose undue burdens on the WTO dispute settlement system.  Moreover, an 
invocation of Article XXI of the GATT 1994 would import non -economic matters into the WTO, for 
which the WTO was not designed.   
21. Therefore, Japan considers that WTO Members should exercise considerable prudence in 
resorting to Article XXI  of the GATT 1994 . Before bringing a case or making a claim under Article 
XXI, Members shoul d consider whether its action under the WTO dispute settlement procedures 
would be "fruitful " and contribute to "a positive solution to a dispute " pursuant to Article 7 of the 
DSU. It is also Japan 's hope that the parties will exert every effort to seek a solution mutually 
acceptable to the parties in order to maintain the effective functioning of the WTO.  
22. In the following, Japan presents its views on several principles which  may guide the Panel in 
interpret ing and applying Article XXI.  First, i n review ing Russia 's defense , the Panel should pay due 
regard to the crucial importance of national security interests to WTO Members ' sovereignty, and 
grant appropriate deference to the Members ' judgement as to the necessity of taking actions  to 
protect their essential security interests.  Japan considers that  a Member invoking Article XXI(b) 
bears the burden of showing why its measures are justified by the provision , but will be given a 
degree of deference with respect to  its judgement that its action fal ls under Article XXI(b).  
23. Second, i t should also be noted that Article XXI  of the GATT 1994 , including  its subparagraph 
(b)(iii), carefully circumscribes the  situation s that would allow  WTO Members to invoke a defense 
based on each Member 's "essential s ecurity interests ." Taking  also into consideration the object and 
purpose of the GATT 1994 and the preparatory work of the Draft Charter, the discretion accorded to 
WTO Members in deciding the actions that are necessary to protect their essential security interests 
is not un bounded .  
24. Third, in order to justify a measure pursuant to Article XXI(b)(iii), it is not sufficient to merely 
invoke  the article . In Japan 's view, the invoking Member is required to identify its essential security 
interests and explain why it considers the action "necessary for the protection of its essential security 
interests " under  the introductory paragraph of Article XXI(b), as well as  how the requirements under 
Article XXI(b) as a whole are met.  The identification of the essent ial security interests needs to be 
specific enough to allow the Panel to assess whether there is a reasonable link or connection between 
the invoking Member 's decision to take the action and the essential security interests identified by 
that Member.   
25. Fourth, Japan notes that what is to be protected by the challenged measure is "its essential 
security interests " and not unqualified  "essential security interests ." Thus, whether the security 
                                                
22 EPCT/A/PV/3 3, p.20 -21 and Corr.3.  
23 L/5424.  
24 L/5426.  WT/DS512/R/Add.1  
 
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  interests are "essential " should be examined from the viewpoint of the Member taking the measure 
at issue, rather than that of any other Member.  
26. Finally, Japan notes that Article XXI(a) instructs that a Member is not obligated to furnish any 
information the disclosure of which  it considers contrary to its essential security interests.  Whereas  
the disclosure of  some  information related to a Member 's motivation of taking the action under 
Article XXI(b) may be understandably contrary to its essential security interests, it is prob able that 
the invoking Member could discharge its burden of proof to make its Article XXI(b) claim without 
compromising such information.  
27. In this regard, the Decision Concerning Article XXI  of the General Agreement of 30  November 
1982 (the "Decision ") affirms the will of the WTO Members  to ensure that they are informed "to the 
fullest extent possible  of trade measures taken under Article XXI ," even though  Members  are not 
required to disclose information contrary to their essential security interests pur suant to Article 
XXI(a).  
28. Were Article XXI(a) to be construed to effectively exempt Members from their burden of 
making its prima facie  case under Article XXI(b), it would run counter to the interpretation of Article 
XXI in light of the object and purpo se of the GATT 1994 and preparatory work of the Draft Charter 
in accordance with Articles 31 and 32 of the Vienna Convention.   
III. ARTICLE X OF THE GATT  1994  
29. Japan understands that "a measure covered by Article V ," which is adopted by a Member and 
includes certain elements that would regulate traffic and prohibit, restrict , or otherwise affect goods 
originating in or destined to that Member, can be subject to Article X as "a requirement, prohibition 
or restriction o n imports or exports. "  
30. The text of Article V indicates that a measure on "traffic in transit " covered by that article may 
involve, among others, "warehousing " (paragraph 1), "change in the mode of transport " (paragraph 
1), "charges for transportation " (paragraph 3), or charges "commensurate with administrative 
expenses entailed by transit or with the cost of services rendered " (paragraph 3). Similarly, Article 
X covers "[l]aws, regulations, judicial decisions and administrative rulings of general appli cation " 
which affect imports or exports with respect to, e.g. their "transportation " or "warehousing 
inspection ." 
31. Therefore, Japan considers that measures of general application relating to "traffic in transit " 
that are covered under Article V can cons titute "requirements, restrictions or prohibitions on imports 
or exports, " or measures affecting the "distribution " or "transportation " of such imports or exports.  
These measures would therefore be subject to the obligations contained in Article X.  
 
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  ANNEX D -7 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF MOLDOVA  
I. INTRODUCTION  
1. The dispute Russia – Measures Concerning Traffic in Transit (DS512) raises significant issues 
regarding the invocation and interpretation of Article XXI(b) of the General Agreement on Tariffs 
and Trade 1994  (the GATT 1994)  
2. The package of agreements accepted at the end of the Uruguay Round provides a carefully 
calibrated ba lance of rights and obligations. The WTO Agreements fully recognize the right of all 
WTO Members to avail themselves of exceptions to the WTO rules but requires them to do so within 
certain limits and based on the principle of good faith.  
3. In addition, in the Republic of Moldova 's view, the measures at issue in this dispute are 
inconsistent with several WTO obligations of the Russian Federation. By finding that the respondent 's 
measures at issue are both in breach of the GATT Article V, Articles X:1, X:2, X :3 and paragraphs 
1426, 1427 and 1428 of the Working Party Re port of the Russian Federation and that these measures 
cannot be justified under the GATT Article XXI, this Panel can help to ensure that the necessary 
balance for the invocation of the national security exception is preserved. The Panel is to conduct an 
"objective assessment of the matter " as prescribed by the Dispute Settlement Understanding (DSU) 
Article 11.  
4. Solid evidence is presented by Ukraine in this dispute showing that at least the follo wing two 
trade -restrictive measures are being applied by the Russian Federation on transit of goods through 
its territory: (i) the 2016 general transit ban and other transit restrictions; and (ii) the 2016 product -
specific transit ban and other transit res trictions. With the evidence submitted by Ukraine in its First 
Written Submission and additional evidence which the Panel may obtain in the course of these 
proceedings, we look forward to the Panel to establish the precise legal acts concerned in the case 
and their continued application. This is part of the Panel 's duty to conduct an "objective assessment 
of the matter " as prescribed by the Dispute Settlement Under standing (DSU) Article  11. 
5. The Republic of Moldova has traditionally used the most economic an d efficient transit routes 
in this region in order to allow Moldovan products to compete in the final markets to which the 
Russian Federation restricts transit. The Republic of Moldova has received signals from its exporters 
regarding such measures restric ting the free transit of their goods through the Russian territory 
including towards Kazakhstan and Kyrgyzstan. Both export destinations are very important to the 
Republic of Moldova. To exemplify, the exports of Moldovan wines alone to Kazakhstan represen t 
8,34% of its total exports.  
6. The Republic of Moldova fails to understand how the exports of the Moldovan products which 
traditionally have been transported through the disputed Russian transit routes pose a threat to that 
country. It is therefore very imp ortant for the Panel in these proceedings to offer clarifications as to 
whether such negative economic impact can be justified by the respondent by mere reference to the 
Security Exception of GATT Article XXI.  
II. LEGAL ARGUMENTS, PAN EL JURISDICTION IN R ESPECT OF ARTICLE XXI  AND 
INTERPRETATION OF AR TICLE XXI  
A. The jurisdiction of the WTO Panels over GATT Article XXI measures  
7. The Republic of Moldova is concerned with some points made by the Russian Federation in its 
First Written Submission in this dispute . In particular, the Russian Federation alleges that "neither 
this Panel nor the WTO as an institution has a jurisdiction over " the matter at issue in this case.1  
8. The Republic of Moldova is of the view that this Panel has jurisdiction over the case and th at 
it should take the opportunity to clarify the limits of the GATT Article XXI Security Exceptions in 
these proceedings.  
                                                
1 First Written Submission by the Russian Federation, 18 October 2017, para 7.  WT/DS512/R/Add.1  
 
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  9. In this case the Panel also possesses the necessary legal methods (what we consider 
justiciability) to consider and interpret Art. XXI  of GATT in this particular situation and the transit 
restrictions imposed by the Russian Federation.  
10. Therefore, the Republic of Moldova considers that the Panel has the legal power to examine 
this dispute and is the legally competent authority (has the jurisdiction) to use the legal methods 
(justiciability) in accordance with the provisions of the DSU, as w ell as the legal framework 
GATT  1994 to legally interpret the provisions of Article XXI of the GATT 1994, as well as Art. V, X  of 
GATT 1994 invoke d by Ukraine.  
11. The Russian Federation seems to believe that the mere invocation of the GATT Article XXI 
(b)(iii)2 prevents WTO panels from reviewing trade issues which would otherwise be WTO -
inconsistent. The Republic of Moldova disagrees with this approac h.  
12. It is undisputed that WTO panels have jurisdiction to decide on claims under WTO covered 
agreements. Under Article 1.1, the DSU applies to "disputes brought pursuant to the consultation 
and dispute settlement provisions of the agreements listed in Appendix  1 to the [DSU] ", i.e., the so -
called WTO covered agreements.3 The GATT Article XXI is a provision found in one of the WTO 
covered agreements. There is nothing in the GATT 1994 or the DSU excluding that provision from 
the jurisdiction  of panels and the App ellate Body.  
13. This jurisdiction  was recognised at the Dispute Sett lement Body (DSB) meeting of 21  March 
2017, in which the DSB established a panel with the following terms of reference: To examine, in 
the light of the relevant provisions of the covered agre ements cited by the parties to the dispute, 
the matter referred to the DSB by Ukraine in document WT/DS512/3 and to make such findings as 
will assist the DSB in making the recommendations or in giving the rulings provided for in those 
agreements.4 
14. While WT O Members have the right to self -define what their essential security interests are 
and declare the necessity of appropriate protection, the WTO panels reserve the right to review 
whether WTO Members apply such WTO -inconsistent measures in good faith and i n accordance with 
the terms laid down in GATT Article XXI. This reading also finds support in the WTO Agreement 
Article XIII:1 which states that the DSU, the multilateral agreements on trade in goods, GATS, and 
TRIPS (the covered agreements) "shall not app ly as between any Member and any other Member if 
either of the Members, at the time either becomes a Member, does not consent to such application.  
"At the time of its accession, the Russian Federation did not avail itself of this possibility.  
B. The limit s of the GATT Article XXI Security Exception  
15. While clearly of the view that this Panel does not have jurisdiction over the matter in the case, 
the Russian Federation nonetheless invokes GATT Article XXI (b) (iii) in order to justify the alleged 
inconsisten cy of all of the measures at issue with the different WTO rules under which Ukraine has 
made claims in these proceedings.5   
16. All WTO Members, including the Russian Federation, have the right to take measures to protect 
national security issues. Thus, while  the Republic of Moldova does not contest that the protection of 
national security falling within the scope of the GATT Article XXI is a valid exception from the WTO 
rules, the mere invocation of this provision does not provide absolute rights to those inv oking the 
provision. The examination of GATT Article XXI(b)(iii) in accordance with Articles 31 and 32 of the 
Vienna Convention on the Law of Treaties (VCLT) confirms that the security exception is not totally 
self-judging.  
17. In our view, the task of this P anel is to examine the limits of this provision. According to the 
Republic of Moldova, the limits of the sovereign discretion arising from the GATT Article XXI is set 
by: i) the general principle of good faith and ii) the fact that the burden of proof to j ustify a violation 
of a WTO provision lies with the defendant – that is the Russian Federation.  
                                                
2 Ibid, para 5.  
3 Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the 
Marrakesh Agreement (DSU).  
4 Constitution of the Panel established at the request of Ukraine, WT/DS512/4, 7 June 2017 . 
5 First Written Submission by the Russian Federation, 18 October 2017, para 7 and para 33.  WT/DS512/R/Add.1  
 
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  C. The principle of good faith  
18. DSU Article 3.2 explicitly confirms that WTO covered agreements must be clarified "in 
accordance with customary rules of interpre tation of public international law ". There is wide 
agreement and WTO jurisprudence supporting the fact that this interpretative exercise should be 
done with reference to the VCLT. Article 31(3) of the VCLT, part of the rules of interpretation thus 
referred to, directs the WTO adjudicating b odies to seek guidance not only from the WTO treaty 
itself, but also of "any subsequent agreement between the parties regarding the interpretation of 
the treaty or the application of its provisions ", as well as "any relevant rules of international law 
applicable in the relations between the parties ".  
19. The WTO treaty thereby explicitly frames itself in the wider context of public international law, 
including other non -WTO treaties, customary international law and general principles of law. In this 
sense, the  principle of good faith is perhaps the most important general principle of law, as it 
underpins many international legal rules. 6 
20. What the principle of good faith does is to require a party to a treaty to refrain from acting in 
a manner that would defeat the object and purpose of the treaty as a whole or that would put the 
treaty provision into question.7 
21. In the context of the GATT Article XX General Exception the WTO panels and the Appellate 
Body (AB) have stressed that the good faith principle controls t he exercise of rights by States, 
prohibits the abusive exercise of a State 's rights, and enjoins the assertion of a right.8 An abuse of 
right is said to occur when a State exercises its rights in such a way as to encroach on the rights of 
another State, an d that the exercise "… is unreasonable, and pursued in an arbitrary manner, without 
due consideration of the legitimate expectations of the other State. "9 The WTO Panel in Peru-
Agricultural Products further indicated that treaty right 'must be exercised bo na fide, that is to say, 
reasonably '.10 
22. An abusive exercise by a WTO Member of its own treaty right results in a breach of the treaty 
rights of another WTO Member. An interpretation according to good faith seeks to determine whether 
the intentions of the WT O Members are genuine and in accordance with the principle of good faith, 
the task of this Panel is to determine if, by applying restrictions on free transit, the Russian 
Federation has refrained from unfair conduct through which it is taking undue advanta ge of other 
WTO Members.  
23. According to the Republic of Moldova, the principle of good faith should guide the Panel 's 
process of finding an "objective assessment of the matter " in this dispute. In order to understand if 
the Russian Federation has acted in g ood faith in imposing the measures at issue, the Republic of 
Moldova submits that the Panel should seek to clarify the phrase " necessary for the protection of its 
essential security interests  "in GATT Article XXI(b) as follows:  
"necessary " 
 
24. This Panel needs to assess whether the invoking member 'genuinely believes ' that the 
measure taken is 'necessary ' in order to protect its national security interests. In this context, this 
Panel may refer to the jurisprudence from the 'necessity test ' of Article XX(a), (b) and (d), and 
consider the relevant factors, particularly the importance of the essential security interests or values 
at stake, the extent of the contribution to the achievement of the measure 's objective, and its trade 
restrictiveness.   This should be complemented with an analysis of whether the measures at issue in 
this case are 'apt to make a material contribution to the achievement of its objective '.11 
                                                
6 Hersch Lauterpacht,  International Law Vol. 1, (ed Elihu Lauterpacht, CUP 1970) 68; Malcolm N. Shaw, 
International Law, (6th edn, CUP 2008) 98; James Crawford, Brownlie’s Principles of Public International Law, 
(8th edn, OUP 2012) 134.  
7 Panel Report, United States –Continued Dumping and Subsidy Offset Act of 2000 (US –Byrd 
Amendment) , WT/DS217/R, adopted 27 January 2003, para 7.64.  
8 Appellate Body Report, United States –Import Prohibition of Certain Shrimp and Shrimp Products (US – 
Shrimp Products) , WT/DS58/AB/R, adopted 6 Novem ber 1998, para 158.   
9 Hersch Lauterpacht, Oppenheim's International Law , (8th ed, Longmans 1955)  263. 
10 Panel Report, Peru–Additional Duty on Imports of Certain Agricultural Products (Peru –Agricultural 
Products) , WT/DS457/R, adopted 27 November 2014, para 7.94.  
11 Panel Report, China –Rare Earths , para 7.146; China –Raw Materials , paras 7.480 -92. WT/DS512/R/Add.1  
 
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  "essential security interests " 
 
25. This Panel should seek to clarify if the measures at issue in this dispute protect 'essential 
security interests ' under the GATT Article XXI(b)(iii). The word 'essential ' indicates that general 
security may not suffice. The Republic of Moldova believes that 'essential security interests ' within 
the range of 'security interests ' must meet a higher standard that can be distinguished from other 
'non-essential security interes ts'.  
26. In our view this Panel should ask the Russian Federation, in addition to establishing the 
objective prerequisites in Article XXI(b) (iii) regarding the existence of an essential security interest, 
to demonstrate that any measure it has taken pursuant  to this provision does not intentionally serve 
protectionist purposes.  
27. The weighing and balancing exercise under the necessity analysis contemplates a 
determination as to whether a WTO -consistent alternative measure is reasonably available to the 
WTO Memb er imposing the measure.12 In this process the Panel should determine what the right 
approach is to compare a regime which severely restricts the free transit of goods with a less trade -
restrictive alternative measure. The Russian Federation needs to show t hat it 'genuinely believes ' 
that the taking of the measures at issue and the resulting restrictions are proportionate responses 
to the protection of its "essential security interests ". This would entail a minimum degree of 
proportionality between the secur ity interests as taken and the impact of the transit restrictions 
applicable to several WTO Members using the transit routes at issue in this dispute.  
28. Under the WTO framework, the Member invoking the national security exception under GATT 
Article XXI(b)(ii i) is entitled to a high level of deference, but this deference is not absolute. According 
to the Republic of Moldova, the Panel is to review the necessity of the measures at issue.  
D. The burden of proof  
29. It is well -established that the burden of proof re sts upon the party, whether complaining or 
defending, who asserts the affirmative of a particular claim or defence.13 In light of the foregoing, 
this Panel should establish an appropriate mechanism by which it can effectively allocate the duty 
to present th e facts and arguments in this case. The Republic of Moldova believes that it is the 
Russian Federation that bears the burden of proof in this dispute of showing that it has a valid GATT 
Article XXI justification for violations of the GATT Article V and the  other provisions of the WTO 
covered agreements under which Ukraine has made claims in these proceedings.  
30. In a case where the security exception is invoked by one of the parties to the dispute, it may 
be impossible for the complaining party to provide evidence to demonstrate that the 'motive ' of the 
responding party who invokes the GATT Article XXI is actually  purely commercial. The Russian 
Federation therefore must prove their case to the Panel 's satisfaction in particular as regards the 
question of whether it has acted in good faith in applying the GATT Article XXI exception.  
31. DSU Article 13 accords to WTO Pan els ample and extensive authority to undertake and to 
control the process by which it informs itself of the relevant facts of a dispute.  Thus, the Republic 
of Moldova would like to urge this Panel to play an active role in fact -finding as has been explici tly 
mandated in Article 13.1 of the DSU, under which a panel is given an independent investigative 
function. Consideration should also be given to the finding of the Appellate Body that 'a refusal to 
provide information requested by the panel lead to infer ences being drawn about the inculpatory 
character of the information withheld '.14 We find it necessary in this dispute for the Panel to actively 
intervene by seeking information evaluating and weighing the evidence, and carefully balancing the 
rights and ob ligations constructed by the WTO Agreement.  
                                                
12 See Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of 
Seal Products (EC –Seal), WT/DS400/R, adopted 18 June 2014, paras  7.636 -39. Appellate Body Reports, EC – 
Seal, WT/DS400, paras 5.260 -64. 
13 Ibid. 
14 Appellate Body Report, Canada –Measures Affecting the Export of Civilian Aircraft (Canada –Aircraft) , 
WT/DS70/AB/R, adopted 20 August 1999, para 204.  
 WT/DS512/R/Add.1  
 
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  III. CONCLUSION  
32. The Republic of Moldova is of the view that this Panel has jurisdiction over the case. T he Panel 
is empowered to examine the invocation of the Russian Federation of Art. XXI(b)(iii) of the GATT 
1994, and is the legally competent authority (has the jurisdiction) to use the legal methods 
(justiciability) in accordance with the provisions of the DSU, as well as the legal framework GATT 
1994 to legally interpret the provisions of Article XXI of the GA TT 1994, as well as Art. V, X of GATT 
1994 invoked by Ukraine.  
33. The Republic of Moldova does not contest that the protection of national security falling within 
the scope of the GATT Article XXI is a valid exception from the WTO rules, but the mere invocat ion 
of this provision does not provide absolute rights to those invoking the provision. The examination 
of GATT Article XXI(b)(iii) in accordance with Articles 31 and 32 of the Vienna Convention on the 
Law of Treaties (VCLT) confirms that the security exce ption is not totally self -judging.  
34.  The limits of the sovereign discretion arising from the GATT Article XXI is set by: i) the general 
principle of good faith and ii) the fact that the burden of proof to justify a violation of a WTO provision 
lies with th e defendant – that is the Russian Federation.  
 
 
 
 WT/DS512/R/Add.1  
 
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  ANNEX D -8 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF SINGAPORE  
A. Introduction  
 
1.  This dispute raises novel issues regarding the interpretation of Article XXI of the General 
Agreement on Tariffs and Trade 1994 (GATT 1994).  The decision on the interpretation of Article XXI 
of the GATT 1994 would have a direct impact on the interpretation of Article XIV bis of the General 
Agreement on Trade in Services as well as potentially broa der implications for the multilateral trading 
system.  As a WTO Member who attaches great importance to upholding an open and predictable 
trading environment, and as the world  's largest transhipment hub and second busiest port, 
Singapore has great interest  in the interpretation and application of Article XXI.  
  
2. From the outset, it is emphasized that Singapore is not commenting on the merits of the 
claims and the defences raised by the parties to this dispute.  This issue fundamentally concerns the 
legal i nterpretation of GATT treaty language.  Singapore  's third party intervention is thus strictly 
limited to the underlying approach and principles in the interpretation of Article XXI.  
 
3. Singapore is concerned with maintaining a rules -based multilateral tr ading system and a 
disciplined application of the covered agreements.  This entails the need to guard against any 
spurious reliance on Article XXI. At the same time, Singapore recognizes the fundamental and critical 
right of every WTO Member to protect itse lf in the face of threats to its essential security interests.  
 
4. As such, the Panel must strike an appropriate balance between maintaining the integrity of a 
rules-based multilateral trading system on the one hand, and preserving the ability of Members to 
protect their essential security interests on the other.  The appropriate balance that should be struck 
will be the subject of Singapore  's third party intervention.  
 
5. Singapore will first address the issue of whether the Panel has jurisdiction  in respect of Article 
XXI before turning next, to the interpretation  of Article XXI(b), in particular Article XXI(b)(iii).  
 
6. As this issue fundamentally involves an exercise in treaty interpretation, we are guided by the 
principles of treaty interpretation set out in Article 31(1) of the Vienna Convention on the Law of 
Treaties1. This reflects a customary rule of treaty interpretation2 that a treaty should be interpreted 
"in good  faith in accordance with the ordinary meaning to be given to the terms of the treaty in their 
context and in the light of its object and purpose".   
 
B. Whether the Panel has jurisdiction in respect of Article XXI  
 
7. On the question of whether the Panel has jurisdiction to consider a WTO Member  's invocation 
of Article XXI, Singapore joins several other third parties to this dispute in responding in the 
affirmative3. 
 
8. The Panel  's terms of reference are set out in Article 7(1) of the Understanding on R ules and 
Procedures Governing the Settlement of Disputes (DSU) which provides for the Panel to "examine, 
in the light of the relevant provisions [of the agreement cited by the parties to the dispute] the 
matter referred to the DSB." 4 Further, Article 7(2)  of the DSU provides that "[p]anels shall address 
the relevant provisions in any covered agreement or agreements cited by the parties to the dispute."  
The plain and ordinary meaning of the DSU  's provisions do not speak of any exceptions to the 
                                                
1 Article 31(1) The Vienn a Convention on the Law of Treaties, done at Vienna, 23 May 1969, 1155 
U.N.T.S. 331; 8 International Legal Materials 679.  
2 Appellate Body Report, EC – Chicken Cuts , para. 192; International Court of Justice, Competence of 
the General Assembly for the Admi ssion of a State to the United Nations, Advisory Opinion, I.C.J. Reports 
1950, p. 8.  
3 Australia  's third party submission, para. 10; the European Union  's third party submission, para. 21; 
Japan  's third party submission, para. 30; and Moldova  's third pa rty submission, para. 16.  
4 Constitution of the Panel Established at the Request of Ukraine, WT/DS512/4.  
 WT/DS512/R/Add.1  
 
- 100 - 
 
  application  of Articles 7(1) and 7(2).  If the intention of the negotiators was for the Panel to have no 
jurisdiction to examine a dispute once a Member invokes Article XXI, one would have expected such 
an important and significant matter to be expressly provided for.  
 
9. This interpretation is supported by the jurisprudence of the Appellate Body.  The Appellate 
Body has interpreted the phrase "shall address" in Article 7(2) of the DSU as indicating that panels 
are "required to address the relevant provisions in any cov ered agreement or agreements cited by 
the parties to the dispute."5 This means that the Panel must address the relevant provisions to the 
dispute at hand, including Article XXI(b).  
 
10. It is therefore clear that the Panel does have jurisdiction over any M ember  's invocation of 
Article XXI in WTO dispute proceedings, subject to certain parameters which are set out next.   
 
C. The interpretation of Article XXI(b), in particular Article XXI(b)(iii) – the applicable 
test 
 
11. As regards the test that the Panel should apply in the interpretation of Article XXI(b), in 
particular, Article XXI(b)(iii), Singapore wishes to highlight three points.  Article XXI(b) provides as 
follows:  
 
 Nothing in this Agreement shall be construed  
 … 
 (b) to prevent any contracti ng party from taking any action which it considers necessary for 
the protection of its essential security interests   
 … 
  (iii) taken in time of war or other emergency in international relations;  
 … 
 
12. First, the word "it" in the phrase "it considers necessary" in Article XXI(b) clearly and 
unambiguously refers to a "contracting party".  On a plain and ordinary reading, the focus of any 
scrutiny therefore has to be whether the Member invoking the exception considers the action to be 
necessary . This key phrase has been deliberately drafted in this manner and must be given effect 
to.  
 
13. This points to the self -judging nature of the assessment in Article XXI(b) and indicates that a 
WTO Member is allowed to determine with a significant degree of  subjectivity what action "it 
considers necessary" to protect "its essential security interests".  This would mean that a WTO 
Member has wide latitude to determine: (a) the action taken for the protection of its essential 
security interests, including the n ature, scope and duration of the measure; and (b) the necessity 
of the measure.  
 
14. This is to be contrasted with the text in Article XX of the GATT 1994, which does not contain 
the phrase " it considers  necessary" (emphasis added).  Unlike Article XXI(b),  the necessity of the 
measure taken under Article XX is capable of objective determination.  In light of the ordinary 
meaning of Article XXI(b), Singapore does not agree with an interpretation which seeks to apply the 
necessity test developed under Article XX to Article XXI(b).  We also have doubts as to the 
applicability of the two -tiered analytical approach in the evaluation of an Article XX general exception 
to the Article XXI security exceptions.  
 
15. Second, the nature of the matters addressed by Article  XXI(b) and consequently the context 
of this exception cannot be overlooked.  Every Member has the sovereign right to determine its own 
security interests and threats. Essential security interests are likely to vary depending on each 
Member  's unique circum stances.   Following from this, we would caution against attempts to frame 
a prescriptive scope and content to the phrase "essential security interests" . As for the assessment 
of threats to the essential security interests of a WTO Member and the necessary measures in 
response, this assessment involves judgement on the part of that Member and is dependent on the 
particular context and circumstances of the Member concerned.  Further, the particular measure that 
a Member has to take to deal with the threat and to protect its essential security interests, may not 
be similar to the measure that needs to be taken by another Member in response to the same type 
of threat.  
                                                
5 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 49. WT/DS512/R/Add.1  
 
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16. Moreover, in arriving at this judgement, every Member, as the guardian and protector of it s 
own essential security, has to a larger or lesser extent in every case, make determinations of the 
security threats, sometimes under the most urgent circumstances, relying on information the 
disclosure of which may itself prejudice the security interest of the Member or other Members and 
undermine the very purpose of Article XXI(b).  Therefore, there is necessarily a degree of subjectivity 
in this exercise, and an accompanying diversity of assessments that has to be respected.  
 
17. Third, there are many ar eas in the WTO regime where some margin of appreciation is 
incorporated.  We observe that in applying the standard of review in Article 11 of the DSU, panels 
and the Appellate Body have granted considerable deference to the decisions of Members, 
particularl y in a Member  's assessment of the appropriate level of protection and the chosen level of 
protection.  For example, in the context of the Agreement on the Application of Sanitary and 
Phytosanitary Measures , the Appellate Body has recognized that "[t]he det ermination of the 
appropriate level of protection… is a prerogative  of the Member concerned and not a panel or of the 
Appellate Body" (emphasis original)6. Additionally, in relation to the necessity of a measure taken 
for the protection of health, the Appe llate Body has stated that "… it is undisputed that WTO Members 
have the right to determine the level of health that they consider appropriate in a given situation."7  
 
18. None of these provisions come anywhere close to being as express and definitive wit h respect 
to self -judgment as Article XXI(b).  It then follows that, a fortiori , a higher level of deference should 
be accorded to the WTO Member  's chosen level of protection, assessment of risk and of the necessity 
of a measure taken for the protection of  its essential security interests.  Accordingly, a significant 
margin of appreciation should be accorded to WTO Members in their assessment of the same.  
 
19. Having laid out these three points, Singapore recognizes that Article XXI(b) should not be read 
as giving a WTO Member entirely unfettered discretion in invoking this exception.  For Article XXI(b) 
to be meaningful, a Member is expected to act in accordance with the standard of good faith ( pacta 
sunt servanda ) as set out in Article 26 of the Vienna Convention on the Law of Treaties and with the 
general international law notion of abuse of rights ( abus de droit ). The principle of good faith and 
the doctrine of abuse of rights have been recognized by the Appellate Body, which has held that 
Members must  abide by their treaty obligations in good faith8 and that the doctrine of abuse of rights 
is an application of the general principle of good faith9. 
 
20. Singapore submits that in the context of Article XXI(b), this standard is met when a Member 
in good f aith, albeit subjectively, considers based on the information available to that Member, that: 
(a) there is a threat to its essential security interest; and (b) its chosen action is necessary for the 
protection of that essential security interest (i.e. that  there is a nexus between the measure taken 
and the essential security interests).  Such an approach appropriately balances the subjective self -
judging nature of Article XXI(b) with the need to ensure that Article XXI is not used spuriously to 
justify measu res which are in reality motivated solely for economic or trade restrictive purposes or 
other purposes which are unrelated to the protection of its essential security interests.  Such a lack 
of good faith may in turn, be inferred from the facts.   
 
21. Even if the Panel is inclined to conduct a more intrusive examination of a Member  's invocation 
of Article XXI(b), we would urge the Panel to confine this to an examination of whether the disputed 
measure was implemented in a non -capricious manner, rather than conducting an examination that 
in reality approximates a substantive review.  
 
22. In respect of Article XXI(b)(iii) in particular, the determination of whether an "emergency in 
international relations" exists is inherently subjective, and takes into accou nt, among others, the 
invoking Member  's particular state of relations with other Member(s) and the wider international 
community, the pressing needs of the moment and the context in which such needs arise.  
Furthermore, the highly subjective nature of the sensitivities involved in the Members  ' 
determinations of security threats which has been set out above, are equally applicable to a 
determination of whether an "emergency in international relations" exists.  
 
                                                
6 Appellate Body Report, Australia – Salmon , para. 199.  
7 Appellate Body Report, EC – Asbestos , para. 168.  
8 Appellate Body Report, EC – Sardines , para. 278; Appellate Body Report, US – FSC, para. 166.  
9 Appellate Body Report, US – Shrimp , para. 158.  WT/DS512/R/Add.1  
 
- 102 - 
 
  D. Conclusion  
23. In conclusion, Singapore ac cepts that the Panel has jurisdiction to consider a WTO Member  's 
invocation of Article XXI.  We have sought to set out the policy, logic and textual basis underpinning 
the legal interpretation of Article XXI(b) as a provision that permits a WTO Member to t ake measures 
that it subjectively considers to be necessary to protect its essential security interests.  In this 
process, a significant margin of appreciation should be accorded to WTO Members in their 
assessment of the same.  
 
24. However, this does not me an that WTO Members have unfettered discretion to invoke this 
exception spuriously.  A WTO Member is expected to act in accordance with the standard of good 
faith should it wish to invoke this exception.  In Singapore  's view, this approach is what is requir ed 
by the language of Article XXI(b) which reflects the balance that has been struck between 
maintaining the integrity of a rules -based multilateral trading system and preserving the ability of 
Members to protect their essential security interests.  
 
 WT/DS512/R/Add.1  
 
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  ANNEX D -9 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF TURKEY 
I. INTRODUCTION  
Mr. Chairman, distinguished Members of the Panel,  
1. Turkey appreciates the opportunity to present this Oral Statement as a Third Party in the current 
proceedings. Turkey would like to note that it will not present any opinion on the specific factual 
context of this dispute and takes no position whatsoever as to the allegations and defense presented 
by the parties on whether the specific measure at issue is consisten t or inconsistent to the subject 
provisions of the WTO Agreements.  
2. Turkey is aware of the Russian Federation's objection regarding the Panel's and the WTO's 
jurisdiction over the matter at issue in this dispute. Thus, in the followings, Turkey will bri efly share 
its views with regard to Article XXI of the General Agreement on Tariffs and Trade (GATT 1994). It 
will then express its opinion on some systemic issues regarding the interpretation of the relevant 
paragraphs of Article V of the GATT 1994, to be  taken into consideration in the event the Panel 
decides that it has jurisdiction over the matter before it.  
II. ARTICLE XXI OF THE GATT  
3. First and foremost, Turkey recognizes that "national security concerns" of the WTO Members are 
protected under Art icle XXI of the GATT, allowing them to take measures that would otherwise be 
in breach of their GATT obligations. Moreover, it is a fact that nearly almost all of the bilateral, 
regional or multilateral agreements provide provisions, generally structured b ased on Article XXI of 
the GATT, that allow governments to protect their national security interests that are in conflict with 
free trade rules. In fact, Article XIV bis of the GATS and Article 73 of the TRIPS Agreement contain 
similar provisions.  
4. Nevertheless, as of yet, application and interpretation of the security exception stipulated in Article 
XXI of the GATT has not been addressed by a Panel and Appellate Body. Although Arti cle GATT XXI 
of the GATT 1947 has been invoked several times by the C ontracting Parties to justify some of their 
measures, and Panels were established for some of them, no clear answers have been given to the 
following two questions: "Does a Panel have jurisdiction to examine a case involving an Article XXI 
invocation?" and  "Is the interpretation of Article XXI reserved entirely to the Member invoking it?" 
In this context, answers of the Panel of this dispute are vital and will have many systemic effects on 
WTO legal system.  
5. Within the context of this dispute, Article XX I of the GATT, in relevant parts, states that "[n]othing 
in this Agreement shall be construed… (b) to prevent any contracting party from taking any action 
which it considers  necessary for the protection of its essential security interests… (iii) taken in ti me 
of war or other emergency in international relations" (emphasis added)  
6. The wording of Article XXI (b), especially the use of "which it considers necessary", gives the 
impression that the subjective assessment of the country taking action for the prot ection of its 
essential security interests is in the foreground. Furthermore, Article XXI does not contain an 
expression that is similar to the chapeau  of Article XX of the GATT 1994.  
7. Therefore, in Turkey's view, to a very large extent, Article XXI leav es the determination of which 
measure is "necessary for the protection of its essential security interests" to the  judgement of the 
country concerned. Nonetheless, Turkey also considers that judgement of the Member, taking action 
for the protection of its essential security interests, is not unqualified. Turkey would like to underline 
that the term "security interests" is qualified with the term "essential", which at  
                                                
 Turkey requested that its oral statement serve as its executive summary.  WT/DS512/R/Add.1  
 
- 104 - 
 
  least, in Turkey's view, intends to draw some boundary and prevent abuse of the power to t ake 
commercial measure by sheltering it behind the security exception.  
8. With regard to the legal standard that should be applied to the examination of Article XXI 
invocation, Turkey is of the view that the Panel should take guidance in the steps that hav e been 
applied to other exception rules, such as the general exception rules contained in Article XX of the 
GATT. In this sense, in case of a dispute between two Members, the complainant Member should 
first prove that the measure is prima facie  inconsisten t with the relevant provisions of the GATT, 
then the defendant Member should put forward its arguments, including the argument that the 
measure it took can be justified under the security exception stipulated in Article XXI of the GATT. 
The Panel, however,  in reviewing GATT Article XXI, should consider the large margin of discretion of 
the Member, invoking it.  
III. ARTICLE V OF THE GATT 1994  
Mr. Chairman, distinguished Members of the Panel,  
9. From now on, Turkey would like to express its view with regard t o the interpretation of relevant 
paragraphs of Article V.  
10. Article V:1 defines the term of "traffic in transit" covering not only the goods but also vessels 
and other means of transport, whose journey begin and terminate beyond the frontier of the 
contracting party across whose territory the traffic passes. Turkey agrees with the Panel in Colombia 
– Ports of Entry  that "the definition of "traffic in transit" provided in Article V:1 seems sufficiently 
clear on its face" .  
11. Given the clear wording of th e first paragraph and in light of Panel's understanding in Colombia 
– Ports of Entry , Turkey would like to emphasize four points with regard to the definition of the term 
"traffic in transit". First, Article V:1 defines journeys which begin outside the fro ntier of a WTO 
Member and terminate after crossing the country as "transit traffic". Accordingly, beginning or 
ending of a journey from or at the territory of a country that is a member or a non -member of the 
WTO, has no significance in the definition of " traffic in transit". Second, definition of "traffic in transit" 
covers not only the transported goods but also the vessels and other means of transport. Third, the 
conduct of procedures such as warehousing, change in the mode of transport and trans -shipmen t 
do not change the "transit" status of the good or the vehicle. Fourth, definition in the first paragraph 
of Article V informs the scope of obligations under the following paragraphs of Article V. Therefore, 
in interpreting the other paragraphs of the Art icle V, definition in the first paragraph should always 
to be taken into account.  
12. Concerning freedom of transit, Article V:2 provides two substantive obligations in the first and 
second sentences, which are in support of each other. While first sentenc e requires transit traffic to 
be conducted freely via the routes most convenient for international transit, second sentence 
prohibits from making distinction based on the flag of vessels, the place of origin, departure, entry, 
exit or destination, or on an y circumstances relating to the ownership of goods, of vessels or of other 
means of transport.  
13. With regard to first sentence of Article V:2, Turkey notes that there is no definition of the key 
term "freedom of transit" in the text itself. Nevertheless,  Turkey considers that qualification of the 
word "transit" with "freedom" necessitates a purposeful interpretation, subject only to the specific 
qualifications set out in Article V itself. Indeed the Panel in Colombia – Ports of Entry interpreted the 
first sentence of the Article V:2 requiring "unrestricted access" to the most convenient routes for the 
passage of goods in international transit.  
14. It is worth noting that first sentence of Article V:2 also provides that transit passages should be 
achieved through the most appropriate routes. The text uses the term "routes" in plural form, which 
suggests that there can be more routes appropriate for international transit. Nevertheless, forcing 
the transporters to use of long and costly routes or use  of a different mode of transport will constitute 
contradiction with  Article V.  
15. Regarding the second sentence of Article V:2; Turkey is of the view that, this sentence provides 
equal treatment obligation, which has a wider scope of application compare d to MFN obligation. WT/DS512/R/Add.1  
 
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  Thus, in Turkey's understanding, the transit WTO Member should provide equal access to transit 
traffic for the internationally transported goods as well as the vessels of the other WTO Members. 
In other words, any kind of distinction n ot only among the WTO Members, but also between a WTO 
Member and the transit WTO Member would be inconsistent with this sentence. For greater clarity, 
Turkey would like to emphasize that obligation in this sentence applies only to the goods and vessels 
in transit, i.e. journeys beginning and terminating beyond the transit country. However, whereas 
vessels carrying domestic and imported goods within the country are out of the scope of this 
sentence, vessels registered in the transit country, but taking its l oad from a different country and 
transiting the country, are in the scope of this sentence.  
16. With regard to Article V:3, Turkey notes that this provision brings an important limitation on 
freedom of transit. Indeed, Article V:3 gives permission to the t ransit WTO Member to require the 
transit vehicles to enter from the proper customs house. However, this right is not unfettered and 
should be read together with second paragraph of Article V. In fact, Article V:3 limits the right to 
require the transit veh icles to enter from the proper custom house in the event where it causes 
unnecessary delays. In other words, if the right to request transit vehicles to enter from the proper 
customs house is used in way to prolong or restrict the free transit passages of the goods and the 
vessels, this measure would be inconsistent with Article V.  
17. Another limitation stated in Article V:3 relates to fees. Naturally, transit country incurs some 
expenses because of the transit traffic, such as maintenance and repair costs  of roads, highways, 
railways and ports etc. Thus, in Turkey's view, Article V:3 allows transit country to require the users 
of those facilities to meet some costs associated with those expenses. However right to collect fees 
and charges from the transit t raffic is not unlimited.  
18. First, as Article V:3 clearly states, transit vehicles and their load  cannot be subject to any kind 
of financial obligation which can be regarded as a customs duty or a transit duty. Second, as the 
Trade Facilitation Agreement,  which constitutes a relevant context, explains in detail, traffic in transit 
shall also not be conditioned upon collection of any fees or charges imposed in respect of transit, 
except the charges for transportation or those commensurate with administrativ e expenses entailed 
by transit or with the cost of services rendered. In other words, any administrative expense and 
service fee regarding the services rendered for transit vehicles and their loads should commensurate 
with the expenses and the services ren dered. Thus, fees and charges that are not related or 
proportional with the expenses and the services rendered would be inconsistent with Article V:3.  
19. In addition Article V:4 requires that charges and regulations must be reasonable. According to 
Article V:4, all charges and other restrictive regulations that are allowed to be implemented within 
the scope of Article V:3 shall be reasonable, taking the conditions of traffic into consideration. Turkey 
believes that provided that they are applied in an obje ctive and impartial manner, regulations 
restricting passages in residential areas or in weekends, which are applied to local and foreign 
carriers similarly would be reasonable. However, Turkey believes that rate discrimination or passage 
restrictions that are not applied in an objective and impartial manner fall aside from these reasonable 
charges and regulations.  
20. Lastly, Article V:5 provides an MFN obligation, with respect to all charges, regulations and 
formalities in connection with transit. Ad Note  to paragraph 5 further states that "with regard to 
transportation charges, the principle laid down in paragraph 5 refers to like products being 
transported on the same route under like conditions". Turkey considers that Article V:5 provides 
equal conditio ns of competition between like products being transported on the same route under 
like conditions. Thus, Turkey believes that in interpreting this paragraph, the Panel should consider 
the interpretation of Article I of the GATT, as it provides a useful she d lights.  
IV. CONCLUSION  
Mr. Chairman, distinguished Members of the Panel,  
21. This concludes Turkey's oral statement. Turkey thanks once again the Panel for the time and 
attention and stands ready to answer any questions that you might have.  
 WT/DS512/R/Add.1  
 
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  ANNEX D -10 
EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES  
EXECUTIVE SUMMARY OF THE U.S.  THIRD PARTY ORAL STATEMENT  
I. INVOCATION OF ARTICLE XXI  IS SELF-JUDGING AND NOT SUBJECT TO REVIEW  
1. Article XXI of the GATT 1994, in relevant part, states that "[n]othing in this Agreement shall 
be construed . . . to prevent any contracting party from taking any action which it considers 
necessary for the protection of its essential security interests . . . taken in time of war or other 
emergency in international relations[.] " On its face, the text establishes two crucial points: first, 
nothing in the GATT 1994 prevents a Member from taking any action needed to protect an essential 
security interest; and second, the action necessary for the protection of its essential security 
interests is that "which it considers necessary for " such protection.  That is, a Member has the 
discretion and responsibility to make the serious determination, with attendant politi cal 
ramifications, of what is required to protect the security of its nation and citizens.  
2. The self -judging nature of Article XXI is established through use of the crucial phrase: "which 
it considers necessary for the protection of its essential securit y interests. " The ordinary meaning of 
"considers " is "regard (someone or something) as having a specified quality " or "believe; think ". The 
"specified quality " for the action is that it is "necessary for " the protection of a Member 's essential 
security.  Thus, reading the clause together, the ordinary meaning of the text indicates it is the 
Member ( "which it ") that must regard ( "considers ") an action as having the quality of being 
necessary.  
3. The context of Article XXI(b)(iii) supports this understanding.  First, the phrase "which it 
considers " is present in Article XXI(a) but not in Article XXI(c).  Its use in Articles XXI(a) and XXI(b) 
highlights that, under these two provisions, it is the judgment of the Member that controls.  The use 
of "which it consider s" in Article XXI(b) should be given meaning and should not be reduced to 
inutility.   
4. Second, the context provided by Article XX supports this understanding.  This Article sets out 
"general exceptions ", and a number of subparagraphs relate to whether an action is "necessary " for 
some listed objective.  In none of these subparagraphs is the phrase "which it considers " used to 
introduce "necessary ". It is also notable that the chapeau of Article XX subjects application of a 
measure qualifying as "necessary " under a subparagraph to a further requirement of, essentially, 
non-discrimination.  No such qualification, which requires review of a Member 's acti on, is present in 
Article XXI.  
5. Third, the use of the phrase "it considers " in the GATT 1994 and other provisions of the WTO 
Agreement is used when the judgment resides in the named actor.  Such provisions envision that a 
Member, a panel, the Appellate Body, or another entity takes an action where it "considers " that a 
situation a rises.  In each of these provisions, the judgment of whether a situation arises is left to the 
discretion of the named actor.  
6. By way of contrast, and further context, we note at least two WTO provisions in which the 
judgment of the named actor is expres sly subject to review through dispute settlement.  Article 26.1 
of the DSU permits non -violation complaints to be brought under the DSU, subject to special 
requirements, including that the panel or Appellate Body agree with the judgment of the complaining 
party: "Where and to the extent that such party considers and a panel or the Appellate Body 
determines that a case concerns a measure that does not conflict with the provisions of a covered 
agreement to which the provisions of paragraph 1(b) of Article XXII I of GATT 1994 are applicable, 
the procedures in this Understanding shall apply, subject to the following … ". Thus, in this provision, 
Members explicitly agreed that "where … [a] party considers … that " is not enough, and they 
subjected the non -violation c omplaint to the additional check that "a panel or the Appellate Body 
determines that " the case is in fact a non -violation situation described in GATT 1994 Article 
XXIII:1(b).  A similar limitation – that a "party considers and a panel determines that " – was agreed 
in DSU Article 26.2 for situation complaints described in GATT 1994 Article XXIII:1(c).  WT/DS512/R/Add.1  
 
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  7. This context is highly instructive.  No such review of a Member 's judgment is set out in Article 
XXI, which only states "which it [a Member] considers necessa ry for the protection of its essential 
security interests ". In agreeing to GATT 1994, Members could have subjected a Member 's essential 
security judgment to an additional check through a similar phrase as in DSU Articles 26.1 and 26.2 
– "and a panel [or th e Appellate Body] determines that ". But Members did not agree to this language 
in Article XXI.  Accordingly, they did not agree to subject a Member 's essential security judgment to 
review.  
8. Russia 's invocation of Article XXI did not occur in the DSB or pr ior to establishment of this 
Panel.  The DSB established this Panel with standard terms of reference to examine the matter raised 
by Ukraine.  However, the dispute is non -justiciable in the sense that the Panel cannot make findings 
on Russia 's invocation, ot her than to conclude that Article XXI has been invoked.   
9. This outcome is fully consistent with the Panel 's terms of reference and the DSU.  To recall, 
under Article 7.1, the Panel is charged with examining the matter raised by Ukraine "and to make 
such f indings as will assist the DSB in making the recommendations or in giving the rulings provided 
for in that/those agreement(s). " Similarly, DSU Article 11 calls for the Panel to make "an objective 
assessment of the matter before it " and "such other findings  as will assist the DSB in making the 
recommendations or in giving the rulings provided for in the covered agreements. " But, were the 
Panel to make findings on Ukraine 's claims in this dispute, that would be contrary to its terms of 
reference and Article 1 1. This is because such findings "will [not] assist the DSB in making 
recommendations or in giving the rulings provided for in the covered agreements. " No 
recommendation under DSU Article 19.1 is possible in this dispute because no antecedent finding 
that a measure is inconsistent with a covered agreement is possible, given the invocation of Article 
XXI.  
10. In this way, the Panel will have "address[ed] the relevant provisions in any covered 
agreements cited by the parties to the disputes, " consistently with DSU Article 7.2.  It is erroneous 
to consider that to "address " a provision means that it is necessary for a Panel or the Appellate Body 
to make "findings " under that provision.  Were this not so, each exercise of judicial economy by a 
panel or the Appellate Body would breach either DSU Article 7.2 or DSU Article 17.12.   
II. THIS INTERPRETATION IS CONSISTENT WITH MEMBERS ' HISTORICAL UNDERSTANDING OF ESSENTIAL 
SECURITY  
11. Shortly after the GATT 1947 was concluded, a dispute arose between Czech oslovakia and the 
United States concerning export licenses that Czechoslovakia claimed the United States was 
withholding with respect to certain goods in a discriminatory manner.  Czechoslovakia requested a 
decision under Article XXIII whether the United St ates had failed to carry out its obligations under 
Article I of the GATT 1947.  The United States responded by invoking Article XXI.   
12. In addressing the request from Czechoslovakia, it was commented that "since the question 
clearly concerned Article XXI,  the United States action would seem to be justified because every 
country must have the last resort on questions relating to its own security " and that "the Chairman 
… was of the opinion that the question was not appropriately put because the United State s 
Government had defended its actions under Article[] XXI which embodied exceptions to the general 
rule contained in Article I. "   
13. Based on this shared view, and upon a vote with only Czechoslovakia dissenting, the 
CONTRACTING PARTIES held that the Uni ted States had not failed to carry out its obligations under 
the Agreement.  This early GATT action confirms the understanding of Article XXI as a self -judging 
exception to the general applicability of the other articles in the GATT.   
14. In 1982, the Europ ean Communities and its member states, Canada, and Australia, spoke in 
the GATT Council to justify their application of trade restrictions for non -economic reasons against 
certain imports.  The representative of the European Communities stated that it and i ts member 
states took these measures "on the basis of their inherent rights, of which Article XXI of the General 
Agreement was a reflection.  The exercise of these rights constituted a general exception, and 
required neither notification, justification nor approval, . . . [since] every contracting party was – in 
the last resort – the judge of its exercise of these rights. "   WT/DS512/R/Add.1  
 
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  15. In the same Council discussion, the representative of Canada stated that "Canada 's sovereign 
action was to be seen as a political r esponse to a political issue " and therefore fell squarely within 
the exemption of Article XXI and outside the competency and responsibility of the GATT.    
16. Expressing the same view, the representative of Australia stated that "the Australian measures 
were in conformity with the provisions of Article XXI(c), which did not require notification or 
justification. "  
17. In that same Council discussion, the United States stated that "[t]he General Agreement left 
to each contracting party the judgment as to wha t it considered to be necessary to protect its security 
interests.  The contracting parties had no power to question that judgment. " Thus, the U.S. 
understanding of the security exemption in Article XXI has been consistent.  
EXECUTIVE SUMMARY OF THE U.S.  RESPONSES TO PANEL QUESTIONS TO THIRD PARTIES  
18. General U.S. Answer to Questions from the Panel : As the Panel is aware, the United States 
considers that the text and negotiating history of GATT 1994 Article XXI, as well as its place within 
the broader WTO framework, indicate that this provision is non -justiciable.  That is, the text leaves 
its invocation to the judgment of a Member through the phrase "that it considers essential ". A 
Member 's judgment as to any element of this invocation is theref ore not capable of findings by a 
panel.  This being the case, the Panel would carry out its mandate, consistent with the terms of 
reference and the DSU, by acknowledging that Russia has invoked Article XXI and, on this basis, 
concluding that it cannot make findings as to whether Russia 's measures are consistent with its WTO 
obligations.   
19. In December 1945, the United States proposed the establishment of an International Trade 
Organization of the United Nations for the purpose of administering commercial r elations between 
trading partners in accordance with rules set forth in a Charter for the Organization.  The Draft 
Charter proposed by the United States the following year included two articles containing exceptions 
to certain provisions of the Charter.  The articles, respectively and in relevant part, read as follows:  
Article 32 (General Exceptions to Chapter IV):  
Nothing in Chapter IV of this Charter shall be construed to prevent the adoption 
or enforcement by any Member of measures …  
(e) in time of war or  other emergency in international relations, relating to the 
protection of the essential security interests of a Member.  
Article 49.2 (Exceptions to Provisions Relating to Intergovernmental Commodity 
Agreements):  
None of the foregoing provisions of Chapter VI is to be interpreted as applying to 
agreements relating to fissionable materials; to the traffic in arms, ammunition 
and implements of war and to such traffic in other goods and materials as is carried 
on for the purpose of supplying a military establishment; or, in time of war or 
other emergency in international relations, to the protection of the essential 
security interests of a Member.  
20. Notably, these provisions as originally drafted do not appear to be self -judging.  First, they 
lacked the  key phrase that appears in the current text of Article XXI regarding action by a Member 
that "it considers necessary for " the protection of its essential security interests.  Second, the 
essential security exception set out in Article 32 was one of twelve exceptions, several of which later 
formed the basis for GATT 1994 Article XX.  
21. In March 1947, a general exception to Chapter V of the Draft Charter was put forward in 
Article XX (cf. Article 37 of the Charter).  The proposed text read:  
Subject to the re quirement that such measures are not applied in a manner which 
would constitute a means of arbitrary or unjustifiable discrimination between 
countries where the same conditions prevail, or a disguised restriction on WT/DS512/R/Add.1  
 
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  international trade, nothing in this Agr eement shall be construed to prevent the 
adoption or enforcement by any contracting party of measures …  
(e) In time of war or other emergency in international relations, relating to the 
protection of the essential security interests of a contracting party .   
22. The chapeau of this provision on general exceptions and a number of the subparagraphs are 
identical to what would become Article XX in the GATT 1994.  With its proviso, the chapeau 
contemplated review by a panel so that the exceptions would not be a pplied to discriminate unfairly.  
As the subparagraphs corresponding to essential security were included here together with other 
exceptions, and therefore were also subject to the proviso in the chapeau, this too suggests that the 
drafters did not, at this  time, view the essential security exception in subparagraph (e) as self -
judging.    
23. On July 4, 1947, the United States proposed suggestions regarding the arrangement of the 
Charter as a whole, including the addition of a new Chapter VIII, entitled "Miscellaneous, " and the 
placement in this new chapter of the proposed General Exceptions to the Charter as a whole.  In this 
proposal, the United States also proposed additional text to make the self -judging nature of these 
exceptions apparent.  Draft Article 9 4 stated:  
Nothing in this Charter shall be construed to require any Member to furnish any 
information the disclosure of which it considers contrary to its essential security 
interests, or to prevent any Member from taking any action which it may consider 
to be necessary to  such interests: …  
c) In time of war or other emergency in international relations, relating to the 
protection of its essential security interests;  
24. For the first time in the drafting of the general exceptions, the text now referenced w hat a 
Member considered to be necessary – but this reference was included only for national security 
issues, including actions which a Member may consider necessary for the protection of its essential 
security interest.  The drafting history thus shows a de liberate textual distinction drawn between the 
self-judging nature of general exceptions pertaining to essential security and those related to other 
interests that, unlike the removal of the security -based exceptions referenced above, were retained 
in Arti cle 37.   
25. Regarding the scope of application of the exception, at a meeting of the negotiating committee 
in 1947, the delegate from the Netherlands requested clarification on the meaning of the "essential 
security interests " of a Member, which the deleg ate suggested could represent "a very big loophole 
in the whole Charter. " Responding to these concerns, the delegate from the United States explained 
that the exception would not "permit anything under the sun " and that the limitation on actions not 
consis tent with the Charter related to the time in which such actions would be taken – i.e., "in time 
of war or other emergency in international relations. " The delegate suggested that there must be 
some latitude for security measures, and that it was a question  of balance.  In situations such as 
times of war, however, "no one would question the need of a Member, or the right of a Member, to 
take action relating to its security interests and to determine for itself —which I think we cannot 
deny—what its security in terests are. "   
26. Moreover, "in defence of the text, " the Chairman recalled the context of the exception as part 
of the Charter of the ITO, and that in that context "the atmosphere inside the ITO will be the only 
efficient guarantee against abuses of the  kind" raised by the Netherlands delegate.  Therefore, the 
delegates and the Chairman recognized that the security exceptions would be self -judging and that 
no formal review of a Member 's invocation of the exceptions could be requested.    
27. During the same meeting, the Chairman noted that the question arose whether "we are in 
agreement that these clauses [on national security] should not provide for any means of redress ".  
In response, the U.S. delegate noted that "[i]t is true that an action  taken by a Member under Article 
94 could not be challenged in the sense that it could not be claimed that the Member was violating 
the Charter ; but if that action, even though not in conflict with the terms of Article 94, should affect 
another Member, I s hould think that that Member would have the right to seek redress of some kind 
under Article 35 as it now stands.  In other words, there is no exception from the application of Article WT/DS512/R/Add.1  
 
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  35 to this or any other article. " The U.S. delegate noted that Article 3 5(2) permitted recourse to its 
procedure "whether or not [a measure] conflicts with the terms of this Charter. " Therefore, the 
negotiating history again demonstrates the negotiators understood that the essential security 
exception was "so wide in its cover age" that it was not justiciable; and that while the delegates 
considered that a claim for nullification or impairment "whether or not a measure conflicts " with the 
agreement might be available, they were clear that a Member could not claim that another Me mber 
had violated the security exception and therefore unsuccessfully invoked that exception.  
28. The drafting history outlined above shows that the self -judging nature of the security 
exception in what was to become Article XXI was an intentional choice of the CONTRACTING 
PARTIES.  In the course of the negotiation, the drafters continued to revise the general exception 
applicable to essential security, and agreed to separate it from the other exceptions so as to apply 
more broadly to the Charter as a whole . In so doing, they also agreed to the current formulation of 
the chapeau of Article XXI, which states that the exception would apply when a Member is taking 
"any action which it considers necessary for " the protection of its essential security interests.  
Therefore, both the text, in context, and the drafting history of Article XXI of the GATT 1994, confirm 
that a Member 's invocation of its essential security interests in defence of an action "taken in time 
of war or other emergency in international relatio ns" is self -judging and not justiciable by a dispute 
settlement panel.  
29. Response to Question 1 : We have used the term "jurisdiction " to refer to the ability of a Panel 
or the Appellate Body, under the terms of reference set by the DSB pursuant to the D SU, to organize 
and hear a dispute from a Member, including receiving submissions from the parties and third -
parties.  We have used the term "justiciability " to refer to the ability of the Panel or Appellate Body 
to make findings and provide a recommendatio n to the DSB.   
 
 
_______________  
 
 
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  ANNEX  E 
INTERIM REVIEW SECTI ON 
Contents  Page  
Annex  E-1 Interim Review  112 
 WT/DS512/R/Add.1  
 
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  ANNEX E -1 
INTERIM REVIEW  
1  INTRODUCTION  
1.1.  In compliance with Article 15.3 of the DSU, this Annex sets out the Panel's discussion and 
disposition of the arguments made at the interim review stage. The Panel has modified certain 
aspects of the Report in the light of the parties' comments where the P anel considered it appropriate, 
as explained below. In addition, the Panel has made a number of changes of an editorial nature to 
improve the clarity and accuracy of the Report, or to correct typographical and other non -substantive 
errors, including but no t limited to those identified by the parties.  
1.2.  As a result of the changes, the numbering of the footnotes in the final Report has changed from 
the Interim Report. References to Section headings, paragraphs numbers and footnotes in this Annex 
relate to the Final Report, unless otherwise specified.  
2  SPECIFIC REQUESTS FO R REVIEW  
2.1  General exchange between the parties regarding the characterization of the events 
of 2014 and subsequently  
2.1.  Russia requests the Panel to refrain from taking any position regarding certa in events that 
occurred in 2014 by "qualifying" them using terms such as "annexation" or "temporary occupation". 
Russia strongly opposes the use of these terms by the Panel, as the Panel's qualification of the 
relevant events, and considers that such terms  are used by Ukraine. Russia sets forth, in four 
paragraphs of its comments on interim review, Russia's own characterization of those events.1 Russia 
then requests specific changes to paragraphs 7.122, 7.13 7 and 7.144 of the Report.2 
2.2.  Ukraine strongly objects to what it alleges is Russia's use of the interim review stage of these 
proceedings to challenge the territorial integrity of Ukraine within its internationally recognized 
borders and to promote Russia's territorial claims over the  Autonomous Republic of Crimea and the 
City of Sevastopol. In particular, Ukraine considers that paragraphs 5 -10 of Russia's request for 
review of the interim report in essence ask the Panel to modify its interim report because certain 
actions invoked by R ussia in its request were alleged by Russia to have been "carried out in full 
compliance with international law" and because  "the situation in question cannot be qualified as 
'internationally recognized armed conflict'".3 Ukraine requests that, in light of  these observations, 
and in particular UN General Assembly Resolution No. 68/2 62 of 27 March 2014 (Exhibit UKR -89), 
the Panel not give any effect to paragraphs 5 -10 of Russia's request for review of the interim report.  
2.3.  The Panel notes that Russia has not p ointed to any places in the interim report where the Panel 
has in fact characterized the events of 2014 using terms such as "annexation" or "temporary 
occupation". Such terms appear in the Report in quotation marks to clearly signify attribution to a 
specific speaker (e.g. the UN General Assembly, or the Government of Ukraine) rather than to the 
Panel. The Panel recalls, moreover, that the third sentence of paragraph 7.5 of the Report clearly 
states that it is not the Panel's function to pass upon the parti es' respective legal characterizations 
of the events of 2014, or to assign responsibility for them. The Panel therefore considers it 
unnecessary to further comment in general terms on the above exchange between the parties. The 
Panel has, however, made cer tain modifications to paragraphs 7.122, 7.13 7 and 7.14 4 of the Report , 
which are discussed further in paragraphs 2.64 -2.66, 2.71 -2.74 and 2.80 -2.81 below . 
2.2  Section 7.1 of the Report - Overview of Ukraine's complaints  
2.4.  Ukraine requests a number of revisions t o the Panel's general summary of Ukraine's main 
complaints in paragraph 7.1 . More specifically, Ukraine requests that  paragraph 7.1(a) be revised 
to reflect Ukraine's arguments that: (i) the 2016 Belarus Transit Requirements affect "all goods" ; 
                                                
1 See Russia's request for review of the interim report, dated 14 February 2019, paras. 5 -8.  
2 Russia's requests regarding these changes are discussed below in paragraphs 2.64-2.66, 2.71 -2.74 
and 2.80 -2.81 of this Annex.  
3 Ukraine's com ments on Russia's request for review of the interim report, dated 28 February 2019, 
para. 11 (quoting from Russia's request for review, paras. 8 and 10).  WT/DS512/R/Add.1  
 
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  (ii) transi t from Ukraine of goods destined for the Kyrgyz Republic, unlike transit from Ukraine of 
goods destined for Kazakhstan, was only affected by the 2016 Belarus Transit Requirements as of 1 
July 2016 ; and (iii) the 2016 Belarus Transit Requirements also requi re goods to exit the territory 
of Russia at specified control points on the border between Russia and Kazakhstan. Ukraine considers 
that these changes are necessary for the sake of completeness and clarity. Russia responds generally 
that the Panel's descri ption of the measures for purposes of a "succinct overview" is an adequate 
reflection of Ukraine's complaints.  
2.5.  The Panel has decided to modify paragraph 7.1(a) to reflect these additional details of the 
2016 Belarus Transit Requirements, as requested by U kraine. However, the Panel has modified the 
language proposed  by Ukraine in order to maintain consistency with other paragraphs of the Report . 
2.6.  Ukraine also requests the Panel to revise paragraph 7.1(c)  to reflect that Ukraine referred, 
throughout its submissions, to the 2016 Belarus Transit Requirements as the 2016 general "transit 
bans".  Russia responds generally that the Panel's description of the measures for purposes of a 
"succinct overview" is an a dequate reflection of Ukraine's complaints. Moreover, Russia argues that 
Ukraine's choice of the term "ban" to describe the 2016 Belarus Transit Requirements is factually 
inaccurate because a "ban" should be understood as a total prohibition, while a restr iction is a 
limiting condition.   
2.7.  Throughout its submissions in these proceedings, Ukraine has referred to Russia's prohibition 
on all traffic in transit destined for Kazakhstan or the Kyrgyz Republic from transiting across  Russia 
directly from the Ukraine -Russia border (requiring instead that it detour via Belarus) as a "general 
transit ban" or a "ban on direct and indirect transit" applying to all goods in transit by road or rail 
transport . Ukraine has also stated that there are no exceptions to the "dire ct" ban and that there 
exists one "derogation" for "indirect" transit, namely, the so -called "Belarus route requirement".4 
The Panel considers that the term "ban" in such a context, and in the light of the nature of the transit 
bans that are part of the 20 16 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods, is 
potentially confusing.  Unlike the 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods, 
the prohibition on all road and rail transit destined for Kazakhstan or the Kyrgyz Republic  from 
transiting across Russia directly from the Ukraine -Russia  border does not ban transit across Russia 
outright. Rather, it restricts transit from Ukraine by requiring that such transit enter Russia from 
Belarus rather than crossing the Ukraine -Russia b order. In order to avoid the potential for confusion 
with the outright transit bans that are an inherent feature of the 2016 Transit Bans on Non -Zero 
Duty and Resolution No. 778 Goods, and to accurately reflect the essence of Ukraine's complaints, 
the Pane l refers to the Belarus route requirement that is an inherent aspect of the 2016 Belarus 
Transit Requirements (which Ukraine refers to as the 2016 "general transit ban" or as a derogation 
from a "general transit ban" on direct and indirect traffic in trans it5) as a "requirement". 
Subparagraph (c) of paragraph 7.1 makes clear that the scope of Ukraine's complaint regarding the 
de facto application of certain written measures is that both the actual bans referred to in 
subparagraph (b) and the requirements th at all other traffic in transit from Ukraine destined for 
Kazakhstan or the Kyrgyz Republic transit Russia via Belarus, referred to in subparagraph (a), are 
also being de facto applied to traffic in transit destined for other destinations. The Panel theref ore 
considers that its description of the measures at issue for purposes of the overview of 
Ukraine's  complaints in Section 7.1 of the Report is clear and accurate as is. The Panel has decided, 
however, to add a footnote reference to the end of paragraph 7 .1 of the Report, cross -referencing 
to paragraphs 7.2 64-7.275 of the Report, where the Panel sets forth the measures described by 
Ukraine in its panel request, Ukraine's subsequent explanation of how the measures described in its 
first written submission r elate to those described in its panel request, and the Panel's terminology 
referring to the same measures.  
2.8.  Ukraine further requests the Panel to revise paragraph 7.1(d)  to reflect the difference 
between the specific legal instruments implementing the 2014  Belarus -Russia Border Bans on Transit 
of Resolution No. 778 Goods as they apply to veterinary goods (Instruction No. FS -NV-7/22886), 
and to plant goods ( Instruction No. FS -AS-3/22903). Ukraine considers that this change is necessary 
                                                
4 See Ukraine's first written submission, paras. 32 -34. Ukraine concedes at paragraph 64 of its first 
written submission that the Belarus route requirement means that "indirect" traffic in transit "through that 
specific route is not banned", while at the same time referring to the Belarus route requirement as the "sole 
derogation to the ban" and referring in the next paragraph of its first written submission once again to the 
"general ban on direct and indirect traffic in transit."  (Ibid. paras. 64 -65.) 
5 See ibid. WT/DS512/R/Add.1  
 
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  to highlight that vete rinary goods and plant goods  are subject to "distinct measures". Russia 
responds generally that the Panel's description of the measures for purposes of a "succinct overview" 
of Ukraine's complaints is an adequate reflection of Ukraine's complaints.  
2.9.  The Panel notes that its description of the 2014 Belarus -Russia Border Bans on Transit of 
Resolution No. 778 Goods  in paragraph 7.1(d) is nearly identical to Ukraine's own description of 
these measures in section III.A. of its panel request. In particular, Ukraine's panel request does not 
distinguish between the measures as t hey affect veterinary goods listed in Resolution No. 778 as 
opposed to plant goods listed in Resolution No. 778. Moreover, Ukraine's panel request refers to the 
above -referenced legal instruments as among the "documents" through which the measures in 
quest ion are imposed, rather than as the measures themselves. That said, the Panel considers that 
it will improve the accuracy and clarity of the Report to note the different ways in which the two 
Instructions affect the transit of the covered veterinary goods,  and of the covered plant goods. The 
Panel has therefore decided to modify paragraph 7.1(d) to reflect these additional details of the 
2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 Goods, as requested by Ukraine. 
This issue also arises i n relation to Ukraine's request for review of paragraph 7.1 06(c) of the Report , 
discussed at paragraphs 2.51-2.52 of this Annex.  
2.3  Section 7.2 of the Report - Russia's response  
2.10.   Russia requests the Panel to delete from paragraph 7.3  the statement that "Russia  does not 
respond specifically to Ukraine's claims of WTO -inconsistency in relation to any of the challenged 
measures", because it has repeatedly claimed throughout these proceedings that all measures 
challenged by Ukraine are in full conformity with the W TO Agreement, including the GATT 1994 and 
Russia's Accession Protocol.  
2.11.   Ukraine opposes Russia's request, noting that the first sentence of paragraph 7.3 refers to 
the fact that Russia did not respond to Ukraine's claims, while paragraph 7.4 describes 
Russia's invocation of Article XXI(b)(iii), which is the reason why Russia considers that all of the 
measures are fully in conformity with the WTO Agreement, the GATT 1994 and Russia's Accession 
Protocol. Ukraine suggests that, should the Panel decide to modif y the first sentence of 
paragraph  7.3, it be reformulated to state that "Russia has not contested the arguments and 
evidence adduced by Ukraine in support of its claims under the GATT 1994 and Russia's Accession 
Protocol in relation to any of the challenge d measures." Ukraine considers that it must clearly be 
stated in the Report that Russia did not contest the arguments and evidence adduced by Ukraine in 
support of its claims, and instead, Russia alleged that certain claims and measures fell outside of 
the Panel's terms of reference and that the measures were justified under Article XXI(b)(iii) of the 
GATT 1994.  
2.12.   In its submissions in these proceedings, Russia did not contest the factual evidence or legal 
arguments adduced by Ukraine in support of its substantive claims that certain measures imposed 
by Russia were inconsistent with various provisions of the GATT 1994 and Russia's Working Party 
Report, as incorporated into its Accession Protocol by reference. The Panel agrees with Ukraine that 
it is impo rtant that this be conveyed clearly in the Report. Therefore, rather than delete the first 
sentence, as requested by Russia, the Panel has decided to modify the first sentence of 
paragraph  7.3 to clarify this in a manner similar to that suggested by Ukrain e.  
2.13.   Ukraine requests the Panel to revise its description of Russia's argument in paragraph 7.4  
to more accurately reflect Russia's statement at paragraph 16 of its first written submission. Ukraine 
observes that the footnote to paragraph 7.4 of the Report only refers to paragraph 16 of the 
Russian  Federation's first written submission. Ukraine notes that in paragraph 17, Russia referred 
to "the measures challenged by Ukraine those introduced by Decrees No. 1, No. 319, No. 560 and 
Resolution s No. 1, No. 147,  No. 276." Ukraine considers that the first sentence of paragraph 7.4 
therefore incorrectly implies that the statement in paragraph 16 of Russia's first written submission 
was made with respect to "the measures" included in paragraph 7.1 without any furthe r qualification. 
Russia opposes Ukraine's request, arguing that Ukraine substantially modifies and misrepresents the 
position that Russia has repeatedly expressed throughout these proceedings, namely, that all of the 
measures that Ukraine challenges in thi s dispute are among those that Russia took in response to 
the emergency in international relations that occurred in 2014.  WT/DS512/R/Add.1  
 
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  2.14.   The Panel considers that Russia has clearly stated that its invocation of Article XXI(b)(iii) 
applies to all of the challenged measure s in this dispute. The Panel has modified footnote 1 8 to 
paragraph 7.4 to refer to the places throughout Russia's submissions where it has asserted that all 
of the measures at issue in these proceedings, including the 2014 Belarus -Russia Border Bans on 
Transit of Resolution No. 778 Goods, are justified under Article XXI(b)(iii) of the GATT 1994.  
2.4  Section 7.3 of the Report - Factual background  
2.15.   Ukraine requests the Panel to remove the reference in paragraph 7.7  to the " Euromaidan  
events" and to the fact that , "following on" the Euromaidan events, Ukraine decided not to join the 
EaEU Treaty. Ukraine argues that neither party referred to these specific facts and that there is no 
basis for such facts in the arguments and evidence bef ore the Panel. Russia opposes 
Ukraine's  request on the basis that the " Euromaidan events" are a fact of common (public) 
knowledge and "o bjective historic and factual background" which were publicly available and 
confirmed by information provided by Ukraine  in its first written submission.  
2.16.   The Panel uses the term " Euromaidan  events", in quotation marks, as a legally neutral and 
widely  used term to refer to significant and well -known events in recent world history, for which 
Ukraine and Russia have radically  different legal characterizations.6 The Panel considers that the 
chronology of events outlined in paragraph 7.7 is factually accurate and therefore declines 
Ukraine's  request.  
2.17.   Russia requests the Panel to reflect in the text of paragraph 7.8  that: (i) Rus sia was among 
the countries that voted against UN General Assembly Resolution No. 68/262 of 27 March 2014 and 
UN General Assembly Resolution No. 71/205 of 19 December 2016 , and (ii) the information 
concerning the voting record for each resolution, containe d in footnote s 28 and 30 to paragraph 7.8. 
Ukraine considers that the Panel should reject Russia's request, as Russia has offered no explanation 
as to why such information should be moved from footnotes to the main text of paragraph 7.8.  
Ukraine notes that  Russia asks for the Panel "to provide proper balance of factual background set 
out in the Interim Panel Report", but Ukraine considers that this request relates to a part of the 
factual background that does not concern facts invoked by Russia.  
2.18.   The Panel s ees no reason why the information on the voting records for the two UN General 
Assembly Resolutions, which is reflected in footnotes 2 8 and 3 0 to paragraph 7.8, or the fact that 
Russia was among the countries that voted against both resolutions, should be moved to the main 
text of that paragraph. The Panel therefore declines to make the requested modifications.  
2.19.   Ukraine requests the Panel to modify footnote 2 8 to paragraph 7.8  in a different respect, 
i.e. to clarify that Russia has not referred to or relied on either of the UN General Assembly 
Resolutions. Russia opposes Ukraine's request on the ground that this Section of the Report merely 
provides the factual background. In that context, Russia considers that the existence and content of 
the UN General Asse mbly Resolutions , as well as the parties' respective positions on those 
resolutions , are relevant to the discussion at hand, but the parties' specific reliance on those 
resolutions in these proceedings  is not.  
2.20.   Section 7.3 of the Report is entitled "Factual background". Its purpose is to provide the 
relevant factual context for the seriou s deterioration of relations between Ukraine and Russia that 
occurred following a change of government in Ukraine in 2014. The existence of the two UN General 
Assembly Resolutions, their content, and whether Ukraine and Russia voted in support of them is 
part of this factual context. However, the fact that Russia did not seek to rely on the UN General 
Assembly Resolutions referred to in paragraph 7.8 in these proceedings  is not part of, or relevant 
to, this factual context. The Panel therefore declines Ukra ine's request.  
2.21.   Ukraine requests the Panel to delete the statement in paragraph 7.9  that "[t]he events in 
Ukraine in 2014 led to the imposition of economic sanctions against Russian entities and persons by 
certain countries" on the basis that no support is given for this statement. Russia opposes 
Ukraine's  request on the ground s that the statement in question is based on common knowledge, 
objective facts and publicly available information, in addition to being supported by 
                                                
6 See e.g. Russia's request for review of the interim report, dated 14 February  2019, para. 5 . WT/DS512/R/Add.1  
 
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  paragraphs  20-30 of Russia's second  written submission. Alternatively, Russia suggests that the 
Panel consider replacing the words "led to" with "were followed by" in paragraph 7.9.  
2.22.   Russia, for its part, requests a modification of paragraph 7.9 to delete the phrase "by certain 
countries".  
2.23.   The Panel agrees that it is factually correct to state that the events in Ukraine of 2014 were 
"followed by" the imposition of economic sanctions against Russian entities and persons, as 
suggested by Russia, because this chronology is evident from the respe ctive dates of the events in 
Ukraine and the date of Resolution No. 778. The Panel has therefore decided to make this 
modification to paragraph 7.9. The Panel sees nothing inaccurate in stating that such economic 
sanctions against Russia were imposed by "c ertain countries" and thus declines to make this 
requested modification.  
2.24.   Ukraine requests the Panel to remove the phrase "Russia responded" at the beginning of 
paragraph 7.10 . Ukraine considers that this phrase implies that the 2014 transit restrictions we re 
measures taken by Russia in response to the imposition of economic sanctions against 
Russian  entities and persons. However, Ukraine argues that Russia has never made this allegation 
in these  proceeding s, nor is the link between the 2014 transit restrict ions and the imposition of 
economic sanctions supported by the text of the measures introducing the 2014  transit  restrictions 
or evidence before the Panel of statements regarding those measures.  
2.25.   Russia confirms that the 2014 transit restrictions referred t o in paragraph 7.10 were indeed 
a response by Russia to the sanctions adopted by certain countries against Russia, or the decision 
by certain countries to adhere to such sanctions. Russia also considers that the text of 
paragraph  7.10 is supported by evide nce on the record, referring to the text of Decree No. 560 and 
Resolution No. 778, and paragraphs 20 -21 of Russia's second written submission. Finally, Russia 
considers that there is an explicit link between the 2014 transit restrictions and the imposition  of 
economic sanctions because the Rosselkhoznadzor  Instructions refer to Resolution No. 778, which 
itself refers to Decree No. 560, which in turn refers to Federal Law No. 281 -FZ and 
Federal  Law No. 390-FZ. 
2.26.   Since Section 7.3 of the Report is confined to s tating the factual events, the Panel has decided 
to modify the introductory part of the first sentence of paragraph 7.10 to read "[o]n 7 August 2014, 
Russia imposed import bans …" .  
2.27.   Ukraine and Russia each additionally advise that, since the filing of the parties' final 
submissions in these proceedings, Decree No. 560 has been further extended until 
31 December  2019 by Decree No. 420, which was adopted by the President of the 
Russian  Federation on 12 July 2018.  
2.28.   Although Decree No. 420 of 12 July 201 8 has not been submitted as an exhibit in these  
proceeding s, the Panel has revised the references to Decree No. 560 (in footnotes 3 2, 205 and 3 83) 
to reflect the fact that both parties indicate that Decree No. 560 has been further extended until 
31 December 2 019 by Decree No. 420.  
2.29.   Ukraine requests the Panel to modify the text of paragraph 7.12  to reflect that 
Resolution  No. 842, dated 13 August 2015, stated that the import ban under Resolution No. 778 
would apply "with respect to Ukraine … from the effective d ate of paragraph 1 of Resolution … No. 
959 … ". Furthermore, Ukraine asks that the language of paragraph 7.12 reflect that 
Resolution  No. 959 refers to "the economic part of the EU -Ukraine Association Agreement " and not 
to the "DCFTA ". Ukraine also proposes  that the same change be made to paragraph 7.13 given the 
wording used in Exhibit UKR -84. Russia objects to the modification on the grounds that it 
misleadingly suggests that this dispute is "merely an ordinary trade dispute", when Russia has noted 
on nume rous occasions that "this is beyond simple trade relations." Russia also asserts that 
Resolution No. 842 "set out a fork on the road which, inter alia , includes Resolution No. 959 but is 
not limited thereto."  
2.30.   Resolution No. 959 is dated 19 September 2014. On 13 August 2015, the Russian Government 
adopted Resolution No. 842, which refers specifically to Resolution No. 778 and Decree No. 560. 
Among other things, Resolution No. 842 amended Resolution No. 778 to add further countries to the WT/DS512/R/Add.1  
 
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  list of countries wh ose exports are subject to the import bans under Resolution No. 778, including 
Ukraine. However, with respect to Ukraine, Resolution No. 842 provided that the Resolution No. 778 
import bans would  be applied from the effective date of paragraph 1 of Resolut ion No. 959, but no 
later than 1 January 2016. The effective date referred to in Resolution No. 959 is 10 days from the 
Russian Government being notified that Ukraine has taken action to implement the economic part 
of the EU -Ukraine Association Agreement. The Panel has revised paragraphs 7.11 -7.13 of the Report 
to more clearly reflect the chronology of these facts and events. The Panel also clarifies in 
paragraph  7.11 that the text of Resolution No. 959 refers to the "economic part of the 
EU-Ukraine  Associa tion Agreement", rather than the "DCFTA". The Panel notes, however, that 
Ukraine itself has explained, at paragraph 60 of its opening statement at the second meeting of the 
Panel, that the "economic part" of the EU -Ukraine Association Agreement contains a "free trade 
agreement establishing the Deep and Comprehensive Free Trade Area (DCFTA)". The Panel has 
therefore decided to clarify , in footnote 27 to paragraph 7. 7, that the "economic part" of the 
EU-Ukraine Association Agreement contains a free trade agre ement establishing the DCFTA .  
2.31.   Ukraine also requests the Panel to delete the statement in the third sentence of 
paragraph  7.12 that negotiations were "aimed at achieving practical solutions to Russia's concerns 
about the DCFTA". Ukraine considers that the evidence cited in support (Exhibit UKR -80) offers no 
support for this statement. Russia does not respond specifically to this request.  
2.32.   Exhibit UKR -80 is an RBK news article which reports, among other things, Russia's concerns 
with the possibility that Ukraine would be in simultaneous free trade zones with the European Union 
and with Russia. In particular, the RBK news article refers to Russia's concerns that the 
EU-Ukraine  Association Agreement would involve the threat of re -export of European goods und er 
the guise of Ukrainian goods. Exhibit UKR -80 reports that the Ukrainian Minister of Foreign Affairs 
announced (on 1 December 2015) the "failure of negotiations on the risks of the association of Kiev 
with the European Union. The head of the foreign affa irs agency called the terms suggested by 
Moscow 'unacceptable '." The Russian Minister of Economic Development is also reported to have 
stated that he expected the parties would be able to reach an agreement on the Russian proposals 
later in December 2015, with the news article noting that the next round of negotiations was 
scheduled for 21 December 2015. A subsequent UNIAN news agency article of 30 December 2015 
(Exhibit UKR -78) reported that on 22 December 2015, the Russian State Duma had unanimously 
passe d a law to suspend the FTA with Ukraine, effective 1 January 2016, citing alleged conflicts 
between Ukraine's obligations under the EU -Ukraine Association Agreement and the provisions of its 
FTA with Russia regarding duty -free trade. The Panel considers th at it is logical to infer that the 
negotiations that were scheduled for 21 December 2015 ultimately did not succeed in finding 
solutions to Russia's concerns regarding the EU -Ukraine Association Agreement in a manner that 
was acceptable to all parties, and  that accordingly, the Russian State Duma  took action purporting 
to suspend Russia's obligations under the CIS -FTA as regards Ukraine. The Panel therefore considers 
that there is a sufficient basis in the evidence to support the factual statement in the th ird sentence 
of paragraph 7.12 of the Report. The Panel has, however, modified the sentence by deleting the 
word "practical" and changing footnote 3 7 to reflect that this sentence, as modified, is supported by 
Exhibit UKR -80 read in conjunction with Exhibi t UKR -78. The Panel has also moved what was 
previously paragraph 7.14 to paragraph 7.13 because of the relationship between this paragraph 
and the discussion in paragraphs 7.9 -7.12 of the Report.  
2.33.   Ukraine requests the Panel to delete the references to the c onsultations requests in 
WT/DS532/1 and WT/DS525/1 in paragraphs 7.14, 7.15  and 7.18(a) . Ukraine considers that, 
notwithstanding the clarifications provided in footnotes 4 2 and 49, the inclusion of the references to 
these disputes "in essence implies a con nection" between the measures at issue in those disputes 
and the facts in paragraphs 7.5 through 7.19 of the factual background for this dispute. Ukraine 
argues that there is no basis in any of the submissions before the Panel for such a connection, nor 
does the Panel have any jurisdiction to refer to those measures given that its terms of reference do 
not include the matters in DS532 or DS525. Ukraine also suggests that the statement "since 2014" 
in the first sentence of paragraph 7.14 is incorrect, as mad e clear in subparagraph (c) of that 
paragraph, which states that certain measures are alleged to have been in place since 2013. Russia 
objects to the requested modifications, noting that the references to WT/DS532/1 and WT/DS525/1 
are made as part of the f actual background and that the Panel does not provide any evaluation of 
the measures at issue in those disputes. Russia also requests that, should the Panel make the 
requested modifications, it nevertheless reflect in the factual background section the evi dence on 
the record regarding the measures adopted by Ukraine as set forth in paragraphs 24 -30 of WT/DS512/R/Add.1  
 
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  Russia's  second written submission, containing information that Russia states is "highly important 
for establishing the factual background for the development s after 2014."  
2.34.   The Panel has stated explicitly in footnotes 4 2 and 49 of its Report that the references to the 
alleged measures that are the subject of the consultations requests in WT/DS532/1 and WT/DS525/1 
are made solely as factual background and that t he Panel does not link the consultations requests 
in those disputes to the present proceedings. The Panel does not engage in any evaluation or further 
discussion of the measures described in those consultations requests. The Panel therefore rejects 
Ukraine 's request. The Panel has, however, modified the introductory sentence to paragraph 7.14 
to clarify that Russia is alleged by Ukraine to have banned imports of various Ukrainian goods since 
2013, rather than 2014.  
2.35.   Ukraine additionally requests that, shoul d the Panel decide to retain the references to the 
measures at issue in WT/DS525/1, it add a new paragraph reflecting Ukraine's argument that the 
measures challenged by Ukraine in the present dispute were taken "before Ukraine allegedly adopted 
any of the measures to which the Russian Federation referred in these proceedings" . Ukraine also 
requests  that the Panel add a footnote to paragraph 7.1 8, referring to paragraph 55 of 
Ukraine's  opening statement at the second meeting of the panel.  
2.36.   Paragraph 7.18 alre ady sets forth, in the description of the alleged measures challenged by 
Russia in its consultations request in WT/DS525/1, the dates on which Russia alleges such measures 
were adopted by Ukraine. There is no basis for the Panel to make any other statement  regarding 
such measures, which as Ukraine has previously noted, are not before this Panel. The Panel therefore 
declines to add the new paragraph requested by Ukraine.  
2.37.   Ukraine requests the Panel to change the reference in paragraph 7.13  to 
Federal  Law No. 410-FZ "purporting to suspend" the CIS -FTA with respect to Ukraine and instead 
use the term "suspending". Ukraine considers that the use of the verb "purport" implies that the law 
merely intended to suspend the CIS -FTA, whereas the law expressly states th at the State Duma  
decided to "suspend" the CIS -FTA. Ukraine also requests that the Panel add to the same paragraph 
that the Russian State Legal Department "stated" (rather than "indicated") that "such an act 
constitutes a fundamental change of circumstance s, which were essential for Russia at the conclusion 
of the [CIS -FTA]". Ukraine considers this is necessary to reflect the "entire explanation" given by 
the Russian State Legal Department as to the suspension of the CIS -FTA. Russia does not respond 
specifi cally to these requests.  
2.38.   The Panel does not take a position on whether Federal Law No. 410 -FZ did effectively suspend 
the CIS -FTA with respect to Ukraine. For this reason, the Panel considers it accurate to state that 
Federal Law No. 410 -FZ purports to sus pend the CIS -FTA with respect to Ukraine. Accordingly, the 
Panel declines this aspect of Ukraine's request. The Panel has decided to grant the second aspect of 
Ukraine's request, and accordingly has modified the second sentence of paragraph 7.13 to include  
the entire statement of the Russian State Legal Department in Exhibit UKR -84.   
2.39.   Ukraine requests the Panel to: (i) modify paragraph 7.16(a)  to add a footnote reference to 
Resolution No. 959 in order to provide authority for this statement, (ii) modify the description of the 
measures in paragraph 7.16(c)  to clarify that the 2016 Belarus Transit Requirements also specify 
that the traffic in transit in question may only leave the territory of Russia from specific points on 
the Russia -Kazakhstan border, and (iii) remove the term "temporary" from the description of the 
2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods (as well as from  the descriptions 
in paragraphs 7.34 6 and 7.347 and footnotes 461 and 487). Russia refers only to the last of 
these requests, opposing the request on the ground that the text of the instrument adopting the 
2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods refers to the bans in question 
as "temporary" and has an expiry date.  
2.40.   The Panel has decided to add the requested footnote reference to paragraph 7.16(a) and to 
modify paragraph 7.16(c) to reflect the additional details of the 2016 Belarus Tr ansit Requirements, 
as requested by Ukraine, because these modifications enhance the clarity and accuracy of the 
Report. As regards Ukraine's third requested modification, the Panel notes that the text of 
Decree  No. 319 describes the bans in question as "t emporary". The Panel therefore has decided to 
place the term "temporary" in quotation marks where Decree No. 319 is referred to for the first time.  WT/DS512/R/Add.1  
 
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  2.41.   Finally, with respect to Section 7.3 of the Report  more generally, Ukraine requests that the 
Panel remove f rom this section any reference to facts for which there is no basis in the 
parties'  submissions or the evidence before it.   
2.42.   Aside from the specific comments that have been addressed by the Panel above 
(in paragraphs 2.15-2.40 of this Annex), Ukraine does not identify any other "facts" for which it 
alleges there is no basis in the parties' submissions or the evidence before the Panel. The Panel 
considers that Section 7.3 of the Report sets forth facts that are common knowledge, in the sense 
that they cannot  reasonably be disputed, and moreover, are supported directly or indirectly (or both) 
by evidence submitted in these proceedings. The Panel therefore declines to make any additional 
modifications to the Report in response to this general request of Ukraine . 
2.5  Section 7.5 of the Report - Russia's invocation of Article XXI(b)(iii) of the GATT 1994  
Ukraine's main arguments  
2.43.   Ukraine  requests numerous changes to the summary of Ukraine's arguments  in 
paragraphs  7.31-7.34. Russia objects to certain of Ukraine's proposed modifications on the basis 
that the proposed wording was nowhere reflected in Ukraine's submissions in these proceedings and 
requests that Ukraine's assertions regarding established facts be qualified to sig nify that these are 
assertions made by Ukraine and not factual statements by the Panel.  
2.44.   The Panel has made a number of modifications to the summary of Ukraine's arguments in 
paragraphs 7.31 -7.34 of the Report, in response to Ukraine's requests. The summary  has been 
modified to commence with Ukraine's jurisdictional arguments, before describing Ukraine's main 
arguments concerning the burden of proof, and then the standard of review under the chapeau of 
Article XXI(b). The Panel has based its revisions of the  summary of Ukraine's main arguments on 
Ukraine's drafting suggestions, but in certain places uses the language from Ukraine's submissions , 
rather than the language that Ukraine proposes  in its comments on  interim review. Moreover, the 
Panel notes that the  summary of arguments in Section 7.5.1 is expressly confined to the "main" 
arguments of the parties. Where relevant to the analysis, the Panel refers to the more specific 
arguments advanced by the parties as part of the Panel's analysis.  
The measures at i ssue and their existence  
2.45.   Ukraine requests a number of modifications to the description of the measures at issue in 
paragraph 7.10 6.  
2.46.   First, as concerns paragraph 7.106(a) , Ukraine argues that the Panel has failed to refer to 
what Ukraine calls the "2016 ge neral transit ban prohibiting traffic in transit of all goods from the 
territory of Ukraine, destined for the territory of Kazakhstan and the Kyrgyz Republic, from entering 
and passing through the territory of the Russian Federation at the border between U kraine and the 
Russian Federation". Ukraine argues that the Panel's description of the "2016 general transit ban" 
fails to reflect that such a "ban" has a wider product scope than the "2016 product specific transit 
bans". Ukraine also argues that the Panel 's description of the so -called "Belarus route requirement" 
aspect of the 2016 Belarus Transit Requirements does not mention that entry to Russia via Belarus 
is permitted only via two entry control points at the Belarus -Russia border, and that exit from Ru ssia 
to Kazakhstan is permitted only at three exit control points on the Russia -Kazakhstan border, or 
provide specific details regarding the conditions attached to the identification and registration card 
components of the measures. Russia considers that U kraine's comments are an attempt to modify 
the scope of the measures at issue from that provided in Ukraine's panel request, and thus opposes 
these requests for modifications.  
2.47.   The Panel has previously observed (in paragraph 2.7 of this Annex) that througho ut its 
submissions, Ukraine has referred to Russia's prohibition on all traffic in transit destined for 
Kazakhstan or the Kyrgyz Republic from transiting across Russia directly from the Ukraine -Russia 
border  (requiring instead that it detour via Belarus and be subject to a number of other additional 
requirements) as a "general transit ban", or a "ban on direct and indirect transit" applying to all 
goods in transit by road or rail transport, for which there ar e no exceptions to the "direct" ban and 
for which there exists one "derogation" for "indirect" transit, namely, the so -called "Belarus route WT/DS512/R/Add.1  
 
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  requirement".7 The Panel considers that use of the term "ban" on direct and indirect transit with a 
derogation for indirect transit through the Belarus route is an unclear way to describe the basic 
import of the 2016 Belarus Transit Requirements. The measures themselves do not prohibit outright 
all traffic in transit from Ukraine, but require (among other things) that such traffic may transit 
across the territory of Russia only from specific control points on the Belarus -Russia border. 
Accordingly, the Panel has decided to refer to these measures as "requirements" rather than "bans". 
The Panel's description of the opera tion of the Belarus route requirement component of the 
2016 Belarus Transit Requirements is clearly stated in subparagraphs 7.106(a) and 7.35 7(a) of the 
Report.8 The Panel also considers that the use of the term "requirements" to refer to the 
2016 Belarus Transit Requirements, and "ban" to refer to the 2016 Transit Bans on Non -Zero Duty 
and Resolution No. 778 Goods also makes clear that the "requirements" apply generally to all traffic 
in transit, while the "bans" apply to specific goods in transit. The Pan el therefore considers that there 
is no basis for Ukraine's assertion that the Panel has neglected to refer to the so -called "ban" aspect 
of the 2016 Belarus Transit Requirements.  
2.48.   On the other hand, the Panel considers that the requested modifications to the description of 
the 2016 Belarus Transit Requirements, to provide certain additional details will improve the overall 
clarity and accuracy of the Report . These additional details concern : (i) the scope of the 2016 Belarus 
Transit Requirements, as applyi ng to all international cargo transit by road and rail, (ii) the content 
of the conditions related to identification seals and registration cards , and (iii) the permissible control 
points for procuring these identification seals and registration cards, at specific entry points on the 
Belarus -Russia border and exit points on the Russia -Kazakhstan border , all of which are part of the 
2016 Belarus Transit Requirements. The Panel has therefore decided to modify the relevant 
paragraphs of the Report to reflect t hese additional details of the 2016 Belarus Transit Requirements, 
both in paragraph 7.106( a) and elsewhere.   
2.49.   Second, as concerns paragraph 7.106(b) , Ukraine argues that the Panel's description of the 
2016 Transit Bans on Non -Zero Duty and Resolution No. 7 78 Goods fails to refer to the request and 
authorization requirements that apply for traffic in transit of non -zero duty and Resolution No. 778 
goods to cross the Belarus -Russia border, and the transit restrictions that would apply, should a 
derogation be granted, to traffic in transit passing via the Belarus route.  Russia considers that 
Ukraine's comments are an attempt to modify the scope of the measures at issue from that provided 
in Ukraine's panel request, and thus opposes these requests for modificati ons. However, Russia 
requests that, should the Panel modify paragraph 7.106(b), it note that traffic in transit subject to 
the 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods may only occur pursuant to 
a derogation from the bans, which must  be authorized by Russia on the request of Kazakhstan 
and/or the Kyrgyz Republic.  
2.50.   The Panel notes that one of Ukraine's complaints (at paragraph 7.1(c) of the Report) is that, 
although there is a procedure which exceptionally permits transit of goods subje ct to the 
2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods, it is unclear how this derogation 
procedure operates , and to date, no such derogations have been granted.  Nonetheless, the Panel 
has decided to amend the description of the 2016 Tr ansit Bans on Non -Zero Duty and Resolution 
No. 778 Goods to reflect the procedure for requesting a derogation, as well as the additional 
conditions that would apply, should such a derogation be granted , both in paragraph 7.106(b) and 
elsewhere .  
2.51.   Third, as concerns paragraph 7.106(c) , Ukraine argues that the Panel's description of the 
2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 Goods fails to refer to (i) the 
distinct product scope of the measures introduced by Rosselkhoznadzor Instructi on No. FS -NV-
7/22886 of 21 November 2014 (concerning veterinary goods included in the list annexed to 
Resolution No. 778) and Rosselkhoznadzor Instruction No. FS -AS-3/22903 of 21 November 2014 
(concerning plant goods included in the list annexed to Resolution No. 778); (ii) the distinct 
requirements that Rosselkhoznadzor Instruction No. FS -AS-3/22903 impose s on traffic in transit of 
                                                
7 See Ukraine's first written submission, paras. 32 -34. Ukraine concedes at paragraph 64 of its first 
written submission that the Belarus route requirement means that "indirect" traffic in transit "through that 
specific route is not banned", while at the  same time referring to the Belarus route requirement as the "sole 
derogation to the ban" and referring in the next paragraph of its first written submission once again to the 
"general ban on direct and indirect traffic in transit."  
8 The Panel also examin es these measures based on a close analysis of the text of Ukraine's panel 
request (and the differences between the presentation of the measures in Ukraine's panel request and first 
written submissions) in paras . 7.265-7.266 and  7.272-7.273 of the Report.  WT/DS512/R/Add.1  
 
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  plant goods i ncluded in the list annexed to Resolution No. 778; and (iii) the fact that the 
requirements applicable to plant goods included in the list annexed to Resolution No. 778 apply, by 
virtue of Rosselkhoznadzor Instruction No. FS -AS-3/22903, as of 24 November 2 014. Russia 
considers that Ukraine's comments are an attempt to modify the scope of the measures at issue 
from that provided in Ukraine's panel request, and thus opposes these requests for modifications.  
2.52.   The Panel has already referred (in paragraph 2.9 of this Annex) to Ukraine's conflation, in its 
submissions and in its request for review of the interim report, of the measures at issue with the 
legal instruments implementing those measures. However, the Panel has no objection to providing 
greater detail co ncerning the different ways in which the two  Rosselkhoznadzor Instruction s affect 
the transit of veterinary goods, and of plant goods. The Panel has therefore decided to modify the 
description of the 2014 Belarus -Russia Border Bans on Transit of Resolution  No. 778 Goods to this 
effect, both in paragraph 7.106(c) of the Report and elsewhere.  
Whether the measures were "taken in time of war or other emergency in 
international relations" within the meaning of subparagraph (iii) of Article XXI(b)  
2.53.   Ukraine request s two modifications to the description of Russia's position on whether the 
measures were "taken in time of war or other emergency in international relations" in 
paragraph  7.112. First, Ukraine requests that the phrase "imposing measures at issue" in the 
sentence "Russia … refers to an emergency in international relations that occurred in 2014, which 
led Russia to take various actions, including imposing the measures at issue" be replaced with "the 
measures introduced by Decrees No. 1, No. 319, No. 560, and Resolutions No. 1, No. 147, and No. 
276". Ukraine considers that the statement made by Russia had no bearing on the "2014 transit ban 
and other transit restrictions" or the "de facto application of the 2016 general and product -specific 
bans in Decree No. 1 , as amended".  
2.54.   Second, Ukraine requests that the Panel modify, in the second sentence of paragraph 7.112, 
its reference to Russia's statement at paragraph 6 of its closing statement at the first meeting of the 
Panel. Ukraine requests that the Panel remove  the phrase "the dispute raises" and replace it with 
"the WTO has no competence over [the issues concerning politics, national security and international 
peace and security]".  
2.55.   Russia objects to Ukraine's proposed modifications to Russia's arguments, statin g that 
paragraph 7.112 correctly summarizes Russia's position, in particular as reflected in paragraph 6 of 
Russia's closing statement at the first meeting of the Panel.  
2.56.   The Panel considers that the first sentence of paragraph 7.112 accurately states 
Russi a's position in these proceedings. By way of support, the Panel notes that in paragraph 16 of 
Russia's first written submission, Russia states that it "took a number of actions which the 
Russian  Federation considered necessary for the protection of essenti al security interests, including 
those that Ukraine challenges in the present dispute". This is a general reference to the challenged 
measures, including the 2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 Goods 
as well as the so -called "d e facto measure". In paragraph 17 of Russia's first written submission, 
Russia does refer specifically to "the measures introduced by Decrees No. 1, No. 319, No. 560, and 
Resolutions No. 1, No. 147, and No. 276", but only to state that these measures were "adopted in 
accordance with the Federal Law of 30 December 2006 No. 281 -FZ 'On the Special Economic 
Measures'". Subsequently, in paragraph 19, Russia states that " the measures adopted , in particular 
Decrees No. 1, No. 319, No. 560 and Resolutions No. 1, No . 147, No. 276 … were introduced by the 
Russian Federation at the time of emergency in international relations as actions that are necessary 
for the protection of essential security interests of the Russian Federation, as provided for in the 
GATT Article X XI." Finally, in paragraphs 33 and 74 of Russia's first written submission, Russia states 
that the "2014 transit ban and other transit restrictions" and the "de facto application of the 2016 
general and product -specific bans in Decree No. 1, as amended", r espectively, should they be found 
to exist, are covered by Article XXI(b)(iii) of the GATT 1994.  
2.57.   As for the requested modification to the second sentence of paragraph 7.112, the Panel 
considers that the sentence accurately reflects Russia's position. The P anel has added a footnote 
reference to the third paragraph of Russia's closing statement at the second meeting of the Panel to 
clarify this.   WT/DS512/R/Add.1  
 
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  2.58.   Ukraine requests the Panel to modify the description of Ukraine's position regarding whether 
the measures were "taken in time of war or other emergency in international relations" in 
paragraph  7.113  to reflect Ukraine's argument that Russia has "not satisf ied its burden of proof 
by failing to … adequately identify and establish[] what specific emergency in international relations, 
[] causing … the adoption of each measure at issue, occurred in 2014 and continued to exist during 
these panel proceedings." Rus sia responds that it does not agree with Ukraine's reasoning in 
requesting these modifications but does not oppose such modifications.  
2.59.   The Panel does not consider that Ukraine's proposed modification to paragraph 7.113 changes 
the meaning of that sentence in a way that improves the accuracy of the Report or improves the 
clarity of the sentence. The Panel has therefore decided to decline U kraine's request.  
2.60.   Additionally, Ukraine requests the Panel to adjust footnote 192 to paragraph 7.113 to 
remove the text stating that Ukraine "professes not to know what Russia means when it refers to 
an emergency in international relations that arose in 2 014". According to Ukraine, when the text of 
paragraph 142 of Ukraine's second written submission and paragraph 64 of Ukraine's opening 
statement at the second meeting of the Panel are considered, Ukraine's position was "in essence" 
that there was no evide nce or argument ation before the Panel to show the existence of the particular 
emergency in international relations.  
2.61.   The Panel notes that the text of the provisions of Ukraine's submissions referred to above 
clearly distinguish between : (i) the question of the identity of the emergency in international 
relations, and (ii) the evidence and argument ation to establish the existence of any such emergency. 
This was also Russia's understanding of Ukraine's position, for example, in paragraph 4 of Russia's 
closing statement at the second meeting of the Panel. The Panel therefore considers that the text of 
footnote 192 accurately describes Ukraine's position and declines to make the requested 
modification.  
2.62.   As regards the references to Ukraine's 2016 Trade Policy Rev iew Report in paragraphs 7.115 
and 7.118  and footnote 198, Ukraine requests the Panel to confirm that, during the second 
substantive meeting, Russia referred specifically to paragraph 1.13 of that document, and if it did 
not, to modify references to remove  the citation specifically to paragraph 1.13. Russia does not 
respond specifically to this request.  
2.63.   The Panel confirms that, in response to a question from the Chair posed to Russia during the 
second substantive meeting, Russia referred specifically to par agraph 1.13 of Ukraine's 2016 Trade 
Policy Review Report.  
2.64.   Both parties request modifications to paragraph 7.122 . Russia requests that the Panel state 
that, by December 2016, the situation between Ukraine and Russia was recognized by "certain 
countries" as involving armed conflict, rather than being "recognized internationally as involving 
armed conflict." Russia argues that the Panel should take into account the number of countries 
(including Russia) that voted against UN General Assembly Resolution No. 71/ 205 of 19 December 
2016 and that, in the light of this factor, the situation cannot be considered to be "internationally 
recognized armed conflict". Russia also asserts that it is not a party to any armed conflict that 
Ukraine is involved in, "including th e military conflict in the east of Ukraine, that among other factors 
pose a threat, in particular, to the security of the Russian State border."  
2.65.   Ukraine does not comment specifically on Russia's request ; rather, Ukraine requests the Panel 
to remove from footnote 204 to paragraph 7.122  the statement that UN General Assembly 
Resolution No. 71/2015 "makes explicit reference" to the Geneva Conventions of 1949, "which apply 
in cases of declared war or other armed conflict  between High Contracting Parties".  
2.66.   As pr eviously explained in paragraph 7.8 of the Report, in UN General Assembly Resolution 
No. 71/205 of 19 December 2016, the UN General Assembly condemned what is referred to in the 
Resolution as the "temporary occupation of part of the territory of Ukraine" b y Russia. This Resolution 
refers to Russia as an "occupying Power", and to the prohibition under the Geneva Conventions of 
12 August 1949 for the occupying Power to compel a protected person to serve  in its armed or 
auxiliary forces. Moreover, as noted pre viously in footnote 3 0 of the Report, UN General Assembly 
Resolution No. 71/205 of 19 December 2016 received 70 votes in favour, 26 against (including 
Russia) and 77 abstentions. The Panel considers that , as the resolution was adopted by the UN WT/DS512/R/Add.1  
 
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  General Assembly with the constitutionally required majority, it constitutes the position of the UN 
General Assembly . Moreover, the fact that the Resolution makes express reference to the 
Geneva  Conventions of 12 Augus t 1949 (which by their terms apply in cases of declared war or other 
armed conflict between High Contracting Parties), means that it is accurate to state that by 
December 2016, the situation between Ukraine and Russia was recognized by the UN General 
Assem bly as involving armed conflict. The Panel therefore declines both parties' requested 
modifications to paragraph 7.122. However, in order to improve the precision of this aspect of the 
Panel's analysis, the Panel has decided to replace the term "internatio nally" with the phrase "by the 
UN General Assembly".  
Whether the conditions of the chapeau of Article XXI(b) of the GATT 1994 are 
satisfied  
2.67.   Ukraine expresses concern that, in paragraph 7.128 , the description of Ukraine's position 
regarding the scope of a M ember's discretion to determine its own level of protection of its essential 
security interests, juxtaposed with its argument that this does not mean that a Member may 
unilaterally define what its essential security interests are, "incorrectly suggests tha t Ukraine argued 
that there is no discretion in Member States' definition of its essential security interests" . Ukraine 
requests the Panel to modify the third sentence of paragraph 7.128 to incorporate 
Ukraine's  observation in paragraph 142 of its opening statement at the first meeting of the Panel 
that, because the phrase "essential security interests" forms part of the covered agreements, it is 
to be interpreted in accordance with customary rules of interpretation of public international law. 
Russia does not respond specifically to this request.  
2.68.   The Panel agrees that the requested modification accurately reflects Ukraine's arguments and 
thus has decided to make the modification to paragraph 7.128 of the Report.  
2.69.   With respect to the last sentence of paragra ph 7.128 , which refers to Ukraine's argument 
that Russia cannot invoke Article XXI(a) of the GATT 1994 to evade its burden of proof, Russia notes 
that the Panel has not referred to Russia's arguments regarding Article XXI(a) or examined those 
arguments. Ru ssia requests the Panel to rectify this omission. Ukraine requests only that, should 
the Panel include a sentence explaining Russia's reliance on Article XXI(a) of the GATT 1994, it note 
that Russia did not invoke this provision in relation to Ukraine's cl aims under Articles X:1 and X:2 of 
the GATT 1994, or paragraphs 1426, 1427 or 1428 of Russia's Working Party Report.  
2.70.   The Panel agrees to modify paragraph 7.128 by adding to the last sentence of that paragraph, 
a reference to Russia's arguments regarding A rticle XXI(a). The Panel disagrees with Ukraine that 
Russia did not invoke Article XXI(a) in relation to Ukraine's claims under Articles X:1 and X:2 of the 
GATT 199 4 or its claims under Russia's Accession Protocol, based on its reading of the references to  
Russia's submissions in footnote 21 0 of the Report with Russia's arguments at paragraph 37 of its 
first written submission. The Panel does not consider that it is necessary for the resolution of this 
dispute for it to further address the parties' argument s concerning Article XXI(a) and therefore 
declines Russia's request that the Panel examine the arguments pertaining to Article  XXI(a) of the 
GATT 1994.  
2.71.   Russia asserts that it is not a party to any armed conflict that Ukraine is involved in, including 
military conflict in the east of Ukraine. Russia therefore requests the Panel to modify the first 
sentence of paragraph 7.13 7 to remove the description of the 2014 emergency as "one involving 
armed conflict with a neighbouring country and exhibiting the other features identified by Russia". 
Ukraine does not respond specifically to this request.  
2.72.   The Panel does not take a position on Russia's involvement in any armed conflict with Ukraine. 
It is not necessary for the Panel to make any such assessment for purpose s of the point that the 
Panel makes in paragraph 7.13 7 of the Report. The Panel has therefore decided to modify the first 
sentence of paragraph 7.13 7 so that it conforms to the Panel's description of the nature of the 
2014 emergency in paragraph 7.143.  
2.73.   Russia also requests the Panel to elaborate upon the last sentence of paragraph 7.13 7 by 
providing guidance as to what might be an indication of invocation of Article XXI of the GATT 1994 
that is used "simply as a means to circumvent" one's obligations under the GATT 1994. Ukraine WT/DS512/R/Add.1  
 
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  considers that the Panel need not respond to Russia's request, as Russia has not explained why such 
guidance is required for the positive resolution of this dispute.  
2.74.   The Panel does not consider that any elaboration of the last senten ce of paragraph 7.136 
would improve the clarity or coherence of the Panel's reasoning, and therefore declines this request.  
2.75.   Ukraine objects to the inclusion of the second sentence of paragraph 7.14 1 (which states 
that Ukraine does not indicate whether it considers Ukraine's decision to pursue economic integration 
with the European Union rather than with Russia, and consequently the 2016 measures, to be related 
also to the emergency in international r elations that had arisen between Ukraine and Russia in early 
2014). Ukraine requests that the Panel refer instead to paragraphs 60 through 63 of 
Ukraine's  opening statement at the second meeting of the Panel, in which Ukraine considers that it 
"argued and showed" that its decision to pursue economic integration with the European Union was 
taken well before 201 4 or 201 6. Russia does not respond specifically to this request.  
2.76.   The Panel disagrees that Ukraine has argued or demonstrated that its decision to purs ue 
economic integration with the European Union was taken "well before" 2014 or 2016. While 
negotiations on the EU -Ukraine Association Agreement may have begun in 2008, as Ukraine states 
in paragraph 60 of its opening statement at the second meeting of the  Panel, the political part of 
the EU -Ukraine Association Agreement was signed on 21 March 2014, while the economic part, 
including the DCFTA, was signed on 27 June 2014. The news reports of Russia's reaction to 
Ukraine's  decision to enter into a free trade  area with the European Union, discussed in 
Exhibits  UKR-78, UKR -79 and UKR -80, also support the inference that the operative decision was 
made by Ukraine in 2014, through its signing of the EU -Ukraine Association Agreement, and not in 
2008, when Ukraine b egan discussions with the European Union. The Panel notes that Ukraine states 
(at paragraph 24 of its first written submission) that "[i]nstead of becoming a party to the EaEU 
Treaty, Ukraine concluded, in 2014 , an Association Agreement with the European U nion", indicating 
that, from the perspective of Ukraine -Russia relations, the definitive decision on the political and 
economic direction of Ukraine was taken in 2014.9 In sum, the Panel sees nothing in paragraphs 60 
through 63 of Ukraine's opening stateme nt at the second meeting of the Panel that renders 
inaccurate or misleading the second sentence of paragraph 7.14 1. The Panel therefore declines to 
make the requested modifications.  
2.77.   Russia requests that the Panel refrain from stating, in paragraph 7.14 3 and elsewhere in 
the Report (i.e. paragraphs 7.9, 7.119, 7.122 and 7.14 2) that sanctions applied by other 
countries against Russia from 2014 were responses to the 2014 emergency in international relations. 
Rather, Russia requests the Panel to confine itself  to stating that sanctions were imposed against 
Russia , and to abstain from any further evaluation of such sanctions. Ukraine responds by noting 
that it has requested that paragraph 7.9 be deleted. Ukraine also notes that Russia does not propose 
that the p hrase "that other countries had imposed" in the final sentence of paragraph 7.14 3 be 
deleted, and in the light of the above, the Panel need not give effect to Russia's request with respect 
to paragraphs 7.119, 7.122 and 7.14 2. 
2.78.   The Panel notes that, despite  Russia's request above, in its comments on Ukraine's requests 
for interim review, Russia opposed Ukraine's request that the Panel delete paragraph 7.9 (see 
paragraph 2.21 of this Annex), arguing that the statement in paragraph 7.9 that the events in 
Ukraine in 2014 led to the imposition of economic sanctions against Russian entities and persons 
"comes from common knowledge, objective facts and publicly available information as well as 
paragraphs 20 to 30 of the Second Written Submission of the Russian Fede ration."10 Moreover, in 
its second written submission, Russia refers to the decision of certain states or unions of states that 
have decided to apply economic sanctions in respect of Russian legal and natural persons, before 
referring specifically to the Eu ropean Union, which Russia accuses of attempting to "shift focus from 
such unilateral actions that are applied in respect of Russia, in particular by the EU and Ukraine in 
violation of the UN Charter and that are impairing the authority of the UN Security Council."11 Russia 
refers specifically in a footnote to two paragraphs from the European Union's response to Panel 
Question No. 2 to the third parties, where the European Union discusses the unspecified events of 
                                                
9 Emphasis added.  
10 Russia's comments on Ukraine's request for review of the interim report, dated 28 February 2019, 
para. 12.  
11 Russia's second written submission, paras. 20 -21. 
 WT/DS512/R/Add.1  
 
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  2014, before referring to the "events in 201 4 in the Crimean peninsula and in Eastern Ukraine".12 
Russia then states, with respect to this portion of the European Union's submission, that Russia 
considers the measures at issue to be a reaction to an internationally wrongful act and/or to an 
unfriendl y act of a foreign state or its bodies and officials which poses  a threat to the interests and 
security of Russia and/or violates the rights and freedoms of its citizens.13 Finally, in its opening 
statement at the second meeting of the Panel, Russia again r efers to "[u]nilateral measures, 
sanctions, imposed by [a neighbouring country that had lost control of its side of the border] or by 
other countries … especially when such measures are taken without an authorization from the 
United  Nations", referring bac k to the discussion in paragraphs 20 and 25 -29 of Russia's second 
written submission.  
2.79.   Although Russia's references to the events of 2014 were somewhat cryptic, it is reasonable 
to infer, based on the evidence before the Panel and facts that are common know ledge and which 
cannot reasonably be disputed, that the sanctions applied by certain other countries against Russia 
from 2014 were responses to the emergency in international relations, and that this is also the view 
of Russia, as reflected in paragraphs 2 0-30 of its second written submission and in its response to 
Ukraine's request that the Panel delete paragraph 7.9 of the interim report. The Panel therefore 
declines to make the requested modifications to paragraph 7.14 3 and paragraphs 7.9, 7.119, 7.122 
and 7.14 2. The Panel emphasizes, however, that in stating that the sanctions applied by certain 
other countries against Russia from 2014 were responses to the emergency in international relations, 
the Panel does not make any evaluation of the legality of those sanctions.  
2.80.   In paragraph 7.14 4, Russia requests the Panel to replace the reference to "the international 
community" with the reference to "certain countries".  
2.81.   The Panel has already explained, in response to Russia's request for modifications to 
paragraph 7.122 (see paragraph 2.66 of this Annex), that the fact that UN General Assembly 
Resolution No. 71/205 was adopted by the constitutionally required majority  of UN Member States , 
constitutes the position of the UN General Assembly on the matter , and the fact that the Resolution 
makes express reference to the Geneva Conventions of 12 August 1949 (which by their terms apply 
in cases of declared war or other armed co nflict between High Contracting Parties), means that it is 
accurate to state that by December 2016, the situation referred to in the UN General Assembly 
resolution was recognized by the UN General Assembly as involving armed conflict. However, for the 
same  reasons discussed above (at paragraph 2.66 of this Annex, in relation to requested 
modifications to paragraph 7.122), the Panel has decided to replace the phrase by "the internation al 
community " with the phrase "by the UN General Assembly" in paragraph 7. 144. 
2.6  Section 7.6 of the Report - Ukraine's claims of WTO -inconsistency of the measures at 
issue  
The Panel's conditional conclusions, factual findings and exercises of judicial 
economy  
2.82.   Russia  considers that the Panel's analysis in Section 7.6 contradicts the Panel's previous 
reference, in paragraph 7.15 2, to the Appellate Body's statements in US – Wool Shirts and Blouses , 
concerning the incompatibility with Article 3.7 of the DSU of panels con sidering or deciding issues 
that are not "absolutely necessary to dispose of the particular dispute" between the parties. Russia 
argues that the Panel has fulfilled the requirements of Article 19.1 of the DSU by concluding that 
Russia has not acted inconsi stently with its obligations under the GATT 1994 or with 
Russia's  commitments in its Accession Protocol, and that any further analysis does not serve the 
purpose of prompt settlement. Russia therefore considers that Section 7.6 should be confined to a 
description of the relevant facts, without engaging in any legal analysis or further conclusions.  
2.83.   Ukraine strongly objects to Russia's request, which it interprets as a request for the Panel to 
exercise judicial economy by foregoing altogether a consideration of Ukraine's claims. Ukraine 
argues that giving effect to such a request would mean that, should the Appellate Body reverse the 
Panel's findings regarding Article XXI(b)(iii) of the GATT 1994 with regard to some or all of the 
measures at issue, there would  be "a severe risk of no resolution whatsoever of the dispute". This 
follows, in Ukraine's view, from the fact that Article XXI of the GATT 1994 is an affirmative defence 
                                                
12 European Union's response to Panel question No. 3, paras. 4 -5. 
13 Russia's second written submission, para. 22.  WT/DS512/R/Add.1  
 
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  in justification of measures that are otherwise inconsistent with the GATT 1994. Acco rding to 
Ukraine, without a prior finding of violation, there is no cause to apply an affirmative defence such 
as Article XXI of the GATT 1994. Ukraine therefore requests the Panel to reject Russia's request.  
2.84.   For the reasons already explained in paragraphs  7.152 -7.154 of the Report, the Panel 
disagrees with Russia that the Panel's discussion of Ukraine's claims of inconsistency with Articles V 
and X of the GATT 1994 and commitments in Russia's Working Party Report, contained in 
Section  7.6, is at odds with the Appellate Body's very clear statement of the proper role of panels 
at page 339 of the Appellate Body Report in US – Wool Shirts and Blouses . The Panel therefore 
declines Russia's request.  
2.85.   Ukraine requests the Panel to modify the first sentence of paragraph 7.15 7 by changing the 
reference from "three measures" to "the measures at issue", in order to avoid giving the impression 
that the 2016 Belarus Transit Requirements, the 2016 Transit Bans  on Non -Zero Duty and Resolution 
No. 778 Goods and the 2014 Belarus -Russia Border Bans on Transit of Resolution No. 778 Goods 
are three measures, when in fact these terms collectively describe the measures at issue. Ukraine 
also requests the Panel to refer , in the last sentence of paragraph 7.156, to the "cost of using a 
transit route" in the summary of the factors relevant to the determination of what routes are most 
convenient for international transit, as this factor was listed in paragraph 78 of Ukraine 's opening 
statement at the first meeting of the Panel. Russia does not make any specific comments on these 
requests.  
2.86.   The Panel considers that the requested modifications would improve the clarity of the Report 
and has therefore decided to make the modific ations.  
2.87.   Ukraine requests the Panel to modify the text of paragraph 7.1 60 to reflect that 
Ukraine's  interpretative argument that a finding of inconsistency with any other paragraph of 
Article  V will be sufficient to establish an inconsistency with the firs t sentence of Article V:2 was 
qualified to apply to cases where "a measure is applied to goods transiting via the most convenient 
routes of passage". Russia does not comment specifically in this request.  
2.88.   The Panel has reviewed paragraph 72 of Ukraine's op ening statement at the first meeting of 
the Panel and disagrees with Ukraine that, in that paragraph, Ukraine qualified its interpretive 
argument to apply only to the situation where a measure is applied to goods transiting via the most 
convenient routes o f passage. Rather, the Panel reads the last sentence of paragraph 72 as providing 
an example of where the general interpretive position applies, i.e. "[t]hat is the case where …". 
However, the Panel notes that at paragraph 32 of Ukraine's second written su bmission, Ukraine 
recasts its interpretive argument so as to qualify it as applying only in the situation where a measure 
is applied to goods transiting via the most convenient routes of passage. This being so, the Panel 
has decided to modify paragraph 7.1 60 as requested by Ukraine, in order to reflect the evolution of 
Ukraine's interpretive argument throughout the proceedings.  
2.89.   Ukraine also requests that, in relation to paragraph 7.1 60, the Panel include  a specific 
reference to the second sentence of Artic le V:2 as one of the paragraphs of that provision  to which 
Ukraine's interpretive argument applies, and that the reference to "establish an inconsistency of the 
first sentence of Article V:2" be changed to "establish that such a measure is also inconsisten t with 
the obligation of a WTO Member to guarantee freedom of transit via the most convenient routes 
pursuant to the first sentence of Article V:2." Russia does not comment specifically on these 
requests.  
2.90.   The Panel considers that these proposals accurately  reflect Ukraine's arguments and that the 
requested modifications would improve the accuracy and clarity of the Report. It has therefore 
decided to make these modifications.  
2.91.   Ukraine requests, with respect to Sections 7.6.2.1.3 and 7.6.2.1.4 , that the Panel  make 
factual findings under the first sentence of Article V:2 of the GATT 1994 in relation to " all of the 
measures" with respect to which Ukraine has brought claims. Ukraine argues that it is not contested 
that it has brought claims in relation to the fol lowing measures found to fall within the Panel's terms 
of reference:  WT/DS512/R/Add.1  
 
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  a. the 2014 transit ban in Instruction No. FS -NV-7/22886, as amended by Instruction No. 
FS-EN-7/19132 ;  
b. the 2014 transit restriction , as set out in the same instruments , restricting traffic  in 
transit of veterinary Resolution No. 778 goods, through the territory of the Russian 
Federation, destined for third countries by requiring that such goods enter that territory 
"only through the checkpoints located at the Russian part of the external bo rder of the 
Customs Union " listed in  Instruction No. FS -NV-7/22886;  
c. the 2016 general and product -specific transit bans in Decree No. 1, as amended by 
Decree No. 319 and Decree No. 643 ; and  
d. the 2016 general and product -specific transit restrictions, as set  out in the same 
instruments  as well as in Resolution s Nos. 1, 147 and 276 (as amended) and PJSC 
Russian Railways Order No. 529r, requiring that traffic in transit of all goods by road 
and rail transport from the territory of Ukraine, through the territory  of the 
Russian  Federation, to the territory of Kazakhstan and the Kyrgyz Republic passes via 
the Belarus route (which includes the entry and exit control point requirement) and 
satisfy  the identification and registration card requirements,  as well as such  
requirements as applying to traffic in transit of Resolution No. 7 78 goods.  
2.92.   However, Ukraine considers that the Panel's analysis in Sections 7.6.2.1.3 and 7.6.2.1.4 is 
limited to "measures that prohibit traffic in transit" . Ukraine considers that this is not consistent with 
the Panel's conclusion that "had the measures had been taken in normal times, every aspect of them 
would have been prima facie  inconsistent with either the first or second sentence of Article V:2 of 
the G ATT 1994 " in paragraph 7.19 9. 
2.93.   The Panel disagrees with Ukraine's characterization of its factual findings in Sections 7.6.2.1.3 
and 7.6.2.1.4 as omitting to cover some of the measures at issue, namely, the aspects of the 
measures that Ukraine refers to as the "transit restrictions" (as opposed to "transit bans").  
2.94.   With respect to the measures that comprise the 2016 Belarus Transit Requirements , the Panel 
has clearly stated throughout the Report that these measures comprise both: (i) requirements that 
intern ational cargo transit by road and rail from Ukraine destined for Kazakhstan or the Kyrgyz 
Republic, through Russia, be carried out exclusively from Belarus (which Ukraine refers to as the 
"2016 general transit ban") and (ii) additional conditions relating to identification seals and 
registration card s, which must be obtained and removed at particular permanent and mobile 
checkpoints on the Belarus -Russia border and the Russia -Kazakhstan border respectively (which 
Ukraine refers to as the "2016 general trans it restrictions").  
2.95.   The Panel uses the term 2016 Belarus Transit Requirements  to describe these measures 
collectively and notes that: (i) both the Belarus route requirement and additional conditions are set 
forth in the same legal instrument, namely Decree  No. 1 (and amendments and implementing 
instruments); (ii) the additional conditions relating to identification seals and registration cards, 
which must be obtained and removed at particular permanent and mobile checkpoints on the 
Belarus -Russia border and  the Russia -Kazakhstan border, respectively, apply only to road and rail 
transit which is subject to the Belarus route requirement; and (iii) the clear function of these 
additional conditions is to verify and ensure that covered goods comply with the Belar us route 
requirement. Finally, these additional conditions are also directly addressed in paragraph 7.190  of 
the Report .  
2.96.   The same logic applies to the 2016 Transit Bans on Non -Zero Duty Goods  and Resolution 
No.778 Goods , which Ukraine also refers to as tw o separate measures (the "2016 product -specific 
transit ban" and  the "2016 product -specific transit restrictions "). The Report clearly states that these 
measures comprise : (i) bans on all road and rail transit from Ukraine or goods that are subject to 
non-zero import duties according to the Common Customs Tariff of the EaEU, as well as goods that 
fall within the scope of the import bans imposed by Resolution No. 778, which are destined for 
Kazakhstan or the Kyrgyz Republic (which Ukraine refers to as the "2 016 product -specific transit 
ban") and (ii) a derogation procedure under which goods exceptionally authorized by Russian 
authorities upon request by Kazakhstan or the Kyrgyz Republic would be subject to the 2016 Belarus 
Transit Requirements (which Ukraine refers to as the "2016 product -specific transit restrictions "). WT/DS512/R/Add.1  
 
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  The Panel uses the term 2016 Transit Bans on Non -Zero Duty and Resolution No. 778 Goods to 
describe these measures collectively and notes that both the transit bans and the derogation 
procedur e are set forth in the same legal instrument, namely Decree No. 1, as amended by Decree 
No. 319.  
2.97.   With respect to the measures that comprise the 2014 Belarus -Russia Border Bans on Transit  
of Resolution No. 778 Goods , the Report also clearly states (e.g. at paragraphs 7.1(d), 7.106(c), 
and 7.35 7(c)) that these measures comprise both: (i) prohibitions on transit from Ukraine across 
Russia, through checkpoints in Belarus, of plant and veterinary goods which are subject to the import 
bans implemented by Resoluti on No. 778 (which Ukraine refers to as "the 2014 transit ban") and 
(ii) related requirements that such goods enter Russia through designated Russian checkpoints and 
be subject to clearance by the appropriate Kazakh or Russian veterinary and phytosanitary 
surveillance authorities (which Ukraine refers to as "the 2014 trans it restrictions").  
2.98.   The Panel uses the term 2014 Belarus -Russia Border Bans on Transit  of Resolution No. 778 
Goods  to describe these measures collectively because: (i) both the transit bans and related 
requirements are set forth in the same legal instrumen ts, namely Instruction No. FS -NV-7/22886 
(and amendments) and Instruction No. FS -AS-3/22903; (ii) the related requirements to enter 
through designated checkpoints and to receive clearance from the appropriate Kazakh or Russian 
authorities apply only to goo ds subject to the prohibitions on transit through Belarus ; and (iii) the 
clear function of these related requirements is to verify and ensure that the covered goods are 
complying with the prohibition on transit through Belarus. Finally, these related requi rements are 
also directly addressed in paragraph 7.194 of the Report.  
2.99.   Accordingly, the Panel considers that its conclusions in Sections 7.6.2.1.3 and 7.6.2.1.4 cover 
all of the measures at issue , and therefore declines Ukraine's request. Moreover, the Pane l considers 
that the discussion of the measures in Sections 7.6.2.1.3 and 7.6.2.1.4 is sufficient to explain the 
relevant factual aspects of the measures at issue , should the Appellate Body be required to assess 
Ukraine's respective claims under the first and second sentence s of Article V:2.  
2.100.   Ukraine also requests that, with respect to Section 7.6.2.2.3 , the Panel set out its 
"interpretive analysis of the second sentence of Article V:2 of the GATT 1994" . Russia responds 
generally by reference to its request in paragraph 2.82 of this Annex . 
2.101.   In paragraph 7.153 of the Report, the Panel explains the rationale for, and scope of, its 
conditional conclusions on Ukraine's claims of WTO -inconsistency of the measures at issue. Ukraine 
does not explain why, consistent w ith the explanation in paragraph 7.153, the Panel should set out 
an "interpretive analysis" of the second sentence of Article V:2 of the GATT 1994. The Panel therefore 
declines Ukraine's request.  
2.102.   Ukraine further requests that, as concerns the Panel's exercise of judicial economy in relation 
to Ukraine's claims under Articles V:3, V:4 and V:5 ( Section 7.6.3 ), the Panel address Ukraine's 
claims , or alternatively, at least make factual findings regarding those claims. Ukraine considers that 
the Pa nel's exercise of judicial economy over these claims and the lack of any factual findings in the 
context of such claims means that, in essence, the dispute regarding whether the "transit bans" and, 
in particular, the other "transit requirements" at issue c omply with Article V:3, V:4 and V:5 will 
remain unresolved.  
2.103.   The Panel notes that the conclusions in Sections 7.6.2.1. 4 and 7.6.2. 2.4 are conditional in 
nature and include an explanation of the operation of the measures at issue (which is apparent on 
the face of the instruments implementing the measures). Should the Appellate Body reverse the 
Panel's findings regarding the applicability of Article XXI(b)(iii) of the GATT 1994 to any of the 
measures at issue, the conditional conclusions in Sections 7.6.2.1. 4 and 7.6.2. 2.4, which cover all 
of the measures at issue, provide a sufficient basis for findings that every aspect of the measures at 
issue would, in different circumstances, be prima facie  inconsistent with either the first or second 
sentence of Article V:2 of the GATT 1994, or both. In those circumstances, the Panel considers that 
conditional conclusions on Ukraine's claims under Articles V:3, V:4 and V:5 would not be "absolutely 
necessary to dispose of the particular dispute" between the parties.14  
                                                
14 Appellate Body Report, US – Wool Shirts and Blouses , p. 19, DSR 1996:I, 323, p. 339.  WT/DS512/R/Add.1  
 
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  2.104.   As regards Ukraine's alternative request, the Panel notes that Ukraine has not pointed to 
any specific disputed factual issues which the Panel would need to resolve in order to permit the 
Appellate Body to complete the analysis of Ukraine's claims under Articl es V:3, V:4 and V:5 of the 
GATT 1994. The Panel regards its explanation of the operation of the measures at issue in 
Sections  7.6.2.1.3 and 7.6.2. 2.3, as well as in Section 7.7 , of the Report to be sufficient.  
2.105.   Accordingly, the Panel declines both of Ukraine's requests.  
2.106.   Ukraine also requests that the Panel make the relevant factual findings regarding 
Ukraine's  claims under Articles X:1, X:2 and X:3(a) of the GATT 1994 and under paragraphs 1426, 
1427 and 1428 of the Working Party Report.  Ukraine considers that such factual findings would 
ensure the ability of the Appellate Body to  complete the analysis and would guarantee a positive 
resolution of the dispute .  
2.107.   The Panel notes that Ukraine has not pointed to any sp ecific disputed factual issues which 
the Panel would need to resolve in order to permit the Appellate Body to complete the analysis of 
Ukraine's claims under Articles X:1, X:2 and X:3(a) of the GATT 1994, or under paragraphs 1426, 
1427 or 1428 of Russia's Working Party Report. The Panel recalls that it has extensively explained 
the operation of the measures at issue in Sections 7.6.2.1.3 and 7.6.2. 2.3, as well as in Section 7.7 , 
of the Report. Accordingly, the Panel declines Ukraine's request.  
2.108.   Ukraine also argues that the Panel omitted to make making any reference, in 
Sections  7.6.2.1.3, 7.6.2.2.3, 7.6.2.1.4, and 7.6.2.2.4 to paragraph 1161 of Russia's  Working 
Party Report, despite the fact that Ukraine also brought claims pursuant to that provision .  
2.109.   The Pa nel's analysis of paragraph 1161 of Russia's Working Party Report is contained in 
Section 7.6.4.2.2 and is also reflected in the Panel's findings in Section 8. The Panel therefore 
declines to make any changes on the basis of this comment.  
2.110.   Ukraine argues th at Russia never sought to rely, as part of its affirmative defence under 
Article XXI(b)(iii) of the GATT 1994, on any aspects of paragraphs 1161, 1426, 1427 or 1428 of its 
Working Party Report. Ukraine therefore requests the Panel to remove Section 7.6.4 , and instead 
to draw the necessary inferences from the fact that Russia has not relied on the provisions of its 
Working Party Report as part of its defence under Article XXI(b)(iii) of the GATT 1994. Russia refers 
the Panel to paragraph 76 of its first writ ten submission, arguing that throughout the proceedings, 
Russia has coherently claimed that the measures at issue were adopted consistently with Article XXI 
of the GATT 1994 , and therefore, that such measures are consistent with the provisions of the 
WTO Agreement, including the GATT 1994 and Russia's Accession Protocol.  
2.111.   The Panel understands Ukraine's comment to take issue with the fact that Russia did not 
explicitly advance any arguments regarding the text of the paragraphs 1161, 1426, 1427 and 1428 
of its Working Party Report. Ukraine's appears to consider that, in the absence of such arguments, 
Russia is precluded from relying upon the specific phrases in each of paragraphs 1161, 1426, 1427 
and 1428 as part of its "affirmative defence" under Article XXI( b)(iii). The Panel is mindful of its duty 
under Article 11 of the DSU to make an "objective assessment of the matter before it". While the 
Panel must not make a case for a party where that party has failed to do so15, it remains within the 
competence of a p anel to develop its own legal reasoning to support its own findings on the matter 
under consideration.16 Moreover, a panel 's interpretation of the text of the relevant WTO Agreement 
cannot be limited by the particular interpretations advanced by the parties , where such an 
interpretation is necessary to resolve the dispute.17 
2.112.   The Panel recalls that , in its first written submissions, Russia explicitly relied on Article XXI 
in relation to Ukraine's claims under both the GATT 1994 and paragraphs 1161, 1426, 1427 and 
1428 of Russia's Working Party Report, as incorporated into its Accession Protocol by reference. For 
instance, in paragraph 37 of its first written submission, Russia noted that the measures contested 
                                                
15 See e.g. Appellate Body Report, Japan – Agricultural Pr oducts II , paras. 127-130 
16 See e.g. Appellate Body Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 5.116; and 
US – Tuna II (Mexico) (Article 21.5 – Mexico) , paras. 7.176 -7.177.  
17 See e.g. Appellate Body Reports, EC – Tariff Preferences, para. 105; and Canada – Renewable Energy 
/ Canada – Feed-in Tariff Program , para. 5.215.  
 WT/DS512/R/Add.1  
 
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  by Ukraine were taken pursuant to Article XXI and w ere therefore "in full consistency with the 
WTO Agreement, including the GATT and the Accession Protocol".18 Accordingly, Ukraine was 
afforded full opportunity to comment on this argument by Russia at any stage following receipt of 
Russia's first written submission. However, Ukraine at no point in the proceedings raised any 
arguments contesting the applicability  of Article XXI(b)(iii) to any paragraphs of Russia's Working 
Party Report.  
2.113.   Given Russia's argument that Article XXI was applicable to commitments in its Working Party 
Report, the Panel proceeded to conduct a textual and purposive analysis of the relevant  paragraphs 
in order to determine whether Russia could rely on Article XXI in relation these commitments. This 
analysis was conducted in accordance with customary principles of international law, as well as based 
on previous guidance by the Appellate Body on the relationship between Article XX of the GATT 1994 
and obligations in a Member's Accession Protocol. The Panel concluded that a number of elements, 
including but not limited to the specific text of each of the provisions in Russia's Working Party 
Report, supported the conclusion that Russia could rely upon Article XXI(b)(iii) in relation to 
paragraphs 1161, 1426, 1427 and 1428 of its Working Party Report.  
2.114.   The Panel notes, moreover, that Russia's failure to advance any specific interpretive or 
textual arguments in relation to Ukraine's claims under Articles V or X of the GATT 1994, as well as 
paragraphs 1161, 1426, 1427 and 1428 of Russia's Working Party Report, was consistent with its 
overarching position that the Panel lacked jurisdiction to examine a ny of Ukraine's claims due to 
Russia's invocation of Article XXI. In the light of these circumstances, as well as the importance of 
Article XXI as a safeguard for the right of Members to take actions in pursuance of their essential 
security interests, the Panel considers that it was not precluded from analysing the applicability of 
Article XXI to provisions in Russia's Working Party Report, even in the absence of specific interpretive 
arguments by Russia or Ukraine on the relevant text of paragraphs 1161, 1 426, 1427 and 1428 of 
Russia's Working Party Report. Accordingly, the Panel denies Ukraine's request.  
2.7  Section 7.7 of the Report – Panel's terms of reference and the existence of the 
measures  
Whether the 2014 Belarus -Russia Border Bans on Transit of Resolut ion No. 778 
Goods are within the Panel's terms of reference  
2.115.   Ukraine  requests that, with respect to paragraph  7.330, the Panel reflect Ukraine's 
argument in its second written submissions that if neither of the instructions ever applied with 
respect to Ukra ine, arguably, there would have been no need to adopt Instruction No. FS -EN-
7/19132. Russia does not respond specifically to this request.   
2.116.   The Panel considers that the requested modification would improve the accuracy and clarity 
of the Report and therefo re has decided to make the modification.  
 
__________  
                                                
18 Russia's first written submission, para. 37. See also ibid. para s. 9 and 76 ; and  Russia's closing 
statement at the first meeting of the Panel, para. 5