WT/DS567/R/Add.1  
 
16 June  2020 
(20-4197) Page: 1/93 
  Original: English  
 
  
SAUDI ARABIA – MEASURES CONCERNING THE PROTECTION OF 
INTELLECTUAL PROPERTY RIGHTS  
REPORT OF THE PANEL  
Addendum  
 
This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS567/R . 
 
 
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LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Qatar  12 
Annex  B-2 Integrated executive summary of the arguments of the Kingdom of Saudi Arabia  29 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Australia  48 
Annex  C-2 Integrated executive summary of the arguments of the Kingdom of Bahrain  51 
Annex  C-3 Integrated executive summary of the arguments of Brazil  53 
Annex C -4 Integrated executive summary of the arguments of Canada  57 
Annex C -5 Integrated executive summary of the arguments of China  60 
Annex C -6 Integrated executive summary of the arguments of the European  Union  62 
Annex C -7 Integrated executive summary of the arguments of Japan  67 
Annex C -8 Integrated executive summary of the arguments of Norway  71 
Annex C -9 Integrated executive summary of the arguments of the Russia n Federation  74 
Annex C -10 Integrated executive summary of the arguments of Singapore  76 
Annex C -11 Integrated executive summary of the arguments of Ukraine  80 
Annex C -12 Integrated executive summary of the arguments of the United Arab Emirates  83 
Annex C -13 Integrated executive summary of the arguments of the United  States  89 
 
 
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  ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
 
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  ANNEX  A-1 
WORKING PROCEDURES OF THE PANEL  
 
Adopted on 27 March 2019  
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify t hese procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) Nothing in the DSU or in these Working Procedures shall preclude a party or third party 
from disclosing statements of its own positions to the public.  
(3) If a party submits a confiden tial version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public.  
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the parties.  
Submissions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
submit a written sub mission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, before the second substantive meeting of the 
Panel, a written rebuttal, in accordan ce with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(4) The Panel  may invite the parties or third parties to make  additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  
Preliminary rulings  
4. (1) If Saudi Arabia considers that the Panel should make a ruling before the issuance of the 
Report that certain measures or claims in the panel request or the complainant's first written 
submission are not properly before the Panel, the following procedure ap plies. Exceptions to 
this procedure shall be granted upon a showing of good cause.  
a. Saudi Arabia shall submit any such request for a preliminary ruling at the earliest 
possible opportunity and in any event no later than in its first written submission to   WT/DS567/R/Add.1  
 
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  the Panel. Qatar shall submit its response to the request before the first substantiv e 
meeting of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary 
ruling request before, during or after the first substantive meeting, or the Panel may 
defer a ruling on the issues raised by a preliminary ruling request until it issues its 
Report to the parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its 
Report, the Panel may provide reasons for the rul ing at the time that the ruling is 
made, or subsequently in its Report.   
d. Any request for such a preliminary ruling by the respondent before the first meeting, 
and any subsequent submissions of the parties in relation thereto before the first 
meeting, shal l be served on all third parties. The Panel may provide all third parties 
with an opportunity to provide comments on any such request, either in their 
submissions as provided for in the timetable or separately. Any preliminary ruling 
issued by the Panel be fore the first substantive meeting on whether certain measures 
or claims are properly before the Panel shall be communicated to all third parties.  
(2) This procedure is without prejudice to the parties' right to request other types of 
preliminary or proce dural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, except evidence necess ary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a showing of  good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working language of the submission. The Panel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause.  
(2) Any objection  as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shall be accomp anied 
by a detailed explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially numbe r its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. Exhibits submitted by Qatar should be numbered QAT-1, QAT-2, etc. Exhibits 
submitted by Saudi Arabia should be numbered SAU-1, SAU-2, etc. If the last exhibit in 
connection with the first submission was numbered SAU-5, the first exhibit in connection with 
the next submission thus would be numbered SAU-6.  
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again . WT/DS567/R/Add.1  
 
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  (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit.  
Editorial Guide  
8. In orde r 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 (electronic copy 
provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeti ng.   
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
 
10. The Panel shall meet in closed session.  
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibility fo r all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third  parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request for interpretation by any party should b e made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.  
15. The Panel will provide for two substantive meetings with the parties, the purpose of which will 
be to all ow each party to directly address the Panel. The first substantive meeting of the Panel with 
the parties shall be conducted as follows:  
a. The Panel shall invite Qatar to make an opening statement to present its case first. 
Subsequently, the Panel shall in vite Saudi Arabia to present its point of view. Before each 
party takes the floor, it shall provide the Secretariat with a provisional written version of its 
statement, which the Secretariat shall then make available to other participants. If 
interpretatio n is needed, each party shall provide additional copies for the interpreters.  
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
party is invited to limit the duration of its opening statement to not more than 75 minut es. If 
either party considers that it requires more time for its opening statement, it should inform 
the Panel and the other party at least 10 days prior to the meeting, together with an estimate 
of the expected duration of its statement. The Panel will ac cord equal time to the other party.   
c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments to the Panel regarding the other party's statement, or ask the WT/DS567/R/Add.1  
 
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  other party questions through the Panel . Neither party is under any obligation to respond to 
questions posed by the other party.  
d. The Panel may subsequently pose questions to the parties.  
e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a bri ef closing statement, with Qatar presenting its statement first. Before each party 
takes the floor, it shall provide the Secretariat with a provisional written version of its closing 
statement, if available, which the Secretariat shall then make available to other participants.  
f. Following the meeting:  
i. Each party shall submit a final written version of its opening statement no later 
than 5.00  p.m. (Geneva time) on the first working day following the meeting. At 
the same time, each party should also submit a final written version of any 
prepared closing s tatement that it delivered at the meeting.  
ii. Each party shall send in writing, within the timeframe established by the Panel 
before the end of the meeting, any questions to the other party to which it wishes 
to receive a response in writing. Neither party i s under any obligation to respond 
to questions posed by the other party.  
iii. The Panel shall send in writing, within the timeframe established by the Panel 
before the end of the meeting, any questions to the parties to which it wishes to 
receive a response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and submit 
any response that it wishes to make to any questions posed by the other party, 
within the time -frame established by the Panel before the end of the meeting.  
16. The s econd substantive meeting of the Panel with the parties shall be conducted in the same 
manner as the first substantive meeting with the Panel, except that Saudi Arabia shall be given the 
opportunity to present its oral statement first. If Saudi Arabia choo ses not to avail itself of that right, 
it shall so indicate no later than 5.00 p.m. (Geneva time) three working days before the meeting. In 
that case, Qatar shall present its opening statement first, followed by Saudi Arabia. The party that 
presented its o pening statement first shall present its closing statement first.  
Third party session  
 
17. The third parties shall be present at the meetings only when invited by the Panel to appear 
before it.  
18. (1) Each third party has the right to determine the comp osition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedure s, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.  
19. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow sufficient time to ensure availability of interpreters.  
20. (1) Each third party may present its views orally during a session of the first substantive 
meeting with the parties set aside for tha t purpose.  
(2) Each third party shall indicate to the Panel whether it intends to make an oral statement 
during the third -party session, along with the list of members of its delegation, in advance of 
this session and no later than 5.00  p.m. (Geneva time)  three working days before the 
third-party session of the meeting with the Panel.  WT/DS567/R/Add.1  
 
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  21. The third -party session shall be conducted as follows:  
a. All parties and third parties may be present during the entirety of this session.  
b. The Panel shall first hea r the oral statements of the third parties. Each third party making 
an oral statement at the third -party session shall provide the Panel and other participants 
with a provisional written version of its statement before it takes the floor. If interpretation  
of a third party's oral statement is needed, that third party shall provide additional copies 
for the interpreters.  
c. Each third party should limit the duration of its statement to 15 minutes, and avoid 
repetition of the arguments already in its submiss ion. If a third party considers that it 
requires more time for its opening statement, it should inform the Panel and the parties 
at least 10 days before the meeting, together with an estimate of the expected duration 
of its statement. The Panel will accord  equal time to all third parties for their statements.   
d. After the third parties have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for clarification on any matter raised in 
that third party's sub mission or statement.  
e. The Panel may subsequently pose questions to any third party.  
f. Following the third -party session:  
i. Each third party shall submit the final written version of its oral statement, no later 
than 5.00  p.m. (Geneva time) on the first working day following the meeting.  
ii. Each party may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to a third party or parties to which it 
wishes to receive a response in writing.  
iii. The Panel may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any question s to a third party or parties to which it 
wishes to receive a response in writing.  
iv. Each third party choosing to do so shall respond in writing to written questions from 
the Panel or a party, within a timeframe established by the Panel before the end o f the 
meeting.  
Descriptive part and executive summaries  
 
22. The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall 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.  
23. Each party shall submit a single integrated e xecutive summary. It shall summarize the facts 
and arguments as presented to the Panel in the party's first and second written submissions, oral 
statements, and if possible, its responses to questions. The timing of the submission of the 
integrated executi ve summary shall be indicated in the timetable adopted by the Panel.  
24. The integrated executive summary shall be limited to no more than 30 pages.  
25. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
26. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in  accordance with the timetable adopted by the Panel. This 
integrated executive summary may also include a summary of responses to questions, if relevant. WT/DS567/R/Add.1  
 
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  The executive summary to be provided by each third party shall not exceed six  pages. If a third -
party submission and/or oral statement does not exceed six pages in total, this may serve as the 
executive summary of that third party's arguments.  
Interim review  
 
27. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is subm itted.  
28. If no further meeting with the Panel is requested, each party may submit written comments 
on the other party's written request for review, in accordance with the timetable adopted by the 
Panel. Such comments shall be limited to commenting on th e other party's written request for 
review.  
Interim and Final Report  
29. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
Service of documents  
 
30. The followi ng procedures regarding service of documents apply to all documents submitted by 
parties and third parties during the proceeding:  
a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry (office No. 2047 ).  
b. Each party and third party shall submit 1 paper copy of its submissions and 1 paper copy 
of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates established by 
the Panel. The DS  Registrar shall stamp the documents with the date and time of 
submission. The paper version submitted to the DS Registry shall constitute the official 
version for the purposes of submission deadlines and the record of the dispute. If any 
documents are in a format that is impractical to submit as a paper copy,  then the party 
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or USB 
key only.  
c. Each party and third party shall also send an email to the DS Registry, at the same time 
that it submits the paper versions, attaching an electro nic copy of all documents that it 
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails 
to the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO 
Secretariat staff whose email addresses have been provi ded to the parties during the 
proceeding. If it is not possible to attach all the Exhibits to one email, the submitting party 
or third party shall provide the DS Registry with four copies of the Exhibits on USB keys, 
CD-ROMs or DVDs.  
d. In addition, each p arty and third party is invited to submit all documents through the 
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the 
submission of the paper versions. If the parties or third parties have any questions or 
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide 
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.  
e. Each party shall send all communications and documents directly to the Secretariat, which 
the Secretariat will then proceed to  transmit promptly to the other party. Unless a party 
and the Secretariat agree on an alternative electronic medium (e.g. the DDSR ) for 
transmitting communications and documents to the other party, the Secretariat will 
transmit all communications and documents from a party to the other party by forwarding 
the email which the submitting party will have sent to the DS Registry and othe r 
Secretariat staff in accordance with paragraph 30(c).  Each party shall, in addition, serve 
any submissions in advance of the first substantive meeting with the Panel directly on the WT/DS567/R/Add.1  
 
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  third parties. Each third party shall serve any document submitted to th e Panel directly on 
the parties and on all other third parties. Documents from or to third parties shall be 
served by email or on a CD -ROM, DVD or USB key only, unless the recipient party or third 
party has previously requested a paper copy. Each party and  third party shall indicate, in 
writing, whether copies have been served on the parties and third parties, as appropriate, 
at the time it provides a document to the Panel.  
f. Each party and third party shall submit its documents by 5.00  p.m. (Geneva time) on the 
due dates established by the Panel.  
g.  As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with a pa per copy of the Interim Report and the Final Report.  
Correction of clerical errors in submissions  
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical  mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  
 
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  ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Qatar  12 
Annex  B-2 Integrated executive summary of the arguments of the Kingdom of Saudi Arabia  29 
 
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  ANNEX  B-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF QATAR  
I. INTRODUCTION  
1. This dispute raises fundamental issues under the WTO 's Agreement on Trade -Related 
Aspects of Intellectual Property Rights ( "TRIPS Agreement ").  Specifically, in this dispute, the Panel 
has the opportunity to opine on t he following question: Does the TRIPS Agreement provide any 
disciplines with respect to a WTO Member that not only permits, but actively encourages and 
promotes,  the widespread piracy of copyrighted works?  Unlike the other WTO Agreements, the 
TRIPS Agreem ent is focused on the protection of private rights  – i.e., intellectual property ( "IP") 
rights held by nationals of WTO Members. That is why, unlike any other WTO Agreement, the 
TRIPS  Agreement dedicates an entire Part to enforcement (Part III), going so f ar as to include a 
requirement that Members shall provide for application of criminal procedures and penalties in cases 
of commercial scale copyright piracy.  
2. For Qatar, the answer to the question posed above is clearly "yes". In fact, the 
TRIPS  Agreement, in general, including Part III thereof, in particular, was negotiated precisely for 
this purpose —to ensure that WTO Members protect intellectual property rights created and held by 
nationals of other WTO Members. With strong intellectual propert y protection, creators can be 
rewarded for the development of new works, inventors can be rewarded for the risk and investment 
that comes with developing new technologies, and trademark and geographical indication rights 
holders can distinguish their produ cts and services from those of their competitors. Without such 
rewards and protection, such works, technologies, and varied products and services may never be 
present in the marketplace.   
3. The Kingdom of Saudi Arabia ( "KSA" or "Saudi Arabia ") has, for o ver two years, actively and 
aggressively violated its obligations under the TRIPS Agreement, particularly with respect to 
intellectual property rights held by Qatari nationals (and their licensors) that have been infringed by 
the sophisticated, widespread operations of the Saudi -based broadcast pirate known as "beoutQ ".  
More generally, such violations have exposed deep -seated and fundamental flaws in Saudi Arabia 's 
commitment to providing enforcement procedures consistent with the obligations in Part III o f the 
TRIPS Agreement.   
4. Beyond enforcement procedures, Saudi Arabia has gone so far as to explicitly state, in an 
official circular, that beIN Media Group ( "beIN"), a Qatari national, along with its "content licensors, 
hardware suppliers ", and others a ffiliated with beIN, would incur the "loss of the legal right to protect 
any related intellectual property rights ".1   
5. There can be no justification for this type of open and blatant disregard for the disciplines of 
the TRIPS Agreement. This is particu larly true when a WTO Member has permitted, and indeed 
supported, a situation within its borders that constitutes the most widespread, sophisticated pattern 
of broadcast piracy that the world has ever seen. The witness statement  submitted as Exhibit QAT -
222 demonstrates that officials at  the highest levels of the Saudi government were involved in the 
beoutQ piracy from the outset, including the very authorities responsible for enforcing copyrights.   
6. In response to the prima facie  case Qatar has establis hed, Saudi Arabia has attempted to 
keep Qatar 's claims out of the WTO 's dispute settlement system altogether, relying on the national 
security exception of the TRIPS Agreement ( i.e., Article 73).  However, throughout the proceedings, 
Saudi Arabia has not p roperly invoked —let alone substantiated —the affirmative defense in Article 
73(b) of the TRIPS Agreement, with respect to any of the measures at issue in the present dispute.   
7. In particular, Saudi Arabia repeatedly clarified that it does not consider th e measures at 
issue in the present dispute necessary for the protection of its essential security interests.  Further, 
Saudi Arabia has failed to demonstrate that its measures were taken "in time of war or other 
emergency in international relations ".   
 
1 Saudi Ministry of Culture and Information and General Commission for Audiovisual Media, Circular, 19 
June 2017, (Exhibit QAT -1), p. 2.  WT/DS567/R/Add.1  
 
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  8. Despite Saudi Arabia 's repeated assertions that it would not engage with the substance of 
the dispute, Saudi Arabia engaged actively throughout the proceedings and, in particular, addressed 
the measures and claims at issue in its responses to the Panel 's questions after the first substantive 
meeting.  Nevertheless, Saudi Arabia has left unrefuted the extensive evidence submitted by Qatar.   
9. With respect to the limited facts that Saudi Arabia has attempted to rebut, Saudi Arabia sets 
forth only unsupporte d or irrelevant assertions.  And, in the rare instance when Saudi Arabia has 
actually submitted evidence that it asserts refutes Qatar 's prima facie  case, such evidence generally 
bolsters Qatar 's position.   
II. FACTUAL ASPECTS  
A. 19 June 2017 Circular  
10. Through its 19 June 2017 Circular (the "Circular "), the Saudi Ministry of Culture and 
Information ( "Ministry ") and the Saudi General Commission of Audiovisual Media ( "GCAM ") 
prohibited the distribution of beIN media content and made it punish able by, among other things, 
"the loss of the legal right to protect any related intellectual property rights ".2  As beIN may be 
considered a distributor and/or content licensor of the beIN channels covered by the Circular, this 
measure served to effectiv ely strip beIN (and its licensors) of the legal right to protect any 
intellectual property rights related to, and in respect of the content broadcast on, the beIN channels.  
B. Piracy of content created by, and licensed to, Qatar -based beIN Media 
Group  
11. Qatar has provided ample evidence of the widespread piracy of beIN media content in Saudi 
Arabia, including through extensive video and photographic evidence.  Qatar has shown that, 
through subscriptions and beoutQ -branded set -top boxes ( "STBs"), beoutQ ha s illegally transmitted 
beIN's coverage of tens of thousands of high -profile sporting events.  This includes original copyright 
content owned by beIN, as well as original copyright content owned by third party licensors, including 
sports leagues from aroun d the world.   
12. In addition, Internet Protocol Television ( "IPTV") applications on beoutQ STBs and the 
beoutQ custom app store offer access to thousands of pirated live TV channels, movies, and TV show 
episodes.  One IPTV application, the Show Box appli cation, which has come to be known as the 
"Netflix of piracy ", has provided free access to more than 4,700 movies and 35,000 TV show episodes 
via streaming or direct download to the box.  
13.  beoutQ 's websites have also facilitated illegal web streaming of  pirated content, including 
sporting events licensed to beIN by international content creators.  
14.  Not only has beoutQ continued to illicitly broadcast pirated content through its own satellite 
broadcasts, but beoutQ content has also been intercepted an d redistributed by the so -called "pirates 
of the pirates ", and thereby has spread across the globe.  Moreover, beoutQ has been intercepted 
and rebroadcasted by a prominent Saudi -owned and Saudi -based channel, Saudi 24, including the 
pirated broadcast of th e Asian Football Confederation ( "AFC") Champions League match on 12 March 
2019.  Saudi 24 added its own graphics to the screen, however, including its own logo and even an 
image of Saudi Arabia 's leaders apparently watching the game or otherwise overseeing  the 
broadcast.  
15. None of these facts about the beoutQ piracy has been contested by Saudi Arabia.  
1. Saudi government support for, facilitation of, and participation in, 
the beoutQ piracy  
16. Qatar provided extensive evidence of the Saudi government 's support for, facilitation of, and 
participation in the beoutQ piracy.  For example, Qatar provided evidence that the Ministry of 
Municipal and Rural Affairs of Saudi Arabia published flyers ahead of the 2018 Fédération 
Internationale de Football Association ("FIFA") World Cup, advertising 294 display screens allocated 
across the 13 regions of Saudi Arabia – all broadcasting beoutQ.  Qatar also provided evidence of 
numerous tweets posted by official Twitter accounts of Saudi municipal governments, promoting 
public screenings of beoutQ 's broadcasts of the 2018 FIFA World Cup.  In addition, Qatar provided 
 
2 Saudi Ministry of Culture and Information and General Commission for Audiovisual Media, Circular, 
19 June 2017, ( Exhibi t QAT -1), p. 2.  WT/DS567/R/Add.1  
 
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  evidence that international journalists reported on Saudi government -sponsored events that 
featured beoutQ -pirated World Cup content.  
17. Qatar further provided  evidence that in the days leading up to the launch of beoutQ, a key 
advisor to the Saudi court tweeted that "alternative solutions are coming soon … free or for a low 
price", followed by the hashtag #Blocking_Qatari_beIN_Sport.  
18. Moreover, as revealed b y the witness statement submitted as Exhibit QAT -222, the beoutQ 
project was established and operated under the overall control and direction of the Saudi 
government.  The witness, who served on beoutQ 's staff from its inception, testifies to the 
involveme nt of the highest levels of the Saudi government —the Saudi Royal Diwan —and the very 
authorities responsible for enforcing copyrights in Saudi Arabia —the Ministry of Culture and 
Information and GCAM.   
2. Availability of beoutQ boxes  
19. Since the autumn of  2017, beoutQ STBs and subscriptions have been widely and openly 
available for purchase in Saudi retail outlets; and beoutQ pirate channels have been openly shown 
at cafes and restaurants across Saudi Arabia.   
20. Qatar has provided ample photographic evi dence demonstrating the ready availability of 
beoutQ in Saudi Arabia.  For example, Qatar has provided photographic evidence that in November 
2017, October 2018, April 2019, and May 2019, beoutQ STBs (after having passed through Saudi 
customs) were visibly  displayed, promoted, and sold in electronics stores in Jeddah, Riyadh, and 
Dammam.  Qatar has also provided photographic evidence that in July 2018, April 2019, and June 
2019, numerous restaurants and cafes in Jeddah, Riyadh, and Dammam openly showed beou tQ 
channels on televisions at their establishments.  Indeed, the United States government has 
confirmed in its 2019 Special 301 Report that, at least as of 25 April 2019, beoutQ STBs "continue 
to be widely available and are generally unregulated in Saudi A rabia".3 
21.   In order to provide a glimpse of the extent and blatant nature of the beoutQ piracy in Saudi 
Arabia, Qatar submitted images of the store front and a business card for "beout Q 2 ", a store in 
the Al Fakhriyah District of Al Dammam, Saudi Arabia that was found to distribute beoutQ as recently 
as May 2019.  In a WTO Member that has no respect for the IP rights of beIN and its licensors, and 
that promotes and allows copyright piracy to run rampant without any discipline, it should come as 
no surprise that even the pirates themselves become victims of the most blatant forms of IP 
infringement.  
3. Use of Arabsat satellites  
22. Qatar has demonstrated that in order to broadcast beIN 's proprietary media content via 
satellite transmission, beo utQ uses frequencies from the satellites of Arabsat, an intergovernmental 
satellite operator headquartered in Riyadh and of which Saudi Arabia is the largest shareholder.  The 
Saudi government 's control over Arabsat and its day -to-day operations is evidenc ed by the fact that 
the CEO of Arabsat, Khalid Bin Ahmed Balkheyour, is a Saudi citizen and a former Saudi government 
official.  Indeed, as a Saudi citizen resident in Riyadh and working within Saudi territory, he is subject 
to Saudi Arabia 's anti -sympathy  measures (as detailed below, in Section II.C).  Notably, Saudi Arabia 
has implicitly acknowledged during these proceedings that Arabsat can effectively be viewed as an 
instrument of the Saudi government.  
23. Qatar has provided evidence that beoutQ itself has publicized its relationship with Arabsat, 
tweeting in December 2017 that beoutQ channels are broadcast on Arabsat satellite Badr °26.  
Further, detailed independent technical reports unequivocally demonstrate that beoutQ has been 
broadcast on Ar absat satellite frequencies.  Qatar has also provided evidence that beIN and right 
holders, including the Union of European Football Associations ( "UEFA"), LaLiga, and the English 
Premier League, have repeatedly notified Arabsat of the unauthorised beoutQ transmissions on 
Arabsat satellites and requested that Arabsat take down the beoutQ channels broadcasting on its 
frequencies, to no avail.  Further, as the United States government itself has found, "Saudi Arabia 
has not taken sufficient steps to address t he purported role of Arabsat in facilitating BeoutQ 's piracy 
activities ".4 
 
3 United States 2019 Special 301 Report, Office of the United States Trade Representative (April 2019) 
(Excerpts), (Exhibit QAT -184) . 
4 United States 2019 Special 301 Report, Office of the United States Trade Representative (April 2019) 
(Excerpts), (Exhibit QAT -184) , p. 57.  WT/DS567/R/Add.1  
 
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  24. In particular, three expert reports detail that, during the course of these WTO proceedings, 
beoutQ has continued to be broadcast on Arabsat satellites.  A June 2019 technical report confirms 
that, as of mid -April 2019, the 10 beoutQ channels continued to originate from Arabsat satellites.   In 
the Cartesian Report from 10 September 2019, technical experts conclude that "beoutQ content was 
indisputably being transmitted via Arabs at's Badr -7 satellite, on satellite frequency 11270 ".5  In the 
MarkMonitor Report, which was commissioned by seven football right holders —the Asian Football 
Confederation, the Bundesliga, FIFA, the English Premier League, Serie A, LaLiga, and UEFA —yet 
another independent expert investigation confirms that beoutQ channels are transmitted by Arabsat 
satellites.   
25. Moreover, a June 2019 decision of the Tribunal de Grande Instance de Paris  confirmed that 
testing by beIN 's technical expert Nagra demonstrated  that beoutQ channels were available in 
French territory in January 2019, and that this was sufficient to ground the jurisdiction of the court 
against Arabsat.  The court also found that, in June 2018, testing demonstrated that the beoutQ 
channels were ava ilable on the 11919 and 12207 MHz frequencies via the Arabsat Badr -4 satellite.  
26. Not only does Arabsat provide the satellite frequencies necessary for beoutQ 's broadcasts, 
but, as the witness statement demonstrates, Arabsat has also been deeply involved  in the beoutQ 
project itself, providing critical support as well as ongoing technical assistance.  
4. Facilitation of beoutQ piracy by Saudi enterprises and individuals  
27. Qatar provided ample evidence demonstrating the connection between beoutQ and a 
sophisticated Saudi -based company, Saudi Selevision Company LLC ( "Selevision "), as well as its 
parent company, Khusheim Holdings Company.  Qatar explained that (i) the CEO (and largest 
shareholder) of Selevision purchased content delivery network services fo r the beoutQ.se website 
using his personal credit card; (ii) Selevision 's TV and video on -demand service is broadcast on the 
same Arabsat satellite frequency as the one beoutQ has used; and (iii) one of the individuals involved 
in hacking the legitimate be IN subscriptions for beoutQ 's rebroadcast did so using a Selevision 
corporate email address.  
28. The witness statement in Exhibit QAT -222 confirms and further clarifies the role of 
Selevision, Mr. Khusheim, and other Saudi individuals in the beoutQ piracy.   In particular, beoutQ 
was jointly established and operated by Selevision and Saudi Media City; Selevision engineers 
installed and tested technical equipment for use in the beoutQ piracy operation; Selevision 
employees, including managers, administrative staff, and technicians, worked to support beoutQ 's 
operations at the facility from which beoutQ was operating; Selevision operated a beoutQ call centre 
from its Dammam office; and Selevision CEO Mr. Khusheim oversaw the entire project and was 
acting as beo utQ's General Manager, operating from within Saudi Media City .   
C. Obstacles to initiating copyright infringement action caused by Saudi 
Arabia's anti -sympathy measures and travel ban  
29. The unchecked, rampant piracy at issue in this dispute has occurred due to certain obstacles 
that Saudi Arabia has created which prevent Qatari nationals from initiating copyright infringement 
actions in Saudi territory.  Among such obstacles are the Saudi anti -sympathy measures that 
sanction expressions of sympat hy (a term that is undefined) for Qatar or Qatari nationals with five 
years ' imprisonment, or fines of up to three million Saudi riyals.  Saudi Arabia has also closed "all 
land, sea and air ports " to "prevent{} Qatari citizens ' entry to or transit through the Kingdom of 
Saudi Arabia ".6  The anti -sympathy measures, together with the travel ban (as it applies to IP 
enforcement) and other measures, have made it impossible for Qatari nationals to initiate and 
participate in civil copyright infringement proceed ings against beoutQ piracy.  
30. Indeed, due at least in part to Saudi Arabia 's anti -sympathy measures, beIN has been unable 
to obtain legal representation from Saudi attorneys in order to enforce its IP rights. All Saudi law 
firms that have been approached  to take action against beoutQ piracy have declined to act for beIN.  
The detailed evidence submitted by Qatar regarding the interactions between Saudi law firms and 
the Saudi government confirm the tremendous power of the Saudi government over determining  
whether a Saudi law firm will or will not work for a Qatari national.  Such evidence demonstrates 
 
5 Cartesian: Technical Investigation of beoutQ Broadcasts, 10 September 2019, (Exhibit QAT -239) , 
para. 61.  
6 Announcement on the Saudi Embassy to the United States website,  "Kingdom of Saudi Arabia Cuts 
Off Diplomatic and Consular Relations with the State of Qatar ", 5 June 2017, (Exhibit QAT -3). WT/DS567/R/Add.1  
 
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  that failure to follow the will of the Saudi government in such decisions can result in shutting down 
an entire law firm 's operations, or worse.   
31. Thus, beIN could conclude only that "it is the position of the Saudi government that beIN … 
cannot bring civil legal actions relating to beoutQ broadcast piracy before the KSA courts ".7  This 
understanding has been communicated to the Saudi government in multip le letters, with no 
responses whatsoever. beIN specifically noted in one of its letters that the lack of response from the 
Saudi government is to be understood as confirming beIN 's understanding that "the Saudi 
Government has instructed lawyers in the KSA to refrain from representing beIN ".8  beIN has 
received no response. Qatar thus understood that Saudi Arabia has confirmed the inability of Qatari 
nationals, and beIN in particular, to secure legal representation and to access Saudi courts or 
administrati ve tribunals to bring a copyright infringement action.  
32. beIN is not the only right holder that has been unable to engage Saudi counsel, or access 
Saudi courts and administrative tribunals, in connection with the beoutQ piracy. Seven major football 
right holders, namely FIFA, UEFA, AFC, the English Premier League, Bundesliga, LaLiga, and Lega 
Serie A, have issued a joint statement confirming that this has been the case for well over a year.  
In that statement, publicly issued on 31 July 2019, they explain ed as follows:  
{o}ver the past 15 months, we spoke to nine law firms in KSA, each 
of which either simply refused to act on our behalf or initially 
accepted the instruction, only later to recuse themselves.  As 
copyright holders we have reached the conclus ion, regrettably, that 
it is now not possible to retain legal counsel in KSA which is willing 
or able to act on our behalf in filing a copyright complaint against 
beoutQ.9  
Joined by an additional sports league, the rights holders have confirmed this to b e the case in the 
statement prepared specifically for these WTO proceedings.   
33. The effect of the anti -sympathy measures on Saudi lawyers is further confirmed by a report 
from the UN Office of the High Commissioner for Human Rights. The report is critic al of multiple 
aspects of Saudi Arabia 's anti -sympathy measures.  In particular, the report highlights that "lawyers 
in these countries {including Saudi Arabia} are unlikely to defend Qataris as this would likely be 
interpreted as an expression of sympathy  towards Qatar ".10 Given this context, it comes as no 
surprise that Saudi lawyers do not want to risk their freedom to represent beIN and other right 
holders in copyright infringement proceedings against beoutQ piracy.  
34. In addition to being unable to obtain legal repres entation due to the anti -sympathy 
measures, Qatari nationals are also unable to travel to Saudi Arabia for purposes of enforcing their 
intellectual property rights, as a result of the travel ban. As Qatar 's expert, Professor Gervais, 
explained in his Secon d Supplemental Report, based on his understanding from a professor of law 
in the region, "it would be highly unusual for someone to be allowed to file a case and provide 
evidence without appearing in court ".11  Further, there appear to be no laws or regula tions in Saudi 
Arabia allowing video evidence. Thus, the travel ban (as it applies to IP enforcement) further 
forecloses Qatari nationals ' ability to access Saudi courts and administrative tribunals to bring a 
copyright infringement action.  
35. To be clear , Qatar challenges the travel ban in this dispute only to the extent it limits —
together with the other measures at issue —the ability of Qatari nationals to enforce their IP rights 
before Saudi courts or administrative tribunals. Importantly, even if the tr avel ban were removed, 
Qatar understands that our nationals would likewise continue to lack access to Saudi courts and 
administrative tribunals, as a result of the anti -sympathy measures, the Circular, and the political 
gatekeeping function obstructing the  Copyright Committee process. Indeed, this has been the 
 
7 Letter from beIN to Saudi Ministry of Culture and Information, 6 March 2018, (Exhibit QAT -120) . 
8 Letter from beIN to Saudi Ministry of Culture and Information, 6 March 2018, (Exhibit QAT -120) . 
9 Joint statement by FIFA, the AFC, UEFA, the Bundesliga, LaLiga, the Premier League and Lega Serie A 
regarding the activities of beoutQ in Saudi Arabia, 31 July 2019, (Exhibit QAT -227) . 
10 Office of the United Nations High Commissioner for Human Rights, Tech nical Mission to the State of 
Qatar 17 -24 November 2017, Report on the Impact of the Gulf Crisis on Human Rights, December 2017, 
(Exhibit QAT -21), para. 40.  
11 Second Supplemental Expert Report of Professor Gervais, 19 August 2019, (Exhibit QAT -223) , 
para. 22. WT/DS567/R/Add.1  
 
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  experience for nationals from other Members that have licensed their rights to beIN —nationals that 
are not impacted by the travel ban.  
D. Lack of criminal enforcement or other action by Saudi authorit ies 
36. beIN repeatedly requested that Saudi authorities take immediate action against beoutQ 
piracy, and has provided ample evidence of beoutQ 's illegal broadcast piracy in Saudi Arabia to these 
authorities. In addition, other right holders have also sent  letters to Saudi authorities requesting 
immediate action to stop the unauthorised and illegal transmission of their proprietary media 
content.  
37. The allegations of widespread commercial -scale piracy that beIN and other right holders 
have brought before Saudi authorities are well -founded and fully supported, as demonstrated by the 
extensive evidence before the Panel —evidence that was previously shared with or otherwise made 
available to Saudi authorities. Such evidence includes:  
• Public condemnations against the beoutQ piracy by right holders, including UEFA, the 
Confédération Africaine de Football ( "CAF"), the English Premier League, the World Tennis 
Governing Bodies, and the International Olympic Committee, among others.  
• A joint stat ement dated 22 January 2019 from FIFA, UEFA, the AFC, LaLiga, the English 
Premier League and Bundesliga, condemning beoutQ and its "flagrant breach {of rights 
holders '} intellectual property rights ".12 
• An AFC statement concerning beoutQ dated 9 January 2 019, condemning beoutQ 's illegal 
broadcasting of the AFC Asian Cup 2019.  
• Condemnations against the beoutQ piracy by international broadcasters, including NBC 
Universal (through their Telemundo subsidiary), BBC, and Sky.  
• Publicly available submissions t o the US Government under the 2019 Special 301 process 
from multiple right holders, including the Audiovisual Anti -Piracy Alliance, the International 
Intellectual Property Alliance, the National Basketball Association ( "NBA"), the United States 
Tennis Asso ciation ( "USTA "), Miramax, Sky UK Limited, and the Sports Coalition.  In these 
submissions, the right holders detailed the harm that the beoutQ piracy has caused to their 
business.  
• Multiple letters from beIN to the Ministry and GCAM, providing evidence o f beoutQ 's illegal 
broadcast piracy in Saudi Arabia.  
• Letters from UEFA and the BBC to the Ministry and GCAM, requesting immediate action to 
stop the unauthorised and illegal transmission of their proprietary media content.  
• A FIFA statement condemning b eoutQ 's unauthorised transmissions of the 2019 FIFA 
Women 's World Cup.  
38. The US Government 's Special 301 Priority Watch List, which added Saudi Arabia this year as 
one of the worst state actors in the realm of IP protection and enforcement, has also been  shared 
with Saudi Arabia.  Moreover, the Office of the US Trade Representative 's ("USTR ") 2018 Notorious 
Markets List, which "highlights prominent and illustrative examples of online and physical 
marketplaces that reportedly engage in and facilitate subst antial piracy and counterfeiting ", cited 
beoutQ as "an illicit pirate operation that has been widely available in Saudi Arabia and throughout 
the Middle East region and Europe ".13   
39. The UK Government also indicated that it has been investigating beoutQ 's theft of the English 
Premier League 's content.  In addition, the European Commission sent a letter to the Ministry of 
Foreign Affairs of Saudi Arabia in February 2018, detailing the harm European right holders have 
suffered as a result of the beoutQ pir acy.14   
40. Nevertheless, despite the extensive evidence of beoutQ 's widespread, commercial -scale 
copyright piracy in Saudi Arabia, Saudi authorities have taken no criminal action against beoutQ or 
 
12 FIFA, "Joint Public Statement on behalf of FIFA, UEFA, AFC, The Premier League, LaLiga and 
Bundesliga on beoutQ ", 22 January 2019, (Exhibit QAT -54); UEFA, "Joint Statement on behalf of FIFA, UEFA, 
AFC, The Premier League, LaLiga and Bundesliga on beo utQ", 22 January 2019, (Exhibit QAT -55). 
13 Excerpts of United States 2018 Out -of-Cycle Review of Notorious Markets, Office of the United States 
Trade Representative (April 2019) (Excerpts), (Exhibit QAT -187) , pp. 2, 15.  
14 European Union 's Third Party Oral Statement, Exhibit EU -1. WT/DS567/R/Add.1  
 
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  its facilitators, including but not limited to Arabsat, S elevision, Raed R. Khusheim (the CEO of 
Selevision), and high -ranking Saudi government officials.  Saudi Arabia admits this inaction in its 
responses to the Panel 's post -hearing questions.  
E. Gatekeeping function  
41. beIN and other right holders are unable to obtain civil and criminal remedies for copyright 
infringement in Saudi Arabia for yet another reason —as a result of the gatekeeping function built 
into the Saudi legal system, which requires Ministerial approval o f any decision of the Copyright 
Committee.   
42. Article 25 of Saudi Arabia 's Copyright Law establishes a "Copyright Committee " to examine 
copyright violations.  Article 25(2) of the Copyright Law states that "Decisions of the Committee 
shall be made by majority vote, which shall be endorsed by the Minister ".15  Similarly, Article 25(6) 
of the Implementing Regulations provides tha t "Decisions of the committee shall be issued by 
majority vote and shall be referred by the chairman of the committee to the Minister, and said 
decisions shall not be effective unless approved by the Minister ".16  Article 25(7) of the Implementing 
Regulati ons states:  "If the committee finds the violation committed grave and punishable with 
imprisonment or a fine exceeding one hundred thousand riyals, or closing the store permanently 
and canceling the license, the matter shall be referred to the Minister fo r his approval to forward 
this violation to the Board of Grievances for review, and to determine the appropriate punishment 
against the infringer ".17    
43. This gatekeeping function, which subjects the Copyright Committee decisions to mandatory 
ministeria l approval, serves as an additional obstacle to accessing civil and criminal enforcement 
procedures in Saudi Arabia.  The very existence of a political gatekeeper that can block the ruling of 
the Copyright Committee in a dispute over the beoutQ piracy mean s that, even at the initial point 
of considering whether to pursue copyright infringement action (whether civil or criminal), it is 
already clear that any such action would be futile.     
44. Saudi Arabia has asserted —citing an amended Copyright Law and Co pyright Regulation that 
are not publicly accessible and that have not been notified to TRIPS Council —that the decisions of 
the Copyright Committee now require approval by the  Saudi Authority for Intellectual Property 's 
("SAIP") Board of Directors,  instead of a single minister.  Even if Saudi Arabia has transferred the 
gatekeeping function from the Minister to the Board of Directors, the Saudi government maintains 
similar —if not more —discretionary powers to authorize access to the Copyright Committee and to 
approve its decisions.  A review of the complete SAIP Regulation further demonstrates the non -
judicial and political nature of the SAIP Board of Directors.  The Board of Directors ' functions are 
those of an executive, and do not resemble the characteristic s that one would expect to find in a 
judicial authority (or administrative adjudicator), which must be in place to review claims of 
copyright infringement pursuant to Part III of the TRIPS Agreement.  
45. Regardless of the precise identity of the gatekeeper —the Ministry, or a Board of Directors 
consisting mostly of high -ranking government officials —the gatekeeper, in its capacity as a political 
actor, would never open the gates for copyright infringement actions against beoutQ piracy.  As 
such, it is evident  that the mere existence of the "gatekeeping function " had the effect of impeding 
the initiation of any civil or criminal copyright infringement proceedings.   
III. SAUDI ARABIA VIOLATES MULTIPLE OBLIGATIONS UNDER THE TRIPS  AGREEMENT  
A. Saudi Arabia viola tes Article 3.1 of the TRIPS Agreement  
1. Legal standard under Article 3.1 of the TRIPS Agreement  
46. Article 3.1 of the TRIPS Agreement sets out a "national treatment obligation ", which 
guarantees that the Member shall treat foreign nationals no less favo urably than its own nationals 
 
15 Copyright Law, Royal Decree No. M -41 of 2 Rajab, 1424, 30 August 2003, (Exhibit QAT -112)  
(emphasis added).   
16 Implementing Regulations of Copyright Law, Minister of Culture and Information's decision No. 
(1688/1), 29 May 2004 an d amended by decision No. (1640), 22 June 2005, (Exhibit QAT -113)  (emphasis 
added) .    
17 Implementing Regulations of Copyright Law, Minister of Culture and Information's decision No. 
(1688/1), 29 May 2004 and amended by decision No. (1640), 22 June 2005, (Exhibit QAT -113)  (emphasis 
added) .    WT/DS567/R/Add.1  
 
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  with respect to the protection of intellectual property.  There are two elements to a successful claim 
under this provision: "(1) the measure at issue must apply with regard to the protection of 
intellectual property; and (2) the nationals of other Members must be accorded 'less favourable ' 
treatment than the Member 's own nationals ".18   
2. Saudi Arabia accords to Qatari nationals treatment less favourable 
than that accorded to Saudi nationals, with regard to the protection 
of intellectual property  
47. Saudi Arabia 's treatment of Qatari nationals violates Article 3.1 of the TRIPS Agreement 
because it is more difficult for Qatari nationals to enforce their intellectual property rights in Saudi 
Arabia than it is for Saudi nationals to do so.  
48. First, Qatari nationals face significant difficulty in securing legal representation in Saudi 
Arabia because Saudi attorneys will not represent Qatari nationals in copyright infringement cases, 
due to the risk that they will b e violating Saudi Arabia 's anti -sympathy measures.  Second, Qatari 
nationals are not permitted to travel to Saudi Arabia for the purpose of initiating or participating in 
civil judicial copyright enforcement procedures. Third, even if Qatari nationals had access to the 
Saudi civil legal system, it is highly unlikely that the gatekeeper —i.e., the Minister (in his capacity 
as a political actor) —would open the gate with respect to adjudicating infringement of copyrights 
held by Qatari nationals. Fourth, despit e having criminal procedures in its laws and regulations to 
counteract commercial scale copyright piracy, Saudi Arabia has not applied such procedures against 
beoutQ piracy because the most direct victim is a Qatari national. Finally, the 19  June 2017 Circ ular 
has effectively stripped Qatari nationals of copyright and other intellectual property protections.  
49. Thus, the Panel should find that Saudi Arabia 's measures, including the anti -sympathy and 
related measures ( e.g., travel restrictions), lack of cri minal remedies, Ministerial political 
gatekeeping, and the 19 June 2017 Circular, violate Article 3.1 of the TRIPS Agreement, because 
Saudi Arabia accords to Qatari nationals treatment that is less favourable than that accorded to 
Saudi nationals with rega rd to the protection of intellectual property.  
B. Saudi Arabia violates Article 4 of the TRIPS Agreement  
1. Legal standard under Article 4 of the TRIPS Agreement  
50. Article 4 of the TRIPS Agreement provides a most -favoured nation obligation, which, with 
regards to intellectual property rights, requires any advantage, favour, privilege, or immunity that 
a Member grants to the nationals of any country to be granted to the nationals of all WTO Members.   
2. Saudi Arabia fails to accord to Qatari nationals ad vantages, favours, 
privileges and immunities that it grants to other Members ' nationals  
51. Saudi law generally provides owners and licensees of intellectual property rights, including 
those owned by or licensed to non -Saudi nationals, with the ability to access civil and criminal 
remedies to enforce their intellectual property rights. However, Qatari nationals are generally unable 
to access such remedies in respect of their intellectual property rights. Thus, Saudi Arabia accords 
to Qatari natio nals treatment less favourable than it accords to nationals of other countries with 
regard to the protection of intellectual property.  
52. First, nationals from other countries can generally engage Saudi attorneys to enforce their 
intellectual property rig hts in Saudi Arabia, and they can travel to Saudi Arabia to facilitate 
enforcement of those rights. By contrast, as discussed above, Qatari nationals are not afforded those 
benefits as a result of the measures at issue, including the anti -sympathy measures  and the travel 
ban. Second, even if Qatari nationals had access to the Saudi civil legal system, it is highly unlikely 
that the gatekeeper ( i.e., the Minister) would open the gate with respect to disciplining infringement 
of copyrights held by Qatari nati onals. Third, Saudi Arabia has not criminally prosecuted beoutQ 
piracy, in part, because the most direct victim is a Qatari national. Fourth, the 19 June 2017 Circular 
has effectively stripped Qatari nationals of copyright and other intellectual property p rotections.  
 
18 Panel Reports, EC – Trademarks and Geographical Indications, para. 7.175.  WT/DS567/R/Add.1  
 
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  C. Saudi Arabia violates Articles 9, 11, 11 bis, and 11 ter of the Berne 
Convention (1971), as incorporated into Article 9 of the TRIPS Agreement  
1.  Legal standard under Articles 9, 11, 11bis, and 11ter of the Berne 
Convention (1971)  
53. The ob ligations under Articles 9, 11, 11 bis, and 11 ter of the Berne Convention (1971) are 
incorporated into the TRIPS Agreement by virtue of Article 9 of the TRIPS Agreement.   
54. Article 9 of the Berne Convention (1971) provides authors with the right to bar a ll others 
from reproduction, of any kind, of their literary and artistic works, whatever the mode or form.  
Article 11 of the Berne Convention (1971) provides authors of dramatic, dramatico -musical, and 
musical works with the exclusive right of authorizing  live or recorded public performances, or any 
communication made available to the public of the performing of these works. Article 11 bis(1) of 
the Berne Convention (1971) provides for three distinct rights relating to (i) broadcasting and other 
wireless co mmunications; (ii) public communication of broadcast by wire or rebroadcast; and (iii) 
public communication of broadcast by loudspeaker or analogous instruments. And Article 11 ter of 
the Berne Convention (1971) provides authors of literary works with the e xclusive right (i) to relate, 
recount, or describe their literary works to the public by any means or process; and (ii) of authorizing 
any communication that relates, recounts, or describes an author 's literary works when such 
communications are made avail able to the public.  
55. Qatar and Saudi Arabia agree that professional sports broadcasts constitute protected 
"works " under the provisions of the Berne Contention (1971), as incorporated into the 
TRIPS  Agreement. The phrase "literary and artistic works " is broadly defined by Article 2(1) of the 
Berne Convention (1971) as including "every production in the literary, scientific and artistic domain, 
whatever may be the mode or form of its expression ".   
56. A WTO Member must do more than merely provide such r ights in name only. Indeed, for 
such rights to be meaningful, they must be enjoyed.  While Saudi Arabia provides certain rights on 
paper ( i.e., in the text of their copyright law and regulations), those rights effectively have been 
stripped from certain au thors of works.   
2. Saudi Arabia fails to provide authors of literary and artistic works 
with the exclusive rights that must be accorded pursuant to 
Articles  9, 11, 11 bis, and 11 ter of the Berne Convention (1971)  
57. It is undisputed that beIN is the author of literary and artistic works, as defined by the Berne 
Convention. The commentary, text, visual charts, music, etc. in a typical sports match, as 
broadcasted by beIN, are generally literary and artistic works. Furt her, beIN is also the author of 
dramatico -musical and musical works. For example, the music used in a typical sports event, as 
broadcasted by beIN, is understood as a musical work.  
58. In violation of Article 9 of the Berne Convention (1971), Saudi Arabia has stripped beIN (and 
its licensors) of the exclusive right of authorizing reproduction, of any kind, of its literary and artistic 
works. Specifically, the 19 June 2017 Circular precludes "the legal right to protect any related 
intellectual property right s".19  As a result, beIN and its licensors have been stripped of the exclusive 
rights to prevent unauthorised rebroadcasts by beoutQ, which constitute "reproduction " under 
Article9 of the Berne Convention (1971).  Moreover, due to Saudi Arabia 's anti -sympa thy and related 
measures ( e.g., travel restrictions), the Ministry 's gatekeeping function, and the total lack of criminal 
actions, the right holders are effectively completely blocked from accessing civil and criminal 
remedies in Saudi Arabia, such that th ey cannot, in practice, enjoy their intellectual property rights.  
In an extreme situation such as this one, the inability of right holders to enforce their exclusive 
rights violates Saudi Arabia 's substantive obligations under Article 9 of the Berne Conve ntion (1971).  
59. In violation of Article 11 of the Berne Convention (1971), Saudi Arabia fails to provide beIN 
and its licensors with the exclusive right of authorizing live or recorded performances or any 
communication made available to the public of th eir dramatic, dramatic -music, and musical works.  
Specifically, the 19 June 2017 Circular has stripped beIN and its licensors of the exclusive rights of 
authorizing live or recorded performances or any communication with respect to dramatic, 
dramatico -musical, and musical works.  The inability of right holders to enforce their exclusive rights, 
in turn, effectively removes the ability to enjoy the intellectual property rights, in violation of Saudi 
 
19 Saudi Ministry of Culture and Information and General Commission for Audiovisual Media, Circular, 19 
June 2017, (Exhibit QAT -1), p. 2 (empha sis added).  WT/DS567/R/Add.1  
 
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  Arabia 's substantive obligations under Article 11 of the Be rne Convention (1971).  In addition, the 
Saudi government itself has actively violated Article 11 of the Berne Convention (1971) by, for 
example, sponsoring the viewing of the 2018 FIFA World Cup on 294 screens, all showing beoutQ 
pirated broadcasts.  
60. Further, in violation of Article 11 bis of the Berne Convention (1971), Saudi Arabia fails to 
provide beIN and its licensors with the exclusive right of authorising (i) broadcasting and other 
wireless communications of their works; (ii) public communication  of broadcast by wire or 
rebroadcast of their works; or (iii) public communication of broadcast by loudspeaker, or analogous 
instruments, of their works. Specifically, through the 19 June 2017 Circular, Saudi Arabia has 
stripped beIN and its licensors of t he exclusive right of authorizing their literary and artistic works 
via broadcasting and other wireless communications and public communication of broadcast by wire 
or rebroadcast.  The continuing inability of beIN and its licensors to take any action that  would stop 
the beoutQ piracy also effectively removes the ability of the right holders to enjoy their intellectual 
property rights, reflecting a failure of Saudi Arabia to provide the exclusive rights in this respect.  
Finally, by sponsoring the viewing o f the 2018 FIFA World Cup on 294 screens, all showing beoutQ 
pirated broadcasts, the Saudi government itself has actively violated Article 11 bis(1)(iii) of the Berne 
Convention (1971).  
61. In addition, in violation of Article 11 ter of the Berne Convention (1971), Saudi Arabia fails 
to provide beIN and its licensors with the exclusive right of authorising the public recitation of their 
works, or any communication to the public of the recitation of their works.  By stripping beIN and 
its licensors of their IP  rights through the 19 June 2017 Circular, Saudi Arabia has allowed for 
communicating the recitation of literary works to the public, without authorization of the right 
holders, in violation of Article 11 ter of the Berne Convention.  Moreover, as discussed  above, due to 
anti-sympathy and related measures ( e.g., travel restrictions) that foreclose access to counsel, the 
Ministry 's denial of access to administrative tribunals and courts, and the total lack of criminal 
remedies, Saudi Arabia has effectively re moved the ability of beIN and its licensors to enjoy their IP 
rights, and as a result, has violated its substantive obligations under Article 11 ter of the Berne 
Convention (1971).   
62. Saudi Arabia acknowledges in its own submissions that it fails to prov ide intellectual property 
protection to entities that broadcast content in Saudi Arabia without a Saudi -issued broadcast 
license.  Based on this admission, alone, it is clear that Saudi Arabia violates multiple obligations of 
the TRIPS Agreement, including  Articles 9, 11, 11 bis, and 11 ter of the Berne Convention (1971), as 
incorporated into Article 9 of the TRIPS Agreement.  While international copyright rules allow WTO 
Members to censor content (pursuant to Article 17 of the Berne Convention (1971), as inc orporated 
into the TRIPS Agreement by Article 9), that does not in any way allow a WTO Member to deny 
copyright protection to content that has not been the subject of a broadcast license.  
D. Saudi Arabia violates Article 14.3 of the TRIPS Agreement  
1. Lega l standard under Article 14.3  
63. Article 14.3, as a whole, provides that, at a minimum, radio and television organisations 
shall have the right to prohibit unauthorised fixations, the reproduction of fixations, and the wireless 
rebroadcasting, as well as communication of wireless television transmissions of the same, to the 
public.  If a Member chooses not to grant such rights, it may nevertheless satisfy the terms of Article 
14.3, pursuant to the second sentence, by providing the owners of the copyright ( i.e., right holders) 
"in the subject matter of broadcasts " the ability to prohibit "the fixation, the reproduction of fixations, 
and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public 
of television broadcasts of the same ". 
2. Saudi Arabia has failed to provide broadcasting organisations with 
the right to prohibit the acts listed in Article 14.3  
64. beIN is a broadcasting organisation within the meaning of Article 14.3 of the TRIPS 
Agreement, as it is  an "organization that broadcasts works and objects of related rights ".20  beIN is 
entitled to any broadcasting rights in the MENA region, including Saudi Arabia, for broadcasts of its 
own original content as well as broadcasts of content licensed to it by  certain right holders.  
 
20 WIPO, Guide to the Copyright and Related Rights Treaties Administered by WIPO and Glossary of 
Copyright and Related Rights Terms, 2003 ( "WIPO Copyright Guide "), (Exhibit QAT -142) , p. 271 (emphasis 
removed).  WT/DS567/R/Add.1  
 
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  65. It is uncontested that Saudi Arabia provides, in the text of its Copyright Law and 
Implementing Regulations, related rights to broadcasting organisations in line with the first sentence 
of Article 14.3 of the TRIPS Agreement.  Accordingly, there is no dispute that the last sentence of 
Article 14.3 of the TRIPS Agreement is irrelevant, as Saudi Arabia has chosen to "grant such 
{related} rights to broadcasting organizations ".     
66. Despite spelling out such rights in its Copyright Law and Implementing Regulations, 
however, Saudi Arabia has failed to provide beIN with the related right to prohibit unauthorised 
rebroadcasting by wireless means of broadcasts, as well as the communicatio n to the public of 
television broadcasts of the same.   
67. In particular, due to the anti -sympathy and related measures ( e.g., travel restrictions), 
Qatari nationals have been unable to engage counsel or travel to Saudi Arabia to initiate proceedings 
to prohibit beoutQ 's unauthorised rebroadcasting of broadcasts by wireless means, as well as the 
communication to the public of television broadcasts of the same.   
68. Further, the 19 June 2017 Circular has unduly stripped Qatari nationals of protection of 
copyrights and related rights (including broadcasting rights).  As a result, beIN, in its role as a 
broadcasting organisation, has been unable to prohibit beoutQ 's unauthorised rebroadcasting of 
broadcasts by wireless means, as well as the communication to t he public of television broadcasts 
of the same.  
69. In addition, the gatekeeping function, whether exercised by the Minister or by the Board of 
Directors, makes it impossible for beIN to protect its rights through a copyright (or related right) 
infringemen t cases, which further forecloses beIN 's right to prohibit beoutQ 's unauthorised 
rebroadcasting by wireless means of broadcasts, as well as the communication to the public of 
television broadcasts of the same.   
70. Finally, Saudi Arabia admits that compan ies lacking a Saudi broadcasting license, such as 
beIN (and allegedly beoutQ), have no ability to protect their intellectual property, which Qatar 
understands to encompass related rights such as the broadcasting right in Article 14.3. This 
constitutes a cl ear violation of Article 14.3 of the TRIPS Agreement.  
71. Thus, the Panel should find that Saudi Arabia 's measures, including the anti -sympathy and 
related measures ( e.g., travel restrictions), the 19 June 2017 Circular, and the gatekeeping function 
violat e Article 14.3 of the TRIPS Agreement.  
E. Saudi Arabia violates Article 41.1 of the TRIPS Agreement  
1. Legal standard under Article 41.1 of the TRIPS Agreement  
72. Article 41.1 sets forth the general obligation of Members to make available enforcement 
procedures, as specified in Part III of the TRIPS Agreement, including both civil and criminal 
procedures.  It further provides that such enforcement procedures must "permit effective action 
against any acts of infringement of intellectual property rights cov ered by this Agreement ". Such 
procedures must include "expeditious remedies to prevent infringements and remedies which 
constitute a deterrent to further infringements ".   
73. Importantly, Article 41.1 underlines the need for effectiveness of the remedies provided for 
in Part III.  Where a Member makes available the remedies in Part III as a formal matter in its law, 
but places obstacles in the path of those seeking to access those remedies such that their 
effectiveness and deterrent effect on further infri ngement are undermined, the Member fails to 
comply with Article 41.1.  
2. Saudi Arabia has failed to ensure that enforcement procedures are 
available against infringement of intellectual property rights  
74. Saudi Arabia effectively deprives right holders f rom accessing civil judicial or criminal 
procedures for the enforcement of intellectual property rights.  While Saudi Arabia 's general legal 
regime on intellectual property rights does contain, on the books, provisions relating to enforcement 
procedures, S audi Arabia has adopted measures that make it impossible, or unduly difficult, for 
certain right holders to access these procedures.  The impacts of such measures extend not only to 
Qatari nationals but also to third party right holders that have licensed their rights to Qatari 
nationals, and who have also been unable to access civil and criminal remedies in Saudi Arabia.  WT/DS567/R/Add.1  
 
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  75. Qatari nationals who own, or hold licenses over, copyrighted works are unable to 
meaningfully invoke the enforcement procedures set out in Part III of the TRIPS Agreement. IP right 
owners from third countries that have licensed their rights to Qatari nationals likewise are unable to 
initiate any such enforcement procedures. First, due to the anti -sympathy and related measures 
(e.g., travel restrictions), Qatari nationals (and those that have licensed their rights to Qatari 
nationals) cannot engage lawyers or participate in IP -related proceedings in Saudi Arabia.  Second, 
the 19 June 2017 Circular has unduly stripped beIN, and those wh o have licensed their rights to 
beIN, of copyright protections, including enforcement -related rights and remedies. Third, the 
Minister 's gatekeeping function has been applied to prevent beIN and their licensors from effectively 
accessing enforcement proced ures set out in Part III of the TRIPS Agreement. It is inconceivable 
that the Minister or the Board of Directors would open the gates to permit a successful IP 
infringement claim against a piracy scheme that (as demonstrated by the evidence of record) was 
directed by the Saudi government itself, let alone that the gatekeeper would do so for a Qatari right 
holder (or a licensor of a Qatari right holder), given the anti -sympathy measures.   
76. In addition, Saudi Arabia admits in its own submissions that "{u}nlicensed distributors of 
illegally distributed content do not have a right to protect copyright in such illegally distributed 
content ".21  As such, Saudi Arabia admits to a clear violation of the TRIPS Agreement because it 
denies certain right holders prot ection of intellectual property rights, including the right to access 
civil and criminal enforcement procedures pursuant to Article  41.1 of the TRIPS Agreement. There 
is no exception found in the TRIPS Agreement, or the Berne Convention (1971), that would allow a 
WTO Member to deny copyright protection to content simply because that Member decides that that 
the broadcaster of that content should not be granted a broadcast license.   
77. While Saudi Arabia appears to allege that right holders must initiate c ivil judicial proceedings 
against infringement through filing a complaint with SAIP authorities, no such role for the SAIP is 
reflected in the Saudi Copyright Law currently on the record, including the version submitted by 
Saudi Arabia.  As is clear from t he Saudi law, itself, the appropriate venue for initiating civil judicial 
proceedings in Saudi Arabia has been, and continues to be, the Copyright Committee. For the 
reasons detailed above, Qatari nationals and their licensors lacked access to the Copyrigh t 
Committee. Based on Saudi Arabia 's own Copyright Law and advice of Saudi counsel shared with 
third party right holders —and as also confirmed by publicly available Saudi government assertions 
outside the context of this dispute —neither beIN nor the third -party right holders understood the 
SAIP to be a proper forum for initiating civil judicial proceedings against copyright infringement.  
Indeed, Qatar submitted evidence confirming that the SAIP was not operational and did not 
"effectively launch its activi ties" until 201922—after the establishment of the Panel in this proceeding 
on 18  December 2018.  
F. Saudi Arabia violates Article 42 of the TRIPS Agreement  
1. Legal standard under Article 42 of the TRIPS Agreement  
78. Article 42, entitled "Fair and Equitabl e Procedures ", requires that Members make "civil 
judicial procedures " "available to right holders " concerning "the enforcement of any intellectual 
property covered by " the TRIPS Agreement.  In addition to this general requirement, it provides 
several speci fic instances of "fair and equitable procedures " that must be implemented by Members, 
including, inter alia , the right to be "represented by independent legal counsel " and the right to 
"substantiate … claims and to present all relevant evidence ". 
2. Saudi Arabia has failed to make civil judicial procedures available to 
enforce intellectual property rights  
79. Qatari nationals who own, or hold licenses over, intellectual property rights face significant 
hurdles making them unable to invoke the enforcement p rocedures set out in Article 42 of the 
TRIPS  Agreement.  IP right owners from third countries that have licensed their rights to Qatari 
nationals likewise face many of the same hurdles.  First, due to the anti -sympathy and related 
measures ( e.g., travel restrictions), Qatari nationals have been unable to obtain legal representation 
in Saudi Arabia, and have been precluded from personally attending legal proceedings to present 
evidence.  Second, the 19 June 2017 Circular has unduly stripped beIN ( and those who have licensed 
their rights to beIN) of IP protections, precluding them from "civil judicial proceedings concerning 
 
21 Responses of the KSA to the Panel 's Post -Hearing Questions to the Parties Following the Second 
Substantive Meeting of the Panel, para. 25.  
22 Al Tamimi & Co.,  Launch of Saudi IP Authority , November 2018, (Exhibit QAT -250) . WT/DS567/R/Add.1  
 
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  the enforcement of any intellectual property right ". Third, the Minister 's gatekeeping function has 
been applied to prevent beI N and its licensors from effectively accessing civil judicial procedures set 
out in Article 42 of the TRIPS Agreement.  
80. Saudi Arabia 's measures have foreclosed not only the right to be "represented by 
independent legal counsel " for Qatari nationals, but  also for certain right holders from third countries.  
As the major football right holders explained in their joint statement, "{o}ver the past 15 months, 
we spoke to nine law firms in KSA, each of which either simply refused to act on our behalf or initia lly 
accepted the instruction, only later to recuse themselves.  As copyright holders we have reached the 
conclusion, regrettably, that it is now not possible to retain legal counsel in KSA which is willing or 
able to act on our behalf in filing a copyright  complaint against beoutQ ".23  This provides further 
confirmation that beIN 's understanding regarding its inability to obtain legal representation in Saudi 
Arabia is accurate.  
G. Saudi Arabia violates Article 61 of the TRIPS Agreement  
1. Legal standard under Article 61 of the TRIPS Agreement  
81. Qatar has set out in detail the legal standard of Article 61 of the TRIPS Agreement, element 
by element.  To recall, Article 61 requires that Members actually apply criminal procedures and 
penalties, at least in situations of egregious  commercial scale trademark counterfeiting or copyright 
piracy.  
82. Such an interpretation of Article 61 does not imply that Members are under an obligation to 
actively prosecute all cases of wilful trademark counterfeiting or copyright piracy on a commercial 
scale.  Rather, Article 61 mandates that Members prosecute such counterfeiting or piracy at least in 
some situations, particularly in egregious cases of conduct that qualifies as a crime.  This is because 
the criminal pr ocedures and penalties that appear on the books must be understood by potential 
infringers (as well as right holders) as having some meaning.  Otherwise, the "{r}emedies available " 
will not be "sufficient to provide a deterrent ", within the meaning of the second sentence of 
Article  61.   
83. Further, the use of the phrase "to be applied " in Article 61 can be contrasted with the use of 
the phrases, e.g., "are available " (in Article 41.1), "shall make available " (in Article 42), and "shall 
have the authority " (in Articles 44, 45 and 46) in other enforcement -related provisions in Part III of 
the TRIPS Agreement, in a manner that clarifies the special nature of the obligation in Article 61.  
Unlike other provisions in Part III, Article 61 requires that criminal procedures are "to be applied ", 
at least in situations of egregious commercial scale trademark counterfeiting or copyright piracy.  
84. If a WTO Member were to systematically refuse to apply criminal procedures and penalties 
against widespread, open, egregi ous commercial scale piracy —or to even encourage and participate 
in such piracy —that Member could not be considered as providing criminal procedures and penalties 
"to be applied  at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial 
scale", within the meaning of Article 61.  Such a WTO Member could not be found to have in place 
a regime that provides remedies that would be "sufficient to provide a deterrent " with respect to 
commercial scale copyright piracy, within the meaning of the second sentence of Article 61.  
2. Saudi Arabia fails to apply criminal procedures and penalties in 
cases of wilful copyright piracy on a commercial scale  
85. Saudi Arabia has fai led to apply criminal procedures and penalties even for the most 
widespread, sophisticated pattern of broadcast piracy that the world has ever seen.  The egregious 
nature of the beoutQ piracy is reflected in the large number of right holders that have been  impacted, 
the widespread international attention garnered by beoutQ 's brazen actions, and the Saudi 
government 's open support for, promotion of and participation in the piracy.  
86. Indeed, rather than initiating any criminal proceedings against beoutQ or applying any 
penalties against the perpetrators, the Saudi government has actively promoted and even 
participated in the beoutQ piracy.  One public example is the Saudi government 's sponsoring of the 
viewing of the 2018 FIFA World Cup on 294 screens, all s howing beoutQ pirated broadcasts.  Such 
participation in the beoutQ piracy by the Saudi government highlights Saudi Arabia 's failure to apply 
 
23 Joint statement by FIFA, the AFC, UEFA, the Bundesliga, LaLi ga, the Premier League and Lega Serie A 
regarding the activities of beoutQ in Saudi Arabia, 31 July 2019, (Exhibit QAT -227)  (emphasis added).  WT/DS567/R/Add.1  
 
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  criminal procedures and penalties, and its failure to make available remedies "sufficient to provide 
a deterrent ", within the meaning of Article 61.   
87. As the European Union stated in its responses to the Panel 's post -hearing questions:  
if it is proven that the Saudi government supported, facilitated or 
even participated in the alleged piracy, it could be argued th at Saudi 
Arabia does not have an effective criminal procedure or even that 
{Saudi Arabia} de facto  does not provide for criminal procedures 
and penalties for infringements in the case of the piracy of beIN 's 
content.24 
Qatar has demonstrated that the Saudi  government supported, facilitated, and participated in the 
beoutQ piracy.  As revealed in the witness statement in Exhibit QAT -222, beoutQ was established 
and operated under the direction and control of the Government of Saudi Arabia.  Accordingly, Qatar 
submits that Saudi Arabia does not have, in the words of the European Union, "an effective criminal 
procedure ", and indeed Saudi Arabia "de facto does not provide for criminal procedures and penalties 
for infringements " involving piracy of content broadcas t by beIN.  
IV. SAUDI ARABIA 'S AFFIRMATIVE DEFENSE  
88. Saudi Arabia seeks to shelter its actions from scrutiny through offering a novel argument 
under Article 73(b) of the TRIPS Agreement.  Saudi Arabia submits that, regardless of the character 
of the measu res at issue referred to the Panel by the Dispute Settlement Body ( "DSB"), the relevant 
action for purposes of this dispute is its decision to sever diplomatic relations with Qatar.  It asserts 
that action in this form is justified under Article  73(b)(iii) .   
89. Qatar has shown that Saudi Arabia fundamentally misunderstands the nature of the security 
defense in Article 73(b)(iii), and has failed to defend the specific measures at issue  and claims that 
form the "matter " referred to the Panel.   
A. The interp retation of Article 73(b)(iii) of the TRIPS Agreement  
1. Affirmative defense  
90. Article 73(b) begins with the clause "{n}othing in this Agreement shall be construed to 
prevent " certain actions.  Like other provisions that use this formulation, the language establishes 
an exception  and an affirmative defense  to obligations found elsewhere in the TRIPS Agreement.   
91. The nature of Article 73(b)(iii) as an exception and an affirm ative defense dictates the order 
of analysis for the Panel. The Panel must first address Qatar 's substantive claims under the TRIPS  
Agreement to determine if there are violations, and then, second, turn to the justification invoked 
by Saudi Arabia.   
92. A further consequence of Article 73(b)(iii) being an affirmative defense is that the party 
invoking the defense bears the burden of proof to substantiate its elements.  A respondent must 
actually invoke the defense in respect of measures alleged to violate substantive provisions of the 
TRIPS Agreement.   
2. "any action which it considers necessary for the protection of its 
essential security interests " 
93. The words "any action " refer to measures at issue in a dispute.  Absent the exception, these 
measures w ould be "prevent{ed} " by the application of substantive rules in the TRIPS Agreement.   
94. It follows that the respondent must invoke the defense in connection with specific measures 
at issue, claimed by the complainant to violate the TRIPS Agreement.  In  a case (like this one) where 
a respondent argues that the measures at issue are not considered necessary, the defense does not 
apply, even if the respondent considers some other measure necessary for protection of its security 
interests.  
95. The words "which it considers necessary " confer a margin of discretion on a Member to 
decide what "action " is necessary.  However, this margin of discretion is not unbounded, and is 
subject to review by a panel.  It is a foundational obligation of international law tha t treaties must 
 
24 Responses by the European Union to the Questions to the Third Parties, para. 22 (emphasis omitted).  WT/DS567/R/Add.1  
 
- 26 - 
 
  be interpreted and performed in good faith.  The words immediately following "which it considers 
necessary "—i.e., "for the protection of its essential security interests "—set out the purpose for which 
a Member may take "action " under Articl e 73.  Actions taken for other purposes, or actions not 
considered "necessary " for the protection of essential security interests, cannot in good faith be 
justified under Article 73(b).  Thus, a panel must review the exercise of discretion to ensure that a n 
"action ", otherwise inconsistent with the TRIPS Agreement, is exercised for the protection of 
essential security interests, and not in pursuit of different or ulterior objectives.  
96. In the expression "essential security interests ", the terms "essential " and "security " are 
adjectives modifying the noun "interests ".  Among all the "interests " that a State may validly hold 
and legally protect, it is only a sub -category which is accommodated by the phrase "essential security 
interests ".  The panel in Russia – Traffic in Transit defined essential security interests as "relating to 
the quintessent ial functions of the state ".25   
3. "{t}aken in time of … emergency in international relations " 
97. For the defense under Article 73(b)(iii) to justify an otherwise TRIPS -inconsistent measure, 
the defended action must be "taken in time of war or other emer gency in international relations ".  
The question whether there is a "war or other emergency in international relations " is a matter of 
fact to be assessed objectively by the Panel under Article 11 of the Dispute Settlement Understanding 
("DSU"). 
98. The pa nel in Russia – Traffic in Transit  correctly held that, given its ordinary meaning, and 
when read in its context, an "emergency " refers to "situation of armed conflict, or of latent armed 
conflict, or of heightened tension or crisis, or of general instabil ity engulfing or surrounding a 
state".26  Such a situation is apt to threaten "defense or military interests, or maintenance of law 
and order interests ",27 thereby triggering the need for "protection " of its "essential security interests " 
in the sense of t he chapeau to Article 73(b).  A mere political or economic dispute does not amount 
to an emergency in international relations.   
B. Application of Article 73(b)(iii) of the TRIPS Agreement to the measures at 
issue  
99. Saudi Arabia attempts to invoke the security exception to defend its failure to protect IP 
rights.  However, Saudi Arabia 's reliance on the security exception in Article 73(b)(iii) of the 
TRIPS  Agreement fails.   
100. First and foremost, the defense fails because Saudi Arabia, itself, has re peatedly stated that 
it does not consider five of the six measures at issue to be necessary for the protection of its essential 
security interests.  Indeed, Saudi Arabia argues that the measures are "unrelated " to matters 
bearing upon its security interest s,28 in particular its severance of diplomatic relations with Qatar in 
June 2017.  Thus, as the defense under Article 73(b) applies solely in respect of measures that are 
considered by the respondent to be necessary to protect essential security interests,  the defense 
simply does not apply to five of the six measures at issue.   
101. As for Saudi Arabia 's reliance on the security defense with respect to a measure that is not 
being challenged in this dispute —namely, the severance of relations with Qatar —this is simply an 
irrelevant distraction, because Qatar does not challenge, in these proceedings, the severance of 
relations.  Such severance is not a measure at issue, is not subject to claims of violation, and there 
is no suggestion in these proceedings that  the TRIPS Agreement would "prevent " Saudi Arabia from 
cutting off diplomatic relations with Qatar.  Thus, although Saudi Arabia considers that Article 73(b) 
addresses "the real dispute " between the parties,29 it nevertheless acknowledges that the measures  
at issue and Qatar 's claims —the matter referred to the Panel —are unrelated to that distinct dispute.  
 
25 Panel Repo rt, Russia – Traffic in Transit , para. 7.71.  
26 Panel Report, Russia – Traffic in Transit , para. 7.76.  
27 Panel Report, Russia – Traffic in Transit , para. 7.76.  
28 Saudi Arabia 's Opening Statement at the First Substantive Meeting, paras. 3, 49; see also  Saudi  
Arabia 's Closing Statement at the First Substantive Meeting, para. 6; Responses of the KSA to the Panel 's Post -
Hearing Questions to the Parties Following the First Substantive Meeting of the Panel, para. 53; Saudi Arabia 's 
Second Written Submission, paras . 43-45, 50.  
29 Saudi Arabia 's Opening Statement at the First Substantive Meeting, paras. 3, 4, 5, 17.  WT/DS567/R/Add.1  
 
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  102. With respect to the sixth measure —the travel ban as it applies to IP protection —Saudi Arabia 
asserts that it "potential{ly} " considers that measure t o be necessary, because the ban is related to 
the severance of diplomatic relations.30   
103. Qatar has clarified that it does not challenge the travel ban in itself, but only its operation in 
combination with other measures to prevent Qatari nationals fro m protecting their IP rights.  In 
particular, the travel ban imposed against Qatari nationals results in their inability to protect IP rights 
when operating together with, among others, the anti -sympathy measures, the June 2017 Circular, 
and the political gatekeeping function of the Saudi government with respect to copyright 
infringement actions.   
104. As Qatar has explained, and Saudi Arabia has not attempted to refute, it is simply implausible 
that the comprehensive deprivation of the opportunity to protect IP rights could be considered 
necessary to protect Saudi Arabia 's essential security interests.  Saudi Arabia has indicated that the 
travel ban is related to its severance of relations with Qatar, which it, in turn, asserts relates t o 
security interests.  However, Saudi Arabia does not argue that the travel ban as it applies to IP 
protection, in conjunction with the other measures at issue, is somehow necessary for its security.     
105. Saudi Arabia claims that it has not, in bad fai th, relabeled commercial interests as essential 
security interests in order to avoid its trade obligations.  As Qatar has demonstrated, however, 
beoutQ was created and supported in order to develop Saudi Arabia 's budding media industry by 
driving out beIN and other broadcasters in the region, while lowering the cost for Saudi consumers 
to access popular sports and entertainment.  In this way, Saudi Arabia does pursue commercial 
interests through its support for beoutQ, and its failure to abide by basic TRIP S Agreement 
obligations that would allow beIN and other broadcasters to defend their commercial position.  
106. Moreover, Saudi Arabia 's affirmative defense fails for another reason:  because Saudi Arabia 
fails to show that any of the measures at issue were  "taken in time of war or other emergency in 
international relations " in the sense of Article 73(b)(iii).   
107. In the period immediately preceding the adoption of the measures at issue, relations 
between Qatar and Saudi Arabia were cordial and cooperativ e.  Saudi Arabia 's Second Written 
Submission points to three factors that it says show an emergency.  However, Saudi Arabia 's 
contentions do not survive scrutiny.   
108. First, Saudi Arabia refers to the severance of relations itself, saying this action tr iggered an 
emergency.  However, inasmuch as Saudi Arabia tries to defend its decision to sever relations by 
reference to its severance of relations, the argument is tautological.  Second, Saudi Arabia asserts 
that Qatar repudiated certain "Riyadh Agreement s" through a letter in February 2017, triggering an 
emergency.  However, the translation of the letter that Saudi Arabia relies upon to argue that Qatar 
moved to terminate the Agreements is incorrect and misleading.  Saudi Arabia 's own conduct, 
including t hrough registering the Riyadh Agreements with the United Nations in 2019, shows that it 
does not actually consider that Qatar repudiated the Agreements in 2017.  Third, Saudi Arabia 's 
assertion that Qatar interferes in the affairs of other States is false.  The broad and profound 
cooperation between Saudi Arabia and Qatar before and after the severance of relations, as well as 
the absence of any expression of concern prior to June 201 7, belie the assertion that disagreements 
between Qatar and Saudi Arabia rise to the level of an "emergency " in international relations.    
109.   Because Saudi Arabia has pointed to no "war or other emergency ", none of its actions can 
be qualified as "taken in time of " such circumstances.  Accordingly, inasmuch as Saudi Arabia 
defends any relevant action under Article 73(b)(iii), such action does not fall within the scope of the 
defense.  
V. CONCLUSION AND REQUEST FOR RELIEF 
110. For the reasons set out in its submissions to date, Qatar respectfully requests that the Panel 
find that Saudi Arabia 's measures violate:  
• Article 3.1 of the TRIPS Agreement, because they accord to Qatari nationals treatment that 
is less favourable than that accorded to Saudi natio nals with regard to the protection of 
intellectual property;  
 
30 Responses of the KSA to the Panel 's Post -Hearing Questions to the Parties Following the First 
Substantive Meeting of the Panel, para. 53.  WT/DS567/R/Add.1  
 
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  • Article 4 of the TRIPS Agreement, because, with regard to the protection of intellectual 
property, they fail to extend immediately and unconditionally to Qatari nationals advantages 
granted to nationals of other countries;  
• Articles 9, 11, 11 bis and 11 ter of the Berne Convention (1971), as incorporated into Article  9 
of the TRIPS Agreement, because they fail to provide authors of works with the exclusive 
rights mandated therein;  
• Article 14.3 of the TRIPS Agreement, because they fail to provide broadcasting organisations 
with the requisite exclusive rights;  
• Article 41.1 of the TRIPS Agreement, because they fail to make available to Qatari nationals 
enforcement procedures, as specified in Part  III of the TRIPS Agreement;  
• Article 42 of the TRIPS Agreement, because they fail to make available to Qatari nationals 
civil judicial procedures concerning the enforcement of intellectual property rights, including 
inter alia  the right to be represented  by independent legal counsel; and  
• Article 61 of the TRIPS Agreement, because they fail to apply criminal procedures and 
penalties to the wilful commercial scale piracy of beIN 's copyrighted material and that of its 
licensors.  
111. Based on these finding s and conclusions, Qatar respectfully requests that, pursuant to 
Article  19.1 of the DSU, the Panel recommend that the DSB request Saudi Arabia to bring itself into 
conformity with its obligations under the TRIPS Agreement.  
 
 
 
 
 WT/DS567/R/Add.1  
 
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  ANNEX B -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE KINGDOM OF SAUDI ARABIA  
1. The Real Dispute Before the Panel Concerns Saudi Arabia 's Essential Security Interests 
and Does Not Concern WTO Obligations  
1. As the Panel is aware, since 5 June 2017, Saudi Arabia has had no diplomatic or consular 
relations with the complaining Party because the Saudi Government concl uded that any direct or 
indirect interaction with the complaining Party would harm Saudi essential security interests.  Saudi 
Arabia has limited its engagement in this dispute to submitting arguments on the application of 
Security Exceptions  under Article 73 of the World Trade Organization ( "WTO") Agreement on Trade -
Related Aspects of Intellectual Property Rights ( "TRIPS Agreement "), and providing the Panel with 
information regarding its bona fide  invocation of the Security Exception . 
2. The complaining Party 's intent is using WTO proceedings to project the patently false 
impression to the international community, including third party participants in this dispute, that the 
complaining Party and Saudi Arabia interact on cordial terms. Nothing could be further from the 
truth. Saudi Arabia will not interact with the complaining Party until it conforms to international 
norms prohibiting state support for terrorism and rejects extremism, as it agreed to under the 
"Riyadh Agreements ", as described b elow.  
3. Based on Saudi Arabia 's approach to protecting its essential security interests, we have 
avoided all direct or indirect interaction with the complaining Party throughout these proceedings. 
Once again, we appreciate the Panel 's understanding in this r egard.  
4. Saudi Arabia profoundly regrets that a geopolitical confrontation with terrorism and extremism 
is unfolding before Panel in the guise of a dispute about WTO rules. As Saudi Arabia has made clear 
in all statements and submissions to the Panel, the re al dispute behind this false "intellectual 
property " case is the diplomatic, political, and security crisis among the Cooperation Council for the 
Arab States of the Gulf (known as the "GCC"), involving Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, 
and the Un ited Arab Emirates ( "UAE"), and other countries in the region, regarding the complaining 
Party's State support for terrorism and promotion of extremism. The actions of the complaining Party 
violate its international obligations, including under the "Riyadh  Agreements ", that were entered into 
by the GCC Countries between 2013 and 2014 in a collective effort to address the dangers of 
terrorism and extremism based on a common definition and approach to protecting our shared 
essential security interests.1 
5. As detailed in Saudi Arabia 's statements and submissions to the Panel,2 years of diplomatic 
effort to encourage the complaining Party to comply with its international obligations ended in 
February 2017 when the complaining Party repudiated the Riyadh Agreemen ts,3 which brought down 
the façade of its cooperation against terror and extremism.  Between February and June 2017, and 
thereafter, the complaining Party continued to act against the essential security interests of Saudi 
Arabia and other countries in the  region, in violation the explicit terms of the Riyadh Agreements.4 
As recent revelations continue to show, the acts of complaining Party continue to pose serious threats 
to the region and to the global community.5 
 
1 Second Writt en Submission of the Kingdom of Saudi Arabia, 30 August 2019 ( "KSA Second Written 
Submission "); Opening Statement of the Kingdom of Saudi Arabia at the First Substantive Meeting of the 
Panel, 9 July 2019, ( "KSA Opening Statement, First Panel Meeting "), par a. 5 and n. 3 (The First Riyadh 
Agreement, 23 and 24 November 2013 (Exhibit SAU -2)); the Mechanism Implementing the Riyadh Agreements 
(the "Implementing Mechanism "), 17 April 2014 (Exhibit SAU -3); and the Supplementary Riyadh Agreement, 
16 November 2014 (E xhibit SAU -4), are collectively referenced as the "Riyadh Agreements "); see also KSA 
Opening Statement, First Panel Meeting, paras. 23 -36. 
2 Ibid. 
3 Ibid, para. 34, citing Exhibit ARE -3. 
4 Ibid, para. 35.  
5 See KSA Second Written Submission, para. 8.  WT/DS567/R/Add.1  
 
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  6. In response to Saudi Arabia 's efforts t o confront the complaining Party and to obtain 
compliance with the Riyadh Agreements, the complaining Party has reacted by taking ill -conceived 
actions against Saudi Arabia based on spurious claims in several domestic and international fora. 
The WTO is one  of those fora where the complaining Party is exerting great efforts and resources to 
advance its agenda of unsubstantiated retaliation.  
7. The facts and circumstances underlying the real dispute before the Panel complicate the 
Panel 's task of making an objec tive assessment of "the matter before it " because the "matter " 
actually in dispute relates exclusively to measures taken to sever diplomatic and political relations 
in the context of the well -known political and geopolitical confrontation.  In order for th e Panel to 
discharge its obligation, it must recognize and take full consideration of the real geopolitical dispute 
that has been brought before the WTO as a trade dispute.  In particular, the political, geopolitical, 
and national security elements of the real, non -trade dispute underlying this proceeding provide 
reasons for the Panel to question the good faith of the complaining Party in bringing this case to the 
WTO in the first place, and to consider carefully how the real dispute taints the arguments an d 
evidence presented by the complaining Party.6 
2. Jurisdictional Issues  
2.1. The Matter Before the Panel  
8. As established before the Panel, the terms of reference of the "matter " referred to the WTO 
Dispute Settlement Body ( "DSB") in this case, as well as the relevant provisions of the TRIPS 
Agreement cited by Saudi Arabia, including Article 73(b)(iii), regarding the "action which [Saudi 
Arabia] considers necessary for the protect ion of its essential security interests. " 7 
9. Therefore, the "matter " before the Panel necessarily covers the comprehensive "measures " 
taken by Saudi Arabia to sever diplomatic and consular relations, as included in the Panel 's terms of 
reference , as well as the Security Exceptions  cited by Saudi Arabia.8 
10. The Panel 's terms of reference are as follows:  
 To examine, in the light of the relevant provisions of the covered 
agreements cited by the parties to the dispute, the matter referred to 
the DSB by Qatar in document WT/DS567/3 and to make such findings 
as will assist the DSB in making the recommendations or in giving the 
rulings provided for in those agreements.9 
11. The Panel 's terms of reference cover the "matter " referred to the DSB in this case, as well as 
the relevant provisions of the TRIPS Agreement cited by Saudi Arabia, including Article  73(b)(iii), 
regarding the "action  which [Saudi Arabia] considers necessary for the protection of its essential 
security interests. "  (Emphasis added.)  
12. The "matter" referred to the DSB by the complaining Party is characterized as having a direct 
relationship between the comprehensive "measures " taken by Saudi Arabia to sever diplomatic and 
consular relations, and the alleged impact of these measures on the protect ion of intellectual 
property in Saudi Arabia.  The matter referred to the DSB in document WT/DS567/3 provides as 
follows:  
A.  Measures at issue…  
In June 2017, Saudi Arabia imposed a scheme of diplomatic, political, 
and economic measures  against Qatar. Such measures  impacted, 
 
6 This applies in particular to evidence such as "witness statements " that cannot be substantiated under 
the procedures and resources available in WTO dispute proceedings.  
7 KSA Second Written Submission, paras. 22 -30. 
8 Ibid. 
9 Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights , Constitution of the 
Panel Established at the Request of Qatar, Note by the Secretariat, WT/DS567/4 (19 February 2019), para. 2 
(emphasis added).  WT/DS567/R/Add.1  
 
- 31 - 
 
  inter alia, the ability of Qatari nationals to protect intellectual property 
rights in Saudi Arabia.10 
13. Although the complaining Party 's characterization of the measures is not accurate, the 
complaining Party emphasiz ed that its companies had been "severely impacted by these measures ", 
11 and refers to the comprehensive "measures " as the basis for Saudi Arabia to apply additional, 
related measures identified by the complaining Party that allegedly impact the protection  of 
intellectual property.  
14. Notwithstanding the complaining Party 's current focus on alleged acts and omissions based 
on additional related measures challenged as allegedly taken pursuant to and in connection with the 
comprehensive "measures " taken by Saudi  Arabia, the complaining Party cannot deny Saudi Arabia 
the opportunity to raise defenses, especially based on Security Exceptions , with reference to a 
measure  affirmatively included in the Panel 's terms of reference.  Even though Saudi Arabia 's 
characteri zation of the measure 's nature, scope, and application ( i.e., not related to intellectual 
property proportion) may not match the characterization by the complaining Party ( i.e., severely 
impacting the protection of its companies ' intellectual property), th e extension to and coverage of 
the very same comprehensive measures  within the Panel 's terms of reference has been asserted by 
the complaining Party since at least 19 November 2018 and cannot be disputed at this stage of the 
proceedings.  
15. Second, consistent  with the structure and meaning of Article 73 of the TRIPS Agreement, 
there is no requirement that actions necessary to protect essential security interests must match 
the substantive claims raised by the complainant.  Although a complaining party must mak e claims 
concerning the "matter " referred to the DSB, this does not limit a panel 's consideration of relevant 
defenses or arguments raised by a respondent, or a panel 's competence to determine the actual 
subject matter of the dispute based on the arguments  of both of the Parties.12 
16. In any case, when a respondent Member raises a defense based on a measure that it has 
taken, especially based on Security Exceptions  under Article 73, to protect its essential security 
interests, the panel must consider the argum ents raised by the respondent, consistent with its Terms 
of Reference.  The complainant in a WTO dispute cannot limit in any way the measures referenced 
or arguments made by the Member invoking Security Exceptions . 
17. A panel should acknowledge that in the co ntext of Security Exceptions , a bona fide  emergency 
in international relations "involves a fundamental change in circumstances which radically alters the 
factual matrix in which the WTO -consistency of measures is to be considered. "13  Based on this 
"fundam ental change in circumstances ", the Panel here should recognize that, due to the political 
and security matters and stark differences at issue, measures referenced as the basis for Security 
Exceptions  may not always directly match the measures identified by the complaining party in a 
WTO dispute.  
 
10 Saudi Arabia  – Measures Concerning the Protection of Intellectual Property Rights , Request for the 
Establishment of a Panel by Qatar, WT/DS567/3 (19 November 2018), para. 6 (emphasis added).  
11 Ibid, para. 7 (emphasis added).  
12 The Rules of Court of the International C ourt of Justice (ICJ), similar to the DSU,  
require an applicant to indicate the 'subject of the dispute ' in the application. The application shall also 
specify the "precise nature of the claim " (Art. 38, para. 2, of the Rules of Court; Fisheries Jurisdict ion (Spain v. 
Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998 , p. 448, para. 29).  
Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection Judgment of 
24 September 2015, para 25.  The ICJ has ruled tha t  
[i]t is for the Court itself, however, to determine on an objective basis the subject -matter of the dispute 
between the parties, that is, to "isolate the real issue in the case and to identify the object of the claim " 
(Nuclear Tests (Australia v. France ), Judgment, I.C.J. Reports 1974, p. 262, para. 29 ; Nuclear Tests (New 
Zealand v. France), Judgment, I.C.J. Reports 1974 , p. 466, para. 30).  
Ibid, para. 26.  The same inherent competence, together with the requirement to make an "objective 
assessment " of the matter under Article 11 of the DSU, requires that the Panel here "isolate the real issue in 
the case ", and consider whether the "real issue " is limited to specific claims of intellectual property violation, 
or, as Saudi Arabia insists, relates to the comprehensive measures themselves, and not to intellectual property 
at all.  
13 Panel Report, Russia – Measures Concerning Traffic in Transit , WT/D S512/R and Add.1, adopted 26 
April 2019, , ( "Russia  – Traffic in Transit "), para. 7.108.  WT/DS567/R/Add.1  
 
- 32 - 
 
  18. Finally, an affirmative defense based on a non -trade measure that a Member considers 
necessary to protect its essential security interests requires no predica te violation of substantive 
WTO rules.  The original intent behind the Security Exceptions  was not focused on justifications for 
substantive violations, but rather on a "non-violation " approach, based on the understanding that 
non-trade, political or secur ity actions falling under the agreed Security Exceptions  should not be 
subject to dispute settlement provisions.14  In this connection, Saudi Arabia notes that Article 64 of 
the TRIPS Agreement on Dispute Settlement  establishes a direct reference to Articl e XXIII of the 
GATT (1994), under which "non-violation " claims can be brought, obviously without establishing a 
"violation " of substantive provisions of the TRIPS Agreement.  
2.2. Limited Jurisdiction to Assess Essential Security Interests  
19. Saudi Arabia 's invocation of Article 73 of the TRIPS Agreement justifies our refusal to engage 
with the complaining Party at all , including with its claims, in this WTO dispute settlement 
proceeding.  As Saudi Arabia has stressed throughout these proceedings, our refusal to engage with 
the complaining Party at all, including engaging with its claims in this dispute, is based on our 
sovereign determination that any such engagement would undermine our essential security 
interests.   This is the very essence of severing diplo matic and consular relations, and this is why 
we emphasized in paragraph 2 of our First Written Submission that "[t]he severance of relations 
between the two countries and the publicly -stated reasons for the measures of Saudi Arabia 
constitute the only rel evant facts in this dispute. " 
20. Article 73 of the TRIPS Agreement is very clear that  
Nothing  in this Agreement shall be construed…  
(b) to prevent a Member from taking any action  which it 
considers  necessary  for the protection of its essential 
security interests [.] (Emphasis added.)  
21. Based on the explicit text of Article 73, t he Panel may not construe any aspect of the 
TRIPS Agreement to prevent a Member from taking any action that it considers necessary 
for t he protection of its essential security interests in time of an emergency in 
international relations.  
22. Therefore, the Panel is prevented from making findings on any of the measures and claims as 
raised by the complaining Party because that would necessarily include direct engagement by Saudi 
Arabia, and the TRIPS Agreement cannot be construed to require thi s result in light of our invocation 
of the Security Exceptions .  
23. Rather, the Panel must limit its determination to whether an emergency in international 
relations exists and whether Saudi Arabia invoked the Security Exceptions in good faith.  
24. The evidence t hat Saudi Arabia has placed on the record before the Panel in good faith 
establishes the existence of an emergency in international relations and that Saudi Arabia has 
invoked the Security Exceptions in good faith.  Therefore, the Panel should not make any  other 
finding in this dispute.  
2.3. Impossibility of Satisfactory Settlement  
25. Article  3.7 of the Dispute Settlement Understanding ( "DSU") requires that "[b]efore bringing 
a case, a Member shall exercise its judgement as to whether action under these proced ures would 
be fruitful. " Given the comprehensiveness of the diplomatic and economic measures imposed not 
just by Saudi Arabia but also by other WTO Members in the region, and the underlying rationale for 
 
14 Third Party Oral Statement of the United States of America, Saudi Arabia – Measures Concerning the 
Protection of Intellectual Property Rights  (DS567), paras. 12 to 1 6; Third Party Submission of the United States 
of America, Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights  (DS567), para. 
27. WT/DS567/R/Add.1  
 
- 33 - 
 
  those measures, it is clear that the complaining Mem ber has not exercised sound judgement in 
taking action under the DSU.  
26. The function of a panel under Article 11 of the DSU is to "assist the [Dispute Settlement Body " 
("DSB")] in making the recommendations or in giving the rulings provided for in the cover ed 
agreements. "  Article 3.4 in turn requires that, "[r]ecommendations or rulings made by the DSB 
shall be aimed at achieving a satisfactory settlement of the matter. "  Article 3.7 also provides that 
"[t]he aim of the dispute settlement mechanism is to sec ure a positive solution to a dispute. "  WTO 
dispute settlement thus has a limited and specific purpose: to help settle trade disputes.  A panel is 
required to make findings and recommendations only where the findings help resolve a dispute.  
Indeed, panels  are encouraged to exercise judicial economy in respect of issues that are not 
necessary for such settlement.  
27. In the same vein, where the facts of a case are such that no findings or recommendations by 
a panel are capable of resolving, or even contributin g to the settlement of a dispute, the panel should 
exercise considerable discretion before proceeding further.  This dispute is such a case. Saudi Arabia 
has severed all diplomatic and economic ties with the complaining Member in a transparent manner, 
and it has done so in cooperation with other Members in the region.  This case does not concern 
whether the WTO or some other forum is more appropriate for the settlement of a trade dispute.  
Rather, the only relevant issue is that this is not a trade dispute at all.  
28. In light of the severity of the emergency arising from the complaining Member 's actions and 
the resulting comprehensive severance of all diplomatic and economic relations between Saudi 
Arabia and the complaining Member, no finding or recommendatio n by the Panel, and no 
recommendation and ruling by the DSB, can be made that could secure a positive solution or achieve 
a satisfactory settlement in this matter.  Therefore, no finding or recommendation should be made, 
and the Panel should refrain from p roceeding further with this case in order to avoid further harm 
to the integrity of the WTO dispute settlement mechanism.  
3. Saudi Arabia 's Bona Fide  Invocation of the Security Exceptions   
29. To the extent the Panel decides that has jurisdiction to consider this dispute, it should 
recognize that Saudi Arabia has demonstrated that, under the facts and circumstances of its 
invocation of Security Exceptions,  it has satisfied that the conditions fo r invoking Article 73 of the 
TRIPS Agreement.15 
3.1. The Emergency in International Relations  
30. Saudi Arabia considers that an "emergency in international relations " should be understood to 
mean "a situation of armed conflict, or of latent armed conflict, or  of heightened tension or crisis, or 
of general instability engulfing or surrounding a state. "16  Members may have differing perceptions 
of what constitutes an emergency in international relations, so deference must be accorded to each 
Member 's characteriz ation of situations as "emergencies ".17  Finally, Saudi Arabia notes the temporal 
relation that should exist between qualifying emergencies and related "actions " necessary to protect 
essential security interests.   
31. Saudi Arabia has established the existence of an emergency in international rela tions arising 
from the complaining Party 's support for terrorism and extremism.  In  particular, the complaining 
Party, as a signatory to the Riyadh Agreements and the Mechanism Implementing the Riyadh 
Agreements (known as the "Implementing Mechanism "), agr eed that the Riyadh Agreements were 
 
15 KSA Opening Statement, First Panel Meeting;  KSA Second Written Submission, paras 31 -73. 
16 Ibid, paras. 7.76 and 7.111.  
17 See Russia – Transit , para. 7.76 ( "Such situations give rise to particular types of interests for the 
Member in question, i.e. defence or military interests, or maintenance of law and public order interests. " 
(Footnote omitted.) ); European Union 's Third Party Integrated Executive Summary, Saudi Arabia – Measures 
Concerning the Protection of Intellectual Property Rights  (DS567), para. 18 (While the party invoking Security 
Exceptions  "should also provide sufficient explanations and  evidence of the causes that motivated the 
severance of diplomatic relations. This does not imply a high evidentiary threshold. ") and para. 29 ( "Such 
situations give rise to particular types of interests for the Member in question, i.e. defence or military  interests, 
or maintenance of law and public order interests. "); Third Party Submission of the United Arab Emirates, Saudi 
Arabia – Measures Concerning the Protection of Intellectual Property Rights  (DS567), para. 9.  WT/DS567/R/Add.1  
 
- 34 - 
 
  the basis for maintaining "security and stability of the GCC Countries " against terrorism and 
extremism affecting their internal and external political and security issues.18 
32. The complaining Party 's renunciation of the R iyadh Agreements and continuing, unabated 
support for terrorism and extremism created the current emergency in international relations,19 
which has persisted since June 2017 and has deepened based on recent developments.  
33. The complaining Party has created a n emergency in international relations by failing to abide 
by its international agreements to cease support for terrorism and extremism. Saudi Arabia considers 
that the only effective measure to address the emergency is the severance of all diplomatic and 
consular relations with the complaining Party.20 
34. In order to find a solution to a profound, regional crisis arising from the complaining Party 's 
support for terrorism and extremism, Saudi Arabia engaged in years of active diplomacy at the 
highest national levels as follows:  
• In November 2013, Bahrain, Kuwait, Qatar, Saudi Arabia, and the UAE signed the "First 
Riyadh Agreement ", which established a collective understanding of the causes for, and 
solutions to, instability and violence in the region,  and included a collective commitment to 
oppose terrorism and extremism.21  
• On 5 March 2014, due to Qatar 's violations of the First Riyadh Agreement, and following the 
failure high -level diplomatic efforts to re -confirm the seriousness of the matter, Sau di Arabia, 
along with Bahrain and the UAE, recalled their Ambassadors from Qatar.22 
• On 17 April 2014, following high -level, intensive diplomatic efforts to resolve the political 
dispute, all six countries of GCC, including Qatar, signed the Mechanism Imp lementing the 
Riyadh Agreements which identified the agreed "threats " to "security and stability " of GCC 
Countries, reaffirmed the obligations undertaken in the First Riyadh Agreement, and 
established specific procedures to ensure compliance with commitmen ts already undertaken 
with regard to issues covered by the Riyadh Agreements.23 
• In November 2014, based on Qatar 's undertakings in the Supplementary Riyadh Agreement, 
Saudi Arabia, Bahrain, and the UAE returned their ambassadors to Qatar.24 
• Between Nov ember of 2014 and June of 2017, Qatar continued to violate the explicitly 
agreed terms of the Riyadh Agreements by:  
o Supporting and harboring extremist individuals and organizations, many of whom had 
been designated as terrorists by the United Nations and  by individual countries;  
o Supporting and allowing terrorist and extremist groups to use Qatar -based and Qatar -
sponsored media platforms to spread their messages;  and  
o Engaging in activities that threatened the security and stability of GCC Countries a s 
detailed in reports by intelligence chiefs, including as mandated under the Riyadh 
Agreements, the details of which will not be presented in the context of this WTO 
dispute.25 
 
18 KSA Second Written Submission,  para. 15; see also  KSA Opening Statement, First Panel Meeting, 
para. 28.  
19 Ibid, para. 45.  
20 First Written Submission of the Kingdom of Saudi Arabia ( "KSA First Written Submission "), paras. 1, 2 
and 7; KSA Opening Statement, First Panel Meeting, para. 6.  
21 KSA, First Written Submission, para. 26. 
22 Ibid, para. 27.  
23 Ibid, para. 28.  
24 Ibid, para. 32.  
25 Ibid, para. 33.  WT/DS567/R/Add.1  
 
- 35 - 
 
  • On 19 February 2017, Qatar requested the termination of the Riyadh Agreement s.26 
• Between 19 February and 5 June 2017, Qatar continued to act against Saudi Arabia 's 
essential security interests, in violation of the explicit terms of the Riyadh Agreements.27 
• On 5 June 2017, the Kingdom of Saudi Arabia severed diplomatic and consular relations with 
the complaining Party.28 
35. Given that the complaining Party signed the Riyadh Agreements, Saudi Arabia had good 
reason to believe that the agreed solution would be implemented, but instead the complaining Party 's 
reques t to terminate that framework gave rise to an emergency in international relations, during 
which Saudi Arabia took action to sever diplomatic and consular relations with the complaining Party.  
36. In addition to confirming its unwillingness to abide by the ter ms of the Riyadh Agreements, 
the complaining Party continues to violate the explicitly agreed terms of the Riyadh Agreements by 
engaging in the following acts:  
• Financial support for instability, extremism, and terrorism;  
• Harboring and allowing operatio ns by extremists and terrorists;  
• Supporting interference in other countries ' internal affairs; and  
• Disseminating propaganda in support of extremism and terrorism.29 
37. The increased material risk of these existential threats to peace and stability causes  an 
emergency  in international relations to which Saudi Arabia and other countries in the region reacted 
based on their sovereign responsibility to protect their people, territories, and governments from 
such existential dangers.   
3.2. Saudi Arabia 's Essential Security Interests  
38. An "essential security interest " should be understood to mean an interest "relating to the 
quintessential functions of the state, namely, the protection of its territory and its population from 
external threats, and the mainten ance of law and public order internally. "30  If a panel were to 
construe a provision of the TRIPS Agreement to require a Member to take action that it considered 
to subvert its essential security interests, this would violate the text of Article 73, and wo uld not be 
acceptable.31 
 
26 Ibid, para. 34.  
27 Ibid, para. 35.  
28 Ibid, para. 1.  
29 Ibid, para 44.  
30 Russia – Transit , para. 7.130.  
31 Russia – Transit , para. 7.131 ( "The specific interests that are considered directly relevant to the 
protection of a state from such external or internal threats will depend on the particular situation and 
perceptions of the state in question, and can be expected to vary with changing circums tances. For these 
reasons, it is left, in general, to every Member to define what it considers to be its essential security 
interests. ") and para. 132 ( "However, this does not mean that a Member is free to elevate any concern to that 
of an 'essential secur ity interest '. Rather, the discretion of a Member to designate particular concerns as 
'essential security interests ' is limited by its obligation to interpret and apply Article XXI(b)(iii) of the GATT 
1994 in good faith. "); Third Party Executive Summary of Australia, Saudi Arabia – Measures Concerning the 
Protection of Intellectual Property Rights  (DS567), para. 8 ( "Australia agrees with the panel 's finding in Russia 
– Traffic in Transit that it is for every Member to define for itself what it considers its essential security 
interests. "); Executive Summary of Brazil, Saudi Arabia – Measures Concerning the Protection of Intellectual 
Property Rights  (DS567), para. 14 ( "It stands out that the language of Article 73 – 'which it considers ' – 
confers a great deal of discretion regarding the necessity of the measure. "); European Union 's Third Party 
Integrated Executive Summary,  Saudi Arabia – Measures Concerning the Protection of Intellectual Property 
Rights  (DS567) ( "EU Executive Summary "), paras. 31 ( "The terms "its essential security interests " should be 
interpreted in such a way as to allow Members to identify their own secu rity interests and the desired level of 
protection without having the Panel second -guess the value judgment as to the legitimacy of the interest. "); 
Third Party Executive Summary of the United States of America, Saudi Arabia – Measures Concerning the 
Protection of Intellectual Property Rights  (DS567), para. 12 ( "Accordingly Article 73(b)(iii) reflects a Member 's WT/DS567/R/Add.1  
 
- 36 - 
 
  39. Saudi Arabia defines its relevant "essential security interest " in carrying out its central 
sovereign duty of protecting Saudi citizens and population, government institutions, and territory 
from the threats of terrorism and extrem ism,32 which have led to war, instability, and general unrest 
in our region.  
3.3. Measures that Saudi Arabia Considers Necessary to Protect its Essential 
Security Interests  
40. An "essential security interest " should be understood to mean an interest "relating  to the 
quintessential functions of the state, namely, the protection of its territory and its population from 
external threats, and the maintenance of law and public order internally. "33  If a panel were to 
construe a provision of the TRIPS Agreement to r equire a Member to take action that it considered 
to subvert its essential security interests, this would also be inconsistent with the broad agreement 
in interpretation that a panel may not review the "necessity " of measures taken by Members to 
protect th eir self -defined, bona fide  essential security interests during an emergency in international 
relations.34 
41. The deference that a panel should accord to Members' determination of the necessity 
to take actions to protect their essential security interests during emergencies in 
international relations is limited only by the application of the principle of good faith.35  
Saudi Arabia recalls that the obligation of good faith is a general principle of law as well as a principle 
of general internation al law that applies to all WTO treaty commitments.  As recognized in WTO 
jurisprudence,36 the obligation of good faith is codified under the Vienna Convention on the Law of 
Treaties, in Article 31(1):  "[a] treaty shall be interpreted in good faith … "; and in Article 26: "[e]very 
treaty … must be performed [by the parties] in good faith "37.  Therefore, the obligation of good faith 
applies to Members ' application of Security Exceptions . 
42. In light of the complaining Party 's decisions and actions, and the developments described 
above prior to June 2017, and following Saudi Arabia 's further consideration and consultation with 
other friendly countries in our region regarding the remaining viable options to protect our essential 
security interests in view of t he complaining Party 's failure to abide by its commitments under the 
Riyadh Agreements, Saudi Arabia determined that severing all diplomatic and consular relations was 
the only way to protect effectively its essential security interests.  
43. In Saudi Arabia 's 5 June 2017 announcement of the severance of diplomatic and consular 
relations with the complaining Party, it publicly articulated the rationale behind the measures as 
follows:  
the Government of the Kingdom of Saudi Arabia emanating from 
exercising its sov ereign rights guaranteed by [] international law and 
protecting its national security from the dangers of terrorism and 
extremism has decided to sever diplomatic and consular relations with 
 
right to take action it considers necessary for the protection of its essential security interests when that action 
is taken in time of war or othe r emergency in international relations. "). 
32 Ibid, paras. 21, 39.  
33 Russia – Transit , para. 7.130.  
34 See note 30 supra.  
35 See Russia – Transit , para. 7.132, stating that "discretion of a Member to designate particular 
concerns as "essential security intere sts" is limited by its obligation to interpret and apply Article XXI(b)(iii) of 
the GATT 1994 in good faith. " 
36 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, 
WT/DS58/AB/R, adopted 6 November 1998, ( "US – Shrimp "), para. 158; Appellate Body Report, United States 
– Tax Treatment for "Foreign Sales Corporations ", WT/DS108/AB/R, adopted 20 March 2000 ( "US – FSC"), 
para. 166; Appellate Body Report, United States – Transitional Safeguard Measure on Combed Cotton Yarn 
from Pakistan, WT/DS192/AB/R, adopted 5 November 2001 ( "US – Cotton Yarn "), para. 81; and Appellate 
Body Report, United States – Anti-Dumping Measures on Certain Hot -Rolled Steel Products from Japan, 
WT/DS184/AB/R, adopted 23 August 2001 ( "US – Hot-Rolled Steel "), para. 101.  
37 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty 
Series, vol. 1155.  WT/DS567/R/Add.1  
 
- 37 - 
 
  the State of Qatar, close all land, sea and air ports, prevent cro ssing 
into Saudi territories, airspace and territorial waters.38 
44. Saudi Arabia has severed diplomatic and consular relations in order to avoid contact with the 
complaining Party in order to protect its essential security interests from terrorism and extremi sm.  
As Saudi Arabia has made clear again above, we consider avoiding state -to-state interactions under 
the extremely politicized circumstances of these WTO dispute settlement procedures as "necessary " 
to protect our essential security interests.  Saudi Ar abia considers that any interaction with the 
complaining party , including in WTO dispute settlement proceedings, will subvert our essential 
security interests.39 
3.4. Respect for the Obligation of Good Faith  
45. In applying the obligation of good faith to the Security Exceptions  under Article XXI of the 
General Agreement on Tariffs and Trade ( "GATT 1994 "), the panel in Russia – Transit  observed that  
[t]he obligation of good faith requires that Members not use the 
exceptions in Article XXI as a means to circumv ent their obligations 
under the GATT 1994. A glaring example of this would be where a 
Member sought to release itself from the structure of "reciprocal and 
mutually advantageous arrangements " that constitutes the multilateral 
trading system simply by re -labelling trade interests that it had agreed 
to protect and promote within the system, as "essential security 
interests ", falling outside the reach of that system.40 
46. While a panel must defer to Members ' characterization of situations as emergencies in 
intern ational relations, and to Members ' determination of their own essential security interests and 
of the necessity of actions to protect such interests, a panel must limit its review to whether the 
Member invoking Security Exceptions  is acting in good faith, as noted above.  In order to assess 
compliance with the good faith obligation, a panel could assess whether the Member has re -labelled 
trade interests as essential security interests in order to avoid its trade obligations,41 and could also 
consider the re lationship between the measures and the essential security interests at issue, if it 
considers that these tests would support its assessment of the bona fide  invocation of Security 
Exceptions . 
47. Saudi Arabia has established in submissions to the Panel that n o credible basis exists to find 
that Saudi Arabia took its comprehensive actions on 5 June 2017 for any other reason than because 
they are necessary to protect its essential security interests.42 Saudi Arabia 's comprehensive 
measures were a direct response  to and remain strictly related to the emergency in international 
relations that was created by the actions of the complaining Party. Therefore, Saudi Arabia cannot 
be considered to have "re-labelled " its trade interests as essential security interests in order to avoid 
its trade obligations.  In fact, the opposite is the case here: the complaining Party has "re-labelled " 
a dispute about essential security interests as a "trade " dispute.  
48. In the course of these proceedings, the Panel "invite[d] Saudi Arabia to provide the 
information that it considers relevant to the Panel 's assessment of Saudi Arabia 's good faith conduct 
in connection with the invocation  of the security exception in Articl e 73."43  Saudi Arabia has provided 
to the Panel information responsive to the issues that it considered relevant to the Panel 's 
assessment of our good faith conduct in connection with the invocation of the Security Exceptions  
in Article 73.  Saudi Arabia provided the requested information in the framework of the six issues 
below that the Panel identified in Question 30 of the Post-Hearing Questions to the Parties Following 
the First Substantive Meeting of the Panel, as follows:  
 
38 KSA First Written Submission, para. 1 and Exhibit SAU -1. 
39 Ibid, para. 37.  
40 Russia – Transit , para. 7.133 (footnote omitted).  
41 Russia – Transit , para. 7.133.  
42 See, e.g. , KSA Opening Statement, First Panel Meeting, para. 49.  
43 See Panel 's Post -Hearing Questions to the Parties Following the First Substantive Meeting of the 
Parties, Question 29.  WT/DS567/R/Add.1  
 
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  (a) Please elaborate further  on whether Saudi Arabia is asserting that 
any of the following alleged acts or omissions are "action which it 
considers necessary for the protection of its essential security 
interests " for purposes of Article 73 of the TRIPS Agreement:  
49. Before addressing the information provided in good faith by Saudi Arabia concerning the six 
alleged acts or omissions identified by the Panel, Saudi Arabia would like to re -confirm that, with 
the possible exception of certain travel restrictions, no action  taken in June 2017 as part of the 
measures against the complaining Party was an "action which [Saudi Arabia] consider[ed] necessary 
for the protection of its essential security interests " for purposes of Article 73 of the 
TRIPS  Agreement " in relation to i ntellectual property rights.44 
50. As noted above, the relevant company of the complaining Party faced legal actions in Saudi 
Arabia before 2017 due to violations of Saudi competition law and its failure to satisfy Saudi Arabia 's 
laws and regulations regarding  broadcasting.45  In connection with these legal actions, the relevant 
company 's temporary license lapsed due to legal issues arising before and wholly unrelated to the 
comprehensive measures applied by Saudi Arabia on 5 June 2017.46 
51. Notwithstanding the ab sence of the relevant company of the complaining Party from the Saudi 
market, third parties ' interests will always be protected directly in Saudi Arabia by entities not found 
to have illegally distributed digital content, including original owners of copyr ight.47  Alternatively, 
non-discriminatory distribution methods have been adopted to protect the interests of copyright 
owners, consistent with WTO rules.48 
(1)  the 19 June 2017 Circular (stating that distribution of beIN 
content would lead to penalties and fine s and the loss of legal 
right to protect related IP rights)  
52. Saudi Arabia would like to confirm that the heading above, as originally presented by the 
complaining Party, does not accurately reflect the text of the Circular.  In no way does the Circular 
state that the legal distribution of content would lead to penalties and fines and the loss of the legal 
right to protect related IP rights.  In response to the Panel 's invitation to provide information 
regarding Saudi Arabia 's good faith conduct, we provided to the Panel a detailed description of the 
relevant Saudi legal regime, as follows:  
53. First, the Circular represents an accurate description of Saudi law, as explained further below, 
and as stated by Saudi Arabia in response to the Panel 's previous questioni ng as follows:  
 Broadcasting Licensing Requirements  
28. Saudi Arabia welcomes the legal distribution in the Kingdom of 
copyright -protected broadcasts in accordance with Saudi law.  In order 
to be licensed as a broadcaster, certain objective criteria must b e 
satisfied specific to the broadcasting business, and then generally 
applicable Saudi law must be observed, including copyright law, 
publications law, competition law, criminal law, etc.  Broadcasting 
approval requirements are set out in the regulations o f the General 
Commission for Audiovisual Media.11  A broadcasting license may not 
be renewed or can be cancelled if its holder does not comply with 
broadcasting laws and regulations or with any other general Saudi law.  
29. There is no specific "applicable law" that penalizes an unlicensed entity 
with the loss of the legal right to protect any related intellectual 
property rights.  However, for the sake of clarity and to remove any 
 
44 Responses of the Kingdom of Saudi Arabia to the Panel 's Post -Hearing Questions to the Parties 
Following the First Substantive Meeting of the Parties, sent on 12 July 2019, dated 26 July 2019 ( "KSA 26 July 
Responses "), para. 75.  
45 Ibid, para. 28.  
46 Ibid, para. 51; KSA S econd Written Submission, para. 51.  
47 Ibid, paras. 48 -49. 
48 Ibid, paras. 37 -38. WT/DS567/R/Add.1  
 
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  doubt, Saudi Arabia confirms that any such loss of the legal right to 
protect  any related intellectual property rights would need to be limited 
to the relevant entity 's own original content contained in its 
programming, and would not apply to content contained in its 
programming [licensed] to it by third parties, which can always b e 
protected from illegal broadcasting by third party owners.12 
_______  
11 A summary of GCAM 's relevant regulations for broadcasters is 
attached at Exhibit SAU -19. 
12 See Exhibit SAU -21.49 
54. Second , the Circular was informative in nature only and did not change the status of or revoke 
the legal rights of any entity.  In June 2017, the relevant company of the complaining Party was not 
licensed and did not have the right to operate in Saudi Arabia. This has been the case since December 
of 2016, when the temp orary license of the relevant company of the complaining Party lapsed due 
to the relevant company 's failure to comply with the generally applicable licensing conditions set out 
in a letter from the General Commission for Audiovisual Media ( "GCAM ") dated 13  November 2016.50  
In addition, the relevant company of the complaining Party does not have the right to operate in 
Saudi Arabia due to its failure to comply with competition law of Saudi Arabia, as established on the 
record before the Panel.51 
55. Third, as set out above in p aragraph 29 of the Responses of the Kingdom of Saudi Arabia to 
the Panel 's Post -Hearing Questions to the Parties Following the First Substantive Meeting of the 
Parties, unlicensed distributors of illegally distributed content do not have a right to protect  copyright 
in such illegally distributed content.  However, third party content owners or other entities that 
have not been found to have engaged in illegal distribution never lose their right to protect 
and enforce their legal rights in Saudi Arabia.  Therefore, Saudi law as such and as applied is 
fully consistent with the TRIPS Agreement.52 
56. Fourth , although Saudi authorities are keenly aware of efforts by unlicensed distributors to 
distribute digital content in Saudi Arabia, no evidence has been establish ed to take action against 
such illegal distribution.  Saudi Arabia described the situation in responses to the Panel 's questions 
as follows:  
 Rights to Protect Intellectual Property  
47. Saudi Arabia is aware that entities have been distributing 
unlicensed media content in Saudi Arabia after 19 June 2017.  
However, no credible evidence exists to link such distribution to the 
wilful conduct of companies of the complaining Party or related 
entities.  Therefore, no entity has lost the legal right to protect any  
related IP rights in Saudi Arabia.  beoutQ has not been licensed by 
Saudi authorities, so it has no right to protect its own copyright 
content distributed in Saudi Arabia.53 
57. Therefore, based on the description above, Saudi law as applied in this situation  is fully 
consistent with the TRIPS Agreement.  Saudi Arabia hereby confirms to the Panel once again that 
no entity has lost the legal right to protect any related IP rights in Saudi Arabia.  
58. Saudi Arabia would like to confirm once again on the record befor e the Panel that it affords 
copyright protection to all entities even if they are not licensed to broadcast in Saudi Arabia, with 
 
49 KSA 26 July Responses.  
50 See Exhibit SAU -29. 
51 KSA 26 July Responses, para. 51.  
52 See also , KSA Second Written Submission, para. 54.  
53 KSA 26 July Responses (footnote omitted).  WT/DS567/R/Add.1  
 
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  the exception of entities found to have distributed content illegally ( i.e., without a broadcasting 
license) in Saudi Arabia.  
59. In response to the request made by the Panel during its Second Substantive meeting, 
Saudi  Arabia recalls for the record its Oral Statement at the Second Substantive Meeting that:  
• "In order to be licensed as a broadcaster, certain objective criteria must be satisfied specific 
to the broadcasting business, and then generally applicable Saudi law must be observed…. "  
Therefore, broadcasting in Saudi Arabia without a license is illegal.  
• "A broadcasting license may not be renewed or can be cancelled if its h older does not comply 
with broadcasting laws and regulations or with any other general Saudi law. "  
• "[U]nlicensed distributors of illegally distributed content do not have a right to protect 
copyright in such illegally distributed content. "  
• "[A]ny suc h loss of the legal right to protect any related intellectual property rights would 
need to be limited to the relevant entity 's own original content contained in its programming, 
and would not apply to content contained in its programming [licensed] to it by third parties, 
which can always be protected from illegal broadcasting by third party owners. "  
• "[T]hird party content owners or other entities that have not been found to have engaged 
in illegal distribution never lose their right to protect and enfo rce their legal rights in 
Saudi  Arabia. "54 
60. Further to the Panel 's request at the Second Substantive Meeting, Saudi Arabia respectfully 
affirms regarding the relevant company of the complaining Party that:  
• "In June 2017, the relevant company of the complaining Party was not licensed and did not 
have the right to operate in Saudi Arabia. This has been the case since December of 2016, 
when the temporary license of the relevant company of the complaining Party lapsed due to 
the relevant company 's failur e to comply with the generally applicable licensing conditions 
set out in a letter from the General Commission for Audiovisual Media ( "GCAM ") dated 
13 November 2016. "  
• In addition, "the relevant company of the complaining Party does not have the right to  
operate in Saudi Arabia due to its failure to comply with competition law of Saudi Arabia, as 
established on the record before the Panel. "  
• Although "Saudi Arabia is aware that entities have been distributing unlicensed media 
content in Saudi Arabia after 19 June 2017 ", nevertheless, "no credible evidence exists to 
link such distribution to the wilful conduct of companies of the complaining Party or related 
entities. Therefore, no entity has lost the legal right to protect any related IP rights  in Saudi 
Arabia. "  
61. The above statement of facts and definitive interpretation of Saudi Arabia 's domestic law were 
officially endorsed by the head of the delegation of Saudi Arabia during the Second Substantive 
Meeting.55  In particular, Saudi Arabia confi rmed that  
the Kingdom of Saudi Arabia intends to be bound by the statements 
concerning its legal position as regards its domestic law as described in 
[Saudi Arabia 's] Oral Statement with respect to the 17 June 2017 
Circular.56 
 
54 Opening Statement of the Kingdom of Saudi Arabia at the Second Substantive Meeting of the Panel, 3 
October 2019, paras. 11, 13.  
55 See Exhibit SAU -41. 
56 Ibid. WT/DS567/R/Add.1  
 
- 41 - 
 
  62. Saudi Arabia submits that th e Panel should accept the above formal statement and definitive 
interpretation as a final clarification of existing Saudi law and practice and as a commitment to 
continue this regime.  
(2)  the anti -sympathy measures alleged taken by Saudi Arabia  
63. Saudi Ara bia has stated throughout the proceedings that it does not maintain any "anti-
sympathy measures " or any other measures that restrict access to attorneys in Saudi Arabia for 
assistance in intellectual property matters.57  The neutrality, impartiality, and i ndependence of the 
judiciary in Saudi Arabia are based on fundamental principles. Saudi Arabia 's systems are clear and 
strict regarding the independence of the judiciary, and the right to litigation is one of the fundamental 
rights guaranteed by the Basic Law of Governance in Saudi Arabia with respect to every right or 
interest.  
64. In any case, as discussed in this submission, companies may directly access remedies to 
copyright infringement in Saudi Arabia by providing information and evidence to the Saudi Aut hority 
for Intellectual Property (the "SAIP") or to the Government in support of criminal prosecution without 
retaining counsel or other local support in Saudi Arabia.  
65. In proceedings before the Saudi Board of Grievances the relevant company of the Complain ing 
Party has been represented by Saudi national counsel, as confirmed on page 2 of the Ruling of the 
Board of Grievances, of 4/11/1949H (30 December 2017G).58  In addition, relevant company of the 
complaining Party has signed Powers of Attorney for severa l Saudi national lawyers to represent its 
interests in a wide variety of legal and administrative proceedings in Saudi Arabia.59  We consider 
that it would be both logical and effective for other companies seeking counsel in Saudi  Arabia to 
retain counsel in the same manner.  In any case, there are thousands of lawyers registered to 
practice in Saudi Arabia.  Any entity seriously seeking to engage counsel in any country should look 
beyond the nine law firms allegedly approached by the relevant compa ny of the complaining Party 
in this case.  
66. Saudi Arabia has confirmed to the Panel that complaints may be filed directly and electronically 
with the SAIP by interested parties not present in Saudi Arabia and without the involvement of Saudi 
national counsel .  Upon receipt of a communication, including by email, SAIP 's IP Respect 
Department refers complaints to the Committee for the Examination of Violations of the Copyright 
Protection Law ( "Copyright Committee ") to take the appropriate decisions and where wa rranted to 
impose the penalties provided for in Article 22 of the Copyright Protection Law.60 
67. No case has been raised with SAIP by the relevant company of the complaining Party or related 
third party entities that allegedly own rights to content distribute d in Saudi Arabia.61  Over the past 
two years, SAIP has worked successfully with interested parties to resolve 353 cases, including cases 
of copyright infringement regarding broadcasting of sports content.62 
(3) the travel restrictions allegedly imposed by  Saudi Arabia  
68. As Saudi Arabia has confirmed in previous responses to the Panel, the actions that 
Saudi  Arabia took on 5 June 2017 to protect its essential security interests do affect "crossing into 
Saudi territories " by persons of the complaining Party. T herefore, to the extent the Panel finds the 
"travel restrictions " to be relevant to the intellectual property -related claims in this case, and to find 
violations related to this measure, Saudi Arabia would consider that they relate to the actions that 
Saudi Arabia took to protect its essential security interests. However, Saudi Arabia does not believe 
 
57 Ibid, paras. 48 -50 and 56.  
58 Responses of the Kingdom of Saudi Arabia to the Panel 's Post -Hearing Questions to the Parties 
Following the Second Substantive Meeting of the Parties, sent on 8 October 2019, dated 29 October 2019 
("KSA 29 October Responses "), para. 8.  
59 See examples of powers of attorney at Exhibit SAU -36. 
60 KSA 29 October Responses, para. 12. 
61 KSA 26 July Responses, para. 37.  
62 Ibid, para. 35.  WT/DS567/R/Add.1  
 
- 42 - 
 
  that travel restrictions relate to intellectual property and these restrictions not fall within the Panel 's 
terms of reference in this case.63 
69. Saudi Arabia re -confirms that, as of the date of the establishment of the Panel, the travel 
restrictions on citizens of the complaining Party referred to in the 5 June 2017 announcement still 
existed, but notes that certain exceptions apply as necessary, including for ci tizens of the 
complaining Party to perform the Hajj and Umrah.64 
(4)  the requirement for Ministerial approval of Copyright 
Committee decisions as allegedly applied to beIN  
70. Ministerial approval of Copyright Committee decisions is not provided for in Saudi Arabia.65 
71. Saudi Arabia 's Council of Ministers ' Resolution No. 536 in 2018 (19 \10\1439 H) amended the 
Saudi Copyright Law, including Article 25/2, replacing the Minister with the Board of Directors of the 
Saudi Authority for Intellectual Property. As a result, the Article currently reads: "Decisions of the 
Committee shall be made by majority vote, which shall be endorsed by the Board of Directors ".66 
72. Thus, the adoption of the decisions issued by the Committee must be approved by the Board 
of Directors of the Saudi Authority for Intellectual Property, and no longer involve Ministerial 
approval.  The Board is composed of a President and 15 members of both government and private 
sectors, further to Saudi Arabia 's Council of Ministers ' Resolutions No 410 in  2017 (28/06/1438 H) 
and 496 in 2018 (14/09/1439 H).67 
(5) Saudi Arabia 's alleged failure to apply criminal procedures 
and penalties against beoutQ  
73. The TRIPS Agreement does not require the application of criminal procedures and penalties 
under the instant circumstances.  First, intellectual property rights protected under WTO rules are 
"private rights " that generally require owners or "private " intere sted parties to assert their rights.  
Second, even in cases where the TRIPS Agreement generally provides for criminal procedures and 
penalties, Members are not required to apply these remedies in all cases.  Rather, Members should 
provide legal fora and pr ocedures to apply such remedies where warranted and where supported by 
evidence.  In particular, Members cannot be expected to act on criminal allegations without evidence 
and without cooperation of concerned rights holders.68 
74. As stated above, "Saudi Arabi a is aware that entities have been distributing unlicensed media 
content in Saudi Arabia after 19 June 2017. "69  There is indeed evidence of digital piracy in Saudi 
Arabia, as in most countries, and the existence of this evidence is not at issue in this di spute.  Exactly 
for this reason, Saudi Arabia has pursued a multi -prong enforcement approach, including public 
education,70 deterrence by monitoring the market, investigating compliance, and seizing hardware,71 
 
63 Ibid, para. 58.  
64 Ibid, para. 6.  
65 Ibid, paras. 26-27. 
66 See Copyright Law of Saudi Arabia (Exhibit SAU -32).  For reference to Council of Ministers ' Resolution 
No. 536 of 3 July 2018, and current Implementing Regulations of Saudi Arabia 's Copyright Law, see KSA 29 
October Responses, paras. 33 and 36, respectively, and Exhibits SAU -42 and SAU 45.  
67 For reference to Council of Ministers ' Resolution No. 496 of 29 May 2018, and current Implementing 
Regulations of Saudi Arabia 's Copyright Law, see KSA 29 October Responses, paras. 34 and 35, respectively, 
and Exhibits SAU -43 and SAU -44. 
68 See discussion in this section, infra; see also  EU Executive Summary, para. 6, stating that  
[t]he wording "to be applied " does not add an obligation to investigate and punish all cases of wilful 
trademark counterfeiting or copyright pira cy on a commercial scale. There are certain objective criteria which 
can justify if a WTO member does not investigate or prosecute in a given case (i.e. lack of evidence). In 
principle, the absence of initiation of investigations and the punishment of the alleged perpetrators alone 
cannot show a violation of Article 61.  
And see Third Party Executive Summary of Singapore, Saudi Arabia – Measures Concerning the 
Protection of Intellectual Property Rights  (DS567), para. 19 ( "Article 61 merely obliges Members to  criminalise 
wilful trademark counterfeiting or copyright piracy on a commercial scale, and to provide for the availability of 
criminal procedures and penalties in such cases. ") 
69 KSA 26 July Responses, para. 47.  
70 Ibid, para. 25.  
71 Ibid, para. 33.  WT/DS567/R/Add.1  
 
- 43 - 
 
  as well as encouraging content providers to e nsure that legal means of distribution are available.72  
Experts on digital copyright enforcement have emphasized that ensuring the availability of content 
through legal means is key to achieving compliance, together with public awareness campaigns and 
monitoring and enforcement activities in the market.  
75. Where concerned rights holders come forward with evidence and cooperate with the 
Government, Saudi Arabia effectively addresses copyright infringement. The SAIP is responsible for 
enforcement under the Copy right Law, including through a Committee for the Consideration of 
Copyright Infringements, which reviews all infringement cases raised by interested parties within 
Saudi Arabia and from abroad.  Over the past two years, SAIP has successfully resolved 353 c ases, 
including cases of copyright infringement regarding broadcasting of sports content.73 No case has 
been raised with SAIP by the relevant company of the complaining Party or related entities.74 
76. Saudi Arabia has repeatedly committed to continue its effo rts to identify the source and stop 
the copyright piracy of beoutQ, but requires cooperation from entities in the market to achieve 
compliance.  Thus far, Saudi Arabia regrets, no cooperation has been forthcoming; it has only heard 
allegations without rece iving supporting evidence concerning the operation of beoutQ.75 Saudi Arabia 
has informed the Panel that  
[v]arious Saudi Arabian Government agencies have received 
communications from original rights holders based outside of Saudi 
Arabia in the context of the alleged distribution rights in Saudi Arabia of 
the relevant company of the complaining Party.  These communications 
follow a pattern of relaying unfounded and unsupported allegations that 
beoutQ is distributing content in Saudi Arabia in violation of t heir 
copyright.  In the context of each such communication Saudi Arabia has 
asked each entity to provide information substantiating their 
allegations; no relevant and credible information has been provided by 
such companies to Saudi authorities in order to  support action against 
alleged infringing activity and companies .76 
77. Saudi Arabia is aware that government entities of the complaining Party, the relevant company 
of the complaining Party, and associated entities and consultants, are responsible for fundin g, 
orchestrating, and implementing lobbying campaigns, especially in the United States and Europe, to 
encourage companies, trade associations, and especially licensors of digital content to the relevant 
company of the complaining Party, to complain to thei r governments based on "allegations " that 
provide no basis at all for Saudi Arabia to take criminal enforcement action.  
78. Although several public statements have been made accusing Arabsat and the Government of 
Saudi Arabia of not doing enough to stop copyright piracy, Saudi Arabia notes that the complaining 
Party has joined with its instrumentality, the relevant company of t he Complaining Party, to conduct 
a global, public campaign against Saudi Arabia for geostrategic reasons based on unsubstantiated 
and fabricated allegations of Saudi Government complicity in copyright violations.   
79. In this disinformation campaign the Compl aining Party and its relevant company have enlisted 
the support of lobbyists and lawyers, as well as content owners that have received significant 
compensation for distribution rights.  The relevant company of the complaining Party has had some 
success at spinning its message by conditioning its continuing payments to content owners on their 
siding with the complaining Party against Saudi Arabia.77  Although these content owners, in order 
to continue their lucrative contracts, have been willing in public to  repeat groundless assertions 
against the Saudi Government regarding beoutQ 's piracy, nevertheless, they "do not take 'the extra 
 
72 Ibid, para. 37.  
73 Ibid, para. 35.  
74 Ibid. 
75 Ibid, para. 42.  
76 Ibid, para. 41 (emphasis added).  
77 According to reports, Tom Keaveny, beIN MENA Managing Director, admitted in a statement that "[a] 
rights holder 's stance on beoutQ 's piracy — in other words wh ether they 're taking legal action, making a public 
stand, and doing everything within their power to combat the industrial -scale theft of their rights — is a critical 
factor that we 're now considering when bidding ". Reuters,  A. Baldwin, Motor racing – Qatar's beIN says it is not 
renewing F1 deal , 8 February 2019 (Exhibit SAU -37). WT/DS567/R/Add.1  
 
- 44 - 
 
  step of directly accusing the Saudi Arabian government ' of supporting beoutQ ", as the complaining 
Party and its relevant compan y have done.78 
80. In addition, the public joint statement referenced in Panel question 39 is not consistent with 
communications received directly from individual entities by Arabsat.  For example, in response to 
a request from Saudi Arabia, Arabsat provided r ecent correspondence between FIFA and Arabsat in 
which Arabsat asks  
that FIFA kindly and promptly provide us with the written results of the 
"third party on -site testing. "  In the meantime, FIFA has provided no 
proof or other basis that beoutQ is using Ar absat frequencies to transmit 
pirate broadcasts.  As you know, we cannot act on unsupported factual 
allegations when similar accusations have in the past been proven 
false.79 
81. In response, FIFA stated as follows:  
Our various letters to Arabsat have been dra fted in the spirit of 
cooperation and we again reiterate that FIFA is simply requesting the 
support of Arabsat in addressing the unauthorised transmissions of 
beoutQ. FIFA is in no way implying that Arabsat is involved in, or 
complicit with, the illegal be outQ operation.  
… 
Unfortunately, due to reasons of legal privilege, FIFA is presently unable 
to provide you with a copy of the third party report upon which FIFA is 
relying  and which confirms that beoutQ 's broadcasts are made available 
by way of certain Arabsat satellite frequencies.80 
82. Based on the above, and in particular FIFA 's refusal to provide available information based on 
dubious "reasons of legal privilege ", "Saudi Arabia does not believe that unsubstantiated statements 
should be accorded weight in this dispute.  Moreover, FIFA 's confirmation that it "is in no way 
implying that Arabsat is involved in, or complicit with, the illegal beoutQ operation " directly 
undermines claims by the complaining Party that Saudi Arabia is involved in and com plicit with 
beoutQ operations.   
83. The same problem regarding unsubstantiated claims by the relevant company of the 
complaining Party has arisen in foreign court proceedings.  As noted in Saudi Arabia 's Second Written 
Submission to the Panel, the Tribunal de Grande Instance de Paris  rendered a summary judgment 
order against claims of the relevant company of the complaining Party that its content was 
distributed by beoutQ on Arabsat satellite frequencies.81  To the extent the Panel relies on the ruling 
of the T ribunal, it should review the actual ruling carefully, and not rely on misrepresentations made 
by the company of the complaining Party, which are described by the Tribunal , but not included in 
its ruling.  
84. The Government of the Kingdom of Saudi Arabia re -confirms formally before the 
Panel that it will continue to investigate and remains prepared to prosecute criminal 
violations of its intellectual property laws, consistent with the TRIPS Agreement and Saudi 
law, pending the production of credible informatio n on whom to prosecute and on what 
basis.  
85. Therefore, as described above, resolution of copyright issues can be sought either by providing 
relevant information and supporting evidence:  
 
78 Variety, Qatar 's beIN Rallies Support From U.S. Companies Against Pirate Broadcaster beoutQ, 15 
February 2019 (Exhibit SAU -38).   
79 Letter from Arabsat to FIFA, dated 24 June 2019 (Exhibit SAU -39). 
80 Letter from FIFA to Arabsat, dated 26 June 2019 (Exhibit SAU -40) (emphasis added).  
81 KSA Second Written Submission, para. 63.  WT/DS567/R/Add.1  
 
- 45 - 
 
  • to the SAIP for action through the Committee for the Consideration of Copyright 
Infringements; and/or  
• to the Saudi Government to consider action under Saudi criminal law and procedure, 
including investigation and prosecution where warranted based on evidence of criminal 
violations.  
86. Saudi Arabia regrets that no such inform ation, evidence, or cooperation has been forthcoming 
on the part of the relevant company of the complaining Party.  
(6)  Saudi Arabia 's alleged promotion of public gatherings with 
screenings of beoutQ 's unauthorized broadcasts.  
87. Once again, t he Government of Saudi Arabia has never promoted or authorized screenings of 
beoutQ broadcasts and has no relationship at all with beoutQ.  Saudi Arabia is aware of an allegation 
that an illegal broadcast by beoutQ was made in 2018.  Efforts to exaggerate the scope of such an 
illegal broadcast and to attribute it to the Government are unfounded, and must be rejected.82 
88. Saudi Arabia maintains a vigilant watch over the enforcement of broadcast copyright violations 
at public gatherings.  On 14 April 2019, the Saudi Ministry of Municipal and Rural Affairs issued 
Circular No 41898 which forwarded Royal Court Circular No 40752 to the Secretariats, the Agencies 
and the Public Administrations of the Ministry, including to all Saudi municipal administrations.  
Circular No. 41898 emphasized that the Royal Order must be followed and reminded all 
administrations "to provide the maximum possible protection of intellectual property rights ", 
including copyright protection.83 
4. Conclusion  
89. The real dispute underlying thi s case concerns only essential security interests, which are non -
trade interests that must be addressed following changes in behavior, and then only in the context 
of bilateral and regional political and diplomatic discussions.  
90. Geopolitical disputes of thi s kind cannot be resolved at the WTO and should not be brought to 
the WTO disguised as trade disputes.  As Saudi Arabia has suggested previously, the Panel has 
multiple means to end its work without addressing the substantive claims that have been raised i n 
this case, including by  
• recognizing that Security Exceptions  have been invoked;  
• confirming that Saudi Arabia 's actions are justified under Article 73 of the TRIPS 
Agreement;  
• referencing Article 3.4 of the DSU and the impossibility of issuing a rec ommendation 
or ruling "aimed at achieving a satisfactory settlement of the matter " or Article 3.7 
of the DSU and the impossibility of securing a positive solution to the dispute;84 
and/or  
• barring the claim because it has not been brought in good faith wi th the intention of 
addressing substantive WTO rules.  
91. Even if the Panel decides to review the substantive claims in this case, nothing in the 
TRIPS  Agreement can be construed by the Panel to prevent Saudi Arabia from protecting its essential 
 
82 Saudi Arabia notes that unofficial, non -government tweets should not be recognized by adjudicators 
or attributed to a government without explicit approval or formal attribution.  
83 Ministry of Municipal and Rural Affairs Circular No. 41898, 9/8/1440H / 14 April 2019G. (Exhibit SAU -
35.) 
84 See KSA First Submission, paras. 4, 9 -13; KSA Opening Statement, paras. 11 -12, KSA Closing 
Statement, paras. 3 -4. WT/DS567/R/Add.1  
 
- 46 - 
 
  security inter ests during the prevailing emergency in international relations because Saudi Arabia 
has satisfied the requirements of Article 73 of the TRIPS Agreement.  
92. In addition, the information that Saudi Arabia has provided to support the Panel 's "objective 
assessme nt"85 of our good faith conduct in connection with the invocation of the Security Exception  
in Article 73 establishes the absence of any substantive violation of the TRIPS Agreement in any 
case. 
93. Based on all of the statements above, and the supporting evidence provided on the record 
before the Panel, the Kingdom of Saudi Arabia respectfully requests that the Panel find that 
Saudi  Arabia has established that its invocation of the Security Exceptions  under Article 73 of the 
TRIPS Agreement is j ustified and that no additional findings be made in this dispute.  
 
_______________  
 
 
 
 
85 Panel Report, United States – Certain Measures Affecting Imports of Poultry from China, 
WT/DS392/R, adopted 25 October 2010 ( "U.S. – Poultry (C hina)"), paras. 7.445 -7.446.  WT/DS567/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Australia  48 
Annex  C-2 Integrated executive summary of the arguments of the Kingdom of Bahrain  51 
Annex  C-3 Integrated executive summary of the arguments of Brazil  53 
Annex C -4 Integrated executive summary of the arguments of Canada  57 
Annex C -5 Integrated executive summary of the arguments of China  60 
Annex C -6 Integrated executive summary of the arguments of the European  Union  62 
Annex C -7 Integrated executive summary of the arguments of Japan  67 
Annex C -8 Integrated executive summary of the arguments of Norway  71 
Annex C -9 Integrated executive summary of the arguments of the Russia n Federation  74 
Annex C -10 Integrated executive summary of the arguments of Singapore  76 
Annex C -11 Integrated executive summary of the arguments of Ukraine  80 
Annex C -12 Integrated executive summary of the arguments of the United Arab Emirates  83 
Annex C -13 Integrated executive summary of the arguments of the United  States  89 
 
 
 WT/DS567/R/Add.1  
 
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  ANNEX  C-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA  
I. INTRODUCTION  
1. As an exception to a Member's obligations, and in light of the sensitive interests that the 
provision seeks to accommodate, Australia submits that: Members have a responsibility to guard 
against undue use of the security exception; and each invocation of t he security exception must be 
considered carefully, in light of the particular facts of the dispute.  
II. JURISDICTION OF THE PANEL TO REVIEW  
2. In invoking the security exception under Article 73(b)(iii) of the TRIPS Agreement in its first 
written submiss ion, Saudi Arabia claims that the only relevant facts in this dispute are: (i) the 
severance of relations between Saudi Arabia and Qatar; and (ii) the publicly -stated reasons for the 
measures.1 Saudi Arabia argues that, in light of the absence of relation s between Saudi Arabia and 
Qatar, "the Panel should decline to proceed further in this dispute because a WTO dispute settlement 
panel is not capable of resolving the national security matter at issue".2 Furthermore, Saudi Arabia 
notes that, "the only rele vant issue is that this is not a trade dispute at all".3  
3. Similar to Norway and the European Union,4 Australia disagrees with Saudi Arabia's 
submissions to the extent that it suggests that the matters raised under Article 73(b)(iii) are non -
justiciabl e. In Australia's view, the panel in Russia – Traffic in Transit was correct to find that the 
invocation of the security exception was within the panel's terms of reference and, therefore, that 
the panel had jurisdiction to determine whether the security e xception requirements were met. In 
particular, the panel was of the view that it would be entirely contrary to the security and 
predictability of the multilateral trading system established by the WTO Agreements to subject the 
existence of a Member's WTO o bligations to a mere expression of the unilateral will of the invoking 
Member.5 
4. Australia notes that the Panel in this dispute was established with the standard terms of 
reference.6 Pursuant to Article 7.1 of the DSU,7 a panel has the jurisdiction to  examine, in light of 
the relevant provisions of the covered agreements cited by the parties to the dispute, the matter 
referred to it by the complainant.  
5. Furthermore, Article 7.2 of the DSU provides that panels "shall address the relevant provisions 
in any covered agreement or agreements cited by the parties to the dispute". The Appellate Body 
has confirmed that the use of the words "shall address" indicates that panels are in fact "required" 
to undertake this task.8 The Appellate Body has also clarif ied that, under the DSU, a panel "has no 
discretion to decline to exercise its jurisdiction in th[e] case that has been brought before it".9  
6. In Australia's view, Saudi Arabia's invocation of Article 73(b)(iii) as a complete defence to 
Qatar's claims o f violation places this provision squarely within the Panel's jurisdiction. Australia also 
considers that if the Panel were to decline to exercise its jurisdiction in this matter, this would deprive 
Qatar of its rights under Article 3.3 of the DSU to bring  a dispute in order to remedy the benefits it 
 
1 Saudi Arabia's First Written Submission, para. 2.  
2 Saudi Arabia's First Written Submission, para. 4.  
3 Saudi Arabia's First Written Submission, para. 11.  
4 See Norway's Third Party Written Submission, paras. 6 -14; European U nion's Third Party Written 
Submission, paras. 47 -48. 
5 Panel Report, Russia – Traffic in Transit , para. 7.79.  
6 WT/DS567/4.  
7 Understanding on Rules and Procedures Governing the Settlement of Disputes.  
8 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 49.  
9 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 57. See also Appellate Body Report, 
Canada – Aircraft , para 187; Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 89.  WT/DS567/R/Add.1  
 
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  considers Saudi Arabia's measures are impairing. Accordingly, Australia submits that the Panel 
cannot decline to exercise its jurisdiction to address the matters before it.  
III. SCOPE OF REVIEW  
7. Australia hig hlights the extraordinary and exceptional nature of the security exceptions in 
WTO agreements. The negotiating history of Article XXI of the GATT 1994 – the text of which is 
almost identical to Article 73 of the TRIPS Agreement – demonstrates the challenge  drafters faced 
in attempting to strike a delicate balance when dealing with issues of national security and 
sovereignty within the rules -based international trading system.10 In exercising its jurisdiction to 
review a Member's invocation of the security exception, the Panel must respect the sensitivity and 
significance of the matters this provision deals with. Part of the provision explicitly accords deference 
to Members, and this text must be given proper effect.  
8. To this end, Australia agrees with th e panel's finding in Russia – Traffic in Transit that it is for 
every Member to define for itself what it considers its essential security interests.11 Australia also 
agrees with that panel's finding that the specific terms "which it considers necessary" similarly 
empower a Member to decide for itself the "necessity" of its actions for the protection of those 
essential security interests.12  
9. In Australia's view, the explicit deference accorded to Members in the text of Article 73(b) 
indicates that a panel's role is not to make its own determination of what "it considers necessary". 
Rather, Australia submits that a panel's task in reviewing the  necessity aspect of the security 
exception is limited to determining whether the invoking Member  in fact  considered the action 
necessary (such as by having regard to the Member's statements and conduct).  
10. However, Australia observes that this deferenc e to a Member is not absolute; and does not 
preclude a panel from undertaking any review of a Member's invocation of the security exception. 
Specifically, the panel in Russia – Traffic in Transit  found that the obligation of good faith  applies to 
a Member' s definition of its essential security interests and, "most importantly", to the connection 
of such interests with the measure at issue.13 
11. That panel determined that a Member's general obligation to interpret and apply the security 
exception in good f aith means that panels may review: (i) whether there is any evidence to suggest 
that a Member's designation of its essential security interests is not made in good faith; and (ii) 
whether the challenged measures have a plausible link with the claimed essen tial security interests.14 
As observed by the panel, "the obligations of good faith requires that Members not use the [security 
exceptions]…as a means to circumvent their [WTO] obligations".15 
12. The panel also found that it was incumbent on the invokin g Member to "articulate the essential 
security interests sufficiently enough to demonstrate their veracity";16 and that what qualifies as a 
sufficient level of articulation will depend on the emergency at issue.17  
13. Australia observes that the invocat ion of Article 73(b) as an exception to a Member's 
obligations under the TRIPS Agreement is also explicitly limited by the text of the provision – and 
this text must also be given proper effect.  To this end, Australia submits that a panel must determine 
whether the relevant action was taken " for the protection of " the invoking Member's essential 
security interests. If there is not a "sufficient nexus"18 between the action taken and the Member's 
 
10 The negotiating history of Article XXI of the GATT 1994 discussed in Panel Report, Russia – Traffic in 
Transit , paras. 7.83 - 7.100.  
11 Panel Report, Russia – Traffic in Transit , paras. 7.130 -7.131.  
12 Panel Report, Russia – Traffic in Transit , paras. 7.14 6-7.147.  
13 Panel Report, Russia – Traffic in Transit , para. 7.138.  
14 Panel Report, Russia – Traffic in Transit , paras. 7.132 -7.139.  
15 Panel Report, Russia – Traffic in Transit,  para. 7.133.  
16 Panel Report, Russia – Traffic in Transit , para. 7.134.  
17 Panel Report, Russia – Traffic in Transit , para. 7.133.  
18 Appellate Body Report, EC – Seal Products , para. 5.169.  WT/DS567/R/Add.1  
 
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  essential security interests, it would be reasonable for a panel to determine that the action was not 
in fact taken " for" this purpose, as is required by Article  73(b) of the TRIPS Agreement.19 
14. Accordingly, in this dispute, Australia submits that it is for Saudi Arabia to determine for itself  
what action it considers "necessary for the protection of its essential security interests" under 
Article  73(b). However, this deference does not dispense with the Panel's obligation to undertake an 
objective  assessment of the matter before it, by determi ning: (i) whether Saudi Arabia in fact 
considers the actions it has taken are necessary for the protection of its essential security interests 
(including by having regard to Saudi Arabia's statements and conduct); and (ii) whether those 
actions were in fac t taken for the protection of  those essential security interests.  
  
 
19 Appellate Body Report, EC – Seal Products , para. 5.228 (emphasis original), cited in Appellate Body 
Reports, US – COOL (Article 21.5 – Canada and Mexico) , para. 5.209.  WT/DS567/R/Add.1  
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE KINGDOM OF BAHRAIN  
I. ARTICLE 73(B) OF THE TRIPS  AGREEMENT IS FULLY SELF -JUDGING  
1. The Kingdom of Saudi Arabia has invoked Article 73(b)(iii) of the TRIPS Agreement to justify 
its measures.1  Article 73(b)(iii) provides that "[n]othing in [the TRIPS Agreement] shall be construed 
… to prevent a Member from taking any action which it considers  necessary for the protection of it s 
essential security interests … taken in time of war or other emergency in international relations… " 
(emphasis added).   
2. The use of the term " it considers " indicates that this provision has a self -judging character.  
The effect of a self -judging provi sion is that a panel is confined to ascertaining whether or not the 
invoking WTO Member has concluded that relevant conditions exist; the panel cannot itself assess 
whether those relevant conditions exist.   
3. It is Bahrain's position that the term " it considers " applies to the entirety of Article 73(b), 
including sub -paragraphs (i), (ii) and (iii). These sub -paragraphs do not set out separate 
requirements, but rather represent a continuation and completion of the language used in the 
chapeau of Article 73 (b). They are to be understood as parts of a single composite requirement.  
4. In Bahrain's view, Article 73(b) must be read in a holistic and integrated manner and it is not 
tenable to dissect Article 73(b) into elements or components some of which are se lf-judging and 
some of which are not. This is because there is an inherent connection between the war or other 
emergency (described in Article 73(b)(iii)) and the measures taken in response to protect security 
(described in the chapeau of Article 73(b)). A nd there is no cogent policy justification for treating 
the decision to choose a particular security measure as necessary differently from the decision to 
characterise a particular situation as a threat to essential security interests arising from war or a n 
emergency. All elements of the provision must be equally self -judging for Article 73(b) to operate 
coherently.   
5. Bahrain notes that the panel in the recent Russia – Traffic in Transit dispute reached a different 
conclusion regarding the self -judging n ature of Article XXI(b) of the GATT 1994 (which is equivalent 
to Article 73(b) of the TRIPS Agreement). However, the Russia – Traffic in Transit  panel erred in 
several respects  
(a) First, the panel erred in asserting that the sub -paragraphs of Article XXI(b) would serve 
no purpose or lack " effet utile " if Article XXI were fully self -judging.2 But this assertion 
ignores the fact that the sub -paragraphs, along with the chapeau, serve the purpose of 
defining the issue that the invoking WTO Member must reach a judgment on in order to 
invoke the exception. In this sense the sub -paragraphs are no di fferent from the chapeau. 
If the sub -paragraphs lack " effet utile " then, on the panel's logic, the chapeau must also 
lack " effet utile " for the same reason.   
(b) Second, the panel erred in identifying the issue before it as "whether the subject -matter 
of each of the … sub -paragraphs of Article XXI(b) lends itself to purely subjective 
determination".3 The issue before the panel was whether the term "it considers" qualifies 
the sub -paragraphs as well. The answer to that straightforward question of treaty 
interpretation does not depend on the quite different, and ill -defined, question of whether 
the sub -paragraphs "are amenable to objective determination"4 or whether they "lend 
[themselves] to purely subjective determination".5 Even if the issues in questio n are 
capable of objective determination nothing would prevent the drafters from treating such 
issues as self -judging issues.   
 
1 The KSA's First Written Submission, paras 3, 6, 7.  
2 Panel Report, Russia – Traffic in Transit , para. 7.65.  
3 Panel Report, Russia – Traffic in Transit , para. 7.66.  
4 Panel Report, Russia – Traffic in Transit , paras. 7.69, 7. 70, 7.71, 7.77.  
5 Panel Report, Russia – Traffic in Transit , para. 7.66.  WT/DS567/R/Add.1  
 
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  (c) Finally, the panel's assertion that the security and predictability of the multilateral trading 
system would be undermined i f a fully self -judging interpretation were adopted fails to 
grapple with the fact that Article XXI(b)(iii) is self -balancing which, in turn, limits the 
scope for abuse and harm to the multilateral system. In addition, as the KSA points out 
in its submissio n, the multilateral system is also weakened if WTO panels second -guess 
highly sensitive decisions about security policy.6   
II. RISK OF ABUSE  
6. Bahrain understands that many of the arguments made against its interpretation of Article  73 
are motivated by  the desire to prevent abuse of the security exceptions.  
7. There are two answers to this concern about abuse.  
8. First, there are likely to be adverse reputational effects for WTO Members who abuse Article 
73.  This by itself acts as a safeguard against a buse. As Chairman Colban observed as far back as 
1947, during the negotiations of the Havana Charter, ultimately it is the attitude of the Membership 
that is" the only efficient guarantee against abuses… ".7    
9. Second, Article 73(b)(iii) contains an intr insic safeguard against abuse because it is self -
balancing. Every invocation of Article 73(b)(iii) implies permission for the affected WTO Member to 
respond with counter -sanctions of its own. So, if there is an emergency in the relations between A 
and B, t hen both A and B can impose sanctions on each other. It follows that Article 73(b)(iii) has a 
self-balancing character. This self -balancing character implies that introducing objective panel 
review does not really change the position of the complaining WTO  Member. At the end of a 
successful dispute settlement proceeding, the complaining WTO Member will only get the right to 
retaliate. But it already has this right under Article 73 because of its self -balancing character. It 
follows that allowing for objecti ve panel review does not achieve anything new or additional in terms 
of deterring abuse.    
III. CONCLUSION  
10. Bahrain submits that all of the elements of Article 73(b) of the TRIPS Agreement are self -
judging. It follows that, in light of the KSA's state ment that the elements of Article 73(b) are met in 
this case, the Panel should dismiss the claims advanced by Qatar.  
  
 
6 The KSA's First Written Submission, para. 13.  
7 See discussion on 24 July 1947, E/PC/T/A/PV/33, p.21 (comment by Chairman Eric Colban, Chairman, 
Norway).  WT/DS567/R/Add.1  
 
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  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL  
I. INTRODUCTION  
1. Brazil welcomes the opportunity to present its view s on the issues raised in these panel 
proceedings. While it will generally not dwell on the particular facts presented by the Parties, Brazil 
acknowledges that the complainant has presented claims of inconsistency with a number of 
provisions of the Agreeme nt on Trade -Related Aspects of Intellectual Property Rights 
(TRIPS  Agreement) and that the respondent, by invoking a security exception, has not specifically 
addressed the factual evidence or legal arguments adduced by the claimant in support of its 
substa ntive claims.  
II. ARGUMENTS  
2.  At the outset, Brazil would like to recall that there are no previous WTO Panel or Appellate 
Body reports interpreting the security exceptions in the TRIPS Agreement. However, as the language 
in Article 73 is identical to the corresponding provision in the  GATT 1994, the determination recently 
made by the Panel in Russia – Traffic in Transit may provide guidance in the analysis of the present 
dispute. Brazil understands that this analysis must nevertheless be carried out in the context of the 
TRIPS Agreemen t. With that in mind, Brazil would like to elaborate on some of the elements it 
considers relevant for the interpretation of Article 73.  
3. As the security exceptions provided for in Article XXI of the GATT 1994 and Article XIV bis of 
the GATS, Brazil unde rstands that Article 73 of the TRIPS Agreement aims at striking an adequate 
balance between two competing interests. 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 p revent the abuses 
that could ensue if security exceptions were misused to exempt compliance with the obligations 
assumed under the agreed TRIPS disciplines. In light of this intrinsic dichotomy, Brazil would like to 
address three specific issues that might  aid the Panel in its analysis of the matter before it.  
a) justiciability of security exceptions  
4. The Panel in Russia – Traffic in Transit  indeed stated that "given the absence in the DSU of 
any special or additional rules of procedure applying to disputes involving Article XXI of the 
GATT  1994, Russia's invocation of Article XXI(b)(iii) is within the Panel's terms of reference for the 
purpo se of the DSU."1 
5. Accordingly, rather than excluding the Panel's jurisdiction, a party invoking a security 
exception obliges the Panel to examine the challenged measures in light of the relevant provisions 
and to make its own objective assessment of the  matter. 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.  
6. Moreover, an exclusion of jurisdiction would deprive the complainant of its right to a decision 
and would go against the letter of Article 3.3 of the DSU, according to which a Member that initiates 
a dispute "is entitled to a ruling by a WTO panel".  
7. In light of the foregoing, Brazil considers that recourse to security exceptions does not have 
the effect of excluding the jurisdictio n of a panel. In fact, unless otherwise justified by the exercise 
of true judicial economy, a panel is required by WTO law to examine and to make findings with 
respect to all provisions cited by the parties, which in the current proceedings include Article  73 of 
the TRIPS Agreement.  
 
1 Panel Report, Russia – Traffic in Transit , para. 7.56.  WT/DS567/R/Add.1  
 
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  b) analytical framework for the examination under Article 73(b) of the 
TRIPS  Agreement  
8. The second issue that Brazil would like to address concerns the analytical framework to be 
adopted by the Panel when interpreting Article 73(b) of the TRIPS Agreement.  
9.  In its relevant part, Article 73(b) states that nothing in the TRIPS Agreement shall be 
construed to prevent a Member from taking any action which it considers  necessary for the protection 
of its essential security interes ts under three specific sets of circumstances. In other words, 
Article  73(b) does not stop at the chapeau. It goes on to list an exhaustive number of circumstances 
under which the exceptions apply. The logical structure of this provision supports the inter pretation 
that the circumstances under subparagraphs (i) to (iii) of Article 73(b) operate as limitative 
qualifying clauses, which means that they limit the exercise of the discretion accorded to Members 
under the chapeau.  
10.  Accordingly, Brazil underst ands that Article 73(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). This understanding seems to be confirmed by the Panel in Russia – Transit.  
11. In Brazil's view, the analysis of Article 73(b) should begin at the level of the objective 
component. Accordingly, the Panel's first step should be the asses sment of whether one or more of 
the circumstances in subparagraphs (i) through (iii) – as invoked by the party asserting the defense 
– are present. This approach seems logical because, if none of those circumstances is present in the 
case at hand, the Pane l need not proceed with the remainder of the analysis.  
12. 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 73(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 73; it must present evidence to demonstrate  that the circumstance exists.  
13. Once the presence of one of the circumstances provided for in subparagraph (iii) is verified, 
the Panel should then proceed to the analysis of the subjective component contained in literal (b) of 
Article 73.  
14. It stands out that the language of Article 73 – "which it considers" – confers a great deal of 
discretion regarding the necessity of the measure. That, however, does not mean that the 
autonomy  accorded by this provision is completely unfettered. Brazil understands t hat Members 
invoking Article 73 bear the burden of at least justifying their assertion of necessity for the protection 
of essential security interests.  
15. In other words, it is not sufficient for Members to state that they consider certain measures 
necess ary; they must also explain why they consider those measures necessary. In this respect, the 
burden of proof "will necessarily vary from measure to measure, provision to provision, and case to 
case".2 
16. In addition, Brazil recalls that, in Russia – Traffic in Transit , the Panel asserted that although 
it is left, in general, to every Member to define what it considers to be its essential security interests, 
this does not mean that a Member is free to elevate any concern to that of an "essential security 
interest". Accordingly, the Panel determined that "it is [therefore] incumbent on the invoking 
Member to articulate the essential security interests said to arise from the emergency in international 
relations sufficiently enough to demonstrate their veracit y".3 
17. With regard to this point, in its First Written Submission4 Saudi Arabia made a reference to 
Article 73(a) of the TRIPS Agreement, according to which: "Nothing in this Agreement shall be 
construed (a) to require any contracting party to furnish any information the disclosure of which it 
 
2 Appellate Body Report, US – Shirts and Blouses , pg. 14.  
3 Panel Report, Russia – Traffic i n Transit , para. 7.134.  
4 First Written Submission by the Kingdom of Saudi Arabia, para. 8.  WT/DS567/R/Add.1  
 
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  considers contrary to its essential security interests." Saudi Arabia's understanding seems to be that 
a burden to justify the recourse to Article 73(b) would be contradictory with the non -disclosure 
exception of Article 73(a).  
18. However, Brazil recalls that the Appellate Body stated that "we find it difficult, indeed, to see 
how any system of judicial settlement could work if it incorporated the proposition that the mere 
assertion of a claim might amount to pro of"5. This understanding seems to also apply to exceptions, 
as the Appellate Body found that "[t]he general rule in a dispute settlement proceeding requiring a 
complaining party to establish a prima facie  case […] is not avoided by simply describing that same 
provision as an exception"6. 
19. It is not a provision of the TRIPS Agreement that requires a Member invoking a security 
exception under Article 73 to justify such recourse. Rather, it is a basic rule of any dispute settlement 
system – the burden of proof – that so requires. Article 73(a)  is in the nature of an additional 
exception to the obligations under the TRIPS Agreement, it is not an exception to the application of 
the burden of proof.  
20. Moreover, an overly broad interpretation of Article 73(a) could effectively render items 
(i) through (iii) of Article 73(b) inutile , as the Member resorting to a security exception would be 
exempt from adducing any evidence at all regarding the existence of the circumstances provided in 
those items.  
21. In light of the foregoing, Brazil understand s that Article 73(a) should not be interpreted as 
precluding the need for Members to motivate  their recourse to the exceptions of Article 73(b).  
c) plausibility and connection between the measure and the situation of emergency  
22. In connection with the above reasoning, Brazil would like to address a third issue related to 
the interpretation of Article 73(b). Brazil considers that, once a Member has explained the reasons 
behind the invocation of the security exception, the Panel should exercise some degre e of judicial 
review over the Member's motivation.  
23. It is Brazil's understanding that, in the last step of the analysis under Article 73(b)(iii), the 
Panel should review the motivation provided by the Member invoking the security exception in light 
of two criteria. First, whether there is some degree of connection between the measure and the state 
of war or other emergency in international relations. Second, whether there is a plausible link 
between the measure the Member wishes to justify and the purpos e stated in its motivation.  
24. In relation to the first criterion, the Panel must be satisfied that the Member was able to prove 
that there is a connection between the challenged measure and the war or emergency deemed 
present pursuant to subparagraph (ii i) of Article 73(b). Brazil believes that the need for this 
connection is justified in light of the object and purpose of the TRIPS Agreement, which should 
inform the interpretation of Article 73. In fact, precluding this analysis could lead to untenable 
results, as a Member would be allowed to disregard its obligations under the TRIPS Agreement in 
relation to all WTO members, in a manner that could be entirely unrelated to the particular situation 
of war or emergency.  
25. With respect to the second criteri on, the Panel should be satisfied that there is a plausible link 
between the measure and the purpose stated in its motivation.  
26. Regarding the degree of connection and the plausible link between the measure and its 
motivation, the Panel in Russia – Traffic in Transit  found an obligation of good faith.7. The Panel 
concluded that it must review whether the measures at issue are so remote from , or unrelated to , 
the alleged emergency in international relations that it is implausible that a Member implemented  
the measures for the protection of its essential security interests arising out of that emergency.8 
 
5 Appellate Body Report, US – Shirts and Blouses , pg. 14.  
6 Appellate Body Report, EC – Hormones , par. 104.  
7 Panel Report, Russia – Traffic in Transit , para. 7.138 . 
8 Panel Report, Russia – Traffic in Transit , para. 7.139.  WT/DS567/R/Add.1  
 
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  27. As mentioned before, Brazil will generally not dwell on the factual aspects of the present 
dispute. However, Brazil would like to direct the attention  of the Panel to the analysis of the 
plausibility of one of those measures, described by Qatar as "Saudi Arabia's omission to prosecute, 
as a criminal violation, piracy on a commercial scale, of material in which copyright is owned by, or 
licensed to, Qata ri nationals".9 
28. Qatar appears to have made a prima facie  case that Saudi Arabia not only permits, but actively 
encourages and promotes  the widespread piracy of copyrighted works, in violation of the disciplines 
of the TRIPS Agreement, in particular Ar ticle 61, which provides that "Members shall provide for 
criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting 
or copyright piracy on a commercial scale […]".  
29. In Brazil's view, the Panel's assessment on th e plausibility and connection between 
Saudi  Arabia's omission to prosecute piracy on a commercial scale and the emergency in 
international relations that it has invoked will set a precedent of systemic relevance for the 
interpretation of the security excep tions under the TRIPS Agreement. As mentioned before, the Panel 
Report in Russia – Traffic in Transit  has applied a test of connection and plausibility of the measures 
at issue in light of Article XXI of the GATT 1994 and could provide guidance in the appl ication of the 
same test under Article 73 of the TRIPS Agreement.  
  
 
9 Qatar's First Written Submission, para. 141(d).  WT/DS567/R/Add.1  
 
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  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA  
I. APPLICABILITY OF THE WTO AGREEMENT AND COVERED AGREEMENTS  
1. Saudi Arabia appears to suggest, in its first written submission, that because its severance of 
diplomatic relations with Qatar is a critical element of the protection of Saudi Arabia's essential 
security interests, and that Saudi Arabia has invoked the essential security exception under 
Article  73 of  the TRIPS Agreement in justification of its measures, Saudi Arabia is absolved of the 
legal obligations it owes under the TRIPS Agreement towards Qatar1. 
2. Pursuant to Article II(2) of the WTO Agreement, the TRIPS Agreement is an "integral part" of 
the WTO Agreement, and "binding on all Members". Customary international law, specifically Article 
63 of the Vienna Convention on the Law of Treaties, also confirms that sever ance of diplomatic 
relations does not affect the legal obligations established between two parties to a treaty2. The only 
means by which a Member would be absolved of its legal obligations under the TRIPS Agreement 
would be if that Member withdrew from th e WTO Agreement in accordance with the withdrawal 
procedure set out in Article XV of that Agreement.  
II. CORRECT ORDER OF ANALYSIS  
3. On the issue of the correct order of analysis, Canada disagrees with the panel's finding in 
Russia – Traffic in Transit  that the nature of the General Agreement on Tariffs and Trade 1994 
(GATT  1994) Article XXI essential security exception does not necessitate that the order of analysis 
begin with the examination of the consistency of measures with relevant substantive obliga tions3.  
In that dispute, the panel found that "only if the measures are found not to be taken in a time of 
war or other emergency in international relations" does it become necessary to determine the 
consistency of the measures with substantive obligatio ns4. 
4. In Canada's view, it is incumbent upon a panel to address a Complainant's claims first before 
proceeding to examine the exceptions invoked by a Respondent. This order of analysis is required 
by virtue of the fact that the essential security except ion is  an exception , and the potential 
availability of an exception is ripe in law only when there is a finding of a violation. It is also required 
in order for a panel to fully address the "matter" at issue and to meet the objectives and 
requirements of the DSU, specifically a set out in Articles 3, 7, and 11 of that Agreement.   
5. There is also value in potentially having a positive finding of inconsistency even if the panel 
ultimately finds that the essential security exception has been properly invoke d. For instance, if the 
circumstances justifying the invocation of the essential security exception cease to exist, then a 
Complainant may wish to pursue further action under the DSU to seek the removal of the offending 
measures that the panel had found to  be inconsistent. The objectives of the DSU may also be further 
frustrated if the analytical order advanced by the panel in Russia – Traffic in Transit  is adopted, 
particularly if the panel in this dispute should find that the security exception can be suc cessfully 
invoked, and if such finding was reversed on appeal. The Appellate Body would then be called upon 
to examine the claims made by the Complainant without those claims having been considered by 
the Panel and in the absence of legal interpretations a nd findings by the Panel that would normally 
form the basis for an appeal. In addition, the Appellate Body's examination would require a complex 
factual assessment and the weighing of evidence submitted by the parties - an exercise that could 
go beyond the  jurisdiction of the Appellate Body and make it impossible for the DSB to provide 
recommendations and rulings on all legal claims.  
6. In situations where a Respondent has not contested claims raised by the Complainant, a panel 
must also adopt this order of  analysis, first satisfying itself that a Complainant has established a 
 
1 Saudi Arabia's first written submission, paras. 4 -5 and 7.  
2 United Nations, Vienna Convention on the Law of Treaties , 23 May 1969, United Natio ns, Treaty 
Series, vol. 1155, p. 331.  
3 Panel Report , Russia – Traffic in Transit , para. 7.108.  
4 Ibid., para. 7.109.  WT/DS567/R/Add.1  
 
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  prima facie case of violation before proceeding to examine any invoked exceptions5. As in a case 
where a Respondent has contested claims raised by a Complainant, a panel's failure to consider the 
Complainant's claims would prevent the panel from fully addressing the "matter" at issue, as it is 
required to do under the DSU.  It is solely in instances when a panel finds that a Member has 
explicitly conceded that its measure violates an o bligation that a panel may begin the analysis with 
an invoked exception for that conceded violation6; even in those instances the panel must still make 
a finding of a violation before it proceeds to examine the invoked exception.  
III. THE TEST AND STANDAR D OF REVIEW FOR THE ESSENTIAL SECURITY EXCEPTION 
IN ARTICLE 73 OF THE TRIPS AGREEMENT  
7. Given the text of the essential security exception in Article 73 of the TRIPS Agreement and 
the essential security exceptions contained in the GATT 1994 and the GATS, the negotiating history 
of those essential security exceptions, and the particularly sensitive nature of their subject matter, 
the test and standard of review for these exceptions must be interpreted in a manner that accords 
a high level of deference to an  invoking Member while ensuring that the object and purpose of the 
covered agreements are not undermined.  
8. In light of the recent panel report in Russia  – Traffic in Transit , in which the panel made 
findings on the essential security exception in Article XXI(b)(iii) of the GATT 1994, Canada's view is 
that the correct test and standard of review for the essential security exception available under 
paragraph (b) of Article 73 of the TRIPS Agreement involves a combination of subjective and 
objective e lements. Namely:  
• The subjective element of the test is found in the chapeau of paragraph (b), 
such that the invoking Member need demonstrate only that it considered its 
measures to be necessary to protect its essential security interests.  
• The objective ele ment of the test is contained in the subparagraphs of paragraph 
(b) and in the relationship between the subparagraphs and the measures 
adopted by the invoking Member.  
9. Canada agrees with the panel in Russia  – Traffic in Transit  that a panel must objectiv ely 
determine that there is a "war or other emergency in international relations" for a measure to fall 
within the scope of the provision7. 
10. Further, it is Canada's view that a panel's assessment of whether the requirements of 
Article  73(b)(iii) have b een met must include a determination of whether there is a "sufficient nexus" 
between the measure adopted by the invoking Member and the circumstances set out in 
subparagraph (iii). This is an objective assessment that goes beyond the "good faith" plausibi lity 
test set out by the panel in Russia  – Traffic in Transit8. Examining whether there is a "sufficient 
nexus" involves, first, a determination that the measures were taken contemporaneously with the 
"war or other emergency in international relations". T he words "taken in" in the text indicate the 
need for this temporal connection.  Second, a panel must be satisfied that there is a sufficient nexus, 
or link, between the measures at issue and the war or other emergency. For example, this would 
include bein g satisfied that the design and scope of the measures pertain to the war or other 
emergency. In other words, a Member could not use an existing emergency as a pretext to 
implement a trade -restrictive measure completely unrelated to that emergency.  
11. The standard of review for subparagraph (iii) cannot be satisfied with a mere assertion by the 
invoking Member that there is a "war or other emergency". This is because such an interpretation, 
if adopted, would result in reducing subparagraph (iii) to redundan cy. That is, the subparagraph 
would serve no purpose as a Member could effectively take measures that it considered necessary 
for the protection of its essential security interests, without having to substantiate the existence of 
the circumstances in which  the measures were taken. A meaning must be ascribed to the fact that 
 
5 See for example Panel Reports, US – Shrimp (Ecuador) , paras. 7.9 and 7.11 and US – Poultry (China) , 
paras. 7.445 -7.446.  
6 For example, in US – Shrimp where the United States admitted that its measures were in violation of 
GATT 1994 Article XI:1.  Panel Report, US – Shrimp , paras. 7.15 and 7.17.  
7 Panel Report, Russia – Traffic in Transit , paras. 7.77 and 7.83.  
8 Panel Report,  Russia – Traffic in Transit , para. 7.139.  WT/DS567/R/Add.1  
 
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  Members chose to specify circumstances in which the security exceptions could be invoked. An 
interpretation that fails to require a Member to demonstrate that such a circumstance objecti vely 
exists, and that there is a sufficient connection between the measures and that circumstance, would 
be at odds with the general rules of treaty interpretation that require meaning be given to each term 
and provision9. 
IV. TRIPS AGREEMENT PROVISIONS AT ISSUE  
12. In addition to its submissions on the above -noted issues, Canada also responded to questions 
from the Panel regarding the correct order of analysis between Parts I, II, and III of the TRIPS 
Agreement, and on the relationship between  specific provisions in each of those parts.  
13. In Canada's view, the relationship between the various Parts of the TRIPS Agreement provides 
guidance as to the order of analysis that appears to be logical for a panel to follow in considering 
claims raised  by a Complainant under each Part, beginning with the general obligations in Part I, 
followed by the minimum standards of protection under Part II and the obligations regarding 
enforcement procedures and remedies under Part III.  
14. In response to question s from the panel regarding whether the same measure may be found 
to violate various provisions of the TRIPS Agreement, Canada took the position that it is possible 
that the same aspect of the same measure may concurrently violate obligations under Part II and 
Part III of the TRIPS Agreement. For example, a measure found to violate the civil enforcement 
requirements under TRIPS Article 42 on the basis of the measure discriminating against nationals of 
another Member may also be found to violate the general n on-discrimination obligation in 
TRIPS  Article 3.1. In response to a question from the Panel regarding whether a finding of 
inconsistency under any of TRIPS Articles 41.1, 42, or 61 would render a finding under another of 
those articles redundant, Canada sh ared its view that a finding of inconsistency with one of those 
enforcement provisions would not necessarily render a finding under another provision redundant, 
given that they are distinct obligations concerning, for example, civil and criminal enforcemen t. 
However, whether the same aspect of a measure will be found to be inconsistent with different 
obligations under the TRIPS Agreement, or whether the same measure will be found to violate 
multiple TRIPS provisions, is necessarily dependent on the measures  and facts at issue.  
  
 
9 Appellate Body Report, US – Gasoline , para. 61.  WT/DS567/R/Add.1  
 
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  ANNEX C -5 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA* 
I. INTRODUCTORY COMMENTS  
Distinguished Chair, members of the Panel, colleagues,  
1. Good afternoon.  China  would like to express its appreciation to the Panel for this opportunity 
to state China 's views  and comment s for this dispute .   
2. China  considers that this dispute raises significant issues regarding the invocation and 
interpretation of  Article 73(b)(ii i) of the TRIPS Agreement , as well as the rights and obligations of 
WTO Members.  In this statement, China  will offer its views on that should one Member " severed 
diplomatic and consular relations"1 with another Member, whether Dispute Settlement Body (DSB ) 
and its panel  have the jurisdiction to settle the dispute raised by that Member , pursuant  to the 
relevant provisions in Dispute Settlement Understanding ( DSU). China  will also explain the order of 
analysis that the Panel should apply to the dispute in wh ich the defendant has invoked the security 
exception clause.  
II. PANEL'S JURISDICTION TO REVIEW THE DISPUTE INVOKING ARTICLE 73(B)(III) OF THE 
TRIPS  AGREEMENT  
3. In its first written submission, S audi Arabia alleged that the only relevant facts in this dispute 
is "the severance of relations" between itself and the complainant, and "the publicly -stated reasons" 
for the measures imposed by Saudi Arabia since that severance2. By recognizing such relevant facts, 
Saudi Arabia opined that 'the Panel should de cline to proceed further in this dispute because a WTO 
dispute settlement panel is not capable of resolving the national security matter at issue', pursuant 
to Articles 3.4, 3.7, and 11 of the DSU3. 
4. While China does not take position on the facts of th is dispute, China is of the view that there 
is no textual basis for S audi Arabia to reach  such a conclusion . On the contrary, s hould the Panel 
decline to proceed further in this dispute, it will be erroneous ly released from its obligation set forth 
in the DSU.  
5. It should be understood that, even if the diplomatic relations  has been severed  between two 
WTO Members, should  one Member claim that its benefit under the TRIPS Agreement has been 
impaired by measures taken by another Member,  and raise such a dispute to DSB, the DSU, which 
was listed as Annex 2 of the WTO Agreement, shall still apply to these Members,  because  Article 64 
of TRIPS Agreement states that "the provisions of Articles XXII and XXIII of GATT 1994 as elaborated 
and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement 
of disputes under this Agreement except as other wise specifically provided herein".  
6. This is the case for the current dispute, where the complainant alleged that the measures at 
issue were inconsistent with Articles 3.1, 4, 14.3, 41.1, 42, and 62 of the TRIPS Agreement, and 
Articles 9, 11, 11bis, 11te r of the Berne Convention for the Protection of Literary and Artistic Works 
(1971), as incorporated into Article 9 of the TRIPS Agreement, and the defendant invoked 
Article  73(b)(iii) of the TRIPS Agreement to justified its measures at issue. None of these  provisions 
provides special rules or procedures for dispute settlement. Therefore, the DSU shall apply to the 
current dispute.  
7. Based on this understanding, China turns to notice that on 18 December 2018 , the DSB 
meeting established a Panel for this dispute with the following terms of  reference : 
"To examine, in the light of the relevant provisions of the covered agreements 
cited by the parties to the dispute, the matter referred to the DSB by Qatar 
 
* China requested its oral statement  to be used as its executive summary.  
1 First Written Submission of S audi Arabia, para. 1. 
2 First Written Submission of S audi Arabia, para. 2. 
3 First Written Submission of S audi Arabia, para. 4. WT/DS567/R/Add.1  
 
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  in document WT/DS567/3 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 
8. Therefore, pursuant to Article 7 .2 of the DSU, China  is convinced that the Panel is obliged to 
address the relevant provisions in TRIPS Agreement cited by the parties to the dispute. Additionally, 
the Panel should, as required by Article 11 of the DSU, make objective assessment of the matter 
before it, including an objective assessment of the facts of t his dispute and the applicability of and 
conformity with the TRIPS Agreement.  
9. In sum, China respectfully disagrees with Saudi Arabia  that the Panel should restrain from 
proceeding further in this dispute . Oppositely, referring to the  above  observations,  China is of the 
view that the  Panel undoubtedly  has jurisdiction  to examine  the matter before it .  
III. ORDER OF ANALYSIS FOR DISPUTE WHICH THE DEFENDANT INVOKE THE SECURITY EXCEPTION 
CLAUSE  
10. China is of the view that the 'matter' which the Panel is obligated to make objective 
assessment with, is the matter referred to the DSB by the complaining Member, pursuant to 
Article  7.1 of the DSU. Such matter contains the measures at issue and the claims of the 
complainant.  
11. There fore, in order to fulfill its obligations and assist the DSB to discharge the latter's 
responsibilities under the DSU, the Panel is expected to firstly address the complainant's claims that 
whether the measures at issue constitute violations of the covered  agreements. Should the Panel 
find that such measures at issue do not exist or are not inconsistent with the relevant covered 
agreements, it shall restrain from proceed further in light of that finding.  
12. Only when the Panel reaches a positive determina tion that the complainant has established a 
prima facie case, it may, if applicable, turn of examine whether exceptions invoked by the 
respondent could justify the measures at issue5.   
13. Should the Panel choose not to follow the order of analysis which  China strongly advises, it 
would be "at odds with the requirement in DSU Article 11" in accordance with the observation made 
by the panel in US – Poultry (China) 6. 
IV. CONCLUSION  
14. China thanks the Panel for its attention and would like to answer any questions that Panel 
may raise.  
  
 
4 Constitution of the Panel established at the request of Qatar, WT/DS567/4, 19 February 2019.  
5 Panel Report, US – Shrimp  (Ecuador) , paras. 7.9 and 7.11.  
6 Panel Report, US – Poultry (China) , paras. 7.445 -7.446.  WT/DS567/R/Add.1  
 
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  ANNEX C -6 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION  
1. A panel has a certain discretion when it comes to the order of analysis , although it should 
ensure that the order of analysis does not inappropriately determine the outcome of the case. The 
European Union considers that in the present proceedings the Panel should start first with the 
alleged violations  and only then proceed t o the possible justifications under Article 73(b)(iii) of 
the TRIPS Agreement.  
A. On the consistency of different measures at issue with various provisions of the 
TRIPS  Agreement  
2. If the alleged travel ban imposed on Qatari nationals were included in the no tion 
of "protection " of intellectual property within the meaning of Articles 3.1 and 4 of the 
TRIPS  Agreement, that conclusion would amount to finding that the TRIPS Agreement requires free 
movement of persons. The European Union would be concerned with th e challenge under the 
TRIPS  Agreement of measures whose core features are the regulation of movement of persons that 
fall outside the WTO Agreements.  
3. The European Union considers that the alleged significant difficulties in securing legal 
representation by  Qataris in Saudi Arabia, may be considered as falling under the "protection " of 
intellectual property within the meaning of Articles 3.1 and 4 and thus violate those provisions 
because they are likely to have an effect on the enforcement of intellectual p roperty rights.  
4. The alleged significant difficulties in securing legal representation, the Ministry 's denial of 
access to the Copyright Committee, and the complete lack of criminal remedies, if proven, may 
violate of Articles 41.1, 42 and 61 of the TRIPS A greement. These measures are less likely to violate 
Articles 9, 11, 11bis and 11ter of the Berne Convention and Article 14.3 of the TRIPS  Agreement 
because these provisions do not cover enforcement of intellectual property rights.  
5. In particular, the Minist ry's alleged denial of access to the Copyright Committee, the sole 
entity responsible for copyright infringements and the approval of the latter 's decisions by the same 
Ministry, if proven, may violate Articles 41.1 and 42 of the TRIPS Agreement. Such proc edure may 
not constitute an enforcement procedure "so as to permit effective action against any act of 
infringement of intellectual property rights covered by this Agreement " as set out in Article 41.1 and 
does not appear to make available to right holders  civil judicial procedures concerning the 
enforcement of any intellectual property right as set out in Article  42. 
6. Article 61 of the TRIPS Agreement requires that Members provide for criminal procedures and 
penalties. The wording "to be applied " does not a dd an obligation to investigate and punish 
all cases  of wilful trademark counterfeiting or copyright piracy on a commercial scale. There are 
certain objective criteria which can justify if a WTO member does not investigate or prosecute in a 
given case (i.e . lack of evidence). In principle, the absence of initiation of investigations and the 
punishment of the alleged perpetrators alone cannot show a violation of Article 61.  
7. However, Article 61 has to be read in the context of Article 41.1 that requires that WTO 
Members ensure enforcement procedures so as to permit effective action against any act of 
infringement of intellectual property. In this case, if it is proven that the Saudi government 
supported, facilitated or even participated  in the alleged piracy, it could be argued that Saudi 
Arabia does not have an effective criminal procedure or even that de facto does not provide for 
criminal procedures and penalties for infringements in the case of the piracy of beIN 's content. 
Constant non -enforcement may amou nt to facilitating  IP rights infringement, against the spirit 
of Article 61. Indeed, criminal procedures and penalties should not be provided only on 
paper , but should be effective in practice, otherwise the obligation in Article 61 would be deprived 
of its meaning.  
B. On Saudi Arabia 's invocation of the security exceptions  
Jurisdiction of the Panel  WT/DS567/R/Add.1  
 
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  8. Saudi Arabia, with the support of the United States, alleges that panels do not have jurisdiction 
to deal with matters related to essential security interests. The European Union disagrees. Article 73 
is an affirmative defence. It may be invoked to justify an otherwise WTO inconsistent measure. It 
does not provide for an exception to the rules of jurisdiction laid down in the DSU. Interpreting 
Article 73 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 73 as raised by Saudi Arabia.  
9. If Article 73 was interpreted as a non -justiciable provision, a WTO Membe r, rather than the 
DSB, would be deciding the outcome of a dispute unilaterally. This would question the "rules -based" 
approach to international trade. Non -justiciability of an international dispute amounts to a lack of 
jurisdiction. In the rules -based fra mework of the WTO, the legal operability of Article 73 of the TRIPS 
Agreement rather revolves around the concepts of standard of review and discretion.  
10. Therefore, the concept of justiciability and the concept of discretion (linked to the Panel's 
standard o f review) need to be distinguished. The rules of the TRIPS Agreement, including Article  73 
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.  
11. By way of illustration, the European Union would like to point out that  there are fundamental 
differences in the way that security exceptions are drafted in the TRIPS  Agreement and in the GATT, 
on the one hand, and in other international agreements, on the other hand. For instance, an express 
text that comes very close to the  idea of non -justiciability can be found in the KORUS FTA 
(footnote  2). 
12. The panel in Russia – Traffic in Transit  confirmed the European Union 's understanding, 
expressed as a third party in those proceedings, with regard to the jurisdiction of panels in cas es 
where essential security exceptions are raised as defences.  
Burden of proof  
13. First, as a general comment, a WTO Member that invokes Article 73 (b) (iii) bears the burden 
of proof. Saudi Arabia 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 ad duced any facts which would allow 
the Panel to make findings.  
14. A party invoking an affirmative defence Saudi Arabia has the onus probandi . 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 73(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 purely economic 
and whether it is important enough to qualify as essential.  
15. This means adducing sufficient evidence to substantiate its defences. The party invoking a 
security exception cannot simply make some assertions an d then expect that the Panel will make its 
case, by looking at the news and the information available to the public in order to establish the 
relevant facts. However, once a party has already presented evidence, the panel may ask for 
additional clarificati ons and evidence (e.g. from that party), as per Article  13 of the DSU.  
16. Contrary to what Saudi Arabia maintains, the European Union fails to understand how 
Article  73(a) can exempt Saudi Arabia from meeting its burden of proof under Article 73(b). 
Like Article 73(b), Article 73(a) is also a justiciable provision. Discretion accorded under it is not 
unlimited.  
17. The European Union acknowledges that information relating to essential security interests is 
of a highly sensitive nature, but the complainant is expe cted at a minimum to explain in sufficient 
detail why such information cannot be shared with the Panel. There is nothing that would prevent a 
panel, if necessary, from adopting appropriate procedures to deal with sensitive information in cases 
involving th e invocation of Article 73. At any rate, even if Saudi Arabia was justified in not providing WT/DS567/R/Add.1  
 
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  certain information pursuant to Article 73(a), that would not discharge Saudi Arabia from its burden 
of proof in relation to Article 73(b).  
18. Second , with respect to  proving the existence of 'other emergency in international relations ', 
the European Union believes that the severance of diplomatic relations may be relevant, but not 
necessarily dispositive. Diplomatic relations are sometimes interrupted for reasons that  stop short 
of an emergency in international relations. For that reason, the invoking party should also provide 
sufficient explanations and evidence of the causes that motivated the severance of diplomatic 
relations. This does not imply a high evidentiary threshold. Where, as claimed in this case, the 
emergency in international relations stems from reasons such as the alleged sponsorship of terrorism 
by the other party, proving the existence of an emergency should not require producing classified 
evidence t he disclosure of which may compromise the security of the invoking party. The Riyad 
Agreement is a good example of the type of required evidence.  
19. Third, similar considerations apply with respect to the 'essential security interests ' that Saudi 
Arabia seeks to protect. In particular, the European Union would welcome a response to the 
clarifications pertinently sought by the Panel on whether the essential security interests of Saudi 
Arabia are "the risk […] arising from diplomatic and economic interaction with the complaining 
Member, including through media platforms and other tools that are being used to disseminate 
propaganda, to foment instability in the region, and to support terrorism and extremism".  
20. Fourth , the European Union wou ld also welcome an explanation of how the measures at issue 
can be considered 'for the protection of ' its essential security interest  in so far as they affect 
rights of third parties - i.e the EU right holders. In other words, the European Union would like  to 
understand how the infringement of the intellectual property rights of EU persons can be considered 
an action taken 'for the protection of ' Saudi Arabia 's essential security interests. The European Union 
has already conveyed to the Saudi authorities it s concerns through diplomatic channels, but 
unfortunately we have received no response so far.  
21. Fifth, the European Union considers that when assessing the necessity of the measure, and 
particularly the existence of reasonably available alternatives, the P anel should ascertain whether 
the interests of third parties which may be affected were properly taken into 
consideration . Thus, the European Union would appreciate if Saudi Arabia could provide a plausible 
explanation of the reasons why "it considers nece ssary" to allow the systematic infringement of the 
intellectual property rights of EU right holders in order to protect its essential security interests.  
Legal standard for the interpretation and application of Article 73(b)(iii) of the TRIPS Agreement  
22. The analytical framework developed by the panel in Russia — Traffic in Transit  for applying 
Article XXI of the GATT 1994 provides useful guidance for interpreting and applying Article 73 of the 
TRIPS Agreement. The text of Article 73(b)(iii) of the TRIPS Agr eement is identical to that of Article 
XXI(b)(iii) of the GATT 1994.  
23. The fact that Article 73 does not include language equivalent to the chapeau  of Article  XX 
suggests that the drafters intended to accord wider discretion to Members when adopting measures  
based on the security grounds cited in Article 73 of the TRIPS Agreement or in Article XXI of the 
GATT 1994. However, this does not mean that Members enjoy unfettered discretion under Article  73. 
24. The Appellate Body has explained that the chapeau of Articl e XX is aimed at preventing that 
the right to invoke one of the exceptions included in that provision be abused or misused. The same 
rationale applies also in the case of Article 73. The chapeau is a specification of the requirements 
imposed by the customa ry international law principle of pacta sunt servanda , according to which 
obligations must be performed in good faith. That general principle applies in respect of all WTO 
provisions, including Article 73. Therefore, the various elements included in Articl e 73(b)(iii) must 
be applied in light of the principle of good faith.  
25. To be clear, this does not mean that, in order to reject an Article 73 defence, a panel is obliged 
to find that the defending Member is not in good faith. An Article 73 defence can be re jected, just 
like any other defence, simply because the measure does not meet the conditions that must be 
satisfied in order for the defence to succeed. Nevertheless, it remains the case that, particularly with 
respect to those parts of Article 73 where th e defending Member enjoys greater discretion and room WT/DS567/R/Add.1  
 
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  for manoeuvre, the principle of good faith may have an important role to play, depending on the 
facts of particular cases. With greater autonomy comes greater responsibility.  
The first element of the an alysis under Article 73(b)(iii)  
26. 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 t o 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 international rela tions" exists 
in a given case. Article 73 is different in this respect from, for example, Article 3 of OECD Code of 
Liberalisation of Capital Movements, which refers to "the protection of [a Member's] essential 
security interests", without any further spec ification.  
27. The terms "which it considers" in Article 73(b) 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 readi ng would lead to the absurd result that a 
Member could unilaterally define fissionable materials in paragraph (i).  
28. Hence, the existence of a "war or other emergency in international relations" refers to 
objective factual situations that can be fully revie wed by panels, as the panel confirmed in Russia - 
Traffic in Transit . Both terms should be interpreted taking into account relevant international law.  
29. As the panel noted in Russia - Traffic in Transit , an emergency in international relations would 
appear t o refer generally to a situation of armed conflict, or of latent armed conflict, or of heightened 
tension or crisis, or of general instability engulfing or surrounding a state. Such situations give rise 
to particular types of interests for the Member in qu estion, i.e. defence or military interests, or 
maintenance of law and public order interests.  
30. The terms "taken in time" require a sufficient nexus between the action taken by the invoking 
Member and an ongoing 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 73 (b), which implies the existence of a threat to which the action 
of the invoking Member responds.  
31. 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 desir ed 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 interest must relate genuinely to "security" 
and be "essential".  Purely economic interests or security interests of minor importance would not 
qualify.  
32. "Essential security interests" is evidently a narrower concept than "security interests" and may 
generally be understood to refer to those interests relating to the qui ntessential functions of the 
state, namely, the protection of its territory and its population from external threats, and the 
maintenance of law and public order internally.   
33. Attempts to circumvent WTO obligations or compliance obligations, or protectioni st interests 
or security interests of minor importance, would not qualify under this exception. This  is also 
confirmed and supported by the obligation to interpret and apply Article 73(b) or Article XXI(b) in 
good faith, as a Member is not free to elevate any concern to that of an "essential security interest".  
34. 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 Membe r's perspective, so as to be able to detect abuses of this exception. Security interests 
may vary in time and space.  
35. Finally, the invoking Member must show that the action is "designed" to protect the relevant 
essential security interest from the threat po sed by the situation of war or other emergency in 
international relations.  WT/DS567/R/Add.1  
 
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  The second element of the analysis under Article 73(b)(iii)  
36. The second element in the analysis under Article 73 is whether the measure is "necessary", it 
pertains to the connection  between the measure at issue and the essential security interests.  
37. The terms "which it considers" imply that, in principle, it is for each Member to assess by itself 
whether a measure is "necessary". But this does not give the Member unfettered discretion . Under 
the necessity test in Article 73 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 applied 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.  
38. Finally, the European Union recalls that when objective ly assessing facts and evidence 
suggesting different possible outcomes the test is always one of "plausibility " or "more likely 
than not ".  
39. Article 73 of the TRIPS Agreement does not distinguish between "actions " and 
"measures ". There is no such general category called "actions " which somehow serves as an overall 
umbrella for the concrete "measures ". Indeed, the French and Spanish versions are clear, referring 
to measures ( mesures, medidas) , in the same way that Articles XXI and XX of the GATT 1994 also 
refer to measures.  
40. Thus, the European Union does not se any basis for the proposition that the required 
connection  should be linked to a nebulous overall "action ", while the concrete measures would 
escape scrutiny. In other words, the party invoking the security exceptions will have (1) to show 
each time that it fulfils one of the conditions in subparagraphs (i) to (iii), (2) explain which are its 
essential security interests and then (3) explain the connection between the concrete measures 
(in this case resulting in possible violations of several provisions of the TRIPS  Agreement) and the 
protection of its essential security interests.  
41. Accordingly, the example offered by the UAE in its third party submissions is misplaced: what 
Saudi Arabia, as the party invoking the security exceptions, has to demonstrate is not "consideration 
of whether there is a connection between the severance of relations as a whole and the security 
interests or emergency at issue ", but rather whether it is a c onnection between each measure and 
each possible violation of the TRIPS Agreement and Saudi Arabia 's essential security interests.  
42. The connection  between the measures and the essential security interests is found in two 
elements in Article 73(b): the diluted necessity test, subject to good faith  ("it considers 
necessary ") and the objective "for the protection of ". 
43. For instance, as glasses are "for" reading and pens "for" writing, in the same way it cannot be 
argued that a prohibition on placing on the market of products resulting from the inhumane killing 
of seals is "for" the protection of essential security interests.  
  WT/DS567/R/Add.1  
 
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  ANNEX C -7 
INTEGRATED EXECUT IVE SUMMARY OF THE ARGUMENTS OF JAPAN  
I. INTRODUCTION  
1. The views expressed below address four issues of principle s relating to the "essential security" 
exception in TRIPS Article 73: the consistent interpretation of the security exceptions in the TRIPS 
Agreement and the GATT 1994; the role of security exceptions within the structure of the WTO 
Agreement; the meaning a nd scope of the phrase "other emergency in international relations"; and 
whether TRIPS Article 73 has a self -balancing nature. Japan also comments on whether a panel or 
the Appellate Body can decline to make any findings on the ground that no satisfactory settlement 
was possible.  
II. TRIPS ARTICLE 73 SHOULD BE INTERPRETED CONSISTENTLY WITH 
GATT  ARTICLE  XXI 
2. The text of Article 73 of the TRIPS Agreement is virtually identical to the text of Article XXI of 
the GATT 1994, and the two provisions must be inter preted in a consistent and parallel manner.  
The drafters of the TRIPS Agreement sought to avoid the possibility that measures permitted under 
Article XXI could be contrary to the TRIPS Agreement, or vice versa.  That is why from 1991 onward, 
Article 73 of  the TRIPS text in 1991 was virtually identical to GATT Article XXI. The consistency in 
drafting between TRIPS Article 73 and GATT Article XXI indicates the will of the drafters that the two 
provisions be interpreted consistently. Accordingly, Japan sugges ts that the Panel interpret Article  73 
in a manner that is generally consistent with GATT Article XXI, while taking into account the 
intellectual property context of Article 73.  
III. CONTEXT OF THE INTERPRETATION OF TRIPS ARTICLE 73  
3. First, it should be  noted, that paragraph (b) of both of Article 73 of the TRIPS Agreement and 
Article XXI of the GATT 1994, notably its subparagraphs, specifically circumscribes the scope of 
subject products and situations that would allow a WTO Member to take measures for the purpose 
of protecting its "essential security interests". A Member's right to invoke the exceptions under 
paragraph  (b) of those provisions is not unbound.  
4. Second, the Panel's analysis should also identify and consider correctly the overall structur e 
of the WTO Agreement, which is part of the context of Article 73 of the TRIPS Agreement in the 
sense of Article 31 (2) of the Vienna Convention. The Panel should also take into consideration the 
role of Article 73 within that structure.  
5. The Panel in Russia – Traffic in Transit , in this regard,  pointed out that "a general object and 
purpose of the WTO Agreement, as well as of the GATT 1994, is to promote the security and 
predictability of the reciprocal and mutually advantageous arrangements and the su bstantial 
reduction of tariffs and other barriers to trade."1   
6. Japan understands that the WTO Agreement, like the GATT before it, is fundamentally an 
instrument setting out a stable global framework for economic relations based on a rule -based 
system,  benefiting all Members as a result of application of the non -discrimination clauses. The 
preamble of the WTO Agreement expresses the Members' resolve to "develop an integrated, more 
viable and durable multilateral trading system encompassing [GATT], the r esults of past trade 
liberalization efforts, and all of the results of the Uruguay Round[.]" In other words, the GATT and 
WTO Agreement were built as codes of binding legal obligations, designed to establish such a legal 
framework.  
7. The certainty and pre dictability provided by the WTO Agreement, including the 
TRIPS  Agreement, provide an indispensable basis for traders and producers to make economic 
 
1 Panel Report, Russia – Traffic in Transit , para. 7.79 (citing Appellate Body Reports, EC – Computer 
Equipment , para. 82; EC – Bananas III (Article 21.5 – Ecuador II)/EC – Bananas III (Article 21.5 – US), 
para.433; Argentina – Textiles and Apparel , para. 47; and EC – Chicken Cuts , para. 243).  
 WT/DS567/R/Add.1  
 
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  decisions about the future, to invest, and to increase trade, employment and economic growth. In 
a rules -based trading system, the ability to rely on the rules increases the stability of trade 
relationships.  Stable, reliable trade relationships build economic interdependence and peace. The 
GATT and WTO have thus fostered global economic interdependence through a rules -based trading 
system, keeping in mind that growing trade relationships based on mutual economic dependence 
will contribute to peace. This was the outcome intended by those who, in the early years of World 
War II, planned for revival of free trade w hen peace would come, and in the Atlantic Charter called 
for "the fullest collaboration between all nations in the economic field with the object of securing, 
for all, improved labor standards, economic advancement, and social security."2 Preserving the r ule 
of law, and the ability of traders to rely on compliance with TRIPS/GATT/WTO rules, serves the 
national security interest of all Members. By ensuring secure and undisrupted trading relationships, 
certainty and predictability, the WTO Agreement contribu tes to peace.  
8. In this sense, trading relations under the rule of law, through the expansion of global economic 
interdependence, are a key means of achieving security and economic growth for all participants in 
the multilateral trading system. It is unde r such an overreaching goal that national security is to be 
addressed.   
9. To be consistent with the principles underlying the GATT and the WTO as explained above, 
Members should avoid trade restrictive measures. It might nevertheless not be possible to 
sufficiently address some types of national security risks within such an ideal framework. That is 
why Article 73(b) of the TRIPS Agreement and Article XXI(b) of the GATT 1994 permit a Member to 
take certain measures (e.g. trade embargos) that are not consi stent with any obligation of the 
TRIPS  Agreement and the GATT 1994 in order to address such risks. Imposition of a trade embargo 
in time of war is a typical example. There is at the same time a widely shared understanding that 
these exceptions have their l imits. These Articles allow certain trade measures only relating to 
specific products or traffic in certain products, or in certain situations. As the panel in  Russia – Traffic 
in Transit  found, "[i]t would be entirely contrary to the security and predicta bility of the multilateral 
trading system established by the GATT 1994 and the WTO Agreements, [ ] to interpret Article XXI 
as an outright potestative condition, subjecting the existence of a Member's GATT and WTO 
obligations to a mere expression of the un ilateral will of that Member."3   
10. Article 73 permits a Member to take certain measures that are not otherwise consistent with 
its TRIPS obligations "if it considers" such measures are "necessary for the protection of its essential 
security interests[.]" In Japan's view, the term "consider"  accords the invoking Member a broad 
discretion to take measures for the purpose of protecting its essential security interests in light of 
the nature of national security risks; however, the term "consider" does not signify that "national 
security" is mor e important than other non -trade interests that might justify TRIPS -inconsistent 
measures. The phrase "if it considers" explicitly states, and clarifies, that it is for the invoking 
Member to determine whether a particular measure is "necessary for the pro tection of its essential 
security interests".  Without the term "consider", when panels and the Appellate Body review whether 
a measure is "necessary to protect its essential security interests", they might conclude in the 
negative on the ground that securi ty interests would be better served by complying with GATT/WTO 
obligations and thus maintaining economic interdependence with other Members. The term 
"consider" eliminates such a possibility by explicitly recognizing the discretion of the Member taking 
the measure, although the term "consider" does not mean to accord Members an unlimited discretion 
to take national security measures.  
IV. "OTHER EMERGENCY IN INTERNATIONAL RELATIONS"  
11. The chapeau of TRIPS Article 73(b) states that nothing in the TRIPS Agre ement shall be 
construed "to prevent a Member from taking any action which it considers necessary for the 
protection of its essential security interests." As one of these actions, Article 73(b)(iii) lists actions 
"taken in time of war or other emergency in  international relations."   
12. The KSA invokes Article 73(b)(iii) and asserts that the Panel should therefore decline to rule 
in this dispute.  The KSA claims that its severance of diplomatic and economic ties with Qatar is "the 
 
2 Atlantic Charter, signed on 14 August 1941, fifth clause; text in 1946 -47 Yearbook of the United 
Nations , p. 2, available at http://cdn.un.org/unyearbook/yun/pdf/1946 -47/1946 -47_37.pdf   
3 Russia – Traffic in Transit , para. 7.79.  WT/DS567/R/Add.1  
 
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  ultimate State expression  of the existence of an emergency in international relations."4 The KSA has 
not explained the connection between the alleged emergency in international relations and the 
measures at issue clearly.   
13. While Japan takes no position on the underlying fact s of this situation, in Japan's view, a mere 
assertion of severance of economic ties would not in itself constitute an "other emergency in 
international relations" under Article 73(b)(iii).  Article 73(b) allows a Member to justify its severance 
or disrupt ion of economic ties with other Members with regard to intellectual property rights. If the 
KSA argues that the act of disrupting ties with another Member with respect to intellectual property 
rights is itself an "other emergency in international relations " which justifies disrupting that other 
Member's intellectual property rights, this argument constitutes circular reasoning.    
14. The core question is whether it can be objectively assessed, pursuant to DSU Article 11, that 
an emergency in international r elations actually exists that would justify a measure that disrupts 
trade or breaches TRIPS obligations. A mere assertion of severance of economic and diplomatic ties 
by an invoking Member without any demonstration of relevant underlying facts might not es tablish 
a prima facie  justification under Article 73.  
15. The GATT 1994 does not define the term "other emergency in international relations". The 
Panel should apply the tools in Article 31 of the Vienna Convention on the Law of Treaties : 
interpreting thi s term in good faith, in accordance with the ordinary meaning to be given to it in the 
context of Article XXI, and in the light of its object and purpose. The dictionary definition of 
"emergency" includes a "situation, especially of danger or conflict, tha t arises unexpectedly and 
requires urgent action", and a "pressing need … a condition or danger or disaster throughout a 
region".5 Further, the text of Article XXI(b)(iii) refers to "war or other emergency in international 
relations". Thus, the drafters f irst listed "war" as the example of an "emergency" where a Member 
can take action to protect its essential security. This textual structure must be given appropriate 
weight. In Japan's view, the Panel should accordingly give careful consideration to the ex tent and 
gravity of the situation in international relations that the Member invoking Article XXI(b)(iii) refers 
to as the "other emergency".  
V. TRIPS ARTICLE 73 DOES NOT HAVE A SELF -BALANCING NATURE  
16. Japan disagrees with the argument that any Member in voking Article 73 implicitly consents to 
having counter -measures imposed on it by the affected Member, and that this right of retaliation 
provides a complete solution to the dispute. Such an interpretation disregards the rule of law in 
international trade.  Members invoke the WTO dispute settlement system not because they want 
authorization to suspend concessions, but because they and their stakeholders seek compliance with 
WTO rules. Counter -measures without limitation are only likely to lead to successive rounds of 
escalating trade restrictions. Moreover, relying on retaliation as the sole solution for Article 73 
measures is inherently inequitable, as retaliation favors larger Members with more retaliation power, 
and leaves smaller Members with no remedy.  
 
4 KSA FWS, para. 6.  
5 Panel Report, Russia – Traffic in Transit , para. 7.72 (citing Shorter Oxford English Dictionary, 6th ed., 
A. Stevenson (ed.) (Oxford University Press 2007), Vol. 2, p. 819).  WT/DS567/R/Add.1  
 
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  VI. PANELS SHOULD NOT DECLINE TO MAKE ANY FINDINGS ON THE GROUND THAT NO 
SATISFACTORY SETTLEMENT IS POSSIBLE  
17. The chapeau of GATT Article XXIII:1, applied via TRIPS Article 64, provides: " If any [Member] 
should consider that any benefit accruing to it directly or indirectly under this Agreement is being 
nullified or impaired…". It is clear that WTO dispute settlement is available for any Member that 
considers that a dispute exists. As the Appellate Body has stated, "a Mem ber has broad discretion 
in deciding whether to bring a case against another Member under the DSU. The language of 
Article  XXIII:1 of the GATT 1994 and of Article 3.7 of the DSU suggests, furthermore, that a Member 
is expected to be largely self -regulating  in deciding whether any such action would be 'fruitful'."6 
Thus, it is for the parties to a dispute, not the panel, to determine whether a dispute exists. The 
Appellate Body has further underlined that a Member that initiates a dispute has a right to a p anel 
ruling: "The fact that a Member may initiate a WTO dispute whenever it considers that 'any benefits 
accruing to [that Member] are being impaired by measures taken by another Member' implies that 
that Member is entitled to a ruling by a WTO panel."7 
  
 
6 Appellate Body Report, EC – Bananas III,  para. 135.  
7 Appellate Body Report, Mexico – Taxes on Soft Drinks, para. 52.  WT/DS567/R/Add.1  
 
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  ANNEX C -8 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY  
I. ORDER OF ANALYSIS  
1. In Norway's view, the panel should only assess whether a measure is justified under Article  73 
after it has assessed whether the measure violates the TRIPS Agreement . Article 73(b) operates to 
justify certain TRIPS -inconsistent action, using the same language as Article XX of the GATT 1994: 
"nothing in this Agreement shall be construed to prevent any Member from taking any action 
which…". Under Article XX of the GATT 1994, panels and the Appellate Body have, without exception, 
addressed first whether the complainant has made out its claims of WTO -inconsistency; and second 
whether the respondent has made out its affirmative defence that the measures are justified. This 
is because an affirmative defence is only relevant where a panel has found a violation. Just like 
Article XX is an affirmative defence to a violation of the GATT 1994, Article 73(b) of the TRIPS 
Agreement is also an affirmative defence to a violation of th e TRIPS Agreement. If there is no 
violation, then Article 73(b) has no operative role; there is nothing to justify in the first place. 
Logically, therefore, where a respondent invokes Article 73(b), the panel should first confirm whether 
there is a violati on; and second whether the violation is justified.  
2. Moreover, it is well -accepted, from jurisprudence under Article XX of the GATT 1994, that it is 
the WTO -inconsistent aspect of the measure – and not the measure as a whole – which must be 
justified.1 Of course, a panel cannot identify the WTO -inconsistent aspects of a measure until it has 
addressed the claims. Hence, in our view, it is clear that the same reasoning must apply with respect 
to the exceptions provisions applicable under the TRIPS Agreement . By contrast, if a panel were 
obliged to address Article 73(b) before addressing the claims, it would also have to assess whether 
the measures are justified in a vacuum, without yet having determined which aspects of the 
measures are WTO -inconsistent.2  
3. Hence, the order of analysis in this dispute should be such that a panel should first assess the 
claims of violation, and second, the justification under Article 73(b). An assessment of whether the 
measures are justified under Article 73(b)(iii) before  assessing whether the measures violated the 
covered agreement, is not an appropriate order of analysis.  
II. "JUSTICIABILITY" OF ARTICLE 73 OF THE TRIPS AGREEMENT  
4. Norway considers that an interpretation of the security exception in Article 73 of the 
TRIPS Agreement as "non -justiciable" finds no support in the rules of jurisdiction laid down in the 
covered agreements and the Dispute Settlement Understanding ("DSU"), and how the provisions 
therein have been practised.  
5. Article 1.1 of the DSU provides th at the DSU shall apply to disputes brought pursuant to the 
consultation and dispute settlement provisions of the covered agreements listed in Appendix 1. 
In addition, it follows from Article 1.2 that the rules and procedures of the DSU shall apply, subject  
to any special or additional rules of procedure in Appendix 2 of the DSU. The TRIPS Agreement is 
included as a covered agreement in Appendix 1. Neither Appendix 1 nor any special or additional 
procedure indicate that any provision of the covered agreement s listed in the Appendix is carved out 
from the compulsory jurisdiction to which Members have agreed.  
6. Furthermore, if mere invocation of Article 73(b) or equivalent security exceptions in the other 
covered agreements would render a claim "non -justiciabl e", this would allow easy circumvention of 
WTO obligations. To give a respondent the opportunity to effectively bar a panel's jurisdiction by 
mere invocation of a security exception, this would be a "carte blanche" for WTO Members to 
unilaterally set aside  the rules that the legitimacy of the rule -based system rests on. A respondent 
could invoke a variety of protectionist interests under the guise of national security, and thereby 
avoid scrutiny of its WTO -inconsistent measures altogether. Such a measure co uld violate any of the 
 
1 Appellate Body Report, US – Gasoline , pp. 13 -14; Appellate B ody Report, Thailand – Cigarettes , 
para. 177; Appellate Body Reports, EC – Seal Products , para. 5.185.  
2 In our view, the panel in Russia – Traffic in Transit  erred by departing from the accepted order of analysis 
under "exceptions provisions" in the GATT 1994.  WT/DS567/R/Add.1  
 
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  Member's WTO obligations, and a WTO panel would be barred from making any findings of 
inconsistency. An interpretation of Article 73(b), which had this effect, would render all the 
obligations in the TRIPS Agreement effectively unenf orceable.  
7. Moreover, if the intentions of the negotiators were for the panel to have no jurisdiction to 
examine a dispute once a Member invokes a security exception provision, one would also have 
expected such an important and significant matter be expre ssly provided for.3  
8. Based on the considerations above, Norway agrees with the panel's  finding in Russia - Traffic 
in Transit  that Article XXI of the GATT 1994 was properly within its "terms of reference". However, 
rather than appropriately ending its  analysis of "justiciability" there, the panel went on to address 
Russia's argument that, nonetheless, the invocation of Article XXI(b)(iii) is "non -justiciable", because 
the terms of the provision are "self -judging".  
9. Norway does not consider that the i ssue relates to the "justiciability" of the security 
exceptions. To recall, "justiciability" relates to whether the panel has the authority, or jurisdiction, 
to make an assessment under the relevant security exception provision, as a threshold  issue. If th e 
panel finds it has jurisdiction, it must exercise its jurisdiction by addressing the merits of the 
respondent`s invocation of the security exception provision at issue, in light of the legal standard.  
10. Under this framework, a panel's interpretation o f the subparagraphs of Article XXI(b) and the 
equivalent provision in the TRIPS Agreement, i.e. the subparagraphs of Article 73(b), is properly 
part of its assessment of the merits of the defence. It is not part of its assessment of whether it has 
jurisdic tion in the first place.  
11. Thus, in Norway's view, the assessment of "justiciability" of the security exception provision 
in the TRIPS Agreement should stop at the conclusion that nothing in the DSU or the 
TRIPS  Agreement excludes Article 73 from the or dinary dispute settlement rules and procedures. 
If Article 73 is "within the Panel's terms of reference for the purpose of the DSU", then this, alone, 
grants the panel's jurisdiction over Article 73. Indeed, once the panel interprets the terms of 
Article  73, it is already exercising its jurisdiction over that provision.  
12. Having regard to the above considerations, Norway finds that Article 73 is justiciable, which 
follows from relevant terms of the DSU. We consider that an interpretation of the terms of 
Article 73(b)(i) -(iii) properly belongs under the panel's substantive analysis of the merits, and not 
under the analysis of "justiciability".  
III. BURDEN OF PROOF  
13. The security exception in Article 73(b) justifies violations of the TRIPS agreement, under  
certain limited conditions. As mentioned above, this provision is properly understood as an 
affirmative defence . A respondent invoking an affirmative defence bears the burden of proving that 
the applicable conditions are met. If the respondent does not ta ke on that burden, beyond invoking 
an exception, a panel should not proceed to consider the merits of the exception.  
14. Hence, if the complainant establishes that a measure imposed by the respondent is 
inconsistent with the provisions of the TRIPS Agreem ent, and the respondent does not make a prima 
facie case that those measures are justified under Article 73, the panel must, as a matter of law, 
rule in favour of the complainant.  
15. In our view, the panel in Russia – Traffic in Transit  failed, in effect , to treat Article XXI(b) of 
the GATT 1994 as an affirmative defence. This resulted in reversing the burden of proof, obliging 
the complainant to adduce evidence and arguments that the measures were not plausibly connected 
to the articulated essential secu rity interest. The panel found, however, that the measures were 
justified, but without requiring the respondent to make its case, either in presenting arguments or 
 
3 The "justiciability" of the security exceptions is also supported by the GATT Council Decision Concerning 
Article XXI of the General Agreement, 30 November 1982, L/5426, which states that "[w]hen action is taken 
under Article XXI, all [Members] aff ected by such action retain their full rights under the General Agreement", 
without carving out rights under Articles XXII and XXIII.  WT/DS567/R/Add.1  
 
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  evidence. Norway finds that the panel in that dispute erred in not seeing the burden of proo f as 
resting on the respondent.  
16. Summing up, if a respondent invoking the security exception in Article 73(b) does not meet 
the burden to show that the conditions for justification under this provision are met, the panel must, 
by default, find that the measures are not justified.  
 WT/DS567/R/Add.1  
 
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  ANNEX C -9 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE RUSSIAN FEDERATION* 
I. INTRODUCTORY  
1. Distinguished Chair, members of the Panel, the Russian Federation appreciates the 
opportunity to present its views as a third party in this dispute.  
2. Russia does not take a specific position on the measures at issue or on the particular facts 
presented by the parties. Rather, Russia will share its views on issue that is of systemic interest for 
it, i.e. correct and consistent interpretation and application of provisions of Article 73 of the 
Agreement on Trade Related Aspects of Intellectual Pro perty Rights ("the TRIPS Agreement").  
II. WHETHER  THE  PANEL  SHOULD  DECLINE  TO PROCEED  FURTHER   
4. The task before the Panel is, in fact, not ordinary or easy one. Article 73 of the 
TRIPS  Agreement has never been invoked by Members and interpreted by the p anels before.  
5. Russia considers that security exceptions under Article 73 of the TRIPS Agreement and XXI of 
the GATT 1994 have identical wording and, thus, similar consideration should be applied to them. 
Article XXI of the GATT 1994 was recently interp reted by the panel in Russia – Traffic in Transit.  
6. The fact that security exceptions were analyzed only once in the past underlines the 
importance of these exceptions and shows that the Members/Contracting Parties had traditionally 
refrained from bringing challenges of the highly sensitive security -based p olitical measures to the 
WTO adjudication.  
7. On this occasion, we would like to caution that issues raised in the current dispute should be 
handled with great care considering potentially destabilizing consequences, while stressing the 
importance and sen sitivity of the issues related to protection of national security.  
8. Russia believes that the Panel in present dispute cannot decline to proceed further and 
consider the dispute based on the same considerations the panel in "Russia - Traffic in Transit" 
applied when rejecting the claims by the Russian Federation that the panel in that dipute lacks 
jurisdiction due to Russia's invocation of the provisions of the GATT Article XXI.  
9. For the reasons put forward by the Panel in "Russia - Traffic in Transit" th e invocation of 
security exceptions under Article 73 of the TRIPS Agreement is in the Panel's terms of reference and 
the Panel cannot avoid but proceed further in this dispute.  
III. SECURITY  EXCEPTIONS  
12. Russia believes that nevertheless Article 73 of t he TRIPS Agreement is in the Panel's terms of 
reference, the only issue the Panel is in a position to objectively establish is whether the measures 
at issue fall within the circumstances provided by this Article - a particular subparagraph of 
paragraph (b)  of the said Article.  
13. The text of Article 73 has following structure: chapeau ("nothing in this agreement shall be 
construed"), list of actions which "nothing in this agreement shall be construed" to prevent (in this 
case – "to prevent a Member from t aking any action which it considers necessary for the protection 
of its essential security interests") and circumstances under which actions could be taken (in this 
case – "taken in time of war or other emergency in international relations").  
14. Chapeau of this Article completely differs from chapeau of any other exceptions, like Article  XX 
of the GATT. In the wording of chapeau of Article 73.b of the TRIPS Agreement there is no limiting 
 
* Russia requested its oral statement to be used as its executive summary.  WT/DS567/R/Add.1  
 
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  conditions under which the measure applied shall fall. On the contra ry, the chapeau provides that 
there could be no limitations in the Agreement for the specific purposes provided by that Article.  
15. As previously noted, the words of the chapeau of Article 73 of the TRIPS Agreement are 
followed by the list of actions. In  the present case the relevant action is under subparagraph b – to 
take any action which it considers necessary for the protection of its essentially security interests. 
Russia notes that the plain wording allows a Member to apply any action which it consi ders 
necessary for the protection of its essentially security interests. Therefore, establishing subjective 
standard of evaluation of the measures necessary for protection of its essentially security interests 
the wording in this part of the Article author izes a Member to determine itself which actions are 
necessary for it to protect its essentially security interests and excludes any objective examination 
or evaluation by adjudicative body.  
16. Therefore, Russia believes that it is within the discretion o f the State alone to determine what 
the essential security interests for the State are and what measures are necessary for their 
protection. Should a Member consider certain actions necessary for the purpose of protection of its 
essential security interest s, the declaration thereof by that Member is enough to satisfy the 
requirements of Article 73(b) of the TRIPS Agreement. Neither the WTO panels nor the organization 
itself has the right to consider, inter alia , what the essential security interests for the  Member are 
and what measures are considered by the Member to be necessary to protect those security interests 
as these aspects are the issues of sovereignty of the States, which could not be reviewed under the 
organization created for the purposes of regu lating international trade.  
17. However, Article 73 of the TRIPS Agreement also contains three enumerated subparagraphs 
qualifying the circumstances under which the measures could be applied. The wording in this 
subparagraphs does not establish any subject ive standard. On the contrary, it establishes situations 
that should be established by the adjudicative body in order the measures taken for security reasons 
could be justified by the provisions of this Article.   
18. As was established by the panel in Russia- Traffic in transit  "as the existence of an emergency 
in international relations is an objective state of affairs, the determination of whether the action was 
"taken in time of" an "emergency in international relations" under subparagraph (iii) of GATT  Article 
XXI(b) is that of an objective fact, subject to objective determination".1  
19. "Taken in time of" establishes the connection between the actions and particular emergency 
in international relations. The Panel in Russia - Traffic in transit understands this phrase to require 
that the action be taken during the war or other emergency in international relations. This 
chronological concurrence is also an objective fact, amenable to objective determination.2 
20. Therefore, Article 73 of the TRIP S Agreement provides certain circumstances, restrict 
application of the measures to three distinct settings, which should be met in order to justify the 
measures under specific exceptions.  
21. To sum up, Russia considers that there are only two elements f or the Panel to establish: 
1) whether the action is taken "in time of war or other emergency in international relations"; 
2) whether it is not implausible to consider that a WTO member indeed considers the action as 
necessary for the protection of its esse ntial security interests. The second element refers to the 
discretion of the WTO member, which is taking action under Article 73 of the TRIPS.  
IV. CONCLUDING  REMARKS  
29. Russia would like again notice that the Panel is in a difficult situation of striking a proper 
balance.  
 
 
 
 
 
1 Panel Report, Russia – Traffic in transit , paras. 7.77.  
2 Para. 7.70  WT/DS567/R/Add.1  
 
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  ANNEX C -10 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SINGAPORE  
I. INTRODUCTION  
1. This dispute raises novel issues concerning the interpretation of Article 73 of the Agreement 
on Trade -Related Intellectual Property Rights (the TRIPS Agreement). Singapore attaches great 
importance to upholding an open, stable and predictable rules -based multilateral trading system. 
Singapore is also a hub for the protection and commercialisation of intellectual property. This Panel's 
decision on the interpretation of Article 73 of the TRIPS Agreement would also have a direct impact 
on the interpretation o f WTO security exceptions provisions that are in pari materia , and may have 
broader implications for the multilateral trading system. Accordingly, Singapore has great interest 
in the interpretation and application of the treaty provisions at issue in this dispute, particularly 
Article 73 of the TRIPS Agreement.  
2. Singapore has no comment on the merits of the claims and defences raised by the parties to 
the dispute, nor on any underlying political or security dispute. Singapore's third party participation 
in this dispute is strictly confined to the legal interpretation of the relevant treaty language.  
II. EXECUTIVE SUMMARY OF SINGAPORE'S THIRD PARTY ORAL STATEMENT  
3. In Russia – Traffic in Transit , the panel interpreted Article  XXI(b)(iii) of the General Agreement 
on Tariffs and Trade 1994 (GATT 1994) in the context of certain prohibitions on goods traffic -in-
transit. Singapore generally agrees with that panel's analysis of Article  XXI(b)(iii) of the GATT 1994.  
4. Article 73 of the TRIPS Agreement is virtually identical to Article XXI of the GATT 1994. While 
treaty provisions have to be interpreted in their context, the Russia – Traffic in Transit  panel's 
approach leaves sufficient room for an interpretation of Article 73 that is sensitive to the co ntext of 
the TRIPS Agreement. Accordingly, the approach in Russia – Traffic in Transit  can be used to 
interpret Article 73 of the TRIPS Agreement.  
5. In a case where Article 73 of TRIPS Agreement is invoked because Members have severed 
diplomatic and consu lar relations, the obligation of "good faith" in the Russia – Traffic in Transit  
panel's analysis of "essential security interest "— which encompasses the invoking Member's duty to 
"articulate " its essential security interests — may assume a particular impo rtance. In Singapore's 
view, this element of the Russia – Traffic in Transit  panel's approach preserves a balance between 
the reality that Members must have domestic policy space to safeguard essential security interests, 
and what is required for the WTO d ispute settlement system to perform its function "in providing 
security and predictability to the multilateral trading system " under Article 3.2 of the Dispute 
Settlement Understanding (DSU). As the Russia – Traffic in Transit  panel put it:  
The obligation of good faith requires that Members not use the exceptions 
in Article XXI [in pari materia  with Article 73 of the TRIPS Agreement ] as a 
means to circumvent their obligations under the GATT 1994 [ which, in the 
present dispute, would equate to the TRIPS Agre ement ]. … It is therefore 
incumbent on the invoking Member to articulate the essential security 
interests said to arise from the emergency in international relations 
sufficiently enough to demonstrate their veracity1. 
6. The severance of diplomatic and co nsular relations is not, in and of itself, "an emergency in 
international relations " within the meaning of Article 73( b)(iii) of the TRIPS Agreement. In that 
regard, the analysis at paragraph 7.76 of the Panel Report in Russia – Traffic in Transit  is a useful 
way to think about the concept of "emergency in international relations2". It may be that there are 
 
1 Panel Report, Russia – Traffic in Transit , paras. 7.133 -7.134. (emphasis added)  
2 "An emergency in international relations would, therefore, appear to refer generally to a situation of 
armed conflict, or of latent armed  conflict, or of heightened tension or crisis, or of general instability engulfing 
or surrounding a state. Such situations give rise to particular types of interests for the Member in question, i.e. WT/DS567/R/Add.1  
 
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  facts underlying or leading to such a severance in relations which could qualify as an "emergency in 
international relations ". However, these facts, as well as the temporal relation between the Member's 
measure and that "emergency ", need to be articulated, to facilitate proper consideration under 
Article 73 of the TRIPS Agreement, in the context of the dispute settlement system to which all WTO 
Members have agreed under the DSU.  
III. EXECUTIVE SUMMARY OF SINGAPORE'S RESPONSES TO PANEL QUESTIONS TO 
THIRD PARTIES  
A. Response to Question 1 (order of analysis)  
7. In Canada – Wheat Exports and Grain Imports , the Appellate Body stated that "in each cas e 
it is the nature of the relationship between two provisions that will determine whether there exists 
a mandatory sequence of analysis which, if not followed, would amount to an error of law3". Although 
the provision at issue in Canada – Wheat Exports an d Grain Imports was Article XVII of the 
GATT  1994, the Appellate Body's statement was framed as having general application, and can 
consequently be applied in the present case. As such, the Panel must look to the provisions of the 
TRIPS Agreement underlyin g the substantive claims, on the one hand, and to Article  73 of 
the TRIPS  Agreement, on the other, in order to ascertain the nature of their relationship, so as to 
determine if there exists a "mandatory sequence of analysis ". 
8. In the present dispute, the substantive provisions upon which Qatar bases its claims set out 
the substantive obligations under the TRIPS Agreement. Article 73, on the other hand, is an 
exceptions provision. The appropriate relationship between the two type s of provisions would 
therefore be a "substantive provision – exceptions " relationship, where the exception constitutes an 
affirmative defence that is raised to justify an established violation of a substantive provision.  
9. Accordingly, such a relationshi p would warrant analysing the complainant's substantive claims 
before analysing the defence: i.e., whether the security exception was rightly invoked. If there is no 
violation of the substantive provisions to begin with, it is not necessary to analyse the invocation of 
the security exception. Adopting this sequence of analysis would not, however, preclude a panel 
from proceeding, in an appropriate case, to assess whether a security exception has been rightly 
invoked, such as where it is clear that the secur ity exception would have applied in the circumstances 
even if there was a violation of a substantive provision.  
B. Response to Question 6 (Article 73 of the TRIPS Agreement)  
10. There is no support for an automatic right of retaliation in the text of Artic le 73 of the 
TRIPS  Agreement, or in any of the other security exceptions provisions of the WTO Agreements in 
pari materia  with Article 73. Such a reading of Article 73, would, in effect, give Members a right to 
retaliate as long as that provision is invoke d. This outcome would undermine the predictability 
afforded by the rules -based multilateral trading system of the WTO, and upset the balance of rights 
and obligations established under the WTO Agreements, including through the DSU.  This is why it 
remains i mportant to have a neutral arbiter, such as panels and the Appellate Body, including in 
cases where security exceptions are invoked.  
11. Moreover, under the WTO framework, there is a range of remedies available under the DSU 
to a Member which has succeeded on its claim before a panel. DSU Article 19.1 provides for the 
panel or Appellate Body (a) to make recommendations to the Member found to have violated a 
covered agreement to bring the measure in conformity with the agreement, and (b) to suggest ways 
in which the Member could implement those recommendations. DSU Article 22 further provides for 
mechanisms such as negotiation and voluntary compensation from the non -compliant Member in 
specific situations. A wrongful invoking of Article 73 of the TRI PS Agreement is not necessarily 
remedied by retaliatory measures, which are, in any event, regulated under the WTO system.  
 
defence or military interests, or maintenance of law and public order interests " (Panel Report, Russia – Traffic 
in Transit , para. 7.76, footnotes omitted).  
3 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 109.  WT/DS567/R/Add.1  
 
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  C. Response to Question 7 (connection between "action" and "essential security 
interests")  
12. In Russia – Traffic in Transit , the panel explained how a Member's broad discretion to 
designate particular concerns as "essential security interests" is circumscribed, through the 
application of the obligation of good faith:  
The obligation of good faith requires that Members not use the exc eptions 
in Article XXI as a means to circumvent their obligations under the 
GATT  1994. A glaring example of this would be where a Member sought to 
release itself from the structure of "reciprocal and mutually advantageous 
arrangements" that constitutes the  multilateral trading system simply by 
re-labelling trade interests that it had agreed to protect and promote within 
the system, as "essential security interests", falling outside the reach of 
that system.  
It is therefore incumbent on the invoking Member t o articulate the essential 
security interests said to arise from the emergency in international relations 
sufficiently enough to demonstrate their veracity.  
What qualifies as a sufficient level of articulation will depend on the 
emergency in international relations at issue . In particular, the Panel 
considers that the less characteristic is the "emergency in international 
relations" invoked by the Member, i.e. the further it is removed from armed 
conflict, or a situation of breakdown of law and public order  (whether in the 
invoking Member or in its immediate surroundings), the less obvious are 
the defence or military interests, or maintenance of law and public order 
interests, that can be generally expected to arise. In such cases, a Member 
would need to art iculate its essential security interests with greater 
specificity than would be required when the emergency in international 
relations involved, for example, armed conflict4.  
13. Implicit in this approach is that a panel should assess the invoking Member 's articulation of 
its essential security interests in a logical and contextual way. What this entails is that, to the extent 
that it is required for a proper assessment of an invoking Member's measures, a panel may look at 
the measures in totality.  
14. However, Singapore does not agree that the "overall action" to be assessed is the action of  
"severing diplomatic and economic relations". What is required in the present case is an articulation 
of how the various measures alleged to be substantive violation s of the TRIPS Agreement, seen in 
totality, bear a connection with the "emergency in international relations".  
D. Response to Question 8 (jurisdiction)  
15. Before April 1989, the positive consensus rule applied to the establishment of dispute 
settlement pa nels, the setting of their terms of reference, and the adoption of panel reports. The US 
– Nicaraguan Trade  GATT Panel Report must therefore be understood in that specific institutional 
context.5 Moreover, and in any event, the panel's terms of reference in US – Nicaraguan Trade 
"stipulated that the Panel could not examine or judge the validity of or the motivation for the 
invocation of Article XXI( b)(iii) [of the GATT 1947, in pari materia with A rticle 73( b)(iii) of the 
TRIPS  Agreement " (citing GATT Panel Report, US – Nicaraguan Trade , paragraph 5.3).  
16. In the present case, there have been no changes to the Panel's standard terms of reference 
applicable pursuant to DSU Article 7.1.  In this regar d, paragraph 51 of the Appellate Body Report in 
Mexico – Taxes on Soft Drinks is relevant to the Panel's assessment of this issue:  
Under Article 11 of the DSU, a panel is…charged with the obligation to 
"make an objective assessment of the matter before it,  including an 
 
4 Panel Report, Russia – Traffic in Transit , paras. 7.132 -5. (emphasis added)  
5 See also Panel Report, Russia – Traffic in Transit , fn 155.  WT/DS567/R/Add.1  
 
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  objective assessment of the facts of the case and the applicability of and 
conformity with the relevant covered agreements." Article 11 also requires 
that a panel "make such other findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in the covered 
agreements." It is difficult to see how a panel would fulfil that obligation if 
it declined to exercise validly established jurisdiction and abstained from 
making any finding on the matter before it6.  
In line with this reasoning, the Panel may not decline to exercise its jurisdiction in the present 
dispute.  
 
17. Singapore is unaware of any prior GATT or WTO cases in which a panel or the Appellate Body 
declined to make any findings on the ground that the re was no "trade dispute " or that "no 
satisfactory settlement " was possible. In any event, the present case would prima facie  appear to 
involve a trade dispute, as one party has alleged substantive violations of the TRIPS Agreement.  
 
E. Response to Question 5 (Article 61 of the TRIPS Agreement)  
 
18. It was argued that the scope of the obligations conferred upon WTO Members in th e first 
sentence of  Article 61 of the TRIPS Agreement should be interpreted as requiring Members not only 
to "write down criminal procedures and penalties in their criminal laws", but "to actually apply  those 
procedures and penalties, particularly in egreg ious cases of conduct that qualifies as a crime7".  
19. Singapore's view is that Article 61 does not support this argument. Article 61 merely obliges 
Members to criminalise wilful trademark counterfeiting or copyright piracy on a commercial scale, 
and to provide for the availability of criminal procedures and penalties in such cases. In China – 
Intellectual Property Rights , the panel did not fin d a duty to prosecute. The panel's findings were 
expressly "confined to the issue of what acts of infringement must be criminalised and not those 
which must be prosecuted8". As a matter of logic, it follows that Article 61 does not require Members 
to acti vely prosecute all cases of wilful trademark counterfeiting and copyright piracy on a 
commercial scale. Members retain the discretion, under their respective national laws, to decide 
whether to proceed with prosecution in a particular case.  
IV. CONCLUSION  
20. The Panel has jurisdiction to consider a Member's invocation of Article 73 of the 
TRIPS  Agreement. In this regard, the approach to WTO security exceptions language taken in Russia 
– Traffic in Transit  is instructive, and may be applied in th e present case. An invoking Member's 
discretion to designate particular concerns as "essential security interests " is broad, but it is also 
circumscribed through the obligation of good faith. Singapore does not agree that the severance of 
diplomatic and co nsular relations, in and of itself, constitutes "an emergency in international 
relations" within the meaning of Article 73( b)(iii) of the TRIPS Agreement.  
21. Article 73 of the TRIPS Agreement does not give affected Members a right to retaliate as long 
as that provision is invoked.  Under the WTO framework, there exists a range of remedies available 
under the DSU to a Member which has succeeded on its claim before a panel. In Singapore's view, 
this approach is what is required by the language of Article 73, which, in turn, reflects the balance 
that has been struck between maintaining the integrity of a rules -based multilateral trading system 
and preserving Members' ability to protect their essential security interests.  
  
 
6 Appellate Body Report, Mexico – Taxes on Soft Drinks,  para. 51. (emphasis original)  
7 Qatar's first written submission, paras. 419 -424. (emphasis original)  
8 Panel Report, China – Intellectual Property Rights , paras. 7.596 -7. WT/DS567/R/Add.1  
 
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  ANNEX C -11 
INTEGRATED EXECUTIVE SUMMAR Y OF THE ARGUMENTS OF UKRAINE  
I. JURISDICTION OF A PANEL TO REVIEW INVOCATION OF "SECURITY 
EXCEPTIONS " PROVISION  
1. Ukraine wishes to note that the texts of Article 73 of the Agreement on Trade -Related Aspects 
of Intellectual Property Rights ( "TRIPS Agreement ") and of Article XXI of the General Agreement on 
Tariffs and Trade 1994 ( "GATT 1994 ") (or the equivalent provision in Article XIV bis of the General 
Agreement on Trade in Services ( "GATS ")) use the same language.  
2. In Australia – Apples  the Appe llate Body highlighted that, by virtue of Article II:2 of the 
Marrakesh Agreement Establishing the World Trade Organization ( "WTO Agreement "), all WTO 
provisions, regardless of what WTO agreement they are a part of, constitute context relevant to the 
interpretation of the other.1  
3. Therefore, application of the provisions of Article 73 of the TRIPS Agreement are to be 
interpreted in the same manner as Article XXI of the GATT 1994 or Article XIV bis of the GATS.2 
4. The Panel in Russia – Traffic in Transi t concluded that it has jurisdiction to determine whether 
the requirements of Article XXI of the GATT 1994 are satisfied.3 In particular, the Panel reasoned 
that due to the absence in the Understanding on Rules and Procedures Governing the Settlement of 
Disputes ( "DSU") of any special or additional rules of procedure applying to disputes involving 
Article  XXI of the GATT 1994, respondent 's invocation of "security exceptions " provision "is within 
the Panel 's terms of reference for the purposes of the DSU "4. In Ukraine 's view, this conclusion is 
constant.  
5. The Panel in Russia – Traffic in Transit  farther states that it follows from the Panel 's 
interpretation of the "security exceptions " provision, as vesting in panels the power to review 
whether the requi rements of the enumerated subparagraphs are met, rather than leaving it to the 
unfettered discretion of the invoking Member, that such provision is not totally "self-judging ".5  
6. Besides, Article 3.2 of the DSU recognizes that the dispute settlement sys tem: (i) is a "central 
element 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 ". 
7. In light of the above, Ukraine considers that to pres erve the rights and obligations of Members 
under the WTO covered agreements the Panel has jurisdiction to examine and make findings and 
recommendations with respect to each of the provisions of the covered agreements cited by either 
party, including Articl e 73 of the TRIPS Agreement.  
II. ORDER OF ANALYSIS, BURDEN OF PROOD AND THE PRINCIPLE OF "GOOD FAITH " 
8. Ukraine fully recognizes the special nature of security interests covered by the "security 
exceptions " provision, and the need for a margin of discreti on for the Member invoking these 
exceptions. However, such discretion cannot be unfettered, since that could give rise to abuse.  
9. With respect to order of analysis, Ukraine 's view is that what findings to address first – on the 
complainant 's claims of violation or on the respondent 's justifications under the "security exceptions " 
provision, is secondary matter. What constitutes a primary importance is that the Panel addresses 
both issues fully and objectively irrespectively of the order of analysis, at least to enable, for 
 
1 Appellate Body Report, Australia – Apples , para. 173, footnote 285.  
2 Panel Report, Russia – Traffic in Transit,  para. 7.20. 
3 Ibid, paras. 7.104, 8.1.  
4 Ibid, para. 7.56.  
5 Ibid, para. 7.102.  WT/DS567/R/Add.1  
 
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  instance, the Appellate Body to complete the legal analysis in case of the reversion of any findings 
during the Appellate review.  
10. In Ukraine 's view, a panel must examine whether (i) the interests or reasons advanced by a 
defendant WTO Member for imposing the measures fall within the scope of the phrase "its essential 
security interests "; and whether (ii) the measures are directed at safeguarding a defendant 
Member 's security interests, meaning that there is a rational relationship between the action taken 
and the protection of the essential security interest at issue.  
11. In order to prevent a Member from "releasing itself from the structure of "reciprocal and 
mutu ally advantageous system arrangements " that constitutes the multilateral trading system "6, 
the Panel in Russia – Traffic in Transit  refers to obligation to act in a good faith as one of the general 
principles of law and a principle of general internationa l law in particular7.    
12. The Panel in Russia – Traffic in Transit  further concludes that the obligation of good faith 
"applies not only to the Member 's definition of the essential security interests said to arise from the 
particular emergency in inter national relations, but also, and most importantly, to their connection 
with the measures at issue "8. 
13. Ukraine agrees with the panel on this approach. In Ukraine 's view, the Panel in the present 
case has to examine, taking into account the structure, c ontent and design of the measure, whether 
there is a rational relationship between the action taken and the protection of the essential security 
interest at issue.  
14. Ukraine submits that what qualifies as a sufficient level of articulation will depend, f or 
example, on the emergency in international relations at issue9. A Member would need to define 
connection of the essential security interests with the measures at issue, thus the measures at issue 
meet a minimum requirement of plausibility in relation t o the essential security interests.10  
15. Ukraine would also like to emphasize that Article 73 of the TRIPS Agreement lays down an 
affirmative defence of measures, which would otherwise be inconsistent with an obligation under the 
TRIPS Agreement. Accord ingly, it is for the respondent to invoke the provision of "affirmative 
defence " and the respondent will bear the burden of proving that the applicable conditions are met.  
16. It follows that a successful defence requires the respondent to justify each suc h aspect of each 
measure that is found to be inconsistent with the TRIPS Agreement. That means that every 
justification must be specific to the aspect of the measure giving rise to a specific finding of 
inconsistency with the TRIPS Agreement.  
III. RELIANCE  ON ARTICLE 73(A) OF THE TRIPS AGREEMENT  
17. Ukraine would like to emphasize that reading paragraphs (a), (b) and (c) together shows that 
Article 73 of the TRIPS Agreement covers both measures taken unilaterally by a WTO Member and 
measures taken in accord ance with the multilateral rules established in the UN Charter. Thus, on 
the one hand, in accordance with Article 73(a) and (b) of the TRIPS Agreement, a WTO Member may 
decide what information it considers to require protection from disclosure and what act ion to take 
for protecting its essential security interests. On the other hand, pursuant to Article 73(c) of the 
TRIPS Agreement, the obligations under the UN Charter determine what action must or may be 
taken. The use of the phrase "which it considers nec essary " in paragraphs (a) and (b) makes that 
distinction explicit.  
18. At the same time, Article 73(a) of the TRIPS Agreement addresses a situation distinct from 
that covered under Article 73(b) of the TRIPS Agreement. Article 73(a) of the TRIPS Agreement 
describes action that may not be required of a Member, and Article 73(b) of the TRIPS Agreement 
describes action which a Member may not be prevented from taking, notwithstanding that Member 's 
 
6 Panel Report, Russia – Traffic in Transit , para. 7.133.  
7 Ibid, para. 7.132.  
8 Ibid, para. 7.138.  
9 Ibid, para. 7.135.  
10 Ibid, para. 7.138.  WT/DS567/R/Add.1  
 
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  obligations under TRIPS Agreement.11 Article 73(a) of the TRIPS  Agreement may be invoked by a 
WTO Member in order to justify not complying with information and transparency obligations found 
in the TRIPS Agreement. However, Article 73(a) of the TRIPS Agreement may not be used to avoid 
burden of proof, set under Articl e 73(b) of the TRIPS Agreement. Such combination would lead to 
justifying deviation from a Member 's obligations under the TRIPS Agreement without any possibility 
of reviewing such deviation under dispute settlement.  
19. Therefore, Ukraine is of a view that  reliance on Article 73(a) of the TRIPS Agreement in order 
to evade from burden of proof when invoking "security exceptions " provision pursuant to 
Article  73(b) of the TRIPS Agreement is ill -reasoned and distorts the meaning behind provisions, set 
out in Article 73 of the TRIPS Agreement.  
  
 
11 See Panel Report, Russia – Traffic in Transit,  para. 7.61.  WT/DS567/R/Add.1  
 
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  ANNEX C -12 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED ARAB EMIRATES  
I. INTRODUCTION  
1. The United Arab Emirates ("UAE") has an interest in the systemic legal issues at the core of 
this dispute, in particular, the interpretation and application of the security exception found in 
Article  73 of the Agreement on Trade -Related Aspects of Intellectual Property Rights 
("TRIPS  Agreement").  The UAE, like the Kingdom of Saudi Arabia ("KSA"), terminated relat ions with 
Qatar on 5 June 2017. Eight other nations also severed ties with Qatar in mid -2017, and three others 
downgraded relations.  Each made its own decision, and each implemented this action with different 
measures, but all were responding to a common emergency and threats posed by Qatar to them 
and to the international community —namely Qatar's support for extremist and terrorist groups, 
including but not limited to Hamas, Hezbollah, Al Qaeda, the Al Nusra Front, and the Muslim 
Brotherhood; its provisio n of safe haven for members of these groups and their financiers; its 
promotion of these groups and their ideology through its state -owned media outlets; and its 
interference in the internal affairs of other countries.  
2. The UAE agrees with KSA that Qatar  poses a grave threat to its essential security interests 
and agrees with the action taken by KSA.  Like KSA, the UAE has invoked the security exception in 
Article 73 of the TRIPS Agreement, as well as its almost identical counterparts in the General 
Agree ment on Tariffs and Trade 1994 ("GATT 1994") and the General Agreement on Trade in 
Services ("GATS").  This Panel's interpretation and application of Article 73 may weigh on the dispute 
between the UAE and Qatar as well as other security -related disputes t hat might come before the 
WTO 
3. This submission summarizes the UAE's views on the following issues: (i) the appropriate order 
of analysis; (ii) the interpretation of Article 73 of the TRIPS Agreement; (iii) the principle of good 
faith and plausibility; an d (iv) the applicability of Article 73 to KSA's action.  
II. ORDER OF ANALYSIS  
4. The UAE considers it appropriate for the Panel to examine first whether the security exception 
applies.  If the Panel agrees, the Panel need not proceed further, as it may exe rcise judicial economy 
and end its work there. A panel is not required to consider or decide issues that are not "absolutely 
necessary to dispose of the particular dispute".1 By addressing the all -encompassing security 
exception first, this Panel can avoi d making findings that are ultimately unnecessary to resolve the 
dispute, and which engage sensitive matters of State sovereignty and security.   
5. Such an approach would be consistent with the Russia – Traffic in Transit  panel's approach.  
In that disput e, the panel chose to examine first whether the "security exception" under Article XXI 
of the GATT 1994 —the GATT equivalent to Article 73 of the TRIPS Agreement —was satisfied before 
addressing the GATT violation claims made by the complaining party. Specif ically, the panel 
reasoned that an evaluation of whether measures are covered by Article XXI(b)(iii), having been 
taken during a time of "war or other emergency in international relations", does not require a prior 
determination that they would be WTO -inconsistent had they been taken in normal times. As a 
result, the Russia – Traffic in Transit  panel found that an analysis of the WTO -consistency of the 
challenged measures would be required only if it were to conclude, as a threshold matter, that the 
securit y exception had not been successfully invoked.  In the UAE's view, this finding makes clear 
that the order of analysis taken by that panel was not simply a product of the jurisdictional manner 
in which Russia raised its Article XXI defence.  
6. This order o f analysis is also consistent with the Understanding on Rules and Procedures 
Governing the Settlement of Disputes ("DSU"). While Articles 7.2 and 11 may define the scope of 
the "matter" before a panel, this does not mean that a panel must always begin its analysis with the 
claims of the complaining party or that it must resolve each and every one of those claims. Rather, 
it is well -established that panels may exercise judicial economy with respect to claims that are 
properly within the panels' terms of refe rence. The UAE agrees with the need to preserve parties' 
 
1 Appellate Body Report, US – Wool Shirts and Blouses , p. 19.  WT/DS567/R/Add.1  
 
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  rights under the DSU in connection with a potential appeal.  However, the UAE considers that these 
rights can be adequately preserved even if the Panel begins its analysis under Article 73. Therefore , 
the Panel would not act inconsistently with Article 7.2 or 11 if it were to begin its analysis with 
Article  73 of the TRIPS Agreement and if it were to eventually exercise judicial economy with respect 
to the complaining party's substantive claims.  
7. A panel that confirms that Article 73 applies provides prompt resolution of the dispute in 
accordance with Article 3.3 of the DSU, even if it does not make findings on each of the claims of 
violation raised by the complaining party. The objective of providin g security and predictability found 
in Article 3.2 of the DSU is also met because there is a determination that the action taken by the 
invoking Member is permissible under the circumstances and may continue while the emergency 
persists.  Thus, a panel fin ding that Article 73 is applicable and, as a consequence, exercising judicial 
economy with respect to the claims of the complaining party would provide less security and 
predictability.  
III. INTERPRETATION OF ARTICLE 73 OF THE TRIPS  AGREEMENT  
8. The essen tial security interests of WTO Members prevail over the trade interests protected by 
the WTO agreements. This hierarchy between security and trade interests is clearly reflected in 
Article 73 of the TRIPS Agreement, as well as in similar security exception s in the GATT 1994 and 
the GATS. The UAE notes that some Members argue that mere invocation of a security exception is 
sufficient to preclude further review by a panel. If this Panel agrees with that position, it can end 
the matter there.  
9. Should the Pan el decide that it has a role in reviewing whether a Member invoking 
Article  73(b)(iii) "considers" the action in question to be "necessary for the protection of its essential 
security interests ... in a time of war or other emergency in international relat ions", then it must be 
mindful of the breadth and deference that Article 73 (as well as the parallel security exceptions in 
the GATT 1994 and GATS) afford an invoking Member. The breadth of these exceptions is reflected 
in their shared opening phrase: "[n] othing in this Agreement shall be construed ... to prevent any 
contracting party from taking any action...". This language is all -encompassing and makes clear that 
"any action" of a WTO Member that falls within its terms is permissible, notwithstanding all  other 
provisions in the TRIPS Agreement.2   
10. The unusual breadth of Article 73 is further confirmed by the phrase "it considers necessary" 
in paragraph (b), which requires a panel to assess whether a challenged "action" taken by a Member 
is "necessary " from the perspective of that Member. The words "it considers necessary" make plain 
that a panel cannot substitute its judgment for that of the invoking Member with regard to what 
might or might not have been "necessary". As the  Russia – Traffic in Transi t panel found, to give the 
clause "which it considers" legal effect, the panel must leave it to the implementing Member to 
determine whether the action was "necessary".3 
11. Furthermore, Article 73 allows each WTO Member to define "essential security inte rests" for 
itself.  As the Russia – Traffic in Transit  panel found, what a State considers relevant in protecting 
itself from external or internal threats depends on the particular situation and perceptions of that 
State and will vary with changing circums tances.  For these reasons, that panel found that the WTO 
allows each Member to define what it considers to be "its essential security interests".4 
12. KSA has referred to subparagraph (iii) of Article 73, which provides that the exception applies 
to acti ons "taken in time of war or other emergency in international relations".5  The terms "taken 
in time of" describe a temporal link between the "action" taken to protect essential security interests 
and the "other emergency in international relations". In this respect, the Russia – Traffic in Transit  
panel observed that the terms "taken in time of" require that the action be taken "during the war or 
other emergency in international relations".6  This temporal requirement must be distinguished from 
 
2 See Panel Report, Russia –Traffic in Transit , para. 7.61.  
3 Panel Report, Russia – Traffic in Transit , para. 7.146.   
4 Panel Report, Russia – Traffic in Transit , para. 7.131.  
5 The Kingdom of Saudi Arabia 's first written submission, para . 7. 
6 Panel Report, Russia – Traffic in Transit , paras. 7.69 -7.70 (emphasis in original).  WT/DS567/R/Add.1  
 
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  the narrower "relationship of ends and means" required by the terms "relating to", w hich are used 
in the other two subparagraphs of Article 73(b).7   
13. The words "or other" in subparagraph (iii) confirm that the phrase "emergency in international 
relations" is broader than "war". The placement of the words "or other" before "emergency in 
international relations" make clear that "war" is one example of an "emergency in international 
relations", but it is not the only circumstance that constitutes such an "emergency".  The French and 
Spanish versions of Article 73, which refer to "guerre ou grave tension internationale" and "guerra 
o grave tensión internacional", respectively, further confirm that an "emergency in international 
relations" is not confined to a war or other armed conflict and also applies to situations of grave 
tensions amon g nations which is related to essential security interests.  The Russia – Traffic in Transit  
panel rejected the notion that such emergencies are limited to armed conflicts and instead found 
that such an emergency could also include a state of "heightened t ension or crisis, or of general 
instability engulfing or surrounding a state" which can relate to "defence or military interests" as 
well as "maintenance of law and public order interests".8   
14. The UAE considers that an "emergency in international rela tions" refers to a serious, 
unexpected and possibly dangerous situation involving the interactions of two or more countries or 
in how they regard and engage with each other, which is related to essential security interests.  
Thus, a panel should not apply a rigid, unbending standard in examining whether an "emergency in 
international relations" exists. Rather, a panel must take into account the perspective and position 
of one Member in light of its relationship with another, and must conduct its examination  from the 
vantage point of the Member claiming the existence of an emergency and the impact on its essential 
security interests.       
IV. THE PRINCIPLE OF GOOD FAITH AND PLAUSIBILITY  
15. The UAE recognizes that the broad scope of the security exceptions creates a risk of abuse 
and could allow Members to attempt to justify impermissible trade protectionism in the guise of 
security. The Russia – Traffic in Transit  panel, when acknowledging t he deference afforded to 
Members in determining what actions they may take "for the protection" of their "essential security 
interests", qualified this deference by referring to the obligation of good faith as a general principle 
of international law.9  In the words of the panel, "this obligation is crystallized in demanding that the 
measures at issue meet a  minimum requirement of plausibility in relation to the proffered essential 
security interests, i.e. that they are not implausible as measures protecti ve of these interests."10 
16. Insofar as the Panel were to consider the Russia – Traffic in Transit  discussion of plausibility 
instructive here, the UAE would invite the Panel to consider that the plausibility formulation of the 
Russia – Traffic in Transi t panel sets a very low bar —it merely must not be implausible that the 
challenged measures are protective of the relevant security interests. Moreover, as the Appellate 
Body has explained, Members are presumed to act in "good faith".11  In the context of the security 
exceptions, the invoking Member would, at most, need to articulate how its action plausibly protects 
its essential security interests. If it does so, the complaining Member bears the burden of providing 
facts and arguments that sufficiently de monstrate the implausibility of the invoking Member's 
position and rebut the presumption of good faith. The invoking Member need not affirmatively prove 
the negative.  
17. Additionally, the UAE recalls that the phrase used in the English version of the secu rity 
exceptions is "any action  which it considers necessary for the protection of its essential security 
interests" (emphasis added). As a result, the UAE considers that, in the current context, any 
plausibility connection should most appropriately be asse ssed between the overall "action" taken by 
the invoking Member and the protection of "its essential security interests". In the UAE's view, the 
term "action" in Article 73 refers to the response of the invoking Member to the war or other 
emergency in inter national relations. This response can be, and often is, multi -faceted. In such 
emergency circumstances, a Member cannot be expected to calibrate each individual element of its 
 
7 Panel Report, Russia – Traffic in Transit , para. 7.69 (citing Appellate Body Reports, US – Shrimp, para. 
136; China – Raw Materials, para. 355; and China – Rare Ea rths, para. 5.90).  
8 Panel Report, Russia –Traffic in Transit , para. 7.76.  
9 Panel Report, Russia –Traffic in Transit , para. 7.132.  
10 Panel Report, Russia – Traffic in Transit , para. 7.138  
11 Appellate Body Report, EC – Sardines , para.  278.  WT/DS567/R/Add.1  
 
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  response to the particular threat faced. Where a Member takes broad "action" tha t may be comprised 
of individual measures, the approach to plausibility must necessarily consider the overall action.   
18. There is no textual basis in Article 73 to require a connection between individual measures, in 
isolation from and outside of the co ntext of the overall action, and the emergency and associated 
security interests at issue.  Doing so would also ignore the careful balance struck between the WTO's 
trade mission and the exceptional considerations of State sovereignty. Thus, for example, wh ere the 
central action taken is the termination of diplomatic and economic relations, plausibility would 
involve consideration of whether there is a connection between the termination of relations as a 
whole and the security interests or emergency at issue . If the Panel applies the plausibility test to 
"measures" (e.g. limiting access to a port), as opposed to the overall "action" (i.e. the termination 
of relations), this can only be to consider a plausible connection between the "action" and 
"measures"  – i.e. if limiting access to a port is plausibly connected to the termination of relations 
(which itself must be plausibly connected to the emergency).  
V. THE UAE  AGREES THAT KSA  TOOK ACTION IT CONSIDERED NECESSARY FOR THE PROTECTION OF ITS 
ESSENTIAL SECURITY  INTERESTS IN TIME OF AN OTHER EMERGENCY IN INTERNATIONAL RELATIONS  
19. The UAE respectfully submits that the Panel has an ample basis to find that KSA has properly 
invoked Article 73 (b)(iii), which provides that the exception applies to actions "taken in  time of war 
or other emergency in international relations".12  Such an "emergency" exists in the present dispute, 
as is well -evidenced by the actions taken by KSA, the UAE, and other States. The genesis for KSA's 
and the UAE's termination of relations --Qatar's support of terrorists and extremists, its propagation 
of hate speech, and its meddling in the internal affairs of other nations —threatened the security of 
KSA and other nations in the region, including the UAE.   
20. That action is a direct response  to the threat to its essential security interests caused by 
Qatar's refusal to cease supporting terrorism, to prevent the propagation of hate speech, and to stop 
interfering in the internal affairs of its neighbors. These are matters that the internationa l community 
agrees constitute serious security threats, and with respect to which Qatar has international 
obligations.13 The UAE is firmly convinced that removing Qatar as a source of funding and support 
for terrorist groups, stopping the dissemination of  hate speech by Qatari state -owned entities, and 
putting an end to Qatari impact on the internal affairs of its neighbours will improve security in the 
UAE and the region.  
21. In November 2013, the UAE and other GCC States entered into the first of three agreements 
with Qatar, which came to be collectively known as the Riyadh Agreements.14 In the first Riyadh 
Agreement, Qatar and the rest of the GCC States agreed to stop all support for extremist groups 
seeking to destabilise the region as well as the use  of state media to spread extremist ideology and 
harm neighboring countries. When Qatar refused to comply with the Agreement, the UAE withdrew 
its Ambassador from Doha in 2014, and KSA and Bahrain did the same. The Ambassadors did not 
return until two more  agreements were concluded later that year. The second Riyadh Agreement 
expressly identified the "threat" to security and stability posed to the GCC countries by the Muslim 
Brotherhood, and set forth detailed obligations amplifying the original prohibition  against interfering 
in the internal affairs of other States. The third Riyadh Agreement provided that, in the event of a 
breach by one State party, the other State parties would be entitled to take appropriate action that 
they "deem necessary to protect t he security and stability of their countries."15  A breach would 
include any direct or indirect support to "any person or media apparatus that harbors inclinations 
harmful" to any GCC State. It also identified Al Jazeera as a state -owned media outlet whos e 
propaganda was harming other GCC States' security and stability.  
22. As a party to the Riyadh Agreements, Qatar was fully aware that its policies contributed to 
what all GCC States had previously agreed were serious threats in the region and for GCC Memb er 
States and that, if it continued, it could face severe consequences. Rather than correcting its 
 
12 The Kingdom of Saudi Arabia 's first written submission, para. 7.  
13 Qatar is expressly bound by, inter alia , the Riyadh Agreements, the International Convention for the 
Suppression of the Financing of Terrorism, UN Security Council Resolutions (including Resolutions 1373 (2001), 
2161 (2014), 2133 (2014), 2199 (2015) and 2368 (2017)),and the International Convention on the Elimination 
of All Forms of Racial Discrimination.  
14 Exhibit ARE -1. 
15 Third Riyadh Agreement, Article  4 (Exhibit ARE -1). (emphasis add ed) WT/DS567/R/Add.1  
 
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  misconduct, Qatar's Foreign Ministry moved to terminate the Riyadh Agreements in February 2017.16  
Qatar's effort to repudiate the agreements made clear tha t Qatar had no intention to comply with 
them.   
23. Qatar's impact on the essential security interests of the UAE through its support for terrorist 
groups, its propagation of hate speech through its state -owned media, and its impact on the internal 
affairs  of its neighbours are all well -documented. For present purposes, the UAE provides some 
illustrative examples:  
• In 2014, the UAE declared al Islah a terrorist group.17 Qatar is among al Islah's main 
supporters, having hosted meetings to support the group, provided training programs to its 
members, and provided members of the organisation shelter in Qatar.18   
• In 2017, Mahmoud Al Jaidah, a member of the Muslim Brother hood who was involved 
in plots against the UAE, disclosed his ties with Qatar, providing details of Qatar's role as an 
incubator of the Muslim Brotherhood and its support and financing of fugitive members of 
the organisation.19 
• Internationally designated terror financiers, such as Khalifa Muhammad Turki al -Subaiy 
and Abd Al -Rahman al -Nu'aymi, continue to reside in Qatar and to raise funds with impunity 
in Qatar's borders.20 
24. Qatar also has been repeatedly involved in multi -million dollar ransom payments to terrorists. 
This includes when, in April 2017, Qatari officials traveled to Iraq on a Qatar Airways plane, carrying 
with them hundreds of millions of dollars in ransom payments to deliver to a number of known 
terrorists.21 The UN Security Council has condemned the role of ransom payments, stating that they 
"create[] more victims and perpetuate[]" terrorism and are "one of the sources of income which 
supports [terrorists'] recruitment efforts [and] strengthens [terrorists'] o perational capability to 
organize and carry out terrorist attacks".22 Indeed, terrorists' use of ransom payments as a 
fundraising strategy is "today's greatest source of terrorist funding and the most challenging terrorist 
financing threat" apart from exp licit state sponsorship.23 Accordingly, the UN has explicitly called 
upon "all Member States to prevent terrorists from benefiting directly or indirectly from ransom 
payments",24 including by freezing assets of designated terrorists, and that these oblig ations apply 
regardless of how or by whom the ransom is paid.25 Unfortunately, Qatar has failed to heed the UN's 
warnings.  
25. For these reasons, the UAE concluded that it was necessary to protect its essential security 
interests by terminating relations with Qatar, including in order to induce Qatar to cease these 
unlawful activities. On 5 June 2017, the UAE issued a Declaration announcing that the UAE was 
terminating relations with Qatar.  The Declaration indicates on its face that the UAE took its actio ns 
after determining that they were necessary for the security and stability of the UAE, the GCC, and 
the region.26  The UAE specifically noted in the Declaration that the actions were a result of Qatar's 
failure to abide by the Riyadh Agreements, Qatar's  continued support, funding and hosting of terror 
groups, and Qatar's sustained endeavors to promote terrorist ideologies across its direct and indirect 
media. The fact that the UAE, KSA and several other countries terminated relations with Qatar, in 
 
16 Exhibit ARE -3. 
17 Reuters, UAE Lists Muslim Brotherhood as Terrorist Group  (15 November 2014) (Exhibit ARE -4). 
18 UAE Ministry Foreign Affairs & International Cooperation,  New Documentary Reveals Doha 's Secret 
Files to Sabotage Gulf States  (29 July 2017) (Exhibit ARE -4). 
19 Extra News: Documentary film reveals fQatar secret files , English Transcript (28 July 2017) 
(Exhibit  ARE-4). 
20 UN Sanctions Commmittee on ISIL (Da 'esh), Al -Qaida and Associated Individuals, Groups, 
Undertakings and Entities, List ing QDi.253 and Listing QDi.334 (Exhibit ARE -4). 
21 Washington Post, Hacked Messages Show Qatar Appearing to Pay Hundreds of Millions to Free 
Hostages (28 April 2018) (Exhibit ARE -5). 
22 S/RES/2133 (Exhibit ARE -5); S/RES/2368, sec. 26 (Exhibit ARE -5). 
23 Cohen: Confronting New Threats (“Even so, the magnitude and scale of this crime -terror nexus has 
reached new heights with the spread of kidnapping -for-ransom (KFR) as a fundraising strategy. Apart from 
state sponsorship, KFR is today 's greatest source of te rrorist funding and the most challenging terrorist 
financing threat.”) (Exhibit ARE -5). 
24 S/RES/2133 (Exhibit ARE -5). 
25 S/RES/2199 (Exhibit ARE -5). 
26 UAE 5 June Declaration (Exhibit ARE -6). WT/DS567/R/Add.1  
 
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  and o f itself, indicates the gravity of the situation. There are few circumstances in international 
relations short of war that constitute a more serious state of affairs.27 
  
 
27 See Saudi Arabia 's first written submission, paras. 3 and 6. WT/DS567/R/Add.1  
 
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  ANNEX C -13 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES  
EXECUT IVE SUMMARY OF THE U.S.  THIRD PARTY SUBMISSION  
I. TRIPS  ARTICLE 73(B), WHICH MIRRORS ARTICLE XXI( B) OF GATT  1994,  IS SELF-JUDGING  
1. Article 73(b) of TRIPS mirrors Article XXI(b) of the GATT 1994, and the text of both provisions, 
in its context, establish es that these exceptions are self -judging. As both provisions state, "nothing" 
in the agreement shall be construed to prevent a WTO Member from taking "any action" which "it 
considers necessary" for the protection of its essential security interests. This text establishes that 
(1) "nothing" in the agreement prevents a Member from taking any action needed to protect an 
essential security interest, and (2) the action necessary for the protection of its essential security 
interests is that which the Member "co nsiders necessary" for such protection.   
2. The French and Spanish texts of Article 73(b) likewise confirm the self -judging nature of this 
provision.  Specifically, use of the subjunctive in Spanish ("estime") and the future with an implied 
subjunctive mo od in French ("estimera") support the view that the action taken reflects the beliefs 
of the WTO Member, rather than an assertion of objective fact that could be subject to debate.  
3. The context of TRIPS Article 73(b) also supports this understanding.  Fi rst, the phrase "which 
it considers necessary" is present in TRIPS Article 73(a) and 73(b), but not in 73(c). The selective 
use of this phrase highlights that, under Article 73(a) and 73(b), it is the judgment of the Member 
that controls. The Panel should recognize and give meaning to such deliberate use of the phrase 
"which it considers" in Article 73(b), and not reduce these words to inutility.  
4. Second, the context provided by GATT 1994 Article XX supports the understanding that TRIPS 
Article 73(b) —like GATT Article XXI(b) —is self -judging. GATT 1994 Article XX sets out "general 
exceptions," and a number of subparagraphs of Article XX relate to whether an action is "necessary" 
for some listed objective. Unlike TRIPS Article 73(b) and GATT Article XXI(b), however, none of the 
Article XX subparagraphs use the phrase "which it considers" to introduce the word "necessary." 
Furthermore, Article XX includes a chapeau which subjects a measure qualifying as "necessary" to 
a further requirement of, essentially, non -discrimination. Notably, such a qualification, which 
requires review of a Member's action, is absent from TRIPS Article 73 and GATT  1994 Article XXI.  
5. Third, a number of provisions of the GATT 1994 and other WTO agreements refer to action 
that a Member "considers" appropriate or necessary, and —as in Article XXI(b) —this language signals 
that a particular judgment resides with that Member. For example, under Article  18.7 of the 
Agreement on Agriculture, "[a]ny Member" may bring to the attention of t he Committee on 
Agriculture "any measure which it considers ought to have been notified by another Member."  
Similarly, GATS Article III(5) permits "[a]ny Member" to notify the Council for Trade in Services of 
any measure taken by another Member which "it considers affects" the operation of GATS.  
Numerous other provisions of WTO agreements include similar language and thereby vest particular 
considerations with a WTO Member, a panel, the Appellate Body, or another entity. As in 
TRIPS  Article 73(b), the tex t of such provisions makes clear that the judgment of whether a situation 
arises is left to the discretion of the named actor.  
6. By way of contrast, and further context, in at least two WTO provisions the judgment of the 
named actor is expressly subject t o review through dispute settlement. DSU Article 26.1 permits the 
institution of non -violation complaints, subject to requirements including that the panel or Appellate 
Body agree with the judgment of the complaining party. Thus, in this provision, Members  explicitly 
agreed that it is not sufficient that "[a] party considers" a non -violation situation to exist, and 
accordingly, a non -violation complaint is subject to the additional check that "a panel or the Appellate 
Body determines that" a non -violation s ituation is present. A similar limitation —that a "party 
considers and a panel determines that" —was agreed in DSU Article 26.2 for complaints of the kind 
described in GATT 1994 Article XXIII:1(c). This context is highly instructive. No such review of a 
Memb er's judgment is set out in TRIPS Article 73(b). Accordingly, Members did not agree to subject 
a Member's essential security judgment to review by a WTO panel.  WT/DS567/R/Add.1  
 
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  EXECUTIVE SUMMARY OF THE U.S.  ORAL STATEMENT  
I. Proper Interpretation Of TRIPS Article 73(b)  
7. Under DSU Article 3.2, a panel is to apply customary rules of interpretation of 
public  international law to the text of the covered agreements; these rules establish that 
TRIPS  Article 73(b) is self -judging.  That is, each WTO Member has the right  to determine, for itself, 
what it considers necessary for the protection of its own essential security interests.  
8. TRIPS Article 73(b) mirrors GATT 1994 Article XXI(b). The text and context of 
TRIPS  Article  73(b) supports an understanding that the provi sion is self -judging. First, in the 
chapeau, the ordinary meaning of the terms "it considers" establishes the self -judging nature of this 
provision.  The word "consider[]" means "[r]egard in a certain light or aspect; look upon as." Under 
Article  73(b), th e relevant "light" or "aspect" in which to regard the action is whether that action is 
necessary for the protection of the acting Member's essential security interests. Thus, reading the 
clause together, the ordinary meaning of the text indicates it is the  Member ("which it") that must 
regard ("consider[]") the action as having the aspect of being necessary for the protection of that 
Member's essential security interests.  
9. Second , it is " its essential security interests" – the Member's in question – that the action is 
taken for the protection of.  Therefore, it is the judgment of the Member that is relevant.  Each WTO 
Member must determine whether certain action involves "its interests," that is, potential detriments 
or advantages from the perspective of t hat Member. Each WTO Member likewise must determine 
whether a situation implicates its "security" interests (not being exposed to danger), and whether 
the interests at stake are "essential," that is, significant or important, in the absolute or highest 
sense. By their very nature, these questions are political and can only be answered by the Member 
in question, based on its specific and unique circumstances, and its own perception of those 
circumstances.  
10. Third, the text of subparagraphs (i) to (iii) of  Article 73(b) also supports the self -judging 
nature of this provision.  As an initial matter, these subparagraphs lack any conjunction – such as 
the cumulating conjunction "and," or the coordinating conjunction "or" – to specify their relationship 
to each  other. The absence of any conjunction here suggests that each of the subparagraphs (i) to 
(iii) must be considered for its relation to the chapeau of Article 73(b).   
11. Subparagraphs (i) and (ii) – which discuss fissionable materials and traffic in arms , 
respectively – both begin with the phrase "relating to" and directly follow the phrase "essential 
security interests." Subparagraphs (i) and (ii) thus illustrate the types of "essential security 
interests" that Members considered could lead to action und er Article 73(b).   
12. Subparagraph (iii) of Article 73(b), by contrast, begins with temporal language "taken in time 
of."  This language echoes the reference to "taking any action" in the chapeau of Article 73(b), as it 
is actions  that are "taken," and n ot interests.  Thus, the temporal circumstance in subparagraph (iii) 
modifies the word "action," rather than the phrase "essential security interests." Accordingly Article 
73(b)(iii) reflects a Member's right to take action it considers necessary for the p rotection of its 
essential security interests when that action is taken in time of war or other emergency in 
international relations.  
13. Subparagraphs (i) to (iii) of Article 73(b) thus reflect that Members wished to set out certain 
types of "essential se curity interests" and a temporal circumstance that Members considered could 
lead to action under Article 73(b).  A Member taking action pursuant to Article 73(b) would consider 
its action to be necessary for the protection of the interests identified in su bparagraphs (i) and (ii), 
or to be taken in time of war or other emergency in international relations as set forth in 
subparagraph (iii).  In this way, the subparagraphs (i) to (iii) guide a Member's exercise of its rights 
under Article 73(b) while reservi ng to the Member the judgment whether particular action is 
necessary to protect its essential security interests.  
14. This interpretation of Article 73(b) is also established by the subsequent agreement of the 
parties in the context of the United States Ex port Measures dispute between the United States and 
Czechoslovakia.  WT/DS567/R/Add.1  
 
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  15. In brief, in that dispute Czechoslovakia requested the CONTRACTING PARTIES to find that 
certain U.S. actions were inconsistent with the GATT 1947. In discussing the decision to be made  in 
the following GATT Council meeting, the Chairman opined that the question of whether U.S. 
measures conformed to GATT Article I "was not appropriately put" because the United States had 
defended its actions under the essential security exception, which "embodied exceptions" to Article  I. 
As the Chairman stated, the question before the contracting parties was whether the United States 
"had failed to carry out its obligations" under the GATT 1947. With only Czechoslovakia dissenting, 
the CONTRACTING PARTIE S found that the United States had not failed to carry out its obligations 
under the GATT.  
16. Thus, this subsequent agreement taken into account with the ordinary meaning of the terms 
of Article 73(b) confirms that, under customary rules of interpretation , TRIPS Article 73(b) leaves to 
each WTO Member to determine, for itself, what it considers necessary for the protection of its own 
essential security interests, and to take action accordingly.  
II. Negotiating History Of  TRIPS Article 73(b)  
17. The negoti ating history of the essential security exception confirms that (1) essential security 
matters are within the judgment of the acting government, and (2) a non -violation, nullification or 
impairment claim – as opposed to a claimed breach of underlying oblig ations – is the appropriate 
redress for a Member affected by an essential security action. The United States also described these 
points in its written submission.  
18. TRIPS Article 73 mirrors GATT 1994 Article XXI, and the drafting history of these provis ions 
dates back to negotiations to establish the International Trade Organization of the United Nations 
("ITO"), which proceeded alongside the GATT 1947 negotiations. In 1946, the United States 
proposed a draft charter for the ITO, which included exception s provisions that related to, among 
other things, measures taken "in time of war or other emergency in international relations, relating 
to the protection of the essential security interests of a Member."  
19. As the United States asserted at that time – in 1946 – these exceptions "afforded complete 
opportunity for the adoption of all measures regarded as necessary for the protection of national 
interests in time of war or a national emergency." In 1947, the text that became TRIPS Article 73 
was revised to s eparate the essential security exception from the "commercial" exceptions that 
became GATT 1994 Article XX, and to place the essential security exception at the end of the ITO 
Charter, so that it was broadly applicable. In addition, the essential security exception was revised 
to insert the pivotal "it considers" language, which explicitly indicates the self -judging nature of this 
provision. As the negotiators stated in November 1947, the essential security exception would permit 
members to do "whatever the y think necessary" to protect their essential security interests relating 
to the circumstances presented in that provision.  
20. Negotiators also explicitly discussed that essential security actions would not be reviewable 
for consistency with the underlyin g agreement, and that the appropriate redress for a country 
affected by such actions would be a non -violation, nullification or impairment claim. For example, at 
a July 1947 meeting, the representative of Australia withdrew an objection to the essential se curity 
provision after receiving assurance that a member affected by essential security actions would have 
redress pursuant to a non -violation, nullification or impairment claim.   
21. And in early 1948, a Working Party of representatives from Australia, India, Mexico, and the 
United States decided to retain the draft charter's non -violation, nullification or impairment provision 
because this provision "would apply to the situation of ac tion taken by a Member" to protect its 
essential security interests. As this Working Party concluded, essential security actions "would be 
entirely consistent with the Charter, but might nevertheless result in the nullification or impairment 
of benefits ac cruing to other Members." The Working Party concluded that "[s]uch other Members 
should, under those circumstances, have the right to bring the matter before the Organization, not 
on the ground that the measure taken was inconsistent with the Charter, but on the ground that the 
measure so taken effectively nullified benefits accruing to the complaining Member."   WT/DS567/R/Add.1  
 
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  III. Errors In The Russia – Traffic in Transit Panel's Report  
22. The panel in Russia – Traffic in Transit  found that it had authority to review m ultiple aspects 
of a responding party's invocation of the essential security provision at Article XXI of the GATT 1994.  
That panel's analysis is flawed for numerous reasons.  
23. First, the panel failed to apply customary rules of interpretation. The panel  acknowledged that 
the phrase "which it considers" in the chapeau "can be read to qualify . . . the determination of the 
matters described in the three subparagraphs of Article XXI(b)." The panel gave no interpretive 
weight to this plain meaning, however. Instead, that panel based its conclusion on what it termed 
the "logical structure" of the provision. The panel provided no explanation of what it considered to 
be the "logical structure" of the provision, nor did the panel explain how, consistent with cust omary 
rules of interpretation, the "logical structure" of a provision could operate to alter the ordinary 
meaning of its terms.   
24. Second , after reaching an initial conclusion based on the "logical structure" of the essential 
security exception – in onl y a few short paragraphs – the panel proceeded to examine "a similar 
logical query," that is "whether the subject -matter of each of the enumerated subparagraphs of 
Article XXI(b) lends itself to purely subjective discretionary determination." Without expla nation, the 
panel stated that it would "focus on" subparagraph (iii) and determine whether "given their nature, 
the evaluation of these circumstances can be left  wholly to the discretion of the Member invoking 
the provision, or is designed to be conducted objectively, by a dispute settlement panel."  
25. Again, that panel did not indicate the basis on which this "logical query" could lead to a correct 
interpretation of Article XXI. The panel also left unexplained why, despite the ordinary meaning of 
the text  of Article XXI – including the key phrase "it considers necessary" – the result of this inquiry 
could reveal that the evaluation of this provision is "designed to be conducted objectively." In fact, 
the text of Article XXI(a) undermines both the premise a nd the conclusion of the panel's query.  As 
that provision states "[n]othing in this Agreement shall be construed . . . to require any contracting 
party to furnish any information the disclosure of which it considers contrary to its essential security 
interests." Thus, under Article XXI(a), a Member need not provide any information – to a WTO panel 
or other Members – regarding essential security actions or the Member's underlying security 
interests.  
26. Third, the panel erred in its interpretation of the ne gotiating history of the essential security 
exception.  Among other problems in this analysis, the panel misconstrued certain statements made 
during the Article XXI negotiations, including Australia's July 1947 comments regarding the 
withdrawal of its obje ction to the essential security exception.  Specifically, the panel failed to identify 
the article to which Australia referred in those comments, not as a general dispute settlement 
provision of the GATT 1947, but as the article providing for non -violation  nullification or impairment 
claims.   
27. In addition, the panel failed to address other pertinent negotiating history, particularly the 
numerous explicit statements that confirm that the essential security exception is self -judging and 
that appropriate r edress was considered by the negotiators to be a non -violation, nullification or 
impairment claim, not a claim that a Member has breached its trade obligations.  
28. Essential security provisions, such as Article XXI of the GATT 1994 and TRIPS Article 73, 
concern matters of the utmost importance to sovereign nations.  With respect to such matters, the 
drafters – the representatives of those sovereign nations – must be respected.  As even the Russia 
– Traffic in Transit panel understood, the meaning and gramm atical construction of the provision 
"can be read" to vest in each Member the sole determination of what " it considers necessary  for the 
protection of its essential security interests ." Had that panel conducted its analysis consistent with 
customary rules of interpretation, this is the meaning of the essential security exception that the 
panel would have discerned. It would risk grave damage to the WTO and its dispute settlement 
system were panels to attempt to needlessly second guess the decision by any WT O Member to take 
action it considers necessary for the protection of its essential security interests.  WT/DS567/R/Add.1  
 
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  EXECUTIVE SUMMARY OF THE U.S.  RESPONSES TO PANEL QUESTIONS TO THIRD PARTIES  
29. Response to Question 1 : The Panel should begin its analysis by addressin g Saudi Arabia's 
invocation of TRIPS Article 73(b). This order of analysis is consistent with the Panel's terms of 
reference and the function of panels as set forth in the DSU.  
30. Under DSU Article 7.1, the standard terms of reference – which were used in  this dispute – 
call on the Panel "[t]o examine . . . the matter referred to the DSB" by the claimant, and "to make 
such findings as will assist the DSB in making the recommendations or in giving the rulings provided 
for in the covered agreements." As this  text establishes, the Panel has two functions: (1) to 
"examine" the matter – that is, to "[i]nvestigate the nature, condition or qualities of (something) by 
close inspection or tests"; and (2) to "make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for" in the covered agreement.  
31. DSU Article 11 confirms this dual function of panels, and similarly provides that the function 
of panels is to "make an objective assessment of the matter" before it, 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."  As DSU Article 19.1 provides, these "recommendations" are issued "[w]here 
a panel or the Appellate Body conclude s that a measure is inconsistent with a covered agreement" 
and are recommendations "that the Member concerned bring the measure into conformity with the 
agreement." DSU Article 19.2 clarifies that "in their findings and recommendations, the panel and 
Appel late Body cannot add to or diminish the rights and obligations provided in the covered 
agreement."  
32. The text of TRIPS Article 73(b), however, establishes that it is for a responding Member to 
determine whether the actions it has taken are necessary for the protection of its own essential 
security interests. Consistent with the text of that provision, a panel may not second -guess a 
Member's determination.  Accordingly, when a respondent has invoked its essential security interests 
under Article 73(b) as t o a measure challenged before the DSB, a panel may make no findings that 
will assist the DSB in making recommendations or giving rulings as to a complaining Member's 
claims, within the meaning of DSU Articles 7.1 and 11.  
33. This result is consistent with DSU Article 19.1 and 19.2 because an essential security measure 
cannot be found by a panel or the Appellate Body to be inconsistent with a covered agreement, and 
because it would diminish the "right" of a Member to take action it considers necessary for th e 
protection of its essential security interests for a panel or the Appellate Body to purport to find such 
action inconsistent with a covered agreement.  
34. If the Panel finds that Saudi Arabia has invoked Article 73(b) as to the measures challenged, 
the P anel should limit the findings in its report to a recognition that Saudi Arabia has invoked its 
essential security interests.  
 
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