WT/DS499/AB/R  
 
4 February 2020  
(20-0831) Page: 1/85 
  Original: English  
 
 
RUSSIA – MEASURES AFFECTING THE IMPORTATION OF R AILWAY 
EQUIPMENT AND PARTS THEREOF  
AB-2018-7 
Report of the Appellate  Body 
 WT/DS499/AB/R  
 
- 2 - 
 
  Table of Contents  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  10 
2   ARGUMENTS OF THE  PARTICIPANTS  ................................ ................................ .........  13 
3   ARGUMENTS OF THE  THIRD PARTICIPANTS  ................................ ..............................  14 
4   ISSUES RAISED  ................................ ................................ ................................ .........  14 
5   ANALYSIS OF THE APPELLATE  BODY  ................................ ................................ .........  14 
5.1   Russia's claims relating to the Panel's preliminary ruling  ................................ .................. 14 
5.1.1    The Panel's findings  ................................ ................................ ................................ .15 
5.1.2   Claims and arguments on appeal  ................................ ................................ ............... 17 
5.1.3    Whether the Panel erred in finding in its preliminary ruling that Russia had failed to  
establish that Ukraine's panel request was inconsistent with Article  6.2 of the DSU  .................... 19 
5.1.3.1    Linkages between measures and legal basis of the complaint  ................................ .....21 
5.1.3.2    Identification of the third measure  ................................ ................................ .......... 22 
5.1.4    Conclusion  ................................ ................................ ................................ .............. 25 
5.2   Russia's  claims concerning the Panel's findings relating to the third measure  ..................... 25 
5.2.1    The Panel's findings  ................................ ................................ ................................ .25 
5.2.2    Russia's claim that the Panel erred in finding the existence of the third  measure  ............. 28 
5.2.2.1    Arguments on appeal  ................................ ................................ ............................ 28 
5.2.2.2   Analysis  ................................ ................................ ................................ ............... 29 
5.2.2.3    Conclusion  ................................ ................................ ................................ ........... 32 
5.2.3    Russia's claim that the Panel erred by relieving Ukraine from the necessity of  
establishing a prima  facie case that the third measure exists as a single measure  ...................... 32 
5.2.3.1    Arguments on appeal  ................................ ................................ ............................ 32 
5.2.3.2   Analysis  ................................ ................................ ................................ ............... 33 
5.2.3.3    Conclusion  ................................ ................................ ................................ ........... 34 
5.2.4    Russia's claim that the Panel erred in finding that the third measure was within its  
terms of reference  ................................ ................................ ................................ ............. 34 
5.2.4.1    Arguments on appeal  ................................ ................................ ............................ 34 
5.2.4.2   Analysis  ................................ ................................ ................................ ............... 36 
5.2.4.3    Conclusion  ................................ ................................ ................................ ........... 37 
5.2.5    Russia's claim that the Panel erred by making findings with respect to the alleged 
registration condition  ................................ ................................ ................................ .......... 37 
5.2.5.1    Arguments on appeal  ................................ ................................ ............................ 37 
5.2.5.2    Analysis  ................................ ................................ ................................ ............... 37 
5.2.5.3    Conclusion  ................................ ................................ ................................ ........... 41 
5.3   Ukraine's claim under Arti cle 5.1.1 of the TBT  Agreement  ................................ ................ 41 
5.3.1    The Panel's findings  ................................ ................................ ................................ .41 
5.3.2    Claims and arguments on appeal  ................................ ................................ ............... 43 
5.3.3    The Panel's interpretation of Article  5.1.1 of the TBT  Agreement  ................................ ....44 
5.3.4    The Panel's application of Article  5.1.1 o f the TBT  Agreement  ................................ ........ 50 
5.3.5    Completion of the legal analysis  ................................ ................................ ................ 54 WT/DS499/AB/R  
 
- 3 - 
 
  5.3.6    Whether the Panel failed to make an objective assessment of the matter under  
Article  11 of the DSU  ................................ ................................ ................................ .......... 54 
5.3.7    Conclusion  ................................ ................................ ................................ .............. 54 
5.4   Ukraine's claim under Article  5.1.2 of the TBT  Agreement  ................................ ................ 55 
5.4.1    The Panel's findings  ................................ ................................ ................................ .55 
5.4.2    Claims and arguments on appeal  ................................ ................................ ............... 58 
5.4.3    Whether the Panel failed to make an objective assessment of the matter under  
Article  11 of the DSU with respect t o the fourth alternative measure  ................................ ........ 61 
5.4.4    Completion of the legal analysis  ................................ ................................ ................ 68 
5.4.5    Whether the Panel failed to make an objective assessment of the matter under  
Article 11 of the DSU with respect to the other alternative measures  ................................ ........ 69 
5.4.6    Conclusion  ................................ ................................ ................................ .............. 70 
5.5   Ukraine's claim concerning the existence of systematic import prevention  ......................... 71 
5.5.1    The Panel's findings  ................................ ................................ ................................ .71 
5.5.2    Claims and arguments on appeal  ................................ ................................ ............... 73 
5.5.3    Whether the Panel failed to make an objective assessment of the matter under  
Article  11 of the DSU  ................................ ................................ ................................ .......... 76 
5.5.4    Conclusion  ................................ ................................ ................................ .............. 83 
6   FINDINGS AND CON CLUSIONS  ................................ ................................ ..................  83 
6.1   The Panel's preliminary ruling  ................................ ................................ ...................... 83 
6.2   The third measure as a "general" non -recognition requirement  ................................ ........ 83 
6.3   The third  measure as a single measure  ................................ ................................ ......... 84 
6.4   The third measure and the Panel's terms of reference  ................................ ..................... 84 
6.5   The third me asure and the local registration condition  ................................ ..................... 84 
6.6   Article  5.1.1 of the TBT  Agreement  ................................ ................................ ............... 84 
6.7   Article  5.1.2 of the TBT  Agreement  ................................ ................................ ............... 85 
6.8   Systematic prevention of imports  ................................ ................................ ................. 85 
6.9   Recommendation  ................................ ................................ ................................ ........ 85 
 
  WT/DS499/AB/R  
 
- 4 - 
 
  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
ART Russian Federal Agency for Railway Transport  
Association Agreement  Association Agreement by Ukraine with the European  Union  
BCI business confidential information  
CU Eurasian Economic Union as established in accordance with the Treaty 
on Eurasian Economic Union of 29 May 2014 (former Customs Union 
of the Republic of Belarus, the Republic of Kazakhstan , and the 
Russian Federation)  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
EAEU Treaty  Treaty on the Eurasian Economic Union  
FBO Federal Budgetary Organization  
FIRA final import risk analysis report for apples from New  Zealand of 
November 2006  
GATS  General Agreement on Trade in Services  
GATT  1994 General Agreement on Tariffs and Trade 1994  
MOT Ministry of Transport  of the Russian Federation  
OHCHR  Office of the United Nations High Commissioner for Human Rights  
Panel  Report  Panel  Report , Russia – Measures Affecting the Importation of Railway 
Equipment and Parts Thereof  
SPS Agreement  Agreement on the Application of Sanitary and Phytosanitary Measures  
TBT Agreement  Agreement on Technical Barriers to Trade  
TRRs trade -related requirements  
Ukraine's panel request  Request for the Establishment of a Panel by Ukraine, WT/DS499/2  
Working Procedures  Working Procedures for Appellate Review  
WTO World Trade Organization  
 
PANEL EXHIBITS CITED  IN THIS REPORT*
 
Exhibit N umber  Description  
RUS-23 Organization Standard СTO PC -FZT 08 -2013 "Procedure of 
organization and implementation of inspection control of certified 
products " 
RUS-62 (BCI)  Documents of the FBO providing for the inconsistencies of the 
certified products of PJSC [BCI]  
RUS-63 (BCI)  Documents of the FBO providing for the inconsistencies of the 
certified products of PJSC [BCI]  
RUS-64 (BCI)  Documents of the FBO providing for the inconsistencies of the 
certified products of PJSC [BCI]  
 
* BCI redacted, as indicated  [BCI] . See also para.  1.13. WT/DS499/AB/R  
 
- 5 - 
 
  Exhibit N umber  Description  
RUS-65 (BCI)  Documents of the FBO providing for the inconsistencies of the 
certified products of PJSC [BCI]  
RUS-66 (BCI)  Documents of the FBO providing for the inconsistencies of the 
certified products of PJSC [BCI]  
RUS-67 (BCI)  Letter dated 23 May 2016 from [BCI] to the FBO  
RUS-68 (BCI)  Letter dated 1 3 June 2013 from [BCI] to the Deputy Minister of the 
MOT 
RUS-69 (BCI)  Letter dated 3 December 2015 from [BCI] to the FBO  
RUS-70 (BCI)  Letter dated 17 February 2013 from [BCI] to the FBO  
UKR-3 (Corr.)  Rules of the Certification System for Federal Railway Transport . 
Procedure for organizing and conducting an inspection control. 
(CS FRT 12 -2003)  
UKR-18 (BCI) (Corr.)  Letter  [BCI]  from PJSC [BCI]  to FBO  
UKR-48 (BCI)  Letter from the Federal Agency for Railway Transport of the MOT to 
JSC [BCI]  accompanied to Protocol No. A 4 -3 of 20 January 2015 of 
the MOT regarding issuance by the certification authority of the CU of 
the certificates of conformity for products manufactured by third  
countries  
UKR-49 (BC I) (Corr.)  Letter dated  4 February 2016  from the Federal Agency for Railway 
Transport to [BCI]  on validity of certificates  
UKR-141 (BCI)  Letter dated  10 August 2016  from the Federal Agency for Railway 
Transport to JSC [BCI] on validity of certificates  
UKR-151 (BCI)  Act of i nspection dated 23 January 2014 of certified products 
produced by PJSC [BCI]  
UKR-152 (BCI)  Act of inspection dated 24 January 2014 of certified products 
produced by PJSC [BCI]  
 
CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina  – Import  Measures  Appellate  Body Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , adopted 
26 January  2015, DSR 2015:II, p.  579 
Argentina  – Import  Measures  Panel  Reports, Argentina – Measures Affecting the Importation of Goods , 
WT/DS438/R  and Add.1 / WT/DS444/R  and Add.1 / WT/DS445/R  and Ad d.1, 
adopted 26  January  2015, as modified (WT/DS438/R) and upheld 
(WT/DS444/R / WT/DS445/R) by Appellate  Body Reports WT/DS438/AB/R / 
WT/DS444/AB/R / WT/DS445/AB/R, DSR  2015:II, p.  783 
Australia  – Apples  Appellate  Body Report, Australia – Measures Affecting the Importation of 
Apples from New Zealand , WT/DS367/AB/R , adopted 17  December  2010, DSR 
2010:V, p.  2175 
Australia  – Apples  Panel  Report, Australia – Measures Affecting the Importation of Apples from 
New Zealand , WT/DS367/R , adopted 17  December 2010, as modified by 
Appellate  Body Report WT/DS367/AB/R, DSR 2010:VI, p.  2371 
Australia  – Salmon  Appellate  Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R , adopted 6  November  1998, DSR 1998:VIII, p.  3327 
Brazil  – Desiccated  Coconut  Appellate  Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adopted 20  March  1997, DSR  1997:I, p.  167 WT/DS499/AB/R  
 
- 6 - 
 
  Short Title  Full Case Title and Citation  
Brazil  – Retreaded  Tyres  Appellate  Body Report, Brazil – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/AB/R , adopted 17  December  2007, DSR 2007:IV, p.  1527 
Canada  – Dairy 
(Article  21.5 – New Zealand 
and US II) Appellate  Body Report, Canada – Measures Affecting the Importation of Milk 
and the Exportation of Dairy Products – Second Recourse to Article  21.5 of the 
DSU by New Zealand and the United  States , WT/DS103/AB/RW2 , 
WT/DS113/AB/RW2 , adopted 17  January  2003, DSR 2003:I, p.  213 
Canada  – Periodicals  Appellate  Body Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/AB/R , adopted 30  July 1997, DSR 1997:I, p.  449 
Canada  – Wheat  Exports  and 
Grain  Imports  Appellate  Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R , adopted 27  September  2004, 
DSR 2004:VI, p . 2739 
Chile – Price Band System  
(Article  21.5 –Argentina)  Appellate  Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Recourse to Article  21.5 of the DSU 
by Argentina , WT/DS207/AB/RW , adopted 22  May 2007, DSR 2007:II, p.  513 
China  – Auto Parts Appellate  Body Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R  / WT/DS340/AB/R  / WT/DS342/AB/R , adopted 
12 January  2009, DSR 2009:I, p.  3 
China  – HP-SSST  (Japan)  / 
China  – HP-SSST  (EU) Appellate  Body Reports, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High -Performance 
Stainless Steel Seamless Tubes ("HP-SSST") from the European  Union , 
WT/DS454/AB/R  and Add.1 / WT/DS460/AB/R  and Add.1, adopted 28  October  
2015, DSR 2015:IX, p.  4573 
China  – Publications  and 
Audiovisual Products  Appellate  Body Report, China – Measures Affecting Trading Rights and 
Distribution Services for Certain Publications and Audiovisual Entertainment 
Products , WT/DS363/AB/R , adopted 19  January  2010, DSR 2010:I, p.  3 
China  – Rare Earths  Appellate  Body Reports, China – Measures Related to the Exportation of Rare 
Earths, Tungsten, and Molybdenum , WT/DS431/AB/R  / WT/DS432/AB/R  / 
WT/DS433/AB/R , adopted 29  August  2014, DSR 2014:III, p.  805 
China  – Raw Materials  Appellate  Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R  / WT/DS 395/AB/R  / WT/DS398/AB/R , 
adopted 22  February  2012, DSR 2012:VII, p.  3295 
Colombia  – Textiles  Appellate  Body Report, Colombia – Measures Relating to the Importation of 
Textiles, Apparel and Footwear , WT/DS461/AB/R  and Add.1, adopted 22  June 
2016, DSR  2016:III, p.  1131 
Dominican  Republic  – Import  
and Sale of Cigarettes  Appellate  Body Report, Dominican  Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R , adopted 19  May 
2005, DSR 2005:XV, p.  7367 
EC – Bananas  III Appellate  Body Report, European  Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R , adopted 25  September  
1997, DSR 1997:II, p.  591 
EC – Chicken  Cuts Appellate  Body Report, European  Communities  – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R , WT/DS286/AB/R , adopted 
27 September  2005, and Corr.1, DSR 2005:XIX, p.  9157 
EC – Fasteners  (China)  Appellate  Body Report, European  Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28  July 2011, DSR  2011:VII, p.  3995 
EC – Hormones  Appellate  Body Report, European  Communities – Measures Concerning Meat 
and Meat Products (Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 
13 February  1998, DSR 1998:I, p.  135 
EC – Sardines  Appellate  Body Report, European  Communities – Trade Description of 
Sardines , WT/DS231/AB/R , adopted 23  October 2002, DSR 2002:VIII, p.  3359 
EC – Seal Products  Appellate  Body Reports, European  Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18  June 2014, DSR 2014:I, p.  7 WT/DS499/AB/R  
 
- 7 - 
 
  Short Title  Full Case Title and Citation  
EC – Selected  Customs  
Matters  Appellate  Body Report, European  Communities – Selected Customs Matters , 
WT/DS315/AB/R , adopted 11  December  2006, DSR 2006:IX, p.  3791  
EC and certain  member  
States  – Large  Civil Aircraft  Appellate  Body Report, European  Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 
1 June 2011, DSR 2011:I, p.  7 
EC and certain  member  
States  – Large  Civil Aircraft  
(Article  21.5 – US) Appellate  Body Report, European  Communities and Certain Member States – 
Measures Affecting Trade in  Large Civil Aircraft  – Recourse to Article  21.5 of 
the DSU by the United  States , WT/DS316/AB/RW  and Add.1, adopted 28  May 
2018 
EU – Biodiesel  (Argentina)  Appellate  Body Report, European  Union – Anti-Dumping Measures on Biodiesel 
from Argentina , WT/DS473/AB/R  and Add.1, adopted 26  October  2016, DSR 
2016:VI, p.  2871 
Guatemala  – Cement  I Appellate  Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 25  November  1998, 
DSR 1998:IX, p.  3767 
Indonesia  – Chicken  Panel  Report, Indonesia – Measures Concerning the Importation of Chicken 
Meat and Chicken Products , WT/DS484/R  and Add.1, adopted 22  November  
2017, DSR  2017:VIII, p.  3769 
Indonesia  – Iron or Steel 
Products  Appellate  Body Report, Indonesia – Safeguard on Certain Iron or Steel 
Products , WT/DS490/AB/R , WT/DS496/AB/R , and Add.1, adopted 27  August  
2018 
Japan  – Agricultural   
Products  II Appellate  Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R , adopted 19  March  1999, DSR 1999:I, p.  277 
Japan  – DRAMS  (Korea)  Appellate  Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R  and Corr.1, adopted 
17 December  2007, DSR 2007:VII, p.  2703 
Korea  – Dairy Appellate  Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R , adopted 12  January  2000, DSR 
2000:I, p.  3 
Korea  – Pneumatic  Valves  
(Japan)  Appellate  Body Report, Korea – Anti-Dumping Duties on Pneumatic Valves 
from Japan , WT/DS504/AB/R  and Add.1, adopted 30  September  2019 
Korea  – Radionuclides  Appellate  Body Report, Korea – Import Bans, and Testing and Certification 
Requirements for Radionuclides , WT/DS495/AB/R  and Add.1, adopted 26  April 
2019 
Korea  – Various  Measures   
on Beef Appellate  Body Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/AB/R , WT/DS169/AB/R , adopted 10  January  
2001, DSR 2001:I, p.  5 
Russia  – Commercial  
Vehicles  Appellate  Body Report,  Russia – Anti-Dumping Duties on Light Commercial 
Vehicles from Germany and Italy , WT/DS479/AB/R  and Add.1, adopted 9  April 
2018 
Russia  – Pigs (EU) Appellate  Body Report, Russian Federation – Measures on the Importation of 
Live Pigs, Pork and Other Pig Pr oducts from the European  Union , 
WT/DS475/AB/R  and Add.1, adopted 21  March 2017, DSR 2017:I, p.  207 
Russia – Railway Equipment  Panel  Report, Russia – Measures Affecting the Importation of Railway 
Equipment and Parts Thereof , WT/DS499/R  and Add.1, circulated to WTO 
Members 30  July 2018 
Russia  – Tariff Treatment  Panel  Report, Russia – Tariff Treatment of Certain Agricultural and 
Manufacturing Products , WT/DS485/R , Add.1, Corr.1, and Corr.2, adopted 
26 September  2016, DSR 2016:IV, p.  1547 
Thailand  – H-Beams  Appellate  Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non -Alloy Steel and H -Beams from Poland , 
WT/DS122/AB/R , adopted 5  April 2001, DSR 2001:VII, p.  2701 
US – Anti-Dumping  and 
Countervailing Duties  (China)  Appellate  Body Report, United  States – Definitive Anti -Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R , 
adopted 25  March  2011, DSR  2011:V, p.  2869 WT/DS499/AB/R  
 
- 8 - 
 
  Short Title  Full Case Title and Citation  
US – Anti-Dumping  
Methodologies  (China)  Appellate  Body Report, United States – Certain Methodologies and Their 
Application to Anti -Dumping Proceedings Involving China , WT/DS471/AB/R  
and Add.1, adopted 22  May 2017, DSR 2017:III, p.  1423 
US – Carbon  Steel Appellate  Body Report, United  States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R  and Corr.1, adopted 19  December 2002, DSR 2002:IX, 
p. 3779 
US – Clove  Cigarettes  Appellate  Body Report, United  States – Measures Affecting the Production and 
Sale of Clove Cigarettes , WT/DS406/AB/R , adopted 24  April 2012, DSR 
2012:XI, p.  5751 
US – Continued  Zeroing  Appellate  Body Report, United  States – Continued Existence and Application of 
Zeroing Methodology , WT/DS350/AB/R , adopted 19  February  2009, DSR 
2009:III, p.  1291 
US – COOL  Panel  Reports, United  States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R  / WT/DS386/R , adopted 23  July 2012, as 
modified by Appellate  Body Reports WT/DS384/AB/R / WT/DS386/AB/R, DSR 
2012:VI, p.  2745 
US – COOL  (Article  21.5 – 
Canada  and Mexico)  Appellate  Body Reports, United  States – Certain Country of Origin Labelling 
(COOL) Requirements – Recourse to Article  21.5 of the DSU by Canada and 
Mexico , WT/DS384/AB/RW  / WT/DS386/AB/RW , adopted 29  May 2015, DSR 
2015:IV, p.  1725 
US – Corrosion -Resistant 
Steel Sunset Review  Appellate  Body Report, United  States – Sunset Review of Anti -Dumping Duties 
on Corrosion -Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R , adopted 9  January  2004, DSR 20 04:I, p.  3 
US – Countervailing  and 
Anti-Dumping Measures  
(China)  Appellate  Body Report, United  States – Countervailing and Anti -Dumping 
Measures on Certain Products from China , WT/DS449/AB/R  and Corr.1, 
adopted 22  July 2014, DSR  2014:VIII, p.  3027 
US – Countervailing  
Measures  (China)  Appellate  Body Report, United  States – Countervailing Duty Measures on 
Certain Products from China , WT/DS437/AB/R , adopted 16  January  2015, DSR 
2015:I, p.  7 
US – Gambling  Appellate  Body Report, United  States – Measures Affecting the Cross -Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R , adopted 20  April 
2005, DSR 2005:XII, p.  5663 (and Corr.1, DSR 2006:XII, p.  5475)  
US – Lamb  Appellate  Body Report, United  States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R , WT/DS178/AB/R , adopted 16  May 2001, DSR 2001:IX, 
p. 4051 
US – Large  Civil Aircraft  
(2nd complaint)  Appellate  Body Report, United  States – Measures Affecting Trade  in Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R , adopted 23  March  2012, DSR 
2012:I, p.  7 
US – Oil Country  Tubular  
Goods  Sunset Reviews  Appellate  Body Report, United  States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R , 
adopted 17  December  2004, DSR 2004:VII, p.  3257 
US – Section  211 
Appropriations  Act Appellate  Body Report, United  States – Section 211 Omnibus Appropriations 
Act of 1998 , WT/DS176/AB/R , adopted 1  February 2002, DSR 200 2:II, p.  589 
US – Tuna II (Mexico)  Appellate  Body Report, United  States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/AB/R , adopted 
13 June 2012, DSR  2012:IV, p.  1837 
US – Tuna II (Mexico)  
(Article  21.5 – Mexico)  Appellate  Body Report, United  States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products – Recourse to Article  21.5 of 
the DSU by Mexico , WT/DS381/AB/RW  and Add.1, adopted 3  December  2015, 
DSR 2015:X, p.  5133 
US – Upland  Cotton  Appellate  Body Report, United  States – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21  March  2005, DSR  2005:I, p.  3  
US – Upland  Cotton  
(Article  21.5 – Brazil)  Appellate  Body Report, United  States – Subsidies on Upland Cotton – Recourse 
to Article  21.5 of the DSU by Brazil , WT/DS267/AB/RW , adopted 20  June 
2008, DSR 2008:III, p.  809 WT/DS499/AB/R  
 
- 9 - 
 
  Short Title  Full Case Title and Citation  
US – Wheat  Gluten  Appellate  Body Report, United  States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European  Communities , WT/D S166/AB/R , 
adopted 19  January  2001, DSR 2001:II, p.  717 
US – Wool Shirts  and 
Blouses  Appellate  Body Report, United  States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23  May 1997, 
and Corr.1, DSR  1997:I, p.  323 
US – Zeroing  (EC) Appellate  Body Report, United  States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R , adopted 9  May 
2006, and Corr.1, DSR  2006:II, p.  417 
US – Zeroing  (Japan)  
(Article  21.5 – Japan)  Appellate  Body Report, United  States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article  21.5 of the DSU by Japan , 
WT/DS322/AB/RW , adopted 31  August  2009, DSR 2009:VIII, p.  3441 
 WT/DS499/AB/R  
 
- 10 - 
 
  WORLD TRADE ORGANIZATION  
APPELLATE  BODY 
 
 
Russia – Measures Affecting the 
Importation of Railway Equipment 
and Parts Thereof  
 
Ukraine, Appellant/Appellee  
Russia n Federation , Other Appellant/Appellee  
 
Canada, Third Participant  
China, Third Participant  
European  Union, Third Participant  
India, Third Participant  
Indonesia, Third Participant  
Japan, Third Participant  
Singapore, Third Participant  
United  States, Third Participant  
 AB-2018-7 
 
Appellate  Body Division:  
 
Graham, Presiding Member  
Servansing, Member  
Zhao, Member  
 
 
 
1  INTRODUCTION  
1.1.  Ukraine and the Russian  Federation (Russia) each appeal certain issues of law and legal 
interpretations developed in the Panel  Report, Russia – Measures Affecting the Importation of 
Railway Equipment and Parts Thereof1 (Panel  Report).  
1.2.  Before the Panel, Ukraine challenged certain measures allegedly taken by Russia concerning 
conformity assessment procedures for railway products as they relate to suppliers from Ukraine. 
Specifically, Ukraine's challenge concerned the fol lowing three  categories of measures:  
a. systematic prevention of Ukrainian railway products from being imported into Russia by 
suspending valid certificates issued for railway products, refusing to issue new certificates 
for railway products, and not recogniz ing certificates issued by the competent authorities 
of the member countries of the Eurasian Economic Union as established in accordance with 
the Treaty on Eurasian Economic Union of 29 May 2014 (former Customs Union of the 
Republic of Belarus, the Republi c of Kazakhstan, and the Russian Federation)  (CU) other 
than Russia, which Ukraine submitted are evidenced by the instructions and decisions 
listed in Annexes  I, II, and  III to its request for the establishment of a panel2 (systematic 
import prevention);  
b. the suspensions of certificates and the rejections of applications for new certificates with 
regard to Ukrainian producers of railway products, as listed in Annexes  I and II to the 
panel request (suspensions and rejections); and  
c. Russia's non -recognition of certificates issued under CU  Technical Regulation  001/2011 to 
Ukrainian suppliers of railway products in other CU  countries found in the documents listed 
in Annex  III to the panel request (non -recognition of certificates).3 
1.3.  In the Panel  Report, circulated to Members of the World Trade Organization (WTO) on 
30 July 2018, the Panel made the following findings that are relevant to this appeal:  
a. with respect to Russia's request for the Panel's preliminary ruling, Russia had failed to 
establish that Ukraine's pa nel request is inconsistent with Article  6.2 of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes (DSU)4; 
 
1 WT/DS499/R, 30  July 2018.  
2 Request for the Establishment of a Panel by Ukraine, WT/DS499/2 (Ukraine's panel request).  
3 Panel  Report, para.  7.225.  
4 Panel  Report, paras.  7.43, 7.104,  and 8.1.a.i.  WT/DS499/AB/R  
 
- 11 - 
 
  b. with respect to the instructions suspending certificates:  
i. Ukraine had failed to establish, with respect to each of the 14  instructions at issue, 
that Russia had acted inconsistently with its obligations under Article  5.1.1 of the 
Agreement on Technical Barriers to Trade (TBT  Agreement)5; and 
ii. Ukraine had failed to establish, with respect to each of the 14  instructions at issu e, 
that Russia  had acted inconsistently with its obligations under Article  5.1.2, first and 
second sentence s, of the TBT  Agreement6; 
c. with respect to the decisions rejecting applications for certificates:  
i. Ukraine had failed to establish, with respect to the two decisions through which the 
Federal Budgetary Organization (FBO)  Register of Certification on the Federal Railway 
Transport  "returned without consideration" applications for certificates submitted by 
Ukrainian producers under CU  Technical Regulation  001/2011, and with respect to the 
decision through which the FBO "annulled" applications for certificates submitted by a 
Ukrainia n producer under CU  Technical Regulation  003/2011, that Russia had acted 
inconsistently with its obligations under Article  5.1.1 of the TBT  Agreement7; and 
ii. Ukraine had failed to establish, with respect to both decisions through which the 
FBO "returned with out consideration" applications for certificates submitted by a 
Ukrainian producer under CU Technical Regulation  001/2011 (decision  1 insofar as it 
relates to one of the products covered by application  A3 and application  A4, and 
decision  2), and with respe ct to the decision through which the FBO "annulled" 
applications for certificates submitted by a Ukrainian producer under CU  Technical 
Regulation 003/2011, that Russia had acted inconsistently with its obligations under 
Article  5.1.2, first and second sent ences, of the TBT  Agreement8; 
d. with respect to the non -recognition of certificates issued in CU  countries other than Russia:  
i. the non -recognition requirement was properly before the Panel9; 
ii. Ukraine had established that Russia had acted inconsistently with A rticle I:1 of the 
General Agreement on Tariffs and Trade 1994 ( GATT  1994)10; and  
iii. Ukraine had established that Russia had acted inconsistently with Article  III:4 of the 
GATT  199411; and  
e. with respect to the systematic import prevention, Ukraine had failed to establish its claims 
of inconsistency with Articles  I:1, XI:1, and XIII:1 of the GATT  1994, because it had not 
demonstrated  the existence of the systematic import prevention.12 
1.4.  In addition, the Panel made a number of findings that have not been appealed. In  particular: 
(i) with respect to 13 out of 14  instructions suspending certificates, the Panel found that Ukraine 
had established that Russia had acted inconsistently with Article  5.2.2, third obligation, of the 
TBT Agreement13; (ii) with respect to one out of three decisions rejecting applications for certificates 
(decision  1 insofar as it relates to applications  A1 and A2 and one of the products covered by 
application  A3), the Panel found that Ukraine had established that Russia had acted inconsistently 
 
5 Panel  Report, paras.  7.394 and 8.1.b.i.  
6 Panel  Report, paras.  7.544 and 8.1.b.ii.  
7 Panel  Report, paras.  7.638 and 8.1.c.i.  
8 Panel  Report, paras.  7.728, 7.764, and 8.1.c.iii.  
9 Panel  Report, paras.  7.823, 7.829, and 8.1.d.i.  
10 Panel  Report, paras.  7.907 and 8.1.d.iv.  
11 Panel  Report, paras.  7.928 and 8.1.d.v.  
12 Panel  Report, paras.  7.995  and 8.1.e.i.  
13 Panel  Report, paras.  7.591 and 8.1.b.iii. For the remaining single instruction suspending certificates, 
the Panel found that Ukraine had failed to establish that Russia had acted inconsistently with Article  5.2.2 of 
the TBT  Agreement. (Ibid ., paras.  7.591 and 8.1.b.iv)  WT/DS499/AB/R  
 
- 12 - 
 
  with Article  5.1.2, first and second sentence s, of the TBT  Agreement14; (iii)  with respect to all 
three  decisions rejecting applications for certificates at issue, the Panel found that Ukraine had failed 
to establish that Russia had acted inconsistently with Article  5.2.2, second obligation, of the 
TBT Agreement15; (iv) with respect to two out of three decisions rejecting applications for certificates 
at issue, the Panel found that Ukraine had established that Russia had acted inconsistently  with 
Article  5.2.2, third obligation, of the TBT  Agreement16; (v) the Panel found that Ukraine had failed 
to establish that the non -recognition requirement falls within the scope of application of Article  2.1 
of the TBT  Agreement17; and (vi)  with respect to  the non -recognition of certificates issued in 
CU countries other than Russia, the Panel made no findings regarding Ukraine's claims under 
Articles  5.1.1 and 5.1.2 of the TBT  Agreement and Article  X:3(a) of the GATT  1994.18 
1.5.  In sum, the Panel found that Russ ia had acted inconsistently with its obligations under 
Articles  5.1.2 and 5.2.2 of the TBT  Agreement, and Articles  I:1 and III:4 of the GATT  1994, and that 
it had as a result nullified or impaired benefits accruing to Ukraine under these provisions.  Pursua nt 
to Article  19.1 of the DSU, the Panel thus recommended that the D ispute Settlement Body (DSB)  
request that Russia bring its measures at issue into conformity with its obligations under the 
TBT Agreement and the GATT  1994.19 
1.6.  On 27  August  2018, Ukraine notified the D SB, pursuant to Articles  16.4 and 17 of the DSU, of 
its intention to appeal certain issues of law covered in the Panel  Report and certain legal 
interpretations developed by the Panel and filed a Notice of Appeal20 and an appellant's submission 
pursuant to Rules  20 and 21, respectively, of the Working Procedures for Appellate Review21 
(Working Procedures). On 3  September  2018, Russia notified the DSB, pursuant to Articles  16.4 
and 17 of the DSU, of its intention to appeal certain issues of law cover ed in the Panel  Report and 
certain legal interpretations developed by the Panel and filed a Notice of Other Appeal22 and an other 
appellant's submission pursuant to Rule  23 of the Working Procedures . On 14  September  2018, 
Ukraine and Russia each filed an ap pellee's submission.23 On 17  September  2018, Canada, the 
European  Union (EU), and Japan  each filed a third participant's submission.24 China, Singapore, and 
the United  States each notified its intention to appear at the oral hearing as a third participant.25 
1.7.  On 28  September  2018, the participants and third participants were informed that, in 
accordance with Rule  15 of the Working Procedures, the Chair of the Appellate  Body had notified the 
Chair of the DSB of the Appellate  Body's decision to authorize Appellat e Body Member 
Mr Shree  Baboo Chekitan Servansing to complete the disposition of this appeal, to which he had 
been assigned before the completion of his term of office. On 9 December  2019, the participants 
and third participants were informed that, in accordance with Rule  15 of the Working Procedures, 
the Chair of the Appellate Body had informed the Chair of the DSB that Thomas R. Graham would 
complete the disposition of this appeal, t o which he had been assigned before the completion of his 
term of office  and for which the oral hearing had been held before that date .26 
1.8.  On 24  October  2018, the Chair of the Appellate  Body notified the Chair of the DSB that the 
Appellate  Body would not be able to circulate its Report in this appeal within the 60 -day period 
pursuant to Article  17.5 of the DSU, or within the 90 -day period pursuant to the same provision.27 
 
14 Panel  Report, paras.  7.727 and 8.1.c.ii.  
15 Panel  Report, paras.  7.806 and 8.1.c.iv.  
16 Panel  Report, paras.  7.785 and 8.1.c.v. For the remaining single decision rejecting applications for 
certificates at issue, the Panel found that Ukraine had failed to establish that Russia had acted inconsistently 
with Article  5.2.2, third obligation, of the TBT  Agreement. (Ibid., paras.  7.785 and 8.1.c.vi)  
17 Panel  Report, paras.  7.885 and 8.1.d.ii.  
18 Panel  Report, paras.  7.826, 7.940, 8.1.d.iii, and 8.1.d.vi.  
19 Panel  Report, para.  8.2. 
20 WT/DS499/6.  
21 WT/AB/WP/6, 16  August  2010.  
22 WT/DS499/7.  
23 Pursuant t o Rules  22 and 23(4) of the Working Procedures.  
24 Pursuant to Rule  24(1) of the Working Procedures.  
25 Pursuant to Rule  24(2) of the Working Procedures.  
26 WT/DSB/79.  
27 The Chair of the Appellate  Body referred to the size of the Panel record and the complex issues 
appealed and further noted that, in view of the backlog of appeals pending and the overlap in the composition 
of all divisions resulting in part from the reduced number of Appellate  Body Members, it would not be possible 
for the Division to focus on  the consideration of this appeal and for it to be fully staffed for some time. 
(WT/DS499/8)  WT/DS499/AB/R  
 
- 13 - 
 
  For the reasons explained in the letter, work on this appeal could gather pace only in Ju ne 2019. On 
9 December 2019 , the Chair of the Appellate  Body informed the Chair of the DSB that the Report in 
these proceedings would be circulated no later than 4 February 2020 .28 
1.9.  On 13  September  2019, the Appellate  Body received a communication from Ukrai ne requesting 
that the Division extend the time -limits for opening statements at the oral hearing. On the same 
day, the Division hearing the appeal invited Russia and the third participants to provide any 
comments on Ukraine's request by 16  September  2019.  Russia expressed support and requested 
that equal opportunity be provided to both Russia and Ukraine in the event that the Division decided 
to grant Ukraine's request. No comments were received from the third  participants. Having 
considered Ukraine's requ est and comments by Russia, the Division informed participants and third 
participants by letter of 16 September of extended time -limits for the participants' opening 
statements.  
1.10.   The oral hearing in this appeal was held on 17  and 18 September  2019. The part icipants and 
several third participants made oral statements and responded to questions posed by the Members 
of the Appellate  Body Division hearing the appeal.  
1.11.   At the oral hearing, the participants jointly requested the Division hearing the appeal to 
continue treating the information designated as business confidential information (BCI) by the Panel 
under its additional working procedures for the protection of BCI as confidential also on appeal. In 
particular, Ukraine referred to the protection of the iden tity of individual producers, information 
regarding the certificates, and the specific number of decisions at issue.29 No third participant raised 
objections in connection with this request.  
1.12.   We recall that any additional procedures adopted by the Appellate  Body to protect sensitive 
information must conform to the requirement in Rule  16(1) of the Working Procedures that such 
procedures not be inconsistent with the DSU, the other covered agreements, and the 
Working  Procedures themselves.30 Moreover, in adopting such procedures, the Appellate  Body must 
ensure that an appropriate balance is struck between the need to guard against the risk of harm 
that could result from the disclosure of particularly sensitive information, on the one hand, an d the 
integrity of the adjudication process, the participation rights of third participants, and the rights and 
systemic interests of the WTO membership at large, on the other.31 This means, among other 
considerations, that the Appellate  Body should bear in  mind the need for transparency and "the 
rights of third parties and other WTO Members under various provisions of the DSU", and should 
ensure that the public version of its report circulated to all Members of the WTO is understandable.32 
1.13.   In the circumstanc es of the present appeal, we consider that treating the relevant information 
as confidential does not unduly affect our ability to adjudicate this dispute, the participation rights 
of the third participants, or the rights and interests of the WTO  membershi p at large. We note in this 
respect the absence of comments by third  participants regarding the participant's joint request , as 
well as the rather limited information designated as BCI. Based on the foregoing, we grant the 
participants' joint request to tr eat the information designated as BCI by the Panel as confidential on 
appeal pursuant to Rule  16(1) of the Working Procedures . Accordingly , this Appellate  Body Report 
does not contain information designated as BCI by the Panel.  
2  ARGUMENTS OF THE PAR TICIPANT S  
2.1.  The claims and arguments of the participants are reflected in the executive summaries of their 
written submissions provided to the Appellate  Body.33 The Notices of Appeal and Other Appeal, and 
 
28 WT/DS499/9.  
29 Ukraine's response to questioning at the oral hearing (referring to Panel  Report, para.  7.222).  
30 Appellate  Body Report, EC and certain member Stat es – Large Civil Aircraft (Article  21.5 – US), 
Annex  D-1, Procedural Ruling of 25  October  2016, para.  10. 
31 Appellate  Body Report, US – Tuna II (Mexico) (Article  21.5 – Mexico) , para.  5.3 (referring to 
Appellate  Body Report, EC and certain member States – Large Civil Aircraft , Annex  III, Procedural Ruling of 
10 August  2010, para.  15). 
32 Appellate  Body Report, Japan – DRAMS (Korea) , para.  279. 
33 Pursuant to the Appellate  Body's communica tion on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in 
Appellate  Proceedings" (WT/AB/23, 11  March  2015).  WT/DS499/AB/R  
 
- 14 - 
 
  the executive summaries of the participants' claims and argum ents, are contained in Annexes  A 
and B of the Addendum to this Report, WT/DS499/AB/R/Add.1.  
3  ARGUMENTS OF THE THI RD PARTICIPANTS  
3.1.  The arguments of the third participants that filed a written submission (Canada, 
the European  Union, and Japan) are reflected in  the executive summaries of their written 
submissions provided to the Appellate  Body34, and are contained in Annex  C of the Addendum to 
this Report, WT/DS499/AB/R/Add.1.  
4  ISSUES RAISED  
4.1.  The following issues are raised in this appeal:  
a. in relation to the Panel's preliminary ruling (raised by Russia):  
i. whether the Panel erred in finding that Russia had failed to establish that Ukraine's 
panel request is inconsistent with Article  6.2 of the DSU;  
b. in relation to the Panel's findings with respect to the non -recognition of certificates issued 
in CU countries other than Russia, which the Panel referred to as the third measure (raised 
by Russia):  
i. whether the Panel acted inconsistently with Article  11 of the DSU in finding the 
existence of the third  measure as a gen eral non -recognition requirement flowing from 
CU Technical Regulation  001/2011;  
ii. whether the Panel acted inconsistently with Article  11 of the DSU in finding the 
third measure capable of being challenged under the DSU as a single measure;  
iii. whether the Panel acted inconsistently with Articles  6.2, 7.1, and 11 of the DSU in 
finding that the third measure was within the Panel's terms of reference;  and 
iv. whether the Panel acted inconsistently with Article  11 of the DSU in making findings 
with respect to an aspect related to the third measure that it had previously found to 
be outside its terms of reference;  
c. whether the Panel erred in its interpretation and application, and acted inconsistently with 
Article  11 of the DSU, in its analysis relating to the exist ence of a "comparable situation" 
under Article  5.1.1 of the TBT  Agreement and in finding that Ukraine failed to establish 
that Russia acted inconsistently with its obligations under Article  5.1.1 (raised by Ukraine);  
d. whether the Panel acted inconsistently  with Article  11 of the DSU in finding that Ukraine 
failed to establish that the proposed less trade -restrictive alternatives were reasonably 
available, and that Russia acted inconsistently with its obligations under Article  5.1.2 of 
the TBT  Agreement (rai sed by Ukraine); and  
e. whether the Panel acted inconsistently with Article  11 of the DSU in its assessment of the 
existence of systematic import prevention with respect to Ukraine's claims under 
Articles  I:1, XI:1, and XIII:1 of the GATT  1994 (raised by Ukra ine). 
5  ANALYSIS OF THE APPELLATE  BODY  
5.1  Russia's claims relating to the Panel's preliminary ruling  
5.1.  Russia requests us to reverse the conclusion made by the Panel in its preliminary ruling, that 
Russia had failed to establish that Ukraine's panel request is in consistent with Article  6.2 of the 
 
34 Pursuant to the Appellate  Body's communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in 
Appellate  Proceedings" (WT/AB/23, 11  March  2015).  WT/DS499/AB/R  
 
- 15 - 
 
  DSU.35 Russia alleges that , in coming to this conclusion, the Panel erred in two respects: first, in 
finding that Ukraine's panel request properly linked the measures at issue with the legal basis of its 
complaint36; and , second, in finding that Ukraine's panel request properly identified the third 
measure at issue.37  
5.2.  Ukraine, for its part, requests us to uphold the conclusions made by the Panel in its preliminary 
ruling.38 For Ukraine, first, the panel request links the meas ures at issue with the legal basis of the 
complaint in a manner sufficient to present the problem clearly39, and , second, it identified with 
sufficient clarity the third measure at issue in this dispute.40 
5.1.1   The Panel's findings  
5.3.  Russia requested a preliminary  ruling from the Panel, alleging that Ukraine's panel request 
failed to provide the legal basis of Ukraine's complaint, and that the panel request was thus not 
sufficient to present the problem  clearly, as required pursuant to Article  6.2 of the DSU. Russia  
alleged, inter alia , that Ukraine's panel request failed to identify a link between, on the one hand, 
the measures challenged by Ukraine, and the WTO obligations allegedly violated , on the other, and 
that the request failed to properly identify the third  measure at issue.41 Ukraine requested the Panel 
to reject Russia's request. In Ukraine's view, its panel request plainly connected the measures at 
issue and the relevant WTO obligations and clearly identified the third measure as required under 
Article  6.2.42 
5.4.  The Panel issued its conclusions on Russia's request to the parties on 17  July 2017.43 The Panel 
concluded that Ukraine's panel request was not inconsistent with Article  6.2, and therefore it rejected 
Russia's  claims in this respect. The Panel indicated t hat it would provide detailed reasons in support 
of its conclusions at a later date, and at the latest in the Interim Report. The Panel  Report contains 
the Panel's detailed reasons for its conclusions on Russia's request, and the conclusions circulated 
to the parties (and the third parties for information) on 17  July 2017 are also an integral part of the 
Panel  Report.44 
5.5.  First, with regard to Russia's claim that Ukraine's panel request failed to identify a link between 
the measures challenged by Ukraine, on the one hand, and the WTO  obligations allegedly violated , 
on the other, the Panel noted that it concerned all measures and all claims identified in the panel 
request.45 The Panel recalled that the Appellate  Body had held that Article  6.2 of the DSU calls for  
sufficient clarity with respect to the legal basis of the complaint, because a defending party is entitled 
to know what case it has to answer, and what violations have been alleged so that it can begin 
preparing its defence.46 The Panel also referred to th e Appellate  Body's finding that "in order to 
'present the problem clearly', within the meaning of Article  6.2, a panel request must 'plainly 
 
35 Russia's other appellant's submission, para.  162(d) (refer ring to Panel  Report, para.  8.1.a.i). In 
addition, Russia requests that, as a consequence, we also reverse the Panel's conclusions relating to the 
measures not properly identified in Ukraine's panel request. (Panel  Report, paras.  8.1.d.iv  and 8.1.d.v)  
36 Russia's other appellant's submission, paras.  3-11 (referring, inter alia , to the Panel's finding in 
para. 7.43).  
37 Russia's other appellant's submission, paras.  12-43 (referring, inter alia , to the Panel's finding in 
para. 7.104).  
38 Ukraine's appellee's sub mission, paras.  16, 37, 39, 69 -70, and 188.  
39 Ukraine's appellee's submission, paras.  16 and 19.  
40 Ukraine's appellee's submission, paras.  45-47. 
41 Panel  Report, paras.  7.2, 7.11 -7.12, and 7.87. In its request for a preliminary ruling, Russia raised 
four a dditional issues with regard to Ukraine's panel request and the obligation under Article  6.2 of the DSU to 
"present the problem clearly". Russia's appeal of the Panel's preliminary ruling does not extend to the Panel's 
findings concerning those additional allegations of error.  
42 Ukraine's appellee's submission, paras.  28 and 47.  
43 Panel  Report, para.  7.6. On the same day, the Panel's conclusions were also circulated to third parties 
for their information.  
44 Panel  Report, paras.  7.6-7.7. 
45 Panel  Report, para.  7.11. 
46 Panel  Report, para.  7.22 (quoting Appellate  Body Report, Thailand – H-Beams , para.  88; referring to 
Appellate  Body Report, EC – Selected Customs Matters , para.  168).  WT/DS499/AB/R  
 
- 16 - 
 
  connect' the challenged measure(s) with the provision(s) claimed to have been infringed so that a 
respondent can 'k now what case it has to answer, and … begin preparing its defence'."47 
5.6.  The Panel then turned to examine in detail Ukraine's panel request. The Panel noted that the 
panel request is structured in four sections. Section  I provides an overview of the backgroun d of the 
dispute. Section  II describes the measures at issue. Section  III describes Russia's relevant legal 
framework. Section  IV provides the legal basis of the complaint.48 
5.7.  Regarding section  II of the request, the Panel observed that it contains three nar rative 
paragraphs describing the measures at issue, followed by a numbered list of the measures  that 
includes references to Annexes  I, II, and III to the panel request. The Panel further noted that this 
section  ends with a concluding paragraph describing t he trade effects of the challenged measures.49 
The Panel then briefly outlined its understanding of each of the challenged measures.50  
5.8.  Turning to section  IV of Ukraine's panel request, the Panel noted that it begins with an 
introductory paragraph that reads : "the measures described in section  II are inconsistent with 
[Russia's] obligations under the following provisions of the GATT  1994 and the TBT  Agreement" and 
that this paragraph is followed by a list of 10 provisions, five  of the TBT  Agreement and five of the 
GATT  1994, each of which contains a brief description of how that provision is allegedly breached.51 
5.9.  The Panel then examined each point of section  IV of Ukraine's panel request, bearing in mind 
the description of the thr ee measures at issue in section  II of the panel request, in order to determine 
whether the panel request properly links the challenged measures with the 10 WTO provisions 
allegedly infringed.52 The Panel Report contains a table setting out the linkages betw een the claims 
raised by Ukraine and the measures at issue.53 
5.10.   Second, regarding Russia's allegation that Ukraine's panel request failed to comply with 
Article  6.2 of the DSU because it lacked a proper identification of the third measure at issue54, the 
Panel  began by noting that the text of Article  6.2 makes clear that a panel request must, inter alia, 
identify the specific measure or measures at issue, and that measures not properly identified fall 
outside a panel's terms of reference, and cannot be the subj ect of panel findings or 
recommendations.55  
5.11.   The Panel recalled that with respect to the requirement to identify the specific measures at 
issue, the Appellate  Body had said that "the measures at issue must be identified with sufficient 
precision so that wha t is referred to adjudication may be discerned from the panel request"56, and 
that a panel request will satisfy this requirement where it identifies the measure(s) at issue "with 
sufficient particularity so as to indicate the nature of the measure and the g ist of what is at issue".57 
Furthermore, the Panel noted that "there may be circumstances in which a party describes a measure 
in a more generic way, which nonetheless allows the measure to be discerned"58, and that "[a]n 
assessment of whether a complaining party has identified the specific measures at issue may depend 
on the particular context in which those measures exist and operate."59 To the Panel, this suggested 
that there is no single way that a challenged measure must be identified.60 
 
47 Panel  Report, para.  7.22 (quoting Appellate  Body Reports, Argentina – Import Measures , para.  5.39, 
in turn quoting Appellate  Body Report, US – Countervailing and Anti -Dumping Measures (China) , para.  4.8, in 
turn quoting Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  162).  
48 Panel  Repor t, para.  7.24 (referring to Ukraine's panel request).  
49 Panel  Report, para.  7.25 (referring to Ukraine's panel request, p.  2). 
50 Panel  Report, paras.  7.27-7.29. 
51 Panel  Report, para.  7.30 (referring to Ukraine's panel request, p.  3). 
52 Panel  Report, paras.  7.31-7.38. 
53 Panel  Report, para.  7.39, table  1. 
54 Panel  Report, paras.  7.2 and 7.87.  
55 Panel  Report, para.  7.90 (referring to Appellate  Body Reports, Dominican  Republic – Import and Sale 
of Cigarettes , para.  120; EC and certain member States – Large Civil Aircraft , para.  790).  
56 Panel  Report, para.  7.91 (quoting Appellate  Body Report, US – Continued Zeroing , para.  168).  
57 Panel  Report, para.  7.91 (quoting Appellate  Body Report, US – Continued Zeroing , para.  169).  
58 Panel  Report, para.  7.92 (quoting Ap pellate  Body Report, US – Zeroing (Japan) (Article  21.5 – Japan) , 
para. 116).  
59 Panel  Report, para.  7.92 (quoting Appellate  Body Report, EC and certain member States – Large Civil 
Aircraft , para.  641).  
60 Panel  Report, para.  7.92. WT/DS499/AB/R  
 
- 17 - 
 
  5.12.   More specifically regarding the question whether the third measure  had been properly 
identified in Ukraine's panel request, the Panel noted that this measure was addressed in the 
third narrative paragraph, the three numbered points, and Annex  III and that these various 
references must be read together.61 Ultimately, the Panel concluded that Ukraine's panel request 
identified the challenged measure in a manner that satisfies the requirements of Article  6.2 of the 
DSU and thus rejected Russia's request to find otherwise.62 
5.1.2   Claims and arguments on appeal  
5.13.   On appeal, Russia submits that the Panel erred in two respects: first, in finding that Ukraine's 
panel request properly linked the measures at issue with the legal basis of its complaint63; and 
second, in finding that Ukraine' s panel request properly identified the third measure at issue.64  
5.14.   Regarding the first point, Russia submits that the Panel misread the Appellate  Body Report s 
in China – Raw Materials . In particular, Russia takes issue with the Panel's finding that "section  IV 
of Ukraine's panel request contains a list of the ten WTO provisions allegedly infringed, together with 
an explanation of why Ukraine deems each provision inconsistent with the measures at issue."65 
Russia alleges that section  IV of the panel request at  issue fails to properly connect specific 
WTO obligations with the measures corresponding to them.  
5.15.   Furthermore, Russia draws attention to the Panel's statements that certain items in section  III 
of Ukraine's panel request " could  relate" to or "could  concer n" a corresponding measure contained 
in section  II of the panel request.66 For Russia, the Panel's use of "weak auxiliary verbs"  reveals 
that, in fact, the linkages between the measures and the legal obligations were not as clear as the 
Panel found.67 Had Uk raine plainly connected the challenged measures with the provisions of the 
covered agreements claimed to have been infringed, the Panel would not have needed to have 
recourse to language "inappropriately leaving the room for hesitations and speculations".68 
5.16.    Russia further alleges that the Panel misunderstood its argument pertaining to the fact that 
Ukraine eventually dropped certain claims. Russia did not seek to curtail Ukraine's right to decide 
which claims to pursue in the course of the dispute. However,  coupled with a lack of clarity in linking 
the measures at issue with the legal obligations concerned, Ukraine's decision not to pursue certain 
claims  rendered unclear to Russia what the dispute was in fact about, until the time of the first 
written submis sion to the Panel . While Ukraine's panel request "arguably outlines the possible 
contours of the dispute, the matter brought and meant by Ukraine had not been clear [because] the 
final scope largely differed from what the panel request hinted" .69 
5.17.   Regarding the second point, namely , whether the panel request properly identified the 
third measure at issue, Russia alleges on appeal that the Panel failed to review the description of 
the third  measure in Ukraine's panel request on its face and instead undertook a  "contextual 
interpretation" of it.70 Russia asserts that the Panel failed to consider in its analysis the meaning of 
the third numbered point in the panel request, read on its face, and when compared with the other 
two numbered points of section  II of the panel request.71 Russia notes that th e text of the first 
two numbered points of the panel request refers to "certain alleged actions" by Russia, while the 
third numbered point of the panel request lists certain documents, and submits that therefore the 
third measure at issue covers specific d ocuments, rather than certain alleged actions.72  
 
61 Panel  Report, para.  7.93. 
62 Panel  Report, para.  7.104.  
63 Russia's other appellant's submission, paras.  3-11 (referring, inter alia , to the Panel's finding in 
para. 7.43).  
64 Russia's other appellant's submission, paras.  12-43 (referring, inter alia , to the Panel's finding in 
para. 7.104).  
65 Russia's other appellant's submission, para.  8 (quoting Panel  Report, para.  7.42).  
66 Russia's other appellant's submission, para.  9 (quoting Panel  Report, para.  7.32). (emphasis original)  
67 Russia's other appellant's submission, para.  9. 
68 Russia's other appellant's submission, para.  9. 
69 Russia's other appellant's submission, para.  6. (emphasis original)  
70 Russia's other appellant's submission, para.  14. 
71 Russia's other appellant's submission, para.  15. 
72 Russia's other appellant's submission, paras.  18-19. WT/DS499/AB/R  
 
- 18 - 
 
  5.18.   Russia also disagrees with the Panel's statement that there is no single way in which a 
challenged measure must invariably be identified. Instead, the Panel should have relied on the plain 
meaning of the tex t of Ukraine's panel request and found that the third  measure is Technical 
Regulation  001/2011 as such, read together with the Protocol of the Ministry of Transport  of the 
Russian Federation (MOT)  and the instructions mentioned in Annex  III.73  
5.19.   Russia asser ts that, in order to confirm the meaning of the words used in a panel request, 
and as part of the assessment of whether the ability of the respondent to defend itself was 
prejudiced, submissions and statements made during the course of the panel proceeding s, in 
particular the first written submission of the complaining party, may be consulted.74 Russia notes 
that Ukraine described the third measure in three different manners in its first written submission  
to the Panel  and argues that the discrepancy in the way Ukraine referred to this measure 
demonstrates that Ukraine's first written submission does not confirm the words used in its panel 
request, and that the panel request is not sufficiently specific to identi fy the precise measure at 
issue.75 In addition, Russia alleges that the Panel failed to properly consider the fact that 
CU Technical Regulation  001/2011, identified by Ukraine as an element of the third measure, is a 
complex legal instrument. Referring to the Panel  Report in Australia – Apples , Russia c ontends that 
whenever a complex and lengthy document is challenged, a panel request shall duly contain a 
reference to particular parts, sections, or issues and that Ukraine was therefore required to be more 
specific in identifying what it wished to challen ge before the Panel.76  
5.20.   Ukraine, for its part, requests us to uphold the Panel findings challenged by Russia.77 First, 
Ukraine submits that, contrary to Russia's arguments, its panel request links the measures at issue 
with the legal basis of the complaint s ufficiently to present the problem clearly.78 In particular, 
section  II of the panel request describes the "acts or omissions" attributable to Russia and identifies 
their "sources and evidence", while section  IV explains what "acts or omissions … violate wh at [WTO] 
provisions and on what basis".79 According to Ukraine, Russia's claim that the panel request does 
not plainly connect the challenged measures to the relevant provisions is based on an incorrect 
reading of section  IV in isolation from the rest of the panel request.80 Had Russia read the panel 
request as a whole, it would have readily understood how the claims made relate to the relevant 
WTO obligations.81 
5.21.   In response to Russia taking issue with the Panel's use of "weak auxiliary verbs", Ukraine 
submi ts that the Panel's "choice of words" or use of "auxiliary verbs" is irrelevant to a determination 
of whether or not the Panel committed an error of law in the interpretation and application of 
Article  6.2 of the DSU.82 Ukraine also disagrees with Russia th at the scope of the claims as 
formulated in the panel request changed throughout the proceedings, and particularly in Ukraine's 
first written submission.83 For Ukraine, the fact that a complainant abandons certain claims during 
the course of panel proceedin gs is immaterial to the question whether that complainant's panel 
request properly identifies the challenged measures and clearly connects them to the relevant 
WTO obligations.84  
5.22.   Second, Ukraine disagrees with Russia's allegation that the panel request doe s not clearly 
identify the third measure at issue in this dispute. Section  II of the panel request, titled "The 
measures at issue", lists not only the three measures, but also provides an explanation for each.85 
In particular, the "plain text" of the third recital clearly indicates that the third measure consists of 
"the decision" of Russian authorities not to recognize the validity of conformity certificates issued to 
 
73 Russia's other appellant's submission, para.  21 (quoting Panel  Report, para.  7.92).  
74 Russia's other appellant's submission, para.  23 (quoting Appellate  Body Report, US – Carbon Steel , 
para. 127; referring to Appellate  Body Reports, Korea – Dairy , para.  127; Thailand – H-Beams , para.  95). 
75 Russia's other appellant's submission, para.  27. 
76 Russia's other appellant's submission, para.  33 (referring to Panel Report, Australia  – Apples , 
para. 7.1449).  
77 Ukraine's appellee's submission, paras.  16, 37, 39, 69 -70, and 188.  
78 Ukraine's appellee's submission, paras.  16 and 19.  
79 Ukraine's appellee 's submission, para.  20. See also ibid., paras.  21-22 and 27 -28. 
80 Ukraine's appellee's submission, para.  27. 
81 Ukraine's appellee's submission, para.  28. 
82 Ukraine's appellee's submission, para.  36. 
83 Ukraine's appellee's submission, para.  29. 
84 Ukraine's  appellee's submission, para.  30. 
85 Ukraine's appellee's submission, para.  45. WT/DS499/AB/R  
 
- 19 - 
 
  Ukrainian producers in other CU  countries, as well as "the explanation and information on decisions 
taken in that regard".86 While defects in a panel request cannot be "cured" by a complainant's 
subsequent submissions and statements, those submissions and statements can nonetheless be 
considered in order to "confirm the meaning of the words" use d in the panel request.87 In Ukraine's 
view, its first written submission confirmed rather than altered the identification of the third measure 
as it appeared in the panel request.88 
5.23.   Ukraine argues that contrary to what Russia alleges, the Panel properly ass essed the panel 
request on its face.89 For Ukraine, Russia misunderstands the third measure as being limited to 
CU Technical Regulation  001/201190, whereas in fact the measure consists of that Regulation  "read 
together  with" Protocol No. A 4 -3 and three lett ers mentioned in Annex  III to the panel request.91 
Had Ukraine intended to challenge CU  Technical Regulation 001/2011 alone, it would not have 
included, in the description of the specific measure at issue, a protocol and individual decisions 
adopted by the MOT. 
5.24.   Finally, contrary to what Russia argues, for Ukraine the situation in the present case is not 
similar or comparable to that in Australia – Apples . In that case, due to the complexity and length 
of the legal instrument  and in the absence of references to specific parts of the challenged document , 
the respondent was unable to understand which specific elements of the legal instrument were at 
issue; in the present case , the instruments providing the legal basis for the third measure were 
clearly identified in the panel request and could therefore be discerned.92 Ukraine further submits 
that, in any event, the Appellate  Body has said that the consultation process provides an opportunity 
for parties to define and delimit the scope of the dispute.93 Since, in the present case, all relevant 
documents had been introduced at that stage of the proceedings, Russia could not claim on appeal 
that Ukraine failed to identify particular  parts of documents that were supposed to be examined and 
that it was thus unclear what Ukraine was challenging.  
5.1.3   Whether the Panel erred in finding in its preliminary ruling that Russia had failed 
to establish that Ukraine's panel request was inconsistent with Article  6.2 of the DSU  
5.25.   In addressing Russia's claim that the Panel erred in making the preliminary ruling that Russia 
has failed to establish that Ukraine's panel request is inconsistent with Article  6.2 of the DSU94, we 
note that Article  6.2 provides:   
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the pr oblem 
clearly. In case the applicant requests the establishment of a panel with other than 
standard terms of reference, the written request shall include the proposed text of 
special terms of reference.  
5.26.   Article  6.2 of the DSU sets out two principal require ments, namely, the identification of the 
specific measures at issue and the provision of a brief summary of the legal basis of the complaint 
sufficient to present the problem clearly.95 Russia's appeal concerns both requirements. In particular, 
Russia's cla im that the Panel erred in finding that Ukraine's panel request linked the measures at 
issue with the legal basis of the complaint relates to the obligation to provide a brief summary of 
the legal basis of the complaint sufficient to present the problem cl early. In turn, Russia's claim that 
 
86 Ukraine's appellee's submission, para.  46. (emphasis omitted)  
87 Ukraine's appellee's submission, para.  48 (quoting Appellate  Body Report, US – Carbon Steel , 
para. 127, in turn referring to Appellate  Body Reports, Korea – Dairy , para.  127; Thailand – H-Beams , 
para. 95). 
88 Ukraine's appellee's submission, para.  49. 
89 Ukraine's appellee's submission, para.  51. 
90 Ukraine's appellee's submission, para.  54. 
91 Ukraine's appellee's submission, para.  55. (emphasis original)  
92 Ukraine's appellee's submission, paras.  65-66. 
93 Ukraine's appellee's submission, para.  68 (referring to Appellate  Body Reports, Argentina  – Import 
Measures , para.  5.10).  
94 Panel  Report, para.  8.1.a.i. 
95 Furthermore, Article  6.2 contains the additional requirements that the request must be made in 
writing and that it must indicate whether consultations were held. See also Appellate  Body Report, 
Korea  – Dairy , para.  120. WT/DS499/AB/R  
 
- 20 - 
 
  the Panel erred in finding that the third measure had been properly identified in Ukraine's panel 
request relates to the obligation to properly identify the specific measures at issue.  
5.27.   The Appellate  Body has said that t he requirements specified in Article  6.2 are significant 
because, pursuant to Article  7 of the DSU, a panel's terms of reference are governed by the request 
for establishment of a panel96, and that a panel request thus delimits the scope of a panel's 
jurisd iction and serves the due process objective of notifying the respondent and third parties of the 
nature of the complainant's case.97 In order to "present the problem clearly", a panel request must 
plainly connect the challenged measures with the provisions of the covered agreements claimed to 
have been infringed, so that the respondent party is aware of the basis for the alleged inconsistency 
of the measures at issue with the covered agreements.98 Only by such connection between the 
measures and the relevant provisions can a respondent "know what case it has to answer, 
and ... begin preparing its defence".99 In this vein, for instance, the panel request s in China  – Raw 
Materials  did not present the problem clearly, because they failed to connect the different m easures 
with the various obligations listed therein.100 
5.28.   At the same time, the requirement to present the problem clearly does not entail an obligation 
for the complainant to provide arguments in support of its claim.101 Rather, the "brief summary" of 
the legal  basis of the complaint required by Article  6.2 of the DSU aims to explain succinctly how or 
why the measure at issue is considered by the complaining Member to be violating the 
WTO obligation in question.102 While the identification of the treaty provision claimed to have been 
violated by the respondent is "always necessary" and a "minimum prerequisite", such identification 
may not be sufficient to meet the requirement of Article  6.2 depending on the particular 
circumstances of a case, including the nature o f the measure at issue and the manner in which it is 
described in the panel request, as well as the nature of the provisions of the covered agreements 
alleged to have been breached.103  
5.29.   The Appellate  Body has further said that in order to determine whether a panel request 
complies with Article  6.2, a panel must carefully scrutinize the request, read as a whole, and on the 
basis of the language used therein.104 Moreover, a panel must determine compliance with Article  6.2 
on the face of the panel request  as it existed at the time of filing.105 Parties' subsequent submissions 
and statements during the panel proceedings cannot "cure" defects in a panel request106, but they 
 
96 Appellate  Body Report, US – Carbon Steel , para.  124. 
97 Appellate  Body Report, EC and certain member States – Large Civil Aircraft , paras.  639-640 (referring 
to Appellate  Body Report, US – Carbon Steel , para.  126, in turn referring to Appellate  Body Report, 
Brazil  – Desiccated Coco nut, p. 22, DSR 1997:I, p.  186). See also Appellate  Body Reports, EC – Chicken Cuts , 
para. 155; US – Zeroing (Japan) (Article  21.5 – Japan) , para.  108. 
98 Appellate  Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  162. 
99 Appellate  Body Repo rt, US – Oil Country Tubular Goods Sunset Reviews , para.  162 (quoting 
Appellate  Body Report, Thailand – H-Beams , para.  88). 
100 Those panel requests listed 37  legal instruments as the measures at issue, alleging that they were 
inconsistent with 13  provisions  of the covered agreements. However, it was unclear which allegations of error 
pertained to which particular measure identified in the panel requests. (Appellate  Body Reports, China – Raw 
Materials , para.  227. See also ibid., para.  229) 
101 Appellate  Body Re port, Korea – Pneumatic Valves (Japan) , para.  5.31 (quoting Appellate  Body 
Reports, China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.14, in turn quoting Appellate  Body Report, 
Korea  – Dairy , para.  139). See also ibid., para.  5.125; Appellate  Body Re port, US – Countervailing Measures 
(China) , para.  4.9. 
102 Appellate  Body Report, EC – Selected Customs Matters , para.  130. 
103 Appellate  Body Report, Korea – Pneumatic Valves (Japan) , para.  5.9 (quoting Appellate  Body 
Reports, China – HP-SSST (Japan) / China – HP-SSST (EU ), para. 5.14, in turn quoting Appellate  Body Report, 
Korea  – Dairy , para.  124).  
104 Appellate  Body Reports, EC – Bananas III , para.  142; EC and certain member States – Large Civil 
Aircraft , para.  641; US – Carbon Steel , para.  127; US – Continued Zeroing , para.  161; US – Countervailing 
Measures (China) , para.  4.7; EC – Fasteners (China) , para.  562; US – Oil Country Tubular Goods Sunset 
Reviews , paras.  164 and  169; US – Zeroing (Japan) (Article  21.5 – Japan) , para.  108. 
105 Appellate  Body Report, Indonesia – Iron or Steel Products , para.  5.79 (referring to Appellate  Body 
Reports, EC and certain member States – Large Civil Aircraft , para.  787; US – Continued Zeroing , para.  161; 
US – Carbon Steel , para.  127; China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.13).  
106 Appellate  Body Report, Indonesia – Iron or Steel Products , para.  5.79 (referring to Appellate  Body 
Reports, China – Raw Materials , para. 220; EC – Bananas III , para.  143; EC and certain member States – 
Large Civil Aircraft , para.  787; US – Carbon Steel , para.  127; US – Countervailing and Anti -Dumping Measures 
(China) , para.  4.9). WT/DS499/AB/R  
 
- 21 - 
 
  can be consulted to the extent that they may confirm or clarify the meaning of the words used in 
the panel request.107  
5.1.3.1   Linkages between measures and legal basis of the complaint  
5.30.   We now turn to review the Panel's analysis in its preliminary ruling regarding Article  6.2 of 
the DSU. At the outset we note the Panel 's observ ation that Ukraine's pane l request was structured 
in four sections: section I  providing an overview of the background of the dispute; section  II 
describing the measures at issue; section  III describing Russia's relevant legal framework; and 
section  IV providing the legal basis of the complaint.108 The Panel focused on sections  II and IV of 
Ukraine's panel request and examined , for each point of section  IV of the panel request,  and bearing 
in mind the description of the three measures at issue in section  II of the panel request, wheth er 
the panel request links the challenged measures with the 10 WTO provisions allegedly infringed.109 
5.31.   The Panel analysed the linkages between the measures challenged by Ukraine and the 
WTO provisions allegedly infringed, based on the text of the panel reques t, including by drawing 
inferences, for instance, with respect to Ukraine's claims under Article  X:3(a) of the GATT  1994. In 
that respect, the Panel reasoned:  
Point eight of section  IV of the panel request contains Ukraine's claims under 
Article  X:3(a) of  the GATT  1994. These claims concern the uniform, impartial, and 
reasonable administration of laws, regulations, and decisions of a general application. 
Measure one and measure three are measures of general application which could fall 
under the purview of  Article  X:3(a). This, however, is not the case for the 
three  components of measure two, all of which refer to individual instances of 
application. We thus consider that there is a link between Ukraine's claims under 
Article  X:3(a) and measures one and thr ee. We also consider that there is no link 
between Ukraine's claims under Article  X:3(a) and measure two.110  
Thus, the Panel explained what it considered to be the linkages made in the panel request, and 
ultimately summarized111 its findings in a table that set out for each measure the provision under 
which Ukraine had raised a claim.  
5.32.   Russia takes issue with what it refers to as the Panel's use of "weak auxiliary verbs", such as 
"could  relate" or " could  concern", and asserts tha t this language reveals that the linkages between 
the measures and the legal obligations were not as clear as the Panel found.112 As we see it, the use 
of this language is owed to the analytical approach employed by the Panel, defining, first, the 
potential scope of a particular claim, and second , identifying limitations on the scope of the claim 
based on the language used in the Panel request. The Panel statements identified by Russia in 
connection with this argument represent intermediate st eps in the Panel's reasoning that, in 
connection with other elements of the Panel's analysis, provide the basis for the Panel's conclusion 
concerning linkages between the measures challenged by Ukraine and the WTO  provisions allegedly 
infringed. The statem ents identified by Russia do not describe conclusively the quality of the linkages 
between the measures and the provisions at issue and thus, taken in isolation, these statements 
cannot be regarded as describing the quality of these linkages.  
5.33.   In addition,  Russia asserts that the Panel erred in failing to recognize similarities in the 
deficiencies of the panel requests in the present case and in China – Raw Materials , the latter of 
which had been found to be insufficient by the Appellate  Body.113 We note that  the Panel indeed 
addressed the parallels drawn by Russia between the panel request at issue and the panel request s 
in China – Raw Materials  in some detail in its report.114 However, the Panel observed significant 
differences between the panel requests  in the present case and in China – Raw Materials . The Panel 
 
107 Appellate  Body Report, Indonesia – Iron or Steel Produ cts, para.  5.79 (referring to Appellate  Body 
Reports, China – Raw Materials , para.  220; EC and certain member States – Large Civil Aircraft , para.  642; 
US – Carbon Steel , para.  127; US – Countervailing and Anti -Dumping Measures (China) , para.  4.9). 
108 Panel  Report, paras.  7.23-7.39. 
109 Panel  Report, paras.  7.30-7.39. 
110 Panel  Report, para.  7.37. 
111 Panel  Report, para.  7.39, table  1. 
112 Russia's other appellant's submission, para.  9. 
113 Russia's other appellant's submission, paras.  7-8. 
114 Panel  Report, para.  7.40. WT/DS499/AB/R  
 
- 22 - 
 
  noted that, first, the narrative paragraphs of section  II of the panel requests in China – Raw Materials  
referred to several distinct types of measures and included allegations of violation of 13 diffe rent 
provisions of the covered agreements. Following the narrative paragraphs, the panel requests 
included a list of at least 37 legal instruments that ranged from entire codes or charters to specific 
administrative measures, without referring to specific sections or provisions of any of the listed 
instruments. The Panel observed that the narrative paragraphs in those panel requests included a 
brief description of different allegations of violation relating to different types of restraints, but they 
did not  link them to the myriad of legal instruments listed in the subsequent section. The Panel 
contrasted this with Ukraine's panel request at issue and noted that the narrative paragraphs in 
section  II identify three measures at issue and provide a description  that allows the nature of each 
to be discerned. The Panel further explained that, in particular, the third narrative paragraph of 
section  II, where the non -recognition of other CU  certificates is described, provides a clear indication 
of the legal instrum ents concerned by that measure (e.g.  CU Technical Regulation  001/2011). 
Furthermore, the Panel noted that the legal instruments described in section  III of the panel request 
at issue were limited to nine instruments, the first five of which clearly relate to the challenged 
measures described in section  II, and the other four refer to the background on the legal framework 
applicable to Russia's Conformity Assessment Procedures .115 In addition, the Panel noted that the 
final paragraph of section  III of the pane l requests in China – Raw Materials  provided a list of 
13 WTO provisions allegedly infringed, without indicating how any of the measures at issue caused 
any of the alleged violations. The Panel noted that the narrative paragraphs of the panel request in 
the present case, however, provided such explanations.116 In particular, the Panel explained that 
section  IV of Ukraine's panel request contained a list of the 10 WTO provisions allegedly infringed, 
together with an explanation of why Ukraine considers that th e measures identified are inconsistent 
with Russia's obligations.117 
5.34.   Accordingly, the Panel in fact engaged with Russia's argument concerning parallels between 
the panel request at issue and the panel request s in China – Raw Materials . The Panel, however, 
provided a detailed explanation of why it did not see sufficient similarities between the panel request  
in the present case and the panel requests in China – Raw Materials . On appeal, Russia advances 
essentially the same argument as before the Panel based on  what it considers to be parallels between 
these panel requests. Thus, rather than demonstrating an error in the Panel's application of 
Article  6.2 of the DSU, Russia simply disagrees with the reasons given by the Panel for rejecting 
Russia's argument of c ertain parallels between the panel request at issue and the panel request s in 
China – Raw Materials .  
5.35.   In light of the above considerations, we find that the Panel did not err in its assessment of 
whether Ukraine's panel request provided sufficient clarity so as to plainly connect the 
WTO provisions allegedly infringed to the measures at issue.  
5.1.3.2   Identification of the third measure  
5.36.   Next, we turn to address Russia's allegation that the Panel erred in finding that Ukraine's 
panel request identified Ukraine's third measure in a manner that satisfies the requirements of 
Article  6.2 of the DSU.118 Russia alleges that the Panel erred because it failed to review the 
description of the third measure in the panel request "on its face" and instead undertook a 
"contextual interpretation" of it.119 
5.37.   This allegation of error relates to the Panel's analysis in paragraphs  7.87 to 7.104  of the Panel 
Report , in which the Panel found that the measure at issue identified in the panel request as the 
third measure is the all eged requirement that Russia's authorities must not recognize certificates 
issued in other CU  countries if the certified railway products were not produced in a CU  country.120 
In particular, the Panel reasoned that "the third measure at issue is addressed in  the third narrative 
paragraph, the three numbered points and Annex  III", and that these references must be read 
 
115 Panel  Report, para.  7.41 (referring to Ukraine's panel request, pp.  2-3). 
116 Panel  Report, para.  7.42 (referring to WT/DS394/7, pp.  6-9; WT/DS395/7, pp.  6-9; WT/DS398/6, 
pp. 6-9). 
117 Panel  Report, para.  7.42 (referring to Ukraine's panel request, pp.  3-4). 
118 Panel  Report, para.  7.104.  
119 Russia's other appellant's submission, para.  14. 
120 Panel  Report, para.  7.103.  WT/DS499/AB/R  
 
- 23 - 
 
  together.121 The Panel then addressed each of these elements and concluded that the third measure 
challenged by Ukraine was the alleged requireme nt that Russia's authorities considered to flow from 
CU Technical Regulation  001/2011, pursuant to which Russia's authorities must not recognize 
certificates issued to Ukrainian producers in other CU  countries, if the certified products were not 
produced i n a CU  country.122  
5.38.   We have set out above that, in order to determine whether a panel request complies with 
Article  6.2, a panel must carefully scrutinize the request, read as a whole, and on the basis of the 
language used therein.123 Moreover, a panel must de termine compliance with Article  6.2 on the face 
of the panel request as it existed at the time of filing.124  
5.39.   We observe that in the present case, the Panel began its analysis by noting which elements 
of the panel request related to the third measure.125 One b y one, the Panel addressed these elements 
and explained its understanding of them.126 Next, the Panel addressed the various elements 
"in context". We understand the Panel thus to have assessed the panel request "as a whole", 
in keeping with the approach set out above.  
5.40.   Russia argues that the text of the first two numbered points of the panel request refers to 
"certain alleged actions" by Russia, while the third numbered point of the panel request lists certain 
documents.127 For Russia, such intentional differen ce in the description of the measures at issue 
must be given meaning, such that the third  measure at issue covers specific documents, rather than 
certain alleged actions.128 Russia contends that the Panel erred in disregarding this difference in the 
descript ion of the measures at issue, and instead engaged in guessing what the complainant could 
have meant. Ukraine responds that Russia is essentially requesting the Appellate  Body to read the 
numbered list in section  IV of the panel request in isolation from the remaining part of that section, 
the other sections of the request, and the text of the covered agreements. For Ukraine, the 
numbered list and the explanations given in section  IV, read together with the introductory 
paragraph to that list, support the Pa nel's findings in the preliminary ruling.129 
5.41.   We do not see that the Panel disregarded differences in the description of the measures at 
issue as alleged by Russia. A review of paragraphs 7.65 to 7.99 of the Panel  Report  reveals that, 
with regard to each of t he three measures at issue, the Panel employed a different analytical 
approach in its assessment of the relevant parts of the panel request. The first measure had been 
identified by Ukraine as the "non -recognition" of certificates, and the Panel considered  that to be the 
first measure without further analysis. With respect to the second measure, the Panel noted that 
Ukraine had referred to refusals to recognize certificates, suspension of certificates, and rejections. 
The Panel then "inferred that Ukraine [ had sought] to identify these individual instructions as 
separate components of measure two" .130 Concerning the third measure, the Panel noted that the 
third numbered point identified CU  Technical Regulation  001/2011, read together with the Protocol 
of the MOT and instructions mentioned in Annex  III. The Panel continued explaining that, in order 
to better understand the third  measure, it was instructive to look at the third narrative paragraph in 
section  II. The Panel observed that the relevant Russian author ities had concluded that certificates 
issued in other CU  countries were not valid in Russia's territory and that the products concerned 
could not be imported or registered. In other words, according to Ukraine, Russia's authorities 
concluded that these cer tificates could not be recognized.  
 
121 Panel  Report, para.  7.93 (referring to the text of section  II of Ukraine's panel request as reproduced 
by the Panel in para.  7.139, table 2).  
122 Panel  Report, paras.  7.99 and 7.103.  
123 Appellate  Body Reports, EC – Bananas III , para.  142; EC and certain memb er States – Large Civil 
Aircraft , para.  641; US – Carbon Steel , para.  127; US – Continued Zeroing , para.  161; US – Countervailing 
Measures (China) , para.  4.7; EC – Fasteners (China) , para.  562; US – Oil Country Tubular Goods Sunset 
Reviews , paras.  164 and  169; US – Zeroing (Japan) (Article  21.5 – Japan) , para.  108. 
124 Appellate  Body Report, Indonesia – Iron or Steel Products , para.  5.79 (referring to Appellate  Body 
Reports, EC and certain member States – Large Civil Aircraft , para.  787; US – Continued Zeroin g, para.  161; 
US – Carbon Steel , para.  127; China – HP-SSST (Japan) / China – HP-SSST (EU) , para.  5.13).  
125 Panel  Report, para.  7.93. 
126 Panel  Report, paras.  7.94-7.98. 
127 Russia's other appellant's submission, para.  18. 
128 Russia's other appellant's submissio n, para.  19. 
129 Ukraine's appellee's submission, paras.  27-28. 
130 Panel  Report, para.  7.96. WT/DS499/AB/R  
 
- 24 - 
 
  5.42.   This demonstrates that, contrary to what Russia alleges, the Panel did not disregard 
differences in the description of the measures at issue. On the contrary, while the Panel noted the 
content of the first measure as cle ar on the face of the measure, the Panel drew certain inferences 
in order to determine the content of the second measure, and considered contextual elements 
contained in other parts of the panel request in order to determine the content of the third  measur e.  
5.43.   Furthermore, Russia takes issue with the Panel's statement that there is no single way in 
which a challenged measure must be identified, and asserts that, instead, the Panel should have 
relied on the plain meaning of the text of Ukraine's panel request  and found that the third measure 
is Technical Regulation  001/2011 as such, read together with the Protocol of the MOT and the 
instructions mentioned in Annex  III.131 Ukraine disagrees with Russia that the Panel failed to 
consider the language contained in the panel request on its face132, and submits that the Panel 
properly considered the panel request as a whole.  
5.44.   As we have set out above, it is well established that in  an analysis under Article  6.2 of the 
DSU, panels must scrutinize the panel request read as a whole, and on the basis of the language 
used therein.133 Russia's proposed reading of the panel request would not take account of the 
description of the measure in the third  narrative paragraph of section  II of the panel request and it 
would thus not constitute a reading "as a whole". Moreover, we agree with the Panel that the 
reference to "Technical Regulation  No. 001/2011 'On safety of railway rolling stock', read together 
with the Protocol of the Ministry of Transport of the Russian Federation regarding issuance by 
certification authority of the Customs Union of the certificates of conformity for products 
manufactured by third -countries"134 indicates that Ukraine was  not challenging Technical 
Regulation  001/2011 "as such", but rather a particular measure expressed in that technical 
regulation  when read together with  the relevant Protocol of the MOT.135  
5.45.   Finally, Russia also alleges that the Panel failed to properly cons ider the fact that CU  Technical 
Regulation  001/2011, identified by Ukraine as an element of the third measure, is a complex legal 
instrument, and that therefore Ukraine was required to specify particular parts that it wished to 
challenge before the Panel.136 In support of this argument, Russia submits that the panel in 
Australia  – Apples  found that whenever a complex and lengthy document is challenged, a panel 
request shall duly contain a reference to particular parts, sections, or issues to enable a responde nt 
to understand the problem clearly.  
5.46.   We note that the Panel assessed Ukraine's panel request , taking account of the findings by 
the panel in Australia – Apples . The Panel noted that New Zealand's panel request contained a broad 
reference to the measures as specified in the final import risk analysis report for apples from 
New Zealand of November 2006 (FIRA) and then a list of 17 specific measures listed in the FIRA.137 
The identification of the 17 items in the FIRA was found to be sufficiently precise in id entifying the 
specific measures at issue, pursuant to Article  6.2 of the DSU.138 However, the panel in 
Australia  – Apples  also found that, given the length and complexity of the FIRA, a broad reference 
to it was insufficient as identification of a measure at  issue in the sense of Article  6.2 of the DSU.139 
5.47.   In its analysis, the Panel noted significant differences between Ukraine's panel request in the 
present dispute and New Zealand's panel request in Australia – Apples . The Panel noted that 
Ukraine's panel requ est identifies the measure at issue in different parts of section  II, and that it 
does so with sufficient clarity to allow a reader to discern that the measure is the alleged requirement 
that Russia's authorities must not recognize certificates issued in o ther CU  countries if the certified 
products were not produced in a CU  country. The Panel further explained that Ukraine's references 
 
131 Russia's other appellant's submission, para.  21 (referring to Panel  Report, para.  7.92).  
132 Ukraine's appellee's submission, para.  51. 
133 Appellate  Body Reports,  EC – Bananas III , para.  142; EC and certain member States – Large Civil 
Aircraft , para.  641; US – Carbon Steel , para.  127; US – Continued Zeroing , para.  161; US – Countervailing 
Measures (China) , para.  4.7; EC – Fasteners (China) , para.  562; US – Oil Country Tubular Goods Sunset 
Reviews , paras.  164 and  169; US – Zeroing (Japan) (Article  21.5 – Japan ), para.  108. 
134 Ukraine's panel request, section  II(3). (emphasis added)  
135 Panel  Report, para.  7.93. 
136 Russia's other appellant's submission, para.  33 (referring to Panel  Report, Australia – Apples , 
para. 7.1449).  
137 Panel  Report, para.  7.101 (referring to Panel  Report, Australia – Apples , para.  7.1446).  
138 Panel  Report, para.  7.101 (referring to Panel  Report, Australia – Apples , para.  7.1449).  
139 Panel  Report, para.  7.101 (referring to Panel  Report, Australia – Apples , para. 7.1449).  WT/DS499/AB/R  
 
- 25 - 
 
  to CU  Technical Regulation  001/2011 and the Protocol of the MOT in certain parts of the panel 
request seemed intended to si gnal the legal instruments from which the challenged measure flows. 
In contrast, in Australia – Apples , New Zealand attempted to describe the measure at issue as the 
FIRA, a complex and lengthy legal instrument.140 
5.48.   Accordingly, the Panel did engage with Russ ia's argument relying on the findings of the panel 
in Australia – Apples . Ultimately, the Panel concluded that the features of the present panel request 
of Ukraine were different from those of the panel request in Australia  – Apples . Rather than 
demonstrating an error in the Panel's application of Article  6.2 of the DSU, Russia disagrees with the 
reasons given by the Panel for rejecting Russia's argument regarding certain parallels between the 
panel request at issue and the panel req uest in Australia – Apples .  
5.1.4   Conclusion  
5.49.   Russia has not established that the Panel erred in determining the scope of its terms of 
reference in this dispute. We therefore uphold  the Panel's finding , in paragraphs 8.1.a.i, 8.1.d.iv, 
and 8.1.d.v of the Panel  Report , that Russia has failed to establish that Ukraine's panel request is 
inconsistent with Article  6.2 of the DSU.  
5.2  Russia's claims  concerning the Panel's findings relating to the third measure  
5.50.   On appeal, Russia makes four claims regarding the Panel's fi ndings relating to the 
third measure. First, Russia claims that the Panel erred under Articles  6.2, 7.1, and 11 of the DSU 
in finding that the third measure as described by the Panel was within its terms of reference.141 
Second, Russia claims that the Panel erred under Article  11 of the DSU by making findings regarding 
the alleged local registration condition after it had found that aspect as it relates to the third measure 
to be outside its terms of reference.142 Third, Russia claims that the Panel erred under  Article  11 of 
the DSU by relieving Ukraine from "the necessity of establishing a prima  facie case" with respect to 
the existence of the third measure as a single measure capable of being challenged under the DSU.143 
Lastly, Russia claims that the Panel erre d under Article  11 of the DSU in finding that the 
third measure is of a "general" character and "flows from" CU  Technical Regulation 001/2011, and 
that the third measure had been demonstrated to exist.144 
5.51.   We begin with a summary of the relevant findings by t he Panel, and Russia 's and Ukraine's 
arguments on appeal. We then proceed to assess Russia's claims concerning the Panel's findings 
relating to the third measure.  
5.2.1   The Panel's findings  
5.52.   Before the Panel, Ukraine challenged the decision by the Russian authorities not to recognize 
in its territory the validity of certificates issued to producers of Ukrainian railway products in other 
CU countries as a measure that the Panel referred to as the third measure.145 As evidence 
establishing the existence of this  measure, Ukraine submitted to the Panel certain letters issued by 
the Russian Federal Agency for Railway Transport (ART) as follows146: (i) the January 2015 letter, 
to which Protocol  No. A 4-3 of the MOT was attached (the January  2015 letter); (ii) the letter sent 
on 4  February 2016 (the February  2016 letter); and (iii)  the letter of 10  August  2016 (the 
 
140 Panel  Report, para.  7.102.  
141 Russia's other appellant's submission, section  3. 
142 Russia's other appellant's submission, section  4. 
143 Russia's other appellant's submission, section  5. 
144 Russia's other appellant's submission, section  6. 
145 Panel Report, para.  7.811 (referring to Ukraine's first written submission to the Panel, para.  373). 
See also ibid., para.  7.808.  
146 Panel  Report, paras.  7.811 and 7.841. See also Letter from the Federal Agency for Railway Transport 
of the MOT to JSC [BCI]  accompanied to Protocol No. A 4 -3 of 20 January 2015 of the MOT regarding issuance 
by the certification authority of the CU of the certificates of conformity for products manufactured by third 
countries ( Panel Exhibit UKR -48 (BCI)); Letter dated 4 February 2016 from the Federal Agency for Railway 
Transport to [BCI]  on validity of certificates (Panel Exhibit  UKR-49 (BCI)); Letter dated 10 August 2016 from 
the Federal Agency for Railway Transport to JSC [BCI]  on validity of certificates  (Panel Exhibit UKR -141 
(BCI)). We refer to the translated English versions of the Panel exhibits.  WT/DS499/AB/R  
 
- 26 - 
 
  August  2016 letter).147 Based on these letters, Ukraine argued before the Panel that the decision 
not to recognize the validity of certificates is sued to Ukrainian producers in other countries was 
based on the relevant Russian authorities' interpretation of CU  Technical Regulation 001/2011.148 
Specifically, Ukraine argued that the relevant Russian authorities interpreted CU  Technical 
Regulation  001/20 11 as setting out the following two requirements: (i)  the requirement that only 
products manufactured in the territory of the CU may be subject to certification under CU  Technical 
Regulation  001/2011 (the local production condition); and (ii)  the requireme nt that only entities 
registered in the same country as the relevant certification body can apply for certification (the local 
registration condition).149 
5.53.   In response, Russia submitted that what the panel request identified as the third  measure 
was CU  Techni cal Regulation  001/2011, rather than the decision not to recognize the validity of 
certificates issued to Ukrainian producers in other countries.150 Thus, Russia argued before the Panel 
that the third measure challenged by Ukraine in its first written submis sion to the Panel was 
"different from the measure identified in [Ukraine's] panel request" and that it was therefore outside 
the Panel's terms of reference.151 On this basis, Russia also contended that its due process right to 
know what case it has to defend  had been prejudiced.152 
5.54.   The Panel considered that the issue before it was whether the third measure as described in 
Ukraine's written submissions was "different from the measure that is identified in the panel 
request".153 The Panel recalled that , in its prel iminary ruling, it had already rejected Russia's claim 
that Ukraine had failed to identify the third measure with sufficient clarity in its panel request. The 
Panel noted that the third measure as described in Ukraine's panel request concerned "an alleged 
requirement that Russia's authorities consider to flow from CU Technical Regulation 001/2011".154 
Under this requirement, the Russian authorities must not recognize certificates issued to Ukrainian 
producers in other CU countries, unless the local production  condition and the local registration 
condition are met. Concerning the local production condition, the Panel observed that the 
third narrative paragraph of Ukraine's panel request specifically identifies it as a basis for Ukraine's 
claim.155 Accordingly, th e Panel found it "clear … from the analysis of the panel request … that any 
challenge to the alleged requirement that Russia's authorities must not recognize certificates issued 
in other CU countries if the certified products were not produced in a CU coun try is within [the 
Panel's] terms of reference" .156 However, the Panel noted that the local registration condition was 
not expressly mentioned in Ukraine's panel request.157 The Panel took the view that the panel 
request does not give adequate notice to Russia  and third parties about Ukraine's claim with respect 
to the local registration condition. Hence, the Panel concluded that Ukraine's claim concerning 
non-recognition resulting from a failure to meet the alleged local registration condition was not within 
the Panel's terms of reference.158 
5.55.   The Panel then turned to the alleged difference between the descriptions of the third measure 
in Ukraine's panel request and  in its written submissions in the context of defining the Panel's  terms 
of reference. The Panel noted that the description of the third measure in Ukraine's written 
 
147 Panel  Report, para.  7.841, table  7. See also Letter from the Federal Agency for Railway Transport of 
the MOT to JSC [BCI]  accompanied to Protocol No. A 4 -3 of 20 January 2015 of t he MOT regarding issuance 
by the certification authority of the CU of the certificates of conformity for products manufactured by third 
countries ( Panel Exhibit UKR -48 (BCI)); Letter dated 4 February 2016 from the Federal Agency for Railway 
Transport to [BCI] on validity of certificates  (Panel Exhibit UKR -49 (BCI)); Letter dated 10 August 2016 from 
the Federal Agency for Railway Transport to JSC [BCI]  on validity of certificates  (Panel Exhibit UKR -141 
(BCI)). The January  2015 letter (along with Protocol  No. A 4-3) and the February  2016 letter were listed in 
Annex  III to the panel request (see Ukraine's panel request, Annex  III), whereas the August  2016 letter was 
submitted by Ukraine with its second written submission (see Ukraine's second written submission  to the 
Panel, para.  444 and fn  462 thereto).  
148 Panel  Report, para.  7.812.  
149 Panel  Report, para.  7.813 (referring to Ukraine's first written submission to the Panel, 
paras.  375-376; responses to Panel questions Nos.  23, 26, and 36).  
150 Panel  Report, para.  7.818. 
151 Panel  Report, paras.  7.809 and 7.818 -7.819.  
152 Panel  Report, para.  7.819.  
153 Panel  Report, para.  7.822.  
154 Panel  Report, para.  7.823.  
155 Panel  Report, para.  7.823 (referring to Ukraine's panel request, p.  2). 
156 Panel  Report, para.  7.823. See also ibid. , para.  8.1.d.i.  
157 Panel  Report, para.  7.824.  
158 Panel  Report, para.  7.825.  WT/DS499/AB/R  
 
- 27 - 
 
  submissions to the Panel was "somewhat different" from the description in the panel request.159 
However, the Panel considered that "what matters for purposes of [its] assessment of … the third 
measure is not so much what terms Ukraine has employed", but rather "whether Ukraine has 
demonstrated the existence of the measure that Ukraine has identified in the panel request".160 In 
this regard, the Panel noted that t he reference to Russia's decision regarding the meaning and scope 
of CU  Technical Regulation 001/2011 in Ukraine's panel request indicates that the alleged 
non-recognition finds its basis in that regulation as interpreted by Russia. As such, the Panel 
understood the third measure in the panel request to mean "the alleged non -recognition requirement 
flowing from CU Technical Regulation 001/2011".161  
5.56.   Having clarified the scope of its terms of reference in relation to the third measure, the Panel 
proceeded to e xamine whether Ukraine had demonstrated the existence of the measure the Panel 
found to have been identified in the panel request.162 Based on its analysis of the three letters 
submitted by Ukraine as evidence of the existence of the third measure, the Panel  found that the 
Russian authorities "decided that the relevant certificates issued by Belarus' certification body were 
not valid in Russia's territory".163 The Panel noted that each decision in the three letters "was based 
explicitly on the provisions of CU  Technical Regulation  001/2001" as interpreted by the Russian 
authorities and applied to the certificates at issue, according to which a certificate cannot be validly 
issued under Articles  1(1) and 6(9) of that regulation unless, respectively, the local pro duction 
condition and the local registration condition are satisfied.164 The Panel's understanding was 
confirmed by two of the letters, which "explicitly state that the relevant certificates were issued by 
Belarus in 'violation' of CU  Technical Regulation  001/2011 because Belarus had not enforced the 
two requirements" .165 In the Panel's view, the evidence submitted by Ukraine indicated that the 
Russian authorities did not independently "decide " to establish a new general non -recognition 
requirement . Instead, th e requirements flowed from CU  Technical Regulation 001/2011 as the 
Russian authorities  interpreted it.166 The Panel found this to be consistent with the third measure as 
described in the panel request.  
5.57.   The Panel rejected Russia's argument that Protocol No.  A 4-3 is a non -binding document that 
merely records the opinions of representatives of various Russian railway -related bodies. The Panel 
considered that Protocol No. A 4-3 reveals that the competent authorities "reached a particular view 
on the scope of CU  Technical Regulation  001/2011" and took "decisions" and specific actions on the 
certificates at issue based on that view.167 Furthermore , the Panel saw no merit in Russia's argument 
that neither the MOT nor the Russian Federal ART was authorized to decide on  the recognition of 
certificates issued in other CU countries or to interpret CU  Technical Regulation  001/2011 under 
Russian law. For the Panel, t he question whether the relevant authorities had acted within their 
remit under domestic law had no relevance for its analysis, which rather hinged on "what these 
authorities actually did or did not do".168 
5.58.   Moreover, the Panel saw no merit in Russia's argume nt that Protocol  No. A 4-3 and the letters 
concerned products from only two Ukrainian producers and that therefore these documents were 
 
159 Panel  Report, para.  7.827.  
160 Panel  Report, para.  7.828.  
161 Panel  Report, para.  7.828. (emphasis added)  
162 Panel  Report, para.  7.829.  
163 Panel  Report, para.  7.846. The Russian authorities stated in the January  2015 letter and the attached 
Protocol  No. A 4-3 that CU  Technical Regulation  001/2011 applies to products manufactured in the territory of 
the CU. In the February  2016 letter and the  August  2016 letter, the Russian authorities stated that 
Articles  1(1) and 6(9) of CU  Technical Regulation  001/2011 provide for the local production condition and the 
local registration condition, respectively, and that certain certificates issued by the B elarusian authorities to 
Ukrainian imports were in violation of CU  Technical Regulation  001/2011. For these reasons, the Russian 
authorities decided that the certificates at issue in all three letters were not valid within Russia's territory. (See 
Panel  Report, para.  7.841 and table  7; Letter from the Federal Agency for Railway Transport of the MOT to JSC 
[BCI]  accompanied to Protocol No. A 4 -3 of 20 January 2015 of the MOT regarding issuance by the 
certification authority of the CU of the certificates of c onformity for products manufactured by third countries 
(Panel Exhibit UKR -48 (BCI)); Letter dated 4 February 2016 from the Federal Agency for Railway Transport to 
[BCI]  on validity of certificates  (Panel Exhibit UKR -49 (BCI)); Letter dated 10 August 2016 f rom the Federal 
Agency for Railway Transport to JSC [BCI]  on validity of certificates (Panel Exhibit  UKR-141 (BCI)))  
164 Panel  Report, paras.  7.846 -7.847.  
165 Panel  Report, para.  7.847.  
166 Panel  Report, para.  7.854.  
167 Panel  Report, para.  7.843.  
168 Panel  Report, para. 7.851. See also ibid., para.  7.845.  WT/DS499/AB/R  
 
- 28 - 
 
  not of general application. The Panel recalled that CU  Technical Regulation  001/2011 is a regulation 
of general applicat ion, and found that " [n]othing in the Protocol or the … letters" suggested that the 
interpretation of CU  Technical Regulation  001/2011 by the Russian authorities "would not be 
generally applicable and would apply only to Ukrainian products".169 The Panel als o recalled that 
Protocol  No. A 4-3 "state[d] that the underlying meeting concerned 'certificates of conformity for 
products manufactured by third -countries', which countries include, but are not limited to 
Ukraine ".170 The Panel considered these findings to support its view that the relevant documents 
provided a "general interpretation"171, whereby the Russian authorities would not recognize a 
certificate issued under CU  Technical Regulation  001/2011 in another CU  country unless the local 
production and the loc al registration conditions are met.172 
5.59.   Russia also referred to Article  53 of the Treaty on the Eurasian Economic Union (EAEU Treaty) 
in support of its argument that it did not apply the local production condition. According to Russia, 
this provision provides  that a product that conforms to CU  technical regulations must be permitted 
to circulate freely across the territory of the CU. In the Panel's view, however, the letters it examined 
explicitly state that the certificates issued by Belarus were issued in vi olation of CU  technical 
regulations. While the Panel acknowledged that there is indeed evidence that Russia had itself issued  
certificates under CU  Technical Regulation  001/2011 to producers located in third countries, the 
Panel found that there is no evid ence that Russia actually recognized  a certificate issued under 
CU Technical Regulation 001/2011 by another CU country to producers outside the CU within the 
relevant time period. The Panel thus found that Russia did not rebut Ukraine's evidence concerning  
non-recognition  that shows that a local production condition was enforced.173 
5.60.   In light of the foregoing considerations, the Panel concluded that "the third measure ha[d] 
been demonstrated to exist."174 In particular, the Panel found that the relevant Russian authorities 
applied "a general non -recognition requirement, which these authorities considered to flow from 
CU Technical Regulation  001/2011 as they interpreted it", according to which the Russian authorities 
were not to recognize certificates issued under CU  Technical Regulation 001/2011 i n other 
CU countries unless the local production condition and the local registration condition were met.175 
However, the Panel also noted that "the non -recognition requirement falls within the Panel's terms 
of reference only to the extent that it requires n on-recognition in situations where the certified 
products were not produced in a CU country."176 
5.2.2   Russia's claim that the Panel erred in finding the existence of the third  measure  
5.2.2.1   Arguments on appeal  
5.61.   On appeal, Russia requests that we reverse the Panel's find ing that the third measure has 
been demonstrated to exist and that the evidence on the record supports the conclusion that the 
relevant Russian authorities applied a general non -recognition requirement, which these authorities 
considered to flow from CU  Technical Regulation  001/2011 as they interpreted it.177 Russia submits 
that, in reaching that finding, the Panel failed to conduct an objective assessment under Article  11 
of the DSU.  
5.62.   In support of its position, Russia submits that the application of CU  Techn ical 
Regulation  001/2011 is not limited to products manufactured within the CU, but that it applies 
equally to products manufactured outside the CU. Furthermore, Russia contends that it had 
submitted evidence to the Panel demonstrating that CU  Technical Re gulation  001/2011 had in fact 
been applied to imports of railway products manufactured in third countries.178 Russia submits that 
 
169 Panel  Report, para.  7.850.  
170 Panel  Report, para.  7.850.  
171 Panel  Report, para.  7.850.  
172 Panel  Report, para.  7.853.  
173 Panel  Report, para.  7.856.  
174 Panel  Report, para.  7.861.  
175 Panel  Report, para.  7.861.  
176 Panel  Report, para.  7.862.  
177 Russia's other appellant's submission, para.  159 (referring to Panel  Report, para.  7.861).  
178 Russia's other appellant's submission, para.  149. WT/DS499/AB/R  
 
- 29 - 
 
  the alleged non -recognition requirement could not have flowed from CU  Technical 
Regulation  001/2011 and could not be of a genera l character.179 
5.63.   Furthermore, Russia asserts that because Ukraine's panel request referred to CU  Technical 
Regulation 001/2011 in the description of the third measure, the Panel was required to conduct 
a detailed examination of the regulation, starting with i ts text. In failing to engage sufficiently with 
the text of the regulation, the Panel failed to conduct an objective assessment of the matter.180 
Russia argues that the text of CU  Technical Regulation  001/2011  is "origin neutral" and that it does 
not contain  any provision requiring Russian authorities not to recognize the certificates issued by 
authorities of other CU  countries for goods manufactured outside the CU.181 According to Russia, 
this was also supported by Article  53 of the EAEU Treaty, which both the  Panel and Ukraine 
acknowledged to require that products subject to technical regulations of the CU be put into 
circulation within the whole CU without additional requirements or conformity assessment 
procedures.182 Finally, Russia alleges that the Panel fai led to consider its argument that the 
Russian  authorities that issued the letters the Panel relied on were not competent to interpret 
CU Technical Regulation 001/2011.183 
5.64.   Ukraine requests that we uphold the Panel's conclusion that the third measure, as descr ibed 
by the Panel as a general non -recognition requirement, which the Russian authorities considered to 
flow from CU  Technical Regulation 001/2011 as they interpreted it, had been demonstrated to 
exist.184 First, with respect to Russia's argument that the Pa nel erred by finding that the 
third measure "flows from" CU  Technical Regulation  001/2011, Ukraine disagrees with Russia that 
the Panel of its own motion found that the third measure flows from CU  Technical 
Regulation  001/2011. Ukraine submits that the rel evant Russian authorities themselves  interpreted 
the regulation to establish the non -recognition requirement.185  
5.65.   With respect to Russia's argument that the Panel erred by not examining CU  Technical 
Regulation  001/2011, Ukraine argues that since the third measure was not CU  Technical 
Regulation  001/2011 " per se "186, the Panel was under no obligation to examine that document 
separately from Protocol  No. A 4-3 and the other instruments.187 In any event, Ukraine submits that 
the Panel did examine CU  Technica l Regulation  001/2011, albeit not in its analysis of the 
third measure.188 
5.66.   In addition , Ukraine submits that the Panel was not required to examine whether Russia's 
authorities correctly understood or had the authority under Russian law to interpret CU  Techni cal 
Regulation  001/2011.189 For Ukraine, it was correct of the Panel not to engage with the question 
whether or not the MOT or the Russian Federal ART was competent to interpret CU  Technical 
Regulation  001/2011. Rather, what mattered for the purpose of the P anel's analysis was that the 
non-recognition requirement "was actually made operative in practice with respect to Ukrainian 
producers as a result of the decision made by the Russian authorities".190  
5.2.2.2   Analysis  
5.67.   As part of its objective assessment of the matter  under Article  11 of the DSU, a panel must 
"thoroughly scrutinize the measure before it, both in its design and in its operation, and identify its 
 
179 Russia's other appellant's submission, paras.  154 and 157.  
180 Russia's other appellant's sub mission, para.  133. 
181 Russia's other appellant's submission, para.  148. (emphasis omitted)  
182 Russia's other appellant's submission, para.  151. Specifically, Russia argues that, according to 
Article  53 of the EAEU Treaty, products that are subject to techni cal regulations of the CU are put into 
circulation within the territory of the whole CU after completion of the necessary conformity assessment 
procedure and that CU countries must ensure the circulation of the products that conform to CU technical 
regulat ions within their respective territories without introducing any requirements additional to those set out 
in the CU technical regulations or any additional conformity assessment procedures. (Ibid.)  
183 Russia's other appellant's submission, para.  155 (referr ing to Panel  Report, para.  7.851).  
184 Ukraine's appellee's submission, paras.  176-177 and 186 -187. 
185 Ukraine's appellee's submission, paras.  167-168. 
186 Ukraine's appellee's submission, para.  171. 
187 Ukraine's appellee's submission, para.  172. 
188 Ukraine's app ellee's submission, para.  170 (referring to Panel  Report, paras.  7.592 -7.595  
and 7.619).  
189 Ukraine's appellee's submission, para.  180. 
190 Ukraine's appellee's submission, para.  181. WT/DS499/AB/R  
 
- 30 - 
 
  principal characteristics".191 This entails identifying " all relevant characteristics of the measure", 
recogniz ing "which features are the most central to that measure itself", and "which are to be 
accorded the most significance for purposes of characterizing the relevant [measure]".192 Exactly 
what is required for a panel to do so is bound to vary depending on the c ircumstances of each case, 
the evidence proffered by the parties, and the nature of the measure itself.193 In this regard, panels 
enjoy a margin of discretion to structure their assessment as they see fit, provided they proceed "on 
the basis of a properly st ructured analysis"194, provide "reasoned and adequate explanations and 
coherent reasoning"195, base their findings on a "sufficient evidentiary basis"196, treat evidence with 
"even -handedness"197, and carry out a "holistic assessment" of all pertinent elements bef ore 
reaching its conclusions.198 
5.68.   Furthermore, the Appellate  Body cannot base a finding of inconsistency under Article  11 
simply on the conclusion that it might have reached a different factual finding from the one the panel 
reached.199 It is therefore not suff icient for a participant raising a claim under Article  11 simply to 
disagree with a panel.200 In addition, the Appellate  Body has stated that not every error in the 
appreciation of a particular piece of evidence will rise to the level of a failure by a panel  to comply 
with its duties under Article  11 of the DSU. To find that a panel acted inconsistently with Article  11, 
the Appellate  Body would have to be satisfied that the panel's errors, taken together or singly, 
undermine the objectivity of the panel's ass essment of the matter before it.201 
5.69.   With these considerations in mind, we turn to address Russia's claim that the Panel erred 
under Article  11 of the DSU in finding the existence of the third measure as a "general" 
non-recognition requirement that "flows fro m" CU  Technical Regulation  001/2011.  
5.70.   We first turn to Russia's argument that Ukraine's "[p]anel [r]equest specifies the matter as 
CU Technical Regulation 001/2011 and thus it is the obligation  of the Panel to examine CU  Technical 
Regulation 001/2011, inclu ding its content" .202 This contention appears to be based on the 
proposition that the third measure consists of CU  Technical Regulation 001/2011 as such.203 
However, as we have found above, the third measure as identified by Ukraine was the alleged 
decision by  the relevant Russian authorities that they will not recognize the validity of certificates 
issued for Ukrainian railway products by certification bodies in other CU countries unless the products 
were manufactured within the CU.204 The Panel examined the three letters submitted by Ukraine as 
evidence of this measure and made a factual finding that these documents showed that the relevant 
Russian authorities themselves  interpreted Article  1(1) of CU  Technical Regulation  001/2011 as 
imposing the non -recognition requirement based on, inter alia , the local production condition, and 
applied it on Ukrainian railway imports to come to a decision not to recognize certificates issued to 
 
191 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  586 (quoting Appellate  Body 
Reports, China – Auto Parts , para.  171).  
192 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  586 (quoting Appellate  Body 
Reports, China – Auto Parts , para.  171). (emphasis original) See a lso e.g. Appellate  Body Report,  
EU – Biodiesel (Argentina) , para.  6.156.  
193 Appellate  Body Report, US – Carbon Steel , para.  157. See also e.g. Appellate  Body Reports, 
Argentina – Import Measures , para.  5.110.  
194 Appellate  Body Report, Colombia – Textiles , para. 5.20 (quoting Appellate  Body Report,  
Canada – Wheat Exports and Grain Imports , para.  127).  
195 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  713 (quoting Appellate  Body 
Report, US – Upland Cotton (Article  21.5 – Brazil) , fn 618 to para.  293). See also e.g. Appellate  Body Report, 
Russia – Commercial Vehicles , paras.  5.76-5.77. 
196 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  713. See also e.g. 
Appellate  Body Report,  US – Carbon Steel , para.  142. 
197 Appell ate Body Report, US – Large Civil Aircraft (2nd complaint) , para.  713 (quoting Appellate  Body 
Report, US – Upland Cotton (Article  21.5 – Brazil) , para.  292).  
198 Appellate  Body Report, EU – Biodiesel (Argentina) , para.  6.156.  
199 Appellate  Body Report, EC and certain member States – Large Civil Aircraft , para.  1317 (referring to 
Appellate  Body Reports, US – Wheat Gluten , para.  151; EC – Sardines , para.  299; US – Carbon Steel , 
para. 142; quoting Appellate  Body Report, US – Wheat Gluten , para.  151).  
200 Appellate  Body Reports, US – Large Civil Aircraft (2nd complaint) , para.  992; China – Rare Earths , 
paras.  5.178 -5.179.  
201 Appellate  Body Report, EC and certain member States – Large Civil Aircraft , para.  1318.  
202 Russia's other appellant's submission, para.  134. (emphasis original)  
203 For example, in advancing this argument, Russia stresses that "the [p]anel [r]equest specifies the 
matter as CU Technical Regulation 001/2011." (Russia's other appellant's submission, para.  134) 
204 Panel  Report, paras.  7.811 -7.813. WT/DS499/AB/R  
 
- 31 - 
 
  these Ukrainian imports in other CU  countries.205 Thus, th e Panel did not interpret of its own motion 
CU Technical Regulation 001/2011 to find that the third measure in fact  "flows from" that regulation. 
Rather, the Panel found, as a factual matter based on its examination of the three letters, that the 
relevant Russian authorities themselves indicated CU  Technical Regulation  001/2011 as the source 
of the third measure as Ukraine identified in its panel request.206  
5.71.   Next, we turn to Russia's reliance on Article  53 of the EAEU Treaty.207 Russia contends that 
this provi sion requires that products subject to technical regulations of the CU be put into circulation 
within the whole CU without additional requirements or conformity assessment procedures. For 
Russia, this demonstrates that the non -recognition requirement chall enged by Ukraine does not 
exist.208 In this respect, we note that the Panel reviewed the three letters provided by Ukraine as 
evidence of the third measure and found that the relevant Russian authorities decided that the 
relevant certificates issued by the B elarusian certification body were not valid in Russia's territory . 
This decision was expressly based on the provisions of CU  Technical Regulation  001/2011, which the 
Russian authorities interpreted as imposing the local production condition and the local r egistration 
condition.209 In our view, the Panel thus found that the non -recognition requirement challenged by 
Ukraine did in fact exist, notwithstanding the argument by Russia that such a requirement would be 
in breach of Article  53 of the EAEU Treaty. Thus , for the Panel, evidence regarding whether or not 
the third  measure is permitted under Article  53 of the EAEU Treaty was not probative in determining 
whether the third measure existed in reality.  
5.72.   We now turn to Russia's assertion that the Panel did not c onsider its argument that neither 
the MOT nor the Russian Federal ART had the authority to interpret CU  Technical 
Regulation  001/2011.210 We note that the Panel indeed addressed this argument.211 In particular, 
the Panel explicitly noted Russia's argument that  neither the MOT nor the Russian Federal ART had 
the authority to interpret CU  Technical Regulation 001/2011.212 The Panel then recalled 
Protocol  No. A 4-3 and the letters, and found that it is clear from these documents that the 
Russian  authorities reached a conclusion on the meaning and scope of certain provisions of 
CU Technical Regulation  001/2011 and based their decisions on it.213 In the presence of  evidence of 
what the Russian authorities actually did according to these letters, the Panel concluded that whether 
or not the relevant Russian authorities had the power to interpret CU  Technical Regulation 001/2011 
and whether they interpreted it correctly was not relevant to its analysis. Instead, the Panel found 
that what is relevant for its analysis was what  the Russian authorities actually did or did not do214, 
which the Panel discerned from Protocol  No. A 4-3 and the letters. From our review of the Panel's 
analysis, we do not see that the Panel "did not consider" or "disregarded" Russia's arguments that 
neither the MOT nor the Russian Federal ART had the authority to interpret CU  Technical Regulation 
001/2011. Rather, the Panel did consider these arguments in light of its finding of what the relevant 
Russian  authorities actually did.  
5.73.   In addition, we do not co nsider that Russia has established that the Panel erred in finding that 
the competence of the MOT and the Russian Federal  ART to interpret CU  Technical 
Regulation  001/2011 is not relevant for the purpose of assessing the existence of the third measure. 
We recall that the third  measure at issue did not include CU  Technical Regulation 001/2011 per se , 
but consisted of the alleged non -recognition requirement that the relevant Russian authorities 
themselves considered to flow from CU  Technical Regulation 001/2011 according to their 
interpretation. As such, we do not see the relevance of the competence of the relevant Russian 
authorities to interpret CU  Technical Regulation  001/2011 in determining whether the third measure 
exists.  
5.74.   Finally, we turn to Russia's argument that a "general" non -recognition requirement that "flows 
from" CU  Technical Regulation 001/2011 did not exist because it was CU  Technical 
Regulation  001/2011 (as opposed to the alleged non -recognition requirement) that applied to all 
 
205 Panel  Report, para.  7.847.  
206 Panel  Report, paras.  7.828 and 7.846 -7.847.  
207 See para.  5.60 above.  
208 Russia's other appellant's submission, para.  151. 
209 Panel  Report, paras.  7.846 -7.847.  
210 Russia's other appellant's submission, para.  155. 
211 Panel  Report , para.  7.851.  
212 Panel  Report, para.  7.851.  
213 Panel  Report, para.  7.851.  
214 Panel  Report, para.  7.851.  WT/DS499/AB/R  
 
- 32 - 
 
  products regardless of their location of manufacture.215 Russia's assertion is based on the evidence 
of Russia's issuance of certifica tes under CU  Technical Regulation 001/2011 to producers outside the 
CU territory.216 In this regard, we recall that the measure subject to the Panel's inquiry was the 
non-recognition  by Russia of certificates already issued under CU  Technical Regulation 001/ 2011 to 
products manufactured in other CU countries.217 The Panel stated that the third measure at issue 
concerned "only the non -recognition by Russia of certificates already issued to Ukrainian producers 
under CU  Technical Regulation 001/2011 in other CU co untries" but "[i]t does not concern 
non-certification by Russia"218, i.e. issuance of certificates under CU  Technical Regulation 001/2011 
by the Russia n authorities . The evidence submitted by Russia, however, relates to Russia's issuance  
of certificates unde r CU Technical Regulation 001/2011. Specifically, Russia submitted to the Panel 
that it had issued certificates under CU  Technical Regulation 001/2011 and subsequent amendments 
to producers located in Austria, Czech Republic, Germany, Hungary, Italy, Japan , Spain, Switzerland, 
and the United Kingdom.219 While the Panel acknowledged that "there is indeed evidence that Russia 
ha[d] itself issued certificates under CU  Technical Regulation 001/2011 to producers located in third 
countries", it ultimately found tha t "there is no evidence that … Russia actually allowed registration 
and importation of products produced outside the CU  and covered by a certificate issued under 
CU Technical Regulation 001/2011 by another CU country."220 We agree with the Panel that "Russia  
[had] therefore not rebutted Ukraine's evidence concerning non -recognition that shows that a 
production condition was enforced" on the basis of evidence relating to the Russian authorities ' 
issuance  of new certificates.221 
5.2.2.3   Conclusion  
5.75.   Russia has not establis hed that the Panel acted inconsistently with Article  11 of the DSU in 
finding that the third measure is of a "general" character and flows from CU Technical 
Regulation  001/2011. We therefore uphold  the Panel's finding , in paragraph  7.861  of the 
Panel  Report , that the third measure as a general non -recognition requirement, which the relevant 
Russian authorities considered to flow from CU  Technical Regulation 001/2011, had been 
demonstrated to exist.  
5.2.3   Russia's claim that the Panel erred by relieving Ukraine from the necessity of 
establishing a prima  facie  case that the third measure exists as a single measure  
5.2.3.1   Arguments on appeal  
5.76.   Russia requests us to reverse the Panel's finding that the third measure had been 
demonstrated to exist. Russia as serts that the Panel failed to conduct an objective assessment under 
Article  11 of the DSU by impermissibly relieving Ukraine of the duty to make a prima  facie case with 
respect to the existence of "a single measure composed of several different documents" .222 Relying 
on the Appellate  Body Reports in Argentina – Import Measures , Russia submits that a complainant 
challenging such a measure will "normally need to provide evidence of how the different components 
operated together as part of a single measure and how a single measure exists as distinct from its 
components".223 Thus, in Russia's view, Ukraine was required to make a prima  facie case with 
respect to the existence of the third measure as a single measure.224 Russia contends that Ukraine 
proceeded from "an unsubstantiated presumption of existence of a single measure capable of being 
challenged".225 Russia also argues that the different documents identified in Ukraine's panel request, 
namely , CU Technical Regulation 001/2011 and the letters, have different lega l force and scope of 
 
215 Russia's other appellant's submission, para.  150. 
216 Russia's other appellant's submission, paras.  149-150. 
217 Panel  Report, para.  7.829.  
218 Panel  Report, para.  7.829.  
219 Russia's other appellant's submission, para.  149 (referring to Russia's response to Panel 
question  No. 107).  
220 Panel  Report, para.  7.856.  
221 Panel  Report, para.  7.856.  
222 Russia's other appellant's submission, paras.  112-113. (e mphasis omitted)  
223 Russia's other appellant's submission, para.  108 (quoting Appellate  Body Reports,  
Argentina – Import Measures , para.  5.108).  
224 Russia's other appellant's submission, para.  112. 
225 Russia's other appellant's submission, para.  114. WT/DS499/AB/R  
 
- 33 - 
 
  application and that Ukraine was therefore required to explain how these different instruments 
operated together as a single measure.226  
5.77.   In response, Ukraine contends that it provided sufficient evidence and arguments to establish 
a prima facie case that the third measure existed as a single measure.227 According to Ukraine, the 
decision not to recognize the validity of certificates issued to Ukrainian railway products by other 
CU countries is found in Protocol  No. A 4-3 and the letters li sted in Annex  III to the panel request. 
Ukraine contends that these documents "clearly demonstrate that the Russian Federation imposed 
additional requirements", namely , the local production condition and the local registration condition, 
and that the Russi an authorities themselves relied on the text of CU  Technical Regulation  001/2011 
as a source of these additional requirements.228 Furthermore, Ukraine asserts that the instructions 
mentioned in Annex  III to its panel request "illustrat[e] the practical reali zation of the single 
measure".229 With respect to Russia's argument based on the alleged differences in the legal force 
and scope of the different documents, Ukraine contends that the decision not to accept in the 
territory of Russia the validity of the conf ormity assessment certificates issued in other CU  countries 
was explicitly prescribed in the letters identified in Annex  III to its panel request, irrespective of the 
nature of these documents.230 
5.2.3.2   Analysis  
5.78.   We begin by recalling that "any act or omission attr ibutable to a WTO  Member can be a 
measure of that Member for purposes of dispute settlement proceedings ."231 In identifying a measure 
and its characteristics, we have referred above to the standard under Article  11 of the DSU , which 
requires a panel to "thoroughly scrutinize the measure before it, both in its design and in its 
operation, and identify its princip al characteristics".232 Exactly what is required for a panel to do so 
is bound to vary depending on the circumstances of each case.233 Panels enjoy a margin of discretion 
to structure their assessment as they see fit, and they do not err under Article  11 of th e DSU unless 
they exceed their authority as the trier of facts.234 In terms of the question whether a complainant 
has met its prima  facie case to show the relevant features of the measure, a complainant need not 
definitively persuade a panel of the soundness  of its position. Instead, a complainant meets its 
prima  facie burden by presenting sufficient arguments and evidence "to raise a presumption in 
favour of its claim".235  
5.79.   In the present case, the Panel found that Ukraine's challenge was directed at Russia's decision 
not to recognize the validity of certificates issued for Ukrainian railway products by certification 
bodies in other CU countries. The Panel considered Ukraine's submission that this decision can be 
found in Protocol  No. A 4-3 and two individual d ecisions contained in the letters listed in Annex  III 
to Ukraine's panel request. The Panel also understood Ukraine to argue that Russia based its alleged 
decisions contained in Protocol  No. A 4-3 and the letters on its interpretation of CU  Technical 
Regul ation 001/2011.236 The Panel then proceeded with its own examination of the evidence to 
assess the arguments and evidence put forward by Ukraine. Specifically, the Panel examined 
Protocol  No. A 4-3 and the letters at issue, and noted that they indicate that the Russian authorities 
decided that the relevant certificates issued by the Belarusian certification body were not valid in 
 
226 Russia's other appellant's submission, paras.  115-116. 
227 Ukraine's appellee's submission, para.  154 (referring to Ukraine's first written submission to the 
Panel, paras.  351-378; second written submission to the Panel, paras.  320-381).  
228 Ukraine's appellee's su bmission, para.  155 (referring to Ukraine's first written submission to the 
Panel, para.  373).  
229 Ukraine's appellee's submission, para.  162. 
230 Ukraine's appellee's submission, para.  163. 
231 Appellate  Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  81. See also e.g. 
Appellate  Body Report, Australia – Apples , para.  171. 
232 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  586 (quoting Appellate  Body 
Reports, China – Auto Parts , para.  171).  
233 Appellate  Body Report, US – Carbon Steel , para.  157. See also e.g. Appellate  Body Reports, 
Argentina – Import Measures , para.  5.110.  
234 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  713. See also e.g. 
Appellate  Body Report, US – Wheat Gluten , para.  151. 
235 Appellate  Body Report, Canada – Dairy (Article  21.5 – New Zealand and US II) , para.  66. See also 
e.g. Appellate  Body Report, Chile – Price Band System (Article  21.5 – Argentina) , para.  134. 
236 Panel  Report, paras.  7.811 -7.812 (referring to Ukraine's first w ritten submission to the Panel, 
paras.  4, 315, 373, 377, and 398; second written submission to the Panel, para.  339).  WT/DS499/AB/R  
 
- 34 - 
 
  Russia's territory.237 The documents at issue also indicated that these decisions were the result of 
the Russian authorities' interpr etation of CU  Technical Regulation 001/2011 that a certificate cannot 
be validly issued under the regulation unless, inter alia , the products were manufactured within the 
CU territory.238 In the Panel's view, the decisions at issue were explicitly based on C U Technical 
Regulation 001/2011 as interpreted by the Russian authorities themselves.  
5.80.   Contrary to what Russia asserts on appeal, the Panel did not base its finding that the 
third measure existed on an unsubstantiated presumption of existence of a single me asure capable 
of being challenged. Rather, the Panel assessed the relationships and interactions among the 
different instruments at issue and confirmed that: (i)  the alleged decisions not to recognize 
certificates issued under CU  Technical Regulation 001/2 011 in other CU countries to products 
manufactured outside the CU  territory were contained in Protocol  No. A 4-3 and the letters 
submitted by Ukraine as evidence; and (ii)  these decisions were based on the Russian authorities' 
interpretation of CU  Technica l Regulation  001/2011. Accordingly, the Panel assessed the arguments 
and evidence put forward by Ukraine in order to make a prima  facie case that the third measure 
existed as a single measure.  
5.81.   In any event, we note that Russia's claim is based on its asser tion that differences in the legal 
force and scope of application of the different documents proffered as evidence of a single measure 
must be taken into consideration, on the basis of the panel's finding in US – COOL .239 However, we 
do not see that panel's statement to stand for the proposition Russia puts forward. In particular, the 
question before the panel in US – COOL  was whether to treat several requirements or provisions as 
a single measure or multiple measures, which is different from the question of what arguments and 
evidence are required for establishing a prima  facie case regarding the existence of a single meas ure 
as we face here.240 In addition, with respect to the question whether to treat several requirements 
or provisions as a single measure or multiple measures, the panel  in US – COOL  did not set out any 
specific criteria, but stressed that the analysis requi res case -specific considerations.241  
5.2.3.3   Conclusion  
5.82.   Russia has not established that Ukraine failed to meet its prima facie  burden to establish the 
existence of the third measure as a single measure. We therefore uphold  the Panel's finding , in 
paragraph  7.861 of the Panel  Report , that the third measure had been demonstrated to exist.  
5.2.4   Russia's claim that the Panel erred in finding that the third measure was within its 
terms of reference  
5.2.4.1   Arguments on appeal  
5.83.   Russia requests us to reverse the Panel's finding that th e third measure, as described in the 
Panel  Report, fell within the Panel's terms of reference. According to Russia, the Panel acted 
inconsistently with Articles  6.2 and 7.1 of the DSU by finding that the third measure, as framed by 
Ukraine in its first wri tten submission to the Panel and as determined to exist by the Panel, was 
within the Panel's terms of reference.242 Russia contends that , consequently, the measure assessed 
by the Panel was not the third measure that was within its terms of reference, and th at the Panel 
erred under Article  11 of the DSU by improperly expanding its jurisdiction, and examining and ruling 
on that measure.  
5.84.   First, Russia argues that the descriptions of the third measure in Ukraine's written submissions 
to the Panel are "different,  by description, nature, coverage, and content" from the third  measure 
identified in its panel request.243 In this regard, Russia alleges that the Panel improperly relied on 
the third narrative paragraph of section  II of the panel request in its analysis of whether the third 
measure described by Ukraine in its first written submission to the Panel was within t he Panel's 
 
237 Panel  Report, para.  7.846.  
238 Panel  Report, para.  7.847.  
239 Russia's other appellant's submission, para.  109 (referring to Panel  Reports, US – COOL , para.  7.50); 
opening statement at the oral hearing.  
240 Panel  Reports, US – COOL , para.  7.50. 
241 Panel  Reports, US – COOL , para.  7.50. 
242 Russia's other appellant's submission, para.  44. 
243 Russia's other appellant's submission, para.  69. WT/DS499/AB/R  
 
- 35 - 
 
  terms of reference.244 In Russia's view, "the plain meaning of the text of the third measure indicates 
that Ukraine challenged [CU]  Technical Regulation No.  001/2011 as such, read together with 
[Protocol  No. A 4-3] and the instructions mentioned i n Annex  III."245 Russia notes that, in contrast, 
Ukraine described the third measure in its first written submission as: "the decision  of the Russian 
Federation not to accept in its territory the validity of the conformity assessment certificates issued 
to Ukrainian producers in other CU countries"246; "additional requirements ", i.e. the local production 
condition and the local registration condition247; "the conformity assessment procedures " set out in 
Article  6(9) of CU  Technical Regulation  001/2011 read togeth er with a certain letter in Annex  III248; 
and " administration " of CU  Technical Regulation  001/2011, read together with Protocol  No. A 4-3 
and the decisions in Annex  III to the panel request.249 To Russia, these different permutations of the 
description of the third measure in Ukraine's first written submissions to the Panel constitute 
separate  measures.  
5.85.   Second, Russia argues that the Panel erred in referring to the third measure as "the alleged 
non-recognition requirement flowing from CU Technical Regulation 00 1/2011".250 Moreover, Russia 
alleges that the Panel referred to this measure in ways different from how it had been presented to 
it by Ukraine's  panel request. According to Russia, neither Ukraine's panel request nor its first written 
submission to the Panel  identified the third measure found to exist by the Panel. Russia contends 
that the Panel's characterization of the third measure was erroneous because "[t]he Panel's 
description of the measure is not how Ukraine presented its own understanding  of the third measure" 
in its panel request.251 As such, "the Panel's finding that it was Ukraine who had identified the third 
measure [as the Panel described it] [was] clearly wrong"252, and rather "the Panel played a 
complaining party's role in 'identify[ing ] the specific measure at issue' at the later stage in the 
process" by adopting a description of the measure that Ukraine did not present.253 
5.86.   In response, Ukraine requests us to uphold the Panel's finding that the third  measure 
challenged in its written subm issions was within the Panel's terms of reference.254 Ukraine contends 
that the Panel correctly identified the third  measure by reading the list of the instruments in 
section  II of its panel request together with the narrative paragraphs.255 Accordingly, Ukrai ne insists 
that its panel request "clearly and correctly identifie [d] the specific measure" at issue and met the 
requirements of Article  6.2 of the DSU.256 In addition, Ukraine recalls that the Panel found that there 
is no single way in which a challenged me asure must be identified.257 According to Ukraine, this is 
because whether a panel request adequately identifies the specific measures at issue depends on 
the particular context in which those measures exist and operate.258 In this case, Ukraine contends 
that the Panel correctly considered that Ukraine's panel request sufficiently identifies the measure 
at issue and met the requirements of Article  6.2 of the DSU.259 With respect to Russia's claim under 
Article  11 of the DSU, Ukraine contends that the Panel conduc ted a detailed analysis of the 
arguments raised by Russia.260 Noting that a finding of inconsistency under Article  11 cannot be 
based simply on the conclusion that the Appellate  Body might have reached a different factual finding 
from the one that the panel reached261, Ukraine contends that Russia failed to establish that the 
Panel acted inconsistently with Article  11.262 
 
244 Russia's other appellant's submission, paras.  61 and 65.  
245 Russia's other appellant's submission, para.  77. See also ibid., para.  70. 
246 Russia's other appellant's submission, para.  70. (emphasis added)  
247 Russia's other appellant's submission, para.  71. 
248 Russia's other appellant's submission, para.  72. 
249 Russia's other appellant's submission, para.  73. 
250 Russia's other appellant's submission, para.  85. 
251 Russia's other appellant's submission, para.  87. (e mphasis original)  
252 Russia's other appellant's submission, para.  87. 
253 Russia's other appellant's submission, para.  92. 
254 Ukraine's appellee's submission, para.  121. 
255 Ukraine's appellee's submission, para.  74. 
256 Ukraine's appellee's submission, para.  74. 
257 Ukraine's appellee's submission, para.  81 (referring to Panel  Report, para.  7.92).  
258 Ukraine's appellee's submission, paras.  80-81. 
259 Ukraine's appellee's submission, para.  82. 
260 Ukraine's appellee's submission, para.  84. 
261 Ukraine's appellee's submissio n, para.  83 (referring to Appellate  Body Report, US – Wheat Gluten , 
para. 151).  
262 Ukraine's appellee's submission, para.  85. WT/DS499/AB/R  
 
- 36 - 
 
  5.87.   According to Ukraine, based on a proper reading of its panel request, the third  measure 
identified in the panel request is Russia's " decision  not to accept in its territory the validity of the 
conformity assessment certificates issued to Ukrainian producers in other CU countries and not to 
register such producers for operation in its territory" .263 Viewed in this light, Ukraine considers that 
the t hird measure identified in its panel request had not been modified in its subsequent 
submissions264, and that the Panel's description of the third measure also comported with the 
third measure as identified in the panel request.265 On the basis of the foregoin g considerations, 
Ukraine also requests that we dismiss Russia's claim that its due process rights were prejudiced.266 
5.88.   With respect to Russia's claim that different permutations of the third measure in Ukraine's 
written submissions constitute different "meas ures", Ukraine first notes that the portions of the 
Panel  Report Russia takes issue with are merely "explaining the context of the third 
measure  … and … do not contain any additional meaning or definitions" of the third measure.267 
Ukraine contends that it h as not claimed  that the various permutations of the third measure are 
separate measures, but that they are "component parts" and "practical realization" of the third 
measure.268 With respect to Russia's claim that the Panel modified the third measure from ho w it 
was presented by Ukraine, Ukraine recalled that the third measure, properly read from the panel 
request, is "the decision of the Russian  Federation not to accept in its territory the validity of the 
conformity assessment certificates issued to Ukraini an producers in other CU countries" .269 That 
"decision" is contained in Protocol  No. A 4-3 explicitly referred to in the panel request, and it 
establishes the local production condition based on the authorities' interpretation of CU  Technical 
Regulation 001/2011.270 Thus, Ukraine contends that the Panel's description of the third  measure as 
"a general non -recognition requirement which [the relevant Russian authorities] considered to flow 
from CU  Technical Regulation 001/2011 as they interpreted i t" was correct.271 
5.2.4.2   Analysis  
5.89.   The participants disagree as to whether the third measure Ukraine challenged , and the Panel 
understood and assessed for conformity with the covered agreements , was the third  measure that 
Ukraine had identified in its panel request . In particular, the Panel found that the third measure 
identified in the panel request is the alleged requirement that Russia's authorities must not recognize 
certificates issued in other CU countries if the certified railway products were not produced in  a 
CU country.272 The Panel then found that the relevant Russian authorities applied a "general 
non-recognition requirement, which these authorities considered to flow from CU  Technical 
Regulation 001/2011 as they interpreted it", according to which the Russ ian authorities were not to 
recognize certificates issued under the regulation in other CU countries if the certified products were 
not produced in a CU country.273 For its part, Russia contends that what Ukraine had identified as 
the third measure in the pa nel request is "[CU]  Technical Regulation  001/2011 … read together with 
[Protocol  No. A 4-3 and the letters listed in Annex  III to the panel request]".274 Thus, to Russia, 
neither the third measure the Panel found to exist nor the third measure challenged by  Ukraine fell 
within the Panel's terms of reference.  
5.90.   With respect to Russia's separate claim that the Panel erred in its preliminary ruling , in 
section  5.1 above,  we disagreed with Russia that the Panel erred in finding that the third  measure 
identified in  Ukraine's panel request is the alleged requirement that Russia's authorities must not 
recognize certificates issued in other CU  countries if the certified railway products were not produced 
in a CU country.275 In particular, we found that the Panel was corr ect in considering the panel request 
as a whole, including the third narrative paragraph of section  II there of. Here, Russia claims that 
the Panel acted inconsistently with Articles  6.2 and 7.1 of the DSU by finding that the third measure, 
 
263 Ukraine's appellee's submission, para.  95. (emphasis original)  
264 Ukraine's appellee's submission, para.  97. 
265 Ukraine's appellee' s submission, paras.  106-107. 
266 Ukraine's appellee's submission, paras.  117-119. 
267 Ukraine's appellee's submission, para.  115.  
268 Ukraine's appellee's submission, para.  116. 
269 Ukraine's appellee's submission, para.  124. 
270 Ukraine's appellee's submission, p aras. 124-125. 
271 Ukraine's appellee's submission, para.  127. 
272 Panel  Report, para.  7.103.  
273 Panel  Report, para.  7.861.  
274 Russia's other appellant's submission, para.  70 (quoting Ukraine's panel request, p.  2). 
275 Panel  Report, para.  7.103.  WT/DS499/AB/R  
 
- 37 - 
 
  as described by Ukraine in its first written submission to the Panel, and as determined by the Panel, 
was within the Panel's terms of reference. This claim is based on the very premise we rejected in 
our analysis of Russia's claims relating to the Panel's preliminary ruli ng, namely , that the Panel erred 
in finding the third measure to consist of a requirement that Russia's authorities must not recognize 
certificates issued in other CU  countries if the certified railway products were not produced in a 
CU country. Having rejected that contention, we must for the same reason also reject the contention 
that the Panel erred in finding that the third measure, as framed by Ukraine in its first written 
submission to the Panel and as determined to exist by the Pan el, was within the Panel's terms of 
reference.  
5.2.4.3   Conclusion  
5.91.   Russia's claim regarding the terms of reference concerning the third  measure is based on the 
premise that the Panel erred in its preliminary ruling. We have rejected that allegation of error and 
upheld the Panel's preliminary ruling. Consequently, we uphold  the Panel's finding , in 
paragraphs  7.823 and 8.1.d.i of the Panel  Report , that the non -recognition requirement based on 
the local production condition is properly before the Panel.  
5.2.5   Russia's claim that the Panel erred by mak ing findings with respect to the alleged 
registration condition  
5.2.5.1   Arguments on appeal  
5.92.   Russia request s us to reverse the Panel's erroneous "findings" concerning the local registration 
condition.276 Russia recalls that the Panel found that "[n]on -recognition resulting from a failure to 
meet the alleged registration condition is … not a measure within [its] t erms of reference." 
Consequently, the Panel concluded that it will "not make findings with regard to those of Ukraine's 
claims about non -recognition that relate to the alleged registration condition".277 Russia contends 
that, despite this finding, the Panel continued making findings with respect to the alleged registration 
condition and it took these findings into account . Russia alleges that this constitutes an error under 
Article  11 of the DSU.278  
5.93.   Ukraine, for its part, requests us to uphold the Panel findin gs challenged by Russia.279 In 
Ukraine's view , the Panel did not exceed its mandate by referring to the local registration 
condition.280 
5.2.5.2   Analysis  
5.94.   Russia claims that the Panel failed to conduct an objective assessment of the matter before 
it because it "conside r[ed] the alleged [local] registration condition as if this element of the third 
measure as described in Ukraine's [first written submission] had been within the Panel's terms of 
reference" .281 Thus, the question before us is whether the challenged paragraph s of the Panel  Report 
regarding the local registration condition constitute an assessment of a matter that was not before 
the Panel.  
5.95.   Article  11 of the DSU provides that a panel should make an objective assessment of the 
"matter" before it. The term "matter " is referred to in Article  7 of the DSU. The Appellate  Body has 
stated that "[t]he measures and the claims identified in the panel request constitute the 'matter 
referred to the DSB', which serves as a basis for the panel's terms of reference under Articl e 7.1 of 
the DSU."282 Article  11 of the DSU also refers to the "matter" before the panel , and it requires a 
 
276 Russia's other appellant's submission, paras.  105-106. According to Russia, these "findings" are 
contained in paragraphs  7.847, 7.849 -7.850 (third and fourth sentences), 7.853 -7.854, 7.861, 7.897, 7.899, 
7.917, and 7.926 of the Panel Report. (Ibid., para.  106) 
277 Russia's other appellant's submission, para.  102 (quoting Panel  Report, para.  7.825).  
278 Russia's other appellant's submission, para.  101. 
279 Ukraine's appellee's submission, para.  150. 
280 Ukraine's appellee's submission, paras.  147 and 149.  
281 Russia' s other appellant's submission, para.  105. 
282 Appellate  Body Report, Korea – Radionuclides , para.  5.113 (referring to Appellate  Body Reports, 
Guatemala – Cement I , paras.  72-73; US – Carbon Steel , para.  125; Australia – Apples , para.  416;  
China – Raw Materials , para.  219).  WT/DS499/AB/R  
 
- 38 - 
 
  panel to make an objective assessment of that "matter".283 More specifically, Article  11 requires 
panels to conduct an objective assessment, including a n objective assessment of the facts of the 
case and the applicability of and conformity with the relevant covered agreements. Not every error 
in the appreciation of evidence will necessarily rise to the level of a failure by a panel to comply with 
its duties under Article  11 of the DSU. For example, some inconsequential inaccuracies may not 
necessarily constitute a violation of Article 11 of the DSU as long as they do not undermine the 
remainder of the panel's analysis.284 Only those errors that are so material that, "taken together or 
singly", they undermine the objectivity of the panel's assessment of the matter lead to a violation  
of Article  11 of the DSU.285 The Appellate  Body has also found that panels have not exceeded their 
terms of reference when making certain purely descriptive comments that did not rise to the level 
of legal findings or conclusions.286 
5.96.   With that in mind, we tur n to assess whether , in considering the local registration condition, 
the Panel exceeded its terms of reference and thereby acted inconsistently with Article  11 of the 
DSU. Russia takes issue with the following statements made by the Panel. First, paragrap hs 7.847 
and 7.849, in the section titled "Existence of the [third] measure at issue" of the Panel  Report , 
contain the Panel 's factual examination of the three letters from Russia's Federal ART to Ukrainian 
producers that Ukraine submitted as evidence. Sec ond, paragraphs  7.850 (the third and the 
fourth  sentences), 7.853, and 7.854 also appear in the same section , and the Panel indicated in 
these paragraphs its understanding of the "non -recognition requirement" and the 
Russian  authorities' interpretation of CU Technical Regulation 001/2011. Third, paragraph  7.861 is 
the conclusion of the "Existence of the [third] measure at issue" section, where the Panel found that 
the third measure had been demonstrated to exist. Lastly, paragraphs  7.897, 7.899, 7.917, 
and 7.926 appear in the sections addressing Ukraine's claims under Articles  I:1 and III:4 of the 
GATT  1994 with respect to the third  measure. More specifically, these paragraphs appear in the 
context of the Panel's assessment of whether Ukrainian railway produ cts and certain other goods 
are "like", and whether Russia treated Ukrainian railway products less favourably.  
5.97.   With respect to the first group of paragraphs in the Panel  Report challenged by Russia under 
this claim, namely , paragraphs  7.847 and 7.849 of th e Panel  Report, the Panel described the content 
of Protocol  No. A 4-3 and the letters submitted by Ukraine as evidence of the third measure. In 
paragraph  7.847, the Panel noted that the Russian authorities provided their interpretation of 
Articles  1(1) and  6(9) of CU  Technical Regulation 001/2011 in Protocol  No. A 4-3 and the letters. 
According to this interpretation, a certificate cannot be validly issued under CU  Technical 
Regulation  001/2011 unless the local production condition and the local registratio n condition are 
met. In paragraph  7.849, the Panel continued to describe the content of Protocol  No. A 4-3 and the 
letters, and clarified that the reference to the local registration condition is found in only two of the 
letters, but not in the Protocol.  
5.98.   In our view, these remarks by the Panel are descriptive comments regarding the evidence 
put forward by Ukraine concerning the third measure at issue. According to the Panel's examination 
of the evidence, particularly the 2016 letters, both the local product ion condition and the local 
registration condition were mentioned together in each letter. In this way, the local production 
condition and the local registration condition were part of the same  evidence put before the Panel 
by Ukraine to prove the existenc e of the third  measure. In this context, we do not consider that the 
Panel exceeded its terms of reference by merely describing the content of the evidence before it. As 
noted above, by making descriptive comments about a piece of evidence, a panel does not 
necessarily exceed its terms of reference, especially where such statements do not amount to legal 
findings or conclusions.  
5.99.   We now turn to the second group of paragraphs in the Panel  Report challenged by Russia 
under this claim. In the third and t he fourth sentences of paragraph  7.850, the Panel addressed 
Russia's argument that the letters concern products from only two Ukrainian producers and that the 
letters are not of general application. In response  to that argument , the Panel observed in the 
third sentence that nothing in the Protocol or the letters suggests that the Russian authorities' 
 
283 Appellate  Body Report, Korea – Radionuclides , para.  5.113.  
284 Appellate  Body Report, EC – Chicken Cuts , paras.  185-186. 
285 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  992 (quoting Appellate  Body 
Reports, EC – Fasteners (China) , para.  499; EC and certain member States – Large Civil Aircraft , para.  1318). 
See also Appellate  Body Reports, China – Rare Earths , paras.  5.178 -5.179.  
286 Appellate  Body Reports, Australia – Salmon , para.  110; US – Wool Shirts and Blou ses, p. 17, 
DSR 1997:I,  p. 338. WT/DS499/AB/R  
 
- 39 - 
 
  interpretation of Articles  1(1) and  6(9) of CU  Technical Regulation 001/2011 would not be generally 
applicable and would apply only to Ukrainian products. In t he fourth sentence, the Panel conclude d 
that "the relevant documents provide a general interpretation" on the basis of its examination of 
Protocol  No. A 4-3 and the letters. Turning next to paragraphs  7.853 and 7.854, we note that the 
Panel, in paragraph  7.853, considered that Protocol  No. A 4-3 and the letters support its view that 
the Russian authorities applied a general non -recognition requirement, which they considered to 
flow from CU  Technical Regulation 001/2011 as they interpreted it. In paragraph  7.854, the Panel 
stressed that the evidence indicates that the non -recognition requirement flows from CU  Technical 
Regulation  001/2011 as "interpreted" by the Russian authorities. Accordingly, the Panel found that 
Ukraine's panel request correctly identifie d CU Technical Regulation 001/2011 as the source of the 
non-recognition requirement as interpreted and applied by Russia in the Protocol and the letters.  
5.100.   We do not see that the Panel made findings regarding the local registration condition per se 
in these  paragraphs. Notably, there is no mention of the local registration condition. While 
paragraphs  7.853 and 7.854 refer to the "non -recognition requirement", which, based on the Panel's 
examination of the evidence in preceding paragraphs, encompasses the loc al registration condition, 
it also encompasses the local production condition, which the Panel found to be within its terms of 
reference. Similarly, in paragraph  7.850, the Panel concluded that "[t]he relevant documents 
provide a general interpretation ." This interpretation includes not only the interpretation of 
Article  6(9) of CU  Technical Regulation 001/2011 that concerns the local registration condition , but 
also the interpretation of Article  1(1) of CU  Technical Regulation 001/2011 that concerns the lo cal 
production condition. In our view, the Panel considered the "non -recognition requirement" and the 
interpretation of CU  Technical Regulation 001/2011 provided in the documents at issue as a whole , 
and extrapolated relevant features to clarify its unders tanding of the third measure at issue. 
For example, in paragraph  7.853, the Panel considered that Protocol  No. A 4-3 and the letters show 
that a general "non -recognition requirement" was applied, before concluding that "[t]he situations 
in which that requi rement was applied included those where a certificate had been issued in another 
CU country in violation of the production condition." In paragraphs  7.850 and 7.854, the Panel 
concludes that the "non -recognition requirement" flows from CU  Technical Regulat ion 001/2011 and 
that the documents provide a "general" interpretation, which underpin the Panel's understanding 
that the third measure  is of a general character and flows from CU  Technical Regulation 001/2011.287 
As we see it, in the challenged paragraphs o f the Panel  Report, the Panel considered evidence 
concerning the local production condition and the third measure at issue, but it did not make any 
findings regarding the local registration condition per se. 
5.101.   In paragraph  7.861, the Panel concluded that the  third measure had been demonstrated to 
exist. In so doing, the Panel found that the third measure consists of the non -recognition 
requirement, which the Russian authorities considered to flow from CU  Technical 
Regulation  001/2011 as they interpreted it, for products not meeting the local production condition 
or the local registration condition. In this context, the Panel made reference to the local registration 
condition when describing the content of the "non -recognition requirement". However, in our view, 
this reference to the local registration condition is part of the Panel's reasoning  for its finding 
regarding the exi stence of the third  measure. In this regard, we recall that the Panel found that the 
evidence, i.e.  Protocol  No. A 4-3 and the letters, contained both the local production condition and 
the local registration condition. As such, these documents supported t he Panel's conclusion that 
Russia applied the "non -recognition requirement" encompassing both conditions, which in turn, 
formed the basis of the Panel's finding that the third measure had been demonstrated to exist. Thus, 
we do not find that the Panel made  any "finding" regarding the local registration condition per se, 
but rather that the Panel based its conclusion regarding the existence of the third measure on its 
examination of the evidence before it.  
5.102.   Moreover, the Panel's reference to the local registr ation condition in the "Existence of the 
[third] measure" section should be viewed in light of the Panel's conclusion in that section contained 
in paragraph 7.862 that "the non -recognition requirement falls within the Panel's terms of reference 
only to the  extent that it requires non -recognition in situations where the certified products were not 
 
287 The Panel found that the "third measure ha[d] been demonstrated to exist" on the basis that the 
evidence supported the conclusion that the relevant Russian authorities "applied a general non -recognition 
requirement, which these authorities considered to flow from CU  Technical Regulation 001/2011 as they 
interpreted it". Subsequently, the Panel clarified that the third measure within its terms of reference concerns 
only the local production condition. (Panel  Report, paras.  7.861-7.862)  WT/DS499/AB/R  
 
- 40 - 
 
  produced in a CU country."288 The Panel's conclusion demonstrates that it was mindful of the 
limitation of its terms of reference, and in particular of the fact that  its terms of reference did not 
include the local registration condition. As we see it, paragraph 7.862 thus qualifies the Panel's 
findings regarding the existence of the third measure in the sense that the Panel's findings concern 
that measure only as far  as the local production condition is concerned.  
5.103.   We now turn to the third group of paragraphs of the Panel  Report challenged by Russia under 
the claim that the Panel acted inconsistently with Article  11 of the DSU by making "findings" 
regarding the local r egistration condition, consisting of paragraphs  7.897, 7.899, 7.917, and 7.926 
of the Panel  Report. Paragraphs 7.897 and  7.899 are in the Panel's analysis of like imported products 
in the context of Ukraine's claim under Article  I:1 of the GATT  1994 with r espect to the 
third measure. In paragraph  7.897, the Panel examined Ukraine's argument289 that the 
third measure distinguishes between products based solely on the origin of the product. The Panel 
began its analysis by recalling that , under the "non -recognit ion requirement" , the Russian authorities 
would not recognize a certificate issued under CU  Technical Regulation  001/2011 by other 
CU countries for a product manufactured in Ukraine. The Panel compared a Ukrainian product , on 
the one hand , and a Belarusian  and Kazakh product , on the other. In making this comparison, the 
Panel assumed that the applicants in each case were registered in the country of the relevant 
conformity authorities, i.e.  that they satisfied the local registration condition. Based on this  analysis, 
the Panel concluded that the only basis for the difference in treatment between the products is where 
they were produced. Consequently, the Panel found that the non -recognition requirement in some 
situations draws a distinction based on the orig in of the products. In paragraph  7.899, the Panel, 
based on its analysis, concluded that "the non -recognition requirement in certain situations results 
in an origin -based distinction between imported railway products, [and] the likeness of the products 
can be presumed."290 
5.104.   Paragraphs 7.917 and 7.926 of the Panel  Report are found in the section containing the 
Panel's analysis of the third  measure with respect to Ukraine's claim under Article  III:4 of the 
GATT  1994. In paragraph  7.917, the Panel examined whethe r imported and domestic products are 
"like". Similarly to its analysis under Article  I:1, the Panel began by recalling that under the 
non-recognition requirement, the Russian authorities would not recognize a certificate issued under 
CU Technical Regulatio n 001/2011 by other CU  countries for a product manufactured in Ukraine. 
The Panel then compared a Ukrainian product to a Russian product. In making this comparison, the 
Panel assumed that the applicants in each case were registered in the country of the relevant 
conformity authorities, i.e. that they had satisfied the local registration condition. Based on this 
analysis, the Panel concluded that , in certain situations, the Ukrainian products and the domestic 
(Russian) products were treated differently bas ed solely on where they were produced. In 
paragraph  7.926, the Panel examined whether there is "less favourable" treatment within the 
meaning of Article  III:4. The Panel recalled that under the non -recognition requirement, a product 
produced in Ukraine and  a product produced domestically (in Russia) will be treated differently in 
certain situations, namely , when both products satisfy the local registration condition. Accordingly, 
the Panel concluded that "the non -recognition requirement in certain situation s (when the applicant 
for certification is registered at the place where the certification body is also located) distorts the 
conditions of competition to the detriment of that sub -category of imported products which 
comprises products not produced in a CU  country ." Moreover, the Panel determined that the 
non-recognition requirement accords "less favourable" treatment to these imported products as 
compared to the like domestic product s.291 
5.105.   In our view, these findings by the Panel concerned the third measure a s it relates to the 
local production condition. Specifically, as summarized above, in these paragraphs the Panel found 
that the Ukrainian products were treated differently based on where they were produced . The Panel 
made no findings about the treatment ba sed on whether an applicant company is registered in the 
country of the conformity assessment authority. It is true that the Panel made remarks regarding 
the local registration condition, but these were only made in order to isolate the impact of the local  
 
288 Panel  Report, para.  7.862.  
289 Panel  Report, para.  7.896.  
290 The Panel recalled that such situations would arise where:  
[T]wo imported railway products have been certified in a CU country; one was produced in the 
CU, the other was produced outsi de the CU; and the applicant in each case was registered in the 
CU country where it applied for the certificate.  
(Panel  Report, para.  7.899)  
291 Panel  Report, para.  7.926.  WT/DS499/AB/R  
 
- 41 - 
 
  production condition. In other words, had the Panel not assumed that the products at issue were 
comparable in all aspect s other than their place of manufacture, the Panel could not render a finding 
regarding the impact of the local production condition. T hus, we consider that these remarks do not 
constitute findings per se , but that the Panel was describing aspects of its comparative analysis. 
Therefore, we do not consider these remarks regarding the local registration condition to be an 
assessment or "fin ding" regarding the local registration condition per se . 
5.2.5.3   Conclusion  
5.106.   The Panel's statements challenged by Russia as constituting "findings" concerning the local 
registration condition were either merely descriptive statements or concerned the third measure 
within the Panel's terms of reference. Consequently, we find that Russia has failed to establish that 
the Panel acted inconsistently with Article  11 of the DSU by continuing to make findings with respect 
to a matter that was not within its terms of reference.  
5.3  Ukraine's claim under Article  5.1.1 of the TBT  Agreement  
5.107.   We now turn to Ukraine's claim that the Panel erred in its interpretation and application of 
Article  5.1.1 of the TBT  Agreement and failed to make an objective assessment of the matter before 
it pursuant to Article  11 of the DSU in finding that Ukraine fa iled to establish that Russia had acted 
inconsistently with Article  5.1.1 of the TBT  Agreement. Ukraine requests us to reverse the Panel's 
conclusions in paragraphs  8.1.b.i and 8.1.c.i of the Panel  Report.292  
5.3.1   The Panel's findings  
5.108.   The Panel noted that Articl e 5.1.1 of the TBT  Agreement establishes obligations to provide 
national treatment and most -favoured nation treatment with regard to access for suppliers from 
other Members to covered conformity assessment procedures of importing Members.293 In the 
Panel's v iew, an importing Member acts inconsistently with Article  5.1.1 if three elements are 
established: (i)  the suppliers of another Member that have been granted less favourable access are 
suppliers of products that are "like" the products of domestic supplier s or suppliers from any other 
country that have been granted more favourable access; (ii)  the importing Member (through the 
preparation, adoption, or application of a covered conformity assessment procedure) "grants access" 
for suppliers of products from a nother Member "under conditions less favourable" than those 
accorded to suppliers of domestic products or products from any other country; and (iii)  the 
importing Member grants access under conditions less favourable for suppliers of like products "in a 
comparable situation".294 
5.109.   Regarding the first element, the Panel considered that the same criteria that are applied for 
determining whether products are "like" in the context of Article  2.1 of the TBT  Agreement are 
applicable in the context of Article  5.1.1.295 With respect to the phrase "conditions no less 
favourable", the Panel observed that differential access conditions would be relevant under 
Article  5.1.1 if they modified the conditions of competition, or competitive opportunities, among 
relevant suppliers of like products to the detriment of suppliers of the complaining Member.296 The 
Panel recalled that Ukraine challenged not the preparation or adoption of a conformity assessment 
procedure (i.e. not a conformity assessment procedure as such),  but the application of a conformity 
assessment procedure to particular Ukrainian suppliers (i.e. individual instances of application of the 
procedure).297 According to the Panel, in the case of such challenge, less favourable access 
conditions exist "where the importing Member denies or limits the right or possibility of a supplier of 
another Member to have conformity assessment activities undertaken under the rules of the 
applicable conformity assessment procedure, either in respect of the entire conformity  assessment 
procedure or any of its relevant parts, but does not deny or limit the right or possibility of access of 
another supplier of a like product from the importing Member or any other country."298  
 
292 Ukraine's appellant's submission, paras.  175 and 258.  
293 Panel  Report, para.  7.248.  
294 Panel  Report, para.  7.251.  
295 Panel  Report, para.  7.254.  
296 Panel  Report, para.  7.260.  
297 Panel  Report, para.  7.261.  
298 Panel  Report, para.  7.261.  WT/DS499/AB/R  
 
- 42 - 
 
  5.110.    Furthermore, the Panel took account of the fact that , unlike in Article  2.1 of the 
TBT Agreement, the text of Article  5.1.1 qualifies the non -discrimination obligations by including the 
phrase "in a comparable situation".299 In the Panel's view, this phrase "confirms that Article  5.1.1 
permits differential ac cess conditions where they concern situations that are not comparable", and 
"preserves a degree of flexibility for the importing Member to design and apply its conformity 
assessment procedures in a situation -appropriate manner".300 The Panel was therefore no t 
persuaded that there is a need to import into Article  5.1.1 the test developed by the Appellate  Body 
for determining the existence of less favourable treatment under Article  2.1 of the 
TBT Agreement.301 
5.111.   With regard to the interpretation of the term "in a c omparable situation", the Panel noted 
that it "qualifies the preceding part of the first sentence of Article  5.1.1, that is, the requirement to 
grant access under no less favourable conditions".302 The Panel considered that "this phrase warrants 
a comparison  of differential conditions of access with a view to determining whether the less 
favourable conditions of access are being granted despite the situation being comparable."303 For 
the Panel, the relevant context for assessing whether a situation is comparabl e, such that no less 
favourable access conditions must be granted, is that of assessing conformity under the rules of the 
procedure and conducting conformity assessment activities. Referring to the definition of conformity 
assessment procedures in Annex  1.3 to the TBT  Agreement, the Panel concluded that "aspects of a 
situation that have a bearing on, for instance, the ability of the importing Member to undertake such 
activities under the rules of the procedure with adequate confidence would, in principle, s eem to be 
relevant", and that "the relevant aspects of a situation would include aspects specific to the suppliers 
who are claimed to have been granted access under less favourable conditions or to the location of 
the suppliers' facilities."304 
5.112.   Turning to th e application of Article  5.1.1 of the TBT  Agreement to the  14 instructions 
through which the FBO suspended valid certificates of conformity held by Ukrainian producers of 
railway products, the Panel considered that Ukraine "has the burden of demonstrating that Russia 
applied its conformity assessment procedure for railway products so as to grant access for suppliers 
of like products originating in Ukraine under conditions less favourable than those accorded to 
suppliers of like Russian products or like prod ucts from other countries, in a comparable situation" .305 
For the purpose of examining the elements necessary to demonstrate an inconsistency with 
Article  5.1.1, the Panel assumed that the relevant Ukrainian suppliers are suppliers of railway 
products "like"  those of the Russian and other foreign suppliers that Ukraine alleges to enjoy better 
access conditions.306  
5.113.   With respect to the question whether Russia granted access for specific suppliers of products 
from another Member under conditions less favourable, the Panel considered that the inspection 
controls at issue fell within the definition of "conformity assessment procedures" in Annex  1.3 to the 
TBT Agreement.307 The evidence before the Panel demonstrated that, through the 14  instructions, 
the FBO suspended valid certificates held by the five affected suppliers of Ukrainian railway products 
with the reason that the conditions for inspection control were not present at the time of issuance 
of the corresponding instruction, and therefore "did not grant the affe cted suppliers of Ukrainian 
railway products access to inspection control, which is part of Russia's conformity assessment 
procedure for railway products".308 At the same time, the FBO granted suppliers of Russian and 
European railway products access to such  inspection control.309 For the Panel, this difference 
modified the conditions of competition for access to Russia's conformity assessment procedure for 
railway products to the detriment of each of the affected Ukrainian suppliers.310 The Panel thus found 
that "Russia, by issuing the 14  challenged instructions, applied its conformity assessment procedure 
 
299 Panel  Report, para.  7.271.  
300 Panel  Report, para.  7.272.  
301 Panel  Report, para.  7.273.  
302 Panel  Report, para.  7.282. (fn  omitted)  
303 Panel  Report, para.  7.282.  
304 Panel  Report, para.  7.283.  
305 Panel  Report, paras.  7.286 -7.287.  
306 Panel  Report, para.  7.292.  
307 Panel  Report, para.  7.298.  
308 Panel  Report, para.  7.301.  
309 Panel  Report, para.  7.302.  
310 Panel  Report, para.  7.305.  WT/DS499/AB/R  
 
- 43 - 
 
  so as to grant access for the relevant suppliers of Ukrainian railway products under conditions less 
favourable than those accorded to suppliers of Russian and  European railway products."311 
5.114.   Concerning the question whether Ukrainian suppliers and those from other Members are 
"in a comparable situation", the Panel took the view that "conducting an objective assessment of 
the matter entails reviewing the explanation s provided both in the challenged instructions and by 
Russia in these proceedings" on the basis of the evidence on the record.312 In its overall assessment 
of the evidence on the record, the Panel underscored that while importing Members should not lightly 
be allowed to invoke an inability to carry out parts of their conformity assessment procedure, as this 
could undermine market -access commitments, inspections are often carried out abroad by 
government officials of the importing Member and in some situations  their life or health may be at 
risk.313 For the Panel, in the specific circumstances of the dispute, "the importing Member in applying 
Article  5.1.1  may confront the need to weigh and balance the interests of suppliers of products 
originating in the territo ries of other Members in an assessment of conformity against its interest in 
safeguarding the life or health of its employees when undertaking conformity assessment activities, 
such as inspections, abroad."314  
5.115.   Based on the evidence before it, the Panel cons idered that the FBO could be justifiably 
concerned about the life or health of any employees that it sen t to Ukraine to carry out inspections. 
Specifically, the Panel took the view that the situation "during the relevant time -period was marked 
by instabili ty and unpredictability, and this was also reflected in the travel advice that Russia's 
Ministry of Foreign Affairs issued for the benefit of its own citizens".315 In sum, the Panel found that, 
"during the relevant time -period, the FBO did not act outside it s margin of discretion by balancing 
the interests of Ukrainian suppliers and FBO employees and then erring on the side of ensuring the 
safety of the latter and determining that the conditions for carrying out inspection control in Ukraine 
were not satisfie d."316 The Panel therefore stated that, "in this instance related to risks to life and 
health of FBO inspectors, over the time -frame examined above, the situation in Ukraine was not 
comparable to other countries."317 On this basis, the Panel concluded that, "b etween April 2014 and 
December 2016, Ukrainian suppliers of railway products were denied no less favourable access in a 
situation that was not comparable to the situation in which Russia granted access to suppliers of 
Russian railway products and suppliers  of railway products from other countries."318 
5.3.2   Claims and arguments on appeal  
5.116.   On appeal, Ukraine requests us to reverse the Panel's conclusions that Ukraine failed to 
establish that Russia had acted inconsistently with Article  5.1.1 of the TBT  Agreement.319 In 
Ukraine's view, the Panel erred in its interpretation and application of the phrase "in a comparable 
situation" in Article  5.1.1 by failing to elaborate on what exactly has to be compared. Specifically, 
Ukraine considers that the Panel provided a very limited interpretation of the phrase "in a comparable 
situation" and did not clarify whether an assessment of the situation of a country as a whole or that 
of the relevant suppliers is required.320 Ukraine also argues that, in applying this provision to the 
facts of the case, the Panel focused on the risk to life or health of Russian inspectors , rather than on 
aspects specific to the suppliers  at issue or the location of the suppliers' facilities.321 Furthermore, 
Ukraine takes issue with an analogy the Panel ma de between the objective of conformity assessment 
procedures under Article  5.1.1 of the TBT  Agreement, on the one hand, and the legitimate objective 
of protecting human life or health under Article  2.2 of that  agreement, on the other. According to 
Ukraine,  the phrase "a comparable situation" may not be understood as a basis for an importing 
Member to act for the protection of the interests recognized in the sixth recital of the preamble of 
 
311 Panel  Report, para.  7.306.  
312 Panel  Report, para.  7.314.  
313 Panel  Report, paras.  7.374 -7.375.  
314 Panel  Report, para.  7.376.  
315 Panel  Report, para.  7.380.  
316 Panel  Report, pa ra. 7.384.  
317 Panel  Report, para.  7.387.  
318 Panel  Report, para.  7.387.  
319 Ukraine's appellant's submission, paras.  175 and 258 (referring to Panel Report, paras.  7.387, 
7.393 -7.394, 8.1.b.i, and 8.1.c.i).  
320 Ukraine's appellant's submission, paras.  236 and 257 . See also Ukraine's opening statement at the 
oral hearing, para.  4. 
321 Ukraine's appellant's submission, paras.  247-248 and 255 (referring to Panel  Report, 
paras.  7.283 -7.284).  WT/DS499/AB/R  
 
- 44 - 
 
  the TBT  Agreement without the protection of those interests being di rectly linked to the situation of 
the suppliers subject to the measures at issue with respect to conditions of access to the conformity 
assessment procedure.322  
5.117.   Ukraine further submits that the Panel failed to make an objective assessment of the matter 
in its analysis of Article  5.1.1 of the TBT  Agreement by failing to: (i)  accurately determine adequate 
burden of proof; (ii)  apply the correct standard of review; and (iii)  conduct an objective assessment 
of Russia's evidence concerning the security situation in Ukraine in its examination of whether Russia 
granted to Ukrainian suppliers' access under less favourable conditions in a comparable situation.  
5.118.   In response, Russia requests us to uphold the Panel's conclusions under Article  5.1.1.323 
Russia submits that t he Panel correctly interpreted and applied the term "in a comparable situation" 
under Article  5.1.1 of the TBT  Agreement.324 In particular, Russia argues that the "supplier -specific" 
assessment of comparability suggested by Ukraine is an excessively literal reading of Article  5.1.1. 
In Russia's view, the negotiating history of Article  5.1.1 strongly suggests that it is the situations in 
particular countries that should be compared and not those of particular suppliers.325 Russia 
considers that, having stated th at "whether a situation is comparable must be assessed on a 
case-by-case basis"326 and having scrutinized the evidence on the record in its totality, the Panel 
arrived at the correct conclusion that "in this instance related to risks to life and health of 
FBO inspectors … the situation in Ukraine was not comparable to [that in] other countries."327 
Regarding the allegation that the Panel erred in drawing an analogy of legitimate objective under 
Article  2.2 of the TBT  Agreement, Russia points out that Ukraine di d not refer to particular 
paragraphs of the Panel  Report where the Panel based its decision on the similarity between 
Articles  2.2 and 5.1.1.328 In addition, according to Russia, such an analogy is not inferable implicitly 
from the Panel's reasoning, insofar  as the link between those two provisions in the analysis is too 
remote to consider that the Panel applied the legitimate objective under Article  2.2 to Article  5.1.1 
by analogy.329 
5.3.3   The Panel's interpretation of Article  5.1.1 of the TBT  Agreement  
5.119.   Article  5.1 of the TBT  Agreement provides, in relevant part:  
Article  5 
Procedures for Assessment of Conformity by Central Government Bodies  
5.1 Members shall ensure that, in cases where a positive assurance of conformity with 
technical regulations or standards is req uired, their central government bodies apply 
the following provisions to products originating in the territories of other Members:  
5.1.1 conformity assessment procedures are prepared, adopted and applied so 
as to grant access for suppliers of like products  originating in the territories of 
other Members under conditions no less favourable than those accorded to 
suppliers of like products of national origin or originating in any other country, in 
a comparable situation; access entails suppliers' right to an assessment of 
conformity under the rules of the procedure, including, when foreseen by this 
procedure, the possibility to have conformity assessment activities undertaken at 
the site of facilities and to receive the mark of the system[.]  
 
322 Ukraine's appellant's submission, paras.  252-254. See also Ukraine's opening  statement at the oral 
hearing, para.  20. 
323 Russia's appellee's submission, para.  218 (referring to Panel  Report, paras.  7.387, 8.1.b.i, 
and 8.1.c.i).  
324 Russia's appellee's submission, para.  203. 
325 Russia's appellee's submission, para.  213 (referring to Uk raine's appellant's submission, paras.  240 
and 242).  
326 Russia's appellee's submission, para.  215 (quoting Panel  Report, para.  7.283).  
327 Russia's appellee's submission, para.  216 (quoting Panel  Report, para.  7.387).  
328 Russia's appellee's submission, para.  210. 
329 Russia's appellee's submission, para.  211. WT/DS499/AB/R  
 
- 45 - 
 
  5.120.   The title of Artic le 5 of the TBT  Agreement indicates that the provision relates to procedures 
for the assessment of conformity. Obligations therein apply with respect to a Member's "central 
government bodies" where the Member requires "a positive assurance of conformity" w ith technical 
regulations or standards. Conformity assessment procedures are defined in Annex  1.3 to the 
TBT Agreement as "[a]ny procedure used, directly or indirectly, to determine that relevant 
requirements in technical regulations or standards are fulfi lled". Pursuant to the explanatory  note to 
Annex  1.3, conformity assessment procedures "include,  inter alia, procedures for sampling, testing 
and inspection; evaluation, verification and assurance of conformity; registration, accreditation and 
approval as well as their combinations".  
5.121.   Article  5.1.1 of the TBT  Agreement consists of two clauses. Its first clause establishes a 
national treatment obligation and a most -favoured nation treatment obligation regarding the 
conditions of access to an assessment of co nformity to suppliers of like products. In particular, the 
first clause of Article  5.1.1 specifies that conformity assessment procedures are to be prepared, 
adopted, and applied so as to grant access for suppliers of like products originating in the territ ories 
of other Members under conditions no less favourable than those accorded to suppliers of like 
products of national origin or originating in any other country, in a comparable situation. Article  5.1.1 
covers the preparation, adoption, and application of conformity assessment procedures. In turn, the 
second clause defines "access" for purposes of the obligations in Article  5.1.1 as entailing "suppliers' 
right to an assessment of conformity under the rules of the procedure, including, when foreseen by 
this procedure, the possibility to have conformity assessment activities undertaken at the site of 
facilities and to receive the mark of the system".  
5.122.   In contrast to other non -discrimination obligations, such as Article  III:4 of the GATT  1994 
and Article  2.1 of the TBT  Agreement, the obligations under Article  5.1.1 of the TBT  Agreement 
attach to the suppliers  of products as opposed to the product itself. At the same time, Article  5.1 
stipulates that all provisions contained in Article  5 shall apply "to product s" originating in the 
territories of other Members. Thus, while it is the suppliers  that should be granted access to 
conformity assessment under Article  5.1.1, it is the products  that receive "a positive assurance of 
conformity with technical regulations o r standards". Moreover, the fact that the adjective "like" 
attaches to the noun "products" and not to "suppliers" makes clear that the "likeness" requirement 
in Article  5.1.1 relates to the products. Indeed, the "likeness" of the products at issue is centr al in 
defining the scope of the non -discrimination obligations under Article  5.1.1, such that there is no 
obligation to grant access to conformity assessment under no less favourable conditions, if the 
products being supplied are not "like". In other words , the products at issue must be in a competitive 
relationship in the marketplace. Accordingly, the determination of likeness under Article  5.1.1 
involves "a determination about the nature and extent of a competitive relationship between and 
among the produ cts at issue".330 
5.123.   As the second clause of Article  5.1.1 of the TBT  Agreement makes clear, the focus of the 
non-discrimination obligations under Article  5.1.1 is on the conditions for access  to a conformity 
assessment granted to suppliers, i.e. on the factors  or circumstances under which the opportunity 
to benefit from conformity assessment is accorded to those suppliers. Article  5.1.1 prohibits the 
granting of access to conformity assessment under less favourable conditions for suppliers of like 
products orig inating in the territories of other Members, as compared to suppliers of like products of 
national origin or originating in any other country.331 It thus requires an assessment of whether the 
conditions for access to conformity assessment granted by the regu lating Member to suppliers of 
domestic or third -country products modify the conditions of competition to the detriment of suppliers 
of like imported products.332 
5.124.   In addition, the national treatment and most -favoured nation treatment obligations in 
Article  5.1.1 are qualified by the phrase "in a comparable situation". The word "comparable" is 
defined as "[a]ble to be compared, capable of comparison".333 Two things can be considered to be 
comparable "when there are sufficient similarities between the things that are compared as to make 
 
330 See, for Article  2.1 of the TBT  Agreement, Appellate  Body Report, US – Clove Cigarettes , para.  120. 
331 Similarly to Article  I:1 of the GATT  1994, Article  5.1.1 extends the non -discrimination requirement to 
granting access under conditions no less favourable between suppliers from a WTO  Member and suppliers of 
like products from "any other country".  
332 See, for Article  III:4 of the GATT  1994, Appellat e Body Report, Korea – Various Measures on Beef , 
para. 137. 
333 Oxford English Dictionary online, definition of "comparable", 
https://www.oed.com/view/Entry/37424.  WT/DS499/AB/R  
 
- 46 - 
 
  that comparison worthy or meaningful".334 Turning to the word "situation", we recall that the 
obligations under Article  5.1.1 of the TBT  Agreement concern the conditions for granting access to 
conformity assessment for suppliers of li ke products. Thus, even though the word "situation" could 
potentially encompass a large number of factors on the basis of which a comparison could be made, 
the factors relevant for purposes of establishing the existence of a "comparable situation" under 
Article 5.1.1 would be those with a bearing on the conditions for granting access to conformity 
assessment in a particular case.335 Moreover, the second clause of Article  5.1.1 describes access as 
"suppliers' right to an assessment of conformity under the rule s of the procedure ".336 Since this 
procedure sets out the conditions for access to conformity assessment in a particular case, its rules 
will also be relevant for defining the universe of situations to be compared.  
5.125.   Being placed at the end of the first claus e of Article  5.1.1 of the TBT  Agreement and 
separated by a comma from the rest of the clause, the words "in a comparable situation" relate to 
the entire phrase "so as to grant access for suppliers … under conditions no less favourable", and 
not only to the  phrase "in any other country" or the "suppliers of like products". Thus, "in a 
comparable situation" is not limited to qualifying only the suppliers or countries from which the like 
products originate, rather it qualifies the entire requirement to grant a ccess to suppliers of like 
products under no less favourable conditions. This indicates that whether a situation is "comparable" 
for purposes of Article  5.1.1 should be assessed in relation to the measure at issue granting access 
to conformity assessment t o suppliers of like products and in light of the particular circumstances of 
each case. In addition, we consider that the function of conformity assessment procedures, which is 
to determine that relevant requirements in technical regulations or standards a re fulfilled, as 
indicated in Annex  1.3 to the TBT  Agreement, provides some guidance for the determination of a 
"comparable situation".337 In light of this function, factors that impact the ability of Members to make 
a determination that relevant requirement s in technical regulations or standards are fulfilled may be 
relevant in the inquiry of "a comparable situation".  
5.126.   We further note that the obligations under Article  5.1.1 concern "access for suppliers  of like 
products"338 to conformity assessment. Moreover, the second clause of Article  5.1.1 defines "access" 
as "suppliers'  right to an assessment of conformity".339 It is therefore the suppliers of like products 
that are entitled to an assessment of conformity under the rules of the procedure and under 
conditions no less favourable. The second clause of Article  5.1.1 further specifies that this includes, 
when foreseen by the conformity assessment procedure at issue, "the possibility to have conformity 
assessment activities unde rtaken at the site of facilities and to receive the mark of the system". This 
language in the second clause of Article  5.1.1 reaffirms the provision's focus on the suppliers and 
the modalities of their right of access to conformity assessment. The focus on  the situation of 
suppliers in Article  5.1.1 is different from provisions containing similar language, for instance the 
reference to "countries where the same conditions prevail" in the chapeau  of Article  XX of the 
GATT  1994, and "Members where identical o r similar conditions prevail" in Article  2.3 of the 
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS  Agreement), both of 
which qualify requirements that measures do not constitute a means of arbitrary or unjustifiable 
discrimination . Whereas the chapeau  of Article  XX of the GATT  1994 relates to "countries" and 
Article  2.3 of the SPS  Agreement to "Members", Article  5.1.1 of the TBT  Agreement specifically 
 
334 Appellate  Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  476. 
335 In the context of the chapeau  of Article  XX of the GATT  1994, the Appellate  Body similarly observed 
that while the term "conditions" could "potentially encompass a number of circumstances facing a country", in 
the specific context in which that term appears i n the chapeau  "only 'conditions' that are relevant  for the 
purpose of establishing arbitrary or unjustifiable discrimination in the light of the specific character of the 
measure at issue and the circumstances of a particular case should be considered". (A ppellate  Body Reports, 
EC – Seal Products , para.  5.299 (italics original; bold omitted))  
336 Emphasis added.  
337 We note that, differently from technical regulations or standards, which may pursue various 
legitimate objectives, the function  of conformity asses sment procedures is to ensure that the underlying 
technical regulations or standards are complied with. That the function of conformity assessment procedures is 
limited to ensuring compliance is also confirmed by Article  5.1.2 of the TBT  Agreement, which r equires that 
conformity assessment procedures not be more strict or applied more strictly than is necessary "to give the 
importing Member adequate confidence that products conform with the applicable technical regulations or 
standards".  
338 Emphasis added.  
339 Emphasis added.  WT/DS499/AB/R  
 
- 47 - 
 
  refers to "suppliers".340 The text of Article  5.1.1 therefore makes clear that comp arability of the 
situations has to be assessed by reference to the "suppliers", and thus takes account of the fact that 
conditions of access to conformity assessment may vary within a country.  
5.127.   We note Russia's view that the negotiating history of Article  5.1.1 of the TBT  Agreement 
suggests that it is the situations in particular countries  that should be compared and not the 
suppliers .341 Specifically, Russia points out that the initial drafts of Article  5.1.1 did not contain the 
qualifying phrase "in a compa rable situation", which was introduced later in the negotiations and 
specifically after the words "in any other country".342 This, according to Russia, "reveals the intention 
of the drafter [s] to qualify and narrow down the scope of application of the no les s favourable 
treatment provisions" of Article  5.1.1343, and implies that "it is the situations in particular countries 
that should be compared and not the suppliers."344 We agree with Russia that the phrase "in a 
comparable situation" in Article  5.1.1 qualifie s the scope of the obligations in that provision to accord 
no less favourable conditions of access to conformity assessment. However, the introduction of this 
phrase as a qualification of the obligations under Article  5.1.1 does not suggest an analysis of 
comparability on a country -wide or supplier -specific basis. As observed above, we understand the 
phrase "in a comparable situation", inserted after the comma in the first clause of Article  5.1.1, to 
limit the scope of the non -discrimination obligations by requiring an assessment of factors relating 
to the suppliers  of like products, for purposes of determining whether access has been granted under 
conditions no less favourable. Therefore, while factors relating to an entire country may be relevant 
in determ ining the existence of a "comparable situation", the text of Article  5.1.1 makes clear that 
such country -wide factors have to affect the specific suppliers at issue. In our view, had the intention 
of the drafters been to mandate an assessment of a "compara ble situation" by reference only to the 
situation in a country, to the exclusion of the situation of suppliers, they would not have inserted 
the comma in the text of the first clause of Article  5.1.1. Therefore, while the "comparable situation" 
analysis ma y rely on country -wide factors, such factors would ultimately have to apply to the 
suppliers at issue, in order to be relevant to the question whether "access for suppliers  of like 
products"345 has been granted under conditions less favourable.  
5.128.   In light of the above, the assessment of whether access is granted under conditions no less 
favourable "in a comparable situation" within the meaning of Article  5.1.1 of the TBT  Agreement 
should focus on factors with a bearing on the conditions for granting access to conformity assessment 
in that specific case and the ability of the regulating Member to ensure compliance with the 
requirements in the underlying technical regulation or standard. In a particular case, such an 
assessment may involve the analysis of various  factors, including the rules of the conformity 
assessment procedure; whether its preparation, adoption, or application is challenged; the nature 
of the products at issue; and the situation in a particular country or supplier. Nevertheless, the 
relevant fa ctors for determining the existence of a "comparable situation" should ultimately relate 
to the Member's ability to make a positive assurance of conformity with respect to the specific 
suppliers of like products at issue, such that if no comparable situati on existed for these suppliers, 
the obligation to grant non -discriminatory access to conformity assessment would not apply to them. 
In all instances, this analysis has to be made on a case -by-case basis in light of the measure at issue 
and the particular c ircumstances of the case.  
5.129.   We now turn to review the Panel's analysis under Article  5.1.1 of the TBT  Agreement. With 
respect to the Panel's interpretation, Ukraine argues that the Panel failed to elaborate on what 
exactly has to be compared for purposes of  interpreting the phrase "in a comparable situation" in 
Article  5.1.1. Specifically, Ukraine considers that the Panel provided a very limited interpretation of 
the phrase and did not clarify whether an assessment of the situation of a country as a whole or  that 
of the relevant suppliers is required.346  
 
340 We further note that, while Article  5.1.1 of the TBT  Agreement imposes affirmative obligations on 
Members with respect to conformity assessment procedures, Article  XX of the GATT  1994 establishes 
exceptions to obligations under the GATT  1994.  
341 Russia's appellee's submission, para.  213 (referring to Ukraine's appellant's submission, paras.  240 
and 242).  
342 Russia's appellee's submission, paras.  158-159. (fn  omitted)  
343 Russia's appellee's submission, para.  159. 
344 Russia's appellee's submis sion, para.  160. 
345 Emphasis added.  
346 Ukraine's appellant's submission, paras.  236 and 257. See also Ukraine's opening statement at the 
oral hearing, para.  4. WT/DS499/AB/R  
 
- 48 - 
 
  5.130.   The Panel began its analysis by noting that Article  5.1.1 of the TBT  Agreement establishes 
obligations to provide national treatment and most -favoured nation treatment with regard to access 
for suppliers from other Members to covered conformity assessment procedures of importing 
Members.347 Regarding the "like products" analysis, the Panel observed that the text of Article  5.1.1 
defines the product scope of the non -discrimination obligations and considered that t he same criteria 
that are applied for determining whether products are "like" in the context of Article  2.1 of the 
TBT Agreement are applicable in the context of Article  5.1.1.348 With regard to whether the importing 
Member grants access for suppliers under conditions less favourable, the Panel noted that differential 
access conditions would be relevant under Article  5.1.1 if they modified the conditions of 
competition, or competitive opportunities, among relevant suppliers of like products to the detriment 
of suppliers of the complaining Member.349 The Panel recalled that Ukraine challenged only the 
application of a conformity assessment procedure to particular Ukrainian suppliers, and not the 
procedure as such.350 Thus, according to the Panel, less favourable ac cess conditions would exist 
"where the importing Member denies or limits the right or possibility of a supplier of another Member 
to have conformity assessment activities undertaken under the rules of the applicable conformity 
assessment procedure, either in respect of the entire conformity assessment procedure or any of its 
relevant parts, but does not deny or limit the right or possibility of access of another supplier of a 
like product from the importing Member or any other country" .351  
5.131.   Finally, the Panel  noted that the phrase "in a comparable situation" qualifies the preceding 
part of the first clause of Article  5.1.1, and therefore "warrants a comparison of differential conditions 
of access with a view to determining whether the less favourable condition s of access are being 
granted despite the situation being comparable".352 With respect to the relevant factors that render 
a situation comparable or not, the Panel observed the second clause of Article  5.1.1 makes clear 
that the relevant context of the phras e is that of assessing conformity under the rules of the 
procedure and conducting conformity assessment activities. The Panel also considered the context 
of Articles  5.1.2 and 5.2.7 of and Annex  1.3 to the TBT  Agreement. Accordingly, for the Panel, 
"aspect s of a situation that have a bearing on, for instance, the ability of the importing Member to 
undertake such activities under the rules of the procedure with adequate confidence would, in 
principle, seem to be relevant." In the Panel's view, "the relevant aspects of a situation would include 
aspects specific to the suppliers who are claimed to have been granted access under less favourable 
conditions or to the location of the suppliers' facilities." The Panel concluded that, "[i]n all events, 
whether a situ ation is comparable must be assessed on a case -by-case basis and in the light of the 
relevant rules of the conformity assessment procedure and other evidence on record."353 
5.132.   We begin by noting that the Panel's understanding of "like products" and "access  … under 
conditions no less favourable" is consonant with our interpretation above. Specifically, as observed, 
even though the obligation under Article  5.1.1 attaches to the suppliers  of products as opposed to 
the product itself, the "likeness" of the products at issue is central in defining the scope of the 
non-discrimination obligations under Article  5.1.1. Accordingly, the determination of likeness under 
Article  5.1.1, similarly to that under Article  III:4 of the GATT  1994 and Article  2.1 of the 
TBT Agreement , involves a determination of the nature and extent of a competitive relationship 
between and among the products at issue. We also noted that Article  5.1.1 requires an assessment 
of whether the conditions for access  to conformity assessment granted by the regulating Member to 
suppliers of domestic or third -country products modify the conditions of competition to the detriment 
of suppliers of like imported products.354  
5.133.   The Panel's finding that the phrase "in a comparab le situation" contains a qualification of the 
obligation to grant access to conformity assessment procedures to suppliers under conditions no less 
favourable355 is also in line with our interpretation of Article  5.1.1 of the TBT  Agreement. The Panel 
correctl y recognized that, in determining whether a situation is comparable, such that no less 
favourable access conditions must be granted, "it is necessary to identify relevant factors that render 
 
347 Panel  Report, para.  7.248.  
348 Panel  Report, para.  7.254.  
349 Panel  Report, para.  7.260.  
350 Panel  Report, para.  7.261.  
351 Panel  Report, para.  7.261.  
352 Panel  Report, para.  7.282.  
353 Panel  Report, para.  7.283.  
354 See, for Article  III:4 of the GATT  1994, Appellate  Body Report, Korea – Various Measures on Beef , 
para. 137. 
355 Panel  Report, para.  7.282.  WT/DS499/AB/R  
 
- 49 - 
 
  a situation comparable or not ."356 As the Panel observed, the relev ant context for such an 
assessment is that of assessing conformity under the rules of the procedure and conducting 
conformity assessment activities.357 Above we similarly found that, even though the word "situation" 
could potentially encompass a large number  of factors on the basis of which a comparison could be 
made, the factors relevant for purposes of establishing the existence of a "comparable situation" 
would be those with a bearing on the conditions for granting access to conformity assessment in a 
particular case. The Panel further noted that relevant factors would include the ability of the 
importing Member to undertake conformity assessment activities under the rules of the procedure 
with adequate confidence. Indeed, in light of the function of confor mity assessment procedures to 
ensure that the underlying technical regulation or standard is complied with, factors that may impact 
the ability of the importing Member to make such a determination would be relevant in the inquiry 
of "a comparable situation ". We also agree with the Panel that the relevant aspects of a situation 
would include "aspects specific to the suppliers who are claimed to have been granted access under 
less favourable conditions or to the location of the suppliers' facilities".358 In our  analysis above, we 
similarly concluded that under Article  5.1.1 it is the suppliers of like products that are entitled to an 
assessment of conformity under the rules of the procedure and under conditions no less favourable.  
5.134.    Ukraine argues that "if the s ituation of suppliers in one country presents common elements 
and is not 'totally' different from the situation of suppliers in another country, they are to be regarded 
as 'comparable' under Article  5.1.1."359 In this regard, Ukraine relies on the Appellate  Body's 
statement made in the context of Article  5.5 of the SPS  Agreement.360 In our view, in stating that 
"[i]f the situations proposed to be examined are totally different from one another, they would not 
be rationally comparable"361, the Appellate  Body was n ot addressing what constitutes a 
"comparable" situation, but rather explaining when it would not be possible to begin examining 
whether two different situations are comparable. It does not follow from this statement that 
situations that are not totally dif ferent are necessarily comparable. Moreover, the term "comparable 
situation" in Article  5.1.1 of the TBT  Agreement is not the same as the term "different situations" in 
Article  5.5 of the SPS  Agreement.362  
5.135.   In light of the above, it appears that, in its inte rpretation of Article  5.1.1 of the 
TBT Agreement, the Panel outlined a number of factors that may be relevant in determining the 
existence of a "comparable situation", and in particular recognized the relevance of factors specific 
to the suppliers at issue . Furthermore, the Panel correctly concluded that whether a situation is 
comparable must be assessed on a case -by-case basis and in light of the relevant rules of the 
conformity assessment procedure and other evidence on the record.363 In our view, the Panel  thus 
adequately set out the interpretative framework of Article  5.1.1, and we do not see that, in its 
interpretation of Article  5.1.1, the Panel "completely followed the lead" of the respondent's 
arguments364 or "made [an] incomplete conclusion concerning ' in a comparable situation'".365  
5.136.   In sum, we do not consider that the Panel erred in its interpretation of the phrase "in a 
comparable situation" in Article  5.1.1 of the TBT  Agreement by failing to elaborate on what has to 
be compared in establishing the exis tence of a comparable situation.  
 
356 Panel  Report, para.  7.283. (fn  omitted)  
357 Panel  Report, para.  7.283.  
358 Panel  Report, para.  7.283.  
359 Ukraine's appellant's submission, para.  242 (quoting Panel  Report, para.  7.276).  
360 In EC – Hormones , the Appellate  Body observed that "[t]he situations exhibiting differing levels of 
protection cannot … be compared unless they are comparable, that is, unless they present some common 
element or elements sufficient to render them comparable", and that "[i ]f the situations proposed to be 
examined are totally different from one another, they would not be rationally comparable and the differences in 
levels of protection cannot be examined for arbitrariness." (Appellate  Body Report, EC – Hormones , para.  217 
(emphasis original))  
361 Appellate  Body Report, EC – Hormones , para.  217. (emphasis original)  
362 The first sentence of Article  5.5 of the SPS  Agreement provides that "[w]ith the objective of 
achieving consistency in the application of the concept of appropriate  level of sanitary or phytosanitary 
protection against risks to human life or health, or to animal and plant life or health, each Member shall avoid 
arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situation s, if such 
distinctions result in discrimination or a disguised restriction on international trade."  
363 Panel  Report, para.  7.283.  
364 Ukraine's appellant's submission, para.  255. 
365 Ukraine's appellant's submission, para.  257. WT/DS499/AB/R  
 
- 50 - 
 
  5.3.4   The Panel's application of Article  5.1.1 of the TBT  Agreement  
5.137.   Ukraine argues that in its analysis the Panel relied on general considerations regarding the 
political or internal security situation in Ukraine that had no bear ing on the situation of the relevant 
suppliers whose certificates were suspended or rejected.366 Ukraine specifically takes issue with the 
focus of the Panel assessment on the risk to life or health of Russian inspectors , rather than on 
aspects specific to t he suppliers  at issue or the location of the suppliers' facilities.367 In Ukraine's 
view, the Panel should have compared the situations of the specific suppliers whose certificates were 
suspended or applications rejected by the FBO with the situations of sup pliers of like products 
originating in Russia and other countries, as opposed to accepting the relevance of general 
considerations regarding the security situation in Ukraine that had no bearing on the situation of the 
relevant suppliers.368 Furthermore, Ukr aine takes issue with an analogy the Panel made between 
the function of conformity assessment procedures under Article  5.1.1 of the TBT  Agreement, on the 
one hand, and the legitimate objective of protecting human life and health under Article  2.2 of 
that agreement, on the other. According to Ukraine, the phrase "a comparable situation" may not 
be understood as a basis for an importing Member to act for the protection of the interests recognized 
in the sixth recital of the preamble of the TBT  Agreement unles s the protection of those interests is 
directly linked to the situation of the suppliers subject to the measures at issue.369  
5.138.   The Panel examine d the reasons provided by Russia in support of its view that the situation 
of suppliers of Ukrainian railway produ cts was not comparable to that of suppliers of Russian railway 
products and of suppliers of railway products from other countries.370 In particular, the Panel 
reviewed the arguments and evidence submitted by the parties in support of their assertions 
regardi ng the existence of uncertainty with respect to the safety and security of FBO  employees 
travelling to Ukraine to conduct inspections, namely: (i)  incidents in several places in Ukraine and 
anti-Russian sentiment; (ii)  Russian citizens visiting Ukraine bet ween 2013 and 2016; (iii)  report of 
the Office of the United Nations High Commissioner for Human Rights (OHCHR Report); (iv)  visits 
to Ukraine by inspectors from other countries between 2014 and 2017; (v)  Russia's Ministry of 
Foreign Affairs travel advice on Ukraine; (vi) declaration from FBO employees refusing to visit 
Ukraine; and (vii)  communications from Ukrainian producers to the FBO offering enhanced security 
conditions.371 Following its review of individual pieces of evidence, the Panel undertook an overall 
assessment of the evidence, and ultimately found that "in this instance related to risks to life and 
health of FBO inspectors, over the time -frame examined above, the situation in Ukraine was not 
comparable to other countries."372 
5.139.   Above, we found that the question under Article  5.1.1 of the TBT  Agreement is whether 
"access for suppliers  of like products" has been granted under conditions less favourable and that 
"access" is defined as " suppliers'  right to an assessment of conformity ".373 Since it is the suppliers 
of like products that are entitled to access to an assessment of conformity under no less favourable 
conditions and even though factors that more generally apply to an entire country may be relevant 
to the inquiry of whether a  "comparable situation" exists, such factors should ultimately pertain to 
or affect the specific suppliers of like products to which the conditions for access to conformity 
assessment granted by the importing Member relate. With these considerations in min d, we turn to 
the Panel's application of Article  5.1.1 to the facts of the present case.  
5.140.   We observe that , while in its interpretation of Article  5.1.1 the Panel clearly stated that the 
relevant aspects of a situation would include aspects specific to the s uppliers who are claimed to 
have been granted access under less favourable conditions or to the location of the suppliers' 
 
366 Ukraine's appellant's submissi on, paras.  247-248 and 255. See also Ukraine's opening statement at 
the oral hearing, para.  8. 
367 Ukraine's appellant's submission, paras.  247-248.  
368 Ukraine's opening statement at the oral hearing, para.  8. 
369 Ukraine's appellant's submission, paras.  252-254. See also Ukraine's opening statement at the oral 
hearing, para.  20. 
370 Panel  Report, para.  7.314.  
371 Panel  Report, section  7.3.2.2.4.2. The Panel further considered Russia's arguments regarding the 
existence of restrictions on Russian citizens entering U kraine (i.e. automatic prosecution in Ukraine of Russian 
citizens who visited Crimea after April  2014 and restriction on the entry to Ukraine of Russian male citizens 
aged between 16 and 60). ( Ibid., section  7.3.2.2.4.3) However, the Panel found that the e vidence before it did 
not confirm the existence of such restrictions. (Ibid., paras.  7.361 and 7.369)  
372 Panel  Report, para.  7.387.  
373 Emphasis added.  WT/DS499/AB/R  
 
- 51 - 
 
  facilities374, in its assessment of the evidence on the record the Panel made only limited references 
to relevant factors relating to t he specific suppliers at issue, such as the location of the suppliers' 
facilities. Importantly, while the Panel focused its analysis on the security situation in Ukraine in 
general, it did not assess the evidence on the record with a view to determining ho w the security 
situation related to the specific suppliers at issue. In fact, only in examining the set of press articles 
reflecting incidents in several places in Ukraine and anti -Russian sentiment did the Panel refer to the 
regions of the relevant suppli ers.375 However, even in that context, and in drawing conclusions from 
the evidence in the press articles, the Panel did not clearly distinguish between incidents in the 
regions where the relevant suppliers were located and incidents in other regions.376 The rest of the 
Panel's analysis was based on the existence of security concerns and anti -Russian sentiment in 
Ukraine in general and not in the specific regions where the relevant suppliers were located.377 Thus, 
in applying Article  5.1.1 to the facts of the cas e and in examining factors relevant for establishing 
the existence of a "comparable situation" in the particular circumstances at issue, the Panel did not 
in fact focus, as it stated in its interpretation, on "aspects specific to the suppliers who are clai med 
to have been granted access under less favourable conditions or to the location of the suppliers' 
facilities" and relied instead on information on the record concerning the general security situation 
in Ukraine.378  
5.141.   As we see it , evidence concerning an e ntire country may provide a basis for concluding that 
a conformity assessment procedure cannot be conducted in any part of the country, e.g. when its 
entire territory is affected by a natural disaster or an armed conflict that has an impact on the 
situatio n of specific suppliers. Evidence of risk for the security of governmental employees, as 
opposed to actual incidents relating to the security of those employees, may also be probative in 
this regard. However, as noted above, the language in Article  5.1.1 m akes clear that comparability 
of the situations has to be assessed by reference to the "suppliers", thus taking account of the fact 
that conditions of access to conformity assessment may vary within a country. Therefore, the 
existence of a "comparable situ ation" must be established on the basis of evidence pertaining to the 
specific suppliers of like products to which the conditions for access to conformity assessment 
granted by the importing Member relate. In the present case, we do not see that, in making  this 
assessment, the Panel sufficiently considered the situation of the specific suppliers at issue or the 
regions where the relevant suppliers were located or provided an explanation as to how the evidence 
on the record concerning the existence of securi ty concerns and anti -Russian sentiment in Ukraine 
in general related to these regions and suppliers.  
5.142.   Furthermore, in its overall assessment of the evidence, the Panel referred to the importance 
of protecting human life and health and noted that "responsiv e and responsible governments can 
and may take such vital interests of their citizens into account when determining whether their 
government officials can carry out inspections abroad."379 Notably, the Panel observed that:  
[I]n the specific circumstances of a dispute such as ours, the importing Member in 
applying Article  5.1.1  may confront the need to weigh and balance the interests of 
suppliers of products originating in the territories of other Members in an assessment 
of conformity against its interest in safeguarding the life or health of its employees  when 
undertaking conformity assessment activities, such as inspections, abroad. As noted, 
the protection of human life and health is a vital interest . However, there must be a 
rational relationship between t he need to protect the life and health of inspectors 
travelling abroad and the situation prevailing in the country where inspections are to be 
carried out. In our view, the importing Member in principle benefits from a margin of 
discretion  in carrying out such a weighing and balancing of interests, as appropriate to 
the circumstances, which include the importance of the interests at stake.380 
5.143.   We note that the Panel recognized the necessity of "a rational relationship between the need 
to protect the life and h ealth of inspectors travelling abroad and the situation prevailing in the 
country where inspections are to be carried out".381 As we understand it, the Panel therefore did not 
 
374 Panel  Report, para.  7.283.  
375 See Panel  Report, paras.  7.329 -7.331 and 7.335.  
376 Panel  Report, para. 7.336.  
377 See Panel  Report, paras.  7.337 -7.356.  
378 Panel  Report, para.  7.283.  
379 Panel  Report, para.  7.375.  
380 Panel  Report, para.  7.376. (emphasis added)  
381 Panel  Report, para.  7.376.  WT/DS499/AB/R  
 
- 52 - 
 
  rely on the protection of human life and health as a legitimate objective relevant  under Article  5.1.1 
in general, but rather considered this objective to be a relevant factor to determine the existence of 
a "comparable situation" in the circumstances of the present case, to the extent that it had a bearing 
on this situation. As noted a bove, under Article  5.1.1, the relevant factors for purposes of 
establishing the existence of a "comparable situation" are those relating to the conditions for 
granting "access" to conformity assessment for specific suppliers of like products, i.e. supplie rs' right 
to an assessment of conformity under the rules of the procedure. Furthermore, factors that impact 
the ability of Members to make a determination that relevant requirements in technical regulations 
or standards are fulfilled, thereby ensuring comp liance with these requirements, would be of 
relevance in the inquiry. In the present dispute, Ukraine challenged only the application of Russia's 
conformity assessment procedure. Under these procedures annual on -site inspections were to be 
conducted, in or der to ensure the continued compliance of imported railway products with the 
relevant Russian technical regulations. In these circumstances, the ability of Russian inspectors to 
make a determination that the requirements in the technical regulation are ful filled by way of 
conducting an on -site inspection, and thus to ensure access for suppliers of Ukrainian railway 
products to this part of Russia's conformity assessment procedure, could be affected by the security 
situation in Ukraine.  
5.144.   At the same time, we have concerns with the Panel's approach to assessing the existence of 
a "comparable situation" in the circumstances of this case. The question before the Panel was 
whether a comparable situation existed in the present dispute. The existence of a "comparabl e 
situation" may depend on a number of factors specific to the measure at issue and the circumstances 
of the case. Notably, such factors should have a bearing on the conditions for granting access  to 
conformity assessment in a particular case and should pe rtain to or affect the specific suppliers  of 
like products to which these conditions relate. It follows that the interest of safeguarding the life and 
health of governmental employees can only constitute a pertinent consideration for purposes of 
establishi ng the existence of a "comparable situation" to the extent that it also relates to the situation 
applicable to the suppliers at issue.  
5.145.   Moreover , we disagree with the Panel's conclusion that there was a need to "weigh and 
balance" the market access interests of suppliers of products originating in the territories of other 
Members against the interest of safeguarding the life and health of governme ntal employees.382 The 
Panel also took into account the restrictiveness of the measure by noting that "the FBO in this dispute 
opted for suspensions rather than the stricter withdrawals or cancellation of the relevant certificates 
of conformity."383 While such  a balancing test may be appropriate in assessing whether a measure 
is more trade -restrictive than necessary under Article  2.2 of the TBT  Agreement, this is not the 
question under Article  5.1.1. Nor do we see a basis for the Panel's statement that the impo rting 
Member benefits from a "margin of discretion" in carrying out such a weighing and balancing of 
interests of suppliers and employees.384 We do agree that a threat to the life and health of 
governmental employees in performing part of the conformity asse ssment procedure can be a 
relevant factor in comparing the situations for purposes of Article  5.1.1 in a particular case. We 
further accept that the impossibility for governmental employees to carry out a part of a conformity 
assessment procedure, such as on-site inspections abroad, due to a risk for the security of those 
employees may not require evidence of actual incidents . Nevertheless, the existence of a 
"comparable situation" should be established objectively and based on evidence pertaining to the 
suppliers at issue. Therefore, the question before the Panel was whether, in light of all evidence on 
the record, the security situation in Ukraine as it applied to the relevant suppliers of Ukrainian railway 
products affected the conditions of granting acce ss to conformity assessment to those suppliers, 
such that the situations relating to those suppliers and to suppliers in other countries could no longer 
be considered comparable.  
5.146.   By focusing in its analysis on whether the FBO acted "outside its margin of discretion by 
balancing the interests of Ukrainian suppliers and FBO employees"385, the Panel failed to consider 
how the interest of safeguarding the life and health of FBO employees related to the suppliers of 
Ukrainian railway products at issue, and thus f ailed to address the question whether the security 
situation in Ukraine, as it related to the suppliers at issue, was comparable to the security situation 
in other countries and suppliers. For instance, while the Panel recognized that "[i]t is not clear th at 
 
382 See Panel  Report, paras.  7.376 and 7.383.  
383 Panel  Report, para.  7.383. 
384 Panel  Report, paras.  7.376 and 7.383 -7.384.  
385 Panel  Report, para.  7.384.  WT/DS499/AB/R  
 
- 53 - 
 
  FBO employees were necessarily likely to go to places where protests or demonstrations were held 
or where civil unrest erupted", the Panel also considered that "the situation during the relevant 
time-period was marked by instability and unpredictability ."386 Notably, the Panel held that "[f]rom 
the FBO's vantage point , it was therefore not readily apparent  whether a given area of the country 
was sufficiently safe, or would remain so, to proceed with an inspection visit."387 Thus, in assessing 
the existence o f a "comparable situation", the Panel apparently "balanced" the evidence on the 
record concerning the objective existence of security concerns and anti -Russian sentiment generally 
in Ukraine, on the one hand, and the perception of the importing Member as t o the existence of such 
concerns and sentiment, on the other. As noted, however, such weighing and balancing has no basis 
in the language of Article  5.1.1 of the TBT  Agreement.  
5.147.   In the same vein, in stating that it seemed "reasonable that FBO employees, an d the 
FBO's  management, could reach the same conclusion" as the Russian citizens deciding not to travel 
to Ukraine388, and that the FBO's decision to consider the possible risk of sending government 
officials to Ukraine did not appear "unreasonable in the sp ecific circumstances and time -frame"389, 
the Panel examined the existence of a comparable situation not through the perspective of the 
suppliers of Ukrainian railway products concerned but through that of the Russian government. This 
is also how we understan d the Panel's ultimate conclusion that "during the relevant time -period, the 
FBO did not act outside its margin of discretion by balancing the interests of Ukrainian suppliers and 
FBO employees and then erring on the side of ensuring the safety of the latt er and determining that 
the conditions for carrying out inspection control in Ukraine were not satisfied."390 By giving 
prominence to the FBO's discretion, rather than examining whether and how the evidence on the 
record was relevant to the specific supplier s' situation, the Panel failed in applying Article  5.1.1 to 
the facts of the case, and , specifically, it failed to examine the existence of a "comparable situation" 
on the basis of objective evidence that sufficiently pertained to the specific suppliers at  issue, 
namely , the suppliers to which the conditions for access to conformity assessment granted by the 
importing Member relate. Rather, the Panel relied on general "uncertainty" about the security 
situation of Russian citizens in Ukraine to make the far -reaching conclusion that Ukraine's entire 
territory was unsafe for purposes of conducting on -site inspections regarding all suppliers at issue 
and over the entire relevant time period of April  2014 to December 2016.  
5.148.   Finally, we observe that the Panel's err or in applying the correct legal framework for 
examining the existence of a "comparable situation" is also reflected in the Panel's reliance on 
evidence that was either of a general nature and did not relate to the existence of security concerns 
and anti -Russian sentiment in the specific regions where the relevant suppliers were located (such 
as statistics concerning the number of Russian citizens visiting Ukraine between 2013 and 2016391), 
or reflected the situation in regions other than those of the supplie rs (such as Russia's Ministry of 
Foreign Affairs travel advice on Ukraine392). Moreover, some of the evidence relied on by the Panel 
(e.g. the OHCHR  Report393) explicitly referred to the armed conflict as confined to the Donbass and 
Crimea regions of Ukraine, i.e. regions different from the ones where the relevant suppliers were 
located. The Panel nevertheless considered this evidence to be relevant for its analysis of comparable 
situation, without explaining how it related to the regions where the suppliers at  issue were located. 
Rather, the Panel specifically observed that officials from Belarus, the European  Union, India, 
Kazakhstan, and Pakistan travelled to Ukraine "despite the above -noted evidence of unrest, rallies 
and protests in various parts of Ukraine , and despite the armed conflict in eastern Ukraine".394 The 
Panel thus recognized that the security situation in Ukraine posed danger for the life and health of 
only Russian governmental employees, to the extent that evidence on the record demonstrated the 
existence of anti -Russian sentiment. In these circumstances, it was of particular importance for the 
Panel to analyse the comparability of situations with respect to the specific suppliers of Ukrainian 
railway products at issue, in order to be in a positio n to answer the question whether the security 
situation in certain regions of Ukraine, coupled with the existence of anti -Russian sentiment in those 
same regions and over the period between 2014 and 2016, resulted in the absence of a "comparable 
 
386 Panel  Report, para.  7.380.  
387 Panel  Report, para.  7.380. (emphasis added)  
388 Panel  Report, para.  7.381.  
389 Panel  Report, para.  7.382.  
390 Panel  Report, para.  7.384.  
391 Panel  Report, paras.  7.337 -7.339.  
392 Panel  Report, paras.  7.346 -7.350.  
393 Panel  Report, paras.  7.340 -7.342.  
394 Panel  Report, para.  7.345.  WT/DS499/AB/R  
 
- 54 - 
 
  situation"  with respect to suppliers located in those regions and for purposes of conducting on -site 
inspections by Russian FBO employees over the relevant period.395  
5.149.   In light of the above, the Panel erred in its application of Article  5.1.1 of the TBT  Agreement 
to the facts of the present case in finding that, between April 2014 and December 2016, Ukrainian 
suppliers of railway products were denied no less favourable access in a situation that was not 
comparable to the situation in which Russia granted access to supp liers of Russian railway products 
and suppliers of railway products from other countries.  
5.3.5   Completion of the legal analysis  
5.150.   The Appellate  Body has complete d the legal analysis with a view to facilitating the prompt 
settlement and effective resolution of dis putes where the factual findings by the panel396 and/or 
undisputed facts on the panel record397 provide d a sufficient factual foundation for doing so.398  
5.151.   In the present case, Ukraine has not requested us to complete the legal analysis. 
Furthermore, as noted abo ve, the focus of the Panel's assessment was on evidence concerning the 
existence of security concerns and anti -Russian sentiment in Ukraine in general, rather than on how 
this evidence related to the regions where the relevant suppliers were located. There fore, the Panel 
did not conduct an assessment as to how the evidence on the record, taken individually or together, 
relates to the security situation in Ukraine as it applied to relevant suppliers of Ukrainian railway 
products. Consequently, there are no specific factual findings relating to these suppliers, which would 
be required for a completion of the legal analysis  and thus  we cannot rely on the factual findings 
made by the Panel, in order to complete the legal analysis. Specifically, we are not in a position to 
assess whether the security situation in Ukraine affected the conditions of granting access to 
conformity assessment for the specific suppliers at issue over the relevant period, such that it was 
no longer comparable to the situation applicable  to other countries and suppliers of like products. 
Additionally, it appears that the relevance and weight to be given to certain pieces of evidence is 
contested between the participants. In these circumstances, we do not consider that we have before 
us su fficient factual findings by the Panel or undisputed facts on the Panel record on which we can 
rely in completing the legal analysis.  
5.3.6   Whether the Panel failed to make an objective assessment of the matter under 
Article  11 of the DSU  
5.152.   Having found that the Panel erred in its application of Article  5.1.1 of the TBT  Agreement to 
the facts of the present case in finding that the situation in Ukraine was not comparable to other 
countries, there is no need to further examine Ukraine's claim that the Panel failed to make an 
objective assessment of the matter under Article  11 of the DSU with respect to the same finding.  
5.3.7   Conclusion  
5.153.   Under Article  5.1.1 of the TBT  Agreement, the assessment of whether access is granted 
under conditions no less fa vourable "in a comparable situation" should focus on factors having a 
 
395 We note that at the oral hearing Ukraine raised concerns with respect to the relevant time period the 
Panel chose for i ts assessment of evidence on the record. In Ukraine's view, since the dates of the 
14 instructions suspending certificates were between April  2014 and August  2015, the Panel should not have 
extended this period until the date of the Panel's establishment o n 16 December  2016. The Panel explained its 
decision with the fact that there was no evidence before it that up until the date of the Panel's establishment 
the FBO issued instructions determining that the conditions for suspending certificates were no long er present. 
(Panel  Report, para.  7.377) In our view , independently of the precise time period, the Panel had to establish 
whether the situation concerning the relevant producers of Ukrainian railway products was or was not 
comparable to the situation conce rning producers of other countries both: (i) at the time the suspensions were 
made; and (ii)  in the period following the suspensions.  
396 Appellate  Body Reports, Canada – Periodicals , p. 24, DSR 1997:I, p.  469; Australia – Salmon , 
paras.  117-119; US – Large Civil Aircraft (2nd complaint) , para.  1250.  
397 Appellate  Body Reports, US – Lamb , paras.  150 and 172; US – Section 211 Appropriations Act , 
paras.  343-345; EC and certain member States – Large Civil Aircraft , para.  1178; US – Large Civil Aircraft 
(2nd complaint) , paras.  1250-1251.  
398 Appellate  Body Reports, Colombia – Textiles , para.  5.30; US – Anti-Dumping Methodologies (China) , 
para. 5.146; Russia – Pigs (EU) , para.  5.141; EC and certain member States – Large Civil Aircraft 
(Article 21.5 – US), para.  5.745.  WT/DS499/AB/R  
 
- 55 - 
 
  bearing on the conditions for granting access to conformity assessment to suppliers of like products 
and the ability of the regulating Member to ensure compliance with the requirements i n the 
underlying technical regulation or standard. Thus, factors relevant to the inquiry of whether a 
"comparable situation" exists have to affect the specific suppliers to which the conditions for access 
to conformity assessment granted by the importing M ember relate.  
5.154.   We consider that the Panel did not err in its interpretation of the phrase "in a comparable 
situation" in Article  5.1.1 of the TBT  Agreement. However, in examining factors relevant for 
establishing the existence of a "comparable situation" in  the particular circumstances of this case, 
the Panel relied too much on information concerning the security situation in Ukraine generally, and 
did not focus sufficiently on aspects specific to the suppliers who are claimed to have been granted 
access und er less favourable conditions or to the location of the suppliers' facilities. We therefore 
find that the Panel erred in its application of Article  5.1.1 of the TBT  Agreement to the facts of the 
present case in finding that, between April 2014 and December  2016, Ukrainian suppliers of railway 
products were denied no less favourable access in a situation that was not comparable to the 
situation in which Russia granted access to suppliers of Russian railway products and suppliers of 
railway products from othe r countries. For the same reasons, we find that the Panel erred in its 
application of Article  5.1.1 of the TBT  Agreement to the facts of the present case in finding that less 
favourable access conditions were granted to Ukrainian suppliers of railway produ cts in a situation 
that was not comparable also in the context of  the two decisions through which the FBO rejected 
applications submitted by Ukrainian suppliers under CU  Technical Regulation  001/2011 
(i.e. decisions 1 and 2).  
5.155.   Consequently, we reverse  the Panel's finding, in paragraphs  7.394 and 8.1.b.i of the Panel 
Report, that Ukraine failed to establish, with respect to each of the 14 challenged instructions 
suspending certificates, that Russia acted inconsistently with its obligations under Article  5.1.1 of 
the TBT  Agreement.  
5.156.   We also reverse  the Panel's finding, in paragraphs  7.638 and 8.1.c.i of the Panel Report, 
that Ukraine failed to establish, with respect to the two decisions through which the FBO "returned 
without consideration" applications for ce rtificates submitted by Ukrainian producers under 
CU Technical Regulation 001/2011, i.e. decisions 1 and 2, that Russia acted inconsistently with its 
obligations under Article  5.1.1 of the TBT  Agreement.  
5.4  Ukraine's claim under Article  5.1.2 of the TBT  Agree ment  
5.157.   We now turn to Ukraine's claim that the Panel erred in making an objective assessment of 
the matter before it pursuant to Article  11 of the DSU in finding that Ukraine had failed to establish 
that the proposed less trade -restrictive alternatives were  reasonably available, and that Russia acted 
inconsistently with its obligations under Article  5.1.2 of the TBT  Agreement . Ukraine requests us to 
reverse the conclusions in paragraphs  8.1.b.ii and 8.1.c.iii of the Panel  Report and find that the Panel 
failed to make an objective assessment of the matter before it under Article  11 of the DSU in finding 
that Ukraine had failed to establish, with respect to each of the 14  instructions, that Russia had 
acted inconsistently with its obligations under Article  5.1.2 of the TBT  Agreement .399 In Ukraine's 
view, the Panel's assessment of the facts in this respect "lack[s] objectivity, adequate reasoning and 
explanations, and [is] not impartial", and the Panel accepted Russia's "unsubstantiated 
assertions".400  
5.4.1   The Panel's findings  
5.158.   The Panel began by setting out its interpretation of Article  5.1.2 of the TBT  Agreement. The 
Panel observed that Article  5.1.2 stipulates, in its first sentence, a general obligation not to prepare, 
adopt, or apply conformity assessment procedures  with a view to or with the effect of creating 
unnecessary obstacles to international trade. In turn, an example of a situation where an 
inconsistency with that general obligation would arise is set out in the second sentence of 
Article  5.1.2.401 With respec t to the first sentence, the Panel concluded that the reference in 
Article  5.1.2 to "unnecessary obstacles to international trade" refers to the notion of "necessity"402 
 
399 Ukraine's appellant's submission, paras.  177 and 226.  
400 Ukraine's appellant's submission, para.  190. 
401 Panel  Report, para.  7.402.  
402 Panel  Report, para.  7.412.  WT/DS499/AB/R  
 
- 56 - 
 
  and in that respect bears certain similarity with Article  2.2 of the TBT  Agreement. At t he same time, 
Article  5.1.2 and Article  2.2 of the TBT  Agreement differ with respect to the relationship between 
the first and the second sentences of these two provisions. Specifically, in the Panel's view, unlike 
Article  2.2, the second  sentence of Artic le 5.1.2 does not qualify the terms of the first sentence. The 
Panel thus concluded that a finding of inconsistency with the first sentence of Article  5.1.2 may rest 
entirely on findings made with respect to the second sentence of Article  5.1.2.403 
5.159.   With resp ect to the second sentence of Article  5.1.2, the Panel examined the similarities and 
differences between that provision and the second sentence of Article  2.2 of the TBT  Agreement. 
The Panel considered that both provisions concern the notion of "necessity" , and thus found it useful 
to consider the Appellate  Body's findings relating to the second sentence of Article  2.2.404 The Panel 
further noted that, while the second sentence of Article  2.2 uses the phrase "necessary to fulfil a 
legitimate objective", the second sentence of Article  5.1.2 uses the phrase "necessary to give the 
importing Member adequate confidence that the products conform with the applicable technical 
regulations or standards". In the Panel's view, this textual difference indicates that the second 
sentence of Article  5.1.2 is limited to the objective of giving the importing Member adequate 
confidence of con formity.405  
5.160.   Furthermore, the Panel noted that the second sentence of Article  2.2 refers to the concept 
of "trade restrictiveness", while Article  5.1.2 refers to the concepts of strictness  or strict 
application .406 As the Panel saw it, a conformity assessment procedure that is more trade -restrictive 
(or is applied in a more trade -restrictive manner) than necessary, would constitute a conformity 
assessment procedure that is more strict (or applied more strictly) than necessary. However, the 
Panel reasoned, there  may be other ways (not involving the restriction of trade per se) in which a 
conformity assessment procedure could be more strict, or could be applied more strictly, than 
necessary and could thus fail to comply with the second sentence of Article  5.1.2.407 
5.161.   The Panel explained that, based on these considerations, it would undertake a holistic 
weighing and balancing of the following factors to determine whether Russia applies its conformity 
assessment procedure consistently with the second sentence of Article  5.1.2: (i)  the contribution of 
Russia's application of its conformity assessment procedure to the objective of giving Russia 
adequate confidence that Ukrainian railway products conform with the relevant technical regulations; 
(ii) the strictness of the man ner in which Russia applies its conformity assessment procedure; and 
(iii) the "nature and gravity" of the risks that non -conformity would create. The Panel stated that, 
moreover, it would compare the manner of applying the procedure chosen by Russia again st the 
alternative manners of applying Russia's conformity assessment procedure suggested by Ukraine, 
except if the manner of applying the procedure chosen by Russia does not contribute to giving Russia 
adequate confidence of conformity.408  
5.162.   With respect to the burden of proof, the Panel considered how the Appellate  Body and a 
previous panel had allocated the burden of proof under Article  2.2.409 Specifically, in the Panel's 
view, identification of a less strict manner of application alone is not a sufficient b asis for a panel to 
find that the importing Member's manner of applying its conformity assessment procedure is more 
strict than necessary to give that Member adequate confidence of conformity.410 The Panel therefore 
considered that a complaining party raisin g an alternative manner of applying a conformity 
assessment procedure needs to make a prima  facie case that such an alternative manner of 
application: (i)  is less strict; (ii)  makes an equivalent contribution to the objective of providing the 
importing Mem ber adequate confidence of conformity; and (iii)  is reasonably available to the 
importing Member.411 
5.163.   The Panel considered that the suspension of certificates, as Russia's chosen manner of 
applying its conformity assessment procedure, contributes substantiall y to the objective of giving 
Russia adequate confidence of continued conformity of the Ukrainian railway products covered by 
 
403 Panel  Report, para.  7.413.  
404 Panel  Report, para.  7.418.  
405 Panel  Report, para.  7.420.  
406 Panel  Report, para.  7.422.  
407 Panel  Report, para.  7.422.  
408 Panel  Report, para.  7.423.  
409 Panel  Report, para.  7.428.  
410 Panel  Report, para.  7.432.  
411 Panel  Report, para.  7.433.  WT/DS499/AB/R  
 
- 57 - 
 
  the 14  suspended certificates.412 Furthermore, the Panel found the suspension of certificates 
substantially restricts trade, and can be considered as a strict manner of application, albeit 
withdrawal of certificates would be an even stricter manner.413 Finally, in the Panel's view, 
non-conforming railway products may lead to accidents such as train derailments, which , in turn, 
may cause g reat harm to human, animal, and plant life or health. The Panel considered that, in view 
of the products concerned (certain railway rolling stock, railroad switches, other railroad equipment, 
and parts thereof covered by the suspended certificates), the co nsequences of a failure of any such 
products, due to non -conformity with the underlying technical regulations, could reasonably be 
expected to create substantial risks to human, animal, and plant life or health, as well as to the 
environment.414  
5.164.   With respec t to the first alternative identified by Ukraine, for Russian authorities to 
communicate with Ukrainian producers, the Panel considered that the alternative had an uncertain 
outcome and could theoretically lead to a situation that would allow the conformit y assessment 
procedure to continue, just as it could lead to a situation where it would not continue and certificates 
would be suspended.415 Furthermore, the Panel noted that the Ukrainian producers' letters to the 
FBO, offering private security arrangements  with a view to allowing inspections to proceed , did not 
remove the FBO's concerns about sending inspectors to conduct inspections in Ukraine and the 
certificates remained suspended.416 Finally, the Panel observed that Ukraine did not elaborate on 
why it was  not reasonable for the FBO to consider that the arrangements for conducting inspection 
control in Ukraine that had been proposed by Ukrainian producers were not satisfactory or sufficient, 
and whether, under Russia's domestic law, the FBO could delay susp ending certificates of products 
whose continued conformity could not be verified.417 Accordingly, the Panel found that Ukraine had 
not established that communicating with the relevant five Ukrainian producers is a less strict manner 
of applying Russia's conf ormity assessment procedure that would have been reasonably available to 
Russia.418 
5.165.   With respect to the second alternative identified by Ukraine, entrusting inspections in 
Ukraine to the competent authorities of Kazakhstan or Belarus, the Panel noted that it  was not 
self-evident that the FBO has the power to entrust foreign government authorities to carry out tasks 
entrusted to it. Moreover, the Panel observed that Ukraine had not provided any evidence of prior 
instances of the FBO entrusting certification bo dies in other countries with the conduct of inspections 
abroad, and thus considered that Ukraine had not met its burden to establish that this alternative is 
available to Russia.419 Accordingly, the Panel found that Ukraine had failed to establish that 
entru sting the competent authorities of Belarus and Kazakhstan with the conduct of inspections in 
Ukraine is a less strict manner of applying Russia's conformity assessment procedure that would 
have been reasonably available to Russia.420 
5.166.   With respect to the thir d alternative identified by Ukraine, accrediting non -Russian experts 
or organizations to conduct inspections in Ukraine, the Panel understood that Ukraine referred to 
the possibility of appointing experts, provided for in Article  10 of Certification System  for Federal 
Railway Transport ( CS FRT 01-96).421 However, for the Panel, it was not clear that this provision 
provides for the possibility of accrediting non -Russian experts to conduct on -site inspections. While 
Article  10 did not specify the nationality th at accredited experts must have, Ukraine had not provided 
any evidence to indicate that non -Russian experts had been accredited. The Panel further noted that 
the system in place is one where experts seek accreditation and does not contemplate that the 
 
412 Panel  Report, para.  7.450.  
413 Panel  Report, paras.  7.453 -7.454. 
414 Panel  Report, para.  7.457.  
415 Panel  Report, para.  7.468. In this regard, the Panel referred to the Appellate  Body Report in  
US – Gambling , in which the Appellate  Body reversed the panel's finding that, before imposing a 
WTO-inconsistent measure, the responding party could have entered into consultations with the complaining 
party to find alternatives. The Appellate  Body noted that negotiations are by definition a process, the results of 
which are uncertain. (Ibid., para.  7.467 (referring to Appellate  Body Report, US – Gambling , paras.  315-317 
and 321))  
416 Panel  Report, para.  7.468 (referring to Letter [BCI]  from PJSC [BCI]  to FBO (Panel Exhibit UKR -18 
(BCI))).  
417 Panel  Report, para.  7.469.  
418 Panel  Report, para.  7.470.  
419 Panel  Report, para.  7.474.  
420 Panel  Report, para.  7.476.  
421 Panel  Report, paras.  7.477 and 7.480.  WT/DS499/AB/R  
 
- 58 - 
 
  Ministry approaches experts and issues them accreditation certificates and licences.422 There was 
also no evidence on the record to indicate that, at the time that the 14  instructions suspending 
certificates were issued, there were non -Russian experts qualified to conduct inspection control in 
Ukraine with valid Russian accreditation certificates. Finally, the Panel observed that there was also 
no evidence of prior instances of the FBO using accredited experts to conduct inspections abroad.423 
Accordingly, the Pane l found that Ukraine had failed to establish that accrediting non -Russian experts 
or organizations is a less strict manner of applying Russia's conformity assessment procedure that 
would have been reasonably available to Russia.424 
5.167.   With respect to the fourth alternative identified by Ukraine, conducting off -site inspections, 
the Panel observed that the main point of contention between the parties was whether, under 
Article  7.4.1 of the Organization Standard СTO PC-FZT 08-2013 " Procedure of organization and 
implementation of inspection control of certified products " (PC-FZT 08-2013)  (Panel Exhibit 
RUS-23), which stipulates conditions for the conduct of off -site inspection, the FBO was precluded 
from conducting off -site inspections for the railway products  affected by the 14  suspensions.425 The 
parties referred to only two of the conditions in Article  7.4.1, namely , that there be: (i)  absence of 
facts of non -conformity during the previous inspection control; and (ii)  absence of consumer 
complaints as to the q uality of certified products.426 With respect to the first of those two conditions, 
the Panel understood it to mean that an off -site inspection is excluded only for products with respect 
to which a non -conformity  concerning these products or their related pr oduction processes had been 
identified in the most recent inspection control  covering these products.427 
5.168.   Turning to the availability of off -site inspections with respect to railway products covered by 
the 14  suspended certificates, the Panel considered that,  in the circumstances of the case, it was for 
Ukraine to submit evidence of absence of non -conformities and consumer complaints. In the Panel's 
view, Article  7.4.1 was contained in a legal instrument either available publicly or upon request, the 
producers  received an "inspection act" that indicates the results of the inspection, and the FBO would 
provide information about consumer complaints to the affected producers. Alternatively, the Panel 
noted that Ukraine could demonstrate that it undertook reasonabl e efforts to obtain information 
from Russia regarding any non -conformities during the previous inspection control or any consumer 
complaints, with an explanation as to why the information could not be obtained. However, Ukraine 
had not done so for most of the railway products covered by the suspended certificates.428 The Panel 
then examined the relevant certificates of each Ukrainian producer that the FBO suspended through 
each of the instructions at issue.429 In sum, the Panel concluded that Ukraine had not es tablished, 
with respect to any of the suspended certificates covered by the challenged 14  instructions, that 
off-site inspection was available under Article  7.4.1.430 
5.169.   Based on the above, the Panel found that Ukraine had failed to establish, with respect to 
each of the 14  instructions at issue, that Russia had acted inconsistently with its obligations under 
Article  5.1.2 of the TBT  Agreement.431 
5.4.2   Claims and arguments on appeal  
5.170.   On appeal, Ukraine requests us to reverse the conclusions in paragraphs  8.1.b.ii and 8. 1.c.iii 
of the Panel  Report that Ukraine had failed to establish, with respect to each of the 14  instructions, 
that Russia had acted inconsistently with its obligations under Article  5.1.2 of the TBT  Agreement .432 
 
422 Panel  Report, para.  7.480.  
423 Panel  Report, para.  7.480.  
424 Panel  Report, para.  7.482.  
425 Panel  Report, para.  7.496.  
426 Panel  Report , paras.  7.499 and 7.501.  
427 Panel  Report, para.  7.513. The other possibilities considered by the Panel were to read the condition 
at issue as: (i) covering non -conformities identified in the immediately prior inspection control concerning any 
railway produ ct of the producer, including railway products not covered by the upcoming inspection control; 
(ii) applying to a non -conformity identified in the most recent inspection control for any of the railway products 
covered by the upcoming inspection control (wh ich may not be the most recent inspection control of the 
relevant producer); and (iii)  applying also to non -conformities relating to the production process rather than to 
the specific products produced. (Ibid., paras.  7.509 -7.512)  
428 Panel  Report, para.  7.519. 
429 Panel  Report, paras.  7.520 -7.534.  
430 Panel  Report, para.  7.535.  
431 Panel  Report, para.  7.544.  
432 Ukraine's appellant's submission, paras.  177 and 226.  WT/DS499/AB/R  
 
- 59 - 
 
  In Ukraine's view, the Panel's assessment of  facts in this respect "lack[s] objectivity, adequate 
reasoning and explanations , and [is] not impartial", and the Panel accepted Russia's 
"unsubstantiated assertions".433  
5.171.   In particular, regarding the first alternative of "additional communications with the  relevant 
Ukrainian producers", Ukraine recalls that the burden of proof rests on the party, whether 
complaining or defending, that asserts the affirmative of a particular claim or defence. In this 
respect, Ukraine takes issue with the Panel's allocation o f burden of proof and asserts that the Panel 
ignored the fact that the respondent bears the burden to rebut the complainant's case as to the 
reasonable availability of a particular alternative.434 In Ukraine's view, the Panel "made the case" for 
Russia435 and failed to comply with its duty under Article  11 of the DSU by "making findings despite 
the absence of adequate rebuttal of the respondent".436 In addition, according to Ukraine, the Panel 
allocated a very high burden of proof to Ukraine and expected Ukraine to prove the negative, e.g.  by 
finding that Ukraine failed to elaborate on why it was not reasonable for the FBO to consider that 
the arrangements for conducting inspection control in Ukraine, which had been proposed by 
Ukrainian producers, were not satisf actory or sufficient.437 
5.172.   With respect to the second alternative of "entrusting inspections in Ukraine to the competent 
authorities of Kazakhstan or Belarus", Ukraine asserts that the possibility of this alternative does not 
seem to be excluded, given the unified legal system, in particular the legal framework for technical 
regulations and conformity assessment procedures, that Belarus, Kazakhstan, and Russia have 
under the Treaty on the Establishment of the Common Customs Territory and the Formation of a 
Customs  Union.438 Furthermore, Ukraine submits that, in finding that Ukraine has failed to provide 
evidence of prior instances of the FBO entrusting certification bodies in other countries with 
inspections abroad, the Panel placed on Ukraine an excessive burd en of proof.439 In Ukraine's view, 
the Panel erred in making findings despite the lack of a rebuttal by Russia with respect to the second 
alternative measure proposed by Ukraine.440  
5.173.   With respect to the third alternative of "accrediting non -Russian experts or organizations to 
conduct inspections in Ukraine", Ukraine recalls the Panel's finding that it is not clear whether 
Article  10 of CS  FRT 01 -96 provides for the possibility of accrediting non -Russian experts to conduct 
on-site inspections. Ukraine contends t hat because Article  10 does not specify that accredited 
experts must have a certain nationality, the Panel erred in requiring Ukraine to provide evidence 
that non -Russian experts have been accredited  in the past .441 In addition, Ukraine alleges that the 
Panel erred in discharging Russia from its burden of proof by concluding that there was no evidence 
to indicate that there were non -Russian experts qualified to conduct such inspections.442  
5.174.   With respect to the fourth alternative of "conducting off -site inspecti ons", Ukraine alleges 
that the Panel erred in finding that it was for Ukraine to submit evidence that the two conditions for 
off-site inspections under Article  7.4.1 of PC -FZT 08 -2013 were met, namely , evidence of the 
absence of non -conformities and of con sumer complaints concerning the railway products covered 
by the suspended certificates.443 In addition, Ukraine points out that the Panel's understanding that 
"PC-FZT 08-2013 was available, whether publicly or upon request ", contradicted its previous finding  
that the legal instrument was "not published officially".444 Ukraine also refers to the lack of 
explanation by Russian authorities to Ukrainian producers as to the reasons for refusing off -site 
inspections.445  
 
433 Ukraine's appellant's submission, para.  190. 
434 Ukraine's appellant's submission, para.  195. 
435 Ukrain e's appellant's submission, para.  195. 
436 Ukraine's appellant's submission, para.  198. 
437 Ukraine's appellant's submission, para.  199 (referring to Panel  Report, para.  7.469).  
438 Ukraine's appellant's submission, paras.  203-204 and 206.  
439 Ukraine's appellant' s submission, para.  209. 
440 Ukraine's appellant's submission, para.  210. 
441 Ukraine's appellant's submission, paras.  212 and 216.  
442 Ukraine's appellant's submission, para.  215 (referring to Panel  Report, para.  7.480).  
443 Ukraine's appellant's submission, para s. 221 and 224.  
444 Ukraine's appellant's submission, para.  220 (referring to Panel  Report, paras.  7.494 and  7.519).  
445 Ukraine's appellant's submission, para.  222. WT/DS499/AB/R  
 
- 60 - 
 
  5.175.   For its part, Russia requests us to uphold the P anel's findings in paragraphs  8.1.b.ii 
and 8.1.c.iii of the Panel  Report.446 As a preliminary point, Russia submits that Ukraine did not 
meaningfully address the Panel's findings set out in paragraph  8.1.c.iii of its Report, insofar as 
Ukraine simply alleged  that its assertions with respect to rejections of certificates are similar to those 
it raises concerning suspension of certificates.447 In Russia's view, a mere assertion is insufficient to 
establish a violation of Article  11 of the DSU.  
5.176.   With respect to th e first alternative of "additional communications with the relevant 
Ukrainian producers", Russia argues that the Panel correctly rejected the alternative proposed by 
Ukraine.448 In Russia's view, Ukraine attempts to substitute the obligation of the complaina nt to 
"establish the prima  facie case" with the obligation of a party to "prove the fact it relies on" and shift 
its burden of proof to Russia.449 Russia submits that under Article  5.1.2, the obligation to determine 
the reasonable availability of a less trad e-restrictive measure is part of establishing the prima  facie 
case and does not qualify as an exception. Therefore, in order to establish a prima facie  case, Ukraine 
bears the burden to prove all elements of Article  5.1.2. Russia further asserts that Ukrai ne 
acknowledged its burden of proof as a complainant but did not provide sufficient arguments 
regarding the reasonable availability of the alternative, thus failing to establish a prima  facie case.450 
Alternatively, Russia asserts that if the Appellate  Body were to find that Ukraine had in fact 
established a prima  facie case, Russia had succeeded in rebutting that prima facie  case before the 
Panel.451 
5.177.   With respect to the second alternative of "entrusting inspections in Ukraine to the competent 
authorities of Ka zakhstan or Belarus", Russia submits that Ukraine's argument that the Panel ignored 
the lack of rebuttal from Russia is without merit.452 Russia points out that Ukraine did not provide 
any reference to CU  documents, other legal instruments, or facts showing availability of such an 
alternative in the course of the Panel proceedings. Russia therefore considers this suggested 
alternative to be a mere theoretical assumption. Russia points out that the theoretical "possibility" 
to entrust foreign government author ities to carry out inspections and a "reasonably available 
alternative" under Article  5.1.2 are two completely different concepts.453 According to Russia, 
Ukraine tries to combine two factually different scenarios, namely , Russia's trust in the results of 
assessments conducted by other CU  member officials and the possibility for Russia to require such 
member officials to conduct assessment s on its behalf.  
5.178.   With respect to the third alternative of "accrediting non -Russian exp erts or organizations to 
conduct inspections in Ukraine", Russia submits that the Panel objectively assessed Ukraine's 
argument, and correctly examined the scope and meaning of Article  10 of CS FRT  01-96.454 Russia 
reiterates that Ukraine bears the burden to  demonstrate the availability of the alternative but failed 
to provide evidence in support of its position. In addition, Russia submits that the Panel's conclusion 
with respect to this alternative measure rests on three separate factual findings, and thus the Panel's 
conclusion would stand even if the principle asserted by Ukraine were found to apply.455 
5.179.   With respect to the fourth alternative of "conducting off -site inspections", Russia submits 
that, contrary to Ukraine's assertion, the evidence provided by R ussia during the Panel proceedings 
is relevant.456 With respect to the publishing of PC-FZT 08-2013, Russia highlights the Panel's 
conclusion that "access and even publication by third parties is possible and that the standard is not 
a confidential internal document", and recalls that Ukraine did not object to the public availability of 
the document during the Panel's proceedings.457 In response to Ukraine's argument that Russian 
authorities did not explain to Ukrainian producers the reasons for refusing to con duct off -site 
 
446 Russia's appellee's submission, para.  86. 
447 Russia's appellee's submission, para.  89. 
448 Russia's appellee's submission, para.  105. 
449 Russia's appellee's submission, para.  92. 
450 Russia's appellee's submission, paras.  97-98 (referring to Panel  Report, paras.  7.468 -7.469).  
451 Russia's appellee's submis sion, para.  103 (referring to Panel  Report, para.  7.464).  
452 Russia's appellee's submission, para.  115. 
453 Russia's appellee's submission, para.  113. 
454 Russia's appellee's submission, para.  119. 
455 Russia's appellee's submission, para.  123. 
456 Russia's appellee's submission, para.  127. 
457 Russia's appellee's submission, para.  129. WT/DS499/AB/R  
 
- 61 - 
 
  inspections, Russia asserts that while that may be relevant in relation to Article  5.2.2 of the 
TBT Agreement, which is not appealed here, it is not a pertinent consideration under Article  5.1.2.458  
5.4.3   Whether the Panel failed to make an objectiv e assessment of the matter under 
Article  11 of the DSU  with respect to the fourth alternative measure  
5.180.   Ukraine takes issue with the Panel's allocation of the burden of proof under Article  5.1.2 of 
the TBT  Agreement, and in particular with the Panel's findin g that Ukraine failed to establish that 
each proposed less trade -restrictive alternative is reasonably available to Russia.459 We therefore 
begin our analysis by examining the proper allocation of the burden of proof under Article  5.1.2 in 
light of the asses sment to be conducted under this provision, namely , determining whether 
conformity assessment procedures are more strict or applied more strictly than necessary to give 
the importing Member adequate confidence of conformity. We then turn to assess whether,  in the 
circumstances of the present case, the Panel failed to make an objective assessment under Article  11 
of the DSU in its allocation of the burden of proof when examining the alternative measures proposed 
by Ukraine.  
5.181.   The text of Article  5.1 of the TB T Agreement provides, in relevant part:  
Article  5 
Procedures for Assessment of Conformity by Central Government Bodies  
5.1 Members shall ensure that, in cases where a positive assurance of conformity with 
technical regulations or standards is required, the ir central government bodies apply 
the following provisions to products originating in the territories of other Members:  
…  
5.1.2 conformity assessment procedures are not prepared, adopted or applied with a 
view to or with the effect of creating unnecessar y obstacles to international trade. This 
means,  inter alia, that conformity assessment procedures shall not be more strict or be 
applied more strictly than is necessary to give the importing Member adequate 
confidence that products conform with the applica ble technical regulations or standards, 
taking account of the risks non -conformity would create.  
5.182.   The first sentence of Article  5.1.2 requires WTO Members to ensure that conformity 
assessment procedures are not prepared, adopted, or applied with a view to, or with the effect of, 
creating unnecessary obstacles to international trade. Pursuant to the second sentence, "[t]his 
means,  inter alia, that conformity assessment procedures shall not be more strict or be applied more 
strictly than is necessary to give t he importing Member adequate confidence that products conform 
with the applicable technical regulations or standards, taking account of the risks non -conformity 
would create". While the first sentence requires that the conformity assessment procedures not 
create " unnecessary  obstacles to international trade", the second sentence specifies that conformity 
assessment procedures "shall not be more strict or be applied more strictly than is necessary ".  
5.183.   Both sentences of Article  5.1.2 thus refer to the notion o f "necessity". The Appellate  Body 
has previously noted that the word "necessary" refers to a range of degrees of necessity, depending 
on the connection in which it is used.460 In this vein, we consider that "necessity" in the first and 
second sentences of Ar ticle 5.1.2 has to be determined in the specific context of this provision. What 
constitutes an "unnecessary obstacle to international trade" is further informed by the second 
sentence of Article  5.1.2. The qualification "[t]his means" at the beginning of the second sentence, 
followed by the conjunction " inter alia", indicates that the second sentence describes a situation in 
which a conformity assessment procedure is prepared, adopted, or applied with a view to, or with 
the effect of, creating unnecessary obstacles to international trade. Since the second sentence 
 
458 Russia's appellee's submission, para.  130. 
459 See Ukraine's appellant's submission, paras.  194, 202, 214, and 221.  
460 Appellate Body Report, US – Tuna II (Mexico) , para.  318 (referring to Appellate  Body Report, 
Korea  – Various Measures on Beef , para.  161). WT/DS499/AB/R  
 
- 62 - 
 
  specifies the meaning of the term "unnecessary" in the first sentence, it provides useful context for 
understanding how the notion of "necessity" in Article  5.1.2 as a whole should be interpreted.   
5.184.   Under the second sentence, whether a procedure is "more strict" or is "applied more strictly 
than is necessary" has to be assessed in relation to whether it gives the importing Member "adequate 
confidence" that products conform with the applicable techni cal regulations or standards. In our 
view, this phrase points to the function of conformity assessment procedures, which is to ensure 
compliance with the requirements of a technical regulation or standard. Moreover, "the risks 
non-conformity would create" shall be taken account of. What gives the importing Member "adequate 
confidence" that certain products comply with a technical regulation or standard may vary depending 
on the measure at issue and the circumstances of the case. Whether the conformity asses sment 
procedure is more strict or applied more strictly than necessary under the second sentence of 
Article  5.1.2 has to be assessed against its contribution to this function of giving adequate confidence 
that products comply with the underlying technical regulation or standard. Furthermore, the risks 
that non -conformity with a particular technical regulation or standard would create also depend on 
the objective pursued by the particular technical regulation or standard. In that sense, the objective 
of the technical regulation or standard may have relevance in the analysis of trade  restrictiveness 
of the conformity assessment procedure.  
5.185.   In the panel proceedings, both parties and the Panel considered that Article  2.2 provides 
relevant context for the interpr etation of Article  5.1.2.461 We note similarities in the language of 
Articles  2.2 and 5.1.2 of the TBT  Agreement.462 Specifically, the first sentences of Articles  2.2 
and 5.1.2 contain an obligation for WTO Members not to "prepare[], adopt[] or appl[y]" techni cal 
regulations or conformity assessment procedures respectively "with a view to or with the effect of 
creating unnecessary obstacles to international trade". At the same time, there are relevant 
differences in the texts of these provisions. For instance, while the second sentence of Article  2.2 
refers to "trade -restrictive", the second sentence of Article  5.1.2 refers to "more strict" or "applied 
more strictly". Moreover, the function of conformity assessment procedures expressed in the second 
sentence of Article  5.1.2 is to give "adequate confidence" that products conform with the applicable 
technical regulation or standard. By contrast, the third sentence of Article  2.2 refers to a list of 
indicative legitimate objectives that technical regulations could fulfil. As we see it, both Articles  2.2 
and 5.1.2 set out obligations for WTO Members not to create unnecessary obstacles to international 
trade with regard to technical regulations and conformity assessment procedures, respectively, and 
identify certain f actors to be considered in a necessity analysis. In particular, the factors relevant to 
the analysis under Article  2.2 include the legitimate objective of the technical regulation, its trade 
restrictiveness, and the risks non -fulfilment of the objective wo uld create. Under Article  5.1.2, 
relevant factors include the function of the conformity assessment procedure, its strictness, and the 
risks non -conformity with the underlying technical regulation or standard would create.463  
5.186.   Based on these considerations, the existence of an "unnecessary obstacle[] to international 
trade" under the first and second sentences of Article  5.1.2 of the TBT  Agreement, read together, 
may be established on the basis of an analysis of the following factors: (i)  whether the conformi ty 
assessment procedure provides adequate confidence of conformity with the underlying technical 
regulation or standard; (ii)  the strictness of the conformity assessment procedure or of the way in 
which it is applied; and (iii)  the nature of the risks and the gravity of the consequences that would 
arise from non -conformity with the technical regulation or standard. While the function of conformity 
assessment procedures is to ensure compliance with the underlying technical regulation or standard, 
 
461 Panel  Report, paras.  7.406 -7.413.  
462 Article  2.2 of the TBT  Agreement provides: " Members shall ensure that technical reg ulations are not 
prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to 
international trade. For this purpose, technical regulations shall not be more trade -restrictive than necessary to 
fulfil a legitimate obje ctive, taking account of the risks non -fulfilment would create."  
463 The Appellate  Body has stated that an assessment of whether a technical regulation is "more 
trade -restrictive than necessary" within the meaning of Article  2.2 of the TBT  Agreement involves  an evaluation 
of a number of factors. A panel should begin by considering factors that include: (i) the degree of contribution 
made by the measure to the legitimate objective at issue; (ii) the trade restrictiveness of the measure; and 
(iii) the nature of  the risks at issue and the gravity of consequences that would arise from non -fulfilment of the 
objective(s) pursued by the Member through the measure. In most cases, a comparison of the challenged 
measure and possible alternative measures should be undert aken. In particular, it may be relevant for the 
purpose of this comparison to consider whether the proposed alternative is less trade -restrictive, whether it 
would make an equivalent contribution to the relevant legitimate objective (taking account of the risks 
non-fulfilment would create), and whether it is reasonably available. (Appellate  Body Report, US – Tuna II 
(Mexico) , para.  322) WT/DS499/AB/R  
 
- 63 - 
 
  the legitim ate objective of this regulation or standard would also be relevant in determining the 
nature of the risks and the gravity of the consequences that would arise from non -conformity. 
Similarly to Article  2.2, the use of the comparative "more … than" in the s econd sentence of 
Article  5.1.2 suggests that the existence of an "unnecessary obstacle[] to international trade" in the 
first sentence may be ascertained on the basis of a comparative analysis of the above factors.464 
Thus, in order to establish that a conf ormity assessment procedure is more strict than necessary, it 
may be compared to possible alternative procedures. In this respect, panels should examine whether 
such alternative measures are reasonably available, are less strict or applied less strictly, a nd provide 
an equivalent contribution to giving the importing Member adequate confidence that products 
conform with the applicable technical regulations or standards. This analysis ultimately involves a 
holistic weighing and balancing of all relevant facto rs with respect to the challenged conformity 
assessment procedure and in comparison with proposed alternative measures.465 
5.187.   With respect to the burden of proof in establishing the existence of an "unnecessary 
obstacle[] to international trade" under Article  5.1.2, we note that the Appellate  Body has held that 
as a general matter the burden of proof rests upon the party, whether complaining or defending, 
that asserts the affirmative of a particular claim or defence. If that party adduces evidence suffi cient 
to raise a presumption that what is claimed is true, the burden then shifts to the other party, which 
will fail unless it adduces sufficient evidence to rebut the presumption.466 In addition, precisely how 
much and precisely what kind of evidence will be required to establish such a presumption will 
necessarily vary from measure to measure, provision to provision, and case to case.467 
5.188.   The Appellate  Body has said that, thus, the burden of proof with respect to a particular 
WTO provision "cannot be understo od in isolation from the overarching logic of that provision, and 
the function which it is designed to serve".468 In this regard, similarly to Article  2.2, the burden to 
make a prima facie  case under Article  5.1.2 is on the complainant. By contrast in except ions 
employing the concept of necessity, such as Article  XX of the GATT  1994 and Article  XIV of the 
General Agreement on Trade in Services (GATS), the burden of proof with respect to the "necessity" 
of the measure is on the respondent.469 In order to show th at a conformity assessment procedure 
or its application is inconsistent with Article  5.1.2, the complainant must establish that the 
challenged measure creates an unnecessary obstacle to international trade on the basis of the first 
or second sentences of t hat provision. Under the second sentence, the complainant must present 
evidence and arguments sufficient to establish that the challenged conformity assessment procedure 
is more strict or applied more strictly than necessary to give the importing Member ad equate 
confidence that products conform with the applicable technical regulations or standards, taking 
account of the risks non -conformity would create. In making its prima facie  case, a complainant may 
also seek to identify a possible alternative measure that is less strict or applied less strictly, makes 
an equivalent contribution to the objective of ensuring adequate confidence, and is reasonably 
available.470 It is then for the respondent to rebut the complainant's prima  facie case, by presenting 
evidence  and arguments showing that the challenged conformity assessment procedure is not more 
strict or applied more strictly than necessary by demonstrating, for example, that the alternative 
measure identified by the complainant is not, in fact, reasonably avai lable, is not less strict or applied 
less strictly, or does not make an equivalent contribution to the objective of ensuring adequate 
confidence.  
5.189.   We further recall that the burden of proof with respect to a particular WTO provision "cannot 
be understood i n isolation from the overarching logic of that provision, and the function which it is 
designed to serve".471 In this regard, the Appellate  Body has observed that while Article  XX of the 
GATT  1994 provides for exceptions, Article  2.2 of the TBT  Agreement con tains positive obligations, 
and this difference must be taken into account in the allocation of the burden of proof imposed on 
respondents and complainants under the respective provisions.472 Since under Article  5.1.2 of the 
TBT Agreement the burden is on th e complainant to establish the elements of a breach of a positive 
obligation, we consider that the allocation of the burden of proof for complainants and respondents 
 
464 Appellate  Body Report, US – Tuna II (Mexico) , para.  320. 
465 Appellate  Body Reports, US – COOL (Article  21.5 – Canada and Mexico) , para.  5.211.  
466 Appellate  Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, p.  335. 
467 Appellate  Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, p.  335. 
468 Appellate  Body Report, US – Clove Cigarettes , para.  286. (emphasis omitted)  
469 See Appellate  Body Reports, US – COOL (Article  21.5 – Canada and Mexico) , para.  5.328.  
470 See, for Article  2.2 of the TBT Agreement, Appellate  Body Report, US – Tuna II (Mexico) , para.  323. 
471 Appellate  Body Report, US – Clove Cigarettes , para.  286. (emphasis omitted)  
472 Appellate  Body Reports, US – COOL (Article  21.5 – Canada and Mexico) , para.  5.333.  WT/DS499/AB/R  
 
- 64 - 
 
  under this provision should be guided by similar considerations to the one under Article  2.2 of the 
TBT Agreement. Specifically, as noted, while under Article  XX of the GATT  1994 a respondent must 
establish that the alternative measure identified by the complainant is ultimately not reasonably 
available to the respondent, under Article  2.2 of t he TBT  Agreement a complainant must make a 
prima facie  case that its proposed alternative measure is reasonably available.  In any event, the 
fact that alternative measures serve as "conceptual tool[s]" in the assessment of the trade 
restrictiveness of a me asure also informs the nature and amount of evidence required.473 In 
particular, such alternative measures are of a hypothetical nature for purposes of a necessity 
analysis, because they do not (yet) exist, or at least not in the particular form proposed by the 
complainant. Thus, complainants cannot be expected to provide complete and exhaustive 
descriptions of the alternative measures they propose.474 Taking into account that the specific details 
of implementation may depend on the capacity and particular circ umstances of the implementing 
Member in question, it would appear incongruous to expect a complainant to provide detailed 
information on how a proposed alternative would be implemented by the respondent in practice, and 
precise and comprehensive estimates of the cost that such implementation would entail.475 
Therefore, once a complainant has established prima  facie that a proposed alternative is reasonably 
available, it would then be for the respondent to adduce specific evidence as to why the 
implementation of this alternative would be actually impracticable, for instance because it is 
associated with prohibitive costs or substantial technical difficulties.  
5.190.   With these considerations in mind, we turn to Ukraine's claim that the Panel failed to make 
an objecti ve assessment of the matter before it pursuant to Article  11 of the DSU in finding that 
there were no less trade -restrictive alternatives available to Russia within the meaning of 
Article  5.1.2 of the TBT  Agreement, and that Ukraine had failed to establish  that Russia acted 
inconsistently with its obligations under that provision.476 We recall that, before the Panel, Ukraine 
put forward four alternative measures: (i)  additional communications with the relevant Ukrainian 
producers; (ii)  entrusting on -site insp ections in Ukraine to the competent authorities from 
Kazakhstan and Belarus; (iii)  accrediting non -Russian inspectors, either experts or organizations, to 
conduct inspections in Ukraine; and (iv)  off-site inspections.477 We begin our analysis with Ukraine's 
claim, which takes issue with the Panel's allocation of the burden of proof under the alternative 
consisting in the possibility for the FBO to conduct off -site inspections.  
5.191.   Before the Panel, Ukraine argued that the conducting of off -site inspections by th e FBO in 
Ukraine, a possibility that already existed in Russia's legislation, would be a less trade -restrictive 
alternative measure. On appeal, Ukraine submits that the Panel erred in finding that it was for 
Ukraine to submit evidence of compliance with th e statutory requirements for conducting such 
off-site inspections as an alternative to on -site inspections, namely , absence of non -conformities 
and consumer complaints for the railway products covered by the suspended certificates at issue in 
this case.478 In Ukraine's view, the Panel placed an excessive burden of proof on Ukraine and failed 
to make an objective assessment under Article  11 of the DSU.479 Ukraine also argues that the 
Russian authorities did not explain to the Ukrainian producers the reasons for their refusal to conduct 
the off -site inspections, and the inspection control acts during previous inspections were vague.480  
5.192.   We recall that, before the Panel, Ukraine argued that Russia could have made use of off -site 
inspections instead of suspending certificates due to the impossibility of conducting on-site 
inspection control. In Ukraine's view, this alternative measure was reasonably available to Russia 
because off -site inspections were explicitly provided for in Article  5.3 of CS FRT 12 -2003.481 For its 
part, Russia submitted that off -site inspections could be conducted only if the conditions set out in 
Article  7.4.1 of PC -FZT 08 -2013 were satisfied.482 In particular, the disagreement between the 
parties was whethe r two of the conditions in Article  7.4.1 of PC -FZT 08 -2013, absence of facts of 
 
473 Appellate  Body Reports, US – COOL (Article  21.5 – Canada and Mexico) , para.  5.334.  
474 Appellate  Body Reports, US – COOL (Article  21.5 – Canada and Mexico) , para.  5.334.  
475 Appellate  Body Reports, US – COOL (Article  21.5 – Canada and Mexico) , para.  5.338.  
476 Ukraine's appellant's submission, para.  176. 
477 Panel  Report, para.  7.459.  
478 Ukraine's appellant's submission, para.  221. 
479 Ukraine's appellant's submission, paras.  221 and 224.  
480 Ukraine's appellant's submission, para.  222 (referring to Panel  Report, paras.  7.519 and  7.521).  
481 Panel  Report, para.  7.484 (referring to Rules of the Certification System for Federal Railway 
Transport. Procedure for organizing and conducting an inspection control. ( CS FRT 12-2003) ( Panel Exhibit 
UKR-3)). 
482 Panel  Report, para.  7.487 (referring to PC-FZT 08-2013 (Panel Exhibit RUS -23)). WT/DS499/AB/R  
 
- 65 - 
 
  non-conformity during the previous inspection control and absence of consumer complaints as to 
the quality of certified products, were fulfilled with respect to the railway pro ducts affected by the 
14 suspensions at issue.483 As the Panel explained, while "Ukraine advanced arguments in relation 
to the availability of off -site inspections, first under Article  5.3 of CS FRT 12 -2003, and later, once 
Russia had referred to Article  7.4.1 of PC -FZT 08 -2013, under Article  7.4.1"484, Russia provided 
evidence "to rebut Ukraine's assertions as to the availability of off -site inspections".485  
5.193.   The Panel considered that it was for Ukraine to submit evidence of absence of 
non-conformities and consu mer complaints with respect to the products covered by the 
14 suspensions at issue. In the Panel's view, Article  7.4.1 of PC -FZT 08 -2013 was contained in a 
legal instrument either available publicly or upon request, the producers received from the FBO an 
"inspection act" that indicates the results of the inspection, and the FBO would provide information 
about consumer complaints to the affected producers. The Panel further noted that, for most relevant 
railway products, Ukraine did not demonstrate that it u ndertook reasonable efforts to obtain 
information from Russia regarding any non -conformities, with an explanation as to why the 
information could not be obtained.486 Having examined the relevant certificates of each Ukrainian 
producer that the FBO suspended through each of the instructions at issue487, the Panel concluded 
that Ukraine had not established, with respect to any of the suspended certificates covered by the 
14 challenged instructions, that off -site inspection was available under Article  7.4.1.488  
5.194.   We note that, for the Panel, in those instances where the evidence on the record did not 
unequivocally establish that both relevant conditions under Article  7.4.1 of PC -FZT 08-2013 were 
complied with, Ukraine had failed to demonstrate that off -site inspection s were reasonably available 
for the railway products covered by the relevant instructions.489 The question before us is whether 
the Panel failed to make an objective assessment of the matter by erroneously placing the burden 
of proof on Ukraine to adduce evidence as to whether the conditions under Article  7.4.1 were 
satisfied with respect to the r ailway products covered by the suspended certificates at issue, as part 
of Ukraine's prima facie case that the alternative was "reasonably available".  
5.195.    We recall that, in making its prima facie  case that a conformity assessment procedure is 
"prepared, ado pted or applied with a view to or with the effect of creating unnecessary obstacles to 
international trade" under Article  5.1.2 of the TBT  Agreement, a complainant may seek to identify a 
possible alternative measure. As noted above, it is therefore the com plainant's burden to establish 
that such an alternative measure is less trade -restrictive, makes an equivalent contribution to the 
relevant objective, and is reasonably available. At the same time, considering that proposed 
alternative measures serve as "c onceptual tools", and taking into account that the specific details of 
implementation of such measures may depend on the particular circumstances of the implementing 
Member in question, a complainant under Article  5.1.2 cannot be expected to provide detail ed 
information on how a proposed alternative would be implemented by the respondent in practice. 
Instead, once a complainant has established prima facie  that a proposed alternative is reasonably 
available, it is for the respondent to adduce evidence and ar guments, in order to rebut the 
 
483 Panel  Report, paras.  7.499 and 7.501.  
484 Panel  Report, para.  7.516. See also Panel  Report, paras.  7.484 (referring to Rules of the Certification 
System for Federal Railway Transport. Procedure for organizing and conducting an inspection control. 
(CS FRT 12-2003) ( Panel Exhibit UKR -3)) and 7.488 (referring to Ukraine' s second submission to the Panel, 
paras.  215-219 and 221 -227; opening statement at the second Panel meeting, para.  63). 
485 Panel  Report, para.  7.517. Russia submitted evidence of non -conformities or consumer complaints 
for some of the 73  certificates suspen ded through the 14 instructions, and Ukraine submitted evidence of 
previous inspection controls in relation to some of the remaining suspended certificates. (Panel  Report, 
para. 7.518. See also ibid., para.  7.516 (referring to evidence provided by Ukraine, including inspection acts of 
certified products ( Act of inspection dated 23 January 2014 of certified products produced by PJSC [BCI]  
(Panel Exhibit UKR -151 (BCI )); Act of inspection dated 24 January 2014 of certified product s produced by PJSC 
[BCI] (Panel Exhibit UKR -152 (BCI))); evidence provided by Russia, including documents of the FBO providing 
for inconsistencies of certified products ( Documents of the FBO providing for the inconsistencies of the certified 
products of PJSC [BCI] (Panel Exhibi ts RUS -62 (BCI),  RUS-63 (BCI), RUS -64 (BCI), RUS -65 (BCI), and 
RUS-66 (BCI)); Letter dated 23 May 2016 from [BCI] to the FBO  (Panel Exhibit RUS -67 (BCI)); Letter dated 
13 June 2013 from [BCI] to the Deputy Minister of the MOT  (Panel Exhibit RUS -68 (BCI)) ; Letter dated 
3 December  2015 from [BCI] to the FBO (Panel Exhibit RUS-69 (BCI)); Letter dated 17  February 2013 from 
[BCI] to the FBO (Panel Exhibit RUS -70 (BCI)))))  
486 Panel  Report, para.  7.519.  
487 Panel  Report, paras.  7.520 -7.534.  
488 Panel  Report, para.  7.535. 
489 See Panel  Report, paras.  7.521 -7.534.  WT/DS499/AB/R  
 
- 66 - 
 
  complainant's prima facie  case, by demonstrating, for example, that the alternative measure is not 
reasonably available and that its implementation would be impracticable, inter alia , because 
implementation costs would be pro hibitive or the alternative would entail substantial technical 
difficulties or undue burden for the Member in question.  
5.196.   As noted above, in the present case, Ukraine initially argued that Russia could have made 
use of off -site inspections pursuant to Artic le 5.3 of CS FRT 12 -2003.490 Russia confirmed the 
availability of this measure under its legislation, albeit subject to the conditions set out in 
Article  7.4.1 of PC -FZT 08-2013.491 In response to Russia invoking Article  7.4.1, Ukraine further 
contended that R ussia failed to provide evidence that the FBO examined the conditions laid down in 
Article  7.4.1 as regards the certificates suspended through the 14 instructions challenged by 
Ukraine, before deciding that off -site inspections were not available.492 We obse rve that Ukraine 
challenged only the application of Russia's conformity assessment procedure to the certificates at 
issue, rather than the procedure itself. It was therefore possible for Ukraine to identify an alternative 
measure that coincides with an ins trument that already existed under Russia's legislative framework. 
At the same time, alternative measures need not be already present in the legislation of the 
responding Member, even when a conformity assessment procedure is challenged as applied, and 
not as such. Indeed, the role of alternative measures is to assist in determining whether a conformity 
assessment measure taken by a Member is more strict or applied more strictly than is necessary to 
ensure conformity under Article  5.1.2, and not to positive ly establish that the conditions set out 
under national law for applying a different measure may have been present. We also note the 
Appellate  Body's observation, in the context of Article  2.2 of the TBT  Agreement, that the nature 
and degree of evidence re quired to establish a prima facie  case of "reasonable availability" of 
proposed alternative measures should be informed by the fact that "alternative measures are of a 
hypothetical nature" and "do not yet exist in the Member in question, or at least not in  the particular 
form proposed by the complainant".493 Above, we took the view that a similar burden of proof applies 
with regard to the assessment of alternative measures under Article  5.1.2 of the TBT  Agreement.  
5.197.   The purpose of this relational analysis unde r Article  5.1.2 is therefore to compare the 
measure at issue and an alternative measure, or their respective applications, in terms of strictness 
and the degree of contribution to the achievement of the objective to give adequate confidence of 
conformity. Such comparison cannot be carried out with an alternative measure that is merely 
theoretical in nature, because, for instance, the implementing Member is not capable of taking it, or 
because it imposes an undue burden on that Member.  At the same time, the comparison of the 
challenged measure with a hypothetical alternative measure remains at a conceptual level. Thus, 
the fact that a measure with the same or similar content as the proposed alternative already exists 
in the legislative framework of the respon dent Member does not change the function of the 
alternative measure as a "conceptual tool" in the necessity analysis. Therefore, as part of making a 
prima facie  case, the complainant should provide sufficient indication that the proposed alternative 
would be reasonably available to the implementing Member, for instance by showing that the costs 
of the proposed alternatives would not be a priori prohibitive, and that potential technical difficulties 
associated with their implementation would not be of such a  substantial nature that they would 
render the proposed alternatives merely theoretical in nature.  The burden would then shift to the 
respondent to submit evidence substantiating that the proposed alternative measures were indeed 
merely theoretical in natu re, or entailed an undue burden, for instance, because they involved 
prohibitively high costs or would entail substantial technical difficulties.494 
5.198.   In the present case, even though the alternative proposed by Ukraine coincided with a 
measure that already ex isted in Russia's legislation, the alternative remained hypothetical in nature, 
insofar as it had not yet been used by Russia with respect to the suspensions at issue. The 
comparison between the measure actually taken by Russia and this alternative measure  therefore 
had to be undertaken at a conceptual level for purposes of making a prima facie  case as to whether 
the alternative was reasonably available to Russia. The Panel by contrast considered that "it was for 
Ukraine to submit evidence of absence of non -conformities and consumer complaints concerning the 
 
490 Panel  Report, para.  7.483 (referring to Rules of the Certification System for Federal Railway 
Transport. Procedure for organizing and conducting an inspection control. ( CS FRT 12-2003) ( Panel  Exhibit 
UKR-3)). 
491 Panel  Report, para.  7.487 (referring to PC-FZT 08-2013 (Panel Exhibit RUS -23)). 
492 Panel  Report, para.  7.488.  
493 Appellate  Body Reports, US – COOL (Article  21.5 – Canada and Mexico) , para.  5.328.  
494 See Appellate  Body Reports, US – COOL (Article  21.5 – Canad a and Mexico) , para.  5.339.  WT/DS499/AB/R  
 
- 67 - 
 
  railway products covered by the suspended certificates."495 It appears that, because the proposed 
alternative coincided with a measure foreseen in Russia's legislation, the Panel took the view that 
the bur den was on Ukraine to adduce evidence that the conditions attached to the measure, as it 
existed under Russia's law, would have been met, if the measure were to have been applied to each 
of the suspensions at issue. However, as observed above, the nature a nd degree of evidence 
required to establish the reasonable availability of proposed alternative measures do not change 
simply because such measures coincide with an instrument foreseen in the legislation of the 
importing Member. Instead, the burden of proo f continues to be informed by the "hypothetical 
nature" of the alternative measure. Thus, in making the choice to identify an alternative that 
coincides with an instrument in existence under Russia's legislative framework, Ukraine was not 
required to demon strate, for purposes of showing that the alternative was prima facie  reasonably 
available, whether the measure described in Article  5.3 of CS FRT 12 -2003 and Article  7.4.1 of 
PC-FZT 08-2013 could have applied in the specific instances related to the suspen sions of certificates 
at issue. In our view, the Panel's analysis conflated two distinct concepts: the alternative measure 
proposed by Ukraine and the measure in existence under Article  5.3 of CS FRT 12 -2003 and 
Article  7.4.1 of PC -FZT 08 -2013.  
5.199.   Specificall y, the question before the Panel under Article  5.1.2 was whether a less strict 
manner of application of this procedure existed, other than the suspension of certificates, which 
would also make an equivalent contribution to the objective of providing Russia  with adequate 
confidence that Ukrainian railway products conformed with Russia's technical regulations, and which 
would be reasonably available to Russia. In this regard, the Panel had to assess whether the 
possibility of conducting off -site inspections u nder requirements such as those in Article  7.4.1 of 
PC-FZT 08 -2013 constitutes a reasonably available less strict manner of application. Accordingly, for 
purposes of establishing reasonable availability, the Panel had to assess whether the alternative, as 
described by Ukraine, was not merely theoretical in nature and a priori did not entail any undue 
burden for Russia. The Panel should have then turned to examine whether Russia had submitted 
evidence rebutting Ukraine's prima facie case by adducing specific  evidence and arguments as to 
why, in the circumstances of this case, the alternative measure was not in fact reasonably available. 
The Panel, however, did not address the question whether the description of the measure provided 
by Ukraine was sufficient t o demonstrate prima  facie that Russia would not be incapable of taking 
such an alternative measure. Indeed, the Panel should have considered the implications of the fact 
that the proposed measure already existed as a possible alternative to on -site inspect ions in Russia's 
legislation and the extent to which this fact in itself demonstrated that the measure was prima facie  
reasonably available, as opposed to merely theoretical. Instead, the Panel reasoned that, because 
information on the absence of non -confo rmities and consumer complaints was in principle available 
to Ukraine, it was for Ukraine to submit evidence relating to the application of these conditions to 
the products covered by the suspensions at issue.496 The availability of certain information to 
Ukraine, as well as the issue of whether "it undertook reasonable efforts to obtain [this] information 
from Russia"497, is, however, distinct from the issue of which Member bears the burden of proof with 
respect to the application of the conditions in Article  7.4.1.  
5.200.   In light of the above, we do not see that, for purposes of establishing the reasonable 
availability of the alternative measure consisting in the conduct of off -site inspections, it was 
necessary for Ukraine to provide information about the complian ce with the two requirements of 
Article  7.4.1, namely , the absence of non -conformities and consumer complaints, with respect to 
the railway products covered by the suspensions at issue. However, the majority of the Panel's 
findings that Ukraine failed to d emonstrate the availability of off -site inspections under Article  7.4.1 
for the railway products covered by instructions 1 to 14 are based on the absence of evidence  on 
record regarding non -conformities and consumer complaints concerning these products.498 This was 
so even in those cases where it remained unclear whether evidence on inconsistencies related to the 
products at issue499 or where evidence showed no non -conformities in the most recent inspection 
control but there was no evidence of consumer complain ts with respect to the same products.500 
Therefore, the burden of proof that the Panel placed on Ukraine went beyond what Ukraine was 
required to establish in making a prima facie case that a hypothetical measure, such as the measure 
 
495 Panel  Report, para.  7.519.  
496 Panel  Report, para.  7.519.  
497 Panel  Report, para.  7.519.  
498 Panel  Report, paras.  7.521 -7.534.  
499 Panel  Report, paras.  7.521, 7.523, and 7.527 -7.528.  
500 Panel  Report, para.  7.524.  WT/DS499/AB/R  
 
- 68 - 
 
  provided for in Article  5.3 of CS FRT 12 -2003 and Article  7.4.1 of PC -FZT 08 -2013, would have been 
reasonably available to Russia in the circumstances of the case.  
5.201.   In sum, we consider that by placing the burden of proof on Ukraine to provide evidence as 
to the existence of the tw o conditions under Article  7.4.1 of PC -FZT 08 -2013 in all individual 
instances in the present case and for purposes of establishing that the proposed alternative measure 
was reasonably available, the Panel erred in its allocation of the burden of proof und er Article  5.1.2 
of the TBT  Agreement with respect to the 14  instructions suspending certificates in the present 
proceedings.  
5.202.   We recall that Ukraine also requests us to reverse the Panel's findings in paragraph  8.1.c.iii 
of the Panel  Report regarding the F BO's rejections of applications for new certificates by Ukrainian 
producers of railway products.501 Russia submits that Ukraine did not meaningfully address the 
Panel's findings set out in paragraph  8.1.c.iii, insofar as Ukraine simply alleged that its asser tions 
with respect to rejections of certificates are similar to those it raised concerning suspension of 
certificates.502 In Russia's view, a mere assertion is not enough to prove a violation of Article  11 of 
the DSU.503 We note that on appeal Ukraine has not put forward separate arguments relating to the 
Panel's finding concerning the rejections of certificates. Therefore, Ukraine has not substantiated its 
request for reversal. We further observe that Ukraine's claim before the Panel concerning these 
rejection s was based on a different legislative framework, namely , CU Technical 
Regulations  001/2011, 002/2011, and 003/2011.504 Moreover, the relevant alternative measure 
proposed by Ukraine in this context was different, in that it concerned the availability of off -site 
testing of samples for applications submitted under scheme  3c in Annex  6 to CU Technical 
Regulation  001/2011.505 Most importantly, with respect to the burden of proof, the Panel found as 
follows:  
[T]here is no evidence on record that the FBO's practice of permitting off -site testing of 
samples under the conditions set out in Article  7.4.1 when processing application s 
concerning railway products produced in series under CU Technical Regulation 001/2011 
has been officially published or is publicly known or available. Nor is there evidence that 
the FBO informed the producers elsewhere in Ukraine who were applying for ne w 
certificates under CU Technical Regulation 001/2011 that off -site testing of samples was 
a possibility.506 
5.203.   In these circumstances, the Panel considered that Ukraine did not need to demonstrate, as 
part of substantiating its claim that off -site sampling is a less strict manner of application reasonably 
available to Russia,  that the conditions set out in Article  7.4.1 were satisfied in the case of the 
applications submitted pursuant to scheme  3c.507 Taking into account the Panel's conclusion and in 
the absence of any substantiation by Ukraine, we do not consider that our findings with respect to 
the Panel's allocation of the burden of proof in the context of Ukraine's claim regarding the 
suspensions of certificates would have an implication for its analysis rega rding the rejections of 
applications for new certificates. Thus, Ukraine has not established that the Panel failed to make an 
objective assessment in its allocation of the burden of proof in this respect.  
5.4.4   Completion of the legal analysis  
5.204.   We now turn to ass ess whether we are in a position to complete the legal analysis and find 
whether Russia has acted inconsistently with Article  5.1.2 of the TBT  Agreement. In order to do so, 
we consider whether we have sufficient factual findings by the Panel and undisputed  facts on the 
Panel record to find that the alternative manner of applying the conformity assessment procedures: 
(i) is less strict; (ii)  makes an equivalent contribution to the objective of providing the importing 
Member with adequate confidence of confor mity; and (iii)  is reasonably available to the importing 
Member.  
 
501 Ukraine's appellant' s submission, para.  226. 
502 Russia's appellee's submission, para.  89. 
503 Russia's appellee's submission, para.  89. 
504 Panel  Report, para.  7.592.  
505 Panel  Report, paras.  7.688 and 7.691.  
506 Panel  Report, para.  7.697.  
507 Panel  Report, para.  7.699.  WT/DS499/AB/R  
 
- 69 - 
 
  5.205.   With respect to the alternative measure consisting in the conduct of off -site inspections, the 
Panel found that Ukraine had failed to establish that conducting off -site inspection control was  
reasonably available under Article  7.4.1 of PC -FZT 08 -2013. As we found above, the Panel erred in 
finding that Ukraine had to demonstrate that no non -conformities and consumer complaints existed 
pursuant to the requirements of Article  7.4.1 of PC -FZT 08 -2013 with respect to the railway products 
covered by the suspensions at issue. By focusing its assessment on whether Ukraine put forward 
evidence as to the compliance of these products with the requirements of Article  7.4.1 in each 
individual case, the Pane l did not conduct an analysis of whether Ukraine's own description of the 
alternative measure was sufficient to make a prima facie case as to its reasonable availability. The 
Panel also did not assess whether the proposed alternative manner of application is less strict and 
makes an equivalent contribution to the objective of providing Russia with adequate confidence of 
conformity. In the absence of such an analysis by the Panel, we do not have sufficient factual findings 
on which to base our completion of the legal analysis. Furthermore, the relevance of a number of 
pieces of evidence is disputed by the parties.508 Finally, in weighing and balancing the factors 
relevant to the existence of an "unnecessary obstacle[] to international trade" under Article  5.1.2 of 
the TBT  Agreement, the Panel gave prominence to its finding that Ukraine failed to demonstrate that 
there were less strict manners of applying Russia's conformity assessment procedure that were 
available to the FBO under the applicable conformity asses sment procedure.509 In light of our 
reversal of the Panel's finding as to the burden of proof in assessing the reasonable availability of 
the alternative proposed by Ukraine, we cannot rely on the Panel's weighing and balancing analysis. 
Therefore, given the  absence of sufficient factual findings by the Panel and undisputed facts on the 
Panel record, we are not in a position to conduct an overall assessment of whether Russia applied 
its conformity assessment procedure more strictly than necessary within the m eaning of Article  5.1.2 
of the TBT  Agreement.  
5.4.5   Whether the Panel failed to make an objective assessment of the matter under 
Article 11 of the DSU with respect to the other alternative measures  
5.206.   We now turn to consider whether, with respect to the other three  alternative measures, the 
Panel failed to conduct an objective assessment of the matter. We recall our finding that, in 
determining the existence of reasonably available less trade -restrictive alternative measures under 
Article  5.1.2 of the TBT  Agreement,  it is for the complainant to make a prima facie  case that the 
proposed alternative is reasonably available to the respondent. In establishing such a prima facie 
case and considering that proposed alternative measures serve as "conceptual tools", a complai nant 
cannot be expected to provide detailed information on how a proposed alternative would be 
implemented by the respondent in practice. The complainant would nevertheless have to provide 
sufficient indications that the proposed alternative does not a priori impose an undue burden on the 
respondent, such as prohibitive costs or substantial technical difficulties, and is not merely 
theoretical in nature.510  
5.207.   We first address the alternative consisting in the FBO accrediting non -Russian experts or 
organization s to conduct inspections in Ukraine under its accreditation rules and in particular 
Article  10 of CS FRT 01 -96.511 Unlike the Panel, we do not consider that it was Ukraine's burden to 
put forward evidence as to why it may have been impracticable for Russia t o implement this 
procedure in practice, for instance because the Ministry could not itself approach experts and issue 
them with accreditation certificates, and there were no non -Russian experts qualified to conduct 
inspection control at the time of the sus pensions.512 As noted above, even if Ukraine made the choice 
to refer to an alternative that was already present in Russia's legislative framework, Ukraine was 
not required to demonstrate, for purposes of showing that the alternative was prima facie reasonab ly 
available, that the requirements of the existing measure in Russia's legislation were fulfilled in the 
specific instances related to the suspensions of certificates. At the same time, we note that, unlike 
the alternative consisting in the conduct of off -site inspections, Article  10 of CS  FRT 01 -96 does not 
specifically outline this alternative, but simply contains no language as to the nationality that an 
FBO expert must have. Thus, Article  10 does not speak to the reasonable availability of Ukraine's 
proposed measure. Furthermore, the mere reference to the theoretical possibility of appointing 
 
508 See e.g. Panel  Report, paras.  7.521, 7.523, and 7.527 -7.528.  
509 Panel  Report, para.  7.539.  
510 See, for Article  2.2 of the TBT  Agreement, Appellate  Body Reports, US – COOL  
(Article  21.5 – Canada and Mexico) , para.  5.339.  
511 Panel  Report, paras.  7.477 and 7.480.  
512 Panel  Report, para.  7.480.  WT/DS499/AB/R  
 
- 70 - 
 
  experts of other nationalities due to the absence of any provision to the contrary does not lay out in 
sufficient detail an alternative manner of application of Ru ssia's conformity assessment procedure 
allowing the Panel to assess whether a priori the measure would impose an undue burden on the 
respondent, such as prohibitive costs or substantial technical difficulties. In our view, by stating that 
"it is not clear that [Article  10 of CS  FRT 01 -96] provides for the possibility of accrediting non -Russian 
experts to conduct on -site inspections", the Panel recognized that Ukraine's description of the 
alternative measure was not precise enough to establish that this alte rnative was reasonably 
available to Russia. In light of the above, we agree with the Panel that, by merely referring to 
Russia's rules governing the suspension of certificates and arguing that those rules "do not preclude 
the accreditation of non -Russian e xperts, because they do not prescribe the nationality of the experts 
who can be used"513, Ukraine did not meet its burden with respect to the reasonable availability of 
this alternative.  
5.208.   Second, we turn to the alternative measure consisting in the FBO entrus ting inspections with 
respect to Ukrainian railway products to the competent authorities in Kazakhstan or Belarus under 
the rules of the existing CU. We do not see that the mere existence of a customs union  with a unified 
legal framework for technical regulations and conformity assessment procedures514 necessarily 
translates into the possibility for one of the custom s union 's members to entrust competent 
authorities of another sovereign member with the conduct  of inspections in the context of such 
common rules. While the FBO could have made such a request for assistance, its outcome would 
have been uncertain. We therefore agree with the Panel's conclusion that it is not self -evident "that 
the FBO has the power to entrust foreign government authorities to carry out tasks entrusted to 
it".515 Moreover, as we see it, there is a difference between the competent authority's power to 
recognize a certificate issued by another authority and the power of that authority to entrust other 
competent authorities with the task of performing inspections.516 Since the power to recognize a 
certificate issued by another authority does not necessarily entail the power to entrust that authority 
with the carrying out of an inspection, we do not consider that the Panel erred in concluding that 
Ukraine failed to make a prima facie case with respect to the reasonable availability of this 
alternative.  
5.209.   Third, we address the alternative measure consisting in the FBO communicating with the 
releva nt Ukrainian producers in order to create conditions for the carrying out of on -site inspections. 
In our view, the Panel correctly concluded that the communications between the FBO and the 
Ukrainian producers have an uncertain outcome and could not in them selves constitute a reasonably 
available alternative measure capable of comparison with the challenged suspensions.517 Indeed, 
such communications "could theoretically lead to a situation that would allow the conformity 
assessment procedure to continue, just  as it could lead to a situation where the conformity 
assessment procedure would not continue and certificates would be suspended".518 Furthermore, we 
note that Ukraine did not elaborate on the substance of the proposed private security arrangements 
and ther efore on why such arrangements could be considered a reasonably available alternative to 
the suspensions of certificates. We therefore agree with the Panel that Ukraine did not establish that 
its proposed alternative is reasonably available.  
5.4.6   Conclusion  
5.210.   Ukraine was not required to demonstrate, for purpose s of showing that the proposed 
alternative measure consisting in the conduct of off -site inspections was prima  facie reasonably 
available, whether the measure described in Article  5.3 of CS  FRT 12-2003 and Article  7.4.1 of 
PC-FZT 08 -2013 could have applied in the specific instances related to the suspensions of certificates 
at issue. However, the Panel reasoned that, because information on the absence of non -conformities 
and consumer complaints was in princi ple available to Ukraine, it was for Ukraine to submit evidence 
relating to the application of these conditions to the products covered by the suspensions at issue. 
We therefore find that the Panel failed to make an objective assessment of the matter befor e it 
 
513 Panel  Report, para.  7.478.  
514 Ukraine's appellant's submission, paras.  203-205. 
515 Panel  Report, para.  7.474.  
516 See Ukraine's appellant's submission, para.  208 (referring to Panel  Report, paras.  7.927 -7.928).  
517 In reaching these conclusions, the Panel relied on the Appellate  Body's reasoning in US – Gambling 
that consultations are by definition a process, the results of which are uncertain and therefore not capable of 
comparison with the me asures at issue in that case. (Panel  Report, para.  7.467 (referring to Appellate  Body 
Report, US – Gambling , para.  317))  
518 Panel  Report, para.  7.468.  WT/DS499/AB/R  
 
- 71 - 
 
  under Article  11 of the DSU in allocating the burden of proof under Article  5.1.2 of the 
TBT Agreement in its analysis of this alternative measure. We also find that Ukraine failed to 
establish that the Panel erred in making an objective assessment of  the matter before it pursuant 
to Article 11 of the DSU in finding that Ukraine failed to establish that the other three proposed 
alternatives were reasonably available.  
5.211.   Consequently, we reverse  the Panel's finding, in paragraphs 7.544 and 8.1.b.ii of the  
Panel  Report, that Ukraine failed to establish, with respect to each of the 14  instructions suspending 
certificates, that Russia has acted inconsistently with its obligations under Article  5.1.2, first and 
second sentences, of the TBT  Agreement.  
5.5  Ukraine' s claim concerning the existence of systematic import prevention  
5.212.   Ukraine requests us to reverse the Panel's finding in paragraph  8.1.e of its Report that, 
because it did not demonstrate the existence of systematic import prevention of railway products 
into Russia in the form of an unwritten measure, Ukraine failed to establish its claims of inconsistency 
with Articles  I:1, XI:1, and XIII:1 of the GATT  1994. Ukraine asserts that the Panel failed to make 
an objective assessment of the matter befo re it when examining the existence of systematic import 
prevention by applying an incorrect standard of review and wrongly allocating the burden of proof.519  
5.5.1   The Panel's findings  
5.213.   Before the Panel, Ukraine claimed that Russia maintained a measure consisting of the 
systematic prevention of Ukrainian railway products from being imported into Russia by means of: 
(i) suspending valid certificates held by Ukrainian producers; (ii)  refusing to issue new certificates; 
and (iii)  not recognizing certificates issued by  other CU  countries. Ukraine alleged that this measure 
was inconsistent with Russia's obligations under Articles  I:1, XI:1, and XIII:1 of the GATT  1994.520 
The Panel noted that, to establish the existence of an unwritten measure, a complaining party must 
provide evidence demonstrating: (i)  that the measure is attributable to the responding party; (ii)  the 
precise content of the measure; and (iii)  other elements arising from the manner in which the 
complaining party described or characterized the measure.521 The Panel added that a complaining 
party may also have to demonstrate how the different components of the measure operate together 
as part of a single measure and how such single measure exists as distinct from its components. 
Furthermore, the Panel noted tha t the evidentiary threshold for proving the existence of an unwritten 
measure is high.522 The Panel further observed that a complaining party seeking to demonstrate the 
systematic nature of a measure  must demonstrate that such measure is aimed at achieving a  
particular policy or result and is done according to a system, plan, or organized method or effort.523 
The systematic nature of a measure could be demonstrated, for instance, by proving that the 
measure is applied to economic operators in a broad variety of  different sectors as part of an 
organized effort, or coordinated and implemented at the highest levels of government.524 
5.214.   On the basis of the foregoing observations, the Panel went on to examine evidence of the 
existence of the measure. The Panel noted that the evidence submitted by Ukraine consisted of: 
(i) three components of the alleged measure (suspensions of certificates, rejections of certificates, 
and non -recognition of certificates issued in other CU  countries); and (ii)  trade and economic data 
concer ning the decline in the imports of Ukrainian railway products into Russia and in Ukraine's share 
of Russia's imports of railway products.525  
5.215.   The Panel began by determining whether the three individual components establish the 
existence of this measure and i ts systematic nature. With respect to the first component, namely , 
the suspension of certificates, the Panel found that the evidence concerning the 14  instructions 
through which the FBO suspended valid certificates did not support the conclusion that the 
 
519 Ukraine's appellant's submission, paras.  22-23 and 60.  
520 Panel  Report, para.  7.941.  
521 Panel  Report, para . 7.946.  
522 Panel  Report, para.  7.946 (referring to Appellate  Body Reports, Argentina – Import Measures , 
paras.  5.104 and 5.108; US – Zeroing (EC) , para.  198; Panel  Reports, Indonesia – Chicken , paras.  7.616 
and 7.656; Russia – Tariff Treatment , paras.  7.283, 7.338, and 7.341 ). 
523 Panel  Report, para.  7.947.  
524 Panel  Report, para.  7.947 (referring to Appellate  Body Reports, Argentina – Import Measures , 
para. 5.142; Panel  Report, Russia – Tariff Treatment , paras.  7.302 -7.311).  
525 Panel  Report, para.  7.989.  WT/DS499/AB/R  
 
- 72 - 
 
  FBO adopted these instructions with the aim of preventing importati on of Ukrainian railway products. 
Rather, the FBO adopted those instructions because its inability to conduct inspections in Ukraine 
due to the situation there prevented the FBO from having adequate confidence about the products' 
conformity with the releva nt technical requirements.526 With respect to the second component, 
namely , the rejection of certificates, the Panel recalled that the FBO had valid grounds to reject 
many of the applications for certificates submitted by Ukrainian producers under CU  Technic al 
Regulations  001/2011 and 003/2011.527 Furthermore, the Panel noted that its findings, that in the 
case of two applications and one product subject to another application the FBO rejected applications 
unjustifiably and contrary to Russia's obligations unde r Article  5.1.2, rest on the lack of evidence on 
the record regarding past non -conformities or consumer complaints involving the producers at issue. 
With respect to the third component, namely , the non -recognition of certificates issued in other 
CU countri es, the Panel considered that the facts surrounding the application of the non -recognition 
requirement are in principle consistent with Ukraine's allegation regarding Russia's prevention of the 
importation of Ukrainian products.528 However, in the Panel's vi ew, the fact that one of the 
three  elements of the alleged systematic import prevention unjustifiably restricts access to the 
Russian market was not sufficient to demonstrate the existence of systematic prevention of imports 
of Ukrainian products as an ind ependent measure.529 According to the Panel, there was no indication 
that the combined effect of these distinct measures was the reason for applying each of them.530  
5.216.   The Panel then proceeded to the examination of additional evidence submitted by Ukraine 
in support of the systematic nature of the measure. Regarding Ukraine's evidence relating to the 
substantial repetition of suspensions of certificates and rejections of new applications for 
certification, the Panel noted that this evidence showed the number of certificates accepted rather 
than repetition with regard to rejections of new applications from August  2014.531 In the Panel's 
view, although the evidence showed repetition with regard to suspensions of valid certificates since 
2014, such evidence was not, b y itself, probative of the existence of the measure or of its systematic 
nature as Russia had justified reasons for such suspensions. The Panel also found no evidentiary 
basis for the proposition that the FBO should have suspended more certificates also in  the case of 
producers from the other countries identified in the table, but did not.532 Overall, the Panel did not 
consider that the differences in the number of certificates held, suspended, and applications rejected, 
concerning producers from different co untries, established the existence of the alleged systematic 
import prevention.533 
5.217.   Next, the Panel addressed Ukraine's submission that the systematic nature of the measure 
can be evidenced through a "set of trade restrictive measures" adopted by Russia follo wing the 
conclusion of the Association Agreement by Ukraine with the European  Union  (Association 
Agreement) .534 The Panel agreed that the media articles presented by Ukraine point to tensions in 
the bilateral relationship in connection with the negotiation a nd conclusion by Ukraine of the 
Association Agreement, and also refer to trade action that Russian authorities might take or did take 
against Ukraine in response. Ultimately, however, the evidence presented to the Panel did not 
demonstrate that Russia adop ted a plan or decided to embark on an organized effort to prevent the 
importation into Russia of Ukrainian products in general or Ukrainian railway products in particular. 
Moreover, for the Panel, even if trade -restrictive measures were taken with regard t o some Ukrainian 
products, this did not necessarily mean that such measures were taken also with regard to Ukrainian 
railway products.535  
5.218.   Overall, with respect to the components of the measure and its systematic nature, the Panel 
concluded that the evidence  submitted by Ukraine did not establish that the three elements have 
been designed, structured, or operated in combination so as to constitute a separate measure with 
the aim of systematic prevention.536 Nor did the evidence establish that those elements for m part 
of a plan or coordinated effort directed at attaining the aim of preventing the importation of Ukrainian 
 
526 Panel Report, para.  7.959.  
527 Panel  Report, para.  7.960.  
528 Panel  Report, paras.  7.962 -7.963.  
529 Panel  Report, para.  7.964.  
530 Panel  Report, para.  7.965.  
531 Panel  Report, para.  7.969.  
532 Panel  Report, para.  7.970.  
533 Panel  Report, para.  7.972.  
534 Panel  Report, paras.  7.967 and 7.973.  
535 Panel  Report, para.  7.974.  
536 Panel  Report, para.  7.990.  WT/DS499/AB/R  
 
- 73 - 
 
  railway products into Russia.537 Finally, according to the Panel, the trade and other economic data 
submitted by Ukraine also did not establish th e existence of the alleged systematic import 
prevention.538 
5.5.2   Claims and arguments on appeal  
5.219.   On appeal, Ukraine asserts that the Panel failed to make an objective assessment of the 
matter before it when examining the existence of systematic import prevention by applying an 
incorrect standard of review and wrongly allocating the burden of proof. Specifically, Ukraine submits 
that Russia systematically prevented the importation of railway products from Ukraine by suspending 
conformity certificates, re jecting the application for new certificates, and refusing the recognition of 
existing certificates. Ukraine explains that some of these decisions were challenged on an individual 
basis and that the individual decisions formed part of the evidence showing the existence of the 
measure at issue.539 Ukraine contends that, following the implementation of the measures, exports 
of railway products from Ukraine to Russia, which had reached USD  1.7 billion in 2013, decreased 
to USD  600 million in 2014 and to only USD  110 million in 2015. For Ukraine , such a drastic drop in 
exports cannot be justified by anything but an artificial intervention in the traditional and ordinary 
course of trade.540  
5.220.   Ukraine alleges that the Panel failed to conduct a holistic assessment of al l the evidence 
before it, thus failing to meet the standard of Article  11 of the DSU.541 Ukraine agrees with the Panel 
that in order to demonstrate the existence of an unwritten measure the complainant had to provide 
evidence demonstrating: (i)  that the meas ure is attributable to the respondent; (ii)  the precise 
content of the measure; and (iii)  other elements arising from the manner in which the complainant 
described the measure, such as the nature or operation of the measure.542 However, for Ukraine, 
the Pane l failed to properly apply this legal standard to the facts of the present case, because it did 
not consider relevant evidence submitted by Ukraine and did not provide explicit conclusions with 
regard to the existence of an unwritten measure, before contin uing its assessment of specific 
elements of that measure. Ukraine argues that the order of analysis was of paramount importance 
in this case, and that by adopting an incorrect order of analysis, the Panel failed to comply with its 
duty to make an objective  assessment of the matter.543  
5.221.   Regarding the Panel's analysis of the systematic nature of the measure, Ukraine recalls that 
the Panel rejected its arguments concerning the "repetition of suspensions and rejections" of 
certificates and the "set of trade restr ictive measures" and concluded that the evidence failed to 
demonstrate the existence of the measure or its systematic nature or an organized effort of Russia 
to prevent Ukrainian imports.544 Ukraine contends that the Panel erred in setting a very high burden  
of proof for Ukraine, because such an organized effort was not prescribed in any particular law or 
regulation.545 Finally, Ukraine alleges that the Panel erred in reviewing individual measures in 
isolation from each other and failed to consider evidence in its totality.546 
5.222.   With respect to its allegation that the Panel erred in the allocation of the burden of proof, 
Ukraine takes issue with a finding made by the Panel in the context of its analysis under Article  5.1.2, 
namely , that "there is no evidence on reco rd that would allow [the Panel] to either accept or reject 
Russia's explanation" that it granted applications for certificates of producers located in the eastern 
regions of Ukraine because no inconsistencies had been identified with regard to the products  at 
issue in the course of the previous inspections, and thus the conditions for off -site testing or 
inspection were satisfied.547 Ukraine notes that the Panel's finding of inconsistency under 
Article  5.1.2 rested on the lack of evidence regarding past non -conformities or consumer complaints 
in the case of the rejections of certificates, and that Russia's evidence of absence of non -conformities 
 
537 Panel  Report, para.  7.991.  
538 Panel  Report, para.  7.992.  
539 Ukraine's appellant's submission, para.  30. 
540 Ukraine's appellant's su bmission, para.  31 (referring to Panel  Report, para.  2.2). 
541 Ukraine's appellant's submission, para.  34. 
542 Ukraine's appellant's submission, para.  35 (referring to Panel  Report, paras.  7.946 -7.947).  
543 Ukraine's appellant's submission, paras.  36-37. 
544 Ukraine's appellant's submission, paras.  39-40 (referring to Panel  Report, paras.  7.972 -7.973 
and 7.976).  
545 Ukraine's appellant's submission, para.  40. 
546 Ukraine's appellant's submission, para.  43. 
547 Ukraine's appellant's submission, paras.  48-50 (referring to Panel  Report, para.  7.960).  WT/DS499/AB/R  
 
- 74 - 
 
  post-dated the date of issuance of the certificates for producers in the eastern regions .548 Ukraine 
highlights that t his consideration did not preclude the Panel from coming to the conclusion that there 
was no evidence on the record that would allow it to either accept or reject Russia's explanation.549 
By making such conclusions, the Panel, in Ukraine's view, failed to ma ke an objective assessment 
by releasing Russia from its burden of proof and placing an unreasonable burden of proof on 
Ukraine.550  
5.223.   Furthermore, Ukraine alleges that the Panel erred in the application of the burden of proof 
when assessing evidence relating t o the substantial repetition of suspensions and rejections of 
certificates.551 For Ukraine, the Panel erred in concluding that " Russia in the case of the challenged 
suspensions had justified reasons for suspending certificates concerning Ukrainian producers" , 
without providing reasoning for its conclusion that Russia "justified" the reasons for suspending 
these certificates.552 In addition, Ukraine takes issue with the Panel's conclusion that it did not have 
an "evidentiary basis on which to infer that the FBO should have suspended more certificates also 
in the case of producers from the other countries identified in the table, but did not".553 In Ukraine's 
view, even though it was for Russia to prove that the FBO should have suspended more certificates 
also in th e case of producers from other countries, the Panel did not require it to do so.554 Finally, 
Ukraine draws attention to the fact that the Panel repeatedly indicated in its analysis that there was 
not enough evidence to rule on the matter before it.555 Ukraine submits that the Panel should have 
sought information from relevant sources pursuant to Article  13 of the DSU in order to gather the 
information necessary to make an objective assessment of the matter before it.556  
5.224.   Russia requests us to uphold the Panel's findings with respect to the existence of the alleged 
systematic import prevention.557 Russia considers that the Panel did not err in its examination of the 
existence of the alleged systematic import prevention as an unwritten measure.558 Russia recall s 
that the Panel, after considering Ukraine's claims with respect to each of the individual components 
of the measure, only found the existence of inconsistency with respect to one out of three 
components. In Russia's view, even though the Panel had all th e reasons to stop its analysis there 
and find that the alleged measure did not exist, it went on to examine other arguments and evidence 
presented by Ukraine. Russia therefore disagrees with Ukraine that the Panel failed to examine 
information presented by  Ukraine in accordance with the established standard of review.559 In 
response to the importance of order of analysis asserted by Ukraine, Russia points out that neither 
Article  11 of the DSU nor WTO  jurisprudence requires panels to follow a particular seque nce of 
analysis.560 Russia asserts that, in any event, the Panel would have reached a negative conclusion 
as to the existence of the measure at issue, even if the Panel had followed the sequence in 
paragraph  7.946 of its Report.561 In addition, Russia points t o the Panel's finding that Ukraine failed 
to demonstrate how the three components operate as a single measure and form part of a 
coordinated effort to prevent the importation of Ukrainian railway products into Russia.562 Thus, in 
Russia's view, the Panel wou ld have lacked a basis for concluding that Ukraine made a prima  facie 
case with respect to the existence of the alleged systematic import prevention, even if the Panel had 
found all three components  of the measure to be inconsistent .563  
5.225.   Furthermore, regardi ng Ukraine's argument that the alleged systematic import prevention 
was part of a set of trade -restrictive measures adopted by Russia in response to Ukraine's 
negotiation and conclusion of the A ssociation Agreement, Russia submits that the Panel carefully 
examined the statements of Russia's officials provided by Ukraine and correctly concluded that the 
 
548 Ukraine's appellant's submission, para.  50 (referring to Panel  Report, para.  7.960).  
549 Ukraine's appellant's submission, paras.  51-52 (referring to Panel  Report, para.  7.960).  
550 Ukraine's appellant's submission, para.  51. 
551 Ukraine's appellant's submission, para.  54 (referring to Panel  Report, para s. 7.969 -7.972).  
552 Ukraine's appellant's submission, para.  54 (quoting Panel  Report, para.  7.970).  
553 Ukraine's appellant's submission, para.  55 (quoting Panel  Report, para.  7.970).  
554 Ukraine's appellant's submission, para.  55. 
555 Ukraine's appellant's submission, para.  56 (referring to Panel  Report, paras.  7.377, 7.480, 
7.521 -7.524, 7.675, 7.711, 7.960, 7.962, and 7.970).  
556 Ukraine's appellant's submission, paras.  56 and 58.  
557 Russia's appellee's submission, section 2.2.  
558 Russia's appellee's submission, sections 2.2.1.1 and 2.2.1.2.  
559 Russia's appellee's submission, para.  22. 
560 Russia's appellee's submission, para.  23. 
561 Russia's appellee's submission, para.  25. 
562 Russia's appellee's submission, para.  26 (referring to Panel  Report, paras.  7.990 -7.991).  
563 Russia's appellee's submission, para.  27. WT/DS499/AB/R  
 
- 75 - 
 
  presented evidence failed to demonstrate an "organized effort" on the part of Russia.564 Further, 
Russia observes that Ukraine referred to measures imposed by Russia on "other products" as 
evidence of Russia restricting the importation of Ukrainian "railway products".565 With respect to the 
allegedly high burden of proof the Panel placed on Ukraine, Russia points out that the allocation of 
the burden of proof is n ot to be determined on the basis of a comparison between the respective 
difficulties parties may encounter in collecting information to prove the case.566 Moreover, with 
respect to the Panel's conclusion that the differences in the number of certificates hel d, suspended, 
and applications rejected, concerning producers from different countries, fail to establish the 
existence of the alleged systematic import prevention, Russia submits that the Panel carefully 
reviewed the evidence but found no evidence to supp ort Ukraine's arguments.567  
5.226.   With respect to the burden of proof, Russia submits that Ukraine failed to establish that the 
Panel did not objectively assess the alleged systematic prevention.568 Russia submits that Ukraine 
failed to prove the existence of the first and second components of the alleged systematic 
prevention, namely , the suspension and rejection of applications.569 In Russia's view, it is clear from 
paragraph  7.960 of the Panel  Report that the Panel examined all the evidence submitted by the 
parties  and concluded that it was not persuaded that the applications unjustifiably rejected by the 
FBO were proof that the FBO used its powers with the aim or as part of a plan directed at preventing 
the importation of Ukrainian railway products into Russia.570 Russia further contends that Ukraine 
does not allege specific errors with respect to the Panel's conclusion in paragraph  7.965 of its Report 
that " the mere fact that the non -recognition requirement has been applied alongside the (for the 
most part) justified suspensions and rejections, which also had the effect of preventing imports of 
Ukrainian products, does not mean that these distinct measures in fact form a single, coherent 
measure with a common aim of preventing imports of Ukrainian products th rough any means 
possible ."571  
5.227.   Regarding the Panel's application of the burden of proof, Russia submits that the Panel 
examined all the evidence submitted by Ukraine and that it did not "consider that the differences in 
the number of certificates held, suspe nded, and applications rejected, concerning producers from 
different countries[,] establish[] the existence of the alleged systematic import prevention" .572 
According to Russia, if Ukraine wished to substantiate the allegation that there were indeed reasons 
for the FBO to suspend the certificates issued to third -country producers, it was up to Ukraine to 
substantiate such allegation, which it failed to do .573 Regarding Ukraine's allegation that the Panel 
failed to have recourse to Article  13 of the DSU, Russia contends that the Panel was precluded from 
using its authority under Article  13 in order "to rule in favour of a complaining party which has not 
established a prima facie case of inconsistency based on specific legal claims asserted by it".574 
Therefore, Rus sia submits that the Panel acted consistently with Article  11 of the DSU by abstaining 
from requesting information under Article  13 of the DSU.575 
5.228.   Finally, Russia submits that if the Appellate  Body were to agree with Ukraine's arguments 
and find that the Pan el erred under Article  11 of the DSU, the overall conclusion of the Panel 
regarding Ukraine's failure to demonstrate the existence of the alleged systematic prevention in 
paragraphs  7.993 -7.995 and 8.1.e of its Report nonetheless stands, because this concl usion was 
based on Panel findings that Ukraine did not appeal.576 In Russia's view, the Panel  Report confirms 
that after the examination of each of Ukraine's arguments and evidence, the Panel found no support 
for Ukraine's position as to the existence of the  alleged  systematic prevention .577 Regarding the 
Panel's conclusion in paragraph  7.965 of its Report, Russia reiterates its position that Ukraine does 
 
564 Russia's appellee's submission, para.  34 (referring to Panel  Report, paras.  7.973 -7.974).  
565 Russia's appellee's submission, para.  39.  
566 Russia's appellee's submission, para.  40 (quoting Appellate  Body Report, EC – Sardines , para.  281).  
567 Russia's appellee's submission, para.  45. 
568 Russia's appellee's submission, para.  85. 
569 Russia's appellee's submission, paras.  54-55 (referring to Panel  Report, paras.  7.595 and  7.960).  
570 Russia's appellee's submission, para.  62 (quoting Panel  Report, para.  7.960).  
571 Russia's appellee's submission, paras.  63-64. 
572 Russia's appellee's submission, para. 67 (quoting Panel  Report, para.  7.972).  
573 Russia's appellee's submission, para.  69. 
574 Russia's appellee's submission, para.  71 (quoting Appellate  Body Report, Japan  – Agricultural 
Products II , para.  129).  
575 Russia's appellee's submission, para.  72. 
576 Russia's appellee's submission, paras.  74 and 84.  
577 Russia's appellee's submission, para.  76. WT/DS499/AB/R  
 
- 76 - 
 
  not claim specific errors with respect to this conclusion and therefore agrees with the Panel as to the 
absence of indication that the combined effect of the individual measures is the reason for applying 
each of them .578 Furthermore, Russia submits that Ukraine does not appeal the Panel's conclusions 
in paragraphs  7.984, 7.987, and 7.988 in which the Panel made a factual finding that trade and 
other economic data did not support Ukraine's position on the existence of the alleged systematic 
import prevention .579  
5.5.3   Whether the Panel failed to make an objective assessment of the matter under 
Article  11 of the DSU  
5.229.   Ukraine takes issue with the Panel's allocation of the burden of proof and assessment of the 
evidence in its analysis of the existence and systematic nature of the alleged unwritten measure.580 
Specifically, Ukraine considers that the Panel erred in characte rizing the measure at issue as 
comprising only specific decisions suspending certificates, rejecting applications for new certificates, 
and not recognizing certificates from other CU countries that were separately challenged on an 
individual basis by Ukrai ne. Ukraine contends that the individual decisions were only part of the 
evidence of the unwritten measure, and that the Panel erred in finding that the existence of the 
alleged unwritten measure was conditional on the WTO -inconsistency of these decisions.  In Ukraine's 
view, this led the Panel to review the individual measures in isolation from one another and 
prevented it from assessing whether systematic import prevention existed on the basis of all 
evidence before it.581 
5.230.   We recall that, before the Panel, U kraine claimed that Russia maintains, since mid -2014, 
systematic prevention of importation of Ukrainian railway products by means of : (i) suspending valid 
certificates held by Ukrainian producers ; (ii) refusing to issue new certificates ; and (iii)  not 
recognizing certificates issued by other CU  countries, and that this practice is inconsistent with 
Russia's obligations under Articles  I:1, XI:1, and XIII:1 of the GATT  1994.582 The Panel noted that 
"to demonstrate the existence of an unwritten measure, a compla ining party must provide evidence 
demonstrating (a) that the measure is attributable to the responding party; (b) the precise content 
of the measure; and (c)  other elements arising from the manner in which the complaining party 
described or characterized t he measure." In the Panel's view, such other elements could include 
"demonstrating the specific nature of the measure, i.e., whether it is of general and prospective 
application or of a different nature" and "how the different components of the measure ope rate 
together as part of a single measure and how such single measure exists as distinct from its 
components".583 The Panel further observed that "a complaining party seeking to demonstrate the 
systematic nature of a measure must demonstrate that such measur e is aimed at achieving a 
particular policy or result and is done according to a system, plan, or organized method or effort."584 
5.231.   In its analysis, the Panel first turned to assess whether the instructions through which the 
FBO suspended valid certificates, t he decisions through which the FBO rejected applications for 
certificates, and the non -recognition requirement applied by Russia's authorities, which it had 
separately examined in the previous sections of its Report (suspensions, rejections, and 
non-recogn ition), were evidence of the existence of this measure and of its systematic nature.585 In 
this respect, the Panel found that "the mere fact that the non -recognition requirement has been 
applied alongside the (for the most part) justified suspensions and rej ections, which also had the 
effect of preventing imports of Ukrainian products, does not mean that these distinct measures in 
fact form a single, coherent measure with a common aim of preventing imports of Ukrainian products 
through any means possible."586 Turning to the additional evidence submitted by Ukraine, the Panel 
found that neither the figures demonstrating substantial repetition in the suspensions and rejections 
 
578 Russia's appellee's submission, para.  78 (referring to Panel  Report, para.  7.965).  
579 Russia's appellee's submission , paras.  80-83. 
580 Ukraine's appellant's submission, paras.  34-40 and 48 -55. 
581 Ukraine's appellant's submission, paras.  42-43.  
582 Panel  Report, para.  7.941 (referring to Ukraine's first written submission to the Panel, 
paras.  187-188).  
583 Panel  Report, para.  7.946 (referring to Appellate  Body Reports, Argentina – Import Measures , 
paras.  5.104 and 5.108; US – Zeroing (EC) , para.  198; Panel  Reports, Indonesia – Chicken , paras.  7.616 
and 7.656; Russia – Tariff Treatment , paras.  7.283, 7.338, and 7.341).  
584 Panel  Report, para.  7.947 (referring to Appellate  Body Reports, Argentina – Import Measures , 
para. 5.142; Panel  Report, Russia – Tariff Treatment , paras.  7.302 -7.311).  
585 Panel  Report, para.  7.957.  
586 Panel  Report, para.  7.965.  WT/DS499/AB/R  
 
- 77 - 
 
  of certificates, nor the media articles evidencing that the alleged systematic import pr evention was 
part of a set of trade -restrictive measures adopted by Russia, established the existence of a plan or 
organized effort to prevent importation.587 Finally, the Panel analysed certain import trade data that 
Ukraine claimed supported the existence of the alleged systematic import prevention.588 Overall, the 
Panel considered that Ukraine had failed to demonstrate that Russia systematically prevented the 
importation of Ukrainian railway products into Russia.589 
5.232.   At the outset, we recall that, in principle,  any act or omission attributable to a WTO  Member 
can be challenged as a measure under the WTO dispute settlement system.590 The measure at issue 
in WTO dispute settlement proceedings may include either "acts setting forth rules or norms that 
are intended to  have general and prospective application", such as legislation, or "particular acts 
applied only to a specific situation", such as an administrative decision to impose anti -dumping 
duties on certain imports.591 In US – Zeroing (EC) , the Appellate  Body recog nized that an "as such" 
challenge can, in principle, be brought against a measure that is not expressed in the form of a 
written document, and there is nothing in the covered agreements or in WTO jurisprudence to 
suggest that a measure must be in written f orm.592 The Appellate  Body emphasized, however, that 
"a panel must not lightly assume the existence of a 'rule or norm' constituting a measure of general 
and prospective application, especially when it is not expressed in the form of a written 
document."593  
5.233.   In Argentina – Import Measures , the Appellate  Body further elaborated on the standard for 
establishing the existence of an unwritten measure and in particular observed that "the constituent 
elements that must be substantiated with evidence and arguments in order to prove the existence 
of a measure challenged will be informed by how such measure is described or characterized by the 
complainant."594 In particular, the Appellate  Body considered that, depending on the characteristics 
of the measure challenged, oth er elements in addition to attribution to a WTO Member and precise 
content may need to be substantiated to prove its existence. For instance, a complainant challenging 
a single measure composed of several different instruments will normally need to provide  evidence 
of how the different components operate together as part of a single measure and how a single 
measure exists as distinct from its components.595 
5.234.   In contrast to a written measure, the existence of unwritten measures cannot be established 
by submitting to a panel the text of a legal instrument. Instead, the existence and content of an 
unwritten measure must be established based on other, often circum stantial, evidence and 
arguments. Moreover, the specific measure challenged and the way in which it is described or 
characterized by a complainant will inform the kind of evidence a complainant is required to submit 
and the elements that it must establish,  in order to determine the existence of the challenged 
measure. A complainant seeking to prove the existence of an unwritten measure will invariably be 
required to establish the attribution of that measure to a Member and its precise content. Moreover, 
additional elements may need to be established .596 For instance, in Argentina – Import Measures , 
the complainants challenged the existence of a single measure consisting of a combination of one or 
more of the five trade -related requirements (TRRs) in pursuance of a specific policy objective. 
 
587 Panel  Report, paras.  7.972 and 7.9 74. 
588 Panel  Report, para.  7.975.  
589 Panel  Report, para.  7.993.  
590 Appellate  Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  81. 
591 Appellate  Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  82. Thus, whereas a 
claim against a measure "as such" concerns a rule or norm intended to have general and prospective 
application, a claim against a measure "as applied" targets the application of a measure in specific instances.  
592 Appellate  Body Report, US – Zeroing (EC) , para.  194. 
593 Appellate  Body Report, US – Zeroing (EC) , para.  196. 
594 In US – Zeroing (EC) , the Appellate  Body explained that, when an unwritten measure is challenged 
"as such", the complainant must clearly establish that the alleged "rule or norm" is attributable to the 
responding Member, its precise content, and that it has general and prospective application. (Appellate  Body 
Report, US – Zeroing (EC) , para.  198) In Argentina – Import Measures , the Appellate  Body clarified that "the 
notion of measure of general and prospective application" cannot be considered as setting forth a general legal 
standard. Specifically, "[w]hen an unwritten measure that is not a rule or norm is challenged in WTO di spute 
settlement, a complainant need not demonstrate its existence based on the same criteria that apply when rules 
or norms of general and prospective application are challenged." (Appellate  Body Reports, Argentina – Import 
Measures , para.  5.107)  
595 Appell ate Body Reports, Argentina – Import Measures , para.  5.108.  
596 In this regard, panels need not "apply rigid legal standards or criteria … based on the nature of the 
challenge". (Appellate  Body Reports, Argentina – Import Measures , para.  5.110)  WT/DS499/AB/R  
 
- 78 - 
 
  Therefore, as part of its examination of the precise content of the TRRs measure, the panel was 
required to assess whether the measure was composed of the five individual elements identified by 
the complainants, and whether the individual TRRs applied and operated as part of a single measure 
in furtherance of an underlying policy of "managed trade" with the specific objectives of substituting 
imports and reducing trade deficits.597 
5.235.   The appropriate order of analysis in a given dispute will depend on the characteristics of the 
measure at issue, as described by the complainant, as well as the arguments and evidence on the 
record. It may also depend on which elements are the focus of contention between the disputing 
parties, and which, if any, are conceded or undisputed between the parties.598 In any event, panels 
enjoy a margin of discretion to structure their assessment as they see fit, provided they proceed "on 
the basis of a properly structured analysis"599, provide "reasoned and adequate explanations and 
coherent reasoning"600, and base their findings on a "sufficient evidentiary basis" .601 Accordingly, 
panels are afforded a certain degree of latitude to tailor the sequence and order of analysis, which, 
however, is informed by the  specific claims, measures, facts, and arguments at issue.602 Therefore, 
an appellant challenging the sequence and order of analysis adopted by a panel in a given case must 
demonstrate why, by following a particular sequence, the panel committed an error in the specific 
circumstances of the case at hand. It is not sufficient for an appellant merely to claim that a panel 
erred by deviating from a certain sequence and order of analysis in the abstract.603 
5.236.   With respect to Ukraine's argument that the Panel erred by  failing to make conclusions with 
regard to the existence of an unwritten measure before assessing specific elements of that 
measure604, we observe that the Panel in fact took note of the precise content of the alleged measure 
and listed its constituent elem ents, including Ukraine's characterization of the measure as "an 
overarching unwritten measure" that comprises several components and results in the "systematic 
prevention" of importation of Ukrainian products into Russia.605 Furthermore, it appears logical,  in 
light of the characteristics of the measure as described by Ukraine, that the Panel's subsequent 
analysis was focused on examining the existence of a single measure and its systematic nature. 
Thus, in the circumstances of this case, as part of its asse ssment of the existence  of the unwritten 
measure, the Panel had to examine evidence relating  to the constituent components of the measure, 
as well as to the way in which the different components interact, in order to achieve a particular 
objective.606  
5.237.   Next,  we turn to review the Panel's analysis regarding the existence of the alleged unwritten 
measure at issue. As noted, the Panel separately assessed the instructions suspending certificates, 
the decisions rejecting applications for certificates, and the non -recognition requirement applied by 
Russia's authorities, which Ukraine had challenged on an individual basis and which the Panel had 
separately examined in the prior sections of its Report.607 As the Panel acknowledged, the specific 
suspension instructions a nd rejection decisions were only part of the instances of suspensions and 
rejections on which Ukraine relied as evidence demonstrating the existence of an unwritten 
measure.608 Despite this fact, the Panel considered it necessary to separately examine the 
suspensions, rejections, and non -recognitions challenged by Ukraine on an individual basis. In doing 
so, the Panel focused its assessment on whether these three elements of the  alleged measure had 
already been found to be inconsistent with Article s 5.1.1 and 5.1.2 of the TBT  Agreement in the 
Panel's prior analysis. Thus, the Panel concluded that "the fact that one of the three elements of the 
alleged systematic import prevention ", namely , the non -recognition of certificates issued in other 
 
597 Appellate  Body Reports, Argentina – Import Measures , paras.  5.124 -5.126.  
598 See, for Article  2.2 of the TBT  Agreement, Appellate  Body Reports, US – COOL  
(Article  21.5 – Canada and Mexico) , para.  5.205.  
599 Appellate  Body Report, Colombia – Textiles , para.  5.20 (quoting  Appellate  Body Report, 
Canada  – Wheat Exports and Grain Imports , para.  127).  
600 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  713. See also e.g. 
Appellate  Body Report, US – Upland Cotton (Article  21.5 – Brazil) , fn 618 to para.  293. 
601 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  713. See also e.g. 
Appellate  Body Report,  US – Carbon Steel , para.  142. 
602 Appellate  Body Reports, US – COOL (Article  21.5 – Canada and Mexico) , para.  5.206 (referring to 
Appellate  Body Reports, Brazil – Retreaded Tyres , para.  145; EC – Seal Products , para.  5.211 ). 
603 Appellate  Body Reports, US – COOL (Article  21.5 – Canada and Mexico) , para.  5.206.  
604 Ukraine's appellant's submission, para.  36. 
605 Panel  Report, para.  7.956.  
606 See Appellate  Body Reports, Argentina – Import Measures , para.  5.108.  
607 Panel  Report, para.  7.958.  
608 Panel  Report, fn  742 to para.  7.957.  WT/DS499/AB/R  
 
- 79 - 
 
  CU countries, "unjustifiably restricts access to the Russian market is not sufficient to demonstrate 
the existence of systematic prevention of imports of Ukrainian products as an independent 
measure."609 The Panel also affirmed that "it is only if the circumstances justifying these decisions 
disappeared and they were nonetheless maintained or such decisions were nonetheless adopted in 
respect of new applications, that the issue would arise whether  those measures form part of 
comprehensive systematic import prevention that covers both the recognition of certificates issued 
in other CU countries and issuance of certificates in Russia."610 In this regard, Ukraine argues that 
the Panel examined the indiv idual components of the alleged unwritten measure in isolation from 
one another and did not assess the existence of systematic import prevention on the basis of all 
evidence before it.611 The question therefore arises whether, in examining the existence of t he 
alleged systematic prevention measure based on the consistency of its components with the 
TBT Agreement, the Panel properly assessed the existence of the overarching measure as an issue 
separate from the consistency of its elements with the covered agre ements.  
5.238.   We observe in this regard that Ukraine's own description of the measure presupposed the 
need to focus on the rationale underlying the individual instances of suspensions, rejections, and 
non-recognition of certificates. Thus, Ukraine argued that "U krainian producers have been denied, 
or have been unable to use, certificates for reasons other than the lack of conformity  with the 
relevant technical regulations."612 In Ukraine's view, Russia, "through an organized effort ", "put in 
place all means possibl e to prevent imports  of Ukrainian railway products into Russia".613 Thus, the 
content of the measure, as described by Ukraine, required a finding that the individual elements of 
the measure are parts of an organized effort or policy with the objective of " systematic  import 
prevention ", as opposed to separate instances of instructions and decisions taken for reasons relating 
to the possibility of assessing conformity with the relevant technical regulations. The discussion 
before the Panel focused precisely on whether the suspensions and rejections were made for reasons 
related to achieving positive assurance of conformity, or instead for reasons related to import 
prevention. Thus, Russia argued that the reason for suspending and rejecting certificates of 
Ukrain ian producers was that the requirements of the relevant Russian technical regulations were 
not satisfied, i.e. it was impossible to carry out the inspection control in full due to the security 
situation in Ukraine, and therefore there was no "organised eff ort" by Russia to prevent imports from 
Ukraine.614 By contrast, Ukraine contended that, as demonstrated by the inconsistency of the 
instructions and decisions challenged on an individual basis, the objective of the suspensions and 
rejections was not to verif y conformity of Ukrainian railway products but to prevent imports of such 
products into Russia.615  
5.239.   We recall that "a complainant challenging a single measure composed of several different 
instruments will normally need to provide evidence of how the differe nt components operate 
together as part of a single measure and how a single measure exists as distinct from its 
components."616 In the present case, it was therefore Ukraine's burden to establish that the separate 
instances of suspensions, rejections, and no n-recognition functioned together and formed a single 
overarching measure, distinct from its parts, in pursuance of an import prevention policy.  
5.240.   In this context, it appears to us that the rationale behind the suspensions and rejections 
constituted an impo rtant factor for determining whether the components of the alleged overarching 
 
609 Panel  Report, para.  7.964.  
610 Panel  Report, para.  7.964.  
611 Ukraine's appellant's submission, para.  43. 
612 Panel  Repor t, para.  7.950 (referring to Ukraine's first written submission to the Panel, para.  147; 
second written submission to the Panel, paras.  13 and 18; opening statement at the second Panel meeting, 
paras.  30 and 38 -39; response to Panel question No.  143). (emp hasis added)  
613 Panel  Report, para.  7.951 (referring to Ukraine's first written submission to the Panel, 
paras.  132-141 and 150 -159; second written submission to the Panel, paras.  19-20 and 38 -56; opening 
statement at the second Panel meeting, para.  40). (e mphasis added)  
614 Russia's first written submission to the Panel, paras.  22-24; second written submission to the Panel, 
paras.  34-35. 
615 Ukraine's second written submission to the Panel, para.  20. 
616 Appellate  Body Reports, Argentina – Import Measures , para.  5.108 (referring to Panel  Reports, 
US – COOL , para.  7.50). In Argentina – Import Measures , the panel found that "the combined application and 
operation of the individual TRRs is an important part of the TRRs measure with distinct content", "the content 
of the single measure consists of the combined operation of the individual TRRs as one of the tools that 
Argentina uses to implement the 'managed trade' policy", and "[t]his content is distinct both from that of each 
TRR – which, taken individually, may not b e apt to implement the 'managed trade' policy – and from the 
content of the 'managed trade' policy itself." (Ibid., para.  5.130)  WT/DS499/AB/R  
 
- 80 - 
 
  measure operated together as part of a single measure. Specifically, this rationale related to the 
impossibility for the FBO to assess conformity of Ukrainian railway products w ith the relevant Russian 
technical regulations due to the security situation in Ukraine, and thus to the absence of a 
comparable situation under Article  5.1.1 of the TBT  Agreement. If this were the case, there would 
be no common policy or plan connecting t he various suspensions and rejections, such that they 
operate together as part of one measure, and thus no proof that "the FBO used its powers with the 
aim or as part of a plan directed at preventing the importation of Ukrainian railway products into 
Russi a."617 Instead, each of these individual measures would be based on a separate and 
independent rationale, namely , the impossibility, in each particular instance, to complete the 
required steps in the conformity assessment procedure. This is how we understand  the Panel's 
statement that "the fact that one of the three elements of the alleged systematic import 
prevention  … unjustifiably restricts access to the Russian market is not sufficient to demonstrate the 
existence of systematic prevention of imports of Uk rainian products as an independent measure."618 
We consider that the Panel's language referring to the consistency or inconsistency of the 
suspensions and rejections was somewhat imprecise. However, as we see it, the Panel was in fact 
concerned with the rati onale behind such decisions, which would reveal the relationship between 
them and thus the existence of a common plan. By contrast, a finding of inconsistency under 
Article  5.1.1 would imply that the concerns about the security situation in Ukraine and the  safety for 
FBO inspectors did not constitute a valid justification for the suspensions and rejections at issue. 
The question would thus arise as to whether there was a different rationale behind the instructions 
suspending certificates and decisions rejec ting applications for new certificates, including the 
rationale of preventing imports. As the Panel observed, "it is only if the circumstances justifying 
these decisions disappeared and they were nonetheless maintained or such decisions were 
nonetheless ad opted in respect of new applications, that the issue would arise whether those 
measures form part of a comprehensive systematic import prevention that covers both the 
recognition of certificates issued in other CU countries and issuance of certificates in Russia."619 
Thus, while it may seem that the Panel's reasoning does not properly distinguish between existence 
and consistency of the alleged measure, we consider that in fact the Panel considered the consistency 
of components of the measures only insofar as  the justification  underlying their consistency would 
lead to the conclusion that these decisions were taken independently from one another and not as 
part of a common plan . In turn, finding no evidence of a common plan or organized effort to prevent 
the importation into Russia of Ukrainian railway products would suggest no overarching unwritten 
measure of systematic import prevention existed in the present case.  
5.241.   When the Panel's focus on the consistency or inconsistency of the suspensions and rejections 
challenged on an individual basis with certain provisions of the TBT  Agreement is seen in context of 
the broader objective of its analysis, it is clear that the rationale behind the enacting of the individual 
measures was crucial for finding the existence o f "a single, coherent measure with a common aim 
of preventing imports of Ukrainian products through any means possible".620 Specifically, the fact 
that this rationale related to the absence of conditions in Ukraine to conduct part of the conformity 
assessmen t procedure spoke against Ukraine's argument that there was a common import 
prevention objective behind these individual measures. This also explains the Panel's initial focus on 
the challenged measures only, for which there was already evidence on the rec ord relating to the 
rationale for taking them. In the same vein, by stating that the substantial repetition in the number 
of suspensions was not probative of the measure's existence due to the absence of evidence 
regarding the rationale behind such suspens ions, the Panel in our view considered that such statistics 
themselves did not reveal the existence of an aim to achieve a particular policy or result, thereby 
proving the existence and systematic nature of an unwritten overarching measure.  
5.242.   Therefore, in our view, the Panel's focus on the rationale underlying the instructions and 
decisions formed an important part of its analysis as to the existence of the unwritten measure in 
the particular circumstances of the case. Moreover, we note that the alleged mea sure, as described 
by Ukraine, contains in itself an element of inconsistency. Thus, if the suspensions, rejections, and 
non-recognition operate together with an underlying "systematic import prevention" rationale, such 
an overarching "import prevention" m easure would very likely be found to be inconsistent under the 
GATT  1994. We recall that determining the existence of an alleged unwritten measure and assessing 
the consistency of this measure or its components with the covered agreements remain separate 
 
617 Panel  Report, para.  7.960.  
618 Panel  Report, para.  7.964.  
619 Panel  Report, para.  7.964.  
620 Panel  Report, para.  7.965.  WT/DS499/AB/R  
 
- 81 - 
 
  steps. At the same time, the specific measure challenged and the way in which it is described or 
characterized by a complainant will inform the kind of evidence a complainant is required to submit 
and the elements that it must establish, in order to determi ne the existence of the challenged 
measure. In the circumstances of the present case, because Ukraine's description of the measure 
incorporated the term "import prevention" and because most individual components of the measure 
were found by the Panel to ha ve a rationale different from "import prevention", the Panel's task of 
assessing the question of existence of the measure separately from the question of its consistency 
was rendered particularly difficult. Moreover, as noted above, it was not the Panel's logic that, 
because the components of the measure were not inconsistent with the TBT  Agreement, the 
overarching measure could not exist. Rather, in the presence of valid justifications explaining why 
the individual suspensions and rejections were made and relating to concerns about the safety of 
FBO inspectors, there was no basis for a finding that the different parts of the alleged measure 
operated together as a single measure distinct from its components. For instance, even if all 
certificates of Ukrainia n railway equipment were suspended or rejected due to the impossibility to 
conduct off -site inspections , that would not translate into an organized effort to prevent importation, 
unless the impossibility to conduct such inspections was only a pretext and a different unifying 
rationale existed. In other words, the Panel simply did not consider that Ukraine pr esented sufficient 
evidence revealing the existence of a common plan aimed at import prevention behind the 
components of the alleged overarching measure.  
5.243.   Moreover, while Ukraine relied extensively on the panel and the Appellate  Body's rationale 
for determ ining the existence of an unwritten measure in Argentina – Import Measures , the alleged 
measure at issue in the present case is different. Unlike the European Union in Argentina  – Import 
Measures , here Ukraine challenged part of the unwritten measure's com ponents on an individual 
basis. In this context, the task of the Panel was to determine whether an interaction existed between 
these individual components, such that they in combination functioned in a manner distinct from 
their individual operation. Thus,  the Panel's understanding of the content and operation of the 
components on an individual basis, including the rationale underlying their enacting, formed part of 
its analysis as to whether the different components operated together as a single measure ai med at 
achieving a particular policy. In Argentina – Import Measures , there was also "extensive evidence 
on the [p]anel record showing that the TRRs measure implements the 'managed trade' policy, and 
that this policy has been announced in public statements  and speeches and on government websites 
by high -ranking Argentine Government officials, including the President, the Minister of Industry, 
and the Secretary of Trade".621 This evidence suggested that "these TRRs are interlinked and operate 
together as part of a single measure and will continue to be imposed in the future unless and until 
the policy is repealed or modified."622 Differently, in the present case, the Panel found that the 
evidence presented by Ukraine regarding the "set of trade restrictive measur es" did not establish 
the existence of an underlying policy behind the suspensions and rejections. In particular, the Panel 
considered that "[t]he media articles that Ukraine has presented point to tensions in the bilateral 
relationship in connection with the negotiation and conclusion by Ukraine of [the] Association 
Agreement", and "refer to trade action that Russian authorities might take or did take against 
Ukraine in response".623 However, ultimately, the evidence did not demonstrate that "Russia adopted 
a plan or decided to embark on an organized effort to prevent the importation into Russia of 
Ukrainian products in general or Ukrainian railway products in particular", and "even if 
trade -restrictive measures were taken with regard to some Ukrainian produc ts, this does not 
necessarily mean that such measures were taken also with regard to Ukrainian railway products."624  
5.244.   In this regard, Ukraine submits that  the Panel  allocated an excessive burden of proof on 
Ukraine in establishing the existence of the measur e, in particular due to its unwritten nature.625 
Ukraine relies on the panel's findings in Argentina – Import Measures , in which the panel disagreed 
with Argentina's contention that journalistic material cannot be "considered to have any probative  
 
621 Appellate  Body Reports, Argentina – Import Measures , para.  5.131.  
622 Appellate  Body Reports, Argentina – Import Measures , para.  5.131 (referring to Panel  Reports, 
Argentina – Import Measures , paras.  6.162 and 6.230).  
623 Panel  Report, para.  7.974.  
624 Panel  Report, para.  7.974.  
625 Ukraine's appellant's submission, para.  40. WT/DS499/AB/R  
 
- 82 - 
 
  value" in  ascertaining the existence of an unwritten measure.626 However, as we see it, rather than 
questioning the credibility of the media articles provided by Ukraine as a source of information, the 
Panel did not consider them specific enough to establish the exis tence and systematic nature of an 
alleged systematic prevention measure applicable to Ukrainian railway equipment.  
5.245.   The Panel's conclusion with respect to the media articles presented by Ukraine also 
demonstrates that the Panel's finding as to the existenc e of the alleged unwritten measure was not 
based only on its assessment of the rationale behind the suspensions and rejections. Furthermore, 
the Panel analysed certain import trade data which, in Ukraine's view, supported the existence of 
the alleged syste matic import prevention.627 The Panel concluded that "[t]he evidence does not 
demonstrate that the cause of the decrease in Ukraine's imports and import share in Russia was 
more likely than not the alleged existence of a systematic prevention of imports by R ussia", and that 
"there is evidence on record suggesting that there are other causes that could explain the decrease 
of imports of Ukrainian railway products into Russia."628 On appeal, Ukraine does not take issue with 
this part of the Panel's analysis and c onclusions, which was also independent from the Panel's 
assessment of the rationale behind the suspensions and rejections.  
5.246.   Thus, in making its ultimate finding that Ukraine failed to demonstrate that Russia 
systematically prevented the importation of Ukra inian railway products into Russia, the Panel relied 
on the following conclusions:  
[T]he evidence on record does not establish that the three elements  of the alleged 
systematic import prevention (suspension of certificates, rejection of certificates, and 
the general non -recognition of certificates issued in other CU  countries) have been 
designed, structured, or operated in combination so as to constitut e a separate measure  
with the aim of systematically preventing imports of Ukrainian railway products into 
Russia.  
Moreover, the evidence does not establish that those elements form part of a plan or 
coordinated effort directed at attaining the aim  of prev enting the importation of 
Ukrainian railway products into Russia.  
Finally, the trade and other economic data submitted by Ukraine also does not establish 
the existence of the alleged systematic import prevention . The evidence does not 
demonstrate that the  cause of the decrease in Ukraine's imports and import share in 
Russia was more likely than not the alleged existence of a systematic prevention of 
imports by Russia. Rather, we consider that there is evidence on record suggesting that 
there are other caus es that could explain the decrease of imports of Ukrainian railway 
products into Russia.629 
5.247.   In examining the design, structure, and operation of the three elements of the alleged 
measure, including Ukraine's argument as to the substantial repetition of suspe nsions and rejections, 
the Panel focused on the existence of evidence regarding the rationale behind the suspensions of 
certificates, rejections of applications for new certificates, and the non -recognition requirement. In 
this respect, we took the view th at it was not unreasonable for the Panel to rely on such evidence in 
determining the existence of a common policy or plan of import prevention connecting the various 
components of the alleged measure, as opposed to a finding that each of those components w as 
based on the impossibility to complete the required steps in the conformity assessment procedure. 
Moreover, as noted, the Panel's ultimate finding did not rely only on that logic. Notably, the 
assessment of Ukraine's argument about the "set of trade res trictive measures", as well as the 
 
626 Ukraine's appellant's submission, para.  41 (quoting Panel  Reports, Argentina – Import Measures , 
paras.  6.70-6.71). Ukraine highlights the panel's statements that "[n]ewspapers or magazine articles … can be 
useful sources of information, particularly when dealing with unwritten measures and when corroborating facts 
asserted through other forms of evidence", and that "[a] panel must assess the credibility and persuasiveness 
of newspa pers or magazine articles submitted as evidence, taking into account that the articles may reflect 
personal opinions, and assess the information contained in those articles contrasting it with the other evidence 
on the record." (Ibid.)  
627 Panel  Report, para s. 7.975 -7.988.  
628 Panel  Report, para.  7.992.  
629 Panel  Report, paras.  7.990 -7.992. (emphasis added)  WT/DS499/AB/R  
 
- 83 - 
 
  import trade data submitted by Ukraine, also led the Panel to conclude that there was no sufficient 
evidence demonstrating the existence of the alleged systematic import prevention.  
5.248.   Finally, we recall that, in reviewing a  panel's assessment of the measure at issue, the 
Appellate  Body "will not lightly interfere" with the panel's factual findings, including those concerning 
"how a municipal law has been applied, the opinions of experts, administrative practice, or 
pronounce ments of domestic courts".630 Instead, for a claim under Article  11 to succeed, the 
Appellate  Body must be satisfied that the panel "has exceeded its authority as trier of facts".631 In 
the present case, the Panel thoroughly examined both parties' evidence, as sessed the credibility of 
that evidence, and reached its findings on this basis. For its part, Ukraine does not explain how a 
different approach by the Panel to examining the evidence on the record would have led to a different 
conclusion.  
5.249.   In sum, given t he characteristics of the alleged unwritten measure, as presented by Ukraine, 
and the Panel's assessment of the evidence on the record, we do not consider that the Panel erred 
in its objective assessment of the matter before it under Article  11 of the DSU in finding that Ukraine 
failed to demonstrate that Russia systematically prevented the importation of Ukrainian railway 
products into Russia.  
5.5.4   Conclusion  
5.250.   The Panel properly considered whether the individual components of the alleged unwritten 
measure form part of a common plan to prevent imports of Ukrainian products into Russia. The Panel 
also did not err in taking into consideration the rationale underlying these individual suspensions 
and rejections.  
5.251.   We therefore find that Ukraine has not established th at the Panel failed to make an objective 
assessment of the matter before it under Article  11 of the DSU in finding that Ukraine failed to 
demonstrate that Russia systematically prevented the importation of Ukrainian railway products into 
Russia.  
6  FINDINGS A ND CONCLUSIONS  
6.1.  For the reasons set out in this Report, the Appellate  Body makes the following findings and 
conclusions:  
6.1  The Panel's preliminary ruling  
6.2.  Russia has not established that the Panel erred in determining the scope of its terms of 
reference in this dispute.  
a. We therefore uphold  the Panel's finding , in paragraphs 8.1.a.i, 8.1.d.iv, and  8.1.d.v of the 
Panel  Report , that Russia has failed to establ ish that Ukraine's panel request is inconsistent 
with Article  6.2 of the DSU.  
6.2  The third measure as a "general" non -recognition requirement  
6.3.  Russia has not established that the Panel acted inconsistently with Article  11 of the DSU in 
finding that the third measure is of a " general " character and flows from CU Technical 
Regulation  001/2011 .  
a. We therefore uphold  the Panel's finding , in paragraph  7.861 of the Panel Report, that the 
third measure as a general non -recognition requirement, which the relevant Russi an 
 
630 Appellate  Body Report, China – Publications and Audiovisual Products , para.  177. See also e.g. 
Appellate  Body Reports, US – Wheat Gluten , para.  151; US – Carbon Steel , para.  142; US – Upland Cotton , 
para. 399. 
631 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  713. See also e.g. 
Appellate  Body Report, US – Wheat Gluten , para.  151. WT/DS499/AB/R  
 
- 84 - 
 
  authorities considered to flow from CU  Technical Regulation  001/2011, had been 
demonstrated to exist.  
6.3  The third  measure as a single measure  
6.4.  Russia has not established that Ukraine failed to meet its prima facie  burden to establish the 
existence of the third measure as a single measure.  
a. We therefore uphold  the Panel's finding , in paragraph  7.861 of the Panel Report, that the 
third measure had been demonstrated to exist.  
6.4  The third measure and the Panel's terms o f reference  
6.5.  Russia's claim regarding the terms of reference concerning the third measure is based on the 
premise that the Panel erred in its preliminary ruling. We have rejected that allegation of error and 
upheld the Panel's preliminary ruling.  
a. Consequen tly, we uphold  the Panel's finding , in paragraph s 7.823 and 8.1.d.i of the 
Panel  Report , that the non -recognition requirement based on the local production 
condition is properly before the Panel.  
6.5  The third measure and the local registration condition  
6.6.  The Panel's statements challenged by Russia as constituting "findings" concerning the local 
registration condition were either merely descriptive statements or concerned the third measure 
within the Panel's terms of reference.  
a. Consequently, we find that Russia  has failed to establish that the Panel acted inconsistently 
with Article  11 of the DSU by continuing to make findings with respect to a matter that 
was not within its terms of reference.  
6.6  Article  5.1.1 of the TBT  Agreement  
6.7.  Under Article  5.1.1 of the TBT  Agreement , the assessment of whether access is granted under 
conditions no less favourable "in a comparable situation" should focus on factors having a bearing 
on the conditions for granting access to conformity assessment to suppliers of like products and t he 
ability of the regulating Member to ensure compliance with the requirements in the underlying 
technical regulation or standard. Thus, factors relevant to the inquiry of whether a "comparable 
situation" exists have to affect the specific suppliers to whi ch the conditions for access to conformity 
assessment granted by the importing Member relate.  
6.8.  We consider that the Panel did not err in its interpretation of the phrase "in a comparable 
situation" in Article  5.1.1 of the TBT  Agreement. However, i n examinin g factors relevant for 
establishing the existence of a "comparable situation" in the particular circumstances of this case, 
the Panel relied too much on information concerning the security situation in Ukraine generally, and 
did not focus sufficiently on a spects specific to the suppliers who are claimed to have been granted 
access under less favourable conditions or to the location of the suppliers' facilities. We therefore 
find that the Panel erred in its application of Article  5.1.1 of the TBT  Agreement t o the facts of the 
present case in finding that, between April 2014 and December 2016, Ukrainian suppliers of railway 
products were denied no less favourable access in a situation that was not comparable to the 
situation in which Russia granted access to s uppliers of Russian railway products and suppliers of 
railway products from other countries. For the same reasons, we find that the Panel erred in its 
application of Article  5.1.1 of the TBT  Agreement to the facts of the present case in finding that less 
favourable access conditions were granted to Ukrainian suppliers of railway products in a situation 
that was not comparable also in the context of the two decisions through which the FBO rejected 
applications submitted by Ukrainian suppliers under CU  Techni cal Regulation  001/2011 
(i.e. decisions 1 and 2).  
a. Consequently, we reverse  the Panel's finding , in paragraph s 7.394 and 8.1.b.i of the Panel 
Report , that Ukraine failed to establish, with respect to each of the 14  challenged