WT/DS518/R/Add.1  
 
6 November  2018 
(18-6911) Page: 1/75 
  Original: English  
 
  
INDIA – CERTAIN MEAS URES ON IMPORTS OF I RON  
AND STEEL PRODUCTS  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS518/R . 
 
 
_______________  
 
 WT/DS518/R/Add.1  
 
- 2 - 
 
  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES O F THE PANEL AND INTE RIM REVIEW  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Interim Review  9 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 First i ntegrated executive summary of the arguments of Japan  21 
Annex  B-2 Second i ntegrated executive summary of the arguments of Japan  31 
Annex B -3 First i ntegrated executive summary of the arguments of India 41 
Annex B -4 Second i ntegrated executive summary of the arguments of India 53 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated execut ive summary of the arguments of Australia  65 
Annex  C-2 Integrated executive summary of the arguments of the European Union  68 
Annex  C-3 Integrated executive summary of the arguments of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen , and Matsu  70 
Annex C -4 Integrated executive summary of the arguments of Ukraine  72 
Annex C -5 Integrated execut ive summary of the arguments of the United States  73 
 
 
 
 
 WT/DS518/R/Add.1  
 
- 3 - 
 
  ANNEX A  
WORKING PROCEDURES O F THE PANEL  AND INTERIM REVIEW  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Interim Review  9 
 
 WT/DS518/R/Add.1  
 
- 4 - 
 
  ANNEX A -1 
WORKING PROCEDURES O F THE PANEL  
Adopted on 10 October 2017  
 
1.  In its proceedings, the Panel shall follow the relevant provisions of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (DSU) . In addition, the following Working 
Procedures shall apply.  
 
General  
 
2.  The delib erations of the Panel and the documents submitted to it shall be kept confidential . 
Nothing in the DSU or in these Working Procedures preclude a party to the dispute (hereafter "party") 
from disclosing statements of its own positions to the public . Members  shall treat as confidential 
information submitted to the Panel by another Member which the submitting Member has designated 
as confidential . Where a party submits a confidential version of its written submissions to the Panel, 
it shall also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that could be disclosed to the public . Upon indication from either party 
that it shall provide information that requires protection additional to that provided for under these 
Working Procedures, the Panel may, after consultation with the parties, adopt appropriate additional 
procedures.  
 
3.  The Panel shall meet in closed session . The parties, and Members having notified their interest 
in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU (hereafter 
"third parties "), shall be present at the meetings only when invited by the Panel to appear before it.  
 
4.  Each party and third party has the right to determine the composition of its own delegation when 
meeting with the Panel . Each party and third party shall have the responsibility for all members of 
its own delegation and shall ensure that each member of such delegation acts in accordance with 
the DSU and these Working Procedures, particularly with regard to the confidentiality of the 
proceedings.  
 
Submissions  
 
5.  Before the first substantive meeting of the Panel with the parties, each party shall submit a 
written submission in which it presents the facts of the case and its arguments, in accordance with 
the timetable adopted by the Panel . Each party shall also submit to the Panel, prior to the 
second  substantive meeting of the Panel, a written rebu ttal, in accordance with the timetable 
adopted by the Panel.  
 
6.  A party shall submit any request for a preliminary ruling at the earliest possible opportunity and 
in any event no later than in its first written submission to the Panel . If Japan  requests such a ruling, 
India shall submit its response to the request in its first written submission . If India requests such a 
ruling, Japan  shall submit its response to the request prior to the first substantive meeting of the 
Panel, at a time to be determined b y the Panel in light of the request . Exceptions to this procedure 
shall be granted upon a showing of good cause.  
 
7.  Each party shall submit all evidence to the Panel no later than during the first substantive 
meeting, except with respect to evidence nece ssary for purposes of rebuttal, answers to questions 
or comments on answers provided by the other party . Exceptions to this procedure shall be granted 
upon a showing of good cause . Where such exception has been granted, the Panel shall accord the 
other par ty a period of time for comment, as appropriate, on any new evidence submitted after the 
first substantive meeting.  
 
8.  Where the original language of exhibits is not a WTO working language, the submitting party or 
third party shall submit a translation o f such exhibits into the WTO working language of the 
submission at the same time . The Panel may grant reasonable extensions of time for the translation 
of such exhibits upon a showing of good cause . Any objection as to the accuracy of a translation 
should be raised promptly in writing, no later than the next filing or meeting (whichever occurs 
earlier) following the submission which contains the translation in question . The Panel may grant WT/DS518/R/Add.1  
 
- 5 - 
 
  exceptions to this procedure upon a showing of good cause . Any objec tion shall be accompanied by 
a detailed explanation of the grounds of objection and an alternative translation . Should a party 
become aware of any inaccuracies in the translations of the exhibits submitted by that party, it shall 
inform the Panel and the o ther party promptly, and provide a new translation within a deadline to 
be determined by the Panel.  
 
9.  In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided), to the extent that it is practical to do so.  
 
10.  To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number it s exhibits throughout the course 
of the dispute , indicating the submitting Member and the number of each exhibit on its cover page . 
For example, exhibits submitted by Japan  could be numbered JPN-1, JPN-2, etc . If the last exhibit 
in connection with the first submission was numbered JPN-5, the first exhibit of the next submission 
thus would be numbered JPN-6. 
 
Questions  
 
11.  The Panel may at any time pose questions to the parties and third parties, orally or in writing, 
including prior to each substantive meeting.  
 
Substantive meetings  
 
12.  Each party shall provide to the Panel the list of members of its delegation in advance of each 
meeting with the Panel and no later than 12h00 (noon) the previous working day . 
 
13.  The first substantive meeting of the Panel with the parties shall be conducted as follows:  
 
a. The Panel shall invite Japan  to make an opening statement to present its case first . 
Subsequently, the Panel shall invite India to present its point of v iew. Before each party 
takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its statement . In the event that interpretation is needed, 
each party shall provide additional copies for the int erpreters, through the Panel Secretary . 
Each party shall make available to the Panel and the other party the final version of its 
opening statement as well as its closing statement, if any, preferably at the end of the 
meeting, and in any event no later th an 17h00 on the first working day following the 
meeting.  
 
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through the Panel . Each party shall then 
have an opportunity to answer these questions orally . Each party shall send in writing, 
within a timeframe to be determined by the Panel, any questions to the other party to 
which it wishes to receive a response in writing . Each party shall be invited to respond in 
writing to  the other party 's written questions within a deadline to be determined by the 
Panel.  
 
c. The Panel may subsequently pose questions to the parties . Each party shall then have an 
opportunity to answer these questions orally . The Panel shall send in writing,  within a 
timeframe to be determined by it, any questions to the parties to which it wishes to receive 
a response in writing . Each party shall be invited to respond in writing to such questions 
within a deadline to be determined by the Panel.  
 
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Japan  presenting its statement first .  
 
14.  The second substantive meeting of the Panel with the parties shall be conducted as follows:  
 
a. The Panel shall ask India if it wishes to avail itself of the right to present its case first . If 
so, the Panel shall invite India to present its opening statement, followed by Japan. If India 
chooses not to avail itself of that right, the Panel shall invite Japan  to present its opening 
statement first . Before each party takes the floor, it shall provide the Panel and other WT/DS518/R/Add.1  
 
- 6 - 
 
  participants at the meeting with a provisional written version of its st atement . In the event 
that interpretation is needed, each party shall provide additional copies for the 
interpreters, through the Panel Secretary . Each party shall make available to the Panel 
and the other party the final version of its opening statement a s well as its closing 
statement, if any, preferably at the end of the meeting, and in any event no later than 
17h00 of the first working day following the meeting.  
 
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through the Panel . Each party shall then 
have an opportunity to answer these questions orally . Each party shall send in writing, 
within a timeframe to be determined by the Panel, any questions to the other part y to 
which it wishes to receive a response in writing . Each party shall be invited to respond in 
writing to the other party 's written questions within a deadline to be determined by the 
Panel.  
 
c. The Panel may subsequently pose questions to the parties . Each party shall then have an 
opportunity to answer these questions orally . The Panel shall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it wishes to receive 
a response in writing . Each party shall be inv ited to respond in writing to such questions 
within a deadline to be determined by the Panel.  
 
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the party that presented its o pening statement 
first, presenting its closing statement first .  
 
Third parties  
 
15.  The Panel shall invite each third party to transmit to the Panel a written submission prior to the 
first substantive meeting of the Panel with the parties, in accordance with the timetable adopted by 
the Panel.  
 
16.  Each third party shall also be invited to present its views orally  during a session of this 
first substantive meeting, set aside for that purpose . Each third party shall provide to the Panel the 
list of member s of its delegation in advance of this session and no later than 12h00 (noon) the 
previous working day.  
 
17.  The third -party session shall be conducted as follows:  
 
a. All third parties may be present during the entirety of this session.  
 
b. The Panel shall first hear the arguments of the third parties in alphabetical order . 
Third parties present at the third -party session and intending to present their views orally 
at that session, shall provide the Panel, the parties and other third -parties with provi sional 
written versions of their statements before they take the floor . Third parties shall make 
available to the Panel, the parties and other third parties the final versions of their 
statements, preferably at the end of the session, and in any event no l ater than 17h00 of 
the first working day following the session.  
 
c. After the third parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification on any 
matter raised i n the third parties ' submissions or statements . Each party shall send in 
writing, within a timeframe to be determined by the Panel, any questions to a third party 
to which it wishes to receive a response in writing.  
 
d. The Panel may subsequently pose ques tions to the third parties . Each third party shall 
then have an opportunity to answer these questions orally . The Panel shall send in writing, 
within a timeframe to be determined by it, any questions to the third parties to which it 
wishes to receive a res ponse in writing . Each third party shall be invited to respond in 
writing to such questions within a deadline to be determined by the Panel.  
 WT/DS518/R/Add.1  
 
- 7 - 
 
  Descriptive section  
 
18.  The description of the arguments of the parties and third parties in the descriptive section  of 
the Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report . These executive summaries shall not in any way serve 
as a substitute for the submissions of the par ties and third parties in the Panel 's examination of the 
case. 
 
19.  Each party shall submit an integrated executive summar y of the facts and arguments as 
presented to the Panel in its first written submissions, first opening and closing oral statements in  
accordance with the timetable adopted by the Panel . This summary may also cover the responses 
to questions following the first substantive meeting . Each party shall also submit a separate 
integrated executive summary of its written rebuttal, second openin g and closing oral statements in 
accordance with timetable adopted by the Panel . This summary may also cover the responses to 
questions following the second substantive meeting and comments on such responses . Each 
integrated executive summary shall be limi ted to no more than 15 pages . The Panel will not 
summarize in a separate part of its report, or annex to its report, the parties ' responses to questions.  
 
20.  Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel . This 
integrated executive summary may also include a summary of responses to questions, if relevant . 
The executive summary to be provided by each third party shall n ot exceed six pages.  
 
21.  The Panel reserves the right to request the parties and third parties to provide executive 
summaries of facts and arguments presented by a party or a third party in any other submissions 
to the Panel for which a deadline may not be specified in the timetable.  
 
Interim review  
 
22.  Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the time table adopted by the Panel . The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
 
23.  In the event that no further meeting with the Panel is requested, each party may submit written 
comments on the other party 's written request for review, in accordance with the timetable adopted 
by the Panel . Such comments shall be limited to commenting on the other party 's written request 
for review.  
 
24.  The interim report, as well as the final re port prior to its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
 
Service of documents  
 
25.  The following procedures regarding service of documents shall apply:  
 
a. Each party and third party shall submit all documents to the Panel by filing them with the 
DS Registry (office No . 2047).  
 
b. Each party and third party shall file two paper copies of all documents it submits to the 
Panel, including of any exhibits submitted to the Panel . The DS  Registrar shall stamp the 
documents with the date and time of the filing.  
 
c. Each party and third party shall also provide an electronic copy of all documents it submits 
to the Panel at the same time as the paper versions, including of any exhibits, preferably 
in Microso ft Word format, either on a CD -ROM, DVD, USB Key or as an e -mail attachment . 
If the electronic copy is provided by e -mail, it should be addressed to DSRegistry@wto.org, 
with a copy to  XXX@wto.org  and XXX@wto.org . If a CD -ROM, DVD  or USB Key is provided, 
it shall be filed with the DS Registry . The paper version of documents shall constitute the 
official version for the purposes of the record of the dispute.  
 WT/DS518/R/Add.1  
 
- 8 - 
 
  d. Each party shall serve any d ocument submitted to the Panel directly on the other party . 
Each party shall, in addition, serve on all third parties its written submissions in advance 
of the first substantive meeting with the Panel . Each third party shall serve any document 
submitted to  the Panel directly on the parties and all other third parties . Each party and 
third party shall confirm, in writing, that copies have been served as required at the time 
it provides each document to the Panel.  
 
e. Each party and third party shall file its  documents with the DS Registry and serve copies 
on the other party (and third parties where appropriate) by 17h00 (Geneva time) on the 
due dates established by the Panel . A party or third party may submit its documents to 
another party or third party in e lectronic format only, subject to the recipient party or third 
party's prior written approval and provided that the Panel Secretary is notified.  
 
f. The Panel shall provide the parties with an electronic version of the descriptive section, 
the interim repo rt and the final report, as well as of other documents as appropriate . When 
the Panel transmits to the parties or third parties both paper and electronic versions of a 
document, the paper version shall constitute the official version for the purposes of th e 
record of the dispute.  
 
26.  The Panel reserves the right to modify these procedures as necessary, after consultation with 
the parties.  
 
 
 WT/DS518/R/Add.1  
 
- 9 - 
 
  ANNEX A -2 
INTERIM REVIEW  
1  INTRODUCTION  
1.1.  In compliance with Article  15.3 of the DSU, this Annex sets out the Panel's  discussion of the 
arguments made at the interim review stage. We have modified certain aspects of the Report in light 
of the parties'  comments where we considered it appropriate, as explained below. In addition, the 
Panel ha s made a number of editorial changes, some of which were suggested by the parties, to 
improve the clarity and accuracy of the Report or to correct typographical and other non -substantive 
errors.1 
1.2.  As a result of the changes that we have made, the numb ering of paragraphs and footnotes in 
the Final Report has changed from the Interim Report. References to footnotes and 
paragraph  numbers in this section relate to the Final Report.  
2  SPECIFIC REQUESTS  FOR REVIEW SUBMITTE D BY THE PARTIES  
2.1  Japan's  specific requests for review  
2.1.1   Paragraph 7.15  
2.1.  Japan requests that the Panel modify paragraph 7.15 in order to more completely reflect its 
arguments that the Panel should make findings and recommendations in the present dispute, despite 
the expiry of  the measure at issue. India does not comment on this request.  
2.2.  We have modified paragraph 7.15 to better reflect Japan's  arguments.  
2.1.2   Paragraph 7.24  
2.3.  Japan requests that the Panel add a footnote after the phrase "[a]s indicated above" in t he 
fourth sentence of paragraph 7.24 in order to clarify the relevant paragraph of the Report in which 
the same issue has been addressed. India does not comment on this request.  
2.4.  We have modified the fourth sentence of paragraph 7.24 to clarify the Pa nel's reasoning.  
2.1.3   Section 7.4  
2.5.  Japan refers to the Panel's  statement in paragraph 7.30 that both parties agree that the 
challenged measure is a safeguard within the meaning of Article  XIX:1(a) of the GATT 1994 and of 
the Agreement on Safeguards.  Japan requests that the Panel summarize the parties'  arguments in 
this regard and add a reference to the parties'  relevant submissions.2 India does not comment on 
this request.  
2.6.  In light of Japan's  request, we have added footnote 74 to paragraph 7.30  to refer to the 
parties'  submissions. We note that paragraph  7.30 introduces the question that the Panel addresses 
in section 7.4, i.e. whether the measure at issue falls within the scope of the Agreement on 
Safeguards and Article  XIX of the GATT 1994. We  summarize the parties'  arguments in the 
subsequent paragraphs, including paragraphs 7.44, 7.54, and 7.64, in the manner and to the extent 
necessary and appropriate to capture our understanding for the purposes of our own assessment 
and reasoning. We note that parties are free to reflect their arguments in their executive summaries, 
                                                
1 We have corrected typographical and non -substantive errors in paragraphs 7.106, 7.196,  7.227, 
and 7.246.  
2 In particular, Japan refers to its responses to Panel question Nos. 11 and 14, and its second written 
submission, paras.  276-279. WT/DS518/R/Add.1  
 
- 10 - 
 
  annexed to the Final Report, in a way they consider appropriate. Japan's  arguments on this issue 
are reflected in its second executive summary, paragraphs  40-42, Annex B -2. 
2.1.4   Paragraph 7.43  
2.7.  Japan requests that the Panel modify the penultimate sentence of paragraph 7.43, by adding 
the word "ordinary" before the phrase "customs duties". India does not comment on this request.  
2.8.  We have made the requested change to c larify the Panel's  reasoning.  
2.1.5   Paragraph 7.49  
2.9.  Japan requests that the Panel delete the phrase "as a matter of fact" in the last sentence of 
paragraph 7.49. India does not comment on this request.  
2.10.   We have made the requested change to clar ify the Panel's  reasoning.  
2.1.6   Paragraph 7.62  
2.11.   Japan requests that the Panel modify paragraph 7.62 to reflect Japan's  argument that the 
fact that imports from Ukraine and China were subject to the measure at issue due to their significant 
market s hares indicated that India selected the sources of imports to be subject to the measure with 
a view to preventing or remedying serious injury.3 Japan also requests that the Panel address this 
argument of Japan. India does not comment on this request.  
2.12.   In light of Japan's  request, we have added a new paragraph 7.60 to reflect Japan's  argument 
on this issue and added footnote 118 to refer to Japan's  submissions. The Panel's  reasoning in 
paragraph 7.62 reflects its considerations of the arguments ma de by both parties in light of the 
evidence on the record. Therefore, there is no need to make any further changes in paragraph 7.62.  
2.1.7   Paragraph 7.74  
2.13.   Japan suggests that the Panel use the term "measures at issue" in the first sentence of 
parag raph 7.74 in singular form in order to ensure consistency with the rest of the Report. India 
does not comment on this request.  
2.14.   We have made the requested correction.  
2.1.8   Paragraph 7.95  
2.15.   Japan requests that the Panel modify paragraph 7.95 in  order to more completely reflect its 
arguments. India made no comment on this request.  
2.16.   We have modified paragraph 7.95 to better reflect Japan's  arguments.  
2.1.9   Paragraphs 7.101 and 7.102  
2.17.   Japan requests that the Panel modify paragraphs 7.1 01 and 7.102 in order to more accurately 
reflect its arguments. India made no comment on this request.  
2.18.   We have modified paragraphs 7.101 and 7.102 to better reflect Japan's  arguments.  
2.1.10   Paragraph 7.117  
2.19.   Japan requests that the Panel modi fy the last sentence of paragraph 7.117 in order to more 
accurately reflect Japan's  arguments. India does not comment on this request.  
                                                
3 In particular, J apan refers to its second written submission, para.  285; and response to Panel question 
No. 11, para.  5. WT/DS518/R/Add.1  
 
- 11 - 
 
  2.20.   We have modified the last sentence of paragraph 7.117 to better reflect Japan's  arguments.  
2.1.11   Section 7.6  
2.21.  Japan suggests that the Panel refer to paragraph (a) of Article  4.2 of the Agreement on 
Safeguards in the title of section 7.6. India does not comment on this request.  
2.22.   We have made the requested correction.  
2.1.12   Paragraph 7.147  
2.23.   Japan r equests that the Panel modify paragraph 7.147 in order to more completely reflect its 
arguments. India does not comment on this request.  
2.24.   We have modified paragraph 7.147 to better reflect Japan's  arguments.  
2.1.13   Paragraph 7.153  
2.25.   Japan sugge sts that the Panel use the word "determine" instead of the word "define", when 
summarizing Japan's  arguments in the first sentence of paragraph 7.153, and add a footnote after 
this sentence to refer to Japan's  submissions. India does not comment on this re quest.  
2.26.   We have made the requested correction.  
2.1.14   Paragraphs 7.159 and 7.163  
2.27.   Japan requests that the Panel modify paragraphs 7.159 and 7.163 in order to more completely 
reflect its arguments with respect to the determination of the domest ic industry. Japan also requests 
that the Panel include data on sales, market share, and production of the domestic industry as 
compared to the producers outside the domestic industry. India does not comment on this request.  
2.28.   We have modified paragra phs 7.159 and 7.163, and added footnote 273 to better reflect 
Japan's  arguments. We have also added footnotes 274 and 275, and modified footnote 276 to reflect 
the data on sales, market share, and production of the domestic industry and the producers outsi de 
the domestic industry.  
2.1.15   Paragraph 7.164  
2.29.   Japan refers to the Panel's  statement in paragraph 7.164 that Article  4.1(c) does not require 
a competent authority to examine the domestic producers'  market share and sales in order to define 
the do mestic industry. Japan submits that the Panel has not addressed Japan's  argument relating 
to differences in production trends of the domestic industry and producers outside the domestic 
industry. Japan requests that the Panel address this argument in the R eport. India does not comment 
on this request.  
2.30.   In light of Japan's  request, we have modified paragraph 7.165 to clarify the Panel's  findings.  
2.1.16   Paragraph 7.180  
2.31.   Japan requests that the Panel modify paragraph 7.180 to more completely reflect 
Japan's  arguments regarding the Indian competent authority's  evaluation of the share of the 
domestic market taken by increased imports. India does not comment on this request.  
2.32.   We have decided not to grant Japan's  request. The paragraph accur ately expresses the 
Panel's  understanding of Japan's  arguments.  
2.1.17   Paragraphs 7.187 and 7.191  
2.33.   Japan requests that the Panel elaborate further on its analysis of Japan's  argument that the 
Indian competent authority focused its analysis on the no n-captive segment of the domestic WT/DS518/R/Add.1  
 
- 12 - 
 
  industry. Japan repeats its argument that the market share of the domestic industry presented in 
the Final Findings (45% in 2013 -2014 and 37% in 2015 -2016 (annualized)) refers only to the market 
share of the non -captive se gment.  
2.34.   India opposes Japan's  request. India submits that the Panel's  conclusion in paragraphs 7.187 
and 7.191 is not based solely on the excerpts from the Final Findings quoted by the Panel in 
paragraph 7.186, but also on its analysis in the precedi ng paragraphs. In particular, India notes that 
Table 3 in paragraph 7.183 of the Report shows that the Indian competent authority's  analysis of 
the changes in the market share was based upon the examination of both captive and non -captive 
segments of the m arket.  
2.35.   We have decided not to grant Japan's  request. As explained in paragraph 7.181 of the Report, 
Article  4.2(a) of the Agreement on Safeguards requires a competent authority to evaluate "the share 
of the domestic market taken by increased imports ", which is distinct from the language in the 
Anti-Dumping Agreement that refers to a "decline" in the domestic industry's  market share. The 
Panel observes in paragraph 7.188 that the domestic industry lost sales and market share in the 
non-captive segment , while it was able to maintain its market share represented by the captive 
market. Paragraph 49(b) of the Final Findings (represented in Table 3, paragraph 7.183, of the 
Report) shows that the Indian competent authority considered both captive and non -captive 
segments of the market when examining sales of different market participants and share of the 
domestic market taken by imports.  
2.1.18   Paragraph 7.188, footnote 306  
2.36.   Japan requests that the Panel add a reference to paragraph 288 of Japan's  first written 
submission in footnote 306. India does not comment on this request.  
2.37.   We have decided not to grant Japan's  request. Footnote 306 refers to the table presented on 
page 82 of Japan's  first written submission (which corresponds to Table 4 of th e Panel Report). In 
any event, in light of Japan's  request, we have modified footnote 306 to refer to Table 4 of the 
Report.  
2.1.19   Paragraph 7.189  
2.38.   Japan requests that the Panel reflect and address its argument that in the domestic 
investigation so me interested parties mentioned the possibility that the domestic industry was not 
able to meet the increasing demand due to reasons other than increased imports, such as the fact 
that the increase in demand was for products that were not produced by the d omestic industry. 
India does not comment on this request.  
2.39.   In light of Japan's  request, we have added a footnote to paragraph 7.189 to clarify the 
Panel's  reasoning.  
2.1.20   Paragraph 7.216  
2.40.   Japan suggests that the Panel modify paragraph 7.216,  by adding a sentence describing 
Japan's  argument that the figures of inventories, production, and sales for a given year of the POI 
do not match. India does not comment on this request.  
2.41.   We have decided not to grant Japan's  request, since this argum ent is noted by the Panel in 
footnote 349. We see no reason to make the change requested by Japan.  
2.1.21   Paragraph 7.221  
2.42.   Japan requests that the Panel modify paragraph 7.221 in order to fully and accurately reflect 
Japan's  arguments regarding the Indian competent authority's  alleged determination of threat of 
serious injury. Japan also requests that that the Panel modify footnote 351 to provide more complete 
references to Japan's  submissions. India does not comment on Japan's  request.  
2.43.   We hav e modified paragraph 7.221 and added footnote 352 to better reflect 
Japan's  arguments. We have also modified footnote  351. WT/DS518/R/Add.1  
 
- 13 - 
 
  2.1.22   Paragraph 7.228  
2.44.   Japan requests that the Panel modify footnote 367 in order to note that the domestic industry 
submitte d the post POI data after the public hearings. India does not comment on this request.  
2.45.   We have decided not to grant Japan's  request. The proposed change is unnecessary and Japan 
has not explained why the additional language is relevant to the analys is in paragraph 7.228.  
2.1.23   Paragraph 7.232, footnote 369  
2.46.   Japan requests that the Panel modify the reference to its second written submission in 
footnote 369. India does not comment on Japan's  request.  
2.47.   We have made the requested change.  
2.1.24  Paragraph 7.240, footnote 384  
2.48.   Japan requests that the Panel add a reference to its second written submission in 
footnote  384. India does not comment on Japan's  request.  
2.49.   We have made the requested change.  
2.1.25   Paragraph 7.241  
2.50.   Japan requests that the Panel modify paragraph 7.241 to more completely reflect 
Japan's  arguments regarding the causal link analysis. Japan also requests that the Panel add a 
reference to its second written submission in footnote  385. India does not  comment on 
Japan's  request.  
2.51.   We have modified paragraph 7.241 and added footnotes 388 -390 and 410 to better reflect 
Japan's  arguments and to clarify the Panel's  reasoning. We have also added a reference to 
Japan's  second written submission in footno te 385.  
2.1.26   Paragraph 7.258, footnote 411  
2.52.   Japan requests that the Panel modify the reference to its second written submission in 
footnote 411. India does not comment on Japan's  request.  
2.53.   We have made the requested change.  
2.1.27   Paragraph  7.259  
2.54.   Japan requests that the Panel modify paragraph 7.259 to add a reference to its argument that 
the Indian competent authority failed to distinguish the impact of imports caused by the unforeseen 
developments and the effect of the GATT obligatio ns from the impact caused by other reasons. India 
does not comment on Japan's  request.  
2.55.    We have decided not to grant Japan's  request, since this argument is noted by the Panel in 
footnote 440. We see no reason to make the change requested by Japan.  
2.1.28   Paragraph 7.260  
2.56.   Japan requests that the Panel add a new paragraph between paragraphs 7.260 and 7.261 in 
order to reflect its arguments made in response to India's  argument that the obligation to conduct 
a non -attribution analysis pursuant to  the second sentence of Article  4.2(b) of the Agreement on 
Safeguards only arises when a competent authority has determined that a specific factor is "relevant" 
under Article  4.2(a). India does not comment on Japan's  request.  
2.57.   We have decided not to grant Japan's  request. We summarize the parties'  arguments in 
paragraphs 7.259 and 7.260 in the manner and to the extent necessary and appropriate to capture WT/DS518/R/Add.1  
 
- 14 - 
 
  our understanding for the purposes of our own assessment and reasoning. We note that the parties 
are free to reflect their arguments in their executive summaries, annexed to the Final Report, in a 
way they consider appropriate. Japan's  arguments on this issue are reflected in its second executive 
summary, paragraph  27, Annex B -2. 
2.1.29   Paragraph 7.27 2 
2.58.   Japan requests that the Panel reflect in paragraph 7.272 that more detailed explanations of 
the interested parties'  arguments summarized in the Final Findings were provided in the submissions 
of the interested parties to the Indian competent autho rity. India does not comment on 
Japan's  request.  
2.59.   We have decided not to grant Japan's  request. We see no reason to make the requested 
change, since Japan does not refer to any specific submission by interested parties on the record of 
the Panel that  the Indian competent authority failed to consider.  
2.1.30   Paragraph 7.280, footnote 443  
2.60.   Japan requests that the Panel add a reference to its second written submission in 
footnote  443. India does not comment on Japan's request.  
2.61.   We have made the requested change.  
2.1.31   Paragraph 7.308  
2.62.   Japan requests that the Panel modify paragraph 7.308 in order to more completely reflect 
Japan's  arguments in relation to its claim under Article  12.1 (a) of the Agreement on Safeguards. 
India does not c omment on this request.  
2.63.   We have modified paragraph 7.308 and added footnote 467 to better reflect 
Japan's  arguments.  
2.1.32   Paragraph 7.379  
2.64.   Japan suggests that the Panel delete the words "the month" in paragraph 7.379, because 
they are used  twice. India does not comment on this request.  
2.65.   The third sentence of paragraph 7.379 refers to "the precise day of the month" and "the 
month, and the year", which is consistent with the definition of the word "date" provided in the 
first sentence of paragraph 7.378. Therefore, we reject Japan's request.  
2.2  India's  specific requests for review  
2.2.1   Section 7.3 (paragraphs 7.11 -7.28)  
2.66.   India requests that the Panel review paragraphs 7.11 -7.28 of the Report with respect to the 
continued effects of the measure at issue, and refrain from making any recommendations for the 
following reasons. India submits that the Panel has not fully evaluated India's  arguments that the 
Panel's  recommendation would be outside its mandate, retrospective in nature and in effect. India 
notes that it has clarified that the measure at issue does not have lingering effects. India argues 
that Japan failed to submit any evidence or documents to prove its contention tha t the measure at 
issue would have an effect after its expiry. India submits that Section 28 of the Indian Customs 
Act, 1962 is not designed for the imposition of duties, but only for the collection of duties, which 
were not levied, inter alia , due to the r eason of collusion, wilful misstatement, or suppression of 
facts. India contends that Japan cannot refer to the collection mechanism to argue that the measure 
at issue still has an effect. India also notes that the Panel's  recommendations discriminate agai nst 
the product concerned that had been imported before the measure at issue expired and on which 
duties had been collected. In addition, India considers that the Panel's approaches in paragraphs 
7.11-7.28 and paragraph  7.72 of the Report are contradictory , because in the latter the Panel 
considered that there must be a real demonstration of the conduct by the regional or local WT/DS518/R/Add.1  
 
- 15 - 
 
  authorities, while in the former the Panel did not mention any evidence or documents which would 
compel the Panel to make recommend ations.  
2.67.   Japan opposes India's  request. Japan recalls that pursuant to Article  15.2 of the DSU, a party 
may submit a written request to review "precise aspects" of the report. Japan submits that India 
refers to section 7.3, i.e. paragraphs 7.11 -7.28 of the Report, without referring to specific 
paragraphs of that section. Japan contends that India resubmits its arguments or submits new 
arguments as to why the Panel findings in section 7.3 should be modified. Japan submits that the 
interim review stage of a panel proceeding is not the appropriate time for India to relitigate issues 
discussed during the panel proceedings. Japan notes that it submitted evidence that, even if the 
measure at issue expired, it continues to have legal effects and therefore the  Panel has no basis to 
refrain from making a recommendation. Japan also submits that the Panel has examined in detail 
Section 28 of the Customs Act, 1962 in paragraphs 7.13 -7.23 of the Report.  
2.68.   We have decided not to grant India's  request. We recall that the limited function of the interim 
review stage is to consider specific and particular aspects of the interim report, and not to reopen 
arguments and evidence already put before the Panel.4 Section 28 of the Customs Act, 1962 has 
been addressed by th e Panel in paragraphs  7.13-7.27. India's  comments would require us to engage 
in a new analysis of arguments and evidence on the record.  
2.2.2   Section 7.4.3.2 (paragraphs 7.54 -7.63)  
2.69.   India requests that the Panel review paragraphs 7.54 -7.63 of the R eport regarding 
India's  obligations under Article  I:1 of the GATT 1994. India disagrees with the Panel's  observation 
that the suspension of India's  obligation under Article  I:1 was not designed to prevent or remedy 
serious injury to the domestic industry. India considers that this observation is based on an 
erroneous premise that Article  9.1 of the Agreement on Safeguards is relevant for determining 
whether a measure falls within the scope of Article  XIX of the GATT 1994. India submits that, 
because the mea sure at issue was applied on a selective basis by excluding imports from certain 
developing countries, India had suspended its MFN obligations under Article  I:1 of the GATT 1994.  
2.70.   Japan replies that India failed to identify the "specific aspect" of t he Report that it wishes the 
Panel to review. Japan submits that although it shares India's  view that the challenged measure 
suspended India's  MFN obligation under Article  I:1 of the GATT 1994, Japan notes that India failed 
to indicate any of its submissio ns to the Panel where the above arguments can be found.  
2.71.   We have decided not to grant India's  request. The Panel addressed India's  arguments as to 
whether India suspended its MFN obligation with the objective of preventing and remedying serious 
injury in paragraph 7.62 of the Report.  
2.2.3   Section 7.4.3.3 and section 7.4.4 (paragraphs 7.64 -7.75)  
2.72.   India requests that the Panel reconsider its decision with respect to the suspension of 
obligations under Article  XXIV of the GATT 1994 in paragraphs 7.64-7.75 of the Report. India 
submits that the Panel failed to consider the specific arguments raised by India as to why the 
measure at issue resulted in a suspension of India's  obligations under Article  XXIV of the GATT 1994. 
In particular, India submits  that, as long as there is an obligation which is incurred by a Member 
under the GATT 1994, it would be incorrect to state that it is not an obligation in terms of Article  XIX 
of the GATT 1994 on the ground that it is not a positive obligation. India argue s that Article  XXIV is 
permissive only when a Member has the option to enter into an FTA. According to India, Article  XXIV 
becomes a mandatory obligation once the FTA is entered into and a Member has to comply with 
provisions of Article  XXIV. India further  argues that since Article  XIX does not differentiate between 
different GATT obligations, the Panel cannot make such differentiation.  
2.73.   India further notes the Panel's  finding that there is no indication that the measure at issue 
resulted in regional  or local authorities engaging in any conduct that was inconsistent with 
                                                
4 Panel Report, EU – Energy Package , para.  6.18 (referring to Panel Reports, Japan – 
Alcoholic  Beverages  II, para.  5.2; Australia – Salmon , para.  7.3; Japan – Apples (Article  21.5 – US), 
para. 7.21; India – Quantitative Restrictions , para.  4.2; Canada – Continued Suspension , paras.  6.16-6.17; 
US – Continued Suspension , paras.  6.17-6.18; India – Agricultural Products , para.  6.5; and Russia – Pigs (EU) , 
para. 6.7). WT/DS518/R/Add.1  
 
- 16 - 
 
  India's  obligations under the GATT 1994. India submits that this finding is based on incorrect 
premise. India argues that the Panel does not need to examine whether the measure has re sulted 
in a de facto  violation of obligations, rather the nature of the obligation should be a determinative 
factor while examining the scope of the provision in question. India reiterates that the Panel did not 
follow a consistent approach when interpreti ng the scope of Article  XXIV:12 of the GATT 1994 and 
considering Japan's  contention that the measure at issue has a continued effect. India submits that 
the regional or local authorities did not engage in any conduct that was inconsistent with 
India's  obligation under the GATT 1994 in compliance with the obligation under Article  XXIV:12.  
2.74.   Japan opposes India's  request. Japan notes that India refers generally to the entire 
section  7.4.3.3 and section 7.4.4 and fails to identify the "specific aspect" of  the Report that it wishes 
the Panel to review. Japan submits that India reargues the case and resubmits its arguments as to 
why the Panel should consider that the measure at issue resulted in the suspension of 
India's  obligations under Article  XXIV of the  GATT 1994. Japan notes that the Panel addressed those 
arguments in paragraphs 7.70 -7.72. Japan reiterates that the purpose of the interim review is not 
to relitigate the issues that have been discussed during the panel proceedings or to challenge the 
legal interpretations developed by the Panel.  
2.75.   We have decided not to grant India's  request. We recall that the limited function of the interim 
review stage is to consider specific and particular aspects of the interim report, and not to reopen 
arguments  and evidence already put before the Panel. India's  arguments regarding Article  XXIV of 
the GATT 1994 have been addressed by the Panel in paragraphs 7.64 -7.73 of the Report.  
2.2.4   Section 7.5.5 (paragraphs 7.100 -7.115)  
2.76.   India takes issue with the Pa nel's observations in paragraphs 7.108 -7.110 of the Report, 
which address the question of logical connection between unforeseen developments and the 
increased imports. India submits that the Panel has not indicated the specific obligations which 
require co mpetent authorities to conduct a country -specific analysis with regard to imports and 
unforeseen developments. India submits that Article  XIX:1(a) of the GATT 1994 and the Agreement 
on Safeguards do not require country -specific analyses. India reiterates t hat considering the global 
nature of safeguard measures, there is no need to conduct a country -specific analysis.  
2.77.   India requests that the Panel modify paragraph 7.112 in order to reflect India's  arguments 
regarding the analysis of unforeseen develop ments in relation to the product concerned submitted 
in India's  responses to Panel question Nos. 16 and 90.  
2.78.   India also takes issue with the Panel's  statement that the timing of unforeseen developments 
is a relevant consideration for showing that the  unforeseen developments resulted in an increase in 
imports. India submits that neither Article  XIX of the GATT 1994 nor the Agreement on Safeguards 
require that the unforeseen developments should necessarily coincide in time with the increase in 
imports. India further submits that the Panel did not reconcile this finding with the statement of the 
panel in US – Steel Safeguards  that confluence of events can constitute unforeseen developments. 
India argues that if the Indian competent authority should elabor ate on timing of unforeseen 
developments, it would mean that there is an obligation to explain each unforeseen development 
causing the increase in imports. India requests the Panel to review and modify the relevant part of 
the Report.  
2.79.   Japan opposes India's  request. Japan submits that India repeats its arguments presented 
during the panel proceedings and challenges the Panel's  findings. Japan reiterates that the purpose 
of the interim review is not to reargue the issues discussed during the panel proc eeding or to 
challenge the legal interpretations developed by a panel. With respect to paragraphs 7.108 -7.110, 
Japan notes that the Panel has accurately reflected India's  argument in paragraph 7.104 of the 
Report. Japan also notes that India fails to make any specific request with regard to changes that 
the Panel should make to paragraphs 7.108 -7.110. With respect to paragraph 7.112, Japan notes 
that India's  arguments in response to Panel question Nos. 16 and 90, namely that "[s]teel production 
worldwide is  measured in terms of the crude capacity" and that "the proportion of the [product under 
consideration] remains the same qua the crude production for which data is available in public 
domain" have been addressed and rejected by the Panel in paragraphs 7.11 1 and 7.112 of the 
Report. With respect to paragraph 7.114, Japan notes that the Panel has accurately reflected 
India's  argument in paragraph 7.104 of the Report.  WT/DS518/R/Add.1  
 
- 17 - 
 
  2.80.   We have decided not to grant India's  request. In its comments, India repeats arguments  
submitted during the panel proceeding that the Panel addressed in its Report. In particular, 
India's  arguments regarding the country -specific analysis of unforeseen developments and the 
global nature of safeguard measures have been summarized in paragraph  7.104 and addressed in 
paragraphs 7.107 -7.110 of the Report. India's  arguments presented in its responses to Panel 
question Nos. 16 and  90 regarding the product concerned were addressed in 
paragraphs  7.111 -7.112. In light of this request, however, we have  modified footnote 188 in order 
to note India's  response to Panel's  question  No. 90. India's  arguments regarding the timing of 
unforeseen developments (including the fact that the confluence of events was identified as 
"unforeseen developments") were consi dered in paragraph 7.114 of the Report.  
2.2.5   Section 7.5.6 and section 7.5.7 (paragraphs 7.116 -7.122)  
2.81.   India requests that the Panel review paragraphs 7.116 -7.122 of the Report. India notes that, 
even though the Panel has acknowledged the finding i n US – Steel Safeguards  that "the logical 
connection between tariff concessions and increased imports causing serious injury is proven once 
there is evidence that the importing Member has tariff concessions for the relevant product"5, it has 
found the spec ific reference to India's  tariff concession in the Final Findings as being insufficient. 
India disagrees with the Panel's  observation that the Indian competent authority cited, not the tariff 
concession, but the "low applied tariffs" as a reason for the in crease in imports into India. India 
argues that "low applied tariffs" are clearly a result of India's  tariff concessions.  
2.82.   
 India repeats its argument that evidence 
of the importing Member having a tar iff concession for the relevant product itself proves the logical 
connection between tariff concessions and increased imports causing serious injury. Japan notes 
that the Panel has already considered India's  arguments, as shown in paragraph 7.118 of Report . 
2.83.   We have decided not to grant India's  request. In its comments, India repeats its arguments 
presented during the panel proceedings, which were summarised in paragraphs  7.118 -7.119 and 
addressed in paragraphs  7.120 -7.122 of the Report.  
2.2.6   Sectio n 7.6 (paragraphs 7.123 -7.152)  
2.84.   India requests that the Panel revise paragraphs 7.123 -7.152 of the Report. India reiterates 
that the first quarter of 2015 -2016 has been annualized for an accurate comparison. India repeats 
that the annualization does not result in a change in the POI, but it is only a statistical tool used for 
comparing dissimilar periods. India submits that it is a uniform practice worldwide  to annualize or 
extrapolate the data of a part of financial or calendar year to reflect the data of the complete financial 
or calendar year. India notes that the panel in US – Lamb  considered that a focus on the interim 
data available pertaining to the end of an investigation period was logical and justified the 
extrapolation (annualization) of data.6 India refers to the panel report in US – Line Pipe  to reiterate 
that in the absenc e of any provision in Article  XIX of GATT 1994 or the Agreement on Safeguards 
with regard to the breaking down or manner of analysis of available data, the methodology adopted 
by India cannot be questioned unless it is apparent that such adopted methodolog y is unreasonable 
or biased.7 
2.85.   
meaning that the parties'  comments must be 
sufficiently specific and detail ed. Japan notes that India has only specifically addressed 
paragraph  7.141. Japan submits that by referring to an entire section of the Interim Report covering 
almost 30 paragraphs without indicating which specific paragraphs should be amended, 
India's  request cannot be considered as sufficiently specific and detailed. Japan further submits that 
the Panel has already addressed India's  arguments in paragraphs 7.138 and 7.139 of the Report.  
2.86.   We have decided not to grant India's  request. In its comments,  India repeats its arguments 
submitted during the panel proceeding regarding the use of annualized data, which were summarised 
in paragraph  7.136 and addressed in paragraphs  7.137 -7.145  of the Report . In light of 
                                                
5 India's  request for review of price aspects of the interim report (referring to India's  first written 
submission, paras.  115-116, in turn quoting Panel Reports, US – Steel Safeguards , paras.  10.139 -10.140).  
6 Panel Report, US – Lamb , paras.  7.192-7.194.  
7 Panel Report, US – Line Pipe , para.  7.203.  WT/DS518/R/Add.1  
 
- 18 - 
 
  India's  request, we have added footnote 219  in paragraph  7.136 of the Report in order to better 
reflect India's  arguments.  
2.2.7   Sections 7.8.3.2.2 and 7.8.3.3 (paragraphs 7.194 -7.206 and 7.215 -7.219)  
2.87.   India notes that the Panel's  observation in paragraphs 7.194 -7.206 and 7.215 -7.219 of the 
Report is primarily based upon the premise that India used the annualized data of the first quarter 
of 2015 -2016 for the purpose of its serious injury analysis. Therefore, India reiterates its comments 
regarding section 7.6 above.  
2.88.   
 Japan notes that India fails to explain which specific aspects 
of the Report it asks the Panel to review. Japan submits that India seeks to relitigate the issue of 
the use of annualized data by the competent authority without any explanation a s to why such 
methodology was justified in the specific case at hand.  
2.89.   We have decided not to grant India's  request. As noted, the Panel has discussed 
India's  arguments regarding the annualized data in paragraphs  7.136 -7.145 of the Report.  
2.2.8   Section 7.8.4 (paragraphs 7.220 -7.230)  
2.90.   India requests that the Panel modify section 7.8 of the Report in order to duly consider the 
arguments raised by India during the course of the panel proceeding. India reiterates that the Indian 
competent authorit y examined and made its conclusions with regard to serious injury as well as 
threat of serious injury in paragraphs 45 -59 of the Final Findings. India notes that the expression 
"further" in paragraph 59 of the Final Findings was used in the context of the findings of the Indian 
competent authority with regard to the existence of "threat of serious injury" as reflected in 
paragraphs 100 and 101 of the Final Findings.  
2.91.   
 Japan submits that in its comments regarding section 7 .8.4 
India challenges the Panel's  findings and its legal interpretation of "threat of serious injury" within 
the meaning of Article  4.1(b). Japan reiterates that the parties cannot use the interim review stage 
to reargue their case if they disagree with th e panel's  findings. Japan also notes that the Panel 
carefully analysed the content of the Final Findings as well as India's  arguments in 
paragraphs  7.224 -7.229 of the Report, and reached the conclusion that the existence of a threat of 
serious injury was n ot adequately addressed in the Final Findings.  
2.92.   We have decided not to grant India's  request. In its comments, India reiterates its contention 
that the Indian competent authority made a finding of both serious injury and threat of serious 
injury. The  Panel has discussed this issue in paragraphs  7.220 -7.230 of the Report.  
2.2.9   Section 7.9 (paragraphs 7.232 -7.278)  
2.93.   India requests that the Panel review and modify section 7.9 of the Report regarding the causal 
link between the increase in imports and serious injury. India submits that the Panel's  observation 
regarding the absence of overall coincidence in trends between movements in imports and 
movements in injury factors is factually incorrect. India reiterates that the Indian competent 
authority discussed and reached a conclusion that, while the imports increased, the domestic 
industry lost its market share in the same period. India adds that the decline in profitability of the 
domestic industry occurred over the same period when the increased imp orts took place, and the 
entire injury analysis was for the period when the increased imports took place.  
2.94.   India submits that its competent authority found that there was a direct correlation between 
the increase in imports and the serious injury suf fered by the domestic industry, as imports in 
absolute terms increased approximately three times during 2015 -2016 (annualized) as compared to 
2013-2014. India notes that the domestic industry's  market share declined from 45% to 37% and 
the price of imports  declined sharply, and consequently the domestic industry suffered losses. It is, 
thus, evident that the increased imports have caused serious injury to the domestic industry. India 
argues that its competent authority established a "direct correlation", ra ther than a mere 
"coincidence", between the increase in imports and serious injury suffered by the domestic industry.  WT/DS518/R/Add.1  
 
- 19 - 
 
  2.95.   India notes that the analysis in paragraphs 7.249 -7.252 is based predominantly on the fact 
that the Indian competent authority used  the annualized data of the first quarter of 2015 -2016 for 
the purpose of its analysis. Therefore, India reiterates its comments regarding section 7.6 of the 
Report. Regarding the price competition between imported and domestic products, India reiterates 
that once the products are included into the scope of the investigation, then no further division or 
categorization is required with respect to covered products. India notes that the Agreement on 
Safeguards does not envisage a comparison of prices as requir ed in Article  2.4 of the Anti -Dumping 
Agreement. India adds that the Panel did not consider the fact that, in the absence of the price 
related information from the relevant responding parties, India could not have examined the price 
competition between imp orted and domestic products.  
2.96.   Regarding the non -attribution analysis, India reiterates the arguments presented in its 
first written submission and requests that the Panel reconsider its findings in view of arguments 
advanced by India therein. India r efers to the Panel's  finding that the Indian competent authority 
failed to provide a reasoned and adequate explanation as to why the captive sales of the domestic 
industry and the sales of domestic producers outside the domestic industry were not a source of 
injury to the domestic industry. In this respect, India reiterates that Article  4 of Agreement on 
Safeguards requires competent authorities to only examine the "share of domestic market taken by 
the increased imports". India argues that its competent au thority demonstrated that the share of 
imports had gone up, which leads to a conclusion that the share of the domestic market was reduced.  
2.97.   Japan opposes India's  request. Japan submits that India repeats its arguments and attempts 
to reargue an issue  that the Panel has already addressed. Japan reiterates that interim review stage 
is not the appropriate forum for relitigating arguments already put before the Panel. Japan notes 
that the Panel has already addressed India's  arguments regarding the overall  coincidence in trends 
between movements in imports and movements in injury factors in paragraphs 7.242 -7.248 of the 
Report. Japan also notes that the Panel has addressed India's  arguments regarding the price 
competition between imported and domestic produ cts in paragraph 7.255 of the Report. Finally, 
Japan submits that India's  comment regarding the non -attribution analysis is vague and it is unclear 
what specific aspects of the Panel's  findings with regard to the non -attribution analysis India 
requests the  Panel to modify and how.  
2.98.   We have decided not to grant India's  request. In its comments, India reiterates its arguments 
regarding the causal link and non -attribution that were addressed by the Panel in its Report. In 
particular, the Panel addressed the question of whether there was an overall coincidence of trends 
in paragraphs  7.247 -7.248. The Panel addressed India's  arguments regarding the price analysis in 
the safeguard investigation and the products included into the scope of the investigation in  
paragraph  7.255 of the Report. The Panel addressed India's  arguments regarding the non -attribution 
analysis, specifically regarding the domestic industry's  captive sales and sales of producers outside 
the domestic industry , in paragraphs  7.264 -7.269 of th e Report.  
2.2.10   Paragraphs 7.303 -7.305  
2.99.   India requests that the Panel modify paragraphs 7.303 -7.305 regarding the notification of 
provisional measures. India submits that the Panel should consider the difficulty faced by Members 
(especially develop ing countries), when the competent authorities reach a conclusion, upon the 
preliminary examination, that any delay in the imposition of the duties would cause damage which 
would be difficult to repair. In those circumstances, it might be difficult for a M ember to notify the 
Committee on Safeguards prior to taking the provisional safeguard measures.  
2.100.   Japan opposes India's  request. Japan submits that India's  argument is a matter that should 
not be addressed through the interim review.  
2.101.   We have decided not to grant India's  request. Article  12.4 of the Agreement on Safeguards 
does not provide any exception for developing countries with respect to the notification of provisional 
safeguard measures.  
 
_______________WT/DS518/R/Add.1  
 
- 20 - 
 
  ANNEX  B 
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 First i ntegrated executive summary of the arguments of Japan  21 
Annex  B-2 Second i ntegrated executive summary of the arguments of Japan  31 
Annex B -3 First i ntegrated executive summary of the arguments of India 41 
Annex B -4 Second i ntegrated executive summary of the arguments of India 53 
 
 WT/DS518/R/Add.1  
 
- 21 - 
 
  ANNEX B -1 
FIRST I NTEGRATED EXECUTIVE SUMMARY OF  
THE ARGUMENTS OF JAPAN  
I. INTRODUCTION  
 
1. In the present dispute, Japan challenges the provisional and definitive safeguard measures 
imposed by India on imports of iron and steel products into India. These measures, together with 
the investigation that led to their imposition, violate several prov isions of the Agreement on 
Safeguards and the GATT 1994. Japan respectfully asks the Panel to conclude that India acted 
inconsistently with its WTO obligations and to recommend the DSB to request India to bring its 
measures into compliance with the Agreement on Safeguards and the GATT 1994.  
 
II. THE APPLICABLE S TANDARD OF REVIEW  
 
2. The Appellate Body in Argentina – Footwear  (EC) clarified that the general standard of review 
set out in Article 11 of the DSU is applicable to disputes involving claims of violation of the Agreement 
on Safeguards. Consequently, in a dispute involving the Agreement on Safeguards, the panel is 
required to assess whether the competent authorities have examined all the relevant facts and have 
provided a reasoned and adequate explanation as to how the facts support their determination. This 
assessment can only be based on the report published by the competent authorities pursuant to 
Article 3.1, last sentence and Article 4.2(c) of the Agreement on Safeguards. In this case, the 
Preliminary Findings and the Final Findings constitute the "published report " within the meaning of 
Article 3.1, last sentence and Article 4.2(c) of the Agreement on Safeguards.  
 
III. TEXTUAL AND CON TEXTUAL INTERPRETATI ON OF ARTICLE XIX OF  THE GATT 1994 
AND OF THE AGREEMENT ON SAFEGUARDS  
 
3. Japan emphasizes the importance of the context in interpreting Article XIX of the GATT 1994 
and the Agreement on Safeguards for a proper understanding of the requirements to be met by a 
WTO Member wishing to impose saf eguard measures. In particular, the requirements laid down in 
Article XIX of the GATT 1994 and in the Agreement on Safeguards cannot be interpreted in an 
isolated manner but must be interpreted together in light of their context.  
 
4. More specifically, Art icle XIX:1(a) of the GATT 1994 requires competent authorities to identify 
and establish the existence of certain circumstances as well as certain conditions in order to impose 
safeguard measures. Importantly, the competent authorities must establish a "logical connection " 
between these circumstances and conditions. This "logical connection " implies the following steps. 
First, the competent  authorities must identify the "unforeseen developments " and explain how such 
unforeseen developments have resulted in i ncreased imports causing serious injury or threat thereof 
to the domestic industry.  Second, the competent authorities must demonstrate that the Member 
concerned incurred obligations under the GATT 1994 which prevented that Member from addressing 
the increa sed imports causing serious injury or threat thereof to the domestic industry . Third, the 
competent  authorities must identify the increase in imports which resulted from the unforeseen 
developments and from the effect of the GATT  obligation . Fourth, there must be a finding of serious 
injury or threat thereof to the domestic industry. In addition, such serious injury must be caused by 
the increase in imports which resulted from the unforeseen developments and from the effect of the 
GATT oblig ations.  
 WT/DS518/R/Add.1  
 
- 22 - 
 
  IV. INDIA VIOLATED T HE SUBSTANTIVE REQUI REMENTS UNDER THE AG REEMENT ON 
SAFEGUARDS AND ARTIC LE XIX:1(A) OF THE G ATT 1994  
 
A. India violated Article XIX:1(a) of the GATT 1994 with respect to its determination 
on unforeseen developments  
 
1. Failure t o demonstrate the existence of "unforeseen developments " 
 
5. In order to satisfy the requirement to demonstrate the existence of "unforeseen 
developments ", the competent authorities need to provide an explanation as to why the identified 
events could and s hould be regarded as "unforeseen developments " within the meaning of 
Article  XIX:1(a) of the GATT 1994. Merely identifying events and describing them as "unforeseen " 
without explaining why these events were unforeseen at the appropriate time does not satisfy the 
requirement laid down in Article XIX.  
 
6. The Preliminary Findings and the Final Findings refer to a number of events raised by the 
applicants in their application. Japan submits that the Indian authority violated Article XIX:1(a) of 
the GATT 1994 since it failed to demonstrate why those events co nstituted "unforeseen 
developments ". First, it is unclear whether the Indian authority considered that all or some of these 
events constituted "unforeseen developments " or whether these events together formed an 
"unforeseen development " within the meaning of Article XIX:1(a) of the GATT 1994. Contrary to 
what India argues, the mere fact that the Preliminary Findings and the Final Findings refer to the 
Panel Report in US – Steel Safeguards  does not make it "evident that the Competent Authority 
considered tha t a confluence of all these events constitute [the] 'unforeseen developments '". Any 
explanation must be explicit and thus clear and unambiguous.  
 
7. Second , regardless of whether the Indian authority considered these events, taken together 
or separately, a s unforeseen development(s), the Indian authority did not discuss why these events 
could be considered as "unforeseen ". In order to satisfy the requirement to demonstrate the 
existence of "unforeseen developments ", the competent authorities need to provide  "as a minimum, 
some discussion by the competent authorities as to why [such developments] were unforeseen at 
the appropriate time ". It also means that "[a] mere phrase in a conclusion, without supporting 
analysis of the existence of unforeseen development s, is not a substitute for a demonstration of 
fact". However, the Indian authority did not provide such explanation.  
 
8. Third, Japan also notes that, while the Final Findings seem to indicate that certain 
developments were unforeseen by the domestic indu stry, it does not show that these developments 
were unforeseen by India for the purpose of Article XIX:1(a) of the GATT 1994.  
 
2. Failure to demonstrate a "logical connection " between the unforeseen developments and the 
increase in imports causing or threatening to cause serious injury to the domestic industry  
 
9. First, the Indian authority failed to demonstrate how imports increased as a result of the 
alleged unforeseen devel opments. Merely asserting that there is a "logical connection " cannot satisfy 
the requirement to provide a reasoned and adequate explan ation as required under Article  XIX. 
Japan submits that, in order to do so in this case, the Indian authority was require d to provide a 
reasoned and adequate explanation regarding how and to what extent the alleged unforeseen 
developments changed the competitive relationship between the imported and domestic products  to 
the detriment of the latter and to such a degree as to result in an increase in imports causing, or 
threatening to cause, serious injury to the domestic industry. This was necessary since, due to the 
nature of the events, there was no clear and automatic link between the allegedly identified events 
and an incr ease in imports into India.  
 
10. Merely noting the "huge capacities " developed by certain exporting countries is insufficient 
since the existence of such capacities does not per se  lead to the conclusion that it resulted in 
increased imports causing or thr eatening to cause serious injury to the Indian domestic industry. 
The same comment applies to the increase in demand in India  and the fact that the US and the EU 
reduced their dependence on imported steel which is referred to in connection with excess capa cities 
in certain countries as well as with regard to the other developments affecting these countries. 
Indeed, none of these events per se  leads to increased exports from those countries to India. As 
there is no automatic link between the unforeseen devel opments examined above, taken separately 
or in conjunction , and the increase in imports into India causing or threatening to cause serious WT/DS518/R/Add.1  
 
- 23 - 
 
  injury, the Indian authority should have explained how these events changed the competitive 
relationship between impo rts and the domestic products to the detriment of the latter and to such a 
degree as to result in an increase in imports causing, or threatening to cause, serious injury to the 
domestic industry.  
 
11. Furthermore, for those events which are specific to certain exporting countries, the Indian 
authority should have made an analysis on a per country  basis. Such explanation is, however, 
missing in the Preliminary Findings and the Final Findings.  
 
12. Finally, the Indian authority should have demonstrated that the events identified as 
unforeseen developments occurred before imports started to surge. In the present case, however, 
the analysis does not indicate whether the alleged unforeseen developments occurr ed before the 
alleged surge in imports. Japan notes that the evidence on the record appears to indicate that some 
of the alleged unforeseen developments did not take place before the increase in imports  and 
suggests that the increase in imports was caused by reasons other than the alleged unforeseen 
developments.  
 
13. Second , the Indian authorit y failed to explain the impact of the unforeseen developments on 
the products concerned as the Preliminary Findings and the Final Findings refer to "steel" in genera l 
but fail to consider how the alleged unforeseen developments relate to  the specific products at issue. 
Japan recalls that the Appellate Body in US – Steel Safeguards  upheld the panel 's findings that the 
factual demonstration of "unforeseen developments " must relate to the specific product covered by 
the specific measure at issue.  
 
14. Third, the Indian authorit y's analysis is also deficient since t he Preliminary Findings and the 
Final Findings  do not provide any supporting data to substantiate its general assertion that the 
unforeseen developments resulted in the increase in imports  causing or threatening to cause serious 
injury . As indicated by the panel in US – Steel Safeguards , an explanatio n that is not supported by 
relevant data cannot be seen as a reasoned and adequate explanation. Accordingly, Japan submits 
that simple assertions on the part of the Indian  authorit y, without any supporting evidence, are 
insufficient to establish the existe nce of the "logical connection " between the alleged unforeseen 
developments and the increase in imports.  
 
B. India violated Article XIX:1(a) of the GATT 1994 with respect to its determination 
on a "logical connection " between the effect of the obli gations  incurred under the 
GATT  1994  and the increase in imports causing or threatening to cause serious injury to 
the domestic industry  
 
15. Under Article XIX:1(a) of the GATT 1994 , the Member wishing to impose safeguard measures 
must demonstrate not only that it has incurred obligations under the GATT 1994 but also how the 
obligations incurred under the GATT 1994 prevented the WTO Member  concerned from taking WTO -
consistent measures to address the increase in imports  causing or threate ning to cause serious 
injury to the domestic industry .  
 
16. In the present case, while the Indian authority noted that India 's bound rate on the products 
concerned is 40%, it failed to explain how the tariff concession of 40% undertaken by India under 
the GATT 1994 had the effect of preventing India from taking WTO -consistent measures. In fact, 
the Indian authority acknowledged that there was no relationship between the effect of the 40% 
bound tariff rate India committed to and the alleged increase in impo rts since, according to the 
Indian authority, the alleged increase in imports was due to the effect of the "low applied tariffs " 
which are much lower than the bound tariff rate of 40% .  
 
C. India violated Articles 2.1, 3.1, 4.2(a) and 4.2(c) of the Agreement on Safeguards 
and Article XIX:1(a) of the GATT 1994 with respect to its determination of an increase in 
imports  
 
17. First, India failed to determine an increase in imports based on imports which arose  "as a 
result of " the unforeseen developments and the effect of the obli gations incurred under the 
GATT  1994. Since the Indian authority failed to demonstrate the logical connection between the 
increase in imports and the unforeseen developments and the effect of the oblig ations incurred under 
the GATT 1994, it improperly considered all imports in its analysis without ensuring that these WT/DS518/R/Add.1  
 
- 24 - 
 
  imports resulted from the unforeseen developments and the effect of the obligations incurred under 
the GATT 1994.  
 
18. Second , India fail ed to make a qualitative analysis of the increased imports by focusing solely 
on the quantitative change in the level of imports between 2013 -2014 and the first quarter of 2015 -
2016.  
 
19. In the present case, in order to determine whether the upward trend in imports – identified 
over a short -term period during the POI – could qualify as an increase in imports justifying the 
imposition of a safeguard measure, the Indian authority was required to conduct a qualitative 
analysis of this upward trend in imports.  In order to make such a qualitative analysis, the Indian 
authority should have evaluated this short -term trend during the POI in light of longer -term trends 
or any other methods, taking into account that the short -term trend could appear simply as a 
recov ery or return to a previous level of imports. The lack of qualitative analysis is striking in this 
case because, when the most recent data is examined in light of the data pertaining to 2011 -2012 
and 2012 -2013, the increase in imports between 2013 -2014 and  2014-2015 appears simply as a 
recovery or a return to the previous level of imports. Thus, without making a qualitative analysis of 
the increase in imports that occurred during the POI, e.g. without looking at this short -term increase 
in light of longer -term trends, India failed to make a determination of an increase in imports in 
accordance with Articles 2.1 and 4.2(a) of the Agre ement on Safeguards and Article  XIX:1(a) of the 
GATT 1994.  
 
20. Third, India failed to demonstrate an increase in imports based  on "objective data ". Indeed, 
the Indian authority annualized the data of Q1 of 2015 -2016 without, however, explaining why this 
annualization was appropriate in light of the circumstances of the case. Japan does not argue that 
the annualization of data is not allowed in the context of a safeguard investigation. However, when 
used, the competent authorities must explain why such annualization is appropriate in light of the 
circumstances of the case. In the present case, the Indian authority failed to explain  why it was  
reasonable to assume that data concerning Q1 of 2015 -2016 was representative for the whole year. 
In fact, when one looks at quarterly figures for previous years, it is clear that there were fluctuations 
between different quarters and that it ca nnot be assumed that the figures for Q1 are representative 
for the entire year.  
 
21. Fourth , India failed to demonstrate that the increase in imports was "recent enough, sudden 
enough, sharp enough and significant enough ", both in absolute and in relative terms, in light of the 
facts of the case. While the Final Findings use the words "sudden, sharp and significant " in the 
concluding paragraph of the section concerning the increased imports, they do not provide any 
explanation why the increase in imports in  absolute or relative terms can be qualified as "sudden ", 
"sharp " or "significant ". An assertion that "[i]t is apparent " from the data "that there is a sudden, 
sharp and significant surge in imports … both in absolute terms as well as in relation to total domestic 
production " without further explanation is clearly not sufficient.  
 
D. India violated Articles 2.1, 4.1(a), 4.1(b), 4.1(c), 4.2(a) and 4.2(b) of the Agreement 
on Safeguards and Article XIX:1(a) of the GATT 1994 with respect to its determination o f 
the domestic industry  
 
1. India violated Article 4.1(c) of the Agreement on Safeguards  
 
22. When a domestic industry is defined as "a major proportion " under Article 4.1(c), it must 
encompass producers whose collective output represents a relatively high  proportion that 
substantially reflects the total domestic production. This means that the competent authorities must 
ensure that the process of defining the domestic industry does not give rise to a material risk of 
distortion in the injury and causation determination. Japan claims that the determination of the 
"domestic industry " in this case does not comply with this standard.  
 
23. In the Preliminary Findings  and the Final Findings , the Indian authority considered that the 
applicants necessarily constituted  "a major proportion " within the meaning of Article 4.1(c) of the 
Agreement on Safeguards merely because they represented at least 50% of the total production. 
However, the "major proportion " test is not a purely mathematical test. Indeed, it ha s both 
quantitative and qualitative connotations. In other words, the fact that domestic producers represent 
more than 50% does not necessarily mean that they constitute a "major proportion ". Japan submits 
that the way in which the Indian authority defined  the domestic industry gave rise to a material risk WT/DS518/R/Add.1  
 
- 25 - 
 
  of distortion. Indeed, while all domestic producers supported the Application, only three of them 
which were petitioners and replied to the questionnaires were included in the definition of the 
domestic i ndustry. This self -selection process by the domestic producers  introduced a material risk 
of distortion.  
 
24. This is confirmed by the facts. Indeed, the examination of the information concerning the 
three domestic producers which were not included in the domestic industry showed positive trends 
in the injury factors for which information has been provided, namely sales, market share and 
production. Japan submits that, by concluding that the applicants represented a major proportion 
merely because they acco unted for more than 50% and by disregarding that the information 
concerning the other domestic producers indicated positive trends with regard to some injury factors 
found to be critical to the finding of serious injury or threat thereof, the Indian author ity introduced 
a material risk of distorting its analysis of the state of the domestic industry and therefore violated 
Article 4.1(c).  
 
2. India violated Articles 2.1, 4.1(a), 4.1(b), 4.2(a) and 4.2(b) of the Agreement on Safeguards  
and Article XIX:1(a) o f the GATT 1994  
 
25. Given that the domestic industry was defined in a manner th at is inconsistent with 
Article  4.1(c), it must be concluded that the injury and causation determinations were consequently 
also inconsistent with Articles 4.1(a), 4.1(b), 4.2( a) and 4.2(b) of the Agreement on Safeguards as 
well as with Article 2.1 of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994.  
 
E. India violated Articles 2.1, 4.1(a), 4.1(b)  and 4.2(a)  of the Agreement on Safeguards 
and Article XIX:1(a) of  the GATT 1994 with respect to its determination of serious injury 
and threat thereof   
 
1. India violated Articles 4.1(a)  and 4.2(a)  of the Agreement on Safeguards  
 
26. First, India failed to provide an adequate explanation of the "bearing " or "effect " that the 
relevant factors had on the situation of the domestic industry. Not any injury can justify the 
imposition of a safeguard measure. The Appellate Body underlined that the standard of "serious 
injury " is, on its face, "very high " and "exacting. " To establish serious injury, the competent 
authorities must evaluate "all relevant factors ". This evaluation is not simply a matter of form since 
the competent authorities must conduct a substantive evaluation of the "bearing " or "effect " that 
the relevan t factors have on the situation of the domestic industry such as to be able to make a 
proper overall determination as to whether the domestic industry suffers serious injury or threat 
thereof.  In carrying out this analysis,  the competent authorities ' expla nation must "fully [address] 
the nature, and, especially, the complexities, of the data, and responds to other plausible 
interpretations of that data. " In that regard, India errs when arguing that the competent authorities 
are not required to examine the b earing of the injury facto rs explicitly listed in Article  4.2(a). 
Furthermore, while Japan agrees that not all injury factors need to show a negative trend, contrary 
to what India argues, if certain injury factors show that the domestic industry is doing w ell, the 
competent authorities must explain how those positive factors do not negate the finding of serious 
injury based on other factors showing a negative trend.  
 
27. Turning to the facts of the case, Japan submits that the Indian authority did not condu ct a 
substantive evaluation of all relevant factors such as to make a proper overall determination that 
the domestic industry is seriously injured by the increased imports. In particular, there is no 
adequate explanation of the "bearing " or "effect " that t he decline in market share, prices and 
profitability had on the overall situation of the domestic industry.  
 
28. The Indian authority first erred in its analysis of the "market share " of the domestic industry. 
To start with, the Indian authority failed to consider how the "decline in market share " of the 
domestic industry ties in with the overall position of the domestic industry in a market where 
domestic demand is expanding. Indeed, t he Indian authority 's analysis seems to rely on the 
assumption that the domestic industry  should have maintained or expanded its market share in an 
expanding  market. The Indian authority , however,  did not provide any explanation as to why this 
assumption could be made . Then, the Indian authority failed to evaluate the captive segment in 
considering the decline in market share of the domestic industry. Finally, the Indian authority 
overestimated the impact of the decrease in market share of the domestic industry. Indeed, it 
appears that the decrease in the market share of the do mestic industry in the non -captive segment WT/DS518/R/Add.1  
 
- 26 - 
 
  identified by India was partly due between 2013 -2014 and 2014 -2015 to an increase in the market 
share of the captive sales of the domestic industry.  
 
29. The Indian authority also erred in its analysis of the "domestic prices ". Indeed, while the 
Indian authority considered that the effect on domestic prices was an important factor for the 
determination of serious injury, it merely noted that the domestic prices decreased from 100 to 83 
but did not make any analy sis of the effect of this factor on the financial condition of the domestic 
industry, taking into account that cost reduction occurred simultaneously. Moreover, an explanation 
based exclusively on indexed data is insufficient to show that the decrease in d omestic prices led to 
financial losses. Furthermore, the exclusion of information concerning the captive market left the 
Indian authority  without explanation of the overall state of the domestic industry.   
 
30. The Indian authority further erred in its ana lysis of the "profitability " of the domestic industry. 
Indeed, the Indian authority failed to take into account the data pertaining to the entire POI since it 
focused exclusively on the data from the most recent past. In addition, the Indian authority did not 
consider the captive segment of the domestic industry in evaluating profitability.  
 
31. Finally, the Indian authority failed to provide a reasoned and adequate explanation of how the 
injury factors showing a stable or positive trend did not negate the  findings of serious injury . Most 
injury factors in this case (namely production sales, capacity utilization, employment, productivity 
and inventories) showed a stable or positive trend during the POI. Taking into account that the injury 
evaluated in the c ontext of the Agreement on Safeguards must be an "overall impairment in the 
position of the domestic industry " for which the standard is very high, the Indian authority was 
required to provide a substantive and detailed explanation as to why those factors showing a stable 
or positive trend did not negate the finding of serious injury. Such analysis is, however, lacking in 
the Final Findings .  
 
32. Second , the Indian authority failed to make a determination of serious injury based on 
"objective data " as requ ired by Article 4.2(a) of the Agreement on Safeguards for two reasons.  
 
33. The first reason is that, when examining the figures of inventories, production and sales for a 
given year of the POI, these figures do not match. In other words, taking the figure  of inventories 
at the beginning of the year, adding the production figure, subtracting the amount of sales and 
ending inventories, there remains a substantial amount. The export sales figures found in the 
Investigation File do not permit to explain this a mount. This seems to imply that some of the figures 
concerning the injury analysis (production, inventories or sales) might  have been misreported in the 
analysis of the Indian authority and therefore that the injury analysis was not based on "objective 
data". 
 
34. The second reason is that , in examining the injury factors, the Indian authority treated data 
of Q1 of 2015 -2016 as being representative for the entire year 2015 -2016. In other words, the 
Indian authority annualized the Q1 data to cover the period  until 31 March 2016. The Indian 
authority, however, failed to explain why annualization was reasonable. It therefore failed to make 
a determination of serious injury that is based on objective data.  
 
2. India violated Articles 4.1(b) and 4.2(a) of the Agreement on Safeguards  
 
35. Japan submits that India acted inconsistently with the Agreement on Safeguards since it made 
a determination of "threat of further  serious injury " or "further  threat of greater  serious injury " which 
is not provided under the re levant provisions of that Agreement. Indeed, the Agreement on 
Safeguards provides that safeguard measures may be applied if there is "serious injury " or "threat 
of serious injury ". In fact, if there is "serious injury ", there is no need to make a prospecti ve analysis 
about how this serious injury may evolve in the future.  
 
36. Even if it were to be concluded that the Indian authority made a determination of "threat of 
serious injury ", it does not meet the standard set out in Articles 4.1(b) and 4.2(a) whic h involves 
making fact -based projections concerning future developments of the domestic industry 's conditions.  
 
37. First, there is no fact -based assessment of likely development in the near future because there 
is no analysis of factual data concerning "surplus production capacities ". Moreover , the Indian 
authority failed to explain how and to what extent these surplus production capacities would lead to 
additional production being exported to the Indian market.  Second , while "the competent authorities WT/DS518/R/Add.1  
 
- 27 - 
 
  must evaluate all relevant injury factors ," the Indian authority failed to do so because it did not 
make any assessment at all regarding the other factors, namely production, sales, market share, 
profitability, etc. Third, even if India argues that the fac tors examined in determining serious injury 
to the domestic industry are also relevant in determining threat of serious injury to the domestic 
industry , such determination is also defici ent for the same reasons as those described in the section  
concerning "serious injury ". 
 
3. India violated Article 2.1 of the Agreement on Safeguards a nd Article XIX:1(a) of the 
GATT  1994 
 
38. As demonstrated above, the Indian authority failed to properly evaluate and give a reasoned 
and adequate explanation of its determina tion concerning serious injury and threat of serious injury 
to the domestic industry. Consequently, India also violated Article 2.1 of the Agreement on 
Safeguards and Article XIX:1(a) of the GATT 1994.  
 
F. India violated Articles 2.1, 4.2(a) and 4.2(b) of the Agreement on Safeguards and 
Article XIX:1(a) of the GATT 1994 with respect to its determination of the causal link 
between the increase in imports and the serious injury and threat thereof  to the domestic 
industry  
 
1. India violated Article 4.2(b) of the Agreement on Safeguards  
 
a. Failure to establish the existence of a causal link between the alleged increased imports 
and the alleged serious injury and threat thereof to the domestic industry  
 
39. Japan submits that India violated Article 4.2(b) of t he Agreement on Safeguards by failing to 
establish the existence of a causal link between the alleged increased imports and the alleged serious 
injury and threat thereof to the domestic industry.  
 
40. First, the Indian authority failed to show the existenc e of an overall coincidence in time 
between the movements in imports and the movements in injury factors. Indeed, the Indian 
authority merely compared the starting point in 2013 -2014 with the end point in Q1 of 2015 -2016 
(or 2015 -2016 annualized) . Furtherm ore, the Indian authority 's analysis includes a comparison of 
the relationship between the movements in import  volume  with only two injury factors  and thus not 
of all injury factors.  In fact, the data reveal that there was no clear "overall coincidence " in time. It 
follows that there was no basis for a finding of existence of a causal link between the increased 
imports and the serious injury  or threat thereof to the domestic industry . 
 
41. Second , in the absence of an overall coincidence between the movements in imports and the 
movements in injury factors , it was necessary for the Indian authority to provide a compelling 
explanation as to why a causal link nevertheless existed . However, t he Indian authority, failed to 
provide such an explanation.  
 
42. Indeed, the Indian authority 's conclusion that the decreasing price of the imports prevented 
the domestic industry from sustaining its prices  is baseless. First, a simple comparison between the 
unit average price of imported products and the unit average price of domestic products  is unreliable 
as it ignores the fact that large differences in categories and prices between the various products 
included in the "products concerned " may distort the comparability of the average prices. Second , 
no meaningful con clusion can be derived from an end -to-end comparison of the results in  2013-
2014 and 2015 -2016 (Q1) since such comparison cannot show the existence or the extent of 
causation. Third, the explanations are based on indexed data which do not allow the authori ty to 
draw any meaningful conclusion. Fourth,  a simple comparison of two prices, whether it is based on 
actual figures or index data, does not explain whether there is any causation between the two  prices 
or which price is the cause and which price is the effect  because there may be other factors having 
an impact on domestic prices.   
 
43. Furthermore, the Indian authority 's conclusion that the imports prevented the domestic 
industry from increasing its production and sales compared in proportion to the incr ease in 
demand/consumption is also baseless. Indeed, this conclusion is based on the assumption that the 
domestic industry should be able to increase its production and sales in proportion to the increase 
in demand/consumption in the absence of increased i mports. The Indian authority, however, failed 
to provide any explanation  for this assumption. In fact, t he Indian authority did not examine the WT/DS518/R/Add.1  
 
- 28 - 
 
  possibility that the domestic industry was not able to increase its production and sales proportionally 
to incre ased demand in the absence of increased imports because of factors other than increased 
imports.  
 
44. Finally, the Indian authority 's conclusion that the imports led to a sharp decline in profitability 
and to losses recorded by the domestic Industry also l acks any adequate explanation. Indeed, while 
the Indian authority 's conclusion is based on its findings that t he imports prevented the domestic 
industry from sustaining its prices  and increasing its production and sales in proportion to the 
increase in dem and/consumption, these findings are baseless for the reasons explained above. 
Moreover, with regard to the relationship between profitability, on the one hand, and import 
volumes/price and domestic volumes/price, on the other hand, no meaningful conclusion  can be 
derived from an end -to-end point comparison  
 
b. Failure to demonstrate that the alleged serious injury and threat thereof caused to the 
domestic industry by factors other than the increased imports was not attributed to 
increased imports  
 
45. Pursuant to Article 4.2(b), second sentence, when factors other than increased imports are 
causing injury at the same time as increased imports, competent authorities must ensure that the 
injury caused by such other factors is not attributed to the increas ed imports. The competent 
authorities are required to explain the particular process they have used to separate and distinguish 
other causal factors and how they have ensured that injury caused by such other factors was not 
included in the assessment of th e injury caused by increased imports. Furthermore, when the 
competent authorities determine that there are no other factors causing injury at the same time as 
increased imports, or that factors argued to be causing injury are not, in fact, doing so, this, must 
be stated explicitly in the published report, accompanied with an explicit and adequate explanation.  
 
46. Contrary to what India claims, the text of Article 4.2 does not support the understanding that 
the obligation to carry out the non -attribution a nalysis under Article 4.2(b) is limited only to the 
factors that have been identified as "relevant factors " under Article 4.2(a). The "relevant factors of 
an objective and quantifiable nature having a bearing on the situation " of the domestic industry 
referred to in Article 4.2(a) are those that must be examined in the context of the serious injury 
analysis as they are indicative of the state of the domestic industry. The "other factors " examined 
under Article 4.2(b) are those which have an effect on the st ate of the domestic industry.  
 
47.  In the present case,  India violated Article 4.2(b) by failing to ensure that the alleged serious 
injury and threat thereof caused by factors other than the increased imports was not attributed to 
the increased imports fo r the following reasons.  
 
48. At the outset, it should be noted that  the Indian authority did not conduct a specific non -
attribution analysis as  the sections concerning the causal link between increased imports and the 
serious injury or threat of serious i njury in the Preliminary Findings and Final Findings are silent on 
the issue of other factors that could be causing injury to the domestic industry.  
 
49. In any event, the analysis of the Indian authorit y attributing the alleged injury of the domestic 
industry solely to the increased imports does not meet the standard of a "reasoned and adequate " 
explanation . First, while in the Final Findings the Indian authority noted that "[i]nterested parties 
have submitted that injury being suffered by the domestic in dustry is due to their own internal 
factors ", it failed to properly examine those factors. Indeed, its cursory analysis does not include a 
clear determination that the identified factors are not causing injury to the domestic industry nor an 
explanation wh y this is so. Second , while the Indian authority addressed the argument concerning 
the sales by other Indian producers, it failed to expressly determine that such factor is not causing 
injury to the domestic industry and did not provide a reasoned and adequate explanation why  it is 
so. Third, with regard to the argument concerning captive sales, the Indian authority should have 
examined whether such factor was not causing injury to the domestic industry and should have 
provided a reasoned and adequate explanation why such fact or did not or could not cause injury to 
the domestic industry. Fourth , while various interest ed parties pointed out during the investigation 
that the decline in profitability of the domestic industry might be the result of  factors other than the 
alleged in creased imports, the Indian authority  failed to examine and  determine that those other 
factors were not the cause. Finally , for the purpose of the non -attribution analysis, India failed to 
distinguish the impact of imports caused by the unforeseen developm ents and the effect of the 
obligations incurred under the GATT 1994 from the impact of imports caused by other reasons . WT/DS518/R/Add.1  
 
- 29 - 
 
  2. India violated Articles 2.1  and 4.2(a) of the Agreement on Safeguards and Article XIX:1(a) of 
the GATT 1994  
 
50. The fact that India failed to demonstrate the causal link between the alleged increased imports 
and the alleged serious injury or threat thereof implies that India has violated not only Article 4.2(b) 
but also Article 2.1 of the Agreement on Safeguards a nd Article XIX:1(a) of  the GATT  1994. 
Furthermore, pursuant to Article 4.2(b), a causal link must be established, through an investigation 
described in Article 4.2(a), between the increased imports, on the one hand, and the serious injury 
or threat thereof, on the other hand. I t follows that India also acted inconsistently with Article 4.2(a).  
 
G. India violated Articles 5.1 and 7.1 of the Agre ement on Safeguards and 
Article  XIX:1(a) of the GATT 1994 with respect to the imposition of the safeguard 
measures to the extent and for  such time necessary to prevent or remedy serious injury  
 
51. The requirements that a safeguard measure be limited to "the extent necessary " and "only for 
such period of time as may be necessary " to prevent or remedy serious injury " in Article 5.1, first 
sentence, and in Article 7.1 must be read as requiring that safeguard measures be applied only to 
the extent that they address serious injury attributed to increased imports. According to the 
Appellate Body, the violation of Article 4.2(b) is thus a suffici ent basis to make a prima facie  case 
that the safeguard measure has not been applied "to the extent necessary to prevent or remedy 
serious injury " under Article 5.1. This equally applies to the require ment of Article 7.1 and 
Article  XIX:1(a) of the GATT 19 94.  
 
52. In the present case, the Indian authority failed to make a proper causation and non -attribution 
analyses, thereby violating Article 4.2(b) of the Agreement on Safeguards. The Indian authority was 
thus unable to ensure that the safeguard measures were applied only to the extent and only for such 
a period of time necessary to address the serious injury attributed to increased imports.  
 
H. India violated Articles 3.1 and 4.2(c) of the Agreement on Safeguards  
 
53. It has been demonstrated that the Indian authority failed to provide in its Preliminary Findings 
and Final Findings a reasoned and adequate explanation of its determination concerning the 
unforeseen developments, the effects of the obligations incurred und er the GATT  1994, the increase 
in imports, the domestic industry, the serious injury and threat thereof, the causal link and of the 
imposition of the measures to the extent and for the time necessary to prevent or remedy serious 
injury. Thereby, Japan has also demonstrated that India violated Article 3.1, last sentence, and 
Article 4.2(c) of the Agreement on Safeguards as the Preliminary Findings and the Final Findings do 
not set forth findings and reasoned conclusions for all pertinent issues of fact and l aw. 
 
I. India violated Article 11.1(a) of the Agreement on Safeguards  
 
54. Japan has  demonstrated that the safeguard measures imposed by India violated Articles 2.1, 
3.1, 4.1(a), 4.1(b), 4.1(c), 4.2(a) , 4.2(b) , 4.2(c), 5.1 and 7.1  of the Agreement on Safeg uards  as 
well as Article XIX:1(a) of the GATT 1994. As a result, India also violated Article 11.1(a) of the 
Agreement on Safeguards.  
 
V. INDIA ACTED INCON SISTENTLY WITH THE P ROCEDURAL REQUIREMEN TS UNDER 
ARTICLE 12 OF THE AG REEMENT ON SAFEGUARD S AND ARTICLE XIX:2 O F THE GATT  1994   
 
55. First, India acted inconsistently with Article 12.4 of the Agreement on Safeguards . That 
provision imposes an obligation for the Member imposing a provisional safeguard measure to notify 
such measure before taking  it. India does not dispute the fact that the provisional measure was 
notified after the measure was taken. This constitutes a clear violation of Article 12.4.  
 
56. Second, India acted inconsistently with Article 12.1 of the Agreement on Safeguards . The 
notifications were made  only after the following number of days passed,  pursuant to Article  12.1(a) 
8 days; pursuant to Article 12.1(b) 6 days and pursuant to Article 12.1(c) 6 days. Japan submits 
that as a result of such delays, the notifications were not "immediate ", taking into account that the 
notifications were not complex and did not have to be translated.  
 
57. Third, India violated Article 12.2 of the Agreement on Safeguards because India 's notification 
of 21 March 2016 failed to provide the following  information: information on the causal link between WT/DS518/R/Add.1  
 
- 30 - 
 
  the increased imports and the serious injury or threat thereof;  a precise description of the product 
involved;  a precise description of the scope of the proposed measure; and  the proposed date of 
introduction of the proposed measure.   
 
58. Fourth, India failed to comply with Article 12.3 of the Agreement on Safeguards . Indeed, India 
failed to provide Japan with sufficient information and with sufficient time  to allow for the possibility, 
through co nsultations, for a meaningful exchange of views on the issues identified.  
 
VI. INDIA VIOLATE S ARTICLE II:1(B) AND  ARTICLE I:1 OF THE GATT 1994   
 
A. India violates Article II:1(b) of the GATT 1994  
 
59. India violates Article II:1(b) of the GATT 1994 since,  through the measures at issue, it imposes 
"other duties or charges " contrary to the second sentence of that provision. While the impugned 
measures are duties levied by customs, considering their design and structure, they are of an 
"extraordinary " nature and therefore qualify as "other duties or charges " and not as "ordinary 
customs duties " under Article II:1(b) of the GATT 1994. Since the duty at issue is not recorded in 
India's Schedule of Concessions in the column "other duties or charges " and does not correspond to 
duties or charges that India applied at the date of entry into force of the GATT 1994 or was required 
to apply as a direct and mandatory consequence of legislation in force on that date, the measures  
at issue are inconsistent wi th Article II:1(b) of the GATT 1994.  
 
B. India violates Article I:1 of the GATT 1994  
 
60. India violates Article I:1 of the GATT 1994 since the safeguard duty is not applied to the 
products concerned originating in certain countries and this constitutes a n advantage that is not 
accorded immediately and unconditionally to the like products originating in other WTO Members 
including Japan.  
 
 
 WT/DS518/R/Add.1  
 
- 31 - 
 
  ANNEX B -2 
SECOND I NTEGRATED EXECUTIVE SUMMARY  
OF THE ARGUMENTS OF JAPAN  
I. INDIA ACTED INCONSISTENTLY WITH THE SUBSTANTIVE REQU IREMENTS UNDER 
THE AGREEMENT ON SAF EGUARDS AND ARTICLE XIX:1(A) OF THE GATT  1994  
 
A. India acted inconsistently with Article XIX:1(a) of the GATT 1994 with respect to its 
determination on unforeseen developments  
 
1. India failed to demonstrate the existence of "unforeseen developments " 
 
1. First, by failing to clearly indicate in the Preliminary Findings and the Final Findings whether 
it was the confluence of events rather than the events taken separately that were co nsidered as the 
"unforeseen developments ", the Indian authority failed to properly identify the alleged unforeseen 
developments. Contrary to what India argues, the mere reference to the Panel Report in US – Steel 
Safeguards  does not make it evident that th e Indian authority considered that it was the confluence 
of events that constituted the "unforeseen developments ".  
 
2. Second, India failed to provide a reasoned and adequate explanation why the relevant events 
constituted the "unforeseen developments ". India's interpretation that Article XIX:1(a) of the GATT 
1994 only requires a "discussion " and not an "analysis " of unforeseen developments whereby the 
competent authorities should merely identify events that they present as being unforeseen is 
manifestly e rroneous. Indeed, as clarified by the Appellate Body, in order to satisfy the requirement 
to demonstrate the existence of "unforeseen developments " the competent authorities must discuss 
or offer an explanation "as to why [the identified] changes could be regarded as 'unforeseen 
developments ' within the meaning of Article XIX:1(a) of the GATT 1994. " 
 
3. Third, the fact that the Indian authority concluded that the events were unforeseen for the 
domestic industry does not mean that these events were unforeseen for India, as required by Article 
XIX of the GATT 1994. India failed to rebut Japan 's argument.  
 
2. India failed to demonstrate the existence of a "logical connection " between the unforeseen 
developments and the increase in imports causing or th reatening to cause serious injury to the 
domestic industry  
 
4. Although India agrees that there must be a logical connection between the unforeseen 
developments and the increase in imports causing serious injury or threat thereof, India appears to 
implicit ly consider that merely claiming that there is a "logical connection " is sufficient to comply 
with Article XIX. According to India the "logical connection " test is of a lesser threshold when 
compared to the "causal link " test. This interpretation of the "logical connection " requirement must 
be rejected. First, the issue is not to determine whether the "logical connection " is of a lesser or a 
higher threshold than the "causal link " test. Second , there is no textual support to the position that 
the "logical c onnection " requirement is of a lesser threshold than the "causation " requirement. Third, 
India errs in considering that merely claiming that there is a "logical connection " between the 
unforeseen developments and the increased imports is sufficient to comply with Article XIX:1 of the 
GATT 1994. Indeed, the "logical connection " entails the obligation for the competent authorities to 
explain how the unforeseen developments hav e the effect  or outcome  of resulting in an increase in 
imports which has caused or is threatening to cause serious injury to the domestic industry.  
 
5. In the present case, the Indian authority failed to demonstrate the existence of the "logical 
connection " for three reasons. First, the Indian authority failed to explain how imports of the 
products concerned increased as a result  of the alleged unforeseen developments. In that regard, 
Japan submits that since there is no clear and automatic link between the  identified events and the 
increased imports into India causing or threatening to cause serious injury  to the domestic industry , 
the Indian authority was required to provide a more detailed analysis including the examination of 
how the alleged unforeseen d evelopments have modified the competitive relationship between the 
imported and domestic products to the detriment of the latter and to such a degree as to result in WT/DS518/R/Add.1  
 
- 32 - 
 
  an increase in imports causing or threatening to cause serious injury to the domestic indu stry. 
Furthermore, to the extent the Indian authority relied on events which relate to certain specific 
countries, it had to explain why each of those events resulted in increased exports from those 
countries and why this caused other countries , with respe ct to which India failed to provide any 
explanation, to export more to India, in order to explain that those "unforeseen developments " 
collectively resulted in the alleged increase in imports causing serious injury to its domestic industry. 
Finally, since the increase in imports must occur "as a result of " unforeseen developments, the 
Indian authority was required to demonstrate that the events identified as unforeseen developments 
occurred before the imports started to surge. T he fact that in its response to the Panel 's questions 
India stated that "the 'unforeseen developments ' occurred prior to the increase in imports of PUC 
into India " cannot cure the deficiency of the Indian authority 's published report. In any event, such 
statement lacks any basis and c ontradicts the information on the record.  
 
6. Second, the Indian authority failed to explain the impact of the "unforeseen developments " 
on the specific products at issue as the relevant developments refer to "steel" in general. India 's 
responses to the Panel 's questions confirm that India failed to examine the relation between the 
alleged unforeseen developments and the increase in imports of the specific products concerned , 
thereby failing to demonstrate the "logical connection " required by Article XIX: 1(a) of the 
GATT  1994.  
 
7. Third, the Indian authority failed to provide supporting data to substantiate the assertion that 
the unforeseen developments resulted in  the increase in imports causing or threatening to cause 
serious injury to the domestic indu stry. Contrary to what India argues, the fact that the Indian 
authority provided data concerning the increase in imports is not sufficient. The lack of supporting 
data is confirmed by India 's responses to the Panel 's questions. Indeed, while India refers t o the 
data submitted by the applicants with regard to the alleged huge production capacities developed in 
China, Russia, Ukraine, Japan and Korea, Japan has failed to find those data in the Application. In 
any event, the analysis included in the Final Find ings contains no reference to the specific evidence 
submitted by the applicants. India also confirmed that, while the Indian authority concluded that 
India was the "natural choice " for export, it failed to establish the connection between the alleged 
exces s capacities in certain exporting countries and the increase in imports into India by not 
examining whether there were alternative markets with increasing demand and high prices that 
could absorb those excess capacities.  
 
B. India acted inconsistently with  Article XIX:1(a) of the GATT 1994 with respect to its 
determination on a "logical connection " between the effect of the obligations incurred 
under the GATT 1994  and the increase in imports causing or threatening to cause serious 
injury to the domestic ind ustry  
 
8. First, India mischaracterizes the obligation to demonstrate a "logical connection " between 
tariff concessions and increased imports. Contrary to what India argues, merely indicating that the 
importing Member has made tariff concessions does not in itself prove a logical connection between 
those concessions and the increase in imports. R ather, the "logical connection " entails the obligation 
for the competent authorities to explain how the GATT obligations prevented the importing member 
from addressing the increase in imports allegedly causing serious injury or threat thereof to the 
domest ic industry.  
 
9. Second, contrary to what India argues, the Final Findings fail to demonstrate the logical 
connection between the obligations incurred by India under the GATT 1994 and the increase in 
imports. While the Final Findings identify India 's bound  rate of 40% , the Indian authority failed to 
demonstrate how that concession of 40% prevented it from addressing the increase in imports 
causing or threatening to cause serious injury.  
 
10. Third, India 's reference to the obligations incurred under Article  XXIV of the GATT 1994 is 
without merit. Indeed, the Indian authority did not identify Article XXIV of the GATT 1994 as one of 
the obligations incurred under the GATT that was constraining its freedom of action and, in any case, 
Article XXIV of the GATT 19 94 does not impose an obligation on the importing Member to apply a 
specific duty rate on imports from its FTA/RTA partners.  
 WT/DS518/R/Add.1  
 
- 33 - 
 
  C. India acted inconsistently with Articles 2.1, 3.1, 4.2(a) and 4.2(c) of the Agreement 
on Safeguards and Article XIX:1(a) of the  GATT 1994 with respect to its determination of 
an increase in imports  
 
11. Japan submits that, contrary to what India argues, Japan has substantiated its claim under 
Article 2.1 of the Agreement on Safeguards and thus India 's argument that the Panel cannot make 
findings under Article 2.1 should be rejected.  
 
12. Japan further submits that since the Indian authority has failed to demonstrate the logical 
connection between the unforeseen developments and the effect of the obligations incurred under 
the GATT 1994, on the one hand, and the increased imports, on the other hand, it has failed to 
demonstrate an increase in imports based on imports arising "as a result " of the unforeseen 
developments and the effect of the obligations incurred under the GATT 19 94.  
 
13. Japan has also demonstrated that the Indian authority failed to make a qualitative analysis of 
the "increase in imports " since its analysis did not enable it to ensure that the increase in imports 
was recent enough, sudden enough, sharp enough an d significant enough, both quantitatively and 
qualitatively, to cause or threaten to cause serious injury. More specifically, by focusing on the 
occurrence of an increase in imports between 2013 -2014 and the first quarter of 2015 -2016, the 
Indian authority  could not ensure that this upward trend over such a short period was not simply a 
recovery or a return to a previous level of imports. The lack of qualitative analysis is particularly 
striking when the data of the imports relating to 2011 -2012 and 2012 -2013 is examined. In order 
to make a qualitative analysis, the Indian authority should have evaluated the real significance of 
this short -term trend during the POI in light of longer -term trends or any other methods such as to 
ensure that this short -term upw ard trend was recent enough, sudden enough, sharp enough and 
significant enough, both quantitatively and qualitatively.  
 
14. Furthermore, India failed to demonstrate an increase in imports that is based on "objective 
data" because India relied on annualize d data for 2015 -2016 without explaining why annualization 
was appropriate in light of the circumstances of this case. While Japan does not take issue with the 
annualization of data as such , Japan considers that, when using that method, the competent 
author ities are required to explain why the yielded results are representative for the entire year and 
why the simple annualization of data is appropriate for the purpose of comparison with the annual 
data from previous years.  
 
15. Finally, Japan submits that, even if it were to be concluded that the Indian authority did not 
fail to make a qualitative analysis that is based on "objective data, " India nonetheless acted 
inconsistently with Articles 2.1 and 4.2(a) of the Agreement on Safeguards and Article XIX:1(a)  of 
the GATT 1994 since it failed to provide a reasoned and adequate explanation on how it determined 
that the increase in imports was recent enough, sudden enough, sharp enough and significant 
enough, both quantitatively and qualitatively, to cause or thr eaten to cause "serious injury ". India 
did not address that claim.  
 
D. India acted inconsistently with Articles 2.1, 4.1(a), 4.1(b), 4.1(c), 4.2(a) and  4.2(b) 
of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 with respect to its 
determination of the domestic industry  
 
1. India acted inconsistently with Article 4.1(c) of the Agreement on Safeguards  
 
16. In all circumstances where the domestic industry does not cover the producers of the product 
concerned as a whole, the competent a uthority needs to ensure that the manner in  which it defines 
the domestic industry does not introduce a material risk of distortion. Contrary to what India argues, 
the mere fact that the domestic producers represented 67% of the domestic production does no t 
automatically imply that there was no material risk of distortion in the definition of the domestic 
industry. In fact, the "major proportion " test is not a purely quantitative test. A "major proportion " 
should be understood as "a relatively high proporti on that substantially reflects the total domestic 
production ". It has "both quantitative and qualitative connotations ". 
 
17. In the present case, there is a material risk of distortion  that stemmed from the self -selection 
process of the domestic producers included in the definition of the domestic industry. Indeed, the 
domestic producers themselves selected those producers to be included in the domestic industry. 
The purely quantitative approach followed by the Indian authority, whereby it accepted the dome stic WT/DS518/R/Add.1  
 
- 34 - 
 
  industry as proposed by the applicants simply because they represented more than 50% of the 
domestic production, cannot exclude the possibility that the domestic producers purposively decided 
to include in the domestic industry only the low performing  producers while ignoring the high 
performing producers. The information submitted in the application to the Indian authority clearly 
show that the domestic producers not included in the domestic industry performed substantially 
differently from those incl uded in the domestic industry. This confirms that the domestic industry 
did not substantially reflect  the total domestic production.  
 
2. India acted inconsistently with Articles 2.1, 4.1(a), 4.1(b), 4.2(a) and 4.2(b) of the Agreement 
on Safeguards  and Article XIX:1(a) of the GATT 1994  
 
18. Since the domestic industry has been defined in a manner th at is inconsistent with 
Article  4.1(c), the injury and causation determinations are consequently also inconsistent with 
Articles 2.1, 4.1(a), 4.1(b), 4.2(a) and 4.2(b) of the Agre ement on Safeguards and Article  XIX:1(a) 
of the GATT 1994.  
 
E. India acted inconsistently with Articles 2.1, 4.1(a), 4.1(b)  and 4.2(a)  of the 
Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 with respect to its 
determination of serious injury and threat thereof   
 
1. India's determination of serious injury is inconsistent with Articles 4.1(a)  and 4.2(a)  of the 
Agreement on Safeguards  
 
19. First, Japan submits that India mischaracterizes the standard of "serious injury ". Indeed, 
contrary to what India appears to argue, not any injury can justify the imposition of a safeguard 
measure. India also misrepresents the obligations imposed on the competent authorities in the 
context of the serious injury analysis. Article 4.2(a)  expressly states that the competent authorities 
shall "evaluate " all relevant factors including those specifically listed in that provision. While not all 
injury factors need to show a negative trend, the competent authorities are nonetheless required to 
carefully analyze each of the injury factors before they can make an overall determination as to 
whether there is a serious injury. This also implies that, if certain injury factors show that the 
domestic industry is doing well, the competent authorities m ust explain how those positive factors 
do not negate the finding of serious injury based on other factors showing a negative trend. Without 
such an explanation, the competent authorities are not in a position to reach a reasoned and 
adequate conclusion wit h regard to the existence of serious injury.  
 
20. Second, India failed to explain the "bearing " of the relevant injury factors on the situation of 
the domestic industry. With respect to the analysis of market share, India erroneously argues that 
it only ha d to establish that the domestic industry lost its market share to imports. The substantive 
evaluation required by Article 4.2(a) implies that the Indian authority should have considered the 
decline in market share against the domestic industry 's sales in absolute terms as well as other 
elements. In any event, India failed to establish that "the market share of the domestic industry has 
[been] taken away by the increased imports " since no meaningful conclusion could be drawn from 
merely comparing the change  in the market share of the imported and domestic products. Japan 
also submits that by looking only at the figures relating to non -captive market, the Indian authority 
examined only one part of the domestic industry. While India argues that the captive seg ment did 
not have "any bearing on the performance of the domestic industry ", there is nothing on the record 
that would support this assertion. At the very least the Indian authority should have explained why 
the performance of the captive segment did not n egate its finding of serious injury and threat thereof 
based on the examination of the non -captive segment of the market.  
 
21. With respect to the analysis of prices, Japan reiterates that without absolute figures or an 
adequate explanation, it is impossib le to draw any meaningful conclusions regarding the "bearing " 
that the price decrease had on the financial situation of the domestic industry. Furthermore, to the 
extent that the information concerning captive sales was excluded from the price analysis, th e Indian 
authority was required to conduct a separate analysis of such captive sales or explain why such 
analysis was not necessary  despite the fact that it had relevant data regarding the captive segment 
of the domestic industry . With respect to the India n authority 's analysis of profitability, although 
India argues that it "has adequately analyzed the profitability over the entire investigation period ", 
the Preliminary Findings and the Final Findings refer only to the decrease in profitability that occurr ed 
in Q1 of 2015 -2016 and thus fail to take into account the increase in profitability that took place 
between 2013 -2014 and 2014 -2015. Furthermore, as confirmed by India, the Indian authority did WT/DS518/R/Add.1  
 
- 35 - 
 
  not consider the captive segment of the domestic industry i n evaluating profitability. While India 
argues that the captive production should be considered in the context of all injury factors except 
sales and profitability, this position has no textual basis in the Agreement on Safeguards. 
Furthermore, accepting I ndia's position would lead to a distorted analysis of the situation of the 
domestic industry as the captive market would be analysed in the context of some injury factors but 
not others . Finally, the Indian authority erred in its evaluation of the overall position of the domestic 
industry because it failed to provide a reasoned and adequate explanation of how the injury factors 
showing a stable or positive trend did not negate the competent authority 's findings of serious injury. 
While Japan agrees that not  all injury factors need to show a negative trend in order to warrant a 
finding of a serious injury, when certain injury factors demonstrate a positive trend, it is up to the 
competent authority to explain how this fact affects the finding of an overall se rious injury. This 
understanding is supported by the panel 's findings in Dominican Republic – Safeguards Measures , 
which contrary to what India argues are relevant to the present case.  
 
22. Third, India failed to base its determination on "objective data ". First, India does not rebut 
Japan 's prima facie  case that the determination of serious injury is not based on "objective data " 
when taking into account the data available in the record which, clearly do not match. Indeed, 
although India asserts that the exact matching of the figures of inventories, production and sales 
for a given year of the POI is not possible, it failed to sub stantiate that assertion. Second, India 's 
argument that the annualization of data for Q1 of 2015 -2016 was performed to "make figures of 
different periods comparable ", ignores the fact that the Indian authority should have explained why 
the yielded results were representative for the entire year and why the simple annualization of data 
was appropriate for the purpose of comparison with the annual data from previous years.  
 
2. India's determination of threat of serious injury is inconsistent with  Articles 4. 1(b) and  4.2(a) 
of the Agreement on Safeguards  
 
23. Japan submits that India 's determination of "further threat of greater serious injury " lacks any 
legal basis in the Agreement on Safeguards which provides for a determination of "serious injury " 
and "threat of serious injury ". In any event, such a determination is irrelevant because a 
determination of further threat of greater serious injury " is entirely dependent on a prior finding of 
"serious injury ". To the extent India is now trying to argue that t he Indian authority made a 
determination of "threat of serious injury " within the meaning of the Agreement on Safeguards, this 
constitutes an ex post  explanation that has no support in the text of the Final Findings and should 
be rejected by the Panel. In any event, even if the finding of "further threat of greater serious injury " 
made by the Indian authority was to be considered as a finding of "threat of serious injury " – quod 
non – that finding fails to comply with the various requirements set out in Articles  4.1 and 4.2 of the 
Agreement on Safeguards.  
 
3. India acted inconsistently with Article 2.1 of the Agre ement on Safeguards and 
Article  XIX:1(a) of the GATT 1994  
 
24. Since th e Indian authority failed to properly evaluate and give a reasoned and adequate 
explanation of its determination concerning serious injury and threat of serious injury, it follows that 
the conditions for the imposition of safeguard measures were not met an d, as a consequence, India 
also acted inconsistently with Article 2.1 of the Agre ement on Safeguards and Article  XIX:1(a) of the 
GATT 1994. India has failed to rebut Japan 's arguments.  
 WT/DS518/R/Add.1  
 
- 36 - 
 
  F. India acted inconsistently with Articles 2.1, 4.2(a) and 4.2(b) of the Agreement on 
Safeguards and Article XIX:1(a) of the GATT 1994 with respect to its determination of the 
causal link between the increase in imports and the serious injury and threat thereof  to 
the domestic industry  
 
1. India violated Article 4.2(b) of t he Agreement on Safeguards  
 
a. India failed to establish the existence of a causal link  
 
25. India has failed to rebut Japan 's arguments that there was no basis for a finding of a causal 
link. Japan maintains that the Indian authority failed to demonstra te an "overall coincidence " in time 
between the movements in imports and the movements in injury factors, let alone a direct 
correlation between the two, as argued by India. In the present case, the analysis of all injury factors 
shows that there was no ov erall coincidence in time between the movements in imports and the 
movements in injury factors (other than market share). It follows that there was no basis for 
concluding that the increase in imports has caused serious injury or threat thereof to the dome stic 
industry. India did not respond to the argument that it failed to examine the relationship between 
the movements  in imports and the movements  in injury factors because instead of looking at the 
trends in imports and the injury factors, the Indian authority merely compared the starting point in 
2013-2014 with the end point in Q1 of 2015 -2016 (or 2015 -2016 annualized).  
 
26. Furthermore, the Indian authority failed to provide a compelling explanation as to why, in the 
absence of the coincidence in tim e, there was nevertheless a causal link between the alleged increase 
in imports and the alleged serious injury or threat thereof. First of all, the conclusion that the 
decreasing price of the imports prevented the domestic industry from maintaining its pri ces is 
baseless as the Indian authority failed to explain why the comparison of the average price of 
imported products and the average price of domestic products was appropriate given the numerous 
types of products concerned with very different prices. The  competent authorities can only reach a 
reasonable conclusion regarding the impact of the prices of imports on the domestic prices if they 
have first established that there is a price -based competition between the imported and domestic 
products. In any eve nt, the explanations provided by the Indian authority are not reasoned and 
adequate to the extent that they are based solely on the comparison of indexed data and since the 
analysis is based on an end -to-end comparison of the results in 2013 -2014 and Q1  of 2015-2016. 
Second, the conclusion that the imports prevented the domestic industry from increasing its 
production and sales compared to increase in demand/consumption is baseless. Since several 
elements could have an impact on the domestic industry 's inab ility to increase its production and 
sales in relation to the increase in demand/consumption despite the existence of spare capacity, 
without addressing such factors, the Indian authority could not properly explain why it considered 
that it was the imports  that prevented  the domestic industry from increasing its production and sales 
compared to increase in demand/consumption. Moreover, while India argues that "there was 
sufficient spare capacity available with the domestic industry and there were no constra ints on their 
ability to increase its production and sales, " the arguments submitted by the interested parties 
suggest otherwise. To the extent the Indian authority relied on the assumption that the domestic 
industry was able to increase its production and  sales, it was required to explain the basis for making 
such assumption. Third, Japan has demonstrated that the explanation provided by the Indian 
authority in the Preliminary and Final Findings did not warrant the conclusion that profitability 
declined an d the domestic industry recorded losses in the degree presented in the Final Findings due 
to the increased imports. The limited ex post  explanation provided by India in its first written 
submission cannot cure the deficiencies in the Indian authority 's findings.  
 
b. India failed to carry out a proper non -attribution analysis  
 
27. Japan has demonstrated that India acted inconsistently with Article 4.2(b) of the Agreement 
on Safeguards because it failed to ensure that the serious injury and threat thereof cau sed by factors 
other than the increased imports was not attributed to the increased imports. Contrary to what India 
argues, the obligation to carry out the non -attribution analysis is not limited only to the factors that 
have been identified as "relevant f actors " in the context of the injury analysis under Article 4.2(a). 
India also errs when arguing that Article 4.2(b) does not require any "independent evaluation " in 
addition to the analysis carried out under Article 4.2(a). Contrary to what India argues, 
Articles  4.2(a) and 4.2(b) impose distinct obligations on the compe tent authorities. While 
Article  4.2(a) focuses on the elements to be considered by the competent authorities in order to WT/DS518/R/Add.1  
 
- 37 - 
 
  demonstrate the existence of serious injury (or threat thereof), Art icle 4.2(b) relates to the 
demonstration of the causal link between such serious injury and the increased imports.  
 
28. In the present case, the Indian authority failed to meet its obligations under Article 4.2(b) 
because it failed to properly examine the other factors invoked by the interested parties in order to 
ensure that the injurious effects of those factors were not a ttributed to the increased imports. First, 
with regard to five factors addressed by the Indian authority at paragraphs 51 -52 of the Final 
Findings, the Indian authority failed to provide a clear determination that these factors were not 
causing serious inj ury to the domestic industry or an explanation why this is so. Second, the Indian 
authority failed to address at all other factors raised by the interested parties, namely  (i) changes 
in the market share of other Indian producers not included in the defini tion of the domestic industry, 
(ii) captive sales of the domestic industry, and (iii) other factors causing the decline in profitability. 
By ignoring such other factors, the Indian authority failed to make a proper non -attribution analysis.  
 
29. India did  not address Japan 's argument that it failed to distinguish the impact of imports 
caused by the unforeseen developments and the effect of the obli gations incurred under the 
GATT  1994 from the impact of imports caused by other reasons.  
 
c. India acted incon sistently with Articles 2.1  and 4.2(a) of the Agreement on Safeguards 
and Article XIX:1(a) of the GATT 1994  
 
30. Since India failed to demonstrate the causal link between the alleged increased imports and 
the alleged serious injury and threat thereof, India acted inconsistently not only with Article 4.2(b) 
but also with Articles 2.1 and 4.2(a) of the Agreement on Safeguards as well as Article XIX:1(a) of 
the GATT 1994. India has failed to rebut Japan 's arguments.  
 
G. India acted inconsistently with Arti cles 5.1 and 7.1 of the Agreement on Safeguards 
and Article XIX:1(a) of the GATT 1994 with respect to the imposition of the safeguard 
measures to the extent and for such time necessary to prevent or remedy serious injury  
 
31. Japan claims that India acted inconsistently with Articles 5.1 and 7.1 of the Agreement on 
Safeguards and Article XIX:1(a) of the GATT 1994 because it failed to apply the safeguard measures 
at issue only to the extent and for such time as necessary to prevent or remedy serious injury. 
Indeed, since the Indian authority failed to make a determination of the causal link between the 
increased imports and the alleged serious injury and/or threat the reof in accordance with 
Article  4.2(b), it was unable to ensure that the safeguard measures w ere applied only to the extent 
necessary and only for such a period as necessary to address serious injury attributed to increased 
imports. As confirmed by the Appellate Body in US – Line Pipe , the violation of the non -attribution 
obligation under Article 4.2(b) constitutes a sufficient basis to make a prima facie  case of violation 
of Articles 5.1 and 7.1.  
 
H. India acted inconsistently with Articles 3.1 and 4.2(c) of the Agreement on 
Safeguards  
 
32. Japan has demonstrated that the Indian authority failed  to provide in its Preliminary Findings 
and Final Findings a reasoned and adequate explanation of its various determinations. Thereby, 
Japan has also demonstrated that India acted inconsistently with its o bligations pursuant to 
Articles  3.1 and 4.2(c) of t he Agreement on Safeguards to publish a report that contains a detailed 
analysis of the case and sets forth findings and reasoned conclusions covering all pertinent issues of 
fact and law.  
 
I. India acted inconsistently with Article 11.1(a) of the Agreemen t on Safeguards  
 
33. It has been  demonstrated that the challenged safeguard measures are inconsistent with 
Articles 2.1, 3.1, 4.1(a), 4.1(b), 4.1(c), 4.2(a), 4.2(b), 4.2(c), 5.1 and 7.1 of the Agreement on 
Safeguards as well as Article XIX:1(a) of the GATT  1994. It follows that they are also inconsistent 
with Article 11.1(a) of the Agreement on Safeguards.  
 WT/DS518/R/Add.1  
 
- 38 - 
 
  II. INDIA FAILED TO COMPLY WITH THE PROC EDURAL REQUIREMENTS UN DER 
ARTICLE  12 OF THE AGREEMENT ON SAFEGUARDS  AND ARTICLE XIX:2 O F THE GATT  1994  
 
34. First, India acted inconsistently with Article 12.4 of the Agreement on Safeguards  since it 
notified the provisional safeguard measures to the Committee on Safeguards after the provisional 
safeguard measures have been taken. Contrary to what India argues, the fact that the measures 
allegedly had to be imposed "on an urgent basis " does not relieve India from the obligation to notify 
the Committee on Safeguards before taking the provisional measures. In fact, the notification 
obligation in Article 12.4 has be en imposed taking into account the "urgent " nature of provisional 
measures .  
 
35. Second, India acted inconsistently with Article 12.1 of the Agreement on Safeguards because 
the notifications made after 8 days or 6 days fail to comply with the requirement of "immediate " 
notification under Article 12.1, taking into account that the notifications were not complex and did 
not have to be translated. Japan also notes that domestic procedures described by India cannot 
constitute a justification for failing to mak e the required notifications pursuant to Article 12.1 of the 
Agreement on Safeguards "immediately " upon the occurrence of the specified events.  
 
36. Third, India acted inconsistently with Article 12.2 of the Agreement on Safeguards because 
India's notifica tion of 21 March 2016 does not contain information on (i) the causal link between the 
increased imports and the serious injury or threat thereof; (ii) a precise description of the product 
involved; (iii) a precise description of the scope of the proposed m easure and; (iv) the proposed 
date of introduction of the proposed measure. With regard to the first element, contrary to what 
India argues, the requirement to include information regarding the causal link between increased 
imports and serious injury clear ly follows from the words "caused by " in Article 12.2 which refers to 
"evidence of serious injury or threat thereof caused by increased imports. " With regard to the second 
element, Japan notes that India 's notification failed to indicate which sub -categories of products 
falling within the scope of the "product under consideration " were excluded from the scope of the 
safeguard measures. With regard to the third element, Japan submits that India 's notificati on did 
not indicate that the anti -dumping duty paid would be deducted from the safeguard duty rate nor 
that the duty should not be imposed on goods imported at or above the MIP. Finally, with regard to 
the fourth element, contrary to what India argues, the  "proposed date " does not mean a "theoretical 
date" but the actual date on which the safeguard measures will be applied.  
 
37. Fourth, India acted inconsistently with Article 12.3 of the Agreement on Safeguards and Article 
XIX:2 of the GATT 1994 because it  failed to provide Japan with sufficient information and with 
sufficient time  to allow for the possibility, through consultations, for a meaningful exchange of views. 
In light of the Appellate Body 's findings in US – Line Pipe , Japan submits that the perio d of 8 days 
in the present case was clearly insufficient for Japan to have a meaningful exchange of views within 
the meaning of Article 12.3. This is even more so as Japan did not know the effective date of 
application of the measures.  
 
III. INDIA ACTS INC ONSISTENTLY WITH ART ICLE II:1 (B) AND ARTICLE I:1 OF THE 
GATT  1994   
 
A. India acts inconsistently with Article II:1(b) of the GATT 1994  
 
38. India acts inconsistently with Article II:1(b) of the GATT 1994 because, through the measures 
at issue, it imposes "other duties or charges " contrary to the second sentence of that provision.  
Japan notes that India agrees that the measures at issue constitute "other duties or charges " within 
the meaning of Article II:1(b) of the GATT 1994. Thus, since the safeguard duty  is not recorded in 
India's Schedule of Concessions in the column "other duties or charges " and does not correspond to 
duties or charges that India applied at the date of entry into force of the GATT  1994 or was required 
to apply as a direct and mandatory consequence of legislation in force on that date, there is a 
violation of Article II:1(b) of the GATT 1994. India 's defense that t here is no violation of 
Article  II:1(b) of the GATT 1994 because, given that the measure was imposed pursuant to 
Article  XIX, India's obligations under Article II:1(b) ipso facto  gets suspended must be rejected. 
Indeed, the fact that a measure is taken pursuant to Article XIX does not automatically imply that 
there cannot be an inconsistency with Article II:1(b).  
 WT/DS518/R/Add.1  
 
- 39 - 
 
  B. India acts i nconsistently with Article I:1 of the GATT 1994  
 
39. India acts inconsistently with Article I:1 of the GATT 1994 because the measures at issue are 
not applied to the products originating in certain countries and this constitutes an advantage that 
has not b een accorded immediately and unconditionally to the like pr oducts originating in other 
WTO Members including Japan. India 's argument that there is no violation of Article I:1  of the 
GATT  1994 since the discriminatory treatment was done in accordance with A rticle 9 of the 
Agreement on Safeguards must be rejected. Indeed, the fact that a measure is applied in accordance 
with Article 9 of the Agreement on Safeguards does not mean that that measure is consistent with 
Article I:1 of the GATT 1994.  
 
IV. THE CHALLENGED MEASURES ARE SAFEGUARD MEASUR ES WITHIN THE MEANIN G 
OF ARTICLE XIX:1(A) OF THE GATT 1994 AND  THE AGREEMENT ON SA FEGUARDS  
 
40. Japan submits that there is no requirement for this Panel to examine, as a preliminary step, 
whether the measures at iss ue constitute "safeguard measures " as a result of which the Agreement 
on Safeguards would be applicable. Indeed, there is no definitional language of what is a "safeguard 
measure " in Article XIX of the GATT 1994 understood as "measures that suspend, withdr aw or modify 
a GATT obligation to prevent or remedy serious injury caused by the increased imports ". At best, it 
can be deduced from that provision that Article XIX of the GATT 1994 and the Agreement on 
Safeguards can be relied upon by a Member applying a measure that would otherwise be inconsistent 
with a GATT obligation provided that the measure complies with all the substantive and procedural 
requirements laid down in Article XIX of the GATT 1994 and in the Agreement on Safeguards. Since 
the measures at issue which are inconsistent with the GATT  obligations have been imposed by India 
pursuant to Article XIX of the GATT 1994 and notified in advance by India to the WTO Members 
pursuant to Article XIX:2 of the GATT 1994 and Article 12.3 of the Agreement on S afeguards, this 
Panel has to examine whether the measures at issue are consiste nt with Article XIX of the GATT  1994 
and the Agreement on Safeguards.  
 
41. Furthermore, even if the Panel were to conclude that it is required to examine whether the 
measures a t issue constitute "safeguard measures " understood as "measures that suspend, 
withdraw or modify a GATT obligation to prevent or remedy serious injury caused by the increased 
imports ", the measures at issue fulfil  those conditions, and therefore, constitut e "safeguard 
measures ". Indeed, the measures at issue suspend both the obligation under Article II:1(b) of the 
GATT 1994 in relation to "all other duties or charges " and the most -favoured -nation obligation under 
Article I:1 of the GATT 1994 with the purpos e of preventing or remedying serious injury to the 
domestic industry.  
 
42. Although India argues that the obligations suspended by the measures at issue also include 
Article XXIV of the GATT 1994, and, more specifically, Article XXIV:4, XXIV:8 and XXIV:12,  Japan 
submits that none of those provisions imposes an obligation on Members to establish a customs 
union or a free trade area nor to apply a particular duty rate on imports of products from 
certain FTA/RTA partners. It follows that India has failed to de monstrate how the measures at issue 
suspend an obligation under Article XXIV of the GATT 1994.  
 
V. INDIA 'S CLAIM THAT JAPAN 'S CASE IS NOT COMPLI ANT WITH ARTICLE 3.7  OF THE 
DSU MUST BE REJECTED  
 
43. Japan submits that the Panel should reject India 's objecti on based on Article 3.7 of the DSU 
and make findings and recommendations with respect to the challenged measures in accordance 
with its terms of reference.  
 
44. First, with regard to India 's claim under the first sentence of Article 3.7 of the DSU that 
the panel proceedings are not fruitful since the measures  imposed by India expired on 
13 March  2018, Japan submits that pursuant to the text of that provision, it is before bringing a case 
that a Member must exercise its judgment as to "whether action under these procedures would 
be fruitful ". Therefore, the fact that the measure expires or is withdrawn during the 
panel  proceedings  should not be relevant to the determination as to whether "before bringing a 
case" the Member  exercised its judgement as to "whether action under these procedures would be 
fruitful ". 
 WT/DS518/R/Add.1  
 
- 40 - 
 
  45. Furthermore, as recognized by the Appellate Body, given the largely self -regulating nature of 
the requirement of Article 3.7, first sentence, it must be presumed that whenever a Member submits 
a request for the establishment of a panel, it does so in good faith, having duly exercised its 
judgement as to whether recourse to that panel would be "fruitful ". India actually does not dispute 
"the discretion to be enjoyed by any Member in deciding whethe r to bring a case against another 
Member under the DSU " nor that "Japan 's request for the establishment of a panel was [made] in 
good faith. " It follows that the claim of inconsistency with Article 3.7 of the DSU is manifestly 
misplaced and, in any event, has no legal merit.  
 
46. Second, with regard to India 's claim under the second sentence of Article 3.7 of the DSU that 
the alleged expiry of the measures at issue should somehow affect the outcome of these 
proceedings, Japan recalls the Appellate Body 's finding that "the fact that a measure has expired is 
not dispositive of the question of whether a panel can address claims with respect to that measure. " 
In light of the guidelines provided in previous WTO cases, Japan submits that the Panel should not 
refrain from making findings with regard to the measures at issue.  
 
47. Indeed, the challenged measures were identified in the panel request and thus are within the 
Panel 's terms of reference. Furthermore, since India continues to argue that its measures are f ully 
consistent with its WTO obligations and since Japan, as the complaining party, continues to request 
that the Panel make findings,  there is still a dispute between the parties as to the consistency of the 
challenged measures with the relevant provision s of the Agree ment on Safeguards and the 
GATT 1994. Japan also notes that India could take measures that may give rise to certain of the 
same, or materially similar, WTO inconsistencies. With regard to India 's argument that, because of 
Article 7.5 of the Ag reement on Safeguards which imposes restrictions on imposition of the same 
measures, there is no possibility of the measures to be easily re -imposed, Japan notes that 
Article  7.5 only provides for a time limit during which a safeguard measure should not be  re-imposed 
and thus, it does not prevent India from re -imposing the measures once such time limit expires. In 
any event, India  acknowledges that there is no provision in its domestic legislation that would 
explicitly prevent the Indian authorities from re -imposing the measures. Finally, given the temporary 
nature of safeguard measures and the increasing delays in dispute settlement proceedings, 
concluding that no findings should be made where the measures have expired would raise systemic 
concerns as it wo uld amount to preventing Members from effectively challenging safeguard 
measures.  
 
48. Japan submits that the Panel should also make recommendations with regard to the 
challenged measures. Indeed, pursuant to Article 19.1 of the DSU, if a panel makes findi ngs that a 
challenged measure is inconsistent with a covered agreement, it "shall" recommend that the Member 
concerned bring the measures into conformity with that agreement. Previous WTO cases suggest 
that recommendations are to be made in particular with  respect to measures that, despite their 
expiry, continue to exist or to have legal effects. In that regard, Japan submits that, even assuming 
that the challenged measures have expired (something that India has failed to demonstrate), those 
measures contin ue to have effect as they may still apply to imports of the products concerned that 
took place during the time the safeguard measures were in force but for which the duties were not 
collected, for instance, due to errors in customs declarations. India has failed to rebut Japan 's 
argument. In particular, India has not shown that an a posteriori  collection of the challenged 
safeguard duty is prohibited. There is therefore no basis for the Panel to refrain from making 
recommendations with respect to the challenged measures given the clear language of Article 19.1 
of the DSU.  
 
49. Lastly, refrainin g from making findings and recommendations would introduce a fundamental 
risk of circumvention of the dispute settlement procedures under the DSU. Indeed, assuming, for 
the sake of argument, that India introduces a new measure with effects similar to those  of the 
challenged safeguard measures – whether or not such new measure would be subject to the 
Agreement on Safeguards – in the absence of findings and recommendations of the Panel, Japan 
may not be able to challenge the new measure through compliance proceedings pursuant to 
Article  21.5 of the DSU.  Indeed, the newly adopted measure may be found not to be a "measure 
taken to comply " given that the lack of recommendations to bring the measures into conformity with 
the relevant agreements may be interpreted as meaning that any measure adopted thereafter is not 
a "measure taken to comply ". 
 
 WT/DS518/R/Add.1  
 
- 41 - 
 
  ANNEX B -3 
FIRST I NTEGRATED EXECUTIVE SUMMARY  
OF THE ARGUMENTS OF INDIA  
I. Introduction  
 
1. In the present dispute, Japan has challenged the provisional and definitive safeguard 
measures imposed by India on imports of certain iron and steel products into India. Japan alleges 
that India, by way of the present measures, have violated various provis ions of the 'Agreement on 
Safeguards ' ('the Safeguard Agreement ') and its obligations under the GATT 1994.  
 
2. However, India submits that the measures taken were in full compliance with India 's 
obligations under GATT 1994 and the provisions of the Safegua rd Agreement.  
 
II. Standard of Review to be followed by the Panel under Article 11 of the DSU  
 
3. Article 11  of the  DSU provides for the panel 's standard of review. A panel has to "make an 
objective assessment of the matter before it, including an objective assessment of the facts of the 
case. The panel has to also examine applicability of and conformity with the relevant covered 
agreements, and make such other findings as will assist the  DSB in making the recommendations 
or in giving the rulings pr ovided for in the covered agreements.  
 
4. "Objective assessment " has been understood as mandating neither a de novo  review (i.e.  the 
complete repetition of the fact -finding conducted by national authorities) nor "total deference " to 
domestic authorities (i .e. the simple acceptance of their determination).1 
 
5. India considers that the appropriate standard of review is to assess, if a reasoned and 
adequate explanation is discernible from the Competent Authority 's findings, and further, that in the 
event anot her plausible interpretation is proffered by the complainant, whether that interpretation 
can supersede the explanation provided by the Competent Authority. The burden of proof that the 
Competent Authority 's findings do not provide a reasoned and adequate explanation rests on the 
complainant (as opposed to suggestions on the manner in which the Competent Authority ought to 
have, or could have conducted the determination). Further, if such burden is not discharged by the 
complainant, the explanation of the c ompetent authority must automatically prevail.  
 
III. Burden of Proof to establish that India acted inconsistently with its obligations  
 
6. Under the Agreement, the complainant bears the burden of proof to demonstrate an 
inconsistency . Unless the complainan t discharges that burden with regard to a particular measure, 
there would be no basis for the Panel to find that measure to be inconsistent with the 
WTO Agreement.2 India submits that the complainant has not met its burden to establish a prima 
facie case w ith respect to the claims contained in its panel request. The complainant has merely 
relied upon unsubstantiated assertions without any supporting evidence or legal support.  
 
IV. India has fully complied with its obligations und er Article XIX:1(a) of the G ATT 1994  
 
7. India submits that the requirement under Article XIX:1(a), is to show that the developments 
which led to a product being imported in such increased quantities must have been "unexpected ". 
Therefore, the term "unforeseen developments " covers a ny change that the negotiators did not 
foresee when they undertook obligations or tariff concessions with regard to the product subject to 
the measure. The appropriate focus is on what was actually "foreseen " rather than "theoretically 
foreseeable ". 
 
8. India states that what is required to be demonstrated is a "logical connection " between the 
"unforeseen developments " and "increased imports ". The Final Findings of the Competent Authority 
                                                
1 Appellate Body Report, EC – Hormones , para. 117.  
2 Panel Report , United States – Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan , 
WT/DS192 /R .   WT/DS518/R/Add.1  
 
- 42 - 
 
  (i) contains a separate discussion on "unforeseen developments ";3 (ii) clearly refers to the panel 
report in US – Steel Safeguards , and, indicates that a confluence of events/circumstances can 
constitute "unforeseen developments ";4 and, (iii) contains an identification and discussion of 
circumstances/events, the confluenc e of which is regarded as "unforeseen developments " by the 
Competent Authority.  
 
9. India further submits that the Final Findings clearly demonstrate the factum of "increased 
imports " of the PUC,5 the existence of "unforeseen developments ", and, the logica l connection  
between the "unforeseen developments " and the "increased imports ". The clear conclusion of the 
Competent Authority, after detailed discussion on the issue in the findings, is that there was a 
significant increase in imports of the PUC in absolute terms, and, that the increase in imports of the 
PUC was linked to "unfores een developments ".6 The Preliminary Findings7 and the Final Findings8, 
make it clear that a confluence of events/circumstances has been taken to constitute "unforeseen 
developments " by the Competent Authority. India submits that the demonstration of the "logical 
connection " referred above, is to be seen in the context of the confluence of events/circumstances 
treated as 'unforeseen developments ' and "increased imports ", and not between each such individual 
event/circumstance. India has fully demonstrated th e "logical connection " existing between the 
"unforeseen developments " and an increase in imports of the product that is causing and threatening 
to cause serious injury.  
 
10. The panel in Argentina – Peaches9, has noted that the demonstration of 'unforeseen  
developments ', should at a minimum have some discussion by the competent authorities as to why 
they were unforeseen at the appropriate time. India's understanding is that Article XIX of the 
GATT  1994 does not provide any express guidance on the manner in which "unforeseen 
developments " should be demonstrated. However, the Appellate Body while interpreting Article  XIX, 
has provided guidance that the demonstration should be a 'matter of fact '10, and,  what is required 
is only some minimum discussion as to why they were unforeseen at the appropriate time. Japan 
seeks to assert11 that in order to demonstrate the existence of "unforeseen developments ", the 
competent authorities need to provide an explanati on as to why identified events could and should 
be regarded as "unforeseen developments " within the meaning of Article  XIX:1(a) of GATT 1994. 
Such understanding of Japan would be tantamount to reading in an ad ditional condition into 
Article  XIX:1(a), which  does not emanate  from the plain text of Article  XIX:1(a).  
 
11. India's demonstration of unforeseen developments showed the sequential relationship implied 
by Article XIX between trade concessions, unforeseen developments, and imports in such increased 
quantities and under such conditions as to cause serious injury. India 's analysis also showed that 
the increased imports and the conditions which caused injury were a result of unforeseen 
developments. India has addressed the issue of correlation between t he unforeseen developments 
and the subject goods in both the Preliminary Findings12 as well as the Final findings .13 India has 
also examined the relevant evidences set out as Exhibit IND -20. 
 
12. India expressed its view that the effect of depreciation of cu rrency is felt across products 
including the PUC, as also observed in the findings of the Competent Authority in terms of the falling 
prices from these countries. This has been specifically dealt with in the Final Findings14 and in the 
Preliminary findings15 of the Indian Competent Authority.  
 
13. The FTAs entered into by India with Korea and Japan under the aegis of Article XXIV of the 
GATT 1994 is an 'obligation ' under the GATT 1994. India therefore, does not view the fact of lowering 
of duties as an 'unforeseen development ' but considers it as an act in compliance with its obligations 
                                                
3 Final Findings , (Exhibit IND -11), paras . 71-82. 
4 Final Findings , (Exhibit IND -11), para.  74. 
5 Final Findings , (Exhibit IND -11), paras . 34-42. 
6 Final Findings , (Exhibit IND -11), paras . 102(i) and 102(iii).  
7 Preliminary Findings , (Exhibit IND -7), para . 24. 
8 Final Findings , (Exhibit I ND-11), para . 79. 
9 Panel R eport , Argentina – Peaches , para. 7.23. 
10 Appellate Body Report, US – Lamb , para . 76. 
11 Japan 's first written submission , para . 104. 
12 Preliminary Findings , (Exhibit IND -7), paras . 18-24. 
13 Final Findings , (Exhibit IND -11), paras . 75 -78 and 79 -82. 
14 Final Findings , (Exhibit IND -11), paras . 76-77 and 79 (which incorporates the  findings from the 
Preliminary F inding s). 
15 Preliminary Findings , (Exhibit IND -7), paras . 21-22. WT/DS518/R/Add.1  
 
- 43 - 
 
  under Article XXIV of the GATT 1994. India reiterates that any obligation taken by a member under 
Article XXIV is also an obligation referred to in the first part of Article XIX:1(a) of the GATT 1994. 
The subsequent spur of imports (i) in view of the confluence of developments was indeed considered 
to be an "unforeseen development " which was further triggered by (ii) the effect of India 's obligations 
under the said FTAs under Article XXIV of the GATT 1994.  
 
14. India believes that there is no requirement that the "unforeseen developments " should 
necessarily coincide in time with the increase in imports. The only legal requirement is that the 
"increased imports " must be an effect or outcome of the "unforeseen developments ". It has not been 
disputed by any of the interested parties that the currency devaluation indeed took place and also 
the fact that the imports increased in the more recent part of the Period of Investigation  (POI). India 
also submitted that the interested parties have also not denied the occurrence of the individual 
circumstances/events - the confluence of which was treated as "unforeseen developments ". 
Therefore, India is of the view that it wou ld be illogical to suggest that the "unforeseen 
developments " should occur and its effects felt exactly at the time of increase in imports.  
 
15. India states that an investigation for safeguard duties is initiated on the basis of an application 
by the Dom estic Industry . Under the rules, it is incumbent upon the Domestic Industry to provide 
information on all aspects of the factors which need to be examined by the Competent Authority. 
The Final Findings at paragraphs 82 and 102(iii) clearly show that the In dian Competent Authority 
has concluded that the domestic industry was able to demonstrate that the developments in the 
market, which resulted in a surge in imports of the PUC, were indeed unforeseen. It is therefore, 
evident that the discussions16 and concl usions as regards the existence of "unforeseen 
developments ", are only that of the Competent Authority as set out at paragraph  81(g) of India 's 
First Written Submissions.  
 
16. In the context of a request by the Panel to elaborate India 's argument that the "logical 
connection test " under the first part of Article XIX:1 is distinct from the "causal link test " under the 
second part of Article  XIX:1, India submitted that since separate and different expressions are used 
in the said Article, complete meaning mus t to be given to the use of such separate and distinct 
expressions. India 's contention in this regard also draws support from Article 31.1 of the 
Vienna  Convention on Law of Treaties, which inter-alia states that "A treaty shall be interpreted in 
good fait h in accordance with the ordinary meaning to be given to the terms of the treaty in their 
context and in the light of its object and purpose ." 
 
17. India's understanding is that the requirement under Article XIX:1(a) necessitates the 
existence of a logical  connection between the "unforeseen developments " and the increased imports. 
India submits that Article XIX:1(a) itself uses two distinct expressions namely – "as a result of " and 
"as to cause or threaten ". The expression "as a result of " has been interpre ted by the Appellate body 
in Argentina - Footwear (EC)17 to mean that there should be a "logical connection " between the 
"unforeseen developments " and the increased imports. The "causation analysis " referred to in the 
second part of Article XIX:1(a), is therefore, clearly distinct from the "logical connection test " 
emanating from the first part of Article XIX:1(a). The "logical connection " test is clearly of a lesser 
threshold when compared to the "causation analysis "/ "causal link test " prescribed in the second 
part of Article XIX:1(a). In India 's view, the logical connection test is limited to the demonstration 
of a "logical link " between "unforeseen developments " and the increase in imports. Howeve r, the 
causal link test puts an obligation on the party to show a "cause and effect " relationship.  
 
18. The Panel sought India 's views in the context of the Appellate Body report in Korea – Dairy 
wherein it is stated that "there is a logical connection be tween the circumstances described in the 
first clause – 'as a result of unforeseen developments and of the effect of the obligations incurred 
by a Member under this Agreement, including tariff concessions … ' – and the conditions set forth in 
the second cla use of Article  XIX:1(a) for the imposition of a safeguard measure " (paragraph 85 of 
the Appellate Body Report). India 's understanding on what the "logical connection " entails is set out 
in detail at paragraphs 82 to 84 of its First Written Submissions.  
 
19. As regards India 's views on the scope of discussion - the competent authority 's determination 
should entail regarding 'unforeseen developments ' under Article XIX of the GATT  1994, India 's 
understanding is that Article XIX of the GATT 1994 does not provid e any express guidance on the 
                                                
16 Final Findings , (Exhibit IND -11), paras . 71-82. 
17 Appellat e Body R eport, Argentina – Footwear (EC) , para. 92.  WT/DS518/R/Add.1  
 
- 44 - 
 
  manner in which "unforeseen developments " should be demonstrated. However, the Appellate Body 
while interpreting Article XIX, has provided guidance that the demonstration should be a 'matter of 
fact', and, what is required is only some minimum discussion as to why they were unforeseen at the 
appropriate time. The discussion, as opposed to explanation, on 'unforeseen developments ' is to be 
on why identified events/circumstances could be regarded as "unforeseen developments ". The test 
is to consider what was and was not actually "foreseen " rather than what might or might not have 
been theoretically "foreseeable ". Broadly, India considers that there should be some discussion 
regarding the existence of "unforeseen developments " and there is no requirement of establishing a 
cause and effect relationship with increased imports. India 's understanding is more fully reflected at 
paragraphs 78 to 80 of India 's First Written Submissions.  
 
20. India clarifies that steel production worl dwide is measured in terms of the crude capacity and 
the proportion of the PUC remains the same with respect to the crude production for which data is 
available in public domain. There is no indication on record to suggest that either the production or 
the consumption pattern has changed so as to make an analysis based on the crude steel capacity 
unreliable. The analysis is fully reflected in the Preliminary Findings18 and the Final Findings19 
 
21. India submits that its obligation is only to examine whether any unforeseen developments 
resulted in an increase in imports of the PUC into India . There is no requirement to evaluate the 
demand pattern in other countries as it is not the case of India that India was the only "natural 
choice ". India is of the view th at the determination required  to be undertaken under Article  XIX:1(a) 
of the GATT 1994 was limited only to the extent whether the result of the unforeseen developments 
was an increase in imports of PUC into India. Since India was not obligated under Articl e XIX:1(a) 
of the GATT 1994 to determine whether there were alternate markets with increasing demand and 
high prices, no such exercise was required to be undertaken. India states that this examination has 
been done by the Indian Competent Authority, and th e specific findings with respect to increase in 
imports of as a result of "excess capacity of major exporting nations " are clearly set out at 
paragraphs 19, 21, 24 of the Preliminary finding of the Indian Competent Authority and also at 
paragraphs 75, 79 a nd 82 of the Final Findings of the Indian Competent Authority. As regards the 
observation relating to decrease in demand in European Union and the United States, the Indian 
Competent Authority has examined the facts and data on record. The said facts and e vidences can 
be found at  pages 101 -190 of Exhibit - IND 20. 
 
V. India has demonstrated a "logical connection " between the effect of the obligations 
incurred under the GATT 1994 and the increase in imports causing serious injury  
 
22. India expressed its view  that the measure in question is a 'safeguard measure ' under 
Article  XIX of GATT 1994. India believes that by way of the impugned measures India has suspended 
it's obligations under Article II and Article XXIV of the GATT 1994. Being in the category of "all other 
duties or charges of any kind " in terms of article II:1(b) of the GATT 1994, measures adopted by 
India lead to the suspension of the obligations of India under Article II:1(b), second sentence, of the 
GATT 1994. By way of the impugned measures, Ind ia has also suspended obligations incurred under 
Article I:1 of GATT in as much as  the measures did not apply to imports of subject goods from 
developing countries other than China PR and Ukraine. India 's measures have also suspended its 
obligation with re spect to the FTAs/RTAs formed under Article XXIV of the GATT 1994. Section 13 of 
Article XXIV:12 of the "Understanding on the Interpretatio n of Article  XXIV of the General Agreement 
on Tariffs and Trade 1994 " provides that "Each Member is fully responsible  under GATT 1994 for the 
observance of all provisions of GATT 1994, and shall take such reasonable measures as may be 
available to it to ensure such observance by regional and local governments and authorities within 
its territory ". In the EC-Customs Matters20, the Panel has noted t hat Article XXIV:12 of the 
GATT  1994 is drafted as a positive obligation rather than as a defence. More specifically, the use of 
the word 'shall' in Article XXIV:12 of the GATT 1994, indicates that that Article imposes an obl igation 
on Members to take all reasonable measures to ensure that lo cal authorities comply with 
WTO obligations.  
 
23. The panel decision in US -Steel Safeguards21, holds that - "the logical connection between tariff 
concessions and increased imports causing serious injury is proven once there is evidence that the 
                                                
18 Preliminary Findings , (Exhibit IND -7), para . 24. 
19 Final Findings , (Exhibit IND -11), paras . 71-82. 
20 Panel R eport , EC – Customs , para. 7.144.  
21 Panel R eport , US – Steel S afeguards , paras . 10.139 -10.140 . WT/DS518/R/Add.1  
 
- 45 - 
 
  importing Member has tariff concessions for the relevant product ". The Final Findings22 issued by 
the Competent Authority clearly identifies that India has incurred obligations under the GATT 1994 
including tariff concessions and clearly indicate23 why India has chosen to initiate measures under 
the Safeguard Agreement and not any measures under the respective Free Trade Agreements.  
 
24. In the context of the recent panel report in Indonesia – Iron or Steel Products24, where the 
panel noted that Article XXIV of the GATT 1994 is a permissive obligation and does not impose any 
positive obligation to enter into a FTA or to provide a certain level of market access to its FTA 
partners through bound tariffs (p aragraph  7.20 of the panel report), India is of the view that as long 
as there is an obligation which is incurred by a contracting party under the GATT 1994, it would be 
incorrect to state that it is not an obligation in terms of Article XIX on the ground that it is not a 
positive obligation. A plain reading of Article XIX does not allow any distinction to be made for 
obligations under different provisions of the GATT 1994. Needless to state that such categorization 
of obligations in terms of Article XIX wo uld tantamount to adding words to the plain language and 
further qualifying the plain expressions of Article XIX which is completely against the general rules 
of interpretation of treaties, the customary rules of interpretation of public international law and the 
Vienna Convention on the Law of Treaties. Further, the panel report was in the context that Indonesia 
had no binding tariff obligation with respect to galvalume inscribed into its Schedule of Concessions 
for the purpose of Article II of the GATT 19 94. In India 's view, Article XXIV is permissive insofar as 
the Member country has the option to enter or not enter into a FTA/RTA. However, Article XXIV 
becomes a mandatory obligation, once the FTA/RTA is entered into and accordingly the Member has 
to nece ssarily comply with the provisions of the same. Article  XXIV cannot be a defence against 
other binding obligations unless it confers an obligation in itself. Only if Article XXIV confers an 
obligation in itself, can, the red uced tariff rates under Article  XXIV not be violative of Article I and 
Article II of the GATT. Such a reading is also consistent when Article XXIV is harmoniously read with 
the other article of GATT 1994. The interpretation adopted as to the construction of Article XXIV of 
the GATT 1994 should be consonant with the larger objective of making trade free and without 
barriers. This interpretation is furthered only if Article XXIV is treated as an obligation under the 
GATT 1994.  
 
25. As regards the effect of the obligation referred to in Arti cle XIX of the GATT 1994, these have 
been expressly dealt with at paragraphs 80, 81 and 82 of the Final Findings of the Competent 
Authority. Paragraph 82 of the Final Findings clearly identifies the effect of the obligations as being 
the increase in import s of PUC in a sudden, sharp, significant and recent manner into India.  
 
VI. India has complied with Articles 2.1, 3.1, 4.2(a) and 4.2(c) of the 'Agreement on 
Safeguards ' and Article XIX:1(a) with respect to its determination of an increase in 
imports  
 
26. India submits that Japan 's claims regarding the violation or breach of Articles 2.1, 3.1, 4.2(a) 
and 4.2(c) of the Safeguard Agreement and Article XIX:1(a) of the GATT 1994 are not only 
unsubstantiated but also do not have any legal support. After evaluati on of all the factors, the 
Competent Authority found that the significant increase in imports of the PUC in absolute terms, and 
the increase in imports of PUC was linked to "unforeseen developments ".25 The Preliminary Findings26 
and the Final Findings27 make the existence of unforeseen developments abundantly clear and also 
establish a clear correlation between the confluences of events/circumstances constituting 
"unforeseen developments " and the spurt in imports.  
 
27. India submits that there is no obl igation, direction or even guideline under the Safeguard 
Agreement regarding the selection of the period  of investigation. It has been held by successive 
panels and the Appellate Body, that selection of a period of investigation is the discretion of the 
investigating authorities  so long as it is established that the period selected by the importing member 
allows it to focus on the recent imports and the period selected by the investigating Authority is 
sufficiently long to allow conclusions to be drawn rega rding the existence of increased imports . 
 
                                                
22 Final Findings , (Exhibit IND -11), paras . 80-81. 
23 Final Findings , (Exhibit IND -11), para . 55. 
24 Panel Report, Indonesia – Iron or Steel Products  (under appeal to the Appellate B ody). 
25 Final Findings , (Exhibit IND -11), paras . 71-82, 102(i) and 102(iii).  
26 Preliminary Findings , (Exhibit IND -7), para. 24. 
27 Final Findings , (Exhibit IND -11), para. 79. WT/DS518/R/Add.1  
 
- 46 - 
 
  28. India asserts that the selection of the period of investigation and its breakdown was consistent 
with Article  2.1 of the Safeguard Agreement  and Article XIX . The selection of the period of 
investigation by  the Competent Authority fulfil ls the r equirements as enunciated by the panels and 
Appellate Body. India considers that the period of investigation selected by the Competent Authority 
was long enough to establish the requirement of increased imports as well as to allow appropriate 
conclusions t o be drawn regarding the state of the domestic industry. The same has been detailed 
in the initiation  notification28and the provisional findings29 issued by the Competent Authority.  
 
29. The selection of the period of investigation is the sole discretion of the investigating authorities 
and cannot be questioned unless it is clearly demonstrated that the selected period of investigation 
presented a distorted picture of the market. Japan 's claim that selection of a longer period would 
have given a different pic ture, is also not supported by the facts on record. Even assuming that the 
period of investigation ought to have started from 2011 -12, the trends with regard to the imports 
would have revealed that the imports had indeed gone up in absolute terms as well a s in relation to 
the domestic production.  India submits that its selection of the period of investigation fully enabled 
the Competent Authority to examine the recentness of the imports in the context of the long -term 
trends and concluded that increase evidenced a certain degree of recentness, suddenness, sharpness 
and significance .  
 
30. Japan 's claim that India was required to examine the data preceding the period of investigation 
is contrary to the Appellate Body report in the US Steel safeguards  case. India further submits that 
annualization of data is actually the most obvious and logical methodology available where the data 
of unequal periods is required to be compared.  
 
VII. India 's determination of 'domestic industry ' is compliant with Articles 2.1 , 4.1(a), 
(b), (c), 4.2(a) and (b) of the Safeguard Agreement  and Article XIX:1(a) of 
the GATT  1994  
 
31. India submits that there is no violation of Article 4.1(c) of the Safeguard Agreement . 
Article  4.1(c) of the 'Agreement  on Safeguards ' provides two opt ions for defining the term "domestic 
industry ". The first option is to take "producers  as a whole " as domestic industry; meaning thereby 
that all the producers in the territory of the member that are engaged in the manufacture of the like 
or directly compe titive products, are understood as "domestic industry ".  
 
32. Under the second option, the term "domestic industry " shall be understood as producers that 
are engaged in the manufacture of the like or directly competitive products whose collective  output 
of the like or directly competitive products constitutes a major proportion of the total domestic 
production of those products ". The definition  does not prescribe any specific percentage of total 
production to qualify the test of "a major proportio n", presumably for the reason that such a 
prescription would have created practical and conceptual difficulties. In the context of the Anti -
Dumping Agreement, the panel in Argentina – Poultry30, had an occasion to consider whether or not 
the phrase "a major  proportion " implies that the "domestic industry " refers to domestic producers 
whose collective output constitutes the majority, that is, more than 50 per cent, of domestic total 
production. The panel considered different dictionary definitions and noted t hat the word "major " is 
also defined as "important, serious, or significant ". The panel therefore found that "an interpretation 
that defines the domestic industry in terms of domestic producers of an important, serious or 
significant proportion of total do mestic production is permissible.  
 
33. The panel in  US – Wheat Gluten31 had the occasion to examine the link between the phrase 
"a major proportion " and the question of data coverage, and, has concluded that the 'major 
proportion ' criteria in the definition of 'domestic industry ' implies that complete data coverage may 
not always be possible and is not required. While the fullest possible data coverage is required in 
order to maximize the accuracy of the investigation, there may be  circumstances in a particular case 
which do not allow an investigating authority to obtain such coverage ". 
 
34. India submits that the portion of the domestic producers considered by the Competent 
Authority in the facts of the present case as "domestic in dustry " is accounting for more than 67% of 
the total domestic production and, therefore, it cannot be said to be a low percentage even 
                                                
28 Initiation Notification (Exhibit - 4), para . 4. 
29 Preliminary Findings , (Exhibit IND -7), para . 9. 
30 Panel R eport, Argentina – Poultry Anti -Dumping Duties , paras . 7.341 -7.343.   
31 Panel R eport,  US – Wheat Gluten , paras. 8.54 –8.56. WT/DS518/R/Add.1  
 
- 47 - 
 
  arithmetically, relative to the total production in India . Though there was no legal obligation to refer 
to the rest of t he producers  not constituting the domestic industry, the Competent Authority 
nevertheless sent questionnaires to all other known producers of the PUC, as reflected in the Final 
Findings.32 The present case is not a case in which Competent Authority excluded  producers that 
filed information but is a case in which rest of the producers did not cooperate .  
 
35. The fact that the Competent Authority has examined data of 67% of the total domestic 
production leaves no basis to presume that either the injury or the  causation determination could 
have been distorted . In India 's view, a portion of the domestic producers who account for "the major 
proportion " of the total domestic production, can, under no circumstances, be said to be not "a major 
proportion " of the tot al domestic production. In other words, "the major proportion " is invariably "a 
major proportion " but the vice versa may not be true. In any case, Japan has failed to place on 
record any averment or evidence to substantiate their apprehension.  
 
36. Thus, India submits that the 'domestic industry ' was defined in a manner that was consistent 
with Article 4.1(c) . Consequently, the injury and causation determinations  were also consistent with 
Articles 4.1(a), 4.1(b), 4.2(a) and 4.2(b) of the Safeguard Ag reement as well as with Article 2.1 of 
the Safeguard Agreement and Article XIX:1(a) of the GATT 1994. India has also clarified that the 
data taken by the Competent authority covers both captive and non -captive segments of the 
domestic production.  
 
VIII.  India's measures are compliant with Articles 2.1, 4.1(a) & (b) and 4.2(a) of the 
'Agreement on Safeguards ' and Article XIX:1(a) with respect to its determination of 
serious injury  
 
37. India submits that it has appropriately determined the serious injury and  threat thereof as 
required by Articles 4.1(a), 4.1(b) and 4.2(a) of the Safeguard Agreement, Further, Japan has failed 
to demonstrate that the increased imports are not the cause of serious injury to the domestic 
industry.  
 
38. India evaluated each of the  enumerated factors under Article 4.2(a) of the Safeguards 
Agreement in its Final Findings that were "of an objective and quantifiable nature " and that were 
"having a bearing on the situation " of the domestic industry. The Competent Authority has 
thoroughl y evaluated the overall position of the domestic industry in light of all the relevant factors 
having a bearing on a situation of that industry in order to determine that there is 'a significant 
overall impairment ' in the position of that industry ".33 As regards the factors specifically mentioned 
under Article 4.2(a), it is settled position that they have to be necessarily evaluated being ipso facto  
"relevant ". However, with regard to the "other factors ", the text of Article 4.2(a) specifically 
empower s the Competent Authority to make a judgment whether a particular factor is relevant or 
not, based on the twin criteria referred above . It is only after the Competent Authority decides about 
the "relevance " of a factor applying the twin criteria that the o bligation of carrying out the non -
attribution analysis in terms of the second part of Article 4.2(b) shall arise.  
 
39. There is no specific or implied obligation on the competent authorities to give a detailed 
explanation as to how the trend of each of the  factors individually ties in with the findings of serious 
injury. There is also no obligation to provide any explanation of the "bearing " or "effect " of each of 
the factors individually on the situation of the domestic industry.  
 
40. Apart from the existi ng injury, the Competent Authority in the Final Findings, has clearly 
analyzed as to why there is threat of injury to the domestic industry. The Competent Authority has 
held that there is a serious injury to the domestic industry due to the surge of import s and the most 
recent trend of import volumes entering India. It is clear that the findings of the Competent Authority 
are based on the analysis of the most recent trend of imports which have admittedly shown a sharp 
increase over the investigation period.  
 
41. India has clarified that the Period of investigation is 1 April 2013 to 30 June 2015. First quarter 
of the financial year 2015 -16 has been annualized for proper comparison with the preceding years. 
While determining the period of investigation, the I ndian Competent Authority took the most recent 
data in the context of reasonable and sufficiently longer term trends preceding the POI. India 
                                                
32 Final Findings , (Exhibit IND -11), para . 2. 
33 Appellate Body Report, Argentina – Footwear (EC) , para. 139.  WT/DS518/R/Add.1  
 
- 48 - 
 
  reiterates that the data for one quarter has been annualized to make it comparable to the full year 
data of the pr eceding periods. No estimate or forecast for the full year has been done for the purpose 
of "serious injury " analysis. The detailed reasoning has been expl ained in paragraphs 139 and 140  of 
India's First Written Submissions. The analysis of the Competent A uthority was solely based on the 
imports which had a lready taken place in the first  quarter of the financial year 2015 -2016 at the 
time and there has been no forecasting. Annualization does not mean a futuristic comparison or 
analysis but it is a simple me thodology to compare the data of one quarter of that  year with a 
12 months ' data of previous year. However, for the purpose of a fair comparison, the most recent 
data of the second quarter was considered by the Competent Authority34 for threat of "serious i njury " 
analysis.  
 
42. India submits that the panel statement in US- Line Pipe  has been referred at paragraph 30 of 
the Final findings only to highlight the fact that there is no prescription on how long the POI should 
be under the 'Agreement on Safeguards ' and that it is the discretion of the Competent Authority to 
select the period of investigation. The two factors which require examination while choosing a POI 
are (i) whether the period selected allow the authority to focus o n the recent imports, and, 
(ii) whether the period selected is sufficiently long enough to allow conclusions to be drawn regarding 
the existence of increased imports, both of which have been considered while fixing the POI as 
evident from a reading of the Final Findings35 of the Indian Competent Authority .  
 
43. As regards the decision of the Competent Authority not to use the data on volume of imports 
in 2011 -2012 and 2012 -2013, India is of the view that under the 'Agreement on Safeguards ', there 
is no prescription on how long the Perio d of Investigation ( 'POI') should be. India clarified that it is 
the discretion of the Competent Authority to select the POI. The two factors which require 
examination while choosing a POI, as has been noted in the panel statement in US – Line Pipe are, 
(i) whether the period selected allow the authority to focus on the recent imports, and, (ii) whether 
the period selected is sufficiently long enough to allow conclusions to be drawn regarding the 
existence of increased imports, both of which have been con sidered by the Indian Competent 
Authority while fixing the POI as evident from a reading of paragraphs 30 and 31 of the Final findings 
of the Indian Competent Authority. Without prejudice, India submits that it has already 
demonstrated in its first written  submissions (paragraph 130) that even if the data of previous years 
had been taken, the trend would have remained the same. In view thereof, India restricted its 
analysis for the period of investigation only.  
 
44. In the context of paragraph 189 of Japan 's First Written Submissions, India submits that there 
has not been any drop in imports in 2013 -14 which requires explanation, as the Competent Authority 
is only mandated to look at the import trend during the POI and not compare the same to periods 
precedi ng the POI.  
 
45. India considers that the expression used in Article XIX:1(a) of the GATT 1994 is "to cause or 
threaten serious injury to domestic producers ". Therefore, actual serious injury or threat of serious 
injury can both be considered simultaneous ly as there is no such prohibition under the 'Agreement 
on Safeguards '. The Indian Competent Authority has analyzed36 and given its conclusions with regard 
to "serious injury " as well as "threat of serious injury ".  
 
46. India clarifies that the captive pro duction has been considered for production, demand, 
inventory and capacity utilization while examining the serious injury to the Domestic Industry, and, 
that captive production has not been considered for sales and profitability, as no sales transactions 
are involved. India 's view is that imports can certainly affect production meant for captive use as 
such imports can displace the goods produced for captive use. Fall in production leads to increased 
costs per unit which has a direct impact on the overall p rofitability. Consequently, imports can lead 
to loss of market share even when goods are destined for captive use. India clarifies that the 
'Domestic Industry ' keeps relevant costs data separately for captive production and non -captive 
sales. There are no sales data for captive segment as legally or commercially, no sales are involved. 
As regards Japan 's contention concerning captive sales, India submits that the Competent Authority 
is required to examine the "share of domestic market taken by the increased  imports ". The 
Competent Authority has clearly demonstrated37 that the share of imports had gone up which leads 
to the inescapable conclusion that the share of the domestic market was reduced.  
                                                
34 Final Findings , (Exhibit IND -11), paras. 27 -28 and 100 -101. 
35 Final Fin dings , (Exhibit IND -11), paras . 30-31. 
36 Final Findings , (Exhib it IND -11), paras. 45 -59 and  100-101. 
37 Final Findings , (Exhibit IND -11), para . 49. WT/DS518/R/Add.1  
 
- 49 - 
 
  47. In India 's view, once the products are covered under "Produ cts under Consideration " ('subject 
goods '), then no further division/categorization is required with respect to the goods covered under 
PUC. Consequently, there is no requirement of any such price comparison for categories within such 
PUC. India submits th at in contradistinction to anti -dumping, a safeguard investigation does not 
envisage detailed model -wise or source -wise price analysis as the focus of the investigation is 
"increased imports ".  
 
48. India submits that increasing or stable trends in injury factors do not necessarily suggest a 
positive development in the situation of the domestic industry. For example, if the demand in the 
market has increased and the sales of the domestic producers rem ain constant, it could still be an 
indicator of "serious injury " as the entire growth in the market has been taken away by increased 
imports. Even if some trends suggest a positive development, the conditions may still be sufficient 
to meet the standard of  serious injury. India 's view is that only other "relevant factors " and not all 
"other factors " are required to be examined in the context of injury determination .38  
 
49. India submits that the imposition of safeguards measures by India are only in relation to 
"Products under Consideration " ('PUC') and that all the comments of interested parties have been 
fully dealt with while determining the 'PUC'.39  
 
IX. India has compli ed with Articles 2.1, 4.2(a) and 4.2(b) of the 'Agreement on 
Safeguards ' and Article XIX:1(a) of the GATT 1994 with respect to its determination 
of the causal link between the increase in imports and the serious injury and threat 
thereof  
 
50. India submit s that it has fully established the causal link between the alleged increase in 
imports and the alleged serious injury and threat thereof to the domestic industry as required by 
Article 4. 2(b) of the Safeguard Agreement. India has also adequately determine d that the increased 
imports have caused or are threatening to cause serious injury to the domestic industry as required 
by Articles 2.1  and 4.2(a)  of the Safeguard Agreement and Article XIX:1(a) of the GATT 1994.  
 
51. India submits that in its causation a ssessment, it has evaluated all relevant factors of an 
objective and quantifiable nature having a bearing on the situation of that industry. India has based 
its assessment on the principles set out in the panel report in Korea –Dairy .40 India submits that 
Japan has failed to point out any "other factors " which "are of a quantifiable and objective nature " 
and "have a bearing " on the situation of the domestic industry.  
 
52. India submits that the panel in  US – Wheat Gluten  expressed its views that  "overall 
coincidence " is what matters and not whether coincidence or lack thereof can be shown in relation 
to a few select factors which the Competent Authority has considered. India further submits that 
detailed findings have been recorded in respect of the coinci dence of increased imports and the 
factors which the Competent Authority has considered as relevant. Therefore, Japan 's claim that 
India has failed to establish overall coincidence in time between the movements in imports and the 
movements in injury factor s, does not have either the factual or legal support. India asserts that it 
would be logically incorrect to link the injury to those factors which are admittedly not a cause of 
injury, as proposed by Japan that the Competent Authority must carry out the ca usation analysis of 
all injury factors. The Competent Authority has also adequately analyzed the movement of the 
decreasing price of the imported products and the decreasing price of the domestic products.41 
 
53. India submits that the entire analysis of th e Competent Authority is based on the actual data 
made available to it, keeping in view the obligations under Article 3.2 of the 'Agreement on 
Safeguards '. Further, no 'What if ' type analysis were undertaken by India, as there is no such 
obligation under t he 'Agreement on Safeguards '. 
 
54. India refutes Japan 's claim that the Final Findings do not contain any non -attribution analysis 
in the section entitled "Causal Link between Increased Import and Serious Injury or Threat of Serious 
Injury ". The Competent Authority has clearly determined that for the purpose of determining 
causation, all relevant factors of an objective and quantifiable nature having a bearing on the 
                                                
38 India's first written submission,  paras. 181-192. 
39 Final Findings , (Exhibit IND -11), paras . 18-23. 
40 Panel Report, Korea — Dairy , paras. 7.89 –7.90. 
41 Preliminary Findings , (Exhibit IND -7), para. 25(g); Final Findings , (Exhibit IND -11), para. 49(g)(ii).  WT/DS518/R/Add.1  
 
- 50 - 
 
  situation of that industry have been evaluated42. There was no occasion to refer to any othe r factor 
in view of the determination by the Competent Authority that none of the "other factors " can be 
considered as relevant on account of the fact that they were neither objective nor quantifiable in 
nature, nor did they have a bearing on the situation  of the industry.  
 
55. India also clarifies that imports from all sources including those from Japan and Korea have 
been considered as a "relevant factor of an objective and quantifiable nature having a bearing on 
the situation of [domestic] industry ". In India's view, it is not permissible to carry out the injury 
analysis in the context of any particular country or a group of countries as the entire analysis is in 
the context of "imports " alone irrespective of its source. Further, any bilateral safeguard proceedings 
under the respective FTAs would not have addressed the imports from other sources which are not 
a part of the relevant FTA.  
 
56. In view of the above, India submits that it has fully complied with its obligations and 
appropriately demonstrated the causal link between the increased imports and the serious injury or 
threat thereof.  
 
X. India 's safeguard measures are in accordance with Articles 5.1 and 7.1 of the 
'Agreement on Safeguards ' and Article XIX:1(a) of the GATT 1994  
 
57. India submits that the safeguard measure adopted by India clearly reflect that India levied 
the safeguard duties only to the extent and duration necessary to prevent and remedy serious injury 
to its domestic industry in terms of Article 5.1 & 7.1 respectiv ely of the 'Agreement on Safeguards '. 
Further, there is no obligation as such to provide any justification or reasoning to demonstrate the 
necessity of the measures except when there are quantitative restrictions. India further submits that 
Japan has faile d to show any obligations emanating from Article 5.1, which make it imperative for 
the Indian Authority to have "explained and attributed " the serious injury due to increased imports 
and decided upon the extent of applicability of safeguard measures explai ning a nexus between 
serious injury due to increased imports and the extent of safeguard measures applied. India further 
submits that Japan has not provided any reason in support of their claim nor have they established 
as to how there is a violation of Ar ticle 7.1 when India has fully complied with its obligations under 
Article 4.2(b).  
 
58. India clarifies that there is no indication or even a suggestion in the text of the Agreement 
that a violation of the non -attribution requirement would necessarily lead  to an inconsistency of the 
measure at issue with Articles 5.1 and 7.1 of the Safeguard Agreement.  
 
XI. India acted in full compliance with Articles 3.1 a nd also 4.2(c) of the 
Safeguard  Agreement and its obligation thereto.  
 
59. India submits that the analysis of the panel in US – Steel Safeguards dispute43 makes it 
abundantly clear that the requirement as to reasoned conclusion under Article 3.1 is limited to "all 
pertinent issues of fact and law " prescribed in Article XIX of the GATT 1994 and the relevant 
provisions of the Safeguard Agreement only. In other words, Article 3.1 does not require any 
additional explanation than what is expressly prescribed under Agr eement on Safeguards or 
Article  XIX of the GATT 1994. Further, Article  4.2 (c) requires the Competent Authority to publish a 
report containing detailed analysis of the case under investigation and to demonstrate relevance of 
the factors examined. India submits that the report of the Competent Authority was clearly in 
accorda nce with the above provisions, fulfilling every condition required therein.  
 
60. Also, India has clearly demonstrated in the previous sections  that the Indian Competent 
Authority has fully complied with its obligations under the Agre ement on Safeguards and  Article  XIX 
of the GATT 1994 and has provided a reasoned and adequate explanation of its determination 
concerning "all pertinent issues of facts and law ". Therefore, India has not violated any of its 
obligations under Agreement on Safeguards or under Arti cle XIX:1(a) of the GATT 1994.  
 
                                                
42 Final Findings , (Exhibit IND -11), para . 65. 
43 Appellate Body Report, US – Steel Safeguards , para. 304.  WT/DS518/R/Add.1  
 
- 51 - 
 
  XII. India has complied with Article 11.1(a) of the Safeguard Agreement.  
 
61. India submits that since the safeguard measures imposed by India are fully in compliance with 
the provisions of the 'Agreement on Safeguards ' and Article XIX:1(a) of the GATT 1994, there can 
be no violation of Article 11.1(a) of the Safeguard Agreement.  
 
XIII.  India has complied with Article 12 of the 'Agreement on Safeguards ' 
 
62. India submits that the Competent Authority had come to a conclu sion that increased imports  
of subject goods into India has caused and threatened to cause serious injury to the domestic 
industry of subject goods, and, that any delay in application of provisional safeguard duties would 
have caused damage which would hav e been difficult to repair. Imposition of provisional safeguard 
duties ( 'which measure has now elapsed ') on an urgent basis was necessitated due to the existence 
of critical circumstances. India had immediately thereafter notified the fact of imposition of  a 
provisional safeguard measure to the "Committee on Safeguards ". India states that it notified the 
relevant requirements in all instances to the Committee of safeguards within 6 -8 days of the date 
of initiation, findings of serious injury or the impositi on of definitive safeguard  measures and has 
complied with the requirement under Article 12.1 of the Safeguard Agreement as interpreted by the 
panel in US – Wheat Gluten .  
 
63. The nature of information provided by India in the notification to the "Committe e on 
Safeguards " is in accordance  with the requirements under Article 12 of the "Agreement on 
Safeguards " as interpreted by the Appellate Body decision in Korea -Dairy . Further, the notification 
by India contained all the necessary facts and information wh ich were required to be provided to the 
committee on Safeguards.  
 
XIV. There is no violation of India 's obligations under Article I:1 or Article II:1(b) of the 
GATT 1994  
 
64. India submits that since the measures at issue were imposed in pursuance of Artic le XIX of 
GATT 1994, the obligation of India under Article II:1(b) and Article I:1 ipso facto  gets suspended. 
Since the measures at issue was imposed in the form of a safeguard duty in terms of Article XIX of 
GATT 1994 and the Safeguard Agreement, the ques tion of any violation of  Article II:1(b) or 
Article  I:1 of GATT does not arise.  
 
65. Under the Indian legislation, safeguard duties are not "ordinary customs duties " as they can 
only be imposed only through the application of the law on safeguards, strict ly adhering to all the 
conditions prescribed therein like progressive liberalization, facilitation of adjustment and the 
obligation to impose it only for the time and to the extent necessary . Therefore, under the Indian 
legislation too, like Article II:1(b ) of GATT, safeguard duties would be considered as "any other type 
of duties ". India is of the view that as long as a measure has been taken under the provisions of the 
'Agreement on Safeguards ' and 'Article XIX of the GATT 1994 ', it can only be regarded as a 
"safeguard measure ". 
 
XV. Conclusion  
 
66. Firstly, India and Japan both unanimously agree that the measures in issue are Safeguard 
measures and have been levied under Article XIX:1(a) of the GA TT 1994 read with the 
Safeguard  Agreement. In this regard, India submits that India considers the measures in dispute as 
"other duties and charges " in terms of Article II:1(b) of the GATT 1994.  
 
67. Secondly, Japan seems to be not too sure about the fruitfulness of the dispute or its outcome.  
 
68. Thirdly, both India and Japan agree that the requirement in the first part of Article XIX, i.e., 
the test of "as a result of " is different from the "causation analysis " mentioned in the second part of 
Article XIX:1(a) of the GATT 1994.  
 
69. Fourthly, Japan accepts that the "change in the competitive relationship between the imports 
and the domestic sales " is not emanating out of the text of either the Safeguard  Agreement or the 
GATT  1994.  
 WT/DS518/R/Add.1  
 
- 52 - 
 
  70. Fifthly, India understands that both the parties a gree that the requirement with regard to 
"unforeseen developments " has to find "at least some discussion " in the Final Findings of the 
Authority as opposed to an elaborative analysis.  
 
71. Sixthly, Japan does not dispute the fact that the examination of bo th injury as well as the 
threat to injury is possible under the Safeguard Agreement.  
 
72. India submits that it has adequately demonstrated that the measures in dispute have not 
violated any requirement emanating from its international obligations. In part icular, there were no 
violation with respect to India 's determination with regard to unforeseen developments, domestic 
industry, serious injury or threat to serious injury determination, causal link and any other specific 
provisions contained in GATT  1994 or in Agreement on Safeguards.  
 
73. For the foregoing reasons, India requests the Panel to find that the measures that the 
Complainant has challenged  are not inconsistent with India 's WTO obligations that the Complainant 
has cited .   
 WT/DS518/R/Add.1  
 
- 53 - 
 
  ANNEX B -4 
SECOND I NTEGRATED EXECUTIVE SUMMARY  
OF THE ARGUMENTS OF INDIA  
1. In its First Written Submission, Second Written Submission and in its oral statements in the 
first and second substantive meetings, India clearly established that the measure taken by India is 
in compliance with its obligations under the Agreement on Safeguards and the GATT, 1994. Further, 
in India 's reply to the questions posed by the Panel and its comments on Japan 's responses to the 
questions posed by the Panel, India has elaborat ely explained why the issues raised by Japan do not 
hold any factual or legal merit.  
 
2. One of the preliminary issues in the current dispute remains whether the Panel should give its 
ruling in the present dispute and whether such a ruling would serve the  objective set out in terms 
of Article 3.7 of the DSU. In this regard, the Panel had raised a specific question1 to Japan regarding 
India's request that the Panel specifically determine whether the complaint brought by Japan in 
these proceedings is in acco rdance with Article 3.7 of the DSU. Japan, in its response2, submitted 
that it is the discretion of the Members to decide upon bringing a case against another Member 
under the DSU.  
 
3. In this context, India reiterates that it does not question the discretion enjoyed by any Member 
in deciding whether to bring a case against another Member under the DSU. However, in India 's 
view, this Panel may appreciate the relevance of the second part of Article 3.7 which refers to the 
possible remedy or outcome of  any decision of the DSB . Even if this Panel rules that the measures 
imposed by India are not consistent with its obligations under the WTO Agreements, the only possible 
outcome in the present case would be withdrawal of the measures by India. Since the me asures 
imposed by India have already expired on 13 March 2018, it is clear that no useful purpose would 
be served if Japan wishes to pursue with its claims.  
 
4. In its Second Written Submissions India clarified that the measure at issue has  
expired  on 13.03.2018.3 In its oral statement at the second su bstantive meeting, Japan stated  that 
even if the measures have expired, "those measures will continue to have effect after their alleged 
expiry ".4 India in its response to the question posed by the Panel clari fied that Section 28 of the 
Customs Act, 1962, which Japan has referred to, cannot be applied to any imports subsequent to 
the date of the expiry of the measure in dispute i.e., after 13 March, 2018.5 India also submitted 
that since the safeguard measure i n question has already lapsed, it cannot be renewed under any 
circumstances. In fact, India is proscribed from even imposing a fresh safeguard measure against 
the products in question in terms of Article 7.5 of the Agreement  on Safeguards for the period 
equivalent to the period in which the measure in dispute was in fo rce i.e., for two years and 
six months from 13 March, 2018.6 Japan also contended that India failed to demonstrate that the 
measure in dispute has indeed expired.7 In this regard, India  submit s that the document imposing 
the measure in question itself categorically states that the measure shall be in force only until 
13 March, 2018.8 Further, India 's notif ication dated 04.04.2015 to WTO  Committee on Safeguard also 
clearly states that the measur e is in force only until 13  March,  2018.9 Thereafter, in its Second Oral 
Statement, India has formally clarified that the  measure has not been extended beyond 
13 March  2018 and that it has expired on that date.10 
                                                
1 Panel q uestion  No. 13.  
2 Japan's  response to Panel question No. 23. 
3 India's second written submission , para . 2. 
4 Japan's opening statement at the second substantive meeting  of the Panel , para . 19. 
5 India's response to Panel question  No. 76.  
6 India's response to Panel question No. 75 . See also, India 's comments on Japan 's responses to 
questions from the Panel following the second substantive meeting, para . 17. 
7 Japan 's response to Panel question  No. 72.  
8 Customs Notification No. 1/2016 (SG) dated March 29, 2016 (Exhibit – IND 13) . 
9 Notification under A rticle 12.1(b) of the Agreement on Safegu ards, notification pursuant to 
Article 12.1(c) of the Agreement on S afegu ards, notification pursuant to A rticle 9, footnote 2 of the 
Agreement  on Safeguards, dated 04.04.2016 (Exhibit – IND 14) . 
10 India's comments on Japan 's responses to q uestions from the Panel following the second substantive 
meeting, para 12 . WT/DS518/R/Add.1  
 
- 54 - 
 
  5. Japan claims that India has failed to demonstrate that the challenged measure has expired on 
the basis of the provisions of section 28 of the Customs Act.11 India submits that Japan has failed to 
appreciate that Section 28 of the Customs Act, 1962 is a provision meant only for collection of dut ies 
which were not levied or have been short levied or erroneously refunded. Section 28 is not even 
remotely connected with the imposition of duties. India submits that the existence or expiry of a 
measure is to be understood in the context of "levy" or "imposition " alone and not with reference to 
its "collection ". Therefore, any reference to a collection mechanism of a duty (which was otherwise 
due at the time of importation) for making a claim that the effect of the measure still survives, is 
completely m isplaced.12 India would also submit that non -collection of any duty which was due prior 
to the expiry of the measure as a consequence of a ruling of the Panel, would amount to giving effect 
to the Panel 's recommendations retrospectively which would be contr ary to the  decision of the 
Appellate Body in US – Cotton case  and the text and interpretation of the DSU.13 
 
Japan 's claims regarding "unforeseen developments " are without merit  
 
6. India submits that it has fully complied with its obligations under Article XIX:1(a) of the 
GATT  1994. India states that the entirety of Japan 's claims regarding "unforeseen developments " 
are premised on (i) erroneous interpretations which do not find support from either the text of 
Article  XIX:1(a) or the 'Agreement on Sa feguards '; (ii) reading in additional words/obligations into 
the text of Article XIX:1(a) which is impermissible ; (iii) incorrect application of the decisions of the 
panels or the Appellate Body; (iv) a "what if " kind of analysis based on assumptions and 
presumptions instead of countering the analysis carried out by Com petent Authority on merits, 
and (v) erroneous and incomplete reading of the Preliminary Findings and Final findings of the 
Competent Authority.14 
 
7. While India 's understanding is that Articl e XIX of the GATT, 1994 does not provide any express 
guidance on the manner in which "unforeseen developments " should be demonstrated, India has, 
as a matter of fact, provided adequate explanation as to why they were unforeseen at the 
appropriate time. In fact, Japan itself in its Second Written Submission at  paragraphs 8 and 
15 clearly accepts that the requirement as per the panel and Appellate body decisions is only of 
"some discussion " in the published report .15 The Final findings of the Competent Authori ty clearly 
refer to the panel report in US – Steel Safeguards , which observes that a confluence of events can 
constitute 'unforeseen developments,16 and, thereafter, contains an identification and discussion of 
circumstances/events, the confluence of which constitutes "unforeseen developments ". The 
Preliminary Findings,17 also clearly indicate that a confluence of circumstances/developments, has 
been t aken to constitute "unforeseen developments " by the Competent Authority18. Japan itself does 
not dispute that a confluence of circumstances can together form the basis of "unforeseen 
developments "19. 
 
8. Further, Japan is not correct in believing that the ob ligation of demonstrating the existence of 
"unforeseen developments " should be only with respect to the specified products. India states that 
while the determination of "increased imports " should be with respect to the PUC, the existence of 
"unforeseen dev elopments " need not be limited to the PUC alone . Japan 's interpretation is based on 
an erroneous reading of Article XIX:1(a). Also, the specific findings in the Final Findings under the 
heading "increased imports ", clearly demonstrate that the determinatio n of "increased imports " has 
been made only in relation to the PUC20.  
 
9. While Japan asserts that the "unforeseen developments " should modify the competitive 
relationship between the imported and domestic products, it has not addressed the issue raised by 
the Panel as to what are the elements demonstrating the change of competitive relationship to the 
detriment of domestic product s resulting in increased imports causing serious injury to the domestic 
                                                
11 Japan 's opening statement at the second substantive meeting  of the Panel.  
12 India's comments on Ja pan's response  to Panel question No.  72, para. 4. 
13 India's comments on Japan 's response  to Panel question No.  72, para. 5. 
14 India's opening statement at the second substantive meeting  of the Panel , para . 9. 
15 Japan 's second written s ubmission, paras . 8 and 15 . 
16 Final Finding , (Exhibit IND -11), para . 74. 
17 Preliminary Findings , (Exhibit IND -7), para . 24. 
18 India's first written submission , para . 81. 
19 Japan 's second written s ubmission, para . 10. 
20 Final Findings , (Exhibit IND -11), paras . 34-42. See India's opening statement at the second 
substantive meeting  of the Panel , para . 10(c) . WT/DS518/R/Add.1  
 
- 55 - 
 
  industry. India submits that such obligation/require ment does not flow from Article  XIX:1(a) and 
that Japan is trying to read in additional obligations/requ irements into Article  XIX:1( a), where none 
exists. India believes that since there is no such requirement under the GATT or the Agreement on 
Safeguards, it would neither be necessary nor possible to identify elements demonstrating the 
same.21 
 
10. Japan has, apart from a mere assertio n that it is a complex matter, not discharged its burden 
of proof to demonstrate that how the present investigation can be considered as a complex matter22 
as it involves only a single safeguard measure. India's understanding is that a complex matter, 
requiring a more detailed discussion, would be in the nature of that referred to in the panel report 
in US – Steel Safeguards , which dealt with ten safeguard measures applied by the USA on imports 
of ten different products.23 Thus, India has fully complied with its obligations under Article XIX:1(a) . 
 
11. While Japan has claimed that for those developments which are specific to certain exporting 
countries, the Competent Authority should have made an analysis on a country -specific basis24, 
Japan does not cite any basis/authority in support of its claim. India submits that Japan 's assertion 
that India has to show a causal link between "unforeseen developments " with respect to some 
specific countries and increase in imports from all the sources, is misplaced. The Agr eement on 
Safeguards or the GATT does not require a member to impose safeguard duties only against the 
sources from where there has been an increase in imports or the sources with respect to which 
"unforeseen developments " have occurred. Such a requirement  would indeed result in creating a 
paradoxical situation where the Competent Authority would have to impose the duties against 
sources from where there has been no increase in imports even after an express finding that they 
are not causing serious injury i n terms of Article 4.25 
 
12. As regards Japan 's contention regarding the need to explain the impact of the "unforeseen 
developments " on the specific product at issue,26 India reiterates that steel production worldwide is 
measured in terms of the crude steel capacity . The proportion of the PUC remains the same as 
compared to the crude steel production for which data is available in public domain. There is no 
indication on record to suggest that either the production or the consumption pattern has changed 
so as to make an analysis based on the crude steel capacity unreliable. Japan has, apart from making 
certain bare allegations27, not provided any evidence to prove to the contrary. In fact, Japan itself 
proceeds on the assumption that the production of PUC incre ases in the same proportion as the 
production of crude steel.28  
 
13. Japan further asserts that the Preliminary Findings and Final Findings do not contain any 
explanation with regard to crude capacity. In this regard India submits that paragraph 24 of the 
preliminary findings clearly refers to the report published in World Steel Dynamics while concluding 
that the world excess capacity and increasing Indian demand are the reasons of increase in 
imports.29 Since it is a known fact that the steel production wor ldwide is measured in terms of the 
crude steel capacity, it is apparent that the steel capacity mentioned in the above analysis of the 
Competent Authority is the crude steel capacity. India reiterates that the proportion of the PUC 
remains the same as comp ared to the crude steel production for which data is available in public 
domain.30  
 
14. India vehemently disagrees with Japan 's contention that the conclusions regarding 
"unforeseen developments " in the Final Findings are that of the domestic industry. Ind ia reiterates 
its submissions made in response to question 23 of the Panel that paragraph 102 of the Final Findings 
indeed reflects the conclusion of the Competent Authority.  That the events constituted "unforeseen 
developments ", is clearly a conclusion reached by the Competent Authority in the Final Findings at 
                                                
21 India's second written s ubmission, paras . 9-10. 
22 India's second written s ubmission, para . 88. 
23 India's opening statement at the second substantive meeting  of the Panel , para. 10(e) . 
24 Japan 's first written submission, para.  124. 
25 India's comments on Japan 's response  to Panel question No. 89 , para . 24. 
26 Japan 's second written s ubmission , para. 53. 
27 Japan 's second written s ubmission , paras . 57-58. 
28 Japan 's second written submission , para. 59. See also, India 's comments on Japan 's response  to 
Panel question No.  89, para 27 . 
29 India's comments on Japan 's response  to Panel question No.  89, para . 27. 
30 Refer to pages 82 to 86 of the petition filed by DI on 27.07.2015, whic h was a part of the public file  
(Exhibit – IND 20) . WT/DS518/R/Add.1  
 
- 56 - 
 
  paragraph 82 and 102(iii). These are the conclusions of the Competent Authority on the basis of 
which the safeguard measures were notified. The mere fact that submissions of domestic industry 
in this context were accepted by the Competent Authority, does not make them the conclusions of 
the domestic industry. The conclusion clearly remains that of India 's Competent Authority.31 
 
15. In view of India 's submissions, Japan 's claim that India did not pr operly determine whether 
the unforeseen  developments resulted in increased imports in such quantities and under such 
conditions so as to cause or threaten to cause serious injury to the domestic industry, deserves to 
be rejected by the Panel.  
 
Japan 's claims regarding absence of logical connection between increase in imports and 
unforeseen developments are baseless  
 
16. Japan disputes India 's understanding that the "logical connection " requirement is a test of 
lesser threshold as compared to the "causat ion" requirement.32 It states that there is no textual 
basis to argue that one is of a lesser threshold than the other and that they merely relate to different 
elements examined in a safeguard investigation.33 India submits that the said statement of Japan i s 
contradictory to its own response to the question 24 asked by Panel34 wherein Japan has stated that 
the logical connection test requires demonstrating how the increase in imports causing serious injury 
or threat thereof is connected or linked to the unfor eseen developments and the effect of the 
obligations incurred under the GATT 1994.35 Japan further states that the causal link test requires 
demonstration of the existence of a causal link, i.e., a genuine and  substantial relationship of cause 
and effect be tween the increased imports and the serious injury or threat thereof suffered by the 
domestic industry.36 It is evident from Japan 's own submission that the logical connection test 
requires merely a connection or link whereas the causal link test requires t he demonstration of a 
genuine and substantial relationship. Evidently, the requirement of demonstrating a connection or 
link is of a lower threshold than that of demonstrating a genuine and substantial connection.37 
Further, Japan while acknowledging that t he two tests are inherently different38, denies the 
difference in the threshold in any of the tests. However, as stated above, Japan itself contradicts its 
stance wherein it has clearly expressed its understanding as to how the logical connection test is of  
a lower threshold as compared to that of the causation test.39 
 
17. Japan further argues that increase in imports would occur when imported products replace 
domestic products, resulting in both an increase in imports as well as a decrease in sales of domes tic 
products in absolute or relative terms.40 Japan 's interpretation does not emanate from the plain text 
of the GATT 1994 or the Agreement on Safeguards which requires the Competent Authority to merely 
demonstrate an increase in imports in absolute or rela tive terms.  
 
18. In view of the above, India submits that Japan has clearly failed to indicate any flaw in the 
examination of the Competent Authority with regard to unforeseen developments and its logical 
connection to increased imports.  
 
Japan failed to substantiate its claim regarding improper determination of 'period of 
investigation ' 
 
19. In response to question 94 by the Panel, Japan asserts that the Indian authority failed to make 
a qualitative analysis of the increase in imports such as to ensure th at the alleged increase in imports 
was "recent enough, sudden enough, sharp enough and significant enough ", both quantitatively and 
qualitatively. Further, while Japan does not point out any specific shortcoming in the Competent 
Authority 's selection and a nalysis of the POI, it suggests that the Competent Authority should have 
                                                
31 Final Findings , (Exhibit IND -11), paras . 34-42. See India's opening statement at the second 
substantive meeting  of the Panel , para . 10(i). 
32 Japan 's second written submission,  para. 29. 
33 Japan 's second wri tten submission,  para. 29. 
34 Japan's response to Panel q uestions , paras. 23-24. 
35 Japan's response to Panel q uestions , para. 23. 
36 Japan' s response to Panel q uestions , para. 24. 
37 India's opening statement at the second substantive meeting  of the Panel , paras. 12-14. 
38 Japans ' response to Panel questions,  para. 25. 
39 India's opening statement at the second substantive meeting  of the Panel , para . 15. 
40 Japan 's second written submission, para. 38. WT/DS518/R/Add.1  
 
- 57 - 
 
  conducted its examination as per the methods suggested by it.41 Further, Japan takes retreat from 
its previous claim42 and clarifies that its claim focuses on the fact that the Indian a uthority failed to 
make a qualitative analysis, noting that while examining data outside the POI or determining a 
longer POI would be one possible method to ensure a qualitative analysis, there may be other 
methods to do so.43 
 
20. In this regard, India rei terates that the throughout its submission, Japan 's emphasis has been 
on suggesting alternate methods of investigation instead of demonstrating any shortcoming or 
lacuna in the investigations carried out by India. In fact, Japan 's claims are not only in th e form of 
alternative methodologies but effectively seek to cast more onerous burden than what is envisaged 
under the Agreement on Safeguards or the GATT 1994. India has indeed demonstrated through its 
First Written Submissions that the increase in imports  was recent, sudden, sharp and significant.44 
While Japan expressly admits that there could be various methods of doing qualitative analysis45, it fails 
to specifically point out how the POI selected by the Competent Authority does not qualify the test of 
'qualitative analysis '. Japan further contends that determining a longer POI would be one possible 
method to ensure a qualitative analysis. However, it does not in dicate how much longer a POI 
(3 years, 4 years or 10 years) would have qualified its understan ding of the test of 'qualitative 
analysis '. Further, when specifically asked by the Panel in question 96(a) that whether a period of 
investigation of two years and three months would be sufficient in order to make an objective 
analysis of import trends, Ja pan refrains from providing any answer to the said question. Therefore, 
while Japan 's claims regarding POI lack factual or legal basis, Japan also failed to discharge the 
burden of proof to establish that the period selected by the Competent Authority was not in 
accordance with the Agreement on Safeguards or the legal framework as interpreted by panels and 
the Appellate Body.46 
 
21. Japan notes that there is no provision in the Agreement on Safeguards which prohibits the 
examination of data outside the POI.47 India agrees with Japan that there is no bar on the Competent 
Authority to examine the data outside the POI. However, India notes that the discretion, in this 
regard, lies with the Competent Authority.48 
 
22. As regards the basis of the selection of the PO I, in paragraphs 30 and 31 of the Final Findings, 
the Competent Authority has clearly provided the basis of selection of the POI. As discussed in 
paragraph 30 of the Final Findings, the selection of the POI was based on (i) principles set out in the 
panel findings in US – Line Pipe; (ii) facts of the present case; and (iii) the information and sources 
of information analyzed by the Competent Authority. Further, in paragraph 31 of the Final Findings 
the Competent Authority clearly considered it appropriate t o take the present POI in view of the 
decision of panel mentioned in paragraph 30.49 
 
Japan failed to substantiate its claim regarding improper determination of 'Increase in 
imports ' 
 
23. In its Second Written Submission, Japan seeks to dispute India 's claim that the Panel cannot 
be called upon by Japan to rule with regard to the alleged violation of Article 2.1 of 
the Agreement  on Safeguards .50 Japan contends that it has, at vario us junctures, claimed 
violation  of Article 2.1. However, India submits that Jap an did not make any claim with resp ect to 
the violation  of Article  2.1 per se  and all its claims are merely consequential. India further submits 
that a mere reference by Japan to an Appellate Body report cannot be construed as an 
independen t claim of violation of Article  2.1. India submits that the facts of the present case are 
similis  to the panel 's finding in Korea  – Dairy  to the extent that J apan has merely stated 
(without  specifically claiming) that India violated  Article 2.1 of the Agreement on Sa feguards and 
all the claims regarding such violation are merely consequential.  However, in its 
submissions,  Japan  did not specifically claim nor did it submit any evid ence in respect of violation 
                                                
41 Japan 's response to Panel question  No. 94 , para . 39. 
42 Japan's first written s ubmission, para . 179. 
43 Japan 's response to Panel question  No. 94 , para . 40. 
44 India's first written submission, paras. 118-140. 
45 Japan 's response to Panel question  No. 94, para . 40. 
46 India's comments on Japan 's response  to Panel question No.  94, para . 35. 
47 Japan 's response to Panel question  No. 96. 
48 India's comments on Japan 's response  to Panel question No. 96,  para. 39. 
49 India's response to Pane l question No. 99.  
50 India's first written submission,  para. 120. WT/DS518/R/Add.1  
 
- 58 - 
 
  of Article  2.1. India submits that in such circumstances, the Panel may refrain from ruling upon 
the alleged violation of  Article 2.1 of the  Agreement on Safeguards.51 
 
24. Japan contends that the Indian a uthority failed to make a qualitative analysis of the "increase 
in imports ".52 In this regard, India observes that the throughout its submission, Japan 's emphasis 
has been on suggesting alternate methods of investigation instead of demonstrating any 
shortco ming or lacuna in the investigations carried out by India. In fact, Japan 's claims are not only 
in the form of alternative methodologies but effectively seek to cast more onerous burden than what 
is envisaged under the Agreement on Safeguards or the GATT 1 994. India has indeed demonstrated 
through its First Written Submissions that the increase in imports was recent, sudden, sharp and 
significant.53 
 
Japan failed to substantiate its claim regarding improper determination of Domestic 
Industry  
 
25. Japan seems  to disagree with India 's contention that there is no violation of Article 4.1(c) 
because the producers included in the domestic industry accounted for more than 67% and therefore 
constituted a "major proportion " of the total domestic production. As alread y explained in India 's 
First Opening Statement, the term "domestic industry " under Article 4.1(c) of the Agreement on 
Safeguards is defined as "the producers as a whole  of the like or directly competitive product s" or 
"those whos e collective  output of the like or directly competitive products constitutes a major 
proportion  of the total domestic production  of those products ". It is undisputed  that Article 4.1(c) of 
the Agreement  on Safeguards pr ovides two options for defining  the term "domesti c industry ". The 
first option is to take "producers  as a whole " as domestic industry; meaning thereby that all the 
producers in the territory of the member that are engaged in the manufacture of the like or directly 
competitive products, are understood as "domestic industry ". Under the second option, the term 
"domestic industry " shall be understood as  producers in the territory of the member that are 
engaged in the manufacture of the like or directly competitive products whose collective  output of 
the like or directly competitive  products  constitutes a major proportion  of the total domestic 
production  of those products ".54 
 
26. Under the second  option, the Agreement on Safeguards consciously does not specify any 
precise definition in terms of a percentage of total production to qualify the test of "a major 
proportion " presumably for the reason that such a prescription would have created practica l and 
conceptual difficulties . For example, any prescription of a particular percentage, say more than 50% 
for applying the test of "major proportion " in Article 4.1(c) of Agreement on Safeguards in the 
context of fragmented industry, may result in practic al difficulties not only for data collection but 
also for injury and causation analysis. India considers that it i s in this backdrop that Article  4.1(c) 
of the Agreement on Safeguards is silent on what proportion of total production of domestic 
producers m ust be taken into consideration for evaluating whether a certain percentage  constitutes 
"a major proportion ".55 
 
27. Japan places reliance on Russia – Commercial Vehicles to assert that the determination of the 
Domestic Industry by the Competent Authority w as flawed. In this regard, India submits that Japan 's 
reliance on Russia – Commercial Vehicles  is completely misplaced in the facts and circumstances of 
the present case. The panel in Russia – Commercial Vehicles  had found that the investigating 
authority:  (a) had decided not to include a domestic producer of the like product after having 
reviewed that producer 's data; and (b) had not provided the reasons for the exclusion of that 
producer in the investigation report. On the contrary, the present case is no t about the exclusion of 
certain domestic producer. In the present case, even though there was no legal obligation to refer 
to the rest of the producers not constituting the domestic  industry, nevertheless questionnaires were 
sent to all other known produc ers of the PUC, as reflected in the Final Findings.56 Japan fails to 
appreciate that in the absence of cooperation from any interested party, the Competent Authority is 
required only to ensure that the information and data relied upon for reaching its concl usions meet 
                                                
51 India's opening  statement at the second substantive meeting  of the Panel , para . 18. 
52 Japan 's second written s ubmission , para. 103. 
53 India's first written submission, paras. 118-140. See, India's opening statement at the 
second  substantive meeting  of the Panel , para . 21. 
54 India's opening statement  at the first substantive meeting of the Panel, paras . 16-17. 
55 India's opening statement at the second substantive meeting  of the Panel , para . 25. 
56 Final Findings , (Exhibit IND -11), para . 2. WT/DS518/R/Add.1  
 
- 59 - 
 
  the requirements set out under the Agreement on Safeguards.57 
 
28. Further, in response  to question 104 by the Panel, Japan agrees that the facts in Russia – 
Commercial Vehicles  and in the investigation at issue are different. However, Japan claims that  the 
way the Indian authority determined the domestic industry introduced a material risk of distortion. 
Japan also makes an assumption that, in the present case, the Indian author ity received information 
concerning all six domestic producers but only three were included as a part of the domestic industry. 
Japan states that although the three producers (not included in the domestic industry), did not 
expressly indicate their willing ness to be included in the domestic industry, they had provided 
information in the application and expressly supported the application.58 
 
29. India vehemently denies the claims made by Japan as they are neither supported by facts of 
the case or the informa tion available on record nor are they supported by any evidence. Indeed, 
even though there was no legal obligation to refer to the rest of the producers not constituting the 
domestic  industry, the Competent Authority nevertheless sent questionnaires to all  other known 
producers of the PUC, as reflected in the Final Findings.59 In fact, since the other domestic producers 
did not respond to the questionnaire sent to them by the Competent Authority or sent any request 
for being considered as an interested party , the said other domestic producers were not even 
considered as interested parties in the present investigation.60 Japan 's claim that the Competent 
Authority had the data and information pertaining to the domestic producers not constituting 
domestic industr y is also not supported by any evidence on record. Japan fails to appreciate that in 
the absence of cooperation from domestic producers not constituting domestic industry , the 
Competent Authority is required only to ensure that the information relied upon to reach its 
conclusions, meets the requirements under the Agreement on Safeguards.61 
 
30. While Japan considers the method of determination of domestic Industry by India as a "mere 
quantitative approach ", it fails to present any alternative method of such determination or point out 
any legal inconsistency in the method adopted by the Competent Authority. In any case, Japan has 
failed to place on record any averment or evidence to substantiate their apprehensions. India 
respectfully submits that injury deter mination of Competent Authority is based on wide -ranging 
information regarding domestic producers and is not distorted or skewed as is evident from the 
details in the Final Findings .62 
 
31. In question 106 when Panel asked Japan to substantiate its claim th at only the alleged low 
performing producers were on purpose  included into the definition of the domestic industry, Japan 
states that such evidence is not necessary.  
 
32. Japan further alleges that in the present case there was a 'self selection ' of the Domestic 
Industry by the domestic producers.63 India submits that the Japan 's contention is presumptuous as 
there was neither any 'self-selection ' by the Domestic Industry nor any 'automatic acceptance ' by 
Competent Authority. Japan fails to appreci ate that in the absence of cooperation from any interested 
party, the Competent Authority is required only to ensure that the information and data relied upon 
for reaching its conclusions meets the requirements set out under the Agreement on Safeguards. In  
any case, Japan failed to indicate any alternate method by which the Competent Authority could 
have examined the other producers whose data was also not available with the Competent 
Authority.64 
 
33. India submits that Japan 's claim with respect to violati on of Articles 4.1(a), 4.1(b), 4.2(a) 
and 4.2(b) is based on the presumption that the determination of the "domestic industry " by 
the Competent  Authority is inconsistent with its obligations u nder Article 4.1(c) which 
India vehemently denies. As explained earlier, India has sufficiently established that its 
determination of the "domestic industry " was wholly consistent with the p rovisions of Article  4.1(c).65 
                                                
57 India's response to Panel questi on No. 105. 
58 Japan 's response to Panel question  No. 104. 
59 Final Findings , (Exhibit IND -11), para . 4. 
60 Final Findings , (Exhibit IND -11), para . 5. 
61 India's comments on Japan 's response  to Panel question No.  104, para . 45. 
62 Final Findings , (Exhibit IND -11), paras . 24-26. See also,  India's opening statement at the 
second  substantive meeting  of the Panel , para . 29. 
63 Japan 's response to Panel question  No. 106.  
64 India's comments on Japan 's response  to Panel question No. 106 , para . 48. 
65 India's opening statement at the second substantive meeting  of the Panel , para . 30. WT/DS518/R/Add.1  
 
- 60 - 
 
  Japan 's claims regarding improper determination of serious injury and threat thereof are 
without merit  
 
34. Japan stated in its Second Written Submission that the standard of serious injury is, on its 
face, "very high " and "exacting .66 It further contends that India misread the Appellate Body 's findings 
in US – Wheat Gluten  when it argues that "the ter m 'exacting ' was used in the context of the 'legal 
standard in the Agreement on Safeguards ' and not for 'serious injury ' itself".67 In this regard, India 
reiterates that "serious injury " is defined under Article 4.1(a) of the Agreement on Safeguards as "a 
significant overall impairment in the position of a domestic industry " and there is no obligation, 
explicit or implicit, that the standard of "serious injury " set forth in Article 4.1(a) is, on its face, "very 
high" and "exacting ", as proposed by Japan.68 India also reiterates that the observation of the 
Appellate Body was unambiguously in the context of making a contradistinction between the term 
"material  injury " in the Anti -dumping Agreement and "serious injury " as defined under Agreement 
on Safeguards. India further submits that while the term "serious injury " may be of a higher standard 
as compared to "material injury " under the Anti -dumping Agreement, the observations of the 
Appellate Body cannot be construed to give the term "serious injury " the status of an absolute 
standard, as proposed by Japan. The obligations of the Members in terms of Article 4.1(a) have to 
be understood and given its meaning within the framework of the Agreement on Safeguards and 
there is no room for casting any additional burden or obligation on a Member than what is specifically 
provided in the Agreement on Safeguards.69 In other words, the Appellate  Body merely stressed the 
point that the legal standards have to be exacting which canno t be construed to mean that the 
assessment of "serious injury " itself ought to be "exacting ".70 
 
35. With regard to Japan 's contentions relating to oblig ations imposed on the 
competent  authorities  in the context of the serious injury analysis71, India reiter ates that the 
Competent Authority in its findings has not only evaluated the listed factors in Article 4.2(a) to justify 
a determination of 'serious injury ' under the Agreement on Safeguards "72 but has also  thoroughly 
evaluated the overall position of the d omestic indust ry in light of all the relevant  factors having a 
bearing on a situation of that industry in order to determine that there is 'a significant  overall 
impairment ' in the position of that industry ".73 The Competent Authority has indeed conducted a  
substantive evaluation of the 'bearing ', or the 'influence ' or 'effect ' or 'impact ' that the relevant 
factors have on the 'situation of the domestic industry ' as suggested  in the Appellate Body  Report, 
US – Lamb .74 
 
36. Japan disagrees with India 's argument that the "other factors " that must be examined in the 
framework of the non -attribution analysis pursuant to Article 4.2(b) are factors that are found by 
the competent authorities to be "relevant ".75 In India 's view, whether a factor is "relevant " depends 
on whether it is "of an objective and quantifiable nature " and "having a bearing on the situation " of 
the domestic industry pursuant to Article 4.2(a). India claims that "it is only after the Competent 
Authority decides about the 'relevance ' of a factor applying the twin criteria that the obligation of 
carrying out the non -attribution analysis in terms of the second part of Article 4.2(b) shall arise ".76 
 
37. Further, Japan contends that there is no textual basis to support India 's understanding tha t 
the "other factors " examined under Article 4.2(a) and Article 4.2(b) of the Agreement on Safeguards 
should be identical. According to Japan, the "other factors " examined pursuant to Article 4.2(b) in 
the context of the non -attribution analysis are factor s which have an effect on the state of the 
domestic industry.77 India submits that Japan is attempting to read words and phrases which are 
not a part of the Agreement. There is nothing in the text of the Article to suggest that the non -
attribution obligatio n requires a distinct examination in the context of "factors which have an effect 
on the state of the domestic industry ". It is submitted tha t the two paragraphs of Article  4.2 cannot 
                                                
66 Japan 's second written submission , para . 135. 
67 Japan 's second written submission , para . 136. 
68 India's opening statement at the second substantive meeting  of the Panel , para . 33. 
69 India's opening statement at the second substantive meeting  of the Panel , para . 34. 
70 India's first written s ubmission, para . 180. 
71 Japan 's second written submission , section E. 2 (ii) , paras . 138-142. 
72 Appellate Body Report, Argentina – Footwear (EC), para . 138. 
73 Appellate Body Report, Argentina – Footwear (EC) , para . 139. 
74 Appellate Body Report, US – Lamb , para. 104. See also , India's opening statement at the 
second  substantive meeting  of the Panel , para . 36. 
75 India's first written submission,  paras. 276, 278 and 279.  
76 India's first written submission, para . 279. See, India 's second w ritten submission , para. 16. 
77 India's second written submission , para. 17. WT/DS518/R/Add.1  
 
- 61 - 
 
  be read disjunctively as is being suggested by Japan. It is very clear from a plain reading of 
Article  4.2(a) that in the investigation to determine whether increased imports have caused serious 
injury or are threatening to cause serious injury, the competent authorities shall evaluate "all 
relevant  factors ". Thus, the examination is not restricted to some factors but extends to all relevant 
factors of an objective and quantifiable nature having a bearing on the situation of the industry. It 
is important to note that Article 4.2(b) is intricately linked to Arti cle 4.2(a) inasmuch as the opening 
sentence itself states that "The determination referred to in sub -paragraph (a) shall not be made  …". 
Thus, it is clear that Article 4.2(b) only imposes an additional burden on the competent authorities 
to demonstrate the  causal link between increased imports and serious injury based on the 
examination of the factors referred to in Article 4.2(a).78 
 
38. Further, the last sentence of Article 4.2(b) merely prohibits the competent authorities from 
attributing injury caused by "factors other than increased imports " to increased imports . In India 's 
view, there is no independent or separate identification envis aged under Article 4.2(b). Therefore, 
the phrase "factors other than increased imports " has to be necessarily understood to refer to only 
those factors that have been found to be relevant in terms of Article 4.2(a). It also needs to be 
appreciated that the  last sentence of Article 4.2(b) does not envisage any independent evaluation 
but only presupposes an analysis elsewhere which obviously is under Article 4.2(a). It may also be 
noted that unlike Article 3.5 of the Anti -dumping Agreement, no separate identi fication of "other 
factors " is envisaged under Article 4.2(b) of the Agreement on Safeguards. Accordingly, Japan 's 
reference to the panel 's findings in EC – Tube or Pipe Fittings  is also misplaced.79 
 
39. Further, as confirmed by India in response to questi on 11980 by the Panel, there is no conflict 
in the decision of the Appellate Body in US – Line Pipe  and India 's argument that there is no 
independent or separate identification envisaged under Article 4.2(b). In India 's view, the factors 
required to be anal yzed in terms of Article 4.2(b) are the ones  identified in terms of Article  4.2(a). 
India's view is also fully supported by the report of the panel in US – Steel. 
 
40. Regarding Japan 's claim of mismatch in the figures of inventories, production and sales,  India 
has already clarified in its First Written Submissions that the production, sales and inventories have 
been duly verified from the excise records of the domestic industry  and that they were correct.81 
Further, regarding the issue of annualization of data, India reiterates that the data for one quarter 
has been annualized to make it comparable to the full year data of the preceding periods. No 
estimate or forecast for the full year has been done for the  purpose of "serious injury " analysis.82 
Annualization does not result in a change in the POI but is only a statistical tool used for comparing 
periods which are dissimilar. In India 's views, whenever the periods are different over the length of 
the investi gation period, the only methodology that can be adopted for a proper comparison is to 
bring the periods to a common denominator. For instance, if the period of investigation is nine 
months, it cannot be directly compared to a preceding period of 12 months.83 
 
41. Japan also asserts that the analysis of "further threat of greater serious injury " as examined 
under the Final Findings of the Competent Authority, does not have any legal basis and the same is 
different from "threat of serious injury " as prescribed  in the Agreement on Safeguards. In this 
regard, India reiterates that the expression "further " has been used in the context of the findings of 
the Competent  Authority with regard to the existence of "threat of serious injury " as reflected in 
paragraphs 10 0 and 101 of the Final Findings.84 Therefore, Japan 's contention in this regard is 
without any merit.85 
 
                                                
78 India's second written submission , para. 18. 
79 India's second written submission , para. 19. 
80 India's response to Panel question  No. 119.  
81 India's first written submission , para . 228. 
82 India's response to Panel  question  No. 31. 
83 India's response to Panel  question  No. 95. 
84 India's response to Panel question  No. 47. See also , India's opening statement at the 
second  substantive meeting  of the Panel , para . 42. 
85 India's opening statement at the second substantive meeting  of the Panel , para . 39. WT/DS518/R/Add.1  
 
- 62 - 
 
  42. Japan, while relying on its First Written Submission, also reiterated that India 's determination 
does not meet the standard of "threat of serious inj ury".86 India submits  that it has clearly 
demonstrated in its First Written Submissions87 that apart from the existence of serious injury, there 
was also a further threat of serious injury to the domestic industry.88 
 
Japan 's claims regarding determination of  the causal link are without merit  
 
43. India submits that it has clearly established the causal link between the alleged increase in 
imports and the alleged serious injury and threat thereof to the domestic industry as required by 
Article 4.2(b) . Further,  the determination of the Competent Authority has also demonstrated that 
the increased imports had caused or were threatening to cause serious injury to the domestic 
industry as required by Articles 2.1 and 4.2(a) of the Agreement on Safeguards and Article  XIX:1(a) 
of the GATT 1994.89 
 
44. Japan contends that in the present case there was no overall coincidence in time between the 
movements in imports and the movements in injury. India submits that Japan 's contention is bereft 
of factual support. The Compete nt Authority in its findings has discussed and come to a conclusion 
that while the imports have gone up, the domestic industry has lost its share in the same period . At 
the same time, decline in profitability of the domestic industry is also of exactly the  same period 
when the increased imports have taken place . As a matter of fact, the entire injury analysis is for 
the period when the increased imports have taken place.90 Further, the Competent Authority has 
clearly held that there is a direct correlation  (emphasis added) between the increase in imports and 
serious injury suffered by the domestic industry as imports in absolute terms increased 
approximately three times during the year 2015 -16 (Annualized on the basis of the figures of Q1) 
as compared to base  year 2013 -14. The domestic industry 's market share declined so did the landed 
price of imports per ton. Consequently, the domestic industry has suffered losses. It is, thus, evident 
that injury to the domestic industry has been caused by the increased imp orts.91 Clearly, in the facts 
of the present case, the Competent Authority has not only established a mere "coincidence " but has, 
as a matter of fact, established a "direct correlation " between the increase in imports and serious 
injury suffered by the dome stic industry.92 
 
45. Further, India reiterates that the Competent Authority is required to establish a relationship 
between the movements in import  volume  and the movements in only those factors which are held 
to be a cause of injury . India asserts that it  would be logically incorrect to link the injury to those 
factors which are admittedly not a cause of injury, as proposed by Japan.93 
 
Japan 's Claims regarding violation of the Article 5.1 and 7.1 of the Agreement on 
Safeguards and Article XIX:1(a) of the G ATT 1994 are without merit  
 
46. Japan has clarified that its claims under Articles 5.1 and 7.1 of the Agreement on Safeguards 
are consequential to a finding of violation of Article 4.2(b) of the Agreement on Safeguards. Japan 
seems to indicate that its ent ire claim of violation of Article 5.1 and 7.1 is based on the presumption 
of improper non -attribution and therefore, a violation of Article 4.2(b).94 Further, in response to 
question 127 by the Panel, Japan seems to change its stance and accept th at a viola tion of 
Article  4.2(b) of the Agreement on Safeguards does not necessarily mean a violation of Article 5.1. 
Contrary to the position taken earlier where Japan disagreed with India 's understanding that the 
violation of non -attribution analysis does not nece ssarily lead to a violation of Article 5.1, Japan 
seems to concede the point.95 
 
                                                
86 Japan 's second written submission , para . 182. 
87 India's first written submission, paras. 237 -243. 
88 India's opening statement at the second substantive meeting  of the Panel , para . 40. 
89 India's first w ritten submission, paras. 244 -291. See also , India 's opening statement at the 
second  substantive meeting  of the Panel , para . 42. 
90 India's opening s tatement at the second substantive meeting  of the Panel , para . 43. 
91 Final Findings , (Exhibit IND -11), p ara. 66 . See also , India 's opening statement at the 
second  substantive meeting  of the Panel , para . 44. 
92 India's opening statement at the second substantive meeting  of the Panel , para . 45. 
93 India's first written submission , para. 261 . See also , India 's opening statement at the 
second  substantive meeting  of the Panel , para . 46. 
94 Japan 's response to Panel  question  No. 62. 
95 Japan 's response to Panel question No.  63. WT/DS518/R/Add.1  
 
- 63 - 
 
  47. In response to the questions posed by the Panel subsequent to the first substantive meeting96 
and in its opening oral statement at second substantive meeting97, India clarified that in its 
understanding a violation of non -attribution analysis does not necessarily  lead to a violation of 
Article  5.1 and Article 7.1. It may be recalled that India has relied u pon the text of Article 5.1 and  7.1 
which does not contain any in dication or even a suggestion that a violation of the non -attribution 
requirement would necessarily lead to an inconsistency of the measure at issue with Articles 5.1 and 
7.1 of the Agreement on Safeguards.98 India has clearly demonstrated that in the prese nt case, 
India has fully complied with each and every requirement of Article 4.2(b) of the Agreement on 
Safeguards. Further, India has also demonstrated through its First Written Submissions and 
subsequent submissions99 that the duties levied were only to t he extent necessary in ter ms of 
Article  5.1 of Agreement on Safeguards. India further submits that Japan has clearly failed to even 
indicate how the duties levied by India are not only to the extent necessary and what should have 
been the extent of duties which would have been proper in its understanding. Therefore, Japan has 
completely failed to establish even a prima facie  case that the duties levied by India were not only 
to the extent necessary to counter the injurious effects of increased imports.100 
 
Japan 's Claims regarding violation of Article 3.1, Article 4.2(c) and Article 11.1(a) are 
without merit  
 
48. Japan 's claim regarding the violation of Article 3.1, Article 4.2(c) and Article 11.1(a) are wholly 
consequential to its presumption that by way of  measures at issue, India has violated other 
provisions and requirements under GATT 1994 and Agreement on Safeguards.101 India submits that 
since it has fully complied with the obligations under the GATT 1994 and the Agreement on 
Safeguards, there can be no question as to the violation of Article 3.1, Article 4.2(c) and 
Article  11.1(a). Therefore, the Panel should reject the contention of Japan in this regard.102 
 
 
_______________  
 
 
                                                
96 India's response to Panel question  No. 63. 
97 India's opening statement at the second substantive meeting  of the Panel , para . 49. 
98 India's response to Panel q uestion No. 127. 
99 India's opening statement at  the first substantive mee ting of the Panel . 
100 India's comments on Japan 's response  to Panel question No. 127 , para . 62. 
101 Japan 's second written submission , para s. 244-245. 
102 India's opening statement at the  second substantive meeting  of the Panel , para . 50. WT/DS518/R/Add.1  
 
- 64 - 
 
   
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated execut ive summary of the arguments of Australia  65 
Annex  C-2 Integrated execut ive summary of the arguments of the European Union  68 
Annex  C-3 Integrated executive summary of the arguments of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu  70 
Annex C -4 Integrated execut ive summary of the arguments of Ukraine  72 
Annex C -5 Integrated execut ive summary of the arguments of the United States  73 
 
 WT/DS518/R/Add.1  
 
- 65 - 
 
  ANNEX C -1 
INTEGRATED EXECUT IVE SUMMARY OF  
THE ARGUMENTS OF AUS TRALIA  
I. Introduction  
 
1. Australia 's written submission and response to questions in this dispute have addressed the 
proper interpretation of Article XIX:1(a) of GATT 1994 and the Agreement on Safeguards 
(Safeguards Agreement) with respect to the constituent elements of a safeguard measure . Drawing 
on this analysis, Australia has examined the parties ' arguments with respect to:  
 
i. the "logical connection " between the effect of obligations incurred under the GATT  1994 
and the increase in imports that causes or  threatens to cause serious injury to like domestic 
industry;  
 
ii. the application of obligations under Article I:1 of the GATT with respect to the disputed 
safeguard measure; and  
 
iii. the application of obligations under Article II:1(b) of the GATT with respect the disputed 
safeguard measure.  
 
II. The proper interpretation of Article XIX:1(a) of the GATT 1994  
 
2. In Australia 's view, Article XIX:1(a) of GATT 1994 provides clear direction for determining 
whether a measure contains the constituent elements of a safeguard measure . It enables a Member 
to temporarily suspend an obligation incurred under the GATT 1994 where as a result of that 
obligation, a product is imported in such increased quantities and under such conditions as to cause 
or threaten to caus e serious injury to the Member 's domestic industry producing like products . The 
Appellate Body has confirmed this view:  
 
… only in situations when, as a result of obligations incurred under the GATT 1994, a 
Member finds itself confronted with developments it had not "foreseen " or "expected " 
when it incurred that obligation . The remedy that Article XIX:1(a) allows in this situation 
is temporarily to "suspend the obligation  in whole or in part[ "]…1 (emphasis added)  
3. In Australia 's view, Article XIX:1(a) the refore establishes that a "safeguard measure " is a 
measure that:  
 
i. suspends a Member 's obligation under the GATT 1994 or withdraws or modifies a 
Member 's scheduled tariff concession; and  
 
ii. suspends that GATT obligation, or withdraws or modifies that c oncession, with the aim 
of addressing serious injury to the Member 's like domestic industry caused or threatened by 
a surge of imports resulting from the obligation or concession at issue.  
 
4. In Australia 's view, these two elements can be seen as: (i) the content  of a safeguard; and 
(ii) the objective  of a safeguard . Both must be present for a measure to constitute a safeguard 
measure.  
 
III. The Parties ' arguments with respect to the "logical connection " between the effect 
of obligations incurred under the GATT 1994 and the increase in imports that causes 
or threatens to cause serious injury to like domestic industry.  
 
5. Japan claims India has violated Article XIX:1(a) of the GATT 1994 because it failed to 
demonstrate a "logical connection " between the effect of the obli gations incurred under the 
GATT  1994 and the increase in imports causing or threatening to cause serious injury to its like 
                                                
1 Appellate Body Reports, Argentina – Footwear (EC) , para. 93; and Korea – Dairy , para. 86.  WT/DS518/R/Add.1  
 
- 66 - 
 
  domestic industry.2 In response, India claims the logical connectio n exists through the existence of 
tariff concessions for the relevant product.3 
 
6. As set out above, Australia holds the view that the suspension, withdrawal or modification of 
a GATT obligation through a safeguard measure must be undertaken with the aim of addressing 
serious injury to the Member 's like domestic industry caused or threatened by a surge of imports 
resulting from the obligation or concession at issue . The mere existence of an obligation or 
concession would not be satisfactory to demonstrate the logical connection between the effect of 
the obligations incurred and the surge in imports . The Appellate Body has noted there must be:  
 
… [a] logical connection between the circumstances described in the first clause – "as a 
result of unforeseen deve lopments and of the effect of the obligations incurred by a 
Member under this Agreement, including tariff concessions… " – and the conditions set 
forth [regarding increased imports] in the second clause of Art XIX:1(a) for the 
imposition of a safeguard.4 
7. In the current dispute, Australia considers that if India 's measure did not in fact suspend, 
withdraw or modify its bound tariff concession of 40 per cent under GATT 1994, the Panel should 
find that the measure lacked the requisite content of a safeguard . It therefore would not constitute 
a safeguard measure under Article XIX:1(a) of the GATT 1994.  
 
IV. The application of obligations under Article I:1 of the GATT 1994 with respect to the 
disputed safeguard measure  
 
8. Japan submits India has violated Arti cle I:1 of GATT 1994 because its purported safeguard 
measure does not apply equal tariffs to all WTO Members.5 India submits it is permitted to suspend 
the obligations in Article I:1 of GATT 1994 through a safeguard measure.6 India further submits that 
Article 9 of the Safeguards Agreement permits the application of safeguard measures in a manner 
which favors developing country WTO Members.7 
 
9. In light of the requisite link between the content and objective of a safeguard, o utlined above, 
Australia submits that a "suspension " of MFN obligations under Article I:1 in the application of a 
safeguard measure is permitted only to the extent that this derogation addresses the cause or threat 
of serious injury to the like domestic in dustry .  
 
10. Australia 's view is supported by the Panel in  Indonesia – Iron or Steel Products , which said it 
failed to see:  
 
… how a course of action that dilutes  the protective impact of a safeguard measure … 
could result in the suspension of a Member 's MFN obligations under Article I:1 for the 
purpose of  Article XIX:1(a), given that the fundamental objective of Article XIX:1(a) is 
to allow Members to "escape " their GATT obligations to the extent necessary to prevent 
or remedy serious injury to a domestic  industry.8 (original emphasis modified)  
11. The panel further noted:  
 
… the discriminatory application of a safeguard measure for the purpose of affording 
[special and differential treatment] pursuant to Article 9.1 [of the Safeguards 
Agreement] does not result in a suspension of a Me mbers obligations under Article  I;1, 
within the meaning of Article XIX:1(a) of the GATT 1994.9 (original emphasis)  
12. Therefore, where the obligation or concession being suspended, withdrawn or modified did 
not contribute  to the surge in imports which injured or threatened to injure domestic industry 
                                                
2 Japan's first written s ubmission, paras. 152, 162 -3. 
3 India's first written s ubmission, paras. 117 -118. 
4 Appellate Body Report, US – Steel Safeguards , para. 317, referring  to Appellate Body Reports, 
Argentina – Footwear (EC) , para. 93; and Korea – Dairy , para. 86.  
5 Japan' s first written s ubmission, para. 521.  
6 India' s first written s ubmission, paras. 337, 342.  
7 India' s first written s ubmission, paras. 337, 342.  
8 Panel Report, Indonesia – Iron or Steel Products , para. 7.28.  
9 Panel Report, Indonesia – Iron or Steel Products , para. 7.30.  WT/DS518/R/Add.1  
 
- 67 - 
 
  producing like goods, the requisite o bjective  of the safeguard measure is not present . Where the 
objective of the purported safeguard measure is not present, then no safeguard  has been imposed . 
In such circumstances, obligations under Article I:1 of GATT 1994 have not been suspended, and 
the exception under Article 9.1 of the Safeguards Agreement cannot apply.  
 
V. The application of obligations under Article II:1(b) of the GAT T 1994 with respect 
to the disputed safeguard measure  
 
13. Japan submits that India violates Article II:1(b) of GATT 1994 because through the measures 
at issue, India imposes "other duties or charges " in violation of the second sentence of that 
provision; and that while the disputed measures are duties levied in customs, as safeguard measures 
they are by nature "extraordinary " or "exceptional " and not "ordinary " measures.10 India submits 
that since the measures at issue were imposed in pursuance of Article XIX of the GATT 1994, the 
obligation of India under Article II:1(b) ipso facto is suspended, and therefore the question of any 
violation under Article II:1(b) does not ari se.11 
 
14. In the present dispute, India 's Schedule permitted it to impose a tariff rate of 40 per cent on 
the particular products at issue.12 Prior to imposing the purported safeguard measure, India applied 
a tariff rate in the order of 7.5 per cent – well below its scheduled tariff concession.13 To address 
"the effect of such low applied tariffs ",14 India imposed a purported safeguard measure comprising 
an additional tariff of around 10 - 20 per cent.15 
 
15. In these circumstances, neither the content  or objec tive of a safeguard measure are present:  
 
i. India's imposition of the purported safeguard measure did not in fact withdraw or 
modify its scheduled tariff concession of 40 per cent; and  
 
ii. India's imposition of the purported safeguard measure did not in fact address serious 
injury to its like domestic industry caused or threatened by a surge of imports resulting from 
its scheduled tariff concession of 40 per cent.  
 
16. As such, Australia does not consider that India 's measure constitutes a safeguard measu re 
within the meaning of Article XIX of the GATT 1994 and the Safeguards Agreement.  
 
VI. Conclusion  
 
17. In summary, Australia submits that this dispute provides an opportunity for the Panel to clarify 
a number of questions of legal interpretation regardi ng the scope and application of provisions in 
the GATT 1994, and Safeguards Agreement. In Australia 's view, the constituent content and 
objective  of a safeguard measure are not present in this instance . In light of that, India has failed 
to implement a saf eguard measure, and the measure it has implemented contravenes a number of 
GATT obligations.  
 
                                                
10 Japan's first written s ubmission, paras. 503, 513.  
11 India's first written s ubmission, paras. 344, 346.  
12 India's first written s ubmission, para. 48.  
13 Japan's first written s ubmission, paras. 160 - 163; also India's first written s ubmission, para. 49.  
14 Japan' s first written s ubmission, para. 160 . 
15 Japan' s first written s ubmission, paras. 27 - 30. WT/DS518/R/Add.1  
 
- 68 - 
 
  ANNEX C -2 
INTEGRATED EXECUT IVE SUMMARY OF  
THE ARGUMENTS OF THE  EUROPEAN UNION   
I. APPLICABILITY  OF THE  AGREEMENT  ON SAFEGUARDS  
 
1. A measure should be deemed a safeguard within the meaning of Article XIX of GATT 1994, 
when it: (i) suspends an obligation under the GATT 1994 or withdraws or modifies a scheduled tariff 
concession; (ii) with purpose of remedying or preventing injury caused by an in crease in imports. 
The obligation that may be suspended in accordance with the last part of Article XIX:1(a) of the 
GATT 1994 refers to the obligation which, according to the first part of the Article, has given rise to 
the increase in imports which has ca used or threatens to cause serious injury.  
 
2. In the view of the EU, the nature of a safeguard measure under Article XIX of GATT 1994 is 
that of a derogation to obligations or commitments entered into by WTO Members. If a measure, 
defined as a tariff incr ease or a quantitative restriction, adopted by a WTO Member does not amount 
to such a derogation, it is not a safeguard measure within the meaning of Article XIX of GATT 1994 
and, consequently, does not fall under the Agreement on Safeguards. The EU notes in this respect 
that the Agreement on Safeguards provides for the possibility of compensation and that several 
provisions make reference to the need to maintain a "substantially equivalent level of concessions 
and other obligations " once the safeguard meas ure has been adopted, precisely because of its 
inherent nature of derogation to those concessions. This reference would not make sense if a 
safeguard measure would not lead to a suspension of obligations or concession since, in that case, 
there would be no thing to compensate for.  
 
3. Unlike the anti -dumping rules that apply to any "specific action against dumping " of exports, 
Article XIX of GATT 1994, read together with the Agreement on Safeguards, makes clear that certain 
measures can only be considered as  safeguards if they suspend an obligation under the GATT 1994 
in whole or in part or withdraw or modify a concession.  
 
4. Therefore, an increase of the applied tariff rate, while still remaining at or below the level of 
the bound tariff rate, would thus n ot require (or indeed allow) the adoption of safeguard measures.  
 
5. The application of Article 9.1 of the Agreement on Safeguards does not qualify a specific 
measure as a safeguard measure for the purposes of Article XIX GATT 1994 and the Agreement on 
Safeguards, but rather presupposes the existence of a safeguard. The application of Article 9.1 of 
the Agreement on Safeguards does not violate the MFN obligation in Article I:1 of GATT 1994 as the 
former prevails if and to the extent there is a conflict wit h the latter.  Moreover, if compliance with 
the obligation under Article 9.1 were to be tantamount to a suspension of an obligation within the 
meaning of Article XIX of the GATT 1994, that would mean that compliance with an obligation under 
the Agreement on  Safeguards would give rise to compensation rights for other Members under 
Article 8 of the Agreement on Safeguards without  suspension, withdrawal, or modification of 
obligations or concessions that caused the alleged serious injury. Clearly such a result would be 
absurd.  
 
6. Article 9 in practice operates as a limited exception to the non -discrimination obligation as 
reflected in Article 2.2 of the Agreement on Safeguards for safeguards measures and the 
MFN principle, as reflected in Article I:1 of the GAT T 1994 for trade in goods generally. However, in 
the absence of language clearly designating it as an exception to these provisions, this should be 
dealt with as a case of legal conflict between obligations which are simultaneously applicable but 
mutually exclusive. According to the General Interpretat ive Note to Annex 1A to the 
WTO Agreement, which deals with conflicts between the GATT 1994 and any of the other agreements 
in Annex 1A, including the Agreement on Safeguards, priority should be given to the A greement on 
Safeguards, which prevails if and to the extent there is a conflict. As f or the conflict between 
Article  2.2 and 9.1 of the Agreement on Safeguards, the principle of lex specialis directs to set aside 
the general obligation under Article 2.2 in  favour of the more specific obligation under Article 9.1 to 
the extent there is a conflict between them.  WT/DS518/R/Add.1  
 
- 69 - 
 
  7. The nature of duties imposed following a safeguard investigation ordinary is contingent upon 
their design and structure. If they have the essential  attributes of customs duties they could be 
qualified as "ordinary customs duties " within the meaning of Article II:1 of the GATT 1994; otherwise 
they fall in the residual category of "other duties or charges of any kind ". In the present case, the 
EU consi ders that the duties imposed are "ordinary customs duties " within the meaning of Article  II:1 
of the GATT 1994.  
 
8. The EU also notes that while a Member could carry out a safeguards investigation in 
accordance with the procedures of the Agreement on Safeg uards, the ensuing measures in the form 
of an increase in the tariff may not need to go above the bound rate in order to "prevent or remedy 
serious injury and to facilitate adjustment ". In such circumstances, it is plausible to argue that the 
Agreement on Safeguards would nonetheless apply to all acts that have already taken place.  
 
9. Finally the European Union submits that the wording "obligations " in the first clause in in 
Article XIX:1(a) of the GATT 1994 includes all obligations incurred under the GATT  1994. However, 
some obligations are not capable of causing an increase in imports under such conditions as to cause 
or threaten serious injury to domestic producers. For ex ample, Article XXIV of the GATT  does not 
appear to impose obligations under the GAT T 1994 that are capable of causing an increase in imports 
under such conditions as to cause or threaten serious injury to domestic producers.  
 
II. CLAIMS UNDER ARTICLE II:1( B) AND ARTICLE I:1 OF THE GATT  1994  
 
10. The EU submits that safeguard measures, within the meaning of Article 1 of the Agreement 
on Safeguards, which comply with the conditions and disciplines set out under Article X IX of 
the GATT 1994 and the Agreement on Safeguards, do not breach Article II:1(b) and Article I:1 of 
the GATT 1994.  
 
11. Assuming, quod non , the measures at issue in this dispute are safeguard measures within the 
meaning of Article 1 of the Agreement on Safeguards, any breach  of Article II:1(b) and Article  I:1 
of the GATT 1994 would have to be consequential to a breach of  the conditions and disciplines set 
out under Article XIX of the GATT 1994 and the Agreement on Safeguards.  
 
12. To put it differently, if a measure is a safeguard measure, it is clear for everybody that the 
Member imposing it would have to comply with Article 9.1 of the Agreement on Safeguards, and 
thus would have to exclude developing countries meeting the conditions set out in Article 9.1 from 
the scope of the measure. The simple exclusion of developing countries meeting those criteria could 
thus not reasonably be considered as a breach of Article I:1 of the GATT 1994. Unless the challenge 
is really directed against e.g. the wrongful application of Article 9.1 (or some other provision) of the 
Agreement on Safeguards, with a consequential bre ach of Arti cle I:1 of the GATT  1994.  
 
13. The EU notes that Japan does not frame its claims under Article II:1(b) and Article I:1 of the 
GATT 1994 as purely consequential to a breach of the Agreement on Safeguards. At the same time 
it is not entirely clear to the EU  whether Japan wishes to challenge the specific duty at issue as a 
stand -alone measure (i.e. regardless of whether or not it can be considered as a safeguard measure 
within the meaning of Article 1 of the Agreement on Safeguards).  
 
14. The EU would limit i tself to recalling the standing case -law of the Appellate Body that "a party 's 
submissions during panel proceedings cannot cure a defect in a panel request "1, a principle which is 
"paramount in the assessment of a panel 's jurisdiction ". The Appellate Body has stressed that 
"although subsequent events in panel proceedings, including submissions by a party, may be of 
some assistance in confirming the meaning of the words used in the panel request, those events 
cannot have the effect of curing the failings of a deficient panel request " and that "in every dispute, 
the panel 's terms of reference must be objectively determined on the basis of the panel request as 
it existed at the time of filing ".2 
 
                                                
1 Appellate Body Report,  EC and certain member States – Large Civil Aircraft , para.  642, quoting 
Appellate Body Reports, EC – Bananas III , para. 143 and US – Carbon Steel , para.  127. 
2 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para.  642. WT/DS518/R/Add.1  
 
- 70 - 
 
  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE  
SEPARATE CUSTOMS TER RITORY OF TAIWAN,  
PENGHU, KINMEN AND M ATSU  
I. INTRODUCTION  
 
1. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu offers comments on 
the following issues:  
 
(a) characterization of the measure at issue;  
 
(b) whether country -specific analysis was required to demonstrate a logical connection 
between unforeseen developments and increased imports; and  
 
(c) the logical connection between obligations incurred and increased imports.  
 
II. CHARACTERIZATION OF THE MEASURE AT ISSUE  
 
2. Australia and the European Union consider that a measure does not constitute a safeguard 
measure within the meaning of Article XIX:1(a) of the GATT 1994 and the Agreement on Safeguards 
if it does not suspend a GATT obligation or withd raw or modify a concession. We consider this 
approach to be flawed, as it undermines the procedural and substantive obligations of the Agreement 
on Safeguards, and has no basis in the text of Article XIX:1(a) of the GATT 1994 and the Agreement 
on Safeguard s. 
 
3. We believe that the ordinary meaning of the term "safeguard measure " encompasses all 
measures taken to safeguard the domestic industry against serious injury arising from increased 
imports, without any limitation to particular types of measures. In this dispute, because India 's 
safeguard measure was taken to safeguard its domestic industry against serious injury arising from 
increased imports, it constitutes a safeguard measure within the meaning of Article XIX:1(a) and 
the Agreement on Safeguards.  
 
4. However, even if one were to accept the argument that a measure must "suspend " a 
concession or obligation in order to constitute a safeguard measure, that condition would be satisfied 
in this case. The measure at issue was imposed on a product for whic h a tariff binding exists (40%). 
Therefore, the measure at issue could result in a violation of the prohibition on "other duties and 
charges " (ODC) under Article II:1(b), second sentence of the GATT 1994. Here, because Indian law 
appears to treat safeguard  duties as an exceptional measure distinct from ordinary import duties, 
we believe that the measure at issue constitutes an ODC. Since India has not inscribed this type of 
ODC in its WTO Schedule of Concessions1, the safeguard measure gives rise to a suspe nsion of 
India's obligation under Article II:1(b), second sentence.  
 
III. WHETHER COUNTRY -SPEC IFIC ANALYSIS WAS RE QUIRED TO DEMONSTRAT E A 
LOGICAL CONNECTION B ETWEEN UNFORESEEN DE VELOPMENTS AND INCRE ASED 
IMPORTS  
 
5. Regarding demonstrating a logical connect ion between unforeseen developments and 
increased imports , Japan argues that, "for those developments which are specific to certain exporting 
countries, the Indian authority should have made an analysis on a per country  basis".2 India argues 
that such analysis is impossible as it is a confluence of circumstances and not a single event which 
constitutes unforeseen developments.  
 
6. We consider that India 's reliance on a confluence of circumstances does not detract from its 
ability  to analyze trade flows and price and demand developments occurring in any specific country. 
                                                
1 Schedu le of Concessions XII – India, annexed to the Marrakesh Protocol.  
2 Japan 's first written submission, para. 124. (emphasis original)  WT/DS518/R/Add.1  
 
- 71 - 
 
  Moreover, we consider it incumbent on the Indian authority to conduct its analysis on a per country 
basis because the Indian authority relied on shifts of imports from individual import markets to India. 
Because the Indian authority did not perform analysis on a per country basis, we consider that the 
Indian authority failed to sufficiently demonstrate a logical connection between the alleged 
unforeseen developments  and increased imports.  
 
IV. LOGICAL CONNECTION B ETWEEN OBLIGATIONS I NCURRED AND INCREASE D 
IMPORTS  
 
7. India argues that Article XIX:1(a) of the GATT 1994 requires only that an investigating 
authority show that the importing Member has incurred tariff conc essions for the relevant product.3 
 
8. We consider that the phrase "as a result of … the effect of the obligations incurred by a 
contracting party under this Agreement " in Article XIX:1(a) of the GATT 1994 requires a showing of 
three elements: (1) an oblig ation incurred under the GATT 1994; (2) the effect of that obligation; 
and (3) how such effect resulted in increased imports causing or threatening to cause serious injury.  
 
9. In this dispute, the Indian authority only explains how India 's applied rates m ight have the 
effect of increased imports. This is not an explanation of how India 's bound rates —the relevant 
GATT  obligation here —have the effect of increased imports. Thus, the Indian authority failed to make 
the relevant inquiry, and has not met the req uirements of Article XIX:1(a) of the GATT 1994 and 
Article 3.1 of the Agreement on Safeguards.  
                                                
3 India's first written submission, paras. 114 -118. WT/DS518/R/Add.1  
 
- 72 - 
 
  ANNEX C -4 
INTEGRATED EXECUT IVE SUMMARY OF  
THE ARGUMENTS OF UKR AINE 
I. Introduction  
 
1. Ukraine 's submissions in this dispute have focused on several points with respect to some of 
the India 's methodologies used in the investigation that led to the imposition of safeguard measures 
on imports of certain steel products.  
 
II. Methodology used for imports trend examinations  
 
2. First of all, Ukrain e would like to address the issue of Indian authority 's approach of showing 
the increase in imports based on an annualized forecast because proper analysis of the import 
development is the key issue to justify imposition of safeguard measures. Indeed, Arti cle 2.1 of the 
Agreement on Safeguards does not stipulate any kind of annualization methodology or usage of 
forecasted data for the import development. In fact, the language of Article 2.1 of the Agreement 
on Safeguards "requires that the increase in impor ts must have been recent enough, sudden enough, 
sharp enough, and significant enough, both quantitatively and qualitatively, to cause or threaten to 
cause 'serious injury '".1 Usage of such wording as "product is being imported " and "increase in 
imports mus t have been " indicates that the investigation requires examination of factual imports 
and not forecasted trends.  
 
3. Therefore, Ukraine considers that the conclusions made on distorted evidence and imposition 
of safeguard duties basing on forecasted data o n imports would be inconsistent with Article 2.1 of 
the Agreement on Safeguards.  
 
4. Ukraine agrees with Japan 's point that quadrupling figures relating to first quarter of 2015 -
2016 in order to obtain data for 2015 -2016 (Annualized) would be inconsistent with requirements 
that the investigating authority must rely on "objective data " pursuant to Article 4.2(a)of the 
Agreement on Safeguards. Indeed, such a simple assumption that indicators of imports and industry 
operation in each of three other quarters of  2015-2016 would be the same as in the first  quarter of 
this period is rather groundless. The investigating authority did not provide any explanation of why 
such an assumption was reasonable.  
 
5. Ukraine submits that usage of annualization methodology for analysis of import development 
and domestic industry position would result in lack of objectivity in the safeguard investigation and 
therefore would be inconsistent with Articles 2.1and 4.2 of the Agreement on Safeguards.  
 
III. Evidence of serious injury  
 
6. Ukraine notes that the existence of serious injury in the safeguard investigation should be 
demonstrated properly within the meaning of Article 4 of the Agreement on Safeguards. According 
to Article 4.1 (a) of the Agreement on Safeguards, under 'serious  injury ' shall be understood to mean 
a significant overall impairment in the position of the domestic industry. In addition, the term 'serious 
injury ' means a high standard of injury. However, as long as certain key industry indicators – 
including domestic  sales, production of domestic industry, capacity utilization, employment and 
productivity – showed positive trends or as mentioned in the Indian Notification 'remained same 
over the injury period '2 the position of the domestic industry should not be quali fied as being 
seriously injured.  
 
7. Therefore, in Ukraine 's view, conclusions based on forecasted data with lack of objectivity that 
imports have caused serious injury to the domestic industry do not constitute a sufficient justification 
for the applicat ion of safeguard measures pursuant to the Agreement on Safeguards and Article XIX 
of the GATT 1994.  
                                                
1 Appellate Body Report, Argentina – Footwear (EC) , para. 131.  
2 G/SG/N/8/IND/28 -G/SG/N/10/IND/19 -G/SG/N/11/IND/14/Suppl.2 . WT/DS518/R/Add.1  
 
- 73 - 
 
  ANNEX C -5 
INTEGRATED EXECUT IVE SUMMARY OF THE  
ARGUMENTS OF THE UNI TED STATES  
EXECUTIVE SUMMARY OF U.S.  ANSWERS TO THE PANEL'S QUESTIONS TO THIRD PARTIES  
 
I. QUESTION REGARDING ARTICLE XIX:1  OF THE GATT  1994   
 
1. The expression "the effect of the obligations incurred by a contracting party under this 
Agreement, including tariff concessions " in Article XIX:1 of the GATT 1994 refe rs not only to a tariff 
concession, but also to any obligation a Member assumed at the time the WTO was established or 
at the Member 's accession . The text of Article XIX:1 refers to "obligations incurred by a contracting 
party " and, as an example of this, "include[es] tariff concessions " expressly . It would be contrary to 
the text of the provision to limit the type of obligations that may result in the increase of imports to 
those that are only a result of tariff concessions.  
 
2. Besides tariff obligations,  any WTO obligation affecting importation may potentially be a 
relevant obligation if it results in an unforeseen increase of imports that causes serious injury to a 
Member 's domestic producers . Accordingly, each safeguard measure should be evaluated on a case-
by-case basis while taking into consideration the relevant facts and context in which a Member has 
decided to take action to prevent or remedy an injury .  
 
II. QUESTION REGARDING THE NATURE OF DUTIES RESULTING FROM APPLICATION OF  A 
SAFEGUARD  MEASURE  
 
3. GATT 1994 Article II:1 provides that an imported product shall be accorded treatment no less 
favourable than that set out in a Member 's Schedule and further contemplates that an imported 
product shall be subject to scheduled ordinary customs duties and  (as set out in the Understanding 
on Article II) designated other duties or charges . A duty pursuant to a safeguard measure (or 
"emergency action ") would not, in principle, be an ordinary customs duty – for example, set out in 
the customs tariff of a Membe r normally corresponding to the Harmonized  System.  
 
4. Duties imposed pursuant to a safeguard measure could, in principle, be considered an "other 
duty or charge " under the second sentence of Article II:1(b) . Should those duties be applied 
consistent with the requirements of Article XIX (and the Agreement on Safeguards), a Member would 
be in conformity with its WTO obligations (including those under GATT 1994 Article II) . This is explicit 
in the text of Article XIX:(1)(a) of the GATT 1994, which provides th at a Member "shall be free " to 
suspend an obligation, in whole or in part, or modify a concession – "including tariff concessions ". 
That is, Article II would not prevent the application of a WTO -consistent safeguard measure because 
the Member "shall be fre e" to apply that measure.  
 
III. QUESTION REGARDING THE DEFINITION OF SAFEGUARD MEASURE  
 
5. The United States agrees, in part, with the argument Chinese Taipei raises with respect to the 
relevance of the Appellate Body 's reasoning in US – 1916 Act . The Unit ed States acknowledges that 
the Appellate Body found, for purposes of the Antidumping Agreement, that the phrase "anti-
dumping measure " is not immediately clear and that, without an express definition, the phrase could 
apply to all measures taken to addres s imported products sold for less than their fair market value . 
From this, Chinese Taipei extrapolates that a safeguard measure, which also does not have an 
express definition in the Agreement on Safeguards, is any measure taken to safeguard a domestic 
industry from increased imports.  
 
6. However, Chinese Taipei does not recognize that, to qualify as a safeguard measure, the 
measure at issue must be to remedy or protect domestic producers from serious injury or a threat 
of serious injury and that the actio n a Member takes must be related to the suspension, withdrawal, 
or modification of a GATT obligation or concession .  
 WT/DS518/R/Add.1  
 
- 74 - 
 
  IV. QUESTION WHETHER APPLICATION OF A MEASURE BELOW A BOUND RATE CAN BE CONSIDERED A 
SAFEGUARD MEASURE  
 
7. A Member has, in effect, two bo und rates in relation to the charge it may impose on an 
imported product . The first, under the first sentence of GATT 1994 Article II:1(b), is in relation to 
the rate it may impose as an "ordinary customs duty ". The second, under the second sentence of 
that provision, is in relation to the rate it may impose as an "other duty or charge ". The bound rate 
for an ordinary customs duty is as set out in a Member 's Schedule . Under the Understanding on 
Article II, a Member was required to specify in its schedule th e nature and level of any "other duty 
or charge " it could apply on an imported product . In the absence of any such scheduled "other duty 
or charge ", a Member would not be able to apply a duty or charge on importation other than an 
ordinary customs duty .   
 
8. If there is a duty or charge resulting from application of a safeguard measure, the issue is 
whether this duty or charge falls under the first or second sentence of GATT 1994 Article II:1(b) . In 
principle, it would not seem that "emergency action " and application of a duty or charge while 
suspending, withdrawing, or modifying a concession (Article XIX:1) would normally result in an 
"ordinary customs duty ". Therefore, that a duty or charge resulting from a safeguard measure falls 
within a Member 's bound rate for an ordinary customs duty would not seem relevant . Instead, the 
proper analysis would seem to be whether the duty or charge resulting from a safeguard measure 
falls within a Member 's bound rate for an "other duty or charge ".  
 
V. QUESTION REGARDING  A PERIOD OF INVESTIGATION UNDER THREE YEARS 
 
9. Most Members use at least three years as a baseline period of investigation . The most 
important aspect, however, is that the time period is unbiased and fair, and especially that it is not 
manipulated or oth erwise selected to achieve a particular outcome during the investigation . 
Accordingly, the United States believes that a period of investigation under three years should not 
always be considered per se inadequate, although a reasonable explanation of that choice may be 
warranted .  
 
VI. QUESTION REGARDING THE POSSIBILITY OF FINDING BOTH SERIOUS INJURY AND THREAT OF SERIOUS 
INJURY FOR THE SAME SAFEGUARD INVESTIGATION  
 
10. Under the Agreement on Safeguards, it is possible to have findings of both serious injur y and 
threat of serious injury for the same safeguard investigation . Under Article 2.1, a Member may 
impose a measure if imports cause or threaten to cause serious injury, and the text does not exclude 
that both situations may arise .  
 
11. The Appellate Bo dy addressed this issue in the context of whether discrete findings were 
necessary under the Agreement on Safeguards . In US – Line Pipe , the Panel found that the Member 
imposing the measure had breached the Agreement on Safeguards because the Member had 
determined that increased imports were the substantial cause of serious injury or the threat of 
serious injury and, in the Panel 's view, the Agreement on Safeguards required a discrete 
determination as to one or the other .  
 
12. On appeal, the Appellate Body  reviewed the Panel 's analysis . As an initial matter, the Appellate 
Body agreed with the Panel that Article 2.1 of the Agreement on Safeguards necessitates the 
inclusion of "findings " or "reasoned conclusions " in a published report from the competent 
autho rities. The Appellate Body, however, questioned the kind of findings that must appear in the 
published report.  
 
13. In particular, the Appellate Body examined the meaning of the term "or" in the phrase "cause 
or threaten to cause " serious injury . That is,  it examined whether the use of this term required 
discrete findings or allowed the possibility of finding one (serious injury), the other (threat of serious 
injury), or both . The Appellate Body focused on the context in which the term "or" is used . The 
Appellate Body determined that the phrase "or" did not necessarily mean "one or the other, but not 
both" and that the clause could mean "either one or the other, or both in combination " and, as such, 
it did not see that it matters, for purposes of imposing a  safeguard measure, whether the competent 
authority finds the one (serious injury), the other (threat of serious injury), or the one or the other 
(serious injury or the threat of serious injury) . On this basis, it found that the Member 's 
determination had established the right to apply a safeguard.  WT/DS518/R/Add.1  
 
- 75 - 
 
  VII. QUESTION REGARDING IMMEDIATE NOTIFICATION UNDER THE AGREEMENT ON SAFEGUARDS  
 
14. The term "immediately " as used in Article 12.1 suggests a certain level of urgency . At the 
same time, the use of this term wou ld not support a bright line test . Indeed, if the negotiators had 
intended to adopt a bright line test, they would have included that test in the text of the Agreement . 
Accordingly, each circumstance must be evaluated on a case -by-case basis . Appropriate 
considerations would include whether a Member subject to a safeguard received sufficient time to 
adequately defend its rights and support its position during and after the safeguard investigation .   
 
__________