WT/DS499/7  
 
19 September 2018  
(18-5795) Page: 1/5 
  Original: English  
 
RUSSIA – MEASURES AF FECTING THE IMPORTAT ION OF RAILWAY EQUIP MENT AND 
PARTS THEREOF  
 
NOTICE OF AN OTHER APPEAL BY THE RUSSIAN FEDERATION  
UNDER ARTICLE 16.4 AND ARTICLE 17.1 OF THE UNDERSTANDING ON RULES  
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),  AND  
UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW  
 
 
The following communication, dated 3 September  2018, from the Delegation of the Russian 
Federation , is being circulated to Members.  
 
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1. Pursuant to Article 16.4 and Article 17.1 of the DSU the Russian Federation hereby notifies 
the Dispute Settlement Body of its decision to appeal to the Appellate Body certain issues of law 
covered in the Panel Report and certain legal interpretations developed by the Panel in the dis pute 
Russia – Measures Affecting the Importation of Railway Equipment and Parts Thereof  (WT/DS499) 
("Panel Report"). Pursuant to Rule 23(1) of the Working Procedures for Appellate Review 
(WT/AB/WP/6, 16 August 2010) ("Working Procedures") the Russian Feder ation simultaneously files 
this Notice of Other Appeal with the Appellate Body Secretariat.  
2. For the reasons further elaborated in its submissions to the Appellate Body, the Russian 
Federation appeals and requests the Appellate Body to reverse or modify cer tain issues of law 
covered in the Panel Report and legal interpretations developed by the Panel in this dispute.  
3. Pursuant to Rule 23(2)(c)(iii) of the Working Procedures the present Notice of Other Appeal  
provides an indicative list of the paragraphs of th e Panel Report containing the alleged errors of law 
and legal interpretation, without prejudice to the ability of the Russian Federation to refer to other 
paragraphs of the Panel Report in the context of its appeal.  
I. Appeal of the Panel's error in interpret ing and applying Article 6.2 of the DSU 
in its preliminary ruling  
4. The Russian Federation seeks review by the Appellate Body of the Panel's interpretation and 
application of Article 6.2 of the DSU in its preliminary ruling. In  its examination of the 
Russian  Federation's claim on the preliminary ruling the Panel made several errors.  
5. First, the Panel erred in concluding that Ukraine's Panel Request presents the problem clearly 
under Article 6.2 of the DSU by properly linking the measures at issue with the lega l basis.  
6. Accordingly, the Russian Federation  requests that the Appellate Body : 
• find that the Panel erred in its legal analysis in paragraphs 7.40 -7.41;  
• reverse the Panel's findings in paragraphs 7.39 and 7.43.  
  WT/DS499/7  
 
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  7. Second, the Panel erred in finding that in respect of the third measure Ukraine 's Panel Request 
had identified a specific measure at issue, in particular:  
• the Panel erred by neglecting to determine the meaning of the third measure considered 
on its face;  
• the Panel failed to acknowledge that Ukraine 's written submissions confirm neither the 
words used for the description of the third measure in the Panel Request nor the Panel 's 
interpretation of the third measure.  
8. Accordingly, the Russian Federation  requests that the Appellate Body:  
• find that the Panel erred in its analysis in paragraphs 7.93, 7.97, 7.98 and in its inference 
in paragraph 7.29 of its Report;  
• reverse the Panel 's findings in paragraphs 7.99, 7.102 (sentences two and three), 7.103, 
and 7.104 of its Report;  
9. Third, the Panel erred in its  conclusion that CU Technical Regulation 001/2011 is identified in 
the Panel Request with the sufficient degree of precision to embody the third measure.  
10. Accordingly, the Russian Federation  requests that the Appellate Body:  
• reverse paragraphs 7.100 -7.104 a nd, correspondently, paragraph 7.829 (first sentence) 
of the Panel Report;  
• conclude that the third measure was not properly identified in the Panel Request to fall 
within the Panel's terms of reference.  
11. Based on the foregoing,  the Russian Federation reques ts that the Appellate Body  reverse the 
Panel 's conclusion in paragraph 8.1(a)(i) that the Russian Federation has failed to establish that the 
Panel Request is inconsistent with Article 6.2 of the DSU.  
12. As a consequence, the Russian Federation also requests that the Appellate Body reverse the 
Panel's findings and conclusions on Ukraine's claims under Article I :1 of the GATT 1994 and 
Article  III:4 of the GATT 1994 (Sections 7.5.3 – 7.5.3.4 and 7.5.4 – 7.5.4.4, and corresponding 
paragraphs 8.1(d)(iv) and 8.1(d) (v) of the Panel Report).  
II. Appeal of the Panel's error in interpreting and applying Articles 6.2, 7.1, and 
11 of the DSU in the Panel 's findings that Ukraine's third measure was within 
the Panel's terms of reference  
13. This part of the Russian Federation's app eal concerns several findings made by the Panel in 
the course of its analysis of the third measure, described by Ukraine in its first written submission 
("FWS"), in response to the Russian Federation's claim that this measure is not within the Panel's 
terms of reference. The Panel erred in its conclusion and related findings that Ukraine's third measure 
as it was described in Ukraine's FWS, determined and further modified by the Panel was within the 
Panel's terms of reference, in particular:  
14. First, the Pan el committed legal errors under Articles 6.2, 7.1 of the DSU in making the 
following findings related to its analysis of whether the measure described by Ukraine in its FWS is 
within the Panel's terms of reference:  
• any challenge to the alleged non -recognit ion requirement is within the Panel's terms of 
reference;  
• Ukraine's third measure concerns an alleged requirement that Russia's authorities consider 
to flow from CU Technical Regulation 001/2011; that under that alleged non -recognition 
requirement Russia' s authorities must not recognize  certificates issued to Ukrainian 
producers in other CU countries unless certain conditions are met; one such condition is 
that for certificates issued in another CU country to be recognized, the products covered WT/DS499/7  
 
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  by these ce rtificates must have been produced in a CU country; the third narrative 
paragraph specifically identifies this production condition;  
• the description of the measure in Ukraine's FWS is only "somewhat" different in 
comparison with the third measure in the P anel Report;  
• Ukraine's reference to the Russian Federation's "decision" was not sufficient, in and of 
itself, for finding that the measure challenged by Ukraine is outside the terms of reference.  
15. Accordingly, the Russian Federation requests that the Appel late Body:  
• conclude that the measure described by Ukraine in its FWS as "the [alleged] decision of 
the Russian Federation not to accept in its territory the validity of the conformity 
assessment certificates issued to Ukrainian producers in other CU countr ies" is not within 
the Panel's terms of reference;  
• reverse the Panel's findings in paragraph 7.823;  
• modify the Panel's finding in the second sentence of paragraph 7.827 by deleting the term 
"somewhat";  
• reverse the Panel's finding in the fourth sentence of paragraph 7.828 that Ukraine's 
reference "to Russia's 'decision' not to recognize is not sufficient justification, in and of 
itself, for finding that the measure challenged by Ukraine is outside the terms of reference 
and not examining the evidence submitt ed by Ukraine in support of the third measure".  
16. As a consequence of the finding that the third measure  described by Ukraine in its FWS was 
not within the Panel's terms of reference the Russian Federation requests that the Appellate Body 
reverse the Panel's  findings on the existence of the measure at issue in Section 7.5.1.2 and 
particularly in paragraph 7.861 of the Panel Report.  
17. Second, with respect to the Panel's determination of the third measure and further 
modification of its descriptions, the Panel co mmitted legal errors under Articles 6.2, 7.1, and 11 of 
the DSU in making the following determination and findings:   
• the determination that the third measure should be referred to as "the alleged non -
recognition requirement flowing from CU Technical Regula tion 001/2011", "a general non -
recognition requirement, which Russia's Ministry of Transport and its Federal Agency for 
Railway Transport considered to flow from CU Technical Regulation 001/2011 as they 
interpreted it", "the general non -recognition require ment (as applied by the identified by 
the identified Russian authorities in situations where a product certified in another CU 
country had not been produced in a CU country)" ; 
• the finding that Ukraine has identified the third measure as "the alleged non -recognition 
requirement flowing from CU Technical Regulation 001/2011";  
• the finding that "the non -recognition requirement is properly before the Panel".  
18. Accordingly, the Russian Federation requests that the Appellate Body:   
• reverse the Panel's determinatio n in the first sentence of paragraph 7.828 that the third 
measure should be referred to as "the alleged non -recognition requirement flowing from 
CU Technical Regulation 001/2011" as well as findings in paragraphs 7.850, 7.853, 7.854, 
7.861, and 7.881 that the third measures is: "a general non -recognition requirement, 
which Russia's Ministry of Transport and its Federal Agency for Railway Transport 
considered to flow from CU Technical Regulation 001/2011 as they interpreted it" and "the 
general non -recogniti on requirement (as applied by the identified by the identified Russian 
authorities in situations where a product certified in another CU country had not been 
produced in a CU country)";  WT/DS499/7  
 
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  • reverse the Panel's finding in the third sentence of paragraph 7.828 that Ukraine has 
identified the third measure as "the alleged non -recognition requirement flowing from CU 
Technical Regulation 001/2011";  
• reverse the Panel's conclusion in paragraph 8.1( d)(i) that "the non -recognition 
requirement is properly before the Panel".  
19. As a consequence of the finding that the measure described by Ukraine in its FWS or "the non -
recognition requirement" was not within the Panel's terms of reference (under the first or the second 
points in this part of the appeal), the Russian Federation also requests the Appellate Body to reverse 
the Panel's findings and conclusions on the existence of the measure at issue (Sections 7.5.1.2 – 
7.5.1.2.1 of the Panel Report) on Ukraine 's claims under Article I :1 of the GATT 1994 and Article  III:4 
of the GATT 1994 (Sections 7.5.3 and 7.5.4 and corresponding paragraphs 8.1(d)(iv) and 8.1(d)(v) 
of the Panel Report).  
III. Appeal of the Panel's error in interpreting and applying Article 11 of the  DSU to 
the circumstances of the dispute  
20. First, the Panel erred under Article 11 of the DSU since it continued making findings with 
respect to the alleged registration condition and taking these findings into account after it found that 
this requirement w as not within its terms of reference.  
21. Second, the Panel erred under Article 11 of the DSU since it relieved Ukraine from the 
necessity of establishing of a prima facie case  in respect to the existence of the third measure as a 
single measure capable of bei ng challenged under the DSU as identified in the Panel Request.  
22. Accordingly, the Russian Federation requests that the Appellate Body reverse the Panel 's 
findings in respect of the third measure as contained in paragraphs 7.847, 7.849, 7.850 ( the 
third and the fourth sentences), 7.853, 7.854, 7.861, 7.897, 7.899, 7.917, 7.926 of its Report.  
23. As a consequence, the Russian Federation also requests that the Appellate Body reverse the 
Panel's findings and conclusions on Ukraine's claims under Article I :1 of the G ATT 1994 and 
Article  III:4 of the GATT 1994 (Sections 7.5.3 – 7.5.3.4 and 7.5.4 – 7.5.4.4, and corresponding 
paragraphs 8.1(d)(iv) and 8.1(d)(v) of the Panel Report).  
24. Third, the Panel erred in its finding that the third measure as determined by the Panel e xists 
by finding that the "general" non -recognition requirement flo ws from CU Technical 
Regulation  001/2011, and in particular:  
• the Panel erred in the assessment of the third measure as determined by the Panel by not 
examining the text of CU Technical Reg ulation 001/2011;  
• the Panel erred by neglecting to find that the assess ment of CU Technical 
Regulation  001/2011 reveals the non -existence of the third measure as determined by the 
Panel.  
25. As a result, the Russian Federation requests that the Appellate Body:  
• reverse the Panel's findings in paragraphs 7.823 (the second and the third sentences), 
7.846, 7.850 (the third and the fourth sentences), 7.851 to the extent that "[w]hether or 
not the Ministry and the Federal Agency had the power to interpret CU Technica l Regulation 
001/2011 and interpreted it correctly is not relevant to [Panel] analysis"; 7.852, 7.853, 
and 7.854;  
• reverse the Panel's finding in paragraph 7.861 of the Panel Report that "the third measure 
has been demonstrated to exist" and the finding in the same paragraph that "the evidence 
on the record supports the conclusion that on the date of establishment of this Panel 
Russia's Ministry of Transport and its Federal Agency for Railway Transport applied a 
general non -recognition requirement, which the se authori ties considered to flow from 
CU Technical Regulation 001/2011 as they interpreted it" . WT/DS499/7  
 
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  26. Finally, should the Appellate Body find that the Panel erred in its conclusions regarding the 
existence of the third measure, the Russian Federation requests t o reverse the Panel's findings and 
conclusions on Ukraine's claims under Article I:1 of the GATT 199 4 and Article III:4 of the GATT  1994 
(Sections 7.5.3 – 7.5.3.4 and 7.5.4 – 7.5.4.4, and corresponding paragraphs 8.1(d)(iv) and 
8.1(d)(v) of the Panel Repor t). 
 
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