WT/DS490/AB/R/Add.1  
WT/DS496/AB/R/Add.1  
 
15 August 2018  
(18-5154) Page: 1/28 
  Original: English  
 
  
INDONESIA – SAFEGUARD ON CERTAIN  IRON OR STEEL PRODUC TS  
AB-2017-6 
Report of the Appellate Body  
Addendum  
This Addendum  contains Annexes A to C to the Report of the Appellate Body  circulated as  
document  WT/DS490/AB/R, WT/DS496/AB/R . 
 
The Notice s of Appeal and Other Appeal s and the executive summaries of written submissions 
contained in this Addendum are attached as they were received from the participants and 
third participants. Th e content has not been revised or edited by the Appellate Body, except that 
paragraph and footnote numbers that did not start at one in the original may have been 
re-numbered to do so, and the text may have been formatted in order to adhere to WTO style. T he 
executive summaries do not serve as substitutes for the submission s of the participants and 
third participants in the Appellate Body's examination of the appeal.  
 
 
_______________  
 
 WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
NOTICE S OF APPEAL  AND OTHER APPEAL S 
Contents  Page  
Annex  A-1 Indonesia 's Notice of Appeal  4 
Annex  A-2 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu's Notice 
of Other Appeal  6 
Annex  A-3 Viet Nam's Notice of Other Appeal  7 
ANNEX B  
ARGUMENTS OF THE PARTICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Indonesia 's appellant's submission  10 
Annex  B-2 Executive summary of the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu's other appellant's submission  15 
Annex  B-3 Executive summary of Viet Nam' s other appellant 's submission  16 
Annex  B-4 Executive summary of Viet Nam 's appellee's submission  20 
Annex  B-5 Executive summary of the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu's appellee's submission  22 
Annex  B-6 Executive summary of Indonesia's appellee's submission  23 
ANNEX  C 
ARGUMENTS OF THE THI RD PA RTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Australia 's third participant's submission  26 
Annex  C-2 Executive summary of the European Union 's third participant's submission  27 
Annex  C-3 Executive summary of Japan 's third participant's submission  28 
 
 
 WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX  A 
NOTICE S OF APPEAL  AND OTHER APPEALS  
 
Contents  Page  
Annex  A-1 Indonesia's Notice of Appeal  4 
Annex  A-2 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu's Notice 
of Other Appeal  6 
Annex  A-3 Viet Nam's Notice of Other Appeal  7 
 WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX  A-1 
INDONESIA 'S NOTICE OF APPEAL* 
Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review, 
Indonesia hereby notifies the Dispute Settlement Body of its decision to appeal to the Appellate 
Body cer tain issues of law and legal interpretation covered in the Panel Report entitled 
Indonesia  — Safeguard on Certain Iron or Steel Products  (WT/DS490/R, WT/DS496/R), which was 
circulated on 18 August 2017 (the "Panel Report"). Pursuant to Rules 20(1) and 21(1 ) of the 
Working Procedures for Appellate Review, Indonesia is simultaneously filing this Notice of Appeal 
with the Appellate Body Secretariat.  
 
For the reasons to be further elaborated in its submission to the Appellate Body, Indonesia 
appeals, and reque sts the Appellate Body to modify or reverse legal interpretations leading to the 
legal findings and conclusions of the Panel, with respect to the following errors contained in the 
Panel Report:1 
 
1  THE PANEL ERRED IN D ETERMINING THAT REGU LATION NO. 137.1/PMK .011/2014 IS 
INCONSISTENT WITH AR TICLE I:1 OF THE GAT T 1994 BECAUSE IT IS  NOT A SAFEGUARD 
MEASURE  
Indonesia contends that the Panel erred in finding that suspension of MFN obligation couldn't be 
the basis of safeguard imposition since it is not necessary to remedy or prevent serious injury to 
the domestic producers or due to the existence of the General Interpretative Note to Annex 1A of 
the WTO Agreement. This finding is in contradiction with an adopted panel report Dominican 
Republic – Safeguard Measures .2 In addition, this issue is not under the Panel's term of reference 
and during the course of panel proceeding no party to the dispute has ever challenged that 
Regulation No. 137.1/PMK.011/2014 is not a safeguard measure.3  
 
Since Regulation No. 137.1/PMK .011/2014 is a safeguard measure, the Panel erred in finding that 
Regulation No. 137.1/PMK.011/2014 is inconsistent with Article I:1 of the GATT 1994. In addition, 
the Panel also erred in concluding that the complainants also make the same claim on the bas is of 
the same arguments against the specific duty as a stand -alone measure. Indonesia requests the 
Appellate Body to reverse the Panel's conclusions and the Panel's legal interpretations contained in 
paragraphs 7.11, 7.31, 7.38, 7.40, 7.41, 7.43 and 7.44.  In addition, Indonesia requests the 
Appellate Body to reverse the Panel's findings in paragraph 8.1 of its Report.  
 
2  THE PANEL ERRED TO M AKE A FINDING THAT I S OUTSIDE ITS TERM O F REFERENCE  
Indonesia submits that the panel erred in making findings that is outside its term of reference 
because of two reasons. First, the Panel has made a finding relating to Article 1 of the Agreement 
on Safeguards and Article XIX:1(a) last sentence relating to the definition of a safeguard measure 
which was not included in its term of reference nor has ever been raised by any party to the 
dispute. Second, the Panel has erred in making a finding of the consistency of 
Regulation  137.1/PMK.011/2014 as a stand -alone  measure (not as a safeguard measure) which is 
outside the measure at issue in the Panel's request. In the Panel request, complainants have 
                                                
* This document, dated 28 September 2017, was circulated to Members as document WT/DS490/5, 
WT/DS496/6.  
 
1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review, this Notice of Appeal 
includes an indicative list of the paragraphs of the Panel Report contai ning the alleged errors, without prejudice 
to Indonesia's right to refer to other paragraphs of the Panel Report in the context of its appeal.  
2 Panel Report, para. 7.30.  
3 Panel Report, para. 7.10.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  explicitly identified the measure at issue as "the specific duty imposed as a safeguard measure "4 
and a party's subm ission during panel proceedings cannot cure a defect in a panel request.5  
 
Based on the foregoing, Indonesia is of the view that the Panel has acted beyond its term of 
reference which is inconsistent with Article 6.2 and Article 7 of the DSU because (1) t he Panel 
makes a finding under Article 1 of the Agreement on Safeguards or the last sentence of 
Article  XIX:1(a) of the GATT 1994 when there is no such claim in the panel request; (2) the Panel 
erred in making a finding of the inconsistency of Article I:1 of the GATT 1994 based on a 
stand -alone measure (not as a safeguard measure) which is not identified as such by the 
complainants in the Panel request. Therefore, Indonesia requests the Appellate Body to reverse 
the Panel's conclusions and the Panel's legal  interpretations contained in paragraphs 7.10, 7.40, 
7.42-7.44 and 8.1.  
 
3  THE PANEL FAILED TO MAKE AN OBJECTIVE AS SESSMENT UNDER ARTIC LE 11 OF THE 
DSU WITH RESPECT TO FINDING REGULATION 1 37.1/PMK.011/2014 IS  NOT A 
SAFEGUARDS MEASURE  
Indonesia is of the view  that the Panel failed to conduct an objective assessment by self -initiating 
an examination of an undisputed issue beyond its term of reference which departed from a well-
established  case law. The Panel could not invoked Article 11 of the DSU to justify th is approach. 
Several case laws referred to by the Panel as legal basis have different circumstances and facts. All 
prior WTO cases involving safeguard measures never started an examination of claims of 
inconsistency under any provision of the Agreement on Safeguards by first examining whether the 
measure at issue is in fact a safeguard measure within the meaning of Article 1 of the Agreement 
on Safeguards if not disputed by any party. In fact the Panel has acknowledged that both parties 
have never challenge d and have concurring positions that Regulation 137.1/PMK.011/2014 is a 
safeguard measure.  
 
In addition, the Panel raised this issue whether the measure at issue is a safeguard measure 
within the meaning of Article 1 of the Agreement on Safeguards at the later stage of Panel 
proceeding which is on the second substantive meeting.6  
 
Therefore, Indonesia requests the Appellate Body to reverse the Panel's conclusions and the 
Panel's legal interpretations contained in paragraphs 7.10 and 7.40, 7.43 and 8.1.  
 
In addition, Indonesia notes that the above grounds of appeal are without prejudice to the 
arguments developed in Indonesia Appellant's Submission.  
 
 
 
                                                
4 Request for Establishment of a panel by Viet Nam, WT/DS496/3, 18 September 2015; and Request for 
Establishment of a panel by  the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu , 
WT/DS490/2, 21 August 2015 . 
5 Appellate Body Report, EC and Certain Member States – Large Civil Aircraft , para. 6 42. 
6 See Second Set of Panel Questions.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX A -2 
THE SEPARATE CUSTOMS  TERRITORY OF TAIWAN,  PENGHU, KINMEN  
AND MATSU 'S NOTICE OF OTHER APPE AL* 
Pursuant to Articles 16.4 and 17 of the DSU, the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu  hereb y notifies to the Dispute Settlement Body 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 dispute Indonesia – Safeguard on Certain Iron or Steel Products 
(WT/DS490; WT/DS496). Pursuant to Rule 23(1) of the Working Procedures for Appellate Review,  
the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  simultaneously files this 
Notice of Other Appeal, the Other Appellant Submission and th e executive summary thereof with 
the Appellate Body Secretariat.  
For the reasons to be further elaborated in its submissions to the Appellate Body, the 
Separate  Customs Territory of Taiwan, Penghu, Kinmen and Matsu  appeals, and requests that the 
Appellate Body reverse  the findings and conclusions of the Panel, with respect to the following 
errors contained in the Panel Report:1 
The Panel erred in the interpretation and application of Article 1 of the Agreement on Safeguards, 
Article XIX:1(a) of GATT 1994 an d other relevant provisions when finding that the specific duty 
imposed by Indonesia  is not a safeguard measure.  As a result,  the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu  requests that the Appellate  Body reverse  the Panel's findings 
in paragraphs 7. 40-41 and  8.1(a) of its report, which are based on its legally erroneous reasoning 
in paragraphs 7.10, 7.12 -17 and 7.32.  
Moreover, in the event that the Appellate Body finds that the specific duty imposed by Indonesia is 
a safeguard measure within the meaning of Article 1 of the Agreement on Safeguards, and 
reverses the Panel 's relevant findings and conclusions, the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu  requests that the Appellate Body complete the analysis of the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu 's claims under the Agreement on 
Safeguards and Articles XIX:1(a) and XIX:2 of GATT 1994.  
Lastly, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  submits that the 
Appellate Body should leave the Panel's finding contained in paragraphs 7.42 -7.44 of the Panel 
Report that Indonesia's specific duty is inconsistent with Indonesia's MFN -treatment obligation 
under Article I:1 of the GATT 1994 undisturbed.  
 
                                                
* This document, dated  3 October 2017, was circulated to Members as document  WT/DS490/6.  
 
1 Pursuant to Rule 23(2)(c)(ii)(C) of the Working Procedures for Appellate Review, this Notice of Other 
Appeal includes an in dicative list of the paragraphs of the Panel Report containing the alleged errors, without 
prejudice to the ability of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  to refer to 
other paragraphs of the Panel Report in the context of its other appeal.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX A -3 
VIET NAM'S  NOTICE OF OTHER APPE AL* 
Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU) and Rule 23(1) of the Working Proced ures for Appellate Review, 
Viet Nam hereby notifies the Dispute Settlement Body of its deci sion to appeal to the 
Appellate  Body certain issues of law and legal interpretation covered in the Panel Report entitled 
Indonesia — Safeguard on Certain Iron or Steel Products (WT/DS496/R), which was circulated on 
18 August 201 7 (the "Panel Report").  
 
Pursuant to Rules 23(1) and 23(3) of the Working Proced ures for Appellate Review, Viet  Nam is 
simultaneously filing this notice of other appeal and its other appellant's submission with the 
Appellate  Body Secretariat. Viet Nam is providing as well an executive summary of the other 
appellant's submission, in accordance with the Guidelines in Respect of Executive Summaries of 
Written Submissions in Appellate Proceedings (WT/AB/23).  
 
For the reasons fur ther elaborated in its other appellant's submission, Viet Nam appeals and 
requests the Appellate Body to reverse the findings and conclusions of the Panel with respect to 
the errors contained in the Panel Report described below.1 
 
I. THE PANEL ERRED IN F INDING THAT INDONESIA' S MEASURE IS NOT A 
"SAFEGUARD MEASURE"  
1. The Panel erred in its interpretation and application of Article XIX:1(a) of the GATT 1994, 
various provisions of the Agreement on Safeguards, including Articles 1 and 9.1, as well as the 
General Interpretative Note to Annex 1A of the WTO Agreement, when it found that Indonesia's 
measure is not a safeguard measure.2  
2. In particular, and without prejudice to the arguments developed in Viet Nam's other 
appellant's submission, the Panel erred in findin g that the suspension of the most -favoured -nation 
treatment (MFN) obligation under Article I:1 does not constitute a "suspension" of "the obligation" 
under Article XIX:1(a) of the GATT 1994. This error includes:  
 The Panel's erroneous finding that Indonesia 's suspension of the MFN obligation under 
Article 9.1 of the Agreement on Safeguards did not intend to prevent or remedy serious 
injury;3 and 
 The Panel's erroneous finding that the discriminatory application of a safeguard measure 
in accordance with Articl e 9.1 of the Agreement on Safeguards does not constitute a 
"suspension" of the MFN obligation, because the question of "suspension" does not arise 
due to the application of the General Interpretat ive Note to Annex 1A of the 
WTO Agreement.4 
II. REQUEST FOR FINDINGS, COMPLETION  OF THE ANALYSIS, AND  SUGGESTION FOR 
IMPLEMENTATION  
3. Viet Nam requests the Appellate Body to reverse the Panel 's finding contained in 
paragraphs  7.40-7.41, 8.1(a) and 8.2 of the Panel Report that Indonesia's specific duty applied 
pursua nt to Regulation  No. 137.1/PMK.011/2014 is not a safeguard measure, and to find instead 
that this measure is a safeguard measure within the meaning of Article XIX of the GATT 1994 and 
                                                
* This document, dated  3 October 2017, was circulated to Members as document  WT/DS496/7.  
 
1 Pursuant to Rule 23(2)(c)(ii)(C) of the Working Procedures for Appellate Review, this Notice of  Other 
Appeal includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, without 
prejudice to Viet Nam's right to refer to other paragraphs of the Panel Report in the context of its other appeal.  
2 Panel Report, paras. 7.40 -7.41, 8.1(a) and 8.2.  
3 Panel Report, paras. 7.25 -7.28. 
4 Panel Report, para. 7.29.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  the Agreement on Safeguards. Viet Nam further requests the Appellate Bod y to declare moot and 
of no legal effect the Panel's legal interpretations provided in paragraphs 7.12 -7.41 of the Panel 
Report, and paragraphs 2.9 -3.7 of Annex A -3 of the A ddendum to the Panel Report.  
4. Viet Nam requests the Appellate Body to complete the legal analysis and find that the 
measures at issue in this dispute are inconsistent with the following provisions:  
a. With respect to the specific duty imposed as a safeguard measure:  
 Article XIX:1(a) of the GATT 1994 and Article 3.1 of the Agreement on Safeg uards, 
because KPPI failed to explain in a reasoned and adequate manner the existence of 
both "unforeseen developments" and "the effect of the [GATT] obligations", as well 
as the logical connection of these elements with the increase in imports that 
allege dly caused serious injury;  
 Article XIX:1(a) of the GATT 1994, and Articles 2.1, 3.1, 4.2(a) and 4.2(c) of the 
Agreement on Safeguards, as KPPI failed to explain in a reasoned and adequate 
manner why the alleged increase in imports was "recent enough";  
 Article XIX:1(a) of the GATT 1994 and Articles 2.1, 3.1, 4.1(a), 4.1(b), 4.2(a) 
and 4.2(c) of the Agreement on Safeguards, as KPPI failed to provide a reasoned and 
adequate explanation of how the facts support its threat of serious injury 
determination, includ ing the evaluation of all relevant serious injury indicators ;  
 Article XIX:1(a) of the GATT 1994, and Articles 2.1, 3.1, 4.2(b), and 4.2(c) of the 
Agreement on Safeguards as KPPI failed to explain in a reasoned and adequate 
manner  a causal link, and to con duct a proper non -attribution analysis in accordance 
with those provisions;  
 Articles 2.1, 3.1, 4.2(a) and 4.2(b) of the Agreement on Safeguards, because 
Indonesia applied  the safeguard duty to a product that is different from the product 
that was investig ated, and thus failed to observe the requirement of parallelism ; 
b. With respect to Indonesia's notifications of the finding of threat of serious injury and of 
the decision to impose a safeguard measure:  
 Article 12.2 of the Agreement on Safeguards, because I ndonesia failed to provide "all 
pertinent information" in the relevant notification; and  
c. With respect to the obligation to provide an opportunity to hold consultations:  
 Article XIX:2 of the GATT 1994 and Article 12.3 of the Agreement on Safeguards, 
because  Indonesia failed to provide Members having a substantial interest as 
exporters with a meaningful opportunity to hold consultations prior to the imposition 
of a safeguard measure.  
5. In addition, Viet Nam requests the Appellate Body to leave the Panel's findi ng contained in 
paragraphs 7.42 -7.44 and 8.1(b) of the Panel Report that Indonesia's specific duty is inconsistent 
with Indonesia's MFN -treatment obligation under Article I:1 of the GATT 1994 undisturbed.  
6. Finally, Viet Nam requests the Appellate Body to ex ercise its discretion under Article 19.1 of 
the DSU and suggest that Indonesia bring its measure, and any extension of it, into conformity 
with its WTO obligations by immediately withdrawing the specific duty at issue.  
_______________  
 
 WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Indonesia 's appellant's submission  10 
Annex  B-2 Executive summary of the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu's other appellant's submission  15 
Annex  B-3 Executive summary of Viet Nam's other appellant' s submission  16 
Annex  B-4 Executive summary of Viet Nam's appellee's submission  20 
Annex  B-5 Executive summary of the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu's appellee's  submission  22 
Annex  B-6 Executive summary of Indonesia's appellee's submission  23 
 
 WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX  B-1 
EXECUTIVE SUMMARY OF  INDONESIA 'S APPELLANT'S SUBMISSI ON 
I. INTRODUCTION  
1. This appeal is very important for Indonesia and the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu and the Socialist Republic of Viet Nam (Viet Nam) (referred as "the co -
complainants") as well as for all WTO Members. The Appellate Body as t he highest adjudicatory 
body in the WTO dispute settlement is required to step in when there are two panel findings that 
are in contradiction with each other. In addition, this appeal also raised some important issues to 
clarify Panel's term of reference a s well as whether the Panel has made an objective assessment 
when making its finding.  
2. In this dispute, the co -complainants challenged Indonesia safeguard measure on certain flat -
rolled products of iron or non -alloy steel ("galvalume") to be inconsistent w ith Article XIX of the 
General Agreement on Tariffs and Trade 1994 (GATT 1994) and various provisions of the 
WTO Agreement on Safeguards as well as Article I:1 of the GATT 1994.1 However, it is an 
undisputed fact that no party, either Indonesia or the co -complainants have ever challenged 
whether Regulation No. 137.1/PMK.011/2014 is a safeguard measure or not. In other words, both 
parties to the dispute agreed that Regulation No. 137.1/PMK.011/2014 is a safeguard measure.  
3. Nevertheless, the Panel concluded that all co -complainants claims under the Agreement on 
Safeguards and the GATT 1994 with respect to the specific duty as a safeguard measure  were 
dismissed entirely since the Panel found that Regulation No. 137.1/PMK.011/2 014 does not  
constitute a safeguard measure within the meaning of Article  1 of the Agreement on Safeguards.2 
Thus, the Panel found that the application of the specific duty on imports of galvalume originating 
in all but the 120  countries listed in Regulati on No. 137.1/PMK.011/2014 is inconsistent  with 
Indonesia's obligation to afford MFN -treatment under Article  I:1 of the GATT 19943 and 
justification under Article 9.1 of the Agreement on Safeguards cannot be invoked since Regulation 
No. 137.1/PMK.011/2014 i s not a safeguard measure.4 
4. Indonesia contends that the Panel has made three errors of law. First, the Panel has made 
an error of law in arriving at its findings and conclusion that Indonesia safeguard measure is 
inconsistent with Article I:1 of the GATT 1 994 because Regulation No. 137.1/PMK.011/2014 is not 
considered as a safeguard measure within the meaning of Article 1 of the Agreement on 
Safeguards and Article XIX:1(a) of the GATT 1994. Second, the Panel erred by making findings 
that is beyond its term of reference. Third, the Panel has made another error of law by not doing 
"an objective assessment".5  
5. Due to the Panel's error of law, Indonesia requests the Appellate Body to reverse the Panel 
findings on Article 1 of the Agreement on Safeguards as well as Article I:1 of the GATT 1994.6 
However, Indonesia does not request the Appellate Body to complete the legal analysis since there 
is no ground for the Appellate Body to exercise such discretion.7 
                                                
1 Request for Establishment of a panel by Viet Nam, WT/DS496/3 (Viet Nam’s panel request), pp. 3 -4; 
and Request for Establishment of a panel by  The Separate Customs Territory of Taiwan, Penghu, Kinmen and 
Matsu, WT/DS490/2 ( The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu ’s panel request), 
pp. 3-4. 
2 Panel Report, paras. 8.1 and 8.2.  
3 Panel Report, para. 8.1.  
4 Panel Report, pa ras. 7.42 -7.44. 
5 Indonesia appellant’s submission, para. 7.  
6 Indonesia appellant’s submission, para. 8.  
7 Indonesia appellant’s submission, para. 9.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  II. THE PANEL ERRED IN D ETERMINING THAT REGU LATION NO. 137.1/PMK.011/2014 
IS INCONSISTENT WITH  ARTICLE I:1 OF THE G ATT 1994 BECAUSE IT IS NOT A 
SAFEGUARD MEASURE  
6. In this regard, the Panel made a finding that is not included in its term of reference. 
Moreover, during the course of panel proceeding no party to the dispute has ever challenged that 
Regulation No. 137.1/PMK.011/2014 is not a safeguard measure.8 The Panel also explicitly made 
this finding in contradiction with an adopted panel report Dominican Republic – Safeguard 
Measures.9 This is a very straight forw ard appeal to determine which GATT obligations that can be 
suspended to justify an imposition of a safeguard measure pursuant to the last sentence 
Article  XIX:1(a) of the GATT 1994.  
7. In determining that Regulation 137.1/PMK.011/2014 is not a safeguard measure, the Panel 
rely its finding based on the absence of any Indonesia 's WTO obligation that is being suspended by 
the application of Regulation 137.1/PMK.011/2014 that is necessary to prevent or remedy serious 
injury or threat thereof.10 Since Indonesia  has no binding tariff obligation with respect to 
galvalume inscribed into its Schedule of Concession for the pu rpose of Article II of the 
GATT  1994,11 the Panel deemed that the suspension of Article I:1 of the GATT cannot be invoked 
to justify a safeguard measure.12  
8. Indonesia is of the view that the Panel erred in its finding that 
Regulation  137.1/PMK.011/2014 is not a safeguard measure because the term "the obligation" in 
the last part of Article XIX:1(a) of the GATT 1994 shall not only limited to Article II or Article XI of 
the GATT 1994 but also to include other GATT obligations such as MFN obligation and the 
imposition of additional specific duty towards certain WTO Members is necessary to prevent or 
remedy serious injury or threat thereof.13 The objectiv e of targeting certain exporting countries 
(instead of all) is to impose the additional specific safeguard measure only to major exporting 
countries which contributed the most to the threat of serious injury suffered by Indonesian 
galvalume producers.  
9. Indonesia submits that the Panel has made an error in law by disagreeing with Indonesia 
and the co -complainants as well as the panel in Dominican Republic – Safeguard Measures  that the 
suspension of MFN obligation can the basis of a safeguard imposition becaus e the Panel considered 
it is not necessary to remedy or prevent serious injury amount to a "safeguard measure" within 
the meaning of Article 1 of the Agreement on Safeguards.14  
10. Indonesia also submits that the Panel consideration that the suspension of MFN obligation is 
not covered by Article XIX:1(a) of the GATT 1994 due to the existence of the 
General  Interpretative Note 1A of the WTO Agreement is incorrect. If the Panel's logic and 
reasoning were correct, Indonesia submits that it should also be applicabl e to the suspension of 
obligation under Article XI of the GATT 1994 whereby it has been well established that the 
suspension of GATT obligation under Article XI of the GATT would be a classic example of a 
suspension of GATT obligation under the last senten ce of Article XIX:1 (a) of the GATT 1994.The 
relationship between Article I:1 of the GATT 1994 and all the exceptions provided under the 
GATT  1994 including Article XIX of the GATT on Economic Emergency Exception should be 
interpreted harmoniously before i nvoking the last resort of General Interpretative Note 1A of the 
WTO Agreement.15 Indonesia agrees with the panel's consideration in Dominican Republic – 
Safeguard Measures  that it does not consider it correct to affirm that if Article XIX:1(a) of the 
GATT 1994 is interpreted to include the possibility of suspending the general most -favoured -nation 
treatment obligation in Article I:1 of the GATT 1994, this would necessarily lead to a conflict 
between GATT Article XIX:1(a) and the Agreement on Safeguards.16 
                                                
8 Panel Report, para. 7.10.  
9 Panel Report, para. 7.30.  
10 Panel Report, paras. 7.18 and 7.21 -7.32. 
11 Panel Report, para. 7.18.  
12 Panel Report, paras. 7.21 -7.32. 
13 Indonesia appellant’s submission, para. 30.  
14 Panel Report, para. 7.30.  
15 Indonesia appellant’s submission, para. 35  
16 Panel Report, Dominican Republic – Safeguard Measures , para. 7.72.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  11. Assuming arguendo that Regulation 137.1/PMK.011/2014 does not result in the suspension 
of any obligation under the GATT 1994, Indonesia is still of the view that it would still be 
safeguards within the meaning of Article XIX because the use of the words " shall be free"  in the 
last sentence of Article XIX:1(a) of the GATT 1994 implies that a Member has the discretion to or 
not to suspend a WTO concession or obligation when imposing a safeguard measure to remedy 
serious injury that does not suspend a concession  or obligation. In addition, 
Regulation  137.1/PMK.011/2014 was initiated, investigated, notified and imposed in accordance 
with Article XIX of the GATT 1994 and the Agreement on Safeguards. Recitals of Regulation 
137.1/PMK.11/2014 clearly stipulates that b asis of the imposition of the safeguard measure is to 
address the threat of serious injury caused by surge of imports.17 Indonesia believes that it has 
correctly characterized Regulation  137.1/PMK.011/2014 as a safeguard measure.  
12. Consequently, Indonesia submits that the Panel erred in finding that Indonesia has acted 
inconsistently with Article I:1 of the GATT 1994 based on the sole reason that 
Regulation  137.1/PMK.011/2014 is not a safeguard measure.  
13. The Panel also erred in conclu ding that the co -complainants also make the same claim on 
the basis of the same arguments against the specific duty as a stand -alone measure  and Indonesia 
has not contested the co -complainants' Article I:1 claim against the specific duty as a stand -alone 
measure .  
14. Based on the foregoing reasons Indonesia is of the view that the Panel has erred in finding 
Regulation 137.1/PMK.011/2014 is not a safeguard measure within the meaning of Article 1 of the 
Agreement on Safeguards as well as Article XIX:1(a) of the GATT 1994. Indonesia also submits 
that the Panel has erred in making finding of co -complainants ' MFN claim as a stand -alone 
measure.  Therefore, Indonesia requests the Appellate Body to reverse the Panel 's conclusions and 
the Panel 's legal interpretations c ontained in paragraphs 7.11, 7.31, 7.38, 7.40, 7.41, 7.43, 7.44 
and 8.1 of its Report.  
III. THE PANEL ERRED TO M AKE A FINDING THAT I S OUTSIDE ITS TERM O F 
REFERENCE  
15. Indonesia submits that the Panel has erred in making findings that is outside its term of 
reference because of two reasons. Indonesia submits that the Panel has erred. First, the Panel has 
made a finding relating to Article 1 of the Agreement on Safeguards and Article XIX:1(a) last 
sentence relating to the definition of a safeguard measure which was not included in its term of 
reference nor has ever been raised by any party to the dispute. Second, the Panel has erred in 
making a finding of the consistency of Regulation 137.1/PMK.011/2014 as a stand -alone measure 
(not as a safeguard measure) which is outside the measure at issue in the Panel 's request. In the 
Panel request, co -complainants have explicitly identified the measure at issue as "the specific duty 
imposed as a safeguard measure".18 Based on the well -established case law, the panel's 
jurisd iction or term of reference shall refer to the document of the co -complainants' panel request 
and the co -complainants have identified the measure at issue in the Panel Request as a safeguard 
measure. This has also been acknowledged by the Panel itself that  both parties agreed and never 
disputed that in fact Regulation 137.1/PMK.011/2014 is a safeguard measure within the meaning 
of Article 1 of the Agreement on Safeguards.19 
16. Nevertheless, although outside of its term of reference and never disputed by parties , the 
Panel felt obliged to assess whether or not Regulation 137.1/PMK.011/2014 is a safeguard 
measure within the meaning of Article 1 of the Agreement on Safeguards or the last sentence of 
Article XIX:1(a) of the GATT 1994 based on its obligation under Ar ticle 11 of the DSU.20 
17. This fact differentiate the case at hand with Dominican Republic – Safeguard Measures , 
where the respondent in that case claimed that the measure at issue is not a safeguard measure 
and therefore, accordingly the panel made an assessm ent whether the measure at issue is a 
                                                
17 Recitals (a) -(e) of Regulation 137.1/PMK.11/2014.  
18 Viet Nam’s panel request, pp. 3 -4; and  the Separate Customs Territory of Taiwan, Penghu, Kinmen, 
and Matsu ’s panel request, pp. 3 -4. 
19 Panel Report, para. 7.10.  
20 Panel Report, para. 7.10.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  safeguard measure or not.21 The other 10 WTO panel reports on safeguard measures, the panel 
never started their assessment by assessing whether the measure at issue is a safeguard measure 
within the meaning of Article 1  of the Agreement on Safeguards or not.  
18. The Panel has erred in making a finding of the consistency of 
Regulation  137.1/PMK.011/2014 as a stand -alone measure (not as a safeguard measure) which is 
outside the measure at issue identified in the Panel 's reques t. Indonesia always relates its defense 
for the co -complainants ' MFN claim in connection with its safeguard measure but never as a stand -
alone measure.22 This is because in the Panel Request, the co -complainants have explicitly 
identified the measure at iss ue as "the specific duty imposed as a safeguard measure . 23 If the co -
complainants intended to submit a separate claim of inconsistency with the MFN obligation as a 
stand -alone measure, the co -complainants must make it clear in the Panel Request so Indonesi a 
could also properly defend itself. The Panel in its questions also relates the MFN claim to the 
safeguard measure and not as stand -alone measure.24 The only time the co -complainants have 
ever proposed the MFN claim as a stand -alone measure was at the late r stage of the Panel 
proceeding, when the co -complainants answered the Panel 's question No. 51 and co -complainants 
comments on Indonesia 's second written submission, as an alternative argument.25 The 
Appellate  Body in EC and Certain Member States – Large Civil Aircraft  has made it very clear that 
a party's submissions during panel proceedings cannot cure a defect in a panel request.  
19. Based on the foregoing reasons, Indonesia is of the view that the Panel has acted beyond its 
term of reference because (1) th e panel makes a finding under Article 1 of the Agreement on 
Safeguard when there is no such claim in the panel request and neither party has ever contested 
this issue. In addition, the Panel's approach is in contradiction with the well -establishes law; 
(2) the Panel erred in making a finding of the inconsistency of Article I:1 of the GATT 1994 based 
on a stand -alone measure (not as a safeguard measure) which is not identified in the Panel 
request. Accordingly, Indonesia requests the Appellate Body to revers e the Panel 's conclusions and 
the Panel 's legal interpretations contained in paragraphs 7.10, 7.40, 7.42 -7.44 and 8.1.  
IV. THE PANEL FAILED TO MAKE AN OBJECTIVE AS SESSMENT UNDER ARTIC LE 11 OF 
THE DSU WITH RESPECT  TO FINDING REGULATIO N 137.1/PMK.011/2014 I S NOT A 
SAFEGUARD MEASURE  
20. Indonesia is of the view that making a finding that is not disputed by the parties, beyond its 
term of reference and in contradiction with the prior adopted panel or Appellate Body reports, 
cannot be justified under Article 11 of t he DSU. All  case laws referred to by the Panel to justify its 
approach have distinct facts and circumstances compared to the case at hand, which is one of the 
party disputed that a certain covered agreements were applicable.  
21. The Panel raised this issue wh ether the measure at issue is a safeguard measure within the 
meaning of Article 1 of the Agreement on Safeguards at the later stage of Panel proceeding which 
is on the second substantive meeting.26 In the first and second written submission, no party has 
ever raised the issue that Regulation 137.1/PMK.011/2014 is not a safeguard measure.  Ten panel 
reports concerning safeguard measure (excluding the Dominican Republic – Safeguard Measures  
and the case at hand) has never started an examination of claims of inc onsistency under any 
provision of the Agreement on Safeguards by first examining whether the measure at issue is in 
fact a safeguard measure within the meaning of Article 1 of the Agreement on Safeguards if not 
disputed by any party.  
22. Therefore, Indonesia r equests  the Appellate Body to reverse the Panel's conclusions and the 
Panel's legal interpretations contained in paragraphs 7.10 and 7.40, 7.43 and 8.1.  
                                                
21 Panel Report, Dominican Republic – Safeguard Measures , paras. 7.23 -7.32 and 7.89 -7.91. 
22 Indonesia’s first written submission paras. 198 -220; and Indonesia’s second written submission,  
paras. 115 -127. 
23 Viet Nam’s panel request, pp. 3 -4; and  the Separate Customs Territory of Taiwan, Penghu, Kinmen 
and Matsu ’s panel request, pp. 3 -4. 
24 See Panel first set of Questions No 42.  
25 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  and Viet Nam’s response to 
Panel question No.51, paras.1.20 -1.25. 
26 See Second Set of Panel Questions.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  V. CONCLUSION  
23. Based on the foregoing reasons, Indonesia requests the Appellate Body to reverse the 
Panel's specific conclusions and findings as set out above.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX B -2 
EXECUTIVE SUMMARY OF  THE SEPARATE CUSTOMS TER RITORY OF TAIWAN, PE NGHU,  
KINMEN AND MATSU 'S OTHER APPELLANT'S SU BMISSION  
1. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu seeks reversal by the 
Appellate Body of a number of findings made by the Panel in this dispute . 
2. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 's first ground of 
appeal is that the Panel erred in finding that the specific duty imposed by Indonesia is not a 
safeguard measure within the meaning of Article 1 of the Agreement on Safe guards, 
because the Panel's proposed definition is erroneous in that it (i) confuses the issue of the 
legal characterization of a safeguard measure with the legality of a safeguard measure, 
(ii) contradicts the object and purpose of the Agreement on Safegu ards, and (iii) diminishes 
the rights and obligations of WTO members under the Agreement on Safeguards and the 
GATT 1994.  
3. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu considers that 
Article  XIX:1(a) of the GATT 1994, which the Panel c onsiders to be the relevant paragraph 
for defining safeguard measures, only lays down a substantive rule governing the imposition 
of "safeguard measure" but does not provide any definition for "safeguard measure". The 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu further considers that the 
term "safeguard measure" should be broadly interpreted so as to encompass all measures 
taken against serious injury arising from increased imports without any limitation to the 
particular type of measure.  
4. For the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu's second ground 
of appeal, in the case that the Appellate Body finds that the specific duty imposed by 
Indonesia is a safeguard measure within the meaning of Article 1 of the Agreement on 
Safeguards, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu requests 
that the Appellate Body complete the analysis with respect to the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu's claims under the Agreement on 
Safeguard s and Articles XIX:1(a) and XIX:2 of the GATT 1994, and find that the specific 
duty is inconsistent with the relevant provisions of such agreements in accordance with The 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu's claims at the panel 
stage.  
5. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu considers that there 
is a sufficient factual basis for the Appellate Body to complete the analysis in the present 
dispute as the Panel has set forth the relevant facts in the Panel Report, and there are no 
overriding concerns which would prevent it from doing so.1  
 
                                                
1 (total word count: 343)  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX B -3 
EXECUTIVE SUMMARY O F VIET NAM 'S OTHER APPELLANT'S SU BMISSION  
1  INTRODUCTION1 
1.1.   Viet Nam files this other appeal for systemic and commercial reasons.  
1.2.  From a systemic perspective, Viet Nam disagrees with the Panel's interpretation of Article XIX 
GATT 1994 and the Agreement on Safeguards and its finding that the measures at issue do not 
constitute "safeguard measures" for purposes of WTO law for the follo wing reasons.  
1.3.  The Panel's approach would exclude from the multilateral disciplines of Article  XIX and the 
Agreement on Safeguards a wide array of measures that are clearly intended to prevent or remedy 
serious injury to the domestic industry; that are imposed as a resul t of domestic safeguard 
investigations; that are notified to the WTO Committee on Safeguards and to all other 
WTO Members as "safeguard measures"; that involve the participation of exporters, importers and 
other interested parties and exporting Governments  in complex and time -consuming 
investigations; that give rise to consultations required under the auspices of the Agreement on 
Safeguards; and that have substantial effects on the commercial interests of exporters and the 
trading community at large.  
1.4.  The P anel's interpretation of what is a "safeguard measure" conveys an improper message to 
governments. Under the Panel's approach, governments may – perhaps under pressure from 
domestic producers – initiate and conduct safeguard investigations, requiring the i nvolvement of 
exporters and exporting governments in financially and administratively burdensome 
investigations and then avoid any consequences under WTO law simply by tweaking the measure 
they impose at the end of the process. There may be many reasons wh y a Member would choose 
to proceed under its domestic safeguards laws rather than by, for example, imposing anti -dumping 
measures or increasing ordinary customs duties.  
1.5.  From a commercial perspective, Viet Nam's exports of the subject products have been 
seriously affected by Indonesia's safeguard measure. Viet Nam also notes that by virtue of 
Regulation No.  130/PMK.010/2017  of its Ministry of Finance, Indonesia has decided to extend the 
specific duty for a period of two years from the enactment of the regul ation on 20 September 
2017.  
1.6.  Viet Nam hopes that the Appellate Body will provide certainty with respect to the types of 
measures that are subject to Article XIX and the Agreement on Safeguards. In this connection, 
Viet Nam requests that the Appellate Body d etermine that Indonesia's specific measure  is a 
safeguard measure that is inconsistent with Article XIX and the Agreement on Safeguards.  
2  THE PANEL ERRED IN F INDING THAT INDONESI A'S SPECIFIC SAFEGUA RD DUTY IS 
NOT A "SAFEGUARD MEA SURE" UNDER ARTICLE XIX AND THE AGREEMENT ON 
SAFEGUARDS  
2.1.  Viet Nam appeals the Panel Report on the ground that the Panel made a reversible legal error 
in finding that Indonesia 's specific duty is not  a safeguard measure, as reflected in 
paragraphs  7.40-7.41, as well as paragraphs 8.1(a ) and 8.2 of the Panel Report.  
                                                
1 This Executive Summary contains a total of 2616 words (including footnotes). Viet Nam's Other 
Appellant's Submission contains a total of 26,196 words (including footnotes).  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  2.2.  Viet Nam submits that this finding is based on the Panel's erroneous interpretation and 
application of Article XIX, multiple  provisions of the Agreement on Safeguards, including Articles 1, 
9.1, as well as the General Interp retative Note to Annex 1 A of the WTO Agreement 
(General  Interpretative Note to Annex 1A).  The Panel based its position on two reasons:  
 First, the Panel stated that the discrimination that is called for by Article 9.1 of the 
Agreement on Safeguards is not i ntended to prevent or remedy serious injury, but rather 
to ensure certain market access for developing country imports.  
 Second , the Panel stated that there is a conflict between the obligation of excluding 
imports from certain developing countries under A rticle 9.1 of the Agreement on 
Safeguards and Article I:1 of the GATT 1994. By virtue of the General Interpretive Note 
to Annex 1A of the WTO Agreement, Article 9.1 prevails over Article I:1. Therefore, there 
is "no legal basis for the assertion that the d iscriminatory application of a safeguard 
measure in accordance with Article 9.1 constitutes a suspension of Article I:1, within the 
meaning of Article XIX:1(a)".  
2.3.  In the remaining parts of this section, Viet Nam explains the legal standard to determine 
whether the measure at issue is a safeguard measure and elaborates on the grounds of its appeal.  
2.1  Legal standard  to determine whether the measure at issue is a safeguard measure  
2.4.  Viet Nam considers that the following elements determine whether a measure is a "s afeguard 
measure" for the purposes of Article XIX of the GATT 1994 and the Agreement on Safeguards:  
(i) The measure encompasses a "suspension" of GATT "obligations", or a "withdrawal" or 
"modification" of GATT concessions. The term "obligations" in Article XI X:1(a) includes 
the most-favoured-nation (MFN) treatment obligation under Article  I:1 of the 
GATT  1994;  
(ii) The measure is taken with a view to preventing or remedying serious injury to the 
domestic industry or threat thereof, and facilitating the adjustment of the domestic 
industry; and  
(iii) The fact that a Member takes a measure as a result of an investigation con ducted 
pursuant to Article XIX and the Agreement on Safeguards, notifies that investigation 
and the resulting measure to the Committee on Safeguards and to the other 
WTO Members is evidence that the measure has been taken as a "safeguard measure" 
to preven t or remedy serious injury to the domestic industry.  
2.2  Ground 1: the Panel's consideration that an exclusion under Article 9.1 is not a 
"suspension" intended to prevent or remedy serious injury  
2.5.  The Panel's first reason for stating that an exclusion of impor ts under Article 9.1 is not a 
"suspension"  for Article XIX purposes was that it  considered that the discrimination called for by 
Article 9.1 of the Agreement on Safeguards is not intended to prevent or remedy serious injury. 
Hence , it was not the  type of s uspension envisaged by Article XIX:1(a).  
2.6.  Viet Nam considers that the Panel arrived at this conclusion by unduly splitting the safeguard 
measure at issue into two of its components: (i) on the one hand, the specific duty that applies to 
the non -excluded co untries; and (ii) on the other hand, the exclusion from the application of that 
duty to the benefit of imports from certain developing countries. After it bifurcated the measure in 
this manner, the Panel's subsequent reasoning was based entirely on the pur pose of the 
second  part, while it disregarded the first part . The Panel did not address whether the measure as 
a whole  was aimed to prevent or remedy serious injury to the extent necessary.  
2.7.  However, the two aspects of Indonesia's safeguard measure are part  and parcel of the same 
measure. They are intrinsically linked. This is evident from the design, structure and the intended 
operation of the measure at issue, based on the texts of  KPPI's Final Disclosure Report and 
Regulation No. 137.1/PMK.011/2014 . Clear ly, Indonesia could not impose the specific duty unless WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
- 18 - 
 
  it met the requirements of both Article 9.1 of the Agreement on Safeguards and its domestic 
legislation implementing that provision.  
2.8.  Furthermore, in the Panel's view, " the fact that a Member initiated  and conducted an 
investigation under its domestic safeguards legislation does not necessarily mean that the 
measures imposed on the investigated product at the end of that process are 'safeguard measures ' 
within the meaning of Article XIX and the Agreemen t on Safeguards ".2 However, both the fact that 
Indonesia's specific duty was imposed as a result of a safeguard investigation initiated, conducted 
and notified under Article XIX, the Agreement on Safeguards and Indonesia's domestic safeguards 
legislation a nd the fact that the resulting measure was notified to all exporting Members and the 
Committee on Safeguards as a safeguard measure reveal a clear intention to impose a measure 
designed to prevent and remedy the serious injury to the domestic industry.  
2.9.  For these reasons , Viet Nam submits that the Panel erred in finding that an exclusion of 
imports under Article 9.1 of the Agreement on Safeguards is not a "suspension" for the purposes 
of Article XIX as the discrimination called for by Article 9.1 is not inte nded to prevent or remedy 
serious injury.  
2.3  Ground 2: the Panel's consideration that an exclusion under Article 9.1 is not a 
"suspension" because the General Interpretative Note to Annex 1A of the 
WTO  Agreement applies  
2.10.   The Panel 's second reason was that the discriminatory application of a safeguard measure in 
accordance with Article 9.1 does not constitute a "suspension" of Article I:1, because, by virtue of 
the General Interpretative Note to Annex 1A, Article 9.1  prevails over the MFN obligation. Thus, 
accor ding to the Panel, the question of "suspension" does not arise when a Member excludes from 
the scope of a safeguard measure imports from developing countries, pursuant to Article 9.1.3 In 
Viet Nam 's view, this argument is arbitrary and i nconsistent  with th e Panel 's own reasoning.  
2.11.   First, the Panel's resort to the General Interpretative Note  to Annex 1A  to determine the 
relationship between Article I:1 and Article 9.1 is in evident contradiction with the Panel's previous 
position that, as " the speci fic duty does not constitute a 'safeguard measure'  within the meaning of 
Article 1 of the Agreement on Safeguards  … there is … no basis for Indonesia 's assertion that it 
was legally required to apply the specific duty in  the manner required by Article  9.1".4 Thus, as a 
matter of internal consistency, after having determined that Article 9.1 was not a proper 
justification for the exclusion of imports, the Panel nonetheless relied on that rejected justification 
to invoke the General Interpretative Note and establish t hat there was no proper "suspension" of 
Article  I:1. The Panel's reasoning is arbitrary to say the least.  
2.12.   More importantly , the Panel's reference to the General Interpretative Note  to Annex 1A  
implies erroneously that there is a "conflict" between the rule  in Article 9.1 of the Agreement on 
Safeguards and the MFN obligation under Article I:1 of the GATT 1994. A lthough adherence to 
Article 9.1 will lead to a violation of Article I:1, Viet Nam  considers that the relationship between 
these provisions cannot be  properly characterized as a conflict . Rather, Article I:1 of the 
GATT  1994, on the one hand, and Article XIX:1(a), as clarified by the Agreement on Safeguards, 
including Article 9.1, on the other hand, follow a "general  rule - exception" relationship. Mor eover, 
given that Articles I:1 and XIX:1(a) are parts of the same covered agreement  – the GATT 1994, 
there is no conflict between provisions in two different agreements. Thus, for this reason too, the 
General Interpretative Note  to Annex 1A  does not apply.  
2.13.   However, even assuming that there was a "conflict" between Article I:1 and Article  9.1, the 
Panel did not explain how the prevalence of one provision over another would entail that the 
provision that does not apply has to be considered as not "suspended".  The Panel simply assumed 
that these two notions have different meanings, without examining them with a view to 
determining the applicability of the General Interpretative Note  to Annex 1A . 
                                                
2 Panel Report, Indonesia – Iron or  Steel Products , para. 7.34.  
3 Panel Report, Indonesia – Iron or Steel Products , para. 7.29.  
4 Panel Report, Indonesia – Iron or Steel Products , para. 7.26.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  2.14.   In light of the foregoing, the Panel erred in finding that the  discriminatory application of a 
safeguard measure in accordance with Article 9.1 does not  constitute a "suspension" of Article I:1, 
because of the application of the General Interpretative Note  to Annex 1A .  
2.15.   Consequently, the Panel's general finding that the suspension of Article I:1 to exclude 
certain imports from the application of the specific duty, i.e. imports from developing countries 
pursuant to Article 9.1, does not  constitute  a "suspension" for purposes of  Article XIX:1(a) and the 
Agreement on Safegua rds has no legal basis.  
3  VIET NAM'S  REQUEST S FOR THE COMPLETION  OF THE LEGAL ANALYSIS  
3.1.  In the event that the Appellate Body reverses the Panel's finding that Indonesia's specific 
duty is not a safeguard measure, Viet Nam requests the Appellate Body to compl ete the legal 
analysis with respect to its claims under Article XIX and the Agreement on Safeguards, and to 
make findings with respect to these claims. Viet Nam submits that th ere are sufficient undisputed 
facts on the record to make these findings . Further, Viet Nam considers that the completion of the 
legal analysis is essential to achieve a prompt and positive solution to this dispute within the 
meaning of Articles 3.3 and 3.7 of the DSU, particularly in the light of Indonesia's notification of 
20 September 2017 proposing to extend the safeguard duty for a period of two years .  
4  VIET NAM REQUESTS TH E APPELLATE BODY TO LEAVE THE PANEL'S FI NDING UNDER 
ARTICLE I:1 OF THE G ATT 1994 UNDISTURBED   
4.1.  Viet Nam's does not appeal the Panel 's finding of the incon sistency of Indonesia's specific 
duty with Indonesia's MFN -treatment obligation under Article I:1 of the GATT 1994  in 
paragraphs  7.42-7.44 and 8.1(b) of the Panel Report. Moreover, Viet Nam recalls that 
Article  XIX:1(a) allows Members to suspend a GATT obl igation or to withdraw or modify a tariff 
concession only if they satisfy substantive and procedural requirements in Article XIX of the 
GATT  1994 and the Agreement on Safeguards. Given that the measures at issue are inconsistent 
with numerous requirements of Article XIX and the Agreement on Safeguards, Indonesia cannot 
avail itself of the escape clause in Article XIX:1(a).  On this basis, Viet Nam, requests the Appellate 
Body to leave this finding undisturbed . 
5  REQUEST FOR FINDINGS , RULINGS, AND SUGGE STION FO R IMPLEMENTATION  
5.1.  In the light of the foregoing, Viet Nam  request s the Appellate Body to:  
a. Reverse the Panel's finding in paragraphs 7.40 -7.41, 8.1(a) and 8.2 of the Panel Report  
that Indonesia's measure is not a safeguard measure within the meaning of 
Article XIX:1(a) of the GATT 1994 and Article 1 of the Agreement on Safeguards  and to 
find instead that this specific duty is a safeguard measure within the meaning of  those 
provisions. Viet Nam further requests the Appellate Body to declare moot and of no leg al 
effect the Panel 's legal interpretations provided in paragraphs 7.12 -7.41 of the Panel 
Report, and paragraphs 2.9 -3.7 of Annex A -3 of the Addendum to the Panel Report ;  
b. Complete the legal analysis with respect to the complainants' claims under 
Articles  XIX:1(a) and XIX:2 of the GATT 1994 and the Agreement on Safeguards;  
c. Leave undisturbed the Panel 's finding contained in paragraphs 7.42 -7.44 and 8.1(b)  of 
the Panel Report that Indonesia 's specific duty is inconsistent with Indonesia 's 
MFN-treatment obliga tion under Article I:1 of the GATT 1994 ; and  
d. Exercise its discretion under Article 19.1 of the DSU  and suggest that Indonesia bring its 
measure, and any extension of it, into conformity with its WTO obligations by 
immediately withdrawing the specific duty at issue.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX B -4 
EXECUTIVE SUMMARY OF  VIET NAM 'S APPELLEE'S SUBMISSIO N 
Viet Nam agrees with Indonesia's first ground of appeal . Viet Nam provided its views on this 1.1.  
matter in paragraphs 3.1 -3.61 of its other appellant's submission. Thus, Viet Nam requests the 
Appellate Body to reverse the Panel's finding that the measure at is sue is not a safeguard 
measure. However, contrary to Indonesia's position, Viet Nam requests the Appellate Body to 
complete the Panel's legal analysis with respect to its safeguard -related claims.  
Viet Nam disagrees with Indonesia's second ground of appeal . Indonesia's appeal does not 1.2.  
clearly set out the Panel's errors, as required by Rules 20(2)(d) a nd 21(2)(b)(i) of the 
Appellate  Body's Working Procedures, and this lack of clarity prevents Viet Nam from articulating a 
proper defence of the Panel's finding . Indonesia seems to suggest that the only basis for the 
Panel's finding of inconsistency with Article I:1 was the finding that the measure was not a 
safeguard measure and, therefore, that a reversal of this characterization should logically lead to a 
reversal of the inconsistency with Article I:1. However, the mere characterization of the measure 
was not determinative of whether the measure was inconsistent with Article I:1 of the GATT 1994. 
Rather, to find the inconsistency of the measure with Article I:1 , the Panel analyzed the Article I:1 
claim on the basis of its merits, in the light of the requirements of that provision.  
In any event, Indonesia has failed to demonstrate that the Panel's finding that Indonesia's 1.3.  
specific duty is inconsistent with Articl e I:1 of the GATT 1994 is outside of the Panel's terms of 
reference and thus inconsistent with Article 6.2 of the DSU. The precise basis for Indonesia's 
procedural objection is unclear. It appears to be that the proper identification of the specific duty 
in Viet Nam's Panel request somehow depended on whether the duty was ultimately characterized 
by the Panel as a "safeguard measure". Nevertheless, Indonesia failed to demonstrate how the 
Panel's characterization of the measure was dispositive of whether Vie t Nam properly identified the 
specific duty in its Panel request and renders the Panel's finding of inconsistency with Article I:1 of 
the GATT 1994 outside its terms of reference. Viet Nam's claim under Article I:1 was made in 
compliance with the requireme nts of Article 6.2, and, therefore, the matter was properly within the 
Panel's terms of reference.  
Viet Nam's Panel request identifies the measure at issue as a "specific duty" imposed on 1.4.  
imports of the subject product, specified in the same paragraph (i.e . "flat -rolled product of iron or 
non-alloy steel …"), which was "imposed [ by Indonesian authorities ] as a safeguard measure, as a 
result of the investigation initiated on 19 December 2012 and concluded by the Final Disclosure 
Report". Viet Nam also cited Indonesia's own notifications of various aspects of the safeguard 
investigation leading to the imposition of this duty to the WTO Committee on Safeguards.1 
Indonesia, Viet Nam, and the Panel had identified the same measure. The fact that the Panel 
request uses the wording "imposed as a safeguard measure" is a reflection of how Indonesia itself 
imposed the measure.  
Furthermore, the title of Section "Legal Basis" of the Panel request makes it clear that this 1.5.  
section addresses the second requirement of Articl e 6.2 (i.e. legal basis of the complaint). In 
addition, the text of paragraph 1.7(a), by referring to "the specific duty", connects the legal basis 
of the complaint to the measure at issue identified in paragraph para. 1.5(a) of the Panel request 
(i.e. the  specific duty). The Panel request also meets the other requirements in Article 6.2. It was 
"made in writing" and "indicate[s] whether consultations were held".2  
Viet Nam also disagrees with Indonesia's third ground of appeal . The Panel was not precluded 1.6.  
by its terms of reference from determining whether the measure at issue was a safeguard 
measure for purposes of WTO law.  
                                                
1 See Indonesia – Iron or Steel Products , Request for the Establishment of a Panel by Viet Nam, 
WT/DS496/3, 18 September 2015, footnote 4.  
2 See Indonesia – Iron or Steel Products , Request for the Establishment of a Panel by Viet Nam, 
WT/DS496/3, 18 September 2015, p. 1.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
- 21 - 
 
  While Viet Nam has not made a claim under Article 11 of the DSU, it agrees with Indonesia's 1.7.  
general proposition that the Panel did not  conduct the treatment of the threshold question in a 
manner that would ensure an objective assessment of the question before it.  
Viet Nam requests the Appellate Body to:  1.8.  
a. Reverse the Panel's finding that Indonesia's measure is not a safeguard measure and t o 
declare of no legal effect the Panel's legal interpretations provided in paragraphs 7.12 -
7.41 of the Panel Report, and paragraphs 2.9 -3.7 of Annex A -3 of the Addendum to the 
Panel Report;  
b. Complete the legal analysis with respect to the complainants' cla ims under Articles 
XIX:1(a) and XIX:2 of the GATT 1994 and the Agreement on Safeguards;  
c. Dismiss Indonesia's second ground of appeal as Indonesia failed to comply with the 
requirements of Rules 20(2)(d) and 21(2)(b)(i) of the Appellate Body's Working 
Proce dures. Should the Appellate Body reject Viet Nam's procedural objection, the 
Appellate Body should find that the Panel did not act inconsistently with Article 6.2 of the 
DSU; 
d. Reject Indonesia's third ground of appeal, as the Panel was not precluded by its terms of 
reference from determining whether the measure at issue is a safeguard measure for 
purposes of WTO law; and  
e. Exercise its discretion under Article 19.1 of the DSU and suggest that Indonesia bring its 
measure, and any extension of it, into conformi ty with its WTO  obligations by 
immediately withdrawing the specific duty at issue.3 
As no party appealed the Panel's finding that the specific duty at issue is inconsistent with 1.9.  
Article I:1 of the GATT 1994, the Appellate Body should leave this fi nding, as  set out in 
paragraphs  7.42-7.44 and 8.1(b) of the Panel Report, undisturbed.  
                                                
3 See Viet Nam's other appellant's submission, paras. 6.4 -6.7. WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX B -5 
EXECUTIVE SUMMARY OF  THE SEPARATE CUSTOMS  TERRITORY OF TAIWAN,  PENGHU,  
KINMEN AND MATSU 'S APPELLEE'S SUBMISSIO N 
1. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu files this appellee's 
submission seeking dismissal of certain grounds of appeal from Indonesia's Appellant 
Submission filed on 28 September 2017.  
2. The Separate Customs Territory of Taiwan, P enghu, Kinmen and Matsu agrees with 
Indonesia's claim that the Panel erred in determining that the specific duty was not a 
safeguard measure. Since the Separate Customs Territory of Taiwan, Penghu, Kinmen and 
Matsu takes the position that the specific duty  is a safeguard measure, the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu has decided not to address 
Indonesia's claim that the Panel failed to make an objective assessment under Article 11 of 
the DSU with respect to finding that the spec ific duty is not a safeguard measure.  
3. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu disagrees with 
Indonesia's claim that the Panel acted beyond its terms of reference when it assessed 
whether the specific duty is a safeguard measure w ithin the meaning of Article 1 of the 
Agreement on Safeguards. The Separate Customs Territory of Taiwan, Penghu, Kinmen and 
Matsu also disagrees with Indonesia's claim that the Panel acted beyond its terms of 
reference and erred when it found that the spec ific duty is inconsistent with Article I:1 of the 
GATT 1994.  
4. Finally, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu disagrees 
with Indonesia's claim that the Appellate Body has no grounds to complete the legal analysis 
should the Appel late Body find the specific duty at issue to be a safeguard measure.  
5. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu submits that 
Indonesia's appeal of the Panel's finding on the inconsistency of  the specific duty with 
Article  I:1 must b e dismissed on grounds that:  
 Indonesia's appeal does not fulfil the requirements of Rules 20(2)(d) and 21(2)(b)(i) 
of the Working Rules for Appellate review, as it does not sufficiently identify the 
alleged errors in the issues of law;  
 The Panel did not ex ceed its terms of reference in assessing the legal 
characterisation of the specific duty, as it is the Panel's duty to perform an objective 
assessment of the matter as required by Article 11 of the DSU;  
 The Panel did not exceed its terms of reference in fi nding that the specific duty is 
inconsistent with Article I:1 of the GATT 1994, as the Article I:1 claim against the 
specific duty is plainly and clearly prescribed in the text of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu's panel r equest; and  
 The Panel properly performed legal analysis under Article I:1 of the GATT 1994 and 
correctly found that Indonesia breached its MFN -treatment obligation under such 
provision.  
6. Lastly, in the case that the Appellate Body finds that the specific du ty is a safeguard 
measure, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu requests 
that the Appellate Body complete the legal analysis for the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu's claims under the Agreement o n Safeguards and 
Articles XIX:1(a) and XIX:1 of the GATT  1994.1 
                                                
1 (total word cou nt: 421)  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX B -6 
EXECUTIVE SUMMARY OF  INDONESIA 'S APPELLEE'S SUBMISSIO N 
I. INTRO DUCTION1 
1. This dispute concerns Indonesia safeguard measure that is not considered as a safeguard 
measure by the Panel. All parties to the dispute agreed that the measure at issue, Regulation 
No 137.1/PMK.011/2014 (Regulation 137) is in fact a safegua rd measure. Thu s, the 
Appellate  Body is called upon to clarify this issue not only for this dispute but also for systemic 
reason.  
2. Indonesia stands on its position that although Indonesia agree with the Other Appellants 
that Regulation 137 is in fact a safeguard measure,  Indonesia contends that the Appellate Body 
(1) should not complete the legal analysis on Regulation 137 and/or Regulation 130 (2) should 
reject the Other Appellant 's request to leave the Panel 's finding under Article I:1 GATT 1994 
undisturbed should the A ppellate Body reverse the Panel 's finding that Indonesia 's specific duty is 
not a safeguard measure (3) should not exercise its discretion under Article 19.1 DSU to suggest 
that the only way for Indonesia to bring its measure into conformity with its WTO o bligations is to 
immediately withdraw Regulation 137 and Regulation 130.  
II. THE APPELLATE BODY S HALL NOT COMPLETE TH E LEGAL ANALYSIS WIT H RESPECT 
TO OTHER APPELLANTS ' CLAIM UNDER THE AGRE EMENT ON SAFEGUARDS AND 
ARTICLE XIX:1(A) AND  XIX:2 GATT 1994  
3. The App ellate Body has been very cautious in exercising this discretion because the actual 
mandate of the Appellate Body is only to uphold, modify or reverse the panel 's findings appealed.2 
In this case, the Other Appellants request the Appellate Body to complete  the legal analysis on 
their claims concerning measure at issue that has expired and been replaced with a new regulation 
that has different sets of facts and has not been addressed at all in the panel stage. Indonesia is of 
the view that the Appellate Body  should reject the Other Appellants ' request to complete the legal 
analysis because (1) completing legal analysis for an expired measure would not be necessary to 
secure positive solution; (2) some claims under Regulation 137 invo lves a novel character; an d 
(3) there is no sufficient factual findings nor any undisputed facts in  the panel report on 
Regulation  130. 
A. The Appellate Body Shall Not Complete The Legal Analysis On Expired Measure  
4. Indonesia submits that completing the legal analysis on Regulation 137 is not necessary to 
secure a positive solution to this dispute since Regulation 137 has been replaced by Regulation 
130.3 Regulation 130 is essentially different with Regulation 137 because it were based on 
different investigation, legal basis, period of investigation, set of facts on increased imports, injury 
and causal link, KPPI 's final reports, notifications, and different consultations.  
B. The Appellate Body Shall Not Complete The Legal Analysis On Novel Issues  
5. Some claims raised by the Other Appel lants involves a novel issue that has never been 
addressed by the Appellate Body nor the panels, i.e., the claim relating to parallelism between the 
product scope of the investigation and the safeguard measure at issue; and the maximum time 
gap between the  end of the POI and the issuance of investigating authority final disclosure report 
or the imposition of the safeguard measure, which have never been address ed by the 
Appellate  Body.  
                                                
1 This Executive Summary contains 1,037 words including footnotes. Indonesia’s Appellee’s Submission 
contains 10,151 words, including footnotes.  
2 Article 17.12 and 17.13 DSU.  
3 Panel Report, Dominican – PP Bags , para. 7.22.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  6. Indonesia submits that should the Appellate Body were to decide to comple te the legal 
analysis on claims relating to Regulation 137, Indonesia respectfully requests the Appellate Body 
not to complete the legal analysis on claims containing novel issues.  
C. The Appellate Body Shall Not Complete The Legal Analysis On Regulation 130 
7. Indonesia is of the view that the Appellate Body should not complete the legal analysis on 
Regulation 130. Although Regulation 130 is the amendment of Regulation 137, there is no 
sufficient factual findings nor any undisputed facts in the panel report. Mor eover, the Other 
Appellants also have never raised, argued, nor put any evidence concerning Regulation 130.  
8. All claims relating to Regulation 137 cannot be automati cally assessed under 
Regulation  130. Regulation 130 is totally different than Regulation 13 7. Therefore, Indonesia 's due 
process right will be detrimentally undermined should the Appellate Body decides to complete the 
legal analysis on Regulation 130 in order to secure positive solution to this dispute.  
III. VIET NAM REQUEST TO LEAVE THE PANEL 'S FINDING UNDER ARTI CLE I:1 
GATT  1994 SHOULD BE REJEC TED 
9. Indonesia submits that if the Appellate Body were to reverse the Panel finding that 
Regulation 137 is not a safeguard measure, the Panel erred in finding that Regulation 137 is 
inconsistent with Arti cle I:1 GATT 1994 since the sole reason is because the Panel found that 
Regulation 137 is not a safeguard measure.  
10. Indonesia submits that Regulation 137 is a safeguard measure. Under Article 9.1 of the 
Agreement on Safeguards Indonesia is obliged to exclu de certain developing country Members 
from the imposition of the safeguard measure. This obligation is not conditional upon whether 
Indonesia has satisfied all substantive and procedural requirements in Article XIX and the 
Agreement on Safeguards.  
IV. VIET NAM REQUEST FOR SU GGESTION FOR IMPLEME NTATION SHOULD BE 
REJECTED  
11. Indonesia submits that the Appellate Body should reject Viet Nam 's request for the 
Appellate  Body to suggest that the only manner in which Indonesia could remove the various 
allegations of inconsistencies at issue is by immediately withdrawing both Regulation 137 and 
Regulation 130 because (1) Regulation 137 is no longer in force; (2) the Appellate Body should 
confer Indonesia the discretion to choose on how Indonesia could implement the App ellate Body 's 
recommendation; and (3) the Appellate Body cannot complete the legal analysis and make any 
finding or recommendation or suggestion on Regulation.  
V. CONCLUSION  
12. For the reasons above, Indonesia respectfully requests the Appellate Body to rejec t (1) the 
Other Appellants' request to complete the legal analysis under the Agreement on Safeguards and 
Article XIX:1(a) and XIX:2 GATT 1994; (2) Viet Nam request to leave the panel 's finding under 
Article I:1 GATT 1994; and (3) Viet Nam request for sugge stion for implementation.  
_______________  
 
 
 
 
 WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THI RD PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Australia 's third participant's submission  26 
Annex  C-2 Executive summary of the European Union 's third participant's submission  27 
Annex  C-3 Executive summary of Japan 's third participant's submission  28 
 
 WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
- 26 - 
 
  ANNEX  C-1 
EXECUTIVE SUMMARY OF  AUSTRALIA 'S THIRD PARTICIPANT'S SUBMISSION  
I. EXECUTIVE SUMMARY1 
1. Australia considers that the Panel did not err in finding that Indonesia's  specific duty did not 
constitute a safeguard measure  for the purpose of Article XIX:1(a) of the GATT 1994 .2 
 
2. Article XIX:1(a) establishes that a "safegu ard measure" is a measure that:  
 
(i) suspends a Member's GATT obligation or withdraws or modifies a Member's scheduled 
tariff concession  (this comprises the substantive content of a safeguard measure) ; 
and 
(ii) suspends that obligation, or withdraws or modifies that concession,  with the aim of  
address ing 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 (this 
comprises the substantive objective of a safeguard measure) . 
 
3. Importantly, the content and objective of a safeguard measure are linked  – i.e., in order to 
constitute a safeguard measure,  the obligation that is suspended  must be suspended with 
the aim of addressing  an injurious surge of imports caused or threatened by complying with 
that obligation.3 
4. While Australia agrees with Vietnam and Chinese Taipei that the Panel's definition  of a 
safeguard measure improperly impo rted conditions related to a measure's  valid imposition , 
this erroneous definition did not taint the Panel's substantive finding . Rather, t he Panel 
found that Indonesia's specific  duty did not suspend any relevant GATT obliga tion for the 
purpose of Article XIX:1(a).4 
5. While t he text of Ar ticle XIX:1(a) does not explicitl y limit the obligations that can relevant ly 
be suspended for the purpose  of the provision , it establishes  that the obligation at issue 
must be capable of being suspended  to address an injurious surge of imports caused or 
threatened by complying  with that obligation . 
6. In Australia's view, the participants' argument  that the specific duty suspended Article I:1 
for the purpose of Article XIX:1(a) fails to demonstrate  that the discriminatory  application of 
the duty had the requisite objective  of a safeguard measure; and ignore s the requisite link  
between a safeguard measure's two constituent elements.  
7. Since the Panel's finding that Indonesia's specific duty is not a sa feguard measure is 
supported by a proper interpretation of Article XIX:1(a), Australia submits that the 
participants' claims should  be rejected.  
 
 
 
 
                                                
1 This executive summary totals 432  words (including footnotes). Australia's third participa nt submission 
totals 4326  words (including footnotes).  
2 Panel Report, Indonesia – Iron or Steel Products , para. 7.40.  
3 Appellate Body Reports, Argentina – Footwear (EC) , para. 93;  and Korea  – Dairy , para. 86.  
4 Panel Report, Indonesia – Iron or Steel Products , paras.  7.40-7.41. WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX C -2 
EXECUTIVE SUMMARY OF  THE EUROPEAN UNION 'S THIRD PARTICIPANT'S SUBMISSION1 
A. CHARACTERISATION OF THE MEASURE AT ISSUE   
1. The European Union considers that the Panel was right to consider on its own motion 
whether the measure at issue constituted a safeguard measure. A panel's obligation to 
"make an objective assessment of the matter"  pursuant to Article 11 comprises the 
assessment of the applicability of the covered Agreement. The applicability of the provisions 
which the complainant alleges to be breached is an important part of its prima facie  case. 
Thus, where a panel has doubts ab out this element, it should examine it on its own motion, 
regardless of whether or not the parties have raised arguments about it. The fact that an 
issue is not disputed between the parties does not preclude the panel from examining it and 
coming to an int erpretation which differs from the concurring view of the parties, in line with 
the general principle jura novit curia . The issue is to be distinguished from the question 
whether a panel can address claims which have not been made by the complainant, which  it 
cannot.  
2. However, where a panel intends to deviate fundamentally from qualifications shared by both 
parties, it is obliged to give parties ample opportunity to present their views on that 
question before the issue is actually adjudicated. This flows fro m the fundamental principle 
of due process, which includes the right to be heard, i.e. for parties to have an adequate 
opportunity to pursue their claims, make out their defences, and establish the facts.  
B. THE CHARACTERISATION  OF THE MEASURE ON SU BSTANCE  
3. To understand what a safeguard measure is, it is required a harmonious reading of the 
Agreement on Safeguards and Article XIX of GATT 1994.  
4. The European Union notes that there are two defining features of a safeguard measure: 
"suspend the obligation" and  "withdraw or modify the concession". The other conditions in 
Article XIX, whilst not sine qua non , may nevertheless serve as confirming hallmarks: 
increased quantities; like/competitive product; injury; causation.  
C. THE STAND -ALONE MFN VIOLATION  
5. A panel 's terms of reference must be objectively determined on the basis of the panel 
request as it existed at the time of filing; subsequent submissions cannot cure a defect in a 
panel request. In the present case, the European Union considers that in the circum stances 
of the case, the co -complainants' panel requests (although being very broad and general on 
their face) can only be understood as setting out the case as a case against a safeguard 
measure.  
6. Under this premise, the violation of Article I:1 of GATT 1 994 can logically only have been 
consequential to an alleged wrongful application of Article 9.1 of Safeguards Agreement (due 
to the application of the exclusion to six EU Member States). This alleged breach is 
fundamentally different in nature from the br each ultimately found by the Panel, namely a 
breach of Article I:1 due to the exclusion of 118 developing countries, given the non -
applicability of Article 9.1 of Safeguards Agreement. The fact that the panel requests did 
not, as they should have, spell ou t clearly how or why the measure was supposed to have 
violated the provisions it allegedly breaches, cannot be relied on to subsequently broaden 
the scope of the case in order to include claims which were not included in the beginning.  
                                                
1 Total number of words (including footnotes but excluding executive summary) = 8069; total number 
of words of the executive summary = 547.  WT/DS490/AB/R/Add.1 • WT/DS496/AB/R/Add.1  
 
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  ANNEX C -3 
EXECUTIVE SUMMARY OF  JAPAN 'S THIRD PARTICIPANT'S SUBMISSION1 
1. In Japan 's view, the Panel improperly  examined as  a preliminary issue wh ether the duty at 
issue was a "safeguard measure " defined as a measure suspending, withdrawing or modifying a 
GATT obligation or concession in order to prevent or remedy serious injury.  
2. Japan notes that Article XIX:1(a) of the GATT 1994 does not contain a definition of what i s a 
"safeguard measure ". At best, it can be deduced  from the text of Article XIX:1(a) of the 
GATT  1994 that this provision can be invoked by a Member when it is necessary to just ify a 
measure that is  inconsistent with any other GATT provision  (e.g., GATT Articles I, II or XI) 
provided that the measure meets the requirements laid down in Article XIX of the GATT 1994  and 
the Agreement on Safeguards . 
3. Thus, Japan understands that  the only requirement in order for a panel to examine whether 
a measu re is consistent/inconsistent with Article XIX:1(a) of the GATT 1994 and the Agreement on 
Safeguards  is whether a GATT obligation is suspended and/or a concession is withdrawn/modified 
and that the Member applying the measure invokes Article XIX of the GAT T 1994 and the 
Agreement on Safeguards . The question of whether the measure is necessary to prevent or 
remedy serious injury is not relevant to determine whether a panel may proceed with the 
examination of whether the measure is consistent/inconsistent wi th Article XIX:1(a) of the 
GATT  1994 and the Agreeme nt on Safeguards but rather must be part of the examination of 
whether the requirements set out in Article XIX:1(a) and the Agreement on Safeguards are 
satisfied.  
__________  
 
 
                                                
1 264 words.