WT/DS518/9  
 
7 January  2019 
(19-0068) Page: 1/3 
  Original: English  
 
INDIA – CERTAIN MEAS URES ON IMPORTS OF I RON AND STEEL PRODUC TS 
NOTIFICATION OF AN O THER APPEAL BY JAPAN  UNDER ARTICLES 16.4  AND 17 OF THE 
UNDERSTANDING ON RUL ES AND PROCEDURES GO VERNING THE  
SETTLEMENT OF DISPUT ES AND UNDER RULE 23  OF THE  
WORKING PROCEDURES FOR APPEL LATE REVIEW  
The following communication, dated 21 December 2018, from the delegation of Japan , is being 
circulated to Members . 
 
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Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing th e 
Settlement of Disputes (DSU) and Rule 23(1) of the Working Procedures for Appellate Review, Japan 
hereby notifies the Dispute Settlement Body of its decision to appeal to the Appellate Body certain 
issues of law and legal interpretation covered in the Pa nel Report entitled India – Certain Measures 
on Imports of Iron and Steel Products  (WT/DS518/R), which was circulated on 6 November 2018 
("the Panel Report "). 
Pursuant to Rules 23(1) and 23(3) of the Working Procedures for Appellate Review, Japan 
simultane ously files this Notice of Other Appeal and its Other Appellant's Submission with the 
Appellate Body Secretariat. Japan is also providing an executive summary of the Other Appellant's 
Submission, in accordance with the Guidelines in Respect of Executive Su mmaries of Written 
Submissions in Appellate Proceedings (WT/AB/23).  
For the reasons further elaborated in its Other Appellant Submission, Japan appeals and requests 
the Appellate Body to reverse the findings and conclusions of the Panel with respect to the  errors of 
law and legal interpretations contained in the Panel Report described below:1  
1. The Panel erred in its interpretation of Article XIX:1(a) of the GATT 1994 when finding that 
Article XIX:1(a) does not provide any guidance on how the relationship be tween unforeseen 
developments and the increase in imports shall be examined.2 The Panel erred by failing to 
recognize that the reasoned and adequate explanation of a logical connection between the 
unforeseen developments and the increase in imports may req uire a demonstration of how 
the unforeseen developments modified the conditions of competition between the domestic 
and imported products. Consequently, the Panel also erred in its application of Article XIX:1(a) 
of the GATT 1994 by failing to conclude tha t, in the circumstances of this case, the Indian 
authority, in the absence of an explanation on how the alleged unforeseen developments have 
modified the conditions of competition between the imported and domestic products to the 
detriment of the latter, f ailed to demonstrate that the increase in imports of the products 
concerned into India occurred as a result of unforeseen developments. As a result, Japan 
requests the Appellate Body to reverse the Panel's findings in paragraph 7.105 of the Panel 
Report an d to find that an analysis of how the unforeseen developments modify the conditions 
of competition between the imported and domestic products to the detriment of the latter may 
be required under Article XIX:1(a) of the GATT  1994. Japan further requests the  Appellate 
Body to find that India acted inconsistently with Article XIX:1(a) of the GATT 1994 as it failed 
                                                
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 the ability of Japan to refe r to other paragraphs of the Panel Report in the context of its other appeal.  
2 Panel Report, para. 7.105.  WT/DS518/9  
 
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  to examine how the alleged unforeseen developments modified the conditions of competition 
between the imported and domestic products to the detrimen t of the latter.  
2. The Panel erred in its application of Article 4.1(c) of the Agreement on Safeguards when finding 
that Japan has not demonstrated that India failed to meet the requirement of "a major 
proportion " under Article 4.1(c).3 More specifically, th e Panel erred in rejecting 
Japan's  argument that the domestic industry's definition involved a "self-selection " process 
that introduced a material risk of distortion and in carrying out a purely quantitative analysis 
rejecting Japan's argument that data co ncerning the sales, market share and production were 
relevant to determine that the domestic industry did not substantially reflect the total domestic 
production. As a result, Japan requests the Appellate Body to reverse the Panel's findings and 
conclusion s in paragraphs 7.158 -7.168 and 8.3(a) of the Panel Report and to find that India 
acted inconsistently with Article 4.1(c) of the Agreement on Safeguards in its determination 
of the domestic industry, and consequently also with Articles 2.1, 4.1(a), 4.1(b) , 4.2(a) 
and 4.2(b) of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994.  
3. The Panel erred in its application of the standard of review pursuant to Article 11 of the DSU 
when assessing Japan's claim that India failed to determine serious inj ury as required by 
Articles 4.1(a) and 4.2(a) of the Agreement on Safeguards because it failed to provide a 
reasoned and adequate explanation concerning the effect of the decline in the domestic 
industry's market share on the situation of the domestic indu stry and a reasoned and adequate 
explanation of the finding of serious injury given the positive trends in certain injury factors.4 
Japan submits that the Panel erroneously made the analysis for the Indian authority. Japan 
submits that the Panel also erred  in its application of Articles 4.1(a) and 4.2(a) of the 
Agreement on Safeguards when it found that the Indian authority's explanation with regard 
to the market share and to the overall situation of the domestic industry was reasoned and 
adequate. As a res ult, Japan requests the Appellate Body to reverse the Panel's findings and 
conclusions in paragraphs 7.179 -7.193 and 7.207 -7.215 of the Panel Report and to find that 
India acted inconsistently with Articles 4.1(a) and 4.2(a) of the Agreement on Safeguards 
because it failed to provide a reasoned and adequate explanation concerning the effect of the 
domestic industry's market share on the situation of the domestic industry and of the finding 
of serious injury given the positive trends in certain injury factor s. 
4. The Panel erred in its application of Articles 12.1(a), (b) and (c) of the Agreement on 
Safeguards when finding that Japan has failed to demonstrate that India acted inconsistently 
with those provisions by failing to notify the Committee on Safeguards "immediately " of the 
initiation of a safeguard investigation relating to serious injury or threat thereof, the findings 
of serious injury in the investigation and the decision to apply a definitive safeguard measure.5 
In particular, the Panel erred when applying the requirement that the notifications take place 
"immediately " to the facts of the case. As a result, Japan requests the Appellate Body to 
reverse the Panel's findings and conclusions in paragraphs 7.318 -7.340  and 8.3(b) of the 
Panel Report and to find that India acted inconsistently with Articles 12.1(a), (b) and (c) of 
the Agreement on Safeguards by failing to immediately notify the Committee on Safeguards 
of the initiation of the safeguard investigation, the  findings of serious injury in the investigation 
and the decision to apply a definitive safeguard measure.  
5. The Panel erred in its interpretation and application of Article 12.2 of the Agreement on 
Safeguards when finding that Japan has failed to demonstrat e that India acted inconsistently 
with that provision by failing to identify the proposed date of introduction of the proposed 
measure.6 The Panel erroneously interpreted the words "proposed date of introduction " in 
Article 12.2 and, in particular, erred w hen finding that the "proposed date of introduction " to 
which Article 12.1 refers "may be expressed with reference to the act or event that must occur 
for the measure to enter into effect "7. Consequently, the Panel also erred in finding that, by 
referring in its notification to the date of issuance of the notification by the Department of 
Revenue of India's Ministry of Finance, India did not fail to provide the Committee on 
Safeguards with a proposed date of introduction of the propo sed measure. As a result , 
                                                
3 Panel Report, paras. 7.158 -.7.168 and 8.3(a).  
4 Panel Report, paras. 7.179 -7.193 and 7.207 -7.215.  
5 Panel Report, paras. 7.318 -7.340 and 8.3(b).  
6 Panel Report, paras. 7.376 -7.381 and 8.3(b).  
7 Panel Report, para. 7.379.  WT/DS518/9  
 
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  Japan  requests the Appellate Body to reverse the Panel's findings and conclusions in 
paragraphs 7.376 -7.381 and 8.3(b) of the Panel Report and to find that India acted 
inconsistently with Article 12.2 of the Agreement on Safeguards by failing to provide the 
Committee on Safeguards with the proposed date of introduction of the proposed measure.  
6. The Panel erred in its interpretation and application of Article 19.1 of the DSU in making 
conditional recommendations.8 More specifically, the Panel e rred in recom mending that 
India brings its measure into conformity with obligations under the GATT 1994 and the 
Agreement on Safeguards "to the extent that the measure continues to have any effects. " 
Article 19.1 of the DSU, when interpreted on the basis of its ordinar y meaning and in light of 
its context, requires the Panel to make unconditional reco mmendations. As a result, 
Japan  requests the Appellate Body to reverse the Panel's findings and conclusi ons in 
paragraphs 7.26 -7.26 and  8.6 of the Panel Report and to make unconditional 
recommendations, namely that to recommend that India brings its measure into conformity 
with the covered agreements without any condition.  
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8 Panel Report, paras. 7.26 -7.28 and 8.6.