WT/DS518/R  
 
6 November  2018 
(18-6912) Page: 1/105 
  Original: English  
 
  
INDIA – CERTAIN MEAS URES ON IMPORTS  
OF IRON AND STEEL PR ODUCTS  
 
REPORT OF THE PANEL  
 WT/DS518/ R 
 
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  TABLE OF CONTENTS  
1   INTRODUCTION  ................................ ................................ ................................ ...... 14 
1.1   Complaint by Japan  ................................ ................................ ................................ .. 14 
1.2   Panel establishment and composition  ................................ ................................ ..........  14 
1.3   Panel proceedings  ................................ ................................ ................................ ..... 14 
2   MEASURE AT ISSUE  AND OTHER FACTUAL A SPECTS  ................................ ................  15 
3   PARTIES'  REQUEST S FOR FINDINGS AND R ECOMMENDATIONS  ..............................  15 
4   ARGUMENTS OF THE  PARTIES  ................................ ................................ .................  17 
5   ARGUMENTS OF THE  THIRD PARTIES  ................................ ................................ ...... 17 
6   INTERIM REVIEW  ................................ ................................ ................................ .... 17 
7   FINDINGS  ................................ ................................ ................................ ...............  17 
7.1   Introduction  ................................ ................................ ................................ .............  17 
7.2   General principles regarding standar d of review, treaty interpretation, and burden of proof   ..... 17 
7.2.1    Standard of review ................................ ................................ ................................ . 17 
7.2.2    Treaty interpretation  ................................ ................................ ..............................  19 
7.2.3    Burden of proof  ................................ ................................ ................................ ..... 19 
7.3   Whether the Panel should make findings despite the expiry of the measure at issue  .........  20 
7.3.1    Introduction  ................................ ................................ ................................ ..........  20 
7.3.2    Evaluation by the Panel  ................................ ................................ ..........................  21 
7.4   Whether Article  XIX of the GATT 1994 and the Agreement on Safeguards are applicable to 
the prese nt dispute  ................................ ................................ ................................ ..........  24 
7.4.1    Introduction  ................................ ................................ ................................ ..........  24 
7.4.2    Whether the measure at issue constitutes an ordinary customs duty  ............................  25 
7.4.3    Whether th e measure at issue resulted in the suspension of a GATT obligation  ..............  27 
7.4.3.1    Article  II:1(b) of the GATT 1994  ................................ ................................ ...........  28 
7.4.3.2    Article  I:1 of the GATT 1994  ................................ ................................ .................  29 
7.4.3.3    Article  XXIV of the GATT 1994  ................................ ................................ ..............  31 
7.4.4    Conclusion  ................................ ................................ ................................ ............  34 
7.5   Whether India acted inconsistently with Article  XIX:1(a) of the GATT  1994 with respect to 
the existence of "unforeseen developments" and the effect of GATT  obligations  .......................  34 
7.5.1    Introduction  ................................ ................................ ................................ ..........  34 
7.5.2    The Indian competent authority's  determination  ................................ ........................  35 
7.5.3    Article  XIX:1(a) of the GATT 1994  ................................ ................................ ...........  36 
7.5.4    The existence of unforeseen developments  ................................ ...............................  37 
7.5.5    Logical connection between unforeseen  developments and the increased imports  ..........  39 
7.5.6    Effect of the obligations incurred under the GATT 1994  ................................ ..............  43 
7.5.7    Conclusion  ................................ ................................ ................................ ............  44 
7.6   Whether India acted inconsistently with Articles  2.1 and 4.2(a) of the Agreement on 
Safeguards and Article  XIX:1(a) of the GATT  1994 with respect to the  increase in imports  ........  45 
7.6.1    Introduction  ................................ ................................ ................................ ..........  45 
7.6.2    The Indian competent authority's  determination on increased imports  ..........................  45 WT/DS518/ R 
 
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  7.6.3    Articles  2.1 and 4.2(a) of  the Agreement on Safeguards  ................................ .............  46 
7.6.4    Evaluation by the Panel  ................................ ................................ ..........................  47 
7.6.5    Conclusion  ................................ ................................ ................................ ............  51 
7.7   Whether India acted inconsistently with Articles  2.1, 4.1(a), 4.1(b), 4.1(c), 4.2(a), and 
4.2(b) of the Agreement on Safeguards and Article  XIX:1(a) of the GATT  1994 with respect to its 
determination of the domestic industry  ................................ ................................ ...............  51 
7.7.1    Introduction  ................................ ................................ ................................ ..........  51 
7.7.2    Article  4.1(c) of the Agreement on Safeguards  ................................ ..........................  51 
7.7.3    Evaluation by the Panel  ................................ ................................ ..........................  52 
7.8   Whether India acted inconsistently with Articles  2.1, 4.1(a), 4.1(b), and 4.2(a) of the 
Agreement on Safeguards and Article  XIX:1(a) of the GATT  1994 with respect to its 
determination of serious injury and threat of serious injury  ................................ ...................  55 
7.8.1    Introduction  ................................ ................................ ................................ ..........  55 
7.8.2    The Indian competent authority's  determination regarding serious injury and threat 
thereof  ................................ ................................ ................................ ...........................  55 
7.8.3    Serious Injury  ................................ ................................ ................................ ....... 56 
7.8.3.1    Articles  4.1(a) and 4.2( a) of the Agreement on Safeguards  ................................ ...... 56 
7.8.3.2    Whether the Indian competent authority evaluated relevant injury factors consistently 
with Articles  4.1(a) and 4.2(a)  ................................ ................................ ...........................  57 
7.8.3.2.1    The share of the domestic market taken by increased imports  ...............................  57 
7.8.3.2.2    Profits and losses  ................................ ................................ .............................  60 
7.8.3.2.3    Evaluation of injury factors showing stable or positive trends  ................................ . 63 
7.8.3.2.4    Conclusion  ................................ ................................ ................................ ...... 65 
7.8.3.3    Whether the Indian competent authority failed to base its serious injury determination 
on objective data  ................................ ................................ ................................ .............  65 
7.8.4    Threat of serious injury  ................................ ................................ ..........................  66 
7.8.5    Consequential claim under Article  2.1 of the Agreement on Safeguards  and 
Article  XIX:1(a) of the GATT 1994  ................................ ................................ ......................  69 
7.9   Whether India acted inconsistently with Articles  2.1, 4.2(a) and 4.2(b) of the Agreement on 
Safeguards and Article  XIX:1(a) of the GATT  1994 with respect to its determination of the causal 
link between the increase in imports and serious injury  ................................ ........................  69 
7.9.1    Introduction  ................................ ................................ ................................ ..........  69 
7.9.2    Article  4.2(b) of the Agreement on Safeguards  ................................ ..........................  69 
7.9.3    Causal link analysis  ................................ ................................ ................................  71 
7.9.4    Non-attribution analysis ................................ ................................ ..........................  75 
7.9.4.1    Introduction and general considerations relevant to Japan's  claims on non -attribution 
analysis  ................................ ................................ ................................ ..........................  75 
7.9.4.2    The captive sales of domestic industry and sales of producers outside the domestic 
industry  ................................ ................................ ................................ ..........................  77 
7.9.4.3    The domestic industry's  own internal factors  ................................ ..........................  78 
7.9.4.4    Other factors causing the decline in profitability  ................................ ......................  79 
7.9.4.5    Conclusion  ................................ ................................ ................................ .........  80 
7.9.5    Consequential claims  ................................ ................................ ..............................  80 
7.10   Whether India acted inconsistently with Articles  5.1 and 7.1 of the Agreement on 
Safeguards and Article  XIX:1(a) of the GATT 1994  ................................ ...............................  80 WT/DS518/ R 
 
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  7.11   Whether India acted inconsistently with Articles  3.1 and 4.2(c) of the Agreement on 
Safeguards  ................................ ................................ ................................ ......................  81 
7.12   Whether  India acted inconsistently with Article  11.1(a) of the Agreement on Safeguards  ........  82 
7.13   Whether India acted inconsistently with Article  12 of the Agreement on Safeguards in 
notifying its measure and providing opportunities for consultation s ................................ ........  83 
7.13.1    Japan's  claim under Article  12.4 of the Agreement on Safeguards  ..............................  83 
7.13.1.1    Introduction  ................................ ................................ ................................ ..... 83 
7.13.1.2    Evaluation by  the Panel  ................................ ................................ ......................  84 
7.13.1.3    Conclusion  ................................ ................................ ................................ ....... 84 
7.13.2    Japan's  claim under Article  12.1 of the Agreement on Safeguards  ..............................  84 
7.13.2.1    Introdu ction ................................ ................................ ................................ ..... 84 
7.13.2.2    Evaluation by the Panel  ................................ ................................ ......................  86 
7.13.2.2.1    Japan's  claim under Article  12.1(a)  ................................ ................................ ... 87 
7.13.2.2.2    Japan's  claim under Article  12.1(b)  ................................ ................................ ... 88 
7.13.2.2.3    Japan's  claim under Article  12.1(c)  ................................ ................................ ... 89 
7.13.2.3    Conclusion  ................................ ................................ ................................ ....... 90 
7.13.3    Japan's  claim under Article  12.2 of the Agreement on Safeguards  ..............................  90 
7.13.3.1    Introduction  ................................ ................................ ................................ ..... 90 
7.13.3.2   Evaluation by the Panel  ................................ ................................ ......................  92 
7.13.3.3    Conclusion  ................................ ................................ ................................ ....... 96 
7.13.4     Japan's  claim under Article  12.3 of the Agreement on Safeguards and Article  XIX:2 of 
the GATT  1994 ................................ ................................ ................................ ................  97 
7.13.4.1    Introduction  ................................ ................................ ................................ ..... 97 
7.13.4.2    Evaluation by the Panel  ................................ ................................ ......................  98 
7.13.4.3    Conclusion  ................................ ................................ ................................ ....... 98 
7.14   Whether India acted inconsistently with Article  II:1(b) of the GATT 1994  .......................  98 
7.14.1    Introduction  ................................ ................................ ................................ ........  98 
7.14.2    Article  II:1(b) of the GATT 1994  ................................ ................................ ............  99 
7.14.3    Evaluation by the Panel  ................................ ................................ ........................  99 
7.14.4    Conclusion  ................................ ................................ ................................ ........  101 
7.15   Whether India acted inconsistently with Article  I:1 of the GATT 1994  ..........................  101 
7.15.1    Introduction  ................................ ................................ ................................ ...... 101 
7.15.2    Article  I:1 of the GATT 1994  ................................ ................................ ................  101 
7.15.3    Evaluation by the Panel  ................................ ................................ ......................  101 
7.15.4    Conclusion  ................................ ................................ ................................ ........  103 
7.16   Special and differential treatment  ................................ ................................ ...........  103 
8   CONCLUSIONS AND RECOMMENDATION  ................................ ...............................  104  
8.1   Conclusions  ................................ ................................ ................................ ...........  104 
8.2   Recommendation  ................................ ................................ ................................ .... 105 
 
 WT/DS518/ R 
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES O F THE PANEL AND INTE RIM REVIEW  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Interim Review  9 
ANNEX B  
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 First i ntegrated executive summary of the arguments of Japan  21 
Annex  B-2 Second i ntegrated executive summary of the arguments of Japan  31 
Annex B -3 First i ntegrated executive summary of the arguments of India 41 
Annex B -4 Second i ntegrated executive summary of the arguments of India 53 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated execut ive summary of the arguments of Australia  65 
Annex  C-2 Integrated executive summary of the arguments of the European Union  68 
Annex  C-3 Integrated executive summary of the arguments of the Separate Customs 
Territory of Taiwan, Penghu, Kinmen , and Matsu  70 
Annex C -4 Integrated executive summary of the arguments of Ukraine  72 
Annex C -5 Integrated execut ive summary of the arguments of the United  States  73 
 
 WT/DS518/ R 
 
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  CASES CITED IN THIS REPORT  
Short title  Full case title and citation  
Argentina – Footwear (EC)  Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R , adopted 12 January 2000, DSR 2000:I, p. 515 
Argentina – Footwear (EC)  Panel Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/R , adopted 12 January 2000, as modified by Appellate Body 
Report WT/D S121/AB/R, DSR 2000:II, p. 575 
Argentina – Poultry 
Anti-Dumping Duties  Panel Report, Argentina – Definitive Anti -Dumping Duties on Poultry from 
Brazil , WT/DS241/R , adopted 19 May 2003, DSR 2003:V, p. 1727 
Argentina – Preserved 
Peaches  Panel Report, Argentina – Definitive Safeguard Measure on Imports of 
Preserved Peaches , WT/DS238/R , adopted 15 April 2003, DSR 2003:III, 
p. 1037 
Argentina – Textiles and 
Apparel  Panel Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/R , adopted 22 April 1998, as 
modified by Appellate Body Report WT/DS56/AB/R, DSR 1998:III, p. 1033 
Australia – Salmon  Panel Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/R  and Corr.1, adopted 6 November 1998, as modified by 
Appellate Body Report WT/DS18/AB/R, DSR 199 8:VIII, p. 3407 
Canada – Continued 
Suspension  Panel Report, Canada – Continued Suspension of Obligations in the EC – 
Hormones Dispute , WT/DS321/R  and Add.1 to Add.7, adopted 
14 November 2008, as modified by Appel late Body Report 
WT/DS321/AB/R, DSR 2008:XV, p. 5757 
Canada – Renewable Energy / 
Canada – Feed-in Tariff 
Program  Appellate Body Reports, Canada – Certain Measures Affecting the 
Renewable Energy Generation Sector / Canada – Measures Relating to the 
Feed-in Tariff Program , WT/DS412/AB/R  / WT/DS426/AB/R , adopted 
24 May 2013, DSR 2013:I, p. 7 
Chile – Price Band System  Panel Report, Chile – Price Band System and Safeguard Measures Relating 
to Certain Agricultural Products , WT/DS207/R , adopted 23 October 2002, 
as modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, 
p. 3127 
China – Auto Parts  Appellate Body Reports, China – Measures Affecting Imports of Automobile 
Parts, WT/DS339/AB/R  / WT/DS340/AB/R  / WT/DS342/AB/R , adopted 
12 January 2009, DSR 2009:I, p. 3 
China – Autos (US)  Panel Report, China – Anti-Dumping and Countervailing Duties on Certain 
Automobiles from the United  States , WT/DS440/R  and Add.1, adopted 
18 June 2014, DSR 2014:VII, p. 2655 
China – Broiler Products  Panel Report, China  Anti-Dumping and Countervailing Duty Measures on 
Broiler Products from the United  States , WT/DS427/R  and Add.1, adopted 
25 September 2013, DSR 2013:IV, p. 1041 
China – Cellulose Pulp  Panel Report, China – Anti-Dumping Measures on Imports of Cellulose Pulp 
from Canada , WT/DS483/R  and Add.1, adopted 22 May 2017  
China – Electronic Payment 
Services  Panel Report, China – Certain Measures Affecting Electronic Payment 
Services , WT/DS413/R  and Add.1, adopted 31 August 2012, DSR 2012:X, 
p. 5305 
China – Publications and 
Audiovisual Products  Panel Report, China – Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertai nment Products , 
WT/DS363/R  and Corr.1, adopted 19 January 2010, as modified  by 
Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261 
China – Raw Materials  Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / 
WT/DS398/AB/R , adopted 22 February 2012, DSR 2012:VII, p. 3295 
China – X-Ray Equipment  Panel Report,  China – Definitive Anti -Dumping Duties on X -Ray Security 
Inspection Equipment from the European Union , WT/DS425/R  and Add.1, 
adopted 24 April 2013, DSR 2 013:III, p. 659 
Dominican Republic – Import 
and Sale of Cigarettes  Panel Report, Dominican Republic – Measures Affecting the Importation 
and Internal Sale of Cigarettes , WT/DS302/R , adopted 19 May 2005, as 
modified by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, 
p. 7425 WT/DS518/ R 
 
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  Short title  Full case title and citation  
Dominican Republic – 
Safeguard Measures  Panel Report, Dominican Republic – Safeguard Measures on Imports of 
Polypropylene Bags and Tubular Fabric , WT/DS415/R , WT/DS416/R , 
WT/DS417/R , WT/DS418/R , and Add.1, adopted 22 February 2012, 
DSR 2012:XIII, p. 6775 
EC – Approval and Marketing 
of Biotech Products  Panel Reports, European Communities – Measures Affecting the Approval 
and Marketing of Biotech Products , WT/DS291/R , Add.1 to Add.9 and 
Corr.1 / WT/DS292/R , Add.1 to Add.9 and Corr.1 / WT/DS293/R , Add.1 to 
Add.9 and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847 
EC – Bananas III  Appellate Body Report, European Communities  – Regime for the 
Importation, Sale and Distribution of Bananas , WT/DS27/A B/R, adopted 
25 September 1997, DSR 1997:II, p. 591 
EC – Bananas III  
(Article  21.5 – Ecuador II) /  
EC – Bananas III  
(Article  21.5 – US) Appellate Body Reports, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Second Recourse to 
Article  21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU , adopted 
11 December 2008, and Corr.1 / European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Article  21.5 of 
the DSU b y the United  States , WT/DS27/AB/RW/USA  and Corr.1, adopted 
22 Decemb er 2008, DSR 2008:XVIII, p. 7165 
EC – Chicken Cuts  Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R , WT/DS286/AB/R , adopted 
27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157 
EC – Fasteners (China)  Appellate Body Report, European  Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28 July 2011, DSR 2011:VII, p. 3995 
EC – Fasteners (China) 
(Article  21.5 – China)  Appellate Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China – Recourse to 
Article  21.5 of the DSU by China , WT/DS397/AB/RW  and Add.1 , adopted 
12 February 2016, DSR 2016:I, p. 7 
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 13 February 1998, 
DSR 1998:I, p. 135 
EC – IT Products  Panel Reports, European Communities and its member States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R  / 
WT/DS376/R  / WT/DS377/R , adopted 21 September 2010, DSR 2010:III, 
p. 933 
EC – Salmon ( Norway)  Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R , adopted 15 January 2008, and Corr.1, 
DSR 2008:I, p. 3 
EC – Seal Products  Appellate Body Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18 June 2014, DSR 2014:I, p. 7 
EU – Energy Package  Panel Report, European Union and its member States – Certain Measures 
Relating to the Energy Sector , WT/DS476/R  and Add.1, circulated to 
WTO Members 10  August  2018 [appealed by t he European Union 
21 September 2018 ] 
EU – Fatty Alcohols 
(Indonesia)  Appellate Body Report, European Union – Anti-Dumping Measures on 
Imports of Certain Fatty Alcohols from Indonesia , WT/DS442/AB/R  and 
Add.1, adopted 29 September 2017  
EU – PET (Pakistan)  Appellate Body Report, European Union – Countervailing Measures on 
Certain Polyethylene Terephthalate  from Pakistan , WT/DS486/AB/R  and 
Add.1, adopted 28 May 2018  
EU – PET (Pakistan)  Panel Report, European Union – Countervailing Measures on Certain 
Polyethylene Terephthalate  from Pakistan , WT/DS486/R , Add.1 and Corr.1, 
adopted 28 May 2018, as modified by Appellate B ody Report 
WT/DS486/AB/R  
Guatemala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 
25 November  1998, DSR 1998:IX, p. 3767 WT/DS518/ R 
 
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  Short title  Full case title and citation  
India – Additional Import 
Duties  Panel Report, India – Additional and Extra -Additional Duties on Imports 
from the United  States , WT/DS360/R , adopted 17 November 2008, as 
reversed by Appellat e Body Report WT/DS360/AB/R, DSR 2008:XX, 
p. 8317 
India – Agricultural Products  Panel Report, India – Measures Concerning the Importation of Certain 
Agricultural Products , WT/DS430/R  and Add.1, adopted 19 June 2015, as 
modified by Appellate Body Report WT/DS430/AB/R , DSR 2015:V, p. 2663 
India – Autos  Panel Report, India – Measures Affecting the Automotive Sector , 
WT/DS146/R , WT/DS175/R , and Co rr.1, adopted 5 April 2002, 
DSR 2002:V, p. 1827 
India – Quantitative 
Restrictions  Panel Report, India – Quantitative Restrictions on Imports of Agricultural, 
Textile and Industrial Products , WT/DS90/R , adopted 22 September 1999, 
upheld by Appellate Body Report WT/DS 90/AB/R, DSR 1999:V, p. 1799 
Indonesia – Autos  Panel Report, Indonesia – Certain Measures Affecting the Automobile 
Industry , WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1  and 
Corr.2, adopted 23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, 
p. 2201 
Indonesia – Iron or Steel 
Products  Appellate Body Report, Indonesia – Safeguard on Certain Iron or Steel 
Products , WT/DS490/AB/R , WT/DS496/AB/R , and Add.1,  adopted 
27 August 2018  
Indonesia – Iron or Steel 
Products  Panel Report, Indonesia – Safeguard on Certain  Iron or Steel Products , 
WT/DS490/R , WT/DS496/R , and Add.1, adopted 27 August 2018, as 
modified by Appellate Body Report WT/DS490/AB/R, WT/DS496/AB/R  
Japan – Alcoholic Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R , WT/DS10/AB/R , WT/DS11/AB/R , adopted 
1 November  1996, DSR 1996:I, p. 97 
Japan – Alcoholic Beverages II  Panel Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/R , 
WT/DS10/R , WT/DS11/R , adopted 1 November 1996, as modified by 
Appellate Body Report WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 
DSR 1996:I, p. 125 
Japan – Apples ( Article  21.5 – 
US) Panel Report, Japan – Measures Affecting the Importation of Apples – 
Recourse to Article  21.5 of the DSU by the United  States , WT/DS245/RW , 
adopted 20 July 2005, DSR 2005:XVI, p. 7911 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports 
of Certain Dairy Products , WT/DS98/AB/R , adopted 12 January 2000, 
DSR 2000:I, p. 3 
Korea – Dairy Panel  Report, Korea – Definitive Safeguard Measure on Imports of Certain 
Dairy Products , WT/DS98/R  and Corr.1, adopted 12 January 2000, as 
modified by Appellate Body Report WT/DS98/AB/R, DSR 2000:I, p. 49 
Mexico – Corn Syrup 
(Article  21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United  States  – Recourse to 
Article  21.5 of the DSU  by the United  States , WT/DS132/AB/RW , adopted 
21 November 2001, DSR 2001:XIII, p. 6675 
Mexico – Taxes on Soft Drinks  Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other 
Beverages , WT/DS308/AB/R , adopted 24 March 2006, DSR 2006:I, p. 3 
Russia – Commercial  Vehicles  Appellate Body Report,  Russia – Anti-Dumping Duties on Light Commercial 
Vehicles from Germany and Italy , WT/DS479/AB/R  and Add.1, adopted 
9 April 2018  
Russia – Commercial Vehicles  Panel Report, Russia – Anti-Dumping Duties on Light Commercial Vehicles 
from Germany and Italy , WT/DS479/R  and Add.1, adopted 9 April 2018, as 
modified by Appellate Body Report WT/DS479/AB/R  
Russia – Pigs (EU)  Panel Report, Russian Federation – Measures on the Importation of Live 
Pigs, Pork and Other Pig Products from the European Union , WT/DS475/R  
and Add.1, adopted 21 March 2017, as modified by Appellate Body Report 
WT/DS475/AB/R  
Thailand – Cigarettes 
(Philippines)  Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from 
the Philippines , WT/DS371/R , adopted 15 July 2011, as modified by 
Appellate Body Report WT/DS371/AB/R , DSR 2011:IV, p. 2299 WT/DS518/ R 
 
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  Short title  Full case title and citation  
Thailand – H-Beams  Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non -Alloy Steel and H -Beams from Poland , 
WT/DS122/R , adopted 5 April 2001, as modified by Appellate Body Report 
WT/DS12 2/AB/R, DSR 2001:VII, p. 2741 
Turkey – Textiles  Appellate Body Report, Turkey – Restrictions on Imports of Textile and 
Clothing Products , WT/DS34/AB/R , adopted 19 November 1999, 
DSR 1999:VI, p. 2345 
Ukraine – Passenger Cars  Panel Report, Ukraine – Definitive Safeguard Measures on Certain 
Passenger Cars , WT/DS468/R  and A dd.1, adopted 20 July 2015, 
DSR 2015:VI, p. 3117 
US – 1916 Act Appellate Body Report, United  States  – Anti-Dumping Act of 1916 , 
WT/D S136/AB/R , WT/DS162/AB/R , adopted 26 September 2000, 
DSR 2000:X, p. 4793 
US – Carbon Steel  Appellate Body Report, United  States  – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R  and Corr.1, adopted 19  December 2002, DSR 2002:IX, 
p. 3779 
US – Certain EC Products  Appellate Body Report, United  States  – Import Measures on Certain 
Products from the European Communities , WT/DS165/AB/R , adopted 
10 January  2001, DSR 2001:I, p. 373 
US – Continued Suspension  Panel Report, United  States  – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS320/R  and Add.1 to Add.7, adopted 
14 November 2008, as modified by Appellate Body Report 
WT/DS320/AB/R, DSR 2008:XI, p. 3891 
US – Corrosion -Resistant Steel 
Sunset Review  Appellate Body Report, United  States  – Sunset Review of Anti -Dumping 
Duties on Corrosion -Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R , adopted 9 January 2004, DSR 2004:I, p. 3 
US – Cotton Yarn  Appellate Body Report, United  States  – Transitional Safeguard Measure on 
Combed Cotton Yarn from Pakistan , WT/DS192/AB/R , adopted 
5 November 2001, DSR 2001:XII, p. 6027 
US – Counter vailing Measures 
(China)  Appellate Body Report, United  States  – Countervailing Duty Measures on 
Certain Products from China , WT/DS437/AB/R , adopted 16 January 2015, 
DSR 2015:1, p. 7 
US – FSC ( Article  21.5 – EC) Appellate Body Report, United  States  – Tax Treatment for "Foreign Sales 
Corporations" – Recourse to Article  21.5 of t he DSU by the European 
Communities , WT/DS108/AB/RW , adopted 29 January 2 002, DSR 2002:I, 
p. 55 
US – Gasoline  Appellate Body Report, United  States  – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R , adopted 20 May 1996, DSR 1996:I, 
p. 3 
US – Gasoline  Panel Repor t, United  States  – Standards for Reformulated and 
Conventional Gasoline , WT/DS 2/R, adopted 20 May 1996, as modified by 
Appellate Body Report WT/DS2/AB/R, DSR 1996:I, p. 29 
US – Hot-Rolled Steel  Appellate Body Report, United  States  – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R , adopted 
23 August  2001, DSR 2001:X, p. 4697 
US – Lamb  Appel late Body Report, United  States  – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R , WT/DS178/AB/R , adopted 16 May 2001, DSR 2001:IX, 
p. 4051 
US – Lamb  Panel Report, United  States  – Safeguard Measures on Imports of Fresh, 
Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/R , WT/DS178/R , adopted 16 May 2001, as modified by 
Appellate Body Report WT/DS177 /AB/R, WT/DS178/AB/R, DSR 2001:IX, 
p. 4107 
US – Large Civil Aircraft 
(2nd complaint)  Appellate Body Report, United  States  – Measures Affecting Trade in Large 
Civil Aircraft (Second Complaint) , WT/DS353/AB/R , adopted 
23 March  2012, DSR 2012:I, p. 7 
US – Large Civil Aircraft 
(2nd complaint)  Panel Report, United  States  – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/D S353/R , adopted 23 March 2012, as 
modified by Appellate Body Report WT/DS353/AB/R, DSR 2012:II, p. 649 WT/DS518/ R 
 
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  Short title  Full case title and citation  
US – Line Pipe  Appellate Body Report, United  States  – Definitive Safeguard Measures on 
Imports of Circular Welded Carbon Quality Line Pipe from Korea , 
WT/DS202/AB/R , adopted 8 March 2002, DSR 2002:IV, p. 1403 
US – Line Pipe  Panel Report, United  States  – Definitive Safeguard Measures on Imports of 
Circular Welded Carbon Quality Line Pipe from Korea , WT/DS202/R , 
adopted 8 March 2002, as modified by Appellat e Body Report 
WT/DS202/AB/, DSR  2002:IV, p. 1473 
US – Offset Act 
(Byrd  Amendment)  Appellate Body Report, United  States  – Continued Dumping and Subsidy 
Offset Act of 2000 , WT/DS217/AB/R , WT/DS234/AB/R , adopted 
27 January  2003, DSR 2003:I, p. 375 
US – Poultry (Chin a) Panel Report, United  States  – Certain Measures Affecting Imports of 
Poultry from China , WT/DS392/R , adopted 25 October 2010, DSR 2010:V, 
p. 1909 
US – Softwood Lumber  IV Appellate Body Report, United  States  – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada , 
WT/DS257/AB/R , adopted 17 February 2004, DSR 2004:II, p. 571 
US – Steel Safeguards  Appellate Body Report, United  States  – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R , WT/DS249/AB/R , 
WT/DS251/AB/R , WT/DS252/AB/R , WT/DS253/AB/R , WT/DS254/AB/R , 
WT/DS258/AB/R , WT/DS259/AB/R , adopted 10 December 2003, 
DSR 2003:VII, p. 3117 
US – Steel Safeguards  Panel Reports, United  States  – Definitive Safeguard Measures on Imports 
of Certain Steel Products , WT/DS248/R  and Corr.1 / WT/DS249/R  and 
Corr.1 / WT/DS251/R  and Corr.1 / WT/DS252/R  and Corr.1 / WT/DS253/R  
and Corr.1 / WT/DS254/R  and Corr.1 / WT/DS258/R  and Corr.1 / 
WT/DS259/R  and Corr.1, adopted 10 December 2003, as modified by 
Appellate Body Report WT/DS248/AB/R, WT/DS249/AB/R, 
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, 
WT/DS258/AB/R, WT/DS259/AB/R, DSR 2003:VIII, p. 3273 
US – Tyres (China)  Appellate Body Report, United  States  – Measures Affecting Imports of 
Certain Passenger Vehicle and Light Truck Tyres from China , 
WT/DS399/AB/R , adopted 5 October 2011 , DSR 2011:IX, p. 4811 
US – Upland Cotton  Appellate Body Report, United  States  – Subsidies on Upland Cotton , 
WT/DS267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3 
US – Wheat Gluten  Appellate Body Report, United  States  – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , 
WT/DS166/AB/R , adopted 19 January 2001, DSR 2001:II, p. 717 
US – Wheat Gluten  Panel Report, United  States  – Definitive Safeguard Measures on Imports of 
Wheat Gluten from  the European Communities , WT/DS166/R , adopted 
19 January 2001, as modified by Appellate Body Report WT/DS166/AB/R, 
DSR 2001:III, p. 779 
US – Wool Shirts and Blouses  Appellate Body Report, United  States  – Measure Affecting Imports of 
Woven Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 
23 May 1997, and Corr.1, DSR 1997:I, p. 323 
 
 WT/DS518/ R 
 
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  EXHIB ITS REFERRED TO IN T HIS REPORT  
Exhibit  Short Title (if any)  Description  
JPN-1/IND -1 Customs Tariff Act  Customs Tariff Act, 1975 (51 of 1975), as amended 
(18 August  1975)  
JPN-2/IND -2 Safeguard Rules  Ministry of Finance (Department of Revenue), Notification 
No. 35/97 -NT-Customs, Customs Tariff (Identification and 
Assessment of Safeguard Duty) Rules, 1997, Gazette of India, 
Extraordinary, Part II, Section 3(i) (29 July 1997)  
JPN-3/IND -3 Notification 
No. 19/2016 -Customs 
(5 February 2016)  Ministry  of Finance (Department of Revenue), Notification 
No. 19/2016 -Customs (N.T.), superseding Notification 
No. 103/98 -Customs, 14 December 1998, Gazette of India, 
Extraordinary, Part II, Section 3(i) (5 February 2016)  
JPN-4/IND -4 Notice of Initiation  Directorate General of Safeguards Customs and Central Excise, 
Notice of Initiation of a Safeguard Investigation concerning 
imports of hot -rolled flat products of non -alloy and other alloy 
steel in coils of a width of 600 mm or more, Gazette of India, 
Extra ordinary, Part II, Section 3(i) (7 September 2015)  
JPN-5/IND -5 Application  Petition for the initiation of safeguard investigation and 
imposition of safeguard duty on imports of hot -rolled flat 
products of alloy or non -alloy steel in coils (27 July 2015)  
JPN-6/IND -20 Revised Application  Petition for the initiation of safeguard investigation and 
imposition of safeguard duty on imports of hot -rolled flat 
products of alloy or non -alloy steel in coils (24 August 2015)  
JPN-7/IND -7 Preliminary Findings  Ministry of Finance, Director General (Safeguards), 
Notification, Safeguard investigation concerning imports of 
hot-rolled flat products of non -alloy and other alloy Steel in 
coils of a width of 600 mm or more into India, Preliminary 
Findings, Gazette of India,  Extraordinary, Part II, Section 3(i) 
(9 September 2015)  
JPN-8/IND -8 Notification imposing a 
provisional safeguard 
measure  Ministry of Finance (Department of Revenue), Notification 
No. 2/2015 -Customs (SG), Gazette of India, Extraordinary, 
Part II, Sectio n 3(i) (14 September 2015)  
JPN-9/IND -9 Notification 
under  Article  12.1(a) 
of the SA 
(15 September  2015)  WTO, Committee on Safeguards, Notification under 
Article  12.1(a) of the Agreement on Safeguards on initiation of 
an investigation and the reason for it: India (hot -rolled flat 
products of non -alloy and other alloy steel in coils of a width of 
600 mm or more), G/SG/N/6/IND/41 (15 September 2015)  
JPN-10/IND -10 Notification under 
Article  12.4 of the SA 
(28 September 2015)  WTO, Committee on Safeguards, No tification under 
Article  12.4 of the Agreement on Safeguards before taking a 
provisional safeguard measure referred to in Article  6, 
Notification pursuant to Article  9, footnote 2 of the Agreement 
on Safeguards: India (hot -rolled flat products of non -alloy and 
other alloy steel in coils of a width of 60 0 mm or more), 
G/SG/N/7/IND/10 -G/SG/N/11/IND/14 a nd 
G/SG/N/7/IND/10/Suppl.1 -G/SG/N/11/IND/14/Suppl.1 
(28 September 2015)  
JPN-11/IND -11 Final Findings  Ministry of Finance (Department of Revenue), Notificatio n, 
Safeguard investigation concerning imports of hot -rolled flat 
products of non -alloy and other alloy Steel in coils of a width of 
600 mm or more into India, Final Findings, Gazette of India, 
Extraordinary, Part II, Section 3(i) (15 March 2016)  
JPN-12/IND-12 Notification under 
Article  12.1(b) of the 
SA (21  March 2016)  WTO, Committee on Safeguards, Notification under 
Article  12.1(b) of the Agreement on Safeguards on finding a 
serious injury or threat thereof caused by increased imports, 
Notification of a proposal to impose a measure, Notification 
pursuant to Article  9, footnote 2 of the Agreement on 
Safeguards: India (hot -rolled flat products of non -alloy and 
other alloy steel in coils of a width of 60 0 mm or more), 
G/SG/N/8/IND/28 -G/SG/N/10/IND/19 -
G/SG/N/ 11/IND/14/Suppl.2 (21 March 2016)  WT/DS518/ R 
 
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  Exhibit  Short Title (if any)  Description  
JPN-13/IND -13 Notification imposing a 
definitive safeguard 
measure  Excerpt from Ministry of Finance (Department of Revenue), 
Notification No.  1/2016 -Customs (SG), Gazette of India, 
Extraordinary, Part II, Section 3(i ) (29 March 2016)  
JPN-14/IND -14 Notification under 
Article  12.1(b) and 
Article  12.1(c) of the 
SA (4  April 2016)  WTO, Committee on Safeguards, Notification under 
Article  12.1(b) of the Agree ment on Safeguards on finding 
a serious injury or threat there of caused by increased 
imports;  Notification pursuant to Article  12.1(c) of 
the Agreement on Safeguards; Notification pursuant to 
Article  9, footnote 2 of the Agreement on Safeguards: 
India Supplement  (hot-rolled  flat products of non -alloy 
and other alloy Ste el in coils of a width of 600 mm or 
more),  G/SG/N/8/IND/28/Suppl.1 -G/SG/N/10/IND/19/Suppl.1
-G/SG/N/11/IND/14/Suppl.3 (4  April 2016)  
JPN-17/IND -17 Notification 
No. 12/2012 -Customs 
(17 March 2012)  Ministry of Finance (Department of Revenue), Notification 
No. 12/2012 -Customs, Gazette of India, Extraordinary, Part  II, 
Section 3(i) (17 March 2012)  
JPN-18/IND -18 Notification 
No. 12/2014 -Customs 
(11 July 2014)  Ministry of Finance (Department of Revenue) Notification 
No. 12/2014 -Customs, Gazette of India, Extrao rdinary, Part  II, 
Section 3(i) (11 July 2014)  
JPN-19/IND -19 Notification 
No. 10/2015 -Customs 
(1 March 2015)  Ministry of Finance (Department of Revenue), Notification 
No. 10/2015 -Customs, Gazette of India, Extraordinary, Part  II, 
Section 3(i) (1 March 2015)  
JPN-20/IND -6 Notification 
No. 39/2015 -Customs 
(16 June 2015)  Ministry of Finance (Department of Revenue), Notification 
No. 39/2015 -Customs, Gazette of India, Extraordinary, Part  II, 
Section 3(i) (16 June 2015)  
JPN-21/IND -16 Notification 
No. 45/201 5-Customs 
(12 August 2015)  Ministry of Finance (Department of Revenue), Notification 
No. 45/2015 -Customs, Gazette of India, Extraordinary, Part  II, 
Section 3(i) (12 August 2015)  
JPN-26  Excerpt from The Customs Act, 1962, Section 28  
JPN-28  Excerpt from Schedule of Concessions XII – India 
(15 March  2000)  
IND-21  Excerpt from India 's Schedule of Concession s with respect to 
customs heading 7208  
 
 WT/DS518/ R 
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
API American Petroleum Institute  
CEPA Comprehensive Economic Partnership Agreement  
DSB Dispute Settlement Body  
DI domestic industry  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
FTA free trade agreement  
GATT 1994  General Agreement on Tariffs and Trade 1994  
Indian competent authority  Director General (Safeguards) of India 's Ministry of Finance  
INR Indian Rupees  
MFN most-favour ed nation  
MT metric tonne  
POI period of investigation  
Vienna Convention  Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 
1155 UNTS 331; 8 International Legal Materials 679  
WTO World Trade Organization  
 WT/DS518/ R 
 
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  1  INTRODUCTION  
1.1  Complaint by Japan  
1.1.  On 20 December 2016 , Japan  requested consultations with India pursuant to Articles  1 and 4 
of the Understanding on Rule s and Procedures Governing the Settlement of Disputes (DSU) , 
Article  XXII:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994 ), and Article  14 of 
the Agreement on Safeguards  with respect to certain measures imposed by India on imports of iron 
and steel products into Ind ia.1 
1.2.  Consultations were held on 6 and 7 February 2017  but failed to resolve the dispute .2 
1.2  Panel establishment and composition  
1.3.  On 9 March 2017 , Japan requested the establishment of a panel pursuant to Article  6 of 
the DSU, Article  XXII:1 of the GATT 1994 and Article  14 of the Agreement on Safeguards, with 
standard terms of reference.3 At its meeting on 3 April 2017 , the Dispute Settlement Body (DSB) 
established a panel pursuant to the request of Japan  in document WT/DS 518/5 , in accordance with 
Article  6 of the DSU.4 
1.4.  The Panel 's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Japan  in docu ment 
WT/DS 518/5  and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.5 
1.5.  On 12 June 2017 , Japan  requested the Director -General to determine the composition of the 
panel, purs uant to Article  8.7 of the DSU . On 22 June 2017 , the Director -General accordingly 
composed the Panel as follows:  
Chairperson:  Mr Alexander Hugh McPhail  
 
Members:   Ms Enie Neri de Ross  
   Ms Ana Teresa Caetano  
 
1.6.  Australia, China, the European Union, Indonesia, Kazakhstan, Korea, Oman, Qatar, the 
Russian  Federation (Russia) , Singapore, the Separate Customs Territory of Taiwan, Penghu, Kinmen 
and Matsu ( Chinese Taipei ), Ukraine, the United  States  and Viet Nam reserved their rights to 
participate in the Panel proceedings  as third parties.  
1.3  Panel proceedings  
1.7.  After consultation with the parties, the Panel adopted its Working Procedures6 and timetable 
on 10 October 2017 . 
1.8.  The Panel held a first substantive meeting wi th the parties on 31 January and 1  February  2018. 
A session with the third parties took place on 1 February 2018 . The Panel held a second substantive 
meeting with the parties on 1 and 2 May 2018 . On 3 July 2018 , the Panel issued the descriptive part 
of its Report to the parties. The Panel issued its Interim Report to the parties on 23 August 2018. 
The Panel issued its Final Report to the parties on 11 October  2018. 
                                                
1 Request for consultations by Japan, WT/DS518/1 -G/L/1172 -G/SG/D49/1 (Japan's  consultations 
request).  
2 Request for the establishment of a panel by Japan, WT/DS518/5 (Japan's  panel request).  
3 Japan's  panel request.  
4 DSB, Minutes of meeting held on 3  April 2017, WT/DSB/M/395, pp.  3-4. 
5 Constitution note of the Panel, WT/DS518/6 . 
6 See the Panel's  Working Procedures in Annex A -1. 
 WT/DS518/ R 
 
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  1.9.  In these panel proceedings, certain filings were made outside of the deadlines prescribed by 
the Working Procedures adopted by the Panel.7 The Panel stresses the importance of all parties and 
third parties adhering to the time  limits for filing documents, in the interests of fairness and the 
orderl y conduct of panel proceedings.  
2  MEASURE AT ISSUE A ND OTHER FACTUAL ASPECTS  
2.1.  This dispute concerns a safeguard measure  imposed by I ndia with regard to imports of 
hot-rolled flat products of non -alloy and other alloy steel in coils of a width of 600 mm or more  
(product concerned ). This measure was  imposed following a safeguard investigation initiated on  
7 September 2015 by the Director General (Safeguards) of India 's Ministry of Finance 
(Indian  competent authority) .8 
2.2.  On 9 September 2015, the Indian competent authority issued its Preliminary Finding s.9 On 
14 September 2015, the Ministry of Finance , after considering the Preliminary Findings,  imposed a 
provisional safeguard duty of 20% for 200 days.10 
2.3.  On 15 September 2015, India notified the WTO Committee on Safeguards, pursuant to 
Article  12.1(a) of t he Agreement on Safeguards, of the initiation of the safeguard investigation.11 
On 28 September 2015, India notified the Committee on Safeguards, pursuant to Article  12.4 and 
Article  9, footnote  2, of the application of the provisional safeguard measure.12 
2.4.  On 15 March 2016, the Indian competent authority issued its Final Findings.13 On 
29 March  2016, after considering the Final Findings, the Ministry of Finance imposed a definitive 
safeguard duty at the following rate (minus anti -dumping duties, if any):  20% from 
14 September  2015 to 13  September 2016;  18% from 14  September 2016 to 13 March  2017;  
15% from 14  March 2017 to 13 September  2017; and  10% from 14  September 2017 to 
13 March  2018.14 
2.5.  On 21 March 2016, India notified the Committee on Safeguards, pursuant to Article  12.1( b), 
of the findings of serious  injury or threat thereof caused by increased imports.15 On 4 April 2016, 
India notified the Committee on Safeguards, pursuant to Article  12.1( c), of its decision to impose a 
safeguard measure .16 
3  PARTIES ' REQUEST S FOR FINDINGS AND R ECOMMENDATIONS  
3.1.   Japan  requests that the Panel find that the measure at issue  is inconsistent with 
India's obligations under the Agreement on Safeguards and the GATT 1994 . Specifically, Japan 
requests the Panel to find that17: 
a. India acted inconsistently with Article  XIX:1(a) of the GATT 1994 because it failed t o 
demonstrate the existence of " unfore seen developments" and a "logical connection"  
between the unforeseen developments and the increase in imports causing or threatening 
to cause serious injury to the domestic industry;  
b. India acted inconsistently with Article  XIX:1(a) of the GATT 1994 becau se it failed to 
demonstrate a "logical connection"  between the effect of the obligations incurred under 
                                                
7 The Panel notes that India's  questions to third parties were received the next working day following 
the deadline specified by the Panel in accordance with paragraph 17(c) of the Panel's  Working Procedures . 
8 Notice of Initiation , (Exhibits  JPN-4/IND -4). 
9 Preliminary Findings , (Exhibit s JPN-7/IND-7). 
10 Notification imposing a provisional safeguard measure, (Exhibits  JPN-8/IND -8). 
11 Notification under Article  12.1(a) of the SA (15 September 2015 ), (Exhibits  JPN-9/IND -9). 
12 Notification under Article  12.4 of the SA (28 September  2015), (Exhibits  JPN-10/IND -10). 
13 Final Findings, (Exhibits JPN-11/IND -11). 
14 Notification imposing a definitive safeguard measure, (Exhibits  JPN-13/IND -13). 
15 Notificati on under Article  12.1(b) of t he SA (21 March 2016 ), (Exhibits  JPN-12/IND -12). 
16 Notification under Articles  12.1( b) and 12.1( c) of the SA (4 April 2016), (Exhibits  JPN-14/IND -14). 
17 Japan's  first written submission, para.  536; second written submission, para.  287. WT/DS518/ R 
 
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  the GATT 1994 and the increase in imports causing or threatening to cause serious injury 
to the domestic industry;  
c. India acted inconsistently with Articles  2.1, 3.1, 4.2(a) , and 4.2(c) of the Agreement on 
Safeguards and Article  XIX:1(a) of the GATT 1994 because it failed to determine th e 
increase in imports as required by those provisions;  
d. India acted inconsistently with Article  4.1(c) of the Agreement on Safeguards because it 
failed to determine the domes tic industry constituting a "major proportion"  of the total 
domestic production and , consequently, acted inconsistently with Articles  2.1, 4.1(a), 
4.1(b), 4.2(a) , and 4.2(b) of the Agreement on Safeguards and Article  XIX:1(a) of the 
GATT 1994 with respect to its determination of whether the alleged increased imports 
have caused or are th reatening to cause serious injury to the domestic industry;  
e. India acted inconsistently with Articles  2.1, 4.1(a), 4.1(b) , and 4.2(a) of the Agreement 
on Safeguards and Article  XIX:1(a) of the GATT 1994 because it failed to determine serious 
injury and thre at thereof as required by those provisions;  
f. India acted inconsistently with Articles  2.1, 4.2(a) , and 4.2(b) of the Agreement on 
Safeguards and Article  XIX:1(a) of the GATT 1994 because it failed to establish the 
existence of a causal link between the alle ged increased imports and the alleged serious 
injury and threat thereof to the domestic industry as well as failed to determine that the 
alleged serious injury and threat thereof caused by factors other than the increased 
imports was not attributed to incr eased imports;  
g. India acted inconsistently with Articles  5.1 and 7.1 of the Agreement on Safeguards and 
Article  XIX:1(a) of the GATT 1994 because it failed to impose the safeguard measures only 
to the extent and for such time as necessary to prevent or reme dy serious injury;  
h. India acted inconsistently with Articles  3.1 and 4.2(c) of the Agreement on Safeguards 
because it failed to provide in the Preliminary Findings and the Final Findings, i.e. the 
published report of the competent authority, its findings an d reasoned conclusions reached 
on all pertinent issues of fact and law and a detailed analysis of the case under 
investigation as well as a demonstration of the relevance of the factors examined;  
i. India acted inconsistently with Article  11.1(a) of the Agreement on Safeguards because it 
imposed the safeguard measures in violation of Articles  2.1, 3.1, 4.1(a), 4.1(b), 4.1(c), 
4.2(a), 4.2(b), 4.2(c), 5.1 , and 7.1 of the Agreement on Safeguards as well as Article  XIX 
of the GATT 1994;  
j. India acted inconsistently with Article  12.4 of the Agreement on Safeguards because it 
failed to notify the Committee on Safeguards before taking the provisional safeguard 
measure;  
k. India acted inconsistently with Article  12.1 of the Agreement on Safeguards becau se it 
failed to immediately notify the Committee on Safeguards upon initiating the investigation 
relating to serious injury or threat thereof; making a finding of serious injury or threat 
thereof caused by increased imports; and taking a decision to apply the safeguard 
measure;  
l. India acted inconsistently with Article  12.2 of the Agreement on Safeguards because, in 
making the notifications pursuant to Articles  12.1(b) and 12.1(c), it failed to provide th e 
Committee on Safeguards with "all pertinent informati on"; 
m. India acted inconsistently with Article  12.3 of the Agreement on Safeguards and 
Article  XIX:2 of the GATT 1994 because it failed to provide Japan with an adequate 
opportunity for prior consultations in respect of the proposed action;  
n. India acted incon sistently with Article  II:1(b) of the GATT 1994 because, through the 
measures at issue, India imposes " other duties or charges"  in violation of the 
second  sentence of Article  II:1(b) of the GATT 1994; and WT/DS518/ R 
 
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  o. India acted inconsistently with Article  I:1 of the GATT 1994 because the measures at issue 
are not applied to the products originating in certain countries and this constitutes an 
advantage that has not been accorded immediately and unconditionally to like products 
originating in other WTO Membe rs, including Japan.  
3.2.  Japan  further requests, pursuant to Article  19.1 of the DSU, that the Panel recommend that 
India bring its measures into conformity with its WTO obligations  by revoking its measures .18 
3.3.  India requests that the Panel reject Japan 's claims  in this dispute in their entirety.19 
4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the Panel 
in accordance with paragraph 19 of the Working Procedures adopted by the Pan el (see Annexes B -1, 
B-2, B-3, and B -4). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Australia, the European Union, Chinese Taipei, Ukraine, and the 
United  States  are reflected in their executive summaries, provided in accordance with paragraph  20 
of the Working Procedures a dopted by the Panel (see Anne xes C -1, C-2, C-3, C-4, and  C-5). China, 
Indonesia, Kazakhstan, Korea, Oman, Qatar, Russia , Singapore, and Viet Nam  did not submit written 
or oral arguments to the Panel.  
6  INTERIM REVIEW  
6.1.  On 23 August 2018, we issued our Interim Report to the parties. On 11 September 2018, Japan 
and India each submitted written requests for the Panel to review  precise aspects of the 
Interim  Report. Neither party requested for an interim review meeting. On 25 September 2018, both 
parties submitted comments on the other party 's requests for review.  
6.2.  The parties ' requests made at the interim review stage as well as the Panel 's discussion and 
disposition of those requests are set out in Annex A -2. 
7  FINDINGS  
7.1  Introduction  
7.1.  This dispute concerns a measure ap plied by India on imports of certain steel products. Japan 
claims that the measure is inconsistent with various provisions of the Agreement on Safeguards and 
the GATT 1994. Before addressing Japan 's claims in this dispute, we first set out the relevant 
principles guiding our review, including the relevant principles regarding standard of review, treaty 
interpretation, and burden of proof in WTO dispute settlement proceedings. We then address 
India's request that since the measure has expired, Japan 's compla int is not "fruitful" in terms of 
Article  3.7 of the DSU. After that, we consider whether Article  XIX of the GATT  1994 and the 
Agreement on Safeguards are app licable to the present dispute.  
7.2  General principles regarding standard of review, treaty interpreta tion, and burden of 
proof  
7.2.1   Standard of review  
7.2.  Panels are bound by the standard of review set forth in Article  11 of the DSU, which provides 
that: 
The function of panels is to assist the DSB in discharging its responsibilities under this 
Understanding and th e covered agreements. Accordingly, a panel should make an 
objective assessment of the matter before it, including an objective assessment of the 
                                                
18 Japan's  first writ ten submission, paras.  537-538; second written submission, para.  288. 
19 India's  first written submission, para.  352; second written submission, para.  20. WT/DS518/ R 
 
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  facts of the case and the applicability of and conformity with the relevant covered 
agreements, and make such o ther findings as will assist the DSB in making the 
recommendations or in giving the rulings provided  for in the covered agreements. 
Panels should consult regularly with the parties to the dispute and give them adequate 
opportunity to develop a mutually sat isfactory solution.  
7.3.  The Agreement on Safeguards is silent as to the standard of review to be applied by panels in 
reviewing the WTO -consistency of safeguard measures and the associated investigations. Previous 
panel and Appellate Body reports have establis hed that the general standard of review contained in 
Article  11 of the DSU is applicable to disputes involving claims of violation of the Agreement on 
Safeguards and Article  XIX of the GATT 1994.20 In US – Cotton Yarn , the Appellate Body examined 
the scope of this general rule provided in Article  11 regarding the standard of review applicable to 
disputes under the Agreement on Safeguards and summarized its views as follows:  
[P]anels must examine whether the competent aut hority has evaluated all relevant 
factors; they must assess whether the competent authority has examined all the 
pertinent facts and assessed whether  an adequate explanation has been provided as to 
how those facts support the determination; and they must a lso consider whether the 
competent authority 's explanation addresses fully the nature and complexities of the 
data and responds to other plausible interpretations of the data. However, panels must 
not conduct a de novo  review of the evidence nor substitute  their judgement for that of 
the competent authority.21 
7.4.  Thus, a panel 's examination of a competent authority 's determination in a safeguard 
proceeding must involve neither a de novo  review nor "total deference" to the competent 
authority 's determination.22 Rather, a panel is required to assess whether the competent authority 
has examined all relevant facts and provided a reasoned and adequate explanation as to how the 
facts support its determination.23 A panel can make this assessment:  
[O]nly  if the panel critically examines that explanation, in depth, and in the light of the 
facts before the panel. Panels must, therefore, review whether the competent 
authorities ' explanation fully addresses  the nature, and, especially, the complexities, of 
the data, and responds to other plausible interpretations of that data. A panel must find, 
in particular, that an explanation is not reasoned, or is not adequate, if some alternative 
explanation  of the facts is plausible, and if the competent authorities ' explanation does 
not seem adequate in the light of that alternative explanation.24 
7.5.  Although this standard of review was articulated by the Appellate Body in the context of a claim 
under Article  4.2(a) of the Agreement on Safeguards, the Appellate Body in US – Steel Safeguards  
clarified  that the same standard should be applied to other obligations under the Agreement on 
Safeguards as well as to the obligations in Article  XIX of the GATT 1994.25 
7.6.  A panel 's assessment of whether the competent authorities have complied with their 
obligations under the Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994 should be 
based on the relevant report published by the authorities.26 Article  3.1, last sentence, r equires 
                                                
20 See, e.g. Appellate Body Reports, Argentina – Footwear (EC) , para. 120; and US – Lamb , 
paras.  100-102; and Panel Report, Dominican Republic – Safeguard Measures , para. 7.4. 
21 Appellate Body Report, US – Cotton Yarn , para. 74 (referring at paras.  71-73 to Appellate Body 
Reports, Argentina – Footwear (EC) , para. 121; US – Lamb , para. 103; and US – Wheat Gluten , para. 55). 
22 Appellate Body Reports, US – Lamb , para. 101; US – Tyres (China) , para. 123; US – Cotton Yarn , 
para. 69; and Argentina – Footwear (EC) , para. 119. 
23 Appellate Body Reports, US – Lamb , para. 103; US – Line Pipe , para. 217; and US – Steel 
Safeguards , paras.  296-297. 
24 Appellate Body Report, US – Lamb , para. 106. (emphasis original)  
25 Appellate Body Report, US – Steel Safeguards , para.  276 (stating that "[O]ur finding in those cases 
[such as US – Lamb ] did not purport to address solely the  standard of review that is appropriate for claims 
arising under  Article  4.2 of the Agreement on Safeguards. We see no reason not to apply the same standard 
generally  to the obligations under the Agreement on Safeguards as well as to the obligations in Article  XIX of 
the GATT 1994").  
26 Panel Report, Ukraine – Passenger Cars , para. 7.26. (referring to Appellate Body Reports, US – Steel 
Safeguards , para. 299; and US – Lamb , para. 105; and Panel Report, Dominican Republic – Safeguard 
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  competent authorities to publish a report setting forth their findings and reasoned conclusions 
reached on all pertinent issues of fact and law. Similarly, Article  4.2(c) requires competent 
authorities to publish promptly, in accordance with the pr ovisions of Article  3, a detailed analysis of 
the case under investigation as well as a demonstration of the rel evance of the factors examined.  
The panel in US – Steel Safeguards  noted that:  
It is precisely by "setting forth findings and reasoned conclusio ns on all pertinent issues 
of fact and law", under Article  3.1, and by providing "a detailed analysis of the case 
under investigation as well as a demonstration of the relevance of the factors 
examined", under Article  4.2(c), that competent authorities pro vide panels with the 
basis to "make an objective assessment of the matter before  it" in accordance with 
Article  11. … [A] panel may not conduct a de novo  review of the evidence or substitute 
its judgement for that of the competent authorities. Therefore, t he "reasoned 
conclusions" and "detailed analysis" as well as "a demonstration of the relevance of the 
factors examined" that are contained in the report of a competent authority, are the 
only bases on which a panel may assess whether a competent authority has complied 
with its obligations under the Agreement on Safeguards and Article  XIX:1(a) of the 
GATT 1994.27 
7.7.  Panels should not be "left to 'deduce for themselves ' from the report of that competent 
authority the 'rationale for the determinations from the fac ts and data contained in the report of the 
competent authority'".28 The explanations contained in a competent authority 's published report 
must be "explicit", "clear and unambiguous", and must not "merely imply or suggest an 
explanation".29 
7.8.  Where there is no  reasoned and adequate explanation apparent in the published report to 
support a competent authority 's determinations "the panel has no option but to find that the 
competent authority has not performed the analysis correctly".30 This implies that reasoning,  
analysis , and demonstrations provided after publication of the report – i.e. ex post  explanations – 
are irrelevant and cannot be relied upon to remedy any deficiencies of the competent 
authorities ' determinations.31 
7.2.2   Treaty interpretation  
7.9.  Article  3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the 
existing provisions of the covered agreements "in accordance with customary rules of interpretation 
of public international law". The principles codified in Articles  31 an d 32 of the Vienna Convention 
on the Law of Treaties are generally accepted as such customary rules.32 
7.2.3   Burden of proof  
7.10.   The general principles applicable to the allocation of the burden of proof in WTO dispute 
settlement require that a party claiming a viola tion of a provision of a WTO Agreement must assert 
and prove its claim.33 Therefore, as the complaining party, Japan bears the burden of demonstrating 
that the challenged measures are inconsistent with the Agree ment on Safeguards and the 
GATT  1994. A compla ining party will satisfy its burden when it establishes a prima facie  case, namely 
a case which, without  effective refutation by the defending party, requires a panel, as a matter of 
law, to rule in favour of the complaining party.34 Generally , each party a sserting a fact  shall provide 
proof thereof.35 
                                                
27 Appellate Body Report, US – Steel Safeguards , para. 299. ( fn omitted)  
28 Appellate Body Report, US – Steel Safeguards , para. 288. 
29 Appellate Body Reports, US – Steel Safeguards , paras.  296-297; US – Line Pipe , para. 217. 
30 Appellate Body Report, US – Steel Safeguards , para. 303. 
31 Panel Report, Indonesia – Iron or Steel Products , para.  7.7. 
32 Appellate Body Reports, US – Gasoline , DSR 1996:1, p.  16; Japan – Alcoholic Beverages  II, 
DSR 1996:1, p. 104, section D.  
33 Appellate Body Report, US – Wool Shirts and  Blouses , DSR 1197:1,  p. 337. 
34 Appellate Body Report, EC – Hormones , para. 104. 
35 Appellate Body Report, US – Wool Shirts and Blouses , DSR 1197:1,  p. 335. 
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  7.3  Whether the Panel should make findings despite the expiry  of the measure  at issue  
7.3.1   Introduction  
7.11.   The DSB established this Panel  at its meeting on 3 April 2017 at the request of Japan . On 
22 June 2017, the Directo r-General composed the Panel , pursuant to Article  8.7 of the DSU.36 
7.12.   The safeguard measure at issue in this dispute was imposed by the Indian Ministry of Finance 
on 29  March  2016.37 According to the terms of the measure as published in the Gazette of India , the 
duties resulting from the measure would be in force, at different rates and subject to a schedule of 
progressive liberalization, until 13 March  2018.38 During the proceedings India declared that it had 
no intention to extend the measure beyond the date of its expiration.39 
7.13.   Notwithstanding the expiration of the measure, in accordance with the relevant legislation if 
a duty resulting from the safeguard measure w as not levied or was not paid for any reason other 
than collusion, wilful misstatement , or suppre ssion of facts, such duty may still be claimed within 
two years from the date on which the customs officer made an order for the clearance of goods. In 
case the duty was not levied or was not paid by reason  of collusion, wilful misstatement , or 
suppression  of facts, such duty may be claimed within a period of five years.40 
7.14.   Considering that the measure at issue would only be in force until 13 March  2018, India has 
requested the Panel to determine whether the panel procedure initiated by Japan complies with th e 
requirement in Article  3.7 of the DSU that "[b]efore bringing a case, a Member shall exercise its 
judgement as to whether action under [the DSU] procedures would be fruitful".41 India has added 
that it does not have any intention to extend the measure bey ond the date of its expiration.42 India 
has also indicated that, in accordance with Article  7.5 of the Agreement on Safeguards , there is no 
possibility for the safeguard measure to be easily reimposed by India on the same products 
concerned.43 India notes th at, in accordance with Article  3.7 of the DSU, in the absence of a mutually 
agreed solution and if a measure is found to be inconsistent with provisions of the covered 
agreements, the first objective of the dispute settlement mechanism is usually to secure  the 
withdrawal of the measure at issue. In India 's view, considering  that the measure expired on 
13 March 2018, "no useful purpose would be served if Japan pursues with its claims".44 
7.15.   Japan has asked the Panel to reject India 's request and to make findings  and 
recommendati ons with respect to the measure  at issue , even if the measure has expired .45 Japan 
has referred to the previous statements by the Appellate Body  indicating that (i) a Member  enjoy s 
broad discretion in deciding whether to bring a case agains t another Member under the DSU ; (ii) the 
language of Article  3.7 of the DSU suggests that Members are expected to be "largely 
self-regulating" in deciding whether any action under the DSU procedures would be "fruitful" ; and 
(iii) Article  3.7 neither requir es nor authorizes a panel to look behind a Member 's decision and to 
question its exercise of judgement.46 Japan has added that it has initiated these panel proceedings 
                                                
36 See paras.  1.3-1.5 above.  
37 Notification imposing a definitive safeguard measure, (Exhibits  JPN-13/IND -13), pp.  6-7. 
38 Notification imposing a definitive safeguard measur e, (Exhibits  JPN-13/IND -13), p.  6. See also 
Japan's  first written submission, paras.  42 and 416; and India's first written submission, para.  44. 
39 India's  second written submission, para.  2. 
40 Excerpt from The Customs Act, 1962, Section 28, (Exhibit JPN -26). See also Japan 's opening 
statement at the second meeting of the Panel, para. 19 and fn  28; closing statement at the second meeting of 
the Panel, para. 3; comments on India's  response to Panel question No.  76; and India's  response to Panel 
question No.  76. 
41 India's opening statement at the first meeting of the Panel, para. 45; second written submission, 
para. 2. 
42 India's second written submission, para.  2. 
43 India's second written submission, paras.  5-6. 
44 India's second written submission, para.  3. See also closing statement at the second meeting of the 
Panel, paras.  1-2; and response to Panel question No. 71. 
45 Japan 's response to Panel question No. 13, para. 15; opening statement at the second meeting of the 
Panel, para. 10. 
46 Japan 's response to Pa nel question No. 13, para. 8 (referring to Appellate Body Reports , EC – 
Bananas III , para. 135; and Mexico – Corn Syrup ( Article  21.5 – US), para. 74). See also opening statement at 
the second meeting of the Panel, paras.  8-9. 
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  in good faith.47 It has noted that the measure at issue was in force at the time of the es tablishment 
of the Panel48 and that Japan, as the complaining party, has continued to request that the Panel 
make findings.49 Japan has further submitted that the dispute between the parties has not been 
resolved, given that India continues to argue that the  measure at issue is fully consistent with the 
relevant provisions under the GATT 1994 and the Agreement on Safeguards.50 Japan has  also 
highlighted the difference between the expiration of a measure (when the measure has lapsed) and 
the revocation of a mea sure (recall or annulment of the measure). In Japan 's view, only the 
revocation of the measure at issue, in which not only the measure itself but also any resulting effects 
are removed from the legal system, would solve this dispute.51 Regarding India 's argument on 
Article  7.5 of the Agreement on Safeguards, Japan has noted that Article  7.5 does not prevent India 
from imposing the measure after the time limit provided therein expires.52 Finally, Japan has 
emphasized the temporary nature of safeguard measures and argued that  if panels refrained from 
issuing findings and recommendations with respect to expired measures, it would mean that 
Members may adopt WTO -inconsistent safeguard measures without a possibility for other Members 
to effectively challenge those measures.53 
7.3.2   Evaluation by the Panel  
7.16.   The terms of reference of this Panel are based on the description of the matter that was 
referred to the DSB by Japan in its panel request of 9 March 2017. That panel request included the 
specific measure at issue identif ied by Japan and the legal basis of Japan 's complaint (the claims). 
When the DSB established this Panel on 3 April 2017, it outlined the Panel 's jurisdiction to adjudicate 
the matter that has been brought before us.54 
7.17.   Once a panel 's jurisdiction is establis hed, the panel is required to address the "matter" before 
it in accordance with Article  11 of the DSU, which sets out the function of panels. We have already 
noted the text of Article  11 of the DSU , which describes the function of panels as assisting the D SB 
in discharging its responsibilities under the DSU and the covered agreements. To this end, "a panel 
should make an objective assessment of the matter before it, including an objective assessment of 
the facts of the case and the applicability of and conf ormity with the relevant covered agreements." 
In addition, a panel should "make such other findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in the covered agreements". Accordingly , 
panels carry out their adjudicative mandate, as set out in Article  11 of the DSU, so as to assist the 
DSB in discharging its responsibilities under the DSU and the covered agreements.  
7.18.   WTO panels have certain powers that are inherent in their adjudicative  function under 
Article  11 of the DSU.  For instance, panels have the authority to determine whether they have 
jurisdiction in a given case and to determine the scope and limits of that jurisdiction, as defined by 
their terms of reference.55 Panels also have  "a margin of discretion to deal, always in accordance 
with due process, with specific situations that may arise in a particular case and that are not explicitly 
                                                
47 Japan 's response to Panel question No. 13, para. 9. 
48 Japan 's response to Panel question No. 13, para. 14; opening statement at the second meeting of the 
Panel, paras.  11-12. 
49 Japan's  opening statement at the second meeting of the Panel, para.  12. 
50 Japan notes that previous panel s considered relevant the fact that  the defending party argue d its 
measures  to be consistent with its WTO obligations , when deciding whether they should make findings wi th 
regard to expired measures. (Japan's  opening statement at the second meeting of the Panel, para.  13 
(referring to Panel Reports , EC – IT Products , para. 7.166; India – Additional Import Duties , paras.  7.69-7.70; 
China – Publications and Audiovisual Products , para. 7.453 ; and US – Poultry (China) , para. 7.55)). 
51 Japan 's response to Panel question No. 74, paras.  6-9. 
52 Japan 's opening statement at the second meeting of the Panel, para. 16. Japan added that India 
failed to indicate the provision of the domestic legislation that prevents it from re -imposing safeguard 
measures.  
53 Japan 's opening statement at the second meeting of the Panel, para. 16. 
54 Appellate Body Reports, EU – PET (Pakistan) , para. 5.13; US – Countervailing Measures (China) , 
para. 4.6; US – Carbon Steel , para. 125; and Guatemala – Cement I , paras.  69-76. 
55 Appellate Bo dy Reports, EU – PET (Pakistan) , para.  5.16; Mexico – Taxes on Soft Drinks , para. 45 and 
fn 90 (referring to Appellate  Body Reports, US – 1916 Act , fn 30; and Mexico – Corn Syrup ( Article  21.5 – US), 
paras.  36 and 53).  
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  regulated" .56 However, as noted by the Appellate  Body in Mexico – Taxes on Soft Drinks , once 
jurisdiction has been validly established, a WTO panel may not entirely decline to exercise that 
jurisdiction in a case that is properly before it.57 
7.19.   In the present case, neither of the parties has questioned that the Panel has jurisdiction to 
rule on the mat ter before it . We note in this respect that the measure at issue was in force at the 
time of the establishment of the Panel58 and expired only during the Panel proceedings. As noted by 
the panel on EU – PET (Pakistan) , while some past panels have declined t o make findings with 
respect to a measure that had expired before  panel establishment, no panel has declined to hear 
the entirety of a dispute due to the expiry of the challenged measure  after panel establishment.59 
Moreover, no issue has arisen that would indicate a legal impediment precluding the Panel from 
ruling on the merits of the matter before us.60 
7.20.   Article  3.7 of the DSU, the provision cited by India, contemplates a "largely self -regulating" 
mechanism by which  each Member is to exercise its own judgement as to whether action under the 
WTO dispute settlement procedures would be fruitful before bringing a matter through this system.61 
In relevant part, Article  3.7 provides : 
Before bringing a case, a Member shall e xercise its judgement as to whether action 
under these procedures would be fruitful. The aim of the  dispute settlement mechanism 
is to secure a positive solution to a dispute. A solution mutually acceptable to the parties 
to a dispute and consistent with t he covered agreements is clearly to be preferred. In 
the absence of a mutually agreed solution, the first objective of the dispute settlement 
mechanism is usually to secure the withdrawal of the measures concerned if these are 
found to be inconsistent with  the provisions of any of the covered agreemen ts. 
7.21.   We must accordingly presume that when Japan submitted  its panel request, it did so in good 
faith, having duly exercised its judgement as to whether recourse to this panel process would be 
"fruitful". A s noted by the Appellate Body , "Article  3.7 neither requires nor authorizes a panel to look 
behind that Member 's decision and to question its exercise of judgement ".62 The fact that a Member 
may initiate a WTO  dispute whenever it considers that any benefits accr uing to it are being impaired 
by measures taken by another Member, pursuant to Article  3.3 of the DSU, "implies that that 
Member is entitled to a ruling by a WTO  panel".63 
7.22.   The Appellate  Body has noted  that the mere fact that a measure has expired  is not dispositive 
of the question of whether a panel can add ress claims with respect to that measure.64 Although 
                                                
56 Appellate Body Report, EU – PET (Pakistan) , para.  5.16; Mexico – Taxes on Soft Drinks , para. 45 and 
fn 91 (quoting Appellate  Body Report, EC – Hormones , fn 138, referring  in turn  to Appellate Body Report, US – 
FSC ( Article  21.5 – EC), paras.  247-248).  
57 Appellate Body Report, Mexico – Taxes on Soft Drinks , paras.  46 and 52-53. 
58 The Appellate Body in EC – Chicken Cuts stated:  
The term "specific measures at issue" in Article  6.2 suggests that, as a general rule, the measures 
included in a panel 's terms of reference must be measures that are in existence at the time of the 
establishment of the panel.  
(Appellate Body Report, EC – Chicken Cuts , para. 156). 
59 Panel Report, EU – PET (Pakistan) , para. 7.13 and fn 35 (referring to Panel Reports, 
Dominican  Republic – Import and Sale of Cigarettes , para. 7.343; Indonesia – Autos , para. 14.9; China – 
Electronic Payment Services , para. 7.227; EC – Approval and Marketing of Biotech Products , paras.  7.1307  
and 7.1308; US – Gasoline , para. 6.19; and Argentina – Textiles and Apparel , paras.  6.4 and  6.12-6.13).  
60 In Mexico – Taxes on Soft Drinks , the Appellate  Body noted that a decision by a panel to decline to 
exercise validly established jurisdiction would seem to "diminish" the right of the complaining Member to "seek 
the redress of a violation of obligations" within the meaning of Article  23 of the DSU. The Appellate Body, 
however, cautioned that it was "[m]indful of the precise scope of Mexico 's appeal", and that it expressed "no 
view as to whether there may be other circumstances in which legal impediments could exist that would 
preclude a panel from ruling on the merits of  the claims that are before it."  (Appellate Body Report, Mexico – 
Taxes on Soft Drinks , paras.  53-54). 
61 Appellate Body Report, EU – Fatty Al cohols (Indonesia) , para. 5.179 (referring to Appellate Body 
Report, EC – Bananas III , para. 135). 
62 Appellate Body Report, Mexico – Corn Syrup ( Article  21.5 – US), para. 74. 
63 Appellate Body Report, Mexico – Taxes on Soft Drinks , para. 52. (emphasis omitt ed) 
64 Appellate Body Reports, EU – PET (Pakistan) , para.  5.25; EU – Fatty Alcohols (Indonesia) , 
para. 5.179 (referring to Appellate Body Reports, EC – Bananas III ( Article  21.5 – Ecuador II) / EC – 
Bananas  III (Article  21.5 – US), para. 270).  
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  Article  12.7 of the DSU provides that when the parties to a dispute arrive at a mutually satisfactory 
solution a panel should refrain from ruling on t he merits of the claims before it, the repeal or expiry 
of a measure does not necessarily constitute, without more, a "satisfactory settlement of the matter" 
within the meaning of Article  3.4, or a "positive solution to the dispute" within the meaning of 
Article 3.7.65 
7.23.   We note India 's argument that, due to its expiration, it would not be possible to "withdraw" 
the challenged measure within the meaning of Article  3.7 of the DSU, if it is found to be inconsistent 
with provisions of the covered agreements . We also note that even after the measure at issue expired 
on 13 March  2018, there are potential lingering effects of the measure with respect to imports that 
occurred before that date. Indeed, as noted above, if a duty resulting from the safeguard measure 
was not levied or was not paid for any reason , such duty may still be claimed within a period of 
two years  (or even for a period of five years if the duty was not levied or was not paid by reason  of 
collusion, wilful misstatement , or suppression of facts ).66 
7.24.   We have already noted that the measure at issue was in force at the time when this Panel 
was established and expired only during the Panel proceedings.  Moreover, as noted above, Japan 
has continued to request the Panel to make findings with respect to th e measure  at issue despite its 
expiry . The Appellate Body has noted that , pursuant to Articles  3.3 and 3.7 of the DSU, a complaining 
Member 's continued request for findings following the expiry of a measure at issue is a 
relevant  consideration  for a panel in deciding whether to proceed to make findings in a dispute .67 
Despite the expiry of the measure, there continues to exist  a dispute between the parties on the 
"applicability of and conformity with the relevant covered agreements"68 as regards the Indian 
comp etent authority 's findings underpinning the measure at issue. Therefore , the "matter" within 
the jurisdiction of the Panel has not been fully resolved by the expiry of the measure.  Finally, as 
indicated, despite the termination of the measure at issue there are potential lingering effects of the 
measure with respect to imports that occurred before that date.  
7.25.   For the reasons indicated, in the circumstances of the present case, the expiry of the measure 
at issue after the Panel was established69 does not excus e us from exercising  our function under 
Article  11 of the DSU to make findings with respect to the matter raised by Japan . 
7.26.   Finally, we note that Japan has also asked the Panel to make recommendati ons with respect 
to the measure  at issue , even if the measure has expired.  
7.27.   Article  19 of the DSU is entitled " Panel and Appellate Body Recommendations ". In relevant 
part it provides in paragraph 1 that "[w] here a panel … concludes that a measure is inconsistent 
with a covered agreement, it shall recommend tha t the Member concerned bring the measure into 
conformity with that agreement ".70 Despite what Article  19.1 provides, panels generally refrain from 
making recommendations on measures found to be inconsistent with provisions of the covered 
agreements when the se measure  are no longer in existence.71 Having said that, to the extent that 
an expired measure may continue  to have an effect on the operation of a  covered agreement , it 
would be appropriate for a panel to provide  recommendations with regard to the measur es at issue .72 
7.28.   We have already noted that, despite the expiry of the measure at issue, there are potential 
lingering effects of the measure with respect to imports that occurred before that date.  Accordingly, 
                                                
65 Appellate Body Reports, EU – PET (Pakistan) , para. 5.27; EU – Fatty Alcohols (Indonesia) , 
para. 5.179 (referring to Appellate Body Report, US – Upland Cotton , para. 270).  
66 Excerpt from the Customs Act, 1962, Section 28, (Exhibit JPN -26). Japan has noted that a reso lution 
of the current dispute would require, not just the termination of the measure at issue itself, but also of any 
legal effects that may survive after the measure has expired. ( Japan 's response to Panel question No. 74, 
paras.  6-9). 
67 Appellate Body Report, EU – PET (Pakistan) , para. 5.42. 
68 Article  11 of the DSU.  
69 Appellate Body Report, EU – Fatty Alcohols (Indonesia) , para. 5.179.  
70 Fn omitted.  
71 See, for example, Appellate Body Report s, US – Certain EC Products , paras.  81-82; and China – Raw 
Materials , para. 264. See also P anel Report s, US – Large Civil Aircraft (2nd complaint) , paras.  8.6-8.7; and  EC – 
Approval and Marketing of Biotech Products , para. 7.1316 . 
72 See, for example, Appellate Body Report, US – Upland Cotton , paras.  271-273; and Panel Report s, 
Thailand – Cigarettes  (Philippines) , paras.  6.25 and 8.8; and  India – Autos , paras.  8.47, 8.51, 8.60 , and 8.65 . 
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  in the circumstances of the present case, it is appropriate for the Panel to provide  recommendat ions 
with regard to the measure  at issue  to the extent that there may continue to be effects with respect 
to imports occurred when the measure was in force.  
7.4  Whether Article  XIX of the GATT 1994 and the Agreem ent on Safeguards are 
applicable to the present dispute  
7.4.1   Introduction  
7.29.   We recall that Article  11 of the DSU sets out panels ' standard of review, and provides that "a 
panel should make an objective assessment of the matter before it", which includes , among ot hers, 
an assessment of the "applicability" of the relevant covered agreements.73 
7.30.   In this dispute, most of the claims have been raised by Japan under Article  XIX of the 
GATT  1994 and under different provisions of the Agreement on Safeguards . The parties have  not 
questioned  the applicability of Article  XIX of the GATT  1994 or the Agreement on Safeguards  to the 
dispute. Indeed, both parties agree that the challenged measure is a safeguard within the meaning 
of Article  XIX:1(a) of the GATT  1994 and the Agreement  on Safeguards .74 However , given the facts 
before us and the arguments made by the parties and third parties in this proceeding75, we consider 
it appropriate to examine whether the measure at issue falls within the scope of the Agreement on 
Safeguards and Article XIX of the GATT 1994 , before addressing the merits of Japan 's claims . 
Indeed, as noted by the Appellate Body:  
[A] panel is not only entitled, but indeed required, under Article  11 of the DSU to carry 
out an independent and objective assessment of the  applicability of the provisions of 
the covered agreements invoked by a complainant as the basis for its claims, regardless 
of whether such applicability has been disputed by the parties to the dispute.76 
7.31.   According to Article  1 of the Agreement on Safeguard s, this agreement contains rules "for the 
application of safeguard measures which shall be understood to mean those measures provided for 
in Article  XIX of GATT 1994" . 
7.32.   Article  XIX of GATT 1994  is entitled "Emergency Action on Imports of Particular Products" and 
provides in paragraph 1(a) as follows:  
If, as a result of unforeseen developments and of the effect of the obligations incurred 
by a [Member] under this Agreement, including tariff conce ssions, any product is being 
imported into the territory of that [Member] in such increased quantities and under such 
conditions as to cause or threaten serious injury to domestic  producers in that territory 
of like or directly competitive products, the [Member] shall be free, in respect of such 
product, and to the extent and for such time as may be necessary to prevent or remedy 
such injury, to suspend the obligation in whole or in part or to withdraw or modify the 
concession .77 
7.33.   In other words , Article  XIX:1(a) of the GATT 1994 and the Agreement on Safeguards refer to 
emergency measures adopted by a Member, which suspend obligations under the GATT 1994 
(including tariff concessions ), when unforeseen developments and the effect of such 
                                                
73 In this respect the Appellate Body has noted that:  "the 'fundamental structure and logic ' of a covered 
agreement may r equire panels to determine whether  a measure falls within the scope of a particular provision 
or covered agreement before  proceeding to assess the consistency of the measure with the substantive 
obligations imposed under that provision or covered agreement ". (Appellate Body Report s, China – Auto Parts , 
para. 139 (emphasis original )). 
74 Japan's  second written submission, paras.  278-279; response to Panel question  No.11; 
India's  response to Panel question No.11; and opening statement at the second meeting of the Panel, 
paras.  5-6. See also paras.  7.44, 7.54, and 7.64 below.  
75 Australia's  third-party submission, paras.  5-15; third -party response to Panel question No.  3, 
paras.  3.1-3.4; European Union's  third-party submission, paras.  7-26; third -party statement, paras.  3-19; and 
third-party response to Panel question No.  5, paras.  19-20. See also Chinese Taipei's  third-party statement, 
paras.  5-13; and third -party resp onse to Panel question No.  5, para. 11. 
76 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.33. 
77 Emphasis added.  
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  GATT  obligations have r esulted in an increase in imports that cause s or threaten s to cause serious 
injury to the relevant domestic producers. Article  XIX:1(a) and the Agreement on Safeguards allow 
WTO Members to impose  a measure that would otherwise be inconsistent with its GATT  obligations, 
provided that the conditions for the application of such a measure are met.78 Such measures are to 
be applied temporarily , and subject to a schedule of progressive liberalization,  so as to prevent or 
remedy serious injury caused by increased imports to the domestic producers of like or directly 
competitive products. Article  11 of the Agreement on Safeguards refers to the measures applied 
under Article  XIX of the GATT 1994 as "emergency actions on imports of particular products ", the 
same expression contained in the title of Article  XIX. In this regard, the Appellate Body has stated 
that "safeguard measures were intended by the drafters of the GATT to be matters out of the 
ordinary, to be matters of urgency, to be , in short, 'emerge ncy actions' ".79 
7.34.   The Appellate Body has further clarified that:  
[I]n order to constitute one of the "measures provided for in Article  XIX", a measure 
must present certain constituent features, absent which it could not be considered a 
safeguard measure. Fir st, that measure must suspend, in whole or in part, a 
GATT  obligation or withdraw or modify a GATT concession. Second, the suspension, 
withdrawal, or modification in question must be designed to prevent or remedy serious 
injury to the Member 's domestic ind ustry caused or threatened by increased imports of 
the subject product. In order to determine whether a measure presents such features, 
a panel is called upon to assess the design, structure, and expected operation of the 
measure as a whole.80 
7.4.2   Whether the m easure at issue constitutes an ordinary customs duty  
7.35.   As part of our assessment of the design, structure, and operation of the measure at issue, we 
start by considering the argument raised by some third parties that the measure adopted by India 
constitutes an ordinary customs duty. Indeed, in response to a question posed by the Panel, the 
European Union has argued that "the safeguard duties imposed in this case are 'ordinary customs 
duties ' within the meaning of Article  II:1 of the GATT 1994 ".81 The European Union concludes that 
the measure at issue "did not suspend, withdraw, or modify India 's obligations under Article  II of 
the GATT 1994".82 Similarly, Australia has argued that the measure at issue did not withdraw or 
modify India 's tariff concession of 40% r ecorded in its Schedule of Concession s.83 
7.36.   Article  II:1(b) of the GATT 1994 provides as follows:  
The products described in Part I of the Schedule relating to any [Member] , which are 
the products of te rritories of other [Members] , shall, on their importation into the 
territory to which the Schedule relates, and subject to the terms, conditions  or 
qualifications set forth in that Schedule, be exempt from ordinary customs duties in 
excess of those set forth and provided therein . Such products shall also be exempt from 
all other duties or charges of any kind imposed on or in connection with the importation 
in excess of those imposed on the date of this Agreement or those directly and 
mandatorily required to be imposed thereafter by le gislation in force in the importing 
territory on that date.  
7.37.   India has bound in its Schedule of Concessions its ordinary customs duties (tariffs) for the 
products at issue in this dispute, i.e. hot-rolled flat products of non -alloy and other alloy steel in 
coils of a width of 600 mm or more (product concerned), classified under tariff heading  7208 and 
tariff item  7225.30.90, at a level of 40% ad valorem .84 During the period of application of the 
                                                
78 Panel Report s, US – Steel Safeguards , para. 10.9. 
79 Appellate Body Report, Korea – Dairy , para. 86. 
80 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60. 
81 European Union's  third-party response to Panel question No.  2, para.  11. 
82 European Union's  third-party submission, para.  22. 
83 Australia's  response to Panel question No. 3.  
84 Schedul e of Concessions XII – India, annexed to the Marrakesh Protocol, available at: 
https://www.wto.org/english/tratop_e/schedules_e/goods_schedules_table_e.htm  (accessed 15 July 2018) ; 
Excerpt from  India's Schedule of Concession s with respect to customs headin g 7208, ( Exhibit IND -21); and 
Excerpt from Schedule of Concessions XII – India (15 March 2000) , (Exhibit JPN -28). 
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  measure  at issue, the applied tariff s for the product s concerned  were 10 or 12.5% ad valorem .85, 86 
In turn, t he maximum amount of the duty imposed , pursuant to the safeguard at issue in the present 
dispute,  was 20%  ad valorem .87 As a result, during the time when the measure at issue was in force,  
the duties  imposed on the importation of the products concerned,  including the duties resulting from 
the measure and the regular tariff , did not exceed 32.5%  ad valorem . In other words, even 
considering both the measure at issue and the applicable tariff,  the total import duties on the product 
concerned did not exceed India's 40% bound rate of ordinary customs duties. 
7.38.   The fact that the measure at issue did not result in total duties on the importation of the 
product concerned that exceeded the rate bound by India in its Schedule of Concessions , however,  
does not necessarily imply that the duties resulting from the measure had the nature of an ordinary 
customs duty.  
7.39.   As the panel in Dominican Republic – Safeguard Measures  noted , while a Member may impose 
various duties at the border, ordinary customs duties are those that possess the essential attributes 
or qualities of customs duties.88 The panel indicated that "the expression ' ordinary customs duties ' in 
Article  II:1(b) of the GATT 1994 refers to duties collected at the  border which constitute 'customs 
duties ' in the strict sense of the term ( stricto sensu ) and  … does not cover possible extraordinary or 
exceptional duties collected in customs ".89 The panel in that case considered the design and structure 
of the measures concerned.  
7.40.   We are aware that the manner in which a Member 's domestic law characterizes its own 
measures is not dispositive of the characterization of such measures under WTO law.90 At the same 
time, the operation of measures under domestic law may be a usef ul starting point when ascertaining 
a measure 's design , structure , and operation . As explained by India, customs duties on the 
importation of products are approved through legislation.91 India has indicated that:  
The relevant domestic legislation governing "ordinary customs du ties" is the 
Customs  Act, 1962.  
The procedure for amending the relevant domestic legislation governing "ordinary 
customs duties" i.e. the Customs Act, 1962 is through an Act of Parliament . While the 
power to levy of "ordinary customs du ties" flows from section 12  of the Customs 
Act, 1962, the " rate of duty " is set out under the Customs Tariff Act, 1975.92 
7.41.   In contrast, India 's domestic legislation on safeguards is contained in Section 8B of the 
Customs Tariff Act, 1975 , and in the Customs Tariff (Identification and Assessment of Safeguard 
Duty) Rules, 1997 .93 The measure at issue was imposed by India 's Ministry of Finance pursuant to 
this legislation that authorizes the Central Government "after conducting such enquiry as it deems 
                                                
85 India's response to Panel  question No. 79; first written submission, para. 49; and Japan 's first written 
submission, para. 48 (referring to Notification No. 10/2015 -Customs (1 March 2015 ), (Exhibit JPN -19); 
Notification No. 39/2015 -Customs (16 June 2015 ), (Exhibit JPN -20); and Notification No. 45/2015 -Customs 
(12 August 2015 ), (Exhibit JPN -21)). 
86 During the POI , the applied tariff for the product concerned was primarily 7.5% . (Final Findings, 
(Exhibits JPN -11/IND -11), para. 81, p. 205).  See also India 's first written submission, para. 49; and 
Japan 's first written submission, para. 48 (referring to Notification No. 12/2012 -Customs (17 March 2012 ), 
(Exhibit JPN -17); and Notification No. 12/2014 -Customs (11 July 2014 ), (Exhibit JPN -18)). 
87 The s afeguard duty at issue was imposed on imports of the product concerned at the following rate: 
(i) 20% from 14  September 201 5 to 13  September 2016 , (ii) 18% from 14  September 2016 to 13  March  2017, 
(iii) 15% from 14  March 2017 to 13 September  2017, and (iv) 10% from 14  September  2017 to 13 
March  2018. (Final Findings, (Exhibits JPN -11/IND -11), p. 209).  
88 Panel Report, Dominican  Republic – Safeguard Measure s, para.  7.82. 
89 Panel Report, Dominican Republic – Safeguard Measure s, para. 7.85. 
90 Appellate Body Reports, China – Auto Parts , para. 178. See also Appellate Body Report, Indonesia – 
Iron or Steel Products , para. 5.60 (referr ing to Appellate Body Reports, US – Large Civil Aircraft 
(2nd complaint) , paras.  586 and 593; US – Offset Act (Byrd Amendment) , para. 259; US – Softwood 
Lumber  IV, para. 56; US – Corrosion -Resistant Steel Sunset Review , fn 87; Canada – Renewa ble Energy  / 
Canada – Feed-in Tariff Program , para. 5.127).  
91 India's response to Panel  question No. 12. See Customs Tariff Act, (Exhibits JPN -1/IND -1), Section 2, 
p. 2. See also ibid. Sections 6 -7, pp.  8-9. 
92 India's response to Panel  question No. 81. 
93 Customs Tariff  Act, (Exhibits JPN -1/IND -1); Safeguard Rules, (Exhibits JPN -2/IND -2). 
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  fit, [when it] is satisfied that any article is imported into India  in such increased quantities and under 
such conditions so as to cause or threatening to cause serious injury to domestic industry  … by 
notification in the Official Gazette [to] impose a sa feguard duty on that article" .94 
7.42.   The measure  at issue resulted in duties levied in customs  on the importation of the products 
concerned into the territory of India. These duties operated similarly  to an ordinary customs duty. 
However, by its design and stru cture, the measure at issue and the duties that resulted from its 
application were different from an ordinary customs duty . As noted above, the legal basis in Indian 
domestic legislation under which the measure at issue was applied is different from that w hich 
regulates the imposition of tariffs on imports. Moreover, as described in the decision adopted o n 
29 March  2016 by the Ministry of Finance, the definitive safeguard measure was imposed for a period 
of thirty months (two and a half years, from 14  Septe mber 2015 to 13 March  2018). During this 
period, the duties resulting from the measure were subject to progressive reductions, according to 
a schedule contained in the same Ministry of Finance  decision . As noted in the same decision  by the 
Ministry of Fina nce, the measure was imposed on the basis of a conclusion from the national 
competent  authority that "[t] he increased imports of [the product under consideration] into India, 
[had] caused serious injury and [were] threatening to cause serious injuries to the domestic 
producers of [the product under consideration] and [that] it [would] be in the public inter est to 
impose safeguard duty on imports of [the product under consideration] into India … in terms of 
Rule 12 of the Customs Tariff (I dentif ication And Assessment of Safeguard Duty) Rules '97, for a 
period of two Years and Six months ".95 In other words, the measure at issue was an "extraordinary" 
or "exceptional" instrument and not an "ordinary" one. 
7.43.   The duties resulting from the measure at issu e did not replace th e normal tariffs applied to 
imports. Indeed, the applicable legislation in India provides that "[t]he duty chargeable under this 
section [i.e. Section 8B on safeguard measures] shall be in addition to any other duty imposed under 
this A ct or under any other law for the time being in force".96 In other words, the measure  at issue 
did not constitute the ordinary tariff that is normally applicable to the importation of the product 
concerned into the territory of India under the Customs Act, 1962. Instead, the measure  at issue 
constituted an emergency action under specific legislation, that resulted in temporary duties  ("other 
duties or charges")  applied on the importation of goods originating from certain countries, and that 
was adopted by the Indian competent authorit y to protect domestic production from the alleged 
injury caused by increased imports  of the subject product . In conclusion, the measure at issue does 
not possess the essential attributes or qu alities of ordinary customs duties. By their design , 
structure , and operation, the duties resulting from this measure do not constitute " ordinary customs 
duties " for the purposes of Article  II:1(b) of the GATT 1994 . 
7.4.3   Whether the measure at issue result ed in the suspension of a GATT obligation  
7.44.   We now turn to the argument raised by some third parties that the measure at issue did not 
suspend India 's obligations under the GATT 1994.97 In contrast, the complainant and the respondent 
are of the view that the dutie s resulting from the measure at issue result ed in a suspension of some 
obligations under the GATT 1994. Indeed, b oth parties assert that the measure at issue suspended 
India's obligation under Article  II:1(b), second sentence, of the  GATT  1994 with regard to "all other 
duties or charges of any kind" .98 Both parties also argue that the measure suspended  
India's most-favoured  nation (MFN) obligation under Article  I:1 of the GATT  1994.99 India 
                                                
94 Customs Tariff Act, (Exhibits JPN -1/IND -1), Section 8B, pp.  10-11. See also Safeguard Rules, 
(Exhibits JPN -2/IND -2), p.  9. 
95 Final Findings, (Exhibits JPN-11/IND -11), section R, p.  208. See also Notification imposing a definitive 
safeguard measure, (Exhibits  JPN-13/IND -13), p.  5. 
96 Customs Tariff Act, (Exhibits JPN -1/IND -1), Section 8B(3), pp.  10-11. 
97 Australia's  third-party submission, para.  15; third -party response to Panel question  No. 3, 
paras.  3.1-3.4; European Union's  third-party submission, paras.  22-23 and 25; and third -party statement, 
paras.  8-17. 
98 Japan's  response to Panel question No. 11, para.  4; second written submission, paras.  279-283; 
India's  first written submission,  para. 344; opening statement at the first meeting of the Panel, para.  44; 
response s to Panel question No. 11(a) and No.  91; and opening statement at the second meeting of the Panel, 
paras.  5-6. 
99 Japan's  response s to Panel question No. 11, para.  5, and No. 80, paras.  19-23; second written 
submission, paras.  279 and 284 -285; India's  response s to Panel question Nos. 11(a), 80, 83, and 91; and 
opening statement at the second meeting of the Panel, paras.  5-6. 
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  additionally asserts that the measure also suspend ed India's obligations under paragraphs 4, 8, 
and 12 of Article  XXIV of the GATT 1994.100 Japan disagrees that the measure resulted  in a 
suspension of obligations under Article  XXIV of the GATT 1994.101 
7.45.   We recall in this regard the Appellate Body 's indication that one of  the constituent features of 
a safeguard is that the measure suspends, in whole or in part, a GATT  obligation (or withdraws or 
modifies a GATT concession).102 Moreover, for a measure to be a safeguard, the suspension of the 
relevant GATT obligation or the wi thdrawal or modification of a tariff concession must be done to 
pursue a specific objective, namely preventing or remedying serious injury to the Member 's domestic 
industry.103 We will accordingly consider the specific GATT obligations that India allegedly s uspended 
by applying the measure at issue.  
7.4.3.1   Article  II:1(b) of the GATT 1994  
7.46.   We have noted above the text of Article  II:1(b) of the GATT 1994 . The first sentence of this 
provision  prohibits levying of ordinary customs duties in excess of the bindings set fo rth in the 
schedule of concessions of the importing Member . The second sentence of Article  II:1(b) prohibits 
the levying of "other duties or charges of any kind " imposed on or in connection with importation in 
excess of those imposed on the date of entry i nto force of the GATT 1994 or those directly and 
mandatorily required to be imposed thereafter by legislation in force in the importing Member on 
that date. The Understanding on the Interpretation of Article  II:1(b) of the General Agreement on 
Tariffs and Trade 1994 provides that the importing Member had to record in its schedule of 
concessions any other duties or charges a pplied on the date of entry into force of the GATT 1994 or 
which had to be applied directly and mandatorily under legislation in force o n that date.  
7.47.   Article  II:2 contains a list of measures which are carved out from the obligation in 
Article  II:1(b)  and may be imposed on the importation of any product, which include s (i) charge s 
equivalent to internal tax es levied on like domestic product s or in respect of articles  from which the 
imported product has been manufactured ; (ii) anti-dumping or countervailing dut ies; and (iii) fees 
or other charges commensurate with the cost of services rendered.  Safeguard measures or the 
duties resulting from s uch safeguard measures are not carved out by Article  II:2 from the obligations 
in Article  II:1(b) . 
7.48.   As stated by the panel on Dominican Republic – Safeguard Measures : 
The use of the expression " all other duties or charges of any kind imposed on or in 
connec tion with the importation" in Article  II:1(b), second sentence, suggests that the 
prohibition covers any duty or charge of any kind on or in connection with the 
importation that is not an ordinary customs duty. [146] In other words, the category of 
other du ties or charges under Article  II:1(b), second  sentence, is a residual one 
covering all duties or charges on or in connection with the importation that are not 
ordinary customs duties and which are not expressly provided for in Article  II:2 of the 
GATT 1994 .104 
146 Save for certain exceptions, such as duties or charges applied or mandatorily required to be 
applied on the date of the agreement. See in this connection the provisions of the Understanding 
on the Interpretation of Article  II:1(b) of the General Agreement on Tariffs and Trade 1994.  
7.49.   We have already concluded that the duties resulting from the measure at issue do not 
constitute " ordinary customs duties " in the sense of Article  II:1(b) of the GATT 1994 . We also note 
that those duties do not correspon d to any of the measures listed in Article  II:2 of the GATT  1994. 
To the extent that those duties were imposed on imports of the product concerned into the territory 
                                                
100 India's first written submission; para. 117; re sponse s to Panel question Nos. 11(a), 20, 86, and 91 ; 
and opening statement at the second meeting of the Panel, paras.  5-6 and 8 . 
101 Japan's  second written submission, para. 286; comments on India's  responses to Panel question 
No. 86, para.  22, and No.  125, paras.  77-78. 
102 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60. 
103 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.56. 
104 Panel Report, Dominican Republic – Safeguard Measure s, para.  7.79. (emphasis original; some 
fns omitted)  
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  of India, they constituted " other duties or charges … imposed on or in connection with … 
importation ". We also note that the measures at issue are not recorded in India 's Schedule of 
Concessions as other duties or charges that were applied on the date of entry into force of the 
GATT  1994 or which had to be applied directly and mandatorily under  legislation in force on that 
date.105 Consequently, the imposition of the duties resulting from the measure at issue to imports 
of the product concerned into the territory of India constituted a suspension of India 's obligations 
under Article  II:1(b) , secon d sentence, of the GATT 1994 . 
7.50.   The remaining question is whether the duties imposed by India, which result ed in a suspension 
of Article  II:1(b) of the GATT 1994 , were adopted to prevent or remedy serious injury to 
India's domestic production. Again, the sta rting point is the manner in which India itself has 
characterized the measure at issue.  
7.51.   As noted above, the measure at issue was imposed by India 's Ministry of Finance pursuant to 
legislation that authorizes the Central Government to impose safeguard dutie s when it is satisfied 
that products are imported into India in such increased quantities and under such conditio ns so as 
to cause or threaten  to cause serious injury to domestic ind ustry.106 Moreover , as described in the 
Ministry of Finance 's decision o f 29 March  2016 adopting  the definitive safeguard measure, th is 
measure was imposed on the basis of a conclusion from the national competent authority that t he 
increased imports of the product concerned into India had caused serious injury and were 
threaten ing to cause serious injury to the domestic producers of the product concerned.107 
7.52.   The design, structure, and operation of the measure at issue confirm this aspect. The measure 
resulted in the imposition by the Indian Government of temporary duties on the im portation of the 
subject products of up to 20% ad valorem , additional to the applicable tariffs.108 The level and form 
of the duties corresponded to the recommendation made by the Indian competent authority, which 
was based in turn on its estimation of  "the minimum required to protect the interests of the domestic 
industry", by considering the average cost of sales by the domestic producer of the product 
concerned, after allowing a reasonable return.109 The Indian competent authority also noted that the 
domesti c industry had submitted "detailed adjustment plans… which [focused] on cost reduction, 
optimum utilization and expansion of production capacities which will enable them to adjust to the 
international competition" .110 The design, structure, and operation of the measure at issue suggest 
to us that the central aspect of that measure is the imposition of specific duties through which India 
sought to remedy an alleged serious injury to its domestic industry and to prevent a threat of further 
serious injury.  
7.53.   Accordingly, we find that the suspension of Article  II:1(b) of the GATT 1994 by India was 
designed to prevent or remedy serious injury to India 's domestic production.  
7.4.3.2   Article  I:1 of the GATT 1994  
7.54.   Japan and India consider that the challenged measure also suspended India 's MFN obligation 
under Article  I:1 of the GATT 1994, because India excluded certain developing countries from the 
application of the duties resulting from the measure at issue, and thus granted an advantage that 
was not accorded immediately a nd unconditionally to the like pr oducts originating in other 
WTO Members.111 
7.55.   Article  I of the GATT 1994 is entitled General Most -Favoured -Nation Treatment. In its 
paragraph 1 it provides as follows:  
                                                
105 Excerpt from India's  schedule of concessions with respect to customs heading 7208, 
(Exhibit  IND-21); India's  opening statement at the first meeting of the Panel, para.  44. See also 
Japan 's first written submission, para. 520; second written submission, para. 270; opening statement at the 
first meeting of the Panel, para.  113; and  response to Panel question No.  11, para. 4. 
106 See para. 7.41 above.  
107 See para. 7.42 above.  
108 Notification imposing a definitive safeguard measure, (Exhibits  JPN-13/IND -13), p. 5. 
109 Final Findings, (Exhibits JPN-11/IND -11), section R, p. 209. 
110 Final Findings, (Exhibits JPN-11/IND -11), section J, p p. 203-204. 
111 Japan 's responses to Panel question No.  11, para. 5, and No.  80, paras.  19-23; second written 
submission, paras.  279 and 284 -285; India 's responses to question Nos. 11(a) , 80, 83 and 91; and opening 
statement at the second meeting of the Panel, paras.  5-6. WT/DS518/ R 
 
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  With respect to customs duties and charges of any kind impo sed on or in connection 
with importation or exportation or imposed on the international transfer of payments 
for imports or exports, and with respect to the method of levying such duties and 
charges, and with respect to all rules and formalities in connect ion with importation and 
exportation, and with respect to all matters referred to in paragraphs 2 and 4 of 
Article  III,* any advantage, favour, privilege or immunity granted by any [Member]  to 
any product originating in or destined for any other country sh all be accorded 
immediately and unconditionally to the like product originating in or destined for the 
territories of all other [Members] . 
7.56.   Section 8B of the Customs Tariff Act, 1975 , provides that:  
[No safeguard] duty shall be imposed on an article originating from a de veloping 
country so long as the share of imports of that article from that country does not exceed 
three per cent or where the article is originating from more than one developing 
countries … so long as the aggregate of the imports fro m all such countries taken 
together does not exceed nine per cent of th e total imports of that article into India.112 
7.57.   The same provision notes that, for the purpose of that section, "'developing country ' means 
a country notified by the Central Government in the Official Gazette".113 The list of developing 
countries for the purposes of safeguard investigations (which includes 132 countries) was provided 
in Notification  No. 19/2016 published by the Ministry of Finance on 5 February 2016.114 
7.58.   In the Final Findings, the Indian competent authority noted that it had examined the share of 
imports from developing countries during the period of investigation ( POI). It stated that developing 
countries had less than 3% individually and 9% collectively o f total imports into India,  apart from 
China and Ukraine whose shares were 24% and 4% of total imports respectively. The  Indian 
competent authority concluded that all developing countries listed in Notification  No. 19/2016 , 
except for China and Ukraine, should be excluded from the application of the measure at issue.115 
The Ministry of Finance notification of 29 March  2016, imposing  the definitive safeguard measure, 
provided that:  
Nothing contained in this notification shall apply to imports of subject g oods from 
countries notified as developing countries under clause (a) of sub -section (6) of section 
8B of the Customs Tariff Act, other than [the] People 's Republic of China and Ukraine.116 
7.59.   India has argued that its exclusion of developing countries from the  application of the measure 
at issue was done pursuant to Article  9.1 of the Agreement on Safeguards.117 The provision cited by 
India, entitled Developing Country Members, provides  as follows:  
Safeguard measures shall not be applied against a product origina ting in a developing 
country Member as long as its share of imports of the product concerned in the 
importing Member does not exceed 3  per cent, provided that developing country 
Members with less than 3  per cent import share collectively account for not mo re than 
9 per cent of total imports of the product concerned.  
7.60.   Japan argues that the fact that imports from Ukraine and C hina are subject to the measure  
at issue due to their significant market share s indicates that India selected the sources of impor ts 
to be subject to the measure  with a view to preventing or remedying serious injury .118 
7.61.   It is an undisputed fact that the measure at issue excluded imports originating in certain 
developing countries from the application of the resulting duties. This exclusion r esulted in 
favourable treatment for imports from those countries that was not accorded immediately and 
unconditionally to the like product s originating in the territories of all other Members. This aspect a s 
                                                
112 Customs Tariff Act, (Exhibits JPN -1/IND -1), Section 8B(1), p.  10. 
113 Customs Tariff Act, (Exhibits JPN -1/IND -1), Section 8B(6)(a), p.  11. 
114 Notification No. 19/2016 -Customs  (5 February 2016 ), (Exhibits JPN -3/IND -3). 
115 Final Findings, (Exhibits JPN-11/IND -11), section M, p.  206. See also ibid. section R(b), p.  209. 
116 Notificatio n imposing a definitive safeguard measure, (Exhibits  JPN-13/IND -13), p.  7. 
117 India's first written subm ission, paras.  342-343. 
118 Japan's  second written submission, para.  285; response to Panel question No. 11, para.  5. WT/DS518/ R 
 
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  a matter of fact resulted in a suspension by India of the general MFN treatment provided for in 
Article  I:1 of the GATT 1994 . 
7.62.   We have noted, however, that the mere suspension of a GATT obligation is not sufficient to 
characterize a measure as a safeguard. To constitute a safeguard, the susp ension of the 
GATT  obligation must be done with the objective of preventing or remedying serious injury to the 
domestic production. In this respect, neither the Ministry of Finance 's notification of 29 March  2016, 
imposin g the definitive safeguard measure, nor the findings by the Indian competent authority, 
indicate that the exemption of imports from certain developing countries from the application of the 
duties was designed to prevent or remedy serious injury. Before the  Panel, India has argued instead 
that this exclusion was done to comply with Article  9.1 of the Agreement on Safegua rds.119 Indeed, 
the language of the legislation on which India based the exemption of imports fr om certain 
developing countries (namely, Section 8B of the Customs Tariff Act, 1975) closely reflects the 
language in Article  9.1 of the Agreement on Safeguards. The exemption of certain countries from 
the application of the duties resulting from the measure at issue has the result of allowing more 
imports of the subject products into India 's territory for the purpose of complying with 
India's obligation under Article  9.1 of the Agreement on Safeguards.  
7.63.   Accordingly, the suspension of Article  I:1 of the GATT 1994 entailed by the exemption of 
certain cou ntries from the application of the duties resulting from the measure at issue was not 
designed to prevent or remedy serious injury to India 's domestic industry.  
7.4.3.3   Article  XXIV of the GATT 1994  
7.64.   India also asserts that the measure at issue suspended its obliga tions under Article  XXIV of 
the GATT  1994, specifically Articles  XXIV:4, XXIV:8, and XXIV:12 , with respect to the free  trade 
agreements (FTAs) subscribed with the Republic of Korea and Japan.120 "In India 's view, compliance 
with FTAs entered by India with Ko rea and Japan under the aegis of Article  XXIV of the GATT, 1994 
is an 'obligation ' under the GATT, 1994."121 India refers to the statement in the Final Findings that 
the bilateral safeguard action under the respective FTAs limits the safeguard duties only to a level 
not exceeding MFN rates, which would not be sufficient to mitigate the serious injury suffered by the 
domestic industry.122 Japan replies that Article  XXIV does not impose an obligation on Members to 
either establish a customs union or free -trade area or to apply a particular rate of duty on imports 
of the product concerned from certain FTA partners.123 
7.65.   We note that in 2009 India and Japan entered into to a Comprehensive Economic Partnership 
Agreement, which came into effect on 1 August 2011 (India -Japan CEPA). India is also a party to a 
Comprehensive Economic Partnership Agreement with Korea, which entered  into force on 
1 January  2010 (India -Korea CEPA).124 Both agreements provide that the duties for the product s 
concerned shall be reduced or eliminated. In the Final Findings, the Indian competent authorit y 
explained in this way its recommendation that import s of the products concerned from Korea and 
Japan be included in the safeguard measure : 
[I]t is immaterial that imports from Korea RP and Japan increased due to low customs 
duty under the respective FTAs. Imports from these two countries have occurred in 
huge quantities in the most recent period and these imports are at very low prices 
causing serious injury to the domestic industry. Further, it is the discretion of the 
Government of India to explore bilateral mechanisms under the respective FTAs or 
adopt a general safeguard measure in this case. Both the FTAs nowhere mention that 
India is obligated to explore bilateral mechanisms first and only after failure of such 
                                                
119 India's first written submission, paras. 342-343; opening statement at the first meeting of the Panel, 
para. 42. 
120 India's first written submission, para. 117; response s to Panel question Nos. 11(a), 20, 86, and 91; 
and opening statement at the second meeting of the Panel, paras.  5-6 and 8 . 
121 India's response  to Panel question No.  20. 
122 India's first written submission, para. 117 (referring to Final Findings, (Exhibit IND -11), para. 55, 
pp. 200-201). 
123 Japan 's second written submission, para. 286. See also comments on India's  responses to Pa nel 
question No.  86, para.  22, and No.  125, para.  78. 
124 Japan 's first written submission, paras.  50-53. See also  WTO regional trade agreements information 
system, available at  http://rtais .wto.org/UI/PublicAllRTAList.aspx  (accessed 15 July 2018).  
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  mechanisms can adopt a general safeguard measure. The imports from non -FTA 
countries had also  significantly increased, therefore, safeguard action under the FTA 
would have left the door open for non -FTA countries to further increase their exports. 
Secondly, the safeguard action on the FTA limits the safeguards duties only to the level 
not exceedin g the M FN rates, which is not by itself sufficient to mitigate the present 
situation. It may be noted that these FTAs have specific provisions that allow India to 
impose general safeguard duty. The only exception under [the Agreement on 
Safeguards]  and Saf eguard Duty Rules is exclusion of developing countries whose 
individual share in imports is below 3% and whose aggregate share in imports is below 
9%. Korea RP and Japan do not fall under this exception, as both of them are developed 
countries.125 
7.66.   Article  XXIV of the GATT 1994 contains rules applicable to customs unions and free -trade 
areas of which WTO Members are part. In its relevant sections, this provision states:  
4. The [Members]  recognize the desirability of increasing freedom of trade by the 
developme nt, through voluntary agreements, of closer integration between the 
economies of the countries parties to such agreements. They also recognize that the 
purpose of a customs union or of a free -trade area should be to facilitate trade between 
the constituent  territories and not to raise barriers to the trade of other [Members]  with 
such territories.  
5. Accordingly, the provisions of this Agreement shall not prevent, as between the 
territories of [Members] , the formation of a customs union or of a free -trade a rea or 
the adoption of an interim agreement necessary for the formation of a customs union 
or of a free -trade area; Provided that: 
… 
(b) with respect to a free -trade area, or an interim agreement leading to 
the formation of a free -trade area, the duties and other regulations of 
commerce maintained in each of the constituent territories and applicable 
at the formation of such free -trade area or the adoption of such interim 
agreement to the trade of [Members] not included in such area or not 
parties to such  agreement shall not be higher or more restrictive than the 
corresponding duties and other regulations of commerce existing in the 
same constituent territories prior to the formation of the free -trade area, 
or interim agreement as the case may be; and  
(c) any interim agreement referred to in sub -paragraphs (a) and (b) 
shall include a plan and schedule for the formation of such a customs union 
or of such a free -trade area within a reasonable length of time.  
8. For the purposes of this Agreement:  
 … 
(b) A free-trade area shall be understood to mean a group of two or 
more customs territories in which the duties and other restrictive 
regulations of commerce (except, where necessary, those permitted under 
Articles  XI, XII, XIII, XIV, XV and XX) are eliminated on substantially all 
the trade between the constituent territories in products originating in such 
territories.  
                                                
125 Final F indings, (Exhibits JPN-11/IND -11), para.  55, p.  201. 
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  12. Each [Member]  shall take such reasonable measures as may be available to it to 
ensure observance of the provisions of this Agreement by the reg ional and local 
governments and authorities within its territories.126 
7.67.   As indicated by the Appellate Body in Turkey – Textiles  "Article  XXIV [of the GATT 1994] may, 
under certain cond itions, justify the adoption of a measure which is inconsistent with certai n other 
GATT provisions, and may be invoked as a possible 'defence ' to a finding of inconsistency ".127 The 
chapeau  of Article  XXIV:5 provides that the obligations contained in the GATT 1994 shall not prevent 
the formation of such customs union s or free -trade  areas. According to this provision, however:  
Article  XXIV can justify the adoption of a measure which is inconsistent with certain 
other GATT provisions only if  the measure is introduced upon the formation of a customs 
union, and only to the e xtent that t he formation of the customs union would be 
prevented if the introduction of the measure w ere not allowed .128 
7.68.   A Member party to a free-trade area  may invoke Article  XXIV to defend  a measure 
incompatible with an obligation under the GATT 1994 if it can demonst rate that two conditions are 
met (i) the free -trade area must comply with the requirements in paragrap hs 8(b) and 5(b) of 
Article  XXIV; and (ii) the measure at issue must be necessary for the formation or functioning of the 
free-trade area, in the sense th at the formation or proper functioning of the free -trade area would 
be prevented if the measure at issue was not allowed .129 
7.69.   In other words, any obligation that India may have, under the FTAs entered with Korea and 
Japan, to apply a particular rate  of duties or to refrain from imposing specific measures to imports 
of those countries does not arise from the GATT 1994 but from the FTAs in question. As noted by 
the panel in Indonesia – Iron or Steel Products : 
Article  XXIV of the GATT 1994 does not impo se an obligation on Indonesia to apply a 
particular duty rate on imports of galvalume from its [regional trade agreement s] 
partners. Article  XXIV of the GATT 1994 is a permissive  provision, allowing Members to 
depart from their obligations under the GATT t o establish a customs union and/or free 
trade area, in accordance with specified procedures. Article  XXIV does not impose any 
positive obligation on Indonesia either to enter into free trade agreements (FTAs) or to 
provide a certain level of market access to its FTA partners through bound tariffs. 
Indonesia 's obligation to impose a tariff of 0% on imports of galvalume from its 
[Association of Southeast Asian Nations ] trading partners is established in the 
[Association of Southeast Asian Nations ] Trade in Go ods Agreement, not in Article  XXIV. 
Similarly, the establishment of a maximum tariff of 10% on imports of galvalume from 
Korea is found in the [Association of Southeast Asian Nations ]-Korea Free Trade 
Agreement, not in Article  XXIV. In other words, Indones ia's 0% and 10% tariff 
commitments are obligations assumed under the respective FTAs, not the WTO 
Agreement. There is, therefore, no basis for Indonesia 's assertion that Article  XXIV of 
the GATT 1994 precluded its authorities from raising tariffs on import s of galvalume and 
that the specific duty, thereby, "suspended" "the GATT exception under Article  XXIV" 
for the purpose of Article  XIX:1(a).130 
7.70.   More specifically, Article  XXIV:4 , which is one of the provisions cited by India, reflects only 
the recognition by  WTO Members that (i) freedom of trade can be  increased  through preferential 
trade agreements between Members ; and (ii) the purpose of preferential trade agreements (customs 
union and free-trade area s) should be to facilitate trade between the parties and not to raise barriers 
to the trade of other Members . This language may provide context when interpreting other 
provisions, but does not contain any positive obligation for WTO Members.  
7.71.   Similarly, Article  XXIV: 8, another provision cited by India, defines wh at shall be understood 
by a free -trade area for the purpose of the agreement. Again t his language provides important 
context when interpreting other provisions. The Member who attempts to justify a GATT -inconsistent 
                                                
126 Emphasis original.  
127 Appellate Body Report, Turkey – Textiles , para.  45. 
128 Appellate Body Report, Turkey – Textiles , para.  46. 
129 Appellate Body Report, Turkey – Textiles , paras.  58-59. 
130 Panel Report, Indonesia – Iron or Steel Products , para. 7.20. ( emphasis original; fns  omitted)  WT/DS518/ R 
 
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  measure by invoking Article  XXIV has the  burden of demonstrating that the free -trade area at issue 
complies with the requirements in Article  XXIV:8(b). Article  XXIV: 8, however,  does not contain any 
positive obligation for WTO Members.  
7.72.   In contrast with other sections in Article  XXIV, paragraph 12  contains a positive obligation. It 
provides that Members shall take all reasonable measures available to ensure that regional and local 
authorities comply with obligations  under the GATT 1994. The measure at issue, however, was 
adopted by India 's Central Government. There is no indication that the measure resulted in regional 
or local authorities engaging in any conduct that was inconsistent with India 's obligations under the 
GATT 1994. Accordingly, the issue of whether India failed to take all reasonable measures available 
to it to ensure that regional and local authorities complied  with obligations  under the GATT 1994 has 
not arisen in this case.  
7.73.   Accordingly, India has not demonstrated that the measure at issue resulted in a suspension  
of its obligations under Article  XXIV of the GATT  1994, specifically under Articles  XXIV:4, XXIV:8, 
and XXIV:12 . 
7.4.4   Conclusion  
7.74.   For the reasons explained above, the Panel concludes that the measure at issue resulted in a 
suspension of obligations incurred by India under the GATT 1994 , namely Article  II:1(b), 
second  sentence. The measure that resulted in this suspension of GATT obligations was adopted by 
India as a temporary emergency action, designed to remedy an alleged situation of serious injury 
to the dome stic industry brought about by an increase in imports of the subject products. In light of 
those aspects, we find that the measure at issue constitutes a safeguard measure within the meaning 
of Article  1 of the Agreement on Safeguards. Accordingly, the pro visions of Article  XIX of the 
GATT  1994 and the Agreement on Safeguards are applicable to the examination that the Panel has 
to make of the claims raised in the present dispute.  
7.75.   We have already noted that the manner in which a Member 's domestic law charact erizes its 
own measures is not dispositive of the characterization of such measures under WTO law. Likewise, 
the manner in which a Member conducts an investigation or notifies measures to the WTO is not 
dispositive of the legal characterization of the meas ure. However, all these factors may be relevant 
elements when considering a measure 's design and structure. In this regard, we find that the 
following elements confirm our conclusion. First, the fact that the Indian competent authority 
imposed the measure at issue and conducted the respective investigation under domestic legislation 
that authorizes the Government to impose duties on imports after determining that relevant products 
are being imported into India in increased quantities and under conditions so  as to cause or threaten 
to cause serious injury to the domestic industry . Second, the fact that the measure at issue had the 
typical characteristics of a safeguard measure, including (i) that it resulted in duties imposed on 
imports of the like or directl y competitive product to that produced by the affected domestic industry ; 
(ii) that the duties were only temporary ; (iii) that the measure was subject to a progressive 
liberalization at periodic intervals ; and (iv) that imports from certain developing coun tries that did 
not exceed a threshold were exempted from the duties. Third, the fact that India notified this 
investigation and measures to the WTO Committee on Safeguards pursuant to the provisions in 
Article  XIX of the GATT 1994 and in the Agreement on S afeguards . 
7.5  Whether India acted inconsistently with Article  XIX:1(a) of the GATT  1994  with 
respect to the existence of "unforeseen developments"  and the effect of GATT  obligations  
7.5.1   Introduction  
7.76.   Japan claims that India acted inconsistently with Article  XIX:1(a) of the GATT 1994 by failing 
to demonstrate:  
a. the existence of "unforeseen developments" and a logical connection between the 
unforeseen developments and the increase in imports causing or threatening to cause 
serious injury to the domestic industry ; and  WT/DS518/ R 
 
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  b. a logical connection between the effect of the obligations incurred under the GATT 1994 
and the increase in imports causing or threatening to cause serious injury to the domestic 
industry.  
7.77.   Before addressing Japan 's claims, we recall the relevant fact s regarding the Indian competent 
authority 's determination on the unforeseen developments and the effect of the obligations incurred 
under the GATT 1994 and set out our understanding of Article  XIX:1(a) of the GATT  1994.  
7.5.2   The Indian competent authority 's determination  
7.78.   Both the Preliminary and Final Findings of the Indian competent authority address the issue 
of "unforeseen developments" and "the effect of the obligations incurred" under the GATT 1994.  
7.79.   With respect to "unforeseen developments", the Indian com petent authority observed that 
the world production capacity of crude steel was 2,351 million  tonnes  as of 31 December 2014, 
which exceeded global demand by almost 30%.131 It further noted that the production capacity in 
early 2015 was 1,055 million tonnes  for the non -Chinese industry and 991 million tonnes  for China, 
for a total of 2.05 billion tonnes . When compared to steel production of 1.66  billion tonnes in 2014 , 
there were 382 million tonnes  of excess global steel production capacity.132 
7.80.   The Indian compet ent authority stated that, specifically, China, Russia, Ukraine, Japan, and 
Korea developed "huge capacities" to meet the demand for steel in developed countries. At the same 
time, the traditional importers of steel such as the United  States  and the Europe an Union reduced 
their dependence on imported steel. This fact induced exporters to look for other export markets 
with increasing demand and high domestic prices.133 The latter included India, where demand for 
steel had increased by 3.1%. The Indian competen t authority considered that India became "the 
natural choice" for steel surplus manufacturers due to its increasing demand and high domestic 
prices.134 
7.81.   The Indian competent authority also noted that the Russian currency had depreciated due to 
a drop in  oil prices and Russian steel exporters experienced "high realization for their exports". At 
the same time, Russian exporters faced restricted access to their traditional export markets, such 
as the European Union and Ukraine.135 The Indian competent authori ty further noted that , after a 
sustained growth rate for many decades, the demand for steel in China had decreased due to a 
slowdown in its infrastructure sector, which was the biggest consumer of steel in China. It considered 
that this situation was unlik ely to change in the near future.136 The Indian competent authority 
further observed that, due to its political crisis, Ukraine 's currency had depreciated by 60% in 2014. 
The depreciation of the Ukrainian currency and the  resulting  low export prices for Ukra inian steel, 
together with the Russian and Chinese sales, put further pressure on the global steel market.137 The 
Indian competent authority concluded that the above events were unforeseen developments that 
had resulted in increased imports of the product co ncerned into India.138 
7.82.   With respect to the "the effect of the obligations incurred" under the GATT 1994, the Indian 
competent authority examined whether the increase in imports had occurred as a result of the effect 
of the obligations incurred by India under  the GATT  1994.139 The Indian competent authority stated 
that, according to India 's Schedule of Concessions, the bound rate on the product concerned was 
                                                
131 Preliminary Findings, (Exhibit s JPN-7/IND-7), para. 19, p. 14. 
132 Preliminary Findings, ( Exhibit s JPN-7/IND-7), para. 24, p. 15 (referring to World Steel Dynamics ). 
133 Preliminary Findings, ( Exhibit s JPN-7/IND-7), para. 18, p. 14; Final Findings, 
(Exhibits  JPN-11/IND -11), para. 75, p. 204. 
134 Preliminary Findings, ( Exhibit s JPN-7/IND-7), paras.  18 and 20, p. 14; Final Findings, 
(Exhibits  JPN-11/IND -11), para. 75, p. 204. 
135 Preliminary Findings, ( Exhibit s JPN-7/IND-7), para. 21, p. 14; Final Findings, 
(Exhibit s JPN-11/IND-11), para. 76, p. 204. 
136 Preliminary Findings, ( Exhibit s JPN-7/IND-7), para. 23, pp. 14-15; Final Findings, 
(Exhibit s JPN-11/IND-11), para. 78, p. 204. 
137 Preliminary Findings, ( Exhibit s JPN-7/IND-7), para. 22, p. 14; Final Findings, 
(Exhibit s JPN-11/IND-11), para. 77, p. 204. 
138 Preliminary Findings, ( Exhibit s JPN-7/IND-7), para. 24, p. 15; Final Findings, 
(Exhibit s JPN-11/IND-11), para. 79, pp. 204-205. 
139 Final Findings, (Exhibit s JPN -11/IND-11), paras.  80-81, p. 205. 
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  40% ad valorem . It noted that India reduced its applied rates on products in many sectors, including 
the steel sector and that the applied rate on th e product concerned was 7.5% in  2013-2015. The 
Indian competent authority concluded that "due to the effect of such low applied tariffs" and given 
the circumstances and market conditions present in that time the imports of the product concerned 
had increased in "sudden, sharp, significant manner into India" .140 
7.83.   Considering the above, the Indian competent authority concluded that "as a result of 
unforeseen developments and as an effect of obligations under GATT inclu ding tariff concessions", 
imports of the product concerned had increased in a sudden, sharp, significant and recent manner 
into India.141 
7.5.3   Article  XIX:1(a) of the GATT 1994  
7.84.   Article  XIX:1(a) reads as follows:  
If, as a result of unforeseen developments and of t he effect of the obligations incurred 
by a [Member] under this Agreement, including tariff concessions, any product is being 
imported into the territory of that [Member] in such increased quantities and under such 
conditions as to cause or threaten serious  injury to domestic producers in that territory 
of like or directly competitive products, the [Member] shall be free, in respect of such 
product, and to the extent and for such time as may be necessary to prevent or remedy 
such injury, to suspend the oblig ation in whole or in part or to withdraw or modify the 
concession.  
7.85.   Article  XIX:1(a) provides WTO Members with a right to apply a safeguard measure when, as 
a result of unforeseen developments and of the effect of the obligations incurred under the GATT, a 
product is being imported in such increased quantities and under such conditions as to cause or 
threaten to cause serious injury to the domestic industry producing like or directly competitive 
products.142 As noted by the panel in US – Steel Safeguards , pursuant to Article  XIX of GATT 1994 , 
when unforeseen developments have resulted in increased imports that are causing or threatening 
to cause serious injury to the relevant domestic industry,  WTO Members may limit market access  
by taking an otherwise WT O-inconsistent measure  and obtain temporary relief.143 
7.86.   The unforeseen developments and the effect of GATT obligations are not "independent 
conditions" for the application of safeguard measures, additional to the conditions set forth in the 
second clause of Article XIX:1(a) and reiterated in Article  2.1 of the Agreement on Safeguards. 
Rather, these two elements constitute "circumstances" that must be demonstrated, as a matter of 
fact, to apply safeguard measures consistently with Article  XIX:1(a). In this sens e, the 
Appellate  Body stated that there is a "logical connection" between the circumstances described in 
the first clause – "as a result of unforeseen developments and of the effect of the obligations incurred 
by a Member" – and the conditions for the appl ication of safeguard measures set forth in the second 
clause of Article  XIX:1(a), such as a demonstration of an import surge, serious injury , and a causal 
link.144 
7.87.   A WTO Member imposing a safeguard measure must demonstrate the existence of unforeseen 
develop ments and the effect of GATT 1994 obligations through reasoned and adequate explanations 
contained in its published report.145 These explanations must show that the identified unforeseen 
developments have resulted in increased imports causing or threatening to cause serious injury to 
the relevant domestic industry, and that one or more obligations under the GATT  1994 limit the 
importing Member 's ability to prevent or offset the effect resulting from such increased imports.  
                                                
140 Final Findings,  (Exhibit s JPN -11/IND-11), para. 81, p. 205. 
141 Final Findings,  (Exhibit s JPN -11/IND-11), para. 82, p. 205. 
142 Appellate Body Report, US – Steel Safeguards , para. 264; Panel Rep orts, US – Steel Safeguards , 
para. 10.9. 
143 Panel Reports, US – Steel Safeguards , para.  10.9; See also Appellate Body Report, Argentina – 
Footwear (EC) , para.  94. 
144 Appellate Body Report s, Korea – Dairy , para. 85; Argentina – Footwear (EC) , para. 92. 
145 Appellate Body Report, US – Lamb , paras.  72 and 76.  
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  7.88.   The phrase "unforeseen developments"  means developments that were "unexpected" at the 
time the importing Member incurred the relevant GATT obligation.146 In US – Fur Felt Hats , the GATT 
panel stated that "unforeseen developments" should be interpreted to mean "developments 
occurring after the negotiation of the relevant tariff concession which it would not be reasonable to 
expect that the negotiators of the country making the concession could and should have foreseen at 
the time when the concession was negotiated" .147 In US – Steel Safeguards , the panel stated that 
the legal standard used to determine what constitutes unforeseen developments has subjective and 
objective elements. The subjective element relates to what constitute s unforeseen developments for 
a particular importing Member and it wil l vary depending on the context and circumstances. The 
objective element focuses on what negotiators could reasonably have had in mind when they 
incurred a GATT obligation (not what the specific negotiators had in mind).148 The competent 
authority 's publishe d report must discuss how the developments were unforeseen at the appropriate 
time, and why the increase in imports causing or threatening to cause serious injury to the domestic 
industry occurred as a result of those unforeseen developments .149 
7.89.   With respect  to the effect of a GATT 1994 obligation, the competent authority 's published 
report must demonstrate that a WTO Member imposing a safeguard measure is subject to an 
obligation (or obligations) under the GATT 1994 and explain how that obligation constrains  its ability 
to react to the import surge causing i njury to its domestic industry.  
7.5.4   The existence of unforeseen developments  
7.90.   Japan submits that India acted inconsistently with Article  XIX:1(a) by failing to demonstrate 
the existence of unforeseen developmen ts. Japan argues that , although the Preliminary and Final 
Findings include a section on unforeseen developments, the Indian competent authority failed to 
demonstrate why the developments identified in that section were unforeseen.150 Japan also argues 
that t he Indian competent authority did not explain whether all or some of the events mentioned in 
its determination were considered as unforeseen developments .151 Japan adds that the Final  Findings 
note that the identified developments were unforeseen by the dome stic industry , which does not 
prove that they were  necessarily unforeseen by India. Japan submits that under Article  XIX:1(a) the 
developments have to be unforeseen or unexpected for the importing country, rather than for its 
domestic industry.152 
7.91.   India resp onds that the Preliminary and Final Findings clearly indicate that the Indian 
competent authority considered a confluence of events or circumstances to constitute the 
"unforeseen developments".153 India points out that its competent authority referred to the  panel 
report in US – Steel Safeguards , which clarified that a confluence of events can form a basis for the 
unforeseen developments. India notes that Article  XIX:1(a) does not specify how a competent 
authority should demonstrate the existence of unforeseen developments. India refers to the 
Appellate Body 's statements in US – Lamb  to argue that a competent authority should demonstrate 
the existence of unforeseen developments as a "matter of fact" and to provide a "discussion", and 
not necessarily an "explanation", as to why the identified developments were "unforeseen" at the 
appropriate time.154 Finally, India submits that , although the Final Findings note that the domestic 
industry demonstrated the existence of unforeseen developments that had resul ted in an import 
surge, the conclusion regarding unforeseen developments is that of the competent authority.155 
                                                
146 Appellate Body Reports, Korea – Dairy , para. 86; Argentina – Footwear (EC) , para. 93. 
147 Report of the Intersessional Working Party on the Complaint of Czechoslovakia Concerning the  
Withdrawal by the United States  of a Tariff Concession under Article  XIX of the GATT ("Hatters ' Fur"),  
GATT/CP/106 (adopted 22 October 1951 ), para. 9. 
148 Panel Report s, US – Steel Safeguards , paras.  10.41 -10.43. 
149 Panel Reports, US – Steel Safeguards , para.  10.67.  
150 Japan 's first written submission, paras.  104-106, 108-112, and 116  (referring to Panel Report, 
Argentina – Preserved Peaches , paras.  7.23 and 7.33); second written submission, paras.  13-23. 
151 Japan 's first written submission, para. 107; second written submission, paras.  9-12. 
152 Japan 's first written submission, para. 113; second written submission, paras.  24-25. 
153 India's first written submission, paras.  70-72, 76, and 81(a) (referring to Panel Report s, US – Steel 
Safeguards , para. 10.99).  
154 India's first written s ubmission, paras.  79 and 81(b).  
155 India's first written submission, para. 81(g).  
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  7.92.   We first note that both parties agree that the text of Article  XIX:1(a) allows a competent 
authority to consider either a confluence of events or individual events as the unforeseen 
developments  provided for in Article  XIX:1(a) .156 This understanding is supported by the panel report 
in US – Steel Safeguards , referred by both parties, that a "confluence of developments can form the 
basis of 'unforeseen  developments ' for the purposes of Article  XIX of GATT 1994" .157 Japan argues , 
however,  that the Indian competent authority 's determination lacks an explanation on whether the 
identified events separately or together constitute unforeseen developments.  
7.93.   Both the Preliminary and Final Findings show that the Indian competent authority considered 
the simultaneous occurrence of developments or confluence of events as the "unforeseen 
developments"  provided for in Article  XIX:1(a) . In particular, t he Indian competen t authority , before 
analysing each of the events,  referred to the panel 's statement in US – Steel Safeguards  that "the 
confluence of several events can unite to form the bas is of an unforeseen development ".158 
7.94.   The Indian competent authority considered that major steel exporting countries (including 
China, Russia, Ukraine, Japan, and Korea) had significantly increased their production capacity to 
meet the demand in developed countries. According to the Preliminary  Findings, as of 
31 December  2014 the world crude steel capacity was in excess of global demand by almost 30%. 
The developed countries that traditionally were big importers of steel, including the United  States  
and the European Union, had reduced their dep endence on imported steel. After a "sustained growth 
rate" for many decades , China had experienced a drop in its domestic demand for steel. The findings 
also note that, a t the same time, the demand in India was growing and domestic prices were high, 
which made India a natural destination for steel exports from countries with high supply of steel 
products. In addition, the depreciation of the Russian and the Ukrainian currencies relative to the 
US dollar led to the lowering of export prices for steel from th ese countries, which put further 
pressure on the global steel market. Th ese findings  show that the Indian competent authority 
considered that the excess production capacity of steel , combined with the increased demand in 
India, declined demand in other maj or markets, and currency depreciation in Ukraine and Russia,  
were unexpected developments that allegedly led to the increase in imports into India.  
7.95.   Japan next argues that India did not explain  why the identified developments were 
unforeseen. Japan  submits that a mere statement that a given event constitutes an unforeseen 
development , without any explanation as to why such event is to be regard ed as an unforeseen 
development , is insufficient. According to Japan, while the Final Findings use several times the  words 
"unforeseen" or "unforeseen developments", they fail to provide any explanation as to why the 
reported events were indeed "unforeseen" at that time.159 As discussed above, the term "unforeseen 
developments" means changes that the importing Member could not have reasonably foreseen at 
the time when the relevant GATT  obligation was negotiated (in this case, at the end of the Uruguay 
Round, as of 1  January  1995). A competent authority must demonstrate in its published report, 
through reasoned and adequate  explanation, how these developments were unexpected or 
unforeseen.160 We note that Japan does not advance any arguments that any of the identified 
developments or confluence of these developments could have been foreseen by India. 
Japan 's argument focuses instead on the alleged lack of explanation by the Indian competent 
authority as to why the developments were unforeseen. Therefore, we will consider whether the 
Indian competent authority sufficiently explained its conclusion that the identified development s 
were unforeseen . 
                                                
156 Japan 's second written submission, para. 10; India 's first written submission, para. 72. 
157 The panel in US – Steel Safeguards  stated that:  
Article  XIX does not preclude cons ideration of the confluence of a number of developments as 
"unforeseen developments". Accordingly, the Panel believes that confluence of developments can 
form the basis of "unforeseen developments" for the purposes of Article  XIX of GATT 1994. The 
Panel is  of the view, therefore, that it is for each Member to demonstrate that a confluence of 
circumstances that it considers were unforeseen at the time it concluded its tariff negotiations 
resulted in increased imports causing serious injury.  
(Panel Report s, US – Steel Safeguards , para. 10.99) . 
158 Preliminary Findings, (Exhibits JPN -7/IND -7), paras.  14-17; Final Findings, (Exhibits JPN -11/IND -11), 
paras.  71-74. 
159 Japan's  first written submission, para.  112; second written submission, paras.  16-18. 
160 Panel Report, Indonesia – Iron or Steel Products , para. 7.51. 
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  7.96.   In its discussion of unforeseen developments, the Indian competent authority referred to the 
increase of production capacity in major exporting countries, the increase in demand in India,  and 
the decrease in demand in the European Union, the United  States , and China. Even though the 
changes in production capacity or demand are not necessarily extraordinary circumstances, and can 
occur as part of normal business cycles, the extent and timing of such  changes as well as the degree 
of their impact on the competitive situation in the market can be unforeseen.161 The 
Indian  competent authority observed that in 2014 the world production capacity of crude steel was 
2,351  million tonnes , which exceeded the glo bal demand by almost 30%.162 The production capacit y 
further increased significantly in 2015: "effective capacity figure for early  2015 is 1055 million tones  
[sic] for the non -Chinese industry and 991 million tones  [sic] for China, a total of 2.05 billion to nes 
[sic]. When compared to steel production in 2014 of 1.66 billion tones  [sic], there is 
382 million  tones [sic] of excess global steel making capacity" .163 These data indicate the significant 
extent and speed of changes in world production capacity  of ste el. Furthermore, the Indian 
competent authority found that the increase in production capacity occur red at the same time as 
other developments in the market. In particular, th e European Union and the United  States , which 
were "traditionally the biggest imp orters of steel", decreased their demand for imported steel. The 
Indian competent authority also referred to the decrease in the domestic demand in China and noted 
that China used to have a "sustained growth rate" for many decades , which indicates that the  drop 
in growth rate was unexpected. Finally, India could not reasonably have expected  the currency 
depreciations in Russia and Ukraine, which happened due to political and economic crises in these 
countries  that were  unrelated to the ordinary course of co mmerce.  
7.97.   In our view , it was reasonable for the Indian competent authority to find that an increase to 
such extent in production capacity , combined with high er domestic demand in India, decreased 
demand in several major markets, and that currency depreciation in Russia and Ukraine were 
unforeseen developments. We consider that negotiators could not reasonably have expected this 
confluence of events when India negotiated its tariff concessions. In light of the above reasons, we 
conclude tha t the Indian competent authority provided reasoned and adequate explanation as to 
why the identified developments were unforeseen.  
7.98.   Japan also argues that the Indian competent authority concluded that  the domestic industry, 
and not India,  did not foresee th e developments.  Japan refers to the Indian competent 
authority 's statement that "[t]he domestic industry has been able to demonstrate that the 
developments in the market for surge in imports of the [product under consideration] were 
unforeseen" .164 We reject  this argument, because, even if the Indian competent authority was 
supporting  arguments made by the domestic industry during the investigation , the Final Findings 
contain a statement by the authority and not by the domestic industry.  
7.99.   In light of the above , we find that Japan has failed to demonstrate that India did not identify 
events that represent a plausible set of unforeseen developments within the meaning of 
Article  XIX:1(a) of the GATT 1994.  
7.5.5   Logical connection between unforeseen  developments and the increased imports  
7.100.   We turn to considering Japan 's arguments that the Preliminary and Final Findings do not 
demonstrate that the identified unforeseen developments resulted in increased imports into India 
allegedly causing i njury to the domestic industry.  
                                                
161 In US – Fur Felt Hats , a GATT panel considered that the fact that hat styles had changed did not 
constitute an "unforeseen development" within the meaning of Article  XIX:1(a). However, "the de gree to which 
the change in fashion affected the competitive situation, could not reasonably be expected to have been 
foreseen by the United  States  authorities in 1947" . (Report of the intersessional Working Party on the 
complaint of Czechoslovakia concern ing the withdrawal by the United  States  of a tariff concession under 
Article  XIX of the GATT, GATT/CP/ 106 (adopted 22 October 1951 ), paras.  11-12). 
162 Preliminary Findings, (Exhibit s JPN-7/IND-7), para. 19, p. 14. 
163 Preliminary Findings, (Exhibit s JPN-7/IND-7), para. 24, p. 15. 
164 Japan 's first written submission, para. 113 (referring to Final F indings, (Exhibit JPN -11), 
para. 102(iii), p. 208). 
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  7.101.   Japan contends that India failed to demonstrate a "logical connection" between the 
unforeseen developments and the increase in imports of the product concerned into India.165 First, 
Japan argues that the Indian competent authority failed to explain how imports  of the product 
concerned increased "as a result" of the unforeseen developments.166 In this respect, Japan submits 
that the Indian competent authority should have examined how the unforeseen developments 
modified the competitive relationship between the imp orted and domestic products to the detriment 
of the latter and to such a degree as to result in an increase in imports causing serious injury to the 
domestic industry.167 Furthermore , Japan argues that the Indian competent authority should have 
conducted a c ountry -specific analysis of imports, given that certain unforeseen developments in this 
case relate to specific countries.168 Japan emphasizes that the Indian competent authority also failed 
to address any developments in Japan and Korea, which are the two largest exporting countries of 
the product concerned into India.169 Japan also argues that the Indian competent authority failed to 
demonstrate when the events identified as unforeseen developments occurred. According to Japan, 
the increased imports can be " a result of" unforeseen developments only if the latter have occurred 
before the imports started to surge. Japan argues that the Indian competent authority failed to 
indicate whether the unforeseen developments preceded the import surge, and thus failed to  
establish the link between the alleged unforeseen developments and the import surge.170 
7.102.   Second, Japan asserts that India examined the unforeseen developments with regard to 
steel in general and failed to consider the effect of unforeseen developments with r egard to the 
specific product concerned.171 Third, Japan submits that the Indian competent authority failed to 
provide any supporting data regarding the alleged unforeseen developments, including specific data 
regarding production capacities of the product c oncerned in the exporting countries and supporting 
evidence regarding depreciation of Russian and Ukrainian currencies.172  
7.103.   India argues that Article  XIX:1(a) does not require a competent authority to examine 
whether the unforeseen developments have modified  the conditions of competition between the 
imported and the domestic products. India considers that Japan reads into Article  XIX:1(a) an 
obligation that does not exist.173 India asserts that Article  XIX:1(a) only requires a competent 
authority to demonstrate  a logical connection between "unforeseen developments" and "increased 
imports", which was shown in the Indian competent authority 's determination.174 India submits that , 
in the circumstances,  a logical connection should be examined between the increased imp orts and 
the confluence of developments, and not with individual events which form the basis for the 
unforeseen developments.175 India disagrees with Japan that the complexity of the matter in the 
underlying investigation required more sufficient explanation . India considers that Japan failed to 
exercise its burden of proof to demonstrate that a more detailed analysis was necessary.176 
7.104.   India further submits that considering the global nature of safeguard measures, there is no 
requirement to examine the developm ents individually on a country -specific basis.177 India also 
argues that , in accordance with Article  XIX:1(a) , a competent authority has to demonstrate a logical 
connection between (i) the unforeseen developments , and (ii) the increased imports of specified 
product s. India disagrees that the unforeseen developments themselves should be connected to a 
                                                
165 Japan 's first written submission, paras.  114-116 and 118 (referring to Appellate Body Reports, 
Korea  – Dairy , para. 85; Argentina – Footwear (EC) , para. 92; and US – Steel Safeguards , para. 315; and 
Panel Reports, Argentina – Preserved Peaches , para. 7.23; and US – Steel Safeguards , para. 10.122).  
166 Japan 's first written submission, paras.  114-116 and 118 (referri ng to Appellate Body Reports, 
Korea  – Dairy , para. 85; Argentina – Footwear (EC) , para. 92; and US – Steel Safeguards , para. 315; and 
Panel Reports, Argentina – Preserved Peaches , para. 7.23; and US – Steel Safeguards , para. 10.122).  
167 Japan 's first writte n submission, paras.  85-86 and 117 -119 (referring to Panel Reports, US – Lamb , 
paras.  7.23-7.24; and US – Steel Safeguards , para. 10.115); second written submission, paras.  42-43. 
168 Japan 's first written submission, paras.  133 and 136; second written submission, paras.  44-48. 
169 Japan 's first written submission, paras.  134-135; second written submission, para. 47. 
170 Japan's  first written submission, paras.  137-141; second written submission, paras.  49-52. 
171 Japan 's first written subm ission, paras.  142-146; second written submission, paras.  53-62. 
172 Japan 's first written submission, paras.  147-151; second written submission, paras.  63-67. 
173 India's first written submission, para. 85; second written submission, paras.  9-10. 
174 India's first written submission, paras.  84-87 and 91.  
175 India's first written submission, para. 70. 
176 India's first written submission, paras.  88 and 93 -95. 
177 India's first written submission, paras.  86 and 90 (referring to Final Findings, (Exhibit IND -11), 
paras.  34-42, 102(i) , and 102(iii); and Preliminary Findings, (Exhibit IND -7), paras.  14-24 and 71 -82); 
response to Panel  question No. 88. 
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  specific product, since the increase in imports may result from such events as, for example, currency 
devaluation s, closure of downstream industries, or acts of war, which do not relate to a specific 
product.178 India also rejects Japan 's allegation that the unforeseen developments should necessarily 
coincide with the increased imports. India notes that Japan does not dispute the facts of the currency 
devaluation an d the increase in imports in the recent past.179 
7.105.   We begin by noting Japan 's argument that , since in this case there is no clear link between 
the unforeseen developments and the increase in imports, the Indian competent authority should 
have examined how the alleged unforeseen developments modified the conditions of competition 
between the domestic and imported products. We recall that Article  XIX:1(a) does not provide any 
guidance on how the relationship between unforeseen developments and the increase in imp orts 
shall be examined. The competent authorities enjoy certain discretion in choosing the appropriate 
method for examining the relationship between unforeseen developments and the increase in 
imports, tak ing into account the facts and circumstances of the  particular case. At the same time, a 
competent authority must provide in its published report a reasoned and adequate explanation 
supporting its conclusions on unforeseen developments. Therefore, the question before us is whether 
the Indian competent auth ority demonstrated in its published report, through a reasoned and 
adequate explanation, that unforeseen developments resulted in increased imports causing (or 
threatening to cause) serious injury to the domestic industry  of the products concerned . 
7.106.   We agre e with the panel 's statement in US – Steel Safeguards  that the enquiry as to whether 
an explanation regarding the relationship between unforeseen developments and the increase d 
imports is reasoned and adequate depend s on the factual circumstances of the pa rticular case. In 
particular, the panel stated that:  
In some cases, the explanation may be as simple as bringing two sets of facts together. 
However, in other situations, it may require much more detailed analysis in order to 
make clear the relationship th at exists between the unforeseen developments and the 
increased imports that are causing or threatening to cause serious injury. The nature of 
the facts, including their complexity, will dictate the extent to which the relationship 
between the unforeseen d evelopments and increased imports causing injury needs to 
be explained. The timing of the explanation, its extent and its quality are all factors that 
can affect whether a[n] explanation is reasoned and adequate.180 
7.107.   We will first consider Japan 's argument th at the Indian competent authority should have 
conducted a country -specific analysis of imports , considering that some of the alleged unforeseen 
developments relate to events in specific exporting countries. T he Indian competent 
authority 's examination of u nforeseen developments focused on changes in the global steel market 
(the difference between global production capacity and global demand) as well as on developments 
in certain exporting countries (such as China, Russia, and Ukraine). The developments in s pecific 
countries include the weakening of the Russian currency due to a drop in oil prices and the 
consequent increase of steel exports from Russia; the restricted access for Russian steel to its 
traditional export markets; the depreciation of the Ukraini an currency and consequent low priced 
imports from Ukraine; and a decrease in domestic demand for steel in China.181 
7.108.   The Indian competent authority hardly mentioned any developments relating to Korea and 
Japan,  even though these two countries were the two largest exporters of the product concerned. 
The share of imports from Japan was 37% in 2013 -2014, 31% in 2014 -2015, and 34% in the 
first quarter of 2015 -2016. The share of imports from Korea was 13% in 2013 -2014, 26% 
in 2014-2015, and 40% in 2015 -2016.182 Although the Indian competent authority mentioned Korea 
and Japan among countries that significantly increased their production capacity, no supporting data 
                                                
178 India's first written submission, para. 103. 
179 India's first written submission, para. 102. 
180 Panel Report s, US – Steel Sa feguards , para. 10.115.  
181 The share of imports from Russia was 4% in 2013 -2014, 6% in 2014 -2015, and 5% in the first 
quarter of 2015 -2016. The share of imports from Ukraine was 6% in 2013 -2014, 3% in 2014 -2015, and 4% in 
the first quarter of 2015 -2016. (Japan 's first written submission, para. 134 (referring to Revised Application, 
(Exhibit JPN -6); and Application , (Exhibit JPN -5)). See also Final Findings, (Exhibit s JPN-11/IND-11), 
section  XIII, para. k, p. 186. 
182 Japan 's first written submission, para. 134 (referring to Revised Application, (Exhibit JPN -6), and 
Application , (Exhibit JPN -5)). See also Final Findings,  (Exhibit s JPN-11/IND-11), section XIII, para. k, p. 186. 
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  regarding the increase in production capacity in Japan and Korea were provided in the Preliminary 
or Final Findings. The section on unforeseen developments does not discuss  further any development 
in Japan and Korea that may have led to the import surge from these countries into India. At the 
same time, the se ction on serious injury refers to the FTAs that India concluded with Japan and 
Korea. In particular, the India -Korea CEPA came into effect on 1  January 2010 and India -Japan CEPA 
came into effect on 1 August 2011.183 These FTAs provided for a gradual reductio n of applied duties 
for the product concerned originating from Korea and Japan. The reduced tariffs under the respective 
FTAs ranged from 0% to 3.75% during the POI, while the M FN duty rate was 10%.184 The Indian 
competent authority concluded that:  
[I]t is i mmaterial that imports from Korea RP and Japan increased due to low customs 
duty under the respective FTAs. Imports from these two countries have occurred in 
huge quantities in the most recent period  and these imports are at very low prices 
causing serious  injury to the domestic industry.185 
7.109.   In response to a question from the Panel, India stated that the lowering of duties under the 
respective FTAs was not considered part of the confluence of unforeseen developments, and that it 
instead referred to the effect  of the obligations incurred by India under the GATT 1994, namely 
Article  XXIV.186 As noted above, the lowering of tariff s for the product concerned originating from 
Korea and Japan is an obligation for India under the respective FTA s. Article  XXIV of the GA TT 1994 
does not impose an obligation on India to either enter into specific FTAs or to provide a certain level 
of customs duties to its FTA partners. India's acknowledgement that the significant volume of 
imports originating from Korea and Japan as a result of the FTAs was not part of the confluence of 
unforeseen developments undermines the logical connection between the increased imports and the 
unforeseen developments. In any case, the reference to India 's obligations under Article  XXIV of the 
GATT 1 994 is an ex post  explanation, since the Indian competent authority did not refer to these 
obligations in the Final Findings.  
7.110.   As indicated above, Article  XIX:1(a) does not provide any methodology for examining the 
relationship between the unforeseen develo pments and the increase in imports. Even though a 
competent authority enjoys a certain latitude in choosing the appropriate method, it must provide a 
reasoned and adequate explanation of its findings. In the underlying investigation, the Indian 
competent a uthority relied in its analysis of unforeseen developments on events occurring in specific 
countries, in particular China, Russia, and Ukraine, while a significant portion of imports during the 
POI originated from its FTA partners, Korea and Japan. Althoug h we acknowledge that the origin of 
the unforeseen developments may differ from the origin of the increased imports187, the facts before 
the Indian competent authority warranted an explanation as to why the alleged increase in imports, 
with a predominant sha re from Japan and Korea, occurred due to the unforeseen developments of 
different origin s. 
7.111.   Moreover , the unforeseen developments identified in the Indian competent 
authority 's findings  relate to changes in the steel market in general. The steel industry wo rldwide 
produces numerous varieties of steel products. The underlying investigation was conducted with 
regard to a particular product – "hot-rolled flat products of non -alloy and other alloy steel in coils of 
a width of 600 mm or more" . In response to a qu estion from the Panel, India noted that:  
Steel production worldwide is measured in terms of the crude capacity. The proportion 
of the [product under consideration] remains the same qua the crude production for 
which data is available in public domain. There is no indication on record to suggest that 
either the production or the consumption pattern has changed so as to make an analysis 
based on the crude steel capacity unreliable.188 
7.112.   Neith er the Preliminary nor the Final Findings , however,  contain this explanation, nor do 
they provide any supporting data regarding the proportion of the product concerned in the crude 
                                                
183 India's response to Panel question No.  85. See also WTO regional trade agreements information 
system, available at  http://rtais.wto.org/UI/PublicAllRTAList.aspx  (accessed 15 July 2018).  
184 Japan 's comment s on India 's response to Panel question No.  85, para.  19 and table  1. 
185 Final Findings,  (Exhibit s JPN-11/IND-11), para. 55, p. 201. (emphasis added)  
186 India's response s to Panel question Nos. 20 and 86.  
187 Panel Report s, US – Steel Safeguards , para. 10.146.  
188 India's response to Panel question No. 16. See also response to Panel question No. 90.  WT/DS518/ R 
 
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  steel production. In our view, t he Indian competent authority failed to exp lain how the unforeseen 
developments related to steel in general resulted in an increase in imports of the specific product 
concerned into India  or, alternatively, why such analysis was unnecessary . 
7.113.   The Indian competent authority also found that many developed countries that were 
"traditionally the biggest importers of steel", including the United  States  and the European Union, 
had decreased their demand for imported steel. The exporting countries search ed for other markets 
and India was a natural choice for these manufactures to divest their excess capacity.189 The Indian 
competent authority failed to support this statement with any data and to link the excess supply 
with the alleged increase of imports into India. Similarly, the Indian c ompetent authority stated that 
Russian exporters had "a restricted access to traditional markets like the European Union and 
Ukraine resulting in [an] export push to India"190, without providing any supporting data. The 
findings also mention that China exper ienced a decrease in domestic demand for steel, which led to 
a sudden surge of imports from China to India.191 Apart from noting that a negative growth rate 
of -0,5% in steel use in China would continue in 2015 and 2016, no other supporting data were 
provide d. Therefore, we consider that the Indian competent authority failed to support its 
conclusions regarding the change in demand in several markets with data and to link these steel 
market displacements to the specific increase of imports into India.  
7.114.   Finally , we agree with Japan that the timing of the unforeseen developments is a relevant 
consideration for showing that the unforeseen developments resulted in an increase in imports. In 
our view, the Indian competent authority 's examination of unforeseen develo pments lacks an 
explanation on the timing of events, which form the basis for the unforeseen developments. In 
particular, the Indian competent authority referred to the increase in production capacity in certain 
exporting countries192, the decrease in demand  in the European  Union and the United  States , as well 
as the increase in demand in India, but failed to indicate the timing of these developments as well 
as to link them to the subsequent increase in imports into India. The Indian competent authority 
further noted that domestic demand in China was likely to remain unchanged in the short term and 
that steel use in China would continue to experience a "negative growth of -0.5% in  2015 and 2016" . 
However, this consideration refers to an estimation of future development s. The Indian competent 
authority 's determination does not provide data regarding the timing of the decrease in demand in 
China. Similarly, the Indian competent authority refers to the currency depreciation in Russia and 
the subsequent decrease in export prices, as a reason for increased imports from Russia193, but 
failed to indicate the timing of these developments.  We recall that the Indian competent authority 
identified the confluenc e of events as "unforeseen developments". Although we do not believe that 
all events that form a confluence of developments must necessarily take place simultaneously , there 
must be a clear temporal connection between the events  that constitute a confluenc e of 
developments that is in turn connected to the increase in imports . 
7.115.   For the foregoing reasons , we find that India failed to provide a reasoned explanation that 
the increase in imports of the product concerned into India occurred as a result of unforese en 
developments.  
7.5.6   Effect of the obligations incurred under the GATT 1994  
7.116.   We now address Japan 's arguments that India failed to demonstrate a "logical connection" 
between the effect of the obligations incurred by India under the GATT 1994 and the increase in  
imports causing (or threatening to cause) serious injury to the domestic industry.  
7.117.   Japan argues that a Member imposing a safeguard measure must demonstrate , not only the 
existence of the obligation under the GATT 1994 per se , but also the effects  that such obligation has 
                                                
189 Final Findings, (Exhibit s JPN-11/IND-11), para. 75, p. 204. 
190 Final Findings, (Exhibit s JPN-11/IND-11), para. 76, p. 204. 
191 Final Find ings, ( Exhibit s JPN-11/IND-11), para.  78, p. 204. 
192 In particular, the  Indian competent authority observed that "a number of countries including 
China  PR, Russia, Ukraine, Japan and Korea have developed huge capacities". It indicated the timing of the 
changes in production capacity only with regard to China. See paras.  7.79-7.80 above.  
193 We note that the Indian competent authority indicated th e timing of currency depreciation in 
Ukraine. It observed that the Ukrainian currency depreciated by 60% in 2014 and considered that this trend 
would continue in 2015. ( Preliminary Findings, (Exhibit s JPN-7/IND-7), para. 22, p.  15). 
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  produced.194 Japan contends that a competent authority has to explain how the effects of the 
obligation under the GATT 1994 have resulted in the increase in imports causing or threatening to 
cause serious injury to the domestic indu stry, i.e.  that there must be a "logical connection" between 
the effects of the GATT obligation and the increased imports.195 Japan argues that this "logical 
connection" means that a relevant GATT obligation constrains a Member 's freedom of action and 
preven ts it from taking a WTO -consistent measure to address the increase in imports causing injury 
to the domestic industry.196 Japan notes that India 's bound rate on the product concerned was 40%  
ad valorem , while the applied rate was 7.5% in 2013 -2015. Japan therefore submits that India could 
have increased its applied rate up to the level of the bound rate  and was not prevented from doing 
so by  Article  II:1(b) of the GATT 1994.197 
7.118.   India refers to the Appellate Body 's statement that the phrase "the effect of the ob ligations 
incurred" under the GATT 1994 means that an importing Member must demonstrate "as a matter of 
fact" that it has incurred obligations under the GATT 1994, including tariff concessions.198 India 
submits that Japan 's argument that , in order to apply a  safeguard measure , it must be demonstrated 
that the effects of the obligations under the GATT 1994 have resulted in the increase in imports , is 
contrary to the panel 's statement in US – Steel Safeguards  that "the logical connection between 
tariff concessi ons and increased imports causing serious injury is proven once there is evidence that 
the importing Member has tariff concessions for the relevant product" .199 India submits that the 
Indian competent authority 's Final Findings note that India has tariff con cessions on the product 
concerned.  
7.119.   India has stated that the safeguard measure at issue is a result of the obligations incurred 
by India under Article  II and Article  XXIV of the GATT 1994 collectively. India argues that it considers 
its FTAs to constitute obligations under Article  XXIV of the GATT 1994 and refers to the 
Indian  competent authority 's discussion of the FTAs with Korea and Japan.200 India has also argue d 
that the challenged measure suspend ed, in addition to Article  XXIV of the GAT T 1994,  
India's obligations under the second sentence of Article  II:1(b) of the GATT 1994 , which prohibits 
Members from imposing "all other duties or charges of any kind imposed on or in connection with  … 
importation" .201 
7.120.   As we have noted above, Article  XXIV of the GATT 1994 does not impose an obligation on 
Members to enter into FTAs or to provide a certain level of customs duties to its FTA partners. In 
any event, India 's argument on Article  XXIV is an ex post  explanation, because  the Indian competent 
author ity's consideration of the effect of the GATT obligations does not include any reference to the 
obligations with respect to customs unions and free -trade areas contained in Article  XXIV.  
7.121.   With respect to Article  II:1(b), w e recall that , in its Final Findings , the Indian competent 
authorit y referred to India 's tariff concession on the product concerned – a bound rate of 40%  ad 
valorem . The Indian competent authority cited, not the tariff concession, but the "low applied tariffs" 
as a reason for the increase in imports into India. The findings contain no discussion on the alleged 
effect of India 's obligations under either the first sentence of Article  II:1(b), with respect to tariff 
bindings, or the second sentence, with respect to other duties or charge s. Therefore, we consider 
that the Indian competent authority failed to provide a reasoned and adequate explanation with 
regard to the effect of the relevant obligations of the GATT 1994.  
7.5.7   Conclusion  
7.122.   In light of the foregoing, we conclude that India acted i nconsistently with Article  XIX:1(a) of 
the GATT 1994 by failing to demonstrate that the unforeseen developments  and the effect of 
                                                
194 Japan 's first written  submission, para. 155; second written submission, para. 80 (referring to Panel 
Report, Ukraine – Passenger Cars , para. 7.96).  
195 Japan 's first written submission, para. 156. 
196 Japan 's first written submission, paras.  157 and 161.  
197 Japan 's first written su bmission, paras.  162-163; second written submission, paras.  81-82. 
198 India's first written submission, para. 114 (referring to Appellate Body Report, Argentina – 
Footwear  (EC), para. 91). 
199 India's first written submission, paras.  115-116 (quoting Panel Report s, US – Steel Safeguards , 
paras.  10.139 -10.140).  
200 India's first written submission, para. 117 (referring to Final Findings, (Exhibit IND -11), para. 55). 
201 India's response s to Panel question Nos. 11 and 91.  
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  GATT  obligations have resulted in an increase in imports of the product concerned causing or 
threatening to cause serious inju ry to the relev ant domestic industry in India.  
7.6  Whether India acted inconsistently with Articles  2.1 and 4.2 (a) of the Agreement on 
Safeguards  and Article  XIX:1(a) of the GATT  1994  with respect to the increase in  imports  
7.6.1   Introduction  
7.123.   Japan claims that India 's examination of the increase in imports is inconsistent with 
Articles  2.1 and 4.2(a) of the Agreement on Safeguards and Article  XIX:1(a) of the GATT  1994.202 
Specifically, Japan submits that the Indian competent authority failed to ( i) make a qualitative 
analysis of the increase in imports ; (ii) demonstrate that its determination of an increase in imports 
is based on "objective data" ; (iii) demonstrate that the increase in imports was "recent enough, 
sudden enough, sharp enough, and significant enough" ; and (iv) ensure that the examined increase 
in imports is "a result of" unforeseen deve lopments and the effect of GATT  obligations.203 
7.124.   Before addressing Japan 's arguments, we will recall the Indian competent 
authority 's findings with regard to increased imports and set out our understanding of the relevant 
provisions of the Agreement on Safeguards.  
7.6.2   The Indian competent authority 's determination on increased imports  
7.125.   In its Final Findings, the Indian competent authority found that there had been an increase 
in impo rts of the product concerned during the POI in absolute terms and relative to production.  
7.126.   The Indian competent authority evaluated the volume of imports during the POI, which 
included the following three financial years ( i) 2013 -2014, (ii) 2014 -2015, and ( iii) 2015 -2016 
(annualized).204 The first two years covered the  volume of imports during full financial years from 
1 April 2013 until 31 March  2015. The volume of imports for the last year (2015 -2016) was 
"annualized" on the basis of the data for the first q uarter of 2015 -2016 (from 1 Apri l to 
30 June 2015)  by multiplying by four the volume of imports for the first quarter .205 
Table 1: Increase in imports  
Financial Year  Total Imports 
(MT)  Trend  Production in 
India (MT)  % of imports 
with respect to 
production  
2013-2014 1,252,441  100 25,510,777  5 
2014-2015 2,644,911  211 26,395,795  10 
2015-2016(Q1)  881,233   6,646,258   
2015-2016(A)  3,524,932  281 26,585,032  13 
Source: Final Findings, (Exhibits JPN -11/IND -11), paras.  41 and 43, p. 197. 
7.127.   The Indian competent authority noted that:  
It is apparent from the data in the table above that there is a surge in import in absolute 
terms i.e. Import increased from [1,252,441] MT during the period 2013 -14 to 
[3,524,932] MT during 2015 -16 (Annualised).  
The imports of product under consideration in India during the period of investigation 
have increased in relation to all Indian production. The import with respect to total 
production increased from 5% in 2013 -14 to 13% in 2015 -16(A).206 
                                                
202 Japan also claims that India acted incon sistently with Articles  3.1 and 4.2(c) of the Agreement on 
Safeguards by failing to provide a reasoned and adequate explanation of its determination regarding the 
increase in imports. This claim is addressed in section 7.11 below.  
203 Japan 's first written submission, para. 179; second written submission, para. 91. 
204 Preliminary Findings, (Exhibit s JPN-7/IND -7), para. 9, p. 13; Final Findings, 
(Exhibit s JPN-11/IND -11), para. 31, p. 196. 
205 India's first written submission, para. 139; responses to Panel question Nos. 31 and 32.  
206 Final Findings, (Exhibit s JPN-11/IND -11), paras.  42-43, p. 197. 
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  7.128.   Based on these data, th e Indian competent authority concluded that there was "a sudden, 
sharp and significant surge in imports" during the POI both in absolute terms and relative to  total 
domestic  production.207 
7.6.3   Articles  2.1 and 4.2(a) of  the Agreement on Safeguards  
7.129.   Article  2.1 re ads as follows:  
A Member may apply a safeguard measure to a product only if that Member has 
determined, pursuant to the provisions set out below, that such product is being 
imported into its territory in such increased quantities, absolute or relative to d omestic 
production, and under such conditions as to cause or threaten to cause serious injury 
to the domestic industry that produces like or directly competitive products.208 
7.130.   Article  4.2(a) provides in relevant part that:  
In the investigation to determine wh ether increased imports have caused or are 
threatening to cause serious injury to a domestic industry under the terms of this 
Agreement, the competent authorities shall evaluate all relevant factors of an objective 
and quantifiable nature having a bearing on the situation of that industry, in particular, 
the rate and amount of the increase in imports of the product concerned in absolute 
and relative terms[.]  
7.131.   Article  2.1 of the Agreement on Safeguards sets out conditions for the application of 
safeguard meas ures. In particular, a Member applying a safeguard measure has to determine that 
the product "is being imported into its territory in such increased quantities, absolute or relative to 
domestic production, and under such conditions" as to cause or threaten  to cause serious injury to 
the domestic industry. Article  4.2(a) of the Agreement on Safeguards further provides that a 
competent authority shall evaluate "the rate and amount of the increase in imports of the product 
concerned in absolute and relative te rms" as one of the relevant factors  "of an objective and 
quantifiable nature"  having a bearing on the situation of the domestic industry. In Argentina – 
Footwear (EC) , the panel noted that Articles  2.1 and 4.2(a) are both relevant provisions for 
examining an increase in imports as a basic prerequisite for the application of safeguard measures.209 
Article  2.1 "sets forth the conditions  for the application of a safeguard measure", while Article  4.2(a) 
provides "the operational requirements for determining wheth er the conditions identified in 
Article  2.1 exist".210 
7.132.   Article  2.1 requires a competent authority to examine the increase in imports in both 
absolute terms and relative to domestic production. Previous panels and the Appellate Body have 
stated that Article  2.1 does not refer to just any increase in imports, but to an increase in 
"such  … quantities" as to cause or threaten to cause serious injury to the domestic industry.211 The 
Appellate Body clarified that the expression " in such increased quantities " in Article 2.1 requires that  
"the increase in imports must have been recent enough, sudden enough, sharp enough, and 
significant enough, both quantitatively and qualitatively, to cause or threaten to cause 'serious 
injury'".212 
7.133.   In turn, Article  4.2(a) requires that the increase in imports must also be evaluated "in its full 
context, in particular with regard to its 'rate and amount'".213 The obligation under Article  4.2(a) to 
evaluate the rate and amount of the increased imports requires a competent authority to analys e 
the intervening trends  of imports over the POI (rather than just comparing the end points).214 The 
                                                
207 Final Findings, (Exhibit s JPN-11/IND -11), paras.  40-44, p. 197. 
208 Fn omitted. 
209 Panel Report, Argentina – Footwear (EC) , para. 8.138.  
210 Panel Report, Argentina – Footwear (EC) , paras.  8.139 -8.140.  
211 Panel Report, Argentina – Footwear (EC) , para. 8.161; Appellate Body Report, Argentina – 
Footwear  (EC), para. 129. 
212 Appellate Body Report, Argentina – Footwear (EC) , para. 131. 
213 Panel Report, Argentina – Footwear (EC) , para. 8.161.  
214 Panel Report, Argentina – Footwear (EC) , para. 8.159  and fn  526; Appellate Body Report, 
Argentina  – Footwear  (EC), para. 129. 
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  use of the present tense in the phrase "is being imported" suggests that a competent authority must 
examine the recent imports.215 The Appellate Body noted tha t "within the period of investigation as 
a whole, evidence from the most recent past will provide the strongest indication of the likely future 
state of the domestic industry".216 At the same time, the data from the most recent past should be 
assessed in the  light of the longer -term trends in the data for the entire POI.217 
7.6.4   Evaluation by the Panel  
7.134.   Japan 's claim regarding the Indian competent authority 's determination on the increase in 
imports raises two main questions before us . First, whether by using annualized import data 
for 2015-2016 the Indian c ompetent authority  was basing its determination regarding an increase 
in imports on objective  data. Second, whether the Indian competent authority examined the increase 
in imports both quantitatively and qua litatively and sufficiently explained its conclusion s in the Final 
Findings that the increase in imports was "recent enough, sudden enough, sharp e nough, and 
significant enough".  
7.135.   We begin by considering Japan 's allegation that by using annualized data for 2015-2016, 
the Indian competent authority failed to base its determination regarding an increase in imports on 
"objective data" and thus acted inconsistently with Article  4.2(a).  
7.136.   Japan argues that the Indian competent authority failed to explain why it was  reasonable to 
use annualized data for 2015 -2016, extrapolating data from the first quarter to the rest of the 
year.218 India submits that the Agreement on Safeguards does not provide any guidance regarding 
the analysis of the data, therefore the method appl ied by the Indian competent authority cannot be 
questioned unless it is shown that such method is unreasonable and biased.219 India argues that the 
annualization of data is a logical method , when  the only data available pertains to a short period of 
the year .220 India submits that the data for one quarter was annualized to make it comparable to 
the full year data of the preceding periods.221 
7.137.   Pursuant to Article  4.2(a), "the rate and amount of the increase in imports" is one of the 
factors of "an objective and qua ntifiable nature" that must be evaluated by a competent authority. 
In US – Lamb , the Appellate Body stated that the requirement of "objectivity and quantifiability" 
applies, not only to factors, but also to data:  
We recognize that the clause "of an objecti ve and quantifiable nature" refers expressly 
to "factors", but not expressly to data. We are, however, convinced that factors can 
only be "of an objective and quantifiable nature" if they allow a determination to be 
made, as required by Article  4.2(b) of the Agreement on Safeguards , on the basis of 
"objective evidence". Such evidence is, in principle, objective data. The words "factors 
of an objective and quantifiable nature" imply, therefore, an evaluation of objective data 
which enables the mea surement and quantification of these factors.222 
We agree with this statement and consider that a competent authority must base its evaluation of 
factors under Article  4.2(a), including the rate and amount of the increase in imports, on objective 
data and ev idence. Although Article  4.2(a) does not provide any guidance regarding the 
methodology for evaluating the increase in imports, the evaluation made by the competent 
authorities  must be objective and unbiased.223 
 
                                                
215 Appellate Body Report, Argentina – Footwear (EC) , para. 130. 
216 Appellate Body Report, US – Lamb , para. 137. 
217 Appellate Body Report, US – Lamb , para. 138. 
218 Japan 's first written submission, paras.  206-210; second written submission, paras.  111-117. 
219 India's  first written submission, para.  139 (referring to Panel Report, US – Line Pipe , para.  7.203).  
220 India's first written submission, para. 139. 
221 India's response s to Panel question Nos. 31, 33, and 95.  
222 Appellate Body Report, US – Lamb , para. 130. (emphasis original)  
223 In US – Line Pipe , in determining whether the US methodology for the analysis of increased imports 
complied with the Agreement on Safeguards and the GATT 1994, the panel considered "whether the 
methodology selected is unbiased and obj ective, such that its application permits an adequate, reasoned and 
reasonable explanation of how the facts in the record before the ITC support the determination made with 
respect to increased imports". (Panel Report, US – Line Pipe , para.  7.194).  
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  7.138.   As noted above, i n the underlying investigati on, the Indian competent authority selected the 
POI from 2013 -2014 to 2015 -2016 (annualized on the basis of the first quarter), i.e. the POI covers 
the following three financial years ( i) 2013 -2014, (ii) 2014 -2015, and ( iii) 2015 -2016 
(annualized).224 The fi rst two years covered the period from 1  April until 31 March. The volume of 
imports for the last year (2015 -2016) was annualized on the basis of the data for the first quarter 
of 2015 -2016 (from 1 April to 30 June 2015).225 In response to a question from the  Panel, India 
clarified that the POI was, in fact, from 1 April 2013 to 30 June 2015.226 This period covers 
two financial years (from 1 April 2013 to 31 March 2015) and three months (1  April to 
30 June 2015). India explained that the first quarter of 2015 -2016 was only annualized to make the 
data of this period comparable to the full year data of the preceding periods.227 
7.139.   The methodology used by the Indian competent authority, where data were annualized in 
order to  make them comparable with those of previous years, warrants a compelling explanation as 
to why such methodology was reliable and why the figures corresponding to the first qu arter 
of 2015-2016 could be extrapolated for the entire financial year. The Preli minary and Final Findings 
do not contain any explanation in this respect.  
7.140.   The section of the Final Findings titled "Examination of Post POI data" provides data on the 
volume of imports for the second quarter of 2015 -2016. The Indian competent authority obs erved 
that the volume of imports for 2015 -2016, annualized on the basis of the first and second quar ters, 
was 4,587,168  tonnes, which is 1,062,236 tonnes  more than the volume of imports for  2015-2016, 
annualized on the basis of the first quarter only ( 3,524,932 tonnes ).228 Although these data show 
that the volume of imports had increased by about 30% in the second quarter as compared to the 
first quarter of 2015 -2016, they cast doubts as to what extent the volume of imports in 2015 -2016, 
annualized on the bas is of the first quarter, could provide a reasonable basis for comparison with 
the pr eceding periods.  
7.141.   In addition, the import data provided in the domestic industry 's application show that the 
volume of imports fluctuates during a year.  The domestic industr y provided the data on the volume 
of imports in 2014 -2015 with quarterly breakdown: first quarter – 421,109 tonnes; second  quarter 
– 499,941 tonnes; third quarter – 718,494 t onnes; fourth quarter – 900,570  tonnes .229 The 
Indian  competent authority examined the change in imports during the first two years of the POI 
(2013 -2014 and 2014 -2015) based on annual data only and did not provide any quarterly 
breakdown, which could provide a basis for comparison of impor t trends with quarterly data 
of 2015-2016.  
7.142.   The a nalysis of the increase in imports must be based on evidence of the actual volume of 
imports. As noted before, it should be also based on evidence from the most recent past.230 We 
recall that the Indian competent authority initiated the safeguard investigati on on 
7 September  2015. Before the Panel, India asserts that the POI was from 1  April 2013 to 
30 June 2015, and that the annualized data for the rest of the financial year 2015 -2016 were used 
only to make the information comparable to the full year data of  the preceding periods. Although 
India denies that the data for the first quarter were used to draw conclusion s with regard to the 
whole year231, the Final Findings, cited in paragraphs  7.126 -7.127  above, show that the Indian 
competent authority relied on the full year of 2015 -2016 (annualized) to examine the trends in 
imports and draw conclusions regarding the existence of the import surge.232 Absent any explanation 
on methodology, the reliance on annualized data calls in to question whether the evaluation of import 
trends was based on actual imports, especially pertaining  to the third and fourth quarters 
of 2015-2016.  
                                                
224 Preliminary Findings, (Exhibit s JPN-7/IND -7), para. 9, p. 13; Final Findings, 
(Exhibit s JPN-11/IND -11), para. 31, p. 196. 
225 India's first written submission, para. 139. 
226 India's response to Panel question No. 29. 
227 India's first written submission, para. 230; response s to Panel question Nos. 29 and 31.  
228 Final Findings, (Exhibit s JPN-11/IND -11), para. 100, p. 208. 
229 Revised Application, (Exhibits JPN -6/IND -20), p. 7. 
230 See para.  7.133  above.  
231 India's response to Panel question No. 31. 
232 Final Findings, (Exhibit s JPN-11/IND-11), paras.  40-44, p. 197. See also Preliminary Findings, 
(Exhibit s JPN-7/IND-7), para. 13, p. 13. 
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  7.143.   Moreover, the record of the investigation contains import data for the three most recent 
years preceding the initiation of the investigation, which could have been used by the Indian 
competent authority. Indeed , the domestic industry 's application specifically provides information 
on the volume of imports from 2011 -2012 to June 2015233: 
Table 2: Increase in Imports  
2011 -2012  2012 -2013  2013 -2014  2014 -2015  2015 -2016  
(Quarter 1)  
2,219,711  2,120,996  1,292,099  2,540,114  844,840  
Source: Revised Application, (Exhibits JPN -6/IND -20), p. 7. 
7.144.   The Final Findings do not explain why the Indian competent authority  did not use this 
information and decided instead to annualize the data for 2015 -2016. In response  to a question 
from the Panel, India noted that since the Agreement on Safeguards does not indicate how long the 
POI should be , a competent authority enjoys certain discretion to select the POI .234 Although the 
competent authorities can determine in each cas e the relevant POI to evaluate the increase in 
imports, the Final Findings  do not indicate  why the Indian competent authority did not use a period 
for which information was available and decided instead to annualize the data for 2015 -2016. 
7.145.   For the above reasons, we  consider that the Indian competent authority failed to evaluate 
the rate and amount of the increase in imports on the basis of objective data , when it analysed the 
increase in imports at least partly on annualized data.  
7.146.   Next, we turn to Japan 's allegation that India acted inconsistently with Articles  2.1 
and 4.2(a) of the Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994, by failing to 
conduct a qualitative analysis of the increase in imports, since its analysis did not ensure that t he 
increase in imports was recent enough, sudden enough, sharp enough and significant enough, both 
quantitatively and qualitatively, to cause or threaten to cause serious injury.235 
7.147.   In particular, Japan  submits that the Indian competent authority failed to properly examine 
the recent trends in imports in the context of longer -term trends. Japan points out to import trends 
before the POI, in 2011 -2012 and 2012 -2013, and argues that the short -term increase  between 
2013-2014 and the first quarter of 2015 -2016 was only a recovery of imports to their previous 
levels.236 Japan submits that the domestic industry  referred to import trends in 2011 -2013 in their 
application and the interested parties raised the same issue during the investigation, but the Indian 
competent authority failed to provide reasons for disregarding this data.237 According to Japan, i n 
order to make a qualitative analysis, the Indian competent authority should have evaluated the real 
significanc e of this short -term trend during the POI in light of longer -term trends or any other 
methods so as to ensure that this short -term upward trend was recent enough, sudden enough, 
sharp enough and significant enough .238 Although Japan does not challenge the selection of the POI 
as such, it considers that a competent authority 's discretion to select the POI is not unlimited and 
must be exercised with due regard to the obligations provided in the Agreement on Safeguards  that 
relate to the investigation process .239 Japan also argues that the Indian competent authority failed 
to provide an adequate explanation as to why it considered that the increase in imports was recent 
enough, sudden enough, sharp enough and significant enough, both quantitatively and qualitativ ely, 
as to cause and threaten to cause serious injury.240 
                                                
233 Revised Application, (Exhibits JPN -6/IND -20), p. 7. 
234 India's  response to Panel question No. 36.  
235 Japan 's second written submission, para. 103; response to Panel question No. 94, para.  38. 
236 Japan 's first written submission, paras.  185, 187 -188, and 190 (referring to Panel Report, 
Argentina  – Preserved Peaches , para. 7.64); second written submission, para. 105. 
237 Japan 's first written submission, para. 192 (referring to Final Findings, (Exhibit JPN-11), para. 30, 
p. 195). 
238 Japan's  second written submission, para.  103. 
239 Japan 's first written submission,  paras.  194-195. 
240 Japan's  first written submission, paras.  211-215; second written submission, para.  18. 
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  7.148.   India submits that the selected POI was long enough to enable the Indian competent 
authority to examine the recentness of the increase in imports in the context of the longer -term 
trends.241 India asser ts that the Agreement on Safeguards does not provide any guidance regarding 
the selection of the POI and that a competent authority enjoys certain discretion for determining the 
POI.242 India denies Japan 's allegation that the selected POI distorted the pict ure regarding the 
trends in imports. India submits that a mixed trend or even a downturn in imports does not mean 
that the serious injury to the domestic industry ceases to exist. According to India, the data show 
that although the imports declined before the POI, they have increased in recent terms and exceeded 
the quantities of the period preceding the POI.243 India adds that, even a ssuming that the period 
of 2011-2012 had been included into the POI, it would have still shown that the imports had 
increased both in absolute terms and relative to the domestic production.244 
7.149.   As we have discussed above, Article  2.1 of the Agreement on Safeguards and Article  XIX:1 
of the GATT 1994 require a competent authority to determine not just any increase in imports, but 
an increase in "such  … quantities" as to cause or threaten to cause serious injury to the domestic 
industry.245 This implies both a quantitative and a qualitative consideration of the increase in imports. 
The increase in imports must be considered "in its full context", including in particular its "rate and 
amount " as required by Article  4.2(a).246 It follows that  the enquiry with regard to the increase in 
imports requires the evaluation of the trends in impor ts or changes in import levels over the entire 
POI. While the Agreement on Safeguards does not provide any guidance with regard to the selection 
of the POI and a competent authority has certain discretion in this regard247, the POI should be long 
enough to p rovide an adequate basis for comparison of import trends. In US – Line Pipe , the panel 
noted that the POI should allow a competent authority to focus on recent imports , while  being 
sufficiently long so that the authority can draw conclusions regarding the existence of increased 
imports.248 
7.150.   In our view, the POI of two years and three months did not allow the Indian competent 
authority to make a quantitative and qualitative objective analysis.  India based its evaluation of the 
increase in imports on the import data pertaining to two years and three months, which in effect 
provides two points of comparison of the volume of imports in 2013 -2014 and in 2014 -2015. With 
regard to the third point of comparison, 2015 -2016, as we have found above, the Indian competent 
authority did not have objective data for the full fina ncial year. The import data for  2015-2016 was 
based on imports for the first quarter of this year, which undermines the trend analysis of changes 
in imports in 2015 -2016 compared to the previous two yea rs. Furthermore, the data for the last 
year of POI is of particular importance, since it reflects the most recent trends in imports. Considering 
the above, we conclude that India acted inconsistently with Articles  2.1 and 4.2(a) of the Agreement 
on Safegua rds and Article  XIX:1 of the GATT 1994, by failing to objectively examine trends in imports 
and to provide a reasoned explanation with regard to the conclusion in the Final Findings that there 
was "a sudden, sharp and significant surge in imports" during t he POI.249 
7.151.   Finally, Japan argues that India acted inconsistently with Article  2.1 of the Agreement on 
Safeguards and Article  XIX of the GATT 1994 by failing to ensure that the examined increase in 
imports is a result of unforeseen developments and of the eff ect of GATT obligations. Japan submits 
that the Indian competent authority considered all imports and failed to ensure that these imports 
resulted from unforeseen developments and the effect of the obli gations incurred under the 
GATT  1994.250 Since we have f ound above that India acted inconsistently with Article  XIX:1 of the 
GATT 1994 with regard to its consideration of the unforeseen d evelopments, the effect of 
GATT  obligation and the increase in imports, we do not need to address this argument of Japan.  
                                                
241 India's first written submission, paras.  125-127 (referring to Appellate Body Report, US – Lamb , 
para. 138 and fn 88). 
242 India's first written submission, para. 124 (referring to Appellate Body Report, US – Line Pipe , 
paras.  7.196 -7.197 and 7.201).  
243 India's first written submission, para. 133. 
244 India's first written submission, paras.  128-130. 
245 Panel Report, Argentina – Footwear (EC), para. 8.161; Appellate Body Report, Argentina – 
Footwear  (EC), para. 129. 
246 Panel Report, Argentina – Footwear (EC) , para. 8.161.  
247 Panel Report, US – Line Pipe , para. 7.196.  
248 Panel Report, US – Line Pipe , para. 7.201.  
249 Final Findings, (Exhibit s JPN-11/IND-11), para. 44, p. 197. 
250 Japan 's first written submission, paras.  180-183; second written submission, paras.  97-100. WT/DS518/ R 
 
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  7.6.5   Conclusion  
7.152.   In light of the foregoing, we find that India 's determination on the increase in imports is 
inconsistent with Articles  2.1 and 4.2(a) of the Agreement on Safeguards and Article  XIX:1 of the 
GATT 1994.  
7.7  Whether India acte d inconsistently with Articles 2.1, 4.1(a), 4.1(b),  4.1(c),  4.2(a), 
and 4.2(b)  of the Agreement on Safeguards and Article  XIX:1(a) of the GATT  1994 with 
respect to its determination of the domestic industry  
7.7.1   Introduction  
7.153.   Japan submits that India failed to determine  the domestic indu stry as required by 
Article  4.1(c) of the Agreement on Safeguards.251 Japan asserts that the concept of "domestic 
industry" is critical to the injury and causal link analysis and alleges that the Indian competent 
authority 's injury and causation determinatio ns are consequently inconsistent with Articles  2.1, 
4.1(a), 4.1(b), 4.2(a), and 4.2(b) of the Agreement on Safeguards as well as with Article  XIX:1(a) 
of the GATT 1994.252 
7.7.2   Article  4.1(c) of the Agreement on Safeguards  
7.154.   Article  4.1(c) of the Agreement on Safeguards reads as follows:  
[I]n determining injury or threat thereof, a "domestic industry" shall be understood to 
mean the producers as a whole of the like or directly competitive products operating 
within the territory of a Member, or those whose colle ctive output of the like or directly 
competitive products constitutes a major proportion of the total domestic production of 
those products.  
7.155.   Article  4.1(c) of the Agreement on Safeguards provides two options for the definition of the 
"domestic industry" (i) "the producers as a whole  of the like or directly competitive products" ; or 
(ii) the producers whose output constitutes " a major proportion " of the total domestic production of 
the like or directly competitive products.253 
7.156.   The Agreement on Safeguards does not provide any specific percentage or share of the 
domestic production, which would meet the requirement of "a major proportion".254 Neither does it 
establish any methodology or procedure that competent  authorities must follow for determining a 
major propor tion of the total domestic production. The consideration as to what constitutes "a major 
proportion" depends on the specific circumstances of each case. 
7.157.   The Appellate Body has clarified, in the context of a similar provision in the Anti -Dumping 
Agreement, that the term "major proportion" means " a relatively high proportion of the total 
domestic production" .255 The term "major proportion" has both "quantitative and qualitative 
connotations".256 The qualitative element  aims to ensure  that "the domestic producers of the like 
product that are included in the definition of domestic industry are representative of the total 
domestic production ".257 The Appellate Body has stated  that there is "an inverse relationship " 
between  the proportion of total production included in  the domestic industry and  the existence of a 
material risk of distortion in the definition of domestic industry and in the assessment of injury.258 
                                                
251 Japan's  first written submission, paras.  216-217 and 243; second written submission, para.  120. 
252 Japan 's first written submis sion, paras.  244-246. 
253 Emphasis added.  
254 Appellate Body Report, EC – Fasteners (China) , para. 411. 
255 Appellate Body Report, EC – Fasteners (China) , para.  412. In addition, in Argentina – Poultry 
Anti-Dumping Duties , the panel stated that "it is permissible to define the 'domestic industry ' in terms of 
domestic producers of an important, serious or significant proportion of total domestic production" . (Panel 
Report, Argentina – Poultry Anti -Dumping Duties , paras.  7.341 -7.342) . 
256 Appellate Body Rep ort, EC – Fasteners ( China ) (Article  21.5 – China ), paras.  5.302 -5.303.  
257 Appellate Body Report, Russia – Commercial Vehicles , para.  5.13. 
258 Appellate Body Report s, EC – Fasteners ( China ) (Article  21.5 – China ), paras.  5.302 -5.303; Russia  – 
Commercial Vehicles , para.  5.13. 
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  Specifically,  "the lower the proportion, the more sensitive an investigating authority will have to be 
to ensure that the proportion used substantially reflects the total production of the producers as a 
whole".259 At the same time, "the higher the proportion, the more p roducers will be included, and 
the less likely the injury determination conducted on this basis would be distorted" .260 
7.7.3   Evaluation by the Panel  
7.158.   In the investigation at hand, the Indian competent authority defined the domestic industry 
on the basis of the sec ond option, i.e. "a major proportion" of the total domestic production of the 
like or directly competitive products. The "domestic industry", as defined by the Indian competent 
authority, comprised producers representing 70% of the total domestic productio n in 2013 -2014, 
68% in 2014 -2015, and 67% in the first quarter of 2015 -2016.261 The domestic industry comprised 
three out of six producers of the product concerned in India , namely : Steel Authority of India Limited, 
Essar Steel India Limited, and JSW Steel L imited, who filed the application for the initiation of the 
safeguard investigation (the applicants).262 Questionnaires were sent to all six  known domestic 
producers, but replies were received only from the applicants.263 
7.159.   Japan submits that if a competent auth ority defines the domestic industry based on the 
second option provided in Article  4.1(c) (i.e. those producers whose collective output constitutes "a 
major proportion" of the total domestic production), it must ensure that the process of defining the 
dome stic industry does not give rise to a material risk of distortion in the injury and causation 
determination.264 Japan argues that the Indian competent authority 's approach to define the 
domestic industry introduced a material risk of distortion, because the record of the investigation 
shows that the producers outside the domestic industry as defined performed substantially 
differently , in particular in terms of sales, market share , and production . Japan refers to this fact to 
argue that the producers comprising the domestic industry  did not "substantial ly reflect" the total 
domestic production .265 For Japan, the Indian competent authority relied on a "purely quantitative 
test", when it concluded that the applicants necessarily constituted "a major propor tion" under 
Article  4.1(c) if they represented at least 50% of the total production.266 In addition, Japan takes 
issue with the fact that the domestic industry comprised only the applicants. Japan argues that the 
domestic industry was defined based on "a sel f-selection process" by the domestic producers 
themselves, which does not exclude that the domestic producers "purposively" included low 
performing producers into the "domestic industry" while ignoring high performing producers.267 
7.160.   India responds that since the share of domestic  production of  producers comprising the 
domestic industry is more than 50%, the competent authority does not need to examine the rest of 
the producers. India asserts that examining the rest of producers would result in merging the two 
options provided in Article  4.1(c).268 India further submits that since the Indian competent authority 
examined data with respect to 67% of the total domestic production, there is no basis to suggest 
that the injury or causation analysis is distorted.269 India notes that even though there is no 
requirement to examine all producers, the Indian competent authority nevertheless sent 
questionnaires to all known producers, but the rest of the producers did not cooperate.270 Regarding 
Japan 's reference to sales and mar ket share, India argues that the data on sales and market share 
have no bearing on the definition of the domestic industry. Furthermore, India submits that once 
                                                
259 Appellate Body Report, EC – Fasteners (China) , para. 412. 
260 Appellate Body Report, EC – Fasteners (China) , para. 414. 
261 Final Findings, (Exhibit s JPN-11/IND-11), para. I(f), p. 167. As explained by India, the domestic 
industry as de fined by the Indian competent authority  covered both captive and non -captive segments of 
production. (India's  response to Panel question No.  42). 
262 Preliminary Findings, (Exhibit s JPN-7/IND-7), para. 1, p. 12; Final Findings, 
(Exhibit s JPN-11/IND-11), para. 26, p. 194. 
263 Final Findings, (Exhibit s JPN-11/IND-11), para. 4, pp. 119-120; India 's first written submission, 
paras.  159-160. 
264 Japan 's first written submission, para. 235. 
265 Japan's  first written submission, paras.  237-241; second written submissi on, para.  127. 
266 Japan 's first written submission, para. 236; second written submission, paras.  122-125. 
267 Japan 's second written submission, para. 126. 
268 India's first written submission, paras.  157-158. 
269 India's first written submission, para. 162; seco nd written submission, para. 13. 
270 India's first written submission, paras.  159-160; second written submission, para. 14. 
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  the domestic industry has been defined, the data with regard to producers outside the domestic 
industry do not have any bearing on the determination of either injury or causation.271 
7.161.   We begin by addressing Japan 's argument that the Indian competent authority defined the 
domestic industry on the basis of a quantitative approach only, and failed to cond uct any qualitative 
analysis.  To support this argument, Japan refers to the Appellate Body 's statement that the term 
"major proportion" has both quantitative and qualitative connotations. We note that the 
Appellate  Body linked the qualitative analysis to t he proportion of the domestic producers 
represented in the domestic industry. If the proportion of the domestic producers is sufficiently high, 
it is likely to meet both the quantitative and the qualitative aspect s of the analysis, because the 
domestic ind ustry so defined sufficiently reflects the totality of the domestic producers.  The 
Appellate  Body explained:  
[T]here is an inverse relationship between, on the one hand, the proportion of producers 
represented in the domestic industry and, on the other han d, the absence of a risk of 
material distortion in the definition of the domestic industry and in the assessment of 
injury. We thus read the requirement in Article  4.1 that domestic producers ' output 
constitute a "major proportion" as having both quantitat ive and qualitative 
connotations.  
When the domestic industry is defined as the domestic producers whose collective 
output constitutes a major proportion of total domestic productio n, a very high 
proportion that " substantially reflect s the total domestic p roduction"  will very likely 
satisfy both the quantitative and the qualitative aspect of the requirements of 
Articles  4.1 and 3.1. However, if the proportion of the domestic producers ' collective 
output included in the domestic industry definition is not sufficiently high that it can be 
considered as substantially reflecting the totality of the domestic production, then the 
qualitative element becomes crucial in establishing whether the definition of the 
domestic industry is consistent with Articles  4.1 and 3.1.272 
7.162.   From a quantitative point of view, the domestic industry, as defined by the Indian competent 
authority, represented a high proportion of the domestic production in relation to th e total. 
Specifically, the domestic industry comprised between 67% and 70% of the total domestic 
production and can in principle be considered as a substantial reflection of the  domestic producers 
as a whole.  
7.163.   Japan supports its claim that the Indian compet ent authority failed to conduct a qualitative 
analysis by the fact that the producers outside the domestic industry performed better. Japan 
contends that the Indian competent authority defined the domestic industry in a manner that 
introduced "a material r isk of distortion" of the injury analysis, because the situation of producers 
outside of the domestic industry improved and they had  different trends in sales , market share , and 
production  than the producers included into the domestic industry. Japan consi ders that factors such 
as sales, market share, and production of the domestic producers outside the domestic industry may 
be relevant in confirming whether the domestic industry "substantially reflect s" the total domestic 
production.273 Specifically, Japan a sserts that (i ) the sales of the domestic industry slightly increased 
over the POI, while the sales of the other domestic producers increased substa ntially over the same 
period274; (ii) the market share of the domestic industry decreased over the POI, while the market 
share of the other dome stic producers increased275; and (iii ) the production of the domestic industry 
                                                
271 India's first written submission, paras.  164 and 167.  
272 Appellate Body Report, EC – Fasteners ( China ) (Article  21.5 – China ), paras.  5.302 -5.303 
(fn omitted).  In that case, the domestic industry had been defined "at the lower end of the spectrum", 
representing 27% of the total domestic production.  
273 Japan's  response to Panel question No. 45(a), para.  67. 
274 The sales of the domestic industry (captive and non -captive) were 14,616,565 tonnes in 2013 -2014; 
14,968,955 tonnes in 2014 -2015; and 15,645,704 tonnes in 2015 -2016 (annualized). The sales of other Indian 
producers were 6,995,047 tonnes in 2013 -2014; 7,91 4,137 tonnes in 2014 -2015; and 8,986,612 tonnes 
in 2015-2016 (annualized). (Japan's  first written submission, para.  238).  
275 The domestic industry's  market share (covering captive and non -captive segments of the market) 
was 64% in 2013 -2014; 59% in 2014 -2015; and 56% in 2015 -2016 (annualized). The market share of other 
Indian producers was 31% in 2013 -2014; 31% in 2014 -2015; and 32% in 2015 -2016 (annualized). 
(Japan's  first written submission, para.  239).  
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  remained stable, while the production of the other Indian producers substantially increased.276 For 
Japan, these trends suggest that the alleged in crease in imports affected the domestic industry and 
the other producers differently.  
7.164.   During the investigation, the Indian competent authority rejected a similar argument of 
interested parties  that the applicants did not meet the requirement of "a major proportion", given 
that their market share was 45% in 2013 -2014, while the market share of other domestic producers 
was 51%. The Indian competent authority explained the market share is not a "m easure of standing" 
for defining the domestic industry.277 India repeats this argument before the Panel and argues that 
under Article  4.1(c) the domestic industry is defined on the basis of a proportion in domestic 
production. We agree with India. Article  4.1(c) specifically provides that "a major proportion" is 
defined on the basis of the "collective output" of the like or directly competitive products in "the total 
domestic production" of those products. When the competent authority defines the "domestic 
industry" as the producers "whose collective output of the like or directly competitive products 
constitutes a major proportion of the total domestic production of those products" pursuant to 
Article  4.1(c) , the focus is on "the question of how much  producti on must be represented by those 
producers making up the domestic industry".278 Article  4.1(c) does not require a competent authority 
to examine the domestic producers ' market share and sales in order to define the domestic industry. 
Therefore, we reject Japa n's argument that the Indian competent authority needed to consider  the 
market share and sales of the other domestic producers , when it defined the domestic industry.279 
7.165.   At the same time , once the d omestic industry is defined, in accordance with Article  4.2(a) 
the competent authority must examine  the trends in  its production, sales, and market share as part 
of the mandatory relevant factors in the evaluation of the domestic industry 's situation . The 
performance of producers outside the domestic industry  (including their production, sales, and 
market share)  may be considered as a non -attribution factor under Article  4.2(b) and taken into 
account in the final determination of whether the domestic industry suffers serious injury caused by 
the increased impo rts. 
7.166.   Furthermore, Japan  argues that the Indian competent authority 's definition of the domestic 
industry involved "a self -selection process" by the domestic producers themselves, because only 
applicants were included into the definition of the domestic industry. According to Japan, this 
approach might suggest that better performing producers were intentionally excluded from t he 
domestic industry. In this respect, we note that  it is not unusual that the weaker -performing 
producers take an initiative to start and participate in a trade remedy investigation, while better 
performing producers may choose a passive approach. This un derstanding is consistent with the 
panel 's statement in China – Autos (US)  in the context of an anti -dumping dispute:  
In our view, the possibility that weaker -performing producers in a given industry will 
more strongly support an AD or CVD investigation or  be more likely to participate 
actively is simply a reflection of the realities of trade remedy actions. The possibility of 
imposition of definitive AD and/or CVD measures will afford all producers relief from 
lower -priced imports, but producers performing  less well will tend to have a greater 
incentive to seek initiation of and participate in an investigation.280 
                                                
276 The domestic industry's  production was 17,881,187 tonnes in 2013 -2014; 17,836,937 tonnes 
in 2014-2015; and 17,827,180 tonnes in 2015 -2016 (annualized). The production of other Indian producers 
was 7,629,590 tonnes in 2013 -2014 tonnes; 8,558,858 tonnes in 2014 -2015; and 8,757,852 tonnes 
in 2015-2016 (annua lized). ( Japan 's first written submission, para. 241). 
277 Final Findings, (Exhibit s JPN-11/IND-11), para. 25, p. 194. 
278 Appellate Body Report, EC – Fasteners (China) , para. 411. (emphasis original)  
279 We also note Japan's  argument that in Russia – Commercial  Vehicles  the Appellate Body upheld the 
panel's  findings , in the context of a similar provision in the Anti -Dumping Agreement , that the investigating 
authori ty had not complied with the "major proportion" requirement by failing to include one producer in t he 
domestic industry although the other producer included in the domestic industry represented 87.9% share of 
total domestic production of the like product.  The facts in Russia – Commercial Vehicles  are different from 
those in this case. In Russia – Commer cial Vehicles , the panel's finding was based on the fact that the 
investigating authority defined the domestic industry as one producer, representing  87.9%  of total production, 
after it had received the questionnaire  responses  from two domestic producers p roducing  like products. 
(Panel  Report, Russia – Commercial Vehicles , para.  7.16) . 
280 Panel Report, China – Autos (US) , paras.  7.224 -7.225.  
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  7.167.   We note the cautionary words of the Appellate Body that, w hen the domestic industry is 
defined as the dome stic producers whose output constitutes a  major proportion of total domestic 
productio n, if the proportion is not sufficiently high, then a qualitative element becomes crucial in 
establishing whether the domestic industry has been appropriately defined.281 This situation may 
arise, for example, in the case of a fragmented industry with numerous producers, when there are 
practical constraints on an authority 's ability to obtain information and therefore a "major 
proportion" may be lower than what would be ordinarily permissible in a less fragmented i ndustry.282 
This is not the situation in the present case. As noted above, the Indian competent authority included 
in the definition of the domestic industry a  proportion of the domestic producers ' output that was  
high enough that it can constitute a substan tial reflection of the  total domestic production. 
Accordingly, the definition of the domestic industry would very likely satisfy both the quantitative 
and the qualitative elements of the definition in Article  4.1(c) of the Agreement on Safeguards . Japan 
has failed to demonstrate that, despite such high proportion, the domestic produc tion as defined by 
the Indian competent authority was not representative of the total domestic production  in India.  
7.168.   Considering the above, we find that Japan has not demonstrated that India failed to meet 
the requirement of "a major proportion" under Article  4.1(c) of the Agreement on Safeguards. 
Accordingly, w e also reject Japan 's consequential claims in this regard un der 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.  
7.8  Whether India acte d inconsistently with Articles  2.1, 4.1(a), 4.1(b),  and 4.2 (a) of the 
Agreement on Safeguards and Article  XIX:1(a) of the GATT  1994 with  respect to its 
determination of  serious injury and threat of serious injury  
7.8.1   Introduction  
7.169.   With respect to India 's determination of serious injury and threat of serious injury, Japan 
has brought the following claims:  
a. that India acted i nconsistently with Articles  4.1(a) and 4.2(a) of the Agreement on 
Safeguards, by failing to properly evaluate certain injury factors (such as the share of the 
domestic market taken by increased imports, prices, profits and losses) and by failing to 
provide  reasoned and adequate explanation regarding other factors showing positive 
trends;  
b. that India acted inconsistently with Article  4.2(a), by failing to base its analysis of the 
existence of serious injury on objective data;  
c. that India 's alleged determinatio n of threat of serious injury is inconsistent with 
Articles  4.1(b) and 4.2(a); and  
d. as a consequence of the above alleged violations, that India acted inconsistently with 
Article  2.1 of the Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994.  
7.170.   We w ill first summarize the relevant facts regarding the Indian competent 
authority 's determination on serious injury and threat of serious injury.  We will then turn to 
considering Japan 's claim regarding the Indian competent authority 's evaluation of the shar e of the 
domestic market taken by increased imports, the prices, profits and losses, as well as the 
examination of other factors showing positive trends. After that, we will address Japan 's claim that 
India failed to base its analysis of serious injury on objective data. Finally, we will consider 
Japan 's claims regarding an alleged finding of threat of serious injury in addition to the finding of 
serious injury.  
7.8.2   The Indian competent authority 's determination regarding serious injury and threat 
thereof  
7.171.   In its serious injury analysis, the Indian competent authority evaluated the following factors 
having a bearing on the situation of the domestic industry (i)  production , (ii) changes in the level of 
                                                
281 Appellate Body Report, EC – Fasteners ( China ) (Article  21.5 – China ), para. 5.303 . 
282 Appellate Body Report, EC – Fasteners (China) , para. 419. WT/DS518/ R 
 
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  sales, (iii) market shares of imports and the domestic industry , (iv) capacity utilization , 
(v) employment , (vi) productivity , (vii) profits and losses , (viii) inventories , and (ix)  price effects. 
Following the evaluation of these factors, the Indian competent authority  observed that  some of the 
factors such a s production, sales, capacity utilizatio n, employment, productivity, and inventories 
remained stable over the POI. The domestic industry 's profitability declined sharply leading to losses, 
its prices went down, and its market share declined due to the incr ease in  imports , all of which led 
to a serious injury to the domestic industry by way of financial losses.283 
7.172.   The Indian competent authority evaluated most of the injury factors during the POI, which 
includes three financial years (i)  2013-2014, (ii) 2014 -2015, and (iii) 2015 -2016 (annualized).284 
The trends in prices, profitability, and inventories were evaluated du ring the two financial years 
of 2013-2014 and 2014 -2015, and the first quarter of 2015 -2016.285 
7.173.   The Indian competent authority observed that the dema nd for the product concerned in 
India increased during the POI . However, d espite the increase in demand, the production, 
employment, and sales of the domestic industry "remained stagnant ", while inventories slightly  
increased. While the domestic industry increased its production capacity to meet the increased 
demand in India, it was unable to increase its capacity utilization, production , and sales.  Most of the 
share of increased demand was taken by imports. The profitability of  the domestic industry 
decreased significantly and turned into losses.  An evaluation of all relevant factors having a be aring 
on the situation of the domestic industry showed  a "significant overall impairment " of the situation 
of the domestic industry . The Indian competent authority  concluded that the domestic industry 
suffered serious injury as a result  of the increased imports of the product concerned .286 
7.174.   The Indian competent authority further indicated that, given "the surplus production 
capacities availab le" to foreign producers, the imports would continue to increase. Considering t he 
likelihood of further increase in import s, it concluded that "there is a threat of further serious injury 
to the domestic market. " The Indian competent authority found that t he domestic industry "faces 
serious injury and a further threat of greater serious injury" .287 
7.175.   In the final section of the Final Findings titled "Recommendations", the Indian competent 
authority concluded that the increased imports of the product concerned " have caused serious injury 
and are threatening to cause serious inj uries to the domestic producers ".288 
7.8.3   Serious Injury  
7.8.3.1   Articles  4.1(a) and 4.2(a) of the Agreement on Safeguards  
7.176.   Article  4.1(a) of the Agreement on Safeguards  defines "serious injury" for the purposes of 
this agreement as "a significant overall impairment in the position of a domestic industry". 
Article  4.2(a) reads as follows : 
In the investigation to determine whether increased imports have caused or are 
threatening to cause serious in jury to a domestic industry under the terms of this 
Agreement, the competent authorities shall evaluate all relevant factors of an objective 
and quantifiable nature having a bearing on the situation of that industry, in particular, 
the rate and amount of t he increase in imports of the product concerned in absolute 
and relative terms, the share of the domestic market taken by increased imports, 
changes in the level of sales, production, productivity, capacity utilization, profits and 
losses, and employment.  
7.177.   The standard of serious injury under Article  4.1(a) of the Agreement on Safeguards  has been 
described as a "very high standard of injury". The word "serious" implies a "much higher" standard 
                                                
283 Final Findings, (Exhibits JPN -11/IND -11), paras.  49-50, pp.  198-200. 
284 Preliminary Findings, (Exhibit s JPN-7/IND -7), para. 9, p. 13; Final Findings, 
(Exhibit s JPN-11/IND -11), paras.  31 and 49 , pp. 196 and 198 -199. 
285 Final Fi ndings, (Exhibit s JPN-11/IND -11), para. 49 (g) , pp.198 -199. 
286 Final Findings, (Exhibits JPN -11/IND -11), paras.  56-58, p.  201. 
287 Final Findings, (Exhibits JPN -11/IND -11), para.  59. 
288 Final Findings, ( Exhibits JPN -11/IND -11), section R(a), p. 208. 
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  of injury than the word "material" used by the Anti -Dumping and the SCM Agreement s.289 In order 
to make a determination of serious injury , Article  4.2(a) requires a competent authority to  evaluate 
"all relevant factors of an objective and quantifiable nature having a bearing on the situation of that 
industry" . Article  4.2(a) does not provide any specific methodology as to how the relevant factors  
shall be examined . The Appellate Body has clarified that an objective assessment of a claim under 
Article  4.2(a) has two elements. A panel must consider, first, whether the compet ent authority has 
evaluated all relevant factors and, second, whether the competent authority has provided a reasoned 
and adequate explanation of how the facts support its determination.290 
7.178.   The determination of serious injury must be made on the basis of the  "overall position of the 
domestic industry, in light of all the relevant factors having a bearing on the situation of that 
industry".291 In other words, a competent authority is required to make its determination based on 
an evaluation of all injury factors  "as a whole".292 In order to demonstrate a "significant overall 
impairment", a competent authority does not need to show a negative trend in each factor listed in 
Article  4.2(a), rather "it is the totality of the trends, and their interaction, which must be  taken into 
account in  a serious injury determination ".293 At the same time, positive trends in some factors 
would require a compelling explanation by the competent authority of why and how the domestic 
industry is still injured despite such positive trends.294 
7.8.3.2   Whether the Indian competent authority evaluated relevant injury factors 
consistently with Articles  4.1(a) and 4.2(a)  
7.8.3.2.1   The share of the domestic market taken by increased imports  
7.179.   Article  4.2(a) of the Agreement on Safeguards  lists the share of the domestic market taken 
by increased imports among the mandatory factors that a competent authority must evaluate in 
determining whether increased imports have caused or are threatening to cause serious injury to 
the domestic industry. In the Final Findings,  the Indian competent authority concluded that over the 
POI the market share of imports increased from 5% to 13%, while the market share of the domestic 
industry decreased from 45% to 37%.295 Japan contends  that the Indian competent authority failed 
to prope rly evaluate and provide a reasoned and adequate explanation regarding the effect of the 
decline in the domestic industry 's market share on the situation of the domestic industry.  
7.180.   Japan argues that the Indian competent authority failed to explain why a dec rease in the 
domestic industry 's market share is indicative of serious injury, given that the domestic demand was 
expanding and the domestic industry 's sales increased. Japan submits that the Indian competent 
authority failed to consider other reasons why the domestic industry maintained its volume of 
non-captive sales , but did not meet the increasing demand. Japan suggests, for instance, that the 
market share of the domestic industry might have decreased due to either a limited domestic 
production capacity  to meet increasing demand, the domestic industry 's decision to shift its sales to 
its captive market, or the increased demand for products that the domestic industry did not 
produce.296 Japan also submits that the Indian competent authority focused its anal ysis on the 
non-captive segment of the domestic industry, without evaluating the captive segment, and 
therefore failed to examine the market share with regard to the entire domestic industry.297 
7.181.   India responds that Article  4.2(a) of the Agreement on Safeguar ds requires a competent 
authority to evaluate "the share of the domestic market taken by increased imports ", which is distinct 
                                                
289 Appellate Body Report, US – Lamb , paras.  124 and 126.  
290 Appellate Body Report, US – Lamb , para.  103. See also Panel Reports, Ukraine – Passenger Cars , 
para. 7.248; and Dominican Republic – Safeguard Measures , para.  7.260.  
291 Panel Report, US – Wheat Gluten , para.  8.80 (referring to Appellate Body Report, Argentina – 
Footwear (EC) , paras.  138-139).  
292 Panel Report, US – Lamb , para.  7.188.  
293 Panel Report, US – Wheat Gluten , para.  8.85 (referring to Appellate Body Report, Argentina – 
Footwear (EC) , para.  139).  
294 Panel Report s, Thailand – H-Beams , para. 7.249; China – Cellulose Pulp , para.  7.129 (in the context 
of a similar provision in the Anti -Dumping Agreement).  
295 Final Findings, (Exhibits JPN -11/IND -11), para.  49(c), p.  198. 
296 Japan's  first written submission, paras.  279-280; second written submission, paras.  147-149. 
297 Japan's  first written submission, paras.  281-290 (referring to Appellate Body Report, US – Hot-Rolled 
Steel, paras.  204 and 207); second written submission, par as. 150-155. 
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  from the language in the Anti -Dumping Agreement that refers to a "decline " in the domestic 
industry 's market share. India argues that, under Article  4.2(a), a competent authority has to 
establish whether the domestic industry lost market share to imports.298 India asserts that its 
competent authority found that the market share of imports had increased, whil e the domestic 
industry 's market share had decreased during the same period.299 India rejects Japan 's claim that 
the market share was evaluated only with respect to the non-captive segment.300 India submits that 
the Indian competent authority, when considering  market share, examined the entire domestic 
market, including captive and non -captive  sales of the domestic industry, sales of other domestic 
producers, and imports.301 
7.182.   As we indicated above, when addressing a claim under Article  4.2(a), a panel must conside r 
whether a competent authority has evaluated all relevant factors and has provided a reasoned and 
adequate explanation of how the facts support its injury determination.  There is no disagreement 
between the parties that the Indian competent authority eval uated the market share of increased 
imports in its Final Findings. Therefore, the question before us is whether, in its evaluation of the 
share of the domestic market taken by increased imports, the Indian competent authority provided 
a reasoned and adequa te explanation in the context of the overall examination of the situation of 
the domestic industry.  
7.183.   In the Final Findings, the Indian competent authority considered the following data regarding 
the market share s of imports and the domestic industry:  
Table 3: Changes in the level of sales and market shares  
Financial 
Year  Total 
Import 
(MT)  Sales of DI 
(MT)  Sales of 
other Indian 
Producers 
(MT)  Captive 
Sale of 
DI(MT)  Captive 
Sale of 
Others 
(MT)  Total 
Demand 
(MT)  Market Share 
(%) 
DI Imports  
2013-14 1,252,441  10,342,565  2,994,323  4,274,000  4,000,724  22,864,053  45 5 
2014-15 2,644,911  9,949,214  3,298,273  5,019,741  4,615,864  25,528,003  39 10 
2015-16(Q1)  881,233  2,589,929  1,065,972  1,321,497  1,180,681  7,039,312    
2015-16(A)  3,524,932  10,359,716  4,263,888  5,285,988  4,722,724  28,157,248  37 13 
Source: Final Findings, (Exhibit s JPN-11/IND-11), para. 49(b), p. 198. 
7.184.   Based on these data, the Indian competent authority concluded that:  
Imports had a market share of 5% in 2013 -14 which increased to 13% 
during  2015-16(A) whereas the market share of Domestic industry decreased from 45% 
to 37% during the same period.302 
7.185.   When addressing the interested parties ' arguments, the Indian competent authority also 
noted that the market share of domest ic producers outside the domestic industry inc reased by 
two percentage points  in 2015 -2016 compared to 2014 -2015.303 
7.186.   Further, in its examination of the situation of the domestic industry, the Indian competent 
authority stated that:  
Imports have taken away mo st of share of the increase in demand of the subject goods. 
In 2014 -15, while demand excluding captive increased by [1,303,069] MT and imports 
increased much more by [1,392,470] MT. This shows the aggressive manner in which 
imports of the [product under co nsideration] are entering the Indian market. The 
domestic industry had raised its capacities foreseeing the increasing demand in India. 
                                                
298 India's  first written submission, para.  199. 
299 India's  first written submission, paras.  199 and 202 (referring to Final Findings, (Exhibit IND -11), 
para. 49(c), p.  198).  
300 India's  first written submission, para.  215. 
301 India's  first written submission, paras.  206 and 213.  
302 Final Findings, (Exhibits JPN -11/IND -11), para.  49(c), p.  198. See also ibid. para.  97, p 207.  
303 Final Findings, (Exhibits JPN -11/IND -11), para.  97, p.  207. 
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  However, the domestic industry is unable to increase its capacity utilization, production 
and sales.304 
7.187.   We begin by noting  that the product concerned ( hot-rolled coils ) is an intermediate good 
used in the production of various downstream steel products (e.g. cold rolled sheets, electrical 
sheets, coating , and plating sheets). The product concerned can be sold externally (open or 
non-captive market) as well as used internally to manufacture downstream steel products  (captive 
market).305 In the latter situation, the product concerned is not sold into an open o r non -captive 
market, where it competes with imports, but is transferred internally to an integrated producer.  The 
Indian competent authority 's findings above show that, when it assessed the share of the domestic 
market taken by imports, it considered both  the captive and the non -captive segments of the market.  
7.188.   The market shares of both imports and domestic industry were assessed based on the total 
demand (captive and non -captive). The domestic industry lost sales and market share in the 
non-captive segment , while it was able to maintain its market share represented by the captive 
market (19%).306 Over the POI, the market share of imports increased by 8 percentage points, while 
the domestic industry 's market share decreased by a similar 8 percentage points. Ot her domestic 
producers not part of the domestic industry maintained the same market share during the first two 
years of POI (13%) and gained 2 percentage points of the market share (15%) towards the end of 
the POI.307 The data in table 3 also shows that the total demand in the Indian  market for the product 
concerned grew by 23% from 22,864,053 tonnes  to 28,157,248 tonnes  over the POI.  The domestic 
industry increased its s ales by 1,029,139  tonnes, which allowed it to keep its market share in the 
captive market. The sales of the domestic industry in the non -captive segment, where it competes 
with imports, remained nearly the same over the POI. This suggests that the share of  the increased 
demand in the non -captive segment was taken by imports and by domestic producers not part of 
the domestic industry. Given that the market share of imports increased by 8 percentage points and 
domestic producers outside  the domestic industry gained 2  percentage points, we consider that the 
Indian competent authority reasonably concluded that "imports have taken away most of share of 
the increase in demand of the subject goods" .308 
7.189.   Next, the Indian competent authority considered that, notwithstan ding the expanded 
production capacity309, the domestic industry could not increase its sales and capacity utilization 
commensurate with the surge in demand due to the competition with the increased imports.310 The 
Final Findings note that the level of capacity  utilization of the domestic industry over the POI 
remained the same, around 76%.311 In our view, it is not unreasonable for a competent authority to 
consider that the fact that the domestic industry could not keep its market share in front of increasing 
demand indicates a negative trend in the situation of the domestic industry, considering that the 
domestic industry had available production capacity to meet the growing demand.312 
7.190.   Finally, we consider Japan 's argument that the Indian competent authority focuse d its 
analysis on the non -captive segment of the domestic industry, without evaluating the captive 
segment. In US – Hot-Rolled Steel , the Appellate Body addressed t he question of examining captive 
and non -captive markets in an injury analysis in the contex t of the Anti -Dumping Agreement. The 
Appellate Body  observed that in an industry "where a signi ficant part of domestic production – 
captive production – is shielded by the structure of the domestic market from direct competition 
with imports", a comparison  between the captive and the merchant markets is important, because 
                                                
304 Final Findings, (Exhibits JPN -11/IND -11), para.  56, p.  201. 
305 Japan's  first written submission, para.  45. 
306 See table 4 below.  
307 Final Findings, (Exhibits JPN -11/IND -11), paras.  49(b) and 97, pp.  198 and 207.  
308 Emphasis added.  
309 According to the domestic industry's  application, in 2011 -2013, the domestic industry increased its 
production capacity from 18,768,996 to 23,568,996 tonnes. (Revised Application, (Exhibits JPN -6/IND -20), 
p. 15). 
310 Final Findings, (Exhibits JPN -11/IND -11), paras.  (i)(cc) and 56, pp.  174 and 201.  
311 Final Findings, (Exhibits JPN -11/IND -11), paras.  49(d) and 50, pp.  199-200. 
312 Japan also argues that the decrease in the market share of the domestic industry might have been 
due to the fact that the increase in  demand was for products that were not produced by the domestic industry . 
(Japan 's first written submission, para. 280). We do not view such an enquiry to be necessary in the context of 
Article  4.2(a). We consider that the increase in demand for certain pr oducts or change in consumer preferences 
may be regarded as a non -attribution factor under the second sentence of Article  4.2(b) . 
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  it "enhances" the ability of the investigating authorities to make an appropriate determination about 
the state of the domestic industry as a whole.313 The examination of only one part of th e domestic 
industry may lead " [to] highlighting the negative data in the poorly performing part, without drawing 
attention to the positive data in other parts of the industry ".314 The Appellate Body stated that "the 
identification, investigation and evaluati on of the relevant factors must be even -handed. Thus, 
investigating authorities are not entitled to conduct their investigation in such a way that it becomes 
more likely that, as a result of the fact -finding or evaluation process, they will determine that the 
domestic industry is injured" .315 We find that these considerations are equally applicable to the 
similarly worded provisions concerning injury analysis in the Agreement  on Safeguards . 
7.191.   As we indicated above, the Indian competent authority considered both  captive and 
non-captive segments  in its evaluation of market shares . The facts of the present case do not suggest 
that the deterioration of the situation of the domestic industry in the non -captive market happened 
due to shift of sales from non -captive to captive markets, as Japan alleged.316 
Table 4: Domestic industry 's market share  
Year Domestic Industry  Total Demand  Non-Captive  Captive  Total  
2013-2014 10,342,565 (45%)  4,274,000 (19%)  14,616,565 (64%)  22,864,053  
2014-2015 9,949,214 (39%)  5,019,741 (20%)  14,968,955 (59%)  25,528,003  
2015-2016 (A)  10,359,716 (37%)  5,285,988 (19%)  15,645,704 (56%)  28,157,248  
Source: Japan 's first written submission, p. 82. 
7.192.   As indicated in the Final Findings, the domestic industry 's market share in the non -captive 
market decreased by eight percentage points during the POI, from 45% to 37% . The data on the 
domestic industry 's captive sales show that the market share of the domestic industry represented 
by the captive segment remained s table over the POI (19%). Notably, the market share of the 
domestic industry covering both the captive and the non -captive s egments also decreased by 
eight percentage points from 64% to 56%.  Even though the share of captive sales increased by one 
percentag e point in 2014 -2015 in comparison to 2013 -2014, this change does not fully explain the 
decrease of the domestic industry 's market share by eight percentage points over the POI and thus 
does not distort the findings of the Indian competent authority.  
7.193.   In light of the foregoing, we conclude that Japan has not demonstrated that the Indian 
competent authority failed to properly evaluate and provide reasoned and adequate explanations 
regarding the effect of the decline in the domestic industry 's market share on the situation of the 
domestic industry.  
7.8.3.2.2   Profits and losses  
7.194.   Article  4.2(a) of the Agreement on Safeguards  specifies "profits and losses" among the 
relevant factors of an objective and quantifiable nature having a bearing on the situation of the 
domestic ind ustry that a competent authority  must evaluate in its serious injury analysis. In the 
Final Findings, the Indian competent authority found that the profitability of the domestic industry 
declined sharply in the first quarter of 2015 -2016 and the domestic i ndustry recorded losses.317 The 
Indian competent authority considered that "[t]he major reason for decline in profitability of 
domestic industry is the increased imports at reduced prices" .318 Article  4.2(a) of the Agreement on 
Safeguards  does not list prices  among the mandatory  factors that a competent authority  must 
evaluate in its injury analysis. The list  of relevant factors provided in Article  4.2(a) , however,  is not 
exhaustive and a competent authority can and should evaluate any other relevant factors t hat have 
a bearing on the situation of the domestic industry.  Japan challenges the Indian competent 
                                                
313 Appellate Body Report, US – Hot-Rolled Steel , para.  207. 
314 Appellate Body Report, US – Hot-Rolled Steel , para.  204. 
315 Appellate Body Report, US – Hot-Rolled Steel , para.  196. 
316 Japan's  first written submission, para.  280; second written submission, para.  155. 
317 Final Findings , (Exhibits JPN -11/IND -11), para.  49(f), p. 199. 
318 Final Findings , (Exhibits JPN -11/IND -11), para . 56, p.  201. WT/DS518/ R 
 
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  authority 's evaluation of domestic industry "profits and losses" as well as the effect the import prices 
had on the domestic industry 's prices . 
7.195.   First, Japan  submits that the Indian competent authority failed to provide an adequate 
explanation regarding the effect of the decrease in the domestic industry 's prices (from 100 to 83) 
on its financial condition, considering that the costs of sales also decreased (f rom 100 to 94) (all 
indexed). For Japan, the indication that the domestic prices declined "much more sharply" is not a 
sufficient explanation of the effect of this factor on the domestic industry, especially given that it is 
based exclusively on indexed da ta.319 Second, Japan submits that the Indian competent authority 
failed to consider the data on profitability pertaining to the entire POI, because it focused only on 
the recent data. In particular, the Indian competent authority referred to the decrease in profitability 
in the first quarter of 2015 -2016 and failed to take into account the increase in profitability in 
2013-2014 and 2014 -2015.320 Third, Japan argues that the Indian competent authority failed to 
evaluate these two factors with regard to the entir e domestic industry, when it excluded information 
regarding price trends and profitability in the captive segment of the market.321 
7.196.   India refers to the Final Findings  that the import prices declined sharply from 100 to 78 and 
the domestic industry 's prices  declined from 100 to 83 , while the domestic industry 's cost of sales 
decreased only from 100 to 94  (all indexed), which led to a decline in profitability  for the domestic 
industry. India notes that the  domestic industry 's prices declined more sharply than the cost of 
sales.322 India further  submits that profitability declined substa ntially in the first quarter 
of 2015-2016, leading to losses.323 India argues  that the domestic industry 's profitability was 
analysed over the entire POI, and the fact  that the domes tic industry was profitable in the preceding 
two years of the POI and had losses at the end of the POI indicates that there was a serious injury 
to the domestic industry. India adds that the data from the most recent past have special 
importance.324 With reg ard to Japan 's argument on the captive market, India replies that the captive 
production was considered when evaluating production, demand, inventory, and capacity utilization. 
India argues that captive production cannot be considered for sales data and pr ofitability, because 
the captive segment does not involve sales transactions.325 
7.197.   In the Final Findings, the Indian competent authority stated that : 
[T]he domestic Industry was always under consistent pressure to either reduce their 
prices to match the import  prices or to hold on to their prices. The penetration of 
increased imports at an unprecedented high level was such that even after reducing the 
prices, the domestic industry was not able to keep on to its market share. This has 
resulted into losses during  2015-16(Q1) for the domestic industry.326 
7.198.   The Indian competent authority considered the changes in import prices, and in the domestic 
industry 's prices , costs,  and profitability  as follows:  
                                                
319 Japan's  first written submission, paras.  292-296; second written submission, para.  158. 
320 Japan's  first written submission, para.  302; second written submission, paras.  162-163. 
321 Japan's  first written submission, paras.  297 and 303; second  written submission, paras.  159-160 
and 164. 
322 India's  first written submission, paras.  217-218 and 222 (referring to Final Findings, 
(Exhibit  IND-11), paras.  49(f) and 49(g), pp.  199-200).  
323 India's  first written submission, paras.  218 and 222.  
324 India's  first written submission, para.  223 (referring to the Appellate Body Report, US – Lamb , 
para. 138).  
325 India's  response to Panel question No.  49. 
326 Final Findings, (Exhibits JPN -11/IND -11), para.  49(g)(ii)(a) , pp. 199-200. 
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  Table 5: Changes in prices  and profitability  
Components (Indexed)  Unit 2013 -14 2014 -15 2015 -16 (Q1)  
Cost of Sales  INR/MT 100 97 94 
Weighted average sales 
realization327 INR/MT 100 99 83 
Landed price of imports  INR/MT 100 95 78 
Profit/ (Loss)  INR/MT 100 136 (114)  
Source: Final Findings , (Exhibits JPN -11/IND -11), para. 49(g)(ii)(a) , p. 200. 
7.199.   Based on the above data, the Indian competent authority noted that:  
It is seen from above that while the Index of cost of sales come down from 100 to 94, 
the landed price of imports declined s harply from 100 to 78 leading to reduction in sales 
realization which declined from 100 to 83. While comparing the sales realization 
vis-à-vis cost of sales, it is observed that the sales realization declined much more 
sharply than the cost of sales. There  was as substantial decline in profitability index 
from 136 in 2014 -15 to (114) in 2015 -16 (Q1).328 
7.200.   In its examination of the situation of the domestic industry, the Indian competent authority 
concluded that "[t]he major reason for decline in profitability o f domestic industry is the increased 
imports at reduced prices" .329 
7.201.   Similarly to its arguments regarding the market share analysis, Japan submits that the 
Indian competent authority failed to consider the captive segment of the domestic industry in its 
evalu ation of the domestic industry 's prices and profitability.  
7.202.   As India noted,  since the captive market does not involve commercial transactions, there 
are no price data available for the captive market. Furthermore, as discussed above, the Indian 
competent au thority considered the domestic industry 's sales in both the captive and the 
non-captive segments of the market, and found that the domestic industry lost sales to imports in 
the non -captive market. Given that the domestic industry competes with imports in  the non -captive 
market, we consider that it was reasonable to compare import prices with the domestic 
industry 's prices, and associated profitability, in the non -captive market. Therefore, we do not think 
that an additional explanation with regard to pric es and profitability in the captive market was 
necessary in light of the facts of this case.  
7.203.   We also disagree with Japan 's argument that the use of indexed data distorted the evaluation 
of prices, given that the Indian competent authority 's conclusion is based on the analysis of trends 
in costs and prices of the domestic industry as well as trends in import prices. India explained that 
its competent authority conducted the price analysis on the basis of actual data from the domestic 
industry and indexed figures were used in published reports in order to comply with the 
confidentiality requirement under Article  3.2 of the Agreement on Safeguards.330 
7.204.   Nonetheless, a sharp decline in prices occurred only in the first quarter of 2015 -2016, as 
compare d to the preceding full financial years, where the domestic industry 's prices were stable and 
declined marginally from 100 to 99 (indexed). These trends warrant a reasoned and adequate 
explanation from the Indian competent authority as to why valid conclus ions may be drawn by 
comparing the average prices of full financial years to the average prices of a quarter. In particular, 
the Indian competent authority should have provided a sufficient explanation of why it could exclude 
                                                
327 In response to Panel question No . 114, India clarified that "[w] eighted average sales realization" 
refers to "the weighted average of the average sales realization of all the applicant companies. The average 
sales realization and the quantity of all the applicant companies were multiplie d respectively and the combined 
total then divided by the total sales quantity to arrive at the weighted average sales realization. The cost of 
sale is also weighted similarly ". 
328 Final Findings, (Exhibits JPN -11/IND -11), para.  49(g)(ii)(b) , p. 200. 
329 Final Findings, (Exhibits JPN -11/IND -11), para.  56, p. 201. 
330 India's  first written submission, para.  265. 
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  the fact that the higher rate of price decrease in the first quarter of 2015 -2016 might reflect a 
seasonal or temporal downturn in prices in a given quarter of the year.331 
7.205.   Furthermore, the data on profitability show that the domestic industry remained profitable 
during most of the POI a nd experienced losses only during the la st three months, i.e. the first  quarter 
of 2015 -2016.  The Indian competent authority relied on the losses suffered by the domestic industry 
in the first quarter of 2015 -2016 as one of the main indicators of serious i njury to the domestic 
industry. It considered that the decline in market share of the domestic industry and the decline in 
import prices led to the financial losses recorded by the domestic industry. In our view, even though 
the losses in the first quarter  of 2015 -2016 refer to the most recent data available over the POI, the 
competent authority should have evaluated this information in the context of the entire POI.332 As 
seen from the above table, the domestic industry 's profits increased considerably from 100 to 136 
(indexed) in 2014 -2015 compared to base year of 2013 -2014. The losses in the first quarter 
2015-2016 refer to three months only, April -June 2015, and were compared with the profitability 
rate of full financial years of 2013 -2014 and 2015 -2016. I n our view, this analysis warrants an 
explanation by the Indian competent authority of why a comparison of three -months data of the 
first quarter of 2015 -2016 to the full financial years is valid, especially considering the sharp change 
between gaining con siderable profits during the most of the POI and suffering losses during the last 
three months of the POI. In particular, the Indian competent authority should have provided a 
reasoned and adequate explanation of why it could exclude the fact that the loss es in the first quarter 
of 2015 -2016 might reflect a seasonal or temporal circumstance.  
7.206.   We conclude that the Indian competent authority failed to properly evaluate and sufficiently 
explain the changes in import prices and their effect on the domestic  indus try's prices and therefore 
on profitability.  
7.8.3.2.3   Evaluation of injury factors showing stable or positive trends  
7.207.   Japan argues that the Indian competent authority failed to explain its finding of serious injury 
suffered by the domestic industry, given the positi ve trends in certain injury factors.333 Japan 
submits that most of the injury factors, such as production, sales, capacity utilization, employment, 
productivity, and inventories, showed stable or positive trends. Japan contends that the Indian 
competent auth ority should have explained why it determined the existence of serious injury for the 
domestic industry, despite the evidence that these factors showed stable or positive trends.334 
7.208.   India responds that a competent authority is not required to explain in detail how each factor 
individually supports the finding of serious injury for the domestic industry  or to show a negative 
trend in each factor to justify its finding of serious injury .335 India disagrees with Japan that its 
competent authority failed to provide an adequate explanation regarding changes in the level of 
sales, capacity utilization, employment, productivity , and inventories. According to India, its 
competent authority consi dered that, regardless of the increase in demand, the production, 
employment, and sales of the domestic industry "have remained stagnant ", which indicates the 
existence of serious injury to the domestic industry.336 
                                                
331 In the context of our examination of Japan's  claims under Article  4.2(b), we also conclude that the 
Indian competent authority failed to properly examine the price competition between imported and domestic 
products, when it based its price comparison on the average unit price of imported products and the average 
unit price of the like or directly competitive domestic products  (see para.  7.256  below).  
332 The Appellate Body in US – Lamb  stated that:  
The real significance of the short term trends in the most recent data, evident at the end of the 
period of investigation, may only emerge when those short -term trends are assessed in the light 
of the longer -term trends in the data for the whole period of investigation.  
(Appellate Body Report, US – Lamb , para.  138).  
333 Japan's  first written submission, para . 275. 
334 Japan's  first written submission, paras.  306-309 (referring to Panel Report, Dominican Republic – 
Safeguard Measures , para.  7.313); second written submission, paras.  165-167. 
335 India's  first written submission, paras.  194-195 (referring to Appella te Body Report, Argentina – 
Footwear  (EC), para.  139; and Panel Report, US – Lamb , para.  7.203).  
336 India's  first written submission, para.  197 (referring to Final Findings, (Exhibit IND -11), para.  56, 
p. 201).  
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  7.209.   We recall that pursuant to Article  4.2(a) of the Agreement on Safeguards  a competent 
authority must determine serious injury on the basis of the overall position of the domestic industry, 
considering all the relevant factors having a bearing on the situation of that industry.337 A competent 
authorit y should take into account the totality of the trends in injury factors  and their interaction .338 
If a number of injury trends show a positive trend or an improvement in the situation of the domestic 
industry, the competent authority  would need to provide a compelling explanation of why and how 
the domestic industry is injured despite such positive trends.339 Therefore, we will examine whether , 
in its evaluation of positive trends of the domestic industry and  their interaction with other trends, 
the Indian comp etent authority  provided a reasoned and sufficient explanation  in its Final Findings . 
7.210.   The Indian competent authority evaluated the following factors having a bearing on the 
situation of the domestic industry: production, changes in the level of sales, mark et share, capacity 
utilization, employment, productivity, profits and losses, inventories, and price effects. It found that 
several factors remained "stagnant" over the POI:  
Table 6: Factors analysed by India  
Injury Factor  2013 -2014  2014 -2015  2015 -2016(Q1)  2015 -2016 
(Annualized)  
Production (MT)  17,881,187  17,836,937  4,456,795  17,827,180  
Production (trend)  100 100  100 
Capacity utilization  75.9 75.7 - 75.7 
Number of Employees  
(Indexed)  100 100 100 100 
Productivity (Indexed)  
Per employee (MT)  100 100 - 100 
Inventories (MT)  636,879  648,290  657,099  - 
Inventories (MT) 
(Indexed)  100 102 103 - 
Source: Final Findings , (Exhibits JPN -11/IND -11), p p. 198-199. 
7.211.   In addition, as noted above, the Indian competent authority observed  that the total sales of 
the domestic industry increased over the POI from 14,616,565  tonnes  to 15,645,704  tonnes, mainly 
due to the increase in captive sales by 1,011,988 tonnes. However, relative to growing consumption, 
captive sales remained the same (19% of the market share), and non -captive sales went down 
(market share decreased from 45% to 37%). The dom estic industry 's prices declined and the 
domestic industry suffered financial losses.  
7.212.   The Indian competent authority provided an overall assessment of the situation of the 
domestic industry, stating:  
From the above analysis it is seen that the demand for t he [product under consideration] 
in India has increased in the injury analysis period. Despite increase in demand, the 
production, employment and sales of domestic industry have remained stagnant, while 
inventories have somewhat increased. Imports have tak en away most of share of the 
increase in demand of the subject goods. In 2014 -15, while demand excluding captive 
increased by [1,303,069] MT and imports increased much more by [1,392,470] MT. 
This shows the aggressive manner in which imports of the [produc t under consideration] 
are entering the Indian market. The domestic industry had raised its capacities 
foreseeing the increasing demand in India. However, the domestic industry is unable to 
increase its capacity utilization, production and sales. The profi tability has gone down 
drastically and even turned to losses during 2015 -16(Q1). The major reason for decline 
in profitability of domestic industry is the increased imports at reduced prices. If the 
same trend continues, the domestic industry fears that th ey would be forced to shut 
down their operations.340 
                                                
337 Panel Reports, US – Wheat Gluten , para.  8.80; US – Lamb , para.  7.188.  
338 Panel Report, US – Wheat Gluten , para.  8.85. 
339 Panel Report s, Thailand – H-Beams , para. 7.249; China – Cellulose Pulp , para.  7.129 (in the context 
of a similar provision in the Anti -Dumping Agreement).  
340 Final Findings, (Exhibits JPN -11/IND -11), para.  56, p.  201. WT/DS518/ R 
 
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  7.213.   We disagree with Japan that India failed to provide any explanation regarding the positive 
trends in certain injury factors. The fact that several factors showed some amelioration or did not 
show a deterio rating trend at all does not necessarily imply an improvement in the performance of 
the domestic industry. The Indian competent authority explained that, despite the increase in 
demand, many factors remained "stagnant" during the POI . The Indian competent authority found 
that the demand for the product concerned had increased from 22,864,053  tonnes to 
28,157,248  tonnes (a 23% increase) over the POI. The domestic industry increased its production 
capacity anticipating the market  expansion341, but was not able to increase its production, 
non-captive sales, and capacity utilization. In our view, it is not unreasonable for a competent 
authority to consider that "stagnant" trends in several injury factors in light of a considerable 
increase in demand, may constitut e negative trends in the overall situation of the domestic industry. 
In the present case, the Indian competent authority noted that the domestic industry increased its 
production capacity and had available capacity to meet the growing demand, but its perfo rmance 
did not improve in step with the increasing demand.  
7.214.   We conclude that Japan has not demonstrated that India failed to explain its finding of 
serious injury suffered by the domestic industry, given the positive trends in certain injury factors.  
7.8.3.2.4   Conclu sion 
7.215.   We note that the Indian competent authority based its conclusion on the situation of the 
domestic industry largely on the fact that the domestic industry 's market share and prices decreased 
leading to financial losses. We have found above that the Indian competent authority failed to 
properly evaluate the domestic industry 's prices and profitability and to provide a reasoned and 
adequate explanation  of these factors in light of its overall conclusion on the situation of the domestic 
industry. For th ese reasons, we find that Japan has demonstrated that India acted inconsistently 
with Articles  4.1(a) and 4.2(a) of the Agreement on Safeguards in its assessment of the situation of 
the domestic industry.  
7.8.3.3   Whether the Indian competent authority failed to ba se its serious injury 
determination on objective data  
7.216.    Japan contends that India acted inconsistently with Article  4.2(a) of the Agreement on 
Safeguards by failing to base its determination of serious injury on objective data. Japan submits 
that the Indian  competent authority based its analysis of the injury factors in 2015 -2016 on the data 
pertaining to the first quarter of 2015 -2016. Japan argues that the Indian competent authority failed 
to explain its assumption that the data for the first quarter of 20 15-2016 are representative of the 
entire year  and thus could be annualized .342 India denies Japan 's claim that the serious injury 
analysis was not based on objective data. India submits that the data for the first quarter of 
2015-2016 have been annualized to  make a proper comparison with the data for previous years.343 
7.217.   We recall that the POI in the underlying investigation covered three financial years 
(i) 2013-2014, (ii) 2014 -2015, and (iii) 2015 -2016 (annualized).  Before the Panel, India asserts that 
the POI was, in fact, from 1 April 2013 to 30 June 2015, coverin g two financial years and 
three  months.344 India asserts  that the first quarter of 2015 -2016 was only annualized to make the 
data of this period comparable to the full year data of the preceding periods .345 The Indian competent 
authority used annualized data for the last financial year of POI, when it evaluated most of the injury 
factors, namely production, changes in the level of sales, market share, capacity utilization, 
employment , and productivity.346 These factors are listed in Article  4.2(a) of the Agreement on 
Safeguards among the relevant factors "of objective and quantifiable nature" having a bearing on 
                                                
341 According to the domestic industry's  application, in 2011 -2013, the domestic industry increased its 
production capacity from 18,768,996 to 23,568,996 tonnes. (Revised Application, (Exhibits JPN -6/IND -20), 
p. 15). 
342 Japan's  first written submission, paras.  310-315; second written submission, paras.  171-173. 
343 India's  first written submission, paras.  228-230. 
344 India's response to Panel question No. 29. 
345 India's first written submission, para. 230; response s to Panel question Nos. 29 and 31.  
346 Final Findings, (Exhibits JPN -11/IND -11), para.  49, pp.  199-200. 
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  the situation of the domestic industry that a competent authority must evaluate in its serious injury 
analysis.  
7.218.   We recall that the phrase "factors of objective and quantifiable nature" in Article  4.2(a) 
implies that the injury factors must be evaluated based on objective data and evidence.347 We have 
found above that the Indian competent authority fai led to evaluate the rate and amount of increase 
in imports on the basis of objective data, when it based its analysis of the increase in imports at 
least partly on annualized data.348 We reach the same conclusion with regard to use of the annualized 
data in the Indian competent authority 's serious injury analysis. Since data were annualized in order 
to make them comparable with those of previous years, this required a compelling explanation from 
the Indian competent authority as to why such methodology was re liable and why the figures 
corresponding to the first quarter of 2015 -2016 could be extrapolated for the entire financial year. 
The Preliminary and Final Findings do not contain any explanation in this respect.  
7.219.   Therefore, we find that India acted inconsist ently with Article  4.2(a)  of the Agreement on 
Safeguards , when it based its analysis of injury factors at least partly on annualized data.349 
7.8.4   Threat of serious injury  
7.220.   Article  2.1 of the Agreement on Safeguards provides that a Member can apply safeguard 
measu res when the product concerned " is being imported into its territory in such increased 
quantities, absolute or relative to domestic production, and under such conditions as to cause or 
threaten to cause serious injury  to the domestic industry that produces  like or directly competitive 
products ".350 Article  4.1(a) defines the term "serious injury" as "a significant overall impairment in 
the position of a domestic industry". Article  4.1(b) defines the term "threat of serious injury" as 
follows:  
"[T]hreat of ser ious injury" shall be understood to mean serious injury that is clearly 
imminent, in accordance with the provisions of paragraph  2. A determination of the 
existence of a threat of serious injury shall be based on facts and not merely on 
allegation, conject ure or remote possibility[.]  
7.221.   Japan argues that the Indian competent authority does not appear to have made findings 
on a threat of serious injury, however to the extent it did, Japan submits that such determination of 
threat of serious injury is inconsistent with Articles  4.1(b) and 4 .2(a) of the Agreement on 
Safeguards.351 Japan submits that the alleged determination of "further threat of greater serious 
injury" lacks any legal basis under the Agreement on Safeguards and is, in any case, irrelevant.352 
India asserts that its competent aut hority made a finding of both serious injury and threat of serious 
injury.353 
7.222.   The question  of simultaneous determinations of serious injury and threat of serious injury 
was discussed by the Appellate Body in US – Line Pipe . The Appellate Body stated that the  phrase 
"cause or threaten to cause serious injury " in Article  2.1 covers a finding of serious injury, threat of 
                                                
347 See para.  7.137  above. In US – Lamb , the Appell ate Body noted that:  
We recognize that the clause "of an objective and quantifiable nature" refers expressly to "factors", 
but not expressly to data. We are, however, convinced that factors can only be "of an objective 
and quantifiable nature" if they allo w a determination to be made, as required by Article  4.2(b) of 
the Agreement on Safeguards , on the basis of "objective evidence". Such evidence is, in principle, 
objective data. The words "factors of an objective and quantifiable nature" imply, therefore, an 
evaluation of objective data which enables the measurement and quantification of these factors.  
(Appellate Body Report, US – Lamb , para. 130. (emphasis original) ). 
348 See para.  7.145  above.  
349 We also note Japan's  argument that the Indian competent authority failed to base its decision on 
objective data, because the figures for inventories, production, and sales for any gi ven year of the POI do not 
match. India responds that these figures were duly verified from the records of the domestic industry and are 
correct.  Since we have already found that India acted inconsistently with Article  4.2(a), by failing to base its 
injury  analysis on objective data, we do not need to address this argument.  
350 Emphasis added.  
351 Japan's  first written submission, paras.  325-331; second written submission, paras.  181-183. 
352 Japan's  first written submission, para.  324; second written submission , paras.  177-180. 
353 India's  response to Panel question No.  47. 
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  serious injury, or both in combination.354 The Appellate Body clarified that "serious injury" is often 
"the realization of a threat of serious in jury" and it may be difficult to discern the precise point where 
a "threat of serious injury" becomes "serious injury":  
[T]here is a continuous progression of injurious effects eventually rising and culminating 
in what can be dete rmined to be "serious inju ry". Serious injury does  not generally occur 
suddenly. Present serious injury is often preceded in time by an injury that threatens 
clearly and imminently to become serious injur y, as we indicated in US – Lamb . Serious 
injury is, in other words, often the realization of a threat of serious injury. Although, in 
each case, the investigating authority will come to the conclusion that follows from the 
investigation carried out in compliance with Article  3 of the Agreement on Safeguards , 
the precise point where a "threat of serious injury" becomes "serious injury" may 
some times be difficult to discern. But, clearly,  "serious injury" is something beyond  a 
"threat of serious injury".355 
7.223.   In other words, a threat of serious injury means a significant overall impairment  in the 
position of a domestic industry, which has not yet materialized, but it is "clearly imminent ".356 The 
threat of serious injury emerges before and precedes a serious injury. The use of the word 
"imminent" means that "the anticipated 'serious injury ' must be on the very verge of occurring".357 
Article  4.1(b) specifies that a threat of serious injury must be based on "facts and not merely on 
allegation, conjecture or remote possibility". Accordingly, a finding  of threat  of serious injury  
"whether instead of or in addition to a finding of present serious injury, must be explicitly examined 
in an investigation " and "supported by specific evidence and adequate analysis".358 
7.224.   Turning to the facts of this dispute, in the last section of its Final Findings titled 
"Recommendations", the Indian competent authority concluded that the increased imports of the 
product concerned into India "have caused serious injury or are threatening to cause serious injuries" 
to the domestic industry and that it would be in the public interest to impose safeguard duties on 
imports of the product concerned into India for a period of two years and six months.359 
7.225.   Earlier, in the section titled "Determination of Serious Injury and Threat of Serious Injury", 
the Indian competent authority noted that the determination of "serious injury or threat of serious 
injury" must include evaluation  of all relevant factors  having a bearing on the situation of the 
domestic industry.360 After considering all relevant  factors, the Indian competent a uthority fou nd 
that there was a  "significant overall impairment" in the situation of the domestic industry, and that 
the domestic industry "suffered serious injury as a result of the increased imports of the [product 
concerned ]". The Indian competent authority further  considered that, due to the  surplus production 
capacities available to foreign producers, the imports would continue to increase. Considering t he 
likelihood of a further increase in import s, it concluded that there was  "a threat of further serious 
injury to the domestic market ".361 The Final Findings provide as follows:  
[A]n evaluation of the overall position of the DI, in light of  all the relevant factors having 
a bearing on the situation of the DI, shows a 'significant overall impairment'. It is thus 
concluded that Domestic Industry has suffered serious injury as a result of increased 
imports of the [product under consideration] . 
There is a serious injury to the domestic industry due to the surge of imports and the 
most recent trend of import volumes entering India. The volume of imports continues 
to increase, despite already being at high levels. The market share of imports has al so 
substantially increased over the period. Considering the surplus production capacities 
available with the foreign producers, the imports will continue to increase, as is evident 
from the post POI analysis at Para -100 resulting in further injury to the d omestic 
                                                
354 Appellate Body Report, US – Line Pipe , para.  171. 
355 Appellate Body R eport, US – Line Pipe , para.  168. (emphasis original; fn  omitted)  
356 Panel Report, Ukraine – Passenger Cars , para.  7.224.  
357 Appellate Body Report, US – Lamb , para.  125. 
358 Panel Report, Argentina – Footwear  (EC), paras.  8.283 -8.285.  
359 Final Findings, ( Exhibits JPN -11/IND -11), section R(a), p. 208. 
360 Final Findings, ( Exhibits JPN -11/IND -11), paras.  48-49, p.  198. 
361 Final Finding s, (Exhibits JPN -11/IND -11), para.  59, p.  201. 
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  industry. The likelihood of further increased import leads to a conclusion that there is a 
threat of further serious injury to the domestic market . In view of the fact, that the 
domestic industry is unable to make profitable sales in the Indian mar ket, I am of the 
view that in absence of levy of safeguard duty, the Domestic Industry faces serious 
injury and a further threat of greater serious injury .362 
7.226.   Therefore, t he Indian competent authority concluded that the domestic industry  suffered 
"serious in jury" and  there was  "a further threat of greater serious injury".  In other words, it found 
the existence of serious injury to the domestic industry and that there was a risk of a further 
deterioration of the situation of this industry. The Indian competent  authority did not make any 
finding that the serious injury had not yet materialized. On the contrary, the Final Findings clearly 
state that there was a " significant overall impairment" in the situation of the domestic industry and 
that the latter suffered  serious injury.  
7.227.   In response to a question from the Panel on where a finding of threat of serious injury could 
be found in the Final Findings, India referred to its analysis of the relevant injury factors provided 
for in Article  4.2(a).363 It is true that wh en making a determination of serious injury or threat of 
serious injury, a competent authority must evaluate all relevant factors identified in Article  4.2(a). 
However, when making a determination of threat of serious injury, such evaluation must involve " a 
fact-based assessment of likely developments in the very near future with respect to all the relevant 
factors".364 The Indian competent authority 's evaluation of the relevant injury factors does not 
include any evidence or assessment of their likely develo pments in the near future. As discussed 
above, following the evaluation of all relevant injury factors, the Indian competent authority explicitly 
concluded that the domestic industry suffered serious injury.  
7.228.    India also submits that the finding of threat o f serious injury is reflected in the evaluation 
of post POI data.365 The Indian competent authority evaluated changes in some  injury factors in the 
period between the first and the second quarters of 2015 -2016 in order to "draw a clear inference 
about the po ssibility of accentuation of the injury to the domestic industry" .366 This analysis showed 
that in the second quarter of 2015 -2016 the volume of i mports increased by 30% and the market 
share of imports grew by 2  percentage points . In the same period, t he dom estic industry increased 
its sales by only 1%, while its market share and production declined by 2  percentage points and 6% 
respectively.  The domestic industry increased its inventories and suffered financial losses.367 The 
Indian competent authority reitera ted that " the domestic industry has suffered serious injury"  and 
that the analysis of post POI data showed that " the position of domestic industry further 
deteriorated" .368 
7.229.   In our view, the examination of post POI data has been provided by the Indian competent 
authority in support of its conclusion of the current serious injury and further deterioration of the 
situation of the domestic industry, and does not constitute a stand -alone analysis of threat of serious 
injury within the meaning of Article  4.1(b). 
7.230.   In light of the foregoing, we consider that the Indian competent authority 's findings refer to 
the existence of serious injury. On their face, the Final Findings do not show that the Indian 
competent authority conducted an analysis of the "threat of s erious injury" within the meaning of 
Article  4.1(b), i.e. a "serious injury that is clearly imminent". Rather, the Indian competent authority 
found that the domestic industry suffered serious injury and that there was a threat that the serious 
injury would  continue to exist in the future and that the situation of the domestic industry might 
deteriorate to a greater extent due to the  surplus production capacities available to foreign producers  
and the likelihood of a further increase in import s. The Indian c ompetent authority 's reference to a 
"threat of serious injury" in its conclusions and recommendations is not supported by any analysis 
or evidence in the Final Findings. Therefore, we find that the Indian competent authority 's conclusion 
that the increased  imports of the product concerned are threatening to cause serious injury to the 
                                                
362 Final Findings, (Exhibits JPN -11/IND -11), paras.  58-59, p.  201. (emphasis added)  
363 India's  response to Panel  question No.  47. 
364 Panel Report, Ukraine – Passenger Cars , para.  7.234.  
365 India's  response to Panel question No.  47. 
366 Final Findings, ( Exhibits JPN -11/IND -11), para. 100, p.  207. 
367 Final Findings, ( Exhibits JPN -11/IND -11), para. 101, p.  208. We also note that the analysis of the 
post POI data does not include evaluation of all  relevant factors listed in Article  4.2(a).  
368 Final Findings, ( Exhibits JPN -11/IND -11), paras.  102(ii) and (vi), p.  208. WT/DS518/ R 
 
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  domestic industry is inconsistent with Articles  4.1(b) and 4.2(a), because the existence of a threat 
of serious injury was not adequately addressed or analysed in the Final Fi ndings.  
7.8.5   Consequential claim under Article  2.1 of the Agreement on Safeguards  and 
Article  XIX:1(a)  of the GATT 1994  
7.231.   We have found above that India acted inconsistently with Articles  4.1(a) and (b), and  4.2(a)  
of the Agreement on Safeguards. In the preceding  sections of this Report, we have also found that 
India acted inconsistently with Article  2.1 of the Agreement on Safeguards and Article  XIX:1(a) of 
the GATT 1994. In light of this, we see no need to address Japan 's consequential claims that  India 
acted in consistently with Article  2.1 of the Agreement on Safeguards and Article  XIX:1(a) of the 
GATT 1994  with regard to its assessment of the situation of the domestic industry . We therefore 
exercise judicial economy and decline to make findings on these claims.  
7.9  Whether India acte d inconsistently with Articles  2.1, 4.2(a) and 4.2(b)  of the 
Agreement on Safeguards and Article  XIX:1(a) of the GATT  1994 with  respect to its 
determination of  the causal link between the increase in imports and serious injury  
7.9.1   Introduction  
7.232.   Japan claims  that India  acted inconsistently with Article  4.2(b) of the Agreement on 
Safeguards  by failing  to determin e the existence of a causal link between the  increase d imports and 
the serious injury and  to ensure that the injury caused by other factors was not attributed to the 
injury caused by the increased imports. As a consequence, Japan also claims that India acted 
inconsistently with Articles  2.1 and 4.2(a) of the Agreement on Safeguards and Article  XIX:1(a) of 
the GATT 1994.369 Having concluded that the Indian competent authority 's findings on the increased 
imports and th e existence of serious injury are  inconsistent with Articles  2.1, 4.1( a), 4.1(b), 
and 4.2(a) of the Agreement on Safeguards, it woul d normally not be necessary to address 
Japan 's claims whether the Indian competent authority demonstrated the existence of the causal 
link between the increased imports and serious injury.370 Nevertheless, in light of the circumstances 
of the present case an d with a view to assisting the parties to arrive at a positive solution to the 
dispute, we will consider Japan 's claims on the causal link and non -attribution analyses.  
7.9.2   Article  4.2(b) of the Agreement on Safeguards  
7.233.   Article  4.2(b) of the Agreement on Safegu ards reads as follows:  
The determination referred to in subparagraph  (a) [that increased imports have caused 
or are threatening to cause serious injury to a domestic industry] shall not be made 
unless this investigation demonstrates, on the basis of  objective evidence, the existence 
of the causal link between increased imports of the product concerned and serious injury 
or threat thereof. When factors other than increased imports are causing injury to the 
domestic industry at the same time, such inju ry shall not be attributed to increased 
imports.  
7.234.   Article  4.2(b) of the Agreement on Safeguards provides two distinct legal requirements. 
First, a competent authority should demonstrate that there is a causal link between the increased 
imports and the serio us injury to the domestic industry (causation requirement). Second, the serious 
injury caused by factors other than the increased imports must not be attributed to the increased 
imports (non -attribution requirement).371 
7.235.   The Agreement on Safeguards does not p rovide any specific methodology as to how the 
existence of a causal link has to be determined. The Panel will have to consider whether the Indian 
competent authority provided a reasoned and adequate explanation of its finding that there is a 
causal link be tween the increased imports and the serious injury suffered by the domestic industry. 
Previous panels in assessing whether a Member has fulfilled the causation requirement considered, 
                                                
369 Japan's  first written submission, paras.  334-335; second written submission, para.  187. 
370 Appellate Body Report, Argentina – Footwear  (EC), para.  145; Panel Reports, Argentina – Preserved 
Peaches , para.  7.135; Dominican Republic – Safeguard Measures , paras.  7.327 -7.329.  
371 Appellate Body Report, US – Line Pipe , para.  208. 
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  among other factors (i) whether an upward trend in imports coincides wit h downward trends in the 
injury factors, and if not, whether an adequate, reasoned , and reasonable explanation was provided 
as to why nevertheless the data show causation ; and (ii) whether the conditions of competition 
between the imported and domestic pro ducts as analysed demonstrate the existence of a causal link 
between the imports and any serious injury .372 
7.236.   Upward movements in imports should  normally occur at the same time as downward 
movements in injury factors in order for coincidence to exist.373 A coincidence in trends by itself 
cannot prove causation. However , an absence of coincidence would create "serious doubts as to the 
existence of a causal link, and would require a very compelling analysis of why causation still is 
present ".374 Apart from the c oincidence analysis, the competent authority may also use other 
analytical tools to determine the existence of a causal link, for instance, an analysis of the conditions 
of competition between imported and domestic products.375 The relevance of the condition s of 
competition is confirmed by the text of Article  2.1 of the Agreement on Safeguards, which refers to 
the increased imports occurring "under such conditions" as to cause or threaten to cause serious 
injury to the domestic industry.376 
7.237.   The second sentence of Article  4.2(b) requires that a competent authority examine factors 
other than increased imports which are causing injury to the domestic industry simultaneously with 
the increased imports, and ensure that the injury caused by such other factors not be a ttributed to 
the increased imports. The Appellate Body clarified that in order to comply with this requirement a  
competent authority must  "make an appropriate assessment " of the injury caused to the dome stic 
industry by the other  factors  and provide a " satisfactory explanation of the nature and extent of the 
injurious effects of the other factors ".377 Once a competent authority determines that there are other 
factors causing injury to the domestic industry, it " must separate and distinguish " the injurious 
effects of the increased imports from the injurious effects of other factors, and "establish explicitly, 
through  a reasoned and adequate explanation , that injury caused by factors other than increased 
imports is not attributed to increased imports ".378 
7.238.   In order  to demonstrate that increased imports  are causing serious  injury , a competent 
authority must find a "sufficiently clear contribution" by those imports  and explain its determination 
in that regard . The Appellate Body has stated , however,  that the increased  imports do not need to 
be the sole cause of injury, and that the causal link between increased imports and serious injury 
may exist even though other factors are also contributing at the same time to the situation of the 
domestic industry.379 In addition, w hen a competent authority considers that there are no other 
factors causing injury to the domestic industry, this must be clearly indicated and explained in its 
determination.380 
                                                
372 Panel Reports, Argentina – Footwear (EC ), para.  8.229 (confirmed  in Appellate Body Report, 
Argentina  – Footwear (EC) , para. 145); US – Wheat Gluten , para.  8.91; and US – Lamb , para.  7.232.  
373 Panel Reports , US – Steel Safeguards , para.  10.299. That panel also recognized that in some cases a 
lag may exist between the influx of imports and the manifestation of the effects of injury suffered by the 
domestic industry. (Ibid.).  
374 Panel Report , Argentina – Footwear  (EC), para.  8.238 (emphasis original). See also Appellate Body 
Report , Argentina – Footwear  (EC), para.  144. 
375 Panel Reports, US – Steel Safeguards , paras.  10.314 -10.316.  
376 Appellate Body Report, US – Wheat Gluten , paras.  76-78. 
377 Appellate Body Reports, US – Hot-Rolled Steel , para. 226; US – Line Pipe , para. 215. 
378 Appellate Body Reports, US – Line Pipe , paras.  215 and 217; US – Lamb , paras.  179-180; US – 
Wheat Gluten , para.  66; and US – Hot-Rolled Steel , para. 226. 
379 The Appellate Body in US – Wheat Gluten  stated:  
Although that contribution must be sufficiently clear as to establish the existence of "the causal 
link" required, the language in the first sentence of Article  4.2(b) does not suggest that increased 
imports be the sole cause of the serious injury, or that " other factors" causing injury must be 
excluded from the determination of serious injury.  To the contrary, the language of Article  4.2(b), 
as a whole, suggests that "the causal link " between increased imports and serious injury may exist, 
even though other factors are also contributing, "at the same time ", to the situation of the domestic 
industry.  
(Appellate Body Report, US – Wheat Gluten , para. 67 (emphasis original); see also Panel Report, China  – 
Cellulose Pulp , paras.  7.26-7.27). 
380 Panel Report, Ukraine – Passenger Cars , para.  7.334.  
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  7.9.3   Causal link analysis  
7.239.   Japan  contends that India acted inconsistently with the fi rst sentence of Article  4.2(b) by 
failing to determine the existence of a causal link between the increased imports and the serious 
injury and threat th ereof to the domestic industry.  
7.240.   First, Japan submits that in the present case movements in imports and  movements in injury 
factors  did not coincide in time and were not directly correlated .381 Japan argues that in its causal 
link analysis the Indian competent authority compared import trends with  changes in only two injury 
factors, namely market share and dome stic prices, and failed to take into account all injury factors 
in order to  demonstrate the "overall coincidence ".382 Japan submits that most of the injury factors 
remained stable or even improved during the POI (i.e.  production, sales, capacity utilization,  
employment, productivity , and inventories).383 Japan further submits that  while the imports 
increased continuously over the POI,  the profitability also increased  and turned into losses only in 
the first quarter of 2015 -2016. Similarly, the domestic price s remained stable over most of the POI 
and decreased only in the first quarter of 2015 -2016. Japan adds  that the Indian competent authority 
examined the relationship between movements in imports and injury factors by comparing the data 
at the beginning and at  the end of the POI, without considering intermediate import trends and 
corresponding changes in injury factors over the POI.384 
7.241.   Second, Japan argues that if there is no overall coincidence between trends in imports and 
injury factors, a competent authority should provide a compelling explanation as to why the causal 
link exists.385 Japan submits that the Indian competent authority failed to explain why factors 
mentioned in the Final Findings showed that the increased imports of the product concerned caused 
serious injury to the domestic industry. In particular, Japan takes issue with the conclusion that 
imports (i) prevented the domestic industry from sustaining its prices ; (ii) prevented the domestic 
industry from increasing its production and sales to meet th e increased demand ; and (iii)  led to a 
sharp decline in profitability and to the losses suffered by the domestic industry.386 With respect to 
price analysis, Japan argues that the Indian competent authority 's price analysis is distorted, since 
it is based on  a simple comparison between a unit average price of imported products and a unit 
average price of domestic products, without addressing differences in categories and prices between 
various products.387 Japan also argues that the Indian competent authority b ased its analysis on an 
end-to-end comparison of prices and failed to consider intermediate trends.388 With respect to 
domestic production and sales, Japan submits that the Indian competent authority failed to explain 
its assumption that, in the absence of the increased imports, the domestic industry should have 
been able to increase its production and sales in proportion to the increase in demand.389 With 
respect to profitability, Japan argues that an end -to-end point comparison between profitability and 
import volumes and prices cannot show the existence of a causal link. Japan submits that between 
2013-2014 and 2014 -2015 the domestic industry was able to increase profitability  and maintain its 
sales and prices , while the volume of imports increased and the i mport prices decreased.390 
According to Japan, the Indian competent authority failed to take into account other factors that 
might have had an impact on the domestic industry 's prices, profitability, and ability to increase its 
production and sales.391  
                                                
381 Japan's  first written submission, para.  350; second written submission, para.  193. 
382 Japan's  first written submission, para.  355; second  written submission, para.  194. 
383 Japan's  first written submission, paras.  355-356; second written submission, paras.  194-195. 
384 Japan's  first written submission, para.  354; second written submission, para.  196. 
385 Japan's  first written submission, paras.  345 and 357; second written submission, para.  197. 
386 Japan's  first written submission, paras.  357-359; second written su bmission, paras.  197-198. 
387 Japan's  first written submission, paras.  360-362; second written submission, para.  201. 
388 Japan's  first written submission, para.  363; second written submission, para.  202. Japan also argues 
that the Indian competent authority's  price analysis did not allow drawing any meaningful conclusion because it 
was based on indexed data. (Japan's  first written submission, para.  365; second written submission, 
paras.  203-204). We have rejected the same argument of Japan in para.  7.203  above in the context of 
Japan's  claim under Articles  4.1(a) and 4.2(a). The same reasoning with regard to this argument stands in the 
context of Japan's  claim under Arti cle 4.2(b) and we see no reason to address this argument again.   
389 Japan's  first written submission, paras.  368-369; second written submission, paras.  205-206. 
390 Japan 's first written submission, paras.  371-375; second written submission, paras.  208-209. 
391 E.g. decline in the prices of raw materials (coal and iron ore), the increase of sales by the Indian 
producers outside the domestic industry, insufficient domestic production capacity, the domestic 
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  7.242.   India responds that its authority has established the existence of a causal link between the 
increase in imports and serious injury consistently with Article  4.2(b). India submits that an "overall" 
coincidence in movements in imports and injury factors is what m atters in a causal link analysis. I n 
India's view, a slight absence of coincidence in the changes of individual injury factors in relation to 
import trends does not preclude a finding of a causal link between increased imports and serious 
injury.392 India su bmits that its authority recorded a coincidence of the increase in imports and 
changes in injury factors. In particular, when the imports increased, the domestic industry 's market 
share and profitability declined. India underlines that the volume of import s in absolute terms 
increased almost three times while the domestic industry lost its market share (from 45% to 37%) , 
the domestic prices declined , and the domestic industry suffered losses.393 India also argues that a 
competent authority is required to establish a relationship between movements in imports and those 
factors which are indicative of injury. India disagrees with Japan that a causation analysis with regard 
to all injury factors is required.394 
7.243.   India submits that the domestic industry 's price declined from 100 to 83 and the import 
prices also declined from 100 to 78  (indexed) . India argues that import and domestic prices moved 
in tandem throughout the POI, which demonstrates that the domestic indu stry could not have 
increased its prices in the presence of the increased imports.395 Regarding Japan 's argument that 
the Indian competent authority failed to take into account different categories and prices of various 
products, India submits that the Agree ment on Safeguards provides for a comparison of like or 
directly competitive products and Japan does not claim that the products subject to the safeguard 
measure are not "like or directly competitive" in terms of Article  2.1 of the Agreement on 
Safeguards.396 India clarifies that profitability had increased at the beginning of the POI due to a 
slight decrease in the costs (100 to 97 in 2014 -2015), while the prices remained on the same level 
(100 to 99). This resulted in higher per unit profitability, but also  in a loss of market share to the 
increased imports.397 
7.244.   In the present case, the Indian competent authority noted that the following factors indicated 
that the increased imports caused serious injury to the domestic industry:  
a. the volume of imports increased significa ntly from 100 points (1,252,441 tonnes ) to 
281 points (3,524,932 tonnes ); 
b. the market share of imports increased from 5% to 13%, while the market share of the 
domestic industry declined from 45% to 37%;  
c. the decreasing import prices prevented the do mestic industry from sustaining its prices;  
d. due to the low prices of the increased imports, the domestic industry was unable to 
increase its production and sales as compared to the rate of increase in demand of the 
product concerned in India; and  
e. the profi tability of the domestic industry declined sharply during 2015 -2016 (Q1) and the 
domestic industry recorded losses due to the increased imports.398 
7.245.   In the Final Findings, the Indian competent authority found that:  
[T]here is a direct correlation between the increase in imports and serious injury 
suffered  by the domestic industry as import in absolute term increased approximately 
three times during the year 2015 -16 ([a]nnualised on the basis of Q1)  as compared to 
base year 2013 -14 and domestic industry is losi ng market share  which has declined 
from 45% to 37%. The landed price of imports per ton has declined sharply. 
                                                
industry 's decision to increase captive transactions, an d the increase in the demand for products that were not 
produced by the domestic industry . (Japan's  first written submission, paras.  366, 369, and 375) . 
392 India's  first written submission, paras.  254-256 (quoting Panel Report, US – Wheat Gluten , 
para. 8.101). 
393 India's  first written submission, paras.  252 and 259 (referring to Final Findings, (Exhibit  IND-11), 
para. 49(g)(ii)(b), p.  198).  
394 India's  first written submission, para.  261. 
395 India's  first written submission, para.  262. 
396 India's  first written submission, para.  263. 
397 India's  first written submission, paras.  272-273. 
398 Final Findings, (Exhibits JPN -11/IND -11), para.  65, p.  202. 
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  Consequently, the  domestic industry has suffered losses. It is, thus, evident that injury 
to the domestic industry has been caused by the  increase d imports.399 
7.246.   The Indian competent authority concluded that there was "a direct correlation" between the 
import surge and the serious injury, given that the imports increased and the domestic 
industry 's market share and prices declined, which led to the loss es suffered by the domestic 
industry.  
7.247.    First, as discussed above, the Final Findings show that the volume of imports considerably 
increased and the domestic industry 's market share declined over the POI. Japan does not dispute 
the fact that there was a coi ncidence between the increase in imports and the decrease in the 
domestic industry 's market share.400 However, while the volume of imports was increasing during 
the entire POI, the domestic industry 's prices remained stable during most of the POI and decreas ed 
only in the first quarter of 2015 -2016. The domestic industry 's profits  grew significantly from 100 
to 136 (indexed) in 2014 -2015 compared to 2013 -2014, while th e imports increased from 100 
to 211 (indexed) at the same time. The domestic industry experi enced losses only in the first quarter 
of 2015 -2016, while imports continued to increase, but at a lower rate.  We recall that other injury 
factors did not show any significant change over that POI and remained stable, while the import s 
were increasing duri ng the entire POI. Furthermore, there was no correlation between the decrease 
of the domestic industry 's market share and the domestic industry 's prices, although both were 
declining, but at considerably different levels, and with profits, because when the  market shares and 
prices were declining, the domestic industry 's profits grew significantly from  100 to 136.  These 
findings of the Indian competent authority show that there was no overall coincidence in trends 
between movements in imports and movements i n injury factors.  
7.248.   An overall coincidence in trends does not require an exact correlation since in some cases a 
lag may exist between the influx of imports and the manifestation of the effects of injury suf fered 
by the domestic industry.401 However, in such cases the competent authority should provide 
sufficient explanations to justify how an overall coincidence in movements has been found.  We 
therefore conclude that the Indian competent authority failed to provide a sufficient explanation o f 
why a causal link exists despite the lack of overall coincidence in trends between movements in 
imports and movements in injury factors.  
7.249.   Second, w e recall that according to Article  4.2(b) of the Agreement on Safeguards, the 
determination regarding the existence of the causal link between the increased imports and serious 
injury shall be made "on the basis of objective evidence". The trends in imports and injury factors 
were examined during the POI, which includes two financial years, 2013 -2014 and 2014 -2015, and 
the first quarter of 2015 -2016. For the purpose of examining the volume of imports and most of the 
injury factors, the Indian competent authority annualized the data for the first quarter of 2015 -2016 
to compare t hem to the full previous financia l years.  
7.250.   As we have found in the preceding sections of this Report, the Indian competent authority 
failed to explain why such methodology was reliable and why the figures correspondi ng to the 
first quarter of 2015 -2016 could be extrapolated for the entire financial year.  For the same reasons, 
we conclude that the examination of a correlation between movements in imports and movements 
in injury factors was not based on objective evidence, since such examination was based at least 
partly on annualized data . In our view, the POI of two years and three months did not allow the 
Indian competent authority to examine a coincidence in trends, because in effect it provides only 
two points of comparison between movements in imports and movements in injury trends in 
2013-2014 and in 2014 -2015. With respect to the third point of comparison, 2015 -2016, the Indian 
competent authority did not have objective evidence for the full financial year.  
7.251.   In addition, certain injury factors, including prices and profitability, were ex amined by 
comparing the data for the full two financial years to the first quarter of 2015 -2016. As we have 
found above, the Indian competent authority failed to explain why valid conclusions may be drawn 
by comparing the average prices of full financial y ears to the average prices of a quarter . 
                                                
399 Final Findings, (Exhibits JPN -11/IND -11), para.  66, p.  202. 
400 Japan's  second written submissio n, para.  195. 
401 Panel Report s, US – Steel Safeguards , para. 10.299.  WT/DS518/ R 
 
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  7.252.   Accordingly, we consider that the Indian competent authority failed to base its analysis of 
trends in imports and trends in injury factors on objective evidence, when it relied at least partly on 
annualized data and  compared data for full financial years to data for a quarter.  
7.253.   Third, i n its causation analysis, the Indian competent authority considered the price 
competition between imported and domestic products. In particular, the Indian competent authority 
stated th at "[t]he decreasing import prices are preventing  the Domestic Industry from sustaining its 
prices " and  "[d]ue to increased imports on  low prices, the Domestic Industry is unable to increase 
its production and sales as compared to the rate of increase in d emand /consumption of produ ct 
under consideration in India ".402 
7.254.   The Indian competent authority compared price trends based on the average unit price of 
imported products and the average unit price of the like or directly competitive domestic products. 
During the investigation, several interested parties argued that the imported product included a 
heterogeneous group of products. Specifically, some of the importers of the subject goods in India 
(Maruti Suzuki India Limited) argued that the product concerned inc luded a "heterogeneous set of 
products imported and thus they cannot be included in the same grade for comparison with the 
products manufactured by the domestic producers/petitioners".403 Several producers and exporters 
added that "[i ]n the present investigation, the products classified under subheading 7225 are 
materially different from the articles  classified under subheading 7208. Therefore, the products 
under the two headings which are not identical and which are plural or heteroge neous in nature 
cannot be put together in one basket to determine a single [product under conside ration] ".404 In 
response to a question from the Panel on whether and how the Indian competent authority  addressed 
these arguments , India refer red to the section of the Final Findings titled "Product under 
consideration".405 In this section the Indian competent authority considered the interested 
parties ' arguments on whether certain products should be excluded from the scope of the 
investigation. However, this secti on does not discuss whether all products included into the scope of 
the investigation are alike and compete with each other.406 
7.255.   India argues that once products are included into the scope of a safeguard investigation , no 
further categorization is required , because the Agreement on Safeguards does not provide for the 
collection of detailed price information as it does not envisage any detailed price analysis.407 Although 
it is correct that the Agreement on Safeguards does not require a separate analysis of the p rices of 
imports and domestic products, it also does not exclude such an analysis. In the present case , the 
Indian competent authority based its causation analysis fundamentally on price considerations. In 
the context of a safeguard investigation, if a  competent authorit y supports its injury determination 
by relying on price trends of imported and domestic products, it should ensure that the products on 
both sides are sufficiently similar and that any price difference can reflect the conditions of 
competiti on between imported and domestic products, rather than differences in the composition of 
the two baskets of products being compared .408 This approach is consistent with the statement of 
                                                
402 Final Findings, (Exhibits JPN -11/IND -11), para.  65, p.  202. 
403 See the arguments by Maruti Suzuki India Limited in Final Findings, (Exhibits JPN -11/IND -11), 
section  B, XXXV(i), p.  146. 
404 See the arguments by China Iron and Steel Association and several other producers and exporters in 
Final Findings, (Exhibits JPN -11/IND -11), section C, X(b), p.  154. See also the arguments by POSCO in Final 
Findings, (Exhibits JPN -11/IND -11), section D, XI V(j), p.  187. 
405 India's  response to Panel question No.  57. 
406 Final Findings, (Exhibits JPN -11/IND -11), paras.  18-23, pp.  192-194. 
407 India's  responses to Panel question Nos. 58 and 114.  
408 In the context of the anti -dumping investigation, the panel in China – Broiler Products  stated:  
Where the products under investigation are not homogenous, and where various models command 
significantly different prices, the investigating authority must ensure that the product compared 
on both sides of the comparison are suf ficiently similar such that the resulting price difference is 
informative of the "price undercutting", if any, by the imported products. … In a situation in which 
it performs a price comparison on the basis of a "basket" of products or sales transactions, the 
authority must ensure that the groups of products or transactions compared on both sides of the 
equation are sufficiently similar so that any price differential can reasonably be said to result from 
"price undercutting" and not merely from differences in the composition of the two baskets being 
compared.  
(Panel Report, China – Broiler Products , para. 7.483) . 
In addition, in China – X-Ray Equipment , the panel noted:  
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  the panel i n Argentina – Footwear (EC)  regarding  the determination of like or directly competitive 
products in the context of  causation analysis:  
We note in this regard that there would seem to be a relationship between the depth of 
detail and degree of specificity required in a causation analysis and t he breadth and 
heterogeneity of the like or directly competitive product definition. Where as here a very 
broad product definition is used, within which there is considerable heterogeneity, the 
analysis of the conditions of competition must go considerably  beyond mere statistical 
comparisons for imports and the industry as a whole, as given their breadth, the 
statistics for the industry and the imports as a whole will only show averages, and 
therefore will not be able to provide sufficiently specific inform ation on the locus of 
competition in the market.409 
7.256.   For the above reasons, we conclude that the Indian competent authority failed to properly 
examine the price competition between imported and domestic products, when it based its price 
comparison on the aver age unit price of imported products and the average unit price of the like or 
directly competitive domestic products.410 
7.257.   In light of the foregoing, we conclude that India acted inconsistently with the first sentence 
of Article  4.2(b) of the Agreement on Safe guards, by failing to demonstrate the existence of a causal 
link between the increased imports and serious injury suffered by the domestic industry.  
7.9.4   Non-attribution analysis  
7.9.4.1   Introduction and general considerations relevant to Japan 's claims on 
non-attribut ion analysis  
7.258.   Japan claims that India acted inconsistently with the second sentence of Article  4.2(b) of the 
Agreement on Safeguards, because it failed to examine "other factors" allegedly causing injury to 
the domestic industry at the same time with the in creased imports and to ensure that the injury 
caused by those other factors was not attributed to the increased imports.411 
7.259.   Japan argues that the Indian competent authority failed to properly examine or to examine 
at all the following "other factors"412: 
a. captive sales of the domestic industry and changes in the market share of other Indian 
producers not included in the definition of the domestic industry;  
b. the domestic industry 's "own internal factors" (including high interest costs, depreciation, 
and fixed cost  burden; high freight costs and poor infrastructure; raw material crisis;  low 
capacity utilization;  inability to meet the quality requirements of specific downstream 
industry); and  
c. other factors causing the decline in profitability  (including stagnant sales, higher salaries 
and wages, higher usage of imported coal and higher depreciation of capitalization of new 
facilities, and reduction in interest earning on term deposits).  
                                                
However, a number of panels have clarified that where a broad basket of goods under cons ideration 
and a broad basket of domestic goods have been found by an investigating authority to be "like", 
this does not mean that each of the goods included in the basket of domestic goods is "like" each 
of the goods included within the scope of the produ ct under consideration.  
(Panel Report, China – X-Ray Equipment , para. 7.65 (referring to Panel Report, EC – Salmon (Norway) , 
paras.  7.13-7.76). 
409 Panel Report, Argentina – Footwear (EC) , fn 557. 
410 We note the argument of Japan that the Indian competent authority failed to take into account other 
factors that might have had an impact on the domestic industry 's prices, profitability, and ability to increase its 
production and sales. The enquiry regard ing other factors causing serious injury to the domestic industry 
simultaneously with the increased imports is subject to the second sentence of Article  4.2(b). Such other 
factors, challenged by Japan under the second sentence of Article  4.2(b) , are addres sed in section 7.9.4 below . 
411 Japan's  first written submission, paras.  378 and 388; second written submission, paras.  210-211. 
412 Japan's  first written submission, p aras. 391-394; second written submission, paras.  222-229. 
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  7.260.   India's main response to Japan 's claim on the alleged lac k of a non -attribution analysis is 
that the Indian competent authority did not consider that the "other factors" alleged by the 
interested parties during the investigation were "relevant". India submits that Articles  4.2(a) 
and 4.2(b) should be interpreted  in a mutually consistent way.413 India asserts that Article  4.2(a) 
requires a competent a uthority to  evaluate all relevant factors " of an ob jective and quantifiable 
nature" which are " having a bearing on the situation"  of the domestic industry . According to  India, 
a competent authority has discretion to determine whether "other factors", apart from those 
specifically listed in Article  4.2(a), are "relevant" based on criteria " of an ob jective and quantifiable 
nature" and " have a bearing on the situation" of t he domestic industry. India argues that the 
obligatio n to conduct a  non-attribution analysis pursuant to  the second sentence  of Article  4.2(b) 
only arises when a competent authority has determined that a specific factor is " relevant" .414 
7.261.   We reject India 's argument that the phrase "factors other than increased imports" in 
Article  4.2(b) has to be understood to refer to only those factors that have been found by 
a competent authority to be "relevant" under Article  4.2(a). The second sentence of Article  4.2(b)  
and Article  4.2(a) are interrelated to the extent that the  analyses  required under these provisions 
contribute to the ultimate determination whether the increased imports are causing or threatening 
to cause serious injury to the domestic industry.415 Some "relevant factors " evaluated under 
Article  4.2(a) might be related to the "factors  other than increased imports " allegedly causing injury 
to the domestic industry.416 However, Article  4.2(a) and the second sentence of Article  4.2(b)  set 
out different requirem ents that a competent authority must satisfy towards its  determination that 
the increased imports are causing or threatening to cause serious injury to the domestic industry . 
Under Article  4.2(a)  a competent authority must evaluate  all "relevant factors " of objective and 
quantifiable nature having a bearing on the situation of the domestic industry . The second sentence 
of Article  4.2(b) requires a competent authority to examine "factors other than increased import s" 
that may be simultaneously causing seri ous injury to the domestic industry and to ensure that the 
injuries caused by such other factors are not attributed to increased imports. We recall that  the 
increased imports do not need to be the sole source of injury caused to the domestic industry . A 
competent authority must appropriately assess any other sources of injury and "separate and 
distinguish" the injurious effects of those "other factors" from the injurious effects of the increased 
imports.417 
7.262.   Therefore, in addressing Japan 's claim under Article  4.2(b), we will consider whether the 
Indian competent authority properly examined factors other than increased imports allegedly 
causing injury to the domestic industry  and whether the injury caused by those "other factors", if 
any, w as distinguished and separated from the injurious effects of the increased imports .418 
7.263.   Before turning to Japan 's specific arguments , we note that the section s on causal link in the 
Preliminary and Final Findings do not contain any non -attribution analysis. However, the different  
sections of the Final Findings include a discussion of the interested parties ' arguments regarding 
other factors causing injury to the domestic industry. Indeed, the section of the Final Findings 
regarding the causal link between the increased imports and  the serious injury does not include an 
examination of "other factors" causing injury to the domestic industry. We recall that it is not decisive 
how a competent authority structure s its report, as long as the competent authority 's analysis , 
considered  in its totality establish es the existence of both a serious injury and a causal link between 
the increased imports and such injury consistent ly with the Agreement on Safeguards.419 Therefore, 
we will consider the Indian competent authority 's entire determinatio n in reviewing Japan 's claims 
regarding the non -attribution analysis.  
                                                
413 India's  first written submission, para.  276 (referring to Panel Reports, US – Steel Safeguards , 
para. 10.318).  
414 India's  first written submission, para.  279; second written submission, paras.  16-19. 
415 Panel Report, China – Cellulose Pulp , para.  7.10 (in the context of Article  3 of the Anti -Dumping 
Agreement).  
416 E.g. capacity utilization is a factor to be evaluated under Article  4.2(a), while overcapacity may  be an 
"other factor" causing injury to t he domestic industry.  
417 Appellate Body Reports, US – Line Pipe , paras.  215 and 217; US – Lamb , paras.  179-180; US – 
Wheat Gluten , para.  66; and US – Hot-Rolled Steel , para. 226. 
418 Appellate Body Reports, US – Line Pipe , paras.  215 and 217; US – Lamb , paras.  179-180; US – 
Wheat Gluten , para.  66; and US – Hot-Rolled Steel , para. 226. 
419 Panel Reports, US – Lamb , para.  7.184;  China – Cellulose Pulp , para.  7.155.  WT/DS518/ R 
 
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  7.9.4.2   The captive sales of domestic industry and sales of producers outside the 
domestic industry  
7.264.   Japan refers to the argument made by the European Union during the investigation that 
captive sales and sales by other domestic producers should have been examined. Japan also argues 
that, although the Indian competent authority noted that the domestic industry 's market share 
decreased by 2 percentage points  while other Indian producers ' market sha re increased by 
2 percentage points , it failed to determine that this factor was not a cause of injury suffered by the 
domestic industry and failed to provide a reasoned and adequate explanation on this issue. According 
to Japan, the data show that the domestic industry 's market share was partially taken by other 
Indian producers and that competition with other domestic producers is likely to be one of the causes 
of injury. Japan underlines the importance of providing sufficient explanation on this issue , given 
that the Indian competent authority relied on the decline in the domestic industry 's market share in 
its finding of serious injury. Japan also argues that the Indian competent authority failed to consider 
whether the increase in captive sales by th e domestic industry was one of the causes of the alleged 
injury.420 
7.265.   India responds that increased imports do not need to be the sole cause of serious injury. 
India refers to Japan 's statement that the domestic industry 's market share was only partially taken  
by other Indian producers. Regarding the analysis of captive sales, India reiterates that the Indian 
competent authority was required only to examine the "share of domestic market taken by the 
increased imports".421 
7.266.   During the underlying investigation, the European Union noted that Indian producers  that 
were not included into the domestic industry increased their "open market sales" by 42%. In this 
regard, the Indian competent authority observed that the market share of other Indian producers 
increased by 2  percentage points , while the market share of the domestic industry decreased by 
2 percentage points during the period 2014 -2015 and the first quarter of 2015 -2016. It further 
stated that the increased imports had taken all the increase in demand of the pro duct concerned. 
Specifically, in 2014 -2015 demand (excluding captive) increased by 1,303,069 tonnes  and imports 
increased by 1,392,470  tonnes .422 The Indian competent authority did not examine further these 
two alleged "other factors".  
7.267.   The fact that other do mestic producers gained market share, while the domestic industry 
was losing it, suggests that the performance of other producers might have contributed to the injury 
caused to the domestic industry. The Indian competent authority failed to explain  whether  
performance of producers outside the domestic industry was a factor causing injury to the domestic 
industry and how it made sure that injury, if any, caused by this factor was not attributed to the 
increased imports . Regarding captive sales, the Indian co mpetent authority simply restated its 
finding that imports increased along with the increase in demand, but failed to explain  whether 
captive sales were a factor causing injury to the domestic industry.  
7.268.   If the Indian competent authority considered that the  factors the interested parties raised 
were not causing injury to the domestic industry at the same time with the increased imports, it was 
nevertheless required to examine the alleged " other factors" and provide a reasoned  and adequate 
explanation as to w hy these factors were not a source of injury to the domestic industry.  As noted 
by the panel in Ukraine – Passenger Cars : 
When the competent authorities determine that there are no other factors causing injury 
at the same time as increased imports, or that  factors argued to be causing injury are 
not, in fact, doing so, this, too, must be stated explicitly in the published report, 
accompanied by a clear, explicit, and adequate explanation. Otherwise, it would be 
impossible to determine whether the imposing M ember has properly considered whether 
factors other than imports are causing injury to the domestic industry, and if so, whether 
that Member has ensured that such injury is not attributed to the increased imports.423 
                                                
420 Japan's  first written submission, paras.  392-393; second written submission, paras.  226-228. 
421 India's  first written submission, paras.  288-290. 
422 Final Findings, (Exhibits JPN -11/IND -11), para.  97, p.  207. 
423 Panel Report, Ukraine – Passenger Cars , para. 7.334 . (fn omitted)  WT/DS518/ R 
 
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  7.269.   Therefore, we conclude that the Indian co mpetent authority failed to provide a reasoned and 
adequate explanation as to why the captive sales of the domestic industry and the sales of domestic 
producers outside the domestic industry were not a source of injury to the domestic industry.  
7.9.4.3   The domesti c industry 's own internal factors  
7.270.   Japan submits that the Indian competent authority failed to properly examine the following 
"other factors" the interested parties raised during the investigation (i ) high interest costs, 
depreciation, and fixed cost burden ; (ii) high freight costs and poor infrastructure ; (iii) raw material 
crisis; (iv) low capacity utilization ; and (v) inability to meet the quality requirements of specific 
downstream industry.424 Japan argues that the Final Findings do not include a clear de termination 
that the identified factors are not causing injury to the domestic industry nor any explanation in this 
regard.425 India responds that its authority considered that the factors raised by the interested 
parties were "very general" or were not supp orted by the facts . India submits  that the domestic 
industry has existed for many years and performed well in the past.426 
7.271.   In paragraph 51 of the Final Findings, i n the section regarding the determination of serious 
injury, the Indian competent authority not ed the interested parties ' arguments  that the serious 
injury suffered by the domestic industry was due to the domestic industry 's "own internal factors", 
including ( i) high interest costs, depreciation, and fixed cost burden ; (ii) high freight costs and poor 
infrastructure ; (iii) raw material crisis ; (iv) low capacity utilization ; and (v) inability to meet the 
quality requirements of specific downstream industr ies.427 The Indian competent authority  addressed 
these arguments in paragraph 52 of the Final Find ings, as follows:  
These claims are very general and without any facts and figures to support. The fact 
that injury has been caused due to increased quantities of imports of the [product under 
consideration] in India has already been established above. I fi nd that the domestic 
industry has been in existence since many years and has been doing well in the past. 
Infrastructure and capacities are in place with the domestic industry to meet the 
demand of the [product under consideration] . The efficiency of a uni t depends on 
several factors and if their efficiencies were of a higher order, probably there was no 
need for the DI to ask for safeguard action. Mere existence of inefficiencies in certain 
areas cannot be a reason to deny safeguard protection to the Domes tic Industry. The 
very reason why safeguard protection is sought and given and is provided for under 
[the Agreement on Safeguards]  is that the DI is unable to handle competition and can 
get some time to adjust to the International competition over a period  of time. The main 
determining factor is that there should be a serious injury or threat of serious injury 
and there is a causal link with the increased imports. I observe that there is a significant 
increase in imports of the subject goods which have caus ed serious injury to the 
domestic industry which has been duly substantiated in the foregoing paras.428 
7.272.   The Indian competent authority noted that it had already found that the increased imports 
caused serious injury to the domestic industry and that the "[m]ere existence of inefficiencies in 
certain areas" was not a reason for not applying the safeguard measure. This statement  of the Indian 
competent authority  is not dispositive of the question of whether other factors  were simultaneously 
contributing to the injury caused by the increased imports. As noted above, the increased imports 
do not need to be the sole source of injury caused to the domestic industry and a competent authority 
must assess other sources of injury and not attribute that injury to the inc reased imports . Having 
said that, paragraphs 51 and 52 of the Final Findings show that the Indian competent authority 
considered arguments made by the interested parties and rejected them, because in its view they 
were "very general and without any facts a nd figures to support" .429 The Indian competent authority 
also stated that "the domestic industry has been in existence since many years and has been doing 
well in the past. Infrastructure and capacities are in place with the domestic industr y to meet the 
                                                
424 Japan's  first written submission, para.  391 (referring to Final Findings , (Exhibit JPN -11), para.  51, 
p. 200).  
425 Japan's  first written submission, para.  391; second written submission, paras.  222-225. 
426 India's  first written submission, para.  278. 
427 Final Findings, (Exhibits JPN -11/IND -11), para.  51, p.  200. 
428 Final Findings, (Exhibits JPN -11/IND -11), para.  52, p.  200. 
429 Final Findings, (Exhibits JPN -11/IND -11), paras.  iv(mm) and 52, pp.  176 and 200.  
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  demand of the [product under consideration] ".430 In response to a question from the Panel on the 
specific arguments the interested parties raised during the underlying investigation, Japan refer red 
to the general summaries of interested parties ' submissions provided in the Final Findings.431 Japan 
failed to identify any specific evidence or facts on the record of the investigation that in its view the 
Indian competent authority failed to address. Although the Final Findings would have benefited from 
more elabor ate and detailed explanation, Japan did not establish what facts or evidence the Indian 
competent authority failed to consider and what explanation is lacking regarding these factors.  
7.273.   Therefore, we conclude that Japan has not established that the Indian co mpetent authority 
failed to provide a reasoned and adeq uate explanation regarding the following alleged "other factors" 
causing injury to the domestic industry:  high interest costs, depreciation, and fixed cost burden; 
high freight costs and poor infrastru cture; raw material crisis; low capacity utilization; and inability 
to meet the quality requirements of specific downstream industry . 
7.9.4.4   Other factors causing the decline in profitability  
7.274.   Japan additionally submits that the Indian competent authority failed t o consider the 
interested parties ' arguments that the decline in profitability of the domestic industry was caused by 
factors other than the increased imports. Japan argues that consideration of these arguments is 
important given the different trends in th e increase in imports and changes in profitability discussed 
above. Japan adds that the Final Findings state that the increased imports were the "major reason" 
for the decline in profitability, which suggests that there were other reasons for the losses su ffered 
by the domestic  industry.432 India responds that increased imports do not need to be the sole cause 
of deterioration of the state of domestic industry.433 India refers to paragraph 52 of the Final Findings 
to note that any minor or insignificant factors  affecting profitability were not "having a bearing" on 
the situation of the domestic industry.434 
7.275.   In the section titled "Submissions by Embassies and Delegations from countries", the Indian 
competent authority noted Turkey 's submission that the profitabilit y of the domestic industry 
declined due to factors other than the increased imports, such as "stagnant sales, higher salaries 
and wages[,] higher usage of imported coal and higher depreciation of capitalisation of new facilities, 
and reduction in interest earning on term deposits".435 The Indian competent authority d id not 
provide any further examination of  Turkey 's argument . In response to a question from the Panel, 
India noted that these arguments were addressed in paragraphs 51 and 52  of the Final Findings  
together with other arguments of the interested parties regarding the domestic industry 's own 
internal factors.436 The factors indicated in paragraph 51 do not include specific "other factors" 
affecting profitability raised by Turkey (see paragraph  7.271  above). Neither does paragraph  52 of 
the Final Findings include any discussion of the specific arguments relating to the domestic 
industry 's internal factors Turkey raised regarding other factors affecting the domestic 
industry 's profitability.  
7.276.   Furthermore, the Indian competent authority found that "[t]he major  reason for decline in 
profitability of domestic industry is the increased imports at reduced prices" .437 India admitted that 
there might have been other factors affecting profitability than the increased imports at reduced 
prices, but they were minor or insignificant and did not have a bearing on the situation of the 
domestic industry.438 As noted above,  the increas ed imports do not need to be the sole source of 
injury to the domestic industry.439 Nonetheless, t he Indian competent authority should have 
addressed any other alleged factors affecting profitability and to provide a reasoned and adequate 
                                                
430 Final Findings, (Exhibits JPN -11/IND -11), para.  52, p.  200. See also ibid. para.  iv(mm), p.  176. 
431 Japan's  responses to Panel question Nos. 122  and 123 (referring to Final Findings, (Exhibit JPN -11), 
para. IX(m), p. 133; paras.  XII(l), XII(m), XIII(h), and XIII(j), p. 136; paras.  VIII(f) and IX(f), 
pp. 153-154; and para.  XIII(g), p.  186).  
432 Japan's  first written submission, para.  394; second written submission, para.  229. 
433 India's  first written submission, para.  290. 
434 India's  first written submission, para.  290 (referring to Final Findings, (Exhibit IND -11), para.  52). 
435 Final Findings, (E xhibits JPN -11/IND -11), section C, VIII(f), pp.  153-154. 
436 India's  response to Panel question No.  61. 
437 Final Findings, (Exhibits JPN -11/IND -11), para.  56, p.  201. (emphasis added)  
438 India's  first written submission, para.  290 (referring to Final Findings,  (Exhibit IND -11), para.  52). 
439 See para.  7.238  above.  
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  explanation of whet her these factors were causing injury to the domestic industry and how it made 
sure that injury, if any, caused by these factors was not attributed to the increased imports . 
7.277.   We conclude that the Indian competent authority failed to provide a reasoned and a dequate 
explanation regarding other factors causing a decline in the profitability of the domestic industry.  
7.9.4.5   Conclusion  
7.278.   In light of the foregoing, we conclude that India acted  inconsistently with the 
second  sentence of Article  4.2(b) of the Agreement on Safeguards, by failing to conduct a proper 
non-attribution analysis.440 
7.9.5   Consequential claims  
7.279.   Japan submits that the fact that India acted inconsistently with Article  4.2(b) also leads to a 
violation of Articles  2.1 and 4.2(a) of the Agreement on Safeguards a nd Article  XIX:1(a) of the 
GATT  1994.441 We have found above that India acted inconsistently with its obligations under 
Article  4.2(b) with regard to its causation and non -attribution analyses. In the preceding sections of 
this Report, we have also found tha t India acted inconsistently with Articles  2.1 and 4.2(a) of the 
Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994.  In light of this, we see no need to 
address Japan 's consequential claims whether India acted inconsistently with Articles  2.1 an d 4.2(a) 
of the Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994  with respect to its causation 
and non -attribution analyses . We therefore exercise judicial economy and decline to make findings 
on these claims.  
7.10  Whether India acted inconsistentl y with Articles  5.1 and 7.1 of the Agreement on 
Safeguards and Article  XIX:1(a) of the GATT 1994  
7.280.   Japan claims that India acted inconsistently with Articles  5.1 and 7.1 of the Agreement on 
Safeguards and Article  XIX:1(a) of the GATT 1994 by failing to impos e the safeguard measure only 
to the extent and for such time necessary to prevent or remedy serious injury. Japan argues that 
the second sentence of Article  4.2(b) serves as a context for interpreting Article  5.1 and that the 
phrase "to the extent necessar y to prevent or remedy serious injury" means that safeguard 
measures shall be applied only to the extent that they address serious injury "attributed" to 
increased imports.442 Japan refers to its claim under Article  4.2(b) of the Agreement on Safeguards 
and argues that since the Indian  competent authority failed to demonstrate the causal link between 
the increased imports and the serious injury, it was consequently unable to ensure that the safeguard 
measure was applied only to the extent necessary to prevent  or remedy serious injury caused by 
the increased imports.443 
7.281.   Japan further submits that the second sentence of Article  4.2(b) of the Agreement on 
Safeguards also serves as a context for interpreting Article  7.1. Japan argues that the requirement 
in Article  7.1 that safeguard measures shall be applied "only for such period of time as may be 
necessary to prevent or remedy serious injury" refers to the injury "attributed" to increased imports. 
Japan considers that this requirement also applies to Article  XIX:1( a) of the GATT 1994. In 
Japan 's view, considering that the Indian competent authority 's causation and non -attribution 
analysis was inconsistent with Article  4.2(b), the Indian  competent authority was consequently 
unable to ensure that the safeguard measure  was applied "only for such period of time as may be 
necessary to prevent or remedy serious injury" . Therefore, Japan submits that  India acted 
                                                
440 We also note Japan's  argument that, for the purpose of non -attribution analysis, India failed to 
distingui sh the impact of imports caused by unforeseen developments and the effect of the obligations incurred 
under the GATT 1994 from the impact of imports caused by other reasons. (Japan's  first written submission, 
para. 395). We have found above that India acte d inconsistently with Article  XIX:1(a) of the GATT 1994 with 
respect to its consideration of unforeseen developments and the effect of GATT obligations. We have also found 
that India's  non-attribution analysis is inconsistent with Article  4.2(b). In light of these findings, we see no 
need to address this argument of Japan.  
441 Japan's  first written submission, paras.  396-399; second written submission, para.  232. 
442 Japan's  first written submission, para.  404 (referring to Appellate Body Report, US – Line Pipe , 
paras.  252 and 260).  
443 Japan's  first written submission, paras.  410-411; second written submission, para.  240. 
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  inconsistently with  Article  7.1 of the Agreement on Safeguards and Article  XIX:1(a) of the 
GATT  1994.444 
7.282.   India resp onds that the obligation to justify that safeguard measures are applied "to the 
extent necessary" arises only in case of safeguard measures in the form of quantitative restrictions, 
as provided in the second sentence of Article  5.1.445 India submits that Jap an failed to show that 
there is any obligation in Article  5.1 for competent  authorities to provide explanations with respect 
to duties imposed as safeguards .446 India argues that a non -attribution analysis conducted under 
Article  4.2(b) itself ensures that t he safeguard duties applied address only the serious injury 
attributed to the increased imports. India contends  that the Appellate Body 's interpretation of 
Articles  4.2(b) and 5.1 in US – Line Pipe  means that once a non -attribution analysis has been 
conducted in accordance with Article  4.2(b), the measure ipso facto  complies with Article  5.1.447 
India argues that neither the Agreement on Safeguards nor Article  XIX:1(a) of the GATT  1994 
provide for the period of time that co uld be sufficient to remedy serious injury or to facilitate 
adjustment. India submits that it has fully complied with Article  4.2(b) and that Japan failed to 
substantiate its claim that India acted inconsistently with Article  7.1.448 
7.283.   The first sentence of Article  5.1 of the Agreement on Safeguards reads:  
A Member shall apply safeguard measures only to the extent necessary to prevent or 
remedy serious injury and to facilitate adjustment.  
7.284.   Article  7.1 of the Agreement on Safeguards provides:  
A Member shall app ly safeguard measures only for such period of time as may be 
necessary to prevent or remedy serious injury and to facilitate adjustment. The period 
shall not exceed four years, unless it is extended under paragraph  2. 
7.285.   Japan 's claims under Articles  5.1 and 7.1 of the Agreement on Safeguards relate to the 
duration of the safeguard measure at issue and the level of the duties imposed. Since we have found 
above that the safeguard measure was inconsistent with Articles  2.1, 4.1(a), 4.1(b), 4.2(a) , 
and 4.2(b) of the Agreement on Safeguards, as well as Article  XIX:1(a) of the GATT 1994, we do 
not consider it necessary for the purposes of resolving this dispute to make additional findings on 
whether India has also acted inconsistently with its obligations under Articles 5.1 and 7.1. We 
therefore exercise judicial economy and make no findings on these claims. We also exercise judicial 
economy with regard to Japan 's consequential claim in this regard under Article  XIX:1(a) of the 
GATT 1994.  
7.11  Whether India acted inconsis tently with Articles  3.1 and 4.2(c) of the Agreement on 
Safeguards  
7.286.   Japan refers to its previous claims that the Indian competent authority failed to provide in 
its Preliminary Findings and Final Findings a reasoned and adequate explanation of its various 
determinations, namely concerning (i) unforeseen developments , (ii) the effects of the obligations 
incurred under the GATT 1994 , (iii) the increase in imports , (iv) the definition of the domestic 
industry , (v) the serious injury and threat thereof , (vi) the existence of a causal link , and (vii) the 
imposition of the measures to the extent and for the time necessary to prevent or remedy serious 
injury. Consequently, Japan argues that India acted inconsistently with the last sentence of 
Article  3.1 and Article 4.2(c) of the Agreement on Safeguards by failing to set forth findings and 
reasoned conclusions for all pertinent issues of fact and law.449 India responds that it has 
demonstrated that its competent authority fully complied with the obligations under th e Agreement 
                                                
444 Japan's  first written submission, paras.  417-419. 
445 India's  first written submission, paras.  293 and 296 (referring to Appellate Body Report,  Korea – 
Dairy , paras.  98-100).  
446 India's  first written submission, para.  297. 
447 India's  first written submission, paras.  298-300. 
448 India's  first written submission, paras.  302-305. 
449 Japan's  first written submission, paras.  425-426; second written submis sion, para.  244. 
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  on Safeguards and Article  XIX of the GATT 1994 and provided reasoned and adequate explanations 
of its determination concerning "all pertinent issues of fact and law".450 
7.287.   Article  3.1 of the Agreement on Safeguards, in relevant part, reads as follo ws: 
The competent authorities shall publish a report setting forth their findings and reasoned 
conclusions reached on all pertinent issues of fact and law.  
7.288.   Article  4.2(c) of the Agreement on Safeguards, provides:  
The competent authorities shall publish pro mptly, in accordance with the provisions of 
Article  3, a detailed analysis of the case under investigation as well as a demonstration 
of the relevance of the factors examined.451 
7.289.   We have found above that India (i) acted inconsistently with Article  XIX:1(a)  of the 
GATT  1994, by failing to provide a reasoned and adequate explanation that the increase in imports 
of the product concerned into India occurred as a result of unforeseen developments  and the effect 
of the relevant obligations of the GATT 1994 ; (ii) acted inconsistently with Articles  2.1 and 4.2(a) of 
the Agreement on Safeguards and Article  XIX:1 of the GATT 1994, by failing to objectively examine 
trends in imports and to provide a reasoned and adequate explanation with regard to its conclusions 
on increased imports ; (iii) acted inconsistently with Articles  4.1(a) and 4.2(a) of the Agreement on 
Safeguards , by failing  to provide a reasoned and adequate explanation regarding its evaluation of 
certain injury factors  and its assessment of the situatio n of the domestic industry ; (iv) acted 
inconsistently with Articles  4.1(b) and 4.2(a)  of the Agreement on Safeguards , because the 
existence of a threat of serious injury was not adequately addressed or analysed in the findings of 
the competent authority ; and (v) acted inconsistently with Article  4.2(b)  of the Agreement on 
Safeguards , by failing to conduct a proper causation and non -attribution analysis. We consequently 
conclude that India acted inconsistently with its obligations under Articles  3.1 and 4.2( c) of the 
Agreement on Safeguards, by failing to provide reasoned conclusions on all pertinent issues of fact 
and law.  
7.290.   We have also found above that Japan has not demonstrated that India acted inconsistently 
with Article  4.1(c) of the Agreement on Safeguar ds with regard to its definition of the domestic 
industry . Accordingly, we reject Japan 's consequential claims in this regard under Articles  3.1 
and 4.2(c) of the Agreement on Safeguards.  
7.291.   Finally, we did not make findings on Japan 's claims that India acted  inconsistently under 
Articles  5.1 and 7.1 of the Agreement on Safeguards, by imposing the measure to the extent and 
for the time necessary to prevent or remedy serious injury. According, w e also exercise judicial 
economy and make no findings in this regar d under Articles  3.1 and 4.2(c) of the Agreement on 
Safeguards . 
7.12  Whether India acted inconsistently with Article  11.1(a) of the Agreement on 
Safeguards  
7.292.   Japan  refers to its claims above that the safeguard measure imposed  by India is inconsistent 
with various provisions of the Agreement on Safeguards as well as Article  XIX:1(a) of the 
GATT  1994. Consequently, Japan argues that India acted inconsistently with  Article  11.1(a) of the 
Agreement on Safeguards .452 
7.293.   Article  11.1(a) of the Agreement on Safeguards provides that : 
A Member shall not take or seek any emergency action on imports of particular products 
as set forth in Article  XIX of GATT 1994 unless such action conforms with the provisions 
of that Article  applied in accordance with this Agreement . 
                                                
450 India's  first written submission, para.  314. 
451 In US – Steel Safeguards , the panel found that Article  4.2(c) of the Agreement on Safeguards is an 
elaboration of the requirement set out in Article  3.1, last sentence, to provide a "reasone d conclusion" in a 
published report. (Panel Reports, US – Steel Safeguards , para.  289).  
452 Japan's  first written submission, para.  429; second written submission, para.  245. WT/DS518/ R 
 
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  7.294.   We rec all our findings above that the safeguard measure at issue is inconsistent with 
Articles  2.1, 3.1, 4.1(a), 4.1(b), 4.2(a), 4.2(b) , and 4.2(c) of the Agreement on Safeguards as well 
as Article  XIX:1(a) of the GATT 1994. We therefore do not consider it neces sary, for the purposes 
of resolving this dispute, to make additional findings on whether India has also acted inconsistently 
with its obligations under Article  11.1(a) of the Agreement on Safeguards. We therefore exercise 
judicial economy and make no findi ngs on this claim.  
7.13  Whether India acted inconsistently with Article  12 of the Agreement on Safeguards  
in notifying its measure and providing opportunities for consultations  
7.13.1   Japan 's claim under Article  12.4 of the Agreement on Safeguards  
7.13.1.1   Introduction  
7.295.   Japan claims that India acted inconsistently with Article  12.4 of the Agreement on 
Safeguards, because it notified the provisional safeguard measure to the WTO Committee on 
Safeguards after the measure had been taken.453 
7.296.   India does not dispute the facts. Ind ia argues, however, that its competent authority 
concluded that the provisional measure had to be imposed "on an urgent basis" , because  of the 
injury suffered by the domestic production , and because any delay in the application of a provisional 
safeguard d uty would have caused damage which would have been difficult to repair.  India adds 
that the provisional measure was imposed only for 200 days, which have since lapsed.454 India also 
argues that the notification requirement in Article  12.4 "is, at best, a pro cedural requirement" and 
that "the substantive right of a Member to address the 'critical circumstances ' as envisaged in 
Article  6 would be substantially diluted if an action in terms of this Article  is made contingent upon 
a mere notification requirement under Article  12.4" .455 
7.297.   In response, Japan argue s that India's defence "does not have any legal basis in the 
Agreement on Safeguards  and must therefore be rejected by the Panel".456 Japan adds that the fact 
that the circumstances of the case necessitated an urgent imposition of the provisional safeguard 
measure does not relieve India from its obligation under Article  12.4. Japan also argues that 
provisional safeguard measures are by nature "urgent" . In its view, "urgency" does not constitute 
an argument to escape the notification obligation under Article  12.4.457 
7.298.   The parties do not disagree on the relevant facts.  
7.299.   The Indian competent authority initiated the safeguard investigation at issue on 
7 Septembe r 2015.458 
7.300.   On 9 September 2015, the Indian competent authority issued its Preliminary Findings , in 
which it concluded that (i) increased imports of the products concerned into India caused and 
threatened to cause serious injury to the domestic industry ; and (ii) critical circumstances existed 
when  any delay in the application of safeguard measures would cause serious damage which would 
be difficult to repair. The Indian c ompetent authority imposed a provisional safeguard duty of 20% 
ad valorem  for 200 days.459 
7.301.   On 14 September 2015, the Department of Revenue, Ministry of Finance, after considering 
the Indian competent authority 's Preliminary Findings, imposed a provisional safeguard duty of 20% 
ad valorem  on imports into India of the products concerned. The duty would have a 
                                                
453 Japan's  first written submission, paras.  438-439; second written submission, para . 246. 
454 India's  first written submission, para.  336. 
455 India's  response to Panel question No.  128. 
456 Japan's  opening statement at the first meeting of the Panel, para.  103. See also response to Panel 
question  No. 65, para.  104; and comments on India's  response to Panel question No.  128, para.  81. 
457 Japan's  second written submission, paras.  248-249; response to Panel question No.  65, para.  105. 
458 Notice of Initiation, (Exhibits  JPN-4/IND -4), pp.  5-8. 
459 Preliminary Findings, (Exhibits  JPN-7/IND -7), pp.  12-19. 
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  200-day duration. The measure entered into force on 14  September 2015, the date  in which the 
notification imposing the provisional safeguard measure  was published in The Gazette of India.460 
7.302.   On 15 September 2015, India notified the WTO Committee  on Safeguards, pursuant to 
Article  12.1(a) of the Agreement on Safeguards, of the initiation of the safeguard investigation.461 
On 28  September  2015, India notified the WTO Committee on Safeguards, pursuant to Article  12.4 
and Article  9, footnote 2, of the Agreement on Safeguards, of the application of the provisional 
safeguard measure.462 
7.13.1.2   Evaluation by the Panel  
7.303.   Article  12.4 of the Agreement on Safeguards  provides in relevant part that:  
A Member shall make a notification to the Committee  on Safeguards before taking a 
provisional safeguard measure  referred to in Article  6.463 
7.304.   As noted above, the parties do not disagree on the relevant facts.  The provisional safeguard 
measure at issue entered into force on 14  September  2015, whereas India not ified the 
Committee  on Safeguards  of this measure on 28  September 2015, i.e. two weeks later. Both parties 
agree that the measure in question is a provisional safeguard measure of the type referred  to in 
Article  6 of the Agreement on Safeguards . Consequent ly, as a matter of fact, India did not notify the 
Committee on Safeguards before  taking the provisional safeguard measure  at issue.  
7.305.   The circumstances that India raised (namely, that its competent authority concluded that 
provisional measures had to be impo sed "on an urgent basis" ) do not exempt India from its 
obligation under Article  12.4. 
7.13.1.3   Conclu sion 
7.306.   For the reasons explained above, we conclude  that India acted inconsistently  with 
Article  12.4 of the Agreement on Safeguards  by failing to notify the Committee on Safeguards before  
taking the provisional safeguard measure  at issue.  
7.13.2   Japan 's claim  under Article  12.1 of the Agreement on Safeguards  
7.13.2.1   Introduction  
7.307.   Japan claims that India acted inconsistently with Article  12.1 of the Agreement on 
Safeguards , because it failed to notify the WTO Committee on Safeguards  immediately 
upon (i) initiating the investigation relating to serious injury or threat thereof , (ii) making a finding 
of serious injury or threat thereof caused by increased imports , and (iii) taking a decision to apply a 
safeguard measure.  
7.308.   With respect to Article  12.1(a), Japan notes that India published the notice of the initiation 
of the safeguard investigation in The Gazette of India  on 7 September 2015, while the 
WTO Committee on Safeguards was notified on 15 September 2015. Japan argues that the term 
"immediately" used in Article  12.1 should be examined on a case by case basis "considering in 
particular the complexity of the notification being made and the need for translation into one of the 
WTO's official languages ".464 Japan submits that, in the present case there was no issue of 
translation since the Notice of Initiation was originally published in English  in The Gazette of India . 
Moreover , the notification made to the WTO was relatively short (450 words) , compared to previous 
cases , and the elements contained in the notification were the usual, were not complex , and were 
                                                
460 Notification imposing a provisional safeguard measure , (Exhibits  JPN-8/IND -8), p.  2. 
461 Notification under Article  12.1(a) of the SA  (15 September 2015 ), (Exhibits  JPN-9/IND -9). 
462 Notification under  Article  12.4 of the SA (28 September 2015 ), (Exhibits  JPN-10/IND -10). 
463 Emphasis added. Article  6 of the Agreement on Safeguards is the provision on Provisional Safeguard 
Measures.  
464 Japan's  first written submission, paras.  447 and 454. See also ibid. par a. 443; and second written 
submission, para.  252 (referring to Appellate Body Report, US – Wheat Gluten , para.  105).  
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  already included in the Notice of Initiation  itself.465 Japan concludes that the notification  that India 
made to  the Comm ittee on Safeguards  after eight days of the initiation  of the safeguard investigation  
was not "immediate"  and was therefore inconsistent with Article  12.1(a) of the Agreement on 
Safeguards .466 Japan adds that this 8 -day delay is all the more problematic as India imposed the 
provisional safeguard duty on 14 September 2015, that is , before India notified the Committee on 
Safeguards of the initiation of the investigation. According to Japan, conside ring such a delay as an 
"immediate"  notification would go again st the purpose of Article  12, which is to ensure transparency , 
as WTO Members were not even informed of the initiation of the investigation at the time of the 
imposition of the provisional safeguard duty .467 
7.309.   With respect to Article  12.1(b), Japan notes that India published the Final Findings for the 
safeguard investigation in The Gazette of India  on 15 March 2016, while the WTO Committee on 
Safeguards was notified on 21 March 2016. Japan argues again that the examination of the term 
"immediately" should be do ne considering the complexity of the notification being made and the 
need for translation into one of the WTO 's official languages .468 Japan submits that, in the present 
case there was no issue of translation since the Final Findings were originally published in English  in 
The Gazette of India . Moreover , the notification made to the WTO was relatively short 
(1,300  words) .469 Japan concludes that the notification  that India made  to the Committee on 
Safeguards after six days of the Final Findings for the safeguard investigation was not "immediate" 
and was therefore inconsistent with Article  12.1( b) of the Agreement on Safeguards .470 
7.310.   With respect to Article  12.1(c), Japan notes that India published the decision to apply a 
definitive safeguard measure in The G azette of India  on 29 March 2016, while the WTO Committee 
on Safeguards was notified on 4 April 2016. Japan submits that, in the present case there was no 
issue of translation since the decision to apply the safeguard measure was originally published in 
English  in The Gazette of India . Moreover , the notification made to the WTO was very short 
(330 words) .471 Japan concludes that the notification that India made to the Committee on 
Safeguards after six days of the decision to apply a definitive safeguard mea sure was not 
"immediate" and was therefore inconsistent with Article  12.1( c) of the Agreement on Safeguards .472 
7.311.   India does not dispute the facts as described by Japan. India states that it notified the 
Committee o n Safeguards of each of the relevant decision s within six to eight days (four to 
six working days) from the date of initiation, the date of the findings of serious injury , and from the 
date of the imposition of the definitive safeguard measure , respectively .473 
7.312.   India notes that , once the competent authority under Indian legislation adopts the relevant 
decision, this decision is published in the Gazette of India and then notified with the relevant 
documents to the Ministry of Commerce , which is the department in charge of making n otifications 
to the WTO. The Ministry of Commerce prepares a summary of the relevant decision in order to fulfill 
the requirements of Article  12 of the Agreement on Safeguards . The duration of this step depends  
on the complexities of the case. Once the not ification is prepared, it must be approved by senior 
officials. The relevant documents are then sent to the Pe rmanent Mission of India to the  WTO, which 
files the relevant notification to the Committee.474 
                                                
465 Japan's  first written submission, para.  455. See also second written submission, para.  253. 
466 Japan's  first written submission, para.  455; second written submission, para.  255. 
467 Japan's  first written submission, para.  456. 
468 Japan's  first written submission, para.  458; second written submission, para.  252. 
469 Japan's  first written submission, para.  459. See also second written submission, p ara. 253. 
470 Japan's  first written submission, paras.  457 and 459; second written submission, para.  255. 
471 Japan's  first written submission, para.  461. See also second written submission, para.  253. 
472 Japan's  first written submission, paras.  460-461; second  written submission, para.  255. 
473 India's  first written submission, paras.  323-326. 
474 India's  response to Panel question No.  129. India's  response refers to the internal procedures and 
steps that are adopted to notify to the Committee on Safeguards the fin al findings in a safeguard investigation. 
(Japan's  comments on India's  response to Panel question No.  129, para.  82). There is no reason to assume, 
however, that those steps are different when notifying the initiation of an investigation or the decision to  apply 
a safeguard measure.  
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  7.313.   In India 's view, there was no undue delay in keeping  the Members informed of the various 
steps of the investigation and therefore, India complied with the requirements of Article  12.1 of the 
Agreement on Safeguards.475 
7.314.   The parties do not disagree on the relevant facts.  
7.315.   The notice of the initiation of the safe guard investigation at issue by the Indian competent 
authority was published in The Gazette of India  on 7 September 2015.476 On 15 September 2015, 
India notified the WTO Committee on Safeguards, pursuant to Article  12.1(a) of the Agreement on 
Safeguards, of the initiation of the safeguard investigation.477 In other words, India notified the 
Committee on Safeguards  eight days after the initiation of the investigation.  
7.316.   The Final Findings of the Indian competent authority for the safeguard investigation were 
published in The Gazette of India  on 15 March 2016.478 On 21 March 2016, India notified the 
Committee on Safeguards, pursuant to Article  12.1( b) of the Agreement on Safeguards, of the 
findings o f serious injury or threat thereof caused by increased imports.479 In other words, India 
notified the Committee on Safeguards  six days after making a finding of serious injury or threat 
thereof caused by increased imports . 
7.317.   On 29 March 2016, the Department of  Revenue 's Notification No. 1/2016 -Customs (SG), 
whereby a definitive safeguard measure was imposed, was published in The Gazette of India.480 On 
4 April 2016, India notified the Committee on Safeguards, pursuant to Article  12.1( c) of the 
Agreement on Safegu ards, of its decision to impose a measure .481 In other words, India notified the 
Committee on Safeguards  six days after taking a decision to apply a safeguard measure.  
7.13.2.2   Evaluation by the Panel  
7.318.   Article  12.1 of the Agreement on Safeguards  provides that:  
A Member shall immediately notify the Committee on Safeguards upon:  
(a) initiating an investigatory process relating to serious injury or threat 
thereof and the reasons for it;  
(b) making a finding of serious injury or threat thereof caused by 
increased impo rts; and  
(c) taking a decision to apply or extend a safeguard measure.  
7.319.   As noted above, the parties do not disagree on the relevant facts.  India notified the 
Committee on Safeguards  (i) eight days after initiating the investigation , (ii) six days after maki ng 
a finding of serious injury or threat thereof caused by increased imports , and (iii) six days after 
taking a decision to apply a safeguard measure.  
7.320.   Article  12.1 requi res that the notifications  in question be made  "immediately " upon the 
occurrence of the  specified events . The word "immediately" can be defined as "without delay, at 
once, instantly".482 The Appellate Body in US – Wheat Gluten  stated that the word "immediately"  
"implies a certain urgency" and that the  degree of urgency required depends on a ca se-by-case 
assessment, account being taken of the administrative difficulties involved in prepa ring the 
notification at issue and  the charact er of the information supplied.  The Appellate Body clarified  in 
                                                
475 India's  first written submission, para.  326. 
476 Notice of Initiation , (Exhibits  JPN-4/IND -4), pp.  5-8. 
477 Notification under Article  12.1(a) of the SA (15 September 2015 ), (Exhibits  JPN-9/IND -9). 
478 Final Findings, (Exhibit s JPN-11/IND -11), pp.  119-209. 
479 Notification under Article  12.1(b) of the SA (21 March 2016) , (Exhibits  JPN-12/IND -12). 
480 Notification imposing a definitive safeguard measure , (Exhibits  JPN-13/IND -13), pp.  6-7. 
481 Notification under Article  12.1(b) and Article  12.1(c) of the SA (4 April 2016) , 
(Exhibits  JPN-14/IND -14). 
482 Shorter  Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 1330.  
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  particular  that relevant factors in assessing the degree of urgency may  include the complexity of the 
notification  to be made  and the need for translation into one of the WTO 's official languages.  The 
Appellate Body also cautioned that the  amount of time to prepare  and submit  a notification must, in 
all cases, be kept to a minimum, as the underlying obligation is to notify "immediately".483 
7.321.   The Appellate Body has also stated that an "immediate" notification is that which allows the 
Committee on Safeguards, and Members in general, the fullest possible period  to reflect upon and 
react to an ongoing safeguard investigation .484 This suggests that a determination of whether a 
notification was "immediate" does not require consideration of whether the Committee or Members 
had sufficient time to review th e notification  or whether individual Members suffered prejudice 
through an insufficiency in the notification period .485 
7.13.2.2.1   Japan 's claim  under Article  12.1(a) 
7.322.   Japan asserts that by notifying the Committee on Safeguards of the initiation of the 
investigation eight days after the publication of the notice of the initiation of the safeguard 
investigation in The Gazette of India , India failed to comply with the requirement of "immediate" 
notification.486 
7.323.   India responds that it notified the initiation of the investigation at issue t o the Committee o n 
Safeguards within eight days (six working days) from the date in which the decision was published 
in The Gazette of India.487 India has referred to the internal administrative process by which the 
decision to initiate an investigation is notified to the Committee on Safeguards .488 In India 's view, 
there was no undue delay in keeping the Members informed of the initiation of the investigation. 
India submits that this was an immediate notification in the sense of Article  12.1 of the Agreement 
on Safeguards and that it therefore acted consistently with its obligations under this provision.489 
7.324.   As noted, the parties do not disagree on the relevant facts.  The notice of the initiation of the 
safeguard investigation was published in The Gazette of Indi a on 7 September 2015 and the 
Committee on Safeguards was notified on 15 September 2015. Accordingly, India 's notification to 
the Committee on Safeguards of the initiation of the safeguard investigation occurred eight calendar 
days after the relevant trigg ering event (the publication of the initiation of the investigation in The 
Gazette of India) . 
7.325.   The notification that India filed is a relatively short document (one and a half pages), which 
contains (i) t he date of initiation of investigation , (ii) the POI, (iii) the p roduct under investigation , 
(iv) the r easons for the initiation of the investigation , (v) the p oint of contact , and (vi) the deadlines 
for interested parties to make their views known and for any other party to submit a request to be 
considered as an interested party.490 The information is extracted from the notice of the initiation of 
the safeguard investigation whi ch was published in English  in The Gazette of India . The notification, 
however, does not merely reproduce the notice of the initiation of the investigation. We also note 
India's explanation as to the administrative steps that must be completed before a not ification is 
filed. 
7.326.   Finally, we keep in mind that, in previous cases, the following periods between the initiation  
of a safeguard investigation  and the notification to the Committee on Safeguards  under 
Article  12.1(a) were found by the respective panels no t to have been "immediate" (i) a 14-day period 
                                                
483 Appellate Body Report, US – Wheat Gluten , para.  105. 
484 Appellate Body Report, US – Wheat Gluten , para.  106. 
485 Appellate Body Report, US – Wheat Gluten , para.  106. 
486 Japan's  first written submission, paras.  454-455; second written submission, para.  255. 
487 India's  first written submission, para.  323. 
488 India's  response to Panel question  No. 129. India's  response refers to the internal procedures and 
steps that are adopted to notify to the Committee on Safeguards the final decision to apply a safeguard 
measure. (See Japan's  comments on India's  response to Panel question No.  129). There is  no reason to 
assume, however, that those steps differ considerably when notifying the initiation of an investigation.  
489 India's  first written submission, paras.  323 and 326.  
490 Notification under Article  12.1(a) of the SA (15 September 2015 ), (Exhibits  JPN-9/IND -9). 
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  by the panel on Korea – Dairy491, (ii) a 16 -day period by the panel o n US – Wheat Gluten492, and 
(iii) an 11 -day period by the panel on Ukraine  – Passenger Cars .493 
7.327.   Having considered the above, and although we are aware that the amount of time to prepare  
and submit  a notification must  be kept to a minimum, we find that the notification under 
Article  12.1(a)  of the Agreement on Safeguards  of the initiation of the inves tigation eight days after 
the publication of the notice of initiation  is not unreasonable. Accordingly, Japan has not 
demonstrated that the notification was not "immed iate". 
7.13.2.2.2   Japan 's claim  under Article  12.1(b) 
7.328.   Japan asserts that by notifying the Committee on Safeguards of the Final Findings for the 
safeguard investigation six days after their publication in The Gazette of India , India failed to comply 
with the require ment of "immediate" notification.494 
7.329.   India responds that it notified its findings of serious injury or threat thereof caused by the 
increased imports to the Committee on Safeguards within six days (four working days) from the 
date in which the decision was published in The Gazette of India.495 India has referred to the internal 
administrative process by which the findings of serious injury or threat thereof are notified to the 
Committee on Safeguards .496 In India 's view, there was no undue delay in keeping the Members 
informed of its findings of serious inj ury. India submits that this was an immediate notification in 
the sense of Article  12.1 of the Agreement on Safeguards and that it therefore acted consistently 
with its obligations under this provision.497 
7.330.   As noted, the parties do not disagree on the relevan t facts.  The Final Findings  of the Indian 
competent authority for the safeguard investigation were published in The Gazette of India  on 
15 March 2016 and the Committee on Safeguards was notified on 21 March 2016. Accordingly, 
India's notification to the Committee on Safeguards of the findings of serious injury or threat thereof 
occurred six calendar days after the relevant triggering event (the publication of the findings in The 
Gazette of India) . 
7.331.   The notification that India filed  is a four -page document, which contains (i) information on 
whether there is an absolute increase in imports (including information on the share of imports 
relative to production) ; (ii) information on serious injury or threat thereof caused by increased 
imports ; (iii) information o n the evidence of serious injury (including information on the market 
share, production,  the ch ange in level of domestic sales, capacity utilization, profits and losses, 
employment and productivity, inventories,  and unforeseen developments) ; (iv) informati on on an 
adjustment plan; (v) information on the product involved; (vi) description of the proposed measure ; 
(vii) further information ; and (viii) proposed date of imposition of the safeguard measure. The same 
document also contains a notification pursuant  to Article  9, footnote 2, of the Agreement on 
Safeguards .498 The information is extracted from the Final Findings for the safeguard investigation 
which was published in English  in The Gazette of India . The notification, however, does not merely 
reproduce th e Final Findings. We also note India 's explanation as to the administrative steps that 
must be completed before a notification is filed.  
7.332.   Finally, we keep in mind that, in previous cases,  the respective panels found the following 
periods between a determination of serious injury  and the notification to the Committee on 
Safeguards  under Article  12.1(b) not to have been "immediate" (i) a 40-day period by the panel on 
                                                
491 Panel Report, Korea – Dairy , para.  7.134.  
492 Panel Report, US – Wheat Gluten , para.  8.197. This finding was upheld by the Appellate Body. 
(Appellate Body Report, US – Wheat Gluten , para.  112).  
493 Panel Report, Ukraine – Passenger Cars , para.  7.476. 
494 Japan's  first written submission, paras.  457-459; second written submission, para.  255. 
495 India's  first written submission, para.  324. 
496 India's  response to Panel question No.  129. India's  response refers to the internal procedures and 
steps that are  adopted to notify to the Committee on Safeguards the final decision to apply a safeguard 
measure. (See Japan's  comments on India's  response to Panel question No.  129). There is no reason to 
assume, however, that those steps differ considerably when notify ing findings of serious injury or threat 
thereof caused by increased imports.  
497 India's  first written submission, paras.  323-324 and 326.  
498 Notification under Article  12.1( b) of the SA (21 March 2016) , (Exhibits  JPN-12/IND -12). 
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  Korea – Dairy499, (ii) a 26 -day period by the panel o n US – Wheat Gluten500, and (iii) a period of 
more than 10 months by the panel on Ukraine  – Passenger Cars .501 
7.333.   Having considered the above, and although we are aware that the amount of time to prepare  
and submit  a notification must  be kept to a minimum, we find that the notification under 
Article  12.1( b) of the Agreement on Safeguards  of the findings of serious injury six calendar days 
after the publication of th ose findings is not unreasonable. Accordingly, Japan has not demonstrated 
that the notification was not "immed iate". 
7.13.2.2.3   Japan 's claim  under Article  12.1(c) 
7.334.   Japan asserts that by notifying the Committee on Safeguards of the decision to apply a 
definitive safeguard measure six days after its publication in The Gazette of India , India failed to 
comply with the require ment of "immediate" no tification.502 
7.335.   India responds that it notified its definitive safeguard measure to the Committee on 
Safeguards within six days (four working days) from the date in which the decision was published in 
The Gazette of India.503 India has referred to the internal administrative process by which the 
decision to apply a safeguard measure is notified to the Committee on Safeguards .504 In India 's view, 
there was no undue delay in keeping the Members informed of its decision to apply a safeguard 
measure . India su bmits that this was an immediate notification in the sense of Article  12.1 of the 
Agreement on Safeguards and that it therefore acted consistently with its obligations under this 
provision.505 
7.336.   As noted, the parties do not disagree on the relevant facts.  The decision to apply a definitive 
safeguard measure was published in The Gazette of India  on 29  March 2016 and the Committee on 
Safeguards was notified on 4 April 2016. Accordingly, India 's notification to the Committee on 
Safeguards of the decision to apply a safeguard measure  occurred six calendar days after the 
relevant triggering event (the publication of the findings in The Gazette of India) . 
7.337.   The notification that India filed is a relatively short document (one and a half pages), which 
contains (i) t he classification of the product under consideration , (ii) a description of the safeguard 
measure imposed , (iii) the date of introduction of the measure , (iv) the duration of the measure , 
and (v) further information (the website where the text of the decision can be accessed).506 The 
information is extracted from the notification on the imposition of a definitive safeguard measure 
which was published in English  in The Gazette of India . The n otification to the Committee on 
Safeguards , however, does not merely reproduce the notice published in The Gazette of India . We 
also note India 's explanation as to the administrative steps that must be completed before a 
notification is filed.  
7.338.   Finally, in a previous case, a 23 -day period between the decision to apply a safeguard 
measure and the notification to the Committee on Safeguards under Article  12.1(c) was found by 
the panel on Korea – Dairy  not to have been "immediate".507 In contrast, t he Appellate B ody in 
US – Wheat Gluten  found that a notification to the Committee on Safeguards made by the 
United  States  five days after having taken the decision to apply the safeguard measure (and one 
day after the decision had been published in the US Federal Regist er) was not inconsistent with 
Article  12.1(c).508 The panel on Ukraine – Passenger Cars  also found that a notification to the 
                                                
499 Panel Report, Korea – Dairy , para.  7.137.  
500 Panel Report, US – Wheat Gluten , para.  8.199. This finding was upheld by the Appellate Body. 
(Appellate Body Report, US – Wheat Gluten , para.  116).  
501 Panel Report, Ukraine – Passenger Cars , para.  7.494.  
502 Japan's  first written submiss ion, paras.  460-461; second written submission, paras.  253-255. 
503 India's  first written submission, para.  325. 
504 India's  response to Panel question No.  129. 
505 India's  first written submission, paras.  323 and 325 -326. 
506 Notification under Article  12.1(b) an d Article  12.1(c) of the SA (4 April 2016) , 
(Exhibits  JPN-14/IND -14). 
507 Panel Report, Korea – Dairy , para.  7.145.  
508 Appellate Body Report, US – Wheat Gluten , paras.  128-130. 
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  Committee on Safeguards that Ukraine made seven days after having taken the decision to apply 
the safeguard measure was not inconsistent with Article  12.1(c) of the Agreement on Safeguards .509 
7.339.   Having considered the above, and although we are aware that the amount of time to prepare  
and submit  a notification must  be kept to a minimum, we find that the notification under 
Article  12.1( c) of the Agreement on Safeguards  of the decision to apply a definitive safeguard 
measure six calendar days after the publication of that decision is not unreasonable. Acc ordingly, 
Japan has not demonstrated that the notification was not "immed iate". 
7.13.2.3   Conclu sion 
7.340.   For the reasons explained above, we conclude  that Japan has failed to demonstrate 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 , respectively,  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.  
7.13.3   Japan 's claim  under Article  12.2 of the Agreement on Safeguards  
7.13.3.1   Introduction  
7.341.   Japan claims that India acted inconsistently with Article  12.2 of the Agreement on 
Safeguards, because in making the notifications pursuant to Articles  12.1(b) and  12.1(c), it failed to 
provide the WTO Committee on Safeguards  with "all pertinent information" . According to Japan, 
India's notification of 21  March  2016 does not contain the following information ( i) information on 
the causal link between the increased imports and the serious injury or threat thereof , (ii) a precise 
description of the product involved , (iii) a precise description of the scope of the proposed measure , 
and (iv) the proposed date of introduction of the proposed measure .510 
7.342.   With respect to causation , Japan argues that in s ection 2 of its notification , entitled " serious 
injury or threat ther eof caused by increased imports"511, India only explained the injury suffered by 
the domestic industry  in general  and the amount of increase in imports but not the causal link 
between the increased imports and the serious injury or threat thereof.512 
7.343.   With respect to the description of the product involved, Japan argues that, by failing to 
identify in its notification t he product types excluded from the general definition of the "product 
under consideration", India failed to provide a precise description of the product involved.  Japan 
notes that , in section  5 of its notification, India describes the product under conside ration as 
follows:  "[h]ot-rolled flat products of non -alloy and other alloy steel in coils of a width of 600 mm or 
more … classified under Chapter 72 of the Customs Tariff Act, 1975 under tariff heading 7208 and 
tariff item 72253090".513 In Japan 's view, thi s description does not reflect the product exclusion as 
listed in paragraph 2 of the Final Findings , at least with respect  to American  Petroleum Institute  (API) 
grade steel .514 
7.344.   Japan also argues that India failed to provide a precise description of the scope  of the 
proposed measure. Japan states that section  6 of India 's notification, entitled "Precise description of 
the proposed measure ", only indicates that the Indian competent authority recommended the 
imposition of a "safeguard duty at the rate of 20% ad valorem  for the first year, 18% ad valorem  
for the second year (for first 6 -months), 15% ad valorem  for second year (for next 6 -months) 
and 10% ad valorem  for third year (for 6 -months)"  on the products concerned.515 According to 
                                                
509 Panel Report, Ukraine – Passenger Cars , para.  7.502.  
510 Japan's  first written sub mission, paras.  462 and 469; second written submission, para.  256. 
511 Notification under Article  12.1(b) of the SA (21 March 2016 ), (Exhibits  JPN-12/IND -12). 
512 Japan's  first written submission, para.  470; second written submission, para.  258; response to Pa nel 
question No.  131, paras.  79-80; and comments on India's  responses to Panel question Nos. 130 and 131, 
paras.  84-88. 
513 Notification under Article  12.1(b) of the SA (21 March 2016 ), (Exhibits  JPN-12/IND -12), p.  4. 
514 Japan's  first written submission, paras.  471-473; second written submission, para.  259; and 
response to Panel question No.  132, paras.  81-82. 
515 Notification under Article  12.1(b) of the SA (21 March 2016 ), (Exhibits  JPN-12/IND -12), p.  4. 
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  Japan, the notification  did not mention that any anti -dumping duty paid would  be deducted from the 
safeguard duty rates listed  or that the safeguard duty sh ould not be imposed on the subject goods 
imported at or above the Minimum Import Price set out in Not ification No.  38/2015 -2020 o f 
5 February 2016. In Japan 's view, t hese elements determine the scope of the proposed measure.516 
7.345.   Finally, Japan argues that India failed to notify the "proposed date of introduction " of the 
proposed measure. Japan states that section  8 of India 's notification, entitled "proposed date of 
imposition of safeguard measure ", only  indicates that "[t]he safeguard measure will be applicable 
from the date of issue of notification in this regard by the Department of Revenue, Ministry of 
Finance, Government o f India" .517 According to Japan, t his does not amount to the identification of 
the proposed date of introduction of the safeguard measure as the notification does not identify any 
date.518 
7.346.   In response, India submits that its notification to the WTO Committee o n Safeguards  of 
21 March  2016 fully complied with the requirements under Article  12.2 of the Agreement on 
Safeguards.519 India argues that section  2 of its notification specifically deals with the serious injury 
or threat thereof caused by "increased imports ".520 In India 's view, Article  12 does not require that 
a Member include in the notification any information with respect to the existence of a causal link 
between increased imports and the serious injury, nor with respect to non -attribution.521 
7.347.   India also argues that, although its notification does not detail the exclusions from the 
product under consideration,  this does not imply that the precise description of the product involved 
was not provided. In India 's view, the description required unde r Article  12.2 refers only to the 
"product under consideration ", which India detailed , while  the exclusions are only as regards what 
was not included in the " product under consideration ".522 India adds that the requirement in 
Article  12.2 to provide the description  of the product is to ensure that the exporting Member 's right 
to defend itself is not hampered. According to India , when there are exclusion s in the product 
covered by the investigation, no such right gets affected.523 
7.348.   India argues further that Article 12.2 only requires a description of the proposed measure , 
which was included in section  6 of its notification , and not of the manner of operation of the proposed 
measure . In India 's view, the fact that any anti -dumping duty paid would be deducted from the 
safeguard duty rates listed , and that the safeguard duty should not be imposed on subject goods 
which were imported at or above the Minimum Import Price set out in Notification No. 38/2015 -2020 
of 5 February 2016 , refer to the man ner of operation of th e measure  and not to the description of 
the proposed measure.524 India adds that the precise description of the applied measure, which was 
less burdensome than the proposed measure, was contained in the Department of 
Revenue 's Notification No. 1/2016 -Customs  (SG), dated 29 March 2016,  which India notified  on 
4 April 2016.525 
7.349.   India additionally argues that its notification clearly indicates that the measure would be 
applicable from the date of notification by the Department of Revenue, Government of India, which  
corresponds to the identification of the "proposed date of introduction of the proposed measure ".526 
India submits that its notification, not only satisfies  the requirements of Article  12.2, but also informs 
all interested Members where any further information would be available.527 India adds that, under 
                                                
516 Japan's  first w ritten submission, paras.  474-476; second written submission, para.  260; and 
comments on India's  response to Panel question No.  133, paras.  89-91. 
517 Notification under Article  12.1(b) of the SA (21 March 2016 ), (Exhibits  JPN-12/IND -12), p.  4. 
518 Japan's  first written submission, paras.  477-478; second written submission, para.  261; response to 
Panel question No.  134, paras.  83-86; and comments on India's  response to Panel question No.  134, 
paras.  92-93. 
519 India's  first written submission, paras.  327-328. 
520 India's  first written submission, paras.  329-330; response to Panel question No.  130. 
521 India's  responses to Panel question Nos. 130 and 131; comments on Japan's  response to Panel 
question No.  131, paras.  63-64. 
522 India's  first written submission, para.  331. 
523 India's  comments on Japan's  response to Panel question No.  132, paras.  65-66. 
524 India's  first written submission, para.  332. 
525 India's  response to Panel question No.  133 (referring to Notification under Articles  12.1( b) 
and 12.1( c) of the SA (4 April 2016), (Exhibit  IND-14)). 
526 India's  first written submission, para.  333. 
527 India's  first written submission, para.  334. 
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  Article  12.2, the notifying Member has the flexibility to introduce the safeguard measure in 
accordance with its domestic procedures and laws and there is no requirement to provide a precise 
date of i ntroduction.528 
7.350.   The parties do not disagree on the basic relevant facts.  
7.351.   On 21 March 2016, India notified the Committee on Safeguards of its finding of serious injury 
or threat thereof caused by increased imports and of the measure it had proposed to impose  
pursuant to Article  12.1( b) and Article  9, footnote 2, of the Agreement on Safeguards .529 
7.352.   On 29 March 2016, the Department of Revenue 's Notification No. 1/2016 -Customs (SG), 
whereby a definitive safeguard measure was imposed, was published in The Gazette of India.530 On 
4 April 2016, India notified the Committee on Safeguards, pursuant to Article  12.1( c) of the 
Agreement on Safeguards, of its decision to impose a measure .531 
7.13.3.2   Evaluation by the Panel  
7.353.   Article  12.2 of the Agreement on Safeguards  provides in relevant part that:  
In making the notifications referred to in paragraphs  1(b) and  1(c), the Member 
proposing to apply or extend a safeguard measure shall provide the Committee on 
Safeguards with all pertinent information, which shall include evidence of serious in jury 
or threat thereof caused by increased imports, precise description of the product 
involved and the proposed measure, proposed date of introduction, expected duration 
and timetable for progressive liberalization . 
7.354.   As noted above, the parties do not disa gree on the basic relevant facts.  India notified the 
Committee on Safeguards  of its finding s of serious injury or threat thereof and of its proposed 
measure  on 21 March 2016  pursuant to Article  12.1( b) of the Agreement on Safeguards . The 
notification that India filed is a four -page document, which contains sections on (i) information on 
whether there is an absolute increase in imports (including information on the share of imports 
relative to production) ; (ii) information on serious injury or threat thereo f caused by increased 
imports  (including information on serious injury and on threat of serious injury) ; (iii) information on 
the evidence of serious injury (including information on the market share , production , the change in 
level of domestic sales , capacity utilization , profits and losses , employment and productivity , 
inventories , and unforeseen developments) ; (iv) information on an adjustment plan ; (v) information 
on the product involved ; (vi) description of the proposed measure , including a timetable f or its 
progressive liberalization ; (vii) further information  with respect to the date of publication of the Final 
Findings  in The Gazette of India; and (viii) proposed date of imposition of the safeguard measure.532 
7.355.   On 4 April 2016, India notified its decision to impose a measure to the Committee on 
Safeguards, pursuant to Articles  12.1( b) and 12.1( c) of the Agreement on Safeguards . The 
notification that India filed is a two -page document, which contains sections on (i) product 
classification , (ii) the safeguard measure imposed, including a timetable for its 
progressive  liberalization , (iii) the date of introduction of the measure , (iv) the duration of the 
measure , and (v)  further information on where the Department of Revenue 's Notification 
No. 1/2016-Customs (SG), dated 29 March 2016, whereby the definitive safeguard measure was 
imposed, may be accessed.533 
7.356.   In a statement supported by the Appellate Body, the panel in Korea – Dairy  noted that the 
notification in Article  12 serves essentially a transpar ency and information purpose:  
In ensuring transparency, Article  12 allows Members through the Committee on 
Safeguards to review the measures. Another purpose of the notification of the finding 
                                                
528 India's  response to Panel question No.  134. 
529 Notification under Article  12.1(b) of the SA (21 March 2016 ), (Exhibits  JPN-12/IND -12). 
530 Notification imposing a definitive safeguard measure , (Exhibits  JPN-13/IND -13), pp.  6-7. 
531 Notification under Articles  12.1( b) and 12.1( c) of the SA (4 April 2016), (Exhibits  JPN-14/IND -14). 
532 Notification under Article  12.1( b) of the SA (21 March 2016) , (Exhibits  JPN-12/IND -12). 
533 Notification under Articles  12.1( b) and 12.1( c) of the SA (4 April 2016), (Exhibits  JPN-14/IND -14). 
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  of serious injury and of the proposed measure is to inform Memb ers of the 
circumstances of the case and the conclusions of the investigation together with the 
importing country 's particular intentions. This allows any interested Member to decide 
whether to request consultations with the importing country which may lea d to 
modification of the proposed measure(s) and/or compensation.534 
7.357.   In the same case, regarding the object and purpose of the noti fication requirements in 
Article  12, the Appellate Body added:  
We believe that the purpose of notification is better served if it includes all the elements 
of information specified in Articles  12.2 and 4.2. In this way, exporting Members with a 
substantial interest in the product subject to a safeguard measure will be  in a better 
position to engage in meaningful consult ations, as envisaged by Article  12.3, than they 
would otherwise be if the notification did not include all such elements. And, the 
Committee on Safeguards can more effectively carry out its surveillance function set 
out in Article  13 of the Agreement on Safeguards . At the same time, providing the 
requisite information to the Committee on Safeguards does not place an excessive 
burden on a Member proposing to apply a safeguard measure as such information is , or 
should be, readily available to it.535 
7.358.   With respect to causation , Japan argues that India failed to provide pertinent information on 
the causal link between the increased imports and the serious injury or threat thereof. Sections  2 
and 3 of India 's notification of 21 March 2016 are entitled respectively "S erious injury or threat 
thereof caused by increased imports"  and "Evidence of serious injury" . In the relevant part , section  2 
states that:  
Evidence of serious injury has been analysed & explained i n subsequent paragraphs.  It 
is thus concluded that [the domestic industry] has suffered serious injury and increased 
imports of the product under consideration threaten to cause serious injury to the 
[domestic industry] .536 
7.359.   Section 3 of the 21 March notification, entitled "Evidence of serious injury", also states that 
"[t]he increased imports of [the product under consideration] into India have caused s erious injury  
to the domestic producers as reflec ted by the following parameters …" .537 
7.360.   Article  12.2 p rovides in its relevant part that, i n making the notifications referred to in 
Articles  12.1 (b) and (c), the notifying Member shall provide the Committee on Safeguards with all 
pertinent information, which shall include evidence of serious injury or threat  thereof caused by 
increased imports . In this respect, the Appellate Body noted in Korea – Dairy  that: 
To comply with the requirements of Article  12.2, the notifications pursuant to 
paragraphs 1(b) and 1(c) of Article  12 must, at a minimum , address all the  items 
specified in Article  12.2 as constituting "all pertinent information" , as well as the factors 
listed in Article  4.2 that are required to be evaluated  in a safeguards investigation.538 
7.361.   The factors that Article  4.2 of the Agreement on Safeguards  requires competent authorities 
to evaluate in an investigation to determine whether increased imports have caused or are 
threatening to cause serious injury to a domestic industry are all relevant factors of an objective and 
quantifiable nature that have  a bearing on the situation of that industry . The provision lists  in 
particular  the following (i) the rate and amount of the increase in imports of the product concerned 
in absolute and relative terms , (ii) the share of the domestic market taken by the increased imports , 
                                                
534 Panel Report, Korea  – Dairy , para.  7.126 (fn  omitted). See also Appellate Body Report, Korea  – 
Dairy , para.  111. 
535 Appellate B ody Report, Korea  – Dairy , para.  111. 
536 Notification under Article  12.1(b) of the SA (21 March 2016 ), (Exhibits  JPN-12/IND -12), section 2, 
p. 2. 
537 Notification under Article  12.1(b) of the SA (21 March 2016 ), (Exhibits  JPN-12/IND -12), section 3, 
p. 2. 
538 Appellate Body Report, Korea  – Dairy , para.  109. (emphasis original)  WT/DS518/ R 
 
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  (iii) changes in the level of sales , (iv) production , (v) productivity , (vi) capacity utilization , 
(vii) profits and losses , and (viii) employment.  
7.362.   Article  4.2(b) also provides that a competent authority may not reach a determination that 
increased imports have caused or are threatening to cause serious injury to a domestic industry 
unless (i) the investigation demonstrates, on the basis of objective evidence, the existence of the 
causal link between increased imports of the product concerned  and the serious injury or threat 
thereof ; and (ii) when factors other than increased imports are causing injury to the domestic 
industry at the same time, the injury has not been attributed to increased imports.  
7.363.   We note that India's notification of 21 Mar ch 2016 explicitly refers to the competent 
authority 's determination that the domestic industry suffered serious injury caused by i ncreased 
imports of the product under consideration into India,  and that increased imports of the product 
under consideration  also threaten ed to cause serious injury to the domestic industry. We consider 
that the information contained in this notification fulfils the requirement in Article  12.2 with respect 
to providing all pertinent information regarding the evidence of serious  injury or threat ther eof 
caused by increased imports. A Member who makes a notification  under Articles  12.1 (b) and (c) 
may provide the Committee on Safeguards with pertinent information with respect to the 
determination of the existence of a causal link between increased imports of the product concerned 
and serious injury or threat thereof  and with respect to a non -attribution analysis . We find nothing 
in Article  12.2, however, that requires such information to be provided in a notification  to the 
Committ ee on Safeguards under Articles  12.1 (b) and (c). 
7.364.   With respect to the description of the product involved , Japan argues that India failed to 
identify the products excluded from the general definition of the "product under consideration" , at 
least with resp ect to API grade steel . 
7.365.   Section 5 of India's notification of 21 March 2016 is entitled "Product Involved" and notes:  
The Product Under Consideration (PUC) is "Hot-rolled flat products of non -alloy and 
other alloy steel in coils of a width of 600 mm or more"  and is classified under 
Chapter  72 of the Customs Tariff Act, 1975 under tari ff heading 7208 and tariff 
item 72253090.539 
7.366.   However, API grade steel was excluded from the scope of the product under consideration 
from the beginning of the investigation.540 The Final Findings explicitly note that API grade steel is 
"not included in the scope of the product under consideration".541 
7.367.   The precise description of the product involved is among the pertinent information that 
Members must provide in making a notificatio n to the Committee on Safeguards under 
Articles  12.1 (b) and (c). This involves not only identifying the product at issue, but also the specific 
sub-products that are excluded from the definition of the product concerned. By not indicating the 
products tha t were excluded from the scope of the investigation, India failed to provide the 
Committee on Safeguards with a  precise description of the product involved . 
7.368.   With respect to the description of the proposed measure , Japan argues that India failed to 
mention that any anti -dumping duty paid would  be deducted from the safeguard duty rates listed  
and that the safeguard duty would not be imposed on the subject goods imported at or above the 
Minimum Import Price approved in February 2016.  
7.369.   Section  6 of India's notification of 21 March 2016 is entitled "Precise Description of the 
Proposed Measure" and states : 
DG Safeguards, the competent authority, has recommended to impose safeguard duty 
at the rate of 20% ad valorem  for the first year, 18% ad valorem  for the second year 
(for first 6 -months), 15% ad valorem for second year (for next 6 -months) and 10% ad 
                                                
539 Notification under Article  12.1(b) of the SA (21 March 2016 ), (Exhibits  JPN-12/IND -12), section 5, 
p. 4. (emphasis added)  
540 Notice of Initiation, (Exhibits  JPN-4/IND -4), para.  3, p. 6. 
541 Final Findings, (Exhibits JPN-11/IND -11), para.  2, p. 119. 
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  valorem for third year (for  6-months) on imports of Hot-rolled flat products of 
non-alloy and other alloy steel in coils of a width of 600 mm or more .542 
7.370.   The 21 March notification at issue does not mention that anti -dumping duties would be 
deducted from the safeguard duty rates. In contrast, the Final Findings of the Indian competent 
authority explicitly state that for each of the periods, the corresponding safeguard du ty 
recommended would be "minus Anti -dumping duty, if any".543 
7.371.   The 21 March notification also fails to mention anything about subject goods imported at or 
above Minimum Import Price s. The fact that the proposed safeguard duties  should not be imposed 
on subjec t goods imported at or above Minimum Import Price s is not mentioned in the Final Findings 
of the Indian competent authority either. Accordingly, this particular aspect does not seem to be 
part of the measure as recommended  in the Final Findings. The notifi cation of the definitive 
safeguard measure, however, does mention that:  
The safeguard duty shall not be imposed on the subject goods which are imported at or 
above the Minimum Import Price in terms of the notification of the Government of India 
in the Mini stry of Commerce and Industry (Department of Commerce) (Directorate 
General of Foreign Trade) No. 38/2015 -2020, dated the 5th February,  2016 published 
in the Gazette of India (Extraordinary), Part II, Sectio n 3, Sub -section (ii) vide S.O . 
391(E) dated the 5th February, 2016.544 
7.372.   Article  12.2 requires a Member proposing to apply a safeguard measure to provide the 
Committee on Safeguards with all pertinent information, including at a minimum the items listed in 
the provision. As noted above, t he panel in Korea – Dairy  referred to the role that notifications under 
Article  12 play in inform ing Members of the circumstances of the case . This allows any interested 
Member to decide whether to request consultations with the importing country that may lead to 
modification of the proposed measures or compensation .545 As noted by Article  12.1, notifications to 
the Committee on Safeguards  must be made immediately upon making a finding of serious injury 
or threat thereof caused by increased imports  or upon taking a decision to apply a safeguard 
measure . Notifications must at the same time be complete, in the sense of providing all the pertinent 
information required by Article  12.2, and timely, to allow interested Members adequate opportunity 
to engage in consultations to review  the information provided, to exchange  views on the measure , 
and to exercise their rights  under the Agreement on Safeguards.  
7.373.   As noted above, the fact that anti-dumping duties should be deducted from the respective 
safeguard duties is  included in the proposed measure as described in the 15 March Final Findings  of 
the Indian competent authority . This aspect should in our view be part of the precise description of 
the proposed measure, as it would affect the manner in which the safeguard  measure would apply 
to different imports of the product at issue.  
7.374.   In contrast, there is no evidence that the measure as proposed in the Final Findings of the 
Indian competent authority  contemplated that the safeguard duties sh ould not be imposed on 
subjec t goods imported at or above the set Minimum Import Prices. The first mention on record to 
the exclusion of safeguard duties from goods imported at or above Minimum Import Prices is 
contained in the Ministry of Finance 's notification imposing a definit ive safeguard measure, dated 
29 March 2016. Accordingly, it does not seem unreasonable to us that India's notification of 
21 March 2016 did not include a mention to this aspect. Indeed, the desirability of a detailed 
notification that provides as much informat ion as possible must be balanced against the requirement 
for a timely notification that, while providing all pertinent information required by Article  12.2, allows 
interested Members adequate opportunity to exercise their rights  under the Agreement on 
Safeguards.  
                                                
542 Notification under Article  12.1(b) of the SA (21 March 2016 ), (Exhibits  JPN-12/IND -12), section 6, 
p. 4. (emphasis original)  
543 Final Findings, (Exhibits JPN-11/IND -11), section R(a), p.  209. 
544 Notification imposing a definitive safeguard measure, (Exhibits  JPN-13/IND -13), para.  2, pp.  6-7. 
545 Panel Report, Korea  – Dairy , para.  7.126; Appellate Body Report, Korea  – Dairy , para.  111. WT/DS518/ R 
 
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  7.375.   Accordingly, we consider that, by not indicating that any anti-dumping duties would be 
deducted from the safeguard duties imposed, India failed to provide the Committee on Safeguards 
with a  precise description of the proposed measure . 
7.376.   With respect to the proposed date of introduction of the measure , Japan argues that India 
failed to identify a precise date , by indicating only that the safeguard measure would be applicable 
from the date of issue of the respective notification by the Department of Rev enue, Ministry of 
Finance . 
7.377.   Section  8 of India's notification of 21 March 2016 is entitled " Proposed date of Imposition of 
Safeguard Measure" and states:  
The safeguard measure will be applicable from the date of issue of notification in this 
regard by the D epartment of Revenue, Ministry of Finance, Government of India.546 
7.378.   A "date" can be defined as "[t]he day of the month; the day of the month, the month, or 
the year of an event; the time or period at which something happened or the time at which 
something is to happen".547 On its face, the notification does not identify a date, expressed in terms 
of a day of the month, the month and the year, from which the safeguard measure would apply. It 
does, however, refer to an event, namely the date of issu ance of the res pective notification by the 
Department of Revenue of India 's Ministry of Finance.  
7.379.   Article  12.2 of the Agreement on Safeguards  requires the Member making a notification to 
the Committee on Safeguards under Articles  12.1 (b) and (c) to provide all pertinent information, 
including the proposed date of introduction of the proposed safeguard measure.  In our view, it would 
be desirable that a notification provide the date of introduction of the measure in a manner as precise 
as possible. In some cases, however, it may not be possible to identify the precise day of the month, 
the month, and the year, in which the measure will be introduced, as the introduction of the measure 
may depend on some condition, such as a notification, a publication in an official journal,  or even an 
approval by some other authority. In these cases, the date of introduction of the proposed safeguard 
measure may be expressed with reference to the act or event that must occur for the measure to 
enter into effect. Here too the desirability of a more precise date, which may only become known 
once the Department of Revenue adopts the final decision , must be balanced against the 
requirement for a timely notification that allows interested Members adequate opportunity to 
exercise their rights  under  the Agreement on Safeguards.  
7.380.   In any event, we note that, in contrast with the description of the product involved and of 
the proposed measure, Article  12.2 does not require a precise  date of introduction . We are 
unconvinced that by referring to the date of issu ance of the notification by the Department of 
Revenue of India 's Ministry of Finance, India failed to provide the Committee on Safeguards a  
proposed date of introduction  of the proposed measure.  
7.13.3.3   Conclu sion 
7.381.   For the reasons explained above, we conclude  that India acted inconsistently  with 
Article  12.2 of the Agreement on Safeguards  by failing to provide the Committee on Safeguards with 
(i) a precise description of the product involved , and (ii) a precise description of the proposed 
measure . We a lso conclude that Japan has failed to demonstrate that India acted inconsistently  with 
Article  12.2 by failing to provide the Committee on Safeguards with pertinent information with 
respect to (i) the determination of the existence of a causal link between  increased imports of the 
product concerned and serious injury or threat thereof and with respect to a non -attribution analysis ; 
and (ii) a proposed date of introduction of the proposed measure.  
                                                
546 Notification under Article  12.1(b) of the SA (21 March 2016 ), (Exhibits  JPN-12/IND -12), section 8, 
p. 4. 
547 Shorter  Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
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  7.13.4   Japan 's claim  under Article  12.3 of the Agreement on Safeguards  and Article  XIX:2 
of the GATT  1994  
7.13.4.1   Introduction  
7.382.   Japan claims that India acted inconsistently with Article  12.3 of the Agreement on 
Safeguards  and Article  XIX:2 of the GATT 1994. In Japan 's view, in its notification to the Co mmittee 
on Safeguards  made on 21 March 2016, India failed to provide Japan with an opportunity for prior 
consultations in respect of the proposed measure, and in particular with sufficient time and sufficient 
information to allow for the possibility for a meaningful exchange of views .548 
7.383.   Japan argues that India failed to provide any opportunity  for prior consultations since in its 
21 March notification it did not indicate the proposed date of introduction of the measure , which 
made it impossible for Japan to organize itself with a view to have consultations with India with 
regard to the safeguard measure at issue.549 
7.384.   Japan also argues that India failed to provide Japan with an adequate opportunity for 
consultations since it failed to provide exporting Members wi th sufficient time and sufficient 
information to allow for the possibility for a meaningful exchange on the issues identified.550 In 
Japan 's view, India failed to provide Japan with sufficient time  to allow for a meaningful exchange 
of views , because : (i) India notified  the Committee on Safeguards eight days before the application 
of the safeguard measure , which did not provide Japan enough time to prepare itself for 
consultations with India ; and (ii) Japan could not anticipate that the measure would be int roduced 
so soon after the 21 March notification since India did not indicate the proposed date of introduction 
of the measure.551 Japan also states that India failed to provide Japan with sufficient information  to 
allow for the possibility of meaningful prio r consultations , because  it did not provide all pertinent 
information required by Article  12.2.552 
7.385.   In response, India submits that it has complied with the requirements in Article  12.3 of the 
Agreement on Safeguards and Article  XIX:2 of the GATT 1994.  Accord ing to India, its notification to 
the Committee on Safeguards  made on 21 March 2016 provided all "pertinent information " as 
required by Article  12.2. India also argues that the notification provided Japan a n eight-day advance 
period for consultation s.553 
7.386.   The parties do not disagree on the relevant facts.  
7.387.   The Final Findings of the Indian competent authority for the safeguard investigation were 
published in The Gazette of India  on 15 March 2016.554 On 21 March 2016, India notified the 
Committee on Safeguards of the findings of serious injury or threat thereof caused by increased 
imports  pursuant to Article  12.1( b) of the Agreement on Safeguards .555 
7.388.   On 29 March 2016, Notification No.  1/2016 from Customs, whereby the definitive safeguard 
measure was imposed, was publi shed in The Gazette of India.556 
7.389.   In other words, India notified the Committee on Safeguards  of the proposed measure eight 
days before the safeguard measure entered in force.  
7.390.   The relevant facts with respect to the content of India 's notification to the Committee on 
Safeguards  of 21 March 2016 have been discussed in the preceding section.  
                                                
548 Japan's  first written submission, paras.  480 and 492 -502; second written submission, 
paras.  263-266. 
549 Japan's  first written submission, para.  496. 
550 Japan's  first written submission, para.  497. 
551 Japan's  first written submission, paras.  498-499; second written submission, para.  265; and 
responses to Panel question No. 135, para.  87-89, and No. 136, p aras. 90-91. 
552 Japan's  first written submission, paras.  500-501; second written submission, paras.  263-264. 
553 India's  first written submission, para.  335. 
554 Final Findings, (Exhibits JPN-11/IND -11). 
555 Notification under Article  12.1(b) of the SA (21 March 2016), (Exhibits  JPN-12/IND -12). 
556 Notification imposing a definitive safeguard measure , (Exhibits  JPN-13/IND -13), pp.  6-7. WT/DS518/ R 
 
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  7.13.4.2   Evaluation by the Panel  
7.391.   Article  12.3 of the Agreement on Safeguards  provides that:  
A Member proposing to apply or extend a safeguard measure shall provide adequate 
oppor tunity for prior consultations with those Members having a substantial interest as 
exporters of the product concerned, with a view to, inter alia, reviewing the information 
provided under paragraph  2, exchanging views on the measure and reaching an 
underst anding on ways to achieve the objective set out in paragraph  1 of Article  8. 
7.392.   In turn, Article  XIX:2 of the GATT 1994 in relevant part reads as follows:  
Before any [Member]  shall take action pursuant  to the provisions of paragraph  1 of this 
Article, it shal l give notice in writing to the [Members acting jointly]  as far in advance 
as may be practicable and shall afford the [Members acting jointly]  and those 
[Members] having a substantial interest as exporters of the product concerned an 
opportunity to consult  with it in respect of the proposed action . 
7.393.   As noted by the Appellate Body in US – Wheat Gluten , Article  12.3 of the Agreement on 
Safeguards  requires a Member proposing to apply a safeguard measure to provide exporting 
Members with sufficient information and time to allow for the possibility, through consultations, for 
a meaningful exchange on the issues identified. Accordingly, Article  12.3 requires that information 
on a proposed measure be provided in advance of the consultations, so that the consultations can 
adequately address that measure.  In turn, Article  12.2 identifies the information that is needed to 
enable meaningful consultations to occur under Article  12.3.557 
7.394.   The Panel has already found that, in its notification made on 21 March 2016, India failed to 
provide the Committee on Safeguards with  a precise description of the product involved  and a precise 
description of the proposed measure . To the extent that India failed to provide all pertinent 
information as required by Article  12.2 of the Agreement on Safeguards  with respect to such aspects , 
India also failed to provide information that was needed to enable meaningful consultations to o ccur 
under Article  12.3. 
7.13.4.3   Conclu sion 
7.395.   For the reasons explained above, we conclude  that India acted inconsistently  with 
Article  12.3 of the Agreement on Safeguards  by failing to provide Japan,  and other Members with a 
substantial export interest in the product subject to the proposed safeguard measure, with adequate 
opportunity for prior consultations  with a view to reviewing all pertinent information within the 
meaning of Article  12.2, which in cludes a precise description of the product involved  and a precise 
description of the proposed measure . 
7.14  Whether India acted inconsistently with Article  II:1(b) of the GATT 1994  
7.14.1   Introduction  
7.396.   Japan claims  that India acted inconsistently with  Article  II:1(b) of the GATT 1994  because, 
through the measure at issue, it imposed "other duties or charges"  in terms  of the second  sentence 
of Article  II:1(b).558 
7.397.   Japan  argues  that the duties resulting from the safeguard measure at issue constitute "other 
duties or charges" within the meaning of the second sentence of Article  II:1(b) of the GATT  1994, 
rather than "ordinary customs duties" under the first sentence, because they are of an "exceptional" 
or "extraordinary" nature and applied f or a limited period of time in addition to the M FN applied 
tariff.559 Japan also submits  that the se duties are not recorded in India 's Schedul e of Concessions in 
                                                
557 Appellate Body Report, US – Wheat Gluten , paras.  136-137. 
558 Japan's  first written submission, para.  503. 
559 Japan's  first written s ubmission, paras.  512-519 (referring to Panel Report, Dominican Republic – 
Safeguard Measures , paras.  7.86-7.87); second written submission, para.  269. 
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  the column "other duties or charges"  and they do  not correspond to duties or charges that India 
applied at the date of entry into force of the GATT 1994 or was  required to apply as a direct and 
mandatory consequence of legislation in force on that date , and therefore the duties resulting from 
the safeguard measure at issue are inconsistent with Article II:1(b) of the GATT 1994.560 
7.398.   India replies that the measure at issue was imposed in accordance with Article  XIX of the 
GATT  1994, and therefore the obligation under Article  II:1(b) ipso facto  gets suspended and the 
question of its violation does not arise .561 India also disagrees with Japan that under Article  II:1(b) 
the measure should have been recorded in India 's Schedule of Concessions in the column "other 
duties or charges".562 
7.14.2   Article  II:1(b) of the GATT 1994  
7.399.   We recall that Article  II:1(b) of the GATT 199 4 provides as follows:  
The products described in Part I of the Schedule relating to any [Member] , which are 
the products of te rritories of other [Members] , shall, on their importation into the 
territory to which the Schedule relates, and subject to the terms, conditions or 
qualifications set forth in that Schedule, be exempt from ordinary customs duties in 
excess of those set forth and provided therein . Such products shall also be exempt from 
all other duties or charges of any kind imposed on or in connection with the importation 
in excess of those imposed on the date of this Agreement or those directly and 
mandatorily required to be imposed thereafter by le gislation in force in the importing 
territory on that date.  
7.400.   The Understanding o n the Interpretation of Article  II:1(b) of the GATT 1994 provides that:  
1. In order to ensure transparency of the legal rights and obligations deriving  from 
paragraph  1(b) of Article II, the nature and level of any "other duties or charges" levied 
on bound tariff items, as referred to in that provision, shall be recorded in the Schedules 
of concessions annexed to GATT 1994 against the tariff item to which they apply. It is 
unders tood that such recording does not change the legal character of  "other duties or 
charges".  
2. The date as of which "other duties or charges" are bound, for the purposes 
of Article  II, shall be 15  April 1994. "Other duties or charges" shall therefore be 
recorded in the Schedules at the levels applying on this date …  
3. "Other duties or charges" shall be recorded in respect of all tariff bindings.  
… 
7. "Other duties or c harges" omitted from a Schedule at the time of deposit of the 
instrument incorporating the  Schedule in question into GATT 1994 with, until the date 
of entry into force of the WTO Agreement, the Director -General to the 
CONTRACTING  PARTIES to GATT 1947 or, thereafter, with the Director -General of the 
WTO, shall not subsequently be added to it and  any "other duty or charge" recorded at 
a level lower than that prevailing on the applicable date shall not be restored to that 
level unless such additions or changes are made within six months of the date of  deposit 
of the instrument.  
7.14.3   Evaluation by the Pa nel 
7.401.   Japan alleges  that India acted inconsistently with  the second sentence of Article  II:1(b) of 
the GATT  1994. This sentence provi des that imported goods shall  "be exempt from all other duties 
or charges of any kind imposed on or in connection with the im portation" if such duties or charges 
of any kind exceed those applied on the date of entry into force of the GATT 1994 or "those directly 
                                                
560 Japan's  first written submission, para.  520; second written submission, para.  270. 
561 India's  first written submission, para.  344. 
562 India's  first written submission, para.  350. WT/DS518/ R 
 
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  and mandatorily required to be imposed thereafter by legislation in force in the importing territory 
on that date".  
7.402.   We have already concluded that the safeguard measure  at issue resulted in duties levied in 
customs  on the importation of the products concerned into the territory of India.563 We have also 
concluded that such duties are not part of the measures listed in Article  II:2 of the GATT 1994 , which 
are carved out from the obligations in Article  II.564 We have indicated that the duties resulting from 
the measure at issue do not constitute " ordinary customs duties " for the purposes of 
Article  II:1(b) .565 Accordingly, th e duties resulting from the measure at issue are "other duties or 
charges … imposed on or in connection with the importation ", within the meaning of Article  II:1(b) 
of the GATT  1994.566 
7.403.   Having found that the measure at issue resulted in "other duties or char ges" in the sense of 
Article  II:1(b) of the GATT 1994, the Panel must consider whether the se duties were in excess of 
the other duties or charges imposed on the date of the GATT  1994 or "those directly or mandatorily 
required to be imposed thereafter by th e legislation in force in the importing territory on that date", 
as they were recorded in India's Schedule of Concessions.  In this connection, we note that pursuant 
to paragraphs 1, 2, 3, 4 and 7 of the Understanding o n the Interpretation of Article  II:1(b ) of the 
GATT  1994, Members were required to record in their Schedules of Concessions any other duties 
and charges applied in respect of  all bound tariff lines.  
7.404.   In this respect, the panel in Dominican Republic – Import and Sale of Cigarettes  noted that: 
Reading Article  II:1(b) together with paragraphs  1, 2, 7 and 4 of the Understanding as 
context, the Panel considers th at the obligation under Article  II:1(b), second sentence 
is for Members to record in their Schedules, within six months of the date of dep osit 
of the instrument, all ODCs [other duties and charges] as applied on 15  April 1994 
unless those levels breach previous bound levels of ODCs. In case any Member did not 
record the ODCs in the Schedule within six months of the date of deposit of the sai d 
instrument, the right to record it in the Schedule and to invoke it expired after 
six months. In the context of  the recording requirements as prescribed in the 
Unders tanding, the meaning of  Article  II:1(b), second sentence is specifically that 
imported p roducts shall be exempted from all "other duties or charges" of any kinds in 
excess of those as validly recorded in the Schedule of the Member concerned .567 
7.405.   In other words, a  Member that maintains or introduces  an "other duty or charge" without 
having record ed it in the appropriate column in its Schedule of Concessions act s in a manner 
inconsistent  with the second sentence of Article  II:1(b) of the GATT 1994.  
7.406.   In the present  case, it is a fact undisputed by the parties that the column corresponding to 
other du ties or charges in India's Schedule of Concessions in relation to the products concerned  does 
not contain any record.568 In other words, India did not record in its Schedule of Concessions any 
duty corresponding to "other  duties or charges" within the six mo nths following the date on which 
the instrument was deposited. The Panel recalls its finding that the duties resulting from the measure 
at issue form part of  other duties or charges and notes that India applied these duties during the 
time the safeguard me asure was in force. In this respect, therefore, by applying on imports  a duty 
that constitutes an "other  duty or charge ", India is acting inconsistently with its obligations under 
the second sentence o f Article  II:1(b) of the GATT  1994.  
                                                
563 See section 7.4.2 above.  
564 See section 7.4.3.1 above.  
565 See section 7.4.2 above.  
566 See section 7.4.3.1  above.  
567 Panel Report, Dominican Republic  – Import and Sale of Cigarettes , para. 7.88 (emphasis original; 
fn omitted). A similar conclusion was reached by the panel in Chile – Price Band System , para. 7.107.  
568 Excerpt from India's Schedule of Concessions with respect to customs heading 7208, 
(Exhibit IND-21); India's  opening statement at the first meeting of the Panel, para.  44. See also Japan 's first 
written submission, para. 520; second written subm ission, para. 270; opening statement at the first meeting of 
the Panel, para.  113; and response to Panel question No. 11, para.  4. 
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  7.407.   As noted above, India has argued that, when a measure is applied under Article  XIX of the 
GATT 1994, "there can be no question of violation" of Article  II:1(b) of the GATT 1994.569 
7.408.   Although Article  XIX of the GATT 1994 allows WTO M embers to suspend obligatio ns incurred 
by a Member under the GATT 1994, such suspension would only be valid when the safeguard 
measure at issue has not been found to be inconsistent with the respective Member 's obligations in 
Article  XIX of the GATT 1994 and the Agreement on Safegua rds. 
7.409.   Since we have already concluded that the measure at issue is inconsistent with 
India's obligations under Article  XIX of the GATT 1994 and certain provisions of the Agreement on 
Safeguards, the measure at issue did not result in a valid suspension of I ndia's obligation under 
Article  II:1(b), second sentence, of the GATT 1994.  
7.14.4   Conclusion  
7.410.   For the reasons explained above, we conclude that India has acted inconsistently with its 
obligations under  the second sentence of Article  II:1(b) of the GATT  1994.  
7.15  Whet her India acted inconsistently with Article  I:1 of the GATT 1994  
7.15.1   Introduction  
7.411.   Japan claims that India acted inconsistently with  Article  I:1 of the GATT 1994  when it did 
not apply t he measure at issue to  the products originating in certain countries . According to Japan, 
this constitutes an advantage that was not accorded immediately and unconditionally to like products 
originating in other WTO Members, including Japan.570 
7.412.   India responds that Article  XIX of the GATT 1994 allows a Member to suspend oblig ations 
incurred under the GATT 1994, if the conditions in Article  XIX are met. India also notes that, although 
the measure at issue does not apply to imports from developing countries (with the exception of 
China and Ukraine), Article  9 of the Agreement on  Safeguards provides for an exception from the 
MFN principle contained in Article  I:1 of the GATT 1994.571 
7.15.2   Article  I:1 of the GATT 1994  
7.413.   We recall that Article  I:1 of the GATT 1994 provides as follows:  
With respect to customs duties and charges of any kind imposed on or in connection 
with importation or exportation or imposed on the international transfer of payments 
for imports or exports, and with respect to the method of levying such duties and 
charge s, and with respect to all rules and formalities in connection with importation and 
exportation, and with respect to all matters referred to in paragraphs 2 and 4 of 
Article  III,* any advantage, favour, privilege or immunity granted by any [Member] to 
any product originating in or destined for any other country shall be accorded 
immediately and unconditionally to the like product originating in or destined for the 
territories of all other [Members].  
7.15.3   Evaluation by the Panel  
7.414.   Japan alleges  that India acted inc onsistently with  Article  I:1 of the GATT  1994. According to 
this provision, any advantage  granted by a Member to product s from any other country must be 
accorded immediately and unconditionally to the like product s originating in all other Members.  
7.415.   The App ellate Body has indicated that the following e lements must be demonstrated to 
establish an inconsistency with Article  I:1 of the GATT  1994 (i) that the measure at issue falls within 
the scope of application of Article  I:1; (ii) that the importe d products a t issue are "like"  products 
                                                
569 India's  first written submission, para.  337. 
570 Japan's  first written submission, paras.  531-535; second written submission,  paras.  273-275. 
571 India's  first written submission, paras.  342-343. Japan does not challenge the consistency of the 
measure at issue with Article  9 of the Agreement on Safeguards.  WT/DS518/ R 
 
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  within the meaning of Article  I:1; (iii) that the measure at issue confers an "advantage,  favour, 
privilege, or immunity"  on a product originating in the territory of any country ; and (iv)  that the 
advant age so accorded has not been extended "immediately"  and "unconditionally"  to the "like"  
products orig inating in the territory of all Members. Thus, if a Member grants any advantage to any 
product originating in the territory of any other country, such advantage mu st be accorded 
"immediately and unconditionally"  to like products orig inating from all other Members.572 
7.416.   With respect to the first element, we have already concluded that the duties resulting from 
the safeguard measure at issue were duties or charges imposed on the importa tion of products into 
the territory of India. Accordingly , they fall within the scope of application of Article  I:1. 
7.417.   With respect to the second element, we have already noted that t he Ministry of Finance 
notification of 29 March  2016, which imposed the def initive safeguard measure, provided that:  
Nothing contained in this notification shall apply to imports of subject g oods from 
countries notified as developing countries under clause (a) of sub -section (6) of section 
8B of the Customs Tariff Act, other than  [the] People 's Republic of China and Ukraine.573 
7.418.   Notification  No. 19/2016 published by the Ministry of Finance on 5 February 2016  contains 
a list of 132 developing countries which are in principle exempted from safeguard duties pursuant 
to Section 8B of the  Customs Tariff Act, 1975 .574 
7.419.   In previous cases, panels have found that when origin is the sole criterion distinguishing the 
products, it is unnecessary to establish the likeness of the relevant products in terms of the 
traditional criteria.575 In the present case, the measure at issue differentiates between (i) the 
treatment granted to the subject g oods originating from certain developing countries listed in 
Notification  No. 19/2016 ; and (ii) the treatment granted to the subject goods from all other origins, 
including developed countries, China , and Ukraine . Because the sole criterion differentiating what 
are essentially the same subject goods is the origin, the relevant products may be considered to be 
"like"  products within the meaning of Article  I:1. 
7.420.   With re spect to the third element, the measure at issue exempted from the application of 
the resulting duties imports of the subject products originating in those developing countries listed 
in Notification  No. 19/2016 (with the exception of China and Ukraine ). This exemption constitutes 
the benefit or advantage conferred by the measure at issue . 
7.421.   With respect to the fourth element, the exemption granted to the subject g oods imported 
from the developing countries listed in Notification  No. 19/2016 was not extend ed to the like subject 
products orig inating in the territory of all WTO Members . Therefore, it was also not extended 
"immediately"  and "unconditionally".  
7.422.   India has argued that " Article  9 [of the Agreement on Safeguards] provides for exceptions 
or waivers [ from the] M FN principle".576 It has also indicated that, when a measure is applied under 
Article  XIX of the GATT 1994, "there can be no question of violation" of Article  I:1 of the 
GATT  1994.577 
7.423.   Paragraph 1 of Article  9 of the Agreement on Safeguards states th at: 
Safeguard measures shall not be applied against a product originating in a developing 
country Member as long as its share of imports of the product concerned in the 
importing Member does not exceed 3  per cent, provided that developing country 
                                                
572 Appellate Body Reports, EC – Seal Products , para.  5.86. 
573 Notification imposing a definitive safeguard measure, (Exhibits  JPN-13/IND -13), p.  7. 
574 Notification No. 19/2016 -Customs  (5 February 2016 ), (Exhibits JPN -3/IND -3). 
575 See, for example, Panel Report, US – Poultry (China) , para.  7.427.  
576 India's  first writte n submission, para.  342. 
577 India's  first written submission, para.  337. 
 WT/DS518/ R 
 
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  Members w ith less than 3  per cent import share collectively account for not more than 
9 per cent of total imports of the product concerned.578 
7.424.   Conversely, paragraph 2 of Article  2 of the Agreement on Safeguards provides that 
"[s]afeguard measures shall be applied to a product being imported irrespective of its source ". 
7.425.   Accordingly, the provision of Article  9.1 contains at the same time an obligation and an 
exception. In terms of the obligation, a Member applying a safeguard measure must exclude 
developing countries ex porting less than the de minimis  level provided in Article  9.1.579 Article  9.1 
also contains an exception from the rule that safeguard measures should be applied in a 
non-discriminatory manner contained in Article  2.2 of the Agreement on Safeguards and from the 
MFN rule in Article  I:1 of the GATT 1994.  
7.426.   For the purpose of this dispute, we note that Japan has not raised a claim that the measure 
at issue was applied in a manner inconsistent with India 's obligations under Article  9.1 of the 
Agreement on Safeguards.  
7.427.   Nevertheless, India has suggested that Article  9.1 is an exemption from any discriminatory 
application of the safeguard measure at issue. Article  9.1 of the Agreement on Safeguards, however, 
can only operate as a valid e xception for any discriminatory treatment of imports when the safeguard 
measure at issue has not been found to be inconsistent with the obligations in Article  XIX of the 
GATT 1994 and the Agreement on Safeguards. Similarly, although Article  XIX of the GATT  1994 
allows WTO Members to suspend obligations incurred by a Member under the GATT  1994, such 
suspension would only be valid when the safeguard measure at issue has not been found to be 
inconsistent with the obligations in Article  XIX of the GATT 1994 and  the Agreement on Safeguards.  
7.428.   Since we have already concluded that the measure at issue is inconsistent with 
India's obligations under Article  XIX of the GATT 1994 and certain provisions of the Agreement on 
Safeguards, the discriminatory application of the  safeguard measure cannot be excused by 
Article  9.1. Likewise, the measure at issue did not result in a valid suspension of India 's obligation 
under Article  I:1 of the GATT 1994.  
7.15.4   Conclusion  
7.429.   For the reasons explained above, we conclude that India has acted inconsistently with its 
obligations under  Article  I:1 of the GATT  1994.  The discriminatory application of the measure at 
issue cannot be excused by Article  9.1 of the Agreement on Safeguards.  
7.16  Special and differential treatment  
7.430.   Pursuant to Article  12.11 of the DSU:  
[W]here one or more of the parties is a developing country Member, the panel 's report 
shall explicitly indicate the form in which account has been taken of relevant provisions 
on differential and more -favourable treatment for developing c ountry Members that 
form part of the covered agreements which have been raised by the developing country 
Member in the course of the dispute settlement procedures.  
7.431.   Article  12.10 of the DSU also provides the following:  
[I]n examining a complaint against a developing country Member, the panel shall accord 
sufficient time for the developing country Member to prepar e and present its 
argumentation . 
7.432.   In the present proceedings, and except for arguments concerning Article  9 of the Agreement 
on Safeguards which the  Panel has already  noted , none of the parties has referred to any provision 
in the WTO Agreements on special and differential tr eatment for developing country Members . In 
any event, when adopting and reviewing the timetable  for the proceedings, the Panel made sure 
                                                
578 Fn omitted.  
579 Appellate Body Report, US – Line Pipe , para.  132. WT/DS518/ R 
 
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  that all parties, including India as a developing country respondent, had sufficient time to prepare 
and submit their respective arguments.  The Panel found that n o other provisions on differential and 
more favourable treatment for developing count ry Members were relevant for the resolution of the 
matter in the dispute.  
8  CONCLUSIONS AND RECO MMENDATION  
8.1  Conclusions  
8.1.  For the reasons explained in this Report , the Panel concludes that the measure  at issue resulted 
in a suspension of obligations incurred by  India under the GATT 1994. This measure was adopted 
by India as a temporary emergency action designed to remedy  an alleged situation of serious injury 
to the domestic industry brought about by an increase in imports  of the subject products. W e 
accordingly  conclude  that the provisions of Article  XIX of the GATT 1994 and the Agreement on 
Safeguards are applicable to the examination of the claim s raised in the present dispute.  
8.2.  The Panel concludes that India has acted inconsistently with the following provisio ns: 
a. Article  XIX:1(a) of the GATT 1994 , by failing to demonstrate that the increase in imports 
of the product concerned into India occurred as a result of unforeseen developments  and 
the effect of relevant obligations of the GATT 1994 ; 
b. Articles  2.1 and 4.2(a) of the Agreement on Safeguards and Article  XIX:1 of the 
GATT  1994, in the determination on the increase in imports ; 
c. Articles  4.1(a), 4.1(b) , and 4.2(a) of the Agreement on Safeguards, w ith respect to the 
determination of serious injury and t he threat of serious injury;  
d. Article  4.2(b),  first and second sentences, of the Agreement on Safeguards, by failing to 
demonstrate the existence of a causal link between the increased imports and the alleged 
serious injury suffered by the domestic industry  and by failing to conduct a proper 
non-attribution analysis ; 
e. Articles  3.1 and 4.2(c) of the Agreement on Safeguards, by failing to provide reasoned 
conclusions on all pertinent issues of fact and law;  
f. Article  12.4 of the Agreement on Safeguards , by failin g to notify the Committee on 
Safeguards before  taking the provisional safeguard measure  at issue;  
g. Article  12.2 of the Agreement on Safeguards , by failing to provide the Committee on 
Safeguards with a  precise description of the product involved  and a precis e description of 
the proposed measure ;  
h. Article  12.3 of the Agreement on Safeguards , by failing to provide Japan,  and other 
Members with a substantial export interest in the product subject to the proposed 
safeguard measure, with adequate opportunity for prior consultations  with a view to 
reviewing all pertinent information ; 
i. Article  II:1(b), second sentence, of the GATT  1994, by imposing measures on the 
importation of products which constitute "other duties or charges", which were not 
recorded in its Sched ule of Concessions; and  
j. Article  I of the GATT  1994, by having failed to extend immediately and unconditionally to 
the products of all WTO Members certain advantages granted to products originating in 
some countries. The discriminatory application of the me asure at issue is not excused by 
Article  9.1 of the Agreement on Safeguards.  
8.3.  The Panel also concludes that Japan failed to demonstrate  that India acted inconsistently with 
the following provisions:  WT/DS518/ R 
 
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  a. Articles  2.1, 4.1(a), 4.1(b), 4.1(c) , 4.2(a), and 4.2(b) o f the Agreement on Safeguards 
and Article  XIX:1(a) of the GATT 1994 , and consequential ly Articles  3.1 and 4.2(c) of the 
Agreement on Safeguards , with respect to the determination of  the domestic industry; 
and 
b. Articles  12.1(a), (b) and (c) and 12.2 of the Agreement on Safeguards , with respect to 
the notifications to the Committee on Safeguards  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.  
8.4.  In light of the findings above, the Panel has exercised judicial economy with respect to the 
following claims:  
a. Japan 's consequential claim that  India acted inconsistently with Article  2.1 of the 
Agreement on Safeguards  and Article  XIX:1(a) of the GATT 1994  with regard to its 
assessment of the situation of the domestic industry;  
b. Japan 's consequential claim that India acted inconsistently with Articles  2.1 and 4.2(a) of 
the Agreement on Safeguards and Article  XIX:1(a) of the GATT 1994 with respect to its 
causation and non -attribution analyses ; 
c. Japan 's claims under Articles  3.1, 4.2(c), 5.1 , and 7.1 of the Agreement on Safeguards, 
and Japan 's consequential claim under Article  XIX:1(a) of the GATT 1994, with respect to 
the duration of the safeguard measure at issue and the level of the duties imposed;  and 
d. Japan 's consequential claim under Article  11.1(a) of the Agreement on Safeguards . 
8.5.  In accordance with Article  3.8 of the DSU, in cases when  there is an infringement of the 
obligations assumed under a covered agreement, the action  is considered prima facie  to constitute 
a case of nullification or impairment of benefits accruing under the agreement in question. In view 
of the foregoing , the Pan el concludes that, insofar as India has acted in a manner inconsistent with 
Article  XIX:1 of the GATT 1994  and several provisions of the Agreement on Safeguards , it has 
nullified or impaired benefits accruing to Japan under those  agreement s. 
8.2  Recommendation  
8.6.  Pursuant to Article  19.1 of the DSU, having found that India acted inconsistently with certain 
provisions of the GATT 1994  and the Agreement on Safeguards , we recommend that , to the extent  
that the measure continues to have any effects, India bring it into conformity with its obligations 
under th ose a greement s. 
 
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