WORLD TRADE  
ORGANIZATION   
G/SG/W/226 
5 October 2012 
 (12-5409) 
Committee on Safeguards Original:   English 
 
 
 
SYSTEMIC CONCERNS WITH CERTAIN  
SAFEGUARD PROCEEDINGS 
 
Joint Statement from Australia;  Canada;  the European Union;  Japan;  Korea;   
New Zealand;  Norway;  Separate Customs Territory of Taiwan, Penghu,  
Kinmen and Matsu;  Singapore;  and the United States 
 
 The following communication, dated 3 October 2012,  is being circulated  at the request of 
the Delegations of Australia;  Canada;  the European Union;  Japan;  Korea;  New Zealand;  Norway;  
Separate Customs Territory of Taiwan, Pengh u, Kinmen and Matsu;  Singapore;  and 
the United States.   
 
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  Over the last several years, the Committee on Safeguards (Committee) has engaged in 
thoughtful discussions regarding increasing the transp arency of Members' safeguard actions through 
improvements in notifications to the Committee and increased reporting of safeguard actions taken.  
We encourage the efforts that Members have made to increase the transparency of their safeguard 
regimes.  However, we continue to remain con cerned about on-going systemic issues relating to 
certain safeguard investigations, including procedural, transparen cy, and due process issues which 
have become apparent and/or been raised by Member s in the last several Committee meetings.  In this 
instance, we will highlight only a few concerns, but wa nt to emphasize that these are just examples of 
where there appears to be an emerging and serious disregard of multilateral rules.  
Imposition of Provisional Measures Without Clear Evidence 
 
 Article 6 of the Agreement on Safeguards allows Members to impose provisional measures 
"where delay would cause damage wh ich it would be difficult to repair ... pursuant to a preliminary 
determination that there is clear evidence that in creased imports have caused or are threatening to 
cause serious injury".  However,  the hastiness with which some Members have imposed provisional 
measures brings into question whether Members are making proper preliminar y determinations.  For 
example, in one recent investigation, the time be tween initiation of the inv estigation and imposition of 
provisional measures was four days, casting doubt on whether the authorities had really confirmed 
that there was "clear evidence" of serious inju ry, and otherwise disrup ting legitimate trade. 
 
 In another example, a Member terminated the provisional measure after being asked by 
another government organization within that Member 's government to re-examine the findings in its 
preliminary determination.  Although it is commend able that an error was recognized and corrected, 
the need for the correction casts doubt on whether the Member is taking sufficient care before 
adopting provisional measures. G/SG/W/226 
Page 2 
 
 
  Lack of Rationale and Consistency in the Data Examined During the Investigation  
 
 Procedural concerns also arise with many Members' safeguard practices where there is a lack of consistency in and explanation of  the rationale for the data used and the analysis undertaken in the 
determination of the existence of serious injury or threat of serious injury.  For example, in a recent 
Committee meeting, a Member described the use in an investigation of one specific timeline as the 
base year and indexed information in that timelin e to show trends in areas such as production and 
capacity utilization, but used a significantly shorte r comparison timeline for the loss of production and 
production hours lost. 
 
 Shifts in approaches whereby import and injury data for one period on a consistent basis, to 
using multiple periods depending on th e type of data presented in the petition and used to initiate the 
case, without meaningful explanation, present inconsis tencies in a Member's practice and may lead to 
the distortion of the factors being examined to determ ine the existence of serious  injury or threat of 
serious injury. 
 
"Suspension" of Previously Imposed Safeguard Measures 
 
 Some Members have begun a practice of "s uspending" safeguard measures that were 
previously imposed, rather than terminating the measu re.  This practice, which is not provided for in 
the Agreement on Safeguards, creates market uncer tainty and raises questions about the basis for 
"suspending" a safeguard measure.  If it is clear  that the domestic industry no longer requires the 
measure, then it would appear that the pr oper response would be to terminate it.   
 
 In one instance, a Member not only suspended the safeguard measure, but also extended it.  
The extension of a suspended measure appears to r un counter to Article 5.1 which states, "A Member 
shall apply safeguard measures only to the extent n ecessary to prevent or remedy serious injury and to 
facilitate adjustment".  
(Un)Timely Notifications to the Committee 
 
 Article 12.1 of the Agreement on Safeguards re quires that Members "immediately notify" the 
Committee when it initiates an investigation, makes a finding of serious injury or threat caused by 
increased imports, or decides to apply or extend a safeguard measure.  It does not appear that 
Members have always honoured this requirement.  Fo r example, for certain investigations, the gap 
between investigation and notification has been fourt een days or longer.  As has been pointed out by 
Members during the Committee meetings, such dela yed notifications may affect the ability of 
exporters and other interested parties to prepare and present evidence and views, and respond to the 
presentations of other parties as provided for in Article 3.1.   
 Unwarranted Safeguard Investigations 
  It appears that some Members have been conducting safeguard investigations without 
considering certain basic and essential requirement s.  In one example, the Member's competent 
authority recommended imposition of a safeguard measure without inquiring into the proper 
definition of domestic industry.  As a conseque nce, the Member relied upon assertions made in the 
petition rather than collecting the necessary data to examine the condition of the properly-defined 
domestic industry, resulting in an inadequate inves tigation.  The competent authority thus failed to 
base its recommendation on an assessment of whet her the domestic indus try producing the product 
like or directly competitive with the imported product was seriously injured.  In addition, the data 
submitted by the applicant for the improper domesti c industry, upon which the competent authority 
relied, was admittedly incomplete with respect to se veral of the injury factors.  Although, ultimately,  G/SG/W/226 
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  no measure was imposed when these deficiencies were discovered, the investigation unnecessarily 
subjected exporting Members' industries to avoidable costs and uncertainty. 
  As users of the safeguard instrument and/or  exporters, we have c oncerns regarding the 
operation of this instrument and urge Members to conduct their safeguard inv estigations and provide 
notifications in a manner consistent with their ob ligations under the Agreement on Safeguards.  As 
has been evident in past Committee meetings, th e concerns expressed regarding the conduct of 
safeguard proceedings include both developed and de veloping Members, and impact all Members.  
We urge all Members to take heed of these system ic concerns, and consider how they might improve 
upon them, to ensure that the rules of the Agreem ent on Safeguards are followed, so that interested 
parties can have adequate opportunity to better unde rstand the decision-making process and be able to 
fully participate in the investigatory process.  
 
  
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