G/L/1276  
G/SG/191  
 
31 October 2018  
(18-6823) Page: 1/5 
Council on Trade in Goods  
Committee on Safeguards   
 
REQUEST UNDER ARTICL E 13.1(E) OF THE AGR EEMENT ON SAFEGUARDS  
(REQUEST FROM THAILA ND) 
FACTUAL REPORT TO TH E COUNCIL FOR TRADE IN GOODS BY  
THE CHAIRPERSON OF T HE COMMITTEE ON SAFE GUARDS  
The following factual report is being submitted by the Chairperson of the Committee on Safeguards, 
Mr Hyouk Woo Kwon.  
 
_______________  
 
 
1  INTRODUCTION  
1.1  Procedural Background  
1.1.  On 15 March 2018, Thailand submitted a request pursuant to Article 13.1(e) of the Agreement 
on Safeguards ("SG Agreement") in relation to certain action t aken by Turkey. Thailand's request is 
contained in document G/L/1213/Rev.1 –G/SG/158/Rev.1, attached as Annex 1  to this report 
("the Request").  
1.2.  Article 13.1 of the SG Agreement provides, in relevant part, as follows:  
A Committee on Safeguards is hereby esta blished, under the authority of the Council 
for Trade in Goods, which shall be open to the participation of any Member indicating 
its wish to serve on it.  The Committee will have the following functions:  
[…] 
(e)    to review, at the request of the Member taking a safeguard measure, whether 
proposals to suspend concessions or other obligations are "substantially equivalent ", 
and report as appropriate to the Council for Trade in Goods;  
1.3.  The Committee on Safeguards ("the Committee") discussed this Request at its regular meeting 
held on 23 April 2018,1 at its informal meetings  held on 20 June 2018 and on 14 September 2018. 
Members also discussed this Request at the regular meeting of the Committee held on 
22 October  2018. At the meeting of 22 October, the chair  explained in informal mode his revised 
text and asked whether he could understand, on an ad referendum  basis, that Members had no more 
comments on the draft. He asked Members to inform him by close of business of 29 October 2018 
if any Members still had c omments. Having heard no more comments, the chair decided to submit 
this factual report to the Council on Trade in Goods under his own responsibility on 30 October  2018.  
1.2  Notifications by Thailand and Turkey  
1.4.  By way of background, the following is a brief ch ronology of the major notifications submitted 
by Thailand and Turkey relevant to the investigati on referred to in the Request.  
                                                
1 See G/SG/M/53 (see Annex 3) for the minutes of this meeting.  G/L/1276  • G/SG/191  
 
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  (a) On 31 January 2014 , Thailand submitted a notification2 informing the Committee  that it 
initiated an investigation on non alloy ho t rolled steel flat products in coils and not in coils  
("the subject product") on 30 January 2014.  
(b) On 27 May 2014, Thailand submitted a notification3 informing the Committee of the results 
of its preliminary determination before taking a provisional safeguard measure. It was 
confirmed in another notification4 submitted on 23 September 2014 that the provisional 
measure took effect on 7 June 2014. Turkey was not included in the list of developing  
countries exclude d from the provisional measure.  
(c) On 13 Ja nuary 2015 , Thailand submitted a notification5 informing the Committee that the 
competen t authority "has recommended imposing the safeguard duty for a period of three 
years starting from 7 June 2014, i.e., the date when the provisional measures took effect , 
until 6 June 2017." Turkey was not included in the list of developing countries excluded from 
the measure.  
(d) On 18 October 20 16, Thailand submitted a notification6 of a review pursuant to Article 7.2 
of the Agr eement on Safeguards regarding the extension o f the safeguard measure, and 
stated that "the notice of the initiation of the investigation was published … o n 3 October 
B.E. 2559 (2016)".  
(e) On 18 April 2017, Thailand submitted a notification7 of its proposal  to extend a safeguard 
measure.  
(f) On 20 April 2017,  Turkey notified8 its request f or consultations with Thailand.  
(g) On 19 June 2017, Thailand submitted a notification9 of its decision to extend a safeguard 
measure. The measure "would be effective from 7 June 2017 until 6 June 2020". Turkey was 
not inclu ded in the list of developing countries excluded from the measure.  
(h) On 3 August 2017, Turkey submitted a notification under Article 12.5 of the SG Agreement 
regarding its proposed suspension of concessions. (G/L/1183 –G/SG/N/12/TUR/5; Attached 
as Annex 2  to this report.)  
2  THAILAND'S REQUEST  
2.1.  In its Request, Thailand asks the Committee to "review whether the suspension of concessions 
or other obligations applied by Turkey is 'substantially equivalent'  as provided for in Article 8.2 of 
the Agreement on Safeguard s" and to "report its findings to the Council for Trade in Goods".10 
2.2.  The Request explains as follows:  
Thailand considers that the suspension of concessions and other obligations applied by 
Turkey is not substantially equivalent as provided for in Article 8. 2 of the Agreement on 
Safeguards considering that the substantially equivalent concessions should be 
calculated based on a 3 -year average of import value preceding the original measure 
where the level of concessions is not affected and where relevant facto rs of injury 
indicate that the domestic industry suffered from the surge in imports.  
                                                
2 G/SG/N/6/THA/4.  
3 G/SG/N/7/THA/3 –G/SG/N/11/THA/3.  
4 G/SG/N/7/THA/3 /Suppl.1 –G/SG/N/11/ THA/3 /Suppl.1 . 
5 G/SG/N/8/THA/3 –G/SG/N/10/THA/3 –G/SG/N/11/THA/4.  
6 G/SG/N/6/THA/4/Suppl.1 –G/SG/N/14/THA/3.  
7 G/SG/N/8/THA/3/Suppl.1 –G/SG/N/10/THA/3/Suppl.1.  
8 G/SG/143 . 
9 G/SG/N/8/THA/3/Suppl.2 –G/SG/N/10/THA/3/Suppl.2.  
10 G/L/1213/Rev.1 –G/SG/158/Rev.1, para . 7. G/L/1276  • G/SG/191  
 
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  3  VIEWS EXPRESSED  
3.1  Turkey  
3.1.  Turkey's statement made at the regular meeting of the Committee of 23 April 2018 is available 
in document G/SG/M/53 ( Annex 3 ). 
3.2.  Turkey also made the following points:  
• Article 13.1 (e) refers to "proposals". Since Turkey's measure is now already in effect, it is 
no longer a proposal, and so this item should not have been brought to the Committee to 
begin with.  
• The SG Agreement does not provide for any r ules on how to calculate the suspension level, 
and in fact Members have used different methodologies in the past.  
• One of the conditions for imposing a SG measure is that the increase of imports should be 
recent. If a SG measure were not imposed, one would expect that such recent level of import 
into that country would have continued. Thus, calculating the suspension based on  such level 
is reasonable.  
• If one studies past notification s by Member s on this issue , in almost all the notifications 
submitted to the  Committee in 2018, Members calculated their level of suspension based on 
their exports in the year preceding the year in which the original measure was imposed.  
3.2  Thailand  
3.3.  Thailand's statement made at the regular meeting of the Committee of 23 April 2018 is  
available in document G/SG/M/53 ( Annex 3 ). 
3.4.  Thailand also made the following points:  
• It reiterated its views made in the Request that the suspension of concessions and other 
obligations applied by Turkey is not substantially equivalent as provided for in Article 8.2 of 
the Agreement considering that the substantially equivalent concessions should be 
calculated based on a 3 -year average of import value preceding the original measure where 
the level of concessions is not affected, and not on a selected impor t value in 2013 where 
there was a maximum surge in imports before the initiation as alleged by Turkey.  
• The end time of this suspension, 4 September 2020, extended to after the plann ed duration 
of the measure, which was 6 June 2020.  
• Thailand 's participation  in this discussion is without prejudice to any of Thailand 's WTO 
rights, and in particular, its consideration of whether Turkey had the right to suspend 
concessions. In Thailand 's view, Turkey had no right to suspend concessions.  
• Thailand disagrees with T urkey's assertion that Thailand's Request is inappropriate as that 
provision pertains to "proposals". The title of Article 13 is "Surveillance". This indicates that 
the Committee is authorized to oversee all aspects related to the implementation of the SG 
Agreement, including requests for suspension of concessions.  
• Article 5 of the Agreement, which deals with the application of safeguard measures, 
establishes the general principle that the reference value for the measures taken in the 
course of safeguard pr oceedings is the average of imports in the last three representative 
years. Article 5.1 addresse s the situation of safeguard measures in the form of quantitative 
restrictions. A consistent interpretation of the SG Agreement requires that this principle also G/L/1276  • G/SG/191  
 
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  apply in the context of Article 8.2 of that Agreement.11 The WTO Appellate Body has made 
clear that the WTO treaty has to be read as a whole.  
• GATT Article XXVIII, which deals with modification of tariff schedules, provides relevant 
context. The general  structure of GATT Article XXVIII  appears to have been the model for 
Article 8.2 of the Agreement on Safeguards. Further, the GATT panel in Canada – Withdrawal 
of Tariff Concessions stated that "As a general principle, Article XXVIII negotiations had in 
the past been based on the most recent three -year period for which trade statistics were 
available". More recently the WTO panel in EU – Poultry (China)  observed that "the 
determination of which Members hold a principal or substantial supplying interest in t he 
concessions subject to renegotiations is to be made on the basis of the data preceding the 
initiation of the negotiations, and more specifically, the data for the last three years 
accompanying the notification which the importing Member circulates to in itiate the process".  
• Analysis of past similar notifications indicates that how Members made the calculation had 
not been uniform. In any event, the context provided by the SG Agreement and other 
provisions of the WTO Agreements make clear that a party seek ing to suspend concessions 
under Article 8.2 must base its proposed suspension on a three -year average of import value 
preceding the original measure.  
3.3  Other Members' Views  
3.5.  The views of othe r Members are summarized below:  
• A Member asked the Secretariat to c ompile information on how this issue of methodology of 
calculating the level of suspension was treated in past notifications made under Article 12.5 
of the SG Agreement. (See Annex 4.)  
• Regarding this compilation, one Member wished to make it clear that thi s was merely for 
background purposes. Another Member did not wish to include it in the report. Among other 
issues, this Member pointed out that certain recent proposals of suspension of concessions 
were currently subject to DSU consultations, and so includ ing the compilation here could 
have an unwanted effect on the eventual analysis of the panel or the Appellate Body. The 
chair confirmed as follows: the table in Annex 4 contains a list of notifications compiled by 
the Secretariat for information purposes o nly, and the list does not represent an 
endorsement by the Secretariat or the Committee of the approach taken in any of the listed 
notifications, nor does it represent any position of the Secretariat or the Committee with 
regard to the listed notifications  per se  or their contents.  
• A Member wished to know whether Thailand offered consultations regarding the extension 
of the relevant measure, when and how Turkey requested consultations, when those 
consultations were held, the outcome of those consultations , and whether that outcome was 
notified under Article 12.5 of the SG Agreement . This Member further stated that the issue 
raised was fact -specific, and that requests made under Article 13.1 need to be handled on a 
case-by-case basis so that no p recedent is s et by this report.  
• In response, Thailand explained that it had notified12 on 18 April 2017  its offer of 
consultations. Turkey notified13 on 20 April 2017  its request to join the consultations. The 
consultations were held on 21 April 2017. At the consultation s, Turkey had requested  
compensation under Article 8.1 of the SG Agreement. However, Thailand considered that 
Turkey did not have a "substantial interest" in the sense of Article 12.3 of the SG Agreement 
because Thailand's imports of the subject goods from  Turkey amounted to less than 10% of 
Thailand's total imports of the subject goods. Thailand did not notify the Committee of the 
outcome of the consultations because Thailand did not propose "any form of compensation 
referred to in paragraph 1 of Article 8 ". 
                                                
11 Thailand refers to t he Appellate Body's clarification in Korea – Dairy  that a "[t]reaty should be 
interpreted as a whole, and in particular, its sections and parts should be read as  a whole" . 
12 G/SG/N/8/THA/3/Suppl.1 -G/SG/N/10/THA/3/Suppl.1.  
13 G/SG/ 143. G/L/1276  • G/SG/191  
 
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  4  CLOSING  
4.1.  In spite of its efforts, the Committee was unable to reach a consensus on the findings called 
for by Article 13.1(e). Accordingly, I have chosen to submit this factual report to the Council on 
Trade in Goods, under my own responsibility.  
__________