WT/DS518/8  
 
18 December 2018  
(18-7990) Page: 1/3 
  Original: English  
 
INDIA  – CERTAIN MEASURES ON IMPORTS OF IRON AND STEEL PRODUCTS  
 
NOTIFICATION OF AN A PPEAL BY INDIA  UNDER ARTICLES 16.4  AND 17 OF THE UNDER STANDING 
ON RULES AND PROCEDU RES GOVERNING THE SE TTLEMENT OF DISPUTES  (DSU),  
AND RULE 2 0 OF THE WORKING PROC EDURES FOR APPELLATE  REVIEW  
The following communication, dated 14 December 2018, from the delegation of India, is being 
circulated to Members.  
 
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1. Pursuant to Article 16.4 and Article 17.1 of the DSU, India  hereby notifie s to the 
Dispute  Settlement Body its decision to appeal to the Appellate Body certain issues of law and legal 
interpretations covered in the report of the Panel in India – Certain Measures on Imports of Iron and 
Steel Products (WT/DS518/R). Pursuant to Rul e 23(1) of the W orking Procedures for 
Appellate  Review, India is simultaneously filing this Notice of Appeal with the Appellate Body 
Secretariat.  
2. For the reasons to be further elaborated in its submissions to the Appellate Body, 
India appeals, and requests  the Appellate Body to reverse or declare of no legal effect the findings 
and conclusions of the Panel with respect to the errors of law and legal interpretations contained in 
the Panel Report described below:  
a. The Panel erred in stating that there are " Lingering Effects" of the Measure at issue  
3. India appeals the finding of the Panel that the impugned safeguard measures applied by India 
on Imports of Iron and Steel Products continue to have "lingering effects" despite its expiry. In this 
regard, India sub mits that the Panel erred on the grounds that: (a) The Panel did not provide 
sufficient justification for its findings and recommendations; (b) The Panel has mischaracterized the 
precedents it relied on to make such a ruling; (c) The Panel 's recommendation  results in remedies 
under the DSU having retrospective effect; and (d) The Panel overlooked the standard of burden of 
proof required to establish the lingering effects.  
4. India requests the Appellate Body to reverse the findings of the Panel that the impugn ed 
safeguard measures applied by India on Imports of Iron and Steel Products continue to have 
"lingering effects" despite its expiry. India also requests the Appellate Body to overrule the 
recommendation of the Panel to the DSB that to the extent the measu re continues to have any 
effects, India bring it into conformity with its obligations under those agreements.  
b. The Panel 's finding with respect to the obligations incurred under the GATT 1994 
and the effect of the obligations incurred under the GATT 1994  is erroneous  
5. India challenges the conclusion of the Panel that 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. I ndia also challenges Panel 's conclusion 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, more specifically the finding of the Panel 
with respec t to the Article II:1(b) and Article XXIV of GATT 1994. India believes that the Panel, 
created an artificial distinction while interpreting the meaning of obligation incurred under GATT to WT/DS518/8  
 
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  state that India has not demonstrated that the measure at issue res ulted in a suspension of its 
obligations under Article  XXIV of the GATT  1994. Further, with respect to the conclusion of the Panel 
with respect to effect of India 's obligation under Article II:1(b) and Article XXIV of GATT 1994, the 
Panel failed to appreci ate that India incurred obligations under Article II:1(b) and Article XXIV GATT, 
1994 including tariff concessions which triggered increase in imports and subsequent serious injury 
to Indian domestic Industry.  
6. India requests the Appellate Body to reverse the findings of the Panel that 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. India also request the 
Appellate B ody to overrule the conclusion of the Panel that Indian competent authority failed to 
provide a reasoned and adequate explanation with regard to the effect of the relevant obligations of 
the GATT 1994, more specifically the finding of the Panel with respec t to the Article II:1(b) and 
Article XXIV of GATT 1994.  
c. The Panel 's Findings that India failed to provide a reasoned explanation that the 
increase in imports of the product concerned into India occurred as a result of 
unforeseen developments are erroneo us 
7. India further challenges the finding of the Panel that India violated Article XIX of GATT 1994 
on the ground that India failed to provide a reasoned explanation that the increase in imports of the 
product concerned into India occurred as a result of unf oreseen developments. While giving its 
conclusion, the Panel has basically suggested that India was required to do a country -wise and a 
product wise analysis. The Panel has also stated that the timing of the unforeseen developments is 
a relevant considerat ion for showing that the unforeseen developments resulted in an increase in 
imports. India submits that the findings of the Panel besides being erroneous, cast an additional and 
unwarranted burden on India which is not expressly mentioned in GATT 1994 or t he Agreement on 
Safeguards.  
8. India requests the Appellate Body to reverse the conclusion of the Panel that India violated 
Article XIX of GATT 1994 on the ground that India failed to provide a reasoned explanation that the 
increase in imports of the product concerned into India occurred as a result of unforeseen 
developments.  
d. The Panel erred in stating that the Annualization of data done by Indian Authority 
was inconsistent with Article 4.2(a) and 4.2(b) of the Agreement on Safeguards  
9. India also challenges  the conclusion of the Panel that the safeguard measures imposed by 
India was inconsistent with Article 4.2(a) and 4.2(b) of the Agreement on safeguards on the ground 
that Indian competent authority failed to base its analysis of trends in imports and tren ds in injury 
factors on objective evidence, when it relied at least partly on annualized data. India considers that 
the findings of the Panel are erroneous because: (a) Annualization is a widely used statistical tool 
and its usage does not require a "compe lling explanation" as long as there is no evidence of bias; 
and (b) the lack of explanation regarding annualization is not a violation of Article 4.2(a) of the 
Agreement on Safeguards.  
10. India request the Appellate Body to reverse the decision of the Panel that the safeguard 
measures imposed by India was inconsistent with Article 4.2(a) and 4.2(b) of the Agreement on 
safeguards on the ground that Indian competent authority failed to base its analysis of trends in 
imports and trends in injury factors on objec tive evidence, when it relied at least partly on annualized 
data. 
e. The Panel erred in stating that Indian competent authority failed to properly 
examine the price competition between imported and domestic products , when it 
based its price comparison on t he average unit price of imported products and the 
average unit price of the like or directly competitive domestic products  
11. India challenges the finding of the Panel that 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.  India believes that while giving its conclusion, the Panel WT/DS518/8  
 
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  failed to appreciate that the Agreement on Safeguards does not at all envisage a comparison of 
prices as required in Article 2.4 of the Anti -Dumping Agreement.  The Panel failed to appreciate that 
agreement on safeguard does not require a division/categoriza tion of every subset of a product with 
respect to their pricing.  
12. The Appellate Body is requested to reverse the conclusion of the Panel that 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.  
f. The Panel 's finding with respect to the Non -attribution analysis is erroneous  
13. India appeals against  the conclusion of the Panel with respect to the non -attribution analysis 
in as much as it is based on the erroneous conclusion with respect to the determination of "relevance" 
of "other factors". India believes that the Panel failed to consider  that with regard to the "other 
factors", the text of Article 4.2(a) specifically empowers the Competent Authority to make a 
judgment whether a particular factor is relevant or not, based on the tests of its being "of an 
objective and quantifiable nature" and "having a bearing on the situation" of the domestic industry. 
It is only after the Competent Authority decides about the "relevance " of a factor applying the 
twin criteria that the obligation of carrying out the non -attribution analysis in terms of the  second 
part of Article 4.2(b) shall arise.   
14. India requests the Appellate Body to declare the finding of the Pa nel that India violated 
Article  4.2(b) of the Agreement on Safeguards in as much as the finding of the Panel is based on 
erroneous conclusion wit h respect to the non -attribution analysis regarding the determination of 
"relevance" of "other factors" erroneous.  
15. India notes that the above grounds of appeal are without prejudice to the arguments 
developed in India 's Appellant's Submission . 
 
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