WT/DS545/7  
 
16 August 2018  
(18-5245) Page: 1/5 
  Original: English  
 
UNITED STATES – SAFEGUARD MEASURE ON  IMPORTS OF CRYSTALLI NE  
SILICON PHOTOVOLTAIC  PRODUCTS  
REQUEST FOR THE ESTA BLISHMENT OF A PANEL  BY THE REPUBLIC OF K OREA  
The following communication, dated 14 August 2018 , from the delegation of the Republic of Korea  
to the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
 
_______________  
 
 
1.  On 14 May 2018, the Government of the Republic of Korea ( "Korea ") requested consultations 
with the Government of the United States of A merica ( "United States ") pursuant to Articles 1 and 
4 of the Understanding on Rules 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, regarding the definitive safeguard measure imposed by the 
United States on imports of certain crystalline silicon photovoltaic cells, whether or not partially or 
fully assembled into other products (including, but not limited to, m odules, laminates, panels, and 
building -integrated materials) ( "crystalline silicon photovoltaic (CSPV) products ").  
2.  Consultations were held on 26 June 2018 with a view to reaching a mutually satisfactory 
solution.  However, these consultations failed to r esolve the dispute.  
3.  Therefore, Korea respectfully requests, pursuant to Article 6 of the DSU, Article XXIII of the 
GATT 1994, and Article 14 of the Agreement on Safeguards, that the Dispute Settlement Body 
establish a panel to examine this matter, with the  standard terms of reference as set out in Article 
7.1 of the DSU.  
4.  Pursuant to Article 6.2 of the DSU, Korea proceeds below to identify the specific measures at 
issue and to provide a brief summary of the legal basis of the complaint.  
I. Identification of  the Measure  
5.  This request concerns the definitive safeguard measure imposed by the United States on 
imports of certain CSPV products.  In accordance with Sections 201 -204 of the Trade Act of 1974, 
as amended (19 U.S.C. §§ 2251 -2254), the United States Int ernational Trade Commission 
("USITC ") initiated the CSPV investigation on 17 May 2017, covering the years 2012 -2016, to 
determine whether increased imports of the CSPV products at issue were a substantial cause of 
serious injury to domestic producers.   
6.  On 22 September 2017, the USITC determined that imports of CSPV products were imported in 
such increased quantities as to be a substantial cause of serious injury to a domestic industry in 
the United States, and submitted a report to the U.S. President on 13  November 2017 forwarding 
its injury findings and remedy recommendations.1  Following the issuance of USITC 's report, the 
Office of the United States Trade Representative (USTR) established a procedure for the 
                                                
1 See, U.S. International Trade Commission, Public Report, Volume I (Determination and Views of 
Commissioners) and Volume II (Information Obtained in the Investigation), Crystalline Silicon Photovoltaic 
Cells (Whether or not Partially or Fully Assembled into  Other Products), Inv. No. TA -201-75, USITC Pub. 4739 
(Nov. 2017); and U.S. International Trade Commission, Crystalline Silicon Photovoltaic Cells (Whether or not 
Partially or Fully Assembled into Other Products), Inv. No. TA -201-75, 82 Federal Register 55 393 (21 
November 2017) (Publication of summary of the USITC’s report on the investigation).  WT/DS545/7  
 
- 2 - 
 
  submission of written comments and the conduct  of a hearing concerning the action to be taken by 
the U.S. Administration following the USITC 's determination that imported CSPV products were a 
substantial cause of serious injury to domestic producers.2   
7.  On 27 November 2017, the President subsequently requested that the USITC identify any 
unforeseen developments that led to the CSPV products at issue being imported into the United 
States in such increased quantities to cause serious injury.  The USITC 's supplemental report was 
forwarded to the President  on 27 December 2017.3   
8.  Finally, on 23 January 2018, the President determined to impose a safeguard measure on the 
CSPV products at issue, which entered into force on 7 February 2018. The United States imposed 
the definitive safeguard measure on imports o f CSPV products pursuant to "Proclamation 9693 of 
January 23, 2018 – To Facilitate Positive Adjustment to Competition from Imports of Certain 
Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled Into Other 
Products) and for O ther Purposes, " 83 Federal Register 3541 (Jan. 25, 2018).  The safeguard 
measure was notified to the WTO on 26 January 2018.4 
9.  The measure took the form of a tariff -rate quota on imports of solar cells imposed for a period 
of 4 years, with unchanging in -quota quantities and annual reductions in the rates of duty 
applicable to goods entered in excess of those quantities in the second, third, and fourth years.  In 
addition, the measure took the form of an increase in duties on imports of modules, imposed for a  
period of 4 years with annual reductions in the rates of duty in the second, third, and fourth years.  
The duty rate for the first year was set at 30%.5 
10.   Subsequently, on 18 February 2018, USTR established additional procedures for interested 
parties to r equest that certain products be excluded from the safeguard measure on CSPV 
products.6  As of 14 August 2018,  it appears that so far no particular products have been granted 
an exclusion pursuant to the procedures established by USTR.    
11.  This request also concerns any modification, review, replacement or amendment to the 
definitive safeguard measure, including any closely connected, subsequent measures affecting the 
form, amount, or implementation of the safeguard remedy, as well as the underlying reports, 
memoranda and other documents supporting the safeguard measure.  
II. Legal Basis  
12.  According to Article 11.1(a) of the Agreement on Safeguards, a Member shall not take or seek 
any emergency action on imports of particular products as set forth in Article XI X of the GATT 
1994 unless such action conforms to the provisions of that Article applied in accordance with the 
Agreement on Safeguards.   
13.  In this respect, the safeguard measure imposed by the United States on crystalline silicon 
photovoltaic products is i nconsistent with the obligations of the United States under the GATT 
1994 and the Agreement on Safeguards.  
                                                
2 See, Office of the U.S. Trade Representative, Request for Comments and Public Hearing About the 
Administration’s Action Following a Determination of Import Injury  With Regard to Certain Crystalline Silicon 
Photovoltaic Cells, 82 Federal Register 49469 (25 October 2017); and Office of the U.S. Trade Representative, 
Additional Information About Participating in the Process Concerning the Administration’s Action Follo wing a 
Determination of Import Injury With Regard to Certain Crystalline Silicon Photovoltaic Cells, 82 Federal 
Register 52764 (14 November 2017).  
3 See, Supplemental Report of the U.S. International Trade Commission Regarding Unforeseen 
Developments; see also "Proclamation 9693 of January 23, 2018 – To Facilitate Positive Adjustment to 
Competition from Imports of Certain Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully 
Assembled Into Other Products) and for Other Purposes ", 83 Fede ral Register 3541 (25 January 2018), para. 4.  
4 Notified by the United States to the WTO Committee on Safeguards in document with reference: 
G/SG/N/8/USA/9/Suppl.4; G/SG/N/10/USA/7; G/SG/N/11/USA/6.  
5 See, "Proclamation 9693 of January 23, 2018 – To Facili tate Positive Adjustment to Competition from 
Imports of Certain Crystalline Silicon Photovoltaic Cells (Whether or Not Partially or Fully Assembled Into Other 
Products) and for Other Purposes ", 83 Federal Register 3541 (25 January 2018).  
6 See, Office of t he U.S. Trade Representative, Procedures to Consider Additional Requests for Exclusion 
of Particular Products from the Solar Products Safeguard Measure, 83 Federal Register 6670 (14 
February2018).  WT/DS545/7  
 
- 3 - 
 
  14.  In particular, Korea considers that the safeguard measure fails to comply with the following 
provisions:  
a. Article XIX:1(a) of the GATT 1994 and Articles 1 and 3.1 of the Agreement on 
Safeguards  because  the United States failed to provide the necessary reasoned and 
adequate explanation of the fact that the increased imports in covered CSPV products 
resulted from "unforeseen developments " and were "the effect of the obligations 
incurred " by the United States. In particular, among others:  
 The United States failed to explain the "unforeseen " nature of the developments it 
considered relevant in this respect;  
 The United States failed to explain the requi red connection between the alleged 
unforeseen developments and the increase in imports of each of the covered CSPV 
products;  
 The individual country -specific circumstances that the United Sates considers to have 
been "unforeseen developments " are neither relevant to nor can justify the 
imposition of a global safeguard measure;  
 The United States also failed to provide a reasoned and adequate explanation of the 
particular "obligations incurred " that had as their effect that imports of CSPV produ cts 
increased in such quantities and under such conditions as to cause serious injury.  
b. Articles 2.1, 3.1, 4.1(c) and 4.2 of the Agreement on Safeguards  since the United States 
failed to determine properly the "domestic industry " allegedly injured by the in creased 
imports.  In particular, the United States defined the domestic industry in a manner that 
failed to limit the scope to only those producers producing the "like or directly 
competitive products " as it lumped together producers of CSPV cells and modu les.    
c. Articles 2.1 and 3.1 of the Agreement on Safeguards  because the United States failed to 
provide a reasoned and adequate explanation that the subject imports increased "in such 
quantities and under such conditions " to cause serious injury to the dom estic industry.  
In particular, among others:  
 The United States failed to explain the basis for its selection of certain data for 
purposes of examining the increase in imports of all covered products;  
 The United States failed to provide a reasoned and adeq uate explanation that the 
increase in imports of covered CSPV products would have been sufficiently recent, 
sudden, sharp and significant enough, both quantitatively and qualitatively, to 
warrant an emergency safeguard measure.  
d. Articles 2.1, 3.1, 4.1(a) an d (b), and 4.2(a) of the Agreement on Safeguards  as the 
United States failed to provide a reasoned and adequate explanation of a significant 
overall impairment in the position of the domestic industry to support its conclusion that 
the domestic industry wa s suffering "serious injury or threat of serious injury ".  In 
particular, among others:  
 The United States failed to evaluate "all relevant factors " having a bearing on the 
situation of the industry and in particular not all of the factors listed in Article  4.2(a);  
 The United States failed to engage in the necessary substantive "evaluation " of the 
relevant factors listed under Article 4.2 for examining the state of the domestic 
industry and failed to assess the explanatory force of the increased imports;  
 The United States failed to provide a reasoned and adequate explanation that the 
factors examined supported a conclusion of a "significant overall impairment " of the 
domestic industry given several positive trends.  WT/DS545/7  
 
- 4 - 
 
  e. Articles 2.1, 3.1 and 4.2(b) of the Agreemen t on Safeguards  because the United States 
failed to establish the required "causal link " between the increased imports and the 
serious injury found to exist and failed to ensure that injury caused by other factors was 
not attributed to increased imports.  In particular, among others:  
 The United States failed to demonstrate on the basis of objective evidence that the 
increased imports of the subject imports "caused or threatened to cause " serious 
injury to the domestic industry given the lack of coincidence in trends and in light of 
the specific conditions of competition in the market;  
 The United States failed to separate and distinguish the injury caused by other 
factors and failed to ensure that injurious effects from other causal factors were not 
included in the assessment of injury that are ascribed to increased imports.  
f. Articles 3.1, 3.2 and 4.2(c) of the Agreement on Safeguards  because the United States 
did not provide the interested parties with sufficient opportunities to participate in the 
investigat ion and respond to the presentations of other parties, including as a result of 
the failure to respect the requirement on granting confidential treatment only "upon 
cause being shown " and the absence of availability of sufficiently informative non -
confiden tial summaries.  In addition, the United States failed to set forth in the published 
report the findings and reasoned conclusions on all pertinent issues of fact and law, 
including the conditions for imposing the measure, and the nature and level of the 
measure imposed.  In particular, the published reports of the competent authorities fail 
to present the required "reasoned and adequate explanation " and "detailed analysis " of 
the case under investigation as well as a demonstration of the relevance of the fa ctors 
examined.   
g. Articles 5.1 and 7.4 of the Agreement on Safeguards  as the United States failed to apply 
the safeguard measure only to the "extent necessary to prevent or remedy serious 
injury.  In particular, among others:  
 The United States failed to li mit the application of the measure to the serious injury 
allegedly caused by increased imports and not by other factors;  
 The United States failed to provide a reasoned and adequate explanation of the 
methodology used to support the particular type of measu re and the level at which 
the measure was imposed, including in the light of less restrictive measures that 
were available and that provided an equivalent contribution to preventing or 
remedying injury and facilitating adjustment;  
 The United States also fa iled to provide a reasoned and adequate explanation of the 
extent to which the measure would facilitate adjustment;  
 The United States failed to ensure that the measure was not applied beyond what is 
necessary not only at the time of the imposition of the m easure but also at the 
various stages of progressive liberalization;  
 The United States failed to explain why the safeguard measure against imports of 
CSPV products from Korea was "necessary " given that the United States did not find 
that imports from Korea  were a substantial cause of current serious injury.  
 
h. Article 7.1 of the Agreement on Safeguards  since the United States failed to apply the 
safeguard measure only for such period of time as may be necessary to prevent or 
remedy serious injury and to facil itate adjustment.  In particular, the United States failed 
to provide a reasoned and adequate explanation of the basis for its determination of the 
length of time the measure was necessary to stay in place and for the time needed for 
the adjustment efforts  that would be undertaken by the domestic industry;  
i. Article 8.1 of the Agreement on Safeguards  because the United States failed to endeavor 
to maintain a substantially equivalent level of concessions and other obligations under WT/DS545/7  
 
- 5 - 
 
  the GATT 1994 between the U nited States and Korea in accordance with Article 12.3 of 
the Agreement on Safeguards.  In particular, the United States failed to provide an 
adequate oppo rtunity for prior consultations  given the very short period of time provided 
for such prior consultat ions and never engaged on any adequate means of trade 
compensation;  
j. Articles 12.1, 12.2 and 12.3 of the Agreement on Safeguards  because the United States 
failed to provide immediate notifications of the different decisions given the time 
between the decision in question and the time of notification of the decision in question.  
In addition, in its notifications, the United States failed to provide all pertinent 
information including evidence of serious injury or threat thereof caused by increased 
imports among others as a result of the undue redaction of allegedly confidential 
information and the failure to provide adequate non -confidential summaries.  
Furthermore, the United States failed to provide Korea with an adequate opportunity for 
prior consultations given the short period of time between the decision to apply the 
measure, its notification and the application of the measure;  and 
k. Article II:1 of the GATT 1994  because the safeguard measure amounts to a withdrawal 
or modification of the United States ' concessions without a justification under Article XIX 
of the GATT 1994, the Agreement on Safeguards, or any other provisions of t he WTO 
Agreement.   
III. CONCLUSION  
15.  The United States ' safeguard measures on CSPV products nullifies or impairs benefits accruing 
to Korea, directly or indirectly, under the cited agreements.  
16.  Therefore, Korea respectfully requests, pursuant to Article 6 of the DSU, Article XXIII of the 
GATT 1994, Article 14 of the Agreement on Safeguards, that the Dispute Settlement Body 
establish a panel to examine this matter, with the standard terms of refer ence as set out in Article 
7.1 of the DSU.  
17.  Korea further asks that this request for the establishment of a panel be placed on the agenda 
of the next meeting of the Dispute Settlement Body to be held on 27 August 2018 . 
 
__________