WT/DS490/R/Add.1  
WT/DS496/R/Add.1  
 
18 August 2017 
(17-4425) Page: 1/83 
  Original: English  
 
  INDONESIA – SAFEGUARD ON CERTAIN  IRON OR STEEL PRODUC TS 
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in document 
WT/DS490/R, WT/DS496/R.  
 
 
_______________  
 
 WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
INTERIM REVIEW  AND WORKING PROCEDUR ES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  A-2 
Annex  A-2 Additional Working Procedures of the Panel concerning Business Confidential 
Information  A-7 
Annex  A-3 Interim Review  A-9 
ANNEX B  
ARGUMENTS OF THE  PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the complainants  B-2 
Annex  B-2 Integrated executive summary of the arguments of Indonesia  B-25 
ANNEX  C 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Integrated e xecutive summary of the arguments of Australia  C-2 
Annex  C-2 Integrated executive summary of the arguments of the European Union  C-4 
Annex  C-3 Integrated executive summary of the arguments of Japan  C-7 
Annex  C-4 Integrated executive summary of the argum ents of Ukraine  C-10 
Annex  C-5 Integrated executive summary of the arguments of the United States  C-12 
 
 
 WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  ANNEX  A 
INTERIM REVIEW AND W ORKING PROCEDURES OF  THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  A-2 
Annex  A-2 Additional Worki ng Procedures of the Panel concerning Business Confidential 
Information  A-7 
Annex  A-3 Interim Review  A-9 
 WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  ANNEX  A-1 
WORKING PROCEDURES O F THE PANEL  
Adopted on 1 July 2016 
1.  In its proceedings, the Panel shall follow the relevant provisions of the Under standing on Rules 
and Procedures Governing the Settlement of Disputes (DSU). In addition, the following Working 
Procedures shall apply.  
General  
 
2.  The deliberations of the Panel and the documents submitted to it shall be kept confidential. 
Nothing in the  DSU or in these Working Procedures shall preclude a party to the dispute (hereafter 
"party") from disclosing statements of its own positions to the public. Members shall treat as 
confidential information submitted to the Panel by another Member which the submitting Member 
has designated as confidential. Where a party submits a confidential version of its written 
submissions to the Panel, it shall also, upon request of a Member, provide a non -confidential 
summary of the information contained in its submissi ons that could be disclosed to the public.  
3.  The Panel shall meet in closed session. The parties, and Members having notified their interest 
in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU (hereafter 
"third parties "), shall be present at the meetings only when invited by the Panel to appear before 
it.  
4.  Each party and third party has the right to determine the composition of its own delegation 
when meeting with the Panel. Each party and third party shall have the  responsibility for all 
members of its own delegation and shall ensure that each member of such delegation acts in 
accordance with the DSU and these Working Procedures, particularly with regard to the 
confidentiality of the proceedings.  
Submissions  
 
5.  Before the first substantive meeting of the Panel with the parties, each party shall submit a 
written submission in which its presents the facts of the case and its arguments, in accordance 
with the timetable adopted by the Panel. Each party shall also subm it to the Panel, prior to the 
second substantive meeting of the Panel, a written rebuttal, in accordance with the timetable 
adopted by the Panel.  
6.  A party shall submit any request for a preliminary ruling at the earliest possible opportunity 
and in any  event no later than in its first written submission to the Panel. If Chinese Taipei1 or 
Viet Nam requests such a ruling, Indonesia shall submit its respo nse to the request in its 
first written submission. If Indonesia requests such a ruling, Chinese Taipe i and Viet Nam shall 
submit its response to the request prior to the first substantive meeting of the Panel, at a time to 
be determined by the Panel in light of the request. Exceptions to this procedure shall be granted 
upon a showing of good cause.  
7.  Each party shall submit all factual evidence to the Panel no later than during the first 
substantive meeting, except with respect to evidence necessary for purposes of rebuttal, answers 
to questions or comments on answers provided by the other party. Excepti ons to this procedure 
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel 
shall accord the other party/parties a period of time for comment, as appropriate, on any new 
factual evidence submitted after the first s ubstantive meeting.  
8.  Where the original language of exhibits is not a WTO working language, the submitting party or 
third party shall submit a translation into the WTO working language of the submission at the 
same time. The Panel may grant reasonable extensions of time for the translation of such exhibits 
                                                
1 Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  upon a showing of good cause. Any objection as to the accuracy of a translation should be raised 
promptly in writing, no later than the next filing or meeting (whichever occurs earlier) following 
either (a) the submission which contains the disputed translation or (b) the date on which the 
significance of the translation issue first becomes apparent to the objecting party. Any objection 
shall be accompanied by a detailed explanation of the grounds of o bjection and an alternative 
translation.  
9.  Each party and third party is invited to make its submissions in accordance with the WTO 
Editorial Guide for Panel Submissions to the extent that it is practical to do so.  
10.  To facilitate the maintenance of  the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute. For example, exhibits submitted by Viet Nam could be numbered VNM -1, 
VNM-2, etc. If the last exhibit in connection with the first submission was numbered VNM -5, the 
first exhibit of the next submission thus would be numbered VNM -6. 
Questions  
 
11.  The Panel may at any time pose questions to the parties and third parties, orally or in writ ing, 
including prior to each substantive meeting.  
Substantive meetings  
 
12.  Each party shall provide to the Panel the list of members of its delegation in advance of each 
meeting with the Panel and no later than 5.00  p.m. on the previous working day.  
13.  The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite Chinese Taipei and Viet Nam to make an opening statement to 
present their respective cases first. Subsequently, the Panel shall invite Indonesia to 
present its point of view. Before each party takes the floor, it shall provide the Panel 
and other participants at the meeting with a provisional written version of its opening 
statement. In the event that interpretation is needed, each party shall provide 
additional copies for the interpreters, through the Panel Secretary. Each party shall 
make available to the Panel and the other parties the final version of its opening 
statement as well as its closing statement, if any, preferably at the end  of the 
meeting, and in any event no later than 5.00  p.m. on the first working day following 
the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity 
to ask each other questions or make comments, through the P anel. Each party shall 
then have an opportunity to answer these questions orally. Each party shall send in 
writing, within a timeframe to be determined by the Panel, any questions to the other 
party/parties to which it wishes to receive a response in writi ng. Each party shall be 
invited to respond in writing to the other party's written questions within a deadline to 
be determined by the Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have 
an opportunity to answer t hese questions orally. The Panel shall send in writing, 
within a timeframe to be determined by it, any questions to the parties to which it 
wishes to receive a response in writing. Each party shall be invited to respond in 
writing to such questions within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the Panel shall afford each party an opportunity 
to present a brief closing statement, with Chinese Taipei and Viet Nam presenting 
their statements first.  
14.  The second sub stantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall ask Indon esia if it wishes to avail itself of the right to present its case 
first. If so, t he Panel shall invite Indonesia  to present its opening statement, fo llowed WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  by Chinese Taipei and Viet Nam. If Indonesia chooses not to avail itself of that right, 
the Panel shall invite Chinese Taipei or Viet Nam to present their respective opening 
statements first. Before each party takes the floor, it shall provide the P anel and other 
participants at the meeting with a provisional written version of its statement. In the 
event that interpretation is needed, each party shall provide additional copies for the 
interpreters, through the Panel Secretary. Each party shall make available to the Panel 
and the other parties the final version of its opening statement as well as its closing 
statement, if any, preferably at the end of the meeting, and in any event no later than 
5.00 p.m. of the first working day following the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity 
to ask each other questions or make comments, through the Panel. Each party shall 
then have an opportunity to answer these questions orally. Each party shall send i n 
writing, within a timeframe to be determined by the Panel, any questions to the other 
party/parties to which it wishes to receive a response in writing. Each party shall be 
invited to respond in writing to the other party's/parties' written questions wit hin a 
deadline to be determined by the Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have 
an opportunity to answer these questions orally. The Panel shall send in writing, 
within a timeframe to be determined by i t, any questions to the parties to which it 
wishes to receive a response in writing. Each party shall be invited to respond in 
writing to such questions within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the Panel shall  afford each party an opportunity 
to present a brief closing statement, with the party that presented its opening 
statement first, presenting its closing statement first.  
Third parties  
 
15.  The Panel shall invite each third party to transmit to the Panel  a written submission prior to 
the first substantive meeting of the Panel with the parties, in accordance with the timetable 
adopted by the Panel.  
16.  Each third party shall also be invited to present its views orally during a session of this first 
subst antive meeting, set aside for that purpose. Each third party shall provide to the Panel the list 
of members of its delegation in advance of this session and no later than 5.00  p.m. the previous 
working day.  
17.  The third -party session shall be conducted as follows:  
a. All third parties may be present during the entirety of this session.  
b. The Panel shall first hear the arguments of the third parties in alphabetical order. 
Third parties present at the third -party session and intending to present their vi ews 
orally at that session, shall provide the Panel, the parties and other third -parties with 
provisional written versions of their statements before they take the floor. Third parties 
shall make available to the Panel, the parties and other third parties the final versions of 
their statements, preferably at the end of the session, and in any event no later than 
5.00 p.m. of the first working day following the session.  
c. After the third parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification on any 
matter raised in the third parties' submissions or statements. Each party shall send in 
writing, within a timeframe to be determined by the Panel, any questions to a th ird party 
to which it wishes to receive a response in writing.  
d. The Panel may subsequently pose questions to the third parties. Each third party shall 
then have an opportunity to answer these questions orally. The Panel shall send in 
writing, within a t imeframe to be determined by it, any questions to the third parties to WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  which it wishes to receive a response in writing. Each third party shall be invited to 
respond in writing to such questions within a deadline to be determined by the Panel.  
Descriptive part 
 
18.  The description of the arguments of the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in any way serve 
as a substitute for the submissions of the parties and third parties in the Panel's examination of 
the case.  
19.  Each party shall submit an integrated executive summary of the facts and arguments as 
presente d to the Panel in its written submissions, oral statements and, where relevant, responses 
to questions, in accordance with the timetable adopted by the Panel. Each integrated executive 
summary shall be limited to no more than 30 pages. The Panel will not s ummarize in a separate 
part of its report, or annex to its report, the parties' responses to questions.  
20.  Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable adopted by the Panel. 
This integrated executive summary may also include a summary of responses to questions, if 
relevant. The executive summary to be provided by each third party shall not exceed 6 pages.  
21.  The Panel reserves the ri ght to request the parties and third parties to provide executive 
summaries of facts and arguments presented by a party or a third party in any other submissions 
to the Panel for which a deadline may not be specified in the timetable.  
Interim review  
 
22.  Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such  a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
23.  In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written request for rev iew, in accordance with the timetable 
adopted by the Panel. Such comments shall be limited to commenting on the other party's/parties' 
written request for review.  
24.  The interim report, as well as the final report prior to its official circulation, shal l be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
25.  The following procedures regarding service of documents shall apply:  
a. Each party and third party shall submit all documents to the Panel by filing them with 
the DS  Registry (office No. 2047).  
b. Each party and third party shall file 8 paper copies of all documents, except exhibits, it 
submits to the Panel. Exhibits may be filed in 4 copies on CD -ROM or DVD or USB key 
and 2 paper copies. The DS  Registrar shall stamp the  documents with the date and 
time of the filing. The paper version shall constitute the official version for the 
purposes of the record of the dispute.  
c. Each party and third party shall also provide an electronic copy of all documents it 
submits to the P anel at the same time as the paper versions, preferably in Microsoft 
Word format, either on a CD -ROM, a DVD, a USB key or as an e -mail attachment. If 
the electronic copy is provided by e -mail, it should be addressed to 
DSRegistry@wto.org, with a copy to XXXXXX @wto.org. If a CD -ROM or DVD or 
USB key is provided, it shall be filed with the DS Registry.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  d. Each party shall serve any document submitted to the Panel directly on the other 
parties. Each party shall, in addition, serve on all third parties its wri tten submissions 
in advance of the first substantive meeting with the Panel. Each third party shall serve 
any document submitted to the Panel directly on the parties and all other 
third parties. Each party and third party shall confirm, in writing, that co pies have 
been served as required at the time it provides each document to the Panel.  
e. Each party and third party shall file its documents with the DS Registry and serve 
copies on the other parties (and third parties where appropriate) by 5.00  p.m. 
(Gene va time) on the due dates established by the Panel. A party or third party may 
submit its documents to another party or third party in electronic format only, subject 
to the recipient party or third party's prior written approval and provided that the 
Panel Secretary is notified.  
f. The Panel shall provide the parties with an electronic version of the descriptive part, 
the interim report and the final report, as well as of other documents as appropriate. 
When the Panel transmits to the parties or third part ies both paper and electronic 
versions of a document, the paper version shall constitute the official version for the 
purposes of the record of the dispute.  
26.  The Panel reserves the right to modify these procedures as necessary, after consultation with 
the parties.  
 
 WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  ANNEX A -2 
ADDITIONAL WORKING P ROCEDURES OF THE PANEL CONCERN ING 
BUSINESS  CONFIDENTIAL  INFORMATION  
Adopted on 22 July 2016 
1.  The following procedures apply to business confidential information (BCI) submitted in the 
course of the present P anel proceedings.  
2.  For the purposes of these proceedings, BCI is defined as any information that has been 
designated as such by a party or a third party submitting the information to the Panel. The parties 
or third parties shall only designate as BCI i nformation that is not available in the public domain, 
the release of which would cause serious harm to the interests of the originator(s) of the 
information. BCI may include information that was previously treated as confidential within the 
meaning of Art icle 3.2 of the Safeguards Agreement by the investigating authorities of the 
Indonesia in the safeguards investigation at issue in this dispute, unless the person who provided 
the information in the course of that investigation agrees in writing to make th e information 
publicly available.  
3.  If a party or third party considers that information submitted by the other party or a third party 
should have been designated as BCI and objects to its submission without such designation, it 
shall forthwith bring thi s objection to the attention of the Panel, the other party, and, where 
relevant, the third parties, together with the reasons for the objection. Similarly, if a party or third 
party considers that the other party or a third party designated as BCI informat ion which should 
not be so designated, it shall forthwith bring this objection to the attention of the Panel, the other 
party, and, where relevant, the third parties, together with the reasons for the objection. The 
Panel shall decide whether information s ubject to an objection will be treated as BCI for the 
purposes of these proceedings on the basis of the criteria set out in paragraph 2.  
4.  No person may have access to BCI except a member of the Secretariat or the Panel, an 
employee of a party or of a th ird party, or an outside advisor to a party or third party for the 
purposes of this dispute. A person having access to BCI shall not disclose that information other 
than to persons authorized to have access to it pursuant to these procedures. Any informati on 
designated as BCI shall only be used for the purposes of this dispute. Each party and third party is 
responsible for ensuring that its employees and/or outside advisors comply with these procedures.  
5.  An outside advisor to a party or third party is no t permitted access to BCI if that advisor is an 
officer or employee of an enterprise engaged in the production, sale, export, or import of the 
product(s) that was/were the subject of the investigation at issue in this dispute, or an officer or 
employee of an association of such enterprises.  
6.  Third parties' access to BCI shall be subject to the terms of these procedures.  A party objecting 
to a third party having access to BCI it is submitting shall inform the Panel of its objection and the 
reasons theref or prior to filing the document containing such BCI. The Panel may, if it finds the 
objection justified, request the objecting party to provide a non -confidential version of the BCI in 
question to the third party.   
7.  Submission of BCI by parties or third  parties:  
(i) The party or third party submitting BCI shall indicate the presence of such information 
in any document submitted to the Panel, as follows: the first page or cover of the 
document, and each page of the document, shall contain the notice "Contains 
Business Confidential Information " at the top of the page. The specific business 
confidential information in question shall be placed between double brackets, as 
follows: [[xx,xxx.xx]]. A party submitting BCI in the form of, or as part of, an Exhibit 
shall so indicate by putting "BCI" next to the exhibit number (e.g. Exhibit IDN -1 
(BCI)).  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  (ii) Where BCI is submitted in electronic format, the file name shall include the terms 
"Business Confidential Information" or "BCI". In addition, where applicable, the label 
of the storage medium shall be clearly marked with the statement "Business 
Confidential Information" or "BCI".  
(iii) In the case of an oral statement containing BCI, the party or third party making such 
a statement shall inform the Panel before m aking it that the statement will contain 
BCI, and the Panel will ensure that only persons authorized to have access to BCI 
pursuant to these procedures are in the room to hear that statement. The written 
versions of such oral statements submitted to the Pa nel shall be marked as provided 
for in paragraph 7 (i). 
8.  Any person authorized to have access to BCI under the terms of these procedures shall store 
all documents or other media containing BCI in such a manner as to prevent unauthorized access 
to such i nformation.  
9.  The Panel will not disclose BCI, in its report or in any other way, to persons not authorized 
under these procedures to have access to BCI. The Panel may, however, make statements of 
conclusion drawn from such information. Before the Panel circulates its final report to the 
Members, the Panel will give each party and, where BCI was submitt ed by a third party, that 
third party an opportunity to review the report to ensure that it does not contain any information 
that the party or third party has designated as BCI.  
10.  Submissions, exhibits, and other documents or recordings containing BCI will be included in 
the record forwarded to the Appellate Body in the event of an appeal of the report of the Panel.  
 
 WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  ANNEX A -3 
INTERIM REVIEW  
1  INTRODUCTIO N  
1.1.  In compliance with Article 15.3 of the DSU, this Annex sets out the Panel's discussion and 
disposition of the arguments made at the interim review stage. We have modified certain aspects 
of the Report in light of the parties' comments where we considere d it appropriate, as explained 
below. In addition, a number of changes of an editorial nature have been made to improve the 
clarity and accuracy of the Report or to correct typographical and other non -substantive errors, 
certain of which were suggested by the parties.1 
1.2.  As a result of the changes that we have made, the numbering of footnotes in the Final Report 
has changed from the Interim Report. References to footnotes and paragraph numbers in this 
section relate to the Final Report, unless otherwise speci fied. 
2  COMPLAINANTS' NON -SPECIFIC REQUESTS FO R REVIEW OF SECTION 7.3 
2.1  Panel's overall analysis and findings  
2.1.  The complainants maintain that the Panel's finding that the specific duty is not a safeguard 
measure is based on a "theory" that was not argued by th e parties, who in fact all agreed and 
argued that the specific duty is a safeguard measure within the meaning of the Agreement on 
Safeguards and Article XIX of the GATT 1994. The complainants assert that the parties were not 
given "a full opportunity to pr esent arguments on the Panel's theory"2, and "[i]n these 
circumstances", that "it is incumbent on the Panel to consider carefully and to address in detail in 
its final report" the "arguments" presented in their comments on the Interim Report3, which call 
upon the Panel to: (a) "clarify" and "explain" various aspects of the analysis and findings set out in 
Section 7.3 of the Interim Report; (b) "provide its views" on a number of alleged implications of 
that analysis and those findings; and (c) "review its re asoning" in the light of three sets of 
considerations.4 
2.2.  Indonesia submits that the complainants' requests should be denied because they "clearly do 
not serve the purpose of interim review"5, which according to Indonesia should not be used to 
enter into a d ebate about the merits of a panel's findings. Indonesia considers that parties to a 
dispute should respect the findings and conclusions of a panel, and pursue any disagreements 
through the appeal procedure provided for in the DSU.6 
2.3.  It is well established t hat the interim review stage of a panel proceeding is intended to allow 
parties to " submit comments on the draft report issued by the panel, and to make requests 'for the 
panel to review precise aspects of the interim report'".7 The interim review process is not an 
opportunity for parties to advance arguments as to why they consider a particular "theory" 
allegedly relied upon by a panel in its Interim Report to be incorrect. Neither is it a time for parties 
to enter into a debate about the merits of a panel 's interpretation of relevant legal provisions8, a 
fortiori  when they have exchanged views on the subject matter during the course of a proceeding 
(as the parties have done in this dispute9). Panels are not required to defend their findings and 
                                                
1 These include changes in paragraphs 7.47, 7.63, 7.67, 7.93, 7.95, 7.96, 7. 126, 7.132, and 7.139, and 
in footnotes 12, 51, 65, 109, 133, 134, 139, 177, 182, 231, 250, and 272.  
2 Complainants' request for interim review, paras. 2.1 and 2.2.  
3 Complainants' request for interim review, para. 2.3.  
4 Complainants' request for interim review, paras. 2.6 -2.9. 
5 Indonesia's comments on complainants' request for interim review, para. 8.  
6 Indonesia's comments on complainants' request for interim review, paras. 3, 8, 10, and 11.  
7 Appellate Body Report, EC – Sardines , para. 301. (fn omitted ) 
8 Panel Report, Japan – Alcoholic Beverages II , para. 5.2.  
9 See below, paras. 2.5-2.7 WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  conclusions  during the interim review stage.10 Issues of law addressed in a panel report and the 
legal interpretations developed by a panel may always be raised on appeal.  
2.4.  In our view, the complainants' requests raise questions about the merits of our analysis and 
findings, challenging the very basis of our conclusions and, therefore, go beyond the kinds of 
requests that properly fall within the scope of the interim review process envisaged in Article 15.2 
of the DSU. The complainants' requests in paragraphs 2.6 to 2. 9 of their request for interim review 
do not ask us to modify any specific paragraphs of the Interim Report. In effect, the complainants 
ask us to reconsider our objective evaluation of, and conclusions, regarding the issues addressed 
in our Report.  
2.5.  The co mplainants argue that the parties were not given a full opportunity to make 
submissions in relation to the "Panel's theory". We note, however, that while a panel must fully 
explore all pertinent issues with the parties, it is not required to engage with th e parties upon the 
findings and conclusions that it intends to make in resolving a dispute.11 The complainants in this 
dispute acknowledge that the parties "had the opportunity late in the proceedings to respond to 
questions from the Panel that are relevant  to the legal theory developed by the Panel in the 
Interim Report".12 Indeed, following Indonesia's confirmation that it did not have a binding tariff 
obligation with respect to imports of galvalume inscribed into its GATT Schedule of Concessions13, 
the part ies were specifically requested to come to the second substantive meeting prepared to 
discuss the consequences of this fact for our evaluation of the merits of the complainants' claims, 
including as elaborated in paragraphs 40 and 41 of Indonesia's second written submission.14 At the 
same time, the parties were given advance notice of four questions we intended to pose during the 
second substantive meeting with respect to the definition of a safeguard measure.15 Thus, the 
timing of our decision to explore the  parties' shared characterization of the specific duty as a 
safeguard measure reflects the fact that the issue did not concret ely arise until after the 
first substantive meeting, when Indonesia confirmed that it was "unbound" with respect to the 
level of t ariffs it was entitled to apply on imports of galvalume.16  
2.6.  After hearing the parties' views and exchange of opinions at the beginning of the second 
substantive meeting, the parties were asked to respond to, and comment upon each other's 
answers to, nine qu estions focused on inter alia  understanding their views on the defining features 
of a safeguard measure and the extent to which the specific duty challenged in this dispute 
possessed those features. This initial exchange of views and opinions lasted over 9 0 minutes. We 
returned to these issues at the very end of the meeting and asked one additional question. 
Subsequently, the parties were invited to respond to and comment upon each other's answers to 
several of the questions asked during the second substant ive meeting in writing.  
2.7.  Thus, not only were the parties aware that we had decided to closely examine the merits of 
their jointly -held view that the specific duty constituted a safeguard measure, but they were also 
given multiple opportunities to address th e relevant issues and, thereby, inform our evaluation of 
the legal and factual questions that would guide our analysis. The parties were not left to guess 
about the focus of our analysis. Indeed, the possibility that our objective evaluation might lead to 
a finding that the specific duty was not a safeguard measure must have been understood and 
anticipated by the complainants, as they requested that we make alternative findings in that 
event.17 Likewise, Indonesia argued for the rejection of the entirety of the complainants' claims 
                                                
10 Panel Report, Japan – DRAMS (Korea) , para. 6.2.  
11 Appellate Body Report, US – Large Civil Aircraft (2nd complaint) , para. 1137.  
12 Complainants' request for interim review, para. 2.2.  
13 Indonesia's response to Panel question No. 7.  
14 Panel communication to the Parties of 14 December 2016.  
15 Panel communication to the Parties of 14 December 2016.  
16 We note, in th is respect, that Indonesia was asked at the first substantive meeting to identify the 
relevant GATT 1994 obligation suspended as a result of the specific duty imposed on imports of galvalume. 
Indonesia responded by saying that it believed, but could not co nfirm at that stage, that it was a 40% duty 
rate inscribed into its GATT Article II Schedule of Concessions. Indonesia subsequently confirmed in its written 
answer to Panel questions following the first substantive meeting that it had no tariff obligation inscribed into 
its GATT Schedule of Concession for galvalume, and that it was, therefore, "unbound" with respect to that 
product. (Indonesia's response to Panel question No. 7).  
17 Complainants' comments on paragraphs 40 and 41 of Indonesia's second written  submission, 
para. 2.2. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  premised on the existence of a safeguard measure, were we to find that the specific duty was not 
a safeguard measure.18  
2.8.  In the light of these considerations, we decline the complainants' requests for review of 
Section 7.3 of the In terim Report, as set out in paragraphs 2.6 to 2.9 of their request for interim 
review. Moreover, having closely reviewed those comments, we believe that much of the 
complainants' criticism stems from their misunderstanding of our analysis and findings. We have 
made some adjustments to paragraphs 7.27 and 7.29, and footnote 63, in order to facilitate a 
clearer understanding.  
2.2  Analysis of the consequences of the fact that the specific duty was adopted 
following an investigation conducted by Indonesia's compete nt authority pursuant to 
Indonesia's safeguards legislation with a view to complying with the Agreement on 
Safeguards  
2.9.  The complainants request that we reconsider the reasoning set out in paragraphs 7.34 -7.39 
and "recognize the deference that Members should  enjoy in the qualification of their own measure 
as a safeguard measure".19 According to the complainants, the "fact that a member initiated, 
conducted and concluded an investigation pursuant to the disciplines of Article XIX and the 
Agreement on Safeguards  must be relevant for the purpose of qualifying the measure at issue".20 
Moreover, the complainants argue that "from a systemic perspective, to fail to give deference in 
the characterization of a safeguard measure to the Member imposing that measure would s eriously 
undermine the value of the procedural, notification and consultations requirements contained in 
the Agreement on Safeguards".21  
2.10.   Indonesia argues that the complainants' requests should be denied because they "clearly do 
not serve the purpose of int erim review".22  
2.11.   Contrary to the complainants' suggestion, the analysis set out in paragraphs 7.34 -7.39 does 
not state that the fact that a Member may have conducted a safeguard investigation prior to the 
adoption of a measure is irrelevant  for the purpose of the legal characterization of that measure. It 
merely emphasizes that a defining feature of a safeguard measure is not whether a measure is 
adopted following a WTO -consistent safeguards investigation, but rather whether that measure 
suspends, modifies o r withdraws the implementing Member's GATT obligations or concessions.  
2.12.   While we do not deny that a Member adopting a measure following the outcome of an 
investigation conducted under its domestic safeguard legislation will be better placed than a panel 
to describe the motivations for the imposition of that measure, this does not mean that we must 
abandon our duty to perform an objective assessment of the matter as required by Article  11 of 
the DSU. Moreover, we fail to see how undertaking an objective asse ssment of the merits of the 
imposing Member's legal characterization of a measure imposed following the outcome of a 
domestic safeguards investigation "undermine[s] the value of the procedural, notification and 
consultations" requirements of the Agreement on Safeguards. As explained in our report, 
compliance with such obligations is a prerequisite for the application of a WTO -consistent 
safeguard measure, which obviously means that those obligations cannot be avoided by a Member 
seeking to apply a valid saf eguard measure. In our view, however, a "systemic" concern would 
arise if, as the complainants suggest, a panel were precluded from making an objective 
assessment of the legal characterization of a challenged measure in a particular dispute and defer 
to the imposing Member's, or the parties' jointly held, characterization, where the panel considered 
there were grounds to doubt the merits of the parties' characterization of that measure. 
Accordingly, we deny the complainants' requests that we reconsider the reasoning set out in 
paragraphs 7.34 -7.39 and that we "recognize the deference that Members should enjoy in the 
qualification of their own measure as a safeguard measure".23 
                                                
18 Indonesia's second written submission, para. 41.  
19 Complainants' request for interim review, para. 2.18.  
20 Complainants' request for interim review, para. 2.15.  
21 Complainants' request for interim review, para. 2.16.  
22 Indonesia's  comments on complainants' request for interim review, para. 8.  
23 Complainants' request for interim review, para. 2.18.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  3  COMPLAINANTS' NON -SPECIFIC REQUESTS FO R REVIEW OF SECTION 7.5 
3.1  The complainants' cla ims under the Agreement on Safeguards and Article XIX of the 
GATT 1994 must be addressed irrespective of whether the specific duty is a safeguard 
measure  
3.1.  The complainants request that we reconsider our decision not to make any findings on the 
merits of the ir claims under the Agreement on Safeguards and Article XIX of the GATT 1994 
because they consider those claims stand alone, irrespective of our legal conclusion that the 
challenged measure, a specific import duty, is not a safeguard measure. The starting point of the 
complainants' request is the following submission:  
[T]he reference in Article 1 of the Agreement on Safeguards to "measures provided 
for in Article XIX of GATT 1994" cannot be construed as excluding from the application 
of the Agreement on Saf eguards actions other than "suspensions" of obligations.24 
3.2.  The complainants go on to find support for their argument in Article 11.1(a) of the 
Agreement on Safeguards, which provides that Members "shall not … seek any emergency action 
… unless such action c onforms" with the provisions of Article XIX applied in accordance with the 
Agreement on Safeguards. For the complainants, the prohibition on "seeking" emergency action 
means that actions such as "substantive determinations, notifications, or consultations,  would 
clearly fall under the scope of Article 11.1(a) … regardless of whether they are characterized as a 
'safeguard' measure".25 Moreover, the complainants maintain that "several provisions of the 
Agreement on Safeguards apply, by their express terms, to investigations  conducted under 
domestic safeguards law, irrespective of the outcome of that investigation process".26 In this 
respect, the complainants refer specifically to Articles 4.2(a), 8, 12.2, and 12.3 of the Agreement 
on Safeguards. However, it is a pparent from the complainants' request for review that they 
consider the same is true for all of the provisions of the Agreement on Safeguards pursuant to 
which they have brought claims (as well as Article XIX of the GATT 1994).27 Thus, the 
complainants sub mit that given "the text of the specific obligations on the substantive 
determinations – which apply to the conduct of the investigation and not to the nature of the 
measure itself – the complainants request the Panel to make rulings on their claims under the 
Agreement on Safeguards and Article XIX of the GATT 1994".28 
3.3.  Indonesia argues that the complainants' requests should be denied because they "clearly do 
not serve the purpose of interim review".29 
3.4.  The fundamental premise underlying the complainants' reque st is that Article XIX of the 
GATT  1994 and the rules and disciplines of the Agreement on Safeguards apply to measures other 
than "those provided for in Article XIX". We disagree.  
3.5.  Article 1 of the Agreement on Safeguards expressly states that the Agreemen t on Safeguards 
"establishes rules for the application of safeguard measures", which the same provision defines as 
"those measures provided for in Article XIX of GATT 1994". It must logically follow that in the 
absence of a "safeguard measure" as "provided  for in Article XIX", a Member cannot be held to the 
disciplines of the Agreement on Safeguards. A Member cannot be required to comply with rules 
governing the application of a particular kind of measure that it is not proposing to adopt or that 
does not e xist. The fact that the Agreement on Safeguards contains various provisions prescribing 
multiple obligations with respect to inter alia  substantive determinations, investigations, 
consultations and notifications, does not imply that a Member can be found t o have acted 
inconsistently with those obligations if it has not applied, or is not proposing to apply, a safeguard 
measure , within the meaning of Article 1 of the Agreement on Safeguards. Indeed, the express 
terms of Article 2 stipulate that a Member must  comply with the substantive requirements of that 
provision (which include a demonstration of serious injury as provided for in Article 4.2(a)) only if 
that Member attempts to "apply a safeguard measure  to a product". Likewise, Article 3 imposes an 
                                                
24 Complainants' request for interim review , para. 2.26.  
25 Complainants' request for interim review , para. 2.26.  
26 Complainants' request for interim review , para. 2.26. (emphasis original)  
27 Complainants' request for interim review , paras. 2.27 and 2.32 (including fn 20).  
28 Complainants' request for interim review , para. 2.27.  
29 Indonesia's comments on complainants' request for interim revi ew, para. 8.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  obligat ion to conduct an investigation consistent with the provisions of that Article as a 
prerequisite to the application of a " safeguard measure ". The existence of a safeguard measure or 
a proposal to apply or extend a safeguard measure triggers the obligation in Article 12.2 to provide 
"all pertinent information" when making notifications required pursuant to Article 12.1(b) 
and 12.1(c), and the requirement in Article 12.3 to provide "adequate opportunity for prior 
consultations". We fail to understand how a Me mber may be found to have violated any of these 
obligations in the absence of the existence of a safeguard measure  or a proposal to apply or 
extend a safeguard measure , within the meaning of Article 1 of the Agreement on Safeguards.  
3.6.  Finally, we note that t he focus of the prohibition set out in Article 11.1(a) is "emergency 
action … as set forth in Article XIX " that does not conform with Article XIX "applied in accordance" 
with the Agreement on Safeguards. Thus, contrary to the complainants' suggestion, the prohibition 
in Article 11.1(a) is expressly limited to the same universe of measures covered by Article XIX – 
that is, measures which Article 1 of the Agreement on Safeguards identifies to be "safeguard 
measures".  
3.7.  In the light of these considerations, we decline the complainants' request to reconsider our 
decision not to make findings on the merits of their claims under the Agreement on Safeguards 
and Article XIX of the GATT 1994.  
3.2  The Panel's decision not to make alternative findings does not provide a pro mpt and 
positive solution to the dispute  
3.8.  The complainants request that the Panel rule on its claims under the Agreement on 
Safeguards and Article XIX of the GATT 1994 in order to achieve a prompt and positive solution to 
the dispute in accordance with Arti cles 3.3 and 3.7 of the DSU. According to the complainants, 
alternative findings would "be crucial to the resolution of this dispute, should it proceed to the 
appellate level".30 Moreover, the complainants submit that their request is supported by the 
following two additional considerations: First, because the Pa nel acknowledged in the 
Interim  Report that "this is the first time that a WTO dispute settlement Panel has been called 
upon to rule upon the merits of claims of violation of the Agreement on Safegua rds in … a 
situation" where "all three parties have consistently argued from the very beginning of this 
proceeding that the specific duty is a safeguard measure"; and second, because the Panel has also 
recognized that its decision "departed from the view o f the Panel in the adopted panel report in 
Dominican Republic – Safeguard Measures ".31  
3.9.  Indonesia argues that the complainants' requests should be denied because they "clearly do 
not serve the purpose of interim review".32 
3.10.   By finding that the specific duty i s not a safeguard measure, we determined that the 
complainants' claims under the Agreement on Safeguards and Article XIX of the GATT 1994 have 
no legal merit and, therefore, must be dismissed. Our "objective assessment" of those claims led 
us to reject the m in their entirety, and consequently to examine the complainants' alternative 
claim under Article I:1 of the GATT 1994, which we ultimately accepted. In our view, these 
findings resolve the matter in dispute in accordance with the terms of reference of th is proceeding 
and our duty under Article 11 of the DSU. We fail to see how making alternative findings on the 
merits of claims we have determined to be unfounded could "secure a positive resolution to the 
dispute" or assist the DSB to discharge its respons ibilities under the DSU.  
3.11.   Having said that, we recognize that the particular findings we have made leave open the 
possibility that the parties could be left with no final resolution of the matter, were our legal 
characterization of the specific duty to be appealed and overturned. In this light, and bearing in 
mind that our task under Article 11 of the DSU includes not only a duty to "make an objective 
assessment of the matter" but also a duty to "make such other findings as will assist the DSB in 
making rec ommendations or in giving rulings", we have set out an exposition of relevant facts, 
which we believe would be helpful to any potential subsequent evaluation of the merits of the 
parties' claims under the Agreement on Safeguards and Articles  XIX:1(a) and X IX:2 of the 
GATT  1994.  
                                                
30 Complainants' request for interim review , para. 2.31.  
31 Complainants' request for interim review , para. 2.31.  
32 Indonesia's comments on complainants' request for interim review, para. 8.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  3.12.   Finally, we note that it is well established that the common understanding of the parties in 
dispute is not "in and of itself dispositive" of a particular issue and it cannot, therefore, supplant 
the objective assessment that a panel  is required to perform under the terms of Article 11 of the 
DSU.33 It follows that, as a matter of law, the fact that the parties in this proceeding may have 
argued that the specific duty is a safeguard measure is not determinative of the legal 
characteriz ation of that duty under Article XIX of the GATT 1994 and the Agreement on 
Safeguards. As our detailed analysis shows, we did not lightly dismiss the parties' arguments, but 
very carefully examined and explored them with the parties at the first available opportunity after 
Indonesia confirmed that it had no binding tariff obligation inscribed into its GATT Schedule of 
Concessions for imports of galvalume. Ultimately, the parties' submissions (including their reliance 
on the unappealed panel report in Domini can Republic – Safeguard Measures  – which we have 
explained differed in several important respects from the present dispute34) did not convince us of 
the merits of their position.  
3.13.   Accordingly, we deny the complainants' request that the Panel rule on its cla ims under the 
Agreement on Safeguards and Article XIX of the GATT 1994.35  
4  SPECIFIC REQUESTS FO R REVIEW SUBMITTED B Y THE PARTIES  
4.1  Paragraph 7.24 of the Interim Report  
4.1.  The complainants request that we reformulate the description of their arguments in 
paragra ph 7.24 of the Interim Report by deleting the terms "the parties argue that".36 Indonesia 
did not specifically comment on the complainants' request. We have deleted the entirety of 
paragraph 7.24 from the Interim Report.  
4.2  Paragraph 7.30  
4.2.  The complainants req uest that we identify the specific "statements and findings" of the panel 
report in Dominican Republic – Safeguard Measures  from which our views depart.37 Indonesia did 
not specifically comment on the complainants' request. We decline the complainants' requ est. In 
our view, paragraph 7.30 and its accompanying footnotes are sufficiently clear and explain the 
divergence between the views we express in the preceding paragraphs and those of the panel in 
Dominican Republic – Safeguard Measures.  
4.3  Paragraph 7.33  
4.3.  The complainants request that we modify this paragraph to more accurately reflect their 
argument that the alleged suspension of Article I:1 of the GATT 1994, in connection with the fact 
that Indonesia conducted a safeguard investigation and made all relevant notifications under 
Article 12 of the Agreement on Safeguards, indicate that the specific duty is a safeguard 
measure.38 Indonesia did not specifically comment on the complainants' request. We have made 
the requested modification and made consequential adju stments to paragraphs 7.34 and 7.39.  
4.4  Paragraphs 7.38 and 7.39  
4.4.  The complainants submit that in these paragraphs, the Panel made an "inference that … 
Members could make a policy choice not to impose a safeguard measure (and that Indonesia did 
so)", and that such an "inference" is "nothing more than conjecture".39 According to the 
complainants, there "was no evidence before the Panel that Indonesia, at the end of the safeguard 
investigation, considered imposing something other than a safeguard measure or might have 
                                                
33 Panel Report, China – Publications and Audiovisual P roducts , para. 6.46.  
34 Panel Report, fn 61. 
35 Our findings on this point also cover the complainants' analogous requests for alternative findings on 
the merits of their claims in Sections 7.5.3 and 7.5.4 of the Final Report. (Complainants' request for inte rim 
review, paras. 2.46, 2.47, and 2.49).  
36 Complainants' request for interim review, para. 2.10.  
37 Complainants' request for interim review, para. 2.10.  
38 Complainants' request for interim review, para. 2.12.  
39 Complainants' request for interim review, pa ra. 2.21.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  policy reasons for doing so".40 The complainants request us to identify "where in the record there 
was evidence that Indonesia made a policy decision not to impose a safeguard measure in this 
case" or otherwise "delete the relevant paragraphs".41 Indone sia has not specifically responded to 
the complainants' request.  
4.5.  Paragraph 7.38 quotes Indonesia's own explanation  of why it decided to impose the specific 
duty by resorting to a process that involved conducting an investigation under its domestic 
safeguar d legislation. As we note in the same paragraph, Indonesia's explanation reveals that 
Indonesia was fully aware that it was entitled to unilaterally increase its applied tariff on imports of 
galvalume, but that, nevertheless, it considered that "rationaliz ation and proper procedures to 
increase or reduce tariffs … are necessary as the basis of government policy". Indonesia identified 
"this" – i.e. "rationalization and proper procedures to increase or reduce tariffs … as the basis of 
government policy" – as the reason "why Indonesia opted for the safeguard proceeding" under its 
domestic law.  
4.6.  As we highlight in paragraph 7.38, absent from Indonesia's explanation of why it opted for a 
safeguard proceeding is any statement, or even implication, that it consider ed itself bound to do 
so, by its obligations under the Agreement on Safeguards and Article XIX of the GATT 1994, before 
imposing the specific duty at issue. Rather, Indonesia explicitly states that it followed its chosen 
course of action for reasons relate d to "government policy".  
4.7.  In our judgement, the analysis contained in paragraphs 7.38 and 7.39 does not need to be 
explained any further and is sufficiently justified and supported by relevant evidence. In this 
regard, we note that Indonesia did not reque st any changes to our analysis, including our 
characterization of its statement quoted in paragraph 7.38, either in its requests for interim 
review, or in its comments on the complainants' requests for interim review. Accordingly, we deny 
the complainants'  requests. Nevertheless, to avoid confusion, we have modified parts of the text of 
paragraph 7.38 to facilitate a clearer understanding of our reasoning.  
4.5  After paragraph 7.39  
4.8.  The complainants request that we account in the Final Report for the wording of Regulation 
No. 137.1/PMK.011/2014, which expressly describes the specific duty as a safeguard measure, 
and for the differences between this regulation and Regulation No. 97/PMK.010/2015, pursuant to 
which Indonesia imposed an ordinary duty on imports of ga lvalume.42 Indonesia has not 
specifically responded to the complainants' request.  
4.9.  We have modified paragraphs 7.33, 7.34, 7.38, 7.39 and 7.40d to address the 
complainants'  request concerning Regulation No. 137.1/PMK.011/2014. However, in the light of 
our a nalysis and reasoning, we do not believe it is necessary to address the differences between 
the wording of Regulation No. 137.1/PMK.011/2014 and Regulation No. 97/PMK.010/2015. We, 
therefore, decline this part of the complainants' request.  
4.6  Paragraph 7.43  
4.10.   Indonesia requests that two sentences be inserted into this paragraph to record its view 
that the complainants' shifted the focus of their arguments with respect to the exclusion of 
120 countries from the scope of application of the specific duty during th e course of the 
proceeding.43 The complainants ask us to deny Indonesia's request, arguing inter alia  that 
Indonesia has not explained why the statements made in the two sentences are essential to our 
findings under Article I:1 of the GATT 1994.44  
4.11.   Paragraph  7.43 describes Indonesia's response to the complainants' claim that the specific 
duty, as a stand -alone measure, is inconsistent with Article I:1 of the GATT 1994. We do not find 
the substance of the two sentences at issue to be relevant to the exposition  of Indonesia's 
                                                
40 Complainants' request for interim review, para. 2.21.  
41 Complainants' request for interim review, para. 2.21.  
42 Complainants' request for interim review, paras. 2.22 and 2.23.  
43 Indonesia's request for interim review, paras. 4 -6. 
44 Complainants ' comments on Indonesia's request for interim review, para. 2.3.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  arguments in this paragraph and, more generally, to our disposition of the complainants' claims 
under Article I:1 of the GATT 1994. Accordingly, we deny Indonesia's request.  
4.7  Paragraph 7.48  
4.12.   The complainants request that we refer in this para graph to their argument that a mere 
reference to Indonesia's MFN and preferential duty rates is different from the identification of 
"obligations incurred under the GATT" and that, to comply with the requirement of 
Article  XIX:1(a), KPPI should have identi fied those relevant obligations with a reasoned and 
adequate explanation.45 Indonesia has not specifically responded to the complainants' request.  
4.13.   We deny the complainants' request. In our view, the specific argument is sufficiently 
captured in the broader argument that is summarized at point (c) of this paragraph.  
4.8  Paragraph 7.49  
4.14.   Indonesia requests that this paragraph be modified to more fully reflect its arguments 
concerning KPPI's findings of unforeseen developments.46 Indonesia and the complainants request  
that the word "knew" be replaced with "understood" in the first sentence.47 We have amended 
paragraph 7.49 to more accurately reflect Indonesia's arguments.  
4.9  Paragraph 7.56  
4.15.   Indonesia requests that three specific changes be made to our exposition in this par agraph 
of the relevant facts surrounding KPPI's findings in relation to "unforeseen developments" in the 
Final Disclosure Report. Indonesia asks that we: (a) add a sentence stating that the 2008 global 
financial crisis was described in section C.5 of KPPI' s Final Disclosure Report, which is entitled 
"Unforeseen Development"; (b) delete the statement that the Final Disclosure Report contained no 
specific reference to any data, statistics, submissions, or underlying studies to support "the change 
in the raw m aterials preferences", as Indonesia considers that such data was referred to in the 
consumption information provided in section C.3.1; and (c) delete our conclusion with respect to 
the quality of the evidentiary basis for KPPI's unforeseen development find ings.48 The 
complainants request that we deny all three of Indonesia's specific requests.49  
4.16.   We decline all three of Indonesia's requests. In our view, paragraph 7.56 accurately 
describes the relevant facts regarding KPPI's findings of "unforeseen developmen ts" as presented 
in the Final Disclosure Report.   
4.10  Paragraph 7.57  
4.17.   Indonesia requests that the last sentence in this paragraph be deleted and replaced with a 
statement of its argument that KPPI identified Indonesia's obligations under Article I:1 of the 
GATT  1994 in Table 3 of the Final Disclosure Report.50 The complainants consider that Indonesia's 
request is factually incorrect and misplaced, and ask that we deny it.51 Separately, the 
complainants request that we make a finding on whether the relevant facts d emonstrate that KPPI 
provided a reasoned and adequate explanation of the unforeseen developments and effect of 
Indonesia's GATT obligations in the Final Disclosure Report.52 Indonesia did not specifically respond 
to the complainants' request.  
4.18.   In our view, t he contents of Table 3 of the Final Disclosure Report are already accurately 
described in paragraph 7.57. Likewise, we consider the final sentence of paragraph 7.57 to 
accurately reflect the extent to which the Final Disclosure Report contained any specifi c 
                                                
45 Complainants' request for interim review, para. 2.33.  
46 Indonesia's request for interim review, paras. 7 -10. 
47 Indonesia's request for interim review, para. 9; complainants' request for int erim review, 
paras.  2.34 and 2.35.  
48 Indonesia's request for interim review, paras. 11 -14. 
49 Complainants' comments on Indonesia's request for interim review, paras. 2.8 -2.17. 
50 Indonesia's request for interim review, paras. 15 -18. 
51 Complainants' comments  on Indonesia's request for interim review, paras. 2.18 -2.20. 
52 Complainants' request for interim review, para. 2.36.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  consideration of Indonesia's obligations under the GATT 1994 by KPPI. We therefore, deny 
Indonesia's request.  
4.19.   Turning to the separate request made by the complainants to make findings on whether 
KPPI complied with its obligation to provide a reasoned an d adequate explanation of its 
determination, we recall that we have decided not to make alternative findings in this dispute, and 
have explained our reasons for not doing so in the Final Report and elsewhere in our disposition of 
the parties' interim revie w requests. Accordingly, we deny the complainants' request.  
4.11  Paragraph 7.61  
4.20.   Indonesia requests that this paragraph be amended to capture the full range of arguments 
it presented during the course of the proceeding.53 The complainants submit that the addition al 
arguments that are the subject of Indonesia's request are not essential to our analysis, and 
accordingly consider that it is not necessary to include them in the Final Report.54 Separately, the 
complainants request that we insert an additional paragraph after paragraph 7.61 to reflect their 
response to Indonesia's arguments already recorded in paragraph 7.61.55  
4.21.   We have added the first two sentences of the text proposed by Indonesia in order to more 
fully reflect its arguments, and we have likewise inserte d an additional paragraph after 
paragraph  7.61 to reflect the complainants' response to Indonesia's arguments concerning Ukraine 
– Passenger Cars .  
4.12  Paragraph 7.66  
4.22.   Indonesia requests that the following two additional pieces of information be added to the 
description of relevant facts set out in this paragraph: (a) that im ports of galvalume increased 
in 2013; and (b) that the import data in the petition (including data relating to the first half of 
2012) was prepared by the petitioners with a view to providin g prima facie  evidence of the 
increase in imports.56 The complainants invite us to reject Indonesia's requested changes, arguing 
that the Panel is not empowered to review or make a finding on a fact in relation to the level of 
imports in 2013, as it was not  assessed by KPPI in its Final Disclosure Report. As regards the 
import data shown in the petition, the complainants contend that they could not have been 
prepared by the petitioners since the information on KPPI's record points to the Indonesian 
Statistic s Bureau as the source of this import data.57  
4.23.   Separately, the complainants request that paragraph 7.66 be modified to correctly state the 
POI used in the underlying investigation and to note their opposition to Indonesia's assertion that 
the Indonesian Sta tistics Bureau does not officially publish half -yearly import statistics by 
country.58 The complainants also request that we make a finding on the question of whether KPPI 
had access to the data for the first half of 2013.59 Indonesia did not specifically re spond to the 
complainants' requests.  
4.24.   We do not believe it is necessary or appropriate, given the purpose of this part of our report 
and the fact that part of the additional information Indonesia seeks to add was not on the record 
of KPPI's investigation, t o incorporate that additional information into paragraph 7.66. We have, 
however, modified paragraph 7.66 to address the complainants' specific requests, but have not 
made any findings on the question identified in the complainants' request for review becau se of a 
lack of relevant facts on the record.  
4.13  Paragraph 7.67  
4.25.   The complainants request several modifications to this paragraph. Indonesia has not 
specifically commented on any of the complainants' requests. The first modification requested by 
                                                
53 Indonesia's request for interim review, paras. 19 -22. 
54 Complainants' comments on Indonesia's request for interim review, paras. 2.21 an d 2.22.  
55 Complainants' request for interim review, para. 2.37.  
56 Indonesia's request for interim review, paras. 23 -26. 
57 Complainants' comments on Indonesia's request for interim review, paras. 2.28 -2.31. 
58 Complainants' request for interim review, paras.  2.38-2.41. 
59 Complainants' request for interim review, para. 2.42.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  the complainan ts is an amendment to reflect the allegation that Chinese Taipei and Viet Nam were 
not kept informed by KPPI about the evolution of Indonesia's safeguard investigation "until the 
period immediately preceding Indonesia's notification of 27 May 2014".60 We ha ve examined the 
alleged evidentiary basis referred to by the complainants (Exhibit TPKM/VNM -16) and consider that 
it does not support the allegation. In addition, we note that the extent to which the complainants 
communicated with KPPI is elaborated in par agraphs 7.133 through 7.141, where it is explained 
that the complainants were not informed by KPPI about the progress of the domestic safeguard 
investigation before 27 May 2014. In light of this, we do not consider it is necessary to make the 
requested cha nges to this paragraph.  
4.26.   The complainants remaining requests for changes to paragraph 7.67 are the replacement of 
the adverb "verbally"  with "orally" , the insertion between "KPPI" and "around" of "of the outcome 
of the investigation", and the use of the adj ective "Vietnamese" instead of "Viet Namese".61 We 
have made the requested changes.  
4.14  Paragraph 7.69  
4.27.   The complainants request that findings be made on whether KPPI's determination was 
consistent with Article XIX:1(a) of the GATT 1994 and with Articles 2.1, 3. 1, 4.2(a), and 4.2(c) of 
the Agreement on Safeguards or, alternatively, that a factual finding be made on whether, and if 
so, when KPPI, had access to the import data relating to the first part of 2013 in the course of the 
safeguard investigation.62 
4.28.   We reca ll that we have decided not to make alternative findings in this dispute, and have 
explained our reasons for not doing so in the Final Report and elsewhere in our disposition of the 
parties' interim review requests. Moreover, in our view, the facts describ ed in paragraphs 7.65 
to 7.69 are a sufficient basis to determine the merits of the complainants "increased imports" 
claims. Accordingly, we deny the complainants' request.  
4.15  Paragraph 7.71  
4.29.   Indonesia requests that this paragraph be modified to more accurate ly reflect its arguments 
relating to the meaning of the words "relative terms" in Article 4.2(a) of the Agreement on 
Safeguards and, in particular, to convey that Indonesia believes compliance with this provision 
does not require Members to examine increas ed imports in each and every case only relative to 
production.63 The complainants ask that we deny Indonesia's request, arguing that Indonesia's 
request is inconsistent with its position in this proceeding.64 
4.30.   We believe that the complainants may have misunde rstood Indonesia's requested change. 
Indonesia has never suggested during the course of this proceeding that the expression "relative 
terms" in Article 4.2(a) could not include "domestic production". Rather, Indonesia views this 
expression as allowing the competent authority to compare the increase in imports of the subject 
product with a range of factors which may, but need not necessarily , include domestic production. 
We have decided to grant Indonesia's request and have reformu lated its argument in 
parag raph 7.71 to reflect the requested change.  
4.16  Paragraph 7.77  
4.31.   Indonesia requests that the fact that KPPI made a finding with respect to increased imports 
relative to domestic consumption be recorded in this paragraph.65 The complainants have not 
specifically co mmented on Indonesia's request. We have made an appropriate change in 
accordance with Indonesia's request.  
                                                
60 Complainants' request for interim review, para. 2.43.  
61 Complainants' request for interim review, para. 2.44.  
62 Complainants' request for interim review, para. 2.45.  
63 Indonesia's reques t for interim review, paras. 27 -30. 
64 Complainants' comments on Indonesia's request for interim review, paras. 2.32 and 2.33.  
65 Indonesia's request for interim review, paras. 31 and 32.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  4.17  Paragraph 7.78  
4.32.   Indonesia requests that the observation about the petitioners' performance in the first 
sentence of this paragraph be rephrased using more neutral language. In addition, Indonesia asks 
that the reference to the 34% increase in national consumption be deleted from this paragraph as, 
in its view, it does not qualify as an indicator of the performance of the petitioners.66 The 
complainants a rgue that Indonesia's first requested change is unjustified as the Panel is entitled to 
evaluate the facts and reflect that perspective in its findings.67  
4.33.   We have reformulated the first sentence of paragraph 7.78 to grant Indonesia's first 
request, but hav e not accepted Indonesia's second requested change, in the light of the changes 
made to the first sentence of this paragraph.  
4.18  Paragraph 7.80  
4.34.   Indonesia requests that the description of the relevant facts in paragraph 7.80 be modified 
to: (a) explain that th e "trend" was determined using the LOGEST function, which Indonesia 
submits ensured that "KPPI was not comparing the number based on end -to-end points"; 
(b) clarify that the complainants' evidence (Exhibit TPKM/VNM -35) (BCI) is disputed by Indonesia; 
and (c) indicate as a relevant fact that the petitioners' highest market share between 2010 and 
2012 remained lower than their market shares at the beginning of the POI in 2008 and 2009, and 
that the imports' market share continuously increased between 2008 and  2012 except in 2009.68 
The complainants request that we reject Indonesia's proposed changes, arguing that the Final 
Disclosure Report does not support a finding by the Panel that the "trends" measuring the 
performances of several serious injury indicators and calculated on the basis of the LOGEST 
function do not result from a mere comparison of end points. As regards Indonesia's other 
requested changes, the complainants argue that the Panel required to neither discuss each and 
every factual element that is before it nor accept the same meaning and weighting of the evidence 
that is advanced by Indonesia.69 
4.35.   We have modified the exposition of relevant facts in this paragraph to reflect Indonesia's 
third request. Our understanding of the relevance of the LOGEST f unction, as described by 
Indonesia during the course of the proceeding, is already described in footnote 158 a nd, therefore, 
does not need to be included in this paragraph. In addition, we do not find it necessary to specify 
in paragraph 7.80 that Indonesi a disputes Exhibit TPKM/VNM -35 (BCI), as this is already apparent 
from paragraph 7.81.  
4.19  Paragraph 7.81  
4.36.   Indonesia requests that the statement in the last sentence of paragraph 7.81 be deleted 
and replaced with a different formulation because it represents a conclusion in relation to the 
information presented in Exhibit TPKM/VNM -35 (BCI), which Indonesia disputes. Moreover, 
Indonesia notes that it was "never requested [by the Panel] to disclose all actual figures 
concerning injury indicators during the course of [the] proceeding".70 The complainants request 
that Indonesia's request be denied, arguing that the figures listed in Exhibit TPKM/VNM -35 (BCI) 
accurately match the figures that must have supported the calculation of the indexed numbers 
relied upon by KPP I in its Final Disclosure Report, and that the Panel was empowered to treat the 
content of Exhibit TPKM/VNM -35 (BCI) as a relevant and objective fact.71 
4.37.   During the course of the proceeding, Indonesia was asked whether it accepted the 
calculations set out in  Exhibit TPKM/VNM -35 (BCI), and if not, to explain why not.72 Indonesia was 
also given the opportunity to comment on the complainants' explanation of the methodology used 
to derive the information contained in Exhibit TPKM/VNM -35 (BCI).73 However, Indonesia' s 
                                                
66 Indonesia's request for interim review, paras. 33 and 34.  
67 Complain ants' comments on Indonesia's request for interim review, para. 2.34.  
68 Indonesia's request for interim review, paras. 35 -37. 
69 Complainants' comments on Indonesia's request for interim review, paras. 2.35 and 2.36.  
70 Indonesia's request for interim review , paras. 38 -40. 
71 Complainants' comments on Indonesia's request for interim review, paras. 2.37 and 2.38.  
72 Panel question No. 64.  
73 Panel question No. 69.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  submissions in reply merely asserted, without referring to any evidence , that the data underlying 
KPPI's analysis was different from the data used to make the calculations in Exhibit TPKM/VNM -35 
(BCI). Thus, although Indonesia was not explicitly requeste d to disclose all actual figures used in 
KPPI's determination, Indonesia could clearly have substantiated its rejection of the 
complainants'  calculations by disclosing such information. However, Indonesia did not do so, and 
did not otherwise substantiate i ts position. In this circumstance, we believe that the conclusion we 
have made in paragraph 7.81 is justified and appropriate for the purpose of this particular section 
of our report. Accordingly, we deny Indonesia's request.  
4.20  Paragraph 7.84  
4.38.   Indonesia reque sts that the last two sentences of paragraph 7.84 be deleted, as they 
amount to the expression of a "perception" held by the Panel in relation to a disputed fact.74 The 
complainants submit that Indonesia's request should be denied, arguing that the Panel's 
observation that the Final Disclosure Report contains no finding on the imminence of serious injury 
qualifies as a relevant factual finding that the Panel was empowered to make.75 Separately, the 
complainants request that we make a finding on whether KPPI's  determination was consistent with 
Articles 2.1, 3.1, 4.1(a), 4.1(b), 4.2(a), and 4.2(c) of the Agreement on Safeguards or, at the very 
least, on whether KPPI provided a reasoned and adequate explanation of the threat of serious 
injury to the domestic indu stry.76  
4.39.   The statements in paragraph 7.84 concerning the extent to which KPPI addressed the 
imminence of serious injury reflect our objective assessment of KPPI's analysis, as set out in the 
Final Disclosure Report. We consider these statements shed light o n facts that are relevant to the 
evaluation of the consistency of KPPI's investigation with Indonesia's obligations under the 
Agreement on Safeguards. Accordingly, we deny Indonesia's request.  
4.40.   Turning to the complainants' separate request for review, we re call that we have decided 
not to make alternative findings in this dispute, and have explained our reasons for not doing so in 
the Final Report and elsewhere in our disposition of the parties' interim review requests. 
Accordingly, we deny the complainants'  request in this respect.  
4.21  Paragraph 7.93  
4.41.   The complainants request that the reference to "2010 and 2011" in this paragraph be 
replaced by "2008 and 2009" to correctly reflect the underlying facts.77 Indonesia has not 
specifically commented on the complainant s' request. We have made the requested change.  
4.22  Paragraph 7.98  
4.42.   The complainants request that we amend the characterization of their argument concerning 
KPPI's assessment of installed capacity to more accurately reflect its submission.78 Indonesia has 
not sp ecifically commented on the complainants' request. We have made the requested change.  
4.23  Paragraph 7.101  
4.43.   Indonesia requests that the words "in five sentences" contained in the first sentence of 
paragraph 7.101 be replaced with "in paragraph 60 – 63".79 The com plainants request that 
Indonesia's request be denied or, alternatively, that the following formulation be used instead: "in 
five sentences contained in paragraphs 60 to 63".80  
4.44.   We have substituted "in five sentences contained in pa ragraphs 60 to 63" for "in  
five sentences" in response to this request.  
                                                
74 Indonesia's request for interim review, paras. 41 -43. 
75 Complainants' comments on Indonesia's requ est for interim review, paras. 2.39 and 2.40.  
76 Complainants' request for interim review, para. 2.48.  
77 Complainants' request for interim review, para. 2.50.  
78 Complainants' request for interim review, para. 2.51.  
79 Indonesia's request for interim review, paras. 44 -46. 
80 Complainants' comments on Indonesia's request for interim review, para. 2.41.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  4.24  Paragraph 7.102  
4.45.   Indonesia requests that the description of the relevant facts presented in paragraph 7.102 
be modified to: (a) explain that the LOGEST function used to derive the data analysed by KPPI 
ensured that KPPI was not making end -point to end -point comparisons; and (b) indicate that the 
petitioners' highest market share between 2010 and 2012 remained lower than their market 
shares at the beginning of the POI in 2008 and 2009, and that the market share h eld by imports 
continuously increased between 2008 and 2012 except in 2009.81 The complainants submit that 
Indonesia's requests should be denied, arguing that the Final Disclosure Report does not support a 
finding that the "trends" based on the LOGEST funct ion necessarily lead to the conclusion that 
KPPI's analysis did not involve a mere comparison of end points. As regards Indonesia's second 
requested change, the complainants consider that this constitutes a request to introduce factual 
findings that were n ot considered relevant by the Panel and that it should, accordingly, be 
rejected.82 Separately, the complainants request that the Panel make a finding on whether "the 
data and facts assessed in these proceedings support KPPI's conclusion that the 
petitioner s' market share decreased because it was absorbed by the market share of imports".83 
4.46.   We have modified the exposition of relevant facts in this paragraph to account for 
Indonesia's second request. Our understanding of the relevance of the LOGEST function, as  
explained by Indonesia during the course of the proceeding, is already described in footnote 158 
and, therefore, does not need to be included in this paragraph. As regards the 
complainants'  specific request to make findings with respect to the extent to w hich the data and 
facts substantiate KPPI's determination, we recall that we have decided not to make alternative 
findings in this dispute, and have explained our reasons for not doing so in the Final Report and 
elsewhere in our disposition of the parties'  interim review requests. Moreover, in our view, the 
facts described in paragraphs 7.101 to 7.103 are a sufficient basis to determine the merits of the 
complainants' "causation" claims. Accordingly, we deny the complainants' request.  
4.25  Paragraph 7.103  
4.47.   The co mplainants request that we make findings on whether KPPI's determination is 
consistent with Article XIX:1(a) of the GATT 1994 and with Articles 2.1, 3.1, 4.2(a), and 4.2(c) of 
the Agreement on Safeguards or, at the very least, on whether KPPI provided a re asoned and 
adequate explanation of the causal relationship between the alleged increase in imports and the 
threat of serious injury to the domestic industry.84  
4.48.   We recall that we have decided not to make alternative findings in this dispute, and have 
explai ned our reasons for not doing so in the final report and elsewhere in our disposition of the 
parties' interim review requests. Accordingly, we deny the complainants' request.  
4.26  Paragraph 7.105  
4.49.   The complainants maintain that the description of their arguments  contained in this 
paragraph misrepresents the submissions made during the course of this proceeding, with respect 
to the different legal bases the complainants' rely upon to make out their claims. The complainants 
request that this paragraph be amended to  more accurately reflect their arguments.85 Indonesia 
has not specifically commented on the complainants' request. We have revised the summary of the 
complainants' arguments in paragraphs 7.104 and 7.105 in the light of the complainants' own 
summary of thei r arguments as set out in their request for interim review.  
4.27  Paragraph 7.110  
4.50.   The complainants argue that, as currently drafted, paragraph 7.110 could be interpreted to 
suggest that the lack of availability of import data relating to the narrower product typ e precluded 
KPPI from undertaking a segregated analysis of the types of the subject product whose thickness 
does not exceed 1.2mm and those types whose thickness does not exceed 0.7mm. According to 
                                                
81 Indonesia's request for interim review, paras. 47 -49. 
82 Complainants' comments on Indonesia's request for interim review, paras. 2.42 and 2.43.  
83 Complainants' request for interim review, para. 2.52.  
84 Complainants' request for interim review, para. 2.53.  
85 Complainants' request for interim review, paras. 2.54 -2.58. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  the complainants, Indonesia confirmed that it possessed re levant injury data with respect to the 
narrower product types with a thickness not exceeding 0.7 mm. The complainants request that 
this fact be reflected in paragraph 7.110.86 
4.51.   The complainants furthermore request that paragraph 7.110 refer to the fact that KPPI did 
not undertake a segregated analysis of the models of the subject product with thickness not 
exceeding 1.2 mm and thickness not exceeding 0.7 mm.87 Finally, the complainants also request 
that we make findings on the merits of their claims under the Agreement on Safeguards or, at a 
minimum, that we find whether, in the light of the record, a segregated analysis of injury caused 
by the narrower product types was practically feasible.88 Indonesia did not specifically respond to 
the complainants' requests . 
4.52.   We do not believe that the current formulation of paragraph 7.110 conveys the conclusion 
that the complainants are deriving from the observation regarding the lack of availability of import 
data relating to the narrower product types. Accordingly, we den y the complainants' request to 
modify paragraph 7.110 so as to reflect the fact that Indonesia possessed relevant injury data with 
respect to the narrower product types. However, we have decided to reflect in paragraph 7.109 
the fact that KPPI's determinat ion did not contain a segregated analysis of the narrower and 
broader product types. Finally, as regards the complainants' specific request to make findings on 
the merits of their claims, we recall that we have decided not to make alternative findings in t his 
dispute, and have explained our reasons for not doing so in the Final Report and elsewhere in our 
disposition of the parties' interim review requests. Moreover, in our view, the facts now described 
in paragraphs 7.109 and 7.110 are a sufficient basis t o determine the merits of the complainants 
"parallelism" claims. Accordingly, we deny the complainants' request.  
4.28  Paragraph 7.111  
4.53.   The complainants request that this paragraph be amended so as to more accurately reflect 
their relevant arguments.89 Indonesia h as not specifically commented on the 
complainants'  request. We have replaced the text of paragraph 7.111 with all but the last sentence 
of the text proposed by the complainants in their interim review request. In our view, the 
argument set out in the last sentence of the text proposed by the complainants is already reflected 
in paragraph 7.113.  
4.29  Paragraph 7.112  
4.54.   Indonesia requests that this paragraph be amended to more fully reflect its arguments.90 
The complainants have not specifically commented on Indonesia 's request. We have made the 
requested modification.  
4.55.   The complainants separately request that we identify references for the statements made in 
the first and the second sentences of paragraph 7.112.91 Indonesia has not specifically commented 
on the complain ants' request. We have inserted two new footnotes identifying the supporting 
references.  
4.30  Paragraph 7.113  
4.56.   The complainants request that this paragraph be amended in two places to more fully 
reflect their arguments.92 Indonesia has not specifically commented  on the complainants' request. 
We have modified paragraph 7.113 in the light of the textual additions proposed by the 
complainants in their request for interim review.  
                                                
86 Complainants' request for interim review, paras. 2.59 -2.61. 
87 Complainants' request for interim review, para. 2.62.  
88 Complainants' request for interim review, para. 2.63.  
89 Complainants' request for interim review, para. 2.64.  
90 Indonesia's request for interim review, paras. 50 -52. 
91 Complainants' request for interim review, para. 2.65.  
92 Complainan ts' request for interim review, paras. 2.66 and 2.67.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  4.31  Paragraph 7.118  
4.57.   The complainants request that we delete the adverb "however", which cont rasts the first 
sentence with the second sentence of paragraph 7.118.93 Indonesia did not specifically comment 
on the complainants' request. We do not find it appropriate to make the requested change. In our 
view, it is clear from a comparison between the W TO panel reports in Ukraine – Passenger Cars , 
Korea – Dairy , and  US – Wheat Gluten  on the one hand and the Appellate Body report in US – 
Wheat Gluten on the other hand, that the three panels, unlike the Appellate Body, appear to have 
viewed Article 12.2 of  the Agreement on Safeguards as placing a timeliness requirement on 
Members with respect to the obligation to provide the requisite pertinent information. Accordingly, 
we deny the complainants' request.  
4.32  Paragraph 7.123  
4.58.   The complainants request that we make  findings on whether Indonesia's notifications of 
26 May 2014 and of 23 July 2014, separately and taken together, satisfy the requirements of 
Article 12.2 of the Agreement on Safeguards or, at a minimum, that we find whether the facts 
demonstrate that Indo nesia's relevant notifications contain all pertinent information.94 
4.59.   We recall that we have decided not to make alternative findings in this dispute, and have 
explained our reasons for not doing so in the Final Report and elsewhere in our disposition of the 
parties' interim review requests. Moreover, in our view, the facts described in paragraphs 7.11 9 
to 7.123 are a sufficient basis to determine the merits of the complainants' "notification" claims. 
Accordingly, we deny the complainants' request.  
4.33  Paragraphs 7.124 -7.126  
4.60.   The complainants request that we elaborate further upon their arguments with respect to 
their claim under Article 12.3 of the Agreement on Safeguards.95 Indonesia did not specifically 
comment on the complainants' request. We have added one sente nce to the end of 
paragraph  7.124, reflecting the first sentence of the text the complainants proposed could be 
inserted into this part of the report.  
4.34  Paragraph 7.125  
4.61.   The complainants request that the correct legal basis for their claims be inserted into t his 
paragraph and that footnote 254 be amended so that it better supports the fifth sentence of 
paragraph 7.125.96 Indonesia did not specifically comment on the complainants' request. We have 
made the requested changes.  
4.35  Paragraph 7.133  
4.62.   The complainants req uest that we add two sentences to this paragraph in order to fully 
reflect the alleged facts pertaining to the conduct of the investigation.97 Indonesia did not 
specifically comment on the complainants' request. We have made the first of the two proposed 
changes, but not the second, which is not supported by Exhibit TPKM/VNM -16, upon which the 
complainants' rely.  
4.36  Paragraph 7.136  
4.63.   The complainants request that this paragraph be amended to reflect the fact that one of the 
reasons Viet Nam identified for not bei ng able to attend the consultations meeting in Indonesia 
was because they had been given "such short notice".98 Indonesia did not specifically comment on 
the complainants' request. We have made the requested modification.  
                                                
93 Complainants' request for interim review, para. 2.69.  
94 Complainants' request for interim review, para. 2.70.  
95 Complainants' request for interim review, paras. 2.71 and 2.72.  
96 Complainants' request for interim review, paras. 2.73 -2.76. 
97 Complainants' request for interim review, para. 2.77.  
98 Complainants' request for interim review, paras. 2.78 and 2.79.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  4.37  Paragraph 7.140  
4.64.   The complainants re quest that this paragraph be amended to identify the date on which 
Chinese Taipei reminded KPPI of its "pre -consultations" obligations under Article 12.3.99 Indonesia 
did not specifically comment on the complainants' request. We have made the requested 
modification.  
4.38  Paragraph 7.141  
4.65.   The complainants request that this paragraph be amended to identify the entire legal bases 
of their claims. In addition, the complainants request that we make a finding on whether Indonesia 
provided an adequate opportunity for pri or consultations within the meaning of Article XIX:2 of the 
GATT 1994 and Article 12.3 of the Agreement on Safeguards or, at a minimum, that we make a 
finding on whether the facts demonstrate that Indonesia provided an adequate opportunity for 
prior consul tations.100 Indonesia did not specifically comment on the complainants' request. We 
have made the requested modification.  
4.66.   We have made the first requested change. As regards the complainants' specific request to 
make findings on the merits of their claims, w e recall that we have decided not to make alternative 
findings in this dispute, and have explained our reasons for not doing so in the Final Report and 
elsewhere in our disposition of the parties' interim review requests. Moreover, in our view, the 
facts d escribed in paragraphs 7.133 to 7.141 are a sufficient basis to determine the merits of the 
complainants' "consultation" claims. Accordingly, we deny the complainants' request.  
4.39  Paragraph 8.2  
4.67.   The complainants request that we state in our conclusions and rec ommendations that, in 
the light of our finding that the specific duty is not a safeguard measure, there is no legal basis 
under the Agreement on Safeguards to support the continued application of the specific duty as an 
extended safeguard measure.101 Indones ia did not specifically comment on the 
complainants'  request. We consider that it is not necessary to make the requested finding, as it is 
already evident from our report that a measure that is not a safeguard measure does not fall 
within the scope of the rights and disciplines set out in the Agreement on Safeguards, which 
include, of course, the right to extend a safeguard measure.  
4.40  Paragraph 8.4  
4.68.   The complainants request, on the assumption that we reconsider our findings and determine 
that the specific duty  is a safeguard measure, that we reassess our decision not to make a 
suggestion about how Indonesia may bring its WTO -inconsistent safeguard measure into 
conformity with its obligations.102 Having decided not to reconsider our findings concerning the 
legal c haracterization of the specific duty, we deny the complainants' request.  
 
 
_______________  
 
 
 
 
                                                
99 Complainants' request for interim review, para. 2.80.  
100 Complainants' request for interim revi ew, paras. 2.81 and 2.82.  
101 Complainants' request for interim review, para. 2.83.  
102 Complainants' request for interim review, para. 2.84.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the complainants  B-2 
Annex  B-2 Integrated executive summary of the arguments of Indonesia  B-25 
 WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  ANNEX  B-1 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUM ENTS OF THE COMPLAIN ANTS  
1 INTRODUCTION  
1.1. This integrated executive summary contains the argu ments presented by the 
Separate  Customs Territory of Taiwan, Pen ghu, Kinmen and Matsu ( Chinese  Taipei ) and the 
Socialist Republic of Viet Nam (Viet Nam) (hereinafter the complainants) in their written 
submissions, oral statements, responses to questions and comments thereto.  
1.2. The complainants challenge three measur es by Indonesia that are inconsistent with 
Article  XIX of the General Agreement on Tariffs and Trade 1994 ( GATT  1994) and the Agreement 
on Safeguards.  
1.3. First, the complainants consider that Indonesia's safeguard measure, which takes the form of 
a spec ific duty, is inconsistent with Article  XIX:1(a) of the GATT  1994, and Articles 2.1, 3.1, last 
sentence, 4.1(a), 4.1(b), 4.2(a), 4.2(b) and 4.2(c) of the Agreement on Safeguards. There is no 
disagreement among the parties that this measure is a safeguard m easure within the meaning of 
Article  1 of the Agreement on Safeguards and Article  XIX:1(a) of the GATT  1994, and that it must 
therefore be subject to the disciplines of Article  XIX of the GATT  1994 and the Agreement on 
Safeguards. In any event, the specifi c duty is applied inconsistent ly with Article  I:1 of the 
GATT  1994, and cannot be justified under Article  9.1 of the Agreement on Safeguards.  
1.4. Second, Indonesia's notification to the WTO Committee on Safeguards of certain required 
information prior to  the imposition of the safeguard measure is inconsistent with Article  12.2 of the 
Agreement on Safeguards.  
1.5. Third, Indonesia failed to provide WTO Members with adequate opportunity for consultations 
prior to the imposition of the safeguard measure, co ntrary to Article  XIX:2 of the GATT  1994 and 
Article  12.3 of the Agreement on Safeguards.  
1.6. The complainants request that the Panel recommend Indonesia to bring its measures into 
conformity with WTO law. Given the nature and number of the violations at issue, and the fact that 
Indonesia's competent authority, Komite Pengamanan Perdagangan Indonesia (KPPI), initiated on 
18 January 2017 an investigation regarding a possible extension of the safeguard measure at 
issue, the complainants request the Panel to suggest that Indonesia withdraws the safeguard 
measure at issue, pursuant to Article  19.1 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU).  
2 LEGAL ARGUMENTS  
2.1 Indonesia's safeguard measure is a "safeguard measure"  within the meaning of 
Article  XIX of the GATT  1994  and the Agreement on Safeguards  
2.1. The complainants submit that the specific duty is a safeguard measure within the meaning of 
Article  XIX of the GATT  1994 and Article  1 of the Agreement on Safeguards. Indonesia has 
indicated that it has "unbound" commitments with respect to the products at issue.1 The 
complainants consider, however, that this fact does not change the characterization of the 
measure as a safeguard measure. Indonesia agrees with the compl ainants that the measure at 
issue is, indeed, a safeguard measure and the fact that it has "unbound" commitments with 
respect to the subject products should not affect the nature of the measure.2  
2.2. With respect to the definitional elements of a safegua rd measure, the complainants are of the 
view that a safeguard measure must consist of (i) a suspension, withdrawal, or modification of a 
                                                
1 Indonesia's rebuttal submission, paras. 40 -41. 
2 Indonesia's rebuttal submission, para. 41. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  GATT obligation ("the nature of the measure") that is (ii) taken under the scope of Article  XIX and 
the Agreement on Sa feguards, with a view to remedying (or preventing) a situation of serious 
injury caused or threatened by an increase in imports ("the objective of the measure").3 
2.3. The complainants consider that what determines whether a measure is a safeguard measure 
must be distinguished from whether a safeguard measure meets the requirements of Article  XIX of 
the GATT  1994 and the Agreement on Safeguards to be a valid safeguard. If a measure does not 
fulfil the definitional elements of a safeguard measure, the measur e is simply not a safeguard 
measure and, thus, Article  XIX and the Agreement on Safeguards do not apply to that measure. 
However, the fact that a safeguard measure does not fulfil the requirements of Article  XIX and the 
Agreement on Safeguards does not cha nge the nature of the measure as a safeguard.4  
2.4. Turning to the obligations that may be suspended when applying a safeguard measure, the 
complainants agree with the panel's interpretation in Dominican Republic – Safeguard Measures  
that there is a paral lelism between the words "obligation" and "concession" in the first part of 
Article  XIX:1(a) and "obligations" and "concessions" in the last part of that provision.5 This means 
that a Member that applies a safeguard measure must suspend the obligation or w ithdraw or 
modify the concession that has resulted in the increase in imports.6  
2.5. Moreover, in the complainants' view, the suspension of any GATT obligation  made under the 
scope of Article  XIX of the GATT  1994 and following the procedures laid out in t he Agreement on 
Safeguards would always amount to a "safeguard measure" within the meaning of Article  1 of the 
Agreement on Safeguards. The most commonly cited examples of those obligations are those set 
out in Articles II and XI of the GATT  1994. However,  the panel in Dominic an Republic – 
Safeguard  Measures found that the safeguard measure at issue consisted of the suspension of the 
Dominican Republic's obligation under Article  I:1 of the GATT  1994.7 
2.6. To be clear, the complainants do not argue that any suspension, withdrawal, or modification  
of a GATT obligation or concession amounts to a "safeguard measure" within the meaning of 
Article  1.1 of the Agreement on Safeguards and Article  XIX of the GATT  1994. However, any 
measure  that consists of a suspensi on, withdrawal, or modification of a GATT obligation, taken 
with a purpose of remedying or preventing serious injury caused or threatened by an increase in 
imports, must be considered a safeguard measure. Additional evidence indicating that a measure 
is a safeguard measure is whether it has been implemented within the scope of Article  XIX and the 
Agreement on Safeguards, including the conduct of a "safeguard" investigation and 'the relevant 
notifications to the Committee on Safeguards under Article  12 of th e Agreement on Safeguards.8 
2.7. In the present dispute, the complainants note that Indonesia's measure falls squarely within 
the above definition of a safeguard measure. It is a specific safeguard duty on the subject products 
that is applied in addition t o Indonesia's applied FTA tariff rates and the current 20% MFN tariff 
rate.9 The measure is applied on the imports of the subject product that originate in some 
countries and is not applied on "like" imports of other origins. Therefore, the complainants ob serve 
that Indonesia's measure constitutes a suspension of Article  I:1 of the GATT  1994. This suspension 
was taken to remedy a situation of alleged threat of serious injury to its domestic industry. 
Furthermore, Indonesia applied the measure pursuant to an  investigation initiated, conducted, and 
notified to the Committee of Safeguards under the auspices of Article  XIX of the GATT  1994 and 
the Agreement on Safeguards.10  
2.8. The complainants note that during the last stages of the panel proceedings, Indonesi a seemed 
to suggest that it is its obligation under Article  XXIV of the GATT  1994 that resulted in the increase 
in imports, instead of its MFN obligation.11 However, Article  XXIV does not impose an obligation  on 
                                                
3 Complainants' response  to Panel's question 49.  
4 Complainants' response to Panel's question 49.  
5 Complainants' response to Panel's question 47.  
6 Complainants' response to Panel's question 48.  
7 Complainants' response to Panel's question 49.  
8 Complainants' response to Panel's  question 49.  
9 The complainants have presented evidence indicating that as from 30 May 2015, Indonesia has 
increased its applied tariff rate from 12.5% to 20% with respect to the subject product. Complainants' 
comments on Indonesia's responses to the Pane l's question 53.  
10 Complainants' response to Panel's question 49.  
11 Indonesia's responses to the Panel's questions 47 and 48.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  Indonesia either to enter into free -trade agr eements or to provide a certain level of market access 
to its FTA partners. Instead, it permits  Indonesia to do so. Therefore, the complainants submit that 
Article  XXIV cannot be considered an "obligation" that led to an increase in imports.12 Moreover, 
Indonesia cannot submit an ex-post explanation to attempt to make up for the deficiencies and 
lack of reasoned and adequate explanation in KPPI's Final Disclosure Report.13  
2.9. In addition, Indonesia argues that should the Panel consider that this measure is  not a 
safeguard measure, it should reject the complainants' arguments since Indonesia is free to 
increase its tariffs with respect to the subject products, without any obligation to comply with the 
safeguards disciplines under WTO law.14 The complainants h ave provided the above reasons, 
including the fact that Indonesia itself does not dispute the characterization of this measure, 
indicating that Indonesia's measure is a safeguard measure and s hould be assessed under 
Article  XIX of the GATT  1994 and the Agr eement on Safeguards. In any event, the complainants 
argue that if the Panel were to consider Indonesia's measure not to be a safeguard measure, 
Indonesia has applied its measure in a manner that is inconsiste nt with Article  I:1 of the 
GATT  1994, as it exc ludes certain countries from the application of the measure.15 
2.10.  In the light of the foregoing, the complainants submit that the measure at issue is a 
safeguard measure that should be assessed under Article  XIX of the GATT  1994 and the 
Agreement on Safe guards.  
2.2 The effects of GATT obligations / unforeseen developments  
2.2.1  Indonesia has failed to indicate which GATT obligations, including tariff 
concessions, resulted in an increase in imports  
2.11.  Notwithstanding the characterization of the measure at issue, the complainants consider that 
Indonesia applied a safeguard measure inconsistently w ith the requirements of Article  XIX:1(a) of 
the GATT  1994. In particular, KPPI failed to identify the specific obligation in its Final Disclosure 
Report and also  failed to explain how this obligation would have led to the alleged increase in 
imports that threatened to cause serious injury to its domestic industry.16 The complainants 
consider that the Panel should follow the precedent established by the panel in Dominican Republic 
– Safeguard Measures . In that case, the panel  found that the investigating authority did not 
identify these obligations "in its report" and did not explain how they resulted in the increase in 
imports that led to serious injury in respect o f its domestic industry. Thus, "it [was] not possible to 
conclude that the report of the competent authority contain[ed] a reasoned and adequate 
explanation" as to how the Dominican Republic incurred GATT obligations within the meaning of 
Article  XIX:1(a) of the GATT  1994.17  
2.2.2  Indonesia has failed to explain how KPPI provided a reasoned and adequate 
explanation of the unforeseen developments concerned and how they resulted in an 
increase in imports  
2.12.  The complainants consider that KPPI's determinati on of the unforeseen developments is 
inconsistent with Article  XIX:1(a) of the GATT  1994 and Article  3.1 of the Agreement on 
Safeguards.18  
2.13.  The complainants have argued that KPPI has failed to provide a reasoned and adequate 
explanation of what the un foreseen developments were; why they were unforeseen; and how they 
resulted in the increase in imports of the specific products that threatened to cause serious injury 
to its domestic industry.  
                                                
12 Complainants' comments on Indonesia's responses to the Panel's questions 47 and 48.  
13 Complainants' comments on Indonesia's resp onses to the Panel's questions 47 and 48.  
14 Indonesia's rebuttal submission, para. 41. 
15 Complainants' first written submission, paras. 5.142 -5.150.  
16 Complainants' response to Panel's question 47; Complainants' first written submission, para. 5.28. 
17 Panel Report, Dominican Republic – Safeguard Measures , paras. 7.148 -7.149.  
18 Complainants' first written submission, paras. 5.15 -5.33. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  2.14.  Indonesia has agreed that KPPI was obliged "to provide an explanation as to how the 
unforeseen development[s] could lead to increased imports".19 However, Indonesia argued that 
KPPI was required to provide an explanation "as simple as bringing two sets of facts together", and 
that the length of KPPI's explanati on is not a factor that should be considered by the Panel.20 The 
complainants have demonstrated that the factual assertions made by KPPI in its discussion on 
unforeseen developments in the Final Disclosure Report were multiple, implied complex economic 
reasoning, and required much more explanation than just "bringing two sets of facts together".21  
2.15.  The complainants explained that Indonesia relies on a statement made by the panel in US – 
Steel Safeguards22 that does not reflect the well -established standa rd followed by the Appellate 
Body and other panels. In fact, even in US – Steel Safeguards , the panel characterised the 
discussion on unforeseen developments, which in that case (like the present one) involved 
macroeconomic events of a high complexity, as one that would "require much more  detailed 
analysis in order to make clear the relationship that exists between the unforeseen developments 
and the increased imports that are causing or threatening to cause serious injury".23  
2.16.  Furthermore, the complai nants have argued that KPPI failed to explain the "logical 
connection" between the alleged unforeseen developments and the effects of Indonesia's GATT 
obligations and the increase in imports.24 In fact, in its Final Disclosure Report, KPPI concluded 
that th e surge of imports  during [the] period of investigation as mentioned in Chapter C.2 is 
considered  as [an] unforeseen development .  
2.17.  Indonesia acknowledged KPPI's erroneous conclusion in its Final Disclosure Report25 but 
requested the Panel not to be "f ixated only on the conclusion itself". Rather, the Panel should "look 
to the context of the case".26 On this basis alone, the complainants have argued that the Panel 
could conclude that KPPI did not adequately demonstrate a logical connection between the 
unforeseen developments and the increase in imports and, consequently, find that Indonesia's 
safeguard measure is inconsistent with Article  XIX:1(a) of the GATT  1994 and Article  3.1 of the 
Agreement on Safeguards. Even if the Panel could grant Indonesia its request, given the brevity of 
KPPI's explanation on "unforeseen developments", it is unclear to which further "context" the Panel 
could look.  
2.18.  The complainants also note that the Appellate Body has unambiguously explained that, when 
an investigating a uthority relies on a macroeconomic event, it is obliged to provide a "logical 
connection" between the unforeseen developments and the alleged increase in imports. Indeed, it 
is not for the panel to read into the report linkages that the investigating autho rity failed to 
make.27  
2.19.  Indonesia has alleged that KPPI provided the necessary explanation and data in its Final 
Disclosure Report indicating the effects of the 2008 global financial crisis in the Indonesian 
economy, including the alleged increase in imports. The complainants note that the data relied 
upon by Indonesia are in other parts of the Final Disclosure Report; are not referred to in its 
explanation relating to unforeseen developments; and in fact, contradict the claim made by 
Indonesia that th e 2008 global financial crisis did not have an adverse effect on Indonesian 
imports and demand of the products at issue. The complainants have demonstrated that the data 
in tables 7 and 8 of the Final Disclosure Report indicate that domestic consumption an d imports of 
the subject product in Indonesia declined in 2008 -2009. It therefore appears that the unforeseen 
developments and increase in imports are merely coincidental.  
2.20.  In an attempt to compensate for the shortcomings of KPPI's explanation in the  Final 
Disclosure Report, Indonesia has provided further data in the Panel proceedings to demonstrate its 
                                                
19 Indonesia's first written submission, paras. 53.  
20 Indonesia's first written submission, para. 53; Indonesia's response to Panel's question 8, 
paras.  11-12. 
21 Complainants' rebuttal submission, para. 2.9. 
22 Panel Report, US – Steel Safeguards , para. 10.115.  
23 Panel Report, US – Steel Safeguards para. 10.115. (emphasis added)  
24 Complainants' first written submission, para. 5.27; complainants' rebuttal submission, para. 2.9; 
Complainants' response to Panel's question 55.  
25 Indonesia's first written submission, para. 64. 
26 Indonesia's first written submission, para. 64. 
27 Appellate Body Report, US – Steel Safeguards , para. 322. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  economic growth during the period of investigation (POI).28 The complainants consider that these 
data cannot be taken into account by the Panel as they  constitute an ex-post explanation.  
2.21.  Indonesia has alleged that KPPI was not obliged to explain why Indonesia's purchasing 
power remained high during the 2008 global financial crisis, nor the occurrence of the 2008 global 
financial crisis.29 The compla inants note that, pursuant to the last sentence of Article  3.1 of the 
Agreement on Safeguards, KPPI was obliged to show that every pertinent fact upon which it relied 
for its determination was properly addressed and explained in the Final Disclosure Report . Further, 
the panel in Argentina – Preserved Peaches concluded that "as a minimum, some discussion 
should be done by the competent authorities as to why they were unforeseen at the appropriate 
time, and why conditions in the second clause of  Article  XIX:1 (a) occurred 'as a result ' of 
circumstances in the first clause ".30 
2.2.3  Conclusion  
2.22.  In the light of the foregoing, KPPI's determination of unforeseen developments and the effect 
of GATT obligations is inconsistent with Article  XIX:1(a) of the GATT  1994 and Article  3.1 of the 
Agreement on Safeguards.  
 
2.3 Increased imports  
2.23.  KPPI's determination of increased imports is inconsistent wi th Article  XIX:1(a) of the 
GATT  1994 and Articles 2.1, 3.1 (and for Viet Nam also Articles 4.2(a) and 4.2(c)) of th e 
Agreement on Safeguards because KPPI failed to provide a reasoned and adequate explanation of 
why the increase in imports was "recent enough" .31 
2.24.  The Agreement on Safeguards does not specify explicitly the maximum permissible time gap 
between the end  of the POI and the date of the determination of injury or threat thereof and the 
imposition of the final measure. Nevertheless, the discretion of the competent authority as to the 
length of these gaps is not unfettered. First, the analysis of increased im ports must be based on 
the increase that is "recent enough" , as has been confirmed in a consistent line of the decisions of 
the Appellate Body and previous panels. Second, more generally, the Agreement on Safeguards 
and Article  XIX:1(a) of the GATT  1994 require Members to apply a safeguard measure exclusively 
as a response to an emergency , and subject to conditions set out in Article  XIX and the Agreement 
on Safeguards. An excessively long gap between a POI and the determination of injury or threat 
thereof and the imposition of the final measure casts doubt on the urgency of the situation. The 
Appellate Body and previous panels have attached particular importance to developments in the 
most recent portions of a POI, in particular in determinations of threat of serious injury.32 
2.25.  The Agreement on Safeguards does not establish an absolute standard of how recent the 
increase must be. Thus, the reasonableness of a time gap between the end of a POI and the 
serious injury determination or the imposition of the safeguard measure must necessarily depend 
on the specific circumstances of each investigation. These circumstances may include, among 
others: the availability of data, the manner in which imports behave and fluctuate during the POI, 
market conditions withi n the importing Member, and external macroeconomic factors that might 
be relevant to the case. In light of these circumstances, one may evaluate whether the data on 
increased imports serve as a reasonable proxy for current imports. As in any trade remedy 
dispute, this evaluation must be based on the investigating authority's explanation of its relevant 
determination. Furthermore, it must take into account the exceptional nature of a safeguard 
remedy.33 
2.26.  To be clear, the complainants do not suggest that there may not be any time gap between 
the end of the POI and the determination of injury or the imposition of the safeguard. On the 
                                                
28 Indonesia's response to Panel's question 9, para. 17. 
29 Indonesia's first written submission, para. 56. 
30 Panel Report, Argentina – Preserved Peaches , para. 7.23. (emphasis added)  
31 Complainants' first written submission, paras. 5.35, 5.36; complaina nts' rebuttal submission, 
para. 2.30. 
32 Complainants' first written submission, paras. 5.40 -5.44. 
33 Complainants' rebuttal submission, paras. 2.35, 2.36; complainants' opening statement at the 
first meeting  of the Panel with the parties, para. 3.2. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  contrary, there will ordinarily be some reasonable time gap to allow the investigating authority to 
analyse the data that it  already collected and to complete its investigation. However, where 
additional data become available in sufficient time to be taken fully into account, they must be 
considered in the investigation.34 
2.27.  In light of the specific circumstances of the inve stigation at issue, the complainants submit 
that a time gap of 9 months  (instead of 15 months) between the end of the POI and the issuance 
of KPPI's Final Disclosure Report (i.e. final determination) would have been reasonable because of 
the following fact s:  
a. During the investigation, the data on imports were available with a time lag of a 
maximum of six months;  
b. Indonesia's first written submission makes clear that as of 12 December 2013, KPPI 
had an active exchange of information with the petitioner s on their "production 
process, labour and production target"; and, on 8 January 2014, KPPI "assessed the 
petitioners' structural adjustment". As the investigation was still underway at that 
time, and KPPI was effectively engaged in collecting industry dat a, it was in a position 
to extend the POI ending in December 2012, and to collect further data on the 
increase in imports for, at least, the first half of 2013. This means that the gap 
between the end of the POI in mid -2013 and the issuance of the Final Di sclosure 
Report in March 2014 would have been 9 months;  
c. In its question 57, the Panel asked Indonesia whether the official data on the volume 
of imports of the subject product for the first six months of 2013 were available for 
KPPI by the end of 2013 o r, at the very least, before the issuance of KPPI's Final 
Disclosure Report. Given that Indonesia did not answer this specific question, it would 
be appropriate for the Panel to infer that the official data on the volume of imports of 
the subject product f or the first six months of 2013 were indeed available to KPPI by 
the end of 2013 at least; and  
d. The complainants had neither an obligation under Article  XIX of the GATT  1994 or the 
Agreement on Safeguards, nor an actual procedural opportunity to request KPPI to 
update the data. Until the period almost immediately preceding Indonesia's 
notification of KPPI's threat of serious injury determination in May 2014, the 
complainants and their exporters were kept in the dark regarding any further 
developments in t his investigation.35  
2.28.  Despite these facts, the relevant time gaps in the investigation at issue are as follows:  
a. The gap between the end of the POI and the issuance of KPPI's Final Disclosure Report 
is 15 months ;  
b. The gap between the end of the POI and Indonesia's notification under Article  12.1(b) 
is 17 months ; and  
c. The gap between the end of the POI and the imposition of the safeguard measure is 
19 months .  
2.29.  Given the length of these time gaps, the Final Disclosure Report should have, b ut did not, 
include a reasoned and adequate explanation as to why more recent data (i.e. the data for the first 
half of 2013) could not be used, and why the data used provided "a reasonable indication of 
current trends".36  
2.30.  KPPI failed, however, to pr ovide such an explanation. Indeed, Indonesia itself acknowledged 
that the time gaps were abnormal when it referred to several bureaucratic reasons that allegedly 
                                                
34 Complainant s' response to Panel's question 61.  
35 Complainants' rebuttal submission, paras. 2.37 -3.38; complainants' response to Panel's question 11; 
complainants' comments on Indonesia's response to Panel's question 57.  
36 Complainants' rebuttal submission, paras. 2.3 9-2.40 (citing Appellate Body Report, US – Tyres 
(China) , para. 147).  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  delayed the issuance of the Final Disclosure Report, such as a change of KPPI's Chairperson an d 
the Minister of Trade.37 
2.31.  In order to remedy the shortcomings in the First Disclosure Report, during the first 
substantive meeting of the Panel, Indonesia submitted a table showing that imports of the subject 
product continued to increase in 2013 (by  approximately 30 per ce nt) from the levels of 2011 
and 2012. However, the standard governing the Panel's review of KPPI's analysis limits it to 
examine only KPPI's explanation of the facts in the Final Disclosure Report and not information 
that was not as sessed by KPPI. Moreover, as explained in the complainants' response to Panel's 
question 13, the complainants' claim has a systemic feature that goes beyond specific facts.38 
2.32.  Indonesia further alleges that the analysis of the additional data was not f easible as the 
assessment of injury is dependent on the availability of audited financial statements of the 
domestic industry – these statements are only available on an annual basis. Therefore, because it 
was not possible to conduct the injury analysis on  a semi -annual basis, it was also not possible to 
assess the increase in imports on that basis. The complainants demonstrated that this is an 
unsubstantiated  ex-post explanation, which moreover contradicts the evidence before the Panel.39  
2.33.  Indonesia relies erroneously  on the alleged similarity between the relevant time gaps in the 
present dispute and in Ukraine – Passenger Cars  (i.e. 15 and 16 months respectively) to support 
its view that a 16 -month time gap is WTO -consistent. However, the facts in Ukraine – Passenger 
Cars and the present dispute can be distinguished. In that case, the panel found that Japan had 
not put forward specific arguments to suggest that the investigation took longer than needed. It 
also highlighted the fact that "the competent authorities were actively engaged [with Japan] right 
up to the end of the investigation", and "published a notice specifically on the extension of the 
investigation".40 In light of these facts taken together, the panel concluded that the 16 -month time 
gap i n that dispute was WTO -consistent, while emphasizing that it took this decision "in the 
particular circumstances of [that] case".41  
2.34.  In the present dispute, the circumstances are very different. The complainants have argued, 
and Indonesia has acknowle dged, that the time gaps at issue were "abnormal" due to several 
bureaucratic factors that delayed the issuance of the Final Disclosure Report. KPPI had access to 
data on volume of imports for, at least, the first half of 2013, but were ignored. Indonesia did not 
issue any notice as to the possible delay and extension of the investigation. Nor did Indonesia 
engage actively with exporting countries in the course of the investigation. Thus, the Panel should 
reject Indonesia's approach to justify the abnormal time gaps at issue based on a similar absolute 
number of months, which is 16 months.42  
2.35.  In addition, Indonesia quoted out of context a statement in the Argentina – Footwear (EC)  
panel report allegedly suggesting that an investigating authority does no t have to continuously 
update the data in its investigation. The complainants, however, demonstrated that, in Argentina – 
Footwear (EC) , the panel faulted the Argentine authority for not expanding the POI to include 
more recent data. The panel's decision i n that dispute is, therefore, in line with the complainants' 
arguments in this case. Contrary to Indonesia's argument, that decision does not suggest that the 
investigating authority is not required to update the data on the volume of imports and injury 
when more relevant or recent data exist, such as in the present dispute.43 
2.36.  Finally, Indonesia alleged that the only provisions relevant to the complainants' claims on 
"increased imports" are Articles 2.1 and 4.2(a) of the Agreement on Safeguards, and Article XIX:1 
of the GATT  1994, and the complainants failed to make their prima facie case with respect to their 
claims under Article  3.1 (last sentence) and Article  4.2(c) of the Agreement on Safeguards. In the 
complainants' view, however, there is a substa ntial overlap between the claims under the 
                                                
37 Complainants'  opening statement at the first meeting of the Panel with the parties, para. 3.3. 
38 Complainants'  rebuttal submission, para. 2.44. 
39 Complainants' comments on Indonesia's response to Panel's question 57, para. 1.30; complainants' 
response to Panel's question 60.  
40 Panel Report, Ukraine – Passenger Cars , paras. 7.175 -7.176.  
41 Panel Report, Ukraine – Passenger Cars , para. 7.177.  
42 Complainants'  opening statement at the second  meeting of the Panel with the parties, paras. 3.6 -3.8; 
Complainants' response to Panel's question 12.  
43 Complainants' response to Panel's question 60 (quoting Panel Report, Argentina – Footwear (EC) , 
paras. 8.213 -8.215 ). WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  substantive provisions, such as Articles 2.1, 4.2(a) and Article  XIX:1 , and the claims under 
Articles  3.1 and 4.2(c). If an investigating authority fails to provide a proper explanation of its 
finding on increased  imports, it will violate the afore -mentioned substantive obligations and also 
act inconsistently with the requirements of Article  3.1 (last sentence) and Article  4.2(c) of the 
Agreement on Safeguards. Pursuant to the latter provisions, investigating autho rities must explain 
"all pertinent issues of fact and law" in a reasoned manner.44 
2.37.  In the light of the foregoing, KPPI's determination of increased imports is inconsistent 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.  
2.4 Threat of serious injury  
2.4.1  KPPI failed to evaluate all relevant serious injury factors under Article  4.2(a) of 
the Agreement on Safeguards  
2.38.  The complainants submit that Indonesia acted inconsistently with it s obligations under 
Article  XIX:1(a) of the GATT  1994 and Articles 2.1, 3.1, 4.2(a) and 4.2(c) of the Agreement on 
Safeguards because KPPI (i) failed to evaluate all relevant serio us injury factors under 
Article  4.2(a) of the Agreement on Safeguards, i.e. the rate and amount of the increase in imports 
in relative terms and utilized capacity; and (ii) failed to provide a reasoned and adequate 
explanation of how the facts supported its serious injury determination. In addition, Viet Nam 
submits that KPPI's fi nding of threat of serious injury is inconsistent with the definition of "threat 
of serious injury" under Articles 4.1(a), 4.1(b) and 4.1(c) of the Agreement on Safeguards.45  
2.39.  The complainants note that Table 4 of the Final Disclosure Report provides a summary of the 
rate and amount of the increase in imports of the subject product in absolute terms only. 
Article  4.2(a) of the Agreement on Safeguards contains express language requiring investigating 
authorities to evaluate "the rate and amount of the i ncrease in imports of the product concerned in 
absolute and relative terms".46  
2.40.  The complainants have explained that the term "relative" is defined as "[c]onsidered in 
relation or in proportion to something else", or more appropriately in the context of Article  4.2(a) 
as "[e]xisting or possessing a specified characteristic only in comparison to something else; not 
absolute." Therefore, the express language of Article  4.2(a) requires a comparison of imports with 
"something else".47  
2.41.  The complainant s submit that "something else" is domestic production. Indeed, a reading of 
Article  4.2(a) and Article  2.1 of the Agreement on Safeguards, indicates that the increase in 
imports "in relative terms" must relate to " domestic production ", and not to "domestic  
consumption"48, as Indonesia proposes. The European Union shares the complainants' view.49 A 
comparison of imports with domestic consumption is already contemplated in Article  4.2(a) under 
the terms "the share of the domestic market taken by increased impor ts". Thus, Indonesia's 
approach would render redundant either the requirement to analyse the increased imports in 
relative terms or the requirement to assess the share of the domestic market taken by increased 
imports.50 
2.42.  The complainants consider that  there is no contradiction between the Article  2.1 and 
Article  4.2(a). Both refer to two different moments in the investigation process. On the one hand, 
Article  2.1 requires a demonstration  of an increase in imports for the imposition of a safeguard 
measu re, either absolute or relative to domestic production. On the other hand, to arrive at this 
demonstration, Article  4.2(a) requires an assessment  of whether imports have increased in 
absolute and relative terms. In this case, the assessment of the increase  in imports from the 
                                                
44 Complainants' response to Panel' s question 14; complainants' rebuttal submission, paras. 2.33 -2.34. 
45 Complainants' first written submission para, 5.57.  
46 Appellate Body Report, Argentina – Footwear, para. 129. See also, complainants' rebuttal submission 
para. 2.53. 
47 Complainants' respo nse to Panel's question 18.  
48 Complainants' opening statement in the first meeting of the Panel with the parties,  para. 4.2. 
49 EU's response to Panel's question 1, para. 4. 
50 Complainants' rebuttal submission, para. 2.54. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  two perspectives is required.51 Australia52 and the United States53 also agree that there is no 
contradiction between the requirements of Articles 2.1 and 4.2(a) . 
2.43.  Moreover, t he complainants consider  Indonesia's argument that the inc rease in imports in 
relative terms to domestic consumption is not the same as the share of the market taken by 
imports  unfounded. The distinction suggested by Indonesia is artificial and not supported by the 
text of Article  4.2(a) of the Agreement on Safeg uards. This provision refers to the "share" of the 
market taken by imports, which must be understood as referring to the analysis of the absolute 
market share taken by imports. Article  4.2(a) does not refer to the relative increase in the market 
share of i mports. This is, again, another new interpretation put forward by Indonesia in its attempt 
to justify KPPI's failure to conduct the required analysis under Article  4.2(a).54 
2.44.  The fact remains, however, that what Indonesia considers as different factors  are, in fact, 
the same. There is no meaningful difference between the analysis of the relative increase in 
imports against domestic consumption and the analysis of the market taken by imports. In any 
event, even if Indonesia's interpretation were to be co nsidered, KPPI nevertheless did not provide 
an adequate explanation of "the share of the domestic market taken by increased imports" in the 
Final Disclosure Report.55 
2.45.  Furthermore, the complainants note that, together with Article  XIX of the GATT  1994,  
Article  2.1 of the Agreement on Safeguards accords Members the right to apply a safeguard 
measure subsequent to a determination that imports have increased absolutely or relative to 
domestic production.56 The Appellate Body has emphasised the need for cohe rence between 
Articles 2.1 and 4.2 of the Agreement on Safeguards. In fact, it has stated that the conditions set 
out in Article  2.1 are further elaborated in Article  4.2.57 Therefore, the phrase "increase in imports" 
in Articles 4.2(a) and 4.2(b) must be " read as referring to the same set of imports envisaged in 
Article  2.1".58 
2.46.  KPPI did not include Bluescope's "captive capacity" reserved for pre -painted galvalume 
production as part of the analysis of the situation of the domestic industry.59 The complai nants 
note that bare galvalume was the product subject to KPPI's investigation and eventual safeguard 
measure. Contrary to Indonesia's assertions during the course of the current dispute,60 the 
complainants have presented evidence indicating that bare galva lume is used in the production of 
painted galvalume.61 Accordingly, Bluescope requires bare galvalume (which Bluescope also 
produces) as an input in its production of painted galvalume. Hence, the two segments of 
production of bare galvalume are relevant fo r: (i)  production for the merc hant market and, 
(ii) production for the captive market. Hence, KPPI's statement that Bluescope does not consume 
its own bare galvalume for its own captive consumption62 is not supported by the facts.  
2.47.  In this case, howeve r, the Final Disclosure Report contains no indication that KPPI conducted 
the serious injury analysis with respect to both segments of the domestic industry. Nor does it 
contain an explanation of why the analysis of the merchant market alone was representa tive of the 
overall industry, or how, despite the absence of an analysis of production for the captive market, 
the findings of KPPI still provided a reasoned and adequate explanation of the alleged serious 
injury that affected the domestic industry.63  
2.48. The complainants also note that the price of pre -painted galvalume is higher than that of 
bare galvalume. Therefore, producers, like Bluescope, that have the facilities to produce both 
products would opt to produce the higher value pre -painted galvalume.  Since Bluescope sells both 
                                                
51 Complainants' rebuttal submissio n para. 2.57. 
52 Australia's response to Panel's question 1, para. 2. 
53 U.S. response to Panel's question 1, para. 4. 
54 Complainants' opening statement in the second meeting of the Panel with the parties, para. 4.4. 
55 Complainants' opening statement in the second meeting of the Panel with the parties, para.  4.5. 
56 Complainants' response to Panel question 26.  
57 Appellate Body Report, US – Steel Safeguards , paras. 449.  
58 Appellate Body Report, US – Steel Safeguards , paras. 450.  
59 Complainants' first oral state ment para. 4.5. 
60 Indonesia's opening statement in the second meeting of the Panel with the parties, para. 45. 
61 Complainants' response to Panel's question 70.  
62 Indonesia's response to Panel question 24(ii), para. 46. 
63 Complainants' rebuttal submission, para. 2.63. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  products, it is reasonable to conclude that decreased sales of bare galvalume are a result of its 
increase in sales of the downstream pre -painted galvalume.  
2.4.2  KPPI failed to explain its finding of threat of serious injury i n spite of indications of 
positive performance of the domestic industry  
2.49.  KPPI concluded that the domestic industry "suffered a threat of serious injury" based mainly 
on two factors: (i) a decrease in market share and (ii) a decrease in profits.64 Howev er, KPPI failed 
to explain its finding of threat of serious injury in spite of indications of positive performance of the 
domestic industry.  
2.50.  While it is true that "[a]n evaluation of each listed factor will not necessarily have to show 
that each such  factor is declining",65 the competent authority must provide a reasoned and 
adequate explanation of how those factors showing positive performance do not negate the finding 
of serious injury or threat thereof.66 A comprehensive and holistic analysis of all relevant factors is 
therefore required.67 
2.51.  With respect to the decrease in market share, KPPI made fi ndings based on tables 5, 6, 
and 7.68 Its conclusion that during the POI, the market share of imports increased by 6 per cent, 
while the petitioner's ma rket share decreased by 4 per cent69 is not enough to explain adequately 
"the share of the domestic market taken by increased imports" as contemplated by Article  4.2(a). 
KPPI analysed this injury indicator based solely on a comparison of ending points of th e POI.70 The 
Appellate Body stated that "the competent authorities are required to consider the trends in 
imports over the POI (rather than just comparing the end points) under Article  4.2(a).71 
2.52.  If KPPI had analysed the trends it would have noticed tha t, in fact, from 2010 onwards, the 
market share trend of the petitioners shows a significant increase. Based on the information 
provided in the Final Disclosure Report in paragraph  26(a) and tables 7 and 8, and evidence 
provided by Indonesia, the complaina nts have attempted to establish the specific market shares of 
imports and of the petitioners. These data show that between 2010 and 2012 the petitioners (as 
compared to imports and other domestic producers) experienced the highest market share 
increase in the Indonesian market for the products at issue. There was therefore no indication of 
threat of serious injury based on an alleged decline in market share.72 
2.53.  The complainants also noted that KPPI uses indices that are contradictory and that do not 
support its conclusions. For example, the indices referred to in line 3 of Table 7 do not allow a 
reasonable understanding of how KPPI arrived at the increase in m arket share of imports of 
6 per cent over the POI.73   
2.54.  Moreover, the complainants observed that KPPI did not determine the total domestic market 
in the light of the participation of domestic producers other than the petitioners. Moreover, as 
noted by the importers, part of the domestic industry's production was used for Bluescope's own 
captive c onsumption. KPPI also noted that this petitioner produced both "Bare and Painted 
Galvalum". This fact should have been taken into account to establish the total domestic market. 
However, KPPI failed to do so.74 
2.55.  With respect to decrease in profits, the  majority of the factors examined also showed 
positive trends during the period of investigation. This is the case in particular with respect to 
changes in level of sales, production, productivity, employment. KPPI, however, failed to provide a 
                                                
64 Complainants' first written submission para. 5.77. 
65 Appellate Body Report,  Argentina – Footwear (EC) , para. 139. 
66 Complainants' first written submission, para. 5.78. 
67 Complainants' first written submission, para. 5.79. 
68 Complainants' firs t written submission, para. 5.81. 
69 Complainants' first written submission, para. 5.81. 
70 Complainants' first written submission, para. 5.82. 
71 Appellate Body Report, Argentina – Footwear (EC), para. 129. 
72 Complainants' rebuttal submission, para. 2.68. 
73 Complainants' opening statement at the first meeting of the Panel, para. 4.4. 
74 Complainants' first written submission, para. 5.83. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  reasoned an d adequate explanation of the positive performance of these factors during the POI 
and whether these factors affected the domestic industry.75  
2.56.  Finally, the data on which KPPI based its injury assessment have been selectively used in a 
different manne r for different serious injury indicators. For instance, Table 8 of the Final Disclosure 
Report indicates that domestic sales were calculated based on data from only the domestic 
producers that requested the investigation, while Table 17 and paragraph 55 s how that the 
increase in installed capacity was calculated on the basis of data pertaining to all domestic 
producers. It is clear that KPPI conducted an examination of serious injury to the domestic 
industry based on inconsistent databases. Without a prope r explanation of why that non -uniform 
set of data did not affect the objectivity of its injury determination, KPPI could not, therefore, have 
arrived at an accurate and unbiased picture of the determination of serious injury to the domestic 
industry.76 
2.4.3 KPPI failed to explain how it found a "threat of serious injury" based solely on the 
evaluation of "actual" injury  
2.57.  While KPPI arrived at the conclusion that the domestic industry "suffered a threat of serious 
injury", this determination was based o nly on the analysis of actual injury of the domestic 
industry. KPPI failed to analyse whether the alleged serious injury was "clearly imminent" within 
the meaning of Article  4.1(b) of the Agreement on Safeguards.77  
2.58.  While Indonesia subsequently attemp ted to explain how KPPI arrived at the determination of 
threat of serious injury,78 the complainants consider this an ex-post explanation that cannot be 
considered by the Panel. Nevertheless, the explanations provided by Indonesia, which are either 
not refl ected or clearly explained in the Final Disclosure Report, do not fulfil the criteria established 
by various panels and the Appellate Body: it is not for panels to cobble together disjointed 
reference in the investigating authority's report in order to fin d support for its conclusions.79 
2.4.4  KPPI's failure to conduct the serious injury determination in accordance with 
Articles 3.1, 4.1(b), 4.2(a) and 4.2(c) implies also the inconsistency of that 
determination with Article  XIX:1(a) of the GATT and Article  2.1 
2.59.  Indonesia has argued that the complainants failed to explain how their claim based on 
Articles 3.1, 4.1(b), 4.2(a) and 4.2(c) results in inconsistencies with Article  XIX of GATT and 
Article  2.1 of the Agreement on Safeguards.  
2.60.  The complainan ts submitted that Indonesia's argument has no legal merit. According to 
Article  1 of the Agreement on Safeguards, the agreement establishes "rules for the application of 
safeguard measures which shall be understood to mean those measures provided for in Article XIX 
of GATT  1994." Thus, by virtue of Article  1, any violation of the rules for the application of 
safeguard measures, including Articles 3.1, 4.1(b), 4.2(a) and 4.2(v), necessarily entails a 
violation of Article  XIX of the GATT  1994.80  
2.61.  Similar ly, with respect to Article  2.1 of the Agreement on Safeguards, the Appellate Body 
has stated that " Article  2.1 reflects closely the 'basic principles' in Article  XIX:1(a) of the 
GATT  1994 and also sets forth 'the conditions for imposing a safeguard measur e'". The Appellate 
Body has further noted that "the conditions set forth in Article  2.1 are further elaborated in 
Article  4.2".81 The Appellate Body's statement necessarily implies that any violation of the 
conditions set forth in Article  4.2 also results i n a violation of Article  2.1, and, ultimately, of 
Article  XIX of the GATT  1994. 
                                                
75 Complainants' first written submission, paras. 5.85 -5.87. 
76 Complainants' opening statement at the first meeting of the Pa nel, para. 4.3; complainants' 
responses to Panel Question 16 and 17.  
77 Complainants' first written submission, para. 5.90. 
78 Indonesia's first written submission, paras. 134 -136. 
79 Appellate Body Report, US – Steel Safeguards , para. 326. 
80 Complainants' response to the Panel's question 21.  
81 Appellate Body Report, US – Line Pipe, para. 188. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  2.4.5  Conclusion  
2.62.  Based on the foregoing, the complainants submit that KPPI's serious injury determination is 
inconsistent with Article  XIX:1(a) of the GATT  1994, and Arti cles 2.1, 3.1, 4.2(a) and 4.2(c) of the 
Agreement on Safeguards. In addition, Viet Nam also submits that this determination is 
inconsistent with Articles 4.1(a), 4.1(b) and 4.1(c) of the Agreement on Safeguards.  
2.5 Causal link  
2.5.1  KPPI failed to establi sh the causal link between increased imports of the subject 
product and serious injury  
2.63.  The complainants submitted that KPPI's determination is inconsistent with Article  XIX:1(a) of 
the GATT  1994 and Articles 2.1, 3.1, 4.2(b) and 4.2(c) of the Agreeme nt on Safeguards because 
KPPI failed to provide a reasoned and adequate explanation of how the investigated imports 
caused  serious injury to the domestic industry. KPPI also failed to provide an explanation of how 
factors other than the investigated import s may have also caused serious injury to the domestic 
industry.82 
2.64.  The complainants noted that the causal link analysis conducted by KPPI is based on very 
limited data and cannot be considered as a proper basis for a positive determination of the 
existence of causation.83 KPPI relied largely on the coincidence of the alleged increased imports 
and the alleged injurious indicators. However, this coincidence in time is not dispositive of the 
existence of a causal link.  There may be situations where a coinci dence in time "may not suffice to 
prove causation or where the facts may not support a clear finding of coincidence and that, 
therefore, such situations may call for further demonstration of the existence of a causal link".84 
2.65.  Moreover, the complainant s argued that KPPI's reliance on an analysis of coincidence in time 
is flawed. KPPI drew the conclusion that this alleged "coincidence" showed a causal link from the 
fact that imports increased while the petitioners' market share decreased. Furthermore, In donesia 
has recognised the presence of other domestic producers in the market that accounted for part of 
domestic consumption – the complainants consider that these other domestic producers, and not 
imports, have usurped part of the petitioners' market sha re.  
2.66.  In the light of the known circumstances, an objective investigating authority could not have 
reached the same conclusion as KPPI did. Despite the finding of a "coincidence" of an upward 
trend (imports) and an alleged downward trend (petitioners'  market share), KPPI could not have 
treated this coincidence as "objective evidence" that the decrease in market share was caused by 
the increase in imports. The facts show that the decrease in the petitioners' market share was 
caused by the presence of th e other domestic producers in the market. Hence, KPPI's analysis of 
causation based on the coincidence in time was erroneous. KPPI's finding of an alleged coincidence 
based on a simple assertion made in paragraph 61 of the Final Disclosure Report cannot qu alify as 
"objective evidence" of causation, within the meaning of Article  4.2(b), first sentence, and cannot 
meet the standards of a "reasoned and adequate explanation" or a "detailed analysis" of causation 
under Articles 3.1, last sentence, and 4.2(c), re spectively.85 
2.67.  Furthermore, as noted by the complainants in their response to Panel's question 28,86 there 
was actually no coincidence between the alleged decline in the petitioners' market share and the 
increase in imports. In fact, table 7 of the Fina l Disclosure Report indicates that from 2010 -2012, 
being the most recent part of the POI, the petitioners' market share experienced steady growth. 
On the other hand, imports also increased at the same time.87  
2.68.  In addition, the complainants have provid ed evidence indicating that from 2010 onwards, 
while national consumption continued to grow, the petitioners' market share grew significantly 
larger than the market share of imported products. This fact further indicates that KPPI's causal 
                                                
82 Complainants' first written submission, para. 5.94. 
83 Complainants' first written submission, para. 5.95. 
84 Panel Report, US – Steel Safeguards , para. 10.305.  
85 Complainants' rebuttal submission, para. 2.85. 
86 Complainants' response to Panel's question 28. 
87 Complainants' rebuttal submission para. 2.86. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  link conclusion,  that "the trend of Petitioners' market shares decreased because it was absorbed by 
import market share as elaborated in table 7"88 is incorrect. In fact, it was the petitioners (and not 
imports) that benefitted the most during the most recent period of the  POI of the growth in 
national consumption.89 
2.69.  Furthermore, KPPI failed to discuss any other factors that might have affected the conditions 
of competition in the market; how these factors may have affected competition between domestic 
and imported pro ducts; and failed to provide any reasoned and adequate explanation in this 
respect. KPPI addressed only the relative position of national consumption, imports (including their 
market share), and the petitioners' market share as provided in Table 7 and para graph 41 of the 
Final Disclosure Report.90 In fact, the only manner in which KPPI addressed the competitive 
relationship between domestic products and imports in the context of causation was through a 
comparison between the trends in the petitioners' market  share and import trends.91 
2.70.  The complainants argued that KPPI failed to provide any data relating to the conditions of 
competition between the different imported and domestic products.92 KPPI failed to focus on the 
"nature of the interaction between im ported and domestic p roducts in the domestic market".93 A 
proper analysis of prices in the context of the conditions of competition would have cast doubt on 
the causal link between increased imports and serious injury.94 Since 2009, the average price of 
imports increased while the petitioners' selling price declined. Thus, while the petitioners' products 
became cheaper, imported products became more expensive. Nonetheless, the market share of 
imports (with a higher price) increased, while the market share of the petitioners' products (with a 
lower price) decreased. This fact indicates that there might have been factors other than prices 
(e.g. quality) that influenced the choice of consumers and the degree of actual competition in the 
market.95 
2.71.  Similarly, KPPI should have examined the extent to which there was a causal link between 
increased imports and serious injury, given the restrictions in competition imposed by the 
introduction of a technical standard on the products at issue. As Taiwan Steel & Iron I ndustry 
Association (TSIIA) noted in its "Comments on the Petition and Information", the introduction of 
this measure in 2009 by Indonesia's National Standardization Agency restricted the access of 
imports to the Indonesian market, and created a "monopolis tic" position for domestic products. As 
a result, domestic producers improved their ability to raise prices.96 
2.72.  Instead, Indonesia stated that KPPI's assessment of conditions of competition was reflected 
in Section  D of the Final Disclosure Report.97 However, the complainants note that Section D 
addresses the evaluation of other factors that allegedly caused serious injury to the domestic 
industry.98 Thus, Indonesia's response indicates that KPPI conflated the conditions of competition 
analysis, which is relevant under Article  4.2(b), first sentenc e, with the question of the 
non-attribution of injurious effects to the investigated imports, which is relevant under 
Article  4.2(b), second sentence.99 
2.73.  In relation to whether domestic and imported products were able to compete in terms of 
technical quality, KPPI's "analysis" was limited to the assertion that domestic products were 
manufactured on the basis of standards of the International Standardization Organization (ISO), 
and, therefore, were therefore ab le to compete with imports.100 This bald assertion cannot 
constitute a proper analysis of conditions of competition, and "objective evidence" of causation 
within the meaning of Article  4.2(b), first sentence, of the Agreement on Safeguards. Indonesia 
did not  explain whether imports were subject to the same standards; whether the use of the same 
                                                
88 Complainants' rebuttal submission para. 2.87. 
89 Complainants' rebuttal submission para. 2.89. 
90 First Written Submission para. 5.108.  
91 Complainants' response to Panel's question 30.  
92 Complainants' fir st written submission, para. 5.108.  
93 Panel Report, Argentina – Footwear (EC), para. 8.250.  
94 Complainants' opening statement at the first meeting of the Panel with the parties , para. 5.1. 
95 Complainants' rebuttal submission para. 2.92; complainants' respo nse to Panel's question 30.  
96 Complainants' rebuttal submission para. 2.93; complainants' response to Panel's question 30.  
97 Indonesia's response to Panel's question 34, para. 55. 
98 Complainants' rebuttal submission para. 2.90. 
99 Complainants' rebuttal sub mission para. 2.90. 
100 Complainants' rebuttal submission para. 2.90. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  standards established competition in the market; or whether other considerations, such as price, 
quality, or the relatively dominant position of one of the suppliers, may have had a bearing in the 
condition s of competition in the market.101 
2.5.2  Non-attribution: KPPI failed to explain how factors other than the investigated 
imports caused serious injury to the domestic industry  
2.74.  KPPI's analysis of non -attribution wa s made dependent on whether any interested parties 
raised arguments concerning the existence of factors other than imports affecting the domestic 
industry.  While the Final Disclosure Report contained a discussion of such other factors as 
increased national  consumption, domestic competition, and the domestic product's ability to 
compete with imports, it did not contain an analysis of other factors that would have had a direct 
impact on the indicators that determined the alleged serious injury to the domestic  industry. These 
other factors are the presence of other domestic producers (having a potential impact on market 
share) and the existence of significant investments by domestic producers (having a potential 
impact on the situation of profits and losses).102 
2.75.  Concerning the domestic industry's decline in market share, KPPI did not take into account 
the other domestic producers, which accounted for 23 per cent of domestic production.103 In the 
complainants' view, none of the findings referred to by Indonesia  reflects a proper non -attribution 
analysis concerning the presence of other domestic producers threatening to cause serious injury 
to the petitioners. These findings were made as part of the evaluation of serious injury and not in 
the context of the deter mination of the causal link. Furthermore, KPPI's finding that imports 
increased, while the petitioners' market access allegedly decreased, does not provide any 
information with respect to the presence of other domestic producers in the market. There is no 
finding in the Final Disclosure Report in which KPPI clearly identified this other factor, examined 
whether it caused injurious effects to the petitioners, or separated those effects from those 
attributable to the investigated imports.104 
2.76.  For example, tables 7 and 8 of the Final Disclosure Report indicate that from 2010 onwards 
the petitioners experienced a significant growth in their market share. The complainants have 
presented evidence to show that the increase in the petitioners' market share outstr ipped the 
increase in the market share of imports. This indicates that from 2010 onwards, there was no 
impairment of the petitioners' market share that could have been attributable to imports. The only 
period in the POI when the petitioners' experienced a decline in their market share was between 
2008 and 2010. However, imports also experienced a simultaneous decline in market share, while 
the market share of other domestic producers doubled in size. Therefore, there is no clear 
indication that the petition ers' loss of market share at this time is attributable to imports, but there 
is enough evidence on the record to show that the market share losses experienced by the 
petitioners could have been (at least partly) attributed to the contemporaneous increase i n market 
share of the other domestic producers.105  
2.77.  With respect to the alleged decline in profits, KPPI noted that during the POI, the domestic 
industry increased its installed capacity significantly.106 This means that the domestic industry 
expanded, i ndicating that there was increased investment in these facilities. KPPI however did not 
examine the question of whether the increase in losses may be explained by increased costs, 
including increased labour costs, caused by this additional capacity.107 The c omplainants note that 
KPPI's analysis and findings with respect to the expansion of the installed capacity was meant to 
address a different situation: the importers' allegation that the petitioners' capacity could not meet 
the demand of bare galvalume from  the downstream industry, and that this was the real 
development that led to the increase in imports. As a result, KPPI concluded that the increase in 
imports was not caused by the domestic industry's inability to meet the national consumption.108  
                                                
101 Complainants' rebuttal submission para. 2.91. 
102 Complainants' f irst written submission para, 5.110.  
103 Complainants' f irst written submission para, 5.111 . 
104 Complainants' rebuttal submiss ion, para. 2.98. 
105 Complainants' rebuttal submission, paras. 2.99 -2.100.  
106 Complainants' f irst written submission, para. 5.112.  
107 Complainants' f irst written submission, para. 5.112.  
108 Complainants' rebuttal submission, para. 2.101 . WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  2.78.  Thus, KPPI's analysis was not a non -attribution analysis within the meaning of Article  4.2(b), 
second sentence, of the Agreement on Safeguards.109 Moreover, the fact that the increase in 
national consumption may have encouraged the expansion of installed capaci ty does not negate 
the fact that the petitioners' losses could have been the result (at least partially) of the cost of 
expansion. There was no separation of these injurious effects from the serious injury that was 
determined; there was also no non -attribu tion of those effects on the investigated imports.110 
2.5.3  KPPI's failure to establish a causal link in accordance with Article  4.2(b) implies 
also the inconsistency with Article  XIX:1(a) of the GATT  1994  and Article  2.1 of the 
Agreement on Safeguards  
2.79.  Indonesia has argued that the complainants failed to explain how their claim based on 
Article  4.2(b) results in inconsistencies with Article  XIX of GATT and Articles 2.1, 3.1 and 4.2 of the 
Agreement on Safeguards.111  
2.80.  Indonesia's argument ignores the  legal relationship between, on the one hand, 
Article  4.2(b), and, on the other, Article  XIX of the GATT  1994 and Articles 2.1, 3.1 and 4.2(c) of 
the Agreement on Safeguards. According to Article  1 of the Agreement on Safeguards, the 
agreement establishes "rules for the application of safeguard measures which shall be understood 
to mean those measures provided for in Article  XIX of GATT  1994." Thus, by virtue of Article  1, 
any violation of the rules for the application of safeguard measures, including Article 4.2(b) of the 
Agreement on Safeguards, entails a violation of Article  XIX of the GATT  1994.  
2.81.  Similarly, as the Appellate Body has stated that " Article  2.1 reflects closely the 'basic 
principles' in Article  XIX:1(a) of the GATT  1994 and also sets f orth 'the conditions for imposing a 
safeguard measure'". The Appellate Body has further noted that "the conditions set forth in 
Article  2.1 are further elaborated in Article  4.2". The Appellate Body's statement necessarily 
implies that any violation of the  conditions set forth in Article  4.2 also results in a violation of 
Article  2.1, and, ultimately, of Article  XIX of the GATT  1994. 
2.82.  Furthermore, Indonesia's argument also ignores that a violation of Article  4.2(b) is 
established through the absence of  a "reasoned and adequate explanation" and a "detailed 
analysis" of causation, as required by Articles 3.1, last sentence, and 4.2(c) of the Agreement on 
Safeguards. Accordingly, any violation of Article  4.2(b) has to be found through a violation of 
Articles 3.1, last sentence, and 4.2(c) of the Agreement on Safeguards.  
2.5.4  Conclusion  
2.83.  In light of the above, the complainants reiterate that KPPI's causal link determination is 
inconsistent  with Article  XIX:1(a) of the GATT  1994 and Articles 2.1, 3.1, 4.2(b), and 4.2(c) of the 
Agreement on Safeguards.  
2.6 Parallelism  
2.84.  The complainants submit that Indonesia failed to ensure the required "parallelism" between 
the product scope of the investigation and the product scope of the safeguard measure at iss ue. 
Indonesia, therefore, acted inconsistently with Articles 2.1, 4.2(a), and 4.2(b) of the Agreement on 
Safeguards. In particular, following the completion of the investigation at issue, Indonesia 
narrowed down the product scope of the safeguard measure f rom the subject product with 
"thickness not exceeding 1.2 mm" to that with "thickness not exceeding 0.7 mm". Indonesia has 
not disputed the existence of this gap. It is thus clear that Indonesia failed to comply with the 
requirement of parallelism.  Moreove r, given Indonesia's failure to observe this requirement, 
Indonesia also failed to provide a reasoned and adequate explanation of how its determinations 
based on a broader product scope satisfied the requirements of the afore -mentioned provisions 
within th e meaning of Article  3.1 (last sentence) of the Agreement on Safeguards.112 
                                                
109 Complainants' rebutta l submission, para. 2.102.  
110 Complainants' rebuttal submission, para. 2.103.  
111 Indonesia's first written submission, paras. 152 -155. 
112 Complainants' rebuttal submission, paras. 2.110 -2.116; complainants' first written submission, 
para. 5.115.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  2.85.  The requirement of parallelism has been inferred from the parallel language in Articles 2.1 
and 2.2 of the Agreement on Safeguards. These provisions both refer to "product … be ing 
imported". The Appellate Body has clarified that the term "product" in Articles 2.1 and 2.2 has the 
same meaning in both provisions. However, the requirement of parallelism permeates the text of 
the whole Agreement on Safeguards, and can be derived fro m the use of similar notions in 
different parts of Article  2.1, Article  4.2, as well as Article  XIX:1(a) of the GATT  1994.113 
2.86.  If the product scope of the safeguard investigation does not correspond to that of the final 
measure, it calls into question w hether the imports covered by the measure, alone, would have 
given rise to the same positive findings on increased imports, serious injury (or threat thereof) and 
causal link in accordance with Articles 2.1, 4.2(a) and 4.2(b) of the Agreement on Safeguards  and 
Article  XIX:1 of the GATT  1994. For example, in US – Steel Safeguards , the Appellate Body 
clarified that "imports excluded  from the application of the safeguard measure must be considered 
a factor 'other than increased imports' within the meaning of Article 4.2(b)", and that "[t]he 
possible injurious effects that these excluded imports may have on the domestic industry must not 
be attributed to imports included in the safeguard measure pursuant to Article  4.2(b)".114 In other 
words, in the absence of the  correspondence ("parallelism") between the product  scope  of the  
investigation and that of the safeguard measure, the results of the investigation become 
unreliable.115  
2.87.  The Appellate Body has clarified that to make a prima facie  case of the inconsiste ncy of a 
safeguard with the requirement of parallelism, the complainant must merely demonstrate the 
existence of a gap between the imports covered by the investigation and those falling within the 
scope of the measure. If the gap is established, it is incu mbent upon the respondent to refer the 
panel to a reasoned and adequate explanation on the record that establishes explicitly that the 
latter set of imports, by itself, satisfies the conditions for the application of the measure, as set out 
in Article  2.1 and elaborated in Article  4.2 of the Agreement on Safeguards.116 
2.88.  As noted, Indonesia did not dispute the fact that KPPI failed to observe the requirement of 
parallelism. Indonesia, however, argued that the requirement of parallelism does not apply to t he 
facts in the present dispute, as this requirement prohibits only discrimination based on origin. The 
complainants disagree. The requirement of parallelism addresses concerns that arise equally with 
respect to narrowing the product scope of the safeguard  measure, as well as with respect to 
limiting the product sources to which the measure applies. In both of these situations, it seeks to 
eliminate any room for arbitrariness or manipulation by investigating authorities that may turn the 
application of a sa feguard into a means of disguised discrimination or a disguised restriction on 
international trade. If, in any of these situations, the requirement of parallelism is not observed, 
one would not be able to state with certainty that the imports subject to th e measure, by 
themselves, satisfy the conditions for the application of the measure set out in the Agreement on 
Safeguards. This view was also supported by many third parties in this dispute.117 
2.89.   In addition, Indonesia contended that the narrowing of t he product scope of the measures is 
justified under Article  5.1 (the first and last sentences) of the Agreement on Safeguards. According 
to Indonesia, a measure with a narrower scope is less trade restrictive and more suitable for the 
achievement of Indone sia's objective to remedy serious injury and facilitate adjustment. The 
complainants, however, explained that Article  5.1 (the first and last sentences) does not serve as 
a justification for violations of other obligations under the Agreement on Safeguards , including the 
requirement of parallelism. On the contrary, the first sentence of Article  5.1 imposes an obligation 
with respect to the manner in which a safeguard measure is applied, by restricting the extent of 
the latter to what is necessary to address  the injury (or threat thereof) and to facilitate 
adjustment. Likewise, the last sentence of Article  5.1 restricts a Member's ability to use means 
                                                
113 Complainant s' rebuttal submission, para. 2.113 (citing Appellate Body Report, US – Wheat Gluten , 
para. 96; Appellate Body Report, US – Steel Safeguards,  para. 450); complainants' response to Panel's 
question 36.  
114 Appellate Body Report, US – Steel Safeguards , para. 450. 
115 Complainants' rebuttal submission, para. 2.114.  
116 Complainants' rebuttal submission, para. 2.115 (citing Appellate Body Report, US – Line Pipe , 
paras.  186-188).  
117 Complainants' rebuttal submission, paras. 2.117 -2.118 (citing Australia's t hird party o ral statement  
at the first meeting of the Panel with the parties , para. 9; EU's third party oral statement at the first meeting of 
the Panel with the parties , paras. 3, 6; and  EU's response to Panel's question 4, para. 9). See also 
complainants' response t o Panel's question 36 (citing Japan's third party submission, para. 53). WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  that are not conducive to achieving the objectives of remedying or preventing serious injury (or 
threat there of) and facilitating the adjustment.118 
2.90.  In fact, Article  5.1 can be interpreted in a coherent and harmonious manner with the 
requirement of parallelism and other requirements of the Agreement on Safeguards. In particular, 
a Member may exclude imports o f certain models of the subject product from the scope of both 
the investigation and the application of the measure if, during the investigation, its investigating 
authority determines that the non -excluded models satisfy, by themselves, the requirements o f 
Articles 2.1 and 4.2, and the excluded models were considered in the authority's non -attribution 
analysis. In this case, the requirement of parallelism is not violated, as the product scopes of the 
investigation and of the safeguard measure are the same.  Furthermore, based on Article  5.1 
(first sentence), a Member may reduce the level or quantum of the safeguard it imposes on all 
models  of the investigated product. This measure would also be consistent with the requirement of 
parallelism.119 
2.91.  On the ot her hand, as the  EU pointed out, if, during the investigation,  the authority did not 
differentiate between various models (e.g. A and B) of the subject product, but, following the 
completion of the investigation, proposes to narrow down the sco pe of the me asure to only 
Model  A, it will be obligated to "re -do the investigation in such a way so as to collect relevant data 
with respect to that particular model" . The failure of the investigating authority to re -do its 
investigation would lead to a breach of the  requirements of Articles  2.1 and 4.2 (including the 
non-attribution obligation under Article  4.2(b), second sentence), as well as Article  5.1, 
first sentence of the Agreement on Safeguards.120 
2.92.  In the present case, n either the Final Disclosure Report, nor any other document on the 
record suggests that, in its findings, KPPI had differentiated between different sub -categories of 
the subject product, in particular, the sub -category of the product with thickness not exceeding 
0.7 mm and that  with thickness  not exceeding 1.2mm.  Indonesia alleged that "[t]he national 
interest consideration stage revealed that the threat to serious injury during the period of 
investigation was mostly caused by imports of bare galvalum w ith thickness not exceeding 
0.7 mm". This  is, however, an ex-post explanation, which is not reflected in the determinations 
under review. The Panel should, therefore, disregard this argument.121 
2.93.  In addition, Indonesia cited the panel reports in Ukraine – Passenger Cars  and US – Steel 
Safeguar ds in support of its position that amendments of proposed safeguard measures based on 
political decisions are common. The complainants, however, demonstrated that Indonesia's 
references to these cases are inapposite. In Ukraine – Passenger Cars , the invest igating authority 
did not exclude any product in respect of which the investigation was conducted from the 
application of the measure. In US – Steel Safeguards , even though the final measure was imposed 
on the group of the products that was narrower than t he group of the products investigated 
initially, the investigating authority had conducted a segregated analysis of injury with respect to 
each of these product groups and reached separate determinations on each of them.122  
2.94.  Indonesia also alleged that  it would be virtually impossible to obtain import data only for 
subject products with thicknesses not exceeding 0.7mm. This statement is inconsistent with 
Indonesia's own actions. If Indonesia did not possess the relevant data on the increased imports, 
there was no basis for KPPI's decision to exclude products from the scope of the safeguard 
measure. Furthermore, as Indonesia confirmed in its responses to Panel's questions 37 
(paragraph  60) and 39, KPPI did apparently possess the data on injury with respec t to the models 
with thicknesses not exceeding 0.7mm. To be clear, however, the Final Disclosure Report does not 
analyse the injurious effects of those specific models.123 
                                                
118 Complainants' rebuttal submission, paras. 2.117 -2.119; complainant s' response to Panel's 
question  40. 
119 Complainants' rebuttal submission, para. 2.120.  
120 Complainants' rebuttal subm ission, para. 2.121 (citing EU's response to Panel's question 5, 
para. 13). 
121 Complainants' rebuttal submission, para. 2.122 (citing Indonesia's response s to Panel's questions 37 
and 39 ). 
122 Complainants' rebuttal submission, paras. 2.123 -2.125 (citing Panel Report, Ukraine – Passenger 
Cars, paras. 2.7, 7.3 -7.4; and Panel Report, US – Steel Safeguards , paras. 1.7 -1.17, 1.30 -1.34). 
123 Complainants' rebuttal submission, para. 2.126.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  2.95.  Finally,  Indonesia argued that if the Panel were to agree with the complainants'  broad 
interpretation of the requirement of parallelism, this would add to or diminish the rights and 
obligations of Members under the Agreement on Safeguards, contrary to the requirements of 
Article  3.2 of the DSU. As explained, however, the complainants'  interpretation of the requirement 
of parallelism is based on the text, context, object and purpose of the Agreement on Safeguards 
and Article  XIX of the GATT  1994. This interpretation does not expand the scope of Members' 
rights or obligations beyond thos e that already exist in relevant provisions of WTO covered 
agreements.124  
2.96.  In light of the foregoing, by imposing the safeguard measure at issue on a narrower product 
scope, without providing any reasoned and adequate explanation as to why such alterat ion of the 
product scope was warranted and supported by the underlying investigation, Indonesia acted 
inconsistently with Articles 2.1, 3.1, 4.2(a) and 4.2(b) of the Agreement on Safeguards.  
2.7 Violation of the Most -Favoured -Nation clause  
2.97.  The compla inants have argued that pursuant to Regulation No 137.1/PMK.011/2014, 
Indonesia exempts the subject products originating in the listed 120 Members ("exempted 
Members") from the application of the specific duty. However, "like" products originating in the 
territory of Members that are not on the list, including the complainants, are subject to the specific 
duty. It is thus clear that Indonesia's safeguard measure grants an "advantage, favour, privilege 
or immunity" to the subject products from the exempted M embers that is not accorded 
immediately and unconditionally to "like" products originating from all WTO Members. Indonesia's 
measure is, therefore, inconsistent with Article  I:1 of the GATT  1994.  
2.98.  Indonesia has not rebutted the complainants' prima fa cie claim, nor has it presented a valid 
defence against this claim. Instead, Indonesia submits that Article  9.1 of the Agreement on 
Safeguards justifies the inconsistency of its measure with Article  I:1 of the GATT  1994,125 in that it 
"obliges Members applyi ng a safeguard measure to exclude imports from developing country 
Members".126 Indonesia argues that its safeguard measure is consistent with Article  9.1 of the 
Agreement on Safeguards as all exempted Members are developing countries.127 
2.99.  It has been esta blished in case law that Article  9.1 of the Agreement on Safeguards can be 
invoked to justify a derogation from Article  I:1 of the GATT  1994.128 The complainants submitted, 
however, that Indonesia's safeguard measure is not justified under Article  9.1 of the  Agreement on 
Safeguards because it does not fulfil the requirements of this prov ision. Indeed, imports from 
six of the exempted Members, i.e. European Union members Bulgaria, Croatia, Hungary, Lithuania, 
Poland, and Romania cannot qualify as imports comin g from developing countries .  
2.100.  Specifically, the complainants explained that within the WTO, the general rule to determine 
a Member's development status is through "self -selection" and not any other criteria, including the 
International Monetary Fund 's development status list suggested by Indonesia.129 The 
complainants have presented evidence indicating that, upon their accession to the WTO in 1996 
and 2000 respectively, Bulgaria and Croatia  both made statements to the effect that they were not 
developi ng countries for the purposes of their WTO activities.130 
2.101.  In addition, Members who provide GSP schemes pursuant to paragraph 2(a) of the Enabling 
Clause131 consider themselves as developed country  Members, because this provision 
contemplates preferentia l tariff treatment "accorded by developed [Members] to products 
originating in developing countries". (emphasis added)  The European Union grants tariff 
preferences to WTO developing country Members pursuant to its GSP scheme. Prior to their 
accession to the  European Union, Hungary and Poland maintained their own GSP schemes. These 
two countries are original WTO Members that acceded to the European Union on 1 May 2004. In 
                                                
124 Complainants' opening statement at the second meeting of the Panel with the p arties, para. 6.3. 
125 Indonesia's opening statement at the first meeting of the Panel with the parties, para. 64. 
126 Indonesia's first written submission, para. 213. 
127 Indonesia's first written submission, para s. 213 and 214.  
128 Panel Report, Dominican Republ ic – Safeguard Measures , paras.  7.68 and 7.71.  
129 Indonesia's rebuttal submission, paras. 123.  
130 Complainant's response to Panel's question 42.  
131 GATT Decision of 28 November 1979.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  that regard, these two countries would thus be considered developed country Members with in the 
WTO before and after their European Union accessions.  
2.8 Notification  
2.102.   The complainants submitted that Indonesia's notifications under Artic les 12.1(b) 
and 12.1(c) of the Agreement on Safeguards did not satisfy the requirements under Article  12.2. 
Indonesia acted inconsistently with this provision, because it failed to provide in its notification 
dated 26 May 2014 "all pertinent information".132  
2.103.  According to Article  12.2, when making notifications under Articles 12.1(b) and (c), 
Members  must provide the Committee on Safeguards with "all pertin ent information", including 
(i) evidence of serious injury or threat thereof caused by increased imports within the meaning of 
Article  4.2 of the Agreement on Safeguards, (ii) the precise descriptio n of the product involved and 
the proposed measure, (iii) the proposed date of introduction, and (iv) the expected duration and 
timetable for progressive liberalization.133 
2.104.   In Korea – Dairy , the Appellate Body clarified that "the text of Article  12.2 makes it clear 
that a Member proposing to apply a safeguard measure is required to provide the Committee on 
Safeguards with all pertinent, not just any pertinent, information", and that "such information shall 
include certain items listed immediately afte r the phrase 'all pertinent information'" in 
Article  12.2.134  
2.105.  In addition, the complainants are of the view that Article  12.2 of the Agreement on 
Safeguards, read in its context, and in the light of its object and purpose, requires that all 
pertinent  information be notified before  the measure is applied. Moreover, Article  8.1 of the 
Agreement of Safeguards and Article  XIX:2 of the GATT  1994 further supports this 
interpretation.135 
2.106.  In the present dispute, KPPI issued its Final Disclosure Report on  31 March 2014; Indonesia 
notified its threat of serious injury determination under Article  12.1(b) on 26 May 2014; the 
Minister of Finance promulgated Regulation No 137.1/PMK.011/ 2014 imposing the measure on 
15 July 2014; and Indonesia notified its decisi on to impose the measure at issue under 
Article  12.1(c) on 23 July 2014, after the measure had already entered into force. Indonesia's 
notification under Article  12.1(b), which is the only relevant notification circulated before the entry 
into force of the  measure at issue , does not sufficiently describe the proposed measure, the 
amount of safeguard duty, the date of introduction of the measure and timetable for the 
progressive liberalization of the measure.136 Further, KPPI has failed to evaluate a mandatory  
factor for its injury analysis, i.e. the rate and amount of the increase in imports of the subject 
product in relative terms within the meaning of Article  4.2(a).137  
2.107.  Indonesia argued that the subsequent notification, dated 23 July 2014, could have r ectified 
these deficiencies.138 However, this notification was submitted after the measure took effect. 
Indonesia could not rectify the deficiencies of its notification under Article  12.1(b) by submitting a 
further notification too late to fulfil the purpose s for which the notification of "all pertinent 
information" was required in the first place.139 In any event, Indonesia also failed to provide all of 
the missing pertinent information in the subsequent notification dated 23 July 2014, in particular 
the rate and amount of the increase in imports in relative terms. Therefore, even if read together, 
both notifications are inconsistent with Article  12.2.140 
                                                
132 Complainants' rebuttal submission, para. 2.138.  
133 Complainants' first writ ten submission, para. 5.153; complainants' opening statement at the 
first meeting  of the Panel, para. 8.2; complainants' rebuttal submission, para. 2.138.  
134 Appellate Body Report, Korea – Dairy , para. 107 (original emphasis); complainants' rebuttal 
submiss ion, para. 2.141.  
135 Complainants' rebuttal submission, para. 2.145; complainants' response to Panel's question 43.  
136 Complainants' rebuttal submission, para. 2.156; complainants' first written submission, para. 5.162.  
137 Complainants' first written submissi on, para. 5.164.  
138 Indonesia's rebuttal submission, para. 128. 
139 Complainants' rebuttal submission, para. 2.142; complainants' response to Panel's question 43.  
140 Complainants' rebuttal submission, para. 2.148.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  2.108.  Indonesia relied on the Appellate Body report in US – Wheat Gluten  to argue that its 
notifications dat ed 26 May 2014 and 23 July 2014 complied with the requirements of 
Article  12.2.141 That case, however, does not stand for the proposition that a Member is entitled to 
notify "all pertinent information", or rectify deficiencies in its notification of a findin g of serious 
injury under Article  12.1(b), after it had already applied the safeguard measures. In US – Wheat 
Gluten , the Appellate Body discussed the narrower question of whether a Member can notify its 
decision to apply or extend a safeguard measure with in the meaning of Article  12.1(c) after the 
decision to apply or extend the measure was taken. It answered this question in the affirmative. 
However, even if a Member is entitled to submit its notification under Article  12.1(c) after the 
adoption of the sa feguard measure, that Member must still comply with the requirements of 
Article  12.2. It can do so by notifying "all pertinent information" in preceding notifications, for 
example, a notification under Article  12.1(b).142  
2.109.  Furthermore, the complainant s agree with the European Union that the finding of the 
Appellate Body in US – Wheat Gluten  must be read in the context of the specific facts of the case. 
In that dispute, the safeguard measure at issue was a quota, the effect of which does not 
materialize  immediately after the measure is imposed. In contrast, in the present dispute, the 
safeguard measure is imposed in the form of a duty, which has immediate effects. In these 
circumstances, it is important that the Members other than the one imposing the me asure are fully 
aware of the details of the measure before its entry into force and before its effects materialize in 
order to raise concerns in the Committee on Safeguards, or seek consultations under Article  12.3 
on how to maintain a substantially equiva lent level of concessions.143 
2.110.   In addition, as Japan noted in its response to Panel's Question 6, the Appellate Body's 
findings in US – Wheat Gluten  do not address the question of whether there is a violation of 
Article  12.2 in circumstances similar t o the present dispute. Japan also pointed out that whether a 
notification complies with Article  12.2 requires an examination of whether the Member proposing 
to apply the measure notified all pertinent information, including the proposed  measure and the 
proposed  date of introduction.144 This is impossible in a case where the measure has already 
entered into force, because the Member is no longer proposing  to apply a measure.145  
2.111.  Indonesia further argued that it could not provide all the information requir ed in its 
notification of 26 May 2014, as the final decision on some of the elements of the "pertinent 
information" was taken through the promulgation of Regulation No. 137/2014 on 15 July 2014. 
While the complainants appreciate Indonesia's clarification t hat it is the Ministry of Finance that 
takes the decision to apply a safeguard measure, this fact did not preclude Indonesia from 
notifying "all pertinent information" in a manner consistent with Article  12.2, and, thereby 
respecting the rights of other Me mbers under this provision. It is a well -established principle that a 
Member cannot invoke its internal procedures or legislation to justify a violation of its obligations 
under WTO law. Moreover, Indonesia did not explain why certain pertinent information  could not 
have been included in Indonesia's 26 May notification, while other items could be included in that 
notification. In fact, the proposed measure and the timetable for the progressive liberalization 
were already set out in the Final Disclosure Repo rt, published on 31 March 2014, and have not 
been changed since.146  
2.112.  In light of the foregoing, Indonesia acted inconsistently with Article  12.2 of the Agreement 
on Safeguards by failing to notify all pertinent information in its 26 May notification, even if read 
together with its 23 July notification.  
                                                
141 Indonesia's first written submission, para. 240; Indonesia's opening statement at the first meeting of 
the Panel with the parties , paras. 66 -68; Indonesia's rebuttal submission, para. 128. 
142 Complainants' responses to Panel's question 44; complainants' rebuttal submission, para. 2.150.  
143 European Un ion's response to Panel's Question 6, para. 17; complainants' rebuttal submission, 
para. 2.151.  
144 Japan's response to Panel's Question 6, para. 11. 
145 Complainants' rebuttal submission, para. 2.152.  
146 Complainants' rebuttal submission, para. 2.156 (citing Article 27 of the 1969 Vienna Convention on 
the Law of Treaties; Appellate Body Report, Brazil – Aircraft (Article 21.5 – Canada) , para. 46; and Panel 
Report, Argentina – Textiles and Apparel , footnote 198).  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  2.9 Consultations  
2.113.  Indonesia's failure to provide a meaningful opportunity for consultations prior to the 
application of the safeguard measure at issue is inconsistent with Article  XIX:2 of the GATT 1994 
and Article  12.3 of the Agreement on Safeguards. Indonesia did not respond adequately to the 
complainant's requests for prior consultations, nor did it provide Members with all pertinent 
information enabling them to review the proposed measure in a meaningful manner and to engage 
in the consultations with Indonesia.147  
2.114.  The Appellate Body in US – Line Pipe , affirming its findings in US – Wheat Gluten , noted 
that consultations must be held prior to  the application of the measure in order to affor d the 
Members an adequate opportunity to consider the likely consequences of the measure before it 
takes effect.148 This position was followed by the panel in Ukraine – Passenger Cars  when it 
observed that " Article  12.3 gives affected Members a right to an a dequate opportunity for 
consultations before, not after , a safeguard measure is applied".149 
2.115.  Indonesia alleged that it provided multiple opportunities for prior consultations but the 
complainants failed to seize these opportunities.150 This allegation i s unfounded. In fact, 
Chinese  Taipei  reminded KPPI of its obligation to hold prior consultations under Article  12.3 on 
three occasions, but KPPI simply ignored Chinese  Taipei 's repeated requests. Chinese  Taipei  was 
not required under Article  12.3 to contin ue repeating its requests for prior consultations.151 With 
respect to Viet Nam, its first letter dated 24 April 2014 requesting consultations did not receive an 
answer until 4 July 2014, i.e. more than two months later. This answer was provided just 
three  days before the Minister of Finance signed Regulation No. 137.1/PMK.011/2014 imposing the 
measure,152 and less than two weeks before the regulation was promulgated. Moreover, KPPI sent 
its answer on Friday 4 July 2014, and proposed to schedule the consultation s in Jakarta on 
Tuesday of the following week, 8 July 2014, i.e. only two working days later and after the decision 
to impose the safeguard had already been taken.153 Thus, Indonesia did not provide the 
complainants with a meaningful opportunity to engage  into consultations.  
2.116.  Indonesia argued that since Hoa Sen (Viet Nam's exporter) and Viet Nam received the Final 
Disclosure Report in May 2014, they had sufficient information to prepare for consultations.154 
However, Viet Nam never received the report fro m KPPI directly , despite its requests dated 
24 April 2014 and 16 June 2014,155 and Chinese  Taipei  received it only after the measure entered 
into force.156 As the panel in Ukraine – Passenger Cars  explained, Article  12.3 requires that all 
Members having substa ntial interests as exporters be given an opportunity for prior 
consultations.157 Indonesia had to provide this opportunity by, inter alia , submitting a proper 
notification to the WTO Committee on Safeguards (as opposed to particular exporters) consistent 
with the requirements of Article  12.2. Indonesia failed to do so.158 
2.117.  It can hardly be disputed that the complainants have a "substantial interest" as exporters 
of the product concerned within the meaning of Articles XIX:2 of the GATT  1994 and Article  12.3 of 
the Agreement on Safeguards. As acknowledged by KPPI in the Final Disclosure Report, 
Chinese  Taipei 's share of Indonesia's total imports of the subject product was 21 per cent in 2012, 
whereas Viet Nam's share for the same products in the same year wa s 60.04 per cent, making 
                                                
147 Complainants' opening statement at the second m eeting of the Panel with the parties , para. 9.1. 
148 Appellate Body Report, US – Line Pipe , para. 108 (quoting Appellate Body Report, US – Wheat 
Gluten , para. 136).  Complainants' first written submission, para. 5.175; Complainants' rebuttal submission, 
para. 2.160.  
149 Panel Report, Ukraine – Passenger Cars , para. 7.521 (emphasis added); complainants' rebuttal 
submission, para. 2.160.  
150 Indonesia's rebuttal submission, paras. 134, 137, 138 and 140.  
151 Complainants' rebuttal submission, paras. 2.167 -2.168; compla inants' opening statement at the 
second meeting of the Panel , para. 9.2. 
152 Indonesia's response to Panel's question 46, para. 71. 
153 Complainants' rebuttal submission, para. 2.165.  
154 Indonesia's rebuttal submission, para. 140. 
155 Complainants' responses to P anel's questions 11 and 45; complainants' rebuttal submission , 
para. 2.169.  
156 Complainants' responses to Panel's questions 11 and 45; complainants' rebuttal submission , 
para. 2.169.  
157 Panel Report, Ukraine – Passenger Cars, para. 7.522.  
158 Complainants' ope ning statement the second meeting of the Panel with the parties , para. 9.4. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  them two of the three primary exporting countries to Indonesia. Thus, it is clear that the 
obligations under Article  XIX:2 of the GATT  1994 and Article  12.3 of the Agreement on Safeguards 
apply in this dispute.159 
2.118.  Indonesia re lied on a statement in Korea – Dairy  to argue that "consultations may be 
adequate even in circumstances where prior notifications of a finding of serious injury or of any 
proposed measure are incomplete".160 In that dispute, however, the panel did not sugges t that the 
opportunity for consultations may be considered adequate even when the Member proposing to 
apply a safeguard did not furnish some of the pertinent information listed in Article  12.2. Indeed, 
the panel, in a different passage, held that " Article  12.1, 12.2 and 12.3 taken together makes it 
clear that before a definitive safeguard measure may be applied , the Member proposing to apply it 
must notify all the pertinent information regarding the proposed measure and the factual basis 
(the injury finding ) for applying it, and must provide an opportunity for consultations with 
Members whose trade will be affected by the proposed measure".161 
2.119.  Indonesia further attempted to justify its failure to provide adequate opportunities for prior 
consultations by  arguing that the last sentence of Article  XIX:2 of the GATT  1994 allows Members 
to apply provisional measures without holding these consultations. Indonesia appears to suggest 
that the safeguard at issue is a "provisional measure" within the meaning of th at Article.162 
However, the imposition of "provisional measures" is subject to certain strict conditions, the 
fulfilment of which Indonesia has not demonstrated. For example, Indonesia did not establish that 
the alleged "provisional measure" was taken in "cr itical circumstances", or that the delay in the 
imposition of the measure would have caused damage to Indonesia's industry that would be 
difficult to repair, as envisaged under Article  XIX:2. Moreover, according to Article  XIX:2, the 
consultations must tak e place immediately after the provisional measure takes effect, which was 
not the case here. Indonesia's allegation that the measure at issue is a "provisional measure" is 
not supported by any evidence. Indonesia cannot invoke this provision by merely stat ing that 
"such is the case in the present case",163 without explaining why this provision would apply to the 
facts of this dispute.164 
2.120.  Lastly, Indonesia argues that, during the consultations that took place after the imposition 
of the safeguard measure,  the complainants did not raise the issue of the substantially equivalent 
level of concessions and other obligations that a Member proposing to impose a safeguard must 
endeavour to maintain under Article  8.1.165 The complainants fail to see the relevance of this 
argument to their claim. As explained, there were no prior consultations between Indonesia and 
any of the complainants before the imposition of the safeguard, nor were adequate opportunities 
for these consultations provided.166 
2.121.  Regardless of whet her consultations were held or not, Indonesia failed to provide sufficient 
information within the meaning of Article  12.2 of the Agreement on Safeguards to allow for the 
possibility, through consultations, for a meaningful exchange on the proposed measure.  As has 
been previously discussed, Indonesia's notification dated 26 May 2014 does not contain all 
pertinent information. Thus, in the absence of sufficient information, Indonesia could not have 
provided an "adequate opportunity" for prior consultations wi thin the meaning of Article  12.3 of 
the Agreement on Safeguards.167 
2.122.  In light of the foregoing, Indonesia acted inconsistently with Article  XIX:2 of the GATT  1994 
and Article  12.3 of the Agreement on Safeguards by failing to provide adequate opportunit ies for 
prior consultations with Members having substantial interests as exporters.  
                                                
159 Complainants' first written submission, para. 5.188.  
160 Indonesia's opening statement at the first meeting of the Panel with the parties , para. 79; see also 
Indonesia's first writ ten submission, paras. 262 -263 (quoting Panel Report, Korea – Dairy, para. 7.150).  
161 Panel Report, Korea – Dairy , para. 7.120 (emphasis added);  complainants' rebuttal submission, 
paras. 2.1 70-2.171.  
162 Indonesia's rebuttal submission, para. 139. 
163 Indonesia 's rebuttal submission, para. 139. 
164 Complainants' opening statement at the second meeting of the Panel with the parties, para. 9.3. 
165 Indonesia's rebuttal submission, para. 142. 
166 Complainants' opening statement at the second meeting of the Panel with the  parties, para. 9.5. 
167 Complainants' first written submission, para. 5.189.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  3 CONCLUSION  
3.1. In the light of the foregoing, the complainants request the Panel to find that Indonesia acted 
inconsistently with Article  XIX of the GATT  1994 and the pr ovisions of the Agreement on 
Safeguards. Thus, the complainants request the Panel to recommend Indonesia to bring the 
measures into compliance with its WTO obligations.  
4 SUGGESTION FOR IMPLE MENTATION  
4.1. The complainants  have repeatedly shown that Indone sia's safeguard measure violates various 
WTO provisions relating to safeguard measures. The nature and extent of Indonesia's violations 
warrant only one solution: the complete withdrawal of Indonesia's safeguard measure. Therefore, 
the complainants request  this Panel to make a suggestion under Article  19.1 of the DSU that the 
only manner in which Indonesia can bring the safeguard measure at issue into conformity with its 
WTO obligations is by withdrawing it.  
4.2. It is clear that Article  19.1 of the DSU gra nts panels the discretion to make such a suggestion. 
In circumstances in which a DSB recommendation could be implemented in different ways, a 
panel's suggestion may be unwarranted. However, as noted, this is not the case in the present 
dispute. In situatio ns analogous to the present dispute, when panels found violations "to be of a 
fundamental nature and pervasive",168 and when, in their view, there was no other way for the 
respondent to properly implement the DSB recommendation without revoking the measure, other 
panels have exercised their discretion under Article  19.1 and made this suggestion.169 
4.3. In sum, the complainants submit that the gravity and extent of the inconsistencies of 
Indonesia's measure with WTO law warrant this Panel to suggest that the on ly way Indonesia can 
bring its measure into conformity with its WTO obligations is, simply, to withdraw it.170 
 
 
                                                
168 See Panel Report, Guatemala  – Cement II , para. 9.6. 
169 See Panel Report, Guatemala  – Cement II , para. 9.6. See also Panel Report, Argentina – Poultry 
Anti-Dumping Duties, para. 8.7; Panel Report, Panel Report, Mexico – Steel Pipes and Tubes , para. 8.12; and 
Ukraine  – Passenger Cars , paras. 8.7 -8.8. 
170 Complainants' opening statement at the second meeting of the Pane l with the parties, 
paras.  10.1-10.3. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  ANNEX B -2 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUM ENTS OF INDONESIA  
I. INTRODUCTION  
 
1. This dispute raises the important issue as to how a WTO  developing country Member could 
effectively utilize the Emergency Action on Imports of Particular Products or commonly known as 
"Safeguard Measure". All WTO Members recognize the needs to have an emergency instrument to 
temporarily limit imports in order to remedy serious injury or threat thereof of the domestic 
industry and to facilitate adjustment regardless whether the imports are traded fairly or not. The 
safeguard instrument should also be practicable especially for WTO developing country Members 
which would have their own limitations. There must be a balance between the strict and high 
standards to apply for a safeguard measure on one hand, and the ability of WTO Members 
especially the developing ones to comply with these high standards on the other.  The safeguard 
measure is not a safety valve that is put inside a safety vault that no one could have the key or 
combination to open it without trigerring the alarm.  
2. Steel industry is a very strategic industry in every country including Indonesia. Theref ore, 
when these industries are seriously injured or threatened to be seriously injured because of surge 
of imports as a WTO Member Indonesia has the right to impose a safeguard measure. Indonesia 
understands that the standards to impose a safeguard measure  are very high and exacting. Thus, 
the Indonesia Safeguard Committee (hereinafter referred to as "KPPI") has conducted a very 
thorough long investigation prior to making any recommendation to impose the safeguard 
measure on Subject Good to ensure impartial  and objective investigations taking into account the 
due process rights of all parties including the petitioners, exporters, government of exporting 
countries, importers and the users industries.  
3. As one of the emerging market economies of the world wit h the fourth biggest population in 
the world, as well as its increasing purchasing power , Indonesia is facing the impact of 
globalization and is consequently becoming one of the most targeted export destinations in the 
Southeast Asia region. Indonesia's do mestic market particularly for the Subject Good is not only 
attractive to local producers, but also foreign producers. Therefore, the quantity of imports has 
increased by more than three times in 2012 compared to 2008, in line with the increasing market 
share of the imported products. This situation justifies the initiation of investigation as well as the 
imposition of a temporary emergency safeguard measure.  
II. LEGAL ISSUES AND CLAIMS  
A. Burden of Proof  
4. Indonesia submits that the complainants have fail ed to make its prima facie  case of some of 
their claims concerning: (1) increased imports; (2) threat of serious injury; and (3) causal link. 
The complainants cited multiple alleged inconsistencies of the Government of Indonesia with the 
provisions either from the GATT 1994 or the Agreement on Safeguards. Those articles contain 
multiple distinct obligations and each has their own burden of proof that the complainants have to 
establish. By only mentioning those multiple articles in the introduction part, in legal standard 
section and in the conclusion of the respective part of the complainants' first written submission, 
Indonesia submits that the complainants have failed to meet their burden of proof to establish a 
prima facie  evidence as to why the challenge d measures violate those multiple provisions and 
therefore such claims must be rejected by the Panel.  
5. Indonesia would like to recall that complaining WTO Members engaging in the WTO dispute 
settlement proceeding must meet the certain applicable high sta ndards. These high standards are 
reflected in the stringent requirements for a panel request, which must connect the challenged 
measures with the provisions of the covered agreements claimed to be infringed, so that the 
respondent is aware of the basis for  the claims.1 The Appellate Body has noted that the 
                                                
1 Appellate Body Report, US – Gambling , para. 141.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  requirement to make a prima facie  case – made in the course of submission to the panel – 
demands the same high standards.2 The evidence and arguments underlying a prima facie  case 
must therefore be suffic ient to identify the challenged measure and identify the relevant WTO 
provision and obligations contained therein, and explain the basis for the claimed inconsistency of 
the measure with that provision.3 The complainants clearly have not met this condition  by merely 
citing multiple provisions either from the GATT 1994 or the Agreement on Safeguards.  
6. Indonesia submits that an explanation about the legal standards of certain provisions in the 
GATT 1994 or Agreement on Safeguards without any explanation or connection to the challenged 
measure for sure does not fulfill a prima facie  case. If the complainants' proposition is accepted by 
the Panel, this could have a significant impact for the future WTO dispute settlement proceeding, 
where the complainant could  simply submit legal standards of the WTO provision without making 
any connection to the measure, and the respondent would still be obligated to counter and the 
Panel must also assess such claims.  
7. Indonesia strongly disagrees with the complainants that the facts and legal arguments 
underlying claims under Article XIX:1 of the GATT 1994, Articles 2.1, 3.1, 4.2(a) and 4.2(c) of the 
Agreement on Safeguards are the same.4 We note that those articles contain multiple distinct 
obligations and each has its own burden of proof for the complainants to meet.  
8. Indonesia also disagrees with the complainants' proposition that any violation of the other 
relevant provisions of the Agreement on Safeguards will automatically result in an inconsistency 
with Article XIX: 1 of the GATT 1994 and Article 2.1 of the Agreement on Safeguards. This 
proposition would have tremendous impact on the future WTO dispute settlement concerning 
safeguard measures because all complaints will include inconsistency with Article XIX:1 of the 
GATT 1994 and Article 2.1 of the Agreement on Safeguards in any of their claims under the 
Agreement on Safeguards. We believe this would also undermine the existence of substantive 
requirements under those two articles that must be demonstrated by the comp lainants.  
9. Indonesia notes that the Panel's decision in the Ukraine – Passenger Cars  to exercise judicial 
economy clearly demonstrates that obligations under Article 2.1 on the one hand and Article 3.1 
(last sentence) and 4.2(c) on the other hand are di fferent. Otherwise, the panel in the Ukraine – 
Passenger Cars  would make a decision similar to the complainants' proposition, whereby a 
violation of Article 2.1 of the Agreement on Safeguard would automatically entail a breach of 
Articles 3.1 and 4.2(c) of  the Agreement on Safeguards.  
B. Unforeseen Development  
1. KPPI has provided the logical connection between the unforeseen 
development and increased imports  
10. The complainants argued that KPPI failed to provide evidence or a reasoned or adequate 
explanat ion supporting the alleged "unforeseen developments", and how these developments led 
to the increase in imports.5 They referred to the Appellate Body 's finding in US – Steel Safeguards , 
which stated that a Member imposing a safeguard measure should adduce an explanation or data 
supporting the existence of the unforeseen development.6 The complainants also argued that KPPI 
failed to provide a link between the 2008 global financial crisis, which was global and 
macroeconomic in nature, and the effects on the s pecific products at issue.7 
11. In response to this, Indonesia emphasized on the panel 's finding in US – Steel Safeguards , 
that the length and quantity of the explanation are not the factors that need to be considered, but 
rather, it is the nature of the f acts, complexity, timing of the explanation, its extent, and its quality 
                                                
2 Ibid. 
3 Ibid. 
4 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's response to Panel Question No. 14.  
5 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.19.  
6 Ibid. 
7 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.29.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
- B-27 - 
 
  are the relevant factors.8 Indonesia argued that KPPI has properly explained the logical 
connection, specifically in paragraph 52 -53 of KPPI 's final disclosure report.9 Further, contr ary to 
the complainants ' explanation, Indonesia argued that KPPI has provided an explanation as to why 
the unforeseen event could result in increased imports of the specific product at issue. They 
argued that aside from Indonesia 's purchasing power that re mained high, there was a shift in 
preference from the use of wood material to light steel, which ultimately resulted the increase in 
demand of galvalume.10 Therefore, Indonesia has explained the connection of why the unforeseen 
event could result in the inc reased imports of galvalum.  
12. However, the complainants in their rebuttal submission argued that the factual assertions 
made by KPPI were multiple, implied complex economic reasoning, and required much more 
explanation.11 For instance, they argued on what  basis did KPPI assert that in a global economic 
crisis, Indonesia was the exception to the overall downturn.12 The complainants also noted that the 
Final Disclosure Report does not contain any explanation of why the developments cited were 
unforeseen.13 They stated that the explanation was required as a matter of fact and had to be 
contained in KPPI 's Final Disclosure Report.14 
13. In response, Indonesia in its rebuttal submission argued that the complainants have 
understood that the unforeseen development is  the 2008 financial crisis.15 Indonesia provided a 
series of evidence, which are reflected throughout the complainants ' submission, demonstrating 
that the complainants have in fact understood which event is the unforeseen development.16 
Indonesia also argued  that the 2008 global financial crisis could not have been foreseen by 
Indonesia when it undertook its WTO commitments on 1 January 1995.17 They referred to the 
Panel 's finding in US – Steel Safeguards , where the panel although found no explanation on how 
the Asian crisis constitutes unforeseen development in the USITC 's Final Report, they stated that 
"we can assume that, as the crisis began in 1997, it could not h ave been foreseen by the 
United  States negotiators in 1994, when the Uruguay Round ended".18 In this respect, Japan as 
third party argued that the Panel made this finding after it read the US ' second supplementary 
report, which discussed about the unforeseen development.19 However, Indonesia was of the view 
that this is incorrect. It is clear that the  panel made a finding based solely on the Final Report 
which does not discuss anything relating to unforeseen development, yet the panel made an 
assumption that the event in that case could not have been foreseen since it happened 3 years 
after the US ' concession.20 Therefore, Indonesia stated that the 2008 global financial crisis is an 
unforeseen event at the time Indonesia undertook its WTO commitments on 1 January 1995.21 
14. With respect to the logical connection, Indonesia referred to the Panel 's finding  in US – Steel 
Safeguards , which stated that there are situations where the explanation "may be as simple as 
bringing two sets of facts together".22 Further, Indonesia reiterated the explanation provided by 
KPPI in its Final Report, demonstrating that it ha s shown the logical connection between the 
unforeseen development and increased imports.23 
                                                
8 Indonesia's first writte n submission, para. 53.  
9 Ibid. para. 55.  
10 Indonesia's first written submission, para. 55.  
11 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's rebuttal submission, para. 2.9.  
12 Ibid. para. 2.9.  
13 Ibid. para. 2.18.  
14 Ibid. 
15 Indonesia's rebuttal submission, para. 25.  
16 Indonesia's rebuttal submission, paras. 26 -35. 
17 Ibid. para. 36.  
18 Ibid. para. 36.  
19 Japan's first written submission, para. 16.  
20 Panel Report, US – Steel Safeguards, paras. 10.79 -80. 
21 Indonesia's rebuttal submission, para. 36.  
22 Panel Report, US – Steel Safeguards , para. 10.115.  
23 Indonesia's rebuttal submission, para. 38.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  2. Whether KPPI 's conclusion is erroneous  
15. The complainants argued that KPPI 's conclusion, i.e. the surge in imports is the unforeseen 
development itself is errone ous.24 They referred to the panel 's finding in Argentina – Preserved 
Peaches25 which stated that the existence of "unforeseen developments" and increased imports 
must be demonstrated individually and independently of each other.26 Therefore, they concluded 
that KPPI 's conclusion in paragraph 54 of its Final Disclosure Report that the increase in imports 
was the unforeseen development that caused the increase in imports itself is erroneous.27 
16. In response to this, Indonesia argued that the panel should not be  fixated only on the 
conclusion, but to assess the whole context of the case.28 Indonesia referred to several cases, such 
as Argentina – Preserved Peaches  and Chile – Price Band System  in arguing that it is the practice 
of the panel to look at the explanati on and evidence provided by the competent authorities, rather 
than focusing on the conclusion itself.29 
3. KPPI has provided the relevant GATT obligation  
17. With respect to the demonstration of GATT obligation, the complainants firstly argued that 
the impo rting Member is required to show, as a matter of fact, that it has undertaken relevant 
GATT obligations or that it made concessions.30 In response to this, Indonesia stated that it has 
demonstrated the relevant GATT obligation, as shown in Table 3 of the KP PI's Final Disclosure 
Report.31 
18. During the second substantive meeting, the Panel asked several questions to both parties, 
so as to clarify the parties ' understanding of the relevant GATT obligation. For instance, the panel 
asked whether the term "obliga tion" on the first and last part of Article XIX:1(a) of the GATT 1994 
have to be the same. In this respect, the complainants are of the view that these obligations refer 
to the same GATT obligation, in line with the panel 's finding in Dominican Republic – Safeguard 
Measure .32 However, Indonesia is of the view that these obligations although might refer to the 
same GATT obligation, but it can also be different, particularly when the relevant obligation is 
MFN.33  
19. Indonesia responded to the complainants ' answer with respect to their reference to the 
Panel in Dominican Republic – Safeguard Measure , by arguing that if the GATT obligation involved 
is other than tariff concessions, for instance, MFN, and the terms "obligation" in the first and last 
part of Artic le XIX:1(a) have to be the same, then no investigating authority could ever 
demonstrate how the exclusion of some negligible imports from developing country Members could 
ever result in the increased imports.34  
20. Further, Indonesia referred to the Appell ate Body 's finding in Argentina – Footwear , where it 
stated that to fulfill this requirement, a mere demonstration of the relevant GATT obligation would 
be sufficient.35 At the present case Indonesia does not have any concession or commitment in its 
schedul e for the Product Concerned because it is stated "unbound". In this circumstances 
Indonesia is of the view that the identification of the applied MFN rate as well as all other tariffs 
under regional or free trade agreement under Article XXIV of the GATT 19 94 would fulfil the 
requirement "of the effect of the obligations incurred by a Member under this Agreement, including 
                                                
24 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's fi rst written submission, para. 5.31.  
25 Panel Report, Argentina – Preserved Peaches , para. 7.24.  
26 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.33.  
27 Ibid. para.  5.33. 
28 Indonesia's first written submission, para. 64.  
29 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 64.  
30 Ibid. para. 5.28.  
31 Indonesia 's response to Panel Q uestion No. 6.  
32 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's response to Panel Question No. 47.  
33 Indonesia's response to Panel Question No. 47.  
34 Ibid. para. 4.  
35 Ibid. para. 11.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
- B-29 - 
 
  tariff concessions…". Otherwise it would be legally impossible to impose a safeguard measure on a 
product that has no tariff concession o r commitment because the Member cannot fulfil the 
requirement "of the effect of the obligations incurred by a Member under this Agreement, including 
tariff concessions…" as provided in Article XIX:1 (a) of the GATT 1994. It would be impossible to 
substanti ate the effect of having no tariff concession under the GATT which have led to the 
increased imports.36 
C. Increased Imports  
21. The complainants argued that the abnormal time gap between the end of POI and the date 
of determination of threat of serious inj ury, which is 15 months, renders the increased imports not 
recent enough.37 As reflected in their response to Panel question, the circumstances that might 
affect how recent a data should be, include the availability of data, the manner in which imports 
behave and fluctuate during the POI, market conditions within the importing Member, and external 
macroeconomic factors that might be relevant to the case.38 Following their statement, they 
argued that based on the circumstances of the case39 and the average time  gap of past safeguards 
cases,40 a time gap of 9 months would be more reasonable. Indonesia simply noted that instead of 
referring to an established case such as Ukraine – Passenger Cars , the basis they used for this 
argument, i.e. a mere average time gap o f past cases, is unreasonable.  
22. Further, Indonesia submitted that the complainants ' argument has no basis. This is for two 
reasons. First, in light of the recent jurisprudence, i.e. Ukraine – Passenger Cars , the Panel 
established that a time gap of 16 m onths between the end of POI and the date of determination of 
injury is considered recent enough,41 insofar the complainants failed to prove that the investigation 
"should have taken less time than it did".42 In this case, Indonesia argues the time gap betwe en 
the end of POI and the date of determination is 15 months, and the complainants have not 
submitted any evidence or arguments which would indicate that the investigation should have 
taken less time than it did. Further, Indonesia refers to the Panel 's decision in Argentina – 
Footwear , where it clearly established that an investigating authority has no obligation to 
"continuously update the data in its investigation. Such a requirement would be unnecessarily 
burdensome and difficult to administer".43 Indone sia is also of the view an investigating authority 
does not have any obligation to continuously update the import and/or injury data whenever such 
data is available.44 This basis, in Indonesia 's view, renders the complainants ' argument completely 
invalid.  
23. Indonesia also has submitted that that the 2013 annual import data was only published by 
Indonesia Statistic Bureau (BPS) on 4 August 2014 (5 months after the issuance of KPPI Final 
Disclosure Report)45 and BPS does not officially publish half -yearly imp ort statistic by country. It is 
the common practice of KPPI to refer to only to official annual import data published by BPS in 
order to correspond with the audited injury data to establish a causal link between them.46 
24. Additionally, Indonesia submits t he complainants ' suggestion to take into account the data 
of the first half of 2013 is also contradictory. This is because by taking into account new data, KPPI 
would have to update not only its increased imports analysis, but also other relevant 
requireme nts, such as causal link, serious injury, etc. KPPI would also need to verify the collected 
data, which in itself requires time. Therefore, the implementation of the complainants ' suggestion 
would undoubtedly result in a longer, if not the same, time requi red to complete the investigation.  
                                                
36 Ibid. para . 12. 
37 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's rebuttal submission, para. 2.30.  
38 Ibid. para. 2.36.  
39 Ibid. para. 2.37.  
40 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Mats u and the Socialist Republic  of 
Viet Nam's opening statement during the first meeting, para. 3.3; see also , Exhibit TPKM -VNM-12. 
41 Panel Report, Ukraine – Passenger Cars , para. 7.177.  
42 Ibid. para. 7.176.  
43 Panel Report, Argentina – Footwear , para. 8.213 . 
44 Indonesia's response to Panel Question, No. 57.  
45 Indonesia's opening statement at the first meeting, para. 38 and see Exhibit IDN -43. 
46 Indonesia's response to Panel Question, Nos. 57 -58. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  D. Serious Injury  
1. Whether the complainants ' interpretation of the terms "increase in 
imports … in relative terms" under Article 4.2(a) is correct  
25. In this respect, the complainants argue several issues, first, the c omplainants argue that 
KPPI failed to evaluate all relevant serious injury factors under Article 4.2(a) of the Agreement on 
Safeguards, in particular the rate and amount of increased imports in relative terms to domestic 
production.47 Indonesia responded to  this allegation by stating that the assessment of "relative 
terms" does not necessarily have to be compared with domestic production, but rather, the 
comparison with domestic consumption is also sufficient,48 which KPPI has fulfilled. In response to 
this, the complainants put forward their interpretation of Article 4.2(a), which requires an 
investigating authority to make an assessment in relation to domestic production. They provided 
the definition of relative, which to be defined as "[c]onsidered in relat ion or in proportion to 
something else".49 Second, they noted that the benchmark element is not defined in Article 4.2(a), 
but they argued that this benchmark could not be the domestic consumption, considering that 
such assessment would be redundant with th e analysis on increased import.50 
26. In response to the complainants ' argument, Indonesia put forward several reasons as to 
why the complainants ' interpretation is incorrect. First, there is a deliberate distinction of the 
drafter to differentiate between the two. Article 2.1 explicitly refers the relative term to domestic 
production while Article 4.2(a) does not. Second, Article 2.1 uses the  conjunction "or" while 
Article  4.2(a) uses the conjunction "and". Third, Article 2.1 focuses about the relative term  that 
refers to the increased imports while Article 4.2(a) is more focused on the determination of serious 
injury. Lastly, the panel 's analysis in US – Lamb  also affirms that the assessment of rate and 
amount of imports relative to domestic consumption (ma rket share) fulfills one of the factors set 
out in Article 4.2.51 
27. Indonesia further noted the admission of the complainants that the "relative" benchmark is 
not defined in Article 4.2(a) of the Agreement on Safeguards.52 However, Indonesia disagrees with  
the complainants ' assertion that a comparison with domestic consumption would be redundant as 
it would be the same as the assessment on the share of domestic market taken by increased 
imports.53 Indonesia supported this contention by providing an example t hat the two assessments 
are different.54  
2. Whether or not KPPI has evaluated the situation of the domestic 
industry in respect of the production destined for the captive market of 
Bluescope  
28. The complainants have argued that KPPI failed to conduct a se rious injury determination 
with respect to all segments of the domestic industry. Alternatively, they also argued that KPPI 
failed to provide a reasoned and adequate explanation of how, despite the absence of an analysis 
of the captive market, there was st ill an overall impairment of the domestic industry.55 Particularly, 
the complainants noted that Bluescope produced both bare and painted galvalume. Accordingly, 
Bluescope 's production of painted galvalume must have required bare galvalume, and therefore 
                                                
47 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Ma tsu and the Socialist Republic  of 
Viet Nam's rebuttal submission, para. 2.50.  
48 Indonesia's first written submission, paras. 125 -131. 
49 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's rebuttal sub mission, para. 2.53.  
50 Ibid. para. 2.54.  
51 Indonesia's response to Panel question No. 26; Indonesia 's rebuttal submission, para. 67.  
52 Indonesia's rebuttal submission, para. 68.  
53 Ibid. para. 68.  
54 Ibid. para. 69.  
55 The Separate Customs Territory of Taiwan , Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's rebuttal submission, para. 2.60; The Separate Customs Territory of Taiwan, Penghu, Kinmen and 
Matsu and the Socialist Republic  of Viet Nam's response to Panel Question No.  17. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
- B-31 - 
 
  two segments of production of bare galvalume were relevant, (i) production for the merchant 
market and (ii) production for the captive market.56 
29. In response to this, Indonesia argued that KPPI had investigated and evaluated all data and 
information related  to the petitioners as well as actual condition of the domestic industry.57 As a 
matter of fact, KPPI had addressed this concern in paragraph 26(b) of its Final Disclosure Report. 
Although the investigation also revealed that Bluescope produces both bare an d painted galvalum, 
however, it also revealed that the products produced by Bluescope is not used for its own 
consumption. Indonesia also responded this in its responses to Panel question.58 Indonesia would 
like to recall panel 's decision in Argentina – Footwear , in which the Panel clearly established that 
their assessment does not involve questioning the facts as determined by the national authority.59 
The Panel 's obligation is to make an objective assessment pursuant to Article 11 of DSU.60 
3. Whether or not  KPPI has provided reasoned and adequate explanation 
concerning its threat of serious injury determination  
30. The complainants argued that KPPI failed to explain its finding of threat of serious injury 
despite indications of positive performance of the do mestic industry.61 They argued that KPPI 's 
assessment regarding the decrease in market share was conducted on the basis of comparing the 
end points of the POI.62 They referred to the Appellate Body which stated that "the competent 
authorities are required to  consider the trends in imports over the POI (rather than just comparing 
the end points) under Article 4.2(a)".63 
31. In response to this, Indonesia argued that it has considered trends in imports over the 
whole POI, instead of resorting to an end -to-end co mparison. This has been provided in 
Indonesia 's response to the panel 's question, by also providing the method of calculation that KPPI 
used in order to determine the trends in imports using exponential regression function  to make 
average of a trend throug hout certain period of time rather than just a comparison on end -to-end 
point.64 
32. Further, Indonesia emphasized the finding of the Appellate Body in Argentina – Footwear , 
which stated that not all factors evaluated by the investigating authority is requi red to show a 
declining trend.65 Further, Indonesia provided a summary of KPPI 's assessment to determine 
threat of serious injury to the domestic industry:66 
a. the petitioners cannot utilize the increase of domestic consumption because the share was 
taken b y the increased imports;  
b. the domestic sales had only increased by 29 per cent, therefore it was not in line with the 
greater domestic consumption increase of 34 per cent during the POI;  
c. although the petitioners' production increased by 32 per cent du ring the POI, such increase 
still would not be sufficient to fulfil domestic consumption. Moreover, even with such 
increase, the petitioners' capacity utilization was still far below their installed capacity;  
d. in an effort to increase their capacity util ization and productivity, the petitioners tried to set 
production target and increased their labour. However, such effort still failed to reach the 
expected capacity utilization and productivity. Even in 2012, one of the petitioners was 
forced to lay off 1 0 per cent of its labour because of the declining company performance;  
                                                
56 The Separa te Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's rebuttal submission, para. 2.61.  
57 Indonesia 's rebuttal submission, para. 82.  
58 Indonesia 's response to Panel Question, no.  24. 
59 Panel Report, Argentina – Footwear , para. 7.12.  
60 Panel Report, US – Wheat Gluten , para. 8.6.  
61 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.77.  
62 Ibid. para. 5.82.  
63 Appellate Body Repor t, Argentina – Footwear (EC) , para. 129.  
64 Indonesia 's response to Panel Question No. 23.  
65 Appellate Body Report, Argentina – Footwear (EC) , para. 139.  
66 Indonesia 's first written submission, para. 136.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
- B-32 - 
 
  e. the petitioners' inventory increased significantly by 75 per cent during the POI due to the 
increasing share of imports as reflected in Table 7 above;  
f. the petitioners suffered los s in 2008, 2009 and 2012 because they were forced to sell below 
their production cost in order to be able to compete with imports;  
g. KPPI also found that during 2009 –2012 import prices were always below petitioners' prices. 
This condition caused both pric e undercutting and price depression to the petitioners;  
h. KPPI had also assessed other factors which might be causing threat serious injury to the 
domestic industry, i.e. increased capacity, competition with other domestic producers and 
quality of the pro ducts produced by petitioners. Based on KPPI's investigation, it found that 
such other factors did not contribute to the threat of serious injury to the domestic industry.  
33. Indonesia also argued that with respect to the petitioners ' positive performance , e.g. sales, 
production and capacity, it was merely the petitioners' effort to be able to compete with imports, 
which was clearly unsuccessful when during the same period, particularly during t he most recent 
period in 2010 –2011 when the petitioners ' profit declined from 301 index point to 115 index point 
and ultimately suffered loss to -30 index point in 2012; while their inventory significantly increased 
from 118 index point in 2010 to 356 index point in 2011 and 460 index point in 2012.67 
E. Causal Link  
1. Whether KPPI failed to establish the causal link between increased 
imports of the subject product and serious injury  
34. The complainants argued in their first written submission that KPPI relied largely on the 
coincidence of the alleged increased import s and the alleged injurious indicators.68 They further 
referred to the Panel 's finding in US – Steel Safeguards , which stated that there may be situations 
where a coincidence in time "may not suffice to prove causation or where the facts may not 
support a c lear finding of coincidence and that, therefore, such situations may call for further 
demonstration of the existence of a causal link".69 However, the complainants did not elaborate on 
this specific issue and instead referred to the explanation in the conte xt of non -attribution 
analysis.70 
35. In this respect, Indonesia emphasized that Article 4.2(b) contains two distinct obligations, 
each with burden of proof that has to be met.71 Indonesia provided the finding of the Appellate 
Body in US – Line Pipe , where i t explained the difference between the two obligations.72 Indonesia 
argued that considering that the complainants did not elaborate on how Indonesia violates the first 
sentence of Article 4.2(b), and made an explicit reference to the analysis on non -attribu tion issue, 
the complainants have failed to meet their burden of proof.73 
36. In the complainants ' rebuttal submission, they denied Indonesia 's argument and argued that 
there was actually no coincidence between the alleged decline in the petitioners ' market  share and 
the increase in imports.74 They stated that the petitioners ' market share experienced a steady 
increase from 2010 to 2012, and imports also increased, showing an upward trend during the 
same period.75 They further concluded that both the petitione rs' market share and imports 
experienced an upward trend.76 
                                                
67 Indonesia 's rebuttal submission, para. 74.  
68 The S eparate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.106.  
69 Panel Report, US – Steel Safeguards , para. 10.305.  
70 The Separate Customs Territory of Taiwan, Penghu, Kinmen an d Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.107.  
71 Indonesia 's first written submission, para. 159.  
72 Appellate Body Report, US – Line Pipe , para. 208.  
73 Indonesia 's first written submission, para. 161.  
74 The Separate  Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's rebuttal submission, para. 2.86.  
75 Ibid. 
76 Ibid. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  37. In response to this, Indonesia noted the complainants ' inconsistency in arguing that KPPI 
was inconsistent with the first sentence of Article 4.2(b) of the Agreement on Safeguards. 
Indonesia ar gued that in the complainants ' first written submission, they acknowledged that there 
is a coincidence of the increased imports and the injurious indicators and argued only that the 
coincidence is flawed due to some other factors.77 However, in their respon se to Panel question, 
the complainants stated that no coincidence occur.78 Indonesia stated that the argument is 
misleading and the complainants failed to establish prima facie  case. In any event, Indonesia also 
explained that it there was a causal link bet ween the increased imports and the downward trend of 
the petitioner 's market share.79 Indonesia referred to its response to the panel 's question in 
providing the method on how to prove that the coincidence did occur.80 
2. Whether KPPI has assessed other rele vant factors with respect to 
Article 4.2(b) of the Agreement on Safeguards  
38. In this instance, although the Final Disclosure Report contained a discussion of other factors 
such as increased national consumption, domestic competition, and the domestic pro duct's ability 
to compete with imports,81 the complainants argued that KPPI did not examine the question of 
whether the increase in losses may be explained by increased costs, including increased labor 
costs, incurred in installing and using this additional  capacity.82 
39. With respect to the decline in profits as a result of increase in installed capacity of the 
petitioners, Indonesia argued that KPPI in its Final Disclosure Report has evaluated such factor and 
found that the increase in the petitioners ' installed capacity is in line with the increase of national 
consumption and therefore it was not a factor causing injury to the petitioner.83 It further stated 
that the increase in consumption has indirectly encouraged the domestic industry to increase their 
production capacity in order to fulfill the demand. However, despite such effort, the domestic 
market share continued to decrease by 4 per cent while the market shares of imports increased by 
6 per cent. Indonesia argued that this shows the increase in inst alled capacity is not the factor 
causing injury to the petitioners.84 
40. With regard to the complainants ' question of the domestic product 's ability to compete with 
imports, Indonesia argued that KPPI has also evaluated this factor. In fact, KPPI explained  in its 
Final Disclosure Report that the domestic products conform to the applicable standardization, 
which includes Indonesia National Standard (SNI) and International Organization for 
Standardization (ISO).85 
41. Indonesia also noted that the assessment o f other factors that might cause injury to the 
petitioners is not unlimited in nature.86 They referred to the finding of the Appellate Body in US – 
Wheat Gluten , where the Appellate Body rejected the EC's argument that the competent 
authorities "have an ope n-ended and unlimited duty to investigate all available facts that might 
possibly be relevant".87 
F. Parallelism  
42. Indonesia submits that the current principle of parallelism does not include the scope of 
products and therefore Indonesia 's safeguard measu re is consistent with the current established 
principle of parallelism.88 In addition, Indonesia also argues that Indonesia's decision to impose 
                                                
77 Indonesia 's rebuttal submission, para. 90.  
78 Ibid. para. 91.  
79 Indonesia 's opening statement during second me eting, para. 54.  
80 Ibid. 
81 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.110.  
82 Ibid. para. 5.112.  
83 Indonesia 's first written submission, para. 167.  
84 Ibid. 
85 KPPI's Final Disclosure Report, para. 57, see Exhibit IDN -8. 
86 Indonesia 's first written submission, para. 168.  
87 Appellate Body Report, US – Wheat Gluten, para. 56.  
88 Indonesia 's rebuttal submission, paras. 102 -106. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  the safeguard measure on narrower scope of products is in line with Article 5.1 of the Agreement 
on Safeguards.89 
1. Whether the doctrine of parallelism stipulated in Article 2.2 of the 
Agreement on Safeguards apply to the present case  
43. Indonesia submits that Indonesia's practice in the present case is allowed under WTO 
provisions and under Indonesian regulation. Amendments of proposed measures, including the 
alteration of the form of measure from quota to duties, reduction of the safeguard rates or quota, 
or reduction of duration of the safeguard measure based on political decisions are common in the 
application o f safeguard measures.90 Previous case laws which were used as examples include 
Ukraine – Passenger Cars  and US – Steel Safeguards .91 
44. Moreover, pursuant to GR 34/2011 concerning Anti -Dumping Measure, Countervailing 
Measure and Safeguard Measure, the Minis ter will take into account the National Interest 
Consideration from the relevant Ministries before making any decision to impose the safeguard 
measure based on the recommendation from KPPI. Therefore, political decisions to determine the 
form, rate, durati on of the safeguard measure as well as to narrow down the scope of products 
imposed by the safeguard measure shall not be deemed to violate  Articles 2.1, 3.1, 4.2(a), 
and 4.2(b) of the Agreement on Safeguards provided that it does not broaden the scope of product 
and that it does not discriminate based on origin.  
2. Whether the application of the safeguard measure resulted in a 
discrimination based on origin  
45. Assuming arguendo that the doctrine of parallelism as regulated in Article 2 of the 
Agreement on Safeguards does apply to the present case, Indonesia argues that it does not 
discriminate the application of the safeguard measure based on origin.92 
46. The principle of parallelism is neither in the text of the Agreement on Safeguards nor in 
Article XI X of the GATT 1994 and was first established by the panel in Argentina – Footwear  
case.93 Subsequently, this unwritten principle was also raised in US – Wheat Gluten94, US – Line 
Pipe95, US – Steel Safeguards96 and Dominican Republic – Safeguard Measures .97 The principle was 
created based on the "parallel language used in the first and second paragraph of Article 2 of the 
Agreement on Safeguards.98 The existing case law relating to the principle of parallelism 
exclusively relates to the exemption of FTA partners from the scope of the MFN application of the 
safeguard measure.  
47. According to the Appellate Body in US – Wheat Gluten, the parallel language in Article 2.1 
and 2.2 of the Agreement on Safeguards, which the complainants had referred to as the origin of 
the doctrine, would be given a different meaning if a Member, after including imports from all 
sources in the determination of serious injury, then excludes imports from one source from the 
application of the measure.99 
48. Indonesia would like to emphasize  that there is no discrimination based on origin for 
imported products excluded from the application of the safeguard measure. The complainants also 
have never challenged or put forward any evidence that such exclusion resulted in de facto 
discrimination b ased on origin.100 Therefore, even if the doctrine of parallelism as regulated in 
Article 2 of the Agreement on Safeguard does apply to the present case, Indonesia has complied 
                                                
89 Ibid. paras. 108 -113. 
90 Indonesia 's first written submission, para. 183.  
91 Ibid. para. 183.  
92 Indonesia 's first written submission, para. 186.  
93 Panel Report, Argentina – Footwear (EC) , paras. 8.81 -8.87. 
94 Panel Report, US – Wheat Gluten , para. 8.156.  
95 Panel Report, US – Line Pipe , para. 4.2 5. 
96 Panel Report , US – Steel Safeguards , para. 3.1.  
97 Panel Report , Dominican Republic – Safeguard Measures , para. 7.64.  
98 Appellate Body Report, US – Steel Safeguards , para 439.  
99 Indonesia 's first written submission, para. 189, referring to Appellate Bo dy Report, US – Wheat 
Gluten , para. 96.  
100 Ibid. para. 190.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  with its obligations as it has not discriminated the application of the safeguard  measure based on 
origin, except those exempted under Article 9 of the Agreement on Safeguards.101 
49. However, the complainants are now requesting the Panel to broaden this unwritten principle 
in two ways. First, from only covering the exclusion or discrimi nation based on origin now the 
complainants argued the principle of parallelism also covers the scope of products.102 Second, that 
the parallel language of Articles 2.1 and 2.2 of the Agreement on Safeguards should now be 
expanded to include the parallel lan guage of Articles 2.1, 4.2(a) and 4.2(b) of the Agreement on 
Safeguards as well as Article XIX of the GATT 1994.103 The complainants argued that the 
requirement of parallelism permeates the text of the whole Agreement on Safeguards, and can be 
derived from t he use of similar notions in Articles 2.1 and 4.2, as well as Article XIX:1(a) of the 
GATT 1994.104  
50. Indonesia submitted that the complainants had requested the Panel to go beyond the text of 
the Agreement on Safeguards and even beyond the well -establish ed case law by requesting the 
expansion of the principle of parallelism. The expansion does not include only that of the principle 
itself, but also the expansion of parallel provisions of Article 2.1 of the Agreement on Safeguards 
which is now to include A rticle XIX of the GATT that was not even mentioned in the complainants' 
request for the establishment of the panel.105  
51. Indonesia would like to recall that Article 3.2 of the DSU states that "recommendations and 
rulings of the DSB cannot add to or dimini sh the rights and obligations provided in the covered 
agreements". Indonesia agrees with the United States that the application and enforcement of 
abstract principles not set out in the WTO Agreement would be fundamentally at odds with the 
customary rules of interpretation of public international law.106 
52. The Panel needs to be extremely cautious in addressing this claim as to not add or diminish 
the rights and obligations of Members provided in the Agreement on Safeguards. Indonesia is of 
the view, that if  the Panel were to agree with the complainants' proposition, the Panel will open a 
"Pandora's Box" where the principle of parallelism could be further broadened in the future, 
especially in light of similar languages or terms used in Article 2.1 of the Agr eement on Safeguards 
found throughout the Agreement on Safeguards, as was also acknowledged by the 
complainants.107  
3. The Mexico – Steel Pipes and Tubes  anti-dumping case is not applicable 
to the present case  
53. The complainants have referred to Mexico – Steel Pipes and Tubes, an anti -dumping dispute, 
in which the panel stressed the importance of the obligation to ensure identity between the scope 
of the investigated product and the scope of the product to which the measure applies.108 
Indonesia submits that  the Mexico – Steel Pipes and Tubes case is irrelevant to the present case 
as it is an anti -dumping case and the doctrine of parallelism claimed by the complainants is based 
on Article 2 of the Agreement on Safeguards and not the Anti -Dumping Agreement.109 
54. Moreover, the facts considered in the referred case are vastly different from the set of facts 
being considered in the present case.110 In that case, the issue was the investigating authority 
                                                
101 Ibid. para. 190.  
102 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.119.  
103 The Separate Customs Territ ory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's opening statement at the first meeting, para. 6.8; The Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu and the Socialist Republic  of Viet Nam's respons e to Pane l Question Nos. 36 
and 41. 
104 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's response to Panel Question No. 36.  
105 Ibid. 
106 United States' third -party response to Panel Question No. 40, para. 13.  
107 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's response to Panel Question No. 36.  
108 Indonesia 's first written submission, para. 193.  
109 Ibid. 
110 Ibid. para. 194.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  during the investigation added additional products in the scope  of investigation which was to 
include tubing of 4" -6" and certain structural tubing.111 However, in this case, the complainants 
have recognized that the difference in implementation is because Indonesia had narrowed down 
the scope of the product at issue fr om steel with a "thickness not exceed 1.2 mm" to that with a 
"thickness not exceeding 0.7 mm."112 
4. Indonesia 's actions are in compliance with Article 5.1 of the Agreement 
on Safeguards  
55. In any event, Indonesia submits that its decision to impose the saf eguard measure on 
narrower scope of product is in line with Article 5.1 of the Agreement on Safeguards.113 Indonesia 
submits that a requirement for an application to meet the requirements of Articles 2.1 and 4.2 of 
the Agreement on Safeguards would effective ly render Article 5.1 of the Agreement on Safeguards 
inapplicable.114 
56. Indonesia submits that Article 5 of the Agreement on Safeguards regulates the imposition of 
the safeguard measure.115 Indonesia also referred to the Panel question which implied that by 
requiring that the conditions in Article 2.1 of the Agreement on Safeguards must be satisfied in 
relation to any product subject to a safeguard measure would preclude any Member to comply with 
Article 5.1 of the Agreement on Safeguards in applying a safeg uard measure that is less 
trade -restrictive.116 The narrowing down of the product scope has resulted in a less 
trade -restrictive measure. This decision was also not done in an arbitrary manner. Rather, it was 
based on the National Interest Consideration as pr ovided in Government Regulation No. 34/2011, 
which concluded that the threat of serious injury during the period of investigation was mostly 
caused by imports of bare galvalum with thickness not exceeding 0.7 mm. Members have the right 
to choose measure mo st suitable for the achievement of objectives in imposing the safeguard 
measure as provided in the last sentence of Article 5.1 of the Agreement on Safeguards. As the 
United States has pointed out the use of the phrase "suitable" to the achievement of the 
objectives, the sentence leaves to a Member's discretion what particular measure may or may not 
be "suitable" in particular circumstances.117 In this case, Indonesia has decided based on its 
national interest consideration that the most suitable safeguard me asure is only to impose the 
safeguard measure on the Product Concerned until 0.7 mm.  
57. Members have the right to choose the measure most suitable for the achievement of 
objectives in imposing the safeguard measure as provided in the last sentence of Arti cle 5.1 of the 
Agreement on Safeguards.118 Therefore, Indonesia submits that its safeguard measure is justified 
under Article 5.1 of the Agreement on Safeguards.119 
G. Most -Favored -Nation  
1. Whether Article 9.1 of the Agreement on Safeguards justifies 
inconsis tent measure to Article I:1 of the GATT 1994  
58. The complainants stated that the measure at issue imposed by Indonesia is inconsistent with 
Article I:1 of the GATT 1994. The complainants argued that first, the measure falls within the 
scope of Article I:1  of the GATT 1994,120 and that the products covered by the specific duty are 
"like" the products exempted from the application of the specific duty.121 Additionally, the 
exemption from the specific duty is not extended "immediately" and "unconditionally" to th e 
                                                
111 Indonesia's opening statement at the first meeting, para. 61.  
112 Ibid. para. 195.  
113 Indonesia 's rebuttal submission, para. 108.  
114 Ibid. para. 110.  
115 Indonesia 's rebuttal submission, para. 111.  
116 Indonesia 's rebuttal submission, para. 111; referring to Panel Question No. 41.  
117 Indonesia 's rebuttal submission, para. 11.  
118 Ibid. para. 113.  
119 Ibid. para. 114.  
120 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.142.  
121 Ibid. para. 5.144.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  subject products from all Members' territories.122 Therefore, clearly, the exemption from the 
specific duty is not extended immediately and unconditionally.123 
59. Indonesia submits that Article XIX:1 of the GATT 1994 has clearly provided an exemption to 
suspend obligations incurred by a contracting party under the GATT 1994 as an emergency action 
on imports of particular products in order to prevent or remedy serious injury caused by an 
unforeseen increase in imports.124 The word "obligations" in Article XIX:1  of the GATT 1994 refers 
to any obligation under the GATT 1994 including MFN obligation in Article I:1 of the GATT 1994.125 
Otherwise, Article 2.2 of the Agreement on Safeguards would be superfluous and would create a 
conflict between Article 9.1 of the Agre ement on Safeguards and the MFN principle provided for in 
Article I:1 of the GATT 1994.126 
60. The complainants then submitted that Indonesia's safeguard measure is not justified under 
Article 9.1 of the Agreement on Safeguards because it is not based on the  basic pre -requisite that 
imports must come from "developing countries".127 In this case, imports from six of the exempted 
Members, i.e. EU members Bulgaria, Croatia, Hungary, Lithuania, Poland, and Romania cannot 
qualify as imports coming from developing co untries .128 This means that Indonesia's exemption of 
these imports does not fulfill the requirements of Article 9.1 of the Agreem ent on Safeguards.129 
61. Indonesia argues that this exemption can be justified under Article 9.1 of the Agreement on 
Safeguards as  the exempted countries in MOF Regulation 137/2014 are all developing countries.130 
With regards to the countries the complainants have taken issue with, Indonesia notes that there 
is no universal threshold for the status of countries throughout the world, a nd as such the status 
has been self -determined.131 In any case, there have been multiple cases which have also included 
Croatia, Lithuania and/or Romania in its list of exempted developing countries in accordance to 
Article 9.1 of the Agreement on Safeguards .132 
62. Further, with regards to the import shares of the exempted countries, KPPI has found that 
the import shares of Viet Nam, Taiwan and Republic of Korea collectively constitute 96.26 per cent 
of the total import shares in 2012. The remaining 3.74 per c ent of import shares are comprised of 
imports from Japan, People's Republic of China and Singapore.133 As the totality of import shares 
consists of the aforementioned countries, it would be logical to infer that the 118 exempted 
countries have import shares during the POI are less than 3 per cent and their combination does 
not exceed 9 per cent, as required by Article 9.1 of the Agreement on Safeguards.134 For these 
reasons, Indonesia submitted that it has complied with its obligations under Article 9.1 of the 
Agreement on Safeguards.135 
2. Whether the complainants have failed to be consistent with regards to 
the basis of their claim during the course of this proceeding  
63. Lastly, Indonesia also argued that the complainants have been changing the basis of their 
claim during the course of this proceeding.136 
64. In its Request for the Establishment of a Panel, the complainants had claimed that the 
inconsistency is based on the fact that the specific duty imposed by Indonesia applies to products 
                                                
122 Ibid. para. 5.14 9. 
123 Ibid. 
124 Indonesia 's first written submission, para. 210.  
125 Ibid. 
126 Ibid. 
127 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's rebuttal submission, para. 2.132.  
128 Ibid. 
129 The Separate Customs Ter ritory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's rebuttal submission, para. 2.132.  
130 Indonesia 's first written submission, para. 214.  
131 Ibid. para. 215.  
132 Ibid. 
133 Ibid. para. 216. 
134 Ibid. 
135 Ibid. para. 219.  
136 Ibid. para. 115. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  originating only in ce rtain countries and this constitutes an advantage that has not been accorded 
immediately and unconditionally to the like products originating in all WTO Members.137 In their 
first written submission, the complainants were very clear that they are challenging  the whole list 
of 120 exempted Members excluded by PMK 137/2014 to be inconsistent with Article I:1 of the 
GATT 1994.138 
65. In its first written submission, the complainants had only mentioned three European Union 
members, namely Croatia, Lithuania and Rom ania.139 The number of countries contended by the 
complainants was again altered in the complainants' opening statement at the first meeting of the 
Panel, where they contended the exclusion of five European Union members, adding Bulgaria and 
Poland to its pr evious submission.140 In their response to the Panel question, the complainants 
again changed the number to a total of six countries, adding Hungary and Latvia and removing 
Lithuania from its original list of European Union member states in the first written  submission.141 
66. Now, the claim has totally changed from challenging the whole list of exempted countries 
that allegedly violates the MFN obligation to challenging the si x member states of the 
European  Union excluded from the application of the safeguard measure that is not in line with 
Article 9.1 of the Agreement on Safeguards.142 It is been challenging for Indonesia to make a 
defense on this moving target.143 
67. Indonesia has submitted the source of the exclusion list which is the IMF for list of 
"emerging  markets and developing countries" as the basis to determine the list of excluded 
countries. Those countries that are both listed in the IMF and are WTO members will be excluded 
under Article 9.1 of the Agreement on Safeguards.144 In the absence of any clear  list of developing 
countries from the WTO, Indonesia submits it has discretion to use any other reliable source it 
deems appropriate to determine the status of WTO developing country Members for the purpose to 
comply with Article 9.1 of the Agreement on S afeguards and Indonesia is not obliged to check 
every statement made by every country in the WTO to check whether or not they have claimed to 
be developing or developed country.  
68. The complainants also rely on the proposition that Members providing GSP schemes consider 
themselves as developed country. Thus, since EU provides GSP scheme, all 28 EU Members shall 
be considered as developed countries.145 Indonesia has rebutted this proposition by submitting 
evidence that in fact Croatia still received GSP sche me from Canada, Japan, New Zealand, Russia, 
and the United States according to UNCTAD list of beneficiaries of GSP as was also referred to by 
the complainants in Exhibit TPKM/VNM -23.146 The complainants also never refute the examples 
Indonesia has referred t o from other safeguard measure imposition notifications which have also 
included several European Union member states in its list of exempted developing countries 
according with Article 9.1 of the Agreement on Safeguards.147 
                                                
137 Indonesia 's rebuttal submission, para. 116; referring to Request for the Establishment of a Panel by 
Viet Nam and Request for the Establishment of a Panel by the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu, para. 1.7(a)(iv).  
138 Indonesia 's rebuttal submission, para. 117; referring to the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu and the Socialist Republic  of Viet Nam's first written submission, para.  5.133.  
139 Indonesia 's rebuttal, para. 119; referring to the Sep arate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu and the Socialist Republic  of Viet Nam's first written submission, para. 5.133 footnote 159.  
140 Indonesia 's rebuttal submission, para. 119; referring to the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu and the Socialist Republic  of Viet Nam's o pening statement at the first  meeting, 
para. 7.2.  
141 Indonesia 's rebuttal submission, para. 119; referring to the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu and the Sociali st Republic  of Viet Nam's response to Panel Q uestion  No. 42. 
142 Indonesia 's rebuttal submission, para. 120.  
143 Ibid. 
144 "Emerging market and developing economies ". International  Monetary Fund, Web. accessed 
5 November 2016, <http://www.imf.org/external/pubs/f t/weo/2014/01/weoda ta/weoselagr.aspx>, see 
Exhibit  IDN-45. 
145 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's rebuttal submission, para 2.134.  
146 "Generalized System of Preferences: List of Benefici aries". U NCTAD, Web. accessed 
5 November  2016, <http://unctad.org/en/PublicationsLibrary/itcdtsbmisc62rev6_en.pdf >, see Exhibit IDN -44. 
147 Indonesia's first written submission, para. 215.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  69. In conclusion, Indonesia reit erates that the complainants cannot claim an inconsistency with 
Article I:1 of the GATT without taking into account Indonesia 's obligations to the Agreement on 
Safeguards.148 Indonesia submits that the list of excluded country of the Safeguard Decree is 
consistent with Article 9.1 of the Agreement on Safeguards and therefore does not violat e 
Article  I:1 of the GATT 1994.149 
H. Notification  
70. The complainants argued that Indonesia 's notification is inconsistent with Article 12.2 of the 
Agreement on Safeguards because Indonesia failed address four mandatory components of 
notifications, which are precise description of the proposed measure, the proposed date of 
introduction of the measure, a timetable for progressive liberalization, and the rate and amount of 
the increase in imports of the product concerned in relative terms.150 In response to this, 
Indonesia argued that the four components alleged by the complainants to be non -existent has in 
fact provided by Indonesia in its notifications under Articles 12.1(b) an d 12.1(c) of the Agreement 
on Safeguards dated 27 May 2014 and 23 July 2014.  
71. With respect to the proposed date of introduction of the measure and the timetable for 
progressive liberalization, Indonesia argued that these components have been provided in  
Indonesia 's notification under Article 12.1(b) and/or Article 12.1(c) of the Agreement on 
Safeguards.151 Therein, it was stated that with reference to the proposal of the investigating 
authority, and taking into account the need to effectuate the safeguard measure as proposed and 
the relevant requirements stipulated in the Agreement on Safeguards, the Government of the 
Republic of Indonesia has decided to impose the safeguard duty.152 
72. As for the rate and amount of the increase in imports of the subject pro duct in relative 
terms, Indonesia has notified the WTO 's Committee on Safeguards through its Notification under 
Article 12.1(b) of the Agreement on Safeguards. Therein, particularl y in Table 2, Table 4 and 
Table  5, the rate and amount of the increase in im ports of the subject product relative to the 
national consumption has been provided.153 
73. In addition, Indonesia also argued that it has provided the percentage (relative terms) of 
country wise imports of the subject product relative to the total imports w ith its comparison 
between 2008 and 2012 provided in Table 3 of Indonesia 's notification under Article 12.1(b).154 
74. The complainants also argued that the lack of such pertinent components could not be 
rectified by addressing the relevant items in subseque nt notifications. They referred to the 
Appellate Body's statement in Korea – Dairy saying that Members must notify the relevant 
information prior to the imposition of the measure so as to enable other Members to pursue their 
interests in the appropriate fo ra.155 Further, they argued that Indonesia only notified these 
requirements six days after the measure had entered into force, and therefore other Members, 
including the complainants, were deprived of their right to protect their interests by seeking 
consult ations or by other means prior to the entry into force of Indonesia 's safeguard measure.156 
75. In response to this, Indonesia put forward two arguments. First, there is no limitation on the 
number of how many times a Member could submit a notification under  Articles 12.1(b) or 12.1(c) 
of the Agreement on Safeguards. Indonesia also provided twelve cases where Members submitted 
a supplemental notification under Articles 12.1(b) or 12.1(c).157 
                                                
148 Ibid. para. 127.  
149 Ibid. 
150 The Separate Customs Territory of Taiwa n, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.160  
151 Indonesia 's first written submission, para. 234.  
152 Ibid. 
153 Ibid. para. 236.  
154 Ibid. para. 237.  
155 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.165.  
156 Ibid. para. 5.166.  
157 Indonesia 's first written submission, para. 239.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  76. Second, on the timing of the notifications, Indonesia referred to the Appellate Body in US – 
Wheat Gluten158 which disagreed with and reversed the panel 's interpretation that Article 12.1(c) 
requires the notification to be made both "immediately" and before implementation of the 
safeguard measure.159 The Appellate Body decis ion in US – Wheat Gluten  that Article 12.1 of the 
Agreement on Safeguards deals with when  the notification must be made, and Article 12.2 of the 
Agreement on Safeguards clarifies what information must be included in the notification under 
Articles 12.1(b) and 12.1(c) of the Agreement on Safeguards.160 The content requirement of 
Article 12.2 of the Agreement on Safeguards, therefore, does not prescribe when  the notification 
under 12.1(c) must take place.161 While the two articles are explicitly related, a Member  may 
breach one provision and not the other.  
77. Indonesia noted that the complainants had only raised a claim under Article 12.2 of the 
Agreement on Safeguards, which only concerns the content of Indonesia's notification under 
Articles 12.1(b) and 12.1(c)  of the Agreement on Safeguards but not the timing.162 Indonesia also 
noted that the complainants acknowledged that Indonesia has notified three out of four mandatory 
components in its notification of 23 July 2014.163 However, Indonesia noted the complainants ' 
assertion that Article 12.2 has temporal connection with the notifica tion under Articles 12.1(b) 
and 12.1(c) is in contradiction with the Appellate Body 's clear ruling in US – Wheat Gluten .164 
Indonesia referred to the statement of the Appellate Body in US – Wheat Gluten that a Member 
could violate one Article without violating the others.165 
78. In conclusion, Indonesia reiterates that it has provided all pertinent information required 
under Article 12.2 of the Agreement on Safeguards in its Article 12.1(b) a nd 12.1(c) notifications 
on 27 May 2014 and 23 July 2014 . 
I. Consultation  
79. The complainants argued that Indonesia failed to provide a meaningful opportunity for prior 
consultations, as no consultations were held on the proposed measure before its applic ation.166 In 
the absence of prior consultations, Indonesia deprived the complainants of the opportunity to 
review the information provided under Article 12.2 of the Agreement on Safeguards, to exchange 
views on the measure, and to reach an understanding with  Indonesia on an equivalent level of 
concessions. Furthermore, as explained, the obligation under Article 12.3 to provide a meaningful 
opportunity for consultations before the measure take effect does not depend on whether a 
request for consultations was m ade by the affected Member.167 
80. Furthermore, the complainants also argued that regardless of whether consultations were 
held or not, Indonesia failed to provide sufficient information within the meaning of Article 12.2 of 
the Agreement on Safeguards to al low for the possibility, through consultations, for a meaningful 
exchange on the proposed measure.168 
81. In response to this, Indonesia stated that it has given multiple opportunities for 
consultations prior to the application of the safeguard measure and t he fact that no prior 
consultation was ever held was not because Indonesia has failed to provide an opportunity for 
prior consultation.169 Indonesia also provided the chronology which demonstrated that KPPI has 
provided numerous opportunities for the complai nants to have consultations, but it is the 
                                                
158 Appellate Body Report, US – Wheat Gluten , para. 125.  
159 Indonesia 's first written subm ission, para. 240.  
160 Appellate Body Report, US – Wheat Gluten , para. 123.  
161 Ibid. 
162 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's first written submission, para. 5.7.  
163 The Separate Customs Terr itory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's response to Panel Question No. 43(i).  
164 Indonesia 's rebuttal submission, para. 130.  
165 Ibid. 
166 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Soci alist Republic  of 
Viet Nam's first written submission, para. 5.185.  
167 Ibid. para. 5.187.  
168 Ibid. para. 5.189.  
169 Indonesia 's first written submission, para. 245.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  complainants that kept on avoiding such meeting.170 Indonesia also referred to the panel in Korea 
– Dairy which considered that consultations may be adequate even in circumstances where prior 
notifications of a find ing of serious injury or of any proposed measure are incomplete.171 In fact, 
one of the purposes of the consultations is to review the content of such notifications, and thereby 
augment it if necessary.172 
82. Indonesia also submits that the Panel should only assess Indo nesia's compliance with 
Article  12.2 of the Agreement on Safeguards regarding whether or not its notifications under 
Articles 12.1(b) and 12.1(c) of the Agreement on Safeguards dated 27 May 2014 and 23 July 2014 
had contained all pertinent infor mation required under Article 12.2 of the Agreement on 
Safeguards.173 The Panel should not assess the timing of such notifications as it falls under 
purview of Article 12.1 of the Agreement on Safeguards as it is not challenged by the 
complainants.174 Pursuant  to the Appellate Body decision in US – Wheat Gluten  the Panel shall not 
mix the requirements in Article 12.1, 12.2 and 12.3 of the Agreement on Safeguards when 
assessing the current claim concerning notification only under Article 12.2 of the Agreement on  
Safeguards.175 In Indonesia 's rebuttal submission, Indonesia highlighted the fact that the 
chronology they provided in their first written submission was never challenged by the 
complainants, and it shows that no consultation was ever held because Viet Nam repeatedly 
rescheduled the consultation due to its internal administrative reasons.176 As for the 
Separate  Customs Territory of Taiwan, Penghu, Kinmen and Matsu , all requests were made way 
before the date of determination of threat of serious injury or way a fter.  
83. Indonesia noted that nothing in the text of Article 12.3 nor has there been any WTO case 
law which supports the complainants' contention that the safeguard measure shall not be applied 
when the consultation has started and were still on -going.177 In fact, the wording of Article XIX:2 
of the GATT 1994 seems to suggest that action under paragraph 1 may be taken provisionally 
without prior consultation, on the condition that consultation shall be effected immediately after 
taking such action.178 It is o ur view that the obligation of an implementing Member is to provide 
adequate opportunity for prior consultation should not be contingent upon the other interested 
party 's schedule availability. This is because an exporting Member can unlimitedly delay the 
application of safeguard by trying to prolong, postpone or rescheduling the consultations, and the 
implementing Member has to wait for the consultation to actually occur, even if it means 
sacrificing its own domestic industries to suffer serious injury jus t for the sake of complying with 
Article 12.3 of the Agreement on Safeguards.  
84. In conclusion, Indonesia stated that it has provided an opportunity for consultations to the 
complainants and therefore acted in accordance with Article XIX :2 of the GATT 199 4 and 
Article  12.3 of the Agreement on Safeguards.179 
J. Suggestion for Implementation  
85. In their opening statement at the first meeting of the Panel, the complainants requested the 
Panel to exercise the discretion accorded to it by Article 19.1 of the DS U and to suggest that the 
only manner in which Indonesia could remove the various allegations of inconsistencies at issue is 
by immediately withdrawing the safeguard measure at issue.180 Indonesia strongly disagrees with 
this proposition.  
86. Indonesia ackno wledges that the Panel has the authority to suggest  ways in which a 
member could implement their recommendation, i.e. to bring the measure into conformity with its 
WTO obligation. However, as also noted by the panel in US – Line Pipe , although the panel ha s 
                                                
170 Ibid. paras. 251, 254.  
171 Panel Report, Korea – Dairy , para. 7.150.  
172 Ibid. para. 7.150.  
173 Indonesia 's opening statement at the second meeting, para. 81.  
174 Indonesia 's opening statement at the second meeting, para. 81.  
175 Appellate Body Report, US – Wheat Gluten , para. 124.  
176 Indonesia 's rebuttal submission, para. 138.  
177 Ibid. para. 139.  
178 Ibid. 
179 Ibid. para. 143.  
180 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and the Socialist Republic  of 
Viet Nam's opening statement at the first meeting, para. 9.3.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  "the authority under Article 19.1 of the DSU to make a specific suggestion does not mean that we 
must or should do so in a given case".181 
87. Indonesia submits that in order to comply with a Panel's recommendation, i.e. to bring its 
measure into conformit y with its WTO obligation, an implementing member is free to choose the 
means it takes to comply with its obligation. This has been firmly established in the case of US –
Offset Act (Byrd Amendment) , by emphasizing on the principle that "choosing the means of 
implementation is, and should be, the prerogative of the implementing Member".182 In practice out 
of the 56 cases that the complainants requested the panel to exercise its right under Article 19.1 
DSU, there are only 8 cases in which the panel specificall y suggested the implementing Member to 
revoke its measure.183 However, these cases are exceptional. On the contrary, there have been 
more than 48 cases in which the panel refused to suggest an implementing Member to revoke its 
measure.184 Therefore, the Panel needs to be very cautious in exercising this right similar to the 
previous cases and must provide a reasoned and adequate explanation on why the respondent 
cannot exercise its prerogative right to choose the means of implementation of the inconsistent 
meas ure. The Panel would also need to explain what fundamental obligations have been violated 
by Indonesia so that the only way to comply with the panel ruling is by withdrawing the safeguard 
measure.  
88. Contrary to the complainants who never submitted any ex planation as to why only way to 
comply with the panel ruling is by withdrawing the safeguard measure, Indonesia in its rebuttal 
submission has submitted on ways to comply with the panel rulings, assuming arguendo  
(quod non) that the Panel found inconsisten cies of Indonesia's safeguard measure.185 
89. Therefore, Indonesia submits that in the event that the Panel finds any inconsistency with 
Indonesia's WTO obligations, we would respectfully request the Panel to reject the complainants' 
request on for the Panel  to suggest that the only manner in which Indonesia could remove the 
various allegations of inconsistencies at issue is by immediately withdrawing the safeguard 
measure at issue. Rather, the Panel should confer Indonesia the discretion to choose the means in 
which Indonesia could implement the Panel's recommendation.  
III. CONCLUSION  
90. In light of the foregoing, Indonesia requests the Panel to find that KPPI has fulfilled all its 
obligations under GATT 1994 and the Agreement on Safeguards and therefore req uests the Panel 
to reject all claims made by the complainants.  
 
 
_______________  
 
 
                                                
181 Panel Report, US – Line Pipe , para. 8.6.  
182 Award of the Arbitrator, US – Offset Act (Byrd Amendment) , para. 52.  
183 See Exhibit IDN -48. 
184 Indonesia 's rebuttal submission, para. 151.  
185 Ibid. paras. 152 -155. WT/DS490/R/Add.1 • WT/DS496/ R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Australia  C-2 
Annex  C-2 Integrated executive summary of th e arguments of the European Union  C-4 
Annex  C-3 Integrated executive summary of the arguments of Japan  C-7 
Annex  C-4 Integrated executive summary of the arguments of Ukraine  C-10 
Annex  C-5 Integrated executive summary of the arguments of the United Stat es C-12 
 WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  ANNEX  C-1 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUM ENTS OF AUSTRALIA  
I. THE EXCEPTIONAL NATURE OF SAFEGUARD MEASURES  
 
1. Safeguard measures are both extraordinary and exceptional in nature.1 Care must be taken 
to ensure any safeguard measure full y complies with the stringent standards of Article XIX of the 
GATT and the Agreement on Safeguards.  
 
II. THE DOCTRINE OF PARALLELISM  
 
2. Existing WTO case law on the doctrine of parallelism2 has focused on the source of the 
product in question. In this cas e the complainants argue the doctrine should apply to its scope.3 In 
Australia's view, the key concern is the same, regardless of whether the doctrine is applied to 
product scope or source: that is, to ensure any safeguard measures applied are justified by  the 
findings of the preceding investigation.4  
 
3. The product scope has fundamental legal implications for the results of an investigation.5 
Any discrepancy in the scope of the product as investigated and the scope of the product subject 
to the safeguard  measure must be adequately explained by the investigating authority, including 
to demonstrate non -attribution of injury caused by products excluded at the application of 
measures phase.6 
 
4. Australia does not consider Article 5.1 of the Agreement on Safe guards to be a relevant legal 
basis for a decision not to apply safeguard measures to a sub -set of products, which themselves 
meet the requirements to apply safeguards. In Australia's view, Article 5.1 does not deal with 
whether to apply safeguard measures , but rather how Members must calibrate safeguard 
measures to ensure they are not applied beyond the extent necessary to prevent or remedy the 
serious injury found and to facilitate adjustment.7  
 
5. Nonetheless, Australia considers that it would be possib le for an investigating authority to 
choose not to apply safeguard measures to a subset of products, even where all relevant 
requirements have been met. There is nothing in the Agreement on Safeguards that requires an 
investigating authority to impose a sa feguard measure. However, this does not nullify the 
investigating authority's obligation to ensure that any safeguard measures it does apply are 
justified by the results of the preceding investigation.  
 
III. THREAT OF SERIOUS INJURY  
 
6. While Article 2.1 o f the Safeguards Agreement only requires a Member to make a finding of 
increased imports absolute or relative to domestic production in order to apply a safeguards 
measure, Article 4.2(a) requires that the Member first evaluate, inter alia , "the rate and a mount of 
the increase in imports of the product concerned in absolute and relative terms".  
                                                
1 See Appellate Body Reports, Argentina – Footwear (EC) , paras. 93 -94; US – Line Pipe , paras. 80 -81; 
Korea – Dairy , para. 86.  
2 Appellate Body Reports, US – Line Pipe ; US – Steel Safeguards ; US – Wheat Gluten ; Argentina – 
Footwear (EC) ; and Panel Report, Dominican Republic – Safeguard Measures . 
3 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu and Vietnam's First Written 
Submission, para. 5.115.  
4 Or as the Panel recalled in US – Steel Safeguards at para. 10.595, " the requirement of parallelism… is 
that the competent authorities must establish explicitly that imports covered by the safeguard measure satisfy 
the con ditions for its application".  
5 For example, the like or directly competitive products at issue; the relevant domestic industry; 
whether imports have increased; whether the domestic industry has suffered serious injury or threat thereof; 
whether the import s at issue have caused the serious injury or threat thereof; and whether the unforeseen 
developments can be shown to have caused such injury.  
6 See Appellate Body Report, US – Steel Safeguards , paras. 450 -452, 472.  
7 Article 5.1 thus disciplines, for examp le, the quantum of safeguard duties or the level of quantitative 
restrictions applied to ensure they do not exceed what is necessary.  WT/DS490/R/Add.1 • WT/DS496/ R/Add.1  
 
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  7. Australia agrees with the complainants that it would render inutile the requirement in 
Article  4.2(a) to examine the "share of the domestic market taken by increa sed imports" if the 
Article 4.2(a) requirement to examine increased imports in "relative terms" could be satisfied by 
simply examining imports relative to domestic consumption. Article 4.2(a) is "unambiguous that at 
a minimum each of the factors listed, in  addition to all other factors that are 'relevant', must be 
considered."8 
 
8. Article 4.2(a) mandates what an investigating authority must evaluate  in its safeguards 
investigation, while Article 2.1 deals with the necessary threshold to apply  safeguard mea sures 
once a determination has been made.  
 
IV. NOTIFICATIONS  
 
9. In Australia's view, any deficiencies in the timing of notifications should properly be dealt 
with under Article 12.1 of the Agreement on Safeguards, not Article 12.2.  
 
10. The Appellate Body  in US – Wheat Gluten established that, whereas Article 12.1 deals with 
when notifications must be made, Article 12.2 clarifies what information must be included in 
notifications under Article 12.1(b) and 12.1(c).9 While the two articles are explicitly rel ated,10 a 
Member may breach one provision and not the other.  
 
 
 
                                                
8 Panel Report, Argentina – Footwear (EC) , para. 8.206. See also Panel Reports, Korea – Dairy , 
para. 7.55; US – Wheat Glut en, para. 8.39.  
9 Appellate Body Report, US – Wheat Gluten , para. 123.  
10 Article 12.2 refers to Articles 12.1(b) and 12.1(c).  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  ANNEX C -2 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUM ENTS OF THE EUROPEAN  UNION  
1. The European Union intervenes in this case (concerning a safeguard measure by Indonesia 
on imports of certain f lat-rolled products of iron or non -alloy steel) because of its systemic interest 
in the correct and consistent interpretation and application of the covered agreements and other 
relevant documents, and the multilateral nature of the rights and obligations contained therein, in 
particular the Agreement on Safeguards and the General Agreement on Tariffs and Trade (the 
GATT 1994). This executive summary integrates comments made by the European Union in the 
Third Party Hearing on 6 October and in its reply to t he writt en questions by the Panel of 
20 October 2016.  
2. Regarding the co -complainants claim that Indonesia did not provide a reasoned and 
adequate explanation on how unforeseen developments  resulted in the increase in imports that 
allegedly caused serious  injury, the European Union considers that the global financial crisis in 
2008 to which Indonesia referred qualifies as an unforeseen development. However, investigating 
authorities must not only show the existence of unforeseen developments; they must als o 
establish a logical connection between the unforeseen developments and the increased imports of 
the specific product  on which the safeguard measure is imposed. This is particularly important 
where the alleged unforeseen developments are macroeconomic eve nts having effects across a 
number of industries.  
3. On the question of how recent the data  used by the investigating authority must be, the 
European Union referred in its written submission to a number of cases where the Appellate Body 
and previous panel s have dealt with the question. The European Union pointed out that the 
investigation period must be "the recent past", but that there can be no strict numerical rule which 
would apply in each and every case. The question whether the data used is recent en ough should 
be decided on a case -by-case basis, taking into account the actual availability of data (normally, 
import statistics are available within three to four months; this time span might be longer where 
aggregated data is used) and allowing for a rea sonable delay for processing the data and drawing 
conclusions. The acceptable length of this delay will vary in each case, depending, inter alia , on 
the complexity of the case, the nature of the industry concerned and the technical capacity of the 
country imposing the measures, particularly in the case of developing countries. Where 
investigations take longer, the investigating authorities should consider updating the data in the 
course of the investigation, to the extent feasible. The European Union also h ighlighted the 
possibility for the defendant to justify longer time lapses if it encounters practical difficulties in 
using more recent data or in updating information. Such justification can be provided ex post , 
during the panel proceedings.  
4. With respe ct to the threat of serious injury , while Article 4.2(a) is not as explicit as 
Article  2.1 with regard to the evaluation of the increased imports relative to domestic production, 
the European Union considers that Article 2.1 provides for helpful context in  understanding the 
obligation in Article 4.2(a). Accordingly, taking into account the contextual reference to domestic 
production in Article 2.1, as well as the fact that another factor in Article 4.2(a) is linked to 
domestic consumption (the share of the domestic market taken by increased imports), the 
European Union considers that an interpretation giving meaning to each of the treaty terms 
supports the proposition that the reference to the increase in impor ts in relative terms in 
Article  4.2(a) is to be understood as relative to domestic production. The increase in imports of the 
product concerned in relative terms is a relevant factor and it is informed by the overarching 
requirement in Article 4.2(a) (all factors to be evaluated must be relevant , in the  sense of 
"heaving a bearing on the situation of that industry").  
5. The European Union also recalls that the analysis of all relevant factors under Article 4.2(a) 
is a distinct step from the establishment of a causal link between the increased imports of  the 
product concerned and serious injury or thereat thereof, even if the two aspects of the evaluation 
are related.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  6. With respect to the causal link , the European Union agrees that it is up to the 
complainants to meet their burden of proof with regard t o the alleged violations. While 
interconnected, different provisions in the Agreement on Safeguards contain multiple obligations 
and a violation of a certain provision does not necessarily result in a violation of other provisions.  
7. The concept of parall elism  as developed in the existing case -law is not applicable to the 
present case, but a similar concept may be relevant in the present proceedings. While in previous 
cases the application of the safeguard measure was narrowed down by excluding certain tra de 
partners, in the present case the application of the safeguard measure is also narrowed down, but 
with respect to the product scope.  
8. The European Union considers that a panel would need to ascertain whether there is a gap 
between the product scope of  a safeguard investigation  and the product scope of the application  of 
safeguard measures and whether there is an explicit explanation that the imports of the product(s) 
covered by the measure threaten to cause serious injury to the domestic industry.  
9. The European Union is mindful of the differences between the Anti -Dumping Agreement and 
the Agreement on Safeguards. The case -law under one agreement can not be automatically 
transposed to the other agreement, due to the complexities and particularities of each agreement. 
Furthermore, in Mexico – Steel Pipes and Tubes  there was a widening of the product scope, as 
opposed to the present case, where the product scope is narrowed down.  
10. On its own terms Article 2.1 of the Agreement on safeguards speaks of th e application of a 
measure to "a product", which is later on referred as "such product …being imported" in such 
quantities and under such conditions as to cause or threaten to cause serious injury to the 
domestic industry. The second reference can be under stood as a reference to the investigation.  
11. Article 2.1 may be contextually informed by Article 5.1 of the Agreement on Safeguards. 
Article 5.1 refers to the application  of safeguard measures "only to the extent necessary" to 
prevent or remedy serious i njury. The European Union disagrees with Indonesia, which seems to 
suggest that the narrowing down of the product scope is a political decision (subject to the 
National Interest Consideration) which may not benefit from a panel's scrutiny in WTO 
proceeding s. 
12. The European Union can imagine an example where the product under investigation is 
composed of two models: model A and model B. In a scenario where an investigating authority 
collects cumulative data with regard to models A and B without differentia ting between the 
two models with respect to serious injury and causation, and subsequently receives a request from 
the domestic industry concerning the narrowing down of the application of the safeguard measure, 
from models A and B to only model A, that in vestigating authority will need to re -do the 
investigation in such a way so as to collect relevant data with respect to that particular model. To 
the contrary, in a scenario where an investigating authority collects data and conducts the 
investigation with  respect to model A, model B, and models A and B cumulatively, separating in 
each case the serious injury and causal link, respectively, that investigating authority may be able, 
under Article 5.1, to lawfully apply a safeguard measure with respect to, say , only model A, 
without breaching its obligations under Article 4.2.  
13. On the co -complainants' claims under Article I:1 of the GATT 1994 , the European Union 
takes the point of view that an exclusion pursuant to and compliant with Article 9.1 of the 
Safeg uards Agreement can not constitute a violation of the most -favoured nation principle under 
the GATT 1994. Article 9.1 does not only allow the exclusion of certain developing countries; it 
even mandates it. In that sense, it is a justified deviation from MF N in the safeguard context. 
Article XIX of the GATT 1994 empowers contracting parties to suspend GATT obligations, including 
Article I:1, if its conditions (as clarified and reinforced by the Safeguards Agreement) are fulfilled. 
In that sense, Article I:1 and Article XIX of the GATT 1994, and the provisions of the Safeguards 
Agreement are an inseparable package of rights and disciplines.  
14. According to the General interpretative note to Annex 1A, the ultimately relevant standard 
for safeguard measures is  the one set by the Safeguards Agreement. The latter prevails in case of 
conflict, but should also more generally inform the way in which Article I:1 of the GATT 1994 is 
applied to safeguard measures. Article I:1 should be interpreted harmoniously with the  relevant WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
- C-6 - 
 
  provisions of the Safeguards Agreement. A particularity of the MFN standard for safeguards, as it 
is clear in both Article 2.2 and Article 9.1 of the Safeguards Agreement, is that it only applies 
between supplying countries. As the Appellate Body  has pointed out in US – Line Pipe , Article 9.1 
(in the same way as Article 2.2) is a provision on the application  of measures. Thus, the 
European  Union considers that the obligation to exempt developing countries with de minimis  
imports only applies if an d when they are actually exporters of the product concerned to the 
country taking the measure, and not in a purely abstract, "preventive" manner. Therefore, in the 
European Union's view, the exclusion of six of its Member States, none of which currently ex ports, 
or has in the last 10 years exported the product at stake to Indonesia, is not an issue that is 
directly connected to the particular fact pattern at issue in this case – that is, the real world trade 
dispute that the Panel is called upon to adjudica te. 
15. With regard to the notification requirement  under Article 12 of the Agreement on 
Safeguards, the European Union acknowledges that in US – Wheat Gluten  the Appellate Body 
found - for a safeguard measure in the form of a quota - that neit her Article 12.1(c) nor 
Article  12.2 of the Agreement on Safeguards, considered in isolation, required that the relevant 
information must be disclosed in notifications made prior to the entry into force of the measure. 
However, equally on the basis of the Appellate Bo dy Report in US – Wheat Gluten , as well as other 
cases, the European Union considers that when all of the relevant obligations  (in particular 
Article  12.3 of the Agreement on Safeguards and Article XIX:2 of the GATT 1994) are considered, 
the importing Memb er must submit all mandatory information prior to the entry into force of the 
measure.  
 
 WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
- C-7 - 
 
  ANNEX C -3 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUM ENTS OF JAPAN  
1 INTRODUCTION  
1. The Government of Japan intervenes in this dispute because of its systemic interest  in 
ensuring the objective and consistent interpretation of the Agree ment on Safeguards and the 
GATT  1994.  
2 THE REQUIREMENT OF I MPORTS HAVING INCREA SED AS A RESULT OF T HE 
UNFORESEEN DEVELOPME NTS AND THE EFFECT O F THE OBLIGATIONS IN CURRED UNDER 
THE GATT 19 94 
2. The two elements of the first clause of Article XIX:1(a) of the GATT 1994, namely the 
"unforeseen developments" and the "effect of the GATT obligations", constitute circumstances that 
must be demonstrated as a matter of fact, distinct from the condit ions established under the 
second clause.  
3. With regard to the "unforeseen developments", Japan first notes that they refer to events or 
developments that were "unexpected".  
4. Second, with respect to the point in time where given developments were unfore seen, any 
factual demonstration of "unforeseen developments" by the authorities must relate to 
developments that were "unexpected" at the time the Member incurred the relevant GATT 
obligation. The fact that a development occurred after the obligation has b een incurred does not 
mean per se  that such development was unforeseen or unexpected at that time. It is therefore 
necessary that in their published report the authorities assess and explain why the development 
which they have identified was unforeseen at the time the relevant obligation was negotiated. In 
the absence of such explanation, the panel is not in a position to conclude that the relevant 
requirement for applying a safeguard measure has been fulfilled. In the present case, it does not 
appear to be  any discussion in the Final Disclosure Report as to why the 2008 financial crisis 
should be regarded as "unforeseen".  
5. Third, as regards the type of facts or events that may constitute "unforeseen 
developments", Japan considers that these are events tha t modify the competitive relationship 
between imported and domestic products to the detriment of the latter. This understanding is 
supported by the text of Article XIX:1(a), its broader context as well as the case law including the 
Working Party Report in "Hatters ' Fur" case.  
6. Fourth, Japan emphasises that the authorities must provide a "reasoned and adequate 
explanation" of how the facts support their determination of "unforeseen developments". Such 
"reasoned and adequate explanation" must be explicit i n the sense that it must be clear and 
unambiguous and does not merely imply or suggest an explanation. Japan notes that the term 
"unforeseen development" is only used once in Section C.5 of the Final Disclosure Report in 
relation to increase in imports. Th is does not amount to a determination of "unforeseen 
developments" within the meaning of Article XIX:1(a) of the GATT 1994 as an increase in imports 
and the unforeseen developments must necessarily be two distinct elements.  
7. Furthermore, Article XIX:1(a)  of the GATT 1994 requires a demonstration of a "logical 
connection" between the unforeseen developments and the increase  in imports causing (or 
threatening to cause) serious injury. Importantly, what must be demonstrated is a logical 
connection not simply  between the unforeseen developments and any type of increase in imports 
but between the unforeseen developments and the increase in imports which causes or threatens 
serious injury. In Japan 's view, this is indicated in the text. Indeed, the term "unfores een 
developments" in the text of Article XIX:1(a) is grammatically linked not only to "such increased 
quantities" but also to "under such conditions as to cause or threaten serious injury".  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
- C-8 - 
 
  8. When examining the se terms, it is important to emphasise that a n increase in imports is not 
equivalent to serious injury or threat thereof nor does the former necessarily result in the latter. 
Serious injury of domestic producers or threat thereof is caused when domestic products are 
replaced by imported products or w hen the domestic products ' prices are affected by imported 
products. These market phenomena together with the increase in imports arise only when there is 
a change in the competitive relationship between the imported and domestic products to the 
detriment of the latter . 
9. Therefore, the "logical connection" will be demonstrated when the unforeseen developments 
have modified the competitive relationship between the imported and domestic products to the 
detriment of the latter , leading to an increase in impo rts causing, or threatening to cause, serious 
injury to the domestic industry.  
10. While some events clearly change the competitive relationship between the imported and 
domestic products to the detriment of the latter thereby resulting in the increased im ports and 
serious injury of domestic producers in a relevant market , other do not. In the latter scenario , the 
authorities carry a particular burden to explain the logical relationship between the unforeseen 
developments at hand and the increased imports c ausing or threatening serious injury.  
11. Japan considers that Indonesia did not show a "logical connection" between the unforeseen 
developments and the increase in imports because it failed to explain the change in the conditions 
of competition between th e domestic and imported products resulting in the increase in imports 
causing or threatening serious injury.  
12. With regard to the effect of the GATT 1994 obligations, Japan underlines that, in order to 
satisfy this requirement, a Member must establish th at the increase in imports occurred "as a 
result" of the effect of GATT 1994 obligations. More specifically, it must be explained how these 
GATT obligations had the effect of preventing that Member from taking WTO -consistent measures, 
such as an increase i n import duties  within the bound tariff rate and on an MFN basis, in order to 
prevent or remedy the change generated by the "unforeseen developments" in the competitive 
relationship between the domestic and imported products. Indeed, if the change generate d by 
such unforeseen developments could be offset by a tariff increase, no tariff concession would need 
to be withdrawn to remedy the situation and thus safeguard measure would not be warranted.  
3 THE CONDITIONS FOR T HE APPLICATION OF SA FEGUARD MEASURES  
3.1 The proper scope of the "domestic industry" in Article 4.1(c)  
13. Pursuant to Article 2.1 of the Agreement on Safeguards, safeguard measures may be 
applied only if the product is being imported […] as to cause or threaten to cause serious injury to 
the domestic industry.  Article 4.1(c), in turn, defines domestic industry as either "the producers as 
a whole" or "those whose collective output […] constitutes a major proportion", without providing 
any specific numerical threshold. In addressing the link betw een the phrase "major proportion" 
and the question of data coverage, the panel in US – Lamb  made clear that a national authority is 
under an obligation to collect sufficiently representative information so as to ensure the 
representativeness of the data us ed for its final determination.  
14. In the present case, Indonesia only evaluated serious injury factors of two domestic 
companies (mentioned as "petitioners") who only produced 77% of the total domestic production. 
While Japan does not take position as t o whether the data examined by Indonesia are sufficiently 
representative, Japan would like to draw the Panel 's attention to this issue because it may distort 
the overall analysis of threat of serious injury and causation.  
3.2 The causation analysis  
15. Article 2.1 of the Agreement on Safeguards provides that the product must be imported in 
such increased quantities and "under such conditions" as to cause or threaten to cause serious 
injury to the domestic industry. The phrase "under such condition s" indica tes the need to "analyse 
the conditions of competition  between the imported product and the domestic like or directly WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  competitive products in the importing country 's market ".1 In other words, "for a safeguard 
measure to be permitted, the investigation must  demonstrate th at conditions of comp etition in the 
importing countr y's market are such that the increased  imports can and do cause or threaten to 
cause serious injury ".2 Thus, i n Japan 's view, in the causation analysis, it is essential to examine 
the compe titive relationship between the imported and domestic products in the domestic market 
of the importing country , including how the alleged increased imports substituted domestic 
products.  
16. Japan notes that in the Final Disclosure Report, there is no ana lysis of the conditions of 
competition on the domestic market explaining how the increased imports caused or threatened to 
cause serious injury to the domestic industry. Thereby, Indonesia ha s failed to fulfill the 
requirement provided for in Articles 2.1 and 4.2(b) of the Agreement on Safeguards . 
4 THE REQUIREMENT OF " PARALLELISM" BETWEEN  THE PRODUCT SUBJECT TO 
INVESTIGATION AND TH E PRODUCT TO WHICH T HE SAFEGUARD MEASURE  IS APPLIED  
17. The principle of parallelism is derived from a parallel language of Articles 2.1 and 2.2 of the 
Agreement  on Safeguards  which requires that the imports included in the determinations made 
under Articles 2.1 and 4.2 should correspond to the imports included in the application of the 
measure, under Article 2.2. While the existi ng case law has exclusively addressed the principle of 
"parallelism" as a geographical issue, Japan submits that the need for coherence and consistency 
which underlies the principle of parallelism should be applicable to all situations in which the scope 
of a safeguard measure excludes imports which were included in the scope of the investigation.  
18. The identification of the investigated product has many legal implications for the conduct 
and outcome of the safeguard investigation. As a result, if the pro duct scope on which the findings 
of the investigation are based does not correspond to the product scope of the safeguard measure 
that is applied, the whole investigation would be rendered unreliable.  
19. Further, Japan is of the view that the requirements  of Article 2.1 and Article 5.1 of the 
Agreement on Safeguards must be applied cumulatively and thus, while an investigating authority 
may rely upon Article 5.1 to justify the application of a safeguard measure to a narrower group of 
products than those su bject to the underlying investigation, it must at the same time ensure that 
such narrower group of products – on its own – satisfies the conditions for the application of a 
safeguard measure set out in Article 2.1 of the Agreement on Safeguards.  
20. Japan  considers that there could be situations in which the product covered at the initiation 
of an investigation or during the course of the investigation  is not exactly the same as the product 
to which the safeguard measure applies given that the scope of the  product is modified after the 
investigation has been initiated. What matters is that the product with respect to which the 
assessment pursuant to Article s 2.1 and 4.2 of the Agreement on Safeguards is made and the 
product subject to the safeguard measure are the same.  
5 REQUIREMENT THAT THE RELEVANT INFORMA TION MUST BE DISCLOS ED IN 
NOTIFICATIONS MADE P RIOR TO THE ENTRY IN TO FORCE OF THE RELE VANT 
SAFEGUARD MEASURE  
21. A notification made after the entry into force of the measure would not, by definition, be  a 
notification made by a Member proposing to apply a safeguard measure because the measure is 
already in force. Therefore, the notification made under Article 12.1(c) of the Agreement on 
Safeguard would not comply with the requirements under Article 12.2 of the Agreement on 
Safeguards  when it is made after the entry into force of the measure .  
6 CONCLUSION  
22. Japan would like to thank the Panel for considering its views and hopes that its comments 
will be useful for the Panel 's analysis.  
 
                                                
1 Panel Report, Argentina – Footwear (EC) , para. 8.250.  
2 Ibid. WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  ANNEX C -4 
INTEG RATED EXECUTIVE SUMM ARY OF THE ARGUMENTS  OF UKRAINE  
I. BASIC REQUIREMENTS OF IMPOSITION OF SAFEGUARD MEASURES  
 
1. Ukraine observes the importance to consider the matter raised under the dispute in context 
of the synthesis of Article XIX of the GATT 1994 an d the relevant provisions of the Agreement on 
Safeguards reaffirming this position with conclusions of the Appellate Body1 stating that "any 
safeguard measure imposed after the entry into force of the WTO Agreement must comply with 
the provisions of both t he Agreement on Safeguards and Article XIX of the GATT 1994 " and that 
"Articles 1 and 11.1(a) of the Agreement on Safeguards express the full and continuing 
applicability of Article XIX of the GATT 1994, which no longer stands in isolation, but has been 
clarified and reinforced by the Agreement on Safeguards "2. 
2. While the Article XIX:1 of the GATT 1994 establishes general provisions regarding the 
imposition of an emergency action the Article 2.1 of the Agreement on Safeguards provides more 
specific requir ements in order to apply a safeguard measure.  
II. REQUIREMENTS TO PROVIDE ADEQUATE OPPORTUNITY TO HOLD CONSULTATIONS 
PRIOR TO THE IMPOSITION OF THE MEASURE  
3. Ukraine notices that for the purpose of the conformity of imposition of a safeguard measure 
with the provisions of WTO Agreements not only requirements set forth in the Article XIX:1 of the 
GATT 1994 and in the Article 2.1 of the Agreement on Safeguards must be complied but also the 
contracting party has to fulfil the requirements provided in Article XIX:2 and Article 12 thereof in 
order of a safeguard measure to correspond with the GATT 1994.  
4. The mentioned position concerning the necessity of compliance of a safeguard measure with 
the requirements set forth in Article 12 of the Agreement on Safegua rds regarding the notification 
and the requirements of providing adequate opportunity for prior consultations before imposing a 
safeguard measure is reiterated by the Appellate Body concluded its general point regarding the 
object and purpose of the notifi cation requirements and stated that it is better served if it includes 
all the elements of information specified in Articles 12.2 and 4.2 of the Agreement on Safeguards. 
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 of the Agreement on Safeguards, than they would otherwise be if the notification did 
not include all such elements.  
III. REQUIREMENTS OF DET ERMINING AND NOTIFYING ALL RELEVANT INFORMATION 
CONCERNING SERIOUS INJURY OR THREAT THEREOF  
5. According to the Article 4.1 (b) of the Agreement on Safeguards for the purposes of this 
agreement "threat of serious injury " shall be understood to mean serious  injury that is clearly 
imminent, in accordance with the provisions of paragraph 2 of the same Article. A determination of 
the existence of a threat of serious injury shall be based on facts and not merely on allegation, 
conjecture or remote possibility.  
6. Thereby Ukraine would like to accent on the importance of abidan ce of the provisions of 
Article  12.1 (b) of the Agreement on Safeguards, in particular with the aim to hold a meaningful 
prior consultations, stating that a Member shall immediately notify t he Committee on Safeguards 
upon making a finding of serious injury or threat thereof caused by increased imports.  
7. The requirements for the abovementioned notification are set forth in Article 12.2 of the 
Agreement on Safeguards which determines that a M ember proposing to apply or extend a 
safeguard measure shall provide the Committee on Safeguards with all pertinent information, 
                                                
1 Appellate Body Report, Argentina – Footwear (EC) , para.84.  
2 Appellate Body Report,  US – Lamb , para. 70.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  which shall include inter alia  evidence of serious injury 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.  
8. The object and purpose of the notification requirements  are mentioned in  Korea – Dairy3 by 
the Appellate Body concluded its general point that it is better served if the notification includes all 
the elements of information specified in Articles 12.2 and 4.2 of the Agreement on Safeguards. In 
this way, exporting Members with a substantial interest in the product s ubject to a safeguard 
measure will be in a better position to engage in meaningful consult ations, as envisaged by 
Article  12.3 of the Agreement on Safeguards, than they would otherwise be if the notification did 
not include all such elements.  
 
 
 
                                                
3 Appellate Body Report,  Korea – Dairy , para. 111.  WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  ANNEX C -5 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUM ENTS OF THE UNITED S TATES  
EXECUTIVE SUMMARY OF  U.S. THIRD PARTY ORA L STATEMENT  
I. INTRODUCTION  
1. The United States will address certain issues of systemic concern regarding the 
interpretation and application of Ar ticles 2.1, 4.2, 5.1, 9.1, 12.1, and 12.2 of the Agreement on 
Safeguards  ("Safeguards Agreement"), as well as Articles I:1 and XIX:1 of the General Agreement 
on Tariffs and Trade 1994  ("GATT 1994").  
 
II. THE SAFEGUARDS AGREEMENT AND ARTICLE I:1 OF GATT 19 94 
2. Considering that the WTO Agreement is a single undertaking, a breach of Article I cannot be 
established without taking into account other relevant articles. Here, a possible Article I claim 
cannot be examined without considering Article XIX of the GA TT 1994, as well as relevant 
provisions of the Safeguards Agreement.  
 
3. Article XIX recognizes that a Member may suspend certain obligations under the GATT 1994 
"to the extent necessary" to prevent injury. Whether this will result in the same treatment f or like 
products from all Members may depend on the facts of the particu lar case. In any event, 
Article  XIX does not state that Article I MFN obligations may not be suspended.  
 
4. Turning now to the Safeguards Agreement, its Preamble states that the Agree ment is 
intended "to clarify and reinforce the disciplines of GATT 1994, and sp ecifically those of its 
Article  XIX (Emergency Action on Imports of Particular Products)." Accordingly, if the Safeguards 
Agreement states that different treatment is to be prov ided for like products of different Members, 
this serves as a clarification – to the extent any ambiguity existed before – that Article I does not 
preclude such differential treatment.  
 
5. The Safeguards Agreement first states a general MFN principle: Art icle 2.2 provides that 
"[s]afeguard measures shall be applied to a product being imported irrespective of its source." 
Article 9.1 then provides a more specific rule for a particular situation. Under Article 9.1, 
differential treatment is not only allowed,  but it is required . Accordingly, when the conditions in 
Article 9.1 apply, the Safeguards Agreement clarifies that a Member following the obligation set 
out in Article 9 is acting in accordance with the GATT 1994, including Article I. On the other hand, 
if a Member provides differential treatment for products of different Members in a manner not 
provided for in Article 9, the Member may be acting inconsistently with its MFN obligations under 
Article 2.2 of the Safeguards Agreement, as well as under Article  I of the GATT 1994.  
 
6. As a final matter, the United States notes that it does not perceive any conflict between 
Article I of the GATT 1994 and the Safeguards Agreement. However, in the event of conflict, the 
Safeguards Agreement would prevail. The Gene ral Interpret ive Note to Annex 1A to the 
WTO Agreement makes clear that if there is a conflict between a provision of GATT 1994 and "a 
provision of another agreement in Annex 1A to the Agreement Establishing the Word Trade 
Organization" – which includes th e Safeguards Agreement – then the latter "shall prevail to the 
extent of the conflict."  
 
III. EXAMINATION OF CONTEMPORANEITY REQUIREMENTS FOR ESTABLISHING 
INCREASED IMPORTS UNDER ARTICLES 2.1 AND 4.2 OF THE SAFEGUARDS 
AGREEMENT AND ARTICLE XIX:1 OF GATT 19 94 
7. Whether or not increased imports data relied upon in support of a safeguard measure is 
sufficiently contemporaneous must be decided on a case by case basis, taking account of the facts 
of the particular situation and of the reasoning used by the auth ority. Articles XIX:1(a) of 
GATT 1994 and Articles 2.1 and 4.2 of the Safeguards Agreement require competent authorities to 
establish that an increase in imports has caused or threatened to cause serious injury to a WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
- C-13 - 
 
  domestic industry. The Safeguards Agreem ent does not, however, set out absolute standards for 
how recent, sudden, or significant an increase in imports must be in order to show that the 
increase caused or threatened to cause serious injury. This analysis is not a "mathematical or 
technical deter mination."  
 
8. Based on a review of the record of this dispute, it does not appear that the evidence 
Indonesia relied upon was sufficiently close in time to the imposition of the safeguard, considering 
it ended 17 months prior to when the period of invest igation closed. The record does not appear to 
include any explanation as to why more recent information was not sought or obtained. Nor does 
the record appear to explain how or whether this 17 -month gap in data affected Indonesia's 
analysis in concluding t hat the product in question "is being imported" under such conditions as to 
threaten to cause serious injury.  
 
9. Article 4.1(b) defines "threat of serious injury" to mean "serious injury that is clearly 
imminent ." Without such explanation, Indonesia prov ides no basis for evaluating whether the 
safeguard measure reasonably addressed the condition of the domestic industry at the time it was 
imposed, or whether the measure was even necessary to prevent serious injury.  
 
IV. OBSERVATIONS REGARDING FINANCIAL C RISES AND THEIR IMPACT ON THE 
ANALYSIS OF INCREASED IMPORTS UNDER ARTICLE XIX:1 OF GATT 1994  
10. The parties, as well as certain third parties, have presented arguments as to whether 
Indonesia sufficiently explained how the financial crisis was an "unfores een development," and 
how it led to increased imports in Indonesia. An examination of issues involving a financial crisis 
does not require the development of any special types of rules under the Safeguards Agreement. 
Rather, in justifying the imposition of  a safeguard measure based in whole or in part on a financial 
crisis, a competent authority needs to satisfy the requirements of Article XIX:1 of GATT 1994. This 
inquiry will, necessarily, depend on the unique facts and circumstances accompanying each 
particular financial crisis, whether big or small, and a Member's decision to impose a safeguard 
measure on that basis, whether in whole or in part.  
 
11. Accordingly, the United States would not agree with the contention that some sort of 
heightened standard would apply in examining issues involving the significance of a financial crisis.  
 
EXECUTIVE SUMMARY OF  RESPONSES OF THE UNI TED STATES OF AMERIC A TO THE 
PANEL'S QUESTIONS FO R THE THIRD PARTIES  
QUESTION I: THREAT OF SERIOUS INJURY  
1. Article 2.1's express s tatement that an authority may apply a safeguard only if a product is 
being imported in increased quantities in absolute terms or relative to domestic production 
necessarily informs the interpretation of Article 4.2(a)'s reference to increased imports in " relative 
terms." Article 2.1 is clear that one of the possible preconditions for the imposition of a safeguard 
is an increase in imports relative to domestic production .  
2. Article 4.2(a) discusses the factors to be considered by competent authorities in their 
investigation when evaluating whether "increased imports have caused or are threatening to cause 
serious injury to a domestic industry{,}" consistent with Article 2.1. Article 4.2(a) requires 
competent authorities to evaluate "all relevant factors of  an objective and quantifiable nature 
having a bearing on the situation of that industry." The Article then goes on to specify the factors 
to be considered – including the "rate and amount of the increase in imports of the product 
concerned in absolute and  relative terms ."  
3. Note that Article 4.2 connects "absolute" and "relative terms" with "and," as opposed to the 
"or" used in Article 2.1. This difference reflects the differing roles of the two articles: Article 2.1 
specifies the conditions for imposing  a safeguard, while Article 4.2 specifies the factors that must 
be examined by an authority. Thus, Article 4.2 requires an authority to examine both absolute and 
relative increases; while Article 2.1 provides that either one of these two types of increases  will 
meet this increased quantity condition.  
4. The context of Article 2 – with its requirement for increases in absolute terms or relative to 
domestic production – indicates that Article 4.2(a)'s reference to increases in imports "in absolute WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
- C-14 - 
 
  and relati ve terms" is a reference to these same numerical comparisons. That is, when 
Article  4.2(a) mentions increased imports in "relative terms" as a factor that competent authorities 
must consider in their investigation, this is a reference to the increase relat ive to domestic 
production as specified in Article 2.1.    
5. Further, the structure and plain text of Article 4.2(a) indicate that its reference to increased 
imports in "relative terms" as a factor to be considered by competent authorities concerns 
domesti c production , as opposed to domestic consumption or market share. In particular, the very 
next factor listed in Article 4.2(a), following its reference to increases in imports in relative terms, 
concerns " the share of the domestic market taken by increased  imports." Market share is normally 
evaluated in terms of domestic consumption. If the "relative terms" in the prior clause were to 
mean relative to domestic consumption, then there would be no purpose to inclusion of a 
subsequent clause requiring an exami nation of domestic market share.  
6. Moreover, the factors permissible for competent authorities to consider under Article 4.2(a), 
beyond those enumerated in the article, will depend on the particular facts and circumstances in 
the investigation at issue, including the impact on the domestic industry at issue. The Appellate 
Body stressed in US – Wheat Gluten that competent authorities must, where necessary, 
"undertake additional investigative steps . . . in order to fulfill their obligation to evaluate all 
relevant factors."  
QUESTION II: PARALLELISM  
7. Regarding Article 5.1, the first and last sentences of that Article do not preclude the 
application of a safeguard measure on a range of models of the investigated product that is 
narrower than the range of mo dels for which investigating authorities made a finding of serious 
injury. The first sentence of Article 5.1 establishes the maximum permissible extent, or ceiling, for 
the application of a safeguard measure. It allows Members to apply safeguards " only to the extent 
necessary to prevent or remedy serious injury" caused by increased imports and to "facilitate 
adjustment" of the domestic industry. The first sentence of Article 5.1 does not contain any 
requirement to apply a safeguard to every model included i n the investigation of serious injury.  
8. The last sentence of Article 5.1 – "Members should choose measures most suitable for the 
achievement of these objectives" – accords Members discretion on choosing the appropriate 
safeguard measure. First, it is ex pressed in terms of "should," not "shall," which means that the 
sentence does not impose an obligation enforceable in dispute settlement. Second, by using the 
phrase "suitable" to achievement of objectives, the sentence leaves to a Member's discretion what  
particular measures may or may not be "suitable" in the particular circumstances.   
9. Turning to "the principle of 'parallelism,'" the United States cautions that the application and 
enforcement of abstract principles not set out in the WTO Agreement woul d be fundamentally at 
odds with the customary rules of interpretation of public international law. To the extent that 
"parallelism" has any role in evaluating the consistency of a measure with obligations under the 
Safeguards Agreement, it is only if that term is used as a shorthand for a specific obligation, or set 
of obligations, expressly stated in the text of the agreement.  
10. Here, the United States understands that "parallelism" is shorthand for the proposition that 
if imports from all geographic so urces are considered in determining that increased imports are 
causing serious injury, while imports from a specific number of those sources are then excluded 
from the application of the safeguard measure, that could result in a measure that is inconsisten t 
with the obligations in Article 2 of the Safeguards Agreement. The Appellate Body in US – Wheat 
Gluten  found that such a gap between the two could only be justified if the investigating 
authorities establish that imports from countries covered by the saf eguard measure satisfied the 
conditions for the application of the safeguard under Articles 2.1 and 4.2.  
11. The present circumstances, by contrast, do not involve the exclusion of certain geographic 
sources and, therefore, do not implicate the Article 2. 2 issue addressed in Wheat Gluten . Rather, 
the present dispute involves a Member's conclusion that applying the safeguard measure to all of 
the models of the imported product covered by the competent authorities' finding of serious injury 
was not necessary . This separate evaluation does not call into question the identity of the product 
or the conclusion that the product caused serious injury within the meaning of Article 2.1, and it WT/DS490/R/Add.1 • WT/DS496/R/Add.1  
 
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  complies with the Article 2.2 obligation to apply any safeguard measure "t o a product being 
imported irrespective of its source."  
12. As is the case with Article 5.1, Article 2.1 does not require a Member to apply a safeguard 
measure to every  model included in the Member's investigation of serious injury. The plain text of 
Article 2.1 states that a Member " may apply a safeguard measure" based on the conditions listed 
in the Article; it does not state that the Member must apply the safeguard measure to every model 
within the scope of products explicitly subject to the Member's inj ury investigation. In other words, 
Article 2.1 does not prevent a Member from choosing to narrow the scope of application of a 
safeguard measure.  
QUESTION III: NOTIFICATIONS  
13. Regarding notifications, Article 12 does not necessarily require that informa tion be disclosed 
prior to entry into force of a safeguard measure. Rather, Article 12 provides that certain 
notifications must be made "immediately" upon three different events. Depending on the 
circumstances, this could result in notifications being made  before or after entry into force.  
14. Article 12.1 addresses timing, requiring Members to "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 
imports; and (c) taking a decision to apply or extend a safeguard measure."  
15. Article 12.2 enumerates certain information to be provided in the notices  under 
Article  12.1(b) and  (c): " evidence of serious injury 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." According  to the 
Appellate Body in US – Wheat Gluten , Article 12.2 is concerned with the content  of Article 12.1 
notices, and not whether those notices are timely . By contrast, Article 12.1 concerns the timeliness 
of notices based on an "immediate" standard – which  the Appellate Body in US – Wheat Gluten 
stated is focused on ensuring "the Committee on Safeguards and Members of the WTO have 
sufficient time to review the notification."  
16. As to the content requirements of Article 12.2, the kind of information that mu st be provided 
in Article 12.1(b) and 12.1(c) notices will differ depending on the factual circumstances. 
Significantly, the Appellate Body in US – Wheat Gluten recognized that the adequacy of notices 
under Article 12 must be evaluated in the context of th e information available to competent 
authorities at the time, the complexity of the notifications, the need for translations, and other 
factors. We further note that Article 3.2 imposes a blanket prohibition on disclosure of confidential 
information, which  would apply even to information that might be considered "relevant" for 
purposes of Article 12.2.  
 
 
__________