WORLD TRADE  
ORGANIZATION   
WT/DS415/R 
WT/DS416/R 
WT/DS417/R WT/DS418/R 
31 January 2012 
 
(12-0542) 
 Original:   Spanish 
 
 
     
 
DOMINICAN REPUBLIC - SAFEGUARD MEASURES 
ON IMPORTS OF POLYPROPYLENE BAGS 
AND TUBULAR FABRIC 
  
Final Report of the Panel 
 
  
 
  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page i 
  
  TABLE OF CONTENTS 
 
Page 
 
I.  INTRODUCTION .................................................................................................................. .. 1 
A.  REQUEST FOR CONSULTATIONS  .................................................................................................. 1  
B.  ESTABLISHMENT AND COMPOSITION OF THE PANEL  .................................................................. 1  
C.  PARTICIPATION OF THIRD PARTIES  ............................................................................................. 2  
D.  PANEL PROCEEDINGS  .................................................................................................................. 3  
II.  FACTUAL ASPECTS .............................................................................................................. 4 
A.  APPLICABLE DOMESTIC LEGISLATION IN THE DOMINICAN REPUBLIC  ....................................... 4  
1.  Domestic legislation on safeguards .......................................................................................... 4  
2.  Domestic legislation on tariffs ............................................................................................... ... 5 
B.  IMPUGNED MEASURES AND PRODUCTS AT ISSUE  ....................................................................... 5  
C.  PROCEDURE CARRIED OUT BY THE COMPETENT AUTHORITY  ................................................... 6  
1.  Initiation of the investigation ............................................................................................... .... 6 
2.  Preliminary determination ..................................................................................................... .. 7 
3.  Final determination ........................................................................................................... ....... 7 
III. PARTIES' REQUESTS FOR RULINGS AND RECOMMENDATIONS ........................ 10  
A.  COMPLAINANTS  ........................................................................................................................ 10  
B.  DOMINICAN REPUBLIC  .............................................................................................................. 12  
IV.  ARGUMENTS OF THE PARTIES ...................................................................................... 13  
V.  ARGUMENTS OF THE THIRD PARTIES ........................................................................ 13  
VI.  INTERIM REVIEW ............................................................................................................... 13 
A.  CHANGES IN THE DESCRIPTION OF THE FACTUAL ASPECTS  ..................................................... 13  
B.  CHANGES IN THE FINDINGS SECTION  ........................................................................................ 14  
C.  CHANGES IN THE CONCLUSIONS AND RECOMMENDATIONS SECTION  ...................................... 17  
D.  MINOR CORRECTIONS AND ADDITIONAL REFERENCES  ............................................................ 17  
VII. FINDINGS ...................................................................................................................... ......... 18 
A.  PRELIMINARY CONSIDERATIONS  .............................................................................................. 18  
1.  Standard of review ............................................................................................................ ...... 18 
2.  Interpretation of the relevan t rules of the agreements ........................................................ 21  
3.  Burden of proof ............................................................................................................... ........ 22 
4.  Provisional measure ........................................................................................................... ..... 23 
B.  WHETHER ARTICLE XIX  OF THE GATT  1994  AND THE AGREEMENT ON SAFEGUARDS 
ARE APPLICABLE TO THE PRESENT DISPUTE  ............................................................................ 24  
1.  Main arguments of the parties ............................................................................................... 2 4 
(a)  Dominican Republic ............................................................................................................ ..... 24 
(b)  Complainants .................................................................................................................. .......... 27 
2.  Main arguments of the third parties ..................................................................................... 29  
(a)  Colombia ...................................................................................................................... ............. 29  WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page ii   
  (b)  United States ................................................................................................................. ............ 30  
(c)  Nicaragua ..................................................................................................................... ............. 30  
(d)  European Union ................................................................................................................ ........ 31 
3.  Assessment by  the Panel ....................................................................................................... .. 32 
(a)  Introductory comment .......................................................................................................... ..... 32 
(b)  Whether the impugned measures suspend obligations contained in Article I:1 of the 
GATT 1994 ..................................................................................................................... .......... 34 
(c)  Whether the impugned measures suspend obligations contained in Article II:1(b), 
second sentence, of the GATT 1994 ......................................................................................... 37  
(d)  Conclusion .................................................................................................................... ............ 41  
C.  P
RELIMINARY OBJECTIONS RAISED BY THE DOMINICAN REPUBLIC  ........................................ 42  
1.  Jurisdiction of the Panel to settle the dispute on the basis of agreements that are 
not covered agreements ........................................................................................................ .. 42 
(a)  Main arguments of the parties ................................................................................................. .. 42 
(b)  Main arguments of the third parties .......................................................................................... 43 
(c)  Assessment of the Panel ....................................................................................................... ..... 43 
2.  Other preliminary objections put forward by the Dominican Republic ........................... 43  
(a)  Main arguments of the parties ................................................................................................. .. 43 
(b)  Main arguments of the third parties .......................................................................................... 46 
(c)  Assessment of the Panel ....................................................................................................... ..... 46 
D.  WHETHER THE PROVISIONAL MEASURE AND THE DEFINITIVE MEASURE ARE 
INCONSISTENT WITH ARTICLE XIX  OF THE GATT  1994  AND WITH VARIOUS 
PROVISIONS OF THE AGREEMENT ON SAFEGUARDS  ................................................................. 46  
1.  Whether the competent authority acted inconsistently with obligations under the 
covered agreements as regards the det ermination of unforeseen developments 
and the effect of GATT obligations ....................................................................................... 46  
(a)  Main arguments of the parties ................................................................................................. .. 46 
(b)  Main arguments of third parties ............................................................................................... . 50 
(c)  Assessment of the Panel ....................................................................................................... ..... 51 
2.  Whether the competent authority acted inconsistently with obligations under the 
covered agreements in defining  the domestic industry ........................................................ 58  
(a)  Main arguments of the parties ................................................................................................. .. 58 
(b)  Main arguments of the third parties .......................................................................................... 62 
(c)  Assessment of the Panel ....................................................................................................... ..... 63 
(d)  Conclusion .................................................................................................................... ............ 71  
3.  Whether the competent authority acted inconsistently with obligations under the 
covered agreements with regard to the determination of an increase in imports in absolute and relative terms ................................................................................................  72 
(a)  Main arguments of the parties ................................................................................................. .. 72 
(b)  Main arguments of the third parties .......................................................................................... 75 
(c)  Assessment of the Panel ....................................................................................................... ..... 76  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page iii 
  
  4.  Whether the competent authority acted inconsistently with obligations under the 
covered agreements with regard to the determination of serious injury to the 
domestic industry ............................................................................................................. ....... 84 
(a)  Main arguments of the parties ................................................................................................. .. 84 
(b)  Main arguments of the third parties .......................................................................................... 87 
(c)  Assessment of the Panel ....................................................................................................... ..... 88 
5.  Whether the competent authority acted inconsistently with obligations under the 
covered agreements as regards the determ ination of a causal link between the 
increase in imports and the serious injury .......................................................................... 104  
(a)  Main arguments of the parties .................................................................................................  104 
(b)  Main arguments of the third parties ........................................................................................ 10 7 
(c)  Assessment of the facts ....................................................................................................... .... 108 
E.  W
HETHER THE DOMINICAN REPUBLIC ACTED INCONSISTENTLY WITH OBLIGATIONS 
UNDER THE COVERED AGREEMENTS AS REGARDS THE APPLICATION OF THE 
IMPUGNED MEASURES AND BY FAILING TO COMPLY WITH CERTAIN PROCEDURAL 
OBLIGATIONS  .......................................................................................................................... 110  
1.  Whether the competent authority acted inconsistently with obligations under the 
covered agreements by failing to comply with the principle of parallelism  and 
Article 9.1 of the Agreement on Safeguards ....................................................................... 110  
(a)  Main arguments of the parties .................................................................................................  110 
(b)  Main arguments of the third parties ........................................................................................ 11 2 
(c)  Assessment of the Panel ....................................................................................................... ... 113 
2.  Whether the Dominican Republic acted inconsistently with obligations under the 
covered agreements by failing to comply with certain procedural obligations ............... 120  
(a)  Main arguments of the parties .................................................................................................  120 
(b)  Main arguments of third parties .............................................................................................. 122 
(c)  Assessment of the Panel ....................................................................................................... ... 123 
F.  SPECIAL AND DIFFERENTIAL TREATMENT  .............................................................................. 130  
VIII. CONCLUSIONS AND RECOMMENDATIONS .............................................................. 130  
  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page v 
  
  LIST OF ANNEXES 
 
ANNEX A 
 
EXECUTIVE SUMMARIES OF THE FIRST WRITTEN SUBMISSIONS OF 
THE PARTIES 
 
Contents Page 
A-1 Executive summary of the first written submission of the 
complainants A-2 
A-2 Executive summary of the first written submission of the 
Dominican Republic A-11 
 
 
ANNEX B 
 
SUBMISSIONS OF THE THIRD PARTIES OR EXECUTIVE SUMMARIES THEREOF 
 
Contents Page 
B-1 Executive summary of the submission of Colombia B-2 
B-2 Executive summary of the submission of the United States B-10 
B-3 Submission of Nicaragua B-15 
B-4 Executive summary of the submission of Panama B-18 
B-5 Submission of Turkey B-21 
B-6 Executive summary of the submission of the European Union B-23 
 
 
ANNEX C 
 
ORAL STATEMENTS OF THE PART IES AT THE FIRST SUBSTANTIVE 
MEETING OR EXECUTIVE SUMMARIES THEREOF 
 
Contents Page 
C-1 Executive summary of the opening oral statement of the 
complainants C-2 
C-2 Executive Summary of the opening oral statement of the 
Dominican Republic C-11 
C-3 Closing oral statement of the complainants C-17 
C-4 Closing oral statement of the Dominican Republic C-19 
 
 WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page vi   
  ANNEX D 
 
ORAL STATEMENTS OF THE THIRD PA RTIES AT THE SPECIAL SESSION OF 
THE FIRST SUBSTANTIVE MEETING 
 
Contents Page 
D-1 Executive summary of the oral statement of Colombia D-2 
D-2 Oral statement of the United States D-6 
D-3 Oral statement of Panama D-8 
D-4 Oral statement of Turkey D-10 
D-5 Oral statement of the European Union D-11 
 
 
ANNEX E 
 
EXECUTIVE SUMMARIES OF THE SECOND WRITTEN SUBMISSIONS OF 
THE PARTIES 
 
Contents Page 
E-1 Executive summary of the second written submission of the 
complainants E-2 
E-2 Executive summary of the second written submission of the 
Dominican Republic E-11 
 
 
ANNEX F 
 
ORAL STATEMENTS OF THE PARTIE S AT THE SECOND SUBSTANTIVE 
MEETING OR EXECUTIVE SUMMARIES THEREOF 
 
Contents Page 
F-1 Executive summary of the opening oral statement of the 
Dominican Republic F-2 
F-2 Executive summary of the opening oral statement of the 
complainants F-9 
F-3 Closing oral statement of the Dominican Republic F-19 
F-4 Closing oral statement of the complainants F-21 
 
  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page vii 
  
  ANNEX G 
 
REQUEST FOR THE ESTABLISHMENT OF A PANEL 
 
Contents Page 
G-1 Request for the establishment of a panel by Costa Rica, WT/DS415/7 
(22 December 2010) G-2 
G-2 Request for the establishment of a panel by Guatemala, WT/DS416/7 
(22 December 2010) G-7 
G-3 Request for the establishment of a panel by Honduras, WT/DS417/7 
(6 January 2011) G-12 
G-4 Request for the establishment of a panel by El Salvador, 
WT/DS418/7 (6 January 2011) G-17 
 
 
ANNEX H 
 
COMMUNICATION FROM THE PANEL 
 
Contents Page 
H Communication from the Panel in response to the request by the 
Dominican Republic for a preliminary ruling (12 May 2011) H-2 WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page viii   
  TABLE OF CASES CITED IN THIS REPORT 
 
Short Title  Full Case Title and Citation  
Argentina – Footwear (EC)  Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515 
Argentina – Footwear (EC)  Panel Report, Argentina – Safeguard Measures on Imports of Footwear , 
WT/DS121/R, adopted 12 January 2000, as modified by Appellate Body 
Report WT/DS121/AB/R, DSR 2000:II, 575 
Argentina – Preserved Peaches  Panel Report, Argentina – Definitive Safeguard Measure on Imports of 
Preserved Peaches , WT/DS238/R, adopted 15 April 2003, DSR 2003:III, 
1037 
Argentina – Textiles and 
Apparel  Appellate Body Report, Argentina – Measures Affecting Imports of 
Footwear, Textiles, Apparel and Other Items , WT/DS56/AB/R and Corr.1, 
adopted 22 April 1998, DSR 1998:III, 1003 
Brazil – Aircraft  Panel Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body 
Report WT/DS46/AB/R, DSR 1999:III, 1221 
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167 
Brazil – Desiccated Coconut  Panel Report, Brazil – Measures Affecting Desiccated Coconut , WT/DS22/R, 
adopted 20 March 1997, upheld by Appellate Body Report WT/DS22/AB/R, DSR 1997:I, 189 
Canada – Autos  Appellate Body Report, Canada – Certain Measures Affecting the 
Automotive Industry , WT/DS139/AB/R, WT/DS142/AB/R, adopted 
19 June 2000, DSR 2000:VI, 2985  
Canada – Dairy (Article 21.5 – New Zealand and US II)  Appellate Body Report, Canada – Measures Affecting the Importation of 
Milk and the Exportation of Dairy Products – Second Recourse to Article 21.5 of the DSU by New Zealand and the United States , 
WT/DS103/AB/RW2, WT/DS113/AB/RW2, adopted 17 January 2003, 
DSR 2003:I, 213 
EC – Bananas III  Appellate Body Report, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 
25 September 1997, DSR 1997:II, 591 
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping Measures 
on Certain Iron or Steel Fasteners from China , WT/DS397/R and Corr.1, 
adopted 28 July 2011, as modified by Appellate Body Report 
WT/DS397/AB/R 
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Tariff Preferences  Appellate Body Report, European Communities – Conditions for the 
Granting of Tariff Preference s to Developing Countries , WT/DS246/AB/R, 
adopted 20 April 2004, DSR 2004:III, 925  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page ix 
  
  Short Title  Full Case Title and Citation  
EC – Tariff Preferences Panel Report, European Communities – Conditions for the Granting of Tariff 
Preferences to Developing Countries , WT/DS246/R, adopted 20 April 2004, 
as modified by Appellate Body Report WT/DS/246/AB/R, DSR 2004:III, 
1009 
EC – Bed Linen (Article 21.5 – 
India)  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003, 
DSR 2003:III, 965 
EC – Export Subsidies on Sugar (Australia) Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Australia , WT/DS265/R, adopted 19 May 2005, as modified by 
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIII, 6499 
EC – Export Subsidies on 
Sugar (Brazil) Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Brazil , WT/DS266/R, adopted 19 May 2005, as modified by 
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV, 6793 
EC – Export Subsidies on 
Sugar (Thailand) Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Thailand , WT/DS283/R, adopted 19 May 2005, as modified by 
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:XIV, 7071 
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R, adopted 15 January 2008, and Corr.1, 
DSR 2008:I, 3  
EC and certain member States 
– Large Civil Aircraft Panel Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/R, adopted 
1 June 2011, as modified by Appellate Body Report WT/DS316/AB/R  
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R, adopted 
23 October 2002, DSR 2002:VIII, 3045 (Corr.1, DSR 2006:XII, 5473) 
Chile – Price Band System  Panel Report, Chile – Price Band System and Safeguard Measures Relating 
to Certain Agricultural Products , WT/DS207/R, adopted 23 October 2002, as 
modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, 3127 
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R and Corr.1, WT/DS395/R and Corr.1, WT/DS398/R 
and Corr.1, circulated to WTO Member s 5 July 2011 [appeal in progress]  
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile 
Parts , WT/DS339/AB/R, WT /DS340/AB/R, WT/DS342/AB/R, adopted 
12 January 2009 
China – Publications and Audiovisual Products Panel Report, China – Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertainment Products , 
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report WT/DS363/AB/R
 
Korea – Dairy  Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, 3 WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page x   
  Short Title  Full Case Title and Citation  
Korea – Dairy  Panel Report, Korea – Definitive Safeguard Measure on Imports of Certain 
Dairy Products , WT/DS98/R and Corr.1, adopted 12 January 2000, as 
modified by Appellate Body Report WT/DS98/AB/R, DSR 2000:I, 49 
US – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/AB/R, adopted 20 May 2008, 
DSR 2008:II, 513  
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 
23 August 2001, DSR 2001:X, 4697 
US – Upland Cotton  Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3 
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry 
from China, WT/DS392/R, adopted 25 October 2010  
US – Shrimp  Appellate Body Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R, adopted 6 November 1998, 
DSR 1998:VII, 2755 
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R, adopted 23 May 1997, 
and Corr.1, DSR 1997:I, 323  
US – Lamb  Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, 
DSR 2001:IX, 4051 
US – Lamb  Panel Report, United States – Safeguard Measures on Imports of Fresh, 
Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/R, WT/DS178/R, adopted 16 May 2001, as modified by 
Appellate Body Report WT/DS177/AB/R, WT/DS178/AB/R, 
DSR 2001:IX, 4107 
US – Anti-Dumping and Countervailing Duties (China)
 Appellate Body Report, United States – Definitive Anti-Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R, 
adopted 25 March 2011  
US – Oil Country Tubular Goods Sunset Reviews
 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, 3257 
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, 
DSR 1996:I, 3  
US – Wheat Gluten  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten from the European Communities , WT/DS166/AB/R, 
adopted 19 January 2001, DSR 2001:II, 717 
US – Wheat Gluten  Panel Report, United States – Definitive Safeguard Measures on Imports of 
Wheat Gluten from the European Communities , WT/DS166/R, adopted 
19 January 2001, as modified by Appellate Body Report WT/DS166/AB/R, 
DSR 2001:III, 779  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page xi 
  
  Short Title  Full Case Title and Citation  
US – Large Civil Aircraft 
(2nd complaint) Panel Report, United States – Measures Affecting Trade in Large Civil 
Aircraft (Second Complaint) , WT/DS353/R, circulated to WTO Members 
31 March 2011 [appeal in progress]  
US – Cotton Yarn  Appellate Body Report, United States – Transitional Safeguard Measure on 
Combed Cotton Yarn from Pakistan , WT/DS192/AB/R, adopted 
5 November 2001, DSR 2001:XII, 6027 
US – Countervailing Duty Investigation on DRAMS Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, 8131 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 
20 April 2005, DSR 2005:XII, 5663 (Corr.1, DSR 2006:XII, 5475)  
US – 1916 Act  Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, 
DSR 2000:X, 4793 
US – 1916 Act (EC) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by the 
European Communities , WT/DS136/R and Corr.1, adopted 
26 September 2000, upheld by Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4593
 
US – 1916 Act (Japan) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by 
Japan , WT/DS162/R and Add.1, adopted 26 September 2000, upheld by 
Appellate Body Report WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4831
 
US – Softwood Lumber IV  Appellate Body Report, United States – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada , 
WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, 571 
US – Softwood Lumber VI (Article 21.5 – Canada) Appellate Body Report, United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada , WT/DS277/AB/RW, adopted 9 May 2006, and 
Corr.1, DSR 2006:XI, 4865
 
US – Tyres (China) Appellate Body Report, United States – Measures Affecting Imports of 
Certain Passenger Vehicle and Light Truck Tyres from China , 
WT/DS399/AB/R, adopted 5 October 2011  
US – Steel Safeguards  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R, WT/DS249/AB/R, 
WT/DS251/AB/R, WT/DS252/AB/R, WT /DS253/AB/R, WT/DS254/AB/R, 
WT/DS258/AB/R, WT/DS259/AB/R , adopted 10 December 2003, 
DSR 2003:VII, 3117 
US – Steel Safeguards  Panel Reports, United States – Definitive Safeguard Measures on Imports of 
Certain Steel Products , WT/DS248/R / WT/DS249/R / WT/DS251/R / 
WT/DS252/R / WT/DS253/R / WT/DS254/R / WT/DS258/R / WT/DS259/R, and Corr.1, adopted 10 December 2003, as modified by Appellate Body 
Report WT/DS248/AB/R, WT/D S249/AB/R, WT/DS251/AB/R, 
WT/DS252/AB/R, WT/DS253/AB/R, WT /DS254/AB/R, WT/DS258/AB/R, 
WT/DS259/AB/R, DSR 2003:VIII, 3273 WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page xii   
  Short Title  Full Case Title and Citation  
US – Line Pipe  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Circular Welded Carbon Quality Line Pipe from Korea , 
WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, 1403 
US – Line Pipe  Panel Report, United States – Definitive Safeguard Measures on Imports of 
Circular Welded Carbon Quality Line Pipe from Korea , WT/DS202/R, 
adopted 8 March 2002, as modified by Appellate Body Report WT/DS202/AB/R, DSR 2002:IV, 1473 
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R, adopted 17 November 2000, 
DSR 2000:XI, 5295 
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, 9 
Japan – Alcoholic Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 
1 November 1996, DSR 1996:I, 97 
Mexico – Anti-Dumping Measures on Rice Appellate Body Report, Mexico – Definitive Anti-Dump ing Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted 
20 December 2005, DSR 2005:XXII, 10853 
Mexico – Anti-Dumping 
Measures on Rice Panel Report, Mexico – Definitive Anti-Dumping Me asures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R, adopted 20 December 2005, 
as modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, 11007 
Mexico – Taxes on Soft Drinks Appellate Body Report, Mexico – Tax Measures on Soft Drinks and Other 
Beverages , WT/DS308/AB/R, adopted 24 March 2006, DSR 2006:I, 3 
  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page xiii 
  
  LIST OF ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviations Explanation 
Anti-Dumping Agreement Agreement on Implem entation of Article VI of the General 
Agreement on Tariffs and Trade 1994 
ADC Apparent domestic consumption 
Bags Division Bags Division of FERSAN 
CARICOM Caribbean Common Market 
Commission Commission for the Regulation of Unfair Trade Practices and 
Safeguard Measures 
DEI Departmento de Investigaci ones (Investigation Department) 
Central America- 
Dominican Republic FTA Free Trade Agreement between Central America and the 
Dominican Republic 
DR-CAFTA Free Trade Agreement between the Dominican Republic, 
Central America and the United States 
DR-CAFTA FTA Free Trade Agreement between the Dominican Republic, 
Central America and the United States 
DSB Dispute Settlement Body 
DSU Dispute Settlement Understanding 
Definitive Resolution Commis sion Resolution CDC-RD-SG- 089-2010 of 5 October 2010 
FERSAN Fertilizantes Santo Domingo, C. por A. 
Final public notice Public notice of the Co mmission concerning the application of the 
Definitive Measure 
FTA Free trade agreement 
GATT General Agreement on Tariffs and Trade 
GATT 1994 General Agreement on Tariffs and Trade 1994 
Final Technical Report Final Technical Report of 13 July 2010 issued by the DEI 
Initial Technical Report Initial Technical Report of 20 November 2009 issued by the DEI 
Initial Resolution Commission Resolution CDC-RD-SG-046-2009 of 
15 December 2009 
Law 146-00 Law No. 146-00 on tariff reform 
Law 1-02 Law No. 1-02 on Unfair Trade Practices and Safeguard Measures 
MFN tariff Most-favoured-nation treatment tariff 
Preliminary public notice Public notice by the Commission concerning the application of the 
provisional measure 
Preliminary Resolution Commission Resolution CDC-RD-SG-061-2010 of 16 March 2010 
Preliminary Technical 
Report Preliminary Technical Report of March 2010 issued by the DEI 
Regulations of Law 1-02 Implementing Regulations of Law No. 1-02 on Unfair Trade Practices 
and Safeguard Measures 
WTO World Trade Organization 
  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 1 
  
  I. INTRODUCTION 
A. R
EQUEST FOR CONSULTATIONS  
1.1 On 15 October 2010 Costa Rica and Guatemala,  on 18 October Honduras and on 19 October 
El Salvador each separately requested consulta tions with the Dominican Republic pursuant to 
Article 4 of the Understanding on Rules and Pro cedures Governing the Settlement of Disputes (DSU), 
Article XXII of the General Agreement on Tariffs  and Trade 1994 (GATT 1994) and Article 14 of the 
Agreement On Safeguards, concerning the provisiona l and final safeguard measures imposed by the 
Dominican Republic on imports of polypropylene bags and tubular fabric and the investigation that 
led to the imposition of those measures.1 
1.2 On 22 October 2010, Panama requested, by separ ate communications, to be joined in the 
consultations requested by Costa Rica, Guat emala, Honduras and El Salvador with the 
Dominican Republic.2  On 25 October Guatemala, and on 26 October Costa Rica, Honduras and 
El Salvador, also each requested to be joined in  the consultations requested by each of the other 
complainants with the Dominican Republic.3  The Dominican Republic accepted the requests to join 
consultations submitted by Costa Rica, El Salvador, Guatemala, Honduras and Panama.4 
1.3 Consultations were held on 16 and 17 November 2010, but the parties failed to reach a 
mutually satisfactory solution.  On 15 December Costa Rica and Guatemala and on 20 December Honduras and El Salvador (the complainants) in  separate communications requested the Dispute 
Settlement Body (DSU) to establish a panel pursuant to Article 6 of the DSU and Article 14 of the 
Agreement on Safeguards.
5 
B. ESTABLISHMENT AND COMPOSITION OF THE PANEL  
1.4 At its meeting on 7 February 2011, the DSB established a single panel pursuant to the 
requests of Costa Rica, El Salvador, Guatemala a nd Honduras, in accordance with Article 6 of the 
DSU.  The Panel's terms of reference are the following: 
To examine, in the light of the relevant pr ovisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Costa Rica in 
document WT/DS415/7, by El Salvador in document WT/DS418/7, by Guatemala in document WT/DS416/7 and by Honduras in document WT/DS417/7, and to make 
                                                      
1 Requests for consultations submitted respectiv ely by Costa Rica, Guatemala, Honduras and 
El Salvador, documents WT/DS415/1, WT/DS416/1, WT/DS417/1 and WT/DS418/1 (all of 21 October 2010) (request for consultations). 
2 Requests to join consultations, WT/DS415/2, WT/DS416/2, WT/DS417/2 and WT/DS418/2 (all of 
27 October 2010). 
3 Requests to join consultations, documents WT/DS415/5, WT/DS417/5 and WT/DS418/5;  
WT/DS416/3, WT/DS417/3 and WT/DS418/3;  WT/DS415/4, WT/DS416/5 and WT/DS418/4;  and 
WT/DS415/3, WT/DS416/4 and WT/DS417/4 (all of 29 October 2010). 
4 Acceptance by the Dominican Republic of  the requests to join consultations, 
documents WT/DS415/6, WT/DS416 /6, WT/DS417/6 and WT/DS418/6 (all of 5 November 2010). 
5 Requests for the establishment of a panel, documents WT/DS415/7 (22 December 2010), 
WT/DS416/7 (22 December 2010), WT/D S417/7 (6 January 2011) and WT/DS4 18/7 (6 January 2011) (request 
for the establishment of the panel). WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 2   
  such findings as will assist the DSB in ma king the recommendations or in giving the 
rulings provided for in those agreements.
6 
1.5 Pursuant to the complainants' joint request and in accordance with Article 8.7 of the DSU, on 
11 March 2011 the Director-General composed the Panel as follows: 
 Chairman: Mr Pierre Pettigrew 
  Members: Ms Enie Neri de Ross 
   Ms Gisela Bolívar 
 C. P
ARTICIPATION OF THIRD PARTIES  
1.6 China, Colombia, Costa Rica (concerning disputes WT/DS416, WT/DS417 and WT/DS418), 
El Salvador (concerning disputes WT/DS415, WT/DS416 and WT/DS417), the European Union, 
Guatemala (concerning disputes WT/DS415, WT/DS417 and WT/DS418), Honduras (concerning 
disputes WT/DS415, WT/DS416 and WT/DS418), Nicara gua, Panama, Turkey and the United States 
reserved the right to participate as third parties in the panel proceedings. 
1.7 On 14 March 2011 Colombia requested the Panel to enhance its third party rights so as also to 
enable it to:  have access to the written submissi ons, written versions of the oral submissions and 
evidence submitted at the second substantive meeting;   attend the second substantive meeting of the 
Panel with the parties, and to present oral arguments  and ask questions at that meeting;  and receive 
copies of the summary of the arguments in the factual part of the report.  Having heard the opinions of 
other third parties (the European Union, Nicaragua, Panama and the United States) and the parties, on 
5 April the Panel rejected Colombia's request a nd said that it would explain the reasons for its 
decision in its report. 
1.8 In its decision, the Panel took into consider ation the following aspects:  (i) Colombia was 
expressly excluded by the Dominican Republic fr om the application of the impugned measures, 
together with other developing country Members;  (i i) in the Panel's view, Colombia did not make a 
case for the existence of any factual circumstance  that would place it in a particular position with 
respect to the defendant compared with other third pa rties;  (iii) in the Panel's view, Colombia also 
failed to make a case for the existence of reasons why its rights as a third party under the DSU and the 
working procedures adopted by the Panel would not be sufficient to enable it to protect its interests in 
the present dispute;  (iv) the granting of additional rights could have led in the present case to delays 
in the timetable or the imposition of additional bu rdens on the parties to the dispute;  (v) when 
consulted, none of the parties to the dispute suppor ted Colombia's request for additional rights beyond 
those set out in the DSU and working procedures adopted  by the Panel;  (vi) none of the third parties 
expressed support for Colombia's request, other than to  ask that if the Panel were to grant additional 
rights they should be extended to all third parties;  and (vii) the Panel considered it important to avoid 
the risk that the granting of additional rights to one or more third parties should unduly blur the 
distinction established in the DSU between the rights of the parties and the rights of third parties.7 
                                                      
6 Constitution of the Panel, document WT/DS415 /8, WT/DS416/8, WT/DS417/8 and WT/DS418/8 
(14 March 2011). 
7 The Panel took into account the earlier decisions of other panels in EC – Export Subsidies on Sugar 
(Australia ), EC – Export Subsidies on Sugar (Brazil ), EC – Export Subsidies on Sugar (Thailand ), US – Upland  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 3 
  
  1.9 In accordance with the timetable adopted by  the Panel, on 13 and 16 May 2011 it received 
written submissions from the following third partie s:  Colombia, the European Union, Nicaragua, 
Panama, Turkey and the United States.  On 16 June the Panel met with the third parties in a closed 
session of the substantive meeting with the parties.  At that meeting, Colombia, the European Union, 
Panama, Turkey and the United States made oral presentations.  The Panel addressed questions to the third parties and received replies from Colombia, th e European Union, Turkey and the United States 
on 30 June. 
D. P
ANEL PROCEEDINGS  
1.10 After consulting the parties, on 25 March 2011 the Panel adopted the working procedures and 
timetable for this dispute.  At the request of the Dominican Republic, on 5 April the Panel adopted 
additional working procedures relating to the prot ection of business confidential information (BCI) 
that might be submitted during the procedure.  At the request of the parties, the Panel decided that its 
proceedings would take place in the Spanish language;   third parties had the option to present their 
submissions and arguments in any of the working languages of the World Trade Organization (WTO). 
1.11 On 20 April 2011 the Dominican Republic requested  the Panel to issue a preliminary ruling to 
the effect that Article XIX of the GATT 1994 and the Agreement on Safeguards were not applicable 
to the present dispute and that the dispute was therefore devoid of purpose.  In the same 
communication the Dominican Republic requested th e Panel to suspend its proceedings until it had 
issued its preliminary ruling and to postpone the deadlines provided for in the timetable, including the 
deadline for the Dominican Republic to present its first written submission.  Having heard the opinion 
of the complainants, on 12 May the Panel informed the parties that it did not consider it appropriate to 
issue a preliminary ruling on whether GATT Artic le XIX and the Agreem ent on Safeguards were 
applicable to the present dispute.  The Panel did not  consider it appropriate to suspend the proceedings 
and postpone the deadline provided for in the timetabl e.  The Panel stated that it would rule on the 
issues raised by the Dominican Republic in its fi nal report, and therefore invited the parties and 
third parties to develop their arguments on the issues raised by the Dominican Republic. 
1.12 In accordance with the timetable adopted by the Panel, the parties presented their first written 
submissions on 1 April and 3 May 2011, respectively.  The parties presented their second written submissions on 7 July.  The first substantive meetin g of the Panel with the parties was held on 15 and 
16 June;  the second substantive meeting took place on 26 and 27 July.  The Panel put questions to the 
parties and received replies from them on 30 J une and 8 August, as well as comments on 15 August 
from each of the parties to the replies submitted by the other party.  The complainants in turn put 
questions, through the Panel, to the Domini can Republic to which the latter replied. 
1.13 The Panel submitted the descriptive (factual and ar gument sections) of its final report to the 
parties on 19 August 2011.  On that same date th e Panel informed Colombia, the European Union, 
Nicaragua, Panama, Turkey and the United States th at the descriptive part would contain summaries 
of the arguments of each of them.  On 31 August and 2 September the Dominican Republic and the complaining parties, respectively, submitted comme nts and asked for some aspects of the descriptive 
part of the report to be revised and clarified. 
1.14 The Panel issued its interim report to the pa rties on 19 October 2011.  On 2 November the 
complainants and the Dominican Republic submitte d written comments and requested that certain 
                                                                                                                                                                     
Cotton,  EC – Tariff Preferences, US -1916 Act (EC) , US -1916 Act (Japan) , EC – Bananas III  and US – Large 
Civil Aircraft (2nd complaint) . WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 4   
  aspects of the interim report be revised.  Neither of the parties requested a meeting with the Panel on 
the issues identified in their comments.  On 16 November the parties submitted written comments on 
each other's comments. 
1.15 The Panel issued its final report to the parties on 23 November 2011. 
II. FACTUAL ASPECTS 
A. A
PPLICABLE DOMESTIC LEGISLATION IN THE DOMINICAN REPUBLIC  
1. Domestic legislation on safeguards 
2.1 The Dominican Republic's domestic legislation on safeguards is contained in Law No. 1-02 
on unfair trade practices and safeguard measures ( Law 1-02 )8, and in the Implementing Regulations of 
Law No. 1-02 on unfair trade practices and safeguard measures ( Regulations of Law 1-02 ).9  These 
instruments constitute the implementation of the Safeguards Agreement and of Article XIX of the 
GATT 1994 at national level.10 
2.2 In accordance with Law 1-02 , the Commission for the Regulation of Unfair Trade Practices 
and Safeguard Measures (Commission) is the co mpetent national authority responsible for 
investigations and for determining th e application of safeguard measures.11  The Commission's 
Investigation Department (DEI) submits the results of its investigations, together with proposals and 
recommendations, to the Commission, and is responsible for the registering, classifying, notifications, 
hearings, checking documentation, archiving an d controlling of procedures used in each case.12 
2.3 Law 1-02  defines "safeguard measures" as measures designed to regulate imports on a 
temporary basis, and their objective is to prevent or remedy serious injury to the domestic industry 
and to facilitate adjustment for domestic producers.13  According to Law 1-02 , "safeguard measures" 
shall be applied when a product, irrespective of its origin, is being imported in such increased 
quantities, absolute or relative to domestic produc tion, and under such conditions as to cause or 
threaten to cause injury to a domestic industry th at produces like or directly competitive products.  
Measures are applied to the product irrespective of its origin.14  According to the Regulations of  
Law 1-02 , the term "safeguards", both in the Regulations of Law 1-02  and in Law 1-02 , shall have the 
same meaning as the term "safeguards"  in the WTO Agreement on Safeguards.15 
2.4 With respect to the form taken by safe guard measures in the Dominican Republic, Law 1-02  
provides that they may consist of tariff increases, tariff quotas or import ceilings.16 
2.5 Law 1-02 , establishes the rules governing the ap plication of safeguard measures and 
procedures for notification and c onsultations relating to the WTO.17  The obligation of and procedure 
                                                      
8 Exhibit RDO-11. 
9 Exhibit RDO-26. 
10 Dominican Republic, reply to Panel questions Nos. 31 and 32. 
11 Law 1-02 , Article 7, Exhibit RDO-11. 
12 Article 4, Regulations  of Law 1-02 , Exhibit RDO-11. 
13 Article 57 of Law 1-02 , Exhibit RDO-11. 
14 Article 58 of Law 1-02 , Exhibit RDO-11. 
15 Article 18, subsection xxviii, of the Regulations of Law 1-02 , Exhibit RDO-26. 
16 Article 73 of Law 1-02 , Exhibit RDO-11.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 5 
  
  for notification to the WTO Committee on Safeguards are also set out in the Regulations of 
Law 1-02 .
18 
2.6 Law 1-02  and the Regulations of Law 1-02  provide for the possibility of excluding products 
originating in a developing country  from the application of safeguard measures where its share of total 
imports of the investigated product does not exceed 3 per cent of imports into the Dominican Republic, provided that the developing countries whose individual shares of imports 
account for less than 3 per cent collectively represent not  more than 9 per cent of total imports of the 
product in question.
19 
2. Domestic legislation on tariffs 
2.7 The Dominican Republic's domestic legislation on tariffs is contained in Law No. 146-00 on 
tariff reform ( Law 146-00 ).20  Law 146-00  amends Law 14-93 of 26 August 1993 adopting the 
customs tariff of the Dominican Republic.  The descr iption and coding of goods are set out in Annex I 
of Law 146-00 .  The structure is based on the Nomenclatu re of the Single Spanish Version of the 
Commodity Description and Coding System.21  Ad valorem  duties payable on goods imported into the 
Dominican Republic are set out in Annex I of Law 140-00 .22  In accordance with that Annex, the 
most-favoured-nation tariff (MFN tariff) appli cable to tubular fabric, classified under 
tariff line 5407.20.20, is 14 per cent ad valorem , while the MFN tariff applicable to polypropylene 
bags, classified under tariff line 6305.33.90, is 20 per cent ad valorem .23 
2.8 In accordance with Law 146-00 , the Tariff Studies Commission of the Ministry of Finance is 
responsible for recommending appropriate adjustment s to the duties fixed in the Law to the executive 
power.  The executive power subsequently sends the relevant recommendations to the National 
Congress, which ultimately makes the chang es it considers appropriate in the duties.24  Law 146-00  
provides that "in no case shall taxes be levied  on foreign trade by administrative means".25 
B. IMPUGNED MEASURES AND PRODUCTS AT ISSUE  
2.9 The present dispute concerns the provisional and definitive safeguard measures imposed by 
the Dominican Republic on imports of polypropylene  bags and tubular fabric  and the investigation 
that led to the imposition of those measures.  More specifically, the impugned measures comprise: 
(a) The provisional safeguard adopte d through Commission Resolution 
CDC-RD-SG-061-2010 of 16 March 2010 (Preliminary Resolution)26; 
                                                                                                                                                                     
17 Title IV (Articles 57 to 81) of Law 1-02 , Exhibit RDO-11.  See also, Dominican Republic, reply to 
Panel questions Nos. 31 and 32. 
18 Part IV, Chapter II, of the Regulations of Law 1-02, Exhibit RDO-26. 
19 Article 72 of Law 1-02 , Exhibit RDO-11;  Article 272 of the Regulations of Law 1-02 , 
Exhibit RDO-26. 
20 Law 146-00 , Exhibit CEGH-22. 
21 Article 1 of Law 146-00 , Exhibit CEGH-22. 
22 Article 2 of Law 146-00 , Exhibit CEGH-22. 
23 Fragments of Law 146-00 adopting the Customs Tariff of the Dominican Republic, 
Exhibit CEGH-27. 
24 Article 5 of Law 146-00 , Exhibit CEGH-22. 
25 Article 7 of Law 146-00 , Exhibit CEGH-22. 
26 Preliminary Resolution, Exhibit CEGH-5. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 6   
  (b) the definitive safeguard, adopted through Commission Resolution 
CDC-RD-SG-089-2010 of 5 Octobe r 2010 (Definitive Resolution)
27;  and 
(c) the investigation carried out by the Commission and the DEI. 
2.10 The provisional and definitive measures appl y to imports of the following products: 
(a) Tubular fabric classified under tariff line 5407.20.20 of the Customs Tariff of the 
Dominican Republic, and therein described as "woven fabric of synthetic polypropylene yarn", which is used for the manufacture of bags;  and 
(b) polypropylene bags, classified under tariff line 6305.33.90 of the Customs Tariff of 
the Dominican Republic, and described there as "bags or sacks for packaging", which 
are used for the packaging of food, agro-industrial and industrial products. 
2.11 The Dominican Republic has bound the tariffs for the products corresponding to each of these 
tariff lines in the WTO at the level of 40 per cent ad valorem .
28  The impugned measures are not 
covered by any entry for "other duties or charges" made by the Dominican Republic in column 6 of its 
WTO schedule of concessions.29 
C. PROCEDURE CARRIED OUT BY THE COMPETENT AUTHORITY  
1. Initiation of the investigation 
2.12 On 20 July 2009 the company Fertilizantes Sant o Domingo, C. por A. (FERSAN) requested 
the Commission to open an investigation for the impos ition of a definitive safeguard of 74.3 per cent 
for a period of three years and, on an emergenc y basis as a precautionary measure, the imposition of a 
provisional safeguard of 40 per cent on imports of poly propylene bags and tubular  fabric under tariff 
lines 6305.33.10, 6305.33.90 and 5407.20.20 of the General Customs Tariff of the Dominican Republic.
30 
2.13 On the basis of the DEI's Initial Technical Re port of 20 November 2009 (Initial Technical 
Report)31, on 15 December the Commission issued Resolution CDC-RD-SG-046-2009 announcing 
that it was initiating an investigation for the a pplication of safeguard measures to imports of 
polypropylene bags and tubular fabric under tari ff lines 6305.33.10, 6305.33.90 and 5407.20.20 of the 
General Customs Tariff of the Dominican Republic, coming from all origins (Initial Resolution).  On 
17 December, the Commission published a no tice of initiation of an investigation.32 
                                                      
27 Definitive Resolution, Exhibit CEGH-9. 
28 Dominican Republic, request for a preliminary ruling, paragraph 42. 
29 Dominican Republic, reply to Panel question No. 183. 
30 Request for the initiation of an investigation submitted by FERSAN and reply to the application form 
for producers, WTO General Safeguard Investigation, Exhibit CEGH-12, p. 1. 
31 Initial report, Exhibit CEGH-3. 
32 Notice, General Safeguard Investigation Concerning Textiles of Synthetic Filament Yarn and Bags 
of Polyethylene and Polypropylene (15 December 2009), Exhibit CEGH-4.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 7 
  
  2.14 On 18 December 2009 the Dominican Republic notified the WTO Committee on Safeguards, 
pursuant to Article 12.1(a) of the Agreement on Safe guards, that its competent authority had initiated 
a safeguards procedure.
33 
2.15 The investigation covered the period between the years 2006 to 2009.34 
2. Preliminary determination 
2.16 On the basis of the Preliminary Technical Repor t issued by the DEI (Preliminary Technical 
Report)35, on 16 March 2010 the Commission issued its Preliminary Resolution through which it 
decided to continue the investigation a nd impose provisional measures of 38 per cent ad valorem for 
200 days on imports of tubular fabric and polypropy lene bags classified under tariff lines 5407.20.20 
and 6305.33.90 of the Customs Tariff of the Dominican Republic, while excluding from the investigation polyethylene bags classified under tariff line 6305.33.10 on the grounds that they were 
not manufactured by the domestic producer.
36  In this Preliminary Resolution the Commission 
decided, pursuant to Article 9.1 of the Agreemen t on Safeguards, to exclude imports from Colombia, 
Indonesia, Mexico and Panama from the applicati on of the provisional safeguard because they were 
developing countries which together accounted for 1.21 per cent of the imports under investigation.37  
On 25 March the Commission published the notice of application of the provisional measure (preliminary public notice).
38 
2.17 On 26 March de 2010, pursuant to Articles 6, 9.1, 12.1(b) and 12.1(c) of the Agreement on 
Safeguards, the Dominican Republic notified the WTO Committee on Safeguards of the adoption of 
the provisional safeguard.39 
2.18 On 30 March 2010 the Commission adopted an  Addendum to the Preliminary Resolution 
specifying that the provisional measure:  (i) woul d apply from 1 April to 17 October 2010;  and 
(ii) would not apply to goods "originating in" (the  text of the Preliminary Resolution says "coming 
from") Colombia, Indonesia, Mexico and Panama.40 
3. Final determination 
2.19 On the basis of the DEI's Final Technical Report dated 13 July 2010 (Final Technical 
Report)41, on 5 October the Commission issued its Definitive Resolution constituting the final 
decision on the investigation for the application of a definitive safeguard measure.  Through this 
Resolution the Commission definitively adopted a duty of 38 per cent  ad valorem  on imports of 
tubular fabric and polypropylene bags classified  under tariff lines 5407.20.20 and 6305.33.90, as from 
18 October 2010 until 20 April 2012, subject to a six-monthly reduction timetable.  In that Resolution the Commission decided, in acco rdance with Article 72 of Law 1-02 , Article 272.I of the Regulations 
                                                      
33 Notification, document G/SG/N/6/DOM/3 (14 January 2010), Exhibit CEGH-17. 
34 Dominican Republic, reply to Panel question No. 173. 
35 Preliminary Technical Report, Exhibit CEGH-7. 
36 Preliminary Resolution, Exhibit CEGH-5. 
37 Preliminary Resolution, Exhibit CEGH-5. 
38 Notice, General Safeguard Investigation Concerning Tubular Fabric and Polypropylene 
Bags (25 March 2010), Exhibit CEGH-8. 
39 Notification, document G/SG/N/7/DOM/1, G/SG /N/8/DOM/1, G/SG/N/11/DOM/1 (6 April 2010), 
Exhibit CEGH-18. 
40 Addendum to the Preliminary Resolution, Exhibit CEGH-6. 
41 Final Technical Report, Exhibit CEGH-10. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 8   
  of Law 1-02 , and Article 9.1 of the Agreement on Safegua rds, to exclude imports originating in 
Colombia, Indonesia, Mexico and Panama from the a pplication of the definitive safeguard because 
they were developing countries which together accounted for 1.21 per cent of the imports under 
investigation.  According to the Definitive Resolu tion and the additional explanations provided by the 
Dominican Republic, the measure would be applied as follows:
42 
Date Tariff line Applicable rate Origin 
18 Oct 2010 
to 18 Apr 2011 5407.20.20 14% Duty applicable to imports from Colombia, 
Indonesia, Mexico and Panama 
38% Duty applicable to all other origins 
6305.33.90 20% Duty applicable to imports from Colombia, 
Indonesia, Mexico and Panama 
38% Duty applicable to all other origins 
19 Apr 2011 to 19 Oct 2011 5407.20.20 14% Duty applicable to imports from Colombia, 
Indonesia, Mexico and Panama 
28% Duty applicable to all other origins 
6305.33.90 20% Duty applicable to imports from Colombia, 
Indonesia, Mexico and Panama 
28% Duty applicable to all other origins 
20 Oct 2011 to 20 Apr 2012 5407.20.20 14% Duty applicable to all origins 
6305.33.90 20% Duty applicable to all origins 
 
2.20 As from 21 April 2012, imports of the products in question originating in the member 
countries of the Caribbean Common Market (CARICOM) and countries parties to the free trade agreement between Central America and the Dominican Republic (Central America-
Dominican Republic FTA) and parties to the free trade agreement between the Dominican Republic, 
Central America and the United States (DR-CAFTA FTA) would be free of customs duties.  In the case of all other origins, as of that date imports  of tubular fabric classified under tariff line 5407.20.20 
would be subject to the payment of the MFN tariff equivalent to 14 per cent ad valorem , and imports 
of polypropylene bags classified under tariff line 6305.33.90 would be subject to the payment of the 
MFN tariff equivalent to 20 per cent ad valorem .
43 
2.21 On 6 October 2010 the Commission published the notice of application of the definitive 
measure (final public notice).44 
2.22 On 8 October 2010, pursuant to Articles 12.4 and 12.1(b) of the Agreement on Safeguards, 
the Dominican Republic notified the Definitive Resolution and the adoption of the definitive 
safeguard to the WTO Committee on Safeguards.45 
                                                      
42 Definitive Resolution, Exhibit CEGH-9;  complainants, reply to Panel questions Nos. 30 and 179;  
Dominican Republic, reply to Panel questions Nos. 30 and 179. 
43 Definitive Resolution, Exhibit CEGH-9;  complainants, reply to Panel questions Nos. 30 and 179;  
Dominican Republic, reply to Panel questions Nos. 30 and 179. 
44 Notice, General Safeguard Investigation Concerning Tubular Fabric and Polypropylene 
Bags (6 October 2010), Exhibit CEGH-11.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 9 
  
  2.23 On 19 April 2011, the Dominican Republic submitted to the Panel a copy of 
Resolution CDC-RD-SG-105-2011 of 13 April, in which the Commission indicated that in accordance 
with the reduction timetable contained in the Defi nitive Resolution, the safeguard applicable to 
imports of tubular fabric and poly propylene bags as of that date and until 19 October 2011 would be 
28 per cent ad valorem .  Resolution CDC-RD-SG-105-2011 confirms that the next reduction phase 
will begin on 20 October 2011 in accord ance with the Definitive Resolution.
46 
2.24 On 27 October 2011 the Dominican Republic  submitted to the Panel a copy of 
Resolution CDC-RD-SG-109-2011 of 17 October,  through which the Commission decided to 
maintain the application of an ad valorem  duty of 28 per cent on imports of tubular fabric and 
polypropylene bags until 20 April 2012.  Resoluti on CDC-RD-SG-109-2011 explains that it is based 
on the Commission's faculty to analyse the performance of imports of the products in question and, prior to each reduction phase in the timetable of progressive liberalization, decide whether the 
reduction process should be speeded up or revised.
47  The Dominican Republic explained that, 
notwithstanding this revision, the safeguard measure  applicable to imports of tubular fabric and 
polypropylene bags would expire on 20 April 20 12 and that imports originating in Colombia, 
Indonesia, Mexico and Panama would continue to be exempted from the application of the measure.48  
In the light of the revision adopted through R esolution CDC-RD-SG-109-2011, the measure would be 
applied as follows: 
Date Tariff line Applicable rate Origin 
18 Oct 2010 to 
18 Apr 2011 5407.20.20 14% Duty applicable to imports from Colombia, Indonesia, 
Mexico and Panama 
38% Duty applicable to all other origins 
6305.33.90 20% Duty applicable to imports from Colombia, Indonesia, 
Mexico and Panama 
38% Duty applicable to all other origins 
19 Apr 2011 to 20 Apr 2012 5407.20.20 14% Duty applicable to imports from Colombia, Indonesia, 
Mexico and Panama 
28% Duty applicable to all other origins 
6305.33.90 20% Duty applicable to imports from Colombia, Indonesia, 
Mexico and Panama 
28% Duty applicable to all other origins 
 
                                                                                                                                                                     
45 Notification, document G/SG/7/DOM/1/Suppl.1 and G/SG/N/8/DOM/1/Suppl.1 (13 October 2010), 
Exhibit CEGH-19.  This document was replaced by documents G/SG/N/8/DOM/1/S uppl.2, G/SG/N/10/DOM/1 
and G/SG/N/11/DOM/1/Suppl.1 (18 October 2010), Exhibit CEGH-21. 
46 Resolution CDC-RD-SG-105-2011 issuing the decision on the six-monthly reduction timetable of 
the definitive safeguard established by Resolutio n No. CDC-RD-SG-089-2010  of 5 October 2010. 
47 Resolution CDC-RD-SG-109-2011 issuing the decision on the six-monthly reduction timetable of 
the definitive safeguard established by Resolutio n No. CDC-RD-SG-089-2010  of 5 October 2010. 
48 Communication from the Dominican Republic, 1 November 2011. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 10   
  III. PARTIES' REQUESTS FOR RULINGS AND RECOMMENDATIONS 
A. C
OMPLAINANTS  
3.1 The complainants request the Panel to find th at the impugned measures are inconsistent with 
the Dominican Republic's obligations under Artic le XIX of the GATT 1994 and the Agreement on 
Safeguards.49  More specifically, the complainants claim that: 
(a) The domestic industry was defined in a manner that is inconsistent with Articles 3.1, 
4.1(c) and 4.2(c) of the Agreement on Safeguards, and therefore the provisional and 
definitive measures are inconsistent with Articles 2.1, 4.1(a), 4.1(c), 4.2(a), 4.2(b), 
4.2(c), and 6 of the Agreement on Safegua rds (the last-mentioned provision with 
respect to the provisional measure) and with Article XIX:1(a) of the GATT 1994; 
(b) the preliminary and final determinations  do not contain reasoned and adequate 
findings regarding unforeseen developments a nd the effect of the obligations incurred 
under the GATT 1994, and are therefore incons istent with Article XIX:1(a) of the 
GATT 1994 and with Articles 3.1, last senten ce, 4.2(c) and 11.1(a) of the Agreement 
on Safeguards;  consequently, the provisiona l and definitive measures are inconsistent 
with Articles 2.1, 4.2, 11.1(a) and 6 of the Agreement on Safeguards (the 
last-mentioned provision with respect to the provisional measure) and with 
Article XIX:1(a) of the GATT 1994; 
(c) the preliminary and definitive determinations  with respect to the increase in imports 
are inconsistent with Articles 2.1, 3.1, last  sentence, 4.2(c) and 6 of the Agreement on 
Safeguards (the last-mentioned provision w ith respect to the provisional measure) and 
with Article XIX:1(a) of the GATT 1994, and therefore the provisional and definitive 
measures are inconsistent with Articl es 2.1, 4.2 and 6 of the Agreement on 
Safeguards (the last-mentioned provision w ith respect to the provisional measure) and 
with Article XIX:1(a) of the GATT 1994; 
(d) the preliminary and definitive determinati ons on serious injury to the domestic 
industry and critical circumstances (in the case of the provisional measure) are 
inconsistent with Articles 2.1, 3.1, last sen tence, 4.1(a), 4.2(a), 4.2(c) and 6 of the 
Agreement on Safeguards (the last-menti oned provision with respect of the 
provisional measure) and with Article XIX: 1(a) of the GATT 1994, and therefore the 
provisional and definitive measures are inconsis tent with Articles 2.1, 3.1, 4.1(a), 4.2 
and 6 of the Agreement on Safeguards (the last-mentioned provision with respect to 
the provisional measure) and with Article XIX:1(a) of the GATT 1994; 
(e) the preliminary and definitive determinati ons with respect to the causal link between 
the increase in imports and the serious injury to the domestic industry are inconsistent 
with Articles 2.1, 3.1, last sentence, 4.1(a), 4.2(a), 4.2(c) and 6 of the Agreement on Safeguards (the last-mentioned provision w ith respect to the provisional measure) and 
with Article XIX:1(a) of the GATT 1994, and therefore the provisional and definitive 
measures are inconsistent with Articles 2.1, 3.1, last sentence, 4.1(a), 4.2(a), 4.2(b), 
                                                      
49 Complainants, first written submission, paragraph 477;  second written submission, 
paragraphs 308-309.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 11 
  
  4.2(c), 5.1 and 6 of the Agreement on Safe guards (the last-mentioned provision with 
respect to the provisional measure) and with Article XIX:1(a) of the GATT 1994; 
(f) the provisional and definitive measures do not comply with the principle of 
parallelism and exclude from their application imports that were included in the preliminary and definitive determinations , and therefore are inconsistent with 
Articles 2.1, 2.2, 3.1, 4.2(a), 4.2(b), 4.2( c), 9.1 and 6 of the Agreement on Safeguards 
(the last-mentioned provision with respect to  the provisional measure);  furthermore, 
by not excluding all developing parties whose share of imports does not exceed 
3 per cent, the provisional and definitive meas ures are inconsistent with Article 9.1 of 
the Agreement on Safeguards;  and 
(g) by failing to notify the definitive measure in  a timely manner, failing to afford an 
opportunity for consultations and failing to  provide an opportunity to obtain an 
adequate means of trade compensation, th e Dominican Republic acted inconsistently 
with Article XIX:2 of the GATT 1994 and Artic les 8.1 and 12.3 of the Agreement on 
Safeguards. 
3.2 In the event that the Panel c onsiders that Article XIX of the GATT 1994 and the Agreement 
on Safeguards are not applicable to the present dispute, the complainants request the Panel 
alternatively to find as follows:
50 
(a) The exclusion of imports from Colombia, Indonesia, Mexico and Panama from the 
application of the duties provided for in the provisional and definitive measures is inconsistent with Article I:1 of the GATT 1994;  and 
(b) the provisional and definitive measures are duties and charges other than ordinary 
customs duties that are contrary to Articles II:1(b), second sentence, and II:1(a) of the 
GATT 1994. 
3.3 In accordance with Article 19.1 of the DSU,  the complainants request the Panel to 
recommend that the DSB request the Dominican Repub lic to bring the definitive safeguard measure 
into conformity with the relevant provisions of the Agreement on Safeguards and the GATT 1994.
51  
The complainants also request the Panel to ma ke suggestions for implementation concerning the 
definitive measure, and in particular to suggest to  the Dominican Republic that it should not redo the 
investigation but rather immediately put an end to the definitive measure.52 
                                                      
50 Complainants, reply to the Dominican Republic's request for a preliminary ruling, paragraphs 122 
and 123;  second written submission, paragraph 312. 
51 Complainants, first written submission, paragraph 478. 
52 Complainants, first written submission, paragraphs 462 and 476;  second written submission, 
paragraph 313. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 12   
  B. D
OMINICAN REPUBLIC  
3.4 The Dominican Republic rejects all the cl aims put forward by the complainants.53  I n  
addition, the Dominican Republic rai ses the following preliminary issues:54 
(a) That the present dispute is devoid of purpose, since Article XIX of the GATT 1994 
and the Agreement on Safeguards are not applicable to the impugned measures; 
(b) that the present dispute concerns alleged viol ations of agreements that are not covered 
agreements, namely free trade agreements signed by the Dominican Republic, over 
which the Panel lacks jurisdiction; 
(c) that the complainants' claim that the alleged lack of findings of unforeseen 
developments affects the determinations on  the increase in imports, serious injury and 
the causal link does not fall within the Panel's terms of reference because it was not duly identified in the request for the establishment of the Panel; 
(d) that the following claims by the complainants  are not covered by the Panel's terms of 
reference since, although identified in the re quest for the establishment of the Panel, 
they were not identified in the request for consultations between the complainants and 
the Dominican Republic:  (i) that the determ ination on the causal link is inconsistent 
with Article 4.1(a) of the Safeguards Agre ement;  (ii) that the alleged lack of 
opportunity to obtain an adequate means of trade compensation is inconsistent with 
Article 8.1 of the Agreements of Safeguard s;  (iii) that the lack of reasoned and 
adequate findings and conclusions as to the need for the safeguard measure to 
facilitate adjustment of the domestic industry is inconsistent with Articles 3.1, 4.2(c) 
and 5.1 of the Agreements on Safeguards;  (iv) that the fact that the measures are not applied to products originating or coming from particular origins is inconsistent with 
Article I:1 of the GATT 1994;  and (v) that the measures at issue are contrary to 
Articles II:1(a), and II:1(b), second sentence, of the GATT 1994;  and 
(e) that, by failing in their first written submission to develop certain complaints 
identified in the request for the establishmen t of the Panel, the complainants have 
withdrawn those complaints. 
3.5 The Dominican Republic requests the Panel to find that Article XIX of the GATT 1994 and 
the Agreement on Safeguards are not applicable to the present dispute or, alternatively, to reject all 
the complaining parties' claims and arguments and find that the impugned measures are consistent with the GATT 1994 and the Agreement on Safeguards.
55 
                                                      
53 Dominican Republic, first written submission, sections 4.2 to 4.10. 
54 Dominican Republic, request for a preliminary ruling, paragraphs 1 and 55, and sections 3.4 and 3.5;  
first written submission, section 4.1.3, subheadings (A ), (B), (C) and (D);  second written submission, 
paragraph 128. 
55 Dominican Republic, first written submission, p. 189;  second written submission, paragraph 128.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 13 
  
  IV. ARGUMENTS OF THE PARTIES 
4.1 The arguments of the parties, as set out in  the written submissions and oral statements 
presented to the Panel, are attached to this Report as an addendum in Annexes A, C, E and F (see List 
of Annexes, pages iv-vi above). 
V. ARGUMENTS OF TH E THIRD PARTIES 
5.1 The arguments of the third parties, as set out in the written submissions and oral statements 
presented to the Panel, are attached to this Re port as an addendum in Annexes B and D (see above, 
List of Annexes, pages iv-vi). 
VI. INTERIM REVIEW 
6.1 On 19 October 2011 the Panel issued its Interim Report to the parties.
56  On 2 November, in 
accordance with the timetable and working procedures adopted by the Panel, the complainants and the 
Dominican Republic submitted comments and asked the Panel to revise certain aspects of the 
Interim Report.  On 16 November, the complainan ts and the Dominican Republic submitted written 
comments on each other's comments and requests for revision.  Neither of the parties requested a meeting with the Panel on the issues identified in their comments. 
6.2 Where appropriate, the Panel amended specific aspec ts of its Interim Report in the light of the 
comments and requests of the Parties, as explained below.  The Panel also made some revisions and 
corrections in the interests of greater clarity a nd precision.  These changes are summarized in this 
section of the Report.  Except wher e otherwise indicated, the numbers of the paragraphs and footnotes 
referred to in this section are those of the Final Report. 
A. C
HANGES IN THE DESCRIPTION OF THE FACTUAL ASPECTS  
 
6.3 On 27 October 2011, after the Interim Report had been issued, the Dominican Republic 
submitted to the Panel a copy of Commission Re solution CDC-RD-SG-109-2011 of 17 October, 
through which the Commission decided to maintain the application of a duty of 28 per cent ad valorem  to imports of tubular fabric and po lyethylene bags until 20 April 2012.  
Resolution CDC-RD-SG-109-2011 modifies the calenda r for the progressive liberalization of the 
impugned measures that had been adopted in th e Definitive Resolution as described in the 
Interim Report.  The complainants  requested that the Panel put this new Resolution on record as an 
undisputed fact.  The Dominican Republic did not comment on this request.  The Panel has included a 
reference to Resolution CDC-RD-SG-109-2011 of 17 October, together with a description of the 
manner in which the definitive measure would be  applied pursuant to this Resolution and the 
explanations provided by the Dominican Republic, in  the new paragraph 2.24 in the factual aspects 
section. 
6.4 In view of this new information, the Panel also  made changes in the description of the facts in 
paragraphs 7.68 and 7.86 of its Report. 
                                                      
56 See also above, paragraph 1.14. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 14   
  B. C
HANGES IN THE FINDINGS SECTION  
6.5 The Dominican Republic requests that the text of  paragraph 7.27 be amended so as to reflect 
more clearly and fully the arguments which it presente d.  The complainants consider that the changes 
requested by the Dominican Republic are unnecessary.  In their view, the parties' full arguments are 
already reflected in the annexes to the Report;  the se ction in paragraph 7.27 is merely a description of 
the main arguments, and does not seek to be exhaustiv e.  The complainants add that the Panel is not 
obliged to refer to the totality of  the arguments presented by the par ties and that, in any case, some of 
the arguments to which the Dominican Republic refers  are already included in the paragraph.  Taking 
into account that the amendment requested refl ects the Dominican Republic's written and oral 
arguments, the Panel has amended the relevant part of paragraph 7.27. 
6.6 The Dominican Republic requests that the text of  paragraph 7.31 be amended to reflect more 
clearly and fully the arguments which it presented.   The complainants did not comment on this 
request.  The Panel has amended the relevant part of paragraph 7.31. 
6.7 The Dominican Republic asserts that the In terim Report does not reproduce any of its 
arguments to the effect that the impugned measures ar e not "other duties or charges" and therefore do 
not suspend obligations under Article II:1(b), second sentence, of the GATT 1994.  The Dominican Republic therefore requests that a ne w paragraph containing those arguments and a 
reference to the relevant sections of its submissi ons and statements be adde d after paragraph 7.31.  
The complainants consider that it is unnecess ary to add the paragraph requested by the 
Dominican Republic.  In their opinion, paragraph 7. 28 of the Report already contains a reference to 
the arguments identified by the Dominican Republic and that it would suffice to amend that paragraph 
in order to satisfy this request.  The Panel does not  consider it necessary to include a new paragraph, 
since paragraph 7.28 already cited the argument s made by the Dominican Republic as well as 
references to the relevant sections of its submissions  and statements.  Howeve r, in paragraph 7.28 the 
Panel has added the additional language suggested  by the Dominican Republic insofar as it reflects 
arguments contained in its written submissions and statements. 
6.8 The Dominican Republic requests that the text of paragraph 7.32 be amended in order to 
reflect its arguments more clearly.  The complainan ts did not comment on this request.  Taking into 
account that the requested amendment reflects the ar guments presented by the Dominican Republic in 
its written submissions and statements, the Panel has amende d paragraph 7.32. 
6.9 The Dominican Republic requests that paragra ph 7.61 be amended as so to reflect its 
arguments more accurately.  The complainants did not comment on this request.  Taking into account 
the arguments presented by the Dominican Republic in its written submissions and statements, the 
Panel has made some changes to paragraph 7.61. 
6.10 The Dominican Republic requests that the text of  paragraph 7.68 be amended so as to reflect 
more correctly the language contained in the De finitive Resolution.  The complainants did not 
comment on this request.  Taking into account the Dominican Republic's request, the Panel has made 
some changes in paragraph 7.68 in order to re flect the language contained in the Commission's 
preliminary and definitive Resolutions. 
6.11 The Dominican Republic requests that it should be made clear in the third sentence of 
paragraph 7.69 that the argument mentioned therein is merely one of those which it presented on this 
point.  The complainants consider that the amen dment requested by the Dominican Republic does not 
contribute to greater clarity of the Report and on the contrary could lead to confusion or  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 15 
  
  misunderstanding with respect to the analysis by the Panel.  The complainants reiterate that in their 
view the Panel is not obliged to refer to the totalit y of the arguments presented by the parties and that, 
in any case, the Dominican Republic itself has admitted that some of the arguments to which it refers 
are already included elsewhere in the Report.  Taking into account that the requested amendment 
reflects the Dominican Republic's written and oral statements, the Panel has included the requested 
clarification in the third sentence of paragraph 7. 69.  The Panel has also included a reference to 
paragraph 7.27 in which, as the Dominican Republic  indicates, the arguments to which reference is 
made are presented. 
6.12 The complainants request that in a footnote to  paragraph 7.86 reference be made to their 
argument whereby the impugned measures were adopted on the basis of the domestic legislation and 
multilateral rules on safeguards and not any other rules such as, for example, Law 146-00 , which is 
the domestic legislation governing the imposition of customs tariffs in the Dominican Republic.  The 
Dominican Republic considers that this reference would be inappropriate since the paragraph in 
question concerns the analysis by the Panel and not the arguments of the parties, and also because this 
argument is already reflected in paragraph 7.38 of the Report.  The Panel has introduced the requested 
reference in its findings, as it reflects facts th at were established during the proceedings. 
6.13 The Dominican Republic requests that the citati on of a sentence contained in paragraph 7.87 
of the Interim Report be deleted.  In the opinion  of the Dominican Republic, the reference to this 
sentence, taken from its opening statement at the firs t meeting of the Panel, is a partial citation and 
does not correctly reflect the arguments it presented.  The complainants reject this request.  In their 
opinion, the requested change would undermine the analytical underpinning of the Panel's finding.  They add that the Panel correctly understood the Do minican Republic's statement.  They argue that 
the Dominican Republic is seeking to adduce argum ents already presented during the proceedings, 
which is inconsistent with the purpose of the interi m review stage.  Taking into account the arguments 
presented by the Dominican Republic in its submissi ons and statements, the Panel has made some 
changes in paragraph 7.87. 
6.14 Again with respect to paragraph 7.87 of the Interim Report, the Dominican Republic requests 
that the Panel delete the assertion to the effect that it had stated that the purpose of the impugned 
measures is to isolate at least temporarily and partially the domestic market from international prices 
of the products.  The complainants did not comment on this request.  In the view of the Panel, the 
wording to which the Dominican Republic objects reflects the manner in which the 
Dominican Republic described the situation of the domestic industry, which it sought to remedy 
through the imposition of the impugned measures.  In  accordance with the description contained in 
the Dominican Republic's written submissions, part of the injury incurred by the domestic industry 
was due to the fact that it could not raise sale pr ices owing to competition from imported products.  It 
therefore follows that the impugned measures did i ndeed have the purpose of isolating, at least 
temporarily and partially, the domestic market from international prices of the products.  In any case, 
the Dominican Republic's assertion that there is no exp licit statement in its written submissions to the 
effect that this was the purpose of the impugned measu res is correct.  The Panel has therefore deleted 
the phrase to which the Dominican Republic objects. 
6.15 The Dominican Republic requests that a text be  added following paragraph 7.103 in order to 
reflect its arguments more fully.  The complainan ts did not comment on this request.  Taking into 
account that the requested amendment reflects the Dominican Republic's written and oral arguments, 
the Panel has included a new pa ragraph numbered as 7.104. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 16   
  6.16 The Dominican Republic requests that a text be  added to paragraph 7.164 so as to reflect 
more fully its arguments concerning the definition of the domestic industry.  The complainants 
consider that the amendment requested by the Domi nican Republic is unnecessary.  In their view, the 
section that includes paragraph 7.164 merely cont ains a description of the main arguments, and 
therefore does not seek to be exhaustive.  The compla inants add that the Panel is not obliged to refer 
to the totality of the arguments presented by the pa rties.  Taking this request into account, the Panel 
has added two sentences to para graph 7.164 in order to reflect the language contained in the 
Dominican Republic's written submissions. 
6.17 The Dominican Republic requests that the text of  paragraph 7.184 be ame nded so as to reflect 
more accurately the language of the Preliminary Resolution.  The complainants consider that the 
Dominican Republic's request is groundless and not based on the text of the Preliminary Resolution.  The Panel has made a change in paragraph 7.184 in  order to reflect the wording of the Commission's 
Preliminary Resolution. 
6.18 The Dominican Republic requests that the text of paragraph 7.189 be amended by deleting the 
first two sentences of the paragraph on the ground s that they contain incorrect assertions.  The 
complainants consider that the Dominican Republic 's request is groundless.  In their opinion, the 
Dominican Republic claims that the Report reflect s a finding which the competent authority did not 
make.  The complainants add that through its reque st the Dominican Republic is seeking to adduce 
arguments already presented during the proceeding as well as new arguments that were not previously 
presented, all of which has nothing to do with the pu rpose of the interim review stage.  Taking into 
account the Dominican Republic's request, and to ensu re that the Report reflects the Panel's findings 
more clearly, the first two sentences of paragraph 7.18 9 have been deleted.  In the Panel's opinion this 
amendment does not alter the substance of the findings  contained in the paragraph.  In view of the 
foregoing, the Panel has also made changes in  paragraphs 7.189, 7.190, 7.193 and 7.198. 
6.19 The Dominican Republic requests that the text of  paragraph 7.250 be ame nded so as to reflect 
its arguments more accurately.  The complainants  did not comment on this request.  Taking into 
account that the requested amendment reflects the Dominican Republic's written and oral arguments, 
the Panel has made the requested change in paragraph 7.250. 
6.20 The complainants request that the text of paragraph 7.310 be amended to reflect more 
accurately the findings previously reached by the Panel.  The Dominican Republic did not comment 
on this request.  The Panel has made the requested ch ange in paragraph 7.310 in order to reflect the 
findings contained in earlier paragraphs of the Report. 
6.21 The complainants request the Panel to make a le gal finding on their claim that the competent 
authority acted inconsistently with obligations und er the covered agreements with respect to the 
determination of a causal relationship between the incr ease in imports and the serious injury.  In their 
opinion, such a finding is necessary in order to reach a positive solution to the dispute.  The 
complainants note that the Panel relie d on the precedent of the report in Argentina – Preserved 
Peaches  to confine itself to issuing a factual finding on the assessment made by the competent 
authority without issuing legal findings.  To support their reuest the complain ants cite as precedents 
the reports of the Appellate Body in Argentina – Footwear (EC)  and the Panel in Chile – Price Band 
System .  The Dominican Republic rejects this request a nd considers that the Panel acted correctly.  In 
the Dominican Republic's view, the Panel does not n eed to issue legal findings on the determination 
of causality for it to be possible to reach a positive solution to the dispute.  The Panel notes that it 
indicates in paragraphs 7.327 and 7.328 of its Report that, having concluded that  in its determinations 
of the existence of serious injury  the Dominican Republic acted inc onsistently with its obligations  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 17 
  
  under the covered agreement, it would be impossibl e then to find that the competent authority 
demonstrated the existence of a causal link between  the increased imports and a serious injury whose 
existence had not been demonstrated.  Accordingl y, the Panel does not consider it necessary to issue 
any finding as to whether the Dominican Republic  demonstrated that the increase in imports caused  
serious injury to the domestic industry.  In so do ing the Panel is adopting the same line of reasoning 
as the panel in Argentina – Preserved Peaches , whose report is later than the two precedents cited by 
the complainants.  The Panel points out, in  any case, that both the Appellate Body in Argentina – 
Footwear (EC)  and the panel in Chile – Price Band System  noted that a causal link cannot be shown 
to exist if it has previously been demonstrated th at substantive requirements such as the demonstration 
of the existence of serious injury had not been fulfilled.  In Argentina – Footwear (EC)  the 
Appellate Body also expressed surprise at the pane l's decision to evaluate the existence of a causal 
link after having determined that there had been ne ither an increase in import s nor serious injury.  
Taking the foregoing into account, the Panel does not  see any need to issue the additional finding 
requested by the complainants. 
C. C
HANGES IN THE CONCLUSIONS AND RECOMMENDATIONS SECTION  
6.22 The complainants request the Panel to make a dditional suggestions for implementation and, in 
particular, to suggest that the Dominican Republic immediately withdraw the definitive measure.  In 
their opinion, the withdrawal of the definitive measu re would be a realistic and viable implementation 
option that would not cause the Dominican Republic  major difficulties.  The Dominican Republic 
rejects this request.  In the Dominican Republic's opi nion, it is up to the Member concerned to decide 
how to implement the DSB's recommendations and, wh ile removal of the definitive measure would be 
a realistic and viable implementation option, the co mplainants have not made the case that it is the 
only possible option.  The Dominican Republic adds th at the violations found by the Panel are neither 
fundamental nor of general import and therefore not such as to v itiate the investigation as a whole 
ab initio .  The Panel notes that in paragraph 8.3 of the Report it recommends to the 
Dominican Republic that, in light of the findings cont ained in the Report, it should bring its measures 
into conformity with its obligations under the GATT 1994 and the Agreement on Safeguards.  Under 
Article 19.1 of the DSU, panels have the faculty to "suggest ways in which the Member concerned 
could implement the recommendations", when they see f it, but are not obliged to do so.  In the present 
case, it is true, as the complainants point out, that  the findings of inconsistency made by the Panel 
refer to fundamental aspects of the determina tions that led to the imposition of the impugned 
measures.  In these circumstances, the withdrawal  of the definitive measure is an obvious way in 
which the Dominican Republic could bring its measur es into conformity with its obligations under the 
GATT 1994 and the Agreement on Safeguards.  In an y case, it is for the Dominican Republic in the 
first place to determine how it will implement the Pa nel's recommendation.  Taking the foregoing into 
account, the Panel does not consider it appropriate  to suggest to the Dominican Republic the 
immediate withdrawal of the definitive measure. 
D. MINOR CORRECTIONS AND ADDITIONAL REFERENCES  
6.23 As a consequence of the comments by the parti es, minor typographical corrections have been 
made in paragraphs 1.1, 1.4, 1.6, 2.1, 3.4(c), 7.1,  7.38, 7.39, 7.66, 7.68, 7.74, 7.113, 7.115, 7.116, 
7.275, 7.276, 7.294, 7.299, 7.313, 7.337, 7.341, 7.380, 7.382, 7.385, 7.391, 7.422 and 8.1(g), as well 
as in footnote 74 to paragraph 7.10, footnote 186 to paragraph 7.114, footnote 192 to paragraph 7.119, 
footnote 301 to paragraph 7.210, footnote 422  to paragraph 7.324 and footnote 516 to 
paragraph 7.432. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 18   
  6.24 The Panel also made material corrections in paragr aphs 1.13, 2.2, 2.3, 2. 23, 3.1(f), 3.2, 3.4(d), 
7.10, 7.16, 7.17, 7.38, 7.39, 7.106, 7.108, 7.119, 7.138, 7.159, 7.163, 7.171, 7.185, 7.193, 7.219, 
7.220, 7.224, 7.225, 7.235, 7.259, 7.267, 7.290, 7.2 94, 7.300, 7.301, 7.331, 7.347, 7.349, 7.352, 7.357, 
7.417 and 7.427, as well as in footnote 12 to para graph 2.2, footnote 45 to paragraph 2.22, footnote 74 
to paragraph 7.10, footnote 104 to paragraph 7.32, footnote 265 to paragraph 7.179, footnote 292 to 
paragraph 7.197, footnote 310 to pa ragraph 7.221, footnote 312 to para graph 7.224, footnote 318 to 
paragraph 7.230, footnote 319 to paragraph 7.231, footnotes 327 and 330 to paragraph 7.235, 
footnote 441 to paragraph 7.338 and footnote 509 to paragraph 7.426. 
6.25 The Panel also updated the information in the ta ble of cases cited and the list of abbreviations 
used in this Report, as well as in paragraphs 1.14 and 1.15 and footnote 160 to paragraph 7.86. 
VII. FINDINGS 
A. P
RELIMINARY CONSIDERATIONS  
7.1 The matter before this Panel is the consistenc y of the provisional and definitive measures 
imposed by the Dominican Republic on imports of tubular fabric and polyp ropylene bags and the 
investigation underpinning these measures with va rious provisions of the Agreement on Safeguards 
and the GATT 1994.  In addition, the complainants  challenge specific procedural failings by the 
Dominican Republic.57 
7.2 Article 11 of the DSU establishes that the function of panels is to assist the DSB in 
discharging its responsibilities under the Understanding and the covered agreements.  Article 3.4 of 
the DSU provides that "recommendations or rulings made by the DSB shall be aimed at achieving a 
satisfactory settlement of the matter …". 
7.3 Before beginning its assessment of the issues raised  in the present dispute, the Panel considers 
it worthwhile to describe the legal fra mework that will apply in this Re port with regard to the standard 
of review, the interpretation of treaties and the burde n of proof.  The Panel will then go on to consider 
the Dominican Republic's claim that the impugned me asures are not covered by Article XIX of the 
GATT 1994 or by the Agreement on Safeguards and ther efore the dispute raised by the complainants, 
at least as concerns the claims put forwar d under those agreements, is devoid of purpose. 
1. Standard of review 
7.4 Subject to the reservation that the Panel will c onsider below the questi on of the applicability 
of Article XIX of the GATT 1994 and the Agreement on Safeguards to the present dispute, it should 
be pointed out that neither the GATT 1994 nor the Agreement on Safeguards contain specific 
additional provisions on the applicable standard of re view.  It should therefore be recalled that, as the 
Appellate Body stated in EC – Hormones , where there is no specific standard of review for the 
WTO multilateral trade agreement concerned, the provisions of Article 11 of the DSU are 
applicable.58 
7.5 Article 11 of the DSU establishes in an overall manner the standard of review  to be followed 
by WTO panels.  Thus, each panel should make "an objective assessment of the matter before it", 
including an objective assessment of the facts and the applicability of and the conformity with the 
                                                      
57 Complainants, first written submission, paragraph 28. 
58 Appellate Body Report, EC – Hormones , paragraph 116.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 19 
  
  relevant covered agreements.  The obligation imposed by Article 11 of the DSU includes the 
consideration of all aspects of the matt er, both factual and legal, and implies inter alia  that the panel 
should consider the issues raised by the parties,  without overstepping its terms of reference.  
Article 11 further provides that panels should also make such other findings as will assist the DSB in 
making the recommendations or in giving the ru lings provided for in the covered agreements. 
7.6 For the purposes of this dispute, and once again s ubject to the reservation that the Panel will 
consider below the question of the applicability of Article XIX of the GATT 1994 and the Agreement 
on Safeguards, it should be pointed out that the Appellate Body has analysed the scope of the 
standard of review  in the specific context of disputes raised under the Agreement on Safeguards.
59  In 
US – Cotton Yarn , the Appellate Body summarised the fundame ntal elements of this standard of 
review as follows: 
Our Reports in these disputes under the Agreement on Safeguards  spell out key 
elements of a panel's standard of review under Article 11 of the DSU in assessing 
whether the competent authorities complied with their obligations in making their 
determinations.  This standa rd may be summarised as follows:  panels must examine 
whether the competent authority has evaluated all relevant factors;  they must assess 
whether the competent authority has examin ed all the pertinent facts and assessed 
whether an adequate explanation has been provided as to how those facts support the 
determination;  and they must also consider whether the competent authority's 
explanation addresses fully the nature and co mplexities of the data and responds to 
other plausible interpretations of the da ta.  However, panels must not conduct a 
de novo  review of the evidence nor substitute their judgment for that of the competent 
authority.60 
7.7 As indicated by the Appellate Body, the standa rd of review applicable to panel findings on 
determinations by an inves tigating authority is not a de novo  review, which would involve repeating 
the analysis of the evidence carried ou t by the national authority, nor is it a total deference  which 
would simply involve following that authority's determination.61  Panels should rather: 
examine whether the conclusions reached by  the investigating authority are reasoned 
and adequate in the light of  the evidence on the record a nd other plausible alternative 
explanations.62  A panel's examination of an investigating authority's conclusions 
                                                      
59 See, for example, Appellate Body Reports, Argentina – Footwear (EC) ;  US – Lamb ;  and US – 
Wheat Gluten.  
60 Appellate Body Report, US – Cotton Yarn,  paragraph 74 (italics in the original).  Although the US – 
Cotton Yarn  case did not refer to the Agreement on Safeguards, the Appellate Body's statement is relevant as it 
summarises the findings contained in earlier reports concerning the standard of review for panels under the Agreement on Safeguards. 
61 Appellate Body Report, US – Tyres (China) , paragraph 123.  See also, Appellate Body Reports, EC – 
Hormones , paragraph 117;  Argentina – Footwear (EC) , paragraph 119;  and US – Cotton Yarn , paragraph 69. 
62 (Footnote from the original) See Appellate Body Report, Argentina – Footwear (EC) , 
paragraphs 119-121;  Appellate Body Report, US – Cotton Yarn , paragraphs 74-78;  Appellate Body Report, 
US – Countervailing Duty Investigation on DRAMS , paragraphs 183 and 186-188;  Appellate Body Report, 
US – Hot-Rolled Steel , paragraph 55;  Appellate Body Report, US – Lamb , paragraphs 101 and 105-108;  
Appellate Body Report, US – Steel Safeguards , paragraph 299;  Appellate Body Report, US – Wheat Gluten , 
paragraphs 160 and 161;  Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , 
paragraph 93;  and Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , 
paragraph 516. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 20   
  must be critical, and be based on the information contained in the record and the 
explanations given by the authority in its published report.
63  As the Appellate Body 
has explained, what is "adequate" will depe nd on the facts and circumstances of the 
particular case and the claims made.64, 65 
7.8 The Appellate Body has added that, with rega rd to its obligations under the Agreement on 
Safeguards, as well as those established in Artic le XIX of the GATT 1994, the competent authority 
must provide a "reasoned and adequate explanati on of how the facts support their determination".66  
This means in practice that the Panel's objective as sessment of the determinations of the competent 
authority may have, in principle, two aspects, one fo rmal and the other substantive.  The formal aspect 
is whether the competent authority has evaluated "a ll relevant factors";  th e substantive aspect is 
whether the competent authority has given a reasoned and adequate explanation for its 
determination.67  Thus, the fact that a panel must not carry out a de novo  review does not mean that it 
cannot conclude that the competent authority in a specific case has not provided a reasoned or 
adequate explanation for its determination.  Su ch a conclusion does not mean that the panel has 
engaged in a de novo  review, nor that it has substituted its own conclusions for those of the competent 
authority.68 
7.9 The examination of the reasoned and adequa te explanation provided by the competent 
authority should be based on the report published by the authorities.69  In this connection, Article 3.1, 
last sentence, of the Agreement on Safeguards prov ides that "[t]he competent authorities will publish 
a report setting forth their findings and reasoned conc lusions reached on all pertinent issues of fact 
and law."  With respect to this Report,  the Appellate Body has indicated that: 
Panels have a responsibility in WTO di spute settlement to assess whether a 
competent authority has complied with its obligation under Article 3.1 of the 
Agreement on Safeguards  to "set forth" "findings and reasoned conclusions" for their 
determinations.  The European Communities and Norway argue that panels could not 
fulfil this responsibility if they were left to "deduce for themselves" from the report of 
that competent authority the "rationale for the determinations from the facts and data 
contained in the report of the competent authority".70 
7.10 The Panel notes in this connection that, under the domestic legislation of the 
Dominican Republic, the Commission is the competen t authority for carrying out investigations and 
determining the application of safeguards.  Th e Commission's Initial Resolution initiating the 
investigation for the possible application of measure s refers to the Initial Technical Report issued by 
the DEI, the published version of which "is an integral part" of the Resolution.71  The Commission's 
                                                      
63 (Footnote from the original) See Appellate Body Report, US – Lamb , paragraph 106. 
64 (Footnote from the original) Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – 
Canada) , paragraph 93. 
65 Appellate Body Report, US – Tyres (China) , paragraph 123. 
66 Appellate Body Report, US – Steel Safeguards , paragraph 276.  See also Appellate Body Reports, 
US – Lamb , paragraph 103;  and US – Line Pipe , paragraph 217. 
67 Appellate Body Report, US – Lamb , paragraph 103.  See also, Appellate Body Report, US – Cotton 
Yarn , paragraph 72. 
68 Appellate Body Report, US – Lamb , paragraph 107. 
69 See, for example, Appellate Body Reports, US – Steel Safeguards, paragraphs 289 and 326;  and US 
– Tyres (China) , paragraph 123. 
70 Appellate Body Report, US – Steel Safeguards, paragraph 288 (italics in the original). 
71 Initial Resolution, Exhibit CEGH-2, pp. 3 and 8.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 21 
  
  Preliminary Resolution imposing the provisional meas ure refers to the Preliminary Technical Report 
issued by the DEI, which "is an integral part" of the Resolution.
72  Likewise, the Commission's 
Definitive Resolution imposing the definitive measure refers to the Final Technical Report issued by 
the DEI, which "is an integral part" of the Resolution.73  The Panel notes in any case that, under the 
domestic legislation of the Dominican Republic , the DEI does not have the power to issue 
determinations and its techni cal reports contain only "proposals and recommendations" to the 
Commission.74  In view of the foregoing, when examini ng the basis for the determinations of the 
Dominican Republic's competent authority, the Pane l will in principle base itself on the Commission's 
resolutions, supplemented by the findings and conclu sions contained in the DEI's technical reports 
which underpin those resolutions.75  These documents taken together  constitute the "published report" 
of the competent authority to whic h the Appellate Body has referred. 
7.11 In carrying out its objective assessment of the ma tter before it, the Panel will solely address 
the claims necessary to resolve the matter at issue between the parties.76  The Panel will take into 
account the arguments presented by the parties and third parties in their various written submissions 
and oral statements in the course of the proceedings. 
2. Interpretation of the relevant rules of the agreements 
7.12 In its objective assessment of the matter before it,  the Panel is called upon to clarify the scope 
of some provisions of the covered agreements cited by  the parties, and in particular of the Agreement 
on Safeguards and the GATT 1994.  In this connection,  Article 3.2 of the DSU provides that panels 
should clarify the existing provisions of the covere d agreements "in accordance with customary rules 
of interpretation of public interna tional law".  As the Appellate Body has noted, these customary rules 
of interpretation are part of customary general inte rnational law and are codified in Articles 31 and 32 
of the Vienna Convention on the La w of Treaties (Vienna Convention).77 
7.13 Article 31.1 of the Vienna Convention provides th at:  "a treaty shall be interpreted in good 
faith in accordance with the ordinary  meaning to be given to the terms of the treaty in their context 
and in the light of its object and purpose."  In acco rdance with Article 31.2 of the Vienna Convention, 
the context for the purposes of the interpretation of  a treaty comprises the text of the agreement 
concerned, including its preamble and annexes. 
7.14 Article 32 of the Vienna Convention provides that recourse may be had to supplementary 
means of interpretation, including the preparatory work of the treaty and the circumstances of its 
conclusion, in order to confirm the meaning resu lting from the application of Article 31, or to 
                                                      
72 Preliminary Resolution, Ex hibit CEGH-5, paragraph 23. 
73 Definitive Resolution, Exhibit CEGH-9, paragraph 17. 
74 See Article 4 of the Regulations of  Law 1-02 , Exhibit RDO-11.  This is confirmed by the language 
used in the technical reports.  For example, when examin ing the factors that would de monstrate the existence of 
a causal link between the increase in imports and the injury to the domestic industry, the DEI states in its Final Technical Report that "it analysed [t hese elements] in order to enable th e Plenary of the Commission to decide 
whether or not it is appropriate to apply a definitive safeguard measure".  Final Technical Report, 
Exhibit CEGH-10, p. 91. 
75 Panel reports, Argentina – Preserved Peaches , paragraph 7.6;  and Argentina – Footwear (EC) , 
paragraph 8.128. 
76 Appellate Body Report, US – Wool Shirts and Blouses , pp. 17-20. 
77 Appellate Body Report, US – Gasoline , pp. 16-18.  See also, for exam ple, Appellate Body Report, 
India – Patents (US) , paragraph 46. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 22   
  determine the meaning when the interpretation acco rding to Article 31 leaves the meaning ambiguous 
or obscure, or leads to a result which is  manifestly absurd or unreasonable. 
7.15 Article XVI of the Marrakesh Agreement Establishing the World Trade Organization 
(WTO Agreement) provides that the legal texts of  the WTO are equally authentic in the English, 
French and Spanish language versions.
78  Accordingly, and in accordance with Article 33 of the 
Vienna Convention, in case of discrepancy between th e language contained in the text of each of the 
different versions, the Panel must seek the meaning which simultaneously gives effect to all the terms 
of the treaty as used in each of the authentic languages.79 
3. Burden of proof 
7.16 Although the DSU does not contain any express pr ovision governing the burden of proof, by 
application of the general principles of law the WTO dispute settlement system has traditionally 
recognised that the burden of proof lies with the party asserting a fact, whether that party be the 
complainant or the defendant.80  Accordingly, in a proceeding the burden of proving that the 
impugned measure is inconsistent with the relevant  provisions of covered agreements initially lies 
with the complainant.  Once the complainant has made a prima facie  case for such inconsistency, the 
burden shifts to the defendant, who must in turn rebut the alleged inconsistency.81  A prima facie  case 
is one which, in the absence of effective refuta tion by the defending party, requires a panel, as a 
matter of law, to rule in favour of the complaining party.82  In the words of the Appellate Body: 
As a general matter, the burden of proof rests upon the complaining Member.  That 
Member must make out a prima facie  case by presenting sufficient evidence to raise a 
presumption in favour of its claim.  If the complaining Member succeeds, the 
responding Member may then seek to rebut this presumption.  Therefore, under the usual allocation of the burden of proof,  a responding Member's measure will be 
treated as WTO-consistent, until sufficien t evidence is presented to prove the 
contrary.
83 
7.17 The Appellate Body has added in this connec tion that precisely how much and precisely what 
kind of evidence will be required for the complain ing party to establish its case will necessary vary 
from measure to measure, provision to provision, and case to case.84  In any case, it should be borne in 
mind that, in the context of the WTO dispute settlement system: 
A prima facie  case must be based on "evidence and legal argument" put forward by 
the complaining party in relation to each  of the elements of the claim.  A complaining 
party may not simply submit evidence and expect the panel to divine from it a claim 
                                                      
78 See also Explanatory Note to paragraph 2(c)(i) of the GATT 1994. 
79 See, for example, Appellate Body Reports, Chile – Price Band System , paragraph 271;  EC – Bed 
Linen (Article 21.5 – India),  footnote 153 to paragraph 123;  US – Softwood Lumber IV , footnote 50 to 
paragraph 59;  EC – Tariff Preferences , paragraph 147;  and US – Upland Cotton , footnote 510 to 
paragraph 424. 
80 Appellate Body Report, US – Wool Shirts and Blouses,  pp. 12-17. 
81 Appellate Body Report, EC – Hormones , paragraph 98. 
82 Appellate Body Report, EC – Hormones , paragraph 104. 
83 Appellate Body Report, Canada – Dairy (Article 21.5 – New Zealand and US II), paragraph 66 
(italics in the original). 
84 Appellate Body Report, US – Wool Shirts and Blouses,  p. 14.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 23 
  
  of WTO-inconsistency.  Nor may a compla ining party simply allege facts without 
relating them to its legal arguments.
85 
7.18 In the matter before us, and by application of the foregoing criteria, it is up to the 
complainants to make out a prima facie  case for the violations of the provisions of the WTO covered 
agreements they have invoked;  if the complainants succeed in making a prima facie case for their 
claims, it will then be up to the Dominican Republic to rebut them. 
4. Provisional measure 
7.19 The measures impugned by the complainants incl ude the provisional measure which is no 
longer in force at this date.  The co mplainants argue that the panel in Chile – Price Band System  
stated that Article 19.1 of the DSU allows a panel to make findings  regarding an expired provisional 
safeguard measure, if such findings are necessary to secu re a positive solution to the dispute.  In that 
same case, however, the panel concluded that it would not formulate recommendations  with regard to 
the expired measure.  In the complainants' view, in  the present dispute the Panel should make findings 
on the provisional measure because that will help to  secure a positive solution to the dispute within 
the meaning of Article 3.7 of the DSU.  They note that the Panel's findings on the provisional measure 
could serve as a basis for private operators to brin g actions before the Dominican Republic authorities 
which could enable them to recover the duties wrongl y paid through the application of the provisional 
safeguard.86 
7.20 The Dominican Republic argues that, to secure a positive solution to the dispute, there is no 
need for the Panel to issue findings on the provision al measure that was retroactively replaced by the 
definitive measure.87  The Dominican Republic points out that the panel in Chile – Price Band System  
stated that a panel may make findings on an expi red provisional measure only if such findings are 
necessary to secure a positive soluti on to the dispute.  The Dominican Republic contends that in the 
present case it does not understand how making findi ngs on the provisional measure would contribute 
to a positive solution to the dispute.88 
7.21 The Panel notes that the impugned provisional measure was in force until 17 October 2010.  
As from 18 October it was replaced by the definitive me asure.  During the period of application of the 
provisional measure, the customs authorities of the Dominican Republic required payment of the 38 per cent duty in accordance with the system co mmonly applicable to the collection of customs 
duties, without allowing the possibility of posting bonds or other types of guarantee.
89  This means 
that the provisional measure was in force when Costa Rica and Guatemala each separately requested 
the holding of consultations with the Dominican Re public in the present case (15 October 2010), but 
not when Honduras and El Salvador each separatel y requested consultations (on 18 October and 
19 October, respectively).  The impugned measure w as not in force when Costa Rica and Guatemala 
(on 15 December 2010) or when Honduras and El Salvador (on 20 December 2010) each separately 
                                                      
85 Appellate Body Report, US – Gambling , paragraph 140 (italics in the original;  footnotes not 
reproduced). 
86 Complainants, reply to Panel question No. 37. 
87 Dominican Republic, first written submission, paragraphs 410, 413-415 and 435. 
88 The Dominican Republic points out that the panel in Guatemala – Cement II  found that since it had 
already made findings that gave rise to a recommendati on concerning the totality of the definitive measure, it 
did not consider it necessary to further address claims concerning the provisional meas ure that could only result 
in a ruling concerning only part of the definitive measur e.  Dominican Republic, reply to Panel question No. 38. 
89 Complainants, reply to Panel question No. 188;  Dominican Republic, comments on the 
complainants' reply to Panel question No. 188. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 24   
  requested the DSB to establish a panel to examine the dispute.  Nor, therefore, was the impugned 
provisional measure in force at the time when the DSB established the Panel and its terms of reference 
(7 October 2011). 
7.22 The Panel is mindful of the fact that there is nothing in the WTO agreements to prevent a 
panel from issuing findings regardi ng expired provisional safeguard measures insofar as such findings 
are necessary to secure a pos itive solution to the dispute.
90  In the present case, the Panel notes that 
each of the principal claims put forward by the comp lainants in their request for the establishment of 
the panel with respect to the definitive measure w as also put forward with respect to the provisional 
measure.  In the case of those claims, insofar as the complainants succeed in making the case that the 
impugned measures are inconsistent with any of th e provisions of the covered agreements, that 
finding would affect both the impugned definitive measu re and the provisional measure.  In that case, 
it would not in principle be necessary for the Pane l to issue separate findings regarding the expired 
provisional measure;  any such findings would not be necessary for helping to secure a positive 
solution to the dispute for the parties. 
B. WHETHER ARTICLE XIX  OF THE GATT  1994  AND THE AGREEMENT ON SAFEGUARDS ARE 
APPLICABLE TO THE PRESENT DISPUTE  
1. Main arguments of the parties 
(a) Dominican Republic 
7.23 The Dominican Republic affirms that, in the exercise of the functions provided for in 
Article 11 of the DSU, the Panel should rule on whether or not the covered agreements which the 
complainants claim to have been breached  are applicable to the present dispute.91  In the opinion of 
the Dominican Republic, for the Panel to be able to  assess the consistency or  inconsistency of the 
impugned measures with the specific provisions invoke d by the complainants, it must first determine 
that the measures in question fall within the scope  of the provisions invoked by the complainants.92 
7.24 The Dominican Republic argues in this connection that the provisions invoked by the 
complainants, more specifically Article XIX of  the GATT 1994 and the Agreement on Safeguards, 
are not applicable to the present dispute as the impugned measures are not covered by those rules.93  
Accordingly, in its view the dispute raised by the co mplainants is devoid of purpose, at least insofar as 
those rules are concerned.94  The Dominican Republic adds that the applicability of the provisions 
invoked by the complainants depends on objective cr iteria set out in the rules themselves and based 
on the content of the measures at issue, and is no t determined by subjective criteria such as the 
classification of the measures under domestic law, the name given to the various instruments in the domestic legislation of each WTO Member, or their form or nomenclature, th e lawmakers' intentions 
or the statements made by the Dominican authorities.
95 
                                                      
90 See, for example, panel report, Chile – Price Band System , paragraphs 7.112-7.115. 
91 Dominican Republic, request for a preliminary ruling, paragraphs 15-25. 
92 Dominican Republic, request for a preliminary ruling, paragraph 24.  See also, Dominican Republic, 
opening statement at the first meeting of the Panel, paragraph 3. 
93 Dominican Republic, request for a preliminary ruling, paragraphs 25 and 35. 
94 Dominican Republic, request for a preliminary ruling, paragraphs 1, 14, 26, 27 and 55. 
95 Dominican Republic, opening statem ent at the first meeting of the Pa nel, paragraphs 6-12.  See also, 
Dominican Republic, reply to Panel questions Nos. 31 and 32;  second written submission, paragraph 5.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 25 
  
  7.25 The Dominican Republic asserts that Article XIX:1(a) of the GATT 1994 has two parts.  The 
first part establishes certain conditions that must be  fulfilled for a WTO Member to be able to adopt 
the course of action described in the second part.  In the view of the Dominican Republic, if a 
Member does not take the course of action provided fo r in the second part of Article XIX:1(a) of the 
GATT 1994 - that is to say, if it does not suspend in w hole or in part the obligation incurred in respect 
of such product or withdraw or modify the conces sion - it is not legally bound to fulfil the conditions 
set out in the opening part of the provision, nor to satisfy the disciplines and procedural requirements 
contained in the rest of Article XIX of the GATT 1994.
96 
7.26 The Dominican Republic also contends that the wo rd "obligation" used in Article XIX of the 
GATT 1994 is confined to:  (i) the tariff concessions  and the obligations relating to such concessions 
in accordance with Article II:1 of the GATT 1994;  and (ii) the elimination or reduction of 
quantitative restrictions pursuant to Article XI of  the GATT 1994.  Accordingly, in its opinion 
Article XIX of the GATT 1994 and the Agreement on Safeguards only cover those measures which 
suspend, withdraw or modify tariff concessions or obligations relating to such concessions or which 
impose quantitative restrictions.97 
7.27 The Dominican Republic adds that, even assu ming that other provisions of the GATT 1994 
could be included in the term "obligation" of Article  XIX, which it denies, "this could not in any way 
include GATT Article I establishing the most-favoured-nation principle (along with 
GATT Article XIII)".98  This stems from:  (i) the text of Ar ticle 2.2 of the Agreement on Safeguards, 
according to which safeguards should be applied in a non-discriminatory manner, so that the 
interpretation whereby the term "obligations" in  Article XIX, second sentence, could refer to 
GATT Article I:1 would lead to a conflict betw een GATT Article XIX and Article 2.2 of the 
Agreement on Safeguards, contrary to the principle of  harmonious interpretation;  (ii) the fact that 
Article 9.1 of the Agreement on Safeguards estab lishes a mandatory exemption from the application 
of a safeguard measure for certain countries by virt ue of special and differential treatment, but does 
not authorize the "suspension" of GATT Article I:1 within the meaning of GATT Article XIX;  
(iii) the text of the Ministerial Declaration la unching the Uruguay Round, wh ich would suggest that 
the term "obligation" in Article XIX does not re fer to GATT Article I, and the general negotiating 
history of Article XIX and the Agreement on Safegua rds, as well as the practice of the Contracting 
Parties to the GATT 1947 showing a rejection of discriminatory or selective safeguard measures;  
(iv) the fact that the obligation  that may be suspended in accordance with the last part of 
Article XIX:1(a) of the GATT 1994 refers to the oblig ation which, according to the first part of the 
Article, has resulted in the increase in imports  which has caused a serious injury, and the 
most-favoured-nation principle is not capable of caus ing such an increase;  (v) the fact that the 
application of Article 9.1 of the Agreement on Safeguards does not qualify a specific measure as a 
safeguard measure in accordance with Article 1 of the Agreement on Safeguards, but rather 
presupposes the existence of a safeguard;  and (vi) that  to consider that a safeguard measure within the 
meaning of GATT Article XIX may consist in the su spension of GATT Article I:1 would lead to an 
absurd result, since by virtue of Articles 2.2 an d 9.1 of the Agreement on Safeguards read together, 
the sole content of such a measure would be th e exclusion of certain countries from its scope.99 
                                                      
96 Dominican Republic, opening statem ent at the first meeting of the Panel, paragraphs 21-22.  See 
also, request for a preliminary ruling, paragraph 38;  reply to Panel questions Nos. 41, 61 and 172. 
97 Dominican Republic, reply to Panel question No. 60. 
98 Ibid. 
99 Dominican Republic, reply to Panel questions Nos. 60-61;  second written submission, 
paragraphs 9-13.  See also, Dominican Republic, opening statement at the first meeting of the Panel, WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 26   
  7.28 The Dominican Republic contends that the pr ovisional measure and the definitive measure 
consisted in the adoption of a "38 per cent [ ad valorem ] tariff" on imports of tubular fabric and 
polypropylene bags, which was progressively reduced.  These measures constituted neither a 
surcharge, nor a second tariff, nor an additional or alternative tariff, but rather an increase in the 
MFN tariff, in accordance with Article 73 of Law 1-02 , replacing the  previously applicable 
MFN tariff.  At no time did these measures violate the Dominican Republic's obligation under Article II of the GATT 1994, through its schedule of concessions, not to  impose tariffs above 
40 per cent ad valorem  on the products in question;  nor did the measures result in duties other than 
ordinary customs duties, and therefore they di d not suspend obligations under Article II:1(b), 
second sentence, of the GATT 1994.  Nor did they result in a restriction of any other kind on imports of tubular fabric or polypropylene bags, such as qu antitative restrictions, or suspend in whole or in 
part any other obligation incurred by the Domi nican Republic with respect to those products.
100 
7.29 The Dominican Republic affirms that the complainants knew before the adoption of the 
impugned measures that they would not exceed the bound tariff and that therefore Article XIX of the GATT 1994 would not be applicable.  A lthough when adopting these measures the 
Dominican Republic decided to adhere to the bur densome requirements of Article XIX of the 
GATT 1994 and the Agreement on Safeguards, it did not have any obligation to do so.
101 
7.30 In the view of the Dominican Republic, the f act that Article XIX of the GATT 1994 is not 
applicable to the present dispute also results from th e Article's object and purpose, which are to enable 
a Member temporarily to rebalance the level of its concessions when faced with specific unforeseen developments.  The impugned measures did not affect  the level of tariff concessions accepted by the 
Dominican Republic in the WTO.  Its proposed interpretation is also  supported by other provisions of 
the Agreement on Safeguards, such as Articles 11.1(c)  and 8.1.  The Dominican Republic affirms that 
the negotiating history of Article XIX of the GA TT 1994 and the Agreement on Safeguards confirms 
that these provisions only apply to measures invol ving the suspension of an  obligation under the 
GATT 1994 or the withdrawal or modification of a c oncession.  It argues that the interpretation put 
forward by the complainants would affect the "inhe rent and essential flexibility of the WTO system of 
tariff concessions", under which Members may freely raise their tariffs up to a level below the bound 
rate.
102 
7.31 The Dominican Republic affirms that the impugned measures "are safegua rd measures within 
the meaning of Law 1-02" and were adopted in comp liance with this domestic legislation, Article 73 
of which authorizes increasing tariffs without re ferring to the suspension of obligations or a 
withdrawal or modification of concessions within th e meaning of the GATT 1994.  In its opinion, "not 
                                                                                                                                                                     
paragraphs 50-52;  reply to Panel question No. 174;  opening statement at the second meeting of the Panel, 
paragraphs 16-21. 
100 Dominican Republic, request for a preliminary ru ling, paragraphs 30, 41-43 and 46;  first written 
submission, paragraphs 39-41;  opening statement at the fi rst meeting of the Panel, paragraphs 4 and 45-48.  See 
also, second written submission, paragraphs 15-25;  opening statement at the second meeting of the Panel, 
paragraphs 22-30;  reply to Panel questions Nos. 33 and 180-183;  comments on the complainants' reply to the Panel questions, paragraphs 2-10. 
101 Dominican Republic, opening statement at the first meeting of the Panel, paragraphs 16-18 and 54;  
closing statement at the first meeting of the Panel, paragraphs 7 and 14-15;  reply to Panel questions Nos. 49 and 51. 
102 Dominican Republic, request for a preliminary ruling, paragraphs 44 (citing the Appellate Body 
Report in Argentina – Footwear (EC) , paragraph 94) and 45;  opening stat ement at the first meeting of the 
Panel, paragraphs 28-32;  closing statement at the second  meeting of the Panel, paragraphs 5-7;  reply to Panel 
questions Nos. 41, 68 and 70.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 27 
  
  every safeguard adopted under Law 1-02, constitut es a safeguard measure within the meaning of 
Article XIX of GATT and the Agreement on Safeguards".
103 
7.32 From the foregoing the Dominican Republic conc ludes that the course of action that was 
adopted through the impugned measures does not constitu te any of the actions covered by Article XIX 
of the GATT 1994.  Given that the impugned measures are not those covered by Article XIX of the 
GATT 1994, pursuant to Article 1 of the Agreemen t on Safeguards the rules established in that 
Agreement are likewise inapplicable.  Lastly, the Dominican Republic adds that the investigation 
leading to the adoption of the impugned measures is  likewise not subject to Article XIX of the 
GATT 1994 or the Agreement on Safeguards.104 
(b) Complainants 
7.33 The complainants reject the Dominican Republic 's arguments and request the Panel to find 
that the impugned measures are indeed subject to examination under Article XIX of the GATT 1994 
and the Agreement on Safeguards.105 
7.34 The complainants affirm that the impugned m easures should be considered as safeguards on 
the basis of a harmonious reading of Article XIX of the GATT 1994 with the Agreement on Safeguards and on the design, architecture and stru cture of the measures themselves, which claim to 
be a response to the need to remedy ser ious injury and facilitate adjustment.
106 
7.35 The complainants assert that the impugned measures suspend obligations of the 
Dominican Republic under Articles I:1 and II:1(b), second sentence, of the GATT 1994 relating to the 
products in question.  The complainants reject th e Dominican Republic's argum ent to the effect that 
the term obligation  in Article XIX of the GATT 1994 refers solely to obligations relating to tariff 
concessions under Article II:1 and the elimination or reduction of quantitative restrictions under 
Article XI of the GATT 1994.  In their view, the impugned measures involve the suspension of the 
most-favoured-nation principle provided for in Article I:1 of the GATT 1994, since they selectively 
exclude imports from specific origins (namely, Colombia, Indonesia, Mexico and Panama) under cover of Article 9.1 of the Agre ement on Safeguards, thus granti ng those imports an advantage, 
favour, privilege or immunity not accorded immediately and unconditionally to the imports of the like product from the other WTO Members.  The compla inants affirm that the impugned measures also 
suspend the application of Article II:1(b), second sentence, of the GATT 1994 insofar as they impose 
a tariff surcharge other than ordinary customs duties that is not recorded in the Dominican Republic's 
schedule of concessions.
107 
                                                      
103 Dominican Republic, reply to Panel questions Nos.  31 and 32.  See also, second written submission, 
paragraph 4;  opening statement at the first meeting of the Panel, paragraphs 13-15;  closing statement at the first meeting of the Panel, paragraphs 4 and 6-7;  reply to Panel questions Nos. 46, 48, 49, 176 and 186. 
104 Dominican Republic, request for a preliminary ruling, paragraphs 39 and 47-48;  opening statement 
at the first meeting of the Panel, paragraphs 39-44;  reply to Panel question No. 62.  See also, second written 
submission, paragraphs 26-48. 
105 Complainants, reply to the Dominican Republic's request for a preliminary ruling, paragraphs 4 
and 7. 
106 Complainants, reply to Panel questions Nos. 39, 40, 41, 54, 55 and 172.  See also, opening statement 
at the second meeting of the Panel, paragraph 9. 
107 Complainants, reply to the Dominican Republic's request for a preliminary ruling, paragraphs 42(v) 
and 109-111 and 122-123;  opening statement at the first meeting of the Panel, paragraphs 17 and 133-147;  
reply to Panel questions Nos. 26, 27, 39, 40, 41, 45 , 55, 72 and 73.  See also, second written submission, WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 28   
  7.36 The complainants also point out that, in accord ance with Article 11.1(a) of the Agreement on 
Safeguards, the coverage of Article XIX of  the GATT 1994 and the Agreement on Safeguards 
includes not only measures which a Member "takes" but also all actions undertaken by a Member 
with a view to the adoption of safeguard measures,  regardless of whether such measures are taken in 
the form of a suspension of obligations or the withdrawal or modification of tariff concessions.
108 
7.37 Alternatively, and even assuming that the im pugned measures do not result in the suspension 
of any obligation under the GATT 1994, the complain ants add that they would still be safeguards 
within the meaning of Article  XIX for the following reasons:109  (i) given that the purpose of the 
WTO safeguard mechanism is to provide an instrume nt for preventing or remedying a serious injury 
to the domestic industry in certain circumstances and for facilitating adjustment, any measure that 
goes beyond what is necessary for that objective, in  extent or temporal scope, infringes Articles 5 and 
7 of the Agreement on Safeguards even if the measure is not inconsistent with  the general obligations 
of the GATT 1994110;  (ii) the use of the words shall be free  in Article XIX:1(a) of the GATT 1994 
implies that, in the circumstances described in that  provision, a Member has the faculty to suspend a 
WTO concession or obligation but may also choose to  impose a measure to remedy serious injury that 
does not suspend a concession or obligation111;  (iii) after having initiat ed, conducted and concluded a 
safeguard investigation in accordance with Ar ticle XIX of the GATT 1994 and the Agreement on 
Safeguards, and having adopted measures as a resu lt of that investigation, the Dominican Republic 
cannot try to avoid its obligations under those pr ovisions on the grounds that the measures are not 
safeguard measures112;  (iv) if a safeguard measure had to c onsist in the suspension of a concession or 
obligation, at the time when, as a result of its progr essive liberalization in accordance with Article 7.4 
of the Agreement on Safeguards, the measure came to  be lower than the bound tariff, it would cease 
to be a safeguard and the Member applying it could suspend its liberalization or refuse to continue 
granting any compensation113;  (v) in accordance with Article 3.1 of the Agreement on Safeguards, if 
a Member conducts a safeguard investigation, the ensuing measure will have to be considered a 
safeguard regardless of whether it is below or above the bound tariff114;  and (vi) if the interpretation 
                                                                                                                                                                     
paragraphs 14-33 and 256-307;  opening statement at the second meeting of the Panel, paragraphs 11-21 and 
77-80;  closing statement at the second meeting of the Panel, paragraphs 5-19;  reply to Panel questions Nos. 53, 
55, 60, 61, 76, 174-175, 180-181 and 185-186;  comments on the Dominican Republic's reply to Panel questions Nos. 174 and 181-182. 
108 Complainants, reply to the Dominican Republic's request for a preliminary ruling, 
paragraphs 42 (iii) and 84-91.  See also, reply to th e Dominican Republic's request for a preliminary ruling, 
paragraph 86;  second written submission, paragrap hs 34-38;  reply to Panel question No. 172. 
109 Complainants, reply to the Dominican Republic's request for a preliminary ruling, 
paragraphs 42 (iv), 92-93 and 108;  opening statement at the first meeting of the Panel, paragraphs 10-11;  reply to Panel question No. 41. 
110 Complainants, opening statement at the first meeting of the Panel, paragraphs 18-21.  See also, reply 
to the Dominican Republic's request for a preliminary ru ling, paragraphs 102-104;  second written submission, 
paragraphs 42-46;  reply to Panel question No. 172. 
111 Complainants, reply to the Dominican Republic's re quest for a preliminary ruling, paragraphs 94-96.  
See also, reply to Panel questions Nos. 41 and 74;  second written submission, paragraph 41. 
112 Complainants, reply to the Dominican Republic's request for a preliminary ruling, 
paragraphs 97-104. 
113 Complainants, reply to the Dominican Republic's request for a preliminary ruling, 
paragraphs 105-106;  opening statement at the first meeting of the Panel, paragraph 27. 
114 Complainants, reply to the Dominican Republic's request for a preliminary ruling, paragraph 107.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 29 
  
  proposed by the Dominican Republic were to be adopted, the impugned measures would escape 
multilateral control by the WTO.
115 
7.38 In the complainants' view, the impugned measures are the result of an investigation that was 
initiated, conducted and concluded by the Domi nican Republic under Article XIX of the GATT 1994 
and the Agreement on Safeguards and its domestic legislation on safeguards, that is to say, Law 1-02  
and the Regulations of Law 1-02 .  As is clear from the text itself of the Commission's Initial 
Resolution, Preliminary Resolution and Definitive R esolution, in the investigation that led to the 
imposition of the impugned measures and in the decisions adopted (such as the decision to exclude 
certain countries from the application of the measur es and the establishment of a timetable for their 
progressive liberalization), the competent authority of the Dominican Republic invoked as their basis the multilateral rules and domestic legislation on safeguards and not any other rules, such as for 
example Law 146-00 , the domestic legislation governing the imposition of customs tariffs.  This is 
allegedly confirmed by statements and declarati ons made by the Dominican Republic, such as the 
press release issued at the conclusion of the inve stigation and the explanations provided in the 
WTO Committee on Safeguards.
116 
7.39 The complainants argue that both the impugned measures and other related acts (such as the 
initiation of the investigation and the Resolution of April 2011 on the gradual removal of the 
definitive measure) were notified by the Domini can Republic to the WTO Committee on Safeguards 
under the multilateral procedures provided for safeguard  measures applied pursuant to Article XIX of 
the GATT 1994 and the Agreement on Safeguards.  In none of these notifications did the 
Dominican Republic indicate that the notified measures were not safeguards;  on the contrary, the Dominican Republic referred to the notified meas ures respectively as the "provisional safeguard 
measure" and the "definitive safeguard measure".
117 
7.40 The complainants add that, even if the Panel were to conclude that Article XIX of the 
GATT 1994 and the Agreement on Safeguards are not applicable to the impugned measures, it would 
still have to consider the claims put forward by the complainants with regard to other aspects, such as 
those relating to the investigation in itself, th e notifications to the WTO Committee on Safeguards, 
and the lack of consultations under the Agreement on Safeguards, as well as the alternative claims 
under Articles I:1 and II:1(b), second sentence, of the GATT 1994.118 
2. Main arguments of the third parties 
(a) Colombia 
7.41 Colombia contends that the use of the words "shall be free" in Article XIX of the GATT 1994 
means that Members who are in the circumstances described in that Article have the "faculty" to 
                                                      
115 Complainants, reply to the Dominican Republic's request for a preliminary ruling, 
paragraphs 97-101;  second written submission, paragraphs 44-46. 
116 Complainants, reply to the Dominican Republic's request for a preliminary ruling, paragraphs 42(i), 
43 and 48-73;  opening statement at the first meeting of the Panel, paragraphs 13-15;  reply to Panel 
question No. 40. 
117 Complainants, reply to the Dominican Republic's re quest for a preliminary ruling, paragraphs 42(ii) 
and 75-83;  opening statement at the first meeting of the Panel, paragraph 15.  See also, reply to Panel 
questions Nos. 45 and 53. 
118 Complainants, reply to the Dominican Republic's request for a preliminary ruling, paragraphs 6 and 
112-123;  opening statement at the first meeting of the Panel, paragraphs 10-11 and 132.  See also, reply to 
Panel question No. 56;  opening statement at the second meeting of the Panel, paragraphs 22-26. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 30   
  suspend in whole or in part a concession incurred with  respect to a product, or to withdraw or modify 
it.  Regardless of whether or not a safeguard i nvestigation ends in the suspension of concessions 
granted under Article II of the GATT 1994, the pro cedure will be governed by the provisions of 
Article XIX of the GATT 1994 and the Agreement on  Safeguards.  Colombia also argues that the 
preamble to the Agreement on Safeguards reflects the intention of the WTO Members to establish 
multilateral control over safeguard measures and to  limit the measures that escape such control.  
Therefore, if the Member applying a measure it self initially describes it as a safeguard, the WTO and 
the other Members have to consider it as such.  On this basis, Colombia suggests that Article XIX of 
the GATT 1994 and the Agreement on Safeguards are a pplicable to the impugned measures, adding 
that the Panel should rule on this point before  going any further with its substantive analysis.
119 
7.42 Lastly, Colombia suggests that the word "obligation" in Article XIX of the GATT 1994 
should be construed as referring to any obligatio n under the GATT 1994 other than those established 
in Article I and Article II:1(a).120 
(b) United States 
7.43 The United States suggests that Article XIX:1(a) of the GATT 1994 does not contain any 
definition or description of the word "obligation" ot her than that they are obligations incurred "under 
this Agreement" (the GATT 1994).  The obligations  include tariff concessions under Article II:1 of 
the GATT 1994, as well as the obligation relating to qua ntitative restrictions in Article XI:1 of the 
GATT 1994.  In the view of the United States, the wo rd "obligation" could also include the obligation 
under Article I:1 of the GATT 1994, as otherwise Ar ticle 2.2 of the Agreem ent on Safeguards would 
be superfluous and would create a conflict between Article 9.1 of the Agreement on Safeguards and 
the most-favoured-nation principle in Article I:1 of the GATT 1994.121 
7.44 The United States adds that, in the circumst ances of the present dispute, if the impugned 
measures did not suspend obligations under the GATT 199 4, it is not clear that they would necessarily 
be safeguards.  In any case, the United States stre sses that the Dominican Republic appears to have 
considered the measures to be safeguards, for example when notifying them to the WTO and by 
invoking Article 9.1 of the Agreement on Safegua rds to exclude certain countries from their 
application.  The exclusion of those countries means that the Dominican Republic suspended its 
obligations contained in Article I:1 of the GATT 1994.122 
(c) Nicaragua 
7.45 Nicaragua rejects the Dominican Republic's argument that the impugned measures are not 
subject to the obligations of Article XIX of th e GATT 1994 and the Agreement on Safeguards.  In 
Nicaragua's opinion, this argument is inconsiste nt with those provisions and impairs the rights 
accruing to Members under the WTO Agreement.123 
                                                      
119 Colombia, third party written submission, paragraphs 15-22.  See also, reply to Panel 
question No. 23. 
120 Colombia, reply to Panel question No. 2, paragraph 15.  See also, Ibid. paragraphs 2-16. 
121 United States, reply to Panel question No. 2, paragraphs 6-9. 
122 United States, reply to Panel question No. 3.  See also, United States, third party statement, 
paragraphs 4-6;  reply to Panel question No. 25. 
123 Nicaragua, third party written submission, paragraphs 7-9.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 31 
  
  (d) European Union 
7.46 The European Union contends that the determin ation as to whether a measure is a safeguard 
provided for in Article XIX of the GATT 1994 is an objective one that must be made taking into 
consideration the structure and design of each measure.  The subjective purpose of the Member 
applying the measure may offer a useful indication,  but will never be dispositive since otherwise the 
applicability of the Agreement on Safeguards would be  at the discretion of the Member applying the 
measure.  In the opinion of the European Union, the circumstance that the measures in question are 
aimed at preventing or remedying injury caused by an increase in imports is a necessary but not alone 
a sufficient condition for determining the a pplicability of the Agreement on Safeguards.
124 
7.47 The European Union suggests that a distinc tion should be drawn between the question of 
whether a measure is a safeguard provided for in  Article XIX of the GATT 1994 and the question of 
whether a measure is consistent with the requirement s imposed by Article XIX.  If that distinction is 
not made, it would never be possible to determine wh ether a measure is inconsistent with Article XIX 
of the GATT 1994.  The European Union proposes that  a measure may be considered a safeguard of 
the kind provided for in Article XIX of the GATT 1994 when it combines the following two features:  
(i) it seeks to remedy injury caused by an increase in imports;  and (ii) it involves the suspension of an 
obligation or the withdrawal or modification of a concession under the GATT 1994.  In the view of 
the European Union, to deny the relevance of the second of these features would be to fail to 
recognize the specific function of Article XIX in th e context of the GATT 1994, namely, to authorize 
emergency measures that would otherwise be prohibited by the GATT 1994.125 
7.48 The European Union points out that its comments do not necessarily mean that the impugned 
measures fall outside the scope of the Agreem ent on Safeguards.  Firstly, because, as the 
complainants argue, the impugned measures entail the suspension of obligations incurred by the 
Dominican Republic under the GATT 1994, insofar as they do not apply to imports of like products 
originating in all WTO Members.  In this conne ction, the European Union asserts that one may 
deduce from the ordinary meaning of the wording of Article XIX:1(a) of the GATT 1994 that the 
word obligation  is not confined to tariff concessions  under Article II:1 nor the provision on 
quantitative restrictions under Article XI of the GATT 1994, but also includes the obligations of 
Article I:1.126  Secondly, because as the complainants also maintain, by the application of 
Article 11.1(a) of the Agreement on Safeguards, that  Agreement is not confined to safeguards which 
the Member has adopted but also applies to inv estigations initiated with a view to the possible 
imposition of a safeguard, even where subsequently such a measure is not im posed as a consequence 
of the investigation.  With regard to the second point, however, the European Union adds that if the 
Panel were to conclude that the impugned measur es are not covered by the Agreement on Safeguards 
(because they do not suspend any obligation unde r the GATT 1994), a finding that any of the 
procedural requirements is inconsistent with the Agreement on Safeguards could not lead the Panel to 
go on to conclude that the provisional measure or the definitive measure are therefore inconsistent 
with the Agreement on Safeguards.127 
                                                      
124 European Union, third party written submission, paragraphs 4 and 7. 
125 European Union, third party written submission, para graphs 8-9.  See also, reply to Panel questions 
Nos. 3 and 6. 
126 European Union, third party written submission, paragraph 15;  reply to Panel questions Nos. 2 
and 7. 
127 European Union, third party written submission, pa ragraphs 13-14;  reply to Panel question No. 7. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 32   
  7.49 On the other hand, the European Union disagr ees with the complainants' argument that the 
impugned measures also entail a suspension of Article II:1(b) of the GATT 1994;  in its opinion, the 
intention of the Dominican authorities was to increa se the rate of the applicable ordinary customs 
duty, and not to apply other duties or charges in addition to the ordinary customs duty.
128 
3. Assessment by the Panel 
(a) Introductory comment 
7.50 The question before this Panel concerning the a pplicability of the covered agreements may be 
described as follows:  Are the impugned measures in this case measures of the type provided for in 
Article XIX of the GATT 1994?  If the answer is yes,  by application of Article 1 of the Agreement on 
Safeguards, whereby "safeguard measures" shall be  understood to mean "those measures provided for 
in Article XIX of the GATT 1994", the impugned me asures will be considered safeguards for the 
purposes of Article XIX of the GATT 1994 and the Agreement on Safeguards.  In that case, both 
Article XIX of the GATT 1994 and the Agreement on Safeguards will be applicable to the present 
dispute. 
7.51 Before taking up the substantive analysis of the question, the Panel notes that an unusual 
situation arises in the present case. 
7.52 Firstly, the main argument cited by the compla inants to support their assertion concerning the 
applicability of Article XIX of the GATT 1994 and th e Agreement on Safeguards to this dispute is 
that the impugned measures constitute a suspension of obligations of the Dominican Republic under 
Articles I:1 and II:1(b), second sentence, of the GATT 1994. 
7.53 As reflected in the discussion between the parties and the views given by the third parties, the 
Panel notes at the outset that in none of the previ ous disputes raised in the WTO dispute settlement 
system have the parties alleged that the im pugned measures described as safeguards suspended 
obligations other than those contained in Article II or  Article XI of the GATT 1994.  This is reflected 
in the language used by the Appellate Body in its report in Argentina – Footwear (EC) : 
[I]t must always be remembered that safeguard measures result in the temporary 
suspension of concessions or withdrawal of obligations, such as those in Article II 
and Article XI of the GATT 1994, which are fundamental to the WTO Agreement .129 
7.54 Recognized authorities in this field also refer to  the fact that the safeguards provided for in 
GATT Article XIX allow Members to take action whic h would otherwise be incompatible with their 
obligations under GATT Articles II and XI, i.e. the levying of tariffs above the bound level and the 
imposition of quantitative restrictions.130 
7.55 The question of whether the invocation of the clause of GATT Article XIX allows a Member 
to escape the most-favoured-nation treatment obligation in GATT Article I, and in particular whether, 
under GATT Article XIX, safeguard measures must  be applied to imported products in a 
                                                      
128 European Union, third party written submission, paragraph 16. 
129 Appellate Body Report, Argentina – Footwear (EC) , paragraph 95 (italics in the original). 
130 See, for example, P. Van den Bossche, The Law and Policy of the World Trade Organization:  Text, 
Cases and Materials  (Cambridge University Press, 2008), p. 685;  O. Long, Law and its Limitations in the 
GATT Multilateral Trade System  (Martinus Nijhoff Publishers, 1985), pp. 57-58.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 33 
  
  non-discriminatory manner and regardless of their origin or may be applied selectively, has been 
extensively discussed by commentators.
131  Much of this work refers to the GATT situation prior to 
the entry into force of the Uruguay Round Agreements. 
7.56 Secondly, it also appears unusual that a Memb er should refuse that a measure which it has 
taken be described as a safeguard despite the fact th at the measure:  (i) was taken by the Member with 
the stated objective of remedying a situation of ser ious injury to the domestic industry brought about 
by an increase in imports;  (ii) was the result of a procedure based, inter alia , on the rules and 
procedures of Article XIX of the GATT 1994 and the Agreement on Safeguards;  and (iii) was 
notified as a safeguard measure by the Member taking it to the WTO Committee on Safeguards and 
under the procedures provided for in Article XIX of the GATT 1994 and the Agreement on Safeguards. 
7.57 In addition, the Panel notes as a matter of fact th at, in the present dispute, even at their highest 
the impugned measures were duties equivalent to 38 per cent ad valorem , below the level of 
40 per cent ad valorem  bound by the Dominican Republic for the two products in its schedule of 
concessions.  Additionally, the tariff applied by th e Dominican Republic prior to the imposition of the 
impugned measures, and which will re-enter into force as from 21 April 2012 when the impugned 
definitive measure expires, which is the equivalent respectively of 14 per cent ad valorem  for tubular 
fabric and 20 per cent ad valorem  for polypropylene bags, is significantly lower than the 40 per cent 
ad valorem  level bound by the Dominican Republic.  The circumstance that a Member applies a tariff 
lower than the binding in its schedule of concessi ons is not unusual.  In the present case, this 
circumstance meant that in practice, when adopting measures to remedy a possible situation of serious 
injury to the domestic industry caused by an incr ease in imports, the Dominican Republic did not see 
fit to withdraw or modify its tariff commitments with respect to the products in question under its 
schedule of concessions. 
7.58 In any case, the Panel notes that, in the light of  Article 11 of the DSU, its functions include 
making an objective assessment of the applicability of the provisi ons of the covered agreements 
invoked in the dispute.  The Panel agrees with the parties that the determination on applicability must 
be a prior step to the analysis of whether the impugned measures are consistent with the obligations 
contained in the cited provisions.
132 
7.59 In order to reach a conclusion on the applicab ility of the covered agre ements invoked, the 
Panel's starting point must be the text of the releva nt provisions, in the context of the terms of the 
treaty and taking into account the object and purpose of the agreements. 
7.60 Having taken the foregoing into account, the Pa nel will consider the complainants' argument 
that the impugned measures constitute a suspension of obligations of the Dominican Republic under 
Articles I:1 and II:1(b), second sentence, of the GATT 1994.133  The complainants have stated in this 
                                                      
131 See, for example, the account of the discussion on th is legal issue in J. H. Jackson, W. J. Davey and 
A. O. Sykes, Jr., Legal Problems of International Economic Relations  (West Publishing Co., 1995).  See also, 
J. H. Jackson, World Trade and the Law of GATT  (The Michie Company, 1969), pp. 564-565, Exhibit RDO-28. 
132 See, for example, complainants, reply to the Dominican Republic's request for a preliminary ruling, 
paragraph 33;  Dominican Republic, request for a preliminary ruling, paragraph 24.  See also, for example, Appellate Body Reports, China – Auto Parts , paragraph 139;  Canada – Autos , paragraph 151;  and US – 
Shrimp , paragraph 119. 
133 None of the parties has indicated that the impugne d measures constitute withdrawal or modification 
of a tariff concession incurred by the Dominican Republic by virtue of its obligations under Articles II:1(a) and 
II:1(b), first sentence, of the GATT 1994. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 34   
  connection that if the Panel were to conclude th at the impugned measures are safeguards because they 
involve the suspension of obligations of the Dominican Republic under the GATT 1994, they would 
not request additional findings concerning the ap plicability of Article XIX of the GATT 1994 and the 
Agreement on Safeguards.
134 
(b) Whether the impugned measures suspend obliga tions contained in Article I:1 of the 
GATT 1994 
7.61 The complainants assert that the impugned m easures suspend the most-favoured-nation 
treatment obligation in Article I of the GATT 1994, in that they selectively exclude imports from 
specific origins (namely, Colombia, Indonesia, Mexi co and Panama), thereby granting those imports 
an advantage, favour, privilege or immunity not accorded immediately and unconditionally to imports 
of like products from the other WTO Members.  The Dominican Republic replies that Article XIX of the GATT 1994 does not authorize suspending the obligation in Article I of the GATT 1994, but only 
permits the suspension of tariff concessions and ob ligations and the obligations relating to such 
concessions, under GATT Article II:1, and the prohi bition on imposing quantitative restrictions under 
GATT Article XI, so that even if they impugned me asures suspend the obligation contained in Article 
I this does not imply that they fall within GA TT Article XIX and the Agreement on Safeguards. 
7.62 Article I:1 of the GATT 1994 describes the oblig ation of most-favoured-nation treatment as 
follows: 
With respect to customs duties and charg es of any kind imposed on or in connection 
with importation or exportation or imposed on the international transfer of payments 
for imports or exports, and with respect to the method of levying such duties and 
charges, and with respect to all rules a nd formalities in connection with importation 
and exportation, and with respect to all matte rs referred to in pa ragraphs 2 and 4 of 
Article III, any advantage, favour, privilege or immunity granted by any contracting 
party to any product originating in or destin ed for any other country shall be accorded 
immediately and unconditionally to the like pr oduct originating in or destined for the 
territories of all other contracting parties.  (Supplementary note to the Article not 
reproduced.) 
7.63 Article XIX:1(a) of the GATT 1994 provides: 
If, as a result of unforeseen developments and of the effect of the obligations incurred 
by a contracting party under this Agreement, including tariff concessions , any 
product is being imported into the territory of  that contracting party in such increased 
quantities and under such conditions as to cause or threaten serious injury to domestic 
producers in that territory of like or directly competitive products, the contracting 
party shall be free, in respect of such product , and to the extent and for such time as 
may be necessary to prevent or remedy such injury, to suspend the obligation in 
whole or in part or to wit hdraw or modify the concession . (Without italics in the 
original.) 
7.64 Thus, the text of Article XIX:1(a) does not expressly limit the obligations of the GATT 1994 
that may be suspended by invoking that provision.  The paragraph contains two references to the word 
obligation .  First, it refers to the obligations incurred by a Member under the GATT 1994, including 
                                                      
134 Complainants, reply to Panel question No. 41.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 35 
  
  tariff concessions, which have  had the effect of increasing imports.  Second, it refers to the obligation 
in respect of the product in question which the Member  is authorized to suspend in whole or in part, 
including the possibility of withdrawing or modifyi ng the tariff concession.  The Panel agrees with the 
Dominican Republic that the language of  the Article suggests that the words obligation and 
concession  in the final part of the paragraph (" obligación " and " concesión " in Spanish and 
"engagement " and " concession " in French) refer to the words obligations  and concessions in the first 
part (" obligaciones " and " concesiones arancelarias " in Spanish and " engagements " and " concessions " 
in French).
135  This is suggested by the parallelism in the terms and the use of the word the in the final 
part of the paragraph in " the obligation" and " the concession".  Otherwise, and if there was no link 
between the two expressions, the last part of the para graph could have said "the  contracting party shall 
be free, in respect of such product … to suspend an obligation in whole or in part or to withdraw or 
modify a concession" . 
7.65 According to one of the first studies publis hed on the GATT legal system, the preparatory 
work of the GATT 1947 suggests that the most-f avoured-nation treatment was not among the GATT 
obligations that could be suspended by invoking the safeguard clause of Article XIX.  The author of 
this study, however, also stated that the expr ession "obligation incurred under the GATT" is as broad 
as the GATT itself.  In the author's words, while the preparatory work of the GATT suggests that the 
expression covers both tariff concessions and the prohibition on quantitative restrictions, "the 
language seems even broader".136 
7.66 Now, with the entry into force of the WTO Agreement the obligations contained in 
Article XIX of the GATT 1994 cannot be read in isola tion but rather always together with and in the 
context of the provisions of the Agreement on Safe guards.  As the Appellate Body has observed, 
unlike the earlier GATT system, the WTO Agreemen t constitutes a single instrument that was 
accepted by the WTO Members as a " single undertaking "137 (in Spanish, " todo único ", and in French, 
"engagement unique ").  Accordingly, the obligations under the WTO agreements are generally 
cumulative and Members must comply with all of them simultaneously.138  The Appellate Body has 
also noted that both the provisions of Article XIX of the GATT 1994 and those of the Agreement on Safeguards are part of one and the same treaty, the WTO Agreement.
139  As a result of the agreements 
reached during the Uruguay Round, both the GATT 1994 and the Agreement on Safeguards are part 
of Annex 1 of one and the same agreement (WTO Agreement).  Accordingly, Article XIX of the 
GATT 1994 and the Agreement on Safeguards are an inseparable package of rights and disciplines 
that must be considered simultaneously.140 
                                                      
135 Dominican Republic, reply to Panel question No. 61. 
136 J. H. Jackson, World Trade and the Law of GATT  (The Michie Company, 1969), p. 559. 
137 Appellate Body Report, Brazil – Desiccated Coconut , p. 14. 
138 Appellate Body Report, Korea – Dairy, paragraph 74. 
139 They entered into force as part of that treaty at the same time.  They apply equally and are equally 
binding on all WTO Members. … [Yet] a treaty interpreter mu st read all applicable provisions of a treaty in a 
way that gives meaning to all of them, harmoniously … an appropriate r eading of this "inseparable package of 
rights and disciplines" must, accordingl y, be one that gives meaning to all the relevant provisions of these two 
equally binding agreements. 
 
Appellate Body Report, Argentina – Footwear (EC), paragraph 81 (italics in the original). 
 
140 Appellate Body Reports, Brazil – Desiccated Coconut, p. 16 (quoting the Panel Report in Brazil – 
Desiccated Coconut , paragraph 227);  Korea – Dairy Products, paragraph 74;  and Argentina – Footwear (EC), 
paragraph 81.  The Appellate Body reached simila r conclusions with respect to the Agreement on WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 36   
  7.67 With regard to whether safeguard measu res must generally comply with the 
most-favoured-nation obligation in Article I of the GATT 1994, Article 2.2 of the Agreement on 
Safeguards provides that:  "Safeguard measures shall be applied to a product being imported 
irrespective of its source." 
7.68 In any case, it is an undisputed fact that both the provisional measure and the definitive 
measure exclude imports originating in Colomb ia, Indonesia, Mexico and Panama from their 
application and therefore result in more favourable treatment for those imports.  In the case of both 
measures, the Commission's Resolutions justify this  exclusion on the grounds of Article 9.1 of the 
Agreement on Safeguards and Article 72 of Law 1-02 , insofar as the countries mentioned are 
developing countries which together represent barely  1.21 per cent of the investigated imports.
141  
This means that the impugned measures were not a pplied to the relevant products being imported 
"irrespective of their source", but ra ther in fact excluded imports originating in four countries.  This 
aspect of the measures is inconsistent with the ge neral most-favoured-nation treatment provided for in 
Article I:1 of the GATT 1994, in that the Domini can Republic accorded products originating in these 
four countries an advantage, favour, privilege or  immunity without immediately and unconditionally 
extending it to like products originating in the terr itories of all other contracting parties.  The Panel 
notes in this respect that the Dominican Republic  has admitted that the exclusion of imports 
originating in Colombia, Indonesia, Mexico and Pana ma from the application of the measure "may be 
problematic".142 
7.69 The Dominican Republic has not put forward any argument to rebut the fact that the 
impugned measures are inconsistent with the general most-favoured-nation treatment of Article I:1 of 
the GATT 1994.  In its opinion, however, ev en if the measures suspended general 
most-favoured-nation treatment, this would not be  enough for the Panel to conclude that they 
constituted a suspension of obligations within the meaning of Article XIX:1(a) of the GATT 1994.  
The Dominican Republic asserts, among other arguments143, that interpreting the suspension of 
obligations in the final part of Article XIX:1(a) of the GATT 1994 as covering a suspension of the general most-favoured-nation obligation in Article XIX:1 of the GATT 1994 would lead to a conflict 
between Article XIX:1(a) of the GATT and the Ag reement on Safeguards, which expressly prohibits 
the discriminatory application of safeguards. 
                                                                                                                                                                     
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) 
and GATT Article VI in its Report in US -1916 Act .  In this last case the Appellate Body noted: 
 
Article VI of the GATT 1994 and the Anti-Dumping Agreement  are part of the same treaty, the 
WTO Agreement.   As its full title indicates, the Anti-Dumping Agreement  is an "Agreement on 
implementation of Article VI of the Genera l Agreement on Tariff s and Trade 1994".  
Accordingly, Article VI must be read in  conjunction with the provisions of the Anti-Dumping 
Agreement  … 
 
Appellate Body Report, US – 1916 Act , paragraph 114 (italics in the original). 
 
141 Although the preliminary and definitiv e Resolutions refer to Article 82 of Law 1-02 , in its written 
submissions the Dominican Republic refers to Article 72, which it says is the correct article.  In the case of the definitive Resolution issuing the final decision and imposing the impugned definitive measure, the Commission 
also cited the Regulations of Law 1-02.  Definitive Resolution, CEGH-9, paragraph 42. 
142 Dominican Republic, closing statement at the firs t meeting of the Panel, paragraph 17;  reply to 
Panel question No. 52. 
143 See paragraph 7.27 of this Report.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 37 
  
  7.70 The Panel is not convinced by this argumen t.  The Agreement on Safeguards expressly 
authorizes certain waivers, particularly under Article 9, of the general most-favoured-nation treatment 
and the requirement that safeguard measures shoul d not be applied in a discriminatory manner.  
Article 9.1 of the Agreement on Safeguards provides: 
Safeguard measures shall not be applied agai nst a product originating in a developing 
country Member as long as its share of imports of the product concerned in the 
importing Member does not exceed 3 per cent, provided that developing country 
Members with less than 3 per cent import share collectively account for not more 
than 9 per cent of total imports of the pr oduct concerned. (Footnote not reproduced.) 
7.71 The Dominican Republic has expressly invoked Ar ticle 9 of the Agreement on Safeguards as 
the legal justification under the WTO agreements  for excluding imports from Colombia, Indonesia, 
Mexico and Panama from the application of the impugned measures.
144 
7.72 Taking into account the foregoing, the Panel does not consider it correct to affirm that if 
Article XIX:1(a) of the GATT 1994 is interpreted to  include the possibility of suspending the general 
most-favoured-nation treatment obligation in Artic le I:1 of the GATT 1994, this would necessarily 
lead to a conflict between GATT Article XI X:1(a) and the Agreement on Safeguards. 
7.73 In conclusion, the Panel considers that the impugned measures have in fact meant a 
suspension of the most-favoured-nation treatment in Article I:1 of the GATT 1994 and therefore 
represent the suspension of an obligation incu rred by the Dominican Republic under GATT 1991 
within the meaning of Article XIX:1(a) of the GATT 1994. 
(c) Whether the impugned measures suspend obligations contained in Article II:1(b), 
second sentence, of the GATT 1994 
7.74 Once the Panel has concluded that the impugned me asures have in fact meant a suspension of 
the most-favoured-nation treatment obligation in Ar ticle I:1 of the GATT 1994 with respect to the 
products concerned, there is no need to consider further whether those measures also constitute the 
suspension of obligations incurred by the Domini can Republic under Article II:1(b), second sentence, 
of the GATT 1994.  For the fact that, by invoking Article XIX of the GATT 1994 or the Agreement on Safeguards, the impugned measures suspended in whol e or in part at least one obligation incurred 
by the Dominican Republic under the GATT 1994 with respect to the products concerned is 
sufficient, in the circumstances of the present case, to establish the applicability of Article XIX of the 
GATT 1994 and the Agreement on Safeguards to this dispute. 
7.75 Nevertheless, the Panel will al so consider whether the impugne d measures also constitute a 
suspension of obligations of the Dominican Repub lic under Article II:1(b), second sentence, of the 
GATT 1994. 
7.76 The complainants affirm that the impugned measures also suspend the application of 
Article II:1(b), second sentence, of the GATT 1994 in th at they impose a tariff surcharge other than 
ordinary customs duties that is not recorded in th e Dominican Republic's schedule of concessions.  As 
mentioned above, the Dominican Republic replies th at Article XIX of the GATT 1994 only authorizes 
the suspension of tariff concessions and obligations relating to those concessions under Article II:1 of 
                                                      
144 See, for example, Preliminary Resolution, Exhibit CEGH-5, paragraph 51;  and Definitive 
Resolution, Exhibit CEGH-9, paragraph 42. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 38   
  the GATT 1994 and the prohibition on imposing quan titative restrictions under Article XI of the 
GATT 1994.  The Dominican Republic also conte nds that the impugned provisional measure and 
definitive measure consisted in the adoption of an ad valorem  tariff of 38 per cent which constituted 
an ordinary customs duty not exceeding the Dominican Republic's binding in the WTO and that it did not suspend obligations under Article II:1(b) of the GATT 1994. 
7.77 Article II:1(b) of the GATT 1994 provides as follows: 
The products described in Part I of the Sc hedule relating to any contracting party, 
which are the products of territories of other contracting parties, shall, on their 
importation into the territory to which the Sc hedule relates, and subject to the terms, 
conditions or qualifications set forth in that Schedule, be exempt from ordinary 
customs duties  in excess of those set forth and prov ided therein.  Such products shall 
also be exempt from all other duties or charges of any kind  imposed on or in 
connection with the importation in excess of those imposed on the date of this 
Agreement or those directly and mandator ily required to be imposed thereafter by 
legislation in force in the importing territory on that date. (Without italics in the original.) 
7.78 In other words, Article II:1(b) of the GATT 1994 in principle prohibits:  (i) the levying of 
ordinary customs duties in excess of the ceilings set  forth in the Schedule of the importing Member 
concerned (first sentence);  and (ii)  the levying of other duties or charges of any kind imposed on or in 
connection with importation (second sentence), in excess  of those imposed on the date of entry into 
force of the GATT 1994 or those directly and mandato rily required to be imposed thereafter by 
legislation in force in the importing Member on that  date.  The Understanding on the Interpretation of 
Article II:1(b) of the General Agreement on Ta riffs and Trade 1994 provides that the importing 
Member had to record in its schedule of concessions the other duties or charges applied on the date of 
entry into force of the GATT 1994 or which had to be applied directly and mandatorily under 
legislation in force on that date.
145  Article II:2 contains a list of measures which may be imposed on 
the importation of any product, irrespective of th e content of Article II:1(b), which include:  
(i) charges equivalent to internal taxes levied on like domestic products or in respect of articles from which the imported product has been manufactured;  (ii) anti-dumping or countervailing duties;  and 
(iii) fees or other charges commensurate with the cost of services rendered. 
7.79 The use of the expression " all other duties or charges of any kind imposed on or in 
connection with the importation" in Article II:1( b), second sentence, suggests that the prohibition 
covers any duty or charge of any kind on or in conn ection with the importation that is not an ordinary 
customs duty.
146  In other words, the category of other duties or charges under Article II:1(b), 
second sentence, is a residual one covering all du ties or charges on or in connection with the 
importation that are not ordinary customs duties147 and which are not expressly provided for in 
Article II:2 of the GATT 1994. 
                                                      
145 See Dominican Republic, reply to Panel question No. 182. 
146 Save for certain exceptions, such as duties or charges applied or mandatorily required to be applied 
on the date of the agreement.  See in this connection the provisions of the Understanding on the Interpretation of 
Article II:1(b) of the General Agreement on Tariffs and Trade 1994. 
147 Complainants, reply to Panel question No. 181;  Dominican Republic, reply to Panel 
question No. 181.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 39 
  
  7.80 It is therefore necessary to consider whethe r the impugned measures may be categorized as 
"ordinary customs duties" within the meaning of Article II:1 of the GATT 1994 or whether on the 
contrary, and as the complainants affirm , they are "other duties or charges". 
7.81 The expression "ordinary customs duties"  appears in the Spanish text as " derechos de aduana 
propiamente dichos " and in French as " droits de douane proprement dits ".  Applying the 
interpretative rule of Article 33 of the Vienna Conv ention, it must be presumed that the terms of the 
agreement have the same meaning in  each authentic text (Spanish, E nglish and French).  In addition, 
if a comparison of the various authentic texts reveal s a difference in meaning, the meaning that best 
reconciles the texts, bearing in mind the object and purpose of the agreement, should in principle be 
adopted. 
7.82 In Spanish, the word " propiamente " used in " propiamente dichos " is related to the word 
"propiedad " [property], in the sense of " atributo o cualidad esencial " [essential attribute or quality] of 
something.
148  Hence, a " derecho de aduana propiamente dicho " would be a duty that possesses the 
essential attributes or qualities of customs duties.  " Proprement " in the French expression 
"proprement dits " relates to the strict meaning in which an expression is used.149  In other words, 
while a Member may impose various duties at the border, the expressions customs duty " propiamente 
dicho " and customs duty " proprement dit " emphasize that the scope of the provision is limited to 
customs duties in the strict sense of the term ( stricto sensu ). 
7.83 The expression used in the text in English sugg ests a slightly different shade of meaning.  
"Ordinary" is defined as "Belonging to or occurring in  regular custom or practice;  normal, customary, 
usual".  The contrary is "Extraordinary".150  In Spanish, " Ordinario " is defined as " Común, regular y 
que sucede habitualmente " [Common, regular and usually occurring].  The contrary would be 
"extraordinario " [extraordinary] or " inusual " [unusual].151  In French, " Ordinaire " is defined as 
"Conforme à l'ordre normal, habituel des choses " [in conformity with the normal, usual order of 
things] or " courant, habituel, normal, usuel " [current, customary, normal, usual].  The contrary would 
be "anormal " [abnormal], " exceptionnel " [exceptional] or " extraordinaire " [extraordinary].152 
7.84 In its report in Chile – Price Band System , the Appellate Body made it clear that what 
determines whether "a duty imposed on an import at the border" constitutes an ordinary customs duty 
is not the form which that duty takes.153  Nor is the fact that the duty is calculated on the basis of 
exogenous factors, such as the interests of consumers or of domestic producers.154  T h e  
Appellate Body also explained that a Member may pe riodically change the rate at which it applies an 
"ordinary customs duty", provided it remains below the rate bound in the Member's schedule.155  This 
change in the applied rate of duty could be made, for example, through an act of the Member's 
legislature or executive at any time.  However, one  essential feature of "ordinary customs duties" is 
that any change in them is discontinuous and unrelated to an underlyi ng scheme or formula.156  The 
                                                      
148 Diccionario de la Lengua Española , 22nd Ed. (Real Academia Española, 2001), p. 1252. 
149 Le Nouveau Petit Robert  (Dictionnaires Le Robert, 2000), pp. 2022-2023. 
150 Shorter Oxford English Dictionary , 6th Ed. (Oxford University Press, 2007), vol. 2, p. 2021. 
151 Diccionario de la Lengua Española , 22nd Ed. (Real Academia Española, 2001), pp. 695, 878 
and 1105. 
152 Le Nouveau Petit Robert  (Dictionnaires Le Robert, 2000), pp. 1732-1733. 
153 Appellate Body Report, Chile – Price Band System , paragraph 216. 
154 Appellate Body Report, Chile – Price Band System , paragraphs 271-278. 
155 Appellate Body Report, Chile – Price Band System , paragraph 232 (in which it quotes the 
Appellate Body Report, Argentina – Textiles and Apparel , footnote 56 to paragraph 46). 
156 Appellate Body Report, Chile – Price Band System , paragraphs 232-233. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 40   
  Appellate Body noted that the price band system impugned in that case contained an inherent 
variability and had the effect of impeding the tran smission of international price developments to 
Chile's market in the way in which ordinary customs duties normally would, also generating in its 
application a lack of transparency and predicta bility with respect to ma rket access conditions.
157 
7.85 All in all, using a meaning that seeks to rec oncile the texts of the GATT 1994 in the various 
official languages, we could conclude that the expr ession "ordinary customs duties" in Article II:1(b) 
of the GATT 1994 refers to duties collected at the border which constitute "customs duties" in the 
strict sense of the term ( stricto sensu ) and that this expression does not cover possible extraordinary or 
exceptional duties collected in customs.  This woul d be compatible with the object and purpose of the 
GATT 1994 which, as the Appellate Body said in Chile – Price Band System , seeks to ensure that the 
application of customs duties gives rise to tran sparent and predictable market access conditions and 
does not impede the transmission of international pr ice developments to the domestic market of the 
importing country.  To reach a conclusion in this respect, the Panel must consider the design and 
structure of the measures concerned. 
7.86 In the present case, while the impugned measures ar e duties levied in customs, considering 
their design and structure they are "extraordinary" or  "exceptional" and not "ordinary" measures.  The 
Definitive Resolution whereby the Commission issu ed its final decision and imposed the impugned 
definitive measure speaks of a " tariff  of the order of thirty-eight per cent (38%) ad-valorem" 
(emphasis added) applied "definitively".  However, the same Resolution states that the measure shall 
be applied only for a period of 18 months, that the duty is subject to a six-monthly reduction process 
and that in practice the measure does not at all replace  - but rather coexists with - the MFN tariff.  In 
other words, the impugned measures do not constitute th e ordinary tariff that is normally applicable 
nor do they replace that tariff by a new tariff applied under the most-favoured-nation treatment.158  
Instead, the impugned measures replace the ordinary tariff temporarily and only for imports 
originating in certain Members.  For imports or iginating in other Members (Colombia, Indonesia, 
Mexico and Panama) the MFN tariff remains applicable.159  Moreover, although from the formal 
standpoint the measure does not constitute a tariff surcha rge, it is designed in such a way that, at least 
for a period, it has resulted de facto  in the collection of an additional duty above the MFN tariff 
rate.160 
7.87 The Dominican Republic has stated that, "as l ong as the increased tariff is in force, the 
MFN tariff normally applicable is not in force".161  In the opinion of the Panel, this confirms that the 
measures are something distinct from the normally a pplicable tariff.  As they are temporary and 
extraordinary measures coexisting with the MFN tariff applicable to imports from certain origins, and 
taking into account the fact that they are not any of the measures listed in Article II:2 of the 
                                                      
157 Appellate Body Report, Chile – Price Band System , paragraphs 246-251. 
158 Furthermore, as the complainants point out, the impugned measures were adopted on the basis of the 
domestic legislation and multilateral rules on safeguards and not of some other rules, such as Law 146-00 , which 
is the domestic legislation governing tariff matters in the Dominican Republic.  See paragraph 7.38 of this Report. 
159 Dominican Republic, reply to Panel question No. 177. 
160 As of 16 March 2010 (date of entry into force of  the provisional measure) the measures resulted in 
duties of between 28 per cent ad valorem  and 38 per cent ad valorem , whereas the MFN tariff applicable to 
imports originating in Colombia, Indonesia, Mexico and Panama remained 14 per cent ad valorem  for tubular 
fabric and 20 per cent ad valorem  for polypropylene bags. 
161 Dominican Republic, opening statem ent at the first meeting of the Panel, paragraph 47.  See also, 
opening statement at the second meeting of the Panel, paragraph 25.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 41 
  
  GATT 1994, the impugned measures represent a duty or char ge on imports that is distinct from the 
"ordinary customs duty". 
7.88 Thus, in the light of the current terms used in Article II:1(b) of the GATT 1994, since the 
impugned measures are not "ordinary customs duti es" nor any of the measures provided for in 
Article II:2 of the GATT 1994, by definition they mu st be other "duties or charges … imposed on or 
in connection with the importation".  Furthermore, it is undisputed that the impugned measures are not recorded in the Dominican Republic's schedul e of concessions and do not correspond to duties or 
charges that the Dominican Republic applied at the date of entry into force of the GATT 1994 or was 
required to apply as a direct and mandatory cons equence of legislation in force on that date.
162  
Consequently, since they result in the levying of such duties or charges, the impugned measures have 
suspended the obligations of the Dominican Republ ic under Article II:1(b), second sentence, of the 
GATT 1994 with respect to the import duties im posed on the imported products concerned. 
(d) Conclusion 
7.89 For the reasons explained above, the Panel concludes that the complainants have 
demonstrated that the impugned measures have resulte d in a suspension of obligations incurred by the 
Dominican Republic under the GATT 1994.  That bei ng so, and taking into account also that the 
impugned measures were taken by the Dominican Republic with the objective of remedying a 
situation of serious injury to the domestic industr y brought about by an increase in imports, were the 
result of a procedure based, inter alia , on the provisions and procedures of Article XIX of the 
GATT 1994 and the Agreement on Safeguards and we re notified by the Dominican Republic as 
safeguard measures to the WTO Committee on Safegua rds and under the procedures provided for in 
Article XIX of the GATT 1994 and the Agreement on Safeguards, the Panel concludes that the 
provisions of Article XIX of the GATT 1994 and th e Agreement on Safeguards are applicable to the 
examination it has to make of the cl aims raised in the present dispute. 
7.90 Considering that the impugned measures have suspended obligations of the 
Dominican Republic under the GATT 1994, the question as to whether a measure may be considered a safeguard and examined under Article XIX of  the GATT 1994 and the Agreement on Safeguards 
even assuming that it did not suspend any obligation under the Agreement or withdraw or modify concessions, is a purely theoretical issue that is of no practical relevance for resolving the present 
dispute.  The complainants raised this alternative issue solely in the event that the Panel were to 
consider that the impugned measures did not result in  a suspension of obligations within the meaning 
of Article XIX:1(a) of the GATT 1994.
163  Consequently, the Panel will not take up the analysis of 
this point. 
7.91 As a final consideration, the Panel notes that the Dominican Republic has affirmed that the 
interpretation put forward by the complainants c ould affect the "inherent and essential flexibility of 
the WTO system of tariff concessions", whereby Me mbers may freely increase their tariffs to a level 
below the bound rate.164  In the Panel's opinion, the findings gi ven above do not aff ect the flexibility 
which WTO Members enjoy under the provisions of the GATT 1994 freely to change their tariffs by 
                                                      
162 The Dominican Republic has confirmed that the impugned measures are not covered by anything 
recorded in "other duties or charges" that it applied or  had to apply on the date of entry into force of the 
GATT 1994.  Dominican Republic, reply to Panel question No. 183. 
163 Complainants, opening statement at the first meeting of the Panel, paragraphs 10-11;  reply to Panel 
question No. 41. 
164 Dominican Republic, closing statement at the s econd meeting of the Panel, paragraphs 5-7. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 42   
  adopting new ordinary customs duties that rema in under the rate bound in their schedule of 
concessions.  Nor does it affect the WTO Members' faculty to impose emergency measures on the 
importation of specific products, and as a result suspe nd in whole or in part obligations they have 
incurred under the GATT 1994 with respect to those products, including the possibility of 
withdrawing or modifying concessions, consisten tly with Article XIX of the GATT 1994 and the 
Agreement on Safeguards. 
C. P
RELIMINARY OBJECTIONS RAISED BY THE DOMINICAN REPUBLIC  
1. Jurisdiction of the Panel to settle the dis pute on the basis of agreements that are not 
covered agreements 
(a) Main arguments of the parties 
7.92 In its request for a preliminary ruling, the Dominican Republic asked the Panel to decline 
jurisdiction in the present dispute on the ground that , among other things, the complainants challenged 
the application by the Dominican Republic of a tariff in  excess of the preferential tariff of 0 per cent 
ad valorem  provided for in two free trade treaties (FTAs) signed with the complainants (the 
Central America-Dominican Repub lic FTA and the DR-CAFTA FTA).165  According to the 
Dominican Republic, pursuant to Articles 3.2 and 7. 2 of the DSU, the Panel is not competent to 
analyse the infringement of a concession granted outsi de the scope of the WTO (in this specific case, 
under two FTAs).  The Dominican Republic argues that  the complainants are trying to make abusive 
and improper use of rights provided by the DSU.166 
7.93 For their part the complainants consider that  the Dominican Republic's preliminary objection 
concerning the Panel's lack of jurisdiction is irrele vant and groundless.  They point out that they did 
not request, either in the request for the establishmen t of the Panel or in their first written submission, 
that the Panel rule on the infringement of internatio nal undertakings other than those contained in the 
WTO agreements.167 
7.94 In response to a Panel question, each of the par ties stated that in its opinion there were no 
limitations under the covered agreements fo r a Member to impugn a measure through the 
WTO dispute settlement mechanism if it considered that that measure, as well as being inconsistent 
with commitments incurred by another Member under an FTA, was inconsistent with obligations 
under the covered agreements.168  The parties also said that the provisions of the 
Central America-Dominican Republic FTA and the DR -CAFTA FTA were not relevant to the present 
dispute because they were not part of the covered ag reements, and agreed that the complainants were 
not alleging infringement of the provisions of those agreements.169 
                                                      
165 Dominican Republic, request for a preliminary ruling, paragraph 50. 
166 To support its argument the Dominican Republic cited as case-law the Appellate Body Report, 
México – Taxes on Soft Drinks  and the Panel Report, EC and Certain Member States – Large Civil Aircraft .  
Dominican Republic, request for a preliminary ruling, paragraphs 51-54. 
167 Complainants, reply to the Dominican Republic's request for a preliminary ruling, paragraph 8;  
closing statement at the first meeting of the Panel, paragraph 3. 
168 Dominican Republic, reply to Panel question No. 78;  complainants, reply to Panel question No. 78. 
169 Dominican Republic, reply to Panel question No. 80;  complainants, reply to Panel question No. 80.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 43 
  
  (b) Main arguments of the third parties 
7.95 The United States, Turkey and the European Union submitted comments on this point.  All 
three considered that there was no restriction under the WTO agreements for a member to be able to 
impugn a measure before the WTO dispute settlement m echanism if it consider ed that that measure 
was inconsistent with obligations of the WTO cove red agreements as well as being inconsistent with 
commitments incurred by another member under an FTA.
170 
(c) Assessment of the Panel 
7.96 As may be seen from the above arguments, the parties agree that the complainants are not 
putting forward claims alleging the inconsistency of the impugned measures with provisions of the 
above-mentioned FTAs.  Both parties al so agree that the provisions of the 
Central America-Dominican Republic FTA and the DR-CAFTA FTA are not relevant for the present dispute. 
7.97 In view of the foregoing, the Panel does not see a need to make any additional comment on 
this point.  In any case the Panel notes the Dominica n Republic's request that the Panel "confine itself 
to making an objective assessment of the matter be fore it on the basis of the relevant covered 
agreements alone, in accordance with Article 11 of  the DSU, and refrain from making findings that 
are not strictly necessary for resolving the present di spute in the light of the covered agreements".
171 
7.98 The Dominican Republic has requested the Pane l, in the event that it concludes that 
Article XIX of the GATT 1994 and the Agreement on Safeguards are applicable to the present 
dispute, to resolve other preliminary issues relating to its terms of reference before considering the 
merits of the complainants' claims.172 
2. Other preliminary objections put forward by the Dominican Republic 
(a) Main arguments of the parties 
7.99 The preliminary issues raised by the Dominican Republic concerning the terms of reference 
relate to:  (i) certain claims developed by the complainants in their first written submission which 
were allegedly not identified in the requests for the establishment of the panel;  (ii) certain claims 
developed by the complainants in their first written submission which allegedly were not identified in 
the requests for consultations;  and (iii) certain cl aims identified in the re quests for the establishment 
of the panel which were not developed in the complainants' first written submission.  The 
Dominican Republic considers that the Panel's terms of reference do not include consideration of the 
merits of these claims.173  These issues are identified below. 
7.100  First, with respect to the claim concerni ng unforeseen developments  and GATT obligations, 
the Dominican Republic states that:  (i) the complain ants put forward this claim in their requests for 
consultations and the establishment of the panel but in neither of these requests did they indicate that, 
as a consequence of the lack of reasoned and ade quate findings on the unforeseen developments and 
                                                      
170 United States, reply to Panel question No. 9;  Turkey, reply to Panel questions Nos. 9 and 10;  
European Union, reply to Panel questions Nos. 9 and10. 
171 Dominican Republic, reply to Panel question No. 187, paragraph 47. 
172 Dominican Republic, first written submission, paragraphs 44-91. 
173 Dominican Republic, first written submission, paragraphs 50, 51, 53 and 86. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 44   
  GATT obligations, the findings on the increase in impor ts, serious injury and the causal link were also 
affected, as the complainants argue in their first writ ten submission;  (ii) Article 2.1 of the Agreement 
on Safeguards, which the complainants invoke in th eir first written submission, was not included in 
the request for the establishment of the panel;  and (iii) Article 4.2(b) of the Agreement on 
Safeguards, identified in the request  for the establishment of the panel,  was not included in the request 
for consultations.  Accordingly, the Dominican Re public considers that these issues are not covered 
by the Panel's terms of reference.
174 
7.101  Second, with respect to the claim concerning the causal link, the Dominican Republic states 
that the complainants do not identify Article 4.1 of the Agreement on Safeguards in the requests for 
consultations, although they mention it as a basis fo r their claim in their requests for the establishment 
of the panel and their first written submission.  The Dominican Republic therefore considers that 
Article 4.1 of the Agreement on Safeguards is not part  of the Panel's terms of reference in the context 
of the claim concerning the causal link.175 
7.102  Third, the Dominican Republic contends that  in their requests for consultations the 
complainants did not identify the claim that the Dominican Republic had not afforded an opportunity 
for an adequate means of trade compensation in accordance with Article 8.1 of the Agreement on 
Safeguards.  The Dominican Republic therefore co nsiders that Article 8.1 of the Agreement on 
Safeguards is not part of th e Panel's terms of reference.176 
7.103  Fourth, the Dominican Republic states that sp ecific claims identified in the requests for 
consultations and in the requests for the establis hment of the panel were not developed in the 
complainants' first written submission.  The Domi nican Republic therefore considers that the 
complainants have withdrawn them.  Those claims are:  (i) the alleged failure of the Commission to provide a reasoned and adequate explanation as  to why it classified specific information as 
confidential and why it did not ask for non-confidenti al summaries of that information, inconsistently 
with the obligations in Articles 3.1 and 3.2 of the Ag reement on Safeguards;  (ii)  the alleged failure of 
the Commission to provide reasone d and adequate findings on the necessity of the measures to 
facilitate the adjustment of the domestic industry, in consistently with the obligations in Article 3.1, 
4.2(c) and 5.1 of the Agreement on Safeguards;  (iii) the alleged inconsistency of the impugned 
measures with Article I:1 of the GATT 1994;  a nd (iv) the alleged inconsistency of the impugned 
measures with Articles II:1(a) and II:1(b), second sentence, of the GATT 1994.  The 
Dominican Republic also states that the last thr ee claims are also outside the Panel's terms of 
reference as they were not identifie d in the requests for consultations.
177 
7.104  The Dominican Republic contends that the impair ment of the right of defence would only be 
relevant when considering the possible shortcomings  of a request for the establishment of a panel in 
the light of Article 6.2 of the DSU, but not with resp ect to the lack of consultations.  Nevertheless, the 
Dominican Republic argues that its right of defence w as adversely affected.  With regard to the claims 
which were included in the request for the establishm ent of the panel but which were not identified in 
the request for the holding of consultations, the Dominican Republic points out that the modification of the essence of the claims is a relevant criterion as regards not only the inclusion of new measures 
                                                      
174 Dominican Republic, first written submission, paragraphs 60-62 and 65-69. 
175 Dominican Republic, first written submission, paragraph 73. 
176 Dominican Republic, first written submission, paragraphs 74-85. 
177 Dominican Republic, first written submission, paragraphs 86-90.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 45 
  
  but also the inclusion of new legal grounds, and assert s that, in the present case, the inclusion of new 
claims modified the essence of  the complainants' claims.
178 
7.105  The complainants reject the preliminary objec tions put forward by the Dominican Republic. 
7.106  On the aspects of the claim concerning unforeseen developments and GATT obligations, 
which were allegedly not identified in the re quests for the establishment of the panel, the 
complainants argue that both the implications  that would stem from non-compliance with the 
requirement to demonstrate unforeseen developments  as well as the relevance of Article 2.1 of the 
Agreement on Safeguards may be dedu ced from the requests for the establishment of the panel, and in 
particular from subparagraphs (e) and (f) of tho se requests, even though they were not raised 
independently.179 
7.107  With regard to the issues that were allegedly not identified in the requests for consultations 
but were identified in the requests for the establishmen t of the panel, the complainants state that this 
inclusion did not alter the essence of the claims iden tified in the request for consultations.  They also 
state that, in accordance with earlier decisions taken by panels and the Appella te Body on this subject, 
there does not need to be a precise and exact iden tity between the legal grounds for a request for 
consultations and those for a request for the est ablishment of a panel, provided the latter may 
reasonably be derived from the former.  In addition , they state that the Dominican Republic has not 
shown that its right of defence has been affected.180 
7.108  On the alleged withdrawal of certain claims that were not developed in their first written 
submission, the complainants state that the Domi nican Republic's argument is inappropriate because, 
in accordance with earlier decisions taken by panels  and the Appellate Body on this subject, there is 
no obligation to develop all the claims in the first written submission to the Panel, and the 
complaining party has the possibility to develop its  arguments in its second written submission.  They 
also point out that the claims to which the Domi nican Republic objects are contained in the requests 
for the establishment of the panel, and therefore form  part of the Panel's terms of reference.  They 
observe that they have withdrawn their claim conc erning the consideration of certain information as 
confidential without non-confidential summaries having been requested, inconsistently with 
Articles 3.1 and 3.2 of the Agreement on Safeguards.  With the exception of this last claim, they state 
that they have not withdrawn the other three claims , which they have developed in the course of the 
proceedings.181 
                                                      
178 Dominican Republic, reply to Panel questions Nos. 84, 88, 89 and 92;  opening statement at the 
first meeting of the Panel, paragraphs 2-15. 
179 Complainants, reply to Panel question No. 82. 
180 Complainants, reply to Panel questions Nos. 82, 85  and 86 (in which they cite the Panel Reports, 
Brazil – Aircraft , paragraph 7.10;  EC – Fasteners (China) , paragraph 7.24;  and US – Poultry (China) , 
paragraph 7.46;  and Appellate Body Reports, Mexico – Anti-Dumping Measures on Rice , paragraph 138;  and 
US – Upland Cotton , paragraph 293).  See also, complainants, ope ning statement at the first meeting of the 
Panel, paragraph 34;  second written submission, paragraphs 49 and 50. 
181 Complainants, reply to Panel questions Nos. 82, 85 and 86 (in which they refer to decisions of the 
Appellate Body in EC – Bananas III and the Panel in China – Publications and Audiovisual Products ).  In 
particular, with regard to the claim concerning the necessity of the measure within the meaning of Articles 5.1, 
3.1, last sentence, and 4.2 of the Agreement on Safeguards, the complainants state that, having made a prima facie case that the preliminary and final determ inations are inconsistent with the non-attribution 
requirement in Article 4.2(b), second sentence, of the Agreement on Safeguards, they have also established WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 46   
  (b) Main arguments of the third parties 
7.109  None of the third parties made comments on these preliminary objections put forward by the 
Dominican Republic. 
(c) Assessment of the Panel 
7.110  With regard to the complain ants' claim that the impugned measures are inconsistent with 
Articles I:1, II:1(a) and II:1(b), second sentence, of  the GATT 1994, the Panel observes that this claim 
was put forward alternatively, only in the event th at the Panel were to conclude that the impugned 
measures are not subject to Article XIX of  the GATT 1994 and the Agreement on Safeguards.
182  
Since the Panel has concluded that the provisi ons of Article XIX of the GATT 1994 and the 
Agreement on Safeguards are applicable to the ex amination of the impugned measures, there is no 
need to analyse this alternative claim of the complainants and therefore it is not necessary for the 
Panel to rule on the preliminary issue raised by th e Dominican Republic with regard to this claim. 
7.111  The Panel will analyse the other preliminary i ssues raised by the Dominican Republic, insofar 
as they are relevant, in the corresponding sections of its report.183 
D. WHETHER THE PROVISIONAL MEASURE AND THE DEFINITIVE MEASURE ARE INCONSISTENT 
WITH ARTICLE XIX  OF THE GATT  1994  AND WITH VARIOUS PROVISIONS OF THE 
AGREEMENT ON SAFEGUARDS  
7.112  The Panel having concluded that Article XIX of the GATT 1994 and the Agreement on 
Safeguards are applicable to the present dispute, it will now consider the various claims made by the 
complainants under these provisions with respect to the provisional and definitive measures. 
1. Whether the competent authority acted inconsistently with obligations under the 
covered agreements as regards the determin ation of unforeseen developments and the 
effect of GATT obligations 
(a) Main arguments of the parties 
(i) Complainants 
7.113  The complainants claim that, with respect to  the provisional and definitive measures, the 
competent authority failed to evaluate the unforeseen  developments and the effect of the GATT 1994 
obligations said to have occasioned the alleged incr ease in imports causing serious injury and that the 
Dominican Republic therefore violated Article XIX:1(a) of the GATT 1994 and Articles 3.1, 
last sentence, 4.2(c), and 11.1(a) of the Agreemen t on Safeguards.  Conse quently, the complainants 
assert that the determinations relating to increased imports, serious injury and causality, as well as the 
imposition of the provisional and definitive measures, are inconsistent with Article XIX:1(a) of the 
                                                                                                                                                                     
prima facie that the measures are no t necessary to prevent or remedy se rious injury and adjustment and are 
therefore also inconsistent with Ar ticle 5.1.  Complainants, reply to Panel questions Nos. 82, 85 and 86. 
182 Complainants, second written submission, paragraphs 254-255;  opening statement at the 
first meeting of the Panel, paragraphs 6 and 39. 
183 See paragraphs 7.151, 7.328 and 7.441 of the present Report.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 47 
  
  GATT 1994 and Articles 2.1, 4.2 and 11.1(a) of the Ag reement on Safeguards, and with Article 6 of 
the Agreement on Safeguards with r espect to the provisional measure.
184 
7.114  The complainants note that the question of th e obligation to demonstrate the existence of 
unforeseen developments is one that has already been  decided by the Appellate Body, so that there 
can be "no talk" of the Dominican Republic's in tention to reopen the debate in this respect.185  They 
maintain that the Dominican Republic failed to fulfil  this obligation.  In particular, they assert that 
China's accession to the WTO and its implicatio ns for trade cannot constitute an unforeseen or 
unexpected development for the Dominican Republic , since at the time when the WTO Agreement 
entered into force for the Dominican Republic (9  March 1995) the negotiations relating to China's 
accession were already under way, havi ng begun in 1987.  In addition, they point out that there are no 
findings in the reports of the competent authority to  show that this event would have been unforeseen 
for the Dominican Republic, only that it was unforeseen  for the domestic industry.  The complainants 
add that, even assuming that China's acce ssion was an unforeseen development for the 
Dominican Republic and that the latter made a reas oned and adequate finding in this respect, the 
Dominican Republic failed to establish a logical connection between China's accession and the alleged increase in imports.
186 
7.115  With respect to the tariff reductions resulting fro m the entry into force of the DR-CAFTA and 
Central America-Dominican Republic FTAs, the complainants consider that the 
Dominican Republic's decision to sign the first of these agreements in 1998 and the second in 2004 
could not have been an unforeseen development for the Dominican Republic at the time that it entered 
into obligations under the WTO in 1995.  In particul ar, they point out that in acceding to the WTO in 
1995, the Dominican Republic assumed the rights a nd obligations embodied in the WTO Agreement, 
including those in Article XXIV of the GATT 1994, and hence the possibility of signing free trade 
agreements in conformity with that article coul d not have been an unforeseen development for the 
Dominican Republic.  They also assert that, inasmuch  as the purpose of free trade areas is to achieve 
liberalization more extensive than that available w ithin the framework of the WTO, it is unacceptable 
for tariff reductions under such ag reements to be regarded as unfor eseen developments.  According to 
                                                      
184 Complainants, first written submission, para graphs 195-196 and 235-236;  second written 
submission, paragraph 169. 
185 The complainants also note the statement by the Appellate Body th at "absent cogent reasons, an 
adjudicatory body will resolve the same legal question in the same way in a subsequent case" and point out in 
this connection that the Dominican Republic has failed to give any cogent reason for departing from the 
Appellate Body's view.  Complainants, opening statement at the first meeting of the Panel, paragraphs 48-52 
(where the Appellate Body Reports Argentina – Footwear (EC) , paragraph 83, and US – Stainless Steel 
(Mexico) , paragraph 160, are cited). 
186 Complainants, first written submission, paragraphs 206 and 223;  second written submission, 
paragraphs 176-181;  opening statement at the second meeting of the Panel, paragraph 42.  In this connection, 
the complainants point out that the Dominican Republic made ex post  reference to an annex to the Final 
Technical Report which only contained the value of imports of diverse origins, so that it could not serve as proof that China's admission to the WTO resulted in an increase in imports.  Likewise, they claim that if the said 
annex were to prove such a connection, it could also be (g roundlessly) asserted that the increase in imports from 
the other countries identified therein showed that their membership of th e WTO formed part of unforeseen 
developments that gave rise to the increase in imports.  Complainants, second written submission, 
paragraph 181. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 48   
  the complainants, these tariff reductions were not onl y predictable but the very purpose of the trade 
agreements freely signed by all the parties, including the Dominican Republic.
187 
7.116  At the same time, the complainants add that there are no findings or conclusions based on 
these alleged unforeseen developments, while the Initial Technical Report and the Preliminary 
Technical Report do no more than describe the arguments put forward by the company FERSAN in 
this respect.  They also point out that the statement in the final pub lic notice (to the effect that the 
tariff reductions of the regional agreements in question "could partially explain the unforeseen 
developments") is an ex post  explanation, as the notice in ques tion was published one day after the 
adoption of the Definitive Resolution, and does not  explain which developments the Commission had 
in mind, while the expression employed ( could explain ) is not the same as a demonstration of a 
logical connection  between the tariff reductions and the alleged increase in imports.  In fact, 
according to the complainants, the statements of the Dominican Republic indicate that it was its 
regional commitments, "and not the effect of th e GATT obligations", that gave rise to the 
Dominican Republic's concerns about increased imports.188 
7.117  Finally, the complainants clai m that the Commission did not provide a reasoned and adequate 
explanation of how the effect of the GATT obligations impacted on the alleged increase in imports that caused serious injury to the domestic industry.  In this respect, they point out that there are no 
findings in which the relevant obligations assu med by the Dominican Republic under the GATT are 
identified and where it is explained how these obliga tions could have resulted in the alleged increase 
in imports.  According to the co mplainants, the references made ex post by the Dominican Republic 
do not identify any explicit finding to the effect th at the alleged increase in imports was the result of 
obligations incurred by the Dominican Republic under the GATT.
189 
(ii) Dominican Republic 
7.118  The Dominican Republic maintains that the "unf oreseen developments" clause in Article XIX 
of the GATT 1994 does not constitute a binding obliga tion and, consequently, does not have to be 
demonstrated in order for a safeguard measure to be invoked.190 
7.119  The Dominican Republic notes that the Agre ement on Safeguards makes no reference to 
unforeseen developments, and so in this respect waives Article XIX of the GATT 1994.191  It also 
                                                      
187 Complainants, second written submission, paragraphs 186-188;  opening statement at the second 
meeting of the Panel, paragraph 43.  The complainants add that it would be wrong if these voluntary acts, subsequent to an international commitment, could later be claimed to be "unforeseen developments", since that 
interpretation would mean that merely by signing a trade agreement any Member would automatically fulfil the 
unforeseen developments requirement and thus be en titled to impose safeguard measures for any increase in 
imports.  Complainants, second written submission, paragraph 188. 
188 Complainants, first written submission, paragrap hs 207-208, 222 and 224-225;  second written 
submission, paragraphs 189-190.  The complainants also note that the tariff reduction in question applies only to imports from Central America and the United States and does not explain the increase in imports from other 
sources. 
189 Complainants, first written submission, paragrap hs 227 and 233-234;  second written submission, 
paragraphs 191-193;  opening statement at the second meeting of the Panel, paragraph 45. 
190 Dominican Republic, first written submission, paragraphs 282-283. 
191 In particular, the Dominican Republic indicates that the words "applied in accordance with this 
Agreement" in Article 11.1(a) mean that the more specific and subsequent provisions of the Agreement on 
Safeguards are those that govern the application of safeguard measures and take precedence over contrary  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 49 
  
  claims that the negotiating history reveals that th e intention of the Uruguay Round negotiators was not 
to maintain "unforeseen developments" as a legally binding requirement.  In this connection, it argues 
that the fact that the negotiators dropped the clause relating to unforeseen developments contained in a 
1989 draft of the Agreement on Safeguards, which had made the demonstration of an "unforeseen, 
pronounced and substantial increase in the am ount of the product imported" a condition of the 
imposition of a safeguard measure, shows that the ne gotiators did not have the intention of including 
this factor in the Agreement on Safeguard s as an independent and binding requirement.
192  In addition, 
it notes that other panels have concluded that the omission of "unforeseen developments" from the 
Agreement on Safeguards was intentional and ha ve expressed their disagreement with the 
Appellate Body's view that "unforeseen developmen ts" are a requirement for the application of a 
safeguard measure.193 
7.120  The Dominican Republic adds that its interpreta tion finds support in the national legislation of 
other Members and points out in this respect that th e relevant legislation of the United States and the 
European Union does not require the demonstration of "unforeseen developments" for the application 
of a safeguard measure.  It also claims that prev ious decisions of panels and the Appellate Body 
regarding "unforeseen developments" are ambiguous a nd lack guidelines, so that no Member is in a 
position to know with certainty what to demonstrate a nd how to demonstrate it in the light of the rules 
in force.194 
7.121  Finally, the Dominican Republic maintains th at the text of the Agreement on Safeguards 
contains terminology that suggests that it was negotiated as "an exhaustive set of rules for the 
application of safeguard measures", and given that the Agreement makes no reference to the 
"unforeseen developments" clause, that clause is not re levant within the context of the Agreement.  In 
particular, it points out that Article 1 of the Agreement on Safeguards "establishes rules for the 
application of safeguard measures";  Article 11.1(a) narrows the scope to "action [that] conforms with 
the provisions of that Article [Article XIX of  the GATT 1994] applied in accordance with this 
Agreement";  the preamble refers to "a comprehe nsive agreement";  the applicability of Article 8.3 
only requires that the safeguard measure should c onform to the provisions of the Agreement on 
Safeguards and makes no reference to GATT Article XIX;  and Article 2.1, which lays down the 
conditions for the application of a safeguard measur e, exactly repeats the wording of Article XIX of 
the GATT 1994 but omits the clause relating to unforeseen developments.195 
                                                                                                                                                                     
provisions of Article XIX of the GATT 1994.  Dominican Republic, first written submission, 
paragraphs 260-262. 
192 Dominican Republic, first written submission, paragraphs 265-266.  The Dominican Republic also 
claims that the fact that Article 8.3 of the Agreement on Safeguards does not refer to other provisions of the 
covered agreements or to Article XIX of the GATT implie s that if "unforeseen developments" were regarded as 
a requirement for the application of a safeguard measure, the right to suspend measures would be prohibited 
even if they were in violation of the covered agreements.  The Dominican  Republic argues that this confusion 
cannot be ascribed to the intentions of the negotiators.  Ibid., paragraph 268. 
193 Dominican Republic, first written submission, paragraphs 269-270 (where the panel reports in 
Korea – Dairy , paragraph 7.42, Argentina – Footwear (EC) , paragraph 8.66, and Argentina – Preserved 
Peaches , paragraph 7.24, are cited). 
194 Dominican Republic, first written submission, paragraphs 271 and 275-276.  For example, the 
Dominican Republic suggests that the reports of various panels and of the Appellate Body subsequent to the 
latter's reports in Korea – Dairy and Argentina – Footwear (EC)  do not offer clear guidance as to how the 
existence of "unforeseen developments" can adequately be demonstrated.  Ibid., paragraph 275. 
195 Dominican Republic, first written submission, paragraphs 277-280. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 50   
  7.122  Nevertheless, in the event that the Panel were to decide that the demonstration of unforeseen 
developments constitutes a binding obligation, the Dominican Republic claims that it fulfilled that 
obligation and that it therefore did not act inconsis tently with Article XIX:1(a) of the GATT 1994 nor 
with Articles 3.1, 4.2(c) and 11.1(a) of the Agreem ent on Safeguards.  In particular, it points out that 
both the Preliminary Technical Report and the Fina l Technical Report offer a reasoned and adequate 
explanation with regard to unforeseen developmen ts.  Likewise, the Dominican Republic notes that, 
as is clear from its schedule of bound tariffs, it h as granted a tariff concession of 40 per cent on the 
products corresponding to tariff lines 5407.20.20 a nd 6305.33.90 and that it has therefore 
demonstrated, as a matter of fact, that it has incu rred obligations under the GATT with respect to 
tubular fabric and polypropylene bags.
196 
(b) Main arguments of third parties 
(i) Colombia 
7.123  Colombia agrees with the Dominican Republic that  the standard of application of the concept 
of "unforeseeability" is not clear and, in fact, ma kes safeguard measures difficult to use.  It also 
considers that, in view of the lack of clarity w ith respect to the unforeseen developments rule, the 
Panel's examination cannot be  de novo or involve a judgment that goes beyond the elements 
reasonably available to the Member at the time th e disputed measure was applied, since otherwise 
essential legal principles of due process and subs tantive justice could potentially be infringed.197 
(ii) Panama 
7.124  Panama considers that the unforeseen developmen ts referred to in Article XIX of the GATT 
must be demonstrated as a matter of fact for it to be possible to apply a safeguard measure.  In the 
present case, Panama is of the opinion that the Domi nican Republic failed to fulfil this obligation, as 
well as to demonstrate the existence of a logical  connection between unforeseen developments and the 
conditions laid down in Ar ticle XIX of the GATT 1994.198 
(iii) European Union 
7.125  The European Union considers that there is no basis for the position taken by the 
Dominican Republic with regard to the non-applicabi lity of the "unforeseen developments" clause.  It 
points out in this respect that the Appellate Body has determined that the first part of Article XIX:1(a) 
of the GATT 1994 "describes certain circumstances which must be demonstrated as a matter of fact in 
order for a safeguard measure to be applied", a nd notes that the Dominican Republic has failed to 
offer any "convincing reason" why the Panel should de part from the Appellate Body's interpretation.  
The European Union is also of the opinion that th e increase in imports due to certain FTAs cannot be 
regarded as an "unforeseen development", since that  increase was not the "effect" of the obligations 
incurred by the Dominican Republic under the GATT, as required by Article XIX:1(a), but rather the 
"effect" of obligations incurred by the Dominican Republic under the FTA agreements in question.  
                                                      
196 Dominican Republic, first written submission, paragraphs 284-292.  See also, ibid., paragraph 299 
(where the Appellate Body Report in Argentina – Footwear (EC) , paragraph 91, is cited). 
197 Colombia, third party written submission, paragraphs 47-50;  third party statement, 
paragraphs 20-24;  reply to Panel question No. 17. 
198 Panama, third party written submission, paragraphs 23-24.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 51 
  
  The European Union therefore considers that this  development could not provide a basis for the 
imposition of safeguard measures.
199 
(c) Assessment of the Panel 
7.126  The argument put forward by the complainants raises two questions.  Firstly, whether the 
findings relating to unforeseen developments were reasoned and adequate and how did this situation 
cause the alleged increase in imports.  Secondly,  whether the findings concerning the relevant 
obligations incurred by the Dominican Republic under the GATT 1994 were reasoned and adequate 
and how did these obligations result in the alleged increase in imports. 
(i) Unforeseen developments 
7.127  Article XIX:1(a) of the GATT 1994 reads as follows: 
If, as a result of unforeseen developments and of the effect of the obligations incurred 
by a contracting party under this Agreem ent, including tariff concessions, any product 
is being imported into the territory of that contracting party in such increased 
quantities and under such conditions as to cause or threaten serious injury to domestic 
producers in that territory of like or directly competitive products, the contracting party shall be free, in respect of such produc t, and to the extent and for such time as 
may be necessary to prevent or remedy such  injury, to suspen d the obligation in 
whole or in part or to withdraw or modify the concession. 
7.128  The Appellate Body has made it clear that Ar ticle XIX of the GATT 1994 and the Agreement 
on Safeguards must be applied cumulatively, becau se the "unforeseen developments" condition is one 
whose existence must be demonstrated as a matter of fact for a safeguard measure to be applied 
consistently with Article XIX.
200  Unforeseen developments must be demonstrated before the 
safeguard measure is applied and the demonstrati on must feature in the published report of the 
competent authority.  This public report must ex amine the reason why the factors mentioned therein 
may be regarded as "an unforeseen devel opment" and offer an explanation for it.201  The public report 
must also provide an explanation of how the " unforeseen developments" resulted in the increase in 
imports causing the serious injury in question.202 
7.129  The dispute settlement system of the WTO do es not establish a system of precedents, and 
therefore the reasoning of the Appellate Body in a pa rticular case is not binding on panels set up to 
examine other cases.  However, the reports adopted  by the Dispute Settlement Body create legitimate 
expectations among the Members of the WTO.203  As the Appellate Body has pointed out, "following 
the Appellate Body's conclusions in earlier disput es is not only appropriate, but is what would be 
                                                      
199 European Union, third party written submission, paragraphs 26-35;  third party statement, 
paragraph 9. 
200 Appellate Body Report, Korea – Dairy , paragraph 85.  This finding was subsequently confirmed by 
panels and the Appellate Body.  See Appellate Body Reports, Argentina – Footwear (EC) ;  and US – Lamb ;  
and Panel Reports, US – Line Pipe ;  Chile – Price Band System ;  US – Lamb ;  US – Steel Safeguards ;  and 
Argentina – Preserved Peaches .  See also paragraph 7.66 of the present Report. 
201 Appellate Body Report, US – Lamb , paragraphs 72-73.  See also, paragraph 7.10 of the present 
Report. 
202 Appellate Body Report, US – Steel Safeguards , paragraphs 316-323. 
203 See, for example, Appellate Body Report, Japan – Alcoholic Beverages II , page 18. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 52   
  expected from panels, especially where the issues are the same".
204  In the present dispute, the 
Dominican Republic does not offer any convincing arguments why the Panel should depart from the 
interpretation adopted by the Appellate Body. 
7.130  The Dominican Republic identifies two "unforeseen developments":  (i) the entry of China 
into the WTO and the effect that th is had on international trade;  an d (ii) the process of tariff reduction 
accompanying the entry into force of the DR-C AFTA and Central America-Dominican Republic 
FTAs.205  Both parties agree that the time at which th ese developments had to be unforeseen is that at 
which the relevant tariff concessions were granted, that is, the time at which the Dominican Republic 
acceded to the WTO, i.e. 9 March 1995.206 
7.131  The Panel notes that neither the Commission' s Definitive Resolution nor its Preliminary 
Resolution make reference to or offer any fi nding or explanation concerning the unforeseen 
developments.  Paragraph 27 of the Definitiv e Resolution merely transcribes the text of 
Article XIX:1(a) of the GATT 1994.207  The Dominican Republic asserts that the findings and 
conclusions with respect to the events that allegedly constituted unf oreseen developments are 
contained in the Preliminary Technical Report and th e Final Technical Report of the DEI, which form 
part of the Preliminary Resolution and the Definitive Resolution, respectively.208  H o w e v e r ,  t h e s e  
DEI technical reports do not in fact contain th e findings and reasoned conclusions to which the 
Dominican Republic refers. 
7.132  The relevant portion of the DEI's Final Technical Report reads as follows: 
The DEI believes that China's incursion in to the multilateral trading system and the 
effect that had on international trade were  undoubtedly something that could not have 
been foreseen by the domestic industry wh en the Dominican Republic signed up to 
the measures set out in Article XIX of the GATT 1994.209 
7.133  This passage simply indicates that China's entr y into the WTO and the effect that had on 
international trade were events that "could not have  been foreseen by the domestic industry", but does 
not show that they were developments unforeseen by the Dominican Republic.210  Moreover, the 
                                                      
204 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, paragraph 188.  See also 
Appellate Body Report, US – Stainless Steel (Mexico) , paragraph 160. 
205 Dominican Republic, reply to Panel question No. 197.  Although initially the Dominican Republic 
appeared to assert that the financial and economic crisis of 2008 and the increase in the costs of production were 
also factors that constituted "unforeseen developments", it later made clear that only the entry of China into the 
WTO and its effect on international trade, together with  the process of tariff reduction that accompanied the 
entry into force of the DR-CAFTA and Central Amer ica-Dominican Republic FTAs, constituted "unforeseen 
developments". 
206 Dominican Republic, reply to Panel question No. 113;  complainants, second written submission, 
paragraph 176. 
207 Definitive Resolution, Exhibit CEGH-9, paragraph 27. 
208 Dominican Republic, first written submission, paragraph 291. 
209 Final Technical Report, Exhibit CEGH-10, page 66.  We believe that in referring to "China's 
incursion into the multilateral trading system", the comp etent authority meant "China's entry into the WTO".  
See:  Dominican Republic, reply to Panel question No. 197. 
210 The Dominican Republic maintains that its negotiators represent the domestic industry in market 
access negotiations, so that the two may be regarded as equivalent  where the foreseeing of particular 
developments is concerned.  Dominican Republic, first written submission, paragraph 293.  However, 
Article XIX:1(a) of the GATT 1994 ma kes it clear that the question to be answered is whether the development 
was unforeseen  or unexpected  for the importing Member .  In this respect, the Appellate Body has pointed out  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 53 
  
  Technical Report does not analyse or explain why, at the time that the Dominican Republic acceded to 
the WTO in 1995, it could not have foreseen the en try of China into the WTO and its effect on 
international trade.  Thus, this statement does not de al with the question of why China's entry into the 
WTO and its effect on international trade could not have been foreseen by the Dominican Republic at 
the time it acceded to  the WTO in 1995. 
7.134  Furthermore, nowhere in the resolutions or in the reports of the competent authority is it 
explained how the increase in imports of polypropyl ene bags and tubular fabric was the result of the 
entry of China into the WTO and of the effect that had on international trade.  In reply to a question 
on this point, the Dominican Republic makes referen ce to Part V of the public version of the Initial 
Technical Report and to Statistical Annex II to th e public version of the Final Technical Report.
211  
The relevant passage of Part V of the Initial Techni cal Report states that "as indicated by FERSAN in 
the application for a safeguard investigation … the increase in imports is determined [ inter alia  by] 
China's entry into the WTO".212  This passage is restricted to a description of arguments submitted by 
the company applying for the investigation and fa ils to show that the competent authority had 
analysed or explained that the increase in imports was a consequence of the unforeseen developments 
in question.  Likewise, Statistical Annex II to th e Final Technical Report contains the "Value of 
imports of tubular fabric and polypropylene bags" from 14 different sources, including China, for the 
period 2006-2009213, but does not explain how these imports were  a consequence of China's entry into 
the WTO and the effect that had on international trade. 
7.135  With regard to the tariff reduction process co mmencing with the entry into force of the 
DR-CAFTA and Central America-Dominican Republic FTAs, the resolutions of the Commission do not contain any findings in this respect;  howeve r, the Dominican Republic cites certain passages in 
the Preliminary Technical Report, in the Final Technical Report and in the final public notice.
214 
7.136  The relevant part of the Final Technical Report states: 
In the opinion of the DEI, the arguments put forward by FERSAN in the preliminary 
stage, particularly in connection with th e process of tariff reduction that followed the 
entry into force of the DR-CAFTA and the Agreements with Central America, 
[….].215 
7.137  This passage describes the arguments put fo rward by the company FERSAN and does not 
demonstrate the existence of unforeseen developments  within the meaning of GATT Article XIX:1(a). 
                                                                                                                                                                     
that the text of Article XIX:1(a) of the GATT 1994 es tablishes that an importing Member has the right to 
impose a safeguard measure "in situations when, as a result of obligations incurred under the GATT 1994, [ that] 
importing Member  finds itself confronted with developments it ha d not 'foreseen' or 'exp ected' when it incurred 
that obligation.".  Appellate Body Report, Korea – Dairy , paragraph 86 (italics added). 
211 Dominican Republic, reply to question No. 114 from the Panel. 
212 Initial Technical Report, Exhibit CEGH-3, pages 20-21 (footnote omitted). 
213 Final Technical Report, Exhibit CEGH-10, page 104. 
214 Dominican Republic, first written submission, paragraph 291;  reply to question No. 114 from the 
Panel.  See also:  Dominican Republic, first written submission, paragraphs 294-295. 
215 Final Technical Report, Exhibit CEGH-10, page 64 (original underlining and brackets). WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 54   
  7.138  As for the Preliminary Technical Report, the relevant part reads as follows: 
IV. ANALYSIS OF IMPORTS AND UNFORESEEN DEVELOPMENTS IN 
TERMS OF ARTICLE XIX OF THE GATT 1994 
… According to FERSAN , the unusual increase in imports was a consequence of 
obligations assumed in the Free Trade Agreement with Central America whose tariff reduction period had been completely used up by 2004, reducing to zero the tariff of 
the countries parties to the Agreement. 
… FERSAN  maintains that the unforeseen development was caused [ inter alia ] by … 
the reduction to zero of the tariff on imports covered by the Central America-Dominican Republic bilateral FTA … 
… 
In the opinion […], FERSAN's arguments, pa rticularly those relating to the tariff 
reduction process that followed the entry into force of the DR-CAFTA and the 
Agreements with Central America, could partially explain the unforeseen 
developments, insofar as the products under investigation fell from tariff rates of 
20 per cent and 14 per cent, respectively, to a zero (0) tariff rate as a result of being in 
Basket A, which carries the obligatio n to reduce the tariff immediately.
216 
7.139  The first two fragments of the citation descr ibe the arguments put forward by FERSAN and 
do not constitute a demonstration of  the existence of unforeseen developments within the meaning of 
Article XIX of the GATT 1994.  Likewise, as the complainants point out217, the use of square brackets 
in the last paragraph of the passage makes it im possible clearly to discern whether the statement 
corresponds to a finding of the competent authority or reflects an argument made by one of the 
interested parties.218  In other words, the description of th e arguments put forward by FERSAN in the 
Preliminary Technical Report is not accompanied by any finding or reasoned conclusion on the part of 
the competent authority. 
7.140  Thus, in their public version, the technical re ports cited by the Dominican Republic do not 
make it possible to establish the findings and conclu sions of the competent authority concerning the 
tariff reduction process that followed the entry into force of the DR-CAFTA and 
Central America-Dominican Republic FTAs as an "unforeseen development".  The Dominican Republic has referred in this respect to the confidential version of the Final Technical 
Report
219, which is said to contain the finding of the comp etent authority with respect to this event as 
an unforeseen development. 
                                                      
216 Preliminary Technical Report, Exhibit CEGH-7, pages 59, 65, 70 and 74 (original emphasis and 
brackets, footnotes omitted). 
217 Complainants, first written submission, paragraph 210. 
218 However, the complainants have not made any cl aim with respect to the treatment of confidential 
information. 
219 Dominican Republic, first written submission, paragraph 292.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 55 
  
  7.141  Article 3.1 of the Agreement on Safeguards states that the competent authorities "shall 
publish a report setting forth their findings and reas oned conclusions reached on all pertinent issues of 
fact and law".  Moreover, according to Article 4.2(c), the competent authorities shall publish 
"promptly, in accordance with the provisions of Article 3, a detailed analysis of the case under 
investigation, as well as a demonstration of th e relevance of the factors examined".  The 
Appellate Body has indicated that "unforeseen developm ents" is one of the pertinent issues of fact that 
must be demonstrated for a safegua rd measure to be validly applied.
220  In view of these provisions, it 
is in the published report of the competent author ity that this Panel must examine whether the 
Dominican Republic provided findings and reas oned conclusions concerning the existence of 
unforeseen developments in accordance with Article XIX:1(a) of the GATT 1994. 
7.142  Moreover, Article XIX:1(a) of the GATT 1994 allo ws a safeguard measure to be applied only 
if, as a result of obligations incurred under the GATT 1994 , an importing Member is confronted with 
an unforeseen development that it did not foresee or expect when it incurred these obligations.  In the 
present case, the argument put forward by FERSAN a ttributing the alleged increase in imports to 
obligations that the Dominican Republic incurred with in the context of regional agreements fails to 
explain how these obligations were related with obligations incurred by the Dominican Republic 
under the GATT 1994. 
7.143  The Dominican Republic has also cited fragments of the final public notice.221  In this respect, 
the complainants argue that the statements  contained in the final public notice are ex post 
explanations.222  In the final public notice, the Commissi on states that "the tax reduction process that 
followed the entry into force of the DR-CAFTA and the Agreements with Central America could 
partially explain the unforeseen developments".223  Therefore, even if the statements contained in the 
final public notice were taken into account, they do not  equate, in the Panel's opinion, to a finding or 
reasoned conclusion on the part of the competent au thority that the tariff reduction process following 
the entry into force of the DR-CAFTA and Centra l America-Dominican Republic FTAs was regarded 
as an unforeseen development.  Mo reover, like the arguments of the company FERSAN cited in the 
technical reports, the statement contained in the fi nal public notice attributes the alleged increase in 
imports to obligations that the Dominican Repub lic incurred under regional agreements and does not 
explain how these obligations were related with obligations incurred by the Dominican Republic 
under the GATT 1994.224 
7.144  To sum up, neither the resolutions nor the technical reports on which they are based nor the 
final public notice to which the Dominican Republic  has referred contain a reasoned and adequate 
explanation by the competent authority of how the entry of China into the WTO and the effect that 
had on international trade or the process of tariff reduction that followed the entry into force of the 
                                                      
220 Appellate Body Report, Korea – Dairy , paragraph 85. 
221 Dominican Republic, reply to Panel question No. 114.  See also, complainants, first written 
submission, paragraph 225. 
222 Complainants, first written submission, paragraph 225. 
223 Notice, General Safeguard Investigation of Tubular Fabric and Polypropylene Bags 
(6 October 2010), Exhibit CEGH-11. 
224 The Panel also notes that the final public notice cited by the Dominican Republic itself states that its 
purpose is to make public certain information contained in the Definitive Resolution.  Notice, General Safeguard 
Investigation of Tubular Fabric and Polypropylene Bags (6 October 2010), Exhibit CEGH-11.  In other words, 
there is no reason to believe that the final public notice could contain findings or reasoned conclusions different 
from or additional to those contained in the Definitive Resolution.  See also, Dominican Republic, replies to Panel questions Nos. 29 and 34;  Law 1-02 , Exhibit RDO-11, Article 36;  Regulations implementing Law 1-02 , 
Exhibit RDO-26, Article 271. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 56   
  DR-CAFTA and Central America-Dominican Rep ublic FTAs constituted an unforeseen development 
within the meaning of Article XIX:1(a) of the GATT 1994.
225 
(ii) "Effect of the obligations incurred under the GATT 1994" 
7.145  With respect to "the obligations incurred under the GATT", in Argentina – Footwear (EC)  the 
Appellate Body explained the meaning of the expression "as a result of … the effect of the obligations incurred by a contracting party under this Ag reement, including tariff concessions" as follows: 
With respect to the phrase "of the effect of the obligations incurred by a Member 
under this Agreement, including tari ff concessions …", we believe that this phrase 
simply means that it must be demonstrated , as a matter of fact, that the importing 
Member has incurred obligations under th e GATT 1994, including tariff concessions .  
Here, we note that the Schedules annexed to the GATT 1994 are made an integral 
part of Part I of that Agreement, pursuant to paragraph 7 of Article II of the 
GATT 1994.  Therefore, any concession or commitment in a Member's Schedule is 
subject to the obligations contained in Article II of the GATT 1994.
226 
7.146  From the above, in the opinion of the Panel, it is clear that as a matter of fact the importing 
Member must have incurred obligations under th e GATT 1994, for example, tariff concessions, with 
respect to the product in question.  It then falls to the importing Member to identify those obligations 
incurred under the GATT 1994 that are linked with the increase in imports causing serious injury to 
its domestic industry.  These findings  and conclusions must be reflected in the report of the competent 
authority. 
7.147  All the parties agree that, under its bound tari ff schedule, the Dominican Republic granted a 
tariff concession of 40 per cent ad valorem  on the products of tariff lines 5407.20.20 and 6305.33.90.  
There is therefore no doubt that, as a matter of f act, the Dominican Republic incurred obligations 
under the GATT 1994 with respect to tubular fabric a nd polypropylene bags.  In any event, the Panel 
must consider whether the Dominican Republic, in its report, identified these obligations, or other 
obligations incurred under the GATT 1994, as obligati ons linked with the increase in imports said to 
have caused serious injury to its domestic industry. 
7.148  The Definitive Resolution of the Commission does not make reference to this point.  The 
relevant passage in the Preliminary Technical Report, to which the Dominican Republic refers, 
indicates only that the DEI established the following: 
Nevertheless, [……] in relation to the fact that the Dominican Republic is not making 
efficient use of the MFN rate for tariff lines 6505.33.10 and 6305.33.90 to which a 20 per cent rate is being applied, while th at for subheading 5407.20.20 is 14 per cent, 
with a WTO bound rate of 40 per cent, on the basis of which they conclude that this 
                                                      
225 In view of this finding, the Panel does not cons ider it necessary to address the argument of the 
complainants that the process of tariff reduction begi nning with the entry into force of the DR-CAFTA and 
Central America-Dominican Republic FTAs could not have been a development unforeseen by the 
Dominican Republic. 
226 Appellate Body Report, Argentina – Footwear (EC) , paragraph 91 (original brackets, italics added).  
See also, Appellate Body, Korea – Dairy , paragraph 84.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 57 
  
  was a unilateral decision by the Dominican Republic, not to make use of the 
WTO bound rate as it was legitimately entitled to do.
227 
7.149  It is not clear from this passage that the comp etent authority considered the tariff concession 
with respect to the products in question to be the obligation of the Dominican Republic under the 
GATT 1994 that caused the alleged increase in the impor ts in question.  This passage does not contain 
any finding in this respect.228  Consequently, and in the absence of  any indication in the resolutions of 
the Commission, or in any other relevant document, it is not possible to conclude  that the report of the 
competent authority contains a reasoned and adeq uate explanation of how  the Dominican Republic 
incurred obligations under the GATT with respect to  tubular fabric and polypropylene bags, within 
the meaning of Article XIX:1(a) of the GATT 1994.  In the light of this finding, the Panel does not consider it appropriate to address the additional argument of the complainants that neither did the 
Commission determine whether the alleged increase in imports was a consequence of the relevant 
obligations under the GATT 1994. 
(iii) Conclusion 
7.150  For the reasons set forth above, the Panel conclud es that the complainants have made the case 
that the Commission's published report does not contai n any explanation with respect to the existence 
of unforeseen developments and the effect of the GATT 1994 obligations, as required by GATT Article XIX:1(a).  In not providing such an explanation, the competent authority has failed to 
comply both with the obligation contained in Ar ticle 3.1, last sentence, of the Agreement on 
Safeguards - in the sense of setting forth in its pu blished report its findings and reasoned conclusions 
reached on all pertinent issues of fact and law - and with the obligation containe d in Article 4.2(c) of 
the Agreement on Safeguards, in the sense of accomp anying its published report  with a demonstration 
of the relevance of the factors examined.  Moreove r, in imposing a safeguard measure without having 
provided any explanation with respect to the existe nce of unforeseen developments and the effect of 
the GATT 1994 obligations, in a manner inconsiste nt with GATT Article XIX:1(a), the competent 
authority also failed to comply with the obligation contained in Article 11.1(a) of the Agreement on 
Safeguards.  Consequently, with respect to  the provisional and definitive measures, the 
Dominican Republic acted inconsistently with its obligations under Article XIX:1(a) of the 
GATT 1994 and Articles 3.1, last sentence, 4.2(c)  and 11.1(a) of the Agreement on Safeguards. 
7.151  In connection with this claim, the complainants  also made certain consequential claims, with 
respect to which no specific arguments were set fort h;  consequently, even on the assumption that all 
these claims were properly brought before it
229, the Panel will refrain from making findings in this 
respect.230 
7.152  It having been concluded that the Dominican Republic acted in a manner inconsistent with 
obligations under the covered ag reements with regard to th e determination of unforeseen 
developments and the effect of GATT obligations, in  principle it would not be necessary for the Panel 
                                                      
227 Preliminary Technical Report, Exhibit CEGH-7, page 74 (original brackets). 
228 The confidential version of this passage confirms  that the competent authority did not refer to the 
tariff concession with respect to the products in question as an obligation of the Dominican Republic under the 
GATT 1994 that produced the alleged increase in the impo rts in question.  See:  Pr eliminary Technical Report 
(confidential version), Exhibit RDO-9, page 86. 
229 See paragraphs 7.98-7.111 of the present Report. 
230 The Panel notes in this respect that in Chile – Price Band System , the Appellate Body observed that 
a panel cannot make findings on matters that are not before it because the complainant has not articulated a 
claim or submitted arguments.  See:  Appellate Body, Chile – Price Band System , paragraph 173. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 58   
  to make any finding concerning the other substantiv e claims advanced by the complainants with 
respect to the provisional and definitive measures.  Nevertheless, taking into account the 
circumstances of the present case and with the aim of assisting the parties to arrive at a positive 
solution to the dispute, the Panel will consider the claims of the complainants. 
2. Whether the competent authority acted inconsistently with obligations under the 
covered agreements in defining the domestic industry 
(a) Main arguments of the parties 
(i) Complainants 
7.153  The complainants argue that the Commission defined the domestic industry in a manner 
inconsistent with Articles 4.1(c), 3.1, last sentence,  and 4.2(c) of the Agreement on Safeguards.  They 
therefore claim that the determinations of ser ious injury and causality , for the purposes of the 
provisional and definitive measures, are inconsistent with Articles 2.1, 4.1(a), 4.1(c), 4.2(a), 4.2(b) 
and 4.2(c) of the Agreement on Safeguards and with Article XIX:1(a) of the GATT 1994, as well as 
with Article 6 of the Agreement on Safeguard s with respect to the provisional measure.
231 
7.154  The complainants assert that, in defining th e domestic industry, the Commission made 
two basic errors:  (i) it failed to establish adequa tely and reasonably that the imported and domestic 
products were like or directly competitive;  a nd (ii) it improperly excluded producers of domestic 
products directly competitive with  the product under investigation.232 
7.155  With respect to the first aspect of their claim, the complainants make two points.  Firstly, the 
complainants argue that the Commission did not de fine the product under investigation in a manner 
consistent with Articles 3.1, last sentence,  and 4.2(c) of the Agreement on Safeguards.233  M o r e  
specifically, they maintain that, d espite the questions and factual in formation put forward by various 
interested parties pointing to the fact that tubular  fabric and polypropylene bags are separate products, 
the Commission persisted in treating them  as a single product under investigation.234  They assert that 
the only reason for making this determination was the interpretation of the customs classification 
based on Additional Note 2 to Chapter 63 of the Do minican Republic's Customs Tariff.  They also 
claim that, although the Commission's interpretation would appear to be underlain by the presumption 
that a tubular fabric is equivalent to an incomplete  or unfinished bag, that presumption is not to be 
found in any of the relevant reports or resoluti ons and neither is there any evidence from which it 
might be inferred.  In addition, they point out th at, despite the fact that the determination of the 
competent authorities was questioned by the Directorate-General of Customs, the authorities took advantage of the statement made by that agency (t hat "[Additional Note 2] being a requirement of the 
national legislation, the customs has to proceed acco rdingly, until such time as the competent courts 
                                                      
231 Complainants, first written submission, paragraphs 75-76 and 193-194;  second written submission, 
paragraphs 70 and 167-168. 
232 Complainants, first written submission, paragrap h 75;  second written submission, paragraph 71. 
233 Complainants, first written submission, paragraph 119. 
234 The complainants point out that the Commission stated its position without offering an explanation 
as to why the questions raised by various interested parties were not relevant or had no basis in fact or law and 
without addressing the alternative interpretation that the products were different.  The complainants add that 
neither was there any detailed analysis of why it was cons idered appropriate to treat the products as the same 
product, despite their having different characteristics.   Complainants, first written submission, paragraphs 109 
and 111.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 59 
  
  or a law dispose otherwise") to treat the products  in question as the same product, without producing 
any additional item of evidence for dete rmining the identity of the products.
235 
7.156  Secondly, the complainants assert that the Commission failed to establish that the imported 
and domestic products were directly competitive.  In support of this assertion, the complainants 
submit five arguments.  First, they affirm that the domestic product was improperly defined for the 
purposes of determining likeness or direct competitiven ess.  They point out that the description of the 
domestic product submitted by the applicant FERSAN was adopted and that therefore the domestic 
product was confined to that produced starting from  a certain phase in the production process , 
without setting out findings or expl anations regarding the suggested lim itation.  They add that this led 
to the exclusion of the domestic product manufactured starting from a phase distinct from the 
obtaining of the resin (for example, polypropylen e bags manufactured from tubular fabric, domestic 
or imported, produced by so-called "assemblers" or "converters").  According to the complainants, the 
purpose of defining the domestic product is to dete rmine likeness or direct competitiveness and that 
determination must be based on products  and not on production processes  linked with the products.236 
7.157  Second, the complainants maintain that th e Commission failed to demonstrate that the 
imported products and the domestic products were directly compe titive.  They argue that the reports 
and resolutions contain mere a ffirmations of the alleged comp etitive relationship between the 
two products (or descriptions of the relevant inform ation available), without providing a reasoned and 
adequate explanation in this respect.237 
7.158  Third, the complainants point out that there is an asymmetry in the definition of the domestic 
and imported products that makes the comparison of  their likeness or direct competitiveness itself 
asymmetrical and inadequate:  whereas the domestic product comprises tubular fabric and polypropylene bags produced from virgin resin, the product under investigation comprises tubular 
fabric and polypropylene bags regardless of whethe r they were produced from virgin resin or not.  
They conclude that, although the Agreement on Safeguards does not require the existence of 
symmetry in the strict sense of the word, th ere must at least exist a correspondence of likeness  or 
direct competitiveness  between the product under investiga tion and the domestic product, since 
otherwise the domestic industry, the injury, the in crease in imports and the causal relationship could 
not be determined.
238 
7.159  Fourth, the complainants claim that the Commis sion treated tubular fabric and polypropylene 
bags as part of the same domestic industry without having demonstrated that the two products, as an 
input and as final goods, respectively, were competitive w ith each other.  In this connection, they note 
                                                      
235 Complainants, first written submission, paragraphs 94-119;  second written submission, 
paragraphs 85, 105, 107-114;  reply to Panel question No. 104;  opening statement at the first meeting of the Panel, paragraph 68.  The complainants assert that the Di rectorate-General of Customs never stated that the bags 
and the fabric were the same product or that they were like or directly competitive products.  Complainants, first 
written submission, paragraph 118. 
236 Complainants, first written submission, paragraphs 129-132 and 135. 
237 See, for example, complainants, first written submission, paragraphs 136-143;  second written 
submission, paragraphs 148-151. 
238 Complainants, first written submission, paragraphs 144-150;  second written submission, 
paragraphs 153-157. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 60   
  that the Appellate Body has found that "inputs can be  included in the definition of 'domestic industry' 
only if they are 'like' the end-products or 'directly competitive' with them".
239 
7.160  Fifth, the complainants claim that the Commission determined the directly competitive 
products without following the order of analysis laid down in Article 4.1(c) of the Agreement on Safeguards, as described by the Appellate Body.  In this connection, they point out that in 
United States – Lamb , the Appellate Body determined that, be fore the scope of a domestic industry 
can be established it is first necessary to identify the products which are like or directly competitive  
with the imported product and that only when those pr oducts have been identified is it possible then to 
identify their producers .  In the present case, they assert that the Commission first defined FERSAN 
as the domestic industry and then defined the di rectly competitive product under investigation.
240 
7.161  With respect to the second aspect of their claim,  the complainants argue that the Commission 
wrongly excluded certain producers from the definition of  the domestic industry.  In particular, they 
assert that, in considering the producers on the b asis of their production process, the Commission 
excluded specific categories of producers out of hand, namely, assemblers  and converters , which 
manufacture polypropylene bags from tubular fabr ic.  They maintain that the only relevant 
consideration for identifying the producers  is that the individual or enterprise should manufacture the 
"like or directly competitive domestic product", the production processes  being irrelevant where the 
ordinary meaning of the term producers is concerned.  They add that, even under its own 
interpretation of the term producers , the Commission wrongly excluded producers that were 
producing the domestic product, name ly, Filamentos del Caribe (FIDECA) and Textiles TITÁN.  In 
this connection, they point out that Article 4.1( c) of the Agreement on Safeguards and its context 
make it clear that domestic producers of the like or directly competitive product may not be excluded.
241 
(ii) Dominican Republic 
7.162  The Dominican Republic maintains that the defi nition of the domestic i ndustry adopted by the 
competent authority is consistent with Article 4. 1(c) of the Agreement on Safeguards and that the 
reports and resolutions of that authority contai n the determinations necessary in this respect.242 
7.163  The Dominican Republic asserts that the complainan ts have not offered any legal analysis of 
the provisions of the Agreement on Safeguards that  might prevent it from being concluded that the 
tubular fabric and polypropylene bags can be treated  as a single product under investigation.  It also 
points out that similar claims within the context of the Anti-Dumping Agreement have been rejected by various panels as the Agreement gives no guidance on how to determine the product under investigation and suggests that the Panel should also  conclude that there are no applicable provisions 
within the context of safeguard inv estigations.  In addition, it asserts  that the explanations given by 
the Commission concerning the product under investig ation are adequate and reasoned and that, in 
this respect, the questions of the parties with an interest in the investigation were given timely 
consideration.  It points out that the non-adoption of  the alternative interpretation proposed by various 
                                                      
239 See, for example, complainants, first written submission, paragraphs 151-154 (citing 
Appellate Body Report, US – Lamb , paragraph 90). 
240 Complainants, first written submission, paragraphs 155-159;  second written submission, 
paragraphs 85, 97-98 and 159-165 (where the Appellate Body Report in US – Lamb , paragraph 87, is cited). 
241 Complainants, first written submission, paragraphs 160-192;  second written submission, 
paragraph 85. 
242 Dominican Republic, first written submission, paragraph 252.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 61 
  
  interested parties does not affect the validity of th e explanation of the determination, and that the 
complainants themselves have not suggested that the likeness of or competitive relationship between 
the products that make up the product under investiga tion must be demonstrated.  Furthermore, it 
asserts that there is no basis in the rules for re quiring a reasoned and adequate explanation "of the 
tariff classification considerations on which [to base the] decision to treat the tubular fabric and 
polypropylene bags as a single imported product subject  to investigation" and points out that, in any 
case, the complainants have failed to explain how su ch an obligation might arise out of Articles 3.1 
and 4.2(c) of the Agreement on Safeguards.
243 
7.164  Moreover, the Dominican Republic states that  the like and directly competitive domestic 
product was defined as polypropylene bags and tubular fabric.  It asser ts that both the reports and the 
resolutions contain adequate explanations w ith respect to the likeness of the product under 
investigation and the domestic product.  Without prejudice to the above, it considers it obvious that 
the product under investigation and the domestic product are like products which are therefore 
directly competitive, since the definitions of both are identical in scope.  It  also claims that the 
production process did not form part of the definition of the like domestic product:  the fact that the domestic product was defined as tubular fabric and polypropylene bags manufactured from resin only 
indicates a physical characteristic that was also app licable to the product under investigation.  In its 
opinion, the production process played an important ro le in identifying the domestic industry, as a 
criterion for excluding certain producers, and not fo r defining the like domestic product.  This is 
supported by considerations contained in the Fi nal Technical Report from which it may be inferred 
that the DEI took into account, for the purposes of determining the domestic industry, the firms which 
manufacture polypropylene bags from tubular fabric.  It therefore asserts that, contrary to what the 
complainants suggest, polypropylene bags manufact ured from tubular fabric were not excluded from 
the definition of the domestic product.
244 
7.165  At the same time, the Dominican Republic poi nts out that the complainants have not 
identified the legal basis for their contention that th ere must be symmetry between the like or directly 
competitive product and the product under investigati on and that none of the provisions they invoke 
contains this alleged obligation.  Likewise, it expresses the opinion that, in US – Lamb , the 
Appellate Body did not establish that it had to be demonstrated that the products that make up the 
domestic industry are like to each other.  Moreove r, the Dominican Republic points out that, as 
distinct from that case, in the present case the scope of the domestic product (tubular fabric and 
polypropylene bags) is identical to that of th e product under investigation (tubular fabric and 
polypropylene bags).  The Dominican Republic al so asserts that the Agreement on Safeguards does 
not require a particular order or mode of analys is in defining the directly competitive product and 
notes that in US – Lamb  the Appellate Body only made clear what was the order that would be 
followed in that case, without stipulating any obli gatory order of analysis or invalidating other 
possible logical orders.  It asserts that in an y case the Commission's analysis followed a logical 
order.245 
                                                      
243 See, for example, Dominican Republic, first written submission, paragraph 145;  second written 
submission, paragraphs 54-56;  opening statement at the second meeting of the Panel, paragraphs 33-34. 
244 See, for example, Dominican Republic, second written submission, paragraphs 57-64;  opening 
statement at the second meeting of  the Panel, paragraphs 37-40. 
245 See, for example, Dominican Republic, first written submission, paragraphs 163-182, 193-198, 
205-206, 209-210;  second written submission, paragraph 68;  opening statement at the second meeting of the 
Panel, paragraphs 41-42 (where the Appellate Body Report in US – Lamb , paragraphs 87-88, is cited). WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 62   
  7.166  Finally, the Dominican Republic maintains that  the authorities did not exclude a priori any 
category of producer of the like or directly comp etitive product, noting that the Commission took as 
its starting point all the producers identified by FERSAN in its domestic producer form.  With respect 
to the company TITÁN, the Dominican Republic st ates that, as its production from resin is minimal 
and it mainly converts imported tubular fabric, the Commission excluded it from the domestic industry under the authority of Article 26 of Law 1-02 , which permits (although it does not require) 
the exclusion of producers that are importers of the product under consideration.  It notes that the fact 
that Article 4.1(c) of the Agreement on Safeguard s (as distinct from the Agreement on Subsidies and 
Countervailing Measures and the Anti-Dumping Ag reement) does not expressly refer to the 
possibility of excluding importers does not have dispositive significance.  It also points out that the context of Article 4.1(c) of the Agreement on Safe guards, particularly Articles 4.2(a) and 4.2(b), 
supports the possibility of such an exclusion, since these provisions require an analysis of injury and 
causality based on reliable data not obtainable fro m information supplied by companies that both 
produce and import the product under consideration.  Where the company FIDECA is concerned, the 
Dominican Republic points out that the Commission concluded that it did not produce the like domestic product, as it only converted imported or loca lly purchased tubular fabric into bags.  Citing 
the Panel Report in EC – Salmon (Norway) , it maintains that the Commission was able to exclude 
certain companies whose level of activity was so lo w that they were not managing to "produce" the 
like product.  It likewise maintains that the exclusion of FIDECA is also consistent with Article 4.1(c) 
of the Agreement on Safeguards.
246 
(b) Main arguments of the third parties 
(i) Colombia 
7.167  Colombia rejects the Dominican Republic's ar gument that there are no clear criteria for 
defining the "product under investigation".  It points  out that the second paragraph of the preamble to 
the Agreement on Safeguards states that the Agre ement clarifies and reinforces Article XIX of the 
GATT entitled "Emergency Action on Imports of Particular Products "247 and that this suggests that 
the product it is intended to investigate should be delimited and established using some sort of 
criterion.  Moreover, it argues that the term product  in the singular in Article 2.1 of the Agreement on 
Safeguards denotes that the scope of the product under i nvestigation is limited.  It also considers that 
the product under investigation could be made up of  several products, provided that it can be shown 
that they are like or directly competitive, since otherwise it would not be possible to make this finding with respect to the domestic and imported products, as required by Article 4.1(c) of the Agreement on 
Safeguards.
248 
(ii) United States 
7.168  The United States argues that in US – Lamb , the Appellate Body concluded that, while the 
focus of the like or directly competitive product in quiry must be on the identification of the product, 
the production process may also provide informati on on the like or directly competitive nature 
between products.  The United States adds that where a question might arise as to whether 
two products are separate, it might be relevant to inquire into the production processes for those 
                                                      
246 See, for example, Dominican Republic, second written submission, paragraphs 71-80;  opening 
statement at the second meeting of the Panel, paragraphs 43-47 (where the panel reports in US – Wheat Gluten , 
paragraphs 8.54-8.56, and EC – Salmon (Norway) , footnote 289, paragraph 7.115, are cited). 
247 Colombia, third party written submission, paragraph 31 (emphasis added by Colombia). 
248 Colombia, third party written submission, paragraphs 25-36.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 63 
  
  products.  In its opinion, it is possible to envisage a scenario in which the production process is highly 
relevant to the determination of the like or directly competitive nature between products, due to the 
qualities that the process imparts to the product.
249 
(iii) Panama 
7.169  In Panama's opinion, in defining both the input (tubular fabric) and the end-product 
(polypropylene bag) as a single product, the Domini can Republic failed to prove that the two products 
were directly competitive or like products, as establis hed by the Appellate Body, and thus defined the 
domestic industry in a manner inc onsistent with Articles 4.1(c)  and 2.1 of the Agreement on 
Safeguards.  It also believes that the Dominican Republic failed to consider the provisions of the 
Agreement on Safeguards inasmuch as it excluded from the domestic industry other producers that 
qualified at the same level as those assessed in th e investigation and, moreover, included both the 
producers of the inputs and the producers of the end-product.250 
(iv) European Union 
7.170  According to the European Union, the absence of a definition of product under investigation 
in the Agreement on Safeguards indicates the intention of the negotiators to l eave Members with wide 
discretion.  At the same time, it considers that, insofar as the parallelism between the product under 
investigation and the like or directly competitiv e products (in each case including both inputs and the 
final product) is maintained, the definition of domes tic industry will conform to Article 4.1(c) of the 
Agreement on Safeguards, without the need to estab lish that both inputs and the final product are like 
or directly competitive products.  It adds that, in or der to consider whether a particular company is a 
producer , the focus should lie on the essential nature of  the business activities of that enterprise, such 
as manufacturing an article or bringing a thing into existence.  Thus, if the company's main activity 
consists in production, the sole fact that it imports  the relevant product should not lead to its being 
excluded from the definition of domestic industry.  On the other hand, it is of the opinion that a 
company which is merely an importer would not qualify as a producer  and could be excluded from 
the definition of domestic industry.251 
(c) Assessment of the Panel 
7.171  The claims of the complainants concerning the definition of the domestic industry, with 
respect to the provisional and definitive measures, comprise various related arguments and factual 
situations.  The relevant provisions under which th e complainants assert the existence of the alleged 
infringements are Articles 4.1(c), 3.1, last senten ce, and 4.2(c) of the Agreement on Safeguards. 
7.172  In this dispute, the product under investigation was defined by the competent authority as 
"polypropylene bags of strip or the like and wove n fabric of synthetic filament yarn, manufactured 
from strip or the like";  the Commission also decided that it would observe the trends in the 
two products in conjunction.252  The domestic product was defined as  "polypropylene bags made from 
                                                      
249 United States, third party written submission, paragraphs 7-8. 
250 Panama, third party written submission, paragraphs 18-22. 
251 European Union, third party written submission, paragraphs 17-25. 
252 Initial Resolution, Exhibit CEGH-2, page 5;  Initial Technical Report, Exhibit CEGH-3, pages 5-6;  
Preliminary Technical Report, Exhib it CEGH-7, page 8.  See also, Preliminary Resolution, Exhibit CEGH-5, 
paragraph 11.  Jumbo sacks, big bags, super sacks and cont ainers and polyethylene bags did not form part of the 
definition.  Preliminary Resolution, Exhibit CEGH-5,  paragraphs 32 and 34;  definitive Resolution, 
Exhibit CEGH-9, paragraphs 20-23. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 64   
  tubular woven fabric manufactured starting from r esin and tubular woven fabr ic made of synthetic 
filaments manufactured starting from virgin resin".
253  The Commission determined that the product 
under investigation and the like domestic product were directly competitive products.254  T h e  
Commission considered that the domestic industry consisted of a single company, the applicant 
FERSAN.255  The Commission did not consider the comp any FIDECA to be part of the domestic 
industry due to the fact that, in its opinion, "it does not currently produce the product under investigation but obtains the bag from impor ted or locally purchased tubular fabric".
256  Nor did the 
Commission regard the company Textiles TITÁN as part of the domestic industry, because of its 
imports of tubular fabric from which it manufact ured a significant proportion of its output of 
polypropylene bags.257 
7.173  Article 4.1(c) of the Agreement on Safeguards,  which defines the domestic industry for the 
purposes of the Agreement, stipulates that: 
[I]n determining injury or threat thereof,  a "domestic industry" shall be understood to 
mean the producers as a whole of the like or directly competitive products operating within the territory of a Member, or t hose whose collective output of the like or 
directly competitive products constitutes a major proportion of the total domestic 
production of those products. 
7.174  Thus, the text of Article 4.1(c) of the Agreement on Safeguards establishes the elements for 
the definition of the domestic industry.  Firstly, Article 4.1(c) stipulates that the domestic industry  
must be defined with reference to the producers of the like or directly competitive products , so that the 
key to defining the domestic industry and, ultimately,  the producers of which it is composed, is the 
like or directly competitive products .
258  Secondly, Article 4.1(c) states that the domestic industry thus 
defined  must consist of the producers as a whole  of the like or directly competitive product or, 
alternatively, of those producers of that product whose collective output constitutes a major 
proportion of the total domestic production  of the product in question. 
7.175  The complainants have argued that the Commi ssion ignored fundamental aspects of the 
determination of the like or directly competitive products  and thus failed to define the domestic 
industry properly.  In support of this claim, the co mplainants make two main arguments:  (i) that the 
Commission did not properly define the product under investigation;  and (ii) that the Commission did 
not demonstrate that the imported and domestic produc ts were directly competitive.  The Panel will 
examine each of these arguments in turn. 
                                                      
253 Preliminary Resolution, Ex hibit CEGH-5, paragraph 26. 
254 Initial Resolution, Exhibit CEGH-2, page 5;  Preliminary Resolution, Exhibit CEGH-5, 
paragraph 35;  definitive Resolution, Exhibit CEGH-9, paragraph 23. 
255 Initial Resolution, Exhibit CEGH-2, pages 5 and 8;  Preliminary Resolution, Exhibit CEGH-5, 
paragraph 13;  definitive Resolution, Exhibit CEGH-9, paragraph 18.  See also, Initial Technical Report, Exhibit CEGH-3, pages 13-14;  Preliminary Technical Report, Exhibit CEGH-7, page 58;  Final Technical 
Report, Exhibit CEGH-10, page 46. 
256 Preliminary Technical Report, Exhibit CEGH-7, page 58;  Final Technical Report, Exhibit 
CEGH-10, page 46.  See also, Initial Tec hnical Report, Exhibit CEGH-3, page 14. 
257 Preliminary Technical Report, Exhibit CEGH-7, pages 54-58;  Final Technical Report, 
Exhibit CEGH-10, pages 43-47.  See also, Initial Technical Report, Exhibit CEGH-3, page 14;  definitive Resolution, Exhibit CEGH-9, paragraph 18. 
258 Appellate Body Report, US – Lamb , paragraph 84.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 65 
  
  7.176  With respect to the first argument, the compla inants state that their claim concerning the 
product under investigation relates to the lack of adequate and reasoned expl anations in the published 
report and not to the determination of the product under investigation per se .
259 
7.177  As the complainants point out, the Agreement on Safeguards "does not contain guidelines on 
how to define the product under investigation".260  This Agreement refers only in general terms to a 
product  and stipulates that the safeguard measures must  be applied to the "p roduct being imported" 
irrespective of its source.261  There is no provision in the Agreement on Safeguards that governs the 
selection, description, analysis or determination of  this "product".  Although, for the purpose of 
determining the scope of an investigation, the competent authority must define the product under 
investigation, the Panel does not consider that  the Agreement on Safeguards requires a detailed 
explanation of that definition.262 
7.178  As previously noted, the Initial Resoluti on defines the product under investigation as 
"polypropylene bags of strip or the like and wove n fabric of synthetic filament yarn, manufactured 
from strip or the like", which enter the Dominican Republic under tariff subheadings:  6305.33.10;  
6305.33.90 and 5407.20.20.263  The same Resolution, like the Initial and Preliminary Technical 
Reports, indicates the reasons why it was determin ed that the trends in polypropylene bags and 
tubular fabric would be observed "in conjunction".  In this respect, the Initial Technical Report points 
out that: 
According to FERSAN, imports of polypropyl ene tubular fabric are equivalent to 
importing polypropylene bags, because the end- product is the same and in accordance 
with General Interpretative Rule 2(a) it is cl ear that "any referen ce in a heading to an 
article includes a reference to that article incomplete or unfinished, provided that the 
latter has the essential character of the comple te or finished article, as well as to an 
article treated as complete or finished by virtue of the preceding provisions when 
presented disassembled or unassembled".  Duri ng this phase of the investigation the 
DEI will observe the trends in polypropyle ne bags and tubular fabric taken in 
conjunction.264 
7.179  In the Preliminary Technical Report, the DEI adds that: 
In this connection, several consultations we re held with the Directorate-General of 
Customs (DGA), in one of which, on 3 November 2009, the DGA made clear that 
"tubular fabrics for bags obtained from polyet hylene or polypropylene mesh    are 
classified in the same subheadings as specified in the preceding paragraph, by 
application of Additional Note 2 to Chapter 63 of the Customs Tariff, Law No. 146-00 
and its amendments, even if they are not complete bags ". 
                                                      
259 See, for example, complainants, second written submission, paragraphs 72, 104 and 106-107. 
260 Complainants, reply to Panel question No. 104. 
261 Articles 2.1 and 2.2 of the Agreement on Safeguards. 
262 In this connection, the Panel notes that in the context of the Anti-Dumping Agreement, which like 
the Agreement on Safeguards does not contain any provision governing the determination of the product under 
consideration, several panels have expressed the opinion that although an investigating authority must make a 
decision as to the scope of the investigation, and give notice of the product involved, it is not required to make 
an elaborated determination in th at regard.  See Panel Reports in EC – Salmon (Norway) , paragraph 7.57, and 
EC – Fasteners (China) , paragraph 7.268. 
263 See paragraph 1.172 of the present Report. 
264 Initial Technical Report, Exhibit CEGH-3, pages 5-6 (footnote omitted). WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 66   
  Subsequently, in a communication dated 25 November 2009, the DGA reiterated 
"…… it being a requirement of the national legislation, the customs has to proceed 
accordingly, until such time as the compet ent courts or a law dispose otherwise ".  In 
the light of all of the above, during this phase of the investigation the trends in polypropylene bags and tubular fabr ic will be observed in conjunction.
265 
7.180  The DEI also analysed various arguments put forward by interested parties concerning the 
definition of the produc t under investigation.266  With respect to the argum ents advanced by several 
parties to the effect that tubular fabric and polypr opylene bags cannot be considered to be the same 
product due to their nature, use and end markets, th e DEI referred to considerations of a customs 
nature on which it had based the determinati on to treat the products in conjunction.267 
7.181  The complainants claim that the Commission's explanation was not adequate or reasoned.  
They base their assertion on the premise that the product under investigation can only include 
products that are "like" and point out in this resp ect that the facts of the investigation show that 
tubular fabric and polypropylene bags are not the same product.268  Nevertheless, the complainants 
fail to identify the legal impediments that shou ld have prevented the competent authorities from 
considering tubular fabric and pol ypropylene bags as part of th e product under investigation and 
observing the trends in the two products "in conjunction".  The complainants assert that "it has not been suggested that there must be a comparison of likeness or competitive relationship between the 
input and the end-product for the purpose of defi ning the imported product under investigation".
269  
However, the premise on which the argument of the complainants is based is that the Commission 
was under the obligation to provide an explanation of why two separate products were treated as the 
product under investigation in the same proceeding.  The Panel cannot find a basis for this premise in 
the text of the Agreement on Safeguards.  The comp lainants have not identified any provision in the 
Agreement that restricts the inclusion of imported pr oducts within the scope of an investigation solely 
to those products that are like or directly competitive  with each other.  As already noted, the 
Agreement on Safeguards does not impose specific oblig ations with respect to the definition or the 
scope of the product under inves tigation.  In these circumstances, the Panel considers that the 
complainants have failed to show why the explan ations of the competent authority concerning the 
product under investigation were not adequate and reasoned. 
7.182  In conclusion, the Panel considers that the complainants have failed to show that, by 
including polypropylene bags and tubular fabric in  the definition of the product under investigation, 
the Commission acted inconsistently with Articles 3.1,  last sentence, and 4.2(c) of the Agreement on 
Safeguards, or that, consequently, the definitio n of the domestic industry was in this respect 
inconsistent with Articles 4.1(c), 3.1, last sente nce, and 4.2(c) of the Agreement on Safeguards. 
7.183  With respect to the second argument of the co mplainants, namely, that the Commission failed 
to show that the imported and domes tic products were directly compe titive, the first question to arise 
                                                      
265 Preliminary Technical Report, Exhibit CEGH-7, page 8 (original italics;  footnotes omitted).  The 
Commission's Initial Resolution and its Preliminary Resolution also mention the consultations held by the Commission with the Directorate-General of Customs (DGA) in this respect, as well as the relevant 
clarifications provided by FERSAN.  Initial Resolution,  Exhibit CEGH-2, pages 2-5;  Preliminary Resolution, 
Exhibit CEGH-5, pages 4-5. 
266 Final Technical Report, Exhibit CEGH-10, page 42;  Preliminary Technical Report, Exhibit 
CEGH-7, page 31. 
267 Preliminary Technical Report, Exhibit CEGH-7, page 31. 
268 See, for example, complainants, firs t written submission, paragraphs 109-118. 
269 Complainants, reply to Panel question No. 94.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 67 
  
  is whether the domestic product was inadequately defined for the purposes of determining likeness or 
direct competition.  The complainants assert that by restricting the scope of the directly competitive 
domestic product to a particular phase in the production process  the competent authorities excluded 
the domestic product manufactured from an input with a degree of processing different from that of resin, namely, polypropylene bags manufactured from tubular fabric.
270 
7.184  The Panel will first present its conclusions regardi ng the relevant facts of the determination of 
likeness or direct competition between the products in  question.  As already noted, the product under 
investigation was defined as "polypropylene bags of strip or the like and woven fabric of synthetic 
filament yarn, manufactured from strip or the like".271  On the basis of the information supplied by the 
applicant FERSAN, the Commission's Preliminary R esolution refers to the like domestic product, as 
"polypropylene bags made from tubular woven fabr ic manufactured starting from resin and tubular 
woven fabric made of synthetic filaments manufactured starting from virgin resin".272  T h e  
Commission considered that the product under inves tigation and the domestic product were "directly 
competitive".273  In this connection, during the presen t proceeding, the Dominican Republic has 
pointed out that the Final Technical Report and the Definitive Resolution establish that the product 
under investigation and the dom estic product were like and therefore directly competitive.274 
7.185  In its Definitive Resolution, the Commission determined: 
Once the description of the product, the ph ysical characteristics, the technical 
specifications and the samples provided both by FERSAN and by the importers had 
been analysed, the Commission was able to observe that in various cases the imported 
product under investigation and the like dom estic product were directly competitive.  
In this case, big bags or containers cons titute an exception to the above, as they are 
not manufactured by the domestic industry.275 
7.186  In its Final Technical Report, the DEI also explained that: 
[I]n various cases the imported product under investigation and the like domestic 
product are directly competitive, insofar as it is intended to describe the relationship 
that exists between the domestic  product and the imported product.57 From the 
wording of the expression cited it is clear th at the essence of that relationship is that 
                                                      
270 Complainants, first written submission, paragraphs 129-131.  Although the complainants in their 
claim refer in general to the exclusion of the "domestic product manufactured starting from another phase 
distinct from the obtaining of the resin", the analysis and the conclusions of the Panel in this respect are limited to the polypropylene bags manufactured from tubular woven fabric with respect to which the complainants 
made specific reference and submitted arguments.  In the absence of arguments and concrete evidence, the Panel 
is unable to make a more general analysis with respect to "domestic products manufactured starting from another phase distinct from the obtaining of the resin". 
271 Initial Resolution, Exhibit CEGH-2, page 5. 
272 Preliminary Resolution, Exhibit CEGH-5, para graph 26.  See also, Initial Technical Report, 
Exhibit CEGH-3, page 10;  Preliminary Technical Report, Exhibit CEGH-7, page 48;  Final Technical Report, 
Exhibit CEGH-10, page 36. 
273 Definitive Resolution, Exhibit CEGH-9, paragraph 23. 
274 Dominican Republic, reply to question no. 99 from the Panel. 
275 Definitive Resolution, Exhibit CEGH-9, paragraph 23. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 68   
  the products are in competition and that the context of the competitive relationship is 
the marketplace.
276 
57 See Korea – Alcoholic Beverages , paragraph 114. 
7.187  In the opinion of the Panel, the use of the term like in the passages cited does not make it 
possible to conclude that the competent authorities necessarily made a finding of likeness  within the 
meaning of Article 4.1(c) of the Agreement on Safe guards.  Accordingly, the Panel believes that, in 
the investigation in question, the competent author ity declared that the domestic product defined and 
the product under investigation were directly competitive .277 
7.188  The Dominican Republic also asserts that the fact that the domestic product was defined as 
tubular fabric and polypropylene bags manufactured from resin  indicates only a physical 
characteristic shared by the domestic and imported pr oducts, so that polypropylene bags manufactured 
from tubular fabric were not excluded from  the definition of the domestic product.278 
7.189  The Dominican Republic suggests that, if the definition of the domestic product had not 
included bags manufactured by converting tubular fabric, neither the Commission nor the DEI would 
have taken the producers of this product (that is , Textiles TITÁN, FIDECA, Agro-arrocera S.A. and 
Fibras Dominicanas C. por A.) into account.279  Nevertheless, the Final Technical Report on which the 
Dominican Republic bases its case280 does not show that the definition of the directly competitive 
domestic product would have included polypropylene bags manufactured from tubular fabric and that, 
basing itself on this reason, the Commission would have considered these four companies as part of the domestic industry.  All it shows is that the companies were preliminarily considered for the 
purpose of determining, on the basis of their r espective production processes, whether they qualified 
as converters  or as producers of the directly competitive domestic product .
281  This does not constitute 
evidence that the competent authorities would have considered that the directly competitive domestic 
product included polypropylene bags manufactured from the processing of tubular fabric.  At the same time, both the resolutions of the Commission and the technical reports of the DEI confirm that 
the scope of the directly competitive domestic  product was limited to tubular fabric and 
polypropylene bags manufactured starting from resin.
282  Consequently, the Panel considers that the 
                                                      
276 Final Technical Report, Exhibit CEGH-10, page 42. 
277 This interpretation is confirmed by the fact that the passage cited by the Dominican Republic in the 
Final Technical Report of the DEI makes reference to paragraph 114 of the Appellate Body Report in Korea – 
Alcoholic Beverages  (where the Appellate Body interpreted the term "directly competitive or substitutable"), as 
well the identification of the domestic product solely as "directly competitive".  Both the final public notice and 
the preliminary public notice refer to the " directly competitive domestic product " (italics added).  Preliminary 
public notice, Exhibit CEGH-8, page 2;  final public notice, Exhibit CEGH-11, page 4. 
278 See, for example, Dominican Republic, reply to Panel question No. 190;  opening statement at the 
second meeting of the Panel, paragraph 38. 
279 See, for example, Dominican Republic, opening statement at the second meeting of the Panel, 
paragraph 39. 
280 Final Technical Report, Exhibit CEGH-10, pages 43-46. 
281 Final Technical Report, Exhibit CEGH-10, pages 43-47.  In other words, whether these companies 
manufactured polypropylene bags from tubular fabric or whether they carried out all the stages of the production 
process for the manufacture of polypropylene bags (from the production of tubular fabric from resin to the manufacture of the bags). 
282 As evidence of this, the Panel notes that the company FIDECA, which manu factures polypropylene 
bags starting from tubular fabric, was not considered part of the domestic industry.  See below, paragraph 7.192 and following paragraphs.  Moreover, the definitive Reso lution of the Commission reveals that, in determining 
that the company FERSAN constituted the domestic industr y, the Commission established that this company "is  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 69 
  
  complainants have demonstrated, as a matter of fact, that the competent authorities did not include 
within the scope of the definition of the domest ic product polypropylene bags manufactured starting 
from a stage subsequent to the processing of resin. 
7.190  On the other hand, the parties agree that the product under investigation on which the 
safeguard measures were imposed is tubular fabr ic and polypropylene bags  in general, no matter 
whether these products were manufactured st arting from a particular stage of production.
283  I n  
contrast, as previously noted, the directly co mpetitive product was restricted to the product 
manufactured starting from a particular stage of production, namely the processing of virgin resin, 
thereby excluding other possible like or directly competitive products, in particular, polypropylene bags manufactured from tubular fabric. 
7.191  The text of Article 4.1(c) of the Agreemen t on Safeguards establishes that the domestic 
industry has to be defined by reference to "produc ts" that are "like or directly competitive" with 
respect to the imported product.  There is nothing in th e text of this provision that allows the domestic 
industry to be defined on the basis of a limite d portion of these products.  If a product is like or 
directly competitive with respect to the imported product, that product must be considered for the 
purposes of defining the domestic industry.  Support for this interpretation can be gained by reading 
Article 4.1(c) of the Agreement on Safeguards within the context of Article 4.1(a).  In particular, the 
determination of the domestic indus try in terms of a portion of the "like or directly competitive 
products" could fail to establish the existence of a determination of significant overall impairment of 
the domestic industry as required by Article 4.1(a) of the Agreement on Safeguards.  In the present 
case, the directly competitive domestic product was defined on the basis of a portion of the "like or 
directly competitive products". 
7.192  In excluding from the definition of the direc tly competitive domestic product other like or 
directly competitive products, the competent aut hority consequently excluded domestic producers of 
the like or directly competitive product.  This was the case with the company FIDECA, which was 
excluded from the definition of the domestic industry. 
7.193  The parties all agree that FIDECA was excluded from the domestic industry and that 
FERSAN was the only company considered to  be part of the domestic industry.
284  Moreover, the data 
in the file show that FIDECA produces polypropyl ene bags by converting tubular fabric, either 
domestic or imported.  Presumably, the reason why this company was excluded from the definition of 
the domestic industry is because it does not produce the directly competitive product as defined in the 
investigation (i.e., the product manufactured starting from a specific production stage:  the processing of virgin resin).  These conclusions are supported by the relevant passages in the DEI's technical 
reports.  In particular, the Final Technical Re port points out that, in determining the domestic 
producers, the DEI first established whether the producers examined were converters  or producers  of 
the directly competitive domestic product.  With respect to the company FIDECA, the DEI reached 
the following conclusion: 
                                                                                                                                                                     
the only domestic company that manufactures 100 per cent of its output of tubular fabric and polypropylene 
bags starting from resin".  Definitive Resolution, Exhib it CEGH-9, page 4.  See also, Final Technical Report, 
Exhibit CEGH-10, page 47. 
283 According to the Dominican Republic, the only products that were excluded from the tariff lines on 
which the safeguard measures were imposed were jumbo sacks, "big bags", and "super sacks or containers".  Dominican Republic, reply to Panel question No. 97. 
284 See paragraph 1.172 of the present Report. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 70   
  In the case of Filamentos del Caribe (FIDECA) a domestic producer form was also 
submitted;  at present, this company is not producing the product under investigation, 
but obtains the bag from imported or locally purchased tubular fabric
61, as certified by 
the Institute of Innovation in Biotechnolog y and Industry (IIBI) in its communication 
to FIDECA dated 9 January 2010. 
[...] By virtue of the above, during the preliminary phase of the investigation the DEI 
assumed that FERSAN was undoubtedly the largest producer of polypropylene bags 
from resin in the Dominican Republic ...  In  this respect … the applicant company, 
that is, FERSAN, will be considered as the domestic industry.285 
61 Invoices examined during the inspection carried out at FERSAN on 17 February 2010 
showed that Fideca is a customer for th e tubular fabric produced by FERSAN. 
7.194  The Dominican Republic claims that it is consis tent with Article 4.1(c) of the Agreement on 
Safeguards to exclude from the domestic industr y producers that do not engage in significant 
production operations, as would be the case with converters that only cut and sew the tubular fabric 
which they purchase.286  In support of its position, the Dominican Republic cites the observation of 
the panel in EC – Salmon (Norway) , which reads as follows: 
There may be circumstances in which an en terprise whose product is within the scope 
of the like product may be found to have engaged in a level of activity so low as to justify the conclusion that it did not, in fact, "produce" the like product.
287 
7.195  The Dominican Republic also asserts that the ex clusion of particular producers would not be 
inconsistent with Article 4.1(c) of the Agreement on Safeguards, since this provision allows producers 
that constitute a major proportion of domestic production to be take n into consideration.288 
7.196  As the Appellate Body has pointed out, the term "producers" used in Article 4.1(c) of the 
Agreement on Safeguards can be taken to mean tho se who "manufacture an article", "those who bring 
a thing into existence".289  In this respect, the Panel does not see any reason why, in the circumstances 
of the present case, a company that cuts tubular fabric and sews it290, and consequently causes a 
polypropylene bag actually to exist, should not be c onsidered to be a producer under Article 4.1(c) of 
the Agreement on Safeguards. 
                                                      
285 Final Technical Report, Exhibit CEGH-10, page 46 (original emphasis and underlining).  See also, 
Preliminary Technical Report, Exhibit CEGH-7, page 58;  Final Technical Report, Exhibit RDO-10, page 52. 
286 Dominican Republic, second written submission, para graphs 74-75;  reply to question No. 195 from 
the Panel. 
287 Panel Report, EC – Salmon (Norway) , footnote 289, paragraph 7.115.  See:  Dominican Republic, 
second written submission, paragraph 74;  reply to question No. 109 from the Panel. 
288 Dominican Republic, second written submission, paragraph 75.  See also:  Ibid., second written 
submission, paragraphs 69-71;  Final Technical Report, Exhibit RDO-10, pages 49-52. 
289 Appellate Body Report, US – Lamb , paragraph 84.  See also, Panel Report, US – Lamb , 
paragraph 7.69. 
290 The technical reports indicate that, in some cases, after cutting and sewing, the bags may undergo an 
additional printing process.  See, for example, Fi nal Technical Report, Exhibit CEGH-10, pages 32-35.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 71 
  
  7.197  On the other hand, the Dominican Republic does not mention that the observation by the 
panel in EC – Salmon (Norway)  did not constitute the basis of the determination in that case;  in fact, 
that panel determined that, in accordance with Ar ticle 4.1 of the Anti-Dumping Agreement, "any 
enterprise that produced any form of the like produc t should be considered … a 'producer' of the like 
product, and as such, part of the domestic industry".
291  In arriving at this conclusion, the panel 
rejected arguments very similar to those put fo rward by the Dominican Republic in this dispute.292  
Moreover, what the panel said in EC – Salmon (Norway)  was not that any "level of activity so low" 
could justify the exclusion of an enterprise from the scope of the term "producer", but only that level 
which indicated that an enterprise "do[es] not ac tually bring … into existence" the product in 
question.293 
7.198  As already pointed out, the reason cited in th e technical reports for excluding FIDECA from 
the definition of the domestic industry was because it did not produce the directly competitive product 
starting from a specific stage of production, namely the processing of resin.294  The published report 
of the competent authority does not contain any expl anation that would make it possible to conclude 
that the level of activity of FIDECA in the producti on of polypropylene bags was "so low" that it did 
not actually bring the bag into existence.  Thus, the Panel considers that the statement of the Panel in 
EC – Salmon (Norway)  does not support the position of the Dominican Republic. 
7.199  For these reasons, the Panel considers that, in excluding from the definition of the directly 
competitive domestic product certain like or direc tly competitive products and, ultimately, producers 
of the like or directly competitive product, the de termination of the domestic industry made by the 
competent authorities is inconsistent with the obligat ions contained in Article 4.1(c) of the Agreement 
on Safeguards. 
7.200  Accordingly, the Panel does not consider it necess ary to deal with the remaining arguments of 
the complainants relating to the l ack of an adequate and reasoned de termination with respect to the 
likeness or relationship of direct competition between  the products in question and those relating to 
the exclusion of other producers from the domestic industry. 
(d) Conclusion 
7.201  The Panel concludes that the complainants ha ve demonstrated that, by excluding from the 
definition of the directly competitive domestic pr oduct certain like or directly competitive products 
and, ultimately, producers of the like or directly  competitive product, for the purpose of defining the 
domestic industry in its preliminary and definiti ve determinations, the Dominican Republic acted 
inconsistently with its obligations  under Article 4.1(c) of the Agr eement on Safeguards.  By imposing 
a safeguard measure on the basis of a definition of the domestic industry that is inconsistent with 
Article 4.1(c) of the Agreement on Safeguards, the Dominican Republic also acted inconsistently with 
                                                      
291 Panel Report, EC – Salmon (Norway) , paragraph 7.115. 
292 In particular, the panel in EC – Salmon (Norway)  found that the argument of the 
European Communities that "enterprises engaged in fille ting are not 'producers' as fillets do not result from a 
process of 'production', but merely transformation of one presentation to another presentation" was difficult to 
square with the ordinary meaning of the term "produce" ("bring a thing into existence").  Panel Report, EC –
Salmon (Norway) , paragraph 7.114. 
293 Panel Report, EC – Salmon (Norway) , paragraph 7.120. 
294 Despite what the Dominican Republic says, there is no indication that FIDECA was excluded 
because the competent authority had decided to consid er a major proportion of the domestic industry.  See 
paragraph 1.195 of the present Report. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 72   
  its obligations under Article 2.1 of the Agreemen t on Safeguards and Article XIX:1(a) of the 
GATT 1994. 
7.202  In view of this finding, the Panel does not c onsider it necessary to rule on the additional 
claims of the complainants relating to Articles 3.1,  last sentence, and 4.2(c) of the Agreement on 
Safeguards. 
7.203  Nor does the Panel consider it necessary to make  findings on the complainants' consequential 
claims relating to Articles 4.1(a), 4.2(a) and 4.2(b)  of the Agreement on Safeguards, or Article 6 of 
the Agreement on Safeguards with resp ect to the provisional measure. 
7.204  Having concluded that the Dominican Republic act ed inconsistently with obligations under 
the covered agreements as regards the determina tion of unforeseen developments and the effect of 
GATT obligations and as regards the definition of the domestic industry, it would not, in principle, be 
necessary for the Panel to make any finding concer ning the other substantive claims made by the 
complainants with respect to the provisional a nd definitive measures.  Nevertheless, taking into 
account the circumstances of the present case and with a view to assisting the parties to arrive at a 
positive solution to the dispute, the Panel will c onsider the other claims of the complainants. 
3. Whether the competent authority acted inconsistently with obligations under the 
covered agreements with regard to the dete rmination of an increase in imports in 
absolute and relative terms 
(a) Main arguments of the parties 
(i) Complainants 
7.205  The complainants claim that, with respect to  the provisional and definitive measures, the 
Commission did not find an increase in imports in ab solute and relative terms in a manner consistent 
with Article XIX:1(a) of the GATT 1994 and Articl es 2.1, 3.1, last sentence, and 4.2(c) of the 
Agreement on Safeguards and, moreove r, with Article 6 of the Agreement on Safeguards with respect 
to the preliminary determination.  Consequently, given the central importance of these determinations, 
the complainants assert that the determinations of serious injury and causality, and by implication the 
provisional and definitive measures, are inconsiste nt with Article XIX:1(a) of the GATT 1994 and 
Articles 2.1, 4.1(a), 4.2(a) and 4.2(b) of the Agre ement on Safeguards, as well as with Article 6 of the 
Agreement on Safeguards with respect to the provisi onal measure.  Moreover, with respect to the 
increase in imports in absolute terms, the complain ants maintain that the rate of increase was not 
analysed, so that Article 4.2(a) of th e Agreement on Safeguards was also infringed.
295 
7.206  With reference to an increase in imports in ab solute terms that was "recent enough, sudden 
enough, sharp enough and significant enough", the complainants also claim that the Commission concluded that there had been such an increase de spite having determined that there was a "marked 
decrease" in imports towards the end of the pe riod and that the Commission did not provide an 
adequate and reasoned explanation as to why, despite  this decrease, it still c onsidered that there had 
been an increase in imports that  was sufficiently recent, sudden, sharp and significant.  The 
complainants assert, in particular , that the reference made by the competent authority to an overall 
decrease in imports during the year 2009 is insuffici ent and invalid, given that the investigation ought 
                                                      
295 Complainants, first written submission, paragraphs 238, 249, 255, 274, 276 and 282-284;  
second written submission, paragraph 217.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 73 
  
  to have explained specifically how this factor had affected imports of the relevant products.  
Furthermore, with respect to the information rela ting to the alleged increase in imports during the 
year 2010, the complainants claim that this is an ex post explanation and that the increase was brought 
up only with respect to the final determination and,  consequently, is not relevant to the preliminary 
determination.  At the same time, they add that as this information does not correspond to the period of investigation, it should not be taken into consideration for the purposes of the final determination 
and, in any case, they maintain that the informati on was distorted so that it could not serve as a basis 
for an objective analysis of the increase in imports.
296 
7.207  Likewise, the complainants claim that the author ity did not make findings with respect to the 
"pace " of imports, by which they mean their rate of increase (or its acceleration or deceleration) and 
not the mere variation of amounts.297  In particular, the complainan ts assert that neither the DEI nor 
the Commission examined the growth trend of impor ts, but only compared absolute levels at the 
beginning and end of the investigation period.  A ccording to the complainants, if the rate of the 
increase in imports had been considered, it would ha ve been concluded that it was decreasing, with an 
initial increase and a subsequent cons tant, uninterrupted and drastic d eceleration during the rest of the 
period, so that the import analysis by the DEI and the Commission cannot be taken to show that there 
was a recent, sharp, sudden and significant increas e in imports.  The complainants add that the 
determination by the competent authority with resp ect to the existence of an absolute increase in 
imports is inconsistent with the factual finding th at imports contracted proportionately more than 
domestic consumption.298 
7.208  In addition, the complainants claim that th e premises on which the determination of an 
increase in imports was based were i nvalid.  In this respect, they note that the treatment of tubular 
fabric and polypropylene bags as a single product affected the determination of the increase in 
imports, and that if the Panel were to find that th ere were no adequate and reasoned explanations in 
relation to the definition of the product under inves tigation, the determination concerning the increase 
in imports should also be declared invalid.  The co mplainants also maintain that Article 2.1 of the 
Agreement on Safeguards establishes an identity between a product affected by a safeguard measure 
and the import analysis concerning that product , so that if a safeguard measure affects two products, 
the determination concerning imports would have to  be based on each product in particular, since 
otherwise the individuality required by Article 2.1 would not be respected.  In the present case, they 
note that the safeguard measure affected two products, but that the import analysis was based on a 
single product.  Likewise, the complainants refer to the statement by the Dominican Republic that the 
effect of the imports within the context of non-attribution unde r Article 4.2(b) includes the effect of 
the domestic production of the companies Filamentos  del Caribe (FIDECA) and Textiles TITÁN, and 
claim that from this there follows a discrepancy between the premises for the determination of the 
increase in imports for the purposes of Article 2.1 and for non-attribution for the purposes of 
Article 4.2(b) of the Agreement on Safeguards.  Acco rding to the complainants, this inconsistency in 
the use of the term imports is inadmissible, and results in either the determination concerning 
                                                      
296 See, complainants, first written submission, para graphs 237, 248 and 256-264;  second written 
submission, paragraphs 212-214;  opening statement at the second meeting of the Panel, paragraph 49. 
297 The complainants claim that, otherwise, the distinction between the amount  and the rate of the 
increase in imports in Article 4.2(a)  of the Agreement on Safeguards would be meaningless.  Complainants, 
second written submission, paragraph 216. 
298 Complainants, first written submission, paragraphs 266-269 and 273-274;  opening statement at the 
first meeting of the Panel, paragraph 82. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 74   
  increased imports being inconsistent with Article 2.1 or the determination of non-attribution being 
inconsistent with Article 4.2(b)  of the Agreement on Safeguards.
299 
7.209  Finally, the complainants maintain that the Commission has not demonstrated an increase in 
imports in relative terms with respect to the domestic industry.  In this connection, they assert that the 
Commission determined an increase in imports despite  having found that the relative share of imports 
in relation to domestic production had fallen steadily  and uninterruptedly for most of the period 
investigated.  Likewise, they point out that th e Commission did not explain the discrepancy between 
these findings and its final conclusion that in rela tion to domestic production imports had maintained 
"a steady and increasing trend during the investiga tion period" and, consequently, claim that the 
analysis by the competent authority does not prov ide a reasoned and adequate explanation of the 
performance of imports in relative terms.300 
(ii) Dominican Republic 
7.210  The Dominican Republic maintains that the Commission established the existence of an 
increase in imports in absolute terms that was recent enough, sudden en ough, sharp enough and 
significant enough to justify the adoption of a safeguard measure, and that this increase was 
demonstrated by a reasoned and adequate explana tion in the preliminary and final determinations.301  
It also argues that the decrease in imports during 2009 did not affect the nature of this increase, since, 
as the Commission's findings show, the decrease was temporary and incidental (due to the overall 
decrease in the Dominican Republic's imports in 2009) , as well as being insignificant in the light of 
the major increase in imports over the whole of the pe riod of investigation.  It adds that during the 
final phase of the investigation, in its definitiv e findings, the Commission found additional support in 
the data for 2010, which confirmed the transitory nature of the decrease.302 
7.211  Moreover, the Dominican Republic asserts that  the Commission correctly assessed the trend 
in imports, by comparing the end points of the peri od investigated, as well as the data for each year 
considered individually, taking into account both the rate of increase and the amount, while also 
assessing the relevance of the decrease at the end of the period, as well as the data for the year 2010.  
At the same time, the Dominican Republic points out that the complainants have not indicated how a 
                                                      
299 Complainants, second written submission, paragraphs 203-208;  reply to question No. 192 from the 
Panel. 
300 Complainants, first written submission, paragraphs 275-282. 
301 In particular, the Dominican Republic points out that an increase in imports of more than 60 per cent 
in the year 2007, followed by an increase of more than 9 per cent in 2008, is an increase that is not gradual but 
sudden;  not slow but sharp;  and not insignificant but signi ficant;  and is recent, considering that the 
investigation was started on 15 Decem ber 2009 and ended with the completi on of the Final Technical Report on 
13 July 2010.  Dominican Republic, first written submission, paragraph 311. 
302 Dominican Republic, first written submission, paragraphs 306, 312, and 317-320;  second written 
submission, paragraphs 84-86.  The Dominican Republic stresses that the conclusion relating to the increase in imports was reached on the basis of the period of investiga tion and that the data for the year 2010, although they 
provided additional confirmation of the finding already made in the preliminary phase, did not form the basis for 
the determinations of the Commission.  Moreover, it maintains that the use of data not formally included in the period of investigation has been confirmed and even encouraged by previous panels and by the Appellate Body.  
Dominican Republic, second written subm ission, paragraphs 88-90;   opening statement at  the second meeting of 
the Panel, paragraph 50 (where the Panel Reports in Argentina – Footwear (EC) , paragraph 8.160, and Mexico – 
Anti-Dumping Measures on Rice , paragraph 7.64, and the Appellate Body Report in Mexico – Anti-Dumping 
Measures on Rice , paragraph 167, are cited).  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 75 
  
  contraction in imports that exceeded the cont raction in apparent dom estic consumption would 
contradict the Commission's conclusions concerning an absolute increase in imports.
303 
7.212  Nor does the Dominican Republic agree with the interpretation of the complainants 
concerning Article 2.1 of the Agreement on Safegua rds.  According to the Dominican Republic, the 
fact that the expression such product in Article 2.1 refers to a product  subject to the safeguard 
measure simply indicates that the product subject to the measure must correspond to the product under investigation.  In this respect, it notes that in th e present case the product under investigation and the 
product subject to the measures are identical.  It also points out that the complainants have not 
questioned the determination of the product under investigation per se , so that the determination is 
valid.
304 
7.213  Finally, the Dominican Republic maintains that the Commission provided a reasoned and 
adequate explanation of the trend in the imports in relative terms, by analysing each of the periods, 
and demonstrated an increase in 2007 and a decr ease in 2008 and 2009, cons idering both the amount 
and the rate of the increase, without limiting itsel f to comparing only the end points of the period 
investigated.  The Dominican Republic adds that, d espite the fact that an increase in imports was 
recorded only for the year 2007, it complied with Ar ticle 2.1 of the Agreement on Safeguards, which 
requires an increase in absolute or relative terms.305 
(b) Main arguments of the third parties 
(i) Colombia 
7.214  Colombia points out that, in accordance with pr evious decisions made by the Appellate Body, 
the determination concerning increased imports s hould be made on a case-by-case basis and should 
show that the increase is of a nature such as to cause or threaten to cause serious injury.  It adds that 
there could be a case in which a decline in im ports towards the end of the period might not be 
significant and from a consideration of the whole of the increase during the period of investigation it 
might be concluded that there had been an abso lute increase in imports, despite their decreasing 
towards the end of the period.  In the present case,  Colombia considers that the conclusion reached by 
the Dominican Republic concerning the increase in im ports and its causal link with the alleged injury 
is inadequate, inasmuch as the Dominican Repub lic restricted its assessment to the cumulative 
increase in imports of tubular fabric and polypropy lene bags, without making it clear whether the 
increase related to tubular fabric or polypropylene bags.306 
(ii) United States 
7.215  The United States considers that the Agre ement on Safeguards does not establish any 
particular methodology or analytic framework for evaluating increased imports;  in particular, it notes 
                                                      
303 Dominican Republic, first written submission, para graphs 327, 334 and 336 (where the Appellate 
Body Report in Argentina – Footwear (EC) , paragraph 129, is cited);  opening  statement at the second meeting 
of the Panel, paragraph 51.  The Dominican Republic note s that a comparison between the trend in the growth of 
imports and the trend in the growth of apparent domestic consumption could give an indication of the increase 
in imports relative to domestic production, but says nothing about the absolute increase in imports.  Ibid., 
paragraph 335. 
304 Dominican Republic, reply to Panel question No. 193;  comments on the reply of the complainants 
to Panel question No. 192. 
305 Dominican Republic, first written submission, paragraphs 338-339. 
306 Colombia, third party written submission, paragraphs 55, 58 and 63. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 76   
  that Articles 2.1 and 4.2 of the Agreement on Safegu ards make no reference to the end of the period 
of investigation, nor do they indicate any special ro le for any particular period of time within the 
overall period of investigation.  At the same time, the United States points out that in US – Steel 
Safeguards  the Appellate Body stated that "Article 2. 1 does not require that imports need to be 
increasing at the time of the determination" and that it did not believe "that a decrease in imports at the end of the period of inves tigation would necessarily prevent an  investigating authority from 
finding that, nevertheless, pr oducts continue to be imported 'in such increased quantities'".
307 
(iii) Panama 
7.216  Panama considers that in the present case imports  of the products in question fluctuated and 
there was no substantiated determination by the co mpetent authority to show that the increase in 
imports was recent, sudden, sharp and significant.  At  the same time, it points out that a determination 
of increased imports requires proof that the imports increased steadily or an adequate and reasoned 
explanation of the reasons why, despite the increase lacking regularity, it was still considered that the 
imports increased recently, suddenly, sharply and significantly.  In this dispute, Panama is of the opinion that the conclusions of the investigating au thority do not indicate of a demonstration that the 
increase in imports displayed these characteristics.
308 
(c) Assessment of the Panel 
7.217  This complaint raises the question of whethe r the determinations of the Commission 
concerning an increase in imports, in both absolute  and relative terms, are inconsistent with 
Articles 2.1, 3.1, last sentence and 4.2(c) of th e Agreement on Safeguards and with Article XIX:1(a) 
of the GATT 1994, as well as with Article 4.2(a) of  the Agreement on Safeguards, where the increase 
in imports in absolute terms is concerned. 
7.218  Article 2.1 of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 predicate 
the existence of an increase in imports, in absolute  or in relative terms, as a prerequisite for the 
application of a safeguard measure. 
7.219  Article 2.1 of the Agreement on Safeguards stipulates that: 
A Member may apply a safeguard measure to a product only if that Member has 
determined, pursuant to the provisions set out below, that such product is being imported into its territory in such increased  quantities, absolute or relative to domestic 
production, and under such conditions as to cause  or threaten to cause serious injury 
the domestic industry that produces like or directly competitive products.  (Footnote 
omitted.) 
7.220  The relevant part of Article XIX:1(a) of the GATT 1994 reads as follows: 
If … any product is being imported into the te rritory of that contracting party in such 
increased quantities and under such conditions as to cause or threaten serious injury 
to domestic producers in that territory of  like or directly competitive products … . 
                                                      
307 United States, third party written submission, para graphs 10-11 (where the Appellate Body Report 
in US – Steel Safeguards , paragraph 367, is cited). 
308 Panama, third party written submission, paragraphs 28-30.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 77 
  
  7.221  These provisions do not make reference to any increase in imports.  On the contrary, they 
state that the product must be imported into the territory of the Member concerned in such quantities  
(absolute or relative to domestic pr oduction) as to cause or threaten to cause serious injury.  In other 
words, as the Appellate Body has pointed out, it follows from both these provisions that the increase 
in imports must have been recent enough, sudden e nough, sharp enough, and significant enough, both 
quantitatively and qualitatively, to cause or  threaten to cause serious injury.
309  This assessment must 
be made on a case-by-case basis.310 
7.222  The Panel will first address the claim by the co mplainants concerning the increase in imports 
in absolute terms, including their claim relating to th e rate of the increase in imports.  Next, the Panel 
will refer to claim made by the complainants with  respect to the increase in imports relative to 
domestic production.  In this connection, it will examine whether, in its published report, the 
competent authority provided a reasoned and adequa te explanation of the way in which the factors 
corroborate its determination. 
(i) Absolute variation in imports 
7.223  The data on absolute levels of imports on wh ich the Commission based its determination are 
contained in the Preliminary and Final Technical Re ports of the DEI.  The relevant findings can be 
found in the respective Resolutions of the Commission.311 
7.224  The Commission's Definitive Resolution reads as follows: 
31. In its Final Technical Report the DEI notes that the relative increase in 
imports of polypropylene bags and tubular fabric has fluctuated;  during the period 
2006/2007 imports increased by 60.76 per cent, during the period 2007/2008 the 
increase was 9.40 per cent, while in 2009 w ith respect to 2008 imports fell by 14.68 
per cent.  Finally, over the time-frame of th e investigation imports increased by 50.06 
per cent. 
32. Moreover, the DEI continues by noting that the analysis of the impact of the 
provisional safeguard measure adopted by the Commission showed that it did not have a significant impact on imports during th e months of May and June 2010, due to 
the apparent existence of factors favouring a recovery in the imports investigated. 
33. In May 2010, as compared with April 2010, imports experienced a recovery 
of 42 per cent, while in June of the same year imports increased substantially by 275 
per cent, to almost three times the imports recorded in May. 
34. Moreover, imports in June 2010 exceeded by 69 per cent the imports 
recorded over the same period in 2009.
312 
                                                      
309 Appellate Body Report, Argentina – Footwear (EC) , paragraph 131. 
310 Appellate Body Report, US – Steel Safeguards , paragraphs 351 and 360. 
311 The preliminary and definitive Resolutions of the Commission refer to the respective technical 
reports issued by the DEI, which formed an integral part of the resolutions.  See paragraph 7.10 of the present 
Report. 
312 Definitive Resolution, Exhibit CEGH-9, paragraphs 31-34.  See also, Preliminary Resolution, 
Exhibit CEGH-5, paragraphs 43-44. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 78   
  7.225  The Preliminary Resolution also refers to the increase in the value and volume of imports.  
The Preliminary Resolution contains the same pe rcentage data as the Definitive Resolution with 
respect to the increase in imports of polypropylene bags and tubular fabric, both for the whole of the 
period of investigation and year-on-year, and also notes that the increase in imports resulted in an 
absolute variation of 956,399.89 kg  over the period of investigation.
313 
7.226  The relevant part of the Final Technical Report reads as follows314: 
Volume of imports of polypropylene bags and tubular fabric 
… 
As the following table shows, the absolute variation in the  volume of imports of 
polypropylene bags in 2007 with respect to 2006 was 1,160,748.39 kg;  for the period 2007/2008 the volume of imports remained relatively stable with respect to the previous year increasing by 288,747.63 kg;  in 2009 relative to 2008 there was an 
absolute decrease of (493,096.13) kg. Finall y, over the period 2006-2009, there was 
an absolute variation of 956,399.89 kg in th e volume of imports of bags and tubular 
fabric. 
Table 16.  Absolute increase in imports of  polypropylene bags and tubular fabric 
 
 
  Volume (kg)     Absolute variation 
Source :  Compiled by the Investigation Department using Directorate-General of Customs data. 
The relative increase in imports of polypropyl ene bags and tubular fabric fluctuated:  
during the period 2006/2007 imports in creased by 60.76 per cent, during the 
period 2007/2008 the increase in imports was 9.40 per cent, and in 2009 imports fell 
by 14.68 per cent relative to 2008.  Finally, over the time-frame of the investigation 
imports increased by 50.06 per cent. 
                                                      
313 Preliminary Resolution, Exhibit CEGH-5, paragraphs 42-44. 
314 Final Technical Report, Exhibit CEGH-10, pages 51-52 (original emphasis).  The same findings 
were recorded in the Preliminary Technical Report, Exhibit CEGH-7, pages 61-62.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 79 
  
  Table 17.  Relative increase in imports of  polypropylene bags and tubular fabric 
 
   Volume (kg)    Relative variation 
Source :  Compiled by the Investigation Department using Directorate-General of Customs data. 
7.227  The DEI's Final Technical Report, referring to the decrease in imports in 2009, states: 
[T]his reduction can be attributed to the decrease in the Dominican Republic's overall 
imports in 2009.  According to the report on the Preliminary Results for the Dominican Economy January-September 2009, published by the Central Bank, the slowdown in the economy was reflected in a reduction in the demand for imports, so 
that total imports amounted to US$8,743.0 million, equivalent to a fall of 
US$3,796.6 million (30.3 per cent) in th e import level as compared with the 
corresponding period in the previous year, w ith a decrease of 32.3 per cent in national 
imports.  Of these, raw materials fell by 39.4 per cent and c onsumption goods by 
29.2 per cent with the remaining 26.3 per cent corresponding to capital goods. 
In addition, the DEI agrees with the ruling of the Appellate Body of the WTO, in 
which it makes clear that Article 2.1 of the Agreement does not require  that imports 
need to be increasing at the time of the de termination.  The plain meaning of the 
phrase "is being imported in such increased quantities" suggests merely that imports must have increased, and that the relevant  products continue "being imported" in 
(such) increased quantities.  Therefore, a d ecrease in imports at the end of the period 
of investigation would not necessarily preven t an investigating au thority from finding 
that, nevertheless, products continue to be imported "in such increased quantities".
315 
7.228  The Preliminary Technical Report contains identical findings.316 
7.229  In the Final Technical Report, the DEI also explained: 
Furthermore, during the final phase of this i nvestigation the DEI analysed the trend in 
imports (in volume and value) of the pr oduct under investigation during the period 
January-June 2010, as compared with the corresponding period in 2009.  See under 
letter C of this chapter.317 
                                                      
315 Final Technical Report, Exhibit CEGH-10, pages 61-62 (citing the Appellate Body in US – Steel 
Safeguards , paragraph 367) (original emphasis, footnotes omitted). 
316 Preliminary Technical Report, Exhibit CEGH-7, page 68. 
317 Final Technical Report, Exhibit CEGH-10, page 62 (original underlining). WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 80   
  7.230  For its part, letter C, as mentioned in the quot ation from the Final Technical Report contained 
in the preceding paragraph, reads as follows: 
C. Trends in the volume and price of imports of polypropylene bags and 
tubular fabric during the months of January-May 2010 as compared with the 
corresponding period in 2009.  
On analysing the trend in imports in 2010 rela tive to 2009, we note that in the months 
of February, March and June impor ts for 2010 exceeded those for 2009. 
For the purpose of examining the impact of the provisional safeguard measure 
adopted by the Commission, which entered into force on 1 April 2010, we note that 
for that month in 2010, as compared with the previous month in the same year, imports decreased by 47 per cent and by  65 per cent when compared with 
April 2009.
66 
However, the trend in imports in May 2010 as compared with April 2010 was 
characterized by a recovery of 42 per cent, and in June of the same year imports increased by a staggering 275 per cent, to almo st three times the imports recorded in 
May.  If we compare the month of June 2010 with the corresponding month in 2009, we find that imports in 2010 were 69 per cent higher than in 2009. 
This trend in imports in the months of May and June 2010 allows us to draw the 
preliminary conclusion that the provisional safeguard measure did not have a positive 
impact in those months, apparently due to the existence of factors favouring the recovery of the imports investigated.
318 
66 It should be noted that on the eve of the measure (months of February and March) there was 
a considerable increase in the volume impo rted, perhaps with the aim of ensuring ample 
stocks before the possible application of a provisional measure in the month of April. 
7.231  The Panel notes that the Commission's ev aluation took into account the import data 
corresponding to each of the years of the period of investigation, as well as the trend in imports over 
that period.  The Commission found a global increase in imports of 956,399.89 kg (50.06 per cent) 
over the period investigated.  An increase in imports of 1,160,748.39 kg (60.76 per cent) was 
observed at the beginning of the period (2006-2007)  and an increase of 288,747.63 kg (9.40 per cent) 
during the intermediate period (2007-2008), so that  imports increased continuously in two out of 
three annual comparisons, including a significant increase between the years 2006 and 2007.  It also 
identified a decrease in imports of 493,096.13 kg (14.68 per cent) at the end of the 
period (2008-2009).  In the Preliminary Technical  Report it was indicated that the decrease in 
question could be attributed to an overall reduction in Dominican Republic imports in 2009.  In the 
final phase of the investigation, reference was also made  to the fact that in th e first half of 2010, in 
particular in the months of February, March and June  of that year, imports recovered, in some cases 
reaching levels higher than those recorded during 2009.319 
                                                      
318 Final Technical Report, Exhibit CEGH-10, pages 55-56 (original underlining, some footnotes 
omitted). 
319 As in the preliminary phase, th e competent authority referred to the Appellate Body Report in US – 
Steel Safeguards  (where the Appellate Body stated that Article 2 of the Agreement on Safeguards "does not 
require that imports need to be increasing at the time of the determination").  Final technical report,  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 81 
  
  7.232  The complainants assert that the explanation refe rring to the overall fall in imports is invalid.  
They claim that the overall fall in imports was a m acroeconomic development that affected the entire 
tariff universe, so that the possibility of the de mand for certain imported products remaining stable 
cannot be ruled out.  They add that it does not fo llow from this explanation that the decrease in 
imports at the end of the period was a temporary decrease or that the authority characterized it as such.
320 
7.233  The Panel does not consider the arguments of the complainants convincing.  The Panel does 
not exclude the possibility that the demand for cer tain products could have remained stable and 
therefore unaffected by the overall fall in imports.  However, the complainants have not argued or put 
forward any evidence from which it could be conclude d that this was the case with respect to the 
products in question.321  Although the DEI did not explicitly show that the decrease in imports at the 
end of the period was temporary, the complainants ha ve not offered any evidence to the contrary.  In 
particular, the complainants have not demonstrated that the decrease in imports (or the overall 
decrease in imports) reflected a permanent or long-term change. 
7.234  The complainants also argue that the inform ation relating to the increase in imports during 
2010 does not belong to the period of investigation, so  that it cannot be taken into consideration for 
the purposes of the definitive measure.322  Nevertheless, the complainan ts have not proposed any legal 
basis for their position and indeed acknowledge th at other previous panels have required the 
possibility of using information relating to a period subsequent to that investigated.323  In any event, 
the data for 2010 did not constitute the competent au thority's main explanation for finding an absolute 
increase in imports, despite the decrease identified at  the end of the period.  On the contrary, as 
pointed out in the preceding paragraphs, the compet ent authority referred to the data corresponding to 
the year 2010 in addition to the explanation that it had already given in the preliminary phase of its 
investigation, namely, that the decr ease in the imports in question c ould be attributed to the overall 
decrease in Dominican imports in 2009.324  The complainants have not demonstrated that this finding 
constitutes an invalid explanation.325 
7.235  Nor does the Panel regard as valid the assertion of  the complainants to the effect that the 
competent authority failed to examine the rate of  the increase in imports.  According to the 
complainants, the rate was decreasing sharply (from 60.76 per cent in 2007, to 9.4 per cent in 2008, 
and to -14.68 per cent in 2009), so  that it could not be concluded that there had been a recent, sudden 
                                                                                                                                                                     
Exhibit CEGH-10, page 62 (which cites the Appellate Body in US – Steel Safeguards , paragraph 367) (original 
Appellate Body italics and underlining).  See also, Prelim inary Resolution, Exhibit CEGH-5, page 6;  definitive 
Resolution, Exhibit CEGH-9, pages 5-6. 
320 See, for example, complainants, reply to question no. 118 from the Panel;  opening statement at the 
first meeting of the Panel, paragraphs 77-78. 
321 On the contrary, in their first written submission, the complainants assert that "[t]he explanation 
given by the DEI indicates that the fall in imports reflected the significant variation in the market for tubular 
fabric and polypropylene bags in the Dominican Republic as a result of the slowdown in its economy due to the financial crisis of 2008".  Complainants , first written submission, paragraph 271. 
322 Complainants, second written submission, paragraph 213. 
323 Complainants, reply to Panel question No. 196 (which refers to the panel report in Argentina – 
Footwear (EC) ). 
324 See paragraph 1.230 of the present Report. 
325 For the same reason, the Panel rejects the argu ment of the complainants that the preliminary 
determination concerning increased imports lacks a fact ual element explaining the irrelevance of the decrease 
towards the end of the period of investigation.  Complainants, second written submission, paragraph 212. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 82   
  and sharp increase in imports.
326  Nevertheless, as already pointed out, the competent authority 
analysed the data relating to imports in each of the years of the period investigated, as well as the 
development of the trend in  imports over this period.327  Moreover, it cannot be assumed that an 
increase of 9.4 per cent in the intermediate period constituted a decrease in imports, especially when 
this increase was calculated on the basis of an abso lute volume of imports that had already increased 
significantly in the immediately preceding period.  Ther e is nothing in the text of Article XIX:1(a) of 
the GATT 1994 or the Agreement on Safeguards to indi cate that the rate of the increase in imports 
must accelerate (or be positive) at every moment of the period of investigation or that it is rising  and 
positive  only if every percentage increase is greater than the preceding increase.328  As the 
Appellate Body has pointed out, the determination of whether the product "is being imported in such 
increased quantities" is not a "mathema tical or technical" determination329, but rather an evaluation 
that must be made case by case.330  The Panel therefore considers that the complainants have not 
demonstrated that the competent authority did not exam ine the rate of the increase in imports nor that 
the increase in imports it found could not have been considered recent, sudden and sharp. 
7.236  The complainants also maintain that Article 2.1 of the Agreement on Safeguards establishes 
an identity between a product subject to a safeguard measure a nd the analysis of the imports relating 
to that product , so that if a safeguard measure affects two products , the import determination must be 
made with respect to each product.331  The Panel understands that the poi nt raised by the complainants 
is that the determination of the increase in imports is invalid because there was no separate 
determination of the increase in imports of tubula r fabric, on the one hand, and polypropylene bags, 
on the other.  However, as the complainants have not stated an objection to the definition of the 
product under investigation per se332, the Panel considers that the de finition adopted by the competent 
authority is that which governs the definition of the product under investigation,  as well as the way in 
which the relevant data should have been analysed  in the investigation.  Given the undisputed 
definition of tubular fabric and polypropylene ba gs as the product under investigation, the Panel does 
not regard as valid the argument of the complainan ts that the increase in imports should have been 
demonstrated separately with respect to each of these products. 
7.237  In any event, the complainants have not demons trated that Article 2.1 of the Agreement on 
Safeguards requires the separate consideration of im ports of each product that forms part of a single 
product under investigation.  Although Article 2.1 states that a saf eguard measure may be applied to 
a product , imports of which have increased, this provi sion does not require a disaggregated analysis 
for all cases in which the definition of the product under investigation comprises more than 
one product.  At the same time, neither have the complainants explained how, in the circumstances of 
the present case, the joint consideration of tubular fabric and polypropylene bags could have affected 
the analysis made by the Commission and resulted in  an inadequate determination of the increase in 
                                                      
326 See, for example, complainants, first written submission, paragraphs 265-269;  opening statement at 
the first meeting of the Panel, paragraph 82. 
327 The competent authority determined  that the increase in imports had "fluctuated".  Specifically, it 
indicated that "the absolute variation in the  volume of imports … in 2007 with respect to 2006 was 
1,160,748.39 kg;  for the period 2007/2008 the volume of imports remained relatively stable with respect to the previous year … in 2009 relative to 2008 there was an absolute decrease … .  Finally, over the period 
2006-2009, there was an absolute variation of 956,399.89 kg in the volume of imports of bags and tubular 
fabric".  See, for example, Preliminary Technical Report, Exhibit CEGH-7, pages 61-62 (original emphasis). 
328 See Appellate Body Report, Argentina – Footwear (EC) , paragraph 131. 
329 Appellate Body Report, Argentina – Footwear (EC) , paragraph 131. 
330 Appellate Body Report, US – Lamb , paragraphs 351 and 360. 
331 Complainants, second written submission, paragrap hs 205-206;  reply to Panel question No. 192. 
332 See paragraph 1.176 of the present Report.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 83 
  
  imports during the period of investigation.
333  For these reasons, the Panel considers unfounded, in 
this respect, the complainants' argument that the premises on which the determination of increased 
imports was based are invalid. 
7.238  Likewise, the Panel considers the argument c oncerning the alleged discrepancy between the 
premises for the increased imports and non-attri bution determinations to be unjustified.  The 
complainants appear to be saying that the effe ct of the imports within the context of the 
non-attribution analysis included the effect of th e domestic production of the companies FIDECA and 
Textiles TITÁN, whereas the analysis of the incr ease in imports did not include any aspect of the 
domestic production, so that there is a discrepancy in the use of the term imports in the  
investigation.334  However, the complainants have not demonstrated that the competent authority's 
non-attribution analysis included the production of the companies FIDECA and Textiles TITÁN and 
there is nothing in the file to suggest that this was the case.335 
7.239  The Panel therefore considers that the compla inants have failed to make the case that the 
published report of the competent authority does no t contain a reasoned and ad equate explanation of 
the way in which the relevant factors corroborate th e determination of the existence of an absolute 
increase in imports of the products in question. 
7.240  In conclusion, the Panel rejects the claim of the complainants that the fi nding of an absolute 
increase in imports made by the Dominican Repub lic was inconsistent with Article 2.1 of the 
Agreement on Safeguards and with Article XIX:1(a)  of the GATT 1994, and that the findings and 
explanations provided by the Dominican Republic in  this respect, insofar as they relate to the 
preliminary and definitive determin ations, were inconsistent with the provisions of Articles 3.1, last 
sentence, and 4.2(c) of the Agreement on Safeguards.   Likewise, the Panel rejects the claim of the 
complainants that the competent aut hority failed to analyse the rate of the increase in imports and that 
the Dominican Republic thereby infringed Artic le 4.2(a) of the Agreement on Safeguards. 
7.241  In relation to the determination of the comp etent authority concerning increased imports, the 
complainants also cite Article 11.1(a) of the Agreement on Safeguards and, where the preliminary 
determination is concerned, Article 6 of the Agreement on Safeguards.  However, with respect to this 
latter aspect of their claim, as well as with respect to  the claims that they put forward consequentially, 
the complainants did not formulate any specific ar guments;  consequently, even assuming that all 
                                                      
333 Neither does the Panel consider th at the text of Article XIX:1(a) of the GATT 1994 or the fact that 
safeguard measures should be exceptional and extraord inary in nature supports the interpretation of the 
complainants.  In particular, the complainants have failed to explain how the nature of the measures would 
support their interpretation.  At the same time, the mere reference to particular products  in the title of 
Article XIX:1(a) says nothing about the scope of these particular products . 
334 Complainants, second written submission, paragraphs 207-208. 
335 In view of its previous findings (see paragraph 7.182 of the present Report), the Panel rejects the 
additional argument of the complainants that "if the Panel were to find that there were no adequate and reasoned explanations regarding the definition of the imported pr oduct under investigation, the analysis of increased 
imports would also be invalid".  Complainants, second written submission, paragraphs 203-204. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 84   
  these claims were properly brought before it
336, the Panel will refrain from making findings in this 
respect.337 
(ii) Relative variation in imports 
7.242  The determination of an absolute or relative increase in imports that causes or threatens 
serious injury is sufficient to entitle a Member to adopt a safeguard measure.  Consequently, given the 
previous finding concerning the de termination of the competent author ity with regard to imports in 
absolute terms, the Panel does not consider it necessar y to make additional findings with respect to the 
determination of the behaviour of imports in re lative terms.  The possible making of additional 
findings with respect to increased imports could not  affect the Panel's finding that the complainants 
have failed to show that the Dominican Republic infringed the relevant provisions of the Agreement 
on Safeguards and Article XIX:1(a) of the GATT 1994 by not demonstrating an increase in imports 
within the meaning of those provisions. 
4. Whether the competent authority acted inconsistently with obligations under the 
covered agreements with regard to the determ ination of serious injury to the domestic 
industry 
(a) Main arguments of the parties 
(i) Complainants 
7.243  The complainants claim that, in its determinati on of the existence of serious injury to the 
domestic industry, with respect to the provisional and definitive measures, the Commission acted 
inconsistently with Articles 2.1, 3.1, last senten ce, 4.1(a), 4.2(a) and 4.2(c) of the Agreement on 
Safeguards and with Article XIX:1(a) of the GATT 1994, as well as with Article 6 of the Agreement 
on Safeguards as far as the provisional measure is  concerned.  In support of their complaint 
concerning serious injury, the complainants make the following four points. 
7.244  First, the complainants argue that the Commis sion acted inconsistently with Articles 4.1(a), 
4.2(a), 3.1, last sentence, and 4.2(c) of the Agreement on Safeguards in not having carried out a 
disaggregated and complete analysis of the various  segments of the domestic industry for the purpose 
of determining serious injury.  In particular, the complainants argue that the Commission did not carry 
out separate analyses of the production of tubular fa bric and the production of polypropylene bags and 
that it did not consider information relating to  the commercial market for tubular fabric.338  Likewise, 
in reply to the arguments put forward by the Domi nican Republic in its defence, the complainants 
argue that the evidence provided by the Dominican  Republic shows that the Commission based its 
analysis on information from FERSAN (Bags Division), which produces not only the like or directly 
                                                      
336 The complainants' consequential claim under Article  4.1(a) of the Agreement on Safeguards was not 
identified in the relevant part of their requests for the establishment of a panel and therefore it is not even clear 
that it falls within the Panel's terms of reference.  In  any case, in view of the previous findings, it is not 
necessary for the Panel to rule in this respect. 
337 In this connection, the Panel notes that in Chile – Price Band System , the Appellate Body observed 
that a panel cannot make findings on issues that cannot be considered to have been properly brought before it 
because the complaining party has not cl early articulated a claim or submitted arguments.  See:  Appellate Body 
Report, Chile – Price Band System , paragraph 173. 
338 Complainants, first written submission, paragraphs 286 and 297-312.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 85 
  
  competitive product but also other products such as mesh bags, cordage and ropes, and improperly 
included in its analysis information about FERSAN's exports.
339 
7.245  Second, the complainants argue that the Commissi on acted inconsistently with Articles 4.2(a), 
3.1, last sentence, and 4.2(c) of the Agreement on Safeguards in failing to consider in the preliminary 
determination all the relevant fact ors of serious injury listed in Article 4.2(a) of the Agreement on 
Safeguards.  In particular, the complainants argue that the Commission failed to evaluate the 
productivity factor and that it is not enough for th e Dominican Republic to suggest that the result of 
this factor could be assessed by combini ng the production and employment indicators.340 
7.246  Third, the complainants claim that the Commissi on determined the existence of serious injury 
in the preliminary and final resolutions, despite the fact that the indicators showed the contrary or 
were inadequately evaluated, acting inconsistently w ith Articles 4.1(a), 4.2(a), 3.1, last sentence, and 
4.2(c) of the Agreement on Safeguards.   With regard to the Preliminary Resolution, they point out that 
the Commission:  (i) after finding that productio n was indicating steady growth, came to the 
contradictory conclusion that this factor had contr acted;  and (ii) failed to give an adequate and 
reasoned explanation of why it considered that there had been an increase in inventories and financial 
losses.  Likewise, they point out that, in the De finitive Resolution, the Commission:  (i) failed to 
explain how it was that the performance of inventor ies, cash flow and the alleged contraction of 
production constituted an indication of the company's fi nancial losses;  and (ii) after finding that the 
indicators corresponding to production and the domes tic product's share of domestic consumption had 
improved, reached the contradictory conclu sion that these indicators had deteriorated.341  Moreover, 
they point out that the Commission found that the performance of the domestic industry with respect 
to the other factors (sales, capacity utilization, pr oductivity, employment, wages and production) was 
"quite favourable".  In their opinion, the overall picture  of the domestic industry indicated that it was 
growing and not experiencing a situation of significant overall  impairment within the meaning of 
Article 4.1(a) of the Agreement on Safeguards.342 
7.247  Fourth, the complainants assert that the appli cation of the provisional safeguard measure was 
inconsistent with Articles 6, 3.1, last sentence, a nd 4.2(c) of the Agreement on Safeguards.  In this 
respect, they point out that in the Preliminary Resolution the Commission failed to give a reasoned 
and adequate explanation of the existence of critical circumstances  that would justify the imposition 
                                                      
339 Complainants, opening stat ement at the first meeting of the Pane l, paragraphs 86-88.  Likewise, the 
complainants consider that  there is no support for the Dominican Republic's ex post explanation that the 
production of "other products" did not exceed 15 per cent of the total output of the Bags Division.  See complainants, opening statement at th e second meeting of the Panel, para graphs 52-53.  Furthermore, the 
complainants point out that Article 3.6 of the Anti-Dump ing Agreement is not applicable to safeguards.  The 
complainants add that the explanations of the Dominican Republic concerning the company's depreciation and amortization costs are ex post  and that the Commission did not carry out a proportional assessment of these 
costs in relation to the production of products different  from the like or directly competitive product or the 
production intended for export.  See, complainants, opening statement at the second meeting of the Panel, paragraphs 54-56. 
340 Complainants, first written submission, paragraphs 286 and 313-320;  opening statement at the first 
meeting of the Panel, paragraph 95. 
341 Complainants, first written submission, paragraphs 321-323.  Moreover, the complainants point out 
that some of the explanations provided in the present proceedings by the Dominican Republic concerning these 
factors are ex post .  See complainants, opening statement at the first meeting of the Panel, paragraph 84;  
second written submission, paragraphs 223-225. 
342 Complainants, first written submission, paragraphs 286 and 367-368. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 86   
  of a provisional measure.
343  In their opinion, there is no reason for interpreting the standard of proof 
of serious injury differently in a fi nal and in a preliminary determination.344 
(ii) Dominican Republic 
7.248  The Dominican Republic rejects the claims of the complainants and replies that they are 
based on an erroneous interpretation of  the facts and the applicable law.345  In its opinion, the Panel 
should reject the claim that the preliminary and definitive determinations of serious injury are 
inconsistent with Articles 2.1, 3. 1, last sentence, 4.1(a), 4.2(a), 4.2(c) and 6 of the Agreement on 
Safeguards and with Article XIX:1 of the GATT 1994.346 
7.249  Concerning the complainants' first argument, th e Dominican Republic claims that neither the 
Agreement on Safeguards nor the previous decisions  of panels or the Appellate Body oblige the 
investigating authorities to undertake a separate anal ysis of each segment of the domestic industry for 
its injury determination.347  Moreover, it points out that in its analysis it considered information on 
both bags and tubular fabric, having based its an alysis on the financial statements of the 
Bags Division which produces both products.  For th e same reason, it asserts that it took account of 
sales of tubular fabric to domestic buyers.348  Likewise, it asserts that, ev en though the Bags Division 
also produces other products which were not unde r investigation, the like product constituted more 
than 85 per cent of the Division's total output.349  Moreover, it considers that there is no obligation to 
limit the analysis of injury to the production for the domestic market, to the exclusion of the part 
exported.350 
7.250  With regard to the complainants' second argumen t, the Dominican Republic maintains that in 
its preliminary determination the Commission took the productivity factor into account, since it 
measured both the trend in the volume and value of production and the trend in the number of employees during the period of investigation and, on the basis of these data, was able to calculate the 
productivity for the period.  In its opinion, Article  4.2(a) of the Agreement on Safeguards does not 
require that each of the factors relating to injury be formally set out under separate headings;  it is 
enough to demonstrate that the competent authorities ev aluated each of them.  It also considers that 
                                                      
343 Complainants, first written submission, paragraphs 286, 370 and 374-379. 
344 Complainants, second written submission, paragraphs 227-228;  reply to Panel questions Nos. 143 
and 146.  Furthermore, the complainants consider th at the Commission did not expl ain why the existence of 
significant financial losses ha d jeopardized the sustainability of the domes tic industry.  They also consider that 
neither did other indicators of serious injury in the Pr eliminary Technical Report (such as the performance of 
imports, production and stocks) demonstrate the existence of serious injury which it would be difficult to repair.  
See complainants, first written submission, paragraphs 374-378. 
345 Dominican Republic, first written submission, paragraphs 344-345. 
346 Dominican Republic, first written submission, paragraph 374, 407-408 and 435-436. 
347 Dominican Republic, first written submission, paragraphs 348, 351 and 361;  second written 
submission, paragraph 96. 
348 Dominican Republic, first written submission, paragraphs 358-359. 
349 In its opinion, by the analogous application of the provisions of Article 3.6 of the Anti-Dumping 
Agreement, the competent au thority was able to use the information corresponding to the Bags Division, which 
is responsible for the production of the more restrict ed group of products that includes the like product. 
350 Dominican Republic, second written submission, paragraphs 98-100.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 87 
  
  Article 6 of the Agreement on Safeguards does not require the analysis of the critical circumstances 
indicators for a provisional measure to be as strict as in the definitive phase.
351 
7.251  In relation to the complainants' third argum ent, the Dominican Republic asserts that in 
examining the injury indicators, the competent authority assessed the overall picture  of the domestic 
industry to determine whether there had been significant overall impairment .  In its opinion, the 
analysis of the indicators in the Final Techni cal Report indicated that as from 2007 the domestic 
industry had suffered financial losses which had incr eased every year.  Likewise, it asserts that the 
domestic industry's market share decreased up to 2008 and only in 2009 managed to exceed the share 
it had achieved in 2006.  According to the Domini can Republic, an investigating authority does not 
have to examine the effect of every individual factor  and is only required to explain the impact of the 
relevant factors on the domestic industry and whether that impact is resulting in an overall significant 
impairment  of its situation.352  In its opinion, the findings e xpressed in the resolutions and the 
technical reports constitute a reasoned and ad equate explanation of  its determination.353 
7.252  With respect to the complainan ts' fourth argument, the Dominican Republic sees no need for 
the Panel to make a finding concerning the provision al measure, which was replaced by the definitive 
measure with retroactive effect, in order to achieve  a positive solution to the dispute.  Nevertheless, it 
asserts that the Commission correctly assessed the seri ous injury in the preliminary determination and 
adequately established that delay in adopting a pr ovisional measure would ha ve resulted in damage 
difficult to repair.354 
(b) Main arguments of the third parties 
(i) Colombia 
7.253  Colombia considers that the dispute between the parties over the provisional measure affords 
the Panel a unique opportunity to rule on what should be understood by critical circumstances in 
Article 6 of the Agreement on Safeguards.  Colomb ia suggests that the Panel should consider, as 
factors that make the damage difficult to repair , aspects of the economic reality  of the enterprise, such 
as its inventories, sales, profit margins and the pri ce of like products, which should be compared with 
the most recent (in the last six months) fluctuations  in imports, in order to determine whether, if no 
provisional measure were imposed, the damage would be  difficult to repair.  Without taking a position 
on the facts of the case, Colombia invites the Pa nel to rule on the scope of this obligation.355 
(ii) United States 
7.254  The United States considers that the Panel s hould examine whether the provisional measure 
had expired before the consultation procedure began, since in that case the measure would fall outside 
its terms of reference.  Assuming that the measure falls within the terms of reference, it would be 
                                                      
351 Dominican Republic, first written submission, paragraphs 367-374;  reply to Panel 
questions Nos. 145-146.  The Dominican Republic affirms that Article 6 of the Agreement on Safeguards refers 
to "critical circumstances" in which any de lay would cause damage difficult to repair. 
352 Moreover, the Dominican Republic points out that the overall picture  of the domestic industry is 
revealed by the injury factor analysis in the Final Technical Report and the financial statements of the Bags Division. 
353 Dominican Republic, first written submission, paragraphs 376-385, 387, 390-396 and 407-408. 
354 Dominican Republic, first written submission, paragraphs 410, 413-415, 419-436;  reply to Panel 
question No. 38. 
355 Colombia, third party written submission, paragraphs 66, 69 and 71. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 88   
  necessary to examine whether making findings in th is respect would facilitate a positive solution to 
the dispute.  If not, this might be an appropriate  situation for applying procedural economy.  With 
regard to the standard of proof of injury for th e purposes of the provisional measure, the United States 
asserts that, under the terms of Articles 6, 2 and 7 of the Agreement on Safeguards, a Member can 
impose a provisional measure only if it has determined that there is clear evidence  that increased 
imports have caused or are threatening to cause serious injury and that there are "critical 
circumstances where delay would cause damage which it would be difficult to repair".
356 
(iii) Panama 
7.255  Panama considers that the investigating author ity did not carry out a detailed serious injury 
analysis, nor did it produce objective and positive ev idence in support of its investigation or the 
application of the safeguard measures.  It also cons iders that, in view of the investigating authority's 
failure to establish a clear and objective defin ition of the domestic industry and unforeseen 
developments resulting in serious injury through increased imports, and to demonstrate that the 
increase in imports was a decisive factor in the ch ange in the market, the Dominican Republic was not 
in a position to conclude that these factors had been properly verified.  Therefore, the 
Dominican Republic acted inconsistently with Articles 4.2(a) and 2.1 of the Agreement on 
Safeguards.357 
(iv) European Union 
7.256  The European Union observes that  if the complainants wanted to challenge the provisional 
measure, they should have submitted their request fo r the establishment of a panel before the measure 
expired.  Concerning the standard of proof of in jury for the purposes of the provisional measure, it 
asserts that Articles 4.1(a) and 4.1(b) define serious injury  and threat of serious injury  for the 
purposes of the Agreement on Safeguards without distinguishing between the provisional and 
definitive measures.  Likewise, ne ither does Article 4.2(a) distinguish between the provisional and 
definitive measures.  Consequently, the preliminar y determination under Artic le 6 of the Agreement 
on Safeguards must be based on clear evidence a nd a reasoned and adequate explanation of the 
existence of serious injury.358 
(c) Assessment of the Panel 
7.257  The Panel will examine the claim advanced by the complainants that the preliminary and 
definitive determinations of serious injury to the domestic industry made by the Commission are 
inconsistent with Articles 2.1, 3. 1, last sentence, 4.1(a), 4.2(a) and 4.2(c) of the Agreement on 
Safeguards and with Article XIX:1(a) of the GATT 1994. 
7.258  Of the four questions raised by the complain ants concerning the determination of serious 
injury, two deal solely with the preliminary dete rmination (the first relates to the Commission not 
having examined the productivity factor in the pre liminary determination of serious injury;  the 
second to the Commission not having provided a reasone d and adequate explana tion with regard to 
the critical circumstances).  Taking into account the observations made earlier in this report359, in this 
section the Panel will begin its analysis with the two remaining questions which relate to both the 
                                                      
356 United States, reply to Panel questions Nos. 1 and 18. 
357 Panama, third party written submission, paragraphs 32-34. 
358 European Union, reply to questions Nos. 1 and 18 from the Panel. 
359 See paragraph 7.22 of the present Report.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 89 
  
  preliminary and the definitive determinations:  (i ) whether the Commission found serious injury even 
though the factors indicated the contrary or being inadequately assessed, there by acting inconsistently 
with Articles 4.1(a), 4.2(a), 3.1, last sentence, and 4.2(c) of the Agreement on Safeguards;  and 
(ii) whether the Commission failed to carry out a disaggregated and complete analysis of the domestic industry for the purposes of the serious injury determinations, acting inconsistently with 
Articles 4.2(a), 3.1, last sentence, and 4.2(c) of the Agreement on Safeguards. 
(i) Whether the Commission concluded that there was serious injury even though the factors 
indicated the contrary or were inadequately assessed 
7.259  The relevant parts of Article 4 of th e Agreement on Safeguards read as follows: 
Determination of Serious Injury or Threat Thereof 
1. For the purposes of this Agreement: 
(a) "Serious injury" shall be understood to mean a significant overall impairment 
in the position of a domestic industry; 
… (c) in determining injury or threat thereof, a "domestic industry" shall be 
understood to mean the producers as a whole of the like or directly competitive products operating within the territory of a Member, or those whose collective output of the like or directly competitive products constitutes a major proportion of the total 
domestic production of those products. 
2(a) In the investigation to determine whether increased imports have caused or 
are threatening to cause serious injury to a domestic industry  under the terms of this 
Agreement, the competent authorities shall evaluate all relevant factors of an objective and quantifiable nature having a bear ing on the situation of that industry, in 
particular, the rate and the amount of the increase in imports of the product concerned 
in absolute and relative terms, the share of the domestic market taken by increased 
imports, changes in the level of sales, pr oduction, productivity, capacity utilization, 
profits and losses, and employment. 
… 2(c) The competent authorities shall publish promptly, in accordance with the 
provisions of Article 3, a detailed analysis  of the case under investigation, as well as a 
demonstration of the relevance of the factors examined. 
7.260  The Appellate Body has indicated that the objective evaluation  that must be made by a panel 
of a claim articulated under Article 4.2(a) of the Agreement on Safeguards consists, in principle, of 
two elements (one formal and the other substantive) .  The formal aspect involves determining whether 
the competent authority has evaluated all relevant factors  contained in that provision.  The substantive 
aspect consists in establishing whether the compet ent authority has given a reasoned and adequate 
explanation of the way in which the factors corroborate its determination.
360  The Panel has already 
                                                      
360 Appellate Body Report, US – Lamb , paragraph 103. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 90   
  indicated that it considers it appropriate to fo llow the standard of review laid down by the 
Appellate Body.
361 
7.261  In the present case, the complainants raised  jointly, with respect to the provisional and 
definitive determinations, a question which involv es the substantive aspect of the Panel's serious 
injury evaluation and which relates to whether the Commission provided a reasoned and adequate 
explanation of its determination when evaluating the factors mentioned in Article 4.2(a) of the 
Agreement on Safeguards.362 
7.262  The Panel will first examine whether the findings  and conclusions of the Commission, with 
respect to the factors to which Article 4.2(a) of  the Agreement on Safeguards refers, are supported by 
the evidence that the Commission had before it.  In particular, it will examine the situation relating to 
the factors in dispute:  inventories, production, cash flow, share of domestic market taken by imports 
and financial losses.  Then, following the anal ysis suggested by the Appellate Body in Argentina – 
Footwear (EC) , it will go on to examine whether the Commission concluded that there had been 
serious injury on the basis of the indicators evaluated and taking into account the overall position  of 
the domestic industry.363 
Findings of serious injury made by the Commission 
7.263  In its Preliminary Resolution, the Commission established the following: 
48. … [I]n accordance with the data cite d in the Preliminary Technical Report, it 
can be seen that the domestic industry is in critical circumstances due to a 206 per 
cent reduction in its financial performance.  In value terms, stocks grew by 199 per 
cent, while increasing by 169 per cent in volu me.  Likewise, the industry's level of 
production contracted sharply, which made it impossible to implement the company's plans for expansion. 
49. For the foregoing reasons and after havi ng evaluated the relevant factors, the 
Commission was able to find that the increas e in imports of the product investigated 
has caused serious injury to the domes tic industry because it suffered significant 
financial losses during the period investigated , jeopardizing the sustainability of this 
important domestic industry, so that an y delay would entail damage which it would 
be difficult to repair.
364 
7.264  From this passage, the Panel notes that the se rious injury factors on which the Commission 
based its Preliminary Resolution , apart from increased imports, were as follows:  (i) inventories;  
(ii) production;  and (iii) profits and losses.  The Commission did not make reference in this 
Resolution to the way in which it considered othe r factors mentioned in Article 4.2(a) of the 
Agreement on Safeguards.  In particular, the Prelimin ary Resolution is silent on the following factors:  
(i) the share of the domestic market taken by increased  imports;  (ii) changes in the level of sales;  
(iii) productivity;  (iv) capacity utilization;  and (v) employment. 
                                                      
361 See paragraphs 7.4 to 7.10 of the present Report. 
362 As previously pointed out, the complainants also put forward an argument that would involve a 
formal analysis of the serious injury factors menti oned in Article 4.2(a) of the Agreement on Safeguards 
(relating to whether the Commission evaluated the productivity factor).  This argument was deployed only with 
respect to the provisional determination. 
363 Appellate Body Report, Argentina – Footwear (EC),  paragraphs 138-139. 
364 Preliminary Resolution, Exhibit CEGH-5, paragraphs 48-49.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 91 
  
  7.265  The Preliminary Technical Report , which served as a basis for the findings of the 
Commission, indicates that the DEI examined the following indicators:  (i) production;  (ii) installed 
capacity;  (iii) utilized capacity;  (iv) sales;  (v) em ployment;  (vi) wages;  (vii) level of exports;  
(viii) cash flow;  (ix) investment;  (x) product pr ices;  (xi) costs;  (xii) profits or losses;  
(xiii) inventories;  (xiv) domestic market share taken by imports;  and ( xv) apparent consumption.
365 
7.266  Among the factors listed, in its Preliminary Technical Report, the DEI recorded a positive 
performance by the domestic industry during the period of  investigation in:  (i) sales;  (ii) installed 
and utilized capacity;  (iii) employment and wages;  (iv) export value;  (v) prices of the like domestic 
product;  and (vi) investment.  Moreover, according to the Preliminary Technical Report, the Commission lacked information rela ting to the cash flow factor and did not examine the productivity 
factor.  Finally, the factors that the Commissi on found to have followed an adverse trend and on 
which it based its determination of injury, apart fro m increased imports, are as follows:  (i) costs;  
(ii) profits and losses;  (iii) i nventories;  and (iv) production.
366 
7.267  At the same time, in the Definitive R esolution the Commission concluded that: 
37. The performance of imports in rela tion to domestic production continued to 
show an upward and sustained trend during th e period investigated.  It is therefore 
obvious that the increase in imports has caused injury to the domestic industry 
inasmuch as it was verified that the incr ease in the value and volume of the imports 
was the cause of a significant drop in the domestic industry's share of apparent 
domestic consumption. 
38. Moreover, as a result of the incr ease in imports of the product under 
investigation, the firm suffered significant financial losses during the period investigated, which can be seen from the increase in stocks, the reduced cash flow, 
and the sharp contraction in its level of production. 
… 41. When it visited FERSAN, the Commission was able to confirm that the 
company had purchased new machinery as part  of its adjustment plan, which was 
helping to increase the installed capacity for manufacturing square-bottom and valve 
bags, with a production capacity of twice the domestic demand.  Moreover, FERSAN 
had added a third work shift.
367 
7.268  From the this passage, the Panel concludes th at the serious injury factors on which the 
Commission based its Definitive Resolution , apart from increased imports, were as follows:  (i) the 
share of the domestic market taken by imports;  (ii)  profits and losses;  (iii) inventories;  (iv) cash 
flow;  and (v) production.  In its Definitive Reso lution the Commission gave no indication of how it 
treated other factors mentioned in Article 4.2(a) of  the Agreement on Safeguards.  In particular, the 
Definitive Resolution is silent on the following f actors:  (i) changes in the level of sales;  
(ii) productivity;  and (iii) employment. 
                                                      
365 See Preliminary Technical Report, Exhibit CEGH-7, pages 77-84. 
366 Ibid. 
367 Definitive Resolution, Exhibit CEGH-9, paragraphs 37-38 and 41. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 92   
  7.269  In its Final Technical Report , the DEI examined the following indicators:  (i) production;  
(ii) installed capacity;  (iii) utilized capacity;  (iv) productivity;  (v) sales;  (vi) employment;  
(vii) wages;  (viii) level of exports;  (ix) cash flow;  (x) investment;  (xi) product prices;  (xii) costs;  
(xiii) profits and losses;  (xiv) inventories;  (xv)  domestic market share taken by imports;  and 
(xvi) apparent consumption.
368 
7.270  Out of the factors mentioned, in its Final Technical Report the DEI noted a positive trend 
during the period of investigation in:  (i) installed a nd utilized capacity;  (ii) productivity;  (iii) sales;  
(iv) employment and wages;  (v) exports;  (vi) investment;  and (vii) prices of the like domestic 
product.  Finally, the factors that the Commission found to have followed an adverse trend and on 
which it based its determination of injury, ap art from increased imports, were as follows:  
(i) production;  (ii) cash flow;  (iii) costs;  (iv) pr ofits and losses;  (v) inventories;  and (vi) domestic 
market share taken by imports.369 
7.271  The complainants claim that, in the prelimin ary and definitive Resolutions, the Commission 
concluded that there had been serious injury, despite  the fact that the indicators examined (production, 
cash flow, costs, profits and losses, inventories, and share of apparent domestic consumption) 
indicated the opposite or were inadequately evalua ted.  The Dominican Republic disagrees and asserts 
that, in examining the injury indicators, in both the preliminary and the definitive Resolutions, the 
competent authority made an evaluation of the overall picture  of the domestic industry. 
7.272  Below, the Panel will examine the Commission's eval uation of the factors in dispute.  It will 
then examine the Commiss ion's assessment of the overall position  of the domestic industry. 
Analysis of serious injury factors under Ar ticle 4.2(a) of the Agreement on Safeguards 
Production 
7.273  The complainants point out that, in the Prel iminary and Final Technical Reports, the DEI 
established that production had increa sed steadily and uninterruptedly370 and that, nevertheless, in 
contradiction of this, in its preliminary and definitive Resolutions the Commission concluded  that 
production had contracted.371  For its part, the Dominican Republic admits that in absolute terms 
production increased (both in volume and in value);  however, it points out that the value decreased 
when compared with the volume.372 
7.274  As already mentioned, in the preliminary and definitive Resolutions the Commission 
concluded that the industry's level of production ha d suffered sharp contractions, which had made it 
impossible for FERSAN to implement its plans for expansion.373 
7.275  However, with respect to this factor, the DEI indicated, in its preliminary as well as in its 
Final Technical Report, that the volume of pro duction had increased by 25 per cent between 2006 and 
2007, by 31 per cent between 2007 and 2008, and by 17 per cent between 2008 and 2009.  The total 
                                                      
368 See Final Technical Report, Exhibit CEGH-10, pages 72-85. 
369 Ibid. 
370 The complainants mention that this finding concerning the trend in production is reflected in 
Table 20 of the Preliminary Technical Report (p. 78).  Complainants, first written submission, paragraph 334. 
371 Complainants, first written submission, paragraph 337. 
372 Dominican Republic, first written submission, paragraphs 392-393. 
373 Preliminary Resolution, Exhibit CEGH-5, paragr aph 48;  Definitive Resolution, Exhibit CEGH-9, 
paragraph 38.  See paragraphs 7.263 and 7.267 of the present Report.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 93 
  
  increase in production by volume over the period 2006 to 2009 was 91 per cent.  With respect to the 
value of production, the DEI indicated that it ha d increased by 4 per cent between 2006 and 2007, by 
41 per cent between 2007 and 2008, and by 11 per cent between 2008 and 2009.  The total increase in 
production by value over the period 2006 to 2009 was 63 per cent.
374  The DEI reflected this in the 
following table: 
Table 20.  Volume and value of the production of the domestic manufacturer of 
polypropylene bags and tubular fabric375 
 
No. Indicator Rate of increase, % Cumulative 
increase 
  2007/ 2006 2008/ 2007 2009/ 2008 2009/ 2006 
1 Production by volume (kg) 25% 31% 17% 91% 
2 Production by value (DR$) 4% 41% 11% 63% 
3 Installed capacity 58% 0% 0% 58% 
 
7.276  On the basis of the information that can be extracted from the Preliminary and Final 
Technical Reports, and as distinct from what is reflected in the conclusions of the Commission, domestic production of the directly competitive produc t increased steadily in percentage terms, both 
in value and in volume.  From the table itself in th e Final Technical Report, it follows that, in volume, 
domestic production recorded a cumulative increase of 91 per cent while, in terms of value, it increased by 63 per cent, over the period of investigation. 
7.277  At the same time, the explanation that the Dominican Republic provided in the proceedings 
before the Panel, namely, that production increased more  in terms of volume than of value, is not to 
be found either in the resolutions of the Commission or  in the technical reports of the DEI and, in any 
event, does not alter the fact that the domest ic industry performed well during the period of 
investigation. 
7.278  Therefore, the Panel finds that, with respect to the production factor, the complainants have 
demonstrated that the Commission did not provide, either in its preliminary or in its definitive 
determination, a reasoned and ade quate explanation of the performance of that factor during the 
period of investigation and its relations hip with the finding on serious injury. 
Inventories 
7.279  The complainants claim that in the Prelimin ary and Final Technical Reports the Commission 
confined itself to establishing inventory levels at th e beginning and end of the period of investigation, 
but failed to explain the nature of the trend over th e course of the period.  In addition, they question 
how inventories could have increased when produc tion and sales were increasing and suggest that the 
explanation of the increase could be that the invent ories included other products that did not form part 
of the investigation.
376  For its part, the Dominican Republic asserts that the total level of inventories 
increased during the period of investigation becau se, although sales increased more rapidly than 
production in percentage terms, they grew less in  absolute terms as they began from a lower base and 
                                                      
374 Preliminary Technical Report, Exhibit CEGH-7, p.77;  Final Technical Report, Exhibit CEGH-10, 
page 73. 
375 Preliminary Technical Report, Exhibit CEGH-7, page 78;  Final Technical Report, Exhibit 
CEGH-10, page 74. 
376 Complainants, first written submission, paragraphs 340-342;  reply to questions Nos. 139-140 from 
the Panel. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 94   
  therefore inventories continued to increase.  Likewise, it points out that although the DEI did not 
provide figures for inventories year by year, these fi gures are contained in the financial statements of 
the Bags Division, which formed the b asis for the Commission's determinations.
377 
7.280  With respect to this factor, the Commission not ed in the Preliminary Resolution that, during 
the period of investigation, inventories increas ed by 169 per cent in volume and 199 per cent in 
value.378  In the Definitive Resolution it was men tioned only that inventories had increased.379  In the 
Preliminary and Final Technical Reports, the DEI sa id exactly the same as the Commission in the 
Preliminary Resolution.380  Neither the Commission nor the DEI provided any additional explanation 
concerning the evaluation of this factor. 
7.281  Article 4.2(a) of the Agreement on Safeguards does not require any particular method to be 
followed for examining each factor.  For its part, Ar ticle 4.2(c) requires the competent authorities to 
publish a detailed analysis of the case under investig ation as well as a demonstration of the relevance 
of the factors examined.  Furthermore, Article 3. 1, last sentence, of the Agreement on Safeguards 
stipulates that the report published by the author ities must set forth thei r findings and reasoned 
conclusions on all pertinent issues of fact and la w.  What these provisions require is that the 
competent authorities evaluate all relevant factors of  an objective and quantifiable nature and set forth 
findings and reasoned conclusions. 
7.282  In the present case, as the complainants point  out, the Commission only provided information 
on the trend in inventories with respect to the end points of the period of investigation (that is, the 
beginning and end), without offering any reasoned ad ditional explanation of how this information tied 
in with its conclusion.  From the information provided by the Commission there is no way of telling 
how this factor behaved during the period of inves tigation.  The Panel therefore considers that the 
explanation provided by the Commission concerning  the performance of inventories is neither 
adequate nor reasoned. 
7.283  Moreover, with regard to the Dominican Republic's assertion that the information 
corresponding to this factor can be derived from th e financial statements of the Bags Division, the 
Panel considers that it is not enough to cite the evidence that the competent authority had at its 
disposal in order adequately to explain this trend, since it is not the task of the Panel to carry out a 
de novo  examination based on evidence provided by the parties in the internal procedure. 
7.284  Therefore, the Panel finds that, with respect to  the inventories factor, the complainants have 
demonstrated that the Commission did not provide, either in its preliminary or in its definitive 
determination, a reasoned and ade quate explanation of the performance of this factor during the 
period of investigation and its relations hip with the finding on serious injury. 
Financial losses 
7.285  According to the complainants, the technical reports indicate that the competent authorities 
evaluated profits and losses as they related to the company FERSAN.  In view of the fact that 
                                                      
377 Dominican Republic, first written submission, paragraphs 394 and 396;  reply to question No. 141 
from the Panel. 
378 Preliminary Resolution, Exhibit CEGH-5, page 48. 
379 Definitive Resolution, Exhibit CEGH-9, page 38. 
380 Preliminary Technical Report, Exhibit CEGH-7, page 82;  Final Technical Report, Exhibit 
CEGH-10, page 82.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 95 
  
  FERSAN also makes other products and engages in e xport activities, the complainants consider that 
the financial losses at company level do not automati cally explain the losses of the domestic industry 
as defined by the Commission.  Moreover, they cons ider that the Commission also failed to explain 
whether or not the pre-tax profit and loss calcula tion included depreciation costs, as well as indirect 
costs.
381  For its part, the Dominican Republic points ou t that the information on financial losses could 
not be ascribed to other products or activities carried  out by other divisions of the FERSAN company, 
since the analysis was conducted on the basis of financial information for the Bags Division.  
Moreover, the Dominican Republic considers that  the complainants, in suggesting that the 
depreciation costs and indirect costs should not have been included in the cost of production, seek to ignore the basic principles of accountancy applicable  to the calculation of pre-tax profits and losses in 
corporate financial statements.
382 
7.286  With respect to the profit and loss factor, th e Commission noted, in both its preliminary and 
definitive Resolutions, that the domestic industry's fi nancial result had declined by 206 per cent and 
that serious injury had been caused to the industr y, since it had suffered significant financial losses 
during the period of investigation.383  In the Definitive Resolution, the Commission added that "the 
company had significant financial losses during the period investigated, as ev idenced by the increase 
in inventories, the decrease in cash flow, and th e sharp contractions in its level of production".384 
7.287  For its part, in its technical reports, the DEI indicated that from 2006 to 2007 the company 
recorded a decrease in the pre-ta x result for the period of 116 per cent.  For the period from 2007 to 
2008, pre-tax losses increased by 296 per cent, and in the period from 2008 to 2009 pre-tax losses 
increased by 27 per cent.  The DEI suggests that this situation appears to have been influenced by a 
significant increase in sales costs.  Moreover, during the period of investigation the company 
increased the amount of its medium and long-term debt by 825 per cent, for the purpose of buying 
more modern machinery and improving its productive  efficiency.  Therefore, overall, during the 
period examined pre-tax profits fell by 206 per cent.385 
7.288  With respect to the evaluation of this fact or, the Panel considers that, inasmuch as the 
Commission provided the Bag Division's percentage increases in pre-tax losses and debts for each year of the period of investigation, as well as over the complete period of investigation, the 
complainants have failed to make the case that it di d not give a reasoned and adequate explanation of 
the performance of the factor in question. 
7.289  With regard to the complainants' argument con cerning the inclusion of other products that did 
not form part of the investigation in the anal ysis of injury, the Panel notes that the Commission 
conducted its analysis of injury by considering the Bags Division, the specific division used by 
FERSAN to manufacture the directly competitive products.  The Bags Division produces other 
products, in addition to polypropylene bags.  The Dominican Republic has stated that the directly 
competitive product accounts for more than 85 per cent of the Bags Division's total output.  The complainants have not submitted any evidence capab le of invalidating this assertion, as a matter of 
fact.  Therefore, the Panel considers that the complain ants have failed to show that in this respect the 
                                                      
381 Complainants, first written submission, paragraphs 348-349 and 351-352. 
382 Dominican Republic, first written submission, paragraphs 400-401;  second written submission, 
paragraph 103. 
383 Preliminary Resolution, Exhibit CEGH-5, paragraphs 48-49. 
384 Definitive Resolution, Exhibit CEGH-9, paragraph 38. 
385 Preliminary Technical Report, Exhibit CEGH-7, pages 81-82;  Final Technical Report, 
Exhibit CEGH-10, page 81. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 96   
  analysis of injury conducted by the Commission was not based on information that made it possible to 
present a reliable and representative overview of th e domestic industry.  This argument will be 
examined in more detail later in this section.
386 
7.290  Moreover, with regard to the consideration of indirect costs and depreciation in the evaluation 
of the production costs, the Panel considers that the complainants have failed to show that the 
Commission acted in a manner contrary to its oblig ations under Article 4.2(a) of the Agreement on 
Safeguards, since these factors also have a bearing on the situation of the domestic industry.  As 
observed by the panel in United States – Line Pipe , in a finding that was not appealed: 
If a competent authority were only to take into account costs incurred specifically in 
respect of the product under investigation, it would not comply with the Article 4.2(a) 
[of the Agreement on Safeguards] requirement to evaluate all relevant factors "having 
a bearing on the situation of" the relevant domestic industry.387 
7.291  Therefore, the Panel finds that, with respect to the profit and loss factor, the complainants 
have not made the case that the Commission failed to  provide, in its preliminary and definitive 
determinations, a reasoned a nd adequate explanation of the performan ce of this factor in relation to 
the finding on serious injury. 
Share of imports and production in apparent domestic consumption 
7.292  With respect to this factor, the complainants  argue that the Commission's conclusion, namely, 
that imports took an increasing share of apparent  domestic consumption (ADC) during the period of 
investigation while the domestic industry's share decreased, contradicts the DEI's own findings in the 
Final Technical Report388, since as Table 21 "Apparent Consumption" itself shows, whereas from 
2007 the domestic product tended steadily and uninte rruptedly to increase its share of the market, 
imports displayed the opposite trend.389  For its part, the Dominican Republic denies this and says that 
this indicator should be analysed within its contex t, namely, that of a sector which made significant 
investments between 2006 and 2009 and which, although it managed to double its sales and 
production volumes, did so at the cost of sacrif icing income from sales.   Moreover, it took the 
domestic industry until 2009 to win back a share of th e market greater than that which it had achieved 
in 2006.390 
7.293  With respect to this factor, in the Defin itive Resolution the Commission concluded that 
relative to domestic production imports had mainta ined a steadily increasing trend within the period 
of investigation.  It also indicated that the in crease in imports had caused injury to the domestic 
industry, insofar as it had been found that the incr ease in the value and volume of imports had caused 
the industry to lose a significant proportion of its share of ADC.391 
7.294  For its part, in its Preliminary and Final Te chnical Reports, the DEI noted that ADC was 
3,145,919 kg of the relevant product in 2006, 4,614,240 kg in 2007, 5,283,539 kg in 2008, and 
5,071,361 kg in 2009.  On the basis of this info rmation, the DEI estimated rates of increase of 47 per 
                                                      
386 See paragraph 7.325 of the present Report. 
387 Panel Report, US – Line Pipe, paragraph 7.227. 
388 Complainants, first written submission, paragraph 366. 
389 Complainants, first written submission, paragraphs 362-364. 
390 Dominican Republic, first written submission, paragraph 405. 
391 Definitive Resolution, Exhibit CEGH-9, paragraph 37.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 97 
  
  cent for the period from 2006 to 2007, 15 per cent for the period from 2007 to 2008 and -4 per cent 
for the period from 2008 to 2009.
392  Furthermore, it calculated th at the domestic production intended 
for the home market represented 39 per cent of ADC in 2006, 33 per cent in 2007, 36 per cent in 2008 
and 43 per cent in 2009.  At the same time, the DEI estimated that imports, as a percentage of ADC, had a 61 per cent share in 2006, a 67 per cent share in 2007, a 64 per cent share in 2008, and a 57 per 
cent share in 2009.
393 
7.295  The DEI presented the information on this indicat or in Table 21 "Apparent consumption" of 
its Preliminary and Final Technical Reports394, the relevant data from which are reproduced below: 
Variables Share, % (volume) 
2006 2007 2008 2009 
Production for the home market/ADC 39% 33% 36% 43% 
Imports investigated/ADC 61% 67% 64% 57% 
 
7.296  On the basis of this information, the DE I concluded that the domestic production of 
polypropylene bags and tubular fabric as a percenta ge of ADC had constantly decreased, falling from 
39 per cent in 2006 to 36 per cent in 2008, while th e share of imports as a percentage of ADC had 
increased.  Concerning the 2009 increas e in the domestic industry's share and the decrease in that of 
imports, the DEI suggested that this phenomenon w as a question of a cause-and-effect relationship 
basically due to the general trend in to tal imports into the Dominican Republic.395 
7.297  After analysing the information provided by the DEI, the Panel notes that the domestic 
industry's share of ADC fell only in 2007 (relative to 2006), while from that year onwards it increased steadily, even exceeding in 2009 the level it had r eached in 2006.  Correspondingly, the share of ADC 
taken by imports increased only in 2007 with r espect to the level reached in 2006.  From 2007 
onwards, however, the share of ADC taken by imports  fell steadily and in 2009 reached a level lower 
than its initial level in 2006. 
7.298  Thus, the Panel observes that there is no support for the conclusion reached by the 
Commission with respect to this indicator in the De finitive Resolution if the period of investigation is 
considered and that the information provided in th e DEI's Final Technical Report indicates that the 
trend in this indicator was favourable for the domest ic industry.  Domestic production's market share 
improved during the period of investigati on, while that of imports declined. 
7.299  The Panel therefore finds that, with respect to the share of ADC taken by imports and 
production, respectively, the complainants have made  the case that in its final determination the 
Commission failed to provide a reasoned and adequate  explanation of the performance of this factor 
during the period of investigation and of its re lationship with the finding on serious injury. 
                                                      
392 The Preliminary Technical Report refers to a growth rate of ADC of 41 per cent for the 
period 2008/2009, a figure that is corrected in the Fi nal Technical Report.  Preliminary Technical Report, 
Exhibit CEGH-7, page 82;  Final Technical Report, Exhibit CEGH_10, page 82. 
393 Preliminary Technical Report, Exhibit CEGH-7, pages 82-83;  Final Technical Report, 
Exhibit CEGH-10, pages 82-83. 
394 Preliminary Technical Report, Exhibit CEGH-7, page 83;  Final Technical Report, Exhibit 
CEGH-10, page 83. 
395 See Final Technical Report, Exhibit CEGH-10, page 85. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 98   
  Cash flow 
7.300  With respect to cash flow, the complainants assert that in the Final Technical Report the 
Commission noted that there had been a cumulative reduction in this factor during the period of 
investigation, but failed to show its  trend or development during that period.  Moreover, they point out 
that the Commission selectively considered specific in tervals of time that did not coincide with the 
period of investigation
396 to demonstrate that there had been significant falls, thereby precluding a 
complete and reliable assessment of the factor in ques tion.  In addition, they argue that the cash flow 
was evaluated at company level, without separa ting out the information corresponding to other 
products that did not form part of the investigation.397  For its part, the Dominican Republic notes that 
an analysis was carried out both for separate 12-m onth periods and for the whole of the period from 
2006 to 2009 and for this reason c onsiders that the trends during the period were analysed.  It also 
notes that the cash flow analysis was carried out on the basis of the financial statements for the 
Bags Division and not for the entire comp any, as claimed by the complainants.398 
7.301  In its Definitive Resolution, the Commission c oncluded that, "as a consequence of the imports 
of the product under investigation, the compan y [FERSAN] suffered significant financial losses 
during the period investigated, as evidenced by the increase in inventories and decrease in cash flow , 
as well as by sharp contractions in its level of production".399 
7.302  Furthermore, from the Preliminary Technical Report it appears that the DEI was not able to 
analyse this indicator until the final stage of th e investigation, when FERSAN supplied the cash flow 
statements for the period from 2006 to 2009.  At the same time, from the Final Technical Report it 
appears that the information that FERSAN submitt ed embraced the period between July 2006 and 
June 2009.  On the basis of this information, the DE I reported the data by annu al periods that covered 
July to June of each year.  According to the DEI,  the net cash available or used for operating activities 
showed a cumulative reduction for the period of 578 per cent.400  In addition, the DEI pointed out that, 
for the period from July 2007 to June 2008, as compared with the period from July 2008 to June 2009, the net cash for the company's operating activities d ecreased by 121 per cent, continuing the negative 
trend for the period from July 2006 to June 2007, as compared with the period from July 2007 to June 2008, when the net cash for the company' s operating activities decreased by 457 per cent.
401 
7.303  The most appropriate procedure would have been  for the Commission to have carried out its 
cash flow analysis by taking into account periods of time that coincided precisely with the annual 
intervals of the period of investigation.  However,  the Panel recognizes that in some circumstances it 
can be difficult for national authorities to obtain information from the interested parties in a form that coincides with this time-frame.  Although it was not id eal for the information on cash flow to have left 
out the periods from January to June 2006 and from July to December 2009, this of itself does not 
mean that the Commission's evaluation was inadequa te, since the Commission at least had before it 
                                                      
396 According to the complainants, the intervals that the Commission considered were:  (i) June 2006 to 
July 2007;  (ii) July 2007 to June 2008;  and (iii) Ju ly 2008 to June 2009.  As the period of investigation ran 
from January 2006 to December 2009, the periods that were not considered in the analysis of this factor were:  
(i) January to May 2006;  and (ii) July to December 2009. 
397 Complainants, first written submission, paragraphs 355-358. 
398 Dominican Republic, first written submission, paragraphs 403-404.  The Dominican Republic 
asserts that this follows clearly from Section 8.B of  the Final Technical Report, entitled "Analysis of the 
relevant domestic industry economic and financial indicators". 
399 Definitive Resolution, Exhibit CEGH-9, paragraph 38 (italics added). 
400 Final Technical Report, Exhibit CEGH-10, page 76. 
401 Final Technical Report, Exhibit CEGH-10, pages 76-77.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 99 
  
  information on the trend in this factor correspondi ng to annual periods and explained how the factor 
had evolved over the time periods with respect to wh ich it did have information.  The complainants 
have not explained how this aspect would have r esulted in an inadequate determination of the 
behaviour of cash flow during the period of investig ation.  Therefore, the Panel concludes that the 
complainants have not succeeded in demonstrating that the Commission failed to provide, in its 
definitive determination, a reasoned and adequate explanation of the performance of cash flow in 
relation to the finding on serious injury.
402 
Overall position of the domestic industry in the preliminary and final determinations 
7.304  According to Article 4.1(a) of the Agreement on Safeguards, serious injury is to be taken to 
mean a significant overall impairment in the position of a domestic industry.  The Appellate Body has 
stated that it is "only when the overall position  of the domestic industry is evaluated, in light of all the 
relevant factors having a bearing on a situation of  that industry, that it can  be determined whether 
there is 'a significant overall impairment' in the position of that industry".403 
7.305  To evaluate the overall position  of the domestic industry, the Panel considers it necessary to 
analyse the findings of the Commission on all the relevant factors (including the factors in dispute and the other factors analysed), as well as the findings a nd conclusions contained in the technical reports 
of the DEI on which the resolutions are based.  On th e basis of this information, it will be able to 
examine whether the competent aut hority gave a reasoned and adequate  explanation of the existence 
of significant overall impairment of the position of the domestic industry, sufficient to demonstrate 
the existence of serious injury. 
7.306  As previously mentioned, in the Preliminary Resolution the Commission analysed four injury 
factors
404 and in the Definitive Resolution six injury factors405, without referring in either of these 
resolutions to other factors mentioned in Article 4.2(a) of the Agreement on Safeguards.  In the 
Preliminary Resolution, the Commission made no reference to the performance of the following 
factors:  (i) share of the domestic market taken by increased imports;  (ii) changes in the level of sales;  (iii) productivity;  (iv) capacity utilization;  a nd (v) employment.  Likewise, in the Definitive 
Resolution, the Commission said nothing about the pe rformance of the following factors:  (i) changes 
in the level of sales;  (ii) productivity;  (iii) capacity utilization;  and (iv) employment. 
7.307  At the same time, the Preliminary Resolution,  on the basis of the factors to which the 
Commission did make reference, found that the domestic industry was in critical circumstances and, 
after the relevant factors had been evaluated, it wa s determined that the increase in imports of the 
product under investigation had caused serious inju ry to the domestic industry (inasmuch as during 
the period of investigation it had suffered significant losses that had jeopardized  its sustainability), so 
                                                      
402 In paragraph 38 of the Definitive Resolution, th e Commission noted that the decrease in cash flow 
was part of the evidence for a causa l link between the increase in imports and FERSAN's financial losses.  The 
Panel wishes to point out that its finding with respect to the cash flow determination in this section only 
involves the relationship between this factor and the serious injury determination and does not extend to the alleged causality mentioned by the Commission.  The causal  link is analysed later in this report.  See section 
VII.D.5 of the present Report. 
403 Appellate Body Report, Argentina – Footwear (EC) , paragraph 139 (original italics). 
404 The factors which the Commission expressly cons idered in the Preliminary Resolution are:  
(i) increase in imports;  (ii) stocks;  (iii)  production;  and (iv) profits and losses. 
405 The factors that the Commission expressly consider ed in the Definitive Resolution are:  (i) increase 
in imports;  (ii) stocks;  (iii) produc tion;  (iv) profits and losses;  (v) domestic industry's share of domestic 
apparent consumption;  and (vi) cash flow. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 100   
  that any delay would involve damage which it would be difficult to repair.
406  In the case of the 
Definitive Resolution, on the basis of the six factors considered, the Commission found that the 
increase in imports had caused the domestic industr y to lose a significant proportion of its share of 
ADC, thereby doing it serious injury.  Moreover, it i ndicated that, as a consequence of the increase in 
imports of the product under investigation, the company had suffered significant financial losses 
during the period of investigation, as evidenced by an  increase in inventories, a decrease in cash flow 
and sharp contractions in its level of production.407 
7.308  In addition, in the Definitive Resolution, the Commission noted that FERSAN had purchased 
new machinery as part of its adjustment plan, whic h had helped to increase the installed capacity for 
manufacturing square-bottom and va lve bags, with a production capacity  equal to twice the domestic 
demand, and that the company had added a third work shift.408 
7.309  On the other hand, the Panel f ound that, in both the prelimin ary and the final phase of the 
investigation, the DEI recorded that the following factors had performed favourably during the period 
of investigation:  (i) sales;  (ii) installed capacity and capacity utilization;  (iii) employment and wages;  (iv) value of exports;  (v) prices of the like domestic product;  and (vi) investment.
409  I n  
addition, in the Final Technical Report, the DEI noted that the productivity factor had also performed favourably.
410  It should be pointed out that in the preliminary and definitive Resolutions the 
Commission did not provide any explanation of the c onsideration that it gave to these factors in its 
serious injury determination. 
7.310  Furthermore, among the factors found by the Commission to have performed negatively 
during the period of investigation (production, cash flow, costs, profits and losses, inventories and 
production's share of apparent domestic consump tion), the Panel has already found that the 
Commission's determinations relating to production,  and share of imports a nd production in apparent 
inventories domestic consumption are not b ased on a reasoned and adequate explanation.411 
7.311  When the above is taken into account, the Commissi on's considerations in the preliminary and 
final determinations do not appear to be duly supported by the facts nor by an adequate evaluation of 
the relevant factors.  Firstly, the level of domest ic production and its shar e of apparent domestic 
consumption performed favourably within the period  of investigation.  Secondly, the Commission's 
inventory evaluation is inadequate for the reas ons already given.  Thirdly, according to the 
information provided by the DEI, the performance of the factors corresponding to sales, installed 
capacity and capacity utilization, productivity, employ ment and wages, value of exports, prices of the 
like domestic product and investment was positive.   Fourthly, the Commission also found that 
FERSAN had purchased new machinery for manufacturing bags with different characteristics, with a 
capacity equal to twice the domestic demand, and ha d added a third work shif t within the company, 
which represented a favourable aspect for the domes tic industry.  Fifthly, the only factors actually 
                                                      
406 Preliminary Resolution, Exhibit CEGH-5, paragraphs 48-49. 
407 Definitive Resolution, Exhibit CEGH-9, paragraphs 37-38 
408 Definitive Resolution, Exhibit CEGH-9, paragraph 41. 
409 See Preliminary Technical Report, Exhibit CEGH-7, pages 77-81;  Final Technical Report, 
Exhibit CEGH-10, pages 73-85. 
410 See Final Technical Report, Exhibit CEGH-10, p.74. 
411 See paragraphs 7.278, 7.284 and 7.299 of the present Report.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 101 
  
  shown to have performed unfavourably during the period of investigation are:  (i) cash flow;  
(ii) costs;  (iii) profits and losses;  and (iv) inventories.
412 
7.312  The Panel recalls that, as pointed out by the Appe llate Body, the standard for the existence of 
serious injury  under the definition contained in Article 4.1( a) of the Agreement on Safeguards is very 
strict and rigorous:  "the word 'injury' is qualifie d by the adjective 'serious', which … underscores the 
extent and degree of 'significant overall impairment' that the domestic industry must be suffering, or 
must be about to suffer, for the standard to be met".413 
7.313  Considering that the injury evaluated within the context of the Agreement on Safeguards is 
serious injury , the Panel does not believe that the fact that  four factors evaluated displayed a negative 
trend, as compared with the eviden ce that seven factors (including important elements indicative of 
the position of the domestic industry, such as pr oduction, sales, installed capacity and capacity 
utilization, and production's shar e of domestic consumption) pe rformed positively, without the 
competent authority having provided a sufficient e xplanation, can result in an adequate and reasoned 
conclusion with respect to the existence of serious injury. 
Conclusions 
7.314  For the reasons set out above, the Panel finds th at the complainants have made the case that 
the indicators of serious injury mentioned in Ar ticle 4.2(a) of the Agreement on Safeguards were 
inadequately evaluated and that the explanati ons provided by the competent authority in the 
preliminary and final determina tions do not support the conclusion that the overall position of the 
domestic industry indicated significant overall impairment .  Consequently, the complainants have 
made the case that in its preliminary and final determinations the Commission failed to provide a 
reasoned and adequate explanati on of the determination of the existence of serious injury. 
7.315  The Panel therefore concludes that the complainants  have made the case that, in its findings in 
the preliminary and final determinations on the ex istence of serious injury, the Dominican Republic 
acted inconsistently with its obligations under Articles 3.1, last sentence, 4.1(a), 4.2(a) and 4.2(c) of 
the Agreement on Safeguards.  In imposing a safeguard  measure on the basis of a determination of the 
existence of serious injury that is inconsistent with  Article 4.1(a) of the Agreement on Safeguards, the 
Dominican Republic also acted inconsistently with its obligations under Article 2.1 of the Agreement 
on Safeguards and Article XIX:1(a) of the GATT 1994. 
(ii) Whether the Commission failed to carry out a disaggregated and complete analysis of the 
domestic industry 
7.316  Having concluded in the previous section that in  its preliminary and final determinations the 
Commission failed to provide a reasoned and adequa te explanation of the preliminary and final 
determinations of serious injury, there should, in  principle, be no need to examine whether the 
                                                      
412 The Panel notes that the Commission found an  increase in imports of the product under 
investigation in absolute and relative terms.  In the co rresponding section of the present Report, the Panel found 
that the complainants had failed to demonstrate that the determination concerning increased imports was 
inconsistent with obligations under the covered agreements.  In any case, the Commission did not make a separate analysis of this factor in its preliminary and final determinations of the existence of serious injury. 
413 Likewise, the Appellate Body has indicated that the standard of serious injury  in the Agreement on 
Safeguards is a very high one when contrasted with the standard of material injury  envisaged under the 
Anti-Dumping Agreement, the Agreement on Subsidies and Countervailing Measures and the GATT 1994.  See 
Appellate Body, US – Lamb , paragraph 124. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 102   
  Commission failed to carry out a disaggregated and co mplete analysis of the domestic industry for the 
purposes of the injury analysis and whether th at failure resulted in the Commission acting 
inconsistently with Articles 4.1(a), 4.2(a), 3.1, last sentence, and 4.2(c) of the Agreement on 
Safeguards. 
7.317  However, with a view to placing on record a factual analysis of the question raised by the 
complainants, the Panel will analyse whether, as a matter of fact:  (i) the Commission failed to 
consider the production of tubular fabric for the commercial market and therefore carried out an 
incomplete analysis of the domestic industry;  a nd (ii) the Commission failed to make an adequate 
analysis of the domestic industry by considering in its analysis products different from the like or directly competitive product, as well as exports of the product in question. 
Whether the Commission made an incomplete analysis of the domestic industry 
7.318  The complainants point out that, in the determinations made by the competent authority, 
"there was no indication of disaggregated info rmation being available for the segment producing 
tubular fabric and the segment producing polypropyle ne bags, 'assumed to be a single product'".  
Moreover, "neither was there any indication of the availability of information concerning the 
production of tubular fabric not 'assumed' to be included in finished bag production.  That is … 
concerning the production of tubular fabric intende d for the commercial market".  Therefore, the 
complainants consider that in basing itself on the aggregated information of the Bags Division, the 
Commission failed to consider the information relati ng to the commercial market for tubular fabric.414 
7.319  The Panel notes that in its preliminary and de finitive Resolutions the Commission concluded 
that there had been serious injury to the domest ic industry, meaning the company FERSAN, in its 
capacity of producer of tubular fabric and polypro pylene bags.  In the Initial Technical Report, the 
DEI stated:  "It should be pointed out that in  submitting information re lating to the production 
volumes of the product under investigation the appl icant company assumed it to be a single product, 
that is, the finished bag".415  Moreover, in its Initial Resolution the Commission indicated that the 
trends in polypropylene bags and tubular fabric would be examined in conjunction.416 
7.320  At the same time, the Initial, Preliminary and Final Technical Reports indicate that, for the 
purposes of analysis of the serious injury factors, the DEI took into account the financial statements of 
the company FERSAN relating specifically to the Bags Division, the division which produces the 
two relevant products, for the years 2006-2009.417 From the analysis of the financial statements 
submitted by the Dominican Republic418 the Panel notes that the Bags Division "has as its main 
objective the production and sale of polypropylene fabric bags, mesh bags, cordage and ropes, 
intended for both the local market and the international market".419 
7.321  With regard to these financial statements, the Dominican Republic explained before the Panel 
that the Bags Division produces both tubular fabric  and polypropylene bags and that the financial 
                                                      
414 According to the complainants, it is a fact that th e company FERSAN reserves part of its output for 
the commercial market given that th e DEI found that FERSAN sells part of  the tubular fabric on the commercial 
market, for example, to the company FIDECA.  Compla inants, first written submission, paragraphs 301-302. 
415 Initial Technical Report, Exhibit CEGH- 3, page 14. 
416 Initial Resolution, Exhibit CEGH-2, page 5. 
417 Initial Technical Report, Exhibit CEGH-3, page  22;  Preliminary Technical Report, Exhibit 
CEGH-7, page 77;  Final Technical Report, Exhibit CEGH-10, pages 72-73. 
418 Exhibits RDO-13, RDO-14 and RDO-15. 
419 Exhibits RDO-13, page 000165;  RDO-14, page 000128;  and RDO-15, page 000178.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 103 
  
  statements it submitted contain information about  both products, including financial information 
corresponding to the portion of tubular fabric dest ined for the commercial market.  Moreover, it 
argued that "[t]o the extent that the bags and the t ubular fabric are produced by the same division, all 
the data on production, inventories and sales prep ared for this division necessarily include the 
production, sales and inventories relating to both products".
420 
7.322  On the basis of the above information, the Pa nel notes that, in actual fact, the Commission did 
not provide in its published report separate info rmation on tubular fabric , on the one hand, and 
polypropylene bags, on the other.  On the other hand,  the complainants have failed to demonstrate, as 
a matter of fact, that the financial statements corresponding to the Bags Division, which produces both 
tubular fabric and polypropylene ba gs, did not include information on tubular fabric intended for the 
commercial market. 
Whether the Commission included in its analysis  products different from the like or directly 
competitive product and exports 
 
7.323  In relation to the above, the complainants point out, in reply to the arguments put forward by 
the Dominican Republic in its own defence, that the Bags Division's information also includes the 
manufacture of products which are not the like or di rectly competitive product and, moreover, that 
this information includes sales for the international market of the like or directly competitive product 
(that is, exports).421 
7.324  It is not disputed that, in addition to polypropylene bags, the Bags Division produces other 
products that did not form part of the investig ation and that information corresponding to these 
products was considered in the serious injury anal ysis, since this information was not excluded from 
the financial information that formed the basi s of the competent authority's serious injury 
determination.  The Dominican Republic, however, points out that these other products constitute 
only a minor part of the Bags Division's total output, since the directly competitive product's share of the division's total output amounted to more than 85 per cent during the period.
422 
7.325  As already indicated, the Commission conducte d its injury analysis by considering the 
specific division of the company that produces the di rectly competitive products.  In addition, the 
Panel notes that, according to the Dominican Republic , the directly competitive product's share of the 
Bags Division's total output amounts to more than 85 per cent.  The complainants have not produced 
any evidence capable of invalidating this assertion, as a matter of fact.423 
7.326  The complainants have argued that the Commiss ion based itself on data that embraced more 
products than the directly competitive product, as we ll as on information that included exports of that 
product, and that the arguments of the Dominican Republic constitute  ex post  explanations.424  
Irrespective of whether, in the present case, the comp etent authority may have based its determination 
                                                      
420 Dominican Republic, first written submission, paragraph 359. 
421 Complainants, opening statement at the first meeting of  the Panel, paragraphs 86-88. 
422 Moreover, the Dominican Republic affirms that, by virtue of Article 4.2(a) of the Agreement on 
Safeguards and Article 3.6 of the Anti-Dumping Agreemen t, it was possible to use the information supplied by 
the Bags Division, which is responsible for the production of the more restricted group of products that includes the like product.  At the same time, the Dominican Republic points out that there is no obligation to limit the 
analysis solely to the production intended for the domestic market, by excluding the fraction of the like product 
that was exported.  Dominican Republic, se cond written submission, paragraphs 98-100. 
423 See paragraph 7.289 of the present Report. 
424 Complainants, opening statement at the second meeting of the Panel, paragraphs 52-53. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 104   
  on information concerning a group of products broader than the directly competitive product itself, the 
complainants have not explained how the method followed by the Commission and, in particular, the 
group of products that the Commission considered for the purposes of its analysis could have resulted 
in an inadequate explanation of the trend in th e domestic industry indicators during the period of 
investigation.  Nor have the complainants expl ained how the fact that the Commission may have 
included in its analysis information relating to e xports of the like or directly competitive product 
could have affected the outcome of the analysis carried out by the Commission and resulted in an 
inadequate explanation of the trend in the domestic industry indicators during the period of 
investigation. 
5. Whether the competent authority acted inconsistently with obligations under the 
covered agreements as regards the determinat ion of a causal link between the increase 
in imports and the serious injury 
7.327  In the previous section of this Report, the Panel concluded that, in its finding of serious injury 
in both the preliminary and the final determinati ons, the Dominican Republic acted inconsistently 
with its obligations under Articles 2.1, 3.1, last sen tence, 4.1(a), 4.2(a) and 4.2(c) of the Agreement on 
Safeguards and Article XIX:1(a) of the GATT 1994. 
7.328  Having reached these conclusions with regard  to the Dominican Republic's assessment 
relating to the determinations of serious injury, it w ould not be possible for the Panel to find that the 
competent authority had demonstrated the existen ce of a causal link between the increase in imports 
and serious injury whose existence had not been proved.
425  It is not necessary, therefore, for the Panel 
to issue any finding on whether the Dominican  Republic proved that the increase in imports caused 
serious injury to the domestic industry.426 
7.329  Nevertheless, without going any further, the Pa nel is able issue a factual finding on the 
assessment of the causal link by the Dominican Re public's competent authority, which is consonant 
with its responsibility to assess the facts in this DSU proceeding.427 
(a) Main arguments of the parties 
(i) Complainants 
7.330  The complainants argue that the Commission inco rrectly determined the existence of a causal 
link between the increase in imports and the serious in jury in the preliminary and final determinations, 
inasmuch as it failed to demonstrate:  (i) the lin k between the alleged increase in imports and the 
serious injury to the domestic industry, using a relevant analytical method;  and (ii) that the harmful effects caused by factors other than imports were not  attributed to the imports under investigation.  
Consequently, the preliminary and final determinat ions regarding the causal link were inconsistent 
with Articles 2.1, 3.1, last sentence, 4.1(a) and 4.2 of the Agreement on Safeguards, as well as with 
                                                      
425 This statement finds support in the Appellate Body Report Argentina – Footwear (EC) , 
paragraph 145;  and in the Panel Reports in Korea – Dairy, paragraph 7.87;  Argentina – Preserved Peaches , 
paragraph 7.135;  and Chile – Price Band System , paragraph 7.176. 
426 Nor is it necessary for the Panel to rule on the preliminary issue raised by the Dominican Republic 
with regard to this claim.  See paragraphs 7.98-7.111 of the present Report. 
427 This approach has been followed by panels in previous cases when it was determined that the 
complainant had not succeeded in proving one or more of the elements on which the causal link was assessed in 
the terms of Article 4.2(b) of the Agreement on Safeguards.  See also the Panel reports, Argentina – Preserved 
Peaches , paragraphs 7.135-7.139;  and Chile – Price Band System,  paragraphs 7.175-7.180.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 105 
  
  Article 6 of the Agreement on Safeguards with regard to the provisional measure, and with 
Article XIX:1(a) of the GATT 1994.
428  Moreover, they indicate that, because the 
Dominican Republic failed to comply with Article  4.2(b), second sentence, of the Agreement on 
Safeguards, the provisional and final measures are also  inconsistent with Artic le 5.1 of the Agreement 
on Safeguards.429 
7.331  As regards their first argument, the complain ants state that the Commission did not examine 
the alleged causation by means of a relevant analytical method.  Ac cording to the complainants, the 
Commission's causation analysis was limited to:  (i) two paragraphs in the Definitive Resolution 
(paragraphs 37 and 38);  and (ii) the serious injury analyses contained in the Preliminary and Final Technical Reports.
430  In their opinion, the Commission found that there was a causal link on the basis 
of mere assertions in the reports and resolutions th at the increase in imports had caused serious injury 
to the domestic industry431;  these assertions do not meet the requi rements prescribed in Article 4.2(b) 
of the Agreement on Safeguards.  The complainants  also indicate that the Definitive Resolution 
contains a confused finding regarding causation.432 
7.332  Concerning their second argument, the complainants  assert that neither the reports by the DEI 
nor the resolutions of the Commission contain a non-attribution analysis of the harmful effects caused by factors other than the imports investigated a nd that such an omission is inconsistent with 
Articles 4.2(b), second sentence, 3.1, last sentence,  and 4.2(c) of the Agreement on Safeguards.  
Specifically, according to the complainants, the Do minican Republic did not conduct a non-attribution 
analysis of the financial losses, the increase in stocks  and the reduced cash flow.  Moreover, they state 
that during the Panel proceedings the Dominican Republic put forward ex post explanations of the 
non-attribution of injury to factors other than the imports, which do not contain references to the 
competent authority's reports or resolutions.
433 
7.333  In the complainants' view, the finding of the ex istence of financial losses when the domestic 
industry's revenue had shown a large increase suggest s that these losses were ca used by factors other 
than the imports (for example, production co sts, operating costs and financial costs).434 
                                                      
428 Complainants, first written submission, paragraphs 380-381, 404 and 434;  opening statement at the 
first meeting of the Panel, paragraph 97;  second written submission, paragraphs 231-232. 
429 Complainants, second written submission, paragraph 235;  replies to Panel questions Nos. 39, 82, 85 
and 86. 
430 Complainants, first written submission, paragraphs 383 and 397;  opening statement at the first 
meeting of the Panel, paragraph 98. 
431 Complainants, first written submission, paragraphs 389-393;  opening statement at the first meeting 
of the Panel, paragraph 99.  According to the complainan ts, these assertions consist of the following:  (i) it was 
ascertained that the increased imports had caused a significant decline in the domestic industry's share of apparent domestic consumption;  and (ii) as a result of the increased imports, the firm suffered large financial 
losses during the period investigated, as could be seen  from the increased inventories, reduced cash flow and 
sharp contraction in production levels.  Compla inants, first written submission, paragraph 394. 
432 Complainants, first written submission, paragraphs  395 and 396.  According to the complainants, 
the confusion consists of referring to the increased inve ntories, reduced cash flow and contraction in production 
as evidence of financial losses.  Apparently, these effect s were not caused by the imports.  Nevertheless, the 
complainants assert that there was no  adequate non-attribution analysis. 
433 Complainants, first written submission, paragraphs  405-407, 410-411, 416-418, 423-425 and 428;  
opening statement at the first meeting of the Pane l, paragraphs 102-104;  second written submission, 
paragraph 232;  reply to Panel question No.149. 
434 Complainants, first written submission, paragraphs 412-416. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 106   
  7.334  As to the increase in inventories (even when sal es had risen to a level that exceeded output), 
the complainants consider that this could have been  caused by factors other than imports and that the 
explanations given by the Dominican Republic in this  regard cannot be found in either the reports or 
the resolutions.  They also consider  that the information on inventories refers to the Bags Division as 
a whole, which produces other goods in addition to the like or directly competitive product (in particular ropes, cordage and mesh bags) but  that the Dominican Republic did not conduct a 
non-attribution analysis in respect of the other factors.
435 
7.335  Regarding the cash flow, the complainants point out that this factor too was assessed for the 
Bags Division and that the Commission did not dis tinguish between the effects attributable to the 
production of goods or to activities other than do mestic sales (for example, exports) by this 
Division.436  Furthermore, in their view, the effects of f actors other than imports that had an effect on 
cash flow were likewise not considered separately.437 
7.336  The complainants also state that the Commis sion did not analyse the possible impact on 
FERSAN's operations caused by competition from other domestic producers that had been excluded from the consideration of the domestic industry, in order to distinguish this impact from that of 
competition from imports.
438 
(ii) Dominican Republic 
7.337  The Dominican Republic contends that, contrary to what is alleged by the complainants, the 
Commission issued findings and reasoned conclusions on the existence of a causal link in the terms of 
Articles 3.1, last sentence, and 4.2(c) of the Agreement on Safeguards.439  In its view, the evidence of 
the existence of a causal link is not limited to th e section on causation in the DEI's Preliminary and 
Final Technical Reports cited by the complainants , but also includes the DEI's analysis of the 
indicators of injury in addition to the paragr aphs in the Definitive Resolution cited by the 
complainants.  As stated, the competent authoritie s' conclusions show a direct link between the 
increase in imports and the serious injury and,  accordingly, are not based on "mere assertions".440 
7.338  In addition, the Dominican Republic states that  the complainants' assertions regarding the 
shares of the domestic industry and of imports in apparent domestic consumption are mistaken441 and 
that the Commission provided an adequate and reasoned explanation of the causation.442 
                                                      
435 Complainants, first written submission, paragraphs 418-423;  opening statement at the first meeting 
of the Panel, paragraph 107. 
436 Complainants, first written submission, paragraph 426;  opening statement at the first meeting of the 
Panel, paragraphs 108-109. 
437 For example, the increase in costs owing to high er fuel and energy prices, the increase in costs 
owing to the larger number of employees and a higher wage bill and to the payment of interest and commissions 
on loans.  Complainants, first written submission, paragraph 427. 
438 Complainants, first written submission, paragraphs 429-433;  opening statement at the first meeting 
of the Panel, paragraphs 110-111. 
439 Dominican Republic, first written submission, paragraphs 437-440. 
440 Dominican Republic, first written submission, paragraphs 437-440, 442. 
441 According to the Dominican Republic, because of the large influx of ch eap imports, the "timid 
recovery" in the domestic industry's share was only achie ved by selling "at a loss";  this was the cause of the 
financial losses suffered by the domestic industry.  As to imports, it indicates that the "slight decrease up to the 
end of the period", of an "incidental and temporary nature" did not manage to reverse the significantly upward  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 107 
  
  7.339  The Dominican Republic also contends that in the technical reports the Commission provided 
a reasoned and adequate explanation of how the fina ncial losses were attributable to the increase in 
imports, so that it cannot be maintained that a non-at tribution analysis should have been conducted in 
this regard.  Concerning the increase in inventories,  the Dominican Republic states that this can be 
explained by two factors that emerge from the DEI's technical reports:  (i) the increase in FERSAN's output;  and (ii) the impossibility of increasing market share despite prices artificially kept low.  By 
displacing sales of the domestic product, imports were one of the reasons for the increase in 
inventories, both in terms of value and volume.  The Commission's explanations regarding attribution 
of the increase in inventories to the increase in  imports were thus reasoned and adequate.
443 
7.340  With regard to the reduced cash flow, the Do minican Republic affirms that the financial 
statements used to assess serious injury were ba sed on the FERSAN division that only produces bags 
and tubular fabric, so that it could not be clai med that factors other than imports were not 
distinguished, for example, increased production cost s, operating costs and higher financial costs.  
The Dominican Republic adds that the increase in these costs is related to FERSAN's increased output 
and expansion plan, and that the trend in these factor s reflected the firm's decision to keep prices low 
and output high, taken in the light of the increase in imports.444 
7.341  With regard to the exclusion of certain dom estic producers, the Dominican Republic states 
that this was done in conformity with its domestic legislation and that both the legislation and the 
exclusion of the producers were consistent w ith the WTO Agreements.  The Dominican Republic 
adds that the two domestic producers identified by  the complainants (FIDECA and Textiles TITÁN) 
are assembly firms that add minimum value to the tu bular fabric they make in to bags.  Consequently, 
any injury suffered by FERSAN as a result of competition from these firms would be directly 
attributable to the imports of tubular fabric, wh ich is the product investigated in these proceedings.445 
(b) Main arguments of the third parties 
(i) United States 
7.342  The United States affirms that there is no basis for the complainants' claim that Article 2.1 of 
the Agreement on Safeguards requires the competent au thority to conduct a separate analysis of the 
volume of imports in order to determine whet her it was "recent enough, sudden enough, sharp 
enough, and significant enough" to cause serious injury  to the domestic industry before continuing 
with the rest of the analysis.  In its view, it suffi ces to find that imports have increased, and then, in 
the remainder of the analysis, to address the questi on of whether those increased imports have caused 
serious injury or threat of serious injury.446 
(ii) Panama 
7.343  Panama states that the Dominican Republic's i nvestigating authority did not substantiate the 
determination of serious injury and causation for an industry that enjoys a favourable situation, and 
also failed not only to prove that it is currently be ing affected by the alleged increase in imports but 
                                                                                                                                                                     
trend established by the previous in creases in 2007 and 2008.  Dominican Republic, first written submission, 
paragraphs 443-445. 
442 Dominican Republic, first written submission, paragraph 446. 
443 Dominican Republic, first written submission, paragraphs 405, 406, 447-452, 454, 456 and 457. 
444 Dominican Republic, first written submission, paragraphs 459-461. 
445 Dominican Republic, first written submission,  paragraphs 464-466. 
446 United States, third party written submission, paragraph 4. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 108   
  also to identify other factors not directly related to the imports that might have affected the domestic 
industry.  In light of the foregoing, Panama cons iders that the investigation by the investigating 
authority in order to determine the causal link was flawed.
447 
(c) Assessment of the facts 
7.344  Pursuant to Articles 2.1 and 4.2(b) of the Ag reement on Safeguards, it must be demonstrated 
that there is a causal link between increased imports  of the product concerned and the serious injury.  
When factors other than increased imports are causi ng injury to the domestic industry, such injury 
shall not be attributed to increased imports. 
7.345  In US – Wheat Gluten , the Appellate Body stated that: 
"Article 4.2(b) presupposes, therefore, as a first step in the competent authorities' 
examination of causation, that the injurious effects caused to the domestic industry by 
increased imports are distinguished from the injurious effects cau sed by other factors.  
The competent authorities can then, as a second st ep in their examination, attribute to 
increased imports, on the one hand, and, by im plication, to other relevant factors, on 
the other hand, 'injury' caused by all of these different factors, including increased 
imports.  Through this two stage process, the competent authorities comply with Article 4.2(b) by ensuring that any injury to the domestic industry that was actually 
caused by factors other than increased imports  is not 'attributed' to increased imports 
and is, therefore, not treated as if it were  injury caused by increased imports, when it 
is not.  In this way, the competent author ities determine, as a final step, whether 'the 
causal link' exists between increased imports  and serious injury, and whether this 
causal link involves a genuine and substa ntial relationship of cause and effect 
between these two elements, as required by the Agreement on Safeguards ."
448 
 
7.346  Furthermore, the Panel in Argentina – Footwear (EC), in a finding upheld by the Appellate 
Body, stated that a proper approach that could be adopted by a Panel in order to evaluate whether a 
Member has complied with the provisions of Ar ticle 4.2(a) and 4.2(b) of the Agreement on 
Safeguards with regard to a causal link would consis t of examining the following points:  (i) whether 
an upward trend in imports coincides with downward tr ends in the injury factors, and if not, whether 
an adequate, reasoned and reasonabl e explanation is provided as to why, nevertheless, the data show 
causation;  (ii) whether the analysis of the cond itions of competition between the domestic and the 
imported product demonstrate a cau sal link between the imports and the injury;  and (iii) whether 
other relevant factors have been analysed and wh ether it has been established that injury caused by 
factors other than imports has not been attributed to the imports.449 
7.347  The Panel notes that the Commission's causation analysis can be found in paragraphs 37 and 
38 of the Definitive Resolution and paragraph 49 of  the Preliminary Resolution, as well as in the 
analyses of serious injury in the Preliminary a nd Final Technical Reports, and in the section on 
causation in both technical reports. 
                                                      
447 Panama, third party written submission, paragraphs 36 and 38. 
448 Appellate Body Report, US – Wheat Gluten , paragraph 69 (italics in the original).  See also the 
Appellate Body Report, US – Lamb, paragraphs 167-168. 
449 Panel Report, Argentina – Footwear (EC), paragraph 8.229;  Appellate Body Report, Argentina – 
Footwear (EC), paragraph 145.  See also the Panel Report, US – Wheat Gluten , paragraph 8.91.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 109 
  
  7.348  The Commission concluded the following in its Preliminary Resolution: 
"49. For the foregoing reasons and after ha ving evaluated the relevant factors, the 
Commission was able to find that the increas e in imports of the product investigated 
has caused serious injury to the domes tic industry because it suffered significant 
financial losses during the period investigated , jeopardizing the sustainability of this 
important domestic industry, so that an y delay would entail damage which it would 
be difficult to repair."
450 
 
7.349  Moreover, in its Definitive Resolution, the Commission concluded: 
"37. That the performance of imports in  relation to domestic  production continued 
to show an upward and sustained trend during the period investigated.  It is therefore 
obvious that the increase in imports has caused injury to the domestic industry 
inasmuch as it was verified that the incr ease in the value and volume of the imports 
was the cause of a significant drop in the domestic industry's share of apparent domestic consumption.  38. That, moreover, as a result of the incr ease in imports of the product subject to 
investigation, the firm suffered significant financial losses during the period 
investigated, which can be seen from the increase in inventories, the reduced cash 
flow, and the sharp contraction in its level of production."
451 
 7.350  The Panel also notes that in the section entitled Causation in its Final Technical Report, after 
having referred to the legal grounds applicable to  the issue and repeating the arguments of the 
applicant enterprise, the importing and exporting firms and the countries taking part in the national 
investigation, the DEI stated that: 
"In order to determine a possible causal link and to substantiate the existence of any 
"logical connection" between the increase in imports and the injury to the domestic 
industry, in the previous point … the DEI analysed the elements of injury that could determine the existence of a direct link between the increase in imports of 
polypropylene bags and tubular fabric  and the commercial situation faced by 
FERSAN, so that the plenary meeting of the Commission may decide whether or not a definitive safeguard measure needs to be imposed."
452 
 
7.351  The DEI's Preliminary Technical Report contains almost identical wording with reference to 
the provisional safeguard measure.453 
7.352  In other words, the DEI's Preliminary and Fi nal Technical Reports confine themselves to 
citing relevant legal provisions, re peating the arguments of the interested parties during the national 
investigation procedure, and suggesting that  there are elements of injury that " could determine the 
existence" of a "direct link" betw een the increased imports of polypr opylene bags and tubular fabric 
and the commercial situation facing the domestic indust ry.  The DEI's reports do not therefore contain 
any finding, but put the decision on whether or not to impose a provisional or definitive safeguard 
                                                      
450 Preliminary Resolution, Ex hibit CEGH-5, paragraph 49. 
451 Definitive Resolution, Exhibit CEGH-9, paragraphs 37-38. 
452 Final Technical Report, Exhibit CEGH-10, page 91. 
453 Preliminary Technical Report, Exhibit CEGH-7, page 88. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 110   
  measure before the plenary meeting of the Commission .  Neither does the injury section in the 
technical reports provide any explan ation concerning the causation itself. 
7.353  None of the parties brought to the Panel's atten tion the existence of other parts of the report 
published by the competent authority that could prov ide evidence of additional considerations in the 
examination of the existence of a causal link. 
7.354  On the basis of the competent authority's findings in the preliminary and definitive 
Resolutions and in the Preliminary and Final Techni cal Reports, the Panel notes that the Commission 
concluded that there was a causal link between the increased imports and the serious injury without 
having analysed the elements to be taken into account  in order to reach such a determination.  In 
particular, the Commission concluded that the co mpany FERSAN suffered significant financial losses 
during the period investigated, which in its view was demonstrated by the increase in stocks, the reduction in cash flow, and the sharp contraction in  its level of production.  Nevertheless, in its 
preliminary and definitive Resolutions the Commiss ion does not provide any explanation of how this 
conclusion would justify the determination of th e existence of a causal link between the increased 
imports and the injury.  Neither does the Commissi on provide any analysis how it was ensured that 
the effects of the injury to the do mestic industry caused by other f actors were not attributed to the 
increased imports. 
E. W
HETHER THE DOMINICAN REPUBLIC ACTED INCONSISTENTLY WITH OBLIGATIONS UNDER 
THE COVERED AGREEMENTS AS REGARDS THE APPLICATION OF THE IMPUGNED MEASURES 
AND BY FAILING TO COMPLY WITH CERTAIN PROCEDURAL OBLIGATIONS  
7.355  The Panel will address below the claims made by the complainants regarding:  (i) the 
application of the provisional and definitive measures as regards the principle of parallelism and 
Article 9.1 of the Agreement on Safeguards;  and ( ii) compliance with certain procedural obligations. 
1. Whether the competent authority acted inconsistently with obligations under the 
covered agreements by failing to comply with the principle of parallelism  and Article 9.1 
of the Agreement on Safeguards 
(a) Main arguments of the parties 
(i) Complainants 
7.356  The complainants ask the Panel to find that th e Dominican Republic acted inconsistently with 
Articles 2.1, 2.2, 3.1, 4.2, 6 and 9.1 of the Agre ement on Safeguards by failing to respect the principle 
of parallelism between the scope of the provisional  and definitive measures and the basis for the 
determinations.454  The complainants assert that the Domi nican Republic did not comply with this 
principle because:  (i) in its analysis of the in crease in imports, serious injury and causation, the 
Commission considered all imports that entere d the Dominican Republic between 2006 and 2009, 
including those from Colombia, Indonesia, Mexico and Panama;  (ii) based on Article 9.1 of the 
Agreement on Safeguards, the Commission excluded imports from Colombia, Indonesia, Mexico and 
Panama from the application of the provisional a nd definitive measures;  and (iii) the Commission did 
                                                      
454 Complainants, first written submission, paragraphs 436-438.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 111 
  
  not, however, undertake a new analysis of the in crease in imports, serious injury and causation 
excluding imports from Colombia, Indonesia, Mexico and Panama.
455 
7.357  The complainants contend that the exclusion of certain Members from the scope of the 
measure, based on Article 9.1 of the Agreement on Safeguards, does not exempt the Dominican Republic from complying with the parallelism requirement, as in their interpretation 
Article 9.1 provides an exception both to Article 2. 1 and Article 2.2 of the said Agreement.  Likewise, 
the exclusion of certain origins pursuant to Article 9.1 of this Agreement does not exempt the 
Dominican Republic from conducting a new investiga tion excluding imports from the origins left 
outside the scope of the measure.  The complainan ts consider that, inasmuch as the Appellate Body 
has established that the principle of parallelism is a general form ula without exceptions, it applies 
irrespective of the reasons for which a Member has decided to exclude certain imports from the 
application of the measure.
456 
7.358  The complainants also state that, pursuant to Article 9.1 of the Agreement on Safeguards, the 
Dominican Republic should have ex cluded imports from Thailand from the scope of the measures as 
these accounted for 0.32 per cent of total imports dur ing the period investigated and, by not doing so, 
the Dominican Republic failed to comply with this provision.457 
(ii) Dominican Republic 
7.359  The Dominican Republic considers that the theo ry of parallelism, as established in WTO case 
law, does not apply to imports excluded from the app lication of a measure pursuant to Article 9.1 of 
the Agreement on Safeguards.458  It considers that, in the present case, the fact that the Agreement on 
Safeguards itself provides, and indeed requires, the exclusion of certain Members pursuant to Article 9.1 is highly relevant and provides support for the view that the principle of parallelism is not 
applicable.  Accordingly, in its view, Article 9.1 allowed it to exclude imports from Colombia, 
Indonesia, Mexico and Panama from the application of the measures because imports from each of 
these countries did not exceed 3 per cent and as a whole did not exceed 9 per cent.
459 
7.360  In addition, the Dominican Republic points out that, based on the findings of the Panels in 
Argentina – Footwear (EC) and US – Wheat Gluten and also of the Appellate Body in the latter case, 
Article 9.1 of the Agreement on Safeguards acts as an exception to Article 2.2 but not to Article 2.1 of 
the said Agreement.460  This would imply that this provision also acts as an exception to the principle 
of parallelism.  In its view, the absence of th e parallelism requirement wh en excluding imports under 
Article 9.1 of the Agreement on Safeguards does not lead to disproportionate results, as the exception 
to Article 9.1 is subject to conditions and imposes de minimis thresholds.  Consequently, in this 
                                                      
455 Complainants, first written submission, paragraphs 446-449. 
456 Complainants, second written submission, paragraphs 239 and 241;  oral statement at the 
first meeting of the Panel, paragraph 116;  reply to Panel question No. 156. 
457 Complainants, first written submission, footnote 387 to paragraph 450;  reply to Panel question 
No. 156. 
458 Dominican Republic, second written submission, paragraphs 107 and 110. 
459 The DEI determined that imports from Colombia represented some 0.01 per cent;  those from 
Indonesia 0.75 per cent;  those from Mexico 0.08 per cent;  and those from Panama 0.37 per cent;  and that 
together they accounted for 1.21 per cent of the Dominican Republic 's total imports.  Dominican Republic, 
first written submission, paragraphs 472-474. 
460 Dominican Republic, second written submission, para graphs 113-116 (where there is a reference to 
the Panel Report, US – Wheat Gluten,  footnote 164 to paragraph 8.171);  reply to Panel question No. 155. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 112   
  context it is likewise unnecessary to conduct a new analysis that would exclude imports from 
Colombia, Indonesia, Mexico and Panama.
461 
7.361  Lastly, regarding imports from Thailand, it ar gues that according to the Appellate Body's 
opinion in US – Line Pipe, there is no requirement to indicate a list of countries covered by or 
excluded from the application of the measure;  it  suffices simply to show that the Members in 
question are in fact excluded from the application of the measure.  Moreover, it indicates that, given 
that there were no imports from Thailand in 2009, it did not consider it necessary expressly to exclude 
Thailand from the application of the measure.462 
(b) Main arguments of the third parties 
(i) United States 
7.362  The United States points out that Article 9.1 of the Agreement on Safeguards only acts as an 
exception to the application of safeguard measures under Article 2.2 and not Article 2.1.  It also 
considers that, because Article 9.1 of the Agreement on Safeguards uses the word shall in the English 
text, it is a mandatory provision.  Consequently, if a Member seeks to justify a measure as a safeguard, this Member must prove that it has co mplied with the requirements of this provision.
463 
(ii) Nicaragua 
7.363  Nicaragua observes that the Dominican Republic  failed to comply with the principle of 
parallelism and that the Commission did not explain the reasons for which it considered that this 
principle did not have to be respected.464 
(iii) Turkey 
7.364  Turkey states that the principle of paralle lism established by the Appellate Body in 
Argentina – Footwear (EC) does not apply in the present case because certain countries were 
excluded from the application of the measure on the basis of Article 9.1 of the Agreement on 
Safeguards.  According to Turkey, the word shall in Article 9.1 lays an obligation on Members to give 
"special and differential treatment ".  It is Turkey's view that, as a developing country, it should be 
excluded from application of the measure.  It also points out that Articles 9.1 and 2.2 of the Agreement in question are provisions on the application of measures and that Ar ticle 3.1 contains the 
rules applicable to the investigation, but does not in clude any reference to Article 9.1.  Accordingly, 
in its view, there are no grounds for excluding developing countries that meet the requirements in 
Article 9.1 from the safeguards investigation.
465 
(iv) European Union 
7.365  The European Union considers that there is no rule/exception relationship between 
Articles 2.2 and 9.1 of the Agreement on Safeguards as the two provisions contain separate and 
                                                      
461 Dominican Republic, second written submission, pa ragraphs 107 and 121;  reply to Panel question 
No. 158. 
462 Dominican Republic, replies to Panel questions Nos. 157 and 198. 
463 United States, third party written submission, paragraph 16;  reply to Panel question No. 19. 
464 Nicaragua, third party written submission, paragraph 10. 
465 Turkey, third party written submission, paragraph 8;   third party statement, paragraphs 6 and 7;  
reply to question No.19 from the Panel.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 113 
  
  distinct obligations.  It is also its view that the reference to Article 9.1 of the Agreement as the reason 
for excluding certain imports from th e measure's scope may constitute the reasoned and adequate 
explanation  as to why imports from developing countries do not have to be excluded from the scope 
of the investigation.
466 
(c) Assessment of the Panel 
7.366  The complainants put forward the following two claims jointly in section VI.F of their 
first written submission:  (i) that the Dominican Republic failed to comply with the principle of 
parallelism under Articles 2.1, 2.2, 3.1, 4.2 and 6 of the Agreement on Safeguards;  and (ii) that the 
Dominican Republic failed to comply with Article 9.1 of the Agreement on Safeguards by not having 
excluded imports from Thailand from the application of the measures.467  The Panel will analyse each 
of these claims separately. 
(i) Compliance with the principle of parallelism between the coverage of the measures and the 
basis for the determinations 
The principle of parallelism in the Agreement on Safeguards 
 
7.367  As pointed out by the Appellate Body in US – Steel Safeguards , the principle of parallelism 
emerges from the parallel language used in Article 2.1 and 2.2 of the Agreement on Safeguards.468  
This principle also covers the symmetry that must exist between Articles 2.1 and 4.2 of the 
Agreement.469  It implies that the imports considered fo r the purposes of the safeguards investigation 
(in the terms of Articles 2.1 and 4.2 of the Agre ement on Safeguards) and th e products to which the 
measure is applied (in the terms of Article 2. 2 of the said Agreement) must be the same.  
Notwithstanding the foregoing, in certain circumstance a difference in the parallel requirements in 
Article 2.1 and 2.2 of the Agreement on Safeguard s may be justified if the Member imposing the 
measure establishes explicitly that the imports satisfy the cond itions for the application of the 
safeguard measure according to Artic les 2.1 and 4.2 of the Agreement.470 
7.368  The Spanish text of Article 2.1 of the Agreement on Safeguards uses the term " importaciones 
del producto " and Article 2.2 refers to the " producto importado ".  The French version uses the words 
"produit importé " and the English version the expression "pro duct being imported" in both provisions.  
Furthermore, the Spanish text of subparagraphs (a) and (b) of Article 4.2 of the Agreement on 
Safeguards uses the words " del producto de que se trate ".  The English text reads "of the product 
concerned" and the French text " du produit considéré ". 
                                                      
466 European Union, replies to Panel questions Nos. 19 and 20. 
467 When making their claim regarding parallelism, the complainants identified Article 9.1 of the 
Agreement on Safeguards, but did not explain why the Dominican Republic had acted inconsistently with its 
obligations under this provision.  The only argument put forward by the complainants in support of the claim 
that the Dominican Republic violated Article 9.1 is that imports from Thailand were not excluded from 
application of the measures. 
468 Appellate Body Report, US – Steel Safeguards, paragraph 439. 
469 Panel Report, US – Wheat Gluten, paragraph 8.168 (finding upheld by the Appellate Body in its 
Report on the same case, paragraph 96). 
470 Appellate Body Reports, US – Wheat Gluten , paragraph 98;  US – Line Pipe , paragraph 181;  US – 
Steel Safeguards , paragraph 441. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 114   
  7.369  The Appellate Body has established that when a Member seeks to exclude certain origins 
from the application of a measure, that Member mu st conduct a new analysis that takes into account 
only the impact of the origins actually covered by the measure.
471 
7.370  The four cases in which the principle of para llelism has been examined so far in the 
WTO dispute settlement mechanism ( Argentina – Footwear (EC)472, US – Wheat Gluten473, US – Line 
Pipe474, and US – Steel Safeguards475) referred to the exclusion of trading partners under FTAs or 
members of customs unions from the application of the safeguard measure.  The situation is different 
in the present case because the exclusion of certa in imports from developing countries from the 
measure's coverage was based on Article 9.1 of th e Agreement on Safeguards.  In the light of the 
discussion between the parties, the Panel considers it  necessary to address, as a prior issue, whether 
the principle of parallelism as developed in the case law until now applies to the exclusion of certain 
Members on the basis of Article 9.1 of the Agreement on Safeguards. 
The principle of parallelism in connection with the exclusion of certain Members pursuant to 
Article 9.1 of the Agreement on Safeguards 
 
7.371  In order to determine the scope of Article 9. 1 of the Agreement on Safeguards in relation to 
the principle of parallelism, the Panel will exam ine the relationship among the various relevant 
provisions. 
7.372  Article 9.1 of the Agreement on Safeguards provides the following: 
"Developing Country Members  
Safeguard measures shall not be applied agai nst a product originating in a developing 
country Member as long as its share of imports of the product concerned in the 
importing Member does not exceed 3 per cent, provided that developing country 
Members with less than 3 per cent import  share collectively account for not more 
than 9 per cent of total imports of the product concerned.2 
2 A Member shall immediately notify an action take n under paragraph 1 of Article 9 to the Committee 
on Safeguards. " 
 7.373  Article 9.1 of the Agreement on Safeguards lays down two requirements in order to be able to 
exclude products originating from certain deve loping country Members from the coverage of a 
safeguard measure, namely:  (i) the individual shar e of the developing country Member which it is 
sought to exclude from the application of the measure  shall not exceed 3 per cent of the imports of the 
Member applying the measure;  and (ii) the collective share of the developing countries that meet the first requirement shall not exceed 9 per cent of total imports of the product concerned. 
                                                      
471 Appellate Body Report, US – Steel Safeguards , paragraph 441. 
472 In Argentina – Footwear (EC ), the Argentine  authorities excluded imports from the Common 
Market of the South (MERCOSUR) from application of the measures. 
473 In US – Wheat Gluten , the United States excluded imports from Canada, a partner in the 
North American Free Trade Agreem ent (NAFTA), from the scope of  application of the measure. 
474 In US – Line Pipe, the United States excluded imports from Canada and Mexico (NAFTA partners) 
from the scope of appli cation of the measure. 
475 In US – Steel Safeguards, the United States excluded  imports from Canada and Mexico, as well as 
those from Israel and Jordan (all members of free trad e agreements with the Unite d States) from the scope of 
application of the measures.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 115 
  
  7.374  The Panel considers it appropriate to examine the wording of Articles 2.1, 2.2, 3.1, 4.2 and 
9.1 of the Agreement on Safeguards in order to co nsider the relationship between the principle of 
parallelism and Article 9.1 of the Agreement on Safeguards.  The above  provisions were cited by the 
complainants as the basis for their complaint. 
7.375  The Panel shares the view expressed by Turkey as a third party that Articles 9.1 and 2.2 of the 
Agreement on Safeguards are provisions on the application of measures.   Article 2.2 of the 
Agreement on Safeguards lays down as a general principle that "Safeguard measures shall be applied 
to a product being imported irrespective of its source. "  Article 9.1, on the other hand, provides that 
"Safeguard measures shall not be applied against a product originating in a developing country 
Member as long as ..." certain conditions set out in th e Article are met.  The Panel therefore considers 
that Articles 9.1 and 2.2 of the Agreement on Safegua rds, read together, impose an obligation to apply 
the measures to products of any origin, except tho se origins that meet the requirements set out in 
Article 9.1. 
7.376  In addition, Article 3.1 of the Agreement on Safeguards imposes the obligation to conduct an 
investigation before applying a measure.  Articles 2. 1 and 4.2 of the Agreement also provide that a 
Member may only apply a safeguard measure after having found that increased imports have caused 
or are threatening to cause serious injury to the dom estic industry.  The Panel also agrees with Turkey 
that Articles 3.1, 2.1 and 4.2 are rules relating to the investigation and analysis which the competent 
authority must undertake.  None of these three prov isions specifically refers  to Article 9.1 of the 
Agreement and neither does Article 9.1 contain any indication enabling it to be concluded that these 
provisions have to be read together. 
7.377  In the case before us, Article 9.1 of the Agre ement on Safeguards invol ves explicit departure 
from the obligation in Article 2.2 on the applicati on of safeguard measures;  this provision does not 
apply to or affect other provisions such as Articl es 2.1, 3.1 or 4.2 of the Agreement concerning the 
analysis and the investigation to be conducted by the competent authorities. 
7.378  Regarding the relationship between Article 9. 1 of the Agreement on Safeguards and the 
principle of parallelism, two criteria are relevant.  Firstly, the Panel in Argentina – Footwear (EC) 
stated the following: 
"… Article 9 exempts, subject to certain thresholds and limitations, imports from 
developing country Members from the imposition  of safeguard measures where the 
injury and causation fully reflect the e ffects of those imports from developing 
countries."
476 
 7.379  Secondly, in US – Wheat Gluten the Panel determined that: 
"… there is a requirement of symmetry under Articles 2.1 and 4.2 SA between the 
scope of the imports subject to a safeguards investigation and the scope of the imports 
subject to the application of the measure.
164, 477 
 
164 The only explicit departure from this principle in the Agreement on Safeguards is in Article 9.1 …" 
 
                                                      
476 Panel Report, Argentina – Footwear (EC), paragraph 8.85 (italics added).  See also United States, 
third party written submission, paragraph 17. 
477 Panel Report, US – Wheat Gluten, paragraph 8.171. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 116   
  7.380  It should be noted that, when examining the latter case and after having indicated that 
Article 9.1 of the Agreement on Safeguards is an  exception to the general rules set out in the 
Agreement and applies only to developing countries, the Appellate Body indicated that it did not 
consider it of relevance to the appeal.
478 
7.381  Taking into account the foregoing points of view and the analysis of the legal provisions cited 
above, the Panel considers that Article 9.1 of th e Agreement on Safeguards imposes the obligation to 
exclude from the application of the safeguard measure  a share of the imports (corresponding to those 
from developing country Members that meet the requ irements laid down in the provision) even when 
these have been taken into account in the subs tantive analysis during the investigation. 
7.382  In the present case, both the complainants and th e Dominican Republic agree that Article 9.1 
of the Agreement on Safeguards is an exception. 
7.383  In the Panel's view, when Article 9.1 of th e Agreement on Safeguards is applicable, this 
affects the scope of the obligation contained in Article 2.2.  Because of the way in which Article 9.1 
of the Agreement on Safeguards is worded479, it contains an obligation to exclude developing country 
Members that satisfy the requirements in the provision and is not a discretionary faculty given to a Member imposing a measure which it may decide to em ploy or not.  In other words, when a Member 
conducting a safeguards investigation finds, as a result of its examination, that products from certain 
origins are covered by the provisions in Article 9. 1 of the Agreement on Safeguards, it is obliged to 
grant special and differential treatment to the de veloping countries concerned when imposing the 
measure by excluding them from its application.  In such cases, in their report the competent 
authorities must provide an explanation of th e way in which the foregoing was determined. 
7.384  The findings of the Panel in US – Wheat Gluten suggest that the principle of parallelism (as 
developed until now) seeks to ensure that origins wh ich collectively make a significant contribution to 
the injury caused to the domestic industry are not  excluded from the application of the measure.
480  
Nevertheless, in the present case the exclusion was based on Article 9.1 of the Agreement on 
Safeguards, which provides that th e imports excluded must not exceed 9 per cent of the total imports 
of the Member imposing the measure, so that the exclusion of developing country Members does not 
run the risk of generating the disproportionate effects indicated. 
                                                      
478 Appellate Body Report, US – Wheat Gluten , footnote 96 to paragraph 96. 
479 The Spanish text of Article 9.1 of the Ag reement on Safeguards starts with the words " No se 
aplicarán medidas de salvaguardias … ".  The English text commences "Safeguard measures shall not be 
applied …".  The French text provides " Des mesures de sauvegarde ne seront pas appliquées … ". 
480 The Panel which heard the US – Wheat Gluten case explained this in the following terms: 
"An approach that excludes from th e application of the measure imports of certain countries if they do 
not account for a 'substantial share' of total imports and do not 'contribute importantly' to the serious injury 
caused by imports might also result in a situation where,  after multiple minor quantities of imports are excluded 
from the application of the measure, which collectively  accounted for a major proportion of imports, it would no 
longer be clear that any injury remaining that was due to the remaining imports would still achieve the threshold 
of 'serious' as that term is defined in Article 4.1(a) of the Agreement on Safeguards.  For example, assume that 
the imports of five countries, each accounting for approximatel y 10 per cent of total imports, were all deemed 
individually not to account for a 'substantial share' of total imports' and not to 'contribute importantly' to serious 
injury and on this basis were thus excluded.  Collectively, such imports account for 50 per cent of total imports.  
There is no demonstration that any injury caused by imports remaining after the exclusion of 50 per cent of total imports would still reach the threshold of ' serious  injury'." 
Panel Report, US – Wheat Gluten, paragraph 8.176 (italics in the original).  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 117 
  
  7.385  Accordingly, in cases in which the exclusion is based on Article 9.1 of the Agreement, the 
Panel does not consider it necessary to undertake a ne w analysis of the increase in imports, the injury 
and causation.  In this case, it would be enough for the competent authorities to show in their report 
that the excluded Members actually satisfied the re quirements laid down in Article 9.1 itself of the 
Agreement on Safeguards.  Moreover, the Panel agrees with the Dominican Republic that the fact that 
the Agreement on Safeguards itself, in Article 9. 1, imposes the obligation to exclude products from 
specific origins from the application of the safegua rd measure results in a departure from the usual 
application of the principle of para llelism with regard to such imports. 
7.386  As to imports from Members that do not meet th e requirements laid down in Article 9.1 of the 
Agreement on Safeguards, the safegua rd measures have to be applied irrespective of the source of the 
imports, in conformity with Ar ticle 2.2 of the Agreement. 
Analysis in the present case 
7.387  In its Preliminary Resolution, the Commission decided "not to apply provisional safeguard 
measures to imports from Mexico, Panama, Colombia  and Indonesia as they are developing countries 
which collectively account for 1.21 per cent of th e imports investigated, in conformity with 
Article 9.1 of the WTO Agreement on Safeguards".481  In its Definitive R esolution, for the same 
reasons, the Commission decided not to apply the de finitive safeguard measure to imports from these 
origins.482 
7.388  The Commission based the above findings on th e Preliminary and Final Technical Reports.  
In these technical reports, the DEI indicated that it ha d analysed all the transactions separately.  Based 
on this, the DEI found that 14 countries had exported the product investigated to the Dominican Republic during the investigation period.
483  Later, the DEI found that imports from Colombia, 
Indonesia, Mexico and Panama each accounted for less than 3 per cent of the Dominican Republic's 
total imports of the product investigated dur ing the period 2006-2009 and that these Members 
qualified as developing countries, taking into account their trade policy reviews at the WTO.  It was therefore suggested that these imports should be ex cluded from the application of the provisional and 
definitive measures as they collectively accounted for 1.21 per cent of the imports investigated.
484 
7.389  The Panel notes that imports from Colombia , Indonesia, Mexico and Panama did not 
individually exceed 3 per cent of the Dominican  Republic's total imports during the period 
investigated.  These imports therefore meet the fi rst threshold laid down in Article 9.1 of the 
Agreement on Safeguards.  Furthermore, the total share of the individual imports of 
                                                      
481 Preliminary Resolution, Exhibit-5, page 9.  On 30 March 2010, the Commission approved an 
Addendum  to the Preliminary Resolution, Exhibit-6, in which it is specified that the provisional measure would 
not apply to goods ( originating ) (the Preliminary Resolution uses the words coming from ) in Mexico, Panama, 
Colombia and Indonesia. 
482 Definitive Resolution, Exhibit-9, page 10. 
483 Preliminary Technical Report Exhibit-7, page 60;  Final Technical Report, Exhibit CEGH-10, 
pages 49-50. 
484 Preliminary technical report, Exhibit CEGH-7, pages 60, 61 and 95;  Final Technical Report, 
Exhibit CEGH-10, pages 49 and 50, 100 and 101;  in addition to the foregoing, in both Reports the DEI included a table entitled "Exclusion of developing countrie s".  This table shows the total volume and total share 
for each of the 14 Members exporting the product investigated during the investigation period.  It also shows the 
information corresponding to imports from the four Members excluded:  Colombia, Indonesia, Mexico and Panama.  Preliminary Technical Report, Exhibit CEGH-7, page 96;  Final Technical Report, Exhibit CEGH-10, 
page 102. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 118   
  Colombia (0.01 per cent), Indonesia (0.75 per cent) , Mexico (0.08 per cent) and Panama (0.37 per 
cent) amounted to 1.21 per cent of the Domi nican Republic's total imports over the period 
investigated and so remained below 9 per cent of  the Dominican Republic's total imports of the 
product concerned.  Accordingly, the collective shar e of the excluded Members, also remained below 
the second threshold prescribed in Article 9.1 of the Agreement. 
7.390  The Panel considers that the Commission, afte r having found that the product investigated 
was being imported from developing country Member s which met the thresholds determined in 
Article 9.1 of the Agreement on Safeguards, provide d a satisfactory explanation in the preliminary 
and definitive Resolutions of the reason why Co lombia, Indonesia, Mexico and Panama were 
excluded from the application of the measure. 
7.391  The Panel therefore considers that the complainants have not demonstrated that the 
Dominican Republic acted inconsistently with its oblig ations under Articles 2.1, 2.2, 3.1, 4.2, 6 and 
9.1 of the Agreement on Safeguards as regards complia nce with the principle of parallelism by failing 
to conduct a new analysis in order to determine the increase in imports, injury and causal link, 
excluding imports from Colombia, Indonesia, Mexico and Panama. 
7.392  Nonetheless, the fact that the Dominican Republic  did not violate the principle of parallelism 
in the case of Colombia, Indonesia, Mexico and Panama by excluding these countries from 
application of the measure based on Article 9.1 of  the Agreement on Safeguards does not necessarily 
imply that the Dominican Republic complied fully w ith the obligation in this provision to exclude 
imports from all relevant origins from application of the measure.  This question will be examined 
below. 
(ii) Compliance with Article 9.1 of the Agreement on Safeguards 
The obligation in Article 9.1 of the Agreement on Safeguards 
 
7.393  Until now, only one dispute at the WTO ( US – Line Pipe) has examined Article 9.1 of the 
Agreement on Safeguards.  In that case, Korea clai med that the United States had violated Article 9.1 
because it had not determined which developing coun tries would be exempt from application of the 
measure and treated all developing count ries in the same way as other suppliers.485  T h e  
Appellate Body found that the available documents revealed no effort by the United States to make 
certain that de minimis  imports from developing countries were  excluded from the application of the 
measure.486  On the basis of this approach, the Panel considers that Members which apply safeguard 
measures are obliged to adopt all reasonable measures available to them to exclude all developing 
countries that meet the requirements in Ar ticle 9.1 of the Agreement on Safeguards. 
7.394  The complainants argue that the Dominican Republic failed to comply with Article 9.1 of the 
Agreement on Safeguards by not excluding imports from Thailand from application of the measure, 
which accounted for 0.32 per cent of the Dominican Republic's total imports during the period investigated.  The Dominican Repub lic responds that it was not obliged to include Thailand, or any 
other developing country, in a list of Members exclud ed or included, but that it sufficed to show that 
this country was in fact excluded from application of the measure. 
                                                      
485 Appellate Body Report, US – Line Pipe, paragraph 121. 
486 Appellate Body Report, US – Line Pipe , paragraph 132.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 119 
  
  7.395  In US – Line Pipe , the Appellate Body determined the following: 
"We agree with the United States that Article 9.1 does not indicate how a Member 
must comply with this obligation.  There is nothing, for example, in the text of 
Article 9.1 to the effect that countries to which the measure will not apply must be expressly excluded from the measure.  Althoug h the Panel may have a point in saying 
that it is 'reasonable to expect' an express ex clusion, we see nothing in Article 9.1 that 
requires one."
487 
 
7.396  Taking into account the foregoing, although there is no express obligation in Article 9.1 of the 
Agreement on Safeguards requiring that a list of Memb ers included in or excluded from coverage of a 
measure be drawn up, the Member imposing a safe guard measure must ensure that products from 
origins that fall within the provision in Article 9. 1 are excluded.  There is a degree of flexibility 
regarding the way in which each Me mber may comply with Article 9.1.  Irrespective of the way in 
which each Member complies with this provision, ho wever, the Member concerned must show that it 
has made the efforts it can to exclude all those Memb ers covered by the provision in Article 9.1 of the 
Agreement on Safeguards. 
7.397  There follows an analysis of whether the Do minican Republic complied with its obligation 
under Article 9.1 of the Agreement on Safeguards. 
Whether the Dominican Republic complied with the obligation in Article 9.1 of the Agreement on 
Safeguards 
 
7.398  Neither the preliminary nor the definitive Reso lution analyse the situation of Thailand.  
Nevertheless, the information furnished by the DE I, particularly the table entitled "Exclusion of 
developing countries" in the Preliminary and Final Technical Reports488, shows that imports of the 
product concerned from Thailand amounted to 0.32 per cent of the Dominican Republic's total 
imports over the period investigated.  If the impo rts from Thailand are added to those from the 
four Members excluded, imports of the product co ncerned during the investigation period would not 
collectively have exceeded 9 per cent as in tota l they represented 1.53 per cent of the imports 
investigated.  Thailand was not, however, specifica lly excluded from the measure's coverage, even 
though it is a developing country Member that sa tisfies the requirement in Article 9.1 of the 
Agreement on Safeguards. 
7.399  In response to a question from the Panel, the Do minican Republic indicated that it sufficed to 
show that in fact imports from Thailand had b een excluded from application of the measure without 
there being any obligation to exclude them explicitly  and that, as there had been no imports from this 
origin in 2009, it did not find it necessary expressly to  exclude Thailand.  Las tly, it stated that if 
Thailand started to export to the Dominican Republic  and requested exemption from the measure, the 
Dominican Republic would be prepared to grant it.489 
7.400  As already mentioned, there is  a certain flexibility in the manner of complying with the 
obligations under Article 9.1 of the Agreem ent on Safeguards.  In the present case, the 
Dominican Republic explicitly excluded imports from four origins, some of them in a similar position 
                                                      
487 Ibid., paragraph 127. 
488 Preliminary Technical Report, Exhibit CEGH-7, page 96;  Final Technical Report, Exhibit 
CEGH-10, page 102. 
489 Dominican Republic, replies to Panel questions Nos. 158 and 199. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 120   
  to Thailand (as regards imports during the period investigated).  Unlike these countries, however, 
Thailand was not specifically mentioned in the list of countries excluded.  It should also be noted that 
Colombia, Indonesia and Panama did not export to the Dominican Republic either in 2009 and yet 
these three Members were included by the competen t authority in the list of countries excluded. 
7.401  Bearing this in mind, the Panel does not consid er that the Dominican Republic has provided a 
convincing explanation of the reason why Thailand  was treated differently and was not included 
specifically in the list of countries excluded from th e measure's coverage.  It is not enough for the 
Dominican Republic to state without any further substantiation that imports from Thailand were 
de facto  excluded from the measure's application becau se there are no grounds for the different 
treatment given to imports from Thailand and no pr oof that if Thailand had decided to export the 
product investigated to the Dominican Republic, it w ould have been exempt from application of the 
measures. 
7.402  The Panel therefore concludes that the co mplainants have made the case that the 
Dominican Republic did not take all reasonable measures available to it to exclude from application 
of the measures contested all developing countries which export less than the de minimis levels 
indicated in Article 9.1 of the Agreement on Safegua rds and, in this particular instance, Thailand.  
Consequently, as far as the provisional and defi nitive measures are concerned, the Dominican 
Republic acted inconsistently with  its obligations under Article 9. 1 of the Agreement on Safeguards. 
2. Whether the Dominican Republic acted inconsistently with obligations under the 
covered agreements by failing to comply  with certain procedural obligations 
7.403  The complainants put forward jointly the fo llowing three claims regarding procedural 
obligations:  (i) the Dominican Republic imposed th e definitive measure without timely notification in 
the terms of Article XIX:2 of the GATT 1994;  ( ii) the Dominican Republic did not afford Members 
having a substantial interest in th e products under investigation an oppor tunity for consultations in the 
terms provided in Articles XIX:2 of the GATT 1994 and 12.3 of the Agreement on Safeguards;  and 
(iii) the Dominican Republic did not give the comp lainants the opportunity to obtain an adequate 
means of trade compensation in accordance with Ar ticle 8.1 of the Agreement on Safeguards and 
Article XIX:2 of the GATT 1994.
490 
(a) Main arguments of the parties 
(i) Complainants 
7.404  First of all, the complainants contend th at the Dominican Republic did not notify the 
safeguard measure prior to its adoption , thereby acting inconsistently with Article XIX:2 of the 
GATT 1994.  In their view, the Dominican Republic 's interpretation that Article XIX:2 of the 
GATT 1994 only requires that the notification should be made prior to application of the measure, on 
the basis of the English and French versions of this text, is incorrect.  The complainants state that the 
text of the GATT is equally authentic in the three la nguages.  They also consider that the language in 
the last part of the first sentence of Article XIX:2 of the GATT 1994 ("the proposed action") confirms that, pursuant to this provision, a Member impos ing a safeguard measure must first notify the 
proposed measure (before it is adopted) and th en hold consultations with Members having a 
                                                      
490 Complainants, first written submission, paragraph 451.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 121 
  
  substantial interest.  The complainants also indi cate that Article 12.1 of the Agreement on Safeguards 
is irrelevant for the purposes of their complaint.
491 
7.405  Secondly, the complainants argue that, by faili ng to notify the safeguard measure prior to its 
adoption, the Dominican Republic did not give expo rting Members affected the opportunity to hold 
the consultations provided in Articles XIX:2 of the GATT 1994 and 12.3 of the Agreement on 
Safeguards and, therefore, also failed to mainta in a level of concessions and other obligations 
substantially equivalent to the level it was obliged to maintain with other exporting Members affected 
by the safeguard measure, thereby acting inconsis tently with Article 8.1 of the Agreement on 
Safeguards.492  The complainants also point out that the various acts by which the 
Dominican Republic seeks to prove that it held cons ultations with interested Members were acts 
carried out during the national safeguards investig ation and are not related to the consultations 
referred to in Articles XIX:2 of the GATT 199 4 and 12.3 of the Agreement on Safeguards.493 
(ii) Dominican Republic 
7.406  Regarding the claim concerning the alleged l ack of notification, the Dominican Republic 
points out that the English and French texts of Article XIX:2 of the GATT 1994 require that 
notification has to be made before application of the measure and that Article XIX:2 of the GATT has 
to be interpreted in the light of the wording of  these versions.  In its view, Article 12.1 of the 
Agreement on Safeguards and the inte rpretation of this provision by th e Panel and the Appellate Body 
in US – Wheat Gluten are relevant when interpreting Article  XIX:2 of the GATT 1994 and support its 
interpretation that the notification required by th is provision must be made after adoption and not 
before.494 
7.407  As to the claim concerning the obligation unde r Article 12.3 of the Agreement on Safeguards, 
the Dominican Republic states that the complainan ts had opportunities to examine the measure's 
probable effects before it came into force and that consultations were held with the complainants on 
12 May 2010 at the time of the public hearing in the national investigation.495 
7.408  With regard to the claim concerning the allege d failure to comply with Article 8.1 of the 
Agreement on Safeguards, the Dominican Republic r ecalls that it lodged a preliminary objection 
asserting that this did not form part of the Panel's terms of reference.  Nevertheless, even if the Panel considers that this claim is covered by its terms of  reference, the Dominican Republic is of the view 
that it did not act inconsistently with its oblig ations under this provision because it did not suspend 
                                                      
491 Complainants, first written submission, paragraphs 458 and 460;  second written submission, 
paragraph 244;  opening oral statement at the first meeting of the Panel, paragraph 122;  replies to Panel 
questions Nos. 161-163. 
492 Complainants, first written submission, paragraphs 458-459;  second written submission, 
paragraph 245. 
493 Complainants, opening statement at the first mee ting of the Panel, paragraph 124;  second written 
submission, paragraphs 248-250. 
494 Dominican Republic, first written submission, para graphs 486, 487 and 490-495;  replies to Panel 
questions Nos. 163 and 165. 
495 Dominican Republic, first written submission, paragraphs 500-501;  replies to Panel questions 
Nos. 166 and 167. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 122   
  any concession (as the provisional and definitive m easures did not exceed the bound tariff of 40 per 
cent ad valorem ) and so was not in the situation covered by Article 8.1.
496 
(b) Main arguments of third parties 
(i) Colombia 
7.409  Colombia points out that Article XIX:2 of the GATT 1994 determines that the notification 
must be made before a party adopts measures under Article XIX:1 of the GATT.  Regarding the 
opportunity to hold consultations, Co lombia considers that the Panel will have to determine whether 
the Dominican Republic gave the complainants an adequate opportunity for these in advance and with 
a view to reaching an agreement on a means of trad e compensation, in the terms of Articles 12.3 and 
8.1 of the Agreement on Safeguards.497 
(ii) United States 
7.410  With regard to the claim concerning notification, the United States considers that the last part 
of the first sentence of Article XIX:2 of the GATT 1994498 has to be addressed within the context of 
the first part of this sentence.  Furthermore, it indicates that there has to be compliance with the 
requirement to hold consultations , as provided in Articles XIX:2 of the GATT 1994 and 12.3 of the 
Agreement on Safeguards, before app lication of the safeguard measure.499 
(iii) Panama 
7.411  Panama considers that the Dominican Republic fa iled to comply with the obligation to give 
notice sufficiently in advance because it did not provi de Members having a substantial interest with an 
opportunity to hold prior consultations, in the terms of Article 12.3 of the Agreement on Safeguards.  
In its view, the Panel should rule that the Domi nican Republic did not give the Members concerned 
the possibility of obtaining adequate trade compensation.500 
(iv) European Union 
7.412  The European Union states that the first sentence of Article XIX:2 of the GATT 1994 
contains two separate but related oblig ations.  The first part of this Article lays down the obligation to 
give notice in writing;  the second the obligation to give exporting Members having an interest the 
opportunity to hold consultations with the Member wishing to apply the measure.  Both obligations relate to an action that has not been taken.  The European Union also consid ers that, in the event of 
                                                      
496 Dominican Republic, first written submission, paragraphs 550-552.  See also preliminary 
Section 4.1 of the submission. 
497 Colombia, third party written submission, paragraphs 79-80. 
498 In the English text, the first sentence of Article XIX:2 of the GATT contains the text corresponding 
to the first two sentences in the Spanish and French texts;  as a result, when the United States refers to the last 
part of the first sentence of Article XIX:2 of the GATT it has to be understood that it is referring to the last part 
of the second sentence in th e Spanish and French texts. 
499 United States, replies to Panel questions Nos. 21 and 22. 
500 Panama, third party written submission, paragr aphs 13, 14 and 17;  third party statement, 
paragraph 5.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 123 
  
  any conflict between Article XIX:2 of the GATT 1994 and Article 12.3 of the Agreement on 
Safeguards, the latter provision should prevail.
501 
(c) Assessment of the Panel 
7.413  The Panel takes note of the following facts, which both parties accept:  (i) on 5 October 2010, 
the Commission adopted the definitiv e safeguard measure;  (ii) on 8 October (three days later), the 
Dominican Republic notified WTO Members of the meas ure;  (iii) on 18 October, the notification was 
circulated to Members of the WTO;  and (iv) on the same day, 18 October, the measure came into 
force. 
7.414  The Panel is called upon to examine the following questions:  (i) whether the 
Dominican Republic complied with its notifica tion obligation under the applicable provisions 
(Articles XIX:2 of the GATT 1994 and 12 of the Agreement on Safeguards);  (ii) whether the Dominican Republic afforded Members having a substan tial interest in the products investigated the 
opportunity to hold consultations in the terms of  Articles XIX:2 of the GATT 1994 and 12.3 of the 
Agreement on Safeguards;  and (iii) whether the Dominican Republic gave the complainants the 
opportunity to obtain adequate means of trade co mpensation in the terms of Articles 8.1 of the 
Agreement on Safeguards and XIX:2 of the GATT 1994. 
(i) Notification of the definitive measure un der Article XIX:2 of the GATT 1994 
Introductory remarks 
 
7.415  With regard to the first question, concerning the notification obligation in Article XIX:2 of 
the GATT 1994, the complainants have stated that  Article 12.1 of the Agreement on Safeguards does 
not apply for the purposes of their claim.  A ccordingly, the complain ants contend that the 
Dominican Republic did not notify the safeguard me asure before its adoption, in the terms of 
Article XIX:2 of the GATT 1994.  The Dominican Republic, for its part, states that both provisions 
are relevant when examining this complaint and that there are differences in the text of Article XIX:2 
of the GATT 1994 in the three official languages, the implication being that the notice must be given before the measure is applied (and not  before it is adopted).  It also points out that Article 12.1(c) of 
the Agreement on Safeguards, as well as previous d ecisions by Panels and the Appellate Body that 
have examined this provision, apply to the analys is of the obligation under Article XIX:2 of the 
GATT 1994. 
7.416  Until now, the obligation to notify a safeguard measure under Article XIX:2 of the 
GATT 1994 has not been interpreted by WTO Panels or  by the Appellate Body.  This Panel is called 
upon to interpret the scope of this provision in the light of the three official versions of the text. 
7.417  As a preliminary remark, the Panel observes th at the obligation on Members to notify their 
safeguard measures is based both on Article XIX:2 of the GATT 1994 and Article 12 of the 
Agreement on Safeguards.  A proper assessment of  these obligations, when addressing the present 
claim, should therefore take into account both provisions. 
                                                      
501 European Union, replies to Panel questions Nos. 21 and 22. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 124   
  Principle of a single whole  
 
7.418  We have already noted above that Article  XIX of the GATT 1994 and the Agreement on 
Safeguards constitute an inseparable set of righ ts and disciplines that have to be addressed 
simultaneously.502 
7.419  In view of the foregoing, the Panel will have to interpret the notification obligation under 
Article XIX:2 of the GATT 1994 in such a way that it gives meaning to all the terms, not only those 
in the GATT but also those in the Agreement on Safeguards.  The Panel therefore notes that the 
Agreement on Safeguards contains a special provi sion (Article 12, entitled "Notification and 
Consultation") which includes several notification ob ligations.  This provision in the Agreement on 
Safeguards is linked to the obligations to no tify and give Members the opportunity to hold 
consultations provided by Article XIX of the GATT 1994. 
7.420  Accordingly, the question before the Panel is  to determine whether the Dominican Republic 
complied with the notification requirement under Ar ticle XIX:2 of the GATT 1994, examined in 
conjunction with Article 12 of the Agreement on Safeguards. 
7.421  Article 3.2 of the DSU requires panels to clarify the prevailing provisions of the covered 
agreements "in accordance with customary rules of in terpretation of public inte rnational law".  These 
rules include the principles set out in Artic les 31, 32 and 33 of the Vienna Convention.503  According 
to Article 31 of the Vienna Convention, a treaty sha ll be interpreted in good faith in accordance with 
the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
504 
7.422  When examining the different official versions of the text of Article XIX:2 of the 
GATT 1994, the parties have a different interpreta tion of the moment at which the notification 
obligation in this provision becomes effective.  Acco rding to the customary rules of interpretation of 
treaties in Article 33 of the Vienna Convention, in case of discrepancy between various official texts it 
is necessary to seek the meaning that gives effect, simultaneously, to all the terms of the treaty, as 
they are used in each authentic language.505  The WTO's legal texts are e qually authentic in English, 
French and Spanish.506 
                                                      
502 See paragraph 7.66 of the present Report. 
503 Appellate Body Reports, US – Gasoline, pages 16-18;  India – Patents (US) , paragraph 45;  US – 
Shrimp , paragraph 114;  Chile – Price Band System , paragraph 271.  See also the Panel Report, China – Raw 
Materials , paragraph 7.246. 
504 Appellate Body Report, US – Gasoline , p. 17. 
505 See also Appellate Body Reports, Chile – Price Band System , paragraph 271;   EC – Bed Linen 
(paragraph 5 of Article 21 – India), footnote 153 to paragraph 123;  US – Softwood Lumber IV, footnote 50 to 
paragraph 59;  EC – Tariff Preferences, paragraph 147;  and  US – Upland Cotton, footnote 510 to paragraph 
424.  For the theory, see also B.  Condon, El Derecho de la Organización Mundial de Comercio:  Tratados, 
Jurisprudencia y Práctica  (Spanish only) (Cameron May, 2007), p. 53. 
506 Article XVI of the Marrakesh Agreement Es tablishing the WTO and Explanatory Note of 
paragraph 2(c)(i) of the GATT 1994.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 125 
  
  Articles XIX:2 of the GATT 1994 and 12 of the Agreement on Safeguards 
 
7.423  The Spanish text of Article XIX:2 of the GATT 1994 provides the following: 
"Medidas de urgencia sobre la importación 
de productos determinados 
 
2. Antes de que una parte contratante adopte medidas de conformidad con las 
disposiciones del párrafo 1 de este artícu lo, lo notificará por escrito a las PARTES 
CONTRATANTES con la mayor anticipación posible .  Les facilitará además, así 
como a las partes contratantes que tengan un interés substancial como exportadoras 
del producto de que se trate, la oportunida d de examinar con ella las medidas que se 
proponga adopter …" (italics added). 
 
7.424  The English text of Article XIX:2 of the GATT 1994 reads as follows: 
"Emergency Action on Imports of Particular Products 
 
2. Before any contracting party shall ta ke action pursuant to the provisions of 
paragraph 1 of this Article, it shall gi ve notice in writing to the CONTRACTING 
PARTIES as far in advance as may be practicable  and shall afford the 
CONTRACTING PARTIES and those contr acting parties having a substantial 
interest as exporters of the product concerned an opportunity to consult with it in respect of the proposed action …" (italics added). 
 
7.425  The French text of Article XIX:2 of the GATT 1994 reads as follows: 
"Mesures d'urgence concernant l'impor tation de produits particuliers 
 
2.  Avant qu'une partie contractante ne p renne des mesures en conformité des 
dispositions du paragraphe premier du présent article, elle en avisera les PARTIES 
CONTRACTANTES par écrit et le plus longtemps possible à l'avance .  Elle fournira à 
celles-ci, ainsi qu'aux parties contractant es ayant un intérêt substantiel en tant 
qu'exportatrices du produit en question, l'oc casion d'examiner avec elle les mesures 
qu'elle se propose de pren dre …" (italics added). 
 7.426  The first sentence of Article XIX:2 of the GATT 1994 determines an obligation to notify 
before a situation arises.  This situation is describ ed in the Spanish text of the General Agreement by 
the words " adopte medidas ";  in the English by the words "take acti on";  and in the French text by the 
words " prenne des mesures ".  The words " adopte medidas" in Spanish
507 suggest that the moment at 
which the obligation arises is the adoption of a measure.  The words " prenne des mesures " in French 
and "take action" in English, however, are not clear regarding the moment at which the obligation to 
                                                      
507 The word " adoptar " in Spanish means " tomar resoluciones o acuerdos con previo examen o 
deliberación " (take decisions or make ag reements after prior consideration or deliberation).  Diccionario de la 
Lengua Española , 22nd Ed. (Real Academia Española, 2001), page 33.  The word " medida " in Spanish means 
"disposición, prevención " (provision, arrangement, precaution).  Diccionario de la Lengua Española , 22nd Ed. 
(Real Academia Española, 2001), page 1001;  R.  Villa-Real Molina and M.  Á. del Arco Torres, Diccionario de 
Términos Jurídicos  (Editorial Comares, 1999), page 311. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 126   
  notify is triggered.  The words "take action"
508 translate into Spanish in one of its meanings as 
"emprender acciones judiciales, actuar " (take legal action, act)509, whereas the words " prenne des 
mesures " could be translated as " tomar una medida o decisión judicial " (take a measure or legal 
decision).510  From neither the French text nor the English text, however, can it be clearly determined 
whether the moment at which the obligation is triggered is the moment of the adoption or the 
application of the measure. 
7.427  Article 12 of the Agreement on Safeguards, for its part, determines the following: 
"Notification and Consultation  
1. A Member shall immediately notify the Committee on Safeguards upon: (a) Initiating an investigatory process relati ng 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. 
2. In making the notifications referred to in paragraphs 1(b) and 1(c), the 
Member proposing to apply or extend a safeguard measure shall provide the 
Committee on Safeguards with all pertinent information, which shall include evidence of serious injury or threat th ereof 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.  In the 
case of an extension of a measure, evidence that the industry concerned is adjusting 
shall also be provided.  The Council for Trade in Goods or the Committee on 
Safeguards may request such additional in formation as they may consider necessary 
from the Member proposing to apply or extend the measure. 
… 
                                                      
508 In English the word "take" means "seize, grasp, catch".  Shorter Oxford English Dictionary , 6th Ed. 
(Oxford University Press, 2007), vol. 2, page 3166.  "Take" translates into Spanish as " tomar… coger ", Collins 
Spanish-English English-Spanish Dictionary , 14th Ed. (1985), page 514, or " tomar, llevar ", E.  Alcaraz Varó 
and B.  Hughes, Diccionario de Términos Jurídicos  (Editorial Ariel, 2002), page 15).  In Spanish the word 
"action" means " actuación;  trámites (jurídicos), medidas (judiciales), resolución, diligencias ", E.  Alcaraz Varó 
and B.  Hughes, Diccionario de Términos Jurídicos  (Editorial Ariel, 2002), page 15. 
509 Alcaraz Varó, Enrique and Brian Hughes, Diccionario de Términos Jurídicos , Ed.  Ariel, 2002, 
page 15. 
510 In French the word " prendre " means " mettre avec soi ou faire sien " (take to one's self or make one's 
own), Le Nouveau Petit Robert  (Dictionnaires Le Robert, 2000), page 1978.  The word " prendre " translates into 
Spanish as " tomar, coger ", whereas the words " Prendre des mesures " can be translated as " tomar medidas ", 
Larousse Grand Dictionnaire, Français Espagnol , 2nd Ed. (Larousse, 1998), pages 430 and 537-538.  The word 
"mesure " in French means " décision (judiciaire ou administrative) " (legal or admini strative decision), 
Vocabulaire Juridique Association Henri Capitant  8th Ed. (Presses Universitaires de France, 2000), page 550.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 127 
  
  4. A Member shall make a notificati on to the Committee on Safeguards before 
taking a provisional safeguard measure referre d to in Article 6.  Consultations shall 
be initiated immediately after the measure is taken ...". 
 7.428  Article 12.1 of the Agreement on Safeguards indicates three moments at which Members 
must notify, each of which corresponds to the moment when one of the events specified in each of its 
paragraphs occurs.  The Article's chapeau pr ovides that notifications must be made " immediately 
upon"  the occurrence of one of the triggering events (italics added).
511  Article 12.4 of the Agreement 
imposes a fourth obligation to notify, which has to be observed before a provisional safeguard 
measure is adopted.  The Panel is of the view  that Article 12 of the Agreement on Safeguards 
identifies four obligations to notify the Committee on Safeguards.512  Article XIX:2 of the 
GATT 1994, on the other hand, only determines one oblig ation to notify.  Despite this, the Panel has 
already indicated that Articles XIX:2 of the GATT 1994 and 12 of the Agreement on Safeguards have 
to be interpreted together and giving meaning to the terms in both provisions. 
7.429  In order to define the scope of the notifica tion obligation in Article XIX:2 of the GATT 1994 
it is appropriate to begin by considering whethe r such an obligation corresponds to any of the 
four notification obligations mentioned in Article 12 of the Agreement on Safeguards.  The Panel will commence by analysing the relevance of interpreti ng Article XIX:2 of the GATT in the light of 
Article 12.1(c) of the Agreement on Safeguard s, as suggested by the Dominican Republic. 
7.430  Both Article XIX:2 of the GATT 1994 and Artic le 12.1(c) of the Agreement on Safeguards 
determine obligations to notify safeguard measures.
513  As already indicated, Article XIX:2 of the 
GATT 1994 provides that "Before any contracting party shall take action514 pursuant to the provisions 
of paragraph 1 of this Article, it shall give notice in writing to the CONTRACTING PARTIES as far 
in advance as may be practicable" (italics added).  The Spanish text of Article 12.1(c) of the 
Agreement on Safeguards, on the other hand, provid es that "Todo Miembro hará inmediatamente una 
notificación … cuando adopte la decisión de aplicar  … una medida de salvaguard ia." (italics added) .  
The English text reads "A Me mber shall immediat ely notify the Committee on Safeguards upon … 
taking a decision to apply or extend a safeguard measure ." (italics added) and the French provides 
that "Un Membre notifiera immédiatement au Comité des sauvegardes la decision d'appliquer ou de 
proroger une mesure de sauvegarde. " (italics added). 
7.431  Both provisions (Article XIX:2 of the GATT 1994 and Article 12.1(c) of the Agreement on 
Safeguards) refer to the obligation to notify a defi nitive measure.  The words "shall take action" in 
                                                      
511 See Appellate Body Report, US – Wheat Gluten , paragraph 102. 
512 These obligations, in chronological order, are triggered at the following moments:  (i) when 
initiating an investigation;  (ii) when adopting a provisi onal safeguard measure under Article 6 of the Agreement 
on Safeguards;  (iii) when finding that there is serious inju ry or threat of serious injury caused by the increase in 
imports;  and (iv) when taking the decision to apply or extend a safeguard measure. 
513 Article XIX:2 of the GATT refers to the ob ligation to notify the CONTRACTING PARTIES.  
According to paragraph 2(b) of the GATT 1994, the functions assigned to the CONTRACTING PARTIES in various provisions of the GATT (including Article XIX) , will be assigned to the Ministerial Conference.  The 
WTO General Council, in the document entitled "Avoida nce of procedural and institutional duplication", 
adopted on 31 January 1995 (WT/L/29), indicated that " If a measure is subject to a notification obligation both 
under the WTO Agreement and under the GATT 1947 …, the notification of such a measure to a WTO body 
shall, unless otherwise indicated in the notification, be deemed to be also a notification of that measure under 
the GATT 1947."  Article 12.1 of the Agreement on Safeguards determines the obligation to notify the 
Committee on Safeguards. 
514 Bearing in mind the differences in this term in the various official language versions of the text. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 128   
  Article XIX:2 of the GATT are attenuated by the words " de conformidad con la s disposiciones del 
párrafo 1 de este artículo " in the Spanish text (in English "pursu ant to the provisions of paragraph 1 
of this Article";  in French " en conformité des dispositions du paragraphe premier du présent 
article ").  Consequently, the measure referred to in Article XIX:2 of the GATT 1994 is the measure 
regulated by Article XIX:1.  Reading Article XIX:1 of the GATT 1994 suggests that the measure 
referred to is the definitive measure .  In the case of Article 12.1(c) of the Agreement on Safeguards, 
the measure to be notified is also the definitiv e measure as the obligation is triggered once the 
decision to apply or extend the measure has been taken.
515 
7.432  Furthermore, as the notification under Ar ticle XIX:2 of the GATT 1994 concerns the 
definitive measure, this obligation could not corres pond to any of the other notification obligations 
mentioned in Article 12 of the Agreement on Safeguards.516  Only the notifications referred to in 
Articles XIX:2 of the GATT 1994 and 12.1(c) of the Agreement on Safeguards concern a definitive 
measure. 
7.433  Accordingly, as the complainants indicate, Ar ticle 12.1(c) of the Agreement on Safeguards 
determines that the obligation is triggered upon taking a decision to apply the measure (in Spanish the 
word is aplicar and in French d'appliquer ).  The words to apply are similar in the three official 
language versions of this provisi on.  Nevertheless, as mentioned,  Article XIX:2 of the GATT 1994, 
read simultaneously in the three official language  versions, does not clearly determine at which 
moment the obligation to notify is triggered.  Conseq uently, the Panel considers that the clarity of the 
text of Article 12.1(c) of the Ag reement on Safeguards in the three o fficial language versions provides 
guidance and throws light on the time at which th e obligation in GATT Article XIX:2 has to be 
observed.  Article XIX:2 of the GATT 1994, therefore,  read in conjunction with Article 12.1(c) of the 
Agreement on Safeguards, determines the obligation to notify a definitive measure before it is applied 
but not necessarily before it is adopted. 
7.434  The Panel will now go on to examine whether the complainants succeeded in making the case 
that the Dominican Republic acted inconsiste ntly with the notification obligation under 
Articles XIX:2 of the GATT 1994 and 12 of the Ag reement on Safeguards by notifying the definitive 
measure on 8 October 2010. 
Analysis in the present case 
 
7.435  As already mentioned, the definitive safeguard  measure was adopted on 5 October 2010 and 
was notified on 8 October517, three days after the measure had b een adopted.  The definitive safeguard 
measure came into effect on 18 October 2010518, ten days after the Committee on Safeguards had 
received the notification from the Dominican Republic. 
                                                      
515 Appellate Body Report, US – Wheat Gluten, paragraph 120. 
516 Article 12.1(a) of the Agreement on Safeguards de termines the obligation to notify the initiation of 
an investigation and Article 12.4 determines the obliga tion to notify before adopting a provisional measure.  
Article 12.1(b), on the other hand, determines the obligatio n to notify a finding of the existence of serious injury 
or threat of serious injury.  Depe nding on the mechanism us ed by each Member for the imposition of safeguard 
measures, the time of the event referred to in this last notification (finding of the existence of serious injury or 
threat of serious injury) may or may not coincide with the moment at which the definitive measure is adopted. 
517 Notification, document G/SG/N/7/DOM/1/Suppl.1 and G/SG/N/8/DOM/1/Suppl.1 
(13 October 2010), Exhibit CEGH-19.   This document was replaced by  document G/SG/N/8/DOM/1/Suppl.2, 
G/SG/N/10/DOM/1 and G/SG/N/11/DOM/1/Suppl.1 (18 October 2010), Exhibit CEGH-21. 
518 Definitive Resolution, Exhibit CEGH-9.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 129 
  
  7.436  The notification of 8 October 2010 is based on Article 12.1(b) and 12.1(c) of the Agreement 
on Safeguards.  In this notification, the Domi nican Republic provided in formation on its findings 
concerning serious injury and an increase in impor ts, the product concerned, the measure envisaged, 
the measure's planned date of introduction and dura tion, the timetable for its liberalization and the 
main exporters of the product in question to the Dominican Republic.
519 
7.437  In US – Wheat Gluten, in relation to notifications under Article 12.1 of the Agreement on 
Safeguards, the Appellate Body indicated that th e degree of urgency or immediacy required depends 
on a case-by-case assessment, account being taken of the administrative difficulties involved in 
preparing the notification, and also of the character  of the information supplied.  Nevertheless, the 
amount of time taken to prepare the notification mu st be kept to a minimum, as the underlying 
obligation is to notify immediately .520  In this particular case, the Appellate Body concluded that 
notification within five days (following adoption of the measure) was consiste nt with the requirement 
of immediacy contained in Article 12. 1(c) of the Agreement on Safeguards.521 
7.438  Taking into account the foregoing, the Panel c onsiders that, as it has been shown that the 
Dominican Republic notified the definitive me asure to the WTO Committee on Safeguards on 
8 October 2010, three days after its adoption (5 Oc tober 2010), the complainants have not made the 
case that the Dominican Republic acted inconsistently  with its obligations under Articles XIX:2 of the 
GATT 1994 and 12.1(c) of the Agreement on Safeguards. 
(ii) Requirement to hold consultations and provid e a means of trade compensation before 
imposing a definitive measure 
7.439  The complainants put forward two other cl aims regarding the requirement to hold 
consultations and to provide a means of trade co mpensation before imposing a definitive measure, 
pursuant to Articles XIX:2 of the GATT 1994 and 12.3 and 8.1 of the Agreement on Safeguards, as 
consequential claims.522  The way in which the complainants put  forward these claims means that they 
are linked to the Panel's findings on the claim con cerning notification pursuant to Articles XIX:2 of 
the GATT 1994 and 12.1(c) of the Agreement on Safeguards. 
7.440  Accordingly, having determined that the comp lainants have not made the case that the 
Dominican Republic failed to comply with the notif ication obligation pursuant to Articles XIX:2 of 
the GATT 1994 and 12.1(c) of the Agreement on Safe guards, the Panel rejects the complainants' 
claim that the Dominican Republic did not give them an opportunity to hold consultations in the terms 
provided in Articles XIX:2 of the GATT 1994 and 12.3 of the Agreement on Safeguards. 
7.441  Moreover, taking into account the finding concer ning the obligation prescribed in Article 12.3 
of the Agreement on Safeguards and in the light of the explicit link between the obligations in 
Articles 12.3 and 8.1 of the Agreement on Safeguards523, the Panel considers inappropriate the 
complainants' claim (on the assumption that this claim was duly brought before it for consideration524) 
                                                      
519 Exhibits CEGH-19 and CEGH-21. 
520 Appellate Body Report, US – Wheat Gluten, paragraphs 105-106. 
521 Appellate Body Report, US – Wheat Gluten , paragraph 129 (italics added). 
522 Complainants, first written submission, paragraphs 456-458;  opening oral statement at the 
first meeting of the Panel, paragraph 126;  opening oral statement at the second meeting of the Panel, 
paragraph 74. 
523 See the Appellate Body Reports, US – Wheat Gluten, paragraph 146;  and US – Line Pipe, 
paragraph 119. 
524 See paragraphs 7.98-7.110 of the present Report. WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 130   
  that the Dominican Republic did not give the comp lainants an opportunity to obtain an adequate 
means of trade compensation in the terms of Articles 8.1 of the Agreement on Safeguards and XIX:2 
of the GATT 1994. 
F. S
PECIAL AND DIFFERENTIAL TREATMENT  
7.442  According to Article 12.11 of the DSU: 
"Where one or more of the parties is a developing country Member, the panel's report 
shall explicitly indicate the form in wh ich account has been taken of relevant 
provisions on differential and more-favour able treatment for developing country 
Members that form part of the covered ag reements which have been raised by the 
developing country Member in the cour se of the dispute settlement procedures." 
 7.443  Article 12.10 of the DSU also provides the following: 
"… in examining a complaint against a de veloping country Member, the panel shall 
accord sufficient time for the developing c ountry Member to prepare and present its 
argumentation". 
 7.444  In the present proceedings, and except for the cl aim concerning Article 9.1 of the Agreement 
on Safeguards on which the Panel has already ruled, none  of the parties, neither  the complainants nor 
the defendant, has referred to any provision in  the WTO Agreements on special and differential 
treatment for developing countries.  In any event, the Panel has taken into account the status of the 
parties as developing country Members, particularly when preparing the timetable for the proceedings after having heard their respective views.  Ther e are no other provisions on differential and more 
favourable treatment for developing country Me mbers that should be the subject of special 
consideration by the Panel. 
7.445  The Panel also points out that the Dominican Repub lic has stated that this dispute could affect 
the "inherent and essential flexibility of the WT O's tariff concessions mechanism", according to 
which Members are free to raise tariffs up to  a level that does not exceed the bound rate.
525  In this 
connection the Panel has noted that the findings in this Report do not affect the flexibility given to 
WTO Members under the provisions in the GATT 1994 freely to modify their tariffs by adopting new 
ordinary customs duties that remain within the le vel bound in the schedule of concessions.  Neither do 
they affect the right of WTO Members to impose emergency measures on imports of specific products 
and, as a result, to suspend, in whole or in pa rt, obligations under the GATT 1994 with respect to 
those products, including the possibility of wit hdrawing or modifying concessions in a manner 
consistent with Article XIX of the GA TT 1994 and the Agreement on Safeguards. 
VIII.  CONCLUSIONS AND RECOMMENDATIONS 
8.1 For the reasons set out above, th e Panel concludes the following: 
(a) The Panel rejects the request of the Do minican Republic that it find that the 
impugned measures are not covered by Article XIX of the GATT 1994 or the 
Agreement on Safeguards and that, therefore, the dispute brought by the complainants, at least as far as these rules ar e concerned, is devoid of purpose and, on 
                                                      
525 Dominican Republic, closing statement at the s econd meeting of the Panel, paragraphs 5-7.  WT/DS415/R, 
 WT/DS416/R,  WT/DS417/R, 
 WT/DS418/R 
 Page 131 
  
  the contrary, concludes that the provisions of Article XIX of the GATT 1994 and the 
Agreement on Safeguards are applicable to th e examination of the claims put forward 
in this dispute; 
(b) the Panel does not consider it necessary to rule on the request of the 
Dominican Republic that the Panel decline jurisdiction in the present dispute on the 
grounds that the complainants are contesti ng the Dominican Republic's application of 
a tariff higher that the preferential tariff provided for in regional free trade 
agreements, in view of the subsequent statements by the parties; 
(c) the Dominican Republic acted inconsistently with its obligations under 
Article XIX:1(a) of the GATT 1994 and Articles 3.1, last sentence, 4.2(c) and 11.1(a) 
of the Agreement on Safeguards with regard  to the findings, in the preliminary and 
final determinations, on the unforeseen developments and the effect of the 
GATT obligations that were claimed to be the cause of the alleged increase in imports 
that caused serious injury; 
(d) the Dominican Republic acted inconsistently  with its obligations under Articles 2.1 
and 4.1(c) of the Agreement on Safeguard s and Article XIX:1(a) of the GATT 1994 
with regard to the findings, in the prel iminary and final determinations, on the 
definition of the domestic industry; 
(e) the complainants have not made the case that the Dominican Republic acted 
inconsistently with its obligations under Ar ticles 2.1, 3.1, last sentence, 4.2(a) and 
4.2(c) of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 with 
regard to the findings, in the preliminary and final determinations, on the increase in imports; 
(f) the Dominican Republic acted inconsistently  with its obligations under Articles 2.1, 
3.1, last sentence, 4.1(a), 4.2(a) and 4.2(c) of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 with regard to the findings, in the preliminary and final determinations, on th e existence of serious injury; 
(g) the complainants have not made the case that the Dominican Republic acted 
inconsistently with its obliga tions under Articles 2.1, 2.2, 3.1, 4.2, 6 and 9.1 of the 
Agreement on Safeguards by failing to conduct a new analysis in order to determine 
the increase in imports, injury and the causal link when excluding imports from 
Colombia, Indonesia, Mexico and Panama; 
(h) the Dominican Republic acted inconsistently with its obligations under Article 9.1 of 
the Agreement on Safeguards by failing to ta ke all reasonable measures available to it 
to exclude Thailand from the application of  the provisional and definitive safeguards 
measures;  and 
(i) the complainants have not made the case that the Dominican Republic acted 
inconsistently with its obligations under Articles XIX:2 of the GATT 1994 and 
12.1(c) of the Agreement on Safeguards wh en notifying the definitive measure, or 
that the Dominican Republic failed to give them an opportunity for consultations in 
the terms provided in Articles XIX:2 of the GATT 1994 and 12.3 of the Agreement 
on Safeguards, or that the Dominican Republic  failed to give them an opportunity to WT/DS415/R, 
WT/DS416/R, WT/DS417/R, 
WT/DS418/R 
Page 132   
  obtain an adequate means of trade compensa tion in the terms of Articles 8.1 of the 
Agreement on Safeguards and XIX:2 of the GATT 1994. 
8.2 Pursuant to Article 3.8 of the DSU, in cases of  failure to comply with obligations assumed 
under a covered agreement the measu re is considered prima facie  to constitute a case of nullification 
or impairment of the benefits accruing from that agr eement.  Consequently, we find that, to the extent 
that it acted inconsistently with certain provisions of the GATT 1994 and the Agreement on Safeguards, the Dominican Republic nullified or impa ired benefits accruing to the complainants under 
those Agreements. 
8.3 In accordance with Article 19.1 of the DSU a nd having found that the Dominican Republic 
acted inconsistently with certain provisions of  the GATT 1994 and the Agreement on Safeguards, as 
described above, we recommend that the Dominican Re public bring its measures into conformity with 
its obligations under those Agreements. 
__________