WORLD TRADE  
ORGANIZATION   
G/SG/W/222 
4 April 2012 
 (12-1794) 
Committee on Safeguards Original: Spanish 
  
 
IMPLEMENTATION OF THE SURVEILLANCE FUNCTION 
PROVIDED FOR IN ARTICLE 13.1(B) OF 
THE AGREEMENT ON SAFEGUARDS 
 
Joint proposal submitted by Cuba, Ecuador and Turkey 
 
  The following proposal, dated 3 April 2012, is being circulated at the request of the delegations of Cuba, Ecuador and Turkey.  
_______________ 
 
 
INTRODUCTION 
 
 Under Article 13, entitled "Surveillance" the Agreement on Safeguards sets out a 
non-exhaustive list of functions of the Committee on Safeguards.  In particular, paragraph 1(b) 
provides that the Committee will have the function " to find, upon request of an affected Member, 
whether or not the procedural requirements of th is Agreement have been comp lied with in connection 
with a safeguard measure, and report its fi ndings to the Council for Trade in Goods ". 
 
 In order for requests presented under Article 13.1(b) to be examined in a timely manner and 
to establish the facts properly and make an objective and impartial assessment thereof, it is considered 
essential to establish the procedures under wh ich the Committee will address such requests. 
 
I. SPECIAL FEATURES OF SAFEGUARD MEASURES 
 Under specified circumstances, safeguard m easures are imposed on trade flows that are 
neither dumped nor subsidized.  In this re gard, the Appellate Body emphasized that: 
 
"94. … it is essential to keep in mind that a safeguard action is a "fair" trade remedy.  
The application of a safeguard measure do es not depend upon "unfair" trade actions, 
as is the case with anti-dumping or c ountervailing measures.  Thus, the import 
restrictions that are imposed on product s of exporting Members when a safeguard 
action is taken must be seen, as we have said, as extraordinary" .
1 
 The basic purpose of the Agreement on Safeguards is " to provide an effective safety valve for 
industries suffering or threatened with serious injury caused by increased imports in the wake of trade 
liberalization ".2  Indeed, besides preventing or remedying serious injury, a key goal of safeguard 
measures is to facilitate adjustment of the industry.3 
 
                                                      
1 WT/DS121/AB/R. 
2 Petros Mavroidis et al.  "The Law of the WTO.  Documents, Cases & Analysis", page 628. 
3 WT/DS98/AB/R, paragraph 96. G/SG/W/222 
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  II. TRANSPARENCY AND MULTILATERAL SURVEILLANCE 
 Under the GATT 1947, the application of safe guard measures was governed by the provisions 
contained in Article XIX entitled " Emergency Action on Imports of Particular Products " .   I t  w a s  
asserted that, among other things, the lack of proce dural requirements for investigations as well as the 
inadequacy of notification requirements gave ri se to problems in the discipline of safeguards.
4 
 
 The 1986 Ministerial Declaration, which la unched the Uruguay Round of Trade Negotiations, 
specifically included safeguards as a subject of the negotiations.  The terms of reference established 
for the agreement on the subject included, inter alia , the following specific elements:  " transparency ", 
"notification ", "consultation " and " multilateral surveillance ".5 
 
 It has been reported that, at the start of th e Uruguay Round of Trade Negotiations, in the light 
of perceived inadequacies in the area of transparency, " … most countries supported the establishment 
of a mechanism for multilateral surveillance that wo uld provide for regular monitoring of safeguard 
actions.  Moreover, to make safeguard actions more tr ansparent, most delegations want to see the 
final safeguard agreement contain stricter notification and consultation requirements ."6 
  On 27 June 1989, a draft text was presented by the Chairman
7, based on a synthesis of the 
proposals made by the participants in the negotiations.8  Under Section VIII, " Surveillance and 
dispute settlement ", it proposed, on the one hand, that a safe guards committee be esta blished in order, 
inter alia , to review, at any time, at the request of an interested contracting party, any particular 
measure;  and, to monitor and periodically review the application of safeguard measures.  It further 
proposed that " contracting parties which believe their ri ghts under this agreement are being nullified 
or impaired have recourse to the dispute settle ment provisions of the General Agreement ." 
  This approach was crystalized in subsequent  draft texts;  Articles VIII and IX of the 
Dunkel text
9 fully envisaged provisions contained in  Articles 13 and 14 of the Agreement on 
Safeguards.   The preamble to the Agreement on Safeguards hi ghlights several objectives.  In line with its 
"overall objective " - to improve and strengthen the in ternational trading system based on 
GATT 1994 - it recognizes the need to re-establish multilateral control over safeguards and eliminate 
measures that escape such control. 
 
                                                      
4 MTN.GNG/NG9/W/1, cited by Yong-Shik Lee, "Safeguard Measures in World Trade", 2005. 
5 GATT/MIN.DEC 86-1572, section I.D (6 September 1986), 33S/19, 24.  Other "specific elements" 
mentioned in that document are the following:  "coverage", "objective criteria for action", "temporary nature", "degressivity and structural adjustment", "compensation and retaliation", and "dispute settlement". 
6 T.P. Stewart, "The GATT Uruguay Round:  A negotiating history", 1993. 
7 MTN.GNG/NG9/W/25. 
8 T.P. Stewart, op. cit. 
9 MTN.TNC/W/89.  G/SG/W/222 
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  III. DISPUTE SETTLEMENT 
(a) Article 1(1) of the DSU provides that " the rules and procedures of this Understanding shall 
apply to disputes brought pursuant to the c onsultation and dispute settlement provisions " of the 
covered agreements.  One of the cove red agreements is the Agreement on 
Safeguards (DSU Appendix 1). 
 
 Article 14 of the Agreement on Safeguards provides that " the provisions of Articles XXII and 
XXIII of GATT 1994 as elaborated and applied by  the Dispute Settlement Understanding shall apply 
to consultations and the settlement of  disputes arising under this Agreement ." 
 
(b) According to Article 3.2 of the DSU, it " … serves to preserve the rights and obligations of 
Members under the covered agreements, and to clarify the existing provisions of those 
agreements … ". 
  That provision is then reinfo rced by the exclusive jurisdiction clause contained in Article 23.1 
of the DSU, which states that: 
 
"When Members seeks th e redress of a violation of obligations or other nullification 
or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the cove red agreements, they shall have recourse to, 
and abide by, the rules and procedures of this Understanding." 
 In this connection, the Panel in " United States - Sections 301-310 of the Trade Act of 1974 "
10, 
emphasized that:  
"7.43 Article 23.1 … imposes on all Members to "have recourse to" the multilateral 
process set out in the DSU when they seek the redress of a WTO inconsistency.  
In these circumstances, Members have to have recourse to the DSU dispute 
settlement system to the exclusion of any other system … This, what one could call 
"exclusive dispute settlement resolution cl ause", is an important new element of 
Members' rights and obligations under the DSU …" . 
 
(c) To sum up, the DSU establishes compulsory th ird-party adjudication within the WTO system:  
all disputes between its Members must exclusively be made subject to the dispute settlement 
procedures under the DSU.
11 
 
                                                      
10 WT/DS152/R. 
11 Petros Mavroidis et al. , op. cit., page 882. G/SG/W/222 
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  IV. PROCEDURAL REQUIREMENTS IN RELATION TO A SAFEGUARD MEASURE 
 The Agreement on Safeguards contains no criteri a for distinguishing between substantive and 
procedural requirements.   However, taking into account general definitions of " adjective law " and " substantive law "
12, 
as well as the views and opinions of a number of experts on the subject13, we consider it plausible to 
propose the following list of procedural obligations  under a more or less chronological approach: 
  - Advance publication and notification of  laws, regulations and administrative 
procedures (Article 12.6;  Article 3.1)
14; 
 
 - notification upon initiation of an investigat ory process relating to serious injury or 
threat thereof and the reasons for it (Article 12.1(a))15; 
  - notification before taking a provis ional safeguard measure referred to in 
Article 6 (Article 12.4)
16; 
 
- publication of the report setting forth findings  and reasoned conclusions (Article 3.1;  
Article 4.2(c))17; 
                                                      
12 "Adjective law.  The body of rules governing procedure and practice.  Procedural law".  
"Procedural law.  The rules that prescribe the steps for having a right or duty judicially enforced, as opposed to 
the law that defines the specific rights or duties themselves ."  "Procedure. 1.  A specific method or course of 
action. 2.  The  judicial rule or manner for carrying on a civil lawsuit or criminal prosecution."  
"Substantive law.  The part of the law that creates, defines, and regulates the rights, duties, and powers of 
parties".  Black's Law Dictionary, Ninth Edition, 2009. 
"Adjective law.  The aggregate of rules of procedure or practice.  Also called adjectival law, as 
opposed to that body of law that the courts are established to administer (called  substantive law ), it means the 
rules according to which the  Substantive Law is administered, e.g., Rules of Ci vil Procedure.  That part of the 
law that provides a method for enforcing or maintaining rights, or obtaining redress for their invasion.  Pertains to and prescribes the practice, method, procedure, or legal machinery by which substantive law is 
enforced or made effective".   "Substantive law.  The part of the law that creates, defines, and regulates rights, 
including, for example, the law of contracts,  torts, wills, and real property;  the essential substance of rights 
under law".  West's Encyclopedia of Am erican Law, edition 2. 
13 A. Sykes, "The WTO Agreement on Safeguards", 2006;  Y.S. Lee, "Safeguard Measures in World 
Trade", 2003. 
14 Document G/SG/N/1 contains a "Suggested format  for notifications under Article 12.6 of the 
Agreement on Safeguards.  Prompt notification to the Committee on Safeguards of laws, regulations and administrative procedures relating to safeguard measures as well as any modifications made to them". 
15 Document G/SG/1/Rev.1-G/SG/N/6/Rev.1-G/SG/89 contains a format for this type of notification. 
16 Ibid. 
17 The co-sponsors consider that the question as to whether a report contains reasoned and adequate 
explanations is a substantive matter.  The Appellate Body has held that "299 … the "reasoned conclusions" and 
"detailed analysis" as well as a "demonstration of the re levance of the factors examined" that are contained in 
the report of a competent authority , are the only bases on which a panel may assess whether a competent 
authority has complied with its obligations under the Agreement on Safeguards  and Article XIX:1(a) of the 
GATT 1994.  This is all the more reason why they must be made explicit by a competent authority".  "304.  In sum, Members may suspend trade concessions temporarily by applying safeguard measures " only" in 
accordance with Article XIX of the GATT 1994 and with the Agreement on Safeguards , including Article 3.1 of 
that Agreement.  The last sentence of the latter provision, as elaborated by  Article 4.2(c) of that Agreement, 
requires that:  (a) the "competent au thorities … publish a report";  (b) the re port contain "a detailed analysis of 
the case";  (c) the report "demonstrat[e] … the relevance of  the factors examined";  (d ) the report "set[ ] forth 
findings and reasoned conclusions";  and (e) the "findings and reasoned conclusions" cover "all pertinent issues of fact and law" prescribed in Article XIX of the GATT 1994 and the relevant provisions of the Agreement on 
Safeguards " (report of the Appellate Body:  WT/DS248/AB /R).  Therefore, no n-compliance with the  G/SG/W/222 
 Page 5 
 
 
   
- notification upon making a finding of serious injury or threat thereof caused by 
increased imports and notification upon ta king a decision to apply or extend a 
safeguard measure (Article 12.1(b)(c);  Article 12.2)18; 
 
- notification of non-application of a meas ure to developing countries (Article 9.1)19; 
 
- consultations prior to the application or extension of a measure (Article 12.3)20; 
 
- notification of the results of the consultations (Article 12.5)21; 
 
- immediate notification to the Council for Trade in Goods of the results of the 
mid-term reviews referred to in para graph 4 of Article 7 (Article 12.5)22; 
 
- immediate notification to the Council for Trade in Goods of any form of 
compensation referred to in paragr aph 1 of Article 8 (Article 12.5)23; 
 
- immediate notification to the Council for Trade in Goods of proposed suspensions of 
concessions and other obligations referred to in paragraph 2 of 
Article 8 (Article 12.5).24 
 
 In addition25, the Agreement on Safeguards imposes two further cross-cutting procedural 
requirements relating to:  
- Due process (Article 3.1);  and 
 
- confidential information (Ar ticle 3.2;  Article 12.11). 
 
V. TECHNICAL ASSISTANCE 
 According to Article 13.2 of the Agreement on Safeguards, in order to assist the Committee 
"in carrying out its surveillance function, the Secret ariat shall prepare annually a factual report on the 
operation" of the Agreement. 
 
 The assistance and direct involvement of the Secretariat can be of the utmost importance in 
dealing with requests submitted under Article 13.1 (b).  The Secretariat is the repository of 
notifications and, as a standing body, can contribu te to ensuring a coherent approach over time. 
 
                                                                                                                                                                     
requirement to publish the report setting forth findings and reasoned conclusions has implications for the 
question of compliance with the substan tive provisions of Articles 2 and 4. 
18 Document G/SG/1/Rev.1-G/SG/N/6/Rev.1-G/SG/89, op. cit. 
19 Ibid. 
20 Ibid. 
21 Ibid. 
22 Ibid. 
23 Ibid. 
24 Ibid. 
25 Document G/SG/1/Rev.1-G/SG/N/6/Rev.1-G/SG/89 also contains:  "Format for information to be 
provided upon initiation of a review pur suant to Article 7.2 regarding the extension of a safeguard measure";  
"Format for information to be provided upon cessation of a safeguard measure".  Document G/SG/2 contains a format for "Information to be notified to the Committee wh ere a safeguard investigation is terminated with no 
safeguard measure imposed." G/SG/W/222 
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  TEXT 
 
  The following rules and procedures sha ll apply to requests submitted pursuant to 
Article 13.1(c) of the Agreement on Safeguards. 
 
1. OBJECTIVES 
 
 Through the clarification of the facts of  the situation, the Committee will aim at: 
 
 (a) Enhancing a common understanding of the procedural requirements; 
  (b) achieving greater transparency in the application of safeguard measures;   (c) contributing to improved adherence by all Members to procedural requirements. 
 
 It shall not be intended to serve as a basis for dispute settlement procedures.  
2. SUBJECT MATTER 
 
 For the purposes of this mechanism, procedural  requirements in connection with a safeguard 
measure shall be considered to be the following: 
 
(a) Advance publication and notification of laws, regulations and administrative 
procedures: 
 
Article 12.6:   "Members shall notify promptly the Committee on Safeguards of their 
laws, regulations and administrative pro cedures relating to safeguard measures as 
well as any modificatio ns made to them." 
 
Article 3.1:  "A Member may apply a safeguard measure only following an 
investigation by the competent authorities of  that Member pursuant to procedures 
previously established and made public in consonance with Article X of GATT 1944."  
 
(b) Notification upon initiation of an inv estigatory process relating to serious injury 
or threat thereof and the reasons for it: 
 
Article 12.1:  "A Member shall immediately notify the Committee on Safeguards 
upon:  (a) initiating an investigatory pro cess relating to serious injury or threat 
thereof and the reasons for it." 
 
(c) Notification before taking a provisional measure: 
 
Article 12.4:  "A Member shall make a notification to the Committee on Safeguards 
before taking a provisional safeguard me asure referred to in Article 6." 
 
(d) Publication of reports containing findings and reasoned conclusions: 
 
Article 4.2(c):  "The competent authorities shall publish promptly, in accordance with 
the provisions of Article 3, a detailed a nalysis of the case under investigation as well 
as a demonstration of the relevance of the factors examined ." 
  G/SG/W/222 
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  Article 3.1:  "… The competent authorities shall publish a report setting forth their 
findings and reasoned conclusions reached on all pertinent issues of fact and law."  
 
(e) Notification upon making a finding of serious injury or threat thereof by 
increased imports and notification upon ta king a decision to apply or extend a 
safeguard measure: 
 
Article 12.1:  "A Member shall immediately notify the Committee on Safeguards 
upon:  … (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."  
 
Article 12.2.  "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 thereof caused by increased imports, precise description of 
the product involved and the proposed measure, proposed date of introduction, 
expected duration and timetable for progressive liberalization.  In the case of an 
extension of a measure, evidence that the i ndustry concerned is adjusting shall also 
be provided.  The Council for Trade in Goods or the Committee on Safeguards may 
request such additional information as th ey may consider necessary from the Member 
proposing to apply or extend the measure."  
 
(f) Notification of non-application of a measure to developing countries: 
 
Article 9.1:  Footnote 2:  "A Member shall immediately notify an action taken under 
paragraph 1 of Article 9 to the Committee on Safeguards."  
 
(g) Consultations prior to application of a measure  
Article 12.3:  "A Member proposing to apply or extend a safeguard measure shall 
provide adequate opportunity  for prior consultations with those Members having a 
substantial interest as exporters of the produc t concerned, with a view to, inter alia, 
reviewing the information provided u nder paragraph 2, exchanging views on the 
measure and reaching an understanding on ways to achieve the objective set out in 
paragraph 1 of Article 8."  
 
(h) Notification of the results of the consultations:  
 
Article 12.5:  "The results of the consultations referred to in this Article … shall be 
notified immediately to the Council for Tr ade in Goods by the Members concerned."  
 
(i) Immediate notification to the Council fo r Trade in Goods of the results of the 
mid-term reviews referred to in paragraph 4 of Article 7: 
 
Article 12.5:  "… the results of mid-term reviews referred to in paragraph 4 of 
Article 7 … shall be notified immediately to  the Council for Trade in Goods by the 
Members concerned."  
 
(j) Immediate notification to the Council for Trade in Goods of any form of 
compensation referred to in paragraph 1 of Article 8: 
 
Article 12.5:  "… any form of compensation referred to in paragraph 1 of Article 8 …, 
shall be notified immediately to the C ouncil for Trade in Goods by the Members 
concerned."  G/SG/W/222 
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(k) Immediate notification to the Counc il for Trade in Goods of proposed 
suspension of concessions and other obli gations referred to in paragraph 2 of 
Article 8: 
 
Article 12.5:  "… proposed suspensions of concessions and other obligations referred 
to in paragraph 2 of Article 8, shall be notified immediately to the Council for Trade 
in Goods by the members concerned."  
 
(l) Due process: 
 
Article 3.1:  "A Member may apply a safeguard measure only following an 
investigation by the competent authorities of  that Member pursuant to procedures 
previously established and made public in consonance with Article X of GATT 1994.  
This investigation shall include reasonable public notice to all interested parties and 
public hearings or other appr opriate means in which im porters, exporters and other 
interested parties could present evidence and their views, including the opportunity to 
respond to the presentations of other parties and to submit their views, inter alia, as 
to whether or not the application of a safeguard measure would be in the public interest … ."  
 
(m) Confidential information: 
 
Article 3.2:  "Any information which is by nature confidential or which is provided on 
a confidential basis shall, upon cause be ing shown, be treated as such by the 
competent authorities.  Such information s hall not be disclosed without permission of 
the party submitting it.  Parties providing c onfidential information may be requested 
to furnish non-confidential summaries thereof or, if such parties indicate that such 
information cannot be summarized, the reas ons why a summary cannot be provided.  
However, if the competent authorities find t hat a request for confidentiality is not 
warranted and if the party concerned is either unwilling to make the information 
public or to authorize its disclosure in ge neralized or summary form, the authorities 
may disregard such information unless it can be demonstrated to their satisfaction 
from appropriate sources that the information is correct. " 
 
Article 12.11:  "The provisions on noti fication in this Agreement shall not require any 
Member to disclose confidential information the disclosure of which would impede 
law enforcement or otherwise be contrary to  the public interest or would prejudice 
the legitimate commercial interests of partic ular enterprises, public or private." 
 
3. PROCEDURES 
 
 With a view to clarifying the factual situation: 
 
(a) The affected Member shall submit a written request in which it presents the facts of 
the situation and its arguments. 
 
(b) Within 60 days from the date of circulat ion of the request, the Member against which 
the request has been submitted shall tran smit the relevant in formation it deems 
appropriate. 
 
(c) In the first round of consultations, to be held within 90 days from the date of 
circulation of the request, the Chairpers on of the Committee shall ask the affected  G/SG/W/222 
 Page 9 
 
 
  Member to present its case.  Subsequently, and at the same meeting, the Member 
against which the request has been submitte d shall present its views.  Any Member 
participating in the consultations may present its views regarding the facts of the situation. 
 
(d) At the request of the Members concerne d, the Chairperson of the Committee shall 
convene additional rou nds of consultations. 
 
(e) Within 30 days from the date of the last round of consultations, and to assist the 
Committee in carrying out its surveillance f unction, the Secretariat shall circulate 
among the Members a factual report on the case based on the information provided 
by the Members concerned, its notifi cations database and any other reliable 
information available to it. 
 
(f) Within 30 days from the date of circulation of the factual report, the Members 
concerned may submit written comment thereon. 
 
(g) After considering the comments received , the Chairperson of the Committee, on 
his/her own responsibility, shall submit a re port, at the next regular meeting of the 
Committee, containing a summary of th e proceedings and the factual findings. 
 
(h) After the meeting of the Committee, the Chairperson's report shall be forwarded to 
the Council for Trade in Goods. 
 
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