WORLD TRADE  
ORGANIZATION   
G/SG/W/220 
10 November 2011 
 (11-5788) 
Committee on Safeguards Original:   Spanish 
  
 
STATEMENT BY THE DELEGATION OF ECUADOR 
 
(Regarding request under Article 13.1(b) 
of the Agreement on Safeguards) 
 
 
 The following statement was made by the dele gation of Ecuador at the meeting held on 
27 October 2011 under agenda item D - Request under Article 13.1(b) of the Agreement on 
Safeguards.  
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I. BACKGROUND 
On 10 May 2001, in document G/L/957, Colo mbia requested that the Committee on 
Safeguards (the Committee) analyse, rule and report its  findings on whether, in the investigation that 
led to the imposition of a definitive safeguard measur e, the procedural requirements set forth in the 
Agreement on Safeguards had been met.  Colombia  also requested that the Committee report its 
findings to the Council for Trade in Goods.  
II. FACTS 
As emerges from the factual account below, Ec uador strongly disagrees with version of the 
facts presented by Colombia in its request, which ar gues that the procedural requirements set forth in 
the Agreement on Safeguards were not met:  (a) On 24 February 2010, the domestic industry, consid ering itself to be seriously affected by the 
massive increase in imports of goods classified  under NANDINA subheading 7007.21.00, requested 
the initiation of an investigation with a view to the adoption of a safeguard  measure, in accordance 
with the WTO rules.  (b) On 19 April, the Investigating Authority, by means of Resolution No. 10061 published in 
Official Journal No. 174, decided to initiate an  investigation.  The Resolution established, inter alia , 
that the Investigating Authority: 
 
(i) "will gather information relating to the i nvestigation up to 45 days from the date of 
initiation of the investigation"; 
(ii)  "… will hold a hearing for all interested parties within a period of 45 days of the date 
of initiation of the investigation, … (and) may hold separate hearings, of which the 
parties will be previously informed";  and 
(iii)  "will assess all the information and documentation submitted by the interested 
parties". G/SG/W/220 
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  The purpose of these provisions was to guarantee explicitly and ab initio  the central role that 
interested parties are called upon to play in the i nvestigation process, in addition to making them the 
primary source of information for the Investigating Authority.  (c) On 22 April, in document G/SG/N/6/ECU/8, pursu ant to Article 12.1(a) of the Agreement on 
Safeguards, Ecuador notified the Committee of the initia tion of an investigation into imports of goods 
classified under NANDINA subheading 7007.21.00.  The notification stated that Ecuador had recorded a massive increase in imports calculated at 209 per 
cent in volume terms (rising from 488.21 kg in 2003 to 1,513.10 kg in 2008) and at 174 per cent in 
c.i.f. value terms (rising from US$1,919,760 in 2003 to US$5,277,400 in 2008), which had adversely 
affected the domestic industry, whose domestic ma rket share had declined (from 31.8 per cent in 2003 
to 10.4 per cent in 2009) in spite of an increase in domestic demand for windshields.  (d) On 27 May, through Resolution 565 published in Official Journal No. 214, the Foreign Trade 
and Investment Council rejected the domestic indus try's request for the application of a provisional 
safeguard measure, in the absence of a determination of the existence of "critical circumstances" that 
could cause damage that it would be difficult to repair.  (e) On 4 June, upon prior notice issued on 26 May, a public hearing was held in order that, 
pursuant to Article 3.1 of the Agreement on Safeguards,  "the importers, 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 …". 
 (f) Taking part in the public hearing were representa tives of:  the Colombian Ministry of Industry 
and Tourism, the Chilean Embassy, the Peruvian Em bassy, the Colombian Association of Auto Parts 
Producers (ACOLFA), the Ecuadorian companies CR ILAMYT S.A., Quito Motors SACI, VITEMCO 
Ecuador and CRISTALAUTOS, and the Ecuadorian Ch amber of Automotive Industry (CINAE), who 
were given ample and sufficient opportunities to pr esent evidence and the criteria and grounds they 
considered relevant to the case, as well as to res pond to the evidence and arguments put forward by 
the other participants.  
At this hearing, among other matters the re presentatives of the Chilean and Peruvian 
Embassies requested that imports from their respectiv e countries be excluded from the application of 
the safeguard measure, pursuant to Article 9.1 of the Agreement on Safeguards;  furthermore, the 
representative of the Colombian Ministry of Industry and Tourism requested that imports of "armoured windshields" be excluded from th e application of the safeguard measure. 
 
Proceeding from the understanding that the interested parties should be the primary source of 
information, at the end of the public hearing the Investigating Authority invited them to provide additional comments and/or supplementary information within the following 15 days. 
 (g) On 11 October, through Resolution 587 published in Official Journal No. 297, the Foreign 
Trade and Investment Council, determined, inter alia , that: 
(i) There was a clear threat of injury caused by increasing imports;  and 
(ii) the increase in these imports had already led to a decline in the sales, production, 
utilized capacity and productivity of the domestic industry and its share of the 
domestic market.  G/SG/W/220 
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  (h) In the light of Resolution 587, it was conseque ntly decided to apply a definitive safeguard 
measure on imports of goods classified under NANDINA subheading 7007.21.00, irrespective of their 
origin. 
(i) Resolution 587 did not establish the date of entry into effect of the safeguard measure, but 
Article 7 of the Resolution expressly provided that the Investigating Authority would subsequently 
determine the date of entry into effect and the tim etable for progressive liberalization of the measure. 
(j) Resolution 587 also provided for the following: 
(i) To exclude imports of "armoured windshiel ds" from the application of the safeguard 
measure;  and 
(ii) to exclude imports from Chile and Peru from the application of the safeguard 
measure, pursuant to Article 9.1 of the Agreement on Safeguards. 
(k) Article 6 of Resolution 587 made express provi sion for "the Colombian Government to be 
invited to take part" in the cons ultations on the proposed measures, in  accordance with Article 12.3 of 
the Agreement on Safeguards. 
(l) This Resolution was notified to the Committee in document G/SG/N/8/ECU/3-
G/SG/N/10/ECU/4 of 15 October and circulated on 21 October.  This document contains the 
notification under Article 12.1(b) and the notifi cation under Article 12.1(c) of the Agreement on 
Safeguards. 
 Paragraphs 4 and 5 of the doc ument provide a precise description of the proposed measure 
("the application of a specific tariff of US$12.72 per windshield") and specify the proposed date of 
introduction of the measure ("1 November 2010"). 
 Paragraph 8 of the document also indicates the expected timetable for the progressive 
liberalization of the measure ("Year 1:  US$12.72.  Year 2:  US$9.55.  Year 3 First half:  US$6.36.  
Year 3 Second half:  US$3.18"). 
 (m) Note Verbale No. 25734 of 18 October invited th e Colombian Government to take part in 
consultations, proposing a reasonabl e range of dates.  Moreover, several electronic communications 
insisting on this matter were immediately sent vi a the Ecuadorian Embassy in Bogota to the 
Directorate of Integration of the Colombian Ministry of Commerce, Industry and Tourism. 
(n) The consultations finally took place in Quito on 25 October, that is, several days after 
Resolution 587 had been published in the Official J ournal and, among other matte rs, the details of the 
proposed measure had been notified to the Committ ee.  During these consultations, information was 
provided on the investigation, its conclusions and th e proposed measure;  in particular, the aims were 
to review the information contained in docum ent G/SG/N/8/ECU/3-G/SG/N/10/ECU/4, exchange 
views on the measure, resolve any technical concerns and try to reach an agreement. 
(o) Given the failed outcome of the talks, it was d ecided that the originally proposed date of 
1 November would be maintained, as notifie d to the Committee on Safeguards in document 
G/SG/N/8/ECU/3-G/SG/N/10/ECU/4. 
(p) Ecuador notified the non-application of the measure to imports from Chile and Peru in 
accordance with Article 9.1 in document G/SG /N/8/ECU/3/Suppl.1-G/SG/N/10/ECU/4/Suppl.1-
G/SG/N/11/ECU/1. 
(q) In order to pursue all avenues to reach an unde rstanding, with the greatest openness and in an 
effort to reduce the impact on Colombian exporters  as much as possible, it was agreed to hold a new G/SG/W/220 
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  round of consultations on 23 November.  Although some points were clarified, diverging views 
remained on certain specific issues.  Neither in this, nor in the previous round of consultations did the 
delegation of the Colombian Government ever mention or call attention to any procedural deficiencies 
or failure to comply with procedural requireme nts.  Moreover, the cons ultations provided ample 
opportunity for Colombia to raise any relevant con cerns about matters relating to the measures as well 
as any possible trade compensation.  Therefore, it s interests and right to defence were always 
preserved. 
(r) As a single text could not be agreed upon, th e outcome of this round of consultations was 
unilaterally notified by Ecuador in document G/L/946-G/SG/92. 
III. LEGAL CONSIDERATIONS WITH RESPECT TO REQUEST G/L/957 
(a) Under Article 13.1(b) of the Agreement on Safe guards, it is for the Committee to determine, 
at the request of an affected Member, whether the procedural requirements of the Agreement on 
Safeguards have been complied with.  In Ecuador 's view, the only way to do this is by properly 
establishing the facts and making an objective and im partial assessment of them.  Establishing the 
facts and assessing them can only be properly achieved within the framewo rk of a procedure;  so far 
the Committee has not agreed upon a specific procedure for examining the requests under 
Article 13.1(b) of the Agreement on Safeguards.  Th erefore, in order to perform this function the 
Committee must adopt the corresponding rules of pro cedure;  in the absence of such rules, Ecuador 
considers that the due process guarantees necessary to  make adequate and reasoned findings in this 
case would be lacking. 
(b) As regards the scope of the function entruste d to the Committee under Article 13.1(b), it is 
quite clear that the findings may only relate to  compliance with the procedural requirements. 
The Committee must be extremely cautious in order to avoid running the risk of usurping the 
roles assigned to the WTO dispute settlement bodies,  i.e. panels and the Appellate Body, under 
Article 3.2 of the Understanding on Rules and Pro cedures Governing the Settlement of Disputes, a 
provision that empowers the dispute settlement sy stem to clarify the provisions of the covered 
agreements and to preserve the rights and obligations of Members.  
Strict observance of the scope of the Committe e's function under Article 13.1(b) is also 
fundamental in that this provision must not be in voked with a view to obtaining determinations of 
violation of the substantive requirements set out in the Agreement on Safeguards without complying 
with the rules and procedures established in the Understanding on Rules and Procedures Governing 
the Settlement of Disputes.  Such a course of acti on would run directly counter to the provisions of 
Article 23 of the Understanding.  
(c) The Committee in all its actions, including th e establishment of the procedure referred to 
above, must proceed in accordance with the rule of  consensus (Rule 33 of the Rules of Procedure of 
the Committee).  
IV. CONCLUSIONS 
In view of the foregoing: 
(a) Ecuador considers that it has fully complied with  the procedural obligations laid down in the 
Agreement on Safeguards.  All notifications were submitted in a timely fashion and in keeping with 
the formats adopted by the Committ ee, meaning that Ecuador ensured due transparency and provided 
the necessary information.  From the outset and du ring the course of the process, every effort was 
made to afford the interested pa rties effective and sufficient opportunities to provide information and 
present and defend their interests.  Consultations  regarding the issue were conducted before the  G/SG/W/220 
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  safeguard measure came into force.  Moreover, in lin e with the principle of good faith and in order to 
reduce the impact on Colombian exporters as much  as possible, a new round of consultations took 
place on 23 November. 
(b) Ecuador considers that the request by Colombia lacks merit because it is based on inaccurate 
factual premises. 
(c) Ecuador considers that in order for the Co mmittee to perform the function set out in 
Article 13.1(b) of the Agreement on Safeguards, the sine qua non  is that the latter adopt the 
corresponding rules of procedure, and that  these should be adopted by consensus. 
(d) It is essential to ensure strict adherence to the scope of the Committee's function under 
Article 13.1(b). 
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