WORLD TRADE  
ORGANIZATION   
WT/DS415/R/Add.1 
WT/DS416/R/Add.1 
WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
31 January 2012 
 (12-0543) 
 Original:   Spanish 
  
 
     
DOMINICAN REPUBLIC - SAFEGUARD MEASURES ON 
IMPORTS OF POLYPROPYLENE BAGS AND 
TUBULAR FABRIC 
 
 
Final Report of the Panel  
 
Addendum 
 
 
 This addendum  contains Annexes A to H to the Report of the Panel to be found in 
document WT/DS415/R-WT/DS416/R-WT/DS417/R-WT/DS418/R.  
_______________ 
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  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 
 
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  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 
 
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  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 
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  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 
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  ANNEX A-1 
 
EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF 
THE COMPLAINANTS 
 
 
I. INTRODUCTION 
1. This dispute relates to the provisional safe guard measure ("provisional measure") and the 
definitive safeguard measure ("definitive measure")  imposed by the Dominican Republic on imports 
of polypropylene bags and tubular fabrics.  Cost a Rica, El Salvador, Guatemala and Honduras ("the 
complainants") consider that these measures are inconsistent with the Agreement on 
Safeguards ("AS") and with the General Ag reement on Tariffs and Trade 1994 ("GATT"). 
2. These measures give rise to serious concerns about the conduct of trade policy in the region 
of Central America and the Caribbean.  They ar e being used by the Dominican Republic as an 
instrument to circumvent its regional comm itments under the Free Trade Agreement between 
Central America and the Dominican Republic (" Central America-DR Agreement") and under the 
agreement between the Dominican Republic, Centra l America and the United States ("DR-CAFTA").  
For that purpose, the Dominican Republic carried out  an investigation in accordance with its domestic 
legislation on safeguard measures, the AS and the GATT.  The resulting safeguard measures were 
notified to the WTO. 
3. In carrying out the investigation and adopting the safeguard measure, the Dominican Republic 
acted in a manner inconsistent with various provisi ons of WTO law, including:  (a) the determination 
of the domestic industry entails arbitrary definitions of the products under investigation, the failure to 
consider relevant evidence and the unjustified exclus ion of certain domestic producers;  (b) there is no 
determination as to unforeseen deve lopments and the effect of the obligations incurred under the 
GATT that are alleged to have resulted in increased  imports causing serious injury to the domestic 
industry;  (c) the increase in imports is not of th e nature or magnitude required by the AS for the 
application of safeguard measures;  (d) the determination of serious injury and causal link relate to a 
domestic industry of the Dominican Republic which is in a favourable positi on and suffers no damage 
on account of imports, but rather, if anything, on account of other factors relating to the domestic 
industry's own performance or economic conditions  in the Dominican Republic;  (e) the measures 
have not been applied on a most-favoured-nation basi s, as required by Article 2.2 of the AS (which 
calls for safeguard measures to be applied to all imports under investigation, irrespective of their 
source), for which reason an argument was made fo r the exclusion of specific imports pursuant to 
Article 9.2 of the AS, without observi ng the requirement of parallelism. 
II. FACTUAL BACKGROUND 
4. Tubular fabric is described as a woven fabric  of synthetic polypropylene yarn, which is 
produced from:  (i) polypropylene resin;  (ii) calcium carbonate;  (iii) colouring agent;  
(iv) flexographic inks;  and (v) solvents.1  The yarn is wound on to bobbins and fed to circular looms 
in order to give the fabric a tubular form.  The tubular fabric constitutes the raw material or main 
input for the manufacture of polypropylene bags. 
                                                      
1 Initial technical report of the DEI, page 10.  WT/DS415/R/Add.1 
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  5. Polypropylene bags are described as bags or  sacks for packaging.  They are produced from 
bobbins or rolls of tubular fabric, which in turn  are produced from resin and other minor components.2  
Polypropylene bags are used for the packaging of food, agro-industria l and industrial products.3 
III. THE MEASURES AT ISSUE 
6. The provisional measure consisted of an ad valorem  tariff surcharge of 38 per cent on imports 
of the products under investigation.  It was app lied from l April 2010 until 17 October 2010 (a period 
of 200 days).  The provisional measure was not applied on a most-favoured-nation basis, within the 
meaning of Article I:1 of the GATT, nor irrespectiv e of the source of the imports, within the meaning 
of Article 2.2 of the AS, since the Commission re lied on Article 9.1 of the AS, providing for the 
exclusion from the scope of the measure of impor ts coming from and/or originating in Mexico, 
Panama, Colombia and Indonesia.4  The provisional measure is not a measure provided for in the 
Schedule of Concessions of the Dominican Repub lic.  Thus, the measure was notified to the 
WTO Committee on Safeguards on 26 March 2010.5 
7. The definitive measure consisted of an ad valorem  tariff surcharge of 38 per cent on imports 
of the products under investigation.  It came into  effect on 1 April 2010, for a period of 18 months 
until 21 April 2012.6  The definitive measure is not being applied on a most-favoured-nation basis, 
within the meaning of Article I:1 of the GATT, or irrespective of the source of the imports, within the 
meaning of Article 2.2 of the AS, since the Commi ssion relied on Article 9.1 of the AS, providing for 
the exclusion from the scope of the measure of imports coming from/or originating in Mexico, 
Panama, Colombia and Indonesia.7  The definitive measure is app lied as an alternative duty to the 
MFN tariff and is not a measure provided fo r in the Schedule of Concessions of the 
Dominican Republic.  Thus, the measure was notified to the WTO Committee on Safeguards on 
8 October 2011.8 
IV. THE FRAMEWORK FOR THE PANEL'S REVIEW 
8. The objective assessment by a panel must have certain characteristics.  It must be a critical 
and in-depth examination  of the explanations provided by the investigating authorities9, in which it 
determines whether those explanations are reasoned and adequate , as well as explicit .10  T h i s  
assessment may not consist of finding "support for [the ] conclusions [of the investigating authorities] 
by cobbling together disjointed references sca ttered throughout a competent authority's report".11 
                                                      
2 Ibid. 
3 Public notice of provisional measure;  public notice of definitive measure. 
4 Addendum to Resolution CDC-RD-SG-061-2010, dated 16 March 2010, deciding on the application 
of provisional measures, Exhi bit CEGH-6, second article. 
5 G/SG/N/7/DOM/1, G/SG/N/8/DOM/1, G/ SG/N/11/DOM/1, Exhibit CEGH-18. 
6 Public notice of definitive measure. 
7 Resolution CDC-RD-SG-089-2010 of the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic, dated 5 October 2010 (final resolution), fourth article.  
Exhibit CEGH-9. 
8 (G/SG/N/7/DOM/1/Suppl.1, G/SG/N/8/ DOM/1/Suppl.1 (Exhibit CEGH-19);  
G/SG/N/7/DOM/1/Suppl.1/Corr.1, G/SG/N/8/ DOM/1/Suppl.1/Corr.1 (Exhibit CEGH-20);  
G/SG/N/8/DOM/1/Suppl.2, G/SG/N/10/DOM/1, G/SG/N/11/DOM/1/Suppl.1 (Exhibit CEGH-21). 
9 Appellate Body Report, US – Lamb , paragraph 106. 
10 Ibid.;  see also Appellate Body Report, US – Steel , paragraphs 287 and 297. 
11 Appellate Body Report, US – Steel , paragraph 326. WT/DS415/R/Add.1 
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  9. The basis for the assessment by a panel must be the findings, conclusions and analysis 
contained in the public reports of the authority.
12  This assessment cannot be based on ex post facto  
explanations. 
V. LEGAL CLAIMS 
A. THE DEFINITION OF THE DOMESTIC INDUSTRY IS INCONSISTENT WITH ARTICLES 3.1, 4.1(c),  
4.2(c)  OF THE AS 
1. The Commission failed to establish adequa tely and reasonably that the imported 
products were like or directly competitive products 
10. The Regulatory Commission on Unfair Trade Practices and Safeguard Measures (the 
"Commission") held that the imported product und er investigation was a single product jointly 
comprising tubular fabric and polypropylene bags.  However, the Commission and its Investigations 
Department (DEI) made a number of basic errors in arriving at this definition: 
 Despite the fact that the interested par ties put forward a variety of questions and 
factual information concerning the defin ition of the imported product, neither the 
Commission nor the DEI gave an adequate and reasoned explanation in response to those objections.  The questions concerned pointed to the fact that tubular fabric and polypropylene bags are distinct products and cannot be considered to be the same 
product. 
 The only reason for considering tubular fabr ic and polypropylene bags as the same 
product was the classification based on Note 2 in Chapter 63 of the 
Dominican Republic's Customs Tariff.
13  What would appear to underlie the 
interpretation given to Note 2 by FERSAN, the DEI and the Commission (to the effect that heading 6305 covers tubular fabr ic) is the presumption that a tubular fabric 
is equivalent to an incomplete or unfinis hed bag.  However, that presumption is not 
explained in any of the relevant reports or  resolutions.  Moreover, according to the 
Directorate of Customs of the Dominican Repub lic, this Note is inconsistent with the 
Harmonized System Convention.
14 
11. In the absence of reasoned findings and conc lusions on the definition of the product under 
investigation, the Commission defined the product inv estigated inconsistently with Articles 3.1, last 
sentence, and 4.2(c) of the AS and, in consequen ce, defined the domestic industry inconsistently with 
Articles 4.1(c), 3.1, last sentence, and 4.2(c) of the AS. 
12. In addition, the Commission failed to make a valid determination that  the domestic products 
were directly competitive with the imported pr oducts under investiga tion.  The Commission 
considered the production of tubular fabric and pol ypropylene bags as the same domestic industry, 
without having demonstrated that both products, as an input and as final goods, respectively, are 
                                                      
12 Ibid., paragraph 299. 
13 According to Note 2, as described by the Commi ssion in its preliminary resolution, "heading 6305 
(corresponding to bags and sacks for packaging) also covers tubular fabric for bags, in accordance with 
interpretative rule 2(a), (preliminary resolution, paragraph 31). 
14 Communication from the Directorate-General of Customs (DGA) dated 25 November 2009, 
folio 000089 in the file, Exhibit CEGH-13.  WT/DS415/R/Add.1 
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  directly competitive with each other.  Further, th e Commission failed to make a determination with 
regard to the directly competitive domestic produc t having the same scope as the imported product, 
since the Commission considered tubular fabric and polypropylene bags manufactured from resin 
(excluding bags manufactured from tubular fabric) as the domestic product and, at the same time, 
considered tubular fabric and pol ypropylene bags in general (regard less of whether the latter were 
produced from resin) as the imported product.  Fi nally, the Commission determined the directly 
competitive products without following the order of analysis established by the Appellate Body for 
that purpose
15, inasmuch as the Commission first defined the status of FERSAN as that of the 
domestic industry, and sub sequently defined the directly competitive products.16 
13. The Commission could not have validly iden tified the domestic producers constituting the 
domestic industry, and this therefore entails a violati on of Articles 4.1(c), 3.1, last sentence, and 4.2(c) 
of the AS. 
2. The Commission improperly excluded produc ers of directly competitive domestic 
products 
14. The Commission considered that the domestic  industry is the industry producing tubular 
fabric and polypropylene bags made from resin17 and that that status fell to the applicant, FERSAN.18  
However, the Commission reached that conclu sion despite making two fundamental errors: 
 It excluded out of hand specific categories of producers of the directly competitive 
domestic product on the basis of an erroneous  interpretation of the term "producers" 
in Article 4.1(c) of the AS.  The requirement of being a "producer" of tubular fabric 
and polypropylene bags made from resin  makes the status of producer conditional on 
a specific production process.  The Commission's interpretation is contrary to the interpretation given to the term "producer s" in the context of the Anti-Dumping 
Agreement and the Agreement on Subs idies and Countervailing Measures.
19 
 Even under their own interpretation of the term "producers" based on production from 
resin, the DEI and the Commission excluded domestic producers producing the domestic product from resin, such as the companies FIDECA and TITAN. 
15. For these reasons, the Commission failed to define the domestic industry in a manner 
consistent with Articles 4.1(c), 3.1, last sentence, and 4.2(c) of the AS. 
                                                      
15 Appellate Body Report, US – Lamb  paragraph 87. 
16 Initial resolution, page 4:  preliminary resolution, paragraphs 13 and 14 and 26-36;  definitive 
resolution, paragraphs 18-23. 
17 Preliminary resolution, paragraph 13;  preliminary report, pages 55-58;  final resolution, paragraph 
18;  final report, pages 43-46. 
18 Ibid. 
19 Panel Report, US – Lamb , paragraph 7.69.  See also, with re gard to countervailing measures, the 
Panel Report in Mexico – Olive Oil , paragraph 7.192;  and with regard to anti-dumping measures, the 
Panel Report in EU – Salmon , paragraph 7.114. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
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  B. T
HE ABSENCE OF DETERMINATIONS ON UNFORESEEN DEVELOPMENTS AND THE EFFECT OF 
THE OBLIGATIONS INCURRED UNDER THE GATT  IS INCONSISTENT WITH ARTICLE XIX:1(a)  
OF THE GATT  AND ARTICLES 3.1, 4.2(c)  AND 11.1(a)  OF THE AS 
1. The Commission failed to demonstrate that there were unforeseen developments 
16. The Commission produced no reasoned finding or conclusion to demonstrate the existence of 
unforeseen developments, as well as the logical co nnection between those developments and the 
increased imports alleged to have caused ser ious injury to the domestic industry. 
17. In the initial report, the DEI transcribed the argu ments of FERSAN to the effect that there had 
been unforeseen developments caused by the oblig ations assumed in the DR-Central America 
Agreement for which the total reduction period was ascertained from 2004.20 
18. In the preliminary report, the DEI stated th at FERSAN added to its claim further unforeseen 
developments such as:  (i) the international econo mic crisis of 2008 and its repercussions on the 
regional economy, and (ii) the introduction of goods  produced under regimes allegedly incompatible 
with the DR-Central America Agreement, for whic h reason a bilateral violation of that agreement 
would qualify as unforeseen developments.21  The DEI also mentioned FERSAN's argument that, with 
regard to the economic/financial crisis of 2008, the DEI simply confined itself to affirming that this 
"had a significant impact on the economy of the regi on which has not spared the Dominican industry".  
Moreover, the DEI itself disregarded the relevance of the alleged violation of the 1998 bilateral 
agreement as an event brought ab out by unforeseen developments. 
19. Lastly, in the final report, the DEI added a ne w aspect relating to China's accession to the 
WTO.22  Moreover, no opinion was given as to wh ether that fact was not foreseen by the 
Dominican Republic in its capacity as a WTO Member , at the time of entering into its obligations 
under the GATT (of 1994). 
20. The descriptive and scattered references to unforeseen developments in the initial, 
preliminary and final determinations fail to satisfy  the standard of factual demonstration required by 
Article XIX:1(a) of the GATT in relation to Articl es 3.1, last sentence, and 4.2(c) of the AS.  
Consequently, the DEI and the Commission acted inconsistently with those provisions. 
2. The Commission failed to explain how th e GATT obligations caused the increased 
imports of tubular fabric and polypropylene bags 
21. The DEI and the Commission recognized the ob ligation under Article XIX:1(a) of the GATT 
to demonstrate the unforeseen developments and th e effect of the obligations incurred under the 
GATT which resulted in increased imports.23  The Appellate Body has confirmed that, in order to 
demonstrate the effect  of obligations assumed under the GATT, it is necessary to demonstrate that 
specific obligations have been assumed.24 
                                                      
20 Initial report, page 15. 
21 Preliminary report, pages 70-71. 
22 Final report, page 66.  We take it that the refere nce to "China's incursion into the multilateral trading 
system" refers to China's accession to the WTO. 
23 Preliminary report, page 69;  final resolution, paragraph 27;  final report, pages 63-65. 
24 Appellate Body Report, Argentina – Footwear , paragraph 91;  Appellate Body Report, Korea – 
Dairy , paragraph 84.  WT/DS415/R/Add.1 
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  22. There is no finding in the reports or resolutions  that identifies the GATT obligations alleged 
to have caused the increased imports, or that indi cates how those obligations would have resulted in 
an increase in the imports concerned.  This is in consistent with Article XIX:1(a) of the GATT and 
Articles 3.1, last sentence, 4.2(c) and 11.1(a) of the AS. 
C. T
HE DETERMINATIONS REGARDING INCREASED IMPORTS ARE INCONSISTENT 
WITH  ARTICLE  XIX:1(a)  OF THE GATT  AND ARTICLES 2.1, 3.1 AND 4.2(c)  AND 6 OF THE AS 
1. The Commission failed to demonstrate an increa se in imports in absolute terms that was 
"recent enough, sudden enough, sharp enough, and significant enough" 
23. The Commission reached the conclusion that the imports increased in absolute terms, causing 
serious injury to the domestic industry25, despite having found that there was a "marked decrease"26 in 
imports in absolute terms towards the end of the pe riod.  Nor did the Commission provide an adequate 
and reasoned explanation as to why, despite the ab solute decrease towards the end of the period, it 
still considered that there had been an increase in imports.  It was not demonstrated, therefore, that 
there had been an increase in imports that was su fficiently sudden, recent, sharp and significant to 
support the contention of an absolute increase in im ports, in line with the interpretation given by the 
Appellate Body in Argentina – Footwear .27 
24. Likewise, neither the DEI nor the Commission co mplied with the obligation to examine the 
upward trend of imports during the period investigat ed, since they only referred to a comparison of 
the absolute levels at the beginning and end of the period of investigation.28 
25. Consequently, the DEI and the Commission failed to establish a reasoned conclusion 
regarding the increased imports in a manner consis tent with Article XIX:1(a) of the GATT and 
Articles 2.1, 3.1, last sentence, 4.2(c), 11.1(a) and, in addition, Article 6 of the AS with respect to the 
preliminary determination. 
2. The Commission failed to demonstrate an in crease in imports relative to domestic 
production 
26. The Commission reached the conclusion that im ports increased in relative terms, causing 
serious injury to the domestic industry.29  However, the Commission reached this conclusion despite 
having found that the relative share of imports in relation to domestic produ ction fell steadily and 
uninterruptedly for most of the period of investigation. 
27. The Commission's final conclusion is not explained in the light of the factual findings of the 
DEI.  From 2007, imports clearly showed a steady and uninterrupted downward trend in relation to 
domestic production. 
28. Consequently, the Commission's determination that  there had been an increase in imports in 
absolute terms was inconsistent with Article XI X:1(a) of the GATT and Articles 2.1, 3.1, last 
                                                      
25 Preliminary resolution, first article;  fina l resolution, paragraph 31 and first article. 
26 Preliminary report, page 68;  final report, page 61. 
27 Appellate Body Report, Argentina – Footwear , paragraph 131. 
28 Appellate Body Report, US – Steel , paragraph 354. 
29 Preliminary resolution, first article;  fina l resolution, paragraph 31 and first article. WT/DS415/R/Add.1 
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  sentence, 4.2(c), 11.1(a) and, in addition, Article  6 of the AS with respect to the preliminary 
determination. 
D. T
HE DETERMINATIONS REGARDING SERIOUS INJURY , AND THE DEMONSTRATION OF 
CRITICAL CIRCUMSTANCES (WITH REGARD TO THE PROVISIONAL MEASURE ) ARE 
INCONSISTENT WITH ARTICLE XIX:1(a)  OF THE GATT  AND ARTICLES 2.1, 3.1, 4.1(a),  4.2(a),  
4.2(c)  AND 6 OF THE AS 
29. In both the preliminary and the final determina tion, the Commission concluded that there was 
serious injury despite having committed numerous errors: 
 It failed to carry out a disaggregated a nd complete analysis regarding the many 
segments of the domestic industry, as required by the Appellate Body.30  Therefore, 
no separate analysis was provided regarding the production of tubular fabric and regarding the production of polypropylene bags. 
 In the preliminary determination, the Co mmission failed to evaluate all relevant 
factors listed in Article 4.2(a) of the AS, since it omitted from its analysis the factor 
relating to the productivity of the domestic industry. 
 In the preliminary and final determinations , the Commission concluded that there was 
serious injury despite the fact  that the relevant indicators showed the contrary or were 
inadequately evaluated. 
 Neither the DEI nor the Commission provide d an adequate and reasoned explanation 
of the "critical" nature of the circumstan ces that allegedly justified the provisional 
measure in accordance with Article 6 of the AS. 
30. The Commission's determination of serious injury to the domestic industry was therefore 
inconsistent with Articles 2.1, 3.1, last sentence, 4.1( a), 4.2(a), 4.2(c) and 5 of the AS, as well as with 
Article XIX:1(a) of the GATT. 
E. T
HE CAUSATION DETERMINATIONS ARE INCONSISTENT WITH ARTICLE XIX:1(a)  OF THE 
GATT  AND ARTICLES 2.1, 3.1, LAST SENTENCE , 4.2(a),  4.2(c)  AND 6 OF THE AS 
31. The Commission imposed the provisional and definitive measures on the basis of its 
conclusion that imports had increased, "causing" serious  injury to the domestic industry of fabrics and 
bags.31  In reaching this conclusion, the Commi ssion was guilty of two serious omissions: 
 It failed to demonstrate by means of a relevant analytical method the causal 
relationship between the alleged increase in imports and the alleged serious injury to 
the domestic industry.  The Commission confined itself to making assertions with 
                                                      
30 Appellate Body Report, US – Hot-Rolled Steel , paragraphs 195, 213, 214;  Appellate Body Report, 
Mexico – Rice , paragraphs 180-187. 
31 Preliminary resolution, first article;  final resolution, first article.  WT/DS415/R/Add.1 
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  regard to causation
32, but it failed to provide an ade quate and reasoned explanation in 
this respect. 
 It failed to carry out the non-attribution anal ysis required by Article 4.2(b) of the AS.  
In violating this obligation, the Commission failed to show that the harmful effects 
caused by factors other than imports woul d not be attributed to the imports under 
investigation. 
32. As a result, the Commission determined the cau sal link between the imports and the serious 
injury to the domestic industry inconsistently with Ar ticles 2.1, 3.1, last sentence, 4.1(a), and 4.2 of 
the AS and Article XIX:1(a) of the GATT, as well as with Article 6 of the AS, with regard to the 
provisional measure. 
F. THE MEASURES AT ISSUE VIOLATED THE REQUIREMENT OF PARALLELISM AND ARE 
INCONSISTENT WITH ARTICLES 2.1, 2.2, 3.1, 4.2, 6 AND 9.1 OF THE AS 
33. In accordance with the requirement of parallelis m, if a Member decides to exclude certain 
imports from the scope of a measure, the investiga ting authorities must satisfy themselves that those 
imports are also excluded from the evaluations relati ng to substantive aspects in which they were the 
subject of analysis.33 
34. In the analysis of imports, the Commission considered all imports that entered the 
Dominican Republic between 2006 and 2009.34  Thus, in the preliminary and final resolutions, the 
Commission decided to apply the provisional and final measures, respectively, to all imports of 
tubular fabric and polypropylene bags under headings 5407.20.20 and 6305.33.90 of the 
Dominican Republic's Customs Tariff.35  Nevertheless, in the same resolutions, the Commission 
decided to exclude imports from Mexico, Panama , Colombia and Indonesia from the scope of both 
measures, on the ground that they collectively accounted for 1.21 per cent of the imports investigated.
36 
35. As a result, the Commission decided to apply the provisional and definitive measures 
inconsistently with Articles 2.1,  2.2, 3.1, last sentence, 4.2(a), 4.2(b), 4.2(c), 6 and 9.137 of the AS (the 
latter provision in relation to the provisional measure). 
                                                      
32 Preliminary resolution, paragraph 47;  preliminary report, page 88;  final resolution, paragraphs 37 
and 38. 
33 Appellate Body Report, US – Steel , paragraph 441.  Appellate Body Report, US – Tubular Goods , 
paragraph 181, with citation from US – Lamb , paragraph 103. 
34 Preliminary report, Annexes I and II:  final report, Annexes I and II. 
35 Preliminary resolution, second article, as amended by the amending preliminary resolution:  final 
resolution, second article. 
36 Preliminary resolution, fourth article, as amended by the amending preliminary resolution;  final 
resolution, fourth article. 
37 According to the statistics on imports, imports from Thailand amounted to 0.32 per cent of total 
imports during the period under investigation, and thus constituted less than 3 per cent of imports.  It was 
therefore necessary to excl ude imports from Thailand from the scope of  the measures at issue, in accordance 
with Article 9.1 of the AS.  However, the resolutions do  not exclude Thailand from the scope of the measures at 
issue. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page A-10   
  G. T
HE DOMINICAN REPUBLIC ACTED INCONSISTENTLY WITH ARTICLE XIX:2  OF THE GATT  
AND ARTICLES 8.1 AND 12.3  OF THE AS 
36. The Commission imposed the definitive measure without timely notification and without 
affording Members with a substantial interest in the products under investigation an opportunity for 
consultations as provided in Article 12.3 of the AS  and Article XIX:2 of the GATT.  Nor did the 
Commission provide an opportunity to obtain an adequate means of trade compensation in accordance 
with Article 8.1 of the AS and Article XIX:2 of the GATT. 
VI. REASONS FOR REQUESTING SUGGESTIONS CONCERNING 
IMPLEMENTATION OF POSSIBLE RULINGS AND RECOMMENDATIONS BY THE PANEL 
37. The complainants request the Panel, on the basis of Article XIX:1 of the DSU, to suggest that 
the Dominican Republic immediately put an end to the definitive measure.  This request is also based 
on the previous practice followed by other panels.
38 
38. The magnitude and number of the errors co mmitted by the DEI and the Commission in 
carrying out their investigation lead to a situati on analogous to that obtained in the above-mentioned 
cases, so that the only way in which the Dominican  Republic could properly apply the possible rulings 
and recommendations of the Panel would be thro ugh the immediate revocation of the definitive 
safeguard measure. 
VII. REQUEST FOR RULINGS AND RECOMMENDATIONS 
39. On the basis of the foregoing, the complainan ts request the Panel to issue the following 
findings and rulings:  (i) the provisional measure an d the definitive measure are inconsistent with 
Article XIX:I(a) of the GATT and Articles 2.1, 2.2, 3.1, 4.1(a), 4.1(c), 4.2(a), 4.2(b), 4.2(c), 6 and 
11.1(a) of the AS;  and (ii) the Dominican Republic  acted inconsistently with Article XIX:2 of the 
GATT and Articles 8.1 and 12.3 of the AS. 
40. Pursuant to the provisions of the second sentence of Article 19.1 of the DSU, the 
complainants request the Panel to make sugges tions for the application of its rulings and 
recommendations with regard to the definitive measure. 
                                                      
38 Panel Report, Argentina – Poultry , paragraph 8.7;  Panel Report, Guatemala – Cement II , 
paragraph 9.6;  Panel Report, Mexico – Steel Pipes and Tubes , paragraph 8.12.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page A-11 
  
  ANNEX A-2 
 
EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF 
THE DOMINICAN REPUBLIC 
 
 1. This dispute concerns the Dominican Republic's  imposition of a 38 per cent tariff on imports 
of polypropylene bags and tubular fabric by mean s of a provisional measure and, subsequently, a 
definitive measure.  These measure s are contested by Costa Rica, El Salvador, Guatemala and 
Honduras ("the complainants") in the light of Artic le XIX of the General Agreement on Tariffs and 
Trade 1994 ("GATT") and various provisions in the Agreement on Safeguards ("AS"). 
2. As the course of action followed by the Dominican Republic did not, however, result in 
suspension of the obligations undertaken with respec t to these products, or withdrawal or modification 
of concessions, neither Article XIX nor the AS ar e applicable to the measures contested by the 
complainants.  Consequently, there are no grounds for this dispute and the present procedure before 
the Panel cannot continue. 
3. If the Panel does decide that Article XIX of the GATT and the AS do apply to the measures 
contested, the Dominican Republic affirms, as a pr eliminary, that several claims are adequately 
identified in terms of Article 6.2 of the Unde rstanding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and are not covered by the Panel's terms of reference, or that the 
complainants have not been able to make a prima fa cie case for any violation.  This is the case for the 
complaint based on the alleged omission of determin ations of unforeseen developments and the effect 
of GATT obligations, an omission which, in the view of the complainants, resulted in inconsistency in 
the determinations of the increase in im ports, serious injury and the causal link. 
4. Likewise, the Panel's terms of re ference do not include Article 4. 1(a) of the AS as the legal 
basis for the complaint concerning the causal li nk, which was not included in the request for 
consultations.  For the same reason, the complaint concerning the obligation to reach agreement on a 
means of trade compensation, based on Article 8.1 of  the AS, does not fall within the Panel's terms of 
reference.  Lastly, the complainants failed to el aborate on some complaints in their first written 
submission, and it is therefore the Dominican Republic's understanding that they have been 
withdrawn.  This is the case for the complaints in points (h), (i), (l) and (m) of the request for the 
establishment of a panel submitted by the complainants.
1  The last three complaints (points (i), (l) and 
(m)) are not included in the Panel's terms of reference either. 
5. If the Panel should decide to consider the measu res at issue in the light of the GATT and the 
AS, the Dominican Republic affirms that, contra ry to what is asserted by the complainants, the 
measures at issue fully comply with the GATT a nd the AS, particularly as regards the following: 
 The definition of the domestic industry; 
 determinations of the existence of unfor eseen developments and the effect of the 
obligations incurred under the GATT; 
 determinations of the increase in imports, th e serious injury, the critical circumstances 
and the causal link; 
                                                      
1 WT/DS415/7, WT/DS416/7, WT/DS417/7 and WT/DS418/7. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page A-12   
   the parallelism requirement;  and 
 notice of the measure and the holding of consultations. 
6. Contrary to the contention by the complainan ts, the definition of the domestic industry is 
based on valid determinations of the imported product under investigation and the directly 
competitive domestic product.  As to the imported product under investigatio n, the complainants 
question the treatment of tubular fabric and polypropyle ne bags as a single product to be investigated.  
The previous reports on which the complainants base their case, however, provide little, if any, 
guidance.  The paragraphs mentione d in the Appellate Body Report on US – Lamb  refer to the 
inclusion of certain actors in the domestic indus try, without dealing with  determination of the 
imported product under inv estigation or the likeness of the lamb meat produced in the United States 
and that imported.  The facts and the products und er consideration are, moreover, very unlike each 
other. 
7. The other Appellate Body Report mentioned, Chile – Price Band System , only mentions in 
this connection US – Lamb  and, what is more, relates to a s ituation in which the Chilean authorities 
had only made an implicit affirmation of liken ess or direct competition, simply providing an 
ex post facto  explanation.  This is in direct contrast  to the present case, where there are many and 
detailed findings about the product under consideration and the direc tly competitive product in the 
initial report and resolution, the public notice of init iation, the preliminary report and resolution, as 
well as the final report and resolution of the Regul atory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic ("th e Commission").  It is difficult to claim, 
therefore, that the considerations of the Appellate Body in that case are relevant to the present case.  
The reports and resolutions cited also show that, cont rary to what is asserted by the complainants, the 
Commission and the Investigation Department (DEI) took into account comments by certain 
importers, exporters, and government authorities, even when they did not respond to them. 
8. The complainants' analysis provides no conclusi ve legal grounds based on Article XIX of the 
GATT or on the AS to indicate that treating tubular fabric and polypropylene bags as a single product 
for the purposes of the investigation is inconsistent  with the covered agreements.  Prior Reports by 
Panels in US – Softwood Lumber V , EC – Salmon (Norway)  or Korea – Certain Paper  found that the 
Anti-Dumping Agreement did not provide any guidance on the way in which the product under consideration had to be determined, r easoning that also applies to the AS. 
9. As regards the determination of the directly competitive domestic product , it is clear that 
it was based on what FERSAN, the petitioner in the procedure before the Commission, stated in its 
request for initiation of the investigation.  It  is necessary to emphasize, however, that the 
Commission's reports and resolutions show that nume rous factors were evaluated affirming that the 
domestic product and the product unde r consideration were directly competitive.  The complainants 
also contend that there must be symmetry between  the definition of the product under consideration 
and the definition of the domestic product.  This symmetry would be lacking as the product has been 
defined as "produced from resin".  The technical re ports and the resolutions show, however, that the 
criterion "produced from resin" was not a priori imposed when defining the directly competitive 
product, but is the logical result of the exclusion fro m the definition of the domestic industry of those 
manufacturers which import the product under considera tion.  Furthermore, the complainants do not 
indicate the legal basis from which the alleged ob ligation to respect symmetry in the definition of 
products that are in direct competition derives.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page A-13 
  
  10. The complainants also put forward an order fo r the analysis which the Dominican authorities 
should have followed in their reports, based solely on a finding by the Appellate Body in its Report in 
US – Lamb , without indicating how such an obligation could be derived from Article 3.1, 
last sentence, or Article 4.2(c) of the AS.  Even though the Dominican Republic questions the 
existence of such an obligation, it should be note d that the logical sequence of the preliminary and 
definitive reports that are an integral part of the re spective resolutions are consistent with the order of 
analysis put forward by the complainants. 
11. In definitive, the Dominican authorities defined the product under consideration as 
"polypropylene bags and tubular fabric" a nd the directly competitive domestic product as 
"polypropylene bags and tubular fabric";  the direct competition relationship is obvious and, 
furthermore, similar practices in anti-dumping in vestigations have been approved in a manner 
consistent with the Reports of the various Panels, as is the case for US – Softwood Lumber V , Korea – 
Certain Paper  or EC – Salmon (Norway) .  As the definitions of the product under consideration and 
the directly competitive domestic product are valid,  they constitute an appropriate basis for the 
Dominican authorities' determination of the domestic industry. 
12. With regard to the determination of the domestic industry , the Dominican authorities 
pointed out that three producers declar ed themselves to be interested parties, in two of which most of 
the output used imported tubular fabric, in other words, the product under consideration.  Those 
manufacturers which import the product under consider ation were excluded, in accordance with Law 
No.1-02, whose consistency with the AS was not  questioned by the complainants, following an 
adequate and reasoned explanati on.  Consequently, there was no a priori exclusion of certain 
categories of producer, and the procedure was not b ased on an erroneous interpretation of the word 
"producers", there is no violation of Article 4.1(c) or  other provisions of the AS in this sense, and the 
selection of FERSAN as the only component of the domestic industry is valid.  Moreover, 
independently of the exclusion of certain manufact urers in the present case, the Dominican Republic 
points out that it reserves the right to require a mi nimum level of processing or value added before an 
economic actor can be deemed to be a "producer" with in the meaning of Article 4.1(c) of the AS, so 
the idea that whoever cuts and sews tubular fabric is considered to be a "producer" of polypropylene 
bags is highly questionable. 
13. With regard to unforeseen developments pur suant to Article XIX of the GATT, the 
Dominican Republic considers that their determin ation does not constitute a binding obligation as a 
prerequisite for the application of a safeguard meas ure.  This understanding is  based on the fact that 
the AS does not contain such an obligation and therefore derogates from Article XIX in this sense.  This interpretation is corroborated by the intenti on of the States which ne gotiated the Uruguay Round, 
by the text, and the exhaustive nature of the AS , the legislation of other WTO Members, and by 
ambiguous declarations and the absence of clear guidelines in this respect on the part of the 
WTO's decision-making bodies.  For these reasons, the Dominican Republic also expresses its disagreement with the prior Reports of the Appellate Body in Argentina – Footwear  and Korea – 
Dairy , which require proof of the unforeseen devel opments that resulted in increased imports. 
14. Despite the foregoing, if the Panel decides that  proof of unforeseen developments constitutes 
a binding obligation, both the Preliminary Technical  Report and the Final Technical Report contain 
detailed findings and co nclusions in this regard, mentioning the tariff reduction process with the entry 
into force of the DR-CAFTA and the DR-Central Amer ica Treaty.  Reference is also made to the form 
submitted by FERSAN, in which the rising cost of pr oducing polypropylene bags  and tubular fabric is 
addressed, as well as the increase in energy costs, which harmed its competitive position and opened 
the way to use of less costly imports.  The Do minican authorities therefore provided a reasoned and WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page A-14   
  adequate explanation of the unforeseen developm ents whose effect was an increase in imports, 
complying with Article XIX.1(a) of the GATT and Ar ticles 3.1, last sentence, 4.2(c) and 11.1(a) of 
the AS. 
15. Regarding the effect of GATT obligations, the Dominican Republic gave a 40 per cent tariff 
concession for products classified under subheadi ngs 5407.20.20 and 6 305.33.90, concerning 
polypropylene bags and tubular fabric.  The Do minican Republic therefore complied with this 
requirement in Article XIX of the GATT to the effect that it must be demonstrated, as a matter of fact, 
that the importing Member has incurred obligati ons, including tariff concessions, in accordance with 
the words of the Appellate Body in its Report on Argentina – Footwear . 
16. Concerning the increase in imports, the Commission's findings indicated a recent enough, 
sudden enough, sharp enough and significant en ough increase, both in qualitative terms and 
qualitatively, to cause serious injury.  Despite the exis tence of this increase, there was a 14.68 per cent 
drop recorded in the last year of the investig ation period, whereas the increase was 50.06 per cent over 
the whole period investigated, also taking into acc ount the aforementioned drop.  According to the 
findings of the Dominican authorities, this decreas e towards the end of the investigation period was 
more of an incidental and temporary nature as it w as caused by the lower rate of economic growth in 
the Dominican Republic in 2009, which saw a de crease of 30.03 per cent in total imports, while 
during this period, imports of the product under consideration fell by a lesser amount.  In addition, the 
Commission determined that there was a recovery in  imports of tubular fabr ic and polypropylene bags 
in early 2010. 
17. Moreover, contrary to what is asserted by th e complainants, the Dominican Republic did not 
limit itself to comparing the end points in the investigation period but undertook a point-by-point analysis for each period separately, taking into account  both the rate and the volume of the increase.  
It thus fully complied with the obligation to analyse the trend in imports, as specified by the 
Appellate Body in Argentina – Footwear .  The Commission also conducted an analysis of the relative 
increase in imports, finding an increase in 2007 alon e.  Nevertheless, having previously proven the 
existence of an increase in absolute terms, it comp lied with Article 2.1 of the AS, which requires an 
increase in absolute terms or relative to dom estic production, compliance with one of these 
requirements being sufficient.  The claims by the complainants that there was no increase in imports 
or that its existence was not determined in accord ance with Articles 3.1, last sentence, 4.2(c) and 
11(a) of the AS should therefore be rejected. 
18. With regard to the determination of serious injury, the claim that the Commission did not 
undertake a separate and comprehensive analysis of the numerous segments of the domestic industry 
should be rejected as there is no positive obligati on in the AS requiring that serious injury be 
evaluated by segment or separately.  It clearly emerges from the reports, moreover, that there was a 
joint analysis of the polypropylene bags and tubular  fabric segments, and that the analysis was not 
limited to the production of bags alone, as contended by the complainants.  Both the wording of the 
technical reports and the figures provided by the dom estic industry (which are expressly mentioned in 
the reports) show that the investigating authorit y proceeded on the basis of aggregate data for 
polypropylene bags and tubular fabric. 
19. Regarding the alleged failure to evaluate th e "productivity" indicator in the preliminary 
determination, the Dominican Republic affirms that a finding by the Panel in this regard would clearly 
not be necessary in order to ensure a positive settle ment of the dispute inasmuch as the measure is no 
longer in effect and has been replaced retroactiv ely by the final determination, about which the 
complainants have not made the same claim.  In addition, the trend in this indicator compares  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page A-15 
  
  production in volume and value terms with the numbe r of employees, and both indicators are to be 
found in the preliminary report.  When the compla inants require that productivity be evaluated under 
a specific heading in the preliminary report, they are adopting a purely formalist approach, which is 
obviously inappropriate for a preliminary determina tion.  In fact, Article 6 of the AS, concerning 
provisional measures, indicates that Article 4.2 of th e AS applies to the investigation subsequent to 
the provisional measure and not to the prelimin ary determination, inasmuch as the obligation to 
evaluate all indicators of injury concerns the "s ubsequent investigation" after the adoption of a 
preliminary measure. 
20. With regard to proof of serious injury, the Dominican authorities found conclusive indications 
of significant overall impairment, based on consiste nt and growing losses suffered by the domestic 
industry, the negative impact on increases in inventor ies, the relative contraction in the value of 
production, negative cash flow and the problems en countered by the domestic industry in gaining a 
larger market share despite its large investment and loss-making selling prices.  In definitive, the 
investigating authority gave an ad equate and reasoned explanation of the serious injury suffered by 
the domestic industry, so the Dominican Republic fu lly complied with Article XIX.1(a) of the GATT 
and Articles 2.1, 3.1, last sentence, 4.1(a), 4.2(a), 4.2(c) and 6 of the AS. 
21. Concerning the alleged failure to prove the critical  nature of the circumstances that justified 
the imposition of the provisional measure, the Do minican Republic sees no need to reach findings 
regarding the provisional measure, which has expire d and been replaced by the definitive measure.  
Even so, the investigating authority proved the exis tence of injury difficult to repair in terms of 
Article 6 of the AS if no provisional measure was ad opted.  The investigating authority noted, among 
other indicators, a 206 per cent decline in fina ncial performance and a 199 per cent increase in 
inventories. 
22. Regarding the claims relating to the alleged fa ilure to determine a causal link, many of the 
complainants' claims are biased.  They mention that the domestic industry's share of domestic 
apparent consumption showed a sharp rise, whereas in fact it only exceeded its 2006 share in 2009, 
but remained below it in 2007 and 2008.  The same  applies to their interpretation of the share of 
imports, which only from 2009 onwards and by selli ng at a loss on the part of FERSAN, managed to 
fall below the 2006 levels.  The same also applies to  the alleged downward trend in imports, whereas 
they increased steadily from 2006 to 2008, with onl y an incidental and temporary drop in 2009. 
23. The complainants also allege that the DEI a nd the Commission did not act consistently with 
the AS in attributing the financia l losses to the imports, although it is shown in the preliminary and 
final reports that, if it had not been for the flow of imports, the domestic i ndustry could have coped 
with the loans it contracted through economies of sc ale resulting from its investment without suffering 
financial losses.  Likewise, the technical reports, by showing how imports replaced sales of domestic 
products, indicated how the increase in inventories is attributable to the increas ed imports.  As regards 
cash flows, the decrease follows FER SAN's strategic decision to keep its prices low and its production 
levels high, precisely because of the pressure exercise d by imports, so the negative trend in this factor 
as well has to be attributed to the imports, contra ry to what is contended by the complainants. 
24. The argument that injury caused by compe tition from the domestic producers excluded was 
wrongly attributed to the imports should be rejected as well.  The reason why these producers were 
excluded was, precisely, because they imported the product under consideration, so the injury 
resulting from competition on their part was directly caused by the imports.  It should, therefore, be found that the investigating authority conducted an a ppropriate analysis of the causal link between the 
increased imports and the serious injury to the domestic industry. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page A-16   
  25. Regarding the parallelism requirement, the Do minican Republic points out that the final 
resolution provides for the application of a 38 per cent tariff, whereas the DEI had found that a tariff 
of 40 per cent was justified.  Bearing in mind also that the imports not excluded from the investigation 
only represent 1.21 per cent of total imports, the Do minican Republic maintains that the findings in 
the technical reports did not vary, given this infinitesimal share. 
26. Concerning the notice of the measure in accordan ce with Article XIX:2 of the GATT, this 
provision requires that the safeguard measure  be notified to the Committee on Safeguards 
immediately after and not before its adoption, so  the notice of the measure to the Committee only 
three days after the decision to impose it should be considered as immediate notice in conformity with 
Article XIX:2 of the GATT and Article 12 of the AS. 
27. It also emerges clearly from the final report that the Dominican authorities gave adequate 
opportunity for consultations pursuant to Article 12.3 of the AS.  The final technical report contains 
evidence of a large number of communications and notifications between the Commission and the 
complainants, as well as the holding of a public hearing on 12 May 2010.  It cannot, therefore, be validly claimed that adequate opportunities for co nsultations were not given to Members having a 
substantial interest. 
28. As regards the complainants' claim concerning Article 8.1 of the AS, which requires the 
maintenance of a substantially equiva lent level of concessions and other obligations to that existing, it 
simply cannot be asserted that such a level was not  maintained as, even after the imposition of the 
measure, the tariffs were lower than the boun d tariffs, which set a ceiling of 40 per cent. 
_______________ 
 
 
  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-1 
  
  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 
 WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-2   
  ANNEX B-1 
 
EXECUTIVE SUMMARY OF THE SUBMISSION OF COLOMBIA 
 
 
I. INTRODUCTION 
1. Colombia is participating in this dispute because of its systemic interest in the application of 
Article XIX of the General Agreement on Tari ffs and Trade (GATT 1994) and the Agreement on 
Safeguards (AS) and in the belief that safeguards are vital tools for the management of a country's trade policy and that, in practice, their use should no t be prohibited but allowed, in conformity with 
Members' obligations under th e aforementioned agreements. 
2. In this statement, Colombia expresses its views on the six points set out below. 
II. APPLICABILITY OF ARTICLE XIX OF THE GATT 1994 AND OF THE AS TO 
THE PRESENT DISPUTE 
3. In a request for a preliminary ruling the Dominican Republic asked the Panel to rule on the 
non-applicability of Article XIX of the GATT 1994 a nd of the AS with respect to the measures at 
issue in this dispute.  The complainants responded to this request by rejecting the claims of the 
Dominican Republic.  On 12 May 2011, the Panel se nt the parties and third parties a communication 
stating that it considered it inappropriate to decide this point by means of a preliminary ruling and that 
it would pay special attention to the arguments of the third parties.  In the light of the above and without prejudice to the decision already taken by the Panel concerning the timing of its ruling on the 
applicability of Article XIX of the GATT and the AS to the present dispute, Colombia is taking this 
opportunity to comment on certain aspects of the Dominican Republic's request for a preliminary 
ruling. 
4. Specifically, the Dominican Republic suggests that Article XIX of the GATT 1994 and the 
AS are not applicable to the measures challenged by  the complainants.  Colombia believes that the 
main reason put forward by this Member is that  the 38 per cent tariff surcharge does not exceed its 
bound tariff of 40 per cent for tariff headings 5407.20 .20 and 6305.33.90, and that consequently there 
is no suspension, in whole or in part, of tari ff concessions, as indicated in Article XIX of the 
GATT 1994.
1 
5. With respect to the possibility of pleading th e non-applicability of certain provisions within 
the context of a preliminary ruling, the Domi nican Republic argues that paragraph 15 of the 
Panel's working procedures in this case establishes th e possibility of requesting preliminary rulings, at 
the latest, with the respondent's first written submission.2  The Dominican Republic then connects this 
procedure with the provisions of Articles 7.1, 7.2 and 11 of the DSU.3  The Dominican Republic 
develops its arguments on the basis of a panel's obligation to make an objective assessment of the 
facts of the case, the applicability of the covered ag reements and the conformity of the former with 
the latter, and asserts that it would be more useful  to settle this question of the applicability of 
                                                      
1 Dominican Republic, Request for a preliminary ruling, Section 3.4, paragraphs 37-46. 
2 Paragraph 15 of the Panel's working procedures. 
3 Dominican Republic, Request for a preliminary ruling, Section 3.1.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-3 
  
  Article XIX of the GATT 1994 and of the AS by m eans of a preliminary ruling, this being a 
preliminary and global matter.
4 
6. Colombia notes, in particular, two arguments ma de by the complainants in response to the 
request for a preliminary ruling:  (i) Article XIX of the GATT 1994 and the AS are applicable to the 
measures in question, considering that the latter were the result of an investigation initiated, 
conducted and concluded under their provisions and t hose of the national safeguards legislation;  
moreover, the measures were notified in conformi ty with the procedures laid down for safeguard 
measures5;  and (ii) preliminary rulings deal with pr ocedural issues and not matters of substance.6 
7. The parties to this dispute disagree about what  issues can form the subject of a preliminary 
ruling.  Colombia notes that preliminary rulings arose out of a practice among Members which has been endorsed by panels and the Appellate Body
7;  however, there is no provision in the DSU that 
regulates this practice.  On the other hand, Articles 11, 12, 13, 14, 15 and 16 of the DSU contain 
specific provisions regarding panel re ports.  In this connection, Colombia notes that the general rule is 
to issue a panel report and exceptionally a preliminar y ruling.  Colombia also notes the relevance to 
the analysis of this case of certain rules identified by  panels and the Appellate Body.  In particular, it 
wishes to draw attention to the panel report in Canada – Aircraft  in which, in relation to a discussion 
over jurisdiction, the panel declined to give an advance ruling, as requested by one of the 
parties (Canada), considering that there was no re quirement in the DSU or any established practice 
that indicated an obligation to rule on a pr eliminary issue in advance of the panel report.8  Moreover, 
neither does paragraph 15 of the Panel's working procedures specify when the Panel should rule on 
preliminary issues. 
8. For Colombia, the rules that can be extracted from certain panel and Appellate Body reports 
show that it is incumbent on whoever raises the pr eliminary question to demonstrate that the issuing 
of a ruling in advance of the final report is justified.9  In this connection, it should be borne in mind 
that the general rule is for rulings  to be made in the final report. 
9. In Colombia's opinion, if a Member has stated that it is implementing a procedure aimed at 
applying a safeguard measure and its actions thro ughout the investigation and notification process 
have been consistent with the application of a me asure of this kind, then it would seem that to 
maintain, during the course of panel proceedings, that its measure was not really a safeguard measure 
would be inconsistent with its previ ous course of action.  Within this c ontext, it is relevant to consider 
the application of Article 3.10 of the DSU and in par ticular the reference to the spirit of good faith in 
which the parties should engage in the proceedings. 
                                                      
4 Dominican Republic, Request for a preliminary ruling, Section 3.2. 
5 Objection of the complainants to the request for a preliminary ruling, Section III.B.3 and 4, 
paragraphs 90, 124, etc. 
6 Objection of the complainants to the request for a preliminary ruling, Section III.A.1 and 3, 
paragraphs 14 to 21, 24 to 34. 
7 The complainants acknowledge this in paragraph 14 of their written objection to the request for a 
preliminary ruling and the Dominican Republic does so in paragraphs 13 and 27 of its request for a preliminary 
ruling. 
8 Panel Report in Canada – Aircraft , paragraph 9.15. 
9 Considering that the argument used in this case is  that of the usefulness of the preliminary ruling for 
settling the present dispute, it is clear that this us efulness must actually be specifically identified and 
demonstrated, not just mentioned.  This conclusion is reinforced by the Appellate Body ruling in EC – 
Hormones  (paragraph 152), where an objection raised by a pa rty had to be sufficiently specific to enable the 
Panel to address it. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-4   
  III. THE DETERMINATION OF THE PRODUCT BEING IMPORTED AND THE 
DOMESTIC PRODUCT IN THE AS 
10. The complainant claims that the Dominican Repub lic:  (i) failed to establish correctly that the 
products imported and the domestic products  were like or directly competitive
10 and (ii) wrongly 
interpreted the term "producers" as used in the AS, with the result that domestic producers of directly 
competitive products were excluded.11  Thus, the complainant conclud es that the concept of "domestic 
industry" in Article 4.1(c) of the AS was not properly established. 
11. Colombia notes that the legal problem facing this Panel is specifically centred on determining 
whether the inclusion of tubular fabric and polypropy lene bags in a single cat egory of products under 
investigation is consistent with the Dominican Re public's obligations under the AS, especially with 
respect to the concept of "domestic industry". 
12. A fundamental element used in defining the dom estic industry is the determination of the 
product under investigation, from the outset of the i nvestigation, since the scope given to this term 
defines the context for determining where the "lik e or directly competitive products" are to be 
situated, while also forming the basis for id entifying the domestic producers that make up the 
domestic industry and the data needed to analyse the injury.  An incorrect identification of the 
products under analysis would necessarily lead to an inappropriate definition of the domestic industry.  
Furthermore, according to the findings of the Appellate Body in US – Lamb , the identification of the 
products which are like or directly competitive is the first step in determining the scope of the 
"domestic industry".12 
13. Like the complainants, Colombia is of the opi nion that this particular order of analysis 
established in cases of anti-dumping investigations13 should be applied to safeguard cases 
mutatis mutandis , since it is the rational order for any safegua rd investigation, insofar as both its main 
purpose and its scope revolve around the product under investigation . 
14. Colombia agrees with the observations made by the Dominican Republic in paragraph 138 of 
its first written submission, where it points out that  there are no previous determinations concerning 
how the product under investigati on should be defined under the AS and that there are no express 
rules on this point.  However, it does not agree w ith the Dominican Republic that this question is 
completely unregulated by the AS and that there are therefore no clear criteria for defining how this 
finding should be made. 
15. Colombia suggests that a systemic interpretation of the AS under Article 31 of the 
1969 Vienna Convention on the Law of Treaties (Vie nna Convention) would yield sufficient evidence 
to establish the meaning of "product under investiga tion" and how that product should be identified in 
a safeguard investigation.  The second paragraph of the preamble to the AS expressly states that the 
Agreement clarifies and reinforces Article XI X of the GATT 1994 entitled "Emergency Action on 
                                                      
10 First written submission of the complainants, paragraphs 77-80. 
11 First written submission of the complainants, paragraphs 160-163. 
12 Appellate Body Report in US – Lamb , paragraph 87. 
13 Footnote 89 of the first written submission of the complainants reads as follows: 
"We note that in disputes concerning anti-dumping duties at least two panels have confirmed 
that the starting point in the analysis of likeness is the definition of the imported product under 
investigation, so that this product can be compared with the domestic product.  See Panel Reports in US – Softwood Lumber V , paragraphs 7.152 and 7.153, and EC – Salmon , 
paragraph 7.51."  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-5 
  
  Imports of Particular Products" (emphasis added), which suggests that the product it is intended to 
investigate should be delimited and established using some sort of criterion.  Likewise, Article 2.1 of 
the AS specifies that "a Member may apply a safeguard  measure to a product only if that Member has 
determined, pursuant to the provisions set out belo w, that such product is being imported into its 
territory in such increased quantiti es […]" (emphasis added).  This Article is even more emphatic in 
stipulating that the scope of the product on which th e safeguard measure is imposed (which should be 
taken to mean the product under investigation itsel f) is fairly limited, inasmuch as it uses the 
term product  in the singular and not in the plural, as in  other parts of the AS.  If an exegetical 
interpretation of the ordinary meaning of the words is applied, in accordance with the rule envisaged 
in paragraph 1 of Article 31 of th e Vienna Convention, Article 2.1 of the AS would appear to indicate 
that the product under investigati on could only be a single product and could not comprise multiple 
products.  However, Colombia considers that, in fact, the product under investigation can be made up 
of several products, provided that it can be shown th at they are like or directly competitive.  This 
conclusion follows from the systemic interpretation of the AS. 
16. Colombia considers that the rule in Article 4.1( c) of the AS also applies to the determination 
of the product under investigation because of the close relationship between the definition of the 
domestic industry and the product investigated.  If it were not accepted that the products investigated 
ought to be, at least, like or directly competitive, it would not be possible to make this finding with 
respect to domestic products since it would be impossible to compare di ssimilar categories of 
products.  The present case involves precisely this si tuation:  although it might perhaps be said that 
the imported tubular fabric competes with or is like the domestic product, the same cannot be said 
about the imported tubular fabric  and domestic polypropylene bags.14  Insofar as the standard of 
Article 4.1(c) requires the domestic  and imported products to be like or directly competitive, if the 
"product investigated" contained products which in  themselves were not, it would be impossible to 
prove the existence of such likeness or direct comp etitiveness.  Thus, if the definition of the product 
investigated grouped together products which were not like or directly competitive, it would not be 
possible to determine the domestic industry for the purposes of the investigation. 
17. Colombia notes that the Dominican Republic h as not specified any criterion for establishing 
how several products, i.e. tubular fabric and polypropy lene bags, can be included in a single category.  
Apparently, this finding is based solely on considerations of a customs nature, as follows from 
Section 3 et seq. of the final report of the Inves tigations Directorate of the Dominican Republic's 
Regulatory Commission on Unfair Trade Practices and Safeguard Measures.15  Acceptance of this 
interpretation would run contrary to the principle of effectiveness in the interpretation of treaties 
derived from Article 31 of  the Vienna Convention16, inasmuch as it would enable products of virtually 
any kind to be included as a single product in an i nvestigation, whatever the relationship between 
them.  Under this interpretation products as different as alcoholic beverages and dairy products could 
be included in a single investigation since, accord ing to the Dominican Republic, there are no rules 
that can be applied, a result that is ma nifestly absurd and contrary to the AS. 
                                                      
14 As will be explained later, Colo mbia considers that th e argument according to which inputs are part 
of a production chain is not sufficient to demonstrate a relationship of likeness or direct competitiveness. 
15 Final Technical Report of the DEI, dated 13 July 2010. 
16 In the following cases the Appellate Body referred to the application of the principle of effectiveness 
in the interpretation of treaties in the cour se of settling disputes relating to the AS:  Korea – Dairy , 
paragraphs 80-82, and Argentina – Footwear , paragraph 81. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-6   
  18. In Colombia's opinion, the Panel should reject  the Dominican Republic's argument according 
to which, for reasons of a customs nature, the two products should be treated as the same product 
investigated.
17 
19. Colombia concludes that the grouping together of tubular fabric and polypropylene bags in a 
single category of products under investigation, without making an analysis of likeness or direct competitiveness between the products in question, is inconsistent with Articles 4.1(c), 3.1, 
last sentence, and 4.2(c) of the AS. 
IV. THE "UNFORESEEN DEVELOPMENTS AND EFFECT OF THE OBLIGATIONS" 
REQUIREMENT UNDER ARTICLE XIX:1(a) OF THE GATT 1994 AND THE AS 
20. With respect to this point, according to the complainants, the Dominican Republic was unable 
to demonstrate the existence of unforeseen devel opments, insofar as it failed to give a reasoned 
explanation of how (i) the entry into force of DR-C AFTA, (ii) the global financial crisis, and (iii) the 
entry of China into the WTO constitute unforeseen de velopments that would justify the imposition of 
a safeguard.  For the complainants, the Dominican au thorities' explanations of why these events were 
unforeseen developments are inadequate.
18 
21. In Colombia's opinion, the Panel should take into account the fact that although there are 
certain requirements which any Member of the WTO mu st satisfy in order to prove this element, the 
standard cannot be construed in such a way as to preclude the application of the said developments 
de facto by establishing requirements that are difficult to satisfy in practice. 
22. In this connection, Colombia considers it re levant to clarify the concept of unforeseen 
developments in such a way as to permit a clear a nd workable application of the concept, for the 
purpose of enabling the application of safegua rd measures under the conditions envisaged in 
Article XIX of the GATT 1994 and the AS. 
V. ASSESSMENT OF THE INCREASE IN IMPORTS UNDER ARTICLE XIX OF THE 
GATT 1994 AND THE AS 
23. The complainants and the Dominican Republic are at one in accepting that the requirements 
that must be met in determining the nature of the increase in imports for the purposes of 
Articles XIX:1(a) of the GATT 1994 and 2.1 of the AS are those outlined by the Appellate Body in its 
report in Argentina – Footwear .19  Moreover, they also agree that, as decided by the Appellate Body20, 
                                                      
17 See footnote 35. 
18 Paragraph 197 of the first written submissi on of the complainants reads as follows: 
"The Commission recognized the obligation incurred under Article XIX:1(a) of the GATT to 
the effect that, in order to apply a safeguar d measure, it is necessa ry to show that the 
unforeseen developments and the effect of the obligations incurred under the GATT are giving rise to increased imports which are causing serious injury to the domestic industry.  However, 
the Commission did not establish any finding or well-founded conclusion that would 
demonstrate the existence of unforeseen developments, or a logical connection between those developments and the increased imports said to  have caused serious injury to the domestic 
industry.  This omission by the Commission is therefore incompatible with Article XIX:1(a) 
of the GATT and Articles 3.1, last sent ence, 4.2(c) and 11.1(a) of the AS." 
19 First written submission of the complainants, pa ragraph 241, and first written submission of the 
Dominican Republic, paragraph 309.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-7 
  
  in evaluating the increase the authorities should take the trend in imports during the period of 
investigation into account rather than concentrate on one or more points.
21 
24. Nevertheless, the complainants consider that  the Dominican Republic's assessment of the 
behaviour of imports during the period of inves tigation does not satisfy the above-mentioned legal 
requirements and is therefore at odds with Articles XIX:1(a) of the GATT 1994 and 2.1, 3.1, 4.2(c) 
and 6 (solely with respect to the preliminary determination) of the AS.22  For its part, the 
Dominican Republic claims to have made a proper assessment of the increase in imports, which 
showed that that increase was sudden, sharp, significant and recent.23 
25. Colombia considers that certain additional elemen ts could help to clarify how, in this specific 
case, the increased imports criteria should be taken in to account.  Colombia therefore wishes to draw 
attention to the following aspects mentioned in panel and Appellate Body reports:  (i) the increase in 
imports should be assessed on a case-by-case basis24;  (ii) the analysis of the increase in imports 
should be conducted with a view to establishing whet her it is such as "to cause or threaten to cause 
serious injury to the domestic industry", that is to  say, the increase in imports should be analysed in 
the light of all the actions of the investigating au thority, in the same way as the determination of 
injury and the causal link between the increased imports and the said injury25;  (iii) the increase should 
be assessed over a specific period of time and, rather than a comparison of the end points, should involve consideration of the trends in  imports over the period investigated.
26  Moreover, special 
emphasis should be placed on analysing the data  from the end of the period of investigation.27 
26. Within this context, Colombia disagrees with the complainants' contention that there is a 
general rule according to which a decrease towards the end of the period of investigation indicates 
that there has not been an absolute increase in imports.28  As the analysis should be made on a 
case-by-case basis, there could be a case in which a decline in imports 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 was in fact an absolute increase in imports, despite their 
decreasing towards the end of the period.29 
27. Colombia considers that in examining whet her the Dominican Republic made a proper and 
reasoned assessment of the increase in imports, the Panel should take into c onsideration the general 
assessment criteria described above. 
                                                                                                                                                                     
20 Appellate Body Report in Argentina – Footwear , paragraphs 129 and 130, and US – Steel 
Safeguards , paragraph 354. 
21 First written submission of the complainants, pa ragraph 243, and first written submission of the 
Dominican Republic, paragraph 326. 
22 First written submission of the complainants, paragraphs 27-284. 
23 First written submission of the Dominican Republic, paragraphs 302-343. 
24 Appellate Body Report in US – Steel Safeguards , paragraph 360. 
25 Appellate Body Report in US – Steel Safeguards , paragraphs 345 and 346. 
26 Appellate Body Reports in Argentina – Footwear , paragraph 129, and US – Steel Safeguards , 
paragraph 354. 
27 Appellate Body Reports in US – Lamb , footnote 88 to paragraph 138, and US – Steel Safeguards , 
paragraph 370. 
28 First written submission of the complainants, paragraph 247. 
29 This was the analysis made by the Panel in US – Steel Safeguards  with respect to increased imports 
of rebar, paragraphs 10.224-10.225. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-8   
  28. In addition, although in the light of the findi ngs of an increase in imports and the reasons 
given by the Dominican Republic in the Final Te chnical Report it might be concluded that the 
Dominican Republic made a reasoned assessment of that increase
30, Colombia has doubts about 
whether the analysis was properly conducted, si nce following the determination of the product 
investigated, the Dominican Republic restricted its  assessment to the cumulative increase in imports 
of tubular fabric and polypropylene bags.31  That is to say, it did not specify which of the two products 
it was whose imports accounted for the increase reve aled in the above-mentioned trends.  Therefore, 
following the line of reasoning in Section III c oncerning the close relationship between the 
determination of the product unde r investigation and its treatment in the AS, the conclusion 
concerning the increase in imports and its causal link w ith the alleged injury is inadequate inasmuch 
as it is not made clear which imports increased:  impo rts of tubular fabric or imports of polypropylene 
bags. 
29. As this analysis is linked with that described in Section III, Colombia considers that if the 
Panel were to conclude that the conditions describ ed in that section for two products to be grouped 
together in a single category and under the same sa feguard investigation were  satisfied, the conclusion 
with respect to this point should be consistent with  that determination concerning the definition of the 
product investigated.  In Colombia's opinion, the Panel could make the AS much clearer by taking the rule incorporated in Article 3.6 of the Anti-Du mping Agreement into account in the cumulative 
analysis. 
VI. DEFINITION OF THE CONCEPT OF "CRITICAL CIRCUMSTANCES" IN 
ARTICLE 6 OF THE AS 
30. The complainants consider that the Dominica n Republic has failed to show the "critical" 
nature of the circumstances invoked in justifica tion of the imposition of the provisional measure.
32  
For its part, the Dominican Republic considers that  a finding concerning this measure would not help 
to achieve a positive settlement of the dispute a nd that in any case it has explained the critical 
circumstances and assessments required to estab lish the need for the provisional measure.33  Colombia 
considers that the debate between the parties affo rds a unique opportunity for the Panel to rule on a 
question which has not yet formed the subject of panel or Appellate Body rulings, namely:  what 
should be understood by "critical circumstances" in Article 6 of the AS. 
31. In Colombia's opinion, based on a systemic interpretation of Article 6 of the AS34, the Panel 
could take into consideration as factors that make  the damage "difficult to repair" aspects of the 
economic reality of the enterprise such as:  its stoc ks, its sales, its profit margins and the price of like 
products, which should be compared with the most recent fluctuations (in the last six months) in 
imports, in order to determine whet her, if no provisional measure we re imposed, the damage would be 
difficult to repair. 
                                                      
30 Regulatory Commission on Unfair Trade Practices and Safeguard Measures, Final Technical Report, 
viewed at:  http://www.cdc.gob.do/docweb/in formes/Informe%20Tecnico%20Final%20-Publico-.%20Caso% 
20SG%20Tejido%20Tubular%20y%20Sacos%20de%20Polipropileno.pdf . 
31 First written submission of the Dominican Republic, paragraph 307. 
32 First written submission of the complainants, paragraphs 370-379. 
33 First written submission of the Dominican Republic, paragraph 409. 
34 That is to say, taking into acco unt the fact that the purpose of safe guard measures is to counteract the 
serious injury or threat of serious injury that increased imports may cause to domestic producers of like or 
directly competitive products.  Artic le XIX:1(a) of the GATT 1994.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-9 
  
  VII. NOTIFICATION AND CONSULTATION REQUIREMENTS WITH RESPECT TO 
SAFEGUARD MEASURES IN THE AS 
32. According to the complainants, the Domini can Republic imposed the definitive measure 
without making timely notification or providing Memb ers having a substantial interest in the products 
investigated with an opportunity to hold the cons ultations mentioned in Article 12.3 of the AS and 
Article XIX:2 of the GATT 1994.  Likewise accordi ng to the complainants, the Dominican Republic 
failed to afford an opportunity to obtain adequate  means of trade compensation under Article 8.1 of 
the AS and the Article XIX:2 of the GATT 1994.
35 
33. Colombia considers that the failure of a Member  to hold adequate prior consultations before 
imposing a safeguard measure is a violation of the procedure laid down in Article 12.3 of the AS.  
Moreover, the non-notification of a safeguard me asure before it is imposed is contrary to 
Article XIX:2 of the GATT 1994. 
VIII.  CONCLUSION 
34. Colombia considers that the present case ra ises important questions concerning the 
application of Article XIX of the GATT 1994 and the AS.  Although not taking a final position on all 
aspects of the substance of the dispute, Colombia re quests the Panel carefully to review the scope of 
the claims of the parties in the light of the observa tions made in this submission.  Colombia reserves 
the right to make additional comments in the section of  the first hearing with the parties and the Panel 
in which third parties are allowed to participate. 
                                                      
35 First written submission of the complainants, paragraphs 46-460. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-10   
  ANNEX B-2 
 
EXECUTIVE SUMMARY OF THE SUBMISSION OF 
THE UNITED STATES 
 
 
I. THE COMPLAINANTS PROPOSE THE WRONG APPROACH FOR 
DETERMINING CAUSATION OF SERIOUS INJURY 
1. Article 2.1 of the Safeguards Agreement states that a Member may apply a safeguard measure 
only if the Member finds that the product in question is being imported "in such increased 
quantities ... as to cause or threaten to cause serious in jury to the domestic industry".  In their first 
written submission, Costa Rica, El Salvador, Gu atemala, and Honduras (collectively "complaining 
parties") argue that, under Article 2.1, the increase  in imports of the product in question must be 
"recent enough, sudden enough, shar p enough, and significant enough" to cause serious injury to the 
domestic industry.
1  The complaining parties rely up on the Appellate Body's report in Argentina – 
Footwear (EC)  in support of their interpretation of Article 2.1.2  As shown below, and contrary to the 
complaining parties' assertion, the Safeguards Ag reement does not require such an approach to 
determine the causation of seri ous injury under Article 2.1. 
2. In United States – Steel Safeguards (AB) , the Appellate Body referenced the same passage 
from Argentina – Footwear (EC)  that the complaining parties rely upon in their first written 
submission.  The Appellate Body clarified that the statement in question was about "the entire 
investigative responsibility of the competent aut horities under the Safeguards Agreement" and that 
"whether an increase in imports is recent, sudden,  sharp and significant enough to cause or threaten 
serious injury are questions that are answered as the competent authorities proceed with the remainder 
of their analysis (i.e. their considerati on of serious injury/threat and causation)".3 
3. Consequently, there is no basis for the complaining parties' assertion that Article 2.1 of the 
Safeguards Agreement requires the co mpetent authorities to conduct a separate analysis of the volume 
of imports to determine whether it is "recent e nough, sudden enough, sharp enough, and significant 
enough" to cause serious injury to the domestic industr y before proceeding to the rest of the analysis.  
It is sufficient to find that they have increased, and then address through the remainder of the analysis 
whether those increased imports cause serious injury or threat of serious injury. 
II. THE METHOD OF PRODUCTION CAN BE RELEVANT FOR DETERMINING 
THE LIKE OR DIRECTLY COMPETITIVE PRODUCT 
4. Article 4.1(c) of the Safeguards Agreement de fines the "domestic industry" for purposes of 
the injury analysis as the "producers ... of the like or directly competitive products".  The complaining 
parties argue that the Dominican Republic incorrectly  defined the like or directly competitive product 
under Article 4.1(c) in the course of its investigation.   They argue that the competent authority for the 
Dominican Republic, the Department of Investiga tions of the Regulatory Commission for Unfair 
                                                      
1 Complaining Parties' First Written Submission, paragraphs 239-248. 
2 Complaining Parties' First Written Submission, paragraph 241. 
3 Report of the Appellate Body, 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, 
paragraph 346 (" United States – Steel Safeguards (AB) ").  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-11 
  
  Trade Practices and Protection Measures of the Do minican Republic ("DEI"), defined the like or 
directly competitive product based, in part, on th e production process used - i.e. tubular fabric and 
polypropylene sacks made from virgin resin .
4  According to the complaining parties, DEI did not treat 
polypropylene sacks made from a different production process (e.g. polypropylene sacks made from tubular fabric rather than virgin resin) as a like or directly competitive product.  The complaining 
parties contend that the exclusion of producers who did not use virgin resin from the domestic industry is inconsistent with Article 4.1(c) of the Safeguards Agreement. 
5. The United States takes no position regarding th e adequacy of the Dominican Republic's 
approach to this issue in the challenged investigation,  especially in light of the fact-intensive nature of 
the analysis.  It is helpful, however, to consider  certain observations regard ing the determination of 
like or directly competitive products  under the Safeguards Agreement. 
6. In United States – Lamb Meat (AB) , the Appellate Body concluded that while the focus of the 
like or directly competitive product inqui ry must be on the identification of the product , the 
production process may provide information on the like or directly competitive nature between 
products.
5  The Appellate Body further observed that "{w}e can ... envisage that in certain cases a 
question may arise as to whether two articles are separate products .  In that event, it may be relevant 
to inquire into the producti on processes for those products".6 
7. Indeed, one can envisage a scenar io in which the production process is highly relevant to the 
like or directly competitive nature between two products due to the qualities the process imparts on 
the product.  For example, customers may dema nd items produced via a certain method because only 
that method guarantees the requisite level of quality or  adherence to a given tolerance level.  Under 
this scenario, products manufactured according to a different process may not be like or directly 
competitive. 
III. THERE IS NO GENERAL RULE REGARDING THE IMPACT OF DECREASES IN 
IMPORTS TOWARD THE END OF THE PERIOD OF INVESTIGATION 
8. Under Article 2.1 of the Safeguards Agreement, the competent authority must determine that 
there are increased quantities of imports, either absolu te or relative to domestic production, in order to 
apply a safeguard measure.  In para graph 247 of their first written s ubmission, the complaining parties 
argue that, as a general rule, a decrease toward the e nd of the period of investigation is an indication 
that there has been no ab solute increase in imports.7  According to the complaining parties, where the 
record shows a decline in imports toward the end of  the period of investigation, only exceptional 
circumstances justify a finding by the competen t authority of increased absolute imports under 
Article 2.1.  The complaining parties purport to base their argument on the Appellate Body's report in 
United States – Steel Safeguards (AB) .  But United States – Steel Safeguards (AB)  does not support 
the complaining parties' proposed approach, and their position is otherwi se unsupportable under the 
Safeguards Agreement. 
                                                      
4 Complaining Parties' First Written Submission, paragraph 129. 
5 Report of the Appellate Body, United States – Safeguard Measures on Imports of Fresh, Chilled and 
Frozen Lamb Meat from New Zealand and Australia , WT/DS177/AB/R, WT/D S178/AB/R, adopted 
16 May 2001, paragraph 94, footnote 55 (" United States – Lamb Meat (AB) "). 
6 United States – Lamb Meat  (AB), fn. 55. 
7 Complaining Parties' First Written Submission, paragraph 129. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-12   
  9. The Safeguards Agreement does not establish any particular methodology or analytic 
framework for evaluating increased imports, nor does it place special emphasis on the level of imports 
at the end of the period of investigation.  Ar ticle 2.1 states that the competent authority must 
determine "pursuant to" the other provisions of the Safeguards Agreement th at imports are taking 
place "in such increased quantities, absolute or relative to domestic production ... as to cause or 
threaten to cause serious injury to the domestic indus try".  Article 4.2(a), in turn, states that competent 
authorities shall evaluate all relevant factors of an  "objective and quantifiable nature" having a bearing 
on the situation of the industry, including "the ra te and amount of increase in imports of the product 
concerned in absolute and relative terms."  Neither article provides any reference to the period of time 
near the end of the period of investigation, nor othe rwise indicates any special role for any particular 
period of time within the overall period of investigati on.  Accordingly, there is no textual basis in the 
Safeguards Agreement for the complaining parties' position. 
10. Moreover, in United States – Steel Safeguards (AB) , the Appellate Body has explicitly 
rejected the argument on decreased imports toward the end of the period of investigation now made 
by the complaining parties.  In that dispute, 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 investigation would necessarily prevent an investigating authority from finding that, neverthe less, products continue to be imported 'in such 
increased quantities'".
8  Indeed, for a number of the products in question in United States – Steel 
Safeguards (Panel) , the Panel found that the investigating authority's determination of imports in such 
increased quantities was consistent with Article 2.1 notwithstanding a decline in imports toward the 
end of the period of investigation.9 
11. In sum, the Appellate Body did not establish in United States – Steel Safeguards (AB)  a 
general rule regarding decreases in imports toward  the end of the period of investigation.  The 
Appellate Body found, rather, that given the magnitude of the decrease in imports toward the end of the period of investigation for certain (but not all) products in that particular dispute, the competent 
authority had not provided a reasoned and adequa te explanation of how the facts supported its 
determination that the product was "bei ng imported in … such increased quantities".
10 
12. Accordingly, the complaining parties' assertion that there is a general rule regarding the 
impact of decreases in imports toward the end of the period of investigation is erroneous. 
IV. IMPORTS EXEMPTED FROM APPLICAT ION OF THE SAFEGUARD MEASURE 
UNDER ARTICLE 9.1 ARE NOT EXEMPTED FROM THE INJURY AND CAUSATION DETERMINATIONS UNDER ARTICLE 2.1 
13. In their first written submission. the complaining parties also allege that the 
Dominican Republic violated the requirements of "parallelism" under Articles 2.1 and 2.2 of the 
                                                      
8 United States – Steel Safeguards (AB) , paragraph 367. 
9 Report of the Panel, 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, adopted 10 December 2003, as modified by the Appellate Body Report, 
WT/DS248/AB/R;  WT/DS249/AB/R;  WT/DS251/A B/R;  WT/DS252/AB/R;  WT/DS253/AB/R;  
WT/DS254/AB/R;  WT/DS258/AB/R;  WT/DS259/AB/R, paragraph 10.224 (rebar), paragraph 10.233 (welded 
pipe), and paragraph 10.253 (stainless steel bar) (" United States – Steel Safeguards (Panel) ").  The 
Appellate Body did not review the section of the Panel's report regarding increased imports of rebar, welded pipe, and stainless steel bar. 
10 United States – Steel Safeguards (AB) , paragraph 368.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-13 
  
  Safeguards Agreement.
11  The principle of parallelism deri ves from the use of the same text - 
"product ... being imported" - to describe both the investigation conducted by the competent 
authorities under Article 2.1 of the Safeguards Agre ement and the authority to impose a safeguard 
measure under Article 2.2.  The Ap pellate Body explained that "{i}n view of the identity of the 
language in the two provisions, and in the absence of any contrary indication in the context, we 
believe that it is appropriate to ascribe the same  meaning to this phrase in Articles 2.1 and 2.2."12 
14. The complaining parties assert that (1) the DEI exempted imports from developing country 
Members (i.e. Mexico, Panama, Colombia, and Indon esia) from application of the safeguard measure 
under Article 9.1 of the Safeguards Agreement13, but that (2) the DEI included imports from these 
countries in its analysis of injury and causation under Article 2.1.14  According to the complaining 
parties, the fact that imports from these four c ountries were exempted from the application of the 
safeguard measure, but included in the injury and causation analysis, violates the requirements of 
parallelism between analysis of injury and applica tion of the safeguard measure.  The complaining 
parties' argument is fatally flawed, however, because it compares Article 2.1 of the Safeguards Agreement with Article 9.1, which is not  included in the parallelism requirement. 
15. Article 9.1 of the Safeguards Agreem ent states that "{s}afeguard measures shall not be 
applied  against a product originating in a developing c ountry Member as long as its share of imports 
of the product concerned in the importing Memb er 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".
15  Thus, while Article 9.1 acts as an 
exception to the obligation under Article 2.2 of  the Safeguards Agreement to apply safeguard 
measures to "a product being imported regardless of  its source", it does not create an exception from 
the obligation under Article 2.1 to reach a determinati on with regard to all of the product.  Assuming 
that the Dominican Republic found that each of the four countries accounts for less than 3 per cent of 
total imports and that it also found that the four  countries collectively (and any other developing 
countries that individually account for less than 3 per cent of total imports) do not account for more than 9 per cent of total imports, there is no suppor t in the text of the Safeguards Agreement for the 
complaining parties' argument that exemption from application of the safeguard measure for imports from developing countries under Article 9.1 also n ecessitates exclusion from the injury and causation 
analysis under Article 2.1. 
16. Indeed, the Panel in Argentina – Footwear (Panel)  affirmed that an exemption from 
application of the measure pursuant to Article 9.1 of the Safeguards Agreement does not mandate 
exclusion from the analysis under Article 2.1.  The Pa nel observed that "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 effects of those imports from 
developing countries ".
16  In deciding not to extend the exemption from application of the safeguard 
measure to the injury and causation anal ysis, the Panel reasoned "that where the 
                                                      
11 Complaining Parties' First Written Submission, paragraph 449. 
12 Report of the Appellate Body, United States – Definitive Safeguard Measures on Imports of Wheat 
Gluten from the European Communities , WT/DS166/AB/R, adopted 19 January 2001, paragraph 96 
("United States – Wheat Gluten (AB) "). 
13 See Complaining Parties' First Wr itten Submission, paragraph 54. 
14 Complaining Parties' First Written Submission, paragraph 446. 
15 Emphasis added. 
16 Report of the Panel, Argentina – Safeguard Measures on Imports of Footwear , WT/DS121/R, 
adopted 12 January 2000, as modified by the Appellate Body Report, WT/DS121, paragraph 8.85 (" Argentina – 
Footwear (Panel) ") (emphasis added). WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-14   
  Safeguards Agreement provides for an exception it does so in clear and explicit terms" and that no 
such exemption was provided for in Article 2.1. 
17. Accordingly, there is no basis for the complaining parties' assertion that the requirements of 
parallelism under Articles 2.1 and 2. 2 of the Safeguards Agreement apply to imports exempted from 
application of the safeguard measu re by operation of Article 9.1.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-15 
  
  ANNEX B-3 
 
SUBMISSION OF NICARAGUA 
 
 
I. INTRODUCTION 
1. Nicaragua welcomes the opportunity to present its views in the proceedings initiated by 
Costa Rica, El Salvador, Guatemala and Hondur as ("the complainants") with respect to the 
consistency of the provisional safeguard measure a nd the definitive safeguard measure imposed by the 
Dominican Republic on imports of polypropyle ne bags and tubular fabric, classified under 
subheadings 5407.20.20 and 6305.33.90 of the Do minican Republic Tariff, with the General 
Agreement on Tariffs and Trade 1994 ("GATT") and the Agreement on Safeguards ("AS") . 
2. Nicaragua has decided to participate as a third party in this dispute because of its systemic 
interest in the correct interpretation of the provisions of the GATT 1994 and the Agreement on 
Safeguards , as well as in the correct application of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes ("DSU") . 
3. As a general matter, Nicaragua is of the view  that the safeguard mechanism should only be 
relied upon in exceptional circumstances and thus in emergency  situations only, as is made clear by 
the title of Article XIX of the GATT 1994.  In the A ppellate Body's words, "Article XIX is clearly, 
and in every way, an extraordinary remedy".
1  It should only be invoked when all of the strict 
requirements set out in WTO law have been fulfille d, in particular because reliance on the safeguard 
mechanism interferes with the fair conduct of trade performed by competitive exporters. 
4. Nicaragua will limit its submission to the Domi nican Republic's request for a preliminary 
ruling by the Panel ("Request") and to the issue of failure to comply with the requirement of 
parallelism of the measures at issue, and reserves its right to comment at the third party session on 
other issues of legal interpretation which it considers to be of particular interest. 
II. REQUEST BY THE DOMINICAN REPUBLIC FOR A PRELIMINARY RULING ON 
THE NON-APPLICABILITY OF ARTI CLE XIX OF THE GATT 1994 AND THE 
AGREEMENT ON SAFEGUARDS 
5. The Dominican Republic has requested the Pa nel to issue a preliminary ruling on the 
non-applicability of Article XIX of the Genera l Agreement on Tariffs and Trade 1994 ("GATT") and 
the Agreement on Safeguards ("AS") with respect to the meas ures at issue in this dispute. 
                                                      
1 Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy 
Products , AB-1999-8, WT/DS98/AB/R, 14 December 1999, paragraph 86 (" Korea – Dairy ");  Appellate Body 
Report, Argentina – Safeguard Measures on Imports of Footwear , AB-1999-7, WT/DS121/AB/R, 
14 December 1999, paragraph 93 (" Argentina – Footwear "). WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-16   
  6. In support of its Request, the Dominican Republic relies, inter alia , on the following claims 
and assertions: 
 Paragraphs 37 and 38, in which it claims th at the legal provision in GATT Article XIX: 
 
"is worded conditionally and cons ists of two parts:  a first part establishing a series of 
conditions ("If ... any product is being im ported ... in such increased quantities...") 
that must be met in order that a WTO Member may take the course of action 
described in the second part (the ... part y shall be free ...").  The remainder of 
Article XIX sets forth a series of procedural requirements and disciplines that must be observed in the event that such a measure  is adopted.  In other words, if the 
conditions in the first part are satisfied, the WTO Member is authorized under the 
preceding provision to adopt the course of action outlined in the second part, 
provided that it complies with the disciplines and procedural requirements contained 
in the remainder of Article XIX.  If the firs t part is not fulfilled, no such authorization 
will exist. 
Conversely, if the course of action described in the second part of Article XIX:1(a) of 
the GATT is not adopted, there is no need to meet the conditions set out at the beginning of this provision or to comply with the disciplines and procedural 
requirements in the remainder of Article XIX.  The course of action which may, or 
may not, be authorized is to suspend the oblig ation, in whole or in part, in respect of 
the product, or to withdraw or modify the concession." 
 Paragraphs 39 and 40, in which it asserts that: 
 
"The course of action adopted by the Dominican Republic through the measures at 
issue clearly does not constitute any of th e actions that may be authorized under 
Article XIX of the GATT, because neither of the two measures, preliminary or definitive, nor the underlying investigation in volved a suspension, in whole or in part, 
of the obligations in respect of such pr oduct.  Nor was there any modification or 
withdrawal of the concession." 
"Given that the measures challenged by  the complainants make no use of the 
authorization established in the last pa rt of Article XIX:1(a), the conditions, 
disciplines and procedural requirements established in the Article do not apply to the measures in question." 
 Paragraph 46, in which it c oncludes with the assertion that: 
 
"the Dominican Republic has not suspended an obligation, in whole or in part, nor has it modified or withdrawn a concessi on through the measures challenged by the 
complainants.  Hence, Article XIX of the GATT does not apply to the measures challenged by the complainants."  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-17 
  
   Paragraphs 47 and 48, in whic h it claims and concludes that: 
 
"As stated in Article I of the AS: 
"This Agreement establishes rules for the a pplication of safeguard measures which 
shall be understood to mean those meas ures provided for in Article XIX of 
GATT 1994. 
Given that the measures at issue did not consist of any of those envisaged in 
Article XIX of the GATT, as explained above in the light of the ordinary meaning of 
the terms of Article XIX and its object and purpose, the rules established in the AS do not apply." 
7. In order to justify the above, the Dominican Re public applies the definitive measure as an 
alternative duty to the MFN tariff, and this is not a measure that would have been provided for in the 
country's Schedule of Concessions, presumably in  order to circumvent its WTO obligations. 
8. Nicaragua submits that the Request of the Dominican Republic does not find support in, and 
is rather contrary to, Article XIX of the General Ag reement on Tariffs and Trade 1994  and the 
Agreement on Safeguards  and unduly impairs the rights conferred upon Members by the 
WTO Agreement .  Accordingly, it respectfully requests that  the Panel reject the Dominican Republic's 
request. 
9. Moreover, we consider that the sui generis  application of the definitive safeguard measure by 
the Dominican Republic undermines the security and pr edictability of the multilateral trading system 
and that these should be assured by the WTO dispute settlement system. 
III. FAILURE TO COMPLY WITH THE REQUIREMENT OF PARALLELISM OF THE 
MEASURES AT ISSUE 
10. Nicaragua agrees with the complainants th at, although Mexico, Panama, Colombia and 
Indonesia are excluded from the scope of the provisi onal and definitive safegua rd measures imposed 
by the Dominican Republic on imports of polypropyle ne bags and tubular fabric, classified under 
subheadings 5407.20.20, 6305.33.10 and 6305.33.90 of the Tariff of the Dominican Republic, the investigating authority of the Dominican Republic , i.e. the Regulatory Commission on Unfair Trade 
Practices and Safeguard Measures of the Dominica n Republic, failed to conduct a new analysis of 
increased imports, the alleged serious injury and causality.  Neither the reports nor the preliminary 
and final resolutions gave any r easons as to why it was not necessary to observe parallelism between 
the scope of the provisional and definitive measur es and the scope of the imports under investigation. 
11. We consider that the Appellate Body's statement in US – Line Pipe  applies in this regard:  
... "establish[ing] explicitly" implies that the competent authorities must provide a " reasoned and 
adequate explanation  of how the facts support their determination".
1  "… To be explicit, a statement 
must express distinctly all that is meant;  it must leave nothing merely implied or suggested;  it must be clear and unambiguous."
2 
                                                      
1 Appellate Body Report, US – Line Pipe  (WT/DS202/AB/R), paragraph 181. 
2 Ibid., paragraph 194. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-18   
  ANNEX B-4 
 
EXECUTIVE SUMMARY OF THE SUBMISSION OF PANAMA 
 
 
I. INTRODUCTION 
1. Panama intervenes in this dispute because it cons iders that the definitive safeguard measure of 
the order of thirty-eight per cent (38%) ad valorem  imposed by the Dominican Republic on imports of 
tubular fabric and polypropylene bags, classified under subheadings 5407.20. 20 and 6305.33.90 of the 
Fourth Amendment to the Dominican Republic's Cust oms Tariff, is inconsistent with the Agreement 
on Safeguards (AS) of the World Trade Organization (WTO). 
2. The Dominican Republic failed to consider importa nt elements of procedure set forth in the 
AS;  the obligation stipulated in Articles 12.3 of the AS and XIX:2 of the GATT to give timely notice 
and hold prior consultati ons with Members having a substantial interest in the measure was not 
fulfilled, nor were opportunities provided to obtai n adequate means of trade compensation, as 
established in Articles 8.1 of the AS and XIX:2 of the GATT. 
3. Panama also considers that ther e are flaws in the investigation conducted by the Investigating 
Authority of the Dominican Republic, particular ly in the approaches to the following:  
(i) determination of the domestic industry;  (ii) establishment of the existence of unforeseen 
developments that may have caused injury to the dom estic industry;  (iii) determination of increased 
imports;  (iv) determination of injury;  and (v) cau sal link between the imports and injury, as will be 
discussed below. 
II. NO OPPORTUNITIES WERE PROVIDED FOR PRIOR CONSULTATIONS AND 
REACHING AN UNDERSTANDING ON TRADE COMPENSATION 
4. The Dominican Republic initiated a safeguard s procedure, which was notified to the 
Committee on Safeguards pursuant to Article 12.1(a) of the AS
1, without any opportunity being 
provided for prior consultations, as stipulated in Ar ticle 12.3 of the AS, with a view to reaching an 
agreement on trade compensation as required by Article 8.1. 
5. The Dominican Republic failed to meet the ob ligation to notify the definitive safeguard 
measure in a timely fashion so as to allow Members ha ving a substantial interest in the matter to hold 
prior consultations, as provided for in Article 12.3 of the AS. 
III. INCONSISTENCY IN THE DEFINITION OF DOMESTIC INDUSTRY 
6. The Dominican Republic defined the product as bot h the input (tubular fabric) and the final 
product (polypropylene bag), indicating that both are of the same nature and that they should be 
considered as a single product.  In so doing, the Investigating Authority failed to prove in its 
investigation that the input and the final product  are directly competitive or like products, as 
established by the Appellate Body in United States – Safeguard Measures on Imports of Fresh, 
Chilled or Frozen Lamb Meat from New Zealand and Australia .  The Dominican Republic thus 
defined the domestic industry in a manner inconsis tent with Articles 4.1(c) and 2.1 of the AS. 
                                                      
1 G/SG/N/6/DOM/3 of 14 January 2010.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-19 
  
  7. As regards the domestic industry, in defining producers the Investigating Authority of the 
Dominican Republic failed to consider the provision s of the AS inasmuch as it:  (a) excluded from the 
domestic industry other producers that qualified at the same level as those assessed in the 
investigation;  and (b) for the purposes of applyi ng the safeguard measure, it included the producers of 
the inputs (tubular fabric) and the producers of the final product (polypropylene bags) without distinguishing between the two. 
IV. FAILURE TO DEMONSTRATE UNFORESEEN DEVELOPMENTS RESULTING IN 
INCREASED IMPORTS SUCH AS TO CAUSE SERIOUS INJURY 
8. There was no indication that the Investigating Authority of the Dominican Republic 
demonstrated conclusively and with sufficient evidence that unforeseen developments directly 
affecting the domestic industry had occurred, nor did it successfully demonstrate a logical connection 
between the conditions set forth in Article XI X of the GATT and those unforeseen developments. 
V. LACK OF DEMONSTRATION OF A RECENT, SUDDEN, SHARP AND 
SIGNIFICANT INCREASE IN IMPORTS 
9. There is no supporting determination in the inv estigation to show that the imports underwent 
a recent, sudden, sharp and significant increase. 
10. There is no indication, in the conclusions r eached by the Investiga ting Authority of the 
Dominican Republic at the end of the import investigation, of a demonstration that the increase in 
imports displayed the characteristics of being sudden, sharp, recent and significant, as required under 
the AS for the purposes of substantiation.  Therefore the measures imposed are, in our view, inconsistent with Articles XIX of the GATT and 2.1, 4.2(c), 6 and 11.1(a) of the AS. 
VI. LACK OF PREMISES FOR THE DETERMINATION OF SERIOUS INJURY 
11. Panama considers that the Investigating Aut hority of the Dominican Republic did not carry 
out a detailed analysis for purposes of determini ng the serious injury sustained by the domestic 
industry, nor did it produce objective and positive evidence in support of its investigation or the 
application of the safeguard measures adopted. 
12. The lack of substantiation by the Dominican Republic of the factors corroborating serious 
injury is inconsistent with Articles 4.2(a) and 2.1 of the AS. 
VII. LACK OF JUSTIFICATION OF CAUSATION 
13. The Investigating Authority of the Dominica n Republic provided no justification for the 
determination of serious injury and causation in  respect of a domestic industry that enjoys a 
favourable position;  moreover, it provided no sup porting evidence to show that the industry is 
currently being affected by the alleged increase in imports, nor did it identify other factors that might 
have affected the domestic industry and that bear no direct relation to the imports. 
14. Panama considers that in the investigation c onducted by the Investigating Authority of the 
Dominican Republic there were flaws in establishing the causal link between the allegedly unforeseen increase in imports and the alleged injury to the dom estic industry, since it was not demonstrated that 
the imports were a sufficient and necessary cause fo r the alleged serious injury sustained by the WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-20   
  domestic industry, particularly with respect to th e financial losses and alleged decline in production 
and consumption of the domestic product. 
VIII.  CONCLUSION 
15. The Panel is requested to examine the acti ons of the Investigating Authority of the 
Dominican Republic as regards compliance with the pr ocedures set forth in the AS and in particular 
the consultation procedure established in Article  12.3 in conjunction with Article 8.1 of the 
Agreement;  and to review the Dominican Republic's  failure to comply with the provisions of the 
GATT and the AS, as shown in this document. 
  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-21 
  
  ANNEX B-5 
 
SUBMISSION OF TURKEY 
 
 
I. INTRODUCTION 
1. Turkey thanks the Panel for giving the opportuni ty to present its views in the proceedings of 
the dispute.  Turkey is participating in this case because of its systemic interest in the interpretation 
and implementation of the Agreemen t on Safeguards.  Turkey would like to highlight the importance 
of imposing such measures in conformity with WTO obligations and its basic principles. 
2. In this submission, Turkey is not in the inte ntion to present an opinion on the specific factual 
context of this dispute and takes no position whatso ever as to the defence and allegations presented by 
the parties on whether the specific measure at issue is inconsistent with the subject provisions of the 
WTO Agreements.  Turkey wishes to contribute by expressing its opinion on some systemic issues 
regarding the interpretation of the prov isions of the Agreement on Safeguards. 
3. Therefore, with this submission, Turkey ai ms to contribute to the Panel's analysis by 
interpreting the relationship between two provision s of the Agreement on Safeguards;  Article 2.2 
which determines the general rule as to how safegua rd measures are to be applied and Article 9.1 
which encloses special and differential rul es to be applied to developing countries. 
II. APPLICATION OF SAFEGUARD MEASURES TO DEVELOPING COUNTRIES 
4. As is known, Article 2 of the Agreement on Safeguards determines the conditions for a 
WTO Member country to apply safeguard measures.  While paragraph 1 of this provision stipulates 
the general conditions for a member to apply a saf eguard measure, paragraph 2 of this provision 
determines that the measure to be taken shall be appl ied to all products being imported to the territory 
of that country irrespective of their source. 
 "Article 2:  Conditions 
 
1. 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 
to the domestic industry that produces like or directly competitive products. 
2. Safeguard measures shall be applied to a product being imported irrespective 
of its source." 
5. Article 2.2 sets forth an important obligati on that a safeguard measure be imposed on the 
imported product "irrespective of its source".  In other words, safeguard measures are in principle 
imposed on an MFN basis.  In this regard, safegua rd measures have to be taken in reaction to an 
increase in imports, from whatever source and not imports from a particular country. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-22   
  6. On the other hand, Article 9.1 of the Agreemen t on Safeguards offers special and differential 
treatment to developing countries.  Article  9.1 of the Agreement reads as follows: 
 "Article 9:  Developing Country Members 
 
1. Safeguard measures shall not be appl ied against a product originating in a 
developing country Member as long as its sh are 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." 
7. According to the wording of Article 9.1 of the Agreement on Safeguards, safeguard measures 
shall not be applied to a developing country Member  on the account that two conditions exist.  These 
are (i) the share of imports of a certain product originating from the developing country shall not 
exceed 3 per cent among the imports of that product by the country applying the safeguards measure 
and (ii) the amount of imports from developing count ry Members which meet the first condition shall 
account for less than 9 per cent of the total amount of imports of that certain product by the country applying the safeguard measure. 
8. On the basis of this interpretation, Article 9. 1 provides a mandatory "special and differential 
treatment" in favour of developing countries.  Tu rkey would like to emphasize that the term "shall" 
which is enclosed in Article 9.1 of the Agreem ent on Safeguards provides an obligation for Members 
to apply "special and differential treatment" to  all developing countries that meet the conditions 
provided above.  Therefore, Turkey believes that  safeguard measure shall not be applied to all 
developing countries, whose total export to that country  is below the threshold level of 3 per cent.  In 
this respect, pursuant to the Article 9.1 of the WTO Safeguard Agreement;  Turkey, as a developing 
country, shall be excluded from this measure. 
III. CONCLUSION 
9. Turkey appreciates this opportunity to present its  views to the Panel.  Turkey requests the 
Panel to review the comments stated in this subm ission, in interpreting the Agreement on Safeguards. 
  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page B-23 
  
  ANNEX B-6 
 
EXECUTIVE SUMMARY OF THE SUBMISSION OF 
THE EUROPEAN UNION 
 
 
I. APPLICABILITY OF THE AGREEMENT ON SAFEGUARDS 
1. The Complainants appear to argue, among other things, that the Agreement on Safeguards  
applies with regard to any measures which are aime d at preventing or remedying injury caused by an 
increase in imports.  For the reasons set out below, th e European Union considers that this is indeed a 
necessary condition for the application of the Agreement on Safeguards , but not a sufficient condition 
in itself. 
2. The Dominican Republic's request must be ex amined in the light of Article 1 of the 
Agreement on Safeguards .  Article 1 makes it clear that the Agreement on Safeguards  is concerned 
only with the application of measures of the type "provided for in Article XIX of GATT 1994", to the 
exclusion of any other safeguard measures. 
3. In the European Union's view, the determin ation of whether a measure belongs to the 
category of safeguard measures "provided for in Article XIX of GATT 1994" is an objective 
determination, to be made having regard to each me asure's structure and design.  The subjective intent 
of the Member applying the measure may provide a useful indication, but can never be dispositive.  
Otherwise, the applicability of the Agreement on Safeguards  would be left to the applying Member's 
own discretion. 
4. The European Union considers that a safeguard  measure is of the type "provided for in 
Article XIX of GATT 1994" where it has the following two characteristics:  (1) it purports to remedy 
injury caused by an increase in im ports;  and (2) it involves the suspension of an obligation or the 
withdrawal or modification of a concession under the GATT 1994 .  By denying the relevance of the 
second of the above-mentioned characteristics, th e Complainants fail to recognize the specific 
function of Article XIX within the GATT 1994 , which, as made clear by the last part of 
Article XIX:1(a), is to authorise emergency ac tion that would be otherwise prohibited by the 
GATT 1994 . 
5. Should the Complainants' views prevail in this dispute, any Member would ever consider in 
its interest to subject itself to the strictures of the Agreement on Safeguards  in order to take measures 
which it could, in any event, adopt without the requirements of that agreement, simply by refraining from characterizing those measures as a res ponse to an increase in injurious imports. 
6. Furthermore, the European Union is concerne d about the possible unintended consequences 
of the Complainants' interpretation.  For example,  the trade laws of many WTO Members, including 
the European Union, provide for the possibility of  suspending the tariff preferences accorded under a 
Free Trade Area ("FTA") Agreement or unilaterally as part of a GSP scheme in response to injury 
caused by an increase in the preferential imports con cerned.  Those measures are often referred to as 
"safeguard measures" under the relevant FTA agreem ents or applicable domestic laws.  But it is 
generally understood that they fall outside the scope of Article XIX of GATT 1994  because they do 
not involve the suspension of any obligation or th e withdrawal or modification of any concessions 
under the GATT 1994 . WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-24   
  7. First, in addressing the Dominican Republican's request it is relevant to consider also 
Article 11.1(a) of the Agreement on Safeguards .  The terms "shall not take or seek" indicate that the 
applicability of the obligations provided in the Agreement on Safeguards  is not conditional upon a 
Member having effectively taken a safeguard measur e of the type "provided for in Article XIX of 
GATT 1994".  The Agreement on Safeguards  governs the conduct of i nvestigations opened with a 
view to the possible imposition of a safeguard measure of the type provided for in Article XIX of GATT 1994 , even if no such measure is eventually imposed as a result of the investigation. 
8. Second, the measures at issue do involve the su spension of certain GATT obligations of the 
Dominican Republic in so far as they do not a pply with regard to all imports of like products 
originating in all WTO Members.  The Dominican  Republic has exempted from their application 
certain developing countries whose imports do not exceed  the thresholds set out in Article 9.1 of the 
Agreement on Safeguards .  This exemption involves a manifest "suspension" of the 
Dominican Republic's obligations under Article I:1 of the GATT 1994 . 
9. On the other hand, the European Union does not see merit in the Complainants' allegation that 
the measures at issue also amount to a suspensi on of the Dominican Republic's obligations under 
Article II:1(b) of the GATT 1994 .  Clearly, the intention of the Do minican authorities was to increase 
the rate of the applicable "ordinary customs duty", rather than applying "other charges or duties" on 
top of the ordinary customs duty.  Contrary to what the Complainants appear to argue, the fact that the 
measures in dispute apply in place of the pre-ex isting MFN ordinary duty, rather than cumulatively 
with that duty, does not support, but rather undermin es their claim under Article II:1(b);  and the same 
is true of their argument based on the fact that th e measures in dispute are applied in parallel with the 
pre-existing duty rate, which continues to be applicab le to imports originating in developing countries 
excluded from the scope of the measures in dispute. 
II. DEFINITIONS OF PRODUCT UNDER CONSIDERATION AND DOMESTIC 
INDUSTRY 
10. Whilst not entering into the reasons provided by the investigating authority to treat both the 
final product (i.e. polypropylene bags) and the inpu t (i.e. tubular fabric) as one single product under 
investigation, the European Union c onsiders that Article 4.1(c) of the Agreement on Safeguards  does 
not require an assessment of likeness or dir ect competition when defining the product under 
investigation. 
11. The Agreement on Safeguards  does not contain a definition of product under investigation or 
product concerned.  It addresses the application of safeguard measures to "a product" in general and 
"irrespective of its source".  The absence of a defi nition indicates the intention of the negotiators to 
leave Members with a wide discretion when defining the product concerned. 
12. The definition of the product concerned serves as the basis for determining which products 
and producers should be taken into account as the relevant output for the purposes of defining the 
domestic industry.  In this respect, Article 4.1(c) requires that "domestic industry" is composed of 
producers of the like or directly competitive domest ic products.  The concept of likeness or direct 
competition is relevant to maintain the paralle lism between the product under investigation and the 
like or directly competitive domestic products. 
13. The European Union considers that in US – Lamb  the Appellate Body did not conclude that 
there are limits in the definition of the product con cerned.  In that case the Appellate Body noted that, 
under Article 4.1(c) of the Agreement on Safeguards , input products can only be included in defining  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
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 WT/DS418/R/Add.1 
 Page B-25 
  
  the "domestic industry" if they are "like or direc tly competitive" with the end-products.  In this 
respect, the European Union agrees that the para llelism between the product concerned and the like or 
directly competitive domestic products that conform to the domestic industry is broken if inputs are 
not like or in direct competition with the product concerned.  However, in a case where the product 
concerned is composed of both inputs and the final product, the European Union does not see any 
obstacle in the Agreement on Safeguards  to include both inputs and the final products as the like or 
directly competitive domestic products for the purpose of defining domestic industry. 
14. Consequently, the European Union considers that insofar as the parallelism between the 
product under investigation (including both inputs a nd the final product) and the like or directly 
competitive domestic products (including both inputs  and the final product) is maintained, the 
definition of domestic industry will conform to Article 4.1(c) of the Agreement on Safeguards , 
without the need to establish that both inputs an d the final product are like or directly competitive 
products. 
15. In the present case it would appear that there was no parallelism if the domestic products were 
limited to tubular fabric and polypropylene bags  made out of raw resin, whereas the product under 
investigation covered tubular fabric  and polypropylene bags regardless of whether they were made out 
of raw resin.  Indeed, if the final products are iden tical or directly competitive regardless of their 
production process, then producers of those produc ts cannot be excluded from the definition of 
domestic industry. 
16. Moreover, the European Union observes that several domestic producers were excluded from 
the definition of domestic industry because they were themselves importers of the product under 
investigation (i.e. the input, tubular fabric).  It  would appear that under Article 4.1(c) of the 
Agreement on Safeguards , in order to consider whether a company is a "producer" of the like or 
directly competitive product which should be incl uded in the definition of domestic industry, the 
focus lies on the essential nature of the business activ ities of a given enterprise, as manufacturing an 
article or bringing a thing into existence.  If th e company concerned is merely an importer of the 
product under investigation, it would not qualify as a "producer" and then it can be excluded from the 
definition of domestic industry.  In any event, in  a situation where the company imports 100 per cent 
of the input covered by the definition of the pr oduct under investigation but then produces the final 
product covered by the same definition, it would app ear difficult to conclude that such a company is 
not a producer of the like or directly competitive product. 
III. UNFORESEEN DEVELOPMENTS 
17. Contrary to the suggestions made by the Do minican Republic, the Appellate Body has spoken 
unambiguously on this issue.  In both Argentina – Footwear Safeguard  and Korea – Dairy Safeguard  
the Appellate Body reversed the panel's findings to the effect that the "unforeseen developments" 
clause in Article XIX:1(a) of the GATT 1994  imposes no additional obligations upon Members.  In US 
– Lamb  the Appellate Body confirmed the above findi ngs and went out to rule that that the 
demonstration of "unforeseen devel opments" must be made before imposing the safeguard measures. 
18. The Appellate Body has clarified that, alt hough its reports are not binding, except with 
respect to resolving the particular dispute between the parties, subsequent panels "are not free to 
disregard the legal interpretations and the ratio decidendi  contained in previous Appellate Body 
reports that have been adopted by the DSB". WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page B-26   
  19. The Dominican Republic has not invoked any "c ogent reason" why the Panel should depart 
from the legal interpretations made  by the Appellate Body in the re ports cited above.  Rather, the 
Dominican Republic bases its contention that the "unforeseen developments" clause is not legally 
binding on the allegation that the Agreement on Safeguard  "constitutes an exhaustive agreement" and 
does not provide for such an obligation.  In view of  this, the European Union considers that the Panel 
need not engage in a detailed examination of this  argument, which could be summarily dismissed by 
referring to the existing case law of the Appellate Body. 
20. The European Union notes that one of the " unforeseen developments" now mentioned by the 
Dominican Republic is the increase in duty free imports under certain FTA agreements with other 
Central American and North American countries.  However, even assuming that such an increase 
could be regarded as a genuine "unforeseeable deve lopment", it is plain that it would not be the 
"effect" of the obligations incurred by the Dominican Republic under the GATT 1994 , as required by 
Article XIX:1(a).  Rather, it would be the "effect" of obligations incurred by the Dominican Republic 
under the FTA agreements in question.  Therefore, that development could not provide a basis for the 
imposition of safeguard measur es under Article XIX of the GATT 1994  and the Agreement on 
Safeguards .  Instead, that development should have b een addressed by the imposition of bilateral 
safeguard measures withdrawing the preferential dut y-free treatment in accordance with the relevant 
provisions of each FTA agreement concerned. 
IV. CONCLUSIONS 
21. While not taking a final position on the merits of the case, the European Union requests this 
Panel to carefully review the scope of the claims in  light of the observations made in this submission. 
_______________ 
  
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 Page C-1 
  
  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/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page C-2   
  ANNEX C-1 
 
EXECUTIVE SUMMARY OF THE OP ENING ORAL STATEMENT OF 
THE COMPLAINANTS 
 
 
I. APPLICABILITY OF ARTICLE XIX OF THE GATT AND THE AS 
1. The Dominican Republic argues that Article XIX of the GATT and the AS are not applicable 
to the measures at issue since they are applied at a level belo w the bound tariff for the tariff headings 
concerned. 
2. The Dominican Republic's defence relates only to  the provisional and definitive safeguard 
measures that were imposed.  It does not touch on the investigation and the acts preceding application 
of the measure, nor does it affect the applicability of the AS and of Article XIX to the claims 
concerning notification, the conduct of  consultations and the offer of means of trade compensation, as 
provided for in Articles 8 and 12 of the AS. 
3. The Dominican Republic seeks to ignore the f act that it initiated and carried out an 
investigation procedure under the AS and Article XIX, as well as under its own domestic legislation 
on trade remedies, with a view to imposing safegua rd measures within the meaning of Article XIX 
and the AS.  This was affirmed by the Dominican Republic itself.
1 
4. The Dominican Republic justified the exclusi on of certain imports from the scope of the 
measure on the basis of Article 9.1 of the AS;  it notified the WTO Committee on Safeguards of the opening of the investigation, the adoption of the provisional measure and the adoption of the 
definitive measure and ordered notification of the first stage in the phasing out of the measure;  it 
replied to Colombia that the inves tigation and the measures at issue we re subject to the provisions of 
Article XIX and the AS;  and lastly, by means of  a press release it publicly explained that the 
investigation and the imposition of provisional and definitive measures were carried out on the basis 
of the AS and Article XIX, as well as domestic legislation on trade remedies.
2 
5. Although the measures at issue do not exceed the bound tariff of 40 per cent ad valorem , they 
consist of duties and charges other than ordina ry customs duties and they are applied in a 
discriminatory manner on imports of certain Members.  The safeguard measures therefore effectively 
suspend the Dominican Republic's obligations unde r Articles II:1(a) and II:1(b), second sentence, as 
well as under Article I:1 of the GATT regarding the MFN principle, respectively.3 
6. Any measure that exceeds what is "necessary", in magnitude or time-scale, stands in violation 
of Articles 5.1 and 7.1 of the AS, even if the measu res are not inconsistent with general obligations 
under the GATT or are higher or lower than the bound tariff.  Otherwise, if this level of 
"proportionality" between serious injury and the trad e remedy were not maintained, "legitimate" trade 
                                                      
1 Initial report, pages 4 and 5;  preliminary report, pages 5 and 6. 
2 Exhibits CEGH-17, 18, 32, RDO-1 and CEGH 24 and 25, respectively. 
3 Reply of Costa Rica, El Salvador, Guatemala and Honduras to the request for a preliminary ruling of 
the Dominican Republic, submitted on 3 May 2011, paragraphs 109-111.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page C-3 
  
  would be affected and "competition in international markets" would be limited rather than enhanced, 
which is in all respects at variance with the object and purpose of the AS.
4 
7. The action taken by other panels and by the Appellate Body in two safeguard disputes, 
Argentina – Footwear  and Korea – Dairy , implicitly confirms that the applicability of Article XIX 
and of the AS does not depend on whether the safe guards are higher or lower than the respective 
bound tariffs. 
II. PRELIMINARY OBJECTIONS CONCERNING THE TERMS OF REFERENCE 
8. Set out below are our replies to the objections to the complaints relating to Articles I:1, II:1(a) 
and II:1(b) of the GATT.  Our second written subm ission will give a detailed reply to the other 
preliminary objections. 
(i) Alleged withdrawal of certain complaints 
 9. The Dominican Republic contends that the comp laining parties have decided to withdraw 
various complaints, including those relating to Article I:1 of the GATT and Articles II:1(a) and II:1(b) 
of the GATT, since, in its opinion, these were not developed in the first submission of the 
complainants.
5 
10. The Dominican Republic's request is invalid sin ce the complaints it challenges were set out in 
our first written submission and they were subsequent ly developed in greater detail in our reply to the 
Dominican Republic's request for a preliminary ruling.  The Appellate Body has indicated that there is 
no obligation to set out all claims in the first written submission to the Panel.6 
(ii) Objection concerning complaints not co ntained in the request for consultations 
 
11. The Dominican Republic also argues that certain complaints contained in our request for the 
establishment of a Panel should remain outside the terms of reference of the Panel, being "new 
complaints" because they are not include d in the request for consultations.7 
12. The Appellate Body has firmly upheld the view  that the legal basis for the request for 
consultations and the basis of the panel request s hould not necessarily be identical, provided that the 
latter can reasonably be inferred from the basis for the request for consultations.8  The Panel in China 
– Audiovisual Products  concluded that it is important to analyse the relationship between the 
obligations imposed by the provisions cited in the request for consultations and those cited in the 
panel request.9 
                                                      
4 Preamble of the AS, third paragraph. 
5 First written submission of the Dominican Republic, paragraph 86. 
6 Appellate Body Report, EC – Bananas , paragraph 145;  see also Panel Report, China – Audiovisual 
Products . 
7 First written submission of the Dominican Republic, paragraphs 87-89. 
8 Appellate Body Report, Mexico – Rice , paragraph 138;  Appellate Body Report, Brazil – Aircraft , 
paragraph 132;  Appellate Body Report, US – Cotton , paragraph 293;  Panel Report, China – Audiovisual 
Products , paragraph 7.121;  Panel Report, US – Poultry , paragraph 7.46;  Panel Report, EC – Fasteners , 
paragraph 7.24. 
9 Panel Report, China – Audiovisual Products , paragraph 7.121. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page C-4   
  13. In view of the possibility that the Dominican Re public might seek to argue in its defence that 
the measure is not a safeguard measure, the complain ants made clear in their request for consultations 
their intention to reserve the right to raise other claims under the GATT.  This emerges from the 
penultimate paragraph of the request for consultations.
10  It is appropriate to point out that, during the 
consultations, there was an exchange of inform ation on the discriminatory exclusion of certain 
imports from the scope of application of the measur es, as well as on the nature of the measures in the 
context of the legal system in force in the Dominican Republic. 
14. The complaint relating to the most-favoured-na tion obligation is based on Article I:1 of the 
GATT, which is closely linked to Article 2.2 of the AS inasmuch as both articles deal with the 
most-favoured-nation principle.  Article 2.2 of the AS is expressly included in the request for consultations.
11  The complaints concerning the nature of  the duties adopted as import charges are 
based on Articles II:1(a) and II:1(b) of the GATT, which are linked to Article XIX itself of the GATT.  
The tariff concessions referred to in Article XIX are subject "to the obligations contained in Article II 
of the GATT 1994".12 
15. In addition, the precedent from US – Poultry  is applicable13, given that, inasmuch as the 
request for consultations contains a clear reserva tion regarding the right to raise other matters under 
the GATT 1994 and on the basis of the discussions he ld during the consultations, the complainants 
reworded their complaints and included in their pa nel request arguments under Articles I and II of the 
GATT. 
16. By reason of the foregoing, this Panel should conc lude that the complaints under Articles I:1, 
II:1(a) and II:1(b) of the GATT fall within the terms of reference of this dispute. 
III. CLAIM RELATING TO UNFORESEEN DEVELOPMENTS AND THE EFFECT OF 
THE OBLIGATIONS INCURRED UNDER THE GATT 
17. The Dominican Republic failed to issue ade quate or reasoned findings, conclusions or 
explanations to demonstrate unforeseen developments.14  In response to this claim, the 
Dominican Republic questions the binding nature of  Article XIX:1(a) with regard to unforeseen 
developments. 
18. The obligation to consider unforeseen developmen ts is an issue that was decided by the 
Appellate Body, in conclusive and unequivocal terms, in 1999 in the Argentina – Footwear  and Korea 
– Dairy disputes.  The Dominican Republic has presente d no compelling reason to  justify deviating 
from the Appellate Body's viewpoint.15 
19. The Dominican Republic's investigating authority its elf, in its technical reports, stated that it 
agreed with the Appellate Body's juri sprudence on this specific legal point.16  More important is the 
recognition of the mandatory nature of the unforeseen developments criterion, which is set out in the 
Dominican Republic's legislation, and more specifi cally in Articles 239 and 247 of the Regulation to 
Law No. 1-02. 
                                                      
10 Documents WT/DS415/1, WT/DS4 16/1, WT/DS417/1, WT/DS418/1. 
11 See paragraph "(g)" of the legal basis of the request for consultations. 
12 Appellate Body Report, Argentina – Footwear , paragraph 91. 
13 Panel Report, US – Poultry , paragraph 7.46. 
14 First written submission of the complainants, paragraphs 207 to 226. 
15 Appellate Body Report, US – Stainless Steel (Mexico) , paragraph 160. 
16 Final Report, page 65;  Preliminary Report, page 69.  WT/DS415/R/Add.1 
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 WT/DS418/R/Add.1 
 Page C-5 
  
  20. In its first written submission, the Domini can Republic cites various passages from the 
preliminary and final technical reports which a llegedly contain the Commission's conclusions on 
unforeseen developments.
17  However, these passages merely constitute references  to the arguments 
of FERSAN on events that could  constitute unforeseen developments .  They are not reasoned and 
adequate conclusions issued by the investigating auth ority.  In addition, the explanations put forward 
by the Dominican Republic in its first written submission are clearly ex post  explanations which 
cannot cure the lack of findings in th e corresponding determinations or reports.18 
IV. CLAIM RELATING TO THE DOMESTIC INDUSTRY 
21. In its submission, the Dominican Republic conf ined itself to confirming that there were 
various questions concerning the cons ideration of fabric and bags as th e same product, and that it even 
had doubts itself on that subject and addressed a letter to Customs, and the latter confirmed that they are two different products.  However, it misrepresents our claim and argues that there is no 
substantive obligation governing the defin ition of the product under investigation. 
22. What we have claimed in the context of the definition of the domestic industry is that no 
paragraph in the reports or resolutions reflects the adequate and reasoned findings and conclusions 
required under Articles 3.1 and 4.2(c) on a subject  as fundamental, important and relevant as the 
definition of the product under i nvestigation for purposes of defini ng the domestic industry, in the 
light of the various factual questions raised in the investigation, which were even taken up by the DEI 
and the Commission in the public reports. 
23. The Dominican Republic arbitrarily defined like or directly competitive domestic products as 
products produced from resin , without giving an objective reason for so doing.  However, the product  
under investigation  included fabric and bags, irrespective of the way in which they were produced, 
whether from resin or from fabric or from some ot her phase of the production process.  Nor is there 
any justification for excluding domestic producer s of the like or directly competitive domestic 
product, such as the firms FIDECA and TITAN. 
24. In short, the domestic industry was defined in a manner such as to be adapted solely and 
exclusively to the profile of the applicant, FER SAN, so that the latter is the only enterprise 
constituting the domestic industry.  This was done through the use of arbitrary or inadequate 
definitions and criteria which do not conform to the requirements of Articles 2.1, 4.1(c), 3.1, 
last sentence, and 4.2(c) of the AS. 
V. CLAIM RELATING TO THE ALLEGED INCREASE IN IMPORTS 
25. The Dominican Republic acknowledges that there was no finding with regard to a relative 
increase in imports compared with domestic produc tion, despite the fact that the final resolution 
determined that imports had increased  "in absolute and relative terms".19 
26. Regarding the absolute increase in impor ts, the complainants note that the 
Dominican Republic's defence, which seeks to play down the importance of the drop in imports 
towards the end of the period of investigation, applies only to the final determination, but not to the 
                                                      
17 First written submission of the Dominican Republic, paragraphs 285-295. 
18 Panel Report, Chile – Price Bands , paragraph 7.147 and footnote 705.  Appellate Body Report, US – 
Lamb , paragraph 72. 
19 Definitive resolution, first article. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page C-6   
  preliminary determination.  The Dominican Repub lic cannot, therefore, argue that this alleged 
increase was taken into consideration in order to justify the conclusion concerning increased imports 
in the preliminary determination. 
27. As regards the final determination, the Domini can Republic claims that it explained that the 
decrease in imports towards the end of the period of investigation was transitory and incidental.  The 
Dominican Republic acknowledges that the decrease towards the end of the period of investigation 
would have been due to the overa ll slowdown in the Dominican economy.
20  However, it does not 
follow from this assertion that the decrease in impor ts was characterized as transitory and incidental 
or that there was an explanation of the reasons for considering that the decrease in imports had those 
characteristics, as is now argued ex post . 
28. Finally, the Dominican Republic acknowledges that  the evaluation of the rate of increase in 
imports consisted of an "end to end" analysis of the period of investigation, and was based on figures 
showing the percentage variation of imports from year to year.21  As can be seen from the 
determinations, there are no findings regarding th e rate of imports.  The "rate" is a specific 
requirement of Article 4.2(a) of the AS. 
VI. CLAIM RELATING TO THE ALLEGED SERIOUS INJURY 
29. The preliminary and final determinations of ser ious injury go beyond the definitions and basic 
criteria contained in Article XIX and the AS.  Leav ing aside the erroneous de finition of the domestic 
industry, there are fundamental errors of methodology. 
30. For example, the determinations are based on information about "the  volumes of production 
of the product investigated, assuming it to be a single product, i.e. finished bags".22  Despite the fact 
that the like or directly competitive product was de fined as tubular fabric and polypropylene bags, the 
Dominican Republic evaluated only production perf ormance for finished bags, and no analogous 
evaluation was carried out on production performance, in volume terms, in the other segment making 
up the domestic industry, i.e. the production of tubular fabric. 
31. There are two different segments:  produc tion of tubular fabric and production of 
polypropylene bags.  The evidence shows that not all tubular fabric production was destined for the 
production of finished bags.  Alt hough part of this production was "assumed" to be an input for 
finished bags, another part was destined for th e commercial market (e.g. sales to FIDECA) and a 
further part went into increasing FERSAN's stocks .  The production outcomes for one or the other 
product are not therefore necessarily the same. 
32. The Dominican Republic presents evidence to est ablish that it conducted a joint analysis of 
the indicators relating to tubular fabric and polyp ropylene bags because it evaluated aggregate 
information from the Bags Division  of FERSAN.23  However, the information from the Bags Division 
includes the production of other products which are not like or directly competitive products (bags 
made of netting, rope or string), and which are d estined for both the domestic and the international 
market.24  Moreover, with regard to stocks, the inform ation covers raw material and inputs which do 
                                                      
20 First written submission of the Dominican Republic, paragraph 318. 
21 First written submission of the Dominican Republic, paragraph 328. 
22 Initial report, page 14. 
23 First written submission of the Dominican Republic, paragraph 358. 
24 Exhibits RDO-13, RDO-14, RDO-15.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page C-7 
  
  not form part of the like or directly competitiv e product.  This erroneous methodological basis 
invalidates the evaluation that was made of ear nings and losses, stocks, cash flows and production 
value. 
33. As regards the discrepancy between the factual findings relating to production and the 
conclusions of the DEI and the Commissi on, the Dominican Republic provides an ex post  explanation 
of the way in which the fall in production is to be understood. 
VI. CLAIM RELATING TO THE ALLEGED CAUSAL LINK 
34. Causation:  The complainants contend th at the Commission determined the causal link 
between imports and serious injury to the domestic industry inconsistently with Article 4.2(b), among 
other provisions of the AS, and Article XIX:1(a) of the GATT.25 
35. The replies provided by the Dominican Republic in its first written submission indicate, in 
summary, that the causation analysis is composed of  two elements:  (i) two paragraphs of the final 
resolution (more specifically, paragraphs 37 and 38)26;  and (ii) the serious injury analyses contained 
in the preliminary and definitive technical reports.27 
36. Regarding the first element, the two paragraphs  of the final resolution are not sufficient to 
establish a causal relationship, since they consist of  new assertions lacking analytical substantiation in 
the technical reports.28  Regarding the second element, the existence of serious injury is only a 
necessary premise for the causation analysis, but it is not sufficient to establish a causal link. 
37. Non-attribution:  The complainants also cont end that the Dominican Republic failed to carry 
out the non-attribution analysis required by Article 4. 2(b) of the AS, which consists in separating the 
harmful effects of factors other than increased  inputs which are the cause of serious injury.29 
38. In reply, the Dominican Republic puts forward ex post  explanations and offers arguments 
regarding those factors other than increased imports which, in the complainan ts' opinion, should have 
been taken into account on examining the causes of financial losses, increased stocks and reduced 
cash flows, as well as the in jury caused by domestic competitors.  Even these ex post  arguments are 
insufficient to justify the lack of a non-attribution analysis. 
VII. CLAIM RELATING TO THE LACK OF PARALLELISM 
39. The Dominican Republic failed to respect the requi rement of parallelism since, despite having 
excluded imports from certain countries from the appli cation of the measures, those imports were in 
fact included in the evaluation of increased imports, serious injury and causation.30 
40. The Dominican Republic states that the ex clusion of imports from Mexico, Panama, 
Colombia and Indonesia from the application of the measures was in conformity with Article 9.1 of 
the AS, which permits the exclusion of developing countries with less than 3 per cent import share.31  
                                                      
25 First written submission of the complainants, paragraphs 380-404. 
26 First written submission of the Dominican Republic, paragraph 441. 
27 First written submission of the Dominican Repub lic, paragraphs 439 and 442 and footnote 341. 
28 First written submission of the complainants, paragraph 395. 
29 First written submission of the complainants, paragraphs 410-433. 
30 First written submission of the complainants, paragraphs 436-450. 
31 First written submission of the Dominican Republic, paragraphs 472-474. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page C-8   
  The parallelism obligation is enforceable irrespective  of the reasons why the Member applying the 
safeguard has decided to exclude such imports.  Th e Dominican Republic also submits that "[e]ven if 
an investigation excluding imports from Mexico, Panama, Columbia and I ndonesia were conducted, 
the conclusions concerning increased imports woul d not change, given the negligible share of 
1.2 per cent [of those imports] during the period of investigation".
32 This line of argument has already 
been presented and rejected in US – Steel .33 
VIII.  INCONSISTENCY WITH ARTICLES XIX: 2 OF THE GATT AND ARTICLES 8.1 
AND 12.3 OF THE AS 
41. The Dominican Republic accepts that its notification was in fact made three days after the 
adoption  of the measure34 and seeks to justify this action by referring to the English and 
French versions of the GATT, which indicate that the notification must be made prior to the application  of the measure, and not prior to its adoption , as stated in the Spanish version.  We 
observe, however, that the explanatory note c ontained in paragraph 2(c)(i) of the GATT 1994 
explicitly provides that "[t]he text of GATT 1994 sha ll be authentic in English, French and Spanish". 
42. Even on the interpretation of the Dominican  Republic regarding the obligation under 
Article XIX:2 of the GATT, the complainants  submit that the Dominican Republic acted 
inconsistently with that provision, since the WTO Members were notified on 18 October 2010, i.e. on 
the same day  as the entry into force of the measure.  Moreover, the Dominican Republic claims to 
treat (i) the participation of the complaining coun tries as interested parties in the context of the 
safeguard investigation under the national jurisdiction of the Dominican Republic on the same basis 
as (ii) the conduct of multilateral consultations as provided for by Article 12.3 of the AS. 
IX. CLAIMS UNDER THE GATT 
43. In the event that it is determined that the provisional and definitive measures are not subject 
to Article XIX and to the AS, the Panel should fi nd that the provisional and definitive measures are 
border measures subject to the basic disciplines of Articles I:1, II:1(a) and II:2(b) of the GATT, and that they are inconsistent with those provisions. 
44. Claims under Article I:1 of the GATT:  Accord ing to the most-favoured-nation clause, any 
measure that qualifies as an advantage, favour, priv ilege or immunity granted to imports of specific 
origin shall also be granted to imports of like pr oducts from the other WTO Members.  In this case, 
the exclusion of imports from Colombia, Indon esia, Mexico and Panama from the scope of 
application of the measures constitutes an advantage,  favour, privilege or immunity granted to imports 
of those origins. 
45. The criterion for the granting of this advantag e, favour, privilege or immunity is also 
discriminatory, even where there is compliance with the criterion that imports should not exceed 
3 per cent, by individual origin, of total imports a nd nine per cent collectively of that total, in the 
                                                      
32 First written submission of the Dominican Republic, paragraph 479. 
33 Panel report, US – Steel , paragraph 10.607. 
34 First written submission of the Dominican  Republic, paragraphs 493 and 495.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page C-9 
  
  period of investigation.
35  For example, that criterion was not applied for the purpose of excluding 
imports from Thailand, which are less than three per cent.36 
46. Claims under Articles II:1(a) and II:1(b), second sentence, of the GATT:  the provisional and 
definitive measures consist of duties or charges other than ordinary customs duties that are applied to 
imports of polypropylene fabric and bags. 
47. Article II:1(b) prohibits the imposition of im port duties and charges other than ordinary 
customs duties.  Pursuant to the Understanding on the Interpretation of Article II:1(b) of the General 
Agreement on Tariffs and Trade 1994 , a surcharge other than an ordinary customs duty shall be 
inconsistent with Article II:1(b), second senten ce, of the GATT unless that surcharge had been 
recorded by 15 April 1994 at the latest. 
48. In the preliminary and final reports, the DEI undertook an evaluation of the most effective 
alternatives for the imposition of the measure at issu e, in which the DEI explicitly affirmed that the 
purpose was to establish a "second tariff" in addition to the applicable tariff.37  This intention to 
establish a duty different and distinguishable from the ordinary customs duty was confirmed at the 
time of establishment of the measures and their tim e-frame.  In the final resolution, the Commission 
stated that, for those countries subject to "an MFN tariff higher than the percentage of the definitive 
safeguard measure … the said MFN tariff shall apply" .  The MFN tariff in the Dominican Republic is 
the ordinary customs duty applicable to imports  that do not benefit from tariff preferences38, while 
under the final resolution, the surcharge constitutes an  alternative duty to the MFN tariff, and either 
the surcharge or the ordinary customs duty is applie d, whichever is higher.  As can be seen from the 
Customs Tariff of the Dominican Republic, that c ountry does not maintain an ordinary customs duty 
possessing the modal quality of an alternative duty.  It follows from this that the provisional and 
definitive measures impose a duty of a nature distin ct from the ordinary customs duty applicable in 
the Dominican Republic.39 
49. Pursuant to Articles 5, 6 and 7 of Tari ff Reform Law No. 146-00 (which governs the 
application of tariffs in the Dominican Republic),  ordinary customs duties or tariffs can only be 
modified by a legislative act, but not by administrative means.40  Inasmuch as the provisional and 
definitive measures were not imposed in acco rdance with the procedure provided for in 
Dominican legislation for the imposition of ordinary customs duties, the provisional and definitive 
measures do not qualify as ordinary customs duties. 
50. For all of the above reasons, the provisional a nd definitive measures qualify as other duties or 
charges within the meaning of Article II:1(b), sec ond sentence, of the GATT.  It should be mentioned 
additionally that the Dominican Republic did not r ecord in its Schedule of Concessions the possibility 
of applying measures of this nature.  Conseque ntly, the provisional and definitive measures are 
inconsistent with Article II:1(b), second senten ce, of the GATT and, by implication, with 
Article II:1(a) of the GATT. 
                                                      
35 Preliminary Resolution, paragraphs 50 and 51;  Final Resolution, paragraphs 42 and 43. 
36 Preliminary Report, Annex I;  Final Report, Annex I. 
37 Final Technical Report, page 97. 
38 Customs Tariff of the Dominican Republic, Exhibit CEGH-27. 
39 Preliminary Report, page 93;  Final Report, page 97. 
40 Tariff Reform Law No. 146-00, Exhibit CEGH-22. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
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Page C-10   
  X. CONCLUSIONS AND REQUEST FOR RECOMMENDATIONS AND 
SUGGESTIONS 
51. In addition to the request for findings and ru lings contained in our first written submission
41, 
the complainants request the Panel to issue the following findings and rulings: 
 The application of the provisional and de finitive measures excluding imports from 
specific origins is inconsistent with Article I:1 of the GATT. 
 The provisional and definitive measures c onstitute other duties and charges distinct 
from ordinary customs duties within the m eaning of Article II:1(b), second sentence, 
of the GATT and grant less favourable tr eatment than that provided for in the 
Dominican Republic's Schedule of Concessions within the meaning of Article II:1(a) 
of the GATT, for which reason both measures are inconsistent with the provisions of the GATT. 
52. Despite the fact that the comp laints concerning Articles I and II of the GATT have been 
submitted as alternatives, the applicants request the Pa nel to rule on them even if it concludes that the 
measures at issue are safeguard measures.  This is important given the possibility of an appeal for 
which the Appellate Body would need to have fact ual findings for the purpose of completing the legal 
analysis relevant to the case. 
 
                                                      
41 First written submission of the complainants, paragraph 477.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page C-11 
  
  ANNEX C-2 
 
EXECUTIVE SUMMARY OF THE OP ENING ORAL STATEMENT OF 
THE DOMINICAN REPUBLIC 
 
 1. The Dominican Republic affirms that Article XI X of the GATT and the AS, in other words, 
all the rules duly cited by the complainants in the request to hold consultations
1, in the request for the 
establishment of a panel2 and in their first written submission, do not apply to the measures at issue.  
This makes it impossible to evaluate the consiste ncy of the measures contested with the disciplines 
cited. 
2. The Dominican Republic wishes to reaffirm  the reasons why the rules cited by the 
complainants do not apply on the basis of five argume nts.  Firstly, the applicability of Article XIX of 
the GATT and the AS depends on objective criteria that  cannot be replaced by statements made by the 
Dominican authorities.  Secondly, the measures at issue are not covered by the objective applicability 
criteria in Article XIX of the GATT and the AS.  Thirdly, Article 11.1(a) of the AS does not cover action prior to the adoption of the measures contested.  Fourthly, the measures at  issue did not lead to 
suspension of Article 1:1.  Fifthly, the measur es at issue do not constitute suspension of the 
second sentence of Article II:1(b) of the GATT. 
1. The applicability of Article XIX of the GATT and the AS is not defined on the basis of 
statements by Members 
3. A large part of the arguments put forward by the complainants concerning the applicability of 
Article XIX of the GATT and the AS consisted of indicating that the measures at issue are the result 
of an investigation initiated, conducted and conc luded by the Dominican Republic on the basis of 
Law No. 1-02
3 with the Dominican authorities having cited Article XIX of the GATT and several 
provisions of the AS.4  The complaining parties also attach cons iderable weight to notifications to the 
WTO Committee on Safeguards.5 
4. Nevertheless, as stated by the Appellate Body, an  examination of applicability is an objective 
analysis of the content of the measures at issue, ra ther than on the basis of nominal aspects such as the 
statements made by the Dominican authorities.6  If it is considered that the classification of a measure 
in national law or the intention of the author ities are decisive for the purposes of classifying a 
measure, as underlined by the European Union, this would mean that WTO Members could impose 
measures that comply with their obligations  by describing them in a particular way.7 
5. The legal basis for the measures at issue, Law No.1-02, provides in Article 73 that safeguard 
measures may consist of an increase in ta riffs, in tariff quotas or maximum rates8, making 
                                                      
1 WT/DS415/1, WT/DS416/1, WT/DS417/1 and WT/DS418/1. 
2 WT/DS415/7, WT/DS416/7, WT/DS417/7 and WT/DS418/7. 
3 Exhibit RDO-11. 
4 Idem . paragraphs 43-74. 
5 Idem . paragraphs 75-82. 
6 Appellate Body Report, US – Shrimp (Thailand) , paragraph 241;  Appellate Body Report, 
US – Softwood Lumber IV , paragraph 65;  Appellate Body Report, US – Corrosion-Resistant Steel Sunset 
Review , footnote 87 to paragraph 87. 
7 See paragraph 10 of the Third Party Wr itten Submission of the European Union. 
8 Above, note 23. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page C-12   
  no reference to a suspension of obligations or th e withdrawal or modification of concessions, which 
are the objective criteria for application of Article  XIX of the GATT and the AS.  Consequently, a 
safeguard adopted under Law No. 1-02 does not n ecessarily constitute a safeguard in terms of the 
GATT or the AS. 
6. In the present case, as the Dominican Republic granted a tariff concession of 40 per cent for 
the products in question, it is free to impose a lower tariff, pursuant to Article II:1(a) of the GATT, as 
confirmed by the Appellate Body.
9  By adopting a safeguard measure pursuant to Law No. 1-02 that 
increased the tariff to 38 per cent, in GATT term s the measure consisted of an increase in the 
MFN tariff to below the bound level, a measure whic h the Dominican Republic was free to adopt.  In 
definitive, the fact that the Dominican Republic's authorities adapted their conduct to the AS and to 
Article XIX of the GATT does not imply that the co mplainants can call the measures at issue into 
question in the light of those provisions. 
7. Essentially, the Dominican Republic complied w ith a more onerous procedure than that 
imposed by the GATT.  The complainants were aw are of the nature of the measures and expressed 
doubts about the applicability of Article XIX of th e GATT prior to the adoption of the provisional 
measure.10  Nevertheless, they insisted on questioning th e measures in the light of Article XIX of the 
GATT and the AS. 
2. The measures issue do not fall within the sco pe of Article XIX of the GATT and the AS 
8. The scope of the AS is defined in Article 1 thereof, which provides that this Agreement 
establishes rules for the application of safeguard measures "which shall be understood to mean those 
measures provided for in Article XIX of GATT …".11  The material scope of Article XIX of the 
GATT is set out in paragraph 1(a) thereof.12  The form of this paragraph is conditional, the first part 
describing a series of conditions that must be verifi ed to enable the WTO Member in question to make 
use of the authorization defined in the last part of the paragraph, which provides that the Member 
"shall be free, …, and to the extent and for such tim e as may be necessary to prevent or remedy such 
injury, to suspend the obligation in whole or in  part or to withdraw or modify the concession" .  If the 
course of action defined in the last part of Article XIX:1 of the GATT is not followed, there is no need 
to meet the conditions set out at the beginning of th is provision, or to comply with the disciplines and 
procedural requirements in the remainder of Article XIX of the GATT.13 
9. Article XIX:1(a) of the GATT may authorize the total or partial suspension of an obligation 
undertaken or the withdrawal or modification of a concession.  The measures contested are based on 
Law No. 1-02 and consist of an increase in the MF N tariff up to a level lower than that bound.  In 
other words, there was no suspension of any obligation or withdrawal or modification of any concession, so Article XIX of the GATT and the AS do not apply. 
10. The context of Article XIX confirms the st atement above.  The Dominican Republic was 
entitled to adopt the measures at issue pursuant to Ar ticle II:1(a) of the GATT, so no obligation was 
suspended and there was no withdrawal or modificat ion of any concession.  If it is found that there 
                                                      
9 Appellate Body Report, Argentina – Textiles and Apparel , paragraph 46. 
10 Regulatory Commission on Unfair Trade Practices and Safeguard Measures, Preliminary Technical 
Report, page 85.  Exhibit RDO-9. 
11 AS, Article 1. 
12 Request by the Dominican Republic fo r a preliminary ruling, paragraph 37. 
13 Idem . paragraph 38.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page C-13 
  
  must be compliance with the provisions in Article XIX of the GATT and the AS even if 
no concession is withdrawn or modified, and no oblig ation is suspended, Article XIX of the GATT 
and the AS would be distinct from the series of rights and disciplines laid down in the 
WTO Agreement, contrary to the criteri a determined by the Appellate Body.
14  Considering a tariff 
increase up to a level that does not exceed the bound le vel to be a safeguard measure would make the 
GATT provisions that serve as basis meaningless. 
11. Another relevant provision in this regard, Article 11.1(c) of the AS, provides that the 
Agreement does not apply to measures which a Me mber seeks to adopt, adopts or maintains in 
accordance with other provisions in the GATT 1994, ot her than Article XIX, and the multilateral trade 
agreements contained in Annex 1A, other than the AS, or in conformity with protocols, agreements or 
conventions concluded within the framework of  the GATT 1994.  This provision reaffirms the 
non-applicability of Article XIX of the GATT and the AS to the measures at issue, which are in 
accordance with Article II:1(a) of the GATT. 
12. Moreover, Article 8.1 of the AS provides the following: 
"A Member proposing to apply a safeguard measure or seeking an extension of a 
safeguard measure [...] to maintain a subs tantially equivalent level of concessions 
and other obligations to that existing under GATT 1994 […].  To achieve this objective, the Members concerned ma y agree on adequate means of trade 
compensation ...". 
13. If no agreement is reached, Article 8.2 of the AS allows the exporting Members affected to 
suspend the application of concessions or other equi valent obligations under the GATT to the trade of 
the Member applying the safeguard.  This once again confirms that only a measure that involves withdrawal, modification or suspension of an obligation or concession must comply with the 
disciplines imposed by Article XIX of the GATT and the AS.  If this is not the case, WTO Members 
may have the right to compensation for action that may be freely adopted. 
14. The object and purpose of Article XIX of the GATT and the AS, which have been described 
by the Appellate Body as "to allow a Member to re -adjust temporarily the balance in the level of 
concessions between that Member and other exporting Members"
15, also confirm this interpretation.  
The object and purpose have been confirmed by the history of the Uruguay Round negotiations, 
where the function of safeguard clauses was described as " offering certain possibilities for easing 
contracted obligations, they encourage importing c ountries to enter into commitments which would 
otherwise be of unconditional rigidity ".16 
15. The history of negotiations reaffirms the inte rpretation described.  For illustrative purposes, 
statements such as the following can be taken into account:  " GATT safeguard clauses permit the 
application […] of measures not ot herwise permitted under the rules "17 or " the scope of the issue to 
be negotiated in the Negotiating Group on Safeguar ds […] should be confined to the rules and 
disciplines applicable for the withdrawal of GATT concessions " and " Since safeguard measures 
                                                      
14 Appellate Body Report, Argentina – Footwear (EC) , paragraph 81. 
15 Appellate Body Report, Argentina – Footwear (EC) , paragraph 94. 
16 Submission by Switzerland to the Negotiating Group on Safeguards, 14 July 1988, 
MTN/GNG/NG9/W/20. 
17 Note by the Secretariat of the Negotia ting Group on Safeguards, 7 April 1987, 
MTN/GNG/NG9/W/1. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page C-14   
  invariably imply the withdrawal of GATT concessions ... ".
18  Moreover, the Secretariat, when 
explaining the history behind the drafting of Article  XIX and its role in the GATT, indicated that 
"Article XIX is one of a number of safeguard prov isions in the General Agreement which permit 
contracting parties, subject to specific conditions , to re-impose trade barriers otherwise prohibited by 
the Agreement.  It permits the imposition of tariffs  and quantitative restrictions otherwise prohibited 
by the provisions of Articles II and XI … ".19 
16. In the light of the above, the Dominican Re public also expresses its disagreement with the 
complainants' argument that the use of the word " podrá " in the Spanish text of Article XIX:1(a) of the 
GATT ("shall be free" in the English text) implie s that in the terms of the GATT or the AS a 
safeguard measure may consist of a measure th at does not suspend a concession or obligation.20  In 
addition to contradicting the context, object a nd purpose and the history of the negotiations and 
drafting of Article XIX of the GATT and the AS, it also relies on an incorrect reading of the text, 
ignoring the conditional structure of Article XI X:1(a) of the GATT, making the disciplines and 
conditions set out therein subject to the adop tion of a measure consisting of a suspension, 
modification or withdrawal of an obligation or concession. 
17. This can be confirmed in the light of the Panel Report in Chile – Price Band System .  The 
measures at issue were specific duties which,  depending on the circumstances, exceeded 
Chile's bound tariff.  Chile claimed that, as the price band system exceeded the bound tariff, it 
constituted a safeguard.  Consequently, the duty applie d was considered to be a safeguard in the terms 
of Article XIX of the GATT solely to th e extent that it exceeded the bound rate.21 
3. The applicability of Article XIX of the GATT and the AS to the investigation prior to 
the adoption of the measures at issue 
18. According to the complainants, the formula " tratar de adoptar medidas " in the Spanish text 
of Article 11.1(a) of the AS ("seek any … action" in the English text) incl udes the intention or the 
steps taken towards the specific act of adopting meas ures such as those in Article XIX of the GATT.  
The investigation prior to the adoption of the provisional and definitive measures would constitute 
such an act and therefore Article XIX of the GATT and the AS would be applicable.22 
19. The complainants propose applying the AS to an investigation, even when the ensuing 
measures do not fall within the scope of these provi sions, without making this possibility subject to 
any criterion.  A more logical interpretation woul d be to limit the time-frame for application of 
Article 11.1(a) and not to apply it when it is clear that the Member concerned did not adopt or seek to 
adopt a safeguard measure in accordance with Article  XIX of the GATT.  In fact, although it might be 
considered that in the first stages of the investigation the Dominican Republic sought  to adopt a 
safeguard measure in accordance with the provisions in Article XIX of the GATT, such a statement is 
no longer possible after the adoption of the definitive measure in October 2010. 
                                                      
18 Communication by the Nordic Countries to the Negotiating Group on Safeguards, 30 May 1988, 
MTN/GNG/NG9/W/16. 
19 Background note by the Secretariat of the Negotiating Group on Safeguards, 16 September 1987, 
MTN/GNG/NG9/W/17. 
20 Response by Costa Rica, El Salvador, Guatem ala and Honduras to the request by the 
Dominican Republic for a preliminary ruling, 3 May 2011, paragraph 95. 
21 Panel Report, Chile – Price Band System , paragraph 7.109. 
22 Response by Costa Rica, El Salvador, Guatem ala and Honduras to the request by the 
Dominican Republic for a preliminary ruling, 3 May 2011, paragraphs 86-91.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page C-15 
  
  20. Furthermore, Article 11.1(a) of the AS has to  be read in conjunction with Article 11.1(c), 
whose relevant text provides that:  " This Agreement does not apply to measures sought, taken or 
maintained by a Member pursuant to provis ions of GATT 1994 oth er than Article XIX … ".  The use of 
the conjunction "or" means the AS does not apply to  measures adopted pursuant to another provision 
of the GATT, namely, Article II:1(a). 
21. If the line of reasoning put forward by the co mplainants is followed, the only plausible 
interpretation in order to avoid th e contradictions that arise from removing from the investigation the 
measures adopted as a result of it, would be to iden tify the obligations in the AS which specifically 
apply to the investigation.  The complainants, howev er, have not indicated what these obligations are, 
which they cite with reference to the stage of the investigation, and have simply indicated that they 
"also question the way in which the notificati on and consultation proce dure were conducted …".
23 
4. The alleged suspension of Article II:1(b) of the GATT 
22. The complainants contend that the measures su spend the second sentence of Article II:1(b) of 
the GATT as the tariff constitutes a duty other th an ordinary customs duty.  The measures would 
therefore result in a safeguard measure with in the meaning of Article XIX of the GATT.24  According 
to Dominican legislation, however, a safeguard may be in the form of three possible measures:  an 
increase in tariffs, tariff quotas, or maximum rates.25  By providing for an increase  in already-existing 
tariffs, the measure constitutes an increase in ordinary customs duty and not a separate duty. 
23. Furthermore, the measures at issue replace th e MFN tariff normally applicable.  If the duty 
was distinct from ordinary customs duty, there would be no such replacement but, as is the case for anti-dumping duties or countervailing measures, it woul d be applied in addition to the duty normally 
applicable.  The following statement by the Appellate Body in India – Additional Import Duties  is 
relevant:  " Irrespective of the underlying objective, tar iffs are permissible under Article II:1(b) so 
long as they do not exceed a Member's bound rates ".26 (emphasis added) 
5. The alleged suspension of Article I:1 of the GATT 
24. The complainants stated that the exclusion of Mexico, Panama, Colombia and Indonesia from 
the measures at issue represents suspension of Article I:1 of the GATT, which the Dominican Republic justified by citing Article 9:1 of the AS.
27  This would mean that the measures at 
issue constitute safeguards in terms of Article XIX of the GATT and the AS. 
25. This argument has two flaws.  Firstly, safeguard measures in terms of Article XIX of the 
GATT do not allow suspension of Article I:1 of the GA TT.  This can be confirmed by Article 2.2 of 
the AS.  The history of negotiations contradicts the interpretation that a safeguard measure may 
                                                      
23 Response by Costa Rica, El Salvador, Guatem ala and Honduras to the request by the 
Dominican Republic for a preliminary ruling, 3 May 2011, paragraph 91. 
24 Response by Costa Rica, El Salvador, Guatem ala and Honduras to the request by the 
Dominican Republic for a preliminary ruling, 3 May 2011, paragraph 111. 
25 Law No. 1-02 on Unfair Trade Practi ces and Safeguard Measures, Article 73. 
26 Appellate Body Report, India – Additional Import Duties , paragraph 159. 
27 Response by Costa Rica, El Salvador, Guatem ala and Honduras to the request by the 
Dominican Republic for a preliminary ruling, 3 May 2011, paragraph 110. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page C-16   
  consist of the suspension of Article I:1 of the GATT.  During the Uruguay Round, it was decided to 
incorporate Article 2.2 in order to prev ent the selective application of safeguards.
28 
26. Secondly, Article 9.1 does not constitute a ge neric exception clause to Article I:1 of the 
GATT but provides a discipline for the applicati on of a safeguard measure as an exception to 
Article 2.2 of the AS.  An exception to Article 2:2 of the AS can only logically be cited when a safeguard measure in terms of Article 1 of this  Agreement actually exists, which is not the case. 
 
                                                      
28 See Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade 
Negotiations , MTN.TNC/W/FA, 20 Decem ber 1991, section M, paragraphs 5 and 9.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page C-17 
  
  ANNEX C-3 
 
CLOSING ORAL STATEMENT OF THE COMPLAINANTS 
 
 Members of the Panel, members of the Secret ariat, representatives of the Dominican Republic: 
 
1. Our closing statement will be very brief.  Ou r complaints and arguments are clear, and we 
merely wish to make four very specific comment s on subjects that were addressed during the last 
two days of our discussions. 
2. Firstly, on the issue of the interpretation of th e "obligations" in Article XIX:1(a) of the 
GATT, it is important to note that the last phrase draws a distinction between "to suspend the 
obligation in whole or in part" in respect of such product, and "to withdraw or modify the 
concession".  The term "obligation" clearly m eans something different from "concession", and 
consequently, the Dominican Republic's argument that  the "obligation" involves only that relating to 
"tariff concessions" is without foundation.  In fact, the Dominican Republic's interpretation would 
render the term "obligation" as it appears in th e last phrase of Article XIX:1(a) of the GATT 
redundant and meaningless.  Our understanding, which is  shared by some of the third parties to this 
dispute, is that the scope of the term oblig ation goes beyond the concept of "concession".  
Furthermore, the Dominican Republic's interpretation is contrary to the principle of effectiveness in 
the interpretation of treaties. 
3. Secondly, the complainants would also like to make it clear that they are not claiming 
violation of any regional trade agreement.  As indicated in our request for the establishment of a 
panel, our complaints concern only violations of covered agreements. 
4. As we have stated since the beginning of this dispute and as understood by the 
Dominican Republic up until it submitted its statem ent of preliminary objections, our position has 
been, and continues to be, that the measures at i ssue are safeguard measures within the meaning of 
Article XIX of the GATT and the AS. 
5. Thirdly, the Dominican Republic stated yesterda y that the measures at issue were simply a 
"tariff increase".  It also stated that its author ities had taken the more difficult path in adopting the 
alleged tariff increase, since they could have done so without conducting an inv estigation.  The truth, 
as we see it, is that the only reasonable explanati on why the Dominican Republic decided, at the time, 
to apply safeguard measures under Article XIX of th e GATT and the AS rather than a simple tariff 
increase, was that a simple tariff increase would not have enabled it to exclude the 
Central American countries from the scope of applica tion of those measures in view of the existence 
of bilateral preferential obligations.  We trust that this clarification will dispel any doubt with respect 
to the Dominican Republic. 
6. Although the Dominican Republic could have adopted a tariff increase without conducting a 
safeguard investigation, the fact remains that this is not the option that it chose.  Instead, it took the 
decision to initiate an investigation and adopt saf eguard measures.  The Dominican Republic cannot 
rid itself of the general obligations laid down in th e AS and Article XIX while at the same time using 
Article 9.1 of the AS to justify the discr iminatory application of those safeguards. 
7. Indeed, if the Dominican Republic had opted fo r a simple tariff increase that did not exceed 
the WTO bound rate, we would not be here today in these WTO dispute settlement proceedings.  As WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page C-18   
  we have repeatedly argued, the Dominican Repub lic is denying the obvious:  that it conducted a 
safeguard investigation, following which it imposed a safeguard measure.  To accept that a Member 
can impose safeguard measures and then describe th em as something different for the purposes of a 
dispute settlement procedure would have serious syst emic implications for the WTO.  This is yet 
another reason why the Dominican Republic cannot be allowed at this point to deny its obligations 
under Article XIX and the AS. 
8. Finally, we would like to note that in para graph 47 of its First Oral Statement, the 
Dominican Republic confirmed that the safeguard  measure was a measure other than ordinary 
customs duties:  "as long as the increase d tariff is in force, the MFN tariff normally applied  is not in 
force" (emphasis added).  To quote a legal proverb , "Where the party confesses, no proof is needed". 
 Thank you. 
  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page C-19 
  
  ANNEX C-4 
 
CLOSING ORAL STATEMENT OF THE DOMINICAN REPUBLIC 
 
 Mr Chair, members of the Panel:  
1. The Dominican Republic welcomes your efforts and questions yesterday and today at this 
first substantive meeting, in the hope that they will lead to a positive settlement of this dispute. 
2. The Dominican Republic wishes to take the opportunity of this meeting to clarify certain 
aspects of the safeguard measures adopted on the basi s of Law No. 1-02, as a consequence of previous 
exchanges of views. 
3. The Dominican Republic's tariffs are defined in Law No. 146-00, which specifies that tariffs 
may only be determined through legislative channe ls.  The measures that are the subject of this 
dispute were adopted on the basis of Law No. 1-02 on Unfair Trade Practices and Safeguard 
Measures.
1  In Title IV on "Safeguard measures", this  Law defines safeguard measures in Article 57 
as "those intended to regulate imports temporarily … [with] the objective of preventing or remedying 
serious injury to a domestic industry and facilitating adjustment for domestic producers".  Pursuant to 
Article 73, the measures in question may consist of a temporary increase in tariffs. 
4. From the foregoing statement, it follows that, on the one hand, tariffs must have a legal basis 
in a law, in this particular case Law No. 146-00.  On the other hand, Law No. 1-02 allows a temporary 
increase in the tariffs determined therein subject to the adoption of a safeguard measure, as defined in 
the Law. 
5. In Dominican law, therefore, the same rul es apply to any tariff increase resulting from a 
procedure conducted pursuant to Law No. 1-02.  In other words, there is no distinction between the 
way in which a domestic safeguard measure that does not lower the bound tariff is adopted and the 
adoption of a measure that exceeds this tariff a nd can be considered a safeguard in terms of 
Article XIX of the GATT and the Agreement on Safeguards. 
6. The fact of following the procedure defined in Law No. 1-02 and citing the provisions of the 
Agreement on Safeguards in no way implies any inte ntion on the Dominican Republic's part to make 
measures that do not lower the bound tariff subject to  Article XIX of the GATT and the Agreement on 
Safeguards.  In fact, it would be unnecessarily comp licated to follow different procedures depending 
on the type of safeguard in question. 
7. The measures at issue consist of the adoption of  a safeguard pursuant to Law No. 1-02.  As 
this measure does not consist of an increase a bove the Dominican Republic's bound tariff in the WTO 
however, as has been shown, the measure does not susp end any obligation, or modify or withdraw any 
concession in terms of Article XIX.  Certainly, according to WTO law, the Dominican Republic could 
have adopted the measures at issue without comply ing with the onerous obligations imposed by the 
Agreement on Safeguards.  But by adopting the me asures at issue pursuant to Law No. 1-02 and as 
this domestic Law reflects the Agreement on Sa feguards, the adoption procedure followed the 
Agreement on Safeguards.  As the Dominican Repub lic has already stated, this does not imply that 
                                                      
1 Exhibit RDO-11. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page C-20   
  the domestic safeguard measures are subject to th e disciplines of Article XIX of the GATT and the 
Agreement on Safeguards. 
8. To summarize, the complainants contend that, so lely for the reason that the measures at issue 
have the title "safeguard" and that the procedure in Law No. 1-02 was followed, they can question 
these safeguard measures before th e WTO Dispute Settlement Body. 
9. This position is not acceptable.  The Dominican Republic notes that many free trade 
agreements have ad hoc safeguard mechanisms.  The complainants' position would mean that any 
bilateral safeguard would be subject to examinati on by the WTO Dispute Settlement Body in the light 
of Article XIX of the GATT and the Agreement on Safeguards. 
10. To give just one example, the second paragraph of Article 8.02(2) of the 
Dominican Republic-Central America Free Trade Agreement provides that: 
For the application of bilateral safeguard measures, the competent authorities shall 
conform to the provisions in this chapter and, supplementarily, to Article XIX of the 
GATT 1994, the Agreement on Safeguards of the World Trade Organization and the respective domestic legislation. 
11. How can it be found, in the light of this pr ovision, that any bilateral safeguard adopted 
pursuant to the Dominican Republic-Central Amer ica Free Trade Agreement would be subject to 
examination by the Dispute Settlement Body in the light of Article XIX of the GATT and the 
Agreement on Safeguards?  A reply in the affirmativ e would be absurd.  Nevertheless, this is the 
conclusion reached using the logic put forward by the complainants in their r esponse to the request by 
the Dominican Republic for a preliminary ruling and in their oral statement made at this first substantive meeting. 
12. The complainants have indicated that a dopting a safeguard measure under Law No. 1-02 
when such a measure does not lower the tariff in th e WTO schedule of bindings would be contrary to 
the principle of good faith and could have harmful system ic implications. 
13. The Dominican Republic does not understand why th e complainants consider it reprehensible 
to increase a tariff temporarily under a safeguard procedure in its domestic law when the same increase could be effected under a simpler pro cedure and with fewer guarantees for the parties 
involved.  The guarantees afforded are obvious from th e broad participation of the complainants in the 
procedure prior to the adoption of the measure, when they were informed in detail of all aspects of the 
proposed measure, including the fact that it did not exceed the bound tariff.  It cannot, therefore, be considered that the Dominican Republic's conduct w as unexpected or inconsistent with the principle 
of good faith. 
14. The Dominican Republic thinks it relevant to re fer to the record of the hearing held at the 
headquarters of the Regulatory Commission on Unfa ir Trade Practices and Safeguard Measures on 
12 May 2010.  At this hearing, the representative of the Government of Honduras took the floor to 
indicate that: 
"[T]he amount of the provisional measure adopted is 38.5 per cent ad valorem, while 
the Dominican Republic's bound rate for th e products in question is 40 per cent  WT/DS415/R/Add.1 
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  ad valorem, so it cannot be claimed that there is any reason to turn to a safeguard 
measure …"2 (emphasis added) 
15. This observation was preceded by other comments prior to the adoption of the provisional 
measure.3  In other words, not only were the complainants informed that the measure would not 
exceed the bound tariff, but the complainants them selves in their statements expressed serious doubts 
about the applicability of Article XIX of the GATT.  Today, however, the complainants insist on a 
point of view that is contrary to these statements  made throughout the procedure for adoption of the 
measures which they are now questioning in the light of rules which they them selves declared to be 
irrelevant. 
16. With regard to the question of whether a safe guard measure in terms of Article XIX of the 
GATT may consist of suspension of Article I:1 of  the GATT, the Dominican Republic would like to 
refer to paragraphs 51 and 52 of its  oral statement at the beginning of this first substantive meeting. 
"51.  … [T]he safeguard measures in terms of Article XIX of the GATT do not allow 
suspension of Article I:1 of the GATT c an be confirmed by Article 2.2 of the 
Agreement on Safeguards, which provides:  'S afeguard measures shall be applied to 
a product being imported i rrespective of its source.'. 
52.  … Article 9.1 does not constitute a gen eric exception clause to Article I:1 of the 
GATT but provides a discipline for the applic ation of a safeguard measure.  More 
accurately, it constitutes an exception to Ar ticle 2.2 of the Agreement on Safeguards.  
An exception to Article 2.2 of the Agr eement on Safeguards can only logically be 
cited when a safeguard measure in terms of  Article 1 of this Agreement actually 
exists …" 
17. Mr Chair, members of the Panel, before c oncluding this oral statement, the Dominican 
Republic would like to refer to one aspect that has ar isen during this substantive meeting.  Article 72 
of Law No. 1-02 provides for the exemption of developing countries from safeguard measures adopted pursuant to the Law, thereby reflecting th e provision in Article 9.1 of the Agreement on 
Safeguards.  As has become appare nt during this meeting, however, the definition in Article XIX of 
the GATT does not correspond to the possible forms wh ich a safeguard measure may take in the light 
of Article 73 of Law No. 1-02.  It is thus possi ble that situations may arise in which certain 
WTO Members are exempt from a safeguard measure adopted pursuant to Law No. 1-02, even though 
such exemption may not be based on Article 9.1 of the Agreement on Safeguards because the 
safeguard measure is not one of the measures covered by Article XIX of the GATT.  The 
Dominican Republic is aware that exempting developing countries from a domestic safeguard 
measure may be problematic in specific cases in which the measure adopted does not constitute a 
safeguard measure in the terms of Article XIX of the GATT. 
                                                      
2 Regulatory Commission on Unfair Trade Practices and Safeguard Measures, Final Technical Report, 
Exhibit RDO-10, page 179. 
3 See, for example, Regulatory Commission on Unfa ir Trade Practices and Safeguard Measures, 
Preliminary Technical Report, Exhibit RDO-9, page 85. WT/DS415/R/Add.1 
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  18. In this connection, it might be desirable to do away with the granting of an exemption when 
the domestic safeguard measure is not covered by Ar ticle XIX of the GATT.  This is not a question 
that can be resolved in the present dispute, however , inasmuch as Article I:1 of the GATT is not part 
of the Panel's terms of reference. 
19. Mr Chair, members of the Panel, I thus conclude my oral statement.  The 
Dominican Republic remains at your disposal to respond to any questions that might arise. 
_______________ 
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  ANNEX D 
 
ORAL STATEMENTS OF THE THIRD PARTIES 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 
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  ANNEX D-1 
 
EXECUTIVE SUMMARY OF THE ORAL STATEMENT OF 
COLOMBIA 
 
 
I. THE DETERMINATION OF THE IMPOR TED PRODUCT AND THE DOMESTIC 
PRODUCT IN THE AGREEMENT ON SAFEGUARDS 
1. The present case has given rise to a discussion of the rules that should be applied in 
determining the product investigated in a safeguard  process, taking into account the relevance of that 
determination to the national authority's anal ysis, under the Agreement on Safeguards, of the 
similarity between the imported product and the lik e or directly competitive product manufactured by 
the domestic industry. 
2. In its first written submission, the complainant argues that the Dominican Republic:  (i) failed 
to determine correctly that the imported products and the domestic products were like or directly 
competitive
1;  and (ii) wrongly interpreted the concept of "producers" in the Agreement on 
Safeguards, leading to the exclusion of domestic producers of directly competitive products.2  Thus, 
the complainant concludes that the concept of "domes tic industry" in Article 4.1(c) of the Agreement 
on Safeguards was not properly established. 
3. Colombia proposes to comment on the discussion concerning whether the inclusion of tubular 
fabric and polypropylene bags in a single category of  products under investiga tion is consistent with 
the obligations of the Dominican Republic unde r the Agreement on Safeguards, especially with 
respect to the concept of "domestic industry" and the means of identifying it. 
4. Colombia agrees with the statement by the Do minican Republic that there are no precedents 
in panel or Appellate Body proceedings con cerning how the product under investigation in a 
safeguards investigation should be defined and that there are no express rules relating to this matter.  
However, it does not agree that this is a question unrelated to the provisions of the Agreement on 
Safeguards and that, consequently, there are no clea r criteria for determini ng how this finding should 
be made. 
5. The determination of the product u nder consideration or investiga tion is a fundamental part of 
the process of properly identifying the domestic industry in a safeguards investigation.  This decision 
establishes the context for determining where the " like or directly competitive products" are to be 
situated, while forming the basis of the analysis for identifying the domestic producers that make up 
the domestic industry and the data that will be needed for the analysis of injury. 
6. Colombia proposes that, despite the term "pr oduct investigated" not being used in the 
Agreement on Safeguards, a systematic interpreta tion of the Agreement under Article 31 of the 
Vienna Convention yields sufficient evidence to establish what product under investigation should be 
taken to mean and how that product should be identified in a safeguards investigation. 
7. In this respect, an exegetical reading of the second paragraph of the preamble and Article 2.1 
of the Agreement on Safeguards, consistent with Ar ticle 31 of the Vienna Convention, would suggest 
                                                      
1 First written submission of the complainants, paragraphs 77-80. 
2 First written submission of the complainants, paragraphs 160-163.  WT/DS415/R/Add.1 
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  that an investigation can only be conducted into "a product" and not several.  However, Colombia 
believes that it can be argued that the product un der investigation may be composed of several 
products, provided that it can be shown that they ar e like or directly competitive.  This conclusion 
follows from the provisions of Article 4.1(c) of the Agreement on Safeguards. 
8. Article 4.1(c) of the Agreement on Safeguards,  which defines domestic industry, reads as 
follows: 
"[…] a 'domestic industry' shall be understood to mean the producers as a whole of 
the like or directly competitive products ope rating 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".  
(emphasis added) 
9. Although the Article in question relates to the determination of the domestic industry and to 
how the imported products should be compared vis-à-vis  the domestic products, for Colombia this 
rule also applies to the determination of the product under investigation, because of the close 
relationship between the definition of domestic industry and the product investigated.  If it is not 
accepted that the products investigated should be, at  least, like or directly competitive, this finding 
could not be made with respect to domestic pr oducts, since it would be impossible to compare 
dissimilar categories of products. 
10. Insofar as the standard of Article 4.1(c) of  the Agreement on Safeguards requires that the 
domestic and imported products be like or direc tly competitive, if the "product investigated" 
contained products which in themse lves were not, or was composed of several individual products 
which needed to be considered individually, it would be impossible to prove that there was a 
parameter for defining such likeness or direct comp etitiveness.  Thus, if the definition of the product 
investigated grouped together products which were not like or directly competitive, it would not be 
possible to determine the domestic industry within the investigation. 
11. A similar argument was upheld in an analogous situation by the Panel in United States – Steel 
Safeguards , when the relationship between a suitable definition of the imported products and the 
causal link envisaged in Article 4.2(b) of the Agreement on Safeguards was analysed.  In this 
connection, the panel stated that: 
"In our view, the imported product and the lik e or directly competitive products must 
be defined in such a way that the causal link analysis required by Article 4.2(b) can be undertaken.  More particularly, they must be defined in such a way that, for example, a coincidence or a conditions of competition analysis may be undertaken."
3 
12. Colombia considers that this reasoning is also applicable to Article 4.1(c) of the Agreement 
on Safeguards inasmuch as the definition of the product investigated could prevent the proper 
identification of the domestic industry, a situation which would necessarily lead to a violation of the 
above-mentioned Article. 
13. For this reason, the criterion for establishing wh ether two different products can be regarded 
as a single product investigated means that there must , at least, be a relationship of likeness or direct 
                                                      
3 Panel Report in United States – Steel Safeguards , paragraph 10.416. WT/DS415/R/Add.1 
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Page D-4   
  competitiveness between them.  Otherwise it would be impossible to comply with the requirement for 
the determination of the domestic industry in Article 4.1(c) of the Agreement on Safeguards. 
14. Colombia notes that the Dominican Republic do es not mention any criterion for establishing 
how several products, in this case tubular fabric and polypropylene bags, could be included in a single 
category.  Apparently, this finding was based solely on considerations of a customs nature, which, in 
Colombia's opinion, is not a reasonable and sufficien t basis for making such a determination.  In the 
words of the last sentence of Article 3.1 of th e Agreement on Safeguards, the identification of the 
product investigated by the Dominican Republic wo uld not be a finding or reasoned conclusion. 
15. To accept that products investigated can be groupe d together without any justification of their 
likeness or competitiveness would be contrary to the pr inciple of effectiveness in the interpretation of 
treaties derived from Article 31 of the Vienna Convention
4, insofar as it would allow virtually any 
kind of products to be included as a single whole in a safeguard investigation, regardless of the 
relationship between them.  Under this interpretation, products as di fferent as alcoholic beverages and 
dairy products could be included in a single investigation sin ce, according to the Dominican Republic, 
there are no rules applicable to this situation, a co nclusion that is manifestly absurd and contrary to 
the Agreement on Safeguards. 
16. Colombia therefore concludes that the grouping of  tubular fabric and polypropylene bags in a 
single category of products under investigation is inconsistent with the obligations under 
Articles 4.1(c), 3.1, last sentence, and 4.2(c) of the AS. 
II. THE REQUIREMENT OF "UNFORESEEN DEVELOPMENTS" UNDER 
ARTICLE XIX:1(A) OF THE GATT 1994 AND THE AGREEMENT ON SAFEGUARDS 
17. On this point, the complainants allege that the Dominican Republic has not demonstrated the 
existence of unforeseen developments insofar as it has not given a reasonable explanation of how 
(i) the entry into force of DR-CAFTA, (ii) the globa l financial crisis and (iii) China's accession to the 
WTO constitute unforeseen developments that would justify the imposition of a safeguard.  For the 
complainants, the reasons given by the Dominican Republic's authorities for treating these events as 
unforeseen developments are inadequate. 
18. In Colombia's opinion, the Panel should take into account the fact that, although there are 
certain requirements that every Member of the WTO must meet to prove this element, the standard 
cannot be construed in such a way as to make it de  facto impossible to recognize these developments, 
by laying down requirements that are difficult to meet in practice. 
19. Colombia agrees with the statement by the Domini can Republic to the effect that the rule for 
the application of the concept of "unforeseeability" is not clear and, on the contrary, makes it difficult 
for any Member of the WTO to use the safeguard  measures for which the Agreement on Safeguards 
provides.  In Argentina – Footwear , the Appellate Body defined the concept of unforeseen 
developments as "unexpected" or "unforeseeable".
5  Likewise, the Panel in Argentina – Preserved 
Peaches  stated that:  " The text of Article XIX:1(a) cannot support an interpretation that would equate 
                                                      
4 In the following cases the Appellate Body has referred to the application of the principle of 
effectiveness in the interpretation of treatie s in settling disputes relating to the AS:  Korea – Dairy , 
paragraphs 80-82, and Argentina – Footwear , paragraph 81. 
5 Appellate Body Report in Argentina – Footwear , paragraph 91.  WT/DS415/R/Add.1 
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  increased quantities of imports w ith unforeseen developments. "
6  However, later in its report the same 
Panel considered that  "a statement that the increase in imports , or the way in which they were being 
imported, was unforeseen does not constitute a demonstr ation as a matter of fact of the existence of 
unforeseen developments ".7 
20. In recent years, the Appellate Body has ru led on several occasions on how the standard 
relating to the existence of unforeseen developments should be met.  Both these decisions and those 
already mentioned have created some uncertainty as to how States should demonstrate the existence 
of this situation. 
21. In this connection, Colombia considers it re levant to clarify the concept of unforeseen 
developments in such a way as to enable it to be applied clearly and effectively, with a view to 
allowing the application of safeguard measures under the conditions envisaged in Article XIX of the 
GATT and the Agreement on Safeguards.  In Colomb ia's view, as long as this standard on unforeseen 
developments perpetuates the uncertainty with regard to its application, it will be very difficult to 
show that situations such as those submitted by the Dominican Republic can be regarded as meeting 
the aforementioned requirement. 
22. In Colombia's opinion, given the lack of clarity  in this respect, 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 the disputed measure wa s applied.  Colombia takes the vi ew that there is simply no support 
in either the Agreement on Safeguards or Article XIX of the GATT for the opposite course of action 
which, moreover, could potentially infringe essentia l legal principles of due process and substantive 
justice. 
23. These comments are without prejudice to Colombia 's arguments as set out in its submission to 
the Panel. 
 
                                                      
6 Appellate Body Report in Argentina – Preserved Peaches , paragraph 7.18. 
7 Ibid., paragraph 7.24. WT/DS415/R/Add.1 
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  ANNEX D-2 
 
ORAL STATEMENT OF THE UNITED STATES 
 
 1. Mr Chairman and members of the Panel, it is a pleasure to appear before you today to present 
the views of the United States as a third party in these proceedings.  The written submission of the 
United States addressed the submissions of the comp laining parties, and we will not repeat those 
points here.  Today, the United States will addr ess the Dominican Republic's written submissions, 
including its request for a pre liminary ruling as to whether the Agreement on 
Safeguards  ("Safeguards Agreement") and Article XIX of the General Agreement on Tariffs and 
Trade 1994  ("GATT 1994") apply to the measures at issue in this proceeding. 
Whether the Safeguards Agreement Is Applicable 
 
2. The first issue we would like to discuss today is the applicability of the 
Safeguards Agreement to the measures at issue. 
3. Specifically, the Dominican Republic argues th at the Safeguards Agreement does not apply 
because the increased tariff rates asso ciated with the measures do not exceed the relevant tariff 
bindings of the Dominican Republic for the product or  products in question – i.e. polypropylene bags 
and tubular fabric.
1 
4. Although the United States takes no position on the consistency of the measures at issue with 
the WTO, it may be relevant to the question of th e applicability of the Safeguards Agreement that the 
Dominican Republic apparently considered that th e measures were safeguards when it imposed them, 
including notifying them as safeguard measures to the Committee on Safeguards.2  It would also 
appear as a general matter that it would be relevant as to exactly what the me asures at issue entail.  
For example, the Dominican Republic represented that it relied on at least one of the provisions of the 
Safeguards Agreement in structuring its measure s - it relied on Article 9.1 of the Safeguards 
Agreement as a basis for not applying th e increased duties to certain Members. 
5. As a result, the Dominican Republic apparently  relied on the measures as safeguards to justify 
not applying its duties on the products at issue in a most-favoured-nation manner pursuant to 
Article I:1 of the GATT 1994 when it exempted imports from certain developing countries 
(i.e. Mexico, Panama, Colombia, and Indonesia) from the application of the me asures.  As a result, 
imports of polypropylene bags and tubular fabric  from these countries are treated more favourably 
than imports from other Members. 
6. Accordingly, the question of whether the Domi nican Republic needed to suspend its tariff 
concessions on the products at issue in order to im pose the measures at issue is only part of the 
relevant legal analysis. 
Definition of "Producers" Under Article 4.1(c) of the Safeguards Agreement 
 
7. In addition, the United States would like to address the Dominican Republic's "reservation" of 
the "right" to apply a minimum transformation or value-added test (at paragraph 251) to define 
                                                      
1 Dominican Republic's request for a preliminary ruling (18 April 2011). 
2 G/SG/N/8/DOM/1/Suppl.2, G/SG/N/10/DOM/1, G/SG/N/11/DOM/1/Suppl.1 (18 October 2010).  WT/DS415/R/Add.1 
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  producers for purposes of Article 4.1(c) of th e Safeguards Agreement.  According to the 
Dominican Republic, it reserves the right to excl ude entities, such as downs tream companies that 
provide low value-added finishing services, from the universe of producers of like or directly 
competitive products and, therefore, from the domestic industry. 
8. It does not appear that the Dominican Republic applied a minimum transformation or 
value-added test in determining producers for purpo ses of the measures at issue in this proceeding.  
As a legal matter, the Panel shoul d not reach hypothetical issues that do not arise from the actual 
determination of the competent authority that is at is sue in a dispute.  Such issues would not form part 
of the "matter" the Dispute Settlement Body h as charged the Panel with examining and would 
therefore be outside the Panel's terms of reference under Article 7 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes . 
9. In any event, the United States notes that ther e is nothing in the Safeguards Agreement that 
prohibits the application of a minimum transforma tion or value-added test for purposes of defining 
producers under Article 4.1(c) of the Safeguards Agreement. 
Conclusion 
 
10. This concludes our statement.  Thank you agai n for this opportunity to express our views. 
 WT/DS415/R/Add.1 
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Page D-8   
  ANNEX D-3 
 
ORAL STATEMENT OF PANAMA 
 
 Mr Chairman, members of the Panel:  
1. As a third party, Panama welcomes this opportuni ty to give the reasons why it considers the 
safeguard measures adopted by the Dominican Rep ublic, which are the subject of these proceedings, 
to be inconsistent with GATT Article XI X and the WTO Agreement on Safeguards (AS). 
2. Panama is of the view that this Panel will reach the same conclusion when it analyses the 
Dominican Republic's actions within the context of the national investigation procedure and the 
multilateral notification and consu ltation procedures established in Ar ticles 8.1, 12.1 and 12.3 of the 
AS. 
3. Panama believes that the investigation underlying the measures adopted by the 
Dominican Republic's Investigating Authority was fl awed in its determinations with regard to:  
(i) determination of the domestic industry;  (ii) establishment of the existence of unforeseen developments that may have caused injury to the dom estic industry;  (iii) de termination regarding the 
increase in imports;  (iv) determination of injury;  and (v) the causal link between imports and injury.  
These determinations are not based on adequate and reasoned findings or on a detailed analysis of the 
case, in accordance with Articles 3.1 and 4.2( c) and the substantive rules of the AS. 
4. The lack of substantiation for these elements, wh ich are vital for an action under the AS, has 
been argued extensively in these pr oceedings by the complaining parties and now by at least one of 
the third parties.  We recall, for instance, the ar guments put forward by the complainants in their 
first written submission ( see paragraphs 73 et seq .).  Therefore, as you requested, Mr Chairman, and 
to save time, we will refer to only three points con cerning the Dominican Republic's violations within 
the framework of the AS and GATT Article XIX. 
5. First, Panama reiterates its view that the Do minican Republic did not give timely notice or 
hold prior consultations with those Members having a substantial interest in the measure, as provided 
for in Article 12.3 of the AS and Article XIX:2 of the GATT;  nor did it provide opportunities to 
obtain an adequate means of trade compensation for those Members, as established in Article 8.1 of 
the AS and Article XIX:2 of the GATT.  We elabor ate on this point in our first written submission, 
but feel it is important to reiterate it orally (see First Submission of Panama, paragraph 14 ). 
6. Second, the Dominican Republic claims th at GATT Article XIX and the AS are not 
applicable to the provisional and definitive measures adopted (see First written submission of the 
Dominican Republic, paragraph 90 ).  In Panama's view, it is clear that the Investigating Authority of 
the Dominican Republic conducted the investiga tion and adopted the measures at issue under 
Article XIX of the GATT and the AS.  This is show n by the fact that, when it excluded imports from 
Panama from the scope of the measure, the Domi nican Republic cited Article 9.1 of the AS (see 
Preliminary Resolution, fourth article, as ame nded by Preliminary Amending Resolution;  Final 
Resolution, fourth article;  CEGH-5 and 6 ).  Panama agrees with the Dominican Republic that 
Article 9.1 of the AS provides justification unde r WTO law for having excluded imports from Panama 
from the application of this measure.  WT/DS415/R/Add.1 
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  7. Moreover, the Dominican Republic notified the investigation and the provisional and 
definitive measures to the WTO under Article 12 of th e AS.  It is therefor e Panama's understanding 
that GATT Article XIX and the AS do indeed appl y to the present proceedings, as affirmed by the 
Dominican Republic in its own stat ements in support of its action ( see notifications of the measure by 
the Dominican Republic, CEGH-18 to 21 ). 
8. Third, and lastly, Panama disagrees with th e Dominican Republic's preliminary objection to 
this Panel's terms of reference.  We understa nd that the Dominican Republic objects to the 
complainants having questioned the provisiona l and definitive measures in the light of 
GATT Article XIX, the AS, GATT Articles I: 1 and II:1(a) and the second sentence of 
GATT Article II:1(b), and other issues relating to the investigation, notification and consultations in 
respect of the case ( First Written Submission of the Domi nican Republic, pa ragraphs 86 and 87 ).  
Panama participated as an associated third party in  the consultation meeting and, while safeguarding 
the confidentiality of these consultations, believes that  all the measures or complaints set forth in the 
requests for the establishment of the Panel reasonabl y reflect the requests for consultations and the 
developments that took place at the consultation meeting. 
9. Panama understands that the Members of this Or ganization have the right to adopt measures 
to safeguard their domestic industry.  These measur es must, however, adhere to the legal principles 
and processes embodied in the agreements signed by th e Members, as in the case of the AS, which is 
our current focus.  Panama is concerned that the safeguard measure adopted by the 
Dominican Republic is inconsistent with the provis ions and procedures established in the AS and the 
GATT.  We trust that the Panel will reach the same  conclusion, and that it will recommend that the 
Dominican Republic withdraw the measures immediately. 
 WT/DS415/R/Add.1 
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Page D-10   
  ANNEX D-4 
 
ORAL STATEMENT OF TURKEY 
 
 Mr Chairman and members of the Panel:  
1. Turkey welcomes this opportunity to present its  views in this proceeding.  I will summarize 
Turkey's position on the subject, to the extent possi ble, by refraining from repeating details presented 
in our written submission. 
2. Although the dispute covers many issues, Turkey  would like to focus on some major subjects 
and it is not the intention to present an opinion on th e specific factual context of this dispute and takes 
no position whatsoever as to the defence and alle gations presented by the parties on whether the 
specific measure at issue is inconsistent with  the subject provisions of the WTO Agreements. 
3. Turkey hereby wishes to contribute by expressing its opinion on some systemic issues 
regarding the interpretation of the prov isions of the Agreement on Safeguards. 
4. As it is known, Article 2 of the Agreemen t on Safeguards determines the conditions for a 
WTO Member country to apply safeguard measures.  While paragraph 1 of this provision stipulates 
the general conditions for a Member to apply a saf eguard measure, paragraph 2 of this provision 
determines that the measure to be taken shall be appl ied to all products being imported to the territory 
of that country irrespective of their source.  In  other words, safeguard measures are in principle 
imposed on an MFN basis.  In this regard, safegua rd measures have to be taken in reaction to an 
increase in imports, from whatever source and not imports from a particular country. 
5. On the other hand, Article 9.1 of the Agreem ent on Safeguards sets forth that the safeguard 
measures shall not be applied against a product orig inating 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 th e product concerned.  Turkey's "developing country 
status" has been recognized by Member States, including the Dominican Republic, and export 
products from Turkey have been excluded fro m measures in safeguard investigations. 
6. Turkey considers that the term "shall" which is  enclosed in Article 9.1 of the Agreement on 
Safeguards provides an obligation for Members to a pply the special and differential treatment to all 
developing countries that meet the conditions. 
7. In Turkey's view, in the case where a developing country's export of the product at issue to 
the country applying the measure is 0 per cent, the applicatory country carries the obligation to 
include that developing country in the list of c ountries exempt from the scope of the safeguard 
measure.  In this context, having in mind the fact that Turkey has no share in the Dominican Republic's imports in question;  the list of the developing countries, which are exempted 
from the imposition of the safeguard measure in this case, should include Turkey, as well. 
8. Turkey wishes to thank the Panel for this opportuni ty to submit its views during this hearing.  
Turkey looks forward to answering any questions that Panel may have. 
 Thank you, Mr Chairman.  WT/DS415/R/Add.1 
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  ANNEX D-5 
 
ORAL STATEMENT OF THE EUROPEAN UNION 
 
 Mr Chairman, distinguished members of the Panel:  I. INTRODUCTION 
1. The EU makes this third party oral statement b ecause of its systemic interest in the correct 
interpretation of Article XIX of the GATT 1994  and the Agreement on Safeguards .  The EU 
respectfully requests this Panel to take into account  the observations already made in our Third Party 
Written Submission when making findings in this  case.  Today, while not repeating those 
observations, the EU will recall some of them and w ill make some additional remarks in view of the 
comments made by other third parties. 
II. APPLICABILITY OF THE AGREEMENT ON SAFEGUARDS 
2. The first issue the EU would like to recall is the applicability of the Agreement on Safeguards  
in the present case. 
3. In the EU's view, Article 1 of the Agreement on Safeguards  defines its scope by reference to 
the measures "provided for in Article XIX of the GATT 1994".  Article XIX of the GATT 1994  
authorizes WTO Members to suspend the obligatio ns incurred under that agreement provided that 
certain conditions are met.  In this respect, it a ppears that the nature of a safeguard measure under 
Article XIX of the GATT 1994  is of a derogation to obligations or commitments entered into by 
WTO Members.  If a measure, defined as a tariff in crease or a quantitative restriction, adopted by a 
WTO Member does not amount to such a derogation, it will not be considered as a safeguard measure 
pursuant to Article XIX of the GATT 1994  and, consequently, will not fall under the Agreement on 
Safeguards . 
4. Indeed, the EU observes that several provisions of the Agreement on Safeguards
1 make 
reference to the need to maintain a "substan tially equivalent level of concessions and other 
obligations" once the safeguard measure has been adopt ed precisely because of its inherent nature of 
derogation to those concessions.  This reference would not make se nse if a safeguard measure would 
not lead to a suspension of obligations or concessi on since, in that case, there would be nothing to 
compensate for. 
5. In any event, as noted in our written submission,  this does not necessarily imply that the tariff 
measure at issue in this dispute falls entirely outside the scope of the Agreement on Safeguards .  Such 
a measure also comprises a set of actions  taken by the Dominican Republic which can be examined in 
view of the obligations contained in the Agreement on Safeguards .  In the EU's view, actions when 
initiating and conducting the investigation are governed by the Agreement on Safeguards  even if the 
investigation is terminated and no such measure is even tually imposed as a result of the investigation.  
Thus, a fortiori  in cases where the investigation shows that  "the extent necessary to prevent or remedy 
serious injury and … facilitate adjustment"2 does not require going beyond the tariff binding, the EU 
                                                      
1 Agreement on Safeguards , Articles 7.2, 8.1 and 12.3. 
2 Agreement on Safeguards , Article 5.1. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page D-12   
  considers that the set of actions taken by the i nvestigating authority should still comply with the 
Agreement on Safeguards .
3 
III. DEFINITIONS OF PRODUCT UNDER CONSIDERATION AND DOMESTIC 
INDUSTRY 
6. The EU would also like to address some of the comments raised by Third Parties as regards 
the need for an assessment of li keness or direct competition when defining the product under 
investigation.4  As explained in our written s ubmission, Article 4.1(c) of the Agreement on Safeguards  
does not require such an assessment.  Thus, WTO Members are not limited when determining the 
product under investigation. 
7. However, several obligations follow from that dete rmination.  In particular, the definition of 
the product concerned serves as the basis for dete rmining which products a nd producers should be 
taken into account as the relevant output for the pur poses of defining the domestic industry.  Insofar 
as the parallelism between the prod uct under investigation and the like or directly competitive 
domestic products is maintained, the definition of do mestic industry will conform to Article 4.1(c) of 
the Agreement on Safeguards , without the need to establish that both inputs and the final product are 
like or directly competitive products. 
8. Furthermore, the EU notes that in US – Lamb  the Appellate Body did not impose the 
requirement to only include like or directly competitive pr oducts in the definition of product under 
investigation.  And certainly it did not say that inputs can only be included as part of the same product 
under investigation if they are like or directly comp etitive with the finished product.  This issue was 
simply not addressed by the Appellate Body.  Rather , in that case the Appellate Body questioned the 
definition of the domestic industry which included inputs (i.e. live lambs) and the final product 
(i.e. lamb meat) while the product under investigation was only the final product (i.e. lamb meat).  In 
other words, the Appellate Body questioned the l ack of parallelism between the product concerned 
and the like or directly competitive domestic products. 
IV. UNFORESEEN DEVELOPMENTS 
9. The EU also recalls its position that the demons tration of "unforeseen developments" must be 
made before imposing the safeguard measures.5  This has been confirmed by the Appellate Body on 
numerous occasions.  The Dominican Republic bases its contention that the "unforeseen 
developments" clause is not legally binding on argumen ts that have been explicitly rejected by the 
Appellate Body.  Thus, the Panel should follow prev iously adopted Appellate Body reports addressing 
the same issues.6  This does not mean that the Panel can disagree with previously adopted 
Appellate Body reports and state so in its repor t.  However, in order to ensure security and 
predictability of the system7, it should not depart from the Appellat e Body's consistent interpretation 
                                                      
3 Colombia's Third Participant Written Submission, pa ragraphs 18-22;  Nicara gua's Third Party Written 
Submission, paragraphs 5-9. 
4 Colombia's Third Participant Written Submission, paragraphs 25-37. 
5 Colombia's Third Participant Written Submission, paragraphs 47-50. 
6 Appellate Body Report, US – Stainless Steel (Mexico) , paragraph 161. 
7 DSU , Article 3.7.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
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  of the covered agreements, and thus leave the dissenting WTO Member the possibility of invoking 
"cogent reasons" before the Appellate Body.
8 
V. PARALLELISM AND ARTICLE 9.1 OF THE AGREEMENT ON SAFEGUARDS 
10. Finally, the EU would like to add that the exclusion of certain developing countries from the 
scope of application of the safeguard measure pur suant to the application of Article 9.1 of the 
Agreement on Safeguards  does not affect the parallelism under Articles 2.1 and 2.2.9  Unlike other 
situations, such as the inclusion of members of a free-trade area10, the exception of developing 
countries whose import share collectively does not exceed 9 per cent of the total imports of the 
product concerned is explicitly provided for in the Agreement on Safeguards .  Absent any 
cross-reference to Article 2 or any clarification in Article 9 that those imports should also be excluded 
for the relevant analysis under Article 2.1, the logi cal conclusion is that the negotiators did not intend 
to require parallelism also with respect to an explicit exception to Article 2.2. 
VI. CONCLUSIONS 
11. To conclude, while not taking a final position on the merits of the case, the EU requests the 
Panel to carefully review the scope of the claims in light of these observations. 
 Mr Chairman, distinguished Members of th e Panel, thank you for your kind attention. 
 
_______________ 
 
  
                                                      
8 Panel Report, US – Stainless Steel  (Mexico) , paragraph 7.105 as reversed by the Appellate Body in 
US – Stainless Steel (Mexico) , paragraph 162;  and Panel Report, US – Continued Zeroing , paragraphs 7.181 and 
7.182 ("As discussed above, we share a number of concerns raised by the Panel in US – Stainless Steel 
(Mexico) , particularly with regard to the US mathematical equivalence argument.  We recognize, however, that 
the Appellate Body in its report revers ed the Panel's findings and this report gained legal effect through adoption 
by the DSB.  We note that this con tinues a series of consistent recommendations made by the DSB over the past 
several years following reports that addressed the same issues based largely on the same arguments.  Given the consistent adopted jurisprudence on the legal issues that are before us with respect to simple zeroing in periodic 
reviews, we consider that providing prompt resolution to this dispute in this manner will best serve the multiple 
goals of the DSU, and, on balance, is furthered by fo llowing the Appellate Body's adopted findings in this 
case"). 
9 US Third Participant Written Submission, paragr aphs 14-17;  Nicaragua's Third Party Written 
Submission, paragraphs 10-11. 
10 Appellate Body Report, US – Line Pipes , paragraph 197;  Appellate Body Report, US – Wheat 
Gluten , paragraph 96;  and Appellate Body Report, US – Steel Safeguards , paragraph 441.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page E-1 
  
  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 
 WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page E-2   
  ANNEX E-1 
 
EXECUTIVE SUMMARY OF THE SECOND WRITTEN SUBMISSION OF 
THE COMPLAINANTS 
 
 
I. INTRODUCTION 
1. In this second written submission, Costa Rica,  El Salvador, Guatemala and Honduras ("the 
complainants") will refute the arguments put forwar d by the Dominican Republic in the request for a 
preliminary ruling contained in its first written submission, as well as in its oral statements and its replies to the Panel's questions. 
II. THE APPLICABILITY OF ARTICLE XIX OF THE GATT AND THE AS 
2. First of all, as is clear from the design, structure and architecture of the provisional and 
definitive measures
1, the latter impose "other duties or charges" within the meaning of Article II:1(b), 
second sentence, of the GATT, given the following attr ibutes of an objective nature, which distinguish 
them from ordinary customs duties:  (a) the proces s of formulation of the measures (administrative 
process compared with the legislative process which characterizes ordinary customs duties)2;  (b) the 
intention of the authority which gave  rise to the measure ("second tariff")3;  (c) its actual wording 
(alternative duty to the ordinary customs duty)4;  (d) its actual administration (treatment different from 
ordinary customs duties)5;  and (e) the express admission by the Dominican Republic that the measure 
replaces  the ordinary customs duty ("as long as the increased tariff applies, the ordinary MFN tariff 
shall not apply").6 
3. Secondly, the Dominican Republic argues that Article XIX:1(a) excludes the possibility of 
imposing safeguard measures that imply a suspension of Article I:1 of the GATT, suggesting that it is 
not legally feasible to suspend the obligation under this  provision in the context of a safeguard action.  
For that purpose, it cites various views of individu als or relevant historical background concerning 
Article XIX.7  However, the underlying issue is the fact that the text of Article XIX:1(a) does not 
make the distinction referred to by the Dominican Re public.  The term "obligation" is not subject to 
any qualification.  As mentioned by the EU, a not e to the analogous provision to Article XIX in the 
Havana Charter (the predecessor to the GATT 1947)  imposed the obligation of non-discrimination 
against imports from any member country.  However, that note was deleted and does not appear in the 
text of the GATT.8  The negotiating history plays a secondary role in the interpretation of an 
                                                      
1 Replies of the complainants to questions 26 and 27. 
2 Exhibit CEGH-23.  Reply of the Dominican Republic to questions 31 and 32.  Response to the 
preliminary request, paragraph 123;  opening statement of the complainants, paragraphs 143 and 144. 
3 Exhibits CEGH-7 (page 93) and CEGH-10 (page 97).  Response to the preliminary request, 
paragraph 123;  opening statement of the complainants, paragraph 121. 
4 Exhibit CEGH-9 (pages 8 and 9 - second article).  Response to the preliminary request, 
paragraph 123;  opening statement of the complainants, paragraph 142. 
5 Exhibits CEGH-30 and CDGH-31.  Repl y of the complainants to question 26. 
6 Opening statement of the Domi nican Republic, paragraph 47. 
7 Reply of the Dominican Republic to question 60 from the Panel. 
8 Reply of the EU to question 2 from the Panel.  WT/DS415/R/Add.1 
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  international agreement.  The complainants' view th at the term "obligation"  covers all obligations 
under the GATT is shared by the United States
9 and the EU.10 
4. Thirdly, the Dominican Republic argues that the AS covers only measures that involve a 
suspension of obligations, but no other actions relati ng to a safeguard investigation, because Article 1 
of the AS requires that the AS shall apply only to measures provided for in Article XIX of the GATT.  
Conversely, if a measure other than one of those pr ovided for in Article XIX of the GATT is taken, it 
is not applicable.11  The complainants contend that the me asures at issue imply a suspension of 
obligations under Articles I:1, I:2(a) and II:1(b)  of the GATT, for which reason, even under the 
Dominican Republic's interpretation, these measures are safeguard measures.  Notwithstanding, even 
if it is considered that the measures do not imply a suspension of obligations within the meaning of 
Article XIX of the GATT, the complainants cont end that the measures and all aspects of the 
investigation are covered by the AS and by Article XIX. 
5. In the complainants' view, the reference to  "measures provided for in Article XIX of 
GATT 1994" in Article 1 of the AS does not mean th at any safeguard measure necessarily implies the 
suspension of obligations or the withdrawal or modification of concessions.  If that were the case, 
Article 11.1(a) of the AS would be deprived of any meaning.  The approach suggested by the Dominican Republic would imply that a safeguard i nvestigation, including the determination of the 
right to apply safeguard measures, could not be challenged until the adoption of a measure had been 
verified. 
6. Through its interpretation, the Dominican Re public would appear to be suggesting the 
introduction of a rule analogous to Article 17.4 of the Anti-Dumping Agreement with regard to the 
scope of safeguard measures, via the interpretation of the Panel.  Article 17.4 of the Anti-Dumping 
Agreement establishes an effective limit on the righ t to submit an anti-dumping dispute to a panel, 
unless an anti-dumping measure at least exists.  However, in the matter of safeguards, there is no 
provision analogous to Article 17.4 of the Anti-Dump ing Agreement that could be contained in the 
AS.  Nor is it foreseen in Appendix 2 of the DSU th at safeguard disputes should be subject to special 
or additional provisions as indeed provided for under Article 17.4 in  respect of anti-dumping disputes. 
7. Accordingly, the complainants consider that  the "measures provided for in Article XIX of 
GATT 1994" in Article 1 of the AS refers to any t ype of measure available to an importing Member 
that has established the right to apply a safeguard  measure in accordance with the first part of 
Article XIX:1(a) and the AS;  that is to say, a measure responding to the serious injury caused by 
increased imports as a result of unforeseen developmen ts and the effect of the obligations incurred 
under the GATT, including tariff concessions. 
8. The term "shall be free" in the last part of Ar ticle XIX:1(a) of the GATT means that, prior to 
verification of the circumstances and conditions provid ed for in the first part of Article XIX:1(a), a 
Member is entitled to suspend an obligation, or to  withdraw or modify concessions.  However, this 
entitlement does not mean that the action taken by the Member in response to the serious injury 
should  necessarily involve a suspension of obligations or the withdrawal/modification of a 
concession.  The purpose of the AS and of Article XIX of the GATT is to provide a mechanism to prevent or remedy serious injury to the domestic industry caused by increased  imports as a result of 
unforeseen developments and the effect of obligatio ns under the GATT, and to facilitate adjustment.  
                                                      
9 Reply of the United States to question 2 from the Panel. 
10 Reply of the EU to question 2 from the Panel. 
11 Reply of the Dominican Republic to questions 62 and 77 from the Panel. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page E-4   
  Articles 5 and 7 of the AS require that a safeguard measure be applied solely and exclusively to the 
extent and during the period "necessary" to preven t or remedy serious injury and to facilitate 
adjustment.  Any measure that goes beyond what is "n ecessary" either in magnitude or time-scale is in 
violation of these provisions of the AS, even if th e measures fall within the scope of bound measures 
or are not inconsistent with general GATT obligations. 
9. The Dominican Republic's interpretation could lead to a circumvention of other trade policy 
instruments such as anti-dumping duties and counterva iling duties.  Under that interpretation, if a 
Member that initiates and carries forward an anti-dumping investigation (in accordance with 
Article VI of the GATT and with the Anti-Dumping Agreement) observes flaws in the investigation, 
that Member could evade questions under those in struments by terminating the investigation in 
question without applying an anti-dumping duty, and subsequently increase the tariff up to the level 
that would have corresponded to the anti-dumping dut y, but below the bound level in order to be able 
to affirm that no anti-dumping measure has been im posed and that, at the same time, there is no 
violation of the bound tariff.  Clearly, this interp retation would be contrary to the spirit of the 
WTO Agreement.  The complainants trust that this Panel will not set a precedent that renders 
inoperative these trade policy instruments which are of fundamental importance in multilateral trade 
relations. 
III. THE PRELIMINARY OBJECTIONS CONCERNING THE TERMS OF 
REFERENCE OF THE PANEL 
10. The Dominican Republic argues that the alle ged inconsistency between the request for 
consultations and the panel request has changed the essence of the complaints.
12  The complainants 
note that the change in the essence of a complaint is a criterion that has been used in objections to the 
inclusion of additional measures  but not in objections to the inclusion of additional legal bases13, 
which are the kind of objections raised by the Domi nican Republic in this dispute.  In addition, the 
essence of the complaints has not changed inasmuch  as the measures, the products at issue and the 
covered agreements relied upon have always been the same. 
11. As part of another preliminary objection, the Dominican Republic also states that the 
complaints under Articles I and II of the GATT are ne w complaints since they were not included in 
the request for consultations14 and "bear no relationship whatsoever to the submissions contained in 
the request for consultations".15  As was explained above, these claims come within the Panel's terms 
of reference by virtue of the express reservati on contained in the request for consultations.16  Contrary 
to the contention of the Dominican Republic, the r eservation in question cannot be characterized as 
"very full" since it refers only to the right of  the complainants to raise additional matters in 
accordance with the AS and the GATT 1994 , and in the context of concer ns relating to provisional and 
definitive measures, as well as the related proceedings. 
                                                      
12 First written submission of the Dominican Republic, paragraphs 67, 82, 84 and 89.  Replies of the 
Dominican Republic to the questions from the Panel at the first substantive meeting, pages 62-65. 
13 Panel Report, EC – IT Products , paragraph 7.182;  Panel Report, Dominican Republic – Cigarettes , 
paragraph 7.19;  Appellate Body Report, US – Zeroing  (EC) (21.5) , paragraph 383;  Appellate Body Report, 
Brazil – Aircraft , paragraph 132. 
14 First written submission of the Dominican Republic, paragraph 89. 
15 Replies of the Dominican Republic to the questions from the Panel, page 64. 
16 Initial oral statement of the complainants at the first substantive meeting, paragraphs 34-45;  replies 
of the complainants to the questions from the Panel at the first substantive meeting, paragraphs 152-160.  WT/DS415/R/Add.1 
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 WT/DS417/R/Add.1 
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  IV. THE DEFINITION OF THE DOMESTIC INDUSTRY 
12. The claim concerning the domestic industry is  a compound claim which subsumes various 
related complaints.  The complaint relating to  the definition of the imported product under 
investigation refers to the lack of "adequate and reasoned explanations" in the light of the 
requirements of Articles 3.1, last sentence, and 4.2(c) of the AS.
17  The complainants observe that in 
section 4.2.4, the Dominican Republic bases its ar gument on the mistaken idea that the claims 
concerning the imported product under investigation refer to the alleged existence of guidelines for 
their definition;  this is not the case, as is clear from the first written submission, the opening 
statement at the first meeting with the Panel, th e replies to the Panel's questions and this second 
written submission.18 
13. It is clear that the Dominican Republic failed to  demonstrate that its investigating authority 
had given an adequate and reas oned explanation concerning the various questions and factual 
information provided by the numerous interested pa rties which called into question the definition of 
the product under investigation, and that it also faile d to demonstrate that it had provided an adequate 
and reasoned explanation of the reasons for tariff  classification on which it had based its decision to 
consider tubular fabric and polypropylene bags as a single product under investigation. 
14. Regarding the Dominican Republic's argument th at "there are no Panel or Appellate Body 
determinations which explicitly in terpret the terms "like product" or  "directly competitive product" in 
the context of determinations covered by the AS"19 the complainants fail to see the significance of that 
argument and observe that the Dominican Republic ignores the recent settled case law of the Appellate Body in the EC – Civil Aircraft  case.  The absence of determinations explicitly interpreting 
the terms "like product" and "directly competitiv e product" does not exempt the investigating 
authorities from making explicit findings and providing adequate and reasoned e xplanations in respect 
of both definitions.  Nor does it exempt the i nvestigating authorities from following a mandatory 
order of analysis in order to define the domestic industry. 
15. Consequently, there are no grounds for rejecting the arguments relating to the inconsistency 
of the determination regarding the imported product under investigation.  In particular, it is clear that 
the Dominican Republic failed to demonstrate that  its investigating authority had provided an 
adequate and reasoned explana tion concerning the various ques tions and factual information 
submitted by the numerous interested parties, whic h called into question the definition of the product 
under investigation, and that it also failed to demo nstrate that it had given an adequate and reasoned 
explanation of the reasons for tariff classificati on on which it had based its decision to consider 
tubular fabric and polypropy lene bags as a single product under investigation. 
                                                      
17 First written submission of the complainants, paragraph 94.  Opening oral statement by the 
complainants, paragraphs 63 to 65. 
18 First written submission of the complainants, paragraph 94.  Opening oral statement by the 
complainants, paragraphs 63 to 65.  Second writte n submission of the complainants, paragraph 85. 
19 First written submission of the Dominican Republic, paragraph 191. WT/DS415/R/Add.1 
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Page E-6   
  V. UNFORESEEN DEVELOPMENTS AND THE EFFECT OF OBLIGATIONS 
INCURRED UNDER THE GATT 
16. The Dominican Republic has explained that the following events were considered as 
unforeseen developments:  (i) China's accession to the WTO;  and (ii) the tariff cuts resulting from 
free trade agreements.
20 
17. As a factual matter, from the beginning of the process of China's accession to the WTO and at 
the time when the WTO Agreement entered into  force for the Dominican Republic (i.e. on 
9 March 1995), the negotiations regarding China's accession were already under way, having begun in 
1987.  Hence, China's accession to the WTO in 2001 does not constitute a development that was 
unforeseen or unexpected for the Dominican Republic  when the WTO Agreement entered into force 
in 1995.  On the contrary, in 1995 it was foreseen that  at some point in the future China would join the 
WTO once negotiations with the various Member s of this Organization were completed. 
18. The Dominican Republic also makes the ex post  argument that the tariff cuts under the 
Central America-DR Agreement and DR-CA FTA constitute unforeseen developments.21  The initial 
provisions of these free trade agreements indicat e that both were entered into pursuant to 
Article XXIV of the GATT, which, following th e establishment of the GATT 1947, stipulated the 
possibility for Members of the GATT/WTO system to form free trade areas or customs unions.22  
Upon joining the WTO, the Dominican Republic assumed  the rights and obligations contained in the 
WTO Agreement, including the provisions of Article XXIV of the GATT.23  This implies that, for the 
Dominican Republic as a WTO Member, the possib ility of signing free trade agreements under 
Article XXIV of the GATT was not an unforeseen  event. 
19. Even assuming, quod non , that China's accession and the tariff cuts pursuant to the 
above-mentioned agreements had constituted unforeseen developmen ts for the Dominican Republic 
and that the latter had made the relevant adequate  and reasoned finding in its technical reports (or 
resolutions), it is clear that no logical connectio n whatsoever was establishe d between these events 
and the alleged increase in imports of polypropylene bags and tubular fabric. 
VI. THE ALLEGED INCREASE IN IMPORTS 
20. In response to question 96, the Dominican Republic acknowledges that the treatment of 
tubular fabric and polypropylene bags as a single product affected the determination of increased 
imports, since the data relati ng to imports of both products were analysed in conjunction.24  Given this 
explicit acknowledgement, the compla inants consider that, if the Panel finds that there were 
                                                      
20 Replies of the Dominican Republic to the questions from the Panel at the first substantive meeting, 
page 93. 
21 Replies of the Dominican Republic to the questions from the Panel at the first substantive meeting, 
page 93. 
22 Central America-DR Agreement, Article 1.01 ("The Parties estab lish a free trade area in accordance 
with the provisions of Article XXIV of the General Agreement on Tariffs and Trade 1994 and Article V of the 
General Agreement on Trade in Services (GATS) of the WTO Agreement"), Exhibit CEGH-37;  DR-CAFTA, 
Article 1.01 ("The Parties to this Agreement, purs uant to the provisions of Article XXIV of the General 
Agreement on Tariffs and Trade 1994  and Article V of the General Agreement on Trade in Services , establish a 
free trade area"), Exhibit CEGH-38. 
23 The Enabling Clause is another instrument that provides for the possibility of regional trade 
arrangements. 
24 Reply of the Dominican Republic to question 96 from the Panel.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page E-7 
  
  no adequate and reasoned explana tions regarding the definition of the imported product subject to 
investigation, the analysis of increased imports would also be invalid, since th e investigating authority 
used in that analysis the same definition of the im ported product subject to inve stigation, which is not 
supported by the provisions of the AS.  In other wo rds, an element that is inconsistent with the 
provisions of the AS (in this case the definition of  the imported product subject to investigation under 
Articles 3.1, last sentence, and 4.2( c)) and which is used as a basis for another analysis required by the 
AS, such as the determination of the increase in import s, cannot lead to an evaluation of that increase 
that is consistent with the AS.  For this reason alone, the determination of increased imports should be 
declared inconsistent with Article XIX:1(a) and Artic les 2.1, 3.1, last sentence, and 4.2(c) of the AS. 
21. With regard to the final determination, speci fically, the Dominican Republic uses information 
from outside the period of investigation in an attemp t to explain the decrease in imports up to the end 
of the period of investigation.  As this informati on lies outside the period of investigation, it is not 
appropriate to take it into consideration. 
VII. THE ALLEGED SERIOUS INJURY 
22. The Dominican Republic asserts that there was no need to carry out a separate analysis of 
certain sectors because it evaluated fabric and polypr opylene bags as a whole and did not conduct an 
analysis by sector or segment.
25  The problem with this assertion is that, in actual fact, the 
Dominican Republic did conduct an analysis by sector with regard to production by volume - that of 
finished bags - as was acknowledged by its own investigating authority, since that was the only 
information which was available on that aspect.26 
23. Thus, the investigating authority assumed that the finished bags sector comprised the total 
output of tubular fabric and polypropylene bags.  However, the information from the 
Dominican Republic's own reports also shows that there was production of tubular fabric, beyond that 
used captively by FERSAN, which was destined for th e commercial market (sales of tubular fabric to 
FIDECA), which could not therefore be considered  as being included within the volume production of 
finished bags. 
24. With regard to the market share of impor ts as a percentage of consumption, the 
Dominican Republic again puts forward an ex post  explanation which has no basis in its 
determinations.  This explanation should also be rejected.  Nevertheless, even if it were taken into 
consideration, what the Dominican Republic is asserting is that, on account of the investments 
undertaken, FERSAN deserved to have a greater share of the market than that which it obtained at the 
end of the period.27  The Dominican Republic leaves aside the objective figures which show precisely 
the opposite:  that FERSAN was gaining market shar e at the expense of imports.  Not even on an 
ex post  basis does the Dominican Republic provide an explanation as to how investments in 
technology by FERSAN could justify an "adjustmen t" of market share beyond the objective figures 
found in the DEI reports. 
25. Concerning the assessment in respect of stocks , the Dominican Republic admits that it made 
an end-to-end assessment without consid ering the trends in this indicator.28  It is clear, therefore, that 
the evaluation required by Articles 4.2(a), 3.1 and 4.2( c) of the AS was not carried out.  This point is 
                                                      
25 Reply of the Dominican Republic to question 127 from the Panel. 
26 Initial report page 14. 
27 Reply of the Dominican Republic to question 127 from the Panel. 
28 Reply of the Dominican Republic to question 141 from the Panel. WT/DS415/R/Add.1 
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WT/DS418/R/Add.1 
Page E-8   
  supplementary to the other objections raised with re gard to the valuation of inventories, which we 
have mentioned in our pr evious written submissions.
29 
26. Regarding the injury evaluation criterion in re lation to the preliminary determination, the 
Dominican Republic presents an interpretation which would have the effect of lowering the standard 
of proof, by even eliminating the evaluation of the indi cators referred to in Article 4.2(a) of the AS for 
this type of determination.  The complainants  strongly disagree with this approach.  As the 
complainants mentioned in their reply to question 14 6, there is no reason to consider that the concept 
of serious injury or threat of serious injury is different in Articles 4 and 6 of the AS, especially since 
Article 4.1 defines both concepts "for the purposes" of the AS. 
VIII.  THE ALLEGED CAUSAL LINK 
27. We note that the Dominican Republic has offere d no defence arguments in addition to those 
put forward in its first written submission in connection with our complaints concerning causation and 
non-attribution.  The complainants have alread y responded to the Dominican Republic's defence 
concerning these two complaints, as set out in our initial oral statement at the first substantive 
meeting.30 
IX. PARALLELISM BETWEEN THE SCOPE OF APPLICATION OF THE MEASURE 
AND THE SCOPE OF THE INVESTIGATION 
28. As was noted previously by the complainants, the obligation with regard to parallelism is 
enforceable irrespective of the reasons why a Member  decides to exclude imports from certain origins 
from the application of the measure.31  The complainants do not agree with the Dominican Republic's 
interpretation to the effect that Article 9.1 of the AS constitutes an exception to the parallelism 
requirement since:  (i) the AS contains no textual basi s for such an interpretation;  (ii) the parallelism 
obligation has been defined in general terms by th e Appellate Body, without providing for exceptions 
to its fulfilment. 
29. Nor is the parallelism obligation limited to situa tions of exclusion of imports from countries 
that are trading partners under an FTA.  Alt hough the Appellate Body defined the parallelism 
obligation when examining safeguard measures that excluded imports from free trade areas, this does 
not imply that the obligation itself is limited to that context. 
X. NOTIFICATION, LACK OF CONSULTATIONS AND OF MEANS OF TRADE 
COMPENSATION 
30. The complainants reiterate their view that th e proceedings and hearings carried out in the 
safeguard investigation under the jurisdiction of  the Dominican Republic cannot be treated as 
equivalent to consultations at multilateral level  as prescribed by Article 12.3 of the AS.  The conduct 
of an investigation which provides adequate opportunity  for the interested parties to put forward their 
arguments constitutes compliance with  the obligation set out in Article 3.1, but no reference is made 
to the prior consultations provided for in Article  12.3.  Accordingly, the Dominican Republic's 
interpretation would make Article  12.3 redundant, since it would mean that the conduct of the 
                                                      
29 First written submission of the complainants, paragraphs 218-223;  opening statement, 
paragraphs 89-90. 
30 Initial oral statement of the complainants at the first substantive meeting, paragraphs 99-115. 
31 Initial oral statement of the complainants at the first substantive meeting, paragraph 118.  WT/DS415/R/Add.1 
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 Page E-9 
  
  investigation required by Article 3.1 would automatically imply compliance with Article 12.3.  This 
proposition should be rejected as it would be contra ry to the principle of effectiveness in the 
interpretation of treaties.
32 
XI. THE VIOLATIONS OF ARTICLES I:1, II:1(A), AND II:1(B) OF THE GATT 
A. COMPLAINTS UNDER ARTICLE I:1 OF THE GATT 
31. Both the provisional measure and the definitive m easure are inconsistent with Article I:1 of 
the GATT, inasmuch as the exclusion of imports  from Colombia, Indonesia, Mexico and Panama 
from the scope of those measures constitutes an advant age, favour, privilege or  immunity granted to 
imports from those origins and is not granted "imme diately and unconditionally" to any "like product" 
originating in the territories of all the other WTO Members. 
32. Furthermore, the criterion for the granting of  such an advantage, favour, privilege or 
immunity is discriminatory even where there is co mpliance with the principle that imports should not 
individually, by origin, exceed 3 per cent of tota l imports, or collectively account for more than 
9 per cent of that total during the period under investigation.33  For example, that criterion was not 
applied to exclude imports from Thailand, which are less than 3 per cent.34 
33. The complainants note that the Dominican Re public shares this view.  In its reply to 
question 2 from the complainants, the Dominican Republic stated that it "understands, as indicated in its final statement at the first substantive meeting of  the Panel, that the exclusion of certain countries 
under this provision raises problems in situati ons where the safeguard measures adopted in 
accordance with this law do not c onstitute safeguard measures under th e terms of Article XIX of the 
GATT and the Agreement on Safeguards".
35 
B. COMPLAINTS UNDER ARTICLE II:1(a)  AND II:1(b)  OF THE GATT 
34. Article II:1(b) prohibits the application of import duties and charges other than ordinary 
customs duties.  By way of exception to this prohib ition, a Member may maintain a duty or charge of 
this nature which existed at "the date" of the GATT [1994] or which was enforceable under 
mandatory legislation in the territory of the Memb er before that date.  Another exception is where 
other import duties and charges distinct from ordina ry customs duties have been recorded in the 
Schedule of Concessions of the Member concerned.  Both the provisional and the definitive measure 
imposed by the Dominican Republic are "tariff surc harges" or, in general terms, import charges or 
duties other than "ordinary customs duties", which ar e applied to imports of polypropylene fabrics and 
bags.  The Dominican Republic's regulations do not  describe them in this way.  However, the 
complainants chose the term "tariff surcharges"  because they represent rates different from the 
"normally applicable MFN tariff"36;  different, that is, from an ordinary customs duty under 
Dominican legislation.37 
                                                      
32 Appellate Body Report, US – Gasoline , page 25:  see also Appellate Body Report, Japan – Alcoholic 
Beverages , page 12;  Appellate Body Report, Korea – Dairy , paragraphs 81-82. 
33 Preliminary resolution, paragraphs 50 and 51;  final resolution, paragraphs 42 and 43. 
34 Preliminary report, Annex I;  final report, Annex I. 
35 Reply of the Dominican Republic to question 2 from the complainants;  final statement of the 
Dominican Republic at the meeting with the Panel, paragraph 17. 
36 Opening statement of the Domi nican Republic, paragraph 47. 
37 Exhibit CEGH-27. WT/DS415/R/Add.1 
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  35. It is important to emphasize that the tariff surcharge was designed by the investigating 
authority of the Dominican Republic as a "second tariff"
38 and that the definitive measure operates as 
an alternative to the MFN tariff, so that either th e surcharge or the ordinary customs duty is applied, 
whichever is higher.39  Moreover, in accordance with Tariff Reform Law No. 146-00 of 
11 December 2000, ordinary customs duties or ta riffs can only be amended by a legislative act.40 
36. It should also be mentioned that the Dominican Republic failed to record in its Schedule of 
Concessions the possibility of applying other duti es or charges of any kind imposed on or in 
connection with the importation in excess of those imposed on the date of the GATT 1994.41  This 
excludes the possibility of justifying the measur es at issue under Article II:1(a) of the GATT. 
37. Consequently, the provisional and definitive meas ures are inconsistent with Article II:1(b), 
second sentence, of the GATT and by implication, with Article II:2(a) of the GATT. 
 
                                                      
38 Exhibit CEGH-7, page 93.  Exhibit CEGH-10, page 97. 
39 Exhibit CEGH-9, pages 8 and 9, second article. 
40 Articles 5, 6 and 7 of Tariff Reform Law No. 146-00, Exhibit CEGH-22. 
41 See Exhibit CEGH-27.  WT/DS415/R/Add.1 
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  ANNEX E-2 
 
EXECUTIVE SUMMARY OF THE SECOND WRITTEN SUBMISSION OF 
THE DOMINICAN REPUBLIC 
 
 1. The Dominican Republic affirms that Article XIX of the GATT and the Agreement on 
Safeguards ("AS") do not apply to the measures at i ssue.  This makes it impossible to evaluate the 
consistency of these measures with the disciplines cite d.  In addition, the Dominican Republic affirms 
that, even if these provisions were applicable, the measures at issue are fully consistent with them. 
1. ARTICLE XIX OF THE GATT AND THE AGREEMENT ON SAFEGUARDS DO 
NOT APPLY TO THE PRESENT DISPUTE 
2. The applicability of these provisions depends on obj ective criteria (namely, the fact that the 
measures imply the suspension of an obligation or the withdrawal or modification of a concession), 
without decisive subjective criteria such as statements by the national authorities. 
1.1 Even if it is considered that the measures at issue constitute suspension of Article I:1 of 
the GATT, they do not fall within the scope of Article XIX of the GATT and the Agreement on Safeguards 
 
3. Article I:1 of the GATT is not one of the "obl igations" that may be suspended according to 
Article XIX:1(a).  Consequently, even if it is conclu ded that the measures at issue suspend Article I:1, 
this does not mean that they constitute safe guards.  There are five reasons for this. 
4. Firstly, safeguards must be applied without discrimination (according to Article 2.2 of the 
AS), with Article 9.1 of the AS being an excepti on to this non-discriminatory application.  To 
consider that Article XIX of the GATT allows the suspension of Article I:1 would amount to a 
contradiction between the WTO Agreements.  Sec ondly, this is confirmed by the history of the 
Uruguay Round negotiations, which led to the inclusion of Article 2.2 of the AS.  Thirdly, Article I:1 
of the GATT is not the obligation whose effect is in creased imports that cause  serious injury in the 
terms of the first sentence of Article XIX:1(a) of the GATT and, hence, is not the obligation that can 
be suspended in the terms of the second sentence of Ar ticle XIX:1(a).  Fourthly, Article 9.1 of the AS 
requires the previous existence of a safeguard measure in order to apply, so it is illogical to claim that 
reference to Article 9.1 of the AS is in itself indica tive of the existence of a safeguard in the terms of 
Article XIX of the GATT.  Fifthly, and finally , the Dominican Republic draws attention to the 
illogical interpretation put forward by the co mplainants:  imposing a safeguard measure ( erga omnes , 
as required by Article 2.2 of the AS) consisting of the suspension of Article I:1 of the GATT, which 
could only result from the exemption provided in Ar ticle 9.1 of the AS, would mean that the only 
content of the safeguard measure would be the exemption of certain countries from its scope;  it 
would be a safeguard measure that woul d only provide for its non-application. 
1.2 The measures at issue do not suspend Articl e II:1(b) of the Agreement on Safeguards as 
they cannot be classified as "other duties or charges" 
 
5. The complainants contend that the objective of the measures was to create a "second tariff" to 
be applied in addition to the common tariff appli cable (MFN).  These measures, however, in fact 
replace this tariff, as recognized by the complainan ts, contradicting themselves, so they constitute WT/DS415/R/Add.1 
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Page E-12   
  "ordinary customs duties";  if they were other ta riffs, they could not replace the tariff previously 
applicable but only be added to it. 
6. Mere modification of the tariff rate is not equi valent to the imposition of "other duties and 
charges", and this cannot be concluded either from th e fact that the tariff wa s adopted as the result of 
an investigation initiated at the request of the dom estic industry (as the Appellate Body indicated in 
Chile – Price Band System ).  As the measures did not affect the tariff in any other way, they cannot be 
termed "other duties or charges", and consequently  the tariff resulting from the measures, as indicated 
in India – Additional Import Duties , naturally constitutes an ordinary customs duty. 
7. The complainants also contend that, as Law No . 146-00 provides that existing customs duties 
can only be modified by means of a legislative act , the measures at issue are not ordinary customs 
duties but "other duties or charges" because they we re established by means of an administrative act.  
This statement overlooks Law No. 1-02, which allows a temporary increase in the tariff determined by 
means of an administrative act, and also that the type  of act created by the Members in the dispute is 
irrelevant from the point of view of WTO law. 
8. Lastly, the fact that the duties applied by a Member do not appear in its schedule does not 
prevent such duties from being ordinary customs du ties.  As the measures at issue are not "other 
duties and charges", they come under the category of "ordinary customs duties" and as they apply at a 
rate lower than the pre-existing ordinary MFN tariff,  they are consistent with the first sentence of 
Article II:1(b) and do not constitute safeguards. 
1.3 The Agreement on Safeguards does not apply to the investigation prior to the adoption 
of the measures at issue 
 
9. The complainants contend that Article XIX of the GATT and the AS apply to the 
investigation that preceded the adoption of the meas ures at issue, even though these do not constitute 
safeguard measures.  The Dominican Republic consid ers that dissociating the investigation from the 
measures is an artificial distinction and is meaningless. 
10. This is shown by the relevant provisions of the AS.  Firstly, according to Article 1, the 
applicability of AS rules presupposes the application of a safeguard measure.  Secondly, Article 3.1 
does not impose any investigation obligation prior to the adoption of measures that are not safeguards.  
Lastly, this is confirmed by Article 11.1(a) because it is when the investigation is concluded that it 
becomes certain whether or not a safeguard measure is to be adopted, so it makes no sense to subject 
investigations that do not result in the adoption of such a measure to the disciplines in Article XIX.  
The contrary interpretation of this Article put forward by the complainants is contradicted by 
Article 11.1(c), which specifically excludes the ap plication of the AS to measures, such as the 
measures at issue, that are consistent with the GATT. 
11. The Dominican Republic affirms that it is not  a question of "seek to adopt" a safeguard 
measure in the terms of Article 11.1(a) of the AS, as confirmed by the facts:  at a very early stage in the investigation it became clear that the measure  would not be an increase above the ceiling bound 
rate, as the complainants themselves mentioned prio r to the adoption of the provisional measure.  In 
any event, the investigation is ex empt according to Article 11.1(c). 
12. Be that as it may, the Panel should abstain from reaching findings regarding the claims 
concerning the investigation stage, as this is not required in order to ensure a positive settlement of 
this dispute, in conformity with Article 3.7 of the DSU.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page E-13 
  
  13. The Dominican Republic also notes that the complainants request a recommendation on 
abstention from applying safeguard measures, whereas such a solution is not a possibility afforded by 
the WTO dispute settlement mechanism. 
2. THE MEASURES AT ISSUE IN THE LIGHT OF ARTICLE XIX OF THE GATT 
AND THE AGREEMENT ON SAFEGUARDS 
2.1 The definition of the domestic industry is fully consistent with the requirements in the 
Agreement on Safeguards 
 
14. In the first place, the determination of the product under investigation was clear and 
unequivocal, sufficient and reasoned, consistent with  the AS, contrary to what is asserted by the 
complainants.  As the parties agreed that ther e was no need to prove likeness or a competitive 
relationship between the articles comprising the prod uct under investigation (as the complainants did 
not claim this) and having taken into account the questions posed by certain participants, the 
complainants' assertions regarding th is determination do not stand up. 
15. Secondly, the determination of the like a nd directly competitive domestic product was 
reached by the Commission after extensive considera tion, even bearing in mind that it is obvious that 
the product under investigation and the like domest ic product are directly competitive inasmuch as 
they are identical. 
16. Contrary to the complainants' interpretation, the production process was not a decisive factor 
in defining the like domestic product, but was one of the criteria used to identify the domestic industry. 
17. The Dominican Republic emphasizes that the like domestic product does not include flat 
tubular fabric, contrary to what the complainants appear to contend.
1 
18. Thirdly, in order to determine the domestic industry, it was not necessary to make a 
determination of likeness or direct  competition between the input and th e finished product, contrary to 
what is asserted by the complainan ts, because the determination of the domestic product used a basis 
for determining the domestic industry is id entical to the product under investigation. 
19. Article 4.1 itself of the AS specifically envisages the possibility that the domestic industry 
does not cover all producers of the like product, as confirmed by WTO case law.2  In order to define 
the domestic industry, the Commission considered  all the producers mentioned by FERSAN in its 
domestic producer form3 and then excluded, by means of reasoned arguments, those producers that 
showed no interest in taking part in the proce dure, those that were not producers (according to 
Article 4.1(c) of the AS and WTO case law4) and Textiles Titán. 
20. Textiles Titán was excluded because productio n of the product under consideration 
represented only a very small percentage of its ac tivities compared to import and conversion.  The 
                                                      
1 Replies by the complainants to questions by the Panel after the first substantive meeting, 
paragraphs 222 and 223. 
2 Panel Report, US – Wheat Gluten , paragraph 8.54, and Panel Report, Argentina – Poultry 
Anti-Dumping Duties , paragraph 7.341. 
3 Final Technical Report, pages 49-52.  Exhibit RDO-10. 
4 Panel Report, EC – Salmon (Norway) , paragraph 7.115, footnote 289. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
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Page E-14   
  omission of such an exclusion possibility in Article 4.1(c) of the AS, unlike the 
Anti-Dumping Agreement, should not be seen in a dispositive sense.  This is reaffirmed by 
Article 4.2(a) and (b) of the AS, which require an evaluation of injury and causal link based on 
reliable data that cannot be obtained from the aggr egate data for enterprises which both produce and 
import the product under consideration. 
2.2 The Dominican Republic correctly evaluate d the increase in imports and made reasoned 
determinations in this respect 
 
21. Contrary to what is asserted by the compla inants, the Dominican Republic made a reasoned 
and adequate determination of the increase in  imports based on data for the investigation 
period (2006-2009).  The decrease in imports in 20 09 did not prevent a finding of an increase in 
imports because it was incidental and cyclical, as stated by the Commission, in accordance with 
Article 2.1 of the AS. 
22. The Commission encountered further support for th is position in the data for 2010, but did not 
base itself on these, contrary to what is claimed by  the complainants;  this position had already been 
reached at the preliminary stage when  the data for 2010 were not yet available.  This quest for further 
confirmation of the findings using the most recent data is supported by WTO case law.
5 
23. The aforementioned findings sufficed for complianc e with Article 2.1 of the AS, contrary to 
what is claimed by the complainants , not having been substantiated by ex post  explanations (the 
2010 data, according to the complainants);  on the one hand, the reference to the 2010 data was 
included in the final determination ( ex ante ) and, on the other, these data were not used for 
substantiation purposes but for confirmation. 
2.3 The determination of serious injury is consistent with the Dominican Republic's 
obligations under Article XIX of the GATT and the Agreement on Safeguards 
 
24. Firstly, the complainants' assertion that the Co mmission based itself solely on the "bags" 
segment when evaluating the indicators of injury is  not substantiated;  the evaluation was made in 
respect of the like domestic product as a whole.6  Moreover, the Commission was neither obliged to 
make separate evaluations for each segment of the industry7, nor to include only identical or similar 
products in the definition of the product under investigation.8 
25. Secondly, the Dominican Republic was entitled to base its determination of serious injury on 
the data concerning the "bags division" in its en tirety, which it did because it was the smallest group 
of products for which there was audited informatio n, and includes the domestic like product.  This 
method is consistent with Article 4.2(a) of the AS, which requires that the factors evaluated be 
objective and quantifiable, and is envisaged in  Article 3.6 of the Anti-Dumping Agreement. 
                                                      
5 Panel Report, Argentina – Footwear (EC) , paragraph 8.160, confirmed by the Appellate Body, 
Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paragraph 7.64. 
6 Final Technical Report, page 69.  Exhibit RDO-10. 
7 Appellate Body Report, US – Hot-Rolled Steel , paragraphs 190 and 204;  first written submission of 
the Dominican Republic, paragraphs 350 to 354. 
8 Panel Report, US – Softwood Lumber V , paragraph 7.157;  see also Panel Report, EC – Salmon 
(Norway) , paragraphs 7.45 and 7.68.  WT/DS415/R/Add.1 
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  26. Contrary to what is asserted by the complainants, not only is there no obligation to restrict the 
evaluation solely to the product intended for the dom estic market, excluding the exported product, but 
such an exclusion is not even permitted.
9 
27. Thirdly, and finally, the depreciation costs were  correctly included in the production cost used 
to evaluate profitability.  Although the comp lainants assert that costs should be ascribed pro rata , in 
accounting (and according to WTO case law10) the costs used to evaluate profitability are all those 
associated with the production and sale of the product in question, not only tho se of direct benefit.  
The "bags division's" audited profit and loss stat ements, on which the Commission based itself when 
evaluating profitability11, show that the depreciation costs were correctly ascribed. 
2.4 The "parallelism" theory does not appl y when imports from developing country 
Members are excluded, in accordance with Ar ticle 9.1 of the Agreement on Safeguards 
 28. The scope of the "parallelism" theory is limite d to the context of customs unions and does not 
apply in general, as has been attested by WTO case law.
12  Unlike what occurred in previous disputes, 
the exclusion of imports from application of the safe guard measure is based on Article 9.1 of the AS, 
an explicit exemption from the scope of application  of a safeguard measure (Article 2.2 of the AS) 
but not from the scope of the safeguards investigation  (Article 2.1 of the AS).  Accordingly, the 
reference to the "product … imported" in Article 2.2 of the AS includes all imports, except those 
covered by Article 9.1, whereas the "product … impo rted" in Article 2.1 of the AS does not include 
exemptions;  when the exemption in Article 9.1 of the AS is applied, the requirements concerning the 
investigation (and all the evaluations  and determinations it involves) must be fulfilled for all imports, 
irrespective of whether or not some of them ar e subsequently excluded from application of the 
measure in accordance with Article 9.1 of the AS. 
29. This position does not lead to unjus tified results, prevented by the de minimis  thresholds 
imposed by Article 9.1 of the AS, which require that the impact of the imports exempted may not be significant or distort the determinations of the increase in imports and serious injury. 
30. Concerning the non-attribution requirement, whic h requires that the correct attribution of 
injury take into account the effects of the in crease in imports and not "other factors", the 
Dominican Republic points out that imports from deve loping countries are not factors "other than the 
imports", on the basis of Article 2.1 of the AS, notwithstanding their subsequent exemption from 
application of the measure. 
3. CONCLUSION 
31. Based on the foregoing, the Dominican Republic re quests the Panel to find that the measures 
at issue are not covered by the scope of Article  XIX of the GATT and the Agreement on Safeguards 
or, alternatively, that they are consistent with th ese provisions, and to reject all the claims made by the 
complainants. 
_______________ 
 
                                                      
9 Appellate Body Report, US – Hot-Rolled Steel , paragraph 190. 
10 Panel Report, EC – Salmon (Norway) , paragraph 7.483. 
11 Exhibits RDO-13, RDO-14 and RDO-15. 
12 Appellate Body Report, US – Wheat Gluten , paragraph 96, and Argentina – Footwear (EC) , 
paragraph 114.  WT/DS415/R/Add.1 
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 Page F-1 
  
  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/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
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Page F-2   
  ANNEX F-1 
 
EXECUTIVE SUMMARY OF THE OP ENING ORAL STATEMENT OF 
THE DOMINICAN REPUBLIC 
 
 
I. PRELIMINARY OBJECTIONS TO THE CLAIMS RELATING TO THE NEED FOR 
THE MEASURES, ARTICLE I.1 OF THE GATT AND ARTICLE II.1 OF THE GATT 
1. The Dominican Republic notes that among the clai ms not covered by the Panel's terms of 
reference because they were not the subject of cons ultations are those containe d in subparagraphs (i), 
(l) and (m) of the request for the establishment of a panel. 
2. With regard to these claims, the complainants contend that the Dominican Republic did not 
prove that its right of defence was affected.
1  The Dominican Republic points out that the effect on 
this right is a criterion followed when it is consid ered that a request for the establishment of a panel 
may be insufficient, in the light of Articl e 6.2 of the Dispute Settlement Understanding2, and that it 
did not claim that the request for the establishment of a panel was insufficient  but rather that 
no consultations on these claims were held pur suant to Article 4 of the Dispute Settlement 
Understanding.  The failure to hold consultations excludes these claims from the Panel's terms of 
reference, irrespective of whether or not the Do minican Republic's right of defence is affected.3 
3. Secondly, the complainants assert that the cr iterion of a change in the essence would not 
apply to this dispute as it has been used fo r objections to the inclusion of additional measures  in the 
request for the establishment of a panel, but not  for objections to the inclusion of additional legal 
bases .4  Their arguments, however, disregard Appellate Body case law in Mexico – Anti-Dumping 
Measures on Rice5 and the Panel in China – Publications and Audiovisual Products .6 
4. Thirdly, the claimants contend that, even if the test of a change in the essence did apply, it 
was not used because the claims concerning Articles I.1, II.1(a) and II.1(b) of the GATT and Article 5.2 of the Agreement on Safeguards reasona bly arose from the legal bases of the request for 
the holding of consultations. 
5. As to the claim concerning the most-favoured-n ation obligation based on Article I.1 of the 
GATT, the complainants contend that it arises from their claim concerning Article 2.2 of the 
Agreement on Safeguards, as set out in the claim in subparagraph (g) of the request for consultations.
7  
This claim was, however, included solely in case th e measures at issue did not constitute safeguard 
measures according to the terms of Article XIX of the GATT.8  In fact, the aforementioned 
                                                      
1 Second written submission of the compla inants, paragraphs 47-50, 64 and 68. 
2 Ibid., see footnotes 32 and 33. 
3 First written submission of the Dominican Republic, paragraphs 51-58. 
4 Second written submission of th e complainants, paragraph 52. 
5 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paragraphs 137 and 138.  The 
Panel Report on EC – Fasteners (China) , paragraphs 7.507 and 7.508, applied this criterion of a change in the 
essence when considering that Article 6.9 of the Anti-Dumping Agreement was not included in the Panel's terms of reference as it had not been  the subject of consultations. 
6 Panel Report, China – Publications and Audiovisual Products , paragraph 7.115. 
7 Replies of the complainants to the questions from the Panel, paragraph 158. 
8 Oral statement of Costa Rica, El Salvador, Guatem ala and Honduras at the first substantive meeting 
of the Panel, paragraph 37.  WT/DS415/R/Add.1 
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 Page F-3 
  
  subparagraph (g) in no way relates to the claim conc erning Article I.1 of the GATT in the request for 
the establishment of a panel but only refers to the non-exemption of certain developing countries 
pursuant to Article 9.1 of the Agreement on Safeguards. 
6. The complainants also argue that the claim relating to Article II.1(a) and II.1(b) of the GATT 
is based on Article XIX of the GATT because the increase  in imports must be a result of the effect of 
the tariff concessions subject to Article II of the GATT.
9  They do not, however, specifically indicate 
to which claim in the request for consultations they are referring.10  Moreover, the complainants have 
not indicated how this legal basis could arise fro m Article XIX as the specific legal basis for any 
claim contained in the request for consultations. 
7. It is obvious that the claim concerning the a lleged omission of findings and conclusions on 
the need for measures was not the subject of cons ultations pursuant to Article 4.4 of the Dispute 
Settlement Understanding and does not stem from any legal basis contained in the request for 
consultations.  Although Article 5.1 of the Ag reement on Safeguards is indeed cited in 
subparagraph (g) of the request for consultations, the claim only refers to the alleged failure to comply 
with the "parallelism" requirement. 
8. The complainants indicate that the claims concerning Articles I and II of the GATT are based 
on the reservation clause in the request for consultations.11  Nevertheless, the fact that the measures at 
issue do not constitute safeguard measures under Article XIX of the GATT is not information 
obtained during the consultations, as required by WTO case law12 and the reservation clause 
mentioned by the complainants because the latter were already well aware of the nature of the 
measures in question before the consultations.13 
9. In the light of the foregoing, the Dominican Republic argues that the claims included in 
subparagraphs (i), (l) and (m) of the request for the establishment of a panel are not included within 
the Panel's terms of reference. 
II. ADDITIONAL REASONS WHY A SAFEGUARD MEASURE MAY NOT CONSIST 
OF THE SUSPENSION OF ARTICLE I.1 OF THE GATT 
10. In the complainants' view, a safeguard measure could imply the suspension of Article I.1 of 
the GATT.14  This statement is not supported by Article  2.2 of the Agreement on Safeguards or any 
other provision. 
11. In addition to the reasons already explained15, it is relevant to quote the interpretative note to 
Article 40 of the Havana Charter concerning Emer gency Action on Imports of  Particular Products, 
which provides the following:  " It is understood that any suspension, withdrawal or modification 
                                                      
9 Ibid., paragraph 159. 
10 Ibid., footnote 89. 
11 Second written submission of th e complainants, paragraph 58. 
12 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paragraphs 137 and 138;  
Panel Report, China – Publications and Audiovisual Products , paragraph 7.115. 
13 Oral statement of the Dominican Re public at the first substantive meeting of the Panel, 15 June 2011, 
paragraph 17;  closing statement of the Dominican Republic at the first substantive meeting of the Panel, 
16 June 2011, paragraph 16;  replies of the Dominican Republic to questions from the Panel, question 51. 
14 Reply of the complainants to the questions from the Panel, paragraph 77. 
15 Second written submission of the Dominican Republic, paragraphs 8-14. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page F-4   
  under paragraphs 1 (a), 1(b) and 3(b) must  not discriminate against imports from any 
Member country … ".
16 
12. The foregoing logic has applied to Article XIX of the GATT since the very first days it came 
into force.  When addressing Japan's request for accession, the Ad Hoc Committee on Agenda and 
Intersessional Business rejected the possible extensi on of this Article to constitute suspension of 
Article I.1.17 
13. This was also supported by John H. Jackson already in 1969:  " Although nowhere expressly 
mentioned in the language, the preparatory work and subsequent GATT practice make it clear that 
the withdrawal or suspension shall be on a non-discriminatory MFN basis. "18 
14. Consequently, Article XIX of the GATT never envisaged the possibility of suspension of 
Article I.1 of the GATT. 
III. THE ALLEGED NATURE OF "OTHER IMPORT DUTIES AND CHARGES" IN 
THE MEASURES AT ISSUE 
15. The complainants use four arguments to claim th at the measures at issue are inconsistent with 
Article II.1(a) and II.1(b) of the GATT as they co nstitute "other duties and charges" within the 
meaning of Article II.1(b), second sentence, of  the GATT and the Dominican Republic had not 
included them in the relevant column in its Schedule of Tariff Concessions. 
16. First of all, the complainants contend that, as th ey constitute a tax other than ordinary customs 
duty, the measures in question are "other duties an d charges".  This premise does not, however, mean 
that these are "other duties or charg es".  Quite the contrary, it indicates  that the increased tariff is an 
ordinary customs duty because it replaces the tariff no rmally applicable:  the only duty paid currently 
on imports of polypropylene bags and tubular fabr ic is the 28 per cent duty, in other words, the 
MFN tariff increased on the basis of the measures at issue. 
17. Secondly, the complainants state that the fact  that the duty imposed on the basis of the 
measures at issue applies as an alternative shows th at the measures resulted in the application of other 
duties or charges.  On the contra ry, as underlined by the European Un ion in its written submission, the 
fact that the measures apply in place of  and not cumulatively with  the MFN tariff normally applicable 
is proof that these are not "other duties and charges".19 
18. Thirdly, the complainants cite the Tariff Re form Law No.146-00, which provides that tariffs 
can only be amended by means of a legislative act, and from this infer that, as the measures at issue 
were established through an administrative act, they are "other duties and charges".  The complainants 
disregard Article 73 of Law No.1-02, which allows temporary increases in the tariff established by the law through application of a safeguard measure.
20 
                                                      
16 United Nations Conference on Trade and Employment, held in Havana, Cuba, Final Act and related 
documents, page 113.  http://www.wto.o rg/english/docs_e/legal_e/havana_e.pdf. 
17 Ad Hoc Committee on Agenda and Intersessional Business, Report on the Accession of Japan, 
13 February 1953, L/76, Exhibit RDO-27, paragraphs 6 and 7. 
18 John H. Jackson, World Trade and the Law of GATT , The Michie Company Law Publishers, 
Charlottesville, Virginia, 1969, page 564.  Exhibit RDO-28. 
19 Third party submission by the European Union, 16 May 2011, paragraph 16. 
20 Exhibit RDO-11.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page F-5 
  
  19. Lastly, the complainants cite some communi cations from which they infer that these are 
"other duties and charges".
21  These communications do not, howeve r, lead to the conclusion that 
these are "other duties and charges", and the complain ants have not indicated how they reached such a 
conclusion. 
20. It would appear that the complainants ar e equating the safeguard measures with trade 
remedies (anti-dumping and counter vailing measures).  In fact, such a comparison is wrong because 
safeguard measures suspend obligations and do not lead to the imposition of other additional duties - 
as is the case for anti-dumping duties or counterv ailing measures.  This emerges clearly from a 
comparison of Articles VI.2 and XIX.1(a) of the GA TT.  It is also the reason why safeguards are not 
listed in Article II.2(b) of the GATT togeth er with anti-dumping and countervailing duties. 
IV. CLAIMS RELATING TO THE DEFINI TION OF THE DOMESTIC INDUSTRY 
21. First of all, the complainants question the expl anation of the definition of the product subject 
to investigation.  They do not, however, make any claim regarding the determ ination of the imported 
product subject to investigation22;  that is to say, the determination would be valid but not its 
explanation.  The Dominican Republic would also lik e to clarify that neither in case law nor in the 
Agreement on Safeguards are there any groun ds supporting the complainants' statement23 that the 
Panel should only base itself on the published reports on the case.24 
22. The Dominican Republic argues that the explanations given by the Commission on 
determination of the product subject to investiga tion are sufficient and comply with Articles 3.1 and 
4.2(c) of the Agreement on Safeguards, that there ar e no legal grounds for re quiring an "adequate and 
reasoned explanation of the reasons for the tariff classification"25, and that the complainants have not 
explained how such an obligation arises from the aforementioned Articles.  Likewise, it is not clear why Articles 3.1, last sentence, and 4.2(c) of the Agreement on Safeguards would require that the 
proposal by the participating parties not to deal with tubular fabric and polypropylene bags as a 
single product would have to be addressed. 
23. The complainants quote the Appellate Body report in EC – Civil Aircraft  to claim that the 
Panel was obliged to review the definition of the pro duct subject to investigation.  This finding is not 
relevant, however, as the Appellate Body differe ntiated between definitions under Part III of the 
Agreement on Subsidies and Countervailing Measures and the definition of the product investigated 
in accordance with Part V of the same Agreement and the Anti-Dumping Agreement.  In other words, 
the case law does not relate to the definition of a product subject to investigation in a national 
safeguards procedure.
26 
24. Secondly, the complainants allege that determ ination of the likeness relationship between the 
domestic product and the imported pr oduct subject to investigation was composed of an implicit 
assertion of such a relationship.  The Dominican Rep ublic draws attention to paragraphs 163 to 181 of 
its first written submission and to the Commission's Preliminary Technical Report, page 58, where the 
                                                      
21 Second written submission of the co mplainants, paragraphs 303 and 304. 
22 Ibid., paragraphs 85 and 106. 
23 Replies of the complainants to questions from the Panel, paragraph 18. 
24 See the Panel Reports in US – Wheat Gluten , paragraphs 8.19 and 8.21;  and Argentina – Preserved 
Peaches , paragraph 7.6. 
25 Ibid., paragraph 85. 
26 Appellate Body Report, EC and certain member States – Large Civil Aircraft , paragraph 1133. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
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  determination of the like dom estic product is reached, inter alia , on the basis of physical and chemical 
characteristics, tariff headings, and the production process. 
25. It should be pointed out that the fact that th e domestic product was defined as tubular fabric 
and polypropylene bags manufactured from resin onl y indicates a physical characteristic that also 
applies to the product subject to investigation.  Although the production process plays an important 
role in the definition of the domestic industry, it was not preponderant when determining the like 
domestic product, where it was one of several criteri a examined.  The fact that the Commission, when 
defining the domestic industry, based itself on a series of producers that included Textiles Titán S.A., 
Filamentos del Caribe S.A., Agro-arro cera S.A. and Fibras Dominicanas CxA.
27, shows that the 
definition of the like domestic product incl udes bags obtained from tubular fabric. 
26. Given the identical scope of the definitions of th e product subject to investigation and the like 
domestic product (tubular fabric a nd polypropylene bags), the Dominican Republic considers that the 
fact that they are like products, and so are directly competitive, is obvious. 
27. Thirdly, the complainants contend that the Commission failed to follow a logical order of 
analysis when determining the domestic industry, disregarding Appellate Body case law by claiming that the Agreement on Safeguards does not require any particular order when examining reports.
28  
What the Appellate Body stated29, however, only clarified the logical path to be followed when 
examining an issue before one, without seeking to stipulate that there is a mandatory order for 
analysis by national investigating authorities.  Furthermore, there is a logical order in the 
Commission's analysis when defining the product subject to investigation, the like product and the domestic industry.
30 
28. The complainants also question the fact that the Commission considered tubular fabric and 
polypropylene bags to be part of the same do mestic industry without proving that they were 
effectively competitors31, basing themselves on the aforementioned Appellate Body Report.  
Nevertheless, in this Report the Appellate Body did not contend th at it had to be proven that the 
products composing the domest ic industry are like products.32 
29. Fourthly, the complainants claim that certa in categories of producers of the directly 
competitive domestic product were a priori excluded, based on an erroneous interpretation of the word 
"producers" in Article 4.1(c) of the Agreement on Safeguards.33  The Dominican Republic recalls that 
Agroarrocera and Fibras Dominicanas did not ta ke part in the procedure, that FIDECA did not 
produce  the like domestic product (given that it only  transformed imported or locally purchased 
tubular fabric bags)34 and that Textiles Titán mostly transforme d imported tubular fabric.  It should be 
pointed out that Textiles Titán was excluded from the definition of the domestic industry using the 
provision in Article 26 of Law No. 1-02. 
                                                      
27 Preliminary Technical Report, page 68.  Exhibit RDO-9. 
28 Second written submission of the complainants, paragraph 159. 
29 Appellate Body Report, US – Lamb , paragraph 87.  See also the reply by the Dominican Republic to 
question 102 from the Panel. 
30 First written submission of the Dominican Republic, paragraph 210. 
31 Second written submission of th e complainants, paragraph 98. 
32 Appellate Body Report, US – Lamb , paragraphs 87 and 88. 
33 Second written submission of th e complainants, paragraph 85. 
34 Final Technical Report, pages 51 and 52.  Exhibit RDO-10.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
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  30. The exclusion of Textiles Titán is justified acco rding to the current meaning of the provisions 
in Article 4.1(c) of the Agreement on Safeguard s and the context and case law in the WTO, which 
confirm that it is consistent with the Agreement on Safeguards to consider as "domestic industry" a 
major proportion thereof.
35  Moreover, Article 4.2(a) and (b) provide that investigating authorities 
must base themselves on reliable data.  Where the main activity of an enterprise included in the 
definition of the domestic industry is to import a nd resell the product subject to investigation, the 
investigating authority may find it impossible to sep arate the data relating to the products produced 
from those imported when evaluating the indicators of injury or making the determination of the 
causal link.36 
V. CLAIMS RELATING TO THE DETERMINATION OF THE INCREASE IN 
IMPORTS 
31. The complainants consider that the Dominica n Republic did not prove that there was an 
increase in imports, as required by Article XIX.1(a) of the GATT and Articles 2.1 and 4.2(c) of the 
Agreement on Safeguards because "if … there were no adequate and reasoned explanations regarding 
the definition of the imported product subject to inv estigation, the analysis of increased imports would 
also be invalid, since the investigating authority used in that analysis the same definition of the 
imported product subject to investigation".37  The complainants did not, however, claim that the 
determination of the product subject to investigation was inconsistent per se  and the 
Dominican Republic considers that it constitutes valid grounds for determining the increase in 
imports. 
32. The statement that the Dominican Republic "fa iled to demonstrate that there were adequate 
and reasoned explanations for an increase in imports in absolute terms that w as recent, sudden, sharp, 
and significant"38 is also wrong inasmuch as the Commission: 
- Determined that, despite a 14.6 per cent decrease in 2009, overall during the 
investigation period imports increased by 50.06 per cent.39 
- Indicated that the decline in imports in 2009 was explained by the reduced growth in 
the economy, which led to a 30.3 per cent decrease in imports in comparison with 2008.
40 
- Without extending the investigation period, confirmed the temporary nature of the 
decline in 2009 in the light of the figures for 2010 in the final report, showing that 
                                                      
35 Panel Report, US – Wheat Gluten , paragraphs 8.54-8.56. 
36 See the reply by the Dominican Republic to question 91 from the Panel. 
37 Second written submission of the complainants, paragraph 203. 
38 Ibid., paragraph 210. 
39 Preliminary Technical Report, page 74, Exhibit RDO-9;  Final Technical Report, page 58, 
Exhibit RDO-10. 
40 Preliminary Technical Report, page 80;  Final Tec hnical Report, page 68.  Also:  Central Bank of the 
Dominican Republic, Resultados Preliminares de la Economía Dominicana , January-September 2009, page 12.  
Exhibit RDO-12. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page F-8   
  imports were increasing once again.  It should be noted that the use of data not 
included in the investigation period has been confirmed by case law.
41 
33. The complainants' statement that the Dominican  Republic failed to make findings regarding 
the rate of imports is also wrong as the percenta ge ratio of growth for each year and for the 
investigation period can be found in the Preliminary and Final Technical Reports.42 
                                                      
41 Panel Report, Argentina – Footwear (EC) , paragraph 8.160;  Appellate Body Report, 
Mexico – Anti-Dumping Measures on Rice , paragraph 167.  Also:  second written submission of the 
Dominican Republic, paragraph 88 to 90. 
42 Preliminary Technical Report, page 74 and Final Technical Report, page 58.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page F-9 
  
  ANNEX F-2 
 
EXECUTIVE SUMMARY OF THE OPENING ORAL STATEMENT 
OF THE COMPLAINANTS 
 
 
I. INTRODUCTION 
1. The central tenet of the Dominican Republic's defence is its claim that the provisional and 
definitive measures are not safeguard measures inasmu ch as the 40 per cent tariff was not raised.  To 
us, the reasons why the Dominican Republic ad opted these measures and is today following a 
complex line of argument are quite obvious:  the Do minican Republic sought to protect a particular 
company by means of measures intended to give th e appearance of being consistent with (i) its 
regional free trade agreements (FTAs);  and (ii) the WTO disciplines. 
2. The only option was to apply a WTO safeguard  measure, which is permitted both by the 
WTO disciplines and the regional agreements. 
3. The problem arose when the Dominican Republic decided to state in this dispute that the 
measures are not safeguard measures but a straight forward tariff increase within the limits bound in 
the WTO.  By closing the door to our complaints under the AS, the Dominican Republic opened up 
another door with equally serious legal implications.  Basically, the statement that the measures 
contested are not safeguards immediately involves violation of Articles I and II of the GATT.  
Likewise, if the measures are considered not to  be safeguards consistent with the WTO, the 
Dominican Republic would have to explain on wh at regional legal basis it applies an alleged 
38 per cent tariff ad valorem  on imports that should be subject  to zero tariff under the regional 
agreements.  We are explaining this as background  and as evidence of the existence of safeguard 
measures in the WTO context.  As we have explaine d, this procedure concerns neither violations of 
FTAs nor safeguards of a regional nature. 
II. THE APPLICABILITY OF THE AS AND ARTICLE XIX 
4. We do not think that the opinions expressed by the Dominican Republic solely for the 
purposes of this procedure are supported by the various objective elements indicating that the 
provisional and definitive measures are safeguard measures such as those provided by Article XIX 
and the AS:  (a) these opinions of the Dominican Republic disregard the design, structure and 
architecture of the measures
1;  (b) they are not consistent either with the prior actions  of the 
Dominican Republic;  and (c) the Dominican Republic  is trying to sidestep the fact that, even 
according to its restrictive interpretation based on an  individualistic reading of Article XIX.1(a), the 
provisional and definitive measures imply the suspensi on of obligations under Articles I.1, II.1(a) and 
II.1(b). 
A. SUSPENSION OF ARTICLE I.1 OF THE GATT 
5. The Dominican Republic firstly indicates that  the suspension itself which constitutes the 
safeguard measure, and is referred to  in Article XIX.1(a) of the GATT,  cannot refer to Article I.1 of 
the GATT.2  The Dominican Republic does not, however, explain why, if this is the case, 
                                                      
1 Second written submission of the complainants, paragraphs 14-22. 
2 Second written submission of the Dominican Republic, paragraph 9. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
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Page F-10   
  Article XIX.1(a) itself uses the generic term "obligations" and "o bligation" and does not explicitly 
exclude Article I.1 of the GATT from its applica tion.  The Dominican Republic's reference to 
Articles 2.2 and 9.1 of the AS in connection with th is discussion is not very clear and does not enable 
it to be determined what it is claiming.
3  The word "obligation" in Article XIX.1(a) is not qualified by 
the words unless otherwise provided in Article I.1 of the GATT , as the Dominican Republic suggests.  
To paraphrase the Appellate Body, this interpreta tion would imply "read[ing] into the text words 
which are simply not there", which has been prohibited by the Appellate Body.4  L i k e  t h e  
complainants, the European Union5 and the United States6 consider that the word "obligation" in 
Article XIX.1(a) includes the obliga tion in Article I.1 of the GATT. 
6. Secondly, the Dominican Republic's argument is based on semantics when it indicates that the 
discussion on the possibility of applying a selective safeguard has been concluded.7  The application 
of a safeguard measure that excludes imports from particular trading partners is a selective way of 
applying safeguard measures - the measure is app lied to certain origins and not to others.  
Nevertheless, Members have not been prohibite d from making such exemptions, and even the 
Appellate Body itself has recognized that the po ssibility of excluding specific imports from the 
application of a safeguard measure is ope n so there is no need to issue a ruling.8 
7. Thirdly, the Dominican Republic argues that the words "obligations" and "obligation" in the 
first and second part of Article XIX.1(a) refer to th e same thing and therefore "this term cannot refer 
to the most-favoured-nation principle in Article I.1 of the GATT, and cannot be the cause of an 
increase in imports".9  The Dominican Republic does not, however, explain why the increase in 
MFN trade could not involve an increase in imports within the meaning of Article XIX.1(a) of the 
GATT and Article 2.1 of the AS. 
8. Fourthly, the Dominican Republic states that Ar ticle 9.1 implies an obligatory exclusion of 
imports only after a measure has been qualified a saf eguard measure.  Consequently, in its opinion, a 
safeguard measure consisting of the suspension of obligations under Article I.1 of the GATT could 
not exist.  It is clear that the obligation to exempt imports from developing countries pursuant to 
Article 9.1 of the AS does not imply that the word "obligation" in Article XIX of the GATT has to be 
read in the narrow sense, excluding Article I.1 of the GATT.  It appears rather that the 
Dominican Republic is contradicting its argument that the measures in question are not safeguard 
measures. 
9. Fifthly, the Dominican Republic indicates that suspension of Article I.1, together with 
application of Article 2.2 and the exemption mandate in Article 9.1, would imply that the only content 
of a safeguard measure would be the exem ption of certain countries from its scope.10  The obligation 
in Article 2.2 implies that there can be no discrim ination when applying a safeguard measure with 
regard to all the imports subject to investigati on.  This provision does not, however, mention the 
possibility that a safeguard measure allows the exem ption of certain imports.  The Appellate Body has 
also deliberately been silent in this regard.  Consequently, the Dominican Republic's argument that 
                                                      
3 Idem.  
4 Appellate Body Report, India – Quantitative Restrictions , paragraph 94. 
5 Reply by the EU to question 2 from the Panel, paragraphs 9 and 10. 
6 Reply to the United States to question 2 from the Panel, paragraphs 7 to 9. 
7 Second written submission of the Dominican Republic, paragraph 10. 
8 Appellate Body Report, Argentina – Footwear (EC) , paragraph 114. 
9 Second written submission of the Dominican Republic, paragraph 11. 
10 Ibid., paragraph 12.  WT/DS415/R/Add.1 
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  Article 2.2 would cease to apply to any safeguard that implies suspension of Article I.1 lacks 
substance. 
B. S
USPENSION OF ARTICLE II.1(a)  AND II.1(b),  SECOND SENTENCE , OF THE GATT 
10. The Dominican Republic now indicates that the provisional and definitive measures replace 
the pre-existing ordinary MFN tariff;  in other wo rds, they replace what in Spanish is called the 
"derecho de aduana propiamente dicho " (in English, the "ordinary customs duty") and the 
complainants wrongly consider that this is rather a "second tariff".11  The Dominican Republic has 
explained that these measures are not the same and do not have the same characteristics  as the 
ordinary MFN tariff or ordinary customs duty. 
C. THE APPLICABILITY OF THE AS AND ARTICLE XIX  TO THE INVESTIGATION AND 
PRELIMINARY AND DEFINITIVE DETERMINATIONS  
11. The Dominican Republic affirms that a safeguards investigation can only be subject to certain 
requirements if it actually leads to the adoption of a safeguard measure.12  The Dominican Republic 
disregards the Appellate Body's statement to th e effect that there are two main factors when 
interpreting the AS:  (i) the determination of the ri ght to apply a safeguard measure, and (ii) the way 
in which the safeguard measure is applied.13  Failure to impose a safeguard measure does not 
invalidate the determination a Member may make re garding the right to impose a safeguard measure, 
which may be exercised at any time. 
12. The Dominican Republic contends that it fails to understand how reaching findings regarding 
the claims related to the investigation that did not  lead to the adoption of measures would help in 
reaching a positive settlement of this dispute.14  This is a new request by the Dominican Republic, that 
the Panel should abstain from reaching findings on th is matter.  We do not consider that such a 
request is admissible. 
13. As found by the Appellate Body in US – Corrosion-Resistant Steel Sunset Review , "… any 
act or omission attributable to a WTO Member can be a measure of that Member for purposes of dispute settlement proceedings".
15  Accordingly, if the measures in question include the investigation 
and the specific determinations cited in this Panel's terms of reference, and there are specific claims 
about the way in which the investigation was conduc ted and these determinations were reached, there 
is then no reason why the Panel should abst ain from reaching the relevant findings. 
III. THE PRELIMINARY OBJECTIONS OF  THE DOMINICAN REPUBLIC 
14. The complainants responded in full to the pre liminary objections at the first substantive 
meeting16 and once again in their replies to the questions from the Panel.17 
15. With regard to the objections against the claims relating to Articles I.1, II.1(a) and II.1(b) of 
the GATT, it is pertinent to repeat that  these are not new claims, as argued by the 
                                                      
11 Idem.  
12 Ibid., paragraph 27. 
13 Appellate Body Report, US – Line Pipe , paragraph 84. 
14 Second written submission of the Dominican Republic, paragraph 44. 
15 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paragraph 81. 
16 Opening oral statement by the co mplainants at the first substantive meeting, paragraphs 29-45. 
17 Replies by the complainants to questions 82, 85 and 86. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page F-12   
  Dominican Republic.
18  The complainants included in the requ est for consultations a reservation that 
clearly allowed subsequent inclusion in the request for the establishment of a panel of claims relating 
to the GATT 1994, as was in fact done.  Based on this reservation and on the discussions during the 
consultations, the complainants reformulated their arguments and included in the request for a panel 
alternative claims in conformity with the GATT 1994 relating to the most-favoured-nation principle 
and import charges other than customs duty.  As  confirmed by Panama, the issues relating to 
Articles I.1, II.1(a) and II.1(b) of the GATT were indeed discussed during the consultations. 
16. The Dominican Republic has failed to prove how the alleged procedural defects have affected 
its right of defence.19  The complainants have also rebu tted the Dominican Republic's statement 
regarding the supposed change in the essence of the claims caused by the alleged inconsistency 
between the request for consultations and th e request for the establishment of a panel.20 
IV. THE DEFINITION OF THE DOMESTIC INDUSTRY 
17. The Dominican Republic has not so far identified the paragraphs in its resolutions or reports 
in which the adequate and reasone d findings and conclusions on the definition of the imported product 
subject to investigation are to be found.  On the c ontrary, it simply falls back on mere statements that 
do not reflect the reasoning or value judgement on the issue.21 
18. The Dominican Republic asserts that the production process does not form part of the 
definition of the like domestic product, but was a d ecisive criterion when identifying the domestic 
industry.22  With this statement, the Dominican Repub lic is recognizing that when it defined the 
domestic industry it based itself on criteria other th an the nature of the domestic and imported 
products and the nature of like or directly competitive products.  Already in US – Lamb , the 
Appellate Body considered that this criteri on was not acceptable when defining the domestic 
industry.23 
19. The Dominican Republic also mentions that Article 4.1(c) of the AS provides for the 
possibility of not taking into account all the domestic producers but only a major proportion.24  
Although Article 4.1(c) does allow for this possib ility, what is certain is that in this case the 
Dominican Republic decided a priori to exclude cer tain "transformers" which it considered did not 
produce a domestic product.25 
20. Moreover, the Dominican Republic excluded a producer which was at the same time an 
importer, even though Article 4.1(c) does not  cover the eventuality of such exemption.26  As can be 
seen, the Dominican Republic seeks to  read into Article 4.1(c) rights that do not exist.  Unlike the 
Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures, 
Article 4.1(c) of the AS does not allow for the possi bility of a priori exemption of certain types of 
producers if these producers produce the like or direc tly competitive product.  Nevertheless, only once 
                                                      
18 First written submission by the Dominican Republic, paragraph 88. 
19 Second written submission of the complainants, paragraphs 47-50. 
20 Ibid., paragraphs 51-60. 
21 Second written submission of the Dominican Republic, paragraphs 58-60. 
22 Ibid., paragraphs 62 and 63. 
23 Appellate Body Report, US – Lamb , paragraphs 90 and 94. 
24 Second written submission of the Dominican Republic, paragraph 69. 
25 Ibid., paragraph 73. 
26 Ibid., paragraph 77.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page F-13 
  
  all the producers producing the like or directly comp etitive product have been taken into consideration 
does Article 4.1(c) allow consideration of a major proportion rather than all of them. 
21. Lastly, the Dominican Republic argues that the c ontext of Article 4.1(c) of the AS endorses 
the possibility of basing oneself solely on a major proportion of the domestic industry inasmuch as the 
investigating authority must base itself on relia ble data and collecting information from producers 
involved in other activities such as import and resal e would raise problems in separating out the data 
concerning economic activities that are not rela ted to the products produced by the producers.
27  The 
Dominican Republic's argument is no justification for excluding certain producers from consideration 
of the domestic industry.  The investigating author ity is obliged to process and separate information 
relevant to the purposes of the inv estigation.  Using the same argument, it could be argued that any 
enterprise engaged in activities parallel to productio n of the like or directly competitive product could 
be excluded from the investigating authority's examin ation.  This interpretation cannot be sustained. 
V. UNFORESEEN DEVELOPMENTS AND THE EFFECT OF OBLIGATIONS 
INCURRED UNDER THE GATT 
22. The Dominican Republic mentions that the clause on unforeseen developments in 
Article XIX(a) does not constitute a binding obligation.28  The complainants have extensively rejected 
this defence based on Appellate Body case law.29 
23. As a second line of defence, the Dominican Republic asserts that, even if the unforeseen 
developments clause is binding, its  investigating authority complied with it.  The Dominican Republic 
originally claimed before the Panel that the unf oreseen developments comprised four elements:  
(i) China's accession to the WTO;  (ii) tariff cuts  resulting from free trade agreements;  (iii) the 2008 
economic and financial crisis;  and (iv) the increase in production costs.30  In its replies to the 
questions from the Panel, the Dominican Republic r ecently confirmed that only the first two of these 
elements constituted the alle ged unforeseen developments.31 
24. China's accession to the WTO cannot be cons idered an unforeseen development for the 
Dominican Republic.32  At the time when the WTO Agr eement entered into force for the 
Dominican Republic (i.e. on 9 March 1995), the ne gotiations regarding China's accession were 
already under way, having begun in 1987. 
25. The complainants also explained why the tari ff cuts under free trade agreements are not an 
unforeseen development.33  As the purpose of free trade areas is to achieve deeper liberalization than 
that within the WTO framework, it is not accepta ble for the Dominican Republic to argue that its 
voluntary decision to implement tariff cuts under su ch agreements is an unforeseen development. 
                                                      
27 Ibid., paragraph 79. 
28 First written submission of the Dominican Republic, paragraphs 258-293. 
29 Opening oral statement. 
30 First written submission of the Dominican Republic, paragraphs 287-289. 
31 Reply by the Dominican Republic to question 114 from the Panel. 
32 Second written submission of the complainants, paragraphs 176-184. 
33 Ibid., paragraphs 185-190. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page F-14   
  26. In addition, in the relevant reports and reso lutions there is no mention whatsoever of the 
logical connection  which, according to the Appellate Body, mu st exist between the two events and the 
alleged increase in imports of polypr opylene bags and tubular fabric.
34 
27. The complainants also contend that the Domi nican Republic did not identify the relevant 
obligations incurred under the GATT and did not explai n how those obligations resulted in the alleged 
increase in imports, as required by Article XIX.1(a).35  In response to a question from the Panel, the 
Dominican Republic indicated that page 86 of the preliminary report supposedly contained 
identification of the corresponding tariff concessions.36  We reiterate that nowhere in this paragraph 
does the investigating authority e xplicitly indicate that the alleged increase in imports was the result 
of obligations incurred under the GATT.37 
VI. THE ALLEGED INCREASE IN IMPORTS 
28. The investigating authority established that th ere was a "marked decline" in the trend in 
imports38, but did not explain sufficiently and adequately why, despite a decline of such magnitude up 
to the end of the investigation period, here was an  increase in imports in the form described by the 
Appellate Body. 
29. The Dominican Republic claims that its conclusion regarding increased imports is valid 
because its technical reports clarify that the dec line in imports was caused by the decrease in the 
country's total imports during 2009.39  Subsequently, the Dominican Republic indicated that this 
decrease in imports was "incidental and temporary".40 
30. As we have previously stated, the investiga ting authority's explanation is insufficient and 
invalid because the overall decline in the Domi nican Republic's imports is a macroeconomic 
occurrence that affected imports in th e whole of the tariff universe for goods.41 
VII. THE ALLEGED SERIOUS INJURY 
31. When defining a like or directly competitiv e product as one product, the investigating 
authority had to assume all the con sequences of such a definition, fo r example, the need to make a 
separate analysis for each relevant segment.  Th e Dominican Republic cannot take advantage of a 
broad definition of the domestic industry and at th e same time absolve itsel f of the responsibilities 
inherent in opting for this definition. 
32. As to the inclusion of information on products that are not those investigated, the 
Dominican Republic subsequently explains that  these products account for around 15 per cent of 
domestic production.42  It presents no further substantiati on than its mere affirmation.  The 
                                                      
34 Ibid., paragraphs 180-184 and 189.  See also the Appellate Body Report, Argentina – Footwear 
(EC) , paragraph 92;  Appellate Body Report, Korea – Dairy , paragraph 85. 
35 First written submission of the complainants, paragraphs 227-234;  opening oral statement by the 
complainants at the first substantive meeting, paragraph 58. 
36 Reply by the Dominican Republic to question 115 from the Panel. 
37 Second written submission of the complainants, paragraphs 192-194. 
38 Preliminary report, page 68;  final report, page 61. 
39 First written submission of the Dominican Republic, paragraphs 313-324. 
40 Ibid., paragraph 320. 
41 Reply by the complainants to question 118 from the Panel. 
42 Second written submission of the Dominican Republic, paragraph 99.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page F-15 
  
  Dominican Republic's ex post  explanation does not indicate whether the figure of 15 per cent of total 
output refers to the volume or total value of production. 
33. Regarding the inclusion of information on expor t activities, it is meaningless to take into 
account this type of information for the purpos es of the investigation.  The purpose of the 
investigation is to examine the situation of th e domestic industry producing the like product or the 
product directly competing with the imported product,  in accordance with Article 4.1(c) of the AS.  
Obviously, the product intended for export does not compete with the imported product that is the 
subject of investigation. 
34. Concerning depreciation and amortization costs,  the Dominican Republic's explanation is 
ex post .  The explanation now put forward cannot be found  in any part of the technical reports or the 
resolutions.  Furthermore, the Dominican Repub lic now acknowledges that the production of other 
products in the bags division accounts for around 15  per cent of domestic production, and that the 
bags division produces for export.  On this  basis, it is then necessary to make a pro rata  calculation at 
least in proportion to this level of production for th e product that is not a like or directly competitive 
product or is not sold on the Dominican market.  As this explanation and pro rata  calculation do not 
appear in the investigating authority's technical reports and resolutions, this confirms that the 
evaluation of losses and gains and cash flows based on the financial statements of the bags division 
was not a precise, sufficient and appropriate evaluation. 
VIII.  THE ALLEGED CAUSAL LINK 
35. On previous occasions, the complainants fu lly responded to the Dominican Republic's 
arguments regarding the shortcomings in the dete rmination of the causal link and the lack of a 
non-attribution examination.43  We should like to point out that the Dominican Republic has presented 
no arguments in defence other than those to  be found in its fi rst written submission. 
36. Consequently, for the purposes of this statem ent, the complainants reaffirm the claims 
mentioned and emphasize that the prima facie case already proven has not been effectively rebutted 
by the Dominican Republic. 
IX. THE LACK OF PARALLELISM 
37. The complainants reiterate their position th at the parallelism obligation is mandatory 
irrespective of whether the imports excluded are impo rted from a free trade area or customs union, or 
are imports from developing countri es under Article 9.1 of the AS.44 
38. As the imports from Mexico, Panama, Colombia  and Indonesia were exempt from application 
of the safeguard, logically, they should then ha ve been exempt from the investigation.  The 
Dominican Republic, however, did not do this and now argues that this basic concept of symmetry allows exceptions.  The complainan ts reject this interpretation. 
39. Precedents in the Panel and the Appellate Body Reports in US – Wheat Gluten  do not support 
the Dominican Republic's position.  First of all, th e Appellate Body clarified that the United States 
                                                      
43 Opening oral statement of the complainants at the first substantive meeting, paragraphs 99-115. 
44 Ibid., paragraph 118;  second written submissi on of the complainants, paragraph 239. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page F-16   
  was the one arguing that Article 9.1 is an exception to the parallelism rule.
45  Nevertheless, the 
Appellate Body never stated that it shared th e United States' interpretation.  Secondly, the 
Appellate Body then stated that Article 9.1 "is an exception to the general rules set out in the 
Agreement on Safeguards  that applies only to developing country Members".46  This statement does 
not mean that imports from developing countries s hould be exempt from application of the measure 
but not the underlying investigation.  In mentioning  that the exception to Article 9.1 concerns the 
general rules  in the AS, the Appellate Body referred to  the exceptional circumstance of excluding 
certain imports from the scope of the measure, hence without prejudice to also excluding these 
imports from the investigation.  In fact, it is precisely the exceptional circumstances such as 
application of Article 9.1 or the exemption for im ports from a free trade area or customs union which 
give rise to the parallelism obligation. 
X. LACK OF NOTIFICATION, CONSULTATIONS AND MEANS OF TRADE 
COMPENSATION 
40. In this connection, the Dominican Republic stat es that the hearings held during the safeguards 
investigation conducted by its inves tigating authority constitute the pr ior consultations referred to in 
Article 12.3 of the AS.47  The Dominican Republic claims that  "the consultations referred to in 
Article 12.3 of the Agreement on Safeguards were  held on 12 May on the occasion of the public 
hearing" in the safeguards investigation.48 
41. We reiterate that the hearings in the safeguard s investigation conducted by the investigating 
authority cannot be cannot be treated as equivalent  to consultations at the multilateral level as 
prescribed by Article 12.3 of the AS.49 
42. In essence, the Dominican Republic argues that, by  fulfilling Article 3.1 of the AS, there is 
automatically compliance with Article 12.3 of the AS.  This goes against the principle of effectiveness 
in the interpretation of treaties as the Dominican Republic's interpretation would make Article 12.3 
redundant.50 
XI. VIOLATION OF ARTICLES I.1 AND II.1(A) AND II.1(B) OF THE GATT 
43. If this Panel accepts that these measures are not  safeguard measures within the meaning of 
Article XIX and the AS, the provisional and defin itive measures are inconsistent with Articles I.1, 
II.1(a) and II.1(b) of the GATT. 
A. VIOLATION OF ARTICLE I.1 OF THE GATT:   THE MOST-FAVOURED -NATION PRINCIPLE  
44. According to Article I.1 of the GATT, any adva ntage, favour, privilege or immunity granted 
to products of a particular country must be accorded immediately and unconditionally to the like 
                                                      
45 Appellate Body Report, US – Wheat Gluten , footnote 96, first sentence ("The United States relies on 
Article 9.1 of the Agreement on Safeguards in support of  its argument that the scope of the serious injury 
investigation need not correspond exactly to the scope of application of a safeguard measure."). 
46 Ibid., footnote 96, second sentence. 
47 First written submission of the Dominican Republic, paragraphs 502-549. 
48 Reply by the Dominican Republic to question 167 from the Panel. 
49 Second written submission of the complainants, paragraphs 248-251. 
50 Appellate Body Report, US – Gasoline , page 25;  see also Appellate Body Report, Japan – Alcoholic 
Beverages , page 12;  Appellate Body Report, Korea – Dairy , paragraphs 81 and 82.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page F-17 
  
  product of other WTO Members.  A violation of Artic le I.1 implies proof of various elements, which 
were set out in our second written submission
51 and which are summarized below: 
 The decision not to apply the tariff surc harge to imports from Mexico, Panama, 
Colombia and Indonesia constitutes an a dvantage, favour, privilege or immunity 
related to import duties; 
 this advantage, favour, privilege or immun ity granted by the Dominican Republic to 
Mexico, Panama, Colombia and Indonesia is  not extended to other WTO Members, 
because exemption from the measure only benefits these four countries. 
45. The Dominican Republic has acknowledged on a number of occasions that, if the measures 
contested are not deemed to be safeguards, exem pting certain countries from the measure becomes 
"problematic".52  The Dominican Republic does not seek to justify this violation under any provision 
of the GATT.  Accordingly, it is obvious that the Dominican Republic acted in a manner inconsistent 
with Article I.1 of the GATT by not applying th e tariff surcharge on a most-favoured-nation basis. 
B. VIOLATION OF THE PROHIBITION ON IMPOSING DUTIES AND CHARGES OTHER THAN 
ORDINARY CUSTOMS DUTY 
46. The complainants have also contended throu ghout the procedure that the provisional and 
definitive measures are contrary to Article II.1(a)  and II.1(b), second sentence, of the GATT.  The 
Dominican Republic has not presented any better defen ce against these claims than the statement that 
these measures simply constitute a tariff increase a nd has put forward this statement only in the 
context of the applicability of the AS and Article XIX.53 
47. We have already dealt with these arguments in  regard to the appli cability of the AS and 
Article XIX.  In our view, the Dominican Republic  has not submitted sufficient factual elements to 
refute those cited by the complainants.54  We consider that this is the case because it is difficult to 
explain how a measure whose characteristics are not the same as a tariff, and which even the Dominican Republic recognizes is applied in replace ment of the ordinary customs duty, could be 
termed a tariff.  In addition, we reaffirm that the Dominican Republic has not registered any duty or 
charge other than the ordinary customs duty in it s Schedule of Concessions.  Consequently, the Panel 
will have to determine whether the complainants  have proved that the provisional and definitive 
measures constitute duties and charges other than ordinary customs duty and that, accordingly, they 
are inconsistent with Article II.1(a) a nd II.1(b), second sentence, of the GATT. 
XII. CONCLUSION 
48. Based on the foregoing, the complainants request the Panel to confirm that the AS and 
Article XIX apply to the provisional and definitive  measures and to find that the measures, and the 
investigation and substantive dete rminations contested, are inconsis tent with Article XIX and the 
                                                      
51 Second written submission of the complainants, paragraphs 256-282. 
52 Closing statement by the Dominican Republic at the first substantive meeting, paragraph 17;  reply 
by the Dominican Republic to question 52 from the Panel;  reply by the Dominican Republic to question 2 from the complainants. 
53 Second written submission of the Dominican Republic, paragraphs 15-25. 
54 See the complainants' response to the request fo r a preliminary resolution, paragraph 123;  opening 
oral statement by the complainants at the first substantive meeting, paragraphs 136-145;  reply of the 
complainants to questions 26 and 27. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page F-18   
  various provisions of the AS cited.  Likewise, the co mplainants request the Panel to find that the lack 
of notification, consultations and adequate means of compensation are inconsistent with Articles 8.1 
and 12.3 of the AS and XIX.2 of the GATT. 
49. Alternatively, the complainants request the Panel to find that the selective exemption of 
imports from the provisional and definitive measures is inconsistent with Article I.1 and that both 
measures are also inconsistent with Article II. 1(a) and II.1(b), second sentence, of the GATT. 
50. Lastly, in view of the serious and numerous anomalies in the investigation, and in the 
application of the provisional and definitive measures,  the complainants consider that the Panel would 
be justified in exercising its authority, pursuant to Article 19.1 of the DSU, to make suggestions 
regarding implementation.  In this connection, the complainants request the Panel to suggest that the 
Dominican Republic withdraw the defin itive measure with immediate effect.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page F-19 
  
  ANNEX F-3 
 
CLOSING ORAL STATEMENT OF THE DOMINICAN REPUBLIC 
 
 Mr Chairman, members of the Panel:  
1. The Dominican Republic thanks you for your effort s and questions yesterday and today at this 
second substantive meeting of the Panel.  As this meeting draws to a close, the Dominican Republic 
would merely like to make a few general remarks that it would ask the Panel to bear in mind when 
reaching its conclusions and findings. 
2. It has become clear that the me asures at issue before the Panel do not suspend any obligations 
or modify or withdraw a concession within the meaning of Article XIX:1(a) of the GATT.  The 
complainants nevertheless maintain that GATT Article XIX and the Agre ement on Safeguards apply 
to the measures in dispute. 
3. To support their arguments, the complainants ha ve resorted to interpretations according to 
which the essential function of a safeguard measure is to prevent or remedy serious injury to a 
domestic industry by adopting measures as a "saf eguard" duty that is different from a simple 
MFN tariff increase.  According to this interpre tation, the idea of suspending an obligation or 
withdrawing or modifying a concession is not essential to the notion of safeguard in WTO law.
1  
According to the complainants, the suspension of an obligation or the modification or withdrawal of a 
concession would only be necessary when the "safegua rd duty" results in an increase that exceeds the 
bound rate.  Thus, an additional duty below the bound level would constitu te a "safeguard" duty 
although it does not involve the suspension, withdr awal or modification of an obligation or 
concession.  This interpretation introduces an artif icial distinction between the first and second parts 
of Article XIX:1(a) of the GATT in which th e second part provides for cases in which such a 
safeguard measure is inconsiste nt with other GATT obligations. 
4. Essentially, it became clear as the proceedings went forward that the complainants were 
trying to create a sort of sui generis  trade remedy that is not provided for in the WTO Agreements.  
This remedy would cover any measure whose function c onsists of resolving injury or threat of serious 
injury situations without taking account of the objec tive conditions that define the notion of safeguard 
and the scope of application of GATT Article  XIX and the Agreement on Safeguards.  The 
Dominican Republic urges the Panel not to adopt th is novel interpretation of Article XIX of the 
GATT, which would be tantamount to creating a new trade remedy and applying disciplines to 
measures that would otherwise be authorized under the GATT. 
5. The interpretation of the complainants should no t be adopted lightly:  to apply disciplines to 
certain measures that can normally be freely adopt ed, as in the case of a tariff increase to a level 
below the bound rate, would be to undermine the flexibility that is inherent and essential to the 
WTO's system of tariff concessions, i.e. the marg in for manoeuvre represented by the difference 
between the bound rate and the applied tariff. 
6. For WTO Members, this margin of flexibility provided by the difference between the applied 
tariff and the bound rate is essential.  Moreover,  several of the complainants joined the 
Dominican Republic in defending this margin in  recent non-agricultural market access negotiations, 
                                                      
1 Reply of the complainants to question 58 of the Panel. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page F-20   
  stressing that "[t]ariffs serve multiple purposes in small, vulnerable economies, the most important of 
which are to ensure the viability of vulnerable domestic industries …".
2  The Dominican Republic 
asks the Panel not to create a precedent that would undermine th e incentives for Members to apply 
tariffs at a rate significantly below the bound rate, as this would affect one of the cornerstones of the 
GATT, namely the system of tariff concessions as a ceiling below which Members are given ample 
freedom of action. 
7. The Dominican Republic trusts that the Panel w ill not adopt an interpretation that turns the 
notion of safeguard into a trade defence instrume nt similar to an anti-dumping procedure.  The 
purpose of imposing a safeguard measure is the su spension, modification or withdrawal of an 
obligation or concession.  This is why Article XIX is known as an escape clause.  It would be 
counter-productive to impose the disciplines of th e Safeguards Agreement on tariff increases within 
the margin of flexibility between the bound rate a nd the applied tariff.  Such an increase does not 
require recourse to any escape clause, considering that there is no obligation being suspended or 
concession being modified. 
8. Mr Chairman, members of the Panel, I thus conclude my oral statement.  The 
Dominican Republic would like to thank you and the Secretariat once again for your efforts in this 
dispute. 
 
                                                      
2 Market Access for Non-Agricultural Products:  Tr eatment of Small, Vulnerable Economies in the 
NAMA Negotiations;  Communication from Antigua and Barbuda, Barbados, Bolivia, Dominica, 
Dominican Republic, El Salvador, Fiji, Grenad a, Guatemala, Honduras, Mongolia, Nicaragua, 
Papua New Guinea, Paraguay, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines and 
Trinidad and Tobago, 10 November 2005, TN/MA/W/66, paragraph 4.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page F-21 
  
  ANNEX F-4 
 
CLOSING ORAL STATEMENT OF THE COMPLAINANTS 
 
 Mr Chairman, members of the Panel:  
1. In this last statement, the complainants present some reactions to the opening statement by the 
Dominican Republic yesterday. 
2. With regard to the preliminary objections that seek to exclude certain claims from the Panel's 
terms of reference, during this second hearing we have not heard an y additional substantive argument 
from the Dominican Republic in support of its positi on.  The Dominican Republic still fails to explain 
how its right of defence was specifically affect ed.  It has not shown either how the alleged 
inconsistency between the request for consultations and the request for the establishment of a panel 
changed the essence of the claims. 
3. The arguments concerning Articles I.1, II.1(a) and II.1(b) of the GATT fall fully within the 
terms of reference for this dispute because of the re servation contained in the request for consultations 
that enabled the complainants to bring up i ssues in conformity with the GATT during the 
consultations, and also because of the fact that  these issues were in fact discussed during the 
consultations.  Moreover, these arguments are clearly  included in the request for the establishment of 
a panel.  The Dominican Republic nevertheless conti nues to seek ways of depriving these facts of any 
substance;  for example, by stating that the i ssues concerning Articles I and II of the GATT were not 
discussed during the consultations.  In this connecti on, we repeat that Panama, being the only country 
which participated in the consultations as an associate member, clarified that these issues were 
effectively addressed in the consultations.  Conse quently, this discussion has already concluded. 
4. We also note that the Dominican Republic has not  put forward any formal defence concerning 
the claims relating to Articles I.1, II.1(a) and II.1(b)  of the GATT.  It simply addressed these issues in 
connection with the discussion on the applicability of  Article XIX and the AS to the provisional and 
definitive measures. 
5. Regarding the applicability of the AS and Ar ticle XIX, the Dominican Republic finds it 
pertinent to cite the interpretative note to Article  40 of the Havana Charter concerning Emergency 
Action on Imports of Particular Products, which indicates that any suspension, withdrawal or 
modification under what today would be Article XIX. 1(a) must not discriminate against imports from 
any Member country.  It then states that this logic has applied since the very first days Article XIX 
came into force.
1 
6. The complainants consider that the interpreta tive note referred to by the Dominican Republic 
does not form part of the ordinary meaning, context, object and purpose of the GATT, in particular, Article XIX, so it plays no role in the task of interpreting Article XIX.1(a).  Article XIX has no 
interpretative notes and the meaning of the words " obligations" and "obligation" in its context is 
unequivocal and is not qualified. 
                                                      
1 Opening oral statement of the Dominican Republic at  the second meeting of the Panel, paragraphs 17 
and 18. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page F-22   
  7. Furthermore, even if this note played any inte rpretative role, the compla inants consider that 
its import does not support the Dominican Republic 's position, but rather supports what the 
complainants contend to the effect that it indi cates that the GATT Contracting Parties decided to 
exclude this limitation from the scope of Ar ticle XIX of the GATT.  Accordingly, the 
Dominican Republic failed to explain what  happened to this interpretative note. 
8. This interpretative note was included in the te xt of the Havana Charter in relation to 
Article 40 (now Article XIX).  Unlike other provi sions and interpretative notes, however, including 
Article 40 itself (i.e. Article XIX), it did not surv ive the transition from the Havana Charter to the 
GATT 1947 and was not incorporated into the text of the GATT 1947. 
9. As can be seen from the document we are att aching as exhibit CEGH-39, the Havana Charter 
contains several provisions that are today included in the GATT.  Article 40 almost literally reflects 
what we now know as Article XIX of the GA TT.  Moreover, the Havana Charter included 
interpretative notes on various of its substantiv e provisions.  Many of these interpretative notes 
survived the transition from the Havana Charter to the GATT 1947.  This was the case, for example, 
with the note concerning Article 18 of the Havana Charter, which is now the interpretative note to 
Article III.2 of the GATT concerning internal taxes.  Other notes, however, were not incorporated into 
the GATT.  This was the case for th e note concerning Article 40 of the Havana Charter, cited by the 
Dominican Republic in its oral statement yesterday. 
10. What does this omission signify?  In our view, that the Contracting Parties to the GATT 1947 
clearly rejected the limitation on the scope of Artic le XIX.1(a), which it was sought to establish by 
means of the interpretative note refe rred to by the Dominican Republic. 
11. It should also be pointed out that the Dominican Republic did not quote the interpretative note 
to Article 40 of the Havana Charter in full.  The text in full reads as follows: 
It is understood that any suspension, withdrawal or modification under 
paragraphs 1(a), 1(b) and 3(b) must not discriminate against imports from any Member country, and that such action shoul d avoid, to the fullest extent possible, 
injury to other supplying Member countries.
2 
12. It should be noted that the last part of this note qualifies the measure in such a way that the 
action to be avoided, to the fullest extent possible, is causing injury to other Members suppliers of the 
product in question.  These words cast doubt on the abso lute nature of the "non-discrimination" which 
it is sought to establish in the first part of the interpretative note. 
13. Consequently, the Dominican Republic only relate d part of the story, leaving out a detail 
which in fact backs up the position of the complainants  in the sense that Article XIX.1(a) applies to all 
the GATT provisions, including Article I.1. 
14. This position is supported by another fact th at the Dominican Republic also omitted to 
mention concerning the early days of the GATT 1947.  As can be seen from the document attached as 
Exhibit CEGH-40, page 13, in connection with the revision of the GATT in 1955, there was an attempt on the part of delegations of certain Sca ndinavian countries to reintroduce the interpretative 
note to Article 40 of the Havana Charter by means of a new provision.  The proposal was submitted to 
                                                      
2 Exhibit CEGH-39.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page F-23 
  
  the sub-committee revising the GATT, which rejected  it.  There was no general agreement on it.  In 
the end, it had to be withdrawn. 
15. Contrary what is stated by the Dominican Repub lic, this shows that in the early years of the 
GATT the interpretative note to the Havana Ch arter did not have the effect which the 
Dominican Republic is now seeking to give it.  More over, it also shows that, since the early days of 
the GATT 1947, the GATT Contracting Parties were not prepared to accept a limitation on the scope 
of Article XIX.1(a) of the GATT. 
16. In addition, the Dominican Republic cites a report by the Ad Hoc Committee on the accession 
of Japan to the GATT 1947
3 in support of its statement that Ar ticle XIX.1 does not allow suspension 
of Article I.1 of the GATT.  What the Dominican Republic does not indicate is that this report was situated in a context in which several Contracti ng Parties were concerned about Japan's accession to 
the GATT and wondered whether it would not perhaps be appropriate to apply a safeguard focusing 
on Japan with a view to remedying serious injury , not just for a specific producer but for various 
production sectors.
4 
17. It was in this context that some members of the Committee expressed the view that the 
measures adopted pursuant to Article XIX could not be discriminatory.5  This was the limited opinion 
of some members of the Committee.  It did not reflect a consensual or general opinion of the 
Committee, still less of the Contracting Parties to  the GATT 1947.  Accordingly, this position of some 
parties during negotiations  has to be viewed in the light of its due and limited scope in the context of 
those negotiations. 
18. The Dominican Republic states that in Japan's accession procedure the possible extension of 
Article XIX also to constitute susp ension of Article I.1 was rejected.6  What was in fact rejected, 
however, was extension of Article XIX to include c onditions in addition to those provided in the first 
part of Article XIX.1(a) concerning imports  from one Contracting Party in particular.7  Perhaps this 
rejection was attributable to the opinion mentione d by the Dominican Republic, but it might also be 
attributable to the view that there was no need  to extend Article XIX.1(a), either because the 
additional conditions sought  were already covered by Article XXIII of the GATT8, or because some 
of the Committee's members considered that Article  XIX.1(a) allowed for the possibility of applying 
safeguards to imports from specific countries.  Th e report cited by the Dominican Republic does not 
enable a conclusion to be reached either way, so  it does not constitute el ucidatory and relevant 
information. 
19. For the foregoing reasons, the complainants do not consider that the additional elements 
presented by the Dominican Republic provide confirma tion that Article XIX.1(a) excludes Article I.1 
of the GATT from its application. 
20. With regard to the definition of the domestic industry, the Dominican Republic indicates that 
the complainants argue that the Panel was obliged to revise the definition of the product subject to 
investigation in the light of the report of the Appellate Body in EC – Aircraft .  The reason why the 
                                                      
3 Exhibit RDO-27. 
4 Ibid., paragraphs 3-6. 
5 Ibid., paragraph 6. 
6 Opening statement of the Domini can Republic at the second mee ting of the Panel, paragraph 18. 
7 Exhibit RDO-27, paragraph 7. 
8 Idem.  WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page F-24   
  Dominican Republic considers that this report is irre levant is that the definition of subsidized product 
in a complaint of serious injury is submitted by a WTO Member and refers to the relevant market, 
whereas the definition of the product subject to inv estigation in a domestic procedure is made by the 
investigating authority.
9  This reason does not appear valid to us.  The fact that the evaluation by a 
panel (in the case of serious injury) by compar ison with a domestic authority (in the case of 
safeguards) does not have any consequences, it does not lessen the duty of objectiveness, impartiality 
and neutrality that must be the feature of inv estigations, whether by a panel or by a domestic 
investigating authority in the case of safeguards. 
21. Moreover, a claim of serious injury concerns tr ade that is distorted by recurrent or unlawful 
subsidies, whereas a safeguards investigation concerns  trade that is conducted lawfully along the lines 
to be expected in trade relations among Members.  This fundamental distinction indicates even more 
clearly that the principles which govern determination of the product investigated in a claim of serious 
injury must be respected in an investigation relati ng to safeguard measures, and confirm to this Panel 
that the considerations taken into  account by the Dominican Republic in  order not to provide adequate 
and reasoned explanations of the product subject to  investigation when defining the domestic industry 
are insufficient. 
22. As to the alleged increase in imports, the Do minican Republic repeats its arguments that 
"overall during the investigation peri od imports increased by 50.06 per cent".10  This spontaneous and 
abrupt statement by the Dominican Republic re flects its underlying assumption, namely, for it the 
criterion followed first and foremost to determine the increase in imports was increases at each 
extremity of the period. 
23. Subsequently, concerning the decrease in 2009, the Dominican Republic indicated that this 
can be explained by the reduced growth in the Do minican economy and that the temporary nature of 
this decline was confirmed by the import figures for 2010.11  The complainants ask themselves where, 
in the respective reports, it is determined that the d ecline was "incidental" and "temporary" in the light 
of these considerations?  Reading these reports does not lead to such conclusions or to an explanation 
of how a macroeconomic occurrence that affects the economy in general (and hence questionably 
"incidental") or an increase based on imports distor ted by the conduct of the investigation and the 
imposition of the provisional measure (and hence ques tionably proof of their "temporary" nature) can 
lead to the conclusion that the decline in impor ts up to the end of the investigation period was 
irrelevant. 
24. Lastly, the complainants would like to emphasize the systematic repercussions of this dispute 
at three levels:  at the level of consideration of  safeguards within the WTO, at the level of trade 
remedies, and at the level of re gional and multilateral trade policy. 
25. As to the consideration of safeguards with in the WTO, if the Dominican Republic's 
interpretation that the measures in question are not safeguard measures in the WTO context is 
accepted, this would allow investigating authorities to initiate investigation procedures in order to 
apply safeguard measures, involving several inter ested parties and governments of exporting countries 
(with high costs for participation, legal representa tion, trade uncertainties, and political manoeuvring), 
and subsequently avoid multilateral control .  In other words, it would encourage the initiation of 
supposedly "harmless" investigation procedures and th ere would be no form of control even if they 
                                                      
9 Opening statement of the Domini can Republic at the second mee ting of the Panel, paragraph 35. 
10 Ibid., paragraph 50. 
11 Idem .  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page F-25 
  
  would undoubtedly have the effect of disguised barri ers to trade and international competition.  Such 
an outcome would be directly contrary to the object and purpose of the AS, as set out in its preamble, 
and would raise serious doubts about the feasibility of contesting such measures through the dispute 
settlement mechanism. 
26. With regard to trade remedies, if the Dominican  Republic's interpretation that the measures in 
question are not safeguard measures in the WT O context is accepted, in anti-dumping or 
countervailing procedures investigating authorities c ould use this interpreta tion as a perverse incentive 
to avoid obligations under the anti-dumping and s ubsidies and countervailing measures agreements.  
An investigating authority following this line co uld then decide to initiate an anti-dumping or 
countervailing duty investigation into imports from sev eral origins, collect the necessary information, 
evaluate whether there are "unfair practices", injury and a causal link, and if this evaluation did not yield the expected results, it could terminate the investigation and then impose a "tariff increase", 
even though this increase might exceed the margin of  dumping or subsidization, as may be the case.  
Even if it was determined that there was an unfair practice, injury and a causal link, an investigating 
authority might deem it appropriate not to impose an anti-dumping or countervailing duty and replace 
it with a straightforward tariff increase in order to a void the expiry period of five years applicable to 
such measures.  It would also be a dangerous incentive that could place WTO Members in the situation prior to the existence of the GATT 1947:  soon, there could be a proliferation of measures 
that were not only obstacles to international tr ade but, quite simply, escaped from any multilateral 
control. 
27. Lastly, as regards regional and multilateral policy,  if the Dominican Republic's interpretation 
that the measures in question are not safeguard m easures in the WTO context is accepted, there would 
be inconsistency between the re gional provisions on safeguard measures and the WTO provisions.  
Many WTO Members have managed to negotiate a harmonious balance between these provisions by 
retaining the rights and obligations of Article XIX a nd the AS at the regional level in order to apply 
the so-called global safeguards.  This ba lance has been reached not only between the 
Dominican Republic and the complainants in the DR-CAFTA and Central America-DR agreements, it is a common mechanism in several regional agreemen ts and is desirable because it makes safeguards 
disciplines at the regional level and those e nvisaged at the multilateral level consistent. 
28. This harmonious balance, however , could be distorted if, in order to abstain from compliance 
with its regional commitments, a party to these regi onal agreements makes use of and benefits from 
the WTO provisions and then, when facing questi ons in the WTO and in order to abstain from 
compliance with its WTO commitments, this party go es back on itself and contends that the measure 
from which it benefited is not a safeguard measure in  WTO terms.  The result of the foregoing would 
be that, in order to contest the measures in question,  a complainant would first have to do so using the 
dispute settlement mechanism in th e regional agreement in question;  wait for the argument of the 
defence that it is a WTO safeguards measure;  and only after this has been accepted, may it bring the 
matter up at the WTO, where the defendant still has the possibility of arguing that it is not a safeguard measure in accordance with the AS because it does not involve suspension of obligations or 
concessions. 
29. In the light of the foregoing, as a matter of trade policy, it would not be acceptable to allow a 
country to benefit in two ways from acts that are unrelated, particularly if these acts are committed at the expense of the interests and expectations in good faith on the part of other trading partners. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page F-26   
  30. For all the reasons explained during this pro cedure, we hope that the Panel will objectively 
evaluate this dispute and find that the provisional and definitive measures are inconsistent with 
Article XIX and the AS (or alternatively with Articl es I.1, II.1(a) and II.1(b) of the GATT) and that 
the other measures at issue are also inconsistent with Article XIX and the AS. 
_______________ 
 
 
  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page G-1 
  
  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 
 WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page G-2   
  ANNEX G-1 
 
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY COSTA RICA 
 
 
WORLD TRADE  
ORGANIZATION   
WT/DS415/7 
22 December 2010  
 
(10-6862) 
 Original:   Spanish 
  
 
DOMINICAN REPUBLIC - SAFEGUARD MEASURES ON IMPORTS OF 
POLYPROPYLENE BAGS AND TUBULAR FABRIC 
 
Request for the Establishment of a Panel by Costa Rica 
 
 
 The following communication, dated 15 December  2010, from the delegation of Costa Rica to 
the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU. 
 
_______________ 
 
  On 15 October 2010, Costa Rica requested c onsultations with the Dominican Republic 
pursuant to Article 4 of the Understanding on Ru les and Procedures 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 co ncerning the provisional and definitive safeguard 
measures imposed by the Dominican Republic on impor ts of polypropylene bags and tubular fabric 
and the investigation that led to the imposition of those measures.   Costa Rica and the Dominican Republic held  consultations on 16 a nd 17 November 2010.  
Unfortunately, these consultations failed to settle the di spute.  Accordingly, pursuant to Article 6 of 
the DSU and Article 14 of the Agreement on Safeguards,  Costa Rica requests that at its next meeting, 
scheduled for 25 January 2011, the Dispute Settlement  Body establish a panel with the standard terms 
of reference as set out in Article 7.1 of the DSU to  examine this matter and the claims set forth below. 
 A. B
ACKGROUND AND MEASURES AT ISSUE  
 The measures at issue were imposed pursuant to an investigation conducted by the Regulatory 
Commission on Unfair Trade Practices and Safe guard Measures of the Dominican Republic 
(hereinafter "the Commission").   WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page G-3 
  
  1. Initiation of the safeguard investigation 
 On 15 December 2009, at the request of  the company FERSAN S.A. (hereinafter 
"FERSAN"), the Commission declared the initiation of an investigation with a view to the application 
of safeguard measures on imports from all origins of  polypropylene bags and tubular fabric classified 
under subheadings 5407.20.20, 6305.33.10 and 6305.33.90 of the Tariff of the Dominican Republic (hereinafter "the initiating resolution").
1  On 17 December 2009, the Commission published a notice 
of initiation of an investigation.2 
 
2. Preliminary determination 
 On 16 March 2010, the Commission decided to impose a provisional safeguard of 38 per cent 
on imports of polypropylene bags and tubular fa bric classified under subheadings 5407.20.20 and 
6305.33.90 of the Tariff of the Dominican Republic.  It was also decided to exclude from the 
application of the measure imports from Mexi co, Panama, Colombia and Indonesia pursuant to 
Article 9.1 of the Agreement on Safeguards.3  On 25 March 2010, the Commission published a notice 
of application of provisional measures on impor ts of polypropylene bags  and tubular fabric.4  T h e  
duration of the provisional safeguard measure was 200 days.  
3. Final determination 
 On 5 October 2010, the Commission decided to  impose a definitive safeguard of 38 per cent 
on imports of polypropylene bags and tubular fa bric classified under subheadings 5407.20.20 and 
6305.33.90 of the Tariff of the Dominican Republic.
5  The Commission then issued a notice of 
application of the definitive measures on impor ts of polypropylene bags and tubular fabric.6  In that 
notice and in the final resolution, the Commission pointed out that pursuant to Article 9.1 of the 
Agreement on Safeguards, the definitive safeguard measure would not apply to imports from Mexico, 
Panama, Colombia and Indonesia.  The measure is being applied for 18 months starting on 
18 October 2010.   Thus, for Costa Rica the measures at issue cover all of the resolutions, technical reports and notices mentioned above as regards the actions and omissions of the authorities of the 
Dominican Republic during the investigation and im position of the safeguard measures, including the 
methodology, calculations, comparisons, determ inations, procedures or general practices. 
                                                      
1 Commission Resolution CDC-RD-SG-046- 2009 of 15 December 2009;  initial technical report of the 
Commission dated 20 November 2009. 
2 Notice, general safeguard investigation concerning textiles of man-made filament yarn and bags of 
polyethylene and polypropylene, dated 15 December 2009. 
3 Resolution CDC-RD-SG-061-2010 of the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic, dated 16 March 2010 ("Preliminary Resolution").  Addendum 
to Resolution CDC-RD-SG-061-2010 dated 16 March 2010 deciding on the application of the provisional 
measures requested by Fertilizantes Sant o Domingo, C. Por A. (FERSAN) in the Polypropylene Bags and 
Tubular Fabric  case, dated 30 March 2010;  Preliminary Technical Report of the Commission (without date). 
4 Notice, general safeguard investigation concer ning tubular fabric and polypropylene bags, 
25 March 2010. 
5 Resolution CDC-RD-SG-089-2010 of the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic, dated 5 October 2010 ("Final Resolution");  Final Technical 
Report of the Commission, dated 13 July 2010. 
6 Notice, general safeguard investigation concerning tubular fabric and polypropylene bags, dated 
6 October 2010. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page G-4   
   
B. L
EGAL BASIS FOR THE COMPLAINT  
 Costa Rica notes that according to Article 11.1( a) of the Agreement on Safeguards, a Member 
shall not take or seek a safeguard action unless su ch action conforms with the provisions of 
Article XIX of the GATT 1994 applied in accordance with the Agreement on Safeguards.  In this 
connection, Costa Rica considers that:  
(a) The Commission's preliminary and final dete rminations do not contain reasoned and 
adequate findings and conclusions with resp ect to the various relevant factual and 
legal aspects of the determin ations relating to the produc t under investigation, the 
domestic like product, and the domestic industr y, and this affects the determinations 
of increased imports, serious injury a nd causality that stem from those prior 
determinations.  These omissions are inconsistent with Articles 2.1, 3.1, 4.1(a), 
4.1(c), 4.2(a), 4.2(b), 4.2(c) and 6 of the Agreement on Safeguards, and 
Article XIX:1(a) of the GATT 1994. 
(b) The preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions regarding the a lleged unforeseen developments and to 
explain how those developments resulted in increased imports of the specific products 
covered by the safeguard measure.  These omissions are inconsistent with 
Articles 3.1, 4.2(a), 4.2(b), 4.2(c), 6 and 11.1(a) of the Agreement on Safeguards and 
Article XIX:1(a) of the GATT 1994. 
(c) Moreover, the preliminary and final dete rminations do not contain reasoned and 
adequate findings and conclusions with respect  to the alleged effect of the obligations 
incurred under the GATT 1994, and how that effect would have resulted in increased 
imports of the specific products covered by  the safeguard measure.  These omissions 
are inconsistent with Articles 3.1, 4.2( a), 4.2(b), 4.2(c), 6 and 11.1(a) of the 
Agreement on Safeguards and Artic le XIX:1(a) of the GATT 1994. 
(d) Nor do the preliminary and final determin ations contain reasoned and adequate 
findings and conclusions with respect to the alleged increase in imports of the specific 
products under investigation, in absolute terms or relative to domestic production.  
These omissions are contrary to Articles 2.1, 3.1, 4.2(a), 4.2(b), 4.2(c), and 6 of the 
Agreement on Safeguards and Artic le XIX:1(a) of the GATT 1994. 
(e) Furthermore, although the state of the domes tic industry was found to be favourable, 
the preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions as to the existence of the alleged serious injury, understood 
as significant overall impairment of the domestic industry.  Nor does the preliminary determination contain any reasoned and ad equate findings and conclusions with 
regard to the critical circumstances to justif y the provisional measure, or with regard 
to all of the factors that are required to be  examined for the determination of serious 
injury.  These omissions are inconsistent with Articles 2.1, 3.1, 4.1(a), 4.2(a), 4.2(b), 
4.2(c) and 6 of the Agreement on Safe guards and Article XIX:1(a) of the 
GATT 1994. 
(f) Nor, at the same time, do the preliminary and final determinations contain reasoned 
and adequate findings and c onclusions regarding the causal link between the alleged  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page G-5 
  
  increase in imports and the serious injury to  the domestic industry.  In particular, 
these determinations do not contain the anal ysis substantiating the causal relationship 
between the alleged increased imports and the alleged serious injury to the domestic 
injury.  Nor is it explained how the injury to the domestic industry caused by factors other than imports was not attributed to the imports of the products under 
investigation.  These omissions are contrary to Articles 2.1, 3.1, 4.1(a), 4.2(a), 4.2(b), 
4.2(c) and 6 of the Agreement on Safe guards and Article XIX:1(a) of the 
GATT 1994. 
(g) The measures at issue do not exempt all of the developing countries whose share of 
imports does not exceed 3 per cent.  More over, the required parallelism between the 
substantive evaluation of the determinations of increased imports, serious injury and causal link on the one hand, and the coverage of the measures at issue as regards 
origin on the other, was not respected.  These omissions are inconsistent with 
Articles 2.1, 2.2, 4.2(a), 4.2(b), 4.2(c), 5. 1, 6 and 9.1 of the Agreement on Safeguards, 
and Article XIX:1(a) of the GATT 1994. 
(h) The preliminary and final determinations do not contain any reasoned and adequate 
findings and conclusions as to the reasons wh y certain information was considered to 
be confidential without requiring non-confid ential summaries or why that information 
could not be summarized in a non-confidential manner.  These omissions are contrary 
to Articles 3.1 and 3.2 of the Agreement on Safeguards. 
(i) The preliminary and final determinations do not contain any reasoned and adequate 
findings and conclusions as to the need for the safeguard measure to facilitate 
adjustment of the domestic industry.  This omission is inconsistent with Articles 3.1, 
4.2(c), and 5.1 of the Agreement on Safeguards. 
(j) The resolutions and reports made public  concerning the preliminary and final 
determinations do not contain the reasoned and adequate findings and conclusions on 
all issues of fact and law supporting the impos ition of the measures in question.  This 
omission is inconsistent with Articles 3.1 and 4.2(c) of the Agreement on Safeguards. 
(k) Finally, the Dominican Republic failed to provide the Members having a substantial 
interest as exporters of the products con cerned adequate opportunity for consultations 
prior to the adoption of the definitive measu re.  Nor did the Dominican Republic seek 
to agree on any adequate means of trade co mpensation for the adverse effects of the 
measures on the trade of other Members.  This omission is inconsistent with Articles 8.1 and 12.3 of the Agreement on Safeguards and Article XIX:2 of the 
GATT 1994. 
 In any case, Costa Rica considers that: 
 
(l) The measures at issue are inconsistent with Article I:1 of the GATT 1994 in that they 
are measures that are not applied to pr oducts originating in or consigned from 
particular origins, and this constitutes an advantage that has not been accorded 
immediately and unconditionally to other WTO Members. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page G-6   
  (m) Moreover, the measures at issue are duties and charges other than ordinary customs 
duties that are contrary to Article II:1(a) and the second sentence of Article II:1(b) of 
the GATT 1994. 
 In view of the foregoing, Costa Rica request s the Dispute Settlement Body to establish a 
panel with the standard terms of reference as set out  in Article 7.1 of the DSU to examine this matter 
and the above-mentioned claims.  
 In view of the 18-month period of validity of the definitive safeguard measure and to ensure 
that the dispute settlement system provides an effectiv e solution to this dispute, Costa Rica hopes that 
the Panel will issue the final report to the parties as soon as possible, and in any case not later than the 
period of six months from the date that the com position and terms of refere nce of the Panel were 
agreed upon, as stipulated in Article 12.8 of the DSU.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page G-7 
  
  ANNEX G-2 
 
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY GUATEMALA 
 
 
WORLD TRADE  
ORGANIZATION   
WT/DS416/7 
22 December 2010  
 
(10-6864) 
 Original:   Spanish 
  
DOMINICAN REPUBLIC - SAFEGUARD MEASURES ON IMPORTS OF 
POLYPROPYLENE BAGS AND TUBULAR FABRIC 
 
Request for the Establishment of a Panel by Guatemala 
  
 The following communication, dated 15 Decemb er 2010, from the delegation of Guatemala to 
the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU. 
 
_______________ 
  
 On 15 October 2010, Guatemala requested c onsultations with the Dominican Republic 
pursuant to Article 4 of the Understanding on Ru les and Procedures 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 co ncerning the provisional and definitive safeguard 
measures imposed by the Dominican Republic on impor ts of polypropylene bags and tubular fabric 
and the investigation that led to the imposition of those measures. 
  Guatemala and the Dominican Republic held consultations on 16 and 17 November 2010.  
Unfortunately, these consultations failed to settle the di spute.  Accordingly, pursuant to Article 6 of 
the DSU and Article 14 of the Agreement on Safeguard s, Guatemala requests that at its next meeting, 
scheduled for 25 January 2011, the Dispute Settlement  Body establish a panel with the standard terms 
of reference as set out in Article 7.1 of the DSU to  examine this matter and the claims set forth below. 
 A. B
ACKGROUND AND MEASURES AT ISSUE  
 The measures at issue were imposed pursuant to an investigation conducted by the Regulatory 
Commission on Unfair Trade Practices and Safe guard Measures of the Dominican Republic 
(hereinafter "the Commission").  
1. Initiation of the safeguard investigation 
 On 15 December 2009, at the request of  the company FERSAN S.A. (hereinafter 
"FERSAN"), the Commission declared the initiation of an investigation with a view to the application WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page G-8   
  of safeguard measures on imports from all origins of  polypropylene bags and tubular fabric classified 
under subheadings 5407.20.20, 6305.33.10 and 6305.33.90 of the Tariff of the Dominican Republic 
(hereinafter "the initiating resolution").
1  On 17 December 2009, the Commission published a notice 
of initiation of an investigation.2 
 
2. Preliminary determination 
 On 16 March 2010, the Commission decided to impose a provisional safeguard of 38 per cent 
on imports of polypropylene bags and tubular fa bric classified under subheadings 5407.20.20 and 
6305.33.90 of the Tariff of the Dominican Republic.  It was also decided to exclude from the application of the measure imports from Mexi co, Panama, Colombia and Indonesia pursuant to 
Article 9.1 of the Agreement on Safeguards.
3  On 25 March 2010, the Commission published a notice 
of application of provisional measures on impor ts of polypropylene bags  and tubular fabric.4  T h e  
duration of the provisional safeguard measure was 200 days. 
 
3. Final determination 
 On 5 October 2010, the Commission decided to  impose a definitive safeguard of 38 per cent 
on imports of polypropylene bags and tubular fa bric classified under subheadings 5407.20.20 and 
6305.33.90 of the Tariff of the Dominican Republic.5  The Commission then issued a notice of 
application of the definitive measures on impor ts of polypropylene bags and tubular fabric.6  In that 
notice and in the final resolution, the Commission pointed out that pursuant to Article 9.1 of the Agreement on Safeguards, the definitive safeguard measure would not apply to imports from Mexico, 
Panama, Colombia and Indonesia.  The measure is being applied for 18 months starting on 
18 October 2010. 
 
 Thus, the measures at issue cover all of th e resolutions, technical reports and notices 
mentioned above as regards the actions and omissi ons of the authorities of the Dominican Republic 
during the investigation and imposition of the safeguard measures, including the methodology, 
calculations, comparisons, determinati ons, procedures or general practices. 
 
                                                      
1 Commission Resolution CDC-RD-SG-046- 2009 of 15 December 2009;  initial technical report of the 
Commission dated 20 November 2009. 
2 Notice, general safeguard investigation concerning textiles of man-made filament yarn and bags of 
polyethylene and polypropylene, dated 15 December 2009. 
3 Resolution CDC-RD-SG-061-2010 of the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic, dated 16 March 2010 ("Preliminary Resolution").  Addendum 
to Resolution CDC-RD-SG-061-2010 dated 16 March 2010 deciding on the application of the provisional 
measures requested by Fertilizantes Sant o Domingo, C. Por A. (FERSAN) in the Polypropylene Bags and 
Tubular Fabric  case, dated 30 March 2010;  Preliminary Technical Report of the Commission (without date). 
4 Notice, general safeguard investigation concer ning tubular fabric and polypropylene bags, 
25 March 2010. 
5 Resolution CDC-RD-SG-089-2010 of the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic, dated 5 October 2010 ("Final Resolution");  Final Technical 
Report of the Commission, dated 13 July 2010. 
6 Notice, general safeguard investigation concerning tubular fabric and polypropylene bags, dated 
6 October 2010.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page G-9 
  
  B. L
EGAL BASIS FOR THE COMPLAINT  
 Guatemala notes that according to Article 11.1(a) of the Agreement on Safeguards, a Member 
shall not take or seek a safeguard action unless su ch action conforms with the provisions of 
Article XIX of the GATT 1994 applied in accordance with the Agreement on Safeguards.  In this 
connection, Guatemala considers that:  
(a) The preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions with respect to the various relevant factual and legal aspects 
of the determinations relating to the pr oduct under investigation, the domestic like 
product, and the domestic industry, and this affects the determinations of increased 
imports, serious injury and causality that stem from those prior determinations.  
These omissions are inconsistent with Articles 2.1, 3.1, 4.1(a), 4.1(c), 4.2(a), 4.2(b), 
4.2(c) and 6 of the Agreement on Safe guards, and Article XIX:1(a) of the 
GATT 1994. 
(b) The preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions regarding the a lleged unforeseen developments and to 
explain how those developments resulted in increased imports of the specific products covered by the safeguard measure.  These omissions are inconsistent with 
Articles 3.1, 4.2(a), 4.2(b), 4.2(c), 6 and 11.1(a) of the Agreement on Safeguards and 
Article XIX:1(a) of the GATT 1994. 
(c) Moreover, the preliminary and final dete rminations do not contain reasoned and 
adequate findings and conclusions with respect  to the alleged effect of the obligations 
incurred under the GATT 1994, and how that effect would have resulted in increased 
imports of the specific products covered by  the safeguard measure.  These omissions 
are inconsistent with Articles 3.1, 4.2( a), 4.2(b), 4.2(c), 6 and 11.1(a) of the 
Agreement on Safeguards and Artic le XIX:1(a) of the GATT 1994. 
(d) Nor do the preliminary and final determin ations contain reasoned and adequate 
findings and conclusions with respect to the alleged increase in imports of the specific 
products under investigation, in absolute terms or relative to domestic production.  
These omissions are contrary to Articles 2.1, 3.1, 4.2(a), 4.2(b), 4.2(c), and 6 of the 
Agreement on Safeguards and Artic le XIX:1(a) of the GATT 1994. 
(e) Furthermore, although the state of the domes tic industry was found to be favourable, 
the preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions as to the existence of the alleged serious injury, understood 
as significant overall impairment of the domestic industry.  Nor does the preliminary 
determination contain any reasoned and ad equate findings and conclusions with 
regard to the critical circumstances to justif y the provisional measure, or with regard 
to all of the factors that are required to be  examined for the determination of serious 
injury.  These omissions are inconsistent with Articles 2.1, 3.1, 4.1(a), 4.2(a), 4.2(b), 4.2(c) and 6 of the Agreement on Safe guards and Article XIX:1(a) of the 
GATT 1994. 
(f) Nor, at the same time, do the preliminary and final determinations contain reasoned 
and adequate findings and c onclusions regarding the causal link between the alleged 
increase in imports and the serious injury to  the domestic industry.  In particular, WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page G-10   
  these determinations do not contain the anal ysis substantiating the causal relationship 
between the alleged increased imports and the alleged serious injury to the domestic 
injury.  Nor is it explained how the injury to the domestic industry caused by factors 
other than imports was not attributed to the imports of the products under 
investigation.  These omissions are contrary to Articles 2.1, 3.1, 4.1(a), 4.2(a), 4.2(b), 
4.2(c) and 6 of the Agreement on Safe guards and Article XIX:1(a) of the 
GATT 1994. 
(g) The measures at issue do not exempt all of the developing countries whose share of 
imports does not exceed 3 per cent.  More over, the required parallelism between the 
substantive evaluation of the determinations of increased imports, serious injury and causal link on the one hand, and the coverage of the measures at issue as regards origin on the other, was not respected.  These omissions are inconsistent with 
Articles 2.1, 2.2, 4.2(a), 4.2(b), 4.2(c), 5. 1, 6 and 9.1 of the Agreement on Safeguards, 
and Article XIX:1(a) of the GATT 1994. 
(h) The preliminary and final determinations do not contain any reasoned and adequate 
findings and conclusions as to the reasons wh y certain information was considered to 
be confidential without requiring non-confid ential summaries or why that information 
could not be summarized in a non-confidential manner.  These omissions are contrary 
to Articles 3.1 and 3.2 of the Agreement on Safeguards. 
(i) The preliminary and final determinations do not contain any reasoned and adequate 
findings and conclusions as to the need for the safeguard measure to facilitate 
adjustment of the domestic industry.  This omission is inconsistent with Articles 3.1, 
4.2(c), and 5.1 of the Agreement on Safeguards. 
(j) The resolutions and reports made public  concerning the preliminary and final 
determinations do not contain the reasoned and adequate findings and conclusions on 
all issues of fact and law supporting the impos ition of the measures in question.  This 
omission is inconsistent with Articles 3.1 and 4.2(c) of the Agreement on Safeguards. 
(k) Finally, the Dominican Republic failed to provide the Members having a substantial 
interest as exporters of the products con cerned adequate opportunity for consultations 
prior to the adoption of the definitive measu re.  Nor did the Dominican Republic seek 
to agree on any adequate means of trade co mpensation for the adverse effects of the 
measures on the trade of other Members.  This omission is inconsistent with Articles 8.1 and 12.3 of the Agreement on Safeguards and Article XIX:2 of the 
GATT 1994. 
 In any case, Guatemala considers that: 
 
(l) The measures at issue are inconsistent with Article I:1 of the GATT 1994 in that they 
are measures that are not applied to pr oducts originating in or consigned from 
particular origins, and this constitutes an advantage that has not been accorded 
immediately and unconditionally to other WTO Members. 
(m) Moreover, the measures at issue are duties and charges other than ordinary customs 
duties that are contrary to Article II:1(a) and the second sentence of Article II:1(b) of 
the GATT 1994.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page G-11 
  
   In view of the foregoing, Guatemala requests th e Dispute Settlement Body to establish a panel 
with the standard terms of reference as set out in  Article 7.1 of the DSU to examine this matter and 
the above-mentioned claims. 
 In view of the 18-month period of validity of the definitive safeguard measure and to ensure 
that the dispute settlement system provides an effective solution to th is dispute, Guatemala hopes that 
the Panel will issue the final report to the parties as soon as possible, and in any case not later than the 
period of six months from the date that the com position and terms of refere nce of the Panel were 
agreed upon, as stipulated in Article 12.8 of the DSU. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page G-12   
  ANNEX G-3 
 
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY HONDURAS 
 
 
WORLD TRADE  
ORGANIZATION   
WT/DS417/7 
6 January 2011  
 
(11-0013) 
 Original:   Spanish 
  
DOMINICAN REPUBLIC - SAFEGUARD MEASURES ON IMPORTS OF 
POLYPROPYLENE BAGS AND TUBULAR FABRIC 
 
Request for the Establishment of a Panel by Honduras 
  
 The following communication, dated 20 December 2010, from the delegation of Honduras to 
the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU. 
 
_______________ 
  
 On 18 October 2010, Honduras requested cons ultations with the Dominican Republic 
pursuant to Article 4 of the Understanding on Ru les and Procedures 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 co ncerning the provisional and definitive safeguard 
measures imposed by the Dominican Republic on impor ts of polypropylene bags and tubular fabric 
and the investigation that led to the imposition of those measures. 
  Honduras and the Dominican Republic held c onsultations on 16 and 17 November 2010.  
Unfortunately, these consultations failed to settle the di spute.  Accordingly, pursuant to Article 6 of 
the DSU and Article 14 of the Agreement on Safeguar ds, Honduras requests that at its next meeting, 
scheduled for 25 January 2011, the Dispute Settlement  Body establish a panel with the standard terms 
of reference as set out in Article 7.1 of the DSU to  examine this matter and the claims set forth below. 
 A. B
ACKGROUND AND MEASURES AT ISSUE  
 The measures at issue were imposed pursuant to an investigation conducted by the Regulatory 
Commission on Unfair Trade Practices and Safe guard Measures of the Dominican Republic 
(hereinafter "the Commission").  
1. Initiation of the safeguard investigation 
 On 15 December 2009, at the request of  the company FERSAN S.A. (hereinafter 
"FERSAN"), the Commission declared the initiation of an investigation with a view to the application  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page G-13 
  
  of safeguard measures on imports from all origins of  polypropylene bags and tubular fabric classified 
under subheadings 5407.20.20, 6305.33.10 and 6305.33.90 of the Tariff of the Dominican Republic 
(hereinafter "the initiating resolution").
1  On 17 December 2009, the Commission published a notice 
of initiation of an investigation.2 
 
2. Preliminary determination 
 On 16 March 2010, the Commission decided to impose a provisional safeguard of 38 per cent 
on imports of polypropylene bags and tubular fa bric classified under subheadings 5407.20.20 and 
6305.33.90 of the Tariff of the Dominican Republic.  It was also decided to exclude from the application of the measure imports from Mexi co, Panama, Colombia and Indonesia pursuant to 
Article 9.1 of the Agreement on Safeguards.
3  The duration of the provisional safeguard measure was 
200 days.  On 25 March 2010, the Commission pub lished a notice of application of provisional 
measures on imports of polypropyl ene bags and tubular fabric.4 
 
3. Final determination 
 On 5 October 2010, the Commission decided to  impose a definitive safeguard of 38 per cent 
on imports of polypropylene bags and tubular fa bric classified under subheadings 5407.20.20 and 
6305.33.90 of the Tariff of the Dominican Republic.5  The Commission then issued a notice of 
application of the definitive measures on impor ts of polypropylene bags and tubular fabric.6  In that 
notice and in the final resolution, the Commission pointed out that pursuant to Article 9.1 of the Agreement on Safeguards, the definitive safeguard measure would not apply to imports from Mexico, 
Panama, Colombia and Indonesia.  The measure is being applied for 18 months starting on 
18 October 2010. 
 
 Thus, for Honduras, the measures at issue cover all of the resolutions, technical reports and 
notices mentioned above as regards the actions and omissions of the authorities of the Dominican Republic during the investigation and im position of the safeguard measures, including the 
methodology, calculations, comparisons, determ inations, procedures or general practices. 
 
                                                      
1 Commission Resolution CDC-RD-SG-046- 2009 of 15 December 2009;  initial technical report of the 
Commission dated 20 November 2009. 
2 Notice, general safeguard investigation concerning textiles of man-made filament yarn and bags of 
polyethylene and polypropylene, dated 15 December 2009. 
3 Resolution CDC-RD-SG-061-2010 of the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic, dated 16 March 2010 ("Preliminary Resolution").  Addendum 
to Resolution CDC-RD-SG-061-2010 dated 16 March 2010 deciding on the application of the provisional 
measures requested by Fertilizantes Sant o Domingo, C. Por A. (FERSAN) in the Polypropylene Bags and 
Tubular Fabric  case, dated 30 March 2010;  Preliminary Technical Report of the Commission (without date). 
4 Notice, general safeguard investigation concer ning tubular fabric and polypropylene bags, 
25 March 2010. 
5 Resolution CDC-RD-SG-089-2010 of the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic, dated 5 October 2010 ("Final Resolution");  Final Technical 
Report of the Commission, dated 13 July 2010. 
6 Notice, general safeguard investigation concerning tubular fabric and polypropylene bags, dated 
6 October 2010. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page G-14   
  B. L
EGAL BASIS FOR THE COMPLAINT  
 Honduras notes that according to Article 11.1(a) of the Agreement on Safeguards, a Member 
shall not take or seek a safeguard action unless su ch action conforms with the provisions of 
Article XIX of the GATT 1994 applied in accordance with the Agreement on Safeguards.  In this 
connection, Honduras considers that:  
(a) The Commission's preliminary and final dete rminations do not contain reasoned and 
adequate findings and conclusions with resp ect to the various relevant factual and 
legal aspects of the determin ations relating to the produc t under investigation, the 
domestic like product, and the domestic industr y, and this affects the determinations 
of increased imports, serious injury a nd causality that stem from those prior 
determinations.  These omissions are inconsistent with Articles 2.1, 3.1, 4.1(a), 
4.1(c), 4.2(a), 4.2(b), 4.2(c) and 6 of the Agreement on Safeguards, and 
Article XIX:1(a) of the GATT 1994. 
(b) The preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions regarding the a lleged unforeseen developments and to 
explain how those developments resulted in increased imports of the specific products covered by the safeguard measure.  These omissions are inconsistent with 
Articles 3.1, 4.2(a), 4.2(b), 4.2(c), 6 and 11.1(a) of the Agreement on Safeguards and 
Article XIX:1(a) of the GATT 1994. 
(c) Moreover, the preliminary and final dete rminations do not contain reasoned and 
adequate findings and conclusions with respect  to the alleged effect of the obligations 
incurred under the GATT 1994, and how that effect would have resulted in increased 
imports of the specific products covered by  the safeguard measure.  These omissions 
are inconsistent with Articles 3.1, 4.2( a), 4.2(b), 4.2(c), 6 and 11.1(a) of the 
Agreement on Safeguards and Artic le XIX:1(a) of the GATT 1994. 
(d) Nor do the preliminary and final determin ations contain reasoned and adequate 
findings and conclusions with respect to the alleged increase in imports of the specific 
products under investigation, in absolute terms or relative to domestic production.  
These omissions are contrary to Articles 2.1, 3.1, 4.2(a), 4.2(b), 4.2(c), and 6 of the 
Agreement on Safeguards and Artic le XIX:1(a) of the GATT 1994. 
(e) Furthermore, although the state of the domes tic industry was found to be favourable, 
the preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions as to the existence of the alleged serious injury, understood 
as significant overall impairment of the domestic industry.  Nor does the preliminary 
determination contain any reasoned and ad equate findings and conclusions with 
regard to the critical circumstances to justif y the provisional measure, or with regard 
to all of the factors that are required to be  examined for the determination of serious 
injury.  These omissions are inconsistent with Articles 2.1, 3.1, 4.1(a), 4.2(a), 4.2(b), 4.2(c) and 6 of the Agreement on Safe guards and Article XIX:1(a) of the 
GATT 1994. 
(f) Nor, at the same time, do the preliminary and final determinations contain reasoned 
and adequate findings and c onclusions regarding the causal link between the alleged 
increase in imports and the serious injury to  the domestic industry.  In particular,  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page G-15 
  
  these determinations do not contain the anal ysis substantiating the causal relationship 
between the alleged increased imports and the alleged serious injury to the domestic 
injury.  Nor is it explained how the injury to the domestic industry caused by factors 
other than imports was not attributed to the imports of the products under 
investigation.  These omissions are contrary to Articles 2.1, 3.1, 4.1(a), 4.2(a), 4.2(b), 
4.2(c) and 6 of the Agreement on Safe guards and Article XIX:1(a) of the 
GATT 1994. 
(g) The measures at issue do not exempt all of the developing countries whose share of 
imports does not exceed 3 per cent.  More over, the required parallelism between the 
substantive evaluation of the determinations of increased imports, serious injury and causal link on the one hand, and the coverage of the measures at issue as regards origin on the other, was not respected.  These omissions are inconsistent with 
Articles 2.1, 2.2, 4.2(a), 4.2(b), 4.2(c), 5. 1, 6 and 9.1 of the Agreement on Safeguards, 
and Article XIX:1(a) of the GATT 1994. 
(h) The preliminary and final determinations do not contain any reasoned and adequate 
findings and conclusions as to the reasons wh y certain information was considered to 
be confidential without requiring non-confid ential summaries or why that information 
could not be summarized in a non-confidential manner.  These omissions are contrary 
to Articles 3.1 and 3.2 of the Agreement on Safeguards. 
(i) The preliminary and final determinations do not contain any reasoned and adequate 
findings and conclusions as to the need for the safeguard measure to facilitate 
adjustment of the domestic industry.  This omission is inconsistent with Articles 3.1, 
4.2(c), and 5.1 of the Agreement on Safeguards. 
(j) The resolutions and reports made public  concerning the preliminary and final 
determinations do not contain the reasoned and adequate findings and conclusions on 
all issues of fact and law supporting the impos ition of the measures in question.  This 
omission is inconsistent with Articles 3.1 and 4.2(c) of the Agreement on Safeguards. 
(k) Finally, the Dominican Republic failed to provide the Members having a substantial 
interest as exporters of the products con cerned adequate opportunity for consultations 
prior to the adoption of the definitive measu re.  Nor did the Dominican Republic seek 
to agree on any adequate means of trade co mpensation for the adverse effects of the 
measures on the trade of other Members.  This omission is inconsistent with Articles 8.1 and 12.3 of the Agreement on Safeguards and Article XIX:2 of the 
GATT 1994. 
 In any case, Honduras considers that: 
 
(l) The measures at issue are inconsistent with Article I:1 of the GATT 1994 in that they 
are measures that are not applied to pr oducts originating in or consigned from 
particular origins, and this constitutes an advantage that has not been accorded 
immediately and unconditionally to other WTO Members. 
(m) Moreover, the measures at issue are duties and charges other than ordinary customs 
duties that are contrary to Article II:1(a) and the second sentence of Article II:1(b) of 
the GATT 1994. WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page G-16   
   In view of the foregoing, Honduras requests th e Dispute Settlement Body to establish a panel 
with the standard terms of reference as set out in  Article 7.1 of the DSU to examine this matter and 
the above-mentioned claims. 
  In view of the 18-month period of validity of the definitive safeguard measure and to ensure 
that the dispute settlement system provides an eff ective solution to this di spute, Honduras hopes that 
the Panel will issue the final report to the parties as soon as possible, and in any case not later than the 
period of six months from the date that the com position and terms of refere nce of the Panel were 
agreed upon, as stipulated in Article 12.8 of the DSU.    
  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page G-17 
  
  ANNEX G-4 
 
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY EL SALVADOR 
 
 
WORLD TRADE  
ORGANIZATION   
WT/DS418/7 
6 January 2011  
 
(11-0014) 
 Original:   Spanish 
  
 
DOMINICAN REPUBLIC - SAFEGUARD MEASURES ON IMPORTS OF 
POLYPROPYLENE BAGS AND TUBULAR FABRIC 
 
Request for the Establishment of a Panel by El Salvador 
 
 
 The following communication, dated 20 Decemb er 2010, from the delegation of El Salvador 
to the Chairman of the Dispute Settlement Body, is  circulated pursuant to Article 6.2 of the DSU. 
 
_______________ 
 
  On 19 October 2010, El Salvador requested consultations with the Dominican Republic 
pursuant to Article 4 of the Understanding on Ru les and Procedures 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 co ncerning the provisional and definitive safeguard 
measures imposed by the Dominican Republic on impor ts of polypropylene bags and tubular fabric 
and the investigation that led to the imposition of those measures.   El Salvador and the Dominican Republic held  consultations on 16 and 17 November 2010.  
Unfortunately, these consultations failed to settle the di spute.  Accordingly, pursuant to Article 6 of 
the DSU and Article 14 of the Agreement on Safeguards,  El Salvador requests that  at its next meeting, 
scheduled for 25 January 2011, the Dispute Settlement  Body establish a panel with the standard terms 
of reference as set out in Article 7.1 of the DSU to  examine this matter and the claims set forth below. 
 A. B
ACKGROUND AND MEASURES AT ISSUE  
 The measures at issue were imposed pursuant to an investigation conducted by the Regulatory 
Commission on Unfair Trade Practices and Safe guard Measures of the Dominican Republic 
(hereinafter "the Commission").  WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page G-18   
  1. Initiation of the safeguard investigation 
 On 15 December 2009, at the request of  the company FERSAN S.A. (hereinafter 
"FERSAN"), the Commission declared the initiation of an investigation with a view to the application 
of safeguard measures on imports from all origins of  polypropylene bags and tubular fabric classified 
under subheadings 5407.20.20, 6305.33.10 and 6305.33.90 of the Tariff of the Dominican Republic (hereinafter "the initiating resolution").
1  On 17 December 2009, the Commission published a notice 
of initiation of an investigation.2 
 
2. Preliminary determination 
 On 16 March 2010, the Commission decided to impose a provisional safeguard of 38 per cent 
on imports of polypropylene bags and tubular fa bric classified under subheadings 5407.20.20 and 
6305.33.90 of the Tariff of the Dominican Republic.  It was also decided to exclude from the 
application of the measure imports from Mexi co, Panama, Colombia and Indonesia pursuant to 
Article 9.1 of the Agreement on Safeguards.3  On 25 March 2010, the Commission published a notice 
of application of provisional measures on impor ts of polypropylene bags  and tubular fabric.4  T h e  
duration of the provisional safeguard measure was 200 days.  
3. Final determination 
 On 5 October 2010, the Commission decided to  impose a definitive safeguard of 38 per cent 
on imports of polypropylene bags and tubular fa bric classified under subheadings 5407.20.20 and 
6305.33.90 of the Tariff of the Dominican Republic.
5  The Commission then issued a notice of 
application of the definitive measures on impor ts of polypropylene bags and tubular fabric.6  In that 
notice and in the final resolution, the Commission pointed out that pursuant to Article 9.1 of the 
Agreement on Safeguards, the definitive safeguard measure would not apply to imports from Mexico, 
Panama, Colombia and Indonesia.  The measure is being applied for 18 months starting on 
18 October 2010.   Thus, for El Salvador, the measures at issue c over all of the resolutions, technical reports and 
notices mentioned above as regards the actions and omissions of the authorities of the 
Dominican Republic during the investigation and im position of the safeguard measures, including the 
methodology, calculations, comparisons, determ inations, procedures or general practices. 
                                                      
1 Commission Resolution CDC-RD-SG-046- 2009 of 15 December 2009;  initial technical report of the 
Commission dated 20 November 2009. 
2 Notice, general safeguard investigation concerning textiles of man-made filament yarn and bags of 
polyethylene and polypropylene, dated 15 December 2009. 
3 Resolution CDC-RD-SG-061-2010 of the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic, dated 16 March 2010 ("Preliminary Resolution").  Addendum 
to Resolution CDC-RD-SG-061-2010 dated 16 March 2010 deciding on the application of the provisional 
measures requested by Fertilizantes Sant o Domingo, C. Por A. (FERSAN) in the Polypropylene Bags and 
Tubular Fabric  case, dated 30 March 2010;  Preliminary Technical Report of the Commission (without date). 
4 Notice, general safeguard investigation concer ning tubular fabric and polypropylene bags, 
25 March 2010. 
5 Resolution CDC-RD-SG-089-2010 of the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican Republic, dated 5 October 2010 ("Final Resolution");  Final Technical 
Report of the Commission, dated 13 July 2010. 
6 Notice, general safeguard investigation concerning tubular fabric and polypropylene bags, dated 
6 October 2010.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page G-19 
  
   
B. L
EGAL BASIS FOR THE COMPLAINT  
 El Salvador notes that according to Article  11.1(a) of the Agreement on Safeguards, a 
Member shall not take or seek a safeguard action unless such action conforms with the provisions of 
Article XIX of the GATT 1994 applied in accordance with the Agreement on Safeguards.  In this 
connection, El Salvador considers that:  
(a) The Commission's preliminary and final dete rminations do not contain reasoned and 
adequate findings and conclusions with resp ect to the various relevant factual and 
legal aspects of the determin ations relating to the produc t under investigation, the 
domestic like product, and the domestic industr y, and this affects the determinations 
of increased imports, serious injury a nd causality that stem from those prior 
determinations.  These omissions are inconsistent with Articles 2.1, 3.1, 4.1(a), 
4.1(c), 4.2(a), 4.2(b), 4.2(c) and 6 of the Agreement on Safeguards, and 
Article XIX:1(a) of the GATT 1994. 
(b) The preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions regarding the a lleged unforeseen developments and to 
explain how those developments resulted in increased imports of the specific products 
covered by the safeguard measure.  These omissions are inconsistent with 
Articles 3.1, 4.2(a), 4.2(b), 4.2(c), 6 and 11.1(a) of the Agreement on Safeguards and 
Article XIX:1(a) of the GATT 1994. 
(c) Moreover, the preliminary and final dete rminations do not contain reasoned and 
adequate findings and conclusions with respect  to the alleged effect of the obligations 
incurred under the GATT 1994, and how that effect would have resulted in increased 
imports of the specific products covered by  the safeguard measure.  These omissions 
are inconsistent with Articles 3.1, 4.2( a), 4.2(b), 4.2(c), 6 and 11.1(a) of the 
Agreement on Safeguards and Artic le XIX:1(a) of the GATT 1994. 
(d) Nor do the preliminary and final determin ations contain reasoned and adequate 
findings and conclusions with respect to the alleged increase in imports of the specific 
products under investigation, in absolute terms or relative to domestic production.  
These omissions are contrary to Articles 2.1, 3.1, 4.2(a), 4.2(b), 4.2(c), and 6 of the 
Agreement on Safeguards and Artic le XIX:1(a) of the GATT 1994. 
(e) Furthermore, although the state of the domes tic industry was found to be favourable, 
the preliminary and final determinations  do not contain reasoned and adequate 
findings and conclusions as to the existence of the alleged serious injury, understood 
as significant overall impairment of the domestic industry.  Nor does the preliminary determination contain any reasoned and ad equate findings and conclusions with 
regard to the critical circumstances to justif y the provisional measure, or with regard 
to all of the factors that are required to be  examined for the determination of serious 
injury.  These omissions are inconsistent with Articles 2.1, 3.1, 4.1(a), 4.2(a), 4.2(b), 
4.2(c) and 6 of the Agreement on Safe guards and Article XIX:1(a) of the 
GATT 1994. 
(f) Nor, at the same time, do the preliminary and final determinations contain reasoned 
and adequate findings and c onclusions regarding the causal link between the alleged WT/DS415/R/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page G-20   
  increase in imports and the serious injury to  the domestic industry.  In particular, 
these determinations do not contain the anal ysis substantiating the causal relationship 
between the alleged increased imports and the alleged serious injury to the domestic 
injury.  Nor is it explained how the injury to the domestic industry caused by factors other than imports was not attributed to the imports of the products under 
investigation.  These omissions are contrary to Articles 2.1, 3.1, 4.1(a), 4.2(a), 4.2(b), 
4.2(c) and 6 of the Agreement on Safe guards and Article XIX:1(a) of the 
GATT 1994. 
(g) The measures at issue do not exempt all of the developing countries whose share of 
imports does not exceed 3 per cent.  More over, the required parallelism between the 
substantive evaluation of the determinations of increased imports, serious injury and causal link on the one hand, and the coverage of the measures at issue as regards 
origin on the other, was not respected.  Th ese omissions are inconsistent with Articles 
2.1, 2.2, 4.2(a), 4.2(b), 4.2(c), 5.1, 6 and 9.1 of the Agreement on Safeguards, and 
Article XIX:1(a) of the GATT 1994. 
(h) The preliminary and final determinations do not contain any reasoned and adequate 
findings and conclusions as to the reasons wh y certain information was considered to 
be confidential without requiring non-confid ential summaries or why that information 
could not be summarized in a non-confidential manner.  These omissions are contrary 
to Articles 3.1 and 3.2 of the Agreement on Safeguards. 
(i) The preliminary and final determinations do not contain any reasoned and adequate 
findings and conclusions as to the need for the safeguard measure to facilitate 
adjustment of the domestic industry.  This omission is inconsistent with Articles 3.1, 
4.2(c), and 5.1 of the Agreement on Safeguards. 
(j) The resolutions and reports made public  concerning the preliminary and final 
determinations do not contain the reasoned and adequate findings and conclusions on 
all issues of fact and law supporting the impos ition of the measures in question.  This 
omission is inconsistent with Articles 3.1 and 4.2(c) of the Agreement on Safeguards. 
(k) Finally, the Dominican Republic failed to provide the Members having a substantial 
interest as exporters of the products con cerned adequate opportunity for consultations 
prior to the adoption of the definitive measu re.  Nor did the Dominican Republic seek 
to agree on any adequate means of trade co mpensation for the adverse effects of the 
measures on the trade of other Members.  This omission is inconsistent with Articles 8.1 and 12.3 of the Agreement on Safeguards and Article XIX:2 of the 
GATT 1994. 
 In any case, El Salvador considers that: 
 
(l) The measures at issue are inconsistent with Article I:1 of the GATT 1994 in that they 
are measures that are not applied to pr oducts originating in or consigned from 
particular origins, and this constitutes an advantage that has not been accorded 
immediately and unconditionally to other WTO Members.  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page G-21 
  
  (m) Moreover, the measures at issue are duties and charges other than ordinary customs 
duties that are contrary to Article II:1(a) and the second sentence of Article II:1(b) of 
the GATT 1994. 
 In view of the foregoing, El Salvador requ ests the Dispute Settlement Body to establish a 
panel with the standard terms of reference as set out  in Article 7.1 of the DSU to examine this matter 
and the above-mentioned claims.  
 In view of the 18-month period of validity of the definitive safeguard measure and to ensure 
that the dispute settlement system provides an effectiv e solution to this dispute, El Salvador hopes that 
the Panel will issue the final report to the parties as soon as possible, and in any case not later than the 
period of six months from the date that the com position and terms of refere nce of the Panel were 
agreed upon, as stipulated in Article 12.8 of the DSU. 
 
_______________ 
 
  WT/DS415/R/Add.1 
 WT/DS416/R/Add.1 
 WT/DS417/R/Add.1 
 WT/DS418/R/Add.1 
 Page H-1 
  
  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/Add.1 
WT/DS416/R/Add.1 WT/DS417/R/Add.1 
WT/DS418/R/Add.1 
Page H-2   
  ANNEX H 
 
COMMUNICATION FROM THE PANEL IN RESPONSE TO THE REQUEST BY 
THE DOMINICAN REPUBLIC FOR A PRELIMINARY RULING 
 
(12 May 2011) 
 
 
 On 18 April 2011, the Dominican Republic, as the responding party in the dispute, requested the Panel to issue a preliminary ruling determin ing that GATT Article XIX and the Agreement on 
Safeguards were not applicable to the present disput e and that this dispute was therefore devoid of 
purpose.  The Dominican Republic also requested the Panel to suspend the present proceedings until it 
had issued its preliminary ruling and to postpone th e deadlines provided for in the timetable, including 
the deadline for the Dominican Republic to present its first written submission. 
  On 21 April 2011, the Panel invited the comp laining parties to respond in writing to the 
Dominican Republic's request and informed the parti es that, for the time being, the deadlines provided 
for in the timetable would be maintained, incl uding those for the Dominican Republic and the 
third parties to present their written submissions.  On 21 April and 3 May 2011, the complaining 
parties submitted their response to the Dominica n Republic's request for a preliminary ruling. 
  Having considered the written submissions of  the Dominican Republic and the complaining 
parties, the Panel considers it inappropriate  to make a preliminary ruling on whether 
GATT Article XIX and the Agreement on Safeguards are applicable to the present dispute.  The Panel 
thus considers it inappropriate to suspend the pro ceedings and postpone the deadlines provided for in 
the timetable.   The Panel also notes the argument put forward by the Dominican Republic concerning the Panel's alleged lack of jurisdiction to rule in a dispute that relates to the violation of concessions 
granted outside the WTO sphere.  The Panel notes the response of the complainants in this respect.  
Since the Dominican Republic did not request a preliminary ruling on this argument, the Panel 
considers it unnecessary to refer to it at the present time.   The Panel invites the parties to develop their arguments on the issues raised by the 
Dominican Republic.  It will also consider with inte rest any arguments put forward by third parties in 
relation to these issues.  The Panel reserves the right to submit questions to the parties and 
third parties on the issues rai sed by the Dominican Republic. 
  The Panel will rule on the issues raised by the Dominican Republic in its final report. 
 
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