WT/DS399/R 
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ANNEX B 
 
 
EXECUTIVE SUMMARIES OF  THIRD PARTIES'  
WRITTEN SUBMISSIONS 
 
 
Contents Page 
Annex B-1 Executive Summary of the Third Party Written Submission of the 
European Union  B-2 
Annex B-2 Executive Summary of the Third Party Written Submission of 
Japan B-4 
 WT/DS399/R 
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ANNEX B-1 
  
EXECUTIVE SUMMARY OF TH E THIRD PARTY WRITTEN 
SUBMISSION OF THE EUROPEAN UNION  
 
 
1. The European Union intervenes in this dispute because of its  interest in the correct 
interpretation of the Transitional Product-Spec ific Safeguard Mechanism  (the "TPSSM") laid down in 
Article 16 of the Protocol on Accession of the People's Republic of China  (the "Protocol"). 
2. The present dispute raises complex factual issues on which the European Union is not in a 
position to comment.  The European Union will not, therefore, express any views on the compatibility 
of the measure in dispute with the requirements of Article 16 of the Protocol.  
3. China's First Written Submission stresses certa in textual differences between the TPSSM, on 
the one hand, and GATT Article XIX and the AS, on th e other.  China's analysis, however, fails to 
consider the most important differences.  
4. First, China glosses over the crucial fact that, unlike GATT Article XIX, the TPSSM does not 
provide that the increase of imports must be the r esult of "unforeseen developments".  Furthermore, 
China also disregards that, consistent with the omission of that circumstance, Article 16 of the 
Protocol does not, unlike GATT Article XIX and the AS, characterise the measures taken pursuant to 
the TPSSM as "emergency actions".   
5. Second , the TPSSM lays down a different standard  of injury.  GATT Article XIX and the AS 
require that the increase in imports must be such as to cause " serious  injury" or threat thereof.  In 
contrast, under the TPSSM, it is enough if the increase in imports causes " material  injury" or threat 
thereof.  The Appellate Body has observed "the word 'serious' connotes a much higher standard of 
injury than the word 'material'".  
6. Third , while the TPSSM uses similar words as the AS and GATT Article XIX in order to 
describe the requirement of increased imports ("bei ng imported […] in such increased quantities"), the 
Appellate Body has underlined that those terms must  be interpreted in the specific context in which 
they appear.  In the case of the AS and GATT Article  XIX, that context includes the circumstance that 
the increased imports must be the result of "unf oreseen developments", as well as the condition that 
they must cause "serious injury".  Relying on tho se two contextual elements, the Appellate Body has 
concluded that the increase in im ports must be "recent" and "sudden".  In the TPSSM the terms "being 
imported […] in such increased quantities" appear in a very different context.  In view of these 
contextual differences, the increase in imports required under the TPSSM can be, to paraphrase the 
Appellate Body, less recent, less sudden, less sh arp and less significant than that required under 
GATT Article XIX and the AS. 
7. Last, it is worth noting that Article 16.6 of the Protocol allows China to suspend the 
application of substantially equi valent concessions or obligations under the GATT to the trade of a 
Member applying a safeguard measure on the basis of a relative increase in the level of imports only 
if such a measure remains in effect more than tw o years.  In contrast, GATT Article XIX and the AS 
allow for the immediate adoption of suspensi on of concessions in the same situation.  
8. When the minor textual differences invoked by China are considered in the light of the 
fundamental differences discussed above, it becomes clear that the former do not have the implications alleged by China.  WT/DS399/R 
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9. If the TPSSM uses the term "rapidly" it is precisel y because, due to the contextual differences 
discussed above, there is no requirement that the in crease be "sudden", or at least as "sudden" as 
under GATT Article XIX and the AS.  
10. Despite the minor grammatical differences highlig hted by China, the phrase "imports […] are 
increasing" has the same meaning as the phrase "bei ng imported […] in such increased quantities", as 
already interpreted by the Appellate Body. 
11. Although GATT Article XIX and the AS do not expr essly require that increased imports be a 
"significant" cause of injury, the Appellate Body h as clarified that there must be a "genuine and 
substantial  relationship of cause and effect".  On the basis of any of the ordinary meanings of those 
terms, China would be wrong in arguing that increas ed imports must be a less "important" cause of 
injury under GATT Article XIX and the AS than under the TPSSM.  Indeed, some of the ordinary 
meanings strongly suggest that, if anything, unde r GATT Article XIX and the AS increased imports 
must be an even more "important" cause of injury. 
12. Finally, China's restrictive interpretation of the TPSSM finds no support in the "object and 
purpose" of the Protocol.  The Protocol may "impose obligations on China that are not imposed on 
other Members under the WTO Agreement, or are stri cter than those applicab le to other Members". 
The TPSSM is one such obligation.  Furthermore, th e Protocol constitutes a single 'package' of rights 
and obligations.  The obligations imposed upon Chin a by the TPSSM have their counterpart in other 
provisions of the Protocol conferring rights on Chin a, including provisions that accord a transitional 
period to China for implementing certain obligations.         
 
 WT/DS399/R 
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 ANNEX B-2 
 
 
EXECUTIVE SUMMARY OF THE THIRD PARTY  
WRITTEN SUBMISSION OF JAPAN  
 
 
I. INTRODUCTION 
 
1. In this third party submission, Japan would like to present its views on systemic aspects of the 
following issues:  (a) reasoned and adequate explan ation of importing Members' decision to impose a 
transitional safeguard measure;  (b) implication of the Agreement on Safeguards  and the Article XIX 
of the General Agreement on Ta riffs and Trade 1994  (the " GATT ");  (c) the substantive obligation to 
determine the existence of market disruption;  (d) to the extent necessary to prevent or remedy market 
disruption;  and (e) period of time as may be necessary to prevent or remedy market disruption.  
II. DISCUSSION 
 
A. REASONED AND ADEQUATE EXPLANATION OF IMPORTING MEMBERS' 
DECISION TO IMPOSE A TRANSITIONAL SAFEGUARD MEASURE 
 2. Article 11 of the Understanding on Rules and Procedures Governing the Settlement of 
Dispute  (the " DSU ") sets forth the standard of review of the Panel that it "should make an objective 
assessment of the matter before it, including an obj ective assessment of the facts of the case and the 
applicability of and conformity with the relevant covered agreements." 
 3. As the Appellate Body stated "an 'objectiv e assessment' under Article 11 of the DSU must be 
understood in the light of the obligations of the pa rticular covered agreement at issue in order to 
derive the more specific contours of the appropriate standard of review."
1  The covered agreement in 
this case is the Protocol . 
 4. In the context of Agreement on Safeguards , the Appellate Body clarified that the standard of 
review of the panel in connection with the specific obligation dictates the actions that an investigating 
authority must have taken in its safeguard inves tigation.  The Appellate Body found that the Panel 
was obliged to assess whether the comp etent authorities had examined all the relevant facts and had 
provided a reasoned explanation of how the facts supported their determination .2 
 5. The rationale under the Agreement on Safeguards , together taking account of case laws 
developed under the Agreement on Subsidies and Countervailing Measures and the Agreement on 
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 , would provide a 
good framework for this Panel to consider the Member 's obligations derived from the Article 11 of the 
DSU  and specific obligation under Section 16 of the Protocol .  The "determination" requirement is 
significant in clarifying the importing Member's obligation. Paragraph 16.4 of the Protocol obliges 
the importing Member to "determin[e]
" if market disruption exists by reference to the definition of 
market disruption that imports of an article are increasing rapidly so as to be a significant cause of 
material injury and to "consider objective factors , including the volume of imports, the effect of 
imports on prices for like or directly competitive ar ticles, and the effect of such imports on the 
domestic industry".3   
                                                      
1 See Appellate Body Report, United States – Countervailing Duty Investigation on DRAMS , para. 184. 
2 See Appellate Body Report, Argentina – Footwear (EC) , para. 121 (emphasis added). 
3 The second sentence of paragraph 16.4 of the Protocol .  WT/DS399/R 
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6. Paragraphs 16.1, 16.3 and 16.6 do not exp licitly provide that the importing Member must 
"determine" particular issues.  Even if a provision does not set forth a specific obligation to "determine", the Appellate Body has explaine d that a general obligation under such provision 
nevertheless obliges the Member to provide a reas oned and adequate explanation in its notice to 
impose a measure through the context of other provi sions and stated, "Article XIX of GATT and the 
Safeguards Agreement must a fortiori  be read as representing an inseparable package  of rights and 
disciplines which have to be considered in conjunction."
4  Since, these provisions are an "inseparable 
package of rights and disciplines" to which the importing Member is entitled and to which it is 
obliged to obey before imposition of a transitional safeguard measure, as explained by the Appellate 
Body, these provisions "have to be considered in conjunction." 
 7. Paragraph 16.5 of the Protocol  requires the importing Member to "provide written notice of 
the decision to apply a measure, including the reaso ns for such measure and its scope and duration
."5  
This procedural requirement clarifies that satisf action of the underlying substantive requirements must 
be explicitly explained in the written notice of the decision to impose a particular transitional 
safeguard measure.   B. IMPLICATION OF THE AGREEMENT ON SAFEGUARDS AND THE ARTICLE XIX OF 
THE  GATT  TO THE PROTOCOL 
 
8. In light of the language of Section 1 of the Protocol  and the lack of any express cross-
reference to Article XIX of the GATT  or the Agreement on Safeguards , substantive rules to impose a 
transitional safeguard measure under Section 16 are separate and independent from the provisions of 
these WTO Agreements.  The text of Section 16, therefore, as required by Article 31.1 of the Vienna 
Convention
6, should be interpreted in accordance with th e ordinary meaning of the language in the 
context of Section 16 of the Protocol and the light of its object and purpose.   
 9. The Panel also should note that "these princi ples of interpretation neither require nor condone 
the imputation into a treaty of words that are not ther e or the importation into a treaty of concepts that 
were not intended."
7  While Japan agrees that prior panel and Appellate Body reports clarifying the 
language of Article XIX of the GATT  and the Agreement on Safeguards provide a good basis to 
consider the language of Section 16 of the Protocol , the Panel should carefully apply their rationale so 
as not to incorporate obligations under these WTO Ag reements in accordance with language that does 
not exist in Section 16 of the Protocol .  
 C. THE SUBSTANTIVE OBLIGATION TO DETERMINE THE EXISTENCE OF MARKET 
DISRUPTION  
 
1. Paragraph 16.4 of the Protocol :  The Requirement of "Imports of an Article Shall be 
Found to Be Increasing Rapidly" to Find the Market Disruption 
 
10. China argues that the use of the present tense in paragraph 16.4 emphasizes the need to look 
at the most recent period of time for actions under Article 16 of the Protocol .
8  As set forth in 
paragraph 16.4, the importing Member  must determine that imports "are increasing".  The ordinary 
meaning of the term "increase" is "make or become greater in size, amount or degree".9  The Protocol , 
                                                      
4 Appellate Body Report, Argentina – Footwear (EC)  , para. 81. 
5 Emphasis added. 
6 See Article 31.1 of the Vienna Conve ntion on the Law of Treaties. 
7 Appellate Body Report, India – Patent (US) , para. 45. 
8 China First Written Submission, para. 101. 
9 Concise Oxford English Dictionary, tenth edition, revised, p. 718. WT/DS399/R 
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 however, does not set forth any particular methodol ogy to determine whether imports are becoming 
greater.    11. In the context of the Agreement on Safeguards , the Appellate Body found that "the competent 
authorities are required to consider the trends  in imports over the period of investigation."
10  T h e  
panel in US – Line Pipe  drew conclusion based on the following considerations: first, the Agreement 
contains no specific rules as to the length of the peri od of investigation; second, the period selected by 
the authority allows it to focus on the recent imports; and third, the period selected by the authority is 
sufficiently long to allow conclusions to be dr awn regarding the existence of increased imports.11  
This finding may give guidance to this Panel in  reviewing the appropriateness of such period of 
investigation.  
 12. China also argues that "The increase cannot be in the past."
12  I t  m i g h t  b e  i d e a l  i f  t h e  
importing Member could base its determination as of  the time of imposition, but the nature of the 
determination inherently prevents the importing Member from doing so.  The Member necessarily 
relies on import data for a recent past period, as re cognised by the Appellate Body and panels in the 
context of anti-dumping and count ervailing duty investigations.13   
 13. With respect to the term "rapidly," the ordina ry meaning is "happening in a short time or at 
great speed".
14  The phrase "increasing rapidly" would mean that the increase should have happened 
either over a short period of time or at a sp eed greater than the or dinary speed of increase .  No fu rther 
guidance was provided in the terms or context of the Protocol.  Accordingly, the importing Member 
has certain discretion to choose a methodology to assess whether the imports are increasing rapidly.    
2. Paragraph 16.4 of the Protocol:  A Significant Cause of Material Injury 
 
14. As clarified in the panel , "significant" means something more than just a nominal or marginal 
cause
 of the material injury.15  The use of the article "a" in "a significant cause" in paragraph 16.4 
suggests that material injury does not have to be caused solely by the imports of Chinese product.  It 
would be sufficient to find the market disruption by im ports if they are one of various other factors, 
which as a whole, cause the material injury.  
15. In the context of the Agreement on Safeguards , the Appellate Body stated that "the language 
in the first sentence of Article 4.2(b) does not suggest that increased imports be the sole cause of the 
serious injury... Article 4.2(b), as a whole, suggests that "the causal link" between increased imports 
and serious injury may exist, even though other factors are also contributing… ".
16  Considering the 
similarity of the term "cause" in paragraph 16.4 of the Protocol  to the term "causal link" in the first 
sentence of Article 4.2(b) of the Agreement on Safeguards , the above-mentioned findings by the 
Appellate Body may provide a good basis in considering paragraph 16.4 of the Protocol .   
 
                                                      
10 Appellate Body Report, Argentina – Footwear (EC) , para. 129. 
11 See Panel Report, US – Line Pipe , para. 7.201. 
12 China First Written Submission, para. 74. 
13 See Panel Report, Mexico – Anti-Dumping Measures on Rice , para. 7.58; Appellate Body  Report, 
Mexico – Anti-Dumping Measures on Rice , para. 166; Panel Report, Mexico – Steel Pipes and Tubes, 
para. 7.239; Panel Report, Japan – DRAMs (Korea) , para. 7.357. 
14 Concise Oxford English Dictionary, tenth edition, revised, p. 1187. 
15 See Panel Report, EC – Countervailing Measures on DRAM Chips , para. 7.307. 
16 Appellate Body Report, US – Wheat Gluten , para. 67 (emphasis in original).  WT/DS399/R 
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 D. PARAGRAPH 16.3 OF THE PROTOCOL:  TO THE EXTENT NECESSARY TO 
PREVENT OR REMEDY MARKET DISRUPTION 
 16. Paragraph 16.3 of the Protocol  provides that the measure must be "necessary" and may not 
exceed the "extent" to prevent or remedy such ma rket disruption and such necessity and such extent 
are determined by "such market disruption".  To  justify a transitional safeguard measure, the 
importing Member must analyze the factors creating market disruption ((i) imports of Chinese products, which are increasing rapidly; (ii) the material injury to the domestic industry; and (iii) causal link between these imports and the injury) an d the measure may not extend beyond the extent 
to make such factors cease to exist or be prevented from recurrence. 
 
17. Prior findings in the context of Agreement on Safeguards  would suggest that the importing 
Member would have been required to provide a reasoned and adequate explanation that the 
transitional safeguard measure addressed the above -mentioned factors, and it would not exceed the 
extent to make such factor cease t o exist or being preven ted from recurrence.  
 
18. It should be noted that the rationale of A ppellate Body reports on the lack of a general 
procedural obligation to demonstrate compliance with Article 5.1 of the Agreement on Safeguards 
would not apply to paragraph 16.3 of the Protocol . Unlike Article 5.1 of the Agreement on 
Safeguards , the Protocol  does not have any exceptions or specifi c provisions and thus , the procedural 
obligation to provide "the reasons for such measure and its scope" applies to all transitional safeguard 
measures. 
 E. PARAGRAPH 16.6 OF PROTOCOL :  ONLY FOR SUCH PERIOD OF TIME AS MAY BE 
NECESSARY TO PREVENT OR REMEDY THE MARKET DISRUPTION 
 
19. Paragraph 16.6 differs from paragraph 16.3 by providing "as may be necessary" instead of 
"(as) necessary".  The term "may" is the word "expressing possibility."
17  The words "may be" 
therefore provide that the required certainty of the necessity analysis of a transitional safeguard 
measure with respect to its period of time to impose would be less than the extent of the measure in 
paragraph 16.3.  It would be sufficient to show that such period would possibly be needed.   
20. As the Protocol  does not set forth any particular methodologies on how the importing 
Member should examine the appropriate period of the time to impose the transitional safeguard measure, the importing Member has the discretion.  It  is required, however, to provide the reasons for 
the "duration" in its written notice of the decision, according to paragraph 16.5.    III. CONCLUSION    
21. Japan respectfully requests the Panel to examin e carefully the facts presented by the parties to 
this dispute in light of Japan's arguments above to  ensure the fair and objective application of the 
provisions of the Protocol . 
                                                     
 
17 Concise Oxford English Dictionary, tenth edition, revised, p. 881.