WT/DS558/R/Add.1  
 
16 August 2023  
(23-5548) Page: 1/81 
  Original: English  
 
  
CHINA – ADDITIONAL DUTIES ON CERTAIN PRODUCTS  
FROM THE UNITED STATES  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to D to the Report of the Panel to be found in document  
WT/DS558/R . 
 
 
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LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures Concerning Substantive Meetings with 
Remote  Participation  11 
ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the United States  15 
Annex  B-2 Integrated executive summary of the arguments of China  35 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of the European Union  48 
Annex  C-2 Integrated executive summary of the arguments of Japan  53 
Annex  C-3 Integrated executive summary of the arguments of New Zealand  56 
Annex  C-4 Integrated executive summary of the arguments of Norway  57 
Annex  C-5 Integrated executive summary of the arguments of the Russian Federation  61 
Annex  C-6 Integrated executive summary of the arguments of Switzerland  65 
Annex  C-7 Integrated executive summary of the arguments of Türkiye  69 
Annex  C-8 Integrated executive summary of the arguments of Ukraine  75 
ANNEX  D 
COMMUNICATIONS BY THE PANEL  
Contents  Page  
Annex D -1 Communication by the Panel on requests for enhanced third -party rights  79 
Annex D -2 Communication by the Panel on China's request for a ruling under Article 6.2 
of the DSU  81 
 
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  ANNEX  A 
WORKING PROCEDURES OF THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures Concerning Substantive Meetings with Remote 
Participation  11 
 
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  ANNEX  A-1 
WORKING PROCEDURES OF THE PANEL  
Adopted on 5 April 2019  
General  
1. (1) In these proceedings, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) Nothing in the DSU or in these Working Procedures shall preclude a party or third party 
from disclosing statements of its own positions to the public.  
(3) If a party s ubmits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its written submissions that could be disclosed to the public.  
(4) Upon requ est, the Panel may adopt appropriate additional procedures for the treatment 
and handling of confidential information after consultation with the parties.  
Submissions  
3. (1) Before the first substantive meeting of the Panel with the parties, each party sh all 
submit a written submission in which it presents the facts of the case and its arguments, in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, before the second substantive meeting of the 
Panel, a writt en rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions during 
the proceedings, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  
Preliminary rulings  
4. (1) If China co nsiders that the Panel should make a ruling before the issuance of the Report 
that certain measures or claims in the panel request or the complainant's first written 
submission are not properly before the Panel, the following procedure applies. Exceptions to 
this procedure shall be granted upon a showing of good cause.  
a. China shall submit any such request for a preliminary ruling at the earliest possible 
opportunity and in any event no later than in its first written submission to the Panel. WT/DS558/R/Add.1  
 
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  The United Stat es shall submit its response to the request before the first substantive 
meeting of the Panel, at a time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary 
ruling reque st before, during or after the first substantive meeting, or the Panel may 
defer a ruling on the issues raised by a preliminary ruling request until it issues its 
Report to the parties.  
c. If the Panel finds it appropriate to issue a preliminary ruling befor e the issuance of its 
Report, the Panel may provide reasons for the ruling at the time that the ruling is 
made, or subsequently in its Report.   
d. Any request for such a preliminary ruling by the respondent before the first meeting, 
and any subsequent submis sions of the parties in relation thereto before the first 
meeting, shall be served on all third parties. The Panel may provide all third parties 
with an opportunity to provide comments on any such request, either in their 
submissions as provided for in the  timetable or separately. Any preliminary ruling 
issued by the Panel before the first substantive meeting on whether certain measures 
or claims are properly before the Panel shall be communicated to all third parties.  
(2) This procedure is without prejudi ce to the parties' right to request other types of 
preliminary or procedural rulings during the proceedings, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the first 
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be granted upon a showing of good cause.  
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working language of the submission. The Pa nel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or meeting ( whichever occurs earlier) following 
the submission which contains the translation in question. Any objection shall be accompanied 
by an explanation of the grounds for the objection and an alternative translation. The Panel 
may grant reasonable extensions o f time for the submission of an alternative translation upon 
a showing of good cause.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhib its throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page. Exhibits submitted by the United States should be numbered USA -1, USA -2, etc. 
Exhibits submitted by China should be numbered CHN -1, CHN-2, etc. If the last exhibit in 
connection with the first submission was numbered USA -5, the first exhibit in connection with 
the next submission thus would be numbered USA -6.  
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again.  WT/DS558/R/Add.1  
 
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  (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the official record, the cited content of the website shall be 
provided in the form of an exhibit.  
Editorial Guide  
8. In order to f acilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy 
provided).  
Questions  
9. The Panel may pose questions to the parties and third p arties at any time, including:  
a. Before any meeting, the Panel may send written questions, or a list of topics it intends 
to pursue in questioning orally during a meeting. The Panel may ask different or additional 
questions at the meeting.   
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings  
10. The Panel shall meet in closed session.  
11. The parties shall be pr esent at the meetings only when invited by the Panel to appear before  it. 
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceedings and the 
submissions of the parties and third parties.  
13. Each party shall provide to the Panel the list of members of its delegation no later th an 
5:00 p.m. (Geneva time) two (2) working days before the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficien t time to ensure availability of interpreters.  
15. The substantive meetings of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite the United States to make an opening statement to present its 
case first. Subsequently, the Panel shall invite China to present its point of view. In the second 
substantive meeting, China shall be given the opportunity to make its statement first.  
b. Before each party takes the floor, it shall provide the Panel and other partici pants at 
the meeting with a provisional written version of its statement. If interpretation is needed, 
each party shall provide additional copies for the interpreters.  
c. Each party should avoid lengthy repetition of the arguments in its submissions. Each  
party is invited to limit the duration of its opening statement to approximately one (1) hour. 
If either party considers that it requires more time for its opening statement, it should inform 
the Panel and the other party at least five (5) days prior to t he meeting, together with an 
estimate of the expected duration of its statement. The Panel will accord equal time to the 
other party.   
d. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments or a sk the other party questions.  WT/DS558/R/Add.1  
 
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  e. The Panel may subsequently pose questions to the parties.  
f. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the United States presenting its statement first. Before 
each party takes the floor, it shall provide the Panel and other participants at the meeting with 
a provisional written version of its closing statement, if available.  
g. Following the meeting:  
i. Each party shall submit a final writte n version of its opening statement no later than 
5:00 p.m. (Geneva time) on the second working day following the meeting. At the 
same time, each party should also submit a final written version of any prepared 
closing statement that it delivered at the mee ting.  
ii. Each party shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the other party to which it wishes to receive 
a response in writing.  
iii. The Panel shall send in writing, within the timefra me established by the Panel before 
the end of the meeting, any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party , within the time -frame established by the Panel 
before the end of the meeting.  
Third -party session  
16. The third parties shall be present at the meetings only when invited by the Panel to appear 
before it.  
17. (1) Each third party has the right to deter mine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Work ing 
Procedures, particularly with regard to the confidentiality of the proceedings and the 
submissions of the parties and third parties.  
18. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the Working Procedures and timetable for the proceedings, to 
allow sufficient time to ensure availability of interpreters.  
19. (1) Each third party may present its views orally during a session of the first substantive 
meeting with the parties se t aside for that purpose.  
(2) Each third party shall indicate to the Panel whether it intends to make an oral statement 
during the third -party session, along with the list of members of its delegation, in advance of 
this session and no later than 5:00  p.m. (Geneva time) two (2) working days before the third -
party session of the meeting with the Panel.  
20. The third -party session shall be conducted as follows:  
a. All parties and third parties may be present during the entirety of this session.  
b. The Panel shall first hear the oral statements of the third parties. Each third party making 
an oral statement at the third -party session shall provide the Panel and other participants 
with a provisional written version of its statement before it takes the  floor. If interpretation 
of a third party's oral statement is needed, that third party shall provide additional copies 
for the interpreters.  WT/DS558/R/Add.1  
 
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  c. Each third party should limit the duration of its statement to 15 minutes, and avoid 
repetition of the argumen ts already in its submission. If a third party considers that it 
requires more time for its opening statement, it should inform the Panel and the parties 
at least five (5) days before the meeting, together with an estimate of the expected 
duration of its s tatement. The Panel will accord equal time to all third parties for their 
statements.   
d. After the third parties have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for clarification on any matter r aised in 
that third party's submission or statement.  
e. The Panel may subsequently pose questions to any third party.  
f. Following the third -party session:  
i. Each third party shall submit the final written version of its oral statement, no later 
than 5: 00 p.m. (Geneva time) on the second working day following the meeting.  
ii. Each party may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to a third party or parties to which it 
wishes to r eceive a response in writing.  
iii. The Panel may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to a third party or parties to which it 
wishes to receive a response in writing.  
iv. Each t hird party choosing to do so shall respond in writing to written questions from 
the Panel or a party, within a timeframe established by the Panel before the end of the 
meeting.  
Descriptive part and executive summaries  
21. The description of the arguments o f the parties and third parties in the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in any way serv e 
as a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case.  
22. Each party shall submit a single integrated executive summary. The summary shall summarize 
the facts and arguments as presented to the Panel  in the party's first and second written 
submissions, its oral statements, and if possible, its responses to questions following the first and 
second substantive meetings. The timing of the submission of the integrated executive summary 
shall be indicated in the timetable adopted by the Panel.  
23. Each integrated executive summary shall be limited to no more than 30 pages.  
24. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other s ubmissions to the Panel for which a deadline may not be 
specified in the timetable.  
25. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and statement in accordance with the timetable ado pted by the Panel. This 
integrated executive summary may also include a summary of responses to questions, if relevant. 
The executive summary to be provided by each third party shall not exceed six (6)  pages. If a third -
party submission and/or oral stateme nt does not exceed six (6) pages in total, this may serve as 
the executive summary of that third party's arguments.  
Interim review  
26. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interi m report and request a further meeting with the Panel, in accordance WT/DS558/R/Add.1  
 
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  with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
27. If no further m eeting with the Panel is requested, each party may submit written comments 
on the other party's written request for review, in accordance with the timetable adopted by the 
Panel. Such comments shall be limited to commenting on the other party's written req uest for 
review.  
Interim and Final Report  
28. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
Service of documents  
29. The following procedures regarding serv ice of documents apply to all documents submitted by 
parties and third parties during the proceedings:  
a. Each party and third party shall submit all documents to the Panel by submitting them 
with the DS  Registry.  
b. Each party and third party shall submi t all documents to the Panel in Microsoft Word format 
and in PDF format as an e -mail attachment, or if impractical, on a CD -ROM or a DVD by 
5:00 p.m. (Geneva time) on the due dates established by the Panel. The PDF version shall 
constitute the official ver sion for the purposes of submission deadlines and the record of 
the dispute. Email of a document shall constitute electronic service on the Panel, the other 
party, and the third parties.  
c. All emails to the Panel shall be addressed to DSRegistry@wto.org, and copied to other 
WTO Secretariat staff whose email addresses have been provided to the parties in the 
proceedings. If a CD -ROM/DVD is provided, it shall be filed with the DS Registry (office 
No. 2047) by 5:00  p.m. (Geneva time) on the due dates establis hed by the Panel.   
d. By 5:00 p.m. (Geneva time) on the next working day following the electronic submission, 
each party and third party shall submit one  (1) paper copy of all documents it submits to 
the Panel, including the exhibits, with the DS Registry (office No. 2047). If any documents 
are in a format that is impractical to submit as a paper copy, the party shall inform the 
Panel and the other party (and third parties if appropriate) accordingly.  
e. In addition, each party and third party i s invited to submit all documents through the 
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the 
submission of the electronic versions. If the parties or third parties have any questions or 
technical difficulties rela ting to the DDSR, they are invited to consult the DDSR User Guide 
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.  
f. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in a ddition, serve any submissions in advance of the first substantive 
meeting with the Panel directly on the third parties. Each third party shall serve any 
document submitted to the Panel directly on the parties and on all other third parties. A 
party or thi rd party may serve its documents on another party or third party by email or 
on a CD -ROM or DVD.  
g. Each party and third party shall submit its documents with the DS Registry by 5:00  p.m. 
(Geneva time) on the due dates established by the Panel.  
h. As a g eneral rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Panel shall 
provide the parties with a paper copy of the Interim Report and the Final Report.  WT/DS558/R/Add.1  
 
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  Correction of clerical errors in submissions  
30. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should 
identify the natur e of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  WT/DS558/R/Add.1  
 
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  ANNEX  A-2 
ADDITIONAL WORKING PROCEDURES CONCERNING SUBSTANTIVE MEETINGS  
WITH REMOTE PARTICIPATION  
Adopted on 18 February  2022  
General  
1. These  Additional  Working  Procedures  set out terms  for holding  the substantive  meeting s of 
the Panel remotely . 
Definitions  
2. For the purposes of these Additional Working  Procedures:  
"Host" means the designated person within the WTO Secretariat responsible for the 
management of the platform for participants to take part  in the meeting with the Panel.  
"Participant" means any authorized person taking part in  the meeting, including the 
Members of the Panel, the WTO Secretariat staff involved in the dispute and the organization 
of the meeting, members of the parties' and third parties' delegations, and  interpreters.  
"Platform" means the Cisco Webex platform.  
Equipment and technical requirements  
3. Each party shall be responsible  for ensuring  that the members  of its delegation join the 
meeting using the designated platform and satisfy  the minimum equipment and technica l 
requirements of the  platform provider for the effective conduct of the  meeting.  
4. Technical questions, including the minimum equipment and technical requirements for the 
usage of the platform, will be addressed in the advance testing sessions between th e host and 
participants provided for in paragraph 7 below.  
Technical support  
5. (1) The Secretariat  has limited  ability  to offer remote  assistance  during,  and in advance of  
the meeting . Each party, therefore,  is responsible  for providing  its own technical  support to 
the members of its  delegation.  
(2) The host will assist  participants  in accessing  and using  the platform  in preparation  for, 
and during the course of, the meeting with the  Panel.  The host will prioritize assisting those 
participants de signated as main speakers on the delegations' lists.  
Pre-meeting  
Registration  
6. Each party shall provide to the Panel the list of the members of its delegation  on the dedicated 
form in Annex 1 below,  no later than 5:00 p.m. (Geneva  time) ten working days  before the start of 
the meeting . The list shall indicate those participants designated as main speakers.  WT/DS558/R/Add.1  
 
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  Advance testing  
7. The Secretariat will hold two testing sessions with participants before the substantive meeting 
with the Panel. One of these sessio ns will be a joint session with all participants in the meeting. 
These  testing sessions will seek to reflect, as far as possible, the conditions of the proposed meeting. 
Participants should make themselves available for the test ing sessions.  The Secretariat will be in 
contact with the participants to set the schedule of the testing sessions in due course.  
Confidentiality and security  
8. The meeting shall be confidential and the rules of the DSU continue to apply during the remote 
session of t he meeting.  
9. Each party shall follow  any security  and confidentiality  protocols  set by the Panel in advance 
of the  meeting.  
10. The participants shall connect to the meeting through a secure internet connection and shall 
avoid the use of an open or publi c internet  connection.  
Conduct of the meeting  
Recording  
11. The Secretariat will record the meeting  in its entirety.  The recording  of the meeting  shall form 
part of the panel  record.  
12. Any recording of the meeting or any part thereof other than that referred to in paragraph 11, 
through any means, including audio or video recording, or screenshot, is prohibited . 
Access to the virtual meeting  
13.  Participants shall access the virtual meeting in accordance with these Additional Working 
Procedures.  
14. (1) The host will invite participants via email to join the virtual meeting.  
(2)  For security  reasons,  access  to the virtual  meeting  will be password -protected  and 
limited to participants. Participa nts shall not forward or share the virtual meeting link or 
password with unauthorized  persons.  
(3) Each party shall ensure that only participants from its delegation access the  virtual 
meeting.  
Advance log -on 
15. (1) The virtual meeting room will be access ible 60 minutes in advance of the scheduled 
start time of the  meeting.  
(2) To ensure that the meeting start s as scheduled, participants must login to the platform 
at least 30 minutes in advance of the scheduled start time of the  meeting.  
(3) Participants w ill be placed in a virtual lobby where they will remain until the Panel is 
ready to start the meeting, at which time the host will admit them to the  meeting.  WT/DS558/R/Add.1  
 
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  Document sharing  
16. (1) Before each party takes the floor, it shall email  the Panel and other par ticipants at the 
meeting a provisional written version of its statement , including any exhibits . 
(2) Any participant  wishing  to share  a document  with the other  participants  during  the 
meeting  – including via screen sharing – shall email the document and confirm that the other 
participants have received the document, before first referring to the document at the 
meeting . 
Pauses for internal coordination and consultation  
17. Parties are free to internally coordinate and consult while the meeting is ongoing so long as it 
is not disruptive to the proceedings, but they should be aware that the chat feature of the platform 
is visible to all participants. The Panel may briefly pause a session at any t ime, on its own initiative 
or upon request of a party, to enable any necessary internal coordination and consultation.  
Participation  
18. Participants who are not speaking are expected to have their microphone on mute. They may 
also wish to turn off their camera to preserve bandwidth. If a participant wishes to take the floor, 
they should use the "raise a hand" function in the platform . Once  the chairperson  gives the floor to 
the participant , they should unmute their microphone and turn their camera on.  
Communication breakdown  
19. Each party will designate  a contact  person  who can liaise with the host during the course of 
the meeting to report any technical issues that arise with respect to the platform. The  parties  and 
third parties  shall immediately  notify  the Panel  of any technical  or connectivity  issues affecting  the 
participation  of their delegation,  or a member  of their delegation,  in the meeting.  To do so, the party 
that experiences the technical or connectivity issue  shall:  
(1) if possible, immediately intervene at the meeting and briefly state the nature of the 
issue experienced;  or 
(2) if doing  so is not possible,  immediately  contact the host and explain  the nature  of the 
issue experienced. The host can be contacted via the platform  chat, by sending an email to  
leslie.stephenson @wto.org, or by telephone  at +41 22 739  6148. 
20. The Panel may suspend  the proceedings until the technical issue is resolved or continue the 
proceedings  with those  that are connected.  
Relationship with the Working Procedures adopted by the Panel  
21. These Additional Working Procedures complement the Working Procedures adopt ed by  the 
Panel , and to the extent of any conflict between the two, supersede them . 
 
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 WT/DS558/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of the United States  15 
Annex  B-2 Integrated executive summary of the arguments of China  35 
 
 WT/DS558/R/Add.1  
 
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ANNEX  B-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES  
EXECUTIVE SUMMARY OF U.S. FIRST WRITTEN SUBMISSION  
1. The United States has brought this dispute to address measures adopted by China that are 
plainly inconsistent with the fundamental WTO obligations to provide Most -Favored -Nation treatment 
(MFN) and treatment no less favorable than tha t provided for in a Member's Schedule of Concessions, 
as set out respectively in Articles I and II of the General Agreement on Tariffs and Trade 1994  
("GATT  1994").  
2. Effective April 2, 2018, China applied additional duties of 15 percent or 25 percent on 128 
tariff lines for products originating in the United States.  The additional duties for all 128 tariff lines 
resulted in tariffs applied to U.S. -originating products that are higher than the rates of duty applied 
to other WTO Members on an MFN basis.  Moreover, for 123 tariff lines, the additional duties resulted 
in tariffs applied to U.S. -originating products that exceed the rates of duty set out in China's 
Schedule.  
3. On March 23, 2018, China issued the Ministry of Commerce Notice on Publicly Soliciting  
Opinions on U.S. Imported Steel and Aluminum Products 232 Measures and Chinese 
Countermeasures ("Opinions Notice").  The Opinions Notice solicited public comment regarding 
China's proposal to impose additional duties of 15 percent or 25 percent on the 128 tariff lines for 
products originating in the United States.  
4. On April 1, 2018, the day immediately following the close of the eight -day public comment 
period, China issued the State Council Customs Tariff Commission Notice on Suspension of Duty 
Conce ssion Obligations on Some Imported Products Originating from the United States 
("Implementation Notice").  The Implementation Notice imposed the additional duties with an 
effective date of April 2, 2018.  The Implementation Notice indicated that the relevant  duties of 15 
percent or 25 percent apply in addition to the currently applied tariff rates, and will be assessed on 
an ad valorem basis.  Specifically, for each tariff line, "the imposed additional tariff rate" is added to 
the "current applied tariff rate, " and the sum is multiplied by the "dutiable value" in order to calculate 
the duties owed.  
5. A list of the 128 tariff lines of U.S. -originating products subject to the additional duties is 
attached to the Opinions Notice , with a product description assign ed at the 8 -digit tariff level.  
According to the list, 120 tariff lines are subject to additional duties of 15 percent, and 8 tariff lines 
are subject to additional duties of 25 percent.  A list of the same 128 tariff lines is also included as 
an attachment  to the Implementation Notice . 
6. The 128 tariff lines of U.S. -originating products subject to additional duties fall under 6 
different chapters of the Harmonized Tariff Schedule ("HTS") and range from steel and aluminum 
products to a large number of food and agriculture products.  The Opinions Notice mentions that the 
additional duties are intended to "balance the loss inflicted on our country by the U.S. 232 Measures 
[…]."  
7. The United States will show that China has breached its MFN commitments by refer encing 
three numbers for each tariff line at issue: (1) China's applied MFN rate; (2) China's applied tariff 
rate on the U.S. -originating products before the additional duties took effect on April 2, 2018; and 
(3) China's additional duty rate on the U.S. -originating products following the April 2nd effective date.  
8. As a general matter, China's  applied MFN rates are published in an annual tariff plan.  By 
matching individual 8 -digit tariff lines, the United States was able to ascertain the applied MFN rates  
for the 128 tariff lines at issue in this dispute.  The second number the United States referenced for 
each tariff line is China's applied tariff rate on U.S. -originating products before the additional duties 
took effect on April 2, 2018.  As stated in para graph 4 of the Implementation Notice , China will 
calculate the additional duties in addition to the "current applied tariff rate."  The third figure the WT/DS558/R/Add.1  
 
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  United States referenced is China's additional duty rate on the U.S. -origin product since the effective 
date of April 2, 2018.  This number is given in the Implementation Notice  as 15 percent for 120 tariff 
lines and 25 percent for 8 tariff lines.  Read together, the three numbers the United States referenced 
for each tariff line – (1) China's applied MFN rate ; (2) China's applied tariff rate on U.S. -originating 
products before the additional duties took effect on April 2, 2018; and (3) China's additional duty 
rate on U.S. -originating products effective as of April 2, 2018 – demonstrate that  for all 128 tariff 
lines at issue in this dispute, China is applying duties higher than its MFN commitments .   
9. Moreover, the  United States will demonstrate that China has exceeded its bound rate 
commitments by referencing three figures for each tariff line: (1) China's bo und rate commitment; 
(2) China's applied tariff rate on U.S. -originating products before the additional duties took effect on 
April 2, 2018; and (3) China's additional duty rate on U.S. -originating products effective as of 
April 2, 2018.   
10. With respect to China's bound rate commitments, the United States relied on China's WTO 
accession documents and the Consolidated Tariff Schedules (CTS) database accessible via the WTO's 
Tariff Download Facility (TDF) and Tariff Analysis Online.  China's bou nd rate commitments are 
defined in the Report of the Working Party on the Accession of China Addendum Schedule CLII – 
People's Republic of China, Part I – Schedule of Concessions and Commitments on Goods . China's 
bound rates are set at the HTS 8 -digit leve l. However, China has not updated its schedule of tariff 
bindings since its accession, and available tariff binding data in TAO uses the 1996 revision of the 
Harmonized System.  China has obtained waivers from updating its bound rate commitments to 
conform to HS2002, HS2007, HS2012, and HS2017, which obscures whether China has continued 
to meet its commitments since the harmonized system and China's domestic tariff schedule have 
undergone substantial revisions over the past 20 years.  
11. Nevertheless, the Un ited States has isolated the first six digits of each 8 -digit tariff line subject 
to China's additional duties measure.  The United States converted these 6 -digit HS lines from 
HS2017 to HS1996 using a conversion table published by the United Nations Statis tics Division.  The 
United States then compared these HS1996 six -digit codes to CTS data from TDF to identify the 
highest tariff binding for all lines under each 6 -digit subheading.  The United States adopted this 
maximum bound rate as the bound rate for all  8-digit HTS lines falling under that subheading.  
12. Read together, the three figures the United States referenced for each tariff lines – (1) China's 
bound rate; (2) China's applied tariff rate on U.S. -originating products before the additional duties 
took effect on April 2, 2018; and (3) China's additional duty rate on the U .S.-originating products 
effective as of April 2, 2018 – demonstrate that  for 123 tariff lines at issue in this dispute, China 
exceeded its bound rate commitments . 
I. CHINA'S MEASURE IS INCONSISTENT WITH ITS OBLIGATIONS UNDER 
ARTICLE I:1 OF THE GATT 1994  
13. China's measure is inconsistent with Article I:1 of GATT 1994 because it fails to extend to 
certain products of the United States an advantage granted by China to like products originating in 
other countries.   
14. First, China's measure is explicitly co vered by the text of Article I:1.  A "customs duty" is a 
charge, such as those in China's measure, that is imposed on imports at the border.  The terms 
"tariff", "customs duty", and "import duty," as used in the economics and international trade law, 
are int erchangeable, at least for purposes of the matters at issue in this dispute.     
15. The MFN obligation of Article I:1 applies to both duties that have been bound as part of a WTO 
Member's schedule under Article II of GATT 1994 and to unbound duties.  It also applies to duties 
that are set below a bound rate.  Thus, Article I:1 requires a WTO Member that applies a duty rate 
below the bound rate to imports from some WTO Members to apply that same duty rate to imports 
of "like products" from all WTO Members.   
16. In this dispute, China's measure imposes an additional 15 percent or 25 percent duty on 
certain goods of the United States.  A comparison of China's applied MFN rate, its applied tariff rate 
on U.S. -originating products before the additional duties took e ffect on April 2, 2018, and its 
additional duty rate on U.S. -originating products effective as of April 2, 2018, demonstrate that for WT/DS558/R/Add.1  
 
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  all 128 tariff lines at issue in this dispute, China's rate of duty applied to U.S. originating products is 
above its MFN rate. 
17. Second, each U.S. product subject to China's measure is "like" a product from other countries 
not subject to the additional duties within the meaning of Article I:1.  As explained, China's measure 
discriminates against U.S products on the basis of  origin.  Thus, China's measure differentiates 
among products not on the basis of physical characteristics, end -use, or consumer preferences, but 
rather on a distinction that is not relevant to a "like product" analysis.   In circumstances where the 
only distinction between two sets of products is the country of origin, it may be presumed that the 
two sets are "like products."  Numerous Appellate Body and panel reports have adopted this analysis.   
18. China's measure imposes additional duties only on produc ts originating in the United States, 
and leaves unchanged the rate duty applicable to other countries, including all other WTO Members.  
U.S origin is the only criterion used by the measure for imposing additional duties on U.S. products 
covered by the 128 tariff lines, but not products from other countries entered under the same tariff 
lines.  Thus, the like product element of Article I:1 is satisfied.    
19. Third, China's additional duties measure confers an advantage on like products of other 
Members becau se it imposed additional duties on certain U.S. products, while leaving unchanged 
the rate of duty applicable to goods of all other countries, including all other WTO Members.  Article 
I:1 refers to " any advantage" granted by a WTO Member to " any product or iginating in or destined 
for any other country " (emphasis added).  Article I:1 requires that an advantage, such as a certain 
duty rate, granted by a WTO Member to a product from any country be granted to like products 
from all WTO Members.   
20. When conside ring the ordinary meaning of the term "advantage" in its context, it is evident 
that providing a lower duty rate constitutes an advantage within the meaning of Article I:1.  GATT 
and WTO panels have interpreted the term "advantage" broadly.  For purposes of this dispute, the 
analytical framework adopted by the panel in EC – Bananas  is particularly relevant.  In its analysis 
of the term "advantage," that panel determined that a measure that provides "more favorable 
competitive opportunities" or "affects the com petitive relationship" between products of different 
origin confers an "advantage" in terms of Article I:1.  
21. In this dispute, for 128 tariff lines, China subjects products from other countries to a certain 
duty rate.  U.S.-originating products that fall under the same tariff lines, however, are subject to the 
additional duties on top of that duty rate.   
22. By providing a lower rate of duty to the like products of other countries as compared to U.S. 
products, China is granting these products an advantage within the meaning of GATT Article I:1.  
23. Fourth, Article I:1 requires that China accord to like products from the United States, 
"immediately and unconditionally," the lower duties that it is providing to products from other 
countries.  The advantage pr ovided by China's measure is not "accorded immediately and 
unconditionally" to like products from the United States.   
24. The ordinary meaning of the term "immediately" does not raise any interpretative issues in 
this proceeding.  When a WTO Member grants a n advantage to products from one country, it is 
required to extend such advantage to like products from all WTO Members at once.  When as here, 
a measure imposes duties on one WTO Member, and leaves duties on other Members unchanged, 
the measure clearly doe s not "immediately" accord to that WTO Member an advantage that products 
originating in other countries enjoy.   
25. Similarly, the term "unconditionally" does not raise any interpretative issues in this 
proceeding.  The additional duties apply without respe ct to any sort of conditions.   
26.  China's additional duties measure went into effect on April 2, 2018.  Thus, China has failed to 
"immediately and unconditionally" extend to certain products from the United States the advantage 
that it is providing to lik e products from other countries.   WT/DS558/R/Add.1  
 
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  II. CHINA'S MEASURE IS INCONSISTENT WITH ITS OBLIGATIONS UNDER 
ARTICLE II OF THE GATT 1994  
27. China's measure is inconsistent with its obligations under Article II:1 of the GATT 1994, which 
requires WTO Members to exempt products of another WTO Member from duties in excess of those 
set forth in their Schedule of Concessions and accord treatment no less favourable than what is 
provided for in that Schedule.  
28. An evaluation of a claim under Article II:1(a) and (b) involves  an identification of (1) the 
treatment to be accorded under the importing Member's Schedule for the products at issue; (2) the 
treatment actually accorded to those products when originating in the territory of a Member; and 
lastly (3) whether the measure results in the imposition of duties on such products that are in excess 
of what is provided for in the importing Member's Schedule.    
29. In other words, if a measure results in the imposition of duties (x) that are in excess of the 
duties provided for in the Schedule (y), the measure breaches the obligations under Article II:1(a) 
and (b) of the GATT 1994.  Additionally, establishing a breach of Article II:1(b) necessarily entails a 
breach of Article II:1(a).  For this reason, the United States turns first  to paragraph (b) in Article II:1 
of the GATT 1994.   
30. Article II:1(b) is divided into two sentences.  Under the first sentence, a WTO Member must 
exempt the products of another WTO Member from any "ordinary customs duties" in excess of those 
set forth in  its Schedule when such products are imported into the territory of the former.  Under the 
second sentence, a WTO Member must exempt those products from all "other duties or charges" of 
any kind that are in excess of those imposed as of certain dates.    
31. The distinction between the first and second sentence concerns whether the duties in question 
constitute "ordinary customs duties" or "other duties or charges."  For purposes of this dispute, it is 
legally immaterial whether the additional duties constitut e "ordinary customs duties" or "other duties 
or charges" because, under either characterization, the duties exceed China's rates bound in its 
schedule.  With respect to the first sentence of Article II:1(b), for 123 tariff lines at issue, China has 
imposed duties in excess of the bound rate commitments found in its Schedule.  
32. Given China's breach of Article II:1(b) through the imposition of the duties in excess of its 
bound rate on products originating in the United States, China has correspondingly accor ded less 
favourable treatment to these products and breached Article II:1(a) as well.   
III. IN THE EVENT CHINA ATTEMPTS TO PRESENT A DEFENSE BASED ON A 
SAFEGUARD THEORY, SUCH A DEFENSE WOULD BE COMPLETELY WITHOUT 
MERIT BECAUSE THE UNITED STATES HAS NOT ADO PTED A SAFEGUARD  
33. The introductory language in China's measure indicates that it may attempt to assert a  defense  
based on some type of theory that its additional duties are justified under the WTO Agreement on 
Safeguards ("the Safeguards Agreement").  In the event that China attempts to present such a 
defense, the United States will respond to China's arguments in su bsequent submissions.  
34. Nonetheless, in this first submission, the United States would emphasize a key, fatal flaw in 
any defense based on the Safeguards Agreement:  namely, no U.S. safeguard is related to the 
matters in this dispute.  For the Safeguard A greement to apply to a Member's measure, the Member 
must invoke the Safeguard Agreement as a justification for suspending GATT 1994 obligations or 
withdrawing or modifying tariff concessions.  The United States has not invoked the Safeguard 
Agreement in con nection with this dispute, and the Safeguard Agreement simply does not apply.   
35. Article XIX of the GATT 1994 and the Safeguards Agreement establish a WTO Member's right 
to implement a safeguard measure, temporarily suspending concessions and other oblig ations, when 
that WTO Member invokes this right with the required notice indicating that it has determined that 
a product is being imported into its territory in such increased quantities and under such conditions 
as to cause serious injury or threat of se rious injury to the WTO Member's domestic industry.   
36. The essential point that a Member must invoke the protections of Article XIX for the safeguard 
provisions to apply is reinforced by the text of the Safeguards Agreement.  The Safeguards WT/DS558/R/Add.1  
 
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  Agreement elab orates on the rights and obligations in Article XIX.  Article 1 of the Safeguards 
Agreement states "[t]his Agreement establishes rules for the application of safeguard measures 
which shall be understood to mean those measures provided for in Article XIX of the GATT 1994."   
37. One of the requirements from Article XIX that the Safeguards Agreement elaborates upon is 
that the right to apply a safeguard measure requires invocation of Article XIX through written notice 
of that invocation to other WTO Members.  If that right is not exercised with the appropriate notice 
invoking this authority, a measure cannot be considered a safeguard under Article XIX and the 
Safeguards Agreement.  Moreover, China cannot exercise the rights of the United States under 
Article  XIX. If the United States did not invoke Article XIX, that is simply the end of the matter.   
38. The Safeguards Agreement expressly defines safeguard measures as those provided for in 
Article XIX of the GATT 1994, which in turn makes clear that an importing Mem ber must invoke the 
right under Article XIX in order to apply a safeguard measure.  Without an invocation of that right, a 
measure does not qualify as a safeguard under the WTO Agreement.   
EXECUTIVE SUMMARY OF THE U.S. OPENING STATEMENT AT THE FIRST SUBSTAN TIVE 
MEETING OF THE PANEL  
I. INVOCATION IS A CONDITION PRECEDENT TO APPLY A SAFEGUARD 
MEASURE UNDER GATT ARTICLE XIX AND THE WTO AGREEMENT ON 
SAFEGUARDS  
39. The first step to determine whether a WTO Member has applied a safeguard measure under 
Article XIX and the Safeguards Agreement is identifying whether the Member in question has invoked 
the right under these provisions.  Absent this invocation, a measure does not and cannot fall under 
the WTO's safeguard disciplines.  The reason for this is simple.  The te xt of the relevant provisions 
establishes this to be the case.   
40. First, Article 1 of the Safeguards Agreement defines a safeguard as "to mean those measures 
provided for in Article XIX of GATT 1994."  Second, Article XIX of the GATT 1994, in relevant part, 
provides:  
If … any product is being imported into the territory of [a] contracting party in such 
increased quantities and under such conditions as to cause or threaten serious injury to 
domestic producers in that territory of like or directl y competitive products, the 
contracting party shall be free , in respect of such product, … to suspend [its] obligation 
in whole or in part or to withdraw or modify [its] concession.  
41. The text makes clear that a Member which finds that increased imports of a product have 
caused or threaten serious injury to domestic producers of that product may, in its discretion , invoke 
the right reserved to it and apply a safeguard measure.  The phrase "shall be free" establishes that 
the decision is up to that Member.  The Appellate Body in Indonesia – Iron and Steel Products 
reasoned similarly that the words "shall be free" in Article XIX "simply accord to a Member the 
'freedom ' to exercise its right to impose a safeguard measure by suspending a GATT obligation or 
withd rawing or modifying a GATT concession if the conditions set out in the first part of 
Article  XIX:1(a) are met."  Accordingly, a Member may elect, as its right, to invoke Article XIX and 
implement a safeguard measure.  Absent a Member's invocation of that rig ht, however, the safeguard 
provision is not relevant, and a measure cannot constitute a safeguard.   
42. A Member's ability to exercise that right, at a minimum, requires invocation with notice to 
other Members under Article XIX:1(b) before the Member can t ake the action to apply a safeguard 
measure.  Without invocation, and without notice of that invocation, a Member has not invoked the 
right under Article XIX and, therefore, is not "free" to suspend any obligation, in whole or in part, or 
withdraw or modify  any concession.  
II. CHINA'S ARGUMENT THAT THE APPLICABILITY OF THE SAFEGUARDS 
AGREEMENT IS AN "OBJECTIVE QUESTION" MISSES THE POINT  
43. China argues that the U.S. position is incorrect because the applicability of the Safeguards 
Agreement must involve an "objective question."  This argument completely misses the point.  The WT/DS558/R/Add.1  
 
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  United States agrees that the applicability of the Safeguards Agreement to a particular matter is an 
"objective question."  The United States disagrees, however, on the specific content of  that objective 
question.  As the United States explained in its first submission, the first step in the analysis is the 
"objective question" of whether a Member has sought to invoke its right under Article XIX to suspend 
its obligations or to withdraw conc essions.  If not, then a safeguard is not involved.  If so, the 
"objective question" will turn to whether the measure at issue meets additional elements required 
for meeting the definition of a safeguard.   
44. Whether or not a Member has invoked the Safeguar ds Agreement is an objective question, 
involving what actually happened in the past.  And here, the United States did not invoke any rights 
under Article XIX.  And, indeed, China presents no factual evidence to the contrary.   
45.  In its written submission, China relies on findings in other disputes.  Those disputes, however, 
are inapplicable; they simply do not address a situation where a Member has never invoked its rights 
to adopt a safeguard under Article XIX.  That no prior reports address the current situ ation is 
completely unsurprising.  To the knowledge of the United States, this is the first time that any 
Member has ever asserted the right to adopt unilateral retaliation simply on the basis that it viewed 
another Member as adopting a safeguard.   
46. Notably, the Appellate Body in the  Indonesia – Iron and Steel Products  dispute cited by China 
was reviewing a situation where both parties to the dispute believed the measure at issue was a 
safeguard and the dispute followed invocation and notification under A rticle XIX and the Safeguards 
Agreement.  The framework in Indonesia – Iron and Steel Products , accordingly, is fully consistent 
with the proposition that invocation and notice under Article XIX are a necessary but not a sufficient 
condition to impose a saf eguard measure.   
47. In fact, the Appellate Body in Indonesia – Iron and Steel Products  adopted a multi -step 
analysis for the existence and application of safeguard measures.  "In carrying out this analysis," the 
Appellate Body mentioned, "it is important t o distinguish between the features that determine 
whether a measure can be properly characterized as a safeguard measure from the conditions that 
must be met in order for the measure to be consistent with the Agreement on Safeguards and the 
GATT 1994.  Put differently, it would be improper to conflate factors pertaining to the legal 
characterization of a measure for purposes of determining the applicability  of the WTO safeguard 
disciplines with the substantive conditions and procedural requirements that dete rmine the 
WTO-consistency  of a safeguard measure."    
48. Under the first step of that analysis, a WTO Member must invoke the right under Article XIX 
for a measure to be a safeguard within the meaning of Article 1 of the Safeguards Agreement.  Of 
course, as in Indonesia – Iron and Steel Products , this is not enough for the measure to be a 
safeguard as it still needs to meet the other requirements before moving onto a determination 
whether the safeguard measure was lawfully applied.  But if the first and crucial step involving 
invocation does not take place, the measure cannot be a safeguard and another WTO Member's 
characterization is immaterial.  
III. CHINA'S APPROACH FAILS UNDER ITS OWN TEST  
49. Significantly, even under the approa ch China urges this Panel to adopt, the relevant factors 
still support the United States' position.  The U.S. security measures were imposed under domestic 
law addressing threats to national security and not Section 201 of the Trade Act of 1974 that the 
United States uses to impose import relief in the form of a safeguard measure.  Moreover, the 
underlying procedures to impose the U.S. security measures involved the U.S. Department of 
Commerce with engagement from the U.S. Department of Defense and not the U. S. International 
Trade Commission, which is the only competent authority in the United States authorized to 
investigate whether a product is being imported in such increased quantities and under such 
conditions as to cause or threaten to cause serious inju ry to a domestic industry that produces like 
or directly competitive products for the purpose of applying a safeguard measure.  
50. Accordingly, were the Panel to evaluate the U.S. security measures under the factors proposed 
by China, it would find that th e United States' characterization of the measure under its domestic 
law is as a national security matter, the procedures did not involve the only competent authority 
that can administer a safeguards investigation, and of course, there was no notification t o the WTO WT/DS558/R/Add.1  
 
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  Committee on Safeguards because the United States, unlike the implementing Member in 
Indonesia  – Iron and Steel Products , did not invoke Article XIX of the GATT 1994.   
IV. CHINA'S ERRONEOUS APPROACH WOULD UNDERMINE THE RULES -BASED 
TRADING SYSTEM  
51. Any measure with dutiable consequences – such as ordinary customs duties, other duties or 
charges, fees or charges for services rendered, antidumping duties, anti -subsidy duties, balance -of-
payments duties, or others – represents a tariff barrier and restricts imports of a product that 
competes with the products of a domestic producer.  The potential effect of a measure is not the 
touchstone to determine what qualifies as a safeguard.  If that were the case, the term would have 
no meaning and  the authority to define what constitutes a safeguard measure would belong to the 
WTO Member seeking to challenge the measure . Or, that WTO Member could simply characterize 
any measure it dislikes as a safeguard and immediately retaliate in a unilateral fa shion without 
having to initiate dispute settlement proceedings.  The extreme position China would countenance, 
and that it asks the Panel to endorse, does not seem compatible with and supportive of a rules -
based trading system.   
EXECUTIVE SUMMARY OF U.S. S ECOND WRITTEN SUBMISSION  
I. THE PLAIN MEANING OF THE TEXT OF GATT 1994 ARTICLE XIX 
ESTABLISHES THAT INVOCATION IS A PRECONDITION TO APPLYING A 
SAFEGUARD MEASURE  
52. The text of GATT 1994 Article XIX, in its context and in the light of the agreement's obje ct 
and purpose, establishes that invocation is a precondition to applying a safeguard measure.   The 
title of Article XIX, "Emergency Action on Imports of Particular Products", does not focus on any 
particular type of measure, nor does it reference any type  of obligation.  Instead, the article sets out 
rules for how a Member may choose to take action that would otherwise be inconsistent with 
obligations under the GATT 1994 affecting imports of particular products.  Further, the term 
"emergency" in the title of  Article XIX implies that safeguard measures are meant to address exigent 
circumstances.  The ordinary meaning of "emergency" is a situation "that arises unexpectedly and 
requires urgent action."   
53. Article XIX:1(a) allows a WTO Member to deviate from its  obligations under the GATT 1994 if 
the conditions set out in that provision are present.  For analytical purposes, Article XIX:1(a) can be 
divided into two parts.  The first part sets out the conditions that, if present, would give a Member 
the right to app ly a safeguard.  Where those conditions are present, the second part establishes the 
right of a Member to apply a safeguard ( i.e., "the contracting party shall be free") and sets out 
requirements for the application of a safeguard.  Accordingly, Article XIX: 1(a) establishes a right – 
the right to suspend obligations or modify or withdraw concessions – in the sense that 
Article  XIX:1(a) permits a Member, when it has invoked this provision and under certain conditions, 
to take action that would otherwise be inc onsistent with its WTO obligations.  
54. Under Article XIX:2, a Member's ability to take action pursuant to Article XIX:1 is conditioned  
on invocation with notice to other Members before that Member can take action.  The first sentence 
of Article XIX:2 prov ides:  
Before any contracting party shall take action pursuant  to the provisions of 
paragraph  1 of this Article, it shall give notice  in writing to the CONTRACTING PARTIES 
as far in advance as may be practicable and shall afford the CONTRACTING PARTIES 
and those contracting parties having a substantial interest as exporters of the product 
concerned an  opportunity to consult with it in respect of the proposed  action.  
(emphasis added)  
55. The ordinary meaning of the terms in the first sentence of Article XIX :2 show that invocation 
is a precondition to applying a safeguard.  The term "before" is defined as "preceding an event."  The 
term "pursuant" means "in accordance with".  And the term "propose" means to "[p]ut  forward or 
present for consideration" or "discussion".  Thus, invocation and notice from the WTO Member 
proposing to take action must precede "action pursuant to" paragraph 1.  Without such notice, a WT/DS558/R/Add.1  
 
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  Member is not seeking legal authority pursuant to Article  XIX to suspend an obligation or to withdraw 
or modify a concession.   
56. Of note, the third sentence of Article XIX:2 provides a limited exception to the consultation 
requirement:   
In critical circumstances , where delay would cause damage which it would b e difficult 
to repair, action under paragraph 1 of this Article may be taken provisionally without 
prior consultation , on the condition that consultation shall be effected immediately 
after taking such action.  
Critically, this exception to act "without pr ior consultation" does  not apply to the requirement in 
Article XIX:2, first sentence, to invoke Article XIX by providing notice to Members in writing.  Thus, 
the requirement to provide notice is unconditional .   
57. The text of Article XIX:3(a) of the GATT  1994 also shows that invocation is a precondition  
to applying a safeguard measure.  Under that provision, if the consultations envisioned by 
Article  XIX:2 fail to address the concerns of affected Members, affected Members can suspend 
substantially equivale nt concessions or other obligations.  These envisioned consultations are 
triggered by the invocation and notice provision under Article XIX:2.  In full, Article XIX:3(a) 
provides:  
If agreement among the interested contracting parties with respect to the acti on is not 
reached, the contracting party which proposes  to take  or continue  the action shall, 
nevertheless, be free to do so, and if such action is taken or continued, the affected 
contracting parties shall then be free, not later than ninety days after su ch action is 
taken, to suspend, upon the expiration of thirty days from the day on which written 
notice  of such suspension is received by the CONTRACTING PARTIES, the application 
to the trade of the contracting party taking such action, or, in the case env isaged in 
paragraph 1(b) of this Article, to the trade of the contracting party requesting such 
action, of such substantially equivalent concessions or other obligations under this 
Agreement the suspension of which the CONTRACTING PARTIES do not disapprove .  
58. Thus, in terms of Article XIX:3(a), without notice  of a proposed action, a Member "which 
proposes to take or continue the action shall [ not] be free to do so."  That is, without invocation , 
a Member cannot take (and has not taken) action pursuant to Article XIX.  
II. THE CONTEXT OF ARTICLE XIX CONFIRMS THAT INVOCATION IS A 
PRECONDITION TO APPLYING A SAFEGUARD MEASURE  
59. The context provided by other provisions of the WTO Agreement confirms that invocation is a 
precondition to applying a safeguard mea sure. A number of rebalancing provisions in the WTO 
Agreement confirm that Article XIX of the GATT 1994 establishes a right that must be invoked  by 
a Member taking action under that provision.  Although the requirements vary, these provisions 
contemplate a Member exercising a right through invocation and contain structural similarities to 
Article XIX.  
60. Specifically, the following provisions of the GATT 1994 contemplate a Member affirmatively 
exercising the right to modify or withdraw a tariff concession o r to suspend an obligation through 
invocation : Article XXVIII, Article XXIV, Article XVIII, Article II, and Article XXVII.  In addition, 
rebalancing provisions in other WTO agreements reflect a similar structure by which a Member may 
invoke  the right to mod ify or withdraw a tariff concession or to suspend an obligation, including: 
Article XXI of the General Agreement on Trade in Services  (GATS), Article 5 of the Agreement on 
Agriculture (Agriculture Agreement), and Article 6 of the Agreement on Textiles and Clothing  
(Textiles Agreement).   
III. THE NEGOTIATING HISTORY OF ARTICLE XIX CONFIRMS THAT 
INVOCATION IS A PRECONDITION TO APPLYING A SAFEGUARD MEASURE  
61. The drafting history of Article XIX of the GATT 1994 dates back to negotiations to establish 
the International Trade Organization of the United Nations (ITO).  In 1946, the United States WT/DS558/R/Add.1  
 
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  proposed a draft charter for the ITO, which included a provision titled "Emergency Action on Imports 
of Particular Products".  
62. As originally drafted, the predecesso r to Article XIX included an invocation requirement.  The 
invocation requirement in Article XIX stems from the provisions on providing notice of a proposed 
action.  During the negotiations on the text of the proposed ITO provision that became Article XIX, 
however, some drafters suggested removing the notice requirement.  Led by the United States, the 
drafters agreed to keep the requirement.   
63. In the course of negotiations, the Chairman suggested that the drafters agree about prior 
notice , but suggested that  to address "exceptional cases" the drafters "have to try to find a formula" 
that "gives the right in very exceptional cases" to "take immediate action" without prior consultation.  
The United States agreed with the Chairman, noting that "the Chairman's sug gestion that there 
might be provision made for quicker action in exceptional cases is sound."   After the drafters 
discussed the compromise, the Chairman wrapped up the discussion on Article 29 by observing that, 
if he saw the remarks of the drafters clearl y, that there "will be prior consultation unless exceptional 
circumstances make it impracticable."  The drafters agreed with pausing the discussion on Article 29 
until a new draft was presented by the rapporteur.  
64. On November 14, 1946, the drafters discu ssed a revised version of Article 29.  At the beginning 
of the discussion on Article 29, the rapporteur observed that:  
It seemed to be agreed that prior or simultaneous notice  should in all cases be given, 
but that with respect to consultation there should be some leeway in critical cases for 
the action to be taken first and the consultation should follow upon it immediately.  It is 
believed that the draft as it originally stood  permitted short notice.  In other words, 
under the original language of the draft it reads  
Before any Member shall take action pursuant to the provisions of 
paragraph 1 of this Article, it shall give notice in writing to the 
Organisation as far in advan ce as may be practicable.  
It seems to me that would permit of short notice; it could a[l]most be simultaneous.  
Therefore, I did not think that any change was needed in that.  
65. Regarding prior consultation, the rapporteur noted that new text had been add ed to Article 29 
that would allow action without prior consultation in exceptional circumstances.   
66. On November 20, 1946, the drafters issued a report that included a revised Article 29 that 
retained the prior notice requirement.  This version of Article  29 was included in the London Report 
and it became Article 34 in the draft Charter of the ITO.  While the drafters made further revisions 
to Article 34 during the discussions in New York, Geneva, and Havana, the prior notice requirement 
was kept by the dra fters and found its way to the current Article XIX of the GATT 1994.   
67. As the foregoing demonstrates, the drafters of the provision that became Article XIX of the 
GATT 1994 made the intentional decision to keep the notice requirement.  Accordingly, the d rafting 
history of Article XIX of the GATT confirms that invocation is a precondition to applying a safeguard 
measure.   
IV. THE TEXT OF THE SAFEGUARDS AGREEMENT ESTABLISHES THAT 
INVOCATION IS A PRECONDITION TO APPLYING A SAFEGUARD MEASURE  
68. The text of t he Safeguards Agreement further confirms that invocation is a precondition to 
apply a safeguard measure.  The Safeguards Agreement sets out detailed requirements for a Member 
to follow regarding its application of a safeguard.  Three articles of the Safeguar ds Agreement 
highlight that invocation of Article XIX is the critical precondition for a Member to exercise its right 
when departing from its obligations and commitments to prevent or remedy serious injury to a 
relevant domestic industry.   WT/DS558/R/Add.1  
 
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  69. First, the G eneral Provision in Article 1 reaffirms that the Safeguards Agreement only applies 
to measures that invoke Article XIX.  In full, Article 1 of the Safeguards Agreement provides:  
This Agreement establishes rules for the application of safeguard measures whic h shall 
be understood to mean those measures provided  for in Article XIX  of GATT 1994.  
70. An integral feature of the right in Article XIX, as explained above, is the requirement of 
invocation as a precondition to taking action pursuant to Article XIX.  The rules in the Safeguards 
Agreement identify certain requirements that a Member must satisfy after deciding to take or seek 
a safeguard measure.  This includes, as discussed below, a Member's obligation to notify other 
Members of its decision to institute an  investigation under its domestic safeguards authority, to 
notify other Members after finding serious injury to a domestic industry based on such an 
investigation, and to notify other Members after the decision to apply a safeguard measure.   
71. Second, Ar ticle 12 of the Safeguards Agreement reinforces the requirement of invocation as 
a precondition to action under Article XIX.  Article 12.1 of the Safeguards Agreement contains 
requirements concerning notifications and consultation, and provides that there a re three milestones 
over the course of a safeguards investigation that a Member must notify to the Committee on 
Safeguards.  A Member must provide a notification when: (a) initiating a safeguards investigation 
under its domestic authority, (b) making a find ing that increased imports are causing or threatening 
serious injury to a domestic industry, or (c) deciding to impose a safeguard measure based on an 
investigation that results in a finding of serious injury.   
72. In addition, Article 12.6 requires that M embers "notify promptly the Committee on Safeguards 
of their laws, regulations and administrative procedures relating to safeguard measures  
as well as any modifications made to them."  In other words, it is clear that a Member has invoked 
Article XIX to app ly or extend a safeguard measure and followed the procedural requirements in the 
Safeguards Agreement when  it notifies a decision according to Article 12.1(c) and it has taken that 
decision under a provision of the safeguards laws, regulations, and adminis trative proceedings it 
previously notified under Article 12.6.  Consistent with this, other Members understand when a 
safeguard measure has been imposed because the implementing Member will provide notice of the 
measure taken under "laws, regulations and ad ministrative procedures" it already notified as its 
domestic authority to apply a safeguard measure.     
73. The ability of other Members to take action under Article 8.2 of the Safeguards Agreement is 
dependent on an implementing Member actually invoking A rticle XIX.  The rules regarding notification 
of that invocation, as established above, appear in Article 12 of the Safeguards Agreement.  Since 
invocation involves the right under Article XIX that existed prior to the adoption of the Safeguards 
Agreement, the latter does not transform the nature of that right but establishes the steps a Member 
must take to exercise those rights.   
74. In this dispute, the United States has not applied a safeguard measure because it has not 
invoked Article XIX of t he GATT 1994.  The absence of any invocation is clear because the United 
States has not sent a notification to the Committee on Safeguards or taken any action under a 
domestic authority that it previously notified under Article 12.6.  Consequently, the actio ns that would 
inform other Members of a decision to invoke  Article XIX (notification of a decision to apply a 
safeguard measure and  adoption of the measure under domestic authority that has been notified 
under Article 12.6) are absent from this dispute.  Accordingly, since there has been no invocation, 
China's failure to identify where and how the United States has taken a measure "provided for in" 
Article XIX means that it cannot rely on Article 8.2 of the Safeguards Agreement to justify its 
retaliation aga inst the United States.  
75. Third, Article 11 of the Safeguards Agreement reinforces the requirement of invocation as a 
precondition to action under Article XIX.  
V. THE NEGOTIATING HISTORY OF THE SAFEGUARDS AGREEMENT CONFIRMS 
THAT INVOCATION IS A PRECOND ITION TO APPLYING A SAFEGUARD 
MEASURE  
76. The negotiating history of the Safeguards Agreement has its origins in the Tokyo Round 
negotiations and a perceived need to clarify and strengthen the provisions of Article XIX of the WT/DS558/R/Add.1  
 
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  GATT  1994.  For example, certai n GATT contracting parties "affected by Article XIX measures wanted 
its provisions to be clarified and re -inforced."  They stressed the "need for more precise criteria 
for invocation of the safeguard clause" . The Tokyo Declaration, adopted in September 1973 , 
stated that negotiations should examine "the adequacy of the multilateral safeguard system, 
considering particularly the modalities of application of Article XIX, with a view to furthering trade 
liberalization and preserving its results."   
77. At the end  of the Tokyo Round in April 1979, the negotiations reached an impasse over certain 
issues and no new text was agreed to.  Following the Tokyo Round, on November 29, 1982, the 
contracting parties issued a Ministerial Declaration concerning the "need for an improved and more 
efficient safeguard system which provides for greater predictability and clarity and also greater 
security and equity for both importing and exporting countries."  Among the issues highlighted for 
consideration were "transparency," "covera ge," "compensation and retaliation," and "notification."   
78. On September 25, 1986, the contracting parties issued the Ministerial Declaration of Punta del 
Este, Uruguay, thus beginning the Uruguay Round negotiations.  Safeguard disciplines were again a 
topic identified for discussion.  Following the principles identified in the Ministerial Declaration 
referenced above, the GATT Council of Ministers attempted to overcome the previous impasse 
regarding the negotiations of safeguard disciplines.  In his report regarding developments in this 
context, the Chairman of the Council noted "a general recognition that safeguard actions should 
only be taken if the criteria laid down in Article XIX were met ."   
79. The major issues confronted during the renewed negotiatio ns ultimately resulted in key 
provisions of the Safeguards Agreement.  This includes Article 1 (for the understanding that the rules 
to implement a safeguard measure only apply to measures provided for  in Article XIX), Article 12 
(with respect to the notifi cation requirements), and Article 11 (confirming that the Safeguards 
Agreement does not apply to a measure sought, taken, or maintained under provision other than  
Article XIX).   
80. Accordingly, the negotiating history confirms the plain meaning reflected in the text that the 
rules in the Safeguards Agreement only apply to measures taken pursuant to Article XIX, that 
invocation is the touchstone for whether a Member has taken a measure pursuant to Article XIX, 
and that notification is the procedural mechani sm to alert other Members of that invocation.   
VI. THE U.S. SECTION 232 MEASURES CITED BY CHINA DO NOT FALL WITHIN 
THE SCOPE OF THE SAFEGUARDS AGREEMENT  
81. China's suggestion that the U.S. security measures under Section 232 of the Trade Expansion 
Act of 1962 (Section 232) are safeguards cannot justify China's retaliatory tariffs, and does not 
assist the Panel's objective assessment of the matter, because United States has not invoked 
Article  XIX. This is clear since the United States has not provided the notification under 
Article  12.1(c) of the Safeguards Agreement that identifies a measure taken pursuant to a domestic 
authority already notified to the Committee on Safeguards under Article 12.6 of the Safeguards 
Agreement.  As the United S tates has explained throughout this dispute, for a measure to fall under 
the WTO's safeguards disciplines the importing Member must invoke Article XIX.    
82. The United States recalls that the Safeguards Agreement only applies to measures taken 
pursuant to  Article XIX of the GATT, as confirmed in Article 11.1(c) of the Safeguards Agreement.  
Under that provision, only measures sought, taken, or maintained pursuant to Article XIX fall within 
the scope of the Safeguards Agreement.  Here, the Section 232 measure s cited by China were sought, 
taken or maintained under Article XXI of the GATT 1994 – which is a provision "other than 
Article  XIX"; accordingly, by the plain text of the Safeguards Agreement, the Section 232 measures 
cited by China simply do not fall wit hin the scope of the Safeguards Agreement.  
VII. THE SAFEGUARDS AGREEMENT ONLY APPLIES TO MEASURES TAKEN 
PURSUANT TO ARTICLE XIX OF THE GATT 1994  
83. In relevant part, Article 11.1(c) of the Agreement on Safeguards provides that the Agreement 
on Safeguards "does not apply to measures sought, taken or maintained by a Member pursuant to 
provisions of GATT 1994 other than  Article XIX."  WT/DS558/R/Add.1  
 
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  84. The words "sough t, taken or maintained" modify the word "measures" in Article 11.1(c).  
"Sought" is the past tense and past participle of the verb "seek," which can be defined as "[t]ry or 
attempt to do."  "Taken" is the past participle of the verb "take," which can be defi ned as "[h]ave an 
intended result; succeed, be effective, take effect."  "Maintained" is the past tense and past participle 
of the verb "maintain," which can be defined as "[c]ause to continue (a state of affairs, a condition, 
an activity, etc.)."  Definitio ns of the word "pursuant" – used as an adverb in Article  11.1(c) – include 
"[w]ith to: in consequence of, in accordance with."   
85. With these definitions in mind, the ordinary meaning of the terms in Article 11.1(c) can be 
understood as "measures [that a Member has] tried to do, succeeded in doing or caused to continue 
in accordance with provisions of the GATT 1994 other than Article XIX."  The ordinary meaning of 
these terms establishes that Article 11.1(c) is triggered – and the Agreement on Safeguards "d oes 
not apply" – when a Member acts (by seeking, taking or maintaining a measure) pursuant to a 
provision of the GATT 1994 other than Article XIX.  
86. With these terms, Article 11.1(c) places the emphasis on whether a measure was sought, 
taken, or maintain ed under a GATT 1994 provision other than Article XIX.  Here, the United States 
has expressly invoked a provision of GATT 1994 other than  Article XIX – namely, Article XXI.  This 
is clear from U.S. statements, including those during meetings of the WTO Counc il for Trade in 
Goods, that the United States took the action for the protection of its essential security interests 
pursuant to Article XXI.    
87. With this understanding in mind, it is clear that, under Article 11.1(c), the Agreement on 
Safeguards "does not apply" when a Member has attempted or tried to take a measure in accordance 
with provisions of the GATT 1994 other than Article XIX, or when the Member has succeeded in 
taking such a measure or caused such a measure to continue.  Here, the United States  has attempted 
to take – and succeeded in taking – the Section 232 security measures in accordance with Article  XXI 
of the GATT 1994.  Accordingly, under the text of Article 11.1(c), the Agreement on Safeguards "does 
not apply" here.  
VIII.  CHINA HAS NO BAS IS FOR ASSERTING THAT ITS ADDITIONAL DUTIES ARE 
AUTHORIZED BY ARTICLE 8.2 OF THE SAFEGUARDS AGREEMENT  
88. The central question in this dispute is whether China has any justification for breaching 
Articles  I and II of the GATT 1994.  China attempts to charac terize its additional duties as 
"rebalancing measures" authorized by Article 8.2 of the Safeguards Agreement.  This justification 
lacks merit because such rebalancing measures require the existence of an underlying safeguard 
measure; here, there is no relev ant U.S. safeguard measure.  Accordingly, the rights and obligations 
under Article XIX of the GATT 1994 and the Safeguards Agreement are not applicable in this 
proceeding.   
89. As detailed below, China's characterization of its additional duties as rebalanc ing measures is 
flawed in several respects.  First, China derives its legal theory not from the text of the WTO 
Agreement but from an Appellate Body report that is not applicable in this dispute and, in any event, 
does not contain a comprehensive definition  of a safeguard measure.  Even under China's suggested 
approach to Article 8.2 of the Safeguards Agreement, an application of the Appellate Body's 
reasoning would confirm that there is no relevant U.S. safeguard measure.  With respect to China's 
argument tha t a Member may implement rebalancing measures in cases of doubt as to the existence 
of a safeguard measure, this suggestion is plainly contrary to the text of Article XIX of the GATT 
1994 and the Safeguards Agreement.  Finally, China is mistaken that the ti me limits in Article 8.2 of 
the Safeguards Agreement support its argument for unilateral rebalancing measures.  For these 
reasons, China's justification for its breach of Articles I and II of the GATT 1994 must be rejected.  
90. China does not ground its ju stification on the relevant text of the WTO Agreement.  Instead, 
China derives its legal theory from the Appellate Body report in Indonesia – Iron or Steel Products . 
As an initial matter, Indonesia – Iron or Steel Products  is simply not applicable because i t did not 
address a situation where a Member has not invoked Article XIX of the GATT 1994.  In that dispute, 
the disputing parties agreed that the Indonesian measure at issue met what, in most circumstances, 
is the fundamental criterion for establishing the existence of a safeguard measure:  namely, that the 
Member adopting a measure invokes Article XIX of the GATT 1994 as the basis for suspending an 
obligation or withdrawing or modifying a concession.  In Indonesia – Iron or Steel Products,  Indonesia WT/DS558/R/Add.1  
 
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  did notify  other Members that it intended to adopt a safeguard measure, and thus did invoke 
Article  XIX of the GATT 1994.  Here, the United States did not invoke Article XIX of the GATT  1994.  
Thus, the Appellate Body's reasoning in that dispute is n ot relevant in this dispute.   
91. Moreover, China is mistaken that the Appellate Body in Indonesia – Iron or Steel Products 
established an all -encompassing definition of a safeguard measure.  As Japan correctly states in its 
third-party submission, the Appe llate Body "did not attempt to propose a comprehensive definition 
of a safeguard measure or ultimately to decide the scope of the Agreement on Safeguards."  Rather, 
the Appellate Body noted that "to constitute one of the 'measures provided for in Article XI X', a 
measure must present certain constituent features, absent which  it could not be considered a 
safeguard measure."   In other words, the Appellate Body's reasoning only identifies certain 
"necessary" features.  Importantly, the Appellate Body did not say that a measure presenting both 
(to use the terms used by the Appellate Body) "constituent features" automatically or necessarily 
qualifies as a safeguard measure.  Instead, the Appellate Body made explicit that "whether a 
particular measure constitutes a s afeguard measure for purposes of WTO law can be determined 
only on a case -by-case basis."    
92. Furthermore, even under China's suggested approach, there is no U.S. safeguard measure.  
As discussed, China derives its legal theory from the Appellate Body's r easoning in Indonesia – Iron 
or Steel Products . In that dispute, the Appellate Body identified three factors it considered relevant 
for a panel to assess, among other relevant factors, in determining the existence of a safeguard 
measure.  
93. Regarding the first factor (domestic law), safeguard measures in the United States are 
authorized by Section 201 of the Trade Act of 1974.  In contrast, under U.S. domestic law, the U.S. 
national security measures are authorized by Section 232 of the Trade Expansion Act of 1962.  
Section 232 authorizes the President of the United States, upon receiving a report from the U.S. 
Secretary of Commerce finding that an "article is being imported into the United States in such 
quantities or under such circumstances as to threaten to impair the national security ," to take 
action that "in the judgment of the President" will "adjust the imports of the article and its derivatives 
so that such imports will not threaten to impair the national security ." 
94. Regarding the second factor (d omestic procedures), the U.S. International Trade Commission 
is the only competent authority in the United States authorized to conduct safeguard investigations.  
In contrast, the Bureau of Industry and Security of the U.S. Department of Commerce conducted 
the investigation regarding the U.S. national security measures.    
95. Finally, the application of the third factor (notification to the WTO Committee on Safeguards), 
further supports the U.S. position.  The United States has not notified the WTO Committee on 
Safeguards of any proposed action or any safeguard measure taken because the United States did 
not invoke Article XIX of the GATT 1994.  Since the creation of the WTO, however, the United States 
has met its obligations under Article 12 of the Safeguards Agreement.  
96. Accordingly, were the Panel to assess the U.S. security measures under the Appellate Body's 
reasoning as suggested by China, the Panel would conclude that the U.S. security measures do not 
qualify as safeguard measures under Article XIX of the GATT 1994.  
EXECUTIVE SUMMARY OF THE U.S. OPENING STATEMENT AT THE PANEL'S 
VIDEOCONFERENCE WITH THE PARTIES  
97. The United States initiated this dispute in response to China's measure that imposes additional 
duties on and discriminates against goods originating in the United States, in violation of its 
obligations in Articles I and II of the GATT 1994.  By and large, China does not contest the factual 
basis of the U.S. claims.  Nor does China raise legal arguments to defend its measure in terms of  the 
failure to accord MFN treatment and the imposition of duties in excess of the bound rate in China's 
Schedule.  
98. Instead, China attempts to justify its measure under Article 8.2 of the Safeguards Agreement.  
The key question, therefore, is whether WTO  safeguards disciplines – provided in Article XIX of the 
GATT 1994 and the Safeguards Agreement – apply.  As the United States has explained over the WT/DS558/R/Add.1  
 
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  course of these proceedings, the rights and obligations under the safeguards disciplines are not 
applicable  here.  
99. At the outset, the United States would like to emphasize a key point regarding terminology.  
The United States has framed the issue in this dispute as whether, as China contends, the safeguards 
disciplines apply to the U.S. essential security me asures.  In contrast, China frames the issue as 
whether the U.S. essential security measures are, in fact, "safeguard measures."  However, China's 
framing easily slides into an erroneous mode of analysis.  In particular, China's approach implies that 
one can look at aspects of an adopted measure, and –without any consideration of how that measure 
fits into Article XIX's specific language – determine whether the measure is subject to Article XIX.  
This proposition is incorrect.   
100. In fact, Article XIX of the GATT 1994 does not define the term "safeguard measure."  Instead, 
Article 1 of the Safeguards Agreement defines "safeguard measures" as "those measures provided 
for in Article XIX of GATT 1994."  And what exactly does Article XIX "provide for"?  Article XIX p rovides 
for an "emergency action " that a Member is "free" to take after meeting the conditions in 
Article  XIX:2.  In particular, Article XIX:2 provides that, before taking an action under Article XIX:1, 
a Member "shall give notice in writing" and "shall aff ord…an opportunity to consult with it in respect 
of the proposed action ." Article XIX is therefore concerned with action, and the consequences and 
procedures surrounding that action, rather than on a particular type of measure.   
101. Indeed, the action per mitted under the emergency procedures in Article XIX is framed with 
extraordinary breadth: the suspension of concessions or other obligations.  In other words, any 
measure that would otherwise breach any obligation under the GATT 1994 could be subject to 
Article XIX, as long as the Member that proposes to adopt the measure seeks to exercise its right 
under Article XIX.  Thus, the text of the WTO Agreement is clear: there is no special type of measure 
that, without considering the specific wording of Article X IX, can somehow be defined as a "safeguard 
measure."  
102.  Moreover, another WTO Member cannot assert that Article XIX should have been invoked 
and, on that basis, adopt a measure that is plainly inconsistent with fundamental WTO obligations.  
But that is exactly the approach China asks the Panel to adopt.   
103. In other words, China believes that certain U.S. national security measures are inconsistent 
with U.S. obligations under the WTO Agreement notwithstanding that those measures were taken 
pursuant to Article XXI of the GATT 1994.  China is challenging those U.S. measures in a separate 
dispute.  However, instead of following the WTO's dispute settlement procedures, China decided to 
impose additional duties on U.S. products that are plainly inc onsistent with its obligations under 
Articles I and II of the GATT 1994.   
104. Besides lacking any support in the text of the WTO Agreement, China's position is 
fundamentally at odds with the basic element of the WTO Agreement that a Member is to utilize t he 
WTO's dispute settlement procedures if a Member believes that another Member's measure is 
inconsistent with WTO rules.  
I. CHINA'S ADDITIONAL DUTIES MEASURE IS INCONSISTENT WITH ITS 
OBLIGATIONS UNDER ARTICLES I AND II OF THE GATT 1994  
105. The United Sta tes has established the facts and demonstrated that China's measure is plainly 
inconsistent with the fundamental WTO obligations to provide MFN treatment, and to abide by the 
tariff concessions in a Member's Schedule, as set out respectively in Articles I and II of the 
GATT  1994.    
106. China has failed to rebut the U.S. prima facie  case by challenging the factual or legal basis of 
the U.S. claims.  With respect to the U.S. claim under Article I, China does not dispute that its 
measure imposes additional dut ies only on U.S. -origin goods for all 128 lines.  Then, regarding the 
U.S. claim under Article II, China does not contest that its measure results in duties in excess of its 
bound rates for 123 of 128 tariff lines.    
107. Further, China has not raised any i nterpretive arguments regarding the U.S. claims under 
Articles I and II.  Instead, China relies entirely on its flawed theory under Article 8.2 of the Safeguards WT/DS558/R/Add.1  
 
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  Agreement to defend its additional duties measure.  This defense  itself implies that the measure in 
question prima facie  breaches China's obligations under Articles I and II, as China appears to 
acknowledge.   
II. THE FUNDAMENTAL LEGAL ISSUE REGARDING CHINA'S ALLEGED 
JUSTIFICATION FOR ITS ADDITIONAL DUTIES MEASURE IS WH ETHER THE 
SAFEGUARDS AGREEMENT APPLIES  
108. China asserts that it has implemented the measure at issue under Article 8 of the Safeguards 
Agreement.  Because China has presented this argument, it bears the burden to establish it.  China 
has failed to meet thi s burden because the Safeguards Agreement does not apply.  
A. China has no basis for trying to avoid its burden of proof to establish that the 
Safeguard Agreement applies.  
109. China continues to assert that the United States somehow carries a burden with  respect to a 
provision it has not raised.  The key point on burden of proof is that China has raised safeguards 
disciplines to rebut the U.S. prima facie  case of a breach of the GATT 1994.  Therefore, China must 
establish that (1) the safeguards disciplines  are applicable and that (2) its challenged measure is 
justified under the safeguards disciplines.  The U.S. panel request does not assert a breach of any 
WTO provision on safeguards.  It is China – not the United States – that is arguing that the safeguards  
disciplines are applicable, and therefore it is China's burden to establish the truth of this assertion.     
B. The safeguards disciplines apply where a Member seeks to invoke its rights under 
Article XIX of the GATT 1994.  
110. China's attempt to justify its additional duties as a measure taken under Article 8.2 of the 
Safeguards Agreement and Article XIX:3(a) of the GATT 1994 is baseless.  As the United States has 
explained in prior submissions, Article XIX of the GATT 1994 establishes a Member's right (bu t not 
obligation) under certain conditions to deviate from its WTO obligations and take an emergency 
action.  A key condition precedent to the exercise of that right is that the Member has invoked 
Article  XIX as the legal basis for its measure by providing notice in writing and affording affected 
Members an opportunity to consult.  This invocation requirement is established by the ordinary 
meaning of each paragraph of Article XIX, the context provided by numerous other WTO provisions, 
and the object and purpo se of the GATT 1994 to provide "reciprocal and mutually advantageous" 
arrangements directed to the "substantial reduction" of tariffs.  This requirement is confirmed by the 
negotiating history of Article XIX and the Safeguards Agreement.  Thus, without invoc ation, a 
Member cannot and has not taken action pursuant to Article XIX and the safeguards disciplines do 
not apply.  
111. Article XIX:1 provides that if certain conditions are met, a Member "shall be free" "to suspend 
an obligation or to withdraw or modif y a concession."  Thus, when a Member believes that the 
conditions in Article XIX:1(a) are met, the Member has the discretion to invoke the right reserved 
to it under Article XIX.  Under Article XIX:2, a Member's ability to take action pursuant to Article  XIX:1 
is conditioned on invocation through notice to other Members of a proposed action under Article XIX.  
Without such notice, a Member is not seeking legal authority pursuant to Article XIX to suspend an 
obligation or to withdraw or modify a concession and  may not take the proposed action "in 
accordance with" that provision.   
112. The third sentence of Article XIX:2 also supports the interpretation that invocation is a 
condition precedent for action under Article XIX.  The third sentence of Article XIX:2 pro vides a 
limited exception  to the consultation requirement.  Notably, this exception does not permit Members 
to take action without providing "notice."  This exception to the consultation requirement – but not 
the notice requirement – establishes that Article  XIX requires a Member to invoke through notice its 
right to take a safeguard action as a condition precedent to action under that provision.  
113. The terms of Article XIX:3 of the GATT 1994 also show that invocation is a precondition for a 
Member's exerci se of its right to take action under Article XIX and to the application of safeguards 
rules to that action.  Under this provision, if the consultations envisioned by Article XIX:2 fail to 
address the concerns of affected Members, affected Members can suspen d substantially equivalent 
concessions or other obligations.  These envisioned consultations are triggered by the invocation and WT/DS558/R/Add.1  
 
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  notice provision under Article XIX:2, underscoring that invocation through notice is a condition 
precedent to action under Artic le XIX.   
114. Numerous provisions of the GATT 1994 and other WTO covered agreements contemplate a 
Member affirmatively exercising the right to modify or withdraw a tariff concession or to suspend an 
obligation through invocation.  In addition, rebalancing p rovisions in other WTO agreements reflect 
a similar structure by which a Member may invoke the right to modify or withdraw a tariff concession 
or to suspend an obligation.  These provisions of the GATT 1994 and other WTO agreements are 
important context for  interpreting Article XIX.  
115. The Safeguards Agreement, which provides context for Article XIX of the GATT 1994, also 
supports that invocation of Article XIX through written notice is a condition precedent to a Member's 
exercise of its right to take act ion under Article XIX.  Both Article 1 and Article  11.1(a) refer to 
Article  XIX in its entirety in describing, respectively, the scope of application for the rules established 
in the Safeguards Agreement and when a Member may take or seek any emergency action on 
imports of particular products as set forth in Article XIX of the GATT 1994.  By referring to Article  XIX 
in its entirety – including the requirement of invocation through notice set forth at Article XIX:2 – 
Article  1 and Article 11.1(a)  of the Safeguards Agreement support that invocation through written 
notice is a condition precedent to a Member's exercise of its right to take action under Article XIX 
and the application of safeguards rules to that action.   
116. Article 11.1(c) of the S afeguards Agreement also supports that invocation of Article XIX is a 
necessary precondition to a Member's exercise of its right to take action under Article XIX and the 
application of safeguards rules to that action.  This provision states in relevant part  that the 
Safeguards Agreement "does not apply to measures sought, taken or maintained by a Member 
pursuant to provisions of GATT 1994 other than Article XIX."  This provision is context which confirms 
that the Member adopting a measure decides what type of  mechanisms for otherwise 
GATT -inconsistent measures are applicable.   
117. China points to "[t]he relationship between Article XIX:2 of GATT 1994 and Article 12 of the 
Safeguard[s] Agreement" as undermining the U.S. position that the requirement to give no tice in 
Article XIX is different from the notification requirements in Article 12.  China misperceives the 
relationship between Article 12 and Article XIX.  In contrast to Article XIX's requirement for 
invocation, Article 12 identifies certain notification r equirements that apply once Article XIX has been 
invoked.  Article 12 sets forth procedural requirements to expand the scope of information a Member 
provides to other Members after it has made the decision to invoke WTO safeguards provisions.   
118. China al so argues that the counter -notification provision in Article 12.8 of the Safeguards 
Agreement "directly contradicts" the U.S. interpretation that invocation is a condition precedent for 
taking an action under Article XIX.  Article 12.8 states "[a]ny Member may notify the Committee on 
Safeguards of all laws, regulations, administrative procedures and any measures or actions dealt 
with in this Agreement  that have not been notified by other Members that are required by this 
Agreement to make such notifications. " As the words "dealt with in this Agreement" and "required 
by this Agreement to make such notifications" make clear, this provision relates only to notifications 
that Members are required to make by the Safeguards Agreement.  And to recall, the Safeguards 
Agreement applies to "safeguard measures", defined as those measures provided for in Article XIX.  
Nothing in the text of Article 12.8 indicates that a Member may invoke another Member's Article XIX 
rights through a counter -notification.    
C. Here, the Unit ed States did not invoke Article XIX and therefore the Safeguards 
Agreement does not apply.  
119. Here, the record objectively establishes that the United States has not invoked Article XIX.  
Further, the United States has invoked a WTO right to take a measure, namely under Article XXI, a 
completely different provision of the GATT 1994.  China does not dispute these key facts.  
Nonetheless, China claims that safeguards disciplines are applicable, arguing that safeguards 
disciplines apply when a measure has  the "constituent features" identified in the Appellate Body 
report in Indonesia – Iron or Steel Products . China continues to fail to recognize the unusual 
circumstance addressed by that report and that the report did not purport to identify all of the 
conditions precedent for application of the safeguards disciplines.  Thus, the reasoning in that report 
is not applicable to the issue in this dispute.  WT/DS558/R/Add.1  
 
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  D. China's approach cannot be sustained in light of the relevant context of the GATT 
1994 and the DSU.  
120. China's approach also cannot be sustained under an interpretation in light of the relevant 
context of the GATT 1994 and the DSU.  Pursuant to DSU Articles 11 and 3.2, panels are to interpret 
and apply relevant provisions of WTO covered agreements in accord ance with the customary rules 
of interpretation of public international law.  Those rules are reflected in Articles 31 to 33 of the 
Vienna Convention on the Law of Treaties  (Vienna Convention).  Article 31(1) provides that a treaty 
shall be interpreted in ac cordance with the ordinary meaning of the terms of the treaty in their 
context and in light of the treaty's object and purpose.  
121. Thus, other provisions of the GATT 1994 are important context for interpreting Article XIX of 
the GATT 1994.  Article XXIII of the GATT 1994 establishes procedures for a Member seeking to 
address, among other things, perceived violations of the GATT 1994.  Accordingly, if a Member 
believes that another Member's measure is inconsistent with an obligation in the GATT 1994, 
Article  XXIII of the GATT 1994 makes clear that the method to address such a concern is through 
recourse to the procedures in Article XXIII.   
122. Further, as the WTO Agreement is a single undertaking, the DSU is relevant context for 
interpreting the terms of GAT T 1994 Article XIX and the Safeguards Agreement within the meaning 
of Vienna Convention Article 31.  In particular, the DSU establishes detailed procedures for a Member 
seeking to address perceived violations of obligations in the WTO covered agreements.  
123. Here, China's approach directly conflicts with DSU Article 23 (Strengthening of the Multilateral 
System).  If a Member believes that another Member's measure is inconsistent with a WTO obligation, 
DSU Article 23 makes clear that the method to address suc h a concern is through recourse to the 
procedures of the DSU.  
124. China's approach – that a Member can deem another Member's measure a safeguard measure 
and, on that basis, adopt retaliatory measures – is plainly contrary to the text of Article XIX and th e 
Safeguards Agreement considered in light of the relevant context of GATT 1994 Article XXIII and 
DSU Article 23.   
E. Under China's approach, any measure that breaches a Member's GATT obligations 
can be construed as a safeguard measure and give rise to a " right" to "rebalancing" 
for another Member.  Such an argument risks undermining the legitimacy of the 
WTO and its dispute settlement system.  
125.  China's proposed approach risks undermining the legitimacy of the WTO and its dispute 
settlement system.  To recall, China argues that it has the right to take retaliatory measures because 
certain U.S. Section 232 measures allegedly "suspend a GATT obligation or withdraw or modify a 
GATT concession."  China adds an argument that the U.S. Section 232 measures presen t the second 
"constituent feature" because, in its view, the Section 232 measures are "'designed to prevent or 
remedy serious injury' to the U.S. steel and aluminum industries."  This second alleged feature, 
however, provides no meaningful limitation on Chi na's position on a unilateral right to retaliate for 
an alleged breach of the GATT 1994.  Almost any trade -related measure will have some effects with 
respect to domestic industries.  And, it is China itself that is attributing such a "design" to the U.S. 
measures.  
126. As the United States has explained, if a Member does not invoke Article XIX, the Member has 
decided not to act upon the right to seek permission under Article XIX.  Accordingly, if a Member 
imposed duties on a non -MFN basis or in excess of its tariff bindings and did not invoke Article XIX, 
then the Member would be in breach of its GATT obligations, and other Members could seek to 
impose countermeasures following recourse  to multilateral dispute settlement rules.  That is how the 
system is designed to work, as evident from the DSU.   
127. In fact, China has brought a separate dispute challenging the U.S. Section 232 measures in 
the WTO.  However, rather than waiting for a dec ision in that dispute, China unilaterally decided that 
the United States is taking action under Article XIX, unilaterally decided that the U.S. measures are 
inconsistent with the safeguards disciplines, and unilaterally retaliated against those measures.   WT/DS558/R/Add.1  
 
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  128. Under China's proposed approach, any Member could determine, for itself, that almost any 
measure was an action taken under Article XIX, and adopt retaliatory measures as so -called 
"rebalancing" measures.    
III. EVEN IF THE SAFEGUARDS AGREEMENT WAS APP LICABLE, CHINA HAS NO 
BASIS FOR ASSERTING THAT ITS ADDITIONAL DUTIES MEASURE IS 
AUTHORIZED BY ARTICLE 8.2 OF THE SAFEGUARDS AGREEMENT BECAUSE 
THE UNITED STATES HAS NOT ADOPTED A "SAFEGUARD MEASURE"  
129. As the United States has just explained, the Safeguar ds Agreement does not apply because 
the United States has not invoked its right to apply a safeguard.  However, even if the Panel were to 
apply safeguards disciplines, China's justification would fail. Contrary to China's claim, a measure 
taken pursuant to Article XXI cannot fall within the scope of the Safeguards Agreement, and this 
interpretation is clearly supported by the text of the Safeguards Agreement.    
130. The United States recalls that the Safeguards Agreement only applies to measures taken 
pursua nt to Article XIX of the GATT, as confirmed in Article 11.1(c).  In relevant part, Article 11.1(c) 
of the Safeguards Agreement provides that the Safeguards Agreement "does not apply to measures 
sought, taken or maintained by a Member pursuant to provisions of GATT 1994 other than 
Article  XIX."   
131. The ordinary meaning establishes that Article 11.1(c) is triggered – and the Safeguards 
Agreement "does not apply" – when a Member acts (by seeking, taking, or maintaining a measure) 
pursuant to a provision of t he GATT 1994 other than Article XIX.  The U.S. Section 232 measures 
cited by China were sought, taken or maintained pursuant to Article XXI of the GATT 1994 – which 
is a provision "other than Article XIX"; accordingly, by the plain text of the Safeguards Ag reement, 
the Section 232 measures cited by China simply do not fall within the scope of the Safeguards 
Agreement.  Therefore, no "right" of "rebalancing" can arise for another Member, including China.     
132. Therefore, the exercise of the right – through i nvocation – to take action under Article XIX is 
a precondition not only for a measure to constitute a safeguard but for another Member to implement 
a rebalancing measure under Article 8.2.  Because the United States has not sought to exercise a 
right to exc eed its tariff bindings through GATT 1994 Article XIX, no consequent "right to 
rebalancing" can arise for another Member.  
EXECUTIVE SUMMARY OF THE U.S. CLOSING STATEMENT AT THE PANEL'S 
VIDEOCONFERENCE WITH THE PARTIES  
133. The United States will close by e laborating on three key issues.  First, as the United States has 
explained, the U.S. interpretation that invocation is a condition precedent to a Member's exercise of 
its right under Article XIX is supported by Article 11.1(c) of the Safeguards Agreement . This 
provision confirms that the Safeguards Agreement does not apply where a Member seeks, takes, or 
maintains a measure pursuant to a provision of the GATT 1994 other than Article XIX, such as 
Article  XXI. China has clearly avoided taking a position on whe ther Article 11.1(c) would allow for 
safeguards disciplines to apply in a situation where a Member has "sought, taken or maintained" a 
measure pursuant to Article XXI.  China avoids this issue because the United States has clearly 
invoked Article XXI with r espect to the Section 232 measures – indicating that it is taking or at the 
very least seeking to take the measures pursuant to Article XXI – meaning that the Safeguards 
Agreement, including Article 8.2, does not apply to China's additional duties measure.   
134. With regard to the point on the exercise of a right under Article XIX of the GATT 1994 , 
the Panel has asked whether characterizing the application of a safeguard as the exercise of a "right" 
means that it is solely for a Member to decide to "trigger  the applicability of the WTO rules on 
safeguards to its measure."  As an initial matter, the United States would note that characterizing 
the invocation of the WTO safeguards provisions as a right flows directly from the text of Article XIX.  
To recall, Art icle XIX states that a Member "shall be free" to take a safeguard action, subject to 
certain conditions.  This is a language of rights, as opposed to language of obligations.     
135. Turning to Article XIX, as noted, any Member has the right to attempt to e mploy Article XIX 
to seek to temporarily withdraw, modify, or suspend a GATT 1994 obligation.  This decision on 
whether to invoke Article XIX does not, as China argues, somehow unilaterally determine whether WT/DS558/R/Add.1  
 
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  GATT rules apply to the measure that the Member s eeks to take.  To the contrary, any measure 
involved in a safeguards situation is already disciplined by GATT rules.  In fact, the measure is 
inconsistent  with an obligation set out in the GATT 1994.  Further, the Member wishing to adopt the 
measure acknowled ges this inconsistency by proposing to withdraw, modify, or suspend the 
obligation through its invocation of Article XIX.  Thus, with or without  an invocation of the right to 
try to temporarily withdraw, modify, or suspend a GATT obligation, the measure sought to be taken 
is, by definition, inconsistent with GATT obligations.   
136.  China of course asserts it has a fundamental right to retaliate – which China labels as 
"rebalancing" – whenever China unilaterally decides that an alleged breach of the GATT 1994 is a 
"safeguard measure".  But what China misses is that it is the initial exercise of a right by a Member 
seeking to adopt a safeguard that i n turn leads to the consultation requirements and then triggers 
the right of the exporting Member to rebalance in the event the two Members are not able to reach 
agreement in the consultations.   
137. We will now turn to the systemic implication of China's position that a Member may unilaterally 
decide that another Member's measure is an action taken under Article XIX, may unilaterally decide 
that that measure is inconsistent with safeguards disciplines, and may immediately and unilaterally 
retaliate  against that measure.  Under China's approach that the safeguards disciplines apply to any 
measure that presents two "constituent features", almost any measure that is alleged to be WTO -
inconsistent could fall within the safeguards disciplines and allow fo r such retaliation.  China's 
approach would fundamentally reverse the basic rule, as provided in the GATT 1994 and the DSU, 
that retaliatory measures, if appropriate, should be adopted after dispute settlement.  The reversal 
of this basic rule would amount t o a fundamental change in the world trading system since the 
adoption of the GATT 1994 over 70 years ago.  This reversal would be inconsistent with the text of 
WTO Agreement, and would fundamentally undermine the WTO system.   
EXECUTIVE SUMMARY OF U.S. RESPO NSES TO THE PANEL'S QUESTIONS AFTER THE 
PANEL'S VIDEOCONFERENCE WITH THE PARTIES  
Excerpt from U.S. Response to the Panel Question 73  
138. The ordinary meaning of the terms in Article 11.1(c) can be understood as "measures [that a 
Member has] tried to do, s ucceeded in doing or caused to continue in accordance with provisions of 
the GATT 1994 other than Article XIX."  The ordinary meaning of these terms establishes that 
Article  11.1(c) is triggered – and the Safeguards Agreement "does not apply" – when a Membe r acts 
(by seeking, taking or maintaining a measure) pursuant to  a provision of the GATT 1994 other than 
Article XIX.  This result is confirmed by the negotiating history of the Safeguards Agreement.   
139. In particular, although early draft text of the Saf eguards Agreement would have permitted 
Members to take safeguard measures under Article XIX "only in a situation in which other GATT 
provisions do not provide remedies", this approach was abandoned by July 1990, when the draft 
text was changed to provide t hat the agreement "do[es] not prejudice" a Member's ability to take 
action pursuant to provisions of the GATT 1994 other than Article XIX.  As the July 1990 draft 
Agreement on Safeguards provided in relevant part:  
The provisions of paragraph 1 [defining a s afeguard measure] above do not prejudice  
the rights and obligations of contracting parties regarding trade -restrictive measures 
taken in conformity with specific provisions of the General Agreement other than 
Article  XIX, protocols, and agreements and arra ngements negotiated under the 
auspices of GATT.  
140. Although the phrasing and placement of this provision changed as the negotiations went along, 
subsequent drafts of the Safeguards Agreement continued to reflect negotiators' underlying intent 
to prevent the terms of the Safeguards Agreement from prejudicing Members' rights under other 
GATT provisions.  As the October 1990 draft text stated in relevant part:   
No trade -restrictive measure shall be sought or taken by a contracting party unless it 
conforms wit h the provisions of Article XIX as interpreted by the provisions of this 
agreement, or is consistent with other provisions of the General Agreement, or protocols WT/DS558/R/Add.1  
 
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  and agreements or arrangements concluded within the framework of the General 
Agreement.  
141. With this text, the October 1990 draft continues to make clear – like the July 1990 draft – 
that the availability of Article XIX as a release from obligations does not constrain a Member's ability 
to take action pursuant to other provisions of the GATT 1994 . So much is clear based on the use of 
the word "or" in the draft text quoted above, which confirms that Members could seek or take trade -
restrictive measures that were either in conformity with Article XIX or consistent with other 
provisions of the Genera l Agreement (including Article XXI).  
142. The same meaning is clear in the December 1991 draft Safeguards Agreement, in which the 
text that became Article 11.1(c) was moved, rephrased, and divided into parts, to read in relevant 
part: 
(c) Measures sought, taken or maintained by a contracting party pursuant to other 
provisions of the General Agreement, or protocols and agreements or arrangements 
concluded within the framework of the General Agreement are not included in the scope 
of this agreement.  
143. Subparagraph (c) of the December 1991 draft is similar to Article 11.1(c), particularly its 
reference to measures "sought, taken or maintained . . . pursuant to" other provisions of the General 
Agreement.  By referring to measures sought, taken, or maintained " pursuant to" other provisions 
of the General Agreement – a change from the October 1990 draft's reference to measures 
"consistent with" other provisions of the General Agreement, and the July 1990 draft's reference to 
measures "taken in conformity with" sp ecific provisions of the General Agreement – the 
December  1991 draft Safeguards Agreement underscores that the Safeguards Agreement does not 
apply to measures that a Member has tried to do, succeeded in doing or caused to continue in 
accordance with provis ions of the GATT 1994 other than Article XIX.  
144. In the final text of the Safeguards Agreement, this text was again rephrased to emphasize 
this point.  Specifically, the December 1991 draft language stating that measures sought, taken, or 
maintained pursu ant to other provisions of the GATT 1994 "are not included in the scope of" the 
Safeguards Agreement was replaced with a more definite statement that the Safeguards Agreement 
"does not apply" to such measures.  By stating that the Agreement "does not apply"  to such 
measures, this final text makes even clearer that a Member's ability to seek, take, or maintain 
safeguard measures does not constrain a Member's ability to take such action pursuant to other 
provisions of the GATT 1994, such as Article XXI.  And th at where a Member has sought, taken or 
maintained action pursuant to an "other provision of the GATT 1994," as the United States has 
explained, the Safeguards Agreement "does not apply."  
Excerpt from U.S. Response to the Panel Question 89  
145. A Member's e xercise of the right to take emergency action by invoking Article XIX of the 
GATT  1994 is conceptually distinct from the specific notification requirements provided in the 
Safeguards Agreement.  Furthermore, while Article XIX invocation through notice and A rticle 12 
notifications are conceptually distinct, a Member's notification under Article 12 may serve to inform 
other Members of a decision to invoke Article XIX .  
146. In this dispute, however, the conceptual distinction does not appear relevant, because it is 
undisputed that the United States did not invoke its right under Article XIX, nor – since the 
Safeguards Agreement is inapplicable – did the United States provide any of the specific notifications 
set out in the Safeguard Agreement.  
147. For context, the United States notes that the distinction might be relevant in a situation where, 
for example, a Member invoked Article XIX by providing the notice in writing under  Article XIX:2, 
but did not meet all of the notification requirements under Article 12 of the Safeguards Agreement.  
In that hypothetical situation, the Safeguards Agreement would apply, but another Member might 
raise an issue with respect to compliance wit h a specific aspect of Article 12.   
 
 WT/DS558/R/Add.1  
 
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  ANNEX B -2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA  
I. Introduction  
1. This dispute concerns China's measures in response to the U.S. tariffs on imported steel and 
aluminum products which in fact constitutes a safeguard measure. Contrary to the claims o f 
the United States, China 's measures were taken pursuant to and are consistent with 
Article  XIX:3 of the General Agreement on Tariffs and Trade 1994 (the "GATT 1994") and 
Article 8.2 of the WTO Agreement on Safeguards (the "Safeguard Agreement").  
II. Measures at issue  
2. On March 23, 2018, China issued the Ministry of Commerce Notice on Publicly Soliciting 
Opinions on U.S. Imported Steel and Aluminum Products 232 Measures and Chinese 
Countermeasures (the "Opinions Notice"). The Opinions Notice specifically stated that China's 
measures were in response to the U.S. tariffs on imported steel and aluminum products under 
the Section 232 measures, which "in fact constitutes a safeguard measure". The intende d 
suspension of concessions and other obligations in China's measures are based on, inter alia , 
the relevant provisions of the Safeguard Agreement, and are "substantially equivalent" to 
balance the damage of interests to China caused by the U.S. Section 23 2 measures.1  
3. On March 26, 2018, China notified the WTO Committee on Safeguard that it formally requested 
consultations with the United States pursuant to Article 12.3 and 8.1 of the Safeguard 
Agreement and Article XIX:2 of GATT 1994 with respect to th e United States' safeguard 
measures on steel and aluminum, respectively. In these requests, China stated that it takes 
the view that the measure of the United States "is safeguard measure although it's in the 
name of national security measure."2  
4. On Ma rch 29, 2018, pursuant to Article 12.5 of the Safeguard Agreement, China notified the 
Council for Trade in Goods of proposed suspension of concessions and other obligations 
referred to in Article 8 .2 of the Safeguard Agreement. In this notification, China made it clear 
that it takes the view that the Section 232 measures on steel and aluminum products of the 
United States are safeguard measures although it's in the name of national security. It was 
further clarified that the proposed suspension of substanti ally equivalent concessions and 
other obligations by China was pursuant to Article XIX:3 of GATT 1994 and Article 8.2 of the 
Safeguard Agreement.3  
5. On April 1, 2018, China issued the State Council Customs Tariff Commission Notice on 
Suspension of Duty Concession Obligations on Some Imported Products Originating from the 
United States  (the "Implementation Notice"). The Implementation Notice suspended tariff 
concession obligations on some imported products originating from the United States, effective 
on April 2, 2018, by imposing additional import tariff rates of 15% or 25% respectively on 128 
tariff lines. It is stated in the Implementation Notice that the additional import tariff rates were 
to balance the losses to China caused by the U.S. Section 232 M easures on imported steel 
and aluminum products.4  
6. China 's "other additional duties" raised by the United States are not included by the United 
States in its panel request, are not part of or related to China 's measures at issue, and they 
do not form p art of "the matter referred to the DSB" and fall outside of the terms of reference 
of this Panel. In addition, the "other additional duties" were imposed by China unrelated to 
China 's measures at issue, and at a time after the imposition of the additional duties as result 
of China 's measures at issue. Therefore, the Panel does not need to and should not consider 
 
1 China 's First Written Submission, para. 8 . 
2 China 's First Written Submission, para. 9 . 
3 China 's First Written Submission, para. 10.  
4 China 's First Written Submission, para. 11 . WT/DS558/R/Add.1  
 
- 36 - 
 
  the "other additional duties" in the Panel 's assessment of the consistency of China 's measures 
at issue with the Article s II:1(a) and II:1(b) of th e GATT 1994.5 
III. The Claim of The United States under Article I And II Of GATT 1994 Failed to Meet 
the Requirements of Article 6.2 of the DSU and Are Not Within the Panel's Terms of 
Reference  
7. Article 6.2 of the DSU requires that the panel request of the complainant provide a "brief 
summary of the legal basis of the complaint" that is sufficient to "present the problem clearly", 
and thus notify the parties "the nature of its case", and the Appellate Body has explained that 
a panel request must "plainly  connect the challenged measure(s) with the provision(s) of the 
covered agreements claimed to have been infringed".6 A brief summary of the legal basis of 
the complaint must "aim to explain succinctly how or why  the measure at issue is considered 
by the c omplaining Member to be violating the WTO obligation in question". Whether " how or 
why" has been succinctly explained would necessarily depend on the nature  of the obligation 
in the covered agreement claimed to have been violated.7 
8. China 's measures at issue are not stand -alone  measures. China, as well as certain other WTO 
Members, believe that the U.S. measures constitute safeguard measures as provided for in 
Article XIX of the GATT 1994, based on solid factual and legal analysis of the specific feature s 
of the U.S. measures in relation to the WTO safeguards provisions. Pursuant to Article XIX:3 
of the GATT 1994 and Article 8 of the Safeguard Agreement, China took the measures at issue 
in this dispute to act in response to the U.S. safeguard measures, in  order to restore the 
substantially equivalent level of concessions under GATT 1994 between China and the United 
States.8 
9. The legal basis has been expressly specified in China 's measures at issue, and has been 
notified by China to the WTO for the knowl edge of all the WTO Members, including the United 
States. Therefore, the United States was well aware that China's measures at issue were 
plainly taken pursuant to Article XIX:3 of GATT 1994 and Article 8.2 of the Safeguard 
Agreement.9 The United States does not have the right to challenge China 's measures in a 
way that totally disregard its correct nature and legal basis. However, in its panel request, the 
United States has challenged China 's measure as a stand -alone  measure, and the U nited 
States claimed China 's measures at issue inconsistent with Article I and II of the GATT 1994 
without regard to Article XIX of the GATT 1994 or the Safeguard Agreement at all. The failure 
of the United States to invoke Article XIX of GATT 1994 and the  Safeguard Agreement in its 
panel request is a fundamental defect, which results its claim under Article I and II of GATT 
1994 not within the Panel's terms of reference.10 
10. Article XIX and the Safeguard Agreement are not exceptions or mere "affirmative  defense" 
available to respondents for justification of its violation of other GATT 1994 obligations, such 
as Article I and II of the GATT 1994.11 The safeguard regime under Article XIX of GATT 1994 
and the Safeguard Agreement shares fundamental nature and structure with the transitional 
safeguards regime under Article 6 of the Agreement on Textiles and Clothing (the " ATC"). The 
legal status of the transitional safeguard mechanism under Article 6 of ATC has been examined 
by the Panel and the Appellate Body in US-Wool Shirts and Blouses , and Article 6 of ATC was 
not found to be a limited exception or an affirmative defense. Similar to Article 6 of ATC , 
Article  XIX of GATT 1994 and Safeguard Agreement explicitly establish positive obligations for 
Members applying safeguard measures, as well as for Members affected by such measures in 
taking re -balancing measures. Therefore, they are not mere "affirmativ e defense" available to 
respondents in the dispute cases.12 The relationship between Article XIX of GATT 1994 and 
 
5 China 's First Written Submission, para. 156, China 's response to Panel 's question 17.  
6 China 's oral statement in the Panel 's first substantive meeting with the parties, para 14, quoting 
Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  162, 
7 China 's oral statement in the Panel 's first substantive meeting with the parties, para 17, quoting 
Appellate Body Report, EC – Selected Customs Matters , para. 130.    
8 China 's oral statement in the Panel 's first substantive meeting with the parties , paras. 2 -5. 
9 China 's First Written Submission, para. 13.  
10 China 's oral statement in the Panel 's first substantive meeting with the parties, paras. 7 and 8, 
China 's First Written Submission para. 17 . 
11 China 's First Written Submission, para. 15.  
12 China 's First Written Submission, paras. 23 -30. WT/DS558/R/Add.1  
 
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  the Safeguard Agreement and Article I and II of GATT 1994 is not dependent on and does not 
change because of the way the United States chose to frame its claims in its Panel Request in 
this dispute.13 
11. When measures at issue in dispute are plainly taken pursuant to Article XIX of GATT 1994 and 
the Safeguard Agreement, the relevant concessions and obligations under other GATT 1994 
provisions , such as those under Article I and II of GATT 1994, are necessarily suspended, 
withdrawn or modified, and therefore are not eligible to be assessed independent from the 
safeguard provisions.14 Measures taken pursuant to Article XIX of GATT 1994 and the 
Safeguard Agreement would necessarily alter the scope of the relevant concessions or 
obligations established by other GATT 1994 provisions. Such relationship suggests that the 
safeguard measures/rebalancing measures are not first in violation of the origina l obligations 
under other GATT provisions, and then being justified by Article XIX of GATT 1994 and the 
Safeguard Agreement. They do not violate the obligations under other GATT provisions in the 
first place, if taken pursuant to Article XIX of GATT 1994 a nd the Safeguard Agreement.15 In 
such a situation, a breach of Article I and Article II of the GATT 1994 cannot be claimed or 
established based on these provisions alone, without taking into account the suspensions of 
concessions or obligations pursuant t o Article XIX of the GATT 1994 and the Safeguard 
Agreement.16 
12. When measures at issue in dispute are plainly taken pursuant to Article XIX of GATT 1994 and 
the Safeguard Agreement, the "legal basis of the complaint" and "problem" that should be 
present ed clearly in the panel request, as provided for in Article 6.2 of the DSU, are not 
violation of obligations under Article I and II of the GATT 1994 as stand -alone  obligations, but 
whether the "suspension", "withdrawal" or "modification" of obligations und er these GATT 
provisions by the measures taken pursuant to the WTO safeguards disciplines are consistent 
with such disciplines.17 
13. The legal relationship between these provisions stipulates that measures taken pursuant to 
the WTO safeguard provisions, such as China's measures at issue in this dispute, are not first 
in violation of Article I and II of the GATT 1994, and then could be justified under the WTO 
safeguard provisions. China 's measures simply would not violate Article I and II of the GATT 
1994 in the absence of the non -applicability of or inconsistency with the WTO safeguard 
provisions by the measures.  
14. On the face of the Panel Request, the United States is claiming measures explicitly taken 
pursuant to Article 8.2 of the Safeguards Agreement  is directly in violation of Article I and II 
of the GATT 1994, because China's measures are deemed by the United States not to be taken 
pursuant to Article 8.2 of the Safeguards Agreement.18 Therefore,  it is apparent that the U.S. 
claims in its panel req uest in relation to  Article I and II of GATT 1994 are inextricably linked  
to its consideration that Article XIX of GATT 1994 and the Safeguards Agreement do not apply 
in this dispute, which clearly forms an important and integral part of the "problem" the United 
States considered, and an important and integral part of "the nature of the case" of the United 
States, and therefore an important and integral part of the "legal basis " of the complaint of 
the United States under Article I and II of the GATT  1994. By failing to include this integral 
part of its claim on the violation of Article I and II of the GATT 1994 in its panel request, the 
United States could not meet the obligation incumbent upon the complainant to "provide a 
brief summary of the legal basis of the complaint sufficient to present the problem clearly" 
under Article 6.2 of the DSU.19 China and third parties, by reading the U.S. Panel Request, 
cannot ascertain the legal basis of the United States how China 's measures taken pursuant to 
safeguard rebalancing provisions would violate Articles I and II of the GATT 1994. Therefore, 
 
13 China 's Second Written Submission, paras. 15 -18 and 26.  
14 China's First Written Submission, paras. 31 -36. 
15 China's First Written Submission, para. 41.  
16 China's Oral Statement in the Panel's first subs tantive meeting with the parties, para 22 , 
17 China's oral statement in the Panel's first substantive meeting with the parties, para 25,  
18 China's Second Written Submission, paras. 30 -32 and 38.  
19 China's oral statement in the Panel's first substantive meeting with the parties, para. 30; China's 
Second Written Submission, paras. 44 -49, WT/DS558/R/Add.1  
 
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  the U.S. Panel Request fails to satisfy the due process purpose requirement under Article 6.2 
of the DSU.20 
15. For a challenge of China 's measure, which is explicitly and  unambiguously taken pursuant to 
Article XIX:3 of the GATT 1994 and Article 8 of the Safeguard Agreement, in order to "plainly 
connect the challenged measure(s) with the provision(s) of the covered agreements claimed 
to have been infringed", a challenge ca nnot be simply based on Article I and II of the 
GATT  1994. Otherwise, such a challenge would be ignoring  the nature  of the obligations under 
Article  I and II of the GATT 1994, in light of their relationship with Article XIX of the GATT  1994 
and the Safeguard Agreement. The Panel Request of the United States does not appropriately 
"connect" the challenged measure with Article I and II of the GATT 1994, and evades the 
"problem" and "the nature of the case", and therefore fails to provide "brief summary  of the 
legal basis of the complaint" as required by Article 6.2 of the DSU.21 
16. The analytical approach and findings by the Appellate Body in EC – Tariff Preferences  case 
provide useful guidance in the analysis of the U.S. claim in the current dispute.  In that dispute, 
the Appellate Body found that if the complainant failed to raise the enabling clause in the 
panel request, its claim of inconsistency with Article I:1 of the GATT 1994 is not a proper claim 
before the Panel, because the panel request "wou ld not convey the 'legal basis of the complaint 
sufficient to present the problem clearly'".22 
17. In EC – Tariff Preferences . the Appellate Body found that even though the complainant just 
wanted to allege inconsistency with one particular provision of t he GATT 1994, if the 
complainant also seeks to argue the measure is not justified under another WTO provision 
which is the legal basis of the measure, allegation in the Panel Request under the former 
provision alone might be "insufficient for the complaina nt in WTO dispute settlement", and the 
complainant "must allege more than mere inconsistency with" the former provision. The 
Appellate Body found that a complaining party "must, in its request for the establishment of 
a panel" to identify the other provisi on forming the legal basis of the measure "thereby 
'notif[y] the parties and third parties of the nature of [its] case'". The WTO jurisprudence 
clearly shows that the complainant does not have a total freedom to decide not to include a 
provision in its Pan el Request simply because it chooses not to make a claim under such 
provision. Whether the inclusion of such a provision in the Panel Request is required by 
Article  6.2 of the DSU depends on its legal relationship with the provisions under which claims 
are made and the facts of a particular dispute, and subject to the scrutiny of a WTO Panel.23 
Therefore, when an inextricable  link for a claim is missing from the Panel Request, a brief 
summary of the legal basis of the complaint cannot be deemed as properly  provided, and the 
problem cannot be deemed as clearly presented, and the legal requirements of Article 6.2 of 
the DSU are not satisfied.24 
18. There are overwhelming similarities of the relevant facts in  EC – Tariff Preferences  case and 
the current dispu te.  
19. In EC – Tariff Preferences , every measure undertaken pursuant to the Enabling Clause would 
necessarily be inconsistent with Article I, if assessed on that basis alone, but it would be 
exempted from compliance with Article I if it meets the require ments of the Enabling Clause. 
In the current dispute, every rebalancing measures taken by Members pursuant to 
Article  XIX:3 of GATT 1994 and Article 8.2 of the Safeguard Agreement would be in violation 
of Article I of GATT 1994, or be in violation of Artic le II of GATT 1994, if assessed based on 
Articles I and II alone, but would not be in violation of Article I or Article II if it meets the 
requirements in Article XIX:3 and Article 8.2.25 
 
20 China's oral statement in the Panel's second substantive meeting with the parties, para. 20.  
21 China's oral sta tement in the Panel's first substantive meeting with the parties, para 27,  
22 China's First Written Submission, para. 47, China's Second Written Submission, para. 57, quoting 
Appellate Body Report, EC – Tariff Preferences, , para. 110 . 
23 China's First Writ ten Submission, para. 50, quoting  Appellate Body Report, EC – Tariff Preferences , 
para. 110 and 113 , 
24 China's oral statement in the Panel's second substantive meeting with the parties, para 21, quoting 
Appellate Body Report, EC – Tariff Preferences , para . 118.  
25 China's First Written Submission, paras. 47 and 48,  WT/DS558/R/Add.1  
 
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  20. In EC – Tariff Preferences , the EC measure at issue "is plainly  taken pursuant to the Enabling 
Clause". In the current dispute, China's measures at issue are plainly taken pursuant to 
Article  XIX:3 of GATT 1994 and Article 8.2 of the Safeguard Agreement, which is well known 
to the United States.26 
21. In EC – Tariff Preferences , the Enabling Clause sets forth extensive requirements for the 
Members. In the current dispute, extensive requirements are set forth in Article XIX of 
GATT  1994 and Article 8.2 of the Safeguard Agreement in relation to the rebalancing measures 
taken by Members, both substantively and procedurally.27 
22. In the EC – Tariff Preferences , based on these elements considered, the Appellate Body found 
that, since the claim by the complainant of inconsistency with Article I is inextricably linked 
with its argument that the measures do not satisfy the conditions in the Enabling Clause, the 
complainant was required to, inter alia , identify, in its request for the establishment of a panel, 
which obligations in the Enabling Clause the EC measures are alleged to have contravened. 
Similarly, in the current dispute, the claim by the United States of inconsistency with Article I 
and II with respect to China's measures is inextricably linked with its argument that the 
measures do not satisfy the conditions in the Safeguard disciplines, and therefore the United 
States is required to identify in its panel  request how China 's measures do not satisfy the 
Safeguard disciplines.28 The United States failed to do so.  
23. The United States is not entitled to leave the safeguard provisions out of its panel request 
simply because it does not agree the measure can  be justified under the provisions.29 In 
addition, as the legal basis of China 's measures, the WTO safeguard provisions are clearly 
relevant to China 's measures at issue,30 and the relevance is to be determined based on 
objective examination by the Panel , not by subjective consideration by a Member.31 
24. The analytical approach and findings made by the Appellate Body in EC – Tariff Preferences  
case apply to the analysis in the present dispute regardless of the difference in the legal 
characterization be tween the Enabling Clause, which the Appellate Body found to be a 
"defence", and Articles XIX of the GATT 1994 and Article 8.2 of the Safeguards Agreement 
which are not mere "defences". The analysis and determination by the Appellate Body in EC 
– Tariff Preferences  case was not because  the Enabling Clause is a "defence", but rather 
despite  the Enabling Clause is a "defence".32 In addition, the analytical approach applied by 
the Appellate Body in EC – Tariff Preferences  case is a general approach t hat would apply in 
all disputes where issues concerning Article 6.2 of the DSU are raised, and does not only apply 
to disputes concerning Enabling Clause.33 
25. The non -applicability of the WTO safeguard provisions on China's measures at issue is an 
extricable link to plainly connect China's measures with a claim of violation of Article I and II 
of the GATT 1994, absent of which a proper claim to the satisfaction of the requirements of 
Article 6.2 of the DSU cannot be made before the Panel. Therefore, the non-applicability of 
the WTO safeguard provisions is an integral part of the legal basis of the claim, not itself an 
argument.34 
26. In the analysis of China 's preliminary ruling request, the  threshold issue of whether the Panel 
Request meets  the requirem ents of Article  6.2 of the DSU and the substantive issue of whether 
a properly filed claim can be substantiated should not be confused. Panel should not first 
analyze and determine on the substantive issue that whether the WTO safeguard disciplines 
indeed apply to China 's measures at issue, even though such an issue is not included in the 
U.S. Panel Request at all, either as a claim or as part of the "legal basis" of a claim, and then 
based on such substantive determination, turns back to its analysis and d etermination on the 
 
26 China's First Written Submission, paras. 49 and 50,  
27 China's First Written Submission, paras. 51 and 52,  
28 China's First Written Submission, paras. 53 and 54 , 
29 China's First Written Subm ission, paras. 56 and 57, quoting Appellate Body Report, Brazil – Taxation , 
para 5.366.  
30 China's oral statement in the Panel's first substantive meeting with the parties, para 32,  
31 China's oral statement in the Panel's first substantive meeting with th e parties, para 34,  
32 China's response to Panel's question 5, paras. 7 -10. 
33 China's response to Panel's question 5, paras. 11 -14. 
34 China's Second Written Submission, para. 53,  WT/DS558/R/Add.1  
 
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  threshold issue that whether the U.S. Panel Request meets the requirement of Article 6.2 of 
the DSU. Such an approach would be to examine the sufficiency of a Panel Request, not on 
the basis of the Panel Request itself, but on the basis  of the assumption the Panel Request is 
sufficient in the first place. This plainly conflates the proper order of analysis.35 
IV. Order of Analysis  
27. The Panel should first examine China 's measures at issue in relation to Article 8.2 of the 
Safeguards Agreement, and only when the Panel was to find that this provision does not apply 
to the measures at issue, the Panel would turn to and would need to turn to examine the 
claims of the United States under Articles I and II  of the GATT 1994. This order of an alysis is 
based on the correct understanding of the legal relationship between the WTO safeguards 
disciplines and Articles I and II  of the GATT 1994. A measure taken pursuant to and consistent 
with Article 8.2 of the Safeguards Agreement "suspend the appli cation of" other obligations 
under GATT 1994, and would not constitute a violation of these other obligations, including 
Articles I and II  of GATT 1994. Alternative order of analysis is not a correct reflection of the 
legal relationship between the relevan t provisions.36 
V. Article 8.2 of the Safeguards Agreement  Applies  to China 's Measures at Issue  
28. China believes the relevant analytical approach taken and principles established by the 
Appellate Body concerning the applicability of safeguard discipline s in Indonesia – Iron or Steel 
Products  case would provide useful guidance in determining whether a measure falls within 
Article 8.2. The Panel would need to first identify the "constituent features" of a measure 
under Article 8.2 of the Safeguards Agreeme nt, and then analyze, based on the facts before 
it, whether "constituent features" of Article 8.2 measure are present for the measures at 
issue.37 
29. In Indonesia – Iron or Steel Products  case, the Appellate Body relied on the plain meaning of 
the releva nt provision to identify two "constituent features " of a safeguard measure. The 
Appellate Body first identified a feature of the measure concerning the type of "action" 
contemplated in the provision, and then identified another feature of the measure conce rning 
the purpose or objective of the "action", and reasoned that the "action" must have 
"demonstrable link" to that specific "objective". The Appellate Body distinguished factors 
included in the  provision into those pertaining to the "legal characterizati on" of a measure for 
purposes of determining the applicability  of the WTO safeguard disciplines, and those that are 
the "substantive conditions" and "procedural requirements" that determine the WTO-
consistency  of a safeguard measure, and cautioned they sho uld not be conflated.38 
30. Applying the analytical approach by the Appellate Body, based on plain reading of Article 8.2 
of the Safeguards Agreement, suspension of the concessions or other obligations under GATT 
1994 is apparently the "action" contemplat ed. Reading together Article 8.2 with Article 8.1, 
which provides for trade compensation for the purpose "to maintain" a substantially equivalent 
level of concessions and other obligations to that existing under GATT 1994 between the 
Member taking the safe guard measure and the affected exporting Members, the "objective" 
of the "action" provided in Article 8.2 is, for the affected exporting Members, "to maintain a 
substantially equivalent level of concessions and other obligations", "to the trade of the 
Memb er applying the safeguard measure". For a measure to be subject to Article 8.2 
disciplines, there must be a demonstrable link between the "action" of suspension of 
concessions or other obligations and such an objective. These are the legal characteristics or 
"constituent features" of an Article 8.2 measure for the determination of the applicability  of 
the WTO safeguard disciplines on a measure.39  
 
35 China's response to Panel's question 1 . 
36 China's response to Panel's question 18, and China's Second Written Submission, paras. 62 -66, 
37 China's response to Panel's question 24, para. 48,  
38 China's response to Panel's question 24, paras. 49 and 50, quoting Appellate Body Report, Indonesia 
– Iron or Steel Products , para 5.57.  
39 China's response to Panel's question 24, paras. 51 -53, and China's Second Written Submission, 
paras. 104 and 105.  WT/DS558/R/Add.1  
 
- 41 - 
 
  31. Other elements in Article 8.2, including "no agreement is reached within 30 days in the 
consultations under paragraph 3 of Article 12", "not later than 90 days after the measure is 
applied", "upon the expiration of 30 days from the day on which written notice of such 
suspension is received by the Council for Trade in Goods", and "the suspensi on of which the 
Council for Trade in Goods does not disapprove", are "substantive conditions" or "procedural 
requirements" not relating to the applicability of Article 8.2. In addition, whether the 
suspension under Article 8.2 is indeed "substantially equi valent" to those by the safeguard 
measure is a "substantive condition" relating to the WTO -consistency, not part of legal 
characterization of the measure.40 
32. The use of the phrases "to propose" or "proposing to " in Article XIX of the GATT 1994 and 
Articles 8 and 12 of the Agreement on Safeguards is not relevant for the purposes of 
determining the applicability of the provisions. From the structure of these provisions, it is 
clear that the phrases should be read i n light of the temporal requirement in the provisions, 
and reflect the procedural requirements in the provisions that a safeguard measure, or action 
pursuant to Article XIX:1, could not be actually taken by a Member before a notice is given 
and a consultat ion opportunity is afforded. A safeguard measure taken by a Member without 
observing such procedural requirement would be in violation of this procedural obligations, 
but would not make the safeguard disciplines not applicable to the measure.  
33. It is tru e that measure under Article 8.2 cannot be used to counteract or rebalance any type 
of measure taken by another Member, but only safeguard measure. However, whether a 
measure is a safeguard measure is not determined by self -label by a Member, and the 
tempo ral condition in Article 8.2 requires Members to take rebalancing measures "not later 
than 90 days after " a safeguard measure is applied, making clear the affected Members would 
not be provided with certainty whether the underlying measure is objectively a  safeguard 
measure when the rebalancing measures are taken as authorized under Article 8.2. Therefore, 
the Panel can determine whether a measure falls under Article 8.2 of the Agreement on 
Safeguards by objectively assess if the measure is "designed" to re balance concessions and 
obligations with suspensions of concessions and other obligations by a safeguard measure, 
without determining whether an underlying safeguard measure indeed objectively exists. 
Whether the underlying measure is indeed objectively a safeguard measure should be part of 
the panel 's examination of the consistency with Article 8.2 of the measure at issue.41  
34. The object and purpose of the Safeguards Agreement does not support leaving the affected 
Members' right to take rebalancing mea sures in the control of Members applying safeguard 
measures. Rebalancing right of Members affected by a safeguard measure under Article 8.2 
is an important part of the overall rights and obligations in the multilateral safeguard 
disciplines. For the rebala ncing right under Article 8.2 of the Safeguards Agreement to have 
its intended function, it is important to notice that Article 8.2 leaves such right in the hands 
of the Members affected, not in the hands of the Member imposing the safeguard measure. If 
a Member 's right to take rebalancing measures is subject to another Member 's action to label 
or notify its measures as safeguard measures, the right of Members under Article 8.2 could 
easily be deprived, contrary to the object and purpose of the Safeguards A greement.42 
35. The proposition of the United States that in order to characterize a measure as rebalancing 
measure, all of the requirements for the imposition of the rebalancing measure in Article 8 of 
the Safeguards Agreement need to be satisfied confla ted the features of measures relating to 
the applicability  of the Safeguards Agreement with conditions and requirements relating to 
the consistency  with the Safeguards Agreement.43 
36. The non -applicability of Article 8.2 of the Safeguards Agreement is an  inextricable link of 
China's measures to the claim of the United State for violation of Article I and II of the 
GATT  1994. The United States needs to first discharge its burden to substantiate it and failed 
to do so. The United States merely compared Chin a's measures with the concessions and 
 
40 China's response to Panel's question 24, paras. 54 and 55.  
41 China's response to Panel's question 24, paras. 56 -60, and China's Second Written Submission, 
paras. 107 and 108.  
42 China's Second Written Submission, paras. 109 -113. 
43 China's Second Written Submission, para. 87, quoting Appellate Body Report, Indonesia – Iron or 
Steel Products , para 5.62 . WT/DS558/R/Add.1  
 
- 42 - 
 
  obligations under Article I and II of the GATT 1994, without regard to the safeguard disciplines, 
which does not serve to establish a prima facie  case of the U.S. claim of violation  of Article I 
and II of the GATT 1994 .44 
37. China agrees that there must be an underlying safeguard measure as provided for in 
Article  XIX of the GATT 1994 for the affected Member to have the right to take rebalancing 
measures under Article 8.2. However, whether a Member has the "right" to implement a 
rebalancing measure is an issue relating to the consistency with Article 8.2, not the 
applicability of the provision. This is consistent with the findings of the Appellate Body that 
the factors relating to the "right" of a Member to apply a saf eguard measure are the 
substantive conditions and procedural requirements, failing which the safeguard measures 
applied are inconsistent  with the safeguard provisions, but the lack of "right" does not make 
the WTO safeguard disciplines inapplicable  to the measure.45 
38. China's measures at issue imposed additional import duties in excess of China's bound duty 
rates for certain products in its Schedules of Concessions and therefore suspended the 
relevant concessions. In addition, the suspension of the conce ssions by China's measures only 
applies to the imports from the United States, and suspended the MFN obligations in relation 
to the United States concerning the products covered by China's measures. This "action" taken 
by China through the measures at issu e thus suspended China's concessions and other 
obligations under Article I and II of the GATT 1994 and satisfies the first of the "constituent 
features" of measure under Article 8.2 of the Safeguards Agreement.46 
39. The official documents and calculation  of the amount of suspension as well as the consultation 
request and notification within WTO relating to China 's measures at issue all point to the fact 
that the suspension of concessions and obligations are clearly designed for a single and specific 
purpo se, rebalancing the substantially equivalent level of concessions and obligations to the 
trade of the United States for its application of a safeguard measure. There is clearly a 
"demonstrable link" between the "action" of suspension and such an objective.47 
40. Therefore, China's measures at issue present both "constituent features" of a measure under 
Article 8.2 of the Safeguards Agreement and the provision applies.  
VI. The Measures of the United States Constitute Safeguards Measures Provided for in 
Article XIX of the GATT 1994  
41. As the Appellate Body affirmed in  Indonesia – Iron or Steel Products , the nature of a measure 
is an objective question to be evaluated by the Panel. The Appellate Body emphasized that 
"the description of a measure proffered by a party and 'the label given to [it] under municipal 
law' are 'not dispositive' of the proper legal characterization of that measure under the covered 
agreements."48 The Appellate Body identified two "constituent features" that must be presen t 
in order for a panel to properly determine that a measure constitutes a safeguard measure. 
First, the measure must be an action that " suspend, in whole or in part, a GATT obligation or 
withdraw or modify a GATT concession." Second, the measure must be d esigned to prevent 
or remedy serious injury to the Member's domestic industry caused or threatened by increased 
imports of the subject product.49 
42. The Appellate Body elaborated that a panel should evaluate and give due consideration to all 
relevant fac tors, and a panel must identify all the aspects of the measure that may have a 
 
44 China's Second Wri tten Submission, paras. 72 -81, 
45 China's Second Written Submission, paras. 90 -95, quoting Appellate Body Report, US – Line Pipe , 
para. 84.  
46 China's Second Written Submission, para. 116.  
47 China's Second Written Submission, paras. 117 and 118.  
48 China' s First Written Submission, paras. 93 and 94, quoting Appellate Body Report, Indonesia – Iron 
or Steel Products , para. 5.32.  
49 China's First Written Submission, paras. 95 -97, quoting Appellate Body Report, Indonesia – Iron or 
Steel Products , paras. 5.55 and 5.60.  WT/DS558/R/Add.1  
 
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  bearing on its legal characterization, recognize which of those aspects are the most central to 
that measure.50 
43. Thus, in the current dispute, the panel is required to asses s objectively whether the U.S. 
Section 232 measures constitute safeguard measures. The panel should first determine 
whether the Section 232 measures "suspend a GATT obligation, in whole or in part, or 
withdraw or modify a GATT concession", and second, whet her the measures are "designed to 
prevent or remedy serious injury" to the U.S. steel and aluminum industries.  
44. The Section  232 measures impose duties on steel and aluminum imports that exceed the 
applicable bound rates set forth in the HTSUS in violati on of Article  II of the GATT 1994, and 
present the first of the two requisite "constituent features" of a safeguard measure identified 
by the Appellate Body in Indonesia – Iron or Steel Products .  The additional import duties of 
25 percent on steel imports  and 10 percent on aluminum imports are covered by Article  II:1(b) 
because they constitute "ordinary customs duties", and effective "on … importation." 
Alternatively, if the Section 232 measures are not "ordinary customs duties", since they are 
not measure s covered by Article  II:2, they must be "other duties or charges … imposed on or 
in connection with importation" imposed inconsistently with paragraph 1(b) of Article  II 
because no such "other duty or charge" was recorded in the HTSUS consistently with the  
Understanding on Interpretation of Article  II:1(b) of the GATT 1994.51 
45. There is ample evidence demonstrating that the withdrawal or modifications of GATT 
concessions under the Section 232 measures are "designed to prevent or remedy serious 
injury" to the U.S. steel and aluminum industries, and the measures present the second 
"constituent feature" identified by the Appellate Body in  Indonesia – Iron or Steel Products . 
46. The second sentence of Section 232 focuses on factors relating to the "impact of foreign 
competition on the economic welfare of domestic industries", which co ntemplates a broad 
inquiry into the effects of increased imports on the state of a domestic industry. The inquiry 
into whether "domestic industries" are suffering from "serious effects" due to "excessive 
imports" contemplated by Section 232, second sentenc e, mirrors the inquiry under Articles 2 
and 4 of the Safeguard Agreement into whether a "domestic industry" is suffering from 
"serious injury" due to "increased quantities" of imports. The contents of the Section 232 
Reports, which underlie the Section 232  measures, affirm that it is the factors in the second 
sentence of Section 232 that drive the analysis and conclusions of both Reports.52 
47. The overall conclusion of the Steel Report and Aluminum Report further confirms that the 
prevention or remediatio n of serious injury to the domestic steel and aluminum industry is a 
central and independent aspect of the Section 232 measures. This overall conclusion of the 
reports is based on several subsidiary findings, and the analysis underlying these subsidiary 
findings coincides with the "relevant factors" identified in Article  4.2(a) of the Safeguard 
Agreement. There is a "demonstrable link" between the recommendations provided in the 
Steel Report and Aluminum Report and the objective of preventing or remedying i njury to the 
domestic steel and aluminum industry.53 
48. The proclamations issued based on the determinations of the Section 232 Reports confirm 
that the Section 232 measures are properly characterized as safeguard measures designed to 
address the effects  of increased imports on domestic industries. In addition, a memorandum 
prepared by the U.S. Department of Defense demonstrates a central objective of the 
Section  232 Measures is to protect and remedy the condition of the domestic U.S. industries 
for their  own sake, and not merely insofar as these industries are necessary to meet national 
defence requirements. And public statements made by U.S. government official indicate a 
demonstrable link between the Section 232 measures and the objective of protecting domestic 
industries.54  
 
50 China's First Written Submission, paras. 93 and 94, quoting Appellate Body Report, Indonesia – Iron 
or Steel Product s, paras. 98 -100. 
51 China's First Written Submission, paras. 103 -110. 
52 China's First Written Submission, paras. 112 -115. 
53 China's First Written Submission, paras. 116 -133. 
54 China's First Written Submission, paras. 134 -148. WT/DS558/R/Add.1  
 
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  49. All the evidences establish that the Section 232 measures "suspend a GATT obligation, in 
whole or in part, or withdraw or modify a GATT concession" and have a demonstrable link to 
the objective of remedying serious injury to do mestic industries caused by increased imports. 
The U.S. Section 232 measures are therefore safeguard measures.  
50. In Indonesia – Iron or Steel Products , no element or feature other than the two "constituent 
features" has been identified by the Appellate B ody as also relating to legal characterization 
of a safeguard measure. This suggests the two "constituent features" identified are not only 
necessary, but also sufficient. If a measure designed for the specific and narrowly construed 
purpose of preventing or remedying the injury suffered by the domestic industry caused by 
increased imports could be regarded as not a safeguard measure in some way, it would make 
it easy for Members to evade the application of the substantive conditions and procedural 
requirem ents under the WTO safeguard disciplines, which would run contrary to the object 
and purpose of the Safeguards Agreement "to re -establish multilateral control over safeguards 
and eliminate measures that escape such control" as sets out in its preamble.55 
51. The United States argued that its measures are not safeguard measures because it did not 
invoke the safeguard provisions in applying its measures, and it did not notify the measures 
to the WTO as such. However, Label under municipal law for a measure i s not dispositive of 
the proper legal characterization of a measure, and the notification requirement under 
Article  12 of the Safeguard Agreement is an obligation that Members applying safeguard 
measures have to follow in order to apply the safeguard measu res in conformity with the 
safeguard discipline.56  
52. Notification is one of the "all relevant factors" that "a panel should evaluate and give due 
consideration to determine whether a measure at issue present the two "constituent features", 
not in and o f itself dispositive. The notification requirement under Article 12 of the Safeguards 
Agreement is clearly a procedural requirement for the Member taking a safeguard measure, 
failing which a safeguard measure won 't be consistent with the Member 's obligatio n. When a 
Member fails to make notification and violates its notification obligation, such failure does not 
change the contents and substance of the measure itself, either in terms of the action taken 
or the objective of such action, and does not renders W TO safeguard disciplines non -applicable 
to the measure.57  
53. Article 12 of the Safeguards Agreement "clarified and reinforced" the requirements in 
Article  XIX:2 of the GATT 1994 with detailed and specific requirements in relation to the time 
and content s of notification, as well as in relation to the conducts of consultation, and there 
are no separate sets of notifications under Article XIX:2 and Article 12. The legal relationship 
between Article XIX:2 and Article 12 of the Safeguards Agreement does not support the 
proposition of the United States that they serve distinct and different legal purpose 
respectively for the applicability  of the safeguard disciplines and the consistency  with the 
safeguard disciplines.58 
54. In fact, the text of Article X IX:2 itself makes it clear the notification requirement has nothing 
to do with the existence of a safeguard measure. Article  XIX:2 provides that "[b]efore any 
[Member] shall take action pursuant to the provisions of paragraph 1  [i.e. Article  XIX:1], it 
shall gi ve notice in writing to the [Members] as far in advance as may be practicable …". 
Already it is clear from the text that a safeguard measure - the "action" described in 
Article  XIX:1 - exists independently of the obligation to notify in Article  XIX:2.59 
55. Further, the counter -notification provision in Article 12.8 of the Safeguards Agreement further 
clarifies that even if a Member failed to meet its notification requirement for a safeguard 
measure, this does not render the measure falling outside of the scope of measures "dealt 
 
55 China's response to Pan el's questions 25 and 28.  
56 China's oral statement in the Panel's first substantive meeting with the parties, paras. 41 -43. 
57 China's response to Panel's questions 25 and 34.  
58 China's Second Written Submission, paras. 142 -144. 
59 China's oral statement  in the Panel's second substantive meeting with the parties, para. 42.  WT/DS558/R/Add.1  
 
- 45 - 
 
  with in this Agreement". Other Members are entitled to treat such measures as safeguard 
measures and notify the Committee on Safeguards instead.60 
56. Article 11 of the DSU requires the assessment of facts and applicability of the  covered 
agreement by the Panel to be "objective", therefore going beyond the domestic labelling of 
the measure by a Member or the title of the relevant municipal law of a Member. The Panel 's 
"independent and objective" assessment of these factors would ne ed to reveal "the design, 
structure, and expected operation of the measure as a whole", regardless of its domestic 
labelling.61 The actual purpose of a measure is subject to the objective assessment by the 
Panel, not determined by self -declaration by a Me mber. Otherwise, it would leave the 
applicability of covered agreements to the subjective characterization by a Member, running 
afoul of the right specifically bestowed on the Panel by Article 11 of the DSU.62 
57. The phrase "shall be free" in Article XIX of the GATT 1994 sets out a "right" for the Members. 
However, the right so set out is not unlimited, and does not support the interpretation that 
when a measure is actually taken, a Member can decide the non -application of the safeguard 
discipl ines by not invoking through notification Article XIX of the GATT 1994. The Appellate 
Body has found that such "freedom" granted in Article XIX:1(a) is the right within the 
limitations that has been specifically provided for therein, and is not subject to interpretation 
that goes beyond its scope. The text of Article XIX:1(a) indicates that "shall be free" grants 
Members a right to decide on its own or at its discretion, when the relevant conditions are 
met, whether to impose a safeguard measure or not to i mpose a safeguard measure. However, 
when the Member exercised this right and decided to impose the type of action (suspension, 
withdrawal or modification of concessions or obligations), for the specific objective (to prevent 
or remedy injury to the domesti c industry caused by increased imports), the "freedom" 
granted to it has already been exercised. Nothing in the legal text suggests that when the 
measure is already and actually taken, "shall be free" granted the Member a second layer of 
right to decide at  its own discretion whether safeguard disciplines should or should not apply 
to the measure it indeed imposed, through its choice whether to notify the measure as such.63 
58. The proposition that "shall be free" stipulates that it rests solely on a Member  to decide 
whether to trigger the applicability of the WTO rules on safeguards to its measure runs in 
direct contradiction to the object and purpose of the Safeguards Agreement, and also runs in 
direct contradiction to the provision in Article 11 of the DS U, which provides that the 
applicability of the relevant covered agreements and provisions is subject to the objective 
assessment and determination of the Panels, not Members.64 
59. Article 11.1(c) of the Safeguards Agreement  provides that the Safeguards Agreement "does 
not apply to measures sought, taken or maintained by a Member  pursuant to provisions of 
GATT 1994 other than Article XIX ". The ordinary meaning of the phrase "pursuant to" in 
Article  11.1(c) requires that the me asure is consistent with the relevant legal basis, and 
requires that there must be a genuine connection between the measure and the provision of 
the GATT 1994 other than Article XIX. The words "sought, taken or maintained" modify the 
word "measures", and d o not modify the phrase "pursuant to ". Therefore, the genuine 
connection between the measure and the provision of the GATT 1994 other than Article XIX 
must be objectively in existence, and could not be conclusively established by the "invocation " 
of the Me mbers at their own will or choice.65 
60. Article 11 of DSU provides that a panel is under  a duty to examine, as part of its "objective 
assessment", whether the provisions of the covered  agreements are "applicable" to the 
measures at issue and are "relevan t" to the dispute case. Article 11 of the DSU provides as 
context that Article 11.1(c) of the Safeguards Agreement  does not provide the Members the 
unilateral right to determine that the Safeguards Agreement does not apply to its measures 
 
60 China's response to Panel's question 34, and China's Second Written Submission, paras. 145 and 146.  
61 China's response to Panel's question 30.  
62 China's response to Panel's questio n 31. 
63 China's response to Panel's question 60.  
64 China's response to Panel's question 70.  
65 China's response to Panel's question 73, paras. 23 -27. WT/DS558/R/Add.1  
 
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  by simply not "invoking " Article XIX, or by simply "invoking " other provisions of the 
GATT  1994.66 
61. Article 11.1(a) and Article 11.1(c) could be interpreted coherently. If a measure is objectively 
a measure provided for or set forth in Article XIX of GATT 1994, that me asure could not at 
the same time be "pursuant to provisions of GATT 1994 other than Article XIX " as in 
Article  11.1(c), and, by the provisions of Article 11.1(a), the Safeguards Agreement would 
apply to that measure. On the other hand, if there is objectiv ely a genuine connection between 
the measure and provisions of GATT 1994 other than Article XIX, the measure is not 
objectively a measure provided for or set forth in Article XIX of GATT 1994, and the Safeguards 
Agreement does not apply to that measure. Su ch examination of the measures should be 
based on objective criteria, and based on objective legal characteristics of the measures.67 
62. Article 11.1(c) does not provide that it is for the Member adopting a measure to decide what 
type of mechanisms for o therwise GATT -inconsistent measures are applicable, as argued by 
the United States. Such interpretation would run in direct contradiction to the object and 
purpose of the Safeguards Agreement.  
VII. Conclusion  
63. For the reasons set forth above, China requests that the Panel to reject the claims of the 
United States that China's measures at issue are inconsistent with China's obligations under 
Article  I:1, II:1(a) and II:1(b) of GATT 1994.  
 
_______________  
 
 
 
 
 
66 China's response to Panel's question 73, para. 29.  
67 China's response to Panel's question 73, para. 31. WT/DS558/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of the European Union  48 
Annex  C-2 Integrated executive summary of the arguments of Japan  53 
Annex  C-3 Integrated executive summary of the arguments of New Zealand  56 
Annex  C-4 Integrated executive summary of the arguments  of Norway  57 
Annex  C-5 Integrated executive summary of the arguments of the Russian Federation  61 
Annex  C-6 Integrated executive summary of the arguments of Switzerland  65 
Annex  C-7 Integrated executive summary of the arguments of Türkiye  69 
Annex  C-8 Integrated executive summary of the arguments of Ukraine  75 
 
 
 WT/DS558/R/Add.1  
 
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  ANNEX  C-1 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION   
I. THE UNITED STATES ' FAILURE TO REFER IN ITS CONSULTATIONS REQUEST OR 
PANEL REQUEST TO THE SPECIFIC CONTROLLING PROVISIONS, WHICH ARE ARTICLE 8 
OF THE AGREEMENT ON SAFEGUARDS AND ARTICLE XIX:3(A) OF THE GATT 1994  
1. The US fails to refer to the provisions that control the question of permissible rebalancing in 
response to a safeguard measures: Article XIX:3(a) of the GATT 1994 and Article 8 of the Agreement 
on Safeguards. It believes that, in doing so, it can convince  the Panel to close its eyes to the fact 
that the US measure is a safeguard, and push the Panel into treating the controlling provisions as 
so-called "affirmative defences".  
2. The US errs when arguing that Article XIX:3(a) of the GATT 1994 and Article 8 of the 
Agreement on Safeguards are so -called "affirmative defences", assimilated for example to Article XX 
of the GATT 1994.  
3. Article XIX:3(a) (which refers to rebalancing), just like XIX:1(a) (which refers to the right to 
impose a safeguard), provide t hat, if the requirements are met, Members "shall be free" to suspend 
the relevant obligations. This is not a question of "justifying" a "violation". In other words, these 
provisions are not affirmative defences, but enable the taking of an action (i.e. sus pend the 
obligation).  
4. In that sense, both of these provisions are similar to Article XXVIII of the GATT 1994 
(modification of schedules) which provides that a party which proposes to modify or withdraw a 
concession "shall be free to do so". Modifying a  concession alters the content of that Member 's 
obligations. It does not violate those obligations, such that justification would be called for. The legal 
position is also similar with respect to anti -dumping or countervailing measures taken under 
Article  VI of the GATT. Article VI does not "justify" a violation of Articles I and II; rather, it provides 
for the possibility to take an action which does not constitute a violation. The US also errs when 
arguing that the Agreement on Safeguards as a whole be ch aracterised as a mere "affirmative 
defence". This is incorrect, because that Agreement is full of provisions which are simply in the 
nature of obligations.  
5. Cases such as US – 1916 Act , Australia – Apples , EC – Seal Products and Thailand – Cigarettes 
(Philippines) (Article 21.5 – Philippines) show that the present Additional Duties cases are not an 
isolated instance, but rather a type of situation that has occurred in the past.  In those cases, the 
WTO adjudicating bodies did not shy away from fulfilling t heir duties and deciding on the applicability 
of the covered agreements. Logically, such an analysis took place upfront, before the substance of 
the different claims was reached.  
6. The European Union considers that past cases concerning the relationship b etween the 
Anti-Dumping Agreement and the GATT 1994 provide useful guidance to understand the relationship 
between the Agreement on Safeguards and certain provisions of the GATT 1994. In particular, the 
European Union considers that those cases provide sup port to its legal position that the Agreement 
on Safeguards is not in the nature of an affirmative defence to an alleged violation of Articles I or II 
of the GATT 1994.  
II. BURDEN OF PROOF  
7. Because Article 8.2 is not an affirmative defence, it is not for  the respondent to raise or to 
make a case under it. Rather, Article 8.2 is the controlling provision, and the US should have raised 
it, if it was to have any hope of succeeding in its claims. It failed to do so.  
8. Thus, the European Union agrees that it is the complainant that has the burden of making a 
prima facie  case of inconsistency with Article 8 of the Agreement on Safeguards. The European Union WT/DS558/R/Add.1  
 
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  recalls that the Agreement on Safeguards is not in the nature of an affirmative defence and the 
initial o nus rests on the complainant, which has to make its case . 
III. ORDER  OF ANALYSIS  
9. The European Union agrees with the US that the Panel can properly assess the more specific 
claim before assessing the more general claim. Article II:1(b) is, indeed, more specific, as it 
proscribes a specific type of less favourable treatment (duties in excess of bound rates) which will 
also constitute less favourable treatment under Article II:1(a) (the latter being a consequential 
claim).  
10. The European Union consi ders that the same approach of addressing the more specific 
provision before the more general provision should guide the Panel 's order of analysis between 
Articles 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994, on the one 
hand, a nd Articles I and II of the GATT 1994, on the other hand.  
11. First, Article 8.2 of the Agreement on Safeguards is the more specific provision.  
12. Second, beginning the analysis with Article 8.2 offers possibilities to exercise judicial economy. 
If the Pa nel were to find that Article 8.2 applies to the measures at issue, it would be impossible for 
the US to succeed in its claims under Article I and II of the GATT 1994, because the US would have 
failed to even make a claim under the controlling provisions. Beginning with Articles I and II of the 
GATT 1994 offers no such possibilities, in any circumstances. This is because a measure that is 
consistent with Article 8.2 (including a measure that is presumed to be consistent with that provision 
because no claim to the contrary has been made, as in this case) cannot be inconsistent with 
Articles  I and II of the GATT 1994.  
13. Third, the applicability of a covered agreement is a threshold issue which should, as a general 
matter, be assessed first. This question of applicability is always an objective question that is never 
entirely in the hands of either litigant acting unilaterally.  
IV. THE AGREEMENT ON SAFEGUARDS AND ARTICLE XIX OF THE GATT 1994 ARE 
APPLICABLE TO THE MEASURES ADOPTED BY THE UNITED STATES  
14. The E U recalls that, according to settled case -law, and as recently confirmed by the 
Appellate  Body in the specific context of the Agreement on Safeguards, whether or not a measure 
is subject to the disciplines of the Agreement on Safeguards is an objective que stion.  Contrary to 
what the US asserts, it is not a question to be decided unilaterally by the Member imposing the 
safeguard measure.  
15. A reason why the characterisation of a measure as a safeguard must be an objective question 
is that Article XIX and th e rules of the Agreement on Safeguards include important and fundamental 
rights of other WTO Members, notably the right to suspend equivalent GATT obligations such as are 
at issue in this dispute.   
16. In making that objective assessment of whether a measu re is a safeguard, the Panel must 
engage in a case -specific assessment, having regard to all of the relevant facts. In this respect, and 
again contrary to what the US asserts, the domestic procedures pursuant to which a measure has 
been adopted are not det erminative, and neither are the WTO procedures that have been followed, 
or not followed, by the adopting Member.  
17. The fulfilment of the requirements in Article 12 is a question of consistency, and not a question 
that decides the applicability of the Ag reement on Safeguards. If a Member decides to take a 
measure that is objectively a safeguard without notifying it, the conclusion is not that Article XIX of 
the GATT 1994 and the Agreement on Safeguards do not apply. The conclusion is that the measure 
is WTO-inconsistent.  
18. Furthermore, the Appellate Body has previously held that the characterisation of a measure 
under a Member's municipal law is not dispositive of the question of whether or not that measure is 
governed by the provisions of a particular a greement.  WT/DS558/R/Add.1  
 
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  19. In the context of Article 1 of the Agreement on Safeguards, in order to be a safeguard 
measure, a measure must have two constituent features. First, it must suspend, in whole or in part, 
a GATT obligation or withdraw or modify a GATT concess ion. Second, the suspension, withdrawal, 
or modification in question must be designed to prevent or remedy serious injury to the Member's 
domestic industry caused or threatened by increased imports of the relevant products.  The 
constituent features of a sa feguard measure are distinct from and not to be conflated with the 
conditions that must be met in order for the right to adopt, apply and maintain a safeguard measure 
to be exercised.  
20. If the measures have "a specific objective" of preventing or remedying serious injury to the 
Member's domestic industry they are subject to the disciplines of the Agreement on Safeguards. If 
so, even if the measure had some other "aspects" that suggest that it also has another objective, 
this would not detract from the conclusion that the measure is a safeguard. In such circumstances, 
whatever other provisions of another agreement that might be applicable would not exempt the 
measure from complying fully with the conditions set out in the Agreement on Safeguards. In the 
EU's view, the test to be performed when deciding whether the Agreement on Safeguards applies to 
a measure is not a "centre of gravity" test.  
21. In conducting its assessment the Panel must have regard to the measure "as a whole". The 
only reasonable o utcome of such an objective assessment is to conclude that the US measures are 
safeguards.  
22. The US measures suspend at least one GATT obligation, in whole or in part, or withdraw or 
modify at least one GATT concession. Indeed, prior to the Section 232 measures the US customs 
duties on the steel and aluminium products at issue were bound, as well as applied at the level of 
0%. However, the US measures provide for a customs duty rate of 25% ad valorem for the relevant 
steel products and 10% ad valorem for  the relevant aluminium products.  
23. The US measures have a specific objective of preventing or remedying serious injury to the 
US domestic steel and aluminium industries caused or threatened by increased imports of the 
relevant products. Furthermore, th is is one of the "most central" aspects of the measures. Finally, 
this is also a defining characteristic of a safeguard measure. Thus, with the two defining 
characteristics being cumulatively present, the US measures clearly fall within the scope of the 
Agreement on Safeguards. This conclusion is clearly supported by an analysis of the "design, 
structure, and expected operation" of the steel and aluminium measures, as well as by several 
additional features of those measures. Moreover, those measures were no t taken pursuant to any 
provisions of the GATT 1994 other than Article XIX.  
24. The European Union considers that whether the US' Section 232 duties constitute a safeguard 
measure is the matter before the Panel in US – Steel and Aluminium Products , as the measure at 
issue. The measures at issue in the present proceedings are the measures in the form of additional 
duties taken by the respondent. It would be permissible, but not necessary, for this Panel to find as 
a preliminary matter that the US measures ar e safeguards.  
V. WITH  REGARD TO THE RE -BALANCING MEASURES AT ISSUE  
25. In order to determine whether or not a measure falls within Article 8.2 , a panel must make 
an objective assessment of all the facts and evidence. Just as there are certain objective, co nstituent 
features of safeguard measures, there are also certain objective elements which determine whether 
a measure falls within Article 8.2.  
26. In the European Union 's view, there are two such elements. The first is the suspension of the 
application o f concessions or other obligations under the GATT 1994; the second is the absence of 
a unilateral measure by the safeguard -imposing Member, or of an agreement on adequate means 
of trade compensation, designed to and capable of maintaining a substantially e quivalent level of 
concessions.  
27. The European Union notes that it is the very purpose of Article 8.2 to enable affected exporting 
Members to rebalance (i.e. maintain substantial equivalence) without waiting for a multilateral 
determination that the unde rlying measure is a safeguard. Article 8.2 foresees that suspension must 
take place within strict deadlines shortly after the application of the underlying safeguard measure. WT/DS558/R/Add.1  
 
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  Moreover, under certain circumstances (as outlined in Article 8.3) the right of s uspension can even 
be exercised  immediately. If those Members, faced with a safeguard measure that is mislabelled by 
the adopting Member in a self -serving manner, had to wait for a multilateral finding that the measure 
is indeed a safeguard, they would be effectively deprived of their rights under Articles 8.2 and 8.3.  
28. Neither the decision -making rules of the CTG or the GC, nor the requirements of Article 8.2 
concerning the absence of disapproval by the CTG, have any bearing whatsoever on the question o f 
whether or not Article 8.2 applies, i.e. whether the measure can properly be considered a rebalancing 
measure. However it is to be interpreted, the requirement of the absence of a disapproval is no more 
than an obligation for the rebalancing Member.  
29. The existence of "doubt" about whether the underlying measure is a safeguard cannot prevent 
Members from exercising their rights under Article 8.2. To require absolute certainty would mean in 
effect that, whenever the adopting Member chooses not to charact erise the measure as a safeguard, 
rebalancing would be impossible. Moreover, as we have learned in Indonesia – Iron or Steel 
Products , a measure may not be a safeguard even where both Members agree that it is a safeguard . 
Thus, there can be "doubt" even in  the face of agreement among the Members involved.  
30. Both for the underlying safeguard measure and for the rebalancing measure, the assessment 
has to be objective, i.e. based on the objective characteristics of the measures as opposed to their 
unilatera l characterisation by the adopting Member. An objective assessment also means that the 
legal characterisation of a measure cannot depend on the purely subjective intent of the adopting 
Member.  
31. To suspend a concession with respect to another Member or M embers means to suspend a 
promise, or commitment, to act or refrain from acting in a certain way towards that Member or 
Members. To take the example of duties, to suspend a concession in a Member 's Schedule means 
to suspend the "promise" (towards one or mo re other Members) not to exceed the bound duty rate.  
32. Whether the same Member actually exceeds the duty rate in question is a separate issue. It 
is possible, for example, that the Member suspends a concession but does not actually increase the 
relevant duty (or not yet). In this scenario, there would be a suspension, but there would not be any 
violation of Article II:1(b), because the bound duty would not have been exceeded.  
33. There is, however, one very important caveat, and a further distinction betw een suspensions 
and violations. A valid suspension, i.e. a suspension taken in compliance with the applicable 
provisions of the covered agreements, such as a WTO -consistent modification of a schedule under 
Article XXVIII of the GATT 1994, a WTO -consistent safeguard measure, or a WTO -consistent 
rebalancing measure, does not amount to or create any violation of the covered agreement, not 
even a prima facie violation which would then presumably need to be justified.  
VI. MEASURES  THAT ARE CONSISTENT WITH THE  AGREEMENT ON SAFEG UARDS AND 
ARTICLE XIX OF THE GATT 1994 ARE NOT INCONSISTENT WITH ARTICLES  I:1, II:1(A) 
AND (B) OF THE GATT 1994  
34. The treaty terms "to suspend the obligation in whole or in part or to withdraw or modify the 
concession" in Article XIX:1(a) of the GATT 1994 do not mean that the original obligation remains 
unchanged, but is "violated", with such "violation" being "justified" by Article XIX:1(a). Rather, as 
the treaty expressly provides, they mean that the original obligation is suspen ded or altered. 
Suspending an obligation is not the same thing as violating an obligation (which could then possibly 
be justified).  
35. The relationship between Article XIX of the GATT 1994 and Articles I and II of the GATT 1994 
is analogous to the relatio nship between, for example: (i) Articles I, II and VI of the GATT 1994; 
and (ii) Article IV of the GATT 1994 and other provisions of that treaty.  
36. If the Panel finds (as it should) that Article 8.2 applies, it can no longer make any findings of 
WTO-inconsistency, either under the specific requirements of Article 8.2 of the Agreement on 
Safeguards (since the US has not made any claim under that provision), or under Articles I and II 
of the GATT 1994 (since a measure that is consistent, or even presumed c onsistent, with the WT/DS558/R/Add.1  
 
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  controlling provision of Article 8.2 of the Agreement on Safeguards cannot be inconsistent with 
Articles I and II of the GATT 1994).  
VII. PROPOSAL  ON INTER -PANEL COORDINATION  
37. The European Union considers that there is nothing in the  DSU that would prevent a form of 
collaboration among the panels in the Steel and Aluminium  disputes and those in the Additional 
Duties  disputes. This concerns, in particular, certain exchanges of views and harmonization of 
timetables.  
38. Importantly, the re is no contagious risk to future disputes, given the particular and indeed 
unique factual and legal setting of these cases, which are two sides of the same coin.  
39. Article 13 of the DSU, among others, may provide a legal basis for such a collaboration,  as it 
provides that "panels may seek information from any relevant source". Such a cooperation would 
be in line with the objectives of the dispute settlement system to ensure security and predictability 
of the multilateral trading system (Article 3.2 of t he DSU), and to secure a positive solution to the 
disputes (Article 3.7 of the DSU).  
40. Indeed, the fact that panels can, and should, exchange views when deciding an identical or 
closely related matter, is also supported by Rule 4(3) of the Working Proced ures for 
Appellate  Review. Under that provision, members of an Appellate Body division shall exchange views 
with the other Members before finalizing their report. Under Rule 4(5), this does not interfere with 
the division 's full authority and freedom to he ar and decide the appeal.  
41. If such an exchange of views is consistent with the DSU, then there would be no reason to 
hold otherwise for an exchange of views between two panels dealing with the same or closely related 
matter. This is especially so in th e unique circumstances of this case, where panels are addressing 
the same alleged safeguard measures, either as a measure at issue ( US – Steel and Aluminium 
Products ) or as the underlying measure which is rebalanced by the measure at issue (the Additional 
Duties  disputes).  
42. In the same vein, the fact that the Chairman of the four panels in the Additional Duties 
disputes is the same person speaks to the same reasoning, perfectly justified in the particular 
circumstances of these disputes. While Article 9. 3 of the DSU is about co -complainants, the EU 
considers that a similar approach is warranted in similar scenarios, and in specific circumstances 
such the present one.  
43. Such cooperation between panels, in the form of a preliminary exchange of views, is aimed at 
ensuring that each of the panels makes an objective assessment of the matter before it, of the facts 
of the cases, including of the applicability of and conformity with the covered agreements, as 
required by Article 11 of the DSU.  
44. This is particularly important in the context in which the US is blocking the appointment of 
new Appellate Body members, and thus of the high possibility that when all these cases will be 
decided there will be no appeal adjudicator to ensure coherence. Thus,  it is even more important, in 
order to ensure security and predictability to the multilateral trading system (Article 3.2 of the DSU), 
that panels talk to each other in order to avoid divergent results and fragmentation.  
45. The confidentiality obligation  in Article 14 of the DSU does not prevent the form of 
collaboration that the European Union has suggested. While panel deliberations are confidential, the 
European Union sees this cooperative process, for example, in the form of a meeting or meetings 
between all panellists in the Steel and Aluminium disputes and in the Additional Duties disputes. 
Such exchanges of views or concertation would be preliminary, and external to the panel 
deliberations. Thus, they would not breach the duty of confidentiality in Article 14.1 of the DSU.  
46. The European Union considers that it is logical that the Steel and Aluminium panels, which 
were first invested with the US safeguard measures as the measures at issue before them, should 
decide first on that matter and only the n the Additional Duties panels should decide on the 
rebalancing measures.  WT/DS558/R/Add.1  
 
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  ANNEX  C-2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN   
I. INTRODUCTION  
1. Japan welcomes this opportunity to present its views as a third party in this dispute . Japan 
has a systemic interest in ensuring the proper and consistent interpretation  of the WTO Agreements, 
including Article XIX of the General Agreement on Tariffs and T rade ( "GATT ") 1994, as well as the 
Agreement on Safeguards.  
II. SCOPE OF ARTICLE XIX OF THE GATT 1994 AND THE AGREEMENT ON SAFEGUARDS  
2. Japan views that, pursuant to the express language of Article 11 of the Understanding on 
Rules and Procedures Governin g the Settlement of Disputes ( "DSU"), a panel must conduct an 
independent and objective assessment of whether a WTO agreement applies to a measure at issue, 
regardless of the alleged characterization of the measure by the Member imposing it.  The 
Appellate  Body recently confirmed this interpretation of Article 11, stating that "a panel is not only 
entitled, but indeed required, under Article 11 of the DSU to carry out an independent and objective 
assessment of the applicability of the provisions of the cover ed agreements invoked by a complainant 
as the basis for its claims, regardless of whether  such applicability has been disputed by the parties 
to the dispute ".1 As such, a Member imposing a measure does not alone determine whether the 
Agreement on Safeguar ds applies to that measure; instead, this is a legal question that a panel must 
answer based on its objective assessment.  
3. Given that there is no clear textual definition of a "safeguard measure " in the text of the 
relevant WTO Agreements, it would not be appropriate for panels or the Appellate Body to draft a 
blanket definition of safeguard measures within the meaning of the Agreement on Safeguards.  This 
conclusion is consistent with the Appellate Body 's findings in Indonesia – Iron or Steel Products  that 
"whether a particular measure constitutes a safeguard measure for purposes of WTO law can be 
determined only on a case -by-case basis ".2 Thus, the role of the panel in this dispute is to make a 
case-specific, objective assessment of whether t he particular measures at issue is subject to the 
disciplines of the Agreement on Safeguards.  This assessment should be conducted through , inter 
alia, an interpretation of "safeguard measures " based on the ordinary meaning of the term in its 
context, and i n light of the object and purpose of the relevant agreements3 (i.e., the Agreement on 
Safeguards, the GATT 1994 and the other WTO Agreements).  
4. Regarding the factors that are "relevant " for a panel 's consideration of whether a measure is 
a safeguard mea sure, Article 1 of the Agreement on Safeguards, which refers to GATT Article XIX, 
anticipates certain types of actions ( i.e., suspension, withdrawal, or modification of the obligation or 
concession) implemented for a certain purpose ( i.e., to prevent or re medy serious injury to domestic 
producers).  Thus, the key features of a safeguard measure include (1) an action  "to suspend the 
obligation … or to withdraw or modify the concession ", and (2) a purpose  "to prevent or remedy 
serious injury to domestic produc ers". Japan 's suggested approach is consistent with the 
Appellate  Body's findings in Indonesia – Iron or Steel Products , which listed two factors – one action 
and one purpose – that are necessary to find a safeguard measure.4  
5. On the other hand, Japan disagrees with the views of some Members that this statement 
contains the sole "definition " of a safeguard measure or represents "settled case law " on the 
applicability of the Agreement on Safeguards.   
6. First, the Appellate Body in Indonesia – Iron or Steel Products  categorized the action and 
purpose factors as necessary , but not sufficient , to find a given measure to constitute a safeguard 
 
1 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.33. (emphasis added)  
2 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.57.  
3 Article 31 of the Vienna Convention on the Law of Treaties.  
4 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  WT/DS558/R/Add.1  
 
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  measure.  The Appellate Body did not attempt to propose a comprehensive definition of a safe guard 
measure or ultimately to decide the scope of the Agreement on Safeguards.   
7. Second , treating the action and purpose features raised by the Appellate Body as a 
comprehensive definition of the applicability of the Agreement on Safeguards could lead t o 
unreasonable outcomes.  For example, an anti -dumping measure is usually imposed to protect the 
domestic industry in the form of duties in excess of a Member 's tariff concessions.  Treating these 
two factors as the comprehensive definition of a safeguard me asure could therefore result in treating 
all anti -dumping duties as "safeguards ". 
8. In Japan 's view, significant evidentiary value must also be ascribed to some important factors, 
such as the status of fulfillment of the notification requirements under Ar ticle 12 of the Agreement 
on Safeguards.  The Appellate Body also refers to "relevant notifications to the WTO Committee on 
Safeguards " as part of "all relevant factors ", to which due consideration should be given when 
determining the applicability of the A greement on Safeguards.5 
9. The object and purpose of the Agreement on Safeguards are described in its preamble, and 
include "the need to clarify and reinforce the disciplines of GATT 1994 … to re-establish multilateral 
control over safeguards and eliminate measures that escape such control ".6 Japan maintains that, 
to achieve this objective, a panel 's assessment of a measure must prevent a Member from "escaping " 
the "multilateral control " disciplines of the GATT 1994 and the Agreement on Safeguards  through 
the Member 's unilateral characterization of the measure in question as something other than a 
"safeguard measure ".  
10. In this regard, the Appellate Body in Indonesia – Iron or Steel Products  stated that, in 
determining whether a measure constitu tes a safeguard measure, "a panel is called upon to assess 
the design, structure, and expected operation of the measure as a whole ", and "must identify all the 
aspects of the measure that may have a bearing on its legal characterization [and] recognize whi ch 
of those aspects are the most central to that measure ".7 It continued that "a panel should evaluate 
and give due consideration to all relevant factors, including the manner in which the measure is 
characterized under the domestic law of the Member conc erned, the domestic procedures that led 
to the adoption of the measure, and any relevant notifications to the WTO Committee on 
Safeguards ", adding that "no one such factor is, in and of itself, dispositive of the question of whether 
the measure constitutes  a safeguard measure within the meaning of Article 1 of the Agreement on 
Safeguards ".8 The Appellate Body in fact agreed with the panel in that dispute that the measure did 
not become a covered safeguard measure simply because the Member in question follo wed its 
domestic procedures on safeguards and notified the measure as such.  Clearly, other considerations 
are as important or more important than a Member 's own characterization of the measure.  
11. In Japan 's view, the Appellate Body 's approach, emphasizi ng "due consideration to all relevant 
factors ", is generally consistent with the object and purpose of the Agreement on Safeguards 
because it would not allow a measure at issue to "escape " the WTO agreements ' "multilateral 
control ". In other words, a panel 's comprehensive evaluation of a measure would ensure that the 
Member imposing it could not avoid the Agreement on Safeguards ' disciplines by merely 
characterizing the measure as something other than a safeguard measure or not invoking the 
Agreement o n Safeguards in dispute settlement.  
12. Therefore, the Panel 's assessment of whether the Agreement on Safeguards applies in this 
dispute must examine the design, structure, and expected operation of the measure at issue as a 
whole and must give due consid eration to all relevant factors.  From this perspective, considering the 
various factors raised by the Parties in these disputes, Japan sees no reason to exclude the 
Section  232 measures at issue from the scope of the Agreement on Safeguards simply because the 
United States does not characterize the measures as "safeguard measures ".  
13. Finally, Article XXVIII, entitled "Modification of Schedules ", is another GATT 1994 provision 
that provides important context for the proper approach to and interpretation o f Article XIX of the 
GATT 1994.  First, an Article XXVIII modification must be conducted "on the first day of each 
 
5 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60. (emphasis added)  
6 Emphasis added.  
7 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60. (emp hasis added)  
8 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60. (footnote omitted)  WT/DS558/R/Add.1  
 
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  three -year period, the first period beginning on 1 January 1958 (or on the first day of any other 
period that may be specified by the CONTRACT ING PARTIES by two -thirds of the votes cast) ", and 
at least "by negotiation " with "contracting parties primarily concerned ". The measure at issue in this 
dispute has not satisfied these procedural requirements.   
14. Second, in contrast to Article XIX:1, Ar ticle XXVIII does not impose any substantive conditions 
for the modification or withdrawal of concessions, such as serious injury caused by imports to the 
relevant domestic industry or the necessity of protecting the relevant domestic industry.  It is 
essen tially a political process that allows Members to re -negotiate their commitments.  Therefore, 
Article XXVIII addresses a similar action  as that in Article XIX, but the process is not otherwise 
characterized by its purpose . The process under Article XXVIII t herefore provides the broadest 
possible legitimate manner in which a Member may seek to  withdraw or modify a GATT concession.  
In the context of the Section 232 measures at issue, however, the United States has conducted no 
prior negotiations under Article XXVIII.  In Japan 's view, this further confirms that the relevant 
enquiry will need to be to assess whether the Member has complied with Article XIX of the GATT  1994 
and the Agreement on Safeguards, rather than Article XXVIII.  
III. PANEL 'S TERMS OF REFERENCE  
15. The above issue – the scope of the Agreement on Safeguards – must be separated from the 
panel 's terms of reference. A panel 's terms of reference must be understood by reference to the 
panel request pursuant to Article 6.2 of the DSU – "identi fy the specific measures at issue and 
provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly ". 
It is common for Members to raise certain defenses, such as those under Article XX of the 
GATT  1994, and these wil l be examined by panels even though they were not mentioned in the panel 
request.  
16. The recent Appellate Body decision confirmed that "the use of the phrase 'how or why '" by the 
Appellate Body in some cases "does not imply a new and different legal stan dard for complying with 
the requirements of Article 6.2 of the DSU ", and that "the applicable legal standard " is the text of 
Article 6.2 of the DSU9, the objective of which is to: (i) delimit the scope of the panel 's jurisdiction; 
and (ii) ensure due proc ess for the respondent and third parties. 10In addition, "[t]he sufficiency of 
a panel request under this standard is to be assessed on a case -by-case basis ". 11 
 
 
 
9 Appellate Body Report, Korea –Pneumatic Valves , para. 5.7  
10 Ibid, para. 5.8.  
11 Ibid, para. 5.7.  WT/DS558/R/Add.1  
 
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  ANNEX  C-3 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NEW ZEALAND  
1. New Zealand 's participation in the current dispute reflects its systemic interest in the issues 
raised, in particular, the role of notifications under the Safeguards Agreement, and the role of the 
Panel in determining the legal characterisation of measures in issue.   
2. A measure does not need to be notified under Article  12 of the Safeguards Agreement in order 
to constitute a safeguard measure.  In Indonesia – Iron or Steel Products the Appellate Body 
distinguished between those factors that determine whether a measure is in fact  a safeguard 
measure, and those factors that  will determine whether it is a WTO consistent  safeguard measure.1 
Notification falls into this latter category.  It is a procedural requirement directed at maintaining 
transparency around the safeguard process, and ensuring that affected Members are given  
opportunity to engage.  A failure to notify a safeguard measure will be inconsistent with the 
obligations set down in Article XIX GATT and Article 12 of the Safeguards Agreement.  It is not, 
however, determinative of the legal characterisation of the measur e, or the applicability of the 
safeguards regime.   
3. Whether a measure is correctly to be characterised as a safeguard is a matter to be determined 
objectively by a Panel.  Article 11 of the DSU requires a panel to carry out an objective assessment 
of the mat ter before it, including carrying out an assessment of the legal characterisation of the 
measures in issue.2 Where a dispute exists between Members, it can be expected that they may 
have differing views on the legal characterisation of relevant measures u nder the covered 
agreements.  It is for a panel to objectively determine these matters, in accordance with its 
obligations under Article 11.  While the parties ' own views on the proper legal characterisation of a 
measure may assist a panel in carrying out th is exercise, they are not determinative.  
4. In concluding – the giving of notice under Article 12 of the Safeguards Agreement is not an 
essential step that must be taken for a measure to constitute a safeguard.  Where a dispute exists 
between Members, it is f or a panel to reach an outcome in accordance with its obligations under 
Article 11 DSU. This is to be determined objectively, on a case by case basis, and in light of all 
relevant facts and circumstances.  
 
 
 
1 Appellate Body Report, Indonesia – Iron or Steel Products , at para 5.57.  
2 Appellate Body Report, Indonesia – Iron or Steel Products , at para 5.33.  WT/DS558/R/Add.1  
 
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  ANNEX  C-4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY  
I. LEGAL STANDARD GOVERNING THE APPLICABILITY OF WTO OBLIGATIONS  
1. It is well -established that municipal law classifications are not determinative of legal questions 
raised in WTO dispute settlement proceedings, in particular how a measure is characterised under 
WTO law, including which WTO obligations apply to a measure.  As the Appellate Body has explained, 
"the manner in which the municipal law of a WTO Member classifies an item cannot, in itself, be 
determinative of the interpretation of provisions of the WTO cover ed agreements ".1 Instead, the 
characterisation of a measure under WTO law must be based on the measure 's "content and 
substance ", and "not merely on its form or nomenclature ".2 
 
2. It is not uncommon for a respondent to assert, based on domestic law classif ications, that a 
measure is not subject to particular WTO obligations.  In that event, as the panel in 
Dominican  Republic – Safeguard Measures has explained, "the determination on applicability [of the 
provisions of the covered agreements to the challenged measures] must be a prior step to the 
analysis of whether the impugned measures are consistent with the obligations contained in the 
cited provision[s] ".3  
 
3. This "prior step " of determining the applicability of the relevant covered agreements is one 
frequently faced by panels and the Appellate Body.4 A Member 's characterisation of the measure at 
issue is not determinative of the applicable WTO obligations.  Instead, the assess ment is based on 
the content and substance of the measure, clarified according to: the text and structure of the 
measure; the surrounding regulatory context; the domestic legal framework in which the measure 
is adopted; and the design and application of th e measure.   
 
4. In sum, if a measure is, in "content and substance ", a "safeguard measure ", a Member cannot 
exclude the application of the Safeguards Agreement by characterising the measure as something 
other than a "safeguard measure " under its own domestic law. Otherwise, the Member 's own 
characterisation of the measure would be determinative of the WTO obligations applicable to the 
measure.  In short, a Member would be able to decide for itself which WTO obligations apply to its 
measures.   
 
5. Instead, a panel must decide whether a covered agreement – here the Safeguards Agreement 
– applies to a measure using the substantive criteria in WTO law.  First, a panel must ascertain the 
legal standard in the agreement governing the applicability of the agreement.  Second , a panel must 
assess the facts, in particular the nature and character of the measures at issue, and apply the legal 
standard to the relevant facts.  
 
II. LEGAL STANDARD GOVERNING THE APPLICABILITY OF THE SAFEGUARDS 
AGREEMENT  
6. Article 1 of the Safeguards A greement provides that "this Agreement establishes rules for the 
application of the safeguard measures which shall be understood to mean those provided for in 
Article XIX of the GATT 1994 ". Norway, therefore, turns first to Article XIX to establish the sco pe of 
application of the Safeguards Agreement. As the Appellate Body observed in Indonesia – Iron or 
Steel Products , Article XIX is not styled as a definitional provision: "Article XIX:1(a) does not 
expressly define the scope of measures that fall under th e WTO safeguard disciplines ".5 Instead, 
 
1 Appellate Body Reports, US – Softwood Lumber IV , para. 65 and China – Auto Parts , footnote 244.  
2 Appellate Body Report, US – Continued Zeroing , footnote 87.  
3 Panel Report, Dominican Republic – Safeguard Measures , para. 7.58, referring to Appellate Body 
Reports, China – Auto Parts , para. 139; Canada – Autos , para. 151; and US – Shrimp , para. 119.  
4 Appellate Body Report, US – 1916 Act , para. 130; Appellate Body Report, Australia – Apples , 
para. 173; Appellate Body Reports, EC – Seal Products , para. 5.19, citing Appellate Body Report, 
EC – Asbestos , para. 72; Panel Report, Thailand – Cigarettes (Philippines) (Philippines – Article 21.5) , 
paras.  7.673-7.683.  
5 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.57.  WT/DS558/R/Add.1  
 
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  Article XIX serves to impose obligations on the adoption of safeguard measures.  These obligations 
are considerably developed in the Safeguards Agreement.  
 
7. Given the nature of Article XIX, the Appellate Body caution ed against conflating the factors 
that properly define a safeguard measure (and, hence, the applicability of the Safeguards 
Agreement), with those that govern the WTO -consistency of such measures. A measure may be 
properly regarded as a safeguard, even tho ugh it does not meet the WTO obligations governing 
safeguard measures.  If this were not the case, a measure could, by definition, be subject to 
WTO safeguard obligations solely if it complied with those obligations and, correspondingly, there 
could, by def inition, never be a WTO -inconsistent safeguard measure.  The Appellate Body rightly 
rejected this approach.  
 
8. Although the provisions of Article XIX are not definitional, the Appellate Body found that they 
shed light on the character of a safeguard measure.  The Appellate Body found that the types of 
measures "provided for " in Article XIX are those "designed to secure a specific objective , namely 
preventing or remedying serious injury to the Member 's domestic industry ".6 To be a safeguard 
measure, therefore, a challenged measure must have "a demonstrable link to the objective of 
preventing or remedying injury ".7 
 
9. Connected to this objective, the Appellate Body also identified two "constituent features " of a 
"safeguard mea sure": (1) it must suspend or withdraw a GATT 1994 obligation or tariff concession; 
and (2) it must be designed to prevent or remedy serious injury to a domestic industry caused or 
threatened by increased imports.8 
 
10. The Appellate Body found that its view that the application of the Safeguards Agreement turns 
on the "objective " of the measure was "buttressed " by the preamble to the Agreement, which 
stresses "the importance of structural adjustment ", and reiterates "the need to enhance rather than 
limit comp etition in international markets ".9 
 
11. Article 12.1 of the Safeguards Agreement further confirms the Appellate Body 's interpretation.  
This provision identifies certain acts, by an importing Member, that trigger the application of 
notification obligations in  the Safeguards Agreement.  These include the following acts: (1) "initiating 
an investigatory process relating to serious injury or threat thereof " to a domestic industry, "and the 
reasons for it "; and (2) "making a finding of serious injury of threat ther eof caused by increased 
imports ". These notification obligations underscore the critical role in safeguards actions of a finding 
of serious injury to a domestic industry, caused by imports.  
 
12. The US argues that the Safeguards Agreement applies to a measure only if the importing 
Member formally invokes Article XIX of the GATT 1994. In setting out its incorrect interpretation  of 
the term "safeguard measure" under Article 1, the US essentially misunderstands the difference 
between three distinct questions: (i) whether a measure is a WTO safeguard; (ii) whether the 
importing Member has the right to apply a safeguard measure; and (iii) whether the measures are 
applied in a manner consistent with the Safeguards Agreement.  
 
13. Driven by its misunderstanding of the fund amental distinction between these three questions, 
the US refers to inapplicable jurisprudence in support of its arguments. The US notes,  for example, 
the Appellate Body 's statement that: "[n]otification under Article XIX … is 'a necessary prerequisite 
to establishing a right to apply a safeguard measure '".10 The US relies on the Appellate Body's 
statement to conclude erroneously that "[w]ithout an invocation of that right [through notification], 
a measure does not qualify as a safeguard under the WTO Agreement ".11  
 
14. However, the Appellate Body 's statement simply means that a Member must notify a 
safeguard measure in order for the safeguard measure to be consistent with the Safeguards 
Agreement. The Appellate Body is not saying that the Member must notify a measure as  a safeguard 
in order for the Safeguards Agreement to apply  to that measure. Rather, as the Appellate Body 
explained in Indonesia – Iron or Steel Products , the applicability of the Agreement must be 
 
6 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.56.  
7 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.56.  
8 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.   
9 Appellate Body Report, Indonesia – Iron or Steel Products , footnote 189.  
10 The US' first written submission, para. 77.  
11 The US' first written submission, para. 79.  WT/DS558/R/Add.1  
 
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  objectively deter mined, separately from the question whether a measure is consistent with the 
substantive and procedural conditions in Article XIX of the GATT 1994 and the Safeguards 
Agreement.12  
 
15. The US thus draws an incorrect distinction between the question of whether  the Safeguards  
Agreement applies, on the one hand, and the question of whether that safeguard measure has been 
applied consistently with various requirements, on the other hand.  
 
III. ARTICLE XIX OF THE GATT 1994 AND THE SAFEGUARDS AGREEMENT DO NOT 
OPERAT E AS AN "AFFIRMATIVE DEFENSE "  
16. The US seems to treat Article XIX as an "affirmative defense ", which applies to "justify " a 
"violation " of the GATT, in two possible respects. First, Article XIX can be invoked by a Member 
imposing a measure ( "importing Member "), to justify a violation of the GATT 1994; and second, 
Article XIX can be invoked by a Member imposing retaliatory measures in resp onse ( "retaliating 
Member "), i.e., to justify retaliation measures that would otherwise violate the GATT 1994. However, 
in both instances, the US argues that, for the "affirmative defense " to be available, the importing 
Member must have formally invoked Ar ticle XIX, when imposing its measure in the first place. If it 
does not do so, then neither the importing Member, nor the retaliating Member, can rely on 
Article  XIX to justify GATT violations.  
 
17. Norway stresses that Article XIX does not operate as an "affirmative defense ". It should be 
recalled that the term "affirmative defense " is typically used to describe provisions like Article XX, 
i.e., measures which are invoked by a respondent in order to justify a violation of the GATT 1994. 
Norway points out that  Article XIX and the Safeguards Agreement, by contrast, do not operate in 
this way. Rather, they establish distinct obligations that apply when a Member wishes to take a 
safeguard measure.  Thus, if the importing Member imposes a safeguard consistent with t hose 
obligations, there is no violation of the GATT 1994. In this sense, Article XIX and the Safeguards 
Agreement operate in the same way as Article VI; they contain their own specific set of obligations 
that, when particular substantive and procedural con ditions are met, displace GATT obligations which 
would otherwise be applicable.  
 
18. The applicability of the Safeguards Agreement does not depend on the importing Member 's 
invocation, as it would, for example, under Article XX. Rather, the applicability of t he Safeguards 
Agreement is subject to objective determination. The question is whether the measure satisfies the 
"constituent features " of a safeguard measure, as set out in Article 1 of the Safeguards Agreement.   
 
IV. INTER -PANEL COORDINATION  
19. The separate  offensive and defensive dispute settlement proceedings originating from the US ' 
additional steel and aluminium tariffs are tightly interlinked. They are based on the same measures 
imposed by the US, and the legal threshold questions to solve the disputes are identical. There is no 
procedural obligation for the individual Panels to avoid contradiction. However, in line with the role 
of the Panels in providing security and predictability to the multilateral trading system as mandated 
in the DSU Article 3.2, general legal reasoning would require coherence between conclusions 
spurring from identical issues. We presume that the efforts made to provide for the same Panel 
Members in the offensive disputes and the same Panel Chair in the defensive disputes reflect this 
need for coherence.  
 
20. To achieve the desired coherence, it appears logical that the panels should take into 
consideration the sequencing of the different panel deliberations and reports. The offensive panels 
were established first, and thus, the Panel s in the defensive disputes should be conscious about the 
Panels´ conclusions in the offensive disputes. This implies a certain interaction between the Panels. 
Norway is of the opinion that there is no need to search for a specific legal basis for such int eraction; 
the question is rather whether the DSU precludes it - which does not appear to be the case. 
Contrastingly, Article 13 of the DSU does indeed reflect the need for panels, as described above, to 
obtain relevant information to ensure coherent legal analysis. Generally, interaction between the 
panels would ensure transparency and due process for the parties.   
 
 
12 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.57.  WT/DS558/R/Add.1  
 
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  21. The confidentiality obligation set out in Article 14 of the DSU limits, but does not preclude 
consultations between the Panels. This provision requires the panel deliberations to be confidential, 
but consultations may be conducted in a limited way, i. e. through reporting of preliminary 
conclusions and the reasoning behind them. This limited interaction would not reasonably qualify as 
"panel deli berations ".  
 
 WT/DS558/R/Add.1  
 
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  ANNEX  C-5 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE RUSSIAN FEDERATION  
I. Introduction  
Russia welcomes this opportunity to present its views as a third party in this dispute.  
Without prejudice to Russia 's position that it is up to a complainant to formulate the measures 
at issue, iden tify the legal basis of complaint in its panel request and to choose the sequence of its 
argumentation as it deems more appropriate, Russia submits that in the dispute before this Panel 
the United States has articulated the improper legal basis for its cla ims. Thus, the United States 
attempts to misguide the Panel as to the relevant legal and factual background of the dispute.  
The United States appears to relegate China's exercise of essential right under Article 8.2 of 
the Agreement on Safeguards to cou nter the disruptive effects of the United States ' safeguards on 
their bilateral trade by not raising concerns about the consistency of the resulted measures with 
Article 8.2 and by merely asserting that China's measures violate Articles I and II of the General 
Agreement on Tariffs and Trade 1994 ( "GATT 1994").  
With that in mind, Russia addresses particular aspects of this dispute relating to why it is 
important for a complainant to present the problem underlying the dispute in its entirety, as well as 
to the interpretation of Article XIX of the GATT 1994 and the Agreement on Safeguards.   
II. Order of analysis  
III. Terms of Reference   
This dispute presents not an ordinary situation. The complainant, being aware of the 
WT/DS558/R/Add.1  
 
- 62 - 
 
  
IV. Applicable Legal Standard  
First, Russia submits that being an emergency measure, a safeguard is not contingent upon 
formal invocation. There is no such obligation under the Agreement on Safeguards and Article XIX 
of the GATT 1994. Rather, a Member is obliged to notify the imposition of such a measure with a 
view of ensuring other Members ' right for preserving a substantiall y equivalent level of concessions.  
It is the treaty language of Article 8.2 of the Agreement on Safeguards that requires that 
suspension should not be disapproved. China decided to suspend its obligations, took certain 
procedural steps under Article 8 .2 including its notification to the Council for Trade in Goods and 
received no disapproval. Therefore, there is no question as to whether the suspension took place 
under Article 8.2 as it was authorized by the Council for Trade in Goods.  WT/DS558/R/Add.1  
 
- 63 - 
 
  
The fact that the United States has not notified its measures to the WTO pursuant to the 
Agreement on Safeguards is a procedural flaw of those measures that does not, however, affect in 
any way the substance of the measures and their qualification as safeguards. Si milarly, for example, 
a technical regulation that has not been properly notified to the TBT Committee does not become 
less of a technical regulation.  
In sum, notification per se  is not a constituent element, absent which a safeguard does not 
exist. Not ification is a legal requirement that should be met among other requirements for such a 
measure to be WTO -consistent. A measure is a safeguard when it presents two constituent features, 
as explained by the Appellate Body in Indonesia - Iron or Steel Produc ts,1 and notification is not one 
of them.  
Second,  by assessing the design, structure and expected operation of the measure at issue, 
the Panel should take into consideration that:  
(i) no agreement has been reached by China  and the United States in the sense of Article 8.1 
of the Agreement on Safeguards;  
(ii) China has suspended substantially equivalent concessions or other obligations under 
GATT  1994 to the trade of the United States;  
(iii) China followed all the procedural steps set out in Article 8 of the Agreement on Safeguards 
while imposing the measu res, including the filing of the notification to the Council for Trade in 
Goods;  
(iv) the measures are designed and expected to operate for the purposes of compensation for 
the adverse effects of the United States ' measures on China 's trade;  
(v) the Counci l for Trade in Goods did not disapprove the suspension.  
In Russia 's view, there is more than enough evidence on the record to conclude that China 
suspended its obligations under Article 8.2 of the Agreement on Safeguards.  
Third, Russia submits that  Article 8.2 of the Agreement on Safeguards cannot be treated as 
an affirmative defense by the Panel as this provision's nature is that of a positive rule. The Agreement 
on Safeguards does not constitute an exception to GATT 1994 obligations. As regards th e 
particularities of the present dispute, Article 8.2 of the Agreement on Safeguards sets forth 
conditions, i.e. positive obligations, under which a WTO Member may lawfully suspend its obligations 
under the GATT 1994 (not justify violation). Such rules inc lude, inter alia , procedural requirements, 
for example, to submit a notification to the Council of Trade and Goods, and a material obligation 
that the application of concessions or other obligations under GATT 1994 shall be substantially 
equivalent to the suspension made by the initial safeguard measure against which such suspension 
is made. Thus, Article 8.2 of the Agreement on Safeguards contains a clear list of positive obligations 
and requirements for the suspension of concessions or other obligations u nder GATT 1994. These 
provisions cannot be qualified as exceptions from obligations.  
In sum, since there is no obligation that could be violated (rather, these obligations were 
suspended), the Panel has neither legal basis to rule on the consistency o r inconsistency of the 
measures at issue with Articles I and II of the GATT 1994, nor legal basis to treat Article 8.2 of the 
Agreement on Safeguards as an affirmative defense.  
V. The relationship between ds 558 and ds 544 disputes   
Russia 's principal position is that the Panel in this dispute should assess the matter before it 
on its own merits as required by Article 11 of the DSU. The Panel should also act strictly within its 
terms of reference under Article 7.1 of the DSU. There are also the followin g nuances the Panel 
should take into account.   
On the one hand, Russia's position is that the existence of an underlying measure is not a 
threshold issue for the determination of the applicability of Article 8.2 of the Agreement on 
Safeguards. For the resolution of the dispute before this Panel the leg al characterization of whether 
the United States' measures constitute a safeguard measure or not is not required nor is contested 
 
1 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  WT/DS558/R/Add.1  
 
- 64 - 
 
  as a part of issue of potential inconsistency of China 's suspension under Article 8.2 of the Agreement 
on Safeguards as well a s China 's suspension itself. It is undisputed fact that the United States applies 
the import duties in respect of the goods originating from China, as well as some other countries, 
beyond the rate established in the United States ' Schedule. Moreover, China  in very clear terms 
adopted its measures under Article 8.2 of the Agreement on Safeguards. Therefore, the Panel should 
treat suspension under Article 8.2 of the Agreement on Safeguards as a matter of fact.  
At the same time, the issues arising in the present Panel proceedings may overlap to a certain 
extent with those raised in other disputes brought by certain WTO Members against the 
United  States, including the one initiated by China ( United States – Certain Measures on Steel and 
Aluminium Products ). This overlap would arise in respect of the proper legal characterization of the 
United States ' measures should the Panel here decide that it needs to rule on legal characterization 
of the United States ' measures regardless of Russia's position that the ex istence of an underlying 
measure is not a threshold issue for the determination of the applicability of Article 8.2 of the 
Agreement on Safeguards.  
Taking into account that the core issue of dispute DS544 is whether the United States ' 
measures constit ute safeguard measures and whether certain GATT 1994 and Agreement on 
Safeguards ' provisions were violated by such United States ' measures, issue of whether the United 
States' Section 232 duties constitute  safeguard measures is a question of law in that di spute as it 
requires analyses of consistency or consistency with the requirements of the claimed treaty 
provisions.  
In this regard, Russia reminds that the ultimate goal of the Panel is to make such findings "as 
will assist the DSB in making the recom mendations or in giving the rulings provided for in the covered 
agreements". The achievement of this goal will be seriously prejudiced should the Panel engage in 
parallel examination of the underlying safeguard measures.  
Therefore, should the Panel re cognize that the question as to "whether the US safeguard 
measures on imports of aluminium and steel exist" is a question of law in this dispute, the Panel 
would have to follow the DS544 panel's lead insofar as the issue is the proper qualification of the 
United States ' measures.  
 
 WT/DS558/R/Add.1  
 
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  ANNEX  C-6 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SWITZERLAND  
I. INTRODUCTION  
1. Switzerland exercises its right to participate as a third party in this case  because of its systemic 
interest in the correct and consistent interpretation and application of Ar ticle XIX of the General 
Agreement on Tariffs and Trade (the GATT 1994) and the Agreement on Safeguards.  
2. Switzerland notes that the present dispute relates to measures taken by China in response to 
the import adjustment measures imposed by the United S tates on certain steel and aluminium 
products which are themselves being challenged in ongoing WTO proceedings by seven 
WTO Members including Switzerland (DS544, DS547, DS548, DS552, DS554, DS556 and DS564). 
As highlighted in its request for the establishm ent of a panel in DS556, Switzerland considers that 
the adjustment measures imposed by the United States on imports of certain steel and aluminium 
products constitute safeguard measures falling within the scope of the Agreement on Safeguards.   
II. GENERAL OBSERVATIONS   
3. Switzerland notes that Article XIX of the GATT 1994 establishes a right  to impose safeguard 
measures provided that certain conditions and circumstances listed in that provision and in the 
Agreement on Safeguards are satisfied.  These requir ements include inter alia the obligation for the 
Member proposing to apply a safeguard measure to endeavour, pursuant to Article 8.1 of the 
Agreement on Safeguards, to maintain a substantially equivalent level of concessions and other 
obligations to that e xisting under the GATT 1994 between it and the Members which would be 
affected by such a measure, in accordance with the provisions of paragraph 3 of Article 12 of the 
Agreement on Safeguards.   
4. In the absence of an agreement on adequate means of trade c ompensation for the adverse 
effects of the measure, the Agreement on Safeguards grants affected  Members the right to suspend 
the application of substantially equivalent concessions or other obligations under the GATT 1994. 
The exercise of this "right of su spension ", as referred to in Article 8.3 of the Agreement on 
Safeguards, is subject to the substantive and procedural requirements listed in Article XIX:3 (a) of 
the GATT 1994 and Article 8 of the Agreement on Safeguards. This right of suspension  of equiva lent 
concessions of other obligations under the GATT 1994 to the trade of the Member applying the 
safeguard measure  sets per definition Article I of the GATT 1994 aside, as well as Article II of the 
GATT 1994, if the measure is taken in the form of a duty in excess of those set forth in the Member 's 
Schedule.   
5. Thus, if a complainant considers that the respondent has failed to comply with the 
requirements applicable to Members taking rebalancing measures, it is for the complainant to make 
a prima facie  case of violation of Article XIX:3 (a) of the GATT 1994 and Article 8 of the Agreement 
on Safeguards. We note that the United States has not brought any such claims. Thus, if the Panel, 
making an objective assessment of the matter before it, as provided for under Article 11 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), finds that 
Article XIX of the GATT 1994 and the Agreement on Safeguards are applicable to the case at hand, 
it would thus need to reject the United St ates' claims, which are solely based on Article I and Article  II 
of the GATT 1994.  
6. Switzerland notes that, even though the United States ' panel request does not identify the 
Agreement on Safeguards, that agreement has been identified by China. The Pane l's terms of 
reference are "to examine, in the light of the relevant provisions cited by the parties to the dispute, 
the matter referred to the Dispute Settlement Body (DSB) by the United States in document 
"WT/DS558/2 ". Article 8 of the Agreement on Safeg uards is one of the provisions cited by China. 
The Panel is therefore required, in accordance with its terms of reference, to examine the matter 
referred to by the United States in light of that provision.  WT/DS558/R/Add.1  
 
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  III. OBSERVATIONS ON THE APPLICABILITY OF THE AGRE EMENT ON SAFEGUARDS  
a) Principles applicable to the legal characterization of the measures at issue  
7. Contrary to what the United States argues in this dispute, the legal characterisation of a 
measure for the purposes of determining the applicability of a relevant provision or agreement is 
not an issue to be decided unilaterally by the Member taking the me asure. It is an issue that must 
be determined objectively. In other words, the examination as to whether the provisions of the 
covered agreements are "applicable " and "relevant " to the case at hand is part of the panel 's duty 
to make an "objective assessme nt" pursuant to Article 11 of the DSU1. 
8. The Panel 's duty to conduct an "objective assessment of the matter " implies that the Panel is 
not bound by the way the Member concerned characterises the measure in its municipal law. Indeed, 
the description of t he measure by a party and "the label given to [it] under municipal law " "cannot 
be the end of [the Panel 's] analysis "2 and are "not dispositive " of the proper legal characterization 
of that measure under the covered agreements "3. As the Appellate Body em phasized, "a panel must 
assess the legal characterization for purposes of the applicability of the relevant agreement on the 
basis of the 'content and substance ' of the measure itself "4.  
9. The Appellate Body noted in Indonesia – Iron or Steel Products  that the manner in which the 
measure is characterized under domestic law, the domestic procedures that led to the adoption of 
the measure, and any relevant notifications to the WTO Committee on Safeguards are relevant 
factors in such an evaluation. However,  "no one such factor is, in and of itself, dispositive of the 
question of whether the measure constitutes a safeguard measure within the meaning of Article 1 
of the Agreement on Safeguards "5.  
10. Thus, the fact that a Member has not "invoked " its right t o implement a safeguard measure 
or has not notified the measure at issue to the WTO Committee on Safeguards does not mean that 
such measure is not a "safeguard measure " within the meaning of Article 1 of the Agreement on 
Safeguards. As emphasized above, th e proper legal characterization of a measure has to be based 
on the content and substance of the measure itself.  
b) Constituent features of a safeguard measure  
11. On the basis of the text of Article 1 of the Agreement on Safeguards and Article XIX of the 
GATT 1994 read in its context, in order to be a safeguard measure, a measure must present two 
constituent features, identified by the Appellate Body in Indonesia – Iron or Steel Products .  
12. First, the measure must suspend, in whole or in part, a GATT obligation or withdraw or modify 
a GATT concession. This follows from the text of Article XIX:1(a) of the GATT 1994 which refers to 
measures that suspend a GATT obligation and/or withdraw or modify a GATT concession.  
13. Second, the suspension, withdrawal, or modification in question must be designed to prevent 
or remedy serious injury to the Member 's domestic industry caused or threatened by increased 
imports of the subject product. As the Appellate Body emphasized, "[t]he use of the word 'to' […] 
indicates that the suspension of a GATT obligation or the withdrawal or modification of a GATT 
concession must be designed to pursue a specific objective, namely prevent ing or remedying serious 
injury to the Member 's domestic industry "6. Thus, the suspension of a GATT obligation or the 
withdrawal or modification of a GATT concession must have "a demonstrable link " to the objective 
of preventing or remedying injury7. 
14. Switzerland considers that additional features, such as the "extraordinary " character of the 
measure, its complementary relationship with trade remedy measures, its focus on the "import " of 
the products concerned or the fact that it has been adopted pursu ant to a procedure which is very 
similar to the procedure followed in safeguard investigations constitute additional elements 
 
1 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.31.  
2 Appellate Body Report, US – Large Civ il Aircraft (2nd Complaint) , para. 593.  
3 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.32.  
4 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.32.  
5 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  
6 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.56.  
7 Appellate Body Report, Indonesia – Iron or Steel products , para. 5.56.  WT/DS558/R/Add.1  
 
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  supporting its qualification as a "safeguard measure ", even though it is not labelled as a "safeguard 
measure " in the Member 's dom estic law.   
15. The assessment of whether a measure presents the features highlighted above, and thus 
constitutes a safeguard measure, is to be made on a case -by-case basis, taking into account the 
design, structure, and expected operation of the measure a s a whole. In order to make such an 
objective assessment, "a panel must identify all the aspects of the measure that may have a bearing 
on its legal characterization, recognize which of those aspects are the most central to that measure, 
and, thereby, prop erly determine the disciplines to which the measure is subject "8. 
16. Once it is established that the measure presents those constituent features, that measure falls 
within the scope of application of Article XIX of the GATT 1994 and the Agreement on Safe guards.  
c) Observations regarding the two -step test cited by the United States  
17. The United States submits that a two -step analysis is called for under Article XIX of the GATT: 
the right to apply a safeguard measure as a first step and whether that safe guard measure has been 
applied consistently with the various requirements as a second. The United States considers that the 
invocation of Article XIX is a condition precedent that must be established not only with respect to 
the second step but as an initi al matter9. The United States refers to the Appellate Body report in 
US – Line Pipe  in order to support its arguments.  
18. However, in that case, the Appellate Body has not examined the issue of the existence of a 
safeguard measure. The distinction made by the Appellate Body was between two inquiries relating 
to the consistency  of a safeguard measure with Article XIX of the GATT 1994 and the Agreement on 
Safeguards. Both inquiries related to obligations  laid down in Article XIX of the GATT 1994 and the 
Agreement on Safeguards, but each inquiry related to a different type of obligations: on the one 
hand, the obligations that must be satisfied in order for the Member to have the right to apply a 
safeguard measure and, on the other hand, the obligations relat ing to the extent of the safeguard 
measure.   
19. The issue of the existence of a safeguard measure must not be confused with the issue of 
whether such safeguard measure is consistent with the conditions and requirements laid down in 
Article XIX of the GATT  1994 and in the Agreement on Safeguards. As noted by the Appellate Body 
in Indonesia – Iron or Steel Products , "it would be improper to conflate factors pertaining to the 
legal characterization of a measure for purposes of determining the applicability  of the WTO 
safeguard disciplines with the substantive conditions and procedural requirements that determine 
the WTO -consistency  of a safeguard measure "10.  
20. The "right" to apply a safeguard measure refers to the fulfilment of certain requirements  
provided for in Article XIX of the GATT 1994 and the Agreement on Safeguards . The exercise of the 
right to impose a safeguard measure must in turn fulfil certain requirements in  order to be "within 
the limits set out in the treaty "11. Accordingly, contrary to what the United States argues, both 
inquiries identified by the Appellate Body in US – Line Pipe  related to the WTO -consistency  of a 
measure, and not to its legal character ization as a safeguard measure.   
d) Notification is not a constituent feature of a safeguard measure  
21. The notification requirements laid down in Article 12 of the Agreement on Safeguards are 
unrelated to the issue of whether a measure constitutes a saf eguard measure.  
22. As the Appellate Body stated in Korea – Dairy regarding the object and purpose of Article 12, 
"the notification serves essentially a transparency and information purpose "12. Thus, the notification 
requirements constitute "obligations " but are not a "constituent feature " of a safeguard. In other 
words, they do not determine the existence of a safeguard measure, as argued by the United States.  
 
8 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.60.  
9 United States’ first wr itten submission, paras. 69 and 72.  
10 Appellate Body Report, Indonesia – Iron or Steel Products , para. 5.57. (emphasis original)  
11 Appellate Body Report, Indonesia – Iron or Steel Products , Fn. 193, referring to Appellate Body 
Report, US – Line Pipe , para. 84.  
12 Appellate Body Report, Korea - Dairy , para. 111, referring to the Panel Report, para. 7.126.  WT/DS558/R/Add.1  
 
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  23. The notification obligations provided for under Article 12 of the Agreement on Safeguards are 
thus conditions  – among others – for a Member to lawfully exert its right to apply a safeguard 
measure and not a constituent feature of a safeguard measure, the absence of which would impede 
the characterization of the measure as a safeguard. According ly, if a Member fails to fulfil its 
notification obligations under the Agreement on Safeguards, a panel would conclude that the Member 
concerned acted inconsistently with its obligations under Article 12 of the Agreement on Safeguards 
and not that a safegu ard measure does not exist.  
24. If the invocation of the right to take a safeguard measure by way of notification were – as 
argued by the United States – a prerequisite for a safeguard measure to exist, it would suffice for a 
Member not to notify a measur e in order to avoid the application of Article XIX of the GATT 1994 
and the Agreement on Safeguards – and thus to circumvent its obligations under these provisions. 
Doing so would also unilaterally deprive affected Members of their right to take rebalancin g measures 
under Article XIX:3 (a) of the GATT 1994 and Article 8 of the Agreement on Safeguards.  
IV. INTER -PANEL COORDINATION  
25. To the extent that the determination of the applicability of the Agreement on Safeguards to 
China 's measure depends on whethe r the underlying measures, namely the US measures on import 
on steel and aluminium, are safeguard measures, there is a direct link between this dispute and the 
dispute in which the underlying US measures on imports on steel and aluminium are challenged 
(DS544).  
26. Pursuant to Article 3.2 of the DSU "the dispute settlement system of the WTO is a central 
element in providing security and predictability to the multilateral trading system ", and, pursuant to 
Article 3.7 of the DSU, "the aim of the dispute settlement mechanism is to secure a positive solution 
to a dispute ". Contradictory findings in this dispute and in the other disputes concerning measures 
taken in response  to the import adj ustment measures imposed by the United States on certain steel 
and aluminium products on the one hand, and disputes concerning these import adjustment 
measures on the other hand, would not be consistent with those principles.  
27. In Switzerland 's view, the  Panel would act within the bounds of its discretionary authority 
under Article 13 of the DSU in seeking information from the panel in DS544, as long as it maintains 
the deliberations confidential as required by Article 14 of the DSU and respects the requi rements of 
due process. In particular, the other panel should not participate in the internal discussions and 
decision process of this Panel and vice-versa .  
28. Switzerland notes that another option would be for the Panel not to issue its report until the 
report of the panel in DS544 has been issued, keeping in mind the rule under Article 12.2 of the 
DSU that "[p]anel procedures should provide sufficient flexibili ty so as to ensure high -quality panel 
reports  while not unduly delaying the panel process ". This would allow the Panel to take into account 
the findings of the panel in DS544.  
 
 WT/DS558/R/Add.1  
 
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  ANNEX  C-7 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TÜRKIYE  
1  INTRODUCTION  
1.1.  This integrated executive summary contains the arguments presented by the Republic of 
Turkey (Turkey) in its third -party written submissions, oral statements, and responses to panel 
questions in the parallel "rebalancing" dispute in DS558.  
1.2.  The United States' safeguard measures were introduced in March 2018 and subsequently 
modified on several occasions. They take the form of additional duties and quantitative restrictions, 
as well as a range of additional unpublished "grey area" measures, such as agreements with other 
countries to restrict their e xports to the United States.  
1.3.  When a WTO Member takes a safeguard measure, Article XIX of the General Agreement on 
Tariffs and Trade (GATT 1994) and the Agreement on Safeguards explicitly contemplate that other 
affected Members may impose trade restr ictions on the Member imposing the safeguard, in order to 
restore a balance of equivalent concessions. The respondents' measures challenged in DS558, 
DS559, and DS566 appear to seek to do this. The United States' safeguard measures were 
challenged separate ly by Turkey (DS564), China (DS544), India (DS547), the European Union (EU) 
(DS548), Norway (DS552), Russia (DS554), and Switzerland (DS556) (Section 232 disputes).  
1.4.  The United States adopted its safeguard measures without complying with its obligatio ns under 
Article XIX of the GATT 1994 and the Agreement on Safeguards, including, in particular, the 
obligation to take into account the trade interests of affected WTO Members. Thus, the United States 
did not "endeavour to maintain a substantially equival ent level of concessions and other obligations 
… between it and the exporting Members … affected by [the] measure", contrary to Article 8.1 of 
the Agreement on Safeguards. The United States also failed to comply with the basic duty to hold 
consultations, a s required by Article 12.3 of the Agreement on Safeguards.  
1.5.  Thus, Turkey, as well as the other respondents in the rebalancing proceedings, had no choice 
other than to proceed to the suspension of equivalent concessions in order to defend their legitim ate 
economic interests.  
1.6.  The United States and the WTO Membership at large were duly notified of these actions and 
the legal basis for them. Hence, the United States, along with the rest of the WTO Membership, were 
fully aware of the approach of Turke y, China, the EU, and Russia to this matter and the legal basis 
for this approach.  
1.7.  Nevertheless, the United States has brought its claims in the present dispute under Articles I 
and II of the GATT 1994. As such, the United States' complaint in these disputes suffers from a 
fundamental flaw. The proper legal basis for these disputes is the WTO legal regime governing 
safeguard measures. Article 8 of the Agreement on Safeguards and Article XIX:3(a) of the 
GATT  1994 grant an affirmative right  to any WTO M ember(s) affected by a safeguard measure to 
obtain compensation from the importing Member or, in case compensation is not agreed upon, to 
suspend equivalent concessions.   
1.8.  A claim under another provision of the GATT 1994 is not a valid alternative to a claim that must 
be brought under the WTO safeguards regime. Any such claims would have to be rejected as having 
been brought on an improper legal basis, i.e. under an incorrect or inapplicable provision of WTO  law.  
1.9.  In light of these  considerations, should the Panel determine – as it should – that both the 
United States' measures on steel and aluminium and the respondents' measures at issue in these 
disputes fall under Article XIX of the GATT 1994 and the Agreement on Safeguards, the Panel has 
no choice but to end its analysis at that juncture and to reject the United States' claims.  WT/DS558/R/Add.1  
 
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  1.10.  Given that Turkey has addressed these matters in greater detail in its submissions in the 
related disputes, Turkey — Additional Duties on Certain Products from the United States (DS561) 
and United States — Certain Measures on Steel and Aluminium Products (DS564), Turkey attached 
these submissions to its Third -Party Submissions, as exhibits, TUR -1 and TUR -2 respectively.  
2  FACTUAL BACKGROUND  
2.1.  As noted, the respondents' additional duties were a response to the United States' safeguard 
measures on steel and aluminium within the meaning of Article 8 of the Agreement on Safeguards 
and Article XIX:3(a) of the GATT 1994. In order to fully understand the factual and legal context of 
the measures at issue, therefore, it is important to start with the United States' underlying safeguard 
measures.  
2.2.  The United States' safeguard measures consist of:  
• additional duties on a wide rang e of steel and aluminum products, which are well above the 
United States' tariff bindings in the United States' GATT Schedule of Concessions;  
• quantitative restrictions, on steel or aluminum, or both; and  
• certain unpublished measures in the form of vo luntary export restraints.  
2.3.  These safeguard measures were imposed by the President of the United States through a series 
of Presidential Proclamations, issued between March and August 2018. These Presidential 
Proclamations were, in turn, based on two investigations conducted by the United States Department 
of Commerce on the basis of Section 232 of the 1962 Trade Expansion Act. The nominal purpose of 
these investigations was to determine whether imports of steel and aluminium were entering the 
United S tates in a manner that impaired national security. In reality, the investigations essentially 
determined whether increased steel and aluminium imports were injuring, or threatening to injure, 
the profitability of the US steel and aluminium industries. In e ssence, therefore, the investigations 
were safeguard investigations in all but name.  
3  TURKEY'S OBSERVATIONS ON THE PRESENT DISPUTE  
3.1  Summary of the Appellate Body's standard for determining the existence of a 
safeguard measure  
3.1.  The United States ' steel and aluminium measures are safeguard measures within the meaning 
of Article XIX of the GATT 1994 and the Agreement on Safeguards. This is because they satisfy the 
legal standard for determining whether a safeguard measure exists, as explained by th e 
Appellate  Body in Indonesia — Iron or Steel Products . The Appellate Body identified the two following 
definitional criteria for the existence of a safeguard measures:  
• The "measure must suspend, in whole or in part, a GATT obligation or withdraw or modi fy a 
GATT concession"; and  
• The "suspension, withdrawal, or modification in question must be designed to prevent or 
remedy serious injury to the Member's domestic industry caused or threatened by increased 
imports of the subject product".1  
3.2.  The App ellate Body emphasized that, to constitute a safeguard measure under WTO law, the 
suspension of a GATT obligation aimed at preventing or remedying serious injury "must be designed 
to pursue a specific objective , namely preventing or remedying serious injur y to the Member's 
domestic industry".2 This specific objective must be "the most central" aspect of the measure.3 In 
 
1 Appellate Body Report, Indonesia — Iron or Steel Products , para. 5.60 (see also para. 5.64).  
2 Appellate Body Report, Indonesia — Iron or Steel Products , paras. 5.56, 5.58. (underlining added)  
3 Appellate Body Report, Indonesia — Iron or Steel Products , paras. 5.60, 5.64, 5.68, and 5.70.  WT/DS558/R/Add.1  
 
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  its determination of whether a safeguard measure exists, a panel should "evaluate and give due 
consideration to all relevant factors", no ne of which is, in and of itself, dispositive.4  
3.2  Turkey agrees with the respondents that the United States' measures on steel and 
aluminium are safeguard measures  
3.3.  The United States' case rests entirely on its erroneous view that its import measures on steel 
and aluminium, as well as the rebalancing measures at issue in these disputes, fall outside the scope 
of WTO safeguard rules. The United States' main argument is that, because the United States has 
failed to notify its safeguard me asures in a manner consistent with applicable provisions of the 
Agreement on Safeguards, not only should these measures escape all WTO safeguard disciplines, 
but the retaliatory rights of the Members affected by these measures must also be curtailed.  
3.4.  Turkey trusts that the Panel will reject the United States' position. A Member imposing a 
measure cannot decide unilaterally whether that measure satisfies the Appellate Body's two -pronged 
test and is a safeguard measure, subject to the requirements of Ar ticle XIX of the GATT 1994 and 
the Agreement on Safeguards. These are objective inquiries and must be conducted on the basis of 
objective criteria.  
3.5.  Consequently, a Member imposing a measure also cannot itself determine, through its domestic 
law and t hrough the categorization or nomenclature of the measure, to what extent WTO law applies, 
or, indeed, which provisions of WTO law apply. Pursuant to Article 11 of the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (DSU), it is a  panel's duty to "make an 
objective assessment of the matter before it, including an objective assessment of ... the applicability 
of and conformity with the relevant covered agreements " (emphasis added).  
3.6.  This focus on the objective features of a mea sure, rather than on any unilateral domestic 
categorization of it, reflects the general principle of WTO law that has been applied in several WTO 
disputes.5 Guided by this principle, in Dominican Republic – Safeguard Measures , the panel examined 
the legal  characterization of the measures at issue as safeguard measures, given that one of the 
parties had contested this characterization.6 In Indonesia — Iron or Steel Products and India — Iron 
and Steel Products , the panels decided to conduct this assessment,  even though the two disputing 
parties had agreed that the measures at issue constituted  safeguard measures.7 
3.7.  The United States appears to ignore a key element of the Appellate Body's reasoning in 
Indonesia — Iron or Steel Products. The Appellate Body drew a bright -line distinction between, on 
the one hand, the objective definitional criteria of a safeguard measur e, and, on the other hand, 
compliance with the conditions (both substantive and procedural, such as notification obligations) 
required for a WTO -consistent safeguard measure.8 This means, for instance, that a failure to notify 
properly a safeguard measure  within the meaning of Article 12.1 of the Agreement on Safeguards 
cannot mean that WTO safeguard rules do not apply. Rather, a measure is still a safeguard measure 
as long as it meets the definitional criteria explained above. However, such a measure may be 
inconsistent with Article XIX of the GATT 1994 and the relevant provisions of the Agreement on 
Safeguards. Any other conclusion would lead to unreasonable results. A Member could avoid the 
applicability of potentially onerous rules simply by violating t hem. 
3.8.  In sum, based on the two objective criteria that the Appellate Body set out in  Indonesia — Iron 
or Steel Products , the United States' import measures on steel and aluminium, as well as the 
respondents' rebalancing measures, fall under the scope of Article XIX of the GATT 1994 and the 
Agreement on Safeguards.  
 
4 Appellate Body Report, Indonesia — Iron or Steel Products , para. 5.60.  
5 Appellate Body Report, US – Large Ci vil Aircraft (2nd complaint) , para. 593; Appellate Body Report, 
Canada – Renewable Energy/Canada – Feed-in Tariff Program , para. 5.127; Appellate Body Report, 
Indonesia  — Iron or Steel Products , para. 5.32.  
6 Panel Report, Dominican Republic – Safeguard Me asures , paras. 7.23 -7.24, 7.89.  
7 Panel Report, Indonesia — Iron or Steel Products , para. 7.10; and Panel Report, India — Iron and 
Steel Products , paras. 7.29 -7.30.  
8 Appellate Body Report, Indonesia — Iron or Steel Products , para. 5.57.  WT/DS558/R/Add.1  
 
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  3.3  The United States' complaint should be dismissed in its entirety as the United States 
based its claims on improper legal provisions  
3.9.  Should the Panel agree with the respondents, and  Turkey, that (i) the United States' measures 
on steel and aluminium are safeguard measures within the meaning of Article XIX and the Agreement 
on Safeguards, and (ii) the measures challenged in these disputes fall under Article XIX of the 
GATT  1994 and Ar ticle 8.2 of the Agreement on Safeguards, it should reject the United States' claims 
under Articles I and II of the GATT 1994 as improper. This is because the United States should have 
brought its claims under Article XIX:3(a) of the GATT 1994 and Article 8.2 of the Agreement on 
Safeguards. In addition, the United States cannot be permitted to add these claims at a later stage 
of the panel proceedings, as these claims were not set out or otherwise mentioned in the 
United  States' consultations and panel requ ests.  
3.10.  The United States attempts to circumvent its obligation to make a prima facie  case of a 
violation of Article 8.2 of the Agreement on Safeguards and/or Article XIX:3(a) of the GATT 1994 by 
alleging that the respondents' reference to the Agreem ent on Safeguards is in the nature of an 
"affirmative defence". Turkey trusts that the Panel will reject this erroneous argument.   
3.11.  The WTO safeguards regime – whether in Article XIX or in the Agreement on Safeguards – is 
not in the nature of an (aff irmative defence) exception.  Rather, it is a separate, free -standing regime 
that applies to particular types of measures. Panels occasionally refer to such legal provisions as 
"autonomous rights", juxtaposing them to exceptions.9 Other WTO Members that fe el aggrieved by 
such measures, in particular safeguard measures, have to articulate their challenges on the basis of 
the applicable trade remedy rules (i.e. WTO safeguard rules).  
3.12.  The term "affirmative defence" does not derive from the text of the co vered agreements. 
Rather, it is a term developed by WTO panels and the Appellate Body to describe the relationship 
between particular provisions of the covered agreements, provisions that are not at issue in this 
case. A good example is the relationship be tween Article XI and Article XX of the GATT 1994. When 
Article XI has been found to be violated, for instance, as a result of an import prohibition, a 
respondent may choose  to invoke Article XX as an affirmative defence. For example, the respondent 
may arg ue that the measure pursues a legitimate non -trade purpose, such as public health.   
3.13.  If the respondent indeed chooses  to invoke  Article XX, it bears the burden of proof to 
demonstrate that all of the elements of Article XX are met. If it succeeds in doing so, the initial 
violation of Article XI is excused.   
3.14.  If the respondent chooses  not to invoke  Article XX – which it is pe rfectly free to do – then the 
adjudicating panel is precluded from addressing Article XX. Otherwise, the panel would make a case 
for the respondent. In these circumstances, the violation of Article XI remains and the respondent 
has lost the dispute, due to  a violation of Article XI. The absence of a finding under Article XX does 
not change the fact that the initial finding of violation under Article XI exists.  
3.15.  But this relationship is fundamentally different from the relationship between Articles I a nd II 
of the GATT 1994, on the one hand, and the safeguard disciplines in Article XIX of the GATT 1994 
and the Agreement on Safeguards, on the other hand.  
3.16.  This is because, when a measure falls under Article XIX and the Agreement on Safeguards, 
that measure does not – at the outset of the panel's analysis – fall under Articles I and II. The 
obligations in these provisions are "suspended", displaced, not applicable, and, therefore, cannot be 
violated. This is in stark contrast to Article XI in the prev ious example.  
3.17.  Moreover, in pointing to Article XIX and the Agreement on Safeguards as the applicable law, 
the respondent is not choosing  to raise an affirmative defence. As Turkey explained, there is no 
violation that would have to be justified by m eans of an affirmative defence. And the respondent is 
not exercising any choice. The respondent is instead pointing to what it believes is the proper 
 
9 See, for instanc e, Panel Report, EC – Approval and Marketing of Biotech Products , 
paras.  7.2964 -7.2965, 7.2984 -7.2998.  WT/DS558/R/Add.1  
 
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  applicable law , as the starting point for the panel's legal analysis.  And it is incumbent on the panel 
to ascertain that starting point for its analysis, according to Article 11 of the DSU.  
3.18.  Prior panel and Appellate Body decisions unambiguously support this approach. In the context 
of anti -dumping measures, the Appellate Body found in EC – Fasteners (C hina) that, until a finding 
under Article VI and the Anti -Dumping Agreement has been made, it is not possible to determine 
whether a measure violates Articles I and II of the GATT 1994.10 Similarly, in US – Zeroing (Japan) , 
the Appellate Body found a viol ation of Article II of the GATT only after finding violations of WTO 
anti-dumping rules.11  
3.19.  In the latter case, the Appellate Body described Articles VI and the Anti -Dumping Agreement 
as a "safe harbour" with respect to Articles I and II of the GAT T 1994.12 The term "safe harbour" is 
just another way of saying what Turkey has just explained:  that Articles I and II cannot be said to 
have been violated until the analysis under the anti -dumping rules has been concluded. If the 
measure is consistent wi th the anti -dumping rules, there is no violation of Articles I and II. Hence 
there is no need to invoke an exception, or "affirmative defence".   
3.20.  The relationship between Articles I and II, on the one hand, and Article VI and the 
Anti-Dumping Agreeme nt, on the other hand, is fully analogous to the relationship with the safeguard 
rules.  
3.21.  Stepping away from the technical language of "affirmative defence", Turkey urges the Panel 
to consider the following, as a matter of the context and purposes of  the relevant texts:  
3.22.  If the United States' approach in these disputes were to be correct, this would revolutionize 
the manner in which complainants would from now on challenge trade remedy measures. 
Complainants could take the very simple route of a lleging a violation of Articles I and II, then lean 
back, and force the respondent to raise, for instance, the Anti -Dumping Agreement as an "affirmative 
defence". The respondent would have to demonstrate as a negative that its measure does not violate 
any of the many substantive and procedural obligations under Article VI of the GATT 1994 and the 
Anti-Dumping Agreement.   
3.23.  This is not only entirely unfeasible but also legally incorrect. It is also contrary to how trade 
remedy measures have been challen ged in the literally hundreds of WTO disputes over the past 
quarter of a century in the WTO, including in numerous cases initiated by the United States.  
3.24.  On the basis of the above , Turkey considers that the Panel should begin its analysis by 
assessin g the threshold question of the applicability of the provisions cited by the parties to the 
measures at issue. Either Articles I and II of the GATT 1994 are applicable or, alternatively, 
Article  XIX:3(a) of the GATT 1994 and Article 8.2 of the Agreement on Safeguards are applicable.  
Both cannot be directly applicable at the same time.  
3.25.  In sum, the proper legal basis for the United States to bring claims in these disputes is 
Article  XIX:3(a) of the GATT 1994 and Article 8 of the Agreement o n Safeguards. Should the Panel 
agree with this position, it should reject the United States' claims under Articles I and II of the 
GATT  1994, because these claims are not based on the correct applicable WTO legal provision.  
3.4  Proposals on inter -panel c oordination  
3.26.  The dispute settlement proceedings in the Section 232 disputes are closely linked to the 
rebalancing proceedings. In particular, in both disputes, the determination of whether the 
United  States' import measures on steel and aluminium co nstitute safeguard measures within the 
meaning of WTO law is a core element of the respective panel's analysis. In the Section 232 disputes, 
the panel must assess whether the United States' import measures constitute safeguard measures 
in order to assess t he claims of violations under Article XIX of the GATT 1994 and the Agreement on 
Safeguards. In the proceedings at hand, in turn, the Panel must assess whether the United States' 
measures constitute safeguard measures, as part of its assessment of whether t he respondent's 
 
10 Appellate Body Report, EC – Fasteners (China) , paras. 392 -393. 
11 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan) , paras. 200, 209. 
12 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan) , para. 209.  WT/DS558/R/Add.1  
 
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  measures at issue constitute rebalancing measures pursuant to Article 8.2 of the Agreement on 
Safeguards and Article XIX:3(a) of the GATT 1994.  
3.27.  In these circumstances, it would be of great concern if the two panels were to reach div ergent 
conclusions on the legal characterization of the United States' import measures on steel and 
aluminium. This would undermine the meaningful operation of the WTO dispute settlement system, 
especially in the current circumstances in which the Appellat e Body is not operational. Absurd 
consequences could arise if, for instance, the panel in the Section 232 disputes were to decide that 
the United States ' measures are not safeguard measures, while this Panel decided that the 
United  States ' measures are saf eguard measures, and vice versa.  
3.28.  In Turkey's view, the most appropriate approach that this Panel should take to avoid the 
undesirable outcome of divergent views is to delay issuing its report until the panel in the 
Section  232 proceedings has issued its report. Turkey notes, however, that while this approach 
would seem reasonable and desirable, the Panel has a duty under Article 11 of the DSU to make its 
own objective and independent assessment of the matter before it. As ex plained, this matter 
necessarily includes the legal characterization of the United States' measures. As the Appellate Body 
clarified in US – Continued Zeroing , "[f]actual findings made in prior disputes do not determine facts 
in another dispute".13  
 
 
 
13 Appellate Body Report, US – Continued Zeroing , para. 190.  WT/DS558/R/Add.1  
 
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  ANNEX  C-8 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE 
1. INTRODUCTION  
1. Ukraine  welcomes the opportunity to participate as a third party in case China – Additional 
Duties on Certain Products from the United States  and to present its views on certain issues raised 
by parties in this dispute. Ukraine will provide its comments on the interpretation and application of 
the provisions of the WTO agreements discussed before this Panel.  
2. While  not taking a final position on the specific merits of this case,  Ukraine will provide its 
views on some of the legal claims advanced by the Parties to the dispute. In particular, Ukraine will 
make submissions on the following issues:  
- whether the United States failed to present proper claims before the Panel by not ad dressing 
Article XIX:3 of the General Agreement on Tariffs and Trade 1994 ( "GATT 1994 ") and the 
Agreement on Safeguards in its panel request; and  
- request for preliminary ruling put forward by China.  
3. Ukraine  reserves the right to raise other issues at the third party hearing with the Panel.  
2. CLAIMS REGARDING THE UNITED STATES' FAILURE TO PRESENT PROPER CLAIMS 
BEFORE THE PANEL  
4. This dispute raises an important issue of the panel 's terms of reference under Article 7 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes ( "DSU") as well as  
what information  in panel request is "sufficient to present the problem clearly " under Article 6.2 of 
the DSU. Ukraine would like contribute to t he understanding of these Articles, outline its vision, and 
help the Panel in the analysis without making judgments on the facts of the case.  
5. Not for the repetition but for the sake of clarity, Ukraine would briefly provide the background 
of this claim. In this case, the United States challenges the additional duties for some products 
originating in the United States imposed by the People 's Republic of China ( "China ") only under 
Articles I and II of the GATT 1994.1 In this respect, China claims th at its measures are taken pursuant 
to Article XIX:3 of GATT 1994 and Article 8.2 of the Agreement on Safeguard and the United States  
was aware of this fact as it was explicitly specified in its notification of the measures to the Council 
for Trade in Goods  on 29 March 2019.2 However, the United States did not to make any claim with 
regard to the Agreement on Safeguards, because of its belief that it is "within the judgment of the 
WTO Member imposing the measure " to characterise such measure as being safegu ard or not.3  
6. In this regard, Ukraine would like to put on record the following. First, it is beyond dispute 
that Article  3.3 of the DSU entitles a Member that considers that any benefits accruing to it directly 
or indirectly under the covered agreemen ts are being impaired by measures taken by another 
Member to have recourse to the WTO dispute settlement mechanism to be able to redress the 
violations.  
7. Second , it is also clear that a Member is largely self -regulating under Article 3.7 of the DSU 
and it must be presumed by panels and the Appellate Body that "whenever a Member submits a 
request for establishment of a panel, that such Member does so in good faith, having duly exercised 
its judgement as to whether recourse to that panel would be 'fruitful '."4 
 
 Ukraine requested that its written submission is used as its integrated executive summary.  
1 First Written  Submission of the United States, para s. 2, 5. 
2 First Written Submission of China , para. 5 0. 
3 First Written Submission of the United States, para. 88. 
4 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 74.  WT/DS558/R/Add.1  
 
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  8. Third, Article 7.2 of the DSU states that "panels shall address the relevant provisions in any 
covered agreement or agreements cited by the parties  to the dispute "5 referring to parties and not 
a party meaning that panels shall address the provisions of the agreements raised by both parties 
(complaining and responding).  
9. Fourth , it is however settled case law that a panel 's terms of reference is determined by the 
panel request6 and panels thus cannot rule on the issues that were not included in the panel request. 
In our case, this means that the Panel cannot rule whether China acted consistently or inconsistently 
with the Agreement on Safeguards as there were no claims raised by the United States under this 
Agreement.  
10. Fifth, findings in EC – Tariff Preferences  and Brazil – Taxation  cases stipulate t hat when the 
complaining party is aware that the challenged measure was adopted under the specific agreement, 
a complaining party is obliged to identify the relevant provisions of this specific agreement in its 
panel request.7 
11. Thus, Ukraine sees two p lausible scenarios of the situation. On the one hand, there is the 
loop-hole for the complaining party to escape from its obligation to present the problem clearly under 
Article 6.2 of the DSU in such cases where we hypothetically presume that a complainan t intently 
fails to address the claim under the specific agreement and simply refers to the GATT 1994 violation 
when the issue is really governed by that specific agreement. On the other hand, the complaining 
party is completely right, when we one more tim e presume, that the claim falls exclusively under 
GATT 1994 and not under, for example, the Agreement on implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994, the Agreement on Subsidies and Countervailing 
Measures, the Agreement on Safeguards, etc.  
12. It is logically that in the first presumed instance, panel should decline to rule on the violation. 
However, in the second, it flows that if panel declines to rule, it will deprive the complaining party 
of its right to "a positive solution to a dispute " under Article 3.7 of the DSU.  
13. Leaving the presumption behind, Ukraine therefore believes that the Panel, while making its 
analysis, should look into the nature of the measure at issue to find whether it is in its terms of 
reference as was stated in paragraph 9 of this submission.  
14. Notwithstanding the provision of Article 3.10 of the DSU that "complaints and 
counter -complaints in regard to distinct matters should not be linked ", Ukraine is of the view that 
the result of t his dispute  cannot contradict and is tightly connected to the findings of the panel in 
the ongoing United States – Certain Measures on Steel and Aluminium Products case brought by 
China as in that case China claims the violation of the United States under the Agreement on 
Safeguard.  
15. To summarize and to make it clear, Ukraine is without prejudice whether the United States 
measures were safeguard measures or not, Ukraine rather believes that it is the Panel 's task first to 
look into the nature of the meas ure to understand if the Panel can then continue its analysis of the 
GATT 1994 violations.  
2.1 Comments on the request for preliminary ruling put forward by China  
16. Ukraine has already expressed its views that the Panel should first examine the nature of  the 
measure  to see if it falls within the Panel 's terms of reference. Thus, Ukraine would not repeat its 
position once again.  
17. Here, Ukraine only highlights that insuring the "prompt settlement " of the dispute is necessary 
to promote  "security and pre dictability in the dispute settlement system ".8 Therefore, the Panel has 
 
5 DSU, Article 7.2 (emphasis added).  
6 See for example, Appellate Body Report, EC and certain Member States – Large Civil Aircraft, 
para. 639 (referring to Appellate Body Report, Guatemala – Cement I , paras. 72 and 73; Appellate Body 
Report, US – Carbon Steel , para. 125; Appellate Body Report, US – Continued Zeroing para. 160) . 
7 See for example, Appellate Body Report, EC – Tariff Preferences , para. 118 ; Appellate Body Report, 
Brazil – Taxation , para 5.366 . 
8 Appellate Body Report, US – Stainless Steel (Mexico) , para. 161.  WT/DS558/R/Add.1  
 
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  to make an effort to address the issue identified above as soon as practicable namely in its 
preliminary ruling.  
3. CONCLUSIONS  
18. Ukraine hopes that its contribution in the present dispute will be helpful to the Panel in 
objectively assessing the matter before it and in developing the respective legal interpretations of 
the WTO agreements. Ukraine thanks the Panel for the opportunity to share its views and would be 
happy to p rovide further comments on the third -party session or answer any questions the Panel 
may have.  
_______________  
 
 
 WT/DS558/R/Add.1  
 
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  ANNEX D  
COMMUNICATIONS BY THE PANEL  
Contents  Page  
Annex D -1 Communication by the Panel on requests for enhanced third -party rights  79 
Annex D -2 Communication by the Panel on China's request for a ruling under Article 6.2 
of the DSU  81 
 
 WT/DS558/R/Add.1  
 
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  ANNEX D -1 
COMMUNICATION BY THE PANEL ON REQUESTS FOR ENHANCED THIRD -PARTY RIGHTS  
The Panel refers to the separate communications from Canada1, Turkey2, Russia3, 
the European  Union4, and Mexico5 (hereafter "the requesting third parties"), asking that the Panel 
exercise its discretion under Article 12.1 of the DSU to grant all third parties additional rights to 
those provided in Article  10 of the DSU. In particular, the requesting third parties  requested the  
Panel to grant the following rights: (i) to receive copies of all of the parties' written submissions, 
their oral statements, rebuttals and answers to questions from the Panel and each other, through 
all stages of the proceedings; (ii) to be pr esent for the entirety of all substantive meetings of the 
Panel with the parties; (iii) to review the draft summary of their own arguments in the descriptive 
part of the Panel Report; and (iv) to make a brief oral statement during the second substantive 
meeting.  
The requesting third parties argue that particular circumstances exist in this dispute  that warrant 
the granting of enhanced third -party rights , including that: (i) the measure that has been challenged 
by the United States in this dispute is simila r to the measures that have been challenged by the 
United States in the five (5) disputes initiated against the requesting third parties; (ii)  the outcome 
of this dispute may have a significant impact on the Panels' findings and recommendations in the 
other five (5) disputes  initiated by the United States against the requesting third parties; (iii) the 
number of responding parties as well as third parties participating in these  six disputes demonstrates 
the outcome s of these disputes will have important legal and systemic implications on the entire 
WTO Membership ; and (iv) the enhanced third -party rights requested would not negatively affect 
due process in general ; or specifically , the due process rights of the United  States ; or would impose 
any additional burden on the United States.  
The Panel requested the parties' views on each of the five  (5) requests for enhanced third -party 
rights. China supported these requests. For China, the similarities between the measure ch allenged 
by the United States in this dispute and those in the other five (5) Additional Duties disputes, as 
well as the fact that the United  States has brought, simultaneously to this dispute, disputes against 
the requesting third  parties, constitute spec ial circumstances that warrant the granting of enhanced 
third-party rights. China also noted that the specific enhanced rights requested by the third parties 
would not impose any undue additional burden on the parties to this dispute.  
The United States, fo r its part, requested that the Panel deny the se requests for enhanced third -party 
rights . The United States is concerned that the respondents in all six (6) Additional Duties disputes 
may be using the additional requested rights to function as co -responden ts in these disputes . For 
the United States, these requests are not well founded under the DSU, and the granting of additional 
rights to third parties would result in a corresponding imposition of additional obligations on the 
parties. The United States al so argued that additional obligations may not be imposed on a disputing 
party absent its consent.  
The Panel understands that it enjoy s discretion to grant additional rights to third parties  so long as 
such rights are consistent with the DSU and due proces s.6 Prior panels have on occasion exercised 
this discretion and granted additional third -party rights in certain circumstances, which could, for 
instance, include situations where the measures at issue result in significant economic benefits for 
certain t hird parties7; situations where third parties maintained measures similar to the measures 
 
1 Communication dated 15 March 2019.  
2 Communication dated 18 March 2019.  
3 Communication dated 19 March 2019.  
4 Communication dated 20 March 2019.  
5 Communication dated 22 March 201 9. 
6 Appellate Body Reports, US – FSC (Article 21.5 – EC), para. 243; EC – Hormones (Canada) , 
para. 154; US – 1916 Act , para.  150. See also Panel Reports, EC – Export Subsidies on Sugar , para.  2.3; 
Korea – Nucleoids , Annex D -2. 
7 Panel Reports, EC – Bananas  III (Guatemala and Honduras), para. 7.8; EC – Tariff Preferences , 
Annex  A, para.  7(a); EC – Export Subsidies on Sugar , para. 2.5.   WT/DS558/R/Add.1  
 
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  at issue8; or where practical considerations arise from a third party's involvement as a party in a 
parallel panel proceeding.9 The Panel  is not persuaded that the circumstances of the requests before 
it would warrant the granting of enhanced third -party rights .  
The Panel disagrees with the requesting third parties' assertion that the alleged similarity of the 
challenged measures in the six (6 ) Additional Duties disputes requires that the Panel grant enhanced 
third-party rights in this particular dispute. While understanding the interest of the requesting third 
parties in the outcome of this dispute, the Panel considers that, in addition to the ir ability to present 
their views in this dispute as third parties, each of the requesting third parties is the respondent in 
one of the other five (5) Additional Duties disputes, and will therefore have the opportunity to defend 
its own challenged measure s in its respective panel proceedings.  
Although the Panel appreciates the systemic importance of the outcome of these disputes for all 
third parties , the Panel  is not persuaded that the rights provided for in Article 10 of the DSU would 
not suffice to all ow their interests to be fully taken into account . Consistent with Article 10.2 of the 
DSU, all third parties in panel proceeding s may be presumed to have a substantial interest in the 
matter before the Panel .10 WTO Members have a collective interest in th e interpretation of covered 
agreements, and panels ' interpretations of WTO agreements are, by definition, of systemic 
importance to WTO Members .11 
The requesting third parties  have also argued that granting their requests would not negatively affect 
due pr ocess or impose any undue additional burden on the parties. The Panel notes that the 
requesting third parties are asking the Panel to go beyond what is specifically provided for in the 
DSU, despite the lack of agreement by the parties on the requests. In t he Panel's view, this should 
be enough to raise due process concerns. Furthermore, the Panel notes that the requested enhanced 
third-party rights would impose upon the parties the additional burdens of processing and reviewing 
numerous third -party submissi ons in addition to those foreseen in Article 10 of the DSU, and 
eventually responding to related questions from the Panel or the other party.  
In considering requests for enhanced third -party rights, the Panel must be mindful of the distinction 
drawn in the  DSU between parties and third parties, which should not  be blurred.12 In this respect, 
the Panel agree s with the United States that, when considering whether the balance of rights and 
obligations of parties and third parties agreed to in the DSU may be al tered, it is important to bear 
in mind the absence of an agreement of the parties to the dispute. The Panel is not persuaded that 
the arguments put forward by the requesting third parties justify altering such a balance without the 
agreement of the parties .13  
In the light of the foregoing, the Panel declines the requests for enhanced third -party rights 
submitted by Canada, Turkey, Russia, the European Union and Mexico . 
 
 
 
8 Panel Report, EC – Tariff Preferences , Annex A, para. 7(b).  
9 Panel Report, EC — Hormones (Ca nada) , para. 8.17.  
10 Panel Report, EC and certain member States – Large Civil Aircraft , para.  7.166.  
11 Panel Report, India – Solar Cells , para. 7.35.  
12 Panel Report, EC- Bananas III (Guatemala and Honduras) , para.  7.9. See also, Panel Reports, EC – 
Tariff Preferences , Annex A, para.  7(d); EC –Export Subsidies on Sugar (Australia, Brazil and Thailand) , 
para. 2.7; EC and certain member States – Large Civil Aircraft , para.  7.166; Korea – Nucleoids , Annex D -3. 
13 Numerous panels have denied requests for enhanced  third-party rights when one of the parties has 
objected to such request, e.g. in EU – Biodiesel (Indonesia) , Korea – Radionuclides , US – Coated Paper 
(Indonesia) , Indonesia – Import Licensing Regimes , US – Washing Machines , EC – Seal Products  and Argentin a 
– Import Measures .  WT/DS558/R/Add.1  
 
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  ANNEX D -2 
COMMUNICATION BY THE PANEL ON CHINA'S REQUEST FOR A RULING  
UNDER ARTICLE 6.2 OF THE DSU  
In its first written submission, China requested that the Panel "make a ruling, on a preliminary basis 
or otherwise, that the claims of the United States are not prope rly before the Panel".1 Specifically, 
China argues that the United States' panel request does not meet the requirements of Article 6.2 of 
the DSU.  
The Panel has carefully considered the arguments on China's request submitted by the parties and 
the third parties.  
China's request touches upon issues that are closely related to the substantive questions raised by 
the parties in this dispute. In the Panel's view, a preliminary ruling on th is issue may require 
adjudicating upon the merits of the parties' argum ents, including with respect to the applicability of 
the relevant covered agreements to the measures at issue. The Panel thus considers that a decision 
on a preliminary basis would be premature . 
Accordingly, the Panel has decided to address this issue in i ts Report and therefore declines China's 
request to make a ruling, on a preliminary basis, that the claims of the United States are not properly 
before the Panel.  
 
__________  
 
 
1 China's first written submission, para. 62.