WT/DS499/AB/R/Add.1  
 
4 February  2020 
(20-0832) Page: 1/27 
  Original: English  
 
RUSSIA – MEASURES AF FECTING THE IMPORTAT ION OF RAILWAY 
EQUIPMENT AND PARTS THEREOF  
AB-2018-7 
Report of the Appellate Body  
Addendum  
This Addendum contains Annexes A to C to the Report of the Appellate Body  circulated as  document  
WT/DS499/AB/R . 
 
The Notices of Appeal  and Other Appeal and the executive summaries of written submissions 
contained in this Addendum are attached as they were received from the participants and third 
participants. The content has not been revised or edited  by the Appellate Body, except that 
paragraph and footnote numbers that did not start at 1 in the original may have been renumbered 
to do so, and the text may have been formatted in order to adhere to WTO style. The executive 
summaries do not serve as subs titutes for the submissions of the participants and third participants 
in the Appellate Body's examination of the appeal.  
 
 
_______________  
 WT/DS499/AB/R/Add.1  
 
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LIST OF ANNEXES  
ANNEX A  
NOTICES OF APPEAL  AND OTHER APPEAL  
Contents  Page  
Annex  A-1 Ukraine 's Notice of Appeal  4 
Annex  A-2 Russia 's Notice of Other Appeal  5 
ANNEX B  
ARGUMENTS OF THE PARTICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Ukraine 's appellant's submission  10 
Annex  B-2 Executive summary of Russia 's other appellant's submission  13 
Annex  B-3 Executive summary of Russia 's appellee's submission  17 
Annex  B-4 Executive summary of Ukraine 's appellee's submission  21 
ANNEX C  
ARGUMENTS OF THE THI RD PA RTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Canada 's third participant's submission  25 
Annex  C-2 Executive summary of the European Union 's third participant's submission  26 
Annex  C-3 Executive summary of Japan 's third participant's submission  27 
 
 
 WT/DS499/AB/R/Add.1  
 
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  ANNEX  A 
NOTICES OF APPEAL  AND OTHER APPEAL  
Contents  Page  
Annex  A-1 Ukraine 's Notice of Appeal  4 
Annex  A-2 Russia 's Notice of Other Appeal  5 
 
 WT/DS499/AB/R/Add.1  
 
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  ANNEX  A-1 
UKRAINE 'S NOTICE OF APPEAL * 
Pursuant to Article 16.4 of the DSU Ukraine hereby notifies to the Dispute Settlement Body its 
decision to appeal to the Appellate Body certain issues of law covered in the Panel Report and certain 
legal interpretations developed by the Panel in the disput e Russia – Measures Affecting the 
Importation of Railway Equipment and Parts thereof (WT/DS499/R). Pursuant to Rule 20(1) of the 
Working Procedures for Appellate Review, Ukraine simultaneously files this Notice of Appeal with the 
Appellate Body Secretariat .  
For the reasons to be further elaborated in its submissions to the Appellate Body, Ukraine appeals, 
and requests the Appellate Body to reverse the findings, conclusions and recommendations of the 
Panel, with respect to the following errors contained in the Panel Report:1  
a. the Panel failed to make an objective assessment of the matter before it due to the 
incorrectly applied standard and order of review , burden of proof partially allocated to the 
parties, biased review of the arguments,2 and therefore violated Article 11 of the DSU 
which resulted in finding that there was no systematic prevention of Ukrainian railway 
products from being imported into the Russian Federation. Thus, Ukraine requests the 
Appellate Body to reverse the relevant  Panel's findings in paragraphs 7.960, 7.965, 7.972, 
7.974, 7.993, 7.994, 7.995 and 8.1 (e) of its Report;  
b. the Panel failed to make an objective assessment of the matter before it  due to burden of 
proof partially allocated to the parties and the incorrect standard of review,3 and therefore 
violated Article 11 of the DSU which resulted in finding  that Ukraine did not establish that 
the situation in Ukraine was comparable in the meaning of Article 5.1.1 of the 
TBT Agreement. Thus, Ukraine requests the Appella te Body to reverse the relevant Panel's 
findings  in paragraphs 7.393, 7.394 and 8.1. b( i), c(i) of its Report ; 
c. the Panel failed to make an objective assessment of the matter before it  due to burden of 
proof partially allocated to the parties and the incorr ect standard of review ,4 and therefore 
violated Article 11 of the DSU which resulted in finding  that there were no less 
trade -restrictive alternatives available to the Russian Federation, in the meaning of 
Article  5.1.2 of the TBT Agreement, instead of sus pension of certificates and rejection to 
issue new certificates. Thus, Ukraine requests the Appellate Body to reverse the relevant 
Panel's findings  in paragraphs  7.470, 7.476, 7.482, 7.537 and 8.1 (b)(ii), (c)(iii) of its 
Report; and  
d. the Panel erred in the  interpretation and application of Article 5.1.1 of the TBT Agreement 
when finding that the situation in Ukraine was not comparable to that in other countries;5 
and thus Ukraine requests the Appellate Body to reverse the relevant Panel's findings  in 
paragr aphs findings  7.387 and 8.1 (b)(i), (c)(i) of its Report.  
 
 
 
* This notification, dated 27  August  2018, was circulated to Members as document WT/DS499/6.  
 
1 Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for Appellate Review , this Notice of Appeal 
includes an indicative list of the paragraphs of the Panel R eport containing the alleged errors, without prejudice 
to the ability of Ukraine to refer to other paragraphs of the Panel Report in the context of its appeal.  
2 See, for example, Panel Report, paras.  7.969 -7.972, 7.974, 7.976.  
3 See, for example, Panel Re port, paras. 7.285, 7.336, 7.371 -7.388, 7.393 -7.394, 7.623 -7.625, 7.628.  
4 See, for example, Panel Report, paras. 7.450, 7.468, 7.470, 7.476, 7.482, 7.521 -7.544, 7.653, 7.656, 
7.671, 7.676, 7.704, 7.712, 7.718, 7.719, 7.721, 7.722, 7.226, 7.228, 7.742, 7.7 45, 7.760.  
5 See, for example, Panel Report, paras. 7.283, 7.285, 7.371 -7.388 and 7.394, 7.615 -7.616, 7.623, 
7.628.  WT/DS499/AB/R/Add.1  
 
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  ANNEX A -2 
RUSSIA 'S NOTICE OF OTHER A PPEAL * 
1. Pursuant to Article 16.4 and Article 17.1 of the DSU the Russian Federation hereby notifies 
the Dispute Settlement Body of its decision to appeal to the Appellate Body certain issues of law 
covered in the Panel Report and certain legal interpretations deve loped by the Panel in the dispute 
Russia – Measures Affecting the Importation of Railway Equipment and Parts Thereof  (WT/DS499) 
("Panel Report"). Pursuant to Rule 23(1) of the Working Procedures for Appellate Review 
(WT/AB/WP/6, 16 August 2010) ("Working P rocedures") the Russian Federation simultaneously files 
this Notice of Other Appeal with the Appellate Body Secretariat.  
2. For the reasons further elaborated in its submissions to the Appellate Body, the Russian 
Federation appeals and requests the Appellate Body to reverse or modify certain issues of law 
covered in the Panel Report and legal interpretations developed by the Panel in this dispute.  
3. Pursuant to Rule 23(2)(c)(iii) of the Working Procedures the present Notice of Other Appeal 
provides an indicative  list of the paragraphs of the Panel Report containing the alleged errors of law 
and legal interpretation, without prejudice to the ability of the Russian Federation to refer to other 
paragraphs of the Panel Report in the context of its appeal.  
I.  APPEAL OF THE PANEL'S ERROR  IN INTERPRETING AND  APPLYING ARTICLE 6. 2 OF THE 
DSU IN ITS PRELIMINA RY RULING  
4. The Russian  Federation seeks review by the Appellate Body of the Panel's interpretation and 
application of Article 6.2 of the DSU in its preliminary ruling. In its examination of the 
Russian  Federation's claim on the preliminary ruling the Panel made several errors.  
5. First, the Panel erred in concluding that Ukraine's Panel Request presents the problem clearly 
under Article 6.2 of the DSU by properly linking th e measures at issue with the legal basis.  
6. Accordingly , the Russian Federation  requests that the Appellate Body:  
• find that the Panel erred in its legal analysis in paragraphs 7.40 -7.41;  
• reverse the Panel's findings in paragraphs 7.39 and 7.43.  
7. Second, the Panel erred in finding that in respect of the third measure Ukraine's Panel Request 
had identified a specific measure at issue, in particular:  
• the Panel erred by neglecting to determine the meaning of the third measure considered 
on its face; 
• the Panel failed to acknowledge that Ukraine's  written submissions confirm neither the 
words used for the description of the third measure in the Panel Request nor the Panel's 
interpretation of the third measure.  
8. Accordingly , the Russian Federation  requests that the Appellate Body:  
• find that the Panel erred in its analysis in paragraphs 7.93, 7.97, 7.98 and in its inference 
in paragraph 7.29 of its Report;  
• reverse the Panel's findings in paragraphs 7.99, 7.102 (sentences two and three), 7.103, 
and 7.1 04 of its Report;  
 
* This notification, dated 3  September  2018, was circulated to Members as document WT/DS499/7.  WT/DS499/AB/R/Add.1  
 
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  9. Third, the Panel erred in its conclusion that CU Technical Regulation 001/2011 is identified in 
the Panel Request with the sufficient degree of precision to embody the third measure.  
10. Accordingly , the Russian Federation  requests that the A ppellate Body:  
• reverse paragraphs 7.100 -7.104 and, correspondently, paragraph 7.829 (first sentence) 
of the Panel Report;  
• conclude that the third measure was not properly identified in the Panel Request to fall 
within the Panel's terms of reference.  
11. Based on the foregoing,  the Russian Federation requests that the Appellate Body  reverse the 
Panel's conclusion in paragraph 8.1(a)(i) that the Russian Federation has failed to establish that the 
Panel Request is inconsistent with Article 6.2 of the DSU.  
12. As a consequence , the Russian Federation also requests that the Appellate Body reverse the 
Panel's findings and conclusions on Ukraine's claims under Article I:1 of the GATT 1994 and 
Article  III:4 of the GATT 1994 (Sections 7.5.3 – 7.5.3.4 and 7.5.4 – 7.5.4.4, and  corresponding 
paragraphs 8.1(d)(iv) and 8.1(d)(v) of the Panel Report).  
II.  APPEAL OF THE PANEL' S ERROR IN INTERPRET ING AND APPLYING ART ICLES 6.2, 7.1, 
AND 11 OF THE DSU IN  THE PANEL'S FINDING S THAT UKRAINE'S THI RD MEASURE WAS 
WITHIN THE PANEL'S T ERMS OF  REFERENCE  
13. This part of the Russian Federation's appeal concerns several findings made by the Panel in 
the course of its analysis of the third measure, described by Ukraine in its first written submission 
("FWS"), in response to the Russian Federation's cl aim that this measure is not within the Panel's 
terms of reference. The Panel erred in its conclusion and related findings that Ukraine's third measure 
as it was described in Ukraine's FWS, determined and further modified by the Panel was within the 
Panel' s terms of reference, in particular:  
14. First, the Panel committed legal errors under Articles 6.2, 7.1 of the DSU in making the 
following findings related to its analysis of whether the measure described by Ukraine in its FWS is 
within the Panel's terms of reference:  
• any challenge to the alleged non -recognition requirement is within the Panel's terms of 
reference;  
• Ukraine's third measure concerns an alleged requirement that Russia's authorities consider 
to flow from CU Technical Regulation 001/2011; that un der that alleged non -recognition 
requirement Russia's authorities must not recognize  certificates issued to Ukrainian 
producers in other CU countries unless certain conditions are met; one such condition is 
that for certificates issued in another CU countr y to be recognized, the products covered 
by these certificates must have been produced in a CU country; the third narrative 
paragraph specifically identifies this production condition;  
• the description of the measure in Ukraine's FWS is only "somewhat" dif ferent in 
comparison with the third measure in the Panel Report;  
• Ukraine's reference to the Russian Federation's "decision" was not sufficient, in and of 
itself, for finding that the measure challenged by Ukraine is outside the terms of reference.  
15. Accordingly , the Russian Federation requests that the Appellate Body:  
• conclude that the measure described by Ukraine in its FWS as "the [alleged] decision of 
the Russian Federation not to accept in its territory the validity of the conformity 
assessment ce rtificates issued to Ukrainian producers in other CU countries" is not within 
the Panel's terms of reference;  
• reverse the Panel's findings in paragraph 7.823;  WT/DS499/AB/R/Add.1  
 
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  • modify the Panel's finding in the second sentence of paragraph 7.827 by deleting the term 
"somewh at"; 
• reverse the Panel's finding in the fourth sentence of paragraph 7.828 that Ukraine's 
reference "to Russia's 'decision' not to recognize is not sufficient justification, in and of 
itself, for finding that the measure challenged by Ukraine is outside th e terms of reference 
and not examining the evidence submitted by Ukraine in support of the third measure".  
16. As a consequence  of the finding that the third measure  described by Ukraine in its FWS was 
not within the Panel's terms of reference the Russian Fede ration requests that the Appellate Body 
reverse the Panel's findings on the existence of the measure at issue in Section 7.5.1.2 and 
particularly in paragraph 7.861 of the Panel Report.  
17. Second, with respect to the Panel's determination of the third measure  and further 
modification of its descriptions, the Panel committed legal errors under Articles 6.2, 7.1, and 11 of 
the DSU in making the following determination and findings:  
• the determination that the third measure should be referred to as "the alleged 
non-recognition requirement flowing from CU Technical Regulation 001/2011", "a general 
non-recognition requirement, which Russia's Ministry of Transport and its Federal Agency 
for Railway Transport considered to flow from CU Technical Regulation 001/2011 as  they 
interpreted it", "the general non -recognition requirement (as applied by the identified by 
the identified Russian authorities in situations where a product certified in another 
CU country had not been produced in a CU country)" ; 
• the finding that Ukraine has identified the third measure as "the alleged non -recognition 
requirement flowing from CU Technical Regulation 001/2011";  
• the finding that "the non -recognition requirement is properly before the Panel".  
18. Accordingly, the Russian  Federation requests that the Appellate Body:   
• reverse the Panel's determination in the first sentence of paragraph 7.828 that the 
third measure should be referred to as "the alleged non -recognition requirement flowing 
from CU Technical Regulation 001/201 1" as well as findings in paragraphs 7.850, 7.853, 
7.854, 7.861, and 7.881 that the third measures is: "a general non -recognition 
requirement, which Russia's Ministry of Transport and its Federal Agency for Railway 
Transport considered to flow from CU Tech nical Regulation 001/2011 as they interpreted 
it" and "the general non -recognition requirement (as applied by the identified by the 
identified Russian authorities in situations where a product certified in another CU country 
had not been produced in a CU c ountry)";  
• reverse the Panel's finding in the third sentence of paragraph 7.828 that Ukraine has 
identified the third measure as "the alleged non -recognition requirement flowing from 
CU Technical Regulation 001/2011";  
• reverse the Panel's conclusion in para graph 8.1(d)(i) that "the non -recognition 
requirement is properly before the Panel".  
19. As a consequence  of the finding that the measure described by Ukraine in its FWS or "the 
non-recognition requirement" was not within the Panel's terms of reference (under the first or the 
second points in this part of the appeal), the Russian Federation also requests the Appellate Body to 
reverse the Panel's findings and conclusions on the existence of the measure at issue 
(Sections  7.5.1.2 – 7.5.1.2.1 of the Panel Report) on Ukraine's claims under Article I:1 of the 
GATT  1994 and Article  III:4 of the GATT 1994 (Sections 7.5.3 and 7.5.4 and corresponding 
paragraphs 8.1(d)(iv) and 8.1(d)(v) of the Panel Report).  WT/DS499/AB/R/Add.1  
 
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  III.  APPEAL OF THE PANEL' S ERROR IN INTERPRET ING AND APPLYING A RTICLE 11 OF 
THE DSU TO THE CIRCU MSTANCES OF THE DISP UTE  
20. First, the Panel erred under Article 11 of the DSU since it continued making findings with 
respect to the alleged registration condition and taking these findings into account after it found that 
this requirement was not within its terms of reference.  
21. Second, the Panel erred under Article 11 of the DSU since it relieved Ukraine from the 
necessity of establishing of a prima facie case  in respect to the existence of the third measure as a 
single  measure capable of being challenged under the DSU as identified in the Panel Request.  
22. Accordingly , the Russian Federation requests that the Appellate Body reverse the Panel's 
findings in respect of the third measure as contained in paragraphs 7.847, 7.849 , 7.850 (the 
third and the fourth sentences), 7.853, 7.854, 7.861, 7.897, 7.899, 7.917, 7.926 of its Report.  
23. As a consequence , the Russian Federation also requests that the Appellate Body reverse the 
Panel's findings and conclusions on Ukraine's claims und er Article I:1 of the GATT 1994 and 
Article  III:4 of the GATT 1994 (Sections 7.5.3 – 7.5.3.4 and 7.5.4 – 7.5.4.4, and corresponding 
paragraphs 8.1(d)(iv) and 8.1(d)(v) of the Panel Report).  
24. Third, the Panel erred in its finding that the third measure as de termined by the Panel exists 
by finding that the "general" non -recognition requirement flows from CU Technical 
Regulation  001/2011, and in particular:  
• the Panel erred in the assessment of the third measure as determined by the Panel by not 
examining the t ext of CU Technical Regulation 001/2011;  
• the Panel erred by neglecting to find that the assessment of CU Technical 
Regulation  001/2011 reveals the non -existence of the third measure as determined by the 
Panel.  
25. As a result, the Russian  Federation requests t hat the Appellate Body:  
• reverse the Panel's findings in paragraphs 7.823 (the second and the third sentences), 
7.846, 7.850 (the third and the fourth sentences), 7.851 to the extent that "[w]hether or 
not the Ministry and the Federal Agency had the power t o interpret CU Technical 
Regulation  001/2011 and interpreted it correctly is not relevant to [Panel] analysis"; 
7.852, 7.853, and 7.854;  
• reverse the Panel's finding in paragraph 7.861 of the Panel Report that "the third measure 
has been demonstrated to exi st" and the finding in the same paragraph that "the evidence 
on the record supports the conclusion that on the date of establishment of this Panel 
Russia's Ministry of Transport and its Federal Agency for Railway Transport applied a 
general non -recognition  requirement, which these authorities considered to flow from 
CU Technical Regulation 001/2011 as they interpreted it".  
26. Finally, should  the Appellate Body find that the Panel erred in its conclusions regarding the 
existence of the third measure, the Russia n Federation requests to reverse the Panel's findings and 
conclusions on Ukraine's claims under Article I:1 of the GATT 1994 and Article III:4 of the GATT  1994 
(Sections 7.5.3 – 7.5.3.4 and 7.5.4 – 7.5.4.4, and corresponding paragraphs 8.1(d)(iv) 
and 8.1(d )(v) of the Panel Report).  
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  ANNEX B  
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Ukraine 's appellant's submission  10 
Annex  B-2 Executive summary of Russia 's other appellant's submission  13 
Annex  B-3 Executive summary of Russia 's appellee's submission  17 
Annex  B-4 Executive summary of Ukraine 's appellee's submission  21 
 
 
 
 
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  ANNEX  B-1 
EXECUTIVE SUMMARY OF  UKRAINE 'S APPELLANT'S SUBMI SSION * 
I.  INTRODUCTION  
1. Ukraine considers that in the present dispute the Panel failed to effectively rule on the matter 
before it. Particularly, the Panel failed to execute its function under Article 11 of t he DSU with regard 
to an objective assessment of the matter before it; erred in the interpretation and application of the 
covered agreements; and, as a consequence, failed to secure a positive solution to a dispute.  
2. Realising that the threshold to establis h a panel's failure to comply with Article 11 of the DSU 
is high, Ukraine respectfully presented its Appellant Submission, providing thorough explanation and 
detailed identification the Panel's specific errors made in respect of objectivity of the assessme nt of 
the matter before it.  
3. In this Executive Summary, Ukraine will first address the Panel's failure to perform its duty 
under Article 11 of the DSU; second, Ukraine will address the Panel's erroneous interpretation and 
application of the term "in a comp arable situation" in Article 5.1.1 of the TBT Agreement.  
4. By meaning of the Notice of Appeal, Appellant Submission and this Executive Summary, 
Ukraine requests the Appellate Body to reverse the Panel's findings and conclusions, particularly as 
set out in pa ragraphs 8.1(b)(i), 8.1(b)(ii), 8.1(c)(i), 8.1(c)(iii), and 8.1(e) of its Report.  
II.  THE PANEL ERRED IN I TS APPLICATION OF TH E LAW TO THE FACT AN D IN ITS DUTY 
TO MAKE AN OBJECTIVE  ASSESSMENT OF THE M ATTER BEFORE IT UNDE R ARTICLE  11 OF 
THE DSU  
A.  The Panel failed to make an objective assessment of the systematic prevention of 
Ukrainian railway products from being imported into the Russian Federation  
5. Ukraine submits that the Panel failed to objectively assess the matter before it when 
examining the existence of the systematic prevention of importation of railway products into the 
Russian Federation in breach of Article 11 of the DSU.  
6. First, the Panel did not complete analysis under its own standard of review (first examining 
three elements necessary to establish the existence of unwritten measure, and second – specific 
elements necessary to establish systematic nature of a measure). Th e Panel, by omitting its own 
elements of the standard of review, came to the wrong conclusions with regard to the existence of 
unwritten measure first, which resulted in the completely incorrect findings with regard to the 
existence of systematic preventio n.  
7. Second, the Panel set wrongfully very high burden of proof for Ukraine to show, for instance, 
during the assessment of systematic nature of a measure, a "system, plan, or organized method or 
effort" from the Russian Federation as it could not be prescr ibed in any particular law or regulation, 
particularly due to a political nature of such decision.  
8. Third, the Panel wrongfully allocated burden of proof between the parties throughout all 
Sections of the Panel Report by (1) omitting that the Russian Feder ation presented invalid 
arguments; (2) deciding that the Russian Federation did not need to present substantial arguments; 
(3) instead putting additional burden of proof upon Ukraine by expecting it to provide more evidence. 
The specific situations are ref lected in the Appellate Submission by Ukraine.  
9. Ukraine believes that the Panel did not undertake a holistic assessment of all the evidence 
before  it, namely to allocate impartially burden of proof between the parties, to objectively assess 
 
* Word count Executive Summary: 1828. Word co unt Appellant Submission: 21378 . WT/DS499/AB/R/Add.1  
 
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  all evidence be fore and to apply correctly the standard of review which resulted in breach of  
Article  11 of the DSU.  
B.  The Panel failed to make an objective assessment of the existence of comparable 
situation in the meaning of Article 5.1.1 of the TBT Agreement  
10. Ukraine considers that the Panel failed to objectively assess the matter before it under 
Article  11 of the DSU when examining that the situation in Ukraine was not comparable to that in 
other countries, and therefore justifying the Russian Federa tion in not sending its inspectors to carry 
out inspections in Ukraine and in rejecting the relevant applications for certificates of conformity.  
11. As a complainant, Ukraine fulfilled its high burden of proof by providing complex set of 
evidence with regard to the issue of "in a comparable situation" by demonstrating that the 
Russian  Federation applied its conformity assessment procedure so as to grant access for suppliers 
of like products originating in Ukraine under conditions less favourable than those acc orded to 
suppliers of like Russian products or like products from other countries, in a comparable situation .  
12. The Russian Federation, in its turn, did not provide relevant and supportive evidence in order 
to rebut. The comparison as such was not demonstra ted by the respondent,  therefore, Ukraine was 
not in a position to rebut arguments or evidences that were not even demonstrated before the Panel.  
13. Ukraine also addresses its concerns to the standard of review applied by the Panel and finds 
that the Panel a pplied it incorrectly. The Panel findings are mostly based on the information provided 
by the Russian Federation only during the panel proceedings,  rather than on the information that 
the Russian Federation's authorities transmitted to the producers (in th e relevant applicants, the 
instructions or the cover letters at issue) during initial conformity assessment. Ukraine considers 
that aim of such information, provided by the respondent during proceedings,  is to explain the taken 
measures ex post . 
14. On this basis, Ukraine considers that the Panel's findings constitute erroneous assumption that 
cannot introduce the conclusion that Ukraine was not "in a comparable situation". The Panel failed 
to make an objective assessment of the matter before it due to b urden of proof partially allocated 
to the parties and the incorrect standard of review.  Ukraine is also of a view that this faulty approach 
to the examination of matter before the Panel in breach of Article 11 of the DSU resulted in the 
erroneous outcome o f the case.  
C.  The Panel failed to make an objective assessment of the existence of less 
trade-restrictive alternatives in the meaning of Article 5.1.2 of the TBT Agreement  
15. Ukraine submits that the Panel failed to objectively assess the matter before it under Article  11 
of the DSU when examining the availability of less trade -restrictive alternatives in the meaning of 
Article 5.1.2 of the TBT Agreement .  
16. Ukraine argues that the suspension of certificates is a more strict application of the conformity 
assessment procedures than necessary and submits that there were available other, less 
trade -restrictive manners of applying the Russian Federation's conformity assessment procedure 
such as: (1) additional communications with the relevant Ukrainian producers; (2) entrusting on -site 
inspections in Ukraine to the competent authorities from Kazakhstan and Belarus; (3) accrediting 
non-Russian inspectors, either experts or organizations, to conduct inspections in Ukraine; and 
(4) off-site inspections.1  
17. The Panel rejected all four alternatives offered by Ukraine because the Panel considered, that 
they are not, in particular, available.  
18. At the same time, the Panel's findings in this regard containing plenty of contradictory 
conclusions, for example, the Panel  concluded that there is evidence showing that the 
Russian  Federation has, in fact, recognized certificates issued by the Kazakh certification body to 
Russian producers applying through Russian entities,2 doubt the possibility of the Russian  Federation 
 
1 Panel Report, para.  7.460.  
2 Panel Report, paras. 7.927 -7.928.  WT/DS499/AB/R/Add.1  
 
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  to entrust foreign government authorities to carry out these inspection tasks when assessing the 
second alternative measure.  
19. Therefore, Ukraine believes that the Panel failed to make an objective assessment of the 
matter before it due to burden of proof parti ally allocated to the parties and the incorrect standard 
of review, and thus violated Article 11 of the DSU which resulted in finding that there were no less 
trade -restrictive alternatives available to the Russian Federation instead of suspension of certif icates 
and rejection to issue new certificates.  
III.  THE PANEL ERRED IN T HE INTERPRETATION AN D APPLICATION OF THE  TERM "IN A 
COMPARABLE SITUATION " IN ARTICLE 5.1.1 O F THE TBT AGREEMENT  
20. Ukraine submits the Panel erred in the interpretation of Article 5.1.1  of the TBT Agreement in 
a part of interpretation of the term "in a comparable situation" failing to elaborate what exactly has 
to be demonstrated and compared in respect to "in a comparable situation".  
21. Ukraine  has submitted its arguments in support of its  claims and provided a relevant 
comparison between Ukraine and, in particular, the Russian Federation and European Union3 showing 
that the Ukrainian suppliers  at issue and suppliers in other countries are "in a comparable situation".  
22. Ukraine respectfully r eaffirms its position on interpretation that if the situation of suppliers  in 
one country presents common elements and is not "totally" different from the situation of suppliers 
in another country, they are to be regarded as "comparable".4 The Panel did no t conclude clearly in 
respect of what the comparison should be made, and, subsequently erred in its conclusion.  
23. First, Ukraine considers that the Panel failed to correctly elaborate and substantiate the 
analogy of legitimate objective ("protecting human l ife and health") under Article 2.2 of the 
TBT Agreement to conformity assessment under Article 5.1.1 of the TBT Agreement. Second,  the 
Panel conducted very limited own legal analysis of "in a comparable situation" and completely 
followed the lead establish ed by the respondent as a defence to make a legal analysis of the matters 
at issue under the TBT Agreement provision that has never been interpreted before which resulted 
in the main focus of the Panel's assessment on alleged safety and security situation in Ukraine.  
24. Ukraine considers that the Panel made incomplete conclusion concerning "in a comparable 
situation", which resulted in errors in Panel's findings under Article 5.1.1 of the TBT  Agreement. The 
Panel's failure to undertake this analysis in full c onstitutes legal error, erroneous assumption and 
therefore cannot introduce conclusion whether Ukraine was in a "comparable situation".  
IV.  CONCLUSION  
25. In light of this, Ukraine requests the Appellate Body to reverse the Panel's findings on all the 
aforeme ntioned issues.  
 
 
 
3 Panel Report, paras. 7.302 -7.306.  
4 Panel Report, para. 7.275, referring to Ukraine's opening statement at the first meeting of the Panel, 
paras. 44-45; second written submission, paras. 90 -93. WT/DS499/AB/R/Add.1  
 
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  ANNEX B -2 
EXECUTIVE SUMMARY OF  RUSSIA 'S OTHER APPELLANT'S  SUBMISSION  
1  THE PANEL MADE SEVER AL ERRORS OF LAW IN ITS PRELIMINARY RULI NG 
1.1  The Panel erred in its finding that the Panel Request presents the problem clearly 
under Article 6.2 of the DSU by properly linking the measures at issue with the legal basis  
1. A panel request has to plainly connect the legal basis of claims and the challenged measures. 
Yet, the P anel Request filed by Ukraine merely contains the quotation of the parts of relevant legal 
provisions with no references to corresponding measures. The matter meant by Ukraine had not 
been clear as evidenced by the discrepancy between what the Panel unders tood and what Ukraine 
argued.  
2. However, the Panel concluded that the Panel Request conforms to Article 6.2 of the DSU and, 
thus, erred in law. Had Ukraine formulated the Panel Request properly, the Panel Report would not 
have been replete with the language that leaves the room for speculations.  
1.2  The Panel erred in finding that in respect of the third measure the Panel Request had 
identified a specific measure at issue  
3. First, the Panel erred in its analysis of the third measure description in the Panel R equest. The 
legal standard under Article 6.2 of the DSU mandates a panel to begin its analysis of a measure at 
issue with an examination of the text of a panel request on its face. Contrary to that, in the present 
case the Panel disregarded how Ukraine des cribed the third measure on its face in the Panel Request 
and moved to guessing what the measure might have meant according to "contextual 
interpretation". Accordingly, the Panel (i) failed to consider what the third numbered point of the 
Panel Request mea ns when read on its face and in comparison to the other two numbered points of 
section II of the Panel Request; (ii) ignored the contextual importance of the introductory phrase 
before the list of three numbered points that specifically identifies measures  at issue; and, as a 
consequence, (iii) read in additional meaning otherwise not found in the plain language of the Panel 
Request.  
4. Moreover, the legal standard under Article 6.2 of the DSU allows a panel to consult 
submissions and statements made during t he panel proceedings to confirm the meaning of the words 
used in a panel request. However, the Panel failed to do so and, thus, ignored the fact that Ukraine's 
written submissions confirm neither the words used for the description of the third measure in t he 
Panel Request, nor the Panel's interpretation of the third measure.  
5. Second, the Panel erred in its conclusion that CU Technical Regulation 001/2011 is identified 
in the Panel Request with the sufficient degree of precision to embody the third measure in  
compliance with Article 6.2 of the DSU. CU Technical Regulation 001/2011  is a complex and lengthy 
legal instrument, addressing various questions of law requiring, thus, a higher degree of specification 
in the Panel Request to meet the requirements under A rticle 6.2 of the DSU. By indicating this 
document in the Panel Request as a whole, i.e. without referring to its particular parts, Ukraine did 
not put the Russian Federation on sufficient notice about the precise content of the third challenged 
measure.  
6. Absent the reference to the particular aspect at the core of the third measure in the Panel 
Request read on its face, the Panel erroneously applied Article 6.2 of the DSU when decided that 
CU Technical Regulation 001/2011 is sufficiently identified to be th e third measure.  WT/DS499/AB/R/Add.1  
 
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  2  THE PANEL ERRED IN I TS CONCLUSION AND RE LATED FINDINGS THAT UKRAINE'S 
THIRD MEASURE AS IT WAS DESCRIBED IN UKR AINE'S FWS, AND DETE RMINED BY THE 
PANEL WAS WITHIN THE  PANEL'S TERMS OF RE FERENCE  
7. The Panel did not fulfill the requirements o f Article 6.2 of the DSU that a complaining party 
shall identify the specific measures at issue in its request for the establishment of a panel, of 
Article  7.1 of the DSU that the Panel should examine the matter referred to the DSB by a complainant 
in its panel request, and of Article 11 of the DSU that the Panel should make an objective assessment 
of the matter before it.  
8. In particular, first, the Panel erred in several findings related to its analysis of whether the 
measure described by Ukraine in its FW S is within the Panel's terms of reference.  
9. Although, the Panel agreed with the Russian Federation that the third measure as described 
by Ukraine in its FWS differs from the description provided by Ukraine in the Panel Request, it 
nevertheless went on in its analysis without giving importance to the  text of the Panel Request itself 
(by ignoring the introductory phrase in the fourth paragraph and not examining how specific terms 
in the description of the measures define and limit the scope of the dispute) and to the difference 
between the Panel Reques t and how the third measure appears in Ukraine's FWS.  
10. The textual analysis and comparison of the measures described by Ukraine in its FWS with the 
third measure identified in the Panel Request reveal that these measures are different by description, 
nature , coverage, and content. In fact, in its FWS Ukraine challenges three  different measures 
(two of which were described as having two additional requirements), which are put forward in 
different parts of its FWS depending on a particular claim. However, neit her of those three measures 
and two requirements coincide with the third measure as identified in the Panel Request. A measure 
that was not explicitly identified in the Panel Request as the "specific measure at issue" should not 
be accepted as the measure at issue within the Panel's terms of reference.  
11. Second, the Panel erred in its determination that the third measure should be referred to as 
"the alleged non -recognition requirement flowing from CU Technical Regulation 001/2011" and in its 
further modific ations of the description of the third measure, as well as in its findings that this 
measure was identified by Ukraine, and that this measure is properly before the Panel for the 
following reasons.  
12. The Panel's determination that it would refer to the challenge d measure as "the alleged 
non-recognition requirement flowing from CU Technical Regulation 001/2011" constitutes a 
modification of the description of the measure identified in the Panel Request. The text of the Panel 
Request does not support the r eading of the third measure by the Panel.  
13. The Panel's finding that it was Ukraine who had identified the third measure as "alleged 
non-recognition requirement flowing from CU Technical Regulation 001/2011" also finds no textual 
support. Accordingly, the P anel's finding that "the non -recognition requirement is properly before 
the Panel" is an error. By modifying at the later stage in the process, what Ukraine indicated in its 
Panel Request as the third measure the Panel effectively performed the Ukraine's d uty in 
"identify[ing] the specific measure at issue". However, it is not the Panel's role to "identify" the 
measure at issue. Under Article 6.2 of the DSU it is the responsibility of the complaining party to 
correctly and precisely identify the specific me asure at issue and then to prove its existence and the 
violation it alleges. And it is the obligation of the Panel to base its interpretation and findings on the 
measure as identified by a complainant provided that the measure is within panel's terms of 
reference.  
14. By making a finding on a measure that was not challenged by Ukraine in its Panel Request 
(the alleged " general non -recognition requirement…" ) the Panel exceeded its mandate and, thus, 
acted inconsistently with Articles 7.1 and 11 of the DSU. The P anel's modification of the measure at 
issue also prejudiced the due process rights of the Russian Federation that are guaranteed under 
Article 6.2 of the DSU. Furthermore, the finding that the measure described by Ukraine in its 
FWS falls outside the Panel 's terms of reference would logically imply that the Panel failed to 
objectively assess under Article 11 of the DSU whether Ukraine established a prima facie case with 
respect to the third measure as identified in the Panel Request.  WT/DS499/AB/R/Add.1  
 
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  3  THE PANEL ERRED UNDE R ARTICLE 11 OF THE DSU SINCE IT CONTINU ED MAKING 
FINDINGS WITH RESPEC T TO THE ALLEGED REG ISTRATION CONDITION AND TAKING 
THESE FINDINGS INTO ACCOUNT AFTER IT FOU ND THAT THIS REQUIRE MENT WAS NOT 
WITHIN ITS TERMS OF REFERENCE  
15. The Panel found that a registrat ion condition (non -recognition resulting from a failure to meet 
the alleged registration condition) falls outside its terms of reference. However, this finding did not 
prevent the Panel from repeatedly considering this condition as if this element of the t hird measure 
as determined by the Panel had been within the Panel's terms of reference.  
16. Without prejudice to its claims on appeal on other issues, the Russian Federation submits that 
the Panel by doing so erred under Article 11 of the DSU.  
4  THE PANEL ERR ED UNDER ARTICLE 11 OF THE DSU SINCE IT RELIEVED UKRAINE FRO M 
THE NECESSITY OF EST ABLISHING OF A PRIMA FACIE CASE  IN RESPECT TO THE 
EXISTENCE OF THE THI RD MEASURE AS A SING LE MEASURE CAPABLE O F BEING 
CHALLENGED UNDER THE  DSU AS IDENTIFIED I N THE PANEL REQU EST 
17. As evident from its submissions, Ukraine considered the third measure to be composed of 
several different documents. Consequently, Ukraine had to but failed to make a prima facie  case to 
demonstrate the existence of this measure by explaining that its components jointly operate as a 
single measure distinct from its parts.  
18. Without prejudice to the Russian Federation's claims on appeal on other issues, the Panel 
erred under Article 11 of the DSU when neglected this Ukraine's omission and proceeding from an 
unsubstantiated presumption about the existence of the said single measure.  
5  THE PANEL ERRED IN I TS FINDING THAT THE THIRD MEASURE AS DET ERMINED BY THE 
PANEL EXISTS BY FIND ING THAT THE "GENERA L" NON -RECOGNITION R EQUIREMENT 
FLOWS FROM CU TECHNI CAL REG ULATION 001/2011  
19. While analyzing the third measure (as determined by the Panel) the Panel did not explain the 
standard it used for the analysis even though it affirmed that the third measure was challenged 
"as such". Furthermore, the Panel did not consider  the text of CU Technical Regulation 001/2011 
whereas 1) CU Technical Regulation 001/2011 is explicitly named in the description of the 
third measure in the Panel Request; 2) the Russian Federation submitted references to provisions 
of CU Technical Regulat ion 001/2011 and corresponding arguments on its application based on that 
text.  
20. In order to conclude that the non -recognition requirement "flows" from CU Technical 
Regulation 001/2011 it should be established first of all that the text of CU Technical 
Regulation  001/2011 includes such a requirement.  
21. Had the Panel analyzed the text of CU Technical Regulation 001/2011, it would have found 
that according to its Article 1 it applies to products manufactured in third countries.  
22. This understanding of Article 1 of CU Technical Regulation 001/2011 follows from its text and 
is supported by the practice of issuance of certificates to producers from third countries and for 
products manufactured in third countries, the examples of which the Russian Federation has 
subm itted during the Panel proceedings. This understanding is further substantiated by the wording 
of Article 53(2) of the EAEU Treaty.  
23. The Russian Federation submitted all these observations during the Panel proceedings. Yet, 
the Panel did not consider argume nts labelling them as not relevant. Had the Panel examined the 
text of CU Technical Regulation 001/2011 and the supporting arguments, it would have found the 
absence of the alleged non -recognition requirement.  
24. Since the alleged non -recognition requirement  does not flow from CU Technical 
Regulation  001/2011, the Panel falsely concluded that the said non -recognition requirement was of 
a general character.  WT/DS499/AB/R/Add.1  
 
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  25. The improper examination of the third measure, identified by Ukraine in its Panel Request, 
resulted in the Panel's failure to fulfil its obligation to make an objective assessment of the matter 
before it. The Panel disregarded arguments and evidence submitted by the Russian Federation and 
failed to analyze the text of CU Technical Regulation 001/2011 on its  face. These Panel's errors 
amount to a violation of Article 11 of the DSU.  
6  CONCLUSIONS  
26. The Russian Federation submits that the Panel erred in its application and interpretation of 
the applicable law in its preliminary ruling alongside the subsequent a nalysis regarding the 
third measure in its Report as outlined above and, consequently, requests the Appellate Body to 
reverse the corresponding findings of the Panel.  
 
 WT/DS499/AB/R/Add.1  
 
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  ANNEX B -3 
EXECUTIVE SUMMARY OF  RUSSIA 'S APPELLEE'S SUBMIS SION 
1  INTRODUCTION  
1. At the outset the Russian Federation notes that Ukraine's argumentation throughout its 
Appellant Submission is nothing but a repetition of its position during the Panel's proceedings lacking 
any explanation as to why the alleged flaws in the P anel's reasoning amount to a violation of 
Article  11 of the DSU. The mere repetition of the previous position renders the Appellant Submission 
of Ukraine effectively equal to the request to substitute the Panel in its original review, that is, to 
consider the respective claims de novo.  Bearing this in mind, the Russian Federation demonstrates 
in its Appellee's Submission that Ukraine's claims on appeal should be dismissed.  
2  THE PANEL MADE AN OB JECTIVE ASSESSMENT O F THE EXISTENCE OF T HE ALLEGED 
SYSTEMATIC IMPORT PREVENTION  
2. Contrary  to Ukraine's  assertion,  the text of the Panel  Report  confirms  that the Panel  started  
its analysis  by establishing  the content  of the measure  at issue in order  to establish  the existence  of 
the alleged  unwritten  measure.1 Article  11 of the DSU does not prescribe  a panel  the precise  order  
of analysis  to make  an objective  assessment  of the matter.  In any way, the examination  of the 
alleged  unwritten  measure  in another  order  of analysis  would  have resulted  in the same  conclus ion, 
i.e. that the alleged  measure  does not exist.  Thus, the Panel did not commit an error, let alone  an 
error so serious  as to cast doubt  on the objectivity  of the Panel's  analysis  as required  under  the 
Article  11 of the DSU. 
3. Ukraine  falsely  contends  that the Panel  did not thoroughly  examine  all the evidence  submitted  
by Ukraine  and did not make  an objective  assessment  of this evidence  and substantiating  arguments.  
Having  done all that, the Panel  came  to the conclusion  that "Ukraine  has failed  to demonstra te that 
Russia  systematically  prevented  the importation  of Ukrainian  railway  products  into Russia ".2 In 
particular,  the Panel  examined  the evidence  submitted  by Ukraine  in respect  of the alleged  "set of 
trade  restrictive  measures"  as indicated  in footnote  762 to paragraph  7.973  of the Panel  Report.  The 
media  articles  presented  by Ukraine  contain  no indication  of, or even a hint at, the fact that the 
Russian  Federation  has approved  a plan to restrict  imports  from Ukraine  in general  or that of railway  
product s specifically .  
4. Ukraine's  assertion  that "the Panel  took an approach  when  the review  of any individual  
measure  had been conducted  in isolation  from other  measures  at issue,  without  referring  to the 
context  of the case"  is baseless.  The Panel  clearly  expla ined in paragraph  7.230  of the Report  the 
rationale  behind  the order  of analysis  of Ukraine's  claims  and did it in full conformity  with the 
requirements  of Article  11 of the DSU.  
5. Ukraine's  allegation  that "the Panel  proved  to be partial  in its considerati on of facts"  is also 
without  merit.  It is clear from paragraph  7.960  of the Panel  Report  that, as the trier of facts and 
acting  in compliance  with the requirement  of Article  11 of the DSU, the Panel  examined  all the 
evidence  submitted  by the parties  and concluded  that it was "not persuaded  that the applications  
unjustifiably  rejected  by the FBO ... are proof that the FBO used its powers  with the aim or as part 
of a plan directed  at preventing  the importation  of Ukrainian  railway  products  into Russia".3 Thus,  
Ukraine  fails to establish  that the Panel  committed  any error,  let alone  an error so serious  as to cast 
doubt  on the objectivity  of the Panel's  analysis  as required  under  the Article  11 of the DSU. The 
Panel  Report  also confirms  that Ukraine  in any way failed  to prove  that the alleged  systematic  
prevention  is different  from its components  and failed  to provide  evidence  as to how exactly  the 
elements  of this measure  operate  together  as a single  measure.  Thus,  Ukraine's  allegation  that the 
 
1 Panel Report,  Russia – Railway Equipment , Section 7.6.1.2.  
2 Panel Report, Russia – Railway Equipment , para. 7.993.  
3 Panel Report,  Russia – Railway Equipment , para. 7.960.  WT/DS499/AB/R/Add.1  
 
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  Panel  applie d "a highly  uneven  burden  of proof"  is legally  flawed.  The complainant  must prove  its 
claim.   
6. Ukraine  argues  that "in order  to ensure  correct  and comprehensive  assessment  of the matter  
before  it, the Panel  should  have considered  a recourse  to Article  13 of the DSU".  Actually,  Ukraine's  
position  is that the Panel  failed  to have recourse  to Article  13 of the DSU despite  the fact that the 
information  was necessary  for Ukraine  to make  a prima  facie case. First, however,  in the course  of 
the panel  proceedings  Ukraine did not request  for production  of information  under  Article  13 of the 
DSU. Second,  and most importantly,  according  to the Appellate  Body,  panels  are precluded  from 
using  their authority  under  Article  13 in order  "to rule in favor of a complaining  party which  has not 
established  a prima  facie case of inconsistency  based  on specific  legal claims  asserted  by it".4 
Therefore,  by abstaining  from requesting  information  under  Article  13 of the DSU, the Panel  acted  
in full compliance  with the requirements  under Article  11 of the DSU.  
7. Nevertheless,  if the Appellate  Body finds that Ukraine's  claims  are substantiated  and the Panel  
made  specific  errors  under  Article  11 of the DSU – quad non – this will not affect  the overall  
conclusions  by the Panel  made  in paragraphs  7.993,  7.994,  7.995  and 8.1.(e)  of the Report.   
3  THE PANEL'S CONCLUSI ON THAT UKRAINE FAIL ED TO ESTABLISH THAT  THE RUSSIAN 
FEDERATION ACTED INC ONSISTENTLY WITH ITS  OBLIGATIONS UNDER AR TICLE 5.1.2 OF 
THE TBT AGREEMENT FU LLY COMPLIES WITH TH E REQUIREMENTS UNDER  ARTICLE  11 OF 
THE DSU  
8. First, Ukraine did not provide any arguments supporting its challenge of the Panel's finding 
and conclusion in paragraph 8.1.(c)(iii) of t he Report making only an assertion alone. Thus, Ukraine's 
request to reverse the Panel's finding in paragraph 8.1.(c)(iii) shall be rejected without further 
consideration.  
9. Second, the Panel correctly rejected all four alternatives suggested by Ukraine in t he course 
of proceedings as they were not reasonably available to Russian authorities and Ukraine failed to 
prove the opposite.  
10. The Panel correctly rejected the alternative of additional communications with the relevant 
Ukrainian producers since Ukraine di d not substantiate that this alternative is reasonably available. 
The Panel correctly allocated the burden of proof and correctly established that Ukraine did not 
establish a prima facie  case to shift its burden. Ukraine did not show that this alternative is not 
a priori  prohibitive.  
11. The Panel correctly rejected the alternative of entrusting on -site inspections in Ukraine to the 
competent authorities from Kazakhstan and Belarus since it was based on a merely theoretical 
assumption of Ukraine that did not p rovide any sufficient grounds to show that this alternative is 
available.  
12. The Panel correctly rejected the alternative of accrediting non -Russian inspectors, either 
experts or organizations, to conduct inspections in Ukraine since the examination of Certif ication 
Rules together with other facts on record do not confirm that such alternative exists.  
13. The Panel correctly rejected the off -site inspections alternative since the evidence in the 
course of proceedings demonstrated the absence of this alternative. U kraine's argument on ex post  
argumentation does not stand in the case of technical regulations and conformity assessment 
proceedings. Furthermore, the issue of explanation to exporters at the time of suspension concerns 
the obligation under Article 5.2.2 o f the TBT Agreement that is not subject to appeal.  
14. Finally, Ukraine persistently seeks to engage the Appellate Body into the examination of facts 
and reargue its case settled by the Panel contrary to the purpose of the Appellate Body's proceedings 
and its mandate.  
 
4 Appellate  Body Report, Japan – Agricultural Products II , para. 129. WT/DS499/AB/R/Add.1  
 
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  4  THE PANEL MADE AN OBJECTIVE ASSESSMENT  OF THE EXISTENCE OF  A COMPARABLE 
SITUATION WITHIN THE  MEANING OF ARTICLE 5.1.1 OF THE TBT  
4.1  Panel's alleged failure to observe due process rights: determination of burden of 
proof and standard of revie w 
15. Ukraine falls short of proving that the Panel failed to observe due process rights in its 
determination of burden of proof and standard of review.  
16. Ukraine erroneously interprets the allocation of the burden of proof in the case of an alleged 
violation o f Article 5.1.1 of the TBT Agreement. First, Ukraine as a party that asserts a violation is 
responsible for providing proof thereof. The Panel as an original trier of facts found that Ukraine did 
not substantiate that the situation in Ukraine was comparabl e to that in the Russian Federation or 
in other countries. Second, the phrase "in a comparable situation" does not operate as an exception 
that the defending party may invoke to relieve itself of its obligations under Article 5.1.1 of the 
TBT Agreement. Ra ther, it forms a part of a single positive obligation and the opposite interpretation 
would lead to absurd legal consequences.  
17. Further, Ukraine's allegations regarding Panel's standard of review are unsubstantiated. First, 
in its argumentation, Ukraine es sentially seeks reassessment of facts and evidence on record, while 
re-examination of facts is excluded from the scope of appellate review under Article 17.6 of the DSU. 
Second, Ukraine's assertion that the analogy of the standard of review in safeguard in vestigations 
or customs valuation proceedings should be adopted in the present case is wrong because the 
disciplines of trade defense and technical regulation are substantially different.  
4.2  Panel's alleged non -objective assessment of a comparable situat ion 
18. Virtually all Ukraine's arguments regarding the Panel's assessment of comparable situation 
either represent or are based on repetition or extension of arguments made during the Panel 
proceedings. However, at the appellate stage, the Appellate Body does  not permit a party to the 
dispute to recast its arguments made before a panel in the guise of an Article 11 of the DSU claim. 
Moreover, Ukraine's explanation on why the alleged Panel's errors might have a bearing on the 
objectivity of the Panel's assessme nt is premised solely on its disagreement with the Panel's 
reasoning and weighing of the evidence, which does not substantiate its position regarding the 
alleged violation of Article 11 of the DSU by the Panel.  
19. With respect to "comparable situation", the R ussian Federation submits that the Panel has 
properly conducted its assessment of evidence in their totality and, therefore, acted within the 
boundaries of its obligations under Article 11 of the DSU, and Ukraine has not provided a single piece 
of evidence  proving the Panel not being objective in its assessment of facts.  
5  THE PANEL PROPERLY I NTERPRETED AND APPLI ED THE TERM "IN A CO MPARABLE 
SITUATION" IN ARTICL E 5.1.1 OF THE TBT A GREEMENT  
5.1  Ukraine's failure to argue that the Panel erred in law  
20. Ukraine asserted that the Panel erred in law by not interpreting Article 5.1.1 of the TBT in 
good faith. This is a strong indication that Ukraine in its appeal is actually bringing a claim under 
Article 11 of the DSU in the guise of a legal error. But Ukraine does  not invoke Article  11 of the DSU 
in this part and, thus, puts forward a claim based on the false legal basis. Besides, Ukraine failed to 
reason why the alleged Panel's error amounts to acting in bad faith.  WT/DS499/AB/R/Add.1  
 
- 20 - 
 
  5.2  The Panel correctly interpreted and applied the term "in a comparable situation" in 
Article 5.1.1 of the TBT Agreement  
21. As a preliminary matter, Panel's conclusion under paragraph 8.1.(c)(i) of the Report was not 
reached on grounds pertaining to the appeal under point d) of Ukraine's Notice of Appeal. 
Consequently, that paragraph is beyond this appeal scope as irrelevant to the corresponding claim.  
22. The Russian Federation submits that the Panel interpreted Article 5.1.1 in good faith by 
construing the phrase "in a comparable situation" as informe d by its context in the provision and in 
the TBT Agreement, instead of relying on an excessively literal reading of Article 5.1.1.  
23. Further, Ukraine misread the Panel Report as indicating that the Panel drew an analogy 
between Articles 2.2 and 5.1.1 of the TBT Agreement. Article 2.2 played in the Panel's respective 
analysis the role of a part of the context, along with many other legal provisions under the 
TBT Agreement, to interpret Article 2.1 that is instructive as to how no less favourable treatment 
obligations operate within the TBT Agreement. Accordingly, the link between Articles 2.2 and 5.1.1 
in Panel's analysis, if any, is too remote to consider that the Panel applied the legitimate objective 
under one to the other.  
24. By arguing that the Panel did not explain what exactly should be compared under Article 5.1.1 
of the TBT Agreement, Ukraine neglected that the degree of competent bodies' discretion in fulfilling 
their obligations under that provision cannot be described in the abstract. The question of wh ether 
the situation is comparable in a particular dispute is a question the answer to which is to be given 
on a case -by-case basis. With that in mind, the Panel arrived at the correct conclusion that "in this 
instance related to risks to life and health of  FBO inspectors ... the situation in Ukraine was not 
comparable to other countries", which is based on the proper interpretation of Article 5.1.1 of the 
TBT Agreement.5 
25. Consequently, the Panel correctly interpreted and applied the term "in a comparable sit uation" 
in Article 5.1.1 of the TBT Agreement.  
6  CONCLUSIONS  
26. For these reasons, all Ukraine's claims on appeal and requests for findings shall be rejected.  
 
 
 
5 Panel Report, Russia – Railway Equipment , para. 7.387.  WT/DS499/AB/R/Add.1  
 
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  ANNEX B -4 
EXECUTIVE SUMMARY OF  UKRAINE 'S APPELLEE'S SUBMIS SION  
THE PANEL ACTED CONS ISTENTLY WITH ARTICL E 6.2 OF THE DSU IN ITS PRELIMINARY 
RULING; AND THE PANEL DID NOT E RR IN ITS CONCLUSION  AND RELATED FINDING S 
THAT UKRAINE'S THIRD  MEASURE AS DESCRIBE D IN UKRAINE'S FIRST  WRITTEN 
SUBMISSION AND DETER MINED BY THE PANEL  WAS WITHIN THE PANE L'S TERMS OF 
REFERENCE  
1. The Russian Federation alleges that the Panel acted inconsistently with Articles 6.2, 7.1 and  11 
of the DSU because the Panel Request does not present and identify the specific measure at issue, 
and because the th ird measure is not within the Panel's terms of reference.  
2. Ukraine submits that the Panel Request met all requirements of the Article 6.2 of the DSU, in 
particular third requirement – to provide summary of the legal basis sufficient to present the problem 
clearly. When read as a whole, the Panel Request plainly connects the specific measures at issue 
with the provisions of the WTO covered agreements that those measures violate. Ukraine's 
submissions only confirmed the meaning of the words used in the Panel R equest without changing 
the gist of what is at issue.  
3. Ukraine considers that the Panel made correct examination by giving due consideration to the 
measure's meaning on its face.  
4. Thereby, Ukraine submits that the Panel Request meets the requirements of Art icle 6.2 of the 
DSU and the Panel therefore did not err in examining the measures at issue according to 
requirements of Article 7.1 of the DSU, did not exceed its mandate, and acted in consistence with 
the provisions of Article 11 of the DSU with respect t o Ukraine's claims under Articles I:1 and III:4 
of the GATT 1994.  
THE PANEL ACTED CONS ISTENTLY WITH ARTICL E 11 OF THE DSU WHEN  MAKING 
FINDINGS WITH RESPEC T TO THE REGISTRATIO N CONDITION  
5. Ukraine submits that the Panel acted according to Article 11 of the D SU when making findings 
with respect to the registration condition.  
6. The Russian Federation claims that the Panel committed legal error under Article 11 of the 
DSU since it continued making findings with respect to the registration condition and taking thes e 
findings into account after it found that this requirement was not within its terms of reference.  
7. Ukraine recalls the Panel's findings with respect to its terms of reference concerning the 
third measure as set forth in its Preliminary Ruling. With regard  to describing the third  measure the 
Panel finds that the specific measure at issue in the passage of the Panel Request is adequately 
identified in the panel request, as a whole.1  
8. The Panel noted that "… there is the reference to Annex III. It became clea r during the course 
of the proceedings that one of the instructions mentioned in Annex III identifies the alleged 
registration condition."2 
9. Moreover, in its Report the Panel asserted that it is clear from the analysis of the Panel Request 
in its Preliminar y ruling that any challenge to the alleged requirement that the Russian  Federation's 
authorities must not recognize certificates, issued in other CU countries if the certified products were 
not produced in a CU country, is within its terms of reference.3  
 
1 Preliminary ruling by the Panel of 17 July 2017, para. 2.12. 
2 Panel Report, paragraph 7.82 4. 
3 Panel Report, paragraph 7.823 . WT/DS499/AB/R/Add.1  
 
- 22 - 
 
  10. Therefore, Ukraine submits that the measure, set out in the third narrative paragraph of 
section II of the Panel Request, particularly its second element regarding registration condition, is 
within the Panel's terms of reference as determined by the Panel.   
11. Thus, Ukraine submits that the Panel made an objective assessment of the matter of the case 
in accordance with Article 11 of the DSU when taking under consideration the registration condition 
in its findings.  
THE PANEL ACTED CONS ISTENTLY WITH ARTICL E 11 OF THE DSU AS IT DID  NOT RELIEVE 
UKRAINE FROM THE NEC ESSITY OF ESTABLISHI NG A PRIMA FACIE  CASE IN RESPECT TO 
THE EXISTENCE OF THE  THIRD MEASURE  
12. Ukraine believes that the Panel did not err under Article 11 of the DSU as it did not relieve 
Ukraine from the n ecessity of establishing of a  prima facie  case in respect to the existence of the 
third measure.  
13. In order to duly demonstrate inconsistency of the challenged third measure concerning 
non-recognition of the certificates issued in other CU countries with the  Articles 2.1 and 5.1.1 of the 
TBT Agreement and Articles I:1, III:4, X:3(a) and XIII:1 of the GATT 1994, Ukraine provided a 
thorough argumentation according to well -known legal standards, establishing a prima facie  case on 
existence of the third measure.4  
14. On the basis of Ukraine's arguments the Panel correctly found the existence of third measure 
as being explicitly prescribed in the texts of the Protocols of the Ministry of Transport and the Letters 
of the Federal Railway Transport Administration of the Ministry of Transport when they are read 
together with Technical Regulation 001/2011.  
15. It is unclear how the Russian Federation concluded that the Panel relieved Ukraine from the 
necessity of establishing a prima facie  case5 if the detailed argumentation ha d been provided 
throughout proceedings.  
16. Taking into account that Ukraine established prima facie  case in respect of the third measure 
in the panel proceedings, Ukraine submits that the Russian Federation's claim that the Panel erred 
under Article 11 of th e DSU by relieving Ukraine from necessity of establishing prima  facie case fails 
on all account.  
THE PANEL DID NOT ER R IN ITS FINDING THA T THE THIRD MEASURE AS DETERMINED BY 
THE PANEL EXISTS BY FINDING THAT THE "GE NERAL" NON -RECOGNITI ON REQUIREMENT 
FLOWS FROM CU TECHNICAL RE GULATION 001/2011  
17. The Russian Federation claims that the Panel concluded that the non -recognition requirement 
flows from CU Technical Regulation 001/2011.6 The Russian Federation argues that the Panel 
wrongfully did not examine the text  of CU Technical Regulation 001/2011 and stated that if the Panel 
did so, it would reveal non -existence of the third measure. It submits that the Panel acted in violation 
of Article 11 of the DSU by not examining CU Technical Regulation 001/2011.  
18. In this respect Ukraine submits that the Russian Federation misinterpreted the Panel's 
conclusion by stating that it was the Panel's finding that the non -recognition requirement flows from 
CU Technical Regulation 001/2011.7 However, the Panel did not itself make s uch conclusion. The 
Panel explicitly stated that: "… the evidence on the record supports the conclusion that on the date 
of establishment of this Panel Russia's Ministry of Transport and its Federal Agency for Railway 
Transport applied a general non -recogn ition requirement, which these authorities considered to flow 
from CU Technical Regulation  001/2011 as they interpreted  it".8 
19. As it is apparent from the Panel's conclusion, the Russian authorities considered that the 
general non -recognition requirement flows from CU Technical Regulation 001/2011. Indeed, the 
 
4 Ukraine ’s first Written Submission, para s. 289-399. 
5 The Russian Federation Other Appellant Submission, para s. 110, 117.  
6 Other Appellant Submission of the Russian Federation, para. 123 . 
7 Other Appellant Submission of t he Russian Federation, para. 123 . 
8 Panel report, para. 7.861  (emphasis added).  WT/DS499/AB/R/Add.1  
 
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  Russian Federation's Ministry of Transport and its Federal Agency for Ra ilway Transport relied on the 
provision of CU Technical Regulation 001/2011 when establishing non -recognition requirement.  
20. Ukraine disagrees with the mentioned above claim of the Russian Federation. First, the Panel 
did examine the CU Technical Regulation 001/2011 in its Panel Report.9 The Panel made such 
examination in the amount, necessary to make an objective assessment of the matter before it in 
this regard.  
21. Second, Ukraine reiterates that with respect to the third measure it did not challeng e the 
CU Technical Regulation 001/2011 per se  as it does not require that the applicant must be registered 
in the same country as the relevant certification body.  
22. Therefore, the Russian Federation's allegation that the Panel erred under Article 11 of the DSU 
by not examining the text of CU Technical Regulation 001/2011 is false. It is irrelevant for the matter 
under this case to examine a document on existence of discriminatory provisions if such existence 
was not even alleged by complainant to take place.  
23. In this light Ukraine believes that the Panel made a correct examination of the matter before 
it as it referred to the letters of the Federal Agency for Railway Transport and the Protocol of the 
Ministry of Transport, challenged by Ukraine under third mea sure.  
24. Thus, the Panel comes to reasoned conclusion that on the date of establishment of this Panel 
the Russian Federation's Ministry of Transport and its Federal Agency for Railway Transport applied 
a general non -recognition requirement, which these autho rities considered to flow from CU Technical 
Regulation 001/2011 as they interpreted it.  
25. Ukraine believes that it is a duty of the Russian Federation to make sure that its authorities 
act within its powers and correctly interpret provisions of law. In this particular case, actual 
application and existence of the measure suggests that the Russian Federation agrees with 
interpretation and, subsequently, the decision of the Ministry of Transport and its Federal Agency 
for Railway Transport to apply the non -recognition requirement to Ukrainian  producers. On the other 
hand, if the Russian Federation argues that the relevant authorities did not correctly understand the 
CU Technical Regulation 001/2011 as it does not contain any non -recognition requirement and, 
moreover, did not have the power to interpret it in first place, then it has to abolish such decision 
as being legally unsubstantiated.  
26.  Considering the abovementioned, Ukraine submits that the Panel acted in accordance with 
Article 11 when made conclusion on existence of the third measure.  
CONCLUSION  
27. In light of all of the above, Ukraine requests the Appellate Body to uphold the Panel's findings 
on all the aforementioned issues.  
_______________  
 
 
 
9 See, for example, Panel Report, paras. 7.592 -7.595, 7.614 . WT/DS499/AB/R/Add.1  
 
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  ANNEX C  
ARGUMENTS OF THE THI RD PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Canada 's third participant's submission  25 
Annex  C-2 Executive summary of the European Union 's third participant's submission  26 
Annex  C-3 Executive summary of Japan 's third participant's submission  27 
 
 
 WT/DS499/AB/R/Add.1  
 
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  ANNEX  C-1 
EXECUTIVE SUMMARY OF  CANADA 'S THIRD PARTICIPANT 'S SUBMISSION1 
I.  ARTICLE 5.1.1 – IN A COMPARABLE SITU ATION  
A.  "In a comparable situation" qualifies the scope of the non -discrimination obligation  
1. The phrase "in a comparable situation" qualifies the scope of the non -discrimination obligation. 
If the suppliers of like products are not in a comparable situation, the non -discrimination obligation 
would not apply.  
B.  Factors to be considered in determining whether the suppliers of like products are "in 
a comparable situation"  
2. A Panel should consider the underlying objective of conformity assessment procedures to 
obtain adequate confidence that products conform with the technical regulations. Balanced with that 
objective , is the need for WTO members to extend access to conformity assessment procedures to 
as wide a variety of potential suppliers as is possible.  
C.  The protection of the health and life of conformity assessment procedure officials is 
not a consideration to balance under Article 5.1.1  
3. The threat to the lives and health of conformity assessment officials that may impede their 
ability to obtain assurance of conformity can be relevant in determining whether the situations are 
comparable.  
4. However, the protection of life and health of conformity assessment inspectors is not an 
objective that is balanced with the interests of suppliers of imported products in determining whether 
the situations are comparable. The Panel should analyse how the WTO Member is  reconciling its 
need to obtain assurance of conformity with its technical regulation, with its obligation to provide 
access of suppliers of other WTO Members to its conformity assessment procedures.  
 
 
 
1 Canada's third participant submission contains 2210 words. This Executive Summary contains 
248 words.  WT/DS499/AB/R/Add.1  
 
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  ANNEX C -2 
EXECUTIVE SUMMARY OF  THE EUROPEAN UNION 'S THIRD PARTICIPANT 'S SUBMISSION  
A.  UKRAINE'S THIRD GROUND OF APPEAL  
1. In circumstances where a party provides a text of a municipal law as evidence, if the text is 
sufficiently clear on its face, it may not be necessary to complement with evidence of practice to 
discharge the burden of making a prima facie  case.  
2. Where a WTO  Member provides for the possibility of accreditation of external experts in its 
municipal law it is plausible for a panel to conclude that this procedure is in principle available to 
that Member.  
B.  UKRAINE'S FOURTH GROUND OF APPEAL  
3. The European Union a grees with the legal standard for Article 5.1.1 TBT as set out by the 
Panel in this dispute.  
4. The Panel did not fail to elaborate and apply what exactly should be compared in the context 
of an Article 5.1.1 TBT analysis. It explained that to determine wheth er a particular situation is 
comparable, it is necessary to identify relevant factors  that render the situation comparable or not. 
This must be assessed on a case-by-case basis . 
5. The Panel did not err in applying the legal standard to the facts at issue in considering the risk 
to the life and health of employees as a relevant factor to determine whether a situation in a Member 
can be considered comparable or not.  
 WT/DS499/AB/R/Add.1  
 
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  ANNEX C -3 
EXECUTIVE SUMMARY OF  JAPAN 'S THIRD PARTICIPANT 'S SUBMISSION  
1. Contrary to the Panel's finding, Japan believes that the requirement that suppliers be "in a 
comparable situation" does not preclude or restrict the adoption of the two -step analysis under 
Article 5.1.1 because Articles 2.1 and 5.1.1 not only ha ve similar language and structure, but also  
because the same rationale for allowing legitimate regulatory distinctions applies to both provisions.  
Both conformity assessment procedures ("CAPs") and technical regulations can be used for 
legitimate purposes as well as for disguised restrictions on trade , and the sixth recital of the 
preamble of the TBT Agreement provides relevant context for Article 5.1.1 as well.  
2. Japan believes that, in addressing a claim of de facto  discrimination under Article 5.1 .1, the 
Appellate Body should undertake a "comparable situation" analysis. This analysis pursuant to the 
phrase "in a comparable situation"  should serve as a preliminary question regarding whether the 
situation of suppliers subject to conditions for granti ng access is comparable. Japan understands a 
"comparable situation"  to be a situation that is capable of being compared, which potentially 
encompasses a relatively broad range of situations.  
3. Then, if a comparable situation is found, Japan considers that th e Appellate Body should 
examine whether access to the CAPs concerned is granted for suppliers of like products under 
different conditions to the detriment of suppliers of railway products originating in Ukraine vis -à-vis 
suppliers of like products from Rus sia or any other Member.  
4. If positive, the Appellate Body should continue  to examin e whether the detrimental impact  
arising from the different conditions for access to the CAPs stems exclusively from the 
CAPs'  objective of determining whether the relevant requirements in technical regulations are 
fulfilled, rather than reflecting discrimination against the suppliers of Ukrainian products.   
 
__________