RUSSIA – MEASURES AFFECTING THE IMPORTATION OF RAILWAY EQUIPMENT AND PARTS THEREOF REPORT OF THE PANEL
Document: Addendum BCI DELETED, AS INDICATED BY [[XXX]]
Date: 30 July 2018
Document codes: WT/DS499/R/Add.1; WT/DS499/R.
Complainant: Ukraine
Respondent: Russia
Third parties: Canada, China, EU, India, Indonesia, Japan, Singapore, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 5.1.1, 5.1.2, 5.2.2, 5.2.3, 2.1  Technical Barriers to Trade (TBT)Art. I:1, III:4, X:3(a), XI:1, XIII:1  GATT 1994

RUSSIA – MEASURES AFFECTING THE IMPORTATION OF
RAILWAY EQUIPMENT AND PARTS THEREOF
REPORT OF THE PANEL
Addendum
BCI DELETED, AS INDICATED BY [[XXX]]

This addendum contains Annexes A to D to the Report of the Panel to be found in document

LIST OF ANNEXES
ANNEX A
PRELIMINARY RULING
Contents Page
Annex A-1 Preliminary Ruling by the Panel (Conclusions) A-2

ANNEX B
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex B-1 Working Procedures of the Panel B-2
Annex B-2 Additional Working Procedures concerning Business Confidential Information (BCI) B-7
ANNEX C
ARGUMENTS OF THE PARTIES
UKRAINE
Contents Page
Annex C-1 First part of the executive summary of the arguments of Ukraine C-2
Annex C-2 Second part of the executive summary of the arguments of Ukraine C-11

RUSSIAN FEDERATION
Contents Page
Annex C-3 First part of the executive summary of the arguments of the Russian Federation C-21
Annex C-4 Second part of the executive summary of the arguments of the Russian Federation C-31
ANNEX D
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex D-1 Executive summary of the arguments of Canada D-2
Annex D-2 Executive summary of the arguments of the European Union D-6
Annex D-3 Executive summary of the arguments of Indonesia D-10
Annex D-4 Executive summary of the arguments of Japan D-11
Annex D-5 Executive summary of the arguments of the United States D-16

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ANNEX A
PRELIMINARY RULING
Contents Page
Annex A-1 Preliminary Ruling by the Panel (Conclusions) A-2

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ANNEX A-1
PRELIMINARY RULING BY THE PANEL
(CONCLUSIONS)

1.1. Having carefully considered the Russian Federation's (Russia) request of 3 April 2017 for a
preliminary ruling pursuant to Article 6.2 of the DSU, Ukraine's reply of 13 April 2017, the parties'
additional comments of 18 May 2017 and 31 May 2017, as well as the parties' oral statements and
responses to the Panel's questions of 10 July 2017 and 14 July 2017, and the third parties' written
submissions of 8 June 2017, the Panel communicates its conclusions on Russia's request today, as
provided for in the revised timetable adopted by the Panel on 10 April 2017. More detailed reasons
in support of these conclusions will be provided in due course and at the latest in the Interim Panel
Report.
1.2. This Ruling, together with the more detailed reasons supporting it, will become an integral
part of the Panel's Final Report, subject to any changes that may be necessary in the lig ht of
comments received from the parties at the interim review stage.
1.3. A copy of this communication will be transmitted to the third parties for information.
2 WHETHER UKRAINE'S RE QUEST FOR THE ESTABL ISHMENT OF A PANEL F AILS TO
"PRESENT THE PROBLEM CLEARLY"
2.1. In its preliminary ruling request, Russia claims that the request for the establishment of a
panel (panel request) is inconsistent with Article 6.2 of the Dispute Settlement
Understanding (DSU) because it fails to "present the problem clearly". Under this claim, Russia
raises several distinct issues, which the Panel addresses in turn below.
2.1 Whether the panel request fails to provide the legal basis sufficient to present the
problem clearly
2.2. According to Russia, section IV of the panel request does not provid e any explanation of how
each challenged measure is allegedly inconsistent with the obligations contained in the provisions
of the covered agreements listed in that section. On this basis, Russia considers that the panel
request fails to "present the probl em clearly" with respect to all the measures described therein.
Russia therefore requests the Panel to find that the measures described in the panel request are
outside its terms of reference.
2.3. The Panel finds that, in respect of the challenged measures, t he panel request provides a
brief summary of the legal basis of the complaint sufficient to present the problem clearly.
2.2 Whether the panel request fails to identify the specific measures at issue
2.4. Russia argues that the reference to "railway products" in th e panel request is insufficient to
provide certainty as to the particular measures that Ukraine is challenging. On this basis, Russia
requests that the Panel find that all the measures described in the panel request are outside its
terms of reference.
2.5. The Panel finds that the panel request adequately identifies the specific measures at issue.

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2.3 Whether by failing to identify the like domestic products or the like products from
any other country, the panel request fails to present the problem clearly in respe ct of
the claims raised under 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
2.6. Russia argues that in order to present the problem clearly, a panel request that concerns
claims relating to the national treatment and the most-favoured nation treatment obligations must
identify, respectively, the like domestic products and the like products from any other country.
Russia considers that the panel request fails to do this. On this basis, Russia requests that the
Panel find that the claims under Articles 2.1 and 5.1.1 of the TBT Agreement as well as under
Articles I:1, III:4, X:3(a) and XIII:1 of the GATT 1994 fall outside its terms of reference.
2.7. The Panel finds that, in respect of the claims under 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, the panel request provides
a brief summary of the legal basis of the complaint sufficient to present the problem clearly.
2.4 Whether the panel request calls upon the Panel to look beyond the covered
agreements
2.8. Russia asks the Panel to confirm its understanding that measure III 1 is limited to Customs
Union "Technical Regulation No. 001/2011 'On safety of railway rolling stock'". In addition, Russia
claims that if the Panel finds that measure III includes the "Protocol of the Ministry of Transport of
the Russian Federation regarding issuance by certification authority of the Customs Union of the
certificates of conformity for products manufactured by third -countries No. A 4-3 adopted on 20
January 2015 and the instructions mentioned in Annex III" to the panel request , measure III falls
outside the Panel's terms of reference because through this measure Ukraine would be asking the
Panel to make findings under the Customs Union regulation.
2.9. The Panel finds that Russia's request for confirmation of its understanding regarding measure
III does not constitute a claim that the panel request is inconsistent with Article 6.2. The Panel
therefore need not, and does not, make a ruling under Article 6.2 in relation to this request.
2.10. As regards Russia's conditional claim that measure III falls outside the Panel's terms of
reference because it calls upon the Panel to look beyond the covered agreements, the Panel finds
that the panel request raises legal claims only under the covered agreements and that Russia's
claim is therefore unfounded.
2.5 Whether in describing measure III, the panel request fails to identify the "specific
measure at issue"
2.11. Russia argues that when describing mea sure III in the panel request, Ukraine refers to
Customs Union Technical Regulation No. 001/2011 generally, without specifying which particular
provision(s) it is challenging. In addition, Russia considers that the reference to "the instructions
mentioned in Annex III" as well as "the Protocol of the Ministry of Transport of the Russian
Federation regarding issuance by certification authority of the Customs Union of the certificates of
conformity for products manufactured by third -countries No. A 4 -3 adopted on 20 January 2015",
which Ukraine proposes to read together with the aforementioned Customs Union Technical
Regulation, does not help to identify the measure clearly. On this basis, Russia considers that the
panel request fails to adequately identify a specific measure at issue and requests that the Panel
find that this measure is outside its terms of reference.
2.12. The Panel finds that the specific measure at issue in the passage of the panel request to
which Russia refers is adequately identified in the panel request, as a whole.
2.6 Whether only section II of the panel request contains the measures challenged
2.13. Russia requests the Panel to confirm its understanding that the measures at issue are only
those covered in the fourth paragraph of section II of the panel request.

1 According to Russia's preliminary ruling request, measure III is identified in subparagraph 3) of section
II of the panel request.

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2.14. The Panel finds that Russia's request for confirmation of its understanding regarding the
measures at issue does not constitute a claim that the panel request is inconsistent with
Article 6.2. The Panel therefore need not, and does not, make a ruling under Article 6.2 in relation
to this request.
3 WHETHER UKRAINE'S PANEL REQUEST EXPANDS THE SCOPE OF THE DISPUTE
3.1. In its preliminary ruling request, Russia claims that the panel request is inconsistent with
Article 6.2 because it expands the scope o f the dispute. Under this claim, Russia raises several
distinct issues, which the Panel addresses in turn below.
3.1 Whether measures I2 and II3 expand the scope of the dispute
3.2. Russia argues that the measures described in paragraph 4 of section II (entitled "The
measures at issue") of the panel request do not correspond to the exact measures challenged in
section II (entitled "Measures at issue") of the request for consultations (consultations request).
On this basis, the Russian Federation considers that the panel request expands the scope of the
dispute and dramatically changes its essence. The Russian Federation therefore requests that the
Panel find that measures I and II are outside its terms of reference.
3.3. The Panel finds that the panel request does not e xpand the scope or change the essence of
the dispute in respect of the measures referred to by Russia.
3.2 Whether measure I, taken alone, expands the scope of the dispute
3.4. The Russian Federation argues that the description of measure I in the panel request ref ers
to a new measure that was not identified in the consultations request. In particular, the Russian
Federation considers that the reference to "systematic" in the panel request affects the nature of
the challenged measure. On this basis, the Russian Fede ration considers that the panel request
impermissibly expands the scope of the dispute.
3.5. The Panel finds that the panel request does not expand the scope or change the essence of
the dispute in respect of the measure referred to by Russia.
3.3 Whether certain aspects of measure II, taken alone, expand the scope of the
dispute
3.6. The Russian Federation argues that several references contained in the description of
measure II in the panel request were not provided in the consultations request, namely the
references to: (a) specific instructions of the FBO RC -FRT concerning the suspensions of
certificates of Ukrainian producers and identified in Annex I, (b) two of the decisions listed in
Annex II to the panel request, and (c) the communications listed in Annex III to the panel request.
On this basis, the Russian Federation considers that, since the documents listed in Annexes I, II
and III, were not mentioned in the consultations request, they constitute new measures that
impermissibly expand the scope of the dispute.
3.7. The Panel finds that the panel request does not expand the scope or change the essence of
the dispute in respect of the measure referred to by Russia.
4 OVERALL CONCLUSION
4.1. In the light of the above, none of the objections raised by Russia in its preliminar y ruling
request under Article 6.2 of the DSU lead the Panel to dismiss from its inquiry any measures or
claims set out in the panel request.

2 According to Russia's preliminary ruling request, measure I is identified in subparagraph 1) of section
II of the panel request.
3 According to Russia's preliminary ruling request, measure II is identified in subparagraph 2) of section
II of the panel request.

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4.2. This conclusion does not bear on the separate question whether the measures at issue are
inconsistent with Russia's obligations under the WTO agreements.

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ANNEX B
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex B-1 Working Procedures of the Panel B-2
Annex B-2 Additional Working Procedures concerning Business Confidential Information (BCI) B-7

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ANNEX B-1
WORKING PROCEDURES FOR THE PANEL
Adopted on 24 March 2017 and subsequently modified on 4 October 2017

1. In its 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 shall apply.
General

2. The deliberations of the Panel and the documents submitted to it shall be kept confidential
except as communicated in the Panel report. Nothing in the DSU or in these Working Procedures
shall preclude a party to the dispute (hereafter "party") from disclosing statements of its own
positions to the public. Members shall treat as confidential information sub mitted to the Panel by
another Member which the submitting Member has designated as confidential. Where a party
submits a confidential version of its written submissions to the Panel, it shall also, upon request of
a Member, provide a non -confidential summ ary of the information contained in its submissions
that could be disclosed to the public.
3. The Panel shall meet in closed session. The parties, and Members having notified their interest
in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU (hereafter
"third parties"), shall be present at the meetings only when invited by the Panel to appear
before it.
4. Each party and third party has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and third party shall have the responsibility for all
members of its own delegation and shall ensure that each member of such delegation acts in
accordance with the DSU and these Working Procedures, particularly wit h regard to the
confidentiality of the proceedings.
Submissions

5. Before the first substantive meeting of the Panel with the parties, each party shall submit a
written submission in which it presents the facts of the case and its arguments, in accordance w ith
the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the second
substantive meeting of the Panel, a written rebuttal, in accordance with the timetable adopted by
the Panel.
6. A party shall submit any request for a prel iminary ruling at the earliest possible opportunity
and in any event no later than in its first written submission to the Panel. If Ukraine requests such
a ruling, t he Russian Federation shall submit its response to the request in its first written
submission. If the Russian Federation requests such a ruling, Ukraine shall submit its response to
the request prior to the first substantive meeting of the Panel, at a time to be determined by the
Panel in light of the request. Exceptions to this procedure shall be granted upon a showing of good
cause.
7. Each party shall submit all factual evidence to the Panel no later than during the first
substantive meeting, except with respect to evidence necessary for purposes of rebuttal, answers
to questions or comments on answers provided by the other party. Exceptions to this procedure
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel
shall accord the other party a period of time for comment, as appropriate, on any new factual
evidence submitted after the first substantive meeting.
8. Where the original language of exhibits is not a WTO working language, the submitting party or
third party shall submit a translation into the WTO working language of the submission at the
same time. The Panel may grant reasonable extensions of time for the translation of such exhibits

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upon a showing of good cause. Any objection as to the accuracy of a translation should be raised
promptly in writing, no later than the next filing or meeting (whichever occurs earlier) following
the submission which contains the translation in question. Any objection shall be accompanied by a
detailed explanation of the grounds of objection and an alternative translation.
9. In order to facilitate the wo rk of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial G uide for Panel Submissions attached as
Annex 1, to the extent that it is practical to do so.
10. 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 exhibits throughout the
course of the dispute . For example, exhibits submitted by Ukraine could be numbered UKR-1,
UKR-2, etc. If the last exhibi t in connection with the first submission was numbered UKR-5, the
first exhibit of the next submission thus would be numbered UKR-6. Exhibit submitted by the
Russian Federation could be numbered RUS-1, RUS-2, etc.
Questions

11. The Panel may at any time pose questions to the parties and third parties, orally or in writing,
including prior to each substantive meeting.
Substantive meetings

12. Each party shall provide to the Panel the list of members of its delegation in advance of each
meeting with the Panel and no later than 5.00 p.m. the previous working day.
13. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite Ukraine to make an opening statement to present its case first.
Subsequently, the Panel sh all invite t he Russian Federation to present its point of view.
Before each party takes the floor, it shall provide the Panel and other participants at the
meeting with a provisional written version of its statement. In the event that
interpretation is nee ded, each party shall provide additional copies to the interpreters ,
through the Panel Secretary. Each party shall make available to the Panel and the other
party the final version of its statement, preferably at the end of the meeting, and in any
event no later than 5.00 p.m. on the first working day following the meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask each other questions or make comments, through the Panel. Each party shall have
an opportunity to orally answer these questions. Each party shall send in writing, within
a timeframe to be determined by the Panel, any questions to the other party to which it
wishes to receive a response in writing. Each party shall be invited to respond in writin g
to the other party's questions within a deadline to be determined by the Panel.
c. The Panel may subsequently pose questions to the parties. Each party shall then have an
opportunity to answer these questions orally. The Panel shall send in writing, within a
timeframe to be determined by it, any questions to the parties to which it wishes to
receive a response in writing. Each party shall be invited to respond in writing to such
questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with Ukraine presenting its statement first.
14. The second substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall ask the Russian Federation if it wishes to avail itself of the right to
present its case first. If so, the Panel shall invite the Russian Federation to present its
opening statement, followed by Ukraine. If the Russian Federation chooses not to avail
itself of that right, the Panel shall invite Ukraine to present its opening 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 statement. In the event th at

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interpretation is needed, each party shall provide additional copies to the interpreters ,
through the Panel Secretary. Each party shall make available to the Panel and the other
party the final version of its statement, preferably at the end of the meet ing, and in any
event no later than 5.00 p.m. of the first working day following the meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask questions or make comments, through the Panel. Each party shall the n have an
opportunity to answer these questions orally. Each party shall send in writing, within a
timeframe to be determined by the Panel, any questions to the other party to which it
wishes to receive a response in writing. Each party shall be invited to respond in writing
to the other party's questions within a deadline to be determined by the Panel.
c. The Panel may subsequently pose questions to the parties. Each party shall then have an
opportunity to answer these questions orally. The Panel shall send i n writing, within a
timeframe to be determined by it, any questions to the parties to which it wishes to
receive a response in writing. Each party shall be invited to respond in writing to such
questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with the party that presented its opening statement
first, presenting its closing statement first.
Third parties

15. The Panel shall invit e each third party to transmit to the Panel a written submission prior to
the first substantive meeting of the Panel with the parties, in accordance with the timetable
adopted by the Panel.
16. Each third party shall also be invited to present its views orall y during a session of this first
substantive meeting, set aside for that purpose. Each third party shall provide to the Panel the list
of members of its delegation in advance of this session and no later than 5.00 p.m. the previous
working day.
17. The third-party session shall be conducted as follows:
a. All third parties may be present during the entirety of this session.
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third
parties present at the third -party session and in tending to present their views orally at
that session, shall provide the Panel, the parties and other third parties with provisional
written versions of their statements before they take the floor. In the event that
interpretation is needed, each third party shall provide additional copies to the
interpreters, through the Panel Secretary . Third parties shall make available to the
Panel, the parties and other third parties the final versions of their statements,
preferably at the end of the session, and in any event no later than 5.00 p.m. of the first
working day following the session.
c. After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to ask the third parties questions for clarification on any
matter raised in the third parties' submissions or statements. Each party shall sen d in
writing, within a timeframe to be determined by the Panel, any questions to a third party
to which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to these questions within a deadline to be determined by the Panel.
d. The Panel may subsequently pose questions to the third parties. Each third party shall
then have an opportunity to answer these questions orally. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to t he third parties to
which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to such questions within a deadline to be determined by the Panel.

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Descriptive part

18. The description of the arguments of the parties and third parties in the descriptive part of the
Panel report shall consist of the 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
serve as a substitute for the submissions of the parties and third parties in the Panel's examination
of the case.
19. Each party shall submit , in accordance with the timetable adopted by the Panel, (i) an
integrated executive summary of the facts and arguments as presen ted to the Panel in its first
written submissions, first opening and closing oral statements and , optionally, responses to
questions following the first substantive meeting, and (ii) a separate integrated executive
summary of its written rebuttal, second o pening and closing oral statements and , optionally,
responses to questions following the second substantive meeting, in accordance with the timetable
adopted by the Panel. Each integrated executive summary shall be limited to no more than 15
pages. The Panel will not summarize in the descriptive part of its report, or annex to its report, the
parties' responses to questions.
20. Each third party shall submit an executive summary of its arguments as presented in its
written submission and statement in accordanc e with the timetable adopted by the Panel. This
summary may also include a summary of responses to questions, where relevant. The executive
summary to be provided by each third party shall not exceed 6 pages.
Interim review

21. Following issuance of the inter im report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised n o
later than at the time the written request for review is submitted.
22. In the event that no further meeting 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
request for review.
23. The interim report , as well as the final report prior to its official circulation, shall be kept
strictly confidential and shall not be disclosed.
Service of documents

24. The following procedures regarding service of documents shall apply:
a. Each party and third party shall submit all documents to the Panel by filing them via the
Digital Dispute Settlement Registry (DDSR ) by 5:00 p.m. (Geneva time) on the due
dates established by the Panel. The electronic version uploaded into the DDSR shall
constitute the official version for the purposes of the record of the dispute. Upload into
the DDSR shall also constitute electronic service on the Panel, the other party, and the
third parties.1
b. In case any party or third party is unable to meet the 5 :00 p.m. deadline because of
technical difficulties in uploading these documents into the DDSR, the party or third
party concerned shal l inform the DS Registry without undue delay with a copy to
DDSRSupport@wto.org and the other party and, where appropriate, the third parties
through the DDSR or via e-mail and provide an electronic version of all documents to be
submitted to the Panel by e-mail, including any exhibits. The e -mail shall be addressed
to DSRegistry@wto.org, the Panel Secretary, and the other party and, where

1 When a party or third party uploads a document (including exhibits) into the DDSR, in accordance with
this paragraph, it shall send a notification to the Panel, the other party, and the third parties, as appropriate,
via e-mail, identifying the document, including the number of the exhibits uploaded. The notification to the
Panel should be addressed to DSRegistry@wto.org and to the Panel Secretary. The Panel shall also notify the
parties and the third parties, as appropriate, via e-mail when it uploads a document into the DDSR.

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appropriate, the third parties. The documents sent by e -mail shall be filed n o later than
6:00 p.m. on the date due, together with the DDSR E -docket template. If the file size of
specific exhibits makes transmission by e -mail impossible, or it would require more than
five e-mail messages, owing to the number of exhibits to be filed, to transmit all of them
by e-mail, the specific large file size exhibits, or those that cannot be attached to the
first five e -mail messages, shall be filed with the DS Registry (office No. 2047) and
provided to the other party and, where appropriate, th e third parties by no later than
9:30 a.m. the next working day on a CD -ROM, DVD, or USB stick, together with the
DDSR E-docket template. In that case, the party or third party concerned shall send a
notification to the DS Registry , the Panel Secretary, the other party, and the third
parties, as appropriate, no later than 6:00 pm on the due date, via e -mail, identifying
the numbers of the exhibits that cannot be transmitted by e-mail.
c. In case any party or third party is unable to access 2 a document filed through the DDSR
because of technical difficulties, it shall promptly, and in any case no later than 5 p.m.
on the next working day after the due date for the filing of the document, inform the DS
Registrar (with a copy to DDSRSupport@wto.org), the Panel Sec retary, and the party or
third party that filed the document, of the problem by e -mail and shall, if possible,
identify the relevant document(s). The DS Registrar or the Panel Secretary will promptly
try to identify a solution to the technical problem. In the meantime, the party or third
party that filed the document(s) shall, promptly after being informed of the problem,
provide an electronic version of the relevant document(s) to the affected party or third
party by e-mail, with a copy to the DS Registry (DSRegistry@wto.org) to allow access to
the document(s) while the technical problem is being addressed. The DS Registrar or the
Panel Secretary may also provide an electronic version of the relevant document(s) by
e-mail if the affected party or third party has reason to believe that the party or third
party that filed the document(s) cannot provide the document(s) more promptly. The DS
Registrar or the Panel Secretary shall in that case copy the party or third party that filed
the document(s) on the e-mail message.
d. By 5:00 p.m. the next working day following the electronic filing, each party and third
party shall file one paper copy of all docume nts it submits to the Panel, including the
exhibits, with the DS Registry. The DS Registrar shall stamp the documents with the
date and time of the filing.
e. The Panel shall provide the parties with the descriptive part, the interim report and the
final report, as well as of other documents as appropriate, via the DDSR. When the Panel
provides the parties or third parties both paper and electronic versions of a document,
the electronic version uploaded into the DDSR shall constitute the official version for t he
purposes of the record of the dispute.
25. The Panel reserves the right to modify these procedures as necessary, after consultation with
the parties.

2 For the purposes of this paragraph, being unable to access shall be understood as (i) not being able to
see the document in the DDSR, and (ii) not being able to open or download the document from the DDSR.

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ANNEX B-2
ADDITIONAL WORKING PROCEDURES CONCERNING
BUSINESS CONFIDENTIAL INFORMATION (BCI)
Adopted on 23 March 2017

1. These procedures apply to any business confidential information ("BCI") that a party wishes
to submit to the Panel.
2. For the purposes of these procedures, BCI is defined as any information that has been
designated as such by the party submitt ing the information, that is not available in the public
domain, and the release of which would seriously prejudice an essential interest of the Member
submitting the information or of the person or entity that supplied the information to that Member.
3. No person may have access to BCI except a member of the Panel or the WTO Secretariat, an
employee of a party or third party, and an outside advisor acting on behalf of a party or third party
for the purposes of this dispute. However, an outside advisor is not permitted access to BCI if that
advisor is an officer or employee of an enterprise engaged in the production, sale, export, or
import of the products at issue or an officer or employee of an association of such enterprises.
4. A party or third party having access to BCI shall treat it as confidential, i.e. shall not disclose
that information other than to those persons authorized to have access to i t pursuant to these
procedures. Each party and third party shall have respons ibility in this regard for its employees as
well as any outside advisors used fo r the purposes of this dispute. BCI obtained under these
procedures may be used only for the purpose of providing information and argumentation in this
dispute and for no other purpose.
5. The party submitting BCI shall mark the cover and/or first page of the document containing
BCI, and each page of the document, to indicate th e presence of such information. The specific
information in question shall be placed between double brack ets, as follows: [[xx,xxx.xx]]. The
first page or cover of the document shall state "Contains business confidential information on
pages xxxxxx", and each page of the document shall contain the notice "Contains Business
Confidential Information" at the top of the page. In case of exhibits, the party submitting BCI in
the form of an Exhibit shall mark it as (BCI) next to the exhibit number (e.g. Exhibit UKR-1 (BCI),
Exhibit RUS-1(BCI)). Should the party submit specific BCI within a document which is consider ed
to be public, the specific information in question shall be placed between double brackets, as
follows: [[xx,xxx.xx]]".
6. Any BCI that is submitted in binary -encoded form shall be clearly marked with the
statement "Business Confidential Information" on a label on the storage medium, and clearly
marked with the statement "Business Confidential Information" in the binary-encoded files.
7. If a party submits a document containing BCI to the Panel, the other party or any third party
referring to that BCI in its d ocuments, including written submissions, written versions of oral
statements and documents submitted in binary -encoded form, shall mark the document and any
storage medium, and use double brackets, as set out in paragraphs 5 and 6.
8. In the case of an oral s tatement containing BCI, the party or third party making such a
statement shall inform the Panel before making it that the statement will contain BCI, and the
Panel will ensure that only persons authorized to have access to BCI pursuant to these procedures
are in the room to hear that statement.
9. If a party considers that information submitted by the other party should have been
designated as BCI and it objects to such submission without BCI designation, it shall forthwith
bring this objection to the attent ion of the Panel, the other party, and, where relevant, the third
parties. The Panel shall deal with the objection, as appropriate. The same procedure shall be

- B-8 -

followed if a party considers that information submitted by the other party with the notice
"Contains Business Confidential Information" should not be designated as BCI. Each party shall act
in good faith and exercise restraint in designating information as BCI. The Panel shall have the
right to intervene in any manner that it deems appropriate, if i t is of the view that restraint in the
designation of BCI is not being exercised.
10. The parties, third parties, the Panel, the WTO Secretariat, and any others who have access
to documents containing BCI under the terms of these Additional Working Procedures shall store
all documents containing BCI so as to prevent unauthorized access to such information.
11. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized
under these pr ocedures to have access to BCI. The Panel may, ho wever, make statements of
conclusion drawn from such information. Before the Panel circulates its final report to the
Members, the Panel will give each party an opportunity to review the report to ensure that it does
not disclose any information that the party has designated as BCI.
12. If (a) pursuant to Article 16.4 of the DSU, the Panel report is adopted by the DSB, or the
DSB decides by consensus not to adopt the Panel report, (b) pursuant to Article 12.12 of the DSU,
the authority for establishment of the Panel lapses, or (c) pursuant to Article 3.6 of the DSU, a
mutually satisfactory solution is notified to the DSB before the Panel completes its task, within a
period to be fixed by the Panel, each party and third party shall return all documents (including
electronic material and photocopies) c ontaining BCI to the party that designated such information
as BCI, or certify in writing to the Panel and the other party (or the parties, in the case of a third
party returning such documents) that all such document s (including electronic material and
photocopies) have been destroyed, consistent with the party's record-keeping obligations under its
domestic laws. The parties and third parties may, however, retain one copy of each of the
documents containing BCI for t heir archives, subject to prior written agreement of the party
having designated such information as BCI and their continued adherence to the terms of these
Additional Working Procedures. The Panel and the WTO Secretariat shall likewise return all such
documents or certify to the parties that all such documents have been destroyed. The WTO
Secretariat shall, however, have the right to retain one copy of each of the documents containing
BCI for the archives of the WTO or for transmission to the Appellate Bod y in accordance with
paragraph 13 below.
13. If a party formally notifies the DSB of its decision to appeal pursuant to Article 16.4 of the
DSU, the WTO Secretariat will inform the Appellate Body of these procedures and will transmit to
the Appellate Body any BCI governed by these procedures as part of the record, including any
submissions containing information designated as BCI under these working procedures. Such
transmission shall occur separately from the rest of the Panel record, to the extent poss ible. In the
event of an appeal, the Panel and the WTO Secretariat shall return all documents (including
electronic material and photocopies) containing BCI to the party that designated such information
as BCI , or certify to the parties that all such documents (i ncluding electronic material and
photocopies) have been destroyed, except as otherwise provided above. Following the completion
or withdrawal of an appeal, the parties and third parties shall promptly return all such documents
or certify to the parties tha t all such documents have been destroyed, taking account of any
applicable procedures adopted by the Appellate Body. The parties and third parties may, however,
retain one copy of each of the documents containing BCI for their archives, subject to prior wr itten
agreement of the party having designated such information as BCI and their continued adherence
to the terms of these Additional Working Procedures.

- C-1 -

ANNEX C
ARGUMENTS OF THE PARTIES
UKRAINE
Contents Page
Annex C-1 First part of the executive summary of the arguments of Ukraine C-2
Annex C-2 Second part of the executive summary of the arguments of Ukraine C-11

RUSSIAN FEDERATION
Contents Page
Annex C-3 First part of the executive summary of the arguments of the Russian Federation C-21
Annex C-4 Second part of the executive summary of the arguments of the Russian Federation C-31

- C-2 -

ANNEX C-1
FIRST PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE
BCI DELETED, AS INDICATED BY [[XXX]]
I. INTRODUCTION
1. Prior to 2014, Ukrainian producers of railway products were obtaining mandatory conformity
assessment certificates ( "certificates") from the relevant auth orities in the Russian Federation –
the Federal Budgetary Organization "Register of Certification on the Federal Railway Transport "
(FBO "RC FRT"). These certificates enabled them to export their railway products to the Russian
Federation and to place them on the Russian market.
2. Since 2014, however, the Russian Federation started suspending valid certificates that had
been issued to producers of Ukrainian railway products in a systematic manner and without
providing any legitimate reason. The Russian Federation also started systematically refusing to
issue new certificates, rejecting applications submitted by Ukrainian producers or returning them
without consideration. In addition, certificates issued by the authorities of other Customs Union
("CU") countries were not recognized by the authorities of the Russian Federation.
3. Ukraine therefore challenges the following three groups of measures:
- First, the systematic prevention of Ukrainian railway products from being imported into the
Russian Federati on by suspending the valid certificates, by refusing to issue new
certificates and by not recognizing the certificates issued by the competent authorities of
other CU countries;
- Second, the suspensions of certificates and the rejections of new applicatio ns for
certificates, as listed in Annexes I and II to the panel request; and
- Third, the decision of the Russian Federation not to accept in its territory the validity of the
certificates issued to Ukrainian producers in other CU countries found in the Pr otocol of the
Ministry of Transport of the Russian Federation No. A 4 -3 and the individual decisions of
the Federal Agency for Railway Transport listed in Annex III to the panel request.
II. CLAIMS CONCERNING TH E SYSTEMATIC PREVENT ION OF UKRAINIAN RAI LWAY
PRODUCTS FROM BEING IMPORTED INTO THE RUSSIAN FEDERATION
A. The Measure at Issue
4. The first measure that Ukraine challenges is the systematic prevention of Ukrainian railway
products from being imported into the Russian Federation. The prevention of Ukrainian railway
products from being imported into the Russian Federation consists of t he action by the Russian
Federation of making it impracticable for Ukrainian railway products to be imported into the
Russian Federation. This action occurs by way of suspension of valid certificates issued to
Ukrainian producers, refusal to issue new cert ificates to Ukrainian producers and non -recognition
of valid certificates issued by the competent authorities of other CU countries.
5. This measure is of a "systematic" nature. The Appellate Body in Argentina – Import
Measures defined the meaning of a me asure that has "systematic application" as a measure that
does not have "sporadic unrelated applications". The panel in Russia – Tariff Treatment stated that
the dictionary definitions of "systematic" indicate that this word denotes "something that is done
according to a system, plan or organized method ". That panel added that it may "be possible to
infer the existence of a system where the observed repetition is so substantial as to render it more
likely than not that an underlying system, plan, organized method or effort exists."

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6. Ukraine established that Ukrainian railway producers currently hold 83% fewer certificates
issued by the Russian Federation than they held in 2013 before the start of the systematic
prevention. This has led the number of Ukrai nian producers exporting to the Russian Federation to
drop by 86%. In light of these figures, it is justified to infer that the prevention of Ukrainian
products from being imported into the Russian Federation is based on an underlying organized
effort put in place by the Russian Federation and is therefore systematic.
7. Moreover, the "systematic" nature of the Russian Federation’s measure is further supported
by the fact that this measure is achieved by all possible means, that it applies to substantially all
Ukrainian producers and that it is part of a set of trade restrictive measures taken by the Russian
Federation in connection with the conclusion by Ukraine of an Association Agreement with the
European Union, which provides for the creation of an EU – Ukraine Deep and Comprehensive Free
Trade Area/DCFTA.
B. The Claims
8. Ukraine submits that through this measure, the Russian Federation violates Articles I:1, XI:1
and XIII:1 of the GATT 1994.
1. Claim under Article I:1 of the GATT 1994
9. Ukraine submits that the Russian Federation violates Article I:1 of the GATT 1994 because,
through the systematic prevention of railway products of Ukrainian origin from being imported into
the Russian Federation, the Russian Federation does not immediately and unconditi onally grant to
railway products originating in Ukraine the advantage it grants to like products originating in other
WTO Members.
10. Four elements must be demonstrated to establish an inconsistency with Article I:1. First, the
measure at issue must fall within the scope of Article I:1. The systematic prevention of Ukrainian
railway products from being imported into the Russian Federation is a measure covered by
Article I:1 as it is a rule in connection with importation. More specifically, it is a principle regulating
the importation of Ukrainian railway products since, according to this principle, the Russian
Federation prevents Ukrainian railway products except those produced in certain areas of Ukraine
from being imported into the Russian Federation by a ny means. Hence, in light of the broad
interpretation to be given to the term "rules", the systematic prevention falls within the scope of
Article I:1 as a rule in connection with importation.
11. Second, the measure must grant an "advantage, favour, priv ilege or immunity ". The
advantage granted by the measure at issue is the opportunity for the railway products from other
countries to be imported into the Russian Federation, as a consequence of the certificates issued
by the Russian authorities for these products.
12. Third, the products concerned must be "like products". In Argentina – Hides and Leather ,
the panel recognized that where a measure does not distinguish on the basis of the physical
characteristics or end -uses of the products, but instead on the basis of factors which are not
relevant to the definition of likeness, the products may be presumed to be like. The measure at
issue does not distinguish between products based on the physical characteristics or end -uses of
the products but on the basi s of their origin. It follows that the products may be presumed to be
like without the need to conduct a detailed likeness analysis.
13. Fourth, it must be demonstrated that the advantage granted by the measure is not accorded
"immediately" and "unconditionally" to like products originating in the territory of all Members. As
only Ukrainian railway products have lost the opportunity to be imported into the Russian
Federation, the advantage – in the form of the opportunity to export railway products to the
Russian Federation – is not accorded immediately and unconditionally to Ukrainian railway
products as it is to railway products originating in countries other Ukraine.
14. In conclusion, by systematically preventing Ukrainian railway products from being imp orted
into the Russian Federation, the Russian Federation grants an advantage to railway products
originating in countries other than Ukraine which is not granted immediately and unconditionally to
Ukrainian railway products, since the railway products ori ginating in such other countries can be
imported into and placed on the Russian market on the basis of the certificates issued by the

- C-4 -

Russian authorities while Ukrainian railway products cannot, there by violating Article I:1 of the
GATT 1994.
2. Claim under Article XI:1 of the GATT 1994
15. Ukraine submits that the systematic prevention of Ukrainian railway products from being
imported into the Russian Federation violates Article XI:1of the GATT 1994 because it prohibits or
restricts the importation of Ukrainian railway products.
16. First, the measure falls within the scope of Article XI:1, which refers broadly to any
"measure" that prohibits or restricts imports or exports. Since the measure at issue constitutes a
"rule" instituted or maintained by the R ussian Federation, it a fortiori constitutes a "measure"
within the meaning of Article XI:1 of the GATT 1994.
17. Second, the measure at issue constitutes a prohibition or restriction on the importation of
railway products from Ukraine. This flows from the nature of the measure itself since it consists of
the action by the Russian Federation of making it impracticable for Ukrainian railway products to
be imported into the Russian Federation.
3. Claim under Article XIII:1 of the GATT 1994
18. Ukraine claims that the Russian Federation also violates Article XIII:1 of the GATT 1994.
Ukraine submits that prohibitions and restrictions which are inconsistent with Article XI:1 also
violate Article XIII:1, if they are not applied similarly to all third countries.
19. Since the Russian Federation systematically prevents the importation of railway products of
Ukrainian origin into the Russian Federation without similarly restricting the importation of railway
products from other third counties, the Russian Federation therefore violates Article XIII:1 of the
GATT 1994.
III. CLAIMS CONCERNING TH E INSTRUCTIONS SUSPE NDING CERTIFICATES A ND THE
DECISIONS REFUSING THE ISSUANCE OF NEW CERTIFICATES
A. The Measures at Issue
20. The second set of measures challenged by Ukraine covers the fourteen instructions listed in
Annex I to the panel request whereby the FBO "RC FRT" suspended the certificates held by five
producers of Ukrainian railway products, based on the alleged lack of conditions to unde rtake the
inspection of the certified products. It also covers the three decisions listed in Annex II to the
panel request whereby the FBO "RC FRT" refused to issue new certificates to three producers of
Ukrainian railway products, based on the impossibility of carrying out the certification procedure in
full and the alleged failure to provide documents necessary for certification.
B. The Claims
21. Ukraine submits that the instructions of the FBO "RC FRT" to suspend the certificates of the
producers of Ukr ainian railway products and the decisions to reject their applications for new
certificates, as listed in Annexes I and II to the panel request, demonstrate that the Russian
Federation applied its conformity assessment procedures in a manner that is incons istent with
Articles 5.1.1, 5.1.2 and 5.2.2 of the TBT Agreement.
22. At the outset, Ukraine notes that the Russian Federation does not challenge the existence of
these measures and the fact that they relate to the application of conformity assessment
procedures.
1. Claim under Article 5.1.1 of the TBT Agreement
23. Ukraine submits that the Russian Federation violates Article 5.1.1 of the TBT Agreement by
applying its conformity assessment procedures in a manner which grants access for suppliers of
railway products originating in Ukraine under conditions less favourable than those accorded to

- C-5 -

suppliers of like products of national origin or originating in any other country, in a comparable
situation.
24. In the present case, the FBO "RC FRT " suspended sevent y three certificates of the five
producers of Ukrainian railway products based on the alleged impossibility to carry out the
inspection control of the certified products. The information contained in the FBO "RC FRT" register
confirms that similar decisions were not taken with regard to domestic products or products from
other WTO Members which have continued to enjoy an unrestricted access to the conformity
assessment procedures in the Russian Federation.
25. It follows that by refusing to carry out the ins pections and by suspending the certificates on
this basis, the Russian authorities applied the conformity assessment procedures to suppliers of
products originating in Ukraine in a less favourable manner than that accorded to suppliers of
domestic railway products and railway products originating in other countries, thereby violating
Article 5.1.1 of the TBT Agreement.
26. Similar considerations apply to the FBO "RC FRT" decisions to reject applications for new
certificates under the CU Technical Regulations taken on the basis of the alleged impossibility of
carrying out the certification procedure in full or the alleged lack of documents necessary for the
certification. These decisions effectively denied the right of the suppliers of Ukrainian railway
products to an assessment of conformity under the rules set out in the CU Technical Regulations.
At the same time, the number of certificates issued by the FBO "RC FRT" to suppliers of domestic
railway products and suppliers of railway products originating in other countries clearly show that
they did not face the same obstacles as the suppliers of Ukrainian railway products.
27. It follows that, by refusing to carry out the certification procedure and by rejecting the
applications for new certificates, the Russian authorities applied the conformity assessment
procedures to suppliers of railway products originating in Ukraine in a less favourable manner than
that accorded to s uppliers of domestic railway products and railway products originating in other
countries, thereby violating Article 5.1.1 of the TBT Agreement.
28. Ukraine notes that, contrary to what has been argued by the Russian Federation, the
suppliers of Ukrainian railway products were "in a comparable situation " to suppliers of like
products of Russian origin or originating in any other country. Ukraine submit s that the
assessment of such "comparability" needs to be supplier -specific, meaning that the authorities
cannot generally refer to the alleged political situation of the country without examining the
situation of each specific supplier.
29. In any event, the Russian Federation’s argument that the situation in Ukraine can hardly be
compared to the situation in any other country supplying like products must be dismissed. The
Russian Federation’s argument that the inspections could not have taken place due t o the alleged
"dangerous conditions " in Ukraine is undermined by various factual elements including the fact
that, as recognized by the Russian Federation itself, producers located in certain areas of Ukraine
were able to receive certificates.
30. Ukraine further notes that the authorities of other countries performing similar functions to
that of the FBO "RC FRT" inspectors visited Ukraine during the relevant time period. The fact that
the Russian inspectors could safely travel to and within Ukraine is also confirmed by the high
number of Russian citizens who entered the territory of Ukraine in that period, including for
"official, business and diplomatic" purposes.
2. Claim under Article 5.1.2 of the TBT Agreement
31. Ukraine submits that the Russian Federa tion violates Article 5.1.2 of the TBT Agreement
because, by suspending the existing certificates and by refusing to issue new certificates on the
basis of the alleged impossibility to carry out the inspection controls or the alleged lack of the
required d ocuments, it applies its conformity assessment procedures with the effect of creating
unnecessary obstacles to international trade and more strictly than necessary in order to give itself
adequate confidence that railway products originating in Ukraine con form with the applicable
technical regulations, in the light of the risk that non-conformity would create.

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32. The instructions suspending the existing certificates did not explain the reasons why
inspections were not possible. Nor did they indicate what actions could be taken by the relevant
producers in order to allow for such inspections to take place. They also did not take into account
the possibility of conducting a remote inspection whereby railway products manufactured in
Ukraine would be sent to the Russian Federation for inspection.
33. Likewise, the decisions taken by the FBO "RC FRT" to reject applications for new certificates
simply indicated that the certification procedure could not be carried out in full or that the
company did not provide t he documents necessary for the certification, without any further
explanation or guidelines for the companies concerned. A t the same time, however, the same
certification procedure was successfully carried out by the certification bodies of Belarus and
Kazakhstan, which shows that the reasons underlying the FBO "RC FRT" decisions were unfounded.
34. Seen from the perspective of the second sentence of Article 5.1.2, the instructions to
suspend the certificates and the decisions to reject applications for ne w certificates also
demonstrate that the Russian Federation applied its conformity assessment procedures more
strictly than necessary to ensure that railway products originating in Ukraine conform with the
applicable technical regulations, taking into acco unt the risk non -conformity would create. With
respect to trade-restrictiveness of these measures, it is clear that the manner in which the Russian
Federation applied its conformity assessment procedures in the present case has a severe
restrictive effect on the imports of railway products originating in Ukraine as products covered by
the relevant instructions and decisions can no longer be placed on the Russian market.
35. Moreover, there were reasonably available less trade -restrictive measures which could have
been applied by the Russian Federation. Those measures include communicating with the relevant
producers in order to ensure conditions for carrying out the inspections and the certification
procedure in general, and the possibility to carry out remote inspections. Furthermore, the practice
of Belarus and Kazakhstan demonstrates that inspections in Ukraine were possible and were
successfully carried out by the authorities of these two countries. This indicates that another
alternative measure would ha ve been to entrust the inspections to the authorities of Belarus and
Kazakhstan. These measures would have made an equivalent contribution to assuring conformity
by allowing the FBO "RC FRT " to effectively carry out the relevant conformity assessment
procedures instead of blocking the importation of Ukrainian producers of railway products.
36. It follows that, in those circumstances, the instructions suspending the existing certificates
and the decisions rejecting the applications for new certificates were not justified. Given that
without valid certificates, railway products cannot be placed on the Russian market, by taking
these instructions and decisions, the Russian Federation applied its conformity assessment
procedures with the effect of creating unnecessary obstacles to international trade and more
strictly than necessary, thereby violating Article 5.1.2 of the TBT Agreement.
3. Claim under Article 5.2.2 of the TBT Agreement
37. Ukraine submits that the Russian Federation violates Article 5.2.2 of the TBT Agreement
because the FBO "RC FRT" did not promptly examine the completeness of the do cumentation of
Ukrainian producers applying for certificates and did not inform the applicants in a precise and
complete manner of all deficiencies and failed to transmit as soon as possible the results of its
assessment under the applicable conformity ass essment procedures in a precise and complete
manner allowing the applicants to take corrective actions, if necessary.
38. Ukraine notes that the instructions suspending the existing certificates and the decisions
refusing to issue new certificates were ext remely vague and did not contain explanations as to
which specific conditions regarding inspection control were lacking as well as indications as to the
actions that should be taken by the producers concerned. Therefore, the FBO "RC FRT" failed to
inform the applicants in a precise and complete manner of all deficiencies in their applications and
failed to transmit the results of its (preliminary) assessment in a precise and complete manner so
that corrective action may be taken if necessary.
39. The Russian Federation submits that one of the letters sent by the FBO "RC FRT" allegedly
contained very precise information as to the reasons of the impossibility to carry out the inspection
control. However, the explanation provided in that letter according to which the inspection control

- C-7 -

could not take place due to "the military operation … on the territory of Donetsk and Luhansk
regions" and the alleged restrictions on the entry to Ukraine of Russian male citizens between the
age of 16 and 60 does not stand. Furt hermore, this explanation also clearly does not place the
company in a position to know what corrective actions it could take to remedy the situation. It
follows that that letter fails to meet the standard of Article 5.2.2.
40. As to the remaining instruct ions suspending the existing certificates and decisions refusing
the issuance of new certificates, they did not provide any reasons why inspections could not take
place or why the certification procedure could not be carried out in full. The Russian Federa tion
does not dispute this fact. Indeed, the only argument made by the Russian Federation in that
regard is that "all producers asking for certification were fully aware of the relevant situation and
the reasons for the inability to conduct the inspection control". It is unclear what exactly is the
"relevant situation" to which the Russian Federation refers. In any event, pursuant to Article 5.2.2,
it is for the competent body – that is, the FBO "RC FRT" – to inform the applicants in a precise and
complete manner of all deficiencies and the result(s) of its assessment and not to assume that the
applicants are "fully aware" of the situation.
41. Finally, the decision annulling the applications for new certificates, due to the alleged failure
to provide documents necessary for certification, failed to indicate which specific documents were
missing and thus failed to inform the applicant, in a precise and complete manner, of all
deficiencies in his applications. This is particularly so given that the same applic ations were
previously accepted by the FBO "RC FRT" without any mention of the missing documents.
IV. CLAIMS CONCERNING TH E DECISION OF THE RU SSIAN FEDERATION NOT TO
ACCEPT IN ITS TERRIT ORY THE VALIDITY OF THE CONFORMITY ASSES SMENT
CERTIFICATES ISSUED TO UKRAINIAN PRODUCERS IN OTHER CU COUNTRIES
A. The Measure at Issue
42. The third measure challenged by Ukraine is the decision of the Russian Federation not to
accept in its territory the validity of the conformity assessment certificates issued to Ukrainian
producers in other CU countries. Pursuant to this measure, the Russian Federation imposes two
additional requirements, namely: (1) that only products manufact ured in the territory of the
CU may be subject to certification; and (2) that only entities registered in the same country as the
relevant certification body may apply for certification. These requirements are found in the
Protocol of the Ministry of Transport No. A 4 -3 and the decisions listed in Annex III to the panel
request which rely on Tech nical Regulation No. 001/2011. The Russian Federation uses these two
requirements as reasons for not recognizing the validity of certificates issued for railway products
of Ukrainian origin by certification bodies in other CU countries.
B. The Claims
43. Ukraine submits that the decision of the Russian Federation not to accept in its territory the
validity of the certificates issued to producers of Ukrainian railway products in other CU countries –
based on the requirements that (1) only products manufactur ed in the territory of the CU may be
subject to certification and (2) only entities registered in the same country as the relevant
certification body may apply for certification –violates Articles 2.1, 5.1.1 and 5.1.2 of the TBT
Agreement as well as Articles I:1, III:4 and X:3(a) of the GATT 1994.
1. Claim under Article 2.1 of the TBT Agreement
44. Ukraine submits that the Russian Federation’s decision not to accept in its territory the
validity of certificates issued to Ukrainian producers by certification bodies in other CU countries
violates the MFN and national treatment obligations laid down in Article 2.1 of the TBT Agreement.
45. First, the measure falls within the scope of Article 2.1 of the TBT Agreement. Pursuant to
Article 2.1, a WTO Member must ensure that no discriminatory treatment is accorded " in respect
of" technical regulations. The Russian Federation agrees that Technical Regulation No. 001/2011 is
a "technical regulation" within the meaning of the TBT Agreement. This technical regulation serves
as the basis for the Russian Federation’s decision not to accept in its territory the val idity of the
certificates issued to producers of Ukrainian railway products in other CU countries. It follows that

- C-8 -

the measure at issue is a measure "in respect of technical regulations " within the meaning of
Article 2.1 of the TBT Agreement.
46. Second, the Ukrainian railway products and the Russian railway products and railway
products originating in other countries are "like". Since the measure at issue distinguishes between
the products exclusively on the basis of the origin, Ukraine submits that railw ay products from
Ukraine must be considered as "like" railway products from the Russian Federation or any other
country.
47. Third, the measure at issue accords to Ukrainian railway products treatment less favourable
than that accorded to Russian railway products and railway products originating in other countries.
Indeed, through its decision not to recognize the validity of certificates issued to Ukrainian
producers in other CU countries, based on the requirement that only products manufactured in the
territory of the CU may be subject to certification, railway products originating in Ukraine that
comply with the requirements of Technical Regulation No. 001/2011 are denied access to the
Russian market. This decision violates Article 2.1 because it accords Ukrainian railway products
treatment less favourable than that accorded to railway products from the CU countries.
48. Furthermore, the measure at issue accords less favourable treatment to Ukrainian railway
products than to Russian railway products. Indeed, while Russian railway products can obtain
certification and the certificates obtained for those products in other CU countries are accepted as
valid, Ukrainian products are not given the same treatment.
2. Claim under Article 5.1.1 of the TBT Agreement
49. Ukraine submits that the Russian Federation violates Article 5.1.1 of the TBT Agreement
because, by requiring that only entities registered in the same country as the relevant certification
body may apply for certification, the Russian Federation appli es its conformity assessment
procedures so as to grant access for suppliers of railway products originating in Ukraine under
conditions less favourable than those accorded to suppliers of like products of national origin or
originating in any other country, in a comparable situation.
50. This requirement is based on Article 6 of Technical Regulation No. 001/2011, entitled
"conformity assessment ", which lays down procedures for mandatory certification of railway
products designed to ensure the conformity of such products with the relevant safety and technical
requirements. It follows that this requirement is subject to Article 5 of the TBT Agreement.
51. This requirement has been used by the Russian Federation in order to refuse recognizing the
validity of ce rtificates issued in Belarus for Ukrainian railway products on the basis of an
application from an entity registered in the Russian Federation. At the same time, it appears that
the Russian Federation does not apply the same requirement to assessing the va lidity of
certificates issued to Russian producers applying through a Russian registered entity in other
CU countries. It follows that, by imposing this requirement with regard to suppliers of railway
products originating in Ukraine, the Russian Federation grants access for suppliers of those
products under conditions less favourable than those accorded to suppliers of railw ay products of
national origin.
52. Moreover, the Russian authorities themselves have issued certificates to suppliers of railway
products on the basis of applications from entities registered in other CU countries.
53. As a result, the manner in which the Russian Federation applies the requirement that only
entities registered in the same country as the relevant certification body may apply for certification
is inconsistent with the national treatment and the MFN obligations imposed by Article 5.1.1 of the
TBT Agreement.
3. Claim under Article 5.1.2 of the TBT Agreement
54. Ukraine submits that the Russian Federation violates Article 5.1. 2 of the TBT Agreement
because, by requiring that only entities registered in the same country as the relevant certification
body may apply for certification, the Russian Federation applies its conformity assessment
procedures with the effect of creating unnecessary obstacles to international trade.

- C-9 -

55. This requirement implies that in order to be able to apply for conformity assessment
certificates necessary for placing their railway products on the market of the Russian Federation,
suppliers of Ukrainian railway products must establish an entity in the Russian Federation or
conclude a contract with an entity acting as a foreign supplier. This, in turn, results in the
imposition of additional costs and administrative burdens for the producers of Ukrainian r ailway
products.
56. Ukraine submits that other less trade -restrictive alternative measures were available to the
Russian Federation. In particular, the Russian Federation could have accepted that applicants
registered in the territory of other CU members may apply for certificates and that such
certificates are equally valid. Indeed, since technical requirements applicable to railway products
set out in Technical Regulation No. 001/2011 are the same throughout the CU, there is no reason
why certificates of conformity with these requirements issued in Belarus or Kazakhstan for an
entity established in the Russian Federation would not provide the Russian Federation with the
adequate confidence that the products conform with that technical regulation.
4. Claim under Article I:1 of the GATT 1994
57. Ukraine submits that the Russian Federation violates Article I:1 of the GATT 1994 because
its decision not to accept in its territory the validity of the certificates issued to Ukrainian
producers in other CU countri es is based on requirements that discriminate among like products
originating in different countries.
58. First, the measure at issue constitutes a requirement affecting the internal sale and offering
for sale of railway products because the refusal to rec ognize the validity of certificates issued in
other CU countries implies that railway products originating in Ukraine, for which such certificates
have been obtained, cannot be placed on the market of the Russian Federation. Thus, the measure
falls within the scope of Article I:1.
59. Second, the railway products originating in Ukraine and the railway products originating in
other countries must be treated as "like products" since the measure distinguishes solely on the
basis of the origin.
60. Third, the o pportunity to obtain certificates necessary for placing railway products on the
Russian market constitutes an advantage within the meaning of Article I:1 of the GATT 1994.
Therefore, the requirement that only products manufactured in the territory of the C U may be
subject to certification under Technical Regulation No. 001/2001, used by the Russian Federation
as a reason for not recognizing the certificates issued by certification bodies in other CU countries,
grants an advantage to products manufactured in the CU countries.
61. Fourth, that advantage is not granted "immediately" and "unconditionally" to like products
originating in Ukraine because the Russian Federation refuses altogether to recognize certificates
issued to Ukrainian products in other CU countries.
62. It follows that the Russian Federation’s decision not to accept in its territory the validity of
certificates issued to Ukrainian producers in other CU countries is inconsistent with the
MFN obligation under Article I:1 of the GATT 1994.
5. Claim under Article III:4 of the GATT 1994
63. Ukraine submits that the Russian Federation violates Article III:4 of the GATT 1994 because
its decision not to accept in its territory the validity of the certificates issued to Ukrainian
producers in other C U countries accords less favourable treatment to Ukrainian railway products
than the treatment accorded to like products of national origin.
64. First, as explained for the purposes of its claim under Article I:1 of the GATT 1994, the
measure at issue cons titutes a requirement affecting the internal sale and offering for sale of
railway products and railway products originating in Ukraine and Russian railway products are to
be considered as "like".

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65. According to the third measure at issue, only certific ates issued for products manufactured
in the CU to applicants located in the same country as the relevant certification body may be
recognized in the Russian Federation. This means that Russian railway producers may use
certificates obtained in other CU co untries in the Russian Federation, while this is not the case for
Ukrainian producers. Hence, the Russian Federation treats suppliers of railway products originating
in Ukraine less favourably than suppliers of domestic railway products and thus violates t he
national treatment obligation under Article III:4 of the GATT 1994.
6. Claims under Article X:3(a) of the GATT 1994
66. Ukraine submits that the Russian Federation violates Article X:3(a) of the GATT 1994
because Technical Regulation No. 001/2011 , read together with the Protocol of the Ministry of
Transport No. A 4 -3 and the decisions listed in Annex III to the panel request, has not been
administered in a uniform, impartial and reasonable manner.
67. Ukraine submits that Technical Regulation No. 001/201 1, read together with the Protocol of
the Ministry of Transport No. A 4 -3 and the decisions listed in Annex III to the panel request, falls
within the scope of Article X:1, and thus also within the scope of Article X:3(a). Technical
Regulation No. 001/2011 is a regulation affecting the sale of railway products. It affects "an
unidentified number of economic operators, including domestic and foreign producers ", and
therefore it is a measure of general application.
68. The Russian Federation applies the two a dditional requirements solely with regard to
Ukrainian railway products with certificates issued in other CU countries. It does not apply these
requirements in the same manner to products manufactured in the Russian Federation or to
products originating in countries other than Ukraine. In light of the above, Ukraine submits the
following.
69. First, Ukraine submits that the measure at issue is not administered in a uniform manner.
Indeed, the Russian Federation has granted certificates to producers located in the European Union
despite the requirement that only products manufactured in the CU may be subject to certification.
Likewise, despite the requirement that only entities registered in the same country as the relevant
certification body may apply for ce rtification, the FBO "RC FRT" granted certificates to Kazakh and
Belarusian producers applying through Kazakh and Belarusian entities and recognized certificates
issued by the Kazakh certification body to Russian producers applying through Russian entities . At
the same time, the Russian Federation refuses to recognize the validity of the certificates of
similarly situated Ukrainian producers.
70. Second, Ukraine claims that the measure at issue is not administered in an impartial
manner. Since the two requ irements are applied only with respect to products originating in
Ukraine in order to deny the validity of the certificates issued to Ukrainian railway products by
certification bodies in other CU countries, the manner in which the Russian authorities has
administered the measure has not been impartial.
71. Third, Ukraine submits that the measure at issue is not administered in a reasonable
manner. Indeed, the fact that the two requirements have been raised only in some cases but not
in others clearly shows that the measure has been administered by the Russian authorities in an
unreasonable manner in order to discriminate against railway products from Ukraine.
72. It follows that the measure has not been administered in a uniform, impartial and
reasonable manner contrary to Article X:3(a) of the GATT 1994.

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ANNEX C-2
SECOND PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE
I. THE SYSTEMATIC PREVE NTION OF UKRAINIAN R AILWAY PRODUCTS FROM BEING
IMPORTED INTO THE RUSSIAN FEDERATION (FIRST MEASURE)
A. Ukraine has shown the existence of the first measure
1. The first measure at issue is the systematic prevention of Ukrainian railway products from
being imported into the Russian Federation. This measure is unwritten. Its content is the
prevention of the i mportation of Ukrainian railway products into the Russian Federation. That
measure has a systematic character and is attributable to the Russian Federation. Ukraine has
proven the existence of each of these elements.
2. Ukraine puts forth that the systemat ic prevention of Ukrainian railway products from being
imported into the Russian Federation started gradually during the first half of 2014 and intensified
in June 2014, meaning around the time of Ukraine 's final signature of the Association Agreement
with the European Union, which provides for the creation of an EU – Ukraine Deep and
Comprehensive Free Trade Area/DCFTA.
3. Evidence showing the existence of this measure includes not only the individual decisions
listed in Annexes I to III to the panel request but also the systematic suspension of certificates,
refusals to issue new certificates and non -recognition of certificates issued in other Customs Union
("CU") countries as shown by the drastic decrease in the number of certificates held by Ukraini an
producers; the substantial decrease in imports of Ukrainian railway products into the Russian
Federation and the fact that the systematic prevention only concerns railway products originating
in Ukraine and not in other countries.
4. Under the CU Custom s Code, products cannot be released for internal consumption if they
do not comply with the applicable prohibitions and restrictions (including, among others, non -tariff
regulations such as technical regulations). Hence, documents showing compliance with a pplicable
technical regulations, meaning conformity assessment certificates, must be filed with the customs
declaration and presented to the Russian customs authorities in order to release the goods from
customs and place them on the Russian market. It fol lows that railway products cannot be
imported if no certificates are submitted at the time of importation.
5. The Russian Federation manifestly errs in alleging that the decrease in imports from Ukraine
is due to a decrease in production. In fact, the ava ilable evidence shows that production actually
decreased as a result of the first measure at issue. First, railway products are (primarily) goods
that are made to order, meaning that production only starts after an order has been placed.
Therefore, where U krainian producers are prevented from selling their products on the Russian
market due to their lack of certificates, production naturally decreases. Second, Ukrainian railway
companies have confirmed, in several public statements, that production decrease d as a result of
the measure at issue. Third, the Russian Federation wrongly argues that the decrease in
production is due to an "industrial crisis" in Ukraine, the evidence provided being irrelevant.
6. Furthermore, the Russian Federation fails to substan tiate its allegation that any increase in
the import share of European Union and Chinese railway products and the substantial decrease in
the import share of Ukrainian railway products result from the fact that "the products imported
from the [European Uni on] and China to the Russian Federation are absolutely different from the
products exported from Ukraine. " In any event, most of the products mentioned by the Russian
Federation in support of this allegation overlap with Ukrainian railway products.

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7. The systematic nature of the measure means that the prevention from importation is "done
according to a system, plan or organized method or effort " and is distinct from "sporadic,
unrelated applications of individual " measures. Ukraine has shown the systemati c nature of this
measure. First, in accordance with the panel 's findings in Russia – Tariff Treatment, in some cases
it may be possible to infer the existence of systematic activity from observed repetition, where the
repetition is so substantial as to render it more likely than not that an underlying system exists. In
this case, Ukrainian railway producers effectively held 83% fewer certificates at the date of the
establishment of the Panel than they did before the start of the systematic prevention. It fo llows
that those producers enjoyed less than one fifth of the export opportunities available to Ukrainian
producers prior to the start of the first measure at issue. Similarly, the number of producers
holding certificates dropped by 86%. Thus, less than on e fifth of the Ukrainian railway producers
could still benefit from the export opportunities. Second, Ukraine submitted other evidence
showing the existence of an underlying system, plan or organized method or effort, in particular
the fact that there exis ts "some objective connection or relationship between the identified
instances". In fact, the systematic prevention of Ukrainian railway products from importation into
the Russian Federation is achieved through all possible means. The reason given by the R ussian
authorities for suspending certificates and rejecting applications for new certificates is always the
same. Furthermore, the Russian Federation granted certificates only to producers located in
certain regions of Ukraine identified at paragraph 172 of Ukraine 's first written submission. In
addition, Ukraine has shown that the measure at issue forms part of a set of trade restrictive
measures taken by the Russian Federation in connection with the conclusion by Ukraine of the
Association Agreement with the European Union.
8. Finally, the Russian Federation wrongly alleges that Ukraine should show that all Ukrainian
exports are prevented from entering the Russian Federation and incorrectly maintains that the fact
that some Ukrainian railway products are still being imported implies that the prevention of
importation cannot be "systematic". However, the "systematic" character of a measure does not
require that importation is prevented "in each and every situation".
B. The first measure violates Article I:1 of the GATT 1994
9. The Russian Federation contests Ukraine 's claim under Article I:1 of the General Agreement
on Tariffs and Trade 1994 ( "GATT 1994") on three grounds: (i) Ukraine has not shown that the
measure at issue is a norm of general application; (ii) Ukraine has not established that Ukrainian
railway products are like railway products of third countries; and (iii) Ukraine has failed to show
that Ukrainian railway products were not granted an advantage as compared to railway products of
third countries.
10. First, the Russian Federation ignores the fact that the Panel 's examination of Ukraine 's
claims under Articles I:1, XI:1 and XIII:1 of the GATT 1994 presupposes that the Panel has
concluded that the Russian Federation 's systematic prevention of U krainian railway products from
being imported into the Russian Federation exists. If the Panel finds that the measure exists, it
concludes that the Russian Federation applies a rule in connection with importation falling within
the scope of Article I:1 of the GATT 1994. Second, if the Panel confirms that the measure exists
and therefore makes an origin -based distinction, it may be presumed, for the purposes of Article
I:1 of the GATT 1994, that the products are like. The fact that the measure at issue is an
unwritten measure does not preclude that that measure is found to make a de jure distinction
between products of different origins. Third, the Russian Federation 's argument that Ukrainian
producers did not enjoy the advantage of importation into the terri tory of the Russian Federation
due to the fact that they did not "comply with the relevant requirements of Russian law on
certification" is likewise irrelevant if the Panel concludes that the Russian Federation 's systematic
prevention of Ukrainian railway products from being imported into the Russian Federation exists.

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C. The first measure violates Article XI:1 of the GATT 1994
11. The subject of Ukraine 's claim under Article XI:1 of the GATT 1994 is the systematic
prevention of railway products originating in Ukraine from being imported into the Russian
Federation. That claim is targeted at neither the technical requirements laid down in the Technical
Regulations "On the safety of railway rolling stock " No. 001/2011; "On the high-speed rail safety"
No. 002/2011; and "On the safety of rail transport infrastructure " No. 003/2011 ( "CU Technical
Regulations") nor the individual decisions suspending certificates, rejecting applications for new
certificates or failing to recognise certificates issued in other CU countries. The Russian Federation
therefore errs in arguing that the measure is neither a restrictio n nor a prohibition "on the
importation" of goods because the requirement of a valid certificate is an internal measure
applicable to both imported and domestic railway products subject to mandatory certification
under the law applicable in the Russian Federation.
12. In that regard, Ukraine refers to the panel report in India – Autos. That report explained
that the scope of Article XI:1 is sufficiently broad so that "any form of limitation imposed on, or in
relation to importation constitutes a restriction on importation within the meaning of Article XI:1. "
That panel added that the scope of Article XI:1 is not strictly limited to border measures because
any condition that has a "limiting effect" on imports will be inconsistent with Article XI:1. Ukraine
considers it relevant also that the Appellate Body in Argentina – Import Measures has held that
"[t]he use of the word ‘quantitative ' in the title of Article XI of the GATT 1994 informs the
interpretation of the words ‘restriction ' and ‘prohibition ' in Artic le XI:1, suggesting that the
coverage of Article XI includes those prohibitions and restrictions that limit the quantity or amount
of a product being imported or exported. " Ukraine has shown that Ukrainian railway products
subject to mandatory certificatio n are systematically prevented from importation into the Russian
Federation. Therefore, that measure imposes a limitation on the quantity of imports of Ukrainian
railway products into the Russian Federation.
D. The first measure violates Article XIII:1 of the GATT 1994
13. Ukraine submits that the scope of application of Article XIII:1 of the GATT is not limited to
restrictions authorised as exceptions to the general prohibition of restrictions under Article XI:1.
Ukraine has demonstrated that importation f rom other countries is not similarly restricted. For
instance, European and Kazakh producers currently hold more valid certificates than they did
before the start of the systematic prevention. It follows that the Russ ian Federation violates
Article XIII:1 of the GATT 1994.
II. THE INSTRUCTIONS SUS PENDING THE EXISTING CERTIFICATES AND THE
DECISIONS REFUSING T HE ISSUANCE OF NEW C ERTIFICATES (SECOND GROUP OF
MEASURES)
A. The measures violate Article 5.1.1 of the TBT Agreement
14. Ukraine submits that the inst ructions of the Federal Budgetary Organization "Register of
Certification on the Federal Railway Transport " ("FBO "RC FRT"") to suspend the certificates of the
producers of Ukrainian railway products and the decisions to reject their applications for new
certificates, as listed in Annexes I and II to the panel request, are inconsistent with Article 5.1.1 of
the Agreement on Technical Barriers to Trade ("TBT Agreement").
15. Taking into account the differences in the wording between Article 2.1 and Article 5.1.1 of
the TBT Agreement, Ukraine considers that the two -step test developed in the specific context of
Article 2.1 of the TBT Agreement is not directly transposable to Ar ticle 5.1.1 of the TBT
Agreement. In particular, any second step in the context of claims of de facto discrimination under
Article 5.1.1 of the TBT Agreement should necessarily be circumscribed by the objective pursued
by conformity assessment procedures, namely to ensure that products conform with technical
regulations.
16. Ukraine submits that the Russian Federation violates Article 5.1.1 of the TBT Agreement
because it has applied conformity assessment procedures so as to grant access for suppliers of
railway products originating in Ukraine under conditions less favourable than those accorded to
suppliers of like products of Russian origin or originating in any other third country, in a
comparable situation.

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17. The Russian Federation 's rebuttal is limite d to asserting that Ukraine failed to demonstrate
the likeness of the products at issue and claiming that suppliers of Ukrainian railway products and
suppliers of railway products originating in other countries are not in "a comparable situation".
18. First, the instructions suspending the certificates and the decisions rejecting applications for
new certificates distinguish on the basis of the location of the producers concerned by those
measures, and thus, the origin of the products. Indeed, certificates were suspended and
applications for new certificates were rejected because the conditions for conducting inspections in
Ukraine were, allegedly, lacking. That reason is therefore unrelated to the characteristics of the
products covered by the measures. It is based on the fact that the producers concerned are
located in Ukraine. Due to that origin-based distinction, likeness may be presumed.
19. Second, in all the instructions and decisions at issue (except one), the reason given for not
carrying out the inspections was the alleged impossibility of carrying out the inspection as a result
of the situation in Ukraine. Therefore, those measures de jure discriminate against Ukrainian
suppliers of railway products. It follows that the question as to whether the P anel should follow a
two-step analysis similar to the one developed by the Appellate Body in the context of Article 2.1
of the TBT Agreement, appears to be irrelevant. Indeed, the Appellate Body expressly referred to
the legitimate regulatory distinction t est in case of de facto discrimination. Therefore, the Panel
should only examine whether, through the measures at issue, the conformity assessment
procedures have been applied so as to grant access for suppliers of Ukrainian railway products
under different conditions to the detriment of those suppliers in comparison to suppliers of like
products of Russian origin or suppliers of like products originating in any other Members, in a
comparable situation. In that respect, the Russian Federation 's rebuttal is limited to arguing that
there is no violation of Article 5.1.1 of the TBT Agreement because "the situation in Ukraine that
made the completion of certification procedure impossible can hardly be compared to situation in
any other country supplying like products to the Russian Federation." To the extent that what is at
issue is whether suppliers are in a comparable situation, the Panel is required to examine whether,
in the light of the arguments and evidence presented by both parties, it can be concluded th at the
Ukrainian suppliers at issue and Russian suppliers and suppliers in other countries are in a
"comparable situation".
20. Ukraine underlines that the reason(s) invoked by the Russian Federation to argue that the
situation of Ukrainian suppliers was not comparable to the situation of suppliers in other countries
is provided by the Russian Federation ex post . The general explanation about alleged security
concerns that is advanced by the Russian Federation in these proceedings casts serious doubts as
whether the decisions taken by the Russian Federation were truly motivated by those concerns.
21. In any case, the Russian Federation 's assertions about security concerns in Ukraine and
entry restrictions for Russian citizens into Ukraine are baseless. In that regard, Ukraine has
demonstrated that the Ukrainian authorities imposed no such restrictions. With regard to the
alleged general uncertainty concerning the safety conditions in the territory of Ukraine, the
Russian Federation has relied mainly on various press articles. Ukraine has shown that the
sporadic events described in those articles are irrelevant because they took place in t he cities of
Odessa and Kyiv (where none of the producers affected by the suspensions of certificates and the
rejections of applications listed in Annexes I and II to the panel request are located) or took place
outside of the relevant time period. The Rus sian Federation has relied also on the travel advice of
the Russian Ministry of Foreign Affairs. However, Ukraine has established that the probative value
of that document is questionable. Ukraine has also shown why the Declaration by the employees of
the FBO "RC FRT" refusing to go to Ukraine and the letters sent by Ukrainian producers in which
the latter offered to ensure the safety of Russian inspectors cannot support the Russian
Federation's position. Putting aside the questionable probative value of th e abovementioned
declaration, in fact, that declaration confirms that the management of the FBO "RC FRT "
considered it safe for Russian inspectors to travel to Ukraine for carrying out the required
inspection controls. Ukraine has explained that the letter s of Ukrainian producers were sent in
response to the letters from the FBO "RC FRT " suspending the relevant certificates due to the
alleged lack of conditions for carrying out the inspections. As a result, those letters may not be
used as evidence of the r ecognition of risks of the safety of inspectors. Ukraine has also
demonstrated that there is no basis for the Russian Federation 's argument that, by travelling to
Ukraine, FBO "RC FRT" inspectors would risk being sentenced to eight years in prison. Finally , the
absence of entry restrictions is confirmed by the high number of Russian citizens travelling to

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Ukraine during the period concerned (2014 -2017) and the fact that during that period, inspectors
from other countries visited Ukraine and successfully performed the relevant inspections.
B. The measures violate Article 5.1.2 of the TBT Agreement
22. Ukraine submits that, under Article 5.1.2 of the TBT Agreement, the relevant test is similar
to that under Article 2.2 of the TBT Agreement. It follows that th e Panel should assess the
necessity of the obstacles to international trade resulting from the application of the conformity
assessment procedures at issue by considering: (i) the degree of contribution made by the
measure to the objective of achieving a p ositive assurance of conformity with the relevant
requirements of a technical regulation or standard; (ii) the trade -restrictiveness of the measure;
and (iii) the nature of the risks at issue and the gravity of consequences that would arise from
non-fulfilment of the objective of achieving a positive assurance of conformity with the relevant
requirements of a technical regulation or standard (thus, meaning non -conformity). As a
conceptual tool, the Panel may also compare the challenged measure with possible alternative,
reasonably available measures that are less trade restrictive and would make an equivalent
contribution to the objective of achieving a positive assurance of conformity with the relevant
requirements of a technical regulation or standard, tak ing into account the risks non -fulfilment of
achieving a positive assurance of conformity (and not of any other legitimate objective) would
create. Furthermore, in assessing whether the alternative measure makes an "equivalent"
contribution, there is a margin of appreciation.
23. At the same time, the second and third sentences of Article 2.2 of the TBT Agreement and
the second sentence of Article 5.1.2 of the TBT Agreement do not fully correspond and a proper
interpretation of Article 5.1.2 of the TBT Agre ement must take into account those differences.
First, a complainant must show a violation of the requirements in both sentences of Article 5.1.2 of
the TBT Agreement in order for a panel to find that a measure violates that provision. Second,
under the se cond sentence of Article 5.1.2 of the TBT Agreement, it is necessary to examine
whether, by preparing, adopting or applying the conformity assessment procedure at issue, a WTO
Member is seeking to obtain "adequate confidence that products conform with the applicable
technical regulations or standards, taking account of the risks non -conformity would create ". In
that regard, Ukraine considers that where a WTO Member suspends conformity assessment
certificates or rejects applications for new certificates on g rounds other than the lack of the
conformity of the products with the applicable technical regulations or other than the imperative
conditions without which conformity may not be reviewed, that Member applies a conformity
assessment procedure with a view t o or with the effect of creating unnecessary obstacles to
international trade. Under Article 5.1.2 of the TBT Agreement, WTO Members are not free to set
any level of confidence as regards the risk that goods might not satisfy the relevant requirements
in technical regulations or standards. The obligations found in Article 5.1.2 of the TBT Agreement
apply only, in accordance with Article 5.1 of the TBT Agreement, "in cases where a positive
assurance of conformity with technical regulations or standards is re quired". Furthermore, the
second sentence of Article 5.1.2 of the TBT Agreement refers to "adequate confidence that
products conform with the applicable technical regulations or standards ". It follows that, if it is
shown that the rejection of applications for certificates and the suspension of existing certificates
make no contribution to that objective, those measures violate Article 5.1.2 of the TBT Agreement.
In the present case, the grounds for the FBO "RC FRT" decisions are completely unrelated to the
conformity of the products with the applicable technical regulations and to the imperative
conditions without which conformity may not be reviewed. Therefore, the measures listed in
Annexes I and II to the panel request are trade restrictive measures that make no contribution to
the objective of achieving adequate confidence that Ukrainian railway products conform with the
applicable technical regulations.
24. The Russian Federation 's rebuttal of Ukraine 's claim under Article 5.1.2 of the TBT
Agreement is limited to rejecting Ukraine's arguments as regards the availability of less restrictive
alternative measures. Ukraine therefore understands that the Russian Federation does not contest
the other elements of Ukraine 's prima facie case of a violation of Art icle 5.1.2 of the TBT
Agreement.

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25. First, the Russian Federation has not shown why on -site inspections were required and
therefore remote inspections were unavailable for all of the producers whose certificates were
suspended or whose applications were rejected. The Russian Federation argues that under Russian
law, "the remote inspections were available in exceptional situations and were not applied for high-
danger goods " and that "the certification body also took into account the amount of objects
subject to inspection and the level of their potential danger ". However, Ukraine has demonstrated
that the Russian Federation conducted remote inspections for Ukrainian products under the CS FRT
Rules and the CU Technical Regulations. Ukraine has also rebu tted the allegation that on -site
inspections were required because the products covered by the instructions and decisions were
large size products. In fact, the instructions and decisions covered both large size and other than
large-size products. Furthermore, the Russian Federation carried out remote inspections for large
size products. Finally, Ukraine has shown that the Russian Federation may not rely on the fact that
there have allegedly been issues of non -conformity and consumers ' complaints regarding the
products covered by the instructions and decisions. The evidence before the Panel shows that
those issues of non -conformity and consumers ' complaints only relate to a small number of the
products covered by the instructions and decisions. It follows th at remote inspections were
reasonably available to the Russian Federation as a less trade restrictive alternative measure.
26. Second, Ukraine suggests that the Russian Federation could have entrusted inspections to
the authorities of the Republic of Belar us and Kazakhstan, which regularly carried out inspections
in Ukraine. No provision of the relevant CU Technical Regulations precludes the possibility of
entrusting the conduct of an inspection to an accredited certification body from another CU
member inc luded in the Unified Register of Certification Bodies and Testing Laboratories of the
Customs Union ( "certification body"). In fact, the Treaty on the Eurasian Economic Union ( "EAEU
Treaty") explicitly provides for the possibility that one member state acc redits a conformity
assessment authority registered in another member state.
27. Third, Ukraine argues that the Russian Federation could have accredited non -Russian
inspectors in order to carry out inspections in Ukraine as the relevant rules contain no li mitation as
to the nationality of inspectors.
C. The measures violate Article 5.2.2 of the TBT Agreement
28. Ukraine submits that the Russian Federation violates Article 5.2.2 of the TBT Agreement
because (i) through the decisions refusing the issuance of new certificates, the FBO "RC FRT" failed
to promptly examine the completeness of the documentation submitted by the applicants and to
inform them in a precise and complete manner of all deficiencies in their applications (second
obligation of Article 5.2.2 of the TBT Agreement); and (ii) through the instructions suspending the
existing certificates and the decisions refusing the issuance of new certificates, the FBO "RC FRT"
failed to transmit the results of the assessment in a precise and complete manner that would allow
the applicants to take corrective actions (third obligation of Article 5.2.2 of the TBT Agreement).
29. The second obligation of Article 5.2.2 of the TBT Agreement applies when the competent
body receives an application. Ukraine interprets the phrase "when receiving an application", taking
into account the immediate context found in the first sentence of Article 5.2.2 of the TBT
Agreement, to refer to any situation in which a request is made for a conformity assessment
procedure to be proc essed. The third obligation applies throughout conformity assessment
procedure because it requires the competent body to transmit the results of the "assessment" to
the applicant. It follows that the phrase "the results of the assessment " must be interpret ed to
mean the results of the overall assessment made under the conformity assessment procedure as
well as the results of the assessment made with respect to each procedure that is a necessary
element of the conformity assessment procedure. Furthermore, th at phrase covers also the
circumstances in which not all procedures forming part of the overall conformity assessment
procedure may have been completed. Article 5.2.2 of the TBT Agreement requires that the
transmission must be done "as soon as possible " and "in a precise and complete manner ". It
follows that the competent body is required to communicate the results of the assessment quickly
and without any undue delay. Moreover, the information transmitted to the applicant must be
complete and accurate so t hat the applicant is put in a position that he can make an informed
decision as to whether and, if so, what corrective action is required. Such corrective action might
take different forms. Depending on the circumstances at issue that action might consist of
correcting deficiencies in the application, providing additional documents or altering the product in
order to ensure its conformity with the applicable technical regulations or standards. Ukraine

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submits that the specific obligations imposed by Article 5.2.2 of the TBT Agreement equally apply
to conformity assessment procedures carried out after a certificate of conformity has been issued.
30. Regarding the three decisions refusing the issuance of new certificates, the FBO "RC FRT"
did not comply with the second obligation under Article 5.2.2 of the TBT Agreement. The language
of the first and second decisions shows that the FBO "RC FRT" did not examine the completeness
of the documentation as it decided to return the applications "without consideration". As regards
the third decision, Ukraine submits that the mere listing of the provision containing all of the
required documents is insufficient in order to inform the applicant, "in a precise and complete
manner", of the specific documents claimed to be missing.
31. Ukraine submits that the fourteen instructions suspending the existing certificates of
Ukrainian producers violate the third obligation under Article 5.2.2 of the TBT Agreement. Each of
those instructions, informing the applicants of the resul ts of the FBO "RC FRT"'s assessment that
inspections could not take place, referred to the impossibility of carrying out the inspection control
as the reason for suspending the relevant certificates. The instructions suspending the certificates
"due to the lack of conditions for inspection control " should inform the affected Ukrainian
producers of the results of the producer -specific assessment which led the FBO "RC FRT " to
conclude that there were "no conditions for inspection control " for those producers. Information
that is not relevant to a specific producer does not qualify as "the results of the assessment" within
the meaning of Article 5.2.2 of the TBT Agreement because it does not place that producer in a
position to know why its certificates have been suspended or what corrective action(s) may be
taken.
32. The three decisions of the FBO "RC FRT" rejecting the applications for new certificates also
failed to transmit to the applicants the results of the FBO "RC FRT"'s assessment in a precise and
complete manner so that corrective action could be taken if necessary. Two of those decisions
referred to the impossibility "to carry out the certification procedure in full " as the reason for
rejecting the applications, and therefore fail ed to communicate the results of its assessment in a
sufficiently precise or complete manner. They contained no explanation of why the FBO "RC FRT"
found it to be impossible to carry out the certification procedure in full. In any event, the ex post
explanation of the Russian Federation concerning the alleged impossibility to carry out on -site
inspections simply does not stand taking into account that the producers concerned applied for
certification under schemes which do not require the FBO "RC FRT " inspectors to visit the
producer's facilities. The third decision was based on the alleged lack of documents necessary for
certification. Given that the relevant applications have been submitted under a different provision
of CU Technical Regulation No. 003/201 1, namely under Article 6(21), and the fact that they had
been accepted by the FBO "RC FRT " with reference to that provision in its earlier decisions,
Ukraine considers that a simple reference to Article 6(28) of the same technical regulation did not
inform the applicant "in a precise and complete manner " of the results of the competent body 's
assessment so as to know what corrective action to take.
III. THE DECISION OF THE RUSSIAN FEDERATION N OT TO ACCEPT IN ITS TERRITORY
THE VALIDITY OF THE CONFORMITY ASS ESSMENT CERTIFICATES ISSUED TO
UKRAINIAN PRODUCERS IN OTHER CU COUNTRIES (THIRD MEASURE)
A. Introduction
33. The Russian Federation argues that there is no "decision" not to recognize the certificates
issued to Ukrainian producers in other CU countries and that Ukrainian railway products for which
certificates were issued by certification bodies in other CU countries can "freely circulate in the
EAEU". However, the evidence provided by the Russian Federation does not support these
assertions and is contradi cted by Ukraine 's own evidence. The documents submitted by Ukraine
demonstrate that the Russian Federation 's decision is based on two additional requirements,
namely that only products manufactured in the CU may be subject to certification and that only
entities registered in the same country as the relevant certification body may apply for
certification.

- C-18 -

B. The third measure violates Article 2.1 of the TBT Agreement
34. Ukraine submits that the decision of the Russian Federation not to accept in its terri tory the
validity of the certificates issued to producers of Ukrainian railway products in other CU countries
violates Articles 2.1 of the TBT Agreement.
35. The Russian Federation argues that that decision falls outside the scope of Article 2.1 of the
TBT Agreement because it "is not a technical regulation ". However, Ukraine has shown that that
measure is "in respect of " a technical regulation such as CU Technical Regulation No. 001/2011
which serves as the basis for the Russian Federation 's decision not t o accept in its territory the
validity of the certificates issued to producers of Ukrainian railway products in other CU countries.
It follows that the measure at issue is a measure "in respect of technical regulation".
36. The third measure at issue is b ased on the fact that the Russian Federation recognizes only
certificates issued for (i) products manufactured in the territory of the CU and (ii) upon application
from an entity registered in the same country as the relevant certification body. Those two criteria
are applied by the Russian Federation only with regard to producers of Ukrainian railway products.
Therefore the measure distinguishes on the basis of origin. As a consequence, the likeness of the
railway products concerned may be presumed.
37. The Russian Federation submits that none of the instruments mentioned in the description of
the third measure "contain[s] any ‘additional requirements ' based on the origin of Ukrainian
producers". Ukraine has established that, while the text of CU Technical Regulation No. 001/2011
does not require that only railway products manufactured in the territory of the CU may be subject
to certification, the Russian Federation nonetheless applies this requ irement to Ukrainian
producers. As a result of that additional requirement, the Russian Federation declares the
certificates issued for Ukrainian railway products in other CU countries to be invalid. As a
consequence, those products cannot be placed on the Russian market. At the same time, the
certificates obtained for Russian railway products in other CU countries are accepted as valid, and
thus, those products have unrestricted access to the Russian market. Since the distinction made
by that additional re quirement is based solely on the origin of railway products, the measure at
issue discriminates de jure against the imported products. There is thus no need to examine
whether or not the detrimental impact of that measure on imports stems exclusively from a
legitimate regulatory distinction.
38. The Russian Federation also alleges that the actual reason for not recognising the Belarusian
certificates issued to Ukrainian producers was the lack of certificates for the components of the
products concerned. Putting aside the fact that this is yet another ex post explanation which was
never mentioned by the Russian authorities, Ukraine has shown that the Belarusian certification
body in April 2015 terminated the two certificates due to some editorial errors and n ot because of
the alleged lack of certificates of components.
39. Finally, Ukraine submits that, by rejecting the validity of certificates issued to Ukrainian
producers, the Russian Federation accords to railway products imported from Ukraine treatment
less favourable than the treatment accorded to railway products origi nating in other countries.
First, the additional requirement that only products manufactured in the territory of the CU may be
subject to certification in and of itself discriminates between Ukrainian railway products and
railway products from other CU countries. Second, the manner in which this requirement has been
applied by the Russian Federation, namely only with respect to railway products from Ukraine,
discriminates between products imported from Ukraine and products imported from any other
country. Since the distinction made by that additional requirement is based solely on the origin of
railway products, it de jure discriminates against Ukrainian railway products. Thus, the Panel 's
analysis may end here.
C. The third measure violates Article 5.1.1 of the TBT Agreement
40. The Russian Federation argues that Ukraine failed to demonstrate the likeness of the
products at issue and failed to demonstrate that the measure violates the national treatment and
the MFN obligations under Article 5.1.1 of the TBT Agreement.
41. Ukraine submits that if the Panel finds that Ukrainian railway products are like Russian
railway products and railway products originating in other countries for the purposes of Article 2.1
of the TBT Agreement, the products would also be like under Article 5.1.1 of the TBT Agreement.

- C-19 -

42. Under Article 5.1.1 of the TBT Agreement, Ukraine does not take issue with the additional
requirement concerning the manufacturing place of railway products (challenged under Article 2.1
of the TBT Agreemen t) but with the second additional requirement concerning the location of the
entity applying for certification. The text of Article 6(9) of CU Technical Regulation No. 001/2011
does not expressly require the applicant for certification to be registered in the same country as
the relevant certification body. However, the Russian Federation nonetheless applies this
requirement to producers of Ukrainian railway products in order not to accept the validity of their
certificates obtained in other CU countries. T he same requirement is not applied to assessing the
validity of certificates issued to Russian producers. Furthermore, the Russian authorities
themselves have issued certificates to suppliers of railway products on the basis of applications
from entities registered in other CU countries. It follows that the third measure is inconsistent with
the MFN and the national treatment obligations imposed by Article 5.1.1 of the TBT Agreement.
D. The third measure violates Article 5.1.2 of the TBT Agreement
43. As a result of the Russian Federation 's decision not to accept in its territory the validity of
certificates issued to Ukrainian producers in other CU countries on the basis of the requirement
that only entities registered in the same country as the relevant ce rtification body may apply for
certification, the Russian Federation effectively prevents Ukrainian railway products covered by
those certificates from being imported into the territory and placed on the market of the Russian
Federation. This measure there fore severely restricts trade of those Ukrainian products and
violates Article 5.1.2 of the TBT Agreement.
44. The Russian Federation argues that the absence of a requirement according to which only
entities registered in the same country as the relevant certification body may apply for certification
"would create a risk of non -compliance with the Technical Regulation No. 001/2011 ". According to
Ukraine, no such risk exists because the certificates received by Ukrainian producers in other CU
countries were issued under CU Technical Regulation No. 001/2011, meaning that the products
covered by those certificates complied with the requirements of that technical regulation.
Furthermore, Ukraine has demonstrated that there are less trade restrictive alternative measures
available to the Russian Federation which would make an equivalent contribution to giving positive
assurance that the relevant requirements of CU Technical Regulation No. 001/2011 are fulfilled.
Those measures include accepting that applicants reg istered in the territory of other CU countries
may apply for certification and that certificates obtained by those applicants are valid.
E. The third measure violates Article I:1 of the GATT 1994
45. In response to Ukraine 's claim under Article I:1 of the GATT 1994, the Russian Federation
argues that Ukraine has failed to demonstrate that the products at issue are "like". The decision of
the Russian Federation not to accept in its territory the validity of the certificates issued to
producers of Ukrainian railway products in other CU countries is based on the fact that the Russian
Federation recognizes only certificates issued for (i) products manufactured in the territory of the
CU and (ii) upon application from an entity registered in the same country as the relevant
certification body. Both requirements are expressly mentioned in the text of the relevant
instruments. Hence, the third measure does not distinguish between products based on the
physical characteristics or end -uses of the products per se . It follows that the likeness of the
railway products concerned has been established.
F. The third measure violates Article III:4 of the GATT 1994
46. By arguing, in response to Ukraine 's claim under Article III:4 of the GATT 1994, that the
measure does not mo dify the conditions of competition, the Russian Federation ignores the fact
that, according to the third measure at issue, only certificates issued for products manufactured in
the CU to applicants located in the same country as the relevant certification body may be
recognized in the Russian Federation. This means that Russian railway producers can use
certificates obtained in other CU countries in the Russian Federation, while this is not the case for
Ukrainian producers. Hence, the Russian Federation treats suppliers of railway products originating
in third countries less favourably than suppliers of domestic railway products.

- C-20 -

G. The third measure violates Article X:3(a) of the GATT 1994
47. Finally, Ukraine has demonstrated that, for the purposes of its claim under Article X:3(a) of
the GATT 1994, the FBO "RC FRT" has granted a certificate to a Polish producer who had applied
through a company located in Kazakhstan. Moreover, the Russian Federation has granted
certificates of conformity to Kazakh and Bel arusian producers applying through Kazakh and
Belarusian entities. The Russian Federation has also recognized certificates issued by the Kazakh
certification body to Russian producers applying through Russian entities. This clearly
demonstrates that the tw o requirements applied by the Russian Federation in order not to
recognize the validity of certificates issued to Ukrainian producers in other CU countries are not
equally applied with respect to the Russian producers or producers from other third countrie s. It is
also clear that, in light of the language used in the documents listed in Annex III to the panel
request, the actions taken in those documents have a significant impact on the overall
administration of the measure towards Ukrainian producers, and not simply on the outcome of a
single case. It follows that the Russian Federation administers the third measure at issue in a non -
uniform, non -impartial and unreasonable manner thereby violating Article X:3(a) of the GATT
1994.
IV. CONCLUSIONS
48. For the reasons set out above, Ukraine respectfully requests the Panel to find that the
measures at issue are inconsistent with the TBT Agreement and the GATT 1994.

- C-21 -

ANNEX C-3
FIRST PART OF EXECUTIVE SUMMARY OF THE ARGUMENTS OF
THE RUSSIAN FEDERATION
1. INTRODUCTION
1. In this dispute, Ukraine challenges several aspects of Russia's legal framework as well as the
decisions and instructions of Russian authorities relating to certification process.
2. Ukraine's claims are based on an erroneous understanding of the WTO law and an
intentional misrepresentation of Russian legislation, revealing Ukraine's intent to justify under the
WTO law import into the Russian Federation market of unsafe and substandard goods. The claims
raised by Ukraine in this dispute encroach upon the right of a Member enshrined in the WTO law to
ensure quality of the imports to its territory.
2. FAILURE OF UKRAINE T O FULFIL THE REQUIRE MENTS OF ARTICLE 6.2 OF THE
DSU
3. Russia argue s that Ukraine failed to satisfy the requirements of Article 6.2 of the DSU.
Ukraine failed to link the measures at issue and the legal basis, since the provisions of the covered
agreements allegedly being violated are listed in Section IV "Legal Basis for the Complaint" of the
Panel Request without any reference to or link with the measures challenged listed in Section II of
the Panel Request.
4. Reference to the "railway products" and "other railroad equipment" as goods at issue is too
vague and does not allow to identify the specific measures being challenged. "Railway products"
and "other railroad equipment " are not defined in the Harmonized System of Nomenclature, they
are not terms that are defined in any authoritative dictionary and not commercial ter ms that are
readily understandable in the international trade. Moreover, Articles 2.1, 5.1.1 of the
TBT Agreement as well as Articles I:1, III:4, X:3(a), XIII:1 of the GATT refer to the "like
products", thus in order to understand the problem at issue the product at issue is to be identified.
5. In paragraph 3 of Section II of the Panel Request Ukraine alleges that the competent
authorities of the Russian Federation "decided that Technical Regulation No. 001/2011 is applicable
only to goods produced in the CU countries." That means that Ukraine challenges whether or not
Russian authorities correctly understood the provisions of the CU Technical Regulation. As the
CU Technical Regulation as well as any other CU Decisions, other acts of the bodies of the Eurasian
Economic Union are not covered agreements in the sense of Article 1.1 of the DSU, the Russian
Federation believes that any determination regarding the consistency of any actions/omissions of
the EAEU Member State with such acts or decisions of the CU Bodies is out of the Panel 's terms of
reference.
6. The scope of Measure III is limited to "Technical Regulation No. 001/2011 "On safety of
railway rolling stock"", since the wording "read together with" means that other documents listed
by Ukraine in poin t "3)", are not measures per se , but rather evidence or arguments Ukraine
makes a reference to in its Panel Request. In any event Ukraine failed to identify the "specific
measures at issue" referring to the Technical Regulation No. 001/2011 "On safety of railway rolling
stock" generally, without specification of any particular provisions.
7. Measure I and Measure II as described in the Panel Request are distinct in their nature and
substance from any of the documents set out in Section II of the Consultatio ns Request, since
Section II of the Consultations Request limits the scope of the measures challenged only to the
documents and does not include any particular actions or omissions allegedly undertaken by such
authorities, including "systemic" ones.
8. Measure I taken alone expands the scope of the dispute, since nowhere in the Consultations
Request Ukraine referred to any "systematic" violations.

- C-22 -

9. Finally, certain aspects of Measure II taken alone expand the scope of the dispute in the
Consultations Request Ukraine failed to refer to any specific instructions. The essence of Measure
II challenged by Ukraine in the Panel Request is the specific individual decisions. Without
identification of these decisions it is impossible to understand the essence of the measure. Ukraine
also failed to specify both the date and the number of the letter referred to in Annex III of the
Panel Request, making it impossible for the respondent even to identify and locate the challenged
document. Moreover, Letters [[xxx]] and [[xxx]] are two absolutely new measures that cannot be
reasonably inferred from the Consultations Request, where Ukraine specifically stated that this
measure deals with applications for certificates pursuant to Technical Reg ulation No. 003/2011,
while these letters refer to the certificates issued pursuant to Technical Regulation No. 001/2011.
3. MEASURE I
3.1 UKRAINE FAILED TO PROVE THE EXISTENCE OF AN UNWRITTEN MEASURE OF A SYSTEMATIC NATURE
10. Measure I challenged by Ukraine is "the systematic prevention of Ukrainian railway products
from being imported into the Russian Federation".
11. It follows from the way the challenge is framed and Measure I is formulated by Ukraine that
Measure I is an unwritten, overarching measure that is claimed to be different from the legal acts
based on or through which Russian authorities act or the actions of such authorities.
12. Ukraine failed to make any analysis of the existence of this unwritten measure and failed to
show its systematic nature.
13. There is no evidence submitted by Ukraine showing that there is something else in addition
to the acts of the authorities challenged as Measure II that could show that Measure I actually
exists or justify a stand -alone claim against Measure I. Ukraine submitted no evidence of "the
organized effort " on the part of the Russian authorities that could turn the acts of application
challenged as Measure II into Measure I.
14. Export from Ukraine to the Russian Federation still takes place and Ukraine acknowledges
that a number of c ertificates were issued to Ukrainian producers, but manipulates the facts in an
attempt to demonstrate that they should not be taken into account. In fact, Ukraine asks the Panel
to ignore the fact that the certificates continue to be issued with respect to Ukrainian products.
15. In its argumentation Ukraine ignores that the reasons for suspension and rejection of certain
certificates were provided to Ukrainian producers. The reasons for the rejection of application
varied and were specifically provided in the relevant letters to the Ukrainian producers concerned.
16. Ukraine argues that "Russian authorities have not suspended certificates and have not
refused to issue new certificates to producers of railway products from third countries ". Under
Russian legislation, the reasons for the suspension of certificates are the same for all producers
from any country and all goods irrespective of their country of origin.
17. As of April 18, 2017 Russian Certification Body FBO "RC FRT" (hereinafter referred to as FBO
"RC FRT") suspended 283 certificates, which would be valid, but for suspension: 29 from Germany,
28 from Ukraine, 7 from Check Republic, 5 from Italy, 4 from France, 11 from Spain, 4 from
Switzerland, 3 from Serbia, 2 from Austria, 1 from Swiss, 5 from Poland, 1 from Latvia, 2 from
Belarus, 8 from Kazakhstan and 173 from Russia. Thus FBO "RC FRT " suspends certificates of
producers from any country if the relevant requirements of Technical Regulations are not satisfied.
18. The evidence presented by Ukraine on "information on the Russian import market of railway
products" only shows that there was decrease in the imports in the Russian Federation. Indeed,
there was a decrease in the imports, however, it was a decrease of impo rts from all countries.
Thus this evidence does not show that specifically Ukrainian producers were prevented from
importing into the Russian Federation.
19. Moreover, the decrease in Ukrainian imports to the Russian Federation resulted from the
decrease of production Ukraine, and the complainant fails to account for that in its argumentation.

- C-23 -

The revenue of [[ xxx]] has decreased by 89,5% in 2015 as compared to 2014, of [[ xxx]] by
10,1%, of [[xxx]] by 51,3%, of [[xxx]] by 19,5%, of [[xxx]] by 71%.
20. For these reasons Russia claims that Ukraine failed to make a prima facie case with respect
to the existence and the contents of the unwritten measure and, consequently, to establish the
very existence of the measure it is trying to challenge. In any event, Ukr aine failed to show the
systematic nature of the alleged measure.
3.2 CLAIM 1 MEASURE I ALLEGEDLY VIOLATES ARTICLE I:1 OF THE GATT
21. Ukraine claims that "the Russian Federation violates Article I:1 of the GATT because,
through the systematic prevention of railway products of Ukrainian origin from being imported into
the Russian Federation, the Russian Federation does not immediately and unconditionally grant to
railway products originating in Ukraine the advantage it grants to like products originating i n the
territories of all other contracting parties."
22. Firstly, when describing the contents of Measure I, nowhere does Ukraine argue that the
measure constitutes a rule or norm of general application. When proceeding to the claim of
violation of Article I:1, Ukraine blatantly states that Measure I "is a principle regulating the
importation of Ukrainian railway products", while providing no substantiation of such allegation.
23. Ukraine failed to demonstrate that Measure I constitutes a rule or a princip le of general
application both as part of the challenge of Measure I as such, and as part of its claim of violation
of Article I:1. Therefore Ukraine failed to establish a prima facie case that Measure I falls within
the scope of Article I:1 of the GATT.
24. Secondly, under Article I:1 of the GATT it is only between like products that the MFN
treatment obligation applies and discrimination within the meaning of Article I:1 may occur.
Products that are not like may be treated differently.
25. The only argumentation Ukraine presents is that "as the measure at issue is applied solely to
Ukrainian railway products .., it must be assumed that the products are like ". The assumption of
likeness advanced by Ukraine does not apply since both the acts and their appli cation that are at
issue in this case do not differentiate on the origin of the goods and apply across the border.
Ukraine does not even attempt to show the likeness of the products at issue. Hence, the Russian
Federation submits that Ukraine failed to mak e a prima facie case with respect to the likeness of
products at issue.
26. Thirdly, a measure granting an advantage within the meaning of Article I:1 of the GATT is a
measure that "create more favourable competitive opportunities " or affects the commercial
relationship between products of different origins.
27. According to the texts of letters and instructions to which Ukraine refers, there is no basis
for establishing the alleged prevention of railway products from being imported to the Russian
Federation due to their Ukrainian origin. Furthermore, these letters and instructions are not
discriminatory as they are applied equally with respect to all imports of "railroad products".
28. CU Technical regulations No. 001/2011 "On Safet y of Railway Rolling Stock"; No. 002/2011
"On Safety of High -Speed Rail Transport" and No. 003/2011 "On Safety of Rail Transportation
Infrastructure" establish the conditions for placing of the relevant products on the CU market. The
only argument Ukraine makes to prove the alleged discrimination is that today Ukrainian
producers hold only 40 certificates. However this shows only the fact that other producers failed to
satisfy the requirements of the relevant CU Technical regulations and due to the reasons stated by
the FBO "RC FRT" in the relevant documents were not granted certification.
29. Therefore, the difference in competitive opportunities, if there is any, is simply created by
the ability of foreign producers to comply with the relevant requirement s of Russian laws on
certification.
30. For the above reasons the Russian Federation submits that Ukraine 's claim of the alleged
inconsistency of Measure I with Article I:1 of the GATT is unfounded.

- C-24 -

3.3 CLAIM 2 MEASURE I ALLEGEDLY VIOLATES ARTICLE XI:1 OF THE GATT
31. In support of the alleged violation of Article XI:1 of the GATT Ukraine argues that systemic
prevention of Ukrainian railway products from being imported into the Russian Federation
"constitutes a "rule" instituted or maintained by the Russi an Federation. It thus falls within the
scope of Article XI:1 of the GATT which covers any "measure"".
32. Russia argues that the interpretation advanced by Ukraine in relation to its claim under
Article XI:1 of the GATT is impermissibly broad. "Article XI :1 of the GATT does not cover any
restriction, but only those restrictions that are instituted or maintained by any Member "on the
importation" (or exportation) of products".
33. Russia argues that Measure I does not constitute a measure maintained "on the importation"
or "on the exportation " of any product under Article XI:1 of the GATT and thus it is outside the
scope of Article XI:1 of the GATT. Measure I is neither a restriction nor a prohibition on the
importation of products. Requirement for obtainin g a valid certificate in order to be placed on
Russia's market is an internal measure that applies equally to imported and domestic products
subject to mandatory certification under relevant applicable legislation in Russia, rather than a
measure on the importation of the products at issue.
34. Since the requirements for certification do not limit the importation or exportation of the
goods at issue, the Russian Federation submits that (i) Measure I is outside the scope of Article XI
of the GATT and (ii) U kraine failed to establish a prima facie case of violation of Article XI of the
GATT.
3.4 CLAIM 3 MEASURE I ALLEGEDLY VIOLATES ARTICLE XIII:1 OF THE GATT
35. Russia submits that Ukraine 's claim on inconsistency of Measure I with Article XIII:1 of the
GATT should be rejected because Article XIII is not applicable in the present dispute.
36. Article XIII of the GATT prohibits discrimination in the administration of quantitative
restrictions and is extended to restrictions authorized as exceptions to the general ban on non -
tariff restrictions within Article XI:1 of the GATT.
37. Measure I cannot be considered to be "with regard to " or "in connection with " the
importation. Therefore Article X III of the GATT does not apply to Measure I as is it neither a
quantitative restriction prohibited by Article XI:1 of the GATT, nor a quantitative restriction that is
otherwise allowed under WTO law.
38. Moreover, Ukraine failed to make a prima facie case with respect to the likeness of goods at
issue, since (i) the basis for the assumption of likeness is wrong; (ii) Ukraine failed to specify the
goods at issue and (iii) did not establish their likeness to the goods of third countries.
39. Finally, arguing that the importation from all other countries must be "similarly restricted",
the only statement Ukraine makes is that "the measure at issue does not similarly restrict the
importation of like products from all other countries as only products originating in Ukraine are
systematically prevented from being imported into the Russian Federation ". Ukraine failed to
demonstrate the existence of restriction distinct from administration of certification procedures.
Ukraine also failed to identify any country whos e imports to Russia are not restricted in the same
way as allegedly Ukrainian goods are, in light of the fact that Russia similarly suspends the
certificates issued to the producers irrespective of their origin if the relevant requirements of
CU Technical Regulations are not fulfilled. Hence, the Russian Federation argues, that Ukraine
failed to make a prima facie case of violation by Measure I of Article XIII:1 of the GATT.
40. For the above stated reasons, the Russian Federation argues that Ukraine failed to establish
a violation of Article XIII:1 of the GATT by Measure I.
4. MEASURE II
41. Measure II challenged by Ukraine consists of: 14 instructions whereby the FBO "RC FRT "
suspended the certificates held by five producers of Ukrainian railway products and three decisions

- C-25 -

as listed in Annex II to the Panel Request whereby the FBO "RC FRT " refused to issue new
certificates to three producers of Ukrainian railway products.
4.1 CLAIM 4 MEASURE II ALLEGEDLY VIOLATES ARTICLE 5.1.1 OF THE TBT AGREEMENT
42. The Russian Federation submits that Ukraine failed to establish a prima facie case of
violation of Article 5.1.1 of the TBT Agreement . Russia submits that Ukraine failed to make any
analysis of the goods at issue and did not explain how those goods are like to the domestic goods
and goods of third countries, to which Ukraine refers.
43. When Ukraine refers to the fact that FBO "RC FRT" issued 1103 certificates to producers of
railway products in the Russian Federation, 39 and 23 certificates to Kazakh and Belarusian
producers respectively and 97 certificates to producers from the European Union , it ignores the
fact that all these certificates are issued with respect to different g oods, the likeness of which to
the goods originating in Ukraine was not shown.
44. Moreover, Ukraine ignored the requirements of Article 5.1.1 of the TBT Agreement since it
requires a Member to grant access for suppliers of like products under conditions no less
favourable than those accorded to suppliers of like products of national origin or originating in any
other country, in a comparable situation . The Russian Federation argues that the situation in
Ukraine that made the completion of certification pr ocedure impossible can hardly be compared to
situation in any other country supplying like products to the Russian Federation.
45. The certificates to which Ukraine refers in Annex I to the Panel Request were suspended
because it was impossible to carry o ut the inspection control of the certified products. This was
due to the military actions within the territory of Ukraine which posed threat to the lives and
health of the FBO "RC FRT" employees. Unsafe and dangerous conditions in Ukraine are evidenced
from the multiple publicly available sources. In total, from mid -April 2014 to 15 February 2017,
the Office of the United Nations High Commissioner for Human Rights recorded 33,146 casualties
among Ukrainian armed forces, civilians and members of the armed gr oups. This includes 9,900
people killed and 23,246 injured.
46. Moreover, it should be noted that non-citizens of Ukraine traveling to the Republic of Crimea
not in accordance with Ukrainian legislation are subject to criminal prosecution facing up to 8 years
of imprisonment. The citizens of Russia do not travel to the Republic of Crimea in accordance with
Ukrainian laws as of March 2014. To that extent up to 8 years of imprisonment are practically
automatic within the territory of Ukraine for any Russian c itizen that travelled to Crimea after
March 2014.
47. The employees of the FBO "RC FRT " were unable to carry out the inspection control
necessary for maintenance of the certificates as well as inspection of production due to the
uncertainty with respect t o the safety of the Russian employees. In other countries to which
Ukraine refers there were no circumstances that could prevent carrying out the certification
procedure in full , such as no grounds for the employees to be concerned about their safety or
security.
48. With respect to the Decision [[ xxx]] dated 9 February 2015, whereby the FBO "RC FRT "
annulled the applications with reference to the failure to provide documents necessary for
certification, these applications contained only two documents, out of ten required.
49. For the above stated reasons the Russian Federation argues that Ukraine failed to establish
a prima facie case of violation of Article 5.1.1 of the TBT Agreement by Measure II and that
therefore Measure II is consistent with Article 5.1.1 of the TBT Agreement.
4.3 CLAIM 5 MEASURE II ALLEGEDLY VIOLATES ARTICLE 5.1.2 OF THE TBT AGREEMENT
50. In order to establish a violation of Article 5.1.2 of the TBT Agreement Ukraine provides two
alternative supposedly less trade -restrictive measures: "[…] the FBO "RC FRT " could have
communicated with the relevant producers in order to ensure, if and where necessary, conditions
for carrying out the inspections and the certification procedure in general. It could have also made
use of the possibility to carry out remote inspections" (emphasis added). However, Ukraine failed

- C-26 -

to show how these alternative measures would make an equivalent contribution to the
achievement of the objective at the level of protection sought by the Russian Federation. Thus
Ukraine failed to establish a prima facie case of violation of Article 5.1.2 of the TBT Agreement.
51. With respect to the alternatives suggested by Ukraine Russia argues that there were
communications between the employees of the FBO "RC FRT " and the relevant companies.
However, these communications did not help to ensure the conditions for carrying out the
inspections and the certification procedure in general.
52. With respect to the second alternative, the remote inspections were not available to the
Russian Federation pursuant to the applicable technical regulations. Ukraine has not shown how
the remote inspections would provide an equivalent assurance of conformity of high -danger goods
at issue with the applicable requirements, especially in light of the f act that almost [[xxx]]% of
accidents on the Russian rail roads were due to the defective products produced in Ukraine.
53. Therefore, Russia is of the view that Ukraine failed to make a prima facie case establishing
that less trade restrictive alternatives were available to Russia that could make an equivalent
contribution to assuring conformity of the products at issue with the relevant technical regulations
at the level of protection sought by the Russian Federation.
54. For the above stated reasons, the Russian Federation argues that Ukraine failed to show that
the manner in which Russia applies its conformity assessment is more restrictive that necessary
and thus establish the violation of Article 5.1.2 of the TBT Agreement by Measure II.
4.4 CLAIM 6 MEASURE II ALLEGEDLY VIOLATES ARTICLE 5.2.2 OF THE TBT AGREEMENT
55. The relevant part of Article 5.2.2 of the TBT Agreement indicates that " the competent body
promptly examines the completeness of the documentation and informs the applicant in a precise
and complete manner of all deficiencies; the competent body transmits as soon as possible the
results of the assessment in a precise and complete manner to the applicant so that corrective
action may be taken if necessary".
56. However, letter [[xxx]] of 8 August 2014, the FBO "RC FRT" sent to PJSC [[ xxx]] instruction
No. [[xxx]] whereby it suspended seven certificates for various railway products and indicated that
the certificates were suspended since there were no conditions for inspection control. The FBO "RC
FRT" indicated that the certificates had to be suspended due to the military actions in the territory
of Donetsk and Lugansk which are causing threats to the officers ' lives and health. The authorities
also referred to Ukraine 's restrictions of the entry to the territory of Ukraine of Russian male
citizens between 16 and 60 years old. They indicated that this constituted the basis for a lack of
conditions for conducting the inspection control.
57. Moreover, all producers asking for certification were fully aware of the relevant situation and
the reasons for the inability to conduct the inspection control necessary for the certification.
58. For the reasons stated above, the Russian Federation argues that Ukraine failed to establish
the violation of Article 5.2.2 of the TBT Agreement by Measure II.
5. MEASURE III
5.1 CLAIM 7 MEASURE III ALLEGEDLY VIOLATES ARTICLE 2.1 OF THE TBT AGREEMENT
59. Ukraine does not challenge the measure defined in its Panel Request , i.e. Technical
Regulation No. 001/2011 "On safety of railway rolling stock" . Instead, Ukraine has put forward a
new and very different measure according to which the measure at issue is the Russian
Federation's "decision to refuse to recogn ize the validity of certificates issued to Ukrainian
producers by certification bodies in other CU countries ". There is no trace of this new measure in
the Panel Request . This new measure even does not deal with the Technical Regulation
No. 001/2011 "On safety of railway rolling stock".
60. Such a new measure significantly changes and extends the scope of the dispute in
comparison with the scope established in the Panel Request, thus Russia argues that the Panel

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Request does not comply with the requirement s of Article 6.2 of the DSU as regards this measure
and, consequently, that the claims related to Measure III fall outside the Panel's terms of
reference.
61. In any event the Russian Federation submits that Protocol of the Ministry of Transport No. A
4-3 and the Letters of the Federal Railway Transport Administration of the Ministry of Transport of
the Russian Federation which allegedly contain the decision of the Russian Federation not to accept
the validity of the certificates do not constitute a technical regulation and, thus, fall outside the
scope of Article 2.1 of the TBT Agreement.
62. To be a technical regulation the document must apply to an identifiable product or group of
products. However, these documents are not applied to any products, but ra ther deal with validity
of the certificates. The document must also lay down one or more characteristics of the product,
which is not the case with these documents. These documents do not describe ""features",
"qualities", "attributes", or other "distingui shing mark" of a product ". Finally, the requirement that
compliance with the product characteristics must be mandatory is also not satisfied. These
documents are individual decisions with respect to specific certificates. They do not establish any
mandatory product characteristics. For these reasons, the Russian Federation argues that Protocol
of the Ministry of Transport No. A 4 -3 and the decisions listed in Annex III to the Panel Request
are not technical regulations within the meaning of the TBT Agreemen t and thus do not fall within
the scope of Article 2.1 of the TBT Agreement.
63. Secondly, Ukraine failed to prove that "the measure at issue distinguishes between the
products exclusively on the basis of origin ", and therefore there is no ground for the presumption
of likeness claimed by Ukraine in this dispute. Ukraine also failed to make any analysis of the
goods at issue and did not explain how those goods are like to the domestic goods and goods of
third countries. Ukraine simply failed to identify pr oducts at issue, to provide any goods -specific
analysis and, thus, failed to make a prima facie case with respect to likeness of the goods at issue.
64. Thirdly, the letters referred to by Ukraine do not contain any discriminatory provisions.
Products manufactured in the territory of the CU are indeed subject to certification under Technical
Regulation No. 001/2011. However, contrary to what is argued by Ukraine, it is not stated in either
of the documents referred to by Ukraine that Technical Regulation No . 001/2011 applies only to
such products.
65. Article 1 of Technical Regulation No. 001/2011 clarifies this matter and specifies that "[t]his
technical regulation of the Customs Union (hereinafter - TR) applies to newly developed
(upgradeable), manufactured railway rolling stock and their parts, put into circulation for use on
railway tracks and total uncommon 1520 mm in the customs territory of the CU with velocities up
to 200 km/h inclusive. " That means that Technical Regulation No. 001/2011 is applicabl e in all
these cases.
66. Documents to which Ukraine refers do not contain any "additional requirements" based on
the origin of Ukrainian producers.
67. The reason for non-recognition of the certificates was that the products produced in Ukraine
were certified upon the application to the Republic of Belarus certification body without certification
of the components subject to mandatory conformity as required u nder Article 6(51) of Technical
Regulation No. 001/2011.
68. In its explanatory latter as of 1 9 May 2014 № VK -969/16 the Eurasian Economic
Commission clarified that the goods that are subject to mandatory certification und er the
CU Technical Regulations and which were not subject to mandat ory certification before the
CU Technical Regulations entere d into force can be put into circulation only within the territory of
the CU Member, whose legislation did not prescribe the mandatory certification of the goods at
issue.
69. Belarus legislation did not provide for the certification of the components, wh ile Russian
legislation did. The Republic of Belarus certification body certified the Ukrainian producer despite of
the lack of certificates of conformity for the components. That was the reason for the non -

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recognition of the certificates at issue by the R ussian Federation and that would be the case with
respect to any producer of any origin.
70. For this reason Russia argues that Ukraine failed to show the violation of Article 2.1 of the
TBT Agreement by Measure III.
5.2 CLAIM 8 MEASURE III ALLEGEDLY VIOLATES ARTICLE 5.1.1 OF THE TBT AGREEMENT
71. In its Panel Request Ukraine stated that the measure at issue is Te chnical Regulation
No. 001/2011. However, describing Measure III in Claim 8 in its first written submission Ukraine
puts forward new measure des cribed as the conformity assessment procedures set out in
Article 6(9) of Technical Regulation No. 001/2011. Thus Ukraine challenges neither the Technical
Regulation, as it was stated in the Panel Request nor the decisions of the Russian Federation 's
authorities, as it is stated in Claim 7, but rather the application of Article 6(9) of Technical
Regulation No. 001/2011 by the Federal Agency for Railway Transport. This measure is not
specified in the Panel Request and cannot be reasonably derived from any ot her measure that is
specified in the Panel Request. Thus, the Russian Federation argues that the Panel Request does
not comply with the requirements of Article 6.2 of the DSU as regards this measure and,
consequently, that this claim is outside the Panel's terms of reference.
72. In any event, firstly, Russia argues that in its argumentation of violation of Article 5.1.1 of
the TBT Agreement Ukraine does not make any analysis of the issue of likeness and does not
explain how the goods at issue are like the domestic goods and goods of third countries, to which
Ukraine refers.
73. Secondly, Ukraine failed to show that there is any differential treatment with respect to
products of Ukrainian origin in comparison to the products of other third countries or nati onal
origin.
74. Technical Regulation No. 001/2011 is applicable to railway rolling stock and their parts, put
into circulation in the customs territory of the CU irrespective of their origin , and the documents to
which Ukraine refers do not contain any "additional requirements" based on the origin of Ukrainian
producers.
5.3 CLAIM 9 MEASURE III ALLEGEDLY VIOLATES ARTICLE 5.1.2 OF THE TBT AGREEMENT
75. Since the description of measure in Claim 8 and Claim 9 is identical, Russia refers to Section
5.2. above, where Russia explains why Measure III is outside the Panel's terms of reference.
76. In any event Ukraine failed to show that Measure III is inconsistent with Article 5.1.2 of the
TBT Agreement, since it results in the imposition of additional costs and administrative burdens for
the producers of Ukrainian railway products.
77. The degree of contribution of this measure to its objective is specifically provided in the
CU Technical Regulation No. 001/2011, that is, "to ensure compliance of the supplied pr oducts
with the requirements of this CU technical regulation and to bear responsibility for non -compliance
of the products with the requirements of this CU technical regulation".
78. In the present situation Belarus legislation did not provide for the cer tification of the
components, while Russia 's legislation did. The lack of such requirement would not equally
contribute to the level of protection sought by the Russian Federation.
79. For these reasons the Russian Federation argues that Measure III does not create
unnecessary obstacles to international trade and fully complie s with Article 5.1.2 of the
TBT Agreement.
5.4 CLAIM 10 MEASURE III ALLEGEDLY VIOLATES ARTICLE I:1 OF THE GATT
80. Since the measure challenged by Ukraine in Claim 7 and Claim 10 of its first written
submission is the same, Russia refers to Section 5.1. above, in which Russia explains why Measure
III is outside the Panel's terms of reference.

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81. In any event, firstly, Ukraine failed to present any analysis of the likeness of the pr oducts at
issue and simply stated that "railway products imported from Ukraine and railway products
imported from other countries into the Russian Federation are "like products". Hence, the Russian
Federation argues that Ukraine failed to make a prima facie case with respect to the likeness of
goods at issue.
82. Secondly, Ukraine claims that Measure III "grants an advantage to products manufactured
in the territory of CU countries –i.e. Belarus and Kazakhstan - but not to other WTO Members,
including Ukraine", since "only products manufactured in the territory of the CU may be subject to
certification under Technical Regulation No. 001/2001".
83. However, as it has already been explained, products manufactured in the territory of the CU
are indeed subject to certification under Technical Regulation No. 001/2011. However, contrary to
what is argued by Ukraine Technical Regulation No. 001/2011 is applicable to railway rolling stock
and their parts put into circulation in the customs territory of the CU irrespec tive of their origin,
and the documents to which Ukraine refers do not contain any requirements based on the origin of
Ukrainian producers. Thus, Russia argues that Measure III is not inconsistent with Russia 's MFN
obligation under Article I:1 of the GATT.
5.5 CLAIM 11 MEASURE III ALLEGEDLY VIOLATES ARTICLE III:4 OF THE GATT
84. Since the measure challenged by Ukraine in Claim 7, Claim 10 and Claim 11 of its first
written submission is the same, Russia refers to Section 5.1 above, where Russia explains, wh y
Measure III challenged by Ukraine is outside the Panel's terms of reference.
85. In any event, firstly, Ukraine failed to present any analysis of the likeness of the products at
issue and simply stated that "railway products imported from Ukraine are li ke domestic railway
products". Hence, the Russian Federation argues, that Ukraine failed to make a prima facie case
with respect to the likeness of goods at issue.
86. Secondly, Ukraine argues that Measure III is inconsistent with Article III:4 of the GATT due
to the alleged imposition of two additional requirements: (1 ) that Technical Regulation
No. 001/2011 applies only to products manufactured in the territory of CU; (2) that only entities
registered in the same CU country as the relevant certification body can apply for certification.
87. With respect to the first requirement Russia has already explained that Technical Regulation
No. 001/2011 is applicable to railway rolling stock and their parts put into circulation in the
customs territory of the CU irrespective of their origin.
88. With respect to the second requirement i n the present case domestic suppliers are al ready
registered in the Russian Federation and thus shall not establish an additional entity or conclude a
contract. Even if, for the sake of the argument, this treatment were considered to be different
from that accorded to the foreign suppliers, it would not render the measure to be inconsistent
with Article III:4 of the GATT, since this difference does not modify the conditions of competition.
Ukraine failed to explain how the competitive opportunities of its producers were modified.
89. For the above stated reasons, Russia argues that Measure III is not inconsistent with Article
III:4 of the GATT.
5.5.1 CLAIM 12 MEASURE III ALLEGEDLY VIOLATES ARTICLE X:3(A) OF THE GATT
90. Ukraine claims "that the Russian Federation violates Article X:3(a) of the GATT because
Technical Regulation No. 001/2011, read together with the Protocol of the Ministry of Transport
No. A 4-3 and the decisions listed in Annex III to the Panel Request, has not been administered in
a uniform, impartial and reasonable manner."1
91. Ukraine identifies Technical Regulation No. 001/2011 as a whole and the Protocol of the
Ministry of Transport No. A 4 -3 as a part of the measure at issue. These acts could not on their

1 Ukraine's first written submission, para. 379.

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face be covered by Article X:3(a) of the GATT. Only administration of thes e acts could fall within
the scope of this Article.
92. Ukraine failed to make prima facie case and prove that it challenges not the legal acts as a
whole but rather administration of these acts. In fact, Ukraine failed to show that the challenged
laws are not administered in a uniform, impartial and reasonable manner.
93. The Technical Regulation No. 001/2011 is applied in a uniform manner, as the scope of its
application, as stated in Article 1, is the following: "[t]his technical regulation of the Cust oms
Union (hereinafter - TR) applies to newly developed (upgradeable), manufactured railway rolling
stock and their parts, put into circulation for use on railway tracks and total uncommon 1520mm
in the customs territory of the CU with velocities up to 200 km / h inclusive. " The Technical
Regulation No. 001/2011 is applied in an impartial manner, as it is applied in unbiased and
unprejudiced manner without any distinction on the basis of origin. Finally, the Technical
Regulation No. 001/2011 is applied in a reasonable manner, since the certificates at issue were
suspended for a legitimate reason, i.e. the lack of certification of the components.
94. For the above stated reasons, the Russian Federation argues that it applies the Technical
Regulation No. 001/2011 in full conformity with Article X:3(a) of the GATT.
6. CONCLUSIONS
95. For the reasons set out in the present submission, the Russian Federation requests the Panel
to dismiss all Ukraine's claims and to find that the challenged measures are not inconsistent with
Russia's obligations under WTO Agreements.

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ANNEX C-4
SECOND PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS OF
THE RUSSIAN FEDERATION
BCI DELETED, AS INDICATED BY [[XXX]]

1. INTRODUCTION
1. Ukraine's claims are based on an erroneous u nderstanding of WTO law and an intentional
misrepresentation of Russian legislation and the acts of the Russian authorities. These claims as they
are put forward by Ukraine encroach upon the rights of a Member enshrined in the WTO Agreements,
in particular the right to ensure the safety of products circulating on its market.
2. Moreover, throughout this dispute Ukraine has not been coherent in laying out its claims,
constantly modifying and re -arranging them in each subsequent document and statement as well as
the substance and description of the measures at issue. Ukraine consistently tries to modify and
expand the scope of the dispute, keeping its claims a moving target, in violation of Article 6.2 of the
DSU.
3. Furthermore, Ukraine essentially requests t he Panel to totally discount the probative value of
entire sets of evidence demonstrating facts that are of crucial importance for the resolution of this
dispute, in particular, the evidence showing the present and continued importation of Ukrainian
"railway products" into Russia and the evidence documenting the entry restrictions imposed by
Ukraine with respect to Russian citizens and general uncertainty with respect to safety conditions
within the territory of Ukraine.
2. MEASURE I
2.1 UKRAINE FAILED TO PROVE THE EXISTENCE OF AN UNWRITTEN MEASURE OF A SYSTEMATIC NATURE
4. Measure I, as challenged by Ukraine, is "[t]he systematic prevention of Ukrainian producers
from exporting their railway products to the Russian Federation by way of suspension of their valid
conformity assessment certificates, refusal to issue new conformity assessment certificates and the
non-recognition of conformity assessment certificates issued by the competent authorities of other
members of the CU".1
5. Ukraine confirms that Measu re I is an unwritten, overarching measure that is claimed to be
different from the individual decisions of the Russian authorities. 2 That means that the content of
Measure II, i.e. “the suspensions of conformity assessment certificates, the rejections of n ew
applications for conformity assessment certificates and the refusals to recognize valid conformity
assessment certificates issued by other CU countries with regard to Ukrainian producers” 3, according
to Ukraine 's intentions, should be different from tha t of Measure I. However , in the course of the
proceedings Ukraine has not identified the difference in content of Measure I vis -à-vis Measure II and,
thus, the precise content of Measure I.
6. This Panel must reject Ukraine 's attempt to "repackage" determi nations made in the context of
specific conformity assessment procedures as an unwritten "systematic prevention" measure. The
evidence submitted by Ukraine consists of nothing more than the suspension of some certificates,
refusal of applications for new c ertificates and the alleged non -recognition of several certificates that
are the subject of Ukraine 's claims under the TBT Agreement. As the panels have found in Russia –
Tariff Treatment and Indonesia – Chicken, even if such determinations were somehow co nsidered to

1 Panel Request, p. 2.
2 Opening Statement of Ukraine, 10 July 2017, para. 12.
3 Panel Request, p. 2.

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be repetitious, that would nonetheless be insufficient, without more, to establish the existence of an
overarching system, plan, organized method or effort.4
7. Ukraine confirmed that it is challenging an "overarching" measure that has "general scope"
because it prevents the importation of "all" Ukrainian "railway products" into the Russian Federation.
However, evidence on the Panel record demonstrates that FBO "RC FRT" issued 25 certificates for
Ukrainian suppliers before the entry into force o f the Customs Union Technical Regulations 001/2011,
002/2011, and 003/2011, and that those certificates remained valid in the period of 2014 -2016.5 The
evidence also demonstrates that the FBO issued 19 certificates of conformity to Ukrainian producers
after the entry into force of the said Customs Union Technical Regulations. 6 Finally, the evidence also
establishes that Belarus and Kazakh certification bodies issued 35 certificates of conformity to
Ukrainian producers and on the basis of those certificates, "railway products" were and are free to
circulate in the EAEU territory, including the territory of the Russian Federation.7
8. Thus, Ukraine has failed to establish the content of the alleged measure as Ukraine itself has
defined it. The evidence on the Panel record demonstrates that no "general" measure exists,
applicable to "all" Ukrainian railway products, pursuant to which these products cannot be imported
into the Russian Federation.
9. Ukraine confirmed that the alleged "systematic prevention" meas ure is distinct from individual
determinations to suspend, refuse or not to recognize conformity certificates. Put differently, like the
European Union and Brazil before it, Ukraine seeks to establish a "systematic" measure that is greater
than the sum of its parts, insofar as its normative content is separate and distinct from specific
determinations in individual cases.
10. Ukraine first alleges that the suspension, refusal and alleged non -recognition of certificates
demonstrate a systematic effort becau se these are "all possible means" by which Russia restricts the
importation of Ukrainian railway products.8 This argument is purely semantic, and amounts to nothing
more than a restatement of the repeated application argument. As the panel in Indonesia – Chicken
recently found, the fact that certain measures have similar trade -restrictive effects is insufficient,
without more, to determine that these measures are established pursuant to an overarching system or
plan. Ukraine makes no effort to establish tha t the alleged "systematic prevention" measure has a
normative content that is different from the individual determinations that it challenges in this dispute.
11. Second, Ukraine refers to the fact that the reasons for suspensions and refusals are "repetitively
the same" as further evidence of the existence of a system, plan, organized method or effort. 9 FBO
"RC FRT" did in fact react in the same manner whenever entry restrictions and general uncertainty
with respect to safety conditions in Ukraine rendered it impossible to perform on-site inspections. This
does not establish, however, the existence of a system, plan, organized method or effort to restrict
the importation of Ukrainian railway products. Rather, it simply corroborates the fact that these
determinations were consistent with Russia's assessment of the risks faced by its inspectors.
12. Finally, Ukraine refers to alleged trade -restrictive measures purportedly imposed by Russia on
other products as evidence of the existence of an organized method or effort pursuant to which the
importation of Ukrainian railway products is restricted. 10 This evidence is entirely irrelevant for the
Panel's disposition of this issue, as it relates to different products, which are not like products to those
imported from Ukraine.
13. Moreover, Ukraine's challenge against the alleged "systematic prevention" measure effectively
converts the procedural obligations imposed by Article 5 of the TBT Agreement into substantive
obligations imposed as a condition for the import ation of goods into Russia. In the absence of any
evidence demonstrating the existence of a separate and distinct substantive rule applied on the
importation of Ukrainian railway products into the Russian Federation, conformity assessment
procedures that a re purportedly inconsistent with Articles 5.1.1, 5.1.2, and 5.2.2 of the TBT

4 Panel Report, Russia – Tariff Treatment, para. 7.383.
5 Russian Federation's second written submission, paras. 16-23 and Exhibit RUS-48 (BCI).
6 Exhibit RUS-49 (BCI).
7 Exhibit RUS-51 (BCI).
8 Ukraine's second written submission, para. 48.
9 Ukraine's second written submission, para. 49.
10 Ukraine's second written submission, paras. 51-55.

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Agreement would not suffice to establish the existence of a distinct substantive rule that applies as a
condition for the importation of railway products into Russia.
14. In addit ion, Ukraine failed to prove that the alleged "systematic prevention measure" is
maintained "on the importation". As Canada noted, accepting Ukraine 's line of argumentation "could
result in subjecting all measures that regulate the internal sale, distribut ion or use of a product to
Article XI. This will blur the distinction between border and internal measures under the GATT 1994".11
15. In our view, this distinction is important for this case and clearly stems from the interpretative
note to Article III of the GATT. According to this note, even if a certain measure or regulation is
enforced at the time or point of importation, such a measure or regulation still falls under Article III of
the GATT and is not subject to Article XI of the GATT whenever it is a lso imposed on domestic
products. The measure, as defined by Ukraine, consists of nothing more than conformity assessment
procedures that, as evidenced by the text of Article 1 of the CU Technical Regulation, are applied to
both imported and domestic produ cts that are released for circulation within the EAEU customs
territory. The suggestion put forward by Ukraine, that a requirement to present a certificate of
conformity at point of importation as a condition for the goods to be allowed for free circulatio n within
the territory of the Russian Federation transforms this requirement into a border measure, 12 is not
viable and not supported by the existing WTO jurisprudence. 13 The certification requirements and
procedures are applied to the products irrespectiv ely of their origin (whether imported or domestic)
when they are put into circulation in the Russian Federation. In this regard domestic products are
treated in the same manner as the products of third countries. To that extent the certification
requirements and procedures are measures affecting internal sale, distribution and use of products
within the meaning of the GATT Article III. To that extent Measure I, if it existed, should therefore be
analysed only from the perspective of Article III of the GATT, not Article XI, and, consequently, not
Article XIII of the GATT.
2.2 CLAIM 1 MEASURE I ALLEGEDLY VIOLATES ARTICLE I:1 OF THE GATT
16. Ukraine argues that it has shown that Measure I is a rule " in connection with importation "14, as
required by Article I:1 of the GATT. However, Ukraine failed to provide any evidence that Measure I "is
a principle regulating the importation of Ukrainian railway products". Ukraine states that "what needs
to be established is not whether the technical requirements constitute restrictions on importation but
whether the systematic prevention of Ukrainian railway products from being imported into the Russian
Federation constitutes a restriction on importation."15
17. However, Ukraine itself stated that Measure I consists of suspe nsion of valid certificates, refusal
to issue new certificates and non -recognition of certificates. 16 Ukraine does not challenge that these
actions cannot be characterized as rules " in connection with importation". Ukraine never explains how
"suspension of valid certificates, refusal to issue new certificates and non -recognition of certificates"
taken together can be regarded as a separate and distinct measure different in nature, i.e. a rule " in
connection with importation ". As explained above certificatio n requirements and procedures are
measures affecting internal sale, distribution and use of products, both domestic and imported.
Therefore, these measures cannot qualify as measure, rule, or requirement "on importation" or "in
connection with importation".
18. Therefore, Ukraine failed to establish a prima facie case that Measure I falls within the scope of
Article I:1 of the GATT 1994.
19. Ukraine argues that "[t]he structure and design of this measure do not distinguish between
products based on the phys ical characteristics or end -uses of the products but on the origin of the

11 Third Party Submission of Canada, 8 June 2017, paras. 20-21.
12 First Written Submission of Ukraine, paras. 217-219.
13 Panel Report, EU – Asbestos, para. 8.91; Panel Report, Canada – Administration of the Foreign
Investment Review Act, 7 February 1984,para.5.14; Panel Report, United States – Measures Affecting Alcoholic
14 Opening Statement of Ukraine, 10 July 2017, para. 26.
15 Opening Statement of Ukraine, 10 July 2017, para. 33.
16 Ukraine's first written submission, paras. 145-147, Panel Request, p. 2.

- C-34 -

products."17 However, there is uncontested evidence on the Panel record demonstrating that Ukrainian
producers continue to hold valid conformity certificates for "railway products".18
20. This evidence demonstrates that the distinctions reflected in the determinations by FBO"RC FRT"
are not "exclusively based on the origin of the products", therefore the presumption of likeness is
inapplicable in the circumstances of this dispute. Ukr aine essentially argues that the presumption of
likeness applies to any measure that distinguishes "solely on the basis of a criterion that is unrelated
to the products per se", such as its physical characteristics or end uses. 19 This, however, is not what
established Appellate Body jurisprudence stands for. In Argentina – Financial Services, the Appellate
Body explained that the presumption of likeness applies only when the complainant establishes that
the measure at issue distinguishes exclusively on the basis of the origin of the product. If, however,
the measure differentiates on the basis of any other factors, regardless of whether those factors are
related to the products per se, then the presumption is inapplicable and likeness must be determined
with reference to the relevant criteria.20
21. In the present dispute, Ukraine never purported to establish that the measures differentiated
exclusively on the basis of the origin of the products. Quite the contrary, Ukraine seems to concede
that "the reas on for suspending the certificates was that the conditions for conducting inspections
were lacking, since – according to the Russian Federation – the situation in Ukraine posed threat to
lives and health of the FBO employe es."21 At a minimum, the issuance of certificates for certain
Ukrainian producers would suggest that the distinction drawn by the measures at issue is not
exclusively based on the origin of a product . Plus, there is no basis in the WTO jurisprudence for the
novel "based on the location of producer" test advocated by Ukraine. 22 For these reasons, Ukraine
failed to establish the likeness of the goods at issue.
22. Ukraine argues that "[t]he advantage granted is the opportunity for the railway products from
other countries to be imported into the Russian Federation". 23 However, actual imports of Ukrainian
products24 to the Russian Federation evidence that such opportunity was granted by Russia to
Ukrainian products in question.
23. In full compliance with Article I:1 of the GATT 1994 the compo nents of the measure challenged
by Ukraine do not contain a ny a dvantage that was granted to the third countries not granted to
Ukraine. The components of Measure I do not create more favourable competitive opportunities and
do not affect the commercial relationship between products of different origin.
24. For this reasons the Russian Federation asks the Panel to find that Ukraine failed to establish
that products originating from Ukraine were not granted any advantage in violation of Article I:1 of the
GATT 1994.
2.3 CLAIM 2 MEASURE I ALLEGEDLY VIOLATES ARTICLE XI:1 OF THE GATT
25. Should the Panel find that Measure I exists, Russia argues that Ukraine failed to make a prima
facie case that Measure I constitutes a measure covered by Article XI:1 of the GAT T, since Measure I
as challenged by Ukraine does not constitute a measure maintained "on the importation" or "on the
exportation" of any product, as explained above. Thus, the Russian Federation asks the Panel to find
that Ukraine failed to establish a violation of Article XI of the GATT 1994.
2.4 CLAIM 3 MEASURE I ALLEGEDLY VIOLATES ARTICLE XIII:1 OF THE GATT
26. The Russian Federation asks the panel to find that Ukraine failed to establish a violation of
Article XIII:1 of the GATT 1994 by Measure I, as U kraine failed to establish (1) that the measure at
issue is a measure "in connection with" the importation, (2) the likeness of the products at issue, as
well as (3) that the importation from all other countries was not "similarly restricted".

17 Opening Statement of Ukraine, 10 July 2017, para. 28.
18 See Exhibit UKR-12 and Ukraine's responses to panel questions, para. 98.
19 Ukraine's answers to panel questions, para. 28.
20 Appellate Body Report, Argentina – Financial Services, paras. 6.37 and 6.45.
21 Ukraine's answers to panel questions, para. 29.
22 Ukraine's opening statement at the first panel meeting, para. 40.
23 Ukraine's first written submission, para. 203.
24 Ukraine's first written submission, para. 168. and Exhibits RUS 72, 73 (BCI), 78 (BCI).

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3. MEASURE II
27. Measure II challenged by Ukraine consists of: 14 instructions whereby the FBO "RC FRT"
suspended the certificates held by five producers of Ukrainian railway products and three decisions as
listed in Annex II to the Panel Request whereby the FBO "RC FRT" refused to issue new certificates to
three producers of Ukrainian railway products.
3.1 CLAIM 4 MEASURE II ALLEGEDLY VIOLATES ARTICLE 5.1.1 OF THE TBT AGREEMENT
28. Ukraine failed to establish a prima facie case of violation of Article 5.1.1 of t he TBT Agreement
since it did not demonstrate (1) that products of suppliers from Ukraine are like products of national
origin or originating in other countries; and (2) that those suppliers are granted access under
conditions less favourable than those ac corded to suppliers of like domestic products and suppliers of
like products originating in any other country, in a comparable situation.
29. With respect to the likeness of the products at issue Russia refers the Panel to the analysis
summarized in paragraphs 19-21 above, with respect to Measure I.
30. Even if it is assumed, for the sake of the argument, that the products at issue are like, the
Russian Federation argues that it grants access for suppliers of like products originating in the
territories of other Members , including Ukraine, under conditions no less favourable than those
accorded to suppliers of like products of national origin or originating in any other country, in a
comparable situation, as required by Article 5.1.1.
31. The Russian Federation argues that situation within Ukraine is not comparable to the situation in
a third country in the context of granting access to the conformity assessment procedures, due to the
entry restrictions imposed by Ukraine with respect to Russian citizens an d general uncertainty with
respect to the safety conditions within the territory of Ukraine , which make it impossible for the
Russian experts to conduct on -site conformity assessment procedure, as required by Russian
legislation:
32. First, the evidence fr om independent sources provided by Russia documents uncertainty with
respect to safety conditions within the territory of Ukraine in 2014 -2016. Second, due to the lack of
guarantees of their safety, the employees of the FBO "RC FRT" indeed refused to go to the territory of
Ukraine in order to conduct inspections as also evidenced from the declaration of FBO "RC FRT"
employees.25
33. Third, the Russian Federation provided the Panel with multiple evidence showing the existence
of entry restrictions with resp ect to Russian citizens imposed by Ukraine 26 The Protocol of the Border
Department of Odessa was publicly available along with the Ukraine State Border Agency 's public
communications and other communications in the press on restrictions of the entry of the citizens of
the Russian Federation to Ukraine.27 The Protocol specifically establishes that "entry of male citizens of
the Russian Federation from 16 to 60 years old through the state border with the purpose of entry to
Ukraine is suspended." This Protoco l was issued by the governmental body of Ukraine, i.e. the Border
Department of Odessa. It refers to the broader prohibitions and restrictions imposed by the
Administration of the State Border of Ukraine set out therein. This Protocol and, more importantly , the
Orders referred to therein were consequently considered, in particular by the FBO employees, as a
prohibition to enter the territory of Ukraine.
34. Forth, legislation of Ukraine provides for the liability "for entry into and exit from the temporarily
occupied territory of Ukraine". Article 332-1 of the Criminal Code of Ukraine provides for up to 8 years
of imprisonment for "violation of the procedure of entry in and exit from the temporarily occupied
territory of Ukraine".28 Given that Russian citizens travel to the Republic of Crimea as of March 2014 in
accordance with the legislation of the Russian Federation and, consequently, face up to 8 years of
imprisonment practically automatically, this legislation of Ukraine creates serious uncertainty with
respect to safety conditions of stay of Russian citizens in Ukraine.

25 Exhibit RUS – 6 (BCI).
26 Russia's responses to questions from the Panel to the parties in the context of the first meeting,
question 15.
27 Russia's second written submission, para. 99.
28 Exhibit RUS – 22.

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35. Finally, the fact that there was uncertainty with respect to the safety of the Russian employees
is evidenced from the letters sent by Ukrainian companies th emselves.29 The companies promised "to
ensure the security of stay within the territory of Ukraine, including the passport control, of the
experts", which evidences the companies' understanding that there were unsafe conditions in Ukraine.
36. Thus, the situation in Ukraine that made the completion of the certification procedure impossible
was not comparable to the situation in any other country supplying like products to the Russian
Federation.
37. In any event Ukraine failed to prove that the allegedly different treatment of Ukrainian
producers in comparison to those of any other origin does not steam exclusively from a legitimate
regulatory distinction. Even if the Panel decides that there is a different treatment of Ukrainian
producers, quod non, the treatment is based on the premise that no country should be prevented from
taking measures necessary for the protection of human, animal or plant life or health, of the
environment, or for the prevention of deceptive practices, at the levels it considers ap propriate, since
the necessity to conduct the on-site inspections is based on the necessity to fulfil the objectives of the
CU Technical Regulations, i.e. to protect, inter alia, human life and health, animals and plants (Article
1.3. of the CU Technical R egulation 001/2011). Thus, when it was possible to ensure safety of the
products put into circulation on the Russian market without conducting on -site inspections, the
Russian Federation conducted the inspection control without visiting the premises of the suppliers.
Moreover, the certificates for products which required on -site inspections were suspended, not
terminated.
38. For the above stated reasons, the Russian Federation asks the Panel to find that Ukraine failed
to establish a violation of Article 5.1.1 of the TBT Agreement by Measure II.
3.2 CLAIM 5 MEASURE II ALLEGEDLY VIOLATES ARTICLE 5.1.2 OF THE TBT AGREEMENT
39. Under Article 5.1.2 of the TBT Agreement Members shall ensure that "conformity assessment
procedures are not prepared, adopted or app lied with a view to or with the effect of creating
unnecessary obstacles to international trade. This means, inter alia , that conformity assessment
procedures shall not be more strict or be applied more strictly than is necessary to give the importing
Member adequate confidence that products conform with the applicable technical regulations or
standards, taking account of the risks non-conformity would create."
40. The claimant bears the burden of proof to show that there were alternative measures
reasonably available to the respondent capable of making an equivalent contribution to the
achievement of the objective at the level of protection sought. The relative levels of contribution
achieved by the challenged measure and the proposed alternative m easure are to be
compared.30Ukraine failed to satisfy the above standard. I n particular, Ukraine failed t o explain how
any of the alternatives it suggested could ensure the level of protection sought by the Russian
Federation.
41. Ukraine argues that remote inspections are reasonably available alternatives to the suspension
of certificates at issue in this dispute. 31 However, in case of the suspended certificates in question
remote inspection controls could not achieve the same level of assurance of confor mity, since the
evidence on the record demonstrates that in respect of each of the producers whose certificates have
been suspended either because previous inspections identified inconsistencies 32, and/or because
claims were filed in respect of the quality of production of the certified products. 33 Absence of these
factors (inconsistencies and claims) is a precondition for remote inspection to ensure the same level of
assurance of conformity as on-site inspections.
42. Ukraine further argues that on -site inspections conducted by non -Russian nationals, including
Belarus and Kazakh officials, is an alternative to the suspensions and refusals at issue. These
resources are obviously not reasonably available to Russia, and, in any event, the Russian
Government does not have jurisdiction over nationals from other governments. If Ukrainian producers

29 Exhibit UKR-21 (BCI); Exhibit UKR-41 (BCI).
30 Appellate Body Report, US – Tuna II (Mexico), para. 330.
31 Ukraine's second written submission, para. 220.
32 Exhibits RUS – 62-66 (BCI).
33 Exhibits RUS 67-70 (BCI).

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wish to be inspected and certified by Belarus and Kazakh certification bodies, they can do so by
applying to the certification bodies of the respective EAEU Member State s directly. This, in the Russian
Federation's view, clearly indicates that this kind of measure is not a true "alternative" to conformity
assessment procedures for the purposes of the Panel's analysis under Article 5.1.2.
43. Therefore, Ukraine failed to make a prima facie case of reasonable availability of less trade
restrictive alternatives to Russia capable of making an equivalent contribution to assuring conformity
of the products at issue with the relevant technical regulation and thus, Ukraine failed to establish that
Measure II violates Article 5.1.2 of the TBT Agreement.
3.3 CLAIM 6 MEASURE II ALLEGEDLY VIOLATES ARTICLE 5.2.2 OF THE TBT AGREEMENT
44. Contrary to what is argued by Ukraine and in full compliance with Article 5.2.2 of the TBT
Agreement, in the Decision [[xxx]] dated 9 February 2015 the FBO "RC FRT" specifically referred to
the failure of the applicant to provide complete set of documents necessary for certification as
provided by Article 6(28) of the CU Technical Regulation No. 003/201 1. Other letters challenged by
Ukraine informed an applicant in a precise way of the reasons to suspend the certificates, i.e. that
there were no conditions for inspection. Thus, Ukraine failed to establish a violation of Article 5.2.2 of
the TBT Agreement by Measure II.
4. MEASURE III
4.1 MEASURE III AS FORMULATED BY UKRAINE IS OUTSIDE THE PANEL'S TERMS OF REFERENCE

45. It follows from the Panel Request that the measure at issue is Technical Regulation No.
001/2011 "On Safety of Railway Rolling Stock", read together with the Protocol of the Ministry of
Transport and the instructions mentioned in Annex III.
46. However, Ukraine does not challenge the above measure defined in the Panel Request. Instead,
under the umbrella of Measure III Ukraine challenges new measures that are outside the Panel's terms
of reference, since they have not been referred to in the Panel Request, as is required under Article
6.2 of the DSU. In its First Written Submission Ukraine challenges new measures: the alleged decision
of the Russian authorities not to recognize the certificates issued to Ukrainian producers by
certification bodies in other CU countries 34 and "the conformity assessment procedures set out in
Article 6(9) of the CU Technical Regulation No. 001/2011". I n its Second Written Submission, Ukraine
challenges another set of new measures: the alleged requirements "that only products ma nufactured
in the CU territory may be subject to certification" and "that only entities registered in the same
country as the relevant certification body may apply for certificates".
4.2 MEASURE III AS CHALLENGED BY UKRAINE DOES NOT EXIST
47. Russia would like once again to clarify that no "decision" not to recognize certificates issued by
other EAEU Member States has been taken by the Russian authorities. Protocol of the Ministry of
Transportation reflects the opinion of the particular government official s present at that particular
meeting, with the purpose of engaging with the Belarus colleagues in order to resolve the issue of
whether certificates had been issued in compliance with the CU Technical Regulations requirements.
As a result of this process, the relevant certification body of the Republic of Belarus, not Russia,
terminated the certificates referred thereto.35
48. With respect to the letter to [[xxx]], based on the evidence on the record Russia has serious
doubts about the existence and credibility of this document, since (1) the Federal Agency failed to find
in its database the letter referred to by Ukraine in Exhibit UKR – 49 (BCI)(Corr.); (2) Ukraine failed to
explain the discrepancies in the dates (t he letter is dated as of 4 February 2015, while the text of the
letter states that it is in response to the request as of 2 April 2015).
49. In any event, even if such letter had been issued by the Federa l Agency, it is limited to the
particular circumstances of that conformity assessment procedure. It could not have constituted or
contained any "requirement" or "decision" by the Russian authorities not to recognize certificates

34 Ukraine's first written submission, para. 304.
35 Exhibits RUS – 52, RUS – 53.

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issued by agencies of other EAEU Members. Furthermore, Russia has provided extensive evidence
which conclusively establishes that products duly certified by other EAEU certifying bodies freely
circulate in the territory of the Russian Federation. Exhibits RUS – 73(BCI) and 78 (BCI) contain
letters from Russian companies confirming that they use the solid rolled wheels manufactured by
[[xxx]], which means that these wheels are free to circulate in Russian market and are used by
Russian producers. The certificate of conformity on these wheels was issued by certification body of
Belarus and is mentioned in the document produced by Ukraine in Exhibit UKR-49(BCI)(Corr.).
50. Moreover, the evidence before the Panel corroborates that the Russian Federation did not take
any "decision" not to r ecognize the certificates issued by the EAEU Member States to Ukrainian
producers. In the 2014 – 2017 period, Belarus and Kazakh certification bodies issued 35 certificates of
conformity to Ukrainian producers.36Products for which these certificates were issued freely circulate in
the EAEU market, including the territory of the Russian Federation.
51. Thus, the Protocol and the letter referred to by Ukraine do not establish the existence of a
generally applicable "decision" by the Russian authorities not t o recognize the validity of certificates
issued by the Customs Union Members.
4.3 CLAIM 7 MEASURE III ALLEGEDLY VIOLATES ARTICLE 2.1 OF THE TBT AGREEMENT
52. Firstly, the measure challenged by Ukraine does not deal with a technical regulation, as required
by Article 2.1 of the TBT Agreement but rather with the alleged individual decisions not to accept the
validity of the conformity assessment certificates. Ukraine cannot seek to circumvent the disciplines of
Article 2.1 of the TBT Agreement by arguing that these individual determinations were made "in
respect of" a technical regulation. The burden remains to be on Ukraine to establish a prima facie case
that this purported "decision" exists, and that such "decision" constitutes a technical regulation within
the meaning of paragraph 1 of Annex I of the TBT Agreement. Because Ukraine has failed to establish
that the relevant documents are mandatory and constitu te a technical regulation, its claims under
Article 2.1 of the TBT Agreement must fail.
53. Secondly, Ukraine failed to establish the likeness of the goods at issue, as Ukraine repeats the
same unlawful shortcut it took for establishing likeness in relatio n to its claims with respect to
Measures I and II.
54. Thirdly, Ukraine failed to provide any evidence that Russia does not accord to the products
imported from Ukraine treatment no less favourable than that accorded to like products of national
origin and to like products originating in any other country.
4.4 CLAIM 8 AND 9 MEASURE III ALLEGEDLY VIOLATES ARTICLE 5.1.1 AND 5.1.2 OF THE TBT AGREEMENT
55. With respect to Ukraine 's TBT claims, Russia argues that the likeness of the products at issue
was not est ablished. With respect to the alleged less favorable conditions granted to Ukrainian
suppliers, contrary to what is argued by Ukraine, 37 not only entities registered in the same country as
the relevant certification body can apply for certification, as it is clearly evidenced from Article 6(9) of
Technical Regulation 001/2011. The Protocol of the Ministry of Transport No. A 4 -3 and the decisions
listed in Annex III do not contain such a requirement. In any event neither the Ministry of Transport of
the Russ ian Federation, nor the Federal Agency for Railway Transportation has the authority to
interpret the scope of the CU Technical Regulation 001/2011 "On the Safety of Railway Rolling Stock".
Also, they do not establish any additional requirements for the con formity assessment procedure and
are not authorised to do so.
56. In any event, even if there was such a requirement, quod non, the TBT Agreement does not
contain any prohibition to establish such a requirement. Moreover, this alleged requirement does not
change in any way the conditions of competition, as required to establish the violation of Article 5 .1.1
of the TBT Agreement . Thus, Measure III is not inconsistent with Russia 's obligations under Article
5.1.1 of the TBT Agreement.

36 See more detailed information in Exhibit RUS – 51 (BCI).
37 Ukraine's first written submission, para. 338.

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57. An alternative measure suggested by Ukraine in response to the alleged violation of Article 5.1.2
of the TBT Agreement i.e., that "the Russian Federation could accept that applicants registered in the
territory of other Customs Union countries can apply for certificates", 38 is actually applied by the
Russian Federation. In any event, acceptance of the certificates cannot be regarded as an alternative
to non-acceptance of those. Thus, Ukraine failed to provide any reasonably available alternative that
would ensure the level of protection sought by the Russian Federation.
58. Thus, Measure III is not inconsistent with Russia 's obligations under Article 5.1.2 of the TBT
Agreement.
4.5 CLAIM 10 AND 11 MEASURE III ALLEGEDLY VIOLATES ARTICLE I:1 AND III:4 OF THE GATT
59. In order to establish inconsistency with Article I:1 and III:4 of the GATT, the likeness of the
products that are allegedly treated differently needs to be established. However, as discussed above,
Ukraine failed to substantiate the likeness of the products at issue.
60. In any case, as it has been explained above there is no requirement that " only products
manufactured in the territory of the CU may be subject to certification" or "that only entities registered
in the same EAEU Member State as the relevant certification body can apply for certification." Products
certified by Belarus and Kazakh certification bodies freely circulate in the EAEU market, including the
territory of the Russian Federation.
61. Therefore, Ukrainian products imported to the Russian Federation are accorded treatment no
less favourable than that accorded to like products of national origin and to like products originating in
any third country. For these reasons Russia argues that Measure III is not inconsistent with Article
III:4 of the GATT 1994.
4.6 CLAIM 12 MEASURE III ALLEGEDLY VIOLATES ARTICLE X:3(A) OF THE GATT
62. In order to establish a violation of Article X of the GATT Ukraine is required to show that
Measure III is a rule "of general application". 39 Ukraine stated that it "is not challenging the
administration of CU Technical Regulation No. 001/2011 but the administration of the third
measure".40 However, the only analysis Ukraine presented is that "Technical Regulation No. 001/2011
…is a measure of general application."41Ukraine failed to make any similar analysis with respect to the
Protocol of the Ministry of Transport and the letter to [[xxx]]. Thus, Ukraine failed to make a prima
facie case that Measure III, as challenged by Ukraine, falls within the scope of Article X:3 of the GATT.
63. As Ukraine itself rightly highlighted,42in US – Corrosion-Resistant Steel Sunset Review the panel
pointed out that, "for a Member's action to violate Article X:3(a) that action should have a significant
impact on the overall administration of that Member's law and not simply on the outcome of the single
case in question".43
64. Ukraine's arguments that "the actions taken in those documents [referred to by Ukraine in
Annex III of the Panel Request] have a significant impact on the overall administration of the measure
towards Ukrainian producers, and not simply on the outcome of a single case" and that the "refusal to
recognize is not a one -off situation but has been applied to all Ukrainian producers trying to export to
the Russian Federation…"44 contradict the evidence put before the Panel, as the products certified by
Belarus and Kazakh certification bodies freely circulate on Russian market . Thus, Ukraine failed to
establish the violation of Article X of the GATT.

38 Opening Statement of Ukraine, 10 July 2017, para. 102.
39 Appellate Body Report, EC – Poultry, para. 111.
40 Second Written Submission of Ukraine, para. 438.
41 Ukraine's first written submission, paras. 389-392.
42 Second Written Submission of Ukraine, para. 442.
43 Panel Report, US – Corrosion-Resistant Steel Sunset Review, para. 7.310.
44 Second Written Submission of Ukraine, para. 443.

- C-40 -

5. CONCLUSIONS
65. For the reasons set out in the present submission, the Russian Federation requests the Panel to
dismiss all Ukraine's claims and to find that the challenged measures are not inconsistent with Russia's
obligations under the WTO Agreements.

- D-1 -

ANNEX D
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex D-1 Executive summary of the arguments of Canada D-2
Annex D-2 Executive summary of the arguments of the European Union D-6
Annex D-3 Executive summary of the arguments of Indonesia D-10
Annex D-4 Executive summary of the arguments of Japan D-11
Annex D-5 Executive summary of the arguments of the United States D-16

- D-2 -

ANNEX D-1
EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA
I. APPLICABILITY OF GATT ARTICLES I:1 AND XI:1
A. The Nature of the Measure at Issue
1. It is settled law that, "in principle, any act or omission attributable to a WTO Member can be
a measure of that Member for purposes of dispute settlement proceedings", and that this includes
unwritten measures.
2. As the complainant, Ukraine is required to establish that the measure exists and that it is
inconsistent with the Russian Federation’s WTO obligation s. The legal burden in this respect is the
same whether the measure is written or unwritten. The specific measure challenged and how it is
characterized by a complainant will determine the kind of evidence the complainant needs to
submit and the elements t hat it must prove in order to establish the existence of the measure
challenged.
3. While Canada agrees with the panel's statement in Russia – Tariff Treatment that
demonstrating the systematic application of an unwritten measure is not a general requireme nt in
ascertaining its existence, in the circumstances of this dispute, Ukraine's characterization of the
alleged measure has effectively turned it into a requirement.
B. Article I:1
4. The WTO jurisprudence indicates that the phrase "rules and formalities in connection with
importation" has been interpreted broadly. There must be a relationship between the measure and
some aspect of the importation or an impact on the actual importation in order for it to be in
connection with importation. In Argentina – Financial Services, the panel determined that "there
must be a certain association, link or logical relationship between the measure and the exports".
5. In accordance with the legal standard under Article I:1, the Panel should, in determining
whether the m easure is in connection with importation, consider evidence regarding the
relationship between the measure and some aspect of the importation of the products or its impact
on the actual importation of such products. Canada notes that Ukraine's description of the
suspension of certificates of producers of Ukrainian railway products and the rejection of the
applications by such producers for new certificates appear to be instances of the application of the
Russian Federation's conformity assessment procedures (CAPs).
C. Article XI:1
6. The scope of Article XI:1 includes "measures which affect the opportunities for
importation…". In Dominican Republic – Cigarettes, the panel determined, referring to earlier
jurisprudence, that in order to find that a particular measure is a restriction on importation, "it was
necessary to identify it as a condition that has a limiting effect on the importation itself". The
reasoning of the panel in Dominican Republic – Cigarettes indicated that "not every measure
affecting the opportunities for entering the market would be covered by Article XI, but only those
measures that constitute a prohibition or restriction on the importation of products, i.e. those
measures which affect the opportunities for importation itself".
7. In this dispute, Ukraine's position is that the measure characterized as the systematic
prevention of the importation of railway products is a measure subject to Article XI:1. Ukraine
claims that because the absence of a conformity assessment certificate prevents railway products
from being placed on the Russian market, this effectively stops Ukrainian rail products from being
imported. Ukraine has not provided evidence of the relationship between the decisions with
respect to the CAPs and the importation of railway products. However, such a relationship could be
demonstrated if the Russian measure requires, as a condition to be met when importing railway

- D-3 -

products, that the importer produce a conformity assessment certificate allowing the products to
be sold in the Russian Federation.
8. The GATT 1994 distinguishes between internal measures and border measures. Maintaining
this distinction is important since border measures and internal measures are subject to different
rules. Article III contains specific obligatio ns (i.e. non -discrimination rules) that apply to internal
measures that are different in nature from the obligations that apply to border measures. Note Ad
Article III indicates that even if measures falling under Article III:4 are enforced at the border,
such measures still constitute internal measures that fall with the scope of Article III as long as the
measure applies similarly to the imported product and to the like domestic product. This reinforces
the need to establish a clear relationship between a measure and the importation of the product in
order for the measure to be a border measure that falls within the scope of Article XI:1.
II. THE NON-DISCRIMINATION TEST IN ARTICLE 5.1.1 OF THE TBT AGREEMENT
9. Article 5.1.1 of the TBT Agreement contains a requirement that, in respect of CAPs,
Members not grant access to suppliers of imported products under conditions less favourable than
those accorded to suppliers of like domestic products or like products originating in any other
country, in a "comparable situation."
10. Canada agrees that Article 2.1 provides relevant context fo r the interpretation of
Article 5.1.1. At the same time, there are important textual and contextual differences that must
also be taken into account. Similar to Article 2.1, Member s are under an obligation with respect to
Article 5.1.1 not to apply CAPs in a manner that would constitute arbitrary or unjustifiable
discrimination. As under the Article 2.1 analysis, the scope of the test to determine whether there
is arbitrary and unjustifiable discrimination is dictated by the particulars of the dispute.
11. In the context of Article 5.1.1, an analysis of arbitrary or unjustifiable discrimination requires
assessing whether any detrimental impact to the competitive opportunities of cert ain suppliers
resulting from a decision to accord different access to the CAP can be reconciled with, or is
rationally related to, circumstances objectively relevant to the conduct or administration of that
CAP. One consideration in this regard is whether the suppliers are in a "comparable situation".
A. "Comparable situation"
12. The situations to be compared under Article 5.1.1 are those that apply to the suppliers in the
territories from where the like products originate. Canada notes the similarities be tween the term
"comparable situation" and the phrase "between countries where the same conditions prevail",
from the sixth recital of the preamble to the TBT Agree ment and the chapeau of Article XX of the
GATT. In the context of GATT Article XX, the Appell ate Body has stated that "an assessment of
whether there is discrimination between countries where the conditions prevailing are 'the same' is
both a predicate for, and necessarily informs a panel's examination as to whether such
discrimination is 'arbitra ry and unjustifiable'". Canada believes that this statement is also
applicable in the context of TBT Article 5.1.1.
13. Canada also considers that while the phrase "in a comparable situation" qualifies the scope
of the obligation in Article 5.1.1, it should be interpreted in favour of granting access to CAPs to as
wide a variety of potential suppliers as is possible, taking into consideration the legitimate policy
goals of the importing Member in conducting the CAP. In assessing whether suppliers from the
countries in question are "in a comparable situation", a panel should focus its inquiry on factors
relevant to the issue of "access" to the relevant CAP. A panel should consider the specific facts of
the case that relate to the "situation" of the supplier i n the context of the CAP at issue. Relevant
situations could include war, civil unrest, or force majeure in specific circumstances. If this type of
"situation" prevents an importing Member from obtaining assurance of conformity with its technical
regulation, it should be taken into account by the panel.
III. INTERPRETATION OF ARTICLE 5.1.2 OF THE TBT AGREEMENT
14. The general legal obligation under Article 5.1.2 is set out in the first sentence. It requires
that WTO Members do not prepare, adopt or apply CA Ps with a view to or with the effect of
creating unnecessary obstacles to international trade. The second sentence of Article 5.1.2

- D-4 -

provides an example of how CAPs could be "prepared, adopted or applied" in violation of the legal
obligation. It provides th at CAPs "shall not be more strict or applied more strictly" than is
necessary to give the importing Member "adequate confidence" of conformity. The use of
imprecise terms "strict", "applied more strictly" and "adequate confidence" suggests a margin of
discretion to the importing Member.
15. Canada believes that the "relational analysis" is relevant to the general legal obligations of
Article 5.1.2. The second sentence of Article 5.1.2 serves effectively the same role as the second
sentence in Article 2.2. As the Appellate Body has described in the US – Tuna II (Mexico) and US –
COOL, the words linking the first and second sentences of Article 2.2, "for this purpose", "suggest
that the second sentence informs the scope and meaning of the obligation contained in the first
sentence". The words "this means, inter alia" suggest that the second sentence serves to explain
the legal analysis under the Article as a whole. Thus, the "relational analysis" that the panel in EC
– Seal Products correctly identified in Article 5.1.2 should be viewed in respect of the general legal
obligation set out in the first sentence.
16. Canada understands that the ordinary meaning of the word "strict" is "accurately determined
or defined"; "exact, precise"; and "of particulars: enumera ted or described in exact detail". The
element of the obligation in Article 5.1.2 relating to strictness or strictness of application therefore
requires that importing Members not enforce such precise adherence to a process or standard in
the conduct of a CAP that results in the exclusion of conforming products. Canada is of the view
that the term "strict" in 5.1.2 is meant to cover elements of the procedure itself that might impose
an unnecessary burden on the supplier or the product and could result in a "false negative." In
contrast, the phrase "strictly applied" refers not to the procedure itself, but to the manner in which
it is conducted.
17. An assessment of whether a WTO Member has "adequate confidence" that its technical
regulations or standards are complied with is relative to the risk tolerance and legitimate policy
goals of the importing Member and may differ between individual Members. In every case,
Members must ensure that their chosen measures are applied in a non -discriminatory fashion and
that any restrictions on trade are a result of the pursuit of "legitimate" objectives and arise only to
the extent necessary.
18. In the circumstances of this dispute, the Panel is required to assess whether the Russian
Federation's claim that it is unable t o complete its CAP is bona fide or whether there are other
reasons underlying the Russian Federation’s actions that do not rel ate to the objective of
Article 5.1.2.
IV. THE SCOPE OF ARTICLE 2.1 OF THE TBT AGREEMENT
19. The obligations in respect of the technical regulations in Article 2 apply to a WTO Member's
central government body when such bodies prepare, adopt and apply technical regulations. As the
Appellate Body in US – COOL found, Article 2 of the TBT Agreement "governs" the "Preparation,
Adoption and Application of Technical Regulations by Central Government Bodies".
20. In Canada's view, since the words "prepared, adopted or ap plied" do not appear in
Article 2.1, as they do in Article 2.2, the scope of Article 2.1 may not be limited to the preparation,
adoption or application of technical regulations. It may include other actions that are taken "in
respect of" technical regulations; however, other provisions of the TBT Agreement may limit the
scope of measures subject to Article 2.1.
21. Canada is of the view that decisions whether to accept the conformity assessment
certificates issued by other Eurasian Customs Union (ECU) countries are not the type of actions
subject to Article 2.1 if they are governed by Articl e 5. Article 5 applies to CAPs which are defined
as "[a]ny procedure used, directly or indirectly, to determine that relevant requirements in
technical regulations or standards are fulfilled". More specifically, Article 5.1.1 applies to cases for
which a positive assurance of conformity with technical regulations is required.
22. In Canada's view, the Panel should consider whether a decision not to accept the validity of
conformity assessment certificates, based on a requirement as to where the products are

- D-5 -

manufactured, is subject to Article 2.1, or whether it is more properly characterized as a measure
relating to the application of the CAP and therefore subject to the disciplines of Article 5.
V. APPLICATION OF ARTIC LE 2 TO THE TECHNICA L REGULATIONS OF
SUPRANATIONAL BODIES
23. Article 2 of the TBT Agreement governs technical regulations by central government bodies.
Canada notes there is no reference in either the text of the TBT Agreement or in Annex 1 to
supranational bodies. Nevertheless, a supranationa l body could be a central government body as
per the definition of the latter if the supranational body is a "body subject to the control of the
central government". In that case, the supranational body's technical regulation can be attributed
to the WTO M ember and therefore the WTO Member would be required to ensure that the
supranational government body's technical regulation is consi stent with Article 2 of the
TBT Agreement.
24. In this case, the application of Article 2.1 of the TBT Agreement does not depend on whether
the technical regulation has been prepared, adopted or applied by a supranational body. The
Commission of the ECU has adopted the technical regulations but they have direct effect in the
Russian Federation, and are applied by the Russian F ederation’s national authorities. Article 2.1
requires WTO Members to ensure there is no less favourable treatment accorded to imported like
products in respect of technical regulations. Thus, the Russian Feder ation is required under
Article 2.1 to ensure there is no discrimination against imported like products in respect of ECU
technical regulations it applies in its territory. In Canada's view, the fact that the technical
regulation has been adopted by a body other than a central government body, does no t preclude
Article 2.1 from applying to such technical regulations when they are being applied by a Member
within its territory.

- D-6 -

ANNEX D-2
EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION
I. MEASURE I
1. As stressed by the Appellate Body, what ex actly is needed to ascertain the existence of an
overarching measure will depend on how the measure is described and characterized by the
complainant.1 Ukraine characterizes the overarching measure as a systematic prevention of
Ukrainian railway products f rom being imported into Russia. Thus, the elements for the Panel to
assess are: (i) whether Ukrainian railway products are prevented from being imported into Russia
(through the combined effect of the individual measures), (ii) whether this measure is of a
"systematic" nature.
2. The Appellate Body defined the meaning of a measure that has "systematic application" as a
measure that does not have "sporadic unrelated applications". 2 In Russia – Tariff Treatment, the
panel considered that "systematic" meant t hat something is "done according to a system, plan or
organized method or effort".3
3. Isolated instances in which Ukrainian products at issue could be placed on the Russian
market, should in the view of the EU, not be viewed as evidence that an objective of preventing
Ukrainian products at issue from entering the Russian market does not exist.
A. Claim under Article XI:1 of the GATT 1994
4. The EU notes that despite its broad scope, not any condition having an impact on
importation is capable of falling u nder Article XI:1 4. There must be a particular kind of condition,
i.e. one which has a limiting effect on the quantity or amount of importation itself. One must
distinguish between measures that limit the amount of imports or prevent the importation of
products, and those that merely have any negative impact on imports. Only where there is a
discernible quantitative dimension of the measure, in the form of a limiting effect on the qu antity
or value of a product being imported/exported can the measure fall under Article XI:1. This is
supported by the title of Article XI which refers to Quantitative Restrictions (emphasis added), and
was recently confirmed by the Appellate Body5.
5. The EU considers that in cases where a measure amounts to an internal regulation affecting
both domestic and imported product, the mere fact that the measure is enforced at the border
does not make it fall within the scope of Article XI. Rather, by virtue of the Ad Note to Article, such
measure should be examined under the prism of Article III.
B. Claim under Article XIII:1 of the GATT 1994
6. For the same reasons as explained in the context of Article XI:1, mutatis mutandis, the EU
submits that only those prohibitions or restrictions that are instituted or maintained by any
Member "on the importation" (or exportation) of products are concerned by Article XIII:1. Where a
measure amounts to an internal regulation affecting both domestic and imported product, the
mere fact that the measure is enforced at the border does not make it fall within the scope of
Article XIII:1 of the GATT 1994.

1 Appellate Body Report, Argentina — Import Measures, para. 5.108.
2 Appellate Body Report, Argentina – Import Measures (2015), paras. 5.142 – 5.143.
3 Panel Report, Russia – Tariff Treatment, paras. 7.307 and 7.311.
5 Appellate Body Report, Argentina — Import Measures, para. 5.217 (referring to Appellate Body Report,
China — Raw Materials, para. 320):"The use of the word 'quantitative' in the title of Article XI of the GATT
1994 informs the interpretation of the words 'restriction' and 'prohibition' in Article XI:1, suggesting that the
coverage of Article XI includes those prohibitions and restrictions that limit the quantity or amount of a product
being imported or exported."

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II. MEASURE II
7. Article 5.1.1 of the TBT Agreement, which has not yet been subject to panel or Appellate
Body interpretati on, contains the national treatment and most -favoured-nation treatment
obligations with regard to conformity assessment procedures. The EU agrees with Ukraine that, on
the basis of the text of Article 5.1.1, three elements would need to be demonstrated in order to
establish a violation of said provision, namely: (i) that the measure at issue is a conformity
assessment procedure; (ii) that products of suppliers from the WTO Member concerned are like
products of national origin or originating in other countri es; and (iii) that those suppliers are
granted access under conditions less favourable than those accorded to suppliers of like domestic
products and suppliers of like products originating in any other country, in a comparable situation.
While there is no contention between the Parties as to the first element, they disagree on the
second and third element.
8. First, with respect to the requirement that the products of suppliers from the WTO Member
concerned are like products of national origin or originating in other countries, the EU submits that
in light of the similarities in its text and structure of Article 2.1 of the TBT Agreement, the
requirement under Article 5.1.1 calls for an analysis similar to that applied in Article 2.1.
9. The first step in a l ikeness examination is to identify the domestic and imported products
that must be compared. 6 The products to be compared for the purposes of determining their
likeness in the context of this dispute would appear to be Russian railway equipment and parts
thereof, Ukrainian railway equipment and parts thereof, as well as railway equipment and parts
thereof originating in any other country. As the panel in US – COOL confirmed, when distinction
between the products at issue is that of origin, they can be considered as "like products".7
10. Second, with respect to the requirement that suppliers be granted access under conditions
less favourable than those accorded to suppliers of like domestic products and suppliers of like
products originating in any other country, when they are in a comparable situation, the EU submits
that circumstances such as war or civil unrest may objectively make it impossible for on -site
inspections to take place in a given country and on a given moment in time. Such circumstances
could entail that the suppliers in the country concerned would not be in a situation comparable to
that of the suppliers in other countries, which are not afflicted by war or civil unrest, for the
purposes of the analysis under Article 5.1.1. In the alternative, the European Union submits that
the difference in treatment in light of a particular security situation will not amount to less
favourable treatment, when it constitutes a legitimate regulatory distinction.
III. MEASURE III
A. The scope of Article 2.1 TBT
11. Article 2.1 of the TBT Agreement applies to treatment accorded "in respect of" a technical
regulation. It may thus encompass measures which are not, in and of themselves, technical
regulations within the meaning of the TBT Agreement. In par ticular, A rticle 2.1 of the
TBT Agreement does cover inter alia measures taken in order to "apply" a technical regulation. At
the same time, Article 2.1 of the TBT Agreement cannot be interpreted in an overbroad manner,
which would interfere with other, more specifi c and detailed disciplines stipulated elsewhere in the
TBT Agreement. The EU notes in this regard that Article 6 of the TBT Agreement addresses
specifically the "recognition of conformity assessment by central government bodies". Reading
Article 2.1 of the TBT Agreement as applying to the recognition of certificates of conformity issued
by other countries would duplicate unnecessarily the more detailed rules contained in Article 6 and
may create conflicts between the two provisions. Therefore, the EU is of the view that Article 6 is
lex specialis with regard to the recognition of certificates of conformity issued by other countries
and excludes the application of Article 2.1.
12. Should the Panel, nevertheless, conclude that Article 2.1 and Article 6 of the TBT Agreement
can be applied concurrently, the EU submits in the alternative that the obligations imposed by
Article 2.1 must be interpreted harmoniously with the more detailed rules contained in Article 6.

6 Panel Report, US – Clove Cigarettes, para. 7.124.
7 Panel Report, US – COOL, paras 7.253-7.256.

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More specifically, a Member cannot be required, pursuant to Article 2.1, to recognise a certificate
issued by another Member in circumstances where it would have been permitted to deny such
recognition in accordance with the more specific criteria laid down in Article 6.1.
B. Claims under Articles 5.1.1 and 5.1.2 of the TBT Agreement
13. The EU understands that the alleged requirement whereby only the entities registered in a
CU country could apply for certification to a certification body located in that CU country would
apply indistinctly to all applic ants, regardless of the origin of the goods supplied by each of them.
In view of that, the alleged requirement would not appear to accord de iure less favourable
conditions to the suppliers of Ukrainian goods.
14. Ukraine, however, appears to claim that th e alleged requirement violates de facto
Article 5.1.1 because it places an "additional burden" 8 on the suppliers of imported products given
that, in practice, the suppliers of domestic goods will already be registered in Russia. The EU
considers that, in l ight of its similarities with the text and stru cture of Article 2.1 of the
TBT Agreement, the determination of de facto discrimination under Article 5.1.1 calls for an
analysis similar to that applied under Article 2.1. In particular, this means that, in c ase of de facto
discrimination, the mere existence of a "detrimental effect", such as the one invoked by Ukraine,
would not be sufficient to demonstrate a violation of Article 5.1.1. In addition, it would have to be
established that such detrimental impact "does not stem exclusively from a legitimate regulatory
distinction", but rather reflects prohibited discrimination.9
15. Neither Ukraine nor Russia have addressed the second element of the proposed test for the
application of Article 5.1.1 in cases invo lving de facto discrimination. Nevertheless, as noted
above, Russia has argued, in response to Ukraine's claim under Article 5.1.2, that the requirement
at issue is necessary in order to "ensure compliance with the requirements of this CU technical
regulation and to bea r responsibility for non -compliance of the products with the requirements of
this CU technical regulation" 10. At first sight, that objective fits within the objective mentioned in
the last sentence of Article 5.1.2 (i.e. giving the importing Member "adequa te confidence" that
products conform with the applicable technical regulations) and must therefore be regarded as a
"legitimate" objective. In view of this, the Panel should analyse whether the "additional burden"
alleged by Ukraine "stems exclusively" fro m a requirement designed to achieve that objective or
rather reflects prohibited discrimination against imported goods.
C. Article 5.1.2.
16. Ukraine appears to consider that a requirement to the effect that the applicant must be
registered in any of the CU countries would not be incompatible with Article 5.1.2. Rather, what
Ukraine finds objectionable is the alleged requirement that the applicant must be registered in the
same CU country where the certification body is based. The EU agrees that the distin ction drawn
by Ukraine between these two situations may indeed be relevant for the purposes of Article 5.1.2.
17. The EU recalls that Russia has agreed to recognise the certificates of conformity with
Technical Regulation No. 0001/2011 issued by the authorities of the other CU countries. In view of
this, the requirement alleged by Ukraine could not be regarded as "necessary" for the purposes of
Article 5.1.2 unless it could be shown that the mere fact that the certification is applied for in a CU
country o ther than the CU of registration of the applicant would make it more difficult for the
authorities of the former CU country to ensure complianc e with Technical Regulation
No. 0001/2011. Furthermore, it would have to be shown that any such additional diffic ulties
cannot be properly addressed in a less trade -restrictive manner. For example, by ensuring
adequate cooperation among the competent authorities of the various CU countries within the
framework of the agreement establishing the customs union or its im plementing measures. So far,
however, there appears to be no evidence or argument in the record that would support such
contention.

8 Ukraine's first written submission, para. 342.
9 See e.g. Appellate Body Report, US – Clove Cigarettes, para. 182.
10 Russia's first written submission, para. 149.

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D. Claims under Articles I:1 and III:4 of the GATT 1994
18. Russia's claims under Article I:1 and Article III:4 of the GATT 1994 based on the alleged
requirement that only products manufactured in a CU country can be certified under Technical
Regulation No 0001/2011 raise similar issues as Russia's cla im under Article 2.1 of the
TBT Agreement with regard to the same requirement . Therefore, the EU refers to its previous
observations.
19. In turn, Russia's claim under Article III:4 of the GATT 1994 with regard to the alleged
requirement that the applicant for certification must be based on the same CU country as the
certification body raises similar issues as Ukraine's claim under Article 5.1.1 of the TBT Agreement
with regard to the same requirement. Whereas the objective pursued by this requirement does not
have to be considered in order to establish a violation of Article III:4 of the GATT, that objective
could become relevant in order to determine whether the "additional burden" alleged by Ukraine is
justified under one of the exceptions included in Article XX of the GATT 1994 and, in particular,
under Article XX(d).

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ANNEX D-3
EXECUTIVE SUMMARY OF THE ARGUMENTS OF INDONESIA
I. THE REQUEST MUST PROVIDE A BRIEF SUMMARY OF THE LEGAL BASIS OF THE
COMPLAINT SUFFICIENT TO PRESENT THE PROBLEM CLEARLY UNDER ARTICLE 6.2 OF
THE DSU

1. With respect to the request for the establishment of a panel, Article 6.2 of the DSU requires
Members to provide the request in writing, indicate whether consultations were held, identify the
specific measures at issue, and provide a brief summary of the legal basis of the complaint
sufficient to present the problem clearly.

2. Next, whether the legal basis of the complaint sufficient to present the problem clearly,
Indonesia suggested that Panel must conduct case by case analysis in examining the connection of
the challenged measures with the provisions of the covered agreements claimed to have been
infringed; and whether the ability of the respondent to defend itself was prejudiced.

II. LEGAL STANDARD TO PROVE THE EXISTENCE OF UNWRITTEN MEASURE(S)

3. Finally, Indonesia is of the view that to prove the existence of unwritten measure (Measure I
in the current case), the complainant must submit evidence to prove the existence of Measure I by
fulfilling the conditions as follow: (i) that the measure is attributable to the respondent; (ii) the
precise content of the measure; (iii) how the different components of the alleged measure operate
together as a single measure; and (iv) how a single measure exists a s distinct from its
components.

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ANNEX D-4
EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
I. UKRAINE'S CHARACTERIZATION OF THE MEASURE AS "SYSTEMATIC PREVENTION"
1. Japan considers that the interpretive approach developed by the Appellate Body for
unwritten measures consisting of a "systematic application" can provide helpful guidance in this
case, particularly for the assessment of whether the alleged measure exists. The Panel should
carefully scrutinize whether the alleged "systematic prevention" exists as an unwritten, single
measure. This, in turn, requires the Panel to determine whether a complainant has demonstrated
that the individual measures operate together as part of a single measure by virtue of the
underlying "organized effort" undertaken in support of a particular "aim", and that the "systemic
prevention" exists as a single measure that is distinct from its constituent, individual actions in the
light of the underlying "organized effort" and its underlying objectives . Japan is of the view that
these requirements should be examined through a comprehensive and objective analysis of the
structure and application of the alleged measure.
2. Moreover, in Japan’s view, it is vitally important for a complainant to describe the challenged
measure clearly and identify each of its constituent elements. It is equally important for the panel
to confirm whether the complainant has provided sufficient proof of each constituent element and
whether those elements are sufficient to establ ish the existence of the unwritten measure as
characterized by the complainant.
3. In the present case, while Japan has no intention to comment on the specific facts of this
case, Japan believes that the Panel will at least need to assess whether Ukrainian railway products
are "prevented from being imported " into Russia by the domestic, constituent measures, that is,
the suspension of certificates, the refusal to issue certificates, and the non -recognition of
certificates. The Panel will also need to assess the measure’s "systematic" nature in order to
ascertain whether Measure I exists as described and characterized by Ukraine.
II. ARTICLE 5.1.1 OF THE TBT AGREEMENT
4. The terms "no less favorable" in Article 5.1.1 of the TBT Agreement have not been
interpreted by a panel or the Appellate Body. Japan believes that Article 2.1 of the TBT Agreement
provides context and that the elements of context and object and purpose considered by the
Appellate Body in relation to Article 2.1 are equally applicable to Article 5.1.1.
5. Similarly to technical regulations, CAPs may give rise to the detrimental impact caused by
different conditions of access to CAPs between suppliers of like products of different origins .1 This
suggests that Article 5.1.1 should not be read to mean that any difference in conditions of access
to CAPs would per se accord less favorable treatment. The sixth recital of the TBT Agreement also
provides relevant context regarding the ambit of the "no less favourable " requirement i n
Article 5.1.1 because the sixth recital applies to "measures" covered by the TBT Agreement in
general. The object and purpose of the TBT Agreement , which is to strike a balance between, on
the one hand, the objective of trade liberalization and, on the o ther hand, Members' right to
regulate2, is relevant for understanding the disciplines on CAPs in Article 5.1.1.
6. As the context as well as object and purpose considered in Article 2.1 are equally applicable
to Article 5.1.1 which also bears a similarity to Article 2.1 in language and structure, Japan's view
is that the rationale for allowing legitimate regulatory distinctions also applies to Article 5.1.1.
Nevertheless, apart from the obvious difference in coverage , Japan observes two noteworthy
differences between the two provisions which may affect the legal test under Article 5.1.1: (i)
while Article 2.1 regulates different treatments between like products, the text makes it clear that

1 For example, depending on the location of an inspection point, CAPs may give rise to a trade
restricting effect on products from a particular country.
2 Appellate Body Report, US – Clove Cigarettes, paras. 173-174.

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Article 5.1.1 regulates differences in conditions of access to CAPs between suppliers of like
products;3 and (ii)Article 5.1.1 ensures no less favourable conditions for granting access to CAPs
for suppliers of like products, in contrast to no less favourable treatment accorded to like products
required by Article 2.1.
7. Thus, to the extent that Ukraine is making a claim of de facto discriminatory conditions (for
granting access to CAPs) rather than alleging that legal instruments relating to the CAPs on their
face provide discriminatory conditions ( de jure discrimination), Japan considers that the Panel
should apply the following two-part test:
(i) Whether access to the CAPs concerned is granted to 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 of Russian origin or
suppliers of like products originating in any other Member, in a comparable
situation, and
(ii) If so, whether the detriment al impact arising from different conditions
(for granting access to the CAPs concerned) stems exclusively from a legitimate
regulatory distinction rather than reflecting discrimination against the suppliers of
Ukrainian railway products. In applying this t est, the Panel must carefully
scrutinize the particular circumstance s of the case, that is, the design,
architecture, revealing structure, operation, and application of the CAPs
concerned, and, in particular, whether the procedures are even-handed.
8. Japan notes that Article 5.1.1 only applies when discrimination occurs between suppliers in a
"comparable situation." Japan understands a "comparable situation" to be a situation that is
capable of being compared, and the term potentially encompass es a relativ ely broad range of
situations. At the same time, the comparison under Article 5.1.1 should not be made between any
suppliers in a comparable situation but only suppliers in a comparable situation who provide like
products. This means that the subject of the comparison under Article 5.1.1 is limited in two ways;
suppliers should be dealing with like products and such suppliers must be in a comparable
situation. The requirement of "a comparable situation" should be examined before applying the
two-part test described above , which requires the conditions of access for suppliers "in a
comparable situation" to be compared.
9. As regards the first prong of the test above, Japan notes that Article 5.1.1 requires an
adjudicator to consider whether the "conditions" under which access to the CAP s is granted to
suppliers of Ukrainian products are no less favorable than those under which such access is
granted to suppliers of like products of Russian origin or originating in any other country. It is
insufficient to simply identify suppliers that did not obtain access or instances of denial of access .
Instead, the "conditions" that granted or restricted their access must be shown and be compared.
Thus, a complaining Member must identify the "conditions" for granting the access to the CAPs and
explain how the conditions allegedly differed to the detriment of suppliers of Ukrainian products.4
10. Turning to the second prong of the test above, Japan first observes that Article 5.1.1 should
examine whether the detrimental impa ct on suppliers of Ukrainian products caused by the
conditions granting access to the CAPs can be reconciled with, or is rationally related to, the CAP's
objective of assuring conformity with the relevant technical regulation, rather than reflecting
discrimination against suppliers of Ukrainian products . This involves looking at the particular

3 However, Japan understands Article 5.1.1 of the TBT Agreement ultimately proscribes discriminatory
treatment between like products based on their origin. Apart from the fact that the TBT Agreement is an
agreement on trade in goods, this reading is confirmed by the text of Article 5.1.1, which compares conditions
of access accorded to suppliers of "like products originating in the territories of other Members" and those
accorded to suppliers of "like products of national origin or originating in any other country." This view is
further buttressed by Article 5.1, which reads that "… their central government bodies apply the following
provisions to products originating in the territories of other Members". Japan submits that Article 5.1.1
protects the equal condition of competition between like products by ensuring no less favourable conditions of
access to CAPs for suppliers of like products because it is suppliers, and not products, that are granted access
to CAPs.
4 Japan notes that due consideration should be given to the fact that a complaining Member may face
difficulty in identifying the relevant "conditions" when information provided by the competent body to the
applicant under Article 5.2.2 of the TBT Agreement is insufficient or inaccurate.

- D-13 -

circumstances of the case, that is, the design, architecture, revealing structure, operation, and
application of the CAP s at issue, and, in particular, whether they a re even-handed, in order to
determine whether they discriminate against the suppliers of like products originating from
Ukraine.5
11. Therefore, in the present case, while Japan has no intention to comment on the specific facts
of this case, Japan believes that the Panel should carefully examine whether the conditions
allegedly giving rise to restrictions or denial of access to the CAP s for suppliers of Ukrainian
products are justified or even-handed, or have legitimate grounds. In this regard, Japan considers
that the question of whether the security situation in Ukraine indeed makes it impossible for
Russian officials to carry out inspection control and, if so, thus justifies different conditions of
access to the CAPs should be addressed under the second step of the two-part test.
12. Second, w ith regard to the burden of proof, Japan believes the analysis provided by the
Appellate Body in US – Tuna II (Mexico) (Article 21.5 – Mexico) in the context of Article 2.1 of the
TBT Agreement provides useful guidance. Under Article 5.1.1, a complainant would first have to
make a prima facie case by presenting evidence and arguments sufficient to establish that the
challenged CAPs have a detrimental impact and are not even -handed. This burden should not be
construed rigidly because the respondent is best situated to explain the challenged CAPs. The
burden of proof then should shift to the respondent to rebut the complainant's prima facie case by,
in particular, explaining why any detrimental impact caused by the conditions for granting access
to the CAPs stems exclusively from a legitimate regulatory distinction.
13. Lastly, in evaluating the explanations provided by the importing Member during this panel
proceeding, if the Panel finds any inconsistency between the reasons provided in the determination
of the competent authority at the time conformity was assessed, which are required under
Article 5.2.2 of the TBT Agreement, and an explanation provided ex post (i.e. explanation provided
during this panel proceed ing), such inconsistency would raise doubts about the explanation made
ex post. Therefore, Japan believes that, when such inconsistency exists, the panel should examine
carefully whether the ex post explanation is supported by objective evidence.
III. ARTICLE 5.1.2 OF THE TBT AGREEMENT
14. The first sentence of Article 5.1.2 requires Members to ensure that conformity assessment
procedures are not prepared, adopted or applied with a view to or with the effect of creating
unnecessary obstacles to internationa l trade. Japan understands that this provision makes
operational one of the TBT Agreement 's purposes of "ensur[ing] that technical regulations and
standards, including … procedures for assessment of conformity with technical regulations and
standards do not create unnecessary obstacles to international trade" as set out in the fifth recital
of the preamble of the Agreement.
15. The second sentence is connected to the first sentence by the term "inter alia". Based on the
ordinary meaning of the term "inter alia", Japan agrees with the interpretation of the panel in EC－
Seal Products that Article 5.1.2 "consists of general obligations, set out in the first sentence, and
an example of the general obligations, set out in the second sentence". Thus, a violation of the
general obligation in the first sentence could be established by showing a breach of the second
sentence.6 Moreover, the use of the term "inter alia" suggests that a violation of the second
sentence of Article 5.1.2 is only one way in which a breach of the first sentence could be
established. This is a notable difference when compared with the legal test under Article 2.2.7
16. However, there are "similarities in [the] text and structure " between Article 2.2 and
Article 5.1.2, second sentence, as noted by the panel in EC－ Seal Products .8 In addition, both
Articles 2.2 and 5.1.2 reflect the objective of prohibiting unnec essary obstacles to international
trade stated in the fifth recital. 9 For these reasons, J apan submits that the case law relating to
Article 2.2 provides pertinent and important guidance for interpreting Article 5.1.2, second
sentence. Therefore, Japan considers that the relational analysis applied under Article 2.2 of the

5 See Appellate Body Report, US – Clove Cigarettes, para. 182.
6 Panel Report, EC－ Seal Products, paras. 7.512-7.513.
7 Appellate Body Report, US－ Tuna II (Mexico), para. 318.
8 Panel Report, EC－ Seal Products, para. 7.539.
9 Appellate Body Report, US－ Clove Cigarettes, para. 93.

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relevant factors and the comparison of the challenged measure to possible alternative measures ,
which in most cases is required, should be similarly undertaken under the second sentence of
Article 5.1.2.
17. Japan further notes that the second sentence of Article 5.1.2 specifies that the purpose of
CAPs is "to give the importing Member adequate confidence that products conform with the
applicable technical regulations or standards ". Moreover, the sixth recital of the preamble of the
TBT Agreement recognizes that a Member shall not be prevented from taking measures necessary
to achieve its legitimate objectives "at the levels it considers appropriate ". In Japan's view, this
language indicates that the importing Member has certain latitude to determine the level of
confidence that it considers "adequate" or "appropriate".
18. In particular, while a conformity assessment will generally comprise some combination of
testing, inspection and sampli ng, the specific type of CAPs applied by each Member depends on
the degree of confidence in conformity sought by the Member. The degree of confidence pursued,
in turn, reflects considerations by each Member of such factors as the nature of the product in
question, the level of risk entailed by non -compliance with the applicable regulation, and
supporting quality infrastructure. Japan submits that while the importing Member has certain
latitude to determine the level of confidence it pursues, based on which the specific type of CAPs is
chosen, in order to ensure that this discretion is properly exercised and that it is subject to
appropriate review, it is crucial that the regulating Member not only identify the technical
regulation or standard with which CAP s are verifying compliance, but also identify, as precisely as
possible, the degree of confidence it pursues through its CAPs.
19. Japan considers that a panel adjudicating a claim under Article 5.1.2 should ascertain to
what degree the challenged CAPs, as written and applied, contribute to the objective of giving the
importing Member adequate confidence that products conform with the applicable technical
regulations or standards. In the case of CAPs, the degree of contribution will be closely related to
the degree of confidence required by the regulating Member.
20. The second sentence of Article 5.1.2 also uses the comparative "more … than". Accordingly,
if the challenged measures are found to be "conformity assessment procedures" within the
meaning of Anne x 1 to the TBT Agreement, Japan submits that the analysis under the second
sentence of Article 5.1.2 would normally require a comparison of the CAP s and a possible
alternative measure. In this comparison, the elements to be considered are: (i) whether the
alternative measure is less trade restrictive compared to the challenged CAP s; (ii) whether the
alternative measure is reasonably available; and (iii) whether the alternative measure would make
an equivalent contribution to giving the importing Member adeq uate confidence that products
conform with the applicable technical regulations or standards, (iv) taking account of the risks
non-conformity would create.10
21. In the present case, while Japan has no intention to comment on the specific facts of this
case, Japan believes that one of the key factors to be scrutinized is the degree of contribution that
the CAPs at issue make to ensuring that railway products conform with the applicable technical
regulation with the degree of confidence pursued by Russia. Then, it must be examined whether
Ukraine has demonstrated that the identified measures are less strict (or are less strictly applied),
reasonably available alternative measures that make the same contribution to ensuring the
products' conformity as the challenged CAP s, taking into account the risks non -conformity would
create.
22. As regards th e burden of proof under Article 5.1.2, Japan considers that, similar to
Article 2.2, a complainant must make a prima facie case by presenting evidence and arguments
sufficient to establish that the challenged CAP s are applied more strictly than necessary t o
adequately assure the importing Member that the products at issue conform with the applicable
technical regulations, taking account of the risks non -conformity would create. Similar to
Article 5.1.1, this burden should not be construed rigidly because the respondent is best situated
to explain the challenged CAPs. Once the complainant has identified any alternative CAPs that are
applied less strictly, make an equivalent contribution to guaranteeing the products' conformity with

10 Appellate Body Report, US－ Tuna II (Mexico), paras. 318 and 320.

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the applicable technical regulations, and are reasonably available, the burden of proof should shift
to the respondent to rebut the prima facie case.11
23. Lastly, similar to the discussion presented in Article 5.1.1, if the Panel finds any
inconsistency between the reasons provided in the determination of the competent authority at the
time conformity was assessed, which are required under Article 5.2.2 of the TBT Agreement , and
an explanation provided ex post , the panel should examine carefully whether the ex p ost
explanation is supported by objective evidence.

11 See Appellate Body Reports, US－ Tuna II (Mexico), para. 323 and US－ COOL, para. 379.

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ANNEX D-5
EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES
EXECUTIVE SUMMARY OF U.S. THIRD PARTY WRITTEN SUBMISSION
I. ESTABLISHING THE EXISTENCE OF AN UNWRITTEN MEASURE
1. The first challenged measure consists, allegedly, of the "systematic prevention of Ukrainian
railway products from being imported into [Russia]. " Ukraine claims Russia implements this
measure by suspending conformity assessment certificates of Ukrainian suppliers, refusing to issue
new certificates, and not recognizing certificates issued by other Customs Union (CU) members .
Russia claims Ukraine has failed to prove the measure exists.
2. Articles 7.1 and 6.2 of the DSU establish that, to be within a panel 's terms of reference, a
measure must exist at the time of the panel 's establishment. Article 7.1 provides that, unless
otherwise decided, a panel 's terms of reference are "[t]o examine . . . the matter referred to the
DSB" by the complainant in its panel r equest. Under DSU Article 6.2, the "matter" to be examined
by the DSB consists of "the specific measures at issue " and "brief summary of the legal basis of
the complaint. " As the Appellate Body recognized in EC – Chicken Cuts , "[t]he term ‘specific
measures at issue ' in Article 6.2 suggests that, as a general rule, the measures included in a
panel's terms of reference must be measures that are in existence at the time of the establishment
of the panel." Thus, to seek findings from the DSB on a challe nged measure, a complainant must
establish that the measure existed at the time of the panel's establishment.
3. The burden of making this showing is not, in principle, different when the measure at issue
is an unwritten measure as opposed to a written m easure. The text of DSU Article 3.3 makes this
clear, stating that the dispute settlement system addresses any "measures taken by another
Member" that a Member alleges impair benefits accruing to it under the covered agreements.
Thus, for written or unwrit ten measures alike, what the complainant must establish is that "the
measure it challenges is attributable to the respondent, as well as the precise content of that . . .
measure, to the extent that such content is the object of the claims raised. " Thus, c ontrary to
Russia's arguments, there are not unique, "very specific" requirements for proving the existence of
an unwritten measure; a Member is simply required to show, by evidence and argument, that the
challenged measure, as described in its submission, actually exists.
II. ARTICLE I:1 OF THE GATT 1994
4. Ukraine challenges Measure I under Article I:1 of the GATT 1994. To establish that a
measure is inconsistent with Article I:1, a Member must show: (1) the measure falls within the
scope of Article I:1; (2) the measure confers an "advantage, favour, privilege, or immunity " to
some "product originating in or destined for any other country "; (3) the products at issue are "like
products"; and (4) the advantage is not "accorded immediately and unconditionally to the like
product originating in . . . the territories of all other Members."
5. With respect to the first element, the text of Article I:1 conveys the broad scope of the types
of measures potentially covered by the provision. As past reports have found , "rules and
formalities in connection with importation " encompasses "a wide range of measures. " Russia
asserts that Ukraine has failed to satisfy the first element because it failed to argue or prove that
the challenged measure is a "rule or norm of general application." However, nothing in the DSU or
the text of Article I:1 establishes a general requirement that a Member challenging an unwritten
measure make such a showing. Indeed, panels and the Appellate Body have confirmed the broad
scope of Article I: 1, in terms of the types of measures it covers. Therefore, if the Panel finds that
Ukraine has proven the existence of the measure it alleges, that measure would appear to
constitute a "rule[] . . . in connection with importation" within the scope of Article I:1.
6. As to the second element, Article I:1 applies to "any advantage" accorded to the products of
"any Member." Ukraine has explained that obtaining a conformity assessment certificate is "the
only way for railway products to enter the Russian market ," that exporting to Russia is "a very
favourable market opportunity" for Ukraine. Russia has not disputed this element is met.

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7. As to the "like products" element, whether products are "like" is a fact-specific analysis that
must be done on a case -by-case basis. In certain circumstances – where the "difference in
treatment between domestic and imported products is based exclusively on the products ' origin" –
panels have conducted a "hypothetical like product analysis. " In all those instances, the measure
at issue, on its face, discriminated between products solely on the basis of national origin. Where
this is not the case, reports have analyzed whether products are "like" based on, inter alia: (i) "the
products' properties, nature, and quality "; (ii) "the products' end-uses"; (iii) "consumers' tastes
and habits – more comprehensively termed consumers ' perceptions and behavior – in respect of
the products"; and (iv) "the products' tariff classification."
8. With respect to the final element, Article I:1 requires that "any advantage granted by a
Member to imported products must be made available ‘unconditionally, ' or without conditions, to
like imported products from all Members. " The Appellate Body has recognized that Art icle I:1
applies to any conditions "that have a detrimental impact on the competitive opportunities for like
imported products from any Member." Thus, "where a measure modifies the conditions of
competition between like imported products to the detriment o f the third -country imported
products at issue, it is inconsistent with Article I:1. " Russia argues Ukraine has not satisfied this
element because it has not shown that the alleged prevention of imports of railway products is
"due to their Ukrainian origin" and because certain Ukrainian producers still hold certificates. But if
a measure has a "detrimental impact" on the competitive opportunities of products of a Member,
an assessment of whether the products ' origin was the cause of the detrimental impact i s not
required. Further, the fact that a limited number of Ukrainian producers have been able to obtain
or retain valid certificates is not decisive. The relevant inquiry is whether the advantage at issue is
accorded unconditionally to the group of Ukraini an like products. Ukraine has put forward
significant evidence suggesting that the group of Ukrainian products is not accorded the relevant
advantage on the same terms as the group of like products of other Members.
III. ARTICLE 5.1.1 OF THE TBT AGREEMENT
9. Ukraine has brought claims under Article 5.1.1 of the TBT Agreement against Measure II,
the "instructions to suspend certificates and decisions to refuse to issue new certificates, " and
Measure III, the "decision . . . not to accept in [Russian] territory the validity of the conformity
assessment certificates issued to Ukrainian producers in other CU countries. " To establish that a
measure is inconsistent with Article 5.1.1, a complaining Member must demonstrate three
elements in addition to those required under the Article 5.1 chapeau: (1) the measure concerns a
"conformity assessment procedure"; (2) the products at issue are "like products"; and, (3) access
to the CAP is granted on a "less favourable " basis to suppliers of products originating in the
territory of a Member than to "suppliers of like products of national origin or originating in any
other country, in a comparable situation."
10. As to the first element, Annex 1 of the TBT Agreement defines a "conformity assessment
procedure" as "[a]ny procedure used, directly or indirectly, to determine that relevant
requirements in technical regulations or standards are fulfilled. " The parties do not contest that
this element is satisfied with respect to Measures II and III. The second element, whet her the
products at issue are "like products," is analogous to the analysis under other provisions of the
WTO Agreements, including Article I:1 of the GATT 1994, as discussed above.
11. The third element entails comparing the "access" granted suppliers of products of a
complaining Member and suppliers of like products of other Members, "in a comparable situation."
"Access" is defined as entailing the "right to an assessment of conformity under the rules of the
procedure." Thus, the comparison is between the right to an assessment granted to suppliers of
products of the complaining Member and to suppliers of products of other Members. Further, the
comparison is between the access granted to suppliers of like products of another Member, "in a
comparable situat ion." The definition of "comparable" is "able to be compared. " "Compare," in
turn, means "liken, pronounce similar " and "be compared; bear comparison; be on terms of
equality with." The word thus suggests that two things are of the same type, such that they can be
compared, and that they are "similar" or equal.

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IV. ARTICLE 5.1.2 OF THE TBT AGREEMENT
12. Ukraine also challenges Measures II and III under Article 5.1.2 of the TBT Agreement. For a
Member to establish that a measure is inconsistent with Article 5.1.2, it must show, in addition to
the two elements of the chapeau of Article 5.1, that the measure involves a CAP and that such CAP
is "prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles
to international trade. " The second sentence of Article 5.1.2 describes a way a measure could be
applied that would contravene the obligation of the first sentence.
13. The first element of Article 5.1.2, that the measure at issue involves a "conformity
assessment procedure," is the same as the first element of Article 5.1.1, discussed above. With
respect to the second element, a key inquiry is whether a conformity assessment procedure is with
a view to or with the effect of creating "unnecessary obstacles to international trade. " The
pertinent definition of "obstacle" is "a thing that stands in the way and obstructs progress ; a
hindrance; an obstruction. " "Necessary" refers to something that "cannot be dispensed with or
done without; requisite; essential; needful. " An "unnecessary obstacle " to trade thus suggests
something that blocks or hinders trade between Members that is not requisite or essential.
14. The second sentence of Article 5.1.2 states that "[t]his means … that conformity assessment
procedures shall not be more strict or more strictly applied than is necessary to give the importing
Member adequate confidence that products conform with the applicable technical regulations or
standards." Thus, under Article 5.1.2, an "unnecessary obstacle" is one that is not "necessary to
give the importing Member adequate confidence" that products conform to the applicable technical
regulation or standard. As to the level of confidence, Article 5.1.2 refers to "adequate confidence .
. . taking account of the risks non-conformity would create."
15. The parties argue that the text of Article 5.1.2 is si milar to Article 2.2 of the TBT Agreement
and, on this basis, frame their arguments based on a framework developed under Article 2.2. That
is, they dispute whether Ukraine has satisfied Article 5.1.2 based on whether it has proven the
existence of a less trade -restrictive alternative mea sure that makes an equivalent contribution to
assuring conformity with the relevant technical regulations. Article 5.1.2 does not require a
complaining party to identify or establish a less trade -restrictive alternative measure that provides
adequate confi dence. But assessment of a proposed alternative measure may be used as a
conceptual tool for assessing whether a measure breaches Article 5.1.2.
16. There are textual differences between the provisions to bear in mind when analogizing the
legal standard of Article 2.2 to that of Article 5.1.2. Article 2.2 refers to an undefined category of
"legitimate objective[s]," whereas Article 5.1.2 indicates that the objective of a CAP is to assure
that products conform to the relevant technical regulation. Further Ar ticle 2.2 refers to the
"fulfill[ment]" of objectives, which refers to a Member 's right to achieve legitimate objectives "at
the levels it considers appropriate, " while Article 5.1.2 refers to "adequate confidence " that
products conform with a technical re gulation. Considering these differences, any analysis of
proposed alternative measures under Article 5.1.2 would concern the level of "confidence" that the
challenged measure provides, the extent to which the measure hinders trade, and how those
aspects of the measure compare to any proposed alternative measures.
17. Determining the level of "confidence" achieved by a CAP or a proposed alternative measure
is an objective analysis. As the Appellate Body found in the context of Article 2.2, the "degree of
achievement of a particular objective may be discerned from the design, structure, and operation
of the technical regulation, as well as from evidence relating to the application of the measure. "
As in its assessment of a measure's objective, a panel is not bound by a Member's characterization
of a measure 's contribution to a chosen level of confidence, but must "independently and
objectively assess " the contribution "actually achieved by the measure. " For example, Russia
argues that the practice of Belaru s and Kazakhstan is "outside the scope of the present article, as
the benchmark to be used in the analysis is the level of protection sought by Russia and not any
other country." While the United States agrees that the relevant level of protection is that "sought
by Russia," that does not mean that any differences between Russia 's practices and those of other
countries can be characterized as reflecting a different level of protection. Rather, the inquiry is
whether the content of the alternative measures p roposed by Ukraine reflects the same level of
"confidence" that the products at issue comply with the relevant technical regulations as the
challenged Russian measures.

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EXECUTIVE SUMMARY OF U.S. THIRD PARTY ORAL STATEMENT
I. SCOPE OF ARTICLE 2.1 AND ARTICLE 5.1 OF THE TBT AGREEMENT
18. Articles 2 and 5 of the TBT Agreement concern two different categories of measures. Article
2 concerns the preparation, adoption, and applications of technical regulations. To fall within the
scope of Article 2.1, a particular claim must be "in respect of" one or more "technical regulations,"
as defined in Annex 1.1 of the TBT Agreement. By contrast, Article 5 concerns conformity
assessment procedures, which are defined in Annex 1.3 of the TBT Agreement as a procedure "to
determine that relevant requirements in technical regulations or standards are fulfilled. " To fall
within the scope of Article 5.1, a claim must address the preparation, adoption, or application of a
"conformity assessment procedure " where a "positive assuranc e of conformity " with a technical
regulation or standard is required. Thus, while a single legal instrument may contain both a
technical regulation and an applicable conformity assessment procedure, Articles 2 and 5 cover
distinct matters through distinct disciplines.
19. Ukraine has challenged Measure III under Article 2.1 and Article 5.1, raising different
aspects of the measure in its claims. We recall that panels need address only those claims and
legal issues that "must be addressed in order to resol ve the matter in issue in the dispute. " Here,
Ukraine seemingly has advanced two competing explanations for the same conduct: (1) that
Technical Regulation 001/2011, as applied by Russia, precludes the importation of Ukrainian
products because they are not produced in the CU (under Article 2.1); and (2) that Ukrainian
entities are afforded less favorable conditions of access to the conformity assessment procedure
because they must be registered in the CU country issuing the conformity assessment certificate
(under Article 5.1). Therefore, the Panel must assess, as a matter of fact, whether Russia interprets
Technical Regulation 001/2011 or the related conformity assessment procedure as Ukraine alleges, i.e.,
whether the conduct described by Ukraine reflects application of the technical regulation itself or a
condition on access to the conformity assessment procedure. Resolution of this factual issue under
municipal law will make it clear whether Ukraine's claim against Measure III can be resolved under Article 2
or Article 5. For example, if the Panel finds that Russia does not apply Technical Regulation 001/2011
only to products produced in the CU, it would dispose of Ukraine's Article 2.1 claim.
EXECUTIVE SUMMARY OF U.S. RESPONSES TO PANEL QUESTIONS TO THIRD PARTIES
20. The Panel asked "to what extent the two -step analysis developed by the Appellate Body
under Article 2.1 can be applied to Article 5.1.1 " in "cases of alleged de facto discrimination." The
obligation set out in Article 5.1.1 of the TBT Agreemen t is substantively different from that set out
in Article 2.1. Textual differences between the provisions render the two -step analysis applied in
certain reports under Article 2.1 not appropriate in the context of Article 5.1.1.
21. Article 2.1 provides th at Members shall ensure that, in respect of technical regulations, like
products from one Member are "accorded treatment no less favourable " than like products of
another Member. In certain disputes, the Appellate Body found that "treatment no less favourable"
should be "assessed by examining whether a measure modifies the conditions of competition in
the relevant market to the detriment of imported products. " It also found that not all technical
regulations that have a "detrimental impact" on imports are inconsistent with Article 2.1. Rather, if
the detrimental impact "stems exclusively from a legitimate regulatory distinction, " the technical
regulation is not inconsistent with Article 2.1. Thus, Article 2.1 is an outcome -oriented provision.
It addresses t he "treatment" accorded products of different Members, and it requires that, if the
products of one Member receive less favorable treatment under a measure than the products of
another Member, that the difference be explained entirely by a "legitimate regulatory distinction."
Unsurprisingly, in every report in which the Appellate Body explained this standard, it emphasized
that the critical basis for the standard it articulated under Article 2.1 was the phrase "treatment no
less favourable."
22. Article 5.1.1 of the TBT Agreement, by contrast, does not concern the "treatment" accorded
products of different Members or suppliers of those products. Rather, it concerns the "access" to
conformity assessment procedures accorded to suppliers of like products origin ating in different
Members "in a comparable situation. " "Access" is defined as entailing "suppliers' right to an
assessment of conformity under the rules of the procedure. " Thus, Article 5.1.1 is about the rights
of suppliers of products originating in dif ferent Members to an assessment of conformity, "under
the rules of the procedure" established by the Member. It does not require any particular outcome

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in terms of the rate at which suppliers receive assessments under the procedure or the results of
those assessments.
23. This means that an apparent negative impact on the competitive opportunities of products
originating in a particular country does not have the same meaning or place in the analysis under
Article 5.1.1 as under Article 2.1. Specifically, the critical inquiry under Article 5.1.1 is not whether
there is a "detrimental impact"; it is whether suppliers of a Member are granted less favorable
"right[s] to an assessment of conformity " under the rules of the procedure as are suppliers of like
products of other Members in comparable situations.
24. For example, suppose suppliers of products originating in the territory of a Member, as a
group, were failing to receive assessments under the relevant conformity assessment procedure,
while suppliers of li ke products originating in other Members were receiving such assessments.
Article 5.1.1 provides that the relevant inquiry is not whether the suppliers of products of the first
Member are receiving less favorable "treatment" under the rules of the procedure. Rather, it is
whether their rights to an assessment of conformity, under the rules of the procedure, are less
favorable than those of suppliers of like products of other Members, in a comparable situation. A
critical inquiry in this regard could be whether the suppliers of products of the Member that were
failing to receive assessments were "in a comparable situation" as the suppliers of like products of
national origin or originating in another Member. But the mere fact t hat the rule of the conformity
assessment procedure at issue resulted in a detrimental impact on the suppliers of products of a
Member would not be necessarily suggest a potential claim under Article 5.1.1.
25. Conversely, there could be a breach of Artic le 5.1.1 even in the absence of any detrimental
impact. For example, if suppliers originating in the territory of a Member, as a group, were failing
to receive assessments under the relevant conformity assessment procedures and suppliers of
products of oth er Members were receiving conformity assessments but, as a group, were
invariably failing to receive positive assessments, there may be no detrimental impact on the
products of the first Member. There might, however, be a breach of Article 5.1.1 (depending on
whether the suppliers of the products of the Member and other Members were "in a comparable
situation") because "access" to the CAP is not given on a "no less favourable" basis to suppliers of
products of all Members. In this regard, we note that situa tions where a measure, including a
conformity assessment procedure, causes a detrimental impact on the products of a Member could
still be addressed under Articles I:1 and III:4 of the GATT 1994. Article 5.1.1 thus sets out an
additional obligation concerning the "access" to the conformity assessment procedures accorded to
suppliers of products of different Members. Situations where the rules of a CAP resulted in a
detrimental impact on the competitive opportunities of suppliers of products of certain Membe rs
might also be addressed under Article 5.1.2. That is, the reason that the CAP at issue provided
less favorable competitive opportunities for suppliers of products of one Member, as opposed to
others, might make it "more strict" or "applied more strictly" than necessary to give the importing
Member its chosen level of confidence that products conform with the applicable technical
regulation.
26. In short, the text of Article 5.1.1 sets out a different standard than the one past Appellate
Body reports hav e applied under Article 2.1. None of the third parties that have proposed
importing this Article 2.1 analysis have reconciled that approach with the text of Article 5.1.1.