UNITED STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 9 December 2022
Document codes: WT/DS544/R
Complainant: China
Respondent: U.S.
Third parties: Bahrain, Brazil, Canada, Colombia, Egypt, EU, Guatemala, Hong Kong, Iceland, India, Indonesia, Japan, Kazakhstan, Malaysia, Mexico, New Zealand, Norway, Qatar, Russia, Saudi Arabia, Singapore, South Africa, Switzerland, Taiwan, Thailand, Turkey, Ukraine, UAE, Venezuela
Dispute stage: Panel
Agreements cited: Art. XIX:1, XIX:2  GATT 1994Art. 2.1, 2.2, 4.1, 4.2, 5.1, 7, 11.1(a), 12.1, 12.2, 12.3  SafeguardsArt. II:1(a), II:1(b), I:1, X:3(a)  GATT 1994

UNITED STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM
PRODUCTS
REPORT OF THE PANEL

LIST OF APPENDICES
Contents Page
Appendix A Materials submitted by the parties on Uruguay Round negotiations of the
Agreement on Safeguards
4
Appendix B Materials submitted by the parties on the interpretation of Article XXI(b) of the
GATT 1994
11
LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Working Procedures of the Panel Revised on 19 July 2019 and 20 February 2020 10
Annex A-3 Additional Working Procedures of the Panel Concerning Meetings with
Remote Participation
16
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of the People's Republic of
China
19
Annex B-2 Integrated executive summary of the arguments of the United States of
America
35
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Egypt 42
Annex C-2 Integrated executive summary of the arguments of the European Union 45
Annex C-3 Integrated executive summary of the arguments of Hong Kong, China 50
Annex C-4 Integrated executive summary of the arguments of India 53
Annex C-5 Integrated executive summary of the arguments of Japan 56
Annex C-6 Integrated executive summary of the arguments of New Zealand 59
Annex C-7 Integrated executive summary of the arguments of Norway 62
Annex C-8 Integrated executive summary of the arguments of the Russian Federation 65
Annex C-9 Integrated executive summary of the arguments of Singapore 71
Annex C-10 Integrated executive summary of the arguments of Switzerland 76
Annex C-11 Integrated executive summary of the arguments of Türkiye 81
Annex C-12 Integrated executive summary of the arguments of Ukraine 86

CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Import
Measures
Panel Reports, Argentina – Measures Affecting the Importation of Goods,
WT/DS438/R and Add.1 / WT/DS444/R and Add.1 / WT/DS445/R and Add.1,
adopted 26 January 2015, as modified (WT/DS438/R) and upheld (WT/DS444/R
/ WT/DS445/R) by Appellate Body Reports WT/DS438/AB/R / WT/DS444/AB/R
/ WT/DS445/AB/R, DSR 2015:II, p. 783
Argentina – Textiles and
Apparel
Appellate Body Report, Argentina – Measures Affecting Imports of Footwear,
Textiles, Apparel and Other Items, WT/DS56/AB/R and Corr.1, adopted
22 April 1998, DSR 1998:III, p. 1003
Australia – Salmon
(Article 21.5 – Canada)
Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse
to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted 20 March 2000,
DSR 2000:IV, p. 2031
Australia – Tobacco Plain
Packaging
Panel Reports, Australia – Certain Measures concerning Trademarks,
Geographical Indications and other Plain Packaging Requirements applicable to
Tobacco Products and Packaging, WT/DS435/R, Add.1 and Suppl.1 (Honduras)
/ WT/DS441/R, Add.1 and Suppl.1 (Dominican Republic) / WT/DS458/R, Add.1
and Suppl.1 (Cuba) / WT/DS467/R, Add.1 and Suppl.1 (Indonesia),
WT/DS458/R and WT/DS467/R adopted 27 August 2018, DSR 2018:VIII,
p. 3925, and WT/DS435/R and WT/DS441/R adopted 29 June 2020, as upheld
by Appellate Body Reports WT/DS435/AB/R / WT/DS441/AB/R, DSR 2018:VIII,
p. 3925
Australia – Tobacco Plain
Packaging
Appellate Body Reports, Australia – Certain Measures concerning Trademarks,
Geographical Indications and other Plain Packaging Requirements applicable to
Tobacco Products and Packaging, WT/DS435/AB/R and Add.1 (Honduras) /
WT/DS441/AB/R and Add.1 (Dominican Republic), adopted 29 June 2020
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut,
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
Canada – Autos Panel Report, Canada – Certain Measures Affecting the Automotive Industry,
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate
Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, p. 3043
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive
Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000,
DSR 2000:VI, p. 2985
Canada – Periodicals Appellate Body Report, Canada – Certain Measures Concerning Periodicals,
WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, p. 449
Canada – Renewable Energy
/ Canada – Feed-in Tariff
Program
Appellate Body Reports, Canada – Certain Measures Affecting the Renewable
Energy Generation Sector / Canada – Measures Relating to the Feed-in Tariff
Program, WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013,
DSR 2013:I, p. 7
Canada – Wheat Exports
and Grain Imports
Appellate Body Report, Canada – Measures Relating to Exports of Wheat and
Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September 2004,
DSR 2004:VI, p. 2739
Chile – Price Band System Panel Report, Chile – Price Band System and Safeguard Measures Relating to
Certain Agricultural Products, WT/DS207/R, adopted 23 October 2002, as
modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, p. 3127
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted
23 October 2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)
Chile – Price Band System
(Article 21.5 – Argentina)
Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU
by Argentina, WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, p. 513
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile
Parts, WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted
12 January 2009, DSR 2009:I, p. 3
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry,
WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535
Colombia – Textiles Appellate Body Report, Colombia – Measures Relating to the Importation of
Textiles, Apparel and Footwear, WT/DS461/AB/R and Add.1, adopted
22 June 2016, DSR 2016:III, p. 1131
Dominican Republic –
Import and Sale of
Cigarettes
Panel Report, Dominican Republic – Measures Affecting the Importation and
Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, as modified by
Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425
Dominican Republic –
Safeguard Measures
Panel Report, Dominican Republic – Safeguard Measures on Imports of
Polypropylene Bags and Tubular Fabric, WT/DS415/R, WT/DS416/R,
WT/DS417/R, WT/DS418/R, and Add.1, adopted 22 February 2012,
DSR 2012:XIII, p. 6775

Short Title Full Case Title and Citation
EC and certain member
States – Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States –
Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted
1 June 2011, DSR 2011:I, p. 7
EC – Bananas III Panel Reports, European Communities – Regime for the Importation, Sale and
Distribution of Bananas, WT/DS27/R/ECU (Ecuador) / WT/DS27/R/GTM,
WT/DS27/R/HND (Guatemala and Honduras) / WT/DS27/R/MEX (Mexico) /
WT/DS27/R/USA (US), adopted 25 September 1997, as modified by Appellate
Body Report WT/DS27/AB/R, DSR 1997:II, p. 695 to DSR 1997:III, p. 1085
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation,
Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997,
DSR 1997:II, p. 591
EC – Bananas III
(Article 21.5 – Ecuador II)
Panel Report, European Communities – Regime for the Importation, Sale and
Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by
Ecuador, WT/DS27/RW2/ECU, adopted 11 December 2008, as modified by
Appellate Body Report WT/DS27/AB/RW2/ECU, DSR 2008:XVIII, p. 7329
EC – Bananas III
(Article 21.5 – Ecuador II) /
EC – Bananas III
(Article 21.5 – US)
Appellate Body Reports, European Communities – Regime for the Importation,
Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU
by Ecuador, WT/DS27/AB/RW2/ECU, adopted 11 December 2008, and Corr.1 /
European Communities – Regime for the Importation, Sale and Distribution of
Bananas – Recourse to Article 21.5 of the DSU by the United States,
WT/DS27/AB/RW/USA and Corr.1, adopted 22 December 2008,
DSR 2008:XVIII, p. 7165
EC – Bed Linen (Article 21.5
– India)
Appellate Body Report, European Communities – Anti-Dumping Duties on
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the
DSU by India, WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, p. 965
EC – Chicken Cuts Panel Reports, European Communities – Customs Classification of Frozen
Boneless Chicken Cuts, WT/DS269/R (Brazil) / WT/DS286/R (Thailand),
adopted 27 September 2005, as modified by Appellate Body Report
WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XIX, p. 9295 / DSR 2005:XX,
p. 9721
EC – Chicken Cuts Appellate Body Report, European Communities – Customs Classification of
Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted
27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157
EC – Computer Equipment Appellate Body Report, European Communities – Customs Classification of
Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R,
adopted 22 June 1998, DSR 1998:V, p. 1851
EC – Export Subsidies on
Sugar (Australia)
Panel Report, European Communities – Export Subsidies on Sugar, Complaint
by Australia, WT/DS265/R, adopted 19 May 2005, as modified by
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R,
DSR 2005:XIII, p. 6499
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping Measures on
Certain Iron or Steel Fasteners from China, WT/DS397/R and Corr.1, adopted
28 July 2011, as modified by Appellate Body Report WT/DS397/AB/R,
DSR 2011:VIII, p. 4289
EC – Fasteners (China)
(Article 21.5 – China)
Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China – Recourse to
Article 21.5 of the DSU by China, WT/DS397/AB/RW and Add.1, adopted
12 February 2016, DSR 2016:I, p. 7
EC – Hormones Appellate Body Report, European Communities – Measures Concerning Meat
and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted
13 February 1998, DSR 1998:I, p. 135
EC – IT Products Panel Reports, European Communities and its member States – Tariff
Treatment of Certain Information Technology Products, WT/DS375/R /
WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III,
p. 933
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the
Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998,
DSR 1998:V, p. 2031
EC – Seal Products Panel Reports, European Communities – Measures Prohibiting the Importation
and Marketing of Seal Products, WT/DS400/R and Add.1 / WT/DS401/R and
Add.1, adopted 18 June 2014, as modified by Appellate Body Reports
WT/DS400/AB/R / WT/DS401/AB/R, DSR 2014:II, p. 365
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the
Importation and Marketing of Seal Products, WT/DS400/AB/R /
WT/DS401/AB/R, adopted 18 June 2014, DSR 2014:I, p. 7
EC – Selected Customs
Matters
Appellate Body Report, European Communities – Selected Customs Matters,
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791

Short Title Full Case Title and Citation
India – Additional Import
Duties
Appellate Body Report, India – Additional and Extra-Additional Duties on
Imports from the United States, WT/DS360/AB/R, adopted 17 November 2008,
DSR 2008:XX, p. 8223
India – Agricultural Products Panel Report, India – Measures Concerning the Importation of Certain
Agricultural Products, WT/DS430/R and Add.1, adopted 19 June 2015, as
modified by Appellate Body Report WT/DS430/AB/R, DSR 2015:V, p. 2663
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and
Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998,
DSR 1998:I, p. 9
India – Solar Cells Panel Report, India – Certain Measures Relating to Solar Cells and Solar
Modules, WT/DS456/R and Add.1, adopted 14 October 2016, as modified by
Appellate Body Report WT/DS456/AB/R, DSR 2016:IV, p. 1941
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry,
WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, Corr.1 and Corr.2, adopted
23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201
Indonesia – Chicken Panel Report, Indonesia – Measures Concerning the Importation of Chicken
Meat and Chicken Products, WT/DS484/R and Add.1, adopted
22 November 2017, DSR 2017:VIII, p. 3769
Indonesia – Iron or Steel
Products
Panel Report, Indonesia – Safeguard on Certain Iron or Steel Products,
WT/DS490/R, WT/DS496/R, and Add.1, adopted 27 August 2018, as modified
by Appellate Body Report WT/DS490/AB/R, WT/DS496/AB/R, DSR 2018:VII,
p. 3707
Indonesia – Iron or Steel
Products
Appellate Body Report, Indonesia – Safeguard on Certain Iron or Steel
Products, WT/DS490/AB/R, WT/DS496/AB/R, and Add.1, adopted
27 August 2018, DSR 2018:VII, p. 3393
Japan – Alcoholic Beverages
II
Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and
Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, p. 1179
Peru – Agricultural Products Panel Report, Peru – Additional Duty on Imports of Certain Agricultural
Products, WT/DS457/R and Add.1, adopted 31 July 2015, as modified by
Appellate Body Report WT/DS457/AB/R, DSR 2015:VII, p. 3567
Peru – Agricultural Products Appellate Body Report, Peru – Additional Duty on Imports of Certain
Agricultural Products, WT/DS457/AB/R and Add.1, adopted 31 July 2015,
DSR 2015:VI, p. 3403
Russia – Pigs (EU) Panel Report, Russian Federation – Measures on the Importation of Live Pigs,
Pork and Other Pig Products from the European Union, WT/DS475/R and Add.1,
adopted 21 March 2017, as modified by Appellate Body Report
WT/DS475/AB/R, DSR 2017:II, p. 361
Russia – Railway Equipment Panel Report, Russia – Measures Affecting the Importation of Railway
Equipment and Parts Thereof, WT/DS499/R and Add.1, adopted 5 March 2020,
as modified by Appellate Body Report WT/DS499/AB/R
Russia – Tariff Treatment Panel Report, Russia – Tariff Treatment of Certain Agricultural and
Manufacturing Products, WT/DS485/R, Add.1, Corr.1, and Corr.2, adopted
26 September 2016, DSR 2016:IV, p. 1547
Russia – Traffic in Transit Panel Report, Russia – Measures Concerning Traffic in Transit, WT/DS512/R and
Add.1, adopted 26 April 2019, DSR 2019:VIII, p. 4301
Saudi Arabia – IPRs Panel Report, Saudi Arabia – Measures Concerning the Protection of Intellectual
Property Rights, WT/DS567/R and Add.1, circulated to Members on
16 June 2020, dispute terminated while appeal pending
Thailand – Cigarettes
(Philippines)
Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes
from the Philippines, WT/DS371/AB/R, adopted 15 July 2011, DSR 2011:IV,
p. 2203
Ukraine – Ammonium
Nitrate
Appellate Body Report, Ukraine – Anti-Dumping Measures on Ammonium
Nitrate, WT/DS493/AB/R and Add.1, adopted 30 September 2019, DSR 2019:X,
p. 5227
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916,
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X,
p. 4793
US – Carbon Steel Panel Report, United States – Countervailing Duties on Certain Corrosion-
Resistant Carbon Steel Flat Products from Germany, WT/DS213/R and Corr.1,
adopted 19 December 2002, as modified by Appellate Body Report
WT/DS213/AB/R, DSR 2002:IX, p. 3833
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R
and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling
(COOL) Requirements, WT/DS384/AB/R / WT/DS386/AB/R, adopted
23 July 2012, DSR 2012:V, p. 2449

Short Title Full Case Title and Citation
US – COOL (Article 21.5 –
Canada and Mexico)
Appellate Body Reports, United States – Certain Country of Origin Labelling
(COOL) Requirements – Recourse to Article 21.5 of the DSU by Canada and
Mexico, WT/DS384/AB/RW / WT/DS386/AB/RW, adopted 29 May 2015,
DSR 2015:IV, p. 1725
US – Customs Bond
Directive
Panel Report, United States – Customs Bond Directive for Merchandise Subject
to Anti-Dumping/Countervailing Duties, WT/DS345/R, adopted 1 August 2008,
as modified by Appellate Body Report WT/DS343/AB/R / WT/DS345/AB/R,
DSR 2008:VIII, p. 2925
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and
Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3
US – Large Civil Aircraft
(2nd complaint)
(Article 21.5 – EU)
Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft
(Second Complaint) – Recourse to Article 21.5 of the DSU by the
European Union, WT/DS353/RW and Add.1, adopted 11 April 2019, as modified
by Appellate Body Report WT/DS353/AB/RW, DSR 2019:V, p. 2171
US – Line Pipe Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Circular Welded Carbon Quality Line Pipe from Korea,
WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, p. 1403
US – Offset Act (Byrd
Amendment)
Appellate Body Report, United States – Continued Dumping and Subsidy Offset
Act of 2000, WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003,
DSR 2003:I, p. 375
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry
from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909
US – Ripe Olives from Spain Panel Report, United States – Anti-Dumping and Countervailing Duties on Ripe
Olives from Spain, WT/DS577/R and Add.1, adopted 20 December 2021
US – Section 301 Trade Act Panel Report, United States – Sections 301-310 of the Trade Act of 1974,
WT/DS152/R, adopted 27 January 2000, DSR 2000:II, p. 815
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp
and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998,
DSR 1998:VII, p. 2755
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty Determination
with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R,
adopted 17 February 2004, DSR 2004:II, p. 571
US – Stainless Steel
(Mexico)
Appellate Body Report, United States – Final Anti-Dumping Measures on
Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008,
DSR 2008:II, p. 513
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII,
p. 3117
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton,
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Washing Machines Panel Report, United States – Anti-Dumping and Countervailing Measures on
Large Residential Washers from Korea, WT/DS464/R and Add.1, adopted
26 September 2016, as modified by Appellate Body Report WT/DS464/AB/R,
DSR 2016:V, p. 2505
US – Zeroing (EC)
(Article 21.5 – EC)
Appellate Body Report, United States – Laws, Regulations and Methodology for
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU
by the European Communities, WT/DS294/AB/RW and Corr.1, adopted
11 June 2009, DSR 2009:VII, p. 2911
US – Zeroing (Japan)
(Article 21.5 – Japan)
Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan,
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441

EXHIBITS REFERRED TO IN THIS REPORT
Panel Exhibit Short title (if
applicable) Title
CHN-1 and
USA-1
Section 232 Trade Expansion Act, Public Law No. 87–794, 76 Stat. 877 (1962),
United States Code, Title II, Section 232
CHN-4 and
USA-7
Steel Report US Department of Commerce, Bureau of Industry and Security, Office of
Technology Evaluation, The Effect of Imports of Steel on the National
Security: An Investigation Conducted under Section 232 of the Trade
Expansion Act of 1962, as Amended (11 January 2018)
CHN-5 and
USA-8
Aluminium
Report
US Department of Commerce, Bureau of Industry and Security, Office of
Technology Evaluation, The Effect of Imports of Aluminum on the National
Security, An Investigation Conducted under Section 232 of the Trade
Expansion Act of 1962, as Amended (17 January 2018)
CHN-6 and
USA-10
Presidential
Proclamation
9704
Proclamation 9704 of 8 March 2018, Adjusting Imports of Aluminum Into
the United States, United States Federal Register, Vol. 83, No. 51
(15 March 2018), p. 11619
CHN-7 and
USA-9
Presidential
Proclamation
9705
Proclamation 9705 of 8 March 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 51
(15 March 2018), p. 11625
CHN-8 and
USA-12
Presidential
Proclamation
9710
Proclamation 9710 of 22 March 2018, Adjusting Imports of Aluminum Into
the United States, United States Federal Register, Vol. 83, No. 60
(28 March 2018), p. 13355
CHN-9 and
USA-11
Presidential
Proclamation
9711
Proclamation 9711 of 22 March 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 60
(28 March 2018), p. 13361
CHN-10 and
USA-14
Presidential
Proclamation
9739
Proclamation 9739 of 30 April 2018, Adjusting Imports of Aluminum Into
the United States, United States Federal Register, Vol. 83, No. 88
(7 May 2018), p. 20677
CHN-11 and
USA-13
Presidential
Proclamation
9740
Proclamation 9740 of 30 April 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 88
(7 May 2018), p. 20683
CHN-12 and
USA-16
Presidential
Proclamation
9758
Proclamation 9758 of 31 May 2018, Adjusting Imports of Aluminum Into
the United States, United States Federal Register, Vol. 83, No. 108
(5 June 2018), p. 25849
CHN-13 and
USA-15
Presidential
Proclamation
9759
Proclamation 9759 of 31 May 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 108
(5 June 2018), p. 25857
CHN-15 and
USA-19
Presidential
Proclamation
9776
Proclamation 9776 of 29 August 2018, Adjusting Imports of Aluminum
Into the United States, United States Federal Register, Vol. 83, No. 171
(4 September 2018), p. 45019
CHN-16 and
USA-18
Presidential
Proclamation
9777
Proclamation 9777 of 29 August 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 171
(4 September 2018), p. 45025
CHN-17 and
USA-20
March Interim
Final Rule
Requirements for Submissions Requesting Exclusions From the Remedies
Instituted in Presidential Proclamations Adjusting Imports of Steel Into the
United States and Adjusting Imports of Aluminum Into the United States;
and the Filing of Objections to Submitted Exclusion Requests for Steel and
Aluminum, Interim Final Rule, United States Federal Register, Vol. 83,
No. 53 (19 March 2018), p. 12106
CHN-18 and
USA-21
September
Interim Final
Rule
Submissions of Exclusion Requests and Objections to Submitted Requests
for Steel and Aluminum, Interim Final Rule, United States Federal
Register, Vol. 83, No. 176 (11 September 2018), p. 46026
CHN-40 and
USA-225
Presidential
Proclamation
9980
Proclamation 9980 of 24 January 2020, Adjusting Imports of Derivative
Aluminum Articles and Derivative Steel Articles Into the United States,
United States Federal Register, Vol. 85, No. 19 (29 January 2020),
p. 5281
CHN-14 Presidential
Proclamation
9772
Proclamation 9772 of 10 August 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 158
(15 August 2018), p. 40429
CHN-23 Congressional Research Service, Section 232 Investigations: Overview and
Issues for Congress (2 April 2019)
CHN-36 Harmonized Tariff Schedule of the United States (2018) Revision 4
CHN-39 United States Schedule of Concessions
CHN-47 Harmonized Tariff Schedule of the United States (2020) Revision 5
CHN-48 United States Schedule of Concessions pertaining to duties on derivative
articles
USA-2 Section 232
regulations
United States Code of Federal Regulations, Title 15, Part 705

Panel Exhibit Short title (if
applicable) Title
USA-22 The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.)
(Clarendon Press, 1993)
USA-23 Draft Articles on the Law of Treaties with commentaries, Yearbook of the
International Law Commission, 1966, Vol. II
USA-80 Council for Trade in Goods, Minutes of the Meeting held on
10 November 2017, G/C/M/130
USA-81 Council for Trade in Goods, Minutes of the Meeting held on 23 and
26 March 2018, G/C/M/131
USA-82 Committee on Safeguards, Communication from the United States,

USA-83 Statement dated 8 May 2018 of the Deputy US Trade Representative and
US Permanent Representative to the WTO, WTO General Council
USA-84 Statements dated 29 October 2018, 21 November 2018, and
4 December 2018 of the United States, WTO Dispute Settlement Body
USA-85 Committee on Market Access, Notification Pursuant to the Decision on
Notification Procedures for Quantitative Restrictions (G/L/59/Rev.1),

USA-86 The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.)
(Clarendon Press, 1993)
USA-93 S. Greenbaum, English Grammar (Oxford University Press, 1996)
USA-94 R. Flesch and A.H. Lass, The Classic Guide to Better Writing
(HarperPerennial, 1996)
USA-95 Merriam-Webster's Guide to Punctuation and Style (Merriam-Webster,
Incorporated, 1995)
USA-96 S. Benedict (ed.), Harper's English Grammar (Harper & Row, 1966)
USA-176 Merriam-Webster's Guide to Punctuation and Style (Merriam-Webster,
Incorporated, 1995)
USA-222 The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.)
(Clarendon Press, 1993)
USA-226 W. Strunk Jr. and E.B. White, The Elements of Style, 4th edn (Allyn and
Bacon, 1999)
USA-239 G20, Global Forum on Steel Excess Capacity Report (30 November 2017)
USA-240 Remarks dated 18 April 2016 of C. Malmström, "Way ahead for the global
steel industry", OECD High-Level Symposium on Steel
USA-254 Statement of the Chair of the OECD Ministerial Council Meeting (2018)
USA-255 Charlevoix G7 Summit Communiqué (9 June 2018)

1 INTRODUCTION
This dispute concerns additional duties and related measures imposed by the United States on
steel and aluminium products under Section 232 of the Trade Expansion Act of 1962, as amended.
China challenges the consistency of these measures with the United States' obligations under the
General Agreement on Tariffs and Trade 1994 (GATT 1994) and the Agreement on Safeguards.
1.1 Complaint by China
On 5 April 2018, China requested consultations with the United States pursuant to Article 4 of
the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) ,
Article XXII of the GATT 1994, and Article 14 of the Agreement on Safeguards with respect to the
measures and claims set out below.1
Consultations were held on 19 July 2018 between China and the United States. These
consultations failed to resolve the dispute.2
1.2 Panel establishment and composition
On 18 October 2018, China requested the establishment of a panel pursuant to Articles 4 and 6
of the DSU , Article XXIII of the GATT 1994, and Article 14 of the Agreement on Safeguards with
standard terms of reference. 3 At its meeting on 21 November 2018, the Dispute Settlement Body
(DSB) established a panel pursuant to China's request in document WT/DS544/8, in accordance with
Article 6 of the DSU.4
The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by China in document
WT/DS544/8 and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.5
On 7 January 2019, China requested the Director-General to determine the composition of the
panel, pursuant to Article 8.7 of the DSU . On 25 January 2019, the Director -General accordingly
composed the Panel as follows:
Chairperson: Mr Elbio Rosselli
Members: Mr Esteban B. Conejos, Jr
 Mr Rodrigo Valenzuela
The Kingdom of Bahrain; Brazil; Canada; Colombia; Egypt; the European Union; Guatemala;
Hong Kong, China; Iceland; India; Indonesia; Japan; Kazakhstan; Malaysia; Mexico; New Zealand;
Norway; Qatar; the Russian Federation; the Kingdom of Saudi Arabia; Singapore; South Africa;
Switzerland; Chinese Taipei; Thailand; Türkiye6; Ukraine; the United Arab Emirates 7; and the
Bolivarian Republic of Venezuela notified their interest in participating in the Panel proceedings as
third parties.

1 See Request for consultations by China, WT/DS544/1.
2 See Request for the establishment of a panel by China, WT/DS544/8 (China's panel request).
3 See China's panel request.
4 See Minutes of the DSB meeting held on 21 November 2018, WT/DSB/M/421, para. 6.5.
5 See Note by the Secretariat, Constitution of the Panel established at the request of China,

6 Member formerly known as Turkey.
7 On 19 July 2019, the United Arab Emirates notified the DSB and the Panel of its interest to participate
as a third party. (See WT/DS544/9/Rev.1).

1.3 Panel proceedings
General
The Panel held an organizational meeting with the parties on 12 March 2019.
After consultation with the parties, the Panel adopted its Working Procedures8 and Timetable9
on 5 April 2019.
The Panel held a first substantive meeting with the parties on 29-30 October 2019.10 A session
with the third parties took place on 18 November 2019. The Panel held a second substantive meeting
with the parties on 11 and 25 January 2021. On 15 July 2021, the Panel issued the descriptive part
of its Report to the parties. The Panel issued its Interim Report to the parties on 29 June 2022. The
Panel issued its Final Report to the parties on 16 November 2022.
Request for the substantive meetings of the Panel to be open to the public
On 5 March 2019, the Panel received a communication from the United States inquiring
whether China was willing to open the substantive meetings in the dispute to public observation and
make its submissions to the Panel available to the public.11 In the Panel's organizational meeting
with the parties, China indicated its opposition to disclosing its statements or responses to questions
to the public.12
The Panel transmitted its Working Procedures to the parties on 5 April 2019, which provided
that the Panel "shall meet in closed session".13
Request for enhanced third-party rights
On 7 June 2019, the Panel received a communication from Türkiye requesting enhanced
third-party rights (a) to receive copies of all the parties' written sub missions, oral statements,
rebuttals and answers to questions from the Panel and each other, through all stages of the

8 The Panel's Working Procedures were revised on 19 July 2019 and 20 February 2020. See the Panel's
Working Procedures, adopted on 5 April 2019, as revised on 19 July 2019 and 20 February 2020, in Annex A-1.
9 The Timetable for the Panel proceedings was revised on 19 July 2019, 13 December 2019, and
20 February 2020. The Panel subsequently communicated with the parties directly regarding additional dates
and deadlines in the Panel proceedings.
10 On 14 October 2019, the Panel informed the parties that the Chairperson of the Panel would not be
able to travel to Geneva for the first substantive meeting due to an accident. In response to the Panel's
invitation to provide views on the conduct of the meeting, the United States expressed concern that
participation by videoconference could make the meeting less effective and queried whether the Chairperson
would be able to participate in person with a modest delay in the timetable. After consulting the parties, the
Panel decided on 22 October 2019 to proceed with the participation of the Chairperson through
videoconferencing. In its decision, the Panel noted that the prompt settlement of disputes is a key principle
under Article 3 of the DSU and, under Article 12.2 of the DSU, panel procedures should provide sufficient
flexibility so as to ensure high-quality panel reports, while not unduly delaying the panel process. The Panel
also informed the parties that several actions had been taken in order to guarantee an optimal quality of
communication, including setting up multiple channels of communication between Geneva and Montevideo to
maintain connectivity.
11 United States' communication dated 5 March 2019.
12 During the Panel's organizational meeting with the parties, the United States alternatively requested
the Panel to partially open its substantive meetings to the public given the complainants' views in the other
disputes in which the same three persons were appointed as panelists (See section 1.3.4 below). The
United States argued in that context that providing for a partially open hearing would serve to facilitate the
United States' right under Article 18.2 of the DSU to disclose statements of its own position. In its
communication to the parties dated 5 April 2019, the Panel observed that nothing in the DSU provides that a
party's right to disclose statements of its own positions to the public must be exercised through the holding of
fully or partly open hearings. The Panel noted that there are other ways in which Members can make
statements of their own position public and that by declining a party's request to hold partially open hearings,
the Panel would not be depriving a Member of its rights under Article 18.2 or under any other provisions of the
DSU. Having considered the disagreement between the parties on the United States' proposal, as well as the
parties' views on the scope of the obligation to protect confidential information in the context of a partially
open hearing, the Panel exercised its discretion under Article 12.1 of the DSU to deny the United States'
request for partially open meetings.
13 Working Procedures of the Panel, para. 10.

proceedings; (b) to be present for the entirety of all substantive meetings of the Panel with the
parties; and (c) to review the draft su mmary of their own arguments in the descriptive part of the
Panel Report.14 On 17 June 2019 and 26 June 2019, the Panel invited the parties to comment on
this request as well as other similar requests received from the European Union15, Norway 16,
Switzerland17, the Russian Federation18, and Hong Kong, China. 19 In response, the United States
opposed the requests for enhanced rights to third parties20, whereas China supported the requests.21
Having consulted the parties on this matter and considerin g their due process interests, the
Panel informed the parties and third parties on 19 July 2019 that it had decided to grant certain
enhanced third-party rights to all third parties. The Panel implemented this decision in paragraph
30(e) of the Revised Working Procedures of 19 July 2019, granting third parties access to the parties'
submissions up to and including their responses to the questions posed by the Panel following the
first substantive meeting, as well as final versions of the oral statements made by the parties during
the first substantive meeting. The Panel stated that it would address the requests for enhanced
third-party rights in respect of further stages of the proceedings in due course.
After consultation with the parties, the Panel also gr anted enhanced third -party rights in
respect of further stages of the proceedings. On 20 February 2020, the Panel amended its Working
Procedures to provide third parties access to the parties' second written submissions, final versions
of oral statements made by the parties during the second substantive meeting, their responses to
the Panel's questions after the second substantive meeting, and comments on those responses.
In the interest of advancing the proceedings during the disruptions associated with t he
COVID-19 pandemic22 and pursuant to paragraph 9 of the Panel's Working Procedures, the Panel
sent additional questions to the parties on 26 August 2020. Based on consultations with the parties,
the Panel decided on 8 September 2020 and 21 September 2020 that the parties' responses to the
Panel's additional questions and comments on those responses should be made available to third
parties.
Due to the impact of the COVID-19 pandemic on the second substantive meeting23, the Panel
decided, on 10 November 2020, to modify its decision of 20 February 2020 so that third parties
would not receive further access to any statements, submissions, or exchanges from the parties,
including statements made by the parties during the second substa ntive meeting, their responses
to the Panel's questions after the second substantive meeting, or comments on those responses.
Relationship with the other disputes where the same three persons act as panelists
At the organizational meeting and at various p oints in the proceedings, the parties provided
views regarding the relationship between this dispute and the other cases where the same three
persons act as panelists.24

14 Türkiye's communication dated 7 June 2019, para. 11.
15 European Union's communication dated 7 June 2019, para. 11.
16 Norway's communication dated 11 June 2019, para. 3.
17 Switzerland's communication dated 11 June 2019, para. 3.
18 Russian Federation's communication dated 14 June 2019, p. 3.
19 Hong Kong, China's communication dated 25 June 2019, p. 1.
20 United States' communications dated 24 June 2019, para. 2; United States' communication dated
1 July 2019, para. 2.
21 China's communication dated 24 June 2019, para. 2; China's communication dated 1 July 2019,
paras. 12-13.
22 See section 1.3.5.2 below.
23 See section 1.3.5.4 below.
24 The other disputes where the same three persons are acting as panelists include DS547 (India),
DS552 (Norway), DS554 (the Russian Federation), DS556 (Switzerland), and DS564 (Türkiye). Mutually
agreed solutions were notified in DS550 (Canada) and DS551 (Mexico), where the same three persons were
appointed as panelists. See United States – Certain Measures on Steel and Aluminium Products (Canada),
Notification of a Mutually Agreed Solution, WT/DS550/13, 27 May 2019 and United States – Certain Measures
on Steel and Aluminium Products (Mexico), Notification of a Mutually Agreed Solution, WT/DS551/13,
3 June 2019. On 17 January 2022, the United States and the European Union jointly notified the DSB that they
were terminating the dispute in DS548 (European Union), where the same three persons were appointed as
panelists. (WT/DS548/20). On 20 January 2022, that panel notified the DSB that it was in receipt of a

China considered that these complaints relate to the same matter and Article 9.3 of the DSU
was therefore appli cable, noting that this was recognized in the Director -General's decision to
appoint the same panelists to serve on all these panels. Accordingly, China argued that these
proceedings required harmonized timetables and consolidated hearings, which could significantly
reduce the risk of unnecessary repetition and achieve important efficiencies.25 For China, the notion
of a "harmoni zed" timetable in Article 9.3 of the DSU implies "harmoni zed", or consolidated,
substantive meetings. 26 China argued that , in previous practice , single panels were established
under Article 9.1 of the DSU despite the absence of a complete overlap of the claims raised and that
"[t]his logic applies a fortiori under Article 9.3 of the DSU."27
The United States considered that a single panel had not been established in these disputes
pursuant to Article 9.1 of the DSU, but rather, nine28 separate panels were established by the DSB
to consider distinct matters. For the United States, the matters are distinct because the claims and
measures identified by each complainant are different from the other complainants. For this reason,
the United States submitted that Article 9.3 of the DSU is not applicable and, even if it were, it would
only be relevant to the composition of the various panels and the timetables. 29 In the context of
Article 9.3 of the DSU, the United States argued that t o "harmonize" the timetables in these
proceedings would mean to make them consistent or compatible and that harmonization does not
suggest, much less require, that the Panel collapse the proceedings into a single, identical process.
For the United States, the disparate sets of claims and measures identified by the complainants are
important to considerations of both efficiency and procedural fairness.30
The Panel notes that, at its meeting on 21 November 2018, the DSB established a panel
pursuant to the request from China in document WT/DS544/8, in accordance with Article 6 of the
DSU.31 While the same three persons that act as panelists in this dispute were also appointed as
panelists in other related cases 32, these proceedings are not substantively identical in all respects,
for instance, in terms of the precise measures and claims at i ssue. The Panel was also mindful of
the logistical complexities of coordinating multiple formally distinct disputes and, before adopting its
Timetable and Working Procedures, consulted the parties on multiple possible alternatives for the
conduct and configuration of the proceedings.33
The Panel, nonetheless, made arrangements at each stage of the proceedings to maintain
harmonized timetables to the greatest extent possible in both the deadlines for written submissions
and the dates for meetings across all disputes in which the same three persons act as panelists. In
doing so, the Panel endeavoured to balance the efficient conduct of proceedings with the due process
rights of the parties, taking into account the agreement of the parties, or lack thereof, on the
different proposals on how to organize the proceedings. As elaborated in the next section, the
harmonization of timetables was, in some instances, affected by the divergent views of the
complainants across the different disputes.34

communication from the European Union notifying the withdrawal of its complaint, and accordingly, had ceased
all work in those proceedings. (WT/DS548/21).
25 China's communication dated 22 February 2019.
26 China's communication dated 1 March 2019.
27 China's communication dated 1 March 2019.
28 The Panel recalls that the disputes in DS548 (European Union), DS550 (Canada) and DS551 (Mexico)
were active at the time of the Panel's organizational meeting and related consultations with the parties.
29 United States' communication dated 22 February 2019.
30 United States' communication dated 1 March 2019.
31 See Note by the Secretariat, Constitution of the Panel established at the request of China,

32 DS547 (India), DS552 (Norway), DS554 (the Russian Federation), DS556 (Switzerland), and DS564
(Türkiye).
33 Panel communication to the parties dated 7 March 2019. During the Panel's organizational meeting
and related consultations with the parties, the Panel specifically sought the parties' views on the optimal
scheduling and configuration of the substantive meetings in the disputes where the same three persons were
appointed as panelists, particularly addressing three possible configurations for the substantive meetings: (a)
combined substantive meetings with the parties in this dispute and the other eight disputes; (b) a "two-stage"
approach proposed by the United States with a first stage devoted solely to the United States' arguments
under Article XXI of the GATT 1994; and (c) separate meetings for each of the disputes in which the same
panelists had been appointed.
34 See section 1.3.5.4 below.

Impact of the COVID-19 pandemic on the Panel proceedings
1.3.5.1 Filing of written submissions
On 17 March 2020, in response to the COVID -19 outbreak, the Panel suspended the
requirement to deliver paper copies of a document or submission to the other parties or the DS
Registry unti l further notice. The Panel decided that receipt of the electronic version would be
deemed to be full service for the purposes of the Working Procedures. After briefly reverting to
service of hard copies of documents on 22 July 2020, the Panel informed the parties that as of
28 October 2020, e-filing would be deemed full service again until further notice.35
1.3.5.2 Scheduling of the second substantive meeting of the Panel with the parties
According to the revised Timetable adopted on 20 February 2020 after consultation with the
parties36, the Panel's second meeting with the parties was scheduled for 23-24 July 2020.
On 27 May 2020, the Panel invited the parties to provide information on the travel restrictions
that might impact the overall likelihood of holding the second meeting in person in July 2020. In
addition, the Panel consulted the parties on possible alternative arrangements to meetings in person,
including (a) holding the second substantive meeting through virtual participation in July 2020; (b)
postponement of the meeting to a later date with a possibility for an exchange of written questions
and responses in the interim; (c) adoption of written procedures as a substitute for the second
substantive meeting; or (d) any other possible arrangement, should it not be possible to hold the
meeting in person in July 2020.
In response to the Panel's communication, both parties indicated their inability to travel to
Geneva for the second substantive meeting in July 2020. 37 China proposed an additional round of
written briefs and/or an additional round of written answers to questions from the Panel as an
alternative to meetings in person, arguing that the matter before the Panel was ripe for decision. 38
The United States disagreed with China's suggestion that a written exchange could serve as an
alternative to a second substantive meeting with contemporaneous oral exchange. 39 The
United States further opposed holding the meeting in a virtual format, citing consequent limitations
on interactions between the parties and the Panel, within the parties' respective delegations, among
the three panelists, and between the panelists and the Secretariat.40 On this basis, the United States
requested that the Panel reschedule the second substantive meeting for a later date. 41 After
reviewing the parties' comments, the Panel in its communication dated 12 June 2020 decided to
postpone the meeting, indicating that it tentatively intended to schedule the meeting between
10 September and 20 October 2020.
Through multiple communications sent to the parties on 22 July 2020, 31 July 2020,
26 August 2020, 21 September 2020, 13 October 2020, and 23 October 2020, the Panel regularly
consulted the parties on the feasibility of in -person meetings in 2020 and possible alternative
arrangements. Both parties identified numerous potential obstacles to holding in -person meetings
in 2020, including evolving travel and quarantine restrictions due to the pandemic. The United States

35 Panel communication to the parties dated 27 October 2020.
36 Following its first substantive meeting with the parties, the Panel consulted the parties on various
options for scheduling the second substantive meeting between 22 June-31 July 2020 or 14 September-
16 October 2020, as well as an expedited timetable under which the second substantive meeting with the
parties would be held in May 2020. While China favoured the earlier scheduling of the meeting, the
United States requested that the meeting be scheduled between 14 September 2020 and 16 October 2020,
citing conflicting summer holiday schedules, US federal holidays, and the need for sufficient time to adequately
prepare for the second substantive meeting. Based on these consultations, the Panel scheduled its second
meeting with the parties on 23 and 24 July 2020.
37 United States' communication dated 2 June 2020, paras. 2-3; China's communication dated
2 June 2020, p. 1.
38 China's communication dated 2 June 2020, pp. 1-2.
39 United States' communication dated 2 June 2020, para. 15; United States' communication dated
5 June 2020, para. 1.
40 United States' communication dated 2 June 2020, paras. 9-10.
41 United States' communication dated 2 June 2020, para. 11; United States' communication dated
5 June 2020, para. 6.

maintained its preference for in-person meetings 42, whereas China suggested that in-person
meetings could be replaced with either written exchanges or virtual meetings.43
After it became apparent that no in -person meeting would be possible in the foreseeable
future due to the COVID -19 pandemic, the Panel issued a decision on 10 November 2020 on the
way forward in the proceedings. The Panel began by noting the various restrictions imposed on
gatherings and international travel in relation to the COVID-19 pandemic, including those instituted
by Switzerland in November 2020, and that under these circumstances, holding the second
substantive meeting in the manner originally envisaged in the Timetable was not feasible. The Panel
indicated its consistent efforts over the course of the dispute to m aintain a balance between the
efficient conduct of proceedings, the parties' due process rights, and the particular preferences
expressed by each party, including the complainant's request to keep the timetables harmonized
across the disputes in which the same three persons act as panelists. Based on the parties' comments
and in the interest of continuing to advance the Panel's work, the Panel decided to proceed by holding
the second substantive meeting virtually.
1.3.5.3 Use of a virtual meeting platform for the second substantive meeting of the Panel
with the parties
In its decision of 10 November 2020, the Panel noted its intention to conduct the second
meeting through the Cisco Webex platform and circulated draft additional working procedures
requiring, among o ther things, that all remote participants follow the security rules contained in
these additional working procedures as well as any additional security guidance that may be provided
by the host. The Panel also proposed to arrange advance testing sessions with the parties to ensure
their remote participation and invited comments from the parties on the draft additional working
procedures.
In its comments on the draft additional working procedures, the United States requested that
the Panel (a) provide all questions to the parties at least two weeks in advance; (b) refrain from
asking additional or follow -up questions during the session; and (c) prohibit parties from
commenting on each other's responses to the Panel' s questions during the session. The
United States reasoned that health concerns prevented its delegation from gathering in person to
coordinate responses. The United States further cited technical considerations – "including the
inability of USTR employees to participate in a meeting via Webex from telework locations" – in
support of its request. Finally, the United States requested that the Panel enable the Webex dial-in
feature to allow individuals from its delegation to connect by phone and reflect this adjustment in
the proposed additional working procedures.44
 Taking note of the parties' comments, the Panel declined the United States' request to (a)
refrain from asking additional or follow -up questions during the session, and (b) prohibit parties
from commenting on each other's responses to the Panel's questions during the session. The Panel
observed that it had decided to divide the second substantive meeting into two four -hour sessions
with two weeks between the sessions. The Panel found that this arrangement would allow each party
the time to confer within its delegation and respond to possible questions from the Panel or the other
party throughout the course of the meeting. The Panel also noted that the parties would have the
opportunity to provide further comments in writing in response to questions after the meeting.45
In the Additional Working Procedures for virtual meetings, the Panel indicated that the
meeting would be held in closed session, with remote access limited to registered participants .
Accordingly, for security and confidentiality reasons, the Panel decided not to enable the dial -in
feature on Webex.

42 United States' communication dated 28 July 2020, para. 5; United States' communication dated
9 September 2020, para. 5; United States' communication dated 20 October 2020, para. 1; and United States'
communication dated 4 November 2020, para. 8.
43 China's communication dated 28 July 2020, p. 1; China's communication dated 9 September 2020;
China's communication dated 20 October 2020, paras. 4-5; and China's communication dated
28 October 2020.
44 United States' communication dated 16 November 2020.
45 Panel communication to the parties dated 1 December 2020.

1.3.5.4 Impact on coordination with the other disputes where the same three persons act
as panelists
As discussed in section 1.3.4 of this Report, the Panel made several arrangements at each
stage of the proceedings to maintain harmonized timetables in all disputes where the same three
persons are acting as panelists. However, in its communications of 13 October 2020 and 23 October
2020, the Panel noted that the complainants across these disputes presented diverging views on the
way forward for the second substantive meeting in light of the COVID -19 pandemic. The Panel
indicated to the parties that this divergence was difficult to reconcile with China's initial request to
maintain harmonized timetables in all disputes. Accordingly, the Panel sought the parties' views on
the feasibility of maintaining such harm onization going forward. The Panel also invited the parties'
comments on the implications of the differences among the complainants in these disputes on
enhanced third-party rights, and in particular on access to written submissions and responses to
Panel questions, if the Panel determined that it was not viable to maintain harmonized timetables.
China argued that the requirement of harmonization of timetables under Article 9.3 of the
DSU applies to the present proceedings. China further argued that to resolve these disputes in a
prompt and harmonized fashion, the Panel should exercise its authority under Article 12.1 of the
DSU to devise a common solution for the second substantive meetin gs in all disputes where the
same three persons are acting as panelists, even if certain parties preferred a different solution .
China observed that a common solution to the organization of the second substantive meeting would
facilitate the exercise of the enhanced third-party rights granted by the Panel.46
The United States objected to proceeding differently across the disputes in which the same
three persons serve as panelists, arguing that doing so would provide a strategic benefit to the
complainants to the disadvantage of the United States.47 Moreover, the United States observed that
should the Panel move forward with different formats and different timetables across these disputes,
the United States would no longer agree to open any of the proceedings to public viewing. 48 The
United States reasoned that complainants participating in later meetings would have an opportunity
to view the earlier open meetings and adjust their statements and arguments accordingly. 49 For
similar reasons, the United States also requested that the Panel rescind its decision on enhanced
third-party rights in the event it acceded to the complainants' diverging requests, arguing that such
enhanced rights would serve to unfairly advantage those third parties that are also parties in their
own disputes.50
The Panel provided its decision on the second substantive meeting to the parties on
10 November 2020, where it noted that Article 9.3 of the DSU provides for harmonizing timetables
to the "greatest extent possible". The Panel obse rved that the compatibility of positions taken by
parties across disputes, or lack thereof, was a significant factor in assessing the possibility of
harmonizing timetables. In particular, the Panel considered that the harmonization of timetables
would not compel the adoption of alternative meeting procedures by virtual means even in those
disputes where both the complainant and the respondent had expressed a preference to wait until
in-person meetings were possible. In this light, the Panel concluded that i f the divergent positions
of the parties across the disputes resulted in certain meetings being held at a later date, it would no
longer be possible to harmonize the timetables across the disputes. The Panel further noted that if
the timetables across the disputes were not harmonized, the rights of third parties for subsequent
stages in the disputes would be as provided for in Article 10 of the DSU, and the Panel would not
grant third parties further access to any statements, submissions, or exchanges from the parties in
each dispute.
Based on the foregoing, the Panel scheduled its second substantive meeting with the parties
in this dispute for 11 and 25 January 2021. Rights of third parties for subsequent stages in the
disputes were limited to those provided in Article 10 of the DSU.

46 China's communication dated 20 October 2020.
47 United States' communication dated 20 October 2020, para. 2.
48 United States' communication dated 4 November 2020, para. 6.
49 United States' communication dated 20 October 2020, para. 5.
50 United States' communication dated 4 November 2020, para. 6.

2 FACTUAL ASPECTS
2.1 Section 232 and the United States Department of Commerce reports on steel and
aluminium
This section provides the legislative and regulatory background of the measures at issue in this
dispute and, in particular, of:
a. Section 232 of the Trade Expansion Act of 1962, as amended ( United States Code, Title
19, Section 1862) (Section 232)51 and its implementing regulation, United States Code of
Federal Regulations, Title 15, Part 70552;
b. "The Effect of Imports of Steel on the National Security: An Investigation Conducted Under
Section 232 of the Trade Expansion Act of 1962, As Amended", United States Department
of Commerce Report, 11 January 2018 (Steel Report)53; and
c. "The Effects of Imports of Aluminum on the National Security: An Investigation Conducted
Under Section 232 of the Trade Expansion Act of 1962, As Amended", United States
Department of Commerce Report, 17 January 2018 (Aluminium Report).54
Section 232
Pursuant to Section 232, upon request of the head of any department or agency, upon
application of an interested party, or upon his own motion, the United States (US) Secretary of
Commerce shall immediately initiate an appropriate investigation to determine the effects on the
national security of imports of the article which is the subject of such request, application, or
motion.55 The US Secretary of Commerce shall also immediately provide notice to the US Secretary
of Defense of any such investigation, and shall consult with the Secretary of Defense regarding the
methodological and policy questions raised in such investigation.56
Section 232 further provides that no later than 270 days after an investigation is initiated with
respect to any article, the US Secretary of Commer ce shall submit to the US President a report on
the findings of the investigation with respect to the effect of the importation of such article in such
quantities or under such circumstances upon the national security . Section 232 directs the US
Secretary of Commerce to make recommendations for action or inaction based on such findings. If
the US Secretary of Commerce finds that such article is being imported into the United States in
such quantities or under such circumstances as to threaten to impair the national security, the
Secretary shall so advise the US President in such report.57
Within 90 days of receiving such report, the US President shall: (a) determine whether the
President concurs with the finding of the Secretary; and (b) if the President concurs, determine the
nature and duration of the action that, in the judgment of the President, must be taken to adjust
imports of the article and its derivatives so that such imports will not threaten to impair national
security.58 If the US President deter mines to take action to adjust imports of the article and its
derivatives, the US President shall implement such action within 15 days.59 Further, the action taken
by the US President may be the negotiation of an agreement which limits or restricts importa tion
into, or exportation to, the United States of the article that threatens to impair US national security,
or such other actions as the US President deems necessary to adjust the imports of the article so
that the imports will not threaten to impair US national security.60

51 Section 232, (Exhibit CHN-1 and USA-1).
52 Section 232 regulations, (Exhibit USA-2).
53 Steel Report, (Exhibit CHN-4 and USA-7).
54 Aluminium Report, (Exhibit CHN-5 and USA-8).
55 Section 232, (Exhibit CHN-1 and USA-1), § 1862(b)(1)(A).
56 Section 232, (Exhibit CHN-1 and USA-1), §§ 1862(b)(1)(B) and (b)(2)(A).
57 Section 232, (Exhibit CHN-1 and USA-1), § 1862(b)(3)(A).
58 Section 232, (Exhibit CHN-1 and USA-1), § 1862(c)(1)(A).
59 Section 232, (Exhibit CHN-1 and USA-1), § 1862(c)(1)(B).
60 Section 232, (Exhibit CHN-1 and USA-1), § 1862(c)(3)(A).

Section 232 also sets out factors that should be analysed when conducting an investigation to
determine the effects of imports of a product on the national security. In particular, it provides that
the US Secretary of Commerce and the US President shall, in light of the requirements of national
security and without excluding other relevant factors, give consideration to:
a. domestic production needed for projected national defence requirements;
b. the capacity of domestic industries to meet such requirements;
c. existing and anticipated availabilities of the human resources, products, raw materials,
and other supplies and services essential to the national defence;
d. the requirements of growth of such industries and such supplies and services including the
investment, exploration, and development necessary to assure such growth; and
e. the importation of goods in terms of their quantities, availabilities, character, and use as
those affect such industries and the capacity of the United States to meet national security
requirements.61
In addition to these factors, Section 232 provides that in the administration of this section, the
US Secretary of Commerce and the US President shall further recognize the close relation of the
economic welfare of the United States to its national security, and shall take into consideration:
a. the impact of foreign competition on the economic welfare of individual domestic
industries; and
b. any substantial unemployment, decrease in revenues of government, loss of skills or
investment, or other serious effects resulting from the displacement of any domestic
products by excessive imports.62
Additional regulations in the United States Code of Federal Regulations, Title 15, Part 705 set
out the procedures according to which the US Department of Commerce shall commence and
conduct its investigation to determine the effect on the national security of the imports of any article,
as well as issue the report and recommendation to the President of the United States for action or
inaction regarding an adjustment of the imports of the article(s) in question.63
The Steel Report
The Steel Report of 11 January 2018 summarizes the findings of an investigation conducted by
the US Department of Commerce pursuant to Section 232 into the effect of imports of steel mill
products on the national security of the United States.
2.1.2.1 Initiation and investigation process
On 19 April 2017, the US Secretary of Commerce initiated an investigation to determine the
effect of imported steel on national security under Section 232. The US Department of Commerce
notified the US Department of Defense of the investigation in a letter dated 19 April 2017.64 On
20 April 2017, the US President signed a Presidential Memorandum directing the US Secretary of
Commerce to proceed expeditio usly in conducting his investigation and submit a report on his
findings to the President. 65 On 21 April 2017, the US Department of Commerce published in the
Federal Register a notice about the initiation of the investigation. The notice also announced the
opening of the public comment period as well as a public hearing to be held on 24 May 2017.66 The

61 Section 232, (Exhibit CHN-1 and USA-1), § 1862(d).
62 Section 232, (Exhibit CHN-1 and USA-1), § 1862(d).
63 Section 232 regulations, (Exhibit USA-2), §§ 705.1-705.12.
64 Steel Report, (Exhibit CHN-4 and USA-7), p. 18.
65 Steel Report, (Exhibit CHN-4 and USA-7), p. 18.
66 Steel Report, (Exhibit CHN-4 and USA-7), p. 18.

US Department of Commerce held a public hearing to elicit further information concerning the
investigation in Washington, D.C., on 24 May 2017.67
In addition to the notification provided by its 19 April 2017 letter to the US Department of
Defense, the US Department of Commerce carried out consultations with the US Department of
Defense regarding methodological and policy questions that arose during the investi gation.
According to the Steel Report, discussions were held with the US Army Materiel Command, the
Defense Logistics Agency, the US Navy/Naval Air Systems Command, and the Under Secretary of
Defense for Acquisitions & Logistics, Manufacturing , and Industrial Base Policy. Discussions were
also held with "appropriate officers of the United States", including the US Department of State,
Department of the Treasury, Department of the Interior/US Geological Survey, the Department of
Homeland Security/US Customs and Border Protection, the International Trade Commission, and the
Office of the United States Trade Representative.68
2.1.2.2 Product scope
The Steel Report describes its product coverage as steel mill products which are defined at
the Harmonized System 6-digit level as: 720610 through 721650, 721699 through 730110, 730210,
730240 through 730290, and 730410 through 730690, including any subsequent revisions to these
HS codes.69 Generally, these products fall into five categories:
a. Carbon and Alloy Flat Products (Flat Products): Steel products produced by rolling semi -
finished steel through varying sets of rolls. This category includes sheets, strips, and
plates.70
b. Carbon and Alloy Long Products (Long Products): Steel products that fall outside the flat
products category. This category includes bars, rails, rods, and beams.71
c. Carbon and Alloy Pipe and Tube Products (Pipe and Tube Products): Either seamless or
welded pipe and tube products. Some of these products may include stainless as well as
alloys other than stainless.72
d. Carbon and Alloy Semi -finished Products (Semi -finished Products): The initial,
intermediate solid forms of molten steel, to be re -heated and furt her forged, rolled,
shaped, or otherwise worked into finished steel products. This category includes blooms,
billets, slabs, ingots, and steel for castings.73

67 Steel Report, (Exhibit CHN-4 and USA-7), p. 18.
68 Steel Report, (Exhibit CHN-4 and USA-7), pp. 19-20.
69 Steel Report, (Exhibit CHN-4 and USA-7), p. 21.
70 Flat products are covered under the following 6-digit HS codes: 720810, 720825, 720826, 720827,
720836, 720837, 720838, 720839, 720840, 720851, 720852, 720853, 720854, 720890, 720915, 720916,
720917, 720918, 720925, 720926, 720927, 720928, 720990, 721011, 721012, 721020, 721030, 721041,
721049, 721050, 721061, 721069, 721070, 721090, 721113, 721114, 721119, 721123, 721129, 721190,
721210, 721220, 721230, 721240, 721250, 721260, 722511, 722519, 722530, 722540, 722550, 722591,
722592, 722599, 722611, 722619, 722691, 722692, 722693, 722694, 722699. (Steel Report, (Exhibit CHN-4
and USA-7), p. 21).
71 Long products are covered under the following 6-digit HS codes: 721310, 721320, 721391, 721399,
721410, 721420, 721430, 721491, 721499, 721510, 721550,721590, 721610, 721621, 721622, 721631,
721632, 721633, 721640, 721650, 721699, 721710, 721720, 721730, 721790, 722520, 722620,722710,
722720, 722790, 722810, 722820, 722830, 722840, 722850, 722860, 722870, 722880, 722910,722920,
722990, 730110, 730210, 730240, 730290. (Steel Report, (Exhibit CHN-4 and USA-7), pp. 21-22).
72 Pipe and Tube products are covered under the following 6-digit HS codes: 730410, 730419, 730421,
730423, 730429, 730431, 730439, 730451, 730459, 730490, 730511, 730512, 730519, 730520, 730531,
730539, 730590, 730610, 730619, 730620, 730629, 730630, 730650, 730660, 730661, 730669, 730690.
(Steel Report, (Exhibit CHN-4 and USA-7), p. 22).
73 Semi-finished products are covered under the following 6-digit HS codes: 720610, 720690, 720711,
720712, 720719, 720720, 722410, 722490. (Steel Report, (Exhibit CHN-4 and USA-7), p. 22).

e. Stainless Products: Steel products, in flat -rolled, long, pipe and tube, and semi -finished
forms, containing at minimum 10.5% chromium and, by weight, 1.2% or less of carbon,
offering better corrosion resistance than other steel.74
2.1.2.3 Findings and recommendations by the US Secretary of Commerce
The Steel Report refers to the nonexclusive lists of factors in Section 232 and its implementing
regulations that the US Department of Commerce must consider in evaluating the effect of imports
on the national security.75 The Steel Report further refers to a determination by the US Department
of Commerce in 2001 t hat (a) national defence includes both defence of the United States directly
and its ability to project military capabilities globally, and (b) the term "national security" can be
interpreted more broadly to include the general security and welfare of cert ain industries, beyond
those necessary to satisfy national defence requirements that are critical to the minimum operations
of the economy and government.76
In the Steel Report, the US Secretary of Commerce determined that the displacement of
domestic steel by excessive imports and the consequent adverse impact of those quantities of steel
imports on the economic welfare of the domestic steel industry, along with the circumstance of
global excess capacity in steel, were "weakening our internal economy" and therefore "threaten to
impair" US national security as defined in Section 232.77 According to the Steel Report, the continued
rising levels of imports of foreign steel threaten to impair the national security by placing the US
steel industry at substantial risk of displacing the basic oxygen furnace and other steelmaking
capacity, and the related supply chain needed to produce steel for critical infrastructure and national
defence.78 The Steel Report refers to global excess steel capacity as a circumstance that contributes
to the "weakening of [the US] internal economy" that "threaten[s] to impair" US national security
as defined in Section 232.79
In arriving at this general conclusion, the Steel Report relied on four main overarching
findings, which in turn, comprise several intermediate findings:
a. Steel is important to US national security because 80: (i) steel is needed for national
defence requirements81; (ii) steel is required for US critical infrastructure82; (iii) domestic
steel production is essential for national security83; (iv) domestic steel production depends
on a healthy and competitive US industry 84; and (v) steel is consumed in critical
industries.85
b. Imports in such quantities as are presently found adversely impact the economic welfar e
of the US steel industry due to86: (i) continued increase in imports of steel products 87;
(ii) high import penetration 88; (iii) high import to export ratio 89; (iv) prevailing steel

74 Stainless steel products are covered under the following 6-digit HS codes: 721810, 721891, 721899,
721911, 721912, 721913, 721914, 721921, 721922, 721923, 721924, 721931, 721932, 721933, 721934,
721935, 721990, 722011, 722012, 722020, 722090, 722100, 722211, 722219, 722220, 722230, 722240,
722300, 730411, 730422, 730424, 730441, 730449, 730611, 730621, 730640. (Steel Report, (Exhibit CHN-4
and USA-7), p. 22).
75 Steel Report, (Exhibit CHN-4 and USA-7), p. 13.
76 Steel Report, (Exhibit CHN-4 and USA-7), p. 13 (referring to Department of Commerce, Bureau of
Export Administration: The Effect of Imports of Iron Ore and Semi-Finished Steel on the National Security,
October 2001). The Steel Report further clarifies that it uses the more recent 16 critical infrastructure sectors
identified in Presidential Policy Directive 21 instead of the 28 critical industry sectors used by the Bureau of
Export Administration in the 2001 Report. (Ibid. p. 14).
77 Steel Report, (Exhibit CHN-4 and USA-7), p. 55.
78 Steel Report, (Exhibit CHN-4 and USA-7), p. 55.
79 Steel Report, (Exhibit CHN-4 and USA-7), p. 55.
80 Steel Report, (Exhibit CHN-4 and USA-7), p. 23.
81 Steel Report, (Exhibit CHN-4 and USA-7), p. 23.
82 Steel Report, (Exhibit CHN-4 and USA-7), pp. 23-24.
83 Steel Report, (Exhibit CHN-4 and USA-7), pp. 24-25.
84 Steel Report, (Exhibit CHN-4 and USA-7), p. 25.
85 Steel Report, (Exhibit CHN-4 and USA-7), p. 25.
86 Steel Report, (Exhibit CHN-4 and USA-7), p. 27.
87 Steel Report, (Exhibit CHN-4 and USA-7), p. 27.
88 Steel Report, (Exhibit CHN-4 and USA-7), p. 29.
89 Steel Report, (Exhibit CHN-4 and USA-7), p. 30.

prices90; (v) steel mill closures91; (vi) declining employment trend since 199892; (vii) trade
actions such as anti -dumping and countervailing duties 93; (viii) loss of domestic
opportunities to bidders using imported steel 94; (ix) financial distress 95; and (x) limited
capital expenditures arising from falling revenue and reduced profits.96
c. Displacement of domestic steel by excessive quantities of imports has the serious effect
of weakening the US internal economy because 97: (i) domestic steel production capacity
is stagnant and concentrated 98; (ii) production is well below demand99; (iii) utilization
rates are well below economically viable levels 100; and (iv) declining steel production
facilities limits capacity available for a national emergency.101
d. Global excess steel capacity is a circumstance that contributes to the wea kening of the
domestic economy because 102: (i) free markets globally are adversely affected by
substantial chronic global excess steel production led by China103; and (ii) increasing global
excess steel capacity will further weaken the internal economy as US steel producers will
face increasing import competition.104
In the Steel Report, the US Secretary of Commerce recommends, due to the threat of steel
imports to US national security, that the US President take immediate action by adjusting the level
of imports through quotas or tariffs on steel imported into the United States, as well as direct
additional actions to keep the US steel industry financially viable and able to meet US national
security needs. The Steel Report states that the quota or tariff imposed should be sufficient, after
accounting for any exclusions, to enable the US steel producers to be able to operate at about 80%
or better of the industry's capacity utilization rate based on available capacity in 2017.105
In particular, the Steel Report recommends the following two alternative courses of action:
a. Global quota or tariff: The Steel Report recommends that this should be done by
(i) imposing a quota of 63% of the 2017 import level on all imported steel products,
applied on a country and steel product basis, or (ii) applying a 24% tariff on all imported
steel products, in addition to any anti-dumping or countervailing duty collections applicable
to any imported steel product.106
b. Tariff on a subset of countries: The Steel Report alternatively recommends applying a 53%
tariff on all imported steel products from Brazil, the Republic of Korea, the
Russian Federation, Türkiye, India, Viet Nam, China, Thailand, South Africa, Egypt,
Malaysia, and Costa Rica, in addition to any anti-dumping or countervailing duty collections
applicable to any steel products from these countries. All other countries would be limited
to 100% of their 2017 import level.107
The Steel Report further states that , in selecting an alternative, the US President could
determine that specific countries should be exempted from the proposed 63% quota or 24% tariff
by granting those specific countries 100% of their prior imports in 2017, based on an overriding
economic or security interest of the United States.108 The Steel Report also recommends an appeal

90 Steel Report, (Exhibit CHN-4 and USA-7), pp. 31-32.
91 Steel Report, (Exhibit CHN-4 and USA-7), p. 33.
92 Steel Report, (Exhibit CHN-4 and USA-7), p. 35.
93 Steel Report, (Exhibit CHN-4 and USA-7), p. 36.
94 Steel Report, (Exhibit CHN-4 and USA-7), p. 36.
95 Steel Report, (Exhibit CHN-4 and USA-7), p. 37.
96 Steel Report, (Exhibit CHN-4 and USA-7), p. 40.
97 Steel Report, (Exhibit CHN-4 and USA-7), p. 41.
98 Steel Report, (Exhibit CHN-4 and USA-7), p. 41.
99 Steel Report, (Exhibit CHN-4 and USA-7), p. 46.
100 Steel Report, (Exhibit CHN-4 and USA-7), p. 47.
101 Steel Report, (Exhibit CHN-4 and USA-7), p. 49.
102 Steel Report, (Exhibit CHN-4 and USA-7), p. 51.
103 Steel Report, (Exhibit CHN-4 and USA-7), p. 51.
104 Steel Report, (Exhibit CHN-4 and USA-7), p. 53.
105 Steel Report, (Exhibit CHN-4 and USA-7), p. 58.
106 Steel Report, (Exhibit CHN-4 and USA-7), pp. 59-60.
107 Steel Report, (Exhibit CHN-4 and USA-7), p. 60.
108 Steel Report, (Exhibit CHN-4 and USA-7), p. 60.

process by which affected US parties could seek an exclusion from the tariff or quota imposed and
notes that the US Secretary of Commerce would grant such exclusions based on demonstrating (a)
lack of sufficient US production capacity of comparable products or (b) specific national security
based considerations.109
The Aluminium Report
The Aluminium Report of 17 January 2018 summarizes the findings of an investigation
conducted by the US Department of Commerce pursuant to Section 232 into the effect of imports of
aluminium products on the national security of the United States.
2.1.3.1 Initiation and investigation process
On 26 April 2017, the US Secretary of Commerce initiated an investigation to determine the
effect of imported alumin ium on national security under Section 232.110 The US Department of
Commerce notified the US Department of Defense of the investigation in a letter dated
26 April 2017.111 On 27 April 2017, the US President signed a Presidential Memorandum directing
the US Secretary of Commerce to proceed expeditiously in conducting his investigation and submit
a report on his findings to the President.112 On 3 May 2017, the US Department of Commerce invited
interested parties to submit written comments, opinions, data, information, or advice. 113 The US
Department of Commerce held a public hearing to elicit further information concerning this
investigation in Washington, D.C., on 22 June 2017.114
In addition to the notification to the US Department of Defense on 26 April 2017, the US
Department of Commerce consulted with the US Department of Defense regarding methodological
and policy questions that arose during the investigation and also consulted with other agencies of
the US Government with expertise and information regarding the aluminium industry, including the
US Geological Survey of the Department of the Interior and the US International Trade
Commission.115
2.1.3.2 Product scope
The Aluminium Report sets out its product scope in the following table:
Table 1: Harmonized Tariff Schedule for Aluminum Products116
Harmonized Tariff Schedule for Aluminum Products
HTS Code Description
7601 Unwrought aluminum
7604 Aluminum bars, rods and profiles
7605 Aluminum wire
7606 Aluminum plates, sheets, and strip, of a thickness exceeding 0.2 mm*
7607 Aluminum foil (whether or not printed, or backed with paper, paperboard, plastics or
similar backing materials) of a thickness (excluding any backing) not exceeding 0.2 mm
7608 Aluminum tubes and pipes
7609 Aluminum tube and pipe fittings
7616.99.51.60 Other articles of aluminum: castings
7616.99.51.70 Other articles of aluminum: forgings
*Note: This category includes can sheet for aluminum can packaging

109 Steel Report, (Exhibit CHN-4 and USA-7), p. 61.
110 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 18.
111 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 18.
112 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 18.
113 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 19.
114 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 19.
115 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 19.
116 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 20.

2.1.3.3 Findings and recommendations by the US Secretary of Commerce
The Aluminium Report refers to the nonexclusive lists of factors in Section 232 and its
implementing regulations that the US Secretary of Commerce must consider in evaluating the effect
of imports on national security.117 The Aluminium Report further refers to a determination by the US
Department of Commerce in 2001 that (a) national defen ce includes both defen ce of the
United States directly and its ability to project military capabilities globally, and (b) the term
"national security" can be interpreted more broadly to include the general security and welfare of
certain industries, beyond those necessary to satisfy national defence requirements that are critical
to the minimum operations of the economy and government.118
In the Aluminium Repor t, the US Secretary of Commerce determined that the present
quantities and circumstance of alumin ium imports were "weakening our internal economy" and
"threaten to impair the national security as defined in Section 232".119 According to the Aluminium
Report, the continued rise in levels of imports of foreign aluminium threatens to impair US national
security by placing the US alumin ium industry at substantial risk of losing the capacity to produce
aluminium and aluminium products needed to support critical infrastructure and national defence.120
The Aluminium Report refers to excess production and capacity in China as a major factor
contributing to the decline in US domestic aluminium production and loss of domestic production
capacity.121
In arriving at this general conclusion, the Aluminium Report relies on findings including:
a. Aluminium is essential to US national security because122: (i) aluminium is required for US
national defence123; and (ii) aluminium is required for US critical infrastructure.124
b. Domestic production of aluminium is essential to national security.125
c. Domestic aluminium production capacity is declining because126: (i) the United States is a
relatively high -cost producer 127; and (ii) aluminium smelters are permanently shutting
down.128
d. Domestic production is well below demand.129
e. US imports of alumin ium are increasing in aggregate 130 and in particular , imports of
(i) unwrought aluminium131; (ii) aluminium bars, rods and profiles 132; (iii) aluminium

117 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 12.
118 Aluminium Report, (Exhibit CHN-5 and USA-8), pp. 12-13 (referring to Department of Commerce,
Bureau of Export Administration: The Effect of Imports of Iron Ore and Semi-Finished Steel on the National
Security, October 2001). The Aluminium Report further clarifies that while it uses these interpretations of
"national defense" and "national security", it refers to the more recent 16 critical infrastructure sectors
identified in Presidential Policy Directive 21 instead of the 28 critical industry sectors used by the Bureau of
Export Administration in the 2001 Report. (Ibid. p. 13).
119 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 104.
120 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 104.
121 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 104.
122 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 23.
123 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 24.
124 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 36.
125 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 39.
126 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 40.
127 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 41.
128 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 48.
129 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 59.
130 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 63.
131 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 70.
132 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 71.

plate, sheet and strip133; (iv) aluminium foil134; (v) aluminium pipes and tubes135; and (vi)
aluminium castings and forgings.136
f. US aluminium exports are declining.137
g. The United States' import to export ratio for the aluminium product categories subject to
this investigation is high.138
h. Aluminium imports are impacting the welfare of the US alumin ium industry because:139
(i) employment in the aluminium industry is declining as several smelters were either
permanently shut down or temporarily idled 140; (ii) the financial status of the US
aluminium industry is poor141; (iii) research and development expenditures are falling142;
(iv) capital expenditures for the aluminium industry are increasing143; and (v) aluminium
prices have dropped sharply.144
In the Aluminium Report, the US Secretary of Commerce recommends, due to the threat of
aluminium imports to US national security, that the US President take immediate action by adjusting
the level of these imports. 145 The recommended adjustments would be imposed on imports of:
(i) unwrought aluminium (Harmonized Tariff Schedule (HTS) Code 7601); (ii) aluminium castings
and forgings (HTS Codes 7616.99.51.60 and 7616.99.51.70); (iii) aluminium plate, sheet, strip, and
foil (flat -rolled products) (HTS Codes 7606 and 7607); (iv) aluminium wire (HTS Code 7605);
(v) aluminium bars, rods and profiles (HTS Code 7604); (vi) aluminium tubes and pipes (HTS Code
7608); and (vii) aluminium tube and pipe fittings (HTS Code 7609) based on 2017 annualized
imports in those categories. The Aluminium Report states that the recommended quotas or tariffs
would be designed, even after any exemptions (if granted), t o enable US aluminium producers to
utilize an average of 80% of their production capacity.146
In particular, the Aluminium Report recommends the following two alternative courses of
action:
a. Global quota or tariff: The Aluminium Report recommends that action should be taken by
imposing on unwrought aluminium and the other aluminium product categories (i) a quota
of 86.7% or (ii) a tariff rate of 7.7% in addition to any anti-dumping or countervailing duty
collections applicable to such products.147
b. Tariff on a subset of countries: The Aluminium Report alternatively recommends applying
a 23.6% tariff on all imported aluminium products from China; Hong Kong, China; the
Russian Federation; Venezuela; and Viet Nam; in addition to anti -dumping or
countervailing duty collections applicable to aluminium products from these countries. All
other countries would be limited to 100% of their 2017 import volumes.148
The Aluminium Report further states that, in selecting an alternative, the US President could
determine that specific countries should be exempted from the proposed quota by granting those
specific countries 100% of their prior imports in 2017 or exempting them entirely, based on an
overriding economic or security interest of the United States, which could in clude their willingness
to work with the United States to address global excess capacity and other challenges facing the US

133 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 72.
134 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 73.
135 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 74.
136 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 75.
137 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 75.
138 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 84.
139 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 89.
140 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 89.
141 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 91.
142 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 95.
143 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 97.
144 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 100.
145 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 107.
146 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 107.
147 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 108.
148 Aluminium Report, (Exhibit CHN-5 and USA-8), pp. 108-109.

aluminium industry.149 The Aluminium Report also recommends an appeal process by which affected
US parties could seek an exclusion from the tariff or quota imposed and notes that the US Secretary
of Commerce would grant exclusions based on demonstrating (a) a lack of sufficient US production
capacity of comparable products or (b) specific national security based considerations.150
Presidential Proclamations
 The US Secretary of Commerce transmitted the Steel Report and the Aluminium Report to
the US President on 11 January 2018 and 19 January 2018 respectively.151
On 8 March 2018, the US President issued two proclamations adjusting imports into the
United States: (a) Presidential Proclamation 9705 in relation to steel imports152 and (b) Presidential
Proclamation 9704 in relation to aluminium imports.153 The US President concurred with the findings
in the Steel and Aluminium Reports, and pursuant to the recommendations in these reports, imposed
additional import duties of 25% and 10% respectively on certain steel and aluminium imports from
all countries, with exemptions for imports from Canada and Mexico.154 The US President welcomed
any country with which the United States has a security relationship to discuss alternative ways to
address the threatened impairment of US national security caused by imports from that country.155
These proclamations also authori zed the US Secretary of Commerce to provide relief from the
additional duties for any steel or any aluminium article determined not to be produced in the
United States in a sufficient and reasonably available amount or in a satisfactory quality, or based
upon specific national security considerations.156
Following Presidential Proclamations 9704 and 9705, the US President issued additional
proclamations adjusting steel and aluminium imports into the United States. As described in greater
detail below, these p roclamations removed the exemptions granted to Canada and Mexico 157,
granted various exemptions to certain WTO Members 158, introduced import quotas on steel and
aluminium imports from certain countries159, and increased the additional import duty applicable to
steel imports from Türkiye to 50%. 160 Subsequent proclamations also note the existence of
agreements between the United States and countries exempted from the additional duties.
2.2 Measures at issue
In its panel request, China describes the measures it challenges as follows161:
a. On 23 March 2018, the United States imposed 25% and 10% of additional import duty
respectively on certain steel products and alumin ium products from all countries except
Canada, Mexico, Australia , Argentina, the Republic of Korea , Brazi l, and the
European Union.
b. On 1 May 2018, the United States introduced a quota on imports of steel products from
the Republic of Korea and removed the exemption from the additional import duty on
imported aluminium products from the Republic of Korea.

149 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 109.
150 Aluminium Report, (Exhibit CHN-5 and USA-8), p. 109.
151 Presidential Proclamation 9705, (Exhibit CHN-7 and USA-9), p. 11625; Presidential Proclamation
9704, (Exhibit CHN-6 and USA-10), p. 11619.
152 Presidential Proclamation 9705, (Exhibit CHN-7 and USA-9), p. 11625.
153 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11619.
154 Presidential Proclamation 9705, (Exhibit CHN-7 and USA-9), p. 11627; Presidential Proclamation
9704, (Exhibit CHN-6 and USA-10), p. 11621.
155 Presidential Proclamation 9705, (Exhibit CHN-7 and USA-9), p. 11626; Presidential Proclamation
9704, (Exhibit CHN-6 and USA-10), p. 11620.
156 Presidential Proclamation 9705, (Exhibit CHN-7 and USA-9), p. 11627; Presidential Proclamation
9704, (Exhibit CHN-6 and USA-10), p. 11621.
157 See sections 2.2.1.2 and 2.2.2.2 below.
158 See sections 2.2.1.2 and 2.2.2.2 below.
159 See sections 2.2.1.3 and 2.2.2.3 below.
160 See section 2.2.1.1 below.
161 China's panel request, p. 1.

c. On 1 June 2018, the United States removed the exemption from the additional import duty
on imported steel products from Canada, Mexico an d European Union, and removed the
exemption from the additional import duty on imported alumin ium products from Brazil,
Canada, Mexico, and European Union. The United States also introduced quota on imports
of steel products from Argentina and Brazil, and quota on imports of aluminium products
from Argentina.
d. The United States has also provided for and implemented the exclusion of certain products
from certain sources, upon applications, from the additional import duties.
In addition to the above, China's panel request states that the measures at issue include, but
are not limited to, the following instruments of the United States in relation to the above-referenced
actions on the importation of certain steel products and aluminium products162:
a. Presidential Proclamation 9704 of 8 March 2018;
b. Presidential Proclamation 9705 of 8 March 2018;
c. Presidential Proclamation 9710 of 22 March 2018;
d. Presidential Proclamation 9711 of 22 March 2018;
e. Presidential Proclamation 9739 of 30 April 2018;
f. Presidential Proclamation 9740 of 30 April 2018;
g. Presidential Proclamation 9758 of 31 May 2018;
h. Presidential Proclamation 9759 of 31 May 2018;
i. Presidential Proclamation 9772 of 10 August 2018;
j. Presidential Proclamation 9776 of 29 August 2018;
k. Presidential Proclamation 9777 of 29 August 2018;
l. Interim Final Rule regarding Requirements for Submissions Requesting Exclusions From
the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel Into the
United States and Adjusting Imports of Alumi num Into the United States; and the Filing
of Objections to Submitted Exclusion Requests for Steel and Aluminum (US Department
of Commerce);
m. Interim Final Rule regarding Submissions of Exclusion Requests and Objections to
Submitted Requests for Steel and A luminum (the Bureau of Industry and Security, US
Department of Commerce);
n. Multiple BIS Decision Document – Steel Duty Exclusion Request and BIS Decision
Document – Aluminum Duty Exclusion Request in response to various exclusion requests
submitted to the B ureau of Industry and Security (the Bureau of Industry and Security,
US Department of Commerce);
o. Section 232 Tariffs on Aluminum and Steel, Additional Duty on Imports of Steel and
Aluminum Articles under Section 232 of the Trade Expansion Act of 1962 (US C ustoms
and Border Protection);

162 China's panel request, pp. 2-3.

p. Section 232 of the Trade Expansion Act of 1962, as amended (United States Code, Title
19, Section 1862), cited in the Presidential Proclamations above for vesting authorities in
the President of the United States to take the actions therein;
q. The Effect of Imports of Steel on the National Security, An Investigation Conducted Under
Section 232 of the Trade Expansion Act of 1962, As Amended (US Department of
Commerce, 11 January 2018); and
r. The Effect of Imports of Aluminum on the National Security, An Investigation Conducted
Under Section 232 of the Trade Expansion Act of 1962, As Amended (US Department of
Commerce, 17 January 2018).
China's panel request also states that it covers any amendments, supplements, extensions,
replacement measures, renewal measures, related measures, or implementing measures.163
China explained in its first written submission that "[t]he measures at issue in this dispute
consist of the additional import duties on steel and aluminum pr oducts; the country -specific
exemptions granted from those duties and the related quota agreements; and the product -specific
exclusion process."164 In its responses to questions from the Panel, China further advances that it is
challenging two distinct, bro ader measures, each of which comprises a set of individual measures
that all address a particular category of products, i.e. steel or aluminium products. 165 According to
China, t he first broader measure comprise s the set of measures addressing steel product s and
derivative steel articles166 and the legal instruments corresponding to this set of measures consist
of the Steel Report, the relevant Presidential Proclamations, and the related regulations issued by
the USDOC.167 China argues that at minimum, this measure consists of ( 1) the additional import
duties imposed on steel products, including those imposed on derivative steel articles; (2) the
country-specific exemptions, including those provided in relation to derivative steel articles; (3)
import quotas pertaining to steel products; and (4) the product exclusion process as applied to steel
products and individual product exclusions granted in relation to steel products.168
 China considers that the second broader measure comprises the set of measures addressing
aluminium products and derivative aluminium articles169 and that t he legal instruments
corresponding to this set of measures consist of the Aluminium Report, the relevant Presidential
Proclamations, and the related regulations issued by the USDOC.170 China argues that at minimum,
this measure consists of (1) the additional import duties imposed on aluminium products, including
those imposed on derivative aluminium articles; (2) the country-specific exemptions, including those
provided in relation to derivative aluminium articles; (3) import quotas pertaining to aluminium
products; and (4) the product exclusion process as applied to aluminium products and individual
product exclusions granted in relation to aluminium products.171
The following diagram depicts the Panel's understanding of China's presentation of the
measures at issue and aspects of each measure at the time of the establishment of the Panel on
21 November 2018:

163 China's panel request, p.3.
164 China's first written submission, para. 13.
165 China's response to Panel question Nos. 1.a and 1.b. See also China's response to Panel question
No. 84.a, footnote 16 ("[r]eferences in China's prior submissions to 'individual measures' comprising the
broader measures at issue are references to the individual elements comprising those broader measures").
166 See section 2.3 below.
167 China's response to Panel question Nos. 1.a and 1.b.
168 China's response to Panel question No. 2.a.
169 See section 2.3 below.
170 China's response to Panel question Nos. 1.a and 1.b.
171 China's response to Panel question No. 2.a.

Figure 1: China's presentation of measures at issue at the time of Panel establishment

The following sections describe the measures that China challenges in this dispute.

The "broader steel measure"
2.2.1.1 Additional import duties
Pursuant to Presidential Proclamation 9705 of 8 March 2018, all imports of steel products as
specified in the Proclamation shall be subject to an additional 25% ad valorem duty. According to
this Proclamation, this rate of duty is in addition to any other duties, fees, exactions, and charges
applicable to such imported steel articles.172
Subsequently, Presidential Proclamation 9772 of 10 August 2018 imposed a 50% ad valorem
duty on steel articles imported from Türkiye, beginning on 13 August 2018.173
2.2.1.2 Country-specific exemptions
Presidential Proclamation 9705 of 8 March 2018 sets out that the additional 25% ad valorem
duty on imports of steel shall not be applied to imports from Canada and Mexico.174
Subsequently, Presidential Proclamation 9711 of 22 March 2018 amended Presidential
Proclamation 9705 and introduced exemptions for Australia, Argentina, the Republic of Korea, Brazil,
and the member countries of the European Union, in addition to those already granted to Canada
and Mexico, until 1 May 2018.175
Presidential Proclamation 9740 of 30 April 2018 introduced further modifications by (a)
extending the exemptions granted to Canada, Mexico, and the European Union until 1 June 2018176;
(b) extending the exemption s for Argentina, Australia, and Brazil until an unspecified date 177; and
(c) extending the exemption to the Republic of Korea until an unspecified date.178
Presidential Proclamation 9759 of 31 May 2018 further extended the exemptions from the
additional import duties granted to Argentina, Australia, and Brazil until an unspecified date.179 This
Proclamation did not extend the exemptions for Canada, Mexico, and the European Union.
2.2.1.3 Import quotas
Presidential Proclamation 9740 of 28 April 2018 describes how the United States and the
Republic of Korea agreed upon a quota on steel imports.180 Part A of the Annex to this Proclamation
sets out the amendments to US Note 16 of subchapter III of chapter 99 of the Harmonized Tariff
Schedule of the United States (HTSUS) that provide for this quota treatment 181, and Part B of the
Annex to the Proclamation details the annual aggregate limits for the applicable quotas.182
Presidential Proclamation 9759 of 31 May 2018 introduced quotas on steel products from
Argentina and Brazil.183 The Annex to this Proclamation details the annual aggregate limits for the
applicable quotas.184
2.2.1.4 Product-specific exclusion process
Presidential Proclamation 9705 of 8 March 2018 authorized the US Secretary of Commerce to
provide relief from the additional duties set out therein for any steel article determined not to be

172 Presidential Proclamation 9705, (Exhibit CHN-7 and USA-9), p. 11627.
173 Presidential Proclamation 9772, (Exhibit CHN-14), p. 40430.
174 Presidential Proclamation 9705, (Exhibit CHN-7 and USA-9), pp. 11626-11627.
175 Presidential Proclamation 9711, (Exhibit CHN-9 and USA-11), pp. 13361-13363.
176 Presidential Proclamation 9740, (Exhibit CHN-11 and USA-13), p. 20685.
177 Presidential Proclamation 9740, (Exhibit CHN-11 and USA-13), p. 20684.
178 Presidential Proclamation 9740, (Exhibit CHN-11 and USA-13), p. 20684.
179 Presidential Proclamation 9759, (Exhibit CHN-13 and USA-15), p. 25858.
180 Presidential Proclamation 9740, (Exhibit CHN-11 and USA-13), p. 20683.
181 Presidential Proclamation 9740, (Exhibit CHN-11 and USA-13), p. 20685.
182 Presidential Proclamation 9740, (Exhibit CHN-11 and USA-13), pp. 20697-20705.
183 Presidential Proclamation 9759, (Exhibit CHN-13 and USA-15), pp. 25857-25858.
184 Presidential Proclamation 9759, (Exhibit CHN-13 and USA-15), p. 25861.

produced in the United States in a sufficient and reasonably available amount or of a satisfactory
quality and also to provide such relief based on specific national security considerations.185
On 19 March 2018, the US Department of Commerce issued the requirements for submissions
requesting exclusions from the remedies instituted in the Presidential Proclamations adjus ting
imports of steel and aluminium into the United States (March Interim Final Rule).186 This document
specifies the requirements and process by which parties in the United States may submit requests
for exclusions from the duties instituted by the US President, including how parties in the
United States may submit objections to exclusion requests. It further identifies the relevant time
periods for submitting such exclusion requests and any objections to those requests, the method for
submitting such requests, and the information that must be included in such requests and
objections.187
On 11 September 2018, US Department of Commerce issued a document titled "Submissions
of Exclusion Requests and Objections to Submitted Requests for Steel and Aluminum" (September
Interim Final Rule).188 This document introduces revisions to the requirements set out in the March
Interim Final Rule and "changes to the exclusion processes in this rule … informed by both the
comments received in response to the March 19 rule and the Department's experience with
managing the exclusion process". 189 According to this document, the modifications were aimed at
improving transparency, effectiveness, and fairness of the product exclusion process, including by
adding a rebuttal and surrebuttal process.190
Presidential Proclamation 9777 of 29 August 2018 authorized the US Secretary of Commerce
to provide relief from quantitative limitations on steel articles adopted pursuant to Section 232,
including those set forth in Presidential Proclamations 9740 and 9759, on the same basis as the
Secretary is authorized to provide relief from the duty established in Presidential Proclamation
9705.191
The "broader aluminum measure"
2.2.2.1 Additional import duties
Pursuant to Presidential Proclamation 9704 of 8 March 2018, all imports of aluminium articles
as specified in the Proclamation shall be subject to an additional 10% ad valorem duty. According
to this Proclamation, this rate of duty is in addition to any other duties, fees, exactions, and charges
applicable to such imported aluminium articles.192
2.2.2.2 Country-specific exemptions
Presidential Proclamation 9704 of 8 March 2018 sets out that the additional 10% ad valorem
duty on imports of aluminium shall not be applied to imports from Canada and Mexico.193
Subsequently, Presidential Proclamation 9710 of 22 March 2018 amended Presidential
Proclamation 9704 and introduced exemptions for Australia, Argentina, the Republic of Korea, Brazil,
and the member countries of the European Union, in addition to those already granted to Canada
and Mexico, until 1 May 2018.194

185 Presidential Proclamation 9705, (Exhibit CHN-7 and USA-9), p. 11627. Presidential Proclamation
9711 of 22 March 2018 amended Presidential Proclamation 9705 of 8 March 2018 by introducing the following
language: "Such relief may be provided to directly affected parties on a party-by-party basis taking into
account the regional availability of particular articles, the ability to transport articles within the United States,
and any other factors as the Secretary deems appropriate". (Presidential Proclamation 9711, (Exhibit CHN-9
and USA-11), p. 13364).
186 March Interim Final Rule, (Exhibit CHN-17 and USA-20), pp. 12106-12112.
187 March Interim Final Rule, (Exhibit CHN-17 and USA-20), p. 12110.
188 September Interim Final Rule, (Exhibit CHN-18 and USA-21), pp. 46026-46065.
189 September Interim Final Rule, (Exhibit CHN-18 and USA-21), p. 46027.
190 September Interim Final Rule, (Exhibit CHN-18 and USA-21), p. 46027.
191 Presidential Proclamation 9777, (Exhibit CHN-16 and USA-18), p. 45026.
192 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11621.
193 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), pp. 11620-11621.
194 Presidential Proclamation 9710, (Exhibit CHN-8 and USA-12), p. 13357.

Presidential Proclamation 9739 of 30 April 2018 introduced further modifications by (a)
extending the exemptions granted to Canada, Mexico, and the European Union until 1 June 2018195;
(b) extending the exemption for Argentina, Australia, and Brazil until an unspecified date 196; and
(c) ending the exemption granted to the Republic of Korea.197
Presidential Proclamation 9758 of 31 May 2018 further extended the exemptions from the
additional import duties granted to Argentina and Australia until an unspecified d ate.198 This
Proclamation did not extend the exemptions for Brazil, Canada, Mexico, and the European Union.199
2.2.2.3 Import quotas
Presidential Proclamation 9758 of 31 May 2018 introduced quotas for aluminium products
from Argentina. 200 The Annex to this Proclamation details the annual aggregate limits for the
applicable quotas.201
2.2.2.4 Product-specific exclusion process
Presidential Proclamation 9704 of 8 March 2018 authorized the US Secretary of Commerce to
provide relief from the additional duties set out therein for any aluminium article determined not to
be produced in the United States in a sufficient and reasonably available amount or of a satisfactory
quality and also to provide such relief based on specific national security considerations.202
On 19 March 2018, the US Department of Commerce issued the requirements for submissions
requesting exclusions from the remedies instituted in the Presidential Proclamations adjusting
imports of steel and aluminium into the United States.203 This document specifies the requirements
and process by which parties in the United States may submit requests for exclusions from the duties
instituted by the US President, including how parties in the United States may submit objections to
exclusion requests. It further identifies the relevant time periods for submitting such exclusion
requests and any objections to those requests, the method for submitting such requests, and the
information that must be included in such requests and objections.204
On 11 September 2018, US Department of Commerce issued a document titled "Submissions
of Exclusion Requests and Objections to Submitted Requests for Steel and Aluminum". 205 This
document introduces revisions to the requireme nts set out in the March Interim Final Rule and
"changes to the exclusion processes in this rule … informed by both the comments received in
response to the March 19 rule and the Department's experience with managing the exclusion
process".206 According to this document, the modifications were aimed at improving transparency,
effectiveness, and fairness of the product exclusion process , including by adding a rebuttal and
surrebuttal process.207
Presidential Proclamation 9776 of 29 August 2018 authorized the US Secretary of Commerce
to provide relief from quantitative limitations on aluminium articles adopted pursuant to Section 232,

195 Presidential Proclamation 9739, (Exhibit CHN-10 and USA-14), p. 20678.
196 Presidential Proclamation 9739, (Exhibit CHN-10 and USA-14), pp. 20677-20678.
197 Presidential Proclamation 9739, (Exhibit CHN-10 and USA-14), pp. 20678-20679.
198 Presidential Proclamation 9758, (Exhibit CHN-12 and USA-16), pp. 25849-25850.
199 Presidential Proclamation 9758, (Exhibit CHN-12 and USA-16), p. 25850.
200 Presidential Proclamation 9758, (Exhibit CHN-12 and USA-16), pp. 25850-25851.
201 Presidential Proclamation 9758, (Exhibit CHN-12 and USA-16), pp. 25853-25855.
202 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11621. Presidential Proclamation
9710 of 22 March 2018 amended Presidential Proclamation 9704 of 8 March 2018 by introducing the following
language: "Such relief may be provided to directly affected parties on a party-by-party basis taking into
account the regional availability of particular articles, the ability to transport articles within the United States,
and any other factors as the Secretary deems appropriate". (Presidential Proclamation 9710, (Exhibit CHN-8
and USA-12), p. 13358).
203 March Interim Final Rule, (Exhibit CHN-17 and USA-20), pp. 12106-12112.
204 March Interim Final Rule, (Exhibit CHN-17 and USA-20), p. 12110.
205 September Interim Final Rule, (Exhibit CHN-18 and USA-21), pp. 46026-46065.
206 September Interim Final Rule, (Exhibit CHN-18 and USA-21), p. 46027.
207 September Interim Final Rule, (Exhibit CHN-18 and USA-21), p. 46027.

including those set forth in Presidential Proclamation 9758, on the same basis as the Secretary is
authorized to provide relief from the duty established in Presidential Proclamation 9704.208
2.3 Measures amended, modified, or replaced after the establishment of the Panel
In its responses to questions from the Panel after the first meeting and in its second written
submission, China describes certain factual and legal developments of the measures at issue that
occurred after China's request for the establishment of the Panel. 209 China requests the Panel to
consider within its terms of reference Presidential Proclamation 9980 imposing additional import
duties on derivative steel and aluminium products and exempting certain WTO Members from said
duties.210
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
 China requests the Panel to find that211:
a. The United States has acted inconsistently with Article 2.1 of the Agreement on
Safeguards and, consequently, Article XIX:1(a) of the GATT 1994, because the
United States has applied safeguard measures to certain imported steel and alumin ium
products without f irst having determined, pursuant to the subsequent provisions of the
Agreement on Safeguards, that such products are being imported into its territory in such
increased quantities, absolute or relative to domestic production, and under such
conditions as t o cause or threaten to cause serious injury to the domestic industry that
produces like or directly competitive products, as a result of unforeseen developments and
of the effect of the obligations incurred under the GATT 1994;
b. The United States has acted inconsistently with Article 2.2 of the Agreement on
Safeguards, because the United States has not applied the safeguard measures to
imported products irrespective of their sources;
c. The United States has acted inconsistently with Article 4.1 of the Agreeme nt on
Safeguards, because the United States has not properly determined that there is serious
injury, or threat thereof, to a domestic industry;
d. The United States has acted inconsistently with Article 4.2 of the Agreement on
Safeguards, because the United States has failed to properly evaluate all relevant factors
having a bearing on the situation of the domestic industry and has failed to demonstrate
the existence of a causal link between increased imports and serious injury or the threat
thereof, including by not attributing injury caused by factors other than increased imports;
e. The United States has acted inconsistently with Article 5.1 of the Agreement on
Safeguards, because the United States has applied safeguard measures beyond the extent
necessary to prevent or remedy serious injury and to facilitate adjustment;
f. The United States has acted inconsistently with Article 7 of the Agreement on Safeguards,
because the United States has applied safeguard measures without making provision for
their application only for the period necessary to prevent or remedy serious injury and to
facilitate adjustment, without limitation to four years, and without making provision for
progressive liberalization at regular intervals;
g. The United States has acted inconsistentl y with Article 11.1(a) of the Agreement on
Safeguards because the United States has taken emergency action on imports of particular
products as set forth in Article XIX of the GATT 1994, without such action conforming with
that provision applied in accordance with the Agreement on Safeguards;

208 Presidential Proclamation 9776, (Exhibit CHN-15 and USA-19), p. 45020.
209 China's second written submission, para. 119; response to Panel question No. 86.
210 China's response to Panel question No. 86.
211 China's first written submission, para. 177. See also China's panel request, pp. 3-4.

h. The United States has acted inconsistently with Articles 12.1, 12.2 and 12.3 of the
Agreement on Safeguards, and, consequently, Article XIX:2 of the GATT 1994, because
the United States has failed to comply with any of the notification and consultation
obligations set out in these provisions;
i. The United States has acted inconsistently with Article II:1(a) and (b) of the GATT 1994,
because the United States has not provided treatment no less favourable to steel and
aluminium products originating in China than that provided for in the United States'
Schedule annexed to the GATT 1994;
j. The United States has acted inconsistently with Article I:1 of the GATT 1994, because,
with respect to customs duties and charges of any kind imposed on or in connection with
importation, and with respect to all rules and formalities in connection with importation,
the United States has not accorded certain advantages, favours, privileges or immunities
granted to products originating in certain other Members immediately and unconditionally
to the like products originating in the territories of all other Members, including China;
k. The United States has acted inconsistently with Article X:3(a) of the GATT 1994, because
the United States has failed to administer its laws, regulations, decisions and rulings in
relation to the measures at issue in a uniform, impartial and reasonable manner.
China requests that the Panel recommend that the United States bring the challenged
measures into conformity with its obligations under the relevant covered agreements.
The United States requests that the Panel find that the United States has invoked its essential
security interests under Article XXI(b) of the GATT 1994 and so report to the DSB.212
4 ARGUMENTS OF THE PARTIES
The arguments of the parties are reflected in their executive summaries, provided to the Panel
in accordance with paragraph 23 of the Working Procedures adopted by the Panel (see Annex B).
5 ARGUMENTS OF THE THIRD PARTIES
The arguments of certain third parties are reflected in their executive summaries, provided in
accordance with paragraph 26 of the Working Procedures adopted by the Panel (see Annex C).
6 INTERIM REVIEW
On 29 June 2022, the Panel issued its Interim Report to the parties. On 3 August 2022, the
United States submitted written requests for review of the Interim Report. China did not submit any
requests for review of the Interim Report. Neither party requested an interim review meeting. On
31 August 2022, China submitted comments on the United States' requests for review.
In accordance with Article 15.3 of the DSU, this section of the Report sets out the Panel's
response to the requests made at the interim review stage, including certain requests discussed in
greater detail below.
The Panel notes that the requests for review of the Interim Report include requests to provide
more detailed summaries of the parties' arguments. Throughout the Report, the Panel has
summarized the parties' arguments in order to facilitate understanding of the c ontested issues
addressed in the Panel's reasoning and findings. The Panel has not comprehensively reproduced
every aspect of the parties' arguments, which are more fully reflected in the executive summaries
annexed to this Report. Rather, the Panel has summarized the relevant arguments in the context of
its own objective assessment of the matter before it, having regard for its mandate and discretion
to make such findings as will assist the DSB in making the recommendations or rulings provided for
in the relevant covered agreements. In this regard, it is generally within the discretion of a panel to

212 United States' first written submission, para. 186.

decide which arguments or evidence it addresses or relies on in reaching its findings. 213 Subject to
the explanations and modifications described below, the Panel considers that the parties' arguments
are adequately reflected and addressed in this Report, including the annexes thereto, to fulfil the
requirements of the Panel's mandate under the DSU.214
In addition, the Panel has made typographical and other editori al modifications in the Report,
including in response to the requests for review. The discussion below refers to the numbering of
sections, paragraphs, and footnotes in the Final Report.
6.1 Article XIX of the GATT 1994 and the Agreement on Safeguards
The United States requests the Panel to include in paragraph 7.77 "additional support" for its
conclusions regarding the terms "pursuant to" in Article 11.1(c) of the Agreement on Safeguards. In
particular, the United States argues that the Panel's conclusions in this paragraph are supported by
the ordinary meaning of the terms "sought, taken or maintained" in Article 11.1(c). China considers
that incorporating the United States' arguments on the ordinary meaning of the words "sought,
taken or maintained" in this paragraph is unnecessary and requests that the Panel deny the changes
requested by the United States.
In section 7.7.2 of its Report, the Panel has examined the terms "pursuant to" in Article 11.1(c)
considering their ordinary meaning and having regard for the relevant context provided by terms
used elsewhere in the Agreement on Safeguards, including those that appear to convey a
relationship of consistency with the requirements of another provision of the covered agreements.
The Panel has further considered the use of terms in the three authentic language versions of the
Agreement on Safeguards in accordance with the customary rules of interpretation of public
international law. The Panel has also found support for its conclusions in the object and purpose o f
the Agreement on Safeguards, as expressed in its preamble, and the negotiating history of
Article 11.1(c). Accordingly, the Panel does not consider it necessary to additionally address the
United States' arguments concerning the terms "sought, taken or m aintained" in Article 11.1(c) to
determine the meaning of "pursuant to" in that provision.
The Panel has taken note of the United States' arguments concerning the meaning of "sought"
in Article 11.1(c), which are related to the United States' contention t hat formal notification of
safeguard measures to the WTO is a "condition precedent" to the applicability of safeguard
disciplines. As part of its objective assessment of the legal characterization of the measures under
Article 11.1(c), the Panel has taken into account the manner in which the measures at issue were
notified to relevant WTO bodies or committees. Recalling the nature of the Panel's inquiry on the
applicability of safeguard disciplines to the measures at issue, the Panel does not consider it
necessary to address in further detail the United States' arguments on the meaning of "sought" in
Article 11.1(c). In this respect, the Panel additionally recalls its mandate and discretion to make
such findings as will assist the DSB in making the rulings and recommendations provided for in the
relevant covered agreements.
The United States requests the Panel to revise paragraph 7.84 to accurately reflect its
argument that "a key condition precedent to the exercise of [the right to apply a safeguard measure]
is that the Member has invoked Article XIX as the legal basis for its measure by providing notice in
writing and affording affected Members an opportunity to consult." According to the United States,
by suggesting "the United States' [contends] that, based on Article XIX:2 of the GATT 1994, formal
notification of safeguard measures to the WTO is a 'condition precedent' to the applicability of
safeguard disciplines", the Panel misstates the United States' position. China requests that the Panel
deny the changes requested by the United States as the argument that "invocation" is a "condition
precedent" for the applicability of safeguards disciplines is, in fact, an argument that formal
notification under Article XIX:2 of the G ATT 1994 is a "condition precedent". Should the Panel
nevertheless accept the United States' request, China requests that the Panel incorporate reference
to China's responsive arguments.
The Panel notes that, in its submissions, the United States refers v ariously to "notice",
"invocation", and "invocation through notice" under Article XIX:2 of the GATT 1994 as a "condition

213 See e.g. Appellate Body Reports, Ukraine – Ammonium Nitrate, para. 6.42; US – COOL, para. 299;
214 See section 7.1 below.

precedent" for applicability of safeguard disciplines. The Panel has accordingly retained its summary
of the United States' arguments in this respect and revised the corresponding footnote to clarify the
various terms used by the United States in its submissions to the Panel.
6.2 Article XXI(b) of the GATT 1994
The United States requests an addition to paragraph 7.106 of certain arguments it puts
forward on the interpretation of Article XXI(b), including its arguments on which phrase in
Article XXI(b) is modified by subparagraphs (i) and (ii) and the reconciliation of different language
versions of Article XXI(b). The United States also requests that paragraph 7.107 include a more
complete description of the complainant's arguments on the interpretation of Article XXI(b). China
disagrees with the United States' request and considers that the Panel has adequately described the
United States' pro posed interpretation of Article XXI(b), including by reference to relevant
submissions of the United States. In addition, China does not consider further elaboration of China's
interpretation of Article XXI(b) to be necessary.
Recalling its approach to reflecting the parties' arguments on the issues raised in this dispute,
the Panel declines to expand the summaries of the parties' arguments in these paragraphs. In
response to the United States' request, the Panel further notes t hat modifications to the Interim
Report discussed below include expanded reference to arguments that the United States requested
to be reproduced in these paragraphs.
The United States requests that the Panel delete the footnote to paragraph 7.112 and
instead address its substantive content in the body of the Report, particularly concerning the
United States' arguments on the differences in the French and Spanish versions of Article XXI(b)
and the reconciliation of the three language versions of the text. In the United States' view, the
Panel does not engage with these arguments and "misstates them in a footnote reference". The
United States requests further engagement with these arguments and, specifically, that the Panel
"explain why it is incorrect to read the sentence [in Article XXI(b)] as consisting of three alternatives"
for each subparagraph. China requests that the Panel deny the United States' request. In China's
view, the Panel has adequately explained the basis for its finding in the relevant paragraph and has
made sufficient reference to the United States' arguments in the accompanying footnote, which
makes clear that the Panel evaluated but did not consider it necessary to further explore the parties'
arguments on the reconciliation of the three authentic texts.
The Panel acknowledges the United States' indication in its request for interim review that it
"agrees (in the interpretation that best reconciles the three language versions) with the Panel that
each of the paragraphs 'describe[s] the a ction referred to in Article XXI(b)', but mediated through
the relative clause 'which it considers'." The Panel has accordingly retained the statement of its
understanding that the parties agree that the subparagraphs qualify and relate to the "action" in
Article XXI(b), notwithstanding some disagreement as to the precise basis for this conclusion. The
Panel has also expanded the summary of the United States' arguments regarding the reconciliation
of texts in the three authentic language versions and its co ntention that, under this reconciled
interpretation, the terms of the provision still form a "single relative clause" that begins with the
phrase "which it considers" and contains the entirety of each subparagraph.
Regarding the United States' request for further elaboration in the body of the Report, the
Panel briefly reviews certain points of its analysis of the United States' arguments to clarify the
overall context in which the footnote appears in the Panel's reasoning regarding the interpretation
of Article XXI(b) in this dispute. In section 7.8.2, the Panel focuses specifically on the United States'
argument that "which it considers" qualifies the subparagraphs of Article XXI(b) within a "single
relative clause" that entirely reserves the subparagraphs to the judgment of the invoking Member.
In accordance with Article 3.2 of the DSU, the Panel's textual analysis addresses the function and
ordinary meaning of the subparagraphs as describing certain kinds of permitted "action", including
reference to the structure and punctuation of Article XXI of the GATT 1994. In this regard, the Panel
concludes that the paragraphs and subparagraphs form alternative endings to a complete sentence
under Article XXI, and the opening terms of each of the subparagraphs ("rel ating to" and "taken")
qualify the "action" in paragraph (b). Moreover, the subparagraphs are exhaustive in establishing
the circumstances in which a Member may take the "action" under Article XXI(b).

Following these textual conclusions, the Panel addresses grammatical aspects of the parties'
arguments as well as other aspects of textual interpretation and ordinary meaning, particularly the
principle of effective treaty interpretation and the exhaustive types of "action" specified in the
subparagraphs of Article XXI(b). The Panel additionally addresses relevant context in Articles XXII
and XXIII of the GATT 1994 and the DSU, the object and purpose of maintaining the balance of
rights and obligations under the covered agreements, and non -treaty materials submitted by the
parties relating to the interpretation of Article XXI of the DSU. Based on the entirety of this analysis,
the Panel concludes that the terms "which it considers" in Article XXI(b) do not qualify the
subparagraphs to render them "self-judging" or "non-justiciable" as argued by the United States.
In this manner, the Panel has addressed multiple aspects of the interpretation of
Article XXI(b) with specific reference to the United States' argument regarding a "single relative
clause" purpor tedly encompassing the subparagraphs of that provision. As one element of this
analysis, the Panel has noted the concordance of plural and feminine terms in the French and Spanish
versions of Article XXI(b) to support the qualification of the term "action" by the subparagraphs. In
other parts of its assessment, the Panel has also examined the ordinary meaning of actions "relating
to" specified "materials" and "traffic" and to actions "taken in time of" specified circumstances. The
Panel has further accounte d for the structure of Article XXI(b) and the textual separation of the
subparagraphs into an enumerated list, which corresponds to the role of the subparagraphs as
alternative sentence endings that collectively and exhaustively delimit the scope of Article XXI(b).
The Panel recalls its mandate and discretion to make such findings as will assist the DSB in
making the recommendations or rulings provided for in the relevant covered agreements. In
assessing the contested issues of interpretation regarding Art icle XXI(b) and the review of its
invocation by a Member in dispute settlement proceedings, the Panel did not find it necessary to
address in greater detail the parties' arguments on the reconciliation of the three authentic texts of
the provision. In addition, the United States does not explain the relevance of these arguments to
the Panel's overall analysis and conclusions on whether a "single relative clause" beginning with the
phrase "which it considers" renders Article XXI(b) "self-judging" or "non-justiciable" in the sense
argued by the United States. To the extent the United States' request concerns the weight assigned
to its arguments and the merits of the Panel's analysis, the Panel notes that interim review is not an
appropriate stage for relitigating arguments already submitted by the parties and addressed to the
extent necessary in the Panel's findings. 215 In these circumstances, the Panel has modified this
footnote to expand the summary of the parties' arguments and to clarify that the Pa nel does not
consider it necessary for the purposes of this dispute to address in further detail the parties'
arguments on the reconciliation of the three authentic texts in relation to the contested issues of
interpretation under of Article XXI(b) and its application to the measures at issue in this dispute.
The United States requests that the Panel introduce certain modifications to
paragraphs 7.119 and 7.120 in order to more accurately reflect its arguments on English
grammar rules in the context of the interpretation of Article XXI(b). China does not object to the
proposed clarification to paragraph 7.119 but requests that the Panel deny certain changes
requested by the United States. In particular, China disagrees with the incorporation of additional
details of the United States' arguments as the Panel is not obligated to address every specific
argument raised by the parties.
The Panel has made the requested modification in paragraph 7.119 to clarify the context
regarding subparagraphs (i) and (ii) of Article XXI(b) in which the United States referred to the rules
of English grammar. The Panel declines the additional suggested text in paragraph 7.120 in which
the Panel is addressing grammatical considerations as part of its overall assessment of the contested
issues of interpretation under Article XXI(b) in this dispute. In particular, the Panel's analysis in
these paragraphs notes the absence of a definitive rule of grammar supporting the United States'
construction of the provision as containing a "singl e relative clause" that wholly reserves the
conditions and circumstances of the subparagraphs to the judgment of the invoking Member. The
Panel has modified these paragraphs to clarify that, with respect to the interpretation of
Article XXI(b), the qualification of the noun "action" in paragraph (b) by the subparagraphs is not
solely determined by rigid application of grammar but follows from the ordinary meaning of these
terms, as elaborated in the remainder of the Panel's analysis.

215 See e.g. Panel Reports, India – Solar Cells, para. 6.24; Indonesia – Iron or Steel Products, Annex A-

The United States requests that the Panel expand the summary of arguments in
paragraph 7.133 on the interpretation of the terms "emergency in international relations" in
Article XXI(b)(iii), and that the Panel address these arguments in paragraph 7.137 setting out the
Panel's interpretation of these terms. China requests that the Panel deny the United States' requests
to further address its argument concerning the definition of the term "emergency in international
relations". In China's view, the elaboration on the United States' interpretation of the term
"emergency" in Article XXI(b)(iii) does not constitute a "key" argument as commented by the
United States in its requests for interim review.
As noted, the Panel has not comprehensively reproduced every aspect of the parties'
arguments but rather has referred to the parties' arguments in order to facilitate understanding of
the contested issues addressed in the Panel's reasoning and findings. In this connection, the Panel
has focused on the gravity or severity of an "emergency i n international relations" within the
meaning of Article XXI(b)(iii), particularly regarding the impact on international relations of
situations falling under that provision. Moreover, the Panel has interpreted the terms "emergency in
international relations" in accordance with Article 3.2 of the DSU and its mandate to make such
findings as will assist the DSB in making the recommendations or rulings provided for in the covered
agreements. In section 7.8.3, the Panel has addressed the interpretation of Article XXI(b)(iii) to the
extent necessary to assess whether, based on the evidence and arguments submitted by the parties,
the measures at issue were "taken in time of war or other emergency in international relations". On
the basis of the foregoing, the Pan el does not consider it necessary to further address the
United States' arguments in this regard.
6.3 Appendices
The United States requests that the Panel incorporate the analysis and conclusions contained
in Appendices A and B into the main body of the Report. The United States considers the materials
described in these appendices to be integral to the Panel's analysis and notes tha t they were a
subject of disagreement and argument by the parties. China does not consider it necessary for the
Panel to incorporate the analysis and conclusions currently reflected in the appendices into its
Report.
The Panel recalls its conclusion in Appendix A that its review of the negotiating history of
Article 11.1(c) of the Agreement on Safeguards confirms its interpretation of that provision. The
Panel has also concluded that the materials examined in Appendix B support the general conclusion
that the terms of Article XXI(b) of the GATT 1994 establish a right to take action for the protection
of essential security interests in the conditions and circumstances described in the three
subparagraphs. The appendices set out in greater detail the specific materials examined, the
arguments advanced by the parties, and the bases for the Panel's conclusions. The Panel therefore
declines the United States' request, and the Panel has modified the references to the appendices in
the Report to specify which appendix is being referred to in the Panel's analysis.
7 FINDINGS
7.1 Mandate under the DSU
The Panel was established by the DSB in accordance with Article 6 of the DSU with standard
terms of reference, as provided in Article 7.1 of the DSU, "[t]o examine, in the light of the relevant
provisions of the covered agreements cited by the parties to the dispute, the matter referred to the
DSB" in the complainant's panel request and "to make such findings as will assist the DSB in making
the recommendations or in giving the rulings provided for in those agreements ". Pursuant to
Article 7.2 of the DSU, the Panel is required to "address the relevant provisions in any covered
agreement or agreements cited by the parties to the dispute".
The matter referred to the DSB in the complainant's panel request comprises claims under the
GATT 1994 and the Agreement on Safeguards with respect to the measures at issue.216 In response
to these claims, the United States requests that the Panel find that the United States has invoked
its essential security interests under Article XXI(b) of the GATT 1994 and so report to the DSB. 217
Although the United States acknowledges that "the Panel has jurisdiction over this dispute, because

216 See section 3 above.
217 United States' first written submission, para. 186.

the DSB has established the Panel to examine the matter set out in the panel request"218, it argues
that its " invocation of Article XXI is a non -justiciable issue as Article XXI makes its invocation
self-judging by the Member taking the security action ".219 In the United States' view, "[i]t follows
that the Panel may not make findings on the complainant's claims because they are not appropriate
or suitable for adjudication by the Panel and may not make recommendations because no finding of
WTO-inconsistency can be made."220
In response to questions from the Panel, the United States clarifies that "the United States is
not requesting that the Panel refrain from applying the rules and procedures of the DSU" but rather
submits that "[the United States'] approach reflects an outcome consistent with a panel 's terms of
reference from the DSB and function of a panel under the DSU, and a proper interpretation of
Article XXI(b) under the Vienna Convention" on the Law of Treaties (Vienna Convention).221
According to the United States, the Panel's "jurisdiction" conferred by Articles 7.1 and 11 of the DSU
is constrained by "the ordinary meaning of the terms in Article XXI(b)", as interpreted in accordance
with the customary rules of interpretation of public international law. The United States thus clarifies
that its arguments on "justiciability" and the "political" nature of the questions involved rest on the
interpretation of the terms of Article XXI(b) in accordance with the interpretive principles of
Article 3.2 of the DSU and the P anel's terms of reference.222 As addressed in greater detail below,
the complainant also refers to these interpretive principles and the requirements of the Panel's terms
of reference in contesting the United States' characterization of Article XXI(b) as "non-justiciable".223
Based on its terms of reference, the Panel's mandate under the DSU is to examine the matter
raised by the complainant in its panel request and to address the United States' invocation of
Article XXI(b) of the GATT 1994. The purpose of this examination is to enable the Panel to make
such findings as will assist the DSB in discharging its responsibilities under the covered agreements.
In fulfilling this mandate, the Panel is mindful of its function and duty under Article 11 of the DSU to
make an objective assessment of the matter before it, including an objective assessment of the facts
of the case and the applicability of and conformity with the relevant covered agreements. The Panel
is further guided by the role of WTO dispute settlement , as recognized in Article 3.2 of the DSU, to
preserve the rights and obligations of Members under the covered agreements, and to clarify the
existing provisions of those agreements in accordance with customary rules of interpretation of
public international law.224
The Panel observes that the parties affirm these fundamental principles regarding the
assessment of the complainant's claims and the United States' invocation of Article XXI(b) of the
GATT 1994 under the rules and procedures of the DSU. 225 However, the part ies dispute the
application of these principles to the matter before the Panel, particularly with respect to the
applicability of Article XIX of the GATT 1994 and the Agreement on Safeguards to the measures at
issue, and the relationship between those disciplines and Article XXI(b) of the GATT 1994. Regarding
the United States' invocation of Article XXI(b), the parties further dispute the extent to which the
terms of this provision reserve discretion to the invoking Member taking action that it considers
necessary for the protection of its essential security interests, as well as the applicability of this

218 United States' first written submission, para. 183.
219 United States' first written submission, para. 185. The United States submits that "'jurisdiction' can
be defined as the extent of power of the Panel under the DSU to exercise its judicial authority or decide a
particular case", while "'justiciability', by contrast, relates to whether a matter is appropriate or suitable for
adjudication by a court, or in this context, whether an issue is subject to findings by the Panel under the DSU."
(Ibid. para. 183).
220 United States' first written submission, para. 185. The United States further argues that "the self-
judging text included in Article XXI" reflects a recognition that "issues of essential security are inherently
political in nature, and there are no legal criteria by which a Member's consideration of its essential security
interests can be objectively determined". (Ibid.).
221 United States' response to Panel question Nos. 26-29.
222 See United States' response to Panel question No. 54 (arguing that "it is not the political nature of
the issues covered under Article XXI(b) that lead to an interpretation that the provision is self-judging" but
rather "[i]t is the text of Article XXI(b) that establishes its self-judging nature"); see also United States'
opening statement at the first meeting of the Panel, paras. 3-4 and 49.
223 See section 7.8 below.
224 See Appellate Body Reports, Japan – Alcoholic Beverages II, para. 31; EC – Computer Equipment,
225 See e.g. United States' response to Panel question No. 25 ("the Panel's function is to objectively
assess the matter before it by interpreting Article XXI(b) in accordance with the customary rules of
interpretation"); China's response to Panel question No. 26.

provision to the challenged measures based on the arguments and evidence submitted in these
proceedings.
The Panel is required under the DSU to assess the se disputed issues in an objective manner
and to make findings on the basis of that assessment that will assist the DSB in making the
recommendations or rulings provided for in the covered agreements. In furtherance of this mandate,
the Panel will examine the matter within its terms of reference by assessing the applicability of and
conformity with the relevant provisions of the GATT 1994 and the Agreement on Safeguards, based
on the interpretive principles of Article 3.2 of the DSU and the arguments and evidence presented
by the parties. As prescribed by Article 12.7 of the DSU, the Panel will set out its relevant findings
of fact, the applicability of relevant provisions, and the basic rationale behind any findings and
recommendations that it makes.
7.2 Order of analysis
In considering the appropriate order of analysis of the issues outlined above, the Panel has
discretion to structure its analysis taking into account the specific measures, claims, arguments, and
relevant provisions at issue.226 Having considered the arguments presented by the parties in this
dispute227, the Panel will first address issues concerning its terms of reference and the identification
of the measures at issue. Following this determination of the measures within its terms of reference,
the Panel will examine the complainant's claims that the measures are inconsistent with certain
provisions of the covered agreements.
In principle, the obligations set forth in the WTO covered agreements apply cumulatively.228 In
this dispute, the parties disagree as to whether the WTO rules on safeguards set forth in Article XIX
of the GATT 1994 and the Agreement on Safeguards apply to the measures at issue , and the
complainant raises other claims under the GATT 1994 which are indepe ndent of those contested
issues of applicability . Taking these circumstances into account, along with the operation of the
measures at issue and the manner in which the parties have presented their argument s, the Panel
considers it appropriate to begin its assessment with the claims under Articles I:1, II:1, and X:3 of
the GATT 1994.
The Panel will first assess the consistency of the relevant measures with Article II:1 of the
GATT 1994 and the relevant commitments in the United States' Schedule of Concessions. The Panel
will then assess the claims under Article I:1 of the GATT 1994 concerning most-favoured-nation
treatment. The Panel will next address the claims under Article X:3 of the GATT 1994 concerning
the administration of measures. The Panel will then assess the remainder of the complainant's claims
under Article XIX of the GATT 1994 and the Agreement on Safeguards , including the parties'
disagreement as to the applicability of this provision and agreement to the measures at issue.
The Panel will next address the United States' invocation of Article XXI(b) of the GATT 1994
in relation to any measures falling within the Panel's terms of reference found to be inconsistent
with provisions of the covered agreements. The Panel will assess the arguments and evidence

226 See Appellate Body Reports, Canada – Wheat Exports and Grain Imports, para. 126; US – COOL
(Article 21.5 – Canada and Mexico), para. 5.229; Panel Reports, India – Solar Cells, paras. 7.41-7.42; Russia –
Pigs (EU), para. 7.30. In disputes involving security exceptions under Article XXI(b) of the GATT 1994 and
Article 73 of the TRIPS Agreement, previous panels have exercised discretion regarding the order of analysis
based on their consideration of the specific circumstances of the dispute, including arguments made by the
parties and other relevant provisions at issue. (See Panel Reports, Russia – Traffic in Transit, paras. 7.20-7.26;
Saudi Arabia – IPRs, paras. 7.1-7.3).
227 While not bound by the presentation of claims and arguments by the parties, the Panel notes that
the parties have taken different views on the appropriate order of analysis of the issues in this dispute. The
complainant considers that the Panel should commence with examination of the claims under the Agreement
on Safeguards and Article XIX of the GATT 1994, followed by other claims under the GATT 1994, before turning
to the United States' invocation of Article XXI(b). The United States maintains that the Panel should begin by
addressing Article XXI(b) as the invocation of this provision means that there are no findings that would assist
the DSB in making recommendations or giving rulings as to the complainant's claims. (United States' response
to Panel question Nos. 21-23).
228 The Panel is also mindful that there may be circumstances in disputes where more than one covered
agreement applies and it is appropriate to begin the analysis with provisions from an agreement that "deals
specifically, and in detail" with the measures at issue. (See Appellate Body Reports, Brazil – Desiccated
Coconut, pp. 12-13; Canada – Periodicals, p. 19; and EC – Bananas III, para. 204; Panel Reports, Australia –
Tobacco Plain Packaging, paras. 7.76-7.79; US – Customs Bond Directive, paras. 7.170-7.171).

submitted by the parties in relation to the measures at issue beginning with the parties'
disagreement as to the meaning of the terms of Article XXI(b) of the GATT 1994 interpreted in
accordance with Article 3.2 of the DSU and t he customary rules of interpretation of public
international law. On the basis of this assessment, the Panel will provide its findings and
recommendations in accordance with the DSU.
7.3 Terms of reference and measures at issue
Introduction
In this section, the Panel will examine issues raised by the parties relating to Article 6.2 of
the DSU, which provides in relevant part:
The request for the establishment of a panel shall be made in writing. It shall 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.
The parties have raised a number of issues relating to the requirements of Article 6.2 of the
DSU and the Panel's terms of reference.229 Specifically, China argues that the Panel's terms of
reference include the additional import duties imposed on derivative steel and aluminium products
after the Panel's establishment and the country -specific exemptions granted from those duti es.230
The United States argues that the duties on derivative products did not exist at the time of the
Panel's establishment and thus fall outside the Panel's terms of reference.231
The Panel will accordingly examine whether it can make findings and recom mendations on
the duties applicable to derivative steel and aluminium products and the related exemptions.
Additional duties on derivative steel and aluminium products and the corresponding
country exemptions
On 24 January 2020, the US President issued Presidential Proclamation 9980 under the
authority granted by Section 232.232 Presidential Proclamation 9980 introduced additional duties of
25% on derivative steel products and 10% on derivative aluminium products with effect from
8 February 2020.233 This Presidential Proclamation also exempted from these duties: (a) derivative
steel products from Australia, Argentina, Brazil, the Republic of Korea, Canada, and Mexico; and (b)
derivative aluminium products from Australia, Argentina, Canada, and Mexico.234
China requests the Panel to include the additional duties and corresponding country
exemptions imposed by Presidential Proclamation 9980 in its terms of reference .235 According to
China, Presidential Proclamation 9980 falls within the scope of China's panel request as a related
measure that supplement s the prior measures imposed on steel and aluminium products. 236 In
particular, China considers that the duties on derivative steel and aluminium products amend the
scope of the initial import duties on steel and aluminium products by extending the initial duties to

229 In addition to the issues discussed in this section, the parties also dispute whether China's panel
request adequately identifies measures concerning the administration of the product exclusion process. As the
Panel declines to make findings on the claims concerning the administration of the product exclusion process,
the Panel does not find it necessary to further address whether measures related to those claims are within its
terms of reference. See section 7.6 below.
230 See section 2.3 above. While China initially argued that "[a]ny exclusion process that may be
established in relation to derivative steel articles … and any exclusions granted pursuant to that process" would
also fall within the Panel's terms of reference, it subsequently clarified that it was not challenging any
product-specific exclusions that may be granted in relation to the additional import duties on derivative
products. (See China's response to Panel question No. 2.a, fns 25 and 26, and China's second written
submission, para. 119, fn 71).
231 United States' response to Panel question No. 87.
232 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), pp. 5281 and 5283.
233 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), p. 5283.
234 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), p. 5283.
235 China's second written submission, para. 119; response to Panel question No. 86.
236 China's second written submission, para. 123.

derivative products.237 The United States notes that Presidential Proclamation 9980 was issued more
than a year after the establishment of the Panel, and therefore, the duties on derivative products
did not exist at the time of the Panel's establishment, were not and could not have been identified
in China's panel request, and fall outside the Panel's terms of reference.238
The Panel begins by noting that the measures within a panel's terms of reference are generally
those in existence at the time of the establishment of the panel. This does not preclude a panel, in
certain circumstances, from reviewing measures enacted or modified after its establishment, taking
into account the specific terms used in a panel request and in light of the aim of the dispute
settlement mechanism to provide a positive solution to the dispute.239 In assisting the DSB in making
its recommendations, a panel may review measures that come into existence after panel
establishment that bear a close relationship to measures described in the panel request.240 The Panel
will thus assess the relationship between the measures identified in China's panel request and the
additional duties on de rivative products imposed by Presidential Proclamation 9980, including the
corresponding exemptions set out therein.
In its panel request, China challenges the "25 percent and 10 percent of additional import
duty respectively on certain steel products and aluminum products , from all countries except
Canada, Mexico, Australia, Argentina, Korea, Brazil and the European Union ".241 China describes
these duties and exemptions as "actions on the importation of certain steel products and aluminium
products".242 China's panel request also states that the measures at issue include, but are not limited
to, a number of instruments of the United States in relation to the previously referenced actions on
the importation of certain steel and aluminium produ cts.243 Among those instruments are
Presidential Proclamations 9704 and 9705 and the Steel and Aluminium Reports.244 China's panel
request further states that it "also covers any amendments, supplements, extensions, replacement
measures, renewal measures, related measures, or implementing measures".245
The Panel notes that Presidential Proclamation 9980 explicitly refers to the Steel and
Aluminium Reports and earlier Presidential Proclamations 9704 and 9705 on aluminium and steel,
respectively, in setting out its legal basis and justification. In particular, Presidential Proclamation
9980 refers to the direction in Presidential Proclamations 9704 and 9705 to the US Secretary of
Commerce to "inform [the US President] of any circumstances that in the Secretary's opinion might
indicate the need for further action under section 232" .246 The US President decided to " adjust the
tariffs imposed by previous proclamations to apply to the derivatives of aluminum articles and steel
articles"247 specifically based on the Secretary's assessments that foreign producers of derivative
steel and aluminium products "have increased shipments of such articles to the United States to
circumvent the duties on steel and aluminum articles imposed in Presiden tial Proclamations 9704
and 9705"248 and that "imports of these derivative articles threaten to undermine the actions taken
to address the risk to the national security of the United States found in Presidential Proclamations

237 China's response to Panel question No. 87.
238 United States' response to Panel question No. 87.
239 Articles 3.7 and 11 of the DSU. See also Appellate Body Reports, US – Zeroing (Japan) (Article 21.5
– Japan), paras. 121 and 125; EC – Chicken Cuts, paras. 156-159; and Chile – Price Band System,
paras. 126-144; Panel Reports, US – Ripe Olives from Spain, para. 7.12; US – Washing Machines,
paras. 7.248-7.249; EC – Fasteners (China), para. 7.34; and Colombia – Ports of Entry, paras. 7.52-7.54.
240 See Panel Reports, US – Ripe Olives from Spain, para. 7.14; Russia – Pigs (EU), para. 7.160; US –
Australia – Salmon (Article 21.5 – Canada), para. 7.10, subpara. 27; and Japan – Film, paras. 10.8-10.9.
Similarly, previous panels and Appellate Body reports have considered (a) whether the terms of the panel
request are broad enough to cover amendments to the measures and (b) whether the measures remain in
essence the same as those identified in the panel request. Appellate Body Report, Chile – Price Band System,
paras. 135-139. See also Appellate Body Reports, US – Zeroing (EC) (Article 21.5 – EC), paras. 190-191 and
383-384; EC – Selected Customs Matters, para. 184; EC – Chicken Cuts, paras. 156-161; Panel Reports, US –
Ripe Olives from Spain, para. 7.14; Indonesia – Chicken, paras. 7.84-7.85; and US – Large Civil Aircraft
(2nd complaint) (Article 21.5 – EU), para. 7.524.
241 China's panel request, p. 1.
242 China's panel request, p. 1.
243 China's panel request, pp. 2-3.
244 China's panel request, pp. 1-2. See also section 2.2 above.
245 China's panel request, p. 3.
246 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), p. 5281.
247 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), p. 5283.
248 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), p. 5282.

9704 and 9705".249 In this respect, the measures introduced by Presidential Proclamation 9980 have
a close connection to the instruments identified in China's panel request.250
The legal basis for Presidential Proclamation 9980 is Section 232.251 Section 232 in turn
authorizes the US Pres ident, if he concurs with the findings in the US Secretary of Commerce's
reports, "to adjust the imports of [an] article and its derivatives so that such imports will not threaten
to impair the national security ".252 In Presidential Proclamation 9980, the U S President notes the
importance of stabilizing domestic capacity utilization in the steel and aluminium industries at the
levels recommended by the US Secretary of Commerce in the Steel and Aluminium Reports.253 The
US President further relies on the Secre tary's conclusion that "reducing imports of the derivative
articles … would reduce circumvention and facilitate the adjustment of imports that Proclamation
9704 and Proclamation 9705, as amended, made to increase domestic capacity utilization". 254 This
further demonstrates the connection between Presidential Proclamation 9980 on derivative products
and the earlier Presidential Proclamations 9704 and 9705 stemming from Section 232 and the Steel
and Aluminium Reports.
The duties and exemptions on derivative steel and aluminium products are also explicitly
linked to the objectives of the earlier measures taken under Section 232 identified in China's panel
request. Presidential Proclamation 9980 provides that imports of certain derivative steel and
aluminium products have significantly increased since tariffs and quotas were imposed on certain
steel and aluminium products, and that the net effect of this increase has been to "undermine the
purpose of the proclamations adjusting imports of aluminum and steel articles to remove the
threatened impairment of the national security" .255 This Proclamation states that the duties on
derivative steel and aluminium products are "necessary and appropriate to address circumvention
that is undermining the effectiveness of the adjustment of imports made in Proclamation 9704 and
Proclamation 9705".256 This confirms that Presidential Proclamation 9980 supplements Presidential
Proclamations 9704 and 9705 in pursuit of the same objectives under Section 232 based on
recommendations by the Secretary of Commerce in the Steel and Aluminium Reports.
For the foregoing reasons, the Panel concludes that Presidential Proclamation 9980 and the
actions set out therein, i.e. the imposition of duties on derivative steel and aluminium products and
corresponding exemptions, bear a close connection to the earlier measures on steel and aluminium
that are identified in China's panel request. Moreover, China's panel request was formulated so as
to encompass such supplements, extensions , or related measures. The Panel therefore finds that
these measures are within its terms of reference.
Conclusion
Based on the foregoing and in light of the specific circumstances of the presen t dispute, the
Panel finds that the additional import duties imposed on derivative steel and aluminium products
after the Panel's establishment, and the country-specific exemptions granted from those duties, are
within its terms of reference.

249 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), p. 5282.
250 The Panel also notes that Presidential Proclamation 9980 defines its product scope with reference to
the steel and aluminium articles envisaged in Presidential Proclamations 9704 and 9705. (Presidential
Proclamation 9980, (Exhibit CHN-40 and USA-225), p. 5282).
251 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), p. 5283 ("Section 232 of the Trade
Expansion Act of 1962, as amended, authorizes the President to adjust the imports of an article and its
derivatives that are being imported into the United States in such quantities or under such circumstances as to
threaten to impair the national security of the United States" (emphasis added)).
252 Section 232, (Exhibit CHN-1 and USA-1), § 1862(c)(1)(A).
253 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), pp. 5281-5282.
254 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), p. 5282.
255 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), p. 5282.
256 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225), p. 5283.

7.4 Article II:1 of the GATT 1994
Introduction
China argues that the United States' additional import duties on steel and aluminium products
are in violation of Article II:1(a) and (b) of the GATT 1994.257 In China's view, the additional duties
constitute "ordinary customs duties" under Article II:1(b) and are also effective "on importation".258
Even if they were not "ordinary customs duties", China considers that these measures would not be
covered by Article II:2, and must therefore constitute "other dutie s or charges … imposed on or in
connection with importation".259 In China's view, such "other duties or charges" would be imposed
inconsistently with Article II:1(b) because they were not recorded in the United States' Schedule of
Concessions.260 Finally, China argues that the measures impose duties in excess of those provided
for in that Schedule, as the covered products could previously enter the United States at rates
ranging from duty-free to 6.5%, and the additional import duties exceed those bound level s for all
tariff headings and subheadings covered by the measures.261
The United States has not advanced any arguments or evidence contesting the claims under
Articles II:1(a) and (b) of the GATT 1994.262
Article II:1 of the GATT 1994 provides in relevant part:
(a) Each contracting party shall accord to the commerce of the other contracting parties
treatment no less favourable than that provided for in the appropriate Part of the
appropriate Schedule annexed to this Agreement.
(b) The products described in Part I of the Schedule relating to any contracting party,
which are the products of territories of other contracting parties, shall, on their
importation into the territory to which the Schedule relates, and subject to the terms,
conditions or qualifications set forth in that Schedule, be exempt from ordinary customs
duties in excess of those set forth and provided therein. Such products shall also be
exempt from all other duties or charges of any kind imposed on or in connection with
the importation in ex cess of those imposed on the date of this Agreement or those
directly and mandatorily required to be imposed thereafter by legislation in force in the
importing territory on that date.
Additionally, the Understanding on the Interpretation of Article II:1(b) of the GATT 1994
provides in relevant part:
Members hereby agree as follows:
1. In order to ensure transparency of the legal rights and obligations deriving from
paragraph 1(b) of Article II, the nature and level of any "other duties or charges" levied
on bound tariff items, as referred to in that provision, shall be recorded in the Schedules
of concessions annexed to GATT 1994 against the tariff item to which they apply. It is
understood that such recording does not change the legal character of "other duties or
charges".

257 China's first written submission, paras. 6, 42, and 151; opening statement at the first meeting of the
Panel, para. 10; response to Panel question No. 5, paras. 25 and 32; and second written submission,
para. 129. China's arguments in this respect include the 50% additional duty in case of steel imports from
Türkiye. (See China's first written submission, para. 155). China also considers that the additional import
duties on derivative steel and aluminium products are inconsistent with Article II:1. (See China's second
written submission, paras. 130-134; responses to Panel's questions following the first meeting, Annex I; and
comments on the United States' response to Panel question No. 87, para. 26).
258 China's first written submission, paras. 151-152; second written submission, para. 129.
259 China's first written submission, para. 153.
261 China's first written submission, para. 155.
262 See United States' closing statement at the second meeting of the Panel, para. 7 (indicating that the
United States "has imposed duties on certain steel and aluminum products on a non-MFN basis and in excess
of the levels set out in its WTO Goods Schedule").

Article II:1(a) of the GATT 1994 contains a general prohibition against according treatment
less favourable to imports than that provided for in a Member's Schedule. 263 The first sentence of
Article II:1(b) prohibits the imposition of ordinary customs duties on importation in excess of those
rates set forth in a Member's Schedule. 264 The second sentence of Article II:1(b) prohibits the
imposition of other duties or charges of any kind on or in connection with importation in excess of
those imposed on the date of entry into force of the GATT 1994 (or those directly and mandatorily
required to be imposed thereafter by legislation in force on that date). 265 According to the
Understanding on the Interpretation of Article II:1(b), the nature and level of any such "other duties
or charges" must be recorded in a Member's Schedule.266
In this dispute, the complainant focuses its arguments on inconsistency with Article II:1(b)
and alleges a consequential violation of Article II:1(a).267 Prior WTO adjudicators have considered
that Article II:1(b) prohibits "a specific kind of practice that will always be inconsistent with
paragraph (a)" because application of duties in excess of what is provided for in a Member's Schedule
necessarily constitutes "less favourable" treatment within the meaning of Article II:1(a).268 Given
these considerations, the Panel will assess whether the challenged measures result in the imposition
of duties in excess of what is provided for in the United States' Schedule under Article II:1(b), and
thus accord less favourable treatment than that provided for in the Schedule in violation of
Article II:1(a).
The Panel will begin by identifying the concessions and obligations for the relevant products
in the United States' Schedule before turning to the treatment of those products under the
challenged measures, specifically concerning:
a. the additional duties of 25% on steel products and 10% on aluminium products;
b. the additional duty of 50% on steel products from Türkiye; and
c. the additional duties of 25% on derivative steel products and 10% on derivative aluminium
products.269
Additional duties on steel and aluminium products
In March 2018, the United States imposed additional duties of 25% on steel products and
10% on alumini um products. 270 The following tables identify the steel and aluminium products
covered by the additional duties and provide a comparative analysis of the United States' bound
rates and its additional duty rates in relation to those products. The United States' Schedule does
not record any "other duties or charges" with respect to the steel and aluminium products at issue.271

263 See Appellate Body Reports, Argentina – Textiles and Apparel, para. 45; Colombia – Textiles,
264 See Appellate Body Reports, India – Additional Import Duties, para. 150; Colombia – Textiles,
para. 5.35.
265 See Appellate Body Report, India – Additional Import Duties, para. 151; Panel Report,
266 See Panel Report, Dominican Republic – Safeguard Measures, para. 7.78. See also Panel Report,
Dominican Republic – Import and Sale of Cigarettes, paras. 7.84-7.90.
267 China's first written submission, para. 150.
268 Appellate Body Report, Argentina – Textiles and Apparel, paras. 45-47. See also Panel Reports, EC –
Chicken Cuts, paras. 7.64-7.65; EC – IT Products, para. 7.747.
269 See China's first written submission, paras. 6, 42, and 151-155; opening statement at the first
meeting of the Panel, para. 10; response to Panel question No. 5, paras. 25 and 32; responses to Panel's
questions following the first meeting, Annex I; and second written submission, paras. 129-134.
270 See Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10); Presidential Proclamation 9705,
(Exhibit CHN-7 and USA-9). See also sections 2.2.1.1 and 2.2.2.1 for a detailed description.
271 United States Bound Concessions at the HS 6-digit subheading level.

Table 2: Steel Products Subject to Additional Duties under Section 232
Steel Products Subject to Additional Duties

HTS Code
Rates of customs duties
Bound rates272 Additional duty
1. 7206-7215
0 +25%
2. 7216 (except
certain
subheadings)273
3. 7217-7229
4. 7301.10.00
5. 7302.10
6. 7302.40.00
7. 7302.90.00
8. 7304-7306
Source: United States Bound Concessions at the HS 6-digit subheading level; Presidential Proclamation 9705274
Table 3: Aluminium Products Subject to Additional Duties under Section 232
Aluminium Products Subject to Additional Duties

HTS Code
Rates of customs duties
Bound rates275 Additional duty
1. 7601 0-2.6%
+10%
2. 7604 1.5-5%
3. 7605 2.6-4.2%
4. 7606 2.7-6.5%
5. 7607 0-5.8%
6. 7608 0-5.7%
7. 7609 5.7%
8. 7616.99.51 2.5%276
Source: United States Bound Concessions at the HS 6-digit subheading level; Presidential Proclamation 9704277

272 Pursuant to Chapters 72 and 73 of the HTSUS, the generally applied rate for these products is also
0% for all relevant subheadings.
273 Exceptions for subheadings 7216.61.00, 7216.69.00, and 7216.91.00.
274 See Harmonized Tariff Schedule of the United States (2018) Revision 4, (Exhibit CHN-36);
United States Schedule of Concessions, (Exhibit CHN-39); and Presidential Proclamation 9705, (Exhibit CHN-7
and USA-9). The Panel additionally relied on data from the WTO's Consolidated Tariff Schedule (CTS) Database
and online versions of the United States' harmonized tariff schedule, https://hts.usitc.gov/current (accessed
22 June 2022).
275 Pursuant to Chapter 76 of the HTSUS, the generally applied rate for the relevant subheadings are as
follows: for HTS Code 7601, 0-2.6%; for HTS Code 7604, 1.5-5%; for HTS Code 7605, 2.6-4.2%; for HTS
Code 7606, 2.7-6.5%; for HTS Code 7607, 0-5.8%; for HTS Code 7608, 5.7%; for HTS Code 7609, 5.7%; and
for HTS Code 7616.99.51, 2.5%. In respect of HTS Code 7608, tariff lines 7608.10.00 and 7608.20.000, as
described in the United States' Schedule, are subdivided into two categories of (A) and (B). The former applies
to products certified for use in civil aircraft, for which a bound rate of zero applies. The latter applies to all
other products, for which a bound rate of 5.7% applies. The HTSUS does not draw a distinction between (A)
and (B) by simply providing for a rate of 5.7%.
276 In WTO document WT/Let/493, the heading is elaborated to 7616.99.50 ("Other"), for which the
duty rate is listed as 2.5%. In the HTSUS, this heading is elaborated to 7616.99.51 ("Other"), for which the
duty rate is listed as 2.5%. China lists this figure as 0-2.5%, which appears to be an error. (See China's first
written submission, para. 155).

The Panel recalls that the first sentence of Article II:1(b) prohibits the imposition of ordinary
customs duties on importation in excess of those rates set forth in a Member's Schedule, whereas
the second sentence prohibits the imposition of all other duties or charges of any kind on or in
connection with importation except as recorded in a Member's Schedule. To fall within the scope of
Article II:1(b), the additional duties must therefore qualify as either "ordinary customs duties" under
the first sentence, or "other duties or charges" under the second sentence.
The term "ordinary customs duties" is not defined in the GATT 1994.278 However, previous
WTO panels and the Appellate Body have highlighted several factors that are relevant to this
characterization. First, the word "ordinary" has been defined as referring to duties "of the usual kind,
not singular or exceptional"279 or "occurring in regular custom or practice".280 Second, the "customs
dut[y]" must be imposed "on [the product's] importation"; in other words, the obligation to pay
must accrue at the moment of or by virtue of the product's importation into the Member's customs
territory.281 Third, neither the form which the duty takes, nor the basis on which it is calculated, will
necessarily be dispositive.282 Rather, panels have examined duties by their design and structure 283
and found certain duties and charges, based on their particular features, not to constitute "ordinary
customs duties" in the sense of Article II:1(b).284 The term "all other duties or charges of any kind"
has been interpreted broadly as a residual category, which covers all duties or charges on or in
connection with importation that are neither "or dinary customs duties" nor the duties or charges
expressly provided for in Article II:2 of the GATT 1994.285
In the present dispute, China argues that the additional duties of 25% on steel products and
10% on aluminium products constitute "ordinary customs duties" inconsistent with the first sentence
of Article II:1(b) of the GATT 1994. In particular, China highlights the following features:
a. the additional duties are effective upon the importation of those steel and aluminium
products into the United States286;
b. the additional duties are charged at an ad valorem rate287; and
c. the additional duties are explicitly defined as "ordinary customs dut[ies]" in the relevant
Presidential Proclamations.288

277 See Harmonized Tariff Schedule of the United States (2018) Revision 4, (Exhibit CHN-36);
United States Schedule of Concessions, (Exhibit CHN-39); and Presidential Proclamation 9704, (Exhibit CHN-6
and USA-10). The Panel additionally relied on data from the WTO's CTS Database and online versions of the
United States' harmonized tariff schedule, https://hts.usitc.gov/current (accessed 22 June 2022).
278 See Appellate Body Report, Chile – Price Band System, para. 265.
279 See Panel Report, Chile – Price Band System, para. 7.51.
280 Panel Report, Dominican Republic – Safeguard Measures, para. 7.83.
281 Appellate Body Report, China – Auto Parts, para. 158. In Dominican Republic – Safeguard Measures,
the panel thus noted that: "the expression 'ordinary customs duties' in Article II:1(b) of the GATT 1994 refers
to duties collected at the border which constitute 'customs duties' in the strict sense of the term" and "this
expression does not cover all possible extraordinary or exceptional duties collected in customs." (Panel Report,
282 Panel Report, Dominican Republic – Safeguard Measures, para. 7.84 (referring to Appellate Body
Report, Chile – Price Band System, paras. 216 and 271-278). See also Appellate Body Reports, China – Auto
Parts, para. 162 (noting that "the time at which a charge is collected or paid is not decisive"); EC – Bananas III
(Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US), para. 416 (noting in passing that "it is
unusual that a tariff concession inscribed in a Member's Schedule would be limited in time").
283 See Panel Report, Dominican Republic – Safeguard Measures, para. 7.85 (noting that to determine
whether the duties are "ordinary customs duties", panels "must consider the design and structure of the
measures concerned"). See also Appellate Body Report, Argentina – Textiles and Apparel, para. 55;
Panel Report, Russia – Tariff Treatment, para. 7.92.
284 See e.g. Appellate Body Reports, Peru – Agricultural Products, paras. 5.70-5.76; Chile – Price Band
System (Article 21.5 – Argentina), paras. 167 and 171; Panel Reports, Peru – Agricultural Products,
paras. 7.373-7.374; Dominican Republic – Import and Sale of Cigarettes, para. 7.115.
285 Panel Reports, Dominican Republic – Import and Sale of Cigarettes, para. 7.113; Dominican Republic
– Safeguard Measures, para. 7.79. See also Appellate Body Report, India – Additional Import Duties,
para. 157.
286 China's first written submission, para. 152.
287 China's first written submission, para. 151.
288 China's first written submission, para. 151.

In the alternative, China argues that even if th ey were not "ordinary customs duties", the
additional duties would not be covered by Article II:2 of the GATT 1994, and must therefore
constitute "other duties or charges … imposed on or in connection with importation" under the second
sentence of Article II:1(b).289 China contends that such "other duties or charges" would be imposed
inconsistently with Article II:1(b) because they were not recorded in the United States' Schedule of
Concessions.290
In the Panel's view, the additional duties at issue bear cert ain features which suggest that
they may best be characterized as "ordinary customs duties" for the purposes of Article II:1(b). In
particular, the additional duties are: (a) levied on all imports of the covered steel and aluminium
products; (b) calculated on an ad valorem basis; (c) described as "tariffs" and "ordinary customs
dut[ies]" in the relevant Presidential Proclamations; and (d) operationalized as "ordinary customs
dut[ies]" and inscribed in the "Rates of Duty – General" column of the United States' tariff
schedule.291 These duties are also clearly applicable to products "on their importation into the
territory" of the United States in the sense of Article II:1(b). Moreover, the United States has not
contested China's characterization of the duties under Article II:1(b), but rather accepts that it has
imposed duties "in excess of the levels set out in its WTO Goods Schedule".292 Accordingly, the Panel
considers that the additional duties are "ordinary customs duties" under the first sentence of
Article II:1(b).
However, the Panel is cognizant that the additional duties also bear other features which
reflect the particular process under Section 232 through which they were imposed and maintained.
First, the additional duties were not inscribed through an amendment or replacement of the existing
MFN tariff, but rather through inscription in subchapter III of chapter 99 of the HTSUS, titled
"Temporary Modifications Established Pursuant to Trade Legislation".293 As such, the duties expressly
apply "in addition" to any pre-existing tariffs.294 Second, although the additional duties are generally
applicable on an MFN basis, they are subject to a number of country exemptions. 295 Finally, while
the additional duties are not expressly imposed for a temporary period, certain aspects of their
implementation suggest that they may not be intended as permanent adjustments to the MFN tariff
rate. These include the aforementioned inscription in subchapter III of chapter 99, as well as the
stipulated requirement in the relevant Presidential Proclamations that "[t]he Secretary shall continue
to monitor" these duties.296 In the circumstances of this dispute and mindful of these other features,
the Panel will also consider whether the additional duties as "other duties or charges" would be
inconsistent with the second sentence of Article II:1(b).
As "ordinary customs duties" under Article II:1(b), it is evident that the additional duties of
25% on steel products and 10% on aluminium products exceed the United States' bound rates of
0% and 0-6.5% on steel and aluminium products respectively.297 These products are therefore not
exempt from ordinary customs duties in excess of those set forth in the United States' Schedule, in
a manner inconsistent with the first sentence of Article II:1(b). Moreover, the United States'
Schedule does not record any "other duties or charges" with respect to the s teel and aluminium
products at issue.298 Even if considered to be "other duties or charges", the additional duties would

289 China's first written submission, para. 153.
291 See Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10); Presidential Proclamation 9705,
(Exhibit CHN-7 and USA-9).
292 See United States' closing statement at the second meeting of the Panel, para. 7.
293 See Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), Annex; Presidential Proclamation
9705, (Exhibit CHN-7 and USA-9), Annex.
294 See Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11621; Presidential
Proclamation 9705, (Exhibit CHN-7 and USA-9), p. 11627 (stating that the duties apply "in addition to any
other duties, fees, exactions or charges applicable" to the imported articles). (emphasis added)
295 See sections 2.2.1.2 and 2.2.2.2 for a detailed description. See also Presidential Proclamation 9704,
(Exhibit CHN-6 and USA-10), p. 11620; Presidential Proclamation 9705, (Exhibit CHN-7 and USA-9), p. 11626.
See also Presidential Proclamation 9710, (Exhibit CHN-8 and USA-12); Presidential Proclamation 9711, (Exhibit
CHN-9 and USA-11); Presidential Proclamation 9739, (Exhibit CHN-10 and USA-14); Presidential Proclamation
9740, (Exhibit CHN-11 and USA-13); Presidential Proclamation 9758, (Exhibit CHN-12 and USA-16); and
Presidential Proclamation 9759, (Exhibit CHN-13 and USA-15). These will be elaborated in more detail in the
context of China's claim under Article I:1 of the GATT 1994.
296 See Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10); Presidential Proclamation 9705,
(Exhibit CHN-7 and USA-9).
297 See para. 7.30 above.
298 United States Bound Concessions at the HS 6-digit subheading level.

therefore exceed those imposed on the entry into force of the GATT 1994 or directly and mandatorily
required to be imposed thereafter, i n a manner inconsistent with the second sentence of
Article II:1(b).
Accordingly, the Panel considers that the additional duties are inconsistent with the first
sentence of Article II:1(b) as "ordinary customs duties" exceeding the United States' bound rat es
for the relevant products. Even if the additional duties were considered "other duties or charges",
the Panel considers that these duties would also be inconsistent with the second sentence of
Article II:1(b). On either basis, the additional duties on s teel and aluminium products would
therefore be inconsistent with Article II:1(b) of the GATT 1994. As the additional duties are
inconsistent with Article II:1(b) by exceeding the levels in the United States' Schedule, the
United States has necessarily acco rded treatment less favourable than that provided for in its
Schedule. The Panel therefore concludes that the additional duties are also inconsistent with
Article II:1(a) of the GATT 1994.
Additional duty on steel products from Türkiye
In August 2018, an additional duty of 50% was imposed on steel products from Türkiye.299
As this duty is applicable to the same steel products as listed in Table 2 above , the United States'
bound rates in respect of those products have already been set out in that Table.300
As previously noted, China argues that the additional duties on steel and aluminium products
constitute "ordinary customs duties" under the first sentence of Article II:1(b), and in the alternative,
"other duties or charges" under the second sentence of Ar ticle II:1(b).301 These arguments include
the additional duty of 50% on steel products in the case of Türkiye.302 China further argues that
covered products could previously enter the United States at rates ranging from duty-free to 6.5%,
and for all tariff headings and subheadings covered by the measures, the additional import duties of
50% in the case of steel products from Türkiye exceed those bound levels.303
In the Panel's view, the additional duty on steel products from Türkiye raises similar issues in
terms of its characterization as either an "ordinary customs dut[y]" or "other dut[y] or charge[]"
under Article II:1(b). For reasons similar to those outlined above 304, the Panel considers that the
additional duty is an "ordinary customs dut[y]" under the first sentence of Article II:1(b). In
particular, the additional duty is: (a) levied on all imports of the covered steel products from Türkiye;
(b) calculated on an ad valorem basis; (c) described as a "tariff" or "ordinary customs duty" in the
relevant Pr esidential Proclamations; and (d) operationalized as an "ordinary customs duty" and
inscribed in the "Rates of Duty – General" column of the United States' tariff schedule.305
As an "ordinary customs dut[y]", it is evident that the additional duty of 50% on steel products
from Türkiye exceeds the United States' bound rates for the steel products at issue (0%), in a
manner inconsistent with the first sentence of Article II:1(b). Moreover, even if considered to be
"other duties or charges" under the second sentence306, the United States' Schedule does not record
any "other duties or charges" with respect to the steel products at issue. 307 On either basis, the
additional duty on steel products from Türkiye would therefore be inconsistent with Article II:1(b)
of the GATT 1994. As the additional duty on steel products from Türkiye exceeds the levels set out
in the United States' Schedule, it follows that the United States has accorded treatment less
favourable than that provided for in its Schedule. The Panel therefore concludes that the additional
duty on steel products from Türkiye is also inconsistent with Article II:1(a) of the GATT 1994.

299 See Presidential Proclamation 9772, (Exhibit CHN-14). See also section 2.2.1.1 for a detailed
description.
300 See para. 7.30 above.
301 See paras. 7.33-7.34 above.
302 See China's first written submission, para. 155.
303 China's first written submission, para. 155.
304 See para. 7.35 above.
305 See Presidential Proclamation 9772, (Exhibit CHN-14).
306 These considerations may be relevant in light of other features of the additional duty on steel
products from Türkiye, such as: (a) being inscribed in subchapter III of chapter 99 of the HTSUS titled
"Temporary Modifications Established Pursuant to Trade Legislation"; (b) applying "in addition" to any
pre-existing duties; and (c) solely applying to Türkiye. (See Presidential Proclamation 9772, (Exhibit CHN-14)).
307 United States Bound Concessions at the HS 6-digit subheading level.

Additional duties on derivative steel and aluminium products
In January 2020, the United States announced additional duties of 25% on derivative steel
and 10% on derivative aluminium products.308 The following tables identify the derivative steel and
aluminium products covered by these additional duties, and provide a comparative analysis of the
United States' bound rates and its additional duty rates in relation to those products. As with the
other steel and aluminium products, the United States' Schedule similarly does not record any "other
duties or charges" with respect to these products.309
Table 4: Derivative Steel Products Subject to Additional Duties under Section 232
Derivative Steel Products Subject to Additional Duties
 Rates of customs duties
# HTS Code Bound rates310 Additional duty
1. 7317.00.30
0-2.5% +25%
2. 7317.00.5503
3. 7317.00.5505
4. 7317.00.5507
5. 7317.00.5560
6. 7317.00.5580
7. 7317.00.6560
8. 8708.10.30
9. 8708.29.21
Source: United States Bound Concessions at the HS 6-digit subheading level; Presidential Proclamation 9980311
Table 5: Derivative Aluminium Products Subject to Additional Duties under Section 232
Derivative Aluminium Products Subject to Additional Duties
 Rates of customs duties
# HTS Code Bound rates312 Additional duty
1. 7614.10.50
2.5-5.7% +10%
2. 7614.90.20
3. 7614.90.40
4. 7614.90.50
5. 8708.10.30
6. 8708.29.21
Source: United States Bound Concessions at the HS 6-digit subheading level; Presidential Proclamation 9980313

308 See Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225).
309 United States Bound Concessions at the HS 6-digit subheading level.
310 Pursuant to Chapters 73 and 87 of the HTSUS, the generally applied rate for these products is
also 0-2.5% for all relevant subheadings.
311 See Harmonized Tariff Schedule of the United States (2020) Revision 5, (Exhibit CHN-47);
United States Schedule of Concessions pertaining to duties on derivative articles, (Exhibit CHN-48); and
Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225). The Panel additionally relied on data from the
WTO's CTS Database and online versions of the United States' harmonized tariff schedule,
https://hts.usitc.gov/current (accessed 22 June 2022).
312 Pursuant to Chapters 76 and 87 of the HTSUS, the generally applied rate for these products is 0-
5.7% for all relevant subheadings. In respect of HTS Code 8708.29.21, WTO document WT/Let/1098 lists this
sub-heading 8708.29.21 at a bound duty rate of 2.5%. In the HTSUS, sub-heading 8708.29.21 is duty free.
313 See Harmonized Tariff Schedule of the United States (2020) Revision 5, (Exhibit CHN-47);
United States Schedule of Concessions pertaining to duties on derivative articles, (Exhibit CHN-48); and
Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225). The Panel additionally relied on data from the
WTO's CTS Database and online versions of the United States' harmonized tariff schedule,
https://hts.usitc.gov/current (accessed 22 June 2022).

China submits that the additional duties on derivative steel and aluminium products constitute
"ordinary customs duties", as they were also imposed on ad valorem basis and are classified as
ordinary customs duties in the HTSUS and Presidential Proclamation 9980.314 As in respect of the
other duties, China argues that the additional duties on derivative products are effective "on
importation" and exceed the bound rates set out in the United States' Schedule.315 Finally, China
similarly argues that, even if the Panel were to conclude that they do not constitute "ordinary
customs duties", these duties would constitute "other duties or charges" prohibited by
Article II:1(b).316
In the Panel's view, the additional duties on derivative steel and aluminium products ra ise
similar issues in terms of their characterization as either "ordinary customs duties" or "other duties
or charges" under Article II:1(b). For reasons similar to those outlined above317, the Panel considers
that the additional duties on derivative produc ts are "ordinary customs duties" under the first
sentence of Article II:1(b). In particular, the additional duties are: (a) levied on all imports of the
covered derivative steel and aluminium products; (b) calculated on an ad valorem basis; (c)
described as "tariffs" or "ordinary customs dut[ies]" in the relevant Presidential Proclamations; and
(d) operationalized as "ordinary customs dut[ies]" and inscribed in the "Rates of Duty – General"
column of the United States' tariff schedule.318
As "ordinary customs duties", it is evident that the additional duties of 25% on derivative
steel products and 10% on derivative aluminium products exceed the United States' bound rates,
which range from 0-2.5% and 2.5-5.7% for the derivative aluminium and steel products at issue
respectively, in a manner inconsistent with the first sentence of Article II:1(b).319 Moreover, even if
considered to be "other duties or charges" under the second sentence320, the United States' Schedule
does not record any "other duties or charges" with respect to the steel and aluminium products at
issue.321 On either basis, the additional duties on derivative products would therefore be inconsistent
with Article II:1(b) of the GATT 1994. As the additional duties on derivative st eel and aluminium
products exceed the levels set on in the United States' Schedule, it follows that the United States
has accorded treatment less favourable than that provided for in its Schedule. The Panel therefore
concludes that the additional duties on derivative steel and aluminium products are also inconsistent
with Article II:1(a) of the GATT 1994.
Conclusion
Regarding China's claims under Article II of the GATT 1994, the Panel concludes that:
a. the additional duties of 25% on steel products and 10% on aluminium products do not
accord the treatment provided for in the United States' Schedule, contrary to
Article II:1(b) and Article II:1(a) of the GATT 1994;
b. the additional duty of 50% on steel products from Türkiye does not accord the treatment
provided for in the United States' Schedule, contrary to Article II:1(b) and Article II:1(a)
of the GATT 1994; and
c. the additional duties of 25% on derivative steel products and 10% on derivative aluminium
products do not accord the treatment provided for in the United States' Schedule, contrary
to Article II:1(b) and Article II:1(a) of the GATT 1994.

314 China's second written submission, paras. 130-131.
315 China's second written submission, para. 133.
316 China's second written submission, para. 134.
317 See para. 7.35 above.
318 See Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225).
319 See para. 7.43 above.
320 These considerations may be relevant in light of other features of the additional duties on derivative
steel and aluminium products, such as: (a) being inscribed in subchapter III of chapter 99 of the HTSUS titled
"Temporary Modifications Established Pursuant to Trade Legislation"; (b) applying "in addition" to any
pre-existing duties; and (c) being subject to exemptions for certain countries. (See Presidential Proclamation
9980, (Exhibit CHN-40 and USA-225)).
321 United States Bound Concessions at the HS 6-digit subheading level.

7.5 Article I:1 of the GATT 1994
Introduction
China argues that the United States' country-specific exemptions to the Section 232 measures
and related quota agreements are inconsistent with Article I:1 of the GATT 1994.322 In China's view,
the country exemptions have been granted from "customs duties and charges of any kind" under
Article I:1.323 China also considers that the imported products at issue are "like products", as where
measures explicitly discriminate on the basis of origin, "likeness" may be presumed.324 Finally, China
considers that the United States has created a certain category of Members, who can choose to
negotiate unconditional exemptions or exemptions in exchange for quota agreements.325 As no other
Members have been permitted to maximize competitive opportunitie s in the same manner, China
considers that this "advantage" has not been granted "immediately" and "unconditionally" to all
other Members, in violation of Article I:1 of the GATT 1994.326
The United States has not advanced any arguments or evidence contesting the complainant's
claim under Article I:1 of the GATT 1994.327
Article I:1 of the GATT 1994 provides:
1. With respect to customs duties and charges of any kind imposed on or in connection
with importation or exportation or imposed on the international transfer of payments
for imports or exports, and with respect to the method of levying such duties and
charges, and with respect to all rules and formalities in connection with importation and
exportation, and with respect to all matters refe rred to in paragraphs 2 and 4 of
Article III,* any advantage, favour, privilege or immunity granted by any Member to
any product originating in or destined for any other country shall be accorded
immediately and unconditionally to the like product originat ing in or destined for the
territories of all other [Members].
Article I:1 of the GATT 1994 prohibits, with respect to measures falling within its scope of
application, discrimination among like products originating in or destined for different countries.328
The obligation to accord most-favoured-nation treatment as set out in Article I:1 of the GATT 1994
has been understood to require equality of competitive opportunities for like imported products from
any Member.329
The Panel will proceed by exa mining the challenged measures under Article I:1 of the
GATT 1994, specifically concerning: (a) the country exemptions for steel and aluminium products
and (b) the country exemptions for derivative steel and aluminium products.330

322 China's first written submission, para. 156. See also China's second written submission,
paras. 136-137; responses to Panel's questions following the first meeting, Annex I.
323 China's first written submission, para. 158. China further considers that the quota agreements
entered into by Argentina, Brazil, and the Republic of Korea constitute "rules and formalities in connection with
importation". (Ibid).
324 China's first written submission, para. 159.
325 China's first written submission, paras. 160-163.
326 China's first written submission, paras. 163-164.
327 See United States' closing statement at the second meeting of the Panel, para. 7 (the United States
accepting that it "has imposed duties on certain steel and aluminum products on a non-MFN basis and in
excess of the levels set out in its WTO Goods Schedule").
328 Appellate Body Report, Canada – Autos, para. 84.
329 See Appellate Body Report, EC – Seal Products, paras. 5.86-5.87. Under Article I:1 of the
GATT 1994, a complainant must demonstrate that: (a) the measure at issue falls within the scope of
Article I:1; (b) the imported products at issue are "like"; (c) the measure confers an "advantage, favour,
privilege or immunity" on any product originating in the territory of any country; and (d) the advantage,
favour, privilege or immunity granted is not extended "immediately" and "unconditionally" to like products
originating in the territory of all Members. (See Appellate Body Report, EC – Seal Products, para. 5.86).
330 See China's first written submission, paras. 156-164; second written submission, paras. 136-137;
and responses to Panel's questions following the first meeting, Annex I.

Country exemptions for steel and aluminium products
As described in greater detail above331, in March 2018, the United States imposed additional
import duties of 25% on steel products and 10% on aluminium products.332 At that time, Australia,
Argentina, Brazil, and the Republic of Korea were temporarily exempted from the additional duties
on both steel and aluminium products. 333 By May 2018, the United States had agreed to various
"satisfactory alternative means" with these countries, including: (a) exemptions for steel and
aluminium p roducts from Australia; and (b) exemptions for steel and aluminium products from
Argentina, as well as steel products from Brazil and the Republic of Korea , including through the
alternative of import quotas. 334 In China's view, through the creation of thes e country -specific
exemptions, the United States has modified the conditions of competition to the detriment of steel
and aluminium products imported from all Members aside from Australia, Argentina, Brazil, and the
Republic of Korea, thus violating Article I:1 of the GATT 1994.335
The Panel recalls that the exemptions in question relate to the additional duties on steel and
aluminium products, which have been found under Article II:1(b) of the GATT 1994 to constitute
"ordinary customs duties" applicable on importation into the territory of the United States.336 As
such, they also relate to "customs duties and charges" connected with importation falling within the
scope of Article I:1 of the GATT 1994.337
By design, the country exemptions exclude steel and alu minium products of certain origins
from the application of the additional duties, conferring differential treatment to exempted products
in comparison to those subject to the duties. Furthermore, it is undisputed that the additional duties
apply to all qua lifying products imported into the United States and that the relevant country
exemptions apply to products from select countries (i.e. Australia, Argentina, Brazil, and the Republic
of Korea) solely on the basis of origin. 338 The United States does not contest that the measures
exempt certain products based exclusively on origin contrary to the obligation to accord
most-favoured-nation treatment under Article I:1.339 Therefore, with respect to the imposition of
customs duties, the country exemptions accord an "advantage"340 to steel and aluminium products
from the exempted countries that is not accorded immediately and unconditionally to "like
products"341 originating in non -exempted countries. The Panel thus concludes that, by granting

331 See section 2.2 above.
332 See Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10); Presidential Proclamation 9705,
(Exhibit CHN-7 and USA-9).
333 See Presidential Proclamation 9710, (Exhibit CHN-8 and USA-12); Presidential Proclamation 9711,
(Exhibit CHN-9 and USA-11).
334 See Presidential Proclamation 9739, (Exhibit CHN-10 and USA-14); Presidential Proclamation 9740,
(Exhibit CHN-11 and USA-13); Presidential Proclamation 9758, (Exhibit CHN-12 and USA-16); and Presidential
Proclamation 9759, (Exhibit CHN-13 and USA-15). These exemptions were extended based on the
United States' "security relationship" with these Members. (Ibid).
335 China's first written submission, paras. 160-164.
336 Moreover, even if not considered to qualify as "ordinary customs duties", the additional duties would
in any event be inconsistent with the second sentence of Article II:1(b) of the GATT 1994 as "other duties or
charges". See section 7.4 above.
337 Previous panels have found exemptions from import duties to fall within the scope of Article I:1 of
the GATT 1994. (See e.g. Panel Reports, Canada – Autos, para. 10.16; Indonesia – Autos, paras. 7.3-7.5).
338 See sections 2.2.1.2 and 2.2.2.2 above. The Panel notes that a "presumption of likeness" has been
applied in prior disputes in situations where the only distinguishing factor under the challenged measure was
the origin of the products. These previous disputes suggest that, where a measure makes distinctions
exclusively on the basis of origin, it will typically not be necessary to conduct a detailed analysis of "likeness" of
the relevant products. (See Panel Report, Russia – Railway Equipment, paras. 7.897-7.899; see also
Panel Reports, Colombia – Ports of Entry, paras. 7.355-7.356; US – Poultry (China), paras. 7.424-7.432).
339 See United States' closing statement at the second meeting of the Panel, para. 7 (accepting that it
has imposed duties on certain steel and aluminium products "on a non-MFN basis").
340 See Appellate Body Report, Canada – Autos, para. 79; Panel Reports, EC – Bananas III, para. 7.239;
EC – Seal Products, para. 7.595. Previous panels have found country exemptions conferring duty-free
treatment to constitute an "advantage" under Article I:1. (See Panel Report, EC – Bananas III (Article 21.5 –
Ecuador II), paras. 7.152-7.153. See also Appellate Body Report, EC – Bananas III (Article 21.5 – Ecuador II) /
EC – Bananas III (Article 21.5 – US), para. 353).
341 See fn 338 above. In the specific circumstances of this dispute, including the lack of any rebuttal by
the United States, the Panel considers that the challenged measures apply to "like products" within the
meaning of Article I:1 of the GATT 1994, without the need to conduct a detailed "likeness" analysis.

country exemptions from the additional duties to Australia, Argentina, Brazil, and the Republic of
Korea, the United States acted inconsistently with Article I:1 of the GATT 1994.
In the context of its claim under Article I:1, China also challenges the quota agreements with
Argentina, Brazil, and the Republic of Korea , to the extent that they afford an alternative to the
additional duties for the exempted countries. 342 The Panel notes that such quotas relate solely to
countries that are exempted from the additional dut ies, and the existence of such quotas does not
negate the fact that the products to which they apply are exempted from the additional duties. 343
Given the foregoing finding on the advantage accorded by the exemptions, the Panel does not
consider it necessary for the purposes of this dispute to determine whether any particular alternative
treatment of exempted products from Argentina, Brazil, and the Republic of Korea, including under
any import quota, would constitute a distinct violation of Article I:1 of the GATT 1994.
Country exemptions for derivative steel and aluminium products
In January 2020, the United States announced additional duties of 25% on derivative steel
and 10% on derivative aluminium products. It also announced the following exemptions from these
duties: (a) exemptions for derivative steel products from Australia, Argentina, Brazil, the Republic
of Korea, Canada, and Mexico; and (b) exemptions for derivative aluminium products from Australia,
Argentina, Canada, and Mexico. 344 In China's view, by exempting Argentina, Australia, Brazil, the
Republic of Korea, Canada, and Mexico from the additional duties on derivative aluminium and/or
steel products, the United States has conferred an advantage on products originating within tho se
Members that it has failed to accord to imports of like derivative products from all other Members,
including China.345
The Panel has previously found that the additional duties on derivative products qualify as
"ordinary customs duties" under Article II:1(b) of the GATT 1994, and thus similarly considers that
the country exemptions from these duties relate to "customs duties and charges" in the sense of
Article I:1 of the GATT 1994.346 It is also undisputed that these country exemptions apply to products
from select countries (i.e. Australia, Argentina, Brazil, the Republic of Korea, Canada, and Mexico)
exclusively on the basis of origin. 347 Therefore, with respect to the imposition of customs duties,
these country exemptions accord an "advantage" to steel and aluminium products from the
exempted countries that is not accorded immediately and unconditionally to "like products"
originating in non -exempted countries. 348 The Panel thus concludes that, by granting country
exemptions from the additional duties on derivative products to Australia, Argentina, Brazil, the
Republic of Korea, Canada, and Mexico, the United States acted inconsistently with Article I:1 of the
GATT 1994.
Conclusion
Regarding China's claims under Article I of the GATT 1994, the Panel concludes that:

342 See China's first written submission, paras. 156 (referring to the country-specific exemptions and
"related quota agreements") and 163 (referring to the United States negotiating either "unconditional
exemptions" or "exemptions in exchange for quota agreements"). The Panel notes that China has clarified that
it is not challenging any other conditions which may have been imposed by the United States on these
Members as an alternative to the additional import duties on steel and aluminium products, other than the
quota agreements. (See China's response to Panel question No. 1).
343 The Panel further notes that all the "satisfactory alternative means", regardless of their specific form,
were extended by the United States on the basis of their "security relationship" with the exempted countries
and based on the determination that "imports from these countries [would] no longer threaten to impair the
national security". (See Presidential Proclamation 9710, (Exhibit CHN-8 and USA-12); Presidential Proclamation
9711, (Exhibit CHN-9 and USA-11); Presidential Proclamation 9739, (Exhibit CHN-10 and USA-14); Presidential
Proclamation 9740, (Exhibit CHN-11 and USA-13); Presidential Proclamation 9758, (Exhibit CHN-12 and USA-
16); and Presidential Proclamation 9759, (Exhibit CHN-13 and USA-15)).
344 Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225).
345 China's second written submission, para. 137. See also China's response to Panel question Nos. 2,
para. 8, and No. 86, para. 23; and comments on the United States' response to Panel question No. 87,
para. 26.
346 See sections 7.4.4 and 7.4.5 above. See also para. 7.54 above.
347 See para. 7.55 above.
348 See fns 338 and 340.

a. the country exemptions for steel and aluminium products confer an advantage to products
from Australia, Argentina, Brazil, and the Republic of Korea that has not been accorded
immediately and unconditionally to like products from all other Members, in a manner
inconsistent with Article I:1 of the GATT 1994; and
b. the country exemptions for derivative steel and aluminium products confer an advantage
to products from Australia, Argentina, Brazil, the Republic of Korea, Canada, and Mexico
that has not been accorded immediately and unconditionally to like products from all other
Members, in a manner inconsistent with Article I:1 of the GATT 1994.
7.6 Article X:3 of the GATT 1994
China argues that the United States' administration of the product exclusion process, through
which relief from the additional duties on steel and aluminium products can be sought, is not
consistent with Article X:3(a) of the GATT 1994.349 China notes that the product exclusion process
permits individuals and organi zations in the United States, including US producers, to object to
exclusion requests submitted by other US producers. China considers that allowing interested parties
to submit objections to exclusion requests injects a significant risk of partiality in their adjudication.
China further contends that this risk has been reali zed as product exclusions requests opposed by
US steel and aluminium producers are rejected.350 According to China, the differential treatment of
exclusion requests where an objection is filed does no t meet the requirements of Article X:3(a).351
The United States has not advanced any arguments or evidence contesting China's claim under
Article X:3(a) of the GATT 1994.
The Panel recalls its findings of inconsistency in relation to the additional duties on steel and
aluminium under the GATT 1994. The Panel considers that the findings of inconsistency under other
provisions of the GATT 1994 are sufficient, in the circumstances of the present dispute, to assist the
DSB in making the recommendations or in giving the rulings provided for in the covered agreements
as required under the DSU.352 In light of these findings, the Panel does not consider it necessary to
make findings on China's claims relating to the administration of the process for excluding products
from duties that have already been found inconsistent with other obligations under the GATT 1994.
The Panel thus declines to make findings regarding the claims under Article X:3(a) of the GATT 1994.
7.7 Article XIX of the GATT 1994 and the Agreement on Safeguards
Introduction
China claims that certain measures at issue are safeguard measures and are inconsistent with
certain obligations under Article XIX of the GATT 1994 and the Agreement on Safeguards. The
United States disputes the ap plicability of Article XIX of the GATT 1994 and the Agreement on
Safeguards to the measures at issue and additionally argues that Article XXI of the GATT 1994 is a
defence to the complainant's claims under Article XIX of the GATT 1994 and the Agreement on
Safeguards.
The Panel will first address the parties' disagreement as to the applicability of Article XIX of
the GATT 1994 and the Agreement on Safeguards to the measures at issue. In doing so, the Panel
will address specific issues of interpretation conte sted by the parties in accordance with Article 3.2
of the DSU and customary rules of interpretation of public international law. The Panel will then
assess the evidence and arguments submitted by the parties in relation to the relevant measures at

349 China's response to Panel question No. 2.b and 2.d; see also first written submission, para. 172.
350 China's first written submission, paras. 172-173 (referring to Congressional Research Service,
Section 232 Investigations: Overview and Issues for Congress (2 April 2019), (Exhibit CHN-23), p. 10).
351 China's first written submission, para. 174.
352 See e.g. Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program,
paras. 5.189-5.190 and 5.194; US – Upland Cotton, para. 732. The Panel further notes various instances in
which previous panels have declined to make findings under Article X:3 of the GATT 1994 based on other
findings of inconsistency concerning the underlying measure being administered, including duties in excess of
the bound rates in a Member's Schedule of Concessions. (See Panel Reports, Peru – Agricultural Products,
Railway Equipment, para. 7.939).

issue in light of the conclusions reached regarding the interpretation of Article XIX of the GATT 1994
and the Agreement on Safeguards.
Interpretation of Article XIX of the GATT 1994 and the Agreement on Safeguards in
accordance with Article 3.2 of the DSU
Article XIX of the GATT 1994 is entitled "Emergency Action on Imports of Particular Products"
and provides in relevant part:
1. (a) If, as a result of unforeseen developments and of the effect of the obligations
incurred by a contracting party under this Agreement, including tariff concessions, any
product is being imported into the territory of that contracting party in such increased
quantities and under such conditions as to cause or threaten serious injury to domestic
producers in that territory of like or directly competitive products, the contracting party
shall be free, in respect of such product, and to the extent and for such time as may be
necessary to prevent or remedy such injury, to suspend the obligation in whole or in
part or to withdraw or modify the concession.
Article 1 of the Agreement on Safeguards is a "General Provision" and provides:
This Agreement establishes rules for the application of safeguard measures which shall
be understood to mean those measures provided for in Article XIX of GATT 1994.
Article 11 of the Agreement on Safeguards contains the following provisions on "Prohibition
and Elimination of Certain Measures":
1. (a) A Member shall not take or seek any emergency action on imports of particular
products as set forth in Article XIX of GATT 1994 unless such action conforms with the
provisions of that Article applied in accordance with this Agreement.
(b) Furthermore, a Member shall not seek, take or maintain any voluntary export
restraints, orderly marketing arrangements or any other similar measures on the export
or the import side. [3],[4] These include actions taken by a single Member as well as
actions under agreements, arrangements and understandings entered into by two or
more Members. Any such measure in effect on the date of entry into force of the
WTO Agreement shall be brought into conformity with this Agreement or phased out in
accordance with paragraph 2.
(c) This Agreement do es not apply to measures sought, taken or maintained by a
Member pursuant to provisions of GATT 1994 other than Article XIX, and Multilateral
Trade Agreements in Annex 1A other than this Agreement, or pursuant to protocols and
agreements or arrangements concluded within the framework of GATT 1994.
3 An import quota applied as a safeguard measure in conformity with the relevant provisions of
GATT 1994 and this Agreement may, by mutual agreement, be administered by the exporting
Member.
4 Examples of similar measures include export moderation, export-price or import-price
monitoring systems, export or import surveillance, compulsory import cartels and discretionary
export or import licensing schemes, any of which afford protection.

The Panel notes that a threshold question presented by the parties' arguments concerns the
applicability of Article XIX of the GATT 1994 and the Agreement on Safeguards to the measures at
issue. China emphasizes the characterization of the measures at issue as safeguards based on
objective features of the measures at issue. 353 The United States refers to Article XXI of the
GATT 1994 and contends that the Agreement on Safeguards is inapplicable to the measures at issue

353 China's first written submission, paras. 32-83. China specifically argues that the measures at issue
objectively present the constituent features of safeguard measures under Article XIX of the GATT 1994. (See
ibid. (referring to Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60)).

by virtue of Article 11.1(c) as the measures were "sought, taken or maintained … pursuant to
provisions of GATT 1994 other than Article XIX".354
The Panel recalls that it is required under Article 11 of the DSU to make an objective
assessment of the matter before it, including an objective assessment of the facts of the c ase and
the applicability of and conformity with the relevant covered agreements.355 Moreover, the Panel is
required to address the parties' disagreement regarding the applicability of the relevant covered
agreements in accordance with Article 3.2 of the DSU and the customary rules of interpretation of
public international law.356 The rule of interpretation set out in Article 31(1) of the Vienna Convention
forms part of such "customary rules of interpretation of public international law" and provides that
"[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the
terms in their context and in the light of its object and purpose."357 Regarding the interpretation of
treaties authenticated in two or more languages, the customary rules in Article 33 of the
Vienna Convention provide that "[t]he terms of the treaty are presumed to have the same meaning
in each authentic text" and that in case of a difference between authentic texts "which the application
of articles 31 and 32 [of the Vienna Convention] does not remove, the meaning which best reconciles
the texts, having regard to the object and purpose of the treaty, shall be adopted".358
The Panel notes that the Agreement on Safeguards "establishes rules for the application of
safeguard measures which shall be understood to mean those measures provided for in Article XIX
of GATT 1994".359 In this regard, Article 11.1(a) of the Agreement on Safeguards provides that "[a]
Member shall not take or seek any emergency action on imports of particular products as set forth
in Article XIX of GATT 1994 unless such action conforms with the provisions of that Article applied
in accordance with this Agreement." Article 11.1(a) is one of three paragraphs under Article 11.1 of
the Agreement on Safeguards as part of provisions entitled "Prohibition and Elimination of Certain
Measures" under which Article 11.1(b) prohibits "voluntary export restr aints, orderly marketing
arrangements or any other similar measures on the export or the import side". Article 11.1(c) refers
to measures "sought, taken or maintained … pursuant to provisions of GATT 1994 other than
Article XIX", to which the Agreement on Safeguards "does not apply".
According to its express terms, Article 11.1(c) removes certain measures from the scope of
application of the Agreement on Safeguards, including the rules specified in Article 11.1(a) and the
prohibition under Article 11.1(b).360 This is supported by the unambiguous reference in
Article 11.1(c) to the inapplicability of the Agreement on Safeguards as a whole in respect of
measures "sought, taken or maintained … pursuant to provisions of GATT 1994 other than Article
XIX". The Panel notes that the paragraphs of Article 11.1 of the Agreement on Safeguards do not
contain any terms explicitly indicating the limitation or qualification of any paragraph in relation to

354 United States' response to Panel question Nos. 77 and 78; see also second written submission,
section II.A.
355 The Panel further notes the principle affirmed in past disputes that panels under the DSU have
independence in the structure of their analysis and the development of legal reasoning, as well as latitude in
the evidence on the record relied upon to reach findings that will assist the DSB. (See e.g. Appellate Body
Reports, EC – Hormones, para. 156; EC – Fasteners (China) (Article 21.5 – China), para. 5.61; Panel Reports,
India – Solar Cells, para. 7.41; EC – Export Subsidies on Sugar (Australia), para. 7.121 and fn 437).
356 See section 7.1 above.
357 See e.g. Appellate Body Reports, US – Gasoline, p. 17; India – Patents (US), para. 46; Argentina –
Textiles and Apparel, para. 42; US – Carbon Steel, para. 61. The Panel notes the parties' agreement that the
Panel should be guided by the ordinary meaning of the terms of the Agreement on Safeguards in their context
and in light of the object and purpose of the agreement. (See United States' response to Panel question No. 20
and China's response to Panel question No. 97. See also United States' second written submission, section
IV.B).
358 See e.g. Appellate Body Reports, US – Softwood Lumber IV, para. 59; EC – Bed Linen (Article 21.5 –
India), fn 153; US – Upland Cotton, para. 424; and US – Stainless Steel (Mexico), fn 200.
359 Article 1 of the Agreement on Safeguards.
360 The French and Spanish versions of Article 11.1(c) use the terms "ne s'applique pas" and "no es
aplicable" respectively to denote that the Agreement on Safeguards is inapplicable to "mesures" or "medidas"
described in that provision. The Panel understands that the parties agree that Article 11.1(c) excludes certain
measures from the scope of application of the Agreement on Safeguards, notwithstanding their disagreement
as to when such measures may be considered to have been "sought, taken or maintained … pursuant to
provisions of the GATT 1994 other than Article XIX" within the meaning of Article 11.1(c). (See China's
response to Panel question Nos. 20 and 22; United States' response to Panel question Nos. 20 and 22).

another.361 In this respect, Article 11.1 does not subordinate any of the paragraphs in relation to
one another concerning the applicability of the Agreement on Safeguards. The Panel thus considers
that finding the measures at issue to fall within the scope of Article 11.1(c) would fully address the
matter within the Panel's terms of reference under the Agreement on Safeguards as there would be
no basis to assess claims of inconsistency under an agreement that "does not apply" to the measures
at issue. The Panel is mindful in this connection of its mandate to make only such findings under the
covered agreements as will assist the DSB in this dispute, taking into account the specific measures
at issue, the evidence and arguments submitted by the parties, and the Panel's overall conclusions
reached with respect to the matter referred to the DSB.362
In the circumstances of this dispute, the Panel therefore considers that it is appropriate to
determine whether the measures at issue can be characterized as having been "sought, taken or
maintained … pursuant to provisions of GATT 199 4 other than Article XIX" within the meaning of
Article 11.1(c) of the Agreement on Safeguards. The Panel will focus its assessment on the terms of
Article 11.1(c) of the Agreement on Safeguards, and particularly, the terms "pursuant to" and "other
than", in their context and in light of the object and purpose of the Agreement on Safeguards.
Regarding the terms "pursuant to" in Article 11.1(c), China argues that this phrase refers to
measures that are in conformity with or consistent with provisions of the GATT 1994. As a
consequence, China considers that the measures sought, taken or maintained by a Member must
satisfy the conditions of "provisions of GATT 1994 other than Article XIX" to be excluded from the
scope of the Agreement on Safeg uards.363 For the United States, the expression "pursuant to" is
different from the terms "in compliance with" or "consistent with", and serves the function of
"direct[ing] the Panel to the other GATT 1994 provision pursuant to which the measure in question
was attempted or tried".364
The Panel will assess the meaning of "pursuant to" as it is used in Article 11.1(c) having
regard for relevant context and the use of terms in the three authentic language ver sions of the
Agreement on Safeguards, in accordance with the customary rules of interpretation of public
international law. The expression "pursuant to" in Article 11.1(c) denotes the existence of a
relationship between the measures of a Member and provisi ons of the GATT 1994 other than
Article XIX.365 The term "pursuant" when used with the preposition "to" may mean "under", "in
accordance with", "in consequence of", or "as authori zed by". 366 Taken in isolation, the terms
"pursuant to" could potentially accom modate a range of meanings. Within this range of meanings,
the terms "pursuant to" in the context of Article 11.1(c) could be understood as consistency with
the requirements of a provision of the GATT 1994 other than Article XIX, or a different relationship
that does not require such consistency. For example, a measure could be characterized under
Article 11.1(c) as being "pursuant to" a provision in the sense of being sought, taken, or maintained
under the purview of that provision without necessarily meet ing the requirements of the specific
terms of such other provision.
The Panel finds instructive the contrast between "pursuant to" in Article 11.1(c) and terms
used elsewhere in the Agreement on Safeguards that appear to convey a relationship of consistency

361 The paragraphs of Article 11.1 can be contrasted in this respect with other provisions of the covered
agreements that explicitly limit or qualify the scope of that provision by reference to another provision in the
covered agreements, including within the same article. See e.g. Article 5.6 of the Agreement on Safeguards
("Notwithstanding the provisions of paragraph 5 …"); Article 3.3 of the SPS Agreement ("Notwithstanding the
above …"); Article X:6 of the WTO Agreement ("Notwithstanding the other provisions of this Article …");
Article 3.1 of the Agreement on Agriculture ("Subject to the provisions of Article 6 …"); Article XII:1 of the
GATT 1994 ("… subject to the provisions of the following paragraphs of this Article"); Article 7.1 of the
Agreement on Safeguards ("… provided that the pertinent provisions of Articles 8 and 12 are observed").
362 In the particular circumstances of this dispute, if the Agreement on Safeguards were determined to
be inapplicable to the measures at issue, the Panel does not consider that there would be anything additional
under Article XIX of the GATT 1994 within the Panel's terms of reference on which it could make findings to
assist the DSB in this matter.
363 China's response to Panel question No. 20, paras. 60-61.
364 United States' response to Panel question Nos. 20 and 96.
365 Similarly, in the French and Spanish versions of Article 11.1(c), the phrases "en vertu de" and "de
medidas") and provisions of the GATT 1994 other than Article XIX ("dispositions du GATT de 1994 autres que
l'article XIX" and "disposiciones del GATT de 1994, aparte del artículo XIX").
366 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 2411; Garner's
Dictionary of Legal Usage, 3rd Edition (Oxford University Press. 2011), p. 737.

with the requirements of another provision of the covered agreements. This is particularly evident
in the other paragraphs of Article 11.1 of the Agreement on Safeguards that provide immediate
context to the terms of Article 11.1(c) and use the express ions "in accordance with" and "in
conformity with" other provisions. The obligation for safeguard measures to meet the requirements
of Article XIX of the GATT 1994 and the Agreement on Safeguards is expressed in Article 11.1(a) by
providing that Members' s afeguard measures must " conform[] with the provisions of that
Article applied in accordance with this Agreement". 367 Similarly, the elimination of measures
prohibited under Article 11.1(b) is expressed in the obligation that such measures "shall be brought
into conformity with this Agreement or phased out in accordance with " the mandatory timetables
and requirements set out in Article 11.2.368 These explicit references in Article 11.1 to "conformity"
and actions "in accordance with" other provisions are compa rable to other uses of these terms in
the Agreement on Safeguards that similarly appear to denote consistency with the referenced
requirements.369
The contrast in meaning between "pursuant to" in Article 11.1(c) and terms expressing a
standard of consistency finds support in the French version of the provision referring to "mesures …
en vertu de dispositions de GATT de 1994 autre que l'article XIX ". As in the English text, the
Agreement on Safeguards uses the French terms " conformes" and " conformément" in Articles
11.1(a) and 11.1(b) for "conforms" and "in accordance with", which similarly appear to indicate
consistency or conformity with the legal provisions specified in those paragraphs.370 In contrast, the
French version of Article 11.1(c) foregoes the term "conformément" in favour of "en vertu de", whose
dictionary meanings include " en conséquence de " (as a consequence of), " par l'effet de " (by the
effect of), "par le pouvoir de" (by the power of), and "au nom de" (in the name of or on behalf of).371
The Panel further notes that the use of the French term "conformément" in various provisions of the
Agreement on Safeguards corresponds to English references to "conformity" and actions being "in
accordance with" other provisions. 372 The terms of Article 11.1(c) in both English and French thus
reflect a departure from terms used in other provisions of the Agreement on Safeguards that appear
to convey a requirement of conformity or consistency.
The Panel notes the terminology used in the Spanish version of the Agreement on Safeguards,
which in Article 11.1(c) provides that the Agreement does not apply to measures sought, taken or
maintained "de conformidad con otras disposiciones del GATT de 1994". Dictionary meanings of the
terms "de conformidad con" include "con arreglo a" or "a tenor de" (according to), "en proporción o
correspondencia a" (in proportion or correspondence to), or "de la misma suerte o manera que" (in
the same way or manner).373 The Spanish terms "de conformidad con" are also used in the provisions
referred to above in which the English and French terms use variants of "conformity" or "conformité",
as well as "in accordance with" in English, and appear to indicate a requirement of conformity or
consistency with the other referenced legal provisions. This is notably the case in Articles 11.1(a)
and (b) where the Spanish text uses similar terms ("conformes" and "de conformidad con") as those
used in English and French. The Spanish version of Article 11.1(c) refers to "conformidad con otras

367 Emphasis added.
368 Emphasis added. See also footnote 3 to Article 11.1(b) of the Agreement on Safeguards ("[a]n
import quota applied as a safeguard measure in conformity with the relevant provisions of GATT 1994 and this
Agreement may, by mutual agreement, be administered by the exporting Member") (emphasis added). The
indication of consistency or conformity with certain requirements is further supported by the mandatory terms
"shall" and "must" in Article 11.2 establishing the obligations with which a measure must be in conformity or
accordance.
369 See e.g. Article 4.1(b) ("'threat of serious injury' shall be understood to mean serious injury that is
clearly imminent, in accordance with the provisions of paragraph 2") (emphasis added); Article 4.2(c) ("The
competent authorities shall publish promptly, in accordance with the provisions of Article 3 …") (emphasis
added); Article 7.2 ("[t]he period mentioned in paragraph 1 may be extended provided that the competent
authorities of the importing Member have determined, in conformity with the procedures set out in Articles 2,
3, 4 and 5 …") (emphasis added). In prior disputes under the Agreement on Safeguards, the Appellate Body
has referred to other provisions in the Agreement on Safeguards establishing requirements with which
safeguard measures must be in conformity, such as the conditions in Article 2.1 and the requirements of
Articles 3 and 4. (See Appellate Body Reports, US – Line Pipe, para. 84; US – Steel Safeguards, para. 264).
370 See also footnote 3 to Article 11.1(b) of the Agreement on Safeguards ("Un contingent d'importation
372 See e.g. Article 4.1(b) ("conformément aux dispositions du paragraphe 2"); Article 4.2(c)
articles 2, 3, 4 et 5").
373 Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), pp. 420-421.

disposiciones del GATT de 1994", unlike the English and French terms in Article 11.1(c) that reflect
a clear departure from references to "conformity" or being "in accordance with" other legal
provisions.374
On balance, these considerations indicate that the terms "purs uant to" in Article 11.1(c) of
the Agreement on Safeguards do not require consistency with provisions of the GATT 1994 other
than Article XIX for a measure to fall under that paragraph. The text of Article 11.1(c) does not make
any explicit reference to a requirement of conformity with the provisions of GATT 1994 in English or
French in contrast to other provisions of the Agreement on Safeguards, including those that provide
immediate context for Article 11.1(c). The use of the French terms " en vertu de" in Article 11.1(c)
is especially compelling in this regard in signalling a contrast to the term " conformément" and
indicates a different legal relationship than consistency or conformity with the requirements of a
provision of the GATT 1994 other than Article XIX.
The comparison of terms in the different language versions is instructive but not in itself
dispositive regarding the interpretation of Article 11.1(c) of the Agreement on Safeguards in
accordance with Article 3.2 of the DSU. 375 The terms of Article 11.1(c) must be interpreted in
accordance with their ordinary meaning in their context and in light of the object and purpose of the
Agreement on Safeguards. Moreover, to the extent that the Spanish text "discloses a difference of
meaning" when compared to the text of Article 11.1(c) in English and French, the Panel finds
guidance in the rule of interpretation in Article 33(4) of the Vienna Convention that, if such difference
cannot be removed by application of Articles 31 and 32 of the Vienna Convention, the meaning which
best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.376
The Panel considers that interpreting the terms "pursuant to" in Article 11.1(c) to refer to
measures sought, taken, or maintained under the purview of another provision of the GATT 1994,
without entailing consistency with the requirements of such other provision, accords with the specific
context in which those terms appear. The terms "pursuant to" in Article 11.1(c) form part of a
provision governing the applicability of the Agreement on Safeguards rather than the consistency of
measures with the rules and requirements of that agreement. 377 Accordingly, the nature of the
relevant inquiry under Article 11.1(c) does not re late to another provision of the GATT 1994 as a
legal exception or justification for inconsistencies with the Agreement on Safeguards.378 Rather, the

374 The Spanish terms "de conformidad con" are also used in other provisions of the Agreement on
Safeguards that appear to indicate a standard of consistency across all language versions. (See e.g.
artículos 2, 3, 4 y 5")). The Panel further notes that the terms "de conformidad con" are translated with some
variation in English, including provisions in which the corresponding term for "de conformidad con" in the
English version is "under" within the specific context of the provision in question. (See Article 7.1 ("The period
shall not exceed four years, unless it is extended under paragraph 2.") (emphasis added); Article 7.4 ("A
measure extended under paragraph 2 …") (emphasis added)).
375 The Panel notes that the terms "pursuant to" appear in various provisions of the Agreement on
Safeguards for which the corresponding French and Spanish terms reflect the potential range of meanings of
these terms according to their specific context. For example, Article 2.1 provides that a safeguard measure
may be applied "only if that Member has determined, pursuant to the provisions set out below," various
conditions for the application of safeguard measures. The context of mandatory conditionality in which
"pursuant to" appears in Article 2.1 ("may apply a safeguard measure … only if") is reflected in the French and
Spanish, respectively, as "conformément" and "con arreglo a". As another example, Article 10 of the
Agreement on Safeguards refers to "safeguard measures taken pursuant to Article XIX of GATT 1947" where
the corresponding French and Spanish terms ("au titre de" and "al amparo del" respectively) do not appear to
indicate consistency or conformity.
376 As noted above, this rule of interpretation forms part of the "customary rules of interpretation of
public international law" referred to in Article 3.2 of the DSU. See para. 7.68 above.
377 See Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.57 (distinguishing "factors
pertaining to the legal characterization of a measure for purposes of determining the applicability of the WTO
safeguard disciplines" from "the substantive conditions and procedural requirements that determine the WTO
consistency of a safeguard measure") (emphasis original).
378 The Panel notes in this regard that Article 11.1(c) of the Agreement on Safeguards serves a similar
role to certain provisions in the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing
Measures (SCM Agreement), which allow Members to take measures "under" other provisions of the
GATT 1994 but do not indicate a requirement of conformity with such other provisions. Moreover, the French
and Spanish versions of these provisions do not use terms such as "conformément" and "conformidad" but
rather "au titre" and "al amparo" respectively. (See Article 18.1 of the Anti-Dumping Agreement, footnote 24

relevant inquiry under Article 11.1(c) corresponds to the threshold issue of applicability and leaves
as a separate inquiry whether a measure is consistent with the requirements of such other provision
"pursuant to" which the measure was sought, taken, or maintained.
These considerations are also relevant for the interpretation of the terms "other than" in
Article 11.1(c) of the Agreement on Safeguards. The parties dispute the meaning of these terms
particularly in relation to their arguments on the characterization of measures as safeguards within
the meaning of Article XIX of the GATT 1994 and Article 1 of the Agreement on Safeguards. In this
connection, China contends that a measure may possess certain objective features of a safeguard
measure and, if so, such measure would not be pursuant to a provision "other than" Article XIX in
the sense of Article 11.1(c).379 In the Panel's view, China's interpretation of the terms "provisions …
other than" amounts to meaning provisions that are exclusively other than Article XIX of the
GATT 1994. The Panel understands this interpretation to mean that the Agreement on Safeguards
could still be applicable to a measure notwithstanding its characterization as being pursuant to
another provision of the GATT 1994.
With respect to the ordinary meaning of the terms "other than", dictionary definitions include
"besides", "except" or "apart from". 380 The Panel notes that all three language versions of
Article 11.1(c) contain terms that are not qualified by any specification or limitation with respect to
being "other than" Article XIX of the GATT 1994. The ordinary meaning of these terms in their
context encompasses measures that are pursuant to another provision of the GATT 1994, and the
Panel does not find in the text of Article 11.1(c) the imposition of an additional requirement or
limitation of being exclusively pursuant to such other provision. This interpretation is consonant with
the context of the paragraphs of Article 11.1 that together establish the conditions for the
applicability of the Agreement on Safeguards. The question of applicability is addressed under
Article 11.1(c) by terms specifying a relationship between a measure and a provision of the
GATT 1994 "other than" Article XIX, namely that a measure is "pursuant to" such other relevant
provision, and providing that the Agreement on Safeguards does not apply to such measure.381
The Panel finds support for these conclusions in the object and purpose of the Agreement on
Safeguards as expressed in its preamble recognizing "the need to clarify and reinforce the disciplines
of GATT 1994, and specifically those of its Article XIX (Emergency Action on Imports of Particular
Products), to re-establish multilateral control over safeguards and eliminate measures that escape
such control". In this regard, the preamble further expresses recognition of the need for "a
comprehensive agreement, applicable to all Members and based on the basic principles of
GATT 1994". An essential corollary of the "multilateral control over safeguards" and elimination of
"measures that escape such control" under the Agreement on Safeguards is the explicit preservation
under Article 11.1(c) of the right for Members to adopt measures under legal provisions of the
GATT 1994 that are part of the "basic principles" affirmed and reinforced by the Agreement on
Safeguards. The Panel considers significant in this regard the placement of Article 11.1(c) in the list
of paragraphs under Article 11.1 as part of provisions entitled "Prohibition and Elimination of Certain
Measures". The imposition of obligations to "clarify and reinforce the disciplines of GAT T 1994", as
notably expressed in Articles 11.1(a) and (b), is explicitly conditioned by the terms of Article 11.1(c)
on the applicability of the agreement as a whole. The requirement under Article 11.1(c) for a

and Article 32.1 of the SCM Agreement, footnote 56). At the same time, the Panel notes differences in the
terminology and structure of Article 11.1(c) of the Agreement on Safeguards compared to these footnotes,
which provide that the particular terms of Article 18.1 of the Anti-Dumping Agreement and Article 32.1 of the
SCM Agreement are "not intended to preclude actions under other relevant provisions of GATT 1994". By
contrast, Article 11.1(c) is in the main text of the provision and expressly states conditions under which the
agreement "does not apply". (See Appellate Body Report, US – Offset Act (Byrd Amendment), para. 262
(referring to Appellate Body Report, US – 1916 Act, para. 123) (describing the "accessory footnotes" as
"clarifications of the main provisions" on the "specific action" Members are permitted to take against dumping
or subsidies)).
379 China's second written submission, para. 30.
380 The terms of Article 11.1(c) in French and Spanish ("autres que" and "aparte del" respectively)
similarly mean different from or with the omission of. See Le Petit Robert Dictionnaire de la Langue Francaise
(2000), pp. 185-186 and Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), p.
120.
381 In the context of the objective assessment required under Article 11 of the DSU, the relevant
provision under Article 11.1(c) of the Agreement on Safeguards (i.e. the provision of the GATT 1994 "other
than" Article XIX) depends on the specific circumstances of the dispute, including the measures and claims at
issue, legal provisions raised by the parties, as well as the relevant evidence and arguments submitted by the
parties.

measure to be "pursuant to" a provision "other than" Article XIX of the GATT 1994 thus serves the
maintenance of a balance of rights and obligations that are in turn based on the terms of such other
provision.
The relevant provision of the GATT 1994 other than Article XIX in this dispute is Article XXI
entitled "Security Exceptions", which provides inter alia that "[n]othing in this Agreement shall be
construed … to prevent any [Member] from taking any action which it considers necessary for the
protection of its essential security interests".382 In accordance with the requirements of Article 11 of
the DSU, the Panel will assess the applicability of the Agreement on Safeguards to the measures at
issue in light of the foregoing interpretive considerations on Article 11.1(c) as well as the evidence
and arguments submitted by the parties in this dispute. Taking into account the case-specific nature
of the relevant inquiry on applicability rather than conformity, the Panel will identify relevant aspects
of the design and application of the measures with spe cific reference to their legal characterization
under Article 11.1(c) of the Agreement on Safeguards. The Panel will give due consideration to all
relevant evidence in this regard including the domestic law and procedures under which the
measures were adopted as well as any relevant notifications or statements to the official bodies of
the WTO.383
The Panel takes note of the United States' arguments in relation to the meaning of the term
"sought" in Article 11.1(c) of the Agreement on Safeguards, which are related to the United States'
contention that, based on Article XIX:2 of the GATT 1994, formal notification of safeguard measures
to the WTO is a "condition precedent" to the applicability of safeguard disc iplines.384 As detailed
below, the Panel considers the manner in which the measures were raised before the WTO, including
notifications to relevant WTO bodies or committees, as part of the assessment of the evidence and
arguments submitted on all relevant aspects of the measures at issue in this dispute. The Panel does
not consider it necessary for the purposes of this dispute to address in further detail the
United States' arguments on WTO notification being a "condition precedent" for the applicability of
safeguard disciplines.
Finally, the Panel notes that the parties have referred to certain aspects of the negotiating
history of the Agreement on Safeguards in support of their respective positions. Under Article 32 of
the Vienna Convention, recourse to supplementary means of interpretation, including the
preparatory work of a treaty, may be had either to confirm the meaning resulting from the
application of Article 31, or to determine the meaning when the interpretation according to Article 31
leaves th e meaning ambiguous or obscure or leads to a result which is manifestly absurd or
unreasonable. The Panel does not consider that the application of Article 31 of the Vienna Convention
to the interpretation of Article 11.1(c) of the Agreement on Safeguards leaves the meaning of the
provision ambiguous or obscure, nor does the Panel find that it leads to a result which is manifestly
absurd or unreasonable. Nevertheless, the Panel has examined the negotiating history of the
provision in order to confirm the me aning resulting from the application of Article 31 of the
Vienna Convention. As detailed in Appendix A to this Report , the Panel's review of the negotiating

382 See section 7.8 below.
383 The Panel notes that the Appellate Body identified various relevant factors for the determination of
whether measures constitute safeguard measures under Article XIX of the GATT 1994. In this dispute, the
relevant inquiry is directed by the terms of Article 11.1(c) to a provision other than Article XIX of the
GATT 1994. Nevertheless, there is a broad parallel in both contexts of distinguishing questions of legal
applicability from those concerning legal consistency and, for the former, making an objective examination of
the specific measures at issue according to the relevant provision of the GATT 1994 upon which to determine
the applicability of the Agreement on Safeguards. (See Appellate Body Report, Indonesia – Iron or Steel
Products, para. 5.60).
384 United States' second written submission, sections IV.B.1 ("Article 11.1(c) Supports That Invocation
is a Condition Precedent for … a Member's exercise of its right to take action under Article XIX and Application
of Safeguards Rules") and IV.B.2 ("Other Provisions of the Agreement on Safeguards Also Support that Notice
is a Condition Precedent for Action Under Article XIX"). For the various terms used by the United States to
describe the "condition precedent" for the applicability of safeguard disciplines, see United States' second
written submission, para. 134 ("notice is a condition precedent to taking action under Article XIX");
paras. 136-137 ("[t]he text of Article XIX:2 explicitly sets out a requirement to invoke the provision through
notice as a condition precedent to action under Article XIX:1… [w]ithout such notice, a Member is not seeking
legal authority pursuant to Article XIX"); para. 162 ("notice under Article XIX:2 is a fundamental, condition
precedent to a Member's exercise of its right to take action under Article XIX and the application of safeguards
disciplines"); and para. 194 ("invocation through written notice is a condition precedent to a Member's exercise
of its right to take action under Article XIX and the application of safeguards rules to that action").

history of Article 11.1(c) of the Agreement on Safeguards confirms the conclusions reached by the
Panel regarding the interpretation of that provision.
Based on the foregoing, the Panel will assess the applicability of the Agreement on Safeguards
in this dispute according to whether the measures at issue were sought, taken, or maintained
pursuant to Article XXI of the GATT 1994 within the meaning of Article 11.1(c) of the Agreement on
Safeguards.
Assessment of the measures at issue
The United States adopted the measures at issue under Section 232 and the related
procedures set out in Title 15, Part 705 of the Code of Federal Regulations.385 According to the terms
of the domestic legislation, Section 232 concerns actions taken by the United States for
"[s]afeguarding national security". 386 Moreover, Section 232 authorizes the US Secretary of
Commerce to investigate the effects of imports of an article on US national security387, in consultation
with the Secretary of Defense and other appropriate officers of the United States.388 If the Secretary
of Commerce determines that an article is being imported into the United States in such quantities
or under such circumstances as to threaten to impair the national security, the US President may
adjust the imports of that article into the United States.389 In this respect, Section 232 directs the
US Secretary of Commerce and the US President to give consideration among other factors to the
domestic production needed for projected national defence and the impact of foreign competition on
the economic welfare of domestic industries essential to US national security.390
The US Secretary of Commerce commenced investigations under Section 232 to determine
the effects of imports of certain steel and aluminium products on US national security in
April 2017.391 The findings of these investigations were published in January 2018 in the Steel and
Aluminium Reports, where the US Secretary of Commerce determined that present quantities of
steel and aluminium imports were "weakening [the United States'] internal economy" and therefore
"threaten to impair" its national security. 392 According to these reports, rising levels of imports of
foreign steel and aluminium place at substantial risk the capacity of domestic industries to produce
steel and aluminium for critical infrastructure and national defence393, especially in times of national
emergencies.394 The reports recommend corrective actions against imports in the form of tariffs and
quotas with a view to improve domestic capacity utilization and stabilize US production at the level
required for its security needs.395
The measures at issue in this dispute on imports of steel and aluminium into the United States
are based on the abovementioned findings and recommendations by the US Secretary of

385 See section 2.1 above.
386 Section 232, (Exhibit CHN-1 and USA-1), § 1862. Title 15, Part 705 of the Code of Federal
Regulations sets out the procedures by which the US Department of Commerce commences and conducts an
investigation "to determine the effect on the national security of the imports of any article". (See Section 232
regulations, (Exhibit USA-2), § 705.2).
387 Section 232, (Exhibit CHN-1 and USA-1), § 1862(b)(1)(A).
388 Section 232, (Exhibit CHN-1 and USA-1), §§ 1862(b)(2)(A)(i) and b(2)(A)(ii).
389 Section 232, (Exhibit CHN-1 and USA-1), § 1862(c)(1)(A).
390 Section 232, (Exhibit CHN-1 and USA-1), § 1862(d); Section 232 regulations, (Exhibit USA-2), §
705.4.
391 Steel Report, (Exhibit CHN-4 and USA-7), p. 18; Aluminium Report, (Exhibit CHN-5 and USA-8), p.
18. See also sections 2.1.2 and 2.1.3 above.
392 Steel Report, (Exhibit CHN-4 and USA-7), p. 55; Aluminium Report, (Exhibit CHN-5 and USA-8),
p. 104.
393 Steel Report, (Exhibit CHN-4 and USA-7), p. 55; Aluminium Report, (Exhibit CHN-5 and USA-8),
p. 104.
394 Steel Report, (Exhibit CHN-4 and USA-7), pp. 55-56; Aluminium Report, (Exhibit CHN-5 and USA-8),
p. 105 (also noting that rising imports have placed at risk the capability of domestic industries to "quickly shift
production capacity used for commercial products to defense and critical infrastructure production that
provides the United States a surge capability that is vital to national security, especially in an unexpected or
extended conflict or national emergency").
395 Aluminium Report, (Exhibit CHN-5 and USA-8), pp. 104-105. See also Steel Report, (Exhibit CHN-4
and USA-7), p. 58 (recommending quotas or tariffs on steel imported into the United States to increase
domestic capacity utilization and to keep the domestic steel industry financially viable and able to meet US
national security needs).

Commerce.396 The Presidential Proclamations concurring with these findings and recommendation s
describe the measures as "necessary" and "appropriate" to address the threatened impairment of
national security.397 Presidential Proclamations 9704 and 9705 providing for additional duties on
steel and alumin ium imports state that "[t]his relief will … r evive idled facilities, open closed
[smelters and] mills, preserve necessary skills by hiring new [steel and aluminium workers], and
maintain or increase production", which in turn will "reduce [the United States'] need to rely on
foreign producers for [steel and aluminium] and ensure that domestic producers can continue to
supply all the [steel and aluminium] necessary for critical industries and national defense".398 These
proclamations further describe the additional duties as "an important first step in ensuring the
economic viability" of the United States' domestic steel and aluminium industry, without which "the
industry will continue to decline, leaving the United States at risk of becoming reliant on foreign
producers … to meet [its] national security needs".399 These Presidential Proclamations thus describe
the national security objectives that the United States seeks to achieve by adopting measures
against a "high level of imports".400
The national security considerations expressed in the domestic legal instruments and acts
underlying the measures at issue are also observable in the application of the additional duties on
steel and aluminium imports, including their country and product scope. In this regard, Presidential
Proclamations 9704 and 9705 recognize that the United States may remove or modify the restriction
on steel and alumin ium imports from a country if it determines that imports from the country no
longer threaten to impair its national security.401 The United States exempted various countries from
the additional duties on steel and aluminium imports following such determinations402, based on its
"important security relationships" and "security, defense, and intelligence partnership[s]" with these
countries as well as their "shared concern about global excess capacity, a circumstance that is
contributing to the threatened impairment of [US] nat ional security".403 The Panel also notes that
the additional duties are applied to products that are determined by the relevant domestic authorities
of the United States to be important for its military systems and critical infrastructure.404
These consider ations indicate that the measures at issue were designed and expected to
operate in relation to the United States' determination of a threat to its national security under the
relevant domestic laws. In this regard, the Panel notes several other relevant a spects of the
measures at issue and their application supporting this conclusion. For example, Presidential
Proclamations 9740, 9758 and 9759 introduce quotas restricting steel and aluminium imports from
certain countries to provide "effective, long-term alternative means" to address their contribution to

396 See e.g. Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11619 and Presidential
Proclamation 9705, (Exhibit CHN-7 and USA-9), p. 11626 noting that the US President concurs with the
Secretary's findings in the Steel and Aluminium Reports and has considered the recommendations in these
reports.
397 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHN-7 and USA-9), p. 11626.
398 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHN-7 and USA-9), p. 11626.
399 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHN-7 and USA-9), pp. 11626-11627.
400 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHN-7 and USA-9), p. 11626.
401 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHN-7 and USA-9), p. 11626 (further noting that the United States may make corresponding
adjustments to the additional duties applicable to other countries as its national security interests require).
402 See sections 2.2.1.2 and 2.2.2.2 above for a list of the exempted countries.
403 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHN-7 and USA-9), p. 11626; Presidential Proclamation 9710, (Exhibit CHN-8 and USA-12),
pp. 13355-13356; Presidential Proclamation 9711, (Exhibit CHN-9 and USA-11), pp. 13361-13362.
404 Steel Report, (Exhibit CHN-4 and USA-7), Appendix H and Appendix I; Aluminium Report, (Exhibit
CHN-5 and USA-8), pp. 24-39. See also Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11623
(providing for additional duties on imports of unwrought aluminium; aluminium bars, rods and profiles;
aluminium wires; aluminium plates, sheets, strips and foil; aluminium tubes, pipes and tube or pipe fittings;
and aluminium castings and forgings) and Presidential Proclamation 9705, (Exhibit CHN-7 and USA-9), p.
11629 (providing for additional duties on imports of flat-rolled steel products; steel bars and rods; steel wire;
steel sheet piling; steel rails; steel fish-plates and sole plates; steel tubes, pipes and hollow profiles; steel
ingots; products of stainless steel; and other products of iron or steel). See also Steel Report, (Exhibit CHN-4
and USA-7), pp. 21-22; Aluminium Report, (Exhibit CHN-5 and USA-8), p. 20.

the threat to national security as determined by the United States.405 These quotas are applied only
in respect of countries with which the United States has identified "important security
relationships".406 Presidential Proclamations 9704, 9705, 9776, and 9777 set out a product exclusion
process to provide relief from the additional duties and import quotas based on "specific national
security considerations".407 Moreover, the Presidential Proclamations discussed above indicate that
the measures at issue may be modified or removed based on monitoring by the US Secretary of
Commerce and review of "the status of [steel and aluminium] imports with respect to national
security".408 The Panel also considers relevant the procedures under which the measures were
adopted and applied, and in particular the consultations carried out with departments of government
such as the US Department of Defense in relation to certain criteria for determining effects of imports
on national security.409
The Panel further notes that the national security considerations described above are reflected
in notifications and statements made by the United States before various official bodies of the WTO
both prior to and following the adoption of the measures at issue. In a meeting of the WTO Council
of Goods on 10 November 2017, before completing its Section 232 investigations into steel and
aluminium imports, the United States noted that these investigations "were being conducted by the
Bureau of Industry and Security (BIS), a Department of the US Commerce Agency". The
United States further remarked that the purpose of these investigations was to "determine the effect
of steel and aluminium imports on US nationa l security, and whether the global excess capacity
problem in those industries was threatening the ability of the United States to meet its national
security needs".410
In subsequent discussions at the WTO, the United States explicitly referred to Article XXI of
the GATT 1994 in connection with the measures on steel and aluminium under Section 232. Shortly
after Presidential Proclamations 9704 and 9705 introduced the additional duties discussed above,
the United States provided information concerning these proclamations in a meeting of the WTO
Council for Trade in Goods. At this meeting, the United States referred to "the findings and
recommendations in investigations concerning the impact of steel and aluminium imports on US
national security" and indicated that it was providing this information "pursuant to Section 232 of
the Trade Expansion Act of 1962, as amended, and consistent with the Decision Concerning

405 Presidential Proclamation 9740, (Exhibit CHN-11 and USA-13), pp. 20683-20684; Presidential
Proclamation 9758, (Exhibit CHN-12 and USA-16), p. 25850; and Presidential Proclamation 9759, (Exhibit
CHN-13 and USA-15), pp. 25857-25858. Moreover, these proclamations follow Presidential Proclamations 9710
and 9711 discussing the appropriate means to ensure that exemptions from the additional duties do not
undermine the national security objectives of the duties and noting that without "satisfactory alternative means
addressing long-term solutions… the industry will continue to decline, leaving the United States at risk of
becoming reliant on foreign producers of [steel and aluminium] to meet [its] national security needs". (See
Presidential Proclamation 9710, (Exhibit CHN-8 and USA-12), pp. 13356-13357 and Presidential Proclamation
9711, (Exhibit CHN-9 and USA-11), pp. 13362-13363).
406 See Presidential Proclamation 9740, (Exhibit CHN-11 and USA-13), p. 20683; Presidential
Proclamation 9758, (Exhibit CHN-12 and USA-16), p. 25849; and Presidential Proclamation 9759, (Exhibit
CHN-13 and USA-15), p. 25857.
407 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), p. 11621; Presidential Proclamation
9705, (Exhibit CHN-7 and USA-9), p. 11627; Presidential Proclamation 9776, (Exhibit CHN-15 and USA-19),
p. 45020; and Presidential Proclamation 9777, (Exhibit CHN-16 and USA-18), p. 45026. See also the March
Interim Final Rule, (Exhibit CHN-17 and USA-20), p. 12111 and the September Interim Final Rule, (Exhibit
CHN-18 and USA-21), p. 46058 (explaining that this criterion allows the US Department of Commerce, in
consultation with other parts of the US Government as warranted, to consider impacts on US national security
that may result from not approving an exclusion and that the demonstrated concern with US national security
would need to be tangible, clearly explained and would be ultimately determined by the US Government).
408 Presidential Proclamation 9704, (Exhibit CHN-6 and USA-10), pp. 11621-11622; Presidential
Proclamation 9705, (Exhibit CHN-7 and USA-9), p. 11628. See also Presidential Proclamation 9740, (Exhibit
CHN-11 and USA-13), p. 20684; Presidential Proclamation 9758, (Exhibit CHN-12 and USA-16), p. 25850; and
Presidential Proclamation 9759, (Exhibit CHN-13 and USA-15), p. 25858. The Panel notes that the measures
applicable to imports from certain countries have been modified under this authority. (See e.g. Presidential
Proclamation 9772, (Exhibit CHN-14) and Presidential Proclamation 9980, (Exhibit CHN-40 and USA-225)).
409 See Steel Report, (Exhibit CHN-4 and USA-7), pp. 18-20 and Appendices E-G; Aluminium Report,
(Exhibit CHN-5 and USA-8), pp. 18-19 and Appendices A-B. See also Presidential Proclamation 9704, (Exhibit
CHN-6 and USA-10); Presidential Proclamation 9705, (Exhibit CHN-7 and USA-9); Presidential Proclamation
9758, (Exhibit CHN-12 and USA-16); and Presidential Proclamation 9759, (Exhibit CHN-13 and USA-15)
(directing the US Secretary of Commerce to consider adjustments to the additional duties and import quotas in
consultation with the Secretary of Defense).
410 Council for Trade in Goods, Minutes of the Meeting held on 10 November 2017, G/C/M/130, (Exhibit
USA-80), pp. 26-27.

Article XXI of the General Agreement taken by the GATT Council on 30 November 1982".411 In a
communication shortly thereafter to the Committee on Safeguards, the United States responded to
a request for consultations under Article 12.3 of the Agreement on Safeguards and referred to
information it had provided to the WTO Council for Trade in Goods "consis tent with the Decision
Concerning Article XXI of the General Agreement taken by the GATT Council on
30 November 1982".412
In a meeting of the WTO General Council on 8 May 2018, the United States referred to "the
reasons underlying the United States' defense of critical national security interests" and recalled the
Presidential Proclamations under Section 232 "determining that tariffs are necessary to adjust
imports of steel and aluminum articles that threaten to impair the national security of the
United States". The United States further referred at that meeting to having "previously informed
Members about the proclamations issued by the President pursuant to Section 232 of the Trade
Expansion Act of 1962, as amended". The United States additionally referred to its "statement at
the Council for Trade in Goods meeting on March 23 – a statement we provided consistent with the
Decision Concerning Article XXI of the Genera l Agreement taken by the GATT Council on
30 November 1982".413 At a meeting of the DSB following the complainant's request for
establishment of a panel in this dispute, the United States referred to the determination that
"imports of steel and aluminum threaten to impair U.S. national security".414
On 28 September 2018, the United States notified import quotas on steel products from the
Republic of Korea , Argentina, and Brazil, and alumin ium products from Argentina to the WTO
Committee on Market Access. In th is notification, the United States listed Article XXI of the
GATT 1994 as the "WTO Justification and Grounds for Restriction".415
Based on the foregoing evidence, the Panel considers that a central aspect of the design and
application of the measures at issue is their relation to the United States' determination of a threat
to its national security under the relevant domestic laws. The national security considerations of the
United States are manifest in the application, modification, and removal of the add itional duties,
quotas, and exemptions discussed above. Moreover, this aspect of the measures was emphasi zed
and explicitly linked to Article XXI of the GATT 1994 by the United States in a series of notifications
and statements to various official bodies of the WTO. The Panel considers significant the indications
at both the domestic and multilateral levels that the measures at issue related to the United States'
determination of a threat to its national security and the explicit references to Article XXI of the
GATT 1994 as the legal basis under the covered agreements pursuant to which the measures were
sought, taken, or maintained. 416 While the domestic legal status or statements by a Member to
official WTO bodies are not determinative of the legal characterization of measures under the covered
agreements in dispute settlement, the Panel considers such evidence to be relevant within the
context of an objective assessment under Article 11.1(c) of the Agreement on Safeguards. This is
particularly so where there is evidence contemporaneous with the adoption of the measures that is

411 Council for Trade in Goods, Minutes of the Meeting held on 23 and 26 March 2018, G/C/M/131,
(Exhibit USA-81), pp. 26-27.
412 Committee on Safeguards, Communication from the United States, G/SG/168, (Exhibit USA-82),
pp. 1-2 and fn 2.
413 Statement dated 8 May 2018 of the Deputy US Trade Representative and US Permanent
Representative to the WTO, WTO General Council, (Exhibit USA-83), p. 3 (further noting that the United States
did not take action pursuant to Section 201 of the Trade Act of 1974, which is the law under which the
United States imposes safeguard measures).
414 Statements dated 29 October 2018, 21 November 2018, and 4 December 2018 of the United States,
WTO Dispute Settlement Body, (Exhibit USA-84). The United States further stated as follows at this meeting
with respect to Article XXI of the GATT 1994 and the measures at issue:
The United States has given detailed explanations that the measures at issue are justified under
Article XXI of the GATT 1994. In particular, we have explained that these measures are
necessary to address the threatened impairment that these imports of steel and aluminum
articles pose to U.S. national security.
415 Committee on Market Access, Notification Pursuant to the Decision on Notification Procedures for
Quantitative Restrictions (G/L/59/Rev.1), G/MA/QR/N/USA/4, (Exhibit USA-85), p. 6.
416 Given the consistent indications both prior and subsequent to the adoption of the measures at issue,
the Panel finds support for the measures being "sought, taken or maintained" within the meaning of
Article 11.1(c). The Panel notes in this regard the disjunctive nature of these requirements and does not
consider it necessary in the circumstances of this dispute to make separate determinations as to which
evidence reflects the measures having been "sought", "taken", or "maintained" pursuant to a provision of the
GATT 1994 other than Article XIX.

confirmed by other relevant evidence of the measures' design and application. In this dispute, the
features of the measures outlined above indicate that the United States' determination of a threat
to its national security under Section 232 is a central aspect of the measures with respect to their
legal characterization as being sought, taken, or maintained pursuant to Article XXI of the
GATT 1994.417
Regarding the applicability of Article XIX of the GATT 1994 and the Agreement on Safeguards,
China refers to the findings in the Steel and Aluminium Reports pertaining to the adverse impact of
imports on domestic steel and aluminium industries of the United States. In particular, China
highlights that the reports identify increased imports of steel and aluminium to the United States,
determine that there was injury to the domestic steel and aluminium industries due to increased
imports, and examine such injury by reference to factors that are typically associated with a finding
under Article 4.2(a) of the Agreement on Safeguards.418
The Panel notes that the findings in the Steel and Aluminium Reports pertaining to the state
of the United States' domestic steel and aluminium industries, including the decrease in domestic
production, high import penetratio n, low-capacity utilization and declining employment, are made
in the context of the determination by the US Secretary of Commerce that steel and aluminium are
important to the United States' national defen ce requirements and critical infrastructure sector s.
These reports discuss the displacement of domestic steel and aluminium by imports in relation to
the risk that the United States' domestic industries will be rendered incapable of meeting its national
security needs, especially in times of national emer gencies. The Steel and Alumin ium Reports also
recall the direction under Section 232 that the relationship between the weakening of the
United States' internal economy and impairment of its national security shall be determined by
reference to factors including "any substantial unemployment, decrease in revenues of government,
loss of skills or investment, or other serious effects". 419 The reports recommend measures to
increase the capacity utilization of the United States' domestic industries with the specific objective
of enabling them to meet projected national security needs.420
Viewed in their context, the findings in the Steel and Aluminium Reports confirm that the
aspects of the measure s most central to their legal characterization under Article 11.1(c) of the
Agreement on Safeguards concern the national security considerations as reflected in Section 232
and reiterated in the relevant domestic legal acts and instruments. The examination in the Steel and
Aluminium Reports of the state of the domestic steel and aluminium industries is an element of the
United States' determination of a threat to its national security under the relevant domestic laws.
The Panel considers that it would be improper to assess such factors in isolation from the threat to
national security that was determined to exist under Section 232 on the basis of those and other
factors.
Conclusion
In conclusion, the evidence before the Panel in relation to the design and application of the
measures at issue indicates that the measure s were sought, taken, or maintained pursuant to
Article XXI of the GATT 1994. Accordingly, the measures were sought, taken, or maintained pursuant

417 See e.g. Appellate Body Reports, China – Auto Parts, para. 171; Indonesia – Iron or Steel Products,
para. 5.60.
418 China's first written submission, section IV.A.
419 Section 232, (Exhibit CHN-1 and USA-1), § 1862(d); Section 232 regulations, (Exhibit USA-2), §
705.4.
420 See Aluminium Report, (Exhibit CHN-5 and USA-8), p. 107 ("import restrictions could help address
the threat to U.S. national security… [Q]uotas or tariffs would be designed, even after any exemptions (if
granted), to enable U.S. aluminum producers to utilize an average of 80 percent of their production capacity.
The quotas and tariffs described below should be sufficient to enable U.S. aluminum producers to operate
profitably under current market prices for aluminum and will allow them to reopen idled capacity") and 108 ("A
worldwide quota …would help ensure the viability of those U.S. producers to meet national security needs").
See also Steel Report, (Exhibit CHN-4 and USA-7), p. 58 ("Due to the threat of steel imports to the national
security, as defined in Section 232, the Secretary recommends that the President take immediate action by
adjusting the level of imports through quotas or tariffs on steel imported into the United States, as well as
direct additional actions to keep the U.S. steel industry financially viable and able to meet U.S. national
security needs. The quota or tariff imposed should be sufficient, after accounting for any exclusions, to enable
the U.S. steel producers to be able to operate at about an 80 percent or better of the industry's capacity
utilization rate based on available capacity in 2017").

to a provision of the GATT 1994 other than Article XIX within the meaning of Article 11.1(c) of the
Agreement on Safeguards.
The Panel's assessment of the measures being under the purview of Article XXI of the
GATT 1994 is without prejudice to the consistency of the measures with the specific terms and
requirements of Article XXI. The Panel recalls that its conclusions under Article 11.1(c) pertain solely
to the issue of applicability of the Agreement on Safeguards rather than the consistency of the
measures at issue with the requirements of the other provision, namely Article XXI of the
GATT 1994, pursuant to which the measures were sought, taken, or maintained.
7.8 Article XXI(b) of the GATT 1994
Introduction
The United States invokes Article XXI(b) of the GATT 1994 in relation to the measures at
issue as "action[s] which [the United States] considers necessary for the protection of its essential
security interests". The Panel will address the United States' invocation of Article XXI(b) of the
GATT 1994 in relation to whether the measures found to be inconsistent with Articles I:1 and II:1
of the GATT 1994 are "actions" falling within the scope of Article XXI(b) of the GATT 1994.
The Panel will first address the parties' interpretive disagreement on the extent to which the
terms of Article XXI(b) of the GATT 1994 permit review of a Member's in vocation of that provision
in proceedings under the DSU. In doing so, the Panel will address specific issues of interpretation
contested by the parties, including the United States' arguments as to the "self-judging" nature and
"non-justiciability" of Article XXI(b) of the GATT 1994, in accordance with Article 3.2 of the DSU and
customary rules of interpretation of public international law. The Panel will then assess the evidence
and arguments submitted by the parties in relation to the measures found to be inconsistent with
provisions of the GATT 1994 in light of the conclusions reached regarding the interpretation of
Article XXI(b) of the GATT 1994.
Interpretation of Article XXI(b) of the GATT 1994 in accordance with Article 3.2 of
the DSU
Article XXI of the GATT 1994 is entitled "Security Exceptions" and provides:
Nothing in this Agreement shall be construed
(a) to require any contracting party to furnish any information the disclosure of which
it considers contrary to its essential security interests; or
(b) to prevent any contracting party from taking any action which it considers necessary
for the protection of its essential security interests
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such
traffic in other goods and materials as is carried on directly or indirectly for the
purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any contracting party from taking any action in pursuance of its
obligations under the United Nations Charter for the maintenance of international peace
and security.
The United States submits that the Panel should lim it its findings in this dispute to
recognizing the invocation of Article XXI(b) because "[t]he text of [the provision], in its context and
in the light of the agreement's object and purpose, establishes that the exception is self-judging."421
According to t he United States, "[t]he self -judging nature of … Article XXI(b) is demonstrated by

421 United States' first written submission, para. 23.

that provision's reference to actions that the Member 'considers necessary' for the protection of its
essential security interests." 422 Consequently, "the only requirement f or the Member invoking
Article XXI is for the Member to consider that a particular action is necessary to protect its essential
security interests in any of the circumstances identified in Article XXI(b)."423 The United States
maintains that this requiremen t is met "once the Member indicates, in the context of dispute
settlement, that it has made such a determination" that it "consider[s] one or more of the
circumstances set forth in Article XXI(b) to be present".424
A premise of the United States' characterization of Article XXI(b) as "self-judging" is that,
based on "the text and grammatical structure" of the provision, "the phrase 'which it considers'
qualifies all of the terms in the single relative clause that follows the word 'action'". 425 According to
the United States, this "single relative clause" in Article XXI(b) "begins with 'which it considers
necessary' and ends at the end of each subparagraph" and "describes the situation which the
Member 'considers' to be present when it takes such 'action'".426 The United States argues from this
premise that, "[b]ecause the relative clause describing the action begins with 'which it considers',
the other elements of this clause are committed to the judgment of the Member taking the action."427
The United States thus posits an "overall grammatical structure" of Article XXI(b) according to which
a panel may not "determine, for itself, whether a security interest is 'essential' to the Member in
question, or whether the circumstances described in one of the subparagraphs exists".428
China contests the interpretive and grammatical basis of the United States' argument and
emphasizes the objective review in dispute settlement proceedings of terms in Article XXI(b) that
are not qualified by the phrase "which it considers".429 China thus disputes the characterization of
Article XXI(b) as "self-judging" and contends that the measures are not justified under this provision
based on the arguments and evidence before the Panel. In particular, China argues that the
United States' interpretation fails to give effective meaning to the subparagraphs of Article XXI(b)
and is incompatible with the requirements of the DSU concerning the independent review of matters
raised under the covered agreements.430
The Panel recalls that it is required to address the United States' invocation of Article XXI(b)
of the GATT 1994 in accordance with Article 3.2 of the DSU and the customary rules of interpretation
of public international law.431 A threshold point of interpretive disagreement between the parties is
the extent to which the terms of Article XXI(b) of the GATT 1994 permit review of a Member's
invocation of that provision by a panel established under the DSU. While the parties refer to
numerous aspects of treaty interpretation i n relation to this question, both parties base their
positions primarily on the terms of Article XXI(b) of the GATT 1994 and the rule of interpretation set
out in Article 31(1) of the Vienna Convention that "[a] treaty shall be interpreted in good faith in
accordance with the ordinary meaning given to the terms in their context and in the light of its object
and purpose."432 As noted above433, this rule of interpretation forms part of the "customary rules of
interpretation of public international law" referre d to in Article 3.2 of the DSU. 434 Accordingly, the
Panel will examine the ordinary meaning of the terms of Article XXI(b) of the GATT 1994 in their
context and in light of the treaty's object and purpose, focusing on the parties' disagreement as to
whether the terms of the provision permit review of its invocation in proceedings under the DSU.

422 United States' first written submission, para. 25.
423 United States' response to Panel question No. 33.
424 United States' response to Panel question No. 52.a; see also response to Panel question Nos. 35 and
38; second written submission, para. 23.
425 United States' second written submission, paras. 7-8; see also ibid. para. 13 ("the ordinary meaning
of the terms of Article XXI(b) establishes that, contrary to the complainant's arguments, the word 'considers'
qualifies all the terms in the chapeau and the subparagraph endings of Article XXI(b)").
426 United States' response to Panel question No. 36.
427 United States' second written submission, para. 22; see also response to Panel question Nos. 39 and
40 ("The text reserves to the Member the judgment as to whether action is necessary in one or more of those
circumstances for the protection of its essential security interests.").
428 United States' response to Panel question No. 37.
429 See China's response to Panel question Nos. 35-37.
430 See e.g. China's opening statement at the first meeting of the Panel.
431 See section 7.1 above.
432 See China's response to Panel question No. 56; United States' response to Panel question No. 56.
433 See para. 7.68 above. See also Appellate Body Reports, US – Gasoline, p. 17; India – Patents (US),
434 See e.g. Appellate Body Report, US – Gasoline, p. 17.

Pursuant to the security exceptions under Article XXI of the GATT 1994, "[n]othing in this
Agreement shall be construed to require" a Member "to furnish any informat ion" described under
paragraph (a) or "to prevent" a Member "from taking any action" described under paragraphs (b) or
(c) of that provision. The three paragraphs (a) to (c) are separated by semicolons followed by the
word "or" and Article XXI concludes in a full stop at the end of paragraph (c). Paragraph (b) of
Article XXI provides that the "action" that a Member is not prevented from taking is "any action
which [the Member] considers necessary for the protection of its essential security interests",
followed by three subparagraphs that are enumerated (i) to (iii). 435 These subparagraphs are
separated by semicolons and the word "or" appears after the semicolons at the end of paragraph
(a) and subparagraph (iii) of Article XXI(b).436
In providing for "any action" that "[n]othing in this Agreement shall be construed … to
prevent", Article XXI(b) establishes an exception to obligations under other provisions of the
GATT 1994. The "action" covered by this provision is one that a Member "considers necessary for
the protection of its essential security interests". Dictionary definitions of the term "consider" include
to "regard in a certain light or aspect, look upon as" or "think or take to be".437 Under Article XXI(b),
a Member must consider that its action is "necessary for" a defined purpose, namely "the protection
of its essential security interests". Dictionary definitions of "interest" include "the relation of being
involved or concerned as regards potential detriment or (esp.) advantage".438 The relevant interests
under Article XXI(b) pertain to "security", which may be defined as "the condition of being protected
from or not exposed to danger".439 The description of these security interests as "essential" indicates
the heightened significance of the security interests that Members are not prevented from taking
action to protect under Article XXI(b).440 As indicated by the possessive pronoun "its", the relevant
"security interests" are those of the Member taking action under Article XXI(b).441

435 The parties have used different terminology to refer to the different parts of Article XXI, including
"chapeau", "subparagraph", and "subparagraph ending". The Panel considers that such terminology is not
determinative of the proper interpretation so long as it is consistently applied in describing the provision. (See
also China's response to Panel question No. 91; United States' response to Panel question No. 91).
436 The French and Spanish texts are similarly structured with minor differences, including a colon at the
end of paragraph (b) before the three subparagraphs. In addition, the Spanish text contains a colon after the
opening terms of Article XXI before paragraph (a), and in the French text the conjunction "ou" appears at the
beginning of paragraphs (b) and (c).
437 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 493. See also Le
Petit Robert Dictionnaire de la Langue Francaise (2000), p. 921 (defining "estimer" as "[a]voir une opinion sur"
(to have an opinion on), "considérer" (to consider), "croire" (to believe), "regarder" (to regard), or "penser" (to
think)); Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), p. 676 (defining
"estimar" as "creer" (to believe) or "hacer aprecio y estimación de alguien o de algo" (make appreciation or
estimation of someone or something)); and The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.)
(Clarendon Press, 1993), (Exhibit USA-22), p. 485.
438 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 1400 (also defining
"interest" as "[a] thing that is of some importance to a person, company, state"). See also Le Petit Robert
Dictionnaire de la Langue Francaise (2000), p. 1340 (defining "intérêt" as "[c]e qui importe, ce qui convient
(en quelque domaine que ce soit)" (what matters or what suits in any domain)); Diccionario de la Lengua
Española, 22nd Edition (Real Academia Española, 2001), p. 874 (defining "interés" as "[i]nclinación del ánimo
hacia un objeto, una persona, una narración, etc." (inclination of mind towards an object, a person, a
narration, etc.)); and The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.) (Clarendon Press,
1993), (Exhibit USA-22), p. 1393.
439 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 2734. See also Le
Petit Robert Dictionnaire de la Langue Francaise (2000), p. 2310 (defining "sécurité" as "[s]ituation, état
tranquille qui résulte de l'absence réelle de danger" (tranquil situation, state which results from the real
absence of danger)); Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), p.
1385 (defining "seguridad" as "[c]ualidad de seguro" and "seguro" as "[l]ibre y exento de todo peligro, daño o
riesgo" (free and exempt from all danger, damage or risk)); and The New Shorter Oxford English Dictionary,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), (Exhibit USA-22), p. 2754.
440 Dictionary definitions of "essential" include "[t]hat is such in the absolute or highest sense" and
"[a]ffecting the essence of anything; significant, important". See also Le Petit Robert Dictionnaire de la Langue
Francaise (2000), p. 918 (defining "essentiel" as "[q]ui est absolument nécessaire" (absolutely necessary) or
"[l]e plus important" (the most important)); Diccionario de la Lengua Española, 22nd Edition (Real Academia
Española, 2001), p. 655 (defining "esencial" as "[s]ustancial", "principal", or "notable"); and The New Shorter
Oxford English Dictionary, 4th edn, L. Brown (ed.) (Clarendon Press, 1993), (Exhibit USA-22), p. 852.
441 The French and Spanish language versions similarly use the possessive pronouns "sa" and "su"
Lengua Española, 22nd Edition (Real Academia Española, 2001), p. 1424.

Interpreting the terms of Article XXI(b) within the structure and context of the provision as
a whole, the Panel notes the textual separation and indentation under Article XXI of the three
paragraphs and a similar separation and indentation of the three subparagraphs under paragraph
(b) of Article XXI. The introductory terms of Article XXI ("Nothing in this Agreement shall be
construed") form the beginning of a sentence with three alternative endings to this sentence in each
of the paragraphs (a) to (c). Under paragraph (b) of Article XXI, the enumerated subparagraphs
(i) to (iii) are alternative endings to the sentence following the terms "any action which it considers
necessary for the protection of its essential security interests". The punctuation and conjunctions
linking these various parts of Article XXI serve the function of listing the alternative endings to the
provision. These considerations indicate that Article XXI(b) forms part of, and provides in its own
subparagraphs, a list of alternative endings to form a sentence. Therefore, Article XXI(b) is to be
given meaning as a complete sentence with the enumerated subparagraphs (i) to (iii) representing
alternative endings to the sentence that begins "Nothing in this Agreement shall be construed".
In continuation of the sentence formed under Article XXI(b), subparagraphs (i) and (ii) begin
with the terms "relating to" and subparagraph (iii) begins with the terms "taken in time of". The
terms "relating to" indicate a connection to the "materials" and "traffic" in subparagraphs (i) and
(ii), respectively, while the terms "taken in time o f" indicate a temporal relationship to the
circumstances in subparagraph (iii). The Panel understands these opening terms in each
subparagraph to qualify and describe the "action" referred to in Article XXI(b). This is confirmed in
the French and Spanish versions of Article XXI(b) in which the corresponding terms ("se rapportant"
and " appliquées" in French and " relativas" and " aplicadas" in Spanish) qualify nouns that are
feminine and plural translations of "any action" ("toutes mesures" in French and "todas las medidas"
in Spanish). 442 The relation of the opening terms of each subparagraph to the "action" in
Article XXI(b) is further supported by their parallel positioning in the text and their common function
of linking the remaining terms of each subparagraph to those in paragraph (b).
As a result, Article XXI(b) applies to actions "relating to" the "materials" and "traffic"
described in subparagraphs (i) and (ii), respectively, and to actions "taken in time of" the
circumstances referred to in subpara graph (iii). These subparagraphs provide alternative endings
that are an integral part of complete sentences formed under Article XXI(b). Moreover, there is no
textual indication that the sentence endings in the subparagraphs of Article XXI(b) are merely
illustrative or that Article XXI(b) may apply to actions other than those described in the

442 The Panel understands that the parties agree that the subparagraphs qualify and relate to the
"action" in Article XXI(b), notwithstanding some disagreement as to the precise basis for this conclusion. The
United States submits in this regard that, under "[t]he most natural reading" of Article XXI(b), subparagraphs
(i) and (ii) relate to a Member's "essential security interests" whereas subparagraph (iii) modifies "action" that
is "taken" by a Member. At the same time, the United States considers that "an interpretation that best
reconciles the idiosyncratic Spanish text with the English and French texts" is one in which the "action" is
modified by the terms following it and "all three subparagraph endings refer to 'any action which it considers'."
(United States' response to Panel question Nos. 39 and 40; see also second written submission, paras. 17-19).
Under this reading, the United States argues that the terms of the provision still form a "single relative clause"
in which the phrase "which it considers" modifies the entirety of the subparagraphs. (United States' response
to Panel question Nos. 41-43; United States' second written submission, paras. 3 and 83-84; United States'
opening statement at the second meeting of the Panel, paras. 8-9). China contests the grammatical basis of
the United States' argument on a "single relative clause" in Article XXI(b) and argues that the subparagraphs
qualify the term "action". (See e.g. China's response to Panel question Nos. 40 and 90).
For the purposes of resolving the contested issues of interpretation under Article XXI(b) in this dispute,
the Panel considers that it is sufficient to conclude that the term "action" is qualified by the subparagraphs, as
supported by the textual analysis in this section and the concordance of plural and feminine terms in the
French and Spanish versions of Article XXI(b). The Panel notes the United States' argument on the
reconciliation of texts under Article 33 of the VCLT relates to its contentions regarding a "single relative clause"
in Article XXI(b) and the "self-judging" nature of the provision, which the Panel addresses in this section in
accordance with Article 3.2 of the DSU and its mandate to make such findings as will assist the DSB in making
the recommendations or rulings provided for in the covered agreements. To the extent that the comparison of
authentic texts discloses any difference in meaning under Article 33(4) of the VCLT, the Panel considers that
the application of Articles 31 and 32 of the VCLT removes any such difference so as to resolve the contested
issues of interpretation in this dispute. Accordingly, the Panel does not consider it necessary for the purposes
of this dispute to address in further detail the parties' arguments on the reconciliation of authentic texts in
relation to the contested issues of interpretation under Article XXI(b) and its application to the measures at
issue in this dispute.

subparagraphs.443 These considerations indicate that the subparagraphs are exhaustive in
establishing the circumstances in which a Member may take the "action which it considers necessary
for the protection of its essential security interests" within the meaning of Article XXI(b).444
Regarding the discretion of Members taking "action" under Article XXI(b), the parties
acknowledge the deference accorded to a Member's judg ment for "any action which it considers
necessary for the protection of its essential security interests". 445 The terms "which it considers"
denote the consideration or judgment of the Member taking action under Article XXI(b)446, which is
further reinforced by providing that the Member shall not be prevented from taking "any" action
within the terms of the provision.447 Regarding the extent of discretion accorded by the terms "which
it considers", the parties disagree as to what precisely in Article XXI(b) is qualified by these terms
and the implications of such qualification for the review of a Member's invocation of Article XXI(b)
in dispute settlement proceedings. In particular, the parties dispute whether the three enumerated
subparagraphs (i) to (iii) of Article XXI(b) are qualified by the terms "which it considers" and,
relatedly, how to interpret those subparagraphs in accordance with the requirements of the DSU. A
specific question in this regard is whether, as argued by the United States and contested by China448,
the clause beginning with the relative pronoun "which" constitutes a "single relative clause" that
includes the terms in subparagraphs (i) to (iii) of Article XXI(b).
The Panel notes that the United States submits certain reference materials on English
grammar in support of its contention that the subparagraphs of Article XXI(b) form part of a "single
relative clause" that is entirely reserved to the judgment of the Member taking action under the
provision.449 Due to the grammatical dimension of the United States' arguments concerning the
"single relative clause" in Article XXI(b), the Panel examines the grammatical construction of the
provision in relation to the contested issue of whether the subparagraphs of Article XXI(b) are
qualified by the terms "which it considers". The grammatical considerations raised by the parties
reinforce the Panel's preceding textual analysis of Article XXI(b) and are addressed insofar as they
may inform the assessment of the ordinary meaning of the terms in their context.
The grammatical analysis of Article XXI(b) for the purposes of this dispute particularly
concerns the relationship between various phrases and clauses within the overall sentence structure

443 The subparagraphs of Article XXI(b) of the GATT 1994 may be contrasted with other provisions of the
covered agreements containing terms that explicitly indicate the illustrative nature of the provisions. (See e.g.
Article 2.2 of the TBT Agreement ("such legitimate objectives are, inter alia, national security requirements
…"); Article 3.5 of the Anti-Dumping Agreement ("factors which may be relevant [for determining injury]
include, inter alia, the volume and prices of imports …"); Article 1.1(a)(1) of the SCM Agreement ("a direct
transfer of funds (e.g. grants, loans and equity infusion)"); and Annex I to the SCM Agreement ("Illustrative
List of Export Subsidies")).
444 The Panel notes the agreement of parties as to the exhaustive nature of subparagraphs of
Article XXI(b), notwithstanding their disagreement on the implications of this for review in by a panel
established under the DSU. (See China's response to Panel question No. 39; United States' response to Panel
question Nos. 39 and 40). For example, the United States argues that the subparagraphs of Article XXI(b)
"form an integral part of the provision in that they complete the sentence begun in the chapeau, establishing
three exhaustive circumstances in which a Member may act". At the same time, the United States maintains
that "[t]he fact that these circumstances are exhaustive, however, does not mean that the Member's
invocation of Article XXI(b) is subject to review." (United States' response to Panel question Nos. 39 and 40).
445 China's response to Panel question No. 35; United States' response to Panel question No. 35.
446 The French and Spanish language versions of Article XXI(b) respectively use the phrases "qu'elle
estimera" and "que estime", indicating the estimation or consideration of the Member taking action under that
Article. See Le Petit Robert Dictionnaire de la Langue Francaise (2000), p. 824 and Diccionario de la Lengua
Española, 22nd Edition (Real Academia Española, 2001), p. 1270.
447 The terms corresponding to "any action" in Article XXI(b) in the French and Spanish versions are
"toutes mesures" and "todas las medidas", which may be understood as all measures. See Le Petit Robert
Dictionnaire de la Langue Francaise (2000), pp. 2551-2552; and Diccionario de la Lengua Española, 22nd
Edition (Real Academia Española, 2001), pp. 1485-1486.
448 China's response to Panel question No. 90.
449 The Panel notes that the parties' arguments concerning the grammar of Article XXI(b) focus on the
English text of the provision, and the Panel accordingly focuses its assessment on the English text and the
specific reference materials on English grammar submitted by the parties. The Panel does not make any
determination as to the status or authority of such reference materials but rather refers to them as relevant to
addressing the parties' arguments and describing the grammatical construction of Article XXI(b).

of the provision.450 As noted above, Article XXI begins a sentence that is completed by the terms of
paragraph (b) and the alternative endings in the subparagraphs thereunder. The opening terms of
Article XXI form a clause beginning with the terms "Nothing in this Agreement" and ending with the
terms "any action" in paragraph (b). This clause can be characterized as an independent clause in
that it contains a subject ("Nothing") and predicate ("shall be construed to prevent any Member
from taking any action") that can stand alone as a complete sentence.451
Following this independent clause, the relative pronoun "which" in Article XXI(b) begins a
relative clause that can be grammatically characterized as a dependent clause in the sense that it is
a group of words with a subject a nd verb that, unlike an independent clause, cannot stand on its
own as a complete sentence.452 This relative clause is grammatically subordinate to the independent
clause at the beginning of Article XXI that ends with the word "action" in paragraph (b), qua lifying
the noun "action" to describe the action that a Member may take notwithstanding the obligations
under the GATT 1994.453 The pronoun "it" refers to the Member taking action under Article XXI(b)
and is the subject of this relative clause. The verb "co nsiders" is followed by an immediate object
("necessary") that is further modified by a prepositional phrase ("for the protection of") and noun
phrase ("its essential security interests").454
Each of the subparagraphs of Article XXI(b) begins with a participle that forms the beginning
of a participle phrase. 455 Specifically, subparagraphs (i) and (ii) begin with the present participle
"relating" and subparagraph (iii) begins with the past participle "taken". As these participles qualify
the noun "action"456, the terms following each participle function as adjectives describing the "action"
under Article XXI(b) and thus can be characterized as participle or adjectival phrases qualifying that
noun.457

450 A "clause" in this context has been defined as "a group of words containing both a subject and a
predicate" that "functions as an element of a compound or complex sentence". A "phrase", by contrast, is "a
brief expression that consists of two or more grammatically related words but that does not constitute a
clause" (i.e. does not contain a noun and a verb). (Merriam-Webster's Guide to Punctuation and Style
(Merriam-Webster, Incorporated, 1995), (Exhibit USA-95), pp. 231 and 233).
451 See W. Strunk Jr. and E.B. White, The Elements of Style, 4th edn (Allyn and Bacon, 1999), (Exhibit
USA-226), pp. 91 and 93 (an "independent clause" is "[a] group of words with a subject and verb that can
stand alone as a sentence". A "predicate" refers to "[t]he verb and its related words in a clause or sentence"
and "expresses what the subject does, experiences, or is"). According to the United States, through the
language in this independent clause, "Article XXI(b) creates an exception to the obligations in the
[GATT 1994]". (See United States' response to Panel question No. 90).
452 S. Greenbaum, English Grammar (Oxford University Press, 1996), (Exhibit USA-93), p. 631 (a
"relative clause" is used to "postmodify nouns" and is "introduced by a relative item" such as the relative
pronoun "which"); R. Flesch and A.H. Lass, The Classic Guide to Better Writing (HarperPerennial, 1996),
(Exhibit USA-94), p. 69 ("[w]ho and which are called relative pronouns and introduce relative clauses". Using
these relative pronouns "[makes] an independent clause into a relative or dependent clause – a group of words
that can't stand by itself") (emphasis omitted); and W. Strunk Jr. and E.B. White, The Elements of Style, 4th
edn (Allyn and Bacon, 1999), (Exhibit USA-226), p. 91 (a "dependent clause" is "subordinate to an
independent clause in a sentence" and begins with either a subordinating conjunction or a relative pronoun
such as "which".) (emphasis omitted).
453 See e.g. S. Greenbaum, English Grammar (Oxford University Press, 1996), (Exhibit USA-93), p. 631
(a "relative clause" is used to "postmodify nouns"); Merriam-Webster's Guide to Punctuation and Style
(Merriam-Webster, Incorporated, 1995), (Exhibit USA-95), p. 233 (a subordinate clause "cannot stand alone,
and must be either preceded or followed by a main clause"); and W. Strunk Jr. and E.B. White, The Elements
of Style, 4th edn (Allyn and Bacon, 1999), (Exhibit USA-226), p. 95 (a "subordinate clause" is a "clause
dependant on the main clause in a sentence").
454 See Merriam-Webster's Guide to Punctuation and Style (Merriam-Webster, Incorporated, 1995),
(Exhibit USA-95), p. 232 (a "noun phrase" consists of "a noun and its modifiers" whereas a "prepositional
phrase" consist of "a preposition and its object"); W. Strunk Jr. and E.B. White, The Elements of Style, 4th edn
(Allyn and Bacon, 1999), (Exhibit USA-226), p. 93 (a prepositional phrase is "[a] group of words consisting of a
preposition, its object, and any of the object's modifiers").
455 See Merriam-Webster's Guide to Punctuation and Style (Merriam-Webster, Incorporated, 1995),
(Exhibit USA-95), p. 232 (a "participial phrase includes a participle and functions as an adjective"); W. Strunk
Jr. and E.B. White, The Elements of Style, 4th edn (Allyn and Bacon, 1999), (Exhibit USA-226), p. 93 (a
"participial phrase" is "[a] present or past participle with accompanying modifiers, objects, or complements").
456 See para. 7.112 above.
457 See Merriam-Webster's Guide to Punctuation and Style (Merriam-Webster, Incorporated, 1995),
(Exhibit USA-95), pp. 232-233 ("[a] participle phrase includes a participle and functions as an adjective". An
"adjective clause modifies a noun or pronoun and normally follows the word it modifies").

The Panel does not consider that the grammatical construction of Article XXI(b) definitively
resolves whether the subparagraphs are qualified by the phrase "which it considers" as part of a
"single relative clause" in the manner contended by the United States. The adjectival phrases in the
subparagraphs of Article XXI(b) could be regarded as continuations of the relative clause that begins
with the relative pronoun "which" in the sense that they provide alternative endings to the sentence
formed under the provision. However, this does not necessarily compel the conclu sion that the
subparagraphs form part of a "single relative clause" in the sense argued by the United States that,
"[b]ecause the relative clause describing the action begins 'which it considers', the other elements
of this clause are committed to the judgment of the Member taking the action."458 In support of its
view that, under the ordinary meaning of the English text of Article XXI(b), subparagraphs (i) and
(ii) modify the phrase "essential security interests" 459, the United States refers to rules of English
grammar according to which "an adjectival phrase normally follows the word it modifies or is
otherwise placed as closely to the word it modifies". 460 According to this argument, the adjectival
phrases in the subparagraphs of Article XXI(b) would thus be part of the relative clause that begins
with the word "which" and would modify the terms in that relative clause that appear closest to the
subparagraphs.
The grammatical references cited by the United States do not indicate a cat egorical rule
according to which the relative clause in Article XXI(b) that begins "which it considers" must contain
and qualify any following adjectival phrase (i.e. those contained in the subparagraphs). Indeed, the
United States acknowledges a deviation in Article XXI(b) from the general rule it cites as "the
drafters departed from typical English usage" in subparagraph (iii) by placing the adjectival phrase
in that subparagraph next to "essential security interests", rather than next to the term modified by
that adjectival phrase ("action"). 461 With respect to the interpretation of Article XXI(b), the
qualification of the noun "action" in paragraph (b) by the participle phrases in the subparagraphs is
not solely determined by rigid application of grammar but follows from the ordinary meaning of
these terms, notwithstanding the existence of a relative clause in paragraph (b) between the noun
"action" and textually discrete adjectival phrases qualifying that "action".
The foregoing considerations reflect the potential limitations of a purely grammatical analysis
of the terms of Article XXI(b) and the significance of additional interpretive considerations in
ascertaining the ordinary meaning of the terms in their context. In addressing the parties' dispute
as to the interpretation of Article XXI(b) of the GATT 1994, the Panel is mindful of the principle of
effective treaty interpretation according to which all terms of a treaty are to be given meaning and
effect. Relatedly, the terms used in a treaty must not be reduced to redundancy or inutility.462 The
meaning and effect of the subparagraphs derives not only from considerations of grammatical
qualification but also the specific terms used within the overall structure of the provision.
Characterizing the subpar agraphs as part of a "single relative clause", even if grammatically
permissible, does not account for the ordinary meaning of actions "relating to" specified "materials"
and "traffic" and to actions "taken in time of" specified circumstances. Nor does it account for the
structure of Article XXI(b) and the textual separation of the subparagraphs into an enumerated list,
which corresponds to the role of the subparagraphs as alternative sentence endings that collectively
delimit the scope of Article XXI(b).
The Panel notes the United States' argument that Article XXI(b) "should be read as a single
clause and not as introducing separate conditions".463 Further, the United States cautions against an
approach that would "atomize this single relative clause" because "[a]rtificially separating the words
'which it considers necessary' from the language that immediately follows and continues the clause

458 United States' response to Panel question No. 36.
459 See fn 442 above.
460 United States' response to Panel question No. 90 (referring to Merriam-Webster's Guide to
Punctuation and Style (Merriam-Webster, Incorporated, 1995), (Exhibit USA-176), pp. 232-233 ("[t]he
adjective clause modifies a noun or pronoun and normally follows the word it modifies" and "[u]sage problems
with phrases occur most often when a modifying phrase is not placed close enough to the word or words that it
modifies") and S. Benedict (ed.), Harper's English Grammar (Harper & Row, 1966), (Exhibit USA-96), p. 186
("adjectives and adverbial phrases, like adjectives and adverbs themselves should be placed as closely as
possible to the words they modify")).
461 United States' response to Panel question No. 90.
462 See e.g. Appellate Body Reports, US – Gasoline, p. 23; Japan – Alcoholic Beverages II, p. 12; India –
Patents (US), para. 45.
463 United States' response to Panel question No. 40.

– for the protection of – would erroneously interpret certain terms of Article XXI(b) in isolation."464
In the Panel's view, giving meaning and effect to the terms of the subparagraphs does not entail
reading them in isolation from the other terms of Article XXI(b) or "introducing separate conditions"
beyond what is reflected in the terms themselves.465 The terms of Article XXI(b) grant discretion to
Members for actions that they "consider necessary for the protection of their essential security
interests" while also enumerating circumstances and conditions under which that discretion may be
exercised.466 The right to take action under Article XXI(b) thus consists of an express provision of
deference to a Member's consideration that is complemented by subparagraphs that must be given
meaning and effect according to the ordinary meaning of their terms.467
The Panel finds relevant context for the interpretive issues raised in this dispute in the
provisions of the GATT 1994 concerning consultation and potential recourse in cases of nullification
or impairment, as well as the rules and procedures of the DSU, noting that these agreements are
both "integral parts of [the WTO] Agreement, binding on all Members". 468 Article XXII o f the
GATT 1994 provides for consultation "with respect to any matter affecting the operation of this
Agreement" and Article XXIII of the GATT 1994 addresses nullification or impairment of "any benefit
accruing to [a Member] under this Agreement". The DSU elaborates upon these provisions 469 and
establishes the rules and procedures applicable to disputes concerning the covered agreements in
Appendix 1 of the DSU. Neither the relevant provisions of the GATT 1994 nor the DSU make any
explicit reference to Article XXI of the GATT 1994 or the potential review of its invocation in dispute
settlement proceedings.470 In the absence of any special or additional rule of dispute settlement
concerning Article XXI(b) of the GATT 1994, any review of its invocation must be c arried out in
accordance with the DSU as a function of the terms of the provision interpreted in accordance with
customary rules of interpretation of public international law.
The Panel finds further guidance in the object and purpose as expressed in the preamble of
the WTO Agreement "to develop an integrated, more viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization
efforts, and all of the results of the Uruguay Ro und of Multilateral Trade Negotiations". In addition,
the preambles of both the WTO Agreement and the GATT 1994 refer to the desire to contribute to
the objectives of these agreements "by entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the
elimination of discriminatory treatment in international trade relations". 471 In furtherance of these
objectives, the WTO Agreement establishes a legal framework of rights and obligations that includes

464 United States' response to Panel question No. 36; see also second written submission, para. 8.
465 The United States draws the Panel's attention to commentaries of the International Law Commission
that, "[p]roperly limited and applied, the maxim [of effective treaty interpretation] does not call for an
'extensive' or 'liberal' interpretation in the sense of an interpretation going beyond what is expressed or
necessarily to be implied in the terms of the treaty." (United States' response to Panel question No. 47 citing
Draft Articles on the Law of Treaties with commentaries, Yearbook of the International Law Commission, 1966,
Vol. II, (Exhibit USA-23), p. 219). The Panel agrees that the rule of effectiveness requires that treaty
interpretation neither expand nor diminish the actual terms used. In the present case, the Panel does not
consider its interpretation to require any addition to the terms of Article XXI(b), as the effectiveness of the
subparagraphs derives from their existing terms read within the overall structure of the provision. (See
United States' response to Panel question No. 36, paras. 134-135 (arguing that the subparagraphs would
require additional terms at the beginning of the subparagraphs to establish their separation from the relative
clause beginning with "which it considers")).
466 The Panel notes that the scope of the circumstances set out in the subparagraphs does not detract
from a Member's consideration that action within the scope of the subparagraphs is necessary "for" a specific
purpose and that the Member's action pertain to "its" interest. (See United States' response to Panel question
No. 36).
467 In this sense, the United States' view that "the subparagraphs guide a Member's exercise of its rights
under this provision" is compatible with the delimiting function served by the subparagraphs to define the
circumstances and conditions under which action may be taken, "while reserving to the Member the judgment
whether particular action is necessary to protect its essential security interests". (United States' first written
submission, para. 34 (emphasis added); see also Response to Panel question No. 35).
468 Article II:2 of the WTO Agreement.
469 Pursuant to Article 3.2 of the DSU, "Members affirm their adherence to the principles for the
management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947, and the rules and
procedures as further elaborated and modified herein."
470 Appendix 2 of the DSU does not provide any special or additional rules applying to disputes in which
Article XXI of the GATT 1994 is invoked.
471 The preamble of the GATT 1994 refers to "international commerce" instead of "international trade
relations".

the rules and procedures applicable to disputes concerning the covered agreements in the DSU. The
DSU "serves to preserve the rights and obligations of Members under the covered agreements" 472
and "[r]ecommendations or rulings m ade by the DSB shall be aimed at achieving a satisfactory
settlement of the matter in accordance with the rights and obligations under [the DSU] and the
covered agreements".473 The rules and procedures of the DSU are thus intended to maintain the
balance be tween the rights and obligations of the Members 474 as embodied in the covered
agreements and the relevant provisions thereof raised by the parties to proceedings under the DSU.
The provision of relevance to this dispute, Article XXI(b) of the GATT 1994, establishes a
right to take action for the protection of a Member's essential security interests and explicitly
enumerates conditions in the subparagraphs that are an integral part of that right. The absence of
explicit provision or elaboration in Article XXI(b) of the GATT 1994 as to whether and how its
invocation may be reviewed does not, in itself, preclude or otherwise determine the review of that
provision in dispute settlement proceedings.475 Rather, the scope and nature of such review derives
from the terms of Article XXI(b) of the GATT 1994 and requirements of the DSU established under
the WTO Agreement, which acknowledges inter alia the role of the WTO dispute settlement system
in "providing security and predictability to the multilateral trading system".476 If Article XXI(b) of the
GATT 1994 is raised in dispute settlement proceedings, the DSU requires that it be addressed in
accordance with the terms of the provision itself and within an objective assessment of the relevant
measures and claims to make findings that will assist the DSB to make recommendations provided
for in the covered agreements.
In addition to the relevant text, context, and object and purpose of the covered agreements,
the parties have referred to various other materials regarding the interpretation of Article XXI(b) of
the GATT 1994. These materials include: (a) negotiating history of Article XXI of the GATT 1947 and
preparatory works of the Havana Charter for the International Trade Organization (ITO); (b) internal
documents of the US delegation to the negotiation of the ITO draft charter and GATT 1947; (c) GATT
Council Decisions under the GATT 1947; (d) views expressed by GATT contracting parties prior to
the creation of the WTO; and (e) negotiating history of the Uruguay Round. Both parties contend
that these materials provide support for their primary arguments on the te rms of Article XXI(b) of
the GATT 1994 and the rule of interpretation in Article 31(1) of the Vienna Convention.477 In
Appendix B to this Report, the Panel addresses the parties' arguments on the relevance of these
materials to the interpretation of Article XXI(b) of the GATT 1994.
As detailed in Appendix B, these materials do not provide clear guidance regarding the
contested issues in this dispute, particularly concerning the scope and nature of the review of a
Member's invocation of Article XXI(b) of the GATT 1994 in proceedings under the DSU. In addition
to questions on the precise legal status of these materials for the purpose of treaty interpretation,
the Panel does not find any clear indication in these materials of the "self -judging nature" or "non-
justiciability" of Article XXI(b) of the GATT 1994 as contended by the United States.478 Rather, the
Panel finds these materials to support the general conclusion that the terms of Article XXI(b) of the
GATT 1994 establish a right to take action for the pro tection of essential security interests in the
conditions and circumstances described in the three subparagraphs.
In conclusion, the entirety of Article XXI(b) of the GATT 1994 is to be given meaning and
effect in a manner that preserves the right and discretion of a Member to take action it considers
necessary for the protection of its essential security interests under the conditions and circumstances
described in subparagraphs (i) to (iii). The Panel does not consider that Article XXI(b) of the
GATT 1994 is "self-judging" or "non-justiciable" in the sense argued by the United States, nor that
the provision contains a "single relative clause" that wholly reserves the conditions and
circumstances of the subparagraphs to the judgment of the invoking Mem ber. In light of this

472 Article 3.2 of the DSU.
473 Article 3.4 of the DSU.
474 See Article 3.3 of the DSU.
475 The Panel notes that the invocation of Article XX of the GATT 1994 titled "General Exceptions" has
been reviewed in WTO dispute settlement proceedings notwithstanding the absence of an explicit provision in
Article XX on whether and how its invocation may be reviewed.
476 Article 3.2 of the DSU.
477 China's response to Panel question No. 56; United States' response to Panel question No. 56.
478 See United States' first written submission, paras. 47, 56, and 106.

conclusion and in accordance with relevant requirements of the DSU, the Panel turns to assess the
United States' invocation of Article XXI(b) of the GATT 1994 in relation to the measures at issue.
Assessment of the measures at issue
The Panel will assess whether the measures found to be inconsistent with Articles I:1 and
II:1 of the GATT 1994 were taken under the conditions and circumstances described in the
subparagraphs of Article XXI(b) of the GATT 1994.479
As an initial matter, the Panel notes the objections by the complainant to the manner and
timeliness of the United States' defence under Article XXI(b)(iii), including concerns regarding due
process and the Panel's independent assessment of the evidence and arguments on the record.480
The Panel considers that the parties' due process rights have been fully maintained in these
proceedings, during which the Panel has endeavoured to provide ample time and opportunity to
address any evidence or arguments raised by the other party. 481 Moreover, the Panel has engaged
with such evidence and arguments in written questions and substantive meetings in order to fulfil
its mandate under the DSU to make an objective assessment of the matter referred to the DSB and
to make such findings as will assist the DSB in making the recommendations or in giving the rulings
provided for in the covered agreements.482
The United States has presented its specific arguments on the challenged measures subject
to its interpretive argument that Article XXI(b) is entirely "self-judging" and imposes no requirement
to explain or identify a relevant circumstance in subparagraphs (i) to (iii).483 Although the
United States has focused its arguments on the interpretation of Article XXI(b) and the discretion
accorded by its terms to Members, it has also submitted an extensive record of material relating to
the measures at issue. Of particular note in this context are the Steel and Aluminium Reports of the
USDOC and Presidential Proclamations setting out the legal basis under Section 232 for taking action
on steel and aluminium products. As described below, the United States has also elaborated its
position throughout the cours e of the proceedings concerning the measures at issue and, in
particular, the existence of an "emergency in international relations" within the meaning of
Article XXI(b)(iii) "in time of" which the measures were taken.
The United States' first written submission focused on the argument that Article XXI of the
GATT 1994 is "self-judging" as a defence against WTO -inconsistencies and that its invocation by a
Member is "non-justiciable" in WTO dispute settlement proceedings. Following the first substantive
meeting, the United States argued that "publicly available information" concerning its measures
"could be understood to relate most naturally to the circumstance described in Article XXI(b)(iii)".484
At the same time, the United States maintained its interpretive view that it is not necessary under
Article XXI for any Member to provide details relating to its invocation of the exception, nor "to

479 In light of the Panel's conclusion on the interpretation of Article XXI(b) and the arguments of the
parties in this dispute, the Panel considers it appropriate to focus its assessment of the measures at issue on
subparagraph (iii) and whether the measures were "taken in time of war or other emergency in international
relations". The Panel notes that previous panels have assessed measures under Security Exceptions for "action
which [a Member] considers necessary for the protection of its essential security interests" beginning with the
relevant subparagraph of the provision at issue. (See Panel Reports, Russa – Traffic in Transit, paras. 7.108-
7.109; Saudi Arabia – IPRs; para. 7.242).
480 See China's response to Panel question No. 71; comments after the second meeting of the Panel.
481 For example, at the closing of the second substantive meeting, the Panel indicated that the parties
would have an opportunity to provide written comments on any issue raised during the meeting, including
arguments on Article XXI(b)(iii) made during closing statements. The parties were accordingly invited to
provide written comments following the second substantive meeting and given an opportunity to make any
additional comments in response. The Panel considers the procedural arrangements in this dispute, including
the overall time given to the parties for written submissions and comments, to have afforded the parties
adequate opportunity to be heard and to respond to arguments made by the other party as required for the
protection of their due process rights. (See Appellate Body Report, Thailand – Cigarettes (Philippines),
para. 147).
482 See e.g. Appellate Body Reports, US – Shrimp, para. 106; EC and certain member states – Large
483 See e.g. United States' response to Panel question No. 92.
484 United States' second written submission, para. 24.

identify the relevant subparagraph ending to that provision that an invoking Member may consider
most relevant".485
The United States subsequently elaborated its arguments regarding the measures at issue
based on its interpretation of an "other emergency in international relations" as meaning "a situation
of danger or conflict, concerning political or economic contact oc curring between nations, which
arises unexpectedly and requires urgent attention". 486 In particular, the United States argued that
"the extensive findings in the steel and aluminum reports are consistent with the United States
considering the measures at is sue to be taken 'in time of war or other emergency in international
relations'."487 The United States cited various findings in the Steel and Aluminium Reports and
argued that "the findings cited above relating to the threatened impairment of national secur ity by
steel and aluminum imports, and the global crisis circumstances under which such importations were
occurring, are consistent with the United States considering that an 'other emergency in
international relations' exists – that is, a situation of dan ger or conflict, concerning political or
economic contact occurring between nations, which arises unexpectedly and requires urgent
attention."488
In its closing statement at the second substantive meeting, the United States argued that,
"even on the complainant's understanding of Article XXI(b) as not self-judging, … [t]he record before
the Panel demonstrates that the United States considers the measures at issue to be necessary for
the protection of its essential security interests and taken 'in time of war or other emergency in
international relations'."489 The United States referred to findings in the Steel Report on "whether an
emergency related to steel excess capacity exists" to comment that, "in 2017, it emerged that global
efforts to address these crises would be insufficient. While the DOC steel report noted that the excess
capacity crisis is a global problem that steel-producing nations have committed to 'work together on
possible solutions,' the report observed the limits of the global efforts, including the work of the
Global Forum on Steel Excess Capacity."490 The United States argued that "what the DOC steel report
conveys is that the United States was at a crucial point [and] that without immediate action, the
steel industry could suffer damages that may be difficult to reverse and reach a point where it cannot
maintain or increase production to address national emergencies."491 The United States additionally
argued that "[a]n industry facing 'fundamental changes' brought on by a 'production revolution' can
certainly lead to unexpected developments, particularly when that industry is facing an 'acute'
situation of global excess capacity that is the highest in the industry's history."492
The Panel notes that the United States has referred to appendices in the Steel and Aluminium
Reports concerning global excess capacity in connection with the existence of an "emergency in
international relations" under Article XXI(b)(iii).493 In addition, the United States has referred to the

485 United States' second written submission, para. 23. According to the United States, its invocation of
Article XXI(b) indicated its consideration "that any or all of the three circumstances described in the
subparagraphs are present", and whatever burden of proof attached to Article XXI(b) "is discharged once the
Member indicates, in the context of dispute settlement, that it has made such a determination" that it
"consider[s] one or more of the circumstances set forth in Article XXI(b) to be present". (United States'
response to Panel question Nos. 50 and 52. See also United States' second written submission, para. 40).
486 See United States' response to Panel question No. 92.
487 United States' response to Panel question No. 92, para. 42.
488 United States' response to Panel question No. 92, para. 49.
489 United States' closing statement at the second meeting, para. 49. (emphasis original)
490 United States' closing statement at the second meeting, paras. 55-56.
491 United States' closing statement at the second meeting, para. 58. The United States also argued that
"the situation at issue did arise unexpectedly and remained an 'emergency in international relations' when the
measures were taken. The confluence of events in 2017 made the emergency even more pressing to address
for the United States." (United States' closing statement at the second meeting, para. 55).
492 United States' closing statement at the second meeting, para. 59. The United States cited the
following passages in G20, Global Forum on Steel Excess Capacity Report (30 November 2017), (Exhibit USA-
239): "The situation of excess steelmaking capacity 'has become particularly acute since 2015'; 'the steel
industry will have to adjust in response to fundamental changes in economic activity brought on by the 'next
production revolution.'" (Ibid. p. 2); "In 2016, the global surplus in steelmaking capacity is estimated to have
reached around 737 million metric tonnes, the highest level seen in the history of the steel industry. If the
announced capacity expansions until 2020 take place, this excess capacity will further increase". (Ibid. p. 4).
493 See United States' response to Panel question No. 92, para. 45; (referring to Steel Report, (Exhibit
CHN-4 and USA-7), Appendix L: "Global Excess Capacity in Steel Production" and its commentary on OECD
analyses and the policy recommendations from the Global Forum on Steel Excess Capacity); United States'
comments on comments after the second meeting of the Panel, para. 22 (referring to Aluminium Report,
(Exhibit CHN-5 and USA-8), Appendix E "Global Excess Aluminum Production").

G20 Global Steel Forum Report of 2017 that describes the situation of excess steelmaking capacity
as "particularly acute since 2015" and addresses the outlook of global steelmaking capacity. 494
Further, the United States refers to remarks of the EU Commissioner for Trade at the OECD High -
Level Symposium on Steel expressing concerns on steel overcapacity.495 The United States has also
referred to a statement of the chairperson of the OECD Ministerial Council Meeting in 2018 that
OECD members "share the view that severe excess capacity in key sectors such as steel and
aluminium are serious concerns for the proper functioning of international trade, the creation of
innovative technologies and the sustainable growth of the global economy" and "stress the urgent
need to avoid excess capacity in … sectors such as aluminium and high technology." 496 The
United States additionally refers to the Charlevoix G7 Summit Communiqué which "stressed the
urgent need to avoid excess capacity" in the aluminium sector.497
The Panel will assess the evidence and arguments submitted in this dispute in accordance
with the requirement under Article 11 of the DSU to make "an objective assessment of the facts of
the case and the applicability of and conformity with the relevant covered agreements". In addition
to the interpretive conclusions reached above 498, the Panel's assessment will be based on an
interpretation of the terms of subparagraph (iii) of Article XXI(b) in accordance with Article 3.2 of
the DSU and customary rules of interpretation of public international law. Based on this
interpretation as well as the evidence and arguments submitted by the parties, the Panel will assess
whether the "action[s] which [the United States] considers necessary for the protection of its
essential security interests" were taken under the circumstances described in the subparagraphs of
Article XXI(b)(iii) of the GATT 1994.
Under subparagraph (iii) of Article XXI(b), a Member may take action which it considers
necessary for the protection of its essential security interests "in time of war or other emergency in
international relations". Dictionary definitions of the term "emergency" include "[a] situation, esp.
of danger or conflict, that arises unexpectedly and requires urgent attention", "a condition requiring
immediate treatment", or a "pressing need". 499 The relevant emergency within the meaning of
subparagraph (iii) must be "in international relations". The term "relations" may be defined as "[t]he
various ways by which a country, State, etc., maintains political or economic contact with
another"500, while the term "international" may be defined as "[e]xisting, occurring, or carried on
between nations; pertaining to relations, communications, travel, etc., between nations ".501 The
phrase "international relations" may thus be understood to mean interactions between nations or
national governments. 502 The terms of Article XXI(b)(iii) appear to distinguish the relev ant
emergency under that subparagraph from an emergency in purely domestic or national affairs and
indicate the "international" character of the emergency in time of which Members are not prevented
from taking action under Article XXI(b).
The term "war" p recedes the phrase "or other emergency in international relations" in
subparagraph (iii) of Article XXI(b) and provides immediate context for its interpretation. Dictionary
definitions of "war" include "[h]ostile contention by means of armed forces, carrie d on between
nations, states, or rulers, or between parties in the same nation or state; the employment of armed

494 See G20, Global Forum on Steel Excess Capacity Report (30 November 2017), (Exhibit USA-239);
United States' closing statement at the second meeting of the Panel, para. 59.
495 See Remarks dated 18 April 2016 of C. Malmström, "Way ahead for the global steel industry", OECD
High-Level Symposium on Steel, (Exhibit USA-240); United States' closing statement at the second meeting of
the Panel, para. 60.
496 United States' comments on comments after the second meeting of the Panel, para. 25.
497 United States' comments on comments after the second meeting of the Panel, para. 25.
498 See section 7.8.2 above.
499 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 814. See also
United States' response to Panel question No. 51 (referring to The New Shorter Oxford English Dictionary,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), (Exhibit USA-86), p. 806).
500 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 2520. See also
United States' response to Panel question No. 92 (referring to The New Shorter Oxford English Dictionary,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), (Exhibit USA-222), p. 2534).
501 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 1404. See also
United States' response to Panel question No. 92 (referring to The New Shorter Oxford English Dictionary,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), (Exhibit USA-222), p. 1397).
502 See also Oxford English Dictionary Online (Oxford University Press, March 2022) (defining
"international relations" as "relations between nations, national governments, international organizations") and
Black's Law Dictionary, 9th edn, B.A. Garner (ed.) (West Group 2009), p. 893 (defining "international relations"
as "[g]lobal political interaction, primarily among sovereign nations").

forces against a foreign power, or against an opposing party in the state". 503 Based on its ordinary
meaning, "war" involves a state of conflict characterized by the use of force. This is further confirmed
by the French and Spanish language versions of Article XXI(b)(iii), where the terms " guerre" and
"guerra" similarly signify armed struggles or outbreak of hostilities.504
The Panel finds that the reference to "war" informs the meaning of "emergency in
international relations" as part of the circumstances "in time of" which a Member may act under
Article XXI(b) for the protection of its essential security interests. In particular, the Panel considers
that an "emergency in international relations" within the meaning of Article XXI(b)(iii) must be, if
not equally grave or severe, at least comparable in its gravity or severity to a "war" in terms of its
impact on international relations. This u nderstanding is supported by the French and Spanish
language versions of Article XXI(b)(iii) of the GATT 1994, where the terms corresponding to
"emergency in international relations" are " grave tension internationale " and " grave tensión
internacional" respectively. The term "grave" in these languages may be understood as referring to
international tensions that are of a critical or serious nature in terms of their impact on the conduct
of international relations.
Further, under subparagraph (iii) of Article XXI(b), action for the protection of essential
security interests must be "taken in time of" an emergency in international relations. As discussed
above, the Panel understands these opening terms of subparagraph (iii) to qualify and describe the
"action" referred to in Article XXI(b). The phrase "taken in time of" in subparagraph (iii) describes
the temporal link between the action taken by a Member under Article XXI(b) and the "war or other
emergency in international relations" in subparagraph (iii) of that Article.
The Panel also considers relevant the context provided by the subparagraphs of
Article XXI(b) in conjunction with the terms used in paragraph (b) of Article XXI, which concerns
actions taken by a Member for the protection of its "essential security interests". As discussed above,
the description of these security interests as "essential" indicates the heightened significance of the
security interests that Members are not prevented from taking action to protect pursuant to
Article XXI(b). Actions taken by a Member for the protection of its essential security interests may
concern "fissionable materials" under subparagraph (i), "traffic" involving certain military interests
under subparagraph (ii), and "war or other emergency in international relations" under subparagraph
(iii). The Panel is guided by the delimiting function of the subparagraphs in construing subparagraph
(iii) to refer to circumstances of a certain gravity or severity in terms of their impact on the conduct
of international relations, as part of the balance of rights and obligations reflected in the ordinary
meaning of the terms of Article XXI(b), interpreted in their context and in light of the object and
purpose of the GATT 1994 and WTO Agreement.505
With respect to the me asures at issue, the Panel notes that the United States has referred
in its arguments regarding Article XXI(b)(iii) to factors considered by the USDOC in the Steel and
Aluminium Reports. These Reports reflect the domestic legislative basis and statutory te rms of
Section 232, particularly the factors to be considered in investigations by the USDOC and the
reference to importation "in such quantities or under such circumstances" that the imports "threaten
to impair the national security".506 The Panel notes that various factors relied upon by US authorities
are treated cumulatively in support of the determination to act under Section 232. Specifically, the
Steel and Aluminium Reports identify "three factors" as the basis for finding with respect to steel
and aluminium that "weakening of our internal economy may impair the national security", namely:
(a) displacement of domestic steel/aluminium by excessive imports; (b) the consequent adverse
impact on the economic welfare of the domestic steel/aluminium industry; and (c) the global excess

503 Oxford English Dictionary Online (Oxford University Press, March 2022).
504 See Le Petit Robert Dictionnaire de la Langue Française (2000), p. 1183 (defining "guerre" as "[l]utte
armée entre groupes sociaux" (armed struggle between social groups) or "[l]es questions militaires" (military
matters)); Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), p. 795 (defining
"guerra" as "[d]esavenencia y rompimiento de la paz entre dos o más potencias" (disagreement and breach of
peace between two or more powers) or "[l]ucha armada entre dos o más naciones o entre bandos de una
misma nación" (armed struggle between two or more nations or between sides of the same nation)).
505 See paras. 7.124-7.125 above.
506 The USDOC noted the non-exhaustive list of factors to be considered in connection with "national
security" under Section 232 and the list of factors for the US Secretary of Commerce to consider in determining
if imports "threaten to impair the national security". (See Steel Report, (Exhibit CHN-4 and USA-7), pp. 13-15;
Aluminium Report, (Exhibit CHN-5 and USA-8), pp. 12-14 (referring to Section 232(d))).

capacity in steel and aluminium. 507 The Panel notes that the first two factors focus predominantly
on developments relating to the domestic situation of steel and aluminium industries in the
United States508, while the third focuses on a global aspect of the situation.
The analysis and conclusions of the USDOC in the Steel and Aluminium Reports do not
purport to identify or address the existence of an "emergency in international relations" within the
meaning of Article XXI(b)(iii) of the GATT 1994. The determinations of US domestic authorities
under Section 232 relate to a different legal standard and basis under US municipal law than the
provisions of the covered agreements within the Panel's mandate under the DSU. Accordingly, the
factors relied upon by the USDOC and conclusions in the Steel and Aluminium Repo rts are distinct
from, and cannot be directly transposed to, the terms of Article XXI(b)(iii) of the GATT 1994 and the
objective assessment required under Article 11 of the DSU. Therefore, the factors treated
cumulatively by US domestic authorities under S ection 232 may not be regarded as having
commensurate relevance or weight in the Panel's objective assessment as to whether the measures
were taken "in time of war or other emergency in international relations" under Article XXI(b)(iii) of
the GATT 1994. The assessment of the Panel in this dispute concerns the United States' specific
arguments in connection with the existence of an "emergency in international relations" under
Article XXI(b)(iii) and, in particular, its references to an international situati on of global excess
capacity in steel and aluminium.509
The Panel observes that, in its arguments under Article XXI(b), the United States refers to
this international situation – i.e. global excess capacity in steel and aluminium – in connection with
the impact of imports on domestic producers of steel and aluminium, as reflected in the conclusions
of the USDOC in the Steel and Aluminium Reports.510 The United States refers to factors addressed
by the USDOC in the Steel and Aluminium Reports as evidence that it "considers" the measures at
issue to have been "taken in time" of an "emergency in international relations" within the meaning
of Article XXI(b)(iii). In this regard, the Panel notes the United States' argument that "the extensive
findings in the steel and aluminum reports are consistent with the United States considering the
measures at issue to be taken 'in time of war or other emergency in international relations'."511 The
United States additionally argues that "the Panel should find [that] the United States has provided
information that it considers the measure necessary for the protection of its essential security
interests … [and] that the United States has provided information that it considers the measure
'taken in time of war or other emergency i n international relations', the circumstance in
subparagraph ending (iii)".512
The Panel recalls its conclusion that the terms "which it considers" in Article XXI(b) do not
qualify the subparagraphs to render them "self -judging" as argued by the United States.513 While
the United States contends that it has "provided information that it considers" the measures at issue
to fall under Article XXI(b)(iii), the review of such information in accordance with the DSU requires
an objective ascertainment of factors relating to the relevant "emergency in international relations"
under subparagraph (iii), as distinguished from factors pertaining to what is reserved to a Member's
consideration under paragraph (b) of Article XXI. The United States refers to factors that were
cumulatively considered by domestic authorities in support of the determination to act under
Section 232. As noted, these factors concern both the domestic situation of steel and aluminium
industries as well as global excess capacity.
In the Panel's view, the factors raised by the United States on the impact of imports on
domestic producers of steel and aluminium , including the consideration of US domestic authorities

507 Steel Report, (Exhibit CHN-4 and USA-7), p. 16; Aluminium Report, (Exhibit CHN-5 and USA-8), p.
15.
508 See e.g. Steel Report, (Exhibit CHN-4 and USA-7), sections V.B.4-10 and V.C; Aluminium Report,
(Exhibit CHN-5 and USA-8), sections VI.H and VI.C.
509 United States' response to Panel question No. 92, para. 45 (referring to Steel Report, (Exhibit CHN-4
and USA-7), Appendix L: "Global Excess Capacity in Steel Production" and its commentary on OECD analyses
and the policy recommendations from the Global Forum on Steel Excess Capacity); United States' comments
on comments after the second meeting of the Panel, para. 25. See also United States' closing statement at the
second meeting, paras. 55-56.
510 See Steel Report, (Exhibit CHN-4 and USA-7), section VI; Aluminium Report, (Exhibit CHN-5 and
USA-8), section VII.
511 United States' response to Panel question No. 92, para. 42.
512 United States' closing statement at the second meeting, para. 50.
513 See para. 7.128 above.

of "national security" under Section 232, pertain more to the "action which [the United States]
considers necessary for the protection of its essential security interests" under paragraph (b) of
Article XXI.514 However, in accordance with the or dinary meaning of its terms,
subparagraph (iii) requires a distinct inquiry as to whether the actions were taken in time of an
"emergency in international relations" based on an objective assessment of relevant evidence and
arguments.
In this connection, t he Panel notes the evidence submitted by the United States of
international concerns regarding global excess capacity in steel and aluminium, including the
discussion of such concerns in the Steel and Aluminium Reports. The statements at the international
level referred to by the United States indicate that the issue of global excess capacity in steel and
aluminium has be en a topic of high -level discussion and expressions of concern in various
international fora.515 As reflected in information provided by th e United States in this dispute, the
discussion of global excess capacity focuses on specific sectors and is evidence of the fact that the
issue has been raised as a matter of international attention within the conduct of international
relations of various countries. Notwithstanding such evidence of international engagement, the Panel
recalls that an "emergency in international relations" under Article XXI(b)(iii) refers to situations of
a certain gravity or severity and international tensions that are of a critical or serious nature in terms
of their impact on the conduct of international relations.
Having carefully reviewed the relevant evidence and arguments submitted in this dispute,
and particularly those submitted by the United States in relation to global excess capacity, the Panel
is not persuaded that the situation to which the United States refers rises to the gravity or severity
of tensions on the international plane so as to constitute an "emergency in international relations"
during which a Member may act under Article XXI(b)(iii).516 For example, the G20 Global Steel Forum
Report "focuses on the steel sector and provides concret e policy solutions to reduce steel excess
capacity".517 In referring to excess steelmaking capacity as "a global challenge that has become
particularly acute since 2015", the report highlights various efforts within the Global Steel Forum in
light of trends in the sector as part of "[g]lobal cooperation to find solutions to tackle excess capacity
in the steel market". 518 Such evidence submitted by the United States in this dispute reflects
international concern expressed in the context of cooperative efforts to address excess capacity in
a specific sector. 519 In the Panel's view, however, the gravity or severity of an "emergency in

514 See e.g. United States' closing statement at the second meeting, para. 17 (stating that "the
measures challenged are measures on steel and aluminum (key sources for producing military vehicles,
weapons, and systems for critical national infrastructure) that the United States has taken for national security
purposes" and referring to "an industry that is vital to our national security and whose decline threatens to
impair our national security"); response to Panel question No. 92(a). See also paras. 7.83, 7.88-7.91, and
7.98-7.99 above.
515 See e.g. G20, Global Forum on Steel Excess Capacity Report (30 November 2017), (Exhibit USA-
239); Remarks dated 18 April 2016 of C. Malmström, "Way ahead for the global steel industry", OECD High-
Level Symposium on Steel, (Exhibit USA-240); Charlevoix G7 Summit Communiqué (9 June 2018), (Exhibit
USA-255).
516 The Panel notes in this regard that previous panels have found situations to constitute an
"emergency in international relations" under Security Exceptions based on the particular evidence and
circumstances at issue in those disputes. In a dispute under Article XXI(b)(iii) of the GATT 1994, such evidence
included international recognition of the degree of deterioration of relations between two Members and a
situation involving armed conflict during a certain time period. (See Panel Report, Russa – Traffic in Transit,
paras. 7.122-7.123). In another dispute under Article 73(b)(iii) of the TRIPS Agreement (the corresponding
provision to Article XXI(b)(iii) of the GATT 1994 in the TRIPS Agreement), such evidence included the
severance of all diplomatic, consular, and economic relations between two Members. (See Panel Report, Saudi
Arabia – IPRs; paras. 7.257-7.266).
517 G20, Global Forum on Steel Excess Capacity Report (30 November 2017), (Exhibit USA-239), p. 2.
518 G20, Global Forum on Steel Excess Capacity Report (30 November 2017), (Exhibit USA-239), pp. 2-
3. The report describes the formal establishment of the Global Forum on Steel Excess Capacity and notes that
"the OECD acts as the facilitator to the Global Forum". (Ibid. para. 6). The report further describes efforts to
develop an "information-sharing mechanism" in a "tangible process [that] contributes to the collective trust
and confidence that are necessary to find collective solutions to the challenge of excess capacity". (Ibid.
paras. 7-8).
519 The United States refers to other evidence that similarly reflects expressions of concern in the
context of specific international initiatives. For example, the United States refers to remarks by the EU
Commissioner for Trade at the OECD High-Level Symposium on Steel expressing concerns on steel
overcapacity while noting ongoing interventions as well as recommendations for international cooperation.
(Remarks dated 18 April 2016 of C. Malmström, "Way ahead for the global steel industry", OECD High-Level

international relations" within the meaning of Article XXI(b)(iii), particularly regarding the impact on
international relations of situations falling under that provision, has not been established based on
the evidence and arguments submitted in this dispute. In reaching this conclusion, the Panel is
mindful of its mandate in this dispute520 as well as the balance of rights and obligations reflected in
the terms of Article XXI of the GATT 1994 interpreted in accordance with the DSU.
Conclusion
In conclusion, the Panel does not find , based on the evidence and arguments submitted in
this dispute, that the measures at issue were "taken in time of war or other emergency in
international relations" within the meaning of Article XXI(b)(iii) of the GATT 1994. Therefore, the
Panel finds that the inconsistencies of the measures at issue with Articles I:1 and II:1 of the
GATT 1994 are not justified under Article XXI(b)(iii) of the GATT 1994.
8 CONCLUSIONS AND RECOMMENDATION
For the reasons set forth in this Report, the Panel concludes as follows:
a. Regarding China's claims under Article II of the GATT 1994:
i. the additional duties of 25% on steel products and 10% on aluminium products do not
accord the treatment provided for in the United States' Schedule, contrary to
Article II:1(b) and Article II:1(a) of the GATT 1994;
ii. the additional duty of 50% on steel products from Türkiye does not accord the
treatment provided for in the United States' Schedule, contrary to Article II:1(b) and
Article II:1(a) of the GATT 1994; and
iii. the additional duties of 25% on derivative steel products and 10% on derivative
aluminium products do not accord the treatment provided for in the United States'
Schedule, contrary to Article II:1(b) and Article II:1(a) of the GATT 1994.
b. Regarding China's claims under Article I of the GATT 1994:
i. the country exemptions for steel and aluminium products confer an advantage to
products from Australia, Argentina, Brazil, and the Republic of Korea that has not been
accorded immediately and unconditionally to like products from all other Members, in
a manner inconsistent with Article I:1 of the GATT 1994; and
ii. the country exemptions for derivative steel and aluminium products confer an
advantage to products from Australia, Argentina, Brazil, the Republic of Korea ,
Canada, and Mexico that has not b een accorded immediately and unconditionally to
like products from all other Members, in a manner inconsistent with Article I:1 of the
GATT 1994.
c. Regarding China's claims under Article X of the GATT 1994, the Panel does not consider it
necessary to make findings on China's claims relating to the administration of the process
for excluding products from duties that have already been found inconsistent with other

Symposium on Steel (Exhibit USA-240)). The statement of the chairperson of the OECD Ministerial Council
Meeting addressed multiple topics related to "[r]eshaping the foundations of multilateralism for more
responsible, effective and inclusive outcomes", including a series of points reflecting the chairperson's
understanding of the views of OECD members on "[i]nternational trade and investment for strong and inclusive
growth". In this context, the chairperson of the OECD Ministerial Council Meeting referred to "the view that
severe excess capacity in key sectors such as steel and aluminium are serious concerns" and, "[t]o address
this critical concern", indicated an agreement "to enhance cooperation in the WTO and in other fora, as
appropriate". (Statement of the Chair of the OECD Ministerial Council Meeting (2018), (Exhibit USA-254), p.
5). The Charlevoix G7 Summit Communiqué similarly addresses a number of topics of international
engagement and international economic concerns, which includes G7 leaders "call[ing] on all members of the
Global Forum on Steel Excess Capacity to fully and promptly implement its recommendations" while
"stress[ing] the urgent need to avoid excess capacity in other sectors such as aluminium and high technology".
(Charlevoix G7 Summit Communiqué (9 June 2018), (Exhibit USA-255), p. 2).
520 See section 7.1 above.

obligations under the GATT 1994. The Panel therefore declines to make findings regarding
the claims under Article X:3(a) of the GATT 1994.
d. Regarding China's claims under Article XIX of the GATT 1994 and the Agreement on
Safeguards, the Panel finds that the relevant measures at issue were sought, taken, or
maintained pursuant to a provision of the GATT 1994 other than Article XIX, namely
Article XXI of the GATT 1994, within the meaning of Article 11.1(c) of the Agreement on
Safeguards. The Panel therefore finds that the Agreement on Safeguards does not apply
to the measures at issue.
e. Regarding Article XXI of the GATT 1994, the Panel does not find that the measures at issue
were "taken in time of war or other emergency in international relations" within the
meaning of Article XXI(b)(iii) of the GATT 1994. The Panel therefore finds that the
inconsistencies of the measures at issue with Articles I:1 and II:1 of the GATT 1994 are
not justified under Article XXI(b)(iii) of the GATT 1994.
Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment. The Panel concludes that, to the extent that the measures at issue are
inconsistent with certain provisions of the GATT 1994, they have nullified or impaired benefits
accruing to China under that Agreement.
Pursuant to Article 19.1 of the DSU, the Panel recommends t hat the United States bring its
WTO-inconsistent measures into conformity with its obligations under the GATT 1994.