CHINA – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FROM THE UNITED STATES REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 16 August 2023
Document codes: WT/DS558/R
Complainant: U.S.
Respondent: China
Third parties: Brazil, Canada, Egypt, EU, Guatemala, India, Indonesia, Japan, Kazakhstan, Mexico, New Zealand, Norway, Russia, Singapore, South Africa, Switzerland, Taiwan, Thailand, Turkey, Ukraine, Venezuela
Dispute stage: Panel
Agreements cited: Art. I:1, II:1(a), II:1(b)  GATT 1994

CHINA – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FROM THE
UNITED STATES
REPORT OF THE PANEL

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures Concerning Substantive Meetings with Remote
Participation
11
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of the United States 15
Annex B-2 Integrated executive summary of the arguments of China 35
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of the European Union 48
Annex C-2 Integrated executive summary of the arguments of Japan 53
Annex C-3 Integrated executive summary of the arguments of New Zealand 56
Annex C-4 Integrated executive summary of the arguments of Norway 57
Annex C-5 Integrated executive summary of the arguments of the Russian Federation 61
Annex C-6 Integrated executive summary of the arguments of Switzerland 65
Annex C-7 Integrated executive summary of the arguments of Türkiye 69
Annex C-8 Integrated executive summary of the arguments of Ukraine 75
ANNEX D
COMMUNICATIONS BY THE PANEL
Contents Page
Annex D-1 Communication by the Panel on requests for enhanced third-party rights 79
Annex D-2 Communication by the Panel on China's request for a ruling under Article 6.2 of
the DSU
81

CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Financial Services Appellate Body Report, Argentina – Measures Relating to Trade in Goods
and Services, and Add.1, adopted 9 May 2016, DSR
2016:II, p. 431
Argentina – Textiles and
Apparel
Appellate Body Report, Argentina – Measures Affecting Imports of
Footwear, Textiles, Apparel and Other Items, and Corr.1,
adopted 22 April 1998, DSR 1998:III, p. 1003
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of
Apples from New Zealand, WT/DS367/AB/R, adopted 17 December 2010,
DSR 2010:V, p. 2175
Brazil – Taxation Appellate Body Reports, Brazil – Certain Measures Concerning Taxation
and Charges, WT/DS472/AB/R and Add.1 / WT/DS497/AB/R and Add.1,
adopted 11 January 2019, DSR 2019:I, p. 7
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 – 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
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)
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
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile Parts,
WT/DS339/R, Add.1 and Add.2 / WT/DS340/R, Add.1 and Add.2 /
WT/DS342/R, Add.1 and Add.2, adopted 12 January 2009, upheld
(WT/DS339/R) and as modified (WT/DS340/R / WT/DS342/R) by
Appellate Body Reports WT/DS339/AB/R / WT/DS340/AB/R /
WT/DS342/AB/R, DSR 2009:I, p. 119
China – HP-SSST (Japan) /
China – HP-SSST (EU)
Appellate Body Reports, China – Measures Imposing Anti-Dumping Duties
on High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from
Japan / China – Measures Imposing Anti-Dumping Duties on High-
Performance Stainless Steel Seamless Tubes ("HP-SSST") from the
European Union, WT/DS454/AB/R and Add.1 / WT/DS460/AB/R and
Add.1, adopted 28 October 2015, DSR 2015:IX, p. 4573
China – Publications and
Audiovisual Products
Panel Report, China – Measures Affecting Trading Rights and Distribution
Services for Certain Publications and Audiovisual Entertainment Products,
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by
Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261
China – TRQs Panel Report, China – Tariff Rate Quotas for Certain Agricultural
Products, WT/DS517/R and Add.1, adopted 28 May 2019
Colombia – Frozen Fries
(Article 25)
Award of the Arbitrators, Colombia – Anti-Dumping Duties on Frozen
Fries from Belgium, Germany and the Netherlands – Arbitration under
Article 25 of the DSU, WT/DS591/ARB25 and Add.1, 21 December 2022
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
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

Short Title Full Case Title and Citation
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 – 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
EC – Tariff Preferences Appellate Body Report, European Communities – Conditions for the
Granting of Tariff Preferences to Developing Countries, WT/DS246/AB/R,
adopted 20 April 2004, DSR 2004:III, p. 925
EU – PET (Pakistan) Panel Report, European Union – Countervailing Measures on Certain
Polyethylene Terephthalate from Pakistan, WT/DS486/R, Add.1 and
Corr.1, adopted 28 May 2018, as modified by Appellate Body Report
WT/DS486/AB/R, DSR 2018:IV, p. 1739
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 – 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
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 – 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
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports
of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000,
DSR 2000:I, p. 3
Korea – Pneumatic Valves
(Japan)
Appellate Body Report, Korea – Anti-Dumping Duties on Pneumatic
Valves from Japan, WT/DS504/AB/R and Add.1, adopted
30 September 2019, DSR 2019:XI, p. 5637
Saudi Arabia – IPRs Panel Report, Saudi Arabia – Measures Concerning the Protection of
Intellectual Property Rights, WT/DS567/R and Add.1, circulated to WTO
Members on 16 June 2020, dispute terminated while appeal pending
Spain – Unroasted Coffee GATT Panel Report, Spain – Tariff Treatment of Unroasted Coffee,
L/5135, adopted 11 June 1981, BISD 28S/102
Thailand – Cigarettes
(Philippines) (Article 21.5 –
Philippines)
Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from
the Philippines – Recourse to Article 21.5 of the DSU by the Philippines,
WT/DS371/RW and Add.1, circulated to WTO Members
12 November 2018, appealed 9 January 2019
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles,
Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from
Poland, WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701
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 – Non-Rubber Footwear GATT Panel Report, United States – Countervailing Duties on Non-Rubber
Footwear from Brazil, SCM/94, adopted 13 June 1995, BISD 42S/208
US – Oil Country Tubular Goods
Sunset Reviews
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina,
WT/DS268/AB/R, adopted 17 December 2004, DSR 2004:VII, p. 3257
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 – Steel and Aluminium
Products (China)
Panel Report, United States – Certain Measures on Steel and Aluminium
Products, WT/DS544/R, Add.1 and Suppl.1, circulated to WTO Members
9 December 2022, appealed 26 January 2023
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

EXHIBITS REFERRED TO IN THIS REPORT
Panel
Exhibit Title Short title
(where applicable)
USA-1 Notice on Suspension of Duty Concession Obligations on Some
Imported Products Originating from the United States (State
Council Customs Tariff Commission 2018 Shui Wei Hui No. 13,
issued 1 April 2018)
Implementation Notice
USA-2 Notice on Publicly Soliciting Opinions on US Imported Steel and
Aluminum Products 232 Measures and Chinese
Countermeasures (Ministry of Commerce Trade Remedy and
Investigation Bureau, issued 23 March 2018)
Opinions Notice
USA-9 Announcement on Imposing Tariffs on Some Goods Originating
in the United States (Ministry of Commerce 2018 Public Notice
No. 55, issued 16 June 2018)

USA-10 Announcement on Imposing Tariff on Some Goods Originating
in the United States (Ministry of Commerce 2018 Public Notice
No. 64, issued 8 August 2018)

USA-12 Announcement on Levying Tariffs on Goods and Commodity
Imports from the United States (Ministry of Commerce 2018
Public Notice No. 69, issued 18 September 2018)

USA-14 United States' Table Presenting Tariff Lines and Bound Rates
Affected By the Chinese Measure (2018)

USA-15 United States' Table Presenting Tariff Lines and Bound Rates
Affected By the Chinese Measure (2019)

USA-16 United States' Table Identifying Discrepancies Between China's
Opinions Notice and Implementation Notice

USA-17 United States' Table Presenting Tariff Lines and Bound Rates
Affected By the Chinese Measure (2018) Without Other
Additional Duties

USA-18 United States' Table Presenting Tariff Lines and Bound Rates
Affected By the Chinese Measure (2019) Without Other
Additional Duties

USA-20,
CHN-23
Trade Expansion Act, Public Law No. 87–794, 76 Stat. 877
(1962), United States Code, Title 19, Section 1862
Section 232
USA-25 United States Code of Federal Regulations, Title 15, Part 705
USA-30,
CHN-8
United States 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)
Section 232 investigation
into steel imports
USA-31,
CHN-9
United States 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)
Section 232 investigation
into aluminium imports
USA-32,
CHN-5
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
Proclamation 9705
USA-33,
CHN-6
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
Proclamation 9704
USA-34,
CHN-10
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
Proclamation 9711
USA-35 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
Proclamation 9710
USA-36,
CHN-11
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
Proclamation 9740
USA-37 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
Proclamation 9739
USA-38,
CHN-12
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
Proclamation 9759

Panel
Exhibit Title Short title
(where applicable)
USA-39,
CHN-13
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
Proclamation 9758
USA-40 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
Proclamation 9772
USA-41 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
Proclamation 9777
USA-42 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
Proclamation 9776
USA-44 Submissions of Exclusion Requests and Objections to Submitted
Requests for Steel and Aluminum, United States Federal
Register, Vol. 83, No. 176 (11 September 2018), p. 46026
BIS rule of
11 September 2018
CHN-1 Council for Trade in Goods and Committee on Safeguards,
Immediate notification under Article 12.5 of the Agreement on
Safeguards to the Council for Trade in Goods of proposed
suspension of concessions and other obligations referred to in
Article 8.2 of the Agreement on Safeguards, G/L/1218-

CHN-2 Committee on Safeguards, Imposition of a safeguard measure
by the United States on imports of steel – Request for
consultations under Article 12.3 of the Agreement on
Safeguards, G/SG/162

CHN-3 Committee on Safeguards, Imposition of a safeguard measure
by the United States on imports of aluminum – Request for
consultations under Article 12.3 of the Agreement on
Safeguards, G/SG/161

CHN-4 United States' communication (4 April 2018)
CHN-14 Memorandum from the United States Secretary of Defense,
Memorandum for Secretary of Commerce responding to the
Steel and Aluminum Policy Recommendations
United States Secretary of
Defense Memorandum

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
MFN Most-Favoured Nation
GATT 1994 General Agreement on Tariffs and Trade 1994
MOFCOM Ministry of Commerce of China
WTO World Trade Organization
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization

1 INTRODUCTION
1.1 Complaint by the United States
1.1. On 16 July 2018, the United States requested consultations with China pursuant to Article 4 of
the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and
Article XXIII of the General Agreement on Tariffs and Trade 1994 (GATT 1994) concerning China's
imposition of additional duties on certain products originating in the United States.1
1.2. Consultations were held on 29 August 2018 but failed to resolve the dispute.
1.2 Panel establishment and composition
1.3. On 18 October 2018, the United States requested the establishment of a panel pursuant to
Article 6 of the DSU with standard terms of reference.2 At its meeting on 21 November 2018, the
Dispute Settlement Body (DSB) established a panel pursuant to the request of the United States in
document WT/DS558/2, in accordance with Article 6 of the DSU.3
1.4. 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 the United States in
document WT/DS558/2 and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.4
1.5. On 7 January 2019, the United States 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 William Ehlers

Members: Mr Cristian Espinosa Cañizares
 Ms Mónica Rolong

1.6. Brazil, Canada, Egypt, the European Union, Guatemala, India, Indonesia, Japan, Kazakhstan,
Mexico, New Zealand, Norway, the Russian Federation, Singapore, South Africa, Switzerland,
Chinese Taipei, Thailand, Türkiye5, Ukraine, and the Bolivarian Republic of Venezuela reserved their
rights to participate in the Panel proceedings as third parties.6
1.3 Panel proceedings
1.3.1 General
1.7. The Panel held an organizational meeting with the parties on 12 March 2019.
1.8. After consulting with the parties, the Panel adopted its Working Procedures 7 and partial
timetable on 5 April 2019. The Panel revised its timetable several times throughout the proceedings
in consultation with the parties.8

1 See Request for consultations by the United States, WT/DS558/1 (United States' consultations
request), p. 1.
2 Request for the establishment of a panel by the United States, WT/DS558/2 (United States' panel
request), p. 2.
3 See DSB, Minutes of the meeting held on 21 November 2018, WT/DSB/M/421, para. 13.4.
4 Constitution note of the Panel, WT/DS558/3.
5 Formerly "Turkey" (see WT/INF/43/Rev.23).
6 Constitution note of the Panel, WT/DS558/3.
7 See Working Procedures of the Panel (Annex A-1).
8 The timetable was revised on 11 June 2019, 17 June 2019, 7 February 2020, 16 November 2020,
23 November 2020, 18 February 2022, 28 April 2022, 3 May 2022, 23 November 2022, and 25 May 2023.

1.9. The Panel held a first substantive meeting with the parties on 19 and 20 September 2019. A
session with the third parties took place on 19 September 2019. Prior to the first substantive
meeting, on 9 September 2019, the Panel sent the parties and the third parties a list of questions
to be answered orally at the meeting. Following the meeting, on 29 November 2019, the Panel sent
written questions to the parties and the third parties.
1.10. The second substantive meeting was originally scheduled to take place on 25-26 June 2020.
However, due to the COVID-19 pandemic and related restrictions on travel and in-person meetings,
it was not possible to physically meet with the parties at the WTO premises on the scheduled dates.
In consultation with the parties, the Panel postponed the second substantive meeting several times
to a date to be determined. Meanwhile, on 16 November 2020, the Panel sent the parties a list of
questions to which it sought responses in writing.
1.11. On 17 December 2021, after further consultations with the parties, the Panel communicated
its decision that, taking into account the delays already occasioned by COVID -19, as well as the
uncertainty about the evolution of the pandemic, scheduling a second substantive meeting in virtual
format would strike an appropriate balance between the efficient conduct of the proceedings and the
parties' due process rights.9
1.12. On 8 February 2022, after consultations with the parties, the P anel scheduled the second
substantive meeting through virtual means for 15 and 16 March 2022, and issued draft Additional
Working Procedures Concerning Substantive Meetings with Remote Participation to the parties. On
18 February 2022, the Panel adopted it s Additional Working Procedures Concerning Substantive
Meetings with Remote Participation.10
1.13. The Panel held its second substantive meeting with the parties virtually on 15 and
16 March 2022 via the Cisco Webex platform. Prior to the second substantive meet ing, on
8 March 2022, the Panel sent the parties a list of questions to be answered orally at the meeting.
1.14. On 28 April 2022, the Panel sent the parties a list of questions to which it sought answers in
writing.
1.15. On 15 December 2022, the Panel issued the draft descriptive part of its Report to the parties.
On the same day, and following the circulation of the panel report in US – Steel and Aluminium
Products (China), the Panel sought the parties' views on the findings in that report concerning the
applicability of the WTO safeguards regime to the United States' Section 232 measures, and on the
relevance of those findings for this Panel's analysis.
1.16. The Panel issued its Interim Report to the parties on 25 May 2023. The Panel issued its Final
Report to the parties on 1 August 2023.
1.3.2 Requests for enhanced third-party rights
1.17. The Panel received communications from Canada 11, Türkiye12, the Russian Federation13, the
European Union14, and Mexico15, asking that the Panel exercise its discretion under Article 12.1 of
the DSU to grant all third parties additional rights to those provided under Article 10 of the DSU.
The requesting third parties asked the Panel to allow all third parties: (i) to receive copies of all of
the parties' written submissions, their oral statements, rebuttals, and answers to questions from the
Panel and each other, through all the stages of the proceedings; (ii) to be present for the entirety
of all substantive meetings of the Panel with the parties; (iii) to review the draft summary of their
own arguments in the descriptive part of the Panel Report; and (iv) to make a brief oral statement
during the second substantive meeting.

9 Panel's communication to the parties (17 December 2021).
10 Annex A-2.
11 Canada' communication (15 March 2019).
12 Türkiye's communication (18 March 2019).
13 Russian Federation's communication (19 March 2019).
14 European Union's communication (20 March 2019).
15 Mexico's communication (22 March 2019).

1.18. The Panel sought the parties' views on the request s for enhanced third -party rights. China
supported the requests, noting that the measure challenged by the United States in this dispute was
similar to those challenged by the same complainant in panel proceedings where the requesting
third parties were participating as respondents. According to China, the enhanced rights requested
by the third parties would not impose any undue additional burden on the parties to the dispute. 16
The United States opposed the requests, arguing that they were not well founded under the DSU,
and that the granting of additional rights to third parties would result in a corresponding imposition
of additional obligations on the parties, without the consent of one of them.17
1.19. On 5 April 2019, the Panel sent a communication to the parties and the third parties in relation
to the requests for enhanced third -party rights. The Panel recalled that it had discretion to grant
such requests but declined to do so in the circumstances of this case. In explaining its decision, the
Panel noted, inter alia, the lack of agreement between the parties and the due process implications
of granting enhanced third -party rights. The Panel further noted that the third parties requesting
enhanced rights would have an opportunity to fully express their views on the relevant legal issues
as third parties in this dispute in accordance with Article 10 of the DSU, and also as respondents in
separate panel proceedings concerning the United States' complaints against their own measures.
1.20. The Panel's communication is annexed to this Report.18
1.3.3 Request for a ruling under Article 6.2 of the DSU
1.21. In its first written submission, China requested the Panel to make a ruling, on a preliminary
basis or otherwise, that the claims of the United States were not properly before the Panel as the
United States' panel request failed to provide a brief summary of the legal basis of the complaint
sufficient to present the problem clearly. 19 On 25 June 2019, the United States submitted its
response, in which it argued that China's request was without merit because the panel request met
the requirements of Article 6.2 of the DSU. 20 On 1 July 2019, the Panel received comments on
China's request for a preliminary ruling and the United States' response to that request from
the European Union, the Russian Federation, and Türkiye.
1.22. On 12 March 2020, the Panel sent a communication to the parties and the third parties in
relation to China's request for a ruling under Article 6.2 of the DSU. The Panel noted that the request
touched upon "issues that are closely related to the substantive questions raised by the parties in
this dispute". In the Panel's view, a preliminary ruling on the issue raised by China might require it
to adjudicate the merits of the parties' arguments, including with regard to th e applicability of the
relevant covered agreements to the measure at issue. The Panel thus concluded that a decision on
a preliminary basis would be premature and, accordingly, stated that it would address the issue
raised in China's request in its Report.
1.23. The Panel's communication is annexed to this Report.21 The Panel addresses China's request
under Article 6.2 of the DSU in section 7 of this Report.
2 FACTUAL ASPECTS
2.1. This section provides an overview of the factual background to the case, describes the measure
at issue, and details other factual developments discussed by the parties.
2.1 Factual background
2.2. On 23 March 2018, the Ministry of Commerce of China (MOFCOM) issued the Ministry of
Commerce Notice on Publicly Soliciting Opinions on US Imported Steel and Aluminum Products
232 Measures and Chinese Countermeasures (Opinions Notice).22 The Opinions Notice recalled that
on 8 March 2018, the United States had announced tariffs on imports of steel and aluminium

16 China's communications (20, 21, and 26 March 2019).
17 United States' communications (20, 21, 22, and 26 March 2019).
18 Communication by the Panel on requests for enhanced third-party rights (Annex D-1).
19 China's first written submission, para. 62.
20 United States' response to China's request for a preliminary ruling, paras. 5-13.
21 Communication by the Panel on China's request for a ruling under Article 6.2 of the DSU (Annex D-2).
22 Opinions Notice, (Exhibit USA-2), p. 1.

products ( Section 232 duties). In the Opinions Notice, MOFCOM expressed the view that the
Section 232 duties constitute "a safeguard measure", and indicated China's intention to "suspend
the implementation of substantive e qual concessions and other obligations to the United States".
Through the Opinions Notice, MOFCOM also sought public comments on the import tariffs China
proposed to apply on certain products originating in the United States.
2.3. On 26 March 2018, China notified the WTO Committee on Safeguards of its formal request for
consultations with the United States under Articles 12.3 and 8.1 of the Agreement on Safeguards
and Article XIX:2 of the GATT 1994. In its notification s, China indicated that it was "exercising i ts
right to trade compensation consultations".23
2.4. On 29 March 2018, China notified the WTO Council for Trade in Goods of its proposed
suspension of concessions and other obligations with respect to imports from the United States
under Article XIX:3 of the GATT 1994 and Article 8.2 of the Agreement on Safeguards. According to
this notification, the proposed suspension would consist of an increase in tariffs on selected products
originating in the United States, "based on the part of the measures of the United States which were
not taken as a result of an absolute increase for the [years 2014-2016]".24
2.5. On 1 April 2018, MOFCOM issued the State Council Customs Tariff Commission Notice on
Suspension of Duty Concession Obligations on Some Imported Products Originating from the
United States (Implementation Notice) "suspend[ing] tariff concession obligations ", as of
2 April 2018, for 128 imported products originating from the United States. The Implementation
Notice indicated an increase in the tariff rate for each of these 128 products, to be applied in addition
to the "current applied base tariff rates".25
2.6. On 4 April 2018, the United States informed China that it did not consider there was any basis
to conduct consultations under Article 12.3 of the Agreement on Safeguards, as it did not agree with
China's characterization of the Section 232 duties as safeguard measures.26
2.2 Measure at issue
2.7. In its panel request, the United States describes the measure at issue as "China's imposition
of additional duties on certain products originating in the United States (the 'additional duties
measure')".27 According to the United States, China imposes the additional duties measure through
the Opinions Notice and the Implementation Notice, operating separately or collectively, as well as
any amendments, replacements, related measures or implementing measures.28
2.8. The Opinions Notice identified 128 tariff codes to which China proposed to apply the additional
duties measure. These tariff codes, set out in the Specific Product List attached to the Opinions
Notice, comprised products in seven categories: (i) fresh fruit, dried fruit, and nut products;
(ii) wine; (iii) denatured ethyl alcohol; (iv) American ginseng; (v) seamless steel tubes; (vi) meat
of swine and its products; and (vii) aluminium waste.29

23 Committee on Safeguards, Imposition of a safeguard measure by the United States on imports of
steel – Request for consultations under Article 12.3 of the Agreement on Safeguards, G/SG/162,
(Exhibit CHN-2); and Committee on Safeguards, Imposition of a safeguard measure by the United States on
imports of aluminum – Request for consultations under Article 12.3 of the Agreement on Safeguards,
G/SG/161, (Exhibit CHN-3).
24 Council for Trade in Goods and Committee on Safeguards, Immediate notification under Article 12.5
of the Agreement on Safeguards to the Council for Trade in Goods of proposed suspension of concessions and
other obligations referred to in Article 8.2 of the Agreement on Safeguards, G/L/1218-G/SG/N/12/CHN/1,
(Exhibit CHN-1), p. 1.
25 Implementation Notice, (Exhibit USA-1), p. 1.
26 United States' communication (4 April 2018), (Exhibit CHN-4), p. 1.
27 United States' panel request, p. 1.
28 Ibid.
29 Opinions Notice, (Exhibit USA-2), pp. 2-6.

2.9. The Implementation Notice imposed additional duties on the 128 tariff codes identified in the
Opinions Notice.30 These additional duties were made applicable to "imported products originating
from the United States" and assessed on an ad valorem basis:
a. For 120 of these tariff codes, including fruits and derived products, the Implementation Notice
imposed an additional tariff rate of 15% on top of the current applied base tariff rates.
b. For eight of these tariff codes, including pork and derived products 31, the Implementation
Notice imposed an additional tariff rate of 25% on top of the current applied base tariff rates.32
2.3 Other additional duties
2.10. Subsequent to the Implementation Notice, China imposed certain "other additional duties",
i.e. duties on top of the additional duties imposed under the Implementation Notice . The
United States maintains that, in total, these other additional duties affect the importation of products
falling under 112 of the 128 tariff lines already subject to the additional duties measure.33 These
other additional duties are as follows:
a. With effect from 6 July 2018, a further additional duty of 25% on imports from the
United States that applies to 81 of the 128 tariff lines already subject to the additional duties
measure.34
b. With effect from 23 August 2018, a further additional duty of 25% on imports from the
United States that applies t o one of the 128 tariff lines already subject to the additional duties
measure.35
c. With effect from 24 September 2018, a further additional duty of 10% and 5% on imports
from the United States falling under, respectively, 20 and 10 of the 128 tariff lines already subject
to the additional duties measure.36
2.11. China considers that the other additional duties described above are "not measures at issue
in this dispute" as they were not included in th e United States' panel request.37 The United States
explains that it "included the additional tariffs in order to calculate the sum of duties … actually
applied to" goods originating in the United States.38 The United States further clarifies that it is not
seeking findings and recommendations on these other additional duties.39 The Panel addresses this
issue in its findings in section 7 of the Report.

30 The United States has noted discrepancies between the product lists attached to the Opinions Notice
and the Implementation Notice. According to the United States, for 88 out of the 128 products listed in the
Implementation Notice, the eight-digit tariff line matches a product description in the attachment to the
Opinions Notice, but the product description is not verbatim. (See United States' first written submission,
para. 8 and fn 8 and United States' Table Identifying Discrepancies Between China's Opinions Notice and
Implementation Notice, (Exhibit USA-16)). China considers these differences to be "different ways of describing
the same products under the same HTS" that "have no impact on the measures taken". (See China's response
to Panel question No. 16).
31 While the Implementation Notice uses the terms "pork and derived products", the terms used in the
Opinions Notice are "meat of swine and its products". The Panel notes that these differently described product
categories comprise the same seven tariff codes (02031200, 02031900, 02032190, 02032200, 02032900,
02064100, and 02064900). See also ibid.
32 Implementation Notice, (Exhibit USA-1), p. 1.
33 United States' first written submission, para. 17.
34 United States' first written submission, para. 17, referring to Announcement on Imposing Tariffs on
Some Goods Originating in the United States (Ministry of Commerce 2018 Public Notice No. 55, issued
16 June 2018), (Exhibit USA-9).
35 United States' first written submission, para. 17, referring to Announcement on Imposing Tariff on
Some Goods Originating in the United States (Ministry of Commerce 2018 Public Notice No. 64, issued
8 August 2018), (Exhibit USA-10).
36 United States' first written submission, para. 17, referring to Announcement on Levying Tariffs on
Goods and Commodity Imports from the United States (Ministry of Commerce 2018 Public Notice No. 69,
issued 18 September 2018), (Exhibit USA-12).
37 China's first written submission, para. 156.
38 United States' response to Panel question No. 12.
39 United States' response to Panel question Nos. 12 and 68.

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. The United States requests that the Panel find that Ch ina's additional duties measure is
inconsistent with China's obligations under Articles I:1, II:1(a), and II:1(b) of the GATT 1994.40
3.2. China requests that the Panel reject the United States' claims in this dispute in their entirety.41
4 ARGUMENTS OF THE PARTIES
4.1. The arguments of the parties are reflected in their executive summaries, provided to the Panel
in accordance with paragraph 22 of the Working Procedures adopted by the Panel (see Annexes B-1
and B-2).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of the European Union, Japan, New Zealand, Norway, the Russian Federation,
Switzerland, Türkiye, and Ukraine are reflected in their executive summaries, provided in accordance
with paragraph 25 of the Working Procedures adopted by the Panel (see Annexes C -1, C-2, C-3,
C-4, C-5, C-6, C-7, and C-8).
6 INTERIM REVIEW
6.1. On 25 May 2023, the Panel issued its Interim Report to the parties. On 8 June 2023, the parties
submitted written requests for review of the Interim Report. Neither party requested an interim
review meeting. On 15 June 2023, the United States submitted comments on China's requests for
review of the Interim Report. On the same date, China informed the Panel that it did not intend to
submit comments on the United States' requests for review of the Interim Report.
6.2. In accordance with Article 15.3 of the DSU, this section of the Report sets out the Panel's
responses to the requests made at the interim review stage.42
6.3. At the outset, the Panel notes the parties' requests to modify or expand the Panel's summaries
of their arguments. In this Report, the Panel has summarized the parties' arguments concerning the
contested issues with a view to placing its reasoning and findings in context. The Panel did not intend
to provide extensive descriptions of all the arguments raised by the parties, but only of arguments
relevant for the purposes of its objective assessment of the matter before it. In this regard, t he
Panel recalls that the parties submitted detailed executive summaries of their arguments, annexed
to this Report43, which provide a comprehensive account of their respective positions . The Panel
further understands that it has substantial discretion to focus and elaborate on those aspects of the
parties' submissions that it considers most pertinent for the res olution of the dispute, in fulfilment
of its duty to make such findings as will assist the DSB in making the recommendations or rulings
provided for in the covered agreements.44
6.4. Accordingly, unless otherwise specified in this section, the Panel considers that the parties'
arguments were adequately summarized in the Interim Report and that it need not modify or expand
the relevant paragraphs in the Final Report.
6.5. The Panel has made typographical and other editorial modifications in the Report, including in
response to the parties' requests for review.45

42 The paragraph and footnote numbers in the Final Report may have changed due to the revisions
made at the interim review stage. The paragraph and footnote numbers indicated in this section pertain to
those in the Final Report, unless otherwise specified.
43 See Annexes B-1 and B-2.
44 See Article 7.1 of the DSU.
45 Editorial changes in response to the parties' requests for review have been made at paras. 1.1, 1.15,
2.9, 7.3, 7.7, 7.38-7.39, 7.57, and 7.132.

6.1 Compliance of the United States' panel request with Article 6.2 of the DSU
6.1.1 Paragraphs 7.17-7.30
6.6. China requests that the Panel modify paragraphs 7.17, 7.26, 7.29, and 7.30 of the Interim
Report to "correctly summarize and reflect China's arguments" concerning the issue of the Panel's
terms of reference.46 The United States objects to the request, arguing that the Panel has accurately
presented China's position on Article 6.2 of the DSU. The United States further contends that China
offers no precise comments as to how the Panel should modify its statements.47
6.7. The Panel's understanding of China's position , as expressed in the paragraphs identified by
China as well as in other relevant parts of the Report , is based on a close reading of all of China's
submissions. The Panel does not consider that it misstates or otherwise misrepresents China's
position. Nevertheless, for greater clarity, the Panel has modified paragraphs 7.17, 7.26, 7.28, and
7.29 of the Final Report, including by adding or modifying footnotes 104, 11 3, and 114, to further
explain both its own understanding of China's position and the basis of that understanding in China's
various submissions. In the light of these changes, the Panel no lon ger considered paragraph 7.30
of the Interim Report to be necessary and has accordingly deleted that paragraph.
6.2 Applicability of the relevant covered agreements
6.2.1 Paragraph 7.36 and footnote 131
6.8. The United States requests that the Panel make certain modifications to more accurately reflect
the United States' position that "invocation through notice is the condition precedent for taking
action under Article XIX and the application of the safeguards disciplines".48 China does not comment
on the request.
6.9. Taking into account that the modification s requested in the summary of the United States'
arguments do not impact the Panel's reasoning, and in the absence of any objection from China, the
Panel agrees to modify paragraph 7.36 and footnote 131 of the Report.
6.2.2 Paragraph 7.77
6.10. In relation to China's argument that the absence of an underlying safeguard measure
concerns the consistency with, and not the applicability of, Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994, China requests that the Panel modify the
summary of China's arguments and reconsider its analysis or findings.49 Specifically, China requests
that the Panel revise or remove a statement in paragraph 7.77 reflecting the Panel's understanding
of the consequences of China's arguments.50 The United States does not object to the deletion of
this sentence, but does not consider that the Panel should reconsider its analysis or findings.51
6.11. The Panel takes note that the United States does not object to the removal of the sentence
identified by China. As the sentence concerns an observation relating to certain arguments raised
by China, but is not a direct summary of those arguments, the Panel agrees to remove the final
sentence of paragraph 7.77 and has replaced it with a statement reflecting China's argument as
contained in its second written submission. The Panel does not consider it necessary to revise its
reasoning or findings set out in subsequent paragraphs, which address China's arguments as
reflected in the remainder of paragraph 7.77.
6.2.3 Paragraphs 7.90-7.94
6.12. The United States requests that the Panel add a paragraph in the Report to support its
interpretation of the terms "pursuant to" in Article 11.1(c) of the Agreement on Safeguards.
Specifically, the United States requests the Panel to indicate that the ordinary meaning of "sought,

46 China's interim review comments, paras. 3-14.
47 United States' comments on China's interim review comments, paras. 3-6.
48 United States' interim review comments, para. 5.
49 China's interim review comments, paras. 15-17.
50 China's interim review comments, para. 16.
51 United States' comments on China's interim review comments, para. 7.

taken or maintained" in Article 11.1(c) supports the Panel's understanding that "in the case of
measures sought, taken, or maintained by virtue of or under 'provisions of the GATT o ther than
Article XIX', the Agreement on Safeguards does not apply, irrespective of whether the measures are
consistent with such other provisions".52 China does not comment on the request.
6.13. The Panel does not find it necessary to supplement its reasoning w ith additional
considerations. In the Panel's view, its interpretation of the text of Article 11.1(c) of the Agreement
of Safeguards is adequately supported by considerations pertaining to the context of the provision
and the object and purpose of the Agre ement. In this light, the Panel does not consider that
addressing the additional elements raised by the United States is strictly necessary to resolve the
dispute or to make such findings as will assist the DSB in making the recommendations or rulings
provided for in the covered agreements. Accordingly, the Panel declines the request.
7 FINDINGS
7.1 Compliance of the United States' panel request with Article 6.2 of the DSU
7.1. China contends that the United States' panel request does not comply with the requirements
of Article 6.2 of the DSU because it fails to provide a brief summary of the legal basis of the complaint
sufficient to present the problem clearly.53 Specifically, China argues that, by failing to raise a claim
in its panel request that the additional duties measure is not justified under Article XIX of the
GATT 1994 and the Agreement on Safeguards, and only claiming inconsistency with Articles I and II
of the GATT 1994 in its panel request, the United States has not provided a brief summary of the
legal basis of its complaint sufficient to present the problem clearly, and thus failed to notify China
of the nature of its case.54 China submits that, as a result, the United States' claims under Articles I
and II of the GATT 1994, as well as any arguments concerning the additional duties measure's
consistency with Article XIX:3(a) of the GATT 1994 and Article 8.2 of the Agreement on Safeguards,
fall outside the Panel's terms of reference. 55 China requested that the Panel rule on this issue " on
preliminary basis or otherwise".56
7.2. On 12 March 2020, the Panel informed the parties in writing that it did not intend to issue a
preliminary ruling in respect of China's request under Article 6.2 because it "touches upon issues
that are closely related to the substantive questions raised by the parties in this dispute". 57 The
Panel indicated that it would inste ad address China's objections in its Report. 58 Given that these
objections concern the Panel's terms of reference, the Panel will address them first before turning
to the substance of the dispute.
7.1.1 Main arguments of the parties
7.1.1.1 China
7.3. China submits that t he United States was "well aware" that China's measure at issue was
plainly taken pursuant to Article XIX:3(a) of the GATT 1994 and Article 8.2 of the Agreement on
Safeguards.59 China observes that the United States nevertheless chose not to invoke
Article XIX:3(a) of the GATT 1994 and Article 8.2 of the Agreement on Safeguards in its panel
request. Instead, in the panel request, the United States only claimed that China's measure was
inconsistent with Article s I and II of the GATT 1994.60 According to China, A rticle XIX of the
GATT 1994 and the Agreement on Safeguards establish "positive obligations" for Members, and it is
therefore the obligation of a complainant to raise a claim of violation under these provisions in its
panel request for measures "plainly taken" pursuant to them.61 In China's view, the United States'

52 See para. 7.91 below.
53 China's response to Panel question No. 1, para. 2.
54 China's first written submission, para. 58.
55 China's first written submission, paras. 17 and 60.
56 China's first written submission, para. 62.
57 Communication by the Panel on China's request for a ruling under Article 6.2 of the DSU (Annex D-2).
58 Communication by the Panel on China's request for a ruling under Article 6.2 of the DSU (Annex D-2).
59 China's first written submission, para. 13.
60 China's first written submission, para. 14.
61 China's first written submission, para. 15. Relatedly, China elaborates on why it considers that
Article XIX of the GATT 1994 and the Agreement on Safeguards cannot be considered "affirmative defences" in

omission of these provisions from its panel request precludes the Panel from assessing either the
United States' claims under Articles I and II of the GATT 1994, or from examining and making
findings on whether China's measure is consistent with Article XIX of the GATT 1994 and the
Agreement on Safeguards.62
7.4. China further argues that, when the measure at issue in a dispute is "plainly taken" pursuant
to Article XIX of the GATT 1994 and the Agreement on Safeguards, then "the relevant concessions
and obligations under other GATT 1994 provisions, such as those under Article I and II of
GATT 1994, are necessarily suspended, withdrawn or modified".63 In China's view, it follows in such
circumstances that a complainant cannot make a claim solely under Article s I and II of the
GATT 1994 in its panel request without also claiming that the measure cannot be justified under
Article XIX of the GATT 1994 and the Agreement on Safeguards.64
7.5. China argues that to sustain a claim of violation of Articles I and II of the GATT 1994 by a
measure taken pursuant to the WTO safeguard provisions, the non -application of or inconsistency
with the WTO safeguard provisions "would be an inextricable link, and therefore an integral part" of
the legal basis for such a claim.65 Thus, China considers that, in failing to identify Article XIX of the
GATT 1994 and the Agreement on Safeguards in its panel request, the United States has turned a
"blind eye"66 to "the explicit legal basis within the WTO framework of China's measure []" and so
failed to present a proper claim before the Panel.67 In particular, China maintains that, because the
"crucial and inextricable link in between China's [measure] at issue and claim of violation of Article I
and II of the GATT 1994 is missing", the panel request does not sufficiently connect the challenged
measure with the United States' claims under Articles I and II of the GATT 1994.68
7.6. China draws support for its position from the Appellate Body's report in EC – Tariff
Preferences.69 According to China, in that case the Appellate Body found that a complaining party
challenging a measure taken pursuant to the Enabling Clause must allege more than mere
inconsistency with Article I:1 of the GATT 1994, for to do only that would not convey the legal basis
of the complaint sufficient to present the problem clearly .70 China notes that the Appellate Body
found that a complainant in such a case must cite the Enabling Clause in making its claim of
inconsistency with Article I:1 of the GATT 1994, and must moreover identify in its panel request the
provision(s) of the Enabling Clause that it considers to have been violated by the measures at issue.71
In China's view, the same principles underlying the Appellate Body's report in EC – Tariff Preferences
would have required the United States in this dispute to identify in its panel request the specific
requirement(s) in Article XIX of the GATT 1994 and the Agreement on Safeguards with which it
considered China had failed to comply to properly "convey the legal basis of the complaint sufficient
to present the problem clearly ".72 In China's view, although the United States was "entitled to
disagree a nd challenge that China 's [measure] could be justified under its explicit legal basis,

paragraphs 18-30 of its first written submission and paragraphs 15-19 of its second written submission. The
Panel will discuss these arguments as relevant in its analysis below.
62 China's first written submission, para. 17.
63 China's first written submission, para. 16; opening statement at the first meeting of the Panel,
para. 22. China provides further arguments on why measures taken pursuant to Article XIX of the GATT 1994
and the Agreement on Safeguards suspend, withdraw, or modify obligations under the GATT 1994 in
paragraphs 31-42 of its first written submission. The Panel will discuss these arguments as relevant in its
analysis below.
64 China's first written submission, para. 16.
65 China's second written submission, para. 47.
66 China's second written submission, para. 46.
67 China's first written submission, para. 43.
68 China's second written submission, para. 48. (emphasis omitted)
69 China's first written submission, paras. 44-55; second written submission, para. 50; and response to
Panel question No. 5.
70 China's first written submission, para. 47 (referring to Appellate Body Report, EC – Tariff Preferences,
para. 110).
71 China's first written submission, para. 45 (referring to Appellate Body Report, EC – Tariff Preferences,
paras. 113 and 125).
72 China's first written submission, paras. 48 and 52 (internal citation omitted). China draws further
parallels between this dispute and EC – Tariff Preferences in paragraphs 49-55 of its first written submission,
which, in China's view, supports the position described above.

Article XIX:3 of GATT 1994 and Article 8.2 of the Safeguard Agreement", it should nevertheless have
raised a claim of inconsistency with these provisions in its panel request.73
7.7. China concludes that the United States' decision not to identify Article XIX of the GATT 1994
and the Agreement on Safeguards in its panel request is a "fundamental defect"74 that results in the
panel request failing either to convey the legal bas is of the complaint sufficient ly to present the
problem clearly, or to notify China of the nature of the United States' case.75 According to China, the
panel request thus fails to meet the requirements of Article 6.2 of the DSU76, with the consequence
that the Panel does not have jurisdiction to assess either the United States' claims under Articles I
and II of the GATT 1994 or to examine and make findings on whether China's measure is consistent
with Article XIX of the GATT 1994 and the Agreement on Safeguards.77
7.1.1.2 United States
7.8. The United States contends that China's arguments on the sufficiency of the United States'
panel request are "groundless"78, and asks the Panel to reject China's request for a ruling under
Article 6.2 of the DSU.
7.9. The United States submits that its panel request fully satisfies the requirements of Article 6.2
of the DSU. According to the United States, the panel request provides a brief summary of the legal
basis of the complaint sufficient to present the problem clearly . It does so by identifying the legal
instrument through which China imposes the additional duties and explaining why the United States
considers that China 's additional duties are inconsistent with China's obligations under Articles I
and II of the GATT 1994.79 By doing so, the United States is of the view that the panel request
properly " connects China 's additional duties measure with provision s of the GATT 1994".80 The
United States further submits that, because its panel request satisfies the requirements of Article 6.2
of the DSU, "China cannot credibly claim that it did not receive proper notice on the nature of the
dispute".81
7.10. The United States further argues that China's reference to the Appellate Body Report in EC –
Tariff Preferences is unavailing. In the United States' view, the approach adopted by the
Appellate Body in EC – Tariff Preferences was based on " particular circumstances … dictating a
special approach, given the fundamental role of the Enabling Clause" in "promoting trade as a means
of stimulating economic growth and development ".82 According to the United States, such
considerations are not relevant in the present dispute.83
7.11. Moreover, the United States observes that in EC – Tariff Preferences, the complaining party
considered the Enabling Clause to be relevant to the dispute and requested consultations under that
provision.84 In contrast, in this dispute, the United States does not consider Article XIX of the
GATT 1994 or the Agreement on Safeguards to be relevant , and has not asserted that China has
acted inconsistently with those provisions. There was therefore, in the United States' view, no reason
for the United States to refer to Article XIX of the GATT 1994 or the Agreement on Safeguards in its
panel request.85 The United States notes that China has asserted that certain "permissive provisions"
of the Agreement on Safeguards and Article XIX of the GATT 1994 are relevant. In the United States'

73 China's first written submission, para. 57.
74 China's first written submission, paras. 17 and 60-62.
75 China's first written submission, para. 58.
76 Ibid.
77 China's first written submission, paras. 17 and 60.
78 United States' response to China's request for a preliminary ruling, para. 4.
79 United States' response to China's request for a preliminary ruling, para. 8; second written
submission, para. 150.
80 United States' response to China's request for a preliminary ruling, para. 8.
81 United States' response to China's request for a preliminary ruling, para. 9.
82 United States' opening statement at the first meeting of the Panel, para. 51 (referring to
Appellate Body Report, EC – Tariff Preferences, paras. 106-107).
83 United States' response to China's request for a preliminary ruling, para. 11.
84 United States' response to China's request for a preliminary ruling, para. 11; opening statement at
the first meeting of the Panel, para. 46.
85 United States' response to China's request for a preliminary ruling, para. 12.

view, because China would have the provisions considered as justification for the additional duties
measure, it is for China to demonstrate their applicability.86
7.12. The United States concludes that China's arguments concerning Article 6.2 of the DSU merely
point "to additional claims" that, in its opinion, the United States could or should have presented.87
In the United States' view, however, the fact that additional claims could have been made "is not an
issue under DSU Article 6.2 that the legal basis of the claims the United States has presented are
not clear".88
7.1.1.3 Main arguments of the third parties
7.1.1.3.1 European Union
7.13. The European Union submits that the United States is incorrect to refer to Article XIX:3(a) of
the GATT 1994 and Article 8 of the Agreement on Safeguards as "affirmative defences". 89 In the
European Union's view, these provisions are in fact " the controlling provisions in this dispute "90,
because the measure at issue is "based on" them .91 According to the European Union, it is
"disingenuous" of the United States to claim that those provisions have no legal connection to the
claims raised in this d ispute.92 The European Union concludes that the Panel must dismiss the
United States' case because neither the consultations request nor the panel request make reference
to Article XIX:3(a) of the GATT 1994 and Article 8 of the Agreement on Safeguards.93
7.1.1.3.2 Russian Federation
7.14. The Russian Federation submits that " China took the [measure] at issue to exercise its
essential right under Article 8.2 of the [Agreement on Safeguards] to counter the disruptive effects
of the United States' safeguards me asures on their bilateral trade ".94 In the Russian Federation's
view, the United States' evident disagreement with this proposition " does not relieve [it] from its
obligation to present the problem clearly in accordance with Article 6.2 of the DSU, i.e. to present
the 'full picture '", including by identifying Article XIX of the GATT 1994 and the Agreement on
Safeguards in its panel request.95 According to the Russian Federation, the United States' omission
of Article XIX of the GATT 1994 and the Agreement on Safeguards from its panel request results in
a failure to "present the problem clearly" 96, as required by Article 6.2 of the DSU, because the
United States' claims under Articles I and II of the GATT 1994 "are legally and factually linked to the
safeguards disciplines under which China adopted the challenged measure[]".97
7.1.1.3.3 Türkiye
7.15. Türkiye submits that it "shares China's concern that, in its consultations and panel request,
as well as its first written submission, the United States has not articulated the c orrect legal basis
for challenging China's measure []".98 In Türkiye's view, in circumstances in which a measure falls
under WTO safeguard rules, claims under Articles I and II "as free -standing claims " should be
rejected, because they would amount to "circumventing the complaining Member's burden to make
out a prima facie case under Article XIX and the Agreement on Safeguards".99 According to Türkiye,
if the Panel agrees with China that the additional duties measure falls within the scope of the

86 United States' opening statement at the first meeting of the Panel, para. 45.
87 United States' response to China's request for a preliminary ruling, para. 13; opening statement at
the first meeting of the Panel, para. 50; second written submission, para. 147. (emphasis original)
88 United States' response to China's request for a preliminary ruling, para. 13. (emphasis original)
89 European Union's comments on China's request for a preliminary ruling, para. 4.
90 European Union's third-party written submission, para. 11; comments on China's request for a
preliminary ruling, para. 4.
91 European Union's comments on China's request for a preliminary ruling, para. 6.
92 Ibid.
93 European Union's comments on China's request for a preliminary ruling, para. 8.
94 Russian Federation's comments on China's request for a preliminary ruling, para. 5.
95 Russian Federation's comments on China's request for a preliminary ruling, para. 7.
96 Russian Federation's third-party submission, para. 53.
97 Russian Federation's comments on China's request for a preliminary ruling, para. 10.
98 Türkiye's comments on China's request for a preliminary ruling.
99 Türkiye's comments on China's request for a preliminary ruling. (emphasis original)

Article XIX and the Agreement on Safeguards , the Panel " should reject the United States' claims
under Articles I and II of the GATT 1994 as improper".100
7.1.1.3.4 Ukraine
7.16. Ukraine cautions against a "loop -hole" that would allow a complainant to "escape from its
obligation" to present the problem clearly by intentionally failing to raise claims under the applicable
covered agreements. 101 However, Ukrain e also notes that if a claim is properly governed by a
particular covered agreement, then a complainant would be "completely right" in raising only that
covered agreement in a panel request. 102 Ukraine concludes that, in undertaking its analysis, the
Panel should " look into the nature of the measure at issue to find whether it is in its terms of
reference".103
7.1.2 Analysis by the Panel
7.1.2.1 Introduction
7.17. The Panel's task is to determine whether the United States' panel request is inconsistent with
Article 6.2 of the DSU because, as argued by China, by failing to claim that the additional duties
measure is inconsistent with Article XIX of the GATT 1994 and Article 8.2 of the Agreement on
Safeguards, it does not provide a brief summary of the legal basis of the United States' complaint
sufficient to present the problem clearly.104
7.18. The Panel begins its analysis by examining the legal standard under Article 6.2 of the DSU.
7.1.2.2 Applicable legal standard
7.19. Article 6.2 of the DSU provides as follows:
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. In case the applicant requests the establishment of a panel with other than
standard terms of reference, the written request shall include the proposed text of
special terms of reference.
7.20. As indicated, China's concerns relate to the requirement that a panel request must provide a
brief summary of the legal basis of the complaint sufficient to present the problem clearly. Both
parties agree that, to comply with thi s requirement, a panel request must "plainly connect the
challenged measure(s) with the provision(s) of the covered agreements claimed to have been
infringed".105 The parties disagree on the application of this requirement in the present case.

100 Türkiye's third-party submission, para. 3.19.
101 Ukraine's third-party submission, para. 11.
102 Ibid.
103 Ukraine's third-party written submission, para. 13.
104 China's first written submission, paras. 3, 15, and 57- 58. The Panel observes that certain arguments
advanced by the parties and third parties in response to China's request under Article 6.2 touch upon issues
such as the characterization of the WTO safeguards regime as an "exception" or a "right", the burden of proof,
and the order of analysis that the Panel should adopt in these proceedings. However, these issues are legally
and conceptually separate from the question whether the panel request satisfies the specific requirements of
Article 6.2. The Panel will address these issues as necessary in the relevant parts of its Report.
Additionally, the Panel notes China's argument that, having failed to raise claims under Article XIX of
the GATT 1994 or Article 8.2 of the Agreement on Safeguards, the United States cannot be allowed to claim
that the additional duties measure is inconsistent with those provisions. In this respect, the Panel notes that
the United States has confirmed that it is not seeking findings on the consistency of the additional duties
measure with those provisions. (United States' response to China's request for a preliminary ruling, para. 12).
Accordingly, the Panel does not consider it necessary to address this aspect of China's request for a ruling
under Article 6.2 of the DSU.
105 China's second written submission, para. 48; and United States' response to China's request for a
preliminary ruling, para. 7 (quoting Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews,

7.21. The Panel agr ees with the parties that Article 6.2 of the DSU requires a panel request to
plainly connect the challenged measures with the provisions of the covered agreements claimed to
be violated. This requirement has been linked to the important role that the panel request plays in
ensuring due process, since only through such connection between the measure(s) and the relevant
provision(s) can a respondent "know what case it has to answer, and … begin preparing its
defence".106
7.22. At the same time, a panel request need not elaborate the arguments why the complainant
believes the measure at issue to be WTO-inconsistent.107 The term "arguments" in this context refers
to "the reasons put forth by a complaining party to demonstrate that the responding party's measure
does indeed infringe upon the identified treaty provision". 108 Arguments of this nature are instead
to be "set out and progressively clarified in the first written submissions, the rebuttal submissions
and the first and second panel meetings with the parties".109
7.23. Given that arguments need not be set out in the panel request, it follows that the requirement
"to provide a brief summary of the legal basis of the complaint sufficient to present the problem
clearly" is not a requirement to set out in detail the reasons underlying a complainant's case. Rather,
the Panel considers that Article 6.2 requires only that the legal basis of the complaint be set out with
sufficient clarity to enable the respondent to know what case it has to answer, and what violations
have been alleged, so that it can begin preparing its defence.110
7.24. The Panel notes that Article 6.2 does not require the panel request to explain or otherwise
justify the applicability of the particular provisions identified as the legal basis of a claim. Nor does
it require a panel request to expressly indicate the provi sions governing the characterization of a
measure for the purposes of the applicability of a given covered agreement. Rather, where particular
provisions of the covered agreements are cited in the panel request, it can be logically presupposed
that the complainant considers such provisions to be applicable and relevant to the case at hand.111
7.25. With these principles in mind, the Panel now turns to examine whether, as argued by China,
the United States' panel request contains "fundamental defects"112 that result in the United States'
claims under Articles I and II of the GATT 1994 being outside the Panel's terms of reference.
7.1.2.3 Whether the United States' claims under Articles I and II of the GATT 1994 fall
outside the Panel's terms of reference
7.26. The Panel understands China's request to be based on the proposition that the United States'
panel request is defective because Article 6.2 of the DSU required the United States to include claims
under Article XIX of the GATT 1994 and the Agreement on Safeguards in its panel request in order
to provide a brief summary of the legal basis of the complaint sufficient to present the problem
clearly. For China, the United States' failure to do so results in those claims that it did include, under
Articles I and II of the GATT 1994, falling outside the Panel's terms of reference. China's central
argument is thus that the United States' panel request is defective because it fails to provide a brief

para. 162). The parties further agree that a panel request must explain "how or why" the measure at issue is
considered by the complaining party to violate the WTO obligation in question. (See China's second written
submission, para. 48 and United States' response to China's request for a preliminary ruling, para. 7 (quoting
Appellate Body Report, EC – Selected Customs Matters, para. 130)). In this regard, the Panel recalls the
Appellate Body's statement in Korea – Pneumatic Valves (Japan) that "the use of the phrase 'how or why' [in
previous panel and Appellate Body reports] does not imply a new and different legal standard for complying
with the requirements of Article 6.2 of the DSU". (Appellate Body Report, Korea – Pneumatic Valves (Japan),
para. 5.7).
106 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 162. (internal
citations omitted) See also Appellate Body Report, Thailand – H-Beams, para. 88.
107 Appellate Body Report, EC – Bananas III, paras. 141-143.
108 Award of the Arbitrators, Colombia – Frozen Fries (Article 25), para. 4.58 (quoting Appellate Body
Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 5.14; and Korea – Dairy, para. 139).
109 Appellate Body Report, EC – Bananas III, para. 141.
110 Appellate Body Report, Thailand – H-Beams, para. 88.
111 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.30.
112 China's first written submission, paras. 5, 17, and 60-62.

summary of what China considers to be the "full" 113 or "correct"114 legal basis of the United States'
complaint.
7.27. The Panel observes that Article 6.2 of the DSU does not qualify the concept of the "legal basis
of the complaint" in terms of correctness. Article 6.2 requires only that the brief summary of the
legal basis of the complaint be "sufficient to present the problem clearly "; it does not require that
such a summary be "correct". The wording of Article 6.2 of the DSU, and the requirement that the
summary of the legal basis present the "problem" clearly, thus entrust to each complainant the
discretion to articulate the "problem" about which it is concerned in any given dispute. 115 This
includes identifying the measures it wishes to challenge and deciding which of the covered
agreements to bring claims under. Provided that the complainant clearly identifies the provisions
under which it seeks to bring claims and properly links those provisions to the measures at issue in
a manner sufficient to present its "problem" clearly, a panel request satisfies the requirements of
Article 6.2 of the DSU.
7.28. In the Panel's view, whether the panel request has identified the correct legal basis is a matter
that goes to the merits of the complainant's case116, and not to the sufficiency of its panel request.117
The Panel notes that a central part of every panel's duty to make an "objective assessment of the
matter" pursuant to Article 11 of the DSU is the obligation to assess "the applicability of the relevant
covered agreements".118 If a complainant identifies in its panel request provisions that a panel later
finds to be inapplicable to the measure at issue, its case cannot succeed, a nd it cannot raise
additional claims later in the proceedings. 119 However, a panel request that identifies what either
the respondent considers, or the panel ultimately finds, to be the incorrect legal basis for a claim is
not thereby retrospectively rendered defective in terms of Article 6.2 of the DSU.
7.29. In these proceedings, the United States has challenged the additional duties measure as being
inconsistent with Articles I and II of the GATT 1994. China has not argued that the panel request
fails to identi fy those specific provisions with sufficient clarity. Instead, China argues that the
additional duties measure is subject to the WTO safeguards regime, and not to Articles I and II of
the GATT 1994. This is a disagreement that the Panel will need to resolv e in fulfilling its mandate
under Article 11 of the DSU, as detailed in the following section. In the Panel's view, however, the
question whether the United States' panel request identified the correct legal basis is not relevant
to an examination of the compliance of that request with the requirements of Article 6.2 of the DSU.
7.30. China refers to the Appellate Body Report in EC – Tariff Preferences in support of its request.
In that case, the Appellate Body found that, in order to present the problem clearly under Article 6.2
of the DSU, the complaining party was required to identify in its panel request not just the provisions
of the GATT 1994 with which it considered the relevant tariff preferences to be inconsistent, but also

113 China's second written submission, para. 51.
114 China's opening statement at the first meeting of the Panel, para. 7.
115 The Panel notes that China generally agrees with this proposition: "It is up to the United States, as
the complaining party, to assess and determine which covered agreement or provision are considered violated
and therefore should be challenged. China, as the respondent, has no role in that decision". (China's opening
statement at the first meeting of the Panel, para. 13).
116 The Panel notes that in Australia – Apples, the Appellate Body confirmed the distinction between
issues going to a panel's jurisdiction, on the one hand, and issues going to the merits of a dispute, on the other
hand. The Appellate Body stated that "[f]or a matter to be within a panel's terms of reference—in the sense of
Articles 6.2 and 7.1 of the DSU—a complainant must identify 'the specific measures at issue' and the 'legal
basis of the complaint sufficient to present the problem clearly' … By contrast, the question of whether the
measures identified in the panel request can violate, or cause the violation of, [a WTO obligation] is a
substantive issue to be addressed and resolved on the merits". (Appellate Body Report, Australia – Apples,
paras. 423 and 425. See also Panel Report, EU – PET (Pakistan), para. 7.24).
117 In this connection, the Panel considers relevant the findings of the panel in Thailand – Cigarettes
(Philippines) (Article 21.5 – Philippines). In that case, the panel stated that "a panel must take care to ensure
that it does not make findings on disputed questions of fact or law encroaching on the merits of a claim for the
purpose of determining whether it has jurisdiction over that same claim … disputed questions of fact or law
raised at the jurisdictional phase will encroach upon the merits of a claim insofar as they would require a panel
to make findings relating to one or more legal elements that must be established to uphold the claim at issue".
(Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines), paras. 7.528-7.529).
118 Article 11 of the DSU.
119 The Panel notes that the United States agrees with this conclusion. See United States' second written
submission, para. 147. See also Appellate Body Reports, India – Patents (US), para. 89; and Indonesia – Iron
or Steel Products, para. 5.31.

the Enabling Clause120, which, if properly invoked and applied by the responding party, would have
shielded those preferences from WTO-inconsistency.121
7.31. The Panel is not persuaded that the approach to the Enabling Clause taken in EC – Tariff
Preferences is helpful in the present dispute. Indeed, the Appellate Body in EC – Tariff Preferences
recognized that its treatment of the Enabling Clause was "special" and justified by "the particular
circumstances" of that case.122 The Appellate Body thus placed particular emphasis on the Enabling
Clause's "special status in the covered agreements" 123, which engendered "particular implications
for WTO dispute settlement".124
7.32. The Panel sees no basis in either the Appellate Body's statements or the text of the DSU for
treating what was a decision based on the particular status and function of a "'special" WTO provision
as a general rule about the requirements of Article 6.2 of the DSU.
7.1.3 Conclusion
7.33. For the reasons outlined above, the Panel finds that Article 6.2 of the DSU did not require the
United States to include claims of violation under Article XIX of the GATT 1994 or the Agreement on
Safeguards in its panel request in order to provide a brief summary of the legal basis of its complaint
sufficient to present the problem clearly. Accordingly, the Panel rejects China's request to find that
the United States' panel request does not comply with the requirements of Article 6.2 of the DSU.
7.2 Applicability of the relevant covered agreements
7.2.1 Main arguments of the parties
7.2.1.1 United States
7.34. The United States argues that the Panel's analysis should begin by evaluating its claims under
Articles I and II of the GATT 1994, before addressing China's arguments under Article 8.2 of the
Agreement on Safeguards and Article XIX:3(a) of the GATT 1994.125
7.35. The United States maintains that Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994 do not apply to China's additional duties measure. In the
United States' view, Article XIX:3(a) of the GATT 1994 and Article 8.2 of th e Agreement on
Safeguards explicitly link a Member's right to suspend concessions or other obligations to the
application or extension of a safeguard measure by another Member. 126 According to the
United States, Article 8.2 of the Agreement on Safeguards allows an exporting Member affected by
a safeguard measure to suspend concessions or other obligations under the GATT 1994 if no
agreement concerning compensation has been reached among the Members concerned pursuant to
Article 8 of the Agreement on Safeguar ds. For the United States, the first analytical step to

120 The Enabling Clause, originating in a 1979 decision of the GATT contracting parties, allows
derogations from the Most-Favoured-Nation Treatment obligation laid down in Article I of the GATT 1994 in
favour of developing countries. For more information on the Enabling Clause, see the relevant page on the
WTO website: https://www.wto.org/English/docs_e/legal_e/enabling1979_e.htm (last accessed 17 May 2023).
121 Appellate Body Report, EC – Tariff Preferences, para. 110. The Appellate Body reasoned as follows:
"[A] complaining party challenging a measure taken pursuant to the Enabling Clause must allege
more than mere inconsistency with Article I:1 of the GATT 1994, for to do only that would not
convey the 'legal basis of the complaint sufficient to present the problem clearly'. … [I]t is
insufficient in WTO dispute settlement for a complainant to allege inconsistency with Article I:1 of
the GATT 1994 if the complainant seeks also to argue that the measure is not justified under the
Enabling Clause. This is especially so if the challenged measure, like that at issue here, is plainly
taken pursuant to the Enabling Clause".
122 Appellate Body Report, EC – Tariff Preferences, paras. 106 and 110.
123 Appellate Body Report, EC – Tariff Preferences, para. 107.
124 Appellate Body Report, EC – Tariff Preferences, para. 110. The Appellate Body confirmed the
exceptional nature of this approach in Brazil – Taxation. See Appellate Body Reports, Brazil – Taxation,
paras. 5.361-5.362.
125 United States' responses to Panel question No. 18, para. 30.
126 United States' response to Panel question No. 35, para. 69; second written submission,
paras. 141-143.

determine whether Article 8.2 of the Agreement on Safeguards applies to a certain measure is thus
to examine whether another Member has previously applied a safeguard measure.127
7.36. The United States argues that it has not adopted any relevant safeguard measure for the
purposes of the present dispute. 128 According to the United States, a measure is only a safeguard
measure when the right to apply a safeguard is invoked with notice under Ar ticle XIX:2 of the
GATT 1994, which the United States deems a necessary "condition precedent" for a measure to
qualify as a safeguard measure. Without this invocation, the United States argues, a Member is not
seeking legal authority under Article XIX of the GATT 1994 to suspend its obligations or withdraw or
modify its concessions.129 The United States acknowledges that the applicability of the Agreement
on Safeguards and Article XIX of the GATT 1994 is an "objective question", 130 and contends that
whether a Member has or has not invoked these disciplines by giving notice can be objectively
ascertained by a panel .131 The United States notes that, in the present case, it has not invoked
Article XIX, but rather Article XXI of the GATT 1994.132
7.37. The United States argues that the key issue in this dispute regarding the applicability of the
Agreement on Safeguards is directly addressed in Article 11.1(c) of that Agreement. 133 In this
respect, the United States recalls that under Article 11.1(c), the Agreement on Safeguards does not
apply to measures "sought, taken or maintained … pursuant to provisions of GATT 1994 other than
Article XIX". The United States understands the terms of Article 11.1(c) to mean that the Agreement
on Safeguards is inapplicable when a Member acts "under" a provision of the GATT 1994 other than
Article XIX.134 In support of this understanding, the United States refers to early draft texts of the
Agreement on Safeguards, which in its view clarify that "the availability of Article XIX as a release
from obligations does not constrain a Member's ability to take action pursuant to other provisions of
the GATT 1994". The United States also notes that references in these early draft texts to measures
"consistent with" or "taken in conformity with" other GATT provisions were changed in the final draft
of Article 11.1(c), which instead refers to measures sought, taken, or maintained "pursuant to" other
GATT provisions.135
7.38. According to the United States, the Section 232 measures were taken pursuant to Article XXI
of the GATT 1994. In this respect and in the context of Article 11.1(c), the United States refers to
the domestic legal basis and procedures for the Section 232 measures as well as relevant statements
made in WTO committees. 136 On this basis, the United States argues that the Agreement on
Safeguards does not apply to the Section 232 measures by virtue of Article 11.1(c) of that
Agreement. For the United States, this also means that Article 8.2 of the Agreement on Safeguards
and Article XIX:3(a) of the GATT 1994 are inapplicable to China's additional duties measure.137 The
United States disagrees with China's argument that the carve -out in Article 11.1(c) does not apply
in circumstances where a measure "objectively" presents the features of a safeguard meas ure,
maintaining that "if Article 11.1(c) only applied in certain circumstances, the text would say so".138
7.39. In its comments on the findings of the panel in US – Steel and Aluminium Products (China)
on the applicability of the Agreement on Safeguards and Article XIX of the GATT 1994 to the
Section 232 measures, the United States argues that those findings may be taken into account to

127 United States' response to Panel question No. 24, para. 37.
128 United States' opening statement at the first meeting of the Panel, para. 4.
129 United States' opening statement at the first meeting of the Panel, paras. 5 and 25. See also
United States' response to Panel question No. 52, para. 99 (noting that in using the term "invocation", the
United States refers to the exercise of an available right); response to Panel question No. 26, para. 50 (arguing
that the "invocation" of the right to take a safeguard measure occurs through notification of the measure and
providing an opportunity for consultation).
130 United States' opening statement at the first meeting of the Panel, para. 27 (also noting that "the
first step in the analysis is the 'objective question' of whether a Member has sought to invoke its right under
Article XIX to suspend its obligations or to withdraw concessions … If so, the 'objective question' will turn to
whether the measure at issue meets additional elements required for meeting the definition of a safeguard.").
131 United States' response to Panel question No. 92, para. 79.
132 United States' response to Panel question No. 33, para. 67; second written submission, para. 11.
133 United States' comments on China's response to Panel question No. 73, para. 16.
134 United States' second written submission, paras. 92 and 109.
135 United States' response to Panel question No. 73, paras. 25 and 27.
136 United States' second written submission, paras. 12-16 and 109; comments on China's responses to
Panel question Nos. 73 and 85.
137 United States' second written submission, paras. 91-92; response to Panel question No. 72.
138 United States' response to Panel question No. 92, para. 80.

the extent that they are persuasive. The United States considers that the findings in that panel
report on the meaning of the expression "pursuant to" in Article 11.1(c) were arrived at through a
careful assessment of the expression's ordinary meaning in its context. The United States also
regards as compelling that panel's assessment of the Section 232 measures in the context of
Article 11.1(c). The United States nevertheless emphasizes that this Panel must conduct an
objective assessment of the matter before it pursuant to Article 11 of the DSU.139
7.2.1.2 China
7.40. China argues that the Panel should first examine China's additional duties measure in relation
to Article 8.2 of the Agreement on Safeguards , and examine the United States' claims under
Articles I and II of the GATT 1994 only if the Panel were to find that Article 8.2 of the Agreement on
Safeguards does not apply .140 According to China, this approach is based on the correct
understanding of the legal relationship between the Agreement on Safeguards and Article XIX of the
GATT 1994, on the one hand, and Articles I and II of the GATT 1994, on the other hand. 141 China
submits that a measure taken pursuant to and consistent with Article 8.2 of the Agreement on
Safeguards suspends the application of other obligations under the GATT 1994, and it would thus
be incorrect for the Panel to assess claims of inconsistency under the GATT 1994 prior to determining
the law applicable to the measure at issue.142
7.41. China maintains that a measure falls under Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994 when it exhibits the following constituent features: (i) it suspends
concessions or obligations; and (ii) it pursues the objective of maintaining a substantially equivalent
level of concessions and other obligations compared to that existing under the GATT 1994 between
the Member imposing a safeguard measur e and the Member affected by it. 143 In addition, China
submits that other substantive conditions and procedural requirements may also be considered ,
including: (i) the Member imposing a safeguard and the Member affected by it failed to reach an
agreement on trade compensation ; (ii) the suspension of concessions or other obligations takes
place within 90 days after the application of the safeguard measure; (iii) 30 days have elapsed from
the day on which written notice of the suspension of concessions is received by the Council on Trade
in Goods; and (iv) the suspension of concessions or other obligations was not disapproved by the
Council on Trade in Goods.144 According to China, its additional duties measure exhibits all of these
features.145 China argues that it has thus acted "with the explicit authorization of" Article XIX:3(a)
of the GATT 1994 and Article 8.2 of the Agreement on Safeguards. 146 China further notes that the
United States has not made any claims under Article XIX:3(a) of the GATT 1994 or Article 8.2 of the
Agreement on Safeguards.147
7.42. China argues that determining whether the United States' Section 232 measures are
safeguard measures is not a threshold issue for determining whether Article 8.2 of the Agreement
on Safeguards applies to the additional duties measure. In China's view, the existence of a n
underlying safeguard measure is a condition for the consistency of a measure with Article 8.2 of the
Agreement on Safeguards and Article XIX:3(a) of the GATT 1994, but does not control the
applicability of those provisions.148 In support of this position, China argues that t he rigid time -
frames provided in Article 8 of the Agreement on Safeguards do not permit a Member that considers
itself to be affected by a safeguard measure to ascertain ex ante whether the underlying measure
is in fact a safeguard measure.149 Therefore, in China's view, the existence of an underlying
safeguard measure cannot be a condition precedent to the applicability of Article 8.2 of the
Agreement on Safeguards. Relatedly, China argues that the applicability of Article XIX of the

139 United States' communications (20 January and 10 February 2023).
140 China's response to Panel question No. 18, para. 37.
141 China's response to Panel question No. 18, para. 38.
142 China's response to Panel question No. 18, paras. 38 and 40.
143 China's response to Panel question No. 24, paras. 51-53.
144 China's response to Panel question No. 24, para. 54.
145 China's second written submission, paras. 115-118.
146 China's opening statement at the second meeting of the Panel, para. 38.
147 China's first written submission, para. 14.
148 China's response to Panel question No. 24, para. 62; second written submission, para. 92.
149 China's response to Panel question No. 24, para. 59.

GATT 1994 and the Agreement on Safeguards in the present dispute should be assessed solely based
on the additional duties measure and not the United States' Section 232 measures.150
7.43. Nevertheless, China maintains that the Section 232 measures are safeguard measures as
they present the two "constituent features" of safeguard measures identified by the Appellate Body
in Indonesia – Iron or Steel Products .151 First, China contends that the se measures impose duties
on aluminium and steel imports that exceed the bound rates set forth in the United States' tariff
schedule; thus, according to China, they "suspend a GATT obligation or withdraw or modify a GATT
concession".152 Second, referring inter alia to the statutory basis for the Section 232 measures, the
investigations and reports that led to the adoption of these measures, and the relevant
proclamations of the United States, China argues that "the Section 232 measures have a
demonstrable link to the objective of remedying serious injury to domestic industries caused by
increased imports". 153 China considers that whether the Section 232 measures are safeguard
measures must be determined through an objective assessment of the ir design, structur e, and
expected operation, and by giving due consideration to "all relevant factors" to recognize the aspects
most central to these measures.154
7.44. China also contends that the Section 232 measures include "quota agreements" between the
United States and certa in countries, which are subject to Article 11.1(b) of the Agreement on
Safeguards.155 For China, the applicability of Article 11.1(b) of the Agreement on Safeguards to
these quotas further demonstrates that the Section 232 measures are safeguard measures.156 China
considers that for measures subject to Article 11.1(b) of the Agreement on Safeguards, such as the
Section 232 measures, it has the right to suspend concessions or other obligations under Article 8.2
of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994.157
7.45. China acknowledges that the disciplines of the Agreement on Safeguards, including
Article 8.2, do not apply to a measure falling under Article 11.1(c) of that Agreement. 158 China
argues, however, that the carve -out in Article 11.1(c) of the Agreement on Safeguards does not
apply to a measure that is "objectively" a safeguard measure .159 China relies on the references to
Article XIX of the GATT 1994 in Articles 1 and 11.1(a) of the Agreement on Safeguar ds to contend
that Article XIX of the GATT 1994 is the only benchmark for determining whether a particular
measure is a safeguard measure to which the rules in the Agreement on Safeguards should apply.160
7.46. China further argues that the expression "pursuant to" in Article 11.1(c) of the Agreement on
Safeguards "requires that the measure is consistent with the relevant legal basis" and that there is
"a genuine connection between the measure and the provision of the GATT 1994 other than
Article XIX".161 In China's view, a genuine connection between the measure and a provision of the
GATT 1994 other than Article XIX cannot be established by the invocation of the provision by a
Member, but must be determined by objectively analysing the design, structure , and operation of
the measure.162 For China, the domestic legal basis of the Section 232 measures, the procedure
under which they were adopted, and the non -notification of the measures to the WTO Committee
on Safeguards are not dispositive in determining the applicabl e rules.163 China contends that the

150 China's first written submission, paras. 80-81; response to Panel question No. 73, para. 21.
151 China's first written submission, paras. 103-148 (referring to Appellate Body Report, Indonesia –
Iron or Steel Products, paras. 5.57-5.62).
152 China's first written submission, para. 103; response to Panel question No. 27, para. 71.
153 China's first written submission, para. 148. See also first written submission, paras. 113-135 (where
China argues that the domestic legal basis for the Section 232 measures, the reports underlying these
measures, as well as the proclamations constituting them mirror the factors under Articles 2 and 4 of the
Agreement on Safeguards).
154 China's response to Panel question No. 30, paras. 79-81; first written submission, paras. 89-90;
opening statement at the first meeting of the Panel, paras. 41 and 43.
155 China's first written submission, para. 149.
156 China's first written submission, para. 152.
157 China's response to Panel question No. 72.
158 China's response to Panel question No. 72, para. 16 (where China also states that Members affected
by measures falling under Article 11.1(c) of the Agreement on Safeguards would not have the right to suspend
concessions or other obligations under Article XIX:3 of the GATT 1994).
159 China's opening statement at the second meeting of the Panel, para. 46.
160 China's response to Panel question No. 73, para. 30.
161 China's response to Panel question No. 73, para. 26. (emphasis omitted)
162 China's response to Panel question No. 73, para. 27.
163 China's response to Panel question No. 85.

examination of those measures based on their objective legal characteristics would give meaning to
both Articles 11.1(a) and 11.1(c) of the Agreement on Safeguards, such that the latter is not
interpreted in a way that diminishes the application of the former.164
7.47. In its comments on the findings by the panel in US – Steel and Aluminium Products (China)
concerning the applicability of the WTO safeguards regime to the Section 232 measures, China
argues that the measures at issue before this Panel are different (namely, China's additional duties
measure and not the United States' measures). China also contends that this Panel must conduct
its own objective assessment of the matter before it. Finally, China disagrees with the fin dings in
that panel report, arguing that they were based on an inappropriate interpretation of Article 11.1(c)
of the Agreement on Safeguards and overly emphasize the United States characterization of the
Section 232 measures.165
7.2.2 Analysis by the Panel
7.2.2.1 Introduction
7.48. The parties hold diverging views on which covered agreement applies to the measure at issue
in this dispute. On the one hand, China argues that its additional duties measure is subject to
Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994, and therefore
that the application of Articles I and II of the GATT 1994 to the measure is suspended. 166 On the
other hand, the United States maintains that the challenged measure is subject to Articles I and II
of the GATT 1994, and that Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994 are not applicable.167
7.49. The Panel will begin by setting out its understanding of the provisions in the DSU concerning
the assessment of the applicability of the relevant covered agreements in a dispute. The Panel will
then decide the order in which it will conduct its analysis. Specifically, the Panel will decide whether
it will begin with a review of the United States' claims under Articles I and II of the GATT 1994 before
examining China's argument that the application of the obligations and concessions under those two
provisions is suspended within the meaning of Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994 or vice versa.
7.2.2.2 The Panel's duty to assess the applicability of the relevant covered agreements
7.50. Article 11 of the DSU requires a panel to make "an objective assessment of the matter before
it, including an objective assessment of the applicability of and conformity with the relevant covered
agreements". This requirement applies in all disputes, including those where the parties agree on
which relevant covered agreements apply to the measures at issue.168 In the specific circumstances
of this case, the requirement to make an objective assessment of the applicability of the relevant
covered agreements is of particular significance given the parties' disagreement.
7.51. Under Article 7.2 of the DSU, a panel is required to address "the relevant provisions in any
covered agreement or agreements cited by the parties to the dispute". In this dispute, while the
United States has raised claims under Articles I and II of the GATT 1994 in its panel request, China
has identified Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 as
the provisions applicable to the additional duties measure. Both parties have made extensive
arguments regarding the applicability (or non -applicability) of these provisions to the measure at
issue. The Panel therefore considers that all of these provisions are "relevant" within the meaning
of Article 7.2 of the DSU and must be addressed in the Panel's analysis.
7.52. Reading Articles 7.2 and 11 of the DSU together, the Panel is of the view that, in making an
objective assessment of the matter before it, it must determine which provisions of the covered
agreements apply to China's additional duties measure. To examine the United States' claims under
Articles I and II of the GATT 1994 without determining their relationship with other provisions raised

164 China's response to Panel question No. 73, para. 31.
165 China's communications (20 January and 10 February 2023).
166 China's first written submission, paras. 1-4.
167 United States' first written submission, paras. 50 and 67; second written submission, paras. 21
and 92.
168 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.32.

by China (specifically, Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994) would overlook a disputed issue between the parties and not assist the DSB "in making
the recommendations or in giving the rulings provided for in the covered agreements", as prescribed
in Article 11 of the DSU. The Panel further considers that this would be at odds with the aim of the
dispute settlement mechanism, as set out in Article 3.7 of the DSU, of securing a positive solution
to a dispute.
7.53. The Panel is mindful of the limits of its authority when assessing the applicability of the
relevant covered agreements to the measure at issue in this dispute. Specifically, examining the
applicability of Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 to
China's additional duties measure does not imply that the Panel may make findings on the
consistency of the additional duties measure with those two provisions. While Articles 11 and 7.2 of
the DSU require the Panel to determine the provisions applicable to the additional duties measure,
the Panel can only make findings on the claims raised a nd provisions listed in the United States'
panel request 169, which does not include Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994. Accordingly, the Panel will only consider Article 8.2 of the
Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 to the extent necessary to
determine the applicability of these provisions to the measure at issue.
7.2.2.3 Order of analysis
7.54. The Panel now turns to consider the order in which to conduct its analysis. One possibili ty
would be to begin by examining the United States' claims under Articles I and II of the GATT 1994,
and then proceeding to assess the applicability of Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994 to China's additional duties measure. The United States and Egypt
favour this approach. 170 Alternatively, the Panel could begin by examining the applicability of
Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994. Under this
approach, the Panel woul d only examine the United States' claims under Articles I and II of the
GATT 1994 if it were to conclude that Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994 do not apply to the additional duties measure. China and several
third parties are in favour of this option.171
7.55. Neither the DSU nor the relevant provisions of the GATT 1994 or the Agreement on
Safeguards prescribe a mandatory order of analysis that must be followed in addressing the issues
raised in this dispute. The Pan el thus has discretion to structure its order of analysis in the way it
considers most appropriate, provided that its choice is in line with its mandate and functions as laid
down in the DSU.172
7.56. In the specific circumstances of this case, the Panel considers that beginning with the question
of whether Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 apply
to China's additional duties measure is the most appropriate course of action, for the reasons that
follow.
7.57. Article XIX:3(a) of the GATT 1994 allows Members to "suspend … the application … of …
substantially equivalent concessions or other obligations under this Agreement" to the trade of
another Member taking action under Article XIX:1 of the GATT 1994. Article 8.2 of the Agr eement
on Safeguards, which clarifies the disciplines of Article XIX:3(a) of the GATT 1994173, similarly allows
Members, under certain conditions, to "suspend … the application of substantially equivalent
concessions or other obligations under GATT 1994" to the trade of another Member applying a

169 A panel making findings on provisions that are not listed in the panel request would be acting ultra
petita, and thus inconsistently with Article 11 of the DSU. Appellate Body Report, Chile – Price Band System,
para. 173.
170 United States' response to Panel question No. 18; Egypt's response to Panel question No. 2(a).
171 China's response to Panel question No. 18; Canada's response to Panel question No. 2(a);
European Union's response to Panel question No. 2(a); Japan's response to Panel question No. 2(a); Norway's
response to Panel question No. 2; Russian Federation's response to Panel question No. 2; Switzerland's
response to Panel question No. 2; Türkiye's response to Panel question No. 2; Ukraine's third-party
submission, para. 15.
172 See Appellate Body Report, Colombia – Textiles, para. 5.20.
173 Agreement on Safeguards, preamble, second recital: "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) …".

safeguard measure. Measures falling within the scope of Article 8.2 of the Agreement on Safeguards
and Article XIX:3(a) of the GATT 1994 thus "suspend" the application of concessions or other
obligations under the GATT 1994. In the context of these two provisions, the Panel understands the
notion of a suspension of concessions or other obligations to mean that, provided certain conditions
are met, Members affected by the application of a safeguard measure may temporar ily lift the
application of tariff concessions or other GATT obligations vis-à-vis the Member applying the
safeguard measure. In such cases, measures falling within the scope of Article 8.2 of the Agreement
on Safeguards and Article XIX:3(a) of the GATT 1994 would not simultaneously be subject to GATT
rules governing tariff concessions or other obligations that have been suspended.
7.58. The Panel therefore considers it most logical to begin its analysis by first determining whether
Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 apply to China's
additional duties measure, suspending concessions and obligations under Articles I and II of the
GATT 1994. If that were the case, the Panel would have to conclude its analysis with a find ing that
Articles I and II of the GATT 1994 do not apply to China's additional duties measure. If, however,
the Panel were to find that Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994 do not apply to the measure at issue, t his would mean that the application of Articles I
and II of the GATT 1994 has not been suspended. Consequently, the Panel would need to review
the consistency of China's additional duties measure with the latter set of provisions, as per the
claims raised by the United States.
7.59. Beginning with an assessment of the applicability of Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994 has the benefit of allowing the Panel to examine
the United States' claims under Articles I and II of the GATT 1994 only to the extent necessary, that
is, only if the Panel determines that those provisions actually apply to China's additional duties
measure. Otherwise, the Panel would need to make interim findings under Articles I and II of the
GATT 1994, which would become moot if the Panel subsequently were to find that the application of
those provisions to the additional duties measure is suspended under Article 8.2 of the Agreement
on Safeguards and Article XIX:3(a) of the GATT 1994.
7.60. Accordingly, the Panel will proceed to examine whether Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994 apply to the additional duties measure. The Panel
commences by interpreting these provisions in accordance with the customary rules of interpretation
of public international law.174
7.2.2.4 Interpretation of Article 8.2 of the Agreement on Safeguards and Article XIX:3(a)
of the GATT 1994
7.61. Article 8.2 of the Agreement on Safeguards (Level of Concessions or Other Obligations) reads:
If no agreement is reached within 30 days in the consultations under paragraph 3 of
Article 12, then the affected exporting Members shall be free, not later than 90 days
after the measure is applied, to suspend, upon the expiration of 30 days from the day
on which written notice of such suspension is received by the Council for Trade in Goods,
the application of substantially equivalent concessions or other obligations under
GATT 1994, to the trade of the Member applying the safeguard measure, the suspension
of which the Council for Trade in Goods does not disapprove.
7.62. Article XIX:3(a) of the GATT 1994 ( Emergency Action on Imports of Particular Products )
reads:
If agreement among the interested contracting parties with respect to the action is not
reached, the contracting party which proposes to take or continue the action shall,
nevertheless, be free to do so, and if such action is taken or continued, the affect ed
contracting parties shall then be free, not later than ninety days after such action is
taken, to suspend, upon the expiration of thirty days from the day on which written
notice of such suspension is received by the CONTRACTING PARTIES, the application to
the trade of the contracting party taking such action, or, in the case envisaged in
paragraph 1 (b) of this Article, to the trade of the contracting party requesting such

174 Article 3.2 of the DSU.

action, of such substantially equivalent concessions or other obligations under t his
Agreement the suspension of which the CONTRACTING PARTIES do not disapprove.
7.63. Article 8.2 of the Agreement on Safeguards sets out the right of a Member "to suspend …
concessions or other obligations under GATT 1994 [] to the trade of" another Member, provided that
certain conditions are met. The exercise of this right is part of a process laid down in Article 8 of the
Agreement on Safeguards designed to preserve the level of concessions and other obligations
existing under the GATT 1994.
7.64. In this respect, Article 8.1 of the Agreement on Safeguards requires Members proposing to
apply a safeguard measure (or seeking to extend its application) to endeavour to maintai n, vis-à-
vis other Members affected by that safeguard measure, a level of concessions or other obligations
substantially equivalent to that existing under the GATT 1994. To this effect, Article 8.1 of the
Agreement on Safeguards establishes that the Members concerned may agree on adequate means
of trade compensation for the adverse effects of the safeguard measure on their trade. Article 8.2
of the Agreement on Safeguards then stipulates that, if the Member applying the safeguard measure
and the affected ex porting Members fail to reach an agreement on adequate means of trade
compensation, the affected Members shall have the right, subject to certain conditions, to suspend
the application of substantially equivalent concessions or other obligations under the GATT 1994 to
the trade of the Member applying the safeguard measure. Next, Article 8.3 of the Agreement on
Safeguards sets out certain temporal and substantive limitations on the exercise of the right to
suspend concessions or other obligations under the G ATT 1994 vis-à-vis the Member applying a
safeguard measure.
7.65. The Panel considers that the ordinary meaning of the terms of Article 8.2 of the Agreement
on Safeguards plainly links the right to suspend concessions or other obligations under the
GATT 1994 to the application of a safeguard measure by another Member. Indeed, the provision
stipulates that affected exporting Members "shall be free … to suspend … the application of
substantially equivalent concessions or other obligations … to the trade of the Member applying the
safeguard measure".175 In the Panel's view, this language indicates that the right under Article 8.2
of the Agreement on Safeguards becomes available only to rebalance the adverse effects of a
safeguard measure. The French and Spanish versions of Article 8.2 of the Agreement on Safeguards
equally reserve the right provided in that provision only to Members affected by a " mesure de
sauvegarde" or a "medida de salvaguardia".176
7.66. An examination of the text of Article 8.2 of the Agreement on Safeguards shows that the right
to suspend concessions or other obligations under the GATT 1994 established in this provision is
subject to several requirements, including that: (a) n o agreement on adequate means of trade
compensation maintaining a level of conc essions or other obligations substantially equivalent to
those existing under the GATT 1994 is reached between the Member proposing to apply or extend
a safeguard measure and other Members having a substantial interest as exporters of the product
concerned, within 30 days from the application of the safeguard measure; (b) n ot more than 90
days have passed from the application of the safeguard measure; and (c) a Member affected by a
safeguard measure suspends the application of " substantially equivalent " concessions or other
obligations to the trade of the Member applying the safeguard measure. The Panel observes that all
of these requirements are contingent upon a safeguard measure being applied or extended by
another Member.177
7.67. The immediate context of Article 8.2 of the Agreement on Safeguards supports the Panel's
understanding. Article 8 of the Agreement on Safeguards refers to "safeguard measure" five times,
and to "such a measure" twice. Only in one case does Article 8 refer to "the measure", without
further qualification, at the end of the final sentence of paragraph 1. There, the provision stipulates
that the Members concerned may agree on adequate means of trade compensation for the adverse
effects of "the measure" on their trade. For the Panel, this can only be read as referring to the

175 Emphasis added.
176 Under Article 33(1) of the Vienna Convention, "[w]hen a treaty has been authenticated in two or
more languages, the text is equally authoritative in each language, unless the treaty provides or the parties
agree that, in case of divergence, a particular text shall prevail".
177 A fourth requirement in Article 8.2 of the Agreement on Safeguards envisages that the right to
suspend concessions or other obligations be exercised upon expiration of 30 days from the day on which
written notice of the proposed suspension of concessions or other obligations is received by the Council for
Trade in Goods, provided that the latter does not disapprove it.

"safeguard measure" mentioned at the beginning of the paragraph, which is the basis for the
negotiations and eventual agreement foreseen in this final sentence. This understanding is consistent
with the logic and the stru cture of Article 8 of the Agreement on Safeguards as a whole, which, as
noted above, envisages a process that is premised on the adoption or extension of a safeguard
measure. All other steps outlined in Article 8 of the Agreement on Safeguards flow from, and depend
on, this premise. The immediate context of Article 8.2 of the Agreement on Safeguards thus
underscores that a safeguard measure is a necessary precondition and the basis for the rights and
procedures laid out therein.
7.68. The Panel's understanding of Article 8.2 of the Agreement on Safeguards is also consistent
with the broader context of the Agreement on Safeguards. In this connection, the Panel considers
Article 11.1 of the Agreement on Safeguards (Prohibition and Elimination of Certain Measures) to be
particularly relevant. This provision establishes certain rights and obligations for Members depending
on the characterization of a measure under the Agreement on Safeguards. First, Article 11.1(a)
stipulates that Members " 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". This provision must be read in conjunction
with Article 1 of the Agreement on Safeguards, according to which the 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". Thus, Article 11.1(a) of the Agreement on Safeguards
establishes that Members can take or seek safeguard measures, which must conform with Article XIX
of the GATT 1994 applied in accordance with the Agreement on Safeguards.
7.69. Under Article 11.1(b), Members 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". To the extent that any such measures were in effect on the date of entry into force of
the WTO Agreement, they should have either been phased out within a short time -frame after the
entry into force of the Agreement on Safeguards or brought into conformity with the provisions
thereof.
7.70. Finally, Article 11.1(c) provides that the Agree ment on Safeguards does 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 agreeme nts or arrangements concluded within the framework of
GATT 1994".
7.71. Article 11.1 of the Agreement on Safeguards conditions the disciplines applicable to measures
upon their characterization under the three subparagraphs of that provision. If a Member is seeking
or taking a safeguard measure, that Member is subject to several obligations under the Agreement
on Safeguards. This includes endeavouring "to maintain a substantially equivalent level of
concessions or other obligations to that existing under the GATT 1994 between it and exporting
Members" affected by the safeguard measure as provided in Article 8.1. Relatedly, Members affected
by a safeguard measure have a right to suspend concessions or other obligations in response to that
measure under the terms of Article 8.2 of the Agreement on Safeguards. This right is, however, not
available if the underlying measure has a different characterization under the subparagraphs of
Article 11.1 of the Agreement on Safeguards, and is correspondingly subject to differen t legal
disciplines.
7.72. Reading the multiple references to a "safeguard measure" in Article 8 of the Agreement on
Safeguards in this broader context, the Panel considers that the characterization of an underlying
measure as a safeguard measure or otherwise is a necessary analytical step in determining the
applicability or inapplicability of Article 8.2 of the Agreement on Safeguards.
7.73. The Panel further considers this understanding to be consistent with the object and purpose
of the Agreement on Safeguards . The second recital of the Agreement's preamble recognizes "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". The preamble thus confirms the
distinct treatment of measures depending on their characterization under the Agreement on
Safeguards. In the Panel's view, such distinction is therefore central to the structure and logic of the
entire Agreement on Safeguards and should inform the reading of its provisions. In particular, this
suggests to the Panel that Article 8.2 of the Agreement on Safeguards can only be interpreted as

concerning rights and oblig ations related to or flowing from safeguard measures, which are the
measures over which the Agreement on Safeguards establishes multilateral control.
7.74. Based on the foregoing, the Panel considers that the ordinary meaning of the terms of
Article 8.2 of the Agreement on Safeguards, in their context and in the light of the object and purpose
of the Agreement on Safeguards, conditions the right to suspend concessions or other obligations
under the GATT 1994 upon a "safeguard measure" being applied by another Member.
7.75. Article XIX:3(a) of the GATT 1994 is the other relevant provision for the purposes of the
Panel's assessment. According to Article XIX:3(a), a Member affected by "the action" taken or
continued by another Member under paragraph 1 of the sam e provision shall be free, subject to
certain conditions, to suspend the application of GATT concessions or obligations to the trade of the
Member taking such action. Article XIX:3(a) of the GATT 1994 also provides that the GATT
concessions or obligations so suspended must be "substantially equivalent to" the "action" envisaged
under Article XIX:1 of the GATT 1994.
7.76. Under Article XIX:3(a) of the GATT 1994, for a Member to have a right to suspend concessions
or other obligations under the GATT 1994, another Member must have taken or continued an "action"
under Article XIX:1 of the GATT 1994. According to Article 1 of the Agreement on Safeguards,
measures provided for in Article XIX of the GATT 1994 shall be understood to be safeguard
measures. It follows that, like Article 8.2 of the Agreement on Safeguards, Article XIX:3(a) of the
GATT 1994 establishes a conditional right to suspend concessions or other obligations under the
GATT 1994 in response to a safeguard measure. Thus, in the Panel's view, the applicati on of a
safeguard measure is a necessary precondition under both Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994 for this right to become available to affected
Members.
7.77. The Panel notes the parties' agreement that, in the ab sence of a safeguard measure applied
by a Member, another Member would not have the right, under Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994, to suspend concessions or other obligations
under the GATT 1994.178 China, however, considers that a measure may be subject to or covered
by Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 regardless of
whether an underlying safeguard measure exists, but that in the absence of an underlying safeguard,
the measure taken in response would be inconsistent with those provisions.179 For China, a Member
would not "have the 'right' to implement a rebalancing measure" in the absence of an underlying
safeguard measure because that "would make the rebalancing me asure inconsistent with
Article 8.2". However, such a circumstance would not "make Article 8.2 inapplicable in the first
place."180
7.78. On the basis of its interpretation of Article 8.2 of the Agreement on Safeguards and
Article XIX:3(a) of the GATT 1994, the Panel is not persuaded by China's position. As the Panel has
explained, both provisions plainly link the right to suspend concessions or other obligations to the
application of a safeguard measure by a Member. It is this safeguard measure that triggers the
availability of Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994. In
the Panel's view, in the absence of an underlying safeguard measure, concessions and other
obligations under the GATT 1994 may not be suspended within the meaning of Article 8.2 of the
Agreement on Safeguards and Article XIX:3(a) of the GATT 1994, as both these provisions would
simply not apply. Any question regarding the consistency of measures taken with Article 8.2 of the
Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 would therefore not arise.
7.79. China further argues that if an underlying safeguard measure were a requirement for the
applicability of Article 8.2 of the Agreement on Safeguards, that provision would be rendered without
effect. This is because, in its view, whether a Member has applied such a safeguard measure would
have to be confirmed by a WTO panel before an exporting Member could suspend concessions or
other obligations in response , but the dispute settlement process exceeds th e timeline for the
exercise of the rights foreseen in Article 8 of the Agreement on Safeguards. Hence, China argues
that if an underlying safeguard were a condition precedent to the application of Article 8.2 of the

178 United States' second written submission, paras. 140-143; China's second written submission,
para. 91.
179 China's second written submission, paras. 92-95.
180 China's second written submission, para. 95. (emphasis omitted)

Agreement on Safeguards, it would in practice be impossible for a Member to ever avail itself of the
right provided for under Article 8.2 of the Agreement on Safeguards within the specified
time-frame.181
7.80. The Panel does not share China's view. The Panel does not interpret Article 8 of the Agreement
on Safeguards to require in all cases confirmation by a WTO panel regarding the application of a
safeguard measure by a Member before another Member can suspend concessions or other
obligations under the GATT 1994. Whether a Member has applied a safeguard measure may not be
a point of contention, and the Members concerned may resort to the provisions of Article 8 of the
Agreement on Safeguards without having recourse to dispute settlement. In the present case,
however, the Panel notes that (i) the applic ation of an underlying safeguard measure by the
United States is a point of contention; (ii) dispute settlement proceedings have been initiated; and
(iii) the parties' disagreement touches upon the determination of the relevant provisions of the
covered agreements applicable to the measure at issue. In these circumstances, the Panel is required
to examine the issue as part of its objective assessment.
7.81. Accordingly, based on its understanding of the text, the logic, and the structure of the relevant
provisions of the Agreement on Safeguards and the GATT 1994, the Panel considers that whether
Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 apply to China's
additional duties measure depends on the characterization under the Agreement on Safeguards of
the underlying measure adopted by the United States.
7.2.2.5 Whether Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994 apply to China's additional duties measure
7.82. The relevant measures of the United States, in response to which China has imposed the
additional duties measure , are the measures "Adjusting Imports of Aluminum" and "Adjusting
Imports of Steel" into the United States (the Section 232 measures).182
7.83. As a pre liminary matter, the Panel notes China's argument that the Section 232 measures
are not the measures at issue in this dispute and that the Panel should assess the applicability of
Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 to its additional
duties measure without considering the Section 232 measures.183 The United States does not object
to the consideration of the Section 232 measures by this Panel .184 Both parties have submitted
arguments and evidence concerning the background, legal basis, and application of the Section 232
measures.185
7.84. In the light of its earlier conclusion that the applicability of Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994 to the additional duties measure depends on
whether a Member has applied a safeguard measure, the Panel does not consider that it can make
an objective assessment of the applicability of the relevant provisions of the covered agreements to
the measure at issue in this dispute without reviewing the characterization of the Section 232
measures under the Agreement on Safeguards . In the Panel's view, the examination of the
arguments and evidence submitted by the parties in this connection is essential to secure a positive
solution to the present dispute. The Panel will accordingly proceed to examine the characterization
of the Section 232 measures under the Agreement on Safeguards.
7.85. The Panel recalls that Article 11.1 of the Agreement on Safeguards stipulates the disciplines
that apply to a measure depending upon its characterization under that provision .186 China argues

181 China's response to Panel question No. 35, paras. 94-95; No. 24, para. 59.
182 China's first written submission, para. 1; opening statement at the first meeting of the Panel,
para. 3. The Panel notes that the applicability of the Agreement on Safeguards and Article XIX of the
GATT 1994 to the United States' Section 232 measures was also examined by the panel in US – Steel and
Aluminium Products (China). Recalling its duty under Article 11 of the DSU, this Panel will make its own
objective assessment of the characterization of the Section 232 measures and will refer to the reasoning of
that panel to the extent that it finds the same relevant and persuasive.
183 China's first written submission, paras. 81 and 82; second written submission, paras. 119 and 121;
response to Panel question No. 24.
184 United States' response to Panel question No. 24.
185 For instance, United States' second written submission, paras. 11-17 and 132-138; China's first
written submission, section IV.D.
186 See para. 7.71 above.

that the Section 232 measures are "safeguard measures" under the Agreement on Safeguards,
which must conform to the disciplines set out in Article 11.1(a) of t hat Agreement (namely,
Article XIX of the GATT 1994 applied in accordance with the Agreement on Safeguards). China also
regards the Section 232 measures as similar to voluntary export restraints and , therefore, subject
to Article 11.1(b) of the Agreement on Safeguards. In the Un ited States' view, the Section 232
measures are "measures sought, taken or maintained … pursuant to provisions of GATT 1994 other
than Article XIX" within the meaning of Article 11.1(c) of the Agreement on Safeguards, to which
that Agreement "does not apply".
7.86. The Panel observes that, in relation to the applicability of the Agreement on Safeguards, both
parties agree that Article 11.1(c) excludes certain measures from the scope of application of that
Agreement.187 They further acknowledge that Members affecte d by measures to which the
Agreement on Safeguards does not apply do not have the right to take action under Article 8.2 of
the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994.188 The point of contention
between the parties, based on their differing interpretations of Article 11.1(c) of the Agreement on
Safeguards189, is whether the Section 232 measures are measures of the kind described in
Article 11.1(c).
7.87. The Panel will begin its analysis by setting out its understanding of Article 11.1(c) of the
Agreement on Safeguards, before turning to consider the Section 232 measures in the light of its
interpretation of that provision.
7.2.2.5.1 Interpretation of Article 11.1(c) of the Agreement on Safeguards
7.88. Article 11.1 of the Agreement on Safeguards (Prohibition and Elimination of Certain Measures)
reads:
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 does 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.

187 United States' response to Panel question No. 73; China's comments on the United States' response
to Panel question No. 73.
188 United States' response to Panel question No. 72; China's response to Panel question No. 72.
189 According to China, for the Section 232 measures to be "pursuant to" provisions of the GATT 1994
other than Article XIX, they must be "consistent with" such other provisions. China's response to Panel
question No. 73. On the other hand, the United States does not seem to consider that the expression "pursuant
to" in Article 11.1(c) means the consistency of a measure with provisions of the GATT 1994 other than
Article XIX. (See United States' second written submission, para. 116 (where the United States argues that
Article 11.1(c) precludes the application of the Agreement on Safeguards to any measure sought, taken, or
maintained "under" a provision of the GATT 1994 other than Article XIX); response to Panel question No. 73
(where the United States notes that in using the expression "pursuant to", Article 11.1(c) departs from
previous drafts of the Agreement on Safeguards, which referred to measures "consistent with" or "taken in
conformity with" certain GATT provisions)).

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.
7.89. The Panel understands the phrase " [t]his Agreement does not apply" in Article 11.1(c) to
explicitly limit the scope of application of the Agreement on Safeguards by carving out "measures
sought, taken or maintained by a Member pursuant to provisions of GATT 1994 other than
Article XIX" from the purview of that Agreement.190 This is also recognized in the French and Spanish
texts of Article 11.1(c), in which the expressions " ne s'applique pas " and " no es aplicable "
respectively signify that the Agreement on Safeguards is inapplicable to certain " mesures" or
"medidas". Further, the Panel sees no indication in the text of the Agreement on Safeguards that
the carve-out in Article 11.1(c) is subject to or qualified by other provisions in that Agreement. The
Panel t hus understands that all disciplines of the Agreement on Safeguards are inapplicable to
measures of the kind described in Article 11.1(c) of the Agreement , including Article 8.2 of the
Agreement on Safeguards, which foresees that certain rights are available only to Members affected
by safeguard measures. Moreover, the Panel does not consider that Article XIX:3(a) of the
GATT 1994 provides Members with a right to suspend concessions or other obligations under the
GATT 1994 in response to measures that are not subject to the disciplines of the Agreement on
Safeguards.191
7.90. The expression "pursuant to" in Article 11.1(c) of the Agreement on Safeguards links
"measures sought, taken or maintained by a Member" to "provisions of GATT 1994 other than
Article XIX". Depending on the context in which it is used, "pursuant to" may have different
meanings. A measure could be "pursuant to" a provision in the sense that it is consistent or in
conformity with that provision. A measure could also be "pursuant to" a provision when it is adopted
by virtue of or under that provision, regardless of whether it is consistent with that provision . The
Panel notes that the Agreement on Safeguards uses the expression "pursuant to" in different ways.
In some instances, the expression refers to a requirement of consistency with a provision of the
covered agreements; in others, it appears to denote measures taken under a provision of the
covered agreements. 192 To determine th e meaning of "pursuant to" in Article 11.1(c) of the
Agreement on Safeguards, the Panel will assess the ordinary meaning of this expression in the
context in which it appears in Article 11.1(c), and in the light of the object and purpose of the
Agreement o n Safeguards , as required by the customary rules of interpretation of public
international law.193
7.91. In Article 11.1(c) of the Agreement on Safeguards, the expression "pursuant to " is part of a
provision that pertains to the applicability of the Agreement on Safeguards. Specifically, as
suggested by the opening phrase "[t]his Agreement does not apply", Article 11.1(c) determines
whether the disciplines applicable to a measure sought, taken , or maintained by a Member are not
those provided in the Agreement on S afeguards, but those contained in "provisions of GATT 1994
other than Article XIX". In the Panel's view, to condition the applicability of "provisions of GATT 1994
other than Article XIX" to a measure upon its consistency with such other provisions would conflate
two distinct issues, namely, the applicability of the relevant covered agreements and conformity
with those agreements . In this light, the Panel is not persuaded by China's argument that the
expression "pursuant to" in Article 11.1(c) denotes consistency with provisions of the GATT 1994

190 The Panel notes that, as per the terms of Article 11.1(c), the Agreement on Safeguards also does not
apply to measures sought, taken, or maintained pursuant to "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".
191 The Panel recalls its understanding of the relationship between Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994 as set out in paragraph 7.76 above.
192 For example, Article 2.1 of the Agreement on Safeguards states that "[a] Member may apply a
safeguard measure to a product only if that Member has determined, pursuant to the provisions set out
below", that certain conditions exist. (emphasis added) In this instance, the expression "pursuant to" is part of
a provision that has been interpreted as establishing requirements with which Members must comply.
(Appellate Body Report, US – Steel Safeguards, para. 264). This expression is represented in the French and
Spanish texts of Article 2.1 with the terms "conformément" and "con arreglo a", respectively. Another example
is Article 10 of the Agreement on Safeguards, referring to "measures taken pursuant to Article XIX of GATT
1947". The French and Spanish texts of Article 10 describe these measures as "mesures … au titre de
l'article XIX du GATT de 1947" and "medidas … al amparo del artículo XIX del GATT de 1947", respectively, and
the three authentic texts of this provision do not appear to be referring to consistency of measures with the
GATT 1947.
193 Article 3.2 of the DSU.

other than Article XIX. The Panel's understanding of Article 11.1(c) is that, in the case of measures
sought, taken, or maintained by virtue of or under "provisions of GATT other than Article XIX", the
Agreement on Safeguards does not apply, irrespective of whether the measures are consistent with
such other provisions.
7.92. The Panel finds support for this understanding of Article 11.1(c) in the context provided by
the other paragraphs of Article 11.1 of the Agreement on Safeguards. In stipulating that a safeguard
measure must be consistent with certain disciplines, Article 11.1(a) requires that the measure
"conforms with" the provisions of Article XIX of the GATT 1994 applied "in accordance with" the
Agreement on Safeguards. Similarly, concerning the prohibition on seeking, taking, or maintaining
voluntary export restraints, orderly marketing arrangements , or any other similar measures ,
Article 11.1(b) directs that any such measures that are in effect on the date of the entry into force
of the WTO Agreement must be brought "into conformity with" the Agreement on Safeguards, or
phased out " in accordance with " Article 11.2 of that Agreement. Footnote 3 to Article 11.1(b)
specifies that an exporting Member may, u nder certain conditions, administer an import quota
applied as a safeguard measure "in conformity with the relevant provisions of GATT 1994 and [the
Agreement on Safeguards]". Thus, where Article 11.1 stipulates an obligation to conform with
provisions of the Agreement on Safeguards or with relevant provisions of the GATT 1994, it does so
explicitly. In contrast, Article 11.1(c) of the Agreement on Safeguards does not contain any explicit
references to consistency with "provisions of GATT 1994 other than Article XIX".
7.93. This is equally true for the French text of the Agreement on Safeguards . In Articles 11.1(a)
and 11.1(b), the French text uses the terms " conforme au " (or the plural " conformes aux " as
appropriate) and "conformément" to signify obligations to comply with provisions of the Agreement
on Safeguards or relevant provisions of the GATT 1994. On the other hand, the French text of
Article 11.1(c) conditions the inapplicability of the Agreement on Safeguards on whether the
measures in question were sought, taken, or maintained "en vertu de" provisions of the GATT 1994
other than Article XIX. The use of different terms in the English and French texts of Article 11.1(c)
when compared with the immediately preceding paragraphs of Article 11.1 indicates that "pursuant
to" in Article 11.1(c) has a different meaning to consistency with provisions of the GATT 1994 other
than Article XIX. Particularly noteworthy is the use of the expression "en vertu de" in the French text
of Article 11.1(c), which su ggests that Article 11.1(c) concerns measures sought, taken, or
maintained by virtue of or under provisions of the GATT 1994 other than Article XIX.194
7.94. In the Spanish text of the Agreement on Safeguards, the expression corresponding to
"pursuant to" in Arti cle 11.1(c) is "de conformidad con". This expression has several meanings. 195
Depending on the context, the Spanish text of the Agreement on Safeguards uses the expression
"de conformidad con" variably to indicate "consistency" with the Agreement, as well as other kinds
of relationships between a measure and the relevant provision. For example, the Spanish expression
"conformidad con" in Articles 11.1(a) and 11.1(b) of the Agreement on Safeguards appears in the
English and French texts as "conformity with" and "conformément aux", respectively. In contrast, in
footnote 1 to Article 2.1 of the Agreement on Safeguards, the terms corresponding to "conformidad
con el presente Acuerdo" are "under this Agreement" and "au titre du présent accord" in English and
French respectively, which do not seem to denote consistency.196 Thus, the Panel does not consider

194 Dictionnaire Larousse de Français (defining the expression "en vertu de" as "en conséquence de",
"par l'effet de", or "au nom de"). The Panel notes the expression "en vertu de" only features in two other
provisions of the Agreement on Safeguards, both of which confirm the Panel's understanding of this expression
as used in Article 11.1(c) of the Agreement. Article 8.1 of the Agreement on Safeguards refers to the level of
concessions and other obligations existing "en vertu du GATT de 1994", denoted in the English text as "under
GATT 1994", and thus does not suggest that concessions or obligations must be in conformity with GATT 1994.
Article 12.8 of the Agreement on Safeguards refers to notifications by Members "qui sont tenus de le faire en
vertu du présent accord". The terms corresponding to notifications "en vertu du présent accord " in the English
text of Article 12.8 are "by this Agreement". To denote the obligation of making such notifications, the terms
"by this Agreement" or "en vertu du présent accord" are used together with explicit references to a
requirement or, in French, the expression "[ils] sont tenus de le faire", respectively.
195 Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), pp. 420-421
(defining "conformidad con" as "con arreglo a", "a tenor de", "en proporción o correspondencia a", or "de la
196 For other examples in the covered agreements, see Article 3.9 of the DSU (referring to "the rights of
Members to seek authoritative interpretation … through decision-making under the WTO Agreement" in

that the use of "de conformidad con" in Article 11.1(c) in and of itself denotes that "medidas que un
Miembro trate de adoptar, adopte o manteng a" must be consistent with " otras disposiciones del
GATT de 1994, aparte del artículo XIX" for the Agreement on Safeguards to be inapplicable. In the
Panel's view, r ead in the context of a provision governing the applicability of the Agreement on
Safeguards197, "de conformidad con" must be understood as referring to measures adopted by virtue
of or under certain provisions, but not requiring consistency with such provisions. Accordingly, the
three authentic language versions of Article 11.1(c) of the Agreeme nt on Safeguards converge in
this respect.
7.95. The Panel's understanding of the terms of Article 11.1(c) comports with the broader context
of the Agreement on Safeguards . As clarified in Article 1 of the Agreement, the Agreement on
Safeguards "establishes rules for the application of safeguard measures". This "General Provision"
resonates in other provisions of the Agreement on Safeguards, which broadly relate to one of two
enquiries: (i) whether there is a right to apply safeguard measures, and (ii) if so, whether that right
has been exercised within the limits set out in the Agreement.198 The Agreement on Safeguards thus
prescribes rules and requirements for a specific kind of measure identified in that Agreement. The
consistency of measures with "provisions of GATT 1994 other than Article XIX, and Multilateral Trade
Agreements in Annex 1A other than [the Agreement on Safeguards]" is not a matter regulated by
the Agreement on Safeguards, and Article 11.1(c) must be interpreted taking this important
consideration into account.
7.96. In this connection, the Panel recalls its discussion above of the object and purpose of the
Agreement on Safeguards, which confirms that different disciplines apply to measures depending on
their characterization under the Agreemen t on Safeguards, as reflected in Article 11.1 of that
Agreement.199 In particular, the Agreement on Safeguards seeks to "re-establish multilateral control
over safeguards " (expressed through the mandatory conditions in Article 11.1(a) with which
safeguard m easures must conform) and to " eliminate measures that escape such control "
(expressed through the prohibition of the measures described in Article 11.1(b)). The object and
purpose of the Agreement on Safeguards is thus to regulate, and in particular to sec ure the WTO
consistency of, measures of the kind described in Articles 11.1(a) and 11.1(b) of the Agreement,
and not those excluded from its scope under Article 11.1(c). The Panel does not consider that an
interpretation of Article 11.1(c) of the Agreement of the Safeguards that brings the question of
whether a measure is consistent with " provisions of GATT 1994 other than Article XIX" within the
scope of the Agreement on Safeguards would be consistent with this clearly articulated aim and
focus of the Agreement.
7.97. The parties have also referred to supplementary means of interpretation, such as the
preparatory work of the Agreement on Safeguards , in support of their interpretative arguments.
Under Article 32 of the Vienna Convention, the Panel may have recourse to this preparatory work to
confirm its interpretation of Article 11.1(c) set out above. The Panel observes that early draft texts
of the Agreement on Safeguards sought to preserve the rights and obligations of contracting parties
regarding trade-restrictive measures "taken in conformity with" or "consistent with" other GATT
provisions.200 These references to conformity and consistency were removed from subsequent drafts
of the provision that became Article 11.1(c) of the Agreement on Safeguards, in favour of the
expression "pursuant to".201 The Panel also notes that references to conformity and consistency were
only removed from Article 11.1(c) of the Agreement on Safeguards , but retained in the other
paragraphs of Article 11.1, which provide context for the interpretation of Article 11.1(c). This

DSU (referring to "requests for consultations under the consultation provisions of the covered agreements" in
English, "demandes de consultations présentées au titre des dispositions des accords visés" in French, and
de los acuerdos abarcados" in Spanish); and Article 4.11 of the DSU (providing that a Member shall be free to
request "consultations under paragraph 1 of Article XXII", "consultations au titre du paragraphe 1 de l'article
XXII", and "consultas de conformidad con el párrafo 1 del artículo XXII" in English, French and Spanish,
respectively).
197 See para. 7.91 above.
198 Appellate Body Report, US – Line Pipe, para. 84.
199 See para. 7.73 above.
200 Negotiating Group on Safeguards, Chairman's Report on Status of Work in the Negotiating Group
(13 July 1990), MTN.GNG/NG9/W/25/Rev.2, p. 3; Negotiating Group on Safeguards, Draft Text of an
Agreement (31 October 1990), MTN.GNG/NG9/W/25/Rev.3, p. 9.
201 Trade Negotiations Committee, Draft Final Act Embodying The Results of the Uruguay Round of
Multilateral Trade Negotiations (20 December 1991), MTN.TNC/W/FA, p. M.7.

preparatory work thus confirms the Panel's understanding that Article 11.1(c) does not pertain to
the consistency of measures excluded from the scope of the Agreement on Safeguards.
7.98. Based on the foregoing, the Panel considers that Article 11.1(c) excludes from the scope of
the Agreement on Safeguards measures that are sought, taken, or maintained by virtue of or under
provisions of th e GATT 1994 other than Article XIX. In the Panel's view, Article 11.1(c) is not
concerned with the consistency of such measures with the provisions of the GATT 1994 pursuant to
which they are sought, taken, or maintained.
7.99. The Panel now turns to certain interpretive arguments raised by the parties. China maintains
that if a measure is "objectively" a safeguard measure, that measure could not 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) of the Agreement on Safeguards. 202 The Panel understands China 's
argument to mean that the assessment of whether a measure was sought, taken, or maintained
pursuant to provisions of the GATT 1994 "other than Article XIX" must include c onsideration of
whether the measure has certain features of safeguard measures. The Panel is not persuaded by
this argument. An examination of measures under Article 11.1(c) of the Agreement on Safeguards
must proceed on the basis of the specific terms of that provision, which provide for the inapplicability
of the Agreement on Safeguards to measures adopted "pursuant to" another provision of the
GATT 1994. In this respect, the Panel understands that, in referring to provisions of the GATT 1994
"other than Article XIX", the terms of Article 11.1(c) call for determining whether another provision
of the GATT 1994 is the legal basis in the covered agreements by virtue of or under which a Member
has sought, taken, or maintained a measure.
7.100. The Panel also notes China's concern that the Panel should not interpret Article 11.1(c) of
the Agreement on Safeguards in a manner that will "diminish the application of Article 11.1(a)".203
The Panel does not consider that its understanding of Article 11.1(c) has this effect. The Agreement
on Safeguards provides for the inapplicability of the Agreement as a whole, including Article 11.1(a),
to measures sought, taken, or maintained pursuant to provisions of the GATT 1994 ot her than
Article XIX. Exclusion of such measures from the Agreement on Safeguards is instrumental to
preserve the rights of Members under "the basic principles of GATT 1994" on which the Agreement
on Safeguards is based.204 The Panel's interpretation therefore does not diminish the application of
Article 11.1(a), but respects the distinct treatment of measures depending on their characterization
under the Agreement on Safeguards.205
7.101. Finally, both parties have advanced certain interpretive arguments concerning the
"constituent features" of or "condition precedent" for safeguard measures. 206 Noting the
United States' arguments under Article 11.1(c) of the Agreement on Safeguards, and in the light of
the interpretation of that provision rendered above , the Panel is of the view that it would be
appropriate to first determine whether the United States' Section 232 measures are excluded from
the scope of the Agreement on Safeguards by virtue of Article 11.1(c). Should the Panel find that
the Section 232 measures are n ot so excluded, it will then consider whether they can be
characterized as measures regulated by the Agreement on Safeguards and the legal standard for
such characterization. Accordingly, the Panel will now turn to examine whether the Section 232
measures were "sought, taken or maintained … pursuant to provisions of GATT 1994 other than
Article XIX".
7.2.2.5.2 Whether the United States' Section 232 measures are excluded from the scope
of application of the Agreement on Safeguards
7.102. The United States maintains that it adopted the Section 232 measures on aluminium and
steel imports pursuant to Article XXI of the GATT 1994, which concerns "Security Exceptions", a nd
thus, pursuant to a provision of the GATT 1994 other than Article XIX. China, however, argues that
the design, structure, and expected operation of the Section 232 measures demonstrate otherwise,

202 China's response to Panel question No. 73.
203 Ibid.
204 Agreement on Safeguards, preamble, fourth recital.
205 See paras. 7.68-7.71 above.
206 United States' first written submission, paras. 71-88; China's first written submission, paras. 93-102.

and relies, in support of this proposition, on the domestic legal basis for these measures, the reports
in the investigations leading to their adoption, and the legal instruments providing for the measures.
7.103. Based on the Panel's interpretation of Article 11.1(c) of the Agreement on Safeguards, the
Panel will examine whether the Section 232 measures were sought, taken, or maintained by virtue
of or under Article XXI of the GATT 1994, such that the Agreement on Safeguards does not apply.
In this respect, the Panel is guided by its duty under Article 11 of the DSU to conduct an objective
assessment of the matter before it, which in the context of Article 11.1(c) of the Agreement on
Safeguards pertains to the applicability of, and not consistency with, provisions of the GATT 1994
other than Article XIX. The Panel will assess the arguments and evidence advanced by the parties
concerning the Section 232 measures in this light.
7.104. The domestic legal basis for the United States' measures was Section 232 of the Trade
Expansion Act of 1962 titled "Safeguarding national security" (Section 232).207 Under Section 232,
the United States' Secretary of Commerce may investigate "the effects on the national security of
imports of [an] article" into the United States.208 Based on the Secretary of Commerce's findings
and recommendations, the President of the United States may take action under Section 232 to
adjust imports of the investigated article into the United States so that they will not threaten to
impair its national security.209 Section 232 also states that, in exercise of their respective authorities
under that provision, the President and the Secretary of Commerce "shall … give consideration to"
a non -exhaustive list of factors, such as the domestic production needed for the United States'
projected national defence require ments, the capacity of its domestic industries to meet such
requirements, and the importation of goods that affects the capacity of the United States to meet
such requirements.210
7.105. In April 2017, as authorized under Section 232, the Secretary of Commerce beg an
investigations into the effects of aluminium and steel imports on the United States' national
security.211 These investigations concluded that excessive aluminium and steel imports were
weakening the United States' internal economy and, therefore, threat ened to impair its national
security as defined in Section 232. In arriving at this conclusion, the Secretary of Commerce referred
to rising levels of imports of foreign aluminium and steel, and the "substantial risk" that this would
displace the United States' domestic capacity to produce aluminium and steel for critical
infrastructure and national defence.212 Specifically, the reports of these investigations note that "it
is the ability to quickly shift production capacity used for commercial products to defence 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." Thus, in the
Secretary of Commerce's view, the ris k to the financial viability of the United States' domestic
aluminium and steel industries, and their competitiveness in commercial markets, placed at risk the
United States' capability to meet its defence and critical infrastructure needs.213
7.106. Acting on the se findings and the related recommendations , the President of the
United States issued several proclamations adjusting imports of aluminium and steel into the
United States. These proclamations constitute the Section 232 measures. They provide for (i) ad
valorem tariffs of 10% and 25% on aluminium and steel imports, respectively, applicable in addition
to any duties provided in the Harmonized Tariff Schedule of the United States214; (ii) exemptions for

207 Section 232, (Exhibits USA-20, CHN-23).
208 Section 232(b), (Exhibits USA-20, CHN-23).
209 Section 232(c), (Exhibits USA-20, CHN-23).
210 Section 232(d), (Exhibits USA-20, CHN-23). The Panel notes that these criteria are also specified in
the United States Code of Federal Regulations, Title 15, Part 705, (Exhibit USA-25), which sets forth "the
procedures by which the [United States Department of Commerce] shall commence and conduct an
investigation to determine the effect on the national security of the imports of any article" and based on which
"the Secretary shall make a report and recommendation to the President for action or inaction regarding an
adjustment of the imports of the article."
211 Section 232 investigation into steel imports, (Exhibits USA-30, CHN-8); Section 232 investigation
into aluminium imports, (Exhibits USA-31, CHN-9).
212 Section 232 investigation into steel imports, (Exhibits USA-30, CHN-8), p. 55; Section 232
investigation into aluminium imports, (Exhibits USA-31, CHN-9), p. 104.
213 Section 232 investigation into steel imports, (Exhibits USA-30, CHN-8), pp. 55-56; Section 232
investigation into aluminium imports, (Exhibits USA-31, CHN-9), p. 105.
214 Proclamation 9704, (Exhibits USA-33, CHN-6), p. 11621; Proclamation 9705, (Exhibits USA-32, CHN-
5), p. 11627.

select countries from these tariffs 215; (iii) "quota treatment" for aluminium and steel imports from
select countries216; and (iv) a mechanism authorizing the United States' Secretary of Commerce to
relieve certain aluminium and steel imports from the aforementioned tariffs and quotas.217
7.107. The tariffs on aluminium and steel imports were imposed through Proclamations 9704 and
9705, respectively. These proclamations note that aluminium and steel articles are being imported
into the United States "in such quantities and under such circumstances as to threaten to impair the
national security of the United States", and state that the tariffs imposed are necessary to address
this threat. Specifically, the tariffs were imposed under these proclamations with a view to help ing
domestic aluminium and steel industries, so as to reduce the United States' need to rely on foreign
producers for aluminium and steel and, as a result, "ensure that domestic producers can continue
to supply all the [aluminium and steel] necessary for critical industries and national defense ".
Proclamations 9704 and 9705 reason that , without the relief provided through these tariffs, the
United States' domestic industries would continue to decline, leaving the United States at risk of
becoming reliant on foreign producers to meet its national security needs concerning aluminium and
steel, a situation that the proclamations describe as "fundamentally inconsistent with the safety and
security of the American people".218
7.108. Proclamations 9704 and 9705, and the "national security interests" of the United States
raised therein, formed the basis for further action by the United States.219 In this respect, the Panel
considers relevant the exemptions granted to certain countries from the tariffs on aluminium and
steel imports. Following determinations that impo rts from those countries no longer threatened to
impair its national security, the United States exempted (i) from tariffs on aluminium imports,
Argentina and Australia; and (ii) from tariffs on steel imports, Argentina, Australia, Brazil, and the
Republic of Korea. 220 These exemptions were granted on the basis of "important security
relationships" between the United States and the exempted countries, and their shared concern
regarding circumstances that threaten to impair national security, namely global excess capacity in
aluminium and steel.221 Proclamations 9710 and 9711 describe in greater detail the various facets
of the United States' security relationships with the countries exempted from the aluminium and
steel tariffs, including security, defence and intelligence partnerships, shared commitments towards
addressing security concerns, and military alliances.222
7.109. The application of these tariffs and the related exemptions by the United States reveals the
design and expected operation of the Section 232 measures. In connection with the tariffs, the Panel
notes that Proclamations 9704 and 9705 provide for their modification or termination based on
monitoring and review of the "status of [aluminium or steel] imports with respec t to the national
security" of the United States.223 The United States in fact modified the duty applicable to steel
imports from Türkiye following such monitoring and review.224 The Panel also considers relevant that

215 Proclamation 9740, (Exhibits USA-36, CHN-11), p. 20685; Proclamation 9739, (Exhibit USA-37),
pp. 20678-20679; Proclamation 9759, (Exhibits USA-38, CHN-12), p. 25858; and Proclamation 9758, (Exhibits
USA-39, CHN-13), p. 25850.
216 Proclamation 9740, (Exhibits USA-36, CHN-11), Annex; Proclamation 9759, (Exhibits USA-38,
CHN-12), Annex; Proclamation 9758, (Exhibits USA-39, CHN-13), Annex.
217 Proclamation 9704, (Exhibits USA-33, CHN-6), p. 11621; Proclamation 9705, (Exhibits USA-32,
CHN-5), p. 11627; Proclamation 9776, (Exhibit USA-42), p. 45020; Proclamation 9777, (Exhibit USA-41),
p. 45026.
218 Proclamation 9704, (Exhibits USA-33, CHN-6), pp. 11619-11620; Proclamation 9705,
(Exhibits USA-32, CHN-5), pp. 11626-11627.
219 Proclamation 9711, (Exhibits USA-34, CHN-10), p. 13361; Proclamation 9710, (Exhibit USA-35),
p. 13355; Proclamation 9740, (Exhibits USA-36, CHN-11), p. 20683; Proclamation 9739, (Exhibit USA-37),
p. 20677; Proclamation 9759, (Exhibits USA-38, CHN-12), p. 25857; Proclamation 9758, (Exhibits USA-39,
CHN-13), p. 25849; Proclamation 9772, (Exhibit USA-40), p. 40429; Proclamation 9777, (Exhibit USA-41),
p. 45025; and Proclamation 9776, (Exhibit USA-42), p. 45019.
220 Proclamation 9740, (Exhibits USA-36, CHN-11), p. 20685; Proclamation 9739, (Exhibit USA-37),
pp. 20678-20679; Proclamation 9759, (Exhibits USA-38, CHN-12), p. 25858; and Proclamation 9758,
(Exhibits USA-39, CHN-13), p. 25850.
221 Proclamation 9704, (Exhibits USA-33, CHN-6), p. 11620; Proclamation 9705, (Exhibits USA-32,
CHN-5), p. 11626.
222 Proclamation 9711, (Exhibits USA-34, CHN-10), pp. 13361-13362; Proclamation 9710,
(Exhibit USA-35), pp. 13355-13356.
223 Proclamation 9704, (Exhibits USA-33, CHN-6), pp. 11621-11622; Proclamation 9705,
(Exhibits USA-32, CHN-5), pp. 11627-11628.
224 Proclamation 9772, (Exhibit USA-40), p. 40429.

any exemptions from the aluminium and st eel tariffs were temporarily applied 225, until the
United States secured "an effective, long-term alternative means" to address the contribution of the
exempted countries to the threatened impairment of its national security. 226 Such "long -term
alternative means" included quotas restricting the quantities of aluminium and steel imported into
the United States from the exempted country 227, which were previously identified by the
United States as appropriate means to ensure that the exemptions do not undermine the national
security objectives of the tariffs on aluminium and steel imports.228
7.110. The product coverage of the Section 232 measures is similarly revealing of the national
security objectives pursued by the United States in adopting these measures. Tariffs were imposed
on aluminium and steel articles that the United States found, following the investigations by the
Secretary of Commerce, to have applications for defence and critical infrastructure. 229 The
Section 232 measures also include a mechanism under which certain aluminium and steel articles
which were otherwise subjected to tariffs and quotas could be excluded from them on the basis of
"specific national security considerations".230 This mechanism was elaborated in the rules issued by
the Bureau of Industry and Security of the United States Department of Commerce. The rules
provide that, in granting exclusions based on national security considerations, the United States
Department of Commerce can consider impacts on the United States' national security that may
result from not approving an exclusion. They additionally require that "the demonstrated concern
with [US] national security would need to be tangible and clearly explained and ultimately
determined by the [US] Government".231
7.111. In the Panel's view, the abovementioned features of the Section 232 measures demonstrate
that they were designed and expected to operate to address the threat to national security that the
United States had determined to arise from rising levels of a luminium and steel imports. The Panel
observes that the United States' national security objectives are reflected both in the application
(tariffs, quotas) and non -application (exemptions, exclusions) of the Section 232 measures. The
prescribed procedure for the adoption, modification, and removal of the Section 232 measures, and
especially the provisions made for consultations with domestic authorities such as the United States'
Secretary of Defense232, further support the Panel's view.
7.112. The United States also outlined its national security objectives relating to the Section 232
measures in its communications to WTO councils and committees, linking them to Article XXI of the
GATT 1994. Before adopting the Section 232 measures, the United States informed the Council for
Trade in Goods that its ongoing investigations into the effects of aluminium and steel imports on
national security were to determine whether th ose imports were threatening its ability to meet its
national security needs.233 Following the adoption of the Section 232 measures, the United States
referred to the findings of its completed investigations and provided information "pursuant to
Section 232 of the Trade Expansion Act of 1962, as amended, and consistent with the Decision
Concerning Article XXI of the General Agreement taken by the GATT Council on
30 November 1982".234 In a communication addressed to the Committee on Safeguards, responding
to China's request for consultations on the Section 232 measures under Article 12.3 of the
Agreement on Safeguards, the United States noted the domestic legal basis pursuant to which it had
taken action, and reiterated that it had provided information to the WTO Council for Trade in Goods

225 Proclamation 9711, (Exhibits USA-34, CHN-10), p. 13362; Proclamation 9710, (Exhibit USA-35),
p. 13356.
226 Proclamation 9740, (Exhibits USA-36, CHN-11), pp. 20683-20684; Proclamation 9759,
(Exhibits USA-38, CHN-12), pp. 25857-25858; and Proclamation 9758, (Exhibits USA-39, CHN-13), p. 25850.
227 Proclamation 9740, (Exhibits USA-36, CHN-11), p. 20685; Proclamation 9759, (Exhibits USA-38,
CHN-12), p. 25858; and Proclamation 9758, (Exhibits USA-39, CHN-13), p. 25850.
228 Proclamation 9711, (Exhibits USA-34, CHN-10), p. 13363; Proclamation 9710, (Exhibit USA-35),
p. 13357.
229 See Proclamation 9704, (Exhibits USA-33, CHN-6), p. 11621; Proclamation 9705, (Exhibits USA-32,
CHN-5), p. 11627; Section 232 investigation into steel imports, (Exhibits USA-30, CHN-8), pp. 21-22 and
Appendices H and I; Section 232 investigation into aluminium imports, (Exhibits USA-31, CHN-9), pp. 24-38.
230 Proclamation 9704, (Exhibits USA-33, CHN-6), p. 11621; Proclamation 9705, (Exhibits USA-32,
CHN-5), p. 11627; Proclamation 9777, (Exhibit USA-41), p. 45026; Proclamation 9776, (Exhibit USA-42),
p. 45020.
231 BIS rule of 11 September 2018, (Exhibit USA-44), p. 46062.
232 See Section 232(b), (Exhibits USA-20, CHN-23); Proclamation 9704, (Exhibits USA-33, CHN-6),
pp. 11621-11622; Proclamation 9705, (Exhibits USA-32, CHN-5), pp. 11627-11628.
233 Council for Trade in Goods, Minutes of the meeting held on 10 November 2017, G/C/M/130.
234 Council for Trade in Goods, Minutes of the meeting held on 23 and 26 March 2018, G/C/M/131.

"consistent with the Decision Concerning Article XXI of the General Agreement taken by the GATT
Council on 30 November 1982". 235 Considered together with the features of the Section 232
measures discussed above, these communications indicate that the legal basis in the covered
agreements pursuant to which the United States has sought, taken, or maintained these measures
is Article XXI of the GATT 1994.
7.113. China argues that the domestic legal basis, domestic procedures, and notifications to the
WTO are not determinative for the characterization of a measure under the covered agreements.236
The Panel agrees. At the same time, the Panel recalls that the characterization of the measures in
the present case must proceed from the terms of the relevant provision itself, that is Article 11.1(c)
of the Agreement on Safeguards. This provision calls for a determination of whether a Member has
adopted measures acting under or by virtue of provisions of the GATT 1994 other than Article XIX.
In these circumstances, the Panel considers that the domestic legal basis and procedures as well as
notifications concerning the adoption of the measures are relevant evidence of the legal basis under
the covered agreements pursuant to which the Section 232 measures were sought, taken, or
maintained. The Panel further notes that it has not consid ered this evidence in isolation, but in
conjunction with aspects of the Section 232 measures that demonstrate how they were designed,
applied, and expected to operate.
7.114. China also argues that Section 232, the reports of the investigation into aluminium and steel
imports, and the proclamations adjusting these imports into the United States, all address the effect
of imports on the United States' relevant domestic industries, and thus mirror the inquiry under
Articles 2 and 4 of the Agreement on Safeguards int o whether a "domestic industry" is suffering
from "serious injury" due to "increased quantities" of imports. China contends that the Panel should
accordingly find the Agreement on Safeguards applicable to the Section 232 measures.
7.115. The Panel is not persuade d by this argument. The Panel notes that the references to the
economic welfare of domestic industries in each of the instruments mentioned above are in the
context of the relationship of such economic welfare to the United States' national security. Under
Section 232, the relevant factors for the consideration of the Secretary of Commerce and the
President include the impact of foreign competition on the economic welfare of domestic industries,
substantial unemployment, decrease in revenues of government, and loss of skills or investment,
among others. These provide the basis under which the weakening of the United States' internal
economy can be determined by the relevant authorities of the United States to impair its national
security. In the same vein, the findings of the Secretary of Commerce on the impact of rising levels
of imports on domestic aluminium and steel industries , and the corresponding adjustments
recommended, follow the Secretary's conclusion that (i) certain aluminium and steel products , as
well as their domestic production , are essential to the United States' national security, national
defence, and critical infrastructure; and (ii) falling domestic capacity in these industries due to rising
import competition would place at risk the ability of the United States' domestic industries to cater
to its national security needs, particularly during an unexpected or extended conflict or national
emergency.
7.116. The Section 232 measures further implement the recommendations of the Secretary of
Commerce, including with respect to reviving idled facilities, opening closed smelters and mills,
preserving necessary skills, and maintaining or increasing production, for the specific purpose of
securing aluminium and steel necessary for critical industries and national defence. The references
to the economic welfare of the United States' domestic industries in the instruments considered
above thus constitute one aspect of the United States' determination that there exists a threat to its
national security. This aspect of the Section 232 measures cannot be divorced from its background
and context, which reflect the measures' national security objectives and confirms that they were
sought, taken, or maintained pursuant to Article XXI of the GATT 1994.

235 Committee on Safeguards, Communication from the United States, G/SG/168. The United States
noted that the proclamations constituting the Section 232 measures were issued "pursuant to Section 232 of
the Trade Expansion Act of 1962" and not "pursuant Section 201 of the Trade Act of 1974, which is the law
under which the United States imposes safeguard measures". Accordingly, the United States maintained that
the Section 232 measures were "not safeguard measures" and declined to engage in consultations under the
Agreement on Safeguards.
236 China's response to Panel question No. 85.

7.117. China refers to a memorandum issued by the United States' Secretary of Defense, which
states that the findings of the investigations into aluminium and steel imports do not "impact the
ability of [Department of Defense] program s to acquire the steel or aluminum necessary to meet
national defense requirements".237 According to China, this indicates that a central objective of the
Section 232 measures is "to protect and remedy the condition of the domestic [US] industries for
their own sake, and not merely insofar as these industries are necessary to meet national defence
requirements".238 The Panel notes that the memorandum referenced by China was issued as part of
the consultation process between the Department of Commerce and Depa rtment of Defense
provided for in Section 232. The memorandum refers to the risk posed to the United States' national
security by imports of aluminium and steel and "concurs with the Department of Commerce 's
conclusion that imports of foreign steel and alu minum based on unfair trading practices impair the
national security".239 In the Panel's view, this supports the understanding set out above that the
Section 232 measures pursue national security objectives . The additional considerations raised by
China regarding the United States' ability to acquire aluminium and steel for its national defence
needs pertain to whether the Section 232 measures meet the requirements of Article XXI of the
GATT 1994, rather than whether they were sought, taken, or maintained pursuant to that provision.
In this connection, the Panel recalls its earlier conclusion that Article 11.1(c) concerns whether
certain measures were sought, taken, or maintained by virtue of or under provisions of the
GATT 1994 other than Article XIX, and not whether they are consistent with such other provisions.
7.118. Finally, the Panel notes that the characterization of the Section 232 measures under the
Agreement on Safeguards was previously examined by the panel in United States – Steel and
Aluminium Products (China). As noted above240, the Panel sought the parties' views on the findings
in that panel report concerning the applicability of the WTO safeguards regime to the Section 232
measures and on the relevance of those findings for this Panel's analysis, in response to which both
parties emphasized this Panel's duty under Article 11 of the DSU. Following its examination of the
Section 232 measures, the Panel concurs with the findings of the panel in United States – Steel and
Aluminium Products (China) 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 Arti cle XXI of the GATT 1994".241 Based on the
Panel's understanding of Article 11.1(c) and the relevance of domestic legal status and WTO
notifications for the characterization of measures under that provision, t he Panel also concurs with
that panel's treatment of the same considerations.242
7.119. In the light of its conclusion that the Section 232 measures were sought, taken, or
maintained pursuant to a provision of the GATT 1994 other than Article XIX, the Panel finds that the
Agreement on Safeguards does not apply to these measures, as provided for in Article 11.1(c) of
that Agreement. As noted above, the rights under Article 8.2 of the Agreement on Safeguards and,
relatedly, Article XIX:3(a) of the GATT 1994, are unavailable in respect of measures to which the
Agreement on Safeguards does not apply. Accordingly, the Panel finds that Article 8.2 of the
Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 do not apply to China's additional
duties measure.
7.2.3 Conclusion
7.120. Having found that Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994 do not apply to China's additional duties measure, the Panel consequently finds that the
application of Articles I and II of the GATT 1994 is not suspended in relation to this measure. The
Panel will accordingly proceed to examine the United States' claims under Articles I and II of the
GATT 1994 in turn.

237 United States Secretary of Defense Memorandum, (Exhibit CHN-14), p. 1.
238 China's first written submission, paras. 137-138 (also noting that according to this memorandum,
"the [US] military requirements for steel and aluminum each represent about three percent of [US]
production").
239 United States Secretary of Defense Memorandum, (Exhibit CHN-14), p. 1.
240 See section 1.3.1 above.
241 Panel Report, US – Steel and Aluminium Products (China), para. 7.96.
242 Panel Report, US – Steel and Aluminium Products (China), para. 7.83, footnote 383, and para. 7.96.

7.3 United States' claim under Article I:1 of the GATT 1994
7.3.1 Main arguments of the parties
7.3.1.1 United States
7.121. The United States argues that the additional duties measure is inconsistent with Article I:1
of the GATT 1994 because it fails to extend to certain products of the United States an advantage
granted by China to like products originating in other countries .243 In the United States' view, a
measure is inconsistent with Article I:1 of the GATT 1994 if: (a) it is covered by Article I:1; (b) the
subject imports are like products within the meaning of Article I:1; (c) the challenged measure
confers an "advantage, favour, privilege, or immunity" to a product originating in (or destined for)
another country; and (d) such "advantage, favour, privilege, or immunity " is not extended
"immediately" and "unconditionally" to subject imports.244 According to the United States, China's
additional duties measure meets all four of these elements.245
7.122. With respect to the first element, the United States submits that the additional duties
measure is "explicitly covered by the text" of Article I:1.246 This is so because Article I:1 of the GATT
applies to "customs duties and charges of any kind imposed on or in connecti on with importation",
a term that would include the additional duties at issue in this dispute.247 The United States further
notes that Article I:1 applies both to duties that have been bound as part of a WTO Member's
schedule under Article II of the GATT 1994 and to unbound duties, as well as to duties that are set
below a bound rate.248 As such, the United States considers that Article I:1 requires a WTO Member
that applies a duty rate below its bound rate to import s from some WTO Members to apply that
same duty rate to imports of like products from all WTO Members.249
7.123. With respect to the second element, the United States argues that "e ach [US] product
subject to China's measure is 'like' a product from other countries not subject to the additional duties
within the meaning of Article I:1".250 The United States recalls that, in past disputes, WTO
adjudicators have found that where the only distinction between two sets of products is the country
of origin, it may be presumed that the two sets are like products. 251 In the United States' view,
China's measure discriminates against U nited States products solely on the basis of origin, leaving
unchanged the rate of duty applicable to the same products originating in other countries, including
all other WTO Members.252 Accordingly, the United States considers that the like product element of
Article I:1 is satisfied.253
7.124. Turning to the third element, the United States submits that the additional duties measure
confers an advantage on like products of other Members because it impose s additional duties on
certain United States products, while leaving unchanged the rate of duty applicable to goods of all
other countries, including all other WTO Members .254 Noting that past GATT and WTO panels have
interpreted the term "advantage" broadly, the United States argues that providing a lower duty rate
clearly constitutes an advantage within the meaning of Article I:1.255 In particular, the United States
considers that, by providing a lower rate of duty to the like products of other countries as compared
with United States products, the additional duties measure provides "more favourable competitive

243 United States' first written submission, para. 33.
244 United States' first written submission, para. 34 (referring to Appellate Body Reports, EC – Seal
Products, para. 5.86).
245 United States' first written submission, para. 34.
246 United States' first written submission, para. 35.
247 Ibid.
248 United States' first written submission, para. 36 (referring to GATT Panel Report, Spain – Unroasted
Coffee, adopted on 11 June 1981, BISD 35S/245).
249 United States' first written submission, para. 36.
250 United States' first written submission, para. 38.
251 United States' first written submission, paras. 39-40 (referring to Panel Reports, Indonesia – Autos,
252 United States' first written submission, paras. 38 and 41.
253 United States' first written submission, para. 41.
254 United States' first written submission, para. 42.
255 United States' first written submission, para. 43 (referring to GATT Panel Report, US – Non-Rubber
Footwear, adopted 19 June 1992, BISD 39S/128, para. 69, and Panel Report, Colombia – Ports of Entry,
para. 7.340).

opportunities" to the former, or "affects the competitive relationship" between the two groups of
products, thus conferring an "advantage" within the meaning of Article I:1.256
7.125. Finally, turning to the fourth element, the United States argues that the advantage provided
by the additional duties measure is not "accorded immediately and unconditionally" to like products
from the United States. For the United States, the additional duties measure does not accord to
United States products the "advantage" of lower tariff rates conferred on non-United States products
"at once", and is therefore inconsistent with this element of Article I:1.257
7.3.1.2 China
7.126. China does not deny that, if assessed "in isolation" against its general Most-Favoured Nation
(MFN) tariff rates, the additional duties measure imposes duties that "exceed the applied MFN
rates".258 However, China argues that the additional duties measure is not inconsistent with
Article I:1 of the GATT 1994 because it was taken "pursuant to and consistent with" Article 8.2 of
the Agreement on Safeguards. 259 Accordingly, in China's view, the MFN obligation in Article I:1 of
the GATT 1994 has been "properly suspended and not breached".260
7.3.2 Analysis by the Panel
7.127. The question before the Panel is whether, as the United States claims, the additional duties
measure is inconsistent with Article I:1 of the GATT 1994. China has responded to the United States'
claim by arguing that Article I:1 is "suspended" in respect of the additional duties measure, and
therefore not breached. China does not contest that the additional duties mea sure imposes duties
on United States products in excess of those applied on like products from other WTO Members. Nor
has China addressed any of the specific arguments raised by the United States in support of its
position that the additional duties measur e meets the four requirements for inconsistency with
Article I:1 articulated in that provision.
7.128. The Panel concluded, in the previous section of this Report, that Article XIX:3(a) of the
GATT 1994 and Article 8.2 of the Agreement on Safeguards do not apply to the additional duties
measure. The Panel further found that, consequently, the application of Articles I and II of the
GATT 1994 is not suspended in relation to this measure. As such, China's argument that the
additional duties measure is not inconsistent with Article I:1 because the application of that provision
is suspended must be rejected.
7.129. In the absence of any further argumentation on China's part concerning the consistency of
the additional duties measure with Article I:1 of the GATT 1994, the Pane l considers that the
United States' claim under Article I:1 is uncontested. Nevertheless, in accordance with its duty to
make an objective assessment of the matter before it as laid down in Article 11 of the DSU, the
Panel cannot simply accept the United States' arguments without further analysis. Rather, the Panel
must satisfy itself as to whether the United States has established a prima facie case that the
additional duties measure is inconsistent with Article I:1 of the GATT 1994.261 To that end, the Panel
commences its analysis with the text of the relevant provision.
7.3.2.1 The applicable legal standard
7.130. Article I:1 of the GATT 1994 provides as follows:
With respect to customs duties and charges of any kind imposed on or in connection
with importation or export ation 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 res pect to all matters referred to in paragraphs 2 and 4 of

256 United States' first written submission, paras. 43 and 45.
257 United States' first written submission, paras. 46 and 47.
258 China's response to Panel question No. 20, para. 43.
259 Ibid.
260 Ibid.
261 See e.g. Panel Reports, US – Poultry (China), para. 7.445; Saudi Arabia – IPRs, para. 7.40; and
China – TRQs, para. 7.21.

Article III,* any advantage, favour, privilege or immunity granted by any contracting
party to any product originating in or destined for any other country shall be accorded
immediately and unconditi onally to the like product originating in or destined for the
territories of all other contracting parties.
7.131. Article I:1 prohibits, with respect to measures falling within its scope of application,
discrimination among like products originating in or destin ed for different countries. The obligation
to accord MFN treatment as provided for in Article I:1 has been understood as protecting
expectations of equal competitive opportunities for like imported products from any Member.262
7.132. To establish that a measure is inconsistent with Article I:1, 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 products within the meaning of Article I:1; (c) the measure at issue 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.263 The Panel will examine
whether the United States has demonstrated that the additional duties measure satisfies these four
elements.
7.3.2.2 Whether the additional duties measure is inconsistent with Article I:1 of the
GATT 1994
7.133. Article I:1 of the GATT 1994 applies inter alia to "customs duties and charges of any kind
imposed on or in connection with importation". The Panel understands "customs duties" to refer to
charges on goods that accrue at the moment and by virtue of importation or exportation.264
7.134. The Implementation Notice describes the additional duties as "additional tariff rate[s]" that
apply in addition to "current applied base tariff rates". 265 It states that the additional tariff rates
apply to certain specified "imported" products. 266 Moreover, it was formally issued by the State
Council Customs Tariff Commission . Taken together, the Panel considers that these facts are
sufficient to establish that the measure imposes duties that fall within the scope of the phrase
"customs duties and charges of any kind imposed on or in connection with importation". The Panel
thus considers that the measure is subject to the requirements of Article I:1.
7.135. With respect to whether the products at issue are like within the meaning of Article I:1, WTO
adjudicators have consistently held that w hen a measure makes a distinction between products
based exclusively on their origin, the likeness of such products can be presumed.267 The additional
duties measure applies additional tariff rates exclusively on products "originating from the
United States".268 It thus makes a distinction between products solely on the basis of origin, i.e.
whether they originate in the United States or in any other country. The Panel therefore finds that
the United States' products subject to the additional duties can be presumed to be like the equivalent
products from other countries that are not subject to the additional duties measure.
7.136. The additional duties measure applies "additional tariff rates" on certain products originating
in the United States, but does not increase the tariffs applicable to like products originating in any
other country. In effect, this means that products from o ther countries are subject to a lower tariff
rate than like products originating in the United States. In the Panel's view, lower tariff rates
constitute an "advantage" within the meaning of Article I:1 of the GATT 1994 because they create

262 Panel Report, US – Steel and Aluminium Products (China), para. 7.51.
263 Appellate Body Reports, EC – Seal Products, para. 5.86.
264 Appellate Body Reports, China – Auto Parts, para. 158.
265 Implementation Notice, (Exhibit USA-1), paras. 1, 2, and 4.
266 Implementation Notice, (Exhibit USA-1).
267 Appellate Body Report, Argentina – Financial Services, para. 6.36. See also Panel Reports,
Colombia – Ports of Entry, para. 7.355; and US – Poultry (China), paras. 7.424-7.432.
268 Implementation Notice, (Exhibit USA-1), paras. 1 and 2.

more favourable import opportunities and thus affect the competitive relationship between those
products benefiting from lower tariff rates and those subject to higher tariff rates.269
7.137. Finally, because the additional duties measure applies additional tariff rates only on products
originating in the United States, it does not accord the advantage of lower tariff rates "immediately
and unconditionally" to those products.
7.138. Accordingly, the Panel finds that the United States has demonstrated that the additional
duties measure is inconsistent with Article I:1 of the GATT 1994 because, with respect to customs
duties imposed on or in connection with importation, it fails to accord an advantage granted to like
products originating in other countries immediately and unconditionally to products originating in
the United States.
7.3.3 Conclusion
7.139. For the reasons outlined above, the Panel concludes that the additional duties measure is
inconsistent with Article I:1 of the GATT 1994 because, with respect to customs duties imposed on
or in connect ion with importation , it fails to accord an advantage granted to products originating
outside the United States immediately and unconditionally to products originating in the
United States.
7.4 United States' claim under Articles II:1(a) and II:1(b) of the GATT 1994
7.4.1 Main arguments of the parties
7.4.1.1 United States
7.140. The United States claims that China's additional duties measure is inconsistent with
Articles II:1(a) and II:1(b) of the GATT 1994 because it imposes duties on products originating in
the United States in excess of China's bound rate and provides less favourable treatment to such
products.270 Noting that a measure that violates Article II:1(b) is necessarily inconsistent with
Article II:1(a) as well, the United States first elaborates its claim under Article II:1(b).271
7.141. In the United States' view, a measure violates Article II:1(b) of the GATT 1994 where it
results in the imposition of duties that are in excess of the duties provided for in the relevant
Member's schedule.272 According to the United States, since Article II:1(b) covers both "ordinary
customs duties" and "other duties or charges" 273, it is " legally immaterial" whether the additional
duties constitute "ordinary customs duties " or "other duties or charges " because, under either
characterization, the duties exceed China 's rates bound in its Schedule.274 Nevertheless, arguing
that "ordinary customs duties" typically relate to either the value or the volume of imported goods,
whereas "other duties and charges " form a r esidual category that includes any financial
responsibilities resulting from the importation of goods that do not qualify as "ordinary customs
duties", the United States submits that the additional duties measure appears to impose "ordinary
customs duties".275
7.142. The United States submits that, in respect of 123 of the 128 tariff lines covered by the
additional duties measure276, China imposes "ordinary customs duties" in excess of the bound rate

269 The Panel notes that in Canada – Autos, the Appellate Body found that an import duty exemption
applied to products from some Members but not others was inconsistent with Article I:1 of the GATT 1994. See
Appellate Body Report, Canada – Autos, paras. 80 and 81. Similarly, the additional duties measure effectively
exempts products originating outside the United States from the "additional tariff rates" applied to products
originating in the United States.
270 United States' first written submission, para. 51.
271 United States' first written submission, para. 55.
272 United States' first written submission, para. 54.
273 United States' first written submission, paras. 58-59.
274 United States' first written submission, para. 59.
275 United States' first written submission, para. 60 (referring to Panel Report, Dominican Republic –
Safeguard Measures, paras. 7.79-7.85).
276 In its first written submission, the United States argued that the additional duties measure resulted
in the imposition of duties in excess of China's bound rates in respect of all 128 tariff lines covered by the

commitments contained in its Schedule, and therefore violates Article II:1(b).277 In the alternative,
the United States submits that if the Panel were to find that the additional duties measure imposes
"other duties or charges", the measure is inconsistent with Article II:1(b) because the duties
imposed by the additional duties measure are not reflected in China's Schedule of Concessions.278
7.143. Turning to Article II:1(a) of the GATT 1994, the United States argues that "Article II:1(b)
proscribes the type of measures that are equally inconsistent with Article II:1(a)", and ther efore
submits that, having established the inconsistency of the additional duties measure with
Article II:1(b), the United States has also demonstrated that the measure is inconsistent with
Article II:1(a).279 The United States' concludes that, by imposing duties in excess of its bound rates
on products originating in the United States, China has correspondingly accorded less favourable to
these products and breached Article II:1(a) as well.280
7.4.1.2 China
7.144. China submits that the additional duties measure is not inc onsistent with Article II:1(a) or
II:1(b) because the measure was " taken pursuant to and consistent with " Article 8.2 of the
Agreement on Safeguards, and therefore China's "concessions under Article II of the GATT 1994
[were] properly suspended and not bre ached".281 However, China has not contested that the
additional duties measure imposes duties in excess of those bound in its Schedule.282 Finally, China
notes that it "does not object to the general proposition that a breach of Article II:1(b) would result
in breach of Article II:1(a)".283
7.4.2 Analysis by the Panel
7.145. The question before the Panel is whether, as the United States claims, the additional duties
measure is inconsistent with Articles II:1(a) and II:1(b) of the GATT 1994. China has responded to
the United States' claim by arguing that Article II of the GATT 1994 is "suspended" in respect of the
additional duties measure, and therefore not breached. China does not contest that the additional
duties measure does in fact impose duties on products originating in the United States in excess of
those bound in its Schedule, contrary to Article II:1(b) of the GATT 1994. Nor has China contested
that a violation of Article II:1(b) necessarily results in a consequential violation of Article II:1(a).
7.146. The Panel has already concluded that Article XIX:3(a) of the GATT 1994 and Article 8.2 of
the Agreement on Safeguards do not apply to the additional duties measure. The Panel further found
that, consequently, the application of Articles I and II of the GATT 1994 is not suspended in relation
to this measure.284 As such, the Panel has already addressed and rejected China's argument that
the additional duties measure is not inconsistent with Ar ticle II of the GATT 1994 because the
application of that provision is suspended.
7.147. In the absence of any further argumentation on China's part concerning the consistency of
the additional duties measure with Article II of the GATT 1994, the Panel considers that the
United States' claim under that provision is uncontested. Nevertheless, in accordance with its duty
to make an objective assessment of the matter before it as laid down in Article 11 of the DSU, the
Panel cannot simply accept the United States' arguments without further analysis. Rather, as noted

measure. However, in response to a question from the Panel, the United States clarified that the additional
duties measure only results in excess duties for 123 of the 128 tariff lines. (United States' response to Panel
question No. 12, paras. 22-23; and second written submission, para. 20).
277 United States' first written submission, para. 61.
278 United States' first written submission, para. 62.
279 United States' first written submission, para. 65 (referring to Appellate Body Report, Argentina –
Textiles and Apparel, paras. 45 and 47).
280 United States' first written submission, para. 66.
281 China's response to Panel question No. 22, para. 46.
282 The Panel notes that China made arguments on the inclusion by the United States of certain "other
additional duties" in its calculation of the total duties applied on certain tariff lines covered by the additional
duties measure. China's first written submission, paras. 155-157. In response to a question from the Panel, the
United States confirmed that it was not seeking findings on these "other additional duties", and clarified that its
claim under Articles II:1(a) and II:1(b) only relates to 123 of the 128 tariff lines. United States' response to
283 China's response to Panel question No. 22, para. 46.
284 See para. 7.120 above.

above285, the Panel must satisfy itself as to whether the United States has established a prima facie
case that the additional duties measure is inconsistent with Article II of the GATT 1994.286 To that
end, the Panel commences its analysis with the text of the relevant provisions.
7.4.2.1 The applicable legal standard
7.148. Articles II:1(a) and II:1(b) of the GATT 1994 provide as follows:
(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 territ ories 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 s et 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 excess 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.
7.149. 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".
7.150. Article II:1(a) of the GATT 1994 thus prohibits a Member from subjecting imports to
treatment less favourable than that provided for in its schedule. 287 The first sentence of
Article II:1(b) of the GATT 1994 further prohibits the imposition of ordinary customs duties in excess
of the rates set forth in a Member's schedule.288 In assessing whether a measure is inconsistent with
this sentence, a panel must ascertain (a) the treatment accorded to the products at issue under the
schedule of the Member; (b) the treatment accorded to the products at issue under the measure at
issue; and (c) whether the measure at issue results in the imposition of duties and conditions on the
products at issue in excess of those provided for in the schedule. 289 The second sentence of
Article II:1(b) also 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).290 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.291
7.151. Accordingly, a measure that is inconsistent with Article II:1(b) of the GATT 1994 will
necessarily be inconsistent with Article II:1(a) as well. This is because the imposition by a Member

285 See para. 7.129 above.
286 See e.g. Panel Reports, US – Poultry (China), paras. 7.445; Saudi Arabia – IPRs, para. 7.40; and
China – TRQs, para. 7.21.
287 See Appellate Body Reports, Argentina – Textiles and Apparel, para. 45; Colombia – Textiles,
para. 5.34.
288 See Appellate Body Reports, India – Additional Import Duties, para. 150; Colombia – Textiles,
para. 5.35.
289 Panel Reports, EC – Chicken Cuts, para. 7.65.
290 See Appellate Body Report, India – Additional Import Duties, para. 151; Panel Report,
291 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.

of duties in excess of the bound rates in its schedule constitutes "less favourable treatment" within
the meaning of Article II:1(a).292 The Panel will therefore begin i ts analysis by considering the
United States' claim under Article II:1(b) of the GATT 1994.
7.4.2.2 Whether China's additional duties measure is inconsistent with Article II:1(b) of
the GATT 1994
7.152. Article II:1(b) of the GATT 1994 prohibits the imposition of both "ordinary customs duties"
in excess of those provided in a Member's schedule and "other duties or charges" not recorded in a
Member's schedule. The first question facing the Panel is thus whether the duties imposed by China's
additional duties measure fall within the scope of either of these categories.
7.153. The United States considers that the additional duties imposed by the measure at issue are
"ordinary customs duties".293 Although the term "ordinary customs duties" is not defined in Article II
of the GATT 1994, past WTO adjudicators have stated that a duty is likely to constitute an "ordinary
customs duty" where it arises or accrues "because of the importation of the product at the very
moment it enters the territory of another Member" 294, such that it ca n be characterized as a duty
"on" importation.295
7.154. The Panel has already noted 296 that the Implementation Notice describes the additional
duties as "additional tariff rate[s]" that apply "additionally" to "current applied base tariff rates" 297,
and states that the additional tariff rates apply to certain specified "imported" products.298 The Panel
has also noted that the Implementation Notice was formally issued by the State Council Customs
Tariff Commission.299
7.155. The Panel considers that these features indicate th at the duties imposed by the additional
duties measure are "ordinary customs duties" for the purposes of Article II:1(b) of the GATT 1994.300
Insofar as the additional duties are "additional to" the "current applied base tariff rates" on "imported
products"301, the Panel understands that the duties arise or accrue because, and at the moment of,
importation of the products identified in the Implementation Notice. In this sense, they are duties
"on" the importation of those products.
7.156. Having determined that the duties imposed by the additional duties measure constitute
"ordinary customs duties", the Panel now turns to assess whether those duties are "in excess" of
the rates provided in China's Schedule. The United States has submitted evidence comparing, for
the 128 tariff lines covered by the additional duties measure, the bound rates in China's Schedule
and the tariff treatment accorded to the relevant products, resulting from the combination of China's
MFN tariff rates and the additional duties.302 When invited by the Panel to comment on this evidence,
China did not contest the accuracy of the information provided by the United States.303 Having
carefully examined the uncontested evidence submitted by the United States, the Panel finds that it

292 Appellate Body Report, Argentina – Textiles and Apparel, para. 47.
293 United States' first written submission, para. 60.
294 Panel Reports, China – Auto Parts, para. 7.184.
295 Appellate Body Reports, China – Auto Parts, para. 158.
296 See para. 7.134 above.
297 Implementation Notice, (Exhibit USA-1), paras. 1, 2, and 4.
298 Implementation Notice, (Exhibit USA-1).
299 Ibid.
300 The precise relationship between the terms "customs duties" in Article I:1 of the GATT 1994 and
"ordinary customs duties" in Article II:1(b) of the GATT 1994 has not been discussed by the parties, and the
Panel does not consider it necessary to address this question to resolve the dispute before it.
301 Implementation Notice, (Exhibit USA-1), paras. 1, 2, and 4.
302 United States' Table Presenting Tariff Lines and Bound Rates Affected By the Chinese Measure
(2018), (Exhibit USA-14); United States' Table Presenting Tariff Lines and Bound Rates Affected By the
Chinese Measure (2019), (Exhibit USA-15); United States' Table Presenting Tariff Lines and Bound Rates
Affected By the Chinese Measure (2018) Without Other Additional Duties, (Exhibit USA-17); and United States'
Table Presenting Tariff Lines and Bound Rates Affected By the Chinese Measure (2019) Without Other
Additional Duties, (Exhibit USA-18). The Panel notes that Exhibits USA-14 and USA-15 also identify other
duties applicable to the tariff lines at issue. However, as the United States has confirmed that it is not seeking
findings on these other duties, the Panel excludes them from its analysis. See United States' response to Panel
question No. 12, para. 21.
303 China's response to Panel question No. 23, para. 47.

establishes that China applies ordinary customs duties in excess of those set forth in its Schedule in
respect of 123 of the 128 tariff lines covered by the additional duties measure.304
7.157. Accordingly, the Panel finds that the United States has demonstrated that the additional
duties measure is inconsistent with Article II:1(b) of the GATT 1994 because it results in the
imposition of ordinary customs duties on 123 tariff lines in excess of the bound rates set forth in
China's Schedule.
7.4.2.3 Whether the additional duties measure is inc onsistent with Article II:1(a) of the
GATT 1994
7.158. As noted above, where a measure violates Article II:1(b) of the GATT 1994, it is necessarily
inconsistent with Article II:1(a) as well. This is so because, where a Member imposes duties or
charges on imports in excess of those set forth in its schedule, it ipso facto accords to those imports
treatment less favourable than that provided for in its schedule.305
7.159. Having found that the United States has demonstrated that the additional duties measure is
inconsistent with Article II:1(b) of the GATT 1994 because it imposes ordinary customs duties on
123 tariff lines in excess of the bound rates set forth China's Schedule, the Panel also finds that the
United States has demonstrated that the additional duti es measure is inconsistent with
Article II:1(a) of the GATT 1994 because it accords to those imports treatment less favourable than
that provided for in China's Schedule.
7.4.3 Conclusion
7.160. For the reasons outlined above, the Panel finds that the additional duties measure is
inconsistent with Articles II:1(a) and II:1(b) of the GATT 1994.
8 CONCLUSIONS AND RECOMMENDATION
8.1. For the reasons set forth in this Report, the Panel concludes:
a. Article 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994 do not
apply to China's additional duties measure. Accordingly, the application of Articles I and
II of the GATT 1994 is not suspended in relation to that measure.
b. Regarding the United States' claim under Article I:1 of the GATT 1994:
i. China's additional duties measure is inconsistent with Article I:1 of the GATT 1994
because, with respect to customs duties imposed on or in connection with importation,
it fails to accord an advantage granted to products originating outside the
United States immedia tely and unconditionally to products originating in the
United States.
c. Regarding the United States' claims under Articles II:1(a) and II:1(b) of the GATT 1994:
i. China's additional duties measure is inconsistent with Article II:1(b) of the GATT 1994
because it results in the imposition of ordinary customs duties on 123 tariff lines in
excess of the bound rates set forth in China's Schedule.
ii. China's additional duties measure is inconsistent with Article II:1(a) of the GATT 1994
because it imposes ordinary customs duties on United States-origin imports in excess
of those set forth in China's Schedule, thus according to those imports treatment less
favourable than that provided for in China's Schedule.
8.2. Under Article 3.8 of the DSU, in cases where there is an infr ingement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of

304 The five tariff lines that China does not impose ordinary customs duties in excess of those set forth in
its Schedule are 08028000, 08029090, 08044000, 08104000, and 08109030.
305 Appellate Body Report, Argentina – Textiles and Apparel, para. 47.

nullification or impairment. The Panel concludes that, to the extent that China's additional duties
measure is inconsistent with certain provisions of the GATT 1994, it has nullified or impaired benefits
accruing to the United States under that Agreement.
8.3. Pursuant to Article 19.1 of the DSU, the Panel recommends that China bring its WTO -
inconsistent measure into conformity with its obligations under the GATT 1994.