UNITED STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 9 December 2022
Document codes: WT/DS556/R
Complainant: Switzerland
Respondent: U.S.
Third parties: Bahrain, Brazil, Canada, China, Colombia, Egypt, EU, Guatemala, Hong Kong, Iceland, India, Indonesia, Japan, Kazakhstan, Malaysia, Mexico, New Zealand, Norway, Qatar, Russia, Saudi Arabia, Singapore, South Africa, Taiwan, Thailand, Turkey, Ukraine, UAE, Venezuela
Dispute stage: Panel
Agreements cited: Art. I:1, II:1(a), II:1(b), X:3(a), XI:1, XIX:1  GATT 1994Art. 2.1, 2.2, 3.1, 4.1, 4.2, 5.1, 7, 11.1(a)  SafeguardsArt. XIX  GATT 1994Art. 12.1, 12.2, 12.3  SafeguardsArt. XIX:2  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

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

LIST OF APPENDICES
Contents Page
Appendix A Materials submitted by the parties on Uruguay Round negotiations of the
Agreement on Safeguards
4
Appendix B Materials submitted by the parties on the interpretation of Article XXI(b) of the
GATT 1994
11
LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Working Procedures of the Panel for Open Meeting 10
Annex A-3 Working Procedures of the Panel Revised on 19 July 2019 and

11
Annex A-4 Additional Working Procedures of the Panel Concerning Meetings with
Remote Participation 17
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of Switzerland 20
Annex B-2 Integrated executive summary of the arguments of the United States of
America
38
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of China 45
Annex C-2 Integrated executive summary of the arguments of the European Union 48
Annex C-3 Integrated executive summary of the arguments of Hong Kong, China 53
Annex C-4 Integrated executive summary of the arguments of India 56
Annex C-5 Integrated executive summary of the arguments of Japan 59
Annex C-6 Integrated executive summary of the arguments of New Zealand 62
Annex C-7 Integrated executive summary of the arguments of Norway 65
Annex C-8 Integrated executive summary of the arguments of the Russian Federation 68
Annex C-9 Integrated executive summary of the arguments of Singapore 74
Annex C-10 Integrated executive summary of the arguments of Türkiye 79
Annex C-11 Integrated executive summary of the arguments of Ukraine 84

CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Import
Measures
Panel Reports, Argentina – Measures Affecting the Importation of Goods,
WT/DS438/R and Add.1 / WT/DS444/R and Add.1 / WT/DS445/R and Add.1,
adopted 26 January 2015, as modified (WT/DS438/R) and upheld (WT/DS444/R
/ WT/DS445/R) by Appellate Body Reports WT/DS438/AB/R / WT/DS444/AB/R
/ WT/DS445/AB/R, DSR 2015:II, p. 783
Argentina – Import
Measures
Appellate Body Reports, Argentina – Measures Affecting the Importation of
Goods, WT/DS438/AB/R / WT/DS444/AB/R / WT/DS445/AB/R, adopted
26 January 2015, DSR 2015:II, p. 579
Argentina – Textiles and
Apparel
Appellate Body Report, Argentina – Measures Affecting Imports of Footwear,
Textiles, Apparel and Other Items, WT/DS56/AB/R and Corr.1, adopted
22 April 1998, DSR 1998:III, p. 1003
Australia – Salmon
(Article 21.5 – Canada)
Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse
to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted 20 March 2000,
DSR 2000:IV, p. 2031
Australia – Tobacco Plain
Packaging
Panel Reports, Australia – Certain Measures concerning Trademarks,
Geographical Indications and other Plain Packaging Requirements applicable to
Tobacco Products and Packaging, WT/DS435/R, Add.1 and Suppl.1 (Honduras)
/ WT/DS441/R, Add.1 and Suppl.1 (Dominican Republic) / WT/DS458/R, Add.1
and Suppl.1 (Cuba) / WT/DS467/R, Add.1 and Suppl.1 (Indonesia),
WT/DS458/R and WT/DS467/R adopted 27 August 2018, DSR 2018:VIII, p.
3925, and WT/DS435/R and WT/DS441/R adopted 29 June 2020, as upheld by
Appellate Body Reports WT/DS435/AB/R / WT/DS441/AB/R, DSR 2018:VIII, p.
3925
Australia – Tobacco Plain
Packaging
Appellate Body Reports, Australia – Certain Measures concerning Trademarks,
Geographical Indications and other Plain Packaging Requirements applicable to
Tobacco Products and Packaging, WT/DS435/AB/R and Add.1 (Honduras) /
WT/DS441/AB/R and Add.1 (Dominican Republic), adopted 29 June 2020
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut,
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
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 Panel Report, Canada – Certain Measures Affecting the Automotive Industry,
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate
Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, p. 3043
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive
Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, DSR
2000:VI, p. 2985
Canada – Periodicals Appellate Body Report, Canada – Certain Measures Concerning Periodicals,
WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, p. 449
Canada – Renewable Energy
/ Canada – Feed-in Tariff
Program
Appellate Body Reports, Canada – Certain Measures Affecting the Renewable
Energy Generation Sector / Canada – Measures Relating to the Feed-in Tariff
Program, WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013, DSR
2013:I, p. 7
Canada – Wheat Exports
and Grain Imports
Appellate Body Report, Canada – Measures Relating to Exports of Wheat and
Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September 2004,
DSR 2004:VI, p. 2739
Chile – Price Band System Panel Report, Chile – Price Band System and Safeguard Measures Relating to
Certain Agricultural Products, WT/DS207/R, adopted 23 October 2002, as
modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, p. 3127
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted
23 October 2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)
Chile – Price Band System
(Article 21.5 – Argentina)
Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU
by Argentina, WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, p. 513
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile
Parts, WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted
12 January 2009, DSR 2009:I, p. 3
China – Rare Earths Panel Reports, China – Measures Related to the Exportation of Rare Earths,
Tungsten, and Molybdenum, WT/DS431/R and Add.1 / WT/DS432/R and Add.1
/ WT/DS433/R and Add.1, adopted 29 August 2014, upheld by Appellate Body
Reports WT/DS431/AB/R / WT/DS432/AB/R / WT/DS433/AB/R, DSR 2014:IV,
p. 1127
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw
Materials, WT/DS394/R, Add.1 and Corr.1 / WT/DS395/R, Add.1 and Corr.1 /

Short Title Full Case Title and Citation
WT/DS398/R, Add.1 and Corr.1, adopted 22 February 2012, as modified by
Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R,
DSR 2012:VII, p. 3501
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
Colombia – Textiles
(Article 21.5 – Colombia) /
Colombia – Textiles
(Article 21.5 – Panama)
Panel Report, Colombia – Measures Relating to the Importation of Textiles,
Apparel and Footwear – Recourse to Article 21.5 of the DSU by Colombia /
Colombia – Measures Relating to the Importation of Textiles, Apparel and
Footwear – Recourse to Article 21.5 of the DSU by Panama, WT/DS461/RW and
Add.1, circulated to WTO Members 5 October 2018
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 and certain member
States – Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States –
Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted
1 June 2011, DSR 2011:I, p. 7
EC – Bananas III Panel Reports, European Communities – Regime for the Importation, Sale and
Distribution of Bananas, WT/DS27/R/ECU (Ecuador) / WT/DS27/R/GTM,
WT/DS27/R/HND (Guatemala and Honduras) / WT/DS27/R/MEX (Mexico) /
WT/DS27/R/USA (US), adopted 25 September 1997, as modified by Appellate
Body Report WT/DS27/AB/R, DSR 1997:II, p. 695 to DSR 1997:III, p. 1085
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation,
Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997,
DSR 1997:II, p. 591
EC – Bananas III
(Article 21.5 – Ecuador II)
Panel Report, European Communities – Regime for the Importation, Sale and
Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by
Ecuador, WT/DS27/RW2/ECU, adopted 11 December 2008, as modified by
Appellate Body Report WT/DS27/AB/RW2/ECU, DSR 2008:XVIII, p. 7329
EC – Bananas III
(Article 21.5 – Ecuador II) /
EC – Bananas III
(Article 21.5 – US)
Appellate Body Reports, European Communities – Regime for the Importation,
Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU
by Ecuador, WT/DS27/AB/RW2/ECU, adopted 11 December 2008, and Corr.1 /
European Communities – Regime for the Importation, Sale and Distribution of
Bananas – Recourse to Article 21.5 of the DSU by the United States,
WT/DS27/AB/RW/USA and Corr.1, adopted 22 December 2008, DSR
2008:XVIII, p. 7165
EC – Bed Linen (Article 21.5
– India)
Appellate Body Report, European Communities – Anti-Dumping Duties on
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the
DSU by India, WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, p. 965
EC – Chicken Cuts Panel Reports, European Communities – Customs Classification of Frozen
Boneless Chicken Cuts, WT/DS269/R (Brazil) / WT/DS286/R (Thailand),
adopted 27 September 2005, as modified by Appellate Body Report
WT/DS269/AB/R, WT/DS286/AB/R, DSR 2005:XIX, p. 9295 / DSR 2005:XX,
p. 9721
EC – Chicken Cuts Appellate Body Report, European Communities – Customs Classification of
Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted
27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157
EC – Computer Equipment Appellate Body Report, European Communities – Customs Classification of
Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R,
adopted 22 June 1998, DSR 1998:V, p. 1851
EC – Export Subsidies on
Sugar (Australia)
Panel Report, European Communities – Export Subsidies on Sugar, Complaint
by Australia, WT/DS265/R, adopted 19 May 2005, as modified by
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R,
DSR 2005:XIII, p. 6499
EC – Fasteners (China) Panel Report, European Communities – Definitive Anti-Dumping Measures on
Certain Iron or Steel Fasteners from China, WT/DS397/R and Corr.1, adopted
28 July 2011, as modified by Appellate Body Report WT/DS397/AB/R, DSR
2011:VIII, p. 4289
EC – Fasteners (China)
(Article 21.5 – China)
Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China – Recourse to
Article 21.5 of the DSU by China, WT/DS397/AB/RW and Add.1, adopted
12 February 2016, DSR 2016:I, p. 7

Short Title Full Case Title and Citation
EC – Hormones Appellate Body Report, European Communities – Measures Concerning Meat
and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted
13 February 1998, DSR 1998:I, p. 135
EC – IT Products Panel Reports, European Communities and its member States – Tariff
Treatment of Certain Information Technology Products, WT/DS375/R /
WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III,
p. 933
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the
Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998,
DSR 1998:V, p. 2031
EC – Seal Products Panel Reports, European Communities – Measures Prohibiting the Importation
and Marketing of Seal Products, WT/DS400/R and Add.1 / WT/DS401/R and
Add.1, adopted 18 June 2014, as modified by Appellate Body Reports
WT/DS400/AB/R / WT/DS401/AB/R, DSR 2014:II, p. 365
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the
Importation and Marketing of Seal Products, WT/DS400/AB/R /
WT/DS401/AB/R, adopted 18 June 2014, DSR 2014:I, p. 7
EC – Selected Customs
Matters
Appellate Body Report, European Communities – Selected Customs Matters,
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EEC – Import Restrictions GATT Panel Report, EEC – Quantitative Restrictions Against Imports of Certain
Products from Hong Kong, L/5511, adopted 12 July 1983, BISD 30S/129
India – Additional Import
Duties
Appellate Body Report, India – Additional and Extra-Additional Duties on
Imports from the United States, WT/DS360/AB/R, adopted 17 November 2008,
DSR 2008:XX, p. 8223
India – Agricultural Products Panel Report, India – Measures Concerning the Importation of Certain
Agricultural Products, WT/DS430/R and Add.1, adopted 19 June 2015, as
modified by Appellate Body Report WT/DS430/AB/R, DSR 2015:V, p. 2663
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and
Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, DSR
1998:I, p. 9
India – Quantitative
Restrictions
Panel Report, India – Quantitative Restrictions on Imports of Agricultural,
Textile and Industrial Products, WT/DS90/R, adopted 22 September 1999,
upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, p. 1799
India – Solar Cells Panel Report, India – Certain Measures Relating to Solar Cells and Solar
Modules, WT/DS456/R and Add.1, adopted 14 October 2016, as modified by
Appellate Body Report WT/DS456/AB/R, DSR 2016:IV, p. 1941
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry,
WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, Corr.1 and Corr.2, adopted
23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201
Indonesia – Chicken Panel Report, Indonesia – Measures Concerning the Importation of Chicken
Meat and Chicken Products, WT/DS484/R and Add.1, adopted
22 November 2017, DSR 2017:VIII, p. 3769
Indonesia – Iron or Steel
Products
Panel Report, Indonesia – Safeguard on Certain Iron or Steel Products,
WT/DS490/R, WT/DS496/R, and Add.1, adopted 27 August 2018, as modified
by Appellate Body Report WT/DS490/AB/R, WT/DS496/AB/R, DSR 2018:VII,
p. 3707
Indonesia – Iron or Steel
Products
Appellate Body Report, Indonesia – Safeguard on Certain Iron or Steel
Products, WT/DS490/AB/R, WT/DS496/AB/R, and Add.1, adopted
27 August 2018, DSR 2018:VII, p. 3393
Japan – Alcoholic Beverages
II
Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and
Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, p. 1179
Peru – Agricultural Products Panel Report, Peru – Additional Duty on Imports of Certain Agricultural
Products, WT/DS457/R and Add.1, adopted 31 July 2015, as modified by
Appellate Body Report WT/DS457/AB/R, DSR 2015:VII, p. 3567
Peru – Agricultural Products Appellate Body Report, Peru – Additional Duty on Imports of Certain
Agricultural Products, WT/DS457/AB/R and Add.1, adopted 31 July 2015, DSR
2015:VI, p. 3403
Russia – Pigs (EU) Panel Report, Russian Federation – Measures on the Importation of Live Pigs,
Pork and Other Pig Products from the European Union, WT/DS475/R and Add.1,
adopted 21 March 2017, as modified by Appellate Body Report
WT/DS475/AB/R, DSR 2017:II, p. 361
Russia – Railway Equipment Panel Report, Russia – Measures Affecting the Importation of Railway
Equipment and Parts Thereof, WT/DS499/R and Add.1, adopted 5 March 2020,
as modified by Appellate Body Report WT/DS499/AB/R
Russia – Tariff Treatment Panel Report, Russia – Tariff Treatment of Certain Agricultural and
Manufacturing Products, WT/DS485/R, Add.1, Corr.1, and Corr.2, adopted
26 September 2016, DSR 2016:IV, p. 1547

Short Title Full Case Title and Citation
Russia – Traffic in Transit Panel Report, Russia – Measures Concerning Traffic in Transit, WT/DS512/R and
Add.1, adopted 26 April 2019, DSR 2019:VIII, p. 4301
Saudi Arabia – IPRs Panel Report, Saudi Arabia – Measures Concerning the Protection of Intellectual
Property Rights, WT/DS567/R and Add.1, circulated to Members on
16 June 2020, dispute terminated while appeal pending
Thailand – Cigarettes
(Philippines)
Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes
from the Philippines, WT/DS371/AB/R, adopted 15 July 2011, DSR 2011:IV,
p. 2203
Ukraine – Ammonium
Nitrate
Appellate Body Report, Ukraine – Anti-Dumping Measures on Ammonium
Nitrate, WT/DS493/AB/R and Add.1, adopted 30 September 2019, DSR 2019:X,
p. 5227
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916,
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X,
p. 4793
US – Carbon Steel Panel Report, United States – Countervailing Duties on Certain Corrosion-
Resistant Carbon Steel Flat Products from Germany, WT/DS213/R and Corr.1,
adopted 19 December 2002, as modified by Appellate Body Report
WT/DS213/AB/R, DSR 2002:IX, p. 3833
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/AB/R
and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling
(COOL) Requirements, WT/DS384/AB/R / WT/DS386/AB/R, adopted
23 July 2012, DSR 2012:V, p. 2449
US – COOL (Article 21.5 –
Canada and Mexico)
Appellate Body Reports, United States – Certain Country of Origin Labelling
(COOL) Requirements – Recourse to Article 21.5 of the DSU by Canada and
Mexico, WT/DS384/AB/RW / WT/DS386/AB/RW, adopted 29 May 2015, DSR
2015:IV, p. 1725
US – Customs Bond
Directive
Panel Report, United States – Customs Bond Directive for Merchandise Subject
to Anti-Dumping/Countervailing Duties, WT/DS345/R, adopted 1 August 2008,
as modified by Appellate Body Report WT/DS343/AB/R / WT/DS345/AB/R, DSR
2008:VIII, p. 2925
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and
Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3
US – Large Civil Aircraft (2nd
complaint) (Article 21.5 –
EU)
Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft
(Second Complaint) – Recourse to Article 21.5 of the DSU by the
European Union, WT/DS353/RW and Add.1, adopted 11 April 2019, as modified
by Appellate Body Report WT/DS353/AB/RW, DSR 2019:V, p. 2171
US – Line Pipe Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Circular Welded Carbon Quality Line Pipe from Korea,
WT/DS202/AB/R, adopted 8 March 2002, DSR 2002:IV, p. 1403
US – Offset Act (Byrd
Amendment)
Appellate Body Report, United States – Continued Dumping and Subsidy Offset
Act of 2000, WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003, DSR
2003:I, p. 375
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry
from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909
US – Ripe Olives from Spain Panel Report, United States – Anti-Dumping and Countervailing Duties on Ripe
Olives from Spain, WT/DS577/R and Add.1, adopted 20 December 2021
US – Section 301 Trade Act Panel Report, United States – Sections 301-310 of the Trade Act of 1974,
WT/DS152/R, adopted 27 January 2000, DSR 2000:II, p. 815
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp
and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR
1998:VII, p. 2755
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty Determination
with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R,
adopted 17 February 2004, DSR 2004:II, p. 571
US – Stainless Steel
(Mexico)
Appellate Body Report, United States – Final Anti-Dumping Measures on
Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008, DSR
2008:II, p. 513
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003, DSR 2003:VII,
p. 3117
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton,
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Washing Machines Panel Report, United States – Anti-Dumping and Countervailing Measures on
Large Residential Washers from Korea, WT/DS464/R and Add.1, adopted

Short Title Full Case Title and Citation
26 September 2016, as modified by Appellate Body Report WT/DS464/AB/R,
DSR 2016:V, p. 2505
US – Zeroing (EC)
(Article 21.5 – EC)
Appellate Body Report, United States – Laws, Regulations and Methodology for
Calculating Dumping Margins ("Zeroing") – Recourse to Article 21.5 of the DSU
by the European Communities, WT/DS294/AB/RW and Corr.1, adopted
11 June 2009, DSR 2009:VII, p. 2911
US – Zeroing (Japan)
(Article 21.5 – Japan)
Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan,
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441

EXHIBITS REFERRED TO IN THIS REPORT
Panel
Exhibit
Short title (if
applicable) Title
CHE-1
and
USA-1
Section 232 Trade Expansion Act, Public Law No. 87–794, 76 Stat. 877 (1962),
United States Code, Title II, Section 232
CHE-2
and
USA-7
Steel Report US Department of Commerce, Bureau of Industry and Security, Office of
Technology Evaluation, The Effect of Imports of Steel on the National Security:
An Investigation Conducted under Section 232 of the Trade Expansion Act of
1962, as Amended (11 January 2018)
CHE-5
and
USA-8
Aluminium
Report
US Department of Commerce, Bureau of Industry and Security, Office of
Technology Evaluation, The Effect of Imports of Aluminum on the National
Security, An Investigation Conducted under Section 232 of the Trade
Expansion Act of 1962, as Amended (17 January 2018)
CHE-8
and
USA-9
Presidential
Proclamation
9705
Proclamation 9705 of 8 March 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 51
(15 March 2018), p. 11625
CHE-9
and
USA-11
Presidential
Proclamation
9711
Proclamation 9711 of 22 March 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 60
(28 March 2018), p. 13361
CHE-10
and
USA-13
Presidential
Proclamation
9740
Proclamation 9740 of 30 April 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 88 (7 May 2018), p.
20683
CHE-11
and
USA-15
Presidential
Proclamation
9759
Proclamation 9759 of 31 May 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 108 (5 June 2018),
p. 25857
CHE-13
and
USA-10
Presidential
Proclamation
9704
Proclamation 9704 of 8 March 2018, Adjusting Imports of Aluminum Into the
United States, United States Federal Register, Vol. 83, No. 51
(15 March 2018), p. 11619
CHE-14
and
USA-12
Presidential
Proclamation
9710
Proclamation 9710 of 22 March 2018, Adjusting Imports of Aluminum Into the
United States, United States Federal Register, Vol. 83, No. 60
(28 March 2018), p. 13355
CHE-15
and
USA-14
Presidential
Proclamation
9739
Proclamation 9739 of 30 April 2018, Adjusting Imports of Aluminum Into the
United States, United States Federal Register, Vol. 83, No. 88 (7 May 2018), p.
20677
CHE-16
and
USA-16
Presidential
Proclamation
9758
Proclamation 9758 of 31 May 2018, Adjusting Imports of Aluminum Into the
United States, United States Federal Register, Vol. 83, No. 108 (5 June 2018),
p. 25849
CHE-20
and
USA-20
March Interim
Final Rule
Requirements for Submissions Requesting Exclusions From the Remedies
Instituted in Presidential Proclamations Adjusting Imports of Steel Into the
United States and Adjusting Imports of Aluminum Into the United States; and
the Filing of Objections to Submitted Exclusion Requests for Steel and
Aluminum, Interim Final Rule, United States Federal Register, Vol. 83, No. 53
(19 March 2018), p. 12106
CHE-21
and
USA-2
Section 232
regulations
United States Code of Federal Regulations, Title 15, Part 705
CHE-22
and
USA-21
September
Interim Final
Rule
Submissions of Exclusion Requests and Objections to Submitted Requests for
Steel and Aluminum, Interim Final Rule, United States Federal Register, Vol.
83, No. 176 (11 September 2018), p. 46026
CHE-23
and
USA-18
Presidential
Proclamation
9777
Proclamation 9777 of 29 August 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 171
(4 September 2018), p. 45025
CHE-24
and
USA-19
Presidential
Proclamation
9776
Proclamation 9776 of 29 August 2018, Adjusting Imports of Aluminum Into the
United States, United States Federal Register, Vol. 83, No. 171
(4 September 2018), p. 45019
CHE-35
(excerpt)
and
USA-84
(full
version)
 Statements dated 29 October 2018, 21 November 2018, and 4 December 2018
of the United States, WTO Dispute Settlement Body
CHE-72
and
USA-225
Presidential
Proclamation
9980
Proclamation 9980 of 24 January 2020, Adjusting Imports of Derivative
Aluminum Articles and Derivative Steel Articles Into the United States,
United States Federal Register, Vol. 85, No. 19 (29 January 2020), p. 5281
CHE-73
and
USA-233
Presidential
Proclamation
9894
Proclamation 9894 of 19 May 2019, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 84, No. 100 (23 May 2019),
p. 23987

Panel
Exhibit
Short title (if
applicable) Title
CHE-74
and
USA-232
Presidential
Proclamation
9893
Proclamation 9893 of 19 May 2019, Adjusting Imports of Aluminum Into the
United States, United States Federal Register, Vol. 84, No. 100 (23 May 2019),
p. 23983
CHE-75
and
USA-234
Presidential
Proclamation
10060
Proclamation 10060 of 6 August 2020, Adjusting Imports of Aluminum Into the
United States, United States Federal Register, Vol. 85, No. 158
(14 August 2020), p. 49921
CHE-76
and
USA-235
Presidential
Proclamation
10064
Proclamation 10064 of 28 August 2020, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 85, No. 171
(2 September 2020), p. 54877
CHE-77
and
USA-230
Presidential
Proclamation
9886
Proclamation 9886 of 16 May 2019, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 84, No. 98 (21 May 2019),
p. 23421
CHE-12 Presidential
Proclamation
9772
Proclamation 9772 of 10 August 2018, Adjusting Imports of Steel Into the
United States, United States Federal Register, Vol. 83, No. 158
(15 August 2018), p. 40429
CHE-29 United States' Schedule of Concessions
CHE-31 Harmonized Tariff Schedule of the United States (2019) Revision 2, Chapter 76
CHE-56 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford
University Press, 2007)
CHE-60 Larousse, definition of "estimer",
https://www.larousse.fr/dictionnaires/francais/estimer/31188?q=estimer31111
(accessed 11 February 2020)
CHE-61 Diccionario de la lengua española, definition of "estimar",
https://www.dle.rae.es/estimar?m=form (accessed 11 February 2020)
USA-22 The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.) (Clarendon
Press, 1993)
USA-23 Draft Articles on the Law of Treaties with commentaries, Yearbook of the
International Law Commission, 1966, Vol. II
USA-72 G20, Global Forum on Steel Excess Capacity Report (30 November 2017)
USA-80 Council for Trade in Goods, Minutes of the Meeting held on 10 November 2017,

USA-81 Council for Trade in Goods, Minutes of the Meeting held on 23 and
26 March 2018, G/C/M/131
USA-82 Committee on Safeguards, Communication from the United States, G/SG/168
USA-83 Statement dated 8 May 2018 of the Deputy US Trade Representative and US
Permanent Representative to the WTO, WTO General Council
USA-85 Committee on Market Access, Notification Pursuant to the Decision on
Notification Procedures for Quantitative Restrictions (G/L/59/Rev.1),

USA-86 The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.) (Clarendon
Press, 1993)
USA-93 S. Greenbaum, English Grammar (Oxford University Press, 1996)
USA-94 R. Flesch and A.H. Lass, The Classic Guide to Better Writing (HarperPerennial,
1996)
USA-95 Merriam-Webster's Guide to Punctuation and Style (Merriam-Webster,
Incorporated, 1995)
USA-96 S. Benedict (ed.), Harper's English Grammar (Harper & Row, 1966)
USA-176 Merriam-Webster's Guide to Punctuation and Style (Merriam-Webster,
Incorporated, 1995)
USA-222 The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.) (Clarendon
Press, 1993)
USA-226 W. Strunk Jr. and E.B. White, The Elements of Style, 4th edn (Allyn and Bacon,
1999)
USA-240 Remarks dated 18 April 2016 of C. Malmström, "Way ahead for the global steel
industry", OECD High-Level Symposium on Steel

1 INTRODUCTION
1.1. This dispute concerns additional duties and related measures imposed by the United States on
steel and aluminium products under Section 232 of the Trade Expansion Act of 1962, as amended.
Switzerland challenges the consistency of these measures with the United States' obligations under
the General Agreement on Tariffs and Trade 1994 (GATT 1994) and the Agreement on Safeguards.
1.1 Complaint by Switzerland
1.2. On 9 July 2018, Switzerland requested consultations with the United States pursuant to Articles
1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU),
Article XXII:1 of the GATT 1994, and Article 14 of the Agreement on Safeguards with respect to the
measures and claims set out below.1
1.3. Consultations were held on 30 August 2018 between Switzerland and the United States. These
consultations failed to resolve the dispute.2
1.2 Panel establishment and composition
1.4. On 8 November 2018, Switzerland requested the establishment of a panel pursuant to Articles
4.7 and 6 of the DSU, Article XXIII of the GATT 1994, and Article 14 of the Agreement on Safeguards
with standard terms of reference.3 At its meeting on 4 December 2018, the Dispute Settlement Body
(DSB) established a panel pursuant to the request of Switzerland in document WT/DS 556/15, in
accordance with Article 6 of the DSU.4
1.5. The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the covered ag reements cited by
the parties to the dispute, the matter referred to the DSB by Switzerland in document
WT/DS556/15 and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements.5
1.6. On 7 January 2019, Switzerland requested the Director-General to determine the composition
of the panel, pursuant to Article 8.7 of the DSU . On 25 January 2019, the Director -General
accordingly composed the Panel as follows:
Chairperson: Mr Elbio Rosselli
Members: Mr Esteban B. Conejos, Jr
 Mr Rodrigo Valenzuela
1.7. The Kingdom of Bahrain; Brazil; Canada; China; Colombia; Egypt; the European Union;
Guatemala6; Hong Kong, China; Iceland; India; Indonesia; Japan; Kazakhstan; Malaysia; Mexico;
New Zealand; Norway; Qatar; the Russian Federation; the Kingdom of Saudi Arabia; Singapore;
South Africa; Chinese Taipei; Thailand; Türkiye7; Ukraine; the United Arab Emirates; and the
Bolivarian Republic of Venezuela notified their interest in participating in the Panel proceedings as
third parties.

1 See Request for consultations by Switzerland, WT/DS556/1.
2 See Request for the establishment of a panel by Switzerland, WT/DS556/15 (Switzerland's panel
request).
3 See Switzerland's panel request.
4 See Minutes of the DSB meeting held on 4 December 2018, WT/DSB/M/422, para. 2.5.
5 See Note by the Secretariat, Constitution of the Panel established at the request of Switzerland,

6 On 14 March 2019, Guatemala notified the Panel of its interest to participate as a third party. (See
WT/DS556/16/Rev.1).
7 Member formerly known as Turkey.

1.3 Panel proceedings
1.3.1 General
1.8. The Panel held an organizational meeting with the parties on 18 March 2019.
1.9. After consultation with the parties, the Panel adopted its Working Procedures 8 and Timetable9
on 5 April 2019.
1.10. The Panel held a first substantive meeting with the parties on 12 November 2019.10 A session
with the third parties took place on 18 November 2019. The Panel held a second substantive meeting
with the parties on 12 and 26 January 2021. On 15 July 2021, the Panel issued the descriptive part
of its Report to the parties. The Panel issued its Interim Report to the parties on 29 June 2022. The
Panel issued its Final Report to the parties on 16 November 2022.
1.3.2 Request for the substantive meetings of the Panel to be open to the public
1.11. On 5 March 2019, the Panel received a communication from the United States inquiring
whether Switzerland was willing to open the substantive meetings in the dispute to public
observation and make its submissions to the Panel available to the public .11 In the Panel's
organizational meeting with the parties, Switzerland expressed its willingness to make the opening
statements available for public viewing.12
1.12. The Panel transmitted its Working Procedures to the parties on 5 April 2019, which provided
that the Panel "may open its meetings with the parties to the public, subject to appropriate
procedures to be adopted by the Panel after consulting the parties". 13 On 28 May 2019, the Panel
circulated draft additional working procedures on open meetings to the parties for comments. Based
on the comments received from the parties on 14 June 2019 and 21 June 2019, the Panel adopted

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

the Additional Working Procedures on open meetings on 19 July 2019, applicable to the first
substantive meeting of the Panel with the parties.14
1.3.3 Request for enhanced third-party rights
1.13. On 7 June 2019, the Panel received a communication from Türkiye requesting enhanced
third-party right s (a) to receive copies of all the parties' written submissions, oral statements,
rebuttals and answers to questions from the Panel and each other, through all stages of the
proceedings; (b) to be present for the entirety of all substantive meetings of the Panel with the
parties; and (c) to review the draft summary of their own arguments in the descriptive part of the
Panel Report.15 On 17 June 2019 and 26 June 2019, the Panel invited the parties to comment on
this request as well as other similar requests received from China16, the European Union17, Norway18,
the Russian Federation19, and Hong Kong, China .20 In response, the United States opposed the
requests for enhanced rights to third parties21, whereas Switzerland supported the requests.22
1.14. Having consulted the parties on this matter and considering their due process interests, the
Panel informed the parties and third parties on 19 July 2019 that it had decided to grant certain
enhanced third-party rights to all third parties. The Panel implement ed this decision in paragraph
30(e) of the Revised Working Procedures of 19 July 2019, granting third parties access to the parties'
submissions up to and including their responses to the questions posed by the Panel follo wing the
first substantive meeting, as well as final versions of the oral statements made by the parties during
the first substantive meeting . The Panel stated that it would address the requests for enhanced
third-party rights in respect of further stages of the proceedings in due course.
1.15. After consultation with the parties, t he Panel also granted enhanced third -party rights in
respect of further stages of the proceedings. On 20 February 2020, the Panel amended its Working
Procedures to provide third parties access to the parties' second written submissions, final versions
of oral statements made by the parties during the second substantive meeting, their responses to
the Panel's questions after the second substantive meeting, and comments on those responses.
1.16. In the interest of advancing the proceedings during the disruptions associated with the
COVID-19 pandemic23 and pursuant to paragraph 9 of the Panel's Working Procedures, the Panel
sent additional questions to the parties on 26 August 2020. Based on consultations with the parties,
the Panel decided on 8 September 2020 and 21 September 2020 that the parties' responses to the
Panel's additional questions and comments on those responses should be made available to third
parties.
1.17. Due to the impact of the COVID-19 pandemic on the second substantive meeting24, the Panel
decided, on 10 November 2020, to modify its decision of 20 February 2020 so that third parties
would not receive further access to any statements, submissions, or exchanges fro m the partie s,
including statements made by the parties during the second substantive meeting, their responses
to the Panel's questions after the second substantive meeting, or comments on those responses.

14 See the Panel's Additional Working Procedures on Open Meeting, adopted on 19 July 2019, in
Annex A-2.
15 Türkiye's communication dated 7 June 2019, para. 11.
16 China's communication dated 7 June 2019, para. 2.
17 European Union's communication dated 7 June 2019, para. 11.
18 Norway's communication dated 11 June 2019, para. 3.
19 Russian Federation's communication dated 14 June 2019, p. 3.
20 Hong Kong, China's communication dated 25 June 2019, p. 1.
21 United States' communications dated 24 June 2019, para. 2; United States' communication dated
1 July 2019, para. 2.
22 Switzerland's communication dated 24 June 2019, p. 1; Switzerland's communication dated
1 July 2019, p. 4.
23 See section 1.3.5.2 below.
24 See section 1.3.5.4 below.

1.3.4 Relationship with the other disputes where the same three persons act as panelists
1.18. At the organizational meeting and at various points in the proceedings, the parties provided
views regarding the relationship between this dispute and the other cases where the same three
persons act as panelists.25
1.19. Switzerland considered that these complaints relate to the same matter and Article 9.3 of the
DSU was therefore applicable, noting that this was recognized in the Director-General's decision to
appoint the same panelists to serve on all these panels. Accordingly, Switzerland argued that these
proceedings required harmonized timetables and consolidated hearings , which could significantly
reduce the risk of unnecessary repetition and achieve important efficiencies .26 For Switzerland, the
notion of a "harmonized" timetable in Article 9.3 of the DSU implies "harmonized", or consolidated,
substantive meetings.27 Switzerland argued that, in previous practice, single panels were established
under Article 9.1 of the DSU despite the absence of a complete overlap of the claims raised and that
"[t]his logic applies a fortiori under Article 9.3 of the DSU."28
1.20. The United States considered that a single panel had not been established in these disputes
pursuant to Article 9.1 of the DSU, but rather, nine29 separate panels were established by the DSB
to consider distinct matters. For the United States, the matters are distinct because the claims and
measures identified by each complainant are different from the other complainants. For this reason,
the United States submitted that Article 9.3 of the DSU is not applicable and, even if it were, it would
only be relevant to the composition of the various panels and the timetables. 30 In the context of
Article 9.3 of the DSU, the United States argued that t o "harmonize" the timetables in these
proceedings would mean to make them consistent or compatible and that harmonization does not
suggest, much less require, that the Panel collapse the proceedings into a single, identical process.
For the United States, the disparate sets of claims and measures identified by the complainants are
important to considerations of both efficiency and procedural fairness.31
1.21. The Panel notes that , at its meeting on 4 December 2018, the DSB established a panel
pursuant to the request of Switzerland in document WT/DS556/15, in accordance with Article 6 of
the DSU.32 While the same three persons that act as panelists in this dispute were also appointed
as panelists in other related cases33, these proceedings are not substantively identical in all respects,
for instance, in terms of the precise measures and claims at issue . The Panel was also mindful of
the logistical complexities of coordinating multiple formally distinct disputes and, before adopting its
Timetable and Working Procedures, consulted the parties on multiple possible alternatives for the
conduct and configuration of the proceedings.34

25 The other disputes where the same three persons are acting as panelists include DS544 (China),
DS547 (India), DS552 (Norway), DS554 (the Russian Federation), and DS564 (Türkiye). Mutually agreed
solutions were notified in DS550 (Canada) and DS551 (Mexico), where the same three persons were appointed
as panelists. See United States – Certain Measures on Steel and Aluminium Products (Canada), Notification of
a Mutually Agreed Solution, WT/DS550/13, 27 May 2019 and United States – Certain Measures on Steel and
Aluminium Products (Mexico), Notification of a Mutually Agreed Solution, WT/DS551/13, 3 June 2019. On
17 January 2022, the United States and the European Union jointly notified the DSB that they were terminating
the dispute in DS548 (European Union), where the same three persons were appointed as panelists.
(WT/DS548/20). On 20 January 2022, that panel notified the DSB that it was in receipt of a communication
from the European Union notifying the withdrawal of its complaint, and accordingly, had ceased all work in
those proceedings. (WT/DS548/21).
26 Switzerland's communication dated 22 February 2019.
27 Switzerland's communication dated 1 March 2019.
28 Switzerland's communication dated 1 March 2019.
29 The Panel recalls that the disputes in DS548 (European Union), DS550 (Canada) and DS551 (Mexico)
were active at the time of the Panel's organizational meeting and related consultations with the parties.
30 United States' communication dated 22 February 2019.
31 United States' communication dated 1 March 2019.
32 Note by the Secretariat, Constitution of the Panel established at the request of Switzerland,

33 DS544 (China), DS547 (India), DS552 (Norway), DS554 (the Russian Federation), and DS564
(Türkiye).
34 Panel communication to the parties dated 7 March 2019. During the Panel's organizational meeting
and related consultations with the parties, the Panel specifically sought the parties' views on the optimal
scheduling and configuration of the substantive meetings in the disputes where the same three persons were
appointed as panelists, particularly addressing three possible configurations for the substantive meetings: (a)

1.22. The Panel, nonetheless, made arrangements at each stage of the proceedings to maintain
harmonized timetables to the greatest extent possible in both the deadlines for written submissions
and the dates for meetings across all disputes in which the same three persons act as panelists. In
doing so, the Panel endeavoured to balance the efficient conduct of proceedings with the due process
rights of the parties , taking into account the agreement of the parties, or lack thereof, on the
different proposals on how to organize the proceedings. As elaborated in the next section , the
harmonization of timetables was, in some instances, affected by the divergent views of the
complainants across the different disputes.35
1.3.5 Impact of the COVID-19 pandemic on the Panel proceedings
1.3.5.1 Filing of written submissions
1.23. On 17 March 2020, in response to the COVID -19 outbreak, the Panel suspended the
requirement to deliver paper copies of a document or submission to the other parties or the
DS Registry until further notice. The Panel decided that receipt of the electronic version would be
deemed to be full service for the purposes of the Working Procedures. After briefly reverting to
service of hard copi es of documents on 22 July 2020, the Panel informed the parties that as of
28 October 2020, e-filing would be deemed full service again until further notice.36
1.3.5.2 Scheduling of the second substantive meeting of the Panel with the parties
1.24. According to the revised Timetable adopted on 20 February 2020 after consultation with the
parties37, the Panel's second meeting with the parties was scheduled for 16-17 July 2020.
1.25. On 27 May 2020, the Panel invited the parties to provide information on the travel restrictions
that might impact the overall likelihood of holding the second meeting in person in July 2020.
In addition, the Panel consulted the parties on possible alternative arrangements to meetings in
person, including (a) holding the second su bstantive meeting through virtual participation in July
2020; (b) postponement of the meeting to a later date with a possibility for an exchange of written
questions and responses in the interim; (c) adoption of written procedures as a substitute for the
second substantive meeting; or (d) any other possible arrangement, should it not be possible to
hold the meeting in person in July 2020. The Panel further requested comments on the possibility of
holding meetings open to the public given inter alia the restrictions on social gatherings in force in
Switzerland.
1.26. In response to the Panel's communication, Switzerland noted its availability for in -person
meetings in July 2020. Switzerland suggested that should it be impossible for all parties involved to
travel to Geneva in July, participants unable to travel to Geneva could participate in the meeting via
videoconferencing. With respect to meetings open to the public , Switzerland noted that prevailing
recommendations and restrictions would permit open meetings as scheduled but argued that online
live streaming would not be an adequate substitute for confidentiality reasons. Finally, Switzerland
requested the Panel to foresee an alternative arrangement to in -person meetings at this stage to
prevent excessive delays. In this regard, Switzerland stated that it would not object to exchanges
in writing as an alternative solution if a postponed physical meeting could not take place in the fall
and a virtual meeting would prove impractical, even though Switzerland considered that the purpose

combined substantive meetings with the parties in this dispute and the other eight disputes; (b) a "two-stage"
approach proposed by the United States with a first stage devoted solely to the United States' arguments
under Article XXI of the GATT 1994; and (c) separate meetings for each of the disputes in which the same
panelists had been appointed.
35 See section 1.3.5.4 below.
36 Panel communication to the parties dated 27 October 2020.
37 Following its first substantive meeting with the parties, the Panel consulted the parties on various
options for scheduling the second substantive meeting between 22 June-31 July 2020 or 14 September-
16 October 2020, as well as an expedited timetable under which the second substantive meeting with the
parties would be held in May 2020. While Switzerland favoured the earlier scheduling of the meeting, the
United States requested that the meeting be scheduled between 14 September 2020 and 16 October 2020,
citing conflicting summer holiday schedules, US federal holidays, and the need for sufficient time to adequately
prepare for the second substantive meeting. Based on these consultations, the Panel scheduled its second
meeting with the parties on 16 and 17 July 2020.

of a substantive meeting, which fosters active exchanges with the Panel and between the parties,
would not be entirely achieved through written exchanges.38
1.27. The United States indicated its inability to travel to Geneva for the second substantive meeting
in July 2020. The United States opposed holding the meeting in a virtual format, citing consequent
limitations on interactions between t he parties and the Panel, within the parties' respective
delegations, among the three panelists, and between the panelists and the Secretariat. 39 The
United States also opposed web-casting the meeting owing to concerns of security and protection
against manipulation of such webcasts. 40 The United States further disagreed with Switzerland's
suggestion that a written exchange could serve as an alternative to a second substantive meeting
with contemporaneous oral exchange.41 Finally, with respect to hybrid meetings with both in-person
and virtual participation, the United States argued that the Panel should decline to hold a meeting
with the parties in a manner that would effectively curtail the participation of one party and the
Panel, while allowing the full participation of another party. 42 On this basis, the United States
requested that the Panel reschedule the second substantive meeting for a later date. 43 The
United States noted that the Panel need not foresee an alternative arrangement to in -person
meetings at this stage, given the rapid evolution of the pandemic.44
1.28. After reviewing the parties' comments, the Panel in its communication dated 12 June 2020
decided to postpone the meeting, indicating that it tentatively intended to schedule the meeting
between 10 September and 20 October 2020.
1.29. Through multiple communicati ons sent to the parties on 22 July 2020, 31 July 2020,
26 August 2020, 21 September 2020, 13 October 2020, and 23 October 2020, the Panel regularly
consulted the parties on the feasibility of in -person meetings in 2020 and possible alternative
arrangements. The United States identified numerous potential obstacles to holding in -person
meetings in 2020, including evolving travel and quarantine restrictions due to the pandemic , and
maintained its preference for in-person meetings.45 Switzerland suggested that in-person meetings
could be replaced with (a) hybrid meetings, where participants unable to travel to Geneva would
participate via videoconferencing; (b) fully virtual meetings, in which all parties would participate
via videoconferencing; or (c) written exchanges.46
1.30. After it became apparent that no in -person meeting would be possible in the foreseeable
future due to the COVID -19 pandemic, the Panel issued a decision on 10 November 2020 on the
way forward in the proceed ings. The Panel began by noting the various restrictions imposed on
gatherings and international travel in relation to the COVID-19 pandemic, including those instituted
by Switzerland in November 2020 , and that under these circumstances , holding the second
substantive meeting in the manner originally envisaged in the Timetable was not feasible. The Panel
indicated its consistent efforts over the course of the dispute to maintain a balance between the
efficient conduct of proceedings, the parties' due process rights, and the particular preferences
expressed by each party, including the complainant 's request to keep the timetables harmonized
across the disputes in which the same three persons act as panelists. Based on the parties' comments
and in the interest of continuing to advance the Panel's work, the Panel decided to proceed by holding
the second substantive meeting virtually. The Panel further indicated its intention to hold the second

38 Switzerland's communication dated 2 June 2020, pp. 1-2.
39 United States' communication dated 2 June 2020, paras. 9-10; United States' communication dated
5 June 2020, para. 2.
40 United States' communication dated 2 June 2020, para. 17.
41 United States' communication dated 2 June 2020, para. 15; United States' communication dated
5 June 2020, para. 5.
42 United States' communication dated 5 June 2020, para. 3.
43 United States' communication dated 2 June 2020, para. 11; United States' communication dated
5 June 2020, para. 5.
44 United States' communication dated 5 June 2020, para. 4.
45 United States' communication dated 28 July 2020; United States' communication dated
9 September 2020; United States' communication dated 20 October 2020; and United States' communication
dated 4 November 2020.
46 Switzerland's communication dated 28 July 2020; Switzerland's communication dated
9 September 2020; Switzerland's communication dated 20 October 2020; and Switzerland's communication
dated 4 November 2020.

substantive meeting in closed session given inter alia the limited access to the WTO building and the
logistical demands of holding virtual substantive meetings.
1.3.5.3 Use of a virtual meeting platform for the second substantive meeting of the Panel
with the parties
1.31. In its decision of 10 November 2020, the Panel noted its intention to conduct the second
meeting through the Cisco Web ex platform and circulated draft add itional working procedures
requiring, among other things, that all remote participants follow the security rules contained in
these additional working procedures as well as any additional security guidance that may be provided
by the host. The Panel also proposed to arrange advance testing sessions with the parties to ensure
their remote participation and invited comments from the parties on the draft additional working
procedures.
1.32. In its comments on the draft additional working procedures, Switzerland suggested including
a procedure for parties to signal that they want to comment on the other party 's statement or
response to Panel's question, prohibiting recording of the virtual meeting, and providing for detailed
contingency measures in case of sudden technical failures. 47 The United States requested that the
Panel (a) provide all questions to the parties at least two weeks in advance; (b) refrain from asking
additional or follow-up questions during the session; and (c) prohibit parties fr om commenting on
each other's responses to the Panel's questions during the session. The United States reasoned that
health concerns preven ted its delegation from gathering in person to coordinate responses. The
United States further cited technical considerations – "including the inability of USTR employees to
participate in a meeting via Webex from telework locations" – in support of its request. Finally, the
United States requested that the Panel enable the Webex dial-in feature to allow individuals from its
delegation to connect by phone and reflect this adjustment in the proposed additional working
procedures.48
1.33. Taking note of the parties' comments, the Panel declined the United States' request to ( a)
refrain from asking additional or follow-up questions during the session, and ( b) prohibit parties
from commenting on each other's responses to the Panel's questions during the session. The Panel
observed that it had decided to divide the second substantive meeting into two four -hour sessions
with two weeks between the sessions. The Panel found that this arrangement would allow each party
the time to confer within its delegation and respond to possible questions from the Panel or the other
party throughout the course of the meeting. The Pan el also noted that the parties would have the
opportunity to provide further comments in writing in response to questions after the meeting.49
1.34. In the Additional Working Procedures for virtual meetings, the Panel indicated that the
meeting would be held in closed session, with remote access limited to registered participants.
Accordingly, for security and confidentiality reasons, the Panel decided not to enable the dial -in
feature on Webex. Further, taking Switzerland's comments into consideration, the Pane l expressly
prohibited recording of the meeting by the parties in the Additional Working Procedures.
1.3.5.4 Impact on coordination with the other disputes where the same three persons act
as panelists
1.35. As discussed in section 1.3.4 of this Report, the Panel made several arrangements at each
stage of the proceedings to maintain harmonized timetables in all disputes where the same three
persons are acting as panelists. However, i n its communications of 13 October 2020 and
23 October 2020, the Panel noted that the complainants across these disputes presented diverging
views on the way forward for the second substantive meeting in light of the COVID -19 pandemic.
The Panel indicated to the parties that this divergence was difficult to reconcile with Switzerland's
initial request to maintain harmonized timetables in all disputes. Accordingly, the Panel sought the
parties' views on the feasibility of maintaining such harmonization going forward. The Panel also
invited the parties' comments on the implications of the differences among the complainants in these
disputes on enhanced third -party rights, and in particul ar on access to written submissions and

47 Switzerland's communication dated 16 November 2020.
48 United States' communication dated 16 November 2020.
49 Panel communication to the parties dated 1 December 2020.

responses to Panel questions, if the Panel determined that it was not viable to maintain harmonized
timetables.
1.36. Switzerland argued that the Panel should maintain harmonized timetables in all the disputes
as they rela ted to the same matter . Switzerland indicated that it would not object to the Panel
proceeding differently in these disputes if such harmonization of timetables was maintained.50 In
Switzerland's view, adopting different modalities for the second substantive meeting would not
provide a strategic advantage to complainants in any of the disputes. However, Switzerland noted
that the Panel should avoid arrangements that would preclude the possibility of maintaining
harmonized timetables, such as proceeding via videoconferencing in some disputes and organi zing
in-person meetings in others at a later stage. 51 Switzerland further requested that enhanced
third-party rights already granted by the Panel in respect of the upcoming stages of the proceedings
be maintained.52
1.37. The United States objected to proceeding differently across the disputes in which the same
three persons serve as panelists, arguing that doing so would provide a strategic benefit to the
complainants to the disadvantage of the United States.53 Moreover, the United States observed that
should the Panel move forward with different formats and different timetables across these disputes,
the United States would no longer agree t o open any of the proceedings to public viewing. 54 The
United States reasoned that complainants participating in later meetings would have an opportunity
to view the earlier open meeting s and adjust their statements and arguments accordingly. 55 For
similar reasons, the United States also requested that the Panel rescind its decision on enhanced
third-party rights in the event it acceded to the complainants' diverging requests, arguing that such
enhanced rights would serve to unfairly advantage t hose third parties that are also parties in their
own disputes.56
1.38. The Panel provided its decision on the second substantive meeting to the parties on
10 November 2020, where it noted that Article 9.3 of the DSU provides for harmonizing timetables
to the "greatest extent possible" . The Panel observed that the compatibility of positions taken by
parties across disputes, or lack thereof, was a significant factor in assessing the possibility of
harmonizing timetables. In particular, the Panel considered that the harmonization of timetables
would not compel the adoption of alternative meeting procedures by virtual means even in those
disputes where both the complainant and the respondent ha d expressed a preference to wait until
in-person meetings were possible. In this light, the Panel concluded that if the divergent positions
of the parties across the disputes resulted in certain meetings being held at a later date, it would no
longer be possible to harmonize the time tables across the disputes. The Panel further noted that if
the timetables across the disputes were not harmoni zed, the rights of third parties for subsequent
stages in the disputes would be as provided for in Article 10 of the DSU, and the Panel would not
grant third parties further access to any statements, submissions, or exchanges from the parties in
each dispute.
1.39. Based on the foregoing, the Panel scheduled its second substantive meeting with the parties
in this dispute for 12 and 26 January 2021. Rights of third parties for subsequent stages in the
disputes were limited to those provided in Article 10 of the DSU.
2 FACTUAL ASPECTS
2.1 Section 232 and the United States Department of Commerce reports on steel and
aluminium
2.1. This section provides the legislative and regulatory background of the measures at issue in this
dispute and, in particular, of:

50 Switzerland's communication dated 20 October 2020, pp. 1-2.
51 Switzerland's communication dated 4 November 2020, paras. 3-4.
52 Switzerland's communication dated 20 October 2020, p. 2; Switzerland's communication dated
4 November 2020, para. 5.
53 United States' communication dated 20 October 2020, para. 2.
54 United States' communication dated 4 November 2020, para. 7.
55 United States' communication dated 20 October 2020, para. 5.
56 United States' communication dated 4 November 2020, para. 7.

a. Section 232 of the Trade Expansion Act of 1962, as amended ( United States Code, Title
19, Section 1862) (Section 232)57 and its implementing regulation, United States Code of
Federal Regulations, Title 15, Part 70558;
b. "The Effect of Imports of Steel on the National Security: An Investigation Conducted Under
Section 232 of the Trade Expansion Act of 1962, As Amended", United States Department
of Commerce Report, 11 January 2018 (Steel Report)59; and
c. "The Effects of Imports of Aluminum on the National Security: An Investigation Conducted
Under Section 232 of the Trade Expansion Act of 1962, As Amended", United States
Department of Commerce Report, 17 January 2018 (Aluminium Report).60
2.1.1 Section 232
2.2. Pursuant to Section 232, upon request of the head of any department or agency, upon
application of an interested party, or upon his own motion, the U nited States (US) Secretary of
Commerce shall immediately initiate an appropriate investigation to determine the effect s on the
national security of imports of the article which is the subject of such request, application, or
motion.61 The US Secretary of Commerce shall also immediately provide notice to the US Secretary
of Defense of any such investigation, and shall consult with the Secretary of Defense regarding the
methodological and policy questions raised in such investigation.62
2.3. Section 232 further provides that no later than 270 days after an investigation is initiated with
respect to any article, the US Secretary o f Commerce shall submit to the US President a report on
the findings of the investigation with respect to the effect of the importation of such article in such
quantities or under such circumstances upon the national security . Section 232 directs the US
Secretary of Commerce to make recommendations for action or inaction based on such findings. If
the US Secretary of Commerce finds that such article is being imported into the United States in
such quantities or under such circumstances as to threaten to imp air the national security, the
Secretary shall so advise the US President in such report.63
2.4. Within 90 days of receiving such report, the US President shall: (a) determine whether the
President concurs with the finding of the Secretary; and (b) if the President concurs, determine the
nature and duration of the action that, in the judgment of the President, must be taken to adjust
imports of the article and its derivatives so that such imports will not threaten to impair national
security.64 If the US Preside nt determines to take action to adjust imports of the article and its
derivatives, the US President shall implement such action within 15 days.65 Further, the action taken
by the US President may be the negotiation of an agreement which limits or restricts importation
into, or exportation to, the United States of the article that threatens to impair US national security,
or such other actions as th e US President deems necessary to adjust the imports of the article so
that the imports will not threaten to impair US national security.66
2.5. Section 232 also sets out factors that should be analysed when conducting an investigation to
determine the effects of imports of a product on the national security. In particular, it provides that
the US Secretary of Commerce and the US President shall, in light of the requirements of national
security and without excluding other relevant factors, give consideration to:
a. domestic production needed for projected national defence requirements;
b. the capacity of domestic industries to meet such requirements;

57 Section 232, (Exhibit CHE-1 and USA-1).
58 Section 232 regulations, (Exhibit CHE-21 and USA-2).
59 Steel Report, (Exhibit CHE-2 and USA-7).
60 Aluminium Report, (Exhibit CHE-5 and USA-8).
61 Section 232, (Exhibit CHE-1 and USA-1), § 1862(b)(1)(A).
62 Section 232, (Exhibit CHE-1 and USA-1), §§ 1862(b)(1)(B) and (b)(2)(A).
63 Section 232, (Exhibit CHE-1 and USA-1), § 1862(b)(3)(A).
64 Section 232, (Exhibit CHE-1 and USA-1), § 1862(c)(1)(A).
65 Section 232, (Exhibit CHE-1 and USA-1), § 1862(c)(1)(B).
66 Section 232, (Exhibit CHE-1 and USA-1), § 1862(c)(3)(A).

c. existing and anticipated availabilities of the human resources, products, raw materials,
and other supplies and services essential to the national defence;
d. the requirements of growth of such industries and such supplies and services including the
investment, exploration, and development necessary to assure such growth; and
e. the importation of goods in terms of their quantities, availabilities, character, and use as
those affect such industries and the capacity of the United States to meet national security
requirements.67
2.6. In addition to these factors, Section 232 provides that in the administration of this section, the
US Secretary of Commerce and the US President shall further recognize the close relation of the
economic welfare of the United States to its national security, and shall take into consideration:
a. the impact of foreign competition on the economic welfare of individual domestic
industries; and
b. any substantial unemployment, decrease in revenues of government, loss of skills or
investment, or other serious effects resulting from the displacement of any domestic
products by excessive imports.68
2.7. Additional regulations in the United States Code of Federal Regulations, Title 15, Part 705 set
out the procedures according to which the US Department of Commerce shall commence and
conduct its investigation to determine the effect on the national security of the imports of any article,
as well as issue the report and recommendation to the President of the United States for action or
inaction regarding an adjustment of the imports of the article(s) in question.69
2.1.2 The Steel Report
2.8. The Steel Report of 11 January 2018 summarizes the findings of an investigation conducted by
the US Department of Commerce pursuant to Section 232 into the effect of imports of steel mill
products on the national security of the United States.
2.1.2.1 Initiation and investigation process
2.9. On 19 April 2017, the US Secretary of Commerce initiated an investigation to determine the
effect of imported steel on national sec urity under Section 232. The US Department of Commerce
notified the US Department of Defense of the investigation in a letter dated 19 April 2017.70 On
20 April 2017, the US President signed a Presidential Memorandum directing the US Secretary of
Commerce to proceed expeditiously in conducting his investigation and submit a report on his
findings to the President. 71 On 21 April 2017, the US Department of Commerce published in the
Federal Register a notice about the initiation of the investigation. The notice also announced the
opening of the public comment period as well as a public hearing to be held on 24 May 2017.72 The
US Department of Commerce held a public hearing to elicit further information concerning the
investigation in Washington, D.C., on 24 May 2017.73
2.10. In addition to the notification provided by its 19 April 2017 letter to the US Department of
Defense, the US Department of Commerce carried out consultations with the US Department of
Defense regarding methodological and po licy questions that arose during the investigation.
According to the Steel Report, discussions were held with the US Army Materiel Command, the
Defense Logistics Agency, the US Navy/Naval Air Systems Command, and the Under Secretary of
Defense for Acquisit ions & Logistics, Manufacturing , and Industrial Base Policy. Discussions were
also held with "appropriate officers of the United States", including the US Department of State,
Department of the Treasury, Department of the Interior/US Geological Survey, the Department of

67 Section 232, (Exhibit CHE-1 and USA-1), § 1862(d).
68 Section 232, (Exhibit CHE-1 and USA-1), § 1862(d).
69 Section 232 regulations, (Exhibit CHE-21 and USA-2), §§ 705.1-705.12.
70 Steel Report, (Exhibit CHE-2 and USA-7), p. 18.
71 Steel Report, (Exhibit CHE-2 and USA-7), p. 18.
72 Steel Report, (Exhibit CHE-2 and USA-7), p. 18.
73 Steel Report, (Exhibit CHE-2 and USA-7), p. 18.

Homeland Security/US Customs and Border Protection, the International Trade Commission, and the
Office of the United States Trade Representative.74
2.1.2.2 Product scope
2.11. The Steel Report describes its product coverage as steel mill products which ar e defined at
the Harmonized System 6-digit level as: 720610 through 721650, 721699 through 730110, 730210,
730240 through 730290, and 730410 through 730690, including any subsequent revisions to these
HS codes.75 Generally, these products fall into five categories:
a. Carbon and Alloy Flat Product s (Flat Products): Steel products p roduced by rolling
semifinished steel through varying sets of rolls. This category includes sheets, strips, and
plates.76
b. Carbon and Alloy Long Products (Long Products): Steel products that fall outside the flat
products category. This category includes bars, rails, rods, and beams.77
c. Carbon and Alloy Pipe and Tube Products (Pipe and Tube Products): Either seamless or
welded pipe and tube products. Some of these products may include stainless as well as
alloys other than stainless.78
d. Carbon and Alloy Semi -finished Products (Semi -finished Products): The initial,
intermediate solid forms of molten steel, to be re -heated and furt her forged, rolled,
shaped, or otherwise worked into finished steel products. This category includes blooms,
billets, slabs, ingots, and steel for castings.79
e. Stainless Products: Steel products, in flat -rolled, long, pipe and tube, and semi -finished
forms, containing at minimum 10.5% chromium and, by weight, 1.2% or less of carbon,
offering better corrosion resistance than other steel.80
2.1.2.3 Findings and recommendations by the US Secretary of Commerce
2.12. The Steel Report refers to the nonexclusive lists of factors in Section 232 and its implementing
regulations that the US Department of Commerce must consider in evaluating the effect of imports
on the national security.81 The Steel Report further refers to a determination by the US Department
of Commerce in 2001 that (a) national defence includes both defence of the United States directly
and its ability to project military capabilities globally , and (b) the term "national security" can be

74 Steel Report, (Exhibit CHE-2 and USA-7), pp. 19-20.
75 Steel Report, (Exhibit CHE-2 and USA-7), p. 21.
76 Flat products are covered under the following 6-digit HS codes: 720810, 720825, 720826, 720827,
720836, 720837, 720838, 720839, 720840, 720851, 720852, 720853, 720854, 720890, 720915, 720916,
720917, 720918, 720925, 720926, 720927, 720928, 720990, 721011, 721012, 721020, 721030, 721041,
721049, 721050, 721061, 721069, 721070, 721090, 721113, 721114, 721119, 721123, 721129, 721190,
721210, 721220, 721230, 721240, 721250, 721260, 722511, 722519, 722530, 722540, 722550, 722591,
722592, 722599, 722611, 722619, 722691, 722692, 722693, 722694, 722699. (Steel Report, (Exhibit CHE-2
and USA-7), p. 21).
77 Long products are covered under the following 6-digit HS codes: 721310, 721320, 721391, 721399,
721410, 721420, 721430, 721491, 721499, 721510, 721550,721590, 721610, 721621, 721622, 721631,
721632, 721633, 721640, 721650, 721699, 721710, 721720, 721730, 721790, 722520, 722620,722710,
722720, 722790, 722810, 722820, 722830, 722840, 722850, 722860, 722870, 722880, 722910,722920,
722990, 730110, 730210, 730240, 730290. (Steel Report, (Exhibit CHE-2 and USA-7), pp. 21-22).
78 Pipe and Tube products are covered under the following 6-digit HS codes: 730410, 730419, 730421,
730423, 730429, 730431, 730439, 730451, 730459, 730490, 730511, 730512, 730519, 730520, 730531,
730539, 730590, 730610, 730619, 730620, 730629, 730630, 730650, 730660, 730661, 730669, 730690.
(Steel Report, (Exhibit CHE-2 and USA-7), p. 22).
79 Semi-finished products are covered under the following 6-digit HS codes: 720610, 720690, 720711,
720712, 720719, 720720, 722410, 722490. (Steel Report, (Exhibit CHE-2 and USA-7), p. 22).
80 Stainless steel products are covered under the following 6-digit HS codes: 721810, 721891, 721899,
721911, 721912, 721913, 721914, 721921, 721922, 721923, 721924, 721931, 721932, 721933, 721934,
721935, 721990, 722011, 722012, 722020, 722090, 722100, 722211, 722219, 722220, 722230, 722240,
722300, 730411, 730422, 730424, 730441, 730449, 730611, 730621, 730640. (Steel Report, (Exhibit CHE-2
and USA-7), p. 22).
81 Steel Report, (Exhibit CHE-2 and USA-7), p. 13.

interpreted more broadly to include the general security and welfare of certain industries, beyond
those necessary to satisfy national defence requirements that are critical to the minimum operations
of the economy and government.82
2.13. In the Steel Report, th e US Secretary of Commerce determined that the displacement of
domestic steel by excessive imports and the consequent adverse impact of those quantities of steel
imports on the economic welfare of the domestic steel industry, along with the circumstance of
global excess capacity in steel, were "weakening our internal economy" and therefore "threaten to
impair" US national security as defined in Section 232.83 According to the Steel Report, the continued
rising levels of imports of foreign steel threaten to impair the national security by placing the US
steel industry at substantial risk of displacing the basic oxygen furnace and other steelmaking
capacity, and the related supply chain needed to produce steel for critical infrastructure and national
defence.84 The Steel Report refers to global excess steel capacity as a circumstance that contributes
to the "weakening of [the US] internal economy" that "threaten[s] to impair" US national security
as defined in Section 232.85
2.14. In arriving at this general conclus ion, the Steel Report relied on four main overarching
findings, which in turn, comprise several intermediate findings:
a. Steel is important to US national security because 86: (i) steel is needed for national
defence requirements87; (ii) steel is required for US critical infrastructure88; (iii) domestic
steel production is essential for national security89; (iv) domestic steel production depends
on a healthy and competitive US industry90; and (v) steel is consumed in critical
industries.91
b. Imports in such quantities as are presently found adversely impact the economic welfare
of the US steel industry due to92: (i) continued increase in imports of steel products 93;
(ii) high import penetration 94; (iii) high import to export ratio 95; (iv) prevailing steel
prices96; (v) steel mill closures97; (vi) declining employment trend since 199898; (vii) trade
actions such as anti -dumping and countervailing duties 99; (viii) loss of domestic
opportunities to bidders using imported steel100; (ix) financial distress101; and (x) limited
capital expenditures arising from falling revenue and reduced profits.102
c. Displacement of domestic steel by excessive quantities of imports has the serious effect
of weakening the US internal economy because103: (i) domestic steel production capacity
is stagnant and concentrated 104; (ii) production is well below demand 105; (iii) utilization

82 Steel Report, (Exhibit CHE-2 and USA-7), p. 13 (referring to Department of Commerce, Bureau of
Export Administration: The Effect of Imports of Iron Ore and Semi-Finished Steel on the National Security,
October 2001). The Steel Report further clarifies that it uses the more recent 16 critical infrastructure sectors
identified in Presidential Policy Directive 21 instead of the 28 critical industry sectors used by the Bureau of
Export Administration in the 2001 Report. (Ibid. p. 14).
83 Steel Report, (Exhibit CHE-2 and USA-7), p. 55.
84 Steel Report, (Exhibit CHE-2 and USA-7), p. 55.
85 Steel Report, (Exhibit CHE-2 and USA-7), p. 55.
86 Steel Report, (Exhibit CHE-2 and USA-7), p. 23.
87 Steel Report, (Exhibit CHE-2 and USA-7), p. 23.
88 Steel Report, (Exhibit CHE-2 and USA-7), pp. 23-24.
89 Steel Report, (Exhibit CHE-2 and USA-7), pp. 24-25.
90 Steel Report, (Exhibit CHE-2 and USA-7), p. 25.
91 Steel Report, (Exhibit CHE-2 and USA-7), p. 25.
92 Steel Report, (Exhibit CHE-2 and USA-7), p. 27.
93 Steel Report, (Exhibit CHE-2 and USA-7), p. 27.
94 Steel Report, (Exhibit CHE-2 and USA-7), p. 29.
95 Steel Report, (Exhibit CHE-2 and USA-7), p. 30.
96 Steel Report, (Exhibit CHE-2 and USA-7), pp. 31-32.
97 Steel Report, (Exhibit CHE-2 and USA-7), p. 33.
98 Steel Report, (Exhibit CHE-2 and USA-7), p. 35.
99 Steel Report, (Exhibit CHE-2 and USA-7), p. 36.
100 Steel Report, (Exhibit CHE-2 and USA-7), p. 36.
101 Steel Report, (Exhibit CHE-2 and USA-7), p. 37.
102 Steel Report, (Exhibit CHE-2 and USA-7), p. 40.
103 Steel Report, (Exhibit CHE-2 and USA-7), p. 41.
104 Steel Report, (Exhibit CHE-2 and USA-7), p. 41.
105 Steel Report, (Exhibit CHE-2 and USA-7), p. 46.

rates are well below economically viable levels 106; and (iv) declining steel production
facilities limits capacity available for a national emergency.107
d. Global excess steel capacity is a circumstance that contributes to the weakening of the
domestic economy because 108: (i) free markets globally are adversely affecte d by
substantial chronic global excess steel production led by China109; and (ii) increasing global
excess steel capacity will further weaken the internal economy as US steel producers will
face increasing import competition.110
2.15. In the Steel Report, the US Secretary of Commerce recommends, due to the threat of steel
imports to US national security, that the US President take immediate action by adjusting the level
of imports through quotas or tariffs on steel imported into the United States, as well as direct
additional actions to keep the US steel industry financially viable and able to meet US national
security needs. The Steel Report states that the quota or tariff imposed should be sufficient, after
accounting for any exclusions, to enable the US steel producers to be able to operate at about 80%
or better of the industry's capacity utilization rate based on available capacity in 2017.111
2.16. In particular, the Steel Report recommends the following two alternative courses of action:
a. Global quota or tariff : The Steel Report recommends that this should be done by
(i) imposing a quota of 63% of the 2017 import level on all imported steel products,
applied on a country and steel product basis, or (ii) applying a 24% tariff on all imported
steel products, in addition to any anti-dumping or countervailing duty collections applicable
to any imported steel product.112
b. Tariff on a subset of countries: The Steel Report alternatively recommends applying a 53%
tariff on all imported steel products from Brazil, the Republi c of Korea , the
Russian Federation, Türkiye, India, Viet Nam, China, Thailand, South Africa, Egypt,
Malaysia, and Costa Rica, in addition to any anti-dumping or countervailing duty collections
applicable to any steel products from these countries. All other countries would be limited
to 100% of their 2017 import level.113
2.17. The Steel Report further states that, in selecting an alternative, the US President could
determine that specific countries should be exempted from the proposed 63% quota or 24% tariff
by granting those specific countries 100% of their prior imports in 2017, based on an overriding
economic or security interest of the United States.114 The Steel Report also recommends an appeal
process by which affected US parties could seek an exclusion from the tariff or quota imposed and
notes that the US Secretary of Commerce would grant such exclusions based on demonstrating (a)
lack of sufficient US production capacity of comparable products or (b) specific national security
based considerations.115
2.1.3 The Aluminium Report
2.18. The Aluminium Report of 17 January 2018 summarizes the findings of an investigation
conducted by the US Department of Commerce pursuant to Section 232 into the effect of imports of
aluminium products on the national security of the United States.

106 Steel Report, (Exhibit CHE-2 and USA-7), p. 47.
107 Steel Report, (Exhibit CHE-2 and USA-7), p. 49.
108 Steel Report, (Exhibit CHE-2 and USA-7), p. 51.
109 Steel Report, (Exhibit CHE-2 and USA-7), p. 51.
110 Steel Report, (Exhibit CHE-2 and USA-7), p. 53.
111 Steel Report, (Exhibit CHE-2 and USA-7), p. 58.
112 Steel Report, (Exhibit CHE-2 and USA-7), pp. 59-60.
113 Steel Report, (Exhibit CHE-2 and USA-7), p. 60.
114 Steel Report, (Exhibit CHE-2 and USA-7), p. 60.
115 Steel Report, (Exhibit CHE-2 and USA-7), p. 61.

2.1.3.1 Initiation and investigation process
2.19. On 26 April 2017, the US Secretary of Commerce initiated an investigation to determine the
effect of imported alumin ium on national security under Section 232.116 The US Department of
Commerce notified the US Department of Defense of the investigation in a letter dated
26 April 2017.117 On 27 April 2017, the US President signed a Presidential Memorandum directing
the US Secretary of Commerce to proceed expeditiously in conducting his investigation and submit
a report on his findings to the President.118 On 3 May 2017, the US Department of Commerce invited
interested parties to submit written comments, opinions, data, information, or advice. 119 The US
Department of Commerce held a public hearing to elicit further information concerning this
investigation in Washington, D.C., on 22 June 2017.120
2.20. In addition to the notification to the US Department of Defense on 26 April 2017, the US
Department of Commerce consulted with the US Department of Defense regarding methodological
and policy questions that arose during the investigation and also consulted with other agencies of
the US Government with expertise and information regarding the aluminium industry, including the
US Geological Survey of the Department of the Interior and the US International Trade
Commission.121
2.1.3.2 Product scope
2.21. The Aluminium Report sets out its product scope in the following table:
Table 1: Harmonized Tariff Schedule for Aluminum Products122
Harmonized Tariff Schedule for Aluminum Products
HTS Code Description
7601 Unwrought aluminum
7604 Aluminum bars, rods and profiles
7605 Aluminum wire
7606 Aluminum plates, sheets, and strip, of a thickness exceeding
0.2 mm*
7607 Aluminum foil (whether or not printed, or backed with paper,
paperboard, plastics or similar backing materials) of a thickness
(excluding any backing) not exceeding 0.2 mm
7608 Aluminum tubes and pipes
7609 Aluminum tube and pipe fittings
7616.99.51.60 Other articles of aluminum: castings
7616.99.51.70 Other articles of aluminum: forgings
*Note: This category includes can sheet for aluminum can packaging

2.1.3.3 Findings and recommendations by the US Secretary of Commerce
2.22. The Aluminium Report refers to the nonexclusive lists of factors in Section 232 and its
implementing regulations that the US Secretary of Commerce must consider in evaluating the effect
of imports on national security.123 The Aluminium Report further refers to a determination by the US
Department of Commerce in 2001 that (a) national defen ce includes both defen ce of the
United States directly and its ability to project military capabilities globally, and (b) the term
"national security" can be interpreted more broadly to include the general security and welfare of

116 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 18.
117 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 18.
118 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 18.
119 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 19.
120 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 19.
121 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 19.
122 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 20.
123 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 12.

certain industries, beyond those necessary to satisfy national defence requirements that are critical
to the minimum operations of the economy and government.124
2.23. In the Aluminium Report , the US Secretary of Commerce determined that the present
quantities and circumstance of alumin ium imports were "weakening our internal economy" and
"threaten to impair the national security as defined in Section 232".125 According to the Aluminium
Report, the continued rise in levels of imports of foreign aluminium threatens to impair US national
security by placing the US aluminium industry at substantial risk of losing the capacity to produce
aluminium and aluminium products needed to support critical infrastructure and national defence.126
The Aluminium Report refers to excess production and capacity in China as a major factor
contributing to the decline in US domestic aluminium production and loss of domestic production
capacity.127
2.24. In arriving at this general conclusion, the Aluminium Report relies on findings including:
a. Aluminium is essential to US national security because128: (i) aluminium is required for US
national defence129; and (ii) aluminium is required for US critical infrastructure.130
b. Domestic production of aluminium is essential to national security.131
c. Domestic aluminium production capacity is declining because132: (i) the United States is a
relatively high -cost producer 133; and (ii) aluminium smelters are permanently shutting
down.134
d. Domestic production is well below demand.135
e. US imports of alumin ium are increasing in aggregate 136 and in particular , imports of
(i) unwrought aluminium137; (ii) aluminium bars, rods and profiles 138; (iii) aluminium
plate, sheet and strip139; (iv) aluminium foil140; (v) aluminium pipes and tubes141; and (vi)
aluminium castings and forgings.142
f. US aluminium exports are declining.143
g. The United States' import to export ratio for the aluminium product categories subject to
this investigation is high.144

124 Aluminium Report, (Exhibit CHE-5 and USA-8), pp. 12-13 (referring to Department of Commerce,
Bureau of Export Administration: The Effect of Imports of Iron Ore and Semi-Finished Steel on the National
Security, October 2001). The Aluminium Report further clarifies that while it uses these interpretations of
"national defense" and "national security", it refers to the more recent 16 critical infrastructure sectors
identified in Presidential Policy Directive 21 instead of the 28 critical industry sectors used by the Bureau of
Export Administration in the 2001 Report. (Ibid. p. 13).
125 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 104.
126 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 104.
127 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 104.
128 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 23.
129 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 24.
130 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 36.
131 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 39.
132 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 40.
133 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 41.
134 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 48.
135 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 59.
136 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 63.
137 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 70.
138 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 71.
139 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 72.
140 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 73.
141 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 74.
142 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 75.
143 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 75.
144 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 84.

h. Aluminium imports are impacting the welfare of the US alumin ium industry because:145
(i) employment in the aluminium industry is declining as several smelters were either
permanently shut down or temporarily idled 146; (ii) the financial status of the US
aluminium industry is poor147; (iii) research and development expenditures are falling148;
(iv) capital expenditures for the aluminium industry are increasing149; and (v) aluminium
prices have dropped sharply.150
2.25. In the Aluminium Report, the US Secretary of Commerce recommends , due to the threat of
aluminium imports to US national security, that the US President take immediate action by adjusting
the level of these imports. 151 The recommended adjustments would be imposed on imports of:
(i) unwrought aluminium (Harmonized Tariff Schedule (HTS) Code 7601); (ii) aluminium castings
and forgings (HTS Codes 7616.99.51.60 and 7616.99.51.70); (iii) aluminium plate, sheet, strip, and
foil (flat -rolled products) (HTS Codes 7606 and 7607); (iv) aluminium wire (HTS Code 7605);
(v) aluminium bars, rods and profiles (HTS Code 7604); (vi) aluminium tubes and pipes (HTS Code
7608); and (vii) alumin ium tube and pipe fittings (HTS Code 7609) based on 2017 annualized
imports in those categories. The Aluminium Report states that the recommended quotas or tariffs
would be designed, even after any exemptions (if gra nted), to enable US aluminium producers to
utilize an average of 80% of their production capacity.152
2.26. In particular, the Aluminium Report recommends the following two alternative courses of
action:
a. Global quota or tariff: The Aluminium Report recommends that action should be taken by
imposing on unwrought aluminium and the other aluminium product categories (i) a quota
of 86.7% or (ii) a tariff rate of 7.7% in addition to any anti-dumping or countervailing duty
collections applicable to such products.153
b. Tariff on a subset of countries: The Aluminium Report alternatively recommends applying
a 23.6% tariff on all imported aluminium products from China; Hong Kong, China; the
Russian Federation; Venezuela; and Viet Nam; in addition to anti -dumping or
countervailing duty collections applicable to aluminium products from these countries. All
other countries would be limited to 100% of their 2017 import volumes.154
2.27. The Aluminium Report further states that, in selecting an alternative, the US President could
determine that specific countries should be exempted from the proposed quota by granting those
specific countries 100% of their prior imports in 2017 or exempting them entirely, based on an
overriding economic or security interest of the United States, which could include their willingness
to work with the United States to address global excess capacity and other challenges facing the US
aluminium industry.155 The Aluminium Report also recommends an appeal process by which affected
US parties could seek an exclusion from the tariff or quota imposed and notes that the US Secretary
of Commerce would grant exclusions based on demonstrating (a) a lack of sufficient US production
capacity of comparable products or (b) specific national security based considerations.156
2.1.4 Presidential Proclamations
2.28. The US Secretary of Commerce transmitted the Steel Report and the Aluminium Report to
the US President on 11 January 2018 and 19 January 2018 respectively.157

145 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 89.
146 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 89.
147 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 91.
148 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 95.
149 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 97.
150 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 100.
151 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 107.
152 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 107.
153 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 108.
154 Aluminium Report, (Exhibit CHE-5 and USA-8), pp. 108-109.
155 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 109.
156 Aluminium Report, (Exhibit CHE-5 and USA-8), p. 109.
157 Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11625; Presidential Proclamation
9704, (Exhibit CHE-13 and USA-10), p. 11619.

2.29. On 8 March 2018, the US P resident issued two proclamations adjusting imports into the
United States: (a) Presidential Proclamation 9705 in relation to steel imports158 and (b) Presidential
Proclamation 9704 in relation to aluminium imports.159 The US President concurred with the findings
in the Steel and Aluminium Reports, and pursuant to the recommendations in these reports, imposed
additional import duties of 25% and 10% respectively on certain steel and aluminium imports from
all countries, with exemptions for imports from Canada and Mexico.160 The US President welcomed
any country with which the United States has a security relationship to discuss alternative ways to
address the threatened impairment of US national security caused by imports from that country.161
These proclamations also authori zed the US Secretary of Commerce to provide relief from the
additional duties for any steel or any aluminium article determined not to be produced in the
United States in a sufficient and reasonably available amount or in a satisfactory quality, or based
upon specific national security considerations.162
2.30. Following Presidential Proclamations 9704 and 9705, the US President issued additional
proclamations adjusting steel and aluminium imports into the United States. As described in greater
detail below, these proclamations removed the exemptions granted to Canada and Mexico 163,
granted various exemptions to certain WTO Members 164, introduced import quotas on steel and
aluminium imports from certain countries165, and increased the additional import duty applicable to
steel imports from Türkiye to 50%. 166 Subsequent proclamations al so note the existence of
agreements between the United States and countries exempted from the additional duties.167
2.2 Measures at issue
2.31. In its panel request, Switzerland describes the measures at issue as the import adjustments
on certain steel products and certain aluminium products. Switzerland states in its panel request
that the measures consist of the additional import duties and quotas as well as the exemptions and
exclusions from such duties and quotas.168 Switzerland further notes:
a. Through Presidential Proclamations 9705 and 9711 of 8 and 22 March 2018, the
United States imposed an additional import duty of 25% on certain steel products from all
countries except Argentina, Australia, Brazil, Canada, the European Union, the Republic of
Korea and Mexico, taking effect on 23 March 2018.169
b. Through Presidential Proclamations 9704 and 9710 of 8 and 22 March 2018, the
United States imposed an additional import duty of 10% on certain aluminium products
from all countries except Argentina, Australia, Brazil, Canada, the Republic of Korea, the
European Union and Mexico, taking effect on 23 March 2018.170
c. Through Presidential Proclamations 9739 and 9740 dated 30 April 2018, the President of
the United States exempted imports from Argentina, Australia, Brazil and the Republic of
Korea from the additional duties on certain steel products and exempted imports from
Argentina, Australia and Brazil from the additional duties on certain aluminium products.
The United States also extended the exemption from the additional duties for imports from
Canada, the European Union and Mexico until 31 May 2018.171

158 Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11625.
159 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11619.
160 Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11627; Presidential Proclamation
9704, (Exhibit CHE-13 and USA-10), p. 11621.
161 Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11626; Presidential Proclamation
9704, (Exhibit CHE-13 and USA-10), p. 11620.
162 Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11627; Presidential Proclamation
9704, (Exhibit CHE-13 and USA-10), p. 11621.
163 See sections 2.2.1.2 and 2.2.2.2 below.
164 See sections 2.2.1.2 and 2.2.2.2 below.
165 See sections 2.2.1.3 and 2.2.2.3 below.
166 See section 2.2.1.1 below.
167 See sections 2.2.1.2 and 2.2.2.2 below.
168 Switzerland's panel request, p. 2.
169 Switzerland's panel request, p. 1.
170 Switzerland's panel request, p. 1.
171 Switzerland's panel request, pp. 1-2.

d. The United States has introduced quotas limi ting the quantities of steel imports from
Argentina, Brazil and the Republic of Korea , pursuant to an agreement with those
countries, and quotas limiting the quantities of aluminium imports from Argentina,
pursuant to an agreement with that country.172
e. Presidential Proclamations 9704 and 9705 of 8 March 2018 have authorized the US
Secretary of Commerce to provide relief from the additional duties upon request of affected
parties located in the United States if the steel or aluminium articles are determined n ot
to be produced in the United States in a sufficient and reasonably available amount or of
a satisfactory quality or based upon specific national security considerations. On
19 March 2018, the US Department of Commerce issued an Interim Final Rule introducing
supplements No. 1 and No. 2 to 15 CFR Part 705 which set forth the requirements and
process for how a directly affected party located in the United States may submit requests
for product exclusions. The US Department of Commerce issued on 11 September 2018
an Interim Final Rule revising supplements No. 1 and No. 2 to 15 CFR Part 705. Through
Presidential Proclamations 9777 and 9776 of 29 August 2018, the US President has
authorized the Secretary of Commerce to provide relief from the quotas applicable to steel
products and aluminium products from those countries subject to quotas, in certain
circumstances, including where they are determined not to be produced in the
United States in a sufficient and reasonably available amount or of a satisfacto ry quality,
or upon specific national security considerations. The procedures for such requests for
exclusion are included in the Interim Final Rule as published on 11 September 2018.173
2.32. According to Switzerland, these measures have been imposed by and are evidenced by the
following documents, considered alone and in any combination174:
a. Presidential Proclamation 9704 of 8 March 2018;
b. Presidential Proclamation 9705 of 8 March 2018;
c. Presidential Proclamation 9710 of 22 March 2018;
d. Presidential Proclamation 9711 of 22 March 2018;
e. Presidential Proclamation 9739 of 30 April 2018;
f. Presidential Proclamation 9740 of 30 April 2018;
g. Presidential Proclamation 9758 of 31 May 2018;
h. Presidential Proclamation 9759 of 31 May 2018;
i. Presidential Proclamation 9772 of 10 August 2018;
j. Presidential Proclamation 9776 of 29 August 2018;
k. Presidential Proclamation 9777 of 29 August 2018;
l. 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 (U S Department of
Commerce, 11 January 2018);
m. The Effect of Imports of Aluminum on the National Security, An Investigation Conducted
Under Section 232 of the Trade Expansion Act of 1962, as Amended ( US Department of
Commerce, 17 January 2018);

172 Switzerland's panel request, p. 2.
173 Switzerland's panel request, p. 2.
174 Switzerland's panel request, p. 2.

n. Interim Final Rule regarding the Requirements for Submissions Requesting Exclusions
from the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel into
the United States and Adjusting Imports of Aluminum into the United States; and the Filing
of Objections to Submitted Exclusion Requests for Steel and Aluminum; and
o. Interim Final Rule regarding Submissions of Exclusions Requests and Objections to
Submitted Requests for Steel and Aluminum.
2.33. In its panel request, Switzerland states that it is also challenging any additional measures
amending, superseding, supplementing, updating, extending, replacing , or implementing the
measures referred to above as well as any exemptions or exclusions applied.175
2.34. In addition to the above, Switzerland considers that Section 232, as repeatedly interpreted
by the United States' authorities, including in the context of th e above and other measures, is
inconsistent with the United States' obligations under the covered agreements . Switzerland
considers that Section 232 as interpreted by the United States' authorities provides for the
imposition of measures (such as additional import duties or quotas) that restrict imports from other
WTO Members to shield the domestic production in the United States from competition with foreign
products on the grounds of an alleged threat to the national security in a manner inconsistent with
the disciplines set out in the GATT 1994 and the Agreement on Safeguards .176 In the alternative,
Switzerland submits that the ongoing use of Section 232 by the United States' authorities so as to
afford protection to the domestic production by restricting imports from other WTO Members on the
grounds of an alleged threat to US national security is inconsistent with the United States' obligations
under the covered agreements.177
2.35. In response to questions from the Panel, Switzerland further clarifies that it is challenging two
sets of measures. First, Switzerland challenges the import adjustment measures imposed by the
United States on imports of steel and aluminium products. These two measures178 consist of different
elements including the additional import duties, the import quotas, the country exemptions, and the
product exclusions from such duties and quotas. Switzerland further argues that t he "country
exemptions" element includes the seeking of and/or the conclusion of agreements by the
United States with certain countries with a view to exempt those countries from the duties and/or
quotas. Second, Switzerland challenges Section 232 as repeatedly interpreted by the US authorities
and, in the alternative, the ongoing use of Section 232 by the US au thorities so as to afford
protection to the domestic production by restricting imports from other WTO Members on the
grounds of an alleged threat to US national security.179
2.36. The following diagram depicts the Panel's understanding of Switzerland's presentation of the
measures at issue and aspects of each measure at the time of the establishment of the Panel on
4 December 2018:

175 Switzerland's panel request, p. 3.
176 Switzerland's panel request, p. 5.
177 Switzerland's panel request, p. 6.
178 Switzerland's second written submission, para. 8, fn 1 ("Switzerland challenges independently the
import adjustment measure on steel products on the one hand and the import adjustment measure on
aluminium products on the other hand").
179 Switzerland's response to Panel question No. 1.a; second written submission, paras. 8 and 17.

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

2.37. The following sections describe the measures that Switzerland challenges in this dispute.
2.2.1 The "import adjustment measure" on steel products
2.2.1.1 Additional import duties
2.38. Pursuant to Presidential Proclamation 9705 of 8 March 2018, all imports of steel products as
specified in the Proclamation shall be subject to an additional 25% ad valorem duty. According to
this Proclamation, this rate of duty is in addition to any other duties, fees, exactions, and charges
applicable to such imported steel articles.180
2.39. Subsequently, Presidential Proclamation 9772 of 10 August 2018 imposed a 50% ad valorem
duty on steel articles imported from Türkiye, beginning on 13 August 2018.181

180 Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11627.
181 Presidential Proclamation 9772, (Exhibit CHE-12), p. 40430.

2.2.1.2 Country exemptions
2.40. Presidential Proclamation 9705 of 8 March 2018 sets out that the additional 25% ad valorem
duty on imports of steel shall not be applied to imports from Canada and Mexico.182
2.41. Subsequently, Presidential Proclamation 9711 of 22 March 2018 amended Presidential
Proclamation 9705 and introduced exemptions for Australia, Argentina, the Republic of Korea, Brazil,
and the member countries of the European Union, in addition to those already granted to Canada
and Mexico, until 1 May 2018.183
2.42. Presidential Proclamation 9740 of 30 April 2018 introduced further modifications by (a)
extending the exemptions granted to Canada, Mexico, and the European Union until 1 June 2018184;
(b) extending the exemption s for Argentina, Australia, and Brazil until an unspecified date185; and
(c) extending the exemption to the Republic of Korea until an unspecified date.186
2.43. Presidential Proclamation 9759 of 31 May 2018 further extended the exemptions from the
additional import duties granted to Argentina, Australia, and Brazil until an unspecified date.187 This
Proclamation did not extend the exemptions for Canada, Mexico, and the European Union.
2.44. Presidential Proclamation 9705 welcomed any country with which the United States has a
security relationship to discuss alternative ways to address the threatened impairment of US national
security caused by imports from that country. 188 Several of the Presidential Proclamations set out
above refer to the existence of certain agreements reached between the United States and some
countries, including Australia, Argentina, Brazil, and the Republic of Korea, in respect of "satisfactory
alternative means" to address the threatened impairment of US national security.
2.45. With regard to the Republic of Korea, Presidential Proclamation 9740 of 30 April 2018 states
that:
The United States has successfully concluded discussions with the Republic of Korea on
satisfactory alternative means to address the threatened impairment to our national
security posed by steel articles impor ts from the Republic of Korea. The United States
and South Korea have agreed on a range of measures, including measures to reduce
excess steel production and excess steel capacity, and measures that will contribute to
increased capacity utilization in the United States, including a quota that restricts the
quantity of steel articles imported into the United States from South Korea.189
2.46. With regard to Argentina, Australia, and Brazil, this same Proclamation states that "[t]he
United States has agreed in principle with Argentina, Australia, and Brazil on satisfactory alternative
means to address the threatened impairment to our national security posed by steel articles imported
from these countries".190 Presidential Proclamation 9759 of 31 May 2018 further states that "[t]he
United States has agreed on a range of measures with these countries, including measures to reduce
excess steel production and excess steel capacity, measures that will contribute to increased capacity
utilization in the United States, and measures to prevent the transhipment of steel articles and avoid
import surges".191
2.2.1.3 Import quotas
2.47. Presidential Proclamation 9740 of 28 April 2018 describes how the United States and the
Republic of Korea agreed upon a quota on steel imports.192 Part A of the Annex to this Proclamation

182 Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), pp. 11626-11627.
183 Presidential Proclamation 9711, (Exhibit CHE-9 and USA-11), pp. 13361 and 13363.
184 Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13), p. 20685.
185 Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13), p. 20684.
186 Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13), p. 20684.
187 Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15), p. 25858.
188 Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11626.
189 Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13), p. 20683.
190 Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13), p. 20684.
191 Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15), pp. 25857-25858.
192 Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13), p. 20683.

sets out the amendments to US Note 16 of subchapter III of chapter 99 of the Harmonized Tariff
Schedule of the United States (HTSUS) that provide for this quota treatment 193, and Part B of the
Annex to the Proclamation details the annual aggregate limits for the applicable quotas.194
2.48. Presidential Proclamation 9759 of 31 May 2018 introduced quotas on steel products from
Argentina and Brazil.195 The Annex to this Proclamation details the annual aggregate limits for the
applicable quotas.196
2.2.1.4 Product exclusions
2.49. Presidential Proclamation 9705 of 8 March 2018 authorized the US Secretary of Commerce to
provide relief from the additional duties set out therein for any steel article determined not to be
produced in the United States in a sufficient and reasonably available amount or of a satisfactory
quality and also to provide such relief based on specific national security considerations.197
2.50. On 19 March 2018, the US Department of Commerce issued the requirements for submissions
requesting exclusions from the remedies instituted in the Presidential Proclamations adjusting
imports of steel and aluminium into the United States (March Interim Final Rule).198 This document
specifies the requirements and process by which parties in the United States may submit requests
for exclusions from the duties instituted by the US President, including how parties in the
United States may submit objections to exclusion requests. It further identifies the relevant time
periods for submitting such exclusion requests and any objections to those requests, the method for
submitting such requests, and the information that must be included in such requests and
objections.199
2.51. On 11 September 2018, US Department of Commerce issued a document titled "Submissions
of Exclusion Requests and Objections to Submitted Requests for Steel and Aluminum" (September
Interim Final Rule).200 This document introduces revisions to the requirements set out in the March
Interim Final Rule and "changes to the exclusion processes in this rule … informed by both the
comments received in response to the March 19 rule and the Department's experience with
managing the exclusion process". 201 According to this document, the modifications were aimed at
improving transparency, effectiveness, and fairness of the product exclusion process, including by
adding a rebuttal and surrebuttal process.202
2.52. Presidential Proclamation 9777 of 29 August 2018 authorized the US Secretary of Commerce
to provide relief from quantitative limitations on steel articles adopted pursuant to Section 232,
including those set forth in Presidential Proclamations 9740 and 9759, on the same basis as the
Secretary is authorized to provide relief from the duty established in Presidential Proclamation
9705.203
2.2.2 The "import adjustment measure" on aluminium products
2.2.2.1 Additional import duties
2.53. Pursuant to Presidential Proclamation 9704 of 8 March 2018, all imports of aluminium articles
as specified in the Proclamation shall be subject to an additional 10% ad valorem duty. According

193 Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13), p. 20685.
194 Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13), pp. 20697-20705.
195 Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15), pp. 25857-25858.
196 Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15), p. 25861.
197 Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11627. Presidential Proclamation
9711 of 22 March 2018 amended Presidential Proclamation 9705 of 8 March 2018 by introducing the following
language: "Such relief may be provided to directly affected parties on a party-by-party basis taking into
account the regional availability of particular articles, the ability to transport articles within the United States,
and any other factors as the Secretary deems appropriate". (Presidential Proclamation 9711, (Exhibit CHE-9
and USA-11), p. 13364).
198 March Interim Final Rule, (Exhibit CHE-20 and USA-20), pp. 12106-12112.
199 March Interim Final Rule, (Exhibit CHE-20 and USA-20), p. 12110.
200 September Interim Final Rule, (Exhibit CHE-22 and USA-21), pp. 46026-46065.
201 September Interim Final Rule, (Exhibit CHE-22 and USA-21), p. 46027.
202 September Interim Final Rule, (Exhibit CHE-22 and USA-21), p. 46027.
203 Presidential Proclamation 9777, (Exhibit CHE-23 and USA-18), p. 45026.

to this Proclamation, this rate of duty is in addition to any other duties, fees, exactions, and charges
applicable to such imported aluminium articles.204
2.2.2.2 Country exemptions
2.54. Presidential Proclamation 9704 of 8 March 2018 sets out that the additional 10% ad valorem
duty on imports of aluminium shall not be applied to imports from Canada and Mexico.205
2.55. Subsequently, Presidential Proclamation 9710 of 22 March 2018 amended Presidential
Proclamation 9704 and introduced exemptions for Australia, Argentina, the Republic of Korea, Brazil,
and the member countries of the European Union, in addition to those already granted to Canada
and Mexico, until 1 May 2018.206
2.56. Presidential Proclamation 9739 of 30 April 2018 introduced further modifications by ( a)
extending the exemptions granted to Canada, Mexico, and the European Union until 1 June 2018207;
(b) extending the exemption for Argentina, Australia, and Brazil until an unspecified date 208; and
(c) ending the exemption granted to the Republic of Korea.209
2.57. Presidential Proclamation 9758 of 31 May 2018 further extended the exemptions from the
additional import duties granted to Argentina and Australia until an unspecified date .210 This
Proclamation did not extend the exemptions for Brazil, Canada, Mexico, and the European Union.211
2.58. Presidential Proclamation 970 4 welcomed any country with which the United States has a
security relationship to discuss alternative ways to address the threatened impairment of US national
security caused by imports from that country. 212 Several of the Presidential Proclamations set out
above refer to the existence of certain agreements reached between the United States and some
countries, including Australia, Argentina, and Brazil, in respect of "satisfactory alternative means"
to address the threatened impairment of US national security.
2.59. With respect to Argentina, Australia, and Brazil, Presidential Proclamation 9739 o f
30 April 2018 states that:
The United States has agreed in principle with Argentina, Australia, and Brazil on
satisfactory alternative means to address the threatened impairment to our national
security posed by aluminum articles imported from these countries. I have determined
that the necessary and appropriate means to address the threat to national security
posed by imports of aluminum articles from Argentina, Australia, and Brazil is to extend
the temporary exemption of these countries from the tariff proclaimed in Proclamation
9704, in order to finalize the details of these satisfactory alternative means to address
the threatened impairment to our national security posed by aluminum articles imported
from these countries.213
2.60. Presidential Proclamation 9758 of 31 May 2018 also states that the United States agreed on
a range of measures with Argentina and Australia, including measures to reduce excess alumin ium
production and excess aluminium capacity.214

204 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11621.
205 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), pp. 11620-11621.
206 Presidential Proclamation 9710, (Exhibit CHE-14 and USA-12), p. 13357.
207 Presidential Proclamation 9739, (Exhibit CHE-15 and USA-14), p. 20678.
208 Presidential Proclamation 9739, (Exhibit CHE-15 and USA-14), pp. 20677-20678.
209 Presidential Proclamation 9739, (Exhibit CHE-15 and USA-14), pp. 20678-20679.
210 Presidential Proclamation 9758, (Exhibit CHE-16 and USA-16), pp. 25849-25850.
211 Presidential Proclamation 9758, (Exhibit CHE-16 and USA-16), p. 25850.
212 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11620.
213 Presidential Proclamation 9739, (Exhibit CHE-15 and USA-14), pp. 20677-20678.
214 Presidential Proclamation 9758, (Exhibit CHE-16 and USA-16), pp. 25849-25850.

2.2.2.3 Import quotas
2.61. Presidential Proclamation 9758 of 31 May 2018 introduced quotas for aluminium products
from Argentina. 215 The Annex to this Proclamation details the annual aggregate limits for the
applicable quotas.216
2.2.2.4 Product exclusions
2.62. Presidential Proclamation 9704 of 8 March 2018 authorized the US Secretary of Commerce to
provide relief from the additional duties set out therein for any aluminium article determined not to
be produced in the United States in a sufficient and reasonably available amount or of a satisfactory
quality and also to provide such relief based on specific national security considerations.217
2.63. On 19 March 2018, the US Department of Commerce issued the requirements for submissions
requesting exclusions from the remedies instituted in the Presidential Proclamations adjusting
imports of steel and aluminium into the United States.218 This document specifies the requirements
and process by which parties in the United States may submit requests for exclusions from the duties
instituted by the US President, including how parties in the United States may submit objections to
exclusion req uests. It further identifies the relevant time periods for submitting such exclusion
requests and any objections to those requests, the method for submitting such requests, and the
information that must be included in such requests and objections.219
2.64. On 11 September 2018, US Department of Commerce issued a document titled "Submissions
of Exclusion Requests and Objections to Submitted Requests for Steel and Aluminum". 220 This
document introduces revisions to the requirements set out in the March Interim Final Rule and
"changes to the exclusion processes in this rule … informed by both the comments received in
response to the March 19 rule and the Department's experience with managing the exclusion
process".221 According to this document, the modifications were a imed at improving transparency,
effectiveness, and fairness of the product exclusion process , including by adding a rebuttal and
surrebuttal process.222
2.65. Presidential Proclamation 9776 of 29 August 2018 authorized the US Secretary of Commerce
to provide relief from quantitative limitations on aluminium articles adopted pursuant to Section 232,
including those set forth in Presidential Proclamation 9758, on the same basis as the Secretary is
authorized to provide relief from the duty established in Presidential Proclamation 9704.223
2.2.3 Section 232 as "repeatedly" interpreted
2.66. Switzerland also challenges Section 232 as repeatedly interpreted by US authorities.
According to Switzerland, this measure provides for the imposition of measures that restrict imports
from other WTO Members in order to shield domestic production in the United States from
competition with foreign products on the grounds of an alleged threat to its national security.224
Switzerland clarifies that by challenging Section 232 as repeatedly interpreted, it is not challenging
the legal act itself, i.e. Section 232, but rather the interpretation of that act by US authorities.225

215 Presidential Proclamation 9758, (Exhibit CHE-16 and USA-16), pp. 25850-25851.
216 Presidential Proclamation 9758, (Exhibit CHE-16 and USA-16), pp. 25853-25855.
217 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11621. Presidential Proclamation
9710 of 22 March 2018 amended Presidential Proclamation 9704 of 8 March 2018 by introducing the following
language: "Such relief may be provided to directly affected parties on a party-by-party basis taking into
account the regional availability of particular articles, the ability to transport articles within the United States,
and any other factors as the Secretary deems appropriate". (Presidential Proclamation 9710, (Exhibit CHE-14
and USA-12), p. 13358).
218 March Interim Final Rule, (Exhibit CHE-20 and USA-20), pp. 12106-12112.
219 March Interim Final Rule, (Exhibit CHE-20 and USA-20), p. 12110.
220 September Interim Final Rule, (Exhibit CHE-22 and USA-21), pp. 46026-46065.
221 September Interim Final Rule, (Exhibit CHE-22 and USA-21), p. 46027.
222 September Interim Final Rule, (Exhibit CHE-22 and USA-21), p. 46027.
223 Presidential Proclamation 9776, (Exhibit CHE-24 and USA-19), p. 45020.
224 Switzerland's first written submission, para. 555.
225 Switzerland's first written submission, para. 556.

2.67. Switzerland considers that this interpretation can be found226 in: (a) the Steel and Aluminium
investigations and Reports227; (b) the decision of the US President pursuant to Section 232(c)
following the Steel and Aluminium Reports, where the US President concurred with the findings of
the US Secretary of Commerce and referred to import adjustment measures as a relief for domestic
steel and aluminium industries228; (c) a number of statements by US authorities and officials229; and
(d) the US investigation under Section 232 on imports of automobiles, including cars, SUVs, vans
and light trucks, and automotive Parts (the 2018 Autos Investigation) as well as the information
relating to the investigation concerning imports of automobiles.230
2.2.4 Ongoing use of Section 232
2.68. In the alternative, Switzerland challenges the ongoing use of Section 232 by U nited States
authorities so as to afford protection to d omestic production by restricting imports from other
WTO Members on the grounds of an alleged threat to its national security.231 Switzerland argues
that through this description of the measure at issue, Switzerland is referring to the "action" of
United States authorities "using" Section 232 "so as to afford protection to the domestic production
by restricting imports from other WTO members". Switzerland notes that by describing that use as
"ongoing", it refers to a "repeated" use that is "likely to continue in the future".232
2.69. Switzerland considers that the existence of this measure is evidenced by : (a) the fact that
Section 232 has been used by US authorities since 2017 in order to protect domestic industry from
competition with imported products under the disguise of protecting national security233; (b) the fact
that the use of Section 232 is repeated and likely to continue in future investigations 234; (c) US
authorities' position in the 2018 Autos Investigation235; (d) statements by US authorities and officials
in the context of the 2018 Autos Investigation 236; (e) the ongoing investigation into imports of
titanium sponge237; and (f) the fact that the ongoing use of Section 232 will likely continue because
it is likely to survive any challenge before US courts.238
2.3 Measures amended, modified, or replaced after the establishment of the Panel
2.70. In its responses to questions from the Panel , Switzerland refers to certain factual and legal
developments of the measures at issue that occurred after Switzerland's request for the
establishment of the Panel .239 Switzerland requests the Panel to consider within its terms of
reference the following amended, modified, or replaced measures240:
a. Changes to the additional import duty for steel products applicable to imports from Türkiye
from 50% ad valorem to 25% ad valorem241;
b. Exclusion of imports of steel and aluminium products from Canada and Mexico from the
additional import duties242;

226 Switzerland's first written submission, para. 558.
227 Switzerland's first written submission, paras. 559-560.
228 Switzerland's first written submission, para. 561.
229 Switzerland's first written submission, para. 562.
230 Switzerland's first written submission, para. 564; Switzerland's opening statement at the first
231 Switzerland's first written submission, para. 566.
232 Switzerland's first written submission, para. 569.
233 Switzerland's first written submission, para. 571.
234 Switzerland's first written submission, para. 572.
235 Switzerland's first written submission, para. 574.
236 Switzerland's first written submission, paras. 575-576.
237 Switzerland's opening statement at the first meeting of the Panel, para. 126.
238 Switzerland's first written submission, para. 577.
239 Switzerland's response to Panel question No. 86.
240 Switzerland's response to Panel question No. 86.
241 Presidential Proclamation 9886, (Exhibit CHE-77 and USA-230).
242 presidential Proclamation 9894, (Exhibit CHE-73 and USA-233); Presidential Proclamation 9893,
(Exhibit CHE-74 and USA-232).

c. Additional import duties on the derivatives of steel and aluminium products243;
d. Re-imposition of the 10% additional duties on imports of non -alloyed unwrought
aluminium articles from Canada244; and
e. Changes to import quotas agreed between the United States and Brazil.245
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. In its panel request, Switzerland requests that the Panel find that the measures listed in its
request are inconsistent with the United States' obligations under the following provisions of the
covered agreements246:
a. Article I:1 of the GATT 1994, because, by applying selectively the additional import duties
on certain steel and aluminium products originatin g in different Members, including by
providing exemptions or applying alternative means to certain countries, the United States
fails, with respect to customs duties and charges of any kind imposed on or in connection
with importation and with respect to a ll rules and formalities in connection with
importation, to accord immediately and unconditionally any advantage, favour, privilege
or immunity granted to products originating in other countries to like products originating
in Switzerland;
b. Article II:1(a) and (b) of the GATT 1994, because, through the measures at issue, the
United States fails to accord to the commerce of most other WTO Members, including
Switzerland, treatment no less favourable than that provided for in the appropriate part
of the United States' Schedule of Concessions. The United States also fails to exempt the
products at issue from most WTO Members, including Switzerland, from ordinary customs
duties in excess of those set forth and provided for in the United States' Schedule of
Concessions and from all other duties or charges in excess of those imposed on the date
of the GATT 1994 or those directly and mandatorily required to be imposed thereafter by
legislation in force in the United States on that date;
c. Article X:3(a) of the GATT 1994, because the United States has failed and fails to
administer its laws, regulations, decisions and rulings in relation to the measures at issue
in a uniform, impartial and reasonable manner;
d. Article XI:1 of the GATT 1994, because, through the measures at issue, the United States
has instituted restrictions other than duties, taxes or ot her charges, made effective
through quotas, on the importation of products of the territory of other Members;
e. Article XIX:1(a) of the GATT 1994, because the United States has suspended tariff
concessions and other obligations without the products at issue being imported into the
territory of the United States in such increased quantities and under such conditions as to
cause or to threaten serious injury to domestic producers in the United States of like or
directly competitive products, as a result of unforeseen developments and of the effect of
the obligations incurred under the GATT 1994;
f. Article 2.1 of the Agreement on Safeguards, because the United States applies safeguard
measures to the products at issue without first having determined, pursuant to t he
subsequent provisions of the Agreement on Safeguards, that such products are being
imported into its territory in such increased quantities, absolute or relative to domestic
production, and under such conditions as to cause or threaten to cause serious injury to
the domestic industry that produces like or directly competitive products;

243 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225).
244 Presidential Proclamation 10060, (Exhibit CHE-75 and USA-234).
245 Presidential Proclamation 10064, (Exhibit CHE-76 and USA-235).
246 Switzerland's panel request, pp. 3-6.

g. Article 2.2 of the Agreement on Safeguards, because the United States does not apply the
safeguard measures to imported products irrespective of their source;
h. Article 3.1 of the Agreement on Safeguards, because the United States applies safeguard
measures to the products in question without having properly conducted an investigation
and published a report that sets forth findings and reasoned conclusions on all pertinent
issues of fact and law;
i. Article 4.1 of the Agreement on Safeguards, because the United States has not properly
determined that there is serious injury, or threat thereof, to a domestic industry as
provided for in that provision;
j. Article 4.2 of the Agreem ent on Safeguards, because the United States has failed to
properly evaluate all relevant factors having a bearing on the situation of the domestic
industry; has failed to demonstrate the existence of a causal link between increased
imports and serious injury or the threat thereof; has failed to ensure that the injury caused
by factors other than increased imports was not attributed to increased imports; and has
failed to publish a detailed analysis and demonstration of its conclusions;
k. Article 5.1 of the A greement on Safeguards, because the United States is applying
safeguard measures beyond the extent necessary to prevent or remedy serious injury and
to facilitate adjustment;
l. Article 7 of the Agreement on Safeguards, because the United States is applying safeguard
measures without making provision for their application only for the period necessary to
prevent or remedy serious injury and to facilitate adjustment, without limitation to four
years, and without making provision for progressive liberalization at regular intervals;
m. Article 11.1(a) of the Agreement on Safeguards, because the United States has taken
emergency action on imports of particular products as set forth in Article XIX of the
GATT 1994, without such action conforming with the provisions of Article XIX applied in
accordance with the Agreement on Safeguards;
n. Article 11.1(b) of the Agreement on Safeguards, because the United States has sought,
taken or maintained voluntary export restraints, orderly marketing arrangements or any
other similar measures on the export or the import side; and
o. Articles 12.1, 12.2 and 12.3 of the Agreement on Safeguards and Article XIX:2 of the
GATT 1994, because the United States has failed to comply with any of the notification
and consultation obligations set out in these provisions.
3.2. With respect to Section 232 as repeatedly interpreted by the United States' authorities and the
ongoing use of Section 232, Switzerland considers that the measures violate:
a. Articles I:1, II:1(a) and (b) and XI:1 of the GATT 1994 since the measure at issue provides
for the imposition of import restrictions in a manner inconsistent with the disciplines set
out in those provisions;
b. Article XIX:1 of the GATT 1994 and Articles 2.1, 4.1 and 4.2 of the Agreement on
Safeguards since the measure at issue provides for the imposition of restrictions on
imports of products in order to protect the domestic industry, without examining whether
the products at issue are being imported into the territory of the United States in such
increased quantities and under such conditions as to cause or threaten to cause serious
injury to the US domestic producers of like or directly competitive products, as a result of
unforeseen developments and of the effect of the obligations incurred under the
GATT 1994;
c. Article 3.1 of the Agreement on Safeguards since the measure at issue provides for the
imposition of safeguard measures without conducting an inve stigation and publishing a
report that sets forth findings and reasoned conclusions on all pertinent issues of fact and
law;

d. Articles 5.1 and 7 of the Agreement on Safeguards since the measure at issue does not
provide for the imposition of safeguard measures only to the extent and for such time as
may be necessary to prevent or remedy serious injury and to facilitate adjustment and
since it fails to provide that those measures cannot exceed four years and that they shall
be progressively liberalized at regular intervals;
e. Articles 12.1, 12.2 and 12.3 of the Agreement on Safeguards and Article XIX:2 of the
GATT 1994 since the measure at issue does not provide for the notifications required under
Articles 12.1 and 12.2 of the Agreement on Safeguards and does n ot provide for an
opportunity for prior consultations as required under Article 12.3 of the Agreement on
Safeguards and Article XIX:2 of the GATT 1994;
f. Article 11.1(a) of the Agreement on Safeguards since the measure at issue constitutes a
mechanism of "emergency action" as set forth in Article XIX of the GATT 1994 that does
not conform with the provisions of that Article and is not applied in accordance with the
Agreement on Safeguards; and
g. Article XVI:4 of the WTO Agreement since, through the measure at issue, the
United States fails to ensure the conformity of its laws, regulations and administrative
procedures with its obligations under the WTO Agreement.
3.3. The United States requests that the Panel find that the United States has invoked its essential
security interests under Article XXI(b) of the GATT 1994 and so report to the DSB.247
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 23 of the Working Procedures adopted by the Panel (see Annex B).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of certain third parties are reflected in their executive summaries, provided in
accordance with paragraph 26 of the Working Procedures adopted by the Panel (see Annex C).
6 INTERIM REVIEW
6.1. On 29 June 2022, the Panel issued its Interim Report to the parties. On 3 August 2022, the
parties submitted written requests for review of the Interim Report. Neither party requested an
interim review meeting. On 31 August 2022, the parties submitted comments on each other's
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
response to the requests made at the interim review stage, including certain requests by the parties
discussed in greater detail below.
6.3. The Panel notes that the parties' requests for review of the Interim Report include requests to
provide more detailed summaries of their arguments. Throughout the Report, the Panel has
summarized the parties' arguments in order to facilita te understanding of the contested issues
addressed in the Panel's reasoning and findings. The Panel has not comprehensively reproduced
every aspect of the parties' arguments, which are more fully reflected in the executive summaries
annexed to this Report. Rather, the Panel has summarized the relevant arguments in the context of
its own objective assessment of the matter before it, having regard for its mandate and discretion
to make such findings as will assist the DSB in making the recommendations or rulings provided for
in the relevant covered agreements. In this regard, it is generally within the discretion of a panel to
decide which arguments or evidence it addresses or relies on in reaching its findings. 248 Subject to
the explanations and modifications described below, the Panel considers that the parties' arguments

247 United States' first written submission, para. 187.
248 See e.g. Appellate Body Reports, Ukraine – Ammonium Nitrate, para. 6.42; US – COOL, para. 299;

are adequately reflected and addressed in this Report, including the annexes thereto, to fulfil the
requirements of the Panel's mandate under the DSU.249
6.4. In addition, the Panel has made typographical and other editorial modifications in the Report,
including in response to the parties' requests. The discussion below refers to the numbering of
sections, paragraphs, and footnotes in the Final Report.
6.1 Article XIX of the GATT 1994 and the Agreement on Safeguards
6.5. The United States requests the Panel to include in paragraph 7.95 "additional support" for its
conclusions regarding the terms "pursuant to" in Article 11.1(c) of the Agreement on Safeguards. In
particular, the United States argues that the Panel's conclusions in this paragraph are supported by
the ordinary meaning of the terms "sought, taken or maintained" in Article 11.1(c). Switzerland
requests that the Panel reject the United States' suggestion as it reflects the United States'
arguments relating to the meaning of the terms "sought, taken or maintained" and should not be
included in a paragraph setting out the Panel's interpretation.
6.6. In section 7.8.2 of its Report, the Panel has examined the terms "pursuant to" in Article 11.1(c)
considering their ordinary meaning and having regard for the relevant context provided by terms
used elsewhere in the Agreement on Safeguards, including those that appear to convey a
relationship of consistency with the requirements of another pro vision of the covered agreements.
The Panel has further considered the use of terms in the three authentic language versions of the
Agreement on Safeguards in accordance with the customary rules of interpretation of public
international law. The Panel has also found support for its conclusions in the object and purpose of
the Agreement on Safeguards, as expressed in its preamble, and the negotiating history of
Article 11.1(c). Accordingly, the Panel does not consider it necessary to additionally address the
United States' arguments concerning the terms "sought, taken or maintained" in Article 11.1(c) to
determine the meaning of "pursuant to" in that provision.
6.7. The Panel has taken note of the United States' arguments concerning the meaning of "sought"
in Art icle 11.1(c), which are related to the United States' contention that formal notification of
safeguard measures to the WTO is a "condition precedent" to the applicability of safeguard
disciplines. As part of its objective assessment of the legal characteri zation of the measures under
Article 11.1(c), the Panel has taken into account the manner in which the measures at issue were
notified to relevant WTO bodies or committees. Recalling the nature of the Panel's inquiry on the
applicability of safeguard disci plines to the measures at issue, the Panel does not consider it
necessary to address in further detail the United States' arguments on the meaning of "sought" in
Article 11.1(c). In this respect, the Panel additionally recalls its mandate and discretion to make
such findings as will assist the DSB in making the rulings and recommendations provided for in the
relevant covered agreements.
6.8. The United States requests the Panel to revise paragraph 7.102 to accurately reflect its
argument that "a key condition precedent to the exercise of [the right to apply a safeguard measure]
is that the Member has invoked Article XIX as the legal basis for its measure by providing notice in
writing and affording affected Members an opportunity to consult." According to the Uni ted States,
by suggesting "the United States' [contends] that, based on Article XIX:2 of the GATT 1994, formal
notification of safeguard measures to the WTO is a 'condition precedent' to the applicability of
safeguard disciplines", the Panel misstates the United States' position. Switzerland considers that
this paragraph accurately reflects the United States' position regarding the "condition precedent" for
the application of Article XIX of the GATT 1994.
6.9. The Panel notes that, in its submissions, the United States refers variously to "notice",
"invocation", and "invocation through notice" under Article XIX:2 of the GATT 1994 as a "condition
precedent" for applicability of safeguard disciplines. The Panel has accordingly retained its summary
of the United States' arguments in this respect and revised the corresponding footnote to clarify the
various terms used by the United States in its submissions to the Panel.

249 See section 7.1 below.

6.2 Article XXI(b) of the GATT 1994
6.10. The United States requests an addition to paragraph 7.124 of certain arguments it puts
forward on the interpretation of Article XXI(b), including its arguments on which phrase in
Article XXI(b) is modified by subparagraphs (i) and (ii) and the reconciliation of different language
versions of Article XXI(b). The United States also requests that paragraph 7.125 include a more
complete description of the complainant's arguments on the interpretation of Article XXI(b). In
addition, the United States does not object to Switzerland's request for further r eflection of its
arguments in paragraph 7.125 and, should the Panel accept Switzerland's comment, requests that
the Panel set out Switzerland's interpretation of Article XXI on what is qualified by the term
"consider". Switzerland suggests revisions to par agraph 7.125 to reflect its arguments on the
interpretation of Article XXI(b) more accurately. In response to the United States' requests,
Switzerland considers that it is not necessary to add the additional explanation as suggested by the
United States. S witzerland considers that this paragraph accurately and sufficiently reflects the
United States' arguments and the additional points raised by the United States are already covered
in the Panel Report.
6.11. Recalling its approach to reflecting the parties' arguments on the issues raised in this dispute,
the Panel declines to expand the summaries of the parties' arguments in these paragraphs. In
response to the United States' request, the Panel further notes that modification s to the Interim
Report discussed below include expanded reference to arguments that the United States requested
to be reproduced in these paragraphs. The Panel has also expanded the footnote citations to
Switzerland's submissions with its arguments on the interpretation of Article XXI(b).
6.12. The United States requests that the Panel delete the footnote to paragraph 7.130 and
instead address its substantive content in the body of the Report, particularly concerning the
United States' arguments on the differences in the French and Spanish versions of Article XXI(b)
and the reconciliation of the three language versions of the text. In the United States' view, the
Panel does not engage with these arguments and "misstates them in a footnote reference". The
United States requests further engagement with these arguments and, specifically, that the Panel
"explain why it is incorrect to read the sentence [in Article XXI(b)] as consisting of three alternatives"
for each subparagraph. Switzerland proposes additions to this paragraph to reflec t its arguments
and, in response to the United States' requests, does not object to moving the explanation in this
footnote to the body of the text. However, Switzerland considers that given that the Panel addressed
the meaning of the terms "which it consi ders" and the arguments made by the United States, it is
not necessary to include any additional explanation in the paragraph, as suggested by the
United States.
6.13. The Panel acknowledges the United States' indication in its request for interim review that it
"agrees (in the interpretation that best reconciles the three language versions) with the Panel that
each of the paragraphs 'describe[s] the action referred to in Article XXI(b)', but mediated through
the relative clause 'which it considers'." The Panel h as accordingly retained the statement of its
understanding that the parties agree that the subparagraphs qualify and relate to the "action" in
Article XXI(b), notwithstanding some disagreement as to the precise basis for this conclusion. The
Panel has also expanded the summary of the United States' arguments regarding the reconciliation
of texts in the three authentic language versions and its contention that, under this reconciled
interpretation, the terms of the provision still form a "single relative cla use" that begins with the
phrase "which it considers" and contains the entirety of each subparagraph.
6.14. Regarding the United States' request for further elaboration in the body of the Report, the
Panel briefly reviews certain points of its analysis of the Un ited States' arguments to clarify the
overall context in which the footnote appears in the Panel's reasoning regarding the interpretation
of Article XXI(b) in this dispute. In section 7.9.2, the Panel focuses specifically on the United States'
argument that "which it considers" qualifies the subparagraphs of Article XXI(b) within a "single
relative clause" that entirely reserves the subparagraphs to the judgment of the invoking Member.
In accordance with Article 3.2 of the DSU, the Panel's textual analysis addresses the function and
ordinary meaning of the subparagraphs as describing certain kinds of permitted "action", including
reference to the structure and punctuation of Article XXI of the GATT 1994. In this regard, the Panel
concludes that the paragraphs and subparagraphs form alternative endings to a complete sentence
under Article XXI, and the opening terms of each of the subparagraphs ("relating to" and "taken")
qualify the "action" in paragraph (b). Moreover, the subparagraphs are exhaustive in estab lishing
the circumstances in which a Member may take the "action" under Article XXI(b).

6.15. Following these textual conclusions, the Panel addresses grammatical aspects of the parties'
arguments as well as other aspects of textual interpretation and ordinary meaning, particularly the
principle of effective treaty interpretation and the exhaustive types of "action" specified in the
subparagraphs of Article XXI(b). The Panel additionally addresses relevant context in Articles XXII
and XXIII of the GATT 1994 and the DSU, the object and purpose of maintaining the balance of
rights and obligations under the covered agreements, and non -treaty materials submitted by the
parties relating to the interpretation of Article XXI of the DSU. Based on the entirety of this analysis,
the Panel concludes that the terms "which it considers" in Article XXI(b) do not qualify the
subparagraphs to render them "self-judging" or "non-justiciable" as argued by the United States.
6.16. In this manner, the Panel has addressed multiple aspects of the interpretation of
Article XXI(b) with specific reference to the United States' argument regarding a "single relative
clause" purportedly encompassing the subparagraphs of that provision. As one element of this
analysis, the Panel has noted the concordance of plural and feminine terms in the French and Spanish
versions of Article XXI(b) to support the qualification of the term "action" by the subparagraphs. In
other parts of its assessment, the Panel has also examined the ordinary meaning of actions "relating
to" specified "materials" and "traffic" and to actions "taken in time of" specified circumstances. The
Panel has further accounted for the structure of Article XXI(b) and the textual separation of the
subparagraphs into an enumerated list, which cor responds to the role of the subparagraphs as
alternative sentence endings that collectively and exhaustively delimit the scope of Article XXI(b).
6.17. The Panel recalls its mandate and discretion to make such findings as will assist the DSB in
making the recom mendations or rulings provided for in the relevant covered agreements. In
assessing the contested issues of interpretation regarding Article XXI(b) and the review of its
invocation by a Member in dispute settlement proceedings, the Panel did not find it ne cessary to
address in greater detail the parties' arguments on the reconciliation of the three authentic texts of
the provision. In addition, the United States does not explain the relevance of these arguments to
the Panel's overall analysis and conclusions on whether a "single relative clause" beginning with the
phrase "which it considers" renders Article XXI(b) "self-judging" or "non -justiciable" in the sense
argued by the United States.250 To the extent the United States' request concerns the weight
assigned to its arguments and the merits of the Panel's analysis, the Panel notes that interim review
is not an appropriate stage for relitigating arguments already submitted by the parties and addressed
to the extent necessary in the Panel's findings. In these circumstances, the Panel has modified this
footnote to expand the summary of the parties' arguments and to clarify that the Panel does not
consider it necessary for the purposes of this dispute to address in further detail the parties'
arguments on the re conciliation of the three authentic texts in relation to the contested issues of
interpretation under of Article XXI(b) and its application to the measures at issue in this dispute.
6.18. The United States requests that the Panel introduce certain modifications to paragraphs
7.137 and 7.138 in order to more accurately reflect its arguments on English grammar rules in the
context of the interpretation of Article XXI(b). Switzerland does not comment on the United States'
request.
6.19. The Panel has made the requested modification in paragraph 7.137 to clarify the context
regarding subparagraphs (i) and (ii) of Article XXI(b) in which the United States referred to the rules
of English grammar. The Panel declines th e additional suggested text in paragraph 7.138 in which
the Panel is addressing grammatical considerations as part of its overall assessment of the contested
issues of interpretation under Article XXI(b) in this dispute. In particular, the Panel's analysis in
these paragraphs notes the absence of a definitive rule of grammar supporting the United States'
construction of the provision as containing a "single relative clause" that wholly reserves the
conditions and circumstances of the subparagraphs to the ju dgment of the invoking Member. The
Panel has modified these paragraphs to clarify that, with respect to the interpretation of
Article XXI(b), the qualification of the noun "action" in paragraph (b) by the subparagraphs is not
solely determined by rigid app lication of grammar but follows from the ordinary meaning of these
terms, as elaborated in the remainder of the Panel's analysis.
6.20. The United States requests that the Panel expand the summary of arguments in paragraph
7.151 on the interpretation of the terms "emergency in international relations" in Article XXI(b)(iii),

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

and that the Panel address these arguments in paragraph 7.155 setting out the Panel's
interpretation of these terms. Switzerland does not comment on the United States' request.
6.21. As noted, the Panel has not comprehensively reproduced every aspect of the parties'
arguments but rather has referred to the parties' arguments in order to facilitate understanding of
the contested issues addressed in the Panel's reasoning and findings. In this connect ion, the Panel
has focused on the gravity or severity of an "emergency in international relations" within the
meaning of Article XXI(b)(iii), particularly regarding the impact on international relations of
situations falling under that provision. Moreover, the Panel has interpreted the terms "emergency in
international relations" in accordance with Article 3.2 of the DSU and its mandate to make such
findings as will assist the DSB in making the recommendations or rulings provided for in the covered
agreements. In section 7.9.3, the Panel has addressed the interpretation of Article XXI(b)(iii) to the
extent necessary to assess whether, based on the evidence and arguments submitted by the parties,
the measures at issue were "taken in time of war or other emergency in international relations". On
the basis of the foregoing, the Panel does not consider it necessary to further address the
United States' arguments in this regard.
6.3 Appendices
6.22. The United States requests that the Panel incorporate the analysis and conclusions contained
in Appendices A and B into the main body of the Report. The United States considers the materials
described in these appendices to be integral to the Panel's analysis and notes that they were a
subject of disagreement and argument by the parties. Switzerland considers that there is no need
to incorporate the text of Appendices A and B in the Report and that the reference to the appendices
in the relevant paragraphs of the Report is sufficient. Switzerland suggests that the Panel may,
however, wish to specify which appendix it is referring to in the relevant paragraphs.
6.23. The Panel recalls its conclusion in Appendix A that its review of the negotiating history of
Article 11.1(c) of the Agreement on Safeguards confirms its interpretation of tha t provision. The
Panel has also concluded that the materials examined in Appendix B support the general conclusion
that the terms of Article XXI(b) of the GATT 1994 establish a right to take action for the protection
of essential security interests in the conditions and circumstances described in the three
subparagraphs. The appendices set out in greater detail the specific materials examined, the
arguments advanced by the parties, and the bases for the Panel's conclusions. The Panel therefore
declines the United States' request, and the Panel has modified the references to the appendices in
the Report to specify which appendix is being referred to in the Panel's analysis.
6.24. In response to requests by Switzerland, the Panel has modified paragraphs 2.2, 2.11, 2.14,
2.23, 7.60, and 8.40 and footnotes 6, 47, 128, 129, 230, 236, and 300 of Appendix B to
more accurately reflect Switzerland's arguments.
7 FINDINGS
7.1 Mandate under the DSU
7.1. The Panel was established by the DSB in accordance with Article 6 of the DSU with standard
terms of reference, as provided in Article 7.1 of the DSU, "[t]o examine, in the light of the relevant
provisions of the covered agreements cited by the parties to the dispute, the matter referred to the
DSB" in the complainant's panel request and "to make such findings as will assist the DSB in making
the recommendations or in giving the rulings provided for in those agreements ". Pursuant to
Article 7.2 of the DSU, the Panel is required to "address the relevant provisions in any covered
agreement or agreements cited by the parties to the dispute".
7.2. The matter referred to the DSB in the complainant's panel request comprises claims under the
GATT 1994 and the Agreement on Safeguards with respect to the measures at issue.251 In response
to these claims, the United States requests that the Panel find that the United States has invoked
its essential security interests under Article XXI(b) of the GATT 1994 and so report to t he DSB.252
Although the United States acknowledges that "the Panel has jurisdiction over this dispute, because

251 See section 3 above.
252 United States' first written submission, para. 187.

the DSB has established the Panel to examine the matter set out in the panel request"253, it argues
that its " invocation of Article XXI is a non-justiciable issue as Article XXI makes its invocation
self-judging by the Member taking the security action ".254 In the United States' view, "[i]t follows
that the Panel may not make findings on the complainant's claims because they are not appropriate
or suitable for adjudication by the Panel and may not make recommendations because no finding of
WTO-inconsistency can be made."255
7.3. In response to questions from the Panel, t he United States clarifies that "the United States is
not requesting that the Panel refrain from applying the rules and procedures of the DSU" but rather
submits that "[the United States'] approach reflects an outcome consistent with a panel 's terms of
reference from the DSB and function of a panel under the DSU, and a proper interpretation of
Article XXI(b) under the Vienna Convention" on the Law of Treaties (Vienna Convention).256
According to the United States, the Panel's "jurisdiction" conferred by Articles 7.1 and 11 of the DSU
is constrained by "the ordinary meaning of the terms in Article XXI(b)", as interpreted in accordance
with the customary rules of interpretation of public international law. The United States thus clarifies
that its arguments on "justiciability" and the "political" nature of the questions involved rest on the
interpretation of the terms of Article XXI(b) in accordance with the interpretive principles of
Article 3.2 of the DSU and the Panel's terms of reference. 257 As addressed in greater detail below,
the complainant also refers to these interpretive principles and the requirements of the Panel's terms
of reference in contesting the United States' characterization of Article XXI(b) as "non-justiciable".258
7.4. Based on its terms of reference, the Panel's mandate under the DSU is to examine the matter
raised by the complainant in its panel request and to address the United States' invocation of
Article XXI(b) of the GATT 1994. The purpose of this examination is to enable the Panel to make
such findings as will assist the DSB in discharging its responsibilities under the covered agreements.
In fulfilling this mandate, the Panel is mindful of its function and duty under Article 11 of the DSU to
make an objective assessment of the matter before it, including an objective assessment of the facts
of the case and the applicability of and conformity with the relevant covered agreements. The Panel
is further guided by the role of WTO dispute settlement, as recognized in Article 3.2 of the DSU, to
preserve the rights and obligations of Members under the covered agreements, and to clarify the
existing provisions of those agreements in accordance with customary rules of interpretation of
public international law.259
7.5. The Panel observes that the parties affirm these fundamental principles regarding the
assessment of the complainant's claims and the United States' invocation of Article XXI(b) of the
GATT 1994 under the rules and procedures of the DSU. 260 However, the parties dispute the
application of these principles to the matter before the Panel, particularly with respect to the
applicability of Article XIX of the GATT 1994 and the Agreement on Safeguards to the measures at
issue, and the relationship between those disciplines and Article XXI(b) of the GATT 1994. Regarding
the United States' invocation of Article XXI(b), the parties further dispute the extent to which the
terms of this provision reserve discretion to the invoking Member taking action that it considers
necessary for the protection of its essential security interests, as well as the applicability of this

253 United States' first written submission, para. 184.
254 United States' first written submission, para. 186. The United States submits that "'jurisdiction' can
be defined as the extent of power of the Panel under the DSU to exercise its judicial authority or decide a
particular case", while "'justiciability', by contrast, relates to whether a matter is appropriate or suitable for
adjudication by a court, or in this context, whether an issue is subject to findings by the Panel under the DSU."
(Ibid. para. 184).
255 United States' first written submission, para. 186. The United States further argues that "the self-
judging text included in Article XXI" reflects a recognition that "issues of essential security are inherently
political in nature, and there are no legal criteria by which a Member's consideration of its essential security
interests can be objectively determined". (Ibid.).
256 United States' response to Panel question Nos. 26-29.
257 See United States' response to Panel question No. 54 (arguing that "it is not the political nature of
the issues covered under Article XXI(b) that lead to an interpretation that the provision is self-judging" but
rather "[i]t is the text of Article XXI(b) that establishes its self-judging nature"); see also United States'
opening statement at the first meeting of the Panel, paras. 3-4 and 67.
258 See section 7.9 below.
259 See Appellate Body Reports, Japan – Alcoholic Beverages II, para. 31; EC – Computer Equipment,
260 See e.g. United States' response to Panel question No. 25 ("the Panel's function is to objectively
assess the matter before it by interpreting Article XXI(b) in accordance with the customary rules of
interpretation"); Switzerland's response to Panel question No. 26.

provision to the challenged measures based on the arguments and evidence submitted in these
proceedings.
7.6. The Panel is required under the DSU to assess these disputed issues in an objective manner
and to make findings on the basis of that assessment that will assist the DSB in making the
recommendations or rulings provided for in the covered agreements. In furtherance of this mandate,
the Panel will examine the matter within its terms of reference by assessing the applicability of and
conformity with the relevant provisions of the GATT 1994 and the Agreement on Safeguards, based
on the interpretive principles of Article 3.2 of the DSU and the arguments and evidence presented
by the parties. As prescribed by Article 12.7 of the DSU, the Panel will set out its relevant findings
of fact, the applicability of relevant provisions, and the basic rationale behind any findings and
recommendations that it makes.
7.2 Order of analysis
7.7. In considering the appropriate order of analysis of the issues outlined above, the Panel has
discretion to structure its analysis taking into account the specific measures, claims, arguments, and
relevant provisions at issue.261 Having considered the arguments presented by the parties in this
dispute262, the Panel will first address issues concerning its terms of reference and the identification
of the measures at issue. Following this determination of the measures within its terms of reference,
the Panel will examine the complainant's claims that the measures are inconsistent with certain
provisions of the covered agreements.
7.8. In principle, the obligations set forth in the WTO covered agreements apply cumulatively.263 In
this dispute, the parties disagree as to whether the WTO rules on safeguards set forth in Article XIX
of the GATT 1994 and the Agreement on Safeguards apply to the measures at issue , and the
complainant raises other claims under the GATT 1994 which are independent of those contested
issues of applicability . Taking these circumstances into account, along with the operation of the
measures at issue and the manner in which the parties have presented their argument s, the Panel
considers it appropriate to begin its assessment with the claims under Articles I:1, II:1, XI:1, and
X:3 of the GATT 1994.
7.9. The Panel will first assess the consistency of the relevant measures with Article II:1 of the
GATT 1994 and the relevant commitments in the United States' Schedule of Concessions. The Panel
will then assess the claims under Article I:1 of the GATT 1994 concerning most-favoured-nation
treatment. The Panel will next address the claims under Article XI:1 of the GATT 1994 concerning
quantitative restrictions, followed by the claims under Article X:3 of the GATT 1994 concerning the
administration of measures. The Panel will then assess the remainder of the complainant's claims
under Article XIX of the GATT 1994 and the Agreement on Safeguards , including the par ties'
disagreement as to the applicability of this provision and agreement to the measures at issue.
7.10. The Panel will next address the United States' invocation of Article XXI(b) of the GATT 1994
in relation to any measures falling within the Panel's terms of reference found to be inconsistent

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

with provisions of the covered agreements. The Panel will assess the arguments and evidence
submitted by the parties in relation to the measures at issue beginning with the parties'
disagreement as to the meaning of th e terms of Article XXI(b) of the GATT 1994 interpreted in
accordance with Article 3.2 of the DSU and the customary rules of interpretation of public
international law. On the basis of this assessment, the Panel will provide its findings and
recommendations in accordance with the DSU.
7.3 Terms of reference and measures at issue
7.3.1 Introduction
7.11. In this section, t he Panel will examine issues raised by the parties relating to Article 6.2 of
the DSU, which provides in relevant part:
The request for the establishment of a panel shall be made in writing. It shall indicate
whether consultations were held, identify the specific measures at issue and provide a
brief summary of the legal basis of the complaint sufficient to present the problem
clearly.
7.12. The parties have raised a number of issues relating to the requirements of Article 6.2 of the
DSU and the Panel's terms of reference.264 Specifically, Switzerland argues that the Panel's terms of
reference include: (a) the additional import duties imposed on deriv ative steel and aluminium
products and the country-specific exemptions granted from those duties; (b) the exclusion of imports
of steel and aluminium products from Canada and Mexico from the additional import duties; and (c)
changes to the additional import duty applicable to steel products from Türkiye.265 The United States
argues that these measures, which did not exist at the time of the panel request , could not have
been identified in the panel request and therefore are not within the Panel's terms of reference.266
7.13. The Panel will accordingly examine whether it can make findings and recommendations on
the measures described above.
7.3.2 Additional duties on derivative steel and aluminium products and corresponding
country exemptions
7.14. On 24 January 2020, the US President issued Presidential Proclamation 9980 under the
authority granted by Section 232.267 Presidential Proclamation 9980 introduced additional duties of
25% on derivative steel products and 10% on derivative aluminium products with effect from
8 February 2020.268 This Presidential Proclamation also exempted from these duties: (a) derivative
steel products from Australia, Argentina, Brazil, the Republic of Korea, Canada, and Mexico; and (b)
derivative aluminium products from Australia, Argentina, Canada, and Mexico.269

264 In addition to the issues discussed in this section, the parties also dispute whether Switzerland's
panel request adequately identifies the seeking of/conclusions of agreements by the United States with certain
countries with a view to exempt imports from those countries from the additional duties on steel and
aluminium. As the Panel declines to make findings in respect of the claims concerning any alternative
treatment of exempted products, the Panel does not find it necessary to further address whether measures
related to those claims are within its terms of reference. See sections 7.5 and 7.7 below.
265 See section 2.3 above and Switzerland's response to Panel question No. 97. Switzerland also
requests the Panel to include within its terms of reference (i) Presidential Proclamation 10060 of
6 August 2020, which re-imposed the 10% additional duty on imports of non-alloyed unwrought aluminium
articles from Canada and (ii) Presidential Proclamation 10064, which changed the import quotas agreed
between the United States and Brazil. Switzerland identifies challenges under Articles II, X and XI of the
GATT 1994 in respect of these proclamations. In light of the Panel's findings under Articles II, X and XI of the
GATT 1994 and in the circumstances of this dispute, the Panel does not consider it necessary to address
whether these Presidential Proclamations are within its terms of reference. See sections 7.4, 7.6, and 7.7.
266 United States' response to Panel question No. 87.
267 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), pp. 5281 and 5283.
268 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), p. 5283.
269 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), p. 5283.

7.15. Switzerland requests the Panel to include the additional duties and corresponding country
exemptions imposed by Presidential Proclamation 9980 in its terms of reference .270 According to
Switzerland, Presidential Proclamation 9980 simply extends the same additional duties as imposed
by Presidential Proclamations 9704 and 9705 to derivative steel and aluminium articles and thus
amounts to a measure "amending", "complementing" or "extending" the scope of the original
measures.271 Switzerland further argues that Presidential P roclamation 9980 is an
anti-circumvention measure and pursues exactly the same objective as the original import
adjustment measures.272 The United States notes that Presidential Proclamation 9980 wa s issued
more than a year after the establishment of the Panel, and therefore, the duties on derivative
products did not exist at the time of the Panel 's establishment, were not and could not have been
identified in Switzerland's panel request, and fall outside the Panel's terms of reference.273
7.16. The Panel begins by noting that the measures within a panel's terms of reference are generally
those in existence at the time of the establishment of the panel. This does not preclude a panel, in
certain circumstances, from reviewing measures enacted or modified after its establishment, taking
into account the specific terms used in a panel request and in light of the aim of the dispute
settlement mechanism to provide a positive solution to the dispute.274 In assisting the DSB in making
its recommendations, a panel may review measures that come into existence after panel
establishment that bear a close relationship to measures described in the panel request.275 The Panel
will thus assess the relationship between the measures identified in Switzerland's panel request and
the additional duties on derivative products imposed by Presidential Proclamation 9980, including
the corresponding exemptions set out therein.
7.17. In its panel request, Switzerland challenges "the import adjustments on certain steel products
and certain aluminium products" 276, including the "additional import duty of 25% on certain steel
products" and "additional import duty of 10% on certain aluminium products" as well as the
exemptions granted to Argentina, Australia, Brazil and the Republic of Korea .277 According to
Switzerland, these measures have been imposed through a number of documents of the
United States, considered alone or in any combination.278 Among those documents are Presidential
Proclamations 9704 and 9705, and the Steel and Aluminium Reports.279 Switzerland's panel request
further states that it "also covers any additional measures amending, superseding, supplementing,
updating, extending, replacing or implementing the measures referred to above as well as any
exemptions or exclusions applied".280
7.18. The Panel notes that Presidential Proclamation 9980 explicitly refers to the Steel and
Aluminium Reports and earlier Presidential Proclamations 9704 and 9705 on aluminium and steel,
respectively, in setting out its legal basis and justification. In particular, Presidential Proclamation
9980 refers to the direction in Presidential Proclamations 9704 and 9705 to the US Secretary of
Commerce to "inform [the US President] of any circumstances that in the Secretary's opinion might

270 Switzerland's response to Panel question No. 87; see also second written submission, paras. 9 and
11, and response to Panel question No. 97.
271 Switzerland's response to Panel question Nos. 87 and 96.
272 Switzerland's response to Panel question Nos. 87 and 96.
273 United States' response to Panel question No. 87.
274 Articles 3.7 and 11 of the DSU. See also Appellate Body Reports, US – Zeroing (Japan) (Article 21.5
– Japan), paras. 121 and 125; EC – Chicken Cuts, paras. 156-159; and Chile – Price Band System,
paras. 126-144; Panel Reports, US – Ripe Olives from Spain, para. 7.12; US – Washing Machines,
paras. 7.248-7.249; EC – Fasteners (China), para. 7.34; and Colombia – Ports of Entry, paras. 7.52-7.54.
275 See Panel Reports, US – Ripe Olives from Spain, para. 7.14; Russia – Pigs (EU), para. 7.160; US –
Australia – Salmon (Article 21.5 – Canada), para. 7.10, subpara. 27; and Japan – Film, paras. 10.8-10.9.
Similarly, previous panels and Appellate Body reports have considered (a) whether the terms of the panel
request are broad enough to cover amendments to the measures and (b) whether the measures remain in
essence the same as those identified in the panel request. Appellate Body Report, Chile – Price Band System,
paras. 135-139. See also Appellate Body Reports, US – Zeroing (EC) (Article 21.5 – EC), paras. 190-191 and
383-384; EC – Selected Customs Matters, para. 184; EC – Chicken Cuts, paras. 156-161; Panel Reports, US –
Ripe Olives from Spain, para. 7.14; Indonesia – Chicken, paras. 7.84-7.85; and US – Large Civil Aircraft (2nd
complaint) (Article 21.5 – EU), para. 7.524.
276 Switzerland's panel request, p. 2.
277 Switzerland's panel request, pp. 1-2.
278 Switzerland's panel request, p. 2.
279 Switzerland's panel request, pp. 2-3. See also section 2.2 above.
280 Switzerland's panel request, p. 3.

indicate the need for further action under section 232" .281 The US President decided to " adjust the
tariffs imposed by previous proclamations to apply to the derivatives of aluminum articles and steel
articles"282 specifically based on the Secretary's assessments that foreign producers of derivative
steel and alumin ium products "have increased shipments of such articles to the United States to
circumvent the duties on steel and aluminum articles imposed in Presidential Proclamations 9704
and 9705"283 and that "imports of these derivative articles threaten to undermine the actions taken
to address the risk to the national security of the United States found in Presidential Proclamations
9704 and 9705".284 In this respect, the measures introduced by Presidential Proclamation 9980 have
a close connection to the instruments identified in Switzerland's panel request.285
7.19. The legal basis for Presidential Proclamation 9980 is Section 232.286 Section 232 in turn
authorizes the US President, if he concurs with the findings in the US Secretary of Commerce's
reports, "to adjust the imports of [an] article and its derivatives so that such imports will not threaten
to impair the national security ".287 In Presidential Proclamation 9980, the US President notes the
importance of stabilizing domestic capacity utilization in the steel and aluminium industries at the
levels recommended by the US Secretary of Commerce in the Steel and Aluminium Reports.288 The
US President further relies on the Secretary's conclusion that "reducing imports of the derivative
articles … would reduce circumvention and facilitate the adjustment of imports that Proclamation
9704 and Proclamation 9705, as amended, made to increase domestic capacity utilization".289 This
further demonstrates the connection between Presidential Proclamation 9980 on derivative products
and the earlier Presidential Proclamations 9704 and 9705 stemming from Section 232 and the Steel
and Aluminium Reports.
7.20. The duties and exemptions on derivative steel and aluminium products are also explicitly
linked to the objectives of the earlier measures taken under Section 232 identified in Switzerland's
panel request. Presidential Proclamation 9980 provides that imports of certain derivative steel and
aluminium products have significantly increased since tariffs and quotas were imposed on certain
steel and aluminium products, and that the net effect of this increase has been to "undermine the
purpose of the p roclamations adjusting imports of aluminum and steel articles to remove the
threatened impairment of the national security" .290 This Proclamation states that the duties on
derivative steel and aluminium products are "necessary and appropriate to address cir cumvention
that is undermining the effectiveness of the adjustment of imports made in Proclamation 9704 and
Proclamation 9705".291 This confirms that Presidential Proclamation 9980 supplements Presidential
Proclamations 9704 and 9705 in pursuit of the same objectives under Section 232 based on
recommendations by the Secretary of Commerce in the Steel and Aluminium Reports.
7.21. For the foregoing reasons, the Panel concludes that Presidential Proclamation 9980 and the
actions set out therein, i.e. the imposition of duties on derivative steel and aluminium products and
corresponding exemptions, bear a close connection to the earlier measures on steel and aluminium
that are identified in Switzerland's panel request. Moreover, Switzerland's panel request was
formulated so as to encompass such supplements or extensions. The Panel therefore finds that these
measures are within its terms of reference.

281 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), p. 5281.
282 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), p. 5283.
 283 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), p. 5282.
284 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), p. 5282.
285 The Panel also notes that Presidential Proclamation 9980 defines its product scope with reference to
the steel and aluminium articles envisaged in Presidential Proclamations 9704 and 9705. (Presidential
Proclamation 9980, (Exhibit CHE-72 and USA-225), p. 5282).
286 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), p. 5283 ("Section 232 of the Trade
Expansion Act of 1962, as amended, authorizes the President to adjust the imports of an article and its
derivatives that are being imported into the United States in such quantities or under such circumstances as to
threaten to impair the national security of the United States" (emphasis added)).
287 Section 232, (Exhibit CHE-1 and USA-1), § 1862(c)(1)(A).
288 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), pp. 5281-5282.
289 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), p. 5282.
290 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), p. 5282.
291 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225), p. 5283.

7.3.3 Exclusion of imports of steel and aluminium products from Canada and Mexico from
the additional duties
7.22. Presidential Proclamation 9893 provides that the "United States has successfully concluded
discussions with Canada and Mexico on satisfactory alternative means" 292 and that as a
consequence, the United States has "decided to exclude Canada and Mexico from the tariff
proclaimed in Proclamation 9704" on aluminium products .293 Similarly, Presidential Proclamation
9894 states that the "United States has successfully concluded discussions with Canada and Mexico
on satisfactory alternative means"294 and that as a consequence, the United States has "decided to
exclude Canada and Mexico from the tariff proclaimed in Proclamation 9705" on steel products.295
Switzerland argues that the modifications introduced by Presidential Proclamations 9893 and 9894
fall within the Panel's terms of reference.296
7.23. The Panel recalls that b etween March and May 2018, the United States issued several
Presidential Proclamations e xempting certain countries from the additional duties on steel and
aluminium imports.297 These exemptions were granted based on the US President's determination
in Presidential Proclamations 9704 and 9705 that "should the United States and any [country] arrive
at a satisfactory alternative means to address the threat to the national security … [the US President]
may remove or modify the restriction on [steel and alumin ium] articles imports from that
country".298 Switzerland's panel request identifies Presidential Proclamations 9704 and 9705 as well
as subsequent proclamations granting exemptions to countries including Australia, Argentina, Brazil
and the Republic of Korea.299
7.24. As discussed above 300, a panel may review measures that come into existence after panel
establishment that bear a close relationship to measures described in the panel request. In this
regard, the Panel notes that Presidential Proclamations 9893 and 9894 directly refer to Presidential
Proclamations 9704 and 9705 in setting out their legal basis. In particular, they recall the US
President's determination in Presidential Proclamations 9704 and 9705 on the circumstances under
which exemptions from the additional duties could be granted.301 Presidential Proclamations 9893
and 9894 also refer to the authority of the US President under Section 232 and the findings of the
US Secretary of Commerce in the Steel and Aluminium Reports, a feature shared by the Presidential
Proclamations identified in Switzerland's panel request, including Presidential Proclamations 9704
and 9705.302 For the Panel, this demonstrates the connection between Presidential Proclamations
9893 and 9894 and the Presidential Proclamations identified in Switzerland's panel request relating
to the country exemptions.
7.25. In addition to the above, the Panel notes the similarities between the exemptions granted
through Presidential Proclamations 9893 and 9894 and the exemptions identified in Switzerland's
panel request. Each exemption is designed to exclude countries from the additional duties applicable
to an identical set of products , namely those set out in the annexes to Presidential Proclamations

292 Presidential Proclamation 9893, (Exhibit CHE-74 and USA-232), p. 23983.
293 Presidential Proclamation 9893, (Exhibit CHE-74 and USA-232), p. 23983.
294 Presidential Proclamation 9894, (Exhibit CHE-73 and USA-233), p. 23987.
295 Presidential Proclamation 9894, (Exhibit CHE-73 and USA-233), p. 23988.
296 Switzerland's response to Panel question No. 87.
297 See sections 2.2.1.2 and 2.2.2.2 above.
298 Presidential Proclamation 9739, (Exhibit CHE-15 and USA-14), pp. 20677-20678; Presidential
Proclamation 9740, (Exhibit CHE-10 and USA-13), pp. 20683-20684; Presidential Proclamation 9758, (Exhibit
CHE-16 and USA-16), pp. 25849-25850; Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15), pp.
25857-25858. See also Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11620; Presidential
Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11626.
299 Switzerland's panel request, pp. 2-3.
300 See para. 7.16 above.
301 Presidential Proclamation 9893, (Exhibit CHE-74 and USA-232), p. 23983; Presidential Proclamation
9894, (Exhibit CHE-73 and USA-233), p. 23987 ("should the United States and any such country arrive at a
satisfactory alternative means to address the threat to the national security such that … imports from that
country no longer threaten to impair the national security, [the US President] may remove or modify the
restriction on steel articles imports from that country").
302 Presidential Proclamation 9893, (Exhibit CHE-74 and USA-232), p. 23983; Presidential Proclamation
9894, (Exhibit CHE-73 and USA-233), p. 23987. See also Steel Report, (Exhibit CHE-2 and USA-7), pp. 60-61;
Aluminium Report, (Exhibit CHE-5 and USA-8), p. 109.

9704 and 9705. 303 The exemptions to Canada and Mexico were also granted under the same
circumstances as the exemptions identified in Switzerland's panel request, i.e. concluded discussions
on "satisfactory alternative means to address the threatened impairment to [US] national security"
posed by imports from the exempted country304 and the US President's determination that imports
from the exempted country "no longer threaten to impair the national security".305 These similarities
confirm the close connection between exemptions granted through Presidential Proclamations 9893
and 9894 and those identified in Switzerland's panel request.
7.26. For these reasons and in light of the specific circumstances of this case, the Panel concludes
that Presidential Proclamations 9893 and 9894 and the actions set out therein, i.e. the exemptions
from the additional duties to imports from Canada and Mexico, bear a close connection to the earlier
measures on steel and aluminium products identified in Switzerland's panel request. Moreover,
Switzerland's panel request was formulated so as to encompass such extensions of exemptions.306
The Panel therefore finds that these measures are within its terms of reference.
7.3.4 Changes to the additional import duty for steel products from Türkiye
7.27. Switzerland argues that the Panel should take into account the change of the additional import
duty applicable to steel imports from Türkiye from 50% to 25% .307 The Panel notes that, as
evidenced in Presidential Proclamation 9886 of 16 May 2019, the US President decided to remove
the 50% duty on steel imports from Türkiye imposed by Presidential Proclamation 9772 and reduce
it to 25%.308
7.28. As discussed above309, a panel may review measures that come into existence after panel
establishment that bear a close relationship to measures described in the panel request. The Panel
notes that Presidential Proclamation 9886 introduces a modification to Presidential Proclamation
9772 of 10 August 2018, which was identified in Switzerland's panel request .310 For the Panel,
modifying the applicable rate of the additional import dut y on steel products from Türkiye without
introducing any other change confirms the close connection between the original measure identified
by Switzerland and the measure introduce d by Presidential Proclamation 9886 of 16 May 2019.
Therefore, in making its findings and recommendations, the Panel will take into account the change
to the additional import duty applicable to steel imports from Türkiye from 50% to 25%.
7.3.5 Conclusion
7.29. Based on the foregoing and in light of the specific circumstances of the present dispute, the
Panel finds that (i) Presidential Proclamation 9980, (ii) Presidential Proclamations 9893 and 9894 ;
and (iii) Presidential Proclamation 9886 are within its terms of reference.

303 Presidential Proclamation 9739, (Exhibit CHE-15 and USA-14), pp. 20677-20678; Presidential
Proclamation 9740, (Exhibit CHE-10 and USA-13), p. 20684; Presidential Proclamation 9758, (Exhibit CHE-16
and USA-16), p. 25850; Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15), p. 25858; Presidential
Proclamation 9893, (Exhibit CHE-74 and USA-232), p. 23983; and Presidential Proclamation 9894, (Exhibit
CHE-73 and USA-233), p. 23988.
304 Presidential Proclamation 9739, (Exhibit CHE-15 and USA-14), p. 20677; Presidential Proclamation
9740, (Exhibit CHE-10 and USA-13), pp. 20683-20684; Presidential Proclamation 9758, (Exhibit CHE-16 and
USA-16), p. 25849; Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15), p. 25857; Presidential
Proclamation 9893, (Exhibit CHE-74 and USA-232), p. 23983; and Presidential Proclamation 9894, (Exhibit
CHE-73 and USA-233), p. 23987.
305 Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13), p. 20684; Presidential Proclamation
9758, (Exhibit CHE-16 and USA-16), p. 25850; Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15),
p. 25858; Presidential Proclamation 9893, (Exhibit CHE-74 and USA-232), p. 23983; and Presidential
Proclamation 9894, (Exhibit CHE-73 and USA-233), p. 23988.
306 Switzerland's panel request states that it "also covers any additional measures amending,
superseding, supplementing, updating, extending, replacing or implementing the measures referred to above
as well as any exemptions or exclusions applied". (Switzerland's panel request, p. 3).
307 Switzerland's response to Panel question No. 86.
308 "[The US President] determined that it is necessary and appropriate to remove the higher tariff on
steel imports from Turkey imposed by Proclamation 9772, and to instead impose a 25 percent ad valorem tariff
on steel imports from Turkey, commensurate with the tariff imposed on such articles imported from most
countries." (Presidential Proclamation 9886, (Exhibit CHE-77 and USA-230), p. 23422).
309 See para. 7.16 above.
310 Switzerland's panel request, p. 2.

7.4 Article II:1 of the GATT 1994
7.4.1 Introduction
7.30. Switzerland argues that the additional import duties on steel and aluminium products are
inconsistent with Articles II:1(a) and II:1(b) of the GATT 1994.311 Switzerland recalls t hat the
United States has applied ad valorem import duties of 25% on steel products, 50% on steel products
from Türkiye, and 10% on aluminium products.312 Switzerland submits that these additional import
duties constitute "other duties or charges" within th e meaning of Article II:1(b).313 As the
United States' Schedule does not report any other duties or charges with respect to the products at
issue, Switzerland advances that the additional import duties are therefore inconsistent with
Article II:1(b).314 To the extent that they are considered "ordinary customs duties", Switzerland
argues that the United States' tariff bindings are 0% and 0 -6.5% respectively for the steel and
aluminium products concerned, and it follows that the additional duties of 25% and 10% on steel
and aluminium products respectively are inconsistent with Article II:1(b) because they exceed these
bound rates.315 Finally, Switzerland contends that this violation of Article II:1(b) will necessarily
result in less favourable treatment under Article II:1(a).316
7.31. The United States has not advanced any arguments or evidence contesting the claims under
Articles II:1(a) and (b) of the GATT 1994.317
7.32. Article II:1 of the GATT 1994 provides in relevant part:
(a) Each contracting party shall accord to the commerce of the other contracting parties
treatment no less favourable than that provided for in the appropriate Part of the
appropriate Schedule annexed to this Agreement.
(b) The products described in Part I of the Schedule relating to any contracting pa rty,
which are the products of territories of other contracting parties, shall, on their
importation into the territory to which the Schedule relates, and subject to the terms,
conditions or qualifications set forth in that Schedule, be exempt from ordinary customs
duties in excess of those set forth and provided therein. Such products shall also be
exempt from all other duties or charges of any kind imposed on or in connection with
the importation in 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.
7.33. 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".

311 Switzerland's first written submission, paras. 10, 376-377, and 408. See also Switzerland's second
written submission, paras. 22-23; and response to Panel question No. 97.
312 Switzerland's first written submission, paras. 381-390.
313 Switzerland's first written submission, paras. 391 and 393-402.
314 Switzerland's first written submission, paras. 403-404.
315 Switzerland's first written submission, paras. 392 and 405-407.
316 Switzerland's first written submission, paras. 408-413.
317 See United States' closing statement at the second meeting of the Panel, para. 7 (indicating that the
United States "has imposed duties on certain steel and aluminum products on a non-MFN basis and in excess
of the levels set out in its WTO Goods Schedule").

7.34. Article II:1(a) of the GATT 1994 contains a general prohibition against according treatment
less favourable to imports than that provided for in a Member's Schedule. 318 The first sentence of
Article II:1(b) prohibits the imposition of ordinary customs duties on importation in excess of those
rates set forth in a Member's Schedule. 319 The second sentence of Article II:1(b) prohibits the
imposition of other duties or charges of any kind on or in connection with importation in excess of
those imposed on the date of entry into force of the GATT 1994 (or those directly and mandatorily
required to be imposed thereafter by legislation in force on that date). 320 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.321
7.35. In this dispute, the complainant focuses its arguments on inconsistency with Article II:1(b)
and alleges a consequential violation of Article II:1(a).322 Prior WTO adjudicators h ave considered
that Article II:1(b) prohibits "a specific kind of practice that will always be inconsistent with
paragraph (a)" because application of duties in excess of what is provided for in a Member's Schedule
necessarily constitutes "less favourable" treatment within the meaning of Article II:1(a).323 Given
these considerations, the Panel will assess whether the challenged measures result in the imposition
of duties in excess of what is provided for in the United States' Schedule under Article II:1(b), and
thus accord less favourable treatment than that provided for in the Schedule in violation of
Article II:1(a).
7.36. The Panel will begin by identifying the concessions and obligations for the relevant products
in the United States' Schedule before turning to the treatment of those products under the
challenged measures, specifically concerning:
a. the additional duties of 25% on steel products and 10% on aluminium products;
b. the additional duty of 50% on steel products from Türkiye; and
c. the additional duties of 25% on derivative steel products and 10% on derivative aluminium
products.324
7.4.2 Additional duties on steel and aluminium products
7.37. In March 2018, the United States imposed additional duties of 25% on steel products and
10% on aluminium products. 325 The following tables identify the steel and aluminium products
covered by the additional duties and provide a comparative analysis of the United States' bound
rates and its additional duty rates in relation to those products. The United States' Schedule does
not record any "other duties or charges" with respect to the steel and aluminium products at issue.326

318 See Appellate Body Reports, Argentina – Textiles and Apparel, para. 45; Colombia – Textiles,
319 See Appellate Body Reports, India – Additional Import Duties, para. 150; Colombia – Textiles,
para. 5.35.
320 See Appellate Body Report, India – Additional Import Duties, para. 151; Panel Report,
321 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.
322 See Switzerland's first written submission, paras. 408-413.
323 Appellate Body Report, Argentina – Textiles and Apparel, paras. 45-47. See also Panel Reports, EC –
Chicken Cuts, paras. 7.64-7.65; EC – IT Products, para. 7.747.
324 See Switzerland's first written submission, paras. 10 and 376-413. See also Switzerland's second
written submission, paras. 22-23; response to Panel question No. 97 (identifying challenges under Article II:1
in respect of Presidential Proclamation 9886 (amending the duty for steel products from Türkiye), 9980
(imposing duties on derivative products), and Presidential Proclamation 10060 (re-imposing a 10% duty on
steel products from Canada). With respect to Presidential Proclamation 10060, see fn 265 above. Switzerland
also challenges Section 232 as repeatedly interpreted and the ongoing use of Section 232 under Article II of
the GATT 1994 and, relatedly, Article XVI:4 of the WTO Agreement (Switzerland's first written submission,
paras. 604 and 613). The Panel does not find it necessary to rule on this claim given the circumstances of the
present dispute, its overall findings, and its mandate to make such findings as will assist the DSB in making the
recommendations or giving the rulings provided for in the covered agreements.
325 See Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10); Presidential Proclamation 9705,
(Exhibit CHE-8 and USA-9). See also section 2.2 for a detailed description.
326 United States Bound Concessions at the HS 6-digit subheading level.

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

HTS Code
Rates of customs duties
Bound rates327 Additional duty
1. 7206-7215
0 +25%
2. 7216 (except
certain
subheadings)328
3. 7217-7229
4. 7301.10.00
5. 7302.10
6. 7302.40.00
7. 7302.90.00
8. 7304-7306
Source: United States Bound Concessions at the HS 6-digit subheading level; Presidential Proclamation 9705329

Table 3: Aluminium Products Subject to Additional Duties under Section 232
Aluminium Products Subject to Additional Duties

HTS Code
Rates of customs duties
Bound rates330 Additional duty
1. 7601 0-2.6%
+10%
2. 7604 1.5-5%
3. 7605 2.6-4.2%
4. 7606 2.7-6.5%
5. 7607 0-5.8%
6. 7608 0-5.7%
7. 7609 5.7%
8. 7616.99.51 2.5%
Source: United States Bound Concessions at the HS 6-digit subheading level; Presidential Proclamation 9704331

327 Pursuant to Chapters 72 and 73 of the HTSUS, the generally applied rate for these products is also
0% for all relevant subheadings.
328 Exceptions for subheadings 7216.61.00, 7216.69.00, and 7216.91.00.
329 See United States' Schedule of Concessions, (Exhibit CHE-29); Harmonized Tariff Schedule of the
United States (2019) Revision 2, Chapter 76, (Exhibit CHE-31); and Presidential Proclamation 9705, (Exhibit
CHE-8 and USA-9). The Panel additionally relied on data from the WTO's Consolidated Tariff Schedule (CTS)
Database and online versions of the United States' harmonized tariff schedule, https://hts.usitc.gov/current
(accessed 22 June 2022).
330 Pursuant to Chapter 76 of the HTSUS, the generally applied rate for the relevant subheadings are as
follows: for HTS Code 7601, 0-2.6%; for HTS Code 7604, 1.5-5%; for HTS Code 7605, 2.6-4.2%; for HTS
Code 7606, 2.7-6.5%; for HTS Code 7607, 0-5.8%; for HTS Code 7608, 5.7%; for HTS Code 7609, 5.7%; and
for HTS Code 7616.99.51, 2.5%. In respect of HTS Code 7608, tariff lines 7608.10.00 and 7608.20.000, as
described in the United States' Schedule, are subdivided into two categories of (A) and (B). The former applies
to products certified for use in civil aircraft, for which a bound rate of zero applies. The latter applies to all
other products, for which a bound rate of 5.7% applies. The HTSUS does not draw a distinction between (A)
and (B) by simply providing for a rate of 5.7%.
331 See United States' Schedule of Concessions, (Exhibit CHE-29); Harmonized Tariff Schedule of the
United States (2019) Revision 2, Chapter 76, (Exhibit CHE-31); and Presidential Proclamation 9704, (Exhibit
CHE-13 and USA-10). The Panel additionally relied on data from the WTO's CTS Database and online versions
of the United States' harmonized tariff schedule, https://hts.usitc.gov/current (accessed 22 June 2022).

7.38. The Panel recalls that the first sentence of Article II:1(b) prohibits the imposition of ordinary
customs duties on importation in excess of those rates set forth in a Member's Schedule, whereas
the second sentence prohibits the imposition of all other duties or charges of any kind on or in
connection with importation except as recorded in a Member's Schedule. To fall within the scope of
Article II:1(b), the additional duties must therefore qualify as either "ordinary customs duties" under
the first sentence, or "other duties or charges" under the second sentence.
7.39. The term "ordinary customs dut ies" is not defined in the GATT 1994.332 However, previous
WTO panels and the Appellate Body have highlighted several factors that are relevant to this
characterization. First, the word "ordinary" has been defined as referring to duties "of the usual kind,
not singular or exceptional"333 or "occurring in regular custom or practice".334 Second, the "customs
dut[y]" must be imposed "on [the product's] importation"; in other words, the obligation to pay
must accrue at the moment of or by virtue of the product's i mportation into the Member's customs
territory.335 Third, neither the form which the duty takes, nor the basis on which it is calculated, will
necessarily be dispositive.336 Rather, panels have examined duties by their design and structure 337
and found certain duties and charges, based on their particular features, not to constitute "ordinary
customs duties" in the sense of Article II:1(b).338 The term "all other duties or charges of any kind"
has been interpreted broadly as a residual category, which covers al l duties or charges on or in
connection with importation that are neither "ordinary customs duties" nor the duties or charges
expressly provided for in Article II:2 of the GATT 1994.339
7.40. In the present dispute, Switzerland argues that the additional duties of 25% on steel products
and 10% on aluminium products constitute "other duties or charges" inconsistent with the second
sentence of Article II:1(b) of the GATT 1994. In particular, Switzerland highlights the following
features:
a. the additional duties do not replace, but rather coexist with the pre-existing MFN tariffs;340
b. the additional duties are extraordinary in nature as "emergency measures" and thus
cannot be classified as "ordinary" customs duties;341
c. the additional duties are not applied on an MFN basi s, as imports of steel and aluminium
products originating in certain countries are exempted from these additional duties;342

332 See Appellate Body Report, Chile – Price Band System, para. 265.
333 See Panel Report, Chile – Price Band System, para. 7.51.
334 Panel Report, Dominican Republic – Safeguard Measures, para. 7.83.
335 Appellate Body Report, China – Auto Parts, para. 158. In Dominican Republic – Safeguard Measures,
the panel thus noted that: "the expression 'ordinary customs duties' in Article II:1(b) of the GATT 1994 refers
to duties collected at the border which constitute 'customs duties' in the strict sense of the term" and "this
expression does not cover all possible extraordinary or exceptional duties collected in customs." (Panel Report,
336 Panel Report, Dominican Republic – Safeguard Measures, para. 7.84 (referring to Appellate Body
Report, Chile – Price Band System, paras. 216 and 271-278). See also Appellate Body Reports, China – Auto
Parts, para. 162 (noting that "the time at which a charge is collected or paid is not decisive"); EC – Bananas III
(Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US), para. 416 (noting in passing that "it is
unusual that a tariff concession inscribed in a Member's Schedule would be limited in time").
337 See Panel Report, Dominican Republic – Safeguard Measures, para. 7.85 (noting that to determine
whether the duties are "ordinary customs duties", panels "must consider the design and structure of the
measures concerned"). See also Appellate Body Report, Argentina – Textiles and Apparel, para. 55;
Panel Report, Russia – Tariff Treatment, para. 7.92.
338 See e.g. Appellate Body Reports, Peru – Agricultural Products, paras. 5.70-5.76; Chile – Price Band
System (Article 21.5 – Argentina), paras. 167 and 171; Panel Reports, Peru – Agricultural Products,
paras. 7.373-7.374; Dominican Republic – Import and Sale of Cigarettes, para. 7.115.
339 Panel Reports, Dominican Republic – Import and Sale of Cigarettes, para. 7.113; Dominican Republic
– Safeguard Measures, para. 7.79. See also Appellate Body Report, India – Additional Import Duties,
para. 157.
340 Switzerland's first written submission, para. 397.
341 Switzerland's first written submission, para. 398.
342 Switzerland's first written submission, para. 399.

d. the additional duties appear to be imposed on a temporary rather than a permanent
basis;343 and
e. the characterization of the additiona l duties as "ordinary customs duties" under the
United States' domestic law is not dispositive for its characterization under WTO law.344
7.41. In the alternative, Switzerland argues that to the extent that the additional duties are
considered "ordinary customs duties" under the first sentence, they would be inconsistent with
Article II:1(b) because they exceed the United States' bound rates.345
7.42. The Panel takes due note of Switzerland's view that the additional duties qualify as "other
duties or charges" u nder the second sentence of Article II:1(b), and recognizes that the
United States has not raised any arguments contesting this characterization.346 However, the Panel
is not bound by the arguments raised by a party and can use those arguments freely to develop its
own legal reasoning. 347 Moreover, in some circumstances, a panel's duty to conduct an objective
assessment under Article 11 of the DSU may require it to assess for itself the applicability of a
relevant provision, regardless of whether such applicability has been disputed by the parties. 348 In
light of the specific circumstances of this dispute, including the features of the duties at iss ue, the
Panel considers it necessary to conduct an independent assessment of their characterization as
"ordinary customs duties" or "other duties or charges" under Article II:1(b).
7.43. Having examined the design and structure of the additional duties, as well as the domestic
instruments through which they were operationalized, the Panel considers that the duties are more
appropriately characterized as "ordinary customs duties" under Article II:1(b). In particular, the
Panel observes that the additional duties are: (a) levied on all imports of the covered steel and
aluminium products; (b) calculated on an ad valorem basis; (c) described as "tariffs" and "ordinary
customs dut[ies]" in the relevant Presidential Proclamations; and (d) operationalized as "ordinary
customs dut[ies]" and inscribed in the "Rates of Duty – General" column of the United States' tariff
schedule.349 These duties are also clearly applicable to products "on their importation into the
territory" of the United States in the sense of Article II:1(b).
7.44. Nonetheless, the Panel is cognizant that the additional duties also bear other features which
reflect the particular process under Section 232 through which they were imposed and maintained.
First, the additional duties were not inscribed through an amendment or replacement of the existing
MFN tariff, but rather through inscription in subchapter III of chapter 99 of the HTSUS, titled
"Temporary Modifications Established Pursuant to Trade Legislation".350 As such, the duties expressly
apply "in addition" to any pre-existing tariffs.351 Second, although the additional duties are generally
applicable on an MFN basis, they are subject to a number of country exemptions. 352 Finally, while

343 Switzerland's first written submission, para. 400. Switzerland highlights two key factors in this
regard: (a) that the Presidential Proclamations expressly provide that "[t]he Secretary shall continue to
monitor" the imports of steel and aluminium and articles; and (b) that subchapter III of chapter 99 of the
HTSUS refers to "[t]emporary modifications established pursuant to trade legislation." (Ibid). (emphasis
original)
344 Switzerland's first written submission, para. 401.
345 Switzerland's first written submission, paras. 392 and 405-407.
346 See, however, United States' closing statement at the second meeting of the Panel, para. 7
(indicating that the United States has imposed duties on certain steel and aluminium products "in excess of the
levels set out in its WTO Goods Schedule").
347 See Appellate Body Report, Brazil – Taxation, para. 5.171.
348 See Appellate Body Report, Indonesia – Iron or Steel Products, paras. 5.32-5.33.
349 See Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10); Presidential Proclamation 9705,
(Exhibit CHE-8 and USA-9).
350 See Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), Annex; Presidential Proclamation
9705, (Exhibit CHE-8 and USA-9), Annex.
351 See Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11621; Presidential
Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11627 (stating that the duties apply "in addition to any
other duties, fees, exactions or charges applicable" to the imported articles). (emphasis added)
352 See sections 2.2.1.2 and 2.2.2.2 for a detailed description. See also Presidential Proclamation 9704,
(Exhibit CHE-13 and USA-10), p. 11620; Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11626.
See also Presidential Proclamation 9710, (Exhibit CHE-14 and USA-12); Presidential Proclamation 9711,
(Exhibit CHE-9 and USA-11); Presidential Proclamation 9739, (Exhibit CHE-15 and USA-14); Presidential
Proclamation 9740, (Exhibit CHE-10 and USA-13); Presidential Proclamation 9758, (Exhibit CHE-16 and USA-
16); and Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15). These will be elaborated in more detail
in the context of Switzerland's claim under Article I:1 of the GATT 1994.

the additional duties are not expressly imposed for a temporary period, ce rtain aspects of their
implementation suggest that they may not be intended as permanent adjustments to the MFN tariff
rate. These include the aforementioned inscription in subchapter III of chapter 99, as well as the
stipulated requirement in the relevant Presidential Proclamations that "[t]he Secretary shall continue
to monitor" these duties.353 In the circumstances of this dispute and mindful of these other features,
the Panel will also consider whether the additional duties as "other duties or ch arges" would be
inconsistent with the second sentence of Article II:1(b).
7.45. As "ordinary customs duties" under Article II:1(b), it is evident that the additional duties of
25% on steel products and 10% on aluminium products exceed the United States' bound rates of
0% and 0-6.5% on steel and aluminium products respectively.354 These products are therefore not
exempt from ordinary customs duties in excess of those set forth in the United States' Schedule, in
a manner inconsistent with the first sentence of Artic le II:1(b). Moreover, the United States'
Schedule does not record any "other duties or charges" with respect to the steel and aluminium
products at issue.355 Even if considered to be "other duties or charges", the additional duties would
therefore exceed those imposed on the entry into force of the GATT 1994 or directly and mandatorily
required to be imposed thereafter, in a manner inconsistent with the second sentence of
Article II:1(b).
7.46. Accordingly, the Panel considers that the additional duties are incons istent with the first
sentence of Article II:1(b) as "ordinary customs duties" exceeding the United States' bound rates
for the relevant products. Even if the additional duties were considered "other duties or charges",
the Panel considers that these dutie s would also be inconsistent with the second sentence of
Article II:1(b). On either basis, the additional duties on steel and aluminium products would
therefore be inconsistent with Article II:1(b) of the GATT 1994. As the additional duties are
inconsistent with Article II:1(b) by exceeding the levels in the United States' Schedule, the
United States has necessarily accorded treatment less favourable than that provided for in its
Schedule. The Panel therefore concludes that the additional duties are also in consistent with
Article II:1(a) of the GATT 1994.
7.4.3 Additional duty on steel products from Türkiye
7.47. In August 2018, an additional duty of 50% was imposed on steel products from Türkiye.356
As this duty is applicable to the same steel products as listed in Table 2 above, the United States'
bound rates in respect of those products have already been set out that Table.357
7.48. As previously noted, Switzerland argues generally that the additional duties on steel and
aluminium products constitute "other duties or charges" under the second sentence of
Article II:1(b), and in the alternative, "ordinary customs duties" under the first sentence. 358 These
arguments include the additional duty of 50% on steel products in the case of Türkiye.359
7.49. In the Panel's view, the additional duty on steel products from Türkiye raises similar issues in
terms of its characterization as either an "ordinary customs dut[y]" or "other dut[y] or charge[]"

353 See Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10); Presidential Proclamation 9705,
(Exhibit CHE-8 and USA-9).
354 See para. 7.37 above.
355 United States Bound Concessions at the HS 6-digit subheading level.
356 See section 2.2.1.1 for a detailed description. To recall, the additional duty of 50% on steel products
from Türkiye was originally imposed in August 2018, and was amended in May 2019 to decrease the duty rate
to 25%. (See Presidential Proclamation 9772, (Exhibit CHE-12); Presidential Proclamation 9886, (Exhibit CHE-
77 and USA-230)). Presidential Proclamation 9886, which amends the duty rate to 25%, states that the
United States has "remove[d] the higher tariff on steel imports from Turkey, and [] instead impose[d] a
25 per cent ad valorem tariff on steel imports from Turkey, commensurate with the tariff imposed on such
articles imported from most countries". (See Presidential Proclamation 9886, (Exhibit CHE-77 and USA-230),
p. 23422). The Panel recalls that Switzerland has also requested findings under Article II:1 of the GATT 1994 in
respect of Presidential Proclamation 9986. (See Switzerland's response to Panel question No. 97). In this
regard and taking into account the Panel's findings in section 7.3.4, we note that any findings concerning the
general additional duty rate of 25% on steel products would also be applicable to this amended duty rate for
steel imports from Türkiye.
357 See para. 7.37 above.
358 See paras. 7.40-7.41 above.
359 See Switzerland's first written submission, paras. 381-390.

under Article II:1(b). For reasons similar to those outlined above 360, the Panel consider s that the
additional duty is an "ordinary customs dut[y]" under the first sentence of Article II:1(b). In
particular, the additional duty is: (a) levied on all imports of the covered steel products from Türkiye;
(b) calculated on an ad valorem basis; (c) described as a "tariff" or "ordinary customs duty" in the
relevant Presidential Proclamations; and (d) operationalized as an "ordinary customs duty" and
inscribed in the "Rates of Duty – General" column of the United States' tariff schedule.361
7.50. As an "ordinary customs dut[y]", it is evident that the additional duty of 50% on steel products
from Türkiye exceeds the United States' bound rates for the steel products at issue (0%), in a
manner inconsistent with the first sentence of Article II:1(b). Moreover, even if considered to be
"other duties or charges" under the second sentence362, the United States' Schedule does not record
any "other duties or charges" with respect to the steel products at issue. 363 On either basis, the
additional duty on steel products from Türkiye would therefore be inconsistent with Article II:1(b)
of the GATT 1994. As the additional duty on steel products from Türkiye exceeds the levels set out
in the United States' Schedule, it follows that the United States has accorded treatment less
favourable than that provided for in its Schedule. The Panel therefore concludes that the additional
duty on steel products from Türkiye is also inconsistent with Article II:1(a) of the GATT 1994.
7.4.4 Additional duties on derivative steel and aluminium products
7.51. In January 2020, the United States announced additional duties of 25% on derivative steel
and 10% on derivative aluminium products.364 The following tables identify the derivative steel and
aluminium products covered by these additional duties, and provide a comparative analysis of the
United States' bound rates and its additional duty rates in relation to those products. As with the
other steel and aluminium products, the United States' Schedule similarly does not record any "other
duties or charges" with respect to these products.365
Table 4: Derivative Steel Products Subject to Additional Duties under Section 232
Derivative Steel Products Subject to Additional Duties

HTS Code
Rates of customs duties
Bound rates366 Additional duty
1. 7317.00.30
0-2.5% +25%
2. 7317.00.5503
3. 7317.00.5505
4. 7317.00.5507
5. 7317.00.5560
6. 7317.00.5580
7. 7317.00.6560
8. 8708.10.30
9. 8708.29.21
Source: United States Bound Concessions at the HS 6-digit subheading level; Presidential Proclamation 9980367

360 See para. 7.43 above.
361 See Presidential Proclamation 9772, (Exhibit CHE-12).
362 These considerations may be relevant in light of other features of the additional duty on steel
products from Türkiye, such as: (a) being inscribed in subchapter III of chapter 99 of the HTSUS titled
"Temporary Modifications Established Pursuant to Trade Legislation"; (b) applying "in addition" to any
pre-existing duties; and (c) solely applying to Türkiye. (See Presidential Proclamation 9772, (Exhibit CHE-12)).
363 United States Bound Concessions at the HS 6-digit subheading level.
364 See Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225). As noted above, Switzerland
argues generally that the additional duties on steel and aluminium products constitute "other duties or
charges" inconsistent with Article II:1(b) but did not raise specific arguments in respect of the additional duties
on derivative products. (See paras. 7.40-7.41 above).
365 United States Bound Concessions at the HS 6-digit subheading level.
366 Pursuant to Chapters 73 and 87 of the HTSUS, the generally applied rate for these products is also
0-2.5% for all relevant subheadings.
367 See Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225). The Panel additionally relied on
data from the WTO's CTS Database and online versions of the United States' harmonized tariff schedule,
https://hts.usitc.gov/current (accessed 22 June 2022).

Table 5: Derivative Aluminium Products Subject to Additional Duties under Section 232
Derivative Aluminium Products Subject to Additional Duties

HTS Code
Rates of customs duties
Bound rates368 Additional duty
1. 7614.10.50
2.5-5.7% +10%
2. 7614.90.20
3. 7614.90.40
4. 7614.90.50
5. 8708.10.30
6. 8708.29.21
Source: United States Bound Concessions at the HS 6-digit subheading level; Presidential Proclamation 9980369

7.52. In the Panel's view, the additional duties on derivative steel and aluminium products raise
similar issues in terms of their characterization as either "ordinary customs duties" or "other duties
or charges" under Article II:1(b). For reasons similar to those outlined above370, the Panel considers
that the additional duties on derivative products are "ordinary customs duties" under the first
sentence of Article II:1(b). In particular, the additional duties are: (a) levied on all imports of the
covered derivative steel and aluminium products; (b) calculated on an ad valorem basis; (c)
described as "tariffs" or "ordinary customs dut[ies]" in the relevant Presidential Proclamations; and
(d) operationalized as "ordinary customs dut[ies]" and inscribed in the "Rates of Duty – General"
column of the United States' tariff schedule.371
7.53. As "ordinary customs duties", it is evident that the additional duties of 25% on derivative
steel products and 10% on derivative aluminium products exceed the United States' bound rates,
which range from 0-2.5% and 2.5-5.7% for the derivative aluminium and steel products at issue
respectively, in a manner inconsistent with the first sentence of Article II:1(b).372 Moreover, even if
considered to be "other duties or charges" under the second sentence373, the United States' Schedule
does not record any "other duties or charges" with respect to the steel and aluminium products at
issue.374 On either basis, the additional duties on derivative products would therefore be inconsistent
with Article II:1(b) of the GATT 1994. As the additional duties on derivative steel and aluminium
products exceed the levels set on in the United States' Schedule, it follows that the United States
has accorded treatment less favourable than that provided for in its Schedule. The Panel therefore
concludes that the additional duties on derivative steel and aluminium products are also inconsistent
with Article II:1(a) of the GATT 1994.
7.4.5 Conclusion
7.54. Regarding Switzerland's claims under Article II of the GATT 1994, the Panel concludes that:

368 Pursuant to Chapters 76 and 87 of the HTSUS, the generally applied rate for these products is 0-
5.7% for all relevant subheadings. In respect of HTS Code 8708.29.21, WTO document WT/Let/1098 lists this
sub-heading 8708.29.21 at a bound duty rate of 2.5%. In the HTSUS, sub-heading 8708.29.21 is duty free.
369 See Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225). The Panel additionally relied on
data from the WTO's CTS Database and online versions of the United States' harmonized tariff schedule,
https://hts.usitc.gov/current (accessed 22 June 2022).
370 See para. 7.43 above.
371 See Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225).
372 See para. 7.51 above.
373 These considerations may be relevant in light of other features of the additional duties on derivative
steel and aluminium products, such as: (a) being inscribed in subchapter III of chapter 99 of the HTSUS titled
"Temporary Modifications Established Pursuant to Trade Legislation"; (b) applying "in addition" to any
pre-existing duties; and (c) being subject to exemptions for certain countries. (See Presidential Proclamation
9980, (Exhibit CHE-72 and USA-225)).
374 United States Bound Concessions at the HS 6-digit subheading level.

a. the additional duties of 25% on steel products and 10% on aluminium products do not
accord the treatment provided for in the United States' Schedule, contrary to
Article II:1(b) and Article II:1(a) of the GATT 1994;
b. the additional duty of 50% on steel products from Türkiye does not accord the treatment
provided for in the United States' Schedule, contrary to Article II:1(b) and Article II:1(a)
of the GATT 1994; and
c. the additional duties of 25% on derivative steel products and 10% on derivative aluminium
products do not accord the treatment provided for in the United States' Schedule, contrary
to Article II:1(b) and Article II:1(a) of the GATT 1994.
7.5 Article I:1 of the GATT 1994
7.5.1 Introduction
7.55. Switzerland argues that the United States has imposed the additional duties on imports of
steel products from all countries except Australia, Argentina, the Republic of Korea, and Brazil, and
on imports of aluminium products from all countries except Argentina and Australia, inconsistently
with Article I:1 of the GATT 1994.375 In Switzerland's view, the additional duties constitute "customs
duties" and thus fall within the scope of Article I:1.376 Switzerland also considers that origin is the
sole criterion to distinguish between the products and it follows that the products must be considered
"like" within the meaning of Article I:1.377 Switzerland further advances that, by excluding from the
application of the additional import duties products which originate in certain countries, the
United States is granting an "advantage" within t he meaning of Article I:1, as it is clear that the
exemption creates more favourable competitive opportunities for those products in comparison to
products from all other countries that are subject to those duties.378 Finally, Switzerland argues that
this advantage has not been accorded "immediately" and "unconditionally" to like products from
other WTO Members, and that the United States has thus acted inconsistently with Article I:1 of the
GATT 1994.379
7.56. The United States has not advanced any arguments or evidence contesting the complainant's
claim under Article I:1 of the GATT 1994.380
7.57. Article I:1 of the GATT 1994 provides:
1. With respect to customs duties and charges of any kind imposed on or in connection
with importation or exportation or imposed on the international transfer of payments
for imports or exports, and with respect to the method of levying such duties and
charges, and with respect to all rules and formalities in connection with importation and
exportation, and with respect to all matters referred to in paragraphs 2 and 4 of
Article III,* any advantage, favour, privilege or immunity granted by any Member to
any product originating in or destined for any other country shall be accorded
immediately and unconditionally to the like product orig inating in or destined for the
territories of all other [Members].
7.58. Article I:1 of the GATT 1994 prohibits, with respect to measures falling within its scope of
application, discrimination among like products originating in or destined for different countri es.381
The obligation to accord most-favoured-nation treatment as set out in Article I:1 of the GATT 1994

375 Switzerland's first written submission, paras. 414 and 422-434. See also Switzerland's response to
Panel's questions following the first meeting, Annex I, fn 1; response to Panel question No. 97, para. 81.
376 Switzerland's first written submission, paras. 425-428.
377 Switzerland's first written submission, para. 429.
378 Switzerland's first written submission, paras. 430-432. Switzerland argues that, in fact, the panels
and the Appellate Body have expressly recognized that duty free treatment or an import duty exemption
available to imports of a products originating in certain countries is an "advantage" within the meaning of
Article I:1. (Ibid. para. 430).
379 Switzerland's first written submission, paras. 433-434.
380 See United States' closing statement at the second meeting of the Panel, para. 7 (the United States
accepting that it "has imposed duties on certain steel and aluminum products on a non-MFN basis and in
excess of the levels set out in its WTO Goods Schedule").
381 Appellate Body Report, Canada – Autos, para. 84.

has been understood to require equality of competitive opportunities for like imported products from
any Member.382
7.59. The Panel will proceed by examining the challenged measures under Article I:1 of the
GATT 1994, specifically concerning (a) the country exemptions for steel and aluminium products and
(b) the country exemptions for derivative steel and aluminium products.383
7.5.2 Country exemptions for steel and aluminium products
7.5.2.1 Australia, Argentina, Brazil, and the Republic of Korea
7.60. As described in greater detail above384, in March 2018, the United States imposed additional
import duties of 25% on steel products and 10% on aluminium products.385 At that time, Australia,
Argentina, Brazil, and the Republic of Korea were temporarily exempted from the additional duties
on both steel and aluminium products. 386 By May 2018, the United States had agreed to various
"satisfactory alternative means" with these countries, inc luding: (a) exemptions for steel and
aluminium products from Australia ; and (b) exemptions for steel and aluminium products from
Argentina, as well as steel products from Brazil and the Republic of Korea , including through the
alternative of import quotas. 387 In Switzerland's view, by imposing additional duties on imports of
steel and aluminium products from all countries except Australia, Argentina, the Republic of Korea,
and Brazil, the United States has granted to products from those countries an "advantage, favour,
privilege or immunity" within the meaning of Article I:1 which has not been accorded immediately
and unconditionally to like products originating in other WTO Members, including Switzerland.388
7.61. The Panel recalls that the exemptions in question relate to the additional duties on steel and
aluminium products, which have been found under Article II:1(b) of the GATT 1994 to constitute
"ordinary customs duties" applicable on importation into the territory of the United States.389 As
such, they also relate to "customs duties and charges" connected with importation falling within the
scope of Article I:1 of the GATT 1994.390
7.62. By design, the country exemptions exclude steel and aluminium products of certain origins
from the application of the additional duties, conferring differential treatment to exempted products
in comparison to those subject to the duties. Furthermore, it is undisputed that the additional duties
apply to all qualifying products imported into the United States and that the relevant country
exemptions apply to products from select countries (i.e. Australia, Argentina, Brazil, and the Republic

382 See Appellate Body Report, EC – Seal Products, paras. 5.86-5.87. Under Article I:1 of the
GATT 1994, a complainant must demonstrate that: (a) the measure at issue falls within the scope of
Article I:1; (b) the imported products at issue are "like"; (c) the measure confers an "advantage, favour,
privilege or immunity" on any product originating in the territory of any country; and (d) the advantage,
favour, privilege or immunity granted is not extended "immediately" and "unconditionally" to like products
originating in the territory of all Members. (See Appellate Body Report, EC – Seal Products, para. 5.86).
383 See Switzerland's first written submission, paras. 422-434; response to Panel's questions following
the first meeting, Annex I, fn 1; and response to Panel question No. 97. As part of its claim under Article I:1,
Switzerland clarified that any references to the additional import duty of 25% on imports of certain steel
products "should be understood as equally referring to the additional duty of 50% applicable to imports of
certain steel products from Turkey". (See Switzerland's first written submission, para. 414 and fn 476). As
such, the Panel does not understand Switzerland to have raised a distinct claim under Article I:1 in respect of
the 50% duty, but to have included it as part of the "additional duties" to which the challenged country
exemptions relate. The Panel has therefore not made distinct findings in respect of this duty under Article I:1.
384 See section 2.2 above.
385 See Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10); Presidential Proclamation 9705,
(Exhibit CHE-8 and USA-9).
386 See Presidential Proclamation 9710, (Exhibit CHE-14 and USA-12); Presidential Proclamation 9711,
(Exhibit CHE-9 and USA-11).
387 See Presidential Proclamation 9739, (Exhibit CHE-15 and USA-14); Presidential Proclamation 9740,
(Exhibit CHE-10 and USA-13); Presidential Proclamation 9758, (Exhibit CHE-16 and USA-16); and Presidential
Proclamation 9759, (Exhibit CHE-11 and USA-15). These exemptions were extended based on the
United States' "security relationship" with these Members. (Ibid).
388 Switzerland's first written submission, para. 414.
389 Moreover, even if not considered to qualify as "ordinary customs duties", the additional duties would
in any event be inconsistent with the second sentence of Article II:1(b) of the GATT 1994 as "other duties or
charges". See section 7.4 above.
390 Previous panels have found exemptions from import duties to fall within the scope of Article I:1 of
the GATT 1994. (See e.g. Panel Reports, Canada – Autos, para. 10.16; Indonesia – Autos, paras. 7.3-7.5).

of Korea) solely on the basis of origin. 391 The United States does not contest that the measures
exempt certain products based exclusively on origin contrary to the obligation to accord
most-favoured-nation treatment under Article I:1.392 Therefore, with respect to the imposition of
customs duties, the country exemptions accord an "advantage"393 to steel and aluminium products
from the exempted countries that is not accorded immediately and unconditionally to "like
products"394 originating in non -exempted countries. The Panel th us concludes that, by granting
country exemptions from the additional duties to Australia, Argentina, Brazil, and the Republic of
Korea, the United States acted inconsistently with Article I:1 of the GATT 1994.
7.63. In the context of its claim under Article I:1, Switzerland also raised specific arguments in
respect of the import quotas granted to Argentina, Brazil, and the Republic of Korea395, and clarified
that in its view, the relevant "country exemptions" include "the seeking of and/or conclusion of
'agreements' with a view to exempt imports from those countries from the duties and/or quotas".396
The Panel notes that such quotas and any other "agreements" relate solely to countries that are
exempted from the additional duties, and the existence of such quotas or "agreement s" does not
negate the fact that the products to which they apply are exempted from the additional duties. 397
Given the foregoing finding on the advantage accorded by the exemptions, the Panel does not
consider it necessary for the purposes of this dispute to determine whether any particular alternative
treatment of exempted products from countries such as Australia, Argentina, Brazil, and the Republic
of Korea , including under any import quota or other "agreements", would constitute a distinct
violation of Article I:1 of the GATT 1994.
7.5.2.2 Canada and Mexico
7.64. When the United States imposed additional import duties of 25% on steel products and 10%
on aluminium products in March 2018, it exempted steel and aluminium products from Canada and
Mexico from those additio nal duties.398 After March 2018, the country exemptions for Canada and
Mexico went through a number of iterations, as elaborated in further detail in earlier sections of this
Report.399 Switzerland challenges the exemptions for steel and aluminium products f rom Canada

391 See sections 2.2.1.2 and 2.2.2.2 above. The Panel notes that a "presumption of likeness" has been
applied in prior disputes in situations where the only distinguishing factor under the challenged measure was
the origin of the products. These previous disputes suggest that, where a measure makes distinctions
exclusively on the basis of origin, it will typically not be necessary to conduct a detailed analysis of "likeness" of
the relevant products. (See Panel Report, Russia – Railway Equipment, paras. 7.897-7.899; see also
Panel Reports, Colombia – Ports of Entry, paras. 7.355-7.356; US – Poultry (China), paras. 7.424-7.432).
392 See United States' closing statement at the second meeting of the Panel, para. 7 (accepting that it
has imposed duties on certain steel and aluminium products "on a non-MFN basis").
393 See Appellate Body Report, Canada – Autos, para. 79; Panel Reports, EC – Bananas III, para. 7.239;
EC – Seal Products, para. 7.595. Previous panels have found country exemptions conferring duty free
treatment to constitute an "advantage" under Article I:1. (See Panel Report, EC – Bananas III (Article 21.5 –
Ecuador II), paras. 7.152-7.153. See also Appellate Body Report, EC – Bananas III (Article 21.5 – Ecuador II) /
EC – Bananas III (Article 21.5 – US), para. 353).
394 See fn 391 above. In the specific circumstances of this dispute, including the lack of any rebuttal by
the United States, the Panel considers that the challenged measures apply to "like products" within the
meaning of Article I:1 of the GATT 1994, without the need to conduct a detailed "likeness" analysis.
395 See Switzerland's first written submission, para. 431. The Panel notes that, in response to its
questions, Switzerland clarified that its claim under Article I:1 related only to the "country exemptions", and
not to the "import quotas". (Switzerland's response to Panel's questions following the first meeting, Annex I).
396 See Switzerland's response to Panel's questions following the first meeting, Annex I, fn 1.
397 The Panel further notes that all the "satisfactory alternative means", regardless of their specific form,
were extended by the United States on the basis of their "security relationship" with the exempted countries
and based on the determination that "imports from these countries [would] no longer threaten to impair the
national security". (See Presidential Proclamation 9710, (Exhibit CHE-14 and USA-12); Presidential
Proclamation 9711, (Exhibit CHE-9 and USA-11); Presidential Proclamation 9739, (Exhibit CHE-15 and USA-
14); Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13); Presidential Proclamation 9758, (Exhibit
CHE-16 and USA-16); and Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15)).
398 See Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10); Presidential Proclamation 9705,
(Exhibit CHE-8 and USA-9).
399 See sections 2.2 and 7.3 above. See also Presidential Proclamation 9739, (Exhibit CHE-15 and USA-
14); Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13); Presidential Proclamation 9758, (Exhibit
CHE-16 and USA-16); Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15); Presidential Proclamation
9893, (Exhibit CHE-74 and USA-232); Presidential Proclamation 9894, (Exhibit CHE-73 and USA-233); and
Presidential Proclamation 10060, (Exhibit CHE-75 and USA-234).

and Mexico, as set forth in Presidential Proclamations 9893 and 9894 of May 2019, under Article I:1
of the GATT 1994.400
7.65. The country exemptions for Canada and Mexico relate to the same "customs duties and
charges" connected with importation in the sense of Article I:1 of the GATT 1994.401 It is also
undisputed that these country exemptions apply to products from select countries (i.e. Canada and
Mexico) exclusively on the basis of origin. 402 Therefore, with respect to the imposition of customs
duties, these country exemptions accord an "advantage" to steel and aluminium products from the
exempted countries that is not accorded immediately and unconditionally to "like products"
originating in non -exempted countries. 403 The Panel thus c oncludes that, by granting country
exemptions from the additional duties to Canada and Mexico, the United States acted inconsistently
with Article I:1 of the GATT 1994.
7.66. Given this finding, the Panel again does not consider it necessary to determine whethe r any
particular alternative treatment of exempted products from Canada and Mexico, including under any
other "agreements", would constitute a distinct violation of Article I:1 of the GATT 1994.404
7.5.3 Country exemptions for derivative steel and aluminium products
7.67. In January 2020, the United States announced additional duties of 25% on derivative steel
and 10% on derivative aluminium products. It also announced the following exemptions from these
duties: (a) exemptions for derivative steel products from Australi a, Argentina, Brazil, the Republic
of Korea, Canada, and Mexico; and (b) exemptions for derivative aluminium products from Australia,
Argentina, Canada, and Mexico.405 Switzerland has challenged the Presidential Proclamation setting
forth these duties and exemptions under Article I:1 of the GATT 1994.406
7.68. The Panel has previously found that the additional duties on derivative products qualify as
"ordinary customs duties" under Article II:1(b) of the GATT 1994, and thus similarly considers that
the country exem ptions from these d uties relate to "customs duties and charges" in the sense of
Article I:1 of the GATT 1994.407 It is also undisputed that these country exemptions apply to products
from select countries (i.e. Australia, Argentina, Brazil, the Republic of Korea, Canada, and Mexico)
exclusively on the basis of origin. 408 Therefore, with respect to the imposition of cu stoms duties,
these country exemptions accord an "advantage" to steel and aluminium products from the
exempted countries that is not accorded immediately and unconditionally to "like products"
originating in non -exempted countries. 409 The Panel thus concludes that, by granting country
exemptions from the additional duties on derivative products to Australia, Argentina, Brazil, the
Republic of Korea, Canada, and Mexico, the United States acted inconsistently with Article I:1 of the
GATT 1994.
7.5.4 Conclusion
7.69. Regarding Switzerland's claims under Article I of the GATT 1994, the Panel concludes that:
a. the country exemptions for steel and aluminium products confer an advantage to products
from Australia, Argentina, Brazil, and the Republic of Korea that has not been accorded

400 See also Switzerland's response to Panel's questions following the first meeting, Annex I, fn 1;
response to Panel question No. 87, paras. 38-44 (challenging the "exclusion of imports of steel and aluminium
products from Canada and Mexico from the additional import duties"), and No. 97, para. 81 (challenging the
"exclusion of imports of steel and aluminium products from Canada and Mexico from the additional import
duties" set out in Presidential Proclamations 9893 and 9894 under Article I:1).
401 See para. 7.61 above.
402 See para. 7.62 above.
403 See fns 391 and 393 above.
404 See para. 7.63 above.
405 Presidential Proclamation 9980, (Exhibit CHE-72 and USA-225).
406 Switzerland's response to Panel question No. 97, para. 81 (challenging the "[a]dditional import
duties on the derivatives of steel and aluminium products" imposed by Presidential Proclamation 9980 under
Article I:1 of the GATT 1994).
407 See sections 7.4.4 and 7.4.5 above. See also para. 7.61 above.
408 See para. 7.62 above.
409 See fns 391 and 393 above.

immediately and unconditionally to like products from all other Members, in a manner
inconsistent with Article I:1 of the GATT 1994;
b. the country exemptions for steel and aluminium products confer an advantage to products
from Canada and Mexico that has not been accorded immediately and unconditionally to
like products from all other Members, in a manner inconsistent with Article I:1 of the
GATT 1994; and
c. the country exemptions for derivative steel and aluminium products confer an advantage
to products from Australia, Argentina, Brazil, the Republic of Korea, Canada, and Mexico
that has not been accorded immediately and unconditionally to like products from all other
Members, in a manner inconsistent with Article I:1 of the GATT 1994.
7.6 Article XI:1 of the GATT 1994
7.6.1 Introduction
7.70. Switzerland argues that the import adjustments also consist of quotas imposed on imports of
steel products from the Republic of Korea , Argentina, and Brazil , and on imports of aluminium
products from Argentina, inconsistently with Article XI:1 of the GATT 1994.410 In Switzerland's view,
these quotas restrict the quantities of steel and aluminium products that can be imported from those
countries by imposing a maximum ceiling on those products; in other words, they have a limiting
effect. Thus, Switzerland considers that the measures at issue, on their face, impose quantitative
restrictions in violation of Article XI:1.411
7.71. The United States has not advanced any arguments or evidence contesting the complainant's
claim under Article XI:1 of the GATT 1994.412
7.72. Article XI:1 of the GATT 1994 provides that:
1. No prohibitions or restrictions other than duties, taxes or other charges, whether
made effective through quotas, import or export licences or other measures, shall be
instituted or maintained by any Member on the impo rtation of any product of the
territory of any other Member or on the exportation or sale for export of any product
destined for the territory of any other Member.
7.73. Article XI:1 lays down a general obligation to eliminate quantitative restrictions by prohibiting
Members from instituting or maintaining prohibitions or restrictions other than duties, taxes, or other
charges on the importation, exportation, or sale for export of any product of another Member or
destined for another Member.413 Such prohibitions or restrictions are prohibited whether or not they
are "made effective" through "quotas, import or export licenses or other measures".414
7.74. The Panel will proceed by examining the challenged measures under Article XI:1 of the
GATT 1994, specifically concerning the import quotas for steel and aluminium products.415

410 Switzerland's first written submission, para. 435. See also Switzerland's second written submission,
paras. 22-23; response to Panel's questions following the first meeting, Annex I.
411 Switzerland's first written submission, paras. 446-448.
412 See United States' closing statement at the second meeting of the Panel, para. 7.
413 Previous panels and the Appellate Body have noted that the scope of Article XI:1 is broad, capturing
any measures through which a prohibition or restriction is produced or becomes operative. (See e.g.
Appellate Body Reports, Argentina – Import Measures, paras. 5.216-5.219; Panel Report, India - Quantitative
Restrictions, para. 5.128).
414 See e.g. Panel Report, Colombia – Textiles (Article 21.5 – Colombia)/ Colombia – Textiles
(Article 21.5 – Panama), para. 7.160.
415 See Switzerland's first written submission, paras. 435-448; response to Panel's questions following
the first meeting, Annex I. Switzerland also challenges Section 232 as repeatedly interpreted and the ongoing
use of Section 232 under Article XI of the GATT 1994 and, relatedly, Article XVI:4 of the WTO Agreement
(Switzerland's first written submission, paras. 610 and 613). The Panel does not find it necessary to rule on
this claim given the circumstances of the present dispute, its overall findings, and its mandate to make such
findings as will assist the DSB in making the recommendations or giving the rulings provided for in the covered
agreements.

7.6.2 Import quotas for steel and aluminium products
7.75. By May 2018, the United States imposed import quotas as an alternative to the additional
duties on steel and aluminium products for: (a) steel and alumini um products from Argentina; (b)
steel products from Brazil; and (c) steel products from the Republic of Korea .416 Switzerland
challenges these as quantitative restrictions that are prohibited under Article XI:1 of the
GATT 1994.417
7.76. The challenged measures comprise import quotas for steel and aluminium products from
Argentina, Brazil, and the Republic of Korea. Such "quotas" are expressly listed in Article XI:1 as a
method by which prohibitions or restrictions on importation may not b e made effective. 418 The
United States does not contest that the import quotas prohibit or restrict importation of steel and
aluminium products, contrary to the obligation to eliminate quantitative restrictions set forth in
Article XI:1 of the GATT 1994.419 Based on these considerations, the Panel concludes that the import
quotas for steel and aluminium products from Argentina, Brazil , and the Republic of Korea are
inconsistent with Article XI:1 of the GATT 1994.
7.6.3 Conclusion
7.77. Regarding Switzerland's claims under Article XI of the GATT 1994, the Panel concludes that
by imposing import quotas on steel and aluminium products from Argentina, Brazil, and the Republic
of Korea, the United States has instituted prohibitions or restrictions other than duties, taxes or
other charges on the importation of those products of the territory of those Members, inconsistently
with Article XI:1 of the GATT 1994.
7.7 Article X:3 of the GATT 1994
7.78. Switzerland challenges the administration of the Presidential Proclamations adjusting steel
and aluminium imports into the United States under Article X:3(a) of the GATT 1994.420 According
to Switzerland, the manner in which the United States administers these proclamations in relation
to the possibility of agreeing on "alternative means" to the additional duties on steel and aluminium
imports is inconsistent with Article X:3(a) of the GATT 1994.421 Switzerland also considers that the
United States fails to administer in a reasonable manner the product exclusion mechanism set out
in these proclamations, through which relief can be sought from the additional duties on steel and
aluminium products. 422 Finally, Switzerland argues that the administration of the Presidential
Proclamations is not uniform or reasonable due to the lack of any criteria or guidelines as to how
the US Secretary of Commerce should assess the need to amend or discontinue the measure s at
issue.423 The United States has not advanced any arguments or evidence contesting Switzerland's
claims under Article X:3(a) of the GATT 1994.
7.79. The Panel recalls its findings of inconsistency in relation to the additional duties , country
exemptions and import quotas on steel and aluminium under the GATT 1994. The Panel considers
that the findings of inconsistency under other provisions of the GATT 1994 are sufficient, in the
circumstances of the present dispute, to assist the DSB in making the recommendations or in giving

416 See Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13); Presidential Proclamation 9758,
(Exhibit CHE-16 and USA-16); and Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15).
417 Switzerland's first written submission, paras. 435-448.
418 WTO and GATT panels have previously found import and export quotas to constitute "restrictions"
prohibited by Article XI:1, as such quotas necessarily have a limiting effect. (See Panel Reports, China – Raw
Materials, paras. 7.207-7.209 and 7.224; China – Rare Earths, para. 7.200; and GATT Panel Report, EEC –
Import Restrictions, paras. 9 and 31-32).
419 See United States' closing statement at the second meeting of the Panel, para. 7.
420 Switzerland's first written submission, section IV.E.5. See also Switzerland's response to Panel
question No. 97 (clarifying that its claims under Article X:3(a) extend to Presidential Proclamations 9886
(amending duty for steel products from Türkiye), 9893 and 9894 (exempting imports from Canada and Mexico
from the additional duties), 9980 (imposing duties on derivative products), and 10060 (re-imposing duty of
10% on steel products from Canada)).
421 Switzerland's first written submission, paras. 449 and 472-479.
422 Switzerland's first written submission, paras. 450 and 480-488.
423 Switzerland's first written submission, paras. 451 and 489-492.

the rulings provided for in the covered agreements as required under the DSU.424 In light of these
findings, the Panel does not consider it necessary to make findings on Switzerland's claims relating
to the administration of the process es for excluding certain countries or products from measures
that have already been found inconsistent with other obligations under the GATT 1994.425 The Panel
thus declines to make findings regarding the claims under Article X:3(a) of the GATT 1994.
7.8 Article XIX of the GATT 1994 and the Agreement on Safeguards
7.8.1 Introduction
7.80. Switzerland claims that certain measures at issue are safeguard measures and are
inconsistent with certain obligations under Article XIX of the GATT 1994 and the Agreement on
Safeguards. Switzerland also claims that certain measures at issue constitute "voluntary export
restraints, orderly marketing arrangements or any other similar measures on the export or the
import side" within the me aning of Article 11.1(b) of the Agreement on Safeguards. The
United States disputes the applicability of Article XIX of the GATT 1994 and the Agreement on
Safeguards to the measures at issue and additionally argues that Article XXI of the GATT 1994 is a
defence to the complainant's claims under Article XIX of the GATT 1994 and the Agreement on
Safeguards.
7.81. The Panel will first address the parties' disagreement as to the applicability of Article XIX of
the GATT 1994 and the Agreement on Safeguards to the measures at issue.426 In doing so, the Panel
will address specific issues of interpretation contested by the parties in accordance with Article 3.2
of the DSU and customary rules of interpretation of public international law. The Panel will then
assess the evidence and arguments submitted by the parties in relation to the relevant measures at
issue in light of the conclusions reached regarding the interpretation of Article XIX of the GATT 1994
and the Agreement on Safeguards.
7.8.2 Interpretation of Article XIX of the GATT 1994 and the Agreement on Safeguards in
accordance with Article 3.2 of the DSU
7.82. Article XIX of the GATT 1994 is entitled "Emergency Action on Imports of Particular Products"
and provides in relevant part:
1. (a) If, as a result of unforeseen developm ents and of the effect of the obligations
incurred by a contracting party under this Agreement, including tariff concessions, any
product is being imported into the territory of that contracting party in such increased
quantities and under such conditions as to cause or threaten serious injury to domestic
producers in that territory of like or directly competitive products, the contracting party
shall be free, in respect of such product, and to the extent and for such time as may be
necessary to prevent or remedy such injury, to suspend the obligation in whole or in
part or to withdraw or modify the concession.
7.83. Article 1 of the Agreement on Safeguards is a "General Provision" and provides:

424 See e.g. Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program,
paras. 5.189-5.190 and 5.194; US – Upland Cotton, para. 732. The Panel further notes various instances in
which previous panels have declined to make findings under Article X:3 of the GATT 1994 based on other
findings of inconsistency concerning the underlying measure being administered, including duties in excess of
the bound rates in a Member's Schedule of Concessions. (See Panel Reports, Peru – Agricultural Products,
Railway Equipment, para. 7.939).
425 The Panel similarly does not consider it necessary to address claims relating to the administration of
the process by which such measures, which have already been found inconsistent with other obligations under
the GATT 1994, may be amended or discontinued.
426 Switzerland also challenges Section 232 as repeatedly interpreted and the ongoing use of
Section 232 under Article XIX of the GATT 1994, the Agreement on Safeguards and, relatedly, Article XVI:4 of
the WTO Agreement (Switzerland's first written submission, paras. 584 and 613). The Panel does not find it
necessary to rule on this claim given the circumstances of the present dispute, its overall findings, and its
mandate to make such findings as will assist the DSB in making the recommendations or giving the rulings
provided for in the covered agreements.

This Agreement establishes rules for the application of safeguard measures which shall
be understood to mean those measures provided for in Article XIX of GATT 1994.
7.84. Article 11 of the Agreement on Safeguards contains the following provisions on "Prohibition
and Elimination of Certain Measures":
1. (a) A Member shall not take or seek any emergency action on imports of particular
products as set forth in Article XIX of GATT 1994 unless such action conforms with the
provisions of that Article applied in accordance with this Agreement.
(b) Furthermore, a Member shall not seek, take or maintain any voluntary export
restraints, orderly marketing arrangements or any other similar measures on the export
or the import side. [3],[4] These include actions taken by a single Member as well as
actions under agreements, arrangements a nd 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 doe s not apply to measures sought, taken or maintained by a
Member pursuant to provisions of GATT 1994 other than Article XIX, and Multilateral
Trade Agreements in Annex 1A other than this Agreement, or pursuant to protocols and
agreements or arrangements concluded within the framework of GATT 1994.
3 An import quota applied as a safeguard measure in conformity with the relevant provisions of
GATT 1994 and this Agreement may, by mutual agreement, be administered by the exporting
Member.
4 Examples of similar measures include export moderation, export-price or import-price
monitoring systems, export or import surveillance, compulsory import cartels and discretionary
export or import licensing schemes, any of which afford protection.

7.85. The Panel notes that a threshold question presented by the parties' arguments concerns the
applicability of Article XIX of the GATT 1994 and the Agreement on Safeguards to the measures at
issue. Switzerland emphasizes the characterization of the measures at issue as safeguards or other
prohibited measures under Article 11.1(b) of the Agreement on Safeguards based on objective
features of the measures at issue. 427 The United States refers to Article XXI of the GATT 1994 and
contends that the Agreement on Safeguards is inapplicable to th e measures at issue by virtue of
Article 11.1(c) as the measures were "sought, taken or maintained … pursuant to provisions of
GATT 1994 other than Article XIX".428
7.86. The Panel recalls that it is required under Article 11 of the DSU to make an objective
assessment of the matter before it, including an objective assessment of the facts of the case and
the applicability of and conformity with the relevant covered agreements.429 Moreover, the Panel is
required to address the parties' disagreement regarding the ap plicability of the relevant covered
agreements in accordance with Article 3.2 of the DSU and the customary rules of interpretation of
public international law.430 The rule of interpretation set out in Article 31(1) of the Vienna Convention
forms part of such "customary rules of interpretation of public international law" and provides that
"[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the
terms in their context and in the light of its object and purpose." 431 Regarding the interpretation of

427 Switzerland's first written submission, paras. 127-177. Switzerland specifically argues that the
measures at issue objectively present the constituent features of safeguard measures under Article XIX of the
GATT 1994. (See ibid. (referring to Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60)).
428 United States' response to Panel question Nos. 77 and 78; see also second written submission,
section II.A.
429 The Panel further notes the principle affirmed in past disputes that panels under the DSU have
independence in the structure of their analysis and the development of legal reasoning, as well as latitude in
the evidence on the record relied upon to reach findings that will assist the DSB. (See e.g. Appellate Body
Reports, EC – Hormones, para. 156; EC – Fasteners (China) (Article 21.5 – China), para. 5.61; Panel Reports,
India – Solar Cells, para. 7.41; EC – Export Subsidies on Sugar (Australia), para. 7.121 and fn 437).
430 See section 7.1 above.
431 See e.g. Appellate Body Reports, US – Gasoline, p. 17; India – Patents (US), para. 46; Argentina –
Textiles and Apparel, para. 42; US – Carbon Steel, para. 61. The Panel notes the parties' agreement that the
Panel should be guided by the ordinary meaning of the terms of the Agreement on Safeguards in their context

treaties authenticated in two or more languages, the customary rules in Article 33 of the
Vienna Convention provide that "[t]he terms of the treaty are presumed to have the same meaning
in each authentic text" and that in case of a difference between authentic texts "which the application
of articles 31 and 32 [of the Vienna Convention] does not remove, the meaning which best reconciles
the texts, having regard to the object and purpose of the treaty, shall be adopted".432
7.87. The Panel notes that the Agreement on Safeguards "establishes rules for the application of
safeguard measures which shall be understood to mean those measures provided for in Article XIX
of GATT 1994".433 In this regard, Article 11.1(a) of the Agreement on Safeguards provides that "[a]
Member shall not take or seek any emergency action on imports of particular products as set forth
in Article XIX of GATT 1994 unless such action conforms with the provisions of that Article applied
in accordance with this Agreement." Article 11.1(a) is one of three paragraphs under Article 11.1 of
the Agreement on Safeguards as part of provisions entitled "Prohibition and Elimination of Certain
Measures" under which Article 11.1(b) prohibits "voluntary export restraints, orderly mar keting
arrangements or any other similar measures on the export or the import side". Article 11.1(c) refers
to measures "sought, taken or maintained … pursuant to provisions of GATT 1994 other than
Article XIX", to which the Agreement on Safeguards "does not apply".
7.88. According to its express terms, Article 11.1(c) removes certain measures from the scope of
application of the Agreement on Safeguards, including the rules specified in Article 11.1(a) and the
prohibition under Article 11.1(b).434 This is supported by the unambiguous reference in
Article 11.1(c) to the inapplicability of the Agreement on Safeguards as a whole in respect of
measures "sought, taken or maintained … pursuant to provisions of GATT 1994 other than
Article XIX". The Panel notes that the paragraphs of Article 11.1 of the Agreement on Safeguards do
not contain any terms explicitly indicating the limitation or qualification of any paragraph in relation
to another.435 In this respect, Article 11.1 does not subordinate any of the paragraphs in relation to
one another concerning the applicability of the Agreement on Safeguards. The Panel thus considers
that finding the measures at issue to fall within the scope of Article 11.1(c) would fully address the
matter within the Panel's terms of reference under the Agreement on Safeguards as there would be
no basis to assess claims of inconsistency under an agreement that "does not apply" to the measures
at issue. The Panel is mindful in this connection of its mandate to make only such findings under the
covered agreements as will assist the DSB in this dispute, taking into account the specific measures
at issue, the evidence and arguments submitted by the parties, and the Panel's overall conclusions
reached with respect to the matter referred to the DSB.436
7.89. In the circumstances of this dispute, the Panel therefore considers that it is appropriate to
determine whether the measures at issue can be characterized as having been "sought, taken or
maintained … pu rsuant to provisions of GATT 1994 other than Article XIX" within the meaning of
Article 11.1(c) of the Agreement on Safeguards. The Panel will focus its assessment on the terms of

and in light of the object and purpose of the agreement. (See Switzerland's response to Panel question No. 20
and United States' response to Panel question No. 20. See also Switzerland's second written submission,
paras. 80-88; United States' second written submission, section IV.B).
432 See e.g. Appellate Body Reports, US – Softwood Lumber IV, para. 59; EC – Bed Linen (Article 21.5 –
India), fn 153; US – Upland Cotton, para. 424; and US – Stainless Steel (Mexico), fn 200.
433 Article 1 of the Agreement on Safeguards.
434 The French and Spanish versions of Article 11.1(c) use the terms "ne s'applique pas" and "no es
aplicable" respectively to denote that the Agreement on Safeguards is inapplicable to "mesures" or "medidas"
described in that provision. The Panel understands that the parties agree that Article 11.1(c) excludes certain
measures from the scope of application of the Agreement on Safeguards, notwithstanding their disagreement
as to when such measures may be considered to have been "sought, taken or maintained … pursuant to
provisions of the GATT 1994 other than Article XIX" within the meaning of Article 11.1(c). (See Switzerland's
response to Panel question Nos. 20 and 22; United States' response to Panel question Nos. 20 and 22).
435 The paragraphs of Article 11.1 can be contrasted in this respect with other provisions of the covered
agreements that explicitly limit or qualify the scope of that provision by reference to another provision in the
covered agreements, including within the same article. See e.g. Article 5.6 of the Agreement on Safeguards
("Notwithstanding the provisions of paragraph 5 …"); Article 3.3 of the SPS Agreement ("Notwithstanding the
above …"); Article X:6 of the WTO Agreement ("Notwithstanding the other provisions of this Article …");
Article 3.1 of the Agreement on Agriculture ("Subject to the provisions of Article 6 …"); Article XII:1 of the
GATT 1994 ("… subject to the provisions of the following paragraphs of this Article"); Article 7.1 of the
Agreement on Safeguards ("… provided that the pertinent provisions of Articles 8 and 12 are observed").
436 In the particular circumstances of this dispute, if the Agreement on Safeguards were determined to
be inapplicable to the measures at issue, the Panel does not consider that there would be anything additional
under Article XIX of the GATT 1994 within the Panel's terms of reference on which it could make findings to
assist the DSB in this matter.

Article 11.1(c) of the Agreement on Safeguards, and particularly, the terms "pursuant to" and "other
than", in their context and in light of the object and purpose of the Agreement on Safeguards.
7.90. Regarding the terms "pursuant to" in Article 11.1(c), Switzerland contends that the terms
"pursuant to" refer to measures falling "within the scope" of the relevant provisions of the GATT 1994
and argues that the determination of this question requires an objective assessment of the relevant
features of the measures at issue.437 For the United States, the expression "pursuant to" is different
from the terms "in compliance with" or "consistent with", and serves the function of "direct[ing] the
Panel to the other GATT 1994 provision pursuant to which the measure in question was attempted
or tried".438
7.91. The Panel will assess the meaning of "pursuant to" as it is used in Article 11.1(c) having
regard for relevant context and the use of terms in the three authentic language versions of the
Agreement on Safeguards, in accordance with the customary rules of interpretation of public
international law. The expression "pursuant to" in Article 11.1(c) denotes the existence of a
relationship between the measures of a Member and provisions of the GATT 1994 other than
Article XIX.439 The term "pursuant" when used with the preposition "to" may mean "under ", "in
accordance with", "in consequence of", or "as authori zed by". 440 Taken in isolation, the terms
"pursuant to" could potentially accommodate a range of meanings. Within this range of meanings,
the terms "pursuant to" in the context of Article 11.1(c) could be understood as consistency with
the requirements of a provision of the GATT 1994 other than Article XIX, or a different relationship
that does not require such consistency. For example, a measure could be characterized under
Article 11.1(c) as being "pursuant to" a provision in the sense of being sought, taken, or maintained
under the purview of that provision without necessarily meeting the requirements of the specific
terms of such other provision.
7.92. The Panel finds instructive the contrast between " pursuant to" in Article 11.1(c) and terms
used elsewhere in the Agreement on Safeguards that appear to convey a relationship of consistency
with the requirements of another provision of the covered agreements. This is particularly evident
in the other para graphs of Article 11.1 of the Agreement on Safeguards that provide immediate
context to the terms of Article 11.1(c) and use the expressions "in accordance with" and "in
conformity with" other provisions. The obligation for safeguard measures to meet the requirements
of Article XIX of the GATT 1994 and the Agreement on Safeguards is expressed in Article 11.1(a) by
providing that Members' safeguard measures must " conform[] with the provisions of that
Article applied in accordance with this Agreement". 441 Similarly, the elimination of measures
prohibited under Article 11.1(b) is expressed in the obligation that such measures "shall be brought
into conformity with this Agreement or phased out in accordance with " the mandatory timetables
and requirements set out in Article 11.2.442 These explicit references in Article 11.1 to "conformity"
and actions "in accordance with" other provisions are comparable to other uses of these terms in
the Agreement on Safeguards that similarly appear to denot e consistency with the referenced
requirements.443

437 Switzerland's response to Panel question No. 20.b (also arguing that if Article 11.1(c) is interpreted
as referring to measures that are in conformity with a given GATT provision, this would amount to conflating
the issue of applicability of legal disciplines with the issue of WTO-consistency); see also second written
submission, para. 87.
438 United States' response to Panel question Nos. 20 and 98.
439 Similarly, in the French and Spanish versions of Article 11.1(c), the phrases "en vertu de" and "de
medidas") and provisions of the GATT 1994 other than Article XIX ("dispositions du GATT de 1994 autres que
l'article XIX" and "disposiciones del GATT de 1994, aparte del artículo XIX").
440 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 2411; Garner's
Dictionary of Legal Usage, 3rd Edition (Oxford University Press. 2011), p. 737.
441 Emphasis added.
442 Emphasis added. See also footnote 3 to Article 11.1(b) of the Agreement on Safeguards ("[a]n
import quota applied as a safeguard measure in conformity with the relevant provisions of GATT 1994 and this
Agreement may, by mutual agreement, be administered by the exporting Member") (emphasis added). The
indication of consistency or conformity with certain requirements is further supported by the mandatory terms
"shall" and "must" in Article 11.2 establishing the obligations with which a measure must be in conformity or
accordance.
443 See e.g. Article 4.1(b) ("'threat of serious injury' shall be understood to mean serious injury that is
clearly imminent, in accordance with the provisions of paragraph 2") (emphasis added); Article 4.2(c) ("The

7.93. The contrast in meaning between "pursuant to" in Article 11.1(c) and terms expressing a
standard of consistency finds support in the French version of the provision referring to "mesures …
en vertu de disp ositions de GATT de 1994 autre que l'article XIX ". As in the English text, the
Agreement on Safeguards uses the French terms " conformes" and " conformément" in Articles
11.1(a) and 11.1(b) for "conforms" and "in accordance with", which similarly appear to i ndicate
consistency or conformity with the legal provisions specified in those paragraphs.444 In contrast, the
French version of Article 11.1(c) foregoes the term "conformément" in favour of "en vertu de", whose
dictionary meanings include " en conséquence d e" (as a consequence of), " par l'effet de " (by the
effect of), "par le pouvoir de" (by the power of), and "au nom de" (in the name of or on behalf of).445
The Panel further notes that the use of the French term "conformément" in various provisions of the
Agreement on Safeguards corresponds to English references to "conformity" and actions being "in
accordance with" other provisions. 446 The terms of Article 11.1(c) in both English and French thus
reflect a departure from terms used in other provisions of the Agreement on Safeguards that appear
to convey a requirement of conformity or consistency.
7.94. The Panel notes the terminology used in the Spanish version of the Agreement on Safeguards,
which in Article 11.1(c) provides that the Agreement does not apply to meas ures sought, taken or
maintained "de conformidad con otras disposiciones del GATT de 1994". Dictionary meanings of the
terms "de conformidad con" include "con arreglo a" or "a tenor de" (according to), "en proporción o
correspondencia a" (in proportion or correspondence to), or "de la misma suerte o manera que" (in
the same way or manner).447 The Spanish terms "de conformidad con" are also used in the provisions
referred to above in which the English and French terms use variants of "conformity" or "conformité",
as well as "in accordance with" in English, and appear to indicate a requirement of conformity or
consistency with the other referenced legal provisions. This is notably the case in Articles 11.1(a)
and (b) where the Spanish text uses similar terms ("conformes" and "de conformidad con") as those
used in English and French. The Spanish version of Article 11.1(c) refers to "conformidad con otras
disposiciones del GATT de 1994", unlike the English and French terms in Article 11.1(c) that reflect
a clear departure from references to "conformity" or being "in accordance with" other legal
provisions.448
7.95. On balance, these considerations indicate that the terms "pursuant to" in Article 11.1(c) of
the Agreement on Safeguards do not require consistency with provisions of the GATT 1994 other
than Article XIX for a measure to fall under that paragraph. The text of Article 11.1(c) does not make
any explicit reference to a requirement of conformity with the provisions of GATT 1994 in English or
French in contrast to other provisions of the Agreement on Safeguards, including those that provide
immediate context for Article 11.1(c). The use of the French terms " en vertu de" in Article 11.1(c)
is especially compelling in this regard in signalling a contrast to the t erm " conformément" and

competent authorities shall publish promptly, in accordance with the provisions of Article 3 …") (emphasis
added); Article 7.2 ("[t]he period mentioned in paragraph 1 may be extended provided that the competent
authorities of the importing Member have determined, in conformity with the procedures set out in Articles 2,
3, 4 and 5 …") (emphasis added). In prior disputes under the Agreement on Safeguards, the Appellate Body
has referred to other provisions in the Agreement on Safeguards establishing requirements with which
safeguard measures must be in conformity, such as the conditions in Article 2.1 and the requirements of
Articles 3 and 4. (See Appellate Body Reports, US – Line Pipe, para. 84; US – Steel Safeguards, para. 264).
444 See also footnote 3 to Article 11.1(b) of the Agreement on Safeguards ("Un contingent d'importation
446 See e.g. Article 4.1(b) ("conformément aux dispositions du paragraphe 2"); Article 4.2(c)
articles 2, 3, 4 et 5").
447 Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), pp. 420-421.
448 The Spanish terms "de conformidad con" are also used in other provisions of the Agreement on
Safeguards that appear to indicate a standard of consistency across all language versions. (See e.g.
artículos 2, 3, 4 y 5")). The Panel further notes that the terms "de conformidad con" are translated with some
variation in English, including provisions in which the corresponding term for "de conformidad con" in the
English version is "under" within the specific context of the provision in question. (See Article 7.1 ("The period
shall not exceed four years, unless it is extended under paragraph 2.") (emphasis added); Article 7.4 ("A
measure extended under paragraph 2 …") (emphasis added)).

indicates a different legal relationship than consistency or conformity with the requirements of a
provision of the GATT 1994 other than Article XIX.
7.96. The comparison of terms in the different language versions is instructive but not in itself
dispositive regarding the interpretation of Article 11.1(c) of the Agreement on Safeguards in
accordance with Article 3.2 of the DSU. 449 The terms of Article 11.1(c) must be interpreted in
accordance with their ordinary meaning in their context and in light of the object and purpose of the
Agreement on Safeguards. Moreover, to the extent that the Spanish text "discloses a difference of
meaning" when compared to the text of Article 11.1(c) in English and French, the Panel finds
guidance in the rule of interpretation in Article 33(4) of the Vienna Convention that, if such difference
cannot be removed by application of Articles 31 and 32 of the Vienna Convention, the meaning which
best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.450
7.97. The Panel considers that interpreting the terms "pursuant to" in Article 11.1(c) to refer to
measures sought, taken, or maintained under the purview of another provision of the GATT 1994,
without entailing consistency with the requirements of such other provision, accords with the specific
context in which those terms appear. The terms "pursuant to" in Article 11.1(c) form part of a
provision governing the applicability of the Agreement on Safeguards rather than the consistency of
measures with the rules and requirements of that agreement. 451 Accordingly, the nature of the
relevant inquiry under Article 11.1(c) does not relate to another provision of the GATT 1994 as a
legal exception or justification for inconsistencies with the Agreement on Safeguards.452 Rather, the
relevant inquiry under Article 11.1(c) corresponds to the threshold issue of applicability and leaves
as a separate inquiry whether a measure is consistent with the requirements of such other provision
"pursuant to" which the measure was sought, taken, or maintained.
7.98. These considerations are also relevant for the interpretation of the terms "other than" in
Article 11.1(c) of the Agreement on Safeguards. The parties dispute the meaning of these terms
particularly in relation to their arguments on the characterization of measures as safeguards within
the meaning of Article XIX of the GATT 1994 and Article 1 of the Agreement on Safeguards. In this
connection, Switzerland contends that a measure may possess certain object ive features of a
safeguard measure and, if so, such measure would not be pursuant to a provision "other than"
Article XIX in the sense of Article 11.1(c).453 In the Panel's view, Switzerland's interpretation of the

449 The Panel notes that the terms "pursuant to" appear in various provisions of the Agreement on
Safeguards for which the corresponding French and Spanish terms reflect the potential range of meanings of
these terms according to their specific context. For example, Article 2.1 provides that a safeguard measure
may be applied "only if that Member has determined, pursuant to the provisions set out below," various
conditions for the application of safeguard measures. The context of mandatory conditionality in which
"pursuant to" appears in Article 2.1 ("may apply a safeguard measure … only if") is reflected in the French and
Spanish, respectively, as "conformément" and "con arreglo a". As another example, Article 10 of the
Agreement on Safeguards refers to "safeguard measures taken pursuant to Article XIX of GATT 1947" where
the corresponding French and Spanish terms ("au titre de" and "al amparo del" respectively) do not appear to
indicate consistency or conformity.
450 As noted above, this rule of interpretation forms part of the "customary rules of interpretation of
public international law" referred to in Article 3.2 of the DSU. See para. 7.86 above.
451 See Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.57 (distinguishing "factors
pertaining to the legal characterization of a measure for purposes of determining the applicability of the WTO
safeguard disciplines" from "the substantive conditions and procedural requirements that determine the WTO
consistency of a safeguard measure") (emphasis original).
452 The Panel notes in this regard that Article 11.1(c) of the Agreement on Safeguards serves a similar
role to certain provisions in the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing
Measures (SCM Agreement), which allow Members to take measures "under" other provisions of the
GATT 1994 but do not indicate a requirement of conformity with such other provisions. Moreover, the French
and Spanish versions of these provisions do not use terms such as "conformément" and "conformidad" but
rather "au titre" and "al amparo" respectively. (See Article 18.1 of the Anti-Dumping Agreement, footnote 24
and Article 32.1 of the SCM Agreement, footnote 56). At the same time, the Panel notes differences in the
terminology and structure of Article 11.1(c) of the Agreement on Safeguards compared to these footnotes,
which provide that the particular terms of Article 18.1 of the Anti-Dumping Agreement and Article 32.1 of the
SCM Agreement are "not intended to preclude actions under other relevant provisions of GATT 1994". By
contrast, Article 11.1(c) is in the main text of the provision and expressly states conditions under which the
agreement "does not apply". (See Appellate Body Report, US – Offset Act (Byrd Amendment), para. 262
(referring to Appellate Body Report, US – 1916 Act, para. 123) (describing the "accessory footnotes" as
"clarifications of the main provisions" on the "specific action" Members are permitted to take against dumping
or subsidies)).
453 Switzerland's second written submission, para. 88.

terms "provisions … other than" amounts t o meaning provisions that are exclusively other than
Article XIX of the GATT 1994. The Panel understands this interpretation to mean that the Agreement
on Safeguards could still be applicable to a measure notwithstanding its characterization as being
pursuant to another provision of the GATT 1994.
7.99. With respect to the ordinary meaning of the terms "other than", dictionary definitions include
"besides", "except" or "apart from". 454 The Panel notes that all three language version s of
Article 11.1(c) contain terms that are not qualified by any specification or limitation with respect to
being "other than" Article XIX of the GATT 1994. The ordinary meaning of these terms in their
context encompasses measures that are pursuant to ano ther provision of the GATT 1994, and the
Panel does not find in the text of Article 11.1(c) the imposition of an additional requirement or
limitation of being exclusively pursuant to such other provision. This interpretation is consonant with
the context o f the paragraphs of Article 11.1 that together establish the conditions for the
applicability of the Agreement on Safeguards. The question of applicability is addressed under
Article 11.1(c) by terms specifying a relationship between a measure and a provis ion of the
GATT 1994 "other than" Article XIX, namely that a measure is "pursuant to" such other relevant
provision, and providing that the Agreement on Safeguards does not apply to such measure.455
7.100. The Panel finds support for these conclusions in the obje ct and purpose of the Agreement
on Safeguards as expressed in its preamble recognizing "the need to clarify and reinforce the
disciplines of GATT 1994, and specifically those of its Article XIX (Emergency Action on Imports of
Particular Products), to re-establish multilateral control over safeguards and eliminate measures that
escape such control". In this regard, the preamble further expresses recognition of the need for "a
comprehensive agreement, applicable to all Members and based on the basic principle s of
GATT 1994". An essential corollary of the "multilateral control over safeguards" and elimination of
"measures that escape such control" under the Agreement on Safeguards is the explicit preservation
under Article 11.1(c) of the right for Members to ad opt measures under legal provisions of the
GATT 1994 that are part of the "basic principles" affirmed and reinforced by the Agreement on
Safeguards. The Panel considers significant in this regard the placement of Article 11.1(c) in the list
of paragraphs under Article 11.1 as part of provisions entitled "Prohibition and Elimination of Certain
Measures". The imposition of obligations to "clarify and reinforce the disciplines of GATT 1994", as
notably expressed in Articles 11.1(a) and (b), is explicitly conditioned by the terms of Article 11.1(c)
on the applicability of the agreement as a whole. The requirement under Article 11.1(c) for a
measure to be "pursuant to" a provision "other than" Article XIX of the GATT 1994 thus serves the
maintenance of a balance of rights and obligations that are in turn based on the terms of such other
provision.
7.101. The relevant provision of the GATT 1994 other than Article XIX in this dispute is Article XXI
entitled "Security Exceptions", which provides inter alia that "[n]othing in this Agreement shall be
construed … to prevent any [Member] from taking any action which it considers necessary for the
protection of its essential security interests".456 In accordance with the requirements of Article 11 of
the DSU, the Panel will assess the applicability of the Agreement on Safeguards to the measures at
issue in light of the foregoing interpretive considerations on Article 11.1(c) as well as the evidence
and arguments submitted by the parties in this dispute. Taking into account the case-specific nature
of the relevant inquiry on applicability rather than conformity, the Panel will identify relevant aspects
of the design and application of the measures wit h specific reference to their legal characterization
under Article 11.1(c) of the Agreement on Safeguards. The Panel will give due consideration to all
relevant evidence in this regard including the domestic law and procedures under which the

454 The terms of Article 11.1(c) in French and Spanish ("autres que" and "aparte del" respectively)
similarly mean different from or with the omission of. See Le Petit Robert Dictionnaire de la Langue Francaise
(2000), pp. 185-186 and Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), p.
120.
455 In the context of the objective assessment required under Article 11 of the DSU, the relevant
provision under Article 11.1(c) of the Agreement on Safeguards (i.e. the provision of the GATT 1994 "other
than" Article XIX) depends on the specific circumstances of the dispute, including the measures and claims at
issue, legal provisions raised by the parties, as well as the relevant evidence and arguments submitted by the
parties.
456 See section 7.9 below.

measures were adopted as well as any relevant notifications or statements to the official bodies of
the WTO.457
7.102. The Panel takes note of the United States' arguments in relation to the meaning of the term
"sought" in Article 11.1(c) of the Agreement on Safeguards, which are related to the United States'
contention that, based on Article XIX:2 of the GATT 1994, formal notification of safeguard measures
to the WTO is a "condition precedent" to the applicability of safeguard disciplines. 458 As detailed
below, the Panel considers the manner in which the measures were raised before the WTO, including
notifications to relevant WTO bodies or committees, as part of the assessment of the evidence and
arguments submitted on all relevant aspects of the measures at issue in this dispute. The Panel does
not consider it necessary for the purposes of this dispute to address in further detail the
United States' arguments on WTO notification being a "condition precedent" for the applicability of
safeguard disciplines.
7.103. Finally, the Panel notes that the parties have referred to certain aspects of the negotiating
history of the Agreement on Safeguards in support of their respective positions. Under Article 32 of
the Vienna Convention, recourse to supplementary means of interpretation, including the
preparatory work of a treaty, may be had either to confirm the meaning resulting from the
application of Article 31, or to determine the meaning when the interpretation according to Article 31
leaves the meaning ambiguous or o bscure or leads to a result which is manifestly absurd or
unreasonable. The Panel does not consider that the application of Article 31 of the Vienna Convention
to the interpretation of Article 11.1(c) of the Agreement on Safeguards leaves the meaning of th e
provision ambiguous or obscure, nor does the Panel find that it leads to a result which is manifestly
absurd or unreasonable. Nevertheless, the Panel has examined the negotiating history of the
provision in order to confirm the meaning resulting from the application of Article 31 of the
Vienna Convention. As detailed in Appendix A to this Report , the Panel's review of the negotiating
history of Article 11.1(c) of the Agreement on Safeguards confirms the conclusions reached by the
Panel regarding the interpretation of that provision.
7.104. Based on the foregoing, the Panel will assess the applicability of the Agreement on
Safeguards in this dispute according to whether the measures at issue were sought, taken, or
maintained pursuant to Article XXI of the GATT 1994 within the meaning of Article 11.1(c) of the
Agreement on Safeguards.
7.8.3 Assessment of the measures at issue
7.105. The United States adopted the measures at issue under Section 232 and the related
procedures set out in Title 15, Part 705 of the Code of Federal Regulations.459 According to the terms
of the domestic legislation, Section 232 concerns actions taken by the United States for

457 The Panel notes that the Appellate Body identified various relevant factors for the determination of
whether measures constitute safeguard measures under Article XIX of the GATT 1994. In this dispute, the
relevant inquiry is directed by the terms of Article 11.1(c) to a provision other than Article XIX of the
GATT 1994. Nevertheless, there is a broad parallel in both contexts of distinguishing questions of legal
applicability from those concerning legal consistency and, for the former, making an objective examination of
the specific measures at issue according to the relevant provision of the GATT 1994 upon which to determine
the applicability of the Agreement on Safeguards. (See Appellate Body Report, Indonesia – Iron or Steel
Products, para. 5.60).
458 United States' second written submission, sections IV.B.1 ("Article 11.1(c) Supports That Invocation
is a Condition Precedent for … a Member's exercise of its right to take action under Article XIX and Application
of Safeguards Rules") and IV.B.2 ("Other Provisions of the Agreement on Safeguards Also Support that Notice
is a Condition Precedent for Action Under Article XIX"). For the various terms used by the United States to
describe the "condition precedent" for the applicability of safeguard disciplines, see United States' second
written submission, para. 145 ("notice is a condition precedent to taking action under Article XIX");
paras. 147-148 ("[t]he text of Article XIX:2 explicitly sets out a requirement to invoke the provision through
notice as a condition precedent to action under Article XIX:1… [w]ithout such notice, a Member is not seeking
legal authority pursuant to Article XIX"); para. 172 ("notice under Article XIX:2 is a fundamental, condition
precedent to a Member's exercise of its right to take action under Article XIX and the application of safeguards
disciplines"); and para. 203 ("invocation through written notice is a condition precedent to a Member's exercise
of its right to take action under Article XIX and the application of safeguards rules to that action").
459 See section 2.1 above.

"[s]afeguarding national security". 460 Moreover, Section 232 authorizes the US Secretary of
Commerce to investigate the effects of imports of an article on US national security461, in consultation
with the Secretary of Defense and other appropriate officers of the United States.462 If the Secretary
of Commerce determines that an article is being imported into the United States in such quantities
or under such circumstances as to threaten to impair the national security, the US President may
adjust the imports of that article into the United States.463 In this respect, Section 232 directs the
US Secretary of Commerce and the US President t o give consideration among other factors to the
domestic production needed for projected national defence and the impact of foreign competition on
the economic welfare of domestic industries essential to US national security.464
7.106. The US Secretary of Commerce commenced investigations under Section 232 to determine
the effects of imports of certain steel and aluminium products on US national security in April
2017.465 The findings of these investigations were published in January 2018 in the Steel and
Aluminium Reports, where the US Secretary of Commerce determined that present quantities of
steel and aluminium imports were "weakening [the United States'] internal economy" and therefore
"threaten to impair" its national security. 466 According to these repo rts, rising levels of imports of
foreign steel and aluminium place at substantial risk the capacity of domestic industries to produce
steel and aluminium for critical infrastructure and national defence467, especially in times of national
emergencies.468 The reports recommend corrective actions against imports in the form of tariffs and
quotas with a view to improve domestic capacity utilization and stabilize US production at the level
required for its security needs.469
7.107. The measures at issue in this dispute o n imports of steel and aluminium into the
United States are based on the abovementioned findings and recommendations by the US Secretary
of Commerce .470 The Presidential Proclamations concurring with these findings and
recommendations describe the measures as "necessary" and "appropriate" to address the
threatened impairment of national security.471 Presidential Proclamations 9704 and 9705 providing
for additional duties on steel and aluminium imports state that "[t]his relief will … revive idled
facilities, open closed [smelters and] mills, preserve necessary skills by hiring new [steel and
aluminium workers], and maintain or increase production", which in turn will "reduce [the
United States'] need to rely on foreign producers for [steel and aluminium] and ensure that domestic
producers can continue to supply all the [steel and aluminium] necessary for critical industries and

460 Section 232, (Exhibit CHE-1 and USA-1), § 1862. Title 15, Part 705 of the Code of Federal
Regulations sets out the procedures by which the US Department of Commerce commences and conducts an
investigation "to determine the effect on the national security of the imports of any article". (See Section 232
regulations, (Exhibit CHE-21 and USA-2), § 705.2).
461 Section 232, (Exhibit CHE-1 and USA-1), § 1862(b)(1)(A).
462 Section 232, (Exhibit CHE-1 and USA-1), §§ 1862(b)(2)(A)(i) and b(2)(A)(ii).
463 Section 232, (Exhibit CHE-1 and USA-1), § 1862(c)(1)(A).
464 Section 232, (Exhibit CHE-1 and USA-1), § 1862(d); Section 232 regulations, (Exhibit CHE-21 and
USA-2), § 705.4.
465 Steel Report, (Exhibit CHE-2 and USA-7), p. 18; Aluminium Report, (Exhibit CHE-5 and USA-8), p.
18. See also sections 2.1.2 and 2.1.3 above.
466 Steel Report, (Exhibit CHE-2 and USA-7), p. 55; Aluminium Report, (Exhibit CHE-5 and USA-8), p.
104.
467 Steel Report, (Exhibit CHE-2 and USA-7), p. 55; Aluminium Report, (Exhibit CHE-5 and USA-8), p.
104.
468 Steel Report, (Exhibit CHE-2 and USA-7), pp. 55-56; Aluminium Report, (Exhibit CHE-5 and USA-8),
p. 105 (also noting that rising imports have placed at risk the capability of domestic industries to "quickly shift
production capacity used for commercial products to defense and critical infrastructure production that
provides the United States a surge capability that is vital to national security, especially in an unexpected or
extended conflict or national emergency").
469 Aluminium Report, (Exhibit CHE-5 and USA-8), pp. 104-105. See also Steel Report, (Exhibit CHE-2
and USA-7), p. 58 (recommending quotas or tariffs on steel imported into the United States to increase
domestic capacity utilization and to keep the domestic steel industry financially viable and able to meet US
national security needs).
470 See e.g. Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11619 and Presidential
Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11626 noting that the US President concurs with the
Secretary's findings in the Steel and Aluminium Reports and has considered the recommendations in these
reports.
471 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHE-8 and USA-9), p. 11626.

national defense".472 These proclamations further describe the additional duties as "an important
first step in ensuring the economic vi ability" of the United States' domestic steel and aluminium
industry, without which "the industry will continue to decline, leaving the United States at risk of
becoming reliant on foreign producers … to meet [its] national security needs".473 These Presidential
Proclamations thus describe the national security objectives that the United States seeks to achieve
by adopting measures against a "high level of imports".474
7.108. The national security considerations expressed in the domestic legal instruments and acts
underlying the measures at issue are also observable in the application of the additional duties on
steel and aluminium imports, including their country and product scope. In this regard, Presidential
Proclamations 9704 and 9705 recognize that the United States may remove or modify the restriction
on steel and aluminium imports from a country if it determines that imports from the country no
longer threaten to impair its national security.475 The United States exempted various countries from
the additional duties on steel and aluminium imports following such determinations476, based on its
"important security relationships" and "security, defense, and intelligence partnership[s]" with these
countries as well as their "shared concern about global excess capacity, a circumstance that is
contributing to the threatened impairment of [US] national security". 477 The Panel also notes that
the additional duties are applied to products that are determined by the relevant domestic authorities
of the United States to be important for its military systems and critical infrastructure.478
7.109. These considerations indicate that the measures at issue were designed and expected to
operate in relation to the United States' determination of a threat to its national security under the
relevant domestic laws. In this regard, the Panel notes several other relevant aspects of the
measures at issue and their application supporting this conclusion. For example, Presidential
Proclamations 9740, 9758 and 9759 introduce quotas restricting steel and aluminium imports from
certain countries to provide "effective, long-term alternative means" to address their contribution to
the threat to national security as determined by the United States.479 These quotas are applied only
in respect of countries with which the United States has identified "important security
relationships".480 Presidential Proclamations 9704, 9705, 9776, and 9777 set out a product exclusion
process to provide relief from the additional duties and import quotas based on "specific national

472 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHE-8 and USA-9), p. 11626.
473 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHE-8 and USA-9), pp. 11626-11627.
474 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHE-8 and USA-9), p. 11626.
475 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHE-8 and USA-9), p. 11626 (further noting that the United States may make corresponding
adjustments to the additional duties applicable to other countries as its national security interests require).
476 See sections 2.2.1.2 and 2.2.2.2 above for a list of the exempted countries.
477 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11620; Presidential Proclamation
9705, (Exhibit CHE-8 and USA-9), p. 11626; Presidential Proclamation 9710, (Exhibit CHE-14 and USA-12), pp.
13355-13356; Presidential Proclamation 9711, (Exhibit CHE-9 and USA-11), pp. 13361-13362.
478 Steel Report, (Exhibit CHE-2 and USA-7), Appendix H and Appendix I; Aluminium Report, (Exhibit
CHE-5 and USA-8), pp. 24-39. See also Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p.
11623 (providing for additional duties on imports of unwrought aluminium; aluminium bars, rods and profiles;
aluminium wires; aluminium plates, sheets, strips and foil; aluminium tubes, pipes and tube or pipe fittings;
and aluminium castings and forgings) and Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), p.
11629 (providing for additional duties on imports of flat-rolled steel products; steel bars and rods; steel wire;
steel sheet piling; steel rails; steel fish-plates and sole plates; steel tubes, pipes and hollow profiles; steel
ingots; products of stainless steel; and other products of iron or steel). See also Steel Report, (Exhibit CHE-2
and USA-7), pp. 21-22; Aluminium Report, (Exhibit CHE-5 and USA-8), p. 20.
479 Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13), pp. 20683-20684; Presidential
Proclamation 9758, (Exhibit CHE-16 and USA-16), p. 25850; and Presidential Proclamation 9759, (Exhibit CHE-
11 and USA-15), pp. 25857-25858. Moreover, these proclamations follow Presidential Proclamations 9710 and
9711 discussing the appropriate means to ensure that exemptions from the additional duties do not undermine
the national security objectives of the duties and noting that without "satisfactory alternative means addressing
long-term solutions… the industry will continue to decline, leaving the United States at risk of becoming reliant
on foreign producers of [steel and aluminium] to meet [its] national security needs". (See Presidential
Proclamation 9710, (Exhibit CHE-14 and USA-12), pp. 13356-13357 and Presidential Proclamation 9711,
(Exhibit CHE-9 and USA-11), pp. 13362-13363).
480 See Presidential Proclamation 9740, (Exhibit CHE-10 and USA-13), p. 20683; Presidential
Proclamation 9758, (Exhibit CHE-16 and USA-16), p. 25849; and Presidential Proclamation 9759, (Exhibit CHE-
11 and USA-15), p. 25857.

security considerations".481 Moreover, the Presidential Proclamations discussed above indicate that
the measures at issue may be modified or removed based on monitoring by the US Secretary of
Commerce an d review of "the status of [steel and aluminium] imports with respect to national
security".482 The Panel also considers relevant the procedures under which the measures were
adopted and applied, and in particular the consultations carried out with departments of government
such as the US Department of Defense in relation to certain criteria for determining effects of imports
on national security.483
7.110. The Panel further notes that the national security considerations described above are
reflected in notifications and statements made by the United States before various official bodies of
the WTO both prior to and following the adoption of the measures at issue. In a meeting of the WTO
Council of Goods on 10 November 2017, before completing its Section 232 investigations into steel
and aluminium imports, the United States noted that these investigations "were being conducted by
the Bureau of Industry and Security (BIS), a Department of the US Commerce Agency". The
United States further remarked that the purpose of these investigations was to "determine the effect
of steel and aluminium imports on US national security, and whether the global excess capacity
problem in those industries was threatening the ability of the United States to meet its national
security needs".484
7.111. In subsequent discussions at the WTO, the United States explicitly referred to Article XXI of
the GATT 1994 in connection with the measures on steel and aluminium under Section 232. Shortly
after Presidential Proclamations 9704 and 9705 introduced t he additional duties discussed above,
the United States provided information concerning these proclamations in a meeting of the WTO
Council for Trade in Goods. At this meeting, the United States referred to "the findings and
recommendations in investigatio ns concerning the impact of steel and aluminium imports on US
national security" and indicated that it was providing this information "pursuant to Section 232 of
the Trade Expansion Act of 1962, as amended, and consistent with the Decision Concerning
Article XXI of the General Agreement taken by the GATT Council on 30 November 1982".485 In a
communication shortly thereafter to the Committee on Safeguards, the United States responded to
a request for consultations under Article 12.3 of the Agreement on Safeguards and referred to
information it had provided to the WTO Council for Trade in Goods "consistent with the Decision
Concerning Article XXI of the General Agreement taken by the GATT Council on
30 November 1982".486

481 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), p. 11621; Presidential Proclamation
9705, (Exhibit CHE-8 and USA-9), p. 11627; Presidential Proclamation 9776, (Exhibit CHE-24 and USA-19), p.
45020; and Presidential Proclamation 9777, (Exhibit CHE-23 and USA-18), p. 45026. See also the March
Interim Final Rule, (Exhibit CHE-20 and USA-20), p. 12111 and the September Interim Final Rule, (Exhibit
CHE-22 and USA-21), p. 46058 (explaining that this criterion allows the US Department of Commerce, in
consultation with other parts of the US Government as warranted, to consider impacts on US national security
that may result from not approving an exclusion and that the demonstrated concern with US national security
would need to be tangible, clearly explained and would be ultimately determined by the US Government).
482 Presidential Proclamation 9704, (Exhibit CHE-13 and USA-10), pp. 11621-11622; Presidential
Proclamation 9705, (Exhibit CHE-8 and USA-9), p. 11628. See also Presidential Proclamation 9740, (Exhibit
CHE-10 and USA-13), p. 20684; Presidential Proclamation 9758, (Exhibit CHE-16 and USA-16), p. 25850; and
Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15), p. 25858. The Panel notes that the measures
applicable to imports from certain countries have been modified under this authority. (See e.g. Presidential
Proclamation 9772, (Exhibit CHE-12); Presidential Proclamation 9893, (Exhibit CHE-74 and USA-232);
Presidential Proclamation 9894, (Exhibit CHE-73 and USA-233); Presidential Proclamation 9980, (Exhibit CHE-
72 and USA-225); Presidential Proclamation 10060, (Exhibit CHE-75 and USA-234); and Presidential
Proclamation 10064, (Exhibit CHE-76 and USA-235)).
483 See Steel Report, (Exhibit CHE-2 and USA-7), pp. 18-20 and Appendices E-G; Aluminium Report,
(Exhibit CHE-5 and USA-8), pp. 18-19 and Appendices A-B. See also Presidential Proclamation 9704, (Exhibit
CHE-13 and USA-10), Presidential Proclamation 9705, (Exhibit CHE-8 and USA-9), Presidential Proclamation
9758, (Exhibit CHE-16 and USA-16); and Presidential Proclamation 9759, (Exhibit CHE-11 and USA-15)
(directing the US Secretary of Commerce to consider adjustments to the additional duties and import quotas in
consultation with the Secretary of Defense).
484 Council for Trade in Goods, Minutes of the Meeting held on 10 November 2017, G/C/M/130, (Exhibit
USA-80), pp. 26-27.
485 Council for Trade in Goods, Minutes of the Meeting held on 23 and 26 March 2018, G/C/M/131,
(Exhibit USA-81), pp. 26-27.
486 Committee on Safeguards, Communication from the United States, G/SG/168, (Exhibit USA-82),
pp. 1-2 and fn 2.

7.112. In a meeting of the WTO General Council on 8 May 2018, the United States referred to "the
reasons underlying the United States' defense of critical national security interests" and recalled the
Presidential Proclamations under Section 232 "determining that tariffs are necessary to adjust
imports of steel and aluminum articles that threaten to impair the national security of the
United States". The United States further referred at that meeting to having "previously informed
Members about the proclamations issued by the President pursuant to Section 232 of the Trade
Expansion Act of 1962, as amended". The United States additionally referred to its "statement at
the Council for Trade in Goods meeting on March 23 – a statement we provided consistent with the
Decision Concerning Article XXI of t he General Agreement taken by the GATT Council on
30 November 1982".487 At a meeting of the DSB following the complainant's request for
establishment of a panel in this dispute, the United States referred to the determination that
"imports of steel and aluminum threaten to impair U.S. national security".488
7.113. On 28 September 2018, the United States notified import quotas on steel products from the
Republic of Korea , Argentina, and Brazil, and aluminium products from Argentina to the WTO
Committee on Market Acce ss. In this notification, the United States listed Article XXI of the
GATT 1994 as the "WTO Justification and Grounds for Restriction".489
7.114. Based on the foregoing evidence, the Panel considers that a central aspect of the design and
application of the measures at issue is their relation to the United States' determination of a threat
to its national security under the relevant domestic laws. The national security considerations of the
United States are manifest in the application, modification, and removal o f the additional duties,
quotas, and exemptions discussed above. Moreover, this aspect of the measures was emphasi zed
and explicitly linked to Article XXI of the GATT 1994 by the United States in a series of notifications
and statements to various official bodies of the WTO. The Panel considers significant the indications
at both the domestic and multilateral levels that the measures at issue related to the United States'
determination of a threat to its national security and the explicit references to Arti cle XXI of the
GATT 1994 as the legal basis under the covered agreements pursuant to which the measures were
sought, taken, or maintained. 490 While the domestic legal status or statements by a Member to
official WTO bodies are not determinative of the legal characterization of measures under the covered
agreements in dispute settlement, the Panel considers such evidence to be relevant within the
context of an objective assessment under Article 11.1(c) of the Agreement on Safeguards. This is
particularly so where there is evidence contemporaneous with the adoption of the measures that is
confirmed by other relevant evidence of the measures' design and application. In this dispute, the
features of the measures outlined above indicate that the United States' determination of a threat
to its national security under Section 232 is a central aspect of the measures with respect to their
legal characterization as being sought, taken, or maintained pursuant to Article XXI of the
GATT 1994.491
7.115. Regarding the applicabil ity of Article XIX of the GATT 1994 and the Agreement on
Safeguards, Switzerland refers to the findings in the Steel and Aluminium Reports pertaining to the
adverse impact of imports on domestic steel and aluminium industries of the United States. In

487 Statement dated 8 May 2018 of the Deputy US Trade Representative and US Permanent
Representative to the WTO, WTO General Council, (Exhibit USA-83), p. 3 (further noting that the United States
did not take action pursuant to Section 201 of the Trade Act of 1974, which is the law under which the
United States imposes safeguard measures).
488 Statements dated 29 October 2018, 21 November 2018, and 4 December 2018 of the United States,
WTO Dispute Settlement Body (CHE-35 (excerpt) and USA-84 (full version)). The United States further stated
as follows at this meeting with respect to Article XXI of the GATT 1994 and the measures at issue:
The United States has given detailed explanations that the measures at issue are justified under
Article XXI of the GATT 1994. In particular, we have explained that these measures are
necessary to address the threatened impairment that these imports of steel and aluminum
articles pose to U.S. national security.
489 Committee on Market Access, Notification Pursuant to the Decision on Notification Procedures for
Quantitative Restrictions (G/L/59/Rev.1), G/MA/QR/N/USA/4, (Exhibit USA-85), p. 6.
490 Given the consistent indications both prior and subsequent to the adoption of the measures at issue,
the Panel finds support for the measures being "sought, taken or maintained" within the meaning of
Article 11.1(c). The Panel notes in this regard the disjunctive nature of these requirements and does not
consider it necessary in the circumstances of this dispute to make separate determinations as to which
evidence reflects the measures having been "sought", "taken", or "maintained" pursuant to a provision of the
GATT 1994 other than Article XIX.
491 See e.g. Appellate Body Reports, China – Auto Parts, para. 171; Indonesia – Iron or Steel Products,
para. 5.60.

particular, Switzerland highlights that the reports identify increased imports of steel and aluminium
to the United States, determine that there was injury to the domestic steel and aluminium industries
due to increased imports, and examine such injury by refer ence to factors that are typically
associated with a finding under Article 4.2(a) of the Agreement on Safeguards.492
7.116. The Panel notes that the findings in the Steel and Aluminium Reports pertaining to the state
of the United States' domestic steel and alumi nium industries, including the decrease in domestic
production, high import penetration, low -capacity utilization and declining employment, are made
in the context of the determination by the US Secretary of Commerce that steel and aluminium are
important to the United States' national defen ce requirements and critical infrastructure sectors.
These reports discuss the displacement of domestic steel and aluminium by imports in relation to
the risk that the United States' domestic industries will be rendered incapable of meeting its national
security needs, especially in times of national emergencies. The Steel and Aluminium Reports also
recall the direction under Section 232 that the relationship between the weakening of the
United States' internal economy an d impairment of its national security shall be determined by
reference to factors including "any substantial unemployment, decrease in revenues of government,
loss of skills or investment, or other serious effects". 493 The reports recommend measures to
increase the capacity utilization of the United States' domestic industries with the specific objective
of enabling them to meet projected national security needs.494
7.117. Viewed in their context, the findings in the Steel and Aluminium Reports confirm that the
aspects of the measure s most central to their legal characterization under Article 11.1(c) of the
Agreement on Safeguards concern the national security considerations as reflected in Section 232
and reiterated in the relevant domestic legal acts and instruments. The examination in the Steel and
Aluminium Reports of the state of the domestic steel and aluminium industries is an element of the
United States' determination of a threat to its national security under the relevant domestic laws.
The Panel considers that it would be improper to assess such factors in isolation from the threat to
national security that was determined to exist under Section 232 on the basis of t hose and other
factors.
7.8.4 Conclusion
7.118. In conclusion, the evidence before the Panel in relation to the design and application of the
measures at issue indicates that the measures were sought, taken, or maintained pursuant to
Article XXI of the GATT 1994. Accordingly, the measures were sought, taken, or maintained pursuant
to a provision of the GATT 1994 other than Article XIX within the meaning of Article 11.1(c) of the
Agreement on Safeguards.
7.119. The Panel's assessment of the measures being under the purview of Article XXI of the
GATT 1994 is without prejudice to the consistency of the measures with the specific terms and
requirements of Article XXI. The Panel recalls that its conclusions under Article 11.1(c) pertain solely
to the issue of applicabili ty of the Agreement on Safeguards rather than the consistency of the
measures at issue with the requirements of the other provision, namely Article XXI of the
GATT 1994, pursuant to which the measures were sought, taken, or maintained.

492 Switzerland's first written submission, section IV.D.1.
493 Section 232, (Exhibit CHE-1 and USA-1), § 1862(d); Section 232 regulations, (Exhibit CHE-21 and
USA-2), § 705.4.
494 See Aluminium Report, (Exhibit CHE-5 and USA-8), p. 107 ("import restrictions could help address
the threat to U.S. national security… [Q]uotas or tariffs would be designed, even after any exemptions (if
granted), to enable U.S. aluminum producers to utilize an average of 80 percent of their production capacity.
The quotas and tariffs described below should be sufficient to enable U.S. aluminum producers to operate
profitably under current market prices for aluminum and will allow them to reopen idled capacity") and 108 ("A
worldwide quota …would help ensure the viability of those U.S. producers to meet national security needs").
See also Steel Report, (Exhibit CHE-2 and USA-7), p. 58 ("Due to the threat of steel imports to the national
security, as defined in Section 232, the Secretary recommends that the President take immediate action by
adjusting the level of imports through quotas or tariffs on steel imported into the United States, as well as
direct additional actions to keep the U.S. steel industry financially viable and able to meet U.S. national
security needs. The quota or tariff imposed should be sufficient, after accounting for any exclusions, to enable
the U.S. steel producers to be able to operate at about an 80 percent or better of the industry's capacity
utilization rate based on available capacity in 2017").

7.9 Article XXI(b) of the GATT 1994
7.9.1 Introduction
7.120. The United States invokes Article XXI(b) of the GATT 1994 in relation to the measures at
issue as "action[s] which [the United States] considers necessary for the protection of its essential
security interests". The Panel will addr ess the United States' invocation of Article XXI(b) of the
GATT 1994 in relation to whether the measures found to be inconsistent with Articles I:1, II:1, and
XI:1 of the GATT 1994 are "actions" falling within the scope of Article XXI(b) of the GATT 1994.
7.121. The Panel will first address the parties' interpretive disagreement on the extent to which the
terms of Article XXI(b) of the GATT 1994 permit review of a Member's invocation of that provision
in proceedings under the DSU. In doing so, the Panel will addr ess specific issues of interpretation
contested by the parties, including the United States' arguments as to the "self-judging" nature and
"non-justiciability" of Article XXI(b) of the GATT 1994, in accordance with Article 3.2 of the DSU and
customary rules of interpretation of public international law. The Panel will then assess the evidence
and arguments submitted by the parties in relation to the measures found to be inconsistent with
provisions of the GATT 1994 in light of the conclusions reached regard ing the interpretation of
Article XXI(b) of the GATT 1994.
7.9.2 Interpretation of Article XXI(b) of the GATT 1994 in accordance with Article 3.2 of
the DSU
7.122. Article XXI of the GATT 1994 is entitled "Security Exceptions" and provides:
Nothing in this Agreement shall be construed
(a) to require any contracting party to furnish any information the disclosure of which
it considers contrary to its essential security interests; or
(b) to prevent any contracting party from taking any action which it considers necessary
for the protection of its essential security interests
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such
traffic in other goods and mater ials as is carried on directly or indirectly for the
purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any contracting party from taking any action in pursuance of it s
obligations under the United Nations Charter for the maintenance of international peace
and security.
7.123. The United States submits that the Panel should limit its findings in this dispute to
recognizing the invocation of Article XXI(b) because "[t]he text of [the provision], in its context and
in the light of the agreement's object and purpose, establishes that the exception is self-judging."495
According to the United States, "[t]he self -judging nature of … Article XXI(b) is demonstrated by
that provision's reference to actions that the Member 'considers necessary' for the protection of its
essential security interests." 496 Consequently, "the only requirement for the Member invoking
Article XXI is for the Member to consider that a particular action is necessary to protect its essential
security interests in any of the circumstances identified in Article XXI(b)."497 The United States
maintains that this requirement is met "once the Member indicates, in the context of dispute

495 United States' first written submission, para. 23.
496 United States' first written submission, para. 25.
497 United States' response to Panel question No. 33.

settlement, that it has ma de such a determination" that it "consider[s] one or more of the
circumstances set forth in Article XXI(b) to be present".498
7.124. A premise of the United States' characterization of Article XXI(b) as "self-judging" is that,
based on "the text and grammatical s tructure" of the provision, "the phrase 'which it considers'
qualifies all of the terms in the single relative clause that follows the word 'action'". 499 According to
the United States, this "single relative clause" in Article XXI(b) "begins with 'which it considers
necessary' and ends at the end of each subparagraph" and "describes the situation which the
Member 'considers' to be present when it takes such 'action'".500 The United States argues from this
premise that, "[b]ecause the relative clause describing the action begins with 'which it considers',
the other elements of this clause are committed to the judgment of the Member taking the action."501
The United States thus posits an "overall grammatical structure" of Article XXI(b) according to which
a panel may not "determine, for itself, whether a security interest is 'essential' to the Member in
question, or whether the circumstances described in one of the subparagraphs exists".502
7.125. Switzerland contests the interpretive and grammatical basis of the United States' argument
and emphasizes the objective review in dispute settlement proceedings of terms in Article XXI(b)
that are not qualified by the phrase "which it considers". 503 Switzerland thus disputes the
characterization of Article XXI(b) as "self-judging" and contends that the measures are not justified
under this provision based on the arguments and evidence before the Panel. In particular,
Switzerland argues that the United States' interpretation fails to give effective meaning to the
subparagraphs of Article XXI(b) and is incompatible with the requirements of the DSU concerning
the independent review of matters raised under the covered agreements.504
7.126. The Panel recalls that it is required to address the United States' invocation of Article XXI(b)
of the GATT 1994 in accordance with Article 3.2 of the DSU and the customary rules of interpretation
of public international law.505 A threshold point of interpretive disagreement between the parties is
the extent to which the terms of Article XXI(b) of the GATT 1994 permit review of a Member's
invocation of that provision by a panel established under the DSU. While the parties refer t o
numerous aspects of treaty interpretation in relation to this question, both parties base their
positions primarily on the terms of Article XXI(b) of the GATT 1994 and the rule of interpretation set
out in Article 31(1) of the Vienna Convention that "[a] treaty shall be interpreted in good faith in
accordance with the ordinary meaning given to the terms in their context and in the light of its object
and purpose."506 As noted above507, this rule of interpretation forms part of the "customary rules of
interpretation of public international law" referred to in Article 3.2 of the DSU. 508 Accordingly, the
Panel will examine the ordinary meaning of the terms of Article XXI(b) of the GATT 1994 in their
context and in light of the treaty's object and purpose, focusi ng on the parties' disagreement as to
whether the terms of the provision permit review of its invocation in proceedings under the DSU.
7.127. Pursuant to the security exceptions under Article XXI of the GATT 1994, "[n]othing in this
Agreement shall be construed to require" a Member "to furnish any information" described under
paragraph (a) or "to prevent" a Member "from taking any action" described under paragraphs (b) or
(c) of that provision. The three paragraphs (a) to (c) are separated by semicolons followed by the

498 United States' response to Panel question No. 52.a; see also response to Panel question Nos. 35 and
38; second written submission, para. 26.
499 United States' second written submission, paras. 7-8; see also ibid. para. 15 ("the ordinary meaning
of the terms of Article XXI(b) establishes that, contrary to the complainant's arguments, the word 'considers'
qualifies all the terms in the chapeau and the subparagraph endings of Article XXI(b)").
500 United States' response to Panel question No. 36.
501 United States' second written submission, para. 25; see also response to Panel question Nos. 39 and
40 ("The text reserves to the Member the judgment as to whether action is necessary in one or more of those
circumstances for the protection of its essential security interests.").
502 United States' response to Panel question No. 37.
503 See Switzerland's response to Panel question Nos. 35-38; opening statement at the first meeting of
the Panel, paras. 30-73.
504 See e.g. Switzerland's opening statement at the first meeting of the Panel, paras. 19-29; second
written submission, paras. 136-148.
505 See section 7.1 above.
506 See Switzerland's response to Panel question No. 56; United States' response to Panel question
No. 56.
507 See para. 7.86 above. See also Appellate Body Reports, US – Gasoline, p. 17; India – Patents (US),
508 See e.g. Appellate Body Report, US – Gasoline, p. 17.

word "or" and Article XXI concludes in a full stop at the end of paragraph (c). Paragraph (b) of
Article XXI provides that the "action" that a Member is not prevented from taking is "any action
which [the Member] considers necessary for the protecti on of its essential security interests",
followed by three subparagraphs that are enumerated (i) to (iii). 509 These subparagraphs are
separated by semicolons and the word "or" appears after the semicolons at the end of paragraph
(a) and subparagraph (iii) of Article XXI(b).510
7.128. In providing for "any action" that "[n]othing in this Agreement shall be construed … to
prevent", Article XXI(b) establishes an exception to obligations under other provisions of the
GATT 1994. The "action" covered by this provision is one that a Member "considers necessary for
the protection of its essential security interests". Dictionary definitions of the term "consider" include
to "regard in a certain light or aspect, look upon as" or "think or take to be".511 Under Article XXI(b),
a Member must consider that its action is "necessary for" a defined purpose, namely "the protection
of its essential security interests". Dictionary definitions of "interest" include "the relation of being
involved or concerned as regards potential detriment or (esp.) advantage".512 The relevant interests
under Article XXI(b) pertain to "security", which may be defined as "the condition of being protected
from or not exposed to danger".513 The description of these security interests as "essential" indicates
the heightened significance of the security interests that Members are not prevented from taking
action to protect under Article XXI(b).514 As indicated by the possessive pronoun "its", the relevant
"security interests" are those of the Member taking action under Article XXI(b).515
7.129. Interpreting the terms of Article XXI(b) within the structure and context of the provision as
a whole, the Panel notes the textual separation and indentation under Article XXI of the three
paragraphs and a similar separation and indentation of the three subparagraphs under paragraph

509 The parties have used different terminology to refer to the different parts of Article XXI, including
"chapeau", "subparagraph", and "subparagraph ending". The Panel considers that such terminology is not
determinative of the proper interpretation so long as it is consistently applied in describing the provision.
510 The French and Spanish texts are similarly structured with minor differences, including a colon at the
end of paragraph (b) before the three subparagraphs. In addition, the Spanish text contains a colon after the
opening terms of Article XXI before paragraph (a), and in the French text the conjunction "ou" appears at the
beginning of paragraphs (b) and (c).
511 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 493. See also Le
Petit Robert Dictionnaire de la Langue Francaise (2000), p. 921 (defining "estimer" as "[a]voir une opinion sur"
(to have an opinion on), "considérer" (to consider), "croire" (to believe), "regarder" (to regard), or "penser" (to
think)); Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), p. 676 (defining
"estimar" as "creer" (to believe) or "hacer aprecio y estimación de alguien o de algo" (make appreciation or
estimation of someone or something)); The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.)
(Clarendon Press, 1993), (Exhibit USA-22), p. 485; Shorter Oxford English Dictionary, 6th edn, A. Stevenson
(ed.) (Oxford University Press, 2007), (Exhibit CHE-56), p. 496; Larousse, definition of "estimer",
https://www.larousse.fr/dictionnaires/francais/estimer/31188?q=estimer31111 (accessed 11 February 2020),
(Exhibit CHE-60); and Diccionario de la lengua española, definition of "estimar",
https://www.dle.rae.es/estimar?m=form (accessed 11 February 2020), (Exhibit CHE-61).
512 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 1400 (also defining
"interest" as "[a] thing that is of some importance to a person, company, state"). See also Le Petit Robert
Dictionnaire de la Langue Francaise (2000), p. 1340 (defining "intérêt" as "[c]e qui importe, ce qui convient
(en quelque domaine que ce soit)" (what matters or what suits in any domain)); Diccionario de la Lengua
Española, 22nd Edition (Real Academia Española, 2001), p. 874 (defining "interés" as "[i]nclinación del ánimo
hacia un objeto, una persona, una narración, etc." (inclination of mind towards an object, a person, a
narration, etc.)); and The New Shorter Oxford English Dictionary, 4th edn, L. Brown (ed.) (Clarendon Press,
1993), (Exhibit USA-22), p. 1393.
513 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 2734. See also Le
Petit Robert Dictionnaire de la Langue Francaise (2000), p. 2310 (defining "sécurité" as "[s]ituation, état
tranquille qui résulte de l'absence réelle de danger" (tranquil situation, state which results from the real
absence of danger)); Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), p.
1385 (defining "seguridad" as "[c]ualidad de seguro" and "seguro" as "[l]ibre y exento de todo peligro, daño o
riesgo" (free and exempt from all danger, damage or risk)); and The New Shorter Oxford English Dictionary,
4th edn, L. Brown (ed.) (Clarendon Press, 1993), (Exhibit USA-22), p. 2754.
514 Dictionary definitions of "essential" include "[t]hat is such in the absolute or highest sense" and
"[a]ffecting the essence of anything; significant, important". See also Le Petit Robert Dictionnaire de la Langue
Francaise (2000), p. 918 (defining "essentiel" as "[q]ui est absolument nécessaire" (absolutely necessary) or
"[l]e plus important" (the most important)); Diccionario de la Lengua Española, 22nd Edition (Real Academia
Española, 2001), p. 655 (defining "esencial" as "[s]ustancial", "principal", or "notable"); and The New Shorter
Oxford English Dictionary, 4th edn, L. Brown (ed.) (Clarendon Press, 1993), (Exhibit USA-22), p. 852.
515 The French and Spanish language versions similarly use the possessive pronouns "sa" and "su"
Lengua Española, 22nd Edition (Real Academia Española, 2001), p. 1424.

(b) of Article XXI. The introductory terms of Article XXI ("Nothing in this Agreement shall be
construed") form the beginning of a sentence with three alternative endings to this sentence in each
of the paragraphs (a) to (c). Under paragraph (b) of Article XXI, the enumerated subparagraphs (i)
to (iii) are alternative endings to the sentence following the terms "any action which it considers
necessary for the protection of its essential security interests". The punctuation and conjunctions
linking these various parts of Article XXI serve the function of listing the alternative endings to the
provision. These considerations indicate that Article XXI(b) forms part of, and provides in its own
subparagraphs, a list of alternative endings to form a sentence. Therefore, Article XXI(b) is to be
given meaning as a complete sentence with the enumerated subparagraphs (i) to (iii) representing
alternative endings to the sentence that begins "Nothing in this Agreement shall be construed".
7.130. In continuation of the sentence formed under Article XXI(b), subparagraphs (i) and (ii) begin
with the terms "relating to" and subparagraph (iii) begins with the terms "taken i n time of". The
terms "relating to" indicate a connection to the "materials" and "traffic" in subparagraphs (i) and
(ii), respectively, while the terms "taken in time of" indicate a temporal relationship to the
circumstances in subparagraph (iii). The Pane l understands these opening terms in each
subparagraph to qualify and describe the "action" referred to in Article XXI(b). This is confirmed in
the French and Spanish versions of Article XXI(b) in which the corresponding terms ("se rapportant"
and " appliquées" in French and " relativas" and " aplicadas" in Spanish) qualify nouns that are
feminine and plural translations of "any action" ("toutes mesures" in French and "todas las medidas"
in Spanish). 516 The relation of the opening terms of each subparagraph to the "action" in
Article XXI(b) is further supported by their parallel positioning in the text and their common function
of linking the remaining terms of each subparagraph to those in paragraph (b).
7.131. As a result, Article XXI(b) applies to actions "relating to" the "materials" and "traffic"
described in subparagraphs (i) and (ii), respectively, and to actions "taken in time of" the
circumstances referred to in subparagraph (iii). These subparagraphs provide alternative endings
that are an integral part of co mplete sentences formed under Article XXI(b). Moreover, there is no
textual indication that the sentence endings in the subparagraphs of Article XXI(b) are merely
illustrative or that Article XXI(b) may apply to actions other than those described in the
subparagraphs.517 These considerations indicate that the subparagraphs are exhaustive in

516 The Panel understands that the parties agree that the subparagraphs qualify and relate to the
"action" in Article XXI(b), notwithstanding some disagreement as to the precise basis for this conclusion. The
United States submits in this regard that, under "[t]he most natural reading" of Article XXI(b), subparagraphs
(i) and (ii) relate to a Member's "essential security interests" whereas subparagraph (iii) modifies "action" that
is "taken" by a Member. At the same time, the United States considers that "an interpretation that best
reconciles the idiosyncratic Spanish text with the English and French texts" is one in which the "action" is
modified by the terms following it and "all three subparagraph endings refer to 'any action which it considers'."
(United States' response to Panel question Nos. 39 and 40; see also second written submission, paras. 20-22).
Under this reading, the United States argues that the terms of the provision still form a "single relative clause"
in which the phrase "which it considers" modifies the entirety of the subparagraphs. (United States' response
to Panel question Nos. 41-43; United States' second written submission, paras. 93-94; United States' opening
statement at the second meeting of the Panel, paras. 8-9). Switzerland contests the grammatical basis of the
United States' argument on a "single relative clause" in Article XXI(b) and argues that the subparagraphs
qualify the term "action". (See e.g. Switzerland's response to Panel question Nos. 40 and 90).
For the purposes of resolving the contested issues of interpretation under Article XXI(b) in this dispute,
the Panel considers that it is sufficient to conclude that the term "action" is qualified by the subparagraphs, as
supported by the textual analysis in this section and the concordance of plural and feminine terms in the
French and Spanish versions of Article XXI(b). The Panel notes the United States' argument on the
reconciliation of texts under Article 33 of the VCLT relates to its contentions regarding a "single relative clause"
in Article XXI(b) and the "self-judging" nature of the provision, which the Panel addresses in this section in
accordance with Article 3.2 of the DSU and its mandate to make such findings as will assist the DSB in making
the recommendations or rulings provided for in the covered agreements. To the extent that the comparison of
authentic texts discloses any difference in meaning under Article 33(4) of the VCLT, the Panel considers that
the application of Articles 31 and 32 of the VCLT removes any such difference so as to resolve the contested
issues of interpretation in this dispute. Accordingly, the Panel does not consider it necessary for the purposes
of this dispute to address in further detail the parties' arguments on the reconciliation of authentic texts in
relation to the contested issues of interpretation under Article XXI(b) and its application to the measures at
issue in this dispute.
517 The subparagraphs of Article XXI(b) of the GATT 1994 may be contrasted with other provisions of
the covered agreements containing terms that explicitly indicate the illustrative nature of the provisions. (See
e.g. Article 2.2 of the TBT Agreement ("such legitimate objectives are, inter alia, national security
requirements …"); Article 3.5 of the Anti-Dumping Agreement ("factors which may be relevant [for determining
injury] include, inter alia, the volume and prices of imports …"); Article 1.1(a)(1) of the SCM Agreement ("a

establishing the circumstances in which a Member may take the "action which it considers necessary
for the protection of its essential security interests" within the meaning of Article XXI(b).518
7.132. Regarding the discretion of Members taking "action" under Article XXI(b), the parties
acknowledge the deference accorded to a Member's judgment for "any action which it considers
necessary for the protection of its essential securi ty interests".519 The terms "which it considers"
denote the consideration or judgment of the Member taking action under Article XXI(b)520, which is
further reinforced by providing that the Member shall not be prevented from taking "any" action
within the terms of the provision.521 Regarding the extent of discretion accorded by the terms "which
it considers", the parties disagree as to what precisely in Article XXI(b) is qualified by these terms
and the implications of such qualification for the review of a Member's invocation of Article XXI(b)
in dispute settlement proceedings. In particular, the parties dispute whether the three enumerated
subparagraphs (i) to (iii) of Article XXI(b) are qualified by the terms "which it considers" and,
relatedly, how to interpret those subparagraphs in accordance with the requirements of the DSU. A
specific question in this regard is whether, as argued by the United States and contested by
Switzerland522, the clause beginning with the relative pronoun "which" constitutes a "single relative
clause" that includes the terms in subparagraphs (i) to (iii) of Article XXI(b).
7.133. The Panel notes that the United States submits certain reference materials on English
grammar in support of its contention that the subparagraphs of Article XXI(b) form part of a "single
relative clause" that is entirely reserved to the judgment of the Member taking action under the
provision.523 Due to the grammatical dimension of the United States' arguments concerning the
"single relative claus e" in Article XXI(b), the Panel examines the grammatical construction of the
provision in relation to the contested issue of whether the subparagraphs of Article XXI(b) are
qualified by the terms "which it considers". The grammatical considerations raised by the parties
reinforce the Panel's preceding textual analysis of Article XXI(b) and are addressed insofar as they
may inform the assessment of the ordinary meaning of the terms in their context.
7.134. The grammatical analysis of Article XXI(b) for the purpose s of this dispute particularly
concerns the relationship between various phrases and clauses within the overall sentence structure
of the provision.524 As noted above, Article XXI begins a sentence that is completed by the terms of
paragraph (b) and the alternative endings in the subparagraphs thereunder. The opening terms of
Article XXI form a clause beginning with the terms "Nothing in this Agreement" and ending with the
terms "any action" in paragraph (b). This clause can be characterized as an independen t clause in

direct transfer of funds (e.g. grants, loans and equity infusion)"); and Annex I to the SCM Agreement
("Illustrative List of Export Subsidies")).
518 The Panel notes the agreement of parties as to the exhaustive nature of subparagraphs of
Article XXI(b), notwithstanding their disagreement on the implications of this for review in by a panel
established under the DSU. (See Switzerland's response to Panel question No. 39; United States' response to
Panel question Nos. 39 and 40). For example, the United States argues that the subparagraphs of
Article XXI(b) "form an integral part of the provision in that they complete the sentence begun in the chapeau,
establishing three exhaustive circumstances in which a Member may act". At the same time, the United States
maintains that "[t]he fact that these circumstances are exhaustive, however, does not mean that the Member's
invocation of Article XXI(b) is subject to review." (United States' response to Panel question Nos. 39 and 40).
519 Switzerland's response to Panel question No. 35; United States' response to Panel question No. 35.
520 The French and Spanish language versions of Article XXI(b) respectively use the phrases "qu'elle
estimera" and "que estime", indicating the estimation or consideration of the Member taking action under that
Article. See Le Petit Robert Dictionnaire de la Langue Francaise (2000), p. 824 and Diccionario de la Lengua
Española, 22nd Edition (Real Academia Española, 2001), p. 1270.
521 The terms corresponding to "any action" in Article XXI(b) in the French and Spanish versions are
"toutes mesures" and "todas las medidas", which may be understood as all measures. See Le Petit Robert
Dictionnaire de la Langue Francaise (2000), pp. 2551-2552; and Diccionario de la Lengua Española, 22nd
Edition (Real Academia Española, 2001), pp. 1485-1486.
522 Switzerland's response to Panel question No. 90.
523 The Panel notes that the parties' arguments concerning the grammar of Article XXI(b) focus on the
English text of the provision, and the Panel accordingly focuses its assessment on the English text and the
specific reference materials on English grammar submitted by the parties. The Panel does not make any
determination as to the status or authority of such reference materials but rather refers to them as relevant to
addressing the parties' arguments and describing the grammatical construction of Article XXI(b).
524 A "clause" in this context has been defined as "a group of words containing both a subject and a
predicate" that "functions as an element of a compound or complex sentence". A "phrase", by contrast, is "a
brief expression that consists of two or more grammatically related words but that does not constitute a
clause" (i.e. does not contain a noun and a verb). (Merriam-Webster's Guide to Punctuation and Style
(Merriam-Webster, Incorporated, 1995), (Exhibit USA-95), pp. 231 and 233).

that it contains a subject ("Nothing") and predicate ("shall be construed to prevent any Member
from taking any action") that can stand alone as a complete sentence.525
7.135. Following this independent clause, the relative pronoun "which" in Article XXI(b) begins a
relative clause that can be grammatically characterized as a dependent clause in the sense that it is
a group of words with a subject and verb that, unlike an independent clause, cannot stand on its
own as a complete sentence.526 This relative clause is grammatically subordinate to the independent
clause at the beginning of Article XXI that ends with the word "action" in paragraph (b), qualifying
the noun "action" to describe the action that a Member may take notwithstanding the obligations
under the GATT 1994.527 The pronoun "it" refers to the Member taking action under Article XXI(b)
and is the subject of this relative clause. The verb "considers" is followed by an immediate object
("necessary") that is further modified by a prepositional phr ase ("for the protection of") and noun
phrase ("its essential security interests").528
7.136. Each of the subparagraphs of Article XXI(b) begins with a participle that forms the beginning
of a participle phrase. 529 Specifically, subparagraphs (i) and (ii) begin wit h the present participle
"relating" and subparagraph (iii) begins with the past participle "taken". As these participles qualify
the noun "action"530, the terms following each participle function as adjectives describing the "action"
under Article XXI(b) and thus can be characterized as participle or adjectival phrases qualifying that
noun.531
7.137. The Panel does not consider that the grammatical construction of Article XXI(b) definitively
resolves whether the subparagraphs are qualified by the phrase "which it c onsiders" as part of a
"single relative clause" in the manner contended by the United States. The adjectival phrases in the
subparagraphs of Article XXI(b) could be regarded as continuations of the relative clause that begins
with the relative pronoun "which" in the sense that they provide alternative endings to the sentence
formed under the provision. However, this does not necessarily compel the conclusion that the
subparagraphs form part of a "single relative clause" in the sense argued by the United States that,
"[b]ecause the relative clause describing the action begins 'which it considers', the other elements
of this clause are committed to the judgment of the Member taking the action." 532 In support of its

525 See W. Strunk Jr. and E.B. White, The Elements of Style, 4th edn (Allyn and Bacon, 1999), (Exhibit
USA-226), pp. 91 and 93 (an "independent clause" is "[a] group of words with a subject and verb that can
stand alone as a sentence". A "predicate" refers to "[t]he verb and its related words in a clause or sentence"
and "expresses what the subject does, experiences, or is"). According to the United States, through the
language in this independent clause, "Article XXI(b) creates an exception to the obligations in the
[GATT 1994]". (See United States' response to Panel question No. 90).
526 S. Greenbaum, English Grammar (Oxford University Press, 1996), (Exhibit USA-93), p. 631 (a
"relative clause" is used to "postmodify nouns" and is "introduced by a relative item" such as the relative
pronoun "which"); R. Flesch and A.H. Lass, The Classic Guide to Better Writing (HarperPerennial, 1996),
(Exhibit USA-94), p. 69 ("[w]ho and which are called relative pronouns and introduce relative clauses". Using
these relative pronouns "[makes] an independent clause into a relative or dependent clause – a group of words
that can't stand by itself") (emphasis omitted); and W. Strunk Jr. and E.B. White, The Elements of Style, 4th
edn (Allyn and Bacon, 1999), (Exhibit USA-226), p. 91 (a "dependent clause" is "subordinate to an
independent clause in a sentence" and begins with either a subordinating conjunction or a relative pronoun
such as "which".) (emphasis omitted).
527 See e.g. S. Greenbaum, English Grammar (Oxford University Press, 1996), (Exhibit USA-93), p. 631
(a "relative clause" is used to "postmodify nouns"); Merriam-Webster's Guide to Punctuation and Style
(Merriam-Webster, Incorporated, 1995), (Exhibit USA-95), p. 233 (a subordinate clause "cannot stand alone,
and must be either preceded or followed by a main clause"); and W. Strunk Jr. and E.B. White, The Elements
of Style, 4th edn (Allyn and Bacon, 1999), (Exhibit USA-226), p. 95 (a "subordinate clause" is a "clause
dependant on the main clause in a sentence").
528 See Merriam-Webster's Guide to Punctuation and Style (Merriam-Webster, Incorporated, 1995),
(Exhibit USA-95), p. 232 (a "noun phrase" consists of "a noun and its modifiers" whereas a "prepositional
phrase" consist of "a preposition and its object"); W. Strunk Jr. and E.B. White, The Elements of Style, 4th edn
(Allyn and Bacon, 1999), (Exhibit USA-226), p. 93 (a prepositional phrase is "[a] group of words consisting of a
preposition, its object, and any of the object's modifiers").
529 See Merriam-Webster's Guide to Punctuation and Style (Merriam-Webster, Incorporated, 1995),
(Exhibit USA-95), p. 232 (a "participial phrase includes a participle and functions as an adjective"); W. Strunk
Jr. and E.B. White, The Elements of Style, 4th edn (Allyn and Bacon, 1999), (Exhibit USA-226), p. 93 (a
"participial phrase" is "[a] present or past participle with accompanying modifiers, objects, or complements").
530 See para. 7.130 above.
531 See Merriam-Webster's Guide to Punctuation and Style (Merriam-Webster, Incorporated, 1995),
(Exhibit USA-95), pp. 232-233 ("[a] participle phrase includes a participle and functions as an adjective". An
"adjective clause modifies a noun or pronoun and normally follows the word it modifies").
532 United States' response to Panel question No. 36.

view that, under the ordinary meaning of the E nglish text of Article XXI(b), subparagraphs (i) and
(ii) modify the phrase "essential security interests" 533, the United States refers to rules of English
grammar according to which "an adjectival phrase normally follows the word it modifies or is
otherwise placed as closely to the word it modifies". 534 According to this argument, the adjectival
phrases in the subparagraphs of Article XXI(b) would thus be part of the relative clause that begins
with the word "which" and would modify the terms in that relative clause that appear closest to the
subparagraphs.
7.138. The grammatical references cited by the United States do not indicate a cat egorical rule
according to which the relative clause in Article XXI(b) that begins "which it considers" must contain
and qualify any following adjectival phrase (i.e. those contained in the subparagraphs). Indeed, the
United States acknowledges a deviation in Article XXI(b) from the general rule it cites as "the
drafters departed from typical English usage" in subparagraph (iii) by placing the adjectival phrase
in that subparagraph next to "essential security interests", rather than next to the term modified by
that adjectival phrase ("action"). 535 With respect to the interpretation of Article XXI(b), the
qualification of the noun "action" in paragraph (b) by the participle phrases in the subparagraphs is
not solely determined by rigid application of grammar but follows from the ordinary meaning of
these terms, notwithstanding the existence of a relative clause in paragraph (b) between the noun
"action" and textually discrete adjectival phrases qualifying that "action".
7.139. The foregoing considerations reflect the potential limitations of a purely grammatical analysis
of the terms of Article XXI(b) and the significance of additional interpretive considerations in
ascertaining the ordinary meaning of the terms in their context. In addressing the parties' dispute
as to the interpretation of Article XXI(b) of the GATT 1994, the Panel is mindful of the principle of
effective treaty interpretation according to which all terms of a treaty are to be given meaning and
effect. Relatedly, the terms used in a treaty must not be reduced to redundancy or inutility.536 The
meaning and effect of the subparagraphs derives not only from considerations of grammatical
qualification but also the specific terms used within the overall structure of the provision.
Characterizing the subpar agraphs as part of a "single relative clause", even if grammatically
permissible, does not account for the ordinary meaning of actions "relating to" specified "materials"
and "traffic" and to actions "taken in time of" specified circumstances. Nor does it account for the
structure of Article XXI(b) and the textual separation of the subparagraphs into an enumerated list,
which corresponds to the role of the subparagraphs as alternative sentence endings that collectively
delimit the scope of Article XXI(b).
7.140. The Panel notes the United States' argument that Article XXI(b) "should be read as a single
clause and not as introducing separate conditions".537 Further, the United States cautions against an
approach that would "atomize this single relative clause" because "[a]rtificially separating the words
'which it considers necessary' from the language that immediately follows and continues the clause
– for the protection of – would erroneously interpret certain terms of Article XXI(b) in isolation."538
In the Panel's view, giving meaning and effect to the terms of the subparagraphs does not entail
reading them in isolation from the other terms of Article XXI(b) or "introducing separate conditions"
beyond what is reflected in the terms themselves.539 The terms of Article XXI(b) grant discretion to

533 See fn 516 above.
534 United States' response to Panel question No. 90 (referring to Merriam-Webster's Guide to
Punctuation and Style (Merriam-Webster, Incorporated, 1995), (Exhibit USA-176), pp. 232-233 ("[t]he
adjective clause modifies a noun or pronoun and normally follows the word it modifies" and "[u]sage problems
with phrases occur most often when a modifying phrase is not placed close enough to the word or words that it
modifies") and S. Benedict (ed.), Harper's English Grammar (Harper & Row, 1966), (Exhibit USA-96), p. 186
("adjectives and adverbial phrases, like adjectives and adverbs themselves should be placed as closely as
possible to the words they modify")).
535 United States' response to Panel question No. 90.
536 See e.g. Appellate Body Reports, US – Gasoline, p. 23; Japan – Alcoholic Beverages II, p. 12; India –
Patents (US), para. 45.
537 United States' response to Panel question No. 40.
538 United States' response to Panel question No. 36; see also second written submission, para. 8.
539 The United States draws the Panel's attention to commentaries of the International Law Commission
that, "[p]roperly limited and applied, the maxim [of effective treaty interpretation] does not call for an
'extensive' or 'liberal' interpretation in the sense of an interpretation going beyond what is expressed or
necessarily to be implied in the terms of the treaty." (United States' response to Panel question No. 47 citing
Draft Articles on the Law of Treaties with commentaries, Yearbook of the International Law Commission, 1966,
Vol. II, (Exhibit USA-23), p. 219). The Panel agrees that the rule of effectiveness requires that treaty

Members for actions that they "consider necessary for the protection of their essential security
interests" while also enumerating circumstances and conditions under which that discretion may be
exercised.540 The right to take action under Article XXI(b) thus consists of an express provision of
deference to a Member's consideration that is complemented by subparagraphs that must be given
meaning and effect according to the ordinary meaning of their terms.541
7.141. The Panel finds relevant context for the interpretive issues raised in this dispute in the
provisions of the GATT 1994 concerning consultation and potential recourse in cases of nullification
or impairment, as well as the rules and procedures of the DSU, no ting that these agreements are
both "integral parts of [the WTO] Agreement, binding on all Members". 542 Article XXII of the
GATT 1994 provides for consultation "with respect to any matter affecting the operation of this
Agreement" and Article XXIII of the GATT 1994 addresses nullification or impairment of "any benefit
accruing to [a Member] under this Agreement". The DSU elaborates upon these provisions 543 and
establishes the rules and procedures applicable to disputes concerning the covered agreements in
Appendix 1 of the DSU. Neither the relevant provisions of the GATT 1994 nor the DSU make any
explicit reference to Article XXI of the GATT 1994 or the potential review of its invocation in dispute
settlement proceedings.544 In the absence of any special or additional rule of dispute settlement
concerning Article XXI(b) of the GATT 1994, any review of its invocation must be carried out in
accordance with the DSU as a function of the terms of the provision interpreted in accordance with
customary rules of interpretation of public international law.
7.142. The Panel finds further guidance in the object and purpose as expressed in the preamble of
the WTO Agreement "to develop an integrated, more viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization
efforts, and all of the results of the Uruguay Round of Multilateral Trade Negotiat ions". In addition,
the preambles of both the WTO Agreement and the GATT 1994 refer to the desire to contribute to
the objectives of these agreements "by entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the
elimination of discriminatory treatment in international trade relations". 545 In furtherance of these
objectives, the WTO Agreement establishes a legal framework of rights and obligations that includes
the rules and procedures applicable to disputes concerning the covered agreements in the DSU. The
DSU "serves to preserve the rights and obligations of Members under the covered agreements" 546
and "[r]ecommendations or rulings made by the DSB shall be aimed at a chieving a satisfactory
settlement of the matter in accordance with the rights and obligations under [the DSU] and the
covered agreements".547 The rules and procedures of the DSU are thus intended to maintain the
balance between the rights and obligations o f the Members 548 as embodied in the covered
agreements and the relevant provisions thereof raised by the parties to proceedings under the DSU.

interpretation neither expand nor diminish the actual terms used. In the present case, the Panel does not
consider its interpretation to require any addition to the terms of Article XXI(b), as the effectiveness of the
subparagraphs derives from their existing terms read within the overall structure of the provision. (See
United States' response to Panel question No. 36, paras. 133-134 (arguing that the subparagraphs would
require additional terms at the beginning of the subparagraphs to establish their separation from the relative
clause beginning with "which it considers")).
540 The Panel notes that the scope of the circumstances set out in the subparagraphs does not detract
from a Member's consideration that action within the scope of the subparagraphs is necessary "for" a specific
purpose and that the Member's action pertain to "its" interest. (See United States' response to Panel question
No. 36).
541 In this sense, the United States' view that "the subparagraphs guide a Member's exercise of its rights
under this provision" is compatible with the delimiting function served by the subparagraphs to define the
circumstances and conditions under which action may be taken, "while reserving to the Member the judgment
whether particular action is necessary to protect its essential security interests". (United States' first written
submission, para. 34 (emphasis added); see also Response to Panel question No. 35).
542 Article II:2 of the WTO Agreement.
543 Pursuant to Article 3.2 of the DSU, "Members affirm their adherence to the principles for the
management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947, and the rules and
procedures as further elaborated and modified herein."
544 Appendix 2 of the DSU does not provide any special or additional rules applying to disputes in which
Article XXI of the GATT 1994 is invoked.
545 The preamble of the GATT 1994 refers to "international commerce" instead of "international trade
relations".
546 Article 3.2 of the DSU.
547 Article 3.4 of the DSU.
548 See Article 3.3 of the DSU.

7.143. The provision of relevance to this dispute, Article XXI(b) of the GATT 1994, establishes a
right to take action f or the protection of a Member's essential security interests and explicitly
enumerates conditions in the subparagraphs that are an integral part of that right. The absence of
explicit provision or elaboration in Article XXI(b) of the GATT 1994 as to whethe r and how its
invocation may be reviewed does not, in itself, preclude or otherwise determine the review of that
provision in dispute settlement proceedings.549 Rather, the scope and nature of such review derives
from the terms of Article XXI(b) of the GATT 1994 and requirements of the DSU established under
the WTO Agreement, which acknowledges inter alia the role of the WTO dispute settlement system
in "providing security and predictability to the multilateral trading system".550 If Article XXI(b) of the
GATT 1994 is raised in dispute settlement proceedings, the DSU requires that it be addressed in
accordance with the terms of the provision itself and within an objective assessment of the relevant
measures and claims to make findings that will assist the DSB to make recommendations provided
for in the covered agreements.
7.144. In addition to the relevant text, context, and object and purpose of the covered agreements,
the parties have referred to various other materials regarding the interpretation of Article XXI(b) of
the GATT 1994. These materials include: (a) negotiating history of Article XXI of the GATT 1947 and
preparatory works of the Havana Charter for the International Trade Organization (ITO); (b) internal
documents of the US delegation to the negotiation of the ITO draft charter and GATT 1947; (c) GATT
Council Decisions under the GATT 1947; (d) views expressed by GATT contracting parties prior to
the creation of the WTO; and (e) negotiating history of the Uruguay Round. Both parties contend
that these materials provide support for their primary arguments on the terms of Article XXI(b) of
the GATT 1994 and the rule of interpretation in Article 31(1) of the Vienna Convention.551 In
Appendix B to this Report, the Panel addresses the parties' arguments on the re levance of these
materials to the interpretation of Article XXI(b) of the GATT 1994.
7.145. As detailed in Appendix B, these materials do not provide clear guidance regarding the
contested issues in this dispute, particularly concerning the scope and nature of the review of a
Member's invocation of Article XXI(b) of the GATT 1994 in proceedings under the DSU. In addition
to questions on the precise legal status of these materials for purposes of treaty interpretation, the
Panel does not find any clear indication in these materials of the "self -judging nature" or "non -
justiciability" of Article XXI(b) of the GATT 1994 as contended by the United States.552 Rather, the
Panel finds these materials to support the general conclusion that the terms of Article XXI(b) of the
GATT 1994 establish a right to take action for the protection of essential security interests in the
conditions and circumstances described in the three subparagraphs.
7.146. In conclusion, the entirety of Article XXI(b) of the GATT 1994 is to be giv en meaning and
effect in a manner that preserves the right and discretion of a Member to take action it considers
necessary for the protection of its essential security interests under the conditions and circumstances
described in subparagraphs (i) to (iii ). The Panel does not consider that Article XXI(b) of the
GATT 1994 is "self-judging" or "non-justiciable" in the sense argued by the United States, nor that
the provision contains a "single relative clause" that wholly reserves the conditions and
circumstances of the subparagraphs to the judgment of the invoking Member. In light of this
conclusion and in accordance with relevant requirements of the DSU, the Panel turns to assess the
United States' invocation of Article XXI(b) of the GATT 1994 in relation to the measures at issue.
7.9.3 Assessment of the measures at issue
7.147. The Panel will assess whether the measures found to be inconsistent with Articles I:1, II:1,
and XI:1 of the GATT 1994 were taken under the conditions and circumstances described in the
subparagraphs of Article XXI(b) of the GATT 1994.553

549 The Panel notes that the invocation of Article XX of the GATT 1994 titled "General Exceptions" has
been reviewed in WTO dispute settlement proceedings notwithstanding the absence of an explicit provision in
Article XX on whether and how its invocation may be reviewed.
550 Article 3.2 of the DSU.
551 Switzerland's response to Panel question No. 56; United States' response to Panel question No. 56.
552 See United States' first written submission, paras. 47, 56, and 106.
553 In light of the Panel's conclusion on the interpretation of Article XXI(b) and the arguments of the
parties in this dispute, the Panel considers it appropriate to focus its assessment of the measures at issue on
subparagraph (iii) and whether the measures were "taken in time of war or other emergency in international

7.148. As an initial matter, the Panel notes the objections by the complainant to the manner and
timeliness of the United States' defence under Article XXI(b)(iii), including concerns regarding due
process and the Panel 's independent assessment of the evidence and arguments on the record. 554
The Panel considers that the parties' due process rights have been fully maintained in these
proceedings, during which the Panel has endeavoured to provide ample time and opportunity to
address any evidence or arguments raised by the other party. 555 Moreover, the Panel has engaged
with such evidence and arguments in written questions and substantive meetings in order to fulfil
its mandate under the DSU to make an objective assessment of the matter referred to the DSB and
to make such findings as will assist the DSB in making the recommendations or in giving the rulings
provided for in the covered agreements.556
7.149. The United States has presented its specific arguments on the challenged measures subject
to its interpretive argument that Article XXI(b) is entirely "self-judging" and imposes no requirement
to explain or identify a relevant circumstance in subparagraphs (i) to (iii).557 Although the
United States has focused its arguments on the interpretation of Article XXI(b) and the discretion
accorded by its terms to Members, it has also submitted an extensive record of material relating to
the measures at issue. Of particular note in this context are the Steel and Aluminium Reports of the
USDOC and Presidential Proclamations setting out the legal basis under Section 232 for taking action
on steel and aluminium products. As described below, the United States has also elaborated its
position throughout the cours e of the proceedings concerning the measures at issue and, in
particular, the existence of an "emergency in international relations" within the meaning of
Article XXI(b)(iii) "in time of" which the measures were taken.
7.150. The United States' first written submission focused on the argument that Article XXI of the
GATT 1994 is "self-judging" as a defence against WTO -inconsistencies and that its invocation by a
Member is "non-justiciable" in WTO dispute settlement proceedings. Following the first subs tantive
meeting, the United States argued that "publicly available information" concerning its measures
"could be understood to relate most naturally to the circumstance described in Article XXI(b)(iii)".558
At the same time, the United States maintained its interpretive view that it is not necessary under
Article XXI for any Member to provide details relating to its invocation of the exception, nor "to
identify the relevant subparagraph ending to that provision that an invoking Member may consider
most relevant".559
7.151. The United States subsequently elaborated its arguments regarding the measures at issue
based on its interpretation of an "other emergency in international relations" as meaning "a situation
of danger or conflict, concerning political or economic contact occurring between nations, which
arises unexpectedly and requires urgent attention". 560 In particular, the United States argued that
"the extensive findings in the steel and aluminum reports are consistent with the United States

relations". The Panel notes that previous panels have assessed measures under Security Exceptions for "action
which [a Member] considers necessary for the protection of its essential security interests" beginning with the
relevant subparagraph of the provision at issue. (See Panel Reports, Russa – Traffic in Transit, paras. 7.108-
7.109; Saudi Arabia – IPRs; para. 7.242).
554 See Switzerland's response to Panel question No. 71; comments after the second meeting of the
Panel, paras. 55-57.
555 For example, at the closing of the second substantive meeting, the Panel indicated that the parties
would have an opportunity to provide written comments on any issue raised during the meeting, including
arguments on Article XXI(b)(iii) made during closing statements. The parties were accordingly invited to
provide written comments following the second substantive meeting and given an opportunity to make any
additional comments in response. The Panel considers the procedural arrangements in this dispute, including
the overall time given to the parties for written submissions and comments, to have afforded the parties
adequate opportunity to be heard and to respond to arguments made by the other party as required for the
protection of their due process rights. (See Appellate Body Report, Thailand – Cigarettes (Philippines),
para. 147).
556 See e.g. Appellate Body Reports, US – Shrimp, para. 106; EC and certain member states – Large
557 See e.g. United States' response to Panel question No. 92.
558 United States' second written submission, para. 27.
559 United States' second written submission, para. 26. According to the United States, its invocation of
Article XXI(b) indicated its consideration "that any or all of the three circumstances described in the
subparagraphs are present", and whatever burden of proof attached to Article XXI(b) "is discharged once the
Member indicates, in the context of dispute settlement, that it has made such a determination" that it
"consider[s] one or more of the circumstances set forth in Article XXI(b) to be present". (United States'
response to Panel question Nos. 50 and 52. See also United States' second written submission, para. 45).
560 See United States' response to Panel question No. 92.

considering the measures at issue to be taken 'in time of war or other emergency in international
relations'."561 The United States cited various findings in the Steel and Aluminium Reports and
argued that "the findings cited above relating to the threatened impairment of nat ional security by
steel and aluminum imports, and the global crisis circumstances under which such importations were
occurring, are consistent with the United States considering that an 'other emergency in
international relations' exists – that is, a situa tion of danger or conflict, concerning political or
economic contact occurring between nations, which arises unexpectedly and requires urgent
attention."562
7.152. In its closing statement at the second substantive meeting, the United States argued that,
"even on the complainant's understanding of Article XXI(b) as not self-judging, … [t]he record before
the Panel demonstrates that the United States considers the measures at issue to be necessary for
the protection of its essential security interests and taken 'in time of war or other emergency in
international relations'."563 The United States referred to findings in the Steel Report on "whether an
emergency related to steel excess capacity exists" to comment that, "in 2017, it emerged that global
efforts to address the crises would be insufficient. While the DOC steel report noted that the excess
capacity crisis is a global problem that steel-producing nations have committed to 'work together on
possible solutions,' the report observed the limits of the global effor ts, including the work of the
Global Forum on Steel Excess Capacity."564 The United States argued that "what the DOC steel report
conveys is that the United States was at a crucial point [and] that without immediate action, the
steel industry could suffer damages that may be difficult to reverse and reach a point where it cannot
maintain or increase production to address national emergencies."565 The United States additionally
argued that "[a]n industry facing 'fundamental changes' brought on by a 'production revolution' can
certainly lead to unexpected developments, particularly when that industry is facing an 'acute'
situation of global excess capacity that is the highest in the industry's history."566
7.153. The Panel notes that the United States has referred to the appendix in the Steel Report
concerning global excess capacity in connection with the existence of an "emergency in international
relations" under Article XXI(b)(iii).567 In addition, the United States has referred to the G20 Global
Steel Forum Report of 2017 noting that excess capacity is a "global challenge" which risks "the
viability of an industry that produces a material which is vital for the functioning of economies and
societies".568 The G20 Global Steel Forum Report of 2017 cited by the United States also describes
the situation of excess steelmaking capacity as "particularly acute since 2015" and addresses the
outlook of global steelmaking capacity. 569 Further, the United States refers to remarks of the EU
Commissioner for Trade at the OECD High-Level Symposium on Steel expressing concerns on steel
overcapacity.570
7.154. The Panel will assess the evidence and arguments submitted in this dispute in accordance
with the requirement under Article 11 of the DSU to make "an objective assessment of the facts of
the case and the applicability of and conformity with the relevant covered agreements". In addition
to the interpretive conclusions reached above 571, the Panel's assessment will be based on an

561 United States' response to Panel question No. 92, para. 43.
562 United States' response to Panel question No. 92, para. 50.
563 United States' closing statement at the second meeting, para. 45. (emphasis original)
564 United States' closing statement at the second meeting, paras. 48-49.
565 United States' closing statement at the second meeting, para. 51.
566 United States' closing statement at the second meeting, para. 52. The United States cited the
following passages in G20, Global Forum on Steel Excess Capacity Report (30 November 2017), (Exhibit USA-
72): "The situation of excess steelmaking capacity 'has become particularly acute since 2015'; 'the steel
industry will have to adjust in response to fundamental changes in economic activity brought on by the 'next
production revolution.'" (Ibid. p. 2); "In 2016, the global surplus in steelmaking capacity is estimated to have
reached around 737 million metric tonnes, the highest level seen in the history of the steel industry. If the
announced capacity expansions until 2020 take place, this excess capacity will further increase". (Ibid. p. 4).
567 See United States' response to Panel question No. 92, para. 46 (referring to Steel Report, (Exhibit
CHE-2 and USA-7), Appendix L: "Global Excess Capacity in Steel Production" and its commentary on OECD
analyses and the policy recommendations from the Global Forum on Steel Excess Capacity).
568 United States' opening statement of the first meeting of the Panel, para. 57.
569 See G20, Global Forum on Steel Excess Capacity Report (30 November 2017), (Exhibit USA-72);
United States' closing statement at the second meeting of the Panel, para. 52.
570 See Remarks dated 18 April 2016 of C. Malmström, "Way ahead for the global steel industry", OECD
High-Level Symposium on Steel, (Exhibit USA-240); United States' closing statement at the second meeting of
the Panel, para. 53.
571 See section 7.9.2 above.

interpretation of the terms of subparagraph (iii) of Article XXI(b) in accordance with Article 3.2 of
the DSU and customary rules of interpretation of public international law. Based on this
interpretation as well as the evidence and arguments submitted by the parties, the Panel will assess
whether the "action[s] which [the United States] considers necessary for the protection of its
essential security interests" were taken under the circumstances described in the subparagraphs of
Article XXI(b)(iii) of the GATT 1994.
7.155. Under subparagraph (iii) of Article XXI(b), a Member may take action which it considers
necessary for the protection of its essential security interests "in time of war or other emergency in
international relations". Dictionary definitio ns of the term "emergency" include "[a] situation, esp.
of danger or conflict, that arises unexpectedly and requires urgent attention", "a condition requiring
immediate treatment", or a "pressing need". 572 The relevant emergency within the meaning of
subparagraph (iii) must be "in international relations". The term "relations" may be defined as "[t]he
various ways by which a country, State, etc., maintains political or economic contact with
another"573, while the term "international" may be defined as "[e]xis ting, occurring, or carried on
between nations; pertaining to relations, communications, travel, etc., between nations". 574 The
phrase "international relations" may thus be understood to mean interactions between nations or
national governments. 575 The terms of Article XXI(b)(iii) appear to distinguish the relevant
emergency under that subparagraph from an emergency in purely domestic or national affairs and
indicate the "international" character of the emergency in time of which Members are not prevented
from taking action under Article XXI(b).
7.156. The term "war" precedes the phrase "or other emergency in international relations" in
subparagraph (iii) of Article XXI(b) and provides immediate context for its interpretation. Dictionary
definitions of "war" include "[h]ostile contention by means of armed forces, carried on between
nations, states, or rulers, or between parties in the same nation or state; the employment of armed
forces against a foreign power, or against an opposing party in the state". 576 Based on its ordinary
meaning, "war" involves a state of conflict characterized by the use of force. This is further confirmed
by the French and Spanish language versions of Article XXI(b)(iii), where the terms " guerre" and
"guerra" similarly signify armed struggles or outbreak of hostilities.577
7.157. The Panel finds that the reference to "war" informs the meaning of "emergency in
international relations" as part of the circumstances "in time of" which a Member may act under
Article XXI(b) for the protection of its essential security interests. In particular, the Panel considers
that an "emergency in international relations" within the meaning of Article XXI(b)(iii) must be, if
not equally grave or severe, at least comparable in its gravity or severity to a "war" in terms of its
impact on international relations. This understanding is supported by the French and Spanish
language versions of Article XXI(b)(iii) of the GATT 1994, where the terms corresponding to
"emergency in international relations" are " grave tension internationale" and " grave tensión
internacional" respectively. The term "grave" in these languages may be understood as referring to

572 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 814. See also
Switzerland's response to Panel question No. 51; second written submission, para. 277; and United States'
response to Panel question No. 51 (referring to The New Shorter Oxford English Dictionary, 4th edn, L. Brown
(ed.) (Clarendon Press, 1993), (Exhibit USA-86), p. 806).
573 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 2520. See also
United States' response to Panel question No. 92 (referring to The New Shorter Oxford English Dictionary, 4th
edn, L. Brown (ed.) (Clarendon Press, 1993), (Exhibit USA-222), p. 2534).
574 Shorter Oxford English Dictionary, 5th Edition (Oxford University Press, 2003), p. 1404. See also
United States' response to Panel question No. 92 (referring to The New Shorter Oxford English Dictionary, 4th
edn, L. Brown (ed.) (Clarendon Press, 1993), (Exhibit USA-222), p. 1397).
575 See also Oxford English Dictionary Online (Oxford University Press, March 2022) (defining
"international relations" as "relations between nations, national governments, international organizations") and
Black's Law Dictionary, 9th edn, B.A. Garner (ed.) (West Group 2009), p. 893 (defining "international relations"
as "[g]lobal political interaction, primarily among sovereign nations").
576 Oxford English Dictionary Online (Oxford University Press, March 2022).
577 See Le Petit Robert Dictionnaire de la Langue Française (2000), p. 1183 (defining "guerre" as "[l]utte
armée entre groupes sociaux" (armed struggle between social groups) or "[l]es questions militaires" (military
matters)); Diccionario de la Lengua Española, 22nd Edition (Real Academia Española, 2001), p. 795 (defining
"guerra" as "[d]esavenencia y rompimiento de la paz entre dos o más potencias" (disagreement and breach of
peace between two or more powers) or "[l]ucha armada entre dos o más naciones o entre bandos de una
misma nación" (armed struggle between two or more nations or between sides of the same nation)).

international tensions that are of a critical or serious nature in terms of their impact on the conduct
of international relations.
7.158. Further, under subparagraph (iii) of Article XXI(b), action for the protection of essential
security interests must be "taken in time of" an emergency in international relations. As discussed
above, the Panel understands these opening terms of subparagraph (iii) to qualify and describe the
"action" referred to in Article XXI(b). The phrase "taken in time of" in subparagraph (iii) describes
the temporal link between the action taken by a Member under Article XXI(b) and the "war or other
emergency in international relations" in subparagraph (iii) of that Article.
7.159. The Panel also considers relevant the context provided by the subparagraphs of
Article XXI(b) in conjunction with the terms used in paragraph (b) of Article XXI, which concerns
actions taken by a Member for the protection of its "essential security interests". As discussed above,
the description of these security interests as "essential" indicates the heightened significance of the
security interests that Members are not prevented from takin g action to protect pursuant to
Article XXI(b). Actions taken by a Member for the protection of its essential security interests may
concern "fissionable materials" under subparagraph (i), "traffic" involving certain military interests
under subparagraph (ii), and "war or other emergency in international relations" under subparagraph
(iii). The Panel is guided by the delimiting function of the subparagraphs in construing subparagraph
(iii) to refer to circumstances of a certain gravity or severity in terms of their impact on the conduct
of international relations, as part of the balance of rights and obligations reflected in the ordinary
meaning of the terms of Article XXI(b), interpreted in their context and in light of the object and
purpose of the GATT 1994 and WTO Agreement.578
7.160. With respect to the measures at issue, the Panel notes that the United States has referred
in its arguments regarding Article XXI(b)(iii) to factors considered by the USDOC in the Steel and
Aluminium Reports. These Reports reflect the domestic legislative basis and statutory terms of
Section 232, particularly the factors to be considered in investigations by the USDOC and the
reference to importation "in such quantities or under such circumstances" that the imports "threaten
to impair the national security".579 The Panel notes that various factors relied upon by US authorities
are treated cumulatively in support of the determination to act under Section 232. Specifically, the
Steel and Aluminium Reports identify "three factors" as the basis for finding with respect to steel
and aluminium that "weakening of our internal economy may impair the national security", namely:
(a) displacement of domestic steel/aluminium by excessive i mports; (b) the consequent adverse
impact on the economic welfare of the domestic steel/aluminium industry; and (c) the global excess
capacity in steel and aluminium. 580 The Panel notes that the first two factors focus predominantly
on developments relating to the domestic situation of steel and aluminium industries in the
United States581, while the third focuses on a global aspect of the situation.
7.161. The analysis and conclusions of the USDOC in the Steel and Aluminium Reports do not
purport to identify or address the existence of an "emergency in international relations" within the
meaning of Article XXI(b)(iii) of the GATT 1994. The determinations of US domestic authorities under
Section 232 relate to a different legal standard and basis under US municipal law than the provisions
of the covered agreements within the Panel's mandate under the DSU. Accordingly, the factors relied
upon by the USDOC and conclusions in the Steel and Aluminium Reports are distinct from, and
cannot be directly transposed to, the terms of Article XXI(b)(iii) of the GATT 1994 and the objective
assessment required under Article 11 of the DSU. Therefore, the factors treated cumulatively by US
domestic authorities under Section 232 may not be regarded as having commensurate relevance or
weight in the Panel's objective assessment as to whether the measures were taken "in time of war
or other emergency in international relations" under Article XXI(b)(iii) of the GATT 1994. The
assessment of the Panel in this dispute concerns the United States' specific arguments in connection
with the existence of an "emergency in international relations" under Article XXI(b)(iii) and, in

578 See paras. 7.142 and 7.143 above.
579 The USDOC noted the non-exhaustive list of factors to be considered in connection with "national
security" under Section 232 and the list of factors for the US Secretary of Commerce to consider in determining
if imports "threaten to impair the national security". (See Steel Report, (Exhibit CHE-2 and USA-7), pp. 13-15;
Aluminium Report, (Exhibit CHE-5 and USA-8), pp. 12-14 (referring to Section 232(d))).
580 Steel Report, (Exhibit CHE-2 and USA-7), p. 16; Aluminium Report, (Exhibit CHE-5 and USA-8), p.
15.
581 See e.g. Steel Report, (Exhibit CHE-2 and USA-7), sections V.B.4-10 and V.C; Aluminium Report,
(Exhibit CHE-5 and USA-8), sections VI.H and VI.C.

particular, its references to an international situation of global excess capacity in steel and
aluminium.582
7.162. The Panel observes that, in its arguments under Article XXI(b), the United States refers to
this international situation – i.e. global excess capacity in steel and aluminium – in connection with
the impact of imports on domestic producers of steel and aluminium, as reflected in the conclusions
of the USDOC in the Steel and Aluminium Reports.583 The United States refers to factors addressed
by the USDOC in the Steel and Aluminium Reports as evidence that it "considers" the measures at
issue to have been "taken in time" o f an "emergency in international relations" within the meaning
of Article XXI(b)(iii). In this regard, the Panel notes the United States' argument that "the extensive
findings in the steel and aluminum reports are consistent with the United States considering the
measures at issue to be taken 'in time of war or other emergency in international relations'."584 The
United States additionally argues that "the Panel should find [that] the United States has provided
information that it considers the measure neces sary for the protection of its essential security
interests … [and] that the United States has provided information that it considers the measure
'taken in time of war or other emergency in international relations', the circumstance in
subparagraph ending (iii)".585
7.163. The Panel recalls its conclusion that the terms "which it considers" in Article XXI(b) do not
qualify the subparagraphs to render them "self -judging" as argued by the United States.586 While
the United States contends that it has "provided information that it considers" the measures at issue
to fall under Article XXI(b)(iii), the review of such information in accordance with the DSU requires
an objective ascertainment of factors relating to the relevant "emergency in international relations"
under subparagraph (iii), as distinguished from factors pertaining to what is reserved to a Member's
consideration under paragraph (b) of Article XXI. The United States refers to factors that were
cumulatively considered by domestic authorities in support of the determination to act under
Section 232. As noted, these factors concern both the domestic situation of steel and aluminium
industries as well as global excess capacity.
7.164. In the Panel's view, the factors raised by the United States on the impact of imports on
domestic producers of steel and aluminium, including the consideration of US domestic authorities
of "national security" under Section 232, pertain more to the "action which [the United States]
considers necessary for the protection of its essential security interests" under paragraph (b) of
Article XXI.587 However, in accordance with the ordinary meaning of its terms, subparagraph (iii)
requires a distinct inquiry as to whether the actions were taken in time of an "emergency in
international relations" based on an objective assessment of relevant evidence and arguments.
7.165. In this connection, the Panel notes the evidence submitted by the United States of
international concerns regarding global exces s capacity in steel and aluminium, including the
discussion of such concerns in the Steel and Aluminium Reports. The statements at the international
level referred to by the United States indicate that the issue of global excess capacity in steel and
aluminium has been a topic of high -level discussion and expressions of concern in various
international fora.588 As reflected in information provided by the United States in this dispute, the
discussion of global excess capacity focuses on specific sectors and i s evidence of the fact that the
issue has been raised as a matter of international attention within the conduct of international
relations of various countries. Notwithstanding such evidence of international engagement, the Panel

582 United States' response to Panel question No. 92, para. 46 (referring to Steel Report, (Exhibit CHE-2
and USA-7), Appendix L: "Global Excess Capacity in Steel Production" and its commentary on OECD analyses
and the policy recommendations from the Global Forum on Steel Excess Capacity); see also United States'
closing statement at the second meeting, paras. 48-49.
583 See Steel Report, (Exhibit CHE-2 and USA-7), section VI; Aluminium Report, (Exhibit CHE-5 and
USA-8), section VII.
584 United States' response to Panel question No. 92, para. 43.
585 United States' closing statement at the second meeting, para. 46.
586 See para. 7.146 above.
587 See e.g. United States' closing statement at the second meeting, para. 18. (stating that "the
measures challenged were on steel and aluminum (key sources for military vehicles, weapons, and systems for
critical national infrastructure) that the United States has taken for national security purposes" and referring to
"an industry that is vital to our national security and whose decline threatens to impair our national security");
response to Panel question No. 92(a). See also paras. 7.101, 7.106-7.109, and 7.116-7.117 above.
588 See e.g. G20, Global Forum on Steel Excess Capacity Report (30 November 2017), (Exhibit USA-72);
Remarks dated 18 April 2016 of C. Malmström, "Way ahead for the global steel industry", OECD High-Level
Symposium on Steel, (Exhibit USA-240).

recalls that an "emergency in international relations" under Article XXI(b)(iii) refers to situations of
a certain gravity or severity and international tensions that are of a critical or serious nature in terms
of their impact on the conduct of international relations.
7.166. Having carefully reviewed the relevant evidence and arguments submitted in this dispute,
and particularly those submitted by the United States in relation to global excess capacity, the Panel
is not persuaded that the situation to which the United States refers rises to the gravity or severity
of tensions on the international plane so as to constitute an "emergency in international relations"
during which a Member may act under Article XXI(b)(iii).589 For example, the G20 Global Steel Forum
Report "focuses on the steel sector and provides concrete policy solutions to reduce steel excess
capacity".590 In referring to excess steelmaking capacity as "a global challenge that has become
particularly acute since 2015", the report highlights various efforts within the Global Steel Forum in
light of trends in the sector as part of "[g]lobal cooperation to find solutions to tackle excess capacity
in the steel market". 591 Such evidence submitted by the United States in this dispute reflects
international concern expressed in the con text of cooperative efforts to address excess capacity in
a specific sector. 592 In the Panel's view, however, the gravity or severity of an "emergency in
international relations" within the meaning of Article XXI(b)(iii), particularly regarding the impact on
international relations of situations falling under that provision, has not been established based on
the evidence and arguments submitted in this dispute. In reaching this conclusion, the Panel is
mindful of its mandate in this dispute593 as well as the balance of rights and obligations reflected in
the terms of Article XXI of the GATT 1994 interpreted in accordance with the DSU.
7.9.4 Conclusion
7.167. In conclusion, the Panel does not find , based on the evidence and arguments submitted in
this dispute, that the measures at issue were "taken in time of war or other emergency in
international relations" within the meaning of Article XXI(b)(iii) of the GATT 1994. Therefore, the
Panel finds that the inconsistencies of the measures at issue with Articles I:1, II:1, and XI:1 of the
GATT 1994 are not justified under Article XXI(b)(iii) of the GATT 1994.
8 CONCLUSIONS AND RECOMMENDATION
8.1. For the reasons set forth in this Report, the Panel concludes as follows:
a. Regarding Switzerland's claims under Article II of the GATT 1994:
i. the additional duties of 25% on steel products and 10% on aluminium products do not
accord the treatment provided for in the United States' Schedule, contrary to
Article II:1(b) and Article II:1(a) of the GATT 1994;

589 The Panel notes in this regard that previous panels have found situations to constitute an
"emergency in international relations" under Security Exceptions based on the particular evidence and
circumstances at issue in those disputes. In a dispute under Article XXI(b)(iii) of the GATT 1994, such evidence
included international recognition of the degree of deterioration of relations between two Members and a
situation involving armed conflict during a certain time period. (See Panel Report, Russa – Traffic in Transit,
paras. 7.122-7.123). In another dispute under Article 73(b)(iii) of the TRIPS Agreement (the corresponding
provision to Article XXI(b)(iii) of the GATT 1994 in the TRIPS Agreement), such evidence included the
severance of all diplomatic, consular, and economic relations between two Members. (See Panel Report, Saudi
Arabia – IPRs; paras. 7.257-7.266).
590 G20, Global Forum on Steel Excess Capacity Report (30 November 2017), (Exhibit USA-72), p. 2.
591 G20, Global Forum on Steel Excess Capacity Report (30 November 2017), (Exhibit USA-72), pp. 2-3.
The report describes the formal establishment of the Global Forum on Steel Excess Capacity and notes that
"the OECD acts as the facilitator to the Global Forum". (Ibid. para. 6). The report further describes efforts to
develop an "information-sharing mechanism" in a "tangible process [that] contributes to the collective trust
and confidence that are necessary to find collective solutions to the challenge of excess capacity". (Ibid.
paras. 7-8).
592 The United States refers to other evidence that similarly reflects expressions of concern in the
context of specific international initiatives. For example, the United States refers to remarks by the EU
Commissioner for Trade at the OECD High-Level Symposium on Steel expressing concerns on steel
overcapacity while noting ongoing interventions as well as recommendations for international cooperation.
(Remarks dated 18 April 2016 of C. Malmström, "Way ahead for the global steel industry", OECD High-Level
Symposium on Steel, (Exhibit USA-240)).
593 See section 7.1 above.

ii. the additional duty of 50% on steel products from Türkiye does not accord the
treatment provided for in the United States' Schedule, contrary to Article II:1(b) and
Article II:1(a) of the GATT 1994; and
iii. the additional duties of 25% on derivative steel products and 10% on derivative
aluminium products do not accord the treatment provided for in the United States'
Schedule, contrary to Article II:1(b) and Article II:1(a) of the GATT 1994.
b. Regarding Switzerland's claims under Article I of the GATT 1994:
i. the country exemptions for steel and aluminium products confer an advantage to
products from Australia, Argentina, Brazil, and the Republic of Korea that has not been
accorded immediately and unconditionally to like products from all other Members, in
a manner inconsistent with Article I:1 of the GATT 1994;
ii. the country exemptions for steel and aluminium products confer an advantage to
products from Canada and Mexico that has not been accorded immediately and
unconditionally to like products from all other Members, in a manner inconsistent with
Article I:1 of the GATT 1994; and
iii. the country exemptions for derivative steel and aluminium products confer an
advantage to products from Australia, Argentina, Brazil, the Republic of Korea ,
Canada, and Mexico that has not been accorded immediately and unconditionally to
like products from all other Members, in a manner inconsistent with Article I:1 of the
GATT 1994.
c. Regarding Switzerland's claims under Article XI:1 of the GATT 1994, by imposing import
quotas on steel and aluminium products from Argentina, Brazil, and the Republic of Korea,
the United States has instituted prohibitions or restrictions other than duties, taxes or
other charges on the importation of those pr oducts of the territory of those Members ,
inconsistently with Article XI:1 of the GATT 1994.
d. Regarding Switzerland's claims under Article X of the GATT 1994, the Panel does not
consider it necessary to make findings on Switzerland's claims relating to the
administration of the processes for excluding certain countries or products from measures
that have already been found inconsistent with other obligations under the GATT 1994.
The Panel therefore declines to make findings regarding the claims under Article X:3(a) of
the GATT 1994.
e. Regarding Switzerland's claims under Article XIX of the GATT 1994 and the Agreement on
Safeguards, the Panel finds that the relevant measures at issue were sought, taken, or
maintained pursuant to a provision of the GATT 1994 other than Article XIX, namely
Article XXI of the GATT 1994, within the meaning of Article 11.1(c) of the Agreement on
Safeguards. The Panel therefore finds that the Agreement on Safeguards does not apply
to the measures at issue.
f. Regarding Article XXI of the GATT 1994, the Panel does not find that the measures at issue
were "taken in time of war or other emergency in international relations" within the
meaning of Article XXI(b)(iii) of the GATT 1994. The Panel therefore finds that the
inconsistencies of the measures at issue with Articles I:1, II:1, and XI:1 of the GATT 1994
are not justified under Article XXI(b)(iii) of the GATT 1994.
8.2. Under Article 3.8 of the DSU , in cases where there is an infringement of the obligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment. The Panel concludes that, to the extent that the measures at issue are
inconsistent with certain provisions of the GATT 1994, they have nullified or impaired benefits
accruing to Switzerland under that Agreement.
8.3. Pursuant to Article 19.1 of the DSU, the Panel recommends that the United States bring its
WTO-inconsistent measures into conformity with its obligations under the GATT 1994.