UNITED STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS REPORT OF THE PANEL
Document: Addendum
Date: 9 December 2022
Document codes: WT/DS556/R/Add.1; 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
Addendum
This addendum contains Annexes A to C to the Report of the Panel to be found in document

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 20 February
2020
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 U nited 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

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 20 February 2020 11
Annex A-4 Additional Working Procedures of the Panel Concerning Meetings with Remote
Participation 17

ANNEX A-1
WORKING PROCEDURES OF THE PANEL
Adopted on 5 April 2019

General

1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the
following Working Procedures apply.
(2) The Panel reserves the right to modify these procedures as necessary, after consultation
with the parties.
Confidentiality
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept
confidential. Members shall treat as confidential information that is s ubmitted to the Panel
which the submitting Member has designated as confidential.
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party
or third party from disclosing statements of its own positions to the public.
(3) If a party submits a confidential version of its written submissions to the Panel, it shall
also, upon request of a Member, provide a non -confidential summary of the information
contained in its submissions that could be disclosed to the public.
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment
and handling of confidential information after consultation with the parties.
Submissions

3. (1) Before the first substantive meeting of the Panel with the parties, eac h party shall
submit a written submission in which it presents the facts of the case and its arguments, in
accordance with the timetable adopted by the Panel.
(2) Each party shall also submit to the Panel, before the second substantive meeting of the
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.
(3) Each third party that chooses to make a written submission before the first substantive
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by
the Panel.
(4) The Panel may invite the parties or third parties to make additional submissions during
the proceeding, including with respect to requests for preliminary rulings in accordance with
paragraph 4 below.
Preliminary rulings
4. (1) If the United States considers that the Panel should make a ruling before the issuan ce
of the Report that certain measures or claims in the panel request or the complainant's first
written submission are not properly before the Panel, the following procedure applies.
Exceptions to this procedure shall be granted upon a showing of good cause.
a. The United States shall submit any such request for a preliminary ruling at the earliest
possible opportunity and in any event no later than in its first written submission to the

Panel. Switzerland shall submit its response to the request before the first substantive
meeting of the Panel, at a time to be determined by the Panel in light of the request.
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling
request before, during or after the first substantive meetin g, or the Panel may defer a
ruling on the issues raised by a preliminary ruling request until it issues its Report to the
parties.
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its
Report, the Panel may provide reasons for the ruling at the time that the ruling is made,
or subsequently in its Report.
d. Any request for such a preliminary ruling by the respondent before the first meeting, and
any subsequent submissions of the parties in relation thereto before the fir st meeting,
shall be served on all third parties. The Panel may provide all third parties with an
opportunity to provide comments on any such request, either in their submissions as
provided for in the timetable or separately. Any preliminary ruling issued by the Panel
before the first substantive meeting on whether certain measures or claims are properly
before the Panel shall be communicated to all third parties.
(2) This procedure is without prejudice to the parties' right to request other types of
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel
may follow with respect to such requests.
Evidence
5. (1) Each party shall submit all evidence to the Panel no later than during the first
substantive meeting, ex cept evidence necessary for purposes of rebuttal, or evidence
necessary for answers to questions or comments on answers provided by the other party.
Additional exceptions may be granted upon a showing of good cause.
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall
accord the other party an appropriate period of time to comment on the new evidence
submitted.
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language,
the submitting party or third party shall simultaneously submit a translation of the exhibit or
relevant portion into the WTO working language of the submission. The Panel may grant
reasonable extensions of time for the translation of exhibits upon a showing of good cause.
(2) Any objection as to the accuracy of a translation should be raised promptly in writing,
preferably no later than the next submission or meeting (whichever occurs earlier) following
the submission which contains the translation in question. Any objection shall be accompanied
by an explanation of the grounds for the objection and an alternative translation.
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute, indicating the submitting Member and the number of each exhibit on its
cover page. Exhibits submitted by Switzerland should be numbered CHE-1, CHE-2, etc.
Exhibits submitted by the United Sta tes should be numbered USA -1, USA-2, etc. If the last
exhibit in connection with the first submission was numbered [XXX]-5, the first exhibit in
connection with the next submission thus would be numbered [XXX]-6.
(2) Each party shall provide an updated li st of exhibits (in Word or Excel format) together
with each of its submissions, oral statements, and responses to questions.
(3) If a party submits a document that has already been submitted as an exhibit by the
other party, it should explain why it is submitting that document again.

(4) If a party includes a hyperlink to the content of a website in a submission, and intends
that the cited content form part of the official record, the cited content of the website shall be
provided in the form of an exhibit.
Editorial Guide
8. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy
provided).
Questions

9. The Panel may pose questions to the parties and third parties at any time, including:
a. Before any meeting, the Panel may send written questions, or a list of topics it intends
to pursue in questioning orally during a meeting. The Panel may ask different or additional
questions at the meeting.
b. The Panel may put questions to the parties and third parties orally during a meeting,
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.
Substantive meetings

10. The Panel may open its meetings w ith the parties to the public, subject to appropriate
procedures to be adopted by the Panel after consulting the parties.

11. The parties shall be present at the meetings only when invited by the Panel to appear before
it.
12. (1) Each party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each party shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these Working
Procedures, particularly with regard to the confidentiality of the proceeding and the
submissions of the parties and third parties.
13. Each party shall provide to the Panel the list of members of its delegation no later than
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.
14. A request for interpretation by any party shoul d be made to the Panel as early as possible,
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite Switzerland to make an opening statement to present its case
first. Subsequently, the Panel shall invite the United States to present its point of view. Before
each party takes the floor, it shall provide the Panel and other participants at the meeting with
a provisional written version of its statement. If interpretation is needed, each party shall
provide additional copies for the interpreters.
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each
party is invited to limit the duration of its opening statement to not more than 75 minutes. If
either party considers that it requires more time for its opening statement, it should inform
the Panel and the other party at least 10 days prior to the meeting, together with an estimate
of the expected duration of its statement. The Panel will accord equal time to the other party
c. After the conclusion of the opening statements, the Panel shall give each party the
opportunity to make comments or ask the other party questions.
d. The Panel may subsequently pose questions to the parties.

e. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with Switzerland presenting its statement first. Before each
party takes the floor, it shall provide the Panel and other participants at the meeting with a
provisional written version of its closing statement, if available.
f. Following the meeting:
i. Each party shall submit a final written version of its op ening statement no later than
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same
time, each party should also submit a final written version of any prepared closing
statement that it delivered at the meeting.
ii. Each party shall send in writing, within the timeframe established by the Panel before
the end of the meeting, any questions to the other party to which it wishes to receive
a response in writing.
iii. The Panel shall send in writing, within the timeframe established by th e Panel before
the end of the meeting, any questions to the parties to which it wishes to receive a
response in writing.
iv. Each party shall respond in writing to the questions from the Panel, and to any
questions posed by the other party, within the time -frame established by the Panel
before the end of the meeting.
16. The Panel will communicate in advance concerning the conduct of the second substantive
meeting, after having consulted with the parties.
Third party session

17. The third parties shall be pr esent at the meetings only when invited by the Panel to appear
before it.
18. (1) Each third party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each third party shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these Working
Procedures, particularly with regard to the confidentiality of the procee ding and the
submissions of the parties and third parties.
19. A request for interpretation by any third party should be made to the Panel as early as
possible, preferably upon receiving the working procedures and timetable for the proceeding, to
allow sufficient time to ensure availability of interpreters.
20. (1) Each third party may present its views orally during a session of the first substantive
meeting with the parties set aside for that purpose.
(2) Each third party shall indicate to the Panel whether it intends to make an oral statement
during the third party session, along with the list of members of its delegation, in advance of
this session and no later than 5.00 p.m. (Geneva time) three working days before the third
party session of the meeting with the Panel.
21. The Panel will communicate in advance of the first substantive meeting concerning the conduct
of the third party session, after having consulted with the parties.

Descriptive part and executive summaries

22. The description of the arguments of the parties and third parties in the descriptive part of the
Panel report shall consist of executive summaries provided by the parties and third parties, which
shall be annexed as addenda to the report. These executive summaries shall not in an y way serve
as a substitute for the submissions of the parties and third parties in the Panel's examination of the
case.
23. Each party shall submit one integrated executive summary. The timing of the submission of
the integrated executive summary shall be indicated in the timetable adopted by the Panel.
24. The integrated executive summary shall be limited to no more than 30 pages.
25. The Panel may request the parties and third parties to provide executive summaries of facts
and arguments presented in any other submissions to the Panel for which a deadline may not be
specified in the timetable.
26. Each third party shall submit an integrated executive summary of its arguments as presented
in its written submission and statement in accordance with the timetable adopted by the Panel. This
integrated executive summary may also include a summary of responses to questions, if relevant.
The executive summary to be provided by each third party shall not exceed six pages. If a third -
party submission and/or oral statement does not exceed six pages in total, this may serve as the
executive summary of that third party's arguments.
Interim review

27. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the in terim report and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
28. If no further meeting with the Panel is requested, each party may submit written comments
on the other party's written request for review, in accordance with the timetable adopted by the
Panel. Such comments shall be limited to commenting on the other party's written request for
review.
Interim and Final Report
29. The interim report, as well as the final report before its official circulation, shall be kept strictly
confidential and shall not be disclosed.
Service of documents

30. The following procedures regarding service of documents apply to all documents submitted by
parties and third parties during the proceeding:
a. Each party and third party shall submit all documents to the Panel by submitting them
with the DS Registry (office No. 2047).
b. Each party and third party shall submit 2 paper copies of its submissions and 2 paper
copies of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates established
by the Panel. The DS Registrar shall stamp the documents with the date and time of
submission. The paper version submitted to the DS Registry shall constitute the official
version for the purposes of subm ission deadlines and the record of the dispute. If any
documents are in a format that is impractical to submit as a paper copy, then the party
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or USB
key only.
c. Each party and third party shall also send an email to the DS Registry, at the same time
that it submits the paper versions, attaching an electronic copy of all documents that it
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails

to the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO
Secretariat staff whose email addresses have been provided to the parties during the
proceeding. If it is not possible to attach all the Exhibits to one email, the submitting party
or third party shall provide the DS Registry with four copies of the Exhibits on USB keys,
CD-ROMs or DVDs.
d. In addition, each party and third party is invited to submit all documents through the
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the
submission of the paper versions. If the parties or third parties have any questions or
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.
e. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in addition, serve any submissions in advance of the first substantive
meeting with the Panel directly on the third parties. Each third party shall serve any
document submitted to the Panel directly on the parties and on all other third parties. A
party or third party may serve its documents on another party or third party by email or
other electronic format acceptable to the recipient without having to serve a paper copy ,
unless the recipient party or third party has previously requested a paper copy. Each party
and third party shall confirm, in writing, that copies have been served on the parties and
third parties, as appropriate, at the time it provides each document to the Panel.
f. Each party and third party shall submit its documents with the DS Registry and serve
copies on the other party (and third parties if appropriate) by 5.00 p.m. (Geneva time) on
the due dates established by the Panel.
g. As a general rule, all communications from the Panel to the parties and third parties will
be via email. In addition to transmitting them to the parties by email, the Panel shall
provide the parties with a paper copy of the Interim Report and the Final Report.
Correction of clerical errors in submissions
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its
submissions (including paragraph numbering and typographical mistakes). Any such request should
identify the nature of the errors to be corrected, and should be made promptly following the filing
of the submission in question.

ANNEX A-2
ADDITIONAL WORKING PROCEDURES FOR THE PANEL
OPEN MEETING
Adopted on 19 July 2019
1. These Additional Working Procedures shall only be applicable to the first substantive meeting
of the Panel with the parties. They shall not cover the second substantive meeting of the Panel
with the Parties nor the third-party session.
2. Subject to the availability of suitable WTO meeting rooms, the Panel will open its first
substantive meeting with the parties to the public ("open session") pursuant to paragraph 10
of its Working Procedures.
3. If the Panel or any of the parties considers it necessary to close any part of the substantive
meeting ("closed session"), the Panel shall close the meeting immediately or convene a closed
session at a time to be determined by the Panel.
4. The Panel will invite the parties to introduce the members of their delegations in a closed
session at the beginning of the substantive meeting. The Panel will then start the open session
with the parties' opening statements. After the parties' opening statements, each party wi ll
be given the opportunity to pose questions or make comments, through the Panel, on the
other party's statement. The Panel may subsequently pose questions to the parties. Once the
questioning has concluded, the Panel shall afford each party an opportunity to present a brief
closing statement.
5. During the first substantive meeting, the following persons shall be admitted into the meeting
room:
• Members of the Panel;
• Members of the delegations of the parties; and
• WTO Secretariat staff assisting the Panel.

6. Subject to the availability of suitable WTO meeting rooms, the open sessions of the first
substantive meeting will be open to other WTO Members, Observers, staff members and
registered members of the public via a live closed-circuit television broadcast to a separate
viewing room in the WTO. The WTO Secretariat will remind the public that no audio or video
recording of the open sessions is permitted.
7. The viewings will be open to officials of WTO Members, Observers and staff members of the
WTO Secretariat upon presentation of their official badges. No later than four weeks before
the substantive meeting, the WTO Secretariat will place a notice on the WTO website informing
the public of the open sessions. The notice shall include a link through which members of the
public, including accredited journalists and representatives of relevant non -governmental
organizations (NGOs), can register directly with the WTO. The date of the deadline for public
registration will be communicated to the parties as soon as it has been established.

ANNEX A-3
WORKING PROCEDURES OF THE PANEL
Revised on 19 July 2019 and 20 February 2020

General

1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the
following Working Procedures apply.
(2) The Panel reserves the right to modify these procedures as necessary, after consultation
with the parties.
Confidentiality
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept
confidential. Members shall treat as co nfidential information that is submitted to the Panel
which the submitting Member has designated as confidential.
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party
or third party from disclosing statements of its own positions to the public.
(3) If a party submits a confidential version of its written submissions to the Panel, it shall
also, upon request of a Member, provide a non -confidential summary of the information
contained in its submissions that could be disclosed to the public.
(4) Upon request, the Panel may adopt appropriate additional procedures for the treatment
and handling of confidential information after consultation with the parties.
Submissions

3. (1) Before the first substantive meeting of the Panel with the parties, each party shall
submit a written submission in which it presents the facts of the case and its arguments, in
accordance with the timetable adopted by the Panel.
(2) Each party shall also submit to the Panel, before the second substantive meeting of the
Panel, a written rebuttal, in accordance with the timetable adopted by the Panel.
(3) Each third party that chooses to make a written submission before the first substantive
meeting of the Panel with the parties shall do so in accordance with the timetable adopted by
the Panel.
(4) The Panel may invite the parties or third parties to make additional submissions during
the proceeding, including with respect to requests for preliminary rulings in accordance with
paragraph 4 below.
Preliminary rulings
4. (1) If the United States considers that the Panel should make a ruling before the issuance
of the Report that certain measures or claims in the panel request or the complainant's first
written submission are not properly before the Panel, the following procedu re applies.
Exceptions to this procedure shall be granted upon a showing of good cause.
a. The United States shall submit any such request for a preliminary ruling at the earliest
possible opportunity and in any event no later than in its first written submission to the

Panel. Switzerland shall submit its response to the request before the first substantive
meeting of the Panel, at a time to be determined by the Panel in light of the request.
b. The Panel may issue a preliminary ruling on the issues raised in such a preliminary ruling
request before, during or after the first substantive meeting, or the Panel may defer a
ruling on the issues raised by a preliminary ruling request until it issues i ts Report to the
parties.
c. If the Panel finds it appropriate to issue a preliminary ruling before the issuance of its
Report, the Panel may provide reasons for the ruling at the time that the ruling is made,
or subsequently in its Report.
d. Any request for such a preliminary ruling by the respondent before the first meeting, and
any subsequent submissions of the parties in relation thereto before the first meeting,
shall be served on all third parties. The Panel may provide all third parties with an
opportunity to provide comments on any such request, either in their submissions as
provided for in the timetable or separately. Any preliminary ruling issued by the Panel
before the first substantive meeting on whether certain measures or claims are properly
before the Panel shall be communicated to all third parties.
(2) This procedure is without prejudice to the parties' right to request other types of
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel
may follow with respect to such requests.
Evidence
5. (1) Each party shall submit all evidence to the Panel no later than during the first
substantive meeting, except evidence necessary for purposes of rebuttal, or evidence
necessary for answers to questions or comments on answers provided by the other party.
Additional exceptions may be granted upon a showing of good cause.
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall
accord the other party an appropriate period of time to comm ent on the new evidence
submitted.
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language,
the submitting party or third party shall simultaneously submit a translation of the exhibit or
relevant portion into the WTO working language of the submission. The Panel may grant
reasonable extensions of time for the translation of exhibits upon a showing of good cause.
(2) Any objection as to the accuracy of a translation should be raised promptly in writing,
preferably no later than the next submission or meeting (whichever occurs earlier) following
the submission which contains the translation in question. Any objection shall be accompanied
by an explanation of the grounds for the objection and an alternative translation.
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute, indicating the submitting Member and the number of each exhibit on its
cover page. Exhibits submitted by Switzerland should be numbered CHE-1, CHE-2, etc.
Exhibits submitted by the United States should be numbered USA -1, USA-2, etc. If the last
exhibit in connection with the first submission was num bered [XXX]-5, the first exhibit in
connection with the next submission thus would be numbered [XXX]-6.
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together
with each of its submissions, oral statements, and responses to questions.
(3) If a party submits a document that has already been submitted as an exhibit by the
other party, it should explain why it is submitting that document again.

(4) If a party includes a hyperlink to the content of a website in a submission, and intends
that the cited content form part of the official record, the cited content of the website shall be
provided in the form of an exhibit.
Editorial Guide
8. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy
provided).
Questions

9. The Panel may pose questions to the parties and third parties at any time, including:
a. Before any meeting, the Panel may send written questions, or a list of topics it intends
to pursue in questioning orally during a meeting. The Panel may ask different or additional
questions at the meeting.
b. The Panel may put questions to the parties and third parties orally duri ng a meeting,
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.
Substantive meetings

10. 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.

11. The parties shall be present at the meetings only when invited by the Panel to appear before
it.
12. (1) Each party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each par ty shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these Working
Procedures, particularly with regard to the confidentiality of the proceeding and the
submissions of the parties and third parties.
13. Each party shall provide to the Panel the list of members of its delegation no later than
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.
14. A request for i nterpretation by any party should be made to the Panel as early as possible,
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite Switzerland to make an opening statement to present its case
first. Subsequently, the Panel shall invite the United States to present its point of view. Before
each party takes the floor, it shall provide the Panel and other participants at the meeting with
a provisional written version of its statement. If interpretation is needed, each party shall
provide additional copies for the interpreters.
b. Each party should avoid lengthy repetition of the arguments i n its submissions. Each
party is invited to limit the duration of its opening statement to not more than 75 minutes. If
either party considers that it requires more time for its opening statement, it should inform
the Panel and the other party at least 10 days prior to the meeting, together with an estimate
of the expected duration of its statement. The Panel will accord equal time to the other party
c. After the conclusion of the opening statements, the Panel shall give each party the
opportunity to make comments or ask the other party questions.
d. The Panel may subsequently pose questions to the parties.

e. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with Switzerland presenting its statement first. Before each
party takes the floor, it shall provide the Panel and other participants at the meeting with a
provisional written version of its closing statement, if available.
f. Following the meeting:
i. Each party shall submit a final written version of its opening statement no later than
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same
time, each party should also submit a final written version of any prepared closing
statement that it delivered at the meeting.
ii. Each party shall send in writing, within the timeframe established by the Panel before
the end of the meeting, any questions to the other party to which it wishes to receive
a response in writing.
iii. The Panel shall send in writing, within the timeframe established by the Panel before
the end of the meeting, any questions to the parties to which it wishes to receive a
response in writing.
iv. Each party shall respond in writing to the questions from the Panel, and to a ny
questions posed by the other party, within the time -frame established by the Panel
before the end of the meeting.
16. The Panel will communicate in advance concerning the conduct of the second substantive
meeting, after having consulted with the parties.
Third party session

17. The third parties shall be present at the meetings only when invited by the Panel to appear
before it.
18. (1) Each third party has the right to determine the composition of its own delegation when
meeting with the Panel.
(2) Each third party shall have the responsibility for all members of its delegation and shall
ensure that each member of its delegation acts in accordance with the DSU and these Working
Procedures, particularly with regard to the confidentiality of the procee ding and the
submissions of the parties and third parties.
19. A request for interpretation by any third party should be made to the Panel as early as
possible, preferably upon receiving the working procedures and timetable for the proceeding, to
allow sufficient time to ensure availability of interpreters.
20. (1) Each third party may present its views orally during a session of the first substantive
meeting with the parties set aside for that purpose.
(2) Each third party shall indicate to the Panel whether it intends to make an oral statement
during the third party session, along with the list of members of its delegation, in advance of
this session and no later than 5.00 p.m. (Geneva time) three working days before the third
party session of the meeting with the Panel.
21. The Panel will communicate in advance of the first substantive meeting concerning the conduct
of the third party session, after having consulted with the parties.

Descriptive part and executive summaries

22. The description of the arguments of the parties and third parties in the descriptive part of the
Panel report shall consist of executive summaries provided by the parties and third parties, which
shall be annexed as addenda to the report. These executive summaries shall not in an y way serve
as a substitute for the submissions of the parties and third parties in the Panel's examination of the
case.
23. Each party shall submit one integrated executive summary. The timing of the submission of
the integrated executive summary shall be indicated in the timetable adopted by the Panel.
24. The integrated executive summary shall be limited to no more than 30 pages.
25. The Panel may request the parties and third parties to provide executive summaries of facts
and arguments presented in any other submissions to the Panel for which a deadline may not be
specified in the timetable.
26. Each third party shall submit an integrated executive summary of its arguments as presented
in its written submission and statement in accordance with the timetable adopted by the Panel. This
integrated executive summary may also include a summary of responses to questions, if relevant.
The executive summary to be provided by each third party shall not exceed six pages. If a third -
party submission and/or oral statement does not exceed six pages in total, this may serve as the
executive summary of that third party's arguments.
Interim review

27. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
28. If no further meeting with the Panel is requested, each party may submit written comments
on the other party's written request for review, in accordance with the timetable adopted by the
Panel. Such comments shall be limited to commenting on th e other party's written request for
review.
Interim and Final Report
29. The interim report, as well as the final report before its official circulation, shall be kept strictly
confidential and shall not be disclosed.
Service of documents

30. The following procedures regarding service of documents apply to all documents submitted by
parties and third parties during the proceeding:
a. Each party and third party shall submit all documents to the Panel by submitting them
with the DS Registry (office No. 2047).
b. Each party and third party shall submit 2 paper copies of its submissions and 2 paper
copies of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates established
by the Panel. The DS Registrar shall stamp the documents with the date and time of
submission. The paper version submitted to the DS Registry shall constitute the official
version for the purposes of submission deadlines and the record of the dispute. If any
documents are in a format that is impractical to submit as a paper c opy, then the party
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or USB
key only.
c. Each party and third party shall also send an email to the DS Registry, at the same time
that it submits the paper versions, attaching an ele ctronic copy of all documents that it
submits to the Panel, preferably in both Microsoft Word and PDF format. All such emails

to the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO
Secretariat staff whose email addresses have been p rovided to the parties during the
proceeding. If it is not possible to attach all the Exhibits to one email, the submitting party
or third party shall provide the DS Registry with four copies of the Exhibits on USB keys,
CD-ROMs or DVDs.
d. In addition, ea ch party and third party is invited to submit all documents through the
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the
submission of the paper versions. If the parties or third parties have any questions or
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.
e. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall serve directly on the third parties any submissions up to and including
the responses to the questions posed by the Panel following the first substantive meeting
of the Panel with the parties, as well as the final versions of the oral state ments made
during this meeting. In addition, each party shall serve directly on the third parties second
written submissions, final versions of oral statements made during the second substantive
meeting, responses to the Panel's questions after the second substantive meeting, and
comments on those responses . Each third party shall serve any document submitted to
the Panel directly on the parties and on all other third parties. A party or third party may
serve its documents on another party or third party by email or other electronic format
acceptable to the recipient without having to serve a paper copy, unless the recipient party
or third party has previously requested a paper copy. Each party and third party shall
confirm, in writing, that copies have been served on the parties and third parties, as
appropriate, at the time it provides each document to the Panel.
f. Each party and third party shall submit its documents with the DS Registry and serve
copies on the other party (and third parties if appropriate) by 5.00 p.m. (Geneva time) on
the due dates established by the Panel.
g. As a general rule, all communications from the Panel to the parties and third parties will
be via email. In addition to transmitting them to the parties by email, the Panel shall
provide the parties with a paper copy of the Interim Report and the Final Report.
Correction of clerical errors in submissions
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its
submissions (including paragraph numbering and typographical mistakes). Any such request should
identify the nature of the errors to be corrected, and should be made promptly following the filing
of the submission in question.

ANNEX A-4
ADDITIONAL WORKING PROCEDURES OF THE PANEL
CONCERNING MEETINGS WITH REMOTE PARTICIPATION
Adopted on 1 December 2020
General
1. These Additional Working Procedures set out terms for holding meetings with the Panel where
all of the participants shall attend by remote means.
2. These Additional Working Procedures are meant to develop and complement paragraph 16 of
the Working Procedures of the Panel.
Definitions
3. For the purposes of these Additional Working Procedures:
"Remote participant" means any registered person attending the meeting with the Panel by
remote means.
"Platform" means Cisco Webex software through which remote participants attend the meeting
with the Panel.
"Host" means the designated person within the WTO Secretariat res ponsible for the
management of the platform.
Equipment and technical requirements
4. Each party shall ensure that all remote participants of its delegation join the meeting using the
designated platform, and meet the minimum equipment and technical requiremen ts set out by
the platform provider for the effective conduct of the meeting.
5. All technical questions, including the minimum equipment and technical requirements for the
usage of the Platform, will be addressed in the advance testing sessions in paragraph 8 below
between the Host and the parties.
Technical support
6. (1) Each party is responsible for providing technical support to the remote participants of its
delegation.
(2) The host will assist remote participants in accessing and using the platform in prep aration
of, and during, the meeting with the Panel.
Pre-meeting
Registration
7. Each party shall provide to the Panel the list of the members of its delegation, on a dedicated
form to be provided by the WTO Secretariat, no later than 5:00 p.m. (Geneva time) o ne week
before the first day of the meeting with the Panel.

Advance testing
8. Before the meeting with the Panel, the WTO Secretariat will hold two testing sessions with all
remote participants of each party: (i ) a separate one for each party's remote participants, and
(ii) a joint session with all participants in the meeting, including all remote participants of the
parties and the Panel joining remotely. Such sessions will seek to reflect, as far as possible, the
conditions of the meeting.
Confidentiality and security
9. The Panel shall meet in closed session. The content and conduct of the meeting are confidential
and no recording by the parties of any part of the meeting is allowed.
10. The Panel will record the meeting and keep an official copy of it for the Panel's record.
Conduct of the meeting
Access to the virtual meeting room
11. (1) The host will invite remote participants via email to join the virtual meeting room on the
platform.
(2) For security reasons, acc ess to the virtual meeting room will be password -protected and
limited to registered participants. Remote participants shall not forward or share the meeting
link or password.
(3) Each party shall ensure that only registered participants from its delegati on join the virtual
meeting room.
Advance log-on
12. (1) The virtual meeting room will be accessible 60 minutes in advance of the scheduled start
time of each session of the meeting with the Panel.
(2) All remote participants shall log on to the platform at least 30 minutes in advance of the
scheduled start time of each session of the meeting with the Panel.
Document sharing
13. (1) Each party shall provide the Panel and other participants with a provisional written version
of its opening statement and, if avail able, of its closing statement, before delivery at the
meeting. The parties are invited to make their opening statements available to the Panel the
day before the commencement of the meeting.
(2) Any participant wishing to share a document with the Panel and other participants during
the meeting shall do so before first referring to such document at the meeting.
Technical matters
14. (1) Each party shall designate a contact person who can liaise with the host during the course
of the meeting to report any tech nical issues that arise with respect to the platform. The host
can be contacted via the platform, by sending an email to leslie.stephenson@wto.org, or by
calling +41 022 739 6148.
(2) Should any technical interruptions occur, the host will directly coordin ate with the affected
participants to resolve the issue. After consulting the parties, the Panel may pause the session
until the technical issue is resolved or may continue the proceedings with those participants that
continue to be connected.

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 U nited States of
America
38

ANNEX B-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SWITZERLAND
I. INTRODUCTION
1.1. In this dispute, Switzerland challenges two sets of measures.
1.2. First, Switzerland challenges the import adjustment measure on certain steel products and the
import adjustment measure on certain aluminium products. These measures consist of several
elements including the additional duties and quotas applicable to imports of certain steel and
aluminium products as well as the country exemptions and product exclusions from such duties and
quotas. The "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. Those different elements are challenged as part of a single measure
relating to imports of steel on the one hand and a single measure relating to imports of aluminium
on the other hand. All these elements relate to each other and have been imposed following a single
investigation by the USDOC. The measures at issue and their dif ferent elements are all adequately
identified in Switzerland's Panel Request. These measures constitute safeguard measures that are
inconsistent with Article XIX of the GATT 1994 and the Agreement on Safeguards. They are also
inconsistent with Articles I:1, II:1(a) and (b), XI:1 and X:3(a) of the GATT 1994.
1.3. Second, Switzerland challenges Section 232 of the Trade Expansion Act of 1962, as amended,
as repeatedly interpreted by the US authorities and, in the alternative, its ongoing use so as to afford
protection to the domestic production by restricting imports from other WTO Members on the ground
of an alleged threat to the US national security. These measures are inconsistent with several
provisions of the Agreement on Safeguards and the GATT 1994.
II. CLAIMS AG AINST THE ADJUSTMENT MEASURES ON IMPORTS OF STEEL AND
ALUMINIUM PRODUCTS
A. The measures at issue are inconsistent with the Agreement on Safeguards and
Article XIX of the GATT 1994
1. The measures at issue fall within the scope of the Agreement on Safeguards and of Article XIX
of the GATT 1994
1.4. The legal characterisation of a measure for the purpose of WTO law is not an issue to be decided
unilaterally by the Member taking the measure. It is an issue that must be determined objectively.
Such an examination is part of the panel's duty to make an objective assessment pursuant to Article
11 of the DSU. Notably, the label given to a measure under a Member 's municipal law is not
dispositive. Rather, the panel must assess the design, structure, and expected operation of the
measure and identify all the aspects of the measure that may have a bearing on its legal
characterization, recognize which of those aspects are the most central to that measure, and thereby
properly determine the disciplines to which the measure is sub ject. Thus, the fact that the United
States does not describe the measures at issue as "safeguard measures" does not mean that such
measures are not "safeguard measures" under WTO law.
1.5. In Indonesia – Iron or Steel Products, the Appellate Body identified the two constituent features
of a safeguard measure.1 First, the measure must suspend, in whole or in part, a GATT obligation or
withdraw or modify a GATT concession. Second, the suspension, withdrawal, or modification in
question must be designed to prevent or remedy serious injury to the Member 's domestic industry
caused or threatened by increased imports of the subject product. They are necessary and sufficient
to find that a given measure constitutes a safeguard measure. They follow directly from the language
of Article XIX of the GATT 1994. Nothing in the text of that provision suggests that there are any
other conditions for a measure to be legally characterised as a safeguard measure.

1 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60.

1.6. The measures at issue present these two constituent features and thus are "safeguard
measures" subject to the requirements of Article XIX of the GATT and the Agreement on Safeguards.
1.7. First, by imposing an additional duty of 25% on imports of steel products and an additional
duty of 10% on imports of aluminium products, the United States has suspended at least one GATT
obligation or modified or withdrawn at least one GATT concession, namely that included in Articles
II:1(a) and (b) of the GATT 1994. Indeed, the United States' Schedule of Concessions indicates tariff
bindings of 0% for the steel products at issue and tariff bindings ranging from 0% to 6.5% for the
aluminium products at issue and does not report any "other duties or charges" with respect to those
products.
1.8. Second, the measures at issue, whether in the form of additional duties or quantitative
restrictions (quotas), are designed to prevent or remedy serious injury to the US domestic steel and
aluminium industries. Indeed, both the steel and aluminium investigations focused on the "state" of
the US steel and aluminium industries. The US Secretary of Commerce examined various injury
factors relating to the state of the US steel and aluminium industries and concluded that imports
adversely impacted t hose domestic industries. The "adverse impact" allegedly suffered by the US
steel and aluminium industries takes the form of a too low level of utilisation capacity, a decreased
production, unemployment and a negative impact on the financial situation of those industries. The
purpose of the adjustment measures imposed on imports of steel products and aluminium products
is, as stated in the Steel and Aluminium Reports and in the relevant Presidential Proclamations, to
address the "adverse impact" suffered by those industries. The fact that the measures at issue are
designed to prevent or remedy the injury allegedly caused by the imports to the US steel and
aluminium industries is further confirmed by numerous statements of the US President and of US
officials concerning those measures.
1.9. The conclusion that the measures at issue constitute "safeguard measures" is further supported
by certain additional characteristics of those measures including their extraordinary character as
temporary import restrictions, the ir complementary relationship with the existing trade remedy
measures, their focus on the imports of steel and aluminium products, and finally, the fact that they
were adopted pursuant to a procedure that is very similar to the procedure followed in US safeguard
investigations.
1.10. Contrary to what the United States argues, t he applicability of Article XIX and of the
Agreement on Safeguards does not depend on the invocation of Article XIX through a notification.
In other words, notification is not a condition precedent for a measure to be a safeguard measure.
Thus, the fact that the United States did not "invoke" Article XIX by notifying the challenged
measures pursuant to Article XIX:2 of the GATT does not mean that those measures are not
"safeguard measures".
1.11. While Article XIX:2 imposes an obligation to notify a safeguard measure and to provide an
opportunity to consult and requires that such notification and opportunity to consult must take place
prior to imposing the measure, those obligations are procedural in nature. Accordingly, if a Member
fails to notify its safeguard measure it will be acting inconsistently with the procedural requirements
provided for under Article XIX:2 but this failure will not impact the legal characterisation of the
measure as a safeguard measure.
1.12. This is confirmed by the findings of the panel in Dominican Republic – Safeguard Measures, a
dispute which examined the notification obligation in Article XIX:2 of the GATT 1994 for the first
time. The panel 's findings make it clear that Article XIX:2 is not relevant to the question of the
applicability of Article XIX to the challenged measures but to the question of their consistency with
that provision.2
1.13. The Appellate Body in Indonesia – Iron or Steel Products stressed the importance of
distinguishing between the features that determine whether a measure can be properly
characterized as a safeguard measure from the substantive conditions and procedural requirements
that must be met in order for the measure to be consistent with the Agreement on Safeguards and
the GATT 1994. In that regard, the Appellate Body warned against conflating factors pertaining to
the legal characterization of a measure for purposes of determining the applicability of the WTO
safeguard disciplines with the substantive conditions and procedural requirements that determine

2 Panel Report, Dominican Republic – Safeguard Measures, para. 7.433.

the WTO-consistency of a safeguard measure.3 The notification requirement set out in Article XIX:2
is one of such procedural requirements.
1.14. The fact that notification is not a condition precedent for the application of the safeguard
disciplines, but a procedural requirement, is further confirmed by the Agreement on Safeguards and,
in particular, Article 12 which further develops the general notification obligation set out in Article
XIX:2 of the GATT. Article 12 confirms that the notifications required under the safeguard disciplines
serve a transparency and information purpose. Notifications, and the information that they provide,
allow other Members to review the measures and to decide whether and how to respond to them.
Notifications do not determine whether a measure is a "safeguard measure".
1.15. Switzerland notes that various covered agreements contain different notification obligations.
This is the case, among others, of the Anti -Dumping Agreement, the SCM Agreement, the TBT
Agreement or the SPS Agreement. These notification obligations, which may relate to the Members'
legislation or to their specific measures, do not determine the applicability of those agreements but
relate invariably to the consistency of the Members' actions with the procedural obligations imposed
by those agreements.
1.16. Finally, the fact that a notification does not determine the legal characterisation of a measure
is confirmed by the 1993 Decision on Notification Procedures, annexed to the Uruguay Round
agreements, whereby Members committed to notify their adoption of trade measure s affecting the
operation of the GATT 1994 but recognized that notifications themselves are "without prejudice to
views on the consistency of measures with or their relevance to rights and obligations under the
Multilateral Trade Agreements". The Annex to that Decision, providing an indicative list of notifiable
measures, lists, among others, "safeguard actions". This clearly confirms that a notification of a
safeguard measure cannot determine the applicability of the safeguard disciplines to that measure.
1.17. Accepting the United States ' position that a notification is a "condition precedent " for a
measure to qualify as a safeguard measure would mean that a WTO Member could avoid the
application of the safeguard disciplines to its measure simply by not notifyin g it to the WTO
Committee on Safeguards.
1.18. In addition, Switzerland notes that certain aspects of the steel and aluminium import
adjustment measures fall within the scope of the Agreement on Safeguards not as safeguard
measures but rather as measures similar to voluntary export restraints ( "VERs") and orderly
marketing arrangements ("OMAs") prohibited under Article 11.1(b) of the Agreement on Safeguards.
Indeed, to the extent that the United States has sought, taken and maintains restrictions, such as
import quotas, pursuant to "arrangements" or "agreements" with some exporting countries, those
measures qualify as measures similar to VERs or OMAs which "afford protection" to the domestic US
steel and aluminium industries within the meaning of Article 11.1(b) and footnote 4 of the Agreement
on Safeguards.
1.19. Finally, contrary to what the United States argues, the fact that it has invoked Article XXI(b)
with respect to the measures at issue does not mean that these measures are excluded from the
scope of the Agreem ent on Safeguards by virtue of Article 11.1(c). Since the measures at issue
constitute safeguard measures, as explained above, pursuant to Article 11.1(a) they must conform
with the provisions of Article XIX of the GATT 1994 applied in accordance with the Agreement on
Safeguards. In other words, the Agreement on Safeguards applies to those measures and they are
not covered by the exclusion operated by Article 11.1(c).
2. The measures at issue are inconsistent with several provisions of the Agreement on
Safeguards and Article XIX of the GATT 1994
1.20. The measures at issue are inconsistent with Article XIX of the GATT and several provisions of
the Agreement on Safeguards. The United States has failed to address the substance of Switzerland's
safeguard claims.
1.21. First, the measures at issue are inconsistent with Article XIX:1(a) of the GATT 1994 because
the US authorities failed to demonstrate the existence of unforeseen developments and of the effect
of obligations incurred under the GATT 1994 and because they failed to demonstrate a logical

3 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.57.

connection between unforeseen developments and the effect of obligations incurred under the GATT
1994 and the increased imports.
1.22. In fact, neither the Steel and Aluminium Reports nor the relevant Presidential Proclamations
imposing the adjustment measures on imports of s teel and aluminium identify any events as
constituting "unforeseen developments". While the Reports refer to the global excess capacity in
steel and aluminium sectors, they fail to demonstrate why such global excess capacity constitutes
an "unforeseen development".
1.23. Second, the measures at issue are inconsistent with Article XIX:1(a) of the GATT 1994 and
Articles 2.1 and 4.2(a) of the Agreement on Safeguards because the United States has applied those
measures without having first determined that the products at issue "were 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, in accordance with those
provisions.
1.24. Third, the measures at issue are inconsistent with Article 2.2 of the Agreement on Safeguards
because the United States did not apply those measures to the products concerned imported
"irrespective of [their] sources". Indeed, the additional import dutie s on steel products are applied
on imports from all countries except Argentina, Australia, Brazil and South Korea and the additional
import duties on aluminium products are applied on imports from all countries except Argentina and
Australia. By excluding imports from certain countries from the scope of the safeguard measures at
issue, while imports from those countries have been taken into account in the investigations, the
United States has therefore failed to apply the measures to the products concerned "irrespective of
[their] sources", contrary to what is required by Article 2.2.
1.25. Fourth, the measures at issue are inconsistent with Articles 4.1 and 4.2(a) of the Agreement
on Safeguards and Article XIX:1(a) of the GATT because the US Secretary of Commerc e has not
properly determined that there is serious injury, or threat thereof, to a domestic industry, in
accordance with the requirements laid down in those provisions.
1.26. More specifically, the US Secretary of Commerce failed to make a determination concer ning
the "domestic industry" in accordance with the requirements of Article 4.1(c) for the purposes of
assessing whether such industry suffers from serious injury or threat thereof. Furthermore, by
merely concluding that the imports are "weakening" the US internal economy, the US authorities
failed to establish the existence of a "serious injury", defined as "a significant overall impairment in
the position of a domestic industry", suffered by the US steel and aluminium industries.
1.27. The measures at issue ar e also inconsistent with Article 4.2(a) of the Agreement on
Safeguards because the US Secretary of Commerce failed to examine all the injury factors listed in
that provision. In addition, even with respect to the factors that have been addressed in the Ste el
and Aluminium Reports, such as employment or production capacity, the US Secretary of Commerce
has failed to make an objective analysis and to provide a "reasoned and adequate" explanation on
how the facts support its determination that there is an adverse impact on the economic welfare of
the US steel and aluminium industries.
1.28. Fifth, the measures at issue are inconsistent with Article 2.1 and Article 4.2(b) of the
Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 because the US authorities failed
to demonstrate the existence of a causal link between increased imports and the alleged serious
injury or threat thereof and because they failed to ensure that the alleged serious injury or threat
thereof caused by factors other than increased imports was not attributed to increased imports.
1.29. Sixth, the United States did not comply with the requirements of Articles 3.1 and 4.2(c) of
the Agreement on Safeguards because (i) the authorities failed to provide the interested parties with
"the opportunity to respond to the presentations of other parties "; (ii) the interested parties have
not been provided a central role in the investigations and (iii) the authorities failed to provide a
reasoned and adequate explanation on all pertinent issues of fact and law.
1.30. Seventh, the measures at issue are inconsistent with Article 5.1 of the Agreement on
Safeguards and Article XIX:1(a) of the GATT 1994 because they are applied beyond the extent
necessary to prevent or remedy serious injury and to facilitate adjustment. Since the US authorities

failed to establish a causal link between the increase in imports and the injury as required by Article
4.2(b), they could not ensure that the safeguard measures were applied only "to the extent
necessary" to prevent or remedy that serious injury. Furthermore, there is no calibration between
the additional duties imposed, i.e. 25% on steel products and 10% on aluminium products, and the
objective of preventing or remedying serious injury and the additional import duties are not limited
in time and do not provide for any progressive liberalization.
1.31. Eight, the measures at issue are inconsistent with Articles 7.1 and 7.4 of the Agreement on
Safeguards because they have been applied 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.
1.32. Ninth, the measures at issue are inconsistent with Article 11.1(a) of the Agreement on
Safeguards because by taking those measures the United States has taken emergency actions on
imports of steel products and aluminium products as set forth in Article XIX of GATT 1994 while such
actions did not conform with the provisions of Article XIX of the GATT 1994 applied in accordance
with the Agreement on Safeguards.
1.33. Tenth, the United States acted inconsistently with Article 11.1(b) of the Agreement on
Safeguards because, through the measures at i ssue, it has sought, taken and maintained "other
measures" similar to VERs and OMAs. First, by inviting countries with which the Unites States has
"security relationship" to discuss "alternative means" to address the threat posed by the imports
from those countries, the United States has sought measures similar to VERs prohibited by Article
11.1(b). Second, the United States has also taken and maintains measures similar to VERs or OMAs
because it has agreed on "alternative means", including in the form of i mport quotas, with several
countries. In particular, the United States has agreed on quotas with respect to steel products with
South Korea, Argentina and Brazil and on quotas with respect to aluminium products with Argentina.
Given that those quantitative restrictions have been imposed following an agreement reached by
the United States and those countries they constitute measures similar to VERs or OMAs. Switzerland
notes that those quantitative restrictions (or quotas) are only one type of "alternative means" agreed
by the United States, as the Presidential Proclamations state that the United States and countries
such as Argentina or Australia agreed on a "range of measures". Although it is unclear what those
other measures are, the language of the releva nt Presidential Proclamations suggests that those
measures also fall within the scope of Article 11.1(b) of the Agreement on Safeguards and are
inconsistent with that provision.
1.34. Finally, the United States acted inconsistently with Articles 12.1, 12.2 and 12.3 of the
Agreement on Safeguards and Article XIX:2 of the GATT 1994 since it has failed to comply with any
of the notification and consultation obligations provided for in these provisions. First, the United
States acted inconsistently with Article 12.1 of the Agreement on Safeguards because it did not
notify the Committee on Safeguards upon initiating an investigatory process relating to serious injury
or threat thereof and the reasons for it, upon making a finding of serious injury or threat thereof
caused by increased imports, and upon taking a decision to apply or extend a safeguard measure.
Second, the United States also acted inconsistently with Article 12.2 because since it did not make
the relevant notifications it did not provide the Committee on Safeguards "with all pertinent
information" in making those notifications. Third, the United States failed to provide adequate
opportunity for prior consultations with Members having a substantial interest as exporters of the
product concerned as required by Article 12.3 of the Agreement on Safeguards and Article XIX:2 of
the GATT 1994.
B. The measures at issue are inconsistent with several provisions of the GATT 1994
1.35. First, the additional import duties imposed on imports of steel and aluminium products are
inconsistent with Article II:1(b) of the GATT 1994.
1.36. These additional import duties constitute "other duties or charges" within the meaning of the
second sentence of Article II:1(b) of the GATT 1994. First, the additional import duties do not
replace, but rather coexist with, the MFN tariff. Second, they are extraordinary in nature since their
purpose is to protect the domestic industry from import competition on the ground of an alleged
threat to the national security of the United States following a specific investigation of the US

Secretary of Commerce. Third, the additional import duties only apply on imports of steel and
aluminium products originating in certain M embers. Fourth, they appear to be imposed on a
temporary rather than permanent basis. These characteristics demonstrate that the additional
import duties on steel and aluminium products constitute "other duties or charges " within the
meaning of Article II:1(b) of the GATT 1994. Those additional import duties are inconsistent with
that provision since they are in excess of those recorded in the United States ' Schedule of
Concessions.
1.37. Switzerland further submits that, if the additional import duties imposed on steel and
aluminium products are considered to be "ordinary customs duties " (and not "other duties or
charges"), they are inconsistent with the first sentence of Article II:1(b) of the GATT 1994 because
they are in exce ss of those set forth in the relevant part of the United States ' Schedule of
Concessions.
1.38. Second, as a consequence, the measures at issue are also inconsistent with Article II:1(a) of
the GATT 1994 since, by applying those measures, 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.
1.39. Third, the measures at issue are inconsistent with Arti cle I:1 of the GATT 1994 since, by
exempting from the imposition of the additional duties imports from certain countries, namely
Australia, Argentina, South Korea and Brazil in case of additional import duties on steel products
and Argentina and Australia in case of additional import duties on aluminium products, the United
States has granted to the products from those countries an "advantage, favour, privileged or
immunity" within the meaning of Article I:1 of the GATT 1994 that has not been accorded
immediately and unconditionally to like products originating in other WTO Members, including
Switzerland.
1.40. Fourth, the measures at issue are also inconsistent with Article XI:1 of the GATT 1994 because
by imposing quotas on imports of steel products from South K orea, Argentina and Brazil, and on
imports of aluminium products from Argentina, the United States has instituted and maintains
restrictions other than duties, taxes or other charges, made effective through quotas, on the
importation of steel and aluminium products of the territory of other Members.
1.41. Fifth, the administration of the Presidential Proclamations and of the product exclusion
mechanism is inconsistent with Article X:3(a) of the GATT 1994.
1.42. Switzerland submits that, by providing for the possibility to countries with which the United
States has "important security relationships " of agreeing on "alternative means " to address the
alleged threat to the national security caused by the imports from those countries, without any
indication as to what such "alternative means" might be and what is the process as well as the
requirements to agree on such "alternative means ", the United States fails to administer the
Presidential Proclamations regarding import adjustments with respect to steel and aluminium
products in a uniform, impartial and reasonable manner.
1.43. Switzerland also submits that the United States fails to administer in a reasonable manner
the product exclusion mechanism foreseen by Presidential Proclamations 9704 and 9705 and
governed by specific ru les set out in the Supplements to Section 705 of the Code of Federal
Regulations. More specifically, Switzerland considers that the criteria that a product is (i) "not
produced in the United States in a sufficient and reasonably available amount" and (ii) "not produced
in the United States in a satisfactory quality", both expressed in the revised Supplements to Section
705, establish the lack of reasonable administration. This unreasonable administration of the product
exclusion mechanism is further aggrava ted by the fact that the examination of product exclusion
requests notoriously exceeds the 90-day deadline established in the Supplements to Section 705.
1.44. Finally, Switzerland submits that by failing to provide any criteria for the examination of the
need to amend or to discontinue the import adjustment measures, the United States fails to
administer the Presidential Proclamations regarding import adjustments with respect to steel and
aluminium products in a uniform and reasonable manner.

III. CLAIMS AGAINST SE CTION 232 AS REPEATEDLY INTERPRETED BY THE US
AUTHORITIES AND ITS ONGOING USE
1.45. Switzerland also challenges Section 232, as repeatedly interpreted by the US authorities and,
in the alternative, the ongoing use of Section 232.
1.46. Section 232 as interpreted by the US authorities provides for the imposition of measures that
restrict imports in order to shield domestic production from competition with foreign products on the
grounds of an alleged threat to the national security. Indeed, Section 232 as repeatedly interpreted
by the US authorities provides for the imposition of restrictions on imports of products from other
WTO Members, on the grounds of an alleged threat to national security, because the imports of such
products, taking into account their quantities and/or the circumstances, cause or threaten to cause
injury to the domestic industry. This interpretation is based on an increasingly expansive reading of
the notion of "national security" in Section 232. That interpretation is reflected in the reports adopted
by the USDOC in the context of the steel and aluminium investigations, multiple statements by
President Trump and other US officials as well as the information relating to the investigation
concerning imports of automobiles.
1.47. In the alternative, Swit zerland challenges the ongoing use of Section 232 so as to afford
protection to the domestic production by restricting imports on the grounds of an alleged threat to
the US national security. This use of Section 232 is ongoing and likely to continue in the future as
evidenced by the steel and aluminium investigations, the investigations into imports of automobiles
and titanium sponge as well as multiple statements of the US officials including President Trump.
1.48. These measures are inconsistent with the balanc e of rights and obligations under the WTO
Agreement as they constitute an "emergency action " mechanism which essentially amounts to
safeguard mechanism without complying with the rules set out in Article XIX of the GATT and the
Agreement on Safeguards.
1.49. More specifically, the measures at issue are inconsistent with Article XIX:1(a) of the GATT
1994 and Articles 2.1, 4.1 and 4.2 of the Agreement on Safeguards since they provide for the
imposition of import restrictions in order to protect a domestic indust ry from foreign competition,
without examining whether the products at issue are being imported into 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 li ke or directly competitive products, as a result of unforeseen
developments, and of the effects of the obligations incurred under the GATT 1994.
1.50. Furthermore, the measures at issue are inconsistent with Article 3.1 of the Agreement on
Safeguards since they provide for the imposition of safeguard measures without providing for an
investigation whereby the US authorities actively seek out from the interested parties the
information that is used in the investigation and without providing for the publication of a report
setting forth their findings and reasoned conclusions reached on all pertinent issues of fact and law.
1.51. The measures at issue are also inconsistent with Articles 5.1, 7.1 and 7.4 of the Agreement
on Safeguards since they do 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 they fail to provide that those measures cannot exceed four years and that
they shall be progressively liberalised at regular intervals.
1.52. In addition, the measures at issue are inconsistent with Article 11.1(a) of the Agreement on
Safeguards since they constitute a mechanism of "emergency action" as set forth in Article XIX of
the GATT 1994 that doe s not conform with the provisions of that Article and is not applied in
accordance with the Agreement on Safeguards.
1.53. These measures are also inconsistent with Articles II:1(a) and (b) and Article XI:1 of the GATT
1994. Indeed, those measures provide for the imposition of additional duties and import restrictions
other than duties, taxes or other charges without consideration of whether such duties or restrictions
contrary to the United States' WTO obligations.
1.54. Finally, these measures are inconsistent with Article XVI:4 of the WTO Agreement because
through those measures the United States fails to ensure the conformity of its laws, regulations and

administrative procedures with its obligations under the GATT 1994 and the Agreement on
Safeguards.
1.55. Switzerland's claims against those measures are essential since the Panel 's ruling on those
claims would prevent the United States from imposing further unlawful trade -restrictive measures
under the guise of protecting national security pursuant to Section 232.
IV. THE UNITED STATES' INVOCATION OF ARTICLE XXI(B) OF THE GATT 1994
A. Introduction
1.56. The United States does not dispute the existence of the measures challenged in this dispute
nor their inconsistency with the WTO covered agreements. Instead, the United States' entire defence
with respect to all aspects of this dispute is based on Article XXI(b) of the GATT. The United States
submits that because it has invoked Article XXI(b) the entire dispute becomes non -justiciable
meaning that the sole finding that the Panel may make is to note the US invocation of Article XXI.
1.57. Although the United States alleges that its measures are justified under Article XXI(b) of the
GATT 1994, it has not even clearly indicated the specific subparagraph of Article XXI(b) on which it
relies and has not provided any argument or evidence to substantiate its defence.
1.58. Switzerland submits that the United States errs in its interpretation of Article XXI(b) and has
manifestly failed to meet its burden of proof. This means that, if the Panel disagrees with the United
States' proposition about the self-judging nature of Article XXI(b), the Panel must reject the United
States' defence and find in favour of Switzerland.
B. The order of analysis and the burden of proof under Article XXI(b) of the GATT 1994
1.59. Article XXI(b) of the GATT 1994 constitutes an affirmative defence that may be invoked to
justify a measure that is inconsistent with the GATT 1994. This has important implications for the
order of analysis that should be followed by this Panel and the allocation of the burden of proof.
1.60. First, in terms of the order of analysis, the nature of Article XXI(b) implies that the Panel must
start its examination by reviewing Switzerland 's claims in order to determine whether there is a
violation before turning to the United States' defence under Article XXI(b).
1.61. As explained by the Appellate Body, "an analysis of whether a measure infringes an obligation
necessarily precedes, and is distinct from, the 'further and separate' assessment of whether such
measure is otherwise justified".4 Thus, in the present case, the Panel must first address Switzerland's
claims of violation before addressing the United States ' defence under Article XXI. If there is no
violation, a defence under Article XXI would not even come into play.
1.62. Second, the fact that a provision is an affirmative defence means that the burden of proof is
on the party asserting that defence. The United States, being the party invoking Article XXI(b), bears
the burden of proving first that its defence und er Article XXI(b) of the GATT 1994 is available and
second (and if so) that the conditions laid down in Article XXI(b) are fulfilled.
1.63. Contrary to what the United States argues, to discharge this burden with respect to Article
XXI(b), it is not enough for a Member invoking that provision to indicate that it considers one or
more of the circumstances set forth in Article XXI(b) to be present. Article XXI(b) contains a number
of conditions that must be satisfied in order for a Member to justify its otherwise GATT-inconsistent
measure under that provision. Thus, in order to discharge its burden of proof under Article XXI(b)
of the GATT 1994, the United States has to establish that the measures at issue satisfy all the
conditions laid down in Article XXI(b). However, the United States has failed to do so.
C. The invocation of Article XXI of the GATT 1994 by the United States is subject to
review by the Panel

4 Appellate Body Report, Thailand – Cigarettes (Philippines), para. 173.

1. Introduction
1.64. The United States claims that Article XXI(b) is self -judging and that this understanding is
based on the text and context of the provision itself and is confirmed by the subsequent agreement
of the GATT Contracting Parties regarding the interpretation and application of tha t provision, as
well as the negotiating history of that provision. The United States also alleges that WTO Members,
including the United States, have "repeatedly" expressed the view that Article XXI(b) is self-judging.
1.65. Switzerland submits that interpreting Article XXI(b) as a self-judging provision not subject to
review by a panel is first of all manifestly inconsistent with fundamental obligations and principles
set out in the covered agreements, in particular in the DSU. Furthermore, the correct interpretation
of Article XXI(b), on the basis of the ordinary meaning of its terms, taken in their context and in
light of the object and purpose of the GATT 1994 and the WTO Agreement, clearly establishes that
the WTO Member invoking Article XXI(b) as a defence does not enjoy absolute discretion and the
panel needs to review whether the conditions set out in that provision are satisfied. Finally, while
recourse to supplementary means of interpretation, including the negotiating history, is not
necessary, such sup plementary means additionally confirm that Article XXI(b) is reviewable by
panels.
2. Interpreting Article XXI(b) of the GATT 1994 as a self -judging provision contradicts
fundamental obligations and principles of the covered agreements
1.66. Various principles and obligations included in the WTO covered agreements and, in particular,
in the DSU establish that the Panel shall duly exercise its jurisdiction.
1.67. First, the United States' position is contrary to Articles 1.1 and 1.2 of the DSU. Article XXI(b)
is not excluded from the scope of the DSU.
1.68. Second, based on Article 7 of the DSU, this Panel is required, in accordance with its terms of
reference, to examine the claims raised by Switzerland in its Panel request and to make findings, in
the light of the relevant pro visions of the covered agreements cited by Switzerland and the United
States, including Article XXI(b).
1.69. Third, the Panel must make an objective assessment of the matter pursuant to Article 11 of
the DSU, including "an objective assessment of the facts of the case and the applicability of and
conformity with the relevant covered agreements". If the Panel were to merely note that the United
States has invoked Article XXI(b) of the GATT 1994, it would not make "an objective assessment of
the matter", including an objective assessment of the facts of the case and of the applicability of
and conformity with the relevant covered agreements". As the Appellate Body noted, "[i]t is difficult
to see how a panel would fulfil that obligation [under Article 11] if it de clined to exercise validly
established jurisdiction and abstained from making any finding on the matter before it".
1.70. The United States seeks to make a distinction, allegedly based on Articles 7.1 and 11 of the
DSU, between what it describes as being two dif ferent functions of panels "(1) '[t]o examine the
matter – that is, to '[i]nvestigate the nature, condition or qualities of (something) by close inspection
or tests'; and (2) to 'make such findings as will assist the DSB in making the recommendations or
in giving the rulings provided for' in the covered agreement". The United States further argues that
this Panel (i) should only examine the matter, which in the present dispute would be limited to an
acknowledgement of the US invocation of Article XXI(b), and (ii) cannot make any findings that will
assist the DSB in making a recommendation because the dispute presents an issue that is not
justiciable.
1.71. Switzerland submits that that approach is fundamentally flawed and finds no legal basis in
the DSU nor in any other covered agreements. Pursuant to Article 11 of the DSU, panels must make
an objective assessment of the facts of the case and the applicability of and conformity with the
relevant covered agreements. This implies making findings with respect to the claims raised by the
complainants. In some cases, panels will be also required to make "such other findings" pursuant to
Article 11 of the DSU as may be necessary for the DSB to make the recommendations or give the
rulings provided for in the covered agreements.

1.72. Fourth, the United States ' argument that the matter is non -justiciable is inconsistent with
Article 23 of the DSU. Concluding that this Panel cannot make findings on Switzerland's claims would
"diminish" Switzerland's right to seek redress within the meaning of Article 23 of the DSU and to
bring a dispute pursuant to Article 3.3 of the DSU. It would also be inconsistent with Article 23.2(a)
of the DSU which prohibits Members from making a determination to the effect that a violation has
occurred, except through recourse to the multilateral dispute settlement system. Accepting the
United States' argument that Article XXI(b) is "self-judging" would render the principle of compulsory
WTO dispute settlement inutile.
1.73. Fifth, Switzerland submits that concluding that Article XXI(b) is self -judging would also
undermine the role of the dispute settlement system as a "central element in providing security and
predictability to the multilateral trading system".
1.74. Finally, while the United States initially argued in the proceedings that the invocation of Article
XXI of the GATT 1994 prevents the Panel from exercising its jurisdiction in relation to the entire
dispute due to the political nature of essential security interests, it appears to have abandoned that
argument during the proceedings. In any case, this argument must be rejected by the Panel because
it has no basis in the DSU and in fact is contrary to several of its provisions, including Articles 3.2,
3.3, 7, 11, 12, 19 and 23.
3. The invocation of Article XXI(b) is subject to the panel's review in accordance with the ordinary
meaning of its terms, context and the object and purpose of the GATT 1994
a. The text of Article XXI(b)
1.75. The United States' assertion that Article XXI(b) is "self-judging" is based on its reading that
the phrase "which it considers " in the chapeau applies to all elements in Article XXI(b), including
each subparagraph ending of that clause and on the understanding that the word "consider" implies
boundless discretion for the Member invoking that defence with respect to all elements qualified by
that word. This is manifestly erroneous.
1.76. First, it is clear from the text of Article XXI(b), including its structure and grammar, that the
phrase "which it considers " only qu alifies the "necessity" of the action and does not qualify the
subparagraphs nor the remaining part of the chapeau.
1.77. In terms of structure, Article XXI(b) of the GATT 1994 is composed of two distinct parts: on
the one hand, the chapeau and on the other hand, the three subparagraphs which list circumstances
(the first two identifying the types of goods and the third being a temporal circumstance) which
must objectively be met in order for a Member to take action under the chapeau. The chapeau then
elaborates on additional conditions that must be met in order for the action taken by the Member to
be justified under Article XXI(b). The same structure is found in Article XX of the GATT 1994 which
lists the general exceptions of that agreement.
1.78. It is also clear from the wording and the grammatical structure of Article XXI(b) that the three
subparagraphs and the circumstances identified therein qualify the word "action" in the chapeau and
are not part of the clause "which it considers necessary for the protection o f its essential security
interests".
1.79. The United States does not dispute that subparagraph (iii) relates to the word "action" in the
chapeau. However, the United States erroneously argues that the relevant question is "whether the
Member considers the action to be 'taken in time of war or other emergency in international
relations'". The United States' interpretation ignores the grammatical construction of Article XXI(b).
Indeed, to the extent that subparagraph (iii) qualifies the "action", it is not in any way connected to
the words "which it considers" in the chapeau.
1.80. The United States erroneously argues that "the relative clause that follows the word 'action'
begins with 'which it considers ' and ends with 'taken in time of war or other emergency in
international relations'." In fact, the relative clause starts with "which it considers" and ends at the
end of the chapeau with "essential security interests". The subparagraphs (i), (ii) and (iii) are not
part of the relative clause. They constitute coordinated participial clauses which relate directly and
modify the noun "action" in the chapeau. More specifically, subparagraphs (i), (ii) and (iii) constitute

a case of "coordinate construction", which in the context of Article XXI(b) means that the three
subparagraphs must have the same function. Given that it is undisputed and undisputable that
subparagraph (iii) relates to the noun "action", it m eans that all three subparagraphs modify the
noun "action" in the chapeau.
1.81. Thus, in Article XXI(b), we have a case of double modification of the noun "action": the first
modifier is the relative clause ( "which it considers necessary for the protection of its essential
security interests") while the second modifier is the coordinate construction including (i), (ii) and
(iii).
1.82. This analysis is not only supported by, but also is the only one consistent with, the French
and Spanish versions of Article XXI(b). In particular, in the Spanish version, the word "relativas" is
not included in the subparagraphs but at the end of the chapeau to introduce the three
subparagraphs. Given that this word is feminine and plural, it can relate to the only other word in
the chapeau which is feminine and plural, i.e. "medidas" ("action"). The grammatical structure in
the Spanish version renders the interpretation put forward by the United States simply impossible.
1.83. Second, the chapeau and subparagraphs identify objective eleme nts that are subject to
objective determination by a panel.
1.84. Regarding the subparagraphs, they all refer to objective elements, as noted by the panel in
Russia – Traffic in Transit .5 First of all, the fact that the circumstances identified in the three
subparagraphs are exhaustive, as acknowledged by the United States, implies that Member cannot
take action pursuant to Article XXI(b) in circumstances other than the ones listed in Article XXI(b).
If a WTO Member were to determine for itself whether the circumstances listed in subparagraphs (i)
to (iii) are met, there would have been no need to identify those specific circumstances.
1.85. Subparagraphs (i) and (ii) refer to action "relating to" "fissionable materials…" and "traffic in
arms…". The phrase "relating to" requires "a 'close and genuine relationship of ends and means '
between the measure and the objective of the Member adopting the measure ". This constitutes an
objective element that is subject to objective determination.
1.86. Subparagraph (iii) refers to action "taken in time of war or other emergency in international
relations". The phrase "taken in time of" describes the connection between the action and the events
of war or other emergency in international relations. This connection is a temporal one – as the
United States acknowledges. That temporal connection is an objective fact, amenable to objective
determination. Likewise, the existence of a "war or other emergency in international relations " is
also an objective fact that is amenable to objective determination. This has also been confirmed by
the panel in Russia – Traffic in Transit.6
1.87. Regarding the chapeau, the fact that the phrase "essential security interests " of a Member
implies a degree of discretion, does not mean that whether an interest may be regarded as an
"essential security interest " may not objectively be assessed by a panel. Similarly, a panel must
make an objective assessment of whether there is a rational connection between the action taken
and the protection of the Member's essential security interests.
1.88. Finally, the United States erroneously interprets the word "considers" as implying boundless
discretion. The word "consider" is defined inter alia as to "estimate, reckon". Thus, the Member
taking the action must "estimate" or "reckon" that the action taken is "necessary" for the protection
of its essential security interests. This meaning is consistent with the French and Spanish versions
of Article XXI(b).
1.89. Switzerland submits that the discretion granted to the Member as to th e "necessity" of its
action implies that no comparison of the action taken by that Member against a benchmark of a less
trade restrictive action that could have been taken by that WTO Member instead is required.
However, the Member invoking that defence mu st still present the grounds for its finding of the

5 Panel Report, Russia – Traffic in Transit, para. 7.82.
6 Panel Report, Russia – Traffic in Transit, paras. 7.70-7.71.

"necessity" of the measure in order for the panel to assess whether the Member has exercised its
discretion in good faith.
b. The context of Article XXI(b)
1.90. The immediate context provided by the other paragraphs of Article XXI, as well as the broader
context provided by other provisions of the GATT 1994 and other WTO agreements support the
conclusion that Article XXI(b) is reviewable by a panel.
1.91. First, the United States claims that the language of Article XX I(a) supports the view that
Article XXI(b) is not subject to review by a panel since a panel "may have no facts at all upon which
to base its review of what it considers to be 'objective' facts." These arguments are baseless, purely
speculative and must be rejected.
1.92. Article XXI(a) merely notes that a Member does not need to provide information "the
disclosure of which " it considers contrary to its essential security interests. Thus, that provision
acknowledges that there might be situations in which a Memb er considers that the disclosure of
certain information is contrary to its essential security interests, in which case it does not have to
provide such information. A Member acting under Article XXI(a) would be required to explain why
the disclosure of certain information is contrary to its essential security interests. This would require
at a minimum identifying the "essential security interests" at stake and explaining why it considers
that the disclosure of the information in question is contrary to thos e essential security interests.
The same reasoning applies under Article XXI(b).
1.93. Importantly, the provision of Article XXI(a) does not relieve a WTO Member from its burden
of proof in the context of dispute settlement proceedings. Article XXI(a) does not change the principle
confirmed by the Appellate Body that "the burden of proof rests upon the party, whether complaining
or defending, who asserts the affirmative of a particular claim or defence".7
1.94. Second, the broader context provided by other provisions of the GATT 1994, in particular
Article XX, also supports the conclusion that the invocation of Article XXI(b) is reviewable by a panel.
1.95. Both provisions, Article XX and Article XXI, constitute defen ces to measures that are
inconsistent with the GATT 1994. They are in the nature of "affirmative defences", which means that
it is up to the party invoking the exception to offer proof that the conditions set out in the provision
laying down the exception are met. Thus, a Member cannot merely invoke Article XX or Article XXI
but has to establish that the measures that are inconsistent with its obligations under the GATT 1994
satisfy the conditions laid down in Article XX or in Article XXI.
1.96. Switzerland notes that the United States erroneously seeks to distinguish Article XXI(b) from
Article XX of the GATT 1994. Contrary to what the United States argues, the absence of the phrase
"which it considers" in Article XX(a), (b) and (d) which provide exceptions for measures "necessary
to protect public morals", "necessary to protect human, animal or plant life or health" and "necessary
to secure compliance with laws and regulations […] ", does not imply that Article XXI(b) is self -
judging. The phrase "which it considers" implies that, unlike Article XX(a), (b) or (d), Article XXI(b)
does not require a comparison of the measure taken by a Member against a benchmark of an
alternative less trade restrictive measure.
1.97. Moreover, in arguing that in Article XXI(b) there is only one "requirement for applicability of
the exception" which is included in the chapeau namely "that the Member taking the action must
consider that action necessary for the protection of its essential security interests", the United States
disregards the subparagraphs. The three subparagraphs in Article XXI(b) identify circumstances that
must objectively be met in order for a Member to take action under the chapeau. The chapeau then
elaborates on additional conditions that must be met for the action taken to be justified under Article
XXI(b). The structure of Article XXI(b), similar to that of Article XX, requires examining first whether
the measure falls under one of the cir cumstances listed in the subparagraphs and second whether
the measure satisfies the requirements of the chapeau.

7 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.

c. The object and purpose
1.98. The object and purpose of the GATT 1994 is inter alia "the security and predictability of 'the
reciprocal and mutually a dvantageous arrangements and the substantial reduction of tariffs and
other barriers to trade '". The possibility to completely shield a trade -restrictive measure from any
scrutiny by merely invoking Article XXI(b) would be entirely contrary to the security and
predictability of the multilateral trading system established by the GATT 1994 and the WTO
Agreements. Moreover, the need to keep that balance between the right of a Member to invoke an
exception, including the Article XXI(b) exception, and the substa ntive rights of the other Members
under the GATT 1994, implies that the invocation of Article XXI(b) as an exception is necessarily
reviewable by a panel.
4. The negotiating history and other supplementary means of interpretation support
Switzerland's interpretation of Article XXI(b) as not self-judging
1.99. Switzerland submits that there is no need to look at supplementary means of interpretation.
The interpretation based on the text of Article XXI(b) in its context and in light of the object and
purpose of the GATT is clear: Article XXI(b) is not self-judging.
1.100. Pursuant to Article 32 of the Vienna Convention, supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of its conclusion, may be used
to confirm the meaning established pursuant to Article 31. Supplementary means, however, cannot
be used to determine the meaning of a provision, unless Article 31 interpretation leaves the meaning
ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. In the present
case the Panel may resort to the secondary means of interpretation pursuant to Article 32 of the
Vienna Convention only to confirm the meaning that results from the interpretation in line with
Article 31.
1.101. If the Panel decides to refer to the negotiating history, the negotiating history confirms that
Article XXI(b) is not "self-judging" as claimed by the United States.
1.102. First, contrary to what the United States argues, when examined holistically, the negotiating
history of the GATT 1947 confirms that Article XXI(b) was not designed to be self -judging, and the
redress for Article XXI(b) measures was never limited to non -violation complaints under the GATT
1947.
1.103. Second, the 1949 Czechoslovakia Decision does not show that Article XXI(b) is self-judging.
Contrary to what the United States argues that decision is not a "subsequent agreement" within the
meaning of Article 31(3)(a) of the Vienna Convention for the purpose of interpreting Article XXI(b)
of the GATT 1994. In any event, the 1949 Czechoslovakia Decision does not demonstrate the
existence of a "common understanding" as to the "justiciability" of Article XXI(b).
1.104. Third, the views of the GATT Contracting Parties referred to by the United States do not
meet the requirements of a "subsequent practice " set out in Article 31(3)(b) of the Vienna
Convention.
1.105. Fourth, the negotiating history of the GATT 1994 confirms that measures under Article XXI
were always meant to be subject to a panel 's review under Article XXIII of the GATT 1994 and the
DSU.
1.106. Finally, contrary to what the United States argues, nothing in the negotiating history of the
GATS and the TRIPS Agreement suggests that the security exceptions contained in those agreements
are self-judging.
D. The United States has failed to substantiate its defence under Article XXI(b) of the
GATT 1994
1. Introduction
1.107. The United States asserts that, although the Member invoking Article XXI(b) does not have
"to provide an explanation or to produce evidence to justify its invocation ", it may nonetheless

choose to make information available to other Members. The United States claims that it "made
extensive information available in relation to its actions under Section 232 through the steel and
aluminum reports and Presidential Proclamations" and that, if the Panel were to review the evidence,
that evidence would show that the measures were taken "in time of war or other emergency in
international relations".
1.108. Switzerland notes that the United States has not properly invoked subparagraph (iii) of
Article XXI(b). In particular, the United States ' statement that the available information in relation
to its action under Section 232 "could be understood to relate most naturally to the circumstances
described in Article XXI(b)(iii)" and a reference, at a very general level to the Steel and Aluminium
Reports and the Presidential proclamations in its opening statement at the first meeting of the Panel
does not suffice to meet the requirement of articulating the defence "promptly and clearly".
1.109. Switzerland further submits that making information available is not sufficient to meet the
burden of proof under Article XXI (b). In particular, while panels enjoy latitude to develop their
reasoning and to decide which evidence on record they wish to rely upon in reaching their findings,
that discretion is limited by the requirement that the party satisfies its burden of proof by adducing
both evidence and arguments "sufficient to make a prima facie case in relation to each of the
elements of its claims ". Switzerland submits that it is not for the Panel to make the case for the
United States.
1.110. In any event, the United States errs in its interpretation of the terms of Article XXI(b)(iii).
Moreover, the United States, consistent with its interpretation of Article XXI(b) as self-judging, has
not submitted any specific facts, evidence or arguments to establish that the measures at issue have
been "taken in time of war or other emergency in international relations" and "for the protection of
its essential security interests". The Panel should thus find that the United States failed to meet its
burden of proof under Article XXI(b).
2. Interpretation of Article XXI(b)(iii) of the GATT 1994
1.111. In accordance with the principles of treaty interpretation, Article XXI(b)(iii) must be
interpreted on the basis of the ordinary meaning of its terms taken in their context.
1.112. Starting with subparagraph (iii), the words "in time of" indicate that a temporal connection
must be established between the action taken and the war or other emergency in international
relations. It requires that the action be taken during the war or other emergency in int ernational
relations".8
1.113. Subparagraph (iii) also refers to "emergency in international relations". That phrase can be
generally understood as a situation of danger or conflict among sovereign states. The use of the
word "grave" in the French and Spanish versions also suggests that not every difficulty or issue in
international relations may justify re course to Article XXI(b), such tension must be sufficiently
serious. Furthermore, subparagraph (iii) does not merely refer to "emergency in international
relations", but to "war or other emergency in international relations". The use of the conjunction "or"
together with the adjective "other" indicates "that war is one example of the larger category of
'emergency in international relations'".9 The panel in Saudi Arabia – Protection of IPRs relied on the
interpretation of those terms provided by the panel in Russia – Traffic in Transit.
1.114. It follows from the correct interpretation of subparagraph (iii) that "an emergency in
international relations" in the third subparagraph of Article XXI(b) appears "to refer generally to a
situation of armed conflict, or of latent armed conflict, or of heighted tension or crisis, or of general
instability engulfing or surrounding a state".10
1.115. Turning to the chapeau, it refers to "action which [the Member taking the measure] considers
necessary for the protection of its essential security interests".

8 Panel Report, Russia – Traffic in Transit, para. 7.70.
9 Panel Report, Russia – Traffic in Transit, paras. 7.73-7.75.
10 Panel Report, Russia – Traffic in Transit, para. 7.76.

1.116. The phrase "essential security interests" implies that not any "interests" may justify an action
under Article XXI(b), only "essential security interests" do. As confirmed by the panels in previous
disputes, the concept of "essential security interests" "may generally be understood to refer to those
interests relating to the quintessential functions of the state, namely, the protection of its territory
and its population from external threats, and the maintenance of law and public order internally".11
1.117. While it is left in general to WTO Members to define what are their essential security
interests, this discretion is not unlimited and a panel will have to review whether the interests that
have been identified by the Member invo king Article XXI(b) fall within the scope of what is
understood as "essential security interests".
1.118. The terms "essential security interests" must be interpreted in their context, i.e. in light of
the circumstances identified in the three subparagraphs of Ar ticle XXI(b). Those interests "are all
defence and military interests, as well as maintenance of law and public order interests". Switzerland
thus disagrees with the United States ' assertion that the definition of "essential security interests"
is broad enough to encompass an emergency that concerns injury to domestic industry, or threat
thereof, caused by increased imports. "Essential security interests " are distinct from economic
interests of a particular domestic industry harmed by increased imports. Thi s type of economic
interests may be protected through the imposition of safeguard measures but would not qualify as
"essential security interests" within the meaning of Article XXI(b).
1.119. Furthermore, the Member invoking Article XXI(b), in this case the United States, also has to
demonstrate that the action is "for the protection" of its essential security interests. The phrase "for
the protection" in Article XXI(b) must be understood as "directed at protecting" a Member's essential
security interests. This phrase suggests that there must be a rational relationship between the action
taken by the Member concerned and the protection of its essential security interests.
1.120. Finally, Switzerland submits that the phrase "which it considers" in the chapeau only qualifies
the "necessity" of the action, and not the phrase "for the protection of its essential security interests",
nor the subparagraphs.
1.121. The use of the phrase "which it considers" which qualifies the "necessity" of the action implies
that a certai n degree of discretion is granted to the Member taking action under Article XXI(b)
regarding the "necessity" of its action. In particular, it implies that no comparison of the action taken
by the Member concerned against a benchmark of an alternative less trade restrictive action that
could have been taken by that Member is required. It also implies that the Panel does not have to
weigh and balance the relative importance of the interest at stake, the contribution of the measure
to the objective it pursues and the degree of trade -restrictiveness of the measure such as what is
required under the necessity test for instance under Article XX(a).
1.122. It remains, however, necessary for the Member invoking Article XXI(b), i.e. the United States
in this dispute, to present the grounds forming the basis of why the measure taken by that Member
is "necessary" in order for the Panel to assess whether the Member has exercised its discretion in
good faith.
3. The United States has failed to demonstrate that the conditions of Article XXI(b)(iii) are met
1.123. The United States errs when stating that the findings in the Steel and Aluminium Reports
are consistent with the United States claiming that an "other emergency in international relations "
exists and that "national security" as used in the Steel and Aluminium Reports falls within the scope
of the United States' essential security interests under Article XXI(b).
1.124. First, there is no situation of "emergency in international relations" in the case of the steel
and aluminium measures. The United States refers to the findings in the Steel Report about the
"global excess steel capacity" and the "global excess steel production led by China". However, excess
in global production and in global production capacity, and displacement of domesti c products by
imports do not constitute elements establishing an "emergency in international relations ". Purely
economic factors, such as those referred to by the United States clearly do not establish the

11 Panel Reports, Russia – Traffic in Transit, para. 7.130; Saudi Arabia – Protection of IPRs, para.
7.249.

existence of an emergency in international relatio ns within the meaning of Article XXI(b)(iii),
meaning a "situation of armed conflict, or of latent armed conflict, or of heighted tension or crisis,
or of general instability engulfing or surrounding a state ". Nothing in the Steel and Aluminium
Reports, nor in the Presidential Proclamations, even indirectly refers to anything like an "emergency
in international relations".
1.125. Second, the United States also errs in its interpretation of the phrase "its essential security
interests" and in alleging that "the term 'national security' – as used in the context of Section 232
and the steel and aluminum reports – squarely falls within the scope of '[a Member's] essential
security interests' under Article XXI".
1.126. The findings in the Steel and Aluminium Reports are unrelated to "external threats" and "the
maintenance of law and public order ". For the United States, "national security" for the purpose of
Section 232 means "general security and welfare of certain indu stries, beyond those necessary to
satisfy national defense requirements, which are critical to minimum operations of the economy and
government". In the Steel and Aluminium Reports, the USDOC focused on the financial viability and
overall economic situation of the US steel and aluminium industries. However, the general "economic
welfare of individual domestic industries " at issue in the steel and aluminium measures does not
constitute a "defence and military interest " or an interest relating to the "maintenance of law and
public order".
1.127. The economic interests of specific industries which are harmed by competition with imports
would not qualify as "essential security interests" within the meaning of Article XXI(b) of the GATT
1994. The protection of purely e conomic interests is addressed in particular in Article XIX of the
GATT 1994 and in the Agreement on Safeguards which focus on situations of "economic emergency".
The Steel and Aluminium Reports and the Presidential Proclamations demonstrate that the steel and
aluminium measures fall within the scope of Article XIX of the GATT 1994 and the Agreement on
Safeguards and not Article XXI(b) of the GATT 1994.
1.128. Finally, the United States ' arguments in respect of good faith lack merit. In the context of
Article XXI, the principle of good faith implies that even though that provision grants a certain
discretion to a Member invoking it, that discretion is limited by the obligation to interpret and apply
Article XXI in good faith. However, the principle of good faith does not relieve the Member invoking
it of its burden to show that it fulfils the legal requirements provided for in Article XXI(b). In these
proceedings, the United States did not demonstrate that the measures at issue were taken "in time
of war or other emergency in international relations" and "for the protection of its essential security
interests" and did not provide an explanation as to how and why it considers the measures at issue
as "necessary" for the protection of its essential security interests. The United Sates thus failed to
meet the legal requirements set out in Article XXI(b)(iii).
E. Article XXI of the GATT 1994 is not available as a defence to justify measures that
are inconsistent with Article XIX of the GATT 1994 and the Agreement on Safeguards
1.129. Contrary to what the United States argues, the fact that a Member invokes Article XXI(b) of
the GATT to justify the challenged measures does not automatically mean that Article XIX and the
Agreement on Safeguards do not apply to those measures.
1.130. The safeguards disciplines established by Article XIX of the GATT 1994 and the Agreement
on Safeguards and Article XXI of the GATT 1994 have a different place in the WTO legal system.
This is crucial for understanding the relationship between Article XXI, on the one hand, and Article
XIX together with the Agreement on Safeguards, on the other hand.
1.131. Article XIX and Article XXI have a similar function in that they allow for derogations from
general obligations under the GATT (such as Articles I, II, III or XI). They both authorize a departure
from general obligations for certain legitimate purposes: economic for Article XIX and essential
security for Article XXI. In that sense, both Article XIX and Article XXI operate as exceptions to the
general obligations under the GATT 1994.
1.132. Although they have a similar function, the nature of Article XIX and Article XXI is different.
Article XXI is an affirmative defence, which may be invoked in order to justify a measure that is
inconsistent with the obligations set out in the GATT, while Article XIX lays down a conditional right,

i.e. a right for Members to derogate from GATT concessions or obligations provided that certain
conditions and circumstances are satisfied. Unlike an affirmative defence, Article XIX lays down an
entire specific regime, i.e. disciplines that ensue from the measures being safeguard measures.
1.133. The different nature of Article XIX and Article XXI of the GATT 1994 requires that it must
first be determined whether the safeguard disciplines of Article XIX and the Agreement o n
Safeguards apply. Since Article XXI of the GATT 1994 constitutes an affirmative defence, it only
needs to be addressed at a later stage once it has been found that the measures at issue are
inconsistent with certain GATT provisions. Indeed, an affirmativ e defence implies that it can be
invoked by a respondent only in relation to another provision in order to justify measures that have
been found to be inconsistent with the obligation(s) set out in that provision.
1.134. Indeed, as observed by the Appellate Body, the examination regarding the "applicability" of
certain provisions logically precedes the assessment of a measure 's "conformity" with such
provisions. Furthermore, "an analysis of whether a measure infringes an obligation necessarily
precedes, and is di stinct from, the 'further and separate' assessment of whether such measure is
otherwise justified".
1.135. In support of its position, the United States relies on Article 11.1(c) of the Agreement on
Safeguards. According to the United States, once a Member invokes Article XXI of the GATT 1994
as a basis for its measure, it means that that measure has been sought pursuant to Article XXI and
not pursuant to Article XIX and thus, by virtue of Article 11.1(c), the Agreement on Safeguards does
not apply to that measure. This argument must be rejected.
1.136. Article 11.1(c) excludes from the scope of application of the Agreement on Safeguards all
measures that are sought, taken or maintained by a Member pursuant to provisions other than
Article XIX or the provisions of the Agr eement on Safeguards, i.e. measures other than safeguard
measures. The reference to measures which are "sought, taken or maintained" reflects the scope of
application of the Agreement on Safeguards and the type of obligations imposed by it. Indeed, the
Agreement on Safeguards sets out certain obligations that apply even before any safeguard measure
is imposed, such as those relating to the initiation or conduct of a safeguard investigation. Once the
Member initiates an investigation, it is "seeking" to apply safeguard measures.
1.137. In that sense, the word "sought" in Article 11.1(c) of the Agreement on Safeguards does not
relate to the subjective intention of the Member to impose a certain type of measure or the invocation
of a specific provision, contrary to wh at the United States argues. Rather it refers to the process
which precedes the imposition of, i.e. the steps undertaken with a view to impose, a measure. Thus,
the fact that the United States invokes Article XXI(b) with respect to the measures at issue does not
mean that these measures are excluded from the scope of the Agreement on Safeguards by virtue
of Article 11.1(c).
1.138. Furthermore, the term "pursuant to" in Article 11.1(c) should be understood as "falling within
the scope of " a given provision. The que stion of whether a measure has been sought, taken or
maintained "pursuant to" a certain provision of the GATT 1994 cannot be unilaterally decided by a
Member taking that measure but must be objectively assessed on the basis of the text, design,
structure and expected operation of the measure as a whole. Thus, the fact that the United States
has invoked Article XXI(b) with respect to the challenged measures does not in and of itself mean
that those measures have been sought or taken "pursuant to " Article XXI of the GATT 1994.
Importantly, the expression "other than" clearly indicates that measures to which the Agreement on
Safeguards does not apply are measures taken pursuant to other provisions except Article XIX of
the GATT. Accordingly, even if a measure were sought, taken or maintained pursuant to Article XIX
and another provision of the GATT, Article 11.1(c) would not apply.
1.139. If a measure presents the two constituent features of a safeguard measure, it constitutes a
"safeguard measure" and, pursuant to Article 11.1(a), it must conform with the provisions of Article
XIX of the GATT applied in accordance with the Agreement on Saf eguards. Such measure cannot
become excluded from the scope of application of the Agreement on Safeguards by virtue of Article
11.1(c). A different reading of Article 11.1(c), as put forward by the United States, would be contrary
to the very object and pu rpose of the Agreement on Safeguards expressed in the second recital of
its preamble to "re-establish multilateral control over safeguards and eliminate measures that
escape such control".

1.140. Once it has been established that safeguards disciplines apply to the measures at issue and
that such measures do not comply with those disciplines, it then needs to be determined whether
such measures can nevertheless be justified under an affirmative defence put forward by the
defendant, such as Article XXI of the GATT 1994. A preliminary question in that regard is whether
Article XXI is available as a defence for inconsistencies with Article XIX of the GATT and the
Agreement on Safeguards. Switzerland submits that the answer to that question is negative.
1.141. Although Article XXI starts with the words "[n]othing in this Agreement", it cannot be invoked
as a defence with respect to safeguard measures which are inconsistent with Article XIX. This is so
because Article XIX does not establish any general obligation in and of its elf. Rather Article XIX,
together with the Agreement on Safeguards, establishes a conditional right to apply safeguard
measures, which derogate from WTO Members ' obligations under the GATT, provided that certain
conditions and circumstances are met.
1.142. Obligations laid down in Article XIX, and which are further clarified and developed in the
Agreement on Safeguards, are "subsidiary" or "conditional" since they arise only with respect to
WTO Members that impose safeguard measures. It follows that there are no g eneral obligations
under Article XIX of the GATT the non-compliance with which could be justified under Article XXI.
1.143. Furthermore, without any specific reference in the text of the Agreement on Safeguards to
the security exceptions under Article XXI of the GATT, there is no basis to argue that these
exceptions should also apply with respect to the claims of violation of the Agreement on Safeguards.
1.144. Indeed, where the drafters wished to make Article XXI defence available in the context of
other covered agreeme nt they have explicitly said so. This is the case of Article 1.10 of the
Agreement on Import Licensing Procedures, Article 3 of the TRIMs Agreement or Article 23.7 of the
Trade Facilitation Agreement. Other covered agreements, such as the TRIPS Agreement (Article 73)
or the GATS (Article XIV bis) contain their own security exceptions clauses which resemble Article
XXI of the GATT 1994. No such provision can be found in the Agreement on Safeguards.
1.145. Contrary to what the United States argues, none of the general references to the GATT 1994,
or Article XIX, included in the Agreement on Safeguards can be considered as establishing a link
between that agreement and Article XXI. Indeed, the case law suggests that in order to make a
defence under the GATT 1994 avai lable to another covered agreement the language incorporating
that defence must be sufficiently specific.
1.146. Finally, given that the Agreement on Safeguards applies to safeguards measures understood
as "those measures provided for in Article XIX of the GATT ", logically, if Article XXI is not available
as a defence for measures inconsistent with Article XIX, Article XXI cannot be available as a defence
for measures inconsistent with the Agreement on Safeguards and vice versa.

ANNEX B-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES OF AMERICA
1.1. At issue in this dispute is the sovereign right of a state to take action to protect its essential
security in the manner it considers necessary. WTO Members did not relinquish this inherent right
in joining the WTO. To the contrary, this right is reflected in Article XXI(b) of the GATT 1994, and
WTO Members have not agreed to subject the exercise of this right to legal review.
1.2. Section 232 of the Trade Expansion Act of 1962 (Section 232) allows the United States to
adjust imports of an article based on a finding that such imports threaten to impair U.S. national
security. On April 19 and 26, 2017, the United States initiated investigations under Section 232 into
imports of steel and aluminum, respectively. In connection with these investigations, United States
solicited written co mments from interested parties and held public hearings. The United States
summarized its findings from these investigations in written reports, and released these reports to
the public. On March 8, 2018, the United States acted pursuant to Section 232 and imposed tariffs
on certain steel and aluminum imports, effective beginning on March 23, 2018. The United States
also established a process to permit product-specific exclusions from the Section 232 tariffs, based
on, among other factors, the national security implications of those imports.
A THE TEXT OF GATT 1994 ARTICLE XXI(B) IN ITS CONTEXT, AND IN THE LIGHT OF THE
AGREEMENT'S OBJECT AND PURPOSE, ESTABLISHES THAT THE EXCEPTION IS SELF-JUDGING
1.3. The text of GATT 1994 Article XXI(b), in its context and in th e light of the agreement's object
and purpose, establishes that the exception is self -judging. As this text provides "[n]othing" in the
GATT 1994 shall be construed to prevent a WTO Member from taking "any action" which "it considers
necessary" for the pro tection of its essential security interests. This text establishes that (1)
"nothing" in the GATT 1994 prevents a Member from taking any action needed to protect an essential
security interest, and (2) the action necessary for the protection of its essential security interests is
that which the Member "considers necessary" for such protection.
1.4. The self -judging nature of GATT 1994 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. The ordinary meaning of "considers" is "[r]egard in a certain light or aspect; look upon as"
or "think or take to be." Under Article XXI(b), the relevant "light" or "aspect" in which to regard the
action is whether that action is necessary for the protection of the acting Member's essential security
interests. Thus, reading the clause together, the ordinary meaning of the text indicates it is the
Member ( "which it ") that must regard ( "consider[]") the action as having the aspect of being
necessary for the protection of that Member 's essential security interests. The French and Spanish
texts of Article XXI(b) confirm the self -judging nature of this provision. Specifically, use of the
subjunctive in Span ish ( "estime") and the future with an implied subjunctive mood in French
("estimera") support the view that the action taken reflects the beliefs of the WTO Member, rather
than an assertion of objective fact that could be subject to debate.
1.5. The ordinary meaning of the terms in the phrase "its essential security interests," also supports
the self -judging nature of Article XXI. The word "interest" is defined as "[t]he relation of being
involved or concerned as regards potential detriment or (esp.) advantage. " The term "security"
refers to "[t]he condition of being protected from or not exposed to danger. " The definitions of
"essential" include "[t]hat is such in the absolute or highest sense " and "[a]ffecting the essence of
anything; significant, important."
1.6. And it is "its" essential security interests – the Member's in question – that the action is taken
for the protection of. Therefore, it is the judgment of the Member that is relevant. Each WTO Member
must determine whether certain action involves "its inter ests," that is, potential detriments or
advantages from the perspective of that Member. Each WTO Member likewise must determine
whether a situation implicates its "security" interests (not being exposed to danger), and whether
the interests at stake are "essential," that is, significant or important, in the absolute or highest
sense. By their very nature, these questions are political and can only be answered by the Member
in question, based on its specific and unique circumstances, and its own perception of those

circumstances. No WTO Member or WTO panel can substitute its views for those of a Member on
such matters.
1.7. The text of subparagraphs (i) to (iii) of Article XXI(b) also supports the self -judging nature of
this provision. The first element of this text that is notable is the lack of any conjunction to separate
the three subparagraphs. The subparagraphs are not separated by the coordinating conjunction "or",
to demonstrate alternatives, or the conjunction "and", to suggest cumulative situations. Accordingly,
each subparagraph must be considered for its relation to the chapeau of Article XXI(b).
Subparagraphs (i) and (ii) of Article XXI(b) both begin with the phrase "relating to" and directly
follow the phrase "essential security interests" in the chapeau of paragraph (b). The most natural
reading of this construction is that subparagraphs (i) and (ii) modify the phrase "essential security
interests" and thus illustrate the types of "essential security interests " that Members considered
could lead to action under Article XXI(b).
1.8. Subparagraphs (i) and (ii) do not limit a Member 's essential security interests exclusively to
those interests. First, the chapeau of Article XXI(b) (as noted) reserves to the Member the judgment
of what "its interests" are, including whether they are relating to one of the enumerated interests.
Second, subparagraph (iii) reflects no explication (and therefore cannot be understood to reflect a
limitation) on a Member's essential security interests. Rather, as with subparagraphs (i) and (ii), the
essential security interests are those determined by the Member taking the action.
1.9. Subparagraph (iii) begins with temporal language: "taken in time of war or other emergency
in international relations." The phrase "taken in time of" echoes the reference to "taking any action"
in the chapeau of Article XXI (b), and it is actions that are "taken", not interests. Thus, the temporal
circumstance in subparagraph (iii) modifies the word "action," rather than the phrase "essential
security interests." Accordingly, Article XXI(b)(iii) reflects a Member's right to take action it considers
necessary for the protection of its essential security interests when that action is taken in time of
war or other emergency in international relations. Nor does the text of Article XXI(b)(iii) require that
the emergency in international relations or war directly involve the acting Member, reflecting again
that the action taken for the protection of its essential security interests is that which the Member
judges necessary.
1.10. Subparagraphs (i) to (iii) of Article XXI(b) thus reflect that Members wished to set out certain
types of "essential security interests" and a temporal circumstance that Members considered could
lead to action under Article XXI(b). A Member taking action pursuant to Article XXI(b) would consider
its action to be necessary for the protection of the interests identified in subparagraphs (i) and (ii)
or to be taken in time of war or other emergency in international relations. In this way, the
subparagraphs guide a Member 's exercise of its rights under this provision while reserving to the
Member the judgment whether particular action is necessary to protect its essential security
interests.
1.11. The context of Article XXI(b) also supports this understanding. First, the phrase "which it
considers necessary" is present in Article XXI(a) and XXI(b), but not in Article XXI(c). The selective
use of this phrase highlights that, under Article XXI(a) and XXI(b), it is the judgment of the Member
that controls. The Panel should recognize and give meaning to such deliberate use of the phrase
"which it considers" in Article XXI(b), and not reduce these words to inutility. Second, the context
provided by Article XX supports the understanding that Article XXI(b) is self -judging. Specifically,
Article XX sets out "general exceptions," and a number of subparagraphs of Article XX relate to
whether an action is "necessary" for some listed objective. For example, Article XX(a), (b), and (d),
respectively, provide exceptions for certain measures "necessary to protect public morals, "
"necessary to protect human, animal or plant life or health, " and "necessary to secure compliance
with laws or regulations which are not inconsistent with the provisions of this Agreement" (emphases
added). Unlike Article XXI(b), however, none of the Article XX subparagraphs use the phrase "which
it considers" to introduce the word "necessary." Furthermore, Article XX includes a chapeau which
subjects a measure qualifying as "necessary" to a further requirement of, essentially, non -
discrimination. Notably, such a qualification, which requires review of a Member 's action, is absent
from Article XXI.
1.12. Third, a number of provisions of the GATT 1994 and other WTO agreements refer to action
that a Member "considers" appropriate or necessary, and—as in Article XXI(b)—this language signals
that a particular judgment resides with that Member. For example, under Article 18.7 of the
Agreement on Agriculture, "[a]ny Member " may bring to the attention of the Committee on

Agriculture "any measure which it considers ought to have been notified by another Member. "
Similarly, Article III(5) of the General Agreement on Trade in Ser vices (GATS) permits "[a]ny
Member" to notify the Council for Trade in Services of any measure taken by another Member which
"it considers affects " the operation of GATS. In other provisions of the GATT 1994 or other WTO
agreements, however, certain judgments are left for determination by a panel, the Appellate Body,
or a WTO committee. Under DSU Art. 12.9, for example, "[w]hen the panel considers" that it cannot
issue its report within a certain period of time, the panel must provide certain information to the
DSB. Under Article 4(1) of the Agreement on Rules of Origin, the Committee on Rules of Origin may
request work from the Technical Committee on Rules of Origin "as it considers appropriate" for the
furtherance of the objectives of that agreement.
1.13. Fourth, by way of contrast, and further context, in at least two WTO provisions the judgment
of a Member is expressly subject to review through dispute settlement. Specifically, DSU Article 26.1
permits the institution of non -violation complaints, subject to sp ecial requirements, including that
the panel or Appellate Body agree with the judgment of the complaining party. As DSU Article 26.1
states, a non -violation complaint may be instituted, "[w]here and to the extent that such party
considers and a panel or the Appellate Body determines" that a particular measure does not conflict
with a WTO agreement, among other requirements. Thus, in this provision, Members explicitly
agreed that it is not sufficient that "[a] party considers " a non -violation s ituation to exist, and
accordingly, a non-violation complaint is subject to the additional check that "a panel or the Appellate
Body determines that " a non -violation situation is present. A similar limitation —that a "party
considers and a panel determines that"—was agreed in DSU Article 26.2 for complaints of the kind
described in GATT 1994 Article XXIII:1(c).
1.14. The context provided by DSU Articles 26.1 and 26.2 is highly instructive. No such review of a
Member's judgment is set out in Article XXI(b), which permits a Member to take action "which it [a
Member] considers necessary for the protection of its essential security interests." Accordingly, the
context of Article XXI(b) demonstrates that Members did not agree to subject a Member's essential
security judgments to review by a WTO panel.
1.15. The object and purpose of the GATT 1994 also establishes that Article XXI(b) is self-judging.
The object and purpose of the GATT 1994 is set out in the agreement 's Preamble. That Preamble
provides, among other things, that the GATT 1994 set forth "reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs and other barriers to trade." Particularly
with these references to arrangements that are "mutually advantageous" and tariff reductions that
are "substantial" (rather than complete), the contracting parties (now Members) acknowledged that
the GATT contained both obligations and exceptions, including the essential security exceptions at
Article XXI. The self-judging nature of Article XXI is further established by a subsequent agreement
between the parties regarding the interpretation of the treaty or the application of its provisions in
the context of the United States Export Measures dispute between the United States and
Czechoslovakia.
B SUPPLEMENTARY MEANS OF INTERPRETATION, INCLUDING NEGOTIATING HISTORY,
CONFIRM THE SELF-JUDGING NATURE OF GATT 1994 ARTICLE XXI(B)
1.16. While not necessary in this dispute, supplementary means of interpretation, including
negotiating history, confirms that GATT 1994 Article XXI(b) is self-judging. The drafting history of
GATT 1994 XXI(b) dates back to negotiations to establish the International Trade Organization of
the United Nations (ITO). In 1946, the United States proposed a draft charter f or the ITO, which
included the following two exceptions provisions:
Article 32 (General Exceptions to Chapter IV):
Nothing in Chapter IV of this Charter shall be construed to prevent the
adoption or enforcement by any Member of measures

(e) in time of war or other emergency in international relations, relating to
the protection of the essential security interests of a Member.

Article 49.2 (Exceptions to Provisions Relating to Intergovernmental Commodity
Agreements):
None of the foregoing provis ions of Chapter VI is to be interpreted as
applying to agreements relating to fissionable materials; to the traffic in
arms, ammunition and implements of war and to such traffic in other goods
and materials as is carried on for the purpose of supplying a m ilitary
establishment; or, in time of war or other emergency in international
relations, to the protection of the essential security interests of a Member.
1.17. The United States asserted at the time that Article 32(e) "afforded complete opportunity for
the adoption of all measures regarded as necessary for the protection of national interests" in a time
of war or a national emergency. As originally drafted, however, neither exceptions provision was
explicitly self-judging. These provisions lacked the key phrase that appears in the current text of
GATT 1994 Article XXI(b) regarding action by a Member that "it considers necessary for " the
protection of its essential security interests. In addition, the essential security exception set out in
Article 32 of the ITO draft charter was one of twelve exceptions, several of which later formed the
basis for the general exceptions at GATT 1994 Article XX.
1.18. In March 1947, the same exceptions text was proposed as both GATT Article XX and Article
37 the ITO draft charter, in Chapter V, which related to "[g]eneral commercial policy." The chapeau
of this proposed text and a number of the subparagraphs are identical to what would become
GATT 1994 Article XX. With its proviso, the chapeau contemplated panel review so that the
exceptions would not be applied to discriminate unfairly. The subparagraphs corresponding to
essential security were included in this proposed text, together with other exceptions, and thus were
subject to the proviso in the chapeau, like these other exceptions . This structure suggests that, at
that time, not all drafters may have viewed the essential security exception in subparagraph (e) as
self-judging.
1.19. In May 1947, the United States proposed removing, inter alia, subparagraph (e) from the ITO
draft charter exceptions provision quoted above. In the U.S. proposal, item (e) would be included in
a new article, to be inserted at an "appropriate" place at the end of the ITO draft charter, so that
these exceptions would apply to the whole charter. The United States also proposed that the new
article would begin by stating "[n]othing in this Charter shall be construed to prevent the adoption
or enforcement by any Member of measures," including those relating to the protection of essential
security interests. Thereafter, the United States proposed the addition of a new chapter, entitled
"Miscellaneous" at the end of the ITO draft charter, and that the proposed exceptions to the charter
as a whole be included in this new chapter. The United States also suggested additional text to this
exceptions provision, to make the self -judging nature of these except ions explicit. Under this U.S.
proposal, the draft exceptions provision stated:
Nothing in this Charter shall be construed to require any Member to furnish any
information the disclosure of which it considers contrary to its essential security
interests, or to prevent any Member from taking any action which it may consider to be
necessary to such interests:
a) Relating to fissionable materials or their source materials;
b) Relating to the traffic in arms, ammunition and implements of war and
to such traffic in other goods and materials as is carried on for the purpose
of supplying a military establishment;
c) In time of war or other emergency in international relations, relating to
the protection of its essential security interests . . . .
1.20. The text now referenced what a Member considered to be necessary, explicitly indicating that
this provision could be invoked based on a Member 's own judgment. Moreover, this reference was
included only for national security issues, including actions which a Member may consider necessary
for the protection of its essential security interests. The drafting history thus shows that a deliberate
textual distinction was drawn between the self -judging nature of exceptions pertaining to essential
security and exceptions related to other interests that, unlike the security -based exceptions

referenced above, were retained as part of the "[g]eneral commercial policy " chapter of the ITO
draft charter.
1.21. Regarding the exception's scope, at a July 1947 meeting of the ITO negotiating comm ittee,
the delegate from The Netherlands requested clarification on the meaning of a Member 's "essential
security interests," and suggested that this reference could represent "a very big loophole " in the
ITO charter. The U.S. delegate responded that the exception would not "permit anything under the
sun," but suggested that there must be some latitude for security measures. The U.S. delegate
further observed that in situations such as times of war, "no one would question the need of a
Member, or the right of a Member, to take action relating to its security interests and to determine
for itself—which I think we cannot deny—what its security interests are."
1.22. In those discussions the Chairman made a statement "in defence of the text, " and recalled
the context of the essential security exception as part of the ITO charter. As the Chairman observed,
when the ITO was in operation "the atmosphere inside the ITO will be the only efficient guarantee
against abuses of the kind" raised by The Netherlands delegate. That is, the parties would serve to
police each other's use of the essential security through a culture of self-restraint. During the same
July 1947 meeting, the Chairman asked whether the drafters agreed that actions taken pursuant to
the essential security exception "should not provide for any possibility of redress." In response, the
U.S. delegate observed that such actions "could not be challenged in the sense that it could not be
claimed that the Member was violating the Charter." The United States acknowledged, however, that
a member affected by such actions "would have the right to seek redress of some kind" under Article
35(2) of the ITO charter.
1.23. At that time, Article 35(2) provided for the possibility of consultations concerning the
application of any measure, "whether or not it conflicts with the terms of this Charter, " which had
"the effect of nullifying or impairing any object " of the ITO charter. If the parties were unable to
resolve the matter, it could be referred to the ITO, which in turn could ma ke recommendations,
including the suspension of obligations or concessions. In response to the explanation from the U.S.
delegate, including the right to seek redress for non -violation under Article 35(2), the Australian
delegate lifted a reservation on th e essential security exception at this July 1947 meeting. The
delegate from Australia stated that, as the exception was "so wide in its coverage"—particularly the
"which it may consider to be necessary " language—Australia's agreement was done with the
assurance that "a Member's rights under Article 35(2) will not be impinged upon. " This exchange
demonstrates that the drafters of the text that became GATT 1994 Article XXI(b) understood that
essential security measures could not be challenged as violating obl igations in the underlying
agreement. Nevertheless, an ITO member affected by essential security measures could claim that
its expected benefits under the charter had been nullified or impaired, as set forth at Article 35(2)
of the ITO Charter draft current in July 1947. As applied to the WTO context, this discussion indicates
essential security measures cannot be found by a panel to breach the GATT 1994 or other WTO
agreements, although Members may request that a panel review whether its benefits have been
nullified or impaired by the essential security measure and, if so, to assess the level of that
nullification or impairment.
1.24. This understanding of the relationship between essential security measures and nullification
or impairment procedures is further c onfirmed by discussions of the ITO Charter that occurred in
early 1948. For example, after "extensive discussions," a Working Party of representatives from
Australia, India, Mexico, and the United States decided to retain the draft charter 's non-violation
nullification or impairment provision. The Working Party noted that the provision "would apply to the
situation of action taken by a Member" to protect its essential security interests. The explanation of
the Working Party is worth reading in full:
Such action, for example, in the interest of national security in time of war or other
international emergency would be entirely consistent with the Charter , but might
nevertheless result in the nullification or impairment of benefits accruing to other
Members. Such other Members should, under those circumstances, have the right to
bring the matter before the Organization, not on the ground that the measure taken
was inconsistent with the Charter, but on the ground that the measure so taken
effectively nullified benefits accruing to the complaining Member.
1.25. Members of a sub -committee on the ITO Charter 's dispute settlement chapter expressed
similar views. Thereafter, the essential security exception in the ITO draft charter was revised based

on suggestions from the United Kingdom. The UK representative opined that with these revisions,
the Charter "would neither permit, nor condemn, nor pass any judgment whatever on, unilateral
economic sanctions. " After the UK 's revisions were accepted, a representative of In dia—when
discussing nullification or impairment claims as a remedy for essential security measures —
"expressed some doubt " about whether "the bona fides of an action allegedly coming within [the
essential security exception] could be questioned." In early 1948, negotiators also declined to adopt
a UK proposal that would have amended the essential security provision to state that nullification or
impairment procedures were the appropriate recourse for members affected by essential security
measures by other members. As the United States noted at the time, such a reference to nullification
or impairment in the essential security provision was "unnecessary" in light of the existing text.
1.26. In its analysis of the negotiating history of Article XXI(b), the Russia – Traffic in Transit panel
referred at length to internal documents of the U.S. delegation to the GATT negotiations. Specifically,
in addition to considering published documents assoc iated with the negotiating history of Article
XXI(b), that panel considered a study that discusses internal documents of the U.S. delegation. In
particular, the panel report recounts at some length this study 's discussion of an internal U.S.
delegation mee ting of July 4, 1947. The panel used these documents as negotiating history to
confirmed the panel's interpretation that it had the authority to review a Member's invocation of its
essential security interests. The Panel in Russia – Traffic in Transit erred in relying on such material
because it is not "negotiating history" within the meaning of the Vienna Convention. It is concerning
that the panel would commit such an elementary error in interpretive approach. Even putting aside
this interpretative error, the panel also misunderstood and mischaracterized the U.S. discussions to
which it referred. These internal U.S. deliberations —when considered as a whole and in context —
further confirm that Article XXI(b) is self-judging.
1.27. The self-judging nature of Article XXI(b) is also supported by views repeatedly expressed by
GATT contracting parties (now Members) in connection with prior invocations of their essential
security interests.
C THE RUSSIA – TRAFFIC IN TRANSIT PANEL ERRED IN DECIDING IT HAD AUTHORITY
TO REVIEW A RESPONDING PARTY'S INVOCATION OF ARTICLE XXI.
1.28. The panel in Russia – Traffic in Transit erred when it decided that it had authority to review
multiple aspects of a responding party 's invocation of Article XXI. That panel 's interpretation of
Article XXI is not consistent with the customary rules of interpretation set forth in the Vienna
Convention. In addition to being inconsistent with the ordinary meaning of the terms of Article XXI,
the panel failed to interpret that provision as a whole. In fact, the panel appears to have reached its
conclusion regarding the reviewability of Article XXI a mere four paragraphs after beginning its
analysis – based not on "the mere meaning of the words and the grammatical construction of the
provision," but on what it termed the "logical structure of the provision."
1.29. Furthermore, in its examination of the negotiating history of the treaty, the Russia – Traffic
in Transit panel misconstrued certain statements by negotiating parties and relied on materials not
properly considered part of the negotiating history. These errors reveal the panel's analysis as deeply
flawed and suggest a results -driven approach not in line with the responsibility bestowed on the
panelists by WTO Members through the DSU.

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

ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA
1. This executive summary integrates the Oral Statement and Responses to the Panel's
Questions by China in these disputes.
I. LEGAL CHARACTERIZATION OF MEASURES AS SAFEGUARD MEASURE
2. China believes the Appellate Body in Indonesia – Iron or Steel Products has provided useful
analysis as to what meaure constitutes Safeguard measure.
3. The Appellate Body identified two constituent elements of a safeguard measure, i.e. (1) the
suspension, in whole or in part, of a GATT obligation or the withdrawal or modification of a
GATT concession; and (2) that the suspension, withdrawal, or modification in question is
designed to prevent or remedy serious injury to the Member's domestic industry caused or
threatened by increased imports of the subject product.
4. In China's view, the purpose of a safeguard measure is to prevent or remedy serious injury
to a domestic industry caused or threatened by increased imports, through the mechanism
of suspending, withdrawing, or modifying a GATT obligation or concession. That is what a
safeguard measure "is", and a measure which meets the two constituent elements would be
a safeguard measure . The remaining elements provided under Article XIX(1)(a) are legal
requirements for the imposition of a safeguard measure rather than constituent elements of
such a measure.
5. Furthermore, China believes that the characterization of a measure as safeguard measure
is not a question of subjective intent, but independant and objective assessment of the
features of the measure. In making this "independent and objective assessment", a panel
must "identify all the aspects of the measure that may have a bearing on its lega l
characterization, recognize which of those aspects are the most central to that measure,
and, thereby, properly determine the disciplines to which the measure is subject." The
assessment of whether a measure is a safeguard measure is therefore an object ive
assessment based on the relevant characteristics of the measure, not the importing
Member's subjective intent.
6. This conclusion is unaffected by the statement in Article XIX:1(a) that a Member "shall be
free" to suspend an obligation in whole or in p art or to modify or withdraw a concession,
provided that the conditions for the imposition of a safeguard measure are satisfied. The
phrase "shall be free" does nothing more than confer the right to impose a safeguard
measure when the conditions for the imposition of such a measure are satisfied.
II. ISSUES CONERNING INTERPRETATION OF ARTICLE XXI(b)
i. Standard of Review
7. China holds the view that, nothing in the DSU or elsewhere in the covered agreements allows
a panel to perform its role any differently in disputes in which the responding Member
invokes Article XXI(b) of the GATT 1994.
8. Article XXI(b) is an affirmative defense which, like other affirmative defenses, must be
interpreted and applied to the facts of the case to determine whether it provides justification
for any identified inconsistency. There are no special or additional rules or procedures that
apply to a dispute in which the responding Member has invoked Article XXI(b), and the
panel's function to undertake "an objective assessment o f the facts of the case and the
applicability of and conformity with the relevant covered agreements" is the same as in any
other dispute.

9. Furthermore, the subparagraphs of Article XXI(b) represent an enumerated and exhaustive
list of the circumstances under which a Member may seek to justify a particular type of
action that is otherwise inconsistent with the GATT 1994. For the subparagraphs to be
exhaustive and have effective meaning, they must be objectively reviewable. Otherwise,
Article XXI(b) would have the same meaning and effect as if the subparagraphs did not
exist, and the circumstances described in the three subparagraphs would no longer constrain
the circumstances in which a Member could invoke Article XXI(b).
ii. Interpretation of Article XXI(b)
10. Within Article XXI (b), the phrase "which it considers" qualifies the phrase "necessary for
the protection of its essential security interests". Thus, what a Member is permitted to
determine, in its own judgment, is whether a particular action of a type set forth in
subparagraphs (i) through (iii) is "necessary for the protection of its essential security
interests". For an action in question to be justified under Article XXI(b), it must objectively
fall within one of the three enumerated subparagraphs. Provided that the action in question
is objectively within the scope of one (or more) of the enumerated subparagraphs, it is up
to the invoking Member to determine whether the action in question is necessary for the
protection of its esse ntial security interests. The United States stands alone in asserting
that the entirety of Article XXI(b), including its subparagraphs, is self-judging. This is clearly
different from what was perceived from other parties and third parties.
11. The subjective element of the chapeau encompasses both the "necessity" of the action and
the determination of the invoking Member's "essential security interests". The chapeau
refers not to "necessity" in the abstract, but to the necessity of a particular action "for the
protection of its essential security interests". The elements of this determination are not
divisible – a Member's determination of whether a particular action is "necessary" includes
the determination of whether that action is "for the protection of" what the Member considers
to be "its essential security interests".
12. The phrase "any action which it considers necessary for the protection of its essential
security interests" has two operative halves. The phrase "any action" is qualified by the
three subparagraphs. Thus, any action for which justification is sought under Article XXI(b)
must be one " relating to fissionable materials", " relating to the traffic in arms …", or one
"taken in time of war or other emergency in international relations". Provided that the action
in question is of one or more of those types, the Member may determine, in its own
judgment, whether that action is "necessary for the protection of its essential security
interests".
13. China does not consider that the present disputes present a circumstance in which there is
a potential conflict among the Spanish, French and English texts following the application of
Articles 31 and 32 of the Vienna Convention. Rather, the minor differences in terminology,
structure, and punctuation discussed in response to the preceding questions all point to the
same conclusion: that the individual subparagraphs of Article XXI(b) are objectively
reviewable in dispute settlement and do not form part of the self -judging element of that
provision.
14. The individual subparagraphs of Article XXI(b) describe, exhaustively, the specific
circumstances in which a Member may seek to justify an inconsistent measure under this
provision. They serve the same function as the subparagraphs of Article XX, i.e. to delimit
the scope of application of the exception.
15. The exhaustive nature of the three subparagraphs means there are no other circumstances
in which a Member may invoke Article XXI(b) to justify a GATT -inconsistent measure. If
those subparagraphs were considered "self-judging", there would be no constraint upon the
circumstances in which a Member could justify a GATT -inconsistent action. Such an
interpretation would defeat and run contrary to the exhaustive nature of the three
subparagraphs.
16. In addition, if the self-judging element of Article XXI(b) were interpreted to encompass the
three subparagraphs of this provision, those subparagraphs would be rendered inutile in

violation of the principle of effective interpretation. Had this been the intention of the
drafters, the three subparagraphs could have been omitted entirely and Article XXI(b) would
have the same meaning and effect.
17. It is well established that an object and purpose of the GATT 1994 is to "promote the security
and predictability of the reciprocal and mutually advantageous arrangements and the
substantial reduction of tariffs and other barriers to trade". An interpretation of
Article XXI(b) under which the applicability of its subparagraphs is to be determined by the
invoking Member in its own judgment would be incompatible with the object and purpose of
the GATT 1994, because a Member could, at any time and for any reason, excuse itself from
compliance with its WTO obligations merely by invoking Article XXI(b). A consideration of
the object and purpose of the GATT 1994 plainly supports the conclusion that the
subparagraphs of Article XXI(b) are objectively reviewable by a panel. Otherwise, the
security and predictability of the multilateral trading system would be obviously undermined.
18. Whatever the scope of the self-judging element in Article XXI(b), a Member's invocation of
Article XXI(b) is, in all events, subject to the requirement of Article 26 of the Vienna
Convention that a treaty must be performed in good faith.
19. The principle of good faith applies to the performance of any treaty obligation, including
elements of a treaty that are committed to a party's discretion. It does not deprive a
Member invoking Article XXI(b) of its right to determine its essential security interests in its
own judgement and take measures it considers necessary for the protection of those
interests. However, as a general matter, the pervasive nature of the obligation to act in
good faith requires that even in relation to those elements of Article XXI(b) that are
committed to a Member's discretion by virtue of the phrase "which it considers", the invoking
Member must nevertheless invoke Article XXI(b) in good faith. This may require some
explanation by the invoking Member of why it considered a particu lar element of
Article XXI(b) to apply.
III. RELATIONSHIP BETWEEN ARTICLES XXI AND XIX OF THE GATT 1994 AND
THE AGREEMENT ON SAFEGUARDS
20. In China's view, the absence of an explicit cross-reference in the Agreement on Safeguards
to Article XXI of the GA TT 1994 is not determinative of whether Article XXI is available to
justify measures that are inconsistent with the Agreement on Safeguards. It is, however, a
pertinent interpretive consideration, and one that weighs against the conclusion that
Article XXI is available in this circumstance.
21. The Appellate Body has stated that the relationship between provisions contained in two
different agreements, including the applicability of a GATT exception to another agreement,
"must be ascertained through scrutiny of the provisions concerned, read in the light of their
context and object and purpose, with due account being taken of the overall architecture of
the WTO system as a single package of rights and obligations, and any specific provisions
that govern or shed light on the relationship between the provisions of different
instruments". Within the framework articulated by the Appellate Body, the presence or
absence of an express textual cross -reference is not dispositive. The only circumstance in
which a GATT exception was found to be available notwithstanding the absence of an explicit
textual cross-reference is where the provision at issue strongly implied the availability of the
GATT exceptions.
22. The fact that the Agreement on Safeguards is an elaborat ion upon Article XIX of the GATT
1994 does not mean that Article XXI applies to the Agreement on Safeguards. This is true
in respect of both those provisions of the Agreement on Safeguards that could be said to
replicate provisions of Article XIX and those provisions of the Agreement on Safeguards that
have no counterpart in Article XIX.
23. With has been said, China believes that nothing in the Agreement on Safeguards provides
any indication that the exceptions provisions of the GATT 1994, including Arti cle XXI, are
available as potential justifications for measures that are inconsistent with that agreement.

ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION
1 INTRODUCTION
1. In this dispute, the complainants have argued that the steel and aluminium measures are
safeguards, inconsistent with the Agreement on Safeguards; that they are also inconsistent
with the GATT 1994; and that they are not justified by Article XXI of the GATT 1994, even
if the US chose to make out an Article XXI defence, and even if that provision applied.
2. In response, the US has said one thing only: Article XXI is "self-judging". In other words, as
soon as the US "invokes" any part of Article XXI or Article XXI as a whole, the Panel is
allowed to do no more than record that the "invocation" took place.
3. That assertion is baseless as a matter of law. It is also unacceptable from a systemic point
of view. It cannot be that Members are able to escape their WTO obligations through mere
unilateral "invocations". Going down that road would undermine everything that the dispute
settlement system has achieved and reduce WTO law to inutility.
4. It is important to note the following: the US has not taken issue with a single fact or piece
of evidence put forward by the complainants. It has not even tried to rebut the claim that
the steel and aluminium measures are safeguards; any of the claims under the Agreement
on Safeguards or the GATT 1994. Strikingly, for all its reliance on Article XXI, the US has
not even raised an Article XXI defence. It has not said which "action" supposedly falls within
Article XXI(b), whether or why it "considers it necessary", what it is "for", which "security
interest" is at issue, whether and why it is "essential" , which of the three subparagraphs (if
any) is at issue or why.
5. For these reasons and others, the EU considers that it should not be difficult for the Panel
to find that the measures at issue are WTO-inconsistent.
2 THE MEASURES AT ISSUE FALL WITHIN THE SCOPE OF THE AGREEMENT ON SAFEGUARDS, AND ARE
INCONSISTENT WITH CERTAIN PROVISIONS OF THAT AGREEMENT
2.1 WHETHER THE AGREEMENT ON SAFEGUARDS APPLIES TO A MEASURE IS AN OBJECTIVE QUESTION TO
BE DECIDED BY THE PANEL
6. The EU recalls that, according to settled case-law, and as recently confirmed by the Appellate
Body in the specific context of the Agreement on Safeguards, whether or not a measure is
subject to the disciplines of the Agreement on Safeguards is an objective question. Contrary
to what the US asserts in the Additional Duties cases, it i s not a question to be decided
unilaterally by the Member imposing the safeguard measure.
7. A reason why the characterisation of a measure as a safeguard must be an objective
question is that Article XIX and the rules of the Agreement on Safeguards include important
and fundamental rights of other WTO Members, notably the right to suspend equivalent
GATT obligations. It cannot be that a WTO Member can deprive other WTO Members of these
rights simply by choosing not to notify its measure as a safeguard meas ure or by not
"invoking" Article XIX. The fulfilment of the requirements in Article XIX:2 of the GATT 1994
and Article 12 of the Agreement on Safeguards is a question of consistency, not of the
applicability of the Agreement on Safeguards.
8. In making that objective assessment of whether a measure is a safeguard, the Panel must
engage in a case -specific assessment, having regard to all of the relevant facts. In this
respect, and again contrary to what the US asserts in the Additional Duties case, the
domestic procedures pursuant to which a measure has been adopted are not determinative,
and neither are the WTO procedures that have been followed, or not followed, by the
adopting Member.

9. Indeed, the Appellate Body has previously held that the characterisation of a measure under
a Member's municipal law is not dispositive of the question of whether or not that measure
is governed by the provisions of a particular agreement.
10. What are, then, the true "constituent features" of a safeguard?
11. In the context of Article 1 of the Agreement on Safeguards, in order to be a safeguard
measure, a measure must have two constituent features. First, it must suspend, in whole
or in part, a GATT obligation or withdraw or modify a GATT concession. Second, th e
suspension, withdrawal, or modification in question must be designed to prevent or remedy
serious injury to the Member's domestic industry caused or threatened by increased imports
of the relevant products. The constituent features of a safeguard measure are distinct from
and not to be conflated with the conditions that must be met in order for the right to adopt,
apply and maintain a safeguard measure to be exercised.
12. If the measures have "a specific objective" of preventing or remedying serious injury to the
Member's domestic industry, they are subject to the disciplines of the Agreement on
Safeguards.
13. In conducting its assessment, the Panel must have regard to the measure "as a whole". The
US measures, with respect to steel and aluminium products, should be seen as the tariff and
non-tariff treatment provided for, without qualification (that is, with respect to all WTO
Members, as a whole).
2.2 THE AGREEMENT ON SAFEGUARDS APPLIES TO THE MEASURES AT ISSUE
14. The only reasonable outcome of an objective assessment is to conclude that the US
measures are safeguards.
15. The facts speak for themselves: even on their face, the central objective, and at the very
least "a specific objective " of the measures is protecting domestic steel and aluminium
industry writ large from competition with imports, regardless of any alleged national security
implications.
16. Applying the legal standard formulated by the Appellate Body, it is first of all clear that the
US measures suspend at least on e GATT obligation, in whole or in part, or withdraw or
modify at least one GATT concession.
17. Indeed, prior to the Section 232 measures the US customs duties on the steel and aluminium
products at issue were bound, as well as applied at the level of 0%. However, the US
measures provide for a customs duty rate of 25% ad valorem for the relevant steel products
and 10% ad valorem for the relevant aluminium products.
18. Thus, the US measures suspend at least one GATT obligation or withdraw or modify at least
one GATT concession, per tariff line in question, in a manner that is inconsistent with Article
II:1(b) of the GATT 1994.
19. According to the Presidential Proclamations, the US measures are designed to prevent or
remedy a decline in the respective domestic industries caused by imports, and to provide a
"relief" to those industries from competition with imports.
20. Indeed, the Steel Report, the Aluminium Report and the Proclamations point to several
elements relevant to an injury analysis. The steel an d aluminium import adjustments
explicitly purport to assess a number of injury factors that are typically associated with a
serious injury finding under Article 4.2(a) of the Agreement on Safeguards (the rate and
amount of the increase in imports, the shar e of the domestic market taken by increased
imports (import penetration), changes in the level of domestic sales, production and
productivity, capacity utilization, profits and losses, and employment).
21. Thus, consistent with the legal standard identified by the Appellate Body in Indonesia – Iron
or Steel Products , the US measures have a specific objective of preventing or remedying
serious injury to the US domestic steel and aluminium industries caused or threatened by
increased imports of the relevant products.
22. An analysis of the "design, structure, and expected operation " of the steel and aluminium
measures supports the conclusion that they are safeguard measures. The measures are
designed, and expected to operate, such as to achieve a certain domestic capacity utilisation
for all domestic producers of steel and aluminium, whether their products are linked to

security needs or not. The structure of the measures also shows that their overwhelming
concern is simply whether imports harm or threaten to harm "US producers writ large", with
regard essentially to their "industrial and commercial sales ". Any discussion of defence -
related needs is brief, marginal, and would actually argue against the imposition of the
measures.
23. Furthermore, there are sever al characteristics of the US measures that confirm that they
are safeguards measures. While these aspects provide further support for the conclusion
that the US measures are safeguards, it is not legally necessary to go beyond the two
required "constituent features".
2.3 THE MEASURES AT ISSUE ARE INCONSISTENT WITH SEVERAL PROVISIONS OF THE AGREEMENT ON
SAFEGUARDS
24. The EU agrees that the steel and aluminium measures at issue are inconsistent with several
provisions of the Agreement on Safeguards. In particular:
• Article 2.1 (notably, because the US acted inconsistently with the provisions of Articles
4.1 and 4.2);
• Article 2.2 (because the US did not apply the safeguard measures to the products at
issue irrespective of their source);
• Articles 4.1 and 4.2 (because the USDOC failed to properly demonstrate (i) an increase
in imports of the steel and aluminium products at issue, (ii) the existence of serious
injury (or threat thereof) to the US domestic steel and aluminium industries and (iii) a
causal lin k between increased imports and serious injury (or threat thereof) with
respect to the steel and the aluminium industries);
• Article 5.1 (because the US has failed to apply its safeguard measures only to the
extent necessary to prevent or remedy serious injury and to facilitate adjustment);
• Article 7.1 (because the safeguard measures make no provision for their application
only for such period of time as may be necessary to prevent or remedy serious injury
and to facilitate adjustment, and without limi tation to four years or any other period
of time);
• Article 7.4 (because the safeguard measures fail to make provision for the progressive
liberalisation at regular intervals during the period of their application, the expected
duration of which is over one year);
• Article 11.1(a) (because the safeguard m easures do not conform with the provisions
of Article XIX of the GATT 1994 applied in accordance with the Agreement on
Safeguards);
• Article 12.1 (because the US failed to make the notifications listed in Article 12.1 of
the Agreement on Safeguards);
• Article 12.2 (because the US failed to provide the Committee on Safeguards with all
pertinent information);
• Article 12.3 (because the US failed to provide adequate opportunity for prior
consultations with Members having a substantial interest as exporte rs of the product
concerned when proposing to apply or extend the safeguard measures).
2.4 ARTICLE XXI IS NOT A DEFENCE FOR CLAIMS UNDER THE AGREEMENT ON SAFEGUARDS
25. When another covered agreement specifically cross -references Article XXI of GATT 1994
and incorporates these security exceptions by reference, then the Article XXI exceptions
will also apply to that other agreement. The Agreement on Safeguards does not contain a
similar provision, which would lead to the incorporation by reference of the se curity
exceptions of the GATT 1994. Thus, the GATT 1994 security exceptions are not available
to justify breaches of the Agreement on Safeguards.
26. To confirm such a conclusion it is useful to follow a standard "analytical approach"
developed by the Appellate Body, which entails an agreement-by-agreement analysis that

starts with the text of the covered agreement in question, while keeping in mind that the
lack of an express textual reference to a particular enumerated provision is not dispositive
in and of itself. Cases such as China – Publications, China - Raw Materials, China- Rare
Earths and Thailand — Cigarettes (Philippines) provide useful guidance in this respect.
27. It is up to the US whether or not it wishes to invoke Article XXI of the GATT 1994 at all
and, should it wish to do so, to develop arguments taking into account the guidance
provided by the Appellate Body in previous cases.
28. Indeed, the burden under Article XXI lies on the party raising the defence, which would in
this case be the US. The same is true of the burden of showing why Article XXI applies in
the context of the Agreement on Safeguards. The general point that there are textual links
between the two agreements does nothing to specifically establish that Article XXI is
available as a defence for inconsistencies with the Agreement on Safeguards.
3 THE MEASURES AT ISSUE ARE INCONSISTENT WITH CERTAIN PROVISIONS OF THE GATT 1994
29. The EU also agrees that the steel and aluminium measures at issue are inconsistent with
several provisions of the GATT 1994.
30. First, they are inconsistent with Articles II:1(b) and II:1(a), because they impose duties
in excess of bound rates. The bound duties provided in the US' Schedule for the steel and
aluminium products at issue are 0%, while t he duties imposed through the Presidential
Proclamations are 25% ad valorem for steel products and 10% ad valorem for aluminium
products.
31. Second, the import adjustments at issue are inconsistent with Article I:1 of the GATT 1994.
The imposition of addi tional customs duties of 25% on steel products and 10% on
aluminium products creates more favourable competitive opportunities on the US market
for like products of certain origins, namely for products from countries that were exempted
from the additional duties on steel and aluminium and have chosen instead a quota regime
(exemptions have been agreed with Argentina, Australia, Brazil, and Korea).
32. Third, the administration of the product exclusions and the country exemptions by the US
was not uniform, i mpartial or reasonable. Thus, it can be established that the US acted
inconsistently with Article X:3(a) of the GATT 1994).
4 ARTICLE XXI IS NOT "SELF-JUDGING"
33. The US' view that that Article XXI is "self-judging" has been convincingly rejected by the
Panel Report in Russia — Traffic in Transit. It is wrong in light of the text, context, object
and purpose, and indeed useful effect of the GATT 1994. It is not supported by any of the
materials referred to in Articles 31 and 32 of the VCLT, including supplementary means of
interpretation.
34. In addition, while certain GATT Contracting Parties have expressed the view that Article
XXI(b) is "self-judging", several others have repeatedly expressed diametrically opposed
positions. Thus, the enquiry into the GATT 1947 palaeontology does not support the US
position.
35. The EU recalls, first, that Article XXI of the GATT 1994 is an affirmative defence. But it
does not provide for an exception to the rules on jurisdiction laid down in the DSU or to
the special rules on consultations and dispute settlement contained in Articles XXII and
XXIII of GATT 1994. The DSU creates compulsory jurisdiction, and it contains no security
exception.
36. Second, interpreting Article XXI as a "non -justiciable" provision in thi s dispute would be
inconsistent with the terms of reference of the Panel, which follow Article 7.1 of the DSU.
It would also be inconsistent with Article 7.2 of the DSU, which specifies that "[p]anels
shall address the relevant provisions in any covered agreement or agreements cited by the
parties to the dispute".
37. Thus, the present disputes differs from the case under the GATT 1947 opposing the US and
Nicaragua, where the terms of reference explicitly precluded that panel from examining or
judging the validity or motivation for the invocation of Article XXI(b) by the US.

38. Third, interpreting Article XXI as a "non-justiciable" provision would make it impossible for
the Panel to "make an objective assessment of the matter before it", as required by Article
11 of the DSU, as the "matter" before the Panel must also include any defence under Article
XXI raised by the US.
39. Fourth, interpreting Article XXI as a "non-justiciable" provision would undermine one of the
fundamental objectives of the DSU, as exp ressed in Article 3.2 of the DSU: security and
predictability.
40. Fifth, Article 23 of the DSU prohibits Members from making a determination to the effect
that a violation has occurred, except through recourse to dispute settlement in accordance
with the DSU. If Article XXI was "non-justiciable", a WTO Member, rather than the WTO
adjudicating bodies, would be deciding unilaterally the outcome of a dispute.
41. Finally, by way of illustration, the EU would like to point out that there are fundamental
differences in the way that security exceptions are drafted in the GATT, on the one hand,
and in other international agreements, on the other hand. For instance, an express text
that comes very close to the idea of "non -justiciability" can be found in the KORUS FTA.
There is no such text agreed by the WTO Membership in any of the covered agreements.
42. Thus, the invocation of Article XXI by a defending party does not have the effect of
excluding the jurisdiction of a panel.
43. The EU fails to understand how Article XXI(a) can exempt the US from meeting its burden
of proof under Article XXI(b). Like Article XXI(b), Article XXI(a) is also a justiciable
provision. Any discretion accorded under it is not unlimited.
44. The EU acknowledges that information relating to essential security interests is of a highly
sensitive nature, but the respondent is expected at a minimum to explain in sufficient detail
why such information cannot be shared with the Panel. There is nothing that would prevent
a panel, if neces sary, from adopting appropriate procedures to deal with sensitive
information in cases involving the invocation of Article XXI. At any rate, even if the US was
justified in not providing certain information pursuant to Article XXI(a), that would not
discharge the US from its burden of proof in relation to Article XXI(b).
45. Regarding the interpretation of Article XXI, in the EU's view, the phrase "which it considers"
refers only to the necessity test and not to any other provisions. Furthermore, t he
subparagraphs to Article XXI(b) are exhaustive of the types of circumstances covered by
the provision, and cannot be considered cumulative in nature. A ll those distinct
circumstances are objective, and susceptible to a panel's assessment. Moreover, the terms
"other emergency in international relations" do not extend to an "emergency" in
commercial or trade relations.
46. Concerning the negotiating history raised by the US, even under the Havana Charter, the
correct position would have been that the predecessor to Article XXI is "justiciable", and
not self-judging. Even under the Havana Charter, all issues arising out of the Charter were
intended to be subject to the dispute settlement procedures provided therein, whether
involving the ITO itself (Articles 93-95 of the Havana Charter), or the ICJ (Article 96 of the
Havana Charter). The evolution towards the WTO covered agreements, and notably the
provisions of the DSU, further confirms that position.
47. Furthermore, the 1949 GATT Council decision cited by the US c annot be considered as a
subsequent agreement on the interpretation even of the GATT 1947, or in any way binding
to all the contracting parties to the GATT 1947. Still less could it be considered as binding
under the GATT 1994. In any event, it also supports the complainants' position rather than
that of the US.
5 CONCLUSIONS
48. What the US is advocating is, in fact, the end of a rules—based multilateral trading system.
While the EU acknowledges the margin of discretion that WTO Members enjoy under the
security exceptions, that discretion is not unfettered, but subject to certain objective
elements, which can and should be subject to review by a panel
49. The EU hopes that its contribution in the present case will be helpful to the Panel in
objectively asse ssing the matter before it and in developing the respective legal
interpretations of the relevant provisions of the Agreement on Safeguards and of the
GATT 1994.

ANNEX C-3
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF HONG KONG, CHINA
I. INTRODUCTION
1. In DS544, DS547, DS548, DS552, DS554, DS556, and DS564 ("the parallel disputes"), the
complainants challenge the consistency of the measures imposed by the United States ("U.S.") on
steel and aluminium products. Specifically, the complainants have challenged the U.S. measures
under several of the core p rovisions of the GATT 1994, including Articles II:1 and I:1. The United
States has sought to defend its measures pursuant to Article XXI(b) of the GATT 1994.
2. Hong Kong, China ("HKC") has participated in the parallel disputes because of its systemic
interest in the correct interpretation and application of the provisions of the WTO -covered
agreements at issue in these disputes and its substantial interest in the outcome of the parallel
disputes.1
3. For the reasons set out in Hong Kong, China's written submission, oral statement, and
responses to questions from the Panel to the third parties, Hong Kong, China respectfully submits
that in its view, the complaints have established a prima facie case that the U.S. measures are
inconsistent with the relevant provisions of the Agreement on Safeguards and the GATT 1994. Hong
Kong, China further respectfully submits that the United States has failed to demonstrate that the
U.S. measures are justified under Article XXI(b) of the GATT 1994.
4. Throughout these proceedings, Hong Kong, China has focused on the correct legal
interpretation of Article XXI(b) of the GATT 1994 in light of the critical systemic implications of the
U.S. proposed interpretation of this provision as entirely self-judging.
II. THE COMPLAINANTS' CLAIMS UNDER THE AGREEMENT ON SAFEGUARDS AND THE GATT 1994
5. As detailed in Hong Kong, China's written submission, Hong Kong, China considers that the
complainants have each demonstrated that when evaluated objectively and in a manner consistent
with the Appellate Body's statements in Indonesia – Iron or Steel Products, the U.S. measures are
safeguard measures because (1) the measures suspend at least one GATT obligation, in whole or in
part, or withdraw or modify a GATT concession, and (2) it is evi dent on the face of the measures
and in their design, structure, and operation that the specific objective of such measures is to prevent
or remedy serious injury to the U.S. steel and aluminium industries. 2 In Hong Kong, China's view,
each of the complainants has also demonstrated that the U.S. measures are inconsistent with
numerous provisions of the Agreement on Safeguards.3
III. THE APPLICABILITY OF ARTICLE XXI OF THE GATT 1994 TO THE AGREEMENT ON SAFEGUARDS
6. In its answers to questions from the Panel to the third parties, Hong Kong, China explained
its view that Article XXI of the GATT 1994 is inapplicable to the Agreement on Safeguards. 4 Hong
Kong, China considers the lack of an explicit reference to Article XXI or any other GATT exception in
the Agreement on Safeguards, in particular, to be critical evidence that Article XXI is not available
to justify violations of the Agreement on Safeguards. In Hong Kong, China's view, the general
references in the Agreement on Safeguards to the GATT 1994 do not provide a sufficient legal basis
to apply Article XXI to the Agreement on Safeguards. The Agreement on Safeguards strikes a
balance between preserving the right of Members to take emergency action on im ports and
disciplining the use of safeguard measures. Consequently, allowing recourse to Article XXI of the
GATT 1994 is both legally unjustifiable and potentially disruptive of this inherent balance.

1 See Hong Kong, China's third-party submission, para. 1; third-party statement, paras. 2 and 3.
2 See Hong Kong, China's third-party submission, paras. 5-8.
3 See Hong Kong, China's third-party submission, para. 9.
4 See Hong Kong, China's response to Panel questions Nos. 38(a), 38(c), 38(d), and 39. See also
Hong Kong, China's third-party statement, paras. 10-12.

IV. ARTICLE XXI(B) OF THE GATT 1994
7. The United Stat es has invoked Article XXI(b) of the GATT 1994 in respect of all of the
complainants' claims. Therefore, for the reasons detailed in Hong Kong, China's answers to
questions from the Panel to the third parties, the Panel has jurisdiction to examine and int erpret
Article XXI(b).5 In particular, pursuant to Articles 7.2 and 11 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes ("DSU"), the Panel is required to address
Article XXI(b) and conduct an objective assessment of wheth er Article XXI(b) applies to the U.S.
measures.
8. Furthermore, since Article XXI(b) is an affirmative defence, the Panel should first evaluate
whether each complainant has established a prima facie case that the U.S. measures violate certain
provisions of the Agreement on Safeguards and the GATT 1994 and whether the United States has
rebutted those claims, before turning to the interpretation and application of Article XXI(b) of the
GATT 1994.6
9. In regard to the correct legal interpretation of Article XXI(b), it is Hong Kong, China's view
that when analysed in accordance with Article 3.2 of the DSU and the general customary rules of
interpretation codified in Article 31 of the Vienna Convention on the Law of Treaties ("Vienna
Convention"), it is clear that this provision preserves the right of Members to take actions necessary
for the protection of their essential security interests, but it is not entirely self-judging.7
10. Pursuant to Article 31 of the Vienna Convention, the terms of Article XXI(b) must be
interpreted in good faith, in accordance with their ordinary meaning in their context, and in the light
of the object and purpose of the GATT 1994. The language "which it considers" makes clear that
Article XXI(b) contemplates a certain level of unilateral determination by the invoking Member. The
placement of the language of "which it considers" in the chapeau indicates that it is up to the invoking
Member to determine, in good faith, whether a measure is necessary for the protection of its
essential security interests.8
11. Pursuant to the principle of effective treaty interpretation, a treaty interpreter may not "'adopt
a reading that would result in reducing whole c lauses or paragraphs of a treaty to redundancy or
inutility'".9 A proper interpretation of Article XXI(b) must therefore give meaning to all of the
enumerated subparagraphs. If the language "which it considers" is interpreted to qualify the
subparagraphs, the subparagraphs would be rendered inutile. In order to give meaning to all parts
of Article XXI(b), the enumerated subparagraphs must be interpreted as subject to objective review
by a WTO panel. Correctly interpreted, Article XXI(b) is therefore no t entirely self -judging. This
conclusion is supported by the fact that the chapeau does not include any terms to suggest that the
enumerated subparagraphs do not exhaustively list the types of actions covered by Article XXI(b),
such as "including" or "inter alia".10
12. This conclusion is further supported by the context provided by Article XX of the GATT 1994,
which requires a "two -tiered" analysis, the first tier of which consists of objectively determining
whether the measure at issue falls within the scope of one or more of the enumerated
subparagraphs.11

5 See Hong Kong, China's answers to Panel questions Nos. 8-11. See also Hong Kong, China's
third-party submission, para. 56.
6 See Hong Kong, China's answer to Panel question No. 15; third-party submission, para. 4.
7 See Hong Kong, China's third-party submission, paras. 20-32; third-party statement, paras. 13-21.
8 See Hong Kong, China's third-party submission, para. 23. See also Hong Kong, China's response to
Panel questions Nos. 13 and 14.
9 See Hong Kong, China's third-party submission, para. 25, quoting Appellate Body Report, Japan –
Alcoholic Beverages II, p. 12, quoting Appellate Body Report, US – Gasoline, p. 23; third-party statement,
para. 19.
10 See Hong Kong, China's third-party submission, para. 26; third-party statement, para. 18.
11 See Hong Kong, China's third-party submission, paras. 27-29, quoting Appellate Body Report, US –
Shrimp, paras. 118 and 119, quoting Appellate Body Report, US – Gasoline, p. 22 (explaining that the analysis
under Article XX is "two-tiered: first, provisional justification by reason of characterization of the measure
[under one of the subparagraphs]… ; second, further appraisal of the same measure under the introductory
clauses of Article XX (emphasis added)" and explaining that this analysis reflects "the fundamental structure
and logic of Article XX.").

13. The terms of Article XXI(b) must also be interpreted in light of their object and purpose, which
as Hong Kong, China has explained, requires "avoid[ing] interpretations that would enable Members
to 'circumvent' or 'evade' their obligations," including those under Article XIX of the GATT 1994. 12
In this regard, Hong Kong, China has highlighted the statement by the panel in Russia – Traffic in
Transit that a "general object and purpose of the WTO Agreement, as well as of the GATT 1994, is
to promote the security and predictability of the reciprocal and mutually advantageous arrangements
and the substantial reduction of tariffs and other barriers to trade", and therefore "[i]t would be
entirely contrary to the security and predictability of the multilateral trading system … to interpret
Article XXI as an outright potestative condition, subjecting the existence of a Member's GATT and
WTO obligations to a mere expression of the unilateral will of that Member."13 Hong Kong, China
concurs with the panel's statement.
14. In support of its interpretation of Article XXI(b) as entirely self-judging, the United States has
advanced certain arguments relating to the United States v. Czechoslovakia dispute and the views
previously expressed by WTO Members on Article XXI. Hong Kong, China respectfully submits that
the United States has failed to demonstrate that the Panel should take into account these arguments
as a matter of law, nor has the United States demonstrated that these arguments factually support
the U.S. proposed interpretation of Article XXI(b).14
15. Finally, throughout these proceedings, Hong Kong, China has expressed strong disagreement
with the U.S. view that the negotiating history detailed in the U.S. first written submission confirms
that Article XXI(b) is self-judging.15 Hong Kong, China has carefully examined the records of the
discussions surrounding the evolution of the language "which it considers" and disagrees that they
confirm that the drafters intended for this language to qualify the adjectival clauses that ultimately
became the subparagraphs of Article XXI(b). As Hong Kong, China has highlighted in its submissions
to the Panel, in contrast to the interpretation proposed by the Un ited States in the present parallel
disputes, in these early discussions the United States itself did not consider Article XXI(b) to be
entirely self-judging or that Members' rights of redress in respect of the exception would be limited.16
V. CONCLUSION
16. The text of Article XXI(b) of the GATT 1994, interpreted in its context and in light of the object
and purpose of that agreement, establishes that for a measure to be justified under that provision,
the action taken must objectively fall wit hin the scope of Article XXI(b). As the party invoking
Article XXI(b), the United States bears the burden of demonstrating that its measures fall within the
scope of that provision. 17 Additionally, consistent with the general international law principle of
pacta sunt servanda underlying all of the WTO -covered agreements, the Member invoking
Article XXI(b) must do so in good faith. For the reasons explained in Hong Kong, China's submissions
in the parallel disputes, Hong Kong, China respectfully submits that in its view, the complainants
have met their burden of proof and established a prima facie case that the U.S. measures violate
the relevant provisions of the GATT 1994 and the Agreement on Safeguards. Given that the proposed
interpretation by the Unit ed States of Article XXI(b) is flawed and the United States has failed to
meet its burden of proof under Article XXI(b),18 Hong Kong, China also respectfully submits that the
Panel should find that the U.S. measures are not justified under that provision.

12 See Hong Kong, China's third-party submission, para. 30, quoting Panel Report, Thailand – Cigarettes
(Philippines) (Article 21.5 – Philippines), para. 7.642.
13 See Hong Kong, China's third-party submission, para. 31, quoting Panel Report, Russia – Traffic in
14 See Hong Kong, China's third-party submission, paras. 33-36; 45-51, 54.
15 See Hong Kong, China's third-party submission, paras. 42-44; third-party statement, paras. 22-24.
16 See Hong Kong, China's third-party submission, paras. 42-44; third-party statement, paras. 22-24.
17 See Hong Kong, China's third-party submission, para. 57, citing Appellate Body Report, US – Wool
Shirts and Blouses, p. 16 (noting that the burden of establishing an affirmative defense "should rest on the
party asserting it.").
18 See Hong Kong, China's response to Panel questions Nos. 16-19, 21, 25, and 26.

ANNEX C-4
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF INDIA
I. Introduction
1. India notes that the United States does not contest any of the evidence presented and claims
raised, by the complainants in any of the 6 disputes in which India is a third party. In other words,
there is no longer any dispute that the measures at issue violate multiple provisions of GATT 1994
and Agreement on Safeguards.
2. The entirety of United States First Written Submissions is devoted to Article XXI(b) of
GATT 1994. Essentially, the United States argues that mere invocation of Article XXI(b) shields the
measures at issue from scrutiny by the Panel. India disagrees for the reasons outlined below. India
also notes that the United States also fails to offer any explanation as to how Article XXI could be a
defence against claims raised under Article XIX of GATT 1994 and Agreement on Safeguards (which
are themselves an exception to the obligations contained in Articles I, II, X and XI of GATT 1994).
Finally, the United States offers a generic defence under Article XXI without specifying the precise
sub-clause it invokes and without presenting any facts to support the invocation of Article XXI. India
submits that the burden of proof is on the United States1 to establish that Article XXI applies in the
facts and circumstances of the present dispute since Article XXI(b) of the GATT 1994 is an affirmative
defence, just like Article XX.
II. Justiciability of Article XXI(b) of the GATT 1994
3. The United States argues that Article XXI(b) is "self-judging" and this "has been the
consistently expressed view of the United States for more than 70 years".2 Nothing could be farther
from the truth3. Such assertion contradicts the comments made by the representatives of the United
States when Article XXI (and its predecessor) were being drafted4.
4. India considers that the terms "justiciable/non-justiciable" can neither be found in the DSU
nor in any other WTO covered agreements. These terms have not been addressed in past disputes
except in Russia – Traffic in Transit in which the United States, intervened as a third -party5.
Accordingly, India considers that these terms do not provide any guidance in relation to the standard
of review to be applied to an invocation of Article XXI in dispute settlement proceedings.
5. India submits that the invocation of Article XXI of GATT 1994 is subject to review by the Panel.
India notes that the Panel in Russia – Traffic in Transit supports India's position. The Panel held "[i]t
would be entirely contrary to the security and predictability of the multilateral trading system
established by the GATT 1994 and the WTO Agreements, including the concessions that allow for
departures from obligations in specific circumstances, to interpret Article XXI as an outright
potestative condition, subjecting the existence of a Member's GATT and WTO obligations to a mere
expression of the unilateral will of that Member."6
6. India also recalls that the panel explicitly rejected the United States ' position that
Article XXI(b)(iii) is non-justiciable7 and correctly found that Article XXI(b)(iii) of the GATT 1994 is
not totally "self-judging" in the manner asserted by Russia in those proceedings. Although the United

1 Appellate Body Report, US – Wool Shirts and Blouses, p. 16
3 Panel Report, Russia- Traffic in Transit, Appendix – subsequent conduct concerning Article XXI of the
GATT 1947, paras. 1.11 – 1.14 with regard to the views expressed by several US agencies in 1951 in United
States – Imports of Dairy Products (1951).
4 Exhibit USA-41, pp. 20-21.
5 Panel Report, Russia – Traffic in Transit, paras. 7.52 and 7.103.
6 Panel Report, Russia – Traffic in Transit, para. 7.79.
7 Panel Report, Russia – Traffic in Transit, para. 7.103 and fn 183.

States has not specifically asserted that it is invoking Article XXI(b)(iii), it is unimaginable that any
other sub-clause of XXI(b) could apply in the facts and circumstances of the present dispute.
7. Further in the 1982 Decision Concerning Article XXI of the General Agreement (1982
Decision)8 the contracting parties decided that a 'formal interpretation of Article XXI' was yet to be
taken and, in the meanwhile, 'all contracting parties…retain[ed] their full rights under the General
Agreement' and the GATT Council would give 'further consideration to th is matter in due course '.
Since this was a later and more specific agreement, which expressly resolved to keep the
interpretation of Article XXI open -ended and subject to further consideration, any purported
agreement which predated the 1982 Decision limiting the rights of parties to the GATT to this extent
would be modified or set aside by the 1982 Decision. Accordingly, Article 31(3)(c) of the VCLT gives
precedence to the 1982 Decision on the interpretation of Article XXI of GATT 1994.9
III. Interpretation of Article XXI(b) of the GATT 1994
8. India considers that the phrase "which it considers" appearing in Article XXI(b) does not qualify
the three subparagraphs of Article XXI(b). The subparagraphs only relate to the word "action" in the
chapeau. In other words, the three subparagraphs identify circumstances (the first two identifying
the types of goods and the third being a temporal circumstance) which must objectively be met in
order for a Member to take action under the chapeau. India consi ders that the phrase "which it
considers" relates only to the "necessity" of the action. Per contra, India is of the view that the
phrase "for the protection of [that Member 's] essential security interests " is not qualified by the
terms "which it considers".
9. India acknowledges that the words "which it considers " imply that a certain degree of
discretion is granted to the Member taking action. Accordingly, the standard of review would be
somewhere between "total deference" and "de novo" review, both of which are excluded10. It implies
that the United States must provide a rationale and plausible explanation regarding how or why it
considers that its measures are "necessary" for the protection of its essential security interests. It
is not India 's position that the panel make a judgment on what the panel itself "considers" is
"necessary" in the circumstances.
10. India also considers that the three subparagraphs to Article XXI(b) are exhaustive of the
circumstances covered by that provision. Article XXI(b) does not include any language to suggest
that the three paragraphs are merely illustrative. In that regard, it may be observed that Article XX
of the GATT 1994 containing "General Exceptions" similarly includes ten subparagraphs numbered
(a) to (j) without conjunction between the ten subparagraphs. The ten categories are exhaustive,
implying that in order to be ju stified under Article XX, a measure must necessarily fall "under at
least one of the ten exceptions listed under Article XX".11
11. India further considers that the words "relating to" in subparagraphs (i) and (ii) and "taken in
time of " in subparagraph (iii) are words linking each subparagraph to the word "action" in the
chapeau. Accordingly, there must be a substantive nexus between particular subparagraph, the
challenged measure and the security interests in question.
12. Finally, India considers that each of the three subparagraphs of Article XXI(b) is a relevant
context for the interpretation of the other two subparagraphs. The chapeau is also relevant context
for interpreting the subparagraphs. In particular, the three s ubparagraphs suggest that purely
economic interests would not fall within the scope of Article XXI(b)12. India submits that the phrase
"other emergency in international relations" in Article XXI(b)(iii) must be interpreted on the basis of
its ordinary meaning in light of its context.13 The panel in Russia – Traffic in Transit, explained that

8 Decision Concerning Article XXI of the General Agreement dated 30 November 1982, L/5426 at recital
3 and para 3 (2 December 1982).
9 International Law Commission, ‘Conclusions of the work of the Study Group on the Fragmentation of
International Law: Difficulties arising from the Diversification and Expansion of International Law 2006’ UN
Doc. A/73/10, p. 180, paras 17; VCLT, Articles 30, 41.
10 Appellate Body Report, EC – Hormones, para. 115.
11 Appellate Body Report, Brazil – Tyres, para. 139. See also, Appellate Body Report, Indonesia – Import
Licensing Regimes, para. 5.96; Appellate Body Report, China – Raw Materials, para. 354; Appellate Body
Report, EC – Seal Products, para. 5.169; Appellate Body Report, US – Gasoline, para. 57.
12 Panel Report, Russia – Traffic in Transit, paras. 7.75 and 7.133.
13 Panel Report, Russia – Traffic in Transit, paras. 7.71-7.76.

political or economic differences between Members are not sufficient, of themselves, to constitute
an emergency in international relations for purposes of subparagrap h (iii) ….. unless they give rise
to defence and military interests, or maintenance of law and public order interests .14 Accordingly,
for emergency in commercial or trade relations to be covered by Article XXI(b), it must pose a threat
to the functioning and/or stability of the respondent state, including the maintenance of law and
public order. Further, the use of the word "other" clearly "indicate[s] that war is one example of the
larger category of 'emergency in international relations'".15 Thus, the phrase "or other" makes clear
that the situation of "emergency in international relations" is of the same category as that arising in
the context of "war".
13. Finally, India submits that three subparagraphs are not cumulative in nature. The
subparagraphs describe three distinct circumstances in which a Member may invoke Article XXI(b).
The intent of the drafters is reflected in the structure of that provision, which contains three separate
subparagraphs, that are separated by a semicolon and de al with substantially different subject
matters16. This interpretation has been confirmed by the panel in Russia – Traffic in Transit17. The
United States is therefore required to identify a specific subparagraph of Article XXI(b) on which it
relies as part of its defence. The respondent may, if it wishes, rely on more than one subparagraph.
However, it must demonstrate that the conditions in each of the subparagraphs is satisfied.
IV. Exception to an Exception under the GATT 1994
14. India submits that the text and context of GATT 1994 do not support the proposition that the
agreement provides an exception to an exception, i.e. specifically put, it is India 's view that Article
XXI(b) cannot be an exception to Article XIX. In this regard, India supports t he interpretation
proposed by Switzerland 18. During the course of the substantive meeting India had argued that
Article XIX and XXI are separate mechanisms which allow Members to derogate from their general
obligations under GATT to address exceptional si tuations - economic emergency under XIX and
security interests under Article XXI. The general obligations could be, for instance, obligations under
Article I or Article II.
15. India further submits that assuming without conceding that the proposition adv anced by the
United States that Article XXI(b) is an exception to Article XIX, is tenable, the result would be merely
a "release" for the United States from certain substantive and procedural obligations contained in
Article XIX and the Agreement on Safegu ards. This is because when a respondent seeks to apply
Article XXI(b) as an exception to Article XIX, it makes two implicit admissions – (a) that the measure
is indeed a safeguard measure; and (b) that by applying Article XXI(b), it is not required to foll ow
the disciplines contained in Article XIX and the Agreement on Safeguards. As a result, the
Complainants would then be free to apply rebalancing measures pursuant to Article 8.3 because the
respondent has already admitted that the measure at issue does n ot confirm to the provisions of
Agreement on Safeguards.

14 Panel Report, Russia – Traffic in Transit, para. 7.75. See also, paras. 7.71-7.76.
15 Panel Report, Russia – Traffic in Transit, para. 7.72.
16 Panel Report, Russia – Traffic in Transit, para. 7.68.
17 Panel Report, Russia – Traffic in Transit, para. 7.68.
18 Opening Statement of Switzerland at the First Substantive Meeting of the Panel, US – Steel and
Aluminium Products (DS556), paras. 111 – 119.

ANNEX C-5
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
I. INTRODUCTION
1. Japan does not take a position on the merits of the claims and defenses that are before the Panel.
However, Japan has a systemic interest in the scope of application of the Agreement on Safeguards
and the availability of non -violation remedies when measures are justified under the security
exception in Article XXI of the General Agreement on Tariffs and Trade 1994 ("GATT 1994").
II. SCOPE OF APPLICATION OF THE AGREEMENT ON SAFEG UARDS
2. A "safeguard measure" is not a defined term or notion. Thus it seems to have limited value to
try to draw a line of what is a safeguard measure and what is not. Japan therefore disagrees with
the view that a measure is a safeguard measure when it contains certain elements, because such a
view is based on the premise that there is a definition for "a safeguard measure ". In order to
determine whether a measure can be characterized as a safeguard measure for purposes of
Article XIX of the GATT 1994 and the Agreement on Safeguards, various factors should be considered
on a case by case basis taking into consideration all relevant factors.
3. Notifications submitted by WTO Members are an example of a factor that may be relevant in
certain cases. A lthough notifications are not a prerequisite for the applicability of the safeguard
disciplines to a measure, notifications indicate that the relevant measure is taken to remedy "serious
injury or threat thereof." This provides some indication that the measure was designed to prevent
or remedy serious injury and thus should be considered as one of the relevant factors when
determining the applicability of the safeguard disciplines.
4. While notifications are an example of a relevant factor that may be considered to determine the
applicability of safeguard disciplines, a WTO Member’s formal "invocation" or its intention to exercise
the rights under Article XIX of the GATT 1994 is not a necessary factor for the safeguard disciplines
to apply. In fact, WTO p anels and the Appellate Body have generally avoided relying on a WTO
Member’s subjective intent.1 However, the Panel may consider the objectives pursued as reflected
in the measure itself or in statements made by the Member taking the measure.
5. Ultimately, a panel must look at all of the evidence available to ensure that a WTO Member is
not seeking to avoid the disciplines of Article XIX and the Agreement on Safeguards, or to frustrate
other WTO Members’ right to rebalancing measures. It is likewise i mportant to consider all of the
evidence, because otherwise, potentially, the Agreement on Safeguards could be applied to any
measure raising the tariff above the Article II tariff bindings, including anti-dumping measures. This
is particularly so given that a tariff by its nature only applies to imports, and thus even in the case
of anti-dumping measures, the allegation could be made that they are a remedy for injury suffered
by the domestic industry.
6. The terms "to suspend the obligation in whole or in part or to withdraw or modify the concession"
under Article XIX of the GATT 1994 are not necessarily synonymous with violations of the GATT
1994. That is, it may be possible to determine that a Member withdrew or modified a concession
without assessing whether there is a violation. Having said that, Japan recognizes that the
determination of violation could turn out to be merely a consequential step that does not require
much in terms of additional analysis. If the measure does not comply with the safeguard disciplines
under Article XIX of the GATT 1994 and the Agreement on Safeguards, then consequently, it will be
found simply to violate a GATT 1994 obligation.
7. A measure may have multiple objectives. For example, a measure may be taken for nati onal
security purpose as well as to prevent or remedy serious injury to domestic industries. In such
cases, the application of Article XXI of the GATT 1994 as well as the Agreement on Safeguards may
need to be considered, respectively. If a measure can b e justified pursuant to Article XXI of the

1 See, for example, Appellate Body Report, US – COOL, para. 420.

GATT 1994, there is no need to justify the measure pursuant to Article XIX of the GATT 1994 and
the Agreement on Safeguards. Article 11.1 (c) clarifies that measures that are in conformity with
Article XXI of the GATT 1994, should not be prohibited by Article 11.1(b) of the Agreement on
Safeguards and that such a measure need not be in accordance with the Agreement on Safeguards.
In this regard, Article 11.1(c) is one of the articles in the WTO Agreement that see k to avoid
situations where a measure that is WTO-consistent under one of the covered agreements becomes
WTO inconsistent under another agreement.
8. On the other hand, when the measure at issue is not justified under Article XXI of the GATT 1994,
the situation is more complex and a case -by-case analysis would be required. If the measure can
be characterised as a safeguards measure, considering all relevant factors, the safeguard disciplines
should be considered. If the measure falls under Article 11.1(b ) of the Agreement on Safeguards,
the measure should be withdrawn as such a measure is prohibited. Japan notes that in some cases,
it may be unclear whether the measure at issue can be justified as a safeguard measure or whether
it falls under the measures that are prohibited under Article 11.1(b) of the Agreement on Safeguards.
In such a case, it would be necessary to engage in a case -by-case analysis, considering various
factors to determine whether the measure is one of those that is prohibited or whether the measure
can be characterised as a safeguard measure.
III. NON-VIOLATION CLAIMS AGAINST SECURITY MEASURES JUSTIFIED UNDER ARTICLE XXI(B) OF THE
GATT 1994
9. While Japan does not take a view on whether the measures at issue are justified under
Article XXI(b) of the GATT 1994, Japan does not consider that the potential availability of a non -
violation remedy, in and of itself, provides a basis for concluding that Article XXI(b) is self -judging,
as suggested by the United States.
10. Japan considers that, if a measure that otherwise would be inconsistent with the GATT 1994
satisfies the security exception in Article XXI, then the appropriate conclusion to draw is that the
measure does not conflict with the GATT 1994. This does not mean, however, th at a non-violation
finding under Article XXIII:1(b) can always be made against such measures. Indeed, there are
several textual and contextual elements that appear to suggest that measures that satisfy Article
XXI are very unlikely to be subject to a non-violation remedy or, at the very least, that a complaining
party would have to overcome a high burden before succeeding in a non -violation claim in such
circumstances.
11. First, Article XXI(b) permits a WTO Member to take measures that would otherwise be deemed
inconsistent with the GATT 1994 in order to address essential national security risks. The purpose
of the security exception under Article XXI(b) of the GATT 1994 would be frustrated if it were the
case that security measures justified under Article XXI(b) were unvaryingly found to nullify or impair
benefits accruing to other Members, or to impede the attainment of the objectives of the GATT 1994.
12. The exceptional nature of the non-violation remedy also weighs against applying a presumption
that security measures justified under Article XXI(b) nullify or impair benefits or impede the
attainment of objectives under the GATT 1994. In Japan’s view, the very existence of a specific
exception under Article XXI(b) might indicate that WTO Members did not necessarily expect that
they would be challenged for actions that are properly justified under that exception.
13. Article XXIII:1 requires a panel examining a non -violation claim under Article XXIII:1(b) to
assess whether there was a reasona ble expectation, at the time that market access commitments
were negotiated, that the WTO-consistent measure at issue would not be taken. 2 Given that WTO
Members agreed that security measures taken under Article XXI(b) are permissible, they clearly
contemplated the possibility that the security exception would be invoked and thus should be
deemed to have reasonably expected that Members would have recourse to such an exception.
Japan is of the view that WTO Members cannot reasonably expect that other Mem bers will never
rely on Article XXI(b) to justify measures otherwise inconsistent with GATT obligations.
14. It is by no coincidence that during the GATT -era, non-violation claims were mostly used to
address subsidy measures, since at that time, explicit subsidy rules were not in place except for

2 See Panel Report, Japan – Film, paras. 10.76-10.77.

export subsidies. This situation arose not because the Contracting Parties agreed not to discipline
subsidy measures, but because the Contracting Parties could not agree on the rules. Thus, "non-
violation claims" were used to address issues that lacked explicit rules. Unlike such circumstances
where there was lack of explicit rules, Article XXI contains explicit rules for security exceptions. If
a measure fully satisfies the explicit rules in Article XXI, it wo uld not be reasonable to expect that
such measures could not be taken, and thus such a measure would not result in being subject to
non-violation remedy.

ANNEX C-6
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NEW ZEALAND
I. INTRODUCTION
1. New Zealand's participation in this dispute reflects its systemic interest in the proper
interpretation of Article XXI(b) of the General Agreement on Tariffs and Trade 1994 (GATT). Article
XXI(b) is being called upon by Members in a way that it has not been in the past. In this changing
climate, it is imperative that Article XXI(b) is interpreted in a principled and robust manner that both
preserves its utility and also guards against its abuse.
2. Article XXI(b) performs an important function. It permits Members to take measures that
would otherwise conflict with trade obligations in order to protect certain essential security interests,
and grants Members a degree of latitude to determine where this is necessary. This is not without
limit, however. Article XXI(b) contains elements that are su bject to objective review by a panel.
Further, like all treaty provisions, Article XXI(b) must be applied in good faith. Whether this good
faith obligation has been fulfilled is also a matter that is open to panel review. These limiting features
maintain the utility of the national security exception for Members, while still preserving the security
and predictability of the international trading system and protecting Article XXI(b) against misuse.
II. SCOPE OF PANEL REVIEW UNDER ARTICLE XXI(b) GATT
3. Article XXI(b) GATT provides that:
Nothing in this Agreement shall be construed
…
(b) to prevent any contracting party from taking action which it considers necessary for the
protection of its essential security interests:
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic
in other goods and materials as is carried on directly or indirectly for the purpose of
supplying a military establishment;
(iii) taken in time of war or other emergency in international relations;
4. A key issue in this dispute is the extent to which Article XXI(b) retains Members' discretion
to determine the matters contained in that provision, and the extent to which action taken in reliance
on it can be reviewed by a panel. As a preliminary point, it can be noted that this is not a question
of justiciability. The fact that a provision fully or partially defers to the judgment of a Member will
not, in itself, render conduct taken under that provision non-justiciable. As discussed further below,
all treaties must be applied and performed in good faith.1 Whether this obligation of good faith has
been met is a justiciable matter susceptible to pa nel review. The degree of discretion retained by
Members under Article XXI(b) will, however, impact upon the nature of a panel's assessment of that
conduct. An examination of the scope of this discretion is therefore an appropriate place to start
our interpretation.
Article XXI(b) contains both elements that defer to Members' own judgment and elements
that are capable of objective review by a panel
5. The starting point to the interpretation of Article XXI(b) is the phrase 'which it considers'
contained in the chapeau. It is clear from the words directly preceding the phrase, that the term 'it'

1 Vienna Convention on the Law of Treaties, Articles 31(1) and 26; Appellate Body Report US – Shrimp,
at para 158.

is a reference to the relevant contracting party. To 'consider' means “to contemplate mentally, fix
the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to,
take note of”. 2 This is an inherently subjective exercise. The use of 'which it considers ' in the
chapeau to Article XXI(b) signals that what is being referred to is a subjective assessment to be
carried out in good faith by the relevant contracting party.
6. The phrase 'which it considers' qualifies both the assessment of the 'necessity' of the action
taken and the determination of the invoking Member's 'essential security interests '. This is clear
from the structure of the chapeau to Article XXI(b). The terms in the chapeau run one after the
other. There is no grammatical or formatting division suggesting the phrase 'which it considers '
applies only to the term 'necessary' and not to 'for the protection of its essential security interests'.
This is further supported by the use of the term 'its' before 'essential security interests'. The chapeau
is not referring to essential security interests in the abstract, it is referring to t he essential security
interests of the particular Member invoking Article XXI(b). It would be artificial to suggest that any
entity other than a Member can determine that Member 's essential security interests. It is for a
Member, acting in good faith, t o determine its essential security interests, and the measures
necessary to protect those interests.
7. As recognised by the Panel in the recent decision Russia – Traffic in Transit , the phrase
'which it considers' does not qualify the three subparagraphs to Article XXI(b). Unlike the chapeau,
the sub-paragraphs are framed in objective terms. As noted above, the chapeau uses 'it considers'
and 'its essential security interests' to indicate that these are subjective matters left to the judgment
of a Member. In stark contrast, the subparagraphs are framed in purely objective terms: whether
the measures relate to fissionable materials; whether the measures relate to military materials;
whether the measures were taken in a time of war or emergency in inter national relations. This
reflects a deliberate effort to differentiate between those elements that are to be subjective and left
to the judgment of a Member, and those that are objective requirements, subject to determination
by a panel.
8. This interpr etation is supported by the context of Article XXI(b), in particular,
Article XXI(a), which provides that contracting parties shall not be required to furnish information
the disclosure of which it considers contrary to its essential security interests. A n objective
assessment of a Member 's asserted security interests and the necessity of action taken for their
protection could require a panel to be provided with information contrary to Article XXI(a).
9. This interpretation is also supported by the objec t and purpose of the GATT. The general
object and purpose of the GATT, as well as the Marrakesh Agreement Establishing the World Trade
Organization, is to 'promote the security and predictability of the reciprocal and mutually
advantageous arrangements and the substantial reduction of tariffs and other barriers to trade'.3 A
number of provisions, including Article XXI(b), permit Members to take measure that would
otherwise conflict with trade obligations in order to protect other interests. While these provisions
grant Members a degree of flexibility, they contain in -built limits to preserve the security and
predictability of the trading system and protect against abuse. The three subparagraphs to
Article XXI(b) perform this important limiting function by delineating the factual circumstances in
which Article XXI(b) can be invoked. As noted by the Panel in Russia – Traffic in Transit, it would
be “entirely contrary” to the security and predictability of the multilateral trading system established
by the above agreements to interpret Article XXI(b) as “an outright potestative condition, subjecting
the existence of a Member's GATT and WTO obligations to a mere expression of the unilateral will of
that Member”.4
10. Accordingly, whether the factual circum stances set out in one of the sub -paragraphs to
Article XXI(b) exist is a matter subject to objective panel review. In carrying out this review, a panel
should take into account the particular factual circumstances relevant to the invoking Member. It
would be unhelpful to attempt to prescribe the scope of each of the factual circumstances contained
in the sub-paragraphs. Whether a particular set of facts falls within the sub-paragraphs is a matter
to be assessed on a case by case basis. An overly formulistic approach to the interpretation of the

2 www.oed.com. Last accessed 04 July 2019.
3 See Appellate Body Report, EC – Computer Equipment, at para 82; Appellate Body Report EC –
Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US), at para 433; Appellate Body
Report EC – Chicken Cuts, at para 243.
4 Panel Report, Russia – Traffic in Transit, at para 7.79.

circumstances described in the sub -paragraphs could unduly limit the scope of Article XXI(b) and,
in doing so, undermine its utility. The terms of Article XXI(b) are not static. They must be read by
a treaty interpreter in the light of contemporary concerns of the community of nations.5 The degree
to which the existence of these factual circumstances must be substantiated by the Member relying
on Article XXI(b) will also depend on the circumstances.
Members are obliged to perform their obligations under Article XXI(b) GATT in good faith
11. It is a principle of general international law that all treaty provisions must be interpreted
and performed in good faith.6 This obligation of good faith arises irrespective of whether a provision
defers to the judgment of Members or is subject to objective review by a panel.
12. The obligation to perform a treaty in good faith requires Members to not use the exceptions
in Article XXI(b) as a means to circumvent its ob ligations under GATT. 7 In carrying out an
assessment of conduct taken in reliance on Article XXI(b), a panel may consider whether this
obligation of good faith has been met. There is no test, in the abstract, for how a panel should assess
whether this obligation of good faith has been met. 'Good faith' is not a threshold, or a standard of
proof, it is an assessment of the integrity of a Member's performance of a particular treaty provision.
This assessment will differ depending the facts and circumstan ces of the particular case. In the
context of Article XXI(b), it will likely involve consideration of the connections between the measure
in dispute, the essential security interests engaged and the factual circumstances in the relevant
sub-paragraph. The question for the panel is whether, in all relevant circumstances, the Member 's
reliance on Article XXI(b) is a good faith performance of that provision.

5 Panel Report, US – Shrimp, at para 129.
6 Vienna Convention on the Law of Treaties, Articles 31(1) and 26; Appellate Body Report US – Shrimp,
at para 158.
7 Panel Report, Russia – Traffic in Transit, at para 7.133.

ANNEX C-7
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY
I. THE "JUSTICIABILITY" OF ARTICLE XXI(b) OF THE GATT 1994

1. The United States accepts that the Panel has jurisdiction over this dispute, in the sense that
the DSB has established the Panel to examine the matter set out in the panel request. 1 However,
the United States asserts that the Panel cannot undertake any meaningful review of the US actions
that are purportedly justified under Article XXI(b),2 because, based on its terms, "whether and what
circumstance action is necessary to protect its essential interests" is entirely "self-judging", by virtue
of the phrase "which it considers".3
2. In sum, the United States argues that Article XXI(b) establishes a right – to take GATT -
inconsistent security measures – with no scope whatsoever for a panel to review the obligations and
conditions that qualify that right. Thus, the dispute is subject to the Panel 's jurisdiction, but the
Panel may not undertake an objective review, by virtue of the phrase "which it considers".
3. Norway strongly disagrees with this argument b y the United States. If mere invocation of
Article XXI(b) would render a claim "non-justiciable", this would allow easy circumvention of WTO
obligations. If a respondent could effectively bar a panel, that the United States acknowledges enjoys
jurisdiction, from undertaking objective review by mere invocation of a security exception, this would
give "carte blanche" for WTO Members to unilaterally set aside the rules that the legitimacy of the
rule-based system rests on. A respondent could invoke a variety of protectionist interests under the
guise of national security, and thereby avoid scrutiny of its WTO -inconsistent measures altogether.
Such a measure could violate any of the Member 's WTO obligations, and a WTO panel would be
barred from making any findi ngs of inconsistency. An interpretation of Article XXI(b), which had
this effect, would render all the obligations in the GATT 1994 effectively unenforceable.
4. Moreover, if the intentions of the negotiators were for the panel to have no authority to assess
a Member's invocation of a security exception provision, one would also have expected such an
important and significant matter be expressly provided for.4
II. ORDER OF ANALYSIS UNDER ARTICLE XXI(b) OF THE GATT 1994

5. Article XXI(b) operates to justify certain GATT -inconsistent action, using the same language
as Article XX: "nothing in this Agreement shall be construed to prevent any Member from taking
any action which…". Hence, Article XXI(b) is, just like Article XX, an affirmative defence to a violation
of the GATT 1994. Under Article XX, panels and the Appellate Body have, without exception,
addressed first whether the complainant has made out its claims of WTO-inconsistency; and second
whether the respondent has made out its affi rmative defence that the measures are justified. This
is because an affirmative defence is only relevant where a panel has found a violation. If there is no
violation, then the relevant exceptions provision has no operative role; there is nothing to justify in
the first place. Logically, therefore, where a respondent invokes Article XXI(b), the panel should first
confirm whether there is a violation; and second whether the violation is justified.
6. Moreover, it is well-accepted, from jurisprudence under Article XX of the GATT 1994, that it is
the WTO-inconsistent aspect of the measure – and not the measure as a whole – which must be
justified.5 Of course, a panel cannot identify the WTO-inconsistent aspects of a measure that would
require justification, until it has addressed the claims. Hence, in our view, it is clear that the same
reasoning must apply with respect to the other exceptions provisions applicable under the GATT
1994. By contrast, if a panel were obliged to address Article XXI(b) before addressing the claims, it

1 The United States' first written submission, para. 184.
2 The United States' first written submission, para. 184.
3 The United States' first written submission, para. 3.
4 The “justiciability” of the security exceptions is also supported by the GATT Council Decision
Concerning Article XXI of the General Agreement, 30 November 1982, L/5426.
5 Appellate Body Report, US – Gasoline, pp. 13-14; Appellate Body Report, Thailand – Cigarettes, para.
177; Appellate Body Reports, EC – Seal Products, para. 5.185.

would also have to assess whether the measures are justified in a vacuum, without yet having
determined which aspects of the measures are WTO-inconsistent.
III. BURDEN OF PROOF UNDER ARTICLE XXI (b) OF THE GATT 1994
7. Article XXI(b) of the GATT 1994 is an affirmative defence, just like Article XX. The Appellate
Body has found that the burden for establishing limited exceptions in the GATT 1994 lies with the
party asserting the defence. 6 Hence, a respondent invoking an affirmative defe nce must bear the
burden of proving that the applicable conditions are met. If the respondent does not take on that
burden, beyond invoking an exception, a panel should not proceed to consider the merits of the
exception.
8. Consequently, if the complaina nt establishes that a measure imposed by the respondent is
inconsistent with the provisions of the GATT 1994, and the respondent does not make a prima facie
case that those measures are justified under Article XXI, the panel must, as a matter of law, rule in
favour of the complainant. In our view, the panel in Russia – Traffic in Transit failed, in effect, to
treat Article XXI(b) of the GATT 1994 as an affirmative defence. The respondent in that dispute
argued only that the security exception is not "justiciable", and did not adduce evidence and
argument on the merits. In those circumstances, the panel should have found that the respondent
did not make its case, and found in favour of the complainant.
IV. STANDARD OF REVIEW UNDER ARTICLE XXI (b) OF THE GATT 1994
9. The United States agrees that the Panel has jurisdiction over this matter. 7 However, the
United States takes the radical position that, because it has invoked Article XXI(b) of the GATT 1994,
the Panel cannot make any substantive findings. In other words, while the Panel has jurisdiction,
its review is empty of any substantive content.
10. In any given dispute, the standard of review under Article 11 "must be understood in light of
the specific obligations of the relevant agreements that are at issue in the case".8 To give effect to
the chosen terms of Article XXI(b), and to the obligation to make an "objective assessment", the
Panel must reject the US position that the appropriate standard of review under Article XXI(b) is
total deference to the respondent.
V. INTERPRETATION OF ARTICLE XXI(b) OF THE GATT 1994
11. The US position that Article XXI(b) is self-judging rests on two incorrect interpretive premises:
first, the phrase "which it considers" applies to the subparagraphs of Article XXI(b); and second the
phrase renders any other terms to which it attaches "self-judging". In Norway´s view, however, the
subparagraphs of Article XXI (b) are not qualified by "which it considers " and the chapeau is not
"self-judging" by virtue of the terms "which it considers".
A. The subparagraphs of Article XXI(b)
12. The US first interpretive error is to misunderstand the relationship between the chapeau and
the subparagraphs. The United States argues that subparagraphs (i) and (ii) qualify the term
"essential security interests" in the chapeau, and not the word "action".9 On this basis, the United
States (incorrectly) argues that ea ch subparagraph must be understood as simply endings to a
sentence that begins with "which it considers". The United States thereby injects the verb "consider"
from the chapeau into the subparagraphs. As a result, for the United States, the fulfilment of the
legal conditions in the subparagraphs depends entirely on a respondent's subjective "consideration".
The United States is wrong.
13. Properly interpreted, each of the three subparagraphs qualifies the word "action", and not the
words "essential security interests ". This follows from the text, context, object and purpose, and
negotiating history of Article XXI(b). In particular, the US view is irreconcilable with the Spanish

6 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
7 The United States' first written submission, para. 184.
8 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 92; Appellate Body
Report, US – Countervailing Duty Investigation on DRAMS, para. 184.
9 The United States' first written submission, paras. 29-34.

version of the text, in which the term "relativas" (relating) can only qualify the word "medidas"
("action"); and, the chapeau / subparagraphs are broken by a comma.
14. The chapeau / subparagraph relationship has important implications for the Panel's approach
under Article XXI(b). Specifically, as a consequence of the relationship, a Member 's "action" under
Article XXI(b) is subject to two sets of distinct and independent conditions:
(1) the "action" must "relate to" the specific circumstances set forth in subparagraph (i)
or (ii), or be "taken in time of war or other emergency in international relations ",
under subparagraph (iii); and,
(2) it must be "action" that the Member "considers necessary" for the protection of its
essential security interests.
15. As a first step, therefore, a panel must make an objective assessment of whether the Member
has demonstrated that the "action" meets the circumstances / situation in at least one of the
subparagraphs. Textually, the phrase "which it considers " is not part of this step. Therefore, a
Member's demonstration that it fulfils the conditions in the subparagraphs is not subject to a more
forgiving standard of review flowing from the verb "consider" in the chapeau.
16. The United States has not identified a subparagraph of Article XXI(b), let alone substantiated
that its actions meet the terms of any of the subparagraphs. The United States therefore fails to
make a prima facie case, and the Panel's analysis may stop at the first step.
B. The chapeau of Article XXI(b)
17. The US second interpretive error relates to the second step of the Panel 's analysis: is the
measure "action" which the Member "considers necessary" for the protection of its essential security
interests? The United States is wrong that the legal effect of the terms "which it considers" is that,
in assessing this question, a panel must afford total deference to the respondent.
18. Norway agrees that the phrase "which it considers " means a panel should afford the
respondent a degree of deference. However, a standard of "total deference ", with no scrutiny
whatsoever of a Member's action, fails to give effect to the chosen treaty terms, and the requirement
of "objectivity" under Article 11 of the DSU.
19. The verb "consider" has a specific meaning: to "look attentively"; and, in transitive form, "to
contemplate mentally, fix the mind upon ".10 Thus, the verb "considers" in the chapeau of Article
XXI(b) establishes an obligation for a Member to undertake an attentive examination that the legal
conditions in the chapeau are met.
20. Indeed, the surrounding words "necessary", "for the protection of", and "essential" each have
their own specific meaning, and establish legal conditions that constrain the types of action that a
respondent may take. The treaty interpreter cannot interpret two words in the chapeau in a way
that deprives the surrounding context of meaning.
21. By way of contrast, the drafters could have chosen a different verb than "considers", and
different surrounding words. For example, Article XXI(b) could have permitted a Member to take
any action which it "declares necessary for the protection of its essential security interests "; or,
which it "considers, in its judgment, fruitful to its security interests". The more open-ended language
in each example would connote a far greater degree of discretion than the language the drafters
actually chose.
22. The US interpretation of the chapeau as "self-judging" therefore reduces the chapeau's
disciplines to inutility, and overrides Article 11 of the DSU. If the Panel accepts that Article XXI(b)
is "self-judging", a Member could justify any action under the chapeau, however spurious its national
security justification, thereby circumventing its GATT 1994 obligations, and defeating the object and
purpose of the GATT 1994.

10 Oxford English Dictionary definition of “consider”, last accessed 4 November 2019, (Exhibit NOR-
27).

ANNEX C-8
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE RUSSIAN FEDERATION
I. Introduction
Russia welcomes this opportunity to present its views as a third party in these disputes.
Russia recalls that seven Members challenge the US' import adjustments on steel and
aluminium products in parallel disputes. 1 The proper legal characterization of these measures is at
the heart of e ach of them. The reasons and grounds for adopting the measures at issue are not
country-specific and are applicable to all complaints, showing a significant overlap between these
disputes.
While the Russian Federation recognizes the exclusive right of the respondent to choose its
line of defense, the US ignored and, therefore, failed to rebut complainants` specific arguments
regarding inconsistency of the measures at issue with the GATT 1994 and the Agreement on
Safeguards merely asserting that these me asures are consistent with Article XXI (b) of the GATT
1994. In this regard, Russia stands that (i) the US failed to invoke Article XXI(b) of the GATT 1994
to justify the measures at issue as necessary for protection of its essential security interests; (ii) the
measures at issue are safeguards in their essence.
II. The task of the Panel and the order of analysis
The complainants in each of the seven disputes claim that the measures by the United States
on certain steel and aluminium products fall within the scope of the Agreement on Safeguards and
Article XIX of the GATT 1994. The United States, on the other hand, does not characterize its
measures on steel and aluminium as safeguard measures: according to the United States, the
measures were introduced pursuant to Section 232 of the Trade Expansion Act of 1962, aimed at
protection of national security interests and fortification of steel and aluminium industries.
The fact that the measures at issue are not characterized by the United States under the
domestic law as safeguards is, in and of itself, not dispositive of the question of whether the
measures constitute safeguards within the meaning of Article 1 of the Agreement on Safeguards.
Otherwise, the domestic characterization of a measure could negate Member's obligations under the
WTO agreements.
In such a situation, the Panel`s first task is to determine whether or not the measures at issue
are designed: 1) solely to protect essential security interests of the United States; 2) solely to avoid
injury (or threat thereof) to its national steel and aluminum industry from imports of like or directly
competitive products; 3) combination of both items.
If the Panel positively concludes that the measures at issue fall solely under the first scenario
(protection of essential security interests of the United States ), it will be in a position to proceed
with the analysis of the United States` defense under Article XXI(b) of the GATT 1994. If the Panel
determines that the measures are designed to protect the US domestic steel and aluminum
industries from the injury or threat thereof caused by imports of like or directly competitive products,
the Panel may proceed with examining their consistency with Article XIX of the GATT 1994 and the
Agreement on Safeguards.
To conclude, whether or not the measures by the United States qualify as measures provided
for in Article XIX of the GATT 1994 or measures provided for in Article XXI(b) of the GATT or both is
an objective question that the Panel must decide based on the objective assessment that it is
required to make pursuant to Article 11 of the DSU. In making its objective assessment, the Panel

1 These parallel disputes over the legality of the United States' import adjustments on steel and
aluminium products, are DS544 (China), DS547 (India), DS548 (EU), DS552 (Norway), DS554 (Russia),
DS556 (Switzerland) and DS564 (Turkey).

must engage in a case -specific analysis by examining all of the relevant facts and examine the
constituent features of the measures at issue.
III. Invocation of Article XXI(b) of the GATT 1994
There is no disagreement between the parties that the panels have jurisdiction to resolve the
disputes, as the US confirms its existence. The Panels were established by the DSB with the standard
terms of reference in accordance with Article 7.1 of the DSU, without any exemptions, exceptions
or limitations thereto. Therefore, the Panel's function is to examine the matters set out in the panel
requests and to make an objective assessment of the matter before it pursuant to Article 11 of the
DSU, as well as the applicability of and conformity with the relevant covered agreement s assisting
the DSB in making its findings and recommendations. Making any provisions "non-justiciable", the
way the US puts it forward, will directly prevent the Panel to meet this function.
Nothing in the Panel's terms of reference or in the WTO Agreements indicates that this Panel
is not able to resolve the disputes and make necessary findings, or that invocation of Article XXI(b)
of the GATT 1994 affects in any way or limits the ability of the Panel to make such findings and
therefore to assist the DSB in making relevant findings and recommendations.
Specific attention should also be paid to the US attempts to introduce the concept of
"justiciability" to the context of the WTO Agreement without providing any arguments based on the
text of any of the WTO Agreements, including the DSU, in order to support this concept. Given that
the WTO Agreements do not provide for this concept, explicitly or implicitly, Russia would like to
caution the Panel from taking the path of bringing a new term to the WTO dispute settlement system
and remind that the recommendations and rulings of the DSB cannot add to or diminish rights and
obligations provided in the covered agreements. Introduction of a concept non -existent under the
covered agreements clearly violates the provisions of Article 3.2 of the DSU.
Turning to the substance of Article XXI(b) of the GATT 1994, Russia would like to notice the
following. It starts with a chapeau ("nothing in this agreement shall be construed") followed by the
list of actions that may not be prevented by the application of the GATT 1994. In the wording of the
chapeau of this Article there are no limiting conditions under which the measure applied shall fall.
On the contrary, the chapeau provides that there could be no limitatio ns in the Agreement for the
specific purposes provided by that Article.
The wording in this part of the said Article provides that it is the Member taking the action
who determines which actions are necessary to protect its essential security interests and excludes
any objective examination or evaluation by adjudicative body. Therefore, the Panel is not in a
position to make an objective determination as to whether the Member taking such an action is
inconsistent with the chapeau.
The adjectival clause "which it considers" in the chapeau can be read to qualify the "necessity"
of the action for the protection of the invoking Member`s essential security interests, as well as the
determination of these "essential security interests".
Thus, Russia considers that it is within the sole discretion of a Member to determine its
essential security interests and what actions are necessary for their protection. Should a Member
consider certain actions necessary to protect its essential security interests, the declaration thereof
by that Member is enough to satisfy the requirements of the chapeau of Article XXI(b) of the GATT
1994. Neither WTO panels nor the WTO itself have the right to determine the essential security
interests for the Member, whether the Member correctly chose the action necessary to protect those
security interests and whether or not that action is indeed necessary.
The presence of subjective element, however, does not preclude the panels to assess the facts
related to the measures at issue, applicability of the GATT to the measures at issue and conformity
of the measures at issue with the relevant provisions. The possible panel`s judgement that the term
"which it considers" qualifies the determination of the essential security interests and necessity of
the actions and, thus, leaves these elements under sole discretion of the Members, does not prevent
the Panel to finish its analysis and resolve the matter before it in a WTO consistent way.

Meanwhile, the compliance with Article XXI(b) of the GATT 1994 is conditioned by three
distinct settings (subparagraphs i-iii). These subparagraphs and the way they are formulated
represent the objective elements that are susceptible to the Panel's review au contraire to the
chapeau.
The required nexus between a particular subparagraph and the measures (actions taken t o
protect) is established through the phrases "relating to" (connection with subparagraphs (i-ii)) and
"taken in time of" (connection with subparagraph (iii)).
As a result, the Panel shall determine whether the measures at issue meet the requirements
of either subparagraph. In order to do so, the Panel shall assess the legal arguments and evidence
provided in support. A conclusion that the measures meet these requirements is a necessary
prerequisite in order to establish whether they could be justified under the national security
exceptions.
However, Russia wishes to note that the US seems to have invoked only the chapeau of
Article XXI(b) of the GATT 1994 without indicating which particular subparagraphs out of three
applies and why. The reading of Article XXI(b) of the GATT 1994 proposed by the US makes part of
this Article, i.e. subparagraphs (i) -(iii), redundant and inutile. However, the drafters of the
GATT 1994 have specifically added the three subparagraphs qualifying the introductory statemen t,
which must not be regarded as effectively absent in the text. The Panel bears the task of giving
them their proper meaning.
Thus, Russia is of a position that when invoking Article XXI(b) of the GATT the respondent is
under obligation to identify a particular subparagraph of Article XXI(b) of the GATT 1994. The
complainants and the Panel should not be left to guess whether the measures in question are related
to any of subparagraphs. Mere reference to Article XXI(b) without any identification of a particular
subparagraph or any combination of such subparagraphs strips these paragraphs of all the meaning
and reduces the text of the Article to its chapeau only.
Therefore, in these proceedings, the Panel was deprived of an ability to assess in which
particular circumstances the measures at issue were taken and examine whether these particular
circumstances really exist within t he meaning of Article XXI(b)(i) -(iii). The US failed to fulfill its
burden of proof and appropriately justify its defense.
Although the US failed to identify relevant subparagraphs and provide any arguments why
they are applied in relevant situation, Russia would like to note the following.
None of the subparagraphs of Article XXI(b) of the GATT 1994 could be applied in the present
situations since neither the relevant acts of the US, nor its submissions shed light on the close and
genuine relationship between the measures in question and fissionable materials or the materials
from which they are derived; or the traffic in arms, ammunition and implements of war and to such
traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying
a military establishment. Neither the relevant acts of the US, nor its submissions elaborate on any
chronological concurrence in case of the measures at issue and any war or any other emergency in
international relations that required the US to take said measures.
It is important to note that import adjustments on steel and aluminium (1) were implemented
by the US through the same sources, same legal acts in respect of all the countries, (2) have the
same reasoning and grounds for all of the adjustments in respect of all the Members affected, (3) it
is not possible to isolate the cause for adoption of the measures at issue for one particular WTO
Member.
Therefore, even if the Panel were in a position to engage into ana lysis of the applicability of
any of the subparagraphs to any of the WTO Member in isolation, it would constitute an error since
the measures at issue are not country-specific.
To sum up, in Russia`s view the task of the Panel is (i) to conclude that t he chapeau of
Article XXI(b) of the GATT 1994 is a subjective element, remaining in the discretion of the sovereign
state, limited by the obligation of good faith; (ii) to assess whether the defending Member acted in
good faith while imposing and maintaini ng the measures at issue; (iii) to review whether the

defending Member met the requirements under subparagraphs. In respect of the latter, Russia is of
the position that the US failed to establish a prima facie case under Article XXI(b) of the GATT, as it
failed to 1) refer to particular subparagraph, 2) provide all relevant evidence and explanations
supporting that those actions taken for protection of the essential security interests (i) relate to
fissionable materials, (ii) relate to traffic in arms, amm unition and implements of war, and/or (iii)
were taken in time of war or other emergency.
In their turns, the complainants in these disputes have provided sufficient evidence to
establish prima facie case of numerous violations under the Agreement on Safeguards and the
GATT 1994. This evidence supports complainants` position that the measures at issue are purely
safeguards in their nature, object and purpose and have nothing in common with the securit y
exceptions. We believe that the nature of the measure could not be unilaterally determined by the
Member. In order for a measure to be subject to security exception it is not enough just to label it
as such under domestic procedures.
Russia would also like to note that if a particular measure complies with a particular provision
of a particular WTO Agreement, this automatically means only one thing – that the measure complies
with that provision of that particular WTO Agreement. This does not mean tha t the measure is
automatically excluded from being subjected to provisions of another WTO Agreement. Therefore, if
the measures at issue meet the requirements of Article XXI(b) of the GATT 1994, their consistency
with Article XXI(b) of the GATT 1994 does n ot exclude the Panel`s examination of the applicability
of the Agreement on Safeguards.
There is no mutual exclusivity between the GATT 1994 and the Agreement on Safeguards.
Article XIX of the GATT 1994 and the Agreement on Safeguards are silent in res pect of particular
reasons for a Member to seek to prevent serious injury to its producers as a result of increased
imports, whether this is done for employment, protection of traditional industries, environmental,
national security or any other reasons. T herefore, when a Member adopts an emergency action
against such imports the Member shall comply with the requirements of Article XIX of the GATT
1994. If the prevention of injury is needed for national security purposes, the Member adopting the
emergency action shall comply with the requirements of Article XXI(b) of the GATT 1994.
IV. Legal characterization of measures at issue as safeguards
The Russian Federation concurs with the complainants that the United States ' measures at
issue present the consti tuent features of safeguard measures within the meaning of Article XIX of
the GATT 1994 and the Agreement on Safeguards, and thus constitute safeguard measures on the
basis of an objective analysis.
First, the United States has withdrawn or modified i ts tariff concessions and suspended at
least one of its obligations under the GATT 1994. By introducing additional duties, the United States
has exceeded the bound rate established under its Schedule of concessions on goods (Schedule),
which amounts to withdrawal or modification of its tariff concessions. By withdrawing or modifying
its concessions under the Schedule, the United States has suspended its obligations under Article
II:1(a) and (b) of the GATT 1994.
Second, by their design, structure and expected operation, the import adjustments on certain
steel and aluminium products sought to prevent or remedy the impairment to the domestic industry
of the United States caused or threatened by increased imports of the subject products. This specific
objective of the United States ' measures is discernible from the texts of the U.S. President 's
respective Proclamations, as well as the investigation Reports on the effects of imports of steel and
aluminium coupled with related documents, such as the U.S. Pres ident's Memoranda on imports of
steel and aluminium, associated announcements, as well as numerous statements by the U.S.
President.
Third, the withdrawal or modification of tariff concessions and suspension of GATT obligations
have a demonstrable link to the prevention or remediation of the alleged serious injury.
In the range of legal instruments and official statements, the United States specifically
declared that the measures are sought to stop the decline in its steel and aluminium industries
caused by imports, to provide relief to those industries from competition with imports, to enable the

respective domestic industries to increase their production capacity or capacity utilization and
profitability, and to prevent the closures of production facilities.
Tariff concessions and obligations under the GATT 1994, in particular, those under
Article II:1(a) and (b), however, impeded the ability of the United States to achieve its goals
(prevention or remedying the alleged injury or threat thereof to the U.S. industry). Thus, the United
States chose to suspend those tariff concessions and obligations. While suspending its tariff
concessions and its obligations under Article II:1(a) and (b) of the GATT 1994, the United States
has limited imports of steel and aluminium products by making steel and aluminium products
originating from certain Members more expensive when marketed in the United States.
Hence, there is a clear link between the withdrawal or modification of tariff concessions and
suspension of GATT obligations to the prevention or remediation of the alleged serious injury.
The US in support of its position states that notification under the relevant provisions of
Article XIX of the GATT 1994 and of the Agreement on Safeguards is a prerequisite to the
applicability of safeguard disciplines to the measures taken. In respect of import adjustments on
certain steel and aluminium products it did not notify them as safeguard measures, on this basis, in
its view, the measures could not be deemed safeguards. These allegations must fail.
Notifications pursuant to Article XIX:2 of the GATT 1994 or Article 12 of the Agreement on
Safeguards are neither necessary condition nor a prerequisite for the applicability of safeguard
disciplines. The compliance with any of obligations set forth in Article XIX:2 of the GATT 1994 and
Article 12 of the Agreement on Safeguards does not affect the consistency of measures with other
provisions under Article XIX of the GATT 1994 and the Agreement on Safeguards.
Absence of a notification does not and cannot change any of the constituent features of
safeguards measures. Being otherwise would help Members to escape from application of the
provisions of the Agreement on Safeguards and negative consequences t o their measures (for
example, DSB's finding on inconsistency of such measures with the Agreement on Safeguards).
Notification requirements are not an instrument of characterization or identification of
measure's nature, but of transparency. Otherwise, if the applicability of a WTO agreement were to
be established based on Member's compliance with the notification requirements:
− should that be so, the issue of the applicability of an agreement would be excluded from
objective assessment by a panel, as it would be left for Member 's discretion to choose a
particular agreement under which to notify its measure;
− in such a logic a measure that was not properly notified under particular agreement becomes
non-existent, as by not notifying that measure under any agreement at all a Member
effectively declares that there are no relevant notification requirements that a measure falls
under. Therefore, there's no WTO agreement that measure is covered by.
Furthermore, the United States claims that the Agreement on Safeguards does not apply to
measures that a Member considers necessary for the protection of its essential security interests
through Article 11.1 (c) of the Agreement on Safeguards, which provides that "this Agreement does
not apply to measures sought, taken or maintained by a Member pursuant to provisions of GATT
1994 other than Article XIX". In this regard, Russia notes the following.
 Hypothetically, there might be three scenarios. First, a measure is sought, taken or
maintained exclusively pursuant to provisions of Article XIX of the GATT 1994. Second, a measure
is sought, taken or maintained pursuant to provisions of Article XIX of t he GATT and some other
provisions of the GATT 1994. Third, a measure is sought, taken or maintained exclusively pursuant
to provisions of the GATT 1994 other than Article XIX of the GATT 1994. Only the latter category of
measures is excluded from the scope of the Agreement on Safeguards in accordance with Article
11.1(c).
We note that every term in this Article, as any treaty provision, has its own meaning and due
attention should be paid to it. Without providing definitions of the terms "sought", "taken" or
"maintained" Russia is of the view, that they represent different stages of measure 's "life", i.e.

whether a Member tries to take the measure (initial stage where the measure does not exist yet),
whether a Member has already taken the measure (the action is made, measure becomes alive) and
"maintained" (the measure exists for some time, long lasting measure that continues to exist).
The second interpretation of the words "seek", "take" and "maintain" may be derived from the
text of Article 11.1(b) which uses the same combination of the terms. In the context of this provision
it is obvious that the word "seeks" is used in the meaning "asks/requests from someone ". This
provision covers measures, in particular, in respect of exports, that can only be obtained from
another Member. Therefore, the text of Article 11.1(b) effectively says that a Member must not
request another Member to adopt, in particular, exports re strictions. Given that the forms in which
"emergency actions" may be taken under Article XIX of the GATT and the Agreement on Safeguards
are not predetermined or exhaustively listed, the same meaning of the term "seek" may be applied
in the context of Article 11.1(a) or 11.1(c).
V. Conclusion
Russia has already noted that each of the seven disputes has the same subject matter and,
therefore, there is a significant overlap between them. This fact has a bearing on how the panels in
the respective disputes should go about the ensuring security and predictability to the multilateral
trading system. The delicate issue here is that when two or more panels are tasked with the duty to
resolve the same matter or closely related claims such a situation raises complex issues. The most
dangerous consequence of the parallel proceedings involving the same or closely connected matters
is the contradictory outcome of the disputes. This should be avoided.
It follows from Articles 3.2 and 3.4 of the DSU that a holi stic and coherent resolution of all
parallel disputes is critical for the overall vitality of the multilateral trading system.
Russia reminds that the ultimate goal of the Panel is to make such findings "as will assist the
DSB in making the recommendations or in giving the rulings provided for in the covered agreements"
pursuant to Article 11 of the DSU. The achievement of this goal will be seriously prejudiced should
the panels arrive at the different conclusions as for the proper legal characterization of the measures
at issue in the respective disputes, given that these measures are the same.

ANNEX C-9
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SINGAPORE
I. INTRODUCTION
1. This dispute raises novel issues concerning the interpretation of Article XXI of the GATT and
whether it can be used as a defence to justify inconsistencies with the Safeguards
Agreement. Singapore is not commenting on the merits of the claims and defences raised
by the parties to the current disputes. Singapore's participation is strictly limited to whether
Article XXI is applicable to and can be used as a defence to justify inconsistencies with the
Safeguards Agreement, whether a Panel has jurisdiction over Article XXI, and the
interpretation of Article XXI, in particular, the chapeau of Article XXI(b).
II. EXECUTIVE SUMMARY OF SINGAPORE’S THIRD PARTY ORAL STATEMENT
A. Whether Article XXI is applicable to and can be used as a defence to justify
inconsistencies with the Safeguards Agreement
2. Article XXI is not applicable to and cannot be used as a defence to justify inconsistencies
with the Safeguards Agreement. The Appellate Body has applied a standard "analytical
approach" in determining the relationship between the provisions of different covered
agreements1 and the absence of an explicit cross-reference to Article XXI in the Safeguards
Agreement is not per se dispositive of the issue.
3. Safeguard measures allow WTO Members to take action that would otherwise be
incompatible with their obligations under the GATT 19942. Article XIX of the GATT 1994 and
the Safeguards Agreement operate to provide for the suspension of the application of the
obligations under the GATT 1994, and may be imposed "only" where the conditions and
circumstances listed in the relevant provisions are satisfied3. In other words, the Safeguards
Agreement already provides a comprehensive set of provisions as to when a Member may
justifiably apply safeguard measures. Allowing Article XXI to apply as an exception to the
Safeguards Agreement would not b e aligned with the comprehensive nature of the
Safeguards Agreement and would be inconsistent with the intent to provide greater discipline
when Members apply safeguard measures.
4. Further, the Safeguards Agreement is a different creature from other WTO Agreements as it
essentially provides for the suspension of GATT obligations. To layer Article XXI over and
above the provisions of the Safeguards Agreement would require a clear intent to be distilled
from the text of those provisions read in their proper context. This is not the case here.
Given the sui generis nature of the Safeguards Agreement, our views are confined to the
Safeguards Agreement only.
B. The Panel's jurisdiction in respect of Article XXI
5. The Panel has jurisdiction over any Member's i nvocation of Article XXI in WTO dispute
proceedings and the Panel is required to address such invocation. The phrase "shall address"
in Article 7(2) of the DSU indicates that panels are "required to address the relevant

1 This requires an agreement-by-agreement analysis that starts with the text of the agreement in
question, and entails a "thorough analysis of the relevant provisions", on the understanding that the lack of an
express textual reference is not dispositive in and of itself (Appellate Body Report, China – Rare Earths, paras.
5.61 – 5.63). The relationship must be "ascertained through scrutiny of the provisions concerned, read in the
light of their context and object and purpose, with due account being taken of the overall architecture of the
WTO system as a single package of rights and obligations, and any specific provisions that govern or shed light
on the relationship between the provisions of different instruments." (Appellate Body Report, China – Rare
Earths, para. 5.55).
2 Panel Report, Dominican Republic – Safeguard Measures, para. 7.54.
3 Article 2 of the Safeguards Agreement. The preparatory materials to the Safeguards Agreement and
the preamble to the Safeguards Agreement confirm this.

provisions in any covered agreement or agreements cited by the parties to the dispute" 4.
This means that the Panel must address the relevant provisions to the dispute at hand,
including Article XXI(b). The plain and ordinary meaning of the DSU's provisions do not speak
of any exceptions to the application of Articles 7(1) (which set out the Panel’s terms of
reference) and 7(2).
C. Interpretation of Article XXI(b) – the applicable test
6. To the extent that the non -justiciability of a claim under Article XXI(b) relies on an
interpretation that Article XXI(b) is totally self -judging, such an interpretation should not
apply based on the explanation below. First, the word "it" in the phrase "it considers
necessary" clearly refers to a "contracting party". The focus of any scrutiny therefore has to
be from the standpoint of the invoking Member and whether that Member considers the
action to be necessary. This phrase points to the self-judging nature of the assessment and
indicates that a Member is allowed to determine the elements of the chapeau w ith a
significant degree of subjectivity. Second, the assessment of threats to the essential security
interests of a Member and the necessary measures in response involves judgment on the
part of that Member and is dependent on the particular context and c ircumstances of that
Member. There is necessarily a degree of subjectivity in this exercise, and an accompanying
diversity of assessments that has to be respected. Third, there are many areas in the WTO
regime where some margin of appreciation is accepted5.
7. A higher level of deference and a significant margin of appreciation should be accorded to a
Member's chosen level of protection, and its assessment of risk and of the necessity of a
measure taken for the protection of its essential security interests.
8. Notwithstanding the above, Article XXI(b) should not be read as giving a Member entirely
unfettered discretion in invoking this exception. For this exception to be meaningful, a
Member must act in accordance with the standard of good faith as set out in Article 26 of
the Vienna Convention on the Law of Treaties 6 and with the general international law
prohibition of abuse of rights. It is also well accepted that a Member seeking to rely on an
affirmative exception bears the burden of proof. The Member invoking Article XXI would have
to provide its reason(s) for doing so, by minimally explaining its course of action and
invocation of Article XXI, bearing in mind the margin of appreciation to be accorded to
Members on matters involving their essen tial security interests. The extent and degree of
detail required is fact and context specific and will be informed by the specific circumstances
surrounding the invocation, as well as the underlying security and confidentiality
considerations.
9. We have carefully considered the Russia – Traffic in Transit panel's approach in interpreting
Article XXI(b)(iii) in the context of certain prohibitions on goods traffic in transit, and
generally agree with that panel's analysis of Article XXI(b)(iii).
III. EXECUTIVE SUMMARY OF SINGAPORE’S RESPONSES TO PANEL QUESTIONS TO
THIRD PARTIES
A. Response to Question 8
10. There are no provisions in the DSU that support a distinction between justiciable and non -
justiciable matters in relation to the measures that are the subject of the present dispute.

4 Appellate Body Report, Mexico – Taxes on Soft Drinks, para. 49.
5 For example, in the context of the SPS Agreement, the Appellate Body has recognised that "[t]he
determination of the appropriate level of protection… is a prerogative of the Member concerned and not of a
panel or of the Appellate Body" (Appellate Body Report, Australia – Salmon, para. 199). The Appellate Body
also noted, in relation to the necessity of a measure taken for the protection of health under the GATT 1994,
that "… it is undisputed that WTO Members have the right to determine the level of protection of health that
they consider appropriate in a given situation" (Appellate Body Report, EC – Asbestos, para. 168.).
6 Done at Vienna, 23 May 1969, 1155 U.N.T.S. 331; 8 International Legal Materials 679.

B. Response to Question 10
11. We agree with the panel’s statements in Russia –Traffic in Transit that "[g]iven the absence
in the DSU of any special or additional rules of procedure applying to disputes involving
Article XXI of the GATT 1994… [the] invocation of [Article XXI(b)] of the GATT 1994 is within
the Panel’s terms of reference for the purposes of the DSU."7
C. Response to Question 13
12. We agree with the panel’s statements in Russia — Traffic in Transit that "[t]he obligation of
good faith requires that Members not use the exceptions in Article XXI as a means to
circumvent their obligations under the GATT 1994" and that "[i]t is therefore incumbent on
the invoking Member to articulate the essential security interests said to arise from the
emergency in international relations sufficiently enough to demonstrate their veracity"8.
D. Response to Question 14
13. The good faith test is met when a Member demonstrates that it has in good faith, albeit
subjectively, considered, based on information available, that there is a threat to its essential
security interest, and that its chosen action is necess ary for the protection of its security
interest.
E. Response to Question 15
14. Article XXI is an affirmative defence and the invoking Member bears the burden of proof9.
F. Response to Questions 16 and 17
15. The phrase "which it considers" applies to the entire chapeau of Article XXI(b)10.
G. Response to Question 18
16. A panel should consider whether a Member’s invocation of Article XXI is consistent with the
principle of good faith, while recognising the element of self-judgment in Article XXI.
H. Response to Question 19
17. The Member invoking the exception bears the burden to show that it has, in good faith,
considered, based on the information available, that the elements of Article XXI(b) are made
out. The extent and detail required to demonstrate this is fact and context specific.
I. Response to Question 20
18. The subparagraphs to Article XXI(b) are exhaustive of the types of circumstances covered
by the provision. Typically, phrases like "including"11 denote that a list is merely illustrative.
Nothing in Article XXI(b) suggests that the subparagraphs are merely an illustrative list. In
interpreting the circumstances in the subparagraphs, a panel should adopt a contextual
approach.
J. Response to Question 21
19. A nexus between a particular subparagraph and the challenged measure is required. The
determination of that nexus should be done in good faith, taking into account the Member’s
circumstances and concerns.

7 Panel Report, Russia – Traffic in Transit, paras. 7.54 and 7.56.
8 Panel Report, Russia – Traffic in Transit, paras. 7.133 and 7.134.
9 As noted by the panel in Russia – Traffic in Transit, it is "incumbent on the invoking Member to
articulate the essential security interests said to arise from the emergency in international relations sufficiently
enough to demonstrate their veracity." (Panel Report, Russia – Traffic in Transit, para. 7.134.)
10 Panel Report, Russia — Traffic in Transit, paras. 7.130 – 7.133 and 7.146.
11 Panel Report, EC – Approval and Marketing of Biotech Products, para. 4.161.

K. Response to Question 25
20. A panel should consider whether a Member’s invocation of Article XXI is consistent with the
principle of good faith, while recognising the element of self-judgment in Article XXI.
L. Response to Question 26
21. A panel will need to assess if a Member has acted in accordance with the standard of good
faith and with the general international law prohibition on abuse of rights.
M. Response to Question 27
22. Factual evidence is relevant to considering the applicability of the conditions provided in the
subparagraphs of Article XXI(b). The extent and degree of detail required is fact and context
specific.
N. Response to Question 28
23. Subparagraphs (i) to (iii) inform each other as to the overall subject matter and scope of
applicability of Article XXI(b)12.
O. Response to Question 29
24. Subparagraphs of Article XXI(b) are not cumulative in nature13.
P. Response to Question 30
25. It is inadvisable to put forward a label or prescriptive definition of “other emergency in
international relations”. We agree with the panel’s statements in the Russia — Traffic in
Transit panel report that there is a useful "sliding scale" of circumstances that might qualify
as an "emergency in international relations " and could include any circumstances that fall
within the description of "heightened tension or crisis ", or "general instability engulfing or
surrounding a state "14. We also agree that it i s incumbent on the invoking Member to
articulate the essential security interests said to arise from the emergency in international
relations sufficiently enough to demonstrate their veracity 15; and what qualifies as a
sufficient level of articulation wil l depend on the emergency in international relations at
issue16. The Member would also need to demonstrate that its measure is applied in good
faith.
Q. Response to Question 31
26. Both Articles XX17 and XXI(b) are affirmative defences. A Member seeking to rely on either
exception bears the burden of proof. With respect to measures under Article XXI, a higher
level of deference and a significant margin of appreciation should be accorded to the WTO
Member’s chosen level of protection, its assessment of risk, and of the necessity of a
measure taken for the protection of its essential security interests, as compared to those
taken under Article XX. This is because Article XXI(b) contains the additional ph rase "it
considers necessary", which is not present in Article XX.
R. Response to Question 32
27. Article XXI(a) is concerned with a scenario where a Member is asked to furnish information,
the disclosure of which it considers contrary to that Party’s ess ential security interest. In
contrast, Article XXI(b) deals with the situation in which a Member takes actions which it
considers necessary for the protection of its essential security interest. There is an element

12 Panel Report, Russia — Traffic in Transit, para. 7.65, 7.67 and 7.74.
13 Panel Report, Russia – Traffic in Transit, para. 7.68.
14 Panel Report, Russia – Traffic in Transit, para. 7.76.
15 Panel Report, Russia – Traffic in Transit, para. 7.134.
16 Panel Report, Russia – Traffic in Transit, para. 7.135.
17 Appellate Body Report, US – Wool Shirts and Blouses, p. 16 and Appellate Body Report, US –
Shrimps, para. 121; Appellate Body Report, EC – Asbestos, paras. 115 – 116.

of subjectivity in both Article XXI(a) an d Article XXI(b) but the principle of good faith and
the general international law prohibition of abuse of rights applies to both.
S. Response to Question 34
28. See paragraphs 3 and 4 above.
T. Response to Question 36
29. If the Panel determines that the measures are safeguard measures within the meaning of
Article XIX and the Safeguards Agreement, Article XXI of the GATT 1994 does not apply.
U. Response to Question 37
30. The phrase "nothing in this agreement" in Article XXI(b) should be interpreted as referring
to the obligations under the GATT 1994. It should not be interpreted to allow Article XXI(b)
to operate as an exception to the conditions for suspension of GATT obligations under Article
XIX as this would render the strict conditions of Article X IX and the Safeguards Agreement
meaningless.
V. Response to Questions 38 and 39
31. While the references to Article XIX in the Preamble, Articles 1 18 and 11.1(a) of the
Safeguards Agreement reflect a relationship between Article XIX of the GATT and the
Safeguards Agreement, they do not establish any textual basis for applying Article XXI of
the GATT 1994 to the Safeguards Agreement19.
W. Response to Question 40
32. The general interpretative note to Annex 1A of the WTO Agreement indicates that the GATT
1994 and the other agreements are to be considered together 20. Thus, if a conflict were to
exist between a Safeguards Agreement provision and a GATT 1994 provision, the Safeguards
Agreement provision would prevail to the extent of the conflict. Applying t he panel’s
definition of "conflict"21, the justification of a measure under Article XXI that would otherwise
be prohibited under the Safeguards Agreement would not give rise to a "conflict" within the
meaning of the General Interpretative Note, since Arti cle XXI cannot be considered a
permissive obligation. The presumption against conflict should also be borne in mind 22. In
any case, our position is that Article XXI cannot apply as an exception to the Safeguards
Agreement.

18 Article 1 of the Safeguards Agreement provides that the term safeguard measure "shall be
understood to mean those measures provided for in Article XIX of GATT 1994." The Appellate Body stated that
Article 1 of the Safeguards Agreement "suggests that Article XIX continues in full force and effect, and, in fact,
establishes certain prerequisites for the imposition of safeguard measures" (Appellate Body Report, Argentina –
Footwear, para. 83).
19 Panel Report, Thailand – Cigarettes (Philippines) (Article 21.5 – Philippines) supports this
interpretation. The question there was whether Article XX of the GATT applied to the CVA. Similar to the
preamble to the Safeguards Agreement, the preamble to the CVA referred to the Members’ desire to "further
the objectives of the GATT 1994" and recognises "the importance of the provisions of Article VII of GATT 1994
and desir[e] to elaborate rules for their application in order to provide greater uniformity and certainty in their
implementation". The panel found that the language and the title to the CVA reflects a general link between
the CVA and the GATT 1994, but it does not establish any textual link to Article XX of the GATT, and
consequently does not establish any affirmative textual basis for concluding that Article XX applies to the CVA
(paras. 7.748 and 7.749).
20 Appellate Body Report, Brazil – Desiccated Coconut, p. 8.
21 The panel made the following observation on the definition of "conflict" as set out in the General
Interpretative Note, stating that "[i]n light of the wording, the context, the object and the purpose of [the
General Interpretative Note], we consider that it is designed to deal with (i) clashes between obligations
contained in GATT 1994 and obligations contained in agreements listed in Annex 1A, where those obligations
are mutually exclusive in the sense that a Member cannot comply with both obligations at the same time, and
(ii) the situation where a rule in one agreement prohibits what a rule in another agreement explicitly permits"
(Panel Report, EC – Bananas III (Ecuador), para. 7.159).

ANNEX C-10
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TÜRKIYE
1. INTRODUCTION
1.1. This integrated executive summary contains the arguments presented by the Republic of
Turkey (Turkey) in its third-party written submissions, oral statements, and responses to the Panel's
questions in the following disputes parallel to United States – Additional Duties on Steel and
Aluminium (DS564): DS544, 547, 548, 552, 554, and 556.
1.2. Turkey agrees with the complainants in the parallel disputes that the Section 232 measures
imposed by the United States on steel and aluminium articles are safeg uard measures within the
meaning of Article XIX of the GATT 1994 and the Agreement on Safeguards. Moreover, Turkey
believes that the Panels in these disputes should examine the complainants' claims under Article XIX
and the Agreement on Safeguards before addressing the United States' defence under Article XXI.
As Turkey has consistently argued in these disputes as well as in DS564, matters falling under Article
XIX are outside the scope of Article XXI. Put simply, Article XXI does not apply to safeguard measures
and cannot justify violations of WTO safeguards disciplines. The respective scopes of application of
Articles XIX, XX and XXI are mutually exclusive.
1.3. With respect to Article XXI, it is impossible to overstate the systemic importance of this dispute.
The United States' position is that a WTO Member can take any trade -related action that it wishes,
for any protectionist purpose that it wishes, label it as a "national security" measure, invoke allegedly
unlimited discretion, and by doing so escape any and all disciplines of WTO law. This position, if
sustained by the Panel, would create a large loophole within the WTO legal system that would enable
all WTO Members to escape their WTO obligations at will. This would render the rights of other WTO
Members an empty shell, place them entirely at the discretion of an importing Member, and would
reduce the entire multilateral trading system to a nullity.
1.4. It is, therefore, vital that this Panel approaches Article XXI in a manner that preserves the
balance of rights and obligations of the WTO Members under the covered agreements. Turkey fully
supports the need to protect the right of WTO Members to take genuine national security measures,
for which they should enjoy an appropriate margin of deference. But, at the same time, there must
continue to be meaningful WTO disciplines on domestic trade measures. There is no such balance in
the United States' position.
1.5. The United States' entire defence in this dispute is based on the national security exception in
Article XXI(b) of the GATT 1994. The United States' principal argument is that, as soon as the
defendant invokes this provision, a WTO panel must lay down its tools, no matter how WTO -
inconsistent the challenged measure is or how unreasonable the invocation of Article XXI might be.
According to the United States, in these circumstances, a dispute becomes "inherently political in
nature", and, therefore, inappropriate for any review in the WTO.
1.6. Turkey notes that, beyond the fact that its approach to Article XXI is manifestly unreasonable
on substance, the United States' approach to Article XXI is somewhat contradictory in procedural
terms. On the one hand, the United States does not dispute that panels have jurisdiction over such
disputes with in the meaning of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU), and may receive submissions from the parties and third parties. On
the other hand, the United States calls the invocation of Article XXI "non -justiciable" or "self -
judging". The United States argues that each WTO Member has the right to determine, for itself,
what it considers necessary for protecting its essential security interests.
1.7. To Turkey, these two positions taken together constitute an elab orate empty formality. The
Panel has jurisdiction, but cannot effectively exercise any meaningful review. This makes no sense
to Turkey and clearly runs counter to the objective of the WTO dispute settlement system to act as
a central element in providing security and predictability to the multilateral trading system.

1.8. The United States also tries to divert attention from the major loophole in the WTO disciplines
that its approach would create, by arguing that Members can rely on non-violation claims to address
the situation. This, of course, misses the point. WTO Members are entitled to expect WTO-consistent
behaviour by all other WTO Members. Under the approach advocated by the United States, the
boundary between WTO-consistent and WTO-inconsistent behaviour essentially becomes irrelevant.
This cannot be right.
1.9. In Section 2, Turkey summarises its legal arguments regarding the United States' defence
under Article XXI of the GATT 1994, as well as the correct interpretation of this provision. In th is
Section, Turkey also explains that Article XXI cannot serve as a valid exception to "economic
emergencies", like the measures at issue in these disputes. In Section 3, Turkey summarises its
conclusion.
2. THE UNITED STATES' DEFENCE UNDER ARTICLE XXI(B ) OF THE GATT 1994 IS
MISPLACED AND SHOULD BE REJECTED
2.1. The United States' defence under Article XXI has important consequences
2.1. The United States does not engage with the complainants' detailed explanations that the United
States' import measures on steel and aluminium constitute safeguard measures. Rather, the United
States' central argument is that the measures at issue were taken under Article XXI(b), which may
serve as a defence to claims under the Agreement on Safeguards. Therefore, should the Panel agree
that the United States' Article XXI defence fails, it should immediately find in favour of the
complainants, including Turkey.
2.2. The United States' arguments under Article XXI are very generic. First, the United States
invoked Article XXI(b) in general terms, without specifying which sub-paragraph of this provision it
considers to be relevant. In Turkey's view, the Panel could reject the United States' invocation on
this basis alone. A Member invoking an exceptions provision must specif y in detail which particular
part of that provision it is relying on, for instance, a particular sub-paragraph. It would similarly be
insufficient if a WTO Member sought to justify, for instance, an import ban by invoking "Article XX
of the GATT 1994", without specifying which of the sub-paragraphs of Article XX it is relying on. In
the prior disputes where respondents took this approach under Article XX, the Appellate Body found
this defence to be "patently underdeveloped".1
2.3. In addition, the United States provides no facts in support of this defence, for instance, to
argue that the facts at hand reflect an "emergency in international relations" within the meaning of
Article XXI(b)(iii) or to substantiate its implicit assert ion that "essential security interests" of the
United States are at issue. Of course, the United States bears the burden of proof under Article XXI
and must provide both argument and evidence to successfully invoke this provision. Given the
absence of any relevant evidence adduced by the United States, should the Panel reject the United
States' view of the self -judging nature of the entirety of Article XXI(b), it should also immediately
reject the United States' defence.
2.2. The overview of Turkey's interpretation of the chapeau and sub -paragraphs of
Article XXI
2.4. Turkey turns to its views on the correct interpretation of Article XXI of the GATT 1994.
2.5. Article XXI(b) consists of a chapeau and of three sub -paragraphs. The chapeau contains the
phrase "any action which it considers necessary". This phrase confers a margin of discretion on the
invoking Member, in the choice of measures that protect essential security interests. There is also
certain inherent flexibility an d discretion in the articulation of a Member's "essential security
interests", in the light of the nature of the concept of security interests.
2.6. Nevertheless, the discretion that informs the chapeau of Article XXI(b), even if wide, cannot
be boundless.
2.7. First, the term "considers" cannot mean that a Member is entirely free to adopt any measures,
including measures that are manifestly unrelated to any conceivable security interests or that are
manifestly unable to serve any security purpose. In prior decisions of WTO panels and the Appellate

1 Appellate Body Report, Thailand – Cigarettes (Philippines), paras. 178-179.

Body, even very permissive provisions have been interpreted to include, at least, some residual
objective standard.
2.8. As an example, consider Article 3.7 of the DSU, which states that a Member is free to "exercise
its judgment" whether engaging in WTO dispute settlement would be "fruitful". The expression
"exercise its judgment" is, for all practical purposes, synonymous with "consider", and the subject
matter would appear to be naturally suited to very wi de Member discretion. Nevertheless, panels
and the Appellate Body have never considered this provision to grant unfettered discretion to a
Member. Rather, they have emphasized that Members are " largely self-regulating"2 – not entirely
self-regulating – and that Members' judgment "is not entirely unbounded". 3 The "bound" is, for
instance, whether that Member has previously waived its right to resort to a dispute settlement
process, through an explicit and considered decision.4
2.9. Second, by including the term "essential" before "security interests", the drafters clearly
intended to limit the discretion emanating from the phrase "it considers" to situations of particularly
serious matters of national security.5
2.10. Third, Article XXI(b) co ntains three sub -paragraphs that qualify the chapeau. These sub -
paragraphs qualify the measures (action) that can be taken pursuant to the chapeau. This
qualification consists in either setting out a particular subject matter to which those measures must
be related (e.g. fissionable materials or derivates6) or by describing the time period in which those
measures must be taken (time of war or other emergency in international relations7).
2.11. Compliance with the three sub -paragraphs is not left to discr etion of the invoking Member .
These qualifying phrases are open to a fully objective, multilateral review by a WTO panel, pursuant
to the "objective assessment" requirement in Article 11 of the DSU.8 This is, in particular, because
the discretion-granting phrase "which it considers" refers only to the necessity of the measure under
the chapeau, not also to the three sub-paragraphs.
2.12. Turkey believes that its interpretation of the chapeau and the sub-paragraphs of Article XXI(b)
is well grounded in th e principles of treaty interpretation set out in Articles 31 to 33 of the Vienna
Convention. The chapeau and the sub-paragraphs are separate, and impose separate requirements.
In the Spanish language version of Article XXI, this separation is further under scored by a comma
after the chapeau, before the word " relativas", which introduces each of the sub -paragraphs and
drives a further wedge between the chapeau and the three sub-paragraphs.
2.13. Next, some of the internal documents of the United States' delegation from the period of GATT
negotiations, attached as exhibits to the United States' first written submissions, illustrate how
Article XXI would read if the term "considers" indeed were to extend to the sub-paragraphs. It would
read: "which it considers necessary for the protection of its essential security interests and to relate
to …" or "which it may consider to relate to".
2.14. These documents reveal that the United States' delegation members were keenly aware of
the important difference each phrase would have for the operation of Article XXI. The delegation
member who proposed the "to relate to" clause intended precisely to create an "independent clause"
that would make the sub -paragraphs equally "self -judging" as the chapeau. The other delegation
members understood this consequence, and this is precisely why they rejected the proposal . They
instead wished to limit the "consider" discretion to the chapeau and not to permit a "completely open
escape from the Charter" (and the GATT 1947).

2 Appellate Body Report, Peru – Agricultural Products, para. 5.18. Emphasis added.
3 Appellate Body Report, Peru – Agricultural Products, para. 5.19.
4 Appellate Body Report, EC – Bananas III (21.5 II – US), para. 217.
5 Panel Report, Russia — Traffic in Transit, para. 7.130.
6 Article XXI(b)(i).
7 Article XXI(b)(iii).
8 Panel Report, Russia — Traffic in Transit, paras. 7.82, 7.100.

2.15. These internal discussions within the United States' delegation are explained in greater detail
in a comprehensive treatise relied on also by Russia – Traffic in Transit panel.9
2.16. The United States' view is also at odds with the principle of effective treaty interpretation.
Under the United States' "self -judging" approach, there is no purpose to the carefully drafted
language of the three sub-paragraphs.10
2.17. The United States also gives too much credence to the views of some GATT Contracting Parties
that, during various GATT discussions, allegedly endorsed the self -judging nature of Article XXI. In
Russia — Traffic in Transit, the panel found that no common position of GATT and WTO Members on
this issue existed. 11 The views cited by the United States thus do not constitute a subsequent
agreement within the meaning of the Vienna Convention and have no special legal relevance for the
interpretation of Article XXI.
2.18. Similarly, the United States inaccurately relies on the GATT Contracting Parties' Decision in
the 1949 US – Export Restrictions dispute between the United States and Czechoslovakia as a
"subsequent agreement". The subject matter of the Decision was not the interpretation of Article
XXI(b), and it, therefore, cannot be an agreement "bearing specifically" upon the interpretation of
this provision.12 Moreover, the Decision was not taken unanimously or by consensus. Hence, there
was no "agreement" among all Contracting Parties.
2.19. Finally, the United States' "self-judging" theory is also contradicted by the negotiating history.
A consistent theme running through all the negotiating history documents is the recognition by all
intervening delegations that some balance had to be found between, on the one hand, some
reasonable discretion to be afforded to the regulating Member, and, on the other hand, o bjective,
reviewable elements to limit that discretion and prevent it from destroying the entire legal
framework. The debate about how to strike this proper balance is discernible at all phases of the
negotiations, both among Members' delegations and within the United States' delegation itself. It is
simply not credible for the United States to argue that, after these lengthy negotiations about that
important balance, the drafters ultimately opted for a 100 per cent one -sided, no-questions-asked
discretion and a completely self-judging provision.13
2.3. Article XXI of the GATT 1994 does not apply to "economic emergencies"
2.20. In Turkey's view, Article XXI does not apply to the measures at issue in these disputes. These
measures are safeguard measures, which are instead disciplined by WTO safeguard rules.
2.21. Article XXI is one of many exceptions, carve -out provisions, and escape clauses in the GATT
1994. Each of these exceptions, carve -outs and escape clauses addresses distinct matters. This is
important. One of the fundamental flaws of the United States' position is to ignore the fact that
Article XXI does not address emergency situations of an economic nature. The drafters assigned to
Article XIX economic "emergency action" in situations concerning "imports of particular products",
and confined Article XXI to a foreign -policy dimension, in particular to diplomatic crises, military
conflicts, and closely related matters. This was also the conclusion of the panel in Russia – Traffic in
Transit.14
2.22. This distinction between the issues of foreign policy addressed in Article XXI, on the one hand,
and "economic emergencies" addressed by WTO safeguard rules is further reflected in Article 11.1
of the Agreement on Safeguards. This provision draws a distinction between "emergency action[s]
on imports … as set forth in Article XIX of GATT 1994" (Article 11.1(a)), and "measures sought,
taken or maintained by a Member pursuant to provisions of GATT 1994 other than Article XIX "
(Article 11.1(c)). The first category, of course, encompasses safeguard measures, whereas the

9 See Kenneth J. Vandevelde, The First Bilateral Investment Treaties: U.S. Postwar Friendship,
Commerce, and Navigation Treaties, (Oxford University Press 2017), pp. 145-154. Exhibit TUR-4.
10 Appellate Body Report, US – Gasoline, p. 20.
11 See Panel Report, Russia — Traffic in Transit, para. 7.80, Appendix.
12 See, inter alia, Appellate Body Report, US – Clove Cigarettes, para. 265.
13 See, inter alia, Second Session of the Preparatory Committee of the United Nations Conference on
Trade and Employment, Verbatim Report, E/PC/T/A/PV/33, 24 July 1947, pp. 20-21.
14 Panel Report, Russia — Traffic in Transit, paras. 7.76 and 7.133.

second category refers to measures other than safeguard measures, for exam ple, Article XXI
measures.
2.23. This distinction is important because Article 11 ties each category to different disciplines. For
safeguard measures, Article 11.1(a) stipulates that a Member shall not "take or seek" these
measures, unless they conform w ith the provisions of Article XIX applied in accordance with the
Agreement on Safeguards. In contrast, for other measures (including those protecting national
security), Article 11.1(c) establishes "provision[s] of GATT 1994 other than Article XIX" as the legal
benchmark of WTO consistency. It is difficult to imagine how these clearly demarcated two sets of
disciplines could apply to a single measure. Equally, it is not clear why the drafters would distinguish
between these two categories of measures, each subject to a separate set of disciplines, if a measure
could in any event fall under both categories.
2.24. Whether a measure falls under the scope of Articles 11.1(a) or 11.1(c) must be determined
objectively by analysing the design, structure and expected operation of the measure, in particular
whether the measure presents the constituent features of a safeguard measure within the meaning
of Article XIX, as clarified by the Appellate Body in Indonesia — Iron or Steel Products .15 This
objective assessment is required by Article 11 of the DSU.
3. CONCLUSION
3.1. For the above reasons, Turkey considers that:
• The measures at issue fall under Article XIX and the Agreement on Safeguards;
• The Panel should begin its analysis with the claims under Article XIX and the Agreement
on Safeguards, rather than with Article XXI;
• In any event, the United States' defence under Article XXI should be rejected.

15 Appellate Body Report, Indonesia — Iron or Steel Products, para. 5.60.

ANNEX C-11
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE*
1. INTRODUCTION
1. Mr. Chairperson, distinguished Members of the Panel, Ukraine welcomes the opportunity to
express its views to the Panel as a Third Party in the current proceedings.
2. Ukraine has a systemic interest in a proper and consistent interpretation of the provisions of
the World Trade Organization (“WTO”) covered agreements, therefore in its oral statement Ukraine
is not commenting on the merits of the claims and the defences raised by the parties to this dispute,
but rather focuses on some key issues relating to the order of analyses and application of Article XXI
of the General Agreement on Tariffs and Trade 1994 (“GATT 1994”).
2. JURISDICTIONAL ISSUES OF ARTICLE XXI OF THE GATT 1994
3. The United States in its first written submissions or oral statements does not address any of
the claims raised by the complainants. The United States focuses only on Article XXI(b) of the GATT
1994 stating that it is self-judging and its invocation is non-justiciable.
4. The United States submits that the adjustment measures on imports of steel and aluminium
constitute national security action justified under Article XXI of the GATT 1994. In the United States’
view, the measures at issue cannot be reviewed by this Panel which should limit its findings to noting
that the United States has invoked Article XXI(b) of the GATT 1994, given that Article XXI(b) is self-
judging.
5. Ukraine believes that the useful guidance for the Panel can be found in the Understanding on
rules and procedures governing the settlement of disputes (“DSU”). Article 7.2 of the DSU states
that “panels shall address the relevant provisions in any covered agreement or agreements cited by
the parties to the dispute” in order to make “an objective assessment” of the case under Article 11
of the DSU.
6. Ukraine is of the opinion that jurisdictional question under Article XXI of the GATT 1994 should
not be a matter of a panel’s analysis in any further disputes . Without repetition of the find ings in
Russia – Traffic in Transit, Ukraine believes that a panel may interpret Article XXI(b) of the GATT
1994 and review the reliance on this provision. It means that Article XXI(b) of the GATT 1994 is
justiciable in the same manner as any other provision of the WTO covered agreements.
7. Ukraine would like to emphasise that the Panel in Russia – Traffic in Transit made a very
important and welcome contribution by rejecting arguments that the panel has no jurisdiction to
review invocation of Article XXI of the GATT 1994 and therefore by confirming that Article XXI(b)(iii)
is within the Panel’s terms of reference for the purposes of the DSU. 1
8. There is therefore no need for a Panel to examine the issue of justiciability of Article XXI(b)(iii)
of the GATT 1994 not only in this particula r case, but in general. In Ukraine’s view, this conclusion
is constant.
3. STANDARD OF REVIEW
9. Ukraine would like to present its views on the proper order of analysis in reviewing the United
States’ reliance on “security exceptions” provision.
10. Taking into account the special nature of “security exceptions” provision, Ukraine wishes to
emphasize that the fact that the text of Article XXI(b) expressly states that it is for a Member to

* Ukraine requested that its Oral Statement is used as its integrated executive summary.
1 Panel Report, Russia – Traffic in Transit, paras. 7.56 and 7.104.

decide what action it considers necessary for protecting its essential security interests does not mean
that a Member enjoys total discretion.
11. In Ukraine’s view, a panel has to examine whether (i) the interests or reasons advanced by a
defendant for imposing the measures fall within the scope of the phrase “its essential security
interests”; and whether (ii) the measures are directed at safeguarding a defendant Member’s
security interests, meaning that there is a rational relationship between the action taken and the
protection of the essential security interest at issue.
12. That means that a defending Member must show and a panel must review that, taking into
account the structure, content and d esign of the measure, there is a rational relationship between
the action taken and the protection of the essential security interest at issue.
13. Due to the exceptional features of the disputes involving the “security exceptions” provisions,
Ukraine notes that it is important that the Panel considers each invocation carefully, in light of the
particular circumstances of the disputes before it.
4. CONCLUSION
14. This concludes our oral statement. Ukraine thanks the Panel for its consideration of Ukraine’s
views.