UKRAINE – DEFINITIVE SAFEGUARD MEASURES ON CERTAIN PASSENGER CARS REPORT OF THE PANEL
Document: Addendum
Date: 26 June 2015
Document codes: WT/DS468/R/Add.1; WT/DS468/R.
Complainant: Japan
Respondent: Ukraine
Third parties: EU, India, South Korea, Russia, Turkey, Australia, U.S.
Dispute stage: Panel
Agreements cited: Art. 12.1, 12.2, 12.3, 12.5, 8.1, 3.1, 4.2(c), 2.1, 11.1(a), 5.1, 7.1, 7.4, 4.2(a), 4.2(b), 4.1(a), 4.1(b)  SafeguardsArt. X:3(a), XIX:1, II:1(b)  GATT 1994

UKRAINE – DEFINITIVE SAFEGUARD MEASURES ON
CERTAIN PASSENGER CARS
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 A-2
Annex A-2 Additional Working Procedures concerning business confidential information A-7
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of Japan B-2
Annex B-2 Integrated executive summary of the arguments of Ukraine B-19
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Australia C-2
Annex C-2 Integrated executive summary of the arguments of the European Union C-5
Annex C-3 Oral statement of Korea, Republic of C-10
Annex C-4 Integrated executive summary of the arguments of Turkey C-12
Annex C-5 Integrated executive summary of the arguments of the United States C-16

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ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel A-2
Annex A-2 Additional Working Procedures concerning business confidential information A-7

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ANNEX A-1
WORKING PROCEDURES OF THE PANEL
Adopted on 29 July 2014
1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on Rules
and Procedures Governing the Settlement of Disput es (DSU). In addition, the following Working
Procedures shall apply.
General

2. The deliberations of the Panel and the docume nts submitted to it shall be kept confidential.
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter
"party") from disclosing statements of its own positions to the public. Members shall treat as
confidential information submitted to the Panel by another Member which the submitting Member
has designated as confidential. Where a party submits a confidential version of its written
submissions to the Panel, it shall also, upon request of a Member, provide a non-confidential
summary of the information contained in its submissions that could be disclosed to the public.
Upon indication from either party that it shall provide information that requires protection
additional to that provided for under these Work ing Procedures, the Panel may, after consultation
with the parties, adopt appropriate additional procedures. Such indication shall be given at the
latest two weeks prior to the relevant information being provided.
3. The Panel shall meet in closed session. The parties, and Members having notified their interest
in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU (hereafter
"third parties"), shall be present at the meetings only when invited by the Panel to appear before
it.
4. Each party and third party has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and third party shall have the responsibility for all
members of its own delegation and shall ensure th a t e a c h m e m b e r o f s u c h d e l e g a t i o n a c t s i n
accordance with the DSU and these Working Procedures, particularly with regard to the
confidentiality of the proceedings.
Submissions

5. Before the first substantive meeting of the Panel with the parties, each party shall submit a
written submission in which it presents the facts of the case and its arguments, in accordance with
the timetable adopted by the Panel. Each party sha ll also submit to the Panel, prior to the second
substantive meeting of the Panel, a written rebuttal, in accordance with the timetable adopted by
the Panel.
6. A party shall submit any request for a preliminary ruling at the earliest possible opportunity
and in any event no later than in its first written submission to the Panel. If Japan requests such a
ruling, Ukraine shall submit its response to the request in its first written submission. If Ukraine
requests such a ruling, Japan shall submit its response to the request prior to the first substantive
meeting of the Panel, at a time to be determined by the Panel in light of the request. Exceptions to
this procedure shall be granted upon a showing of good cause.
7. Each party shall submit all factual evidence to the Panel no later than during the first
substantive meeting, except with respect to evid ence necessary for purposes of rebuttal, answers
to questions or comments on answers provided by the other party. Exceptions to this procedure
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel
shall accord the other party a period of time for comment, as appropriate, on any new factual
evidence submitted after the first substantive meeting.

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8. Where the original language of exhibits is not a WTO working language, the submitting party or
third party shall submit a translation into the WTO working language of the submission at the
same time. The Panel may grant reasonable extensions of time for the translation of such exhibits
upon a showing of good cause. Any objection as to the accuracy of a translation should be raised
promptly in writing, no later than the next filing or meeting (whichever occurs earlier) following
the submission which contains the translation in question. Any objection shall be accompanied by a
detailed explanation of the grounds of objection and an alternative translation.
9. In order to facilitate the 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 attached as
Annex 1, to the extent that each party and third party considers that it is practical to do so.
10. To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute. For example, exhibits subm itted by Japan could be numbered JPN-1, JPN-2,
etc. If the last exhibit in connection with the first submission was numbered JPN-5, the first exhibit
of the next submission thus would be numbered JPN-6.
Questions

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

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

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If Ukraine chooses not to avail itself of that right, the Panel shall invite Japan to present
its opening statement first. Before each party takes the floor, it shall provide the Panel
and other participants at the meeting with a provisional written version of its statement.
In the event that interpretation is needed, ea ch party shall provide additional copies for
the interpreters, through the Panel Secretary. Each party shall make available to the
Panel and the other party the final version of its opening statement as well as its closing
statement, if any, preferably at the end of the meeting, and in any event no later than
5.00 p.m. of the first working day following the meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask each other questions or make comments, through the Panel. Each party shall then
have an opportunity to answer these questions orally. Each party shall send in writing,
within a timeframe to be determined by the Panel, any questions to the other party to
which it wishes to receive a response in writing. Each party shall be invited to respond in
writing to the other party's written questions within a deadline to be determined by the
Panel.
c. The Panel may subsequently pose questions to the parties. Each party shall then have an
opportunity to answer these questions orally. The Panel shall send in writing, within a
timeframe to be determined by it, any questions to the parties to which it wishes to
receive a response in writing. Each party shall be invited to respond in writing to such
questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with the party that presented its opening statement
first, presenting its closing statement first.
Third parties

15. The Panel shall invite each third party to tr ansmit to the Panel a written submission prior to
the first substantive meeting of the Panel with the parties, in accordance with the timetable
adopted by the Panel.
16. Each third party shall also be invited to present its views orally during a session of this first
substantive meeting, set aside for that purpose. Ea ch third party shall provide to the Panel the list
of members of its delegation in advance of this session and no later than 5.00 p.m. the previous
working day.
17. The third-party session shall be conducted as follows:
a. All third parties may be present during the entirety of this session.
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third
parties present at the third-party session and intending to present their views orally at
that session, shall provide the Panel, the parties and other third-parties with provisional
written versions of their statements before they take the floor. Third parties shall make
available to the Panel, the parties and other third parties the final versions of their
statements, preferably at the end of the session, and in any event no later than
5.00 p.m. of the first working day following the session.
c. After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to ask the third parties questions for clarification on any
matter raised in the third parties' submissions or statements. Each party shall send in
writing, within a timeframe to be determined by the Panel, any questions to a third party
to which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to these questions within a deadline to be determined by the Panel.
d. The Panel may subsequently pose questions to the third parties. Each third party shall
then have an opportunity to answer these questions orally. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to the third parties to

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which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to such questions within a deadline to be determined by the Panel.
Descriptive part

18. The description of the arguments of the parties and third parties in the descriptive part of the
Panel report shall consist of executive summaries provided by the parties and third parties, which
shall be annexed as addenda to the report. These executive summaries shall not in any way serve
as a substitute for the submissions of the parties and third parties in the Panel's examination of
the case.
19. Each party shall submit an integrated executive summary of the facts and arguments as
presented to the Panel in its written submissions and oral statements, in accordance with the
timetable adopted by the Panel. This summary may also include a summary of responses to
questions. The integrated executive summary sh all not exceed 30 pages. The Panel will not
summarize in the descriptive part of its report, or annex to its report, the parties' responses to
questions.
20. Each third party shall submit an executive summary of its arguments as presented in its
written submission and statement in accordance with the timetable adopted by the Panel. This
summary may also include a summary of response s to questions, where relevant. The executive
summary to be provided by each third party shall not exceed 6 pages.
Interim review

21. Following issuance of the 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.
22. In the event that no further meeting with the Panel is requested, each party may submit
written comments on the other party's written request for review, in accordance with the timetable
adopted by the Panel. Such comments shall be limited to commenting on the other party's written
request for review.
23. The interim report, as well as the final report prior to its official circulation, shall be kept
strictly confidential and shall not be disclosed.
Service of documents

24. The following procedures regarding service of documents shall apply:
a. Each party and third party shall submit all do cuments to the Panel by filing them with
the DS Registry (office No. 2047).
b. Each party and third party shall file four paper copies of all documents it submits to the
Panel, except for exhibits and executive summaries submitted in accordance with
paragraphs 19 and 20. Exhibits may be filed in four copies on CD-ROM or DVD and two
paper copies. Executive summaries may be filed in one single paper copy. The
DS Registrar shall stamp the filed documents with the date and time of the filing. The
paper version shall constitute the official version for the purposes of the record of the
dispute.
c. Each party and third party shall also provide an electronic copy of all documents it
submits to the Panel at the same time as the paper versions, preferably in Microsoft
Word format, either on a CD-ROM, a DVD or as an e-mail attachment. If the electronic
copy is provided by e-mail, it should be addressed to DSRegistry@wto.org, with a copy
to xxxxx.xxxxx@wto.org and such other WTO Secretariat staff as may be notified to
parties and third parties. If a CD-ROM or DVD is provided, it shall be filed with the
DS Registry.

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d. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in addition, serve on all third parties its written submissions in advance
of the first substantive meeting with the Panel. Each third party shall serve any
document submitted to the Panel directly on the parties and all other third parties. Each
party and third party shall confirm, in writing, that copies have been served as required
at the time it provides each document to the Panel.
e. Each party and third party shall file its docu ments with the DS Registry and serve copies
on the other party (and third parties where appropriate) by 5.00 p.m. (Geneva time) on
the due dates established by the Panel. A party or third party may submit its documents
to another party or third party in electronic format only, subject to the recipient party or
third party's prior written approval and provided that the Panel Secretary is notified.
f. The Panel shall provide the parties with an electronic version of the descriptive part, the
interim report and the final report, as well as of other documents as appropriate. When
the Panel transmits to the parties or third parties both paper and electronic versions of a
document, the paper version shall constitute the official version for the purposes of the
record of the dispute.
25. The Panel reserves the right to modify these procedures as necessary, after consultation with
the parties.

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ANNEX A-2
ADDITIONAL WORKING PROCEDURES CONCERNING
BUSINESS CONFIDENTIAL INFORMATION
Adopted on 6 August 2014
1. These procedures apply to any business confid ential information ("BCI") that a party wishes to
submit to the Panel. For the purposes of these pr ocedures, BCI is defined as any information that
has been designated as such by the party submitti ng the information, that is not available in the
public domain, and the release of which would seriously prejudice an essential interest of the
person or entity that supplied the information to the party. In this regard, BCI shall include
information that was previously submitted to the investigating authorities of Ukraine, the Ministry
of Economic Development and Trade's Department for WTO Cooperation and Trade Remedies, as
BCI in the safeguard investigation at issue in this dispute. However, these procedures do not apply
to information that is available in the public domain. These procedures do not apply to any BCI if
the person who provided the information in the co urse of the aforementioned investigation agrees
in writing to make the information publicly available.
2. No person may have access to BCI except a member of the Panel or the WTO Secretariat, an
employee of a party or third party, and an outside advisor acting on behalf of a party or third party
for the purposes of this dispute. However, an outs ide advisor is not permitted access to BCI if that
advisor is an officer or employee of an enterprise engaged in the production, export, or import of
the products that were the subject of the investigation at issue in this dispute.
3. A party or third party having access to BCI shall treat it as confidential, i.e. shall not disclose
that information other than to those persons authorized to have access to it pursuant to these
procedures. Each party and third party shall have responsibility in this regard for its employees as
well as any outside advisors used for the purpos es of this dispute. BCI obtained under these
procedures may be used only for the purpose of providing information and argumentation in this
dispute and for no other purpose.
4. The party submitting BCI shall mark the cove r and/or first page of the document containing
BCI, and each page of the document, to indicate the presence of such information. The specific
information in question shall be placed between double brackets, as follows: [[xx,xxx.xx]]. The
first page or cover of the document shall state "Contains business confidential information on
pages xxxxxx", and each page of the document shall contain the notice "Contains Business
Confidential Information" at the top of the page. In case of exhibits, the party submitting BCI in
the form of an Exhibit shall mark it as (BCI) next to the exhibit number (e.g. Exhibit UKR-1 (BCI)).
Should the party submit specific BCI within a document which is considered to be public, the
specific information in question shall be placed between double brackets, as follows:
[[xx,xxx.xx]]".
5. Any BCI that is submitted in binary-encoded form shall be clearly marked with the statement
"Business Confidential Information" on a label on the storage medium, and clearly marked with the
statement "Business Confidential Information" in the binary-encoded files.
6. In the case of an oral statement containi ng BCI, the party or third party making such a
statement shall inform the Panel before making it that the statement will contain BCI, and the
Panel will ensure that only persons authorized to have access to BCI pursuant to these procedures
are in the room to hear that statement.
7. If a party considers that information submitted by the other party should have been designated
as BCI and it objects to such submission withou t BCI designation, it shall forthwith bring this
objection to the attention of the Panel, the other party, and, where relevant, the third parties. The
Panel shall deal with the objection, as appropriate. The same procedure shall be followed if a party
considers that information submitted by the other party with the notice "Contains Business
Confidential Information" should not be designated as BCI.

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8. The parties, third parties, the Panel, the WTO Secretariat, and any others who have access to
documents containing BCI under the terms of thes e Additional Working Procedures shall store all
documents containing BCI so as to prevent unauthorized access to such information.
9. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized
under these procedures to have access to BCI. The Panel may, however, make statements of
conclusion drawn from such information. Before the Panel circulates its final report to the
Members, the Panel will give each party an opportun ity to review the report to ensure that it does
not disclose any information that the party has designated as BCI.
10. If (a) pursuant to Article 16.4 of the DSU, th e Panel report is adopted by the DSB, or the DSB
decides by consensus not to adopt the Panel report , (b) pursuant to Article 12.12 of the DSU, the
authority for establishment of the Panel lapses, or (c) pursuant to Article 3.6 of the DSU, a
mutually satisfactory solution is notified to the DSB before the Panel completes its task, within a
period to be fixed by the Panel, each party and third party shall return all documents (including
electronic material and photocopies) containing BCI to the party that submitted such documents,
or certify in writing to the Panel and the other party (or the parties, in the case of a third party
returning such documents) that all such documents (including electronic material and photocopies)
have been destroyed, consistent with the party's record-keeping obligations under its domestic
laws. The Panel and the WTO Secretariat shall likewise return all such documents or certify to the
parties that all such documents have been destroyed. The WTO Secretariat shall, however, have
the right to retain one copy of each of the docu ments containing BCI for the archives of the WTO
or for transmission to the Appellate Body in accordance with paragraph 11 below.
11. If a party formally notifies the DSB of its decision to appeal pursuant to Article 16.4 of the
DSU, the WTO Secretariat will inform the Appellate Body of these procedures and will transmit to
the Appellate Body any BCI governed by these pr ocedures as part of the record, including any
submissions containing information designated as BCI under these working procedures. Such
transmission shall occur separately from the rest of the Panel record, to the extent possible. In the
event of an appeal, the Panel and the WTO Secretariat shall return all documents (including
electronic material and photocopies) containing BCI to the party that submitted such documents,
or certify to the parties that all such documents (including electronic material and photocopies)
have been destroyed, except as otherwise provided above. Following the completion or withdrawal
of an appeal, the parties and third parties shall promptly return all such documents or certify to
the parties that all such documents have been destroyed, taking account of any applicable
procedures adopted by the Appellate Body.
12. At the request of a party, the Panel may a pply these working procedures or an amended form
of these working procedures to protect informat ion that does not fall within the scope of the
information set out in paragraph 1. The Panel may, with the consent of the parties, waive any part
of these procedures.

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ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of Japan B-2
Annex B-2 Integrated executive summary of the arguments of Ukraine B-19

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ANNEX B-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
1. INTRODUCTION
1. Japan has initiated the present proceedings in order to demonstrate that the safeguard
measures imposed by Ukraine manifestly violate various procedural and substantive requirements
under the Agreement on Safeguards and Article XIX of the General Agreement on Tariffs and
Trade ("GATT") 1994. First, the competent authorities imposed the safeguard measures in
fundamental misunderstanding of the core requirements for their application and, in particular, the
logical connection between them. Second, Ukraine failed to conduct a careful and thorough
examination of the facts as reflected in the published report. Third, it violated a number of
procedural requirements under the GATT 1994 and the Agreement on Safeguards.
2. THE APPLICABLE STANDARD OF REVIEW
2. First, Japan submits that the objective assessment of the matter at hand pursuant to
Article 11 of the DSU requires the Panel to exam ine whether the conclusions and analysis of the
competent authorities are reasoned and adequate by reference to their published report within the
meaning of Articles 3.1 and 4.2(c) of the Agreement on Safeguards.
1 This is in the present case
the Notice of 14 March 2013. Any explanations in other documents, such as the Key Findings or
Ukraine's written submissions, are not relevant for this assessment.
3. In the course of the proceedings Ukraine appeared to argue that the Key Findings are part of
the published report. However, the word "publish" in Articles 3.1 and 4.2(c) must be interpreted as
meaning "to make generally available through an appropriate medium", rather than simply
"making publicly available".
2 A document, such as the Key Findings, which has only been provided
to interested parties, cannot be regarded as being "published" within the meaning of Article 3.1. It
is even doubtful whether the Key Findings can be said to have been "made publicly available",
since they were only sent to the representatives of the affected exporting countries and thus, not
even to all interested parties. The Key Findings were not explicitly referred to in the Notice of
14 March 2013 either. There is no evidence that clarifies the relationship with the Key Findings and
"a report and materials" mentioned in the Notice of 14 March 2013 and so Ukraine's allegation that
the Key Findings were a non-confidential extract from the report of the Ministry is irrelevant.
4. Thus, Japan considers that the Panel should limit its assessment to the only published report
in this case, that is the Notice of 14 March 2013. However, even by reference to the Key Findings,
the explanations given by the authorities were not reasoned and adequate.
5. Second, Japan notes that, in its first written submission Ukraine included information on the
imports and the injury factors from unidentified documents and developed ex post explanations or
analyses on various issues, none of which can be found in the Notice of 14 March 2013 or in the
Key Findings. Such ex post data cannot be used a posteriori to explain determinations made
during the investigation and to justify the application of the safeguard measures.
6. Moreover, the Panel may take into account the evidence on the record of the investigation
but only to assess the complexities of the fact s of the case, examine whether there were other
alternative explanations and ultimately determine whether the explanation provided in the
published report is reasoned and adequate.
3 The Key Findings, as part of the record of the

1 Appellate Body Report, US – Steel Safeguards, para. 299.
2 Panel Report, Chile – Price Band System, para. 7.128.
3 Appellate Body Report, US – Lamb, paras. 105-106, and Appellate Body Report, US – Tyres (China),
para. 123.

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investigation, may therefore be useful to the Pa nel's examination as to whether the conclusions
reached by the authorities in their published report are reasoned and adequate. For instance, the
Key Findings confirm that other factors causing injury had been identified during the investigation
but were not analysed by the authorities in their published report.
7. Third, to the extent that the Panel finds that the report of the competent authorities fails to
provide a reasoned and adequate explanation of the authorities' determinations, these
determinations should be found inconsistent with the specific requirements of the relevant
provisions of the Agreement on Safeguards, in particular its Articles 2 and 4.
4
3. LEGAL CLAIMS: SUBSTANTIVE REQUIREMENTS UNDER ARTICLE XIX OF THE GATT
1994 AND THE AGREEMENT ON SAFEGUARDS
8. Japan submits that Ukraine failed to make proper determinations concerning the two
circumstances, namely the unforeseen developments and the effect of the obligations incurred
under the GATT 1994, and the three conditions, namely an increase in imports, a serious injury or
threat thereof of the domestic industry and a caus al link between the increase in imports and the
serious injury (or threat thereof), that must be met before a safeguard measure can be applied in
accordance with Article XIX:1(a) of the GATT 1994 the Agreement on Safeguards.
3.1 Ukraine violated Articles 3.1 and 4.2(c) of the Agreement on Safeguards
9. First, Japan argues that Ukraine violated Article 3. 1, last sentence, and Article 4.2(c) of the
Agreement on Safeguards since the Notice of 14 March 2013, i.e. the "published report", does not
set forth the competent authorities' findings and reasoned conclusions reached on all pertinent
issues of fact and law and does not contain a detailed analysis of the case, as well as a
demonstration of the relevance of the factors examined with respect to various issues.
10. The failure of the competent authorities to ad equately address in the published report each
pertinent issue of fact and law violates their obligation under Article 3.1, last sentence to give an
account of a judgement or statement reached in a logical manner or expressed in a logical form,
distinctly or in detail.
5 Article 4.2(c) is an elaboration of this requirement. 6 The absence of such
"reasoned and adequate explanation" in the published report with regard to any relevant issue of
law or fact entails a violation of Articles 2 and 4 of the Agreement on Safeguards.
7
11. Furthermore, Ukraine failed to publish its report and its detailed analysis "promptly": the
temporal parameter regulating the Article 3.1 pub lication requirement that has to be examined by
reference to the time of conclusion of the invest igation, i.e. at the time of the determinations. 8
Since Ukraine's decision on the application of the safeguard measures was taken on 28 April 2012,
a publication of its report in the form of a Notice one year later cannot be viewed as "prompt" and
therefore constitutes a violation of Articles 3.1 and 4.2(c) of the Agreement on Safeguards.
12. Finally, Ukraine's failure cannot be remedied by its claim of confidentiality. Information "by
nature confidential" in the meaning of Article 3.2 of the Agreement on Safeguards refers to data
confidential by reason of its content, in most cases business-sensitive information.
9 Also,
"information" means data and/or evidence that is submitted by a party to the investigation or
collected by the investigating authorities. Thus, Article 3.2 cannot be invoked in relation to entire
reports, documents or analyses for the sole reason that they were issued by the authorities or
designated as confidential by the Government.

4 Appellate Body Report, US – Steel Safeguards, para. 302.
5 Appellate Body Report, US – Steel Safeguards, para. 287.
6 Appellate Body Report, US – Steel Safeguards, para. 289.
7 Appellate Body Report, US – Lamb, para. 107.
8 European Union's third-party response to Panel question No. 12, para. 17.
9 Appellate Body Report, EC – Fasteners, para. 536, and Panel Report, US – Wheat Gluten, para. 8.24.

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13. In any event, neither the protection of confidential information nor Ukraine's domestic law,
notably Article 12(3) thereof, can dispense the authorities from the obligation to provide a
reasoned and adequate explanation of how the facts support their conclusions in a published
report.
10
14. Second, Japan submits that Ukraine failed to conduct an investigation as required by
Article 3.1, in particular, by failing to "seek ou t pertinent information", and to provide appropriate
means through which Japan could present evidence and its views.
15. Japan observes that the meaning and scope of the obligation to carry out an "investigation"
under Article 3.1, first sentence should be determined in light of its broader context, in particular
Articles 2.1 and 4.2, as well as the urgent nature of the safeguard measures.
16. Article 3.1, second and third sentences set forth those investigative steps that the
competent authorities must include in order to seek out pertinent information.
11 Moreover, in
accordance with Article 4.2(a) as part of thei r "investigation" the competent authorities "must
actively seek out pertinent information" 12 about the recent past and must evaluate "all relevant
factors of an objective and quantifiable nature having bearing on the situation of that industry".
The use of the present tense in Article 2.1 indicate s not only that the increase in imports must be
both sudden and recent, but also that the entire investigation period should be the recent past.
13
Similarly with respect to serious injury, Article 4.2(a) refers to the evaluation of all factors "having
a bearing" on the situation of the industry an d for causation, Article 4.2(b) refers to the
demonstration of the "existence" of a causal link and the exclusion of other factors which are also
"causing injury." The use of the present tense further supports the need for the determination to
be based on the recent past.
14
17. As for the urgent nature of the safeguard measures, these are emergency actions which, if
justified, should be applied immediately. The remedy is in itself extraordinary because it involves
the suspension of WTO obligations or withdrawal of concessions, and does not depend upon
"unfair" trade actions.
15 Situations arising in the distant past do not deserve an urgent response
and do not justify the adoption of "emergency" measures.
18. In light of the above legal standard, Japan argues that Ukraine failed to conduct a proper
"investigation" as required by Article 3.1, since it failed to seek out pertinent information for the
most recent period prior to application of the safeguard measures in April 2013, i.e. the period
2011 – 2012.
19. The context of Articles 3.1 and 4.2(c) cl early shows that the obligation to conduct an
"investigation" requires a "careful study" of recent data. If there is a significant delay between the
end of the period of investigation, the determinations and the application of the safeguard
measures, it would no longer be possible to presume that the conditions required in order to apply
the safeguard measures, i.e. that the imports are increasing and that current injury or threat
thereof exists, are still fulfilled. Safeguard measures must be based on an investigation that
determines the existence of recent "increased imports" and the existence of "serious injury".
20. It follows that Ukraine had the obligation under Article 3.1 to actively seek out relevant
information in order to ensure that there was a sufficiently relevant nexus between the data
examined and the determinations of "increased imports" and "serious injury".
21. Finally, Japan claims that Ukraine did not provide appropriate means through which Japan
could present evidence and its views and the opport unity to respond to the presentations of other

10 Panel Report, US – Steel Safeguards, para. 10.275.
11 Appellate Body Report, US – Wheat Gluten, para. 54.
12 Appellate Body Report, US – Wheat Gluten, para. 53.
13 Appellate Body Report, Argentina – Footwear (EC), para. 130 and fn. 130.
14 Panel Report, US – Wheat Gluten, para. 8.81.
15 Appellate Body Report Argentina – Footwear (EC), paras. 93-94.

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parties. Very few and strictly procedural communications were sent by Ukraine to Japan during the
investigation. Moreover, given the opaque and contradictory requirements in Ukraine's domestic
law, Ukraine failed to ensure that the partie s did have meaningful opportunities to present
evidence, to submit their views and to respond to the presentations of other parties in accordance
with Article 3.1 of the Agreement on Safeguards.
22. As to the March 2012 meeting, Japan was not provided with a meaningful opportunity to
present evidence and its views given the very limit ed information concerning the elements of the
investigation that had been provided beforehand and in view of the time constraints of the
hearing.
3.2 Ukraine violated Article XIX:1(a) of the GATT 1994 and Articles 3.1, 4.2(c) and
11.1(a) of the Agreement on Safeguards with respect to its determination on
unforeseen developments
23. First, Japan claims that Ukraine violated Article XIX:1(a) of the GATT 1994 and
Article 11.1(a) of the Agreement on Safeguards because it failed to establish the existence of
"unforeseen developments" – a legal requirement which must be demonstrated "as a matter of
fact" in order for a safeguard measure to be applied lawfully.
16
24. The Agreement on Safeguards and Article XIX of the GATT 1994 are to be considered in
conjunction and any safeguard measure must be in conformity with both. 17 Furthermore, a panel
would not be in a position to assess objectively the compliance with the prerequisites that must be
present before a safeguard measure can be applied, if the competent authorities are not required
to provide a "reasoned and adequate explanation" of how the facts support the determination of
those prerequisites, including "unforeseen developments".
18 Therefore, the existence of unforeseen
developments must logically be demonstrated before the safeguard measure is applied and it is
the published report that must offer an explanation as to why any identified changes could be
regarded as unforeseen developments.
19
25. Ukraine failed to demonstrate this. The sole reference to "unforeseen developments" in the
Notice of 14 March 2013 and in the Key Findings is the increase in imports. However, the fact that
the increase in imports must be the result of unforeseen developments necessarily means that
they are two distinct things.
20
26. It was only in Ukraine's first written submission that it claimed for the first time that the
"global economic crisis" was the unforeseen development. However, any identification of
"unforeseen developments" after the imposition of the measure cannot lead to the consistency of
the safeguard measures with Article XIX:1(a) of the GATT 1994.
27. Second, Ukraine failed to establish a logical connection between the alleged unforeseen
developments and the increase in imports, alth ough the competent authorities are required by
Article XIX:1 to demonstrate that the unforeseen developments have "resulted" in increased
imports.
21 The Notice of 14 March 2013 and the Key Findings provide no such explanation.
28. Ukraine appears to argue in its first written submission that the tariff reduction made to
implement its tariff concessions resulted in an increase in imports, which coincided with the
unforeseen development. However, the tariff reduction cannot be an "unforeseen development" at
the time of Ukraine's accession to the WTO.

16 Appellate Body Report, US – Lamb, para. 72.
17 Appellate Body Report, Argentina – Footwear (EC), para. 84.
18 Appellate Body Report, US – Steel Safeguards, para. 298.
19 Appellate Body Report, US – Lamb, para. 73.
20 Panel Report, Argentina – Preserved Peaches, para. 7.17.
21 Appellate Body Report, US – Steel Safeguards, para. 316.

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29. Even if the "global economic crisis" had been recognised by the authorities as the
"unforeseen development", quod non, it must still be demonstrated that the crisis caused a change
in the competitive relationship between imported and domestic products to the detriment of the
latter, thereby resulting in a sharp and sudden increase in imports. Ukraine does not demonstrate
such "logical connection". In fact, the contraction in demand resulting from the global crisis cannot
constitute the reason why imports increased in relative terms during 2010.
30. But even assuming that the global economic crisis may have reduced the demand for
domestic products more sharply than for imported products, thereby giving rise to a relative
increase in imports, any serious injury to the domestic industry would still have been the direct
result of the overall fall in demand and not of the relative increase in imports.
31. Ukraine's ex post justifications are further undermined by the imposition in March 2009 and
subsequent withdrawal towards the end of 2009 of the 13% additional duty rate on imports of
cars, which appears to have caused, at least partly, the decrease in imports in 2009 and the slow
increase in imports that followed in 2010.
32. Third, Ukraine failed to provide in its published report any reasoned and adequate
explanations concerning the alleged unforeseen de velopments, as required by Articles 3.1 and
4.2(c). The demonstration of "unforeseen develo pments" must feature in the published report.
22
Thus, there must be at least some discussion by the competent authorities as to why the
developments were unforeseen at the time the relevant GATT obligation was negotiated and why
conditions in the second clause of Article XIX:1(a) occurred "as a result" of circumstances
described in the first clause.
23
33. Both the Notice of 14 March 2013 and the Key Findings fail to identify any unforeseen
developments, apart from the increase in imports, and a fortiori fail to provide any discussion or
explanation as to why such events should be cons idered as "unforeseen" and why they resulted in
an increase in imports.
34. Furthermore, there is no support whatsoever to the contention that the analysis of the
unforeseen developments was confidential and that only its results were provided in the Key
Findings. Clearly the Key Findings do not even contain the "results" of such an analysis. Moreover,
nothing in the Notice of 14 March 2013 or any evidence in the record of the Panel indicate that
Ukraine's investigating authorities treated their entire analysis as confidential pursuant to
Article 3.2 of the Agreement on Safeguards. Therefore, as a matter of law, Ukraine's confidentiality
treatment of its analysis or any relevant information contained therein is improper.
35. In any event, regardless of whether Ukraine properly treated the analysis (or relevant
information) as confidential, the competent authorities were still required to provide a reasoned
and adequate explanation on how the facts supported their determination.
24 The need to protect
confidential information cannot simply dispense the competent authorities from the obligation to
publish a report setting forth their findings and reas oned conclusions on all pertinent issues of fact
and law, including the issue of unforeseen developments.
3.3 Ukraine violated Article XIX:1(a) of the GATT 1994 and Articles 3.1, 4.2(c) and
11.1(a) of the Agreement on Safeguards with respect to the determination of the
effect of the obligations incurred under the GATT 1994
36. First, Japan claims that Ukraine violated Article XIX:1(a) of the GATT 1994 and
Article 11.1(a) of the Agreement on Safeguards because it failed to demonstrate that it incurred
obligations under the GATT 1994 and how the effect of these obligations resulted in the increase in
imports.

22 Appellate Body Report, US – Lamb, para. 76.
23 Panel Report, Argentina – Preserved Peaches, para. 7.23.
24 Appellate Body Report, US – Steel Safeguards, para. 298.

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37. The effect of the obligations incurred und er the GATT constitutes a legal requirement.
Whether qualified as a "circumstance" or "prerequisite", this demonstration must be made as a
matter of fact before a safeguard measure can be applied consistently with Article XIX of the
GATT 1994.
25 Moreover, it is for the importing Member to identify in its report the existence of the
obligations under GATT and the link with the increase in imports causing serious injury to its
domestic industry.
26 Finally, under Article XIX:1 it is the relevant tariff concession, rather than the
tariff reduction made to implement it, that must exist and prevent the importing Member from
taking WTO-consistent measures, in order to offset the change in the competitive relationship
caused by the unforeseen development.
38. Ukraine failed to identify the relevant obligations incurred by it under the GATT 1994.
Indeed, the Notice of 14 March 2013 does not identify and a fortiori does not analyse the effect of
any obligations incurred by Ukraine. Likewise, the Key Findings are silent on this issue, in
particular as regards Ukraine's tariff concessions.
39. Furthermore, Ukraine failed to demonstrate a logical connection between the effect of the
obligations incurred under the GATT 1994 and the increase in imports. Article XIX:1(a) clearly
requires an explanation as to how the effect of these obligations "resulted" in the product being
imported in such increased quantities and under such conditions as to cause or threaten to cause
serious injury. Specifically, it must be explained how these obligations had the effect of preventing
the Member concerned from taking WTO-consistent measures, such as an increase in import
duties.
40. The Notice of 14 March 2013 and the Key Findin gs provide no such assessment. Contrary to
Ukraine's assumptions, it is the existence of unfor eseen developments that must have resulted in
the increase in imports while the obligations under GATT must prevent the importing Member from
taking appropriate measures to limit the increased imports that resulted from "unforeseen
developments". Moreover, Ukraine appears to acknowledge that the increase in imports was
principally due to the tariff reduction made at the time of Ukraine's accession to the WTO and that
the decrease in demand resulting from the global economic crisis merely coincided in time.
41. Second, Ukraine did not provide in its published report any reasoned and adequate
explanations concerning the effect of the obligations incurred under the GATT 1994. Japan does
not challenge the fact that upon its accession to the WTO in 2008, Ukraine has made tariff
concessions of 10% ad valorem with respect to passenger cars. However, the effect of obligations
incurred under the GATT 1994 constitutes a pertinent issue of fact and law that must be reflected
in the authorities' published report.
27 Since neither the Notice of 14 March 2013 nor the Key
Findings contain any analysis to that effect, Ukraine violated Articles 3.1 and 4.2(c).
3.4 Ukraine violated Articles 2.1, 3.1, 4.2(a), 4.2(c) and 11.1(a) of the Agreement on
Safeguards and Article XIX:1(a) of the GATT 1994 in relation to its determination
of increased imports
42. First, Japan argues that Ukraine failed to demonstrate that the increased imports were the
result of unforeseen developments and of the effect of the obligations incurred under the
GATT 1994.
43. Article XIX of the GATT 1994 and the Agreement on Safeguards constitute "an inseparable
package" and must be read harmoniously.
28 Since the Notice of 14 March 2013 and the Key
Findings do not contain any analysis of the alleged unforeseen developments and of the effect of
the GATT obligations, the competent authorities have also necessarily failed to establish the
"logical connection" between these conditions and the increase in imports. Thereby, Ukraine

25 Appellate Body Report, Korea – Dairy, para. 85.
26 Panel Report, Dominican Republic – Safeguard Measures, para. 7.146.
27 Panel Report, Dominican Republic – Safeguard Measures, para. 7.146.
28 See e.g. Appellate Body Report, Argentina – Footwear (EC), para.81.

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violated Article XIX:1(a) of the GATT 1994 and Arti cles 2.1, 4.2(a) and 11.1(a) of the Agreement
on Safeguards.
44. Second, Ukraine failed to demonstrate an increase in imports in a manner consistent with
Article XIX:1(a) of the GATT 1994 and Articles 2.1 and 4.2(a) of the Agreement on Safeguards.
45. In the first place, Ukraine failed to demonstrate a "recent" increase in imports. The phrase
"is being imported" in Article 2.1 implies that the increase in imports must have been sudden and
recent.29 However, the alleged increase in imports found by the competent authorities over the
period 2008 – 2010 can hardly be regarded as being "recent" for the application of a safeguard
measure as of April 2013.
46. If at the time the safeguard measures are a pplied, the product is no longer being imported
"in such increased quantities" or the imports are not causing or threatening to cause serious
injury, there is nothing to prevent or remedy by safeguard measures. Moreover, safeguard
measures are "matters of urgency"
30, linked to an extraordinary remedy to be imposed only within
strict limits. Understood in this context, safeguard measures should be applied immediately after
the conclusion of an investigation finding serious injury or a threat thereof, caused by imports "in
such increased quantities".
47. A two-year gap between the end of the investig ation period and the actual imposition of the
safeguard measures is manifestly excessive. In particular, it is clear that the increase in imports
relied upon by Ukraine was not "recent enough" at the time of the application of the safeguard
measures. Furthermore, a one-year gap between the conclusion of the investigation and the actual
imposition of the safeguard measure is also too long. Even if such a delay could in principle be
justified by good-faith efforts on the part of a WTO Member to conduct negotiations, no such
efforts were made in the present case.
48. In the second place, Ukraine failed to demonstrate that the increase in imports was "sudden,
sharp and significant enough". The increase was no t sudden, since the authorities ignored the fact
that in 2005, 2006 and 2007 imports of the product concerned were already steadily increasing.
There is also no evidence in the Notice of 14 March 2013 or in the Key Findings that the alleged
increase in imports was sharp and significant.
49. In its first written submission, Ukraine provided data relating to the absolute volume of
imports per year and to the change of imports in relative terms, which were not included in the
Notice of 14 March 2013 or in the Key Findings and are therefore irrelevant. Moreover, with regard
to the ratio of imports to domestic consumption, this factor is not directly relevant for determining
whether a product is being imported in such increased quantities absolute or relative to domestic
production.
50. In the third place, Ukraine failed to conduct a complete "qualitative analysis" of the data
concerning imports, as it failed to examine the intervening trends as well as the "amounts" of
imports, failed to demonstrate the "unexpected" nature of the increase in imports and failed to
examine "such conditions" under which the imports occurred.
51. Japan submits first that Ukraine failed to ex amine the intervening trends with regard to the
data of imports. In both the Notice of 14 March 2013 and in the Key Findings, Ukraine focused its
analysis on an end-to-end point comparison betw een a starting point, 2008, and an end point,
2010. No data have been provided and analysed for 2009. Ukraine's ex post analysis in its written
submissions is not relevant for the Panel's assessmen t, since it is the explanation in the published

29 Appellate Body Report, Argentina – Footwear (EC), para. 130.
30 Appellate Body Report, Korea – Dairy, para. 86.

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report that allows competent authorities to demonstrate that a product is being imported "in such
increased quantities".31
52. In any event, the data provided by Ukrain e in the course of the proceedings confirm the
relevance of the analysis of the intervening trends. Indeed, the data concerning the imports in
relation to domestic production shows first an 8.9% decrease between 2008 and 2009 followed by
an increase in 2010. The competent authorities shou ld have provided an explanation of how these
trends support the finding that the requirement of "such increased quantities" was fulfilled.
Otherwise, since no clear and uninterrupted upward trend in imports existed, the simple end-
point-to-end-point analysis could easily be manipulated.
32
53. Moreover, both the Notice of 14 March 2013 and the Key Findings only indicate a "rate" of
decrease in absolute terms and a "rate" of increase in relative terms but not the "amounts" – a
factor expressly required under Article 4.2(a). The overview in the Notice of hypothetical increase
in imports after 2010 for a number of countries is not relevant, since Article 2.1 requires actual
increase in imports.

54. In addition, Ukraine did not provide an expl anation as to why the increased imports were
"unforeseen" or "unexpected", given that its commitment in respect of cars upon accession to the
WTO would logically entail such an increase.
55. Finally, Ukraine did not examine "such conditions" under which the imports occurred. In
particular, it is highly relevant that while the imports in relative terms increased, the volume of
imports in absolute terms substantially decreased by 71%. The analysis was important in order to
properly evaluate whether the increased quantities were such as to qualify as "increased imports"
under Article 2.1.
33
56. Third, although the condition that there must be "increased imports" constitutes a pertinent
issue of fact and law within the meaning of Arti cle 3.1, the Notice of 14 March 2013 does not set
forth any findings and reasoned conclusions on this issue. The Notice also fails to provide any
"detailed analysis" of the conditions under which increased imports occurred and "a demonstration
of the relevance of the factors examined", as required by Article 4.2(c).
3.5 Ukraine violated Articles 2.1, 3.1, 4.1(a), 4.1(b), 4.2(a), 4.2(b), 4.2(c) and 11.1(a)
of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 in relation
to its determination of serious injury and/or threat of injury
57. First, Ukraine's failure to clearly identify in its published report whether the determination
made was one of serious injury and/or of threat thereof constitutes in itself a violation of the
relevant provisions of the Agreement on Safeguards. Even in its first written submission, Ukraine
still failed to expressly clarify whether the competent authorities made a finding of serious injury
and/or threat thereof. It only resolved the ambi guity and confirmed that it made a determination
of "threat of serious injury" upon explicit request of the Panel.
34 Japan claims that the requirement
to make an adequate and reasoned explanation as to why the facts on the record support a
determination of serious injury and/or threat thereof necessarily implies that the determination
made (that is a determination of serious injury and/or threat of serious injury) must be clearly
identified in the published report. In Japan's view , the fact that the Notice of 14 March 2013 does
not clearly provide whether the determination is one of serious injury and/or one of threat thereof
should in itself lead the Panel to conclude that the competent authorities did not provide an
adequate and reasoned explanation as to why the facts supported their determination of serious
injury and/or threat of serious injury.

31 Appellate Body Report, US – Steel Safeguards, para. 374.
32 Appellate Body Report, US – Steel Safeguards, para. 354.
33 Appellate Body Report, US – Steel Safeguards, para. 351.
34 Ukraine's response to Panel question No. 4.

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58. Second, Japan submits that Ukraine failed to evaluate all relevant factors, as the competent
authorities failed to provide the "amounts" of the increase in imports while this is one of the
factors listed under Article 4.2(a) of the Agreement on Safeguards. Indeed, they only provided the
rate of the decrease in imports in absolute terms during the POI as well as the relative rate of
increase in imports in comparison to domestic production. What is relevant, however, is not only
the rate of increase but also the amounts which Ukraine failed to evaluate. Without completely
analysing both the rate and the amounts for import s both in absolute and relative terms, Ukraine
was not in a position to reasonably conclude that the product was being imported in such
increased quantities as to cause or threaten to cause serious injury to its domestic industry. The
same applies to changes in various injury factors listed in Article 4.2(a) which need to be
evaluated in both relative and absolute terms. Japan notes that only a relative evaluation of the
changes may be misleading since large relative variations may actually reflect minor changes in
absolute figures. For this reason, and in order to adequately evaluate the overall position of the
domestic industry, investigating authorities were required to examine not only relative changes in
the relevant factors but also the absolute amounts.
59. Third, Ukraine failed to provide a reasoned and adequate explanation of how the facts
support their determination of threat of serious injury. The relevant section on injury in the Notice
of 14 March 2013 and the Key Findings are not reasoned and adequate to demonstrate how the
facts support a determination of threat of serious injury.
60. In the first place, Ukraine failed to "evaluate" the injury factors and, in particular, it did not
examine the intervening trends over the period of investigation. Indeed, the Notice of
14 March 2013 does not contain any "evaluation", namely any "process of analysis and
assessment, requiring the exerci se of judgment on the part of the investigating authorities"
35 of
the injury factors. Furthermore, the Notice of 14 March 2013 and the Key Findings only indicate
the rate of increase/decrease between the beginning and the end of the period of investigation in
defiance of the case law requiring intervening trends to be "systematically considered and factored
into the analysis"
36. The charts and explanations included in Ukraine's first written submission
constitute ex post justifications which are therefore entirely irrelevant for the Panel's assessment
of the matter before it.
61. In the second place, Ukraine failed to demo nstrate the existence of a "significant overall
impairment" that is "clearly imminent" in accordance with "the very high standard of [threat of
serious] injury" 37 under the Agreement on Safeguards. Since in both the Notice of 14 March 2013
and the Key Findings there is no analysis based on "data relating to the most recent past"38 and, in
particular, no analysis of the data for 2010 in comparison to 2009, Ukraine did not provide an
evaluation of and reasoned conclusions based on the most recent data pertaining to the existence
of a threat of serious injury. Moreover, Ukraine neither demonstrated "that the anticipated 'serious
injury' […] [is] on the very verge of occurring" nor that there is "a high degree of likelihood that
the anticipated serious injury will materialize in the very near future."
39 The Notice of
14 March 2013 and the Key Findings do not contain a "prospective analysis" as to why the injury
factors examined indicate that there is a high degree of likelihood that "serious injury" will
materialize in the very near future.
62. In the third place, Ukraine also failed to ma ke a determination of "threat of serious injury"
which is based on the "recent past" 40 by relying on data of the period 2008 – 2010 while the
safeguard measures were decided in 2012 and applied in April 2013. Indeed, for the purposes of
making a fact-based determination in a future thre at analysis "data relating to the most recent

35 Panel Report, EC – Tube or Pipe Fittings, para. 7.314.
36 Panel Report, Argentina – Footwear (EC), para. 8.216.
37 Appellate Body Report, US – Lamb, para. 126.
38 Appellate Body Report, US – Lamb, para. 137.
39 Appellate Body Report, US – Lamb, para. 125.
40 Panel Report, US – Wheat Gluten, para. 8.81.

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past will provide competent authorities with an essential, and usually, the most reliable, basis for a
determination of a threat of serious injury."41
63. Fourth, it clearly follows from the above that Ukraine violated Articles 3.1 and 4.2(c) of the
Agreement on Safeguards, as it failed to provide a reasoned and adequate explanation as to how
the facts support a determination of threat of serious injury in its published report. Contrary to
Ukraine's claims, neither the Notice of 14 March 2013 nor the Key Findings contain "the indexed
results of the conducted analysis of injury factors."
42 In particular, in the Notice of 14 March 2013
the competent authorities do not provide the explanations "to fullest extent possible" 43, since it
does not even contain any data concerning 2009 or any absolute figures "in a modified form (e.g.
aggregation or indexing)."
44 The protection of confidential information cannot be a justification for
not complying with the requirements laid down in Articles 3.1 and 4.2(c) of the Agreement on
Safeguards, considering that "even if competent authorities are permitted not to disclose the data
yet, nevertheless, rely on it, they are still required to provide through means other than full
disclosure of that data, a reasoned and adequate explanation."
45
3.6 Ukraine violated Articles 2.1, 3.1, 4.1(a), 4.1(b), 4.2(a), 4.2(b), 4.2(c) and 11.1(a)
of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 in its
determination of the causal link between the increase in imports and the threat of
serious injury
64. First, since Ukraine failed to demonstrate the existence of unforeseen developments and, a
fortiori, any change in the competitive relationship between the domestic and imported products, it
could not correctly perform the causation analysis. According to Article 2.1 a safeguard measure
may be applied only if it has been determined that a product is being imported, inter alia, "under
such conditions" as to cause or threaten to cause serious injury. Thus, in the demonstration of
causation the nature of the interaction betwee n the imported and domestic products in the
domestic market of the importing country must be examined.
46 In the present case, the Notice of
14 March 2013 and the Key Findings do not, however, contain any assessment of the conditions of
competition in the domestic market for the produc t in question that would explain the interaction
of the imported and domestic product.
65. Therefore, the competent authorities failed to establish an impact on the competitive
relationship between domestic and imported products that resulted in the increase in imports,
thereby causing threat of serious injury to the domestic industry.
66. Moreover, a coincidence in time between the increase in imports and the impairment of the
domestic industry cannot prove causation. Its abse nce, however, creates serious doubts as to the
existence of a causal link.
47 In the present case a prima facie contradiction exists between the
import volumes which substantially decreased in absolute terms and the alleged threat of serious
injury. Furthermore, the imports increased relative to domestic production only between 2009 and
2010 but decreased even in relative terms betw een 2008 and 2009. Conversely, while the injury
indicators deteriorated between 2008 and 2009, most of them actually improved between 2009
and 2010. There is thus no clear coincidence in time between the movements in imports and the
movements in injury factors.
67. The absence of a coincidence would have re quired a very compelling analysis of why
causation could still be considered to be present. By contrast, the examination of the competent

41 Appellate Body Report, US – Lamb, para. 137.
42 Ukraine's first written submission, para. 147.
43 Panel Report, US – Steel Safeguards, para. 10.274.
44 Panel Report, US – Steel Safeguards, para. 10.274.
45 Panel Report, US – Steel Safeguards, para. 10.275.
46 Panel Report Argentina – Footwear (EC), para. 8.250, confirmed in Appellate Body Report, Argentina
– Footwear (EC), para. 145.
47 Panel Report, Argentina – Footwear (EC), para. 8.238.

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authorities does not contain any analysis of the relationship between the movements in imports
(volume and market share) and the movements in injury factors.
68. Second, Ukraine failed to make the non-attribution analysis as required by Article 4.2(b) of
the Agreement on Safeguards, although, undisputedly, the competent authorities acknowledged in
their Key Findings the existence of four other factors with possible injurious effects on the
domestic industry at the same time as the alleged increased imports: the global financial and
economic crisis, the non-competitiveness of the do mestic industry, the 13% additional duty rate
and the end of the government support granted to the automobile industry between 1997 and
2008.
69. Under Article 4.2(b), second sentence, when factors other than increased imports are
causing injury at the same time as increased imports, competent authorities must ensure that
injury caused to the domestic industry by other factors is not attributed to the increased imports.
To this end the competent authorities must identify the nature and extent of the injurious effects
of the other known factors and distinguish them explicitly, through a reasoned and adequate
explanation, from the effects of the increased imports.
48
70. The Notice of 14 March 2013, while accepting that interested parties had claimed that the
deterioration of the domestic industry was due to other factors, contains no further assessment. As
the Key Findings are not part of the "published re port", the Panel should not examine whether the
competent authorities provided a reasoned and adeq uate explanation therein. In any event, this
document contains only a very brief analysis that manifestly fails to comply with the requirements
of the Agreement on Safeguards.
71. The global financial and economic crisis was recognised in the Key Findings as having a
negative impact on the domestic industry as it resulted in decreased consumption. However, no
analysis was carried out separating the injurious effects of the crisis from those of the increased
imports. Ukraine's ex post justifications, while irrelevant to the Panel's analysis, are also unable to
explain what injurious effects the crisis had on th e domestic industry, or the process by which the
competent authorities would have separated the injurious effects of the crisis from the other
injurious effects.
72. Although the termination of the Government support that existed between 1997 and 2008
was referred to in the Key Findings as a factor that could have negatively impacted the domestic
industry's financial condition, the authorities refused to analyse it, as it was a factor outside the
period of investigation. The fact that the Government programme ended on 1 January 2008
means, however, that between 1997 and 2008 the domestic car industry was enjoying significant
support from which it could no longer benefit during the investigation period. Therefore, the
alleged deterioration of the domestic industry situation between 2008 and 2010 could quite likely
flow from the absence of this support and the authorities were required to distinguish its injurious
effects from those of the increased imports.
73. The 13-percent additional duty rate, introduced in 2009 on inter alia cars, was a third factor
identified in the Key Findings. However, contrary to the statement therein and based on the text of
the relevant law, the 13-percent additional duty covered all non-critical imports irrespective of
their country of origin, including imports from countries with which Ukraine has free trade
agreements. Furthermore, the fact that, according to the Key Findings, this additional duty did not
rule out imports does not constitute a reasoned and adequate explanation as to why the injury
caused by the termination of this duty was not attributed to the increased imports.
74. The non-competitiveness of the domestic prod ucts is the fourth factor identified by the
competent authorities in the Key Findings for which no analysis was provided.

48 Appellate Body Report, US – Line Pipe, para. 215.

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75. Third, Ukraine violated Articles 3.1 and 4.2(c) of the Agreement on Safeguards, since the
published report does not contain reasoned and ad equate explanations regarding the existence of
the causal link between the increased imports and th e alleged threat of serious injury, nor does it
include a proper non-attribution analysis.
3.7 Ukraine violated Articles 3.1, 4.2(c), 5. 1, 7.1, 7.4 and 11.1(a) of the Agreement on
Safeguards and Article XIX:1(a) of th e GATT 1994 because it applied safeguard
measures beyond the extent necessary to prevent or remedy serious injury and to
facilitate adjustment
76. First, Ukraine failed to apply safeguard measures only to the extent necessary to prevent or
remedy serious injury. As already mentioned above, Ukraine failed in its causation and non-
attribution analysis by setting the duty rate and the duration of the safeguard measure in such a
manner that it addresses also injury attributed to other factors. Since the compliance with
Article 5.1 is linked with the observance of the causation requirement established in Article 4.2(b),
it can be presumed that the safeguard measures have not been applied only to the extent
necessary under Article 5.1.
49 Furthermore, Ukraine did not clarify why and how its tariff
concession prevented it from taking measures to offset the change generated by the unforeseen
development and therefore failed to establish that the safeguard measure was applied only to the
extent necessary to prevent or remedy such serious injury. Japan also notes that since Ukraine
applied its safeguard measures only in April 2013 on the basis of an analysis of imports and of the
situation of the industry concerning the period prior to 2011, such measures cannot be regarded
as having been applied "only to the extent necessary to prevent or remedy serious injury."
77. Second, Ukraine failed to progressively liberalize the safeguard measures and failed to
apply them only to the extent necessary to facilitate adjustment. In the present case, Ukraine
introduced the safeguard measures for a period of three years. It was therefore under the legal
obligation to progressively liberalize these measures at regular intervals during the period of their
application. Ukraine failed to meet this obligation since it did not provide for the progressive
liberalization in the initial decision imposing th e safeguard measure as reflected in the Notice of
14 March 2013 and an a posteriori decision which became effective on 28 March 2014 does not
render the measures consistent with Article 7.4 of the Agreement on Safeguards. Indeed, the
requirement to provide for a progressive liberalization, by submitting a relevant timetable, has to
be satisfied before the safeguard measures ar e applied as confirmed by Article 12.2 of the
Agreement on Safeguards which provides that in the notification made pursuant to Articles 12.1(b)
and 12.1(c) the Member proposing to apply the safeguard measure must provide the "timetable
for progressive liberalization." Moreover, Ukraine also defied progressive liberalization as a means
to achieve the purpose of facilitating adjustment in accordance with Article 7.4 and, therefore,
failed to apply the safeguard measures only "to the extent necessary to facilitate adjustment" in
violation of Article 7.1 and 5.1.
78. Third, Japan considers that by failing to provide a timetable for progressive liberalization in
its Notice of 14 March 2013, Ukraine violated Ar ticles 3.1 and 4.2(c) of the Agreement on
Safeguards since a timetable for progressive liberalization constitutes a "pertinent issue of fact and
law" within the meaning of Article 3.1 and therefor e should be part of the report published by the
competent authorities. Likewise, the lack of a timetable for progressive liberalization constitutes a
violation of Article 4.2(c) which requires the publ ication of a detailed analysis of the case and a
demonstration of the relevance of the factors examined.
3.8 Ukraine violated Article II:1(b) of the GATT 1994
79. Japan claims that the unlawfulness of Ukrain e's safeguard measures has been demonstrated
beyond all doubt. Therefore, it must be concluded that Ukraine imposed duties which are in excess
of those set forth in its schedule, thereby violating Article II:1(b) of the GATT 1994.

49 Appellate Body Report, US – Line Pipe, para. 261.

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4. LEGAL CLAIMS: PROCEDURAL REQUIREMENTS UNDER ARTICLE 12 OF THE
AGREEMENT ON SAFEGUARDS
80. Japan claims that Ukraine has violated Articles 12.1 and 12.2 of the Agreement on
Safeguards, since it has failed to immediately notify the Committee on Safeguards in accordance
with the requirements under Articles 12.1 and 12.2 of the Agreement on Safeguards. Furthermore,
Japan submits that Ukraine violated Articles 12.3, 12.5 and 8.1 of the Agreement on Safeguards.
4.1 Ukraine failed to comply with the notification requirements under Articles 12.1 and
12.2 of the Agreement on Safeguards
81. First, Ukraine failed to notify "immediately" the Committee on Safeguards upon initiating
the safeguard investigation, making a finding of serious injury and of taking a decision to apply
safeguard measures, thereby violating Article 12.1 of the Agreement on Safeguards. Article 12.1 of
the Agreement on Safeguards requires Members to immediately notify the Committee on
Safeguards at three points: a) when initiating an investigatory process; b) when making a finding
of serious injury; and c) when taking a decision to apply or extend a safeguard measure. In all
three cases, the notification must be made "immediately." An "immediate" notification is to be
made "without delay, at once, instantly"
50 in order to allow "the Committee on Safeguards, and
Members, the fullest possible period to reflect upon and react to an ongoing safeguard
investigation."51 Article 12.1 sets out "three separate obligations" to make notification to the
Committee on Safeguards, "each of which is trigge red 'upon' the occurrence of an event specified
in one of the three subparagraphs."52
82. In the first place, Ukraine failed to "immed iately" notify the Committee on Safeguards upon
initiating the safeguard investigation. In the present case, the decision to initiate the safeguard
investigation published in the Official Journal on 2 July 2011 was only notified on 13 July 2011, i.e.
11 days after its publication. Japan does not disput e that the need for translation into one of the
WTO's working languages, invoked as a justification for the delay by Ukraine, is a factor that may
be taken into account to determine the degree of urgency required under Article 12.1 of the
Agreement on Safeguards. However, Japan does not agree with Ukraine that this factor claimed to
have a bearing on the degree of immediacy in this case, justifies a notification period of 11 days
a n d w o u l d , a s a r e s u l t , a l l o w t o c o n s i d e r a n o t i f i c a t i o n m a d e i n t h a t p e r i o d o f t i m e t o b e
"immediate" under Article 12.1(a). In particular, in light of the "the character of the information
supplied"
53, the need to prepare a document counting 604 words in one of the WTO's working
languages cannot justify a delay of 11 days, especial ly with regard to a Member's obligation under
Article 12.1 to limit the amount of time taken to prepare a notification to a "minimum".54
83. In the second place, Ukraine violated its obligation to notify "immediately" upon making a
finding of a serious injury or threat thereof pursuant to Article 12.1(b) of the Agreement on
Safeguards and upon taking a decision to apply a safeguard measure pursuant to Article 12.1(c).
It follows from the text of Article 12.1 and the inte ntion of the drafters that the relevant date by
reference to which the Panel should assess the existence of any delay in notifying the relevant
information pursuant to Articles 12.1(b) and 12 .1(c) is respectively th e moment of making a
finding of injury for the purposes of Article 12.1(b) and the moment of taking a decision to apply a
safeguard measure for the purposes of Article 12 .1(c). Indeed, the aforementioned triggering
event under Articles 12.1(b) and 12.1(c) gives "the (…) Members, the fullest possible period to
reflect upon and react"
55 to the corresponding stage in the investigation given the imminence of
the application of the measure entailing the opport unity for WTO Members to exercise their rights
under the Agreement on Safeguards, in particul ar Article 12.3, and to require the imposing

50 Panel Report, Korea – Dairy, para. 7.128 confirmed by Appellate Body Report, US – Wheat Gluten,
para. 105.
51 Appellate Body Report, US – Wheat Gluten, para. 106 (emphasis in the original).
52 Appellate Body Report, US – Wheat Gluten, para. 102.
53 Appellate Body Report, US – Wheat Gluten, para. 105.
54 Appellate Body Report, US – Wheat Gluten, para. 105.
55 Appellate Body Report, US – Wheat Gluten, para. 106 (emphasis in the original).

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Member's compliance with the substantive obligati ons under the Agreement on Safeguards. In the
present case, the "decision" to impose safeguard measures taken by Ukraine on 28 April 2012
which was published in the Official Journal on 14 March 2013 has been notified to the Committee
on Safeguards on 21 March 2013. Since, as noted above, the triggering event is the "taking" of the
decision which took place on 28 April 2012, the notification was made almost one year after the
taking of the decision and is therefore clearly inconsistent with the requirement of "immediate"
notification under Article 12.1(b) and (c) of the Agreement on Safeguards.
84. Second, Ukraine violated Article 12.2 of the Agreement on Safeguards. Article 12.2 requires
the Member proposing to apply a safeguard measure to provide the Committee on Safeguards with
"all pertinent, not just any pertinent, information."
56 The notifications under Article 12.1(b) and
12.1(c) must " at a minimum , address all the items specified in Article 12.2 as constituting 'all
pertinent information', as well as the factors listed in Article 4.2 that are required to be evaluated
in a safeguards investigation."
57
85. In the first place, the notification made by Ukraine pursuant to Article 12.1(b) and
Article 12.1(c) of the Agreement on Safeguards on 21 March 2013 does not include evidence of
serious injury or threat thereof caused by the increased imports, as the following mandatory
information is absent from the notification: the amounts of the decrease in imports in absolute
terms and the amounts of the increase in imports in relative terms over the investigation period,
the intervening trends for 2008-2009 and for 2009-2 010 in relation to each injury factor, the
absolute figures for each injury factor and "the causal link between increased imports of the
product concerned and serious injury or threat thereof".
86. In the second place, in violation of Articl e 12.2, Ukraine did not provide any "timetable for
progressive liberalization" in its initial notification made on 21 March 2013. The fact that Ukraine's
notification made on 28 March 2014, i.e. more than a year after its notification on 21 March 2013,
includes a timetable for progressive liberalization cannot render the previous notification made by
Ukraine on 21 March 2013 consistent with Article 12.2 of the Agreement on Safeguards. In that
respect, it should be underlined that "the notification serves essentially a transparency and
information purpose,"
58 enabling in particular exporting Members to "be in a better position to
engage in meaningful consultations, as envisaged by Article 12.3" 59. The absence of the required
information, including the timetable for progressive liberalization, defeats this fundamental goal of
"transparency and information".
4.2 Ukraine failed to comply with the requirements of Article 12.3 of the Agreement on
Safeguards
87. First, Ukraine did not provide an adequate opportunity for prior consultations with Japan
after Ukraine notified the Committee on Safeguards under Article 12.1(c) and 12.2 of the
Agreement on Safeguards on 21 March 2013. Despite the repeated requests of Japan and other
WTO Members for consultations under Article 12.3 after Ukraine's notification on 21 March 2013,
no consultations were held with a view to reviewing the information provided by Ukraine in its
notification pursuant to Article 12.2 of the Agreement on Safeguards made on 21 March 2013.
88. It follows from the wording of the Agreemen t on Safeguards and the findings of previous
panels and the Appellate Body that the requirem ents under Article 12.3 cannot be satisfied, if
consultations took place on the basis of all the information under Article 12.2 provided by different
means than the notifications under Articles 12.1(b) or 12.1(c). Indeed, Article 12.3 provides that
an adequate opportunity for prior consultations are to be provided "with a view to, inter alia ,
reviewing the information provided under paragraph 2" of Article 12. The information "provided
under paragraph 2" is the information that has been provided "in making the notifications" under

56 Appellate Body Report, Korea – Dairy, para. 107.
57 Appellate Body Report, Korea – Dairy, para. 109.
58 Appellate Body Report, Korea – Dairy, para. 111 referring to Panel Report, Korea – Dairy,
para. 7.126.
59 Appellate Body Report, Korea – Dairy, para. 111.

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Article 12.1(b) and 1(c) to the Committee on Safe guards. Thus, the wording clearly confirms that
the opportunity for prior consultations must be given once the notification has been made
pursuant to Articles 12.1(c) and 12.2 of the Agreement on Safeguards. Furthermore, the
"information provided under paragraph 2" covers not only "all pertinent information" but also any
"additional information" provided upon the requ est of the Council for Trade in Goods or the
Committee on Safeguards. In the absence of any notification under Articles 12.1(b) and 12.1(c), it
would appear impossible to provide the "additional information" at the request of the Council for
Trade in Goods or the Committee on Safeguards.
89. Second, in any event, the consultations held on 19 April 2012 do not fulfil the requirements
laid down in Article 12.3 of the Agreement on Safeguards. Article 12.3 requires that the Member
proposing to apply the safeguard measure provid e exporting Members with sufficient time and
sufficient information for meaningful consultations.
 60
90. The Key Findings sent by the Ministry of Economic Development and Trade of Ukraine on
11 April 2012 to the Embassy of Japan in Ukraine di d not provide sufficient information to enable
meaningful consultations, as they did not contain a proposed date of application, any precise
details, such as the rate of the safeguard measure or any pertinent information of essential nature
concerning injury, causation and other elements mentioned in Article 12.3.
91. Furthermore, Ukraine did not provide Japan with "sufficient time" to enable meaningful
consultations since the Key Findings was only provided to Japan 8 days prior to the date of the
consultations.
4.3 Ukraine violated Article 12.5 of the Agreement on Safeguards
92. Japan claims that even if it were to be found that consultations were held between Ukraine
and Japan, the results of these consultations have not been notified, and a fortiori not notified
"immediately" to the Council for Trade in Goods. Thereby, Ukraine violated Article 12.5 of the
Agreement on Safeguards.
93. Indeed, it is the Member "proposing to apply or extend a safeguard measure" under
Article 12.3 who is obliged to make the notification as a "Member concerned" within the meaning
of Article 12.5.
94. Neither the alleged failure of Japan to notify the results of the consultations under
Article 12.5 nor the alleged harmless nature of the violation has any bearing on the fact that
Ukraine did not comply with the requirement stated in Article 12.5 of the Agreement on
Safeguards.
95. If the Panel were to hold that consultations within the meaning of Article 12.3 were held, the
Panel must sustain Japan's claim under Article 12.5, since it is not contested that any result of
alleged consultations under Article 12.3 in this case has ever been notified to the Council for Trade
in Goods.
4.4 Ukraine violated Article 8.1 of the Agreement on Safeguards
96. Japan claims that Ukraine failed to comply with Article 8.1 of the Agreement on Safeguards
since it did not endeavour to maintain a substantially equivalent level of concessions and other
obligations to that existing between Ukraine and Japan under the GATT 1994 in accordance with
Article 12.3 of the Agreement on Safeguards.
97. As pointed out above, Ukraine has failed to "provide an adequate opportunity for prior
consultations" within the meaning of Article 12.3. For that reason alone, Ukraine should therefore
be found to violate Article 8.1 of the Agreement on Safeguards. Indeed, "[i]n view of the explicit

60 Appellate Body Report, US – Wheat Gluten, para. 136.

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link between Articles 8.1 and 12.3 of the Ag reement on Safeguards, a Member cannot […]
'endeavor to maintain' an adequate balance of concessions unless it has, as a first step, provided
an adequate opportunity for prior consultations on a proposed measure."
61
98. In this regard, Article 8.2 does not serve as a rectification of a violation of Article 8.1.
Article 8.2 does not address the breach of Article 8.1, since it is concerned with a temporary relief
to the harm of a safeguard measure as a consequence of the failure to reach an agreement on
adequate means of trade compensation under Article 8.1.
5. CONCLUSIONS
99. Japan respectfully requests the Panel to fi nd that Ukraine acted inconsistently with its
obligations under the Agreement on Safeguards and the GATT 1994, and in particular, that the
safeguard measures adopted by Ukraine are in violation of the following provisions:
- Articles 3.1 and 4.2(c) of the Agreement on Safeguards because Ukraine failed to publish a
report setting forth its findings and reasoned conclusions reached on all pertinent issues of
fact and law and a detailed analysis of the case under investigation as well as a
demonstration of the relevance of the factors examined;
- Article 3.1 of the Agreement on Safeguards because Ukraine failed to conduct a proper
investigation that includes reasonable public notice to all interested parties and the
opportunities for them to present evidence and their views;
- Article XIX:1(a) of the GATT 1994 and Articles 3.1, 4.2(c) and 11.1(a) of the Agreement on
Safeguards because Ukraine failed to demo nstrate the existence of any "unforeseen
developments"; failed to demonstrate a logical connection between the increase in imports
and the alleged "unforeseen developments"; an d failed to provide reasoned and adequate
findings and conclusions with regard to such "unforeseen developments";
- Article XIX:1(a) of the GATT 1994 and Articles 3.1, 4.2(c) and 11.1(a) of the Agreement on
Safeguards because Ukraine failed to demonstrate and evaluate the effect of the obligations
incurred under the GATT 1994 and how that effect has resulted in the increase in imports;
and failed to provide reasoned and adequate findings and conclusions with regard to the
alleged effect of obligations incurred under the GATT 1994;
- Article XIX:1(a) of the GATT 1994 and Articles 2.1, 3.1, 4.2(a), 4.2(c) and 11.1(a) of the
Agreement on Safeguards because Ukraine failed to demonstrate that the increase in
imports was the result of unforeseen developmen ts and of the effect of obligations incurred
under the GATT 1994; failed to establish an increase in imports in a manner consistent with
Article XIX:1(a) of the GATT 1994 and Articl es 2.1 and 4.2(a) of the Agreement on
Safeguards; and failed to provide reasoned and adequate findings and conclusions with
regard to the increase in imports;
- Article XIX:1(a) of the GATT 1994 and Articles 2.1, 3.1, 4.1(a), 4.1(b), 4.2(a), 4.2(b), 4.2(c)
and 11.1(a) of the Agreement on Safeguards be cause Ukraine failed to examine all relevant
injury factors; and failed to provide reasoned and adequate findings and conclusions of how
the facts support its determination of threat of serious injury;
- Article XIX:1(a) of the GATT 1994 and Articles 2.1, 3.1, 4.1(a), 4.1(b), 4.2(a), 4.2(b), 4.2(c)
and 11.1(a) of the Agreement on Safeguards because Ukraine failed to demonstrate the
existence of a causal link between the allege d increased imports and the alleged threat of
serious injury; failed to make a proper non-attribution analysis; and failed to provide
reasoned and adequate findings and conclusions regarding the existence of a causal link

61 Appellate Body Report, US – Wheat Gluten, para. 146.

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between the increased imports and the alleged th reat of serious injury and non-attribution
of other factors;
- Article XIX:1(a) of the GATT 1994 and Articles 3.1, 4.2(c), 5.1, 7.1, 7.4 and 11.1(a) of the
Agreement on Safeguards because Ukraine has failed to apply safeguard measures "only to
the extent necessary to prevent or remedy serious injury and to facilitate adjustment";
failed to progressively liberalize the safeguard measures by submitting a relevant timetable
for progressive liberalization; and failed to provide reasoned and adequate findings and
conclusions as to why the measures are necessary to prevent or remedy the alleged threat
of serious injury;
- Article II:1(b) of the GATT 1994 because Ukraine imposes duties which are in excess of
those set forth in its schedule through the unlawful safeguard measures at issue;
- Articles 12.1 and 12.2 of the Agreement on Safeguards because Ukraine did not notify
immediately the Committee on Safeguards upon initiating the safeguard investigation,
making a finding of serious injury and taking a decision to apply safeguard measures and
because the initial notification made by Ukraine did not include "all pertinent information" as
required by Article 12.2 of the Agreement on Safeguards;
- Article 12.3 of the Agreement on Safeguards because Ukraine did not provide adequate
opportunities for prior consultations on the proposed safeguard measures and because the
consultations held in April 2012 did not fulfil the requirements laid down in Article 12.3 of
the Agreement on Safeguards;
- Article 12.5 of the Agreement on Safeguards because Ukraine did not notify immediately to
the Council for Trade in Goods the results of any consultations referred to in Article 12 of the
Agreement on Safeguards;
- Article 8.1 of the Agreement on Safeguards because Ukraine did not endeavour to maintain
a substantially equivalent level of concessions and other obligations to that existing between
Ukraine and Japan under the GATT 1994, in accordance with Article 12.3 of the Agreement
on Safeguards.
100. Japan also respectfully requests the Panel to recommend that the DSB requests Ukraine to
bring its measures into conformity with the Agreement on Safeguards and the GATT 1994 by
revoking its safeguard measures.

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ANNEX B-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE
LIST OF ABBREVIATIONS
This document uses abbreviations as follows:

 - The Agreement: Agreement on Safeguards;
 - The Commission: the Interdepartmental International Trade Commission;
 - The Key Findings: the Key Findings of the Ministry of Economic Development and Trade
of Ukraine Based on Special Investigation on Import of Motor Cars to Ukraine Regardless
of Country of Origin and Export;
 - The Law : Law of Ukraine "On Application of Safeguard Measures against Imports to
Ukraine";
 - The Ministry: the Ministry of Economic Development and Trade of Ukraine;
 - The Notice : the Notice on the application of safeguard measures on the imports of
motor cars into Ukraine regardless of the country of origin or export published on
14 March 2013.

I. Introduction
1. This dispute concerns a safeguard measure on certain passenger cars, one of the first
safeguards adopted by Ukraine as a newly-acceded Member who liberalized its tariff from 25 per
cent to 10 per cent and was hit hard by the 2008 global crisis immediately after its accession.

2. The safeguard measure grants such Members th e ability to escape from otherwise inflexible
obligations under the WTO. In the event of unforeseen developments threatening domestic
industry, only the safeguard measures may guarantee the stability of Member's commitments and
enable the Member to restore competitiveness of domestic industry facing a surge of imports and
the resulting serious injury. It is clear that domestic industries protected by safeguard measures
gain the benefit of a temporary respite from competition with imports to build-up its
competitiveness.

3. The global financial crisis had a severe impact on the economy of Ukraine and especially its
motor car industry. The referred crisis resulted in a 15% decrease in Ukrainian GDP and rapid
depreciation of the national currency. Its effect on the passenger car industry was even more
severe.

4. The impact of 2008 global financial crisis and li beralized trade as a result of accession to the
WTO caused an increase in imports relatively to the domestic production and consumption was an
unforeseen development that called for emergency action on imports given that there was a surge
in imports relative to domestic production during that same period.

5. All of the required substantive conditions of Article 2 of the Agreement were met, and the
circumstances referred to in Article XIX of GATT 1994 were evident. Therefore, Ukraine had the
right to impose the challenged safeguard measure on certain passenger cars.

6. The measure was imposed only to the extent necessary to remedy the threat of serious
injury and to facilitate adjustment, as required by Article 5 of the Agreement. The safeguards
measure was significantly liberalized during the period of its application.

7. Finally, Ukraine also complied with the procedural obligations contained in Articles 3, 8 and
12 of the Agreement, as well as Article XIX:2 of GATT 1994, regarding the consultations at certain
stages of the process, notifications, and publications. These procedural obligations are different
from the substantive obligation set forth in Article 2 which determines the right to impose
safeguard measures and still were complied fully.

8. Thus Japan's claims to the contrary must therefore be rejected.

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II. Arguments of Ukraine
1. Japan's claim that Ukraine violated Arti cles 3.1 and 4.2(c) of the Agreement on
Safeguards because it did not conduct a pr oper "investigation" and did not publish a
sufficiently detailed report is flawed
a. Introduction
9. Ukraine conducted a proper investigation under Article 3.1 of the Agreement and published a
sufficiently detailed report under Articles 3.1, last sentence, and 4.2(c) of the Agreement.

b. Legal argument
10. First, Ukraine maintains that the investigation was conducted in accordance with the limited
obligations of Article 3.1 of the Agreement. Th e Agreement does not stipulate any particular
requirement to investigation determination period. According to the Article 8.2 of the domestic Law
the "period of investigation shall be normally from one to three years". As it was made clear in the
Notice and appropriate notification to the WTO, during the investigation period in 2010 compared
to 2008 import of cars in Ukraine increased relative to the domestic production and consumption
that threaten to cause serious injury to domestic industry. Thus, the conclusions were based on
the period in 2010 compared to 2008. Furthermor e, the investigating authority also presented
some more recent data that was available before the investigation was concluded for the 1
st half of
2011 compared to 2008 and 2010 in the Key Findings, particularly, about the further increase in
import volumes in relative terms.

11. Ukraine set the period of investigation as 2008 through 2010 when it initiated the safeguard
investigation on 2 July 2011 and carefully investigated the information inside this period. The
investigating authority is not obliged to review the data outside the period of investigation as
erroneously claimed by Japan.

12. Therefore, the investigation took into account all of the data relating to the period of
investigation and Ukraine updated this information with more recent information that was available
before the investigation was concluded. Japan's argument that the authority should have
continued to update the information even after the end of the investigation is not supported by the
text of the Agreement and must be rejected. There is no obligation in the Agreement to continue
to update the information following the end of the period of investigation and certainly not
following the end of the investigation.

13. Moreover, it was generally accepted by the parties and the third parties that a delay before
the imposition of safeguard measures could possibly be justified by good faith efforts to negotiate
safeguard measures. It is important that a num ber of consultation and meetings between the
Ukrainian officials and the representatives of other exporting Members were held to discuss the
possible imposition of safeguard measure before the application of the measures.

14. Second, Japan complains about the fact th at there was a gap between the date of the
termination of the investigation and the date of application of the measure. However, there is
nothing in the Agreement that provides that the a pplication of the measure must follow the finish
of the investigation within a certain period of time. Moreover, this matter does not concern the
investigation but only the application of the measure and does not invoke the substantive norms of
Article 3.1 and Article 4.2 that are limited to th e actions of the investigating authority in the
investigation, which was finished on 28 April 2012. Therefore, Ukraine was not obliged in any way
to consider any additional factors or periods after the safeguard investigation was finished.

15. Furthermore, Article 3.1 of the Agreement does not prescribe any deadline for the
publication requirement. It merely provides that the competent authorities "shall publish a report
setting forth their findings and reasoned conclusions reached on all pertinent issues of fact and
law". In the context of Article 3.1 and especially Article 4.2 that requires the Member to publish
such report "promptly", this publication obligation arises only at the time of adoption of the
measure, and not before that time.

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16. Third, Ukraine involved the Japanese interested parties in the course of the investigation and
provided appropriate means for the defence of their interests, in accordance with the procedural
obligation of Article 3.1.

17. Ukraine contacted the Embassy of Japan during the investigation and provided it and all the
other registered interested parties with a summary of their rights and obligations as an interested
party of the safeguard investigation, as well as the relevant procedures and a mechanism to
actively participate in the investigation according to the Law and the Agreement.

18. In the Notice on initiation the interested parties were provided a 45-day period to send the
comments and views to the investigating authority for a consideration. A number of the interested
parties used the right to present their position regarding whether or not the application of a
safeguards measure was necessary. The arguments of the interested parties were taken into
consideration by the investigating authority. Japan, however, did not send its comments to the
investigating authority.

19. As for the hearings, all of the interested parties had a notice of and an ample opportunity to
participate in the hearings held on 22 March 2012 and to present evidence and its views and
arguments. A number of the interested parties used the right to participate actively in the hearings
and to present their positions, which were taken into consideration by the investigating authority.

20. Japan did not request to have access to the information provided by other interested parties,
particularly the application by the domestic industry, and did not complain about not being
provided such information by these parties automatically. It was concluded by the investigating
authority during the investigation that Japan was fully informed by the other interested parties,
supplied with all the available evidence, views, submissions, and presentations.

21. It is important that the Member is oblig ed only to provide an opportunity for the
participation, but obviously cannot force the interested parties to present their interests. Japan
was able to participate much more actively in the investigation like the other interested parties
did, but did not fully exercise its rights at that moment. It is highly doubtful that Japan's limited
participation by providing only declarative statements during the investigation was the fault of the
Ukrainian investigating authorities in the light of all of the above facts. If such arguments are
taken for granted, any interested party in any future investigation that ignored its right to
communicate with others interested parties and authorities can question the safeguard measure
afterwards on a similar premise.

c. Conclusion
22. The investigation took into account all of the data relating to the period of investigation and
Ukraine updated this information with more recent information that was available before the
investigation was concluded. Japan's apparent argument that the authority should have continued
to update the information even after the end of the investigation is not supported by the text of
the Agreement and must be rejected.

23. Ukraine published its detailed analysis of the investigation promptly upon adoption of
measure and therefore complied with the publication- related obligations of Articles 3.1 and 4.2(c)
of the Agreement. There is no set of rules in the Agreement or Article XIX of GATT 1994
concerning the format of published report.

24. Similarly, Ukraine involved the Japanese interested parties in the course of the investigation
and provided appropriate means for the defense of their interests, in accordance with the
procedural obligation of Article 3.1. Japan's claim to the contrary is not supported by the facts on
the record.

25. Therefore, Ukraine requests that all of Japa n's claims under Article 3.1 and 4.2 (c) of the
Agreement be rejected.

- B-22 -

2. Japan's claim that Ukraine violated Article XIX:1(a) of the GATT 1994 and Articles 3.1,
4.2(c) and 11.1(a) of the Agreement on Safegu ards with respect to its determination on
unforeseen developments is flawed
a. Introduction
26. Japan's claim that Ukraine violated Article XIX:1(a) of the GATT 1994 and Article 11.1(a) of
the Agreement is not justified because Ukrain e properly demonstrated the existence of
"unforeseen developments", their logical connection to the increase in imports relatively to the
domestic production, and consequently fulfilled its obligations under Articles 3.1 and 4.2(c) of the
Agreement.

b. Legal argument
27. Unforeseen developments are a circumstance that is found in Article XIX of GATT 1994 and
must be demonstrated as a matter of fact. Moreover, the unforeseen developments can only be
viewed together with the binding effect of the obligations under the GATT. As the injury to the
domestic industry or threat thereof has to be caused by the significant increase of imports, but not
by the unforeseen developments or the obligations incurred under GATT 1994 directly. It is the
causal relationship between the increase in imports and the injury to the domestic industry or
threat thereof that is the prerequisite for the ap plication of safeguard measures and need to be
analysed during the safeguard investigation. The unforeseen developments and the obligations
incurred under GATT 1994 are the circumstances th at shall cause the significant increase of
imports.

28. In the present case the global financial and economic crisis that was neither foreseen nor
expected by Ukraine earlier during its trade negotiations on concessions, and the obligations
assumed during Ukraine's accession caused the increase in imports relatively to the domestic
production. One of these circumstances alone could not result in a significant enough change in
competitive relationship between imports and domestic products.

29. The facts confirm that the increased imports can only be associated with the combination of
a global economic crisis just after the liberalization and other major changes in the Ukrainian
economy as a result of the WTO accession. These circumstances existed as a matter of fact and
were identified in the Key Findings, the Notice, and the notification to the WTO even though the
latter included only a reference to the results of these circumstances.

30. As the 2008 global financial and economic crisis is a widely accepted and an uncontested
fact, it does not indeed require any additional ev idence to prove its existence. Moreover, as this
circumstance was not questioned by the interested parties, it was concluded by the investigating
authority that it existed as a matter of fact and did not need any confirmation.

31. The investigating authority explained that it was unforeseen that imports would increase by
37.9 per cent relative to domestic automobile production in Ukraine in 2010 compared to 2008,
despite the decrease in import volumes in absolute terms. This relative increase in imports
decreased the market share of the domestic industry by 35.45 per cent. The significant increase in
market share of imports came on the heels of the global financial crisis, which had a significant
impact on the Ukrainian passenger car industry. Japan was obviously aware of the global crisis
during the period of investigation.

32. Ukraine did provide an analysis of the consequences of the global financial and economic
crisis. Moreover, Ukraine also analysed other factors that were caused directly by the crisis,
namely the consequent decrease in consumption in the non-attribution section of the Key Findings.
It was determined that this effect of the global economic crisis could not be responsible for the
injury to the domestic industry.

c. Conclusion
33. Ukraine established a clear relationship be tween the unforeseen developments that existed
as a matter of fact and the increase in imports that threatened to seriously injure the domestic
industry.

- B-23 -

34. Japan's argument Ukraine did not provide suffi cient "reasoned conclusions" on "all pertinent
issues" including the unforeseen developments in vi olation of the requirement to provide a report
on these issues is not supported by the evidence on the record.

35. Therefore, Japan's claim of violation of Article XIX:1(a) of the GATT 1994 in combination
with Article 11.1(a) of the Agreement, and Articles 3.1 and 4.2(c) of the Agreement must fail.
3. Japan's claim that Ukraine violated Article XIX:1(a) of the GATT 1994 and Articles 3.1,
4.2(c) and 11.1(a) of the Agreement on Safeguards with respect to the determination of
the effect of the obligations incurred under the GATT is without merit
a. Introduction
36. Contrary to Japan's claim, Ukraine's determination was conducted in accordance to
Article XIX:1(a) in context of the "effect of obligations incurred under the GATT". Ukraine
mentioned the effect of its GATT obligation under Article II:1(b) to maintain tariffs on these
products at no more than 10 percent, did address the logical connection of those obligations to the
increase in imports, and reported on these "perti nent" elements under Articles 3.1 and 4.2 of the
Agreement.

b. Legal argument
37. To accede to the WTO, Ukraine committed to reduce the import duty on passenger cars in
2008 from 25 percent to 10 percent with no phase-down period. Unfortunately, after the tariffs
decreased as a result of Ukraine's obligations the global financial and economic crisis started. Due
to these circumstances the imports of passenger cars into Ukraine relative to domestic production
increased in the same time as the absolute amount of imports decreased as referred to in the
Notice.

38. The reduction of the tariff to 10 percent was analysed in the non-attribution section of the
Key Findings. It was concluded that its effect on the imports of passenger cars into the Ukraine
market during the period of investigation was li mited though and could not cause the significant
increase in imports by itself.

39. Furthermore, there is no need for any detailed conclusions and other explanation when as a
matter of fact it is uncontested that Ukraine made significant tariff commitments in respect of
passenger cars when it joined the WTO in 2008. Of all countries, Japan cannot seriously deny that
as a matter of fact this is the case given its active involvement in the Ukraine's accession
negotiations.

40. It is a fact that Ukraine made significant tariff concession on passenger cars when it joined
the WTO on 16 May 2008. This is a fact Japan cannot deny given its active involvement in the
Ukraine's accession negotiations. Moreover, Ukraine mentioned the obligations in the Key Findings
incurred under the GATT in a specific context clearly presenting the results of the analysis of
causality between the obligations and the increase in imports.

c. Conclusion
41. Ukraine therefore requests the Panel to reject Japan's claim of violation of Article XIX:1(a) of
the GATT 1994 in combination with Article 11.1(a) of the Agreement, and Articles 3.1 and 4.2(c) of
the Agreement.
Claim 4: Japan's claim that Ukraine violated Ar ticles 2.1, 3.1, 4.2(a), 4.2(c) and 11.1(a)
of the Agreement on Safeguards and Article XI X:1(a) of the GATT 1994 in relation to its
determination of increased imports must fail
a. Introduction
42. Ukraine obviously fulfilled its obligations in regard to its determination of the increased
imports. Japan's claims must fail because Ukraine showed that the increased imports were caused
by unforeseen developments and the effect of its GATT 1994 obligations, and the investigating
authority did examine all the elements relating to increased imports, that is:

- B-24 -

the evidence of import increase is recent;
the increase was sufficiently recent, sudden, sharp and significant;
the qualitative analysis of the imports increase was conducted;
the unforeseen or unexpected aspects of the increase were obvious;
the conditions of the increase in imports were analysed.

43. Therefore, Ukraine acted in accordance to Arti cles 2.1, 3.1, 4.2(a), 4.2(c) and 11.1(a) of the
Agreement and Article XIX:1(a) of the GATT 1994. Moreover, Ukraine reported these elements
pursuant to Articles 3.1 and 4.2(c) of the Agr eement. Japan's claims are not supported by the
facts on the record and are without merit.

b. Legal argument
44. First, as explained in the prior section, Ukraine demonstrated that the increased imports
were the result of unforeseen developments and the effect of the tariff commitments it made on
passenger cars. The first argument of Japan, which is a purely consequential argument that is
based on its flawed claims relating to Article XIX of GATT 1994, is thus without merit.

45. Second, Ukraine met its obligations under the Agreement by examining all elements related
to the increase in imports. The data used by Ukraine in its analysis was the most recent data
available as was explained above.

46. Third, the increase in imports that caused a threat of serious injury was sufficiently recent,
sudden, sharp and significant. Although the vo lume of passenger car imports into Ukraine
decreased by 71 percent, there was a significant increase in imported passenger cars in relative
terms. In 2010, the most recent year of data, imports of passenger cars relatively to domestic
consumption and domestic production showed a sudden and significant increase. In 2010, they
sharply increased by 37.1 and 37.9 percent resp ectively from 2008. The increase by over 30
percentage points is obviously sudden, sharp and significant.

47. Ukraine analyzed the amounts and rates of th e increase in imports and taking into account
the non-disclosure requirements of Article 3.2 pr ovided the non-confidential summary of such
analysis in the Key Findings, Notice and notification to the WTO.

48. Japan aims to add to the obligations of Ukraine under Article 4.2 of the Agreement a
responsibility that would be simultaneously a violation of Article 3.2 provision which explicitly
states that: "such information shall not be disclosed without permission of the party submitting it".
As explained by the Panel in US – Steel Safeguards , the non-disclosure requirement is more
important as far as the authority is able to resort to "ways of presenting data in a modified form
(e.g. aggregation or indexing), which protects confidentiality".

49. However, by providing not only the rates, but also the amounts, hence, the absolute figures
of the import increase or any of other relevant factors having a bearing on the situation of that
industry Ukraine would violate its obligations under Article 3.2 and invalidate all the efforts it took
to protect confidential data of the domestic indu stry by making the confidentiality of the indexed
data vulnerable to a simple numerical analysis.

50. In its Key Findings, Notice, and WTO notification Ukraine managed to present a sufficiently
detailed picture of the increased imports and oblige its non-disclosure obligations by indicating that
"the volume of imports of motor cars into Ukra ine in quantitative terms decreased by 71%, the
share of imports increased by 37.1% to dome stic consumption and by 37.9% to domestic
production". It is obvious that the rates of increase in imports were based on the absolute figures.

51. As discussed in more detail when addressing Japan's injury related claims, this sudden
increase in imports relative to domestic production and consumption threatened to cause further
serious injury. The domestic industry's market sh are decreased by 35 percent in 2010 over 2008
levels.

52. This analysis was fully conducted by the investigating authority during the investigation and
was properly summarized in the Key Findings, the Notice and the WTO notification. The absolute
figures, however, were confidential and were therefore not disclosed.

- B-25 -

c. Conclusion
53. Japan's claims regarding the determination of increased imports under Articles 2.1, 3.1,
4.2(a), 4.2(c) and 11.1(a) of the Agreement an d Article XIX:1(a) of the GATT 1994 must be
rejected.
Claim 5: Japan's claim that Ukraine violated Articles 2.1, 3.1, 4.1(a), 4.1(b), 4.2(a),
4.2(b), 4.2(c) and 11.1(a) of the Agreement on Safeguards and Article XIX:1(a) of the
GATT 1994 in relation to its determination of injury and/or threat of injury is flawed
a. Introduction
54. Ukraine conducted a comprehensive investigation of injury under Articles 2.1, 4.1(a), 4.1(b),
4.2(a), 4.2(b) and 11.1(a) of the Agreement and Article XIX:1(a) of the GATT 1994. Japan's
arguments fail for the following reasons:

Ukraine evaluated the injury factors properly;
Ukraine did determine that there was a significant overall impairment to the domestic
industry;
Ukraine based the investigation on the most recent data available;
Ukraine determined a threat of serious injury pertaining to the most recent past; and
Ukraine conducted the qualitative examination of all injury factors properly.

55. Moreover, as Ukraine fulfilled its obligations in the above context, Japan's consequential
claims that the failure to sufficiently explain these elements in the Notice violates Articles 3.1 and
4.2(c) of the Agreement must fail as well.

b. Legal argument
56. Serious injury is defined in Article 4.1 of the Safeguards Agreement as "a significant overall
impairment in the position of the domestic industry". The same provision states that "threat of
serious injury" shall be understood to mean serious injury that is clearly imminent, adding that a
determination of the existence of a threat shall be based on facts and not merely on allegation,
conjecture or remote possibility.

57. Ukraine analysed all the injury factors includ ing the market shares and provided a reasoned
and adequate explanation of how the facts supported its final determination. Contrary to Japan's
arguments, Ukraine conducted a full analysis of the serious injury or threat of injury factors.
Ukraine summarized its confidential analysis of th e factors required by the Agreement taking into
account the non-disclosure requirements of Article 3.2 and the guidance of the Panel in US – Steel
Safeguards.

58. As the public summary makes clear, Ukraine an alysed the data trends over the course of the
period of investigation for each factor indicated in Article 4.2 and provided a result of such analysis
in the Key Findings, Notice and the WTO Notification. Each factor evidences the "the worsening
financial and economic condition of the domestic producers" over the course of the period
investigation. The potential for significant injury is shown in each factor that decreased
significantly from 2008 to 2010.

59. Nevertheless, it was found by investigating authorities that while all the factors confirm the
worsening condition of the domestic industry, the high standards of material deterioration due to
the increase in imports put by the wording of the "serious injury" criterion established by the
Agreement could not be met incontestably.

60. The standards concerning the current deterioration of the domestic industry under the
"threat of serious injury" are lower if such threat is shown to be imminent. Appellate Body stated
in its report in US – Line Pipe that "defining 'threat of serious injury' separately from 'serious
injury' serves the purpose of setting a lower threshold for establishing the right to apply a
safeguard measure."

- B-26 -

61. Ukraine did find that the worsening of all the relevant factors of an objective and
quantifiable nature coupled with a significant ex port potential of the notable exporters of motor
cars into Ukraine can qualify as a "threat of serious injury".

62. As was concluded by the investigating authority, the significant worsening of domestic
industry (including the major increase in the ma rket share) was a consequence of the increasing
imports at that moment. Ukraine analysed the capacity in the exporting countries, they had
significant available productive capacity ready to be exported to Ukraine.
63. The significant export potential of the exporting countries led the investigating authority to
believe that the import trends then present would continue and cause even more significant
deterioration of the domestic industry. The foreign industries referred to in the Notice are
responsible summarily for more than 90 per cent of Ukrainian motor car imports; their orientation
on exports and free additional capacity could be directed to Ukraine.
64. As the share of specific importing countries in the total imports was not expected to change
notably and the total exports from these countries was supposed to increase, the amount of
exports from these countries to Ukraine was supposed to grow majorly as well.
65. Therefore, Ukraine not only analysed the inju ry factors to conclude the fact of imminent
serious injury, but also included the export potential of the exporting countries in its analysis.

66. Ukraine provided an adequate public summary of its reasoned and adequate explanation of
how the seven injury factors were examined and applied in the injury investigation. Ukraine's
analysis of the domestic passenger car industry in absolute figures, however, was confidential. In
its Key Findings, Notice and notification to WTO Ukraine provided a public summary of its
confidential analysis. Ukraine followed the guidance of the Panel in US – Steel Safeguards , which
discussed a way to provide the relevant explanations while addressing the confidentiality issues.

67. In order to protect the domestic passenger car industry's confidential information about
sensitive technological, productive, managerial, financial and aspects of its activity that may cause
a damage to the commercial interests of the compan y if disclosed, the results of the quantitative
and qualitative evaluation of threat of serious injury to the domestic industry were not presented
by the investigating authority in absolute terms. Acknowledging the need to disclose as much
relevant information as possible, the investigating authority published the indexed results of the
conducted analysis of injury factors. Therefor e, Ukraine addressed the requirements of both
Articles 3.1 and 4.2(c) of the Agreement as much as it was possible in these circumstances.

c. Conclusion
68. For all of the reasons above, it is clear that a proper determination of threat of serious injury
was made and that all relevant factors were examined. All of Japan's claims under Articles 2.1,
3.1, 4.1(a), 4.1(b), 4.2(a), 4.2(b), 4.2(c) and 11.1(a) of the Agreement and Article XIX:1(a) of
GATT 1994 must therefore be rejected.
6. Japan's claim that Ukraine violated Articl es 2.1, 3.1, 4.1(a), 4.1(b), 4.2(a), 4.2(b),
4.2(c) and 11.1(a) of the Agreement on Safeguards and Article XIX:1(a) of the GATT
1994 in its determination of the causal link between the increase in imports and the
serious injury or threat of injury is flawed.
a. Introduction
69. Ukraine fulfilled its obligations as it demons trated the existence of a causal link between
increased imports and serious injury or threat thereof and ensured that the injury caused by
factors other than the increased imports is not attributed to the increased imports.

70. Alleged violations of Article XIX:1(a) of the GATT 1994 and Articles 2.1, 4.1(a), 4.1(b),
4.2(a), 4.2(b) and 11.1(a) of the Agreement claimed by Japan are without merit. Consequential
arguments that the lack of reasoned conclusions on this issue is a violation of Articles 3.1 and
4.2(c) of the Agreement must therefore fail as well.

- B-27 -

b. Legal argument
71. Ukraine conducted the causation analysis required by Article 4.2(b). During the
investigation, Ukraine "established that the volume of the Product under investigation imported
into Ukraine has been growing throughout the period of investigation in relation to production
volume of the domestic industry". Ukraine also recognized that although imports of passenger cars
decreased by 71 percent from 2008 to 2010 in absolute terms, imports increased by 38 percent
relative to the Ukrainian domestic passenger car production. These data demonstrated that,
although there was a decline in the passenger car across the market, imports were still able to
increase in relation to domestic production.

72. During the investigation, Ukraine found that although the imports decreased in absolute
terms, the volume of the product under investigation imported into Ukraine has been growing
throughout the period of investigation relatively to the production volume of the domestic industry
and the domestic consumption.

73. Ukraine recognized that although imports of passenger cars decreased by 71 per cent from
2008 to 2010 in absolute terms, imports increased by 37.9 per cent relatively to the Ukrainian
domestic passenger car production and by 37.1 relatively to domestic car consumption. These data
demonstrated that imports were still able to increase in relative terms.

74. Ukraine found that the consumption of passenger cars fell by 78.8 per cent between 2008
and 2010 while the domestic producers' market share fell by 35 per cent over the same period and
concluded that, in light of the increase in imports relative to production volumes and the conditions
of such imports, the domestic passenger car indu stry was driven out of the Ukrainian market by
imports. The growing market share of imports resu lted in "a worsening of the poor state of the
domestic industry and a threat of serious injury in the future".

75. It was for Japan to demonstrate that despite this clear correlation, the causation analysis of
Ukraine was lacking. In addition, the conditions of competition between the domestic products and
the imported products were such that there cannot be any doubt about the direct effect in terms of
sales between the two. The genuine and substantia l relationship of cause and effect between the
increase in imports and the threat of serious injury cannot be in doubt.

76. The investigating authority concluded that the domestic product has characteristic features
that are very similar to the characteristic features of the product that was the subject of
investigation, and therefore can be considered to be a "similar good" within the meaning of the
provisions of the Agreement and the Law. Moreover , the relatively narrow definition of the good
under investigation and its high similarity to the imported good led the investigating authority to
believe that the imports and the domestic produc tion are engaged in a clear direct competitive
relationship and can be easily substituted for each other.

77. Such a relationship means that because the importers and domestic industry are competing
for a contracting domestic market, any change in market share taken by imports has an obvious
and direct influence on the demand for the produc tion of the domestic industry, its financial and
economic state. Therefore, the conditions of co mpetition between the domestic products and the
imported products were such that there cannot be any doubt about the direct effect in terms of
sales between the two. Japan has failed to provide evidence that imported and domestic passenger
cars covered by the investigation were not in direct competition.

78. Moreover, as far as it concerns the other claims of Japan Ukrainian investigating authorities
conducted a proper non-attribution analysis.

79. As such, Ukraine recognized that the decrease in consumption caused by global financial
crisis was an objective factor that influenced every industry in Ukraine and abroad. As the
deterioration of automotive industry is more significant than it was expected from Ukrainian
industry or a car producer in any other country, it was concluded that the decrease in consumption
could be responsible for only a limited part of the injury to the national industry.

80. Regarding the abolition of government support in 2008 and the corresponding deficient
competitiveness of the domestic products, the investigating authority noted that these factors
could cause the deterioration of the domestic industry, but cannot explain the coinciding increase

- B-28 -

of imports. It was also noted that the governme nt support of motor car producers ended before
2008 and the investigation authority did not consider earlier data. The deterioration of the
domestic industry could be attributed to the sudden lack of competitiveness caused by abolition of
government support if the investigation period incl uded 2007, but the claim that it could influence
the domestic industry negatively after 3 years later is presumptuous.

81. As for the imposition of the additional 13 % import surcharge imposed on the imports of
motor cars under the WTO Balance of Payments mechanism, Ukraine has noted that this surcharge
could have influenced the extent of injury caused to the domestic industry only in a limited way as
it was in force only during a short period from March till September 2009 and therefore could not
be attributed to the trends in 2008 and 2010. The countries unaffected by this duty were the
Members of CIS FTA, the Russian Federation with a 30 % share of total imports in 2009.

c. Conclusion
82. For all of these reasons, Japan's claim of violation of Articles 2.1, 3.1, 4.1(a), 4.1(b), 4.2(a),
4.2(b), 4.2(c) and 11.1(a) of the Agreement and Article XIX:1(a) of the GATT 1994 must be
rejected. Ukraine determined that there was a clea r causal link between the increase in imports
and the injury to the directly competitive domestic industry and ensured that any injury caused by
other factors was not attributed to the increased imports.
7. Japan's claim that Ukraine violated Articles 5.1, 7.1, 7.4 and 11.1(a) of the Agreement
on Safeguards and Article XIX:1(a) of the GA TT 1994 in relation to its imposition of the
measures to the extent necessary to prevent or remedy serious injury and to facilitate
adjustment is without merit
a. Introduction
83. Ukraine acted in accordance to Article XIX:1(a) of the GATT 1994 and Articles 5.1, 7.1, 7.4
and 11.1(a) of the Agreement by applying the safeguard measures only to the extent necessary to
prevent the threat of serious injury: the duty level and the length of the application was
appropriate, as well as the progressive liberalization of the measure.

b. Legal argument
84. Ukraine clearly took into account the level of causal impact of the increase in imports on the
serious injury to the domestic industry when it se t the level of duty, the duration of the measure,
and the scheme for progressive liberalization of the measure allowing the domestic industry to
adjust.

85. Ukraine's measure is imposed strictly to the extent necessary to remedy the serious injury.
It was therefore appropriate to apply a rate of duty sufficient to remedy the entirety of the serious
injury that was threatened to be caused by the increased imports.

86. The investigation of the injury revealed that the level of duty requested by the domestic
industry (33.4 to 47 per cent), which is comparable to the deterioration of the domestic industry,
was excessive in light of the effect on the impo rts and the possibility of imposing a lesser duty
sufficient to remedy and prevent the serious injury. Therefore, a level of duty of only 6.46 to 12.95
per cent was imposed.

87. Japan claimed that this level of duties is excessive as it was seemingly understood by Japan
that to prevent the whole deterioration to the domestic industry.

88. However, Ukraine wants to recall the explanat ions of the Appellate Body in US — Line Pipe,
which concluded that although the "serious injury" in Article 5.1 and Article 4.2 was "one and the
same", the phrase "only to the extent necessary to prevent or remedy serious injury and to
facilitate adjustment" in Article 5.1, first sentence, must be read as requiring that safeguard
measures may be applied "only to the extent that they address serious injury attributed to
increased imports", not "all serious injury".

89. It must be emphasised that these duties were imposed on such a level that was intended
only to prevent the imminent serious injury. That was the reason why Ukraine did apply safeguard

- B-29 -

measures only 6.46 to 12.95 per cent, but not the requested 33.4 to 47 per cent: the latter duty
could stop the deterioration of the domestic industry but would definitely be in excess of the
extent necessary to prevent the serious injury caused by the increase in imports.

90. Thus, Ukraine acted in accordance with Arti cle XIX:1(a) of the GATT 1994 and Article 5.1 of
the Agreement.

91. Second, the duration of the measure was determ ined to be strictly necessary to remedy the
amount of serious injury. Due to the high level of serious injury a safeguard measure of sufficient
duration to remedy the injury and to allow the industry to adjust was required.

92. Importantly, Ukraine once again did not go to the maximum of what it was entitled to do. It
did not impose a measure for four years as possible under Article 7.4 of the Agreement, but
imposed a measure of a shorter duration of three years only. In addition, it provided for a rapid
and steep liberalization of the measure, again going well beyond what it is required to do. Thus the
measure is in line with Article XIX:1(a) of the GATT 1994 and Article 7.1 of the Agreement, and is
not more restrictive than necessary.

93. Third, the three-year measure triggered th e requirement to progressively liberalize the
measure over its full duration. Ukraine satisfied that requirement by implementing a plan of
progressive liberalization that provided for a step-wise reduction in the duty level after 12 months
and then after 24 months of the application of the safeguard measures.

94. Article 7.4 of the Agreement stipulates that a Member imposing a safeguard measure "shall
progressively liberalize it at regular intervals during the period of application". This substantive
obligation to liberalize a safeguard measure of gr eater than three years duration is of course
related to the procedural requirement to notify a timetable for liberalization to the WTO Committee
on Safeguards. However, the obligations are different. In this context, the substantive obligation
to liberalize a measure at regular intervals requires a plan that is put into place and then
implemented. The timing for notification of the ti metable to the WTO is a separate obligation that
must be addressed separately under Article 12.2.

95. Hence, Ukraine satisfied the Article 7.4 requ irement by implementing a plan of progressive
liberalization. The plan provided for a step-wise re duction in the duty level by the third after 12
months of implementation and then 24 months. By devising, implementing and notifying this plan,
Ukraine has satisfied its obligation under Article 7.4 of the Agreement.

c. Conclusion
96. The safeguard measure was applied by Ukraine to facilitate adjustment in its every relevant
aspect: level and duration, and scheduled progressive liberalization. The measure eases the
process of economic adjustment to the competition of the domestic industry.

97. Thus, by taking into account all of these factors, Ukraine's investigation and determination
are in line with Articles 5.1, 7.1, 7.4 and 11.1(a) of the Agreement.
8. Japan's claim that Ukraine violated Ar ticle II:1(b) of the GATT 1994 is a merely
consequential claim that has to be rejected
98. Japan claimed that that Ukraine violated Article II:1(b) of the GATT 1994 by applying an
unjustified safeguard measure and therefore imposing a tariff higher than the bound rate is not
supported by the evidence.

99. A safeguard measure, implemented in accord ance with Article XIX of the GATT 1994 and the
Agreement, are permitted as "emergency action on imports of particular products".

100. As Ukraine's measure is a lawful safeguard measure applied under XIX of GATT 1994 and
the Agreement that appropriately applies a separate form of duty on particular products to prevent
or remedy serious injury or threat thereof caus ed by increased imports, it does not violate
Article II:1(b) of the GATT 1994. Because Japan's predicate claims above must fail, so must fail
this consequential claim.

- B-30 -

101. Therefore Ukraine acted in accordance to Ar ticle II:1(b) of the GATT 1994 by imposing a
safeguard measure according to Article XIX of GATT 1994 and the Agreement.
9. Japan's claim that Ukraine did not comply with the notification requirements under
Articles 12.1 and 12.2 of the Agreement on Safeguards is in error
a. Introduction
102. Ukraine notified the Committee on Safeguards "immediately" under Article 12.1 of the
Agreement upon initiating the safeguard investigation, making a finding of serious injury and of
taking a decision to apply measures. Japan's clai ms are not supported by the evidence and should
be rejected.

b. Legal argument
103. All notifications made by Ukraine were as immediate as possible in the light of the Ukrainian
language not being an official WTO language. Ukraine has satisfied its notification obligations
under the Agreement and Japan's claims to the contrary must be rejected.

104. As to the Article 12.1(a) requirement to noti fy the initiation of the investigation, Ukraine
took the decision to initiate the investigatio n on 30 June 2011, published that decision on
2 July 2011, and notified the WTO on 13 July 2011. Ukraine submits that eleven days after
publication of the notice about the decision to initiate is clearly "immediate" notification in
accordance with Article 12.1 (a).

105. As to the Article 12.1(b) requirement to notify the injury determination and the
Article 12.1(c) requirement to notify the decision to impose a measure, Ukraine took a decision on
28 April 2012, published the Notice about that decision on 14 March 2013, notified the WTO on
21 March 2013, and made the measure effective on 14 April 2013.

106. Ukraine considers that the 28 April 2012 date ca nnot be viewed to be the triggering event of
taking a decision. According to the Ukrainian Safeguard Law, the investigation is finished after the
relevant decision of the Commission is taken. The decision itself, however, is the document of
internal use and cannot be viewed as an appropriate legal document until the official publication of
the notice about the decision is made. Thus, it is the decision to publish the notice (and thus to
allow its entry into force thirty days later) that is the key decision for purposes of timeliness of
Ukraine's Article 12.1(b) and (c) notifications.

107. The publication of the Notice, which provides findings and reasoned conclusions reached on
all pertinent issues of fact and law under Articl es 3.1 and 4.2 of the Agreement that makes the
subsequent application of the safeguard measure imminent, is a key event for purposes of
timeliness of Ukraine's Article 12.1(b) and (c) notifications.

108. Thus, given the triggering event occurred on 14 March 2013 and the notification to the
Committee on Safeguards came on 21 March 2013, the notification seven days later is
"immediate" in the sense of Article 12.1.

109. Regarding the requirement to give all pertinen t information in the Article 12.1(b) notification
of injury/threat determination, the Appellate Body has focused on the need to provide the
information listed in Article 12.2 as well as information concerning the injury factors in
Article 4.2(a). The Appellate Body in Korea – Dairy described "an intermediate position between
notifying the full content of the report of th e competent authorities and giving the notifying
Member the discretion to determine what may be included in a notification".

110. These notifications sufficiently described the measure, which had not yet entered into force.
Ukraine also notes that it is relevant that it had also provided Japan with the Key Findings, which
provided it with information to undertake consultations, as is the stated purpose of the Article 12.1
notification requirements before the consultations and sent a number of letters over the period of
25 August 2011 to 25 March 2013. This is important given that, as confirmed by the Appellate
Body in Korea – Dairy , another purpose of the notification of the finding of serious injury and of
the proposed measure is to inform Members of th e circumstances of the case and the conclusions
of the investigation together with the importing country's particular intentions with a view to

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allowing "any interested Member to decide whether to request consultations with the importing
country which may lead to modification of the proposed measure(s) and/or compensation". Japan
had the information it needed and did consult with Ukraine back in 2012 based on the information
that was made available.

c. Conclusion
111. Ukraine's notifications relating to the investigation on passenger cars to the WTO Committee
on Safeguards were timely and of sufficient content so as to be found consistent with its WTO
obligations. For all of the above reasons, Ukraine considers that Japan's notification claims under
Articles 12.1 and 12.2 of the Agreement must fail.
10. Japan's claim that Ukraine did not comply with the requirements of Article 12.3 of
the Agreement on Safeguards is without merit.
a. Introduction
112. Japan's claims under Article 12.3 of the Agreement that Ukraine's consultations process
violated its obligations must fail for two reasons: Ukraine did provide an adequate opportunity for
prior consultations after its notification to the Committee on Safeguards, and the consultations
that Ukraine held with Japan on 19 April 2012 were clearly sufficient to fulfil the requirements of
the Agreement.

b. Legal argument
113. The requirement for consultations thus builds on an exchange of the information provided in
Article 12.2. Ukraine consider highly relevant the fact that the consultations must be based on the
"information provided under paragraph 2" and not on the Article 12.1 notification itself. Thus, if an
interested Member has received the information th at is (subsequently) covered by an Article 12.1
notification, then that is sufficient to allow for proper consultations in satisfaction of the Article
12.3 obligation and Article XIX:2 of GATT 1994.

114. Contrary to Japan's claims the wording of the Appellate Body in US – Wheat Gluten clearly
states that the information required to be provided under Article 12.2 is not a simple equivalent to
the notifications under Article 12.1 of the Agreement, but the information that is needed to enable
meaningful consultations to occur under Article 12.3.

115. Ukraine argues that Japan's focus on the Arti cle 12.1 notification of the pertinent information
given in Article 12.2 is misplaced. Ukraine provided Japan with the relevant information on its
proposed measure prior to either the decision taken on 28 April 2012 or to the decision to publish
that measure on 14 March 2013.

116. This requirement for consultations thus builds on an exchange of the information provided in
Article 12.2. Ukraine consider highly relevant the fact that the consultations must be based on the
"information provided under paragraph 2" and not on the Article 12.1 notification itself. Thus, if an
interested Member has received the information th at is (subsequently) covered by an Article 12.1
notification, it is sufficient to allow for proper consultations in satisfaction of the Article 12.3
obligation.

117. Japan and Ukraine held substantive consultations under Article 12 on 19 April 2012, after
which the originally proposed level of 15.1 per cent duty for cars with engine volumes in the range
of 1500 cm
3 – 2200 cm 3 was reduced to 12.95 per cent. Japan's claims that the information
provided before the consultation was incorrect due to this liberalization and thus does not provide
an opportunity to hold a meaningful consultations are faulty.

118. Ukraine also notes that additional consultations (after the Notice was published and before
the safeguard measures entered into force) on th is issue between the Ukrainian officials and the
representative of the Ministry of Economy, Tr ade and Industry of Japan took place on the
09 April 2013.

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c. Conclusion
119. In light of these facts which confirm that the substance of the information obligation of
Article 12.3 was met, and the lack of any harm or prejudice to Japan in undertaking effective
consultations given the positive result of the 19 April 2012 consultations with Japan, Ukraine has
fulfilled its obligation under Article 12.3 of the Ag reement. Ukraine therefore requests the Panel to
reject all of Japan's claims under Article 12.3 of the Agreement.
11. Japan's claim that Ukraine violated Article 12.5 of the Agreement on Safeguards is to
be rejected
120. Japan's argument that Ukraine did not notify immediately the results of the consultations to
the Committee on Safeguards, thereby violating Article 12.5 of the Agreement, is faulty.

121. However, Ukraine asserts that this provision imposes an obligation on the "Members
concerned" in the plural. A Member, like Japan, that has not itself complied with this obligation is
estopped from complaining about an alleged violation of this notification obligation.

122. If Ukraine decided to provide any kind of concessions to compensate for the safeguard
measures and thus noticeably influencing its trade regime, such concessions would be notified to
the Council for Trade in Goods.
12. Japan's claim that Ukraine did not endeav our to maintain a substantially equivalent
level of concessions and therefore violated Article 8.1 of the Agreement on Safeguards is
in error
a. Introduction
123. Ukraine has always endeavoured to maintain a substantially equivalent level of concessions
and other obligations to that existing under GATT 1994 between it and Japan as well as with the
other exporting Members and acted in accordance to Article 8.1 of the Agreement.

b. Legal argument
124. It is important that consultations took place in April 2012 already well before the
implementation of the measure and the Members concerned were properly informed about the
proposed measure beforehand. Japan's claim must be rejected for that reason alone.

125. In addition, Article 8 must be read in a ho listic manner. There is no "violation" of a legal
provision requirement, if the legal provision itself provides for a balancing mechanism as does
Article 8. Indeed, Article 8.2 provides that, if there was no agreement following consultations, the
affected exporting Members shall be free, not late r than 90 days after the measure is applied, to
suspend the application of substantially equivalent concessions or other obligations under GATT
1994, to the trade of the Member applying the safeguard measure.

126. Unlike other WTO Members Japan took a passive stance and did not execute its right to
balance the influence of the safeguard measure.

c. Conclusion
127. Ukraine considers that sufficient consultations were held and that it always endeavoured to
maintain an equivalent level of concessions with Japan such that Article 8.1 cannot be said to have
been violated. In addition, given the available op tion of approved self-help, Japan's claim of a
violation of Article 8.1 is without merit.
III. Conclusions
128. As was just presented, the imposition of the challenged safeguard measures and the
respective safeguard investigation were conducted by Ukrainian investigating authorities in full
compliance with the substantive and procedural requirements for the adoption of safeguard
measures in the Agreement and Article XIX of GATT 1994.

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129. Specifically, all of the required substantive conditions of Article 2 of the Agreement were
met, and the circumstances referred to in Article XIX of GATT 1994 existed as a matter of fact.
Moreover, all the procedural obligations concerning the safeguard investigation under Article 3 and
4 of the Agreement were met. Therefore, Ukraine had a right to impose the challenged safeguard
measure on certain passenger cars.

130. Furthermore, Ukraine correctly applied the me asure in the context that it was imposed only
to the extent necessary to remedy the threat of serious injury and to facilitate adjustment, as
required by Article 5 of the Agreement. The de crease of the proposed safeguard duty level
following the April 2012 consultations and the subs equent 2014 liberalization of the measure are
evidence of Ukraine's good faith.

131. Finally, a number of procedural obligations rela ting to the notification and publication of the
measure and consultations at certain stages of the process imposed by the Agreement were also
duly met by Ukraine during the investigation.

132. Therefore, Ukraine applied the safeguard meas ures on the imports of passenger cars into
Ukraine in strict accordance with the Agreement, Articles XIX and II of GATT 1994. While some
aspects and procedures are not explicitly or implicitly stipulated by the relevant WTO jurisprudence
the investigating authority used a guidance of Ukrainian domestic regulations or acted in good
faith on its own discretion.

133. For all of the above reasons, Ukraine requests that all of Japan's claims be rejected.

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ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Australia C-2
Annex C-2 Integrated executive summary of the arguments of the European Union C-5
Annex C-3 Oral statement of Korea, Republic of C-10
Annex C-4 Integrated executive summary of the arguments of Turkey C-12
Annex C-5 Integrated executive summary of the arguments of the United States C-16

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ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA
I. DELAY IN APPLYING A SAFEGUARD MEASURE SUGGESTS THAT "SUCH INCREASED
QUANTITIES" OF IMPORTS DO NOT EXIST RECENTLY EN OUGH AS TO CAUSE OR
THREATEN TO CAUSE SERIOUS INJURY
1. The Agreement on Safeguards and Article XIX of the General Agreement on Tariffs and Trade
1994 (GATT) together establish that safeguard measures are temporary emergency actions that
can only be taken where necessary to prevent or remedy serious injury caused by a surge in
imports.1 Safeguard measures give domestic industry the opportunity to adjust to different
economic conditions by temporarily restricting import competition.

2. If an investigation finds that a safeguard measure is necessary, a delay in applying the
safeguard measure following that investigation may raise doubt as to whether the imposition of
the measure is justified. A delay may mean that the increase in imports that originally supported
the imposition of the measure is no longer rece nt enough to justify an emergency measure to
remedy "increased imports".

3. Australia accepts that the Agreement on Safeguards does not establish a specific timeframe
for the imposition of a safeguard measure once the requisite determinations have been made.
However, the conclusion that a delay may render the safeguard measure inconsistent with the
Agreement on Safeguards is implicit in the requirements that the increased imports be recent, that
such imports have caused or threatened to cause serious injury and that a safeguard measure is
imposed only to the extent necessary to remedy this injury.

4. The Appellate Body in Argentina – Footwear (EC) found that the language "such increased
quantities" in Article 2.1 of the Agreement on Safeguards requires that the increase in exports
"must have been recent enough, sudden enough , sharp enough and significant enough, both
quantitatively and qualitatively, to cause or threaten to cause 'serious injury'."
2 The Appellate Body
also noted that "the phrase, 'is being imported' implies that the increase in imports must have
been sudden and recent."
3 Australia agrees with these findings.

5. In Australia's view, the language of Article XIX:1(a) of the GATT, Article 4.2(b) of the
Agreement on Safeguards and Appellate Body jurisprudence 4 support the view that the injury
s u f f e r e d , o r t h r e a t t h e r e o f , m u s t b e r e c e n t i n o r d e r t o j u s t i f y t h e i m p o s i t i o n o f s a f e g u a r d
measures. That is, the serious injury must have been caused by a recent increase in imports, and
must therefore logically also be recent itself. This is consistent with the Appellate Body's finding in
Argentina – Footwear (EC) that safeguard measures be "emergency actions".
5

6. Similarly, suspending the application of a safeguard measure following a determination of
serious injury would indicate that there was no longer a need to prevent or remedy serious injury
or to facilitate adjustment. The subsequent reapp lication of the safeguard measure after one year
would also raise doubts as to whether the same serious injury (or threat thereof) still existed.

7. In addition, if the serious injury or the thre at thereof is not recent, it may be difficult to
show that the measure is still "necessary" to prevent or remedy serious injury or facilitate
adjustment within the meaning of Articles 5.1 and 7.1 of the Agreement on Safeguards. In
particular, noting that safeguard measures are intended to be emergency actions to prevent or
remedy injury, a delay before the safeguard measure is applied suggests that there may no longer
be the urgency that previously necessitated such a measure.

1 Appellate Body Report, United States – Steel Safeguards, para. 331.
2 Appellate Body Report, Argentina – Footwear (EC), para. 131.
3 Ibid., para. 130.
4 Ibid.
5 Ibid., paras. 93-94.

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8. If a Member decides to extend a safeguard me asure during its four year application period,
the authorities must show that it continues to be necessary under Article 7.2 and in conformity
with the procedures set out in Articles 2, 3, 4 and 5. That is, the authorities must demonstrate
that the emergency measures continue to be justified due to a serious injury or threat thereof
caused by increased imports.

9. Finally, Australia notes that the extent to which a delay in application of the safeguard
measure renders it inconsistent with the requirements of the Agreement on Safeguards will largely
depend on the facts of each case.

II. NOTIFICATION OF SAFEGUARD MEASURES
10. Article 12.1 of the Agreement on Safeguards creates three discrete obligations for Members
to immediately notify the initiation of a safeguard investigation and the reasons for initiation; any
findings of serious injury or threat of serious injury caused by increased imports; and any decision
taken to apply or extend a safeguard measure. Australia understands a "finding" under
Article 12.1(b) to mean a determination within the meaning of Article 2 of the Agreement on
Safeguards made pursuant to an investigation under Article 3 that a product is being imported into
its territory in such increased quantities, absolute or relative to domestic production, and under
such conditions as to cause or threaten to cause serious injury to the domestic industry that
produces like or directly competitive products.

11. Article 12.2 of the Agreement on Safeguards sets out further requirements for Members
when making notifications referred to in Article 12.1, including the provision of a "timetable for
progressive liberalization." Australia notes that the Appellate Body in United States – Wheat Gluten
specifically clarified that the notification obliga tions set out in Articles 12.1(b), 12.1(c) and 12.2,
although related, are discrete.
6

12. Australia emphasises the importance of not co nflating the requirements of Articles 12.1(a),
12.1(b) and 12.1(c). The initiation of an investigation, the making of a finding that domestic
industry has suffered a serious injury or is suffering from the threat of a serious injury caused by
increased imports, and the decision of a government to apply a safeguard measure based on those
findings, are three discrete matters. Immediate no tification of each of these actions to the
Committee on Safeguards is important in order to preserve the transparency of emergency
safeguard measures and to ensure that WTO Members are able to monitor the progress of
safeguard investigations and measures.

13. In Australia, the Productivity Commission is the competent authority that undertakes
safeguard investigations following referral from the Australian Government. The Productivity
Commission's report on its findings and recommendations is submitted to the Australian
Government upon completion of its investigation. Under the Productivity Commission Act 1998
(Cth), the Productivity Commission must table and make public its report within 25 sitting days of
Parliament. Australia's practice has been to publish the report within a timeframe ranging between
the same day or up to three days with notification to the WTO on the same day.

14. The Productivity Commission's findings and recommendations are not legally binding. As
such, the Australian Government may choose not to accept the Productivity Commission's
recommendation to impose a measure.

III. REQUIREMENTS FOR THE PUBLICATION OF A REPORT CONTAINING THE FINDINGS
OF THE SAFEGUARD INVESTIGATION
15. Together, Articles 3.1 and 4.2(c) establish that the report of the competent authorities,
setting out the findings and reasoned conclusions resulting from the investigation, must be
published promptly and should include a detailed analysis of the investigation and the factors
examined. Australia emphasises that these two requ irements cannot be read in isolation from one
another.

16. Given that Article 12 contains discrete obligations to notify both the findings of the
competent authority and the government's decision to apply a safeguard measure, the obligation

6 Appellate Body Report, United States – Wheat Gluten, para. 124.

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to publish a report in Article 3.1 is clearly distinct from the timing of any subsequent decision to
apply a safeguard measure and related notification requirements. It is important not to conflate
the obligations to publish a report of the findings of the safeguard investigation; to notify the
Committee on Safeguards; and to notify Members with a substantial interest as exporters of the
relevant product if a safeguard measure is actually adopted under Article 12.1 and 12.3. For
instance, WTO Members are still required to publish the findings of their investigation where these
findings reflect that a safeguard measure is not justified.

IV. ADDITIONAL OBSERVATIONS AS TO THE SCOPE OF THE SAFEGUARD MEASURE
17. In addition to the conditions of Article 2.1, Australia notes the more detailed requirements of
Article 4.2(a) and (b) of the Agreement on Safeguards in relation to injury and causation.

18. Following the initial application of the safeguard measure, Ukraine appears to have removed
the measure from a subset of the products on which its original determination was based.
7 This
raises the question of whether injury caused by the increase in imports of the remaining products
would have, by itself, justified the imposition of the measure.

7 Ukraine's Notification to the WTO, G/SG/N/10/UKR/3/Suppl.1, 22 May 2013.

- C-5 -

ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION
1. The EU welcomes the adoption of BCI procedures in this case. We consider that BCI procedure
should be broadly similar in all trade remedy cases and that ADA and ASCM BCI procedures should
be aligned on those adopted in the present case. Members submitting BCI are not required to
obtain prior written authorisation from any firm. They should not be obliged – merely encouraged
– to follow the confidentiality designation given by the investigating authority. Not only parties, but
also panels and third parties should have the right to challenge BCI designation.

2. Art. 3.1 AoS, first sentence, does not contain any express obligation that the investigation be
objective. However, the term "investigation" implies objectivity, and this is confirmed by the use of
the term "objective" in other provisions of the AoS. Art. 3.1, first sentence, does not contain any
express obligation regarding the time between the end of an investigation period and the entry
into force of a safeguard measure. Investigating authorities thus have a discretion with respect to
this matter, albeit not one that is unfettered. There should not be an excessive period between the
end of an investigation period and the initiation of an investigation, the determination, or the
application of the measure, particularly given the emergency nature of safeguard measures. Up-
dated data should be accepted as long as this remains possible, subject to the requirements of due
process. The determination and application of a measure should be based on sufficiently recent
data. In this respect, the ADA and ASCM provide relevant context.

3. There is a difference between determination and application, but they are not clinically
isolated. As a gap opens up, the investigation and determination may no longer support the
application. The situation is not analogous to a Me mber deciding to apply or not to apply a bound
tariff rate. In the case of a contingent trade remedy a Member only has a right to apply the duty if
certain conditions are present. If those conditions are not present, there is no right to apply the
relevant duty. There is a textual connection between investigation and application in Art. 5(1) of
the AoS, which refers to "the last three representative years".

4. For example, assume a data-lag of three months. Imports of the relevant product are:
2010 (95), 2011 (0), 2012 (105), 2013 (100). There is a sudden increase in imports in the first six
months of 2014. An investigation is initiated on 1 July 2014 (based on data for January to
March 2014). The record closes on 1 October 2014 (with data for the first six months of 2014
confirming the sudden increase). The measure is adopted and applied on 1 January 2015. The
quantitative restriction is 100 based on "the aver age of the last three representative years". 2011
(where there was an unrelated exogenous shock) is rejected as unrepresentative. The first six
months of 2014 are not representative, because they constitute the sudden increase being
investigated. Data for the second six months of 2014 is, quite properly, not on the record. The
measure is consistent with the AoS. Now assume there is a gap of one year between adoption
(1 January 2015) and application (1 January 2016). At the moment of application
(1 January 2016) the quantitative restriction must be based on the last three representative years.
Otherwise, there may be a breach of Art. 5.1, but also a breach of Art. 3.1, contextually informed
by Art. 5.1. We would apply the same logic to suspension and un-suspension.

5. The EU observes that the AoS does not contain any further elaboration of the term
"reasonable public notice". It may reasonably be understood in light of the context provided by the
ADA and the ASCM. One would expect the publicatio n of a document providing reasonable notice
of the investigation to all interested parties. The term "interested parties" in the AoS should be
understood to include the exporting Member. The EU doubts that Ukraine's notice complied with
these requirements. Further, we observe that the obligation to publish a report setting forth the
findings and reasoned conclusions reached on all pertinent issues of fact and law, in conjunction
with the obligation of notification under Art. 12. 2, should also serve the purpose of Art. 12.3 of
providing an adequate opportunity for prior consultations with those Members having a substantial
interest as exporters, including with respect to the compensation provided for in Art. 8.1. The EU
is not persuaded that these requirements were satisfactorily complied with in this case.

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6. A failure to publish the report/analysis constitutes a breach of the procedural obligations in
Arts. 3.1 and 4.2(c). The EU suggests that the Panel also assess the WTO consistency of the
report/analysis. If the Panel determines that the report/analysis is inconsistent with one or more
other procedural or substantive obligations, it would be appropriate to include such findings in the
Panel's report.

7. The temporal parameter regulating the pub lication obligation is the term "promptly" in
Art. 4.2(c) of the AoS. This term refers to pub lication after some other event. Such other event is
not the application of a safeguard measure, becaus e that would imply an element of retroactivity.
W e s u g g e s t a n h a r m o n i o u s r e a d i n g w i t h A r t . X o f the GATT. Pursuant to Art. X:1 of the GATT
publication must be made "promptly", meaning promptly following the determination itself.
However, under Art. X:2, enforcement can only occur on or after publication. Consequently,
Art. 4.2(c) of the AoS requires publication promptly following the determination that the conditions
justifying the use of a safeguard measure are present, and the form that such safeguard measure
would take.

8. The Appellate Body has clarified that, in order for a safeguard measure to be imposed, it must
be demonstrated that there are unforeseen deve lopments resulting in increased imports. The
measure at issue does not state that the increased imports are the unforeseen developments, but
rather that the unforeseen developments are expl ained by the increased imports. This may be
taken to mean that the unforeseen developments are evidenced by the increased imports, in the
sense that the unforeseen developments have resulted in the increased imports. However, there is
no express reference to the global financial crisis.

9. The measure at issue must contain a reasoned and adequate explanation regarding the
existence of unforeseen developments, sufficient for the importing Member to understand and
contest if it so wishes. In the municipal proceedings, such unforeseen developments must be
demonstrated to have existed pursuant to evid ence on the record. Such evidence should be
referenced in the measure or be on the record and adduced by the importing Member to the Panel,
at its own initiative or on request.

10. The term "result" in Art. XIX:1(a) of th e GATT 1994 supports the view that there must be a
logical connection or causal link between th e unforeseen developments and the increase in
imports. One way of getting at the question of whether or not there is such a link is to look at the
question of whether or not the unforeseen developments have modified the competitive
relationship between imported and domestic products, causing a decrease in domestic sales. The
causal link should be genuine and substantial. Non-attribution factors, including foreseen or
foreseeable developments, should be discounted.

11. The unforeseen developments must be unfor eseen at the time of the negotiations, and
specifically when they close. In the event of a difference, we wo uld agree that the latter date
provides a better guide.

12. The obligations in Art. 12 to notify and provide opportunities for consultations are an integral
part of the transparency process related to the adoption of safeguards. The Appellate Body has
clarified that the notification obligations set out in Arts. 12.1(b), 12.1(c) and 12.2, although
related, are discrete. The action of initiating an investigation, the action of an investigatory
authority coming to a finding that a domestic industry has suffered serious injury or is suffering
from the threat of serious injury caused by increased imports, and the decision of a government to
apply a safeguard measure based on those findings, are separate matters. Each of these actions
must be immediately notified to the Committee on Safeguards.

13. Ukraine did not make an immediate notification of the initiation of a safeguard investigation
under Art. 12.1(a). Furthermore, Ukraine also notified its safeguard investigation findings and
measure under Art. 12.1(b) at the same time as its notification under Art. 12.1(c). As a third party
joined in the consultations, the EU participated in the consultations between Japan and Ukraine.
Like Japan and the United States, we think that the information shared by Ukraine prior to
19 April 2012, (i.e., the Key Findings) lacked much of what is required under Art. 12.2. Ukraine
had to provide "all pertinent information," not just the listed mandatory components in Art. 12.2.
The Appellate Body has clarified that "all pertinent information" is assessed objectively and should
include, at a minimum, the items listed in Art. 12.2 as well as the factors evaluated pursuant to
Art. 4.2. This would include at least the proposed date of introduction of the safeguard measure,

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the expected duration of the safeguard, and the timetable for progressive liberalization. Neither
Ukraine's written submission, nor the Key Findings that spurred the 19 April 2012 consultations,
indicate that any of this information was provided to Japan in advance of those consultations. The
EU therefore agrees that Ukraine failed to provide adequate opportunity for prior consultations
under Art. 12.3.

14. A Member cannot hold Art. 12.3 consultations after sharing the information that Art. 12.2
requires in notifications under Art. 12.1(b) and (c), even if it has not actually submitted its
Art. 12.1(b) and (c) notifications. Art. 12.2 provides that "[t]he Council for Trade in Goods or the
Committee on Safeguards may request such additional information as they may consider
necessary from the Member proposing to apply or extend the measure." Thus, the "information
provided under paragraph 2" would include any information provided at the request of the Council
for Trade in Goods or the Committee on Safeguards. However, Ukraine gives no indication of how
any such request could be made in the absence of Art. 12.1(b) and (c) notifications. Therefore,
even if the documentation provided to interested Members (such as the Key Findings) did contain
all pertinent information, including the listed mandatory components, it is still not clear that it
would contain "the information provided under paragraph 2."

15. The Appellate Body has clarified that, in order for a safeguard measure to be imposed, it must
be demonstrated that there are unforeseen developments resulting in increased imports. We note
that the measure at issue does not state that the increased imports are the unforeseen
developments, but rather that the unforeseen developments are explained by the increased
imports. As we understand it, this may be taken to mean that the unforeseen developments are
evidenced by the increased imports, in the sense that the unforeseen developments have resulted
in the increased imports. We consider that the measure at issue does not demonstrate that the
increase in imports was recent enough, sudden enough, sharp enough or significant enough to
justify the measure; and that there is a lack of persuasive qualitative analysis of the data in the
measure at issue.

16. The EU considers that publication of indexed figures in relation to the injury requirements may
comport with the requirements of Arts 3.1 and 4.2(c) of the AoS, provided that it is possible, on
such basis, to properly assess the measure against the obligations in the AoS. The EU further
considers that, in the context of panel proceedings, in which confidential information is protected,
the investigating authority (that is, the defending Member) is required to adduce such confidential
information as is necessary for the assessment of consistency. Failure to do so may justify the
drawing of reasonable inferences and reliance on the facts available.

17. Art. 2.1 of the AoS refers to an increase in imports relative to domestic production, not
consumption. By contrast Art. 3.2 of the ADA and Art. 15.2 of the ASCM refer to an increase in
imports relative to production or consumption. Certain items are included in production but not
consumption, such as exports. Thus, when comparing with domestic production, a decrease in
exports could give the impression of a relative increase in imports, when none would in fact exist.
However, given that the terms of the different agreements are clearly precise and different on this
point, the EU would conclude that there is no obligation, in Art. 2.1 of the AoS, to make the
comparison with domestic consumption, or with domestic production and domestic consumption.

18. However, Art. 4.2(a) of the AoS refers expressly to the "share of the domestic market taken
by increased imports" and Art. 4.2(b) requires a causation and non-attribution analysis. Therefore,
even if the issue of consumption may not be relevant for the determination of increased imports, it
will be relevant for the assessment of whether or not serious injury has been caused.

19. Art. 4.2(a) requires an investigating authority to evaluate all relevant factors of an objective
and quantifiable nature having a bearing on th e situation of the domestic industry. The term
"changes" indicates that all changes during the period of investigation may be relevant. In the
example given above one would ideally expect the do mestic industry indicators to be positive and
stable during 2010 to 2013, but to deteriorate during the first six months of 2014, as a result of
the unforeseen developments and the imports. However, if, during each of the nine six month
periods making up the investigation period, the domestic industry indicators simply toggle between
negative and positive, that could undermine the proposition that the unforeseen developments and
the imports have caused the negative indicators in the first six months of 2014. It might rather
suggest, for example, that there is a seasonal va riation, with a downward turn in the first six
months of each year.

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20. One approach to injury and causation is to assess them, at least initially, separately, in a so-
called bifurcated analysis. First one determines whether or not there is serious injury. Second, one
determines its cause. This can work for some ki nds of serious injury, where the existence of the
injury is determined by reference to historical data and trends. For other types of serious injury
(such as price suppression or impedance) a unitary analysis is necessary, because it is not possible
to distinguish between the existence of the injury and what is causing it. Ultimately all injury and
causation analysis must be unitary, in the sense that the analysis must eventually be made on a
holistic basis. Although Art. 4.2(a) focuses on injury and Art. 4.2(b) focuses on causation and non-
attribution, they are part of a single and continuous process of analysis designed to ascertain
whether or not the unforeseen developments and the imports have explanatory force for the
serious injury. Thus, if, in the context of Art. 4.2(a), an investigating authority ignores intervening
trends in the data, it is just "kicking the can do wn the road" to Art. 4.2(b). Rather than such a
compartmentalised approach, a better approach is to see the two provisions as related and as
requiring a logical progression of analysis.

21. Art. 4.2(b) requires objective evidence of a causal link between the imports and the serious
injury; and that injury caused by other factors shall not be attributed to the imports. As we see it,
the question is whether or not the other factors are such as to sever any genuine and substantial
relationship of cause and effect between the imports and the serious injury. For example, the facts
might demonstrate that the state of the domestic industry is rather the result of a very large debt
incurred to make an investment that has failed. Perhaps a licence was revoked, or an envisaged
market did not materialise. We believe that an investigating authority is required to examine and
assess such alleged non-attribution factors when they are brought to the notice of the
investigating authority, and particularly when they are put to the investigating authority during the
course of the municipal proceedings by one or more of the interested parties.

22. Assessing causation and non-attribution is rarely an easy or an exact science. Qualitative
methods involve weighing all the evidence and assessing the temporal relationship between
different events, in order to come to a rational and reasonable conclusion about what caused what.
Quantitative methods, which are not required by the AoS, would involve setting up a model of the
market; testing and calibrating the model in order to ensure that it provides a reasonable picture
of how the market actually works; and then shocking the model by eliminating the putative cause
and analysing the results.

23. Art. 7.4 of the AoS does not preclude libera lisation through decisions post-dating the initial
determination or the initial application. However, it is difficult to reconcile the obligation of
liberalisation with the proposition that, following the determination, during an initial period the
measure should be relatively more permissive (that is, not applied at all) and in a subsequent
period relatively more restrictive (that is, app lied). Viewed over time, such a measure does not
progressively liberalise. It does the opposite: it progressively protects.

24. Art. 12.2 of the AoS mandates that the notification shall include a timetable for progressive
liberalisation. If this is not done, and the measure at issue is silent, the evidence would support
the view that no progressive liberalisation is provided for, has occurred, or is occurring. If the
Panel's assessment reveals that there is a measure before it with a duration of three or four years,
and that one or more regular intervals has passed without any progressive liberalisation, then the
Panel would be in a position to determine a breach no t only of Art. 12.2, but also of Art. 7.4. What
amounts to a regular interval would need to be assessed on a case-by-case basis, but any period
in excess of one year would generally be difficult to justify. In such circumstances, if the defending
Member wishes to avoid an adverse finding under Art. 7.4, it would be for the defending Member
to adduce evidence pertinent to the question of progressive liberalisation.

25. In the case of initial application, the determination must be duly supported by a finding that
increased imports have caused serious injury or threat thereof, as detailed in the investigation. If
there is an excessive period of time between the determination and the application, the results of
the investigation may no longer objectively support the application. This could be cured by re-
opening the record and up-dating the data, subjec t to due process. In the case of extension,
Art. 7(2) of the AoS requires a separate finding that the safeguard measure continues to be
necessary to prevent or remedy serious injury. In the case of remedy, this means that there will
be a separate finding of serious injury to justify the extension. In the case of prevention, there will
have to be a separate finding that removal of the measure would result in serious injury.

- C-9 -

26. There are circumstances in which the concept of estoppel can serve as a useful analytical tool,
particularly when the actions or the conduct of a Member may reasonably be taken to imply a
particular conclusion.

27. In principle, pursuant to Art. 3.8 of the DSU, an infringement is considered prima facie to
constitute a case of nullification or impairment. Members have occasionally attempted to rebut
that presumption, but none has ever succeeded. It would be particularly problematic for a WTO
adjudicator to step into a municipal proceeding and substitute its own judgment for the future
judgment of an investigating authority as to what other consequences a breach might or might not
have in the specific context of the municipal proceedings. It is for the defending Member, in the
first place, to decide how it wishes to pursue the objective of compliance. Should a panel wish to
do so, it can make suggestions pursuant to Art. 19(1) of the DSU.

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ANNEX C-3
ORAL STATEMENT OF KOREA, REPUBLIC OF
Mr. Chairman, Members of the Panel,
1. The Republic of Korea appreciates this opportunity to present its views to the Panel as a third
party. While several important issues are raised in this dispute, Korea would like to focus its
statement on the meaning of "explanation" presented in the Agreement on Safeguards.
2. As has been previously confirmed by the A ppellate Body, the importing Member's safeguard
measures amount to "extraordinary measures" 1. This is true in part because safeguards "do not
depend on 'unfair' trade action, as is the case with anti-dumping or countervailing measures." 2
Rather, an importing Member may impose a safeguard measure when the increase in imports is
caused by developments which were not foreseen at the time that the WTO commitments were
made.
3. The extraordinary nature of safeguards requir es that a high standard be met when it is
imposed. The measure must be temporary and ca refully administered. Appropriate compensation
needs to be provided. And importantly for this argument, explanation that details the measure's
rationale is required.
4. "Explanation" is not language that explicitly appears in the Safeguards Agreement. This is a
departure from other trade remedy agreements, such as the Subsidies Agreement and the Anti-
Dumping Agreement. Nevertheless, Korea is convinced that the Safeguards Agreement obligates a
Member seeking to impose a safeguard measure to provide adequate explanation as to why the
extraordinary measure was necessary.
5. Specifically, Articles 3.1 of the Safeguards Ag reement states that "[t]he competent authorities
shall publish a report setting forth their findings and reasoned conclusions reached on all pertinent
issues of fact and law." Article 4.2(c) states that "[t]he competent authorities shall publish
promptly, in accordance with the provisions of Article 3, a detailed analysis of the case under
investigation as well as a demonstration of the relevance of the factors examined." An examination
of the Agreement's provisions reveals that the competent authorities' obligation to explain its
measures is clearly laid out.
6. Moreover, the Appellate Body has established a high standard for meeting the obligation of
explanation stipulated in the Agreement. In US – Lamb , the Appellate Body stated that "in the
context of a claim under Article 4.2(a) of the Ag reement on Safeguards, "establishing explicitly"
implies that the competent authorities must prov ide a 'reasoned and adequate explanation of how
the facts support their determination.'"
3 The Appellate Body further noted that "to be explicit, a
statement must express distinctly all that is meant; it must leave nothing merely implied or
suggested; it must be clear and unambiguous." 4 In US – Steel Safeguard , the Appellate Body
stated that "a competent authority must establish, unambiguously, with a reasoned and adequate
explanation, and in a way that leaves nothing merely implied or suggested, that imports from
sources covered by the measure, alone, satisfy the requirements for the application of a safeguard
measure."
7. The Safeguards Agreement is an acknowledg ement of the importing Member's interest in
protecting its industry from increased imports. At the same time, the WTO seeks to balance the
importer's interest with that of the exporter by placing the onus on the importing Member to
provide detailed explanation for imposing the safeguard measure.

1 Appellate Body Report, US – Line Pipe, para. 80.
2 Appellate Body Report, US – Line Pipe, para. 81 (quoting Argentina – Footwear (EC), paras. 93-95.)
3 Appellate Body Report, US – Line Pipe, para. 181.
4 Appellate Body Report, US – Line Pipe, para. 194.

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8. Detailed explanation that satisfies a certain standard also holds transparency implications. A
competent authority is required to provide information as to the unforeseen developments that
causes or threatens serious injury to its domestic industry. Transparency in administering
safeguard measures is all the more significant gi ven the extraordinary and exceptional nature of
the measure.
9. Detailed explanation is important for due process purposes as well. It allows the exporter an
opportunity to review the competent authority's decision and, if necessary, to plead the illegality of
the measure before the importing Member's domestic courts or the WTO.
10. Korea posits, in light of the object and purpos e of Articles 3.1 and 4.2(c) of the Safeguards
Agreement, as well as relevant decisions by the Appellate Body, that a high standard of
explanation has been established which needs to be met when imposing a safeguard measure. A
competent authority that provides insufficiently detailed explanations for its measure would have
failed to clear that standard.
11. Thank you.

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ANNEX C-4
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TURKEY
I. Introduction

1. Turkey is participating in this Panel not only because of its systemic interest in the
interpretation and implementation of the General Agreement on Tariffs and Trade 1994
(GATT 1994) and the Agreement on Safeguards (AoS), but also its substantial trade interests as it
is one of the major exporter countries and has been an interested party during the investigation
process.

2. In the present dispute, Turkey wishes to cont ribute to the Panel's analysis by expressing its
opinion on four issues, namely i) requirement of unforeseen developments within the meaning of
Article XIX of the GATT 1994, ii) the analysis of increase in imports iii) serious injury or threat of
serious injury and iv) the causation requirement.

II. The Requirement of Unforeseen Developmen ts within the Meaning of Article XIX of
the GATT 1994

3. In their submissions, the parties of the pres ent dispute take different views on whether the
determination of unforeseen developments is a prerequisite for imposition of a safeguard measure.
While Japan asserts that the existence of unforeseen developments is a prerequisite for imposition
of a safeguard, Ukraine rejects such claims.
1

4. Article XIX:1(a) of the GATT 1994 provides that:

If, as a result of unforeseen developments and of the effect of the obligations incurred
by a [Member] under this Agreement, including tariff concessions, any product is
being imported into the territory of that [Member] in such increased quantities and
under such conditions as to cause or threaten serious injury to domestic producers in
that territory of like or directly competitive products, the contracting party shall be
free, in respect of such product, and to the extent and for such time as may be
necessary to prevent or remedy such injury, to suspend the obligation in whole or in
part or to withdraw or modify the concession (emphasis added).
5. First of all, as underlined in the previous Appellate Body and Panel Reports, Article XIX of
the GATT 1994 and the Safeguards Agreemen ts are to be applied cumulatively.
2 Thus, in order to
impose a WTO-consistent safeguard measure, a Memb er must comply with the provisions of both
the Agreement on Safeguards and Article XIX of the GATT 1994.3

6. Regarding the effects and the requisite nature of the circumstances in the first clause of
Article XIX:1(a), the Appellate Body provided useful guidelines, which, in Turkey's view, should be
followed. According to the Appellate Body, the first clause of Article XIX:1(a), which includes i)
unforeseen developments and ii) the effect of the obligations incurred by a [Member] under the
GATT, do not establish independent conditions, additional to the conditions set forth in the second
clause of Article XIX:1(a), which are reiterated in Article 2.1 of the AoS. 4 However the
circumstances in the first clause must be demonstrated as a matter of fact, in order for a
safeguard measure to be applied consistently with Article XIX of the GATT 1994.5

7. As the Appellate Body use the word "circumstances" instead of a singular form, in reference
to the situations in the first clause, a Member wishing to apply a safeguard measure must

1 Japan's first written submission, para. 75; Ukraine's first written submission, para. 73.
2 See, for example, Appellate Body Reports in Argentina – Footwear (EC), para. 92; Korea – Dairy,
Republic – Bag and Fabric Safeguards, para. 7.128.
3 Appellate Body Reports, Argentina – Footwear (EC), para. 84.
4 Appellate Body Report, Korea – Dairy, para. 85
5 Appellate Body Report, Korea – Dairy, para. 85 and Appellate Body Report, US – Lamb, para. 71.

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demonstrate that increase in imports is not only the result of "unforeseen developments" but also
the result of "the effect of the obligations incurred by the Member under the GATT 1994", as well.6
It should also be noted that such circumstances must be established through a reasoned and
adequate explanation in the document that put the measure in effect.
7

8. Moreover, increase in imports should be the result of the factual circumstances referred to in
the first clause of the Article XIX of the GATT 1994 and cannot be regarded as the unforeseen
development itself. In this regard, as indicated by the Panel in Argentina — Preserved Peaches,
"[a] statement that the increase in imports, or the way in which they were being imported, was
unforeseen, does not constitute a demonstration as a matter of fact of the existence of unforeseen
developments.
8

9. Thus, Turkey considers that the existence of absolute or relative increase in imports cannot
amount to a demonstration of the presence of unforeseen developments. Such an interpretation of
the unforeseen developments requirement has been previously rejected by a WTO Panel
9 and
would be inconsistent with Article XIX:1(a) of the GATT 1994.

10. Furthermore, as emphasized by the Appellate Body in US-Lamb, demonstration of the
existence of unforeseen developments must be made before the safeguard measure is applied.
10
Therefore, in Turkey's view, any identification of "unforeseen developments" after the imposition of
the measure, cannot make the measure consistent with Article XIX:1(a) of the GATT 1994.

III. The Analysis of Increase in Imports

11. Article 2.1 of the AoS states that;

"A Member may apply a safeguard measure to a product only if that Member has
determined, pursuant to the provisions set out below, that such product is being
imported into its territory in such increased quantities, absolute or relative to domestic
production, and under such conditions as to cause or threaten to cause serious injury
to the domestic industry that produces like or directly competitive products."
(emphasis added).
12. Accordingly, increased imports, in absolute or relative terms, is a condition for the
application of a safeguard measure. As the jurisp rudence of WTO confirms, Turkey notes that "the
increased imports requirement can be met not only if there is an absolute increase in imports, but
also if there is an increase relative to domestic production".
11

13. However, in Turkey's view, certain conditions should be met in order to be in compliance
with the Article XIX of the GATT 1994 and AoS. Firs t of all, as the Appellate Body explained, "the
determination of whether the requirement of imports "in such increased quantities" is met is not a
merely mathematical or technical determination."
12 Instead, the increase in imports must have
been recent enough, sudden enough, sharp enough , and significant enough, both quantitatively
and qualitatively, to cause or threaten to cause "serious injury". 13 This means that a simple
determination of increase in imports either in absolute or relative terms do not make the measure
consistent with Article XIX and AoS. On the contrary, Turkey considers that an investigating
authority should make a detailed and reasoned analysis both quantitatively and qualitatively for
establishing that increase in imports is sudden, recent, sharp, and significant enough to cause or
threaten to cause serious injury.

14. Secondly, it should be noted that a simple comparison of imports levels at the start and the
end of the period of investigation (POI) is not acceptable. According to the Appellate Body in US –
Steel Safeguards, such a determination "could easily be manipulated to lead to different results,

6 Appellate Body Report, Korea – Dairy, para. 85
7 Appellate Body Report, US – Lamb, para. 76. See also Panel Report, Dominican Republic – Bag and
Fabric Safeguards, para. 7.128.
8 Panel Report, Argentina – Preserved Peaches, para. 7.24 (emphasis in original).
9 Panel Report, Argentina – Preserved Peaches, para. 7.24
10 Appellate Body Report, US – Lamb, para. 72
11 Appellate Body Report, US – Steel Safeguards, para. 390 (emphasis in original).
12 Appellate Body Report, Argentina – Footwear (EC), para. 131.
13 Appellate Body Report, Argentina – Footwear (EC), para. 131.

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depending on the choice of end points". 14 Rather, the Appellate Body emphasized the significance
of the trend in imports over the entire POI and the need for "an explanation of how the trend in
imports supports the competent authority's finding". 15 Similarly, the Appellate Body in Argentina –
Footwear stated that "the competent authorities are required to consider the trends in imports
over the period of investigation (rather than just comparing the end points)". 16 This means that
the investigating authority should examine both "the rate and amount of the increase in imports …
in absolute and relative terms."17

15. Therefore, in Turkey's view, especially where there is an absolute decline in imports over the
POI, an adequate and justified explanation is indispensable for a conclusion that imports in "such
increased" quantities caused serious injury to the domestic industry. In the absence of that
explanation, the safeguard measure would be inconsistent with Article 2.1 of the Safeguards
Agreement and Article XIX:1(a) of the GATT 1994.

16. Thirdly, as it was highlighted by the Appellate Body in Argentina – Footwear (EC) the
increase in imports must have resulted from an "unforeseen development" and the increase in
imports should also be "unforeseen" or "unexpected".
18

17. For the foregoing reasons, Turkey respectfully asks the Panel, to take into account the above
mentioned conditions in analysing the consistency of the measure at issue with Article XIX:1(a) of
the GATT 1994 and provisions of AoS.

IV. Serious Injury or Threat of Serious Injury

18. Both Article XIX of the GATT 1994 and Article 2 of the AoS provide that a safeguard measure
may only be imposed if the increased imports are made "under such conditions as to cause or
threaten to cause serious injury". Article 4 of the AoS lays down more detailed rules in regard to
determination of serious injury or threat thereof.

19. In the case at hand, Turkey would like to draw the Panel's attention to requirement of
Article 4.2(a) for the determination of serious inju ry and threat of serious injury. Article 4.2(a)
necessitates investigating authorities to "evaluate all relevant factors of an objective and
quantifiable nature having a bearing on the situation of the industry, in particular, the rate and
amount of the increase in imports of the product co ncerned in absolute and relative terms, the
share of the domestic market taken by increa sed imports, changes in the level of sales,
production, productivity, capacity utilization, profits and losses, and employment". (emphasis
added)

20. Turkey would like to note that the Appellate Body has established that all but not some of
the factors mentioned in Article 4.2(a) must be considered by the investigating authority during
the investigation.
19 Moreover, the investigating authority's consideration of each listed factor must
be "reasoned and adequate". 20 In this regard, an evaluation of each listed factor might not
necessarily show that each such factor is "declining", in Turkey's view, however, they all - together
with any other relevant factors- have to be evaluated by the investigating authority. Subsequently,
the outcome of such evaluation has to demonstrate a significant overall impairment in the position
of the domestic industry. Therefore, if one or so me of the factors have not been evaluated by the
investigating authority at all, or investigating authority's consideration of each listed factor is not
"reasoned and adequate", then the measure would become inconsistent with the Article 4.2(a).

V. The causation requirement

21. Article XIX: 1(a) of the GATT 1994 and, Ar ticle 2.1 and 4.2(b) of the AoS require the
demonstration of the existence of the causal link between increased imports of the product
concerned and serious injury or threat thereof. Article 4.2(b) of the AoS further specifies that

14 Appellate Body Report, US – Steel Safeguards, para. 354.
15 Appellate Body Report, US – Steel Safeguards, para. 374 (emphasis in original).
16 Appellate Body Report, Argentina – Footwear, para. 129.
17 Appellate Body Report, Argentina – Footwear, para. 129, quoting with approval the panel finding in
that dispute.
18 Appellate Body Report, Argentina – Footwear (EC), para. 131.
19 Appellate Body Report, Argentina – Footwear (EC), para. 136.
20 Appellate Body Report, US – Lamb, para. 103.

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"when factors other than increased imports are causing injury to the domestic industry at the
same time, such injury shall not be attributed to increased imports".

22. Thus, in order to meet the causation requirement the investigating authority must
demonstrate, first, the existence of the causal link between increased imports and serious injury or
threat thereof and second, non-attribution of injury caused by factors other than the increased
imports.
21

23. In regard to causal link between increased im ports and serious injury or threat thereof, the
Appellate Body has clarified that "in an analysis of causation, 'it is the relationship between the
movements in imports (volume and market share) and the movements in injury factors that must
be central to a causation analysis and determination".
22 The Appellate Body further emphasized
that there must be a "genuine and substantial re lationship of cause and effect" between increased
imports and serious injury.23 Therefore, in Turkey's view, in order to comply with the requirements
of Article 4.2(a), an investigating authority has to provide reasoned and adequate explanation that
confirms the link, in terms of timing and mo vements, between increased imports and serious
injury and/or threat of serious injury.

24. Concerning the non-attribution analysis, in US – Lamb, the Appellate Body clarified that an
investigating authority has to separate and distinguish the injury caused as a result of increased
imports from the injury caused as a result of other factors.
24 A c c o r d i n g l y , i n o r d e r t o m a k e a
proper non-attribution analysis, the investigating authority is required not only to identify the
nature and extent of the injurious effects of the known factors other than increased imports, but
also to separate and distinguish injurious effects of those other factors from the injurious effects of
the increased imports.

VI. Conclusion

25. Turkey appreciates this opportunity to presen t its views to the Panel. Turkey requests the
Panel to review carefully the comments stated in this submission, in interpreting Article XIX of
GATT 1994 and the AoS.

21 Appellate Body Report, US – Line Pipe, para. 208.
22 Appellate Body Report, Argentina – Footwear, para. 144.
23 Appellate Body Report, US – Wheat Gluten, para. 69.
24 Appellate Body Report, US – Lamb, paras. 178-181.

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ANNEX C-5
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES
I. Views Expressed in the U.S. Third Party Submission
1. The report that must be published by the co mpetent authorities pursuant to SGA Articles 3.1
and 4.2(c) serves an essential role in the review of safeguard measures. It allows other Members
to understand why a safeguard measure has been adopted, and - in the event of a WTO dispute
settlement proceeding - allows a WTO panel to assess whether a safeguard action complies with
the substantive obligations contained in GATT Article XIX and the SGA. Not surprisingly then,
published reports must address in considerable detail a broad range of issues, including
unforeseen developments under GATT Article XIX:1(a), the rationale for finding the requisite
increased imports based on consideration of the entire period of the investigation rather than
simply comparing end points. The published report must set out in equal detail the competent
authority's evaluation of all relevant factors and a reasoned explanation for concluding that the
domestic industry suffered serious injury or th e threat thereof, that the increased imports caused
the serious injury or threat thereof, and that othe r factors causing injury to the domestic industry
are not attributed to the increased imports.

2. The report published by Ukraine is concise in the extreme. Furthermore, in many instances,
Ukraine's written submission provides justifications for its determinations that appear nowhere in
its published report. The Appellate Body has rejected a panel's reliance on supplemental
information provided during dispute settlement proceedings.

3. Having recognized the considerable importance of a thorough, reasoned published report,
the United States notes that some conclusions and sets of facts require more explanation than
others, and the length of an explanation with respec t to any single issue should not be dispositive.
Although panels should not be put in the position of having to infer the competent authority's
reasoning, they also need not ignore reality or invent ambiguity or complexity where none exists.

4. The SGA does not specify how soon a safeguard measure must be put into place. If a
Member were within its rights to impose a safeguard measure for four years, it would be odd to
suggest that delaying application of the measure for a year and putting it in place for three years
in and of itself creates an inconsistency. Delay following a decision to impose safeguard measures
may in some instances reflect desirable behavior. A Member may be working to address concerns
raised in consultations following notification of the proposed measures. Thus, requiring a Member
to choose between (1) implementing a safeguard measure during a very short window after the
decision is taken, or (2) losing the right to impose it at all, could cause a Member to take more
restrictive measures than it would otherwise. On the other hand, significant delay in imposing
safeguard measures tends to undercut the notion that such measures constitute an "emergency
action" necessary to prevent or remedy serious injury and to facilitate adjustment. This is equally
true where an investigation has resulted in a finding of a threat of serious injury, which requires
that the anticipated serious injury be "imminent, " or "on the very verge of occurring." Extended
uncertainty as to the timing and degree of the final safeguard measure may disrupt trade more
than actual imposition of a measure.

5. It is not clear that a Member can hold Article 12.3 consultations after sharing the
information that Article 12.2 requires in notifications under Article 12.1(b) and (c), even if it has
not actually submitted its Article 12.1(b) and (c) notifications. Article 12.2 allows the Council for
Trade in Goods or the Committee on Safeguards to request such additional information as they
may consider necessary. Thus, the "information provided under paragraph 2" presumably would
include any information provided in response to such a request. However, Ukraine gives no
indication of how any such request could be made in the absence of Article 12.1(b) and (c)
notifications. Therefore, even if documentation provided to interested Members (such as the Key
Findings) did contain all pertinent information, including the listed mandatory components, it is still
not clear that it would contain "the information provided under paragraph 2."

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6. In addition, Japan argues that the informat ion shared by Ukraine prior to April 19, 2012,
(i.e., the Key Findings) lacked much of what is required under Article 12.2. Japan appears to be
correct that neither Ukraine's written submission, nor the Key Findings that spurred the
April 19, 2012, consultations, indicate that the proposed date of introduction of the safeguard, the
expected duration of the safeguard, or the timeta ble for progressive liberalization was provided to
Japan in advance of those consultations.

7. The United States has concerns with Japan's challenge to the validity of the April 19, 2012,
consultations on the basis of the change in one duty rate from 15.1 percent (the rate for cars with
larger engines proposed prior to consultations) to 12.95 percent (the rate for those cars that was
eventually applied). The proposed measure on which the Members consult need not be identical in
every respect to the one that is eventually applied. Prior consultations allow interested Members to
seek, inter alia, modification of the measure. Indeed, Ukraine implies that it lowered the duty rate
as a result of the consultations it held with Japan. Precluding modification of a measure in
response to concerns expressed by interested Members (or always requiring one additional round
of consultations that leads to no changes) would diminish rather than preserve or enhance the
value to interested Members of Article 12.3 consultations. Because modification of a measure
would subject the Member implementing the safegu ard to either a finding that it breached its
Article 12.3 obligations, or the delay and expense of additional consultations, Japan's
interpretation would create a significant disincentive to modification of measures in the interested
Member's favor, including a reduction of duty rates. Thus, the modification of the duty rate should
not support a finding that the April 19, 2012, consultations were inconsistent with Article 12.3.

8. Japan claims that Ukraine breached its obligations under Article 7.4 because it did not
provide for a progressive liberalization of the measure when the safeguard was initially imposed as
reflected in the March 14, 2013, published notice of the decision. Japan relies on the same facts to
claim that Ukraine breached its notification ob ligations under Article 12.2 of the SGA. Ukraine
argues that the substantive obligation under Article 7.4 to progressively liberalize the safeguard
measure is distinct from the procedural obligati on under Article 12 to notify the timetable for
liberalization. Ukraine maintains that it complied with its obligations under Article 12.1(b) and (c)
through its March 21, 2013, notifications, but it acknowledges that it did not notify any timetable
for progressive liberalization until March 2014. The United States notes that Article 12.2 explicitly
states that notifications under Article 12.1(b) and (c) "shall include," inter alia, a "timetable for
progressive liberalization." These requirements serve an import transparency and information
purpose, including by allowing for meaningful consultations.

II. Views Expressed in the U.S. Oral Statement
9. The EU suggests that BCI procedures should be substantially similar across disputes under
the AD Agreement, the SCM Agreement, and th e SGA. These panel proceedings are not an
appropriate forum for pursuing such an objective. Any systemic solution should be sought through
the WTO bodies designed to solicit and reflect the views of all Members.

10. The critical point with respect to paragraph 1, sentence 3 of this Panel's BCI procedures is
whether the competent authorities treated the info rmation as BCI, either because they accepted
the submitter's designation or because they resolved a challenge in favor of confidentiality. If that
is the case, a panel should, in the first instance, follow the designations of the competent
authorities. Accordingly, this sentence could be cl arified by substituting the words "treated by" for
the words "submitted to" so that it reads, in relevant part: "BCI shall include information that was
previously treated by the investigating authorities of Ukraine…as BCI in the safeguard investigation
at issue in this dispute."

III. Views Expressed in U.S. Respon ses to Questions from the Panel
11. The SGA sets out no explicit obligation that fixes a specific time, either relative to the data in
the underlying investigation or the date the decision is taken, by which a safeguard measure must
be put into force. However, the U.S. position does not imply that, because no explicit obligation on
timing exists, any action, however far removed from the end of an investigation, is consistent with
the SGA. It may well be that in a specific dispute, the complaining party will demonstrate that one
or more SGA obligations has been breached under the particular facts and circumstances of that
dispute.

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12. For example, a Member's discretion to apply a safeguard measure is at all times limited by
the requirement that such application be necessary to prevent or remedy serious injury and to
facilitate adjustment. A long delay in applying a measure may be a relevant factor to consider in
assessing whether it is necessary because the long absence of the measure undercuts the
supposedly urgent nature of the safeguard measur e, and it becomes more difficult to determine
that a measure is necessary to prevent or remedy the particular serious injury that was previously
found. Because the SGA does not establish a bright li ne rule as to the time for putting a safeguard
into effect, it would not be appropriate to create such a rule through dispute settlement.

13. The SGA also does not explicitly require supplemental analyses or notices thereof after
application of a safeguard measure has been postponed for a particular amount of time. Rather,
any delay in the application of a safeguard measure, and any supplemental analysis relied upon as
a basis for a safeguard measure, should be considered in the context of a particular dispute to the
extent that such facts are relevant to the obligations contained in the covered agreements.

14. An unpublished report that otherwise meets th e requirements of Articles 3.1 and 4.2(c) can
serve as a basis for a panel's analysis of claims under the provisions of the SGA. The failure to
publish a report would be inconsistent with these obligations, but in that situation, a reviewing
panel would not be required to proceed as if the competent authorities undertook no analysis,
which would effectively ensure consequential breaches of many substantive obligations. A fact-
specific inquiry is required to determine whether a document genuinely served as a part of the
report of the competent authorities.

15. There is no obligation under the SGA to conti nue to update information following the end of
the period of investigation or more specifically following the conclusion of the investigation.

16. In the U.S. view, "promptly" in Article 4.2(c) is best understood as referring to the
determination of whether increased imports have caused or are threatening to cause serious injury
to a domestic industry under the terms of the SGA. Whether publication is sufficiently prompt in
any case is necessarily a fact-specific inquiry that must take account of the various circumstances
of the dispute, including the potential need to undertake an analysis of whether a safeguard
measure is necessary in conjunction with the serious injury determination.

17. The United States considers that figures that have been indexed to protect confidential
information can be sufficient to meet the requirements of Articles 3.1 and 4.2(c).

18. A Member need not demonstrate that an increase in imports has resulted from an
unforeseen development "modifying the compet itive relationship between the imports and
domestic products." Further, any corresponding decrease in domestic sales need not also have
been caused by the change in the competitive relationship.

19. The requirement that the increased import s result from unforeseen developments stems
from GATT Article XIX. Article XIX contains no requirement that the unforeseen developments
modify the competitive relationship between the imports and domestic products. Because there is
no requirement to demonstrate a change or modification in the competitive relationship as a
separate element, there can be no requirement to demonstrate that "the decrease in domestic
sales leading to injury also has been caused by the change in the competitive relationship."
Indeed, there is not even a requirement in the SGA that there be a "decrease" in domestic sales.

20. "Unforeseen developments" must be unforeseen at the time the tariff concessions were
made. Safeguard measures "are to be invoked only in situations when, as a result of obligations
incurred under the GATT 1994, a Member finds itself confronted with developments it had not
'foreseen' or 'expected' when it incurred that obligation."

21. Whether a POI was the recent past, and the implication of that inquiry for assessing an
alleged breach under the covered agreements, depends on the facts and circumstances of a
particular dispute. Any of the dates identified by the Panel—the date of the beginning of the
investigation, the date of the completion of the in vestigation, the date of adoption of a safeguard
measure, and the date of its entry into force— may be relevant to determining whether the POI
was the recent past in a given dispute. The POI selected by the investigating authority must be
sufficiently recent to provide a reasonable indication of current trends.

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22. In the United States, after USITC makes a serious injury determination and, if the
determination is in the affirmative, a recommendation regarding a remedy, the President decides
whether a safeguard measure will be imposed. Under U.S. law, the safeguard measure generally
shall take effect within 15 days after the President proclaims the action. However, where the
President seeks to negotiate with foreign counterparts on limitations on exports from foreign
countries of the subject product to the United States, the measure can take effect as much as 90
days after the President proclaims the action. Thus, under U.S. law, a safeguard measure would
normally take effect between 15 and 90 days after the decision to impose the measure.

23. An increase in imports relative to consumption will not, alone, satisfy the increased imports
condition in SGA Article 2.1. Rather, in the context of a determination on increased imports under
Article 2.1, the competent authorities must find that imports have increased either in "absolute
[terms] or relative to domestic production."

24. Separately, in the context of evaluating the relevant factors having a bearing on the
situation of the industry, Article 4.2 contemplates evaluation, in particular, of inter alia "the share
of the domestic market taken by increased import s." A change in domestic market share generally
involves consideration of an increase in imports relative to domestic consumption. However, the
United States allows for the possibility that a methodology could potentially exist in a given
scenario that would allow for evaluation of the sh are of the domestic market taken by increased
imports without considering an increase in imports relative to domestic consumption ( i.e., where
the two are not one and the same). At the very least, because Article 4.2(a) requires competent
authorities to evaluate "all relevant factors," it may be necessary to consider an increase in
imports relative to domestic consumption where it is a relevant factor bearing on the situation of
the industry.

25. The Panel's suspended application approach is a useful tool for assessing a scenario in which
one year has elapsed between the taking of a decision to apply a safeguard measure and the
effective date of the measure. However, the United States does not dismiss the possibility that the
legal problems presented by these two scenarios ma y not be identical. For example, application of
a safeguard measure following a suspension may be viewed as a de facto additional application of
the measure. SGA Article 7 contains certain restrictions on re-applications of safeguard measures
on the same products, including preclusion of application where a safeguard measure has been
applied on the same product more than twice in the preceding five-year period.

26. Article 4.2(a) requires the competent authorities to "evaluate all factors of an objective and
quantifiable nature having a bearing on the situation of that industry." "[A]n end-point-to-end-
point comparison, without consideration of intervening trends, is very unlikely to provide a full
evaluation of all relevant factors." End points must be understood in context, and without
evaluating the intervening data, there is no way of understanding the proper context, and no way
of establishing confidence in the accuracy of the meaning or importance ascribed to the end
points. Where evaluation of intervening data suggests a different conclusion than the one reached
by solely evaluating the endpoints, a "reasoned conclusion" within the meaning of Article 3.1
would need to address the intervening data.

27. Neither the SGA nor GATT Article XIX: 1(A) provide any particular methodology that
competent authorities must use in examining factors other than increased imports. The Appellate
Body has not found the SGA to require that a competent authority "quantify" the extent of injury
attributed to imports or other injurious factors as part of its non-attribution analysis under
Article 4.2(b). The Appellate Body has stated that it leaves "unanswered many methodological
questions relating to the non-attribution requirement found in the second sentence of
Article 4.2(b)," and it has recognized that the SGA leaves the development of appropriate
analytical methodologies under Article 4.2(b) to the discretion of the competent authorities.

28. Article 7.4 requires progressive liberalization but does not reference the initial decision to
impose a safeguard measure. Therefore, nothing in Article 7.4 precludes liberalization through a
decision post-dating the initial decision to im pose a safeguard measure. Articles 7.4 and 12.2
contain distinct obligations, and a breach of Article 12.2 does not necessarily result in a
consequential breach of Article 7.4.

29. SGA Article 12.1(b) requires a Member to notify the Committee on Safeguards immediately
upon making a finding of serious injury or threat thereof caused by increased imports. The

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determination referenced in SGA Article 2.1 as a condition for applying a safeguard measure and
further elaborated upon in Article 4 serves as the "finding" that must be notified pursuant to
Article 12.1(b).

30. Members must make a finding of serious in jury or threat thereof caused by increased
imports in order to apply a safeguard measure. If such a finding has been made, a Member must
separately decide to apply (or extend) a safeguar d measure, which necessarily must consider to
what extent, if at all, a safeguard measure is necessary to prevent or remedy serious injury and to
facilitate adjustment. However, nothing prevents a Member from rendering these decisions in the
same document or at the same time. Similarly, the Article 12.1(b) obligation to notify the
Committee on Safeguards upon making a finding of serious injury or threat thereof caused by
increased imports is distinct from the Article 12.1(c) notification obligation upon taking a decision
to apply or extend a safeguard measure. However, nothing prevents a Member from complying
with both obligations in a single notification if that notification can be characterized as immediate
with respect to both occurrences under the particular circumstances of the case.

31. The DSU contains no mention of estoppel or harmless error. Alleged breaches of the covered
agreements must be assessed based on their text, and application of a concept of estoppel or
harmless error, to the extent it led to a different result, would add to or diminish the rights and
obligations provided in the covered agreements, contrary to DSU Article 3.2. Thus, it is not
surprising that neither the Appellate Body nor any panel has previously applied the concept of
estoppel as advocated by Ukraine in this proceeding. Indeed, previous panels have expressed
skepticism about whether estoppel is applicable in the WTO dispute settlement context, noting that
"it is not mentioned in the DSU or anywhere in the WTO Agreement." The lack of any textual basis
for importing the principle of estoppel is further emphasized by the lack of consistent description of
the concept when panels have had occasion to discuss estoppel in the past, including in EEC –
Bananas I (GATT) and EC – Asbestos and Guatemala – Cement II . These inconsistencies illustrate
the dangers of seeking to import legal concepts not contained in the text of the DSU, which
reflects the principles agreed to by all Members.

32. Similarly, the United States is not aware of any application by a panel or the Appellate Body
of the concept of harmless error as advocated by Ukraine in this proceeding. Indeed, previous
panels have refused to apply a theory of harmless error. To the contrary, a panel has previously
stated that, "if a Member has violated a WTO obligation which is phrased as a categorical rule, an
assertion that the violation was merely a harmless error is irrelevant." Because these concepts are
not provided for in the DSU or the covered agreements, they have no use with respect to this
dispute, in particular.

33. Ukraine argues that, by virtue of having itse lf failed to comply with Article 12.5, Japan is
estopped from claiming a violation on the part of Ukraine. Ukraine further argues that, because
such notifications are meant for the non-consulting Members rather than the other consulting
Member, who presumably is aware of the outcome of the consultations, a failure to notify the
Committee constitutes harmless error with respect to Japan. There is no basis in the text of the
DSU or the covered agreements for either argument.