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

UNITED STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM
PRODUCTS
REPORT OF THE PANEL
Addendum
This addendum contains Annexes A to C to the Report of the Panel to be found in documents

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

ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Working Procedures of the Panel Revised on 19 July 2019 and 20 February 2020 10
Annex A-3 Additional Working Procedures of the Panel Concerning Meetings with Remote
Participation 16

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

General

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

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

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

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

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

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

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

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

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

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

30. The following procedures regarding service of documents apply to all documents submitted by
parties and third parties during the proceeding:
a. Each party and third party shall submit all documents to the Panel by submitting them
with the DS Registry (office No. 2047).
b. Each party and third party shall submit 2 paper copies of its submissions and 2 paper
copies of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates established
by the Panel. The DS Registrar shall stamp the documents with the date and time of
submission. The paper version submitted to the DS Registry shall constitute the official
version for the pur poses of submission deadlines and the record of the dispute. If any
documents are in a format that is impractical to submit as a paper copy, then the party
may submit such documents to the DS Registrar by email or on a CD -ROM, DVD or USB
key only.
c. Each party and third party shall also send an email to the DS Registry, at the same time
that it submits the paper versions, attaching an electronic copy of all documents that it
submits to the Panel, preferably in both Microsoft Word and PDF format. All such e mails
to the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO
Secretariat staff whose email addresses have been provided to the parties during the
proceeding. If it is not possible to attach all the Exhibits to one email, the submitting party
or third party shall provide the DS Registry with four copies of the Exhibits on USB keys,
CD-ROMs or DVDs.

d. In addition, each party and third party is invited to submit all documents through the
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the
submission of the paper versions. If the parties or third parties have any questions or
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.
e. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in addition, serve any submissions in advance of the first substantive
meeting with the Panel di rectly on the third parties. Each third party shall serve any
document submitted to the Panel directly on the parties and on all other third parties. A
party or third party may serve its documents on another party or third party by email or
other electronic format acceptable to the recipient without having to serve a paper copy,
unless the recipient party or third party has previously requested a paper copy. Each party
and third party shall confirm, in writing, that copies have been served on the parties an d
third parties, as appropriate, at the time it provides each document to the Panel.
f. Each party and third party shall submit its documents with the DS Registry and serve
copies on the other party (and third parties if appropriate) by 5.00 p.m. (Geneva time) on
the due dates established by the Panel.
g. As a general rule, all communications from the Panel to the parties and third parties will
be via email. In addition to transmitting them to the parties by email, the Panel shall
provide the parties with a paper copy of the Interim Report and the Final Report.
Correction of clerical errors in submissions
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its
submissions (including paragraph numbering and typographical mistakes). Any such request should
identify the nature of the errors to be corrected, and should be made promptly following the filing
of the submission in question.

ANNEX A-2
WORKING PROCEDURES OF THE PANEL
Revised on 19 July 2019 and 20 February 2020

General

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

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

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

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

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

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

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

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

22. The description of the arguments of the parties and third parties in the descriptive part of the
Panel report shall consist of executive summaries provided by the parties and third parties, which
shall be annexed as addenda to the report. These executive summaries shall not in any way serve

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

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

30. The following procedures regarding service of documents apply to all documents submitted by
parties and third parties during the proceeding:
a. Each party and third party shall submit all documents to the Panel by submitting them
with the DS Registry (office No. 2047).
b. Each party and third party shall submit 2 paper copies of its submis sions and 2 paper
copies of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates established
by the Panel. The DS Registrar shall stamp the documents with the date and time of
submission. The paper version submitted to the DS Registry shal l constitute the official
version for the purposes of submission deadlines and the record of the dispute. If any
documents are in a format that is impractical to submit as a paper copy, then the party
may submit such documents to the DS Registrar by email or on a CD-ROM, DVD or USB
key only.
c. Each party and third party shall also send an email to the DS Registry, at the same time
that it submits the paper versions, attaching an electronic copy of all documents that it
submits to the Panel, preferably in b oth Microsoft Word and PDF format. All such emails
to the Panel shall be addressed to DSRegistry@wto.org, and copied to other WTO
Secretariat staff whose email addresses have been provided to the parties during the
proceeding. If it is not possible to attach all the Exhibits to one email, the submitting party
or third party shall provide the DS Registry with four copies of the Exhibits on USB keys,
CD-ROMs or DVDs.

d. In addition, each party and third party is invited to submit all documents through the
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the
submission of the paper versions. If the parties or third parties have any questions or
technical difficulties relating to the DDSR, they are invited to consult the DDSR User Guide
(electronic copy provided) or contact the DS Registry at DSRegistry@wto.org.
e. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall serve directly on the third parties any submissions up to a nd including
the responses to the questions posed by the Panel following the first substantive meeting
of the Panel with the parties, as well as the final versions of the oral statements made
during this meeting. In addition, each party shall serve directly on the third parties second
written submissions, final versions of oral statements made during the second substantive
meeting, responses to the Panel's questions after the second substantive meeting, and
comments on those responses . Each third party shal l serve any document submitted to
the Panel directly on the parties and on all other third parties. A party or third party may
serve its documents on another party or third party by email or other electronic format
acceptable to the recipient without having to serve a paper copy, unless the recipient party
or third party has previously requested a paper copy. Each party and third party shall
confirm, in writing, that copies have been served on the parties and third parties, as
appropriate, at the time it provides each document to the Panel.
f. Each party and third party shall submit its documents with the DS Registry and serve
copies on the other party (and third parties if appropriate) by 5.00 p.m. (Geneva time) on
the due dates established by the Panel.
g. As a general rule, all communications from the Panel to the parties and third parties will
be via email. In addition to transmitting them to the parties by email, the Panel shall
provide the parties with a paper copy of the Interim Report and the Final Report.
Correction of clerical errors in submissions
31. The Panel may grant leave to a party or third party to correct clerical errors in any of its
submissions (including paragraph numbering and typographical mistakes). Any such request should
identify the nature of the errors to be corrected, and should be ma de promptly following the filing
of the submission in question.

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

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

ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of the People's Republic of
China
19
Annex B-2 Integrated executive summary of the arguments of the United States of
America
35

ANNEX B-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE PEOPLE'S REPUBLIC OF CHINA
I. MEASURES AT ISSUE
1. This dispute concerns additional duties that the United States has imposed upon imports of
certain steel and aluminium products at levels in excess of its bound tariff commitments and in
contravention of its obligation to extend most -favoured nation treatment to imports from all WTO
Members. The United States imposed these additional duties effective 23 March 2018 pursuant to
Section 232 of the Trade Expansion Act of 1962 ("Section 232").
2. The measures at issue in this dispute consist of the additional import duties on steel and
aluminium products, the country-specific exemptions granted from those duties, the related quota
agreements, and the product -specific exclusion process. The measures at issue also include the
additional import duties that the United States has subsequently imposed on derivative steel and
aluminium articles and the country-specific exemptions granted from those duties.
3. China is challeng ing two distinct, broader measures, a steel safeguard measure and an
aluminium safeguard measure, and their constituent elements. Each of these broader measures is,
in fact, comprised of a set of individual elements that all address a particular category of products,
i.e. steel or aluminium products.
4. At a minimum, the broader steel safeguard measure consists of the additional import duties
imposed on steel products, including those imposed on derivative steel articles; the country-specific
exemptions, inclu ding those provided in relation to derivative steel articles; and import quotas
pertaining to steel products. The product exclusion process as applied to steel products and individual
product exclusions granted in relation to steel products also form part of this broader steel safeguard
measure.
5. At a minimum, the broader aluminium safeguard measure consists of the additional import
duties imposed on aluminium products, including those imposed on derivative aluminium articles;
the country -specific exemptions , including those provided in relation to derivative aluminium
articles; and import quotas pertaining to aluminium products. The product exclusion process as
applied to aluminium products and individual product exclusions granted in relation to aluminium
products also form part of this broader aluminium safeguard measure.1
6. These two broader measures and their constituent elements are specifically identified in
China's panel request. The United States has not disputed China's characterization of the measures
at issue as consisting of two broader steel and aluminium measures comprised of individual
elements.2
7. The additional import duties imposed on derivative steel and aluminium products and country-
specific exemptions therefrom are within the Panel's terms of reference. The language of China's
panel request specifically references "any amendments, supplements, extensions, replacement
measures, renewal measures, related measures, or implementing measures." 3 Furthermore, the
additional import duties on deriva tive products did not affect or change the "essence" of the initial
import duties. Proclamation 9980 simply extended the initial duties to derivative steel and aluminium
products. The additional duties on derivative products are indisputably closely connected to the initial
duties as they address the same categories of products, impose the same level of duties, are adopted
pursuant to the same U.S. laws, and pursue the same objective of preventing or remedying injury
to the U.S. domestic steel and aluminium industries. Excluding the additional import duties on
derivative products would also prevent the Parties from securing a positive resolution to this dispute

1 See China's response to Panel question Nos. 1 and 2(a), paras. 1-7.
2 See China's response to Panel question Nos. 1, 82, and 83; China's comments on the United States'
response to Panel question Nos. 82 and 83.
3 See China's response to Panel question No. 87, para. 24, quoting China's request for the
establishment of a panel, p. 3.

in that the United States would be able to maintain its illegal safeguard measures on a narrower
range of products without consequence.4
II. THE SECTION 232 MEASURES ARE SUBJECT TO THE AGREEMENT ON SAFEGUARDS
AND ARE INCONSISTENT WITH CERTAIN PROVISIONS OF THAT AGREEMENT
8. Properly examined, the measures before the Panel are safeguard measures that are subject
to and inconsistent with the Agreement on Safeguards. These inconsistencies are not even
potentially justifiable under Article XXI(b) of the GATT 1994, an exception provision under a different
agreement.
A. The Section 232 Measures Fall Within the Scope of the Agreement on
Safeguards
9. In Indonesia – Iron or Steel Products , the Appellate Body identified certain "constituent
features" that must be present in order for a panel to properly determine that a measure constitutes
a safeguard measure.5 First, the measure must suspend, in whole or in part, a GATT obligation or
withdraw or modify a GATT concession. Second, the suspension of the GATT obligation, or the
withdrawal from or modification of the GATT concession in question, must be designed to preven t
or remedy serious injury to the Member's domestic industry caused or threatened by increased
imports of the subject product. Thus, China submits that the Panel is required to assess objectively
whether the Section 232 measures constitute safeguard measur es. China further submits that in
conducting its assessment, the Panel should follow the approach articulated by the Appellate Body
in Indonesia – Iron or Steel Products.6
10. It is indisputable that the Section 232 measures suspend a GATT obligation or withdraw or
modify a GATT concession. The Section 232 measures impose duties on steel and aluminium imports
that exceed the applicable bound rates set forth in the U.S. Schedule of Concessions in violation of
Article II of the GATT 1994. The exemptions granted to certain Members also confer an "advantage,
favour, privilege, or immunity" that is not extended "immediately" and "unconditionally" to like
products originating in the te rritories of all other Members, in violation of Article I:1 of the GATT
1994. For these reasons, the Section 232 measures present the first of the two requisite "constituent
features" of a safeguard measure identified by the Appellate Body in Indonesia – Iron or Steel
Products.7
11. The same actions that constitute a withdrawal or modification of a concession under Article XIX
may also constitute a violation of Articles II:1 and I:1 of the GATT 1994. Article XIX authorizes a
Member to suspend certain substantive obligations such that no violation of those obligations occurs,
so long as it conforms to the conditions set forth in that provision. Articles II:1and I:1 impose certain
substantive obligations. A measure that fails to conform to the requirements of Articles II:1 and I:1
necessarily violates the obligations set forth in those provisions unless an exception applies.8
12. It is similarly clear that the Section 232 measures present the second "constituent feature"
identified by the Appellate Body in Indonesia – Iron or Steel Products . There is ample evidence
demonstrating that the withdrawal or modifications of GATT concessions are "designed to prevent
or remedy serious injury" to the U.S. steel and aluminium industries. This evidence includes the
statutory basis for the Section 232 investigations, the express findings of the Section 232 Reports,
the relevant presidential proclamations, and other public statements by high -ranking U.S. officials,
including the U.S. President.9
13. For example, the conclusion that a central and independent a spect of the Section 232
measures is to prevent or remedy serious injury to the domestic industries is supported by a
memorandum prepared by the U.S. Department of Defense ("DoD"), expressly advising the U.S.

4 See China's response to Panel question No. 87, para. 25; China's comments on the United States'
response to Panel question No. 87; China's response to Panel question No. 96.
5 See China's first written submission, para. 35, quoting Appellate Body Report, Indonesia – Iron or
Steel Products, para. 5.60.
6 See China's first written submission, paras. 32-41.
7 See China's first written submission, para. 42. See also China's response to Panel question No. 89.
8 See China's response to Panel question No. 89, paras. 27-31.
9 See China's first written submission, Part IV.A.3.

Secretary of Commerce that the proposed restric tions on imports were not necessary to meet
national defence requirements. The memorandum reviewed the conditions described in the
Section 232 Reports, including the effects of increased imports on the condition of the domestic U.S.
steel and aluminium ind ustries, and concluded that these conditions do not "impact the ability of
DoD programs to acquire the steel or aluminum necessary to meet national defense requirements".
In reaching this conclusion, the Secretary of Defense stated that "U.S. military requ irements for
steel and aluminum each only represent about three percent of U.S. production."10
14. Taken together, this body of evidence establishes a "demonstrable link" between "the most
central" aspects of the measures at issue and "a specific objective" of preventing and remedying
serious injury to domestic industries.11
B. The United States Is Mistaken that Notification Determines the Substantive
Applicability of the Agreement on Safeguards
15. The U.S. contention that the measures at issue are not subject to the Agreement on
Safeguards rests entirely on the proposition that because the United States did not notify those
measures to the Committee on Safeguards as required by Article 12 of the Agreement on Safeguards
and Article XIX:2 of the GATT 1994, the Panel must conclude that the measures are not safeguard
measures. In other words, the United States would have the Panel believe that the proper
characterization of the measures at issue in relation to the covered agreements depends entirely
upon the unilateral decision of the United States not to notify its measures to the Committee on
Safeguards.12
16. Nothing in the text of the Agreement on Safeguards or Article XIX of the GATT 1994 supports
the conclusion that notification is a prerequisite to substantive applic ability. Article XIX:1(a) of the
GATT 1994 defines what a safeguard measure is. Article XIX:1(a) establishes that a safeguard
measure is a measure designed to prevent or remedy serious injury to a domestic industry caused
or threatened by increased imports , through the mechanism of suspending, withdrawing, or
modifying a GATT obligation or concession. It is these two elements that make a measure a
safeguard measure. Article XIX:1(a) does not refer to notification at all, much less as a prerequisite
to substantive applicability.13
17. The United States' "notice and invocation" argument cannot be reconciled with Article 12.8 of
the Agreement on Safeguards, which provides that "[a]ny Member may notify the Committee on
Safeguards of all laws, regulations, administra tive procedures and any measures or actions dealt
with in this Agreement that have not been notified by other Members that are required by this
Agreement to make such notifications." A safeguard measure is clearly a "measure or action dealt
with" in the Agreement on Safeguards. Under Article 12.1, a Member "taking a decision to apply or
extend a safeguard measure" is "required by this Agreement" to provide notification to the
Committee on Safeguards. Article 12.8 establishes that another Member "may notify the Committee
on Safeguards" when a Member "taking a decision to apply or extend a safeguard measure" has not
provided the required notification. Yet under the U.S. interpretation of Article 12, such an event
could never occur because the failure to provid e notification would mean that the measure in
question is not a safeguard measure, i.e. a "measure or action dealt with" in the Agreement on
Safeguards. Under the U.S. interpretation, Article 12.8 would be devoid of any meaning or practical
effect.14
18. The r equirement to provide notice is a legal obligation that Members have in relation to
measures that are, objectively, safeguard measures. Notification is not an element of what makes a
measure a safeguard measure in the first place. This conclusion based on the text of Article XIX and
the Agreement on Safeguards is fully consistent with the Appellate Body's findings in Indonesia –
Iron or Steel Products . The U.S. position that notification is a prerequisite to the substantive

10 See China's first written submission, paras. 68-70, quoting Letter from James N. Mattis, Secretary of
Defense, to Wilbur L. Ross Jr., Secretary of Commerce (2018).
11 See China's first written submission, para. 43, quoting Appellate Body Report, Indonesia – Iron or
Steel Products, paras. 5.60, 5.58, and 5.56.
12 See China's second written submission, para. 14.
13 See China's second written submission, para. 15.
14 See China's second written submission, para. 19; China's comments on the United States' closing
statement at the second meeting of the Panel, para. 25.

applicability of Article XIX and the Agreement on Safeguards finds no support in the text of those
provisions, and is contrary to the well -established principle that Members are not free to pick and
choose the legal disciplines to which their actions and measures are subject.15
C. The Sec tion 232 Measures Are Not Removed from the Agreement on
Safeguards by Virtue of Article 11.1(c)
19. The United States further argues that the measures at issue are not subject to the Agreement
on Safeguards by virtue of Article 11.1(c) of that agreement. Artic le 11.1(c) provides that the
Agreement on Safeguards "does not apply to measures sought, taken or maintained by a Member
pursuant to provisions of GATT 1994 other than Article XIX".
20. Article 11.1(a) of the Agreement on Safeguards provides that "[a] Member s hall not take or
seek any emergency action on imports of particular products as set forth in Article XIX of GATT 1994
unless such action conforms with the provisions of that Article applied in accordance with this
Agreement." The United States does not contest that, where a measure is properly characterized as
an "emergency action on imports of particular products as set forth in Article XIX of GATT 1994"
(i.e. as a safeguard measure), Article 11.1(a) requires the Member taking that action to do so
exclusively in accordance with Article XIX and the Agreement on Safeguards.
21. The only response that the United States has to Article 11.1(a) is its contention that because
the United States did not notify the measures at issue to the Committee on Safeguards, the United
States did not "take or seek" those measures pursuant to Article XIX of the GATT 1994 and therefore
the stricture in Article 11.1(a) does not apply.
22. The United States is mistaken in its view that notification to the Committee on Safeguards is
a prerequisite to the substantive applicability of the Agreement on Safeguards. Notification is a legal
obligation in respect of safeguard measures, not a definitional element of what makes a measure a
safeguard measure. By its terms, Article 11.1(a) of the Agreement on Safeguards applies to "any"
measure that is objectively characterized as a safeguard measure. The Section 232 measures are
objectively characterized as safeguard measures, and therefore the stricture established in
Article 11.1(a) applies to those measures.
23. For the same reason, the carve-out established in Article 11.1(c) does not apply to the Section
232 measures. Where a measure is properly characterized as a safeguard measure based on an
objective examination of its features, it is necessarily a m easure "sought, taken or maintained"
under Article XIX of the GATT 1994 and is, for that reason, subject to the Agreement on Safeguards
in accordance with Article 11.1(a).
24. For the United States, what matters is the legal basis for the measure as asserted unilaterally
by the responding Member. However, the text of the relevant provisions of the covered agreements,
as interpreted in prior panel and Appellate Body reports, makes clear that what matters is the
objective characterization of a measure based on an examination of its relevant features. A measure
that is objectively a safeguard measure does not become a measure "sought, taken or maintained
by a Member pursuant to provisions of GATT 1994 other than Ar ticle XIX" based on the unilateral
assertion – the "say-so" – of the Member taking the action. For these reasons, Article 11.1(c) of the
Agreement on Safeguards does not exempt the Section 232 measures from that agreement's scope
of application.16
25. China does not perceive any basis for the Panel to have recourse to supplementary means of
interpretation under Article 32 of the Vienna Convention in relation to Article 11.1(c). The
interpretation of the Agreement on Safeguards and Article XIX of the GATT 1994 that results from
the general rule of interpretation under Article 31 does not leave the meaning of the relevant
provisions ambiguous or obscure, or lead to a result which is manifestly absurd or unreasonable. On
the contrary, a proper consideration of the ordinary meaning, context, and object and purpose of
Article XIX and the Agreement on Safeguards leaves no doubt that "invocation and notification" are

15 See China's second written submission, paras. 20-25. See also China's comments on the United
States' closing statement at the second meeting of the Panel, Part I.C.

16 See China's second written submission, paras. 26-31. See also China's comments on the United
States' closing statement at the second meeting of the Panel, Part I.D.

not prerequisites to the substantive applicability of these provisions. The conclusion that "invocation
and notification" are not prerequisites to substantive applicability, far from being manifestly absurd
or unreasonable, is the only interpretive conclusion consistent with the object and purpose of the
Agreement on Safeguards, including its objecti ve of reimposing multilateral control over safeguard
and other grey -area measures. Thus, there is no reason for the Panel to consider supplementary
means of interpretation under Article 32.
26. But even if the Panel were to consider supplementary means of interpretation, nothing in the
negotiating history to which the United States refers supports its assertion that a Member may
unilaterally determine the law (if any) to which a particular measure is subject, including a unilateral
determination as to whether a particular measure is or is not a safeguard measure. The drafting
history of Article 11.1(c) to which the United States refers reflects nothing more than the drafters'
recognition that there are a variety of "trade -restrictive" measures that a Member may take under
the GATT 1994, in derogation of obligations that otherwise would apply. For example, a Member
may impose a quantitative restriction in derogation of Article XI:1 of the GATT 1994 if any of the
conditions in Article XI:2 of the GATT 1994 are sati sfied. The text that eventually became
Article 11.1(c) of the Agreement on Safeguards simply establishes that the agreement, although
governing a certain type of trade -restrictive measure (those described in Article XIX of the GATT
1994), does not apply to trade-restrictive measures taken "pursuant to" these other provisions.17
D. The Section 232 Measures Are Inconsistent with Articles 2.1, 2.2, 4.1, 4.2, 5.1,
7.1, 7.4, 11.1(a), 12.1, 12.2, and 12.3 of the Agreement on Safeguards
27. The Section 232 measures ar e inconsistent with multiple provisions of the Agreement on
Safeguards.
28. China submits that the United States had no right to impose safeguard measures because the
determinations of serious injury reached by the USDOC suffer from multiple, fatal flaws. These flaws
include the failure to establish the existence of "unforeseen developments"; the failure to apply the
Section 232 measures to products imported from all Members; the failure to examine all relevant
factors having a bearing on the situation of the d omestic industry; and the failure to avoid the
attribution of injury caused by other factors to that caused by increased imports. The USDOC also
failed to satisfy the overarching requirement of providing a "reasoned and adequate explanation" of
how the facts support its determinations of serious injury. Because of these multiple, critical failures,
the Section 232 measures have no legal basis. The United States therefore had no right to apply
safeguard measures to steel and aluminium imports.18
29. The United States has acted inconsistently with Article 2.1 of the Agreement on Safeguards
for two principal reasons. First, Article 2.1 makes clear that a Member may apply a safeguard
measure only where that Member has reached a determination of serious injury pursuant to the
relevant provisions of the Agreement on Safeguards, including Article 4. The Section 232
determinations were not reached in accordance with Articles 4.1 or 4.2. Consequently, the
Section 232 measures are inconsistent with Article 2.1. Second, it is well established that for a
safeguard measure to be imposed consistently with Article 2.1, the competent authority must
establish the existence of "unforeseen developments" as set forth in Article XIX:1(a) of the GATT
1994. The USDOC has failed to demonstrate the existence of "unforeseen developments".19
30. The United States has acted inconsistently with Article 2.2 because the Section 232 measures
do not apply to imported steel and aluminium products irrespective of their sources.20
31. The United States has a cted inconsistently with Article 4.1(c) because the USDOC did not
define the relevant "like or directly competitive" products in accordance with Article 4.1(c) prior to
determining that increased steel and aluminium imports have caused or are threatening t o cause
serious injury to U.S. domestic producers.21

17 See China's response to Panel question No. 97, paras. 12-17.
18 See China's first written submission, paras. 86 and 87.
19 See China's first written submission, paras. 88-93.
20 See China's first written submission, paras. 94-98.
21 See China's first written submission, paras. 99-108.

32. The United States has acted inconsistently with Article 4.2(a) because the United States failed
to ensure the data pertaining to the injury factors examined in the Section 232 Reports was
sufficiently representative of the domestic industry as a whole and to provide reasoned and adequate
explanations for its conclusions. Consequently, the United States has also violated Article 2.1.22
33. The United States has acted inconsistently with Article 4.2(b). Article 4.2(b) requires the
competent authority to establish the existence of a "genuine and substantial relationship of cause
and effect" between increased imports and serious injury. The USDOC's failure to define the relevant
domestic industries under Article 4.1(c) or to examine data sufficiently representative of those
industries under Article 4.2(a) necessarily results in a failure to establish a "genuine and substantial
relationship of cause and effect". In order to link the increased imports to serious injury, the USDOC
first had to define serious injury to the domestic industry in accordance with Article 4.1(c), which it
failed to do. The United States has also acted inconsistently with Article 4.2(b), second sentence,
because it has failed to ensure that i njury caused by factors other than the increased imports has
not been attributed to those imports.23
34. The United States has also applied safeguard measures beyond "the extent necessary to
prevent or remedy serious injury and to facilitate adjustment" as req uired under Article 5.1 of that
agreement. China has established that the United States violated Article 4.2(b). Thus, the United
States has violated Article 5.1, first sentence.24
35. The United States has acted inconsistently with Articles 7.1 and 7.4 of the Agreement on
Safeguards. China has demonstrated that the Section 232 measures were not imposed pursuant to
a valid finding of serious injury or threat of serious injury. Ipso facto, the Section 232 measures
have been imposed for longer than is "necessary to prevent or remedy serious injury and to facilitate
adjustment" and are therefore inconsistent with Article 7.1. The Section 232 measures were
imposed in March of 2018. The measures have therefore been in place for over one year. The
measures have not been progressively liberalized. Thus, the Section 232 measures have also been
imposed in a manner that is inconsistent with Article 7.4 of the Agreement on Safeguards.25
36. The United States has acted inconsistently with Article 11.1(a) of the Agreement on
Safeguards. Article 11.1(a) prohibits the imposition of safeguard measures unless those measures
are imposed consistently with Article XIX of the GATT 1994 and the provisions of the Agreement on
Safeguards. China has demonstrated that the United States has taken emergency action on imports
in a manner that is inconsistent with Articles 2, 4, 5, 7, and 12 (discussed below) of the Agreement
on Safeguards and, consequently, Article XIX of the GATT 1994.26
37. The United States has acted inconsistently with Article 12.1(a), (b), and (c), and Article 12.2
of the Agreement on Safeguards, and, consequently, Article XIX:2 of the GATT 1994. The United
States did not notify the WTO Committee on Safeguards prior to the USDOC's initiation of the
investigations or the publication of its findings, nor did it notify the Committee prior to its decision
to apply the Section 232 measures.
38. Finally, the United States has acted inconsistently with Article 12.3 of the Agreement on
Safeguards and, consequently, Article XIX:2 of the GATT 1994. Article 12.3 requires a Member
proposing to apply a safeguard measure to provide exporting Members with sufficient information
and time to allow for the possibility, through consultations, for a meaningful exchange on the issues
identified. The United States did not submit a notification under Article 12.1(b) that included an offer
to engage in consultations, nor did it notify its willingness to engage in consultations in accordance
with Article 12.3 on any other occasion. The United States expre ssly refused to engage in prior
consultations.27

22 See China's first written submission, paras. 109-119.
23 See China's first written submission, paras. 120-130.
24 See China's first written submission, paras. 131-134.
25 See China's first written submission, paras. 135-138.
26 See China's first written submission, paras. 139-140.
27 See China's first written submission, paras. 141-148.

39. The United States does not dispute that, once properly characterized as safeguard measures,
its measures violate the provisions of the Agreement on Safeguards identified by China in its request
for establishment of a panel and in its first written submission.28
E. Article XXI(b) of the GATT 1994 Does Not Apply to the Agreement on
Safeguards
40. Under well-established jurisprudence, the fact that the Agreement on Safeguards elaborates
upon Article XIX of the GATT 1994 and contains various references to the GATT 1994 is insufficient,
on its own, to establish that Article XXI of the GATT 1994 is available as a defence to violations of
the Agreement on Safeguards. The textual linkages between the Agreement on Safeguards and the
GATT 1994 are unlike the single circumstance in which the Appellate Body has found a GATT
exception applicable to a different covered agreement in the absence of an express incorporation of
the exception. The fact that the Agreement on Safeguard s does not expressly incorporate the
exceptions provisions of the GATT 1994, whereas other covered agreements do, creates a strong
presumption (at a minimum) that those exceptions are not available under the Agreement on
Safeguards.29
41. The United States' ar gument about the relationship between Article XXI and the Agreement
on Safeguards all comes back to its contention that because the United States did not notify its
measures to the Committee on Safeguards – that is, because the United States did not self-designate
its measures as actions taken under Article XIX and the Agreement on Safeguards – it follows that
those measures were "sought, taken or maintained … pursuant to provisions of GATT 1994 other
than Article XIX" and are therefore removed from the sco pe of application of the Agreement on
Safeguards by virtue of Article 11.1(c). China has already demonstrated that this contention is
incorrect. Notification is a legal requirement in respect of measures that are objectively safeguard
measures, not an element of what makes a measure a safeguard measure in the first place.30
42. For these reasons, the Panel should find that the Section 232 measures are safeguard
measures that are inconsistent with the Agreement on Safeguards, and that Article XXI(b) of the
GATT 1994 is not available as a potential defence to those violations.
III. THE SECTION 232 MEASURES ARE INCONSISTENT WITH ARTICLES I:1, II:1, AND
X:3(A) OF THE GATT 1994
A. Articles II:1(a) and (b) of the GATT 1994
43. The additional import duties of 25 percent on steel imports and 10 percent on aluminium
imports are covered by Article II:1(b) because they constitute "ordinary customs duties". The
additional import duties have been imposed on an ad valorem basis and are explicitly defined as
"ordinary customs duties".
44. The additional tariffs are indisputably effective "on … importation." Proclamations 9705 and
9704 provide that the additional import duties on steel and aluminium products respectively "shall
be effective with respect to goods entered, or withdrawn fro m warehouse for consumption, on or
after 12:01 a.m. eastern daylight time on March 23, 2018".
45. If the Panel were to find that the Section 232 measures are not "ordinary customs duties", it
should find instead that the measures constitute "other duties or ch arges" imposed inconsistently
with paragraph 1(b) of Article II because no such "other duty or charge" was recorded in the U.S.
Schedule of Concessions consistently with the Understanding on Interpretation of Article II:1(b) of
the GATT 1994.
46. The additional duties that the United States has imposed upon imports of steel and aluminium
products exceed its bound tariff commitments, in clear contravention of Article II. Prior to the
imposition of the Section 232 measures, the HTSUS provided that the products covered could enter

28 See China's second written submission, para. 5; China's opening statement at the first meeting of
Panel, para. 9; China's comments on the United States' closing statement at the second meeting of the Panel,
para. 33.
29 See China's response to Panel question Nos. 78 and 79; China's second written submission, para. 36.
30 See China's second written submission, para. 42.

the United States at rates ranging from duty -free to 6.5 percent. For all tariff headings and
subheadings covered by the measures, the imposition of the additional import duties of 25 percent
(50 percent in the case of Turkey) on steel pr oducts and 10 percent on aluminium products result
in the imposition of duties that exceed the bound levels in the U.S. Schedule of Concessions for
those products.31
47. For the same reasons elaborated in China's first written submission, the additional import
duties on derivative steel and aluminium products constitute ordinary customs duties. The additional
duties on derivative products also exceed the bound rates set out in the U.S. Schedule. Even if the
Panel were to conclude that the duties on derivative steel and aluminium products do not constitute
ordinary customs duties, they would nevertheless be prohibited under Article II:1(b), second
sentence, as they would constitute "other duties or charges" that were not recorded in the U.S.
Schedule and do not correspond to duties or charges applied by the United States as of the date of
the entry into force of the GATT 1994.32
48. Thus, the United States has acted inconsistently with Article II:1(a) and (b) of the GATT 1994,
because the United States has not provide d treatment no less favourable to steel and aluminium
products originating in China than that provided for in the United States' Schedule annexed to the
GATT 1994.
B. Article I:1 of the GATT 1994
49. The exemptions and quota agreements that the United States has entered into with certain
countries constitute an advantage, favour, privilege, or immunity that the United States has failed
to extend, immediately and unconditionally, to all other Members, in violation of Article I.
50. The exemptions have been granted from "customs duties and charges of any kind imposed on
or in connection with importation" as referenced in Article I:1. The quota agreements entered into
by Argentina, Brazil, and South Korea are also covered by Article I:1 because the proclamation s
setting forth those agreements constitute "rules and formalities in connection with importation". The
exemptions to the Section 232 measures therefore fall within the scope of application of Article I:1.
51. The exemptions have been granted from "customs duties and charges of any kind imposed on
or in connection with importation" as referenced in Article I:1. The quota agreements entered into
by Argentina, Brazil, and South Korea are also covered by Article I:1 because the proclamations
setting forth those agreements constitute "rules and formalities in connection with importation". The
exemptions to the Section 232 measures therefore fall within the scope of application of Article I:1.
52. Through the creation of country -specific exemptions, the United States ha s conferred an
"advantage, favour, privilege, or immunity" on steel and/or aluminium products originating in the
territories of certain Members that is not extended "immediately" and "unconditionally" to like
products originating in the territories of all other Members. Under the Section 232 measures,
Members with which the United States has a "security relationship" can negotiate unconditional
exemptions or exemptions in exchange for quota agreements that ensure large volumes of imports
reflecting their historic import performance will be subject to normal duty rates. These Members can
also choose to subject their imports to additional duties when doing so will best suit the needs of
their domestic industries. No other Members have been permitted by the United States to maximize
the competitive opportunities for their products in the same manner as Argentina, Australia, Brazil,
or South Korea. The "advantage" conferred by this opportunity has not been granted "immediately"
or "unconditionally" to all other M embers. Thus, the United States has violated the obligation set
forth in Article I:1 of the GATT 1994.33
53. The additional import duties on derivative products are similarly inconsistent with Article I:1.
The United States has exempted Argentina and Australia from the additional duties on derivative
aluminium and steel products, and Brazil and South Korea from t he additional duties on derivative
steel products. Furthermore, the United States has exempted Canada and Mexico from the additional
duties on both derivative steel and aluminium products. In granting exemptions to these Members,
the United States has conferred an advantage on derivative steel and aluminium products originating

31 See China's first written submission, paras. 151-155.
32 See China's second written submission, paras. 129-134.
33 See China's first written submission, paras. 156-164.

within those Members that it has failed to accord to imports of like derivative products from all other
Members, including China.34
C. Article X:3(a) of the GATT 1994
54. The United States also administers the product-specific exclusion process in a manner that is
not uniform, impartial, or reasonable as required under Article X:3(a).35 China is not challenging the
specific legal instruments that regulate the product exclusion process und er Article X:3(a) of the
GATT 1994. China is challenging the administration of the product exclusion process.36 The terms of
Article X:3(a) require the USDOC to evaluate all exclusion requests "'consistently and predictably"'
and in a "'fair, unbiased and unprejudiced manner'" that is "in accordance with reason". 37 The
differential treatment of exclusion requests where an objection is filed does not satisfy this standard.
IV. THE SECTION 232 MEASURES ARE NOT JUSTIFIED UNDER ARTICLE XXI(B) OF THE
GATT 1994
A. The Subparagraphs of Article XXI(b) of the GATT 1994 are Not "Self-Judging"
55. In the United States' view, Article XXI(b) is "self -judging" in its entirety, to include the
applicability of the three circumstances identified in subparagraphs XXI(b)(i) -(iii). The most
fundamental problem with the U.S. interpretation of Article XXI(b) is quite apparent: its failure to
give meaningful effect to the subparagraphs of that provision. 38 The U.S. interpretation of
Article XXI(b) does not make sense in the English tex t, cannot be reconciled with the equally
authentic Spanish and French texts, is inconsistent with the principle of effective treaty
interpretation, and is contrary to the object and purpose of the GATT 1994.39
1. Ordinary meaning
56. China and the United State s do not disagree that the phrase "which it considers" in the
chapeau to Article XXI(b) means that at least some element of Article XXI(b) may be determined by
the invoking Member in its discretion. The question is how far this discretion extends. There is no
basis for the U.S. position that this discretion extends to the subparagraphs.40
57. If the self-judging portion of Article XXI(b) were interpreted to encompass the subparagraphs,
those subparagraphs would serve no effective purpose within Article XXI(b). The interpretation and
effect of Article XXI(b) would be no different than if the subparagraphs did not exist at all. Such an
interpretation would be contrary to the well -established principle that the treaty interpreter must
"give meaning and effect to al l the terms of a treaty", and may not "adopt a reading that would
result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility". The United
States has no meaningful answer to this glaring flaw in its interpretation of Article XXI(b). Knowing
that it has to say something about the subparagraphs and their role within Article XXI(b), the United
States asserts that the subparagraphs exist merely to "guide a Member's exercise of its rights under
this provision".41
58. China is not aware of a ny other instance in which the covered agreements have been
interpreted to provide mere suggestions for how Members might choose to exercise a unilateral
right. More generally, China is not aware of any authority for the proposition that such an
interpretation of a treaty provision is consistent with the principle of effective treaty interpretation.
Nor has the United States referred to any such authority. "Guiding a Member's exercise of its rights"
does not give meaning and effect to treaty text if it rema ins entirely within the discretion of each

34 See China's second written submission, Part VI.E.
35 See China's first written submission, Part V.C.
36 See China's response to Panel question No. 2(d).
37 See China's first written submission, para. 174 (citations omitted).
38 See China's opening statement at the first meeting of the Panel, para. 20.
39 See China's comments on the U.S. response to Panel question No. 90.
40 See China's opening statement at the first meeting of the Panel, para. 22.
41 See China's opening statement at the second meeting of the Panel, paras. 32 and 33, quoting United
States' first written submission, para. 3 (emphasis added).

party to interpret and apply that text, i.e. if the text has no objective meaning among the parties
that are bound by it.42
59. The United States further asserts that the first two subparagraphs of Article XXI(b) (the
"relating to" subparagraphs) modify the term "interests" within the chapeau, whereas the United
States acknowledges that the third subparagraph ("taken in time of") can only be understood to
relate to the term "action".43
60. By arguing that the first two sub paragraphs modify the term "interests", the United States
seeks to place at least those two subparagraphs within the relative clause that begins "which it
considers". The United States further contends that all of the elements of that relative clause –
including the determination of whether the invoking Member's security interests "relate to" the
subject matter of the first two subparagraphs – are committed to the Member's own judgment. In
this way, the United States seeks to extend the self-judging element of Article XXI(b) to the subject
matter applicability of its subparagraphs.44
61. China does not accept the premise that anything contained within the relative clause is
necessarily "self-judging". Among other considerations, such an interpretation would still give rise
to a problem of effective treaty interpretation: what purpose do the subparagraphs serve if their
applicability is committed to the invoking Member's own judgment? Thus, even if the United States
were correct that the first two subparagraphs modify "interests", it would not necessarily follow that
those two subparagraphs are "self-judging".45
62. But even accepting that premise, the third subparagraph, at a minimum, is not a part of that
relative clause. Rather, it forms a noun phrase with the word "action" ("any action taken in time of
war or other emergency in international relations"). The relative clause beginning "which it
considers" – the portion that the United States considers "self-judging" – concerns the necessity of
that type of action for the protection of the invoking Member's essential security interests. Even
under the U.S. interpretation, there is no basis to conclude that the "self -judging" element of
Article XXI(b)(iii) extends to the determination of whether a particular action is one of that type.46
63. The same is true of the other two subparagraphs of Article XXI(b), because they, too, relate
to the term "action" and not to the term "interests". Each of the subparagraphs of Article XXI(b)
forms a noun phrase with the word "action" and describes a type of action for which a Member may
seek justification under that provision. Whether the action for which justification is sought is one of
the enumerated types is an objective matter to be determined by a panel and does not fall within
the portion of Article XXI(b) that the United States considers to be "self-judging".47
64. The U.S. interpretation of Article XXI(b) would lead to an outcome in which the first two
subparagraphs are "self -judging" under the U.S. "single r elative clause" theory, while the third
subparagraph is not "self-judging" because it does not form part of that relative clause. Obviously
this does not make sense. Just as it does not make sense that Article XXI(b) would have been drafted
so that the first two subparagraphs relate to the term "interests" while the third subparagraph relates
to the term "action", it likewise does not make sense that Article XXI(b) would have been drafted so
that the subject matter applicability of the first two subparagraphs is "self-judging" while the subject
matter applicability of the third subparagraph is not. Yet that is the outcome to which the U.S.
interpretation inevitably leads, no matter how hard the United States tries to avoid that result.48
65. The United States' convoluted reading of the English text is also impossible to reconcile with
the equally authentic Spanish and French texts, especially the former. This is because the Spanish
text makes clear that each of the three subparagraphs relates to "action" ("medida s") and not to
"interests" ("intereses"). By seeking to impugn the accuracy of the Spanish text of the GATT 1994,
United States has effectively acknowledged that its interpretation of Article XXI(b) cannot be

42 See China's second written submission, para. 87.
43 See China's second written submission, para. 58.
44 See China's second written submission, para. 62.
45 China's second written submission, para. 63.
46 See China's comments on the United States' response to Panel question No. 90, para. 38.
47 See China's comments on the United States' response to Panel question No. 90, para. 39.
48 See China's second written submission, para. 66.

reconciled with that authentic text. 49 By contrast, China's proposed interpretation of Article XXI(b)
is based on a harmonious and consistent understanding of how all three subparagraphs in the English
text relate to the chapeau.50
2. Context
66. The U.S. interpretation of Article XXI(b) is not supported by the context of that provision. The
most immediate and relevant context for interpreting Article XXI is Article XX. Like Article XXI,
Article XX consists of a chapeau followed by an enumeration of the specific types of measures that
a Member may adopt notwithstanding other provisions of the GATT 1994. Also like Article XXI, each
of the enumerated items under the chapeau begins with a relational standard that is appropriate to
the particular subject matter of that item ("necessary to", "relating to", "imposed for", "undertaken
in pursuance of", "involving", "essential to"). It is beyond dispute that the relational standards under
Article XX are objective standards that a panel must interpret and apply as part of its assessment of
the matter, whenever the responding Member invokes one of the Article XX exceptions in its defence
of a non-conforming measure.
67. By their terms, both Article XX and Article XXI require a two -step inquiry: (1) whether the
measure or action at issue falls within the scope of at least one of the enumerated types of measures
or actions that Members may take; and (2) whether the requirements of the chapeau are satisfied.
The Appellate Body has held in the context of Article XX that a panel must first determine that the
measure or action at issue falls within the scope of one of the enumerated exceptions, and only then
proceed to evaluate whether the requirements of the chapeau are satisfied.51
68. The context provided by Article XX indicates that the chapeau inquiry under Article XXI comes
after a panel has determined that one or more of the enumerated exceptions is applicable to the
non-conforming action in question. Subject matter applicability is a determination for a panel to
make in both cases, while it is only a portion of the c hapeau inquiry that is committed to the
Member's judgment under Article XXI.52
69. The availability of a non -violation nullification or impairment claim for cases in which
Article XXI(b) is properly invoked does not support the conclusion that Article XXI(b) is entirely self-
judging, as the United States suggests. Nothing in the ordinary meaning of Article XXI(b), or in the
context provided by Article XXIII, suggests any interpretative connection between these two
provisions. The negotiating history to which the United States refers suggests nothing more than an
agreement by the Contracting Parties that even if an inconsistent measure is justified under
Article XXI(b), that justification would not preclude a finding of non -violation nullification or
impairment. This conclusion has no bearing upon the proper interpretation of Article XXI(b) to
determine when an inconsistent measure may be justified in the first place. Most importantly, for
present purposes, nothing in that negotiating history suggests that the sel f-judging portion of
Article XXI(b) was meant to encompass the applicability of the subparagraphs.53
3. Object and purpose
70. The conclusion that the subparagraphs of Article XXI(b) are "self-judging" is also contrary to
the object and purpose of the GATT 199 4. The United States has no genuine argument that its
proposed interpretation of Article XXI(b) is supported by a consideration of the object and purpose
of the GATT 1994. The United States asserts that "the text of Article XXI establishes that the
invocation of this exception is self -judging by the Member taking action". On the basis of this
assertion, the United States concludes, in essence, that it is consistent with the object and purpose
of the GATT 1994 to interpret Article XXI(b) in accordance with the United States' understanding of
what the text means. Of course, this reasoning is backwards. The consideration of object and
purpose is part of the interpretive process of establishing what the text means in the first place, not

49 See China's opening statement at the second meeting of the Panel, para. 17; China's second written
submission, paras. 69-84.
50 See China's second written submission, para. 51.
51 See China's opening statement at the first meeting of the Panel, paras. 48 and 49; citing Appellate
52 See China's opening statement at the first meeting of the Panel, para. 50. See also China's second
written submission, paras. 92-94.
53 See China's opening statement at the first meeting of the Panel, para. 78.

a consideration that comes after the meaning of the text has been established. The United States'
circular approach to object and purpose would effectively deprive this element of Article 31(1) of the
Vienna Convention of any interpretive significance.54
71. It is evident, however, w hy the United States must take this circular approach to its
examination of object and purpose. Properly considered as part of the interpretive process of
determining what Article XXI(b) means, the object and purpose of the GATT 1994 supports only one
conclusion, namely that the subparagraphs of that provision are not "self-judging".
72. The Appellate Body has repeatedly affirmed that "the security and predictability of 'the
reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs
and other barriers to trade' is an object and purpose of the WTO Agreement, generally, as well as
of the GATT 1994". Nothing could be more inimical to this understanding of the object and purpose
of the GATT 1994 than the United States' propose d interpretation of Article XXI(b). If adopted, the
United States' proposed interpretation of Article XXI(b) would allow Members to justify literally any
GATT-inconsistent measure merely by invoking this provision, without any possibility for meaningful
review by the DSB. The "reciprocal and mutually advantageous arrangements directed to the
substantial reduction of tariffs and other barriers to trade" embodied in the GATT 1994 would no
longer be "secure" or "predictable" under this interpretation – precisely the opposite.55
73. Not only is China's interpretation the only consistent and coherent interpretation of
Article XXI(b) across all three authentic texts, it is also the only understanding that gives effect to
each of the subparagraphs and that is consistent with the object and purpose of the GATT 1994.
China's interpretation of Article XXI(b) is fully consistent with the security and predictability of the
rules-based multilateral trading system. By recognizing that the subparagraphs of Article XXI(b)
impose objectively reviewable constraints upon the circumstances in which a Member may seek to
justify a GATT-inconsistent measure under this provision, China's interpretation safeguards the gains
that Members have made toward the reduction in tariffs and other barriers to trade over successive
rounds of negotiations and ensures the predictable implementation of the rules that Members have
agreed. Moreover, China's approach to its consideration of object and purpose, unlike that of the
United States, doe s not presuppose the final interpretive result. Instead, China's interpretation is
based on the ordinary meaning of the terms used in Article XXI(b) interpreted in their context and
in the light of the object and purpose of the GATT 1994.56
4. "Subsequent agreement" and "Members' views"
74. The baselessness of the U.S. interpretation is underscored by two additional arguments. The
first is its contention that there exists a "subsequent agreement" that Article XXI(b) is self-judging
in its entirety, and the seco nd is its lengthy recitation of "Members' views" concerning the
interpretation of Article XXI(b).57
75. The alleged "subsequent agreement" to which the United States refers is the decision of the
Contracting Parties adopted in 1949 under Article XXIII of the G ATT in the matter pertaining to
United States Export Measures. There are two basic problems with the U.S. reliance on the decision
of the Contracting Parties in United States Export Measures. The first is that the decision does not
constitute a "subsequent agreement" within the meaning Article 31.3(a). The second reason is that
the decision in United States Export Measures does not stand for the proposition that Article XXI(b)
is entirely self-judging. If anything, it stands for the opposite proposition.58
76. The United States does not explain the interpretative significance that it believes the Panel
should attach to the "views" previously expressed by certain Members (assuming, for the sake of
argument, that the United States has accurately recounted those "views") regarding Article XXI(b).
Notably, the United States does not contend that the "views" previously expressed by certain
Members constitute evidence of a "subsequent practice in the application of the treaty which

54 See China's second written submission, paras. 95-97, quoting United States' response to Panel
question No. 55(a), para. 254.
55 See China's second written submission, para. 99, quoting Appellate Body Report, EC – Computer
Equipment, para. 82.
56 See China's comments on the United States' response to Panel question No. 90, para. 40.
57 See China's opening statement at the first meeting of the Panel, para. 60.
58 See China's opening statement at the first meeting of the Panel, paras. 62-68.

establishes the agreement of the part ies regarding its interpretation" within the meaning of
Article 31.3(b) of the Vienna Convention. This is a tacit concession by the United States that no such
"subsequent practice" exists. The Panel's consideration of this portion of the U.S. submission co uld
end there, as the unilateral "views" of individual Members, even if accurately recounted, have no
interpretative significance under accepted principles of treaty interpretation. In any event, China
considers that the panel in Russia – Traffic in Transit comprehensively reviewed the history of past
practice under Article XXI(b) and reached the right conclusion. At most, this history "reveals
differences in positions and the absence of a common understanding regarding the meaning of
Article XXI."59
5. Supplementary means of interpretation
77. China welcomes the apparent agreement between China and the United States that it is not
strictly necessary for the Panel to resort to supplementary means of interpretation under Article 32
of the Vienna Convention. Like the United States, China considers that the application of the general
rule of interpretation in Article 31 of the Vienna Convention does not leave the meaning of Article
XXI(b) of the GATT 1994 ambiguous or obscure, or lead to a result which is manifestl y absurd or
unreasonable. Properly interpreted in accordance with Article 31, it is clear that the subparagraphs
of Article XXI(b) are not "self-judging". The United States is simply mistaken in its contrary view.
78. To the extent that the Panel nevertheless wishes to take supplementary means of
interpretation into account, an examination of those means of interpretation would only serve to
confirm that the applicability of the subparagraphs of Article XXI(b) to the measure for which
justification is sought is not a matter that is committed to the invoking Member's own judgment.60
79. The negotiating history of what ultimately became Article XXI(b) of the GATT 1994 confirms
that the drafters included the subparagraphs in that provision in order to impose objective
constraints upon the circumstances under which a Member could invoke this provision to justify a
GATT-inconsistent action.61 In response to the concern raised by the delegate from the Netherlands
that Article XXI(b) would open "a very big loophole in the whole Charter", the U.S. delegate explained
that:
We gave a good deal of thought to the question of the security exception which we
thought should be included in the Charter. We recognized that there was a great danger
of having too wide an exception and we could not put it into the Charter, simply by
saying: "by any Member of measures relating to a Member's security interests" because
that would permit anything under the sun . Therefore we thought it well to draft
provisions which would take care of real ess ential security interests and, at the same
time, so far as we could, to limit the exception so as to prevent the adoption of
protection for maintaining industries under every conceivable circumstance.62
80. The U.S. delegate continued:
I think there must be some latitude here for security measures. It is really a question
of a balance. We have got to have some exceptions. We cannot make it too tight,
because we cannot prohibit measures which are needed purely for security reasons. On
the other hand, we cannot make it so broad that, under the guise of security, countries
will put on measures which really have a commercial purpose.

59 See China's opening statement at the first meeting of the Panel, paras. 69-71, quoting Panel Report,
60 See China's second written submission, paras. 105-112.
61 See China's opening statement at the first meeting of the Panel, paras. 35-46.
62 See China's second written submission, para. 107, quoting Second Session of the Preparatory
Committee of the United Nations Conference on Trade and Employment, Verbatim Report, Thirty-Third Meeting
of Commission A Held on Thursday, 24 July 1947, E/PC/T/A/PV/33, pp. 20-21 (as corrected by Second Session
of the Preparatory Committee of the United Nations Conference on Trade and Employment, Corrigendum to
Verbatim Report of Thirty-Third Meeting of Commission A, E/PC/T/A/PV/33.Corr.3, pp. 20-21) (emphasis
added).

We have given considerable thought to it and this is the best we could produce to
preserve that proper balance.63
81. The interpretation of Article XXI(b) now advocated by the United States in the context of this
dispute would have exactly the effect that the U.S. delegate explained would not be permitted under
the text that ultimately became Article XXI(b). By depri ving the subparagraphs of any objective
meaning, the U.S. interpretation of Article XXI(b) "would permit anything under the sun" and allow
Members "under the guise of security" to "put on measures which really have a commercial purpose".
The "balance" that the drafters believed they had struck by enumerating the specific circumstances
in which a Member could invoke Article XXI(b) would become illusory.64
82. The negotiating history thus confirms that the effect of the subparagraphs that is apparent
from their ordinary meaning – to limit the circumstances in which a Member may invoke
Article XXI(b) – is the effect that the drafters intended. The meaningless interpretation that the
United States now advocates – that the subparagraphs exist merely to "guide a Member's exercise"
of its allegedly unilateral rights under Article XXI(b) – would give rise to the very loophole that the
drafters intended to close by including the subparagraphs.65
83. In sum, the United States has presented no credible argument that the subparagraphs of
Article XXI(b) are anything other than objectively reviewable by this Panel. Two prior panel reports,
Russia – Traffic in Transit and Saudi Arabia – Protection of IPRs , have now concluded that the
subparagraphs of Article XXI(b) are object ively reviewable by dispute settlement panels, and the
United States has offered no credible basis to question the validity of those prior interpretations.
B. The United States Has Not Demonstrated the Objective Applicability of
Article XXI(b)(iii) of the GATT 1994
84. Apparently recognizing the untenable nature of its position that Article XXI(b) is entirely
"self-judging", the United States claims that "information available in relation to its actions under
Section 232" is "consistent with the United States considering the measures at issue to be taken 'in
time of war or other emergency in international relations'". 66 In this way, the United States
apparently seeks to rely upon Article XXI(b)(iii) without actually invoking it, and without making a
prima facie case of the applicability of this subparagraph.
85. The Panel should reject the U.S. approach. The United States, as the party claiming that its
measures are justified under Article XXI(b), has the burden of proving the applicability of this
exception to the m easures at issue. The first element that the United States must prove, in this
regard, is that the measures at issue are covered by at least one of the three types of actions
enumerated in the subparagraphs of Article XXI(b). This requires the United States to identify which
subparagraph it considers applicable and provide evidence and legal argument sufficient to
demonstrate that the measures at issue fall within this subparagraph. Unless and until the United
States has demonstrated that the measures at is sue are covered by one or more of the
subparagraphs of Article XXI(b), the meaning of the phrase "its essential security interests" in the
chapeau to Article XXI(b), and whether the United States has identified those interests in good faith,
simply does not arise.
86. The United States has made no effort to prove the applicability of any of the subparagraphs.
Instead, it has done nothing more than leave hints and clues for the Panel to "make the case" on
behalf of the United States. This approach is incompatible with the allocation of the burden of proof
and with the role of the Panel under Article 11 of the DSU. The Panel should refuse to accept the
United States' invitation to have the Panel make out a defence for it.67

63 See China's second written submission, para. 108, Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, Verbatim Report, Thirty-Third Meeting of
Commission A Held on Thursday, 24 July 1947, E/PC/T/A/PV/33, p. 21 (emphasis added).
64 See China's second written submission, para. 109.
65 See China's opening statement at the first meeting of the Panel, para. 46.
66 See China's comments on the United States' response to Panel question No. 92, para. 42, quoting
United States' response to Panel question No. 92, para. 42.
67 See China's comments on the United States' response to Panel question No. 92, paras. 43 and 44.

87. China, by contrast, has established a prima facie case that the Section 232 measures are
objectively characterized as safeguard measures and that these measures are therefore subject to
the disciplines of the Agreement on Safeguards. The two propositions that the United States has
relied upon to contest that conclusion, i.e. notification is a prerequisite to the substantive
applicability of Article XIX of the GATT 1994 and the Agreement on Safeguards, and the Section 232
measures are removed from the coverage of the Agreement on Safeguards by vir tue of
Article 11.1(c)), are false. China has also demonstrated that Article XXI(b) is not available as a
defence to violations of the Agreement on Safeguards. For these reasons, China believes that the
Panel should find that the Section 232 measures are safeguard measures that are inconsistent with
the Agreement on Safeguards, and that Article XXI(b) of the GATT 1994 is not available as a potential
defence to those violations. A report containing these findings would achieve a satisfactory resolution
of this matter in accordance with the objectives of the DSU. China considers that there should be no
occasion for the Panel to interpret and apply Article XXI(b), other than as necessary to conclude that
it does not apply to the Agreement on Safeguards.68
88. In any event, the hints and clues that the United States has left are insufficient to conclude
that the measures at issue are covered by subparagraph (iii). To begin with, the United States relies
upon an interpretation of the phrase "other emergency in interna tional relations" that would
encompass any situation of "conflict" between nations of a "political or economic" nature. This
interpretation fails to take into account the critical context provided by the full phrase "war or other
emergency in international relations". The panels in Russia – Traffic in Transit and Saudi Arabia –
Protection of IPRs correctly took this context into account to conclude that "political or economic
differences" between Members do not constitute an "other emergency in internationa l relations"
"unless they give rise to defence and military interests, or maintenance of law and public order
interests".69
89. To interpret Article XXI(b)(iii) otherwise would mean that the entire subject matter of the
covered agreements – the economic relations among Members – could be invoked by a Member at
any time to justify measures that are inconsistent with those very agreements, to the extent that
Article XXI(b) applies to the measure in question. This interpretation would open a massive loophole
in the disciplines that the Members have negotiated and agreed. The present dispute is a case in
point. As China and the other co -complainants have demonstrated, the rationale set forth in the
Section 232 Reports is, fundamentally, a safeguard rationale. Articl e XIX of the GATT 1994
specifically refers to safeguard measures as an " emergency action on imports" resulting from
"unforeseen developments". Article XIX and the Agreement on Safeguards impose extensive
substantive and procedural conditions on when Members may impose these types of measures. If a
Member could characterize the economic concerns that motivate the imposition of a safeguard
measure as an "emergency in international relations" under Article XXI(b)(iii), it could bypass by
means of an exception the substantive and procedural concerns that the Members have agreed for
the imposition of a safeguard measure. In fact, that is exactly what the United States is trying to do
in this case.70
90. The United States effectively acknowledges that it is asking the Panel to make the case for it
by asking the Panel to peruse the Section 232 Reports in search of evidence that would support a
defence under Article XXI(b)(iii), citing the example of the panel's approach in Russia – Traffic in
Transit. Even assuming that the approach of that panel was correct, what the United States overlooks
is the fact that the "war or other emergency in international relations" at issue in Russia – Traffic in
Transit was one acknowledged by the international community as an actual arme d conflict. As that
same panel observed, the further removed a particular situation is from one of armed conflict or a
breakdown in law and public order, the greater the evidentiary burden a Member must face in
seeking to demonstrate that the situation constitutes an "emergency in international relations".71
91. In the present case, the United States asserts the objective applicability of Article XXI(b)(iii)
to a situation that exhibits at most a theoretical or speculative connection to an unspecified potential
armed conflict or breakdown in law and public order, even if one were to credit in full the rationale

68 See China's opening statement at the second meeting of the Panel, paras. 4-14.
69 See China's comments on the United States' response to Panel question No. 92, para. 45, quoting
Panel Report, Russia – Traffic in Transit, para. 7.75; Panel Report, Saudi Arabia – Protection of IPRs,
para. 7.245.
70 See China's comments on the United States' response to Panel question No. 92, para. 46.
71 See China's comments on the United States' closing statement at the second meeting of the Panel,
para. 48.

and evidence set forth in the Section 232 Reports. This simply is not a case in which the Panel can
take notice of the existence of an armed conflict or other emergency in international relations. On
the contrary, what the United States contends is an "emergency in international relations" in the
present dispute is very far "removed from armed conflict, or a situation of breakdown of law and
public order", to the extent that it bears any relationship to an "emergency in international relations"
at all. The Panel should therefore hold the United States to its burden of proof in full.72
92. The United States' closing statement represents its fullest elaboration y et of its claimed
defence under Article XXI(b)(iii), yet it remains inadequate to raise before the Panel, let alone prove,
that the Section 232 measures constitute an "action … taken in time of war or other emergency in
international relations" as this phr ase is properly interpreted. In its closing statement, the United
States restates the rationale for the Section 232 measures as set forth in the Steel Report and cites
a few facts referenced in that report, but does not come close to presenting a prima facie case of
the objective applicability of Article XXI(b)(iii) to the Section 232 measures. Notably, the United
States does not refer at all in its closing statement to the rationale and evidence relating to the
Section 232 measures on aluminium.73
93. The deficiencies in the Steel Report and in the United States' summary thereof are, on their
own, sufficient to reject any possibility of the United States proving that the Section 232 measures,
as safeguard measures, simultaneously constitute "action[s] … taken i n time of war or other
emergency in international relations" within the meaning of Article XXI(b)(iii).74

72 See China's comments on the United States' closing statement at the second meeting of the Panel,
73 See China's comments on the United States' closing statement at the second meeting of the Panel,
para. 47.
74 See China's comments on the United States' closing statement at the second meeting of the Panel,
paras. 65-76.

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

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

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

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

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

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

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

ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Egypt 42
Annex C-2 Integrated executive summary of the arguments of the European Union 45
Annex C-3 Integrated executive summary of the arguments of Hong Kong, China 50
Annex C-4 Integrated executive summary of the arguments of India 53
Annex C-5 Integrated executive summary of the arguments of Japan 56
Annex C-6 Integrated executive summary of the arguments of New Zealand 59
Annex C-7 Integrated executive summary of the arguments of Norway 62
Annex C-8 Integrated executive summary of the arguments of the Russian Federation 65
Annex C-9 Integrated executive summary of the arguments of Singapore 71
Annex C-10 Integrated executive summary of the arguments of Switzerland 76
Annex C-11 Integrated executive summary of the arguments of Türkiye 81
Annex C-12 Integrated executive summary of the arguments of Ukraine 86

ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF EGYPT
I. Introduction
1. Egypt focuses its views in these proceedings on certain legal issues raised in this dispute. In
particular, the following two key issues:
(1) Whether the measure adopted pursuant to Section 232 of the Trade Expansion Act of
1962, (the Section 232 measure) constitutes a safeguard measure within the meaning
of Article XIX of the GATT 1944 and the Agreement on Safeguards; and
(2) Whether the measure at issue violates Article II of the GATT 1994.
II. Whether the national security measure adopted pursuant to Section 232 of the Trade
Expansion Act of 1962 (the Section 232 measure) constitutes a safeguard measure within
the meaning of Article XIX of the GATT and the Agreement on Safeguards
2. In Egypt's view, Article XIX of the GATT 1994 gives the right to adopt safeguard measures
and requires that, first, a measure must suspend, in whole or in part, a GATT obligation or
withdraw or modify a GATT concession; second, the suspension, withdrawal, or modification
in question must be designed to prevent or remedy serious injury to the Member's domestic
industry caused or threatened by increased imports of the subject product. As stated by the
Appellate Body in Indonesia – Iron or Steel Products , "whether a particular measure
constitutes a safeguard measure for purposes of WTO law can be determined only on a
case-by-case basis."1 The Appellate Body also noted that "[a]s part of its determination, a
panel should evaluate and give due consideration to all relevant factors …" and that "no one
such factor is, in and of itself, dispositive of the question of whether the measure constitutes
a safeguard measure within the meaning of Article 1 of the Agreement on Safeguards."2
3. Egypt recalls that, according to consistent WTO jurisprudence, "the manner in which
municipal law characterizes a measure is not determinative for its characterization under the
covered agreements".3 Rather, "[t]he label given to an instrument under municipal law … is
not dispositive and cannot be the end of [the Panel's] analysis".4
4. Accordingly, the task of the Panel is not to determine whether the measure at issue qualifies
as a safeguard measure under US domestic law. In fact, this approach would be inconsistent
with the Panel's jurisdiction ratione materiae under Article 1.1 of th e DSU. The question is
rather whether the measure qualifies as a safeguard measure within the meaning of
Article XIX:1(a) of the GATT 1994 and the Agreement on Safeguards.
5. Egypt observes that a safeguard measure is one that seeks to provide, through the violation
of an existing GATT commitment, relief to the domestic industry as a result of an unforeseen
increase in imports which causes (or threatens to cause) serious injury. When these
elements are met, the provisions of Article XIX:1(a) of the GATT 199 4 and the Agreement
on Safeguards are engaged. The characterization of the measure as a safeguard, however,
is not to be confused with the ultimate purpose sought by a Member. For instance, a Member
might seek to provide relief to the domestic industry through a safeguard measure because,
by doing so, it ultimately seeks to preserve or create jobs; promote food security, especially
in highly sensitive agricultural products; or, ensure the supply of critical products in the
domestic market or of products tha t are critical for certain key uses in the country. Thus,
the ultimate policy goals do not affect the characterization of a measure as a safeguard when
the objective standards set out in Article XIX:1(a) of the GATT 1994 and the Agreement on

1 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.54.
2 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60.
3 Appellate Body Report, Canada – Renewable Energy, para. 5.127.
4 Appellate Body Report, US – Large Civil Aircraft (2nd complaint), para. 593.

Safeguards are met. In other words, the objective conditions set out in Article XIX:1(a) of
the GATT 1994 and the Agreement on Safeguards are key to determining whether a measure
constitutes a safeguard; the ultimate policy goals pursued through that measure are not.
6. Egypt thus respectfully requests the Panel to take into account these considerations when
determining whether the Section 232 measure constitutes a safeguard measure within the
meaning of Article XIX:1(a) of the GATT 1994 and the Agreement on Safeguards.
III. Whether the measure at issue violates Article (II) of the GATT 1994 (Schedules of
Concessions) because it exceeds the bound rates
7. China argues that the Section 232 measure exceeds the bound rates in the US Schedule of
Concessions, thus in violation of Article II:1(a) and (b) of the GATT 1994.5 The United States
does not contest that the Section 232 measure exceeds the relevant bound rates. Rather, it
argues that the national security exception in the GATT "left it to each [GATT party] to judge
what actions it considered necessary for the protection of its essential security interests" and
that "[a] panel could therefore not address the v alidity of, nor the motivation for, the
United States’ invocation of [the exception]".6 The United States thus invoke the so -called
national security exception in GATT Article XXI in defense of the steel and aluminum tariffs.
8. In Egypt's view, Article II of the GATT 1994 (Schedules of Concessions) contains two main
obligations with respect to tariffs; (i) WTO Members may not adopt "ordinary customs duties"
beyond the bound rates indicated in their Schedules of Concessions (GATT Article II:1(b),
first sentence); and (ii) WTO Members may not adopt "other duties and charges" different
from "ordinary customs duties" (GATT Article II:1(b), second sentence).
9. Article II:1(b), first sentence, prohibits a Member from imposing ordinary customs duties at
a rate that exceeds the bound rate inscribed in the US Schedule for the relevant products.
The Appellate Body in Colombia – Textiles has held the view that Article II:1(b) provides
that the products described in a Member's Schedule may not, "on their importation ", be
subject to ordinary customs duties, or other duties or charges, that exceed that Member's
bound tariff rates.7 Similarly, the panel in Dominican Republic – Safeguards noted that "[t]he
expression 'ordinary customs duties' in Article II:1(b) of the G ATT 1994 refers to duties
collected at the border which constitute 'customs duties' in the strict sense of the term
(stricto sensu) and that this expression does not cover possible extraordinary or exceptional
duties collected in customs."8
10. Egypt agre es with the view that the aluminium and steel tariffs are, by design and
architecture, "ordinary customs duties" under the first sentence of Article II:1(b). These
tariffs have the following features:
• The triggering event for the imposition of the tariffs is the importation into the
United States of steel or aluminium goods, with duty liability due to the importation in
such increased quantities;
• The tariffs are imposed at an ad valorem rate of 25 percent (steel) and 10 percent
(aluminium), with the customs value of the products serving as the tax base;
• The tariffs are imposed as part of a single, cumulative fiscal charge together with other
ordinary customs duties imposed by the United States on the relevant products; and
• The tariffs are char acterized as "ordinary customs duties" in the "Harmonized Tariff
Schedule of the United States".
11. Accordingly, the Section 232 tariffs constitute "ordinary customs duties" pursuant to Article
II:1(b), first sentence. These tariffs are imposed in excess of the rates set forth in the US

5 China’s first written submission, para. 177(i).
6 United States' first written submission.
7 Appellate Body Report, Colombia – Textiles, para. 5.35.
8 Panel Report, Dominican Republic – Safeguards, para. 7.85.

Schedule and, therefore, violate Article II:1(b), first sentence, of the GATT 1994. Moreover,
consistent with established WTO jurisprudence, a violation of Article II:1(b) entails, without
more, a violation of Article II:1( a)9 because the tariff treatment imposed on the relevant
aluminium and steel products is less favourable than that set forth in the US Schedule.
12. Finally, even if the tariffs do not constitute "ordinary customs duties" under the first sentence
of Article II:1(b), they constitute "other duties and charges" that are prohibited under Article
II:1(b) (second sentence). This provision sets forth a residual category that captures any
"other" non-ordinary customs duties imposed by reason of importation.
13. In closing, Egypt notes that Article XXVIII of the GATT 1994 prescribes that, when Members
wish to raise their bound rates or withdraw tariff concessions, they must negotiate and reach
agreements with other Members with whom they had initially negotiated and enter into
consultations with major supplying countries that have a substantial interest in any change
in the bound rate. Therefore, Members must go through the procedures laid out in
Article XXVIII GATT 1944 and obtain approval for an increase in their b ound rates before
they are able to raise their tariffs to levels in excess of the current bound rate. Raising tariffs
beyond the bound rate without resorting to these procedures constitutes a violation of
Article II of the GATT 1994.
14. Accordingly, the US Section 232 measure imposes a tariff higher than that prescribed in the
US Schedule of concessions, and is thus inconsistent with Articles II:1(a) and (b) of the
GATT 1994.

9 See, for instance, Appellate Body Report, Argentina – Textiles and Apparel, para. 47.

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

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

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

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

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

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

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

IV. ARTICLE XXI(B) OF THE GATT 1994
7. The United States has invoked Article XXI(b) of the GATT 1994 in respect of all of t he
complainants' claims. Therefore, for the reasons detailed in Hong Kong, China's answers to questions
from the Panel to the third parties, the Panel has jurisdiction to examine and interpret Article XXI(b).5
In particular, pursuant to Articles 7.2 and 11 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes ("DSU"), the Panel is required to address Article XXI(b) and
conduct an objective assessment of whether Article XXI(b) applies to the U.S. measures.
8. Furthermore, since Article XXI(b) is an affirmative defence, the Panel should first evaluate
whether each complainant has established a prima facie case that the U.S. measures violate certain
provisions of the Agreement on Safeguards and the GATT 1994 and whether the Un ited States has
rebutted those claims, before turning to the interpretation and application of Article XXI(b) of the
GATT 1994.6
9. In regard to the correct legal interpretation of Article XXI(b), it is Hong Kong, China's view
that when analysed in accord ance with Article 3.2 of the DSU and the general customary rules of
interpretation codified in Article 31 of the Vienna Convention on the Law of Treaties ("Vienna
Convention"), it is clear that this provision preserves the right of Members to take actions necessary
for the protection of their essential security interests, but it is not entirely self-judging.7
10. Pursuant to Article 31 of the Vienna Convention, the terms of Article XXI(b) must be
interpreted in good faith, in accordance with their ordinary meaning in their context, and in the light
of the object and purpose of the GATT 1994. The language "which it considers" makes clear that
Article XXI(b) contemplates a certain level of unilateral determination by the invoking Member. The
placement of the language of "which it considers" in the chapeau indicates that it is up to the invoking
Member to determine, in good faith, whether a measure is necessary for the protection of its
essential security interests.8
11 Pursuant to the principle of effective treaty interpretation, a treaty interpreter may not "'adopt
a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or
inutility'".9 A proper interpretation of Article XXI(b) must therefore give meaning to all of the
enumerated subparagraphs. If the language "which it considers" is interpreted to qualify the
subparagraphs, the subparagraphs would be rendered inutile. In order to give meaning to all parts
of Article XXI(b), the enumerated subparagraphs must be interpreted as subject to objective review
by a WTO panel. Correctly interpreted, Article XXI(b) is therefore not entirely self -judging. This
conclusion is supported by the fact that the chapeau does not include any terms to suggest that the
enumerated subparagraphs do not exhaustively list the types of actions covered by Article XXI(b),
such as "including" or "inter alia".10
12. This conclusion is further supported by the context provided by Article XX of the GATT 1994,
which requires a "two -tiered" analysis, the first tier of which consists of objectively determining
whether the measure at issue falls within the scope of one or more of the enumerated
subparagraphs.11

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ANNEX C-6
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NEW ZEALAND
I. INTRODUCTION

1. New Zealand's participation in this dispute reflects its systemic interest in the proper
interpretation of Article XXI(b) of the General Agreement on Tariffs and Trade 1994 ( GATT).
Article XXI(b) is being called upon by Members in a way that it has not been in the past. In this
changing climate, it is imperative that Article XXI(b) is interpreted in a principled and robust manner
that both preserves its utility and also guards against its abuse.

2. Article XXI(b) performs an important function. It permits Members to take measures that
would otherwise conflict with trade obligations in order to protect certain essential security interests,
and grants Members a degree of latitude to determine where this is necessary. This is not without
limit, however. Article XXI(b) contains elements that are subject to objective review by a panel.
Further, like all treaty provisions, Article XXI(b) must be applied in good faith. Whether this good
faith obligation has been fulfilled is also a matter that is open to panel review. These limiting features
maintain the utility of the national security exception for Members, while still preserving the security
and predictability of the international trading system and protecting Article XXI(b) against misuse.

II. SCOPE OF PANEL REVIEW UNDER ARTICLE XXI(b) GATT

3. Article XXI(b) GATT provides that:

Nothing in this Agreement shall be construed

…

(b) to prevent any contracting party from taking action which it considers necessary
for the protection of its essential security interests:

(i) relating to fissionable materials or the materials from which they are derived;

(ii) relating to the traffic in arms, ammunition and implements of war and to such
traffic in other goods and materials as is carried on directly or indirectly for the
purpose of supplying a military establishment;

(iii) taken in time of war or other emergency in international relations;

4. A key issue in this dispute is the extent to which Article XXI(b) retains Members' discretion to
determine the matters contained in that provision, and the extent to which action taken in reliance
on it can be reviewed by a panel. As a preliminary point, it can be noted that this is not a question
of justiciability. The fact that a provision fully or partially defers to the judgment of a Me mber will
not, in itself, render conduct taken under that provision non-justiciable. As discussed further below,
all treaties must be applied and performed in good faith. 1 Whether this obligation of good faith has
been met is a justiciable matter suscepti ble to panel review. The degree of discretion retained by
Members under Article XXI(b) will, however, impact upon the nature of a panel's assessment of that
conduct. An examination of the scope of this discretion is therefore an appropriate place to start our
interpretation.

Article XXI(b) contains both elements that defer to Members' own judgment and elements
that are capable of objective review by a panel

5. The starting point to the interpretation of Article XXI(b) is the phrase 'which it considers'
contained in the chapeau. It is clear from the words directly preceding the phrase, that the term 'it'

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

is a reference to the relevant contracting party. To 'consider' means "to contemplate mentally, fix
the mind upon; to think over, meditate or reflect on, b estow attentive thought upon, give heed to,
take note of".2 This is an inherently subjective exercise. The use of 'which it considers' in the chapeau
to Article XXI(b) signals that what is being referred to is a subjective assessment to be carried out
in good faith by the relevant contracting party.

6. The phrase 'which it considers' qualifies both the assessment of the 'necessity' of the action
taken and the determination of the invoking Member's 'essential security interests'. This is clear
from the str ucture of the chapeau to Article XXI(b). The terms in the chapeau run one after the
other. There is no grammatical or formatting division suggesting the phrase 'which it considers'
applies only to the term 'necessary' and not to 'for the protection of its essential security interests'.
This is further supported by the use of the term 'its' before 'essential security interests'. The chapeau
is not referring to essential security interests in the abstract, it is referring to the essential security
interests of the particular Member invoking Article XXI(b). It would be artificial to suggest that any
entity other than a Member can determine that Member's essential security interests. It is for a
Member, acting in good faith, to determine its essential security i nterests, and the measures
necessary to protect those interests.

7. As recognised by the Panel in the recent decision Russia – Traffic in Transit, the phrase 'which
it considers' does not qualify the three subparagraphs to Article XXI(b). Unlike the chapeau, the sub-
paragraphs are framed in objective terms. As noted above, the chapeau uses ' it considers' and 'its
essential security interests' to indicate that these are subjective matters left to the judgment of a
Member. In stark contrast, the subparagraph s are framed in purely objective terms: whether the
measures relate to fissionable materials; whether the measures relate to military materials; whether
the measures were taken in a time of war or emergency in international relations. This reflects a
deliberate effort to differentiate between those elements that are to be subjective and left to the
judgment of a Member, and those that are objective requirements, subject to determination by a
panel.

8. This interpretation is supported by the context of Arti cle XXI(b), in particular, Article XXI(a),
which provides that contracting parties shall not be required to furnish information the disclosure of
which it considers contrary to its essential security interests. An objective assessment of a Member's
asserted security interests and the necessity of action taken for their protection could require a panel
to be provided with information contrary to Article XXI(a).

9. This interpretation is also supported by the object and purpose of the GATT. The general object
and purpose of the GATT, as well as the Marrakesh Agreement Establishing the World Trade
Organization, is to 'promote the security and predictability of the reciprocal and mutually
advantageous arrangements and the substantial reduction of tariffs and other barriers to trade'.3 A
number of provisions, including Article XXI(b), permit Members to take measure that would
otherwise conflict with trade obligations in order to protect other interests. While these provisions
grant Members a degree of flexibility, they contain in -built limits to preserve the security and
predictability of the trading system and protect against abuse. The three subparagraphs to
Article XXI(b) perform this important limiting function by delineating the factual c ircumstances in
which Article XXI(b) can be invoked. As noted by the Panel in Russia – Traffic in Transit, it would be
"entirely contrary" to the security and predictability of the multilateral trading system established
by the above agreements to interpret Article XXI(b) as "an outright potestative condition, subjecting
the existence of a Member's GATT and WTO obligations to a mere expression of the unilateral will of
that Member".4

10. Accordingly, whether the factual circumstances set out in one of the sub-paragraphs to
Article XXI(b) exist is a matter subject to objective panel review. In carrying out this review, a panel
should take into account the particular factual circumstances relevant to the invoking Member. It
would be unhelpful to attempt to prescribe the scope of each of the factual circumstances contained
in the sub-paragraphs. Whether a particular set of facts falls within the sub-paragraphs is a matter
to be assessed on a case by case basis. An overly formulistic approach to the interpretat ion of the
circumstances described in the sub -paragraphs could unduly limit the scope of Article XXI(b) and,

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

in doing so, undermine its utility. The terms of Article XXI(b) are not static. They must be read by a
treaty interpreter in the light of contempor ary concerns of the community of nations. 5 The degree
to which the existence of these factual circumstances must be substantiated by the Member relying
on Article XXI(b) will also depend on the circumstances.

Members are obliged to perform their obligations under Article XXI(b) GATT in good faith

11. It is a principle of general international law that all treaty provisions must be interpreted and
performed in good faith. 6 This obligation of good faith arises irrespective of whether a provision
defers to the judgment of Members or is subject to objective review by a panel.

12. The obligation to perform a treaty in good faith requires Members to not use the exceptions
in Article XXI(b) as a means to circumvent its obligations under GATT.7 In carrying out an assessment
of conduct taken in reliance on Article XXI(b), a panel may consider whether this obligation of good
faith has been met. There is no test, in the abstract, for how a panel should assess whether this
obligation of good faith has been met. 'Good faith' is not a threshold, or a standard of proof, it is an
assessment of the integrity of a Member's performance of a particular treaty provision. This
assessment will differ depending the facts and circumstances of the particular case. In the context
of Article XXI(b), it will likely involve consideration of the connections between the measure in
dispute, the essential security interests engaged and the factual circumstances in the relevant sub-
paragraph. The question for the panel is whether, in all r elevant circumstances, the Member's
reliance on Article XXI(b) is a good faith performance of that provision.

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

ANNEX C-7
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY
I. THE "JUSTICIABILITY" OF ARTICLE XXI(b) OF THE GATT 1994
1. The United States accepts that the Panel has jurisdiction over this dispute, in the sense that
the DSB has established the Panel to examine the matter set out in the panel request. 1 However,
the United States asserts that the Panel cannot undertake any meaningful review of the US actions
that are purportedly justified under Article XXI(b),2 because, based on its terms, "whether and what
circumstance action is necessary to protect its essential interests" is entirely "self-judging", by virtue
of the phrase "which it considers".3

2. In sum, the United States argues that Article XXI(b) establishes a right – to take GATT -
inconsistent security measures – with no scope whatsoever for a panel to review the obligations and
conditions that qualify that right. Th us, the dispute is subject to the Panel 's jurisdiction, but the
Panel may not undertake an objective review, by virtue of the phrase "which it considers".

3. Norway strongly disagrees with this argument by the United States. If mere invocation of
Article XXI(b) would render a claim "non -justiciable", this would allow easy circumvention of WTO
obligations. If a respondent could effectively bar a panel, that the United States acknowledges enjoys
jurisdiction, from undertaking objective review by mere invocation of a security exception, this would
give "carte blanche" for WTO Members to unilaterally set aside the rules that the legitimacy of the
rule-based system rests on. A respondent could invoke a variety of protectionist interests under the
guise of national security, and thereby avoid scrutiny of its WTO-inconsistent measures altogether.
Such a measure could violate any of the Member 's WTO obligations, and a WTO panel would be
barred from making any findings of inconsistency. An interpretation of Article XXI(b), which had this
effect, would render all the obligations in the GATT 1994 effectively unenforceable.

4. Moreover, if the intentions of the negotiators were for the panel to have no authority to assess
a Member's invocation of a security exception p rovision, one would also have expected such an
important and significant matter be expressly provided for.4

II. ORDER OF ANALYSIS UNDER ARTICLE XXI(b) OF THE GATT 1994
5. Article XXI(b) operates to justify certain GATT -inconsistent action, using the sam e language
as Article XX: "nothing in this Agreement shall be construed to prevent any Member from taking any
action which…". Hence, Article XXI(b) is, just like Article XX, an affirmative defence to a violation of
the GATT 1994. Under Article XX, panels and the Appellate Body have, without exception, addressed
first whether the complainant has made out its claims of WTO -inconsistency; and second whether
the respondent has made out its affirmative defence that the measures are justified. This is because
an affirmative defence is only relevant where a panel has found a violation. If there is no violation,
then the relevant exceptions provision has no operative role; there is nothing to justify in the first
place. Logically, therefore, where a respondent invokes Article XXI(b), the panel should first confirm
whether there is a violation; and second whether the violation is justified.

6. Moreover, it is well-accepted, from jurisprudence under Article XX of the GATT 1994, that it is
the WTO-inconsistent aspect o f the measure – and not the measure as a whole – which must be
justified.5 Of course, a panel cannot identify the WTO-inconsistent aspects of a measure that would
require justification, until it has addressed the claims. Hence, in our view, it is clear th at the same
reasoning must apply with respect to the other exceptions provisions applicable under the GATT
1994. By contrast, if a panel were obliged to address Article XXI(b) before addressing the claims, it

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

would also have to assess whether the measures are justified in a vacuum, without yet having
determined which aspects of the measures are WTO-inconsistent.

III. BURDEN OF PROOF UNDER ARTICLE XXI (b) OF THE GATT 1994

7. Article XXI(b) of the GATT 1994 is an affirmative defence, just like Article XX. The Appellate
Body has found that the burden for establishing limited exceptions in the GATT 1994 lies with the
party asserting the defence. 6 Hence, a respondent invoking an affirmative defence must bear the
burden of proving that the applicable conditions are met. If the respondent does not take on that
burden, beyond invoking an exception, a panel should not proceed to consider the merits of the
exception.

8. Consequently, if the complainant establishes that a measure imposed by the respondent is
inconsistent with the provisions of the GATT 1994, and the respondent does not make a prima facie
case that those measures are justified under Article XXI, the panel must, as a matter of law, rule in
favour of the complainant. In our view, the panel in Russia – Traffic in Transit failed, in effect, to
treat Article XXI(b) of the GATT 1994 as an affirmative defence. The respondent in that dispute
argued only that the security exception is not "justiciable", and did not adduce evidence and
argument on the merits. In those circumstances, the panel should have found that the respondent
did not make its case, and found in favour of the complainant.

IV. STANDARD OF REVIEW UNDER ARTICLE XXI (b) OF THE GATT 1994

9. The United States agrees that the Panel has jurisdiction over this matter.7 However, the United
States takes the radical position that, because it has invoked Article XXI(b) of the GATT 1994, the
Panel cannot make any substantive findings. In other words, while the Panel has jurisdiction, its
review is empty of any substantive content.

10. In any given dispute, the standard of review under Article 11 "must be understood in light of
the specific obligations of the relevant agreements that are at issue in the case". 8 To give effect to
the chosen terms of Article XXI(b), and to the obligation to make an "objective assessment", the
Panel must reject the US position that the appropriate stan dard of review under Article XXI(b) is
total deference to the respondent.

V. INTERPRETATION OF ARTICLE XXI(b) OF THE GATT 1994

11. The US position that Article XXI(b) is self-judging rests on two incorrect interpretive premises:
first, the phrase "which it considers" applies to the subparagraphs of Article XXI(b); and second the
phrase renders any other terms to which it attaches "self-judging". In Norway´s view, however, the
subparagraphs of Article XXI (b) are not qualified by "which it considers" and the chapeau is not
"self-judging" by virtue of the terms "which it considers".

A. The subparagraphs of Article XXI(b)

12. The US first interpretive error is to misunderstand the relationship between the chapeau and
the subparagraphs. The United States a rgues that subparagraphs (i) and (ii) qualify the term
"essential security interests" in the chapeau, and not the word "action". 9 On this basis, the United
States (incorrectly) argues that each subparagraph must be understood as simply endings to a
sentence that begins with "which it considers". The United States thereby injects the verb "consider"
from the chapeau into the subparagraphs. As a result, for the United States, the fulfilment of the
legal conditions in the subparagraphs depends entirely on a respondent's subjective "consideration".
The United States is wrong.

13. Properly interpreted, each of the three subparagraphs qualifies the word "action", and not the
words "essential security interests". This follows from the text, context, object and pu rpose, and
negotiating history of Article XXI(b). In particular, the US view is irreconcilable with the Spanish

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

version of the text, in which the term " relativas" (relating) can only qualify the word " medidas"
("action"); and, the chapeau / subparagraphs are broken by a comma.

14. The chapeau / subparagraph relationship has important implications for the Panel's approach
under Article XXI(b). Specifically, as a consequence of the relationship, a Member 's "action" under
Article XXI(b) is subject to two sets of distinct and independent conditions:

(1) the "action" must "relate to" the specific circumstances set forth in subparagraph (i)
or (ii), or be "taken in time of war or other emergency in international relations",
under subparagraph (iii); and,

(2) it must be "action" that the Member "considers necessary" for the protection of its
essential security interests.

15. As a first step, therefore, a panel must make an objective assessment of whether the Member
has demonstrated that the "action" meets the circumstances / situation in at least one of the
subparagraphs. Textually, the phrase "which it considers" is not part of this step. Therefore, a
Member's demonstration that it fulfils the condi tions in the subparagraphs is not subject to a more
forgiving standard of review flowing from the verb "consider" in the chapeau.

16. The United States has not identified a subparagraph of Article XXI(b), let alone substantiated
that its actions meet the terms of any of the subparagraphs. The United States therefore fails to
make a prima facie case, and the Panel's analysis may stop at the first step.

B. The chapeau of Article XXI(b)

17. The US second interpretive error relates to the second step of the Panel's analysis: is the
measure "action" which the Member "considers necessary" for the protection of its essential security
interests? The United States is wrong that the legal effect of the terms "which it considers" is that,
in assessing this question, a panel must afford total deference to the respondent.

18. Norway agrees that the phrase "which it considers" means a panel should afford the
respondent a degree of deference. However, a standard of "total deference", with no scrutiny
whatsoever of a Member's action, fails to give effect to the chosen treaty terms, and the requirement
of "objectivity" under Article 11 of the DSU.

19. The verb "consider" has a specific meaning: to "look attentively"; and, in transitive form, "to
contemplate mentally, fix the mind upon". 10 Thus, the verb "considers" in the chapeau of
Article XXI(b) establishes an obligation for a Member to undertake an attentive examination that the
legal conditions in the chapeau are met.

20. Indeed, the surrounding words "necessary", "for the protection of", and "essential" each have
their own specific meaning, and establish legal conditions that constrain the types of action that a
respondent may take. The treaty interpreter cannot interpret two words in the chapeau in a way
that deprives the surrounding context of meaning.

21. By way of contrast, the drafters could have chosen a different verb than "considers", and
different surrounding words. For example, Article XXI(b) could have permitted a Member to take
any action which it "declar es necessary for the protection of its essential security interests"; or,
which it "considers, in its judgment, fruitful to its security interests". The more open-ended language
in each example would connote a far greater degree of discretion than the lang uage the drafters
actually chose.

22. The US interpretation of the chapeau as "self -judging" therefore reduces the chapeau's
disciplines to inutility, and overrides Article 11 of the DSU. If the Panel accepts that Article XXI(b) is
"self-judging", a Member could justify any action under the chapeau, however spurious its national
security justification, thereby circumventing its GATT 1994 obligations, and defeating the object and
purpose of the GATT 1994.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ANNEX C-10
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SWITZERLAND
I. INTRODUCTION
Switzerland intervenes because of its systemic interest in the correct and consistent
interpretation and application of the provisions of the covered agreements at issue in this dispute
and its substantial trade interest. Swi tzerland also has a particularly strong interest in the present
dispute because it relates to the same matter as the matter raised by Switzerland in DS556 and by
five other WTO Members in their own disputes against the United States.
II. THE PANEL HAS JUR ISDICTION TO REVIEW THE INVOCATION OF ARTICLE XXI(B)
OF THE GATT 1994
The United States claims that Article XXI(b) which it invokes is "self -judging" and therefore
the Panel may not make findings on China's claims. Thereby, although the United States as serts
that it does not dispute the Panel's jurisdiction, in essence it argues that there is nothing for the
Panel to decide other than to note that the United States has invoked Article XXI(b) of the
GATT 1994.
Switzerland notes that there are various p rinciples and obligations included in the WTO
covered agreements, in particular in the DSU, which confirm that the Panel has jurisdiction to review
the invocation by the United States of Article XXI(b).
First, Article 1.1 of the DSU provides that the r ules and procedures of the DSU apply to
disputes brought pursuant to the consultation and dispute settlement provisions of, inter alia, the
GATT 1994, without excluding Article XXI(b). Furthermore, neither Article XXI(b), nor any other
provisions of the GATT 1994 contain any particular rules on dispute settlement that would exclude
measures from the review by WTO adjudicating bodies because a WTO Member taking those
measures invokes Article XXI(b) of the GATT 1994.
Second, pursuant to its terms of reference, this Panel must examine the matter referred to by
China in its request for the establishment of a Panel "in the light of the relevant provisions of the
covered agreements cited by the parties to this dispute." Article 7.2 of the DSU further emphasises
that obligation in providing that "[p]anels shall address the relevant provisions in any covered
agreement or agreements cited by the parties to the dispute".
Third, that the Panel has jurisdiction to review Article XXI(b) of the GATT 1994 is further
supported by the obligation for the Panel to make an objective assessment of the matter pursuant
to Article 11 of the DSU, including "an objective assessment of the facts of the case and the
applicability of and conformity with the relevant covered agreements". It is difficult to see how the
Panel could fulfil its mandate pursuant to Article 11 of the DSU if it were to decline to exercise the
validly established jurisdiction and make no finding on China's claims.
Fourth, concluding that the Panel cannot make findings on China's claims would "diminish"
the rights of China to seek redress within the meaning of Article 23 of the DSU and to bring a dispute
pursuant to Article 3.3 of the DSU. It would also be inconsistent with Article 23.2(a) of the DSU as
it would mean that, by merely invoking Article XXI(b), WTO Members would be able to unilaterally
decide the outcome of a dispute, in place of WTO adjudicating bodies.
Fifth, concluding that the Panel may not review the invocation of Article XXI(b) would also
undermine one of the fundamental objectives expressed in Article 3.2 of the DSU that the dispute
settlement system is a "central element in providing security a nd predictability to the multilateral
trading system" and "serves to preserve the rights and obligations of Members under the covered
agreements".

Sixth, accepting that a panel cannot review the complainant's claims because a WTO Member
invokes Article XXI(b) of the GATT 1994 would disregard the "affirmative defence" nature of that
provision which implies that it is for the Member invoking Article XXI(b), in the present case the
United States, to establish that the measures at issue comply with the requi rements laid down in
Article XXI(b) of the GATT 1994.
III. THERE IS NO OBSTACLE TO THE PANEL'S EXERCISE OF JURISDICTION DUE TO THE
POLITICAL NATURE OF ESSENTIAL SECURITY INTERESTS
The United States' argument that the invocation of Article XXI(b) precludes a panel from
exercising its jurisdiction with respect to the entire dispute because of the political nature of the
essential security interests finds no basis in the DSU. Instead, several provisions of the DSU confirm
that a panel is required to address and rule on the claims raised by the complainant which fall within
its terms of reference. To find otherwise would be contrary to Articles 3.2, 3.3, 7, 11, 19 and 23 of
the DSU. It w ould be also inconsistent with the aim of the WTO dispute settlement mechanism,
which pursuant to Article 3.7 of the DSU is to "secure a positive solution to a dispute" and would
undermine the security and predictability of the multilateral trading system as a whole. Switzerland
further notes that other international courts and tribunals have previously explicitly rejected an
argument that a "political question" constitutes an obstacle to the exercise of jurisdiction.
IV. THE INVOCATION OF ARTICLE XXI(B) OF THE GATT 1994 IS JUSTICIABLE
The United States claims that the invocation of Article XXI is "non -justiciable" because
Article XXI(b) is "self-judging". According to the United States, the allegedly "self -judging" nature
derives from the text and conte xt of Article XXI(b). That interpretation is wrong and must be
rejected.
A. The ordinary meaning of Article XXI(b) of the GATT 1994 taken in its context
The United States argues that the text of Article XXI(b) of the GATT 1994 and, in particular,
the words "which it considers" establishes the self-judging nature of that provision.
While the words "which it considers" imply that a certain degree of discretion be granted to a
Member pursuant to Article XXI(b), that discretion relates only to the "necessity" of such action. This
follows in particular from the function of the verb "consider" which is to link the adjective "necessary"
to the noun "measures". Thus, the wording and the grammatical structure of that provision do not
support the proposition that the words "which it considers" qualify the determination of the "essential
security interests" or the elements listed in the subparagraphs of Article XXI(b).
The United States' interpretation of Article XXI(b) disregards that the chapeau refers to action
which the Member concerned considers necessary "for the protection of its essential security
interests". Thus, pursuant to the chapeau, not any interests may justify an action being taken under
Article XXI(b). Only "essential security interests" do. Furthermore, the action undertaken by a WTO
Member must be necessary "for the protection" of that Member's essential security interests. This
suggests that, when a Member invokes Article XXI(b), a panel needs to review whether there is a
rational relationship between the action taken and the protection of the Member's essential security
interests.
In addition, the interpretation needs to fully take into account the subparagraphs of
Article XXI(b). Subparagraphs (i) to (iii) set out specific requirements that must be objectively met
by a measure to be justified under Article XXI(b). It is clear from the wording and the grammatical
structure of Article XXI(b) that the three subparagraphs all relate to the word 'action' in the chapeau
and are not part of the relative clause "which it considers necessary for the protection of its essential
security interests". It demonstrates that the phrase "which it considers" does not qualify the three
subparagraphs. This understanding is fully supported by the Spanish and French versions of
Article XXI(b).
Furthermore, the interpretation put forward by the United States must be rejected as it would
render subparagraphs (i) to (iii) inutile. Indeed, should a WTO Member enjoy absolute discretion

with respect to actio ns that it may take for protecting its essential security interests, there would
have been no need to include in the text of Article XXI(b) of the GATT 1994 the conditions laid down
in subparagraphs (i) to (iii).
Switzerland submits that the immediate context provided by the other paragraphs of
Article XXI as well as the broader context provided by Article XX of the GATT 1994 and the provisions
of other WTO agreements, including in particular Articles 7.1, 7.2, 11 and 23 of the DSU, support
the interpretation that Article XXI(b) is reviewable by a panel.
B. The object and purpose of the GATT 1994
The object and purpose of the GATT 1994 further supports the understanding that
Article XXI(b) is subject to review by WTO panels and the Appellate Body. Indeed, the possibility to
completely shield a trade -restrictive measure from any scrutiny by merely raising Article XXI(b)
would go against the security and predictability of the multilateral trading system established by the
GATT 1994 and the WTO Agreement contrary to the object and purpose of the GATT 1994 as
expressed in the third recital of its preamble.
C. The negotiating history confirms that a panel may interpret and review the
application of Article XXI(b) of the GATT 1994
The United States clai ms that the negotiating history of Article XXI(b) of the GATT confirms
that the Panel may not interpret Article XXI of the GATT 1994 and review its application. The
United States' arguments appear to be based on a selective reading of some of the documents of
the negotiating history, taken out of their context.
In Switzerland's view, the discussions of the ITO negotiating committee to which the
United States refers confirm that the drafters did not envisage Article XXI(b) as a self -judging
provision.
The negotiating history also offers no support to the United States' argument that a
non-violation complaint is the only remedy available in case the Member taking the measure invokes
Article XXI(b).
V. THE PANEL'S SUBSTANTIVE ANALYSIS
Once the Panel confirms its jurisdiction and that there is no obstacle to the exercise of its
jurisdiction, the Panel should examine the dispute on its merits. Switzerland considers that
Article XXI, being an affirmative defence, requires the Panel to first start its review by addressing
the claims raised by China.
The Panel should then, before entering into an analysis of the United States' defence, examine
the relationship between Article XXI of the GATT 1994 and the claims raised under the Agreement
on Safeguards and the GATT 1994. It is only to the extent that the Panel concludes that
Article XXI(b) is available as a defence with respect to the cl aims at issue that the Panel should
examine that defence.
A. The applicability of the Agreement on Safeguards to the measures at issue
Switzerland agrees with China that the measures at issue fall within the scope of the
Agreement on Safeguards and are inconsistent with several provisions of that Agreement.
1. Whether the measures at issue constitute safeguard measures falling within the scope of the
Agreement on Safeguards has to be determined by the Panel as part of its objective assessment of
the matter
The legal characterization of a measure for the purposes of determining the applicability of an
agreement is not an issue to be decided unilaterally by the Member taking the measure. It is an
issue that must be determined objectively. Article 11 of the DSU requires a panel to undertake an
"objective assessment of the matter before it, including an objective assessment of the facts of the
case and the applicability of and conformity with the relevant covered agreements". It follows that,

as part of its objective assessment, a panel must examine whether the provisions of the covered
agreements invoked by the complainant as the basis for its claims are "applicable" to the challenged
measures.1
The Panel's duty to conduct an "objective assessment of the matter" implies that the Panel is
not bound by the way the Member concerned characterizes the measure in its municipal law. Rather,
"a panel must assess the legal characterisation for purposes of the applicability of the relevant
agreement on the basis of the 'content and substance' of the measure itself". 2 More specifically, a
panel is called upon "to assess the design, structure, and expected operation of the measure as a
whole".3 For that purpose, "a panel must identify all the aspects of the m easure that may have a
bearing on its legal characterization, recognize which of those aspects are the most central to that
measure, and, thereby, properly determine the disciplines to which the measure is subject".4
2. The measures at issue constitute s afeguard measures falling within the scope of the
Agreement on Safeguards
In order to constitute a safeguard measure, a measure must present two constituent features.
First, the measure must suspend, in whole or in part, a GATT obligation or withdraw or modify a
GATT concession. Second, the suspension, withdrawal, or modification in question must be designed
to prevent or remedy serious injury to the Member's domestic industry caused or threatened by
increased imports of the subject product.5
The measures at issue are the import adjustments imposed by the United States on imports
of certain steel and aluminium products which, among others, consist of additional import duties
exceeding the bound rate provided for in the United States' Schedule of C oncessions. As
demonstrated by the Steel and Aluminium Reports of the USDOC, the Presidential Proclamations
imposing the measures as well as countless statements of the US officials, those measures have
been imposed in order to revive the US steel and alum inium industries and protect them from the
harm caused by increasing imports. It follows that the measures at issue suspend at least one GATT
obligation or withdraw or modify one GATT concession and are clearly designed to prevent or remedy
serious injury to the US domestic steel and aluminium industries. Thus, those measures present
both constituent features of a safeguard measure and fall within the scope of the Agreement on
Safeguards. The fact that the United States has not adopted those measures pursuant to its domestic
safeguard legislation or has not notified them to the WTO as safeguard measures does not change
that conclusion.
This is further confirmed by certain additional features of those measures such as their
extraordinary character, their complementary relationship with trade remedy measures, their focus
on the "import" of the products concerned and the fact that they have been adopted pursuant to a
procedure which is very similar to the procedure followed in US safeguard investigations.
B. The relationship between Article XXI(b) of the GATT 1994 and the Agreement
on Safeguards
The United States argues that Article XXI of the GATT 1994 is a defense to alleged breaches
of the Agreement on Safeguards. Unlike other covered agreements, the Agreement on Safeguards
does not, however, include any direct or indirect reference to Article XXI of the GATT 1994. There
is, therefore, no basis for arguing that a defence under Article XXI(b) of the GATT 1994 should be
available for violations of the Agreement on Safeguards.
Furthermore, contrary to what the United States argues, none of the general references to
the GATT included in the Agreement on Safeguards suggests that Article XXI(b) should be available
as a defence for measures inconsistent with the Agreement on Safeguards.

1 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.31.
2 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.32.
3 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60.
4 Appellate Body Report, Indonesia – Iron or Steel Products, para. 6.6.
5 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60.

Article XXI can be invoked as a defence with respect to obligations assumed by WTO Members
under the GATT 1994. It cannot, however, be invoked as a defence with respect to another GATT
provision, such as Article XIX, which establishes a right to impose safeguard measures which
derogate from the obligations under the GATT 1994, provided that certain con ditions and
circumstances listed in that provision and in the Agreement on Safeguards are satisfied. Given the
relationship between Article XIX of the GATT 1994 and the Agreement on Safeguards, it logically
follows that if Article XXI is not available as a defence for measures that fall within the scope of
Article XIX (and are inconsistent with that provision), it is neither available as a defence for measures
that are inconsistent with the Agreement on Safeguards.
Finally, an interpretation allowing WTO Members to justify impermissible safeguard measures
under Article XXI would, in fact, render Article 11.1(a) of the Agreement on Safeguards inutile.
C. General remarks on the United States' defence under Article XXI(b) of the
GATT 1994
Switzerland notes that, although the United States invokes Article XXI(b) of the GATT 1994,
it does not address any of the substantive requirements imposed by that provision. The United States
does not even identify under which subparagraph of Article XXI(b) it submits its defence.
Since Article XXI(b) constitutes an affirmative defence, the burden of proof rests on the
respondent, the United States, to show that the conditions set out in Article XXI(b) are met.
Switzerland notes that so far, the United States has failed to meet its burden.

ANNEX C-11
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TÜRKIYE
1 INTRODUCTION
1.1. This integrated executive summary contains the arguments presented by the Republic of
Turkey (Turkey) in its third-party written submissions, oral statements, and responses to the Panel's
questions in the following disputes parallel to United States – Additional Duties on Steel and
Aluminium (DS564): DS544, 547, 548, 552, 554, and 556.
1.2. Turkey agrees with the complainants in the parallel disputes that the Section 232 measur es
imposed by the United States on steel and aluminium articles are safeguard measures within the
meaning of Article XIX of the GATT 1994 and the Agreement on Safeguards. Moreover, Turkey
believes that the Panels in these disputes should examine the complainants' claims under Article XIX
and the Agreement on Safeguards before addressing the United States' defence under Article XXI.
As Turkey has consistently argued in these disputes as well as in DS564, matters falling under
Article XIX are outside the scope of Article XXI. Put simply, Article XXI does not apply to safeguard
measures and cannot justify violations of WTO safeguards disciplines. The respective scopes of
application of Articles XIX, XX and XXI are mutually exclusive.
1.3. With respect to Article XXI, it is impossible to overstate the systemic importance of this dispute.
The United States' position is that a WTO Member can take any trade -related action that it wishes,
for any protectionist purpose that it wishes, label it as a "national security" measure, invoke allegedly
unlimited discretion, and by doing so escape any and all disciplines of WTO law. This position, if
sustained by the Panel, would create a large loophole within the WTO legal system that would enable
all WTO Members to escape their WTO obligations at will. This would render the rights of other WTO
Members an empty shell, place them entirely at the discretion of an importing Member, and would
reduce the entire multilateral trading system to a nullity.
1.4. It is, therefore, vita l that this Panel approaches Article XXI in a manner that preserves the
balance of rights and obligations of the WTO Members under the covered agreements. Turkey fully
supports the need to protect the right of WTO Members to take genuine national security measures,
for which they should enjoy an appropriate margin of deference. But, at the same time, there must
continue to be meaningful WTO disciplines on domestic trade measures. There is no such balance in
the United States' position.
1.5. The United States' entire defence in this dispute is based on the national security exception in
Article XXI(b) of the GATT 1994. The United States' principal argument is that, as soon as the
defendant invokes this provision, a WTO panel must lay down its tools, no matte r how WTO -
inconsistent the challenged measure is or how unreasonable the invocation of Article XXI might be.
According to the United States, in these circumstances, a dispute becomes "inherently political in
nature", and, therefore, inappropriate for any review in the WTO.
1.6. Turkey notes that, beyond the fact that its approach to Article XXI is manifestly unreasonable
on substance, the United States' approach to Article XXI is somewhat contradictory in procedural
terms. On the one hand, the United States does not dispute that panels have jurisdiction over such
disputes within the meaning of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU), and may receive submissions from the parties and third parties. On
the other ha nd, the United States calls the invocation of Article XXI "non -justiciable" or "self -
judging". The United States argues that each WTO Member has the right to determine, for itself,
what it considers necessary for protecting its essential security interests.
1.7. To Turkey, these two positions taken together constitute an elaborate empty formality. The
Panel has jurisdiction, but cannot effectively exercise any meaningful review. This makes no sense
to Turkey and clearly runs counter to the objective of the WTO dispute settlement system to act as
a central element in providing security and predictability to the multilateral trading system.

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

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

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

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

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

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

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

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

ANNEX C-12
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE*
1. INTRODUCTION
1. Mr. Chairperson, distinguished Members of the Panel, Ukraine welcomes the opportunity to
express its views to the Panel as a Third Party in the current proceedings.
2. Ukraine has a systemic interest in a proper and consistent interpretation of the provisions of
the World Trade Organization ("WTO") covered agreements, therefore in its oral statement Ukraine
is not commenting on the merits of the claims and the defences raised by the parties to this dispute,
but rather focuses on some key issues relating to the order of analyses and application of Article XXI
of the General Agreement on Tariffs and Trade 1994 ("GATT 1994").
2. JURISDICTIONAL ISSUES OF ARTICLE XXI OF THE GATT 1994
3. The United States in its first written submissions or oral statements does not address any of
the claims raised by the complainants. The United States focuses only on Article XXI(b) of the
GATT 1994 stating that it is self-judging and its invocation is non-justiciable.
4. The United States submits that the adjustment measures on imports of steel and aluminium
constitute national security action justified under Article XXI of the GATT 1994. In the United States'
view, the measures at issue cannot be reviewed by this Panel which should limit its findings to noting
that the United States has invoked Article XXI(b) of the GATT 1994, given that Article XXI(b) is self-
judging.
5. Ukraine believes that the useful guidance for the Panel can be found in the Understanding on
rules and procedures governing the settlement of disputes ("DSU"). Article 7.2 of the DSU states
that "panels shall address the relevant provisions in any covered agreement or agreements cited by
the parties to the dispute" in order to make "an objective assessment" of the case under Article 11
of the DSU.
6. Ukraine is of the opinion that jurisdictional question under Article XXI of the GATT 1994 should
not be a matter of a panel's analysis in any further disputes . Without repetition of the findings in
Russia – Traffic in Transit , Ukraine believes that a panel may interpret Article XXI(b) of the
GATT 1994 and review the reliance on this provision. It means that Article XXI(b) of the GATT 1994
is justiciable in the same manner as any other provision of the WTO covered agreements.
7. Ukraine would like to emphasise that the Panel in Russia – Traffic in Transit made a very
important and welcome contribution by rejecting arguments that the panel has no jurisdiction to
review invocation of Article XXI of the GATT 1994 and therefore by confirming that Article XXI(b)(iii)
is within the Panel's terms of reference for the purposes of the DSU. 1
8. There is therefore no need for a Panel to examine the issue of justiciability of Article XXI(b)(iii)
of the GATT 1994 not only in this particular case, but in general. In Ukraine's view, this conclusion
is constant.
3. STANDARD OF REVIEW
9. Ukraine would like to present its views on the proper order of analysis in reviewing the
United States' reliance on "security exceptions" provision.
10. Taking into account the special nature of "security exceptions" provision, Ukraine wishes to
emphasize that the fact that the text of Article XXI(b) expressly states that it is for a Member to

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

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