INDIA – CERTAIN MEASURES ON IMPORTS OF IRON AND STEEL PRODUCTS
Document: NOTIFICATION OF AN APPEAL BY INDIA UNDER ARTICLES 16.4 AND 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND RULE 20 OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 18 December 2018
Document codes: WT/DS518/8
Complainant: Japan
Respondent: India
Third parties: Australia, China, EU, Indonesia, Kazakhstan, South Korea, Oman, Qatar, Russia, Singapore, Taiwan, Ukraine, U.S., Vietnam
Dispute stage: Panel
Agreements cited: Art. 3.1, 4.2(c), 11.1(a)  SafeguardsArt. XIX:1  GATT 1994Art. 2.1, 4.2(a), 4.1(a), 4.1(b), 4.1(c), 4.2(b), 5.1, 7.1, 12.4, 12.1, 12.2, 12.3  SafeguardsArt. II:1(b), I:1  GATT 1994

INDIA – CERTAIN MEASURES ON IMPORTS OF IRON AND STEEL PRODUCTS

NOTIFICATION OF AN APPEAL BY INDIA UNDER ARTICLES 16.4 AND 17 OF THE UNDERSTANDING
ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND RULE 20 OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
The following communication, dated 14 December 2018, from the delegation of India, is being
circulated to Members.

Dispute Settlement Body its decision to appeal to the Appellate Body certain issues of law and legal
interpretations covered in the report of the Panel in (). Pursuant to Rul e 23(1) of the W orking Procedures for
Appellate Review, India is simultaneously filing this Notice of Appeal with the Appellate Body
Secretariat.
2. For the reasons to be further elaborated in its submissions to the Appellate Body,
India appeals, and requests the Appellate Body to reverse or declare of no legal effect the findings
and conclusions of the Panel with respect to the errors of law and legal interpretations contained in
the Panel Report described below:
a. The Panel erred in stating that there are "Lingering Effects" of the Measure at issue
3. India appeals the finding of the Panel that the impugned safeguard measures applied by India
on Imports of Iron and Steel Products continue to have "lingering effects" despite its expiry. In this
regard, India sub mits that the Panel erred on the grounds that: (a) The Panel did not provide
sufficient justification for its findings and recommendations; (b) The Panel has mischaracterized the
precedents it relied on to make such a ruling; (c) The Panel 's recommendation results in remedies
under the DSU having retrospective effect; and (d) The Panel overlooked the standard of burden of
proof required to establish the lingering effects.
4. India requests the Appellate Body to reverse the findings of the Panel that the impugn ed
safeguard measures applied by India on Imports of Iron and Steel Products continue to have
"lingering effects" despite its expiry. India also requests the Appellate Body to overrule the
recommendation of the Panel to the DSB that to the extent the measu re continues to have any
effects, India bring it into conformity with its obligations under those agreements.
b. The Panel's finding with respect to the obligations incurred under the GATT 1994
and the effect of the obligations incurred under the GATT 1994 is erroneous
5. India challenges the conclusion of the Panel that India has not demonstrated that the measure
at issue resulted in a suspension of its obligations under Article XXIV of the GATT 1994, specifically
under Articles XXIV:4, XXIV:8, and XXIV:12. I ndia also challenges Panel 's conclusion that the
Indian competent authority failed to provide a reasoned and adequate explanation with regard to
the effect of the relevant obligations of the GATT 1994, more specifically the finding of the Panel
with respect to the Article II:1(b) and Article XXIV of GATT 1994. India believes that the Panel,
created an artificial distinction while interpreting the meaning of obligation incurred under GATT to

state that India has not demonstrated that the measure at issue res ulted in a suspension of its
obligations under Article XXIV of the GATT 1994. Further, with respect to the conclusion of the Panel
with respect to effect of India's obligation under Article II:1(b) and Article XXIV of GATT 1994, the
Panel failed to appreciate that India incurred obligations under Article II:1(b) and Article XXIV GATT,
1994 including tariff concessions which triggered increase in imports and subsequent serious injury
to Indian domestic Industry.
6. India requests the Appellate Body to reverse the findings of the Panel that India has not
demonstrated that the measure at issue resulted in a suspension of its obligations under Article XXIV
of the GATT 1994, specifically under Articles XXIV:4, XXIV:8, and XXIV:12. India also request the
Appellate Body to overrule the conclusion of the Panel that Indian competent authority failed to
provide a reasoned and adequate explanation with regard to the effect of the relevant obligations of
the GATT 1994, more specifically the finding of the Panel with respec t to the Article II:1(b) and
Article XXIV of GATT 1994.
c. The Panel's Findings that India failed to provide a reasoned explanation that the
increase in imports of the product concerned into India occurred as a result of
unforeseen developments are erroneous
7. India further challenges the finding of the Panel that India violated Article XIX of GATT 1994
on the ground that India failed to provide a reasoned explanation that the increase in imports of the
product concerned into India occurred as a result of unf oreseen developments. While giving its
conclusion, the Panel has basically suggested that India was required to do a country -wise and a
product wise analysis. The Panel has also stated that the timing of the unforeseen developments is
a relevant consideration for showing that the unforeseen developments resulted in an increase in
imports. India submits that the findings of the Panel besides being erroneous, cast an additional and
unwarranted burden on India which is not expressly mentioned in GATT 1994 or t he Agreement on
Safeguards.
8. India requests the Appellate Body to reverse the conclusion of the Panel that India violated
Article XIX of GATT 1994 on the ground that India failed to provide a reasoned explanation that the
increase in imports of the product concerned into India occurred as a result of unforeseen
developments.
d. The Panel erred in stating that the Annualization of data done by Indian Authority
was inconsistent with Article 4.2(a) and 4.2(b) of the Agreement on Safeguards
9. India also challenges the conclusion of the Panel that the safeguard measures imposed by
India was inconsistent with Article 4.2(a) and 4.2(b) of the Agreement on safeguards on the ground
that Indian competent authority failed to base its analysis of trends in imports and tren ds in injury
factors on objective evidence, when it relied at least partly on annualized data. India considers that
the findings of the Panel are erroneous because: (a) Annualization is a widely used statistical tool
and its usage does not require a "compe lling explanation" as long as there is no evidence of bias;
and (b) the lack of explanation regarding annualization is not a violation of Article 4.2(a) of the
Agreement on Safeguards.
10. India request the Appellate Body to reverse the decision of the Panel that the safeguard
measures imposed by India was inconsistent with Article 4.2(a) and 4.2(b) of the Agreement on
safeguards on the ground that Indian competent authority failed to base its analysis of trends in
imports and trends in injury factors on objective evidence, when it relied at least partly on annualized
data.
e. The Panel erred in stating that Indian competent authority failed to properly
examine the price competition between imported and domestic products, when it
based its price comparison on t he average unit price of imported products and the
average unit price of the like or directly competitive domestic products
11. India challenges the finding of the Panel that Indian competent authority failed to properly
examine the price competition between imported and domestic products, when it based its price
comparison on the average unit price of imported products and the average unit price of the like or
directly competitive domestic products. India believes that while giving its conclusion, the Panel

failed to appreciate that the Agreement on Safeguards does not at all envisage a comparison of
prices as required in Article 2.4 of the Anti-Dumping Agreement. The Panel failed to appreciate that
agreement on safeguard does not require a division/categorization of every subset of a product with
respect to their pricing.
12. The Appellate Body is requested to reverse the conclusion of the Panel that Indian competent
authority failed to properly examine the price competition between imported and domestic products,
when it based its price comparison on the average unit price of imported products and the average
unit price of the like or directly competitive domestic products.
f. The Panel's finding with respect to the Non-attribution analysis is erroneous
13. India appeals against the conclusion of the Panel with respect to the non-attribution analysis
in as much as it is based on the erroneous conclusion with respect to the determination of "relevance"
of "other factors". India believes that the Panel failed to consider that with regard to the "other
factors", the text of Article 4.2(a) specifically empowers the Competent Authority to make a
judgment whether a particular factor is relevant or not, based on the tests of its being "of an
objective and quantifiable nature" and "having a bearing on the situation" of the domestic industry.
It is only after the Competent Authority decides about the "relevance " of a factor applying the
twin criteria that the obligation of carrying out the non -attribution analysis in terms of the second
part of Article 4.2(b) shall arise.
14. India requests the Appellate Body to declare the finding of the Pa nel that India violated
Article 4.2(b) of the Agreement on Safeguards in as much as the finding of the Panel is based on
erroneous conclusion wit h respect to the non -attribution analysis regarding the determination of
"relevance" of "other factors" erroneous.
15. India notes that the above grounds of appeal are without prejudice to the arguments
developed in India's Appellant's Submission.