CHINA – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FROM THE UNITED STATES REPORT OF THE PANEL
Document: Addendum
Date: 16 August 2023
Document codes: WT/DS558/R/Add.1; WT/DS558/R.
Complainant: U.S.
Respondent: China
Third parties: Brazil, Canada, Egypt, EU, Guatemala, India, Indonesia, Japan, Kazakhstan, Mexico, New Zealand, Norway, Russia, Singapore, South Africa, Switzerland, Taiwan, Thailand, Turkey, Ukraine, Venezuela
Dispute stage: Panel
Agreements cited: Art. I:1, II:1(a), II:1(b)  GATT 1994

CHINA – ADDITIONAL DUTIES ON CERTAIN PRODUCTS
FROM THE UNITED STATES
REPORT OF THE PANEL
Addendum
This addendum contains Annexes A to D to the Report of the Panel to be found in document

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures Concerning Substantive Meetings with
Remote Participation
11
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of the United States 15
Annex B-2 Integrated executive summary of the arguments of China 35
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of the European Union 48
Annex C-2 Integrated executive summary of the arguments of Japan 53
Annex C-3 Integrated executive summary of the arguments of New Zealand 56
Annex C-4 Integrated executive summary of the arguments of Norway 57
Annex C-5 Integrated executive summary of the arguments of the Russian Federation 61
Annex C-6 Integrated executive summary of the arguments of Switzerland 65
Annex C-7 Integrated executive summary of the arguments of Türkiye 69
Annex C-8 Integrated executive summary of the arguments of Ukraine 75
ANNEX D
COMMUNICATIONS BY THE PANEL
Contents Page
Annex D-1 Communication by the Panel on requests for enhanced third-party rights 79
Annex D-2 Communication by the Panel on China's request for a ruling under Article 6.2
of the DSU
81

ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures Concerning Substantive Meetings with Remote
Participation
11

ANNEX A-1
WORKING PROCEDURES OF THE PANEL
Adopted on 5 April 2019
General
1. (1) In these proceedings, 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) Nothing in the DSU or 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 written 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 sh all
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 proceedings, including with respect to requests for preliminary rulings in accordance with
paragraph 4 below.
Preliminary rulings
4. (1) If China 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 procedure applies. Exceptions to
this procedure shall be granted upon a showing of good cause.
a. China 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.

The United States 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 submis sions 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 prejudi ce to the parties' right to request other types of
preliminary or procedural rulings during the proceedings, 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. The Panel
may grant reasonable extensions of time for the submission of an alternative translation upon
a showing of good cause.
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 the United States should be numbered USA-1, USA-2, etc.
Exhibits submitted by China should be numbered CHN -1, CHN-2, etc. If the last exhibit in
connection with the first submission was numbered USA-5, the first exhibit in connection with
the next submission thus would be numbered USA-6.
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together
with each of its submissions, oral statements, and responses to questions.
(3) If a party submits a document that has already been submitted as an exhibit by the
other party, it should explain why it is submitting that document again.

(4) If a party includes a hyperlink to the content of a website in a submission, and intends
that the cited content form part of the official record, the cited content of the website shall be
provided in the form of an exhibit.
Editorial Guide
8. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions (electronic copy
provided).
Questions
9. The Panel may pose questions to the parties and third parties at any time, including:
a. Before any meeting, the Panel may send written questions, or a list of topics it intends
to pursue in questioning orally during a meeting. The Panel may ask different or additional
questions at the meeting.
b. The Panel may put questions to the parties and third parties orally 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 proceedings 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 th an
5:00 p.m. (Geneva time) two (2) 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 Panel as early as possible,
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.
15. The substantive meetings of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite the United States to make an opening statement to present its
case first. Subsequently, the Panel shall invite China to present its point of view. In the second
substantive meeting, China shall be given the opportunity to make its statement first.
b. Before each party takes the floor, it shall provide the Panel and other partici pants at
the meeting with a provisional written version of its statement. If interpretation is needed,
each party shall provide additional copies for the interpreters.
c. 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 approximately one (1) hour.
If either party considers that it requires more time for its opening statement, it should inform
the Panel and the other party at least five (5) days prior to t he meeting, together with an
estimate of the expected duration of its statement. The Panel will accord equal time to the
other party.
d. After the conclusion of the opening statements, the Panel shall give each party the
opportunity to make comments or ask the other party questions.

e. The Panel may subsequently pose questions to the parties.
f. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with the United States 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.
g. Following the meeting:
i. Each party shall submit a final writte n version of its opening statement no later than
5:00 p.m. (Geneva time) on the second 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 timefra me 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.
Third-party session
16. The third parties shall be present at the meetings only when invited by the Panel to appear
before it.
17. (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 proceedings and the
submissions of the parties and third parties.
18. 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 proceedings, to
allow sufficient time to ensure availability of interpreters.
19. (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) two (2) working days before the third-
party session of the meeting with the Panel.
20. The third-party session shall be conducted as follows:
a. All parties and third parties may be present during the entirety of this session.
b. The Panel shall first hear the oral statements of the third parties. Each third party making
an oral statement at the third-party session shall provide the Panel and other participants
with a provisional written version of its statement before it takes the floor. If interpretation
of a third party's oral statement is needed, that third party shall provide additional copies
for the interpreters.

c. Each third party should limit the duration of its statement to 15 minutes, and avoid
repetition of the argumen ts already in its submission. If a third party considers that it
requires more time for its opening statement, it should inform the Panel and the parties
at least five (5) days before the meeting, together with an estimate of the expected
duration of its s tatement. The Panel will accord equal time to all third parties for their
statements.
d. After the third parties have made their statements, the parties shall be given the
opportunity to pose questions to any third party for clarification on any matter r aised in
that third party's submission or statement.
e. The Panel may subsequently pose questions to any third party.
f. Following the third-party session:
i. Each third party shall submit the final written version of its oral statement, no later
than 5:00 p.m. (Geneva time) on the second working day following the meeting.
ii. Each party may send in writing, within the timeframe to be established by the Panel
before the end of the meeting, any questions to a third party or parties to which it
wishes to receive a response in writing.
iii. The Panel may send in writing, within the timeframe to be established by the Panel
before the end of the meeting, any questions to a third party or parties to which it
wishes to receive a response in writing.
iv. Each third party choosing to do so shall respond in writing to written questions from
the Panel or a party, within a timeframe established by the Panel before the end of the
meeting.
Descriptive part and executive summaries
21. 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 serv e
as a substitute for the submissions of the parties and third parties in the Panel's examination of the
case.
22. Each party shall submit a single integrated executive summary. The summary shall summarize
the facts and arguments as presented to the Panel in the party's first and second written
submissions, its oral statements, and if possible, its responses to questions following the first and
second substantive meetings. The timing of the submission of the integrated executive summary
shall be indicated in the timetable adopted by the Panel.
23. Each integrated executive summary shall be limited to no more than 30 pages.
24. The Panel may request the parties and third parties to provide executive summaries of facts
and arguments presented in any other s ubmissions to the Panel for which a deadline may not be
specified in the timetable.
25. 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 (6) pages. If a third-
party submission and/or oral stateme nt does not exceed six (6) pages in total, this may serve as
the executive summary of that third party's arguments.
Interim review
26. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interi m 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.
27. 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 req uest for
review.
Interim and Final Report
28. 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
29. The following procedures regarding service of documents apply to all documents submitted by
parties and third parties during the proceedings:
a. Each party and third party shall submit all documents to the Panel by submitting them
with the DS Registry.
b. Each party and third party shall submit all documents to the Panel in Microsoft Word format
and in PDF format as an e -mail attachment, or if impractical, on a CD -ROM or a DVD by
5:00 p.m. (Geneva time) on the due dates established by the Panel. The PDF version shall
constitute the official version for the purposes of submission deadlines and the record of
the dispute. Email of a document shall constitute electronic service on the Panel, the other
party, and the third parties.
c. All 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 in the
proceedings. If a CD -ROM/DVD is provided, it shall be filed with the DS Registry (office
No. 2047) by 5:00 p.m. (Geneva time) on the due dates established by the Panel.
d. By 5:00 p.m. (Geneva time) on the next working day following the electronic submission,
each party and third party shall submit one (1) paper copy of all documents it submits to
the Panel, including the exhibits, with the DS Registry (office No. 2047). If any documents
are in a format that is impractical to submit as a paper copy, the party shall inform the
Panel and the other party (and third parties if appropriate) accordingly.
e. In addition, each party and third party i s invited to submit all documents through the
Digital Dispute Settlement Registry (DDSR) within 24 hours following the deadline for the
submission of the electronic 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.
f. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in a ddition, serve any submissions in advance of the first substantive
meeting with the Panel directly on the third parties. Each third party shall serve any
document submitted to the Panel directly on the parties and on all other third parties. A
party or third party may serve its documents on another party or third party by email or
on a CD-ROM or DVD.
g. Each party and third party shall submit its documents with the DS Registry by 5:00 p.m.
(Geneva time) on the due dates established by the Panel.
h. 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
30. The Panel may grant leave to a party or third party to correct clerical errors in any of its
submissions (including paragraph numbering and typographical mistakes). Any such request should
identify the nature of the errors to be corrected, and should be made promptly following the filing
of the submission in question.

ANNEX A-2
ADDITIONAL WORKING PROCEDURES CONCERNING SUBSTANTIVE MEETINGS
WITH REMOTE PARTICIPATION
Adopted on 18 February 2022
General
1. These Additional Working Procedures set out terms for holding the substantive meetings of
the Panel remotely.
Definitions
2. For the purposes of these Additional Working Procedures:
"Host" means the designated person within the WTO Secretariat responsible for the
management of the platform for participants to take part in the meeting with the Panel.
"Participant" means any authorized person taking part in the meeting, including the
Members of the Panel, the WTO Secretariat staff involved in the dispute and the organization
of the meeting, members of the parties' and third parties' delegations, and interpreters.
"Platform" means the Cisco Webex platform.
Equipment and technical requirements
3. Each party shall be responsible for ensuring that the members of its delegation join the
meeting using the designated platform and satisfy the minimum equipment and technica l
requirements of the platform provider for the effective conduct of the meeting.
4. Technical questions, including the minimum equipment and technical requirements for the
usage of the platform, will be addressed in the advance testing sessions between th e host and
participants provided for in paragraph 7 below.
Technical support
5. (1) The Secretariat has limited ability to offer remote assistance during, and in advance of
the meeting. Each party, therefore, is responsible for providing its own technical support to
the members of its delegation.
(2) The host will assist participants in accessing and using the platform in preparation for,
and during the course of, the meeting with the Panel. The host will prioritize assisting those
participants designated as main speakers on the delegations' lists.
Pre-meeting
Registration
6. Each party shall provide to the Panel the list of the members of its delegation on the dedicated
form in Annex 1 below, no later than 5:00 p.m. (Geneva time) ten working days before the start of
the meeting. The list shall indicate those participants designated as main speakers.

Advance testing
7. The Secretariat will hold two testing sessions with participants before the substantive meeting
with the Panel. One of these sessio ns will be a joint session with all participants in the meeting.
These testing sessions will seek to reflect, as far as possible, the conditions of the proposed meeting.
Participants should make themselves available for the test ing sessions. The Secretariat will be in
contact with the participants to set the schedule of the testing sessions in due course.
Confidentiality and security
8. The meeting shall be confidential and the rules of the DSU continue to apply during the remote
session of the meeting.
9. Each party shall follow any security and confidentiality protocols set by the Panel in advance
of the meeting.
10. The participants shall connect to the meeting through a secure internet connection and shall
avoid the use of an open or public internet connection.
Conduct of the meeting
Recording
11. The Secretariat will record the meeting in its entirety. The recording of the meeting shall form
part of the panel record.
12. Any recording of the meeting or any part thereof other than that referred to in paragraph 11,
through any means, including audio or video recording, or screenshot, is prohibited.
Access to the virtual meeting
13. Participants shall access the virtual meeting in accordance with these Additional Working
Procedures.
14. (1) The host will invite participants via email to join the virtual meeting.
(2) For security reasons, access to the virtual meeting will be password-protected and
limited to participants. Participa nts shall not forward or share the virtual meeting link or
password with unauthorized persons.
(3) Each party shall ensure that only participants from its delegation access the virtual
meeting.
Advance log-on
15. (1) The virtual meeting room will be access ible 60 minutes in advance of the scheduled
start time of the meeting.
(2) To ensure that the meeting starts as scheduled, participants must login to the platform
at least 30 minutes in advance of the scheduled start time of the meeting.
(3) Participants will be placed in a virtual lobby where they will remain until the Panel is
ready to start the meeting, at which time the host will admit them to the meeting.

Document sharing
16. (1) Before each party takes the floor, it shall email the Panel and other participants at the
meeting a provisional written version of its statement, including any exhibits.
(2) Any participant wishing to share a document with the other participants during the
meeting – including via screen sharing – shall email the document and confirm that the other
participants have received the document, before first referring to the document at the
meeting.
Pauses for internal coordination and consultation
17. Parties are free to internally coordinate and consult while the meeting is ongoing so long as it
is not disruptive to the proceedings, but they should be aware that the chat feature of the platform
is visible to all participants. The Panel may briefly pause a session at any time, on its own initiative
or upon request of a party, to enable any necessary internal coordination and consultation.
Participation
18. Participants who are not speaking are expected to have their microphone on mute. They may
also wish to turn off their camera to preserve bandwidth. If a participant wishes to take the floor,
they should use the "raise a hand" function in the platform. Once the chairperson gives the floor to
the participant, they should unmute their microphone and turn their camera on.
Communication breakdown
19. Each party will 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 parties and
third parties shall immediately notify the Panel of any technical or connectivity issues affecting the
participation of their delegation, or a member of their delegation, in the meeting. To do so, the party
that experiences the technical or connectivity issue shall:
(1) if possible, immediately intervene at the meeting and briefly state the nature of the
issue experienced; or
(2) if doing so is not possible, immediately contact the host and explain the nature of the
issue experienced. The host can be contacted via the platform chat, by sending an email to
leslie.stephenson@wto.org, or by telephone at +41 22 739 6148.
20. The Panel may suspend the proceedings until the technical issue is resolved or continue the
proceedings with those that are connected.
Relationship with the Working Procedures adopted by the Panel
21. These Additional Working Procedures complement the Working Procedures adopted by the
Panel, and to the extent of any conflict between the two, supersede them.

ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of the United States 15
Annex B-2 Integrated executive summary of the arguments of China 35

ANNEX B-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES
EXECUTIVE SUMMARY OF U.S. FIRST WRITTEN SUBMISSION
1. The United States has brought this dispute to address measures adopted by China that are
plainly inconsistent with the fundamental WTO obligations to provide Most-Favored-Nation treatment
(MFN) and treatment no less favorable than that provided for in a Member's Schedule of Concessions,
as set out respectively in Articles I and II of the General Agreement on Tariffs and Trade 1994
("GATT 1994").
2. Effective April 2, 2018, China applied additional duties of 15 percent or 25 percent on 128
tariff lines for products originating in the United States. The additional duties for all 128 tariff lines
resulted in tariffs applied to U.S.-originating products that are higher than the rates of duty applied
to other WTO Members on an MFN basis. Moreover, for 123 tariff lines, the additional duties resulted
in tariffs applied to U.S. -originating products that exceed the rates of duty set out in China's
Schedule.
3. On March 23, 2018, China issued the Ministry of Commerce Notice on Publicly Soliciting
Opinions on U.S. Imported Steel and Aluminum Products 232 Measures and Chinese
Countermeasures ("Opinions Notice"). The Opinions Notice solicited public comment regarding
China's proposal to impose additional duties of 15 percent or 25 percent on the 128 tariff lines for
products originating in the United States.
4. On April 1, 2018, the day immediately following the close of the eight -day public comment
period, China issued the State Council Customs Tariff Commission Notice on Suspension of Duty
Concession Obligations on Some Imported Products Originating from the United States
("Implementation Notice"). The Implementation Notice imposed the additional duties with an
effective date of April 2, 2018. The Implementation Notice indicated that the relevant duties of 15
percent or 25 percent apply in addition to the currently applied tariff rates, and will be assessed on
an ad valorem basis. Specifically, for each tariff line, "the imposed additional tariff rate" is added to
the "current applied tariff rate," and the sum is multiplied by the "dutiable value" in order to calculate
the duties owed.
5. A list of the 128 tariff lines of U.S. -originating products subject to the additional duties is
attached to the Opinions Notice , with a product description assign ed at the 8 -digit tariff level.
According to the list, 120 tariff lines are subject to additional duties of 15 percent, and 8 tariff lines
are subject to additional duties of 25 percent. A list of the same 128 tariff lines is also included as
an attachment to the Implementation Notice.
6. The 128 tariff lines of U.S. -originating products subject to additional duties fall under 6
different chapters of the Harmonized Tariff Schedule ("HTS") and range from steel and aluminum
products to a large number of food and agriculture products. The Opinions Notice mentions that the
additional duties are intended to "balance the loss inflicted on our country by the U.S. 232 Measures
[…]."
7. The United States will show that China has breached its MFN commitments by refer encing
three numbers for each tariff line at issue: (1) China's applied MFN rate; (2) China's applied tariff
rate on the U.S.-originating products before the additional duties took effect on April 2, 2018; and
(3) China's additional duty rate on the U.S.-originating products following the April 2nd effective date.
8. As a general matter, China's applied MFN rates are published in an annual tariff plan. By
matching individual 8-digit tariff lines, the United States was able to ascertain the applied MFN rates
for the 128 tariff lines at issue in this dispute. The second number the United States referenced for
each tariff line is China's applied tariff rate on U.S.-originating products before the additional duties
took effect on April 2, 2018. As stated in para graph 4 of the Implementation Notice, China will
calculate the additional duties in addition to the "current applied tariff rate." The third figure the

United States referenced is China's additional duty rate on the U.S.-origin product since the effective
date of April 2, 2018. This number is given in the Implementation Notice as 15 percent for 120 tariff
lines and 25 percent for 8 tariff lines. Read together, the three numbers the United States referenced
for each tariff line – (1) China's applied MFN rate; (2) China's applied tariff rate on U.S.-originating
products before the additional duties took effect on April 2, 2018; and (3) China's additional duty
rate on U.S.-originating products effective as of April 2, 2018 – demonstrate that for all 128 tariff
lines at issue in this dispute, China is applying duties higher than its MFN commitments.
9. Moreover, the United States will demonstrate that China has exceeded its bound rate
commitments by referencing three figures for each tariff line: (1) China's bo und rate commitment;
(2) China's applied tariff rate on U.S.-originating products before the additional duties took effect on
April 2, 2018; and (3) China's additional duty rate on U.S. -originating products effective as of
April 2, 2018.
10. With respect to China's bound rate commitments, the United States relied on China's WTO
accession documents and the Consolidated Tariff Schedules (CTS) database accessible via the WTO's
Tariff Download Facility (TDF) and Tariff Analysis Online. China's bou nd rate commitments are
defined in the Report of the Working Party on the Accession of China Addendum Schedule CLII –
People's Republic of China, Part I – Schedule of Concessions and Commitments on Goods . China's
bound rates are set at the HTS 8 -digit level. However, China has not updated its schedule of tariff
bindings since its accession, and available tariff binding data in TAO uses the 1996 revision of the
Harmonized System. China has obtained waivers from updating its bound rate commitments to
conform to HS2002, HS2007, HS2012, and HS2017, which obscures whether China has continued
to meet its commitments since the harmonized system and China's domestic tariff schedule have
undergone substantial revisions over the past 20 years.
11. Nevertheless, the United States has isolated the first six digits of each 8-digit tariff line subject
to China's additional duties measure. The United States converted these 6 -digit HS lines from
HS2017 to HS1996 using a conversion table published by the United Nations Statistics Division. The
United States then compared these HS1996 six -digit codes to CTS data from TDF to identify the
highest tariff binding for all lines under each 6 -digit subheading. The United States adopted this
maximum bound rate as the bound rate for all 8-digit HTS lines falling under that subheading.
12. Read together, the three figures the United States referenced for each tariff lines – (1) China's
bound rate; (2) China's applied tariff rate on U.S. -originating products before the additional duties
took effect on April 2, 2018; and (3) China's additional duty rate on the U .S.-originating products
effective as of April 2, 2018 – demonstrate that for 123 tariff lines at issue in this dispute, China
exceeded its bound rate commitments.
I. CHINA'S MEASURE IS INCONSISTENT WITH ITS OBLIGATIONS UNDER
ARTICLE I:1 OF THE GATT 1994
13. China's measure is inconsistent with Article I:1 of GATT 1994 because it fails to extend to
certain products of the United States an advantage granted by China to like products originating in
other countries.
14. First, China's measure is explicitly co vered by the text of Article I:1. A "customs duty" is a
charge, such as those in China's measure, that is imposed on imports at the border. The terms
"tariff", "customs duty", and "import duty," as used in the economics and international trade law,
are interchangeable, at least for purposes of the matters at issue in this dispute.
15. The MFN obligation of Article I:1 applies to both duties that have been bound as part of a WTO
Member's schedule under Article II of GATT 1994 and to unbound duties. It also applies to duties
that are set below a bound rate. Thus, Article I:1 requires a WTO Member that applies a duty rate
below the bound rate to imports from some WTO Members to apply that same duty rate to imports
of "like products" from all WTO Members.
16. In this dispute, China's measure imposes an additional 15 percent or 25 percent duty on
certain goods of the United States. A comparison of China's applied MFN rate, its applied tariff rate
on U.S. -originating products before the additional duties took e ffect on April 2, 2018, and its
additional duty rate on U.S.-originating products effective as of April 2, 2018, demonstrate that for

all 128 tariff lines at issue in this dispute, China's rate of duty applied to U.S. originating products is
above its MFN rate.
17. Second, each U.S. product subject to China's measure is "like" a product from other countries
not subject to the additional duties within the meaning of Article I:1. As explained, China's measure
discriminates against U.S products on the basis of origin. Thus, China's measure differentiates
among products not on the basis of physical characteristics, end-use, or consumer preferences, but
rather on a distinction that is not relevant to a "like product" analysis. In circumstances where the
only distinction between two sets of products is the country of origin, it may be presumed that the
two sets are "like products." Numerous Appellate Body and panel reports have adopted this analysis.
18. China's measure imposes additional duties only on produc ts originating in the United States,
and leaves unchanged the rate duty applicable to other countries, including all other WTO Members.
U.S origin is the only criterion used by the measure for imposing additional duties on U.S. products
covered by the 128 tariff lines, but not products from other countries entered under the same tariff
lines. Thus, the like product element of Article I:1 is satisfied.
19. Third, China's additional duties measure confers an advantage on like products of other
Members because it imposed additional duties on certain U.S. products, while leaving unchanged
the rate of duty applicable to goods of all other countries, including all other WTO Members. Article
I:1 refers to "any advantage" granted by a WTO Member to "any product originating in or destined
for any other country" (emphasis added). Article I:1 requires that an advantage, such as a certain
duty rate, granted by a WTO Member to a product from any country be granted to like products
from all WTO Members.
20. When considering the ordinary meaning of the term "advantage" in its context, it is evident
that providing a lower duty rate constitutes an advantage within the meaning of Article I:1. GATT
and WTO panels have interpreted the term "advantage" broadly. For purposes of this dispute, the
analytical framework adopted by the panel in EC – Bananas is particularly relevant. In its analysis
of the term "advantage," that panel determined that a measure that provides "more favorable
competitive opportunities" or "affects the com petitive relationship" between products of different
origin confers an "advantage" in terms of Article I:1.
21. In this dispute, for 128 tariff lines, China subjects products from other countries to a certain
duty rate. U.S.-originating products that fall under the same tariff lines, however, are subject to the
additional duties on top of that duty rate.
22. By providing a lower rate of duty to the like products of other countries as compared to U.S.
products, China is granting these products an advantage within the meaning of GATT Article I:1.
23. Fourth, Article I:1 requires that China accord to like products from the United States,
"immediately and unconditionally," the lower duties that it is providing to products from other
countries. The advantage pr ovided by China's measure is not "accorded immediately and
unconditionally" to like products from the United States.
24. The ordinary meaning of the term "immediately" does not raise any interpretative issues in
this proceeding. When a WTO Member grants a n advantage to products from one country, it is
required to extend such advantage to like products from all WTO Members at once. When as here,
a measure imposes duties on one WTO Member, and leaves duties on other Members unchanged,
the measure clearly does not "immediately" accord to that WTO Member an advantage that products
originating in other countries enjoy.
25. Similarly, the term "unconditionally" does not raise any interpretative issues in this
proceeding. The additional duties apply without respect to any sort of conditions.
26. China's additional duties measure went into effect on April 2, 2018. Thus, China has failed to
"immediately and unconditionally" extend to certain products from the United States the advantage
that it is providing to like products from other countries.

II. CHINA'S MEASURE IS INCONSISTENT WITH ITS OBLIGATIONS UNDER
ARTICLE II OF THE GATT 1994
27. China's measure is inconsistent with its obligations under Article II:1 of the GATT 1994, which
requires WTO Members to exempt products of another WTO Member from duties in excess of those
set forth in their Schedule of Concessions and accord treatment no less favourable than what is
provided for in that Schedule.
28. An evaluation of a claim under Article II:1(a) and (b) involves an identification of (1) the
treatment to be accorded under the importing Member's Schedule for the products at issue; (2) the
treatment actually accorded to those products when originating in the territory of a Member; and
lastly (3) whether the measure results in the imposition of duties on such products that are in excess
of what is provided for in the importing Member's Schedule.
29. In other words, if a measure results in the imposition of duties (x) that are in excess of the
duties provided for in the Schedule (y), the measure breaches the obligations under Article II:1(a)
and (b) of the GATT 1994. Additionally, establishing a breach of Article II:1(b) necessarily entails a
breach of Article II:1(a). For this reason, the United States turns first to paragraph (b) in Article II:1
of the GATT 1994.
30. Article II:1(b) is divided into two sentences. Under the first sentence, a WTO Member must
exempt the products of another WTO Member from any "ordinary customs duties" in excess of those
set forth in its Schedule when such products are imported into the territory of the former. Under the
second sentence, a WTO Member must exempt those products from all "other duties or charges" of
any kind that are in excess of those imposed as of certain dates.
31. The distinction between the first and second sentence concerns whether the duties in question
constitute "ordinary customs duties" or "other duties or charges." For purposes of this dispute, it is
legally immaterial whether the additional duties constitute "ordinary customs duties" or "other duties
or charges" because, under either characterization, the duties exceed China's rates bound in its
schedule. With respect to the first sentence of Article II:1(b), for 123 tariff lines at issue, China has
imposed duties in excess of the bound rate commitments found in its Schedule.
32. Given China's breach of Article II:1(b) through the imposition of the duties in excess of its
bound rate on products originating in the United States, China has correspondingly accor ded less
favourable treatment to these products and breached Article II:1(a) as well.
III. IN THE EVENT CHINA ATTEMPTS TO PRESENT A DEFENSE BASED ON A
SAFEGUARD THEORY, SUCH A DEFENSE WOULD BE COMPLETELY WITHOUT
MERIT BECAUSE THE UNITED STATES HAS NOT ADOPTED A SAFEGUARD
33. The introductory language in China's measure indicates that it may attempt to assert a defense
based on some type of theory that its additional duties are justified under the WTO Agreement on
Safeguards ("the Safeguards Agreement"). In the event that China attempts to present such a
defense, the United States will respond to China's arguments in subsequent submissions.
34. Nonetheless, in this first submission, the United States would emphasize a key, fatal flaw in
any defense based on the Safeguards Agreement: namely, no U.S. safeguard is related to the
matters in this dispute. For the Safeguard Agreement to apply to a Member's measure, the Member
must invoke the Safeguard Agreement as a justification for suspending GATT 1994 obligations or
withdrawing or modifying tariff concessions. The United States has not invoked the Safeguard
Agreement in connection with this dispute, and the Safeguard Agreement simply does not apply.
35. Article XIX of the GATT 1994 and the Safeguards Agreement establish a WTO Member's right
to implement a safeguard measure, temporarily suspending concessions and other obligations, when
that WTO Member invokes this right with the required notice indicating that it has determined that
a product is being imported into its territory in such increased quantities and under such conditions
as to cause serious injury or threat of serious injury to the WTO Member's domestic industry.
36. The essential point that a Member must invoke the protections of Article XIX for the safeguard
provisions to apply is reinforced by the text of the Safeguards Agreement. The Safeguards

Agreement elab orates on the rights and obligations in Article XIX. Article 1 of the Safeguards
Agreement states "[t]his Agreement establishes rules for the application of safeguard measures
which shall be understood to mean those measures provided for in Article XIX of the GATT 1994."
37. One of the requirements from Article XIX that the Safeguards Agreement elaborates upon is
that the right to apply a safeguard measure requires invocation of Article XIX through written notice
of that invocation to other WTO Members. If that right is not exercised with the appropriate notice
invoking this authority, a measure cannot be considered a safeguard under Article XIX and the
Safeguards Agreement. Moreover, China cannot exercise the rights of the United States under
Article XIX. If the United States did not invoke Article XIX, that is simply the end of the matter.
38. The Safeguards Agreement expressly defines safeguard measures as those provided for in
Article XIX of the GATT 1994, which in turn makes clear that an importing Member must invoke the
right under Article XIX in order to apply a safeguard measure. Without an invocation of that right, a
measure does not qualify as a safeguard under the WTO Agreement.
EXECUTIVE SUMMARY OF THE U.S. OPENING STATEMENT AT THE FIRST SUBSTANTIVE
MEETING OF THE PANEL
I. INVOCATION IS A CONDITION PRECEDENT TO APPLY A SAFEGUARD
MEASURE UNDER GATT ARTICLE XIX AND THE WTO AGREEMENT ON
SAFEGUARDS
39. The first step to determine whether a WTO Member has applied a safeguard measure under
Article XIX and the Safeguards Agreement is identifying whether the Member in question has invoked
the right under these provisions. Absent this invocation, a measure does not and cannot fall under
the WTO's safeguard disciplines. The reason for this is simple. The text of the relevant provisions
establishes this to be the case.
40. First, Article 1 of the Safeguards Agreement defines a safeguard as "to mean those measures
provided for in Article XIX of GATT 1994." Second, Article XIX of the GATT 1994, in relevant part,
provides:
If … any product is being imported into the territory of [a] contracting party in such
increased quantities and under such conditions as to cause or threaten serious injury to
domestic producers in that territory of like or directl y competitive products, the
contracting party shall be free, in respect of such product, … to suspend [its] obligation
in whole or in part or to withdraw or modify [its] concession.
41. The text makes clear that a Member which finds that increased imports of a product have
caused or threaten serious injury to domestic producers of that product may, in its discretion, invoke
the right reserved to it and apply a safeguard measure. The phrase "shall be free" establishes that
the decision is up to that Member. The Appellate Body in Indonesia – Iron and Steel Products
reasoned similarly that the words "shall be free" in Article XIX "simply accord to a Member the
'freedom' to exercise its right to impose a safeguard measure by suspending a GATT obligation or
withdrawing or modifying a GATT concession if the conditions set out in the first part of
Article XIX:1(a) are met." Accordingly, a Member may elect, as its right, to invoke Article XIX and
implement a safeguard measure. Absent a Member's invocation of that right, however, the safeguard
provision is not relevant, and a measure cannot constitute a safeguard.
42. A Member's ability to exercise that right, at a minimum, requires invocation with notice to
other Members under Article XIX:1(b) before the Member can t ake the action to apply a safeguard
measure. Without invocation, and without notice of that invocation, a Member has not invoked the
right under Article XIX and, therefore, is not "free" to suspend any obligation, in whole or in part, or
withdraw or modify any concession.
II. CHINA'S ARGUMENT THAT THE APPLICABILITY OF THE SAFEGUARDS
AGREEMENT IS AN "OBJECTIVE QUESTION" MISSES THE POINT
43. China argues that the U.S. position is incorrect because the applicability of the Safeguards
Agreement must involve an "objective question." This argument completely misses the point. The

United States agrees that the applicability of the Safeguards Agreement to a particular matter is an
"objective question." The United States disagrees, however, on the specific content of that objective
question. As the United States explained in its first submission, the first step in the analysis is the
"objective question" of whether a Member has sought to invoke its right under Article XIX to suspend
its obligations or to withdraw conc essions. If not, then a safeguard is not involved. If so, the
"objective question" will turn to whether the measure at issue meets additional elements required
for meeting the definition of a safeguard.
44. Whether or not a Member has invoked the Safeguar ds Agreement is an objective question,
involving what actually happened in the past. And here, the United States did not invoke any rights
under Article XIX. And, indeed, China presents no factual evidence to the contrary.
45. In its written submission, China relies on findings in other disputes. Those disputes, however,
are inapplicable; they simply do not address a situation where a Member has never invoked its rights
to adopt a safeguard under Article XIX. That no prior reports address the current situ ation is
completely unsurprising. To the knowledge of the United States, this is the first time that any
Member has ever asserted the right to adopt unilateral retaliation simply on the basis that it viewed
another Member as adopting a safeguard.
46. Notably, the Appellate Body in the Indonesia – Iron and Steel Products dispute cited by China
was reviewing a situation where both parties to the dispute believed the measure at issue was a
safeguard and the dispute followed invocation and notification under Article XIX and the Safeguards
Agreement. The framework in Indonesia – Iron and Steel Products, accordingly, is fully consistent
with the proposition that invocation and notice under Article XIX are a necessary but not a sufficient
condition to impose a safeguard measure.
47. In fact, the Appellate Body in Indonesia – Iron and Steel Products adopted a multi -step
analysis for the existence and application of safeguard measures. "In carrying out this analysis," the
Appellate Body mentioned, "it is important t o distinguish between the features that determine
whether a measure can be properly characterized as a safeguard measure from the conditions that
must be met in order for the measure to be consistent with the Agreement on Safeguards and the
GATT 1994. Put differently, it would be improper to conflate factors pertaining to the legal
characterization of a measure for purposes of determining the applicability of the WTO safeguard
disciplines with the substantive conditions and procedural requirements that dete rmine the
WTO-consistency of a safeguard measure."
48. Under the first step of that analysis, a WTO Member must invoke the right under Article XIX
for a measure to be a safeguard within the meaning of Article 1 of the Safeguards Agreement. Of
course, as in Indonesia – Iron and Steel Products , this is not enough for the measure to be a
safeguard as it still needs to meet the other requirements before moving onto a determination
whether the safeguard measure was lawfully applied. But if the first and crucial step involving
invocation does not take place, the measure cannot be a safeguard and another WTO Member's
characterization is immaterial.
III. CHINA'S APPROACH FAILS UNDER ITS OWN TEST
49. Significantly, even under the approa ch China urges this Panel to adopt, the relevant factors
still support the United States' position. The U.S. security measures were imposed under domestic
law addressing threats to national security and not Section 201 of the Trade Act of 1974 that the
United States uses to impose import relief in the form of a safeguard measure. Moreover, the
underlying procedures to impose the U.S. security measures involved the U.S. Department of
Commerce with engagement from the U.S. Department of Defense and not the U. S. International
Trade Commission, which is the only competent authority in the United States authorized to
investigate whether a product is being imported in such increased quantities and under such
conditions as to cause or threaten to cause serious injury to a domestic industry that produces like
or directly competitive products for the purpose of applying a safeguard measure.
50. Accordingly, were the Panel to evaluate the U.S. security measures under the factors proposed
by China, it would find that th e United States' characterization of the measure under its domestic
law is as a national security matter, the procedures did not involve the only competent authority
that can administer a safeguards investigation, and of course, there was no notification to the WTO

Committee on Safeguards because the United States, unlike the implementing Member in
Indonesia – Iron and Steel Products, did not invoke Article XIX of the GATT 1994.
IV. CHINA'S ERRONEOUS APPROACH WOULD UNDERMINE THE RULES -BASED
TRADING SYSTEM
51. Any measure with dutiable consequences – such as ordinary customs duties, other duties or
charges, fees or charges for services rendered, antidumping duties, anti-subsidy duties, balance-of-
payments duties, or others – represents a tariff barrier and restricts imports of a product that
competes with the products of a domestic producer. The potential effect of a measure is not the
touchstone to determine what qualifies as a safeguard. If that were the case, the term would have
no meaning and the authority to define what constitutes a safeguard measure would belong to the
WTO Member seeking to challenge the measure . Or, that WTO Member could simply characterize
any measure it dislikes as a safeguard and immediately retaliate in a unilateral fa shion without
having to initiate dispute settlement proceedings. The extreme position China would countenance,
and that it asks the Panel to endorse, does not seem compatible with and supportive of a rules -
based trading system.
EXECUTIVE SUMMARY OF U.S. SECOND WRITTEN SUBMISSION
I. THE PLAIN MEANING OF THE TEXT OF GATT 1994 ARTICLE XIX
ESTABLISHES THAT INVOCATION IS A PRECONDITION TO APPLYING A
SAFEGUARD MEASURE
52. The text of GATT 1994 Article XIX, in its context and in the light of the agreement's obje ct
and purpose, establishes that invocation is a precondition to applying a safeguard measure. The
title of Article XIX, "Emergency Action on Imports of Particular Products", does not focus on any
particular type of measure, nor does it reference any type of obligation. Instead, the article sets out
rules for how a Member may choose to take action that would otherwise be inconsistent with
obligations under the GATT 1994 affecting imports of particular products. Further, the term
"emergency" in the title of Article XIX implies that safeguard measures are meant to address exigent
circumstances. The ordinary meaning of "emergency" is a situation "that arises unexpectedly and
requires urgent action."
53. Article XIX:1(a) allows a WTO Member to deviate from its obligations under the GATT 1994 if
the conditions set out in that provision are present. For analytical purposes, Article XIX:1(a) can be
divided into two parts. The first part sets out the conditions that, if present, would give a Member
the right to apply a safeguard. Where those conditions are present, the second part establishes the
right of a Member to apply a safeguard ( i.e., "the contracting party shall be free") and sets out
requirements for the application of a safeguard. Accordingly, Article XIX:1(a) establishes a right –
the right to suspend obligations or modify or withdraw concessions – in the sense that
Article XIX:1(a) permits a Member, when it has invoked this provision and under certain conditions,
to take action that would otherwise be inconsistent with its WTO obligations.
54. Under Article XIX:2, a Member's ability to take action pursuant to Article XIX:1 is conditioned
on invocation with notice to other Members before that Member can take action. The first sentence
of Article XIX:2 provides:
Before any contracting party shall take action pursuant to the provisions of
paragraph 1 of this Article, it shall give notice in writing to the CONTRACTING PARTIES
as far in advance as may be practicable and shall afford the CONTRACTING PARTIES
and those contracting parties having a substantial interest as exporters of the product
concerned an opportunity to consult with it in respect of the proposed action.
(emphasis added)
55. The ordinary meaning of the terms in the first sentence of Article XIX:2 show that invocation
is a precondition to applying a safeguard. The term "before" is defined as "preceding an event." The
term "pursuant" means "in accordance with". And the term "propose" means to "[p]ut forward or
present for consideration" or "discussion". Thus, invocation and notice from the WTO Member
proposing to take action must precede "action pursuant to" paragraph 1. Without such notice, a

Member is not seeking legal authority pursuant to Article XIX to suspend an obligation or to withdraw
or modify a concession.
56. Of note, the third sentence of Article XIX:2 provides a limited exception to the consultation
requirement:
In critical circumstances, where delay would cause damage which it would b e difficult
to repair, action under paragraph 1 of this Article may be taken provisionally without
prior consultation, on the condition that consultation shall be effected immediately
after taking such action.
Critically, this exception to act "without pr ior consultation" does not apply to the requirement in
Article XIX:2, first sentence, to invoke Article XIX by providing notice to Members in writing. Thus,
the requirement to provide notice is unconditional.
57. The text of Article XIX:3(a) of the GATT 1994 also shows that invocation is a precondition
to applying a safeguard measure. Under that provision, if the consultations envisioned by
Article XIX:2 fail to address the concerns of affected Members, affected Members can suspend
substantially equivale nt concessions or other obligations. These envisioned consultations are
triggered by the invocation and notice provision under Article XIX:2. In full, Article XIX:3(a)
provides:
If agreement among the interested contracting parties with respect to the action is not
reached, the contracting party which proposes to take or continue the action shall,
nevertheless, be free to do so, and if such action is taken or continued, the affected
contracting parties shall then be free, not later than ninety days after su ch action is
taken, to suspend, upon the expiration of thirty days from the day on which written
notice of such suspension is received by the CONTRACTING PARTIES, the application
to the trade of the contracting party taking such action, or, in the case env isaged in
paragraph 1(b) of this Article, to the trade of the contracting party requesting such
action, of such substantially equivalent concessions or other obligations under this
Agreement the suspension of which the CONTRACTING PARTIES do not disapprove.
58. Thus, in terms of Article XIX:3(a), without notice of a proposed action, a Member "which
proposes to take or continue the action shall [not] be free to do so." That is, without invocation,
a Member cannot take (and has not taken) action pursuant to Article XIX.
II. THE CONTEXT OF ARTICLE XIX CONFIRMS THAT INVOCATION IS A
PRECONDITION TO APPLYING A SAFEGUARD MEASURE
59. The context provided by other provisions of the WTO Agreement confirms that invocation is a
precondition to applying a safeguard mea sure. A number of rebalancing provisions in the WTO
Agreement confirm that Article XIX of the GATT 1994 establishes a right that must be invoked by
a Member taking action under that provision. Although the requirements vary, these provisions
contemplate a Member exercising a right through invocation and contain structural similarities to
Article XIX.
60. Specifically, the following provisions of the GATT 1994 contemplate a Member affirmatively
exercising the right to modify or withdraw a tariff concession o r to suspend an obligation through
invocation: Article XXVIII, Article XXIV, Article XVIII, Article II, and Article XXVII. In addition,
rebalancing provisions in other WTO agreements reflect a similar structure by which a Member may
invoke the right to mod ify or withdraw a tariff concession or to suspend an obligation, including:
Article XXI of the General Agreement on Trade in Services (GATS), Article 5 of the Agreement on
Agriculture (Agriculture Agreement), and Article 6 of the Agreement on Textiles and Clothing
(Textiles Agreement).
III. THE NEGOTIATING HISTORY OF ARTICLE XIX CONFIRMS THAT
INVOCATION IS A PRECONDITION TO APPLYING A SAFEGUARD MEASURE
61. The drafting history of Article XIX of the GATT 1994 dates back to negotiations to establish
the International Trade Organization of the United Nations (ITO). In 1946, the United States

proposed a draft charter for the ITO, which included a provision titled "Emergency Action on Imports
of Particular Products".
62. As originally drafted, the predecessor to Article XIX included an invocation requirement. The
invocation requirement in Article XIX stems from the provisions on providing notice of a proposed
action. During the negotiations on the text of the proposed ITO provision that became Article XIX,
however, some drafters suggested removing the notice requirement. Led by the United States, the
drafters agreed to keep the requirement.
63. In the course of negotiations, the Chairman suggested that the drafters agree about prior
notice, but suggested that to address "exceptional cases" the drafters "have to try to find a formula"
that "gives the right in very exceptional cases" to "take immediate action" without prior consultation.
The United States agreed with the Chairman, noting that "the Chairman's sug gestion that there
might be provision made for quicker action in exceptional cases is sound." After the drafters
discussed the compromise, the Chairman wrapped up the discussion on Article 29 by observing that,
if he saw the remarks of the drafters clearly, that there "will be prior consultation unless exceptional
circumstances make it impracticable." The drafters agreed with pausing the discussion on Article 29
until a new draft was presented by the rapporteur.
64. On November 14, 1946, the drafters discussed a revised version of Article 29. At the beginning
of the discussion on Article 29, the rapporteur observed that:
It seemed to be agreed that prior or simultaneous notice should in all cases be given,
but that with respect to consultation there should be some leeway in critical cases for
the action to be taken first and the consultation should follow upon it immediately. It is
believed that the draft as it originally stood permitted short notice. In other words,
under the original language of the draft it reads
Before any Member shall take action pursuant to the provisions of
paragraph 1 of this Article, it shall give notice in writing to the
Organisation as far in advance as may be practicable.
It seems to me that would permit of short notice; it could a[l]most be simultaneous.
Therefore, I did not think that any change was needed in that.
65. Regarding prior consultation, the rapporteur noted that new text had been added to Article 29
that would allow action without prior consultation in exceptional circumstances.
66. On November 20, 1946, the drafters issued a report that included a revised Article 29 that
retained the prior notice requirement. This version of Article 29 was included in the London Report
and it became Article 34 in the draft Charter of the ITO. While the drafters made further revisions
to Article 34 during the discussions in New York, Geneva, and Havana, the prior notice requirement
was kept by the drafters and found its way to the current Article XIX of the GATT 1994.
67. As the foregoing demonstrates, the drafters of the provision that became Article XIX of the
GATT 1994 made the intentional decision to keep the notice requirement. Accordingly, the drafting
history of Article XIX of the GATT confirms that invocation is a precondition to applying a safeguard
measure.
IV. THE TEXT OF THE SAFEGUARDS AGREEMENT ESTABLISHES THAT
INVOCATION IS A PRECONDITION TO APPLYING A SAFEGUARD MEASURE
68. The text of t he Safeguards Agreement further confirms that invocation is a precondition to
apply a safeguard measure. The Safeguards Agreement sets out detailed requirements for a Member
to follow regarding its application of a safeguard. Three articles of the Safeguar ds Agreement
highlight that invocation of Article XIX is the critical precondition for a Member to exercise its right
when departing from its obligations and commitments to prevent or remedy serious injury to a
relevant domestic industry.

69. First, the General Provision in Article 1 reaffirms that the Safeguards Agreement only applies
to measures that invoke Article XIX. In full, Article 1 of the Safeguards Agreement provides:
This Agreement establishes rules for the application of safeguard measures which shall
be understood to mean those measures provided for in Article XIX of GATT 1994.
70. An integral feature of the right in Article XIX, as explained above, is the requirement of
invocation as a precondition to taking action pursuant to Article XIX. The rules in the Safeguards
Agreement identify certain requirements that a Member must satisfy after deciding to take or seek
a safeguard measure. This includes, as discussed below, a Member's obligation to notify other
Members of its decision to institute an investigation under its domestic safeguards authority, to
notify other Members after finding serious injury to a domestic industry based on such an
investigation, and to notify other Members after the decision to apply a safeguard measure.
71. Second, Article 12 of the Safeguards Agreement reinforces the requirement of invocation as
a precondition to action under Article XIX. Article 12.1 of the Safeguards Agreement contains
requirements concerning notifications and consultation, and provides that there are three milestones
over the course of a safeguards investigation that a Member must notify to the Committee on
Safeguards. A Member must provide a notification when: (a) initiating a safeguards investigation
under its domestic authority, (b) making a finding that increased imports are causing or threatening
serious injury to a domestic industry, or (c) deciding to impose a safeguard measure based on an
investigation that results in a finding of serious injury.
72. In addition, Article 12.6 requires that Members "notify promptly the Committee on Safeguards
of their laws, regulations and administrative procedures relating to safeguard measures
as well as any modifications made to them." In other words, it is clear that a Member has invoked
Article XIX to apply or extend a safeguard measure and followed the procedural requirements in the
Safeguards Agreement when it notifies a decision according to Article 12.1(c) and it has taken that
decision under a provision of the safeguards laws, regulations, and adminis trative proceedings it
previously notified under Article 12.6. Consistent with this, other Members understand when a
safeguard measure has been imposed because the implementing Member will provide notice of the
measure taken under "laws, regulations and ad ministrative procedures" it already notified as its
domestic authority to apply a safeguard measure.
73. The ability of other Members to take action under Article 8.2 of the Safeguards Agreement is
dependent on an implementing Member actually invoking Article XIX. The rules regarding notification
of that invocation, as established above, appear in Article 12 of the Safeguards Agreement. Since
invocation involves the right under Article XIX that existed prior to the adoption of the Safeguards
Agreement, the latter does not transform the nature of that right but establishes the steps a Member
must take to exercise those rights.
74. In this dispute, the United States has not applied a safeguard measure because it has not
invoked Article XIX of t he GATT 1994. The absence of any invocation is clear because the United
States has not sent a notification to the Committee on Safeguards or taken any action under a
domestic authority that it previously notified under Article 12.6. Consequently, the actions that would
inform other Members of a decision to invoke Article XIX (notification of a decision to apply a
safeguard measure and adoption of the measure under domestic authority that has been notified
under Article 12.6) are absent from this dispute. Accordingly, since there has been no invocation,
China's failure to identify where and how the United States has taken a measure "provided for in"
Article XIX means that it cannot rely on Article 8.2 of the Safeguards Agreement to justify its
retaliation against the United States.
75. Third, Article 11 of the Safeguards Agreement reinforces the requirement of invocation as a
precondition to action under Article XIX.
V. THE NEGOTIATING HISTORY OF THE SAFEGUARDS AGREEMENT CONFIRMS
THAT INVOCATION IS A PRECOND ITION TO APPLYING A SAFEGUARD
MEASURE
76. The negotiating history of the Safeguards Agreement has its origins in the Tokyo Round
negotiations and a perceived need to clarify and strengthen the provisions of Article XIX of the

GATT 1994. For example, certain GATT contracting parties "affected by Article XIX measures wanted
its provisions to be clarified and re -inforced." They stressed the "need for more precise criteria
for invocation of the safeguard clause" . The Tokyo Declaration, adopted in September 1973 ,
stated that negotiations should examine "the adequacy of the multilateral safeguard system,
considering particularly the modalities of application of Article XIX, with a view to furthering trade
liberalization and preserving its results."
77. At the end of the Tokyo Round in April 1979, the negotiations reached an impasse over certain
issues and no new text was agreed to. Following the Tokyo Round, on November 29, 1982, the
contracting parties issued a Ministerial Declaration concerning the "need for an improved and more
efficient safeguard system which provides for greater predictability and clarity and also greater
security and equity for both importing and exporting countries." Among the issues highlighted for
consideration were "transparency," "coverage," "compensation and retaliation," and "notification."
78. On September 25, 1986, the contracting parties issued the Ministerial Declaration of Punta del
Este, Uruguay, thus beginning the Uruguay Round negotiations. Safeguard disciplines were again a
topic identified for discussion. Following the principles identified in the Ministerial Declaration
referenced above, the GATT Council of Ministers attempted to overcome the previous impasse
regarding the negotiations of safeguard disciplines. In his report regarding developments in this
context, the Chairman of the Council noted "a general recognition that safeguard actions should
only be taken if the criteria laid down in Article XIX were met."
79. The major issues confronted during the renewed negotiatio ns ultimately resulted in key
provisions of the Safeguards Agreement. This includes Article 1 (for the understanding that the rules
to implement a safeguard measure only apply to measures provided for in Article XIX), Article 12
(with respect to the notifi cation requirements), and Article 11 (confirming that the Safeguards
Agreement does not apply to a measure sought, taken, or maintained under provision other than
Article XIX).
80. Accordingly, the negotiating history confirms the plain meaning reflected in the text that the
rules in the Safeguards Agreement only apply to measures taken pursuant to Article XIX, that
invocation is the touchstone for whether a Member has taken a measure pursuant to Article XIX,
and that notification is the procedural mechanism to alert other Members of that invocation.
VI. THE U.S. SECTION 232 MEASURES CITED BY CHINA DO NOT FALL WITHIN
THE SCOPE OF THE SAFEGUARDS AGREEMENT
81. China's suggestion that the U.S. security measures under Section 232 of the Trade Expansion
Act of 1962 (Section 232) are safeguards cannot justify China's retaliatory tariffs, and does not
assist the Panel's objective assessment of the matter, because United States has not invoked
Article XIX. This is clear since the United States has not provided the notification under
Article 12.1(c) of the Safeguards Agreement that identifies a measure taken pursuant to a domestic
authority already notified to the Committee on Safeguards under Article 12.6 of the Safeguards
Agreement. As the United States has explained throughout this dispute, for a measure to fall under
the WTO's safeguards disciplines the importing Member must invoke Article XIX.
82. The United States recalls that the Safeguards Agreement only applies to measures taken
pursuant to Article XIX of the GATT, as confirmed in Article 11.1(c) of the Safeguards Agreement.
Under that provision, only measures sought, taken, or maintained pursuant to Article XIX fall within
the scope of the Safeguards Agreement. Here, the Section 232 measures cited by China were sought,
taken or maintained under Article XXI of the GATT 1994 – which is a provision "other than
Article XIX"; accordingly, by the plain text of the Safeguards Agreement, the Section 232 measures
cited by China simply do not fall within the scope of the Safeguards Agreement.
VII. THE SAFEGUARDS AGREEMENT ONLY APPLIES TO MEASURES TAKEN
PURSUANT TO ARTICLE XIX OF THE GATT 1994
83. In relevant part, Article 11.1(c) of the Agreement on Safeguards 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."

84. The words "sough t, taken or maintained" modify the word "measures" in Article 11.1(c).
"Sought" is the past tense and past participle of the verb "seek," which can be defined as "[t]ry or
attempt to do." "Taken" is the past participle of the verb "take," which can be defined as "[h]ave an
intended result; succeed, be effective, take effect." "Maintained" is the past tense and past participle
of the verb "maintain," which can be defined as "[c]ause to continue (a state of affairs, a condition,
an activity, etc.)." Definitions of the word "pursuant" – used as an adverb in Article 11.1(c) – include
"[w]ith to: in consequence of, in accordance with."
85. With these definitions in mind, the ordinary meaning of the terms in Article 11.1(c) can be
understood as "measures [that a Member has] tried to do, succeeded in doing or caused to continue
in accordance with provisions of the GATT 1994 other than Article XIX." The ordinary meaning of
these terms establishes that Article 11.1(c) is triggered – and the Agreement on Safeguards "does
not apply" – when a Member acts (by seeking, taking or maintaining a measure) pursuant to a
provision of the GATT 1994 other than Article XIX.
86. With these terms, Article 11.1(c) places the emphasis on whether a measure was sought,
taken, or maintained under a GATT 1994 provision other than Article XIX. Here, the United States
has expressly invoked a provision of GATT 1994 other than Article XIX – namely, Article XXI. This
is clear from U.S. statements, including those during meetings of the WTO Counc il for Trade in
Goods, that the United States took the action for the protection of its essential security interests
pursuant to Article XXI.
87. With this understanding in mind, it is clear that, under Article 11.1(c), the Agreement on
Safeguards "does not apply" when a Member has attempted or tried to take a measure in accordance
with provisions of the GATT 1994 other than Article XIX, or when the Member has succeeded in
taking such a measure or caused such a measure to continue. Here, the United States has attempted
to take – and succeeded in taking – the Section 232 security measures in accordance with Article XXI
of the GATT 1994. Accordingly, under the text of Article 11.1(c), the Agreement on Safeguards "does
not apply" here.
VIII. CHINA HAS NO BASIS FOR ASSERTING THAT ITS ADDITIONAL DUTIES ARE
AUTHORIZED BY ARTICLE 8.2 OF THE SAFEGUARDS AGREEMENT
88. The central question in this dispute is whether China has any justification for breaching
Articles I and II of the GATT 1994. China attempts to charac terize its additional duties as
"rebalancing measures" authorized by Article 8.2 of the Safeguards Agreement. This justification
lacks merit because such rebalancing measures require the existence of an underlying safeguard
measure; here, there is no relevant U.S. safeguard measure. Accordingly, the rights and obligations
under Article XIX of the GATT 1994 and the Safeguards Agreement are not applicable in this
proceeding.
89. As detailed below, China's characterization of its additional duties as rebalancing measures is
flawed in several respects. First, China derives its legal theory not from the text of the WTO
Agreement but from an Appellate Body report that is not applicable in this dispute and, in any event,
does not contain a comprehensive definition of a safeguard measure. Even under China's suggested
approach to Article 8.2 of the Safeguards Agreement, an application of the Appellate Body's
reasoning would confirm that there is no relevant U.S. safeguard measure. With respect to China's
argument that a Member may implement rebalancing measures in cases of doubt as to the existence
of a safeguard measure, this suggestion is plainly contrary to the text of Article XIX of the GATT
1994 and the Safeguards Agreement. Finally, China is mistaken that the time limits in Article 8.2 of
the Safeguards Agreement support its argument for unilateral rebalancing measures. For these
reasons, China's justification for its breach of Articles I and II of the GATT 1994 must be rejected.
90. China does not ground its ju stification on the relevant text of the WTO Agreement. Instead,
China derives its legal theory from the Appellate Body report in Indonesia – Iron or Steel Products.
As an initial matter, Indonesia – Iron or Steel Products is simply not applicable because i t did not
address a situation where a Member has not invoked Article XIX of the GATT 1994. In that dispute,
the disputing parties agreed that the Indonesian measure at issue met what, in most circumstances,
is the fundamental criterion for establishing the existence of a safeguard measure: namely, that the
Member adopting a measure invokes Article XIX of the GATT 1994 as the basis for suspending an
obligation or withdrawing or modifying a concession. In Indonesia – Iron or Steel Products, Indonesia

did notify other Members that it intended to adopt a safeguard measure, and thus did invoke
Article XIX of the GATT 1994. Here, the United States did not invoke Article XIX of the GATT 1994.
Thus, the Appellate Body's reasoning in that dispute is not relevant in this dispute.
91. Moreover, China is mistaken that the Appellate Body in Indonesia – Iron or Steel Products
established an all-encompassing definition of a safeguard measure. As Japan correctly states in its
third-party submission, the Appellate Body "did not attempt to propose a comprehensive definition
of a safeguard measure or ultimately to decide the scope of the Agreement on Safeguards." Rather,
the Appellate Body noted that "to constitute one of the 'measures provided for in Article XI X', a
measure must present certain constituent features, absent which it could not be considered a
safeguard measure." In other words, the Appellate Body's reasoning only identifies certain
"necessary" features. Importantly, the Appellate Body did not say that a measure presenting both
(to use the terms used by the Appellate Body) "constituent features" automatically or necessarily
qualifies as a safeguard measure. Instead, the Appellate Body made explicit that "whether a
particular measure constitutes a s afeguard measure for purposes of WTO law can be determined
only on a case-by-case basis."
92. Furthermore, even under China's suggested approach, there is no U.S. safeguard measure.
As discussed, China derives its legal theory from the Appellate Body's reasoning in Indonesia – Iron
or Steel Products. In that dispute, the Appellate Body identified three factors it considered relevant
for a panel to assess, among other relevant factors, in determining the existence of a safeguard
measure.
93. Regarding the first factor (domestic law), safeguard measures in the United States are
authorized by Section 201 of the Trade Act of 1974. In contrast, under U.S. domestic law, the U.S.
national security measures are authorized by Section 232 of the Trade Expansion Act of 1962.
Section 232 authorizes the President of the United States, upon receiving a report from the U.S.
Secretary of Commerce finding that an "article is being imported into the United States in such
quantities or under such circumstances as to threaten to impair the national security," to take
action that "in the judgment of the President" will "adjust the imports of the article and its derivatives
so that such imports will not threaten to impair the national security."
94. Regarding the second factor (domestic procedures), the U.S. International Trade Commission
is the only competent authority in the United States authorized to conduct safeguard investigations.
In contrast, the Bureau of Industry and Security of the U.S. Department of Commerce conducted
the investigation regarding the U.S. national security measures.
95. Finally, the application of the third factor (notification to the WTO Committee on Safeguards),
further supports the U.S. position. The United States has not notified the WTO Committee on
Safeguards of any proposed action or any safeguard measure taken because the United States did
not invoke Article XIX of the GATT 1994. Since the creation of the WTO, however, the United States
has met its obligations under Article 12 of the Safeguards Agreement.
96. Accordingly, were the Panel to assess the U.S. security measures under the Appellate Body's
reasoning as suggested by China, the Panel would conclude that the U.S. security measures do not
qualify as safeguard measures under Article XIX of the GATT 1994.
EXECUTIVE SUMMARY OF THE U.S. OPENING STATEMENT AT THE PANEL'S
VIDEOCONFERENCE WITH THE PARTIES
97. The United States initiated this dispute in response to China's measure that imposes additional
duties on and discriminates against goods originating in the United States, in violation of its
obligations in Articles I and II of the GATT 1994. By and large, China does not contest the factual
basis of the U.S. claims. Nor does China raise legal arguments to defend its measure in terms of the
failure to accord MFN treatment and the imposition of duties in excess of the bound rate in China's
Schedule.
98. Instead, China attempts to justify its measure under Article 8.2 of the Safeguards Agreement.
The key question, therefore, is whether WTO safeguards disciplines – provided in Article XIX of the
GATT 1994 and the Safeguards Agreement – apply. As the United States has explained over the

course of these proceedings, the rights and obligations under the safeguards disciplines are not
applicable here.
99. At the outset, the United States would like to emphasize a key point regarding terminology.
The United States has framed the issue in this dispute as whether, as China contends, the safeguards
disciplines apply to the U.S. essential security me asures. In contrast, China frames the issue as
whether the U.S. essential security measures are, in fact, "safeguard measures." However, China's
framing easily slides into an erroneous mode of analysis. In particular, China's approach implies that
one can look at aspects of an adopted measure, and –without any consideration of how that measure
fits into Article XIX's specific language – determine whether the measure is subject to Article XIX.
This proposition is incorrect.
100. In fact, Article XIX of the GATT 1994 does not define the term "safeguard measure." Instead,
Article 1 of the Safeguards Agreement defines "safeguard measures" as "those measures provided
for in Article XIX of GATT 1994." And what exactly does Article XIX "provide for"? Article XIX provides
for an "emergency action" that a Member is "free" to take after meeting the conditions in
Article XIX:2. In particular, Article XIX:2 provides that, before taking an action under Article XIX:1,
a Member "shall give notice in writing" and "shall afford…an opportunity to consult with it in respect
of the proposed action." Article XIX is therefore concerned with action, and the consequences and
procedures surrounding that action, rather than on a particular type of measure.
101. Indeed, the action per mitted under the emergency procedures in Article XIX is framed with
extraordinary breadth: the suspension of concessions or other obligations. In other words, any
measure that would otherwise breach any obligation under the GATT 1994 could be subject to
Article XIX, as long as the Member that proposes to adopt the measure seeks to exercise its right
under Article XIX. Thus, the text of the WTO Agreement is clear: there is no special type of measure
that, without considering the specific wording of Article XIX, can somehow be defined as a "safeguard
measure."
102. Moreover, another WTO Member cannot assert that Article XIX should have been invoked
and, on that basis, adopt a measure that is plainly inconsistent with fundamental WTO obligations.
But that is exactly the approach China asks the Panel to adopt.
103. In other words, China believes that certain U.S. national security measures are inconsistent
with U.S. obligations under the WTO Agreement notwithstanding that those measures were taken
pursuant to Article XXI of the GATT 1994. China is challenging those U.S. measures in a separate
dispute. However, instead of following the WTO's dispute settlement procedures, China decided to
impose additional duties on U.S. products that are plainly inc onsistent with its obligations under
Articles I and II of the GATT 1994.
104. Besides lacking any support in the text of the WTO Agreement, China's position is
fundamentally at odds with the basic element of the WTO Agreement that a Member is to utilize the
WTO's dispute settlement procedures if a Member believes that another Member's measure is
inconsistent with WTO rules.
I. CHINA'S ADDITIONAL DUTIES MEASURE IS INCONSISTENT WITH ITS
OBLIGATIONS UNDER ARTICLES I AND II OF THE GATT 1994
105. The United States has established the facts and demonstrated that China's measure is plainly
inconsistent with the fundamental WTO obligations to provide MFN treatment, and to abide by the
tariff concessions in a Member's Schedule, as set out respectively in Articles I and II of the
GATT 1994.
106. China has failed to rebut the U.S. prima facie case by challenging the factual or legal basis of
the U.S. claims. With respect to the U.S. claim under Article I, China does not dispute that its
measure imposes additional duties only on U.S.-origin goods for all 128 lines. Then, regarding the
U.S. claim under Article II, China does not contest that its measure results in duties in excess of its
bound rates for 123 of 128 tariff lines.
107. Further, China has not raised any i nterpretive arguments regarding the U.S. claims under
Articles I and II. Instead, China relies entirely on its flawed theory under Article 8.2 of the Safeguards

Agreement to defend its additional duties measure. This defense itself implies that the measure in
question prima facie breaches China's obligations under Articles I and II, as China appears to
acknowledge.
II. THE FUNDAMENTAL LEGAL ISSUE REGARDING CHINA'S ALLEGED
JUSTIFICATION FOR ITS ADDITIONAL DUTIES MEASURE IS WH ETHER THE
SAFEGUARDS AGREEMENT APPLIES
108. China asserts that it has implemented the measure at issue under Article 8 of the Safeguards
Agreement. Because China has presented this argument, it bears the burden to establish it. China
has failed to meet this burden because the Safeguards Agreement does not apply.
A. China has no basis for trying to avoid its burden of proof to establish that the
Safeguard Agreement applies.
109. China continues to assert that the United States somehow carries a burden with respect to a
provision it has not raised. The key point on burden of proof is that China has raised safeguards
disciplines to rebut the U.S. prima facie case of a breach of the GATT 1994. Therefore, China must
establish that (1) the safeguards disciplines are applicable and that (2) its challenged measure is
justified under the safeguards disciplines. The U.S. panel request does not assert a breach of any
WTO provision on safeguards. It is China – not the United States – that is arguing that the safeguards
disciplines are applicable, and therefore it is China's burden to establish the truth of this assertion.
B. The safeguards disciplines apply where a Member seeks to invoke its rights under
Article XIX of the GATT 1994.
110. China's attempt to justify its additional duties as a measure taken under Article 8.2 of the
Safeguards Agreement and Article XIX:3(a) of the GATT 1994 is baseless. As the United States has
explained in prior submissions, Article XIX of the GATT 1994 establishes a Member's right (bu t not
obligation) under certain conditions to deviate from its WTO obligations and take an emergency
action. A key condition precedent to the exercise of that right is that the Member has invoked
Article XIX as the legal basis for its measure by providing notice in writing and affording affected
Members an opportunity to consult. This invocation requirement is established by the ordinary
meaning of each paragraph of Article XIX, the context provided by numerous other WTO provisions,
and the object and purpo se of the GATT 1994 to provide "reciprocal and mutually advantageous"
arrangements directed to the "substantial reduction" of tariffs. This requirement is confirmed by the
negotiating history of Article XIX and the Safeguards Agreement. Thus, without invoc ation, a
Member cannot and has not taken action pursuant to Article XIX and the safeguards disciplines do
not apply.
111. Article XIX:1 provides that if certain conditions are met, a Member "shall be free" "to suspend
an obligation or to withdraw or modif y a concession." Thus, when a Member believes that the
conditions in Article XIX:1(a) are met, the Member has the discretion to invoke the right reserved
to it under Article XIX. Under Article XIX:2, a Member's ability to take action pursuant to Article XIX:1
is conditioned on invocation through notice to other Members of a proposed action under Article XIX.
Without such notice, a Member is not seeking legal authority pursuant to Article XIX to suspend an
obligation or to withdraw or modify a concession and may not take the proposed action "in
accordance with" that provision.
112. The third sentence of Article XIX:2 also supports the interpretation that invocation is a
condition precedent for action under Article XIX. The third sentence of Article XIX:2 pro vides a
limited exception to the consultation requirement. Notably, this exception does not permit Members
to take action without providing "notice." This exception to the consultation requirement – but not
the notice requirement – establishes that Article XIX requires a Member to invoke through notice its
right to take a safeguard action as a condition precedent to action under that provision.
113. The terms of Article XIX:3 of the GATT 1994 also show that invocation is a precondition for a
Member's exercise of its right to take action under Article XIX and to the application of safeguards
rules to that action. Under this provision, if the consultations envisioned by Article XIX:2 fail to
address the concerns of affected Members, affected Members can suspen d substantially equivalent
concessions or other obligations. These envisioned consultations are triggered by the invocation and

notice provision under Article XIX:2, underscoring that invocation through notice is a condition
precedent to action under Article XIX.
114. Numerous provisions of the GATT 1994 and other WTO covered agreements contemplate a
Member affirmatively exercising the right to modify or withdraw a tariff concession or to suspend an
obligation through invocation. In addition, rebalancing provisions in other WTO agreements reflect
a similar structure by which a Member may invoke the right to modify or withdraw a tariff concession
or to suspend an obligation. These provisions of the GATT 1994 and other WTO agreements are
important context for interpreting Article XIX.
115. The Safeguards Agreement, which provides context for Article XIX of the GATT 1994, also
supports that invocation of Article XIX through written notice is a condition precedent to a Member's
exercise of its right to take act ion under Article XIX. Both Article 1 and Article 11.1(a) refer to
Article XIX in its entirety in describing, respectively, the scope of application for the rules established
in the Safeguards Agreement and when a Member may take or seek any emergency action on
imports of particular products as set forth in Article XIX of the GATT 1994. By referring to Article XIX
in its entirety – including the requirement of invocation through notice set forth at Article XIX:2 –
Article 1 and Article 11.1(a) of the Safeguards Agreement support that invocation through written
notice is a condition precedent to a Member's exercise of its right to take action under Article XIX
and the application of safeguards rules to that action.
116. Article 11.1(c) of the S afeguards Agreement also supports that invocation of Article XIX is a
necessary precondition to a Member's exercise of its right to take action under Article XIX and the
application of safeguards rules to that action. This provision states in relevant part that the
Safeguards Agreement "does not apply to measures sought, taken or maintained by a Member
pursuant to provisions of GATT 1994 other than Article XIX." This provision is context which confirms
that the Member adopting a measure decides what type of mechanisms for otherwise
GATT-inconsistent measures are applicable.
117. China points to "[t]he relationship between Article XIX:2 of GATT 1994 and Article 12 of the
Safeguard[s] Agreement" as undermining the U.S. position that the requirement to give no tice in
Article XIX is different from the notification requirements in Article 12. China misperceives the
relationship between Article 12 and Article XIX. In contrast to Article XIX's requirement for
invocation, Article 12 identifies certain notification requirements that apply once Article XIX has been
invoked. Article 12 sets forth procedural requirements to expand the scope of information a Member
provides to other Members after it has made the decision to invoke WTO safeguards provisions.
118. China also argues that the counter -notification provision in Article 12.8 of the Safeguards
Agreement "directly contradicts" the U.S. interpretation that invocation is a condition precedent for
taking an action under Article XIX. Article 12.8 states "[a]ny Member may notify the Committee on
Safeguards of all laws, regulations, administrative 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. " As the words "dealt with in this Agreement" and "required
by this Agreement to make such notifications" make clear, this provision relates only to notifications
that Members are required to make by the Safeguards Agreement. And to recall, the Safeguards
Agreement applies to "safeguard measures", defined as those measures provided for in Article XIX.
Nothing in the text of Article 12.8 indicates that a Member may invoke another Member's Article XIX
rights through a counter-notification.
C. Here, the Unit ed States did not invoke Article XIX and therefore the Safeguards
Agreement does not apply.
119. Here, the record objectively establishes that the United States has not invoked Article XIX.
Further, the United States has invoked a WTO right to take a measure, namely under Article XXI, a
completely different provision of the GATT 1994. China does not dispute these key facts.
Nonetheless, China claims that safeguards disciplines are applicable, arguing that safeguards
disciplines apply when a measure has the "constituent features" identified in the Appellate Body
report in Indonesia – Iron or Steel Products . China continues to fail to recognize the unusual
circumstance addressed by that report and that the report did not purport to identify all of the
conditions precedent for application of the safeguards disciplines. Thus, the reasoning in that report
is not applicable to the issue in this dispute.

D. China's approach cannot be sustained in light of the relevant context of the GATT
1994 and the DSU.
120. China's approach also cannot be sustained under an interpretation in light of the relevant
context of the GATT 1994 and the DSU. Pursuant to DSU Articles 11 and 3.2, panels are to interpret
and apply relevant provisions of WTO covered agreements in accord ance with the customary rules
of interpretation of public international law. Those rules are reflected in Articles 31 to 33 of the
Vienna Convention on the Law of Treaties (Vienna Convention). Article 31(1) provides that a treaty
shall be interpreted in ac cordance with the ordinary meaning of the terms of the treaty in their
context and in light of the treaty's object and purpose.
121. Thus, other provisions of the GATT 1994 are important context for interpreting Article XIX of
the GATT 1994. Article XXIII of the GATT 1994 establishes procedures for a Member seeking to
address, among other things, perceived violations of the GATT 1994. Accordingly, if a Member
believes that another Member's measure is inconsistent with an obligation in the GATT 1994,
Article XXIII of the GATT 1994 makes clear that the method to address such a concern is through
recourse to the procedures in Article XXIII.
122. Further, as the WTO Agreement is a single undertaking, the DSU is relevant context for
interpreting the terms of GATT 1994 Article XIX and the Safeguards Agreement within the meaning
of Vienna Convention Article 31. In particular, the DSU establishes detailed procedures for a Member
seeking to address perceived violations of obligations in the WTO covered agreements.
123. Here, China's approach directly conflicts with DSU Article 23 (Strengthening of the Multilateral
System). If a Member believes that another Member's measure is inconsistent with a WTO obligation,
DSU Article 23 makes clear that the method to address suc h a concern is through recourse to the
procedures of the DSU.
124. China's approach – that a Member can deem another Member's measure a safeguard measure
and, on that basis, adopt retaliatory measures – is plainly contrary to the text of Article XIX and the
Safeguards Agreement considered in light of the relevant context of GATT 1994 Article XXIII and
DSU Article 23.
E. Under China's approach, any measure that breaches a Member's GATT obligations
can be construed as a safeguard measure and give rise to a "right" to "rebalancing"
for another Member. Such an argument risks undermining the legitimacy of the
WTO and its dispute settlement system.
125. China's proposed approach risks undermining the legitimacy of the WTO and its dispute
settlement system. To recall, China argues that it has the right to take retaliatory measures because
certain U.S. Section 232 measures allegedly "suspend a GATT obligation or withdraw or modify a
GATT concession." China adds an argument that the U.S. Section 232 measures present the second
"constituent feature" because, in its view, the Section 232 measures are "'designed to prevent or
remedy serious injury' to the U.S. steel and aluminum industries." This second alleged feature,
however, provides no meaningful limitation on Chi na's position on a unilateral right to retaliate for
an alleged breach of the GATT 1994. Almost any trade-related measure will have some effects with
respect to domestic industries. And, it is China itself that is attributing such a "design" to the U.S.
measures.
126. As the United States has explained, if a Member does not invoke Article XIX, the Member has
decided not to act upon the right to seek permission under Article XIX. Accordingly, if a Member
imposed duties on a non-MFN basis or in excess of its tariff bindings and did not invoke Article XIX,
then the Member would be in breach of its GATT obligations, and other Members could seek to
impose countermeasures following recourse to multilateral dispute settlement rules. That is how the
system is designed to work, as evident from the DSU.
127. In fact, China has brought a separate dispute challenging the U.S. Section 232 measures in
the WTO. However, rather than waiting for a decision in that dispute, China unilaterally decided that
the United States is taking action under Article XIX, unilaterally decided that the U.S. measures are
inconsistent with the safeguards disciplines, and unilaterally retaliated against those measures.

128. Under China's proposed approach, any Member could determine, for itself, that almost any
measure was an action taken under Article XIX, and adopt retaliatory measures as so -called
"rebalancing" measures.
III. EVEN IF THE SAFEGUARDS AGREEMENT WAS APP LICABLE, CHINA HAS NO
BASIS FOR ASSERTING THAT ITS ADDITIONAL DUTIES MEASURE IS
AUTHORIZED BY ARTICLE 8.2 OF THE SAFEGUARDS AGREEMENT BECAUSE
THE UNITED STATES HAS NOT ADOPTED A "SAFEGUARD MEASURE"
129. As the United States has just explained, the Safeguar ds Agreement does not apply because
the United States has not invoked its right to apply a safeguard. However, even if the Panel were to
apply safeguards disciplines, China's justification would fail. Contrary to China's claim, a measure
taken pursuant to Article XXI cannot fall within the scope of the Safeguards Agreement, and this
interpretation is clearly supported by the text of the Safeguards Agreement.
130. The United States recalls that the Safeguards Agreement only applies to measures taken
pursuant to Article XIX of the GATT, as confirmed in Article 11.1(c). In relevant part, Article 11.1(c)
of the Safeguards Agreement provides that the Safeguards Agreement "does not apply to measures
sought, taken or maintained by a Member pursuant to provisions of GATT 1994 other than
Article XIX."
131. The ordinary meaning establishes that Article 11.1(c) is triggered – and the Safeguards
Agreement "does not apply" – when a Member acts (by seeking, taking, or maintaining a measure)
pursuant to a provision of t he GATT 1994 other than Article XIX. The U.S. Section 232 measures
cited by China were sought, taken or maintained pursuant to Article XXI of the GATT 1994 – which
is a provision "other than Article XIX"; accordingly, by the plain text of the Safeguards Ag reement,
the Section 232 measures cited by China simply do not fall within the scope of the Safeguards
Agreement. Therefore, no "right" of "rebalancing" can arise for another Member, including China.
132. Therefore, the exercise of the right – through invocation – to take action under Article XIX is
a precondition not only for a measure to constitute a safeguard but for another Member to implement
a rebalancing measure under Article 8.2. Because the United States has not sought to exercise a
right to exc eed its tariff bindings through GATT 1994 Article XIX, no consequent "right to
rebalancing" can arise for another Member.
EXECUTIVE SUMMARY OF THE U.S. CLOSING STATEMENT AT THE PANEL'S
VIDEOCONFERENCE WITH THE PARTIES
133. The United States will close by elaborating on three key issues. First, as the United States has
explained, the U.S. interpretation that invocation is a condition precedent to a Member's exercise of
its right under Article XIX is supported by Article 11.1(c) of the Safeguards Agreement . This
provision confirms that the Safeguards Agreement does not apply where a Member seeks, takes, or
maintains a measure pursuant to a provision of the GATT 1994 other than Article XIX, such as
Article XXI. China has clearly avoided taking a position on whe ther Article 11.1(c) would allow for
safeguards disciplines to apply in a situation where a Member has "sought, taken or maintained" a
measure pursuant to Article XXI. China avoids this issue because the United States has clearly
invoked Article XXI with respect to the Section 232 measures – indicating that it is taking or at the
very least seeking to take the measures pursuant to Article XXI – meaning that the Safeguards
Agreement, including Article 8.2, does not apply to China's additional duties measure.
134. With regard to the point on the exercise of a right under Article XIX of the GATT 1994,
the Panel has asked whether characterizing the application of a safeguard as the exercise of a "right"
means that it is solely for a Member to decide to "trigger the applicability of the WTO rules on
safeguards to its measure." As an initial matter, the United States would note that characterizing
the invocation of the WTO safeguards provisions as a right flows directly from the text of Article XIX.
To recall, Art icle XIX states that a Member "shall be free" to take a safeguard action, subject to
certain conditions. This is a language of rights, as opposed to language of obligations.
135. Turning to Article XIX, as noted, any Member has the right to attempt to e mploy Article XIX
to seek to temporarily withdraw, modify, or suspend a GATT 1994 obligation. This decision on
whether to invoke Article XIX does not, as China argues, somehow unilaterally determine whether

GATT rules apply to the measure that the Member s eeks to take. To the contrary, any measure
involved in a safeguards situation is already disciplined by GATT rules. In fact, the measure is
inconsistent with an obligation set out in the GATT 1994. Further, the Member wishing to adopt the
measure acknowled ges this inconsistency by proposing to withdraw, modify, or suspend the
obligation through its invocation of Article XIX. Thus, with or without an invocation of the right to
try to temporarily withdraw, modify, or suspend a GATT obligation, the measure sought to be taken
is, by definition, inconsistent with GATT obligations.
136. China of course asserts it has a fundamental right to retaliate – which China labels as
"rebalancing" – whenever China unilaterally decides that an alleged breach of the GATT 1994 is a
"safeguard measure". But what China misses is that it is the initial exercise of a right by a Member
seeking to adopt a safeguard that i n turn leads to the consultation requirements and then triggers
the right of the exporting Member to rebalance in the event the two Members are not able to reach
agreement in the consultations.
137. We will now turn to the systemic implication of China's position that a Member may unilaterally
decide that another Member's measure is an action taken under Article XIX, may unilaterally decide
that that measure is inconsistent with safeguards disciplines, and may immediately and unilaterally
retaliate against that measure. Under China's approach that the safeguards disciplines apply to any
measure that presents two "constituent features", almost any measure that is alleged to be WTO -
inconsistent could fall within the safeguards disciplines and allow fo r such retaliation. China's
approach would fundamentally reverse the basic rule, as provided in the GATT 1994 and the DSU,
that retaliatory measures, if appropriate, should be adopted after dispute settlement. The reversal
of this basic rule would amount t o a fundamental change in the world trading system since the
adoption of the GATT 1994 over 70 years ago. This reversal would be inconsistent with the text of
WTO Agreement, and would fundamentally undermine the WTO system.
EXECUTIVE SUMMARY OF U.S. RESPONSES TO THE PANEL'S QUESTIONS AFTER THE
PANEL'S VIDEOCONFERENCE WITH THE PARTIES
Excerpt from U.S. Response to the Panel Question 73
138. The ordinary meaning of the terms in Article 11.1(c) can be understood as "measures [that a
Member has] tried to do, succeeded in doing or caused to continue in accordance with provisions of
the GATT 1994 other than Article XIX." The ordinary meaning of these terms establishes that
Article 11.1(c) is triggered – and the Safeguards Agreement "does not apply" – when a Member acts
(by seeking, taking or maintaining a measure) pursuant to a provision of the GATT 1994 other than
Article XIX. This result is confirmed by the negotiating history of the Safeguards Agreement.
139. In particular, although early draft text of the Saf eguards Agreement would have permitted
Members to take safeguard measures under Article XIX "only in a situation in which other GATT
provisions do not provide remedies", this approach was abandoned by July 1990, when the draft
text was changed to provide t hat the agreement "do[es] not prejudice" a Member's ability to take
action pursuant to provisions of the GATT 1994 other than Article XIX. As the July 1990 draft
Agreement on Safeguards provided in relevant part:
The provisions of paragraph 1 [defining a s afeguard measure] above do not prejudice
the rights and obligations of contracting parties regarding trade -restrictive measures
taken in conformity with specific provisions of the General Agreement other than
Article XIX, protocols, and agreements and arra ngements negotiated under the
auspices of GATT.
140. Although the phrasing and placement of this provision changed as the negotiations went along,
subsequent drafts of the Safeguards Agreement continued to reflect negotiators' underlying intent
to prevent the terms of the Safeguards Agreement from prejudicing Members' rights under other
GATT provisions. As the October 1990 draft text stated in relevant part:
No trade-restrictive measure shall be sought or taken by a contracting party unless it
conforms wit h the provisions of Article XIX as interpreted by the provisions of this
agreement, or is consistent with other provisions of the General Agreement, or protocols

and agreements or arrangements concluded within the framework of the General
Agreement.
141. With this text, the October 1990 draft continues to make clear – like the July 1990 draft –
that the availability of Article XIX as a release from obligations does not constrain a Member's ability
to take action pursuant to other provisions of the GATT 1994. So much is clear based on the use of
the word "or" in the draft text quoted above, which confirms that Members could seek or take trade-
restrictive measures that were either in conformity with Article XIX or consistent with other
provisions of the General Agreement (including Article XXI).
142. The same meaning is clear in the December 1991 draft Safeguards Agreement, in which the
text that became Article 11.1(c) was moved, rephrased, and divided into parts, to read in relevant
part:
(c) Measures sought, taken or maintained by a contracting party pursuant to other
provisions of the General Agreement, or protocols and agreements or arrangements
concluded within the framework of the General Agreement are not included in the scope
of this agreement.
143. Subparagraph (c) of the December 1991 draft is similar to Article 11.1(c), particularly its
reference to measures "sought, taken or maintained . . . pursuant to" other provisions of the General
Agreement. By referring to measures sought, taken, or maintained " pursuant to" other provisions
of the General Agreement – a change from the October 1990 draft's reference to measures
"consistent with" other provisions of the General Agreement, and the July 1990 draft's reference to
measures "taken in conformity with" sp ecific provisions of the General Agreement – the
December 1991 draft Safeguards Agreement underscores that the Safeguards Agreement does not
apply to measures that a Member has tried to do, succeeded in doing or caused to continue in
accordance with provisions of the GATT 1994 other than Article XIX.
144. In the final text of the Safeguards Agreement, this text was again rephrased to emphasize
this point. Specifically, the December 1991 draft language stating that measures sought, taken, or
maintained pursuant to other provisions of the GATT 1994 "are not included in the scope of" the
Safeguards Agreement was replaced with a more definite statement that the Safeguards Agreement
"does not apply" to such measures. By stating that the Agreement "does not apply" to such
measures, this final text makes even clearer that a Member's ability to seek, take, or maintain
safeguard measures does not constrain a Member's ability to take such action pursuant to other
provisions of the GATT 1994, such as Article XXI. And that where a Member has sought, taken or
maintained action pursuant to an "other provision of the GATT 1994," as the United States has
explained, the Safeguards Agreement "does not apply."
Excerpt from U.S. Response to the Panel Question 89
145. A Member's e xercise of the right to take emergency action by invoking Article XIX of the
GATT 1994 is conceptually distinct from the specific notification requirements provided in the
Safeguards Agreement. Furthermore, while Article XIX invocation through notice and A rticle 12
notifications are conceptually distinct, a Member's notification under Article 12 may serve to inform
other Members of a decision to invoke Article XIX.
146. In this dispute, however, the conceptual distinction does not appear relevant, because it is
undisputed that the United States did not invoke its right under Article XIX, nor – since the
Safeguards Agreement is inapplicable – did the United States provide any of the specific notifications
set out in the Safeguard Agreement.
147. For context, the United States notes that the distinction might be relevant in a situation where,
for example, a Member invoked Article XIX by providing the notice in writing under Article XIX:2,
but did not meet all of the notification requirements under Article 12 of the Safeguards Agreement.
In that hypothetical situation, the Safeguards Agreement would apply, but another Member might
raise an issue with respect to compliance with a specific aspect of Article 12.

ANNEX B-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA
I. Introduction
1. This dispute concerns China's measures in response to the U.S. tariffs on imported steel and
aluminum products which in fact constitutes a safeguard measure. Contrary to the claims o f
the United States, China 's measures were taken pursuant to and are consistent with
Article XIX:3 of the General Agreement on Tariffs and Trade 1994 (the "GATT 1994") and
Article 8.2 of the WTO Agreement on Safeguards (the "Safeguard Agreement").
II. Measures at issue
2. On March 23, 2018, China issued the Ministry of Commerce Notice on Publicly Soliciting
Opinions on U.S. Imported Steel and Aluminum Products 232 Measures and Chinese
Countermeasures (the "Opinions Notice"). The Opinions Notice specifically stated that China's
measures were in response to the U.S. tariffs on imported steel and aluminum products under
the Section 232 measures, which "in fact constitutes a safeguard measure". The intende d
suspension of concessions and other obligations in China's measures are based on, inter alia,
the relevant provisions of the Safeguard Agreement, and are "substantially equivalent" to
balance the damage of interests to China caused by the U.S. Section 232 measures.1
3. On March 26, 2018, China notified the WTO Committee on Safeguard that it formally requested
consultations with the United States pursuant to Article 12.3 and 8.1 of the Safeguard
Agreement and Article XIX:2 of GATT 1994 with respect to th e United States' safeguard
measures on steel and aluminum, respectively. In these requests, China stated that it takes
the view that the measure of the United States "is safeguard measure although it's in the
name of national security measure."2
4. On March 29, 2018, pursuant to Article 12.5 of the Safeguard Agreement, China notified the
Council for Trade in Goods of proposed suspension of concessions and other obligations
referred to in Article 8.2 of the Safeguard Agreement. In this notification, China made it clear
that it takes the view that the Section 232 measures on steel and aluminum products of the
United States are safeguard measures although it's in the name of national security. It was
further clarified that the proposed suspension of substanti ally equivalent concessions and
other obligations by China was pursuant to Article XIX:3 of GATT 1994 and Article 8.2 of the
Safeguard Agreement.3
5. On April 1, 2018, China issued the State Council Customs Tariff Commission Notice on
Suspension of Duty Concession Obligations on Some Imported Products Originating from the
United States (the "Implementation Notice"). The Implementation Notice suspended tariff
concession obligations on some imported products originating from the United States, effective
on April 2, 2018, by imposing additional import tariff rates of 15% or 25% respectively on 128
tariff lines. It is stated in the Implementation Notice that the additional import tariff rates were
to balance the losses to China caused by the U.S. Section 232 M easures on imported steel
and aluminum products.4
6. China's "other additional duties" raised by the United States are not included by the United
States in its panel request, are not part of or related to China 's measures at issue, and they
do not form part of "the matter referred to the DSB" and fall outside of the terms of reference
of this Panel. In addition, the "other additional duties" were imposed by China unrelated to
China's measures at issue, and at a time after the imposition of the additional duties as result
of China's measures at issue. Therefore, the Panel does not need to and should not consider

1 China's First Written Submission, para. 8.
2 China's First Written Submission, para. 9.
3 China's First Written Submission, para. 10.
4 China's First Written Submission, para. 11.

the "other additional duties" in the Panel's assessment of the consistency of China's measures
at issue with the Articles II:1(a) and II:1(b) of the GATT 1994.5
III. The Claim of The United States under Article I And II Of GATT 1994 Failed to Meet
the Requirements of Article 6.2 of the DSU and Are Not Within the Panel's Terms of
Reference
7. Article 6.2 of the DSU requires that the panel request of the complainant provide a "brief
summary of the legal basis of the complaint" that is sufficient to "present the problem clearly",
and thus notify the parties "the nature of its case", and the Appellate Body has explained that
a panel request must "plainly connect the challenged measure(s) with the provision(s) of the
covered agreements claimed to have been infringed". 6 A brief summary of the legal basis of
the complaint must "aim to explain succinctly how or why the measure at issue is considered
by the complaining Member to be violating the WTO obligation in question". Whether "how or
why" has been succinctly explained would necessarily depend on the nature of the obligation
in the covered agreement claimed to have been violated.7
8. China's measures at issue are not stand-alone measures. China, as well as certain other WTO
Members, believe that the U.S. measures constitute safeguard measures as provided for in
Article XIX of the GATT 1994, based on solid factual and legal analysis of the specific features
of the U.S. measures in relation to the WTO safeguards provisions. Pursuant to Article XIX:3
of the GATT 1994 and Article 8 of the Safeguard Agreement, China took the measures at issue
in this dispute to act in response to the U.S. safeguard measures, in order to restore the
substantially equivalent level of concessions under GATT 1994 between China and the United
States.8
9. The legal basis has been expressly specified in China 's measures at issue, and has been
notified by China to the WTO for the knowledge of all the WTO Members, including the United
States. Therefore, the United States was well aware that China's measures at issue were
plainly taken pursuant to Article XIX:3 of GATT 1994 and Article 8.2 of the Safeguard
Agreement.9 The United States does not have the right to challenge China 's measures in a
way that totally disregard its correct nature and legal basis. However, in its panel request, the
United States has challenged China 's measure as a stand-alone measure, and the U nited
States claimed China's measures at issue inconsistent with Article I and II of the GATT 1994
without regard to Article XIX of the GATT 1994 or the Safeguard Agreement at all. The failure
of the United States to invoke Article XIX of GATT 1994 and the Safeguard Agreement in its
panel request is a fundamental defect, which results its claim under Article I and II of GATT
1994 not within the Panel's terms of reference.10
10. Article XIX and the Safeguard Agreement are not exceptions or mere "affirmative defense"
available to respondents for justification of its violation of other GATT 1994 obligations, such
as Article I and II of the GATT 1994.11 The safeguard regime under Article XIX of GATT 1994
and the Safeguard Agreement shares fundamental nature and structure with the transitional
safeguards regime under Article 6 of the Agreement on Textiles and Clothing (the "ATC"). The
legal status of the transitional safeguard mechanism under Article 6 of ATC has been examined
by the Panel and the Appellate Body in US-Wool Shirts and Blouses, and Article 6 of ATC was
not found to be a limited exception or an affirmative defense. Similar to Article 6 of ATC ,
Article XIX of GATT 1994 and Safeguard Agreement explicitly establish positive obligations for
Members applying safeguard measures, as well as for Members affected by such measures in
taking re-balancing measures. Therefore, they are not mere "affirmative defense" available to
respondents in the dispute cases. 12 The relationship between Article XIX of GATT 1994 and

5 China's First Written Submission, para. 156, China's response to Panel's question 17.
6 China's oral statement in the Panel's first substantive meeting with the parties, para 14, quoting
Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 162,
7 China's oral statement in the Panel's first substantive meeting with the parties, para 17, quoting
Appellate Body Report, EC – Selected Customs Matters, para. 130.
8 China's oral statement in the Panel's first substantive meeting with the parties, paras. 2-5.
9 China's First Written Submission, para. 13.
10 China's oral statement in the Panel's first substantive meeting with the parties, paras. 7 and 8,
China's First Written Submission para. 17.
11 China's First Written Submission, para. 15.
12 China's First Written Submission, paras. 23-30.

the Safeguard Agreement and Article I and II of GATT 1994 is not dependent on and does not
change because of the way the United States chose to frame its claims in its Panel Request in
this dispute.13
11. When measures at issue in dispute are plainly taken pursuant to Article XIX of GATT 1994 and
the Safeguard Agreement, the relevant concessions and obligations under other GATT 1994
provisions, such as those under Article I and II of GATT 1994, are necessarily suspended,
withdrawn or modified, and therefore are not eligible to be assessed independent from the
safeguard provisions. 14 Measures taken pursuant to Article XIX of GATT 1994 and the
Safeguard Agreement would necessarily alter the scope of the relevant concessions or
obligations established by other GATT 1994 provisions. Such relationship suggests that the
safeguard measures/rebalancing measures are not first in violation of the original obligations
under other GATT provisions, and then being justified by Article XIX of GATT 1994 and the
Safeguard Agreement. They do not violate the obligations under other GATT provisions in the
first place, if taken pursuant to Article XIX of GATT 1994 a nd the Safeguard Agreement.15 In
such a situation, a breach of Article I and Article II of the GATT 1994 cannot be claimed or
established based on these provisions alone, without taking into account the suspensions of
concessions or obligations pursuant t o Article XIX of the GATT 1994 and the Safeguard
Agreement.16
12. When measures at issue in dispute are plainly taken pursuant to Article XIX of GATT 1994 and
the Safeguard Agreement, the "legal basis of the complaint" and "problem" that should be
presented clearly in the panel request, as provided for in Article 6.2 of the DSU, are not
violation of obligations under Article I and II of the GATT 1994 as stand-alone obligations, but
whether the "suspension", "withdrawal" or "modification" of obligations und er these GATT
provisions by the measures taken pursuant to the WTO safeguards disciplines are consistent
with such disciplines.17
13. The legal relationship between these provisions stipulates that measures taken pursuant to
the WTO safeguard provisions, such as China's measures at issue in this dispute, are not first
in violation of Article I and II of the GATT 1994, and then could be justified under the WTO
safeguard provisions. China's measures simply would not violate Article I and II of the GATT
1994 in the absence of the non -applicability of or inconsistency with the WTO safeguard
provisions by the measures.
14. On the face of the Panel Request, the United States is claiming measures explicitly taken
pursuant to Article 8.2 of the Safeguards Agreement is directly in violation of Article I and II
of the GATT 1994, because China's measures are deemed by the United States not to be taken
pursuant to Article 8.2 of the Safeguards Agreement.18 Therefore, it is apparent that the U.S.
claims in its panel request in relation to Article I and II of GATT 1994 are inextricably linked
to its consideration that Article XIX of GATT 1994 and the Safeguards Agreement do not apply
in this dispute, which clearly forms an important and integral part of the "problem" the United
States considered, and an important and integral part of "the nature of the case" of the United
States, and therefore an important and integral part of the "legal basis" of the complaint of
the United States under Article I and II of the GATT 1994. By failing to include this integral
part of its claim on the violation of Article I and II of the GATT 1994 in its panel request, the
United States could not meet the obligation incumbent upon the complainant to "provide a
brief summary of the legal basis of the complaint sufficient to present the problem clearly"
under Article 6.2 of the DSU. 19 China and third parties, by reading the U.S. Panel Request,
cannot ascertain the legal basis of the United States how China's measures taken pursuant to
safeguard rebalancing provisions would violate Articles I and II of the GATT 1994. Therefore,

13 China's Second Written Submission, paras. 15-18 and 26.
14 China's First Written Submission, paras. 31-36.
15 China's First Written Submission, para. 41.
16 China's Oral Statement in the Panel's first substantive meeting with the parties, para 22,
17 China's oral statement in the Panel's first substantive meeting with the parties, para 25,
18 China's Second Written Submission, paras. 30-32 and 38.
19 China's oral statement in the Panel's first substantive meeting with the parties, para. 30; China's
Second Written Submission, paras. 44-49,

the U.S. Panel Request fails to satisfy the due process purpose requirement under Article 6.2
of the DSU.20
15. For a challenge of China's measure, which is explicitly and unambiguously taken pursuant to
Article XIX:3 of the GATT 1994 and Article 8 of the Safeguard Agreement, in order to "plainly
connect the challenged measure(s) with the provision(s) of the covered agreements claimed
to have been infringed", a challenge ca nnot be simply based on Article I and II of the
GATT 1994. Otherwise, such a challenge would be ignoring the nature of the obligations under
Article I and II of the GATT 1994, in light of their relationship with Article XIX of the GATT 1994
and the Safeguard Agreement. The Panel Request of the United States does not appropriately
"connect" the challenged measure with Article I and II of the GATT 1994, and evades the
"problem" and "the nature of the case", and therefore fails to provide "brief summary of the
legal basis of the complaint" as required by Article 6.2 of the DSU.21
16. The analytical approach and findings by the Appellate Body in EC – Tariff Preferences case
provide useful guidance in the analysis of the U.S. claim in the current dispute. In that dispute,
the Appellate Body found that if the complainant failed to raise the enabling clause in the
panel request, its claim of inconsistency with Article I:1 of the GATT 1994 is not a proper claim
before the Panel, because the panel request "would not convey the 'legal basis of the complaint
sufficient to present the problem clearly'".22
17. In EC – Tariff Preferences. the Appellate Body found that even though the complainant just
wanted to allege inconsistency with one particular provision of t he GATT 1994, if the
complainant also seeks to argue the measure is not justified under another WTO provision
which is the legal basis of the measure, allegation in the Panel Request under the former
provision alone might be "insufficient for the complainant in WTO dispute settlement", and the
complainant "must allege more than mere inconsistency with" the former provision. The
Appellate Body found that a complaining party "must, in its request for the establishment of
a panel" to identify the other provisi on forming the legal basis of the measure "thereby
'notif[y] the parties and third parties of the nature of [its] case'". The WTO jurisprudence
clearly shows that the complainant does not have a total freedom to decide not to include a
provision in its Pan el Request simply because it chooses not to make a claim under such
provision. Whether the inclusion of such a provision in the Panel Request is required by
Article 6.2 of the DSU depends on its legal relationship with the provisions under which claims
are made and the facts of a particular dispute, and subject to the scrutiny of a WTO Panel. 23
Therefore, when an inextricable link for a claim is missing from the Panel Request, a brief
summary of the legal basis of the complaint cannot be deemed as properly provided, and the
problem cannot be deemed as clearly presented, and the legal requirements of Article 6.2 of
the DSU are not satisfied.24
18. There are overwhelming similarities of the relevant facts in EC – Tariff Preferences case and
the current dispute.
19. In EC – Tariff Preferences, every measure undertaken pursuant to the Enabling Clause would
necessarily be inconsistent with Article I, if assessed on that basis alone, but it would be
exempted from compliance with Article I if it meets the requirements of the Enabling Clause.
In the current dispute, every rebalancing measures taken by Members pursuant to
Article XIX:3 of GATT 1994 and Article 8.2 of the Safeguard Agreement would be in violation
of Article I of GATT 1994, or be in violation of Artic le II of GATT 1994, if assessed based on
Articles I and II alone, but would not be in violation of Article I or Article II if it meets the
requirements in Article XIX:3 and Article 8.2.25

20 China's oral statement in the Panel's second substantive meeting with the parties, para. 20.
21 China's oral statement in the Panel's first substantive meeting with the parties, para 27,
22 China's First Written Submission, para. 47, China's Second Written Submission, para. 57, quoting
Appellate Body Report, EC – Tariff Preferences,, para. 110.
23 China's First Written Submission, para. 50, quoting Appellate Body Report, EC – Tariff Preferences,
para. 110 and 113,
24 China's oral statement in the Panel's second substantive meeting with the parties, para 21, quoting
Appellate Body Report, EC – Tariff Preferences, para. 118.
25 China's First Written Submission, paras. 47 and 48,

20. In EC – Tariff Preferences, the EC measure at issue "is plainly taken pursuant to the Enabling
Clause". In the current dispute, China's measures at issue are plainly taken pursuant to
Article XIX:3 of GATT 1994 and Article 8.2 of the Safeguard Agreement, which is well known
to the United States.26
21. In EC – Tariff Preferences, the Enabling Clause sets forth extensive requirements for the
Members. In the current dispute, extensive requirements are set forth in Article XIX of
GATT 1994 and Article 8.2 of the Safeguard Agreement in relation to the rebalancing measures
taken by Members, both substantively and procedurally.27
22. In the EC – Tariff Preferences, based on these elements considered, the Appellate Body found
that, since the claim by the complainant of inconsistency with Article I is inextricably linked
with its argument that the measures do not satisfy the conditions in the Enabling Clause, the
complainant was required to, inter alia, identify, in its request for the establishment of a panel,
which obligations in the Enabling Clause the EC measures are alleged to have contravened.
Similarly, in the current dispute, the claim by the United States of inconsistency with Article I
and II with respect to China's measures is inextricably linked with its argument that the
measures do not satisfy the conditions in the Safeguard disciplines, and therefore the United
States is required to identify in its panel request how China 's measures do not satisfy the
Safeguard disciplines.28 The United States failed to do so.
23. The United States is not entitled to leave the safeguard provisions out of its panel request
simply because it does not agree the measure can be justified under the provisions. 29 In
addition, as the legal basis of China 's measures, the WTO safeguard provisions are clearly
relevant to China 's measures at issue, 30 and the relevance is to be determined based on
objective examination by the Panel, not by subjective consideration by a Member.31
24. The analytical approach and findings made by the Appellate Body in EC – Tariff Preferences
case apply to the analysis in the present dispute regardless of the difference in the legal
characterization be tween the Enabling Clause, which the Appellate Body found to be a
"defence", and Articles XIX of the GATT 1994 and Article 8.2 of the Safeguards Agreement
which are not mere "defences". The analysis and determination by the Appellate Body in EC
– Tariff Preferences case was not because the Enabling Clause is a "defence", but rather
despite the Enabling Clause is a "defence". 32 In addition, the analytical approach applied by
the Appellate Body in EC – Tariff Preferences case is a general approach t hat would apply in
all disputes where issues concerning Article 6.2 of the DSU are raised, and does not only apply
to disputes concerning Enabling Clause.33
25. The non-applicability of the WTO safeguard provisions on China's measures at issue is an
extricable link to plainly connect China's measures with a claim of violation of Article I and II
of the GATT 1994, absent of which a proper claim to the satisfaction of the requirements of
Article 6.2 of the DSU cannot be made before the Panel. Therefore, the non-applicability of
the WTO safeguard provisions is an integral part of the legal basis of the claim, not itself an
argument.34
26. In the analysis of China's preliminary ruling request, the threshold issue of whether the Panel
Request meets the requirements of Article 6.2 of the DSU and the substantive issue of whether
a properly filed claim can be substantiated should not be confused. Panel should not first
analyze and determine on the substantive issue that whether the WTO safeguard disciplines
indeed apply to China's measures at issue, even though such an issue is not included in the
U.S. Panel Request at all, either as a claim or as part of the "legal basis" of a claim, and then
based on such substantive determination, turns back to its analysis and determination on the

26 China's First Written Submission, paras. 49 and 50,
27 China's First Written Submission, paras. 51 and 52,
28 China's First Written Submission, paras. 53 and 54,
29 China's First Written Submission, paras. 56 and 57, quoting Appellate Body Report, Brazil – Taxation,
para 5.366.
30 China's oral statement in the Panel's first substantive meeting with the parties, para 32,
31 China's oral statement in the Panel's first substantive meeting with the parties, para 34,
32 China's response to Panel's question 5, paras. 7-10.
33 China's response to Panel's question 5, paras. 11-14.
34 China's Second Written Submission, para. 53,

threshold issue that whether the U.S. Panel Request meets the requirement of Article 6.2 of
the DSU. Such an approach would be to examine the sufficiency of a Panel Request, not on
the basis of the Panel Request itself, but on the basis of the assumption the Panel Request is
sufficient in the first place. This plainly conflates the proper order of analysis.35
IV. Order of Analysis
27. The Panel should first examine China 's measures at issue in relation to Article 8.2 of the
Safeguards Agreement, and only when the Panel was to find that this provision does not apply
to the measures at issue, the Panel would turn to and would need to turn to examine the
claims of the United States under Articles I and II of the GATT 1994. This order of analysis is
based on the correct understanding of the legal relationship between the WTO safeguards
disciplines and Articles I and II of the GATT 1994. A measure taken pursuant to and consistent
with Article 8.2 of the Safeguards Agreement "suspend the appli cation of" other obligations
under GATT 1994, and would not constitute a violation of these other obligations, including
Articles I and II of GATT 1994. Alternative order of analysis is not a correct reflection of the
legal relationship between the relevant provisions.36
V. Article 8.2 of the Safeguards Agreement Applies to China's Measures at Issue
28. China believes the relevant analytical approach taken and principles established by the
Appellate Body concerning the applicability of safeguard disciplines in Indonesia – Iron or Steel
Products case would provide useful guidance in determining whether a measure falls within
Article 8.2. The Panel would need to first identify the "constituent features" of a measure
under Article 8.2 of the Safeguards Agreeme nt, and then analyze, based on the facts before
it, whether "constituent features" of Article 8.2 measure are present for the measures at
issue.37
29. In Indonesia – Iron or Steel Products case, the Appellate Body relied on the plain meaning of
the releva nt provision to identify two "constituent features " of a safeguard measure. The
Appellate Body first identified a feature of the measure concerning the type of "action"
contemplated in the provision, and then identified another feature of the measure concerning
the purpose or objective of the "action", and reasoned that the "action" must have
"demonstrable link" to that specific "objective". The Appellate Body distinguished factors
included in the provision into those pertaining to the "legal characterization" of a measure for
purposes of determining the applicability of the WTO safeguard disciplines, and those that are
the "substantive conditions" and "procedural requirements" that determine the WTO-
consistency of a safeguard measure, and cautioned they should not be conflated.38
30. Applying the analytical approach by the Appellate Body, based on plain reading of Article 8.2
of the Safeguards Agreement, suspension of the concessions or other obligations under GATT
1994 is apparently the "action" contemplat ed. Reading together Article 8.2 with Article 8.1,
which provides for trade compensation for the purpose "to maintain" a substantially equivalent
level of concessions and other obligations to that existing under GATT 1994 between the
Member taking the safe guard measure and the affected exporting Members, the "objective"
of the "action" provided in Article 8.2 is, for the affected exporting Members, "to maintain a
substantially equivalent level of concessions and other obligations", "to the trade of the
Member applying the safeguard measure". For a measure to be subject to Article 8.2
disciplines, there must be a demonstrable link between the "action" of suspension of
concessions or other obligations and such an objective. These are the legal characteristics or
"constituent features" of an Article 8.2 measure for the determination of the applicability of
the WTO safeguard disciplines on a measure.39

35 China's response to Panel's question 1.
36 China's response to Panel's question 18, and China's Second Written Submission, paras. 62-66,
37 China's response to Panel's question 24, para. 48,
38 China's response to Panel's question 24, paras. 49 and 50, quoting Appellate Body Report, Indonesia
39 China's response to Panel's question 24, paras. 51-53, and China's Second Written Submission,
paras. 104 and 105.

31. Other elements in Article 8.2, including "no agreement is reached within 30 days in the
consultations under paragraph 3 of Article 12", "not later than 90 days after the measure is
applied", "upon the expiration of 30 days from the day on which written notice of such
suspension is received by the Council for Trade in Goods", and "the suspensi on of which the
Council for Trade in Goods does not disapprove", are "substantive conditions" or "procedural
requirements" not relating to the applicability of Article 8.2. In addition, whether the
suspension under Article 8.2 is indeed "substantially equi valent" to those by the safeguard
measure is a "substantive condition" relating to the WTO -consistency, not part of legal
characterization of the measure.40
32. The use of the phrases "to propose" or "proposing to" in Article XIX of the GATT 1994 and
Articles 8 and 12 of the Agreement on Safeguards is not relevant for the purposes of
determining the applicability of the provisions. From the structure of these provisions, it is
clear that the phrases should be read i n light of the temporal requirement in the provisions,
and reflect the procedural requirements in the provisions that a safeguard measure, or action
pursuant to Article XIX:1, could not be actually taken by a Member before a notice is given
and a consultation opportunity is afforded. A safeguard measure taken by a Member without
observing such procedural requirement would be in violation of this procedural obligations,
but would not make the safeguard disciplines not applicable to the measure.
33. It is true that measure under Article 8.2 cannot be used to counteract or rebalance any type
of measure taken by another Member, but only safeguard measure. However, whether a
measure is a safeguard measure is not determined by self -label by a Member, and the
temporal condition in Article 8.2 requires Members to take rebalancing measures "not later
than 90 days after" a safeguard measure is applied, making clear the affected Members would
not be provided with certainty whether the underlying measure is objectively a safeguard
measure when the rebalancing measures are taken as authorized under Article 8.2. Therefore,
the Panel can determine whether a measure falls under Article 8.2 of the Agreement on
Safeguards by objectively assess if the measure is "designed" to re balance concessions and
obligations with suspensions of concessions and other obligations by a safeguard measure,
without determining whether an underlying safeguard measure indeed objectively exists.
Whether the underlying measure is indeed objectively a safeguard measure should be part of
the panel's examination of the consistency with Article 8.2 of the measure at issue.41
34. The object and purpose of the Safeguards Agreement does not support leaving the affected
Members' right to take rebalancing mea sures in the control of Members applying safeguard
measures. Rebalancing right of Members affected by a safeguard measure under Article 8.2
is an important part of the overall rights and obligations in the multilateral safeguard
disciplines. For the rebalancing right under Article 8.2 of the Safeguards Agreement to have
its intended function, it is important to notice that Article 8.2 leaves such right in the hands
of the Members affected, not in the hands of the Member imposing the safeguard measure. If
a Member's right to take rebalancing measures is subject to another Member's action to label
or notify its measures as safeguard measures, the right of Members under Article 8.2 could
easily be deprived, contrary to the object and purpose of the Safeguards Agreement.42
35. The proposition of the United States that in order to characterize a measure as rebalancing
measure, all of the requirements for the imposition of the rebalancing measure in Article 8 of
the Safeguards Agreement need to be satisfied conflated the features of measures relating to
the applicability of the Safeguards Agreement with conditions and requirements relating to
the consistency with the Safeguards Agreement.43
36. The non-applicability of Article 8.2 of the Safeguards Agreement is an inextricable link of
China's measures to the claim of the United State for violation of Article I and II of the
GATT 1994. The United States needs to first discharge its burden to substantiate it and failed
to do so. The United States merely compared Chin a's measures with the concessions and

40 China's response to Panel's question 24, paras. 54 and 55.
41 China's response to Panel's question 24, paras. 56-60, and China's Second Written Submission,
paras. 107 and 108.
42 China's Second Written Submission, paras. 109-113.
43 China's Second Written Submission, para. 87, quoting Appellate Body Report, Indonesia – Iron or
Steel Products, para 5.62.

obligations under Article I and II of the GATT 1994, without regard to the safeguard disciplines,
which does not serve to establish a prima facie case of the U.S. claim of violation of Article I
and II of the GATT 1994.44
37. China agrees that there must be an underlying safeguard measure as provided for in
Article XIX of the GATT 1994 for the affected Member to have the right to take rebalancing
measures under Article 8.2. However, whether a Member has the "right" to implement a
rebalancing measure is an issue relating to the consistency with Article 8.2, not the
applicability of the provision. This is consistent with the findings of the Appellate Body that
the factors relating to the "right" of a Member to apply a saf eguard measure are the
substantive conditions and procedural requirements, failing which the safeguard measures
applied are inconsistent with the safeguard provisions, but the lack of "right" does not make
the WTO safeguard disciplines inapplicable to the measure.45
38. China's measures at issue imposed additional import duties in excess of China's bound duty
rates for certain products in its Schedules of Concessions and therefore suspended the
relevant concessions. In addition, the suspension of the concessions by China's measures only
applies to the imports from the United States, and suspended the MFN obligations in relation
to the United States concerning the products covered by China's measures. This "action" taken
by China through the measures at issu e thus suspended China's concessions and other
obligations under Article I and II of the GATT 1994 and satisfies the first of the "constituent
features" of measure under Article 8.2 of the Safeguards Agreement.46
39. The official documents and calculation of the amount of suspension as well as the consultation
request and notification within WTO relating to China's measures at issue all point to the fact
that the suspension of concessions and obligations are clearly designed for a single and specific
purpose, rebalancing the substantially equivalent level of concessions and obligations to the
trade of the United States for its application of a safeguard measure. There is clearly a
"demonstrable link" between the "action" of suspension and such an objective.47
40. Therefore, China's measures at issue present both "constituent features" of a measure under
Article 8.2 of the Safeguards Agreement and the provision applies.
VI. The Measures of the United States Constitute Safeguards Measures Provided for in
Article XIX of the GATT 1994
41. As the Appellate Body affirmed in Indonesia – Iron or Steel Products, the nature of a measure
is an objective question to be evaluated by the Panel. The Appellate Body emphasized that
"the description of a measure proffered by a party and 'the label given to [it] under municipal
law' are 'not dispositive' of the proper legal characterization of that measure under the covered
agreements."48 The Appellate Body identified two "constituent features" that must be present
in order for a panel to properly determine that a measure constitutes a safeguard measure.
First, the measure must be an action that " suspend, in whole or in part, a GATT obligation or
withdraw or modify a GATT concession." Second, the measure must be d esigned to prevent
or remedy serious injury to the Member's domestic industry caused or threatened by increased
imports of the subject product.49
42. The Appellate Body elaborated that a panel should evaluate and give due consideration to all
relevant factors, and a panel must identify all the aspects of the measure that may have a

44 China's Second Written Submission, paras. 72-81,
45 China's Second Written Submission, paras. 90-95, quoting Appellate Body Report, US – Line Pipe,
para. 84.
46 China's Second Written Submission, para. 116.
47 China's Second Written Submission, paras. 117 and 118.
48 China's First Written Submission, paras. 93 and 94, quoting Appellate Body Report, Indonesia – Iron
or Steel Products, para. 5.32.
49 China's First Written Submission, paras. 95-97, quoting Appellate Body Report, Indonesia – Iron or
Steel Products, paras. 5.55 and 5.60.

bearing on its legal characterization, recognize which of those aspects are the most central to
that measure.50
43. Thus, in the current dispute, the panel is required to asses s objectively whether the U.S.
Section 232 measures constitute safeguard measures. The panel should first determine
whether the Section 232 measures "suspend a GATT obligation, in whole or in part, or
withdraw or modify a GATT concession", and second, whether the measures are "designed to
prevent or remedy serious injury" to the U.S. steel and aluminum industries.
44. The Section 232 measures impose duties on steel and aluminum imports that exceed the
applicable bound rates set forth in the HTSUS in violation of Article II of the GATT 1994, and
present the first of the two requisite "constituent features" of a safeguard measure identified
by the Appellate Body in Indonesia – Iron or Steel Products. The additional import duties of
25 percent on steel imports and 10 percent on aluminum imports are covered by Article II:1(b)
because they constitute "ordinary customs duties", and effective "on … importation."
Alternatively, if the Section 232 measures are not "ordinary customs duties", since they are
not measures covered by Article II:2, they must be "other duties or charges … imposed on or
in connection with importation" imposed inconsistently with paragraph 1(b) of Article II
because no such "other duty or charge" was recorded in the HTSUS consistently with the
Understanding on Interpretation of Article II:1(b) of the GATT 1994.51
45. There is ample evidence demonstrating that the withdrawal or modifications of GATT
concessions under the Section 232 measures are "designed to prevent or remedy serious
injury" to the U.S. steel and aluminum industries, and the measures present the second
"constituent feature" identified by the Appellate Body in Indonesia – Iron or Steel Products.
46. The second sentence of Section 232 focuses on factors relating to the "impact of foreign
competition on the economic welfare of domestic industries", which co ntemplates a broad
inquiry into the effects of increased imports on the state of a domestic industry. The inquiry
into whether "domestic industries" are suffering from "serious effects" due to "excessive
imports" contemplated by Section 232, second sentence, mirrors the inquiry under Articles 2
and 4 of the Safeguard Agreement into whether a "domestic industry" is suffering from
"serious injury" due to "increased quantities" of imports. The contents of the Section 232
Reports, which underlie the Section 232 measures, affirm that it is the factors in the second
sentence of Section 232 that drive the analysis and conclusions of both Reports.52
47. The overall conclusion of the Steel Report and Aluminum Report further confirms that the
prevention or remediation of serious injury to the domestic steel and aluminum industry is a
central and independent aspect of the Section 232 measures. This overall conclusion of the
reports is based on several subsidiary findings, and the analysis underlying these subsidiary
findings coincides with the "relevant factors" identified in Article 4.2(a) of the Safeguard
Agreement. There is a "demonstrable link" between the recommendations provided in the
Steel Report and Aluminum Report and the objective of preventing or remedying injury to the
domestic steel and aluminum industry.53
48. The proclamations issued based on the determinations of the Section 232 Reports confirm
that the Section 232 measures are properly characterized as safeguard measures designed to
address the effects of increased imports on domestic industries. In addition, a memorandum
prepared by the U.S. Department of Defense demonstrates a central objective of the
Section 232 Measures is to protect and remedy the condition of the domestic U.S. industries
for their own sake, and not merely insofar as these industries are necessary to meet national
defence requirements. And public statements made by U.S. government official indicate a
demonstrable link between the Section 232 measures and the objective of protecting domestic
industries.54

50 China's First Written Submission, paras. 93 and 94, quoting Appellate Body Report, Indonesia – Iron
or Steel Products, paras. 98-100.
51 China's First Written Submission, paras. 103-110.
52 China's First Written Submission, paras. 112-115.
53 China's First Written Submission, paras. 116-133.
54 China's First Written Submission, paras. 134-148.

49. All the evidences establish that the Section 232 measures "suspend a GATT obligation, in
whole or in part, or withdraw or modify a GATT concession" and have a demonstrable link to
the objective of remedying serious injury to domestic industries caused by increased imports.
The U.S. Section 232 measures are therefore safeguard measures.
50. In Indonesia – Iron or Steel Products, no element or feature other than the two "constituent
features" has been identified by the Appellate B ody as also relating to legal characterization
of a safeguard measure. This suggests the two "constituent features" identified are not only
necessary, but also sufficient. If a measure designed for the specific and narrowly construed
purpose of preventing or remedying the injury suffered by the domestic industry caused by
increased imports could be regarded as not a safeguard measure in some way, it would make
it easy for Members to evade the application of the substantive conditions and procedural
requirements under the WTO safeguard disciplines, which would run contrary to the object
and purpose of the Safeguards Agreement "to re-establish multilateral control over safeguards
and eliminate measures that escape such control" as sets out in its preamble.55
51. The United States argued that its measures are not safeguard measures because it did not
invoke the safeguard provisions in applying its measures, and it did not notify the measures
to the WTO as such. However, Label under municipal law for a measure i s not dispositive of
the proper legal characterization of a measure, and the notification requirement under
Article 12 of the Safeguard Agreement is an obligation that Members applying safeguard
measures have to follow in order to apply the safeguard measu res in conformity with the
safeguard discipline.56
52. Notification is one of the "all relevant factors" that "a panel should evaluate and give due
consideration to determine whether a measure at issue present the two "constituent features",
not in and of itself dispositive. The notification requirement under Article 12 of the Safeguards
Agreement is clearly a procedural requirement for the Member taking a safeguard measure,
failing which a safeguard measure won't be consistent with the Member's obligation. When a
Member fails to make notification and violates its notification obligation, such failure does not
change the contents and substance of the measure itself, either in terms of the action taken
or the objective of such action, and does not renders WTO safeguard disciplines non-applicable
to the measure.57
53. Article 12 of the Safeguards Agreement "clarified and reinforced" the requirements in
Article XIX:2 of the GATT 1994 with detailed and specific requirements in relation to the time
and contents of notification, as well as in relation to the conducts of consultation, and there
are no separate sets of notifications under Article XIX:2 and Article 12. The legal relationship
between Article XIX:2 and Article 12 of the Safeguards Agreement does not support the
proposition of the United States that they serve distinct and different legal purpose
respectively for the applicability of the safeguard disciplines and the consistency with the
safeguard disciplines.58
54. In fact, the text of Article XIX:2 itself makes it clear the notification requirement has nothing
to do with the existence of a safeguard measure. Article XIX:2 provides that "[b]efore any
[Member] shall take action pursuant to the provisions of paragraph 1 [i.e. Article XIX:1], it
shall give notice in writing to the [Members] as far in advance as may be practicable …".
Already it is clear from the text that a safeguard measure - the "action" described in
Article XIX:1 - exists independently of the obligation to notify in Article XIX:2.59
55. Further, the counter-notification provision in Article 12.8 of the Safeguards Agreement further
clarifies that even if a Member failed to meet its notification requirement for a safeguard
measure, this does not render the measure falling outside of the scope of measures "dealt

55 China's response to Panel's questions 25 and 28.
56 China's oral statement in the Panel's first substantive meeting with the parties, paras. 41-43.
57 China's response to Panel's questions 25 and 34.
58 China's Second Written Submission, paras. 142-144.
59 China's oral statement in the Panel's second substantive meeting with the parties, para. 42.

with in this Agreement". Other Members are entitled to treat such measures as safeguard
measures and notify the Committee on Safeguards instead.60
56. Article 11 of the DSU requires the assessment of facts and applicability of the covered
agreement by the Panel to be "objective", therefore going beyond the domestic labelling of
the measure by a Member or the title of the relevant municipal law of a Member. The Panel's
"independent and objective" assessment of these factors would ne ed to reveal "the design,
structure, and expected operation of the measure as a whole", regardless of its domestic
labelling.61 The actual purpose of a measure is subject to the objective assessment by the
Panel, not determined by self -declaration by a Me mber. Otherwise, it would leave the
applicability of covered agreements to the subjective characterization by a Member, running
afoul of the right specifically bestowed on the Panel by Article 11 of the DSU.62
57. The phrase "shall be free" in Article XIX of the GATT 1994 sets out a "right" for the Members.
However, the right so set out is not unlimited, and does not support the interpretation that
when a measure is actually taken, a Member can decide the non-application of the safeguard
disciplines by not invoking through notification Article XIX of the GATT 1994. The Appellate
Body has found that such "freedom" granted in Article XIX:1(a) is the right within the
limitations that has been specifically provided for therein, and is not subject to interpretation
that goes beyond its scope. The text of Article XIX:1(a) indicates that "shall be free" grants
Members a right to decide on its own or at its discretion, when the relevant conditions are
met, whether to impose a safeguard measure or not to impose a safeguard measure. However,
when the Member exercised this right and decided to impose the type of action (suspension,
withdrawal or modification of concessions or obligations), for the specific objective (to prevent
or remedy injury to the domesti c industry caused by increased imports), the "freedom"
granted to it has already been exercised. Nothing in the legal text suggests that when the
measure is already and actually taken, "shall be free" granted the Member a second layer of
right to decide at its own discretion whether safeguard disciplines should or should not apply
to the measure it indeed imposed, through its choice whether to notify the measure as such.63
58. The proposition that "shall be free" stipulates that it rests solely on a Member to decide
whether to trigger the applicability of the WTO rules on safeguards to its measure runs in
direct contradiction to the object and purpose of the Safeguards Agreement, and also runs in
direct contradiction to the provision in Article 11 of the DS U, which provides that the
applicability of the relevant covered agreements and provisions is subject to the objective
assessment and determination of the Panels, not Members.64
59. Article 11.1(c) of the Safeguards Agreement provides that the Safeguards Agreement "does
not apply to measures sought, taken or maintained by a Member pursuant to provisions of
GATT 1994 other than Article XIX ". The ordinary meaning of the phrase "pursuant to" in
Article 11.1(c) requires that the me asure is consistent with the relevant legal basis, and
requires that there must be a genuine connection between the measure and the provision of
the GATT 1994 other than Article XIX. The words "sought, taken or maintained" modify the
word "measures", and d o not modify the phrase "pursuant to ". Therefore, the genuine
connection between the measure and the provision of the GATT 1994 other than Article XIX
must be objectively in existence, and could not be conclusively established by the "invocation"
of the Members at their own will or choice.65
60. Article 11 of DSU provides that a panel is under a duty to examine, as part of its "objective
assessment", whether the provisions of the covered agreements are "applicable" to the
measures at issue and are "relevan t" to the dispute case. Article 11 of the DSU provides as
context that Article 11.1(c) of the Safeguards Agreement does not provide the Members the
unilateral right to determine that the Safeguards Agreement does not apply to its measures

60 China's response to Panel's question 34, and China's Second Written Submission, paras. 145 and 146.
61 China's response to Panel's question 30.
62 China's response to Panel's question 31.
63 China's response to Panel's question 60.
64 China's response to Panel's question 70.
65 China's response to Panel's question 73, paras. 23-27.

by simply not "invoking" Article XIX, or by simply "invoking" other provisions of the
GATT 1994.66
61. Article 11.1(a) and Article 11.1(c) could be interpreted coherently. If a measure is objectively
a measure provided for or set forth in Article XIX of GATT 1994, that me asure could not at
the same time be "pursuant to provisions of GATT 1994 other than Article XIX " as in
Article 11.1(c), and, by the provisions of Article 11.1(a), the Safeguards Agreement would
apply to that measure. On the other hand, if there is objectively a genuine connection between
the measure and provisions of GATT 1994 other than Article XIX, the measure is not
objectively a measure provided for or set forth in Article XIX of GATT 1994, and the Safeguards
Agreement does not apply to that measure. Su ch examination of the measures should be
based on objective criteria, and based on objective legal characteristics of the measures.67
62. Article 11.1(c) does not provide that it is for the Member adopting a measure to decide what
type of mechanisms for o therwise GATT-inconsistent measures are applicable, as argued by
the United States. Such interpretation would run in direct contradiction to the object and
purpose of the Safeguards Agreement.
VII. Conclusion
63. For the reasons set forth above, China requests that the Panel to reject the claims of the
United States that China's measures at issue are inconsistent with China's obligations under
Article I:1, II:1(a) and II:1(b) of GATT 1994.

ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of the European Union 48
Annex C-2 Integrated executive summary of the arguments of Japan 53
Annex C-3 Integrated executive summary of the arguments of New Zealand 56
Annex C-4 Integrated executive summary of the arguments of Norway 57
Annex C-5 Integrated executive summary of the arguments of the Russian Federation 61
Annex C-6 Integrated executive summary of the arguments of Switzerland 65
Annex C-7 Integrated executive summary of the arguments of Türkiye 69
Annex C-8 Integrated executive summary of the arguments of Ukraine 75

ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION
I. THE UNITED STATES ' FAILURE TO REFER IN ITS CONSULTATIONS REQUEST OR
PANEL REQUEST TO THE SPECIFIC CONTROLLING PROVISIONS, WHICH ARE ARTICLE 8
OF THE AGREEMENT ON SAFEGUARDS AND ARTICLE XIX:3(A) OF THE GATT 1994
1. The US fails to refer to the provisions that control the question of permissible rebalancing in
response to a safeguard measures: Article XIX:3(a) of the GATT 1994 and Article 8 of the Agreement
on Safeguards. It believes that, in doing so, it can convince the Panel to close its eyes to the fact
that the US measure is a safeguard, and push the Panel into treating the controlling provisions as
so-called "affirmative defences".
2. The US errs when arguing that Article XIX:3(a) of the GATT 1994 and Article 8 of the
Agreement on Safeguards are so-called "affirmative defences", assimilated for example to Article XX
of the GATT 1994.
3. Article XIX:3(a) (which refers to rebalancing), just like XIX:1(a) (which refers to the right to
impose a safeguard), provide that, if the requirements are met, Members "shall be free" to suspend
the relevant obligations. This is not a question of "justifying" a "violation". In other words, these
provisions are not affirmative defences, but enable the taking of an action (i.e. sus pend the
obligation).
4. In that sense, both of these provisions are similar to Article XXVIII of the GATT 1994
(modification of schedules) which provides that a party which proposes to modify or withdraw a
concession "shall be free to do so". Modifying a concession alters the content of that Member 's
obligations. It does not violate those obligations, such that justification would be called for. The legal
position is also similar with respect to anti -dumping or countervailing measures taken under
Article VI of the GATT. Article VI does not "justify" a violation of Articles I and II; rather, it provides
for the possibility to take an action which does not constitute a violation. The US also errs when
arguing that the Agreement on Safeguards as a whole be ch aracterised as a mere "affirmative
defence". This is incorrect, because that Agreement is full of provisions which are simply in the
nature of obligations.
5. Cases such as US – 1916 Act, Australia – Apples, EC – Seal Products and Thailand – Cigarettes
(Philippines) (Article 21.5 – Philippines) show that the present Additional Duties cases are not an
isolated instance, but rather a type of situation that has occurred in the past. In those cases, the
WTO adjudicating bodies did not shy away from fulfilling their duties and deciding on the applicability
of the covered agreements. Logically, such an analysis took place upfront, before the substance of
the different claims was reached.
6. The European Union considers that past cases concerning the relationship b etween the
Anti-Dumping Agreement and the GATT 1994 provide useful guidance to understand the relationship
between the Agreement on Safeguards and certain provisions of the GATT 1994. In particular, the
European Union considers that those cases provide support to its legal position that the Agreement
on Safeguards is not in the nature of an affirmative defence to an alleged violation of Articles I or II
of the GATT 1994.
II. BURDEN OF PROOF
7. Because Article 8.2 is not an affirmative defence, it is not for the respondent to raise or to
make a case under it. Rather, Article 8.2 is the controlling provision, and the US should have raised
it, if it was to have any hope of succeeding in its claims. It failed to do so.
8. Thus, the European Union agrees that it is the complainant that has the burden of making a
prima facie case of inconsistency with Article 8 of the Agreement on Safeguards. The European Union

recalls that the Agreement on Safeguards is not in the nature of an affirmative defence and the
initial onus rests on the complainant, which has to make its case.
III. ORDER OF ANALYSIS
9. The European Union agrees with the US that the Panel can properly assess the more specific
claim before assessing the more general claim. Article II:1(b) is, indeed, more specific, as it
proscribes a specific type of less favourable treatment (duties in excess of bound rates) which will
also constitute less favourable treatment under Article II:1(a) (the latter being a consequential
claim).
10. The European Union consi ders that the same approach of addressing the more specific
provision before the more general provision should guide the Panel 's order of analysis between
Articles 8.2 of the Agreement on Safeguards and Article XIX:3(a) of the GATT 1994, on the one
hand, and Articles I and II of the GATT 1994, on the other hand.
11. First, Article 8.2 of the Agreement on Safeguards is the more specific provision.
12. Second, beginning the analysis with Article 8.2 offers possibilities to exercise judicial economy.
If the Panel were to find that Article 8.2 applies to the measures at issue, it would be impossible for
the US to succeed in its claims under Article I and II of the GATT 1994, because the US would have
failed to even make a claim under the controlling provisions. Beginning with Articles I and II of the
GATT 1994 offers no such possibilities, in any circumstances. This is because a measure that is
consistent with Article 8.2 (including a measure that is presumed to be consistent with that provision
because no claim to the contrary has been made, as in this case) cannot be inconsistent with
Articles I and II of the GATT 1994.
13. Third, the applicability of a covered agreement is a threshold issue which should, as a general
matter, be assessed first. This question of applicability is always an objective question that is never
entirely in the hands of either litigant acting unilaterally.
IV. THE AGREEMENT ON SAFEGUARDS AND ARTICLE XIX OF THE GATT 1994 ARE
APPLICABLE TO THE MEASURES ADOPTED BY THE UNITED STATES
14. The E U 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 que stion. Contrary to
what the US asserts, it is not a question to be decided unilaterally by the Member imposing the
safeguard measure.
15. 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 such as are
at issue in this dispute.
16. In making that objective assessment of whether a measu re is a safeguard, the Panel must
engage in a case-specific assessment, having regard to all of the relevant facts. In this respect, and
again contrary to what the US asserts, 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.
17. The fulfilment of the requirements in Article 12 is a question of consistency, and not a question
that decides the applicability of the Ag reement on Safeguards. If a Member decides to take a
measure that is objectively a safeguard without notifying it, the conclusion is not that Article XIX of
the GATT 1994 and the Agreement on Safeguards do not apply. The conclusion is that the measure
is WTO-inconsistent.
18. Furthermore, 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.

19. In the context of Article 1 of the Agreement on Safeguards, in order to be a safeguard
measure, a measure must have two constituent features. First, it must suspend, in whole or in part,
a GATT obligation or withdraw or modify a GATT concess ion. 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 sa feguard 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.
20. 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. If
so, even if the measure had some other "aspects" that suggest that it also has another objective,
this would not detract from the conclusion that the measure is a safeguard. In such circumstances,
whatever other provisions of another agreement that might be applicable would not exempt the
measure from complying fully with the conditions set out in the Agreement on Safeguards. In the
EU's view, the test to be performed when deciding whether the Agreement on Safeguards applies to
a measure is not a "centre of gravity" test.
21. In conducting its assessment the Panel must have regard to the measure "as a whole". The
only reasonable outcome of such an objective assessment is to conclude that the US measures are
safeguards.
22. The US measures suspend at least one GATT obligation, in whole or in part, or withdraw or
modify at least one GATT concession. 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.
23. The US measures have a specific objective of preventing or remedying serious injury to the
US domestic steel and aluminium industries caused or threatened by increased imports of the
relevant products. Furthermore, this is one of the "most central" aspects of the measures. Finally,
this is also a defining characteristic of a safeguard measure. Thus, with the two defining
characteristics being cumulatively present, the US measures clearly fall within the scope of the
Agreement on Safeguards. This conclusion is clearly supported by an analysis of the "design,
structure, and expected operation" of the steel and aluminium measures, as well as by several
additional features of those measures. Moreover, those measures were no t taken pursuant to any
provisions of the GATT 1994 other than Article XIX.
24. The European Union considers that whether the US' Section 232 duties constitute a safeguard
measure is the matter before the Panel in US – Steel and Aluminium Products, as the measure at
issue. The measures at issue in the present proceedings are the measures in the form of additional
duties taken by the respondent. It would be permissible, but not necessary, for this Panel to find as
a preliminary matter that the US measures are safeguards.
V. WITH REGARD TO THE RE-BALANCING MEASURES AT ISSUE
25. In order to determine whether or not a measure falls within Article 8.2 , a panel must make
an objective assessment of all the facts and evidence. Just as there are certain objective, constituent
features of safeguard measures, there are also certain objective elements which determine whether
a measure falls within Article 8.2.
26. In the European Union's view, there are two such elements. The first is the suspension of the
application of concessions or other obligations under the GATT 1994; the second is the absence of
a unilateral measure by the safeguard -imposing Member, or of an agreement on adequate means
of trade compensation, designed to and capable of maintaining a substantially e quivalent level of
concessions.
27. The European Union notes that it is the very purpose of Article 8.2 to enable affected exporting
Members to rebalance (i.e. maintain substantial equivalence) without waiting for a multilateral
determination that the underlying measure is a safeguard. Article 8.2 foresees that suspension must
take place within strict deadlines shortly after the application of the underlying safeguard measure.

Moreover, under certain circumstances (as outlined in Article 8.3) the right of s uspension can even
be exercised immediately. If those Members, faced with a safeguard measure that is mislabelled by
the adopting Member in a self-serving manner, had to wait for a multilateral finding that the measure
is indeed a safeguard, they would be effectively deprived of their rights under Articles 8.2 and 8.3.
28. Neither the decision-making rules of the CTG or the GC, nor the requirements of Article 8.2
concerning the absence of disapproval by the CTG, have any bearing whatsoever on the question of
whether or not Article 8.2 applies, i.e. whether the measure can properly be considered a rebalancing
measure. However it is to be interpreted, the requirement of the absence of a disapproval is no more
than an obligation for the rebalancing Member.
29. The existence of "doubt" about whether the underlying measure is a safeguard cannot prevent
Members from exercising their rights under Article 8.2. To require absolute certainty would mean in
effect that, whenever the adopting Member chooses not to characterise the measure as a safeguard,
rebalancing would be impossible. Moreover, as we have learned in Indonesia – Iron or Steel
Products, a measure may not be a safeguard even where both Members agree that it is a safeguard.
Thus, there can be "doubt" even in the face of agreement among the Members involved.
30. Both for the underlying safeguard measure and for the rebalancing measure, the assessment
has to be objective, i.e. based on the objective characteristics of the measures as opposed to their
unilateral characterisation by the adopting Member. An objective assessment also means that the
legal characterisation of a measure cannot depend on the purely subjective intent of the adopting
Member.
31. To suspend a concession with respect to another Member or M embers means to suspend a
promise, or commitment, to act or refrain from acting in a certain way towards that Member or
Members. To take the example of duties, to suspend a concession in a Member 's Schedule means
to suspend the "promise" (towards one or more other Members) not to exceed the bound duty rate.
32. Whether the same Member actually exceeds the duty rate in question is a separate issue. It
is possible, for example, that the Member suspends a concession but does not actually increase the
relevant duty (or not yet). In this scenario, there would be a suspension, but there would not be any
violation of Article II:1(b), because the bound duty would not have been exceeded.
33. There is, however, one very important caveat, and a further distinction between suspensions
and violations. A valid suspension, i.e. a suspension taken in compliance with the applicable
provisions of the covered agreements, such as a WTO -consistent modification of a schedule under
Article XXVIII of the GATT 1994, a WTO -consistent safeguard measure, or a WTO -consistent
rebalancing measure, does not amount to or create any violation of the covered agreement, not
even a prima facie violation which would then presumably need to be justified.
VI. MEASURES THAT ARE CONSISTENT WITH THE AGREEMENT ON SAFEG UARDS AND
ARTICLE XIX OF THE GATT 1994 ARE NOT INCONSISTENT WITH ARTICLES I:1, II:1(A)
AND (B) OF THE GATT 1994
34. The treaty terms "to suspend the obligation in whole or in part or to withdraw or modify the
concession" in Article XIX:1(a) of the GATT 1994 do not mean that the original obligation remains
unchanged, but is "violated", with such "violation" being "justified" by Article XIX:1(a). Rather, as
the treaty expressly provides, they mean that the original obligation is suspen ded or altered.
Suspending an obligation is not the same thing as violating an obligation (which could then possibly
be justified).
35. The relationship between Article XIX of the GATT 1994 and Articles I and II of the GATT 1994
is analogous to the relatio nship between, for example: (i) Articles I, II and VI of the GATT 1994;
and (ii) Article IV of the GATT 1994 and other provisions of that treaty.
36. If the Panel finds (as it should) that Article 8.2 applies, it can no longer make any findings of
WTO-inconsistency, either under the specific requirements of Article 8.2 of the Agreement on
Safeguards (since the US has not made any claim under that provision), or under Articles I and II
of the GATT 1994 (since a measure that is consistent, or even presumed c onsistent, with the

controlling provision of Article 8.2 of the Agreement on Safeguards cannot be inconsistent with
Articles I and II of the GATT 1994).
VII. PROPOSAL ON INTER-PANEL COORDINATION
37. The European Union considers that there is nothing in the DSU that would prevent a form of
collaboration among the panels in the Steel and Aluminium disputes and those in the Additional
Duties disputes. This concerns, in particular, certain exchanges of views and harmonization of
timetables.
38. Importantly, there is no contagious risk to future disputes, given the particular and indeed
unique factual and legal setting of these cases, which are two sides of the same coin.
39. Article 13 of the DSU, among others, may provide a legal basis for such a collaboration, as it
provides that "panels may seek information from any relevant source". Such a cooperation would
be in line with the objectives of the dispute settlement system to ensure security and predictability
of the multilateral trading system (Article 3.2 of t he DSU), and to secure a positive solution to the
disputes (Article 3.7 of the DSU).
40. Indeed, the fact that panels can, and should, exchange views when deciding an identical or
closely related matter, is also supported by Rule 4(3) of the Working Proced ures for
Appellate Review. Under that provision, members of an Appellate Body division shall exchange views
with the other Members before finalizing their report. Under Rule 4(5), this does not interfere with
the division's full authority and freedom to hear and decide the appeal.
41. If such an exchange of views is consistent with the DSU, then there would be no reason to
hold otherwise for an exchange of views between two panels dealing with the same or closely related
matter. This is especially so in th e unique circumstances of this case, where panels are addressing
the same alleged safeguard measures, either as a measure at issue ( US – Steel and Aluminium
Products) or as the underlying measure which is rebalanced by the measure at issue (the Additional
Duties disputes).
42. In the same vein, the fact that the Chairman of the four panels in the Additional Duties
disputes is the same person speaks to the same reasoning, perfectly justified in the particular
circumstances of these disputes. While Article 9. 3 of the DSU is about co -complainants, the EU
considers that a similar approach is warranted in similar scenarios, and in specific circumstances
such the present one.
43. Such cooperation between panels, in the form of a preliminary exchange of views, is aimed at
ensuring that each of the panels makes an objective assessment of the matter before it, of the facts
of the cases, including of the applicability of and conformity with the covered agreements, as
required by Article 11 of the DSU.
44. This is particularly important in the context in which the US is blocking the appointment of
new Appellate Body members, and thus of the high possibility that when all these cases will be
decided there will be no appeal adjudicator to ensure coherence. Thus, it is even more important, in
order to ensure security and predictability to the multilateral trading system (Article 3.2 of the DSU),
that panels talk to each other in order to avoid divergent results and fragmentation.
45. The confidentiality obligation in Article 14 of the DSU does not prevent the form of
collaboration that the European Union has suggested. While panel deliberations are confidential, the
European Union sees this cooperative process, for example, in the form of a meeting or meetings
between all panellists in the Steel and Aluminium disputes and in the Additional Duties disputes.
Such exchanges of views or concertation would be preliminary, and external to the panel
deliberations. Thus, they would not breach the duty of confidentiality in Article 14.1 of the DSU.
46. The European Union considers that it is logical that the Steel and Aluminium panels, which
were first invested with the US safeguard measures as the measures at issue before them, should
decide first on that matter and only the n the Additional Duties panels should decide on the
rebalancing measures.

ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
I. INTRODUCTION
1. Japan welcomes this opportunity to present its views as a third party in this dispute . Japan
has a systemic interest in ensuring the proper and consistent interpretation of the WTO Agreements,
including Article XIX of the General Agreement on Tariffs and T rade ("GATT") 1994, as well as the
Agreement on Safeguards.
II. SCOPE OF ARTICLE XIX OF THE GATT 1994 AND THE AGREEMENT ON SAFEGUARDS
2. Japan views that, pursuant to the express language of Article 11 of the Understanding on
Rules and Procedures Governin g the Settlement of Disputes ( "DSU"), a panel must conduct an
independent and objective assessment of whether a WTO agreement applies to a measure at issue,
regardless of the alleged characterization of the measure by the Member imposing it. The
Appellate Body recently confirmed this interpretation of Article 11, stating that "a panel is not only
entitled, but indeed required, under Article 11 of the DSU to carry out an independent and objective
assessment of the applicability of the provisions of the covered agreements invoked by a complainant
as the basis for its claims, regardless of whether such applicability has been disputed by the parties
to the dispute ".1 As such, a Member imposing a measure does not alone determine whether the
Agreement on Safeguards applies to that measure; instead, this is a legal question that a panel must
answer based on its objective assessment.
3. Given that there is no clear textual definition of a "safeguard measure" in the text of the
relevant WTO Agreements, it would not be appropriate for panels or the Appellate Body to draft a
blanket definition of safeguard measures within the meaning of the Agreement on Safeguards. This
conclusion is consistent with the Appellate Body's findings in Indonesia – Iron or Steel Products that
"whether a particular measure constitutes a safeguard measure for purposes of WTO law can be
determined only on a case-by-case basis".2 Thus, the role of the panel in this dispute is to make a
case-specific, objective assessment of whether t he particular measures at issue is subject to the
disciplines of the Agreement on Safeguards. This assessment should be conducted through , inter
alia, an interpretation of "safeguard measures" based on the ordinary meaning of the term in its
context, and in light of the object and purpose of the relevant agreements3 (i.e., the Agreement on
Safeguards, the GATT 1994 and the other WTO Agreements).
4. Regarding the factors that are "relevant" for a panel's consideration of whether a measure is
a safeguard measure, Article 1 of the Agreement on Safeguards, which refers to GATT Article XIX,
anticipates certain types of actions (i.e., suspension, withdrawal, or modification of the obligation or
concession) implemented for a certain purpose (i.e., to prevent or remedy serious injury to domestic
producers). Thus, the key features of a safeguard measure include (1) an action "to suspend the
obligation … or to withdraw or modify the concession ", and (2) a purpose "to prevent or remedy
serious injury to domestic produc ers". Japan's suggested approach is consistent with the
Appellate Body's findings in Indonesia – Iron or Steel Products, which listed two factors – one action
and one purpose – that are necessary to find a safeguard measure.4
5. On the other hand, Japan disagrees with the views of some Members that this statement
contains the sole "definition" of a safeguard measure or represents "settled case law " on the
applicability of the Agreement on Safeguards.
6. First, the Appellate Body in Indonesia – Iron or Steel Products categorized the action and
purpose factors as necessary, but not sufficient, to find a given measure to constitute a safeguard

1 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.33. (emphasis added)
2 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.57.
3 Article 31 of the Vienna Convention on the Law of Treaties.
4 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60.

measure. The Appellate Body did not attempt to propose a comprehensive definition of a safeguard
measure or ultimately to decide the scope of the Agreement on Safeguards.
7. Second, treating the action and purpose features raised by the Appellate Body as a
comprehensive definition of the applicability of the Agreement on Safeguards could lead t o
unreasonable outcomes. For example, an anti-dumping measure is usually imposed to protect the
domestic industry in the form of duties in excess of a Member 's tariff concessions. Treating these
two factors as the comprehensive definition of a safeguard measure could therefore result in treating
all anti-dumping duties as "safeguards".
8. In Japan's view, significant evidentiary value must also be ascribed to some important factors,
such as the status of fulfillment of the notification requirements under Ar ticle 12 of the Agreement
on Safeguards. The Appellate Body also refers to "relevant notifications to the WTO Committee on
Safeguards" as part of "all relevant factors ", to which due consideration should be given when
determining the applicability of the Agreement on Safeguards.5
9. The object and purpose of the Agreement on Safeguards are described in its preamble, and
include "the need to clarify and reinforce the disciplines of GATT 1994 … to re-establish multilateral
control over safeguards and eliminate measures that escape such control ".6 Japan maintains that,
to achieve this objective, a panel's assessment of a measure must prevent a Member from "escaping"
the "multilateral control" disciplines of the GATT 1994 and the Agreement on Safeguards through
the Member's unilateral characterization of the measure in question as something other than a
"safeguard measure".
10. In this regard, the Appellate Body in Indonesia – Iron or Steel Products stated that, in
determining whether a measure constitutes a safeguard measure, "a panel is called upon to assess
the design, structure, and expected operation of the measure as a whole", and "must identify all the
aspects of the measure that may have a bearing on its legal characterization [and] recognize which
of those aspects are the most central to that measure".7 It continued that "a panel should evaluate
and give due consideration to all relevant factors, including the manner in which the measure is
characterized under the domestic law of the Member conc erned, the domestic procedures that led
to the adoption of the measure, and any relevant notifications to the WTO Committee on
Safeguards", adding 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".8 The Appellate Body in fact agreed with the panel in that dispute that the measure did
not become a covered safeguard measure simply because the Member in question follo wed its
domestic procedures on safeguards and notified the measure as such. Clearly, other considerations
are as important or more important than a Member's own characterization of the measure.
11. In Japan's view, the Appellate Body's approach, emphasizing "due consideration to all relevant
factors", is generally consistent with the object and purpose of the Agreement on Safeguards
because it would not allow a measure at issue to "escape" the WTO agreements ' "multilateral
control". In other words, a panel's comprehensive evaluation of a measure would ensure that the
Member imposing it could not avoid the Agreement on Safeguards ' disciplines by merely
characterizing the measure as something other than a safeguard measure or not invoking the
Agreement on Safeguards in dispute settlement.
12. Therefore, the Panel 's assessment of whether the Agreement on Safeguards applies in this
dispute must examine the design, structure, and expected operation of the measure at issue as a
whole and must give due consideration to all relevant factors. From this perspective, considering the
various factors raised by the Parties in these disputes, Japan sees no reason to exclude the
Section 232 measures at issue from the scope of the Agreement on Safeguards simply because the
United States does not characterize the measures as "safeguard measures".
13. Finally, Article XXVIII, entitled "Modification of Schedules ", is another GATT 1994 provision
that provides important context for the proper approach to and interpretation o f Article XIX of the
GATT 1994. First, an Article XXVIII modification must be conducted "on the first day of each

5 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60. (emphasis added)
6 Emphasis added.
7 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60. (emphasis added)
8 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60. (footnote omitted)

three-year period, the first period beginning on 1 January 1958 (or on the first day of any other
period that may be specified by the CONTRACT ING PARTIES by two-thirds of the votes cast)", and
at least "by negotiation" with "contracting parties primarily concerned". The measure at issue in this
dispute has not satisfied these procedural requirements.
14. Second, in contrast to Article XIX:1, Article XXVIII does not impose any substantive conditions
for the modification or withdrawal of concessions, such as serious injury caused by imports to the
relevant domestic industry or the necessity of protecting the relevant domestic industry. It is
essentially a political process that allows Members to re -negotiate their commitments. Therefore,
Article XXVIII addresses a similar action as that in Article XIX, but the process is not otherwise
characterized by its purpose. The process under Article XXVIII t herefore provides the broadest
possible legitimate manner in which a Member may seek to withdraw or modify a GATT concession.
In the context of the Section 232 measures at issue, however, the United States has conducted no
prior negotiations under Article XXVIII. In Japan 's view, this further confirms that the relevant
enquiry will need to be to assess whether the Member has complied with Article XIX of the GATT 1994
and the Agreement on Safeguards, rather than Article XXVIII.
III. PANEL'S TERMS OF REFERENCE
15. The above issue – the scope of the Agreement on Safeguards – must be separated from the
panel's terms of reference. A panel 's terms of reference must be understood by reference to the
panel request pursuant to Article 6.2 of the DSU – "identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly".
It is common for Members to raise certain defenses, such as those under Article XX of the
GATT 1994, and these will be examined by panels even though they were not mentioned in the panel
request.
16. The recent Appellate Body decision confirmed that "the use of the phrase 'how or why'" by the
Appellate Body in some cases "does not imply a new and different legal standard for complying with
the requirements of Article 6.2 of the DSU ", and that "the applicable legal standard" is the text of
Article 6.2 of the DSU9, the objective of which is to: (i) delimit the scope of the panel's jurisdiction;
and (ii) ensure due process for the respondent and third parties. 10In addition, "[t]he sufficiency of
a panel request under this standard is to be assessed on a case-by-case basis". 11

9 Appellate Body Report, Korea –Pneumatic Valves, para. 5.7
10 Ibid, para. 5.8.
11 Ibid, para. 5.7.

ANNEX C-3
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NEW ZEALAND
1. New Zealand's participation in the current dispute reflects its systemic interest in the issues
raised, in particular, the role of notifications under the Safeguards Agreement, and the role of the
Panel in determining the legal characterisation of measures in issue.
2. A measure does not need to be notified under Article 12 of the Safeguards Agreement in order
to constitute a safeguard measure. In Indonesia – Iron or Steel Products the Appellate Body
distinguished between those factors that determine whether a measure is in fact a safeguard
measure, and those factors that will determine whether it is a WTO consistent safeguard measure.1
Notification falls into this latter category. It is a procedural requirement directed at maintaining
transparency around the safeguard process, and ensuring that affected Members are given
opportunity to engage. A failure to notify a safeguard measure will be inconsistent with the
obligations set down in Article XIX GATT and Article 12 of the Safeguards Agreement. It is not,
however, determinative of the legal characterisation of the measur e, or the applicability of the
safeguards regime.
3. Whether a measure is correctly to be characterised as a safeguard is a matter to be determined
objectively by a Panel. Article 11 of the DSU requires a panel to carry out an objective assessment
of the mat ter before it, including carrying out an assessment of the legal characterisation of the
measures in issue. 2 Where a dispute exists between Members, it can be expected that they may
have differing views on the legal characterisation of relevant measures u nder the covered
agreements. It is for a panel to objectively determine these matters, in accordance with its
obligations under Article 11. While the parties' own views on the proper legal characterisation of a
measure may assist a panel in carrying out this exercise, they are not determinative.
4. In concluding – the giving of notice under Article 12 of the Safeguards Agreement is not an
essential step that must be taken for a measure to constitute a safeguard. Where a dispute exists
between Members, it is f or a panel to reach an outcome in accordance with its obligations under
Article 11 DSU. This is to be determined objectively, on a case by case basis, and in light of all
relevant facts and circumstances.

1 Appellate Body Report, Indonesia – Iron or Steel Products, at para 5.57.
2 Appellate Body Report, Indonesia – Iron or Steel Products, at para 5.33.

ANNEX C-4
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY
I. LEGAL STANDARD GOVERNING THE APPLICABILITY OF WTO OBLIGATIONS
1. It is well-established that municipal law classifications are not determinative of legal questions
raised in WTO dispute settlement proceedings, in particular how a measure is characterised under
WTO law, including which WTO obligations apply to a measure. As the Appellate Body has explained,
"the manner in which the municipal law of a WTO Member classifies an item cannot, in itself, be
determinative of the interpretation of provisions of the WTO cover ed agreements".1 Instead, the
characterisation of a measure under WTO law must be based on the measure 's "content and
substance", and "not merely on its form or nomenclature".2

2. It is not uncommon for a respondent to assert, based on domestic law classif ications, that a
measure is not subject to particular WTO obligations. In that event, as the panel in
Dominican Republic – Safeguard Measures has explained, "the determination on applicability [of the
provisions of the covered agreements to the challenged measures] must be a prior step to the
analysis of whether the impugned measures are consistent with the obligations contained in the
cited provision[s]".3

3. This "prior step" of determining the applicability of the relevant covered agreements is one
frequently faced by panels and the Appellate Body.4 A Member's characterisation of the measure at
issue is not determinative of the applicable WTO obligations. Instead, the assessment is based on
the content and substance of the measure, clarified according to: the text and structure of the
measure; the surrounding regulatory context; the domestic legal framework in which the measure
is adopted; and the design and application of the measure.

4. In sum, if a measure is, in "content and substance", a "safeguard measure", a Member cannot
exclude the application of the Safeguards Agreement by characterising the measure as something
other than a "safeguard measure " under its own domestic law. Otherwise, the Member 's own
characterisation of the measure would be determinative of the WTO obligations applicable to the
measure. In short, a Member would be able to decide for itself which WTO obligations apply to its
measures.

5. Instead, a panel must decide whether a covered agreement – here the Safeguards Agreement
– applies to a measure using the substantive criteria in WTO law. First, a panel must ascertain the
legal standard in the agreement governing the applicability of the agreement. Second, a panel must
assess the facts, in particular the nature and character of the measures at issue, and apply the legal
standard to the relevant facts.

II. LEGAL STANDARD GOVERNING THE APPLICABILITY OF THE SAFEGUARDS
AGREEMENT
6. Article 1 of the Safeguards Agreement provides that "this Agreement establishes rules for the
application of the safeguard measures which shall be understood to mean those provided for in
Article XIX of the GATT 1994". Norway, therefore, turns first to Article XIX to establish the scope of
application of the Safeguards Agreement. As the Appellate Body observed in Indonesia – Iron or
Steel Products , Article XIX is not styled as a definitional provision: "Article XIX:1(a) does not
expressly define the scope of measures that fall under th e WTO safeguard disciplines ".5 Instead,

1 Appellate Body Reports, US – Softwood Lumber IV, para. 65 and China – Auto Parts, footnote 244.
2 Appellate Body Report, US – Continued Zeroing, footnote 87.
3 Panel Report, Dominican Republic – Safeguard Measures, para. 7.58, referring to Appellate Body
4 Appellate Body Report, US – 1916 Act, para. 130; Appellate Body Report, Australia – Apples,
para. 173; Appellate Body Reports, EC – Seal Products, para. 5.19, citing Appellate Body Report,
EC – Asbestos, para. 72; Panel Report, Thailand – Cigarettes (Philippines) (Philippines – Article 21.5),
paras. 7.673-7.683.
5 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.57.

Article XIX serves to impose obligations on the adoption of safeguard measures. These obligations
are considerably developed in the Safeguards Agreement.

7. Given the nature of Article XIX, the Appellate Body caution ed against conflating the factors
that properly define a safeguard measure (and, hence, the applicability of the Safeguards
Agreement), with those that govern the WTO -consistency of such measures. A measure may be
properly regarded as a safeguard, even tho ugh it does not meet the WTO obligations governing
safeguard measures. If this were not the case, a measure could, by definition, be subject to
WTO safeguard obligations solely if it complied with those obligations and, correspondingly, there
could, by def inition, never be a WTO -inconsistent safeguard measure. The Appellate Body rightly
rejected this approach.

8. Although the provisions of Article XIX are not definitional, the Appellate Body found that they
shed light on the character of a safeguard measure. The Appellate Body found that the types of
measures "provided for" in Article XIX are those "designed to secure a specific objective, namely
preventing or remedying serious injury to the Member 's domestic industry ".6 To be a safeguard
measure, therefore, a challenged measure must have "a demonstrable link to the objective of
preventing or remedying injury".7

9. Connected to this objective, the Appellate Body also identified two "constituent features" of a
"safeguard measure": (1) it must suspend or withdraw a GATT 1994 obligation or tariff concession;
and (2) it must be designed to prevent or remedy serious injury to a domestic industry caused or
threatened by increased imports.8

10. The Appellate Body found that its view that the application of the Safeguards Agreement turns
on the "objective" of the measure was "buttressed" by the preamble to the Agreement, which
stresses "the importance of structural adjustment", and reiterates "the need to enhance rather than
limit competition in international markets".9

11. Article 12.1 of the Safeguards Agreement further confirms the Appellate Body's interpretation.
This provision identifies certain acts, by an importing Member, that trigger the application of
notification obligations in the Safeguards Agreement. These include the following acts: (1) "initiating
an investigatory process relating to serious injury or threat thereof" to a domestic industry, "and the
reasons for it "; and (2) "making a finding of serious injury of threat ther eof caused by increased
imports". These notification obligations underscore the critical role in safeguards actions of a finding
of serious injury to a domestic industry, caused by imports.

12. The US argues that the Safeguards Agreement applies to a measure only if the importing
Member formally invokes Article XIX of the GATT 1994. In setting out its incorrect interpretation of
the term "safeguard measure" under Article 1, the US essentially misunderstands the difference
between three distinct questions: (i) whether a measure is a WTO safeguard; (ii) whether the
importing Member has the right to apply a safeguard measure; and (iii) whether the measures are
applied in a manner consistent with the Safeguards Agreement.

13. Driven by its misunderstanding of the fundamental distinction between these three questions,
the US refers to inapplicable jurisprudence in support of its arguments. The US notes, for example,
the Appellate Body's statement that: "[n]otification under Article XIX … is 'a necessary prerequisite
to establishing a right to apply a safeguard measure'".10 The US relies on the Appellate Body's
statement to conclude erroneously that "[w]ithout an invocation of that right [through notification],
a measure does not qualify as a safeguard under the WTO Agreement".11

14. However, the Appellate Body 's statement simply means that a Member must notify a
safeguard measure in order for the safeguard measure to be consistent with the Safeguards
Agreement. The Appellate Body is not saying that the Member must notify a measure as a safeguard
in order for the Safeguards Agreement to apply to that measure. Rather, as the Appellate Body
explained in Indonesia – Iron or Steel Products , the applicability of the Agreement must be

6 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.56.
7 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.56.
8 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60.
9 Appellate Body Report, Indonesia – Iron or Steel Products, footnote 189.
10 The US' first written submission, para. 77.
11 The US' first written submission, para. 79.

objectively deter mined, separately from the question whether a measure is consistent with the
substantive and procedural conditions in Article XIX of the GATT 1994 and the Safeguards
Agreement.12

15. The US thus draws an incorrect distinction between the question of whether the Safeguards
Agreement applies, on the one hand, and the question of whether that safeguard measure has been
applied consistently with various requirements, on the other hand.

III. ARTICLE XIX OF THE GATT 1994 AND THE SAFEGUARDS AGREEMENT DO NOT
OPERATE AS AN "AFFIRMATIVE DEFENSE"
16. The US seems to treat Article XIX as an "affirmative defense", which applies to "justify" a
"violation" of the GATT, in two possible respects. First, Article XIX can be invoked by a Member
imposing a measure ( "importing Member"), to justify a violation of the GATT 1994; and second,
Article XIX can be invoked by a Member imposing retaliatory measures in resp onse ("retaliating
Member"), i.e., to justify retaliation measures that would otherwise violate the GATT 1994. However,
in both instances, the US argues that, for the "affirmative defense" to be available, the importing
Member must have formally invoked Article XIX, when imposing its measure in the first place. If it
does not do so, then neither the importing Member, nor the retaliating Member, can rely on
Article XIX to justify GATT violations.

17. Norway stresses that Article XIX does not operate as an "affirmative defense". It should be
recalled that the term "affirmative defense" is typically used to describe provisions like Article XX,
i.e., measures which are invoked by a respondent in order to justify a violation of the GATT 1994.
Norway points out that Article XIX and the Safeguards Agreement, by contrast, do not operate in
this way. Rather, they establish distinct obligations that apply when a Member wishes to take a
safeguard measure. Thus, if the importing Member imposes a safeguard consistent with t hose
obligations, there is no violation of the GATT 1994. In this sense, Article XIX and the Safeguards
Agreement operate in the same way as Article VI; they contain their own specific set of obligations
that, when particular substantive and procedural conditions are met, displace GATT obligations which
would otherwise be applicable.

18. The applicability of the Safeguards Agreement does not depend on the importing Member 's
invocation, as it would, for example, under Article XX. Rather, the applicability of t he Safeguards
Agreement is subject to objective determination. The question is whether the measure satisfies the
"constituent features" of a safeguard measure, as set out in Article 1 of the Safeguards Agreement.

IV. INTER-PANEL COORDINATION
19. The separate offensive and defensive dispute settlement proceedings originating from the US'
additional steel and aluminium tariffs are tightly interlinked. They are based on the same measures
imposed by the US, and the legal threshold questions to solve the disputes are identical. There is no
procedural obligation for the individual Panels to avoid contradiction. However, in line with the role
of the Panels in providing security and predictability to the multilateral trading system as mandated
in the DSU Article 3.2, general legal reasoning would require coherence between conclusions
spurring from identical issues. We presume that the efforts made to provide for the same Panel
Members in the offensive disputes and the same Panel Chair in the defensive disputes reflect this
need for coherence.

20. To achieve the desired coherence, it appears logical that the panels should take into
consideration the sequencing of the different panel deliberations and reports. The offensive panels
were established first, and thus, the Panels in the defensive disputes should be conscious about the
Panels´ conclusions in the offensive disputes. This implies a certain interaction between the Panels.
Norway is of the opinion that there is no need to search for a specific legal basis for such interaction;
the question is rather whether the DSU precludes it - which does not appear to be the case.
Contrastingly, Article 13 of the DSU does indeed reflect the need for panels, as described above, to
obtain relevant information to ensure coherent legal analysis. Generally, interaction between the
panels would ensure transparency and due process for the parties.

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

21. The confidentiality obligation set out in Article 14 of the DSU limits, but does not preclude
consultations between the Panels. This provision requires the panel deliberations to be confidential,
but consultations may be conducted in a limited way, i. e. through reporting of preliminary
conclusions and the reasoning behind them. This limited interaction would not reasonably qualify as
"panel deliberations".

ANNEX C-5
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE RUSSIAN FEDERATION
I. Introduction
Russia welcomes this opportunity to present its views as a third party in this dispute.
Without prejudice to Russia's position that it is up to a complainant to formulate the measures
at issue, identify the legal basis of complaint in its panel request and to choose the sequence of its
argumentation as it deems more appropriate, Russia submits that in the dispute before this Panel
the United States has articulated the improper legal basis for its cla ims. Thus, the United States
attempts to misguide the Panel as to the relevant legal and factual background of the dispute.
The United States appears to relegate China's exercise of essential right under Article 8.2 of
the Agreement on Safeguards to counter the disruptive effects of the United States ' safeguards on
their bilateral trade by not raising concerns about the consistency of the resulted measures with
Article 8.2 and by merely asserting that China's measures violate Articles I and II of the General
Agreement on Tariffs and Trade 1994 ("GATT 1994").
With that in mind, Russia addresses particular aspects of this dispute relating to why it is
important for a complainant to present the problem underlying the dispute in its entirety, as well as
to the interpretation of Article XIX of the GATT 1994 and the Agreement on Safeguards.
II. Order of analysis
III. Terms of Reference
This dispute presents not an ordinary situation. The complainant, being aware of the

IV. Applicable Legal Standard
First, Russia submits that being an emergency measure, a safeguard is not contingent upon
formal invocation. There is no such obligation under the Agreement on Safeguards and Article XIX
of the GATT 1994. Rather, a Member is obliged to notify the imposition of such a measure with a
view of ensuring other Members' right for preserving a substantially equivalent level of concessions.
It is the treaty language of Article 8.2 of the Agreement on Safeguards that requires that
suspension should not be disapproved. China decided to suspend its obligations, took certain
procedural steps under Article 8 .2 including its notification to the Council for Trade in Goods and
received no disapproval. Therefore, there is no question as to whether the suspension took place
under Article 8.2 as it was authorized by the Council for Trade in Goods.

The fact that the United States has not notified its measures to the WTO pursuant to the
Agreement on Safeguards is a procedural flaw of those measures that does not, however, affect in
any way the substance of the measures and their qualification as safeguards. Similarly, for example,
a technical regulation that has not been properly notified to the TBT Committee does not become
less of a technical regulation.
In sum, notification per se is not a constituent element, absent which a safeguard does not
exist. Notification is a legal requirement that should be met among other requirements for such a
measure to be WTO-consistent. A measure is a safeguard when it presents two constituent features,
as explained by the Appellate Body in Indonesia - Iron or Steel Products,1 and notification is not one
of them.
Second, by assessing the design, structure and expected operation of the measure at issue,
the Panel should take into consideration that:
(i) no agreement has been reached by China and the United States in the sense of Article 8.1
of the Agreement on Safeguards;
(ii) China has suspended substantially equivalent concessions or other obligations under
GATT 1994 to the trade of the United States;
(iii) China followed all the procedural steps set out in Article 8 of the Agreement on Safeguards
while imposing the measures, including the filing of the notification to the Council for Trade in
Goods;
(iv) the measures are designed and expected to operate for the purposes of compensation for
the adverse effects of the United States' measures on China's trade;
(v) the Council for Trade in Goods did not disapprove the suspension.
In Russia's view, there is more than enough evidence on the record to conclude that China
suspended its obligations under Article 8.2 of the Agreement on Safeguards.
Third, Russia submits that Article 8.2 of the Agreement on Safeguards cannot be treated as
an affirmative defense by the Panel as this provision's nature is that of a positive rule. The Agreement
on Safeguards does not constitute an exception to GATT 1994 obligations. As regards th e
particularities of the present dispute, Article 8.2 of the Agreement on Safeguards sets forth
conditions, i.e. positive obligations, under which a WTO Member may lawfully suspend its obligations
under the GATT 1994 (not justify violation). Such rules include, inter alia, procedural requirements,
for example, to submit a notification to the Council of Trade and Goods, and a material obligation
that the application of concessions or other obligations under GATT 1994 shall be substantially
equivalent to the suspension made by the initial safeguard measure against which such suspension
is made. Thus, Article 8.2 of the Agreement on Safeguards contains a clear list of positive obligations
and requirements for the suspension of concessions or other obligations u nder GATT 1994. These
provisions cannot be qualified as exceptions from obligations.
In sum, since there is no obligation that could be violated (rather, these obligations were
suspended), the Panel has neither legal basis to rule on the consistency o r inconsistency of the
measures at issue with Articles I and II of the GATT 1994, nor legal basis to treat Article 8.2 of the
Agreement on Safeguards as an affirmative defense.
V. The relationship between ds 558 and ds 544 disputes
Russia's principal position is that the Panel in this dispute should assess the matter before it
on its own merits as required by Article 11 of the DSU. The Panel should also act strictly within its
terms of reference under Article 7.1 of the DSU. There are also the followin g nuances the Panel
should take into account.
On the one hand, Russia's position is that the existence of an underlying measure is not a
threshold issue for the determination of the applicability of Article 8.2 of the Agreement on
Safeguards. For the resolution of the dispute before this Panel the legal characterization of whether
the United States' measures constitute a safeguard measure or not is not required nor is contested

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

as a part of issue of potential inconsistency of China's suspension under Article 8.2 of the Agreement
on Safeguards as well as China's suspension itself. It is undisputed fact that the United States applies
the import duties in respect of the goods originating from China, as well as some other countries,
beyond the rate established in the United States ' Schedule. Moreover, China in very clear terms
adopted its measures under Article 8.2 of the Agreement on Safeguards. Therefore, the Panel should
treat suspension under Article 8.2 of the Agreement on Safeguards as a matter of fact.
At the same time, the issues arising in the present Panel proceedings may overlap to a certain
extent with those raised in other disputes brought by certain WTO Members against the
United States, including the one initiated by China ( United States – Certain Measures on Steel and
Aluminium Products). This overlap would arise in respect of the proper legal characterization of the
United States' measures should the Panel here decide that it needs to rule on legal characterization
of the United States ' measures regardless of Russia's position that the ex istence of an underlying
measure is not a threshold issue for the determination of the applicability of Article 8.2 of the
Agreement on Safeguards.
Taking into account that the core issue of dispute DS544 is whether the United States '
measures constit ute safeguard measures and whether certain GATT 1994 and Agreement on
Safeguards' provisions were violated by such United States' measures, issue of whether the United
States' Section 232 duties constitute safeguard measures is a question of law in that di spute as it
requires analyses of consistency or consistency with the requirements of the claimed treaty
provisions.
In this regard, 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". The achievement of this goal will be seriously prejudiced should the Panel engage in
parallel examination of the underlying safeguard measures.
Therefore, should the Panel re cognize that the question as to "whether the US safeguard
measures on imports of aluminium and steel exist" is a question of law in this dispute, the Panel
would have to follow the DS544 panel's lead insofar as the issue is the proper qualification of the
United States' measures.

ANNEX C-6
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF SWITZERLAND
I. INTRODUCTION
1. Switzerland exercises its right to participate as a third party in this case because of its systemic
interest in the correct and consistent interpretation and application of Ar ticle XIX of the General
Agreement on Tariffs and Trade (the GATT 1994) and the Agreement on Safeguards.
2. Switzerland notes that the present dispute relates to measures taken by China in response to
the import adjustment measures imposed by the United S tates on certain steel and aluminium
products which are themselves being challenged in ongoing WTO proceedings by seven
WTO Members including Switzerland (DS544, DS547, DS548, DS552, DS554, DS556 and DS564).
As highlighted in its request for the establishm ent of a panel in DS556, Switzerland considers that
the adjustment measures imposed by the United States on imports of certain steel and aluminium
products constitute safeguard measures falling within the scope of the Agreement on Safeguards.
II. GENERAL OBSERVATIONS
3. Switzerland notes that Article XIX of the GATT 1994 establishes a right to impose safeguard
measures provided that certain conditions and circumstances listed in that provision and in the
Agreement on Safeguards are satisfied. These requirements include inter alia the obligation for the
Member proposing to apply a safeguard measure to endeavour, pursuant to Article 8.1 of the
Agreement on Safeguards, to maintain a substantially equivalent level of concessions and other
obligations to that e xisting under the GATT 1994 between it and the Members which would be
affected by such a measure, in accordance with the provisions of paragraph 3 of Article 12 of the
Agreement on Safeguards.
4. In the absence of an agreement on adequate means of trade c ompensation for the adverse
effects of the measure, the Agreement on Safeguards grants affected Members the right to suspend
the application of substantially equivalent concessions or other obligations under the GATT 1994.
The exercise of this "right of su spension", as referred to in Article 8.3 of the Agreement on
Safeguards, is subject to the substantive and procedural requirements listed in Article XIX:3 (a) of
the GATT 1994 and Article 8 of the Agreement on Safeguards. This right of suspension of equivalent
concessions of other obligations under the GATT 1994 to the trade of the Member applying the
safeguard measure sets per definition Article I of the GATT 1994 aside, as well as Article II of the
GATT 1994, if the measure is taken in the form of a duty in excess of those set forth in the Member's
Schedule.
5. Thus, if a complainant considers that the respondent has failed to comply with the
requirements applicable to Members taking rebalancing measures, it is for the complainant to make
a prima facie case of violation of Article XIX:3 (a) of the GATT 1994 and Article 8 of the Agreement
on Safeguards. We note that the United States has not brought any such claims. Thus, if the Panel,
making an objective assessment of the matter before it, as provided for under Article 11 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), finds that
Article XIX of the GATT 1994 and the Agreement on Safeguards are applicable to the case at hand,
it would thus need to reject the United States' claims, which are solely based on Article I and Article II
of the GATT 1994.
6. Switzerland notes that, even though the United States ' panel request does not identify the
Agreement on Safeguards, that agreement has been identified by China. The Pane l's terms of
reference are "to examine, in the light of the relevant provisions cited by the parties to the dispute,
the matter referred to the Dispute Settlement Body (DSB) by the United States in document
"WT/DS558/2". Article 8 of the Agreement on Safeg uards is one of the provisions cited by China.
The Panel is therefore required, in accordance with its terms of reference, to examine the matter
referred to by the United States in light of that provision.

III. OBSERVATIONS ON THE APPLICABILITY OF THE AGREEMENT ON SAFEGUARDS
a) Principles applicable to the legal characterization of the measures at issue
7. Contrary to what the United States argues in this dispute, the legal characterisation of a
measure for the purposes of determining the applicability of a relevant provision or agreement is
not an issue to be decided unilaterally by the Member taking the me asure. It is an issue that must
be determined objectively. In other words, the examination as to whether the provisions of the
covered agreements are "applicable" and "relevant" to the case at hand is part of the panel 's duty
to make an "objective assessment" pursuant to Article 11 of the DSU1.
8. 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 characterises the measure in its municipal law. Indeed,
the description of the measure by a party and "the label given to [it] under municipal law" "cannot
be the end of [the Panel 's] analysis"2 and are "not dispositive" of the proper legal characterization
of that measure under the covered agreements"3. As the Appellate Body emphasized, "a panel must
assess the legal characterization for purposes of the applicability of the relevant agreement on the
basis of the 'content and substance' of the measure itself"4.
9. The Appellate Body noted in Indonesia – Iron or Steel Products that the manner in which the
measure is characterized under domestic law, the domestic procedures that led to the adoption of
the measure, and any relevant notifications to the WTO Committee on Safeguards are relevant
factors in such an evaluation. However, "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"5.
10. Thus, the fact that a Member has not "invoked" its right to implement a safeguard measure
or has not notified the measure at issue to the WTO Committee on Safeguards does not mean that
such measure is not a "safeguard measure" within the meaning of Article 1 of the Agreement on
Safeguards. As emphasized above, the proper legal characterization of a measure has to be based
on the content and substance of the measure itself.
b) Constituent features of a safeguard measure
11. On the basis of the text of Article 1 of the Agreement on Safeguards and Article XIX of the
GATT 1994 read in its context, in order to be a safeguard measure, a measure must present two
constituent features, identified by the Appellate Body in Indonesia – Iron or Steel Products.
12. First, the measure must suspend, in whole or in part, a GATT obligation or withdraw or modify
a GATT concession. This follows from the text of Article XIX:1(a) of the GATT 1994 which refers to
measures that suspend a GATT obligation and/or withdraw or modify a GATT concession.
13. 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 the Appellate Body emphasized, "[t]he use of the word 'to' […]
indicates that the suspension of a GATT obligation or the withdrawal or modification of a GATT
concession must be designed to pursue a specific objective, namely preventing or remedying serious
injury to the Member 's domestic industry "6. Thus, the suspension of a GATT obligation or the
withdrawal or modification of a GATT concession must have "a demonstrable link" to the objective
of preventing or remedying injury7.
14. Switzerland considers that additional features, such as the "extraordinary" character of the
measure, its complementary relationship with trade remedy measures, its focus on the "import" of
the products concerned or the fact that it has been adopted pursu ant to a procedure which is very
similar to the procedure followed in safeguard investigations constitute additional elements

1 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.31.
2 Appellate Body Report, US – Large Civil Aircraft (2nd Complaint), para. 593.
3 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.32.
4 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.32.
5 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60.
6 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.56.
7 Appellate Body Report, Indonesia – Iron or Steel products, para. 5.56.

supporting its qualification as a "safeguard measure", even though it is not labelled as a "safeguard
measure" in the Member's domestic law.
15. The assessment of whether a measure presents the features highlighted above, and thus
constitutes a safeguard measure, is to be made on a case -by-case basis, taking into account the
design, structure, and expected operation of the measure a s a whole. In order to make such an
objective assessment, "a panel must identify all the aspects of the measure that may have a bearing
on its legal characterization, recognize which of those aspects are the most central to that measure,
and, thereby, properly determine the disciplines to which the measure is subject"8.
16. Once it is established that the measure presents those constituent features, that measure falls
within the scope of application of Article XIX of the GATT 1994 and the Agreement on Safeguards.
c) Observations regarding the two-step test cited by the United States
17. The United States submits that a two-step analysis is called for under Article XIX of the GATT:
the right to apply a safeguard measure as a first step and whether that safeguard measure has been
applied consistently with the various requirements as a second. The United States considers that the
invocation of Article XIX is a condition precedent that must be established not only with respect to
the second step but as an initi al matter9. The United States refers to the Appellate Body report in
US – Line Pipe in order to support its arguments.
18. However, in that case, the Appellate Body has not examined the issue of the existence of a
safeguard measure. The distinction made by the Appellate Body was between two inquiries relating
to the consistency of a safeguard measure with Article XIX of the GATT 1994 and the Agreement on
Safeguards. Both inquiries related to obligations laid down in Article XIX of the GATT 1994 and the
Agreement on Safeguards, but each inquiry related to a different type of obligations: on the one
hand, the obligations that must be satisfied in order for the Member to have the right to apply a
safeguard measure and, on the other hand, the obligations relat ing to the extent of the safeguard
measure.
19. The issue of the existence of a safeguard measure must not be confused with the issue of
whether such safeguard measure is consistent with the conditions and requirements laid down in
Article XIX of the GATT 1994 and in the Agreement on Safeguards. As noted by the Appellate Body
in Indonesia – Iron or Steel Products , "it would be improper to conflate factors pertaining to the
legal characterization of a measure for purposes of determining the applicability of the WTO
safeguard disciplines with the substantive conditions and procedural requirements that determine
the WTO-consistency of a safeguard measure"10.
20. The "right" to apply a safeguard measure refers to the fulfilment of certain requirements
provided for in Article XIX of the GATT 1994 and the Agreement on Safeguards. The exercise of the
right to impose a safeguard measure must in turn fulfil certain requirements in order to be "within
the limits set out in the treaty "11. Accordingly, contrary to what the United States argues, both
inquiries identified by the Appellate Body in US – Line Pipe related to the WTO -consistency of a
measure, and not to its legal characterization as a safeguard measure.
d) Notification is not a constituent feature of a safeguard measure
21. The notification requirements laid down in Article 12 of the Agreement on Safeguards are
unrelated to the issue of whether a measure constitutes a safeguard measure.
22. As the Appellate Body stated in Korea – Dairy regarding the object and purpose of Article 12,
"the notification serves essentially a transparency and information purpose"12. Thus, the notification
requirements constitute "obligations" but are not a "constituent feature" of a safeguard. In other
words, they do not determine the existence of a safeguard measure, as argued by the United States.

8 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.60.
9 United States’ first written submission, paras. 69 and 72.
10 Appellate Body Report, Indonesia – Iron or Steel Products, para. 5.57. (emphasis original)
11 Appellate Body Report, Indonesia – Iron or Steel Products, Fn. 193, referring to Appellate Body
12 Appellate Body Report, Korea - Dairy, para. 111, referring to the Panel Report, para. 7.126.

23. The notification obligations provided for under Article 12 of the Agreement on Safeguards are
thus conditions – among others – for a Member to lawfully exert its right to apply a safeguard
measure and not a constituent feature of a safeguard measure, the absence of which would impede
the characterization of the measure as a safeguard. According ly, if a Member fails to fulfil its
notification obligations under the Agreement on Safeguards, a panel would conclude that the Member
concerned acted inconsistently with its obligations under Article 12 of the Agreement on Safeguards
and not that a safeguard measure does not exist.
24. If the invocation of the right to take a safeguard measure by way of notification were – as
argued by the United States – a prerequisite for a safeguard measure to exist, it would suffice for a
Member not to notify a measur e in order to avoid the application of Article XIX of the GATT 1994
and the Agreement on Safeguards – and thus to circumvent its obligations under these provisions.
Doing so would also unilaterally deprive affected Members of their right to take rebalancing measures
under Article XIX:3 (a) of the GATT 1994 and Article 8 of the Agreement on Safeguards.
IV. INTER-PANEL COORDINATION
25. To the extent that the determination of the applicability of the Agreement on Safeguards to
China's measure depends on whether the underlying measures, namely the US measures on import
on steel and aluminium, are safeguard measures, there is a direct link between this dispute and the
dispute in which the underlying US measures on imports on steel and aluminium are challenged
(DS544).
26. Pursuant to Article 3.2 of the DSU "the dispute settlement system of the WTO is a central
element in providing security and predictability to the multilateral trading system", and, pursuant to
Article 3.7 of the DSU, "the aim of the dispute settlement mechanism is to secure a positive solution
to a dispute". Contradictory findings in this dispute and in the other disputes concerning measures
taken in response to the import adjustment measures imposed by the United States on certain steel
and aluminium products on the one hand, and disputes concerning these import adjustment
measures on the other hand, would not be consistent with those principles.
27. In Switzerland's view, the Panel would act within the bounds of its discretionary authority
under Article 13 of the DSU in seeking information from the panel in DS544, as long as it maintains
the deliberations confidential as required by Article 14 of the DSU and respects the requirements of
due process. In particular, the other panel should not participate in the internal discussions and
decision process of this Panel and vice-versa.
28. Switzerland notes that another option would be for the Panel not to issue its report until the
report of the panel in DS544 has been issued, keeping in mind the rule under Article 12.2 of the
DSU that "[p]anel procedures should provide sufficient flexibility so as to ensure high-quality panel
reports while not unduly delaying the panel process". This would allow the Panel to take into account
the findings of the panel in DS544.

ANNEX C-7
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 panel
questions in the parallel "rebalancing" dispute in DS558.
1.2. The United States' safeguard measures were introduced in March 2018 and subsequently
modified on several occasions. They take the form of additional duties and quantitative restrictions,
as well as a range of additional unpublished "grey area" measures, such as agreements with other
countries to restrict their exports to the United States.
1.3. When a WTO Member takes a safeguard measure, Article XIX of the General Agreement on
Tariffs and Trade (GATT 1994) and the Agreement on Safeguards explicitly contemplate that other
affected Members may impose trade restrictions on the Member imposing the safeguard, in order to
restore a balance of equivalent concessions. The respondents' measures challenged in DS558,
DS559, and DS566 appear to seek to do this. The United States' safeguard measures were
challenged separately by Turkey (DS564), China (DS544), India (DS547), the European Union (EU)
(DS548), Norway (DS552), Russia (DS554), and Switzerland (DS556) (Section 232 disputes).
1.4. The United States adopted its safeguard measures without complying with its obligations under
Article XIX of the GATT 1994 and the Agreement on Safeguards, including, in particular, the
obligation to take into account the trade interests of affected WTO Members. Thus, the United States
did not "endeavour to maintain a substantially equivalent level of concessions and other obligations
… between it and the exporting Members … affected by [the] measure", contrary to Article 8.1 of
the Agreement on Safeguards. The United States also failed to comply with the basic duty to hold
consultations, as required by Article 12.3 of the Agreement on Safeguards.
1.5. Thus, Turkey, as well as the other respondents in the rebalancing proceedings, had no choice
other than to proceed to the suspension of equivalent concessions in order to defend their legitimate
economic interests.
1.6. The United States and the WTO Membership at large were duly notified of these actions and
the legal basis for them. Hence, the United States, along with the rest of the WTO Membership, were
fully aware of the approach of Turkey, China, the EU, and Russia to this matter and the legal basis
for this approach.
1.7. Nevertheless, the United States has brought its claims in the present dispute under Articles I
and II of the GATT 1994. As such, the United States' complaint in these disputes suffers from a
fundamental flaw. The proper legal basis for these disputes is the WTO legal regime governing
safeguard measures. Article 8 of the Agreement on Safeguards and Article XIX:3(a) of the
GATT 1994 grant an affirmative right to any WTO M ember(s) affected by a safeguard measure to
obtain compensation from the importing Member or, in case compensation is not agreed upon, to
suspend equivalent concessions.
1.8. A claim under another provision of the GATT 1994 is not a valid alternative to a claim that must
be brought under the WTO safeguards regime. Any such claims would have to be rejected as having
been brought on an improper legal basis, i.e. under an incorrect or inapplicable provision of WTO law.
1.9. In light of these considerations, should the Panel determine – as it should – that both the
United States' measures on steel and aluminium and the respondents' measures at issue in these
disputes fall under Article XIX of the GATT 1994 and the Agreement on Safeguards, the Panel has
no choice but to end its analysis at that juncture and to reject the United States' claims.

1.10. Given that Turkey has addressed these matters in greater detail in its submissions in the
related disputes, Turkey — Additional Duties on Certain Products from the United States (DS561)
and United States — Certain Measures on Steel and Aluminium Products (DS564), Turkey attached
these submissions to its Third-Party Submissions, as exhibits, TUR-1 and TUR-2 respectively.
2 FACTUAL BACKGROUND
2.1. As noted, the respondents' additional duties were a response to the United States' safeguard
measures on steel and aluminium within the meaning of Article 8 of the Agreement on Safeguards
and Article XIX:3(a) of the GATT 1994. In order to fully understand the factual and legal context of
the measures at issue, therefore, it is important to start with the United States' underlying safeguard
measures.
2.2. The United States' safeguard measures consist of:
• additional duties on a wide rang e of steel and aluminum products, which are well above the
United States' tariff bindings in the United States' GATT Schedule of Concessions;
• quantitative restrictions, on steel or aluminum, or both; and
• certain unpublished measures in the form of voluntary export restraints.
2.3. These safeguard measures were imposed by the President of the United States through a series
of Presidential Proclamations, issued between March and August 2018. These Presidential
Proclamations were, in turn, based on two investigations conducted by the United States Department
of Commerce on the basis of Section 232 of the 1962 Trade Expansion Act. The nominal purpose of
these investigations was to determine whether imports of steel and aluminium were entering the
United States in a manner that impaired national security. In reality, the investigations essentially
determined whether increased steel and aluminium imports were injuring, or threatening to injure,
the profitability of the US steel and aluminium industries. In e ssence, therefore, the investigations
were safeguard investigations in all but name.
3 TURKEY'S OBSERVATIONS ON THE PRESENT DISPUTE
3.1 Summary of the Appellate Body's standard for determining the existence of a
safeguard measure
3.1. The United States' steel and aluminium measures are safeguard measures within the meaning
of Article XIX of the GATT 1994 and the Agreement on Safeguards. This is because they satisfy the
legal standard for determining whether a safeguard measure exists, as explained by th e
Appellate Body in Indonesia — Iron or Steel Products. The Appellate Body identified the two following
definitional criteria for the existence of a safeguard measures:
• The "measure must suspend, in whole or in part, a GATT obligation or withdraw or modi fy a
GATT concession"; and
• 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".1
3.2. The Appellate Body emphasized that, to constitute a safeguard measure under WTO law, the
suspension of a GATT obligation aimed at preventing or remedying serious injury "must be designed
to pursue a specific objective , namely preventing or remedying serious injur y to the Member's
domestic industry".2 This specific objective must be "the most central" aspect of the measure. 3 In

1 Appellate Body Report, Indonesia — Iron or Steel Products, para. 5.60 (see also para. 5.64).
2 Appellate Body Report, Indonesia — Iron or Steel Products, paras. 5.56, 5.58. (underlining added)
3 Appellate Body Report, Indonesia — Iron or Steel Products, paras. 5.60, 5.64, 5.68, and 5.70.

its determination of whether a safeguard measure exists, a panel should "evaluate and give due
consideration to all relevant factors", none of which is, in and of itself, dispositive.4
3.2 Turkey agrees with the respondents that the United States' measures on steel and
aluminium are safeguard measures
3.3. The United States' case rests entirely on its erroneous view that its import measures on steel
and aluminium, as well as the rebalancing measures at issue in these disputes, fall outside the scope
of WTO safeguard rules. The United States' main argument is that, because the United States has
failed to notify its safeguard me asures in a manner consistent with applicable provisions of the
Agreement on Safeguards, not only should these measures escape all WTO safeguard disciplines,
but the retaliatory rights of the Members affected by these measures must also be curtailed.
3.4. Turkey trusts that the Panel will reject the United States' position. A Member imposing a
measure cannot decide unilaterally whether that measure satisfies the Appellate Body's two-pronged
test and is a safeguard measure, subject to the requirements of Ar ticle XIX of the GATT 1994 and
the Agreement on Safeguards. These are objective inquiries and must be conducted on the basis of
objective criteria.
3.5. Consequently, a Member imposing a measure also cannot itself determine, through its domestic
law and through the categorization or nomenclature of the measure, to what extent WTO law applies,
or, indeed, which provisions of WTO law apply. Pursuant to Article 11 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU), it is a panel's duty to "make an
objective assessment of the matter before it, including an objective assessment of ... the applicability
of and conformity with the relevant covered agreements" (emphasis added).
3.6. This focus on the objective features of a mea sure, rather than on any unilateral domestic
categorization of it, reflects the general principle of WTO law that has been applied in several WTO
disputes.5 Guided by this principle, in Dominican Republic – Safeguard Measures, the panel examined
the legal characterization of the measures at issue as safeguard measures, given that one of the
parties had contested this characterization.6 In Indonesia — Iron or Steel Products and India — Iron
and Steel Products, the panels decided to conduct this assessment, even though the two disputing
parties had agreed that the measures at issue constituted safeguard measures.7
3.7. The United States appears to ignore a key element of the Appellate Body's reasoning in
Indonesia — Iron or Steel Products. The Appellate Body drew a bright -line distinction between, on
the one hand, the objective definitional criteria of a safeguard measur e, and, on the other hand,
compliance with the conditions (both substantive and procedural, such as notification obligations)
required for a WTO-consistent safeguard measure.8 This means, for instance, that a failure to notify
properly a safeguard measure within the meaning of Article 12.1 of the Agreement on Safeguards
cannot mean that WTO safeguard rules do not apply. Rather, a measure is still a safeguard measure
as long as it meets the definitional criteria explained above. However, such a measure may be
inconsistent with Article XIX of the GATT 1994 and the relevant provisions of the Agreement on
Safeguards. Any other conclusion would lead to unreasonable results. A Member could avoid the
applicability of potentially onerous rules simply by violating them.
3.8. In sum, based on the two objective criteria that the Appellate Body set out in Indonesia — Iron
or Steel Products , the United States' import measures on steel and aluminium, as well as the
respondents' rebalancing measures, fall under the scope of Article XIX of the GATT 1994 and the
Agreement on Safeguards.

4 Appellate Body Report, Indonesia — Iron or Steel Products, para. 5.60.
5 Appellate Body Report, US – Large Civil Aircraft (2nd complaint), para. 593; Appellate Body Report,
Canada – Renewable Energy/Canada – Feed-in Tariff Program, para. 5.127; Appellate Body Report,
Indonesia — Iron or Steel Products, para. 5.32.
6 Panel Report, Dominican Republic – Safeguard Measures, paras. 7.23-7.24, 7.89.
7 Panel Report, Indonesia — Iron or Steel Products, para. 7.10; and Panel Report, India — Iron and
Steel Products, paras. 7.29-7.30.
8 Appellate Body Report, Indonesia — Iron or Steel Products, para. 5.57.

3.3 The United States' complaint should be dismissed in its entirety as the United States
based its claims on improper legal provisions
3.9. Should the Panel agree with the respondents, and Turkey, that (i) the United States' measures
on steel and aluminium are safeguard measures within the meaning of Article XIX and the Agreement
on Safeguards, and (ii) the measures challenged in these disputes fall under Article XIX of the
GATT 1994 and Article 8.2 of the Agreement on Safeguards, it should reject the United States' claims
under Articles I and II of the GATT 1994 as improper. This is because the United States should have
brought its claims under Article XIX:3(a) of the GATT 1994 and Article 8.2 of the Agreement on
Safeguards. In addition, the United States cannot be permitted to add these claims at a later stage
of the panel proceedings, as these claims were not set out or otherwise mentioned in the
United States' consultations and panel requests.
3.10. The United States attempts to circumvent its obligation to make a prima facie case of a
violation of Article 8.2 of the Agreement on Safeguards and/or Article XIX:3(a) of the GATT 1994 by
alleging that the respondents' reference to the Agreem ent on Safeguards is in the nature of an
"affirmative defence". Turkey trusts that the Panel will reject this erroneous argument.
3.11. The WTO safeguards regime – whether in Article XIX or in the Agreement on Safeguards – is
not in the nature of an (affirmative defence) exception. Rather, it is a separate, free-standing regime
that applies to particular types of measures. Panels occasionally refer to such legal provisions as
"autonomous rights", juxtaposing them to exceptions.9 Other WTO Members that feel aggrieved by
such measures, in particular safeguard measures, have to articulate their challenges on the basis of
the applicable trade remedy rules (i.e. WTO safeguard rules).
3.12. The term "affirmative defence" does not derive from the text of the co vered agreements.
Rather, it is a term developed by WTO panels and the Appellate Body to describe the relationship
between particular provisions of the covered agreements, provisions that are not at issue in this
case. A good example is the relationship between Article XI and Article XX of the GATT 1994. When
Article XI has been found to be violated, for instance, as a result of an import prohibition, a
respondent may choose to invoke Article XX as an affirmative defence. For example, the respondent
may argue that the measure pursues a legitimate non-trade purpose, such as public health.
3.13. If the respondent indeed chooses to invoke Article XX, it bears the burden of proof to
demonstrate that all of the elements of Article XX are met. If it succeeds in doing so, the initial
violation of Article XI is excused.
3.14. If the respondent chooses not to invoke Article XX – which it is perfectly free to do – then the
adjudicating panel is precluded from addressing Article XX. Otherwise, the panel would make a case
for the respondent. In these circumstances, the violation of Article XI remains and the respondent
has lost the dispute, due to a violation of Article XI. The absence of a finding under Article XX does
not change the fact that the initial finding of violation under Article XI exists.
3.15. But this relationship is fundamentally different from the relationship between Articles I and II
of the GATT 1994, on the one hand, and the safeguard disciplines in Article XIX of the GATT 1994
and the Agreement on Safeguards, on the other hand.
3.16. This is because, when a measure falls under Article XIX and the Agreement on Safeguards,
that measure does not – at the outset of the panel's analysis – fall under Articles I and II. The
obligations in these provisions are "suspended", displaced, not applicable, and, therefore, cannot be
violated. This is in stark contrast to Article XI in the previous example.
3.17. Moreover, in pointing to Article XIX and the Agreement on Safeguards as the applicable law,
the respondent is not choosing to raise an affirmative defence. As Turkey explained, there is no
violation that would have to be justified by means of an affirmative defence. And the respondent is
not exercising any choice. The respondent is instead pointing to what it believes is the proper

9 See, for instance, Panel Report, EC – Approval and Marketing of Biotech Products,
paras. 7.2964-7.2965, 7.2984-7.2998.

applicable law, as the starting point for the panel's legal analysis. And it is incumbent on the panel
to ascertain that starting point for its analysis, according to Article 11 of the DSU.
3.18. Prior panel and Appellate Body decisions unambiguously support this approach. In the context
of anti-dumping measures, the Appellate Body found in EC – Fasteners (China) that, until a finding
under Article VI and the Anti -Dumping Agreement has been made, it is not possible to determine
whether a measure violates Articles I and II of the GATT 1994.10 Similarly, in US – Zeroing (Japan),
the Appellate Body found a viol ation of Article II of the GATT only after finding violations of WTO
anti-dumping rules.11
3.19. In the latter case, the Appellate Body described Articles VI and the Anti-Dumping Agreement
as a "safe harbour" with respect to Articles I and II of the GATT 1994.12 The term "safe harbour" is
just another way of saying what Turkey has just explained: that Articles I and II cannot be said to
have been violated until the analysis under the anti -dumping rules has been concluded. If the
measure is consistent with the anti-dumping rules, there is no violation of Articles I and II. Hence
there is no need to invoke an exception, or "affirmative defence".
3.20. The relationship between Articles I and II, on the one hand, and Article VI and the
Anti-Dumping Agreement, on the other hand, is fully analogous to the relationship with the safeguard
rules.
3.21. Stepping away from the technical language of "affirmative defence", Turkey urges the Panel
to consider the following, as a matter of the context and purposes of the relevant texts:
3.22. If the United States' approach in these disputes were to be correct, this would revolutionize
the manner in which complainants would from now on challenge trade remedy measures.
Complainants could take the very simple route of a lleging a violation of Articles I and II, then lean
back, and force the respondent to raise, for instance, the Anti-Dumping Agreement as an "affirmative
defence". The respondent would have to demonstrate as a negative that its measure does not violate
any of the many substantive and procedural obligations under Article VI of the GATT 1994 and the
Anti-Dumping Agreement.
3.23. This is not only entirely unfeasible but also legally incorrect. It is also contrary to how trade
remedy measures have been challen ged in the literally hundreds of WTO disputes over the past
quarter of a century in the WTO, including in numerous cases initiated by the United States.
3.24. On the basis of the above , Turkey considers that the Panel should begin its analysis by
assessing the threshold question of the applicability of the provisions cited by the parties to the
measures at issue. Either Articles I and II of the GATT 1994 are applicable or, alternatively,
Article XIX:3(a) of the GATT 1994 and Article 8.2 of the Agreement on Safeguards are applicable.
Both cannot be directly applicable at the same time.
3.25. In sum, the proper legal basis for the United States to bring claims in these disputes is
Article XIX:3(a) of the GATT 1994 and Article 8 of the Agreement o n Safeguards. Should the Panel
agree with this position, it should reject the United States' claims under Articles I and II of the
GATT 1994, because these claims are not based on the correct applicable WTO legal provision.
3.4 Proposals on inter-panel coordination
3.26. The dispute settlement proceedings in the Section 232 disputes are closely linked to the
rebalancing proceedings. In particular, in both disputes, the determination of whether the
United States' import measures on steel and aluminium co nstitute safeguard measures within the
meaning of WTO law is a core element of the respective panel's analysis. In the Section 232 disputes,
the panel must assess whether the United States' import measures constitute safeguard measures
in order to assess the claims of violations under Article XIX of the GATT 1994 and the Agreement on
Safeguards. In the proceedings at hand, in turn, the Panel must assess whether the United States'
measures constitute safeguard measures, as part of its assessment of whether t he respondent's

10 Appellate Body Report, EC – Fasteners (China), paras. 392-393.
11 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan), paras. 200, 209.
12 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan), para. 209.

measures at issue constitute rebalancing measures pursuant to Article 8.2 of the Agreement on
Safeguards and Article XIX:3(a) of the GATT 1994.
3.27. In these circumstances, it would be of great concern if the two panels were to reach divergent
conclusions on the legal characterization of the United States' import measures on steel and
aluminium. This would undermine the meaningful operation of the WTO dispute settlement system,
especially in the current circumstances in which the Appellat e Body is not operational. Absurd
consequences could arise if, for instance, the panel in the Section 232 disputes were to decide that
the United States ' measures are not safeguard measures, while this Panel decided that the
United States' measures are safeguard measures, and vice versa.
3.28. In Turkey's view, the most appropriate approach that this Panel should take to avoid the
undesirable outcome of divergent views is to delay issuing its report until the panel in the
Section 232 proceedings has issued its report. Turkey notes, however, that while this approach
would seem reasonable and desirable, the Panel has a duty under Article 11 of the DSU to make its
own objective and independent assessment of the matter before it. As ex plained, this matter
necessarily includes the legal characterization of the United States' measures. As the Appellate Body
clarified in US – Continued Zeroing, "[f]actual findings made in prior disputes do not determine facts
in another dispute".13

13 Appellate Body Report, US – Continued Zeroing, para. 190.

ANNEX C-8
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF UKRAINE
1. INTRODUCTION
1. Ukraine welcomes the opportunity to participate as a third party in case China – Additional
Duties on Certain Products from the United States and to present its views on certain issues raised
by parties in this dispute. Ukraine will provide its comments on the interpretation and application of
the provisions of the WTO agreements discussed before this Panel.
2. While not taking a final position on the specific merits of this case, Ukraine will provide its
views on some of the legal claims advanced by the Parties to the dispute. In particular, Ukraine will
make submissions on the following issues:
- whether the United States failed to present proper claims before the Panel by not addressing
Article XIX:3 of the General Agreement on Tariffs and Trade 1994 ( "GATT 1994") and the
Agreement on Safeguards in its panel request; and
- request for preliminary ruling put forward by China.
3. Ukraine reserves the right to raise other issues at the third party hearing with the Panel.
2. CLAIMS REGARDING THE UNITED STATES' FAILURE TO PRESENT PROPER CLAIMS
BEFORE THE PANEL
4. This dispute raises an important issue of the panel's terms of reference under Article 7 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes ( "DSU") as well as
what information in panel request is "sufficient to present the problem clearly" under Article 6.2 of
the DSU. Ukraine would like contribute to the understanding of these Articles, outline its vision, and
help the Panel in the analysis without making judgments on the facts of the case.
5. Not for the repetition but for the sake of clarity, Ukraine would briefly provide the background
of this claim. In this case, the United States challenges the additional duties for some products
originating in the United States imposed by the People 's Republic of China ( "China") only under
Articles I and II of the GATT 1994.1 In this respect, China claims that its measures are taken pursuant
to Article XIX:3 of GATT 1994 and Article 8.2 of the Agreement on Safeguard and the United States
was aware of this fact as it was explicitly specified in its notification of the measures to the Council
for Trade in Goods on 29 March 2019.2 However, the United States did not to make any claim with
regard to the Agreement on Safeguards, because of its belief that it is "within the judgment of the
WTO Member imposing the measure" to characterise such measure as being safeguard or not.3
6. In this regard, Ukraine would like to put on record the following. First, it is beyond dispute
that Article 3.3 of the DSU entitles a Member that considers that any benefits accruing to it directly
or indirectly under the covered agreemen ts are being impaired by measures taken by another
Member to have recourse to the WTO dispute settlement mechanism to be able to redress the
violations.
7. Second, it is also clear that a Member is largely self -regulating under Article 3.7 of the DSU
and it must be presumed by panels and the Appellate Body that "whenever a Member submits a
request for establishment of a panel, that such Member does so in good faith, having duly exercised
its judgement as to whether recourse to that panel would be 'fruitful'."4

 Ukraine requested that its written submission is used as its integrated executive summary.
1 First Written Submission of the United States, paras. 2, 5.
2 First Written Submission of China, para. 50.
3 First Written Submission of the United States, para. 88.
4 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 74.

8. Third, 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"5 referring to parties and not
a party meaning that panels shall address the provisions of the agreements raised by both parties
(complaining and responding).
9. Fourth, it is however settled case law that a panel 's terms of reference is determined by the
panel request6 and panels thus cannot rule on the issues that were not included in the panel request.
In our case, this means that the Panel cannot rule whether China acted consistently or inconsistently
with the Agreement on Safeguards as there were no claims raised by the United States under this
Agreement.
10. Fifth, findings in EC – Tariff Preferences and Brazil – Taxation cases stipulate that when the
complaining party is aware that the challenged measure was adopted under the specific agreement,
a complaining party is obliged to identify the relevant provisions of this specific agreement in its
panel request.7
11. Thus, Ukraine sees two p lausible scenarios of the situation. On the one hand, there is the
loop-hole for the complaining party to escape from its obligation to present the problem clearly under
Article 6.2 of the DSU in such cases where we hypothetically presume that a complainan t intently
fails to address the claim under the specific agreement and simply refers to the GATT 1994 violation
when the issue is really governed by that specific agreement. On the other hand, the complaining
party is completely right, when we one more tim e presume, that the claim falls exclusively under
GATT 1994 and not under, for example, the Agreement on implementation of Article VI of the
General Agreement on Tariffs and Trade 1994, the Agreement on Subsidies and Countervailing
Measures, the Agreement on Safeguards, etc.
12. It is logically that in the first presumed instance, panel should decline to rule on the violation.
However, in the second, it flows that if panel declines to rule, it will deprive the complaining party
of its right to "a positive solution to a dispute" under Article 3.7 of the DSU.
13. Leaving the presumption behind, Ukraine therefore believes that the Panel, while making its
analysis, should look into the nature of the measure at issue to find whether it is in its terms of
reference as was stated in paragraph 9 of this submission.
14. Notwithstanding the provision of Article 3.10 of the DSU that "complaints and
counter-complaints in regard to distinct matters should not be linked ", Ukraine is of the view that
the result of t his dispute cannot contradict and is tightly connected to the findings of the panel in
the ongoing United States – Certain Measures on Steel and Aluminium Products case brought by
China as in that case China claims the violation of the United States under the Agreement on
Safeguard.
15. To summarize and to make it clear, Ukraine is without prejudice whether the United States
measures were safeguard measures or not, Ukraine rather believes that it is the Panel's task first to
look into the nature of the measure to understand if the Panel can then continue its analysis of the
GATT 1994 violations.
2.1 Comments on the request for preliminary ruling put forward by China
16. Ukraine has already expressed its views that the Panel should first examine the nature of the
measure to see if it falls within the Panel 's terms of reference. Thus, Ukraine would not repeat its
position once again.
17. Here, Ukraine only highlights that insuring the "prompt settlement" of the dispute is necessary
to promote "security and predictability in the dispute settlement system".8 Therefore, the Panel has

5 DSU, Article 7.2 (emphasis added).
6 See for example, Appellate Body Report, EC and certain Member States – Large Civil Aircraft,
para. 639 (referring to Appellate Body Report, Guatemala – Cement I, paras. 72 and 73; Appellate Body
Report, US – Carbon Steel, para. 125; Appellate Body Report, US – Continued Zeroing para. 160).
7 See for example, Appellate Body Report, EC – Tariff Preferences, para. 118; Appellate Body Report,
Brazil – Taxation, para 5.366.
8 Appellate Body Report, US – Stainless Steel (Mexico), para. 161.

to make an effort to address the issue identified above as soon as practicable namely in its
preliminary ruling.
3. CONCLUSIONS
18. Ukraine hopes that its contribution in the present dispute will be helpful to the Panel in
objectively assessing the matter before it and in developing the respective legal interpretations of
the WTO agreements. Ukraine thanks the Panel for the opportunity to share its views and would be
happy to provide further comments on the third -party session or answer any questions the Panel
may have.

ANNEX D
COMMUNICATIONS BY THE PANEL
Contents Page
Annex D-1 Communication by the Panel on requests for enhanced third-party rights 79
Annex D-2 Communication by the Panel on China's request for a ruling under Article 6.2
of the DSU
81

ANNEX D-1
COMMUNICATION BY THE PANEL ON REQUESTS FOR ENHANCED THIRD-PARTY RIGHTS
The Panel refers to the separate communications from Canada 1, Turkey 2, Russia 3,
the European Union4, and Mexico5 (hereafter "the requesting third parties"), asking that the Panel
exercise its discretion under Article 12.1 of the DSU to grant all third parties additional rights to
those provided in Article 10 of the DSU. In particular, the requesting third parties requested the
Panel to grant the following rights: (i) to receive copies of all of the parties' written submissions,
their oral statements, rebuttals and answers to questions from the Panel and each other, through
all stages of the proceedings; (ii) to be pr esent for the entirety of all substantive meetings of the
Panel with the parties; (iii) to review the draft summary of their own arguments in the descriptive
part of the Panel Report; and (iv) to make a brief oral statement during the second substantive
meeting.
The requesting third parties argue that particular circumstances exist in this dispute that warrant
the granting of enhanced third-party rights, including that: (i) the measure that has been challenged
by the United States in this dispute is simila r to the measures that have been challenged by the
United States in the five (5) disputes initiated against the requesting third parties; (ii) the outcome
of this dispute may have a significant impact on the Panels' findings and recommendations in the
other five (5) disputes initiated by the United States against the requesting third parties; (iii) the
number of responding parties as well as third parties participating in these six disputes demonstrates
the outcomes of these disputes will have important legal and systemic implications on the entire
WTO Membership; and (iv) the enhanced third-party rights requested would not negatively affect
due process in general; or specifically, the due process rights of the United States; or would impose
any additional burden on the United States.
The Panel requested the parties' views on each of the five (5) requests for enhanced third -party
rights. China supported these requests. For China, the similarities between the measure challenged
by the United States in this dispute and those in the other five (5) Additional Duties disputes, as
well as the fact that the United States has brought, simultaneously to this dispute, disputes against
the requesting third parties, constitute special circumstances that warrant the granting of enhanced
third-party rights. China also noted that the specific enhanced rights requested by the third parties
would not impose any undue additional burden on the parties to this dispute.
The United States, for its part, requested that the Panel deny these requests for enhanced third-party
rights. The United States is concerned that the respondents in all six (6) Additional Duties disputes
may be using the additional requested rights to function as co -respondents in these disputes . For
the United States, these requests are not well founded under the DSU, and the granting of additional
rights to third parties would result in a corresponding imposition of additional obligations on the
parties. The United States also argued that additional obligations may not be imposed on a disputing
party absent its consent.
The Panel understands that it enjoys discretion to grant additional rights to third parties so long as
such rights are consistent with the DSU and due process.6 Prior panels have on occasion exercised
this discretion and granted additional third -party rights in certain circumstances, which could, for
instance, include situations where the measures at issue result in significant economic benefits for
certain third parties7; situations where third parties maintained measures similar to the measures

1 Communication dated 15 March 2019.
2 Communication dated 18 March 2019.
3 Communication dated 19 March 2019.
4 Communication dated 20 March 2019.
5 Communication dated 22 March 2019.
6 Appellate Body Reports, US – FSC (Article 21.5 – EC), para. 243; EC – Hormones (Canada),
Korea – Nucleoids, Annex D-2.
7 Panel Reports, EC – Bananas III (Guatemala and Honduras), para. 7.8; EC – Tariff Preferences,

at issue8; or where practical considerations arise from a third party's involvement as a party in a
parallel panel proceeding.9 The Panel is not persuaded that the circumstances of the requests before
it would warrant the granting of enhanced third-party rights.
The Panel disagrees with the requesting third parties' assertion that the alleged similarity of the
challenged measures in the six (6) Additional Duties disputes requires that the Panel grant enhanced
third-party rights in this particular dispute. While understanding the interest of the requesting third
parties in the outcome of this dispute, the Panel considers that, in addition to their ability to present
their views in this dispute as third parties, each of the requesting third parties is the respondent in
one of the other five (5) Additional Duties disputes, and will therefore have the opportunity to defend
its own challenged measures in its respective panel proceedings.
Although the Panel appreciates the systemic importance of the outcome of these disputes for all
third parties, the Panel is not persuaded that the rights provided for in Article 10 of the DSU would
not suffice to allow their interests to be fully taken into account. Consistent with Article 10.2 of the
DSU, all third parties in panel proceeding s may be presumed to have a substantial interest in the
matter before the Panel.10 WTO Members have a collective interest in the interpretation of covered
agreements, and panels ' interpretations of WTO agreements are, by definition, of systemic
importance to WTO Members.11
The requesting third parties have also argued that granting their requests would not negatively affect
due pr ocess or impose any undue additional burden on the parties. The Panel notes that the
requesting third parties are asking the Panel to go beyond what is specifically provided for in the
DSU, despite the lack of agreement by the parties on the requests. In t he Panel's view, this should
be enough to raise due process concerns. Furthermore, the Panel notes that the requested enhanced
third-party rights would impose upon the parties the additional burdens of processing and reviewing
numerous third -party submissi ons in addition to those foreseen in Article 10 of the DSU, and
eventually responding to related questions from the Panel or the other party.
In considering requests for enhanced third-party rights, the Panel must be mindful of the distinction
drawn in the DSU between parties and third parties, which should not be blurred.12 In this respect,
the Panel agrees with the United States that, when considering whether the balance of rights and
obligations of parties and third parties agreed to in the DSU may be al tered, it is important to bear
in mind the absence of an agreement of the parties to the dispute. The Panel is not persuaded that
the arguments put forward by the requesting third parties justify altering such a balance without the
agreement of the parties.13
In the light of the foregoing, the Panel declines the requests for enhanced third -party rights
submitted by Canada, Turkey, Russia, the European Union and Mexico.

8 Panel Report, EC – Tariff Preferences, Annex A, para. 7(b).
9 Panel Report, EC — Hormones (Canada), para. 8.17.
10 Panel Report, EC and certain member States – Large Civil Aircraft, para. 7.166.
11 Panel Report, India – Solar Cells, para. 7.35.
12 Panel Report, EC- Bananas III (Guatemala and Honduras), para. 7.9. See also, Panel Reports, EC –
Tariff Preferences, Annex A, para. 7(d); EC –Export Subsidies on Sugar (Australia, Brazil and Thailand),
para. 2.7; EC and certain member States – Large Civil Aircraft, para. 7.166; Korea – Nucleoids, Annex D-3.
13 Numerous panels have denied requests for enhanced third-party rights when one of the parties has
objected to such request, e.g. in EU – Biodiesel (Indonesia), Korea – Radionuclides, US – Coated Paper
(Indonesia), Indonesia – Import Licensing Regimes, US – Washing Machines, EC – Seal Products and Argentina
– Import Measures.

ANNEX D-2
COMMUNICATION BY THE PANEL ON CHINA'S REQUEST FOR A RULING
UNDER ARTICLE 6.2 OF THE DSU
In its first written submission, China requested that the Panel "make a ruling, on a preliminary basis
or otherwise, that the claims of the United States are not prope rly before the Panel".1 Specifically,
China argues that the United States' panel request does not meet the requirements of Article 6.2 of
the DSU.
The Panel has carefully considered the arguments on China's request submitted by the parties and
the third parties.
China's request touches upon issues that are closely related to the substantive questions raised by
the parties in this dispute. In the Panel's view, a preliminary ruling on th is issue may require
adjudicating upon the merits of the parties' arguments, including with respect to the applicability of
the relevant covered agreements to the measures at issue. The Panel thus considers that a decision
on a preliminary basis would be premature.
Accordingly, the Panel has decided to address this issue in its Report and therefore declines China's
request to make a ruling, on a preliminary basis, that the claims of the United States are not properly
before the Panel.