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First Written Submission of Switzerland in DS556

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First Written Submission of Switzerland in DS556 WORLD TRADE ORGANIZATION Panel established pursuant to Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes UNITED STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS WT/DS556 First Written Submission of Switzerland Geneva, 1 May 2019 United States – Certain Measures on Steel and First Written Submission of Switzerland Aluminium Products WT/DS556 1 May 2019 TABLE OF CONTENTS I. Introduction ......................................................................................................... 1 II. Procedural Background ....................................................................................... 3 III. Standard of Review ............................................................................................. 5 IV. The adjustment measures on imports of steel and aluminium products ............... 8 A. Introduction .............................................................................................. 8 B. Factual Background ................................................................................. 8 1. Introduction .................................................................................. 8 2. Section 232 investigations concerning imports of steel and aluminium into the United States ................................................ 10 a. Investigation concerning imports of steel ........................ 10 b. Investigation concerning imports of aluminium ............... 10 3. Findings and Recommendations of the USDOC ........................ 11 a. The Steel Report ............................................................ 11 b. The Aluminium Report ................................................... 17 4. Import adjustments on steel and aluminium products ................. 21 a. Additional import duties .................................................. 21 b. Country exemptions and import quotas .......................... 24 c. Product exclusions ......................................................... 25 5. Relevant statements of the US authorities and US officials regarding the steel and aluminium investigations and the resulting adjustment measures .................................................. 26 6. The products concerned ............................................................ 28 7. The United States’ tariff bindings on the products concerned .................................................................................. 29 C. The measures at issue .......................................................................... 30 i United States – Certain Measures on Steel and First Written Submission of Switzerland Aluminium Products WT/DS556 1 May 2019 D. The measures at issue are inconsistent with the Agreement on Safeguards and Article XIX of the GATT 1994 ....................................... 32 1. The measures at issue fall within the scope of the Agreement on Safeguards and of Article XIX of the GATT 1994 .......................................................................................... 32 a. Principles applicable to the legal characterisation of the measures at issue ................................................ 32 b. The scope of the Agreement on Safeguards .................. 34 c. The measures at issue fall within the scope of the Agreement on Safeguards and of Article XIX of the GATT 1994 .................................................................... 36 d. Conclusions ................................................................... 52 2. The measures at issue are inconsistent with the Agreement on Safeguards and Article XIX of the GATT 1994 .......................................................................................... 52 a. The relevant documents to be examined by the Panel ............................................................................. 52 b. The measures at issue are inconsistent with Article XIX:1(a) of the GATT 1994 in relation to the requirements of unforeseen developments and the effect of the obligations incurred under the GATT 1994 ............................................................................... 54 c. The measures at issue are inconsistent with Article XIX:1(a) of the GATT 1994 and Articles 2.1 and 4.2(a) of the Agreement on Safeguards in relation to the requirement of increased imports ......................... 57 d. The measures at issue are inconsistent with Article 2.2 of the Agreement on Safeguards .............................. 64 e. The measures at issue are inconsistent with Articles 4.1 and 4.2(a) of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 in relation to the requirement to demonstrate serious injury, or threat thereof, to a domestic industry .......................................................................... 65 ii United States – Certain Measures on Steel and First Written Submission of Switzerland Aluminium Products WT/DS556 1 May 2019 f. The measures at issue are inconsistent with Articles 2.1 and 4.2(b) of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 in relation to the causation requirements ........................ 79 g. The United States acted inconsistently with Article 3.1 and 4.2(c) of the Agreement on Safeguards ............. 83 h. The measures at issue are inconsistent with Article 5.1 of the Agreement on Safeguards and Article XIX:1(a) of the GATT 1994 because those measures are applied beyond the extent necessary to prevent or remedy serious injury and to facilitate adjustment ................................................... 87 i. The measures at issue are inconsistent with Articles 7.1 and 7.4 of the Agreement on Safeguards .................................................................... 89 j. The measures at issue are inconsistent with Article 11.1(a) of the Agreement on Safeguards ....................... 92 k. The measures at issue are inconsistent with Article 11.1(b) of the Agreement on Safeguards ....................... 93 l. The United States acted inconsistently with Articles 12.1, 12.2 and 12.3 of the Agreement on Safeguards and Article XIX:2 of the GATT 1994 ............ 97 3. Article XXI of the GATT 1994 is not available as a defence to justify measures that are inconsistent with Article XIX of the GATT 1994 and the Agreement on Safeguards ................. 100 4. Conclusions ............................................................................. 102 E. The measures at issue are inconsistent with several provisions of the GATT 1994 .................................................................................... 103 1. The measures at issue are inconsistent with Article II:1(b) of the GATT 1994 .................................................................... 103 a. The legal standard under Article II:1(b) of the GATT 1994 .................................................................. 103 b. The relevant facts ........................................................ 104 iii United States – Certain Measures on Steel and First Written Submission of Switzerland Aluminium Products WT/DS556 1 May 2019 c. The legal analysis ........................................................ 106 2. The measures at issue are inconsistent with Article II:1(a) of the GATT 1994 .................................................................... 109 a. The legal standard under Article II:1(a) of the GATT 1994 .................................................................. 110 b. The legal analysis ........................................................ 111 3. The measures at issue are inconsistent with Article I:1 of the GATT 1994 ........................................................................ 111 a. The legal standard under Article I:1 of the GATT 1994 ............................................................................. 111 b. The relevant facts ........................................................ 113 c. The legal analysis ........................................................ 113 4. The measures at issue are inconsistent with Article XI:1 of the GATT 1994 ........................................................................ 116 a. The legal standard under Article XI:1 of the GATT 1994 ............................................................................. 116 b. The relevant facts ........................................................ 118 c. The legal analysis ........................................................ 119 5. The administration of the Presidential Proclamations and of the product exclusion mechanism is inconsistent with Article X:3(a) of the GATT 1994 ............................................... 119 a. The legal standard under Article X:3(a) of the GATT 1994 .................................................................. 120 b. The relevant facts ........................................................ 122 c. The legal analysis ........................................................ 125 6. Considerations regarding a possible defence by the United States on the basis of Article XXI of the GATT 1994 ........................................................................................ 130 a. The invocation of Article XXI of the GATT 1994 by the United States is subject to review by the Panel ...... 131 iv United States – Certain Measures on Steel and First Written Submission of Switzerland Aluminium Products WT/DS556 1 May 2019 b. The measures at issue cannot be justified by Article XXI of the GATT 1994 ....................................... 134 7. Conclusions ............................................................................
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