   
  
WT/DS561/9  
 
31 January 2024  
(24-0771) Page: 1/10 
  Original: English  
 
TURKEY – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FROM THE UNITED STATES  
NOTIFICATION OF AN APPEAL  BY TÜRKIYE  UNDER ARTICLE 16.4 AND  ARTICLE  17  
OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE  
SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 2 0(1) OF THE  
WORKING PROCEDURES FOR APPELLATE REVIEW  
The following communication, dated 26 January 2024 , from the delegation of Türkiye , is being 
circulated to Members.  
 
_______________  
 
 
Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), Türkiye hereby notifies the Dispute Settlement Body of its decision 
to appeal to the Appellate Body certain issues of law and legal interpretations in the report of the 
panel established to h ear the case Türkiye — Additional Duties on Certain Products from the 
United  States  (WT/DS561/R) . 
Pursuant to Rule 20(1) of the Working Procedures for Appellate Review, Türkiye is simultaneously 
filing this Notice of Appeal with the Appellate Body Secretar iat (by submitting the document in the 
WTO Registry). For reasons that will be set out in greater detail in its submissions to the Appellate 
Body, Türkiye appeals and requests the Appellate Body to reverse, amend, or declare moot and of 
no legal effect the  following findings, conclusions, rulings, and recommendations of the Panel with 
respect to errors of law or legal interpretation contained in the Panel Report.  
1   THE PANEL INCORRECTLY INTERPRETED ARTICLE 11.1(C) OF THE AGREEMENT ON 
SAFEGUARDS  
1.1.  First, Türki ye appeals the Panel's legal interpretation of Article 11.1(c) of the Agreement on 
Safeguards.1 Article 11.1(c) provides, in relevant part, 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, and Multilateral Trade Agreements in Annex  1A other than this Agreement  …". 
The Panel read this language to mean that Article  11.1(c) "excludes from the scope of the Agreement 
on Safeguards measures that are sought, taken, or maintained by virtue of or under provisions of 
the GATT 1994 other than Article XIX " and "is not concerne d with the consistency  of such measures 
with the provisions of the GATT  1994 pursuant to which they are sought, taken, or maintained".2 
The finding that Article 11.1(c) is not concerned with the consistency of measures with the provisions 
of the GATT 1994  pursuant to which they are sought taken or maintained is in error, for the following 
reasons.  
1.2.  As the Panel itself acknowledged, the English term "pursuant to" in Article 11.1(c), on its own, 
can be read as denoting the consistency or conformity of a measu re with the relevant provision.3 
But when this phrase is read in the light of the Spanish -language version, as it must be, it becomes 
clear that this reading is the sole correct reading  of the term in Article 11.1(c). The Spanish version 
of Article 11.1(c ) uses the term "de conformidad con" . That phrase conveys an unambiguous 
 
1 Panel Report, paras. 7.50 – 7.62.  
2 Panel Report, para. 7.60. (emphasis added)  
3 Panel Report, para. 7.52.  WT/DS561/9  
 
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  requirement of substantive consistency or conformity .4 Article 33.4 of the Vienna Convention on the 
Law of Treaties (Vienna Convention) requires that the " meaning which best reconcil es [different 
language] texts … shall be adopted" . The Panel failed to grant the proper significance to this 
important principle of treaty interpretation .  
1.3.  The Panel itself even acknowledged that this meaning of the phrase "pursuant to" is confirmed 
by its  context in the Agreement on Safeguards . For example, Article 2.1 of the Agreement uses this 
phrase in the sense of consistency or conformity.5 However, the Panel still failed to reach the proper 
conclusion that Article 11.1(c) should similarly be read to  require consistency or conformity.  
1.4.  Türkiye, therefore, requests the Appellate Body to reverse the Panel's conclusions and the 
Panel's legal interpretations contained in paragraphs 7.50 -7.62 of the Panel Report. Moreover, this 
fundamental error in the Pane l's interpretation of Article 11.1(c) vitiates the Panel's analyses, 
findings, and conclusions in Sections 7.1.2.5.2, 7.1.3, 7.2, and 8 of the Panel Report, because the 
Panel applied an incorrect legal standard when applying Article 11.1(c) to the United S tates' 
measures. Türkiye, therefore, also requests the Appellate Body to  declare moot and of no legal effect 
the Panel's analyses, findings, and conclusions in these sections too.  
2   THE PANEL INCORRECTLY DETERMINED THAT THE UNITED STATES' SECTION 232 
MEASUR ES – AND CONSEQUENTLY ALSO TÜRKIYE'S ADDITIONAL DUTY MEASURES, 
WHICH WERE A DIRECT RESPONSE TO THE UNITED STATES' SECTION 232 MEASURES – 
WERE NOT COVERED BY ARTICLE XIX:3(A) AND ARTICLE 8.2 OF THE AGREEMENT ON 
SAFEGUARDS.  
2.1.  Next, Türkiye appeals the Panel's finding that the Agreement on Safeguards does not apply to 
the United States' measures under Section 232 of the 1962 Trade Expansion Act (Section 232)6 and 
that, as a consequence, Article  8.2 of the Agreement on Safeguards and Article  XIX:3(a) of the 
GATT  1994 also do not apply to Türkiye's additional duties measure7.  
2.2.  The Panel's finding is based on an improper interpretation of Article 11.1(c), as explained in 
Section 1 above. Because the Panel espoused an incorrect interpretation of Article 11.1(c), it s 
subsequent application of that legal standard to the facts of this case – and the Panel's ultimate 
finding concerning the applicability of Article XIX and the Agreement on Safeguards – are necessarily 
vitiated by that incorrect interpretation and must th erefore be reversed .  
2.3.  But even accepting arguendo  as correct the Panel's articulation of the legal standard under 
Article 11.1(c), the Panel applied its legal standard incorrectly. Its finding should, therefore, be 
reversed for this reason also. In other w ords, even under its legal standard, the Panel should have 
found that the United States' Section 232 measures were by their very nature safeguard measures 
and were, therefore, subject to Article XIX of the GATT 1994 and the Agreement on Safeguards (as 
opposed to Article XXI of the GATT 1994). The Panel should have also found that the measures 
imposed by Türkiye were a response to these safeguard measures and thus qualify as rebalancing 
measures under Article 8.2 of the Agreement on Safeguards and Article XI X:3(a) of the GATT 1994. 
In what follows, Türkiye expands on these additional legal errors in the Panel's analyses.  
2.1  The Panel granted improper deference to the designation of the measures under 
United States domestic law and in the United States' notificat ions to the WTO  
2.4.  The Panel's finding in paragraphs 7.80 and 7.81 is legally incorrect because the Panel granted 
almost total deference to the manner in which the United States labelled its measures for purposes 
of United States domestic law and for purposes  of the United States' notifications of these measures 
to the WTO.  
2.5.  The Panel spent the bulk of its analysis describing the details of United States' statutory law 
(in particular, Section 232), the procedures conducted by the United States Department of 
Commerce (USDOC) that led to the adoption of the measures at issue, the repeated references to 
"national security" (within the meaning of United States law) found throughout Section 232, the 
 
4 Türkiye’s response to Panel question 78.a.  
5 Panel Report, footnote 149.  
6 Panel Report, para. 7.80.  
7 Panel Report, para. 7.81.  WT/DS561/9  
 
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  content of the USDOC's determinations, and the Presidential Proclam ations that adopted the import 
restrictions at issue. This analysis constitutes the opening and dominant part of the Panel's analysis.8 
The Panel thus erroneously used an assessment based primarily on the characterization of the 
measure under domestic law to reach its conclusion that the measures were not, by their nature, 
safeguard measures .  
2.6.  The Panel's approach is incorrect. According to well -established WTO legal principles, 
characterization under domestic law cannot determine classification of measures for purposes of 
WTO law. S elf-designation under domestic law is, therefore, of secondary and limited relevance.9 
This is also in line  with the generally recognised principle that domestic law cannot serve as 
justification for a Member's  failure to observe its international obligations.10 The Panel's finding 
ignores these well -established principles. If the Panel's finding is allowed to stand, it creates the risk 
that WTO Members may in the future seek to ensure or avoid the applicability of specific WTO legal 
norms simply by strategically labelling their measures in a particular way, under domestic law. This 
is a fundamental departure fr om how WTO law has been understood and applied since 1995.  
2.7.  In addition to relying excessively on domestic law, the Panel also relied extensively on the 
United States' notification of its Section 232 measures to the WTO as "national security" measures, 
rather than as safeguard measures.11 As the Appellate  Body explained in prior disputes, "a degree 
of caution must be exercised in attributing decisive weight to characteristics that fall exclusively  
within  the control  of WTO Members , 'because otherwise Members  could determine by themselves 
which of the provisions would apply to their [measures] '".12 Clearly, the choice of a particular label 
for a measure notified to the WTO falls exclusively within the control of a WTO Member and, 
therefore, cannot be attribute d decisive weight when seeking to determine the legal nature of the 
measure for purposes of WTO law . In precisely this vein, the 1993 Decision on Notification 
Procedures, which may serve as context for the interpretation of the term "safeguard measures" in  
Article  1 of the  Agreement on Safeguards, also states explicitly that Members'  notifications are not 
dispositive of the legal nature of a measure for purposes of WTO law.13 
2.2  The Panel 's analysis of the substantive features of the United States' Section 232 
measures was incorrect  
2.8.  The Panel examined the substantive characteristics of the United States Section 232 measures 
only after it had effectively already decided that the measures were "national security" measures, 
rather than safeguard measure s, based solely on the labelling of those measures under United States 
domestic law and in the United States' notification of the measures to the WTO. The Panel examined 
this characteristic in the final part of its analysis, when it rebutted selectively so me of the arguments 
that Türkiye had presented concerning the substantive characteristics of the measures. The Panel's 
rebuttal of Türkiye 's arguments can be summarized, in essence, as stating that economic aspects 
may be present in a national security mea sure without compromising the status of that measure as 
a national security measure.14 
2.9.  This analysis is flawed. The Panel's analysis of Türkiye's arguments is selective and superficial 
and lacks any systematic assessment of the dominant nature, central cha racteristics, and content 
of the measure, as required by a long and well -established series of decisions by prior WTO panels 
and the Appellate Body.15 As Türkiye  established, the measures are import restrictions whose 
primary intended effect is to limit co mpetition in the United States' steel and aluminium market and 
thereby provide economic benefits to United States' producers of these products. This is their 
primary purpose. Any "national security" purpose is a secondary, additional feature that follows f rom 
the economic characteristics of the measure. The Panel failed to discuss these fundamental 
characteristics of the United States' measures and made no attempt to relate the question before 
 
8 Panel Report, paras. 7.63 -7.80.  
9 Appellate  Body Report, Indonesia  – Iron or Steel Produ cts, para.  5.60.  
10 See Article  27 of the Vienna Convention.  
11 Panel Report, para. 7.73.  
12 Appellate  Body Report, China  – Auto Parts, para.  178. (emphasis  added)  
13 Decision on Notification Procedures, adopted by the Committee on Trade Negotiations on 15 December 
1993, as annexed to the Final Act embodying the results of the Uruguay Round of multilateral trade negotiations, 
done at Marrakesh on 15 April 1994.  
14 Panel  Report, paras. 7.74 – 7.79.  
15 Appellate  Body Report, Indonesia  – Iron or Steel Products , paras. 5.60, 5.64.   WT/DS561/9  
 
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  the Panel to the Appellate Body's approach of identifying the ce ntral "constituent features" of a 
measure to determine whether it is a safeguard measure .  
2.10.  Similarly, the Panel never conducted an "objective assessment" of what may constitute a 
national security rationale for purposes of WTO law . The Panel simply took as  a given  that concerns 
about, and measures addressing, "rising levels of aluminium and steel imports" may qualify as 
concerns or measures addressing "national security" within the meaning of WTO law.  
2.11.  For instance, in paragraph 7.72, the Panel describes the question before it as whether the 
measures "were designed and expected to operate to address the threat to national security that 
the United States had determined to arise from rising levels of alumi nium and steel imports ".16 This 
wording implies that the Panel simply accepted that the United States was free to label "rising levels 
of aluminium and steel imports", and their subsequent impact on United States' steel and aluminium 
producers, as a "natio nal security" concern and was, therefore, free to label measures to address 
these rising imports as "national security" measures. It is obvious that, if Members were permitted 
to label imports of some product as a threat to national security, all increases  on imports could be 
described as "national security" concerns, and restrictions on those imports would automatically 
pass the test whether they are "designed and expected to operate" as measures relating to national 
security.  
2.12.  But that cannot be the correc t question relating to the essence and fundamental features of 
the measures . Instead of simply accepting the proposition that imports of a product can be deemed 
to be a "national security" concern, the Panel should have asked itself whether a WTO Member is  at 
liberty to consider, for purposes of WTO law, that rising levels of imports of a product and the impact 
of these imports on the economic health of an industry can, without more, give rise to national 
security concerns within the meaning of WTO law . Asking this question is part and parcel of the 
proper standard of review – that is, the "objective assessment " of the matter – that applies to the 
Panel's analysis under Article 11.1(c) of the Agreement on Safeguards .  
2.13.  The notions of "safeguard measures" and "essential security interests" (national security) are 
not, for purposes of WTO law, placeholders or empty vessels that a WTO Member can fill with 
meaning at its discretion. These are treaty terms and must, therefore, have a legal meaning. 
Measures falling  into one or the other category must have certain constituent features. This is, 
among other reasons, because the drafters created important rights for WTO Members affected by 
a safeguard measure, including, in particular, the authorization to adopt rebala ncing measures .  
2.14.   The Panel's approach, without any scrutiny, of permitting the United States to label its 
safeguard measures as "national security" measures, and thereby to escape the application of WTO 
safeguard disciplines, eviscerates these rebalancing  rights granted to other WTO Members. This loss 
of the right to take rebalancing measures is obviously not compensated by the possibility that the 
alleged national security measures may subsequently be declared inconsistent with Article XXI of 
the GATT 199 4. Even when a WTO Member in Türkiye's position can successfully challenge the United 
States' measures as national security measures, because the United States is unable to justify these 
measures under Article XXI of the GATT 1994, Türkiye has nevertheless  been deprived of its right 
to adopt rebalancing measures that the drafters of Article XIX and the Agreement on Safeguards 
considered vital for preserving the legitimate interests of WTO Members affected by safeguard 
measures.  
2.3  The Panel's balancing of the measures' national security objectives vs economic 
objectives is not even -handed  
2.15.  The Panel's analysis is also undermined by how the Panel balanced the two objectives of the 
measures .  
2.16.  First, the Panel states that "references to the economic welfare of dome stic industries … are 
in the context of the relationship of such economic welfare to the United States' national security."17 
Elsewhere, the Panel states that the economic aspects of the Section 232 measures "cannot be 
divorced from [their] background and context, which reflect the measures' national security 
 
16 Panel Report, para. 7.72.  (emphasis added)  
17 Panel Report, para. 7.76.  WT/DS561/9  
 
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  objectives …"18 This rebuttal can be summarized, in essence, as stating that economic aspects may 
be present in a national security measure without compromising the status of that measure as a 
national  security measure.19 
2.17.  But the Panel's reasoning can easily be turned on its head. It is equally possible to say that 
the references to national security  in the United States' measures must be seen in the "context of 
the[ir] relationship" to the economic wel fare of domestic industries  and that the alleged national 
security aspect of these measures "cannot be divorced from their background and context", which 
reflects the measures' economic  goals. Thus, the Panel's approach begs the very question it pretends 
to answer – what is the principal "context" of the measures?  
2.18.  If the two aspects of the measures cannot be divorced from each other, the Panel must as a 
legal matter determine the "central aspect"20 of the measure and provide a basic explanation of how 
it reached that conclusion. But the Panel does not provide that explanation. Instead, the Panel 
effectively assumes – without any explanation – that the national security element of the United 
States measures is the "central", dominant aspect . This does not re flect a correct analysis under 
Article 11.1(c), nor does it reflect a correct application of the standard of review . Moreover, the lack 
of proper and duly substantiated explanation of a core element of its ruling appears to be inconsistent 
with Article 12. 7 of the DSU, which requires a panel to provide a basic rationale underpinning the 
core elements of its ruling.  
2.19.  The Panel also failed to conduct a legally correct analysis when weighing the economic and 
national security rationales, because it failed to m ention, let alone analyse, various elements that 
Türkiye had highlighted in order to demonstrate that the defining characteristics of the measures – 
including the underlying policy objectives – were of an economic nature. Most prominently, the Panel 
failed to discuss or give proper weight to, among other things , the economic  rationale  of the USDOC 
steel and aluminium investigations, as well as their purpose  to save jobs in the 
United  States'  domestic market, as reflected in the USDOC Reports, the Memorandum initiating the 
Section  232 steel investigation, and var ious statements of senior United  States  government 
officials.21  
2.20.  As another example, and as T ürkiye also pointed out to the Panel, when the United  States 
exempted various countries from the Section  232 measures, it did so to a large extent based on 
economi c reasons for the exemptions, such as "the physical proximity of our respective industrial 
bases", "the robust economic integration between our countries", and "the export of steel articles 
produced in the United  States to Canada and Mexico". The Panel fai led even to mention these 
considerations, let alone analyse them.22  
2.21.  Similarly, when the United  States, on the one hand, and Canada and Mexico, on the other  
hand, settled their respective WTO disputes about the Section 232 measures, the settlements were 
conditioned almost exclusively on economic considerations. As the text of the settlement documents 
reveals, these economic considerations revolved around the prevention of the importation of unfairly 
subsidized and/or dumped aluminium and steel articles, and  monitoring for import surges. The Joint 
Statements issued by these parties did not even mention national security.23 These Joint Statements 
thus further confirm the economic nature of these parties'  disputes and of their ultimate settlements. 
To the exten t that any surges in unfairly subsidized and/or dumped aluminium and steel imports 
 
18 Panel Report, para. 7.77.  
19 Panel Report, paras. 7.74 – 7.79.  
20 Appellate  Body Report, Indonesia  – Iron or Steel Products , paras. 5.60, 5.64; Panel Report, US – 
Steel and Aluminium  Products  (Turkey) , paras.  7.111 and 7.114.  
21 See, inter alia, Türkiye's  first written submission in DS 564, para.  3.8, (Exhibit  TUR-40) ("The artificially 
low prices caused by excess capacity and unfairly traded imports suppress profits in the American steel industry, 
which discourages long -term investment in the industry and hinders efforts by American ste el producers to 
research and develop new and better grades of steel. If the present situation continues, it may place the American 
steel industry at risk by undermining the ability of American steel producers to continue investment and research 
and develop ment, and by reducing or eliminating the jobs needed to maintain a pool of skilled workers essential 
for the continued development of advanced steel manufacturing"). See also Türkiye's  first written submission in 
DS564, paras.  3.95, 3.103 . (Exhibit  TUR-40) 
22 Presidential Proclamation 9705, para.  10. (Exhibit  TUR-6) 
23 See Exhibits  TUR-48 and TUR -49. WT/DS561/9  
 
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  have also raised national security concerns in the United  States, these concerns are clearly of a 
subsidiary nature, and cannot be considered as a central aspect of the Sect ion 232 measures.  
2.22.  As a result, the Panel's juxtaposition of the economic and national security rationales cannot 
be described as legally correct or objective.  
2.4  Conclusion  
2.23.  In sum, the Panel's analysis under Article 11.1(c) and its assessment of the applicability of 
WTO covered agreements to the United States' Section 232 measures  constitutes legal error. The 
Panel incorrectly interpreted and applied Article 11.1(c) and faile d to apply the appropriate standard 
of review . Moreover, parts of the Panel's analysis fail to articulate the basic rationale of its findings, 
as required under Article 12.7 of the DSU.24 The Panel finding should therefore be reversed.25 
Instead, the Appel late Body should find that, even under the Panel's own legal standard under 
Article  11.1(c), the Panel should have found that the United States' Section 232 measures constitute 
safeguard measures and that, therefore, T ürkiye's additional duties qualify as rebalancing measures 
within the meaning of Article 8.2 and Article XIX:3(a) of the GATT 1994.  
3   THE PANEL INCORRECTLY FOUND THAT THE APPLICATION OF ARTICLES I AND II OF 
THE GATT 1994 IS NOT SUSPENDED IN RELATION TO TÜRKIYE'S MEASURE AND THAT 
TÜRKIYE'S MEAS URE IS THUS INCONSISTENT WITH THESE PROVISIONS  
3.1.  Türkiye  also appeals separately the Panel's finding that the application of Articles I and II of 
the GATT  1994 is not suspended in relation to T ürkiye's measure26 and that Türkiye has acted 
inconsistently with  both of these provisions.27 
3.2.  This finding flows directly and logically from the Panel's findings on the applicability of 
Article  XIX and the Agreement on Safeguards, which T ürkiye appeals in Sections 1 and 2 of this 
Notice of Appeal. Should the Appellate Body agree with T ürkiye that the Panel erred in finding that 
Article XIX and the Agreement on Safeguards are not applicable to the United States' underlying 
Section 232 measures – and by extension are also not applicable to T ürkiye's rebalancing measures 
– the Appellate Body should also reverse the Panel's finding that the application of Articles I and II 
of the GATT  1994 is not suspended in relation to T ürkiye's measures.  
4   THE PANE L ERRED IN FINDING THAT AT LEAST SOME OF THE PRODUCTS CLASSIFIED 
UNDER HEADINGS 870340100000, 870340900000, 870350000000, 870360100000, 
870360900000, AND 870370000000 IN TÜRKIYE'S APPLIED TARIFF SCHEDULE ARE 
BOUND UNDER TÜRKIYE'S WTO SCHEDULE  
4.1.  As a final po int, Türkiye appeals the treatment by the Panel of two specific tariff lines with 
respect to which the parties disagreed on whether a tariff binding existed. The Panel improperly 
found, for those two tariff lines, that Türkiye has acted inconsistently with  Articles II:1(b) and II:1(a) 
of the GATT 1994, by imposing duties that exceed the tariff binding on products covered by these 
two tariff lines.  
4.2.  By way of background, Türkiye's measures concerned a total of 479 tariff lines under Türkiye's 
2017 domestic ap plied tariff schedule. These 479 tariff lines are set out in Annex E -1 of the 
Addendum of the Panel's Report .  
 
24 Should the Appellate Body consider that the nature of the Panel's error in assessing the nature of the 
United States’ Section 232 measures is such as to be pro perly challengeable exclusively under Article 11 of the 
DSU, as a failure to conduct an objective assessment of the matter, Türkiye also presents an appeal under 
Article 11 of the DSU.  
25 See Sections 7.1.2.5.2, 7.1.3, 7.2, and 8 of the Panel Report.  
26 Panel Report, para. 7.81.  
27 Panel Report, paras. 7.112 -113, 7.130, 7.133, 7.138, 7.142, 7.146, 7.149, 7.150, 7.151 -7.153, and 
8.1-8.3. WT/DS561/9  
 
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  4.3.  With respect to 269 of these 479 tariff lines, the Panel found that no tariff binding existed and 
that, therefore, Türkiye had not violated Artic les II:1(a) and II:1(b).28 
4.4.  With respect to the remaining 210 tariff lines, the Panel found that the United States had 
demonstrated that Türkiye's additional duties measure resulted in the imposition of ordinary customs 
duties on imports from the United Sta tes in excess of the rates set forth in Türkiye's bound 
Schedule.29  
4.5.  This finding with respect to 210 tariff lines has three parts .  
4.6.  First, with respect to 201 tariff lines, the Panel stated that the parties were in agreement that 
a binding existed. Theref ore, the Panel did not provide a detailed analysis . Subject to 
paragraphs  4.14 to 4.21 below, Türkiye does not appeal this finding.30  
4.7.  Second, with respect to the remaining nine31 tariff lines, the Panel conducted a more detailed 
analysis that is divided i nto two sections . In the first of these two sections (Section 7.2.3.2.2.1), the 
Panel examined more closely a set of tariff lines for which the Parties agreed that a binding existed, 
but disagreed – in the early parts of the panel process – as to what was Türkiye 's applied  MFN rate 
during the period relevant to this dispute.32 The Panel accepted that the applied rate was as argued 
by Türkiye and found that, for all of these tariff lines, a violation of Article II:1(a) and II:1(b) existed .  
4.8.  In the following section 2.3.2.2.2, concerning the second set of tariff lines – a total of six tariff 
lines – the Panel was confronted with a disagreement between the parties as to whether these tariff 
lines were bound under Türkiye's  bound GATT Schedule .33 These six tarif f lines are set out in 
Türkiye's applied tariff schedule and, like all other tariff lines, were reproduced in Annex E -1 to the 
Panel Report . These six tariff lines – just like the entire applied tariff schedule of Türkiye at the time 
of the panel proceedin gs – reflect the 2017 version of the Harmonized System  nomenclature . These 
six tariff lines are the following:  
a) 8703.4010.0000   
b) 8703.4090.0000   
c) 8703.5000.000 0  
d) 8703.6010.0000   
e) 8703.6090.0000   
f) 8703.7000.000 0 
4.9.  The United States argued that these six tariff lines were bound at 19 per cent. In contrast, 
Türkiye argued that these tariff lines were unbound.34 The origin of the parties' disagreement was 
that Türkiye's current GATT schedule of concessions  is based on the 2002 Harmonized System  
nomenclature,  whereas Türkiye's domestic applied tariff schedule  during the time period relevant 
 
28 However, the Panel found a violation of Article I of the GATT 1994. See Panel Report, 
paras.  7.130 -7.131.  
29 Panel Repo rt, paras. 7.150 and 8.1.c.i.  
30 Türkiye does not appeal this finding with respect to those tariff lines for which the parties were in 
agreement about the existence of a tariff binding . However, as explained below in paragraphs 4.14 – 4.21, the 
Panel appear s to have erroneously included within this set of allegedly undisputed tariff lines two tariff lines with 
respect to which the parties were not in agreement . As a separate issue, with respect to the specific number of 
201 tariff lines, Türkiye notes that t he Panel Report is internally inconsistent, in that it alternatively characterizes 
the number of tariff lines subject to this finding as 199 (in paragraph 7.130) or as 201 (in paragraph 7.150). The 
difference between these two figures is not explained anyw here in the Panel Report.  
31 The number 9 stated in the Panel Report (paras. 7.150 and 8.1.c .ii) is in reality incorrect and reflects 
one of several errors and internal inconsistencies in the Panel Report . The number of tariff lines that the Panel 
examined in greater detail was in reality 11. In paragraph 7.131, at the outset of its analysis, the Panel lists 11 
tariff lines to be examined . The Panel indeed examines these 11 tariff lines (5 tariff lines in Section 7.2.3.2.2.1 
and 6 tariff lines in Section 7.2 .3.2.2.2) and concludes for all of these 11 tariff lines that a binding exists and 
that a violation of Articles II:1(a) and II:1(b) has occurred. However, in paragraphs 7.150 and 8.1.c .ii, two of 
these 11 tariff lines disappear, and the Panel refers only t o 9 tariff lines. There is no explanation for the two 
missing tariff lines .  
32 The United States had argued that an MFN rate of 58.5 per cent applied, whereas Türkiye indicated 
that the correct MFN rate was a combined tariff of 9 per cent plus a specific a mount . See Panel Report, 
para. 7.132.  
33 Panel Report, paras. 7.130 -7.131.  
34 See Panel Report, Section 6.2.1.  WT/DS561/9  
 
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  for this proceeding, as already mentioned above, was based on the 2017 Harmonized System  
nomenclature. The parties held different views concerning the correspondence betwee n 
differently -numbered tariff lines in these two HS versions.  
4.10.  This question was, of course, of fundamental importance for the Panel's analysis of the United 
States' claim of a violation of Articles II:1(b) and II:1(a) of the GATT 1994. If the tariff lines at issue 
were unbound, no violation under Article II:1 could exist for these tariff lines, regardless of the level 
of the duty imposed by Türkiye. Conversely, if these tariff lines were bound as alleged by the United 
States, Türkiye's applied duty would be  in excess of these tariff bindings and thus in violation of 
Article II:1(b) and II:1(a).  
4.11.  In its Interim Report, the Panel "analysed these tariff lines on the basis that the bound rate 
is 19 per cent", effectively agreeing with the assertions that the Unit ed States had made during the 
panel proceedings.35 In response, Türkiye pointed out that the Panel's finding – that is, that the tariff 
lines were bound and that the level of binding was 19 per cent – was incorrect as it did not rest on 
any substantive ana lysis by the Panel. Rather, the Panel had merely made an assumption, and the 
basis for the Panel's assumption that the tariff lines were bound and that the level of binding was 
19 per cent was simply a recitation of the Parties' arguments and a conclusory,  unsubstantiated 
statement that "Türkiye has not provided adequate evidence to justify its request that the Panel 
consider these tariff lines to be unbound".36 Türkiye explained that a WTO panel is not entitled to 
make findings on an issue that is disputed  by the parties without providing a basic analysis and 
explanation for its finding. This is especially so, given that this issue was not an issue of fact, but 
rather an issue of law, because it concerned the interpretation of a part of the WTO Agreement, i .e., 
Türkiye's GATT schedule of concessions .  
4.12.  In any event, Türkiye argued that the Panel should not engage in a substantive analysis of 
this issue, and should refrain from making a ruling on these specific tariff lines under Article II:1. 
This was because , by ruling on the substance of this disagreement, the Panel could improperly 
prejudge the currently ongoing WTO Harmonized System transposition process, through which 
Türkiye's WTO schedule is being transposed from the 2002 version of the Harmonized Syste m to the 
2007 version. Türkiye submitted that the institutionally mandated division of tasks between WTO 
panels and a dedicated HS transposition process, managed by the WTO Member at issue and by the 
WTO Secretariat, meant that the Panel should not rule on  the substance of this matter.  
4.13.  In the Final Report sent to the parties on 1 December 2023 – that is, the version of the Final 
Report that has not yet been circulated to the rest of the WTO membership and the public – the 
Panel "reject[ed] Türkiye's request  to leave the question regarding the determination of the bound 
rates for the abovementioned [sic] six tariff lines unresolved".37 At the same time, the Panel accepted 
Türkiye's concern that the Panel had failed to provide any substantive analysis for its conclusions in 
the Interim Report. In its Final Report, the Panel set out a detailed examination of the question 
whether for (some or all of the) products covered by the six tariff lines, a tariff binding existed.38 It 
is worth noting that the parties firs t saw the Panel's analysis on this issue in the Final Report sent 
to the parties, at which point, in principle, no further comments by the parties are envisaged.  
4.14.  In this new analysis, presented to the parties for the first time in the Final Report, the Pan el 
committed an error by analyzing not the six tariff lines that were actually contested by the parties . 
Instead, due to an apparent clerical error in the Panel's listing of the tariff lines, the Panel analysed 
a set of six tariff lines that corresponds on ly partially to the six contested tariff lines . Specifically, 
the Panel analysed tariff lines (a), (b), (c), and (d) as listed in paragraph 4.8 above . Instead of 
 
35 Interim Report, para. 7.132.  
36 Interim Report, para. 7.132.  
37 Final Report, para. 6.26.  
38 Final Report, para. 6.26. Türkiye notes that the Panel has phrased its finding as being "to the extent" 
that these tariff lines apply to products subject in T ürkiye's bound Schedule to a bound rate. Read in the light of 
the entirety of the Panel’s finding, this phrase is not to be read as a mere arguendo  assumption  that the tariff 
lines at issue cover products subject to a bound rate. Rather, the phrase "to the extent" was used by the Panel 
in the sense that the Panel found that the tariff lines at issue cover products some of which are subject to a 
bound  rate of 19 and 20 per cent in T ürkiye's bound Schedule and some of which are unbound. This reading 
appears to be confirmed by the entry 19/20/U for the relevant tariff lines in Annex E -1 of the Addendum of the 
Panel's Report. T ürkiye continues to consider  it would have been more appropriate for the Panel to refrain from 
ruling on this issue, which remains subject to the dedicated HS transposition process, which is managed by 
Türkiye and by the WTO Secretariat .  WT/DS561/9  
 
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  analyzing also tariff lines (e) and (f) as listed in paragraph 4.8 above, however, the Panel a nalysed 
two entirely different tariff lines and found that these two tariff lines were subject to a tariff binding.39  
4.15.  The finding on the two different lines was entirely superfluous, because Türkiye had never 
argued that these two tariff lines were unboun d. Therefore, the Panel could have simply included 
these tariff lines in its finding on those tariff lines for which the Panel did not provide a detailed 
analysis, because the Parties agreed that these tariff lines were bound.40 But a more problematic 
consequence of this error was that the Panel failed to analyse items (e) and (f), which were actually 
in dispute between the parties.  
4.16.  Türkiye pointed out this error to the Panel in its comments on the Final Report, before the 
Final Report was circulated to the  WTO Members and the public. There can be no doubt about which 
were the precise six tariff lines that were in dispute, because these six tariff lines are listed explicitly, 
with their complete codes, in the Panel's Interim Report .41 Moreover, even the Pane l's Final Report 
to the Parties  listed the correct six tariff headings in one of the headings, even though the substance 
of the Panel's analysis pertained to a different (incorrect) set of six tariff lines.  
4.17.  In response to Türkiye's comments, the Panel made certain minor changes to the report that, 
however, failed to address the fundamental problem. In its Final Report circulated to all WTO 
Members and to the public, the Panel merely adjusted the text of the relevant heading to match its 
incorrect substa ntive analysis. However, the Panel did not change the underlying analysis of its 
findings. The Final Report still lacks any analysis with respect to tariff lines (e) and (f) and instead 
contains redundant findings with respect to two others.  
4.18.  One of the con sequences of the Panel's focus on an incorrect (partially correct) set of six tariff 
lines is that the Panel has made a finding of violation with respect to two tariff lines (items (e) and 
(f) mentioned in paragraph 4.8 above) whose tariff binding was cont ested between the parties, but 
that the Panel did not analyse specifically .  
4.19.  The Panel appears to have included tariff lines (e) and (f) among the supposedly uncontested 
tariff lines that the Panel did not analyse in detail, simply stating in a conclusory manner that, for 
these tariff lines, a tariff binding existed and that this tariff binding has been exceeded. This approach 
was acceptable for the tariff lines that were not in dispute. However, this approach is not acceptable 
for tariff lines (e) and (f).  A Panel is not permitted to simply ignore a disagreement between the 
parties on a central issue that underpins the interpretation of Türkiye's GATT schedule of concessions 
and, consequently, underpins the finding of violation.  
4.20.  This finding is inconsisten t with Articles II:1(a) and II:1(b) of the GATT 1994 . Moreover, 
because the Panel failed to articulate the reasons why it considered tariff lines (e) and (f) to be 
bound, the Panel also appears to have acted inconsistently with Article 12.7 of the DSU, whi ch 
requires a panel to explain the basic rationale for its findings.42  
4.21.  For all of above reasons, Türkiye requests the Appellate Body to reverse the Panel's ruling for 
tariff lines 8703.6090.0000  and 8703.7000.000 0 under Articles II:1(a) and II:1(b) of the  
GATT  1994.43 
 
39 These two tariff lines were 870333909011 an d 870333909019 . See Panel Report, paras. 7.135 – 7.138.  
40 Türkiye recalls that, as already described in footnotes 30 and 31, the Panel analysed these two tariff 
lines in detail and found that a violation of Article II:1(a) and II:1(b) existed, but subseque ntly omitted these 
tariff lines from the summary of its findings in paragraph 7.150 and the Conclusions section of its report in 
paragraph 8.1.c .ii. The Panel did not provide any explanation for this omission . Türkiye also recalls that, although 
the Panel had previously stated that it would examine a total of eleven tariff lines (paragraph 7.131) and indeed 
examined eleven tariff lines, it referred only to "nine" tariff lines in paragraphs 7.140 and 8.1.c .ii and failed to 
mention the two undisputed tariff l ines.  
41 Interim Report, para. 7.131.  
42 Should the Appellate Body consider that the nature of the Panel's error and lack of analysis with respect 
to tariff lines (e) and (f) is such as to be properly challengeable exclusively under Article 11 of the DSU, as a 
failure to conduct an objective ass essment of the matter, Türkiye also presents an appeal under Article 11 of the 
DSU. 
43 See Panel Report, heading 7.2.3.2.2.2, as well as paras. 7.130 -7.131, 7.134, 7.150, 7.151 -152, 7.153, 
and 8.1.c.ii.  WT/DS561/9  
 
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  5  CONCLUSION  
5.1.  For all these reasons, Türkiye respectfully requests the Appellate Body to reverse the 
interpretations and findings of the Panel identified in this Notification of Appeal. These grounds for 
appeal are without prejudice to the more detailed arguments to be s et forth in the Türkiye's appellate 
submission during the appeal.   
5.2.  In initiating this appeal, pursuant to Article 16.4 of the DSU and Rule 20(1) of the Working 
Procedures for Appellate Review, Türkiye is aware that, as a matter of fact, the Appellate Body is, 
for the time being, unable to function, given that there are currently no Appellate Body Members to 
constitute a division to hear the Türkiye's appeal.  
5.3.  In these exceptional circumstances, and in the interests of fairness and orderly procedure in 
the co nduct of the appeal, in accordance with Rules 16(1) and 16(2) of the Working Procedures for 
Appellate Review, Türkiye  will await further instructions from the division, when it may eventually 
be composed, or the Appellate Body, regarding any further steps to be taken by Türkiye  in this 
appeal. Türkiye  thus reserves the right to submit an appellant submission. Alternatively, this 
document is deemed to also be Türkiye's appellant's submission.  
__________  