Introduction
Safeguard measures, under World Trade Organisation (‘WTO') law, are recognised as one of the trade defence instruments that enable member nations to take emergency action when increased imports cause or threaten to cause serious injury to a domestic industry. The legal foundation of safeguard measures is found in Article XIX of the General Agreement on Tariffs and Trade 1947, which has been carried forward to General Agreement on Tariffs and Trade 1994 (‘GATT'). Article XIX empowers WTO members to temporarily suspend their obligations or withdraw concessions where a sudden surge of imports, arising from ‘unforeseen developments' results in or threatens to result in serious injury to the domestic industry.
The Uruguay round of WTO negotiations had introduced the Agreement on Safeguards (‘AoS') with the objective of clarifying and operationalising Article XIX of the GATT. However, the AoS does not reproduce the reference to ‘unforeseen developments'. The omission has given rise to extensive debate in safeguard jurisprudence.
The central issue, explored in the following sections of this article, is whether members remain obliged to demonstrate ‘unforeseen developments' in order to invoke safeguard measures, or whether the omission of this phrase from the AoS has effectively displaced this obligation.
Legal framework
The conceptual and legal foundation of safeguard measures is rooted in Article XIX of the GATT. Article XIX:1(a) of GATT provides that where, as a result of unforeseen developments and obligations incurred under the GATT, including tariff concessions, a product is imported in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers of like or directly competitive products, the affected member may, to the extent necessary and for such time as required, suspend obligations or withdraw or modify concessions.
In parallel, Article 2(1) of the AoS, stipulates that a safeguard measure may be applied where a product is being imported in such increased quantities, absolute or relative to domestic production and under such conditions as to cause or threaten serious injury to the domestic industry producing like or directly competitive products. While the AoS was conceptualised to bring greater clarity and procedural discipline into application of Article XIX of the GATT, its omission of the phrase ‘unforeseen developments' raises interpretative questions as to whether this element of Article XIX remains operative.
Under the Indian legal framework, Section 8B of the Customs Tariff Act, 1975 (‘CT Act'), empowers the Central Government, after conducting an enquiry , to impose safeguard measures if it is satisfied that any article is being imported into India in such increased quantities and under such conditions as to cause or threaten serious injury to the domestic industry. Similar to the AoS, the CT Act replicates the structural elements of the safeguard provisions but explicitly does not refer to ‘unforeseen developments'. Consequently, the meaning and significance of this phrase have largely been shaped through judicial interpretation.
Interpretative analysis
The existence of this phrase of ‘unforeseen developments' in GATT Article XIX has been a subject of continuing debate. Prior to WTO, the test was rarely applied in practice and its omission from the AoS1 lead some to the view that Members were no longer required to demonstrate it when imposing safeguard measures. This uncertainty highlights the need for a structured interpretative framework to determine whether the clause ‘unforeseen developments' continues to operate as a binding condition under WTO law. To resolve this ambiguity, recourse to the principles of treaty interpretation under the Vienna Convention on the Law of Treaties (‘VCLT') is essential, as it facilitates the interpretation of Article XIX of the GATT and the AoS within their legal and contextual framework.
It is a trite law that the WTO agreements cannot be read in clinical isolation from public international law and its customary rules of interpretation. Article 3.2 of the Dispute Settlement Understanding (DSU) expressly provides that the WTO dispute settlement system shall clarify the provisions of the covered agreements in accordance with customary rules of interpretation of public international law. Article 31 of VCLT, which codifies such rules, therefore governs the interpretation of the GATT and other covered agreements under the WTO.
Article 31 of VCLT provides that treaties be interpreted in good faith, in accordance with their ordinary meaning and in light of their object and purpose. When this interpretative framework is applied to the AoS, it becomes evident that the omission of the phrase ‘unforeseen developments' from the text of the AoS cannot be construed as a deliberate negation of this substantive requirement. This is because the preamble to the AoS explicitly records its objective i.e. ‘to clarify and reinforce the disciplines of GATT 1994, and specifically those of its Article XIX … to re-establish multilateral control over safeguards and eliminate measures that escape such control.' The AoS was thus intended to clarify and operationalize Article XIX, not to displace the substantive preconditions embedded within it.
This is further reinforced by the text of Article 11.1(a) of the AoS, which provides that ‘a Member shall not take or seek any emergency action on imports of particular products as set forth in Article XIX of GATT 1994 unless such action conforms with the provisions of that Article applied in accordance with this Agreement.' Thus, the requirements of Article XIX, including the condition of ‘unforeseen developments,' remain applicable, but their application must be interpreted and implemented through the procedural and substantive disciplines of the AoS.
The drafting history of the AoS lends supports to the above interpretation . In June 1989, the Chairman of the Negotiating Group on Safeguards circulated a draft agreement which expressly required ‘an unforeseen, sharp and substantial increase in the quantity of such product being imported.' 2 This formulation was, however, omitted from the final text, thereby raising questions as to whether the omission reflected a deliberate exclusion. At the same time, the Chairman's remarks on the final draft clarified that the AoS ‘would not amend Article XIX or any other Article of the General Agreement,' thereby confirming that negotiators envisaged both provisions as operating concurrently. Accordingly, the omission of explicit language on unforeseen developments may not be construed as an intentional exclusion and instead leaves interpretative space for its continued application in harmony with Article XIX.
Thus, considering Article 31 of the VCLT, the omission of the phrase ‘unforeseen developments' from the AoS may not be a conscious exclusion. The ordinary meaning of Article 11.1(a), the object and purpose of the AoS and its drafting history collectively confirms that the requirement survives as an operative legal condition. Any contrary interpretation may amount to an impermissible amendment of Article XIX contrary to the principles of good faith interpretation enshrined in the VCLT.
Safeguard jurisprudence
The foregoing interpretative analysis, which establishes that the requirement of ‘unforeseen developments' continues to operate as an essential condition under WTO law, finds further affirmation in the safeguard jurisprudence. The origins of Article XIX were influenced by safeguard provisions in US trade treaties. The first dispute that addressed the ‘unforeseen development' test was US - Fur Felt Hats3, wherein the dispute was whether the United States could lawfully withdraw a tariff concession on women's fur-felt hats under GATT Article XIX, following a surge in imports allegedly caused by ‘unforeseen developments' (a post-concession changes in hat fashions). The Working Party, by majority, held that while fashion changes were not unforeseeable in themselves, the extent to which they transformed the competitive situation could not reasonably have been foreseen by the United States Authorities when the concession was negotiated in 1947. It therefore concluded that the increase in imports, arising from these developments in conjunction with the tariff concession, satisfied the requirements of Article XIX.
Subsequent panels revisited the role of the ‘unforeseen developments' clause. In Korea-Dairy Safeguard,4 the Panel held that the reference to ‘unforeseen developments' does not constitute an independent legal condition for the application of safeguard measures. Instead, it serves to explain the rationale for Article XIX, namely that concessions negotiated on the basis of trade expectations may require temporary adjustment in the face of unexpected circumstances. Similarly, in Argentina-Footwear Safeguard,5 the Panel observed that the AoS was intended to provide a comprehensive framework for the application of safeguard measures and that the negotiators had deliberately chosen not to include the ‘unforeseen developments' criterion. On this basis, the Panel concluded that compliance with the explicit requirements of the AoS is sufficient to satisfy the obligations under Article XIX and that separate examination of claims under Article XIX is not required.
However, the Appellate Body subsequently clarified this position in Appellate Body Report in Korea - Dairy Products case.6 It held that the clause ‘as a result of unforeseen developments and of the effect of the obligations incurred by a Member under this Agreement, including tariff concessions' in Article XIX:1(a) establishes an additional legal requirement that must be demonstrated when imposing safeguard measures. In doing so, the Appellate Body reversed the Panel's finding that the clause was merely explanatory, thereby reaffirming that compliance with the AoS alone is not sufficient and that the conditions of Article XIX must also be met.
Further, in the Indian context, the recent safeguard investigation concerning imports of ‘Non-Alloy and Alloy Steel Flat Products,7 wherein the Indian Authority noted that although neither the CT Act nor the Safeguard Rules referred to the requirement of unforeseen developments, under Article XIX:1(a) of GATT 1994, read with the AoS, the demonstration of such developments and their logical nexus with import increases causing injury remained necessary. The Authority clarified that the standard is not whether developments were unforeseeable in an absolute sense, but whether they were unexpected at the time commitments were undertaken, including accession to the WTO. It further recognised that unforeseen developments need not constitute separate legal conditions. Rather, they may be understood as circumstances arising from known facts or from the convergence of multiple factors, provided they were unexpected at the time of commitment.
Conclusion
The evolution of safeguard jurisprudence confirms that ‘unforeseen developments' remains a substantive condition under Article XIX of the GATT, notwithstanding its omission from the AoS. The omission cannot be treated as a silent amendment of the parent provision.
The WTO Panel Reports, Appellate Body jurisprudence, and findings of domestic authorities consistently affirm that the requirement of ‘unforeseen developments' has to be analysed. Instead, it functions as a substantive safeguard that ensures such measures remain an exceptional remedy, justified only in extraordinary circumstances and not as a convenient tool for disguised protectionism.
For India and other WTO Members, this imposes a heightened standard of diligence. Safeguard investigations cannot rely solely on quantitative surges, rather they must also demonstrate compliance with the ‘unforeseen developments' requirement. By retaining this substantive threshold, WTO law preserves the delicate balance between Members' rights to protect domestic industries and their obligations to safeguard the integrity of the multilateral trading system.
Footnotes
1. AoS was entered into as a package of WTO Agreements in 1994 when WTO was formed.
2.GATT, Multilateral Trade Negotiations – The Uruguay Round, Negotiating Group on Safeguards, ‘Safeguards – Draft Text by the Chairman', MTN.GNG/NG9/W/25 (27 June 1989); Zhou W, Fang MM. ‘Unforeseen Developments' Before and After US – Safeguard Measure on PV Products: High Standard or New Standard? World Trade Review. 2023;22(5):541-561. doi:10.1017/S1474745622000532
3. Working Party Report on the Withdrawal by the United States of a Tariff Concession under Article XIX of the General Agreement on Tariffs and Trade (US–Fur Felt Hats), GATT/CP/106, adopted 22 October 1951.
4. Panel Report, Korea - Definitive Safeguard Measures on the Imports of Certain Dairy Products, (Korea – Dairy Products) WT/DS98.
5. Panel Report, Argentina - Safeguard Measures on the Imports of Footwear (Argentina – Footwear) WT/DS/121.
6. See Appellate Body Report, Korea - Dairy Products case (WT/DS98/AB/R); Appellate Body Report, Argentina-Footwear case (WT/DS/121/AB/R)
7. Final Findings, Safeguard Investigation concerning imports of ‘Non-Alloy and Alloy Steel Flat Products (Case No. SG-01/2024) dated 16th August 2025.
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