International rules on safeguard or escape clause measures developed hand-in-hand with their development in the United States. Indeed, in 1947 the United States insisted on an escape clause provision, modelled on its own, within the General Agreement on Tariffs and Trade (GATT). The United States proposal is embodied in Article XIX of GATT, which remains in force to this day along with important new disciplines under the WTO Safeguards Agreement, which came into force in 1995.

Article XIX established certain steps to be taken before an escape clause measure can be imposed. In early practice, it offered protection against import surges following trade concessions that caused unexpected economic dislocation (i.e. serious injury). In 2001, WTO reconfirmed the requirement that the serious injury from increased imports must be unforeseen, but over time the need to identify the link between injury and a particular trade concession was discarded. The Safeguards Agreement enhanced the disciplines of Article XIX, most significantly by prohibiting use of the 'grey measures' such as voluntary export restraints (VERS) and orderly marketing agreements that emerged over time outside the scope of Article XIX disciplines. Examples of such 'grey measures' include the United States steel voluntary restraint agreements with various countries in the 1970s, 1980s and early 1990s; its steel trigger price mechanism of the 1970s; and its automotive voluntary restraint agreement with Japan in the 1980s.

Because of the United States role in helping to shape Article XIX, United States domestic law is similar in many respects to the language of Article XIX and the WTO Safeguards Agreement. In key areas, however, there are significant points of tension where United States law either omits wording or differs from Article XIX and the Safeguards Agreement. The result has been a handful of important dispute settlement rulings at WTO- safeguards involving wheat gluten and lamb meat - finding United States escape clause actions to be inconsistent with its international obligations. Over time, this may lead to amendment of United States law, or a change in practice or procedure, and it remains important for parties involved in Section 201 actions to appreciate how United States law is different and how the United States Government copes with WTO challenges to its practice.

Source: Business Guide to Trade Remedies in the United States: Anti-dumping, countervailing and safeguards legislation practices and procedures