Consentia on Multidisciplinary Research

‘Like Products’: The WTO Agreements Conundrum

The General Agreement on Tariffs and Trade 1994 (GATT) is a legal instrument primarily concerned with products and it does not appear to be surprising that problems of identifying product similarities as well as problems of classifying and describing products are encountered with some frequency. The interpretation of the phrase “like product (I:1, III:2, III:4, IX:1, XVI:4 and XIX:1, GATT),” categorically, gets muddled up as the phrase has been used in the GATT terminology in varying ways such as “like commodity” (Article VI:7, GATT) or “like domestic products” (Article II:2 (a); VI:I (a), VI:1 (b); Xl:2(c); Xlll:l, and XII:4, GATT), “like merchandise” (Article VII:2, GATT) and “like competitive products” (Article XIX, GATT). The term is also a key concept in the Agreement on Subsidies and Countervailing Measures, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994  (the “Anti-Dumping Agreement”), the Agreement on Safeguards and other covered agreements of the World Trade Organisation.  In some cases, such as in Article 2.6 of the Anti-Dumping Agreement, the term is given a specific meaning to be used “[t]hroughout [the] Agreement”, while in others, the situation remains unclear.

Due to the excessively vast nature of the term by itself, the present article focuses primarily on the interpretation and application of the term vis-à-vis Article I (Most-Favoured Nation Treatment) and Article III (National Treatment) of GATT, 1994, the two concepts which form the pillars of GATT and the subject-matter of majority of the disputes referred to the Dispute Settlement Body.

Absence Of Definition Of The Term ‘Like Products’

The concept of ‘like products’ forms the linchpin of the GATT/WTO system. Its two central principles, Most-Favoured Nation Treatment and National Treatment critically dependent on this concept. However, the startling fact remains, that irrespective of its primacy, the term doesn’t find any ‘precise’ definition in any of the covered agreement to be applied throughout the GATT jurisprudence. Besides, the English word ‘like’ finds no perfect counterpart in French or Spanish translations of the texts of the agreements. The French version of GATT speaks of ‘equivalent,’ which actually expresses something different again since it derives from ‘value’ rather than focusing, as the word ‘like’ does, on the inherent characteristics of a product. Consequently, ‘equivalent’ expresses more clearly the valuation of products, and of distinctions between products, by certain economic actors. [1]

Kinrad alleges that the drafters of the original GATT text (in practice those drafting the Havana Charter) were presumably well aware of the ambiguities of the term ‘like’ and of the inherent dangers in using such an ambiguous term in passages so critical to the text. Irrespective of the same, they chose the word ‘like’ precisely because its ambiguities reflected a problem in the real world. Some products are equivalent but not like (for example, whisky and sake). Some products are like but not equivalent (for example, wild caught salmon and the ranched version). In the modern trading system, some products are identical but not alike (for example, genetic and branded pharmaceuticals). In short, the term ‘like’ requires careful interpretation to ensure that GATT does not produce unacceptable results.[2]

But, more often than not such an ambiguity, which though tactfully created by the drafters, leads to a problem being created. For instance, the lack of definition to the expression “like product” was discussed by a Panel while considering a claim by Brazil against Spain which under a royal decree had divided unroasted coffee into five tariff classifications: “Columbia Mild”, “Other Mild”, “Unwashed Arabica”, “Robusta” and other. The first two were duty free and the latter three were subjected to 7% ad-valorem duty. The Panel held that, although there was no obligation under GATT to follow any particular system for classifying goods and that a contracting party had the right to introduce in its customs tariff new positions or sub-divisions, yet on examination the it found that unroasted, non-decaffeinated coffee beans in the Spanish Customs Tariff should be considered as “like products” for the purposes of Article I:I. Further the Panel held that Brazil exported to Spain mainly “unwashed Arabica” and as they were like products, tariff regime was violative of Article II of GATT.[3]

Use Of Dictionary Meaning Of Term ‘Like’ To Solve Ambiguity

According to the Oxford dictionary, the term “like” means: “Having the same characteristics or qualities as some other … thing; of approximately identical shape, size, etc., with something else; similar.”[4] This meaning suggests that “like” products are products that share a number of identical or similar characteristics or qualities.  The reference to “similar” as a synonym of “like” also echoes the language of the French version of Article III:4, “produits similaires”, and the Spanish version, “productos similares”, which, together with the English version, are equally authentic.[5]

However, the Appellate Body in Canada-Civilian Aircrafts Case while affirming its earlier jurisprudence held that, “dictionary meanings leave many interpretive questions open”[6] and thus ought not to be adopted per se.  It was provided that the dictionary definition does not resolve three issues of interpretation.  First, it does not indicate  which characteristics or qualities are important  in assessing the “likeness” of products under Article III:4.  For instance, most products will have many qualities and characteristics, ranging from physical properties such as composition, size, shape, texture, and possibly taste and smell, to the end-uses and applications of the product.  Second, it provides no guidance in determining the degree or extent to which products must share qualities or characteristics  in order to be “like products” under Article III:4.  Products may share only very few characteristics or qualities, or they may share many.  Thus, in the abstract, the term “like” can encompass a spectrum of differing degrees of “likeness” or “similarity”.  Third, the dictionary definition of “like” does not indicate from whose perspective  “likeness” should be judged.  For instance, ultimate consumers may have a view about the “likeness” of two products that is very different from that of the inventors or producers of those products.[7] Therefore, dictionary meaning of the term was not accepted by the Appellate Body. Hence the problem of ambiguity caused due to the imprecise nature of the term still remained.

Relativity Of The Concept Of ‘Like Products’

The Dispute Settlements Body predominantly adopts the view in each of the provisions where the term “like products” is used, the term must be interpreted in light of the context, and of the object and purpose, of the provision at issue, and of the object and purpose of the covered agreement in which the provision appears.  Accordingly, the Appellate Body observed in an earlier case concerning Article III:2 of the GATT 1994: “… there can be  no one precise and absolute definition of what is “like”.  The concept of “likeness” is a relative one that evokes the image of an accordion.  The accordion of “likeness” stretches and squeezes in different places as different provisions of the  WTO Agreement  are applied.  The width of the accordion in any one of those places must be determined by the particular provision in which the term “like” is encountered as well as by the context and the circumstances that prevail in any given case to which that provision may apply. …” [8]

Besides, in the case of Japaan-Alcoholic Beverages II, the Panel discussed whether the term “like products” can be interpreted differently between GATT provisions, with a focus on the relationship between Article III:2, first sentence and Article III:4 and the Appellate Body, while agreeing with such an interpretation, observed that: “The Panel noted that the term ‘like product’ appears in various GATT provisions. The Panel further noted that it did not necessarily follow that the term had to be interpreted in a uniform way. In this respect, the Panel noted the discrepancy between Article III:2, on the one hand, and Article III:4 on the other: while the former referred to Article III:1 and to like, as well as to directly competitive or substitutable products (see also Article XIX of GATT), the latter referred only to like products. If the coverage of Article III:2 is identical to that of Article III:4, a different interpretation of the term ‘like product’ would be called for in the two paragraphs. Otherwise, if the term ‘like product’ were to be interpreted in an identical way in both instances, the scope of the two paragraphs would be different. This is precisely why, in the Panel’s view, its conclusions reached in this dispute are relevant only for the interpretation of the term ‘like product’ as it appears in Article III:2.”[9]

With regard to the problem of determining product likeness, many GATT/WTO panels and scholars have put forward various criteria and approaches throughout the long history of international trade law. These criteria and approaches can be summarized into two distinct schools of thoughts: the traditional “Border Tax Adjustment” and the “Aim and Effect Approach.”

The Border Tax Adjustment Approach

The Report of the Working Party on Border Tax Adjustments[10] outlined an approach for analyzing “likeness” that has been followed and developed since by several panels and the Appellate Body.[11]  This approach has, in the main, consisted of employing four general criteria in analyzing “likeness”:

(i)            the physical properties of the products;

(ii)          the extent to which the products are capable of serving the same or similar end-uses;

(iii)        the extent to which consumers perceive and treat the products as alternative means of performing particular functions in order to satisfy a particular want or demand;  and

(iv)        the international classification of the products for tariff purposes. [12]

These criteria are, however, the Appellate Body pointed out are simply tools to assist in the task of sorting and examining the relevant evidence.  They are neither a treaty-mandated nor a closed list of criteria that will determine the legal characterization of products.  In addition, although each criterion addresses, in principle, a different aspect of the products involved, which should be examined separately, the different criteria are interrelated.  For instance, the physical properties of a product shape and limit the end-uses to which the products can be devoted.  Consumer perceptions may similarly influence – modify or even render obsolete – traditional uses of the products.  Tariff classification clearly reflects the physical properties of a product.[13]

Further, it also observed that, “having adopted an approach based on the four criteria set forth in Border Tax Adjustments,  the Panel should have examined the evidence relating to each  of those four criteria and, then, weighed  all  of that evidence, along with any other relevant evidence, in making an  overall  determination of whether the products at issue could be characterized as “like”.”[14] Therefore, all the above criteria ought to be given equal weightage and be considered in cumulation.

Physical Properties

Although not decisive, the extent to which products share common physical properties may be a useful indicator of “likeness”.  Furthermore, the physical properties of a product may also influence how the product can be used, consumer attitudes about the product, and tariff classification.[15]

End-Uses And Consumer Tastes And Preferences

While examining the second and third criteria, the AB noted that these two criteria involve certain of the key elements relating to the competitive relationship between products:

first, the extent to which products are capable of performing the same, or similar, functions (end-uses), and,

second, the extent to which consumers are willing to use the products to perform these functions (consumers’ tastes and habits).

The predominance of the consumer perspective in WTO law was recently affirmed in the Asbestos case. The Appellate Body found that health risks inherent in the products at issue might have an effect on consumers’ habits. The underlying rationale was that a health risk associated with one product would cause consumers to consider it ‘unlike’ from an otherwise identical product. Accordingly, the Appellate Body found the evidence to be insufficient to demonstrate that the products in question were ‘like’.[16]

Also, in EC – Asbestos itself, the Appellate Body found that the panel had not provided a complete picture of the various end‑uses of the different fibres at issue, because its analysis was based on a “small number of applications” for which the products were substitutable, and because it had failed to examine other, different end‑uses for the products.  The Appellate Body noted that it is only by forming a complete picture of the various end‑uses of a product that a panel can assess the significance of the fact that products share a limited number of end‑uses.[17] An analysis of end‑use should be comprehensive and specific enough to provide meaningful guidance as to whether the products in question are like products.[18]

Furthermore, while assessing the degree of substitutability between products rather than their end-uses, the panel in Korea-Alcoholic Beverages found it not necessary that consumers would permanently change drink preferences. ‘The willingness to occasionally substitute one product for another when there is a relatively high frequency of purchase should be sufficient.[19]

In order to determine whether products are like under Article 2.1 of the TBT Agreement (couched in terms similar to those of Article III:4 GATT 1994), it is not necessary to demonstrate that the products are substitutable for all consumers or that they actually compete in the entire market.  Rather, if the products are highly substitutable for some consumers but not for others, this may also support a finding that the products are like.  In Philippines – Distilled Spirits, the Appellate Body considered that the standard of “directly competitive or substitutable” relating to Article III:2, second sentence, of the GATT 1994 is satisfied even if competition does not take place in the whole market but is limited to a segment of the market.  The Appellate Body found that “it was reasonable for the [p]anel to draw, from the Philippines’ argument that imported distilled spirits are only available to a ‘narrow segment’ of its population, the inference that there is actual competition between imported and domestic distilled spirits at least in the segment of the market that the Philippines admitted has access to both imported and domestic distilled spirits”.[20]  In that same dispute, the Appellate Body found that Article III:2, second sentence, does not require that competition be assessed in relation to the market segment that is most representative of the “market as a whole”, and that Article III of the GATT 1994 “does not protect just some instances or most instances, but rather, it protects all instances of direct competition”.[21]

Although the Appellate Body’s finding in Philippines – Distilled Spirits concerned the second sentence of Article III:2 of the GATT 1994, the AB considered this interpretation of “directly competitive or substitutable products” to be relevant to the concept of “likeness” in Article III:4 of the GATT 1994 as well.[22]

For such analysis of the ‘likeness’ criteria, the following definition of the term ‘competitive’ as given in in US — Cotton Yarn might be of relevance: “According to the ordinary meaning of the term “competitive”, two products are in a competitive relationship if they are commercially interchangeable, or if they offer alternative ways of satisfying the same consumer demand in the marketplace. “Competitive” is a characteristic attached to a product and denotes the capacity of a product to compete both in a current or a future situation. The word “competitive” must be distinguished from the words “competing” or “being in actual competition”. It has a wider connotation than “actually competing” and includes also the notion of a potential to compete. It is not necessary that two products be competing, or that they be in actual competition with each other, in the marketplace at a given moment in order for those products to be regarded as competitive. Indeed, products which are competitive may not be actually competing with each other in the marketplace at a given moment for a variety of reasons, such as regulatory restrictions or producers’ decisions. Thus, a static view is incorrect, for it leads to the same products being regarded as competitive at one moment in time, and not so the next, depending upon whether or not they are in the marketplace.”[23]

Additionally, a distinction also ought to be made herein between the definition and interpretation of the term “like product” and “directly competitive or substitutable product.”

In Korea — Alcoholic Beverages[24] also the Appellate Body observed that: “The term ‘directly competitive or substitutable’ describes a particular type of relationship between two products, one imported and the other domestic. It is evident from the wording of the term that the essence of that relationship is that the products are in competition. This much is clear both from the word “competitive” which means “characterized by competition”, and from the word “substitutable” which means “able to be substituted”. The context of the competitive relationship is necessarily the marketplace since this is the forum where consumers choose between different products. Competition in the market place is a dynamic, evolving process. Accordingly, the wording of the term “directly competitive or substitutable” implies that the competitive relationship between products is not to be analysed exclusively by reference to current consumer preferences. In our view, the word “substitutable” indicates that the requisite relationship may exist between products that are not, at a given moment, considered by consumers to be substitutes but which are, nonetheless, capable of being substituted for one another.”

Further on in the same case, the Appellate Body examined the Panel’s finding that Korean tax laws concerning liquor products were inconsistent with Article III:2. In rejecting Korea’s appeal that “potential competition” was not enough to find that subject products were “directly competitive or substitutable products”, the Appellate Body stated as follows: “The first sentence of Article III:2 also forms part of the context of the term. ‘Like’ products are a subset of directly competitive or substitutable products: all like products are, by definition, directly competitive or substitutable products, whereas not all ‘directly competitive or substitutable’ products are ‘like’.[25] The notion of like products must be construed narrowly[26]  but the category of directly competitive or substitutable products is broader.[27] While perfectly substitutable products fall within Article III:2, first sentence, imperfectly substitutable products can be assessed under Article III:2, second sentence.”[28]

Therefore, the former term presents a narrow view whereas the latter presents an even broader picture.

Tariff Classification

Tariff classification has somewhat regained importance after the introduction of the Harmonized System (‘HS’) of tariff classification.[29] The spread of this system system on a worldwide basis has, to a certain extent, harmonised national classifications. However, two major drawbacks for the use of tariff classifications in the ‘likeness’ analysis under WTO law remain. First, not all products are covered by the schedules of Article II GATT, for which tariff classification is necessary. Second, many WTO members, especially lesser-developed countries, have not yet established detailed classifications systems – whether or not based on the HS. In WTO law, to the extent that the focus has shifted to the substitutability of demand, tariff classification has lost most of its importance as a distinguishing criterion for the ‘likeness’ analysis.[30]

In Japan – Alcoholic Beverages II, the Appellate Body addressed the relevance of tariff classification for establishing the “likeness” of products: “A uniform tariff classification of products can be relevant in determining what are ‘like products’. If sufficiently detailed, tariff classification can be a helpful sign of product similarity. Tariff classification has been used as a criterion for determining ‘like products’ in several previous adopted panel reports.[31] For example, in the 1987 Japan – Alcohol Panel Report, the panel examined certain wines and alcoholic beverages on a ‘product-by- product basis’ by applying the criteria listed in the Working Party Report on Border Tax Adjustments, as well as others recognized in previous GATT practice, such as the Customs Cooperation Council Nomenclature (CCCN) for the classification of goods in customs tariffs which has been accepted by Japan.[32]

Besides, in Japan – Alcoholic Beverages II itself, in addition to tariff classification, the Appellate Body also examined the relevance of tariff bindings for the determination of “like products”. In contrast to tariff classification, the Appellate Body expressed reservations about the reliability of tariff bindings as a criterion in establishing “likeness”: “Uniform classification in tariff nomenclatures based on the Harmonized System (the ‘HS’) was recognized in GATT 1947 practice as providing a useful basis for confirming ‘likeness’ in products. However, there is a major difference between tariff classification nomenclature and tariff bindings or concessions made by Members of the WTO under Article II of the GATT 1994. There are risks in using tariff bindings that are too broad as a measure of product ‘likeness’.[33]

Other Miscellaneous Criteria

Economic Factors

In WTO law, such a focus on the market has been recognised in the Japan – Alcoholic Beverages case. The panel in that case stated that “the appropriate test to define whether two products are “like” or “directly competitive or substitutable” is the market place.”[34]  The Appellate Body endorsed this view in Japan with regard to Article III:2[35] and in EC – Asbestos with regard to Article III:4.[36] A ‘concurring opinion’ by a member of the Appellate Body in Asbestos confirmed that the Appellate Body relies heavily on economic factors in the ‘likeness’ determination. The opinion reveals certain Appellate Body members’ conception of the “fundamental”, perhaps decisive, role of economic competitive relationships in the determination of the “likeness” of products under Article III:4.[37]

The Appellate Body observed in the Korea-Alcoholic Beverage Case that :

“The context of the competitive relationship is necessarily the market place since it is the forum where consumers choose between different products. Competition in the market place is a dynamic, evolving pro-cess. Accordingly, the wording of the term “directly competitive or substitutable” implies that the competitive relationship between products is not to be analyzed exclusively by reference to current consumer preferences. In our view, the word “substitutable” indicates that the requisite relationship may exist between products that are not, at a given moment, considered by consumers to be substitutes but which are, nonetheless capable of being substituted for one another.’[38]

Further, Emch argues that the only reliable method to ascertain ‘consumers’ tastes and habits’ is to measure their purchases. As a result, the criterion of ‘consumers’ tastes and habits’ responds directly to the two aforementioned requirements – that the relationship between products be economic and that it be determined by demand.[39]

GATT and WTO tribunals have recognised the usefulness of considering the ‘product’s end-uses in a given market’ and ‘consumers’ tastes and habits’ in the ‘likeness’ determination.[40] These two concepts clearly focus on the behaviour on the demand side and must be seen as closely interrelated with the question of demand-side substitutability.

Production Methods

Previously, it did not seem that production methods could be taken into account when determining ‘likeness’ – to the extent that the differences in production were not reflected in varying physical characteristics of the products. Today, the Appellate Body seems more inclined to recognise the importance of production methods for determining ‘likeness’ of products. In the Korea – Alcoholic Beverages case, the panel seemed to examine the effects that differences in production methods had on the degree of similarity of products – as judged from the consumers’ perspective. It found that ‘the differences due to the filtration or aging processes of the beverages described are not so important as to render the products non-substitutable.[41] Similarly, the Chile panel found post-distillation differences in production methods not to be so important as to render the products non-substitutable.[42]

Moreover, the Appellate Body’s’ finding in EC-Asbestos may, quite easily, be interpreted as opening the door to taking non-product related processes and production methods (‘PPMs’) into account – with a limit, however: PPMs matter, but only insofar as they influence consumer behaviour. In Asbestos, the Appellate Body found that the toxicity of input material appearing in the end product led to a finding of ‘unlikeness’ of products, in particular because the health risks associated with the input material would ‘influence consumers’ behaviour’.[43] This finding could, by analogy, be applied to PPMs.[44]

Channels of Distribution and Points of Sale

An analysis of products’ channels of distribution and points of sale has been undertaken only in WTO law. This is not a traditional criterion contained in the Border Tax Adjustments report, but it was first used by the panel in Korea – Alcoholic Beverages.[45] The criterion examines to what degree products’ distribution systems display similarities. Examination has been quite detailed. In Chile, distribution and display of products within a same outlet has been analysed. The panel examined whether the products in question were put on adjoining shelves.[46]

Again, this criterion should not be emphasised on its own, but, rather, it may help to illustrate the degree of substitution between products as viewed from consumers’ perspective. The Korea panel recognised the lack of persuasion of the criterion per se by stating that “there is a considerable degree of overlap between the questions of common end-uses and common channels of distribution.”[47]

The Aim and Effect Approach

From time to time, mostly in the context of GATT Article III, factors other than those mentioned in the Border Tax Adjustments Report have been suggested as elements to be taken into account in order for products to be “like.”[48]

In furtherance of the above, in the Panels of United States Malt Beverages and United States Automobiles, account was taken of both the “purpose or aim” and “effect” of the measures in question.[49]

The initiator of the aim and effect type approach seems to be the Panel of EEC Animal Feed Proteins (1978). Examining whether vegetable proteins and skimmed milk powder are “directly competitive or substitutable” products within the meaning of Article III:2, the Panel clearly focused on the purpose and effect of the measure as the following statement demonstrates: “The Panel noted that the General Agreement made a distinction between ‘like products’ and ‘directly competitive and substitutable’ products. The Panel therefore also examined whether these products should be considered as directly competitive and substitutable within the meaning of Article III. In this regard the Panel noted that both the United States and the EEC considered most of these products to be substitutable under certain conditions. The Panel also noted that the objective of the EEC Regulation during the period of its application, in its own terms, was to allow for increased utilization of denatured skimmed milk powder as a protein source for use in feeding stuffs for animals other than calves. Furthermore, the Panel noted that the security deposit had been fixed at such a level as to make it economically advantageous to buy denatured skimmed milk powder rather than to provide the security, thus making denatured skimmed milk powder competitive with these products. The Panel concluded that vegetable proteins and skimmed milk powder were technically substitutable in terms of their final use and that the effects of the EEC measures were to make skimmed milk powder competitive with these vegetable proteins.”[50].

Despite this attractive aspect, the aim-and-effect theory was not able to overcome its critical weaknesses – namely, the lack of textual basis and the ample risk of circumvention. First, when the phrase of “…so as to afford protection…” in Article III:1 plays a critical role in the textual basis of the aim-and-effect approach, Article III:2 first sentence and Article III:4 do not make reference to the phrase. There is no other specific language in the GATT itself that supports an aim-and-effect-based interpretation. [51]

Moreover, if a determination of likeness depends upon the aim of the measure in question, several practical problems arise:

  • Very often, there is a multiplicity of aims that are sought through the enactment of legislation, and it would be difficult to determine which aims should be determinative for applying the aim-and-effect test;
  • Access to the complete legislative history, which according to the arguments of the proponents of the aim-and-effect test, is relevant to detect protective aims, could be difficult or even impossible; moreover, that history could be manipulated by both proponents and opponents of the legislation; and,
  • It can be argued that the “supplementary means” such as preparatory work and the circumstances of its conclusion do not have the same authentic character as an element of interpretation. Although differences exist between interpreting international treaties and domestic legislation, the Vienna Convention on the Law of Treaties can be elucidating. The Convention limits the role of supplementary means to confirm or determine the meaning of the text when the interpretation leaves the meaning ambiguous or obscure, or manifestly absurd or unreasonable.[52]

Consequently, such subsequent WTO tribunals as United States Gasoline,[53] EC Banana,[54] Korea Alcoholic[55] and Chile Alcoholic Beverages[56] fell back to the Border Tax Adjustments rule, stressing that “aim and effect” is not the proper test.

Burden Of Proof

The burden falls on the complainant to establish that imported and domestic products are ‘like’ under GATT arts I and III,[57] However, this burden is rather ‘light’[58] – a complainant may easily raise a prima facie case, which may be particularly difficult to rebut by a respondent: ‘where the complainant provides some credible evidence of likeness, it establishes a prima facie case, such that one would normally expect that the defending party would now have to muster equal or greater credible evidence of unlikeness.’[59]

In EC- Asbestos a particular emphasis was placed on physical characteristics: “[I]n cases where the evidence … establishes that the products at issue are physically quite different … in order to overcome this … a higher burden is placed on complaining Members to establish that, despite the pronounced physical differences, there is a competitive relationship between the products such that all of the evidence, taken together, demonstrates that the products are ‘like.’[60]

Besides, the primacy of ‘consumer tastes and preferences’ and ‘ end-uses’ increases where the evidence relating to physical properties establishes that the products at issue are physically quite different.  In such cases, in order to overcome this indication that products are not  “like”, a higher burden is placed on complaining Members to establish that, despite the pronounced physical differences, there is a competitive relationship between the products such that  all  of the evidence, taken together, demonstrates that the products are “like” under Article III:4 of the GATT 1994.[61]

Conclusion

Form the extensive jurisprudence developed by the WTO Dispute Settlement Bodies, the following interpretations are possible:

  • Under the objective standard the tertium comparationis may consist of factors such as physical characteristics, tariff classification, end-uses, environmental impact or even the act of exportation;
  • Under the economic standard, the tertium comparationis is defined by economic parameters indicating the extent to which the market actors are in a competitive relationship;
  • Under the subjective standard the tertium comparationis is defined by the regulatory purpose of the measure under scrutiny;
  • The objective, economic and subjective standards of ‘likeness’ may be applied individually or in combination.[62]

Besides, as the Working Party Report observed, the concept of ‘like products’ ought to be applied on a case-by-case basis. Therefore, no strict formulation regarding its scope and definition can be laid out. Depending on the products-at-issue, the measure at challenge, the provision under consideration and the circumstances of the case, the criteria utilized for examination of ‘like product’ will differ. The position is therefore expressed in a ‘colourful metaphor.’

However, irrespective of the above observation, the four criteria laid down by the Working Party in the Border Tax Adjustment Case are used as valuable indicators in determining like products, i.e. physical characteristics, end-uses, consumer tastes and preferences and tariff classification.

[1]     Kinrad von Moltke, Reassessing “Like Product” (1998).

[2]     Ibid.

[3]     Panel Report, Spain — Tariff Treatment of Unroasted Coffee, BISD, 28th Supp. 102 (1982).

[4]     Lesley Brown, 1 The New Shorter Oxford English Dictionary 1588 (1993).

[5]     Vienna Convention on the Law of Treaties art 33, May 23, 1969, 1155 U.N.T.S. 331.

[6]     Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R (20 August 1999), ¶ 153.

[7]     Appellate Body Report , EC – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (12 March 2001), ¶ 92.

[8]     Appellate Body Report, Japan- Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (4 Oct 1996), at 21.

[9]     Ibid, ¶ 6.20.

[10]    Border Tax Adjustments, Report of the Working Party, BISD 18S-97 (1970).

[11]   Appellate Body Report, United States-Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (29 April 1996), ¶ 6.8.

[12]    Report of the Panel, EEC – Measures on Animal Feed Proteins, GATT BISD 25S/49 (1977), para. 4.2, Appellate Body Report, Japan — Customs Duties, Taxes And Labelling Practices On Imported Wines And Alcoholic Beverages, BISD 34S/83 (10 November 1987), para. 5.6.

[13]    EC-Asbestos, supra note 8.

[14]    Ibid.

[15]    Ibid, ¶ 111.

[16]    EC-Asbestos, supra note 8, ¶ 122.

[17]    Ibid, ¶ 119.

[18]    Ibid

[19] Appellate Body Report, Korea – Measures Affecting Imports Of Fresh, Chilled And Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R (11 December 2000) at 10.91.

[20]    Appellate Body Reports, Philippines – Taxes on Distilled Spirits, WT/DS396/AB/R / WT/DS403/AB/R (20 January 2012), para. 220.

[21]    Appellate Body Reports, Chile Taxes on Alcoholic Beverages, WTIDS87/AB/R, WT/DSI1 0/AB/R (2000), ¶. 7.43.

[22]    Appellate Body Report, United States – Measures Affecting The Production And Sale Of Clove Cigarettes, WT/DS406/AB/R (4 April 2012).

[23]    Appellate Body Report, US- Cotton Yarn, WT/DS192/AB/R, ¶ 96-98.

[24]    Appellate Body Report, Korea –Taxes On Alcoholic Beverages, WT/DS75/AB/R, WT/DS84/AB/R (18 January 1999), ¶ 114.

[25]    Panel Report, Japan — Measures Affecting Agricultural Products, WT/DS76/R (1998), ¶ 6.22.

[26]    Japan-Alcoholic Beverages II, supra note 9, at 20.

[27]    Ibid, at 25.

[28]    Appellate Body Report, Canada — Certain Measures Concerning Periodicals, WT/DS31/R (30 June 1997), at 28.

[29]    Won-Mog Choi, “Like Products” in InternationalTrade Law – Towards a Consistent GATTI WTO Jurisprudence 52 (2003).

[30]    EC-Asbestos, supra note 8, at 146.

[31]    Appellate Body Report, United States-Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (29 April 1996); Report of the Panel, EEC – Measures on Animal Feed Proteins, GATT BISD 25S/49 (1977).

[32]    Report of the Panel, Japan-Custom Duties, Taxes and Labeling practices on Importing Wines and Alcoholic Beverages, GATT BISD 34S/83 (1987), ¶ 5.6.

[33]    Ibid, ¶ 5.9

[34]    Japan-Alcoholic Beverages II, supra note 9, ¶ 6.22.

[35]    Ibid, at 16.

[36]    Robert Hudec, “Like Products”: The Differences in Meaning in GATT Articles I and II, in Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law , 104 (Cottier et Al. ed., 2000).

[37]    EC-Asbestos, supra note 8, at 153.

[38]    Panel Report, Korea- Taxes on Alcoholic Beverages, WT/DS75/R; W’T/DS84/R (17 September 1998), at 10.47-10.49.

[39]    Adrian Emch, Same Same But Different? Fiscal Discrimination in WTO Law and EU Law: What Are “Like” Products?, 32 Legal Issues of Econ. Integration 369 (2005).

[40]    Border Tax Adjustment, supra note 11; Appellate Body Report, Canada — Certain Measures Concerning Periodicals, WT/DS31/R (30 June 1997), at 101-102.

[41]    Panel Report, Korea- Taxes on Alcoholic Beverages, WT/DS75/R; W’T/DS84/R (17 September 1998), at 10.67.

[42]    Appellate Body Report, Chile Taxes on Alcoholic Beverages, WTIDS87/AB/R, WT/DSI1 0/AB/R (2000), ¶ 7.54.

[43]    EC-Asbestos, supra note 8, at 122.

[44]    Henry L. Thaggert, A Closer Look at the Tuna/Dolphin Case: “Like Products” and “Extra Jurisdicitonality in the Trade and Environment Context, in Trade & The Environment: The Search For Balance, 69, 73 (James Cameron, Paul Demaret, & Damien Geradin eds., 1994).

[45]    Panel Report, Korea- Taxes on Alcoholic Beverages, WT/DS75/R; W’T/DS84/R (17 September 1998), at 10.83 et seq.

[46]    Appellate Body Reports, Chile Taxes on Alcoholic Beverages, WTIDS87/AB/R, WT/DSI1 0/AB/R (2000), ¶. 7.57.

[47]    Panel Report, Korea- Taxes on Alcoholic Beverages, WT/DS75/R; W’T/DS84/R (17 September 1998), at 10.83.

[48]    Edmond McGovern, International Trade Regulation 8.12–8.14 (1995).

[49]    Panel Report, United States – Measures affecting Alcoholic and Malt Beverages, BISD 39 Supp. 206, 270-71 (1992), ¶ 5.25, 5.71; Panel Report, United States – Taxes on Automobiles, DS31/R (1994) (unadopted), ¶ 5.8 et seq.

[50]    Report of the Panel, EEC – Measures on Animal Feed Proteins, GATT BISD 25S/49 (1977), ¶ 4.3 (1978)

[51]    Won Mog Choi, Overcoming The “Aim And Effect” Theory: Interpretation Of The “Like Product” In GATT Article III, 8 U.C. Davis Journal of International Law and Policy 107 (2002).

[52]    Vienna Convention on the Law of Treaties art 32, May 23, 1969, 1155 U.N.T.S. 331.

[53]    Appellate Body Report, United States-Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (29 April 1996).

[54]    Decision by the Arbitrators, EC—Regime for the Importation, Sale and Distribution of Bananas—Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU, WT/DS27/AB/R (March 24, 2000).

[55]    Appellate Body Report, Korea –Taxes On Alcoholic Beverages, WT/DS75/AB/R, WT/DS84/AB/R (18 January 1999).

[56]    Appellate Body Reports, Chile Taxes on Alcoholic Beverages, WTIDS87/AB/R, WT/DSI1 0/AB/R (2000).

[57]    Japan-Alcoholic Beverages II, supra note 9.

[58]    Henrik Hom & Petros C Mavroidis, Burden of Proof in Environmental Disputes in the WTO: Legal Aspects, 3 European Energy and Environmental Law Review, 112, 116 (2009).

[59]    Robert Howse & Elisabeth Tuerk, The WTO Impact on Internal Regulations – A Case Study of the Canada-EC Asbestos Dispute, in The EU andthe WTO: Legal and Constitutional Issues , 283, 303 (Grainne de Burca ed., 2001).

[60]    EC-Asbestos, supra note 8, ¶118.

[61]    Ibid.

[62]    The question of like product is surprisingly controversial, http://www.lawteacher.net/commercial-law/essays/the-question-of-like-product-is-surprisingly-controversial-commercial-law-essay.php#ixzz338hjKm2e (last visited May 18, 2014).

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s