"to examine, in the light of the relevant provisions of the covered agreements cited by the United States in document WT/DS56/5, the matter referred to the DSB by the United States in that document and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements".
(a) Decree No. 998/95, Resolution No. 299/96, and Resolution No. 22/97, which imposed specific duties on textiles and apparel violated Articles II:1(a) and II:1(b) GATT 1994 and Article 7 ATC;
(b) Decree No. 389/95, which applied a tax on imports, violated Article VIII GATT 1994 and Article 7 ATC; and
(c) Decree No. 2275/94, Resolution No. 305/95, Decree No. 998/95, Resolution No. 103/96, and Resolution No. 23/97, which applied specific duties on footwear until February 1997, violated Articles II:1(a) and II:1(b) GATT 1994.
The United States also requested that the Panel include within its review "other measures which impose specific duties on various textile, apparel and footwear items in excess of the bound rate of 35 per cent ad valorem provided in Argentina's Schedule LXIV".25
(a) As a special preliminary ruling, there were no grounds for it to consider the question raised by the United States in connection with the application of minimum specific import duties to imports of footwear as the duties in question had been eliminated before the Panel was established;
(b) The application of the specific duties in force, to the extent that they did not exceed the "ad valorem equivalent" of Argentina's bound rate of 35 per cent under the WTO Agreement, was not inconsistent with Argentina's obligations under Articles II:l(a) and II:1(b) GATT 1994 and Article 7 ATC;
(c) The statistical tax applied by Argentina was consistent with Article VIII GATT 1994.
"Previous GATT 1947 and WTO panels have frequently addressed only those issues that such panels considered necessary for the resolution of the matter between the parties, and have declined to decide other issues".
Further on, the report stated that:
"Given the explicit aim of dispute settlement that permeates the DSU, we do not consider that Article 3.2 of the DSU is meant to encourage either panels or the Appellate Body to "make law" by clarifying existing provisions of the WTO Agreement outside the context of resolving a particular dispute. A panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute".39
"The Panel observed that it has not been usual practice of a panel established under the General Agreement to rule on measures that, at the time the Panel's terms of reference were fixed, were not and would not become effective. In the 1978 Animal Feed Protein case, the Panel ruled on a discontinued measure, but one that had terminated after agreement on the Panel's terms of reference. In the 1980 Chile Apples case, the Panel ruled on a measure terminated before agreement on the Panel's terms of reference, however, the terms of reference in that case specifically included the terminated measure and, it being a seasonal measure, there remained the prospect of its reintroduction. In the present case the Panel's terms of reference were established after the 75 per cent rule had ceased to have any effect, and the rule had not been specifically mentioned in the terms of reference. The Panel further noted that there was no indication by the parties that the 75 per cent rule was a measure that, although currently not in force, was likely to be renewed [...]. The Panel did not therefore proceed to examine this aspect of the Gasoline Rule under Article I:1 of the General Agreement".43
"We note that the United States [withdrew the measure] in a Federal Register Notice dated 4 December 1996. In the absence of an agreement between the parties to terminate the proceedings, we think that it is appropriate to issue our final report regarding the matter set out in the terms of reference of this Panel in order to comply with our mandate, as referred to in paragraph 1.3 of this report, notwithstanding the withdrawal of the U.S. restraint".46
"in determining whether treatment accorded by a tariff measure was no less favourable than that provided for in the Schedule, it had to take into account not only the actual consequences of that measure for present imports but also its effects on possible future imports. This followed from the principle recognized by many previous panels that the provisions of the General Agreement serve not only to protect actual trade flows but also to create predictability for future trade".52
"[it] shared the view expressed before it relating to the fundamental importance to the security and predictability of GATT tariff bindings, a principle which constitutes a central obligation in the system of the General Agreement".53
"The Panel considered that the actual levying of a duty in excess of the bound rate clearly constituted a treatment of bananas less favourable than that provided for in the EEC’s Schedule of Concessions. The Panel then proceeded to examine whether also the mere possibility that the specific tariff rate applied by the EEC might be higher then the corresponding bound ad valorem rate, rendered it inconsistent with Article II. The Panel recalled the importance of security and predictability in the application of tariffs bindings. It noted that previous panels and working parties had emphasized that tariff bindings justify reasonable expectations about market access and conditions of competition. The CONTRACTING PARTIES had consistently found that a change from a bound specific to an ad valorem rate was a modification of the concession [...] The Panel [...] concluded that, in determining whether treatment accorded by a tariff measure was no less favourable than that provided for in the Schedule, it had to take into account not only the actual consequences of that measure for present imports but also its effects on possible future imports. This followed from the principle recognized by many previous panels that the provisions of the General Agreement serve not only to protect actual trade flows but also to create predictability for future trade".54
"The Panel noted that Article II required that each contracting party 'accord to the commerce of the other contracting parties treatment no less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this Agreement'. The Panel then considered whether the introduction of a specific tariff for bananas in place of the ad valorem tariff provided for in its Schedule constituted 'treatment no less favourable' in terms of Article II. The Panel observed that while the bound ad valorem tariff was related to the value of bananas, the new specific tariff was based on the weight of bananas. Any change in the value of bananas per ton therefore led to a change in the ad valorem equivalent of the specific tariff [...] [T]he Panel also noted that the EEC had neither argued nor submitted any evidence that this tariff could never exceed 20 percent ad valorem; according to the complainants, the [...] specific tariff had already exceeded the equivalent of the bound 20 per cent ad valorem tariff [...] The Panel consequently found that the new specific tariffs led to the levying of a duty on imports of bananas whose ad valorem equivalent was, either actually or potentially, higher than 20 percent ad valorem".76
"The Panel considered that the actual levying of a duty in excess of the bound rate clearly constituted a treatment of bananas less favourable than that provided for in the EEC’s Schedule of Concessions. The Panel then proceeded to examine whether also the mere possibility that the specific tariff rate applied by the EEC might be higher than the corresponding bound ad valorem rate, rendered it inconsistent with Article II. The Panel recalled the importance of security and predictability in the application of tariffs bindings. It noted that previous panels and working parties had emphasized that tariff bindings justify reasonable expectations about market access and conditions of competition. The CONTRACTING PARTIES had consistently found that a change from a bound specific to an ad valorem rate was a modification of a concession [...]. The Panel [...] concluded that, in determining whether treatment accorded by a tariff measure was no less favourable than that provided for in the Schedule, it had to take into account not only the actual consequences of that measure for present imports but also its effects on possible future imports. This followed from the principle recognized by many previous panels that the provisions of the General Agreement serve not only to protect actual trade flows but also to create predictability for future trade".77
The panel on EEC - Import Regime for Bananas thus had found that the mere possibility of exceeding a bound rate inherent in converting from ad valorem to specific duties was inconsistent with Article II. In reaching this conclusion, the panel followed prior GATT practice regarding conversions between ad valorem and specific duties. As that panel explained, such a change undermined the stability and predictability of Schedules, one of the cornerstones of the GATT. Based on these considerations, the Bananas panel concluded that the mere possibility of a breach sufficed to demonstrate less favourable treatment for purposes of Article II:1(a). The same reasoning was applicable in this dispute.
(a) "the ad valorem equivalent of the 850 ECUs per ton specific tariff on bananas exceeded by far 20 per cent ad valorem" (para. 134) ;
(b) "as to the 100 ECUs per ton specific tariff, the EEC had neither argued nor submitted any evidence that this tariff could never exceed 20 per cent ad valorem" (same paragraph).
"not only to protect current trade but also to create the predictability needed to plan future trade. That objective could not be attained if contracting parties could not challenge existing legislation mandating actions at variance with the General Agreement until the administrative acts implementing it had actually been applied to their trade".84
(a) A representative international price was calculated for each category of products and tariff heading. Since there were no standard international prices for textile and clothing products, the prices prevailing in the major markets were used, mainly the United States market. The use of data concerning these markets was determined in general terms by volume and the representative nature of the markets, and also by the degree of reliability of the statistics;
(b) a specific duty equivalent to a maximum ad valorem tariff of 35 per cent was applied to the international prices thus determined, adjusted to put them on a c.i.f. - Buenos Aires port basis.92
Transaction value | Import duty |
Over US$17.50 | 20 per cent ad valorem |
Between US$17.50 and US$10 | US$3.50 |
Less than US$10 | 35 per cent ad valorem |
- Example 1 consisted of an Argentine customs form indicating a total c.i.f. value of US$15,722.53 and a total specific duty of US$10,560.00. This demonstrated that the specific duties constituted an ad valorem equivalent of 67 per cent.
- Example 2 consisted of an Argentine customs form indicating a total c.i.f. value of US$23,046.20 and a total specific duty of US$14,476.00. This demonstrated that the specific duties constituted an ad valorem equivalent of 63 per cent.
- Example 3 consisted of an Argentine customs form indicating a total c.i.f. value of US$7,444.33 and a total specific duty of US$4,809.60. This demonstrated that the specific duties constituted an ad valorem equivalent of 65 per cent.
- Example 4 consisted of an Argentine customs form indicating a total c.i.f. value of US$94,846.13 and a total specific duty of US$56,909.70. This demonstrated that the specific duties constituted an ad valorem equivalent of 60 per cent.
- Example 5 consisted of an Argentine customs form indicating a total c.i.f. value of US$30,690.17 and a total specific duty of US$19,576.20. This demonstrated that the specific duties constituted an ad valorem equivalent of 64 per cent.
- Example 6 consisted of an Argentine customs form indicating a total c.i.f. value of US$19,384.01 and a total specific duty of US$7,087.61. This demonstrated that the specific duties constituted an ad valorem equivalent of 37 per cent.
- payment of import duties, Form OM 2132 (electronic registration) ;
- form OM 686 B (manual registration) (Banco de la Nación) ;
- full set with a sample of an import transaction processed through the so-called "manual system" (as opposed to the MARIA computer system).
"having heard no evidence that either the purchasing obligation, the security deposit [...] discriminated against imports of 'like products' [...] the Panel concluded that the EEC measures were not inconsistent".102
"In addressing this issue, we find it difficult, indeed, to see how any system of judicial settlement could work if it incorporated the proposition that the mere assertion of a claim might amount to proof. It is, thus, hardly surprising that various international tribunals, including the International Court of Justice, have generally and consistently accepted and applied the rule that the party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof. Also, it is a generally accepted canon of evidence in civil law, common law and, in fact, most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence".103
"The Appellate Body reaffirmed a general principle of GATT and WTO jurisprudence that ‛a party claiming a violation of a provision of the WTO Agreement must assert and prove its claim'. Once the claiming party has satisfied this obligation, the burden then shifts to the responding party to bring forward evidence and argument to disprove the claim".104
Members of the Working Party pointed out that the statistical tax of 3 per cent ad valorem applied by the Congolese authorities on imports was not commensurate with the service rendered and was contrary to the provisions of Article VIII:1(a). The representative of the Congo recognized that this tax exceeded the cost of the service, and explained that the surplus revenue from the tax would be employed toward improving the service. His authorities were prepared to consider the adjustment of the statistical tax, in the light of the provisions of Article VIII as soon as they were in a position to afford it. The Working Party took note of this statement and invited the Government of the Democratic Republic of the Congo to re-examine its present method of application of the statistical tax and to report to the CONTRACTING PARTIES on the possibilities of bringing the tax into line with the provisions of Article VIII:1(a).122
"recent experience had shown that the application of any system other than an ad valorem fee would be extremely complex and bring in an element of administrative discretion which might lead to undesirable delays or obstacles to imports. Moreover, the administrative cost of operating a transaction-based fee would be very high".124
It was noteworthy that the Working Party had reached the conclusion that "subject to the satisfactory conclusion of the relevant tariff negotiations, Venezuela be invited to accede".125
"difficulties the origins of which lie outside the trade field cannot be redressed through measures taken in the trade field alone. This underscore the importance of efforts to improve other elements of global economic policymaking to complement the effective implementation of the results achieved in the Uruguay Round. [...] The interlinkages between the different aspects of economic policy require that the international institutions with responsibilities in each of these areas follow consistent and mutually supportive policies".136
"the policy of liberalizing world trade cannot be carried out successfully in the absence of parallel efforts to set up a monetary system which shields the world economy from the shocks and imbalances which have previously occurred. The Ministers will not lose sight of the fact that the efforts which are to be made in the trade field imply continuing efforts to maintain orderly conditions and to establish a durable and equitable monetary system".
The Ministers recognize equally that the new phase in the liberalization of trade which it is their intention to undertake should facilitate the orderly functioning of the monetary system".144