tutorial video tutorial video Discover the CiteMap in 3 minutes
Source(s) of the information:
Source(s) of the information:

Lawyers, other representatives, expert(s), tribunal’s secretary

Reports of the Panel

WTO CASES CITED IN THESE REPORTS

Short titleFull case title and citation
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, p. 515
Argentina – Hides and Leather Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and Import of Finished Leather, WT/DS155/R and Corr.1, adopted 16 February 2001, DSR 2001:V, p. 1779
Argentina – Textiles and Apparel Appellate Body Report, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/AB/R and Corr.1, adopted 22 April 1998, DSR 1998:III, p. 1003
Argentina – Textiles and Apparel Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/R, adopted 22 April 1998, as modified by Appellate Body Report WT/DS56/AB/R, DSR 1998:III, p. 1033
Australia – Apples Panel Report, Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/R, adopted 17 December 2010, as modified by Appellate Body Report WT/DS367/AB/R, DSR 2010:VI, p. 2371
Australia – Automotive Leather II Panel Report, Australia – Subsidies Provided to Producers and Exporters of Automotive Leather, WT/DS126/R, adopted 16 June 1999, DSR 1999:III, p. 951
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327
Brazil – Aircraft Panel Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report WT/DS46/AB/R, DSR 1999:III, p. 1221
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body Report WT/DS332/AB/R, DSR 2007:V, p. 1649
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1377
Canada – Autos Panel Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, p. 3043
Canada – Wheat Exports and Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September 2004, DSR 2004:VI, p. 2739
Canada – Wheat Exports and Grain Imports Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/R, adopted 27 September 2004, upheld by Appellate Body Report WT/DS276/AB/R, DSR 2004:VI, p. 2817
Chile – Alcoholic Beverages Appellate Body Report, Chile – Taxes on Alcoholic Beverages, WT/DS87/AB/R, WT/DS110/AB/R, adopted 12 January 2000, DSR 2000:I, p. 281
Chile – Price Band System (Article 21.5 – Argentina) Appellate Body Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU by Argentina, WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, p. 513
China – Auto Parts Appellate Body Reports, China – Measures Affecting Imports of Automobile Parts, WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, adopted 12 January 2009, DSR 2009:I, p. 3
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile Parts, WT/DS339/R / WT/DS340/R / WT/DS342/R / Add.1 and Add.2, adopted 12 January 2009, upheld (WT/DS339/R) and as modified (WT/DS340/R / WT/DS342/R) by Appellate Body Reports WT/DS339/AB/R / WT/DS340/AB/R / WT/DS342/AB/R, DSR 2009:I, p. 119
China – Intellectual Property Rights Panel Report, China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R, adopted 20 March 2009, DSR 2009:V, p. 2097
China – Publications and Audiovisual Products Appellate Body Report, China –Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/AB/R, adopted 19 January 2010, DSR 2010:I, p. 3
China – Publications and Audiovisual Products Panel Report, China –Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, adopted 22 February 2012, DSR 2012:VII, p. 3295
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw Materials, WT/DS394/R / WT/DS395/R / WT/DS398/R / Add.1 and Corr.1, adopted 22 February 2012, as modified by Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, DSR 2012:VII, p. 3501
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry, WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535
Dominican Republic – Import and Sale of Cigarettes Appellate Body Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted 19 May 2005, DSR 2005:XV, p. 7367
Dominican Republic – Import and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, as modified by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425
EC – Approval and Marketing of Biotech Products Panel Reports, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R / WT/DS292/R / WT/DS293/R / Add.1 to Add.9 and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos‑Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 3243
EC – Asbestos Panel Report, European Communities – Measures Affecting Asbestos and Asbestos‑Containing Products, WT/DS135/R and Add.1, adopted 5 April 2001, as modified by Appellate Body Report WT/DS135/AB/R, DSR 2001:VIII, p. 3305
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, p. 591
EC – Bananas III (Ecuador) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by Ecuador, WT/DS27/R/ECU, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:III, p. 1085
EC – Bananas III (US) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, Complaint by the United States, WT/DS27/R/USA, adopted 25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 943
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, p. 135
EC – IT Products Panel Reports, European Communities and its member States – Tariff Treatment of Certain Information Technology Products, WT/DS375/R / WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III, p. 933
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998, DSR 1998:V, p. 2031
EC – Poultry Panel Report, European Communities – Measures Affecting the Importation of Certain Poultry Products, WT/DS69/R, adopted 23 July 1998, as modified by Appellate Body Report WT/DS69/AB/R, DSR 1998:V, p. 2089
EC – Sardines Appellate Body Report, European Communities – Trade Description of Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, p. 3359
EC – Selected Customs Matters Panel Report, European Communities – Selected Customs Matters, WT/DS315/R, adopted 11 December 2006, as modified by Appellate Body Report WT/DS315/AB/R, DSR 2006:IX, p. 3915
EC and certain member States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted 1 June 2011, DSR 2011:I, p. 7
EC and certain member States – Large Civil Aircraft Panel Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/R, adopted 1 June 2011, as modified by Appellate Body Report, WT/DS316/AB/R, DSR 2011:II, p. 685
India – Autos Panel Report, India – Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, p. 1827
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, p. 9
India – Quantitative Restrictions Panel Report, India – Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R, adopted 22 September 1999, upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, p. 1799
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and Corr.1 and Corr.2, adopted 23 July 1998, and Corr.3 and 4, DSR 1998:VI, p. 2201
Japan – Alcoholic Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391
Japan – Apples Panel Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/R, adopted 10 December 2003, upheld by Appellate Body Report WT/DS245/AB/R, DSR 2003:IX, p. 4481
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, p. 1179
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, p. 3
Korea – Alcoholic Beverages Panel Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/R, WT/DS84/R, adopted 17 February 1999, as modified by Appellate Body Report WT/DS75/AB/R, WT/DS84/AB/R, DSR 1999:I, p. 44
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, p. 3
Korea – Various Measures on Beef Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, DSR 2001:I, p. 5
Mexico – Taxes on Soft Drinks Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages, WT/DS308/R, adopted 24 March 2006, as modified by Appellate Body Report WT/DS308/AB/R, DSR 2006:I, p. 43
Thailand – Cigarettes (Philippines) Appellate Body Report, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/AB/R, adopted 15 July 2011, DSR 2011:IV, p. 2203
Thailand – Cigarettes (Philippines) Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines, WT/DS371/R, adopted 15 July 2011, as modified by Appellate Body Report WT/DS371/AB/R, DSR 2011:IV, p. 2299
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice, WT/DS334/R, adopted 22 October 2007, DSR 2007:VI, p. 2151
US – 1916 Act Appellate Body Report, United States – Anti‑Dumping Act of 1916, WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, p. 4793
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009, DSR 2009:III, p. 1291
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 2012, DSR 2012:V:, p. 2449
US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R / WT/DS386/R, adopted 23 July 2012, as modified by Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R, DSR 2012:VI, p. 2745
US – Corrosion‑Resistant Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti‑Dumping Duties on Corrosion‑Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3
US – Countervailing and Anti‑Dumping Measures (China) Panel Report, United States – Countervailing and Anti-Dumping Measures on Certain Products from China, WT/DS449/R, adopted 22 July 2014, as modified by Appellate Body Report WT/DS449/AB/R and Corr.1
US – Countervailing Duty Investigation on DRAMS Panel Report, United States – Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea, WT/DS296/R, adopted 20 July 2005, as modified by Appellate Body Report WT/DS296/AB/R, DSR 2005:XVII, p. 8243
US – Export Restraints Panel Report, United States – Measures Treating Exports Restraints as Subsidies, WT/DS194/R and Corr.2, adopted 23 August 2001, DSR 2001:XI, p. 5767
US – FSC (Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, p. 55
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, p. 3
US – Gasoline Panel Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body Report WT/DS2/AB/R, DSR 1996:I, p. 29
US – Large Civil Aircraft (2nd complaint) Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), WT/DS353/R, adopted 23 March 2012, as modified by Appellate Body Report WT/DS353/AB/R, DSR 2012:II, p. 649
US – Lead and Bismuth II Appellate Body Report, United States – Imposition of Countervailing Duties on Certain Hot‑Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom, WT/DS138/AB/R, adopted 7 June 2000, DSR 2000:V, p. 2595
US – Oil Country Tubular Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti‑Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R, adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, p. 2755
US – Shrimp (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam, WT/DS404/R, adopted 2 September 2011, DSR 2011:X, p. 5301
US – Tuna II (Mexico) Panel Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, adopted 13 June 2012, as modified by Appellate Body Report WT/DS381/AB/R, DSR 2012:IV, p. 1837, DSR 2012:IV, p. 1837
US – Underwear Panel Report, United States – Restrictions on Imports of Cotton and Man‑made Fibre Underwear, WT/DS24/R, adopted 25 February 1997, as modified by Appellate Body Report WT/DS24/AB/R, DSR 1997:I, p. 31
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton, WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, p. 717
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr.1, DSR 1997:I, p. 323
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/AB/R, adopted 9 May 2006, and Corr.1, DSR 2006:II, p. 417
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/R, adopted 9 May 2006, as modified by Appellate Body Report WT/DS294/AB/R, DSR 2006:II, p. 521
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322/R, adopted 23 January 2007, as modified by Appellate Body Report WT/DS322/AB/R, DSR 2007:I, p. 97

T CASES CITED IN THESE REPORTS

Short titleFull case title and citation
Canada – FIRA GATT Panel Report, Canada – Administration of the Foreign Investment Review Act, L/5504, adopted 7 February 1984, BISD 30S, p. 140
Canada – Provincial Liquor Boards (EEC) GATT Panel Report, Canada – Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies, L/6304, adopted 22 March 1988, BISD 35S, p. 37
Canada – Provincial Liquor Boards (US) GATT Panel Report, Canada – Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, DS17/R, adopted 18 February 1992, BISD 39S, p. 27
EEC – Minimum Import Prices GATT Panel Report, EEC – Programme of Minimum Import Prices, Licences and Surety Deposits for Certain Processed Fruits and Vegetables, L/4687, adopted 18 October 1978, BISD 25S, p. 68
EEC – Oilseeds I GATT Panel Report, European Economic Community – Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, L/6627, adopted 25 January 1990, BISD 37S, p. 86
EEC – Parts and Components GATT Panel Report, European Economic Community – Regulation on Imports of Parts and Components, L/6657, adopted 16 May 1990, BISD 37S, p. 132
Japan – Semi-Conductors GATT Panel Report, Japan – Trade in Semi-Conductors, L/6309, adopted 4 May 1988, BISD 35S, p. 116
US – Section 337 Tariff Act GATT Panel Report, United States Section 337 of the Tariff Act of 1930, L/6439, adopted 7 November 1989, BISD 36S, p. 345
US – Superfund GATT Panel Report, United States – Taxes on Petroleum and Certain Imported Substances, L/6175, adopted 17 June 1987, BISD 34S, p. 136

ABBREVIATIONS

AbbreviationDescription
AFIP Federal Public Revenue Administration
AmCham American Chamber of Commerce in Argentina
ANMAT National Drugs, Food and Medical Technology Administration
ARS Argentine Peso
BCI Business confidential information
CADELTRIP Argentine Chamber of Producers of Natural Casing
CAFMA Argentine Chamber of Producers of Agricultural Machinery
CUIT Taxpayer identification code
DGA Directorate-General of Customs of the Federal Public Revenue Administration
DGI Directorate-General of Revenue of the Federal Public Revenue Administration
DGRSS Directorate-General for Revenues from Social Security of the Federal Public Revenue Administration
DJAI Advance Sworn Import Declaration
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
FOB Free on board
GATT 1994 General Agreement on Tariffs and Trade 1994
ICJ International Court of Justice
ILA Agreement on Import Licensing Procedures
INTI National Institute of Industrial Technology of the Ministry of Industry
INV National Grape-Growing and Wine Production Institute
PEI 2020 Industrial Strategic Plan 2020
ROI Import Operations Registry
RTRRs Restrictive Trade-Related Requirements
SAFE Framework World Customs Organization's SAFE Framework of Standards to Secure and Facilitate Global Trade
SCI Secretariat of Domestic Trade
SEDRONAR Planning Secretariat for the Prevention of Drug Addiction and the Fight Against Drug Trafficking
SENASA National Agriculture and Food Quality and Health Service
SIM MARIA informatic system
TRIMs Agreement Agreement on Trade-Related Investment Measures
TRRs Trade-Related Requirements
UCESCI Unit on Coordination and Evaluation of Subsidies on Internal Consumption
US United States of America
USD United States' Dollar
USTR Office of the United States Trade Representative
WCO World Customs Organization
WTO World Trade Organization
WTO Agreement Agreement Establishing the World Trade Organization

1 INTRODUCTION

1.1 COMPLAINTS BY THE EUROPEAN UNION, THE UNITED STATES AND JAPAN

1.1.
On 25 May 2012, the European Union requested consultations with Argentina pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994), Article 19 of the Agreement on Agriculture, Article 6 of the Agreement on Import Licensing Procedures (ILA), Article 8 of the Agreement on Trade-Related Investment Measures (TRIMs Agreement), and Article 14 of the Agreement on Safeguards, with respect to certain measures imposed by Argentina on the importation of goods.1
1.2.
The following Members asked to join the consultations requested by the European Union: Turkey (on 31 May 2012)2; the United States and Ukraine (on 7 June 2012)3; Australia, Canada, Guatemala and Japan (on 8 June 2012)4; and Mexico (on 3 July 2012).5 Argentina subsequently informed the Dispute Settlement Body (DSB) that it had accepted the requests of Australia, Canada, Guatemala, Japan, Mexico, Turkey, Ukraine and the United States to join the consultations.6
1.3.
On 21 August 2012, the United States requested consultations with Argentina pursuant to Articles 1 and 4 of the DSU, Article XXII of the GATT 1994, Article 6 of the ILA, Article 8 of the TRIMs Agreement, and Article 14 of the Agreement on Safeguards, concerning certain measures imposed by Argentina on the importation of goods.7
1.4.
The following Members asked to join the consultations requested by the United States: Mexico (on 24 August 2012)8; Turkey (on 29 August 2012)9; the European Union and Guatemala (on 30 August 2012)10; and, Australia, Canada and Japan (on 31 August 2012).11 Argentina subsequently informed the DSB that it had accepted the requests of Australia, Canada, the European Union, Guatemala, Japan, Mexico and Turkey to join the consultations.12
1.5.
On 21 August 2012, Japan requested consultations with Argentina pursuant to Articles 1 and 4 of the DSU, Article XXII of the GATT 1994, Article 6 of the ILA, Article 8 of the TRIMs Agreement, and Article 14 of the Agreement on Safeguards, with respect to certain measures imposed by Argentina on the importation of goods.13
1.6.
The following Members asked to join the consultations requested by Japan: Mexico (on 24 August 2012)14; Turkey (on 29 August 2012)15; the European Union and Guatemala (on 30 August 2012)16; and, Australia, Canada and the United States (on 31 August 2012).17 Argentina subsequently informed the DSB that it had accepted the requests of Australia, Canada, the European Union, Guatemala, Mexico, Turkey and the United States to join the consultations.18
1.7.
The European Union held consultations with Argentina on 12 and 13 July 2012.19
1.8.
The United States held consultations with Argentina on 20 and 21 September 2012.20
1.9.
Japan held consultations with Argentina on 20 and 21 September 2012.21
1.10.
None of these consultations led to a mutually satisfactory solution.22

1.2 PANEL ESTABLISHMENT AND COMPOSITION

1.11.
On 6 December 2012, the European Union, the United States and Japan separately requested the establishment of a panel with standard terms of reference pursuant to Article 6 of the DSU.23 At its meeting on 28 January 2013, the DSB established a single panel pursuant to the requests of the European Union in document WT/DS438/11, the United States in document WT/DS444/10, and Japan in document WT/DS445/10, in accordance with Article 9.1 of the DSU.24
1.12.
The Panel's terms of reference are the following:

To examine, in the light of the relevant provisions of the covered agreements cited by the parties to the dispute, the matter referred to the DSB by the European Union in document WT/DS438/11, the United States in document WT/DS444/10, and Japan in document WT/DS445/10, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.25

1.13.
On 15 May 2013, the European Union, the United States and Japan requested the Director-General to determine the composition of the panel, pursuant to Article 8.7 of the DSU.26 On 27 May 2013, the Director-General composed the Panel as follows:

Chairperson: Ms Leora Blumberg

Members: Ms Claudia Orozco

Mr Graham Sampson27

1.14.
Australia, Canada, China, Ecuador, the European Union (for WT/DS444 and WT/DS445), Guatemala, India, Israel, Japan (for WT/DS438 and WT/DS444), the Republic of Korea, Norway, the Kingdom of Saudi Arabia, Switzerland, Chinese Taipei, Thailand, Turkey, and the United States (for WT/DS438 and WT/DS445), notified their interest in participating in the Panel proceedings as third parties.28

1.3 PANEL PROCEEDINGS

1.3.1 General

1.15.
The Panel held its organizational meeting with the parties on 5 June 2013. After consultation with the parties, the Panel adopted its Working Procedures on 14 June 201329 and its timetable on 27 June 2013.30
1.16.
The complainants filed their separate first written submissions on 3 July 2013. Argentina filed its first written submission on 7 August 2013. Third-party submissions were received on 28 August 2013 from Australia, Israel, Norway, Saudi Arabia, Chinese Taipei, and Turkey.
1.17.
The Panel held a first substantive meeting with the parties from 24 to 26 September 2013. A session with the third parties took place on 25 September 2013. Upon request of the parties, on 26 September 2013, the Panel extended for one day the deadline to receive the parties' written responses to questions posed by the Panel after the first substantive meeting. Written responses to questions posed by the Panel were received on 11 October 2013.
1.18.
The parties filed their second written submissions on 14 November 2013.
1.19.
The Panel held a second substantive meeting with the parties on 10 and 11 December 2013. Written responses to questions posed by the Panel were received on 14 January 2014. Comments by the parties on responses provided by the other parties were received on 4 February 2014.
1.20.
On 5 March 2014, the Panel issued the descriptive sections of its draft reports to the parties.31 Parties provided comments to the descriptive sections of the Panel Reports on 19 March 2014.
1.21.
The Panel issued its Interim Reports to the parties on 21 May 2014. On 4 June 2014, parties separately requested the revision of specific aspects of the Interim Reports; on 11 June 2014, parties made comments on other parties' requests. The Panel issued its Final Reports to the parties on 26 June 2014.
1.22.
One third party submission was made outside of the deadlines prescribed by the Working Procedures adopted by the Panel.32 The Panel stresses the importance of all parties, including third parties, adhering to the time-limits for filing documents, in the interests of fairness and the orderly conduct of panel proceedings.

1.3.2 Request for enhanced third party rights

1.23.
On 4 June 2013, the Panel received a communication from Canada requesting enhanced third party rights to: (a) receive copies of all submissions and statements of the parties preceding the issuance of the interim report, including responses to panel questions; and, (b) be present for the entirety of all substantive meetings of the panel with the parties. During the Panel's organizational meeting on 5 June 2013, the Panel invited the parties to provide initial comments on Canada's request by 10 June 2013. In their respective responses, none of the parties fully supported Canada's request for enhanced third party rights and two of the parties (the United States and Argentina) rejected the request.
1.24.
In considering Canada's request, the Panel took into account the DSU rules, the circumstances of the present case, the relevant decisions of previous panels and the Appellate Body33, and the views expressed by the parties. On 1 July 2013, the Panel informed Canada that it had declined its request for enhanced third party rights. In reaching its decision, the Panel considered that the reasons advanced by Canada in support of its request (i.e. a considerable systemic interest in the outcome of the dispute and in how the panel may interpret certain Covered Agreements) did not constitute a specific situation that would justify the granting of enhanced third party rights additional to those accorded in the DSU and the Working Procedures. In particular, Canada had not explained why the matter at issue would have a significant economic or trade policy effect for Canada, different from that for other World Trade Organization (WTO) Members. In addition, the Panel considered that Canada did not explain why the third party rights provided for in the DSU would not be sufficient to allow Canada's interests, including its systemic concerns regarding this dispute, to be fully taken into account during the panel process. Moreover, consulted by the Panel, none of the parties in this dispute unconditionally supported Canada's request for enhanced third party rights and two of the parties explicitly rejected the request.34

1.3.3 Special Procedures for the protection of confidential information

1.25.
During the Panel's organizational meeting on 5 June 2013, the parties suggested that it would be desirable that the Panel adopt additional procedures for the protection of business confidential information (BCI) provided by the parties in the course of the proceedings. The parties asked the Panel to include language in the working procedures that would allow the adoption of such additional rules and informed the Panel that they intended to submit a joint proposal for the additional procedures. In view of the joint request of the parties, the Panel included the following language in paragraph 2 of the Working Procedures adopted on 14 June 2013:

The Panel may, after consultation with the parties, adopt additional procedures for the protection of business confidential information (BCI) provided by the parties in the course of these proceedings.

1.26.
None of the parties subsequently proposed the adoption of additional procedures for the protection of BCI.
1.27.
On 22 October 2013, the Panel sent a communication to the parties.35 In its communication, the Panel noted that the parties had failed to provide certain evidence and information requested in the Panel's written questions after the first substantive meeting. The Panel reminded the parties of the requirement for their collaboration in the presentation of the facts and evidence that are relevant for the Panel to discharge its functions. It also reminded the parties of the Panel's authority to draw appropriate inferences from a Member's refusal to provide information. The Panel noted the concerns expressed by the complainants with respect to the reluctance of companies involved to make available some of the information required, and the concerns expressed by Argentina with respect to the probative value of some evidence provided by the complainants.
1.28.
In view of arguments made by the parties, the Panel proposed the adoption of special procedures to allow them to submit evidence and information that had been requested. These procedures would have contemplated the following: (a) the Panel would appoint an independent expert to assist the Panel in establishing the content of certain documents when a party considered that aspects of the information should be confidential and not accessible to other parties; (b) the Panel would designate, as an independent expert, a notary public based in or near Geneva with working knowledge of the Spanish and English languages; (c) before appointing the independent expert, the Panel would identify suitable experts and allow parties the opportunity to indicate whether there was any conflict of interest or any other compelling reason that would preclude the appointment of any of those persons as an independent expert; (d) the independent expert would be subject to the WTO DSU rules of conduct, would confirm in writing, before being appointed by the Panel, the lack of any conflict of interest (the statement would be similar to those signed by WTO panelists pursuant to the DSU Rules of Conduct), and would maintain strict confidentiality of the information provided by any of the parties; the confidentiality obligation would continue following the end of the proceedings; (e) once informed by the Panel of the appointment of the independent expert, parties would bring to this expert, individually or jointly, the information requested by the Panel; (f) the confidential evidence provided to the independent expert would not become part of the record; (g) on the basis of the confidential evidence provided by any of the parties, the independent expert would be asked to respond to a questionnaire prepared by the Panel after having consulted the parties; (h) parties could propose questions to be incorporated into the questionnaire, but the Panel would be ultimately responsible for drafting the questionnaire; (i) the independent expert would be limited to responding in writing to the questions addressed by the Panel in the questionnaire; (j) the Panel would forward the independent expert's responses to the parties and parties would be invited to comment on the independent expert's responses; (k) the Panel would retain at all times final authority to assess the facts of the case; (l) there would be no meeting of the Panel with the independent expert and the parties; (m) during the course of the proceedings of the current dispute, the independent expert would have no contact with officials of any of the parties involved or their representatives, except for the purpose of receiving and examining the confidential evidence provided; (n) the independent expert would report to the Panel; and, (o) if the independent expert had any questions or doubts regarding the discharge of its function, he/she would request instructions from the Panel.
1.29.
The Panel invited the parties to comment on the proposed special procedures. The parties provided their comments on 30 October 2013. In their responses, none of the parties expressed support for the adoption of the proposed special procedures; moreover, the United States, Japan, and Argentina expressed concerns about the proposed special procedures, their consistency with the rules of the DSU, and their systemic implications.36
1.30.
In view of the arguments raised by the parties, on 6 November 2013 the Panel informed the parties that it had decided not to adopt the proposed special procedures.37 In its communication, the Panel reiterated its request to the parties to provide the evidence and information identified in the Panel's written questions after the first substantive meeting. The Panel noted that (other than the European Union's statement that the adoption of usual BCI procedures would not be sufficient to ensure protection for the identity of the companies concerned), the complainants failed to indicate the type of procedural rules that the Panel should adopt to protect information in a manner that would enable the submission of such information. The Panel reminded the parties of the requirement for their collaboration in the presentation of the facts and evidence that are relevant for the Panel proceedings. It also reminded the parties of the Panel's authority to draw appropriate inferences from a Member's refusal to provide information. The Panel invited parties to address these issues in their second written submissions.
1.31.
The Panel will revert to the issue of the treatment of evidence in the findings section of these reports.

1.3.4 Preliminary rulings

1.32.
In its first written submission on 7 August 2013, Argentina requested the Panel to issue a preliminary ruling that the so-called "Restrictive Trade Related Requirements" (RTRRs) identified in the panel requests submitted by the European Union, the United States and Japan fell outside the Panel's terms of reference.38 Argentina's request raised three main issues with respect to the alleged RTRRs, namely: (a) whether the RTRRs were identified by the complainants as a measure at issue in their respective requests for consultations; (b) whether the reference to the RTRRs as a broad unwritten "overarching measure" in the complainants' panel requests "expanded the scope" and "changed the essence" of the dispute; and, (c) whether the complainants identified, either in their respective requests for consultations or in their panel requests, the measures that are subject to their claims against the RTRRs "as applied".
1.33.
On 9 August 2013, the Panel invited the complainants to respond in writing to Argentina's request for a preliminary ruling by 10 September 2013. In the same letter, the Panel invited the third parties to comment on Argentina's request in their written submissions, due on 28 August 2013. Australia and Chinese Taipei provided comments in their third-party written submissions. The complainants submitted their respective responses to Argentina's request on 10 September 2013.
1.34.
On 16 September 2013, the Panel issued its first preliminary ruling to the parties, copying the third parties. This ruling addressed the broader issue raised by Argentina in its preliminary ruling request, i.e. whether the alleged RTRRs are part of the Panel's terms of reference.39 In its ruling, the Panel concluded that the alleged RTRRs are within the Panel's terms of reference and that the characterization of the alleged RTRRs as a single "overarching measure" in the complainants' panel requests did not expand the scope or change the essence of the dispute. The Panel decided that it would address the third issue raised by Argentina, i.e. whether the complainants' "as applied" claims against the alleged RTRRs are outside the Panel's terms of reference, as appropriate, in the light of the parties' arguments in the course of the proceedings. The Panel invited the parties to express their views regarding the circulation of the preliminary ruling to the Members.
1.35.
On 17 September 2013, the complainants submitted a joint communication to the Panel expressing no objection to the circulation of the preliminary ruling, based on the understanding that circulation would only occur if there was no objection by any of the parties and if parties were given an opportunity to comment on the preliminary ruling at the time of the interim review.40 On 19 September, Argentina submitted a communication to the Panel opposing the circulation of the preliminary ruling.41 In its written questions after the first substantive meeting sent on 30 September 2013, the Panel asked Argentina to explain why, in its opinion, the Panel should not circulate to WTO Members the preliminary ruling adopted on 16 September.42 In its response submitted on 11 October, Argentina stated that it would seem premature to circulate the preliminary ruling to WTO Members because the Panel had not ruled on two of the arguments raised by Argentina related to the complainants' claims regarding specific instances of application of the alleged RTRRs.43
1.36.
On 20 November 2013, the Panel issued a second preliminary ruling to address the pending issues raised by Argentina's request.44 In its ruling, the Panel reiterated that the alleged RTRRs are part of the Panel's terms of reference. The Panel also concluded that: (a) whether Japan presents enough arguments and evidence in the course of the proceedings to sustain its request for findings on those measures "as such" and "as applied" is a matter that would be addressed by the Panel in its final report; and, (b) the 23 measures described by the European Union in its first written submission as "specific instances" of application of alleged RTRRs do not constitute "measures at issue" in the present dispute. The Panel requested the views of the parties regarding the circulation of the two preliminary rulings. On 26 November, the complainants submitted a joint communication to the Panel expressing no objection to the circulation of the preliminary rulings, based on the understanding that the parties would have the opportunity to comment on the report during the interim review.45 On 26 November, Argentina sent a communication to the Panel objecting to the circulation of the two preliminary rulings.46 The Panel decided that the rulings would be incorporated as an integral part of the Panel's findings in these reports, subject to any changes that may be necessary in the light of comments received from the parties during the interim review.47

1.3.5 Consultation with the World Customs Organization (WCO)

1.37.
On 13 November 2013, the Panel sent a communication to the parties proposing to seek the assistance of the World Customs Organization's Secretariat (WCO Secretariat) to clarify certain aspects related to the SAFE Framework of Standards to Secure and Facilitate Global Trade (SAFE Framework).48 The Panel attached a draft letter to be addressed to the WCO Secretariat together with the draft list of questions to be addressed. On 19 November 2013, the parties submitted their comments on the proposed course of action and on the list of questions to be addressed to the WCO Secretariat.
1.38.
On 26 November 2013, having taken the parties' comments into consideration, the Panel sent a communication with a list of questions to the WCO Secretariat. On 2 December 2013, the WCO responded to the Panel. The Panel invited the parties to express their views on the responses received from the WCO. On 14 January 2014, the Panel received the parties' comments on the responses from the WCO Secretariat, as part of the parties' responses to the questions posed by the Panel after the second substantive meeting.

2 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

2.1.
The European Union requests that the Panel find that:

a. The requirement for the Advance Sworn Import Declaration (Declaración Jurada Anticipada de Importación,DJAI) is inconsistent with Argentina's obligations under Articles XI:1, X:1, and X:3(a) of the GATT 1994, as well as under Articles 1.3, 1.4(a), 1.6, 3.2, 3.3, and 3.5(f) of the Agreement on Import Licensing Procedures49; and,

b. The Restrictive Trade Related Requirements (RTRRs) are inconsistent with Argentina's obligations under Articles XI:1 and III:4 of the GATT 1994, as well as under Article X:1 of the GATT 1994; alternatively, the application of one or more RTRRs in certain specific instances is inconsistent with Argentina's obligations under Articles XI:1 and/or III:4 of the GATT 1994.50

2.2.
The European Union further requests that the Panel recommend that Argentina bring its measures into conformity with its WTO obligations.51
2.3.
The United States requests that the Panel find that:

a. The requirement for the Advance Sworn Import Declaration (DJAI) is inconsistent with Argentina's obligations under Articles XI:1 and X:3(a) of the GATT 1994, as well as under Articles 1.4(a), 1.6, 3.2, 3.3, 3.5(f), 5.1, 5.2, 5.3, and 5.4 of the Agreement on Import Licensing Procedures52; and,

b. The Restrictive Trade Related Requirements (RTRRs) are inconsistent with Argentina's obligations under Articles XI:1 and X:1 of the GATT 1994.53

2.4.
Japan requests that the Panel find that:

a. The requirement for the Advance Sworn Import Declaration (DJAI) is inconsistent with Argentina's obligations under Articles XI:1, X:3(a), and X:1 of the GATT 1994, as well as under Articles 1.3, 1.4(a), 1.6, 3.2, 3.3, 3.5(f), 5.1, 5.2, 5.3, and 5.4 of the Agreement on Import Licensing Procedures54; and,

b. The Restrictive Trade Related Requirement (RTRR) is inconsistent with Argentina's obligations under Articles XI:1, III:4, and X:1 of the GATT 1994, in each of the following three respects: (i) the RTRR as an unwritten rule or norm as such; (ii) the RTRR as an unwritten practice or policy, as confirmed by the systematic application of the measure; and, (iii) the RTRR's application in particular instances, as identified in the complainants' submissions.55

2.5.
Argentina requests that the Panel reject the complainants' claims in this dispute in their entirety. In Argentina's view:

a. The Advance Sworn Import Declaration (DJAI) is a customs formality established in accordance with Article VIII of the GATT 1994 and the World Customs Organization's SAFE Framework.56 Alternatively, Argentina argues that the complainants have failed to establish that the DJAI procedure is a quantitative restriction under Article XI:1 of the GATT 1994 or is in breach of Articles X:3(a) and X:1 of the GATT 199457;

b. Argentina also argues that the DJAI is not an import licence, but even if it were found to be an import licence, it is a procedure that is used for customs purposes and is therefore not within the scope of the Agreement on Import Licensing Procedures.58 Alternatively, Argentina also argues that the complainants have failed to establish that the DJAI is in breach of the Agreement on Import Licensing Procedures59;

c. With respect to the alleged Restrictive Trade Related Requirements (RTRRs), Argentina initially argued that these measures are outside the Panel's terms of reference.60 Argentina has subsequently argued that the complainants have failed to prove the existence of an unwritten "overarching" measure of general and prospective application that would support their claims against the alleged RTRRs.61

3 ARGUMENTS OF THE PARTIES

3.1.
The arguments of the parties are reflected in their executive summaries, provided to the Panel in accordance with paragraph 19 of the Working Procedures adopted by the Panel (see Annexes B-1, B-2, B-3, B-4, B-5, B-6, B-7, and B-8).

4 ARGUMENTS OF THE THIRD PARTIES

4.1.
The arguments of Australia, Canada, Israel, Korea, Norway, Saudi Arabia, Chinese Taipei, and Turkey are reflected in their executive summaries, provided in accordance with paragraph 20 of the Working Procedures adopted by the Panel (see Annexes C-1, C-2, C-3, C-4, C-5, C-6, C-7, and C-8). China, Ecuador, Guatemala, India, Switzerland, and Thailand did not submit written or oral arguments to the Panel.

5 INTERIM REVIEW

5.1 INTRODUCTION

5.1.
On 21 May 2014, the Panel submitted its Interim Reports to the parties. On 4 June 2014, the European Union, the United States, Japan, and Argentina each submitted written requests for the review of precise aspects of the Interim Reports pursuant to Article 15.2 of the DSU. On 11 June 2014, the European Union, the United States, and Japan submitted comments on a number of requests for review presented by Argentina. On the same date, Argentina submitted comments on a number of requests for review presented by the European Union, the United States, and Japan. None of the parties requested an interim review meeting with the Panel.
5.2.
In accordance with Article 15.3 of the DSU, this section of the panel reports sets out the Panel's response to the arguments made by the parties at the interim review stage, providing explanations where necessary. The Panel thoroughly reviewed and considered the parties' requests for review before issuing these final reports. As explained below, the Panel modified aspects of its reports in the light of the parties' comments where it considered it appropriate to do so. The Panel turns now discuss the parties' comments on the Panel's Interim Reports.
5.3.
Before doing so, however, we make the following observations. First, the numbering of paragraphs and footnotes in the final reports has changed from the Interim Reports. The text below refers to the paragraph numbers in the Interim Reports. Moreover, the Panel notes that this section forms an integral part of its findings in the present case.

5.2 COMMENTS ON THE PANEL'S INTERIM REPORTS

5.2.1 General comments

5.4.
The parties submitted several editorial revisions as well as other linguistic changes, which were not contested by the other parties. The Panel made these adjustments. The Panel also made minor editorial and non-substantive consequential changes as a result of other adjustments. The Panel also corrected typographical errors and made other editorial amendments throughout the reports, including those identified by the parties in paragraphs 1.16, 2.46, 6.11, 6.19, 6.28, 6.68, 6.98, 6,116, 6,144, 6,156, 6,158, 6,161, 6,164, 6,197, 6,200, 6,228, 6,230, 6,241, 6,243, 6,248, 6,258, 6,261, 6,301, 6,313, 6,317, 6,363, 6,366, 6,393, 6,426, 6,428, 6,451, 6,454, 6,456, 6,473, and 6,720.
5.5.
In addition, the parties pointed to a number of wording errors in the Panel's findings. The parties also made a number of specific suggestions to improve wording. The Panel adjusted its reports accordingly and also made related changes, including in paragraphs 1.36, 6.15, 6.19, 6.21, 6.45, 6.61, 6.62, 6.64, 6.67, 6,119, 6,165, 6,171, 6,196, 6,256, 6,358, 6,372, 6,413, 6,425, 6,426, 6,427, 6,435, 6,474, 6,483, 6,497, and 6,498.
5.6.
In specific cases, the parties requested that the Panel adjust its reports to more fully and/or accurately reflect their arguments on specific points. The Panel generally accepted these requests, and made related changes including in paragraphs 3.1, 6.2, 6.49, 6.62, 6.95, 6.97, 6,117, 6,136, 6,270, 6,307, 6,328, 6,431, 6,491, and 6,512.
5.7.
The parties requested that the Panel clarify the description of certain aspects of the measures at issue. The Panel adjusted its reports accordingly and made a number of related changes, including in paragraphs 6.57, 6.61, 6,176, 6,207, 6,211, 6,225, 6,340, 6,387, 6,388, 6,390, 6,397, 6,401, 6,407, and 6,410.
5.8.
The United States and Japan pointed to some errors in the section containing the Panel's legal conclusions. The Panel adjusted its reports accordingly in paragraphs 7.5, 7.6, 7.7 and 7.9, in the reports corresponding to the complaints by the United States and by Japan.

5.2.2 Specific comments

5.2.2.1 Judicial economy

5.9.
The United States requested that the Panel refrain from exercising judicial economy with respect to its claim under Article X:1 of the GATT 1994 against the TRRs measure. In its view, "Argentina is to publish measures of this type, regardless of whether the measures are consistent with Article XI:1 of the GATT 1994".62 In the United States' view, absent a finding by the Panel on this claim, there may be a lack of clarity as to whether Argentina must publish any measures taken to comply in a manner consistent with Article X:1 of the GATT 1994.63
5.10.
Similarly, Japan requested that the Panel refrain from exercising judicial economy with respect to its claims under Article X:1 of the GATT 1994 against the DJAI procedure and the TRRs measure.64
5.12.
In the Panel's view, in the light of the Panel's findings regarding the TRRs measure and the DJAI procedure, additional findings regarding the same measures under Article X:1 of the GATT 1994 were not necessary or useful in resolving the matter at issue. Moreover, given the Panel's findings that the TRRs measure and the DJAI procedure constitute restrictions on the importation of goods and are thus inconsistent with Article XI:1 of the GATT 1994, as well as the Panel's finding in the complaint brought by Japan that the TRRs measure, with respect to its local content requirement, is inconsistent with Article III:4 of the GATT 1994, whether Argentina published its measures in a manner consistent with Article X:1 of the GATT 1994 was no longer relevant for purposes of resolving this dispute.

5.2.2.2 TRRs measure

5.14.
The European Union requested that the Panel clarify in footnote 289 to paragraph 6,156 of its reports that the 29 agreements to which it refers correspond to the same 30 agreements that the Panel asked Argentina to provide copies of in Panel questions Nos. 63 to 92.65 The Panel made adjustments accordingly. The 29 agreements identified in footnote 289 correspond to the 30 agreements that the Panel requested copies of in Panel questions Nos. 63 to 92. Although the Panel originally referred to 30 agreements in its questions, there is no evidence on record to suggest that the Argentine Government signed more than one agreement with the supermarket sector, with the result that the total number of agreements relevant to our reports is 29.
5.15.
The United States requested that the last sentence of paragraph 6,207 be adjusted so as to cover the automotive, agricultural machinery, and pharmaceutical sectors.66 Argentina rejected this request, stating that the complainants' evidence was not sufficient to establish that an alleged "import substitution requirement" operated as a condition for the importation of goods into Argentina. In its Interim Reports, the Panel indicated one sector in which the local content requirement was imposed as a condition to import, namely, the motorcycles sector. The evidence on record, however, and particularly the exhibits pointed out by the United States in its request, demonstrate in the Panel's view that the local content requirement has also been imposed on the agricultural machinery sector as a condition to import. The Panel made adjustments accordingly in paragraph 6,207.

5.2.2.3 DJAI procedure

5.16.
The United States requested that the Panel review its description of how a DJAI acquires "registered" status in paragraph 6,370 of the Panel's Interim Reports. According to the United States, "it is not the importer who designates the DJAI as 'registered', but rather it occurs through the SIM system". In the United States' view, "[i]t is unclear whether this happens automatically, or after AFIP or another agency takes an action to assign the 'registered' designation".67 Argentina rejected this suggestion, stating that the United States' description of the DJAI procedure is factually incorrect. In Argentina's view, the Panel accurately described the DJAI procedure in the first sentence of paragraph 6,370 of its Interim Reports in noting that the declarant may choose the option "Register" (Oficializar) to formally register a DJAI. The Panel agrees with Argentina. The Panel thus declined to make the amendment requested by the United States.
5.17.
Argentina requested that the Panel adjust the text of paragraphs 6,373 and 6,377 of its Interim Reports to better reflect that participating agencies must follow the model agreement foreseen in AFIP General Resolution 3256/2012, that the SCI became part of the DJAI procedure through SCI Resolution 1/2012, and that both legal instruments were published in Argentina's official gazette. All three complainants reject Argentina's request. In their view, there are a number of crucial aspects that are not contained in the model agreement foreseen in AFIP General Resolution 3256/2012 (such as the scope of operation covered by the participating agencies, the list of goods the agency can review, and the time-period during which the participating agencies can enter observations). The Panel made some adjustments to paragraphs 6,373 and 6,377 to take into account both Argentina's requested amendments and the complainants' comments in this respect.

6 FINDINGS

6.1 GENERAL ISSUES

6.1.1 Special and differential treatment

6.1.
Pursuant to Article 12.11 of the DSU:

[W]here one or more of the parties is a developing country Member, the panel's report shall explicitly indicate the form in which account has been taken of relevant provisions on differential and more-favourable treatment for developing country Members that form part of the covered agreements which have been raised by the developing country Member in the course of the dispute settlement procedures.

6.2.
In the course of these proceedings, Argentina has referred to objectives that guide its economic policy, such as the growth of foreign demand and of its domestic market, strong industrial and productive development, the promotion of social inclusion, improved income distribution, poverty alleviation, and the reduction of unemployment.68
6.3.
Objectives such as those cited by Argentina are common to many WTO Members, who have recognized in the preamble to the WTO Agreement that trade and economic relations,

[S]hould be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with [the] respective needs [of WTO Members] and [their] concerns at different levels of economic development …69

6.4.
In addition, the preamble to the WTO Agreement recognizes that the reciprocal and mutually advantageous arrangements entered into by WTO Members can contribute to the achievement of these objectives. The preamble also recognizes the need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development.70
6.5.
In other words, the WTO agreements highlight the positive role international trade can play as part of the development policies of developing and least developed country Members. This realization explains why sovereign nations, such as Argentina, voluntarily accept the international obligations that are the result of subscribing to the WTO Agreement and becoming Members of the World Trade Organization. As noted by the Appellate Body:

It is self-evident that in an exercise of their sovereignty, and in pursuit of their own respective national interests, the Members of the WTO have made a bargain. In exchange for the benefits they expect to derive as Members of the WTO, they have agreed to exercise their sovereignty according to the commitments they have made in the WTO Agreement.71

6.6.
At the same time, the WTO agreements contain provisions that allow for differential and more favourable treatment for developing countries, as well as provisions that allow Members to deviate from their WTO obligations under certain specified conditions in order to pursue legitimate objectives.
6.7.
Argentina did not raise, in the course of the proceedings, any of the provisions that allow for differential and more favourable treatment for developing countries, nor does any of them appear to be relevant for the resolution of the specific matter in the dispute.
6.8.
In any event, nothing in the Panel's rulings calls into question the ability of WTO Members to pursue their development policies, such as those identified by Argentina, in a manner consistent with the overall objectives stated in the preamble of the WTO Agreement and their commitments under the WTO agreements.
6.9.
Finally, the DSU provides in Article 12.10 that:

[I]n examining a complaint against a developing country Member, the panel shall accord sufficient time for the developing country Member to prepare and present its argumentation.

6.10.
When adopting the timetable for the proceedings, the Panel took into account the need to allow all parties, and especially Argentina as a developing country respondent, sufficient time to prepare and submit their respective arguments. The Panel noted in this regard that Argentina would be responding to arguments submitted by three different complainants. Accordingly, at its request, Argentina was given five weeks after having received the complainants' first written submissions to file its own first submission, instead of the two to three weeks envisioned in Appendix 3 of the DSU.72

6.1.2 Issues related to the Panel's terms of reference

6.11.
The current dispute has raised issues concerning the Panel's terms of reference. As explained above73, during the course of the proceedings, Argentina requested the Panel to rule that certain aspects of the measures challenged by the complainants fall outside the Panel's terms of reference.74 Argentina originally raised the matter in its first written submission, asking the Panel to resolve the issue by means of a preliminary ruling.75
6.12.
Argentina's request raised three main issues with respect to the complainants' claims relating to the alleged "restrictive trade-related requirements" (RTRRs): (a) whether the alleged RTRRs were identified by the complainants as a measure at issue in their requests for consultations; (b) whether the reference to the alleged RTRRs as a broad unwritten "overarching measure" in the complainants' panel requests "expanded the scope" and "changed the essence" of the dispute; and, (c) whether the complainants identified, either in their requests for consultations or in their panel requests, the measures subject to their claims against the alleged RTRRs "as applied".
6.13.
In its request for a preliminary ruling, Argentina requested the Panel to resolve these issues "preferably after the First Substantive Meeting of the Panel with the Parties, in a manner that effectively preserves Argentina's due process rights".76 Argentina also noted it would not address in its first submission any of the complainants' arguments regarding the so-called RTRRs, because in Argentina's opinion this measure was not part of the Panel's terms of reference.77
6.14.
As explained above78, in response to Argentina's request, the Panel issued two separate preliminary rulings, the first one on 16 September 2013 (before the first meeting with the parties), and the second one on 20 November 2013 (before the second meeting with the parties). In its first preliminary ruling, the Panel concluded that: (a) the complainants properly identified the alleged RTRRs in their requests for consultations and panel requests, as measures at issue in the present dispute and, therefore, these measures form part of the Panel's terms of reference79; and (b) the characterization of the alleged RTRRs as a single "overarching measure" in the European Union's panel request does not expand the scope or change the essence of the dispute.80 In its second preliminary ruling, the Panel further concluded that (a) whether Japan presents enough arguments and evidence in the course of the proceedings to sustain its request for findings on those measures "as such" and "as applied" is a matter that would be addressed by the Panel in its final report81; and (b) the 23 measures described by the European Union in Section 4.2.4 of its first written submission as "specific instances" of application of alleged RTRRs had not been identified as "specific measures at issue" in the European Union's panel request and, therefore, are not part of the Panel's terms of reference.82
6.15.
As noted in paragraph 1.36 above and as indicated at the time when they were issued, both preliminary rulings constitute an integral part of these reports. Although the rulings were provided to the parties at the time of their adoption (16 September and 20 November 2013), and the first preliminary ruling was also copied to the third parties, the Panel considers it useful to make the following additional comments.83
6.16.
The issues raised by Argentina concern the Panel's jurisdiction over certain claims advanced by the complainants with respect to certain measures. The Panel is of the view that a resolution of these issues is essential before the Panel can address the substance of the complainants' allegations.
6.17.
As noted above84, in its first written submission, Argentina requested that a preliminary ruling be issued by the Panel "preferably after the First Substantive Meeting of the Panel" and "in a manner that effectively preserves Argentina's due process rights".85 The Panel issued its first preliminary ruling after having heard the views of all parties (and those third parties that expressed an opinion), but before the first meeting with the parties (the first preliminary ruling was issued eight days before the meeting with the parties took place).
6.18.
At the first meeting with the Panel, Argentina expressed its disagreement with what it called "the Panel's very summary decision to issue a preliminary ruling without first providing [Argentina] with an opportunity to respond to the complainants' submissions".86 Argentina added it "had a legitimate expectation that it would have more than a single opportunity to express its views with respect to its preliminary objection".87
6.19.
The DSU does not contain rules on preliminary rulings nor on the procedures that panels should follow when dealing with this type of request from any of the parties.88 Paragraph 6 is the only provision in the Panel's Working Procedures dealing explicitly with preliminary ruling requests; it does not set out any rules regarding the timing of the Panel's decision. Moreover, there are no grounds for Argentina's assertion that it "had a legitimate expectation that it would have more than a single opportunity to express its views with respect to its preliminary objection".89 There is no support for such an expectation, either in the relevant rules of the DSU or the Panel's Working Procedures, or in the practice of previous WTO panels dealing with requests concerning a panel's terms of reference.90 Nothing would have prevented the Panel or any of the parties from proposing special procedures for the adjudication of the issues raised by Argentina's request for a preliminary ruling, if that was justified.91 No such special procedures were proposed by any of the parties or considered necessary by the Panel.
6.20.
In the Panel's view, there were sound reasons to address the issues raised by Argentina through a separate preliminary ruling. Once the Panel had heard all parties (as well as those third parties who expressed an opinion on the issue) and had sufficient information so as to be able to issue an early ruling on the matters raised by Argentina's request, it would have been unnecessary to delay issuing its ruling. An early decision would allow parties to focus on the issues determined to form part of the Panel's terms of reference.92 Moreover, the Panel noted Argentina's decision not to address in its first submission any of the complainants' arguments regarding one of the two measures at issue in the dispute (the alleged RTRRs), given its view that these fell outside the Panel's terms of reference.93 In light of Argentina's decision, the Panel considered that an early preliminary ruling would be instrumental in ensuring a proper development of the proceedings.
6.21.
Accordingly, the Panel issued its first preliminary ruling, dealing with the broader issue raised by Argentina, namely whether the alleged RTRRs are part of the Panel's terms of reference, as soon as it had the necessary elements to do so. Argentina has not explained how its due process rights would have been served by delaying a decision on this preliminary issue. On the contrary, the Panel's first preliminary ruling ensured that Argentina could address the complainants' arguments regarding the alleged RTRRs from the time of the Panel's first meeting. Had the Panel delayed ruling on this issue, Argentina might not have provided arguments on this issue until much later in the proceedings, on the assumption that the alleged RTRRs were not part of the Panel's terms of reference.
6.22.
Argentina stated in its first written submission that it would not respond to the complainants' arguments regarding the alleged RTRRs because, in its view, this measure was not part of the Panel's terms of reference.94 This was not the decisive factor in the content or procedure of the Panel's preliminary ruling. It was, however, a consideration that further justified an early resolution of the matter. As noted by the Panel in its first preliminary ruling:

In the Panel's view, an early preliminary ruling is appropriate in the interest of due process, and especially in order to allow parties and third parties to engage in a substantive discussion of the claims raised by the complainants with respect to the RTRRs.95

6.23.
The Panel therefore disagrees with Argentina's characterization of the first preliminary ruling as a "very summary decision" ("sumarísima decisión").96 In the Panel's view, the preliminary ruling issued on 16 September 2013 was a well-reasoned decision (contained in 13 pages), based on arguments received from Argentina, those of all three complainants, the views expressed by third parties who made comments (Australia97 and Chinese Taipei98), and the Panel's own evaluation.
6.24.
The remaining issues raised by Argentina concerning the Panel's terms of reference (namely, whether the Panel's terms of reference covered the complainants' separate claims against the alleged RTRRs "as applied", as well as 23 specific measures identified by the European Union in its first written submission as "instances of application" of the alleged RTRRs) were similarly resolved as soon as the Panel had the necessary elements to enable it to make a decision. The resolution of these remaining issues required the Panel to gain a better understanding of the nature of the complainants' claims and of Argentina's concerns than that which the Panel had acquired by the time of the first preliminary ruling. It was unclear to the Panel, by the time of the first preliminary ruling: (a) whether any of the complainants was requesting separate rulings on the alleged RTRRs "as applied"; and (b) whether and how the 23 measures identified by the European Union in its first written submission related to the measures that had been identified in the European Union's request for consultations and panel request. These issues were debated in the course of the Panel's first meeting with the parties and were explored through the Panel's questions to parties during and after the meeting.99 After receiving additional clarifications from the parties, the Panel issued its second preliminary ruling.

6.1.3 The Panel's duty to make an objective assessment of the matter and the treatment of evidence

6.25.
In the following section the Panel will describe its function under the DSU, explain the respective duties of the parties in the proceedings and articulate some of the challenges the Panel confronted when assessing the facts of the case.

6.1.3.1 The Panel's function and the parties' duties

6.26.
According to Article 11 of the DSU:

The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements.

6.27.
As articulated by the Appellate Body, the general rule in dispute settlement procedures is that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence.100 Following this principle, the Appellate Body has explained that the complaining party in any given case should establish a prima facie case of inconsistency of a measure with a provision of the WTO covered agreements, before the burden of showing consistency with that provision or defending it under an exception is to be undertaken by the defending party.101 In other words, "a party claiming a violation of a provision of the WTO Agreement by another Member must assert and prove its claim."102
6.28.
According to the Appellate Body, a prima facie case is "one which, in the absence of effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the complaining party presenting the prima facie case."103 To establish a prima facie case, the party asserting a particular claim must adduce evidence sufficient to raise a presumption that what is claimed is true. If the complaining party "adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption."104 In this regard, the Appellate Body has stated that:

[P]recisely how much and precisely what kind of evidence will be required to establish such … [presumptions] will necessarily vary from measure to measure, provision to provision, and case to case.105

6.29.
In this dispute, the initial burden of proof rests upon the complainants to establish a prima facie case that the measures at issue are inconsistent with the provisions they have identified from the WTO covered agreements. If the Panel finds the complainants have established a prima facie case of inconsistency of the challenged measures with the relevant provisions, the burden will then fall on Argentina to rebut such claims.
6.30.
As noted by the Appellate Body, the above:

[D]oes not imply that the complaining party is responsible for providing proof of all facts raised in relation to the issue of determining whether a measure is consistent with a given provision of a covered agreement. In other words, although the complaining party bears the burden of proving its case, the responding party must prove the case it seeks to make in response.106

6.32.
In order to exercise their function of making "an objective assessment of the matter" and especially of making "an objective assessment of the facts of the case", panels are granted, pursuant to Article 13.1 of the DSU, the authority "to seek information and technical advice from any individual or body which [they deem] appropriate". The same provision adds that "[a] Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate".
6.33.
In Canada – Aircraft, the Appellate Body referred to "the duty of a Member to comply with the request of a panel to provide information", noting that under Article 13.1 of the DSU "Members are... under a duty and an obligation to 'respond promptly and fully' to requests made by panels for information".107
6.34.
In the absence of such collaboration, and pursuant to its duty to make an objective assessment of the facts of the case, a panel is entitled to draw appropriate inferences. In this context, the Appellate Body has stated that:

Where a party refuses to provide information requested by a panel under Article 13.1 of the DSU, that refusal will be one of the relevant facts of record, and indeed an important fact, to be taken into account in determining the appropriate inference to be drawn.108

6.35.
The Appellate Body further clarified that panels are to draw inferences taking into account all the relevant facts.109 As noted by the Appellate Body:

The DSU does not purport to state in what detailed circumstances inferences, adverse or otherwise, may be drawn by panels from infinitely varying combinations of facts. Yet, in all cases, in carrying out their mandate and seeking to achieve the "objective assessment of the facts" required by Article 11 of the DSU, panels routinely draw inferences from the facts placed on the record. The inferences drawn may be inferences of fact: that is, from fact A and fact B, it is reasonable to infer the existence of fact C. Or the inferences derived may be inferences of law: for example, the ensemble of facts found to exist warrants the characterization of a "subsidy" or a "subsidy contingent … in fact … upon export performance". The facts must, of course, rationally support the inferences made, but inferences may be drawn whether or not the facts already on the record deserve the qualification of a prima facie case. The drawing of inferences is, in other words, an inherent and unavoidable aspect of a panel's basic task of finding and characterizing the facts making up a dispute.110 (emphasis added)

6.36.
Such inferences may inform the Panel's consideration of the facts and evidence on the record in determining whether either the complainants or the respondent have met their respective burdens of proof.

6.1.3.2 The Panel's objective assessment of the facts

6.37.
In the present case, the Panel's task of making an objective assessment of the facts has been especially challenging for two reasons.
6.38.
Firstly, one of the two broad measures at issue in the dispute (the alleged RTRRs) is unwritten. Determining the existence, nature, and characteristics of this measure has required careful consideration by the Panel. Secondly, despite repeated requests from the Panel, the parties failed to provide certain documents and information that were relevant for the Panel's task.

6.1.3.2.1 Unwritten measure

6.39.
In their panel requests, the complainants identify a measure that consists of a combination of actions that they refer to as the "Restrictive Trade-Related Requirements" (RTRRs). Neither the existence nor the nature and characteristics of the alleged measure are contained in any law, regulation, administrative act or official publication.
6.40.
Argentina asserts that in US – Zeroing (EC) the Appellate Body established a high standard for challenging unwritten measures (such as the measure constituted by the alleged RTRRs). According to Argentina, this legal standard consists of three elements that a complainant must prove: (a) that the measure is attributable to a WTO Member; (b) the precise content of the measure; and, (c) the general and prospective application of the measure.111
6.41.
Previous WTO panels and the Appellate Body have recognized that unwritten measures can be challenged in WTO dispute settlement. As held by the Appellate Body in US – Corrosion-Resistant Steel Sunset Review, "[i]n principle, any act or omission attributable to a WTO Member can be a measure of that Member for purposes of dispute settlement proceedings".112 In US – Zeroing (EC), referring to a challenge against rules or norms "as such", the Appellate Body found no basis to conclude that these measures could be challenged "only if they are expressed in the form of a written instrument".113 Accordingly, nothing prevents a Member from challenging an unwritten measure through the WTO dispute settlement mechanism.
6.42.
In EC and certain member States – Large Civil Aircraft, the Appellate Body commented that, "when a challenge is brought against an unwritten measure, the very existence and the precise contours of the alleged measure may be uncertain".114 Accordingly, complainants are expected "to identify such [alleged unwritten] measures in their panel requests as clearly as possible".115 In turn, when considering a challenge against an unwritten measure, a panel must: first, ascertain the existence of the measure; and, second, examine the consistency of the measure with the relevant provisions of the covered agreements.116 Panels and the Appellate Body have also referred to the challenges of proving the existence of unwritten measures in dispute settlement proceedings and to the need for the complainants to clearly establish, through arguments and supporting evidence, at least: (a) that the measure is attributable to the responding Member; and (b) its precise content. Additionally, if a complainant requests a finding about a measure "as such", it also needs to establish that the measure has general and prospective application.117 Therefore, in the Panel's view, a determination that a measure has general and prospective application is not essential in all challenges against unwritten measures, but only if a challenge is against the measure "as such".

6.1.3.2.2 The Panel's treatment of the evidence

6.43.
The Panel was confronted with a large number of exhibits provided by the parties (approximately 900 exhibits, of which more than 90% were submitted by the complainants).118 These exhibits include, inter alia, copies of domestic laws, regulations and policy documents; communications addressed to Argentine officials by private companies; statements by Argentine officials and notes posted on websites of the Argentine Government119; articles in newspapers and magazines, mostly published in Argentina; statements by company officials; data from industry surveys; reports prepared by market intelligence entities; trade statistics; and information regarding the economic performance of Argentina in recent years. The Panel has considered each of the exhibits provided by the parties on its own merits, in order to assess its appropriate relevance, credibility, weight and probative value. As has been noted by the Appellate Body, a panel enjoys discretion in assessing whether a given piece of evidence is relevant for its reasoning120 and a panel is not required to discuss, in its report, each and every piece of evidence provided by the parties.121
6.44.
Notwithstanding the abundance of evidence, the Panel's task of establishing the existence and precise contours of the unwritten measure at issue has required considerable time, effort and careful analysis. According to the complainants, the requirement imposed on importers and other economic operators that they undertake certain trade-related commitments as a condition to import into Argentina is reflected in agreements between the Argentine Government and the respective importers or economic operators, or in letters addressed by the importers or economic operators to the Argentine Government, which describe the specific commitments. Ideally, the Panel should have been provided access to these documents to verify the existence, nature and characteristics of the alleged restrictive trade-related requirements (RTRRs).122 The Panel, however, had access to copies of only some of the relevant letters.123 The Panel requested the parties, on several occasions, to provide copies of certain specific agreements. It also asked the complainants to provide copies of letters addressed by economic operators in Argentina to officials in the Argentine Government on which the complainants relied. These requests were addressed to the parties in the Panel's list of questions after the first substantive meeting (dated 30 September 2013), in its communication to the parties dated 6 November 2013, and in its list of questions after the second substantive meeting (dated 19 December 2013).124
6.45.
In response to the Panel's request after the first substantive meeting, the European Union stated that, although it was in possession of various agreements signed between the Argentine Government and importers or economic operators, it had not been authorized by the private companies concerned to divulge the agreements or to provide their identities.125 The European Union added that Argentina is in possession of the agreements and letters and is in a better position to provide them to the Panel.126 The United States declared it was not in possession of any agreements or documents containing trade-related commitments beyond what they had already provided to the Panel127; the United States also stated that "[a]ll such agreements, letters and emails are in the possession of individual companies and Argentina".128 Japan indicated that the evidence requested was in Argentina's sole possession; Japan also stated that, "in most instances, Argentina is the only party to this dispute with direct access to the documents, and it is also the only party in a position to assuage the fears of individual economic operators that are reluctant to reveal the details of their commitments undertaken pursuant to the RTRR".129 Indeed, all the complainants indicated, as a reason to refrain from providing the copies of the agreements and letters requested by the Panel, that the importers and economic operators that are signatories of these agreements and letters had not authorized the complainants to provide copies to the Panel. The complainants argue that, given the discretionary nature of Argentina's import system, the importers and economic operators fear retaliatory actions from the Argentine Government, including concerning pending or future import applications, if their identities are disclosed.130
6.46.
Argentina, for its part, stated it "has not denied or called into question the existence" of the 30 agreements that were listed by the Panel in its written questions.131 However, in its response to the request made by the Panel after the first substantive meeting to provide copies of agreements between the Argentine Government and the importers or economic operators identified in an Annex, Argentina stated that:

[E]ven if the evidence were accepted in its entirety, and notwithstanding its inadequacies, it would not be sufficient to establish that the alleged "overarching" RTRR measure constitutes a single, unwritten measure with precise content, attributable to the State and with general and prospective application. These are the essential elements of the complainants' case, and the evidence submitted by the complainants is insufficient to establish them.132

6.47.
Argentina provided an identical response to the Panel's request for information published in notes posted on websites of the Argentine Government concerning trade-related commitments announced by economic operators, as well as to a request concerning alleged trade-related demands (exigencias) made by the Argentine Government to economic operators.133
6.48.
In its response to the request made by the Panel after the second substantive meeting to provide copies of specific agreements between the Argentine Government and the importers or economic operators identified by the Panel, Argentina stated it has no obligation to make the case for the complainants.134 It further added that, as affirmed by the complainants, the copies of these agreements are not necessary for the settlement of the dispute.135
6.49.
On 22 October 2013, the Panel proposed the adoption of special procedures to address the concerns that had been expressed by the complainants about the reluctance of importers and economic operators to divulge the agreements they had signed or provide their identities. The procedures would enable the complainants to submit the information requested by the Panel in the confidence that the identity of the company or economic entity involved would not be disclosed. These procedures would have allowed parties to submit documents to an independent expert appointed by the Panel. This independent expert would have been asked to respond to a questionnaire prepared by the Panel after having consulted the parties on its contents. Neither the Panel nor any of the other parties would have had access to the documents submitted. The information about the content of the documents would have been provided through responses by the independent expert to Panel questions.136 Neither the complainants nor the respondent supported the adoption of these special procedures, and three of the parties (the United States, Japan, and Argentina) objected to them.137 In view of this lack of support and the objections raised, on 6 November 2013 the Panel informed the parties it had decided not to adopt the proposed special procedures.138
6.50.
After deciding not to adopt the proposed special procedures, the Panel reiterated its request for copies of the agreements signed between the Argentine Government and importers or economic operators, both in its communication of 6 November 2013, and in its list of questions after the second substantive meeting, dated 19 December 2013.139
6.51.
In its communications of 22 October 2013 and 6 November 2013, the Panel reminded the parties of the requirement under the DSU for their collaboration in submitting the information requested by the Panel; it also reminded the parties of the Panel's authority to draw appropriate inferences from a Member's refusal to provide information.140
6.52.
In EC – Hormones, the Appellate Body noted that Article 13 of the DSU enables panels to seek information and advice "as they deem appropriate in a particular case".141 In Argentina – Textiles and Apparel, the Appellate Body added that the same provision grants discretionary authority to panels enabling them to seek information from any relevant source.142 In US – Shrimp, the Appellate Body referred to the "comprehensive nature" of a panel's authority to seek information and technical advice from "any individual or body" it may consider appropriate, to ascertain the acceptability and relevance of the information or advice received, and to decide what weight to ascribe to that information or advice.143
6.53.
As noted by the Appellate Body in Canada – Aircraft:

It is clear from the language of Article 13 that the discretionary authority of a panel may be exercised to request and obtain information, not just "from any individual or body" within the jurisdiction of a Member of the WTO, but also from any Member, including a fortiori a Member who is a party to a dispute before a panel.144 (emphasis original)

6.54.
Regarding the responding party's role in the proceedings, the panel in Argentina – Textiles and Apparel stated that:

Another incidental rule to the burden of proof is the requirement for collaboration of the parties in the presentation of the facts and evidence to the panel and especially the role of the respondent in that process. It is often said that the idea of peaceful settlement of disputes before international tribunals is largely based on the premise of co-operation of the litigating parties. In this context the most important result of the rule of collaboration appears to be that the adversary is obligated to provide the tribunal with relevant documents which are in its sole possession. This obligation does not arise until the claimant has done its best to secure evidence and has actually produced some prima facie evidence in support of its case.145

6.55.
Notwithstanding the last part of the statement of the panel in Argentina – Textiles and Apparel, the Appellate Body has clarified that:

"[The] discretionary authority [of a panel] to seek and obtain information is not made conditional by this, or any other provision, of the DSU upon the other party to the dispute having previously established, on a prima facie basis, such other party's claim or defence. Indeed, Article 13.1 imposes no conditions on the exercise of this discretionary authority.146

6.1.3.2.3 General comments on the evidence provided by the parties

6.1.3.2.3.1 Agreements, letters and other information requested by the Panel

6.56.
As noted above147, the Panel made repeated attempts to obtain copies of specific agreements between the Argentine Government and importers or economic operators and of letters addressed by the importers or economic operators to the Argentine Government, which allegedly described specific trade-related commitments. Access to these documents would have facilitated the Panel's task of verifying the existence, nature and characteristics of the alleged trade-related requirements imposed by the Argentine Government.
6.57.
The Panel requested all parties for copies of those agreements and letters. The Panel also asked Argentina for information concerning trade-related commitments announced by Argentine officials and reflected on the web page of Government agencies, as well as alleged trade-related demands (exigencias) made by the Argentine Government to economic operators. Notwithstanding these requests, the parties provided the Panel with copies of only a few letters addressed to the Argentine Government by economic operators.148 The complainants also provided a certification by a notary public attesting to having been shown four agreements signed between Argentine government officials and private entities, as well as four documents signed by representatives of private companies established in Argentina and addressed to the Argentine Secretary of Domestic Trade. This certification also describes the content of various trade-related commitments contained in these documents.149
6.58.
The Panel is of the view that it was incumbent upon Argentina to provide copies of the agreements signed between the Argentine Government and importers or economic operators and of letters addressed by importers or economic operators to the Argentine Government, pursuant to the duty of collaboration stipulated in Article 13 of the DSU and confirmed by the Appellate Body on a number of occasions. As a party to these agreements and as the recipient of the letters, the Panel is of the view that Argentina was in the best position to do so.150
6.59.
Argentina's responses to the Panel that the evidence submitted by the complainants is insufficient to establish their case, or that Argentina is under no obligation to make the case for the complainants, are misplaced. There is nothing in the DSU that supports the proposition that, faced with a panel's request for specific information, a Member can decide whether that information is relevant for the settlement of a dispute or whether the other party has already made a prima facie case that would justify the panel's request. As noted above151, Members are under a duty and an obligation "to respond promptly and fully" to requests made by panels for information under Article 13.1 of the DSU.152 Otherwise, Article 13.1 of the DSU would be rendered meaningless and any party to a dispute "could, at will, thwart the panel's fact-finding powers and take control itself of the information-gathering process that Articles 12 and 13 of the DSU place in the hands of the panel". Such a situation would "prevent a panel from carrying out its task of finding the facts constituting the dispute before it and, inevitably, from going forward with the legal characterization of those facts".153
6.60.
The complainants also failed to provide copies of agreements signed between the Argentine Government and importers or economic operators or copies of letters addressed by importers or economic operators to the Argentine Government, which had been requested by the Panel. The complainants gave different responses as to whether they were in possession or not of these documents. As noted above154, the European Union stated it is in possession of various of the requested agreements155; the United States declared it is not in possession of any agreements or documents of the type requested, beyond what it already provided to the Panel156; and Japan indicated that the evidence requested is in Argentina's "sole possession"157 and that, "in most instances, Argentina is the only party to this dispute with direct access to the documents".158 All complainants declared that they had not been authorized by the importers or economic operators, who are signatories to these agreements and letters, to provide copies of these documents to the Panel or to divulge their identities, this for fear of possible retaliatory actions from the Argentine Government.159
6.61.
The Panel must assume that WTO Members engage in dispute settlement in good faith, as required under Article 3.10 of the DSU. Therefore, in the circumstances of this case, the Panel must assume that the complainants' explanation has been provided in good faith and that they are genuinely prevented from providing the information requested by the refusal of the private companies that are signatories to the agreements and letters to let them do so.160 Whether or not the concerns expressed by the private companies in withholding this authorization are valid is a separate issue, one on which the Panel does not need to rule.
6.62.
In its questions to the complainants, the Panel asked them to indicate the type of procedural rules that could be adopted by the Panel to protect information in a manner that would enable the submission of such information.161 The complainants responded that the type of rules for the protection of confidential information adopted by previous panels would be inadequate to address the concerns expressed by the private companies.162 The United States and Japan also objected to the special procedures proposed by the Panel on 22 October 2013, described above, including on the basis of considerations related to procedural fairness [due process].163
6.63.
The complainants have failed to provide copies of the agreements and letters requested by the Panel. However, in contrast to Argentina, the complainants: (a) submitted information to prove the existence and content of those agreements and letters; (b) are not party to these agreements or letters, and can therefore not be presumed to have direct access to these documents; and, (c) put forward a plausible motive for their failure to provide the requested copies, i.e. that they lacked authorization from the companies to release these documents.
6.64.
Due to the lack of cooperation or the inability to provide documentation on the part of the parties, the Panel has limited direct evidence of the agreements signed between the Argentine Government and importers or economic operators and of the letters addressed by importers or economic operators to the Argentine Government, that allegedly contain certain trade-related commitments. The Panel notes, as indicated above, that Argentina "has not denied or called into question" the existence of these agreements.164 In any event, the Panel has established the features of the trade-related requirements imposed by the Argentine Government from evidence, such as copies of domestic laws, regulations and policy documents; communications addressed to Argentine officials by private companies; statements by Argentine officials and notes posted on websites of the Argentine Government; articles in newspapers and magazines; statements by company officials; data from industry surveys; and reports prepared by market intelligence entities.
6.65.
There are some additional points to be made with respect to evidentiary matters. Argentina has questioned some of the documentary evidence provided by the complainants (articles from newspapers and magazines; statements by Argentine officials; statements by company officials; data from industry surveys; and reports prepared by market intelligence entities). The Panel will discuss below Argentina's objections.

6.1.3.2.3.2 Articles from newspapers and magazines

6.66.
Argentina has objected to the probative value in these proceedings of articles provided by the complainants from newspapers and magazines. Argentina indicated that the printed media referred to by the complainants "are connected directly or indirectly" with two media companies that "are engaged in an open conflict with the Argentine Government and in an attempt to discredit it".165
6.67.
In its questions posed after the first meeting with the parties, the Panel asked Argentina whether its objections extended to press releases and articles provided by the complainants from 28 media outlets different from the two newspaper groups initially objected to by Argentina.166 In its response, Argentina indicated that: (a) none of the evidence presented by the complainants is relevant to the Panel's task; (b) journalistic material, regardless of its source, cannot be "considered to have any probative value", because it can only be treated "as opinion pieces tainted with the ideology of those who wrote them and collected from third sources"; (c) "in Argentina there are few print media that are not integrated into the structure … or editorially aligned" with the two media companies identified by Argentina; and, (d) numerous press articles provided by the complainants refer to information originally published by the two companies identified by Argentina.167 Argentina did not provide specific comments in respect of the 28 specific media outlets identified in the Panel's question, nor did it clarify whether and how any of these 28 specific media outlets is in its view "integrated into the structure" or "editorially aligned" with the two newspaper groups objected to by Argentina.168
6.68.
In its questions posed after the second meeting with the parties, the Panel again asked Argentina to clarify whether the objections it had expressed extended to any of the 28 media outlets that were the source of exhibits provided by the complainants, different from the two media groups that had been identified by Argentina.169 In its response, Argentina reiterated its view that "[m]edia articles can … only be treated as journalistic opinion pieces … because they conform to an editorial line and the interests and ideology of the author and, in many cases, are derived from third sources". Argentina added that at least eight media outlet sources of the articles provided by the complainants (out of the 28 identified in the Panel's questions) simply compile information produced by sources such as the two companies to which it had objected. Finally, Argentina asserted that one of the two media groups it had objected to exerts "a decisive influence on the information published by [other] media" in Argentina.170
6.72.
Accordingly, in the absence of sound legal reasons to disregard specific exhibits, the Panel rejects Argentina's argument that journalistic material, regardless of its source, cannot be "considered to have any probative value".

6.1.3.2.3.3 Statements by Argentine officials

6.73.
The complainants referred in their submissions to numerous statements by high-ranking Argentine officials, including the President, the Minister of Economy and Public Finance, the Minister of Industry, the Minister of Agriculture, the Secretary of Domestic Trade, and the President of the Central Bank of Argentina.178
6.74.
Argentina has objected to the probative value of these statements. With respect to the quoted statements from Argentina's President, Argentina indicated that:

[I]t cannot be assumed or asserted that declarations made by a president with respect to policy objectives will necessarily be translated into a specific measure, and even if they were, there is no reason to expect that that measure would be implemented in such a way as to violate the national and multilateral legal system.179

6.75.
More generally, with respect to statements made by various high-ranking officials, Argentina indicated that:

[I]t cannot be maintained that, simply by having been made, these statements will result in the adoption of measures inconsistent with the multilateral commitments undertaken by the Argentine Republic.180

6.76.
Argentina also noted that:

Political statements about general guidelines of economic policy made by various Argentine officials are not essentially different from those normally made by most of the leaders and officials of other countries.181

6.77.
Argentina added that "statements by the President of Argentina are binding under Argentine law only when made under the powers granted to her by Article 99 of the National Constitution and not when made in addresses or speeches. The same applies to the officials whom the complainants seek to include in their arguments as all being authorities forming part of the Executive Power."182
6.78.
In the Panel's view, caution is warranted when assessing the probative value of any statement, including those made by public officials. Having said that, previous panels have considered that public statements of government officials, even when reported in the press, may serve as evidence to assess the facts in dispute.183
6.79.
Consistent public statements made on the record by a public official cannot be devoid of importance, especially when they relate to a topic in which that official has the authority to design or implement policies. That is the case for the Argentine officials that have been cited, such as the President, the Minister of Economy and Public Finance, the Minister of Industry, the Minister of Agriculture, the Secretary of Domestic Trade, and the President of the Central Bank of Argentina. It is appropriate for the Panel to assume that these officials have authority to make statements in the matters that relate to their respective competences. In many cases, the statements were prepared speeches delivered at formal events or were contained in notes issued by the press office of agencies of the Argentine Government; these cannot be dismissed as casual statements.184 While the Panel notes Argentina's assertion that statements made by public officials, and even by the President of Argentina, have limited legal value, "a panel must not lightly cast doubt on the good faith underlying governmental declarations and on the veracity of these declarations".185 Indeed, Argentina itself cited and relied upon statements made by its high-ranking officials, including some made by the Argentine President.186
6.80.
Moreover, as has been noted by the International Court of Justice, statements made by public officials, "are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them".187 Additionally, account must be taken as to the manner in which the statements are made, including the medium in which they are made public188, but also whether the statements are unambiguous and, in the case of plural statements, whether they are consistent and repeated over time.189
6.81.
Accordingly, the Panel will not disregard the evidence of public statements made by high-ranking officials.

6.1.3.2.3.4 Statements from company officials

6.82.
The complainants have submitted statements made by the officials of companies operating in Argentina, as evidence of the existence of trade-related requirements imposed by the Argentine Government, as well as of the operation of the Advance Sworn Import Declaration (DJAI). Some of these statements have been witnessed by notaries public190, while others are contained in transcripts of earnings conference calls organized by public companies (earnings conference calls).191
6.83.
One such exhibit is a certification by a notary public in the canton of Geneva (Switzerland) dated 13 June 2013. The notary attests to having been shown copies of eight documents from the years 2011 and 2012, which include four agreements signed between representatives of private companies established in Argentina and Argentine public officials (such as the Minister of Industry, the Minister of Economy and Public Finance, and the Secretary of Domestic Trade) and four documents signed by representatives of private companies established in Argentina and addressed to the Argentine Secretary of Domestic Trade. The notary describes the content of various trade-related commitments contained in these documents.192
6.84.
A second exhibit is a statement made by the Vice President of an unidentified private company, witnessed by a notary public in the State of Michigan (United States) dated 12 July 2012. The notary certifies that the declarant (a) has personally appeared before her; (b) is known to be the person identified in the statement; and, (c) has sworn that the facts described in the statement "are true to the best of his information, knowledge and belief". The statement describes the "operational difficulties" experienced by the declarant's company "as a result of informal restrictions on imports imposed by the Argentinean government".193
6.85.
The third exhibit is a statement made by "a duly authorized officer [the Chief Financial Officer] and member of the board of directors of a multinational consumer product company", witnessed by a notary public in the State of New Jersey (United States) dated 10 April 2013. The notary certifies that the declarant signed this statement before her and swore that the facts described therein were true. The statement describes difficulties faced by the company's affiliate in Argentina since 2012. The declarant ends his statement by noting that the Argentine affiliate company "has been advised by counsel that any direct challenge to the requirements imposed as a result of [Resolution 3252/2012 of January 2012] could result in retaliation by the [Argentine] government". The declarant adds that "[a]ccordingly, we are submitting this affidavit to USTR [the Office of the United States Trade Representative] with the express understanding that USTR will maintain the confidentiality of our company's identity as well as the identity of the affiant and any other details of our business activities that could identify our company or any individual."194
6.86.
With respect to these notarized statements, Argentina initially declared it would "not address the evidence produced by the complainants in alleged support of their assertions, because even if that evidence were accepted in its entirety, and notwithstanding its inadequacies, it would not be sufficient to establish [the essential elements of the complainants' case]".195
6.87.
More specifically, in the case of the notarial certification contained in one of the exhibits (exhibit EU‑14/JE-328), Argentina argued that "the Panel should exercise caution when evaluating whether, and to what extent, assertions made by public notaries should be given any evidentiary weight in the absence of any ability by the Panel to corroborate those assertions".196 Argentina added that (a) the notary was only able to examine copies and not originals of the relevant documents; (b) the identity of the declarant is unknown both to Argentina and to the notary; (c) the notary did not attest to the presence of anyone; (d) the date of the document registered by the notary is unclear; and, (e) the copies supplied to the notary had no legal effect in the country in which the notary registered them.197
6.88.
In the case of the notarized affidavits from officials of private companies contained in exhibits provided by the complainants (exhibits JE-306, JE-307, JE-751 and JE-752), Argentina argued that "the Panel should exercise caution when evaluating whether, and to what extent, assertions made by anonymous sources should be given any evidentiary weight in the absence of any ability by the Panel to corroborate the underlying assertions".198 Argentina added that the notaries have only attested to the fact that a person made a statement, and not to the accuracy of the statements themselves, including the purported representativeness of the declarants. Therefore, in Argentina's view, the evidence "is totally lacking in probative value".199
6.89.
The complainants also submitted 17 transcripts of earnings conference calls from companies that operate in Argentina, which took place in the months of June 2011, July 2011, February 2012, April 2012, May 2012, September 2012, November 2012, June 2013, July 2013, and August 2013.200 In these conference calls, public company officials discuss the company's financial performance and provide future performance estimates. The officials also take questions from participants.201 In the conference calls, company officials describe the impact of policies and measures instituted by the Argentine Government on the operation of their companies.202
6.90.
With respect to the earnings conference calls, Argentina has not disputed the veracity of the facts described in the statements. Argentina has, however, argued that these transcripts do not assist the complainants in demonstrating that the alleged trade-restrictive measure exists, the precise content of this measure, as well as its general and prospective application.203
6.91.
The Panel will exercise caution in considering the probative value of all of these documents with respect to the facts described therein.204 At the same time, the Panel finds no reason to completely disregard the notarized statements or the transcripts of earnings conference calls as evidence. Indeed, Argentina has not specifically challenged the veracity of the facts described in these documents, nor offered valid reasons for the Panel to disregard the statements. The Panel notes that previous panels have considered evidence submitted in the form of statements and affidavits.205

6.1.3.2.3.5 Industry surveys

6.92.
The complainants produced data from surveys to serve as evidence of the situation faced by private companies in Argentina with respect to the alleged trade-related requirements and the requirement for the DJAI.206
6.93.
First, they produced results from a survey on the DJAI, dated March 2012, commissioned by the American Chamber of Commerce in Argentina (AmCham), of "more than 100 companies members of AmCham Argentina", "most of which correspond to different manufacturing sectors".207 Second, they produced results from a survey on the Advance Sworn Import Declaration, dated April 2012, commissioned by AmCham of "32 member companies of different sectors and sizes, all active in importing both inputs as well as finished products for final consumers".208 Third, the complainants produced results from a survey of companies "of different sectors and sizes, all active in importing both inputs as well as finished products for final consumers", dated August 2012, also commissioned by AmCham.209 Fourth, they produced results from a survey, dated 24 December 2012, commissioned by the Government of Japan, of 10 Japanese companies (mostly manufacturing companies) operating in Argentina.210 Fifth, they produced a report on a survey of more than 45 companies operating in Argentina in "a wide range of industry sectors" dated 4 March 2013, commissioned by the U.S. Chamber of Commerce (USCC).211
6.94.
In its first written submission, the European Union asserted that the August 2012 AmCham survey "indicated that in order to convince the Secretariat for Domestic Trade to remove its objection ('Observation') from the DJAI system, 44% of importing companies had presented to the government of Argentina commitments of 'compensation' (compensaciones)."212 In its responses to the Panel's questions after the first meeting, the European Union added that the surveys constituted "evidence that, until the month of August 2012, approximately 44% of the importing companies, whose imports had been blocked through the DJAI, had presented to the government of Argentina commitments on 'compensation'."213
6.95.
Japan initially stated that:

An industry survey conducted by the American Chamber of Commerce in Argentina ("AmCham") also confirms that DJAIs are regularly not approved. … The survey responses indicated that only 42.8 percent of DJAIs transitioned to "exit" or "cancelled" status. Among the remainder were DJAIs that were observada ("observed", 27 percent), anulada ("annulled", i.e., withdrawn, 1.5 percent), or in "another state" (22 percent). The survey makes clear that delays in the approval of DJAIs have affected the productivity levels of more than 20 percent of companies surveyed, and forced more than 10 percent to partially or completely shut down a production line.214

6.96.
In its statements at the second meeting of the Panel, Japan also asserted that the Japanese Government's survey "shows that the RTRR is actually imposed on nine out of ten companies".215
6.97.
In other sections of its first written submission, Japan referred, not to proportions of total DJAI applications, but only to proportions of survey respondents:

A survey of American companies conducted in March 2012 found that out of over 100 companies surveyed, roughly 40% of import licensing requests that they had submitted were not approved or were in "diverse pending states"; and a later survey found that for 30% of survey respondents, more than 75% of their import license applications were left pending for more than 60 days. A Japanese Government survey performed in September 2012, moreover, finds that in numerous instances, no explanation for such delays was provided at all, while in two instances where an explanation was provided, the explanation was that DJAIs would not be approved unless the importer agreed to increase exports out of Argentina at the same time.216

6.98.
In response to questions posed by the Panel after the first substantive meeting, the United States and Japan provided information regarding the methodology used for the surveys provided with the complainants' first written submissions.217 According to the responses provided, the March 2013 USCC survey was sent to more than 3 million companies that are USCC members worldwide; some of these companies export to Argentina. Forty-five of those companies completed the survey. The proportion of Argentine imports that these companies represent is unknown, and so is the proportion that these companies represent of filed Advance Sworn Import Declarations.218 The 24 December 2012 survey commissioned by the Government of Japan is based on the responses voluntarily provided by ten Japanese companies that manufacture automobiles, auto parts, electronic products, appliances, and chemicals. Those companies represent approximately 22% of total imports by Japanese companies into Argentina in the period covered by the survey, and account for 356 applications for Import Certificates (Certificados de Importación, CIs, between February 2011 and July 2012) and 762 DJAI applications (between February and July 2012). The proportion of filed DJAI and CI applications that these companies represent, however, is unknown.219
6.99.
In contrast, in its first written submission, the United States referred only to the proportions of the respondents to the surveys, and not to a proportion of all importing companies. In the United States' words:

In March 2013, the U.S. Chamber of Commerce conducted a survey on the experience of U.S. companies in using the DJAI system. Nearly one in three respondents reported that it took over 60 days to receive a denial or approval of 75 percent or more of their DJAI applications. Another 20 percent of respondents waited 60 days or more for action on between 50-75 percent of their DJAI applications. One participating company states "[o]f all the countries we ship to, Argentina is the most complicated and time consuming[;] [i]t takes the longest to get the import license (sometimes 3 to 4 weeks" and another stated "[i]t seems the Government simply wants to wait us out, hoping that we will stop trying to import product until we increase exports."220

6.100.
After the first substantive meeting, the Panel asked Argentina to comment on these surveys. In response, Argentina said it would provide its comments once the complainants had responded to the questions posed by the Panel.221 In its second written submission, Argentina argued that the surveys provided by the complainants are "not genuine studies and, consequently, are fatally flawed as evidence".222 Argentina added that, given the shortcomings in the surveys, "it is impossible to determine whether they are representative and statistically significant as far as the firms' experience with the DJAI procedure is concerned".223 In Argentina's view, the surveys neither purport to show, nor provide any evidentiary support for the claim that the DJAI procedure has imposed a quantitative restriction on imports.224
6.101.
In response to Argentina's comments, the complainants stated that the surveys "are not, and do not purport to be, scientific. Nor do they set out to demonstrate that all applications made through the DJAI system are delayed or denied, or that a certain percentage is delayed or denied."225 The United States describes the USCC survey as "an informal voluntary survey circulated by the U.S. Chamber to its members". The United States considers, nevertheless, that the information contained in the surveys "is probative of the general experience of U.S. companies exporting to Argentina and [of] Argentina's restrictive application of the DJAI Requirement and imposition of RTRRs."226 In the United States' view, the surveys "demonstrate that Argentine officials do in fact withhold permission to import through the DJAI system either to extract RTRR commitments from importers or for other reasons."227
6.102.
Likewise, Japan states that the Japanese Government survey illustrates the situation of "10 specific Japanese companies' ability to import (as well as their experience of being subject to RTRR-related demands)". In Japan's view, "Argentina's criticism of the sample of companies covered by the survey does not contradict the fact that the DJAI Requirement actually restricts certain importations".228
6.103.
In certain instances, industry surveys can be a useful source of information for a panel's analysis. In the present case, the Panel notes that the data from surveys submitted by the complainants "are not, and do not purport to be, scientific" and that they are not used to try to demonstrate that a certain percentage of firms in Argentina are affected by trade-related requirements or by delays or rejections of their Advance Sworn Import Declarations.229 Accordingly, they are not to be taken as proving that any particular percentage of companies in Argentina is affected by the DJAI requirement and the alleged RTRRs. The Panel considers that the data from surveys provided by the complainants have limited value in allowing it to reach general conclusions regarding the operation of the measures at issue. They may, however, serve as background information illustrating the impact of the DJAI requirement and the alleged RTRRs on specific companies.

6.1.3.2.3.6 Documents prepared by market intelligence entities

6.104.
Amongst the information submitted by the complainants are documents prepared by market intelligence entities or by an export promotion office informing clients or affiliated members of the information and requirements imposed by the Secretariat of Domestic Trade (SCI) whenever this agency enters observations on DJAIs. The authors of these documents include five chambers of commerce230, six consulting firms specialized in international trade231, three specialized magazines232, one regional industrial union233 and one export promotion office.234
6.105.
Argentina requested the Panel not to accord any probative value to these documents since they concern "communications from business chambers and their opinions on and/or interpretation of trade policy".235
6.106.
As with the Panel's conclusion with respect to articles published in newspapers or magazines, the Panel sees no reason to reject a priori documents prepared by market intelligence entities or export promotion offices for their clients or affiliated members, as devoid of any evidentiary value. We agree with Argentina that caution must be exercised in seeking to rely without more on these documents to prove the existence of the unwritten measure. Nevertheless, the documents can be an important source of information, especially with respect to unwritten aspects of a measure.236 Moreover, in the circumstances of this case, the documents submitted by the complainants may have more relevance and weight than an article published in a newspaper or in a magazine, because they have been prepared by professional entities on a narrow subject of trade policy for a specialized audience (normally, subscribers of a service). In any event, if any of these documents submitted as evidence is believed to contain incorrect information, nothing would have prevented any of the parties from submitting evidence presenting a contrasting view. None did so.

6.1.3.2.3.7 Trade statistics and other economic data

6.107.
Finally, Argentina submitted uncontested trade statistics, as well as information regarding the economic performance of the country in recent years.
6.108.
According to the information provided by Argentina, between 2004 and 2008 foreign direct investment (FDI) in Argentina increased at an average annual rate of around 24%, while domestic investment grew by 21%. In 2008, FDI inflows in Argentina amounted to USD 9.7 billion. FDI inflows into Argentina fell in 2009 by around 59%, recovering in 2010 and 2011, at an average annual rate of 66%. In 2011, FDI capital inflows totalled USD 10.7 billion (equivalent to around 2.4% of Argentina's gross domestic product).237
6.109.
The stock of FDI in Argentina has increased since 2004 by some USD 39.14 billion, an average annual growth rate of 9%. Over the period 2004‑2011, the stock of FDI in Argentina increased by 126.8%, as compared with the period 1992‑1999. By 31 December 2011, the stock of FDI in Argentina reached a record high of USD 96.09 billion.238
6.110.
Between 2009 and 2012 Argentina's imports grew 77% in value (from USD 38.7 billion in 2009 to USD 68.5 billion in 2012), while its exports grew 45% (from USD 55.6 billion in 2009 to USD 80.9 billion in 2012). This led to a 395% overall growth in the value of Argentina's imports between 2003 and 2012 and a 170% growth in the value of its exports.239
6.111.
Between 2001 and 2011, Argentina maintained an uninterrupted trade surplus with the European Union. The record annual trade surplus in the period was USD 4.13 billion in the year 2008. In 2012, however, Argentina's balance of trade with the European Union showed a deficit of USD 0.39 billion. The trend continued into the first half of 2013, when Argentine exports to the European Union fell by 20% in value and its imports grew by 8%. While European Union exports to the world grew 94% in value between 2003 and 2012, and 26% between 2009 and 2012, its exports to Argentina grew by 218.5% between 2003 and 2012, and 92% between 2009 and 2012.240
6.112.
In 2012 Argentina had a record trade deficit with the United States of USD 4.3 billion.241 Energy comprises a significant share of Argentine imports from the United States; energy products were between 5% to 45% of the total monthly value of United States exports to Argentina in 2012.242 While United States' exports to the world grew by 113.7% in value between 2003 and 2012, and 46.5% between 2009 and 2012, its exports to Argentina grew by 324.4% between 2003 and 2012, and 85.9% between 2009 and 2012.243
6.113.
In 2012 Argentina had an annual deficit of USD 285 million in its trade with Japan. While Japanese exports to the world grew by 17% in value between 2003 and 2012, and 18% between 2009 and 2012, its exports to Argentina grew by 195% between 2003 and 2012, and 60% between 2009 and 2012.244
6.114.
The Panel will consider this uncontested information on Argentina's trade and economic performance, where relevant and together with other evidence, in its findings.245

6.1.3.2.3.8 Conclusion with respect to the treatment of evidence

6.115.
As indicated above246, to determine whether the complainants have successfully established a prima facie case and, if so, whether Argentina has successfully rebutted such a case, the Panel has examined all the sources of evidence provided by the parties on their own specific merits. In examining the evidence, the Panel has considered its appropriate relevance, credibility, weight and probative value. The Panel has exercised caution in its assessment of the facts of the case, especially because of the unwritten nature of the alleged RTRRs.
6.116.
The Panel has also taken into account that Argentina has not disputed the basic facts concerning the existence and operation of the alleged RTRRs. With respect to the RTRRs, Argentina has only stated in generic terms that the complainants have presented a false description of Argentina's trade policy and business environment247 and made three assertions. First, that the complainants have not produced evidence of the existence of a single "overarching" measure that has general and prospective application.248 Second, that the complainants have at most proven the existence of a series of individual one-off and isolated actions that concern a limited number of individual economic operators in a limited number of sectors, whose content varies considerably and lacks anything resembling general and specific application.249 Third, that the description of the facts made by the complainants is unsupported by Argentina's trade data and by the experience of companies in Argentina.250 Argentina has failed to produce evidence to dispute the facts asserted by the complainants; it has only submitted economic data in support of its statement that its economy is highly dependent on imports and that in past years there has been a direct correlation between economic growth in Argentina and an increase in imports.251
6.117.
In the course of the proceedings, the Panel asked the parties for copies of specific agreements between the Argentine Government and importers or economic operators, which allegedly described trade-related commitments imposed by the government. The Panel also asked the complainants to produce copies of letters addressed by the importers or economic operators to the Argentine Government, which allegedly describe those commitments. Despite repeated requests from the Panel, the parties failed to provide the requested information. The Panel also proposed the adoption of special procedures to address the concerns expressed by the complainants and to facilitate the submission of the information. None of the parties supported the adoption of these special procedures, and three of them (the United States, Japan, and Argentina) objected to the procedures.252 The Panel notes that Argentina is the only party that is a signatory to the agreements requested by the Panel and can be therefore presumed to have direct access to these documents. Argentina did not deny the existence of the agreements and it did not provide a valid reason for its failure to submit the documents.
6.118.
Despite the failure to provide the requested copies of agreements and letters, the complainants submitted a large number of exhibits with the objective of proving the existence and precise content of the alleged RTRRs. This evidence includes, inter alia, copies of domestic laws, regulations and policy documents; communications addressed to Argentine officials by private companies; statements by Argentine officials and notes posted on websites of the Argentine Government; articles in newspapers and magazines; statements by company officials; data from industry surveys; and reports prepared by market intelligence entities.
6.119.
The Panel has examined the information available and has assessed all the evidence in a holistic manner in order to reach its conclusions. As a result, the Panel is persuaded on the basis of the totality of the evidence of the following general facts, as well as of the specific facts that are discussed in sections 6.2 and 6.3 below. First, high-ranking Argentine Government officials have announced in public statements and speeches a policy of so-called "managed trade" (comercio administrado), with the objectives of substituting imports for domestically-produced goods and reducing or eliminating trade deficits. Second, since at least 2009 the Argentine Government has imposed a combination of TRRs253 on prospective importers as a condition to import or to receive certain benefits. Third, these TRRs have been imposed on importers covering a broad range of sectors such as foodstuffs, automobiles, motorcycles, mining equipment, electronic and office products, agricultural machinery, medicines, publications, and clothing. Fourth, the TRRs are in some cases reflected in agreements signed between specific economic operators and the Argentine Government and in other cases contained in letters addressed by economic operators to the Argentine Government. Fifth, the Argentine Government has on occasion required compliance with TRRs as a condition for lifting observations entered into DJAI applications. Sixth, statements made by high-ranking Argentine Government officials, including the President, the Minister of Industry and the Secretary of Trade, suggest that the TRRs seek to implement the policy of so-called "managed trade" explained above.
6.120.
Each of these conclusions will be described and developed in the following section, with reference in each case to the supporting evidence considered by the Panel.

6.2 THE TRADE-RELATED REQUIREMENTS (TRRS)

6.2.1 Preliminary considerations

6.2.1.1 Parties' description of the measure at issue

6.121.
In their panel requests, the complainants identify a number of actions that they refer to as the "Restrictive Trade-Related Requirements" (RTRRs). According to the complainants, Argentina requires economic operators to undertake certain specific actions as part of a policy seeking to eliminate trade balance deficits and substitute imports for domestically-produced goods.254 The actions identified by the complainants are255:

a. to export a certain value of goods from Argentina related to the value of imports;

b. to limit the volume of imports and/or reduce their price;

c. to refrain from repatriating funds from Argentina to another country;

d. to make or increase investments in Argentina (including in production facilities); and/or,

e. to incorporate local content into domestically produced goods.

6.122.
In their first written submissions, the European Union and Japan indicated that the list of requirements that are part of the single measure is not exhaustive.256
6.123.
The complainants allege that these requirements are enforced by "withholding permission to import, inter alia, by withholding the issuance of DJAI or CI approvals".257
6.124.
The European Union adds in its panel request that the specific requirements may be viewed as an "overarching measure" aiming at eliminating trade balance deficits and/or substituting imports by domestic products.258
6.125.
The three complainants affirm that the measure at issue: (a) consists of a combination of one or more of the five identified trade-related requirements259; (b) is an unwritten measure "not stipulated in any published law or regulation"260; (c) is imposed on economic operators in Argentina as a condition to import or to obtain certain benefits261; (d) is enforced, inter alia, through the DJAI requirement262; and, (e) is imposed by the Argentine Government with the objective of eliminating trade deficits and increasing import substitution.263 The complainants also assert that, to meet these trade-related requirements, "economic operators normally either submit a statement or conclude an agreement with Argentina setting out the actions they will take."264
6.126.
The European Union has emphasized that the content of the "overarching measure" at issue is different from that of the five individual trade-related requirements. In the European Union's view:

[T]he overarching measure implies the existence of a single unwritten measure whereby Argentina seeks to impose certain trade-restrictive actions on economic operators with a view to achieving two specific objectives, i.e., eliminating trade balance deficits and achieving the substitution of imported products by domestic products.265

6.127.
The United States refers to a measure that consists of:

[T]he decision by high-level Argentine officials to require commitments of importers to export a certain dollar value of goods; reduce the volume or value of imports; incorporate local content into products; make or increase investments in Argentina; and/or refrain from repatriating profits, as a prior condition for permission to import goods.266

6.128.
In turn, Japan considers that:

[T]he RTRR is not merely five independent requirements. The RTRR is a comprehensive and general measure and consistent practice that restricts imports by imposing a practical threshold on importers and limits competitive opportunities of imports vis-à-vis the situation in the absence of the RTRR."267

6.129.
In its first written submision, Argentina requested a preliminary ruling as it considered that, by including in their panel requests claims against the so-called trade-related requirements, the complainants had expanded the scope of the dispute because in its view this measure was not identified in their requests for consultations. Consequently, Argentina contended that this measure did not fall within the Panel's terms of reference.268 In its first preliminary ruling, the Panel concluded that the "so-called 'Restrictive Trade Related Requirements' (RTRRs) were identified by the complainants as a measure at issue in their requests for consultations" and, therefore, these requirements are within the Panel's terms of reference.269 The Panel also noted in that preliminary ruling that the characterization of the RTRRs as a single global measure (which the European Union has referred to as an "overarching measure") in the complainants' panel requests did not expand the scope or change the essence of the dispute as it was originally described in the requests for consultations.270
6.130.
Following the Panel's first preliminary ruling, in its second written submission, Argentina argues that the complainants have failed to make a prima facie case of the existence of a single global measure. In Argentina's view, the complainants' characterization of the measure is "broad, amorphous and ill-defined".271 Argentina contends that there is a high threshold to be met by the complainants in order to prove the existence of an unwritten measure such as the alleged RTRRs measure alleged by the complainants. More particularly, Argentina alleges that the complainants have failed to establish the precise content and the general and prospective application of the TRRs measure.272 According to Argentina, the evidence provided by the complainants at most demonstrates "a series of unrelated 'one-off' actions whose content varies so widely that it is insufficient even to demonstrate the content of a series of distinct requirements, let alone a single 'overarching' RTRR measure".273
6.131.
For the purpose of these Reports, the Panel will refer to the five actions identified by the complainants described above as the Trade-Related Requirements (TRRs). The single measure that the complainants are asserting will be referred to as the Trade-Related Requirements measure (the TRRs measure). References to the alleged "Restrictive Trade-Related Requirements" (RTRRs) have been kept in direct quotations from the parties' submissions.

6.2.1.2 Description of the claims

6.136.
In addition, Japan requests separate findings concerning Articles XI:1, III:4 and X:1 of the GATT 1994 in respect of the TRRs measure "as such" and "as applied".275 Japan has clarified it seeks that the Panel issue three sets of findings: "(i) findings against the RTRR as an unwritten rule or norm as such; (ii) findings against the RTRR as an unwritten practice or policy, as confirmed by the systematic application of the measure (i.e., the RTRR's application as a whole – i.e., the systematic application of the RTRR); and (iii) findings against individual applications of the RTRR (i.e., the RTRR's application in each and every individual instance)".276
6.137.
For its part, Argentina argues that the complainants have failed to prove the existence of an unwritten "overarching" measure, with precise content and general and prospective application, that would support the complainants' claims against the TRRs measure.

6.2.1.3 Order of analysis

6.2.1.3.1 The existence of a single measure

6.138.
The Panel will first assess whether there is evidence of the existence of the TRRs. Since it is uncontested by the parties that the TRRs measure is unwritten277, the threshold issue of ascertaining the existence of the TRRs and the purported single measure is especially important. As noted by the Appellate Body in EC and certain member States – Large Civil Aircraft, "when a challenge is brought against an unwritten measure, the very existence and the precise contours of the alleged measure may be uncertain."278
6.139.
As noted, the complainants are challenging the existence of a single measure consisting of a combination of one or more of the five TRRs. Previous panels have been confronted with the need to determine the existence of a single broad measure constituted by a number of individual requirements that work in combination. In these cases, panels have considered whether a measure consisting of various elements should be examined as a single measure or as separate measures.
6.140.
In US – Export Restraints, the complainant argued that certain "elements" that had been identified separately in its panel request constituted a measure at issue both individually and collectively. In the complainant's view, those elements operated both individually and taken together. In that case, the panel considered that a measure could be considered separately in order to assess whether it individually gives rise to a violation of WTO obligations if "[it] operates in some concrete way in its own right [meaning] that each measure would have to constitute an instrument with a functional life of its own, i.e., that it would have to do something concrete, independently of any other instruments."279 Accordingly, the panel in US – Export Restraints started by considering each measure on its own to assess whether it was operational and subsequently examining how, if at all, the measures operated "taken together".280
6.141.
Other panels have also treated a number of individual requirements or legal provisions as a single measure. As noted by the panel in Japan – Apples:

[P]anels and the Appellate Body have in the past considered as one single "measure" legal requirements comprised of several obligations, some simply prohibiting importation, some allowing importation under certain conditions.281

6.142.
In Japan – Apples the complainant had identified nine requirements in its panel request, which in its view restricted the importation of United States' apples into Japan. The panel in that case found that there was "no legal, logical or factual obstacle" to treating those requirements as one single phytosanitary measure. In the panel's view, the requirements cumulatively constituted the measures actually applied by Japan to the importation of US apple fruit, to protect itself against certain phytosanitary risks. The panel also noted in this regard the fact that both parties had presented the requirements as a single measure.282
6.143.
In US – Tuna II (Mexico), the panel considered whether it was appropriate to assess certain measures jointly in the analysis of the complainant's claims, and make findings based on the combined operation of the measures, rather than on the basis of each individual measure separately. Based on its analysis of how the various instruments cited by the complainant functioned and related to each other, the panel found it was not clear that some of the separate measures could be operational or totally independent on their own. Accordingly, the panel saw merit "in considering these closely related instruments together as a single measure for the purposes of [the] dispute".283 Citing the earlier panel decisions in Japan – Apples and Australia – Apples, the panel in US – Tuna II (Mexico) saw "no 'legal, factual or logical obstacle' to treating the various interrelated legal instruments identified by Mexico as the basis for its claims … as a single measure for the purposes of [its] findings."284
6.144.
In assessing whether to examine certain instruments as one single measure or individual separate measures, the panel in US – COOL summarized the main factors considered by previous panels and the Appellate Body in relation to this question as follows:

(i) the manner in which the complainant presented its claim(s) in respect of the concerned instruments285; (ii) the respondent's position; and (iii) the legal statusof the requirements or instrument(s), including the operation of, and the relationship between, the requirements or instruments, namely whether a certain requirement or instrument has autonomous status.286,287

6.145.
In the current dispute, in order to facilitate its analysis, the Panel will start by determining whether the evidence available demonstrates the existence of each of the five TRRs identified by the complainants. Were the Panel to conclude that one or more of the five TRRs exist, and given that the complainants have not requested separate findings as to the inconsistency of each of the TRRs with provisions in the covered agreements, the Panel shall proceed to assess whether, as argued by the complainants, the TRRs operate as a single measure.288 The Panel will examine the precise content and operation of that alleged single TRRs measure and whether it can be attributed to Argentina.

6.2.1.3.2 Order of analysis between the claims

6.146.
If the single TRRs measure described by the complainants were found to exist, the Panel would examine its consistency with the WTO provisions raised by the complainants, namely, Articles XI:1, X:1 and III:4 of the GATT 1994.
6.147.
As regards the order of analysis between the three provisions referred to by the complainants, it is worth recalling that the Appellate Body in Canada – Wheat Exportsand Grain Imports noted that:

As a general principle, panels are free to structure the order of their analysis as they see fit. In so doing, panels may find it useful to take account of the manner in which a claim is presented to them by a complaining Member … At the same time, panels must ensure that they proceed on the basis of a properly structured analysis to interpret the substantive provisions at issue. As the Appellate Body found in US – Shrimp and Canada – Autos, panels that ignore or jump over a prior logical step of the analysis run the risk of compromising or invalidating later findings. This risk is compounded in the case of two legally interrelated provisions, where one of those provisions must, as a matter of logic and analytical coherence, be analyzed before the other …289

6.148.
In the same case, the Appellate Body indicated that thenature of the relationship between two provisions "will determine whether there exists a mandatory sequence of analysis which, if not followed, would amount to an error of law".290
6.149.
Considering first the claims raised under the substantive provisions of Articles XI:1 and III:4 of the GATT 1994, the Panel does not consider that the relationship between these provisions imposes any specific order of analysis. Indeed, previous panels in which claims under Articles XI:1 and III:4 of the GATT 1994 were raised in respect of the same measure have approached the order of analysis differently depending on the specific circumstances. In some disputes, the order of analysis was determined by the fact that the complainants brought a claim in the alternative.291 In those cases, the panels started with the analysis of the main claim. In other cases, the complainants raised cumulative claims under both Articles XI:1 and III:4 of the GATT 1994.292 For example, in India – Autos, the panel started its analysis with Article XI "because both the European Communities' and the United States' claims seek to bring the entire measure within Article XI and because the European Communities addresses a wider range of effects under that Article than under Article III".293
6.150.
The Panel will start its analysis with Article XI:1 of the GATT 1994, which is the provision invoked by all three complainants. It will continue by examining the claim under Article III:4, which was only raised by the European Union and Japan and affects a limited aspect of the TRRs measure (the local content requirement).
6.151.
All three complainants have also raised claims under Article X:1 of the GATT 1994. As noted by the Appellate Body:

Article X relates to the publication and administration of "laws, regulations, judicial decisions and administrative rulings of general application", rather than to the substantive content of such measures…294 (emphasis original)

6.152.
If the Panel finds that the purported single TRRs measure is in breach of substantive obligations under either Article XI:1 or Article III:4 of the GATT 1994, it will consider whether findings under Article X:1 concerning the publication of the measure are necessary or useful for the resolution of the matter between the parties. The Panel notes that, pursuant to the principle of judicial economy, panels are allowed to address only those claims that are necessary to resolve the dispute.295 However, there is no obligation for a panel to exercise judicial economy. It is within a panel's discretion to decide which claims it is going to rule upon296, as long as it addresses "those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance by a Member with those recommendations and rulings 'in order to ensure effective resolution of disputes to the benefit of all Members'".297
6.153.
Finally, the Panel shall decide whether it considers it necessary or useful to make the additional findings about the purported single TRRs measure "as such" requested by Japan.298 There are two reasons why the Panel will deal with Japan's claims against the TRRs measure "as such" at a later stage. First, because the TRRs measure is unwritten, the evidence used for considering all claims concerning this measure will necessarily relate to its application. Second, if a finding of inconsistency is made with regard to the initial claims raised by all complainants, the Panel would only need to move a step further to complete the examination of Japan's claims against the TRRs measure "as such" by determining, mainly, whether the measure has general and prospective application.299
6.154.
Finally, it should be noted that the complainants have indicated that, although in some cases the DJAI procedure may serve to implement certain TRRs, they are challenging the DJAI procedure and the TRRs measure as separate measures.300 Therefore, the Panel will address both measures separately in these Reports.

6.2.2 Existence and operation of the trade-related requirements

6.2.2.1 The individual trade-related requirements

6.156.
These TRRs are in some cases reflected in agreements signed between specific economic operators and the Argentine Government and in other cases contained in letters addressed by economic operators to the Argentine Government.301 There is evidence on record of the existence of at least the following 29 agreements302 signed between the Argentine Government and: (i) the Asociación de Fábricas Argentinas Terminales de Electrónica (Afarte) and the Cámara Argentina de Industrias Electrónicas, Electromecánicas y Luminotécnicas (Cadieel)303; (ii) General Motors304; (iii) AGCO305; (iv) Renault Trucks Argentina306; (v) Claas307; (vi) Mercedes Benz308; (vii) Volkswagen309; (viii) Alfa Romeo310; (ix) Porsche311; (x) Peugeot Citroën312; (xi) Fiat313; (xii) Hyundai314; (xiii) Ford315; (xiv) KIA316; (xv) Nissan317; (xvi) Renault318; (xvii) Chery319; (xviii) Alfacar (Mitsubishi)320; (xix) Ditecar (Volvo, Jaguar and Land Rover)321; (xx) Volvo Trucks322; (xxi) Tatsa323; (xxii) Indumotora Argentina (Subaru)324; (xxiii) BMW325; (xxiv) Pirelli326; (xxv) Thermodyne Vial327; (xxvi) supermarkets328; (xxvii) the Cámara Argentina de Publicaciones329; (xxviii) the Cámara Argentina del Libro330; and, (xxix) representatives of the automobile and autoparts industry331.
6.157.
Neither the requirement on economic operators to undertake these commitments, nor the details of the specific trade-related commitments, are explicitly stipulated in any Argentine law, regulation or administrative act. According to the evidence on record, the Argentine Government informs economic operators individually of the specific commitment or commitments it should undertake, depending on the particular circumstances of the respective operator.332
6.158.
The TRRs cover a broad range of economic sectors and economic operators. The evidence shows that such commitments have been required from producers and/or importers of, inter alia, foodstuffs, automobiles, motorcycles, mining equipment, electronic and office products, agricultural machinery, medicines, publications, and clothing. These sectors correspond to at least six out of the 11 industrial sectors (value chains) individually addressed in Argentina's Industrial Strategic Plan 2020 (Plan Estratégico Industrial 2020, PEI 2020), published in 2011.333
6.159.
As will be discussed below, evidence also shows that, irrespective of size and domicile, a variety of economic operators have been affected by these requirements, and that the requirements are not equally imposed on all economic operators or importers.
6.160.
The Argentine Government has stated that it monitors the implementation of the commitments undertaken by economic operators.334
6.161.
The TRRs imposed by the Argentine Government seem in line with three of the five economic objectives or "macroeconomic guidelines" set out in PEI 2020: (a) protection of the domestic market and import substitution; (b) increase of exports; and, (c) promotion of productive investment.335
6.162.
Within the context of the objectives laid out in PEI 2020, the Argentine Government has proclaimed a policy of "managed trade" (comercio administrado).336 Elements of this policy seem to have been part of the productive model developed in Argentina since 2003.337 In late 2013, the Secretary of Domestic Trade indicated in an official press release that this policy of "managed trade" would continue to be applied as per instructions from the President of Argentina.338
6.163.
There is evidence on the record that the DJAI is another tool of Argentina's "managed trade" policy and one of the mechanisms used to enforce the TRRs measure. As explained below339, the SCI requires that economic operators submit the company's estimates of imports and exports as part of the conditions to lift observations on DJAIs with "observed" status. In some cases the SCI also requires prospective importers to commit to export340 or to comply with other TRRs.341
6.164.
Before addressing how the TRRs operate, it is worth recalling that, despite several requests from the Panel342, as explained above343, neither the complainants nor the respondent have provided copies of the agreements or the letters addressed by economic operators to the Argentine Government, which presumably reflect the trade-related commitments.344 Nevertheless, Argentina has indicated it "has not denied or called into question the existence" of the 30 agreements that were listed by the Panel in its written questions.345
6.165.
In any event, the Panel has received evidence of the existence, the nature and the characteristics of the TRRs imposed by the Argentine Government. As noted in a previous section346, this evidence includes, inter alia: copies of domestic laws, regulations and policy documents; communications addressed to Argentine officials by private companies; statements by Argentine officials and notes posted on government websites; articles in newspapers and magazines, mostly published in Argentina; statements by company officials; data from industry surveys; and reports prepared by market intelligence entities. As explained above, the Panel examined all of the evidence in a holistic manner and based on the totality of the facts has determined that Argentina imposes a combination of TRRs on importers as a condition to import or receive benefits.347 In particular, having examined the variety of, and extensive, evidence on record, and having drawn inferences from the refusal of Argentina to provide evidence in its possession which it has not denied, the Panel has concluded that, at least since 2009, the Argentine Government has required from certain importers and other economic operators that they undertake one or more of the five TRRs.348 Further, the following sections discuss evidence of specific instances of application of each of the individual TRRs.

6.2.2.1.1 The one-to-one requirement

6.166.
Economic operators have been required to compensate imports annually with exports of at least the same value, thereby achieving a trade balance, as a condition to import.349 In some cases, economic operators committed to achieving an export surplus.350 The details about the one-to-one requirements applicable to specific economic operators are usually contained in agreements, and/or letters that individual economic operators subscribe or submit to the Argentine Government.351
6.167.
The evidence on record shows that there are three main ways for economic operators to increase exports so as to comply with the one-to-one requirement.352 First, an economic operator may use an exporter as an intermediary to sell products to a buyer in a third country (exportation "por cuenta y orden"). Second, an economic operator may directly export Argentine products that the economic operator (or any other company) produces. And third, the economic operator may conclude an agreement with an exporter so that the exporter's transactions may be considered as the economic operator's own transactions.353
6.168.
Any of these three options may result in additional costs for economic operators because: (a) the requirement may force economic operators to undertake activities outside of their normal business; and (b) exporters willing to provide these services charge fees to the economic operators in need of achieving a trade balance. Evidence shows that these fees range between 5% and 15% of the total value of the export operation.354
6.169.
Examples on the record of companies operating in sectors outside their normal business activities as a result of the imposition of a one-to-one requirement are automobile manufacturers, such as Nissan, exporting soy flour, soy oil and biodiesel from Argentina355; Alfacar (importer of Mitsubishi automobiles), exporting animal feed, peanuts and premium mineral water from Argentina356; Hyundai, exporting peanuts, wine, biodiesel and soy flour from Argentina357; and Indumotora (importer of Subaru), exporting poultry feed from Argentina.358 Evidence with respect to other companies similarly operating in sectors outside their normal business activities, as a result of the imposition of a one-to-one requirement, include sporting equipment producer Nike, exporting furniture from Argentina for its stores in Latin America359; Juki (importer of Kawasaki and Mondial motorcycles), exporting concentrated white grape juice from Argentina360; and tyre producer Pirelli, exporting honey from Argentina.361
6.170.
Evidence available shows that the Argentine Government has imposed a one-to-one requirement on the following sectors: automobiles, trucks, motorcycles, cultural products, tyres, agricultural machinery, clothing, toys, pork meat products, pharmaceutical products and electronic products. The following paragraphs provide more information on the operation of the one-to-one requirement as it affects the automotive, truck and motorcycles, and cultural products sectors.
6.171.
Automotive sector. The automotive sector is the economic sector for which there is the earliest evidence showing the imposition of a one-to-one requirement. Since March 2010, the Argentine Government has signed agreements with car manufacturers and importers whereby they commit to achieve trade balance.362 In March 2011, the Argentine Government announced to companies in the sector that their imports would be limited to the volume of their exports.363 Between March 2011 and October 2011, 17 car importers and/or manufacturers concluded agreements with the Argentine Government in which they committed to even out their trade deficits.364 At least 11 of these 17 importers and manufacturers also committed to achieve an export surplus: Volkswagen365, Mercedes Benz366, Peugeot-Citroen367, Casa Milano-Alfa Romeo368, General Motors369, Fiat370, Chery371, Ford372, Hyundai373, Kia374, and Renault.375 In order to achieve these objectives, importers and manufacturers committed to increase exports, including exports not related to the automotive sector.376 Some importers and manufacturers also committed to make or increase investments in production facilities377, increase the level of local content of their products378 or make irrevocable capital contributions to the industry.379
6.172.
The Argentine Government gives economic operators a specified period, such as one year, to achieve a trade balance.380 If the level of exports committed to by the economic operator is not ultimately achieved, the economic operator can either limit its imports or, alternatively, make an irrevocable investment in the local operations of the firm, in the form of a contribution to its capital, to compensate for the value of the imports381 (this has been described by the complainants as the investment requirement and will be discussed below).382
6.173.
Truck and motorcycle sectors. In the truck sector, Scania383, Thermodyne Vial (importer of Mack trucks)384, and Renault Trucks385 also undertook commitments with the Argentine Government to achieving a trade balance or an export surplus. In the motorcycle sector, Harley Davidson386, Juki (which represents Kawasaki and Mondial)387, Suzuki388, Motomel389, and Zanella390 all committed to even out their trade balance as well. Similar to what happened in the automotive sector, export commitments were often made in sectors unrelated to the core business activities of these companies.391
6.174.
Cultural products sector. Producers and importers of publications392, books393, and audiovisual products394 also committed to achieving a trade balance. In the case of books and publications, the Argentine Chamber of Books (Cámara Argentina del Libro) and the Argentine Chamber of Publications (Cámara Argentina de Publicaciones) signed agreements with the Argentine Government in the last quarter of 2011 whereby they committed to even out their trade balance by the end of 2012.395 In order to do so, members of these two Chambers committed to increase domestic printing and exports of books and publications from Argentina.396
6.175.
In mid-September 2011 (some weeks before the agreements between the Argentine Government and the Argentine Chamber of Books and the Argentine Chamber of Publications were signed), local newspapers reported that over a million imported books were detained at Argentine customs.397 According to articles published in the Argentine press, the commitment to achieve a trade balance, contained in the agreements with the Argentine Government signed by the book and publication chambers, was a condition for releasing these books detained at customs.398