X. INTERIM REVIEW ³⁰²,³⁰³
 
A. BACKGROUND

10.1 In letters dated 25 October 2000, the European Communities and Argentina requested an interim review by the Panel of certain aspects of the interim report issued to the parties on 13 October 2000. Neither party requested an interim review meeting. As agreed by the Panel, both parties were permitted to submit further comments on the other party's interim review requests. The parties submitted such further comments on 2 November 2000.

10.2 Neither party requested that the Panel further review its findings with respect to the European Communities' claims under Article XI:1 of the GATT 1994. Accordingly, the interim report findings of the Panel with respect to that issue shall become the final findings of the Panel. The requests and comments regarding Articles X:3(a), III:2, first sentence, and XX(d) of the GATT 1994 are addressed in that order below.

B. CLAIM UNDER ARTICLE X:3(A) OF THE GATT 1994

10.3 Argentina raises questions concerning our conclusion that Resolution (ANA) No. 2235/96 (hereafter "Resolution 2235") is a rule of general application. According to Argentina, it applies only to ADICMA representatives and not generally. Only those specific persons are permitted to be present during the Customs clearing process. Therefore, the measure cannot be considered a rule of general application. The European Communities has responded that Argentina has incorrectly interpreted the Appellate Body's findings in European Communities – Measures Affecting the Importation of Certain Poultry Products³⁰⁴ . The European Communities also disagrees with certain aspects of the Panel's analysis in this regard. According to the European Communities, it is the administered substantive measure which must be a rule of general application, but not the administrative measure itself, the latter being the issue under Article X:3(a).

10.4 First, we must note a point of disagreement with the European Communities characterization of a part of the findings. We did not find that only the Customs rules on classification and export duties were subject to Article X:1, while the administrative measure contained in Resolution 2235 was subject to Article X:3(a). What we stated was that the rules on Customs classification and export duties, among others, were the substantive rules that should be examined if necessary under other provisions of the GATT 1994. In contrast, Resolution 2235 is an administrative measure applying those substantive rules and must therefore be applied in accordance with Article X:3(a). However, we are of the view that such administrative provisions must also be published in accordance with Article X:1. We think the European Communities has seen a dichotomy between Articles X:1 and X:3(a) that does not exist, particularly in light of the reference to Article X:1 contained in Article X:3(a). The language of the Appellate Body findings in European Communities – Poultry was not limited to Article X:1.

10.5 Second, the above observation being made, we agree with the underlying premise of the European Communities' point. To read Article X:3(a) the way suggested by Argentina would render it virtually meaningless, particularly with respect to the term "uniformly". The distinction drawn by the Appellate Body in European Communities – Poultry was between rules of general application and a claimed requirement to publish information with respect to "specific transactions".³⁰⁵ That is simply not an issue here. Resolution 2235 is not a transaction-specific provision. Rather there is a general right to be present accorded to ADICMA and that is generally applicable to all exports of bovine hides.

10.6 On this last point, Argentina states that the thrust of its arguments is that Resolution 2235 refers only to ADICMA representatives and that this is an identifiable operator and therefore too specific. However, the exports are not those of ADICMA but of bovine hides exporters. It is the latter as exporters who have the right to receive application of the Customs laws, regulations, decisions or rulings in a manner that is uniform, impartial and reasonable. It is the obligation to such exporters which is accorded by Article X:3(a), not to unrelated entities permitted to observe the transaction. We decline to alter our findings with respect to this issue.

10.7 With respect to the issue of confidentiality of information, Argentina argues that there is no duty under Article X to maintain confidentiality of information. Furthermore, Argentina states that this question of confidentiality was not within the terms of reference of the Panel, having only allegedly been raised by the European Communities in its first oral statement and thereafter.

10.8 With respect to the question of the terms of reference, we are of the view that the issue is properly within the terms of reference. The European Communities claimed that Resolution 2235 was inconsistent with the requirements of Article X:3(a). Thus, a measure and treaty provision were clearly defined and the basis of the claim was summarized (i.e., admission of ADICMA personnel to the Customs clearance process).³⁰⁶ It is then up to the parties to argue as to the basis for interpretation of the specific terminology of that treaty provision and how it applies to the facts at hand. This was the case here. Indeed, we note that the European Communities argued that mere presence of ADICMA representatives was inconsistent with Argentina's obligations contained in Article X:3(a). The Panel did not agree that the obligation extended so far with respect to the specific facts of this dispute but instead focussed on the issue of release of confidential information. Clearly these issues of detailed argumentation are not required to be stated in the request for establishment of a panel and therefore included in the terms of reference. We decline to change our findings in this regard.

10.9 With respect to the broader question of confidentiality under Article X, we agree with Argentina that Article X:1's language to the effect that release of confidential information is not required does not give rise to a substantive obligation to protect confidential information. The European Communities argued at one point that such was the case. We did not agree with the European Communities' arguments because, in our view, they were beside the point. The question here is what is required by the specific standards contained in Article X:3(a) in the light of the facts of this dispute. In deciding whether it is partial or unreasonable in the context of these facts for Argentina to provide confidential business information to ADICMA in contravention of the obligations of Article X:3(a), it is irrelevant that Article X:1's rules regarding publication do not establish an independent obligation to protect confidential information. We decline to change our findings in this regard.

10.10 Argentina argues that the Panel did not establish a standard for confidentiality. Argentina argues that simply because ADICMA had access to information that was not strictly necessary for its role regarding product classification, it does not follow that such information was therefore confidential. Furthermore, Argentina disagrees with the Panel's reference to the definition of confidential business information used in the Antidumping Agreement. Finally, according to Argentina, the Panel did not follow the rules of interpretation of the Vienna Convention.

10.11 With regard to the first two points, which we think must be considered together, we discussed precisely why we found the release of the information unreasonable. It was a two step process. First, was the information confidential and, second, was its release unreasonable? We confirm our reference to the language in Article 6.5 of the Antidumping Agreement (and Article 12.4 of the Agreement on Subsides and Countervailing Measures, which is identical, as the European Communities correctly points out). This definition seems logical and general in nature and it made sense in the context of the specific question before us. The information, such as pricing and the identity of the exporters, is confidential, for example, because it could be used by the downstream industry, made up of ADICMA members, when negotiating for the purchase of hides from the frigoríficos.³⁰⁷ It is unreasonable to give such information to customers and can be considered partial to them if there are no safeguards to prevent its abuse. The fact that such information was released to the downstream domestic industry in a process which did not, in itself, need such information showed why such release was unreasonable. However, the fact that the information was released did not go to the definition of whether it was "confidential".

10.12 With respect to the method of treaty interpretation, we disagree with Argentina's assertion that our analysis is not in accord with the Vienna Convention. It is true that we did not specifically cite or quote the Vienna Convention, but that is not necessary. Recitation of such treaty provisions is not required or desirable at every step. It is well accepted at this point that WTO treaty interpretation should follow the general guidance provided in the Vienna Convention. In our view, there was no need here to note a specific passage from the Vienna Convention. We simply proceeded in this section and the others contained in the findings to apply the rules. Part of the rules are that the various WTO Agreements can provide the context for interpreting terms. It is also important to recognize that a specific term can mean different things in different places as, for instance, is the case with respect to the term "like product".³⁰⁸ However, we do not think that is the case here. We examined every instance in the WTO Agreements where the term "confidential" was used. We found most to be lacking in any definition, but none inconsistent with the use of the term in the Antidumping Agreement. Thus, for purposes of this specific dispute we found the definition contained in Article 6.5 of the Antidumping Agreement provided a useful reference, but only a reference. We then proceeded to review what we considered to be confidential business information in this case. We decline to change our findings in this regard.

C. CLAIM UNDER ARTICLE III:2, FIRST SENTENCE, OF THE GATT 1994

10.13 With respect to footnote 456 (476), the European Communities refers to the Panel Report on United States – Import Measures on Certain Products from the European Communities.³⁰⁹ In that report, the panel found that the additional interest charges associated with the lodging of additional bonds intended to secure the payment of increased customs duties were inconsistent with Article II:1(b), second sentence, of the GATT 1994.³¹⁰ The European Communities contends that, according to our approach, the panel in United States – Certain Products should have considered these charges as part of the customs duties and therefore find them in violation of Article II:1(b), first sentence. We note that the majority on that panel considered that the WTO compatibility of the additional bonding requirement had to be determined by reference to, inter alia, Article II:1(b), first sentence. While it is arguable then that the WTO compatibility of the additional loss of interest could likewise be assessed under Article II:1(b), first sentence, we take no position on whether that would be the correct analysis with respect to the issue presented in United States – Certain Products. We consider that we have correctly interpreted and applied Article III:2, first sentence, to the issue presented in the case before us. We do not, therefore, see a reason to change our findings.³¹¹`

10.14 The European Communities recalls that the 12.7 percent rate payable under RG 3431 by non-registered taxable persons is not creditable and requests us to reconsider para. 10.202 (11.202) with this point in mind. There is, in our view, no need to do so. We have highlighted the non-creditability of the 12.7 percent rate in paras. 10.109 (11.109), footnote 453 (473) and para. 10.202 itself. The use of the term "pre-payment" in connection with the 12.7 percent rate has been addressed in para. 10.109.

10.15 The European Communities has identified a technical error in para. 10.203 (para. 11.203). We have made appropriate corrections in para. 10.203 as well as in para. 10.199 (para. 11.199).

10.16 The European Communities has commented on paras. 10.220-10.222 (11.220-11.222), saying that our reasoning did not dispose of Argentina's defence. We disagree. Moreover, we have stated clearly that internal sales by agentes de percepción/retención to agentes de percepción/retención are subject neither to the 5 percent rate under General Resolution (DGI) No. 3337/91 nor to the 10.5 percent rate under General Resolution (AFIP) No. 18/97. Nowhere do we suggest that such transactions are subject to pre-payment at a rate of 10.5 percent. Footnote 488 (508) does not say so. It simply addresses Argentina's argument that, without an exemption from the pre-payment requirement, the transactions in question would be subject to collection and withholding.

10.17 Concerning footnote 498 (518), the European Communities refers to the 1970 Working Party report on Border Tax Adjustment for the proposition that so-called cascade taxes qualify for border tax adjustment. We are not persuaded by the European Communities that there is a need to discuss the aforementioned Working Party report in footnote 498. In contrast, we considered it appropriate to refer to the Working Party II report on Schedules and Customs Administration because that report specifically addresses the legal issue raised by Argentina's counter-argument. The European Communities' also requests that we drop the reference to the Appellate Body's findings in United States – Tax Treatment for "Foreign Sales Corporations"³¹² on the grounds that that case dealt with direct taxes and is therefore irrelevant. However, the Appellate Body opinion in United States – FSC included pertinent reasoning on the implications of Members' choices of world-wide or territorial taxation systems and it is useful, in our view, to note this. Had Argentina supplied sufficient evidence to support its assertion in this regard, we would have addressed this issue in depth. We therefore decline to make the changes requested by the European Communities.

10.18 Regarding footnote 519 (539), the European Communities asserts that it did make a claim concerning the fact that imports for importers' own use or consumption are subject to pre-payment of the IG at a rate of 11 percent, whereas internal sales transactions are taxed at rates of either 2 percent or 4 percent. Since the European Communities has not been able to point to any statements or arguments which we might have overlooked or misunderstood, we are not persuaded to change our view. It is clear to us that the complaining party bears the risk of a lack of clarity and specificity in setting out and supporting its claims.³¹³ Unlike with other claims made by the European Communities, it is simply not clear from para. 96 of the EC First Written Submission or from any subsequent EC submissions that the European Communities makes a claim regarding the two rate differentials in question (i.e. 11 percent vs. 2 percent and 11 percent vs. 4 percent).³¹⁴ But the European Communities has not only failed to spell out such a claim in clear and unambiguous terms, it has also failed to present specific arguments to substantiate such a claim. In those circumstances, it is not possible for us to proceed to make findings in respect of this purported EC claim. Footnote 519 therefore remains unchanged but for a correction of a typographical error and a small stylistic change.
 
10.19 Argentina requests that the Panel reconsider its finding and conclusion in para. 10.161 (11.161) regarding the applicability of Article III:2, first sentence, to RG 3543. We see no need to accede to Argentina's request. As we stated in our findings, while RG 3543 is an aspect of a direct tax (the IG), it nevertheless is an internal charge applied to products for purposes of Article III:2, first sentence. Simply because the IG is not challenged and allegedly not inconsistent with Article III:2, first sentence, does not alter this fact. We wish to note, however, that it does not follow from our conclusion that RG 3543 is inconsistent with Article III:2, first sentence, that Argentina cannot require the pre-payment of the IG on imports. Argentina merely needs to do so in a manner consistent with Article III:2, first sentence.

10.20 Argentina further requests modification of our conclusion in para. 10.228 (11.228). Argentina argues that, were it to provide for a minimum pre-payment threshold also in RG 3431, such a provision would be a dead letter owing to the fact that any individual effecting imports in the (small) amount concerned would be a final consumer with a status not covered by RG 3431. Even ignoring the fact that Argentina is presenting a new argument here, we note that Argentina has provided no evidence in support of its statement that all individuals importing goods in the relevant amount would be final consumers.³¹⁵ It is not obvious to us why import transactions of a specified value would necessarily involve final consumers as importers.

10.21 Argentina requests a similar modification of our conclusion in para. 10.271 (11.271). We do not, however, see a reason for doing so. While Argentina's comments in this regard are less than clear and lack specific references, it seems to us that they relate to the absence of a monthly pre-payment allowance in RG 3543. Argentina again is presenting a new argument, namely that making available a monthly pre-payment allowance also to importers would be administratively burdensome since, according to Argentina, such an allowance would only apply to small enterprises, which it alleges are not regular importers. Regarding the alleged administrative burden, we refer to our considerations in para. 10.226 (11.226), which, mutatis mutandis, would appear to be relevant in the present context as well.³¹⁶
 
D. DEFENCE UNDER ARTICLE XX(D) OF THE GATT 1994

10.22 In response to comments by the European Communities on para. 10.305 (11.304), we felt appropriate to remove part of the last sentence thereof and to clarify our understanding and assessment of the European Communities' position in the new para. 11.306 and the new footnote 564. Even ignoring the fact that we disagree with the European Communities' characterisation of its own statement, summarised at para. 8.258 (8.258), as "at best ambiguous", we note that our findings and conclusion in the relevant section of our report do not depend on it.

10.23 The European Communities has requested us to reconsider our interpretative approach to Article XX. Specifically, the European Communities requests that we find, on the basis of paras. 10.316-10.331 (11.316-11.331), that the contested measures are not necessary within the meaning of Article XX(d).³¹⁷ We have carefully considered the European Communities' comments, but remain unconvinced, in light, inter alia, of the Appellate Body report on United States – Standards for Reformulated and Conventional Gasoline³¹⁸, that we should follow the approach proposed by the European Communities. Notwithstanding this, we felt that the European Communities' comments warranted a clarification of certain aspects of our findings. Accordingly, we converted para. 10.304 into the new footnote 560, made changes to paras. 10.303 (11.303), 10.306-10.307 (11.306-11.307), 10.312-10.313 (11.312-11.313), 10.315 (11.315), 10.322-10.324 (11.322-11.324) and 10.330 (11.330), including, where appropriate, to the footnotes accompanying those paragraphs, and added new footnotes (562, 565-566).

10.24 In light of comments made by the European Communities and seeing that it was not essential, we decided to delete footnote 542.

10.25 Regarding the European Communities' comment on footnote 543 (560), we considered that no change was called for. It should be noted, nonetheless, that we have found it convenient to combine its content with that of the new footnote 560. It may be mentioned in this context that, contrary to what the European Communities suggests, we do not consider anything other than the actual measures before us, i.e. RG 3431 and RG 3543, to be the "measures" which we must look at in our analysis under Article XX.³¹⁹
 
10.26 The European Communities also asserts that we disregard the fact that the nature and quality of the discrimination to be considered in an analysis under the chapeau is different from the discrimination at issue in an analysis under Article III. This is not the case, as is evident from para.
10.315 (11.315). Our approach and examination are, moreover, fully consistent with the Appellate Body's view that "[t]he provisions of the chapeau cannot logically refer to the same standard(s) by which a violation of a substantive rule has been determined to have occurred."³²⁰

10.27 Argentina points out, regarding footnote 551 (570), that it has made statements in the course of these proceedings which it considers the Panel should reference in the footnote. Those statements do not appear to us to be directly relevant to the issue under consideration in footnote 551. It should be noted, however, that we have taken due account of the statements referred to by Argentina, including the fact that Argentina is a developing country Member, in our assessment of whether RG 3431 and RG 3543 fall within the terms of Article XX(d).³²¹ In light of Argentina's comments, we nevertheless deemed it appropriate to clarify our position by modifying footnote 551 in relevant part, but maintain our overall conclusion in para. 10.331 (11.331).

10.28 Finally, the old footnote 545 was brought forward and now is footnote 561.

10.29 The Panel has also corrected several typographical errors and made a number of minor stylistic changes.

XI. FINDINGS

A. CLAIM UNDER ARTICLE XI:1 OF THE GATT 1994

1. Measure at issue and overview of the parties' arguments

11.1 The European Communities has alleged that certain measures imposed by Argentina restrict the export of bovine hides from Argentina. According to the European Communities this is contrary to Argentina's obligations under Article XI:1 of the GATT 1994. Article XI:1 provides as follows:

No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.

11.2 The European Communities has argued that the measure in question, Resolution (ANA) No. 2235/96³²², operates as a de facto restriction on exports. Resolution 2235 provides as follows:

Resolution No. 2235/96 of the IAANA
Hides (Export). Approval of Rules Concerning the Participation of
Certain Private Entities in the Inspection Process

…
HAVING REGARD TO the request in file No. 412739/96, submitted by the Association of Industrial Producers of Leather, Leather Manufactures and Related Products (ADICMA), and

WHEREAS:

In a submission made in 1993, the Argentinean Tanning Industry Association requested the restoration of its role in the inspection of hides destined for export;

Resolution No. 771/93 authorized officials appointed by the above-mentioned Association to participate jointly with customs personnel in the inspection of hides classified under the tariff headings set out in Annex IV hereto;

Resolutions Nos. 1650/93, 3208/93, 1024/94, 1380/94, 3746/94, 2257/95 and 134/96 extended the validity of Resolution No. 771/93 and expanded the list of the institutions involved;

The arguments put forward and the experience acquired provide reasonable grounds for granting the request made in the above-mentioned file, by making continued use of the services provided by the experts for a reasonable period of time so that the results obtained can be evaluated and a decision taken on the desirability or necessity of a further extension of those services;

It is considered appropriate to enact a regulation unifying the provisions in force;

By virtue of the powers conferred by Article 23(i) of Law 22415,
Wherefore,
The National Customs Administrator
Resolves:

Article 1. To approve the rules contained in Annexes I, II, III and IV which form an integral part of this Resolution, relating to the participation of certain private entitities in the inspection of hides destined for export operations.

Article 2. To repeal Resolutions Nos. 771/93, 1650/93, 3208/93, 1024/94, 1380/94, 3746/94, 2257/95 and 134/96.
…

ANNEX II [TO RESOLUTION 2235]

Operative Rules

1. The entities listed in Annex III hereto may appoint members of their staff to participate jointly with the agents involved in the inspection of goods classified under the tariff headings listed in Annex IV.

1.1 For this purpose, they shall inform this national administration of the appointment of representative experts and draw up lists of those appointed, containing particulars of each one's address, telephone and fax or telex numbers and the different customs jurisdictions in which they will be involved in joint inspection activities. They shall also keep those lists up to date.

1.2 The authorization hereby conferred shall be applicable in all customs jurisdictions.

1.3 In the Buenos Aires and Ezeiza customs jurisdictions, if and when the final export destinations for consumption or temporary export so require, staff may be kept on a permanent basis to carry out these support tasks.

1.4 The same facilities may be authorized in the customs departments in the interior of the country.

1.5 Final export destinations for consumption shall be checked in the case of those for which the red channel (goods to declare) was selected as well as all temporary export destinations.

1.6 Goods shall be inspected by the technical inspection and valuation unit, with the possible support of the expert appointed by the respective entity, but this will be done without holding up shipment operation if the expert is not present.

11.3 The measure in question was first implemented pursuant to a request of CICA³²³. Currently, it is implemented through the presence of representatives of ADICMA³²⁴ in the export process. As explained by Argentina, the actual export clearance process works in the following manner:³²⁵

11.4 When Customs receives a notice of embarkation by the exporter or his customs clearance agent, it notifies ADICMA that a clearance operation will take place, indicating the place, day and approximate time. ADICMA may be informed of this by a telephone call from the customs inspector, but there are instances in which it is notified of the place, date and approximate time of the clearance by the exporter's own customs clearance agent.

11.5 The inspection, classification and valuation of the goods declared are carried out by the Technical Inspection and Valuation Unit (UTVV). It verifies whether what is declared in the permit of shipment is correct, whether the tariff heading indicated corresponds to the description of the goods and whether the duties and charges proposed are appropriate and also cross-checks supplementary data, the number of packages and their identity. All of this is done in the presence of the customs officer, the ADICMA representative and the exporter or his customs clearance agent. The exporter or his customs clearance agent must be present during the inspection of the goods, failing which the exporter forfeits the right to raise any objections to the outcome of the inspection determined by the customs department. ³²⁶

11.6 If the inspecting officer determines that the merchandise has been correctly classified, the shipment goes ahead. If, on the other hand, the inspecting officer detects irregularities, shipment is not allowed. To the extent that there are discrepancies in the amount, quality and/or value of the goods, a complaint is lodged either with the Disputes Section of the customs department or with the competent local customs office.

11.7 Where ADICMA representatives disagree with the decision of the inspection officers, they may submit a complaint subsequently or, if appropriate, file criminal charges with a court. According to Argentina, shipments are not stopped on account of any possible objection from ADICMA representatives. Pursuant to Resolution 2235, there must not be any delays as a result of the failure of ADICMA representatives to participate in the inspection.

11.8 The European Communities has acknowledged that the Argentinean government is not overtly limiting exports except pursuant to certain export taxes which are not the subject of the European Communities' complaint. Instead, it is alleged that the Argentinean government has knowingly put in place a system which necessarily results in improper export restrictions. The European Communities has presented a number of arguments describing how these alleged export restraints operate, but we think they can best be summarized in the following manner by a series of questions which we will address:

(a) Does the mere presence of ADICMA constitute an export restriction?

(b) If not, does the alleged fact that ADICMA, by virtue of its presence, has access to business confidential information constitute an export restriction?

(c) If not, does the alleged fact that ADICMA has access to business confidential information constitute an export restriction if taken together with the alleged fact that the tanners form a cartel in the Argentinean market?

11.9 The European Communities has provided evidence supporting their allegations which we will examine in due course as we assess the merits of the arguments. We note specifically that the core of the factual case presented by the European Communities is the allegation of low levels of exports of bovine hides from Argentina in light of higher world prices that cannot be explained in any manner other than export restrictions. The European Communities has also cited the long history of export restrictions on bovine hides and argued that the current measures must be reviewed in light of that history.

11.10 Argentina has disputed all the claims made by the European Communities. Argentina has argued that there are in fact exports of bovine hides and that the export levels are not all that different from other countries, including some members of the European Communities.³²⁷ According to Argentina, the representatives of ADICMA are there to promote accurate, efficient and effective export clearance. The Argentinean government had problems with misclassification of exports in particular. This led to an underpaying of the required export duties as well as an overpaying of certain export "refunds" available on processed hides.³²⁸ Argentina has emphasized that ADICMA representatives do not have the authority to prohibit or even slow down exports.³²⁹ Argentina has also stated that ADICMA representatives have access to no information that is not otherwise available through on-line services, i.e., is in the public domain.

2. Burden of proof

11.11 The relevant rules concerning burden of proof, while not expressly provided for in the DSU, are well established in WTO jurisprudence. The general rule is set out in the Appellate Body report on United States – Measure Affecting Imports of Woven Wool Shirts and Blouses, wherein it is stated that:

[I]t is a generally-accepted canon of evidence in civil law, common law and, in fact, most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. If that 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. ³³⁰

11.12 In application of this rule, once we have satisfied ourselves that the party who asserts the affirmative of a particular claim or defence has succeeded in raising a presumption that its claim is true, it is incumbent on us to assess the merits of all the arguments made and the admissibility, relevance and weight of all the factual evidence submitted with a view to establishing whether the party contesting a particular claim has successfully rebutted the presumption raised. Should this assessment reveal that the arguments and the factual evidence adduced by the parties remain in equipoise, we must, as a matter of law, find against the party who bears the burden of proof.

11.13 Thus, it is for the European Communities as the complaining party to submit arguments and evidence sufficient to raise a presumption that Argentina acts inconsistently with its obligations under Articles XI:1.³³¹ If the European Communities succeeds in raising such a presumption, our task becomes a matter of weighing the evidence available to us to determine whether, on balance, we are convinced that Argentina has imposed measures incompatible with the provisions of the GATT 1994.

11.14 This dispute presented some difficulties for the Panel with respect to developing the facts. Whenever there is an assertion of a de facto restriction on trade, the importance of the factual analysis becomes accentuated. We have asked the parties an extensive series of questions in an attempt to understand the functioning of the market and the measure at issue in this dispute. We felt that there were facts of which we were not aware and which might be of importance and, therefore, we have not been fully satisfied that we have had a truly comprehensive view of some aspects of the situation. Ultimately, the burden of proof in any dispute rests with the complainant to support the claims made.

³⁰² Pursuant to Article 15.3 of the DSU, the findings of the final panel report shall include a discussion of the arguments made at the interim review stage. This Section of our report is therefore part of our findings.
³⁰³ Unless otherwise indicated, references to paragraphs and footnotes in this Section are to the interim Panel report and bracketed references to paragraphs and footnotes are to the Final Panel report.
³⁰⁴ Appellate Body Report on European Communities – Measures Affecting the Importation of Certain Poultry Products (hereafter "European Communities – Poultry"), adopted on 23 July 1998, WT/DS69/AB/R.
³⁰⁵ Ibid., at para. 109.
³⁰⁶ See WT/DS155/2.
³⁰⁷ We note that such information arguably could be used by ADICMA members to the detriment of their foreign competitors who are also purchasing hides from the frigoríficos.
³⁰⁸ See the Appellate Body Report on Japan – Taxes on Alcoholic Beverages, adopted on 1 November 1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, at p. 21.
³⁰⁹ Panel Report on United States – Import Measures on Certain Products from the European Communities (hereafter "United States – Certain Products"), under appeal, WT/DS165/R.
³¹⁰ Ibid., at para. 6.62.
³¹¹ In response to the European Communities' comment, it may further be noted that it is not inconsistent to say, as we have, that the loss or payment of interest in the present case does not, in itself, constitute a charge, but that General Resolution (DGI) No. 3431/91 (hereafter "RG 3431") and General Resolution (DGI) No. 3543/92 (hereafter "RG 3543") qualify as charges. Similarly, it is not inconsistent to say that the loss or payment of interest in the present case is incidental to the pre-payment of the IVA and IG required by RG 3431 and RG 3543, but that RG 3431 and RG 3543 are not "incidental to" the IVA Law and IG Law. Indeed, it would be counter-intuitive, in our view, to conclude otherwise.
³¹² Appellate Body Report on United States – Tax Treatment for "Foreign Sales Corporations" (hereafter "United States – FSC"), adopted on 20 March 2000, WT/DS108/AB/R.
³¹³ We nevertheless note that we have evaluated all of the European Communities' claims thoroughly and in good faith. See, for example, footnote 492 (512) as well as paras. 10.201 (11.201)and 10.208 (11.208) of this report.
³¹⁴ The European Communities does not argue, in its comments on the interim report, that it is making a claim in respect of only one of the two rate differentials in question.
³¹⁵ See also the last sentence of para. 10.226 (11.226) of this report.
³¹⁶ We further note that Argentina has, in any event, failed to explain and support its assertion that a monthly pre-payment allowance would apply only to small enterprises and that small enterprises are not regular importers.
³¹⁷ The European Communities has requested changes to paras. 10.313-10.314 (11.313-11.314), without, however, explaining what it wishes the Panel to change. We therefore decline to make changes, but refer to our comments on Argentina's request for changes to footnote 551 (570).
³¹⁸ Appellate Body Report on United States – Standards for Reformulated and Conventional Gasoline (hereafter "United States – Gasoline"), adopted on 20 May 1996, WT/DS2/AB/R.
³¹⁹ In accordance with the approach followed by the Appellate Body in United States – Gasoline, we evaluate those provisions of RG 3431 and RG 3543 which, taken together, give rise to inconsistencies with Article III:2, first sentence. See the Appellate Body Report on United States – Gasoline, supra, at pp. 13-14.
³²⁰ Appellate Body Report on United States – Gasoline, supra, at p. 23 (emphasis added).
³²¹ See paras. 11.299-11.307 of this report.
³²² Hereafter "Resolution 2235".
³²³ CICA is the Argentinean Chamber for the Tanning Industry (Cámara de la Curtidora Argentina).
³²⁴ ADICMA is the Association of Industrial Producers of Leather, Leather Manufactures and Related Products (Asociación de Industrias del Cuero, sus Manufacturas y Afínes). CICA itself is a member of ADICMA.
³²⁵ See paras. 2.38-2.44 of this report.
³²⁶ See Article 340 of Argentina's Customs Code.
³²⁷ See paras. 4.155-4.158 of this report.
³²⁸ See paras. 4.42-4.48 of this report.
³²⁹ See paras. 4.61-4.66 of this report.
³³⁰ Adopted on 23 May 1997, WT/DS33/AB/R, at p. 14 (hereafter "United States – Shirts and Blouses"). In our view, the rule set forth in this statement applies to claims of any kind, i.e. legal and factual claims.
³³¹ The question of burden of proof raised here applies likewise to our analyses with respect to Article X:3(a) of the GATT 1994 and Article III:2, first sentence, of the GATT 1994. In contrast, as regards Article XX of the GATT 1994, invoked by Argentina as an affirmative defence with respect to the Article III:2 allegations, the burden of proof rests with Argentina.