WORLD TRADE
ORGANIZATION
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WT/DS155/R
19 December 2000
(00-5282)
Original: English |
ARGENTINA –
MEASURES AFFECTING
THE EXPORT OF BOVINE HIDES
AND THE IMPORT OF FINISHED LEATHER
Report of the Panel |
The report of the Panel on Argentina –
Measures Affecting the Export of Bovine Hides and the Import of Finished
Leather is being circulated to all Members, pursuant to the DSU. The
report is being circulated as an unrestricted document from 19 December
2000 pursuant to the Procedures for the Circulation and Derestriction of
WTO Documents (WT/L/160/Rev.1). Members are reminded that in accordance
with the DSU only parties to the dispute may appeal a panel report. An
appeal shall be limited to issues of law covered in the Panel report and
legal interpretations developed by the Panel. There shall be no ex parte
communications with the Panel or Appellate Body concerning matters under
consideration by the Panel or Appellate Body.
Note by the Secretariat: This Panel Report shall be adopted by the
Dispute Settlement Body (DSB) within 60 days after the date of its
circulation unless a party to the dispute decides to appeal or the DSB
decides by consensus not to adopt the report. If the Panel Report is
appealed to the Appellate Body, it shall not be considered for adoption by
the DSB until after the completion of the appeal. Information on the
current status of the Panel Report is available from the WTO Secretariat.
TABLE OF CONTENTS
I. PROCEDURAL BACKGROUND
II. FACTUAL ASPECTS (MEASURES ON EXPORT OF BOVINE HIDES)
A. SCOPE OF THE CLAIM
B. THE PRODUCTS CONCERNED: PRODUCTION AND PROCESSING OF RAW AND
SEMI-TANNED HIDES
C. PRODUCTION, PRICE, AND TRADE FIGURES OF RAW HIDES, SEMI-FINISHED AND
FINISHED LEATHER
1. Production figures for raw hides
in Argentina
2. Export figures for raw hides and semi-tanned (wet blue) leather
3. Import figures for raw hides and semi-tanned (wet blue) leather
D. CONTEXT OF GOVERNMENT MEASURES
REGARDING THE EXPORT OF RAW BOVINE HIDES IN ARGENTINA
E. RESOLUTION 2235
F. THE PRACTICAL APPLICATION OF RESOLUTION 2235/96
III. CLAIMS BY THE PARTIES
IV. MAIN ARGUMENTS
A. VIOLATION OF ARTICLE XI:1 OF THE GATT 1994
1. Export prohibitions or
restrictions maintained by a Contracting Party, made effective through
"other measures"
2. Rationale for the enactment of the Resolution
3. Alleged restrictive effect due to the presence of ADICMA
representatives
4. Alleged disclosure of confidential information to ADICMA
representatives
5. Market power of tanneries vs. slaughterhouses and the alleged
existence of a cartel
6. Claim that export and price figures reflect the restrictive
effect of the measure on exports of raw bovine hides
(a) Interpretation of figures of hide
production in Argentina
(b) Interpretation of export figures from Argentina
(c) Price differential between Argentine and US hides
(d) Argument that the "shortfall" of raw hides leads to increased
imports of raw and wet blue hides
(e) Claim that ratio of production to export in Argentina is low
B. VIOLATION OF ARTICLE X:3 (A) OF THE
GATT 1994
1. Allegation that Resolution 2235
commits Argentina to an administration of customs laws which is not
impartial, reasonable, and uniform
2. Applicability of Article X:3(a) of the GATT 1994 to Resolution 2235
V. THIRD PARTY SUBMISSION BY THE UNITED
STATES
VI. FACTUAL ASPECTS (TAX MEASURES ON IMPORTS)
A. THE IVA
B. ADVANCES ON THE IVA
1. Collection of the IVA on imports
2. Collection of the IVA on internal sales
C. THE IG
D. ADVANCES ON THE IG
1. Collection of the IG on imports
2. Collection of the IG on internal sales
VII. CLAIMS BY THE PARTIES
VIII. MAIN ARGUMENTS
A. ARTICLE III:2 OF THE GATT 1994
1. Scope and applicability of
Article III:2 of the GATT 1994
(a) Applicability of Article III:2 of
the GATT 1994 to advances on the IG
(b) Coverage of the advance systems by Article III:2 of the GATT
1994
(c) Coverage of "lost interest" by Article III:2 of the GATT 1994
2. "Likeness" of imported products
and domestically produced products
3. Claim that imported products are taxed "in excess of" like domestic
products
(a) Claim that the advance IVA on
imports results in a heavier tax burden than the advance IVA
domestic sales
(i) Comparison of tax burden
between imported and domestic products
(ii) Mechanism for the exemption from advance IVA collection on
imports
(iii) Argument that the impact of a financial cost is limited to a
maximum of 30 days
(iv) Existence of a differential between generally applicable
rates – issue of whether the differential is due to the tax
collection method
(v) The additional IVA on internal transactions does not apply to
sales by non-registered taxable persons, whereas the additional
IVA on imports is levied also on imports by non-registered
taxpayers
(vi) Situation of importers vis-à-vis entities that are not
withholding agents in internal sales.
(vii) Situation of importers vis-à-vis certain categories of
purchasers in internal sales
(viii) Threshold amounts available for internal sales, yet not for
imports
(ix) Equal treatment of imported and domestic products
(x) De minimis qualification under Article III:2 of the GATT 1994
(b) Claim that the IG "collected" on
imports imposes a heavier tax burden than the IG "withheld" on
domestic sales
(i) Mechanism for the exemption
from the advance IG collection on imports
(ii) Mechanism for refunds in situations of actual overpayment of
taxes
(iii) De minimis qualification under Article III:2 of the GATT
1994
4. The requirement of "protection"
in the application of Article III:2 of the GATT 1994
B. GENERAL EXCEPTION OF ARTICLE XX (D) OF
THE GATT 1994
1. Paragraph (d) of Article XX of
the GATT 1994
(a) "To secure compliance with laws
or regulations which are not inconsistent with the provisions of
this Agreement"
(b) The "necessary" character of the measure
2. Relationship of the "chapeau" of
Article XX of the GATT 1994 to the content of paragraph (d)
3. Justification of the advance IVA and IG under the "chapeau" of
Article XX of the GATT 1994
(a) "Arbitrary or unjustifiable"
discrimination
(b) Disguised restriction
IX. THIRD PARTY SUBMISSION BY THE UNITED
STATES
X. INTERIM REVIEW,
A. BACKGROUND
B. CLAIM UNDER ARTICLE X:3(A) OF THE GATT 1994
C. CLAIM UNDER ARTICLE III:2, FIRST SENTENCE, OF THE GATT 1994
D. DEFENCE UNDER ARTICLE XX(D) OF THE GATT 1994
XI. FINDINGS
A. CLAIM UNDER ARTICLE XI:1 OF THE GATT
1994
1. Measure at issue and overview of
the parties' arguments
2. Burden of proof
3. Nature of the claim before the Panel
4. Mere presence of tanners' representatives as an export restriction
5. Presence of tanners' representatives along with access to
information as an export restriction
6. Presence of tanners' representatives, access to confidential
information and abuse of such information as an export restriction
B. CLAIM UNDER ARTICLE X:3(A) OF THE GATT
1994
1. Measure at issue and overview of
the parties' arguments
2. How Article X:3(a) relates to other provisions of the GATT 1994
(a) General
(b) Article X:3(a) and MFN
(c) Substantive rules versus administration
(d) Laws of general application
3. Is Resolution 2235 uniform,
impartial and reasonable?
(a) General
(b) Uniformity
(c) Reasonableness
(d) Impartiality
C. CLAIMS UNDER ARTICLE III:2, FIRST
SENTENCE, OF THE GATT 1994
1. Factual aspects
(a) Value-added tax (IVA)
(ii) The IVA
(iii) Pre payment of the IVA
Pre payment of the IVA on imports
Pre payment of the IVA on internal sales
(b) Income tax (IG)
(i) The IG
(ii) Pre payment of the IG
Pre payment of the IG on imports
Pre payment of the IG on internal sales
2. Overview of the parties'
arguments and analytical approach followed
3. Applicability of Article III:2
(a) Tax measures
(b) Internal measures
(c) Measures applied to products
4. Likeness of imported and domestic
products
5. Comparison of tax burdens imposed
(a) Tax burdens imposed
(b) Pre payment of the IVA
(i) Claims by the European
Communities
Lower pre payment rates applicable to
internal sales to registered taxable
persons
No pre payment on internal sales to non
registered taxable persons
No pre payment on internal sales by non
agentes de percepción
No pre payment on internal sales to
certain financial entities or agentes de
percepción/retención
Minimum pre payment threshold for
internal sales
(ii) Broad counter-arguments by Argentina
Adjustment for prior-stage pre payment
Exemption mechanism
Magnitude and duration of the tax burden
differentials
Provisions of domestic law
(iii) Conclusions
(c) Pre payment of the IG
(i) Claims by the European
Communities
Lower pre payment rates applicable to
internal sales by registered taxable
persons
No pre payment on internal sales of goods
destined for the purchaser's own use or
consumption
Minimum pre payment threshold and
monthly pre payment allowance for
internal sales
(ii) Broad counter-arguments by Argentina,
Exemption mechanism
Refund mechanism
Magnitude of the tax burden differential
(iii) Conclusions
6. Defence under Article XX(d) of the GATT 1994
(a) Overview of the parties'
arguments and analytical approach followed
(b) Provisional justification under paragraph (d) of Article XX
(i) Existence of measures which
secure compliance with other laws or regulations
(ii) Consistency with the GATT 1994 of those other laws or
regulations
(iii) Necessity of the measures taken to secure compliance
(c) Consistency with the requirements
of the chapeau of Article XX
(i) Interpretation and
application of the chapeau
(ii) Justifiability of discrimination
XII. CONCLUSIONS
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