Document 2B75BNyJD2YznkeZyk77qxka

Page 39 151. In paragraph 113 of the Report, we state that "[w]e are very itnuch of the view that evidence relating to the ^health risks associated with a product may be pertinent in an examination of 'likeness' under Article III:4 of the GATT 1994." We also point out, in paragraph 1H4, that ''[p]anels must examine fully the physical properties of products. In particular, ... those physical properties of products that are likely to influence tine competitive relationship between products in .the market place. In the cases of chrysotile asbestos fibres, their moleccular structure, chemical composition, and fibrillation capacity are important because the microscopic particles and filaments of chrysotile asbestos fibres are carcinogenic in humans, following inhalation." This carcinogenicity we describe as "a defining aspect of the physical properties of chrysotile asbestos fibres", [Fb>fl38] which property is not shared by the (PCG fibres, "at least to the same extent. " [FN139] We express our inability to "see low this highly significant physical difference cannot be a consideration in examining the physical properties of a product as part of a determination of 'likeness' un.der Article 111:4 of the GATT 1994." [E:'N140] (emphasis in the original) We observe al so that the Panel, after noting that tine carcinogenicity of chrysotile asbestos fibres has been acknowledged toy international bodies and confirmed by the experts the Panel consulted, ruled that it "[has] sufficient evidence that there is in fact a serious carcinogenic risl-c associated with the inhalation of chrysot. ile fibres." [FN141] (emphasis added) DCn fact, the scientific evidence of record for this finding of carcinogenicity of chrysotile asbestos fibres is so clear, v-oluminous, and is confirmed, a number of times, by a variety of international organ.izations, as to be practically overwhelming. 152. In the present appeal, considering the nature and quantum of the scientific evidence showing that the physical properties and qualities of chrysotile asbestos fibres include or result in carcinogenicity, my submission is that tlnere is ample basis for a definitive characterization, on completion of the legal analysis, of such fibres as not "like" PCG fibres. PCG fibres, it may be recalled , have not been shown by Canada to have the same lethal properties as chrysotile asbestos fibres. That definitive characterization, it is further submitted, may and slnould be made even in the absence of evidence concerning the other two Border Tax Adjustments criteria (categories of "potentially shared characteristics") of end-uses and consumers' tastes and habits. It is difficult for me to imagine whatevidence relating to economic competitive relationships as reflected in end-uses and consumers' tastes and habits could outweigh and set at naught the undisputed deadly nature of chrysotile asbestos fibres, compared with PCG fibres, when inhaled by humans, and thereby compel a characterization of "likeness" of chrysotile asbestos and PCG fibres. *43 153. The suggestion I make is not that any kind or degree of health risk, associated with a particular product, would a priori negate a finding of the "likeness" of that product with another product, under Article 111:4 of the GATT 1994. The suggestion is a very narrow one, limited only to the circumstances of this case, and confined to chrysotile asbestos fibres as compared with PC<3 fibres. To hold that these fibres are not "like" one another in view of the undisputed carcinogenic nature of chrysotile asbestos fibres appears to me to be but a small and modest step forward from mere reversal of the Panel's ruling tha t chrysotile asbestos and PCG fibres are "like", especially since our holding in completing the analysis is that Canada failecd to satisfy a complainant's burden of proving that PCG fibres are "like" chrysotile asbestos fibres under Article 111:4. Th.at small step, however, the other Members of the Division feel unable to take becau.se of their conception of the "fundamental", perhaps decisive, role of economic competitive relationships in the determination of the "likeness" of products under Article III:4. 154. My second point is that the necessity or appropriateness of a-dopting a "fundamentally" economic interpretation of the "likeness" of product, s under Article III: 4 of the GATT 1994 does not appear to me to be free from substantial doubt.