Document OdXRKZLx45XpG53keK7jDMaj

Page 38 particular cement-based product for a specific end-use. [FN133] Once again, it may be that tiles containing chrysotile asbestos fibres perform some end-uses, such as resistance to heat, more efficiently than tiles containing a PCG fibre. Thus, while we accept that the two different types of cement-based products may perform largely similar end-uses, in the absence of evidence, we cannot determine whether each type of cement-based product can perform, with equal efficiency, all of the functions performed by the other type of cement- based product. 145. As with the fibres, Canada contends that evidence on consumers' tastes and habits concerning cement-based products is irrelevant. Accordingly, Canada submitted no such evidence to the Panel. We have dismissed Canada 's arguments in support of this contention. [FN134] We have also indicated that it is of particular importance, under Article III of the GATT 1994, to examine evidence relating to competitive relationships in the marketplace. [FN135] We consider it likely that the presence of a known carcinogen in one of the products will have an influence on consumers' tastes and habits regarding that product. [FN136] It maybe, for instance, that, although cement-based products containing chrysotile asbestos fibres are capable of performing the same functions as other cement-based products, consumers are, to a greater or lesser extent, not willing to use products containing chrysotile asbestos fibres because of the health risks associated with them- Vet, this is only speculation; the point is, there is no evidence. We are of the view that a determination on the "likeness" of the cement-based products cannot be made, under Article III: 4, in the absence of an examination of evidence on consumers' tastes and habits. And, in this case, no such evidence has been submitted. 146. As regards tariff classification, we observe that, for any given cementbased product, the tariff classification of the product is the same. [FN137] However, this indication of "likeness" cannot, on its ov^rn, be decisive. 147. Thus, we find that, in particular, in the absence of any evidence concerning consumers' tastes and habits, Canada has not satisfied i.ts burden of proving that cement-based products containing chrysotile asbestos fibres are "like" cement-based products containing PCG fibres, under Article 111:4 of t-he GATT 1994. 148. As Canada has not demonstrated either that chrysotile asbestos fibres are "like" PCG fibres, or that cement-based products contain-ing chrysotile asbestos fibres are "like" cement-based products containing PCG f ibres, we conclude that Canada has not succeeded in establishing that the measure at issue is inconsistent with Article III;4 of the GATT 1994. 149. One Member of the Division hearing this appeal wi shes to make a concurring statement. At the outset, I would like to make it abundantly clear that I agree with the findings and conclusions reached, and the reasoning set out in support thereof, by the Division, in: Section V (TBT Agreement); Section "VII (Article XX(b) of the GATT 1994 and Article ll of the DSU),- Section VIII (Article XXIIl:l(b) of the GATT 1994); and Section IX (Findings and Conclusions) of the Heport. This concurring statement, in other words, relates only to Section VI ("like Products" in Article III:4 of the GATT 1994) of the Report. *42 150. More particularly, in respect of Section VI of the Report, I join in the findings and conclusions set out in: paragraphs 116, 126 , 128, 131, 132, 141, 147 and 148. I am bound to say that, in truth, I agree with s great deal more than just the bare findings and conclusions contained in these eiglnt paragraphs of the Report. It is, however, as a practical matter, not feasible to sort out and identify which part of which paragraph, of the sixty-odd paragraphs comprising Section VI of our Report in which I join. Nor is it feasible to offer a detailed statement with respect to the portions that would then remain. Accordingly, I set out only two related matters below.