Document VjZj9d3yr1YYJ97Dg1Z8KGQjw

Page 23 "technical regula. tion" given in Annex 1.1 of that Agreement. 78. As we have reached a different conclusion from the Panel's regarding the applicability of the TBT Agreement to the measure, we now consider whether it is appropriate for u. e to rule on the claims made by Canada relating to the TBT Agreement. In previous appeals, we have, on occasion, completed the legal analysis with a view to fa cilitating the prompt settlement of the dispute, pursuant to Article 3.3 of the DSU. [FN48] However, we have insisted that we can do so only if the factual findings of the panel and the undisputed facts in the panel record provide us with a sufficient basis for our own analysis. If that has not been the case, we have not completed the analysis. [FN49J 79. The need for sufficient facts is not the only limit on our ability to complete the legal analysis in any given case. In Canada - Periodicals, we reversed the panel's conclusion that the measure at issue was inconsistent with Article 111:2, first sentence, o the GATT 1994, and we then proceeded to examine the United States' claims under Article 111:2, second sentence, which the panel had not examined at all. However, in embarking there on an analysis of a provision that the panel had not considered, we emphasized that "the first and second sentences of Article III-.2 are closely related * and that those two sentences are "part of a logical continuum .11 [FN50] (emphasis added) 80. In this appeal, Canada's outstanding claims were made tinder Articles 2.1, 2.2, 2.4 and 2.8 of the TBT Agreement. We observe that, although the TBT Agreement is intended to "furtlner the objectives of GATT 1994", it does so through a specialized legal regime that applies solely to a limited class of measures. For these measures, the TBT Agreement imposes obligations on Members that seem to be different from, and additional to, the obligations imposed on Members under the GATT 1994. *24 81. As the Banel decided not to examine Canada's four claims under the TBT Agreement, it made no findings, at all, regarding any of these claims. Moreover, the meaning of the different obligations in the TBT Agreement has not previously been the subject of any interpretation or application by either panels or the Appellate Body. Similarly, the provisions of the Tokyo Round Agreement on Technical Barriers to Trade, which pxreceded the TBT Agreement and which contained obligations similar to those in the TBT Agreement, were also never the subject of even a single ruling by a panel. 82. In light of their novel character, we consider that Canada's claims under the TBT Agreement have not been explored before us in depth. As the Panel did not address these claims, there are no "issues of law" or "legal interpretations" regarding them to be analyzed by the parties, and reviewed by us under Article 17.6 of the DSU. We also observe that the sufficiency of the facts on the record depends on the reach of tli provisions of the TBT Agreement claimed to apply - a reach that has yet to be determined. 83. With this particular collection of circumstances in mind, we consider that we do not have an adequate basis properly to examine Canada's claims under Articles 2.1, 2.2, 2.4 and 2.8 of the TBT Agreement and, accordingly, we refrain from so doing. VI. "Like Products" in Article III:4 of the GATT 1994 A. Background 84. In addressing Canada's claims under Article III:4 of the GATT 1994, the Panel