Document pBdre7dqNgQ7O2MyQeYgVQ9bj

Page 33 similar end-uses. Nor did the Panel examine the end-uses for these products which were not similar. In these circumstances, we believe that the Panel did not adequately examine thie evidence relating to end-uses. *35 120. The Panel declined to examine or make any findings relating to the third criterion, consumers' tastes and habits, "[b]ecause this criterion would not provide clear results". [FNIOO] There will be few situations where the evidence on the "likeness" of products will lend itself to "clear results". In many cases, the evidence will give conflicting indications, possibly within, each of the four criteria. For instance, there may be some evidence of similar physical properties and some evidence of differing physical properties. Or the physical properties may differ completely, yet there may be strong evidence of simi lar end-uses and a high degree of substitutatoility of the products from the perspective of the consumer. A panel cannot decline to inquire into relevant evidence simply because it suspects that evidence may not. be "clear" or,.for that matter, because the parties agree that certain evidence is rxot relevant. [FN101] In any event, we have difficulty seeing how the Panel could conclude that an examination of consumers' tastes and habits "would not provide cl_ear results", given that the Panel did. not examine any evidence relating to this criterion. 121. Furthermore, i_n a case such as this, where the fibres are physically very different, a panel cstnnot conclude that they are "like products" if it does not examine evidence rela-ting to consumers' tastes and habits. In such a situation, if there is no inquiry i_nto this aspect of the nature and extent of the competitive relationship between the products, there is no basis for overcoming the inference, drawn from the differ~ent physical properties of the product s, that the products are not "like". 122. In this case especially, we are also persuaded that evidence relating to consumers' tastes and habits would establish that the healtlh risks associated with chrysotile asbestos fibres influence consumers' behaviour with respect to the different fibres at i_ssue. [FN102] We observe that, as regards chrysotile asbestos and PCG fibres, the consumer of the fibres is a manufacturei who incorporates the fibres into another product, such as cement-based products or brake linings. We do not wish to speculates on what the evidence regarding these consumers would have indicated; rather, w& wish to. highlight that consumers' tastes and habits regarding fibres, even in the case of commercial parties, such as manufacturers, are very likely to be shaped l>y the health risks associated with a poroduct which is known to be highly carcinogenic. [FN103] A manufacturer cannot, for instance, ignore the preferences of the ul timate consumer of its products. If the risks posed by a particular product are sufficiently great, the ultimate consumer may simply cease to buy that product. This would, undoubtedly, affect a manufacturer's decisions in the marketplace. Moreover-, in the case of products posing risks to human health, we think it likely that manufacturers' decisions will be influenced by other factors, such as the potential civil liability that might flow from marketing products posing a health risk to the ultimate consumer, or the additional costs associated with safety procedures required to use such products in the manufacturing process. *36 123. Finally, we note that, although we consider consumers' tastes and habits significant in determining "likeness" in this dispute, at tlie oral hearing, Canada indicated that it con.eiders this criterion to be irrelevant , in this dispute, because the existence of the measure has disturbed normal conditions of competition between the products. In our Report in Korea - Alcoholic Be-verages, we observed that, "[p] articularly in a market where there are regulatory barriers to trade or to competition, there ma.y well be latent demand" for a product . [FN104] We noted that, in such situations, " it may be highly relevant to examine latent demand" that is suppressed by regulat ory barriers. [FN105] In addition, we said that "evidence from other markets may be pertinent to the examination of the manrket at issue, particularly when demand on that market has been influenced by regulatory barriers