Document zd2jwZ2Z0LmyMgVo1JyJp6rJ3

Page 28 protection to domestic production". If there is "less favourable treatment" of the group cof "like" imported products, there is, conversely, "protection" of the group of "lilce" domestic products. However, a Member may draw distinctions between products which have been found to be "like" , without, for this reason alone, according to the group of "like" imported products "less favourable treatment" than that accorded to the group of "like" domesfc. ic products. In this case, we do not examine further the interpretation of the term "treatment no less favourable" in Article 111:4, as the Panel's findings on this issue have not been appealed or, indeed, argued before us. C. Examining the "Likeness" of Products und.er Article 111:4 of the GATT 1994 101. We turn to consideration of how a tr-eaty interpreter should proceed in determi_ring whether products are "like" under Article 111:4. As in Article 111:2, in this determination, "[n]o one approach ... will be appropriate for all cases." [FN71] Rather, an assessment utilizing "an unavoidable element of individual, discrete.ionary judgement" [FN72] has to be ttrade on a case-by-case basis. The Report of the Working Party on Border Tax Adjustments outlined an approach for analyzing "likeness" that has been followed and devel oped since by several panels and the Appella-te Body. [FN73] This approach has, i n the main, consisted of employing four general- criteria in analyzing "likeness": ( i) the properties, nature and quality of the products; (ii) the end-uses of the products; (iii) consumers' tastes and habits - more comprehensively termed consumers' perceptions and behaviour - in respect of the products; and (iv) the tariff classification of the products. [FN74] We note that tlxese four criteria comprise four categories of "characteristics" that the products involved might share: (i) the phys ical properties of the products; (ii) the extent to which the products are capable of serving the same or similar end-uses; (iii) fc-he extent to which consumers perceive and treat the products as alternative means of performing particular functions in. order to satisfy a particular want or demand; and (iv) the international classifi cation of the products for tariff purpose s. *30 1_02. These general criteria, or groupings of potentially shared characteristics, provide a framework for analyzing the "likeness" of particular products on a case-by-case basis. These cri teria are, it is well to bear in mind, simply tools to assist in the task of sorting and examining the relevant evidence. They are neither a treaty-mandated nor a closed list of criteria that will determine the leg-al characterization of products. More important, the adoption of a particular framework to aid in the examination of evidence does not dissolve theduty or the need to examine, in each case, all of the pertinent evidence. In addition, although each cr-iterion addresses, in principle, a different aspect of the products involved, which should be examined separately, the different criteria are interrelated. For instanc e, the physical properties of a product shape and limit the end-uses to which the products can be devoted. Consumer perceptions may similarly influence - modify or even, render obsolete - traditional uses of the products. Tariff classification clearly- reflects the physical properties of a product. 103. The kind of evidence to be examined dn assessing the "likeness" of products will, n-ecessarily, depend upon the particular products and the legal provision at issue. When all the relevant evidence has been examined, panels must determine whether- that evidence, as a whole, indicates that the products in question are "like" in terms of the legal provision at issue. We have noted that, under Article III: 4 of the GATT 1994, the term "like products" is concerned with competitive relationships between and among products. Accordingly, whether the Border Tax Adjustments framework is adopted or not, it is important under Article III:4 to take account of evidence which indicates whether , and to what extent, the products involved are - or could be - in a competiti-ve relationship in the marketplace. I