WORLD TRADE
ORGANIZATIONWT/DS139/AB/R
WT/DS142/AB/R
31 May 2000
(00-2170)
Original: English
CANADA – CERTAIN MEASURES AFFECTING
THE AUTOMOTIVE INDUSTRY
AB-2000-2
Report of the Appellate BodyWT/DS139/AB/R
WT/DS142/AB/R
Page i
I. Introduc tion ................................................................................................................. ......................1
II. The Measure and Its Background .............................................................................................. .......3
III. Arguments of the Participan ts and Third Pa rticipan ts......................................................................6
A. Claims of Error by Canada – Appellant ........................................................................6
1. Article I:1 of the GATT 1994...........................................................................6
2. Article 3.1(a) of the  SCM Agreement ..............................................................7
3. Article I:1 and Article II:1 of the GATS...........................................................8
B. Arguments by the European Communities – Appellee ...................................................9
1. Article I:1 of the GATT 1994...........................................................................9
2. Article 3.1(a) of the  SCM Agreement ..............................................................9
3. Article I:1 and Article II:1 of the GATS.........................................................10
C. Arguments by Japan – Appellee ...................................................................................11
1. Article I:1 of the GATT 1994.........................................................................11
2. Article 3.1(a) of the  SCM Agreement ............................................................11
3. Article I:1 and Article II:1 of the GATS.........................................................12
D. Claims of Error by the European Communities – Appellant .......................................13
1. Article 3.1(a) of the  SCM Agreement  – European Communities' Claim
Regarding CVA Requirements .......................................................................13
2. Article 3.1(b) of the  SCM Agreement ............................................................13
E. Claims of Error by Japan – Appellant .........................................................................14
1. Article 3.1(a) of the  SCM Agreement ............................................................14
2. Article 3.1(b) of the  SCM Agreement ............................................................15
F. Arguments by Canada – Appellee ................................................................................16
1. Article 3.1(a) of the  SCM Agreement ............................................................16
2. Article 3.1(b) of the  SCM Agreement ............................................................17
G. Third Participants ........................................................................................................18
1. Korea...............................................................................................................18
2. United States...................................................................................................20
IV. Issues Raised in this Appeal................................................................................................ ............20
V. Article I:1 of the GATT 1994 ................................................................................................. ........21WT/DS139/AB/R
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VI. Article 3.1(a) of the  SCM Agreement ............................................................................................27
A. Whether the Measure Constitutes a "Subsidy" ............................................................27
B. Whether the Measure is "Contingent…in Law…upon Export Performance" ..............30
VII. Article 3.1(a) of the  SCM Agreement   - European Communities' Claim Regarding CVA
Requirements................................................................................................................... ................35
VIII. Article 3.1(b) of the  SCM Agreement ............................................................................................37
A. Whether the Measure is Contingent "in Law" Upon the Use of Domestic over
Imported Goods ...........................................................................................................37
B. Whether the Measure is Contingent "in Fact" Upon the Use of Domestic over
Imported Goods ...........................................................................................................44
IX. Article I:1 and Artic le II:1 of the GATS.................................................................................... .....48
A. Article I:1 of the GATS ................................................................................................48
B. Article II:1 of the GATS ...............................................................................................55
X. Findings and Conclusions ..................................................................................................... ..........60WT/DS139/AB/R
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WORLD TRADE ORGANIZATION
APPELLATE BODY
Canada – Certain Measures Affecting the
Automotive Industry
Canada,  Appellant/Appellee
Japan,  Appellant/Appellee
European Communities,  Appellant /Appellee
Korea,  Third Participant
United States,   Third ParticipantAB-2000-2
Present:Ehlermann,  Presiding Member
Bacchus,  Member
Feliciano,  Member
I. Introduction
1. Canada, the European Communities and Japan appeal certain issues of law and legal
interpretations in the Panel Report,   Canada – Certain Measures Affecting the Automotive Industry
(the "Panel Report").1  The Panel was established to consider a complaint by the European
Communities and Japan with respect to a Canadian measure which provides a duty exemption for theimportation of certain automobiles, buses and other specified commercial vehicles ("motor vehicles").According to the Panel, the Canadian measure consists of the Motor Vehicles Tariff Order, 1998 (the"MVTO 1998") and Special Remission Orders (the "SROs") promulgated by the Government ofCanada.
2  Pertinent aspects of the Canadian measure are described in Section II below.
2. The Panel considered claims by the European Communities and Japan that the measure is
inconsistent with Article I:1 of the General Agreement on Tariffs and Trade 1994 (the "GATT1994")
3;  with Article III:4 of the GATT 1994;  with Article 2 of the  Agreement on Trade-Related
Investment Measures  (the " TRIMs Agreement ");  with the prohibition on export subsidies under
Article 3.1(a) of the  Agreement on Subsidies and Countervailing Measures  (the " SCM Agreement ");
with the prohibition on subsidies contingent on the use of domestic over imported goods underArticle 3.1(b) of the  SCM Agreement ;  with Article II of the General Agreement on Trade in Services
                                                     
1WT/DS139/R, WT/DS142/R, 11 February 2000.
2Panel Report, paras. 2.15-2.35.
3Japan argued that the inconsistency with Article I:1 of the GATT 1994 resulted from the treatment of
all "motor vehicles", whereas the European Communities restricted its claim under this provision to thetreatment of "automobiles".  Panel Report, paras. 5.19, 6.9, 6.38 and 10.7.WT/DS139/AB/R
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(the "GATS")4;  and with Article XVII of the GATS.  The Panel Report was circulated to the
Members of the World Trade Organization (the "WTO") on 11 February 2000.
3. The Panel concluded as follows:  (a) that Canada acts inconsistently with Article I:1 of the
GATT 1994;  (b) that the inconsistency with Article I:1 of the GATT 1994 is not justified underArticle XXIV of the GATT 1994;  (c) that Canada acts inconsistently with Article III:4 of theGATT 1994, as a result of the application of the Canadian value added requirements;  (d) that theEuropean Communities and Japan failed to demonstrate that Canada acts inconsistently withArticle III:4 of the GATT 1994, as a result of the application of the production-to-sales ratiorequirements;  (e) that Canada acts inconsistently with Article 3.1(a) of the  SCM Agreement ;  (f) that
the European Communities and Japan failed to demonstrate that Canada acts inconsistently with its
obligations under Article 3.1(b) of the  SCM Agreement ;  (g) that Canada acts inconsistently with
Article II of the GATS;  (h) that the inconsistency with Article II of the GATS is not justified byArticle V of the GATS;  (i) that Japan failed to demonstrate that the import duty exemption under themeasure constitutes treatment less favourable accorded to Japanese suppliers of wholesale tradeservices of motor vehicles than that accorded to like Canadian service suppliers, within the meaning
of Article XVII of the GATS;  and (j) that Canada acts inconsistently with Article XVII of the GATSby according treatment less favourable to services and service suppliers of other Members than itaccords to its own like services and service suppliers, as a result of the application of the Canadian
value added requirements.
5
4. With respect to its conclusions under Articles I:1 and III:4 of the GATT 1994, and Articles II
and XVII of the GATS, the Panel recommended that the Dispute Settlement Body (the "DSB")request Canada to bring its measure into conformity with its obligations under the  WTO Agreement .
Having found that certain production-to-sales ratio requirements, imposed as one of the conditions fordetermining eligibility for the import duty exempti on, are inconsistent with Article 3.1(a) of the
SCM Agreement , the Panel recommended that Canada withdraw the subsidies within 90 days pursuant
to Article 4.7 of the  SCM Agreement .
6
                                                     
4Japan argued that the inconsistency with Article II:1 of the GATS resulted from the treatment of all
"motor vehicles", whereas the European Communities restricted its claim under this provision to the treatmentof "automobiles".  Panel Report, paras. 5.19, 6.710, 6.716 and 10.7.
5Ibid. , para. 11.1.
6Ibid. , para. 11.7.WT/DS139/AB/R
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5. On 2 March 2000, Canada notified the DSB of its intention to appeal certain issues of law
covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant toparagraph 4 of Article 16 of the  Understanding on Rules and Procedures Governing the Settlement of
Disputes  (the "DSU"), and filed a Notice of Appeal pursuant to Rule 20 of the  Working Procedures
for Appellate Review  (the " Working Procedures ").  On 13 March 2000, Canada filed its appellant's
submission.
7  On 17 March 2000, the European Communities and Japan each filed its own appellant's
submission.8  On 27 March 2000, Canada9, the European Communities and Japan10 all filed appellees'
submissions.  On the same day, Korea and the United States each filed a third participant'ssubmission.
11
6. The oral hearing in the appeal was held on 6 and 7 April 2000.  In the oral hearing, the
participants and third participants presented oral arguments and responded to questions put to them bythe Members of the Division hearing the appeal.
II. The Measure and Its Background
7. The Canadian measure
12 at issue in this appeal is duty-free treatment provided to imports of
automobiles, buses and specified commercial vehi cles ("motor vehicles") by certain manufacturers
under the Customs Tariff 13, the Motor Vehicles Tariff Order, 1998 (the "MVTO 1998")14 and the
Special Remission Orders (the "SROs").15  The conditions under which eligibility for the import duty
exemption is determined are set out in the MVTO 1998, the SROs and certain Letters of Undertaking
(the "Letters").16
                                                     
7Pursuant to Rule 21(1) of the  Working Procedures .
8Pursuant to Rule 23(1) of the  Working Procedures .
9Pursuant to Rule 23(3) of the  Working Procedures .
10Pursuant to Rule 22 of the  Working Procedures .
11Pursuant to Rule 24 of the  Working Procedures .
12In this Report, we refer to this measure as either the "import duty exemption" or the "measure".
13S.C. 1997, c. 36.
14Under Canadian law, the MVTO 1998 is a regulation promulgated by the Governor-General-in-
Council, on the recommendation of the Minister of Finance, under the authority of the Customs Tariff, S.C.1997, c. 36, subsections 14(2) and 16.  See Panel Report, footnote 24.
15The SROs are regulations promulgated by the Governor-General-in-Council, on the recommendation
of the Minister of Finance and the Minister of Industry, under the authority of the Financial Administration Act,R.S.C. 1985, c. F-11, s. 23.  Ibid., footnote 25.
16The Letters were prepared and submitted by the Canadian subsidiaries of four automobile
manufacturers to the Canadian Minister of Industry in January 1965 and commit these manufacturers to increasethe amount of Canadian value added used by a specified percentage of each manufacturer's market sharegrowth.  These four companies were:  General Motors of Canada, Ltd., Ford Motors Co. of Canada, Ltd.,Chrysler Canada, Ltd., and American Motors (Canada) Ltd.  Ibid. , paras. 10.92-10.95 and 10.128.WT/DS139/AB/R
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8. The MVTO 1998 has its origins in the Agreement Concerning Automotive Products Between
the Government of Canada and the Government of the United States of America (the "Auto Pact")17,
which was implemented domestically in Canada by the MVTO 1965 and the Tariff Item 950Regulations.  These legal instruments were replaced by the MVTO 1988 and later by the MVTO1998.  The MVTO 1998 is in effect today.
18
9. Under the MVTO 1998, the import duty exempti on is available to manufacturers of motor
vehicles on imports "from any country entitled to the Most-Favoured-Nation Tariff" 19, if the
manufacturer meets the following three conditions:  (1) it must have produced in Canada, during thedesignated "base year", motor vehicles of the class im ported;  (2) the ratio of the net sales value of the
vehicles  produced in Canada  to the net sales value of all vehicles of that class  sold  for consumption
in Canada  in the period of importation must be "equal to or higher than" the ratio in the "base year",
and the ratio shall not in any case be lower than 75:100 (the "ratio requirements");  and (3) the amountof Canadian value added in the manufacturer's local production of motor vehicles must be "equal to or
greater than" the amount of Canadian value added in the local production of motor vehicles of thatclass during the "base year" (the "CVA requirements").
20
                                                     
17See 4 International Legal Materials, p. 302.  The Auto Pact was concluded in 1965.  Under
Article II(a) of the Auto Pact, Canada agreed to accord  an import duty exemption to imports from the United
States of certain products listed in Annex A of the Auto Pact.  In order to receive the import duty exemption, acompany had to meet three conditions set out in paragraph 2(5) of Annex A:  (1) it must have produced inCanada, during the "base year", motor vehicles of the class it was importing;  (2) the ratio of the net sales valueof its production in Canada to the net sales value of motor vehicles of that class sold for consumption in Canada
must have been "equal to or higher than" the ratio du ring the "base year", and could in no case be lower than
75:100;  and (3) the Canadian value added in the company's local production in Canada of motor vehicles musthave been "equal to or greater than" Canadian value adde d in motor vehicles of that class during the "base year".
Pursuant to Article V of the Auto Pact, Canada extended the benefits of this import duty exemption to othercountries, but the United States did not.  Canada also was allowed, under paragraph 3 of Annex A of the Auto
Pact, to designate additional manufacturers as beneficiaries of the import duty exemption, even though the
manufacturers did not meet the Auto Pact conditions.  The Canada-United States Free Trade Agreement (the"CUSFTA"), which entered into force on 1 January 1989, provides, in Article 1001, for the continuedadministration of the Auto Pact.  27 International Legal Materials, p. 281.  However, pursuant to Article 1002.1and the Annex to Article 1002.1 of the CUSFTA, the Government of Canada could no longer designateadditional manufacturers who would benefit from the import duty exemption.  The CUSFTA was suspended
with the 1 January 1994 entry into force of the North American Free Trade Agreement (the "NAFTA"), which,
under Appendix 300-A.1, allows Canada to maintain  the import duty exemption subject to the conditions
stipulated in the CUSFTA.  32 International Legal Materials, p. 605.
18Panel Report, para. 2.15.
19MVTO 1998, Schedule, Part 1, para. 2.  In para. 10.160 of the Panel Report, the Panel recalled "that
Canada applies an MFN duty on motor vehicles originating in non-NAFTA countries at the rate of 6.1 per cent."
20Ibid., para. 1(1), definition of "manufacturer".  A list of beneficiaries of the MVTO 1998 is contained
in the Appendix to Memorandum D-10-16-3, issued by the Ministry of National Revenue on 10 April 1995.This Appendix lists a total of 33 firms, of which four are identified as automobile manufacturers, seven as busmanufacturers, and 27 as manufacturers of specified commercial vehicles.  Panel Report, para. 2.21.WT/DS139/AB/R
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10. The Panel found that, as a matter of fact, the average ratio requirements applicable to the
MVTO 1998 beneficiaries are "as a general rule" 95:100 for automobiles, and "at least" 75:100 forbuses and specified commercial vehicles.
21
11. The MVTO 1998 states that the CVA used by a particular manufacturer shall be calculated
based on the "aggregate" of certain listed co sts of production, which are, broadly speaking:
- the cost of parts produced in Canada and of materials of Canadian origin that are
incorporated in the motor vehicles;
- transportation costs;
- labour costs incurred in Canada;
- manufacturing overhead expenses incurred in Canada;
- general and administrative expenses incurred in Canada that are attributable to the
production of motor vehicles;
- depreciation in respect of machinery and permanent plant equipment located in
Canada that is attributable to the production of motor vehicles;  and
- a capital cost allowance for land and buildings in Canada that are used in the
production of motor vehicles. 22
12. Through the SROs, Canada has also designated certain other companies, in addition to those
qualifying under the MVTO 1998, as eligible to import motor vehicles duty-free.23  Canada
promulgated the  SROs under the authority of the Financial Administration Act for certain companiesthat had not met the original conditions of the MVTO 1965.
24  The SROs entitle motor vehicles
imported by these companies to receive the import duty exemption as long as they meet certaindesignated conditions.  Specifically, the SROs provide for the remission of duties on imports of motorvehicles where conditions relating to certain specified production-to-sales ratio requirements andCVA requirements are fulfilled.
                                                     
21Panel Report, para. 10.182.
22Ibid. , para. 2.26;  MVTO 1998, Schedule, Part 1, pa ra. 1(1), definition of "Canadian value added",
letter (a).
23Auto Pact, para. 3 of Annex A;  Panel Report, para. 2.3.  An administrative memorandum of Revenue
Canada lists 63 firms as beneficiaries under the SROs, of which two are identified as automobile manufacturers,
five as bus manufacturers, and 59 as manufacturers of specified commercial vehicles.  Panel Report, para. 2.31.
24Panel Report, footnote 25.WT/DS139/AB/R
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13. With respect to the actual ratio and CVA requirements under the SROs, each SRO sets out
specific ratio and CVA requirements to be met by the company receiving the SRO.  For ratiorequirements, the SROs issued before 1977 set the production-to-sales ratios at 75:100.  Since then,almost all SROs have set ratios at 100:100.
25  For CVA, requirements under the SROs range from 40
to 60 per cent, as follows:  SROs issued before 1984 stipulate that, during an initial period of one ortwo years, the CVA must be at least 40 per cent of the cost of production.  After that initial period, theCVA should be at least the same (in dollar terms) as in the last 12 months of the initial period;however, the CVA must not, in any case, be less than 40 per cent of the cost of production.  For SROsissued after 1984, the CVA shall be no less than 40 per cent of the cost of sales of vehicles sold in
Canada, with the exception of the manufacturer CAMI Automotive Inc. ("CAMI"), for which the
CVA level is set at 60 per cent.
26
14. In accordance with its obligations under the CUSFTA, since 1989, Canada has not designated
any additional manufacturers to be eligible for the import duty exemption under the MVTO 1998, norhas Canada promulgated any new SROs.  Also, the MVTO 1998 specifically excludes vehiclesimported by a manufacturer which did not qualify before 1 January 1988.
27  Thus, the list of
manufacturers eligible for the import duty exemption is closed.
III. Arguments of the Participants and Third Participants
A. Claims of Error by Canada – Appellant
1. Article I:1 of the GATT 1994
15. Canada argues that the Panel erred in finding that the Canadian measure is inconsistent with
the most-favoured-nation ("MFN") provisions of  Article I:1 of the GATT 1994.  By its terms,
Article I:1 prohibits discrimination in the according of advantages based on the origin of products.  InCanada's view, the Canadian measure at issue is "origin-neutral" 
28 in this sense, and is therefore
consistent with Article I:1.
                                                     
25Panel Report, para. 2.34.
26Ibid. , para. 2.33.
27MVTO 1998, Schedule, Part 1, para. 3.
28Canada's appellant's submission, para. 163.WT/DS139/AB/R
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16. Canada submits that none of the previous panel reports addressing the issue of MFN
treatment under Article I:1 supports the Panel's concept of a  de facto  violation of Article I:1.  The
facts of the present case are different from those in previous cases.  In this case, motor vehiclesimported duty-free into Canada come from numerous countries, and the conditions for receiving theimport duty exemption have nothing to do with the origin of those vehicles.
2. Article 3.1(a) of the  SCM Agreement
(a) Whether the Measure Constitutes a "Subsidy"
17. According to Canada, the Canadian measure does not fall within the definition of "subsidy" in
Article 1.1 of the  SCM Agreement .  Canada argues that the appropriate test for whether the measure
is a "subsidy" is to apply the text of Article 1.1 of the  SCM Agreement,  in its context, and in the light
of the object and purpose of the  WTO Agreement .  With respect to context, the meaning of
Article 1.1(a)(ii) is circumscribed by footnote 1 of the  SCM Agreement .  This footnote demonstrates
that the waiver of import duties for a product will not always be deemed to be a "subsidy".  The keyelement in determining whether a measure is a "subsidy" is that the amount of the duty waived cannotbe in excess of the duty amount accrued.  The Canadian measure is analogous to the situation
described in footnote 1 of the  SCM Agreement .  As there can never be a duty exemption in excess of
the amount of the duty that would have accrued, the duty exemption is not a "subsidy" underArticle 1.1 of the  SCM Agreement .
(b) Whether the Measure is "Contingent…in Law…upon Export
Performance"
18. Canada argues that the measure is not contingent "in law" upon export performance under
Article 3.1(a) of the  SCM Agreement .  The Panel did not even attempt to demonstrate contingency
"on the basis of the words of the relevant legislation".  Rather, the Panel resorted to hypothetical"facts".  By examining these "facts", the Panel shifted its analysis away from contingency "in law" tocontingency "in fact".
19. Canada notes that the Panel found that the import duty exemption is contingent upon
exportation because the exemption is conditional on meeting certain production-to-sales ratios.  ThePanel grouped these ratios into two categories:  ratios below one to one, and ratios of one to one or
higher.  Canada argues that neither of these two categories of ratios results in export contingency "in
fact".WT/DS139/AB/R
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3. Article I:1 and Article II:1 of the GATS
(a) Article I:1 of the GATS
20. According to Canada, the Panel erred in findin g that the scope of the GATS extends to the
measure at issue.  Canada argues that the scope of the GATS is established in Article I of thatAgreement, which states that the Agreement ap plies to "measures…affecting trade in services."
Canada submits that the measure at issue does not affect trade in services.  In this case, Canada
contends, the measure does not affect the supply of distribution services and does not affect wholesale
distribution service suppliers in their capacity as service suppliers.  It is true that the import dutyexemption "may affect"
 29 the cost of the goods.  However, any effect this may have on the supply of
distribution services is so "tenuous"  30 that the measure clearly falls within the category of measures
that should be scrutinized exclusively under the GATT 1994.
(b) Article II:1 of the GATS
21. Canada submits that the complainants have claimed both  de jure  and  de facto
discrimination under Article II:1 of the GATS.  To find for the complainants, the Panel was required
to set out the basis on which the measure accords less favourable treatment to certain services andservice suppliers, and to show how this less favourable treatment is accorded to the like services orservice suppliers of certain Members.  In Canada's view, the Panel's analysis does not demonstrateeither of these.
22. Canada argues that it appears the Panel found discrimination against services and service
suppliers of "any other Member" on the basis that the import duty exemption was granted to  certain
manufacturers of  some   Members, even though the qualification for this treatment was based on
"origin-neutral"
 31 criteria.  This finding is problematic because it implies that unless all manufacturers
of all Members satisfy the criteria applied for eligibility for the import duty exemption, discriminationwill always be found.  Under the Panel's reasoning, there would be discrimination whenever amanufacturer of a Member was not represented among the qualifying service suppliers.  Furthermore,Canada states that the Panel's analysis of Article II:1 ignores the fact that the nationality of themanufacturers/wholesalers can be modifi ed by private commercial decisions.
                                                     
29Canada's appellant's submission, para. 115.
30Ibid.
31Ibid., para. 163.WT/DS139/AB/R
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B. Arguments by the European Communities – Appellee
1. Article I:1 of the GATT 1994
23. In the view of the European Communities, the Panel's interpretation of Article I:1 of the
GATT 1994 is correct.  Although the measure at issue in this case applies to importers and is, on itsface, origin-neutral, the Panel found that, nevertheless, such a measure could accord a  de facto
advantage to products originating in certain countries.
24. The European Communities argues that  de facto  inconsistency with Article I:1 of the
GATT 1994 must be established on a case-by-case basis.  When examining a claim of  de facto
violation, it is necessary to take into account all relevant facts, and infer inconsistency from the total
configuration of the facts.  In this case, the Panel correctly found that the relevant facts establish that
de facto  inconsistency exists.
2. Article 3.1(a) of the  SCM Agreement
(a) Whether the Measure Constitutes a "Subsidy"
25. The European Communities considers that the Pa nel was correct in finding that the measure
constitutes a "subsidy" within the meaning of Article 1.1 of the  SCM Agreement .  Article 1.1(a)(ii)
considers as a "financial contribution" the situation in which government revenue that is "otherwise
due" is foregone.  In this case, the Canadian government established a normative benchmark for itscustoms duties, which constitute government revenue.  The import duty exemption is a departure fromthis norm.  Therefore, the measure constitutes government revenue "otherwise due" that has beenforegone and, consequently, is a "financial contribution".  As the measure also confers a "benefit"under Article 1.1(b), it is a "subsidy".
(b) Whether  the  Measure  is  "Contingent…in  Law…upon  Export
Performance"
26. The European Communities argues that the Pane l correctly concluded that the words of the
relevant legal instruments demonstrate that the production-to-sales ratio requirements make themeasure contingent "in law" upon export performance, in contravention of Article 3.1(a) of theSCM Agreement .  The standard for  de jure  inconsistency encompasses both legal instruments that
provide for  express  export contingency, as well as  implicit  export contingency, that is, where the
requirement to export is a necessary consequence arising from the operation of conditions stated in the
law.  The present case falls into the latter category.WT/DS139/AB/R
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27. In the view of the European Communities, production-to-sales ratio requirements of both one
to one or greater, and of less than one to one, result in export contingency "in law".  Where the ratiorequirements are one to one or greater, the manufacturer concerned cannot sell any value of motorvehicles brought into Canada under the import duty exemption unless it exports an equivalent value.Where the ratio requirements are less than one to one, the European Communities agrees with Canadathat the manufacturer concerned is entitled to sell a certain value of motor vehicles imported under theimport duty exemption without exporting.  However, the European Communities points out that, if themanufacturer does export, the value of imports made under the import duty exemption will increaseby an amount equal to the value of the exports.  Therefore, the measure is contingent "in law" upon
export performance as a result of the ratio requirements, in contravention of Article 3.1(a) of the
SCM Agreement .
3. Article I:1 and Article II:1 of the GATS
(a) Article I:1 of the GATS
28. According to the European Communities, the Panel's finding that the Canadian measure
affects trade in services under Article I of the GATS was correct.  While it is true that the measure in
this case can affect both goods and services, this does not mean that the measure cannot be examined
under the GATS.  The European Communities maintains that the proper test under Article I:1 of theGATS is simply whether the measure at issue affects the supply of services and that the Panel'sexamination of the measure under Article II of the GATS implicitly included an assessment ofwhether the measure affects trade in services under Article I of the GATS.
(b) Article II:1 of the GATS
29. In the view of the European Communities, Article II of the GATS applies to  de facto  as well
as  de jure  discrimination.  When examining a claim of  de facto  discrimination, any inconsistency
must be inferred from the total configuration of the facts surrounding the measure.  In this case, the
Panel properly examined these facts, and these facts support its finding that  de facto  discrimination
exists.
30. The European Communities submits that the Panel correctly found that the Canadian measure
accords less favourable treatment to services and service suppliers of some Members than it accordsto like services and service suppliers of other Members.  The European Communities argues that,contrary to Canada's claim, vertical integration in the automotive industry does not preclude theWT/DS139/AB/R
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Page 11
possibility that competitive conditions for the provision of wholesale trade services would be affected
by the measure.  The Panel's finding that vertical integration did not exclude potential competition inwholesaler-manufacturer relationships nor actual comp etition in wholesaler-retailer relationships was
correct.  This finding is confirmed by the fact that  the vast majority of the service suppliers receiving
the import duty exemption under the measure are from the United States.  Furthermore, eligibility for
the import duty exemption has been closed, since 1989, to any additional service suppliers.
C. Arguments by Japan – Appellee
1. Article I:1 of the GATT 1994
31. Japan maintains that the Panel's finding that the Canadian measure is inconsistent with
Article I:1 of the GATT 1994 was correct.  The Panel interpreted Article I:1 properly through an
analysis of whether the Canadian measure accorded, de facto , less favourable treatment to like
products of certain WTO Members.  The Panel took into account the possibility that the limitation ofthe import duty exemption under the measure to certain importers resulted in  de facto  discrimination.
32. In Japan's view, the facts of this case demonstrate that the measure is an "advantage" under
Article I:1 of the GATT 1994 that is available fo r imports of motor vehicles originating in some
countries, but is not available with respect to imports of like motor vehicles originating in  all  WTO
Members.  This discrimination arises because eligibility for the import duty exemption is restricted toa limited group of manufacturers, as well as because of the intra-firm purchasing practices of the
industry.  Accordingly, the Panel properly concluded that the Canadian measure was inconsistent with
Article I:1 of the GATT 1994.
2. Article 3.1(a) of the  SCM Agreement
(a) Whether the Measure Constitutes a "Subsidy"
33. According to Japan, the Panel correctly found th at the measure constitutes a "subsidy" within
the meaning of Article 1.1 of the  SCM Agreement .  The findings that the measure constitutes a
"financial contribution" because government revenue "otherwise due" has been foregone, and that a
"benefit" also exists, support the Panel's conclusion that a "subsidy" exists.WT/DS139/AB/R
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(b) Whether  the  Measure  is  "Contingent…in  Law…upon  Export
Performance"
34. Japan considers that the measure is contingent "in law" upon export performance under
Article 3.1(a) of the  SCM Agreement .  As a result of the ratio requirements, there is a clear
relationship of conditionality between the import duty exemption and exportation.  Japan argues that
where the ratio requirement is set at one to one or higher, there is a requirement to export in order toreceive the import duty exemption.  The only "economically viable" 
32 way for a manufacturer to
comply with the ratio requ irements when it imports motor vehicles is to export vehicles that it has
produced in Canada.  Where the ratio requirement is less than one to one, the requirement to exportalso arises, even though, Japan concedes, the "pressure" to export is of a "lesser degree" 
33 in this
situation.  Japan has provided mathematical expressions of these arguments.
35. According to Japan, the Panel's finding that the ratio requirements, as a condition for
receiving the import duty exemption, are contingent "in law" upon export performance was correct,
since contingency can be established based on the words of the relevant legal instruments.  Those
instruments create a "construct" 34 under which the import duty exemption under the measure is
contingent upon export performance.  Therefore, the measure is contingent "in law" upon exportperformance under Article 3.1(a) of the  SCM Agreement .
3. Article I:1 and Article II:1 of the GATS
(a) Article I:1 of the GATS
36. In Japan's view, the Panel's approach in determining whether the application of the measure
affects trade in services within the meaning of Article I of the GATS is correct.  The Panel did not errin its substantive finding that the measure affects trade in services under Article I of the GATS.  Theterm "affecting" in Article I has a broad reach.  The measure affects trade in services, as it has aneffect on the "cost and/or profitability"
 35 of the related wholesale trade services.
(b) Article II:1 of the GATS
37. Japan argues that the measure is inconsistent with the MFN obligation in Article II of the
GATS.  The Panel's finding in this regard is correc t.  The Panel relied, in part, on the fact that the
measure put some service providers at an economic or competitive disadvantage.  The Panel
                                                     
32Japan's appellee's submission, para. 71.
33Ibid., para. 73.
34Ibid., para. 85.
35Ibid. , para. 113.WT/DS139/AB/R
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recognized that two elements of the provision of wholesale services must be examined:  wholesale
services provided to manufacturers, and wholesale services provided to retailers.  In Japan's view, thePanel made the correct finding under Article II of the GATS, that the import duty exemption is onlyavailable to certain wholesale service suppliers, and is therefore not made available to like servicesuppliers of all WTO Members.
D. Claims of Error by the European Communities – Appellant
1. Article 3.1(a) of the  SCM Agreement  – European Communities' Claim
Regarding CVA Requirements
38. According to the European Communities, the Panel failed to address the European
Communities' claim that the CVA requirements operate as an export performance conditionprohibited by Article 3.1(a) of the  SCM Agreement .  The European Communities claimed before the
Panel that the CVA requirements make the subsidy contingent "in law" and, alternatively, "in fact"upon the use of domestic over imported goods or, as the sole alternative, upon export performance.
36
Therefore, the CVA requirements are inconsistent with the prohibition of Article 3.1(a).  The Panel'sfailure to address the alternative condition of export performance was an error.  The EuropeanCommunities requests the Appellate Body to find that certain of the CVA requirements are contingentupon export performance.
2. Article 3.1(b) of the  SCM Agreement
(a) Whether the Measure is Contingent "in Law" upon the Use of
Domestic over Imported Goods
39. The European Communities argues that Article 3.1(b) of the  SCM Agreement  prohibits
subsidies contingent upon a condition that "gives preference" 37 to the use of domestic over imported
goods.  The Panel's narrow finding that Article 3.1(b) only prohibits the granting of subsidies that"require" the beneficiary to "actually use" domestic goods constitutes legal error.
38  In the European
Communities' view, the Panel's interpretation would allow circumvention of Article 3.1(b).
Furthermore, even applying the test used by the Panel, the CVA requirements do in certain
circumstances require the actual use of domestic goods as a matter of law.  Therefore, the Panel'sfinding is in error.
                                                     
36The claims can be found in the Panel Report, at paras. 6.497-6.500, 6.620 and 6.690.
37European Communities' appellant's submission, para. 23.
38Ibid. , para. 28.WT/DS139/AB/R
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40. The European Communities notes that Article 3.1(b) prohibits the granting of subsidies that
are contingent upon the use of domestic over imported goods "whether solely or as one of severalconditions".  These terms cover the situation where a subsidy is simultaneously subject to two or more"cumulative conditions".  However, the European Communities argues that these terms may alsoapply where a subsidy is subject to two or more "alternative" conditions, where compliance with anyone or more of them gives a right to obtain the subsidy.
39  According to the European Communities,
the use of domestic over imported goods through the CVA requirements is an alternative condition forreceiving the import duty exemption under the measure.  This alternative condition is a condition "inlaw" for receiving the import duty exemption, and is, therefore, inconsistent with Article 3.1(b) of the
SCM Agreement .
(b) Whether the Measure is Contingent "in Fact" upon the Use of
Domestic over Imported Goods
41. In the alternative, the European Communities ar gues that the CVA requirements constitute a
subsidy contingent "in fact" upon the use of domestic over imported goods.  In making this claim, the
European Communities contends that the Panel's finding that Article 3.1(b) does not apply to "in fact"contingency is erroneous.
42. In the European Communities' view, the Panel's finding was in error as it relied solely on one
aspect of the context of Article 3.1(b), while ignoring the ordinary meaning, other contextual aspects,the object and purpose, and the drafting history of the provision.  The ordinary meaning ofArticle 3.1(b) does not exclude contingency "in fact".  Also, it is relevant as context that Article 3.1(b)
was inserted into the  SCM Agreement  to clarify and reinforce existing GATT 1994 disciplines with
respect to local content requirements.  Furthermore, the object and purpose of Article 3.1(b) is to
prevent the use of subsidies which promote the substitution of domestic for imported goods.  If thePanel's interpretation were followed, the prohibitions in Article 3.1(b) could be circumvented.
E. Claims of Error by Japan – Appellant
1. Article 3.1(a) of the  SCM Agreement
(a) Whether  the  Measure  is  "Contingent…in  Law…upon  Export
Performance"
43. Japan conditionally appeals the Panel's decision not to make a finding with respect to whether
the measure is "in fact" contingent upon export performance in contravention of Article 3.1(a) of theSCM Agreement .  In the event the Appellate Body overturns the Panel's finding that the subsidy is
                                                     
39European Communities' appellant's submission, para. 44.WT/DS139/AB/R
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contingent "in law" upon export performance, Japan submits that the Panel's use of judicial economy
was in error, and the issue of whether the subsidy is contingent "in fact" upon export performanceshould be considered by the Appellate Body.
44. According to Japan, the Panel made certain findings relevant to the issue of whether the
import duty exemption is contingent "in fact" upon e xport performance.  The Panel's examination of
the ratio requirements demonstrates that the "facts" of those requirements lead to the conclusion thatthe import duty exemption is contingent upon export performance.
2. Article 3.1(b) of the  SCM Agreement
(a) Whether the Measure is Contingent "in Law" upon the Use of
Domestic over Imported Goods
45. Japan argues that the measure is contingent "in law" upon the use of domestic over imported
goods, in contravention of Article 3.1(b) of the  SCM Agreement .  The plain language of this
provision demonstrates that a "key component" of the applicable legal standard is whether the use of
domestic over imported goods "would lead to" the granting or maintenance of a subsidy.40  T h i s
interpretation is supported by the object and purpose of the  SCM Agreement  as a whole and of
Article 3.1(b) in particular.
46. Japan submits that, in this case, the use of CVA is one of several conditions that, if fulfilled,
results in the receipt of the import duty exemption.  One way to meet the CVA requirements is to usedomestic parts and materials.  According to Japan, it has  not  been demonstrated that the CVA
requirements can be met without using domestic parts and materials.  The Panel has referred to thehypothetical  possibility to do so, but Canada has not provided sufficient evidence to rebut the fact
that the CVA requirements mandate the use of domestic parts and materials.  The Panel's finding that
a subsidy is not contingent on the use of domestic over imported goods if it can be obtained throughother means, although the use of domestic over imported goods is one way actually to obtain thesubsidy, is problematic.  If this finding is upheld, it will be possible for WTO Members to escape theirArticle 3.1(b) obligations by including additional conditions that are unrelated to the use of domesticover imported goods.
                                                     
40Japan's appellant's submission, para. 7.WT/DS139/AB/R
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(b) Whether the Measure is Contingent "in Fact" upon the Use of
Domestic over Imported Goods
47. Japan argues that Article 3.1(b) of the  SCM Agreement   prohibits both subsidies contingent
"in law" and subsidies contingent "in fact" upon the use of domestic over imported goods.  The
Panel's finding restricting the scope of application of Article 3.1(b) to subsidies contingent "in law"
was erroneous.  The Panel found that the inclusion of the words "in law or in fact" in paragraph (a) ofArticle 3.1 of the  SCM Agreement  and the absence of the same words in paragraph (b) of the same
Article means that the drafters of Article 3.1(b) intended to limit that provision to contingency "in
law".  In Japan's view, the Panel's reasoning ignores the ordinary meaning of the words ofArticle 3.1(b).  Article 3.1(b) prohibits subsidies "contingent … upon the use of domestic overimported goods."  These words do not expressly limit the scope of coverage of Article 3.1(b) tocontingency "in law".  In the absence of an expr ess limitation, Article 3.1(b) must be interpreted to
apply to both contingency "in law" and "in fact".  The inclusion of the words "in law or in fact" in
Article 3.1(a) is most likely intended to "anchor"
 41 footnote 4 of the  SCM Agreement , which sets
forth an explanation of subsidies contingent "in fact" upon export performance.  In addition, thePanel's finding that Article 3.1(b) prohibits only subsidies contingent "in law" upon the use ofdomestic over imported goods does not take into account the object and purpose of theWTO Agreement  as a whole and of Article 3.1(b) of the  SCM Agreement .
48. According to Japan, when determining whether a subsidy is contingent "in fact" upon the use
of domestic over imported goods, the issue is whether the configuration of the facts surrounding thegranting of the subsidy is such that, "in fact", the subsidy will be granted if the recipient used
domestic over imported goods.  In the case of the measure at issue here, the relevant facts establish
that it is impossible for manufacturers to satisfy the CVA requirements without purchasing at least acertain proportion of Canadian parts and components.
F. Arguments by Canada – Appellee
1. Article 3.1(a) of the  SCM Agreement
(a) Whether  the  Measure  is  "Contingent…in  Fact…upon  Export
Performance"
49. According to Canada, the Panel correctly applied the principle of judicial economy when it
declined to examine whether the measure was contingent "in fact" upon export performance underArticle 3.1(a) of the  SCM Agreement .  Since the Panel found that contingency "in law" existed, the
                                                     
41Japan's appellant's submission, para. 29.WT/DS139/AB/R
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Panel was entitled to stop its analysis there.  This is a legitimate application of judicial economy,
which Canada's appeal does not change.  However, if the Appellate Body agrees with Canada'scontention on the issue of contingency "in law", the question of whether the measure is contingent "infact" upon export performance will become an issue.
50. With regard to the substance of Japan's appeal, Canada relies on the arguments made in its
appellant's submission on this issue.  In that submission, Canada argued that there is no evidence todemonstrate that the measure is "in fact" contingent upon export performance.
42
(b) European Communities' Clai m Regarding CVA Requirements
51. Canada refers to the argument of the European Communities that the CVA requirements, as a
condition for receiving the import duty exemption, are, in the alternative, contingent upon exportation.Canada contends that the European Communities has not identified any error of law in the Panel'sdecision not to make a finding on this issue.  Furthermore, the CVA requirements do not result in asubsidy which is contingent upon export performance, either "in law" or "in fact".  Nothing in the textof the measure suggests that the measure is contingent upon export performance, nor is there anyfactual evidence to show that the granting of the subsidy was in any way tied to exportation, in
contravention of Article 3.1(a) of the  SCM Agreement .
2. Article 3.1(b) of the  SCM Agreement
(a) Whether the Measure is Contingent "in Law" upon the Use of
Domestic over Imported Goods
52. In Canada's view, the Panel was correct in finding that the measure is not contingent "in law"
upon the use of domestic over imported goods under Article 3.1(b) of the  SCM Agreement .  The
Panel's interpretation of the word "contingent" was appropriate.  By contrast, the EuropeanCommunities and Japan seek to expand the scope of this term beyond its ordinary meaning.  Bothcomplainants argue that Article 3.1(b) of the  SCM Agreement   prohibits any condition that "favours",
or gives "preference" to, the use of domestic goods.  Canada responds that there is no basis for suchan interpretation in the text of Article 3.1(b).
53. Canada submits that the argument by the complainants that Article 3.1(b) prohibits subsidies
that may be received if one of several alternative conditions is fulfilled is without merit.  In Canada's
view, the complainant's position is at odds with the ordinary meaning of "contingent".  If the use of
domestic over imported goods were one of several alternative conditions for receiving a subsidy, that
                                                     
42Supra,  para. 19.WT/DS139/AB/R
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subsidy would, by definition, not be "contingent" upon the use of domestic over imported goods,
since it could be received without using domestic over imported goods.
(b) Whether the Measure is Contingent "in Fact" upon the Use of
Domestic over Imported Goods
54. Canada considers, moreover, that Article 3.1(b) does not extend to measures that are "in fact"
contingent upon the use of domestic over imported goods.  The Panel's finding on this issue wascorrect.  In Canada's view, the context provided by  Article 3.1(a) is determinative.  As the words "in
law or in fact" are included in Article 3.1(a), the fact that they are not found in Article 3.1(b) indicatesthat Article 3.1(b) does not apply to contingency "in fact".
55. In any event, Canada argues, Japan and the European Communities have failed to establish
that the measure is contingent "in fact" upon the use of domestic over imported goods.  As evidenceprovided by Canada to the Panel demonstrates, it is not impossible to meet the CVA requirementswithout using Canadian goods.
G. Third Participants
1. Korea
(a) Article I:1 of the GATT 1994
56. Korea argues that the Canadian measure is inconsistent with Article I:1 of the GATT 1994
because it discriminates with respect to the treatmen t of like products of different origins.  Although
the measure does not, on its face, impose conditions relating to the origin of the products at issue, in
practice the import duty exemption has not been acco rded to like products originating in all WTO
Members.  In Korea's view, the Panel properly found that the limitation on eligibility for the importduty exemption to certain importers, in combination with the "intra-firm" character of trade inautomotive products, results in  de facto  discrimination against like products from certain WTO
Members.
(b) Article 3.1(a) of the SCM Agreement
(i) Whether the Measure Constitutes a "Subsidy"
57. According to Korea, the measure is a "subsidy " within the meaning of Article 1.1 of the
SCM Agreement .  Customs duties constitute government revenue, and the act of exempting payment
of customs duties is an exception to the normal rules.  Accordingly, the measure results in governmentWT/DS139/AB/R
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revenue foregone which is "otherwise due", under Article 1.1(a)(1)(ii).  Since a benefit is conferred as
a result, the measure is a "subsidy" within the meaning of Article 1.1 of the  SCM Agreement .
(ii) Whether the Measure is "Contingent…in Law…upon Export
Performance"
58. Korea contends that, as found by the Panel, the measure is contingent "in law" upon export
performance within the meaning of Article 3.1(a) of the  SCM Agreement  as a result of the operation
of the ratio requirements.  The Panel was correct in its finding that the import duty exemption iscontingent upon export performance, regardless of the specific ratio requirements.  When the ratiorequirements are 100:100 or higher, the import duty exemption cannot be received unless thecompany exports.  When the ratio requirements are less than 100:100, the value of the imports whichcan be made under the measure is still directly contingent upon the value of exports.  This conclusionresults from the words of the relevant legal instruments themselves.  Therefore, the measure iscontingent "in law" upon export performance, under Article 3.1(a) of the  SCM Agreement .
(c) Article 3.1(b) of the  SCM Agreement
59. In Korea's view, the Panel erred in its conclusion that the measure does not constitute a
subsidy that is contingent "in law" upon the use of domestic over imported goods under the terms ofArticle 3.1(b) of the  SCM Agreement , as a result of the operation of the CVA requirements.  The
CVA requirements are one of several conditions for receiving the import duty exemption.  The CVArequirements themselves may be satisfied by the use of Canadian goods, Canadian inputs other thangoods, or some combination of the two.  Since the use of Canadian goods is one of the means bywhich to meet the CVA requirements, the measure is contingent "in law" upon the use of domestic
over imported goods, within the meaning of Article 3.1(b) of the  SCM Agreement .
(d) Article I:1 and Article II:1 of the GATS
(i) Article I:1 of the GATS
60. Korea argues that, under Article I of the GATS, the scope of the GATS extends to the
Canadian measure.  The term "affecting" in Article I:1 of the GATS has a broad reach.  In this case,although the measure does not directly govern the supply of services, it nevertheless modifiesconditions of competition in the supply of wholesale trade services.  It therefore falls within the scope
of the GATS.WT/DS139/AB/R
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(ii) Article II:1 of the GATS
61. Korea submits that the Panel was correct in finding that the measure is inconsistent with
Article II:1 of the GATS because it does not accord treatment no less favourable to like services andservice suppliers of other WTO Members.  Through its effect on the conditions of competition, themeasure results in  de facto  discrimination based on the origin of the service or service supplier.  In
fact, the closed category of service suppliers is comprised almost exclusively of service suppliers of
the United States and Canada.  As a result, some motor vehicle service suppliers of some Members
can receive the import duty exemption, while those of other Members cannot, and, consequently,service suppliers of certain Members receive less favourable treatment than service suppliers of otherMembers.
2. United States
62. In its submission, the United States notes that it "has a strong interest in the systemic
implications of the issues presented in this appeal."  43  However, the United States does not make
specific arguments on the substantive issues involved.  As a result, no arguments made by the United
States are summarized in this Section of the Report.
IV. Issues Raised in this Appeal
63. This appeal raises the following issues:
(a) whether the Panel erred in concluding that Canada acts inconsistently with Article I:1
of the GATT 1994 by according the advantage of duty-free treatment to motorvehicles originating in certain countries, pursuant to the MVTO 1998 and the SROs,which advantage is not accorded immediately and unconditionally to like products
originating in the territories of all other WTO Members;
(b) whether the Panel erred in concluding that Canada acts inconsistently with its
obligations under Article 3.1(a) of the  SCM Agreement   by granting a subsidy which
is contingent in law upon export performance, as a result of the application of the ratiorequirements as one of the conditions determining eligibility for the import dutyexemption for motor vehicles under the MVTO 1998 and the SROs;
                                                     
43United States' appellant's submission, p.1.WT/DS139/AB/R
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(c) whether the Panel erred in failing to ad dress the European Communities' alternative
claim that  the import duty exemption, as a result of the application of the CVArequirements as one of the conditions for the import duty exemption, is a subsidycontingent upon export performance within the meaning of Article 3.1(a) of theSCM Agreement ;
(d) whether the Panel erred in concluding that the European Communities and Japan have
failed to demonstrate that Canada acts inconsistently with its obligations underArticle 3.1(b) of the  SCM Agreement   by granting a subsidy which is contingent upon
the use of domestic over imported goods, as a result of the application of the CVA
requirements as one of the conditions determining eligibility for the import duty
exemption for motor vehicles under the MVTO 1998 and the SROs;  and
(e) whether the Panel erred in its interpretativ e approach with respect to Article I of the
GATS;  and in concluding that Canada acts inconsistently with Article II of the GATSby failing to accord immediately and unconditionally to services and service suppliersof any other Member treatment no less favourable than that it accords to like servicesand service suppliers of any other country, with respect to the granting of the importduty exemption to a limited number of manufacturers/wholesalers of motor vehiclespursuant to the MVTO 1998 and the SROs.
V. Article I:1 of the GATT 1994
64. Canada appeals the Panel's conclusion that Canada acts inconsistently with Article I:1 of the
GATT 1994 by according the advantage of duty-free treatment to motor vehicles originating in certaincountries, pursuant to the MVTO 1998 and the SROs, without according that advantage immediatelyand unconditionally to like motor vehicles originating in the territories of all other WTO Members.
44
65. Canada argues that the Panel erred in the way it applied Article I:1 to the measure.  In
Canada's view, the Panel "simply determined that Article I:1 of the GATT 1994 contemplatedde facto  discrimination and proceeded to consider several factors without providing any legal
justification for the scope of its inquiry."
 45  These factors included, for Canada, irrelevant empirical
data about the market for motor vehicles and the historical aspects of the measure.46  Instead, Canada
                                                     
44Canada's appellant's submission, paras. 1-2.
45Ibid., para. 20.
46Ibid., para. 21.WT/DS139/AB/R
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considers that the Panel should have based its inquiry on a proper interpretation of the language of
Article I:1, and on WTO law and practice.47
66. As Canada sees it, Article I:1 does not prohibit the imposition of "origin-neutral terms and
conditions on importation that apply to  companies  as opposed to the  products they import. "  Canada
contends that terms are origin-neutral if they " do not impose limitations with respect to the origin of
products that may be imported by those companies."  48  To find otherwise, asserts Canada, would be to
hold governments responsible for the sourcing decisions of private commercial entities, and therebybase state-to-state obligations on "ephemeral conditions" outside government control.
49  The level and
proportion of trade in motor vehicles from particular foreign sources resulting from the measure, in
the view of Canada, is irrelevant for the purposes of Article I:1.50
67. The Panel's conclusion that the measure is inconsistent with Article I:1 of the GATT 1994
was based on two main elements.  First, the Panel noted that Article I:1 applies to  de facto
discrimination, and can include measures that limit the benefit of the import duty exemption to certainimporters only.
51  Second, the Panel recognized, as a finding of fact, the "predominantly, if not
exclusively, 'intra-firm' character" of trade in automotive products in Canada.52  The Panel then
reasoned that:
…in a context of intra-firm trade, the limitation of the availability of
the import duty exemption to certain manufacturers, including fully-owned subsidiaries of firms based in a very limited number of third
countries, discriminates as to the origin of products which will benefit
from the import duty exemption.
53
The Panel concluded that this discrimination is inconsistent with Article I:1 of the GATT  1994.54
                                                     
47Canada's appellant's submission, para. 23.
48Ibid., para. 27.
49Ibid., paras. 38 and 51.
50Ibid., paras. 31-32.
51Panel Report, paras. 10.38 and 10.40.
52Ibid. , para. 10.42.
53Ibid. , para. 10.45.
54Ibid. , para. 10.50.WT/DS139/AB/R
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68. In support of this finding, the Panel examined the total number and proportions of motor
vehicles imported into Canada from various countries, and deduced that these statistics did "notwarrant a conclusion that the import duty exemption is accorded on equal terms to like products ofdifferent origin."
 55  The Panel also examined the historical context of the measure.  The Panel found
that the import duty exemption:
…stems from a bilateral agreement between Canada and the United
States designed to resolve a long-standing trade dispute between
Canada and the United States over trade in automotive products.  This
agreement was designed  inter alia  to achieve rationalization of
production in the North-American market.  From the perspective ofCanada this involved the granting of import duty exemptions as an
encouragement to US owned motor vehicle manufacturers to expand
their production operations in Canada.  We therefore consider that at
the outset the import duty exemption was expected to benefit mainly
imports from particular sources.
 56
69. On appeal, the issue before us is whether the import duty exemption accorded by this measure
is consistent with Canada's obligations under Article I:1 of the GATT 1994.  We are confronted withthe daunting task of interpreting certain aspects of the "most-favoured-nation" ("MFN") principle that
has long been a cornerstone of the GATT and is one of the pillars of the WTO trading system.
70. In examining the measure in issue, we note th at the import duty exemption is afforded by
Canada to imports of some, but not all, motor vehicles.  We observe, first of all, that the CanadianCustoms Tariff provides that a motor vehicle normally enters Canada at an MFN tariff rate of6.1 per cent.
57  This is also the bound  ad valorem  rate in Canada's WTO Schedule of Concessions.58
The MVTO 1998 and the SROs modify this rate by providing the import duty exemption for motor
vehicles imported by certain manufacturers meeting certain ratio requirements and CVArequirements.
59  The MVTO 1998 accords the import duty exemption in the form of a "reduced rate of
customs duty", established in the amended Canadian Customs Tariff as "free".60  The SROs accord the
import duty exemption in the form of a full duty "remission".61
                                                     
55Panel Report, para. 10.48.
56Ibid. , para. 10.49.
57Supra , footnote 19.
58Schedule V of Canada, Chapter 87, Final Act Embodying the Results of the Uruguay Round of
Multilateral Trade Negotiations , done at Marrakesh, 15 April 1994.
59The operation of the import duty exemption is explained in paras. 7-14 of this Report.
60MVTO 1998, Parts 1 and 2.
61See, e.g., CAMI Automotive Inc. Remission Order, SI/89-26, para. 3.WT/DS139/AB/R
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71. Although the measure on its face imposes no formal restriction on the  origin  of the imported
motor vehicle, the Panel found that, in practice, major automotive firms in Canada import only theirown make of motor vehicle and those of related companies.
62  Thus, according to the Panel,
…General Motors in Canada imports only GM motor vehicles and
those of its affiliates; Ford in Canada imports only Ford motor
vehicles and those of its affiliates; the same is true of Chrysler and ofVolvo.  These four companies all have qualified as beneficiaries of the
import duty exemption.  In contrast, other motor vehicle companies in
Canada, such as Toyota, Nissan, Honda, Mazda, Subaru, Hyundai,
Volkswagen and BMW, all of which also import motor vehicles only
from related companies, do not benefit from the import dutyexemption.
63
72. Therefore, the Panel considered that, in practice, a motor vehicle imported into Canada is
granted the "advantage" of the import duty exemption only if it originates in one of a small number ofcountries in which an exporter of motor vehicles is affiliated with a manufacturer/importer in Canadathat has been designated as eligible to impor t motor vehicles duty-free under the MVTO 1998 or
under an SRO.
73. Since 1989, no manufacturer not already benefiting from the import duty exemption on motor
vehicles has been able to qualify under the MVTO 1998
64 or under an SRO.  The list of manufacturers
eligible for the import duty exemption was closed by Canada in 1989 in fulfilment of Canada'sobligations under the CUSFTA.
65
74. Thus, in sum, while the Canadian Customs Tariff normally allows a motor vehicle to enter
Canada at the MFN duty rate of 6.1 per cent, the same motor vehicle has the "advantage" of enteringCanada duty-free when imported by a designated manufacturer under the MVTO 1998 or under theSROs.
66
75. In determining whether this measure is consistent with Article I:1 of the GATT 1994, we
begin our analysis, as always, by examining the words of the treaty.  Article I:1 states, in pertinentpart:
                                                     
62Panel Report, para. 10.43.
63Ibid.
64MVTO 1998, Schedule, Part 1, para. 3.
65Supra , footnote 17 and para. 14.
66Assuming, as above, that that country benefits from Canada's MFN rate.WT/DS139/AB/R
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With respect to customs duties and charges of any kind imposed on or
in connection with importation or exportation… any advantage,
favour, privilege or immunity granted by any Member to  any  product
originating in or destined for any other country shall be accordedimmediately and unconditionally  to the  like product  originating in or
destined for the territories of  all other Members .  (emphasis added)
76. The applicability of certain elements of Article I: 1 is not in dispute in this case.  First, the
parties do not dispute that the import duty exemption is an "advantage, favour, privilege or immunitygranted by any Member to any product".
67  Second, it is not disputed that some, but not all, motor
vehicles imported from certain Members are accor ded the import duty exemption, while some, but not
all, like motor vehicles imported from certain other Members are not.68  Third, the Panel's
interpretation that the term "unconditionally" refers to advantages conditioned on the "situation or
conduct" of exporting countries has not been appealed.69
77. One main issue remains in dispute:  has the import duty exemption, accorded by the measure
to motor vehicles originating in some countries, in which affiliates of certain designatedmanufacturers under the measure are present, also been accorded to like motor vehicles from all otherMembers, in accordance with Article I:1 of the GATT 1994?
78. In approaching this question, we observe first that the words of Article I:1 do not restrict its
scope only to cases in which the failure to accord an "advantage" to like products of all otherMembers appears  on the face  of the measure, or can be demonstrated on the basis of the words of the
measure.  Neither the words " de jure " nor " de facto " appear in Article I:1.  Nevertheless, we observe
that Article I:1 does not cover only "in law", or  de jure , discrimination.  As several GATT panel
reports confirmed, Article I:1 covers also "in fact", or  de facto , discrimination.
 70  Like the Panel, we
                                                     
67Panel Report, para. 10.16.
68Ibid. , paras. 10.32-10.33 and 10.36.
69Ibid., para. 10.23.
70We note, though, that the measures examined in those reports differed from the measure in this case.
Two of those reports dealt with "like" product issues:  panel report, Spain – Tariff Treatment of Unroasted
Coffee , L/5135, adopted 11 June 1981, BISD 28S/102;  panel report, Canada/Japan – Tariff on Imports of
Spruce, Pine, Fir (SPF) Dimension Lumber , L/6470, adopted 19 July 1989, BISD 36S/167.  In this case, as we
have noted, there is no dispute that the motor vehicles subject to the import duty exemption are "like" products.Furthermore, two other reports dealt with measures which, on their face, discriminated on a strict "origin" basis,so that, at any given time, either  every  product, or  no  product, of a particular origin was accorded an
advantage.  See panel report, Belgian Family Allowances , G/32, adopted 7 November 1952, BISD 1S/59;  panel
report,  European Economic Community – Imports of Beef from Canada , L/5099, adopted 10 March 1981,
BISD 28S/92.  In this case, motor vehicles imported into Canada are not disadvantaged in that same sense.WT/DS139/AB/R
WT/DS142/AB/R
Page 26
cannot accept Canada's argument that Article I:1 does not apply to measures which, on their face, are
"origin-neutral".71
79. We note next that Article I:1 requires that " any advantage , favour, privilege or immunity
granted by any Member to  any product   originating in or destined for any other country shall be
accorded immediately and unconditionally to the like product originating in or destined for theterritories of  all other Members ." (emphasis added)  The words of Article I:1 refer not to  some
advantages granted "with respect to" the subjects that fall within the defined scope of the Article, butto "any advantage ";  not to  some  products, but to " any product ";  and not to like products from
some  other Members, but to like products originating in or destined for " all other
 " Members.
80. We note also the Panel's conclusion that, in practice, a motor vehicle imported into Canada is
granted the "advantage" of the import duty exemption only if it originates in one of a small number ofcountries in which an exporter of motor vehicles is affiliated with a manufacturer/importer in Canadathat has been designated as eligible to impor t motor vehicles duty-free under the MVTO 1998 or
under an SRO.
81. Thus, from both the text of the measure and the Panel's conclusions about the practical
operation of the measure, it is apparent to us that "[w]ith respect to customs duties…imposed on or inconnection with importation…," Canada has granted an "advantage" to some products from someMembers that Canada has not "accorded immediately and unconditionally" to "like" products
"originating in or destined for the territories of  all other Members ." (emphasis added)  And this, we
conclude, is not consistent with Canada's ob ligations under Article I:1 of the GATT 1994.
82. The context of Article I:1 within the GATT 1994 supports this conclusion.  Apart from
Article I:1, several "MFN-type" clauses dealing with varied matters are contained in theGATT 1994.
72  The very existence of these other clauses demonstrates the pervasive character of the
MFN principle of non-discrimination.
83. The drafters also wrote various exceptions to the MFN principle into the GATT 1947 which
remain in the GATT 1994.73  Canada invoked one such exception before the Panel, relating to
                                                     
71Panel Report, para. 10.40.
72These relate to such matters as internal mixing requirements (Article III:7);  cinema films
(Article IV(b));  transit of goods (Article V:2, 5, 6);  marks of origin (Article IX:1);  quantitative restrictions
(Article XIII:1);  measures to assist economic development (Article XVIII:20);  and measures for goods in short
supply (Article XX(j)).
73Such as in Articles XX (general exceptions), XXI  (security exceptions) and XXIV (customs unions
and free trade areas).WT/DS139/AB/R
WT/DS142/AB/R
Page 27
customs unions and free trade areas under Article XXIV.  This justification was rejected by the Panel,
and the Panel's findings on Article XXIV were not appealed by Canada.  Canada has invoked no other
provision of the GATT 1994, or of any other covered agreement, that would justify the inconsistencyof the import duty exemption with Article I:1 of the GATT 1994.
84. The object and purpose of Article I:1 supports our interpretation.  That object and purpose is
to prohibit discrimination among like products originating in or destined for different countries.  Theprohibition of discrimination in Article I:1 also serves as an incentive for concessions, negotiatedreciprocally, to be extended to all other Members on an MFN basis.
85. The measure maintained by Canada accords the import duty exemption to certain motor
vehicles entering Canada from certain countries.  These privileged motor vehicles are imported by a
limited number of designated manufacturers who are required to meet certain performance conditions.In practice, this measure does not accord the same import duty exemption immediately andunconditionally to like motor vehicles of  all  other Members, as required under Article I:1 of the
GATT 1994.  The advantage of the import duty exemption is accorded to some motor vehiclesoriginating in certain countries without being accorded to like motor vehicles from  all  other
Members.  Accordingly, we find that this measure is not consistent with Canada's obligations underArticle I:1 of the GATT 1994.
86. We, therefore, uphold the Panel's conclusion that Canada acts inconsistently with Article I:1
of the GATT 1994 by according the advantage of the import duty exemption to motor vehicles
originating in certain countries, pursuant to the MVTO 1998 and the SROs, which advantage is notaccorded immediately and unconditionally to like products originating in the territories of all otherWTO Members.
VI. Article 3.1(a) of the  SCM Agreement
A. Whether the Measure Constitutes a "Subsidy"
87. Canada appeals the Panel's finding that the measure is a "subsidy" within the meaning of
Article 1.1 of the  SCM Agreement .
74  For Canada, the measure does not, in the language of
Article 1.1, forego "government revenue that is otherwise due".75  Canada argues that the import duty
exemption at issue here cannot be equated mechanically  with a tax exemption, such as the one at issue
                                                     
74Canada's appellant's submission, para. 57.
75Ibid., para. 60.WT/DS139/AB/R
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Page 28
in  United States – Tax Treatment for "Foreign Sales Corporations" ("United States – FSC ").76  For
Canada, the import duty exemption should be considered a "subsidy" only if it provides an exemptionfrom duties  in excess  of those that would have "accrued".
77  Canada maintains, as well, that most
motor vehicles benefiting from the import duty exemption could have been imported into Canadaduty-free under the NAFTA.
78
88. The Panel found that the measure results, within the terms of Article 1.1 of the  SCM
Agreement , in "government revenue" foregone that is "otherwise due", and therefore constitutes a
"financial contribution".79  For the Panel, Canada's argument that "if an import duty exemption were
necessarily treated as revenue foregone, a subsidy would exist every time generalised preferences or
duty drawbacks were granted by a WTO Member"  80 is inapposite.  The Panel stated that "these
examples advanced by Canada involve factual and legal considerations distinct from those in the caseat hand".
81  In addition, the Panel found that a "benefit" is conferred by this "financial contribution".82
The Panel therefore concluded that there is a "subsidy" within the meaning of Article 1.1.
89. In considering this conclusion on appeal, we look first at the wording of Article 1.1 of the
SCM Agreement , which states,  inter alia ,  that a "subsidy" exists if "there is a financial contribution
by a government… and a benefit is thereby conferred".  A "financial contribution" is deemed to exist,inter alia , where "government revenue that is  otherwise due   is foregone or not collected".
83
(emphasis added)
90. It is not in dispute that import duties are "government revenue", and that the import duty
exemption afforded by this measure confers a "benefit" upon its recipients under Article 1.1(b) of theSCM Agreement .  What is in dispute is whether "government revenue that is otherwise due is
foregone " in the sense of Article 1.1(a)(1)(ii) of the  SCM Agreement .  In  United States – FSC , we
said the following about the United States tax measure at issue there:
                                                     
76Appellate Body Report, WT/DS108/AB/R, adopted 20 March 2000;  Canada's appellant's submission,
para. 69.
77Canada's appellant's submission, para. 72.
78Ibid., para. 73.
79Panel Report, para. 10.163.
80Ibid., para. 10.162.
81Ibid.
82Ibid., para. 10.165.
83Article 1.1(a)(1)(ii) of the  SCM Agreement.WT/DS139/AB/R
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Page 29
In our view, the " foregoing " of revenue " otherwise  due" implies that
less revenue has been raised by the government than would have been
raised in a different situation, or, that is, "otherwise".  Moreover, the
word "foregone" suggests that the government has given up anentitlement to raise revenue that it could "otherwise" have raised.
This cannot, however, be an entitlement in the abstract, because
governments, in theory, could tax  all  revenues.  There must,
therefore, be some defined, normative benchmark against which a
comparison can be made between the revenue actually raised and the
revenue that would have been raised "otherwise".  We, therefore,
agree with the Panel that the term "otherwise due" implies some kindof comparison between the revenues due under the contested measure
and revenues that would be due in some other situation.  We also
agree with the Panel that the basis of comparison must be the tax rules
applied by the Member in question. … What is "otherwise due",
therefore, depends on the rules of taxation that each Member, by itsown choice, establishes for itself.
84
91. The principles stated in that case also apply here.  We note, once more, that Canada has
established a normal MFN duty rate for imports of motor vehicles of 6.1 per cent.85  Absent the import
duty exemption, this duty would be paid on imports of motor vehicles.  Thus, through the measure indispute, the Government of Canada has, in the words of  United States – FSC , "given up an
entitlement to raise revenue that it could 'otherwise' have raised."
 86  More specifically, through the
import duty exemption, Canada has ignored the "defined, normative benchmark" that it established foritself for import duties on motor vehicles under its normal MFN rate and, in so doing, has foregone"government revenue that is otherwise due".
92. Canada argues that the measure is "analogous" to the situation described in footnote 1 to the
SCM Agreement , which provides that "the exemption of an exported product from duties or taxes
borne by the like product when destined for domestic consumption, or the remission of such duties ortaxes in amounts not in excess of those which have accrued, shall not be deemed to be a subsidy."  Wedo not share Canada's view.  Footnote 1 to the  SCM Agreement   deals with duty and tax exemptions
or remissions for  exported   products.  The measure at issue applies, in contrast, to  imports   of motor
vehicles which are sold for consumption in Canada.  For this reason, we do not consider that footnote1 bears upon the import duty exemption at issue in this case.
                                                     
84Supra , footnote 76, para. 90.
85Supra , footnote 19.
86Supra , footnote 76, para. 90.WT/DS139/AB/R
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Page 30
93. In our view, it is also not relevant that motor vehicles benefiting from the import duty
exemption may enter Canada duty-free if imported under the provisions of the NAFTA.  Duty-freetreatment under the NAFTA is not at issue in this case.  The measure at issue in this case is the importduty exemption set out in the MVTO 1998 and the SROs.
94. For these reasons, we uphold the Panel's finding that "government revenue that is otherwise
due is foregone" and that the measure constitutes a "subsidy" under Article 1.1 of theSCM Agreement .
87
B. Whether the Measure is "Contingent…in Law…upon Export Performance"
95. Canada appeals the Panel's finding that the measure is a subsidy which is "contingent
…in law…upon export performance" within the meaning of Article 3.1(a) of the  SCM Agreement .
Canada argues that the Panel erred in law by misinterpreting the definition of "contingent", andalleges that the Panel did not "even attempt to demonstrate contingency 'on the basis of the words ofthe relevant legislation…';  instead, it resorted to hypothetical 'facts'."
 88  Thus, Canada maintains that
the Panel erroneously found the measure contingent "in law" upon export performance because itconducted a "hypothetical" analysis of certain factual elements.
89  Canada submits, furthermore, that
the facts relating to the measure do not demonstrate that it is  de facto   contingent upon export
performance.90
96. The Panel concluded that the subsidy provided by the measure is "contingent…in law…upon
export performance" within the meaning of Article 3.1(a) of the  SCM Agreement .91  In its analysis,
the Panel examined the ratio requirements, but not the CVA requirements92, of the measure under the
MVTO 1998 and the SROs.  The Panel found that "the MVTO 1998 and the SROs demonstrate, ontheir face, that the import duty exemption is contingent upon export performance…".
93
                                                     
87Panel Report, para. 10.170.
88Canada's appellant's submission, para. 77.
89Ibid., para. 78.
90Ibid., para. 80.
91Panel Report, para. 10.201.
92The Panel's failure to examine the European Communities' claim relating to the CVA requirements
under Article 3.1(a) of the  SCM Agreement  is dealt with in Section VII of this Report.
93Panel Report, para. 10.192.WT/DS139/AB/R
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97. Article 3.1 of the  SCM Agreement  provides, in pertinent part:
Except as provided in the Agreement on Agriculture, the following
subsidies, within the meaning of Article 1, shall be prohibited:
(a) subsidies contingent, in law or in fact, whether solely or as
one of several other conditions, upon export performance,
including those illustrated in Annex I;
…
(footnotes omitted)
98. In  Canada – Measures Affecting the Export of Civilian Aircraft ("Canada – Aircraft "), we
noted that the key word in Article 3.1(a) is "contingent":
…the ordinary connotation of "contingent" is "conditional" or
"dependent for its existence on something else".  This common
understanding of the word "contingent" is borne out by the text of
Article 3.1(a), which makes an explicit link between "contingency"
and "conditionality" in stating that export contingency can be the sole
or "one of several other  conditions ".94  (footnote omitted)
99. Although in  Canada – Aircraft  we were dealing with a subsidy that was contingent "in fact"
upon export performance, we stated in that case that "the legal standard expressed by the word'contingent' is the same for both  de jure   or  de facto   contingency."
 95  We stated, furthermore, that:
There is a difference, however, in what evidence may be employed to
prove that a subsidy is export contingent.  De jure   export contingency
is demonstrated on the basis of the words of the relevant legislation,
regulation or other legal instrument.  Proving  de facto   export
contingency is a much more difficult task.  There is no single legal
document which will demonstrate, on its face, that a subsidy is
"contingent…in fact…upon export performance".  Instead, the
existence of this relationship of co ntingency, between the subsidy and
export performance, must be  inferred   from the total configuration of
the facts constituting and surrounding the granting of the subsidy,
none of which on its own is likely to be decisive in any given case.96
(emphasis in italics in the original;  emphasis in underlining added)
100. We start with what we have held previously.  In our view, a subsidy is contingent "in law"
upon export performance when the existence of that condition can be demonstrated on the basis of the
very words of the relevant legislation, regulation or other legal instrument constituting the measure.
                                                     
94Appellate Body Report, WT/DS70/AB/R, adopted 20 August 1999, para. 166.
95Ibid., para. 167.
96Ibid.WT/DS139/AB/R
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Page 32
The simplest, and hence, perhaps, the uncommon, case is one in which the condition of exportation is
set out expressly, in so many words, on the face of the law, regulation or other legal instrument.  Webelieve, however, that a subsidy is also properly held to be  de jure   export contingent where the
condition to export is clearly, though implicitly, in the instrument comprising the measure.  Thus, fora subsidy to be  de jure   export contingent, the underlying legal instrument does not always have to
provide  expressis verbis   that the subsidy is available only upon fulfillment of the condition of export
performance.  Such conditionality can also be derived by necessary implication from the wordsactually used in the measure.
101. In this case, the key legal instrument settin g out the ratio requirements is the MVTO 1998.
The Panel found that, for the four MVTO automobile manufacturer beneficiaries, the MVTO 1998 is
the only  legal instrument setting out the ratio requirements.
97  For the manufacturers that are
beneficiaries under the SROs, each SRO specifies a precise ratio requirement for the company forwhich it is issued.
98
102. The Panel found, as a matter of fact, that:
…the ratio requirements applicable to the MVTO 1998 beneficiaries
are, "as a general rule", 95:100 for automobiles, at least 75:100 for
SCVs and at least 75:100 for buses.  With respect, specifically, to the
four automobile manufacturer beneficiaries under the MVTO 1998,
Canada has stated, in response to a question from the Panel, that theamounts of the ratio requirements are confidential.  Canada adds that
they range from the low-80s:100 to the high-90s:100, and the average
of the four amounts is approximately 95:100.  We further note that the
SROs issued prior to 1997 set the minimum ratio requirement at
75:100.  Regarding the SROs issued since 1997, almost all such SROs
have the ratio requirement set at 100:100.
99  (footnotes omitted)
103. As the MVTO 1998 is the key legal instrument setting out the ratio requirements, compliance
with which enables a manufacturer to qualify for the import duty exemption, it is important to quotethe relevant aspects of the definition of "manufacturer" in that regulation:
                                                     
97Panel Report, para. 10.193.
98Ibid., para. 10.182.
99Ibid.  We note that the Panel referred to "1997" rather than "1977" in para. 10.182 of the Panel
Report.  We believe this reference is simply a clerical error, as confirmed by the Panel's reference to "1977" inpara. 2.34 of its Report.WT/DS139/AB/R
WT/DS142/AB/R
Page 33
"[M]anufacturer" means a manufacturer of a class of vehicles who
…
(b)  produced vehicles of a class in Canada in the 12-month period
ending on July 31 in which the importation is made where
(i)  the ratio of the net sales value of the vehicles produced to
the net sales value of all vehicles of that class sold for
consumption in Canada by the manufacturer in that period is
equal to or higher than the ratio of the net sales value of all
vehicles of that class produced in Canada by the manufacturer
in the base year to the net sales value of all vehicles of that
class sold for consumption in Canada by the manufacturer inthe base year, and is not in any case lower than 75 to 100…
100
104. We agree with the Panel that "[i]n cases where the production-to-sales ratio is 100:100,  the
only way to import any motor vehicles duty-free is to export, and the amount of import duty
exemption allowed is directly dependent upon the amount of exports achieved."  101  Like the Panel, we
fail to see how a manufacturer with a production- to-sales ratio of 100:100 could obtain access to the
import duty exemption – and still maintain its required production-to-sales ratio – without exporting.A manufacturer producing motor vehicles in Canada with a sales value of 100 that does not export
must sell all those motor vehicles in Canada.  That manufacturer's production-to-sales ratio becomes100:100, but without the benefit of importing duty-free one single motor vehicle.  Only if thatmanufacturer exports motor vehicles produced in Canada does it become entitled to import motorvehicles free of duty.  The value of motor vehicles which can be imported duty-free is strictly limited
to the value of motor vehicles exported.  In our view, as the import duty exemption is simply not
available to a manufacturer unless it exports motor vehicles, the import duty exemption is clearlyconditional, or dependent upon, exportation and, therefore, is contrary to Article 3.1(a) of the  SCMAgreement.
105. Where the ratio requirements are set at less than 100:100 (for example, we know that the four
MVTO automobile manufacturer beneficiaries have, on average, ratio requirements ofapproximately 95:100)
102, the relationship between exports and the ability to import duty-free is less
straightforward.  With a ratio requirement of 95 :100, a manufacturer producing motor vehicles in
Canada with a sales value of 95 that does not export is nevertheless entitled to import, duty-free,
additional motor vehicles with a sales value of 5.  If that manufacturer doubles its Canadian
production to 190, then the amount of the duty-free "allowance" also doubles, to 10;  that is, the
                                                     
100MVTO 1998, Schedule, Part 1, para. 1(1), definition of "manufacturer".
101Panel Report, para. 10.184.
102Ibid., para. 10.182.WT/DS139/AB/R
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Page 34
"allowance" increases in direct proportion to the increase in production.  The Panel considered that,
up to this amount, the import duty exemption is not contingent upon export performance.103  However,
should a manufacturer wish to import on a duty-free basis any motor vehicles above its "allowance",that manufacturer must export motor vehicles.  As in the case of a 100:100 ratio requirement, for amanufacturer with a ratio requirement less than 100:100, for any amount above this duty-free"allowance", the value of vehicles which can be imported duty-free is strictly limited, and tied to, thevalue of vehicles exported.  The Panel found that for the amount exceeding th e duty-free "allowance"
there is, therefore, a clear relationship of contingency between the import duty exemption and exportperformance.
 104
106. We share the Panel's view.  Regardless of the actual ratio specified for a particular
manufacturer, the MVTO 1998 and the SROs operate, as a matter of law, in such a manner that themore motor vehicles a manufacturer exports, the more motor vehicles that manufacturer is entitled toimport duty-free.
107. Although we are not examining whether the subsidy in this case is contingent "in fact" upon
export performance, we note that footnote 4 to Article 3.1(a) uses the words "tied to" as a synonymfor "contingent" or "conditional".  As the legal standard is the same for  de facto  and  de jure  export
contingency
105, we believe that a "tie", amounting to the relationship of contingency, between the
granting of the subsidy and actual or anticipated exportation meets the legal standard of "contingent"
in Article 3.1(a) of the  SCM Agreement .
108. Even where the ratio requirement for a particular manufacturer is set at less than 100:100, in
our view, there is contingency "in law" upon export performance because, as a result of the operationof the MVTO 1998 and the SROs themselves, the granting of, or the entitlement to, the import dutyexemption is tied to the exportation of motor vehicles by the manufacturer beneficiaries.  By the veryoperation of the measure, the more motor vehicles that a manufacturer exports, the more motorvehicles it can import duty-free.  In other words, a clear relationship of dependency or conditionalityexists between the granting of the import duty exemption and the exportation of motor vehicles bymanufacturer beneficiaries.  We find, therefore, that, even when the ratio requirements are less than
100:100, the measure is "contingent…in law…upon export performance".
                                                     
103Panel Report, para. 10.188.
104Ibid., para. 10.191.
105Appellate Body Report, Canada – Aircraft , supra , footnote 94, para. 167.WT/DS139/AB/R
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Page 35
109. For these reasons, we uphold the Panel's conclusion that the measure is a "subsidy" as that
term is used in Article 1 of the  SCM Agreement   which is "contingent…in law…upon export
performance" within the meaning of Article 3.1(a) of the same Agreement.  Accordingly, we alsouphold the Panel's finding that Canada acts inconsistently with its obligations under Article 3.1(a) ofthe  SCM Agreement .
106
VII. Article 3.1(a) of the  SCM Agreement   - European Communities' Claim Regarding CVA
Requirements
110. The European Communities argues that the Panel failed to examine the claim of the European
Communities that the CVA requirements constitute a subsidy contingent upon export performance incontravention of Article 3.1(a) of the  SCM Agreement , and that this failure constitutes a legal error.
107
Although the European Communities does not specify the precise legal error it is alleging, and does
not refer to any provision in the  WTO Agreement  that has been infringed, it would appear that the
European Communities is alleging that the Panel did not act in accordance with Article 11 of the
DSU, in particular, in applying the principle of judicial economy.
111. An examination of the Panel Report reveals that the Panel made no mention in its findings of
the European Communities'  alternative   claim that the CVA requirements condition of the measure is
inconsistent with Article 3.1(a) of the  SCM Agreement .108  To all appearances, the Panel simply
overlooked this  alternative   claim.  Instead, the Panel dealt with several related claims of the
European Communities.  The Panel found that the CVA requirements are inconsistent withArticle III:4 of the GATT 1994
109 and Article XVII of the GATS110, but are consistent with
Article 3.1(b) of the  SCM Agreement .111  The Panel also found that the measure is a prohibited export
subsidy under Article 3.1(a) of the  SCM Agreement   because of the condition of the ratio
requirements.112
112. In assessing this allegation of legal error made by the European Communities, we refer to the
obligations of panels set out in very general terms in Article 11 of the DSU.  This provision reads, inrelevant part:
                                                     
106Panel Report, para. 10.201.
107European Communities' appellant's submission, paras. 62-64.
108Ibid., para. 64.
109Panel Report, para. 10.90.
110Ibid., para. 10.308.
111Ibid., paras. 10.216 and 10.222.
112Ibid., para. 10.201.WT/DS139/AB/R
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…a panel should make an objective assessment of the matter before it,
including an objective assessment of the facts of the case and the
applicability of and conformity with the relevant covered agreements,
and  make such other findings as will assist the DSB  in making the
recommendations or in giving the ru lings provided for in the covered
agreements.  (emphasis added)
113. The standard terms of reference of a panel, set out in Article 7.1 of the DSU, speak in very
similar terms.  A panel should make "such findings as will assist the DSB" in makingrecommendations or rulings.  Under Article 7.2 of the DSU, a panel "shall address the relevantprovisions in any covered agreement or agreements cited by the parties to the dispute."
114. In discharging its functions under Articles 7 and 11 of the DSU, a panel is not, however,
required to examine  all  legal claims made before it.  A panel may exercise judicial economy.
In United States – Measure Affecting Imports of  Woven Wool Shirts and Blouses from India , we said:
Nothing in [Article 11 of the DSU] or in previous GATT practice
requires a panel to examine all
 legal claims made by the complaining
party.  Previous GATT 1947 and WTO panels have frequentlyaddressed only those issues that such panels considered necessary for
the resolution of the matter between the parties, and have declined to
decide other issues.  Thus, if a panel found that a measure was
inconsistent with a particular provision of the GATT 1947, it generally
did not go on to examine whether the measure was also inconsistentwith other GATT provisions that a complaining party may have argued
were violated.
113
115. We refined this notion in  Australia – Measures Affecting the Importation of Salmon
("Australia – Salmon "), where we said:
The principle of judicial economy has to be applied keeping in mind
the aim of the dispute settlement system.  This aim is to resolve the
matter at issue and "to secure a positive solution to a dispute".  To
provide only a partial resolution of the matter at issue would be false
judicial economy.  A panel has to address those claims on which a
finding is necessary in order to enable the DSB to make sufficiently
precise recommendations and rulings so as to allow for prompt
compliance by a Member   with those recommendations and rulings "in
order  to ensure effective resolution of disputes   to the benefit of all
Members."  114  (emphasis added;  footnote omitted)
                                                     
113Appellate Body Report, WT/DS33/AB/R, adopted 23 May 1997, p. 18.
114Appellate Body Report, WT/DS18/AB/R, adopted 6 November 1998, para. 223.WT/DS139/AB/R
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Page 37
116. In our view, it was not necessary for the Panel to make a determination on the European
Communities'  alternative   claim relating to the CVA requirements under Article 3.1(a) of the
SCM Agreement   in order "to secure a positive solution" to this dispute.  The Panel had already found
that the CVA requirements violated both Article III:4 of the GATT 1994 and Article XVII of theGATS.  Having made these findings, the Panel, in our view, exercising the discretion implicit in theprinciple of judicial economy, could properly decide not to examine the  alternative   claim of the
European Communities that the CVA requirements are inconsistent with Article 3.1(a) of the SCM Agreement.
117. We are bound to add that, for purposes of transparency and fairness to the parties, a panel
should, however, in all cases, address expressly those claims which it declines to examine and rule
upon for reasons of judicial economy.  Silence does not suffice for these purposes.
VIII.  Article 3.1(b) of the  SCM Agreement
118. The European Communities and Japan appeal the Panel's finding that they failed to
demonstrate that the import duty exemption is a subsidy which is "contingent…upon the use ofdomestic over imported goods" under Article 3.1(b) of the  SCM Agreement .  They maintain that the
Panel erred in concluding that the measure is not contingent "in law" upon the use of domestic overimported goods.
115  In the alternative, the European Communities and Japan claim that the Panel erred
in concluding that Article 3.1(b) does not extend to contingency "in fact", and they assert that the
import duty exemption is contingent "in fact" upon the use of domestic over imported goods.116  We
address each of these issues in turn.
A. Whether the Measure is Contingent "in Law" Upon the Use of Domestic over
Imported Goods
119. In appealing the Panel's conclusion regarding contingency "in law", the European
Communities argues that Article 3.1(b) of the  SCM Agreement  prohibits subsidies contingent upon a
condition that "gives preference to" the use of domestic over imported goods.117  On the other hand,
Japan submits that Article 3.1(b) prohibits subsidies where the use of domestic over imported goods"would lead to" the granting or maintaining of the subsidy.
118  In their view, the Panel's interpretation
is incompatible with the object and purpose of Article 3.1(b), and would allow circumvention of this
                                                     
115European Communities' appellant's submission, para. 5;  Japan's appellant's submission, para. 2.
116Ibid.
117European Communities' appellant's submission, para. 23.
118Japan's appellant's submission, para. 7.WT/DS139/AB/R
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Page 38
provision.119  Furthermore, the European Communities and Japan argue that, applying the test used by
the Panel, the CVA requirements, in certain circumstances, do require the "actual use of domesticgoods"
 120 as a matter of law.121  Finally, according to the European Communities and Japan, the use of
domestic over imported goods as a result of the CVA requirements is an "alternative" condition "inlaw" for receiving the import duty exemption, and is, therefore, inconsistent with Article 3.1(b) of theSCM Agreement .
122
120. In examining the CVA requirements under Article 3.1(b), the Panel stated:
As we noted in the section of our report relating to claims under
Article 3.1(a) of the SCM Agreement, the word "contingent" has beendefined, inter alia , as "conditional, dependent".  It is in light of this
ordinary meaning of the word "contingent" that we must examine
whether, under the CVA requirements outlined above, access to the
import duty exemption is conditional or dependent upon the use of
domestic over imported goods.
123
121. The Panel found that:
…while under the MVTO 1998 and SROs access to the import duty
exemption is contingent upon satisfying certain CVA requirements, avalue-added requirement is in no sense synonymous with a condition
to use domestic over imported goods.  In this regard, we recall that the
definition of "CVA" in the MVTO 1998 includes, in addition to parts
and materials of Canadian origin, such other elements as direct labour
costs, manufacturing overheads, general and administrative expensesand depreciation.  Thus, and depending upon the factual
circumstances, a manufacturer might well be willing and able to
satisfy a CVA requirement without using any domestic goods
whatsoever.  Under these circumstances, it would be difficult for us to
conclude that access to the import duty exemption is contingent, i.e.
conditional or dependent, in law on the use of domestic over imported
goods within the meaning of the SCM Agreement .
124 (emphasis added)
                                                     
119European Communities' appellant's submission, para. 25;  Japan's appellant's submission, paras. 8
and 14.
120European Communities' appellant's submission, para. 28.
121See Japan's appellant's submission, para. 11.
122European Communities' appellant's submission, paras. 43-50;  Japan's appellant's submission,
paras. 9 and 17.
123Panel Report, para. 10.213.
124Ibid., para. 10.216.WT/DS139/AB/R
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122. Article 3.1(b) provides as follows:
Except as provided in the Agr eement on Agriculture, the following
subsidies, within the meaning of Article 1, shall be prohibited:
…
(b) subsidies contingent, whether solely or as one of several other
conditions, upon the use of domestic over imported goods.
As we have already found that the import duty exemption constitutes a "subsidy" within the meaning
of Article 1 of the  SCM Agreement , we turn to whether this subsidy is contingent "in law" upon the
use of domestic over imported goods.
123. In our discussion of Article 3.1(a) in Section VI of this Report, we recalled that in  Canada –
Aircraft  we stated that "the ordinary connotation of 'contingent' is 'conditional' or 'dependent for its
existence on something else'."  125  Thus, a subsidy is prohibited under Article 3.1(a) if it is
"conditional" upon export performance, that is, if it is "dependent for its existence on" exportperformance.  In addition, in  Canada – Aircraft , we stated that contingency "in law" is demonstrated
"on the basis of the  words  of the relevant legislation, regulation or other legal instrument."
 126
(emphasis added)  As we have already explained, such conditionality can be derived by necessary
implication from the words ac tually used in the measure.127  We believe that this legal standard
applies not only to "contingency" under Article 3.1(a), but also to "contingency" under Article 3.1(b)of the  SCM Agreement .
124. As we are considering a claim of "in law" cont ingency under Article 3.1(b), it is important to
quote the definition of "Canadian value added" set out in the key legal instrument, the MVTO 1998:
"Canadian value added" means
(a)  in relation to a class of vehicles produced in Canada in any 12-
month period ending on July 31,  the aggregate of the following costs 
to the manufacturer of producing all vehicles of that class that areproduced in Canada by the manufacturer in that period and the
following depreciation and capital cost allowances for that period,
namely ,
                                                     
125Supra , footnote 94, para. 166.
126Ibid. , para. 167.
127Supra , para. 100.WT/DS139/AB/R
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(i)  the cost of parts produced in Canada, and the cost of materials to
the extent that they are of Canadian origin, that are incorporated in
vehicles in the factory of the manufacturer in Canada, but not
including parts produced in Canada, or materials to the extent thatthey are of Canadian origin, that have been exported from Canada and
subsequently imported into Canada as parts or materials,
(ii)  transportation costs, including insurance charges,…
(iii)  notwithstanding subparagraph (i), the cost of the iron, steel and
aluminum content of parts produced outside Canada for incorporation
in the vehicles,  if the iron, steel or aluminum was poured in
Canada,…
(iv)  the part of the following costs that is reasonably attributable to
the production of the vehicles, namely,
(A)  wages paid for direct production labour in Canada,
(B)  wages paid for indirect production and non-production labour in
Canada,
(C)  the cost of materials used in the production operation but not
incorporated in the final product,
(D)  the cost of heating, lighting, power and water,
(E)  worker's compensation, employment insurance and group
insurance premiums, pension contributions and similar expensesincurred in respect of labour refe rred to in clauses (A) and (B),
(F)  taxes on land and buildings in Canada,
(G)  fire and other insurance premiums,…
(H)  rent for factory premises paid to the beneficial owner in Canada,
(I)  the cost of maintenance and repair work executed in Canada on
buildings, machinery and equipment used for production purposes,
(J)  the cost of tools, dies, jigs, fixtures and other similar equipment of
a non-permanent nature that have been manufactured in Canada,
(K)  the cost of engineering services, experimental work and product
development work executed in Canada, and
(L)  miscellaneous factory expenses,
(v)  administrative and general expenses incurred in Canada that are
reasonably attributable to the production of the vehicles,
(vi)  depreciation…, and
(vii)  a capital cost allowance…
128  (emphasis added)
This definition also applies to the SROs.
                                                     
128MVTO 1998, Schedule, Part 1, para. 1(1), definition of "Canadian value added".WT/DS139/AB/R
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125. The import duty exemption at issue in this appeal is contingent on the satisfaction of three
requirements:  (1) manufacturing presence in Canada,  (2) the ratio requirements, and  (3) the CVArequirements.  The Panel found that each of these requirements was a "condition" for receiving theimport duty exemption.
129  Under the measure, a manufacturer ap plying for the import duty exemption
in a particular period is required to disclose to the Government of Canada the  aggregate   of the costs,
listed in the definition of "Canadian value added" in the MVTO 1998, of producing vehicles inCanada, so as to demonstrate that the manufacturer has satisfied the CVA requirements.  One of thesecosts – indeed, the first one listed – is Canadian parts and materials incorporated in motor vehicles inthe factory of the manufacturer in Canada, that is, "domestic goods".
126. The precise issue under Article 3.1(b) is whether the  use  of domestic over imported goods is
a "condition" for satisfying the CVA requirements, and, therefore, for receiving the import dutyexemption.
127. In examining this issue, the Panel first set out  the CVA requirements, as contained in three
separate legal instruments:  the MVTO 1998, the SROs, and the Letters of Undertaking.
130  W i t h
respect to the MVTO 1998, the Panel did not make any specific findings regarding the actualpercentages of CVA required for individual manufacturer beneficiaries.  The Panel simply noted that"there are the CVA requirements under the MVTO 1998 itself
 ".131  For the SROs, the Panel discussed
"typical" levels of CVA required for companies operating under SROs issued before 1984 and those
issued from 1984 onwards.  For one manufacturer,  CAMI Automotive Inc. ("CAMI"), the Panel
stated that it "must meet a requirement that the total CVA of its vehicles and original equipmentmanufacturing parts produced in Canada in a given year must be at least 60 per cent of the cost ofsales of vehicles sold in Canada in the same year."
 132  With regard to the Letters of Undertaking
signed by General Motors, Ford, Chrysler and American Motors, the Panel noted that these Lettersrequire an  increase  in the amount of CVA by an amount equal to 60 per cent of the growth in their
market for automobiles sold for consumption in Canada and by an amount equal to 50 per cent of thegrowth in their market for commercial vehicles sold for consumption in Canada, and include a
requirement to achieve a stipulated increase in the annual CVA by the end of model year 1968.
However, the Panel did  not determine what the  actual   amount of CVA required is under those
Letters.
133  The Panel added, in a footnote, that "[c]ompliance with [the Letters] is not explicitly a
                                                     
129Panel Report, para. 10.4.
130Ibid., paras. 10.203-10.206.
131Ibid., para. 10.204.
132Ibid., para. 10.205.
133Ibid., para. 10.206.WT/DS139/AB/R
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factor in determining the eligibil ity for the import duty exemption."  134  Apparently, the Panel found
that the CVA requirements in the Letters are not "conditions" additional to those in the MVTO 1998for the MVTO manufacturers.
128. The Panel then examined whether the import duty exemption is contingent "in law" upon the
use of domestic over imported goods.  In its ex amination, however, the Panel did not conduct an
analysis of how the CVA requirements under the MVTO 1998 and the SROs actually work.  ThePanel began its legal analysis by stating that "a value-added requirement is in no sense synonymouswith a condition to use domestic over imported goods."
 135  The Panel apparently reached this
conclusion without any inquiry into the specific CVA requirements for specific manufacturer
beneficiaries.  Although the Panel did explain what  types  of costs could be used to satisfy the CVA
requirements, the Panel did not, for any MVTO manufacturer or for particular SRO manufacturers
(with the exception of CAMI), make any findings as to the  actual level  of CVA required.  The
Panel's statement that "value-added requirements " are "not synonymous" with a condition to use
domestic over imported goods seems to have been based on "value-added requirements" consideredin the abstract   as opposed to the actual CVA requirements for the MVTO and SRO manufacturer
beneficiaries.
129. The Panel then recalled the following:
…we recall that the definition of "CVA" in the MVTO 1998 includes,
in addition to parts and materials of Canadian origin, such other
elements as direct labour costs, manufacturing overheads, general and
administrative expenses and depreciation.  Thus, and depending upon
the factual circumstances, a manufacturer might well be willing and
able to satisfy a CVA requirement without using any domestic goods
whatsoever .
136  (emphasis added)
Once again, the Panel reached its conclusion here without examining the specific CVA requirements
in the MVTO 1998 and the SROs.  The Panel simply speculated that "depending upon the factual
circumstances", a manufacturer " might well be  willing and  able  to satisfy a CVA requirement
without using any domestic goods whatsoever ".  (emphasis added)  The Panel did not, however,
scrutinize the actual CVA requirements for MVTO and SRO manufacturers to see whether they couldindeed be satisfied without using domestic goods.
                                                     
134Panel Report, footnote 896.
135Ibid., para. 10.216.
136Ibid.WT/DS139/AB/R
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130. The Panel's reasoning implies that under no circumstances could  any  value-added
requirement result in a finding of contingency "in law" upon the use of domestic over imported goods.We do not agree.  We noted that the definition of "Canadian value added" in the MVTO 1998
requires   a manufacturer to report to the Government of Canada the  aggregate   of certain listed costs
of its production of motor vehicles, and that the first such cost item specified is the cost of Canadianparts and materials  used  in the production of motor vehicles in its factory in Canada.
137  It seems to
us that whether or not a particular manufacturer is able to satisfy its specific CVA requirementswithout using any Canadian parts and materials in its production depends very much on the  level  of
the applicable CVA requirements.  For example, if the level of the CVA requirements is very high, we
can see that the use of domestic goods may well be a necessity and thus be, in practice, required as a
 condition   for eligibility for the import duty exemption.  By contrast, if the level of the CVA
requirements is very low, it would be much easier to satisfy those requirements  without   actually
using domestic goods;  for example, where the CVA requirements are set at 40 per cent, it might bepossible to satisfy that level simply with the aggregate of other elements of Canadian value added, inparticular, labour costs.  The multiplicity of possibilities   for compliance with the CVA requirements,
when these requirements are set at low levels, may, depending on the specific level applicable to aparticular manufacturer, make the use of domestic goods only one  possible   means (means which
might not, in fact, be utilized) of satisfying the CVA requirements.
131. In our view, the Panel's examination of the CVA requirements for specific manufacturers was
insufficient for a reasoned determination of whether contingency "in law" on the use of domestic overimported goods exists.  For the MVTO 1998 manufacturers and most SRO manufacturers, the Paneldid not make findings as to what the actual CVA re quirements are and how they operate for individual
manufacturers.  Without this vital information, we do not believe the Panel knew enough about themeasure to determine whether the CVA requirements were contingent "in law" upon the use ofdomestic over imported goods.  We recall that the Panel did make a finding as to the level of the CVArequirements for one company, CAMI.  The Panel stated that the CVA requirements for CAMI are 60per cent of the cost of sales of vehicles sold in Canada.
138  At this level, it may well be that the CVA
requirements operate as a condition for using domestic over imported goods.  However, the Panel did
not  examine how the CVA requirements would actually operate at a level of 60 per cent.
                                                     
137Supra , para. 125.
138Panel Report, para. 10.205.WT/DS139/AB/R
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132. The Panel's failure to examine fully the legal in struments at issue here and their implications
for individual manufacturers vitiates its conclusion that the CVA requirements do not make the importduty exemption contingent "in law" upon the use of  domestic over imported goods.  In the absence of
an examination of the operation of the applicable CVA requirements for individual manufacturers, thePanel simply did not have a sufficient basis for its finding on the issue of "in law" contingency.  Thus,we conclude that the Panel erred in conducting its "in law" contingency analysis.
133. In  Australia – Salmon , we stated that where we have reversed a finding of a panel, we should
attempt to complete a panel's legal analysis "to the extent possible on the basis of the factual findingsof the Panel and/or of undisputed facts in the Panel record".
139  Here, as we have stated, the Panel did
not identify the precise levels of the CVA requirements applicable to specific manufacturers.  In
addition, there are not sufficient undisputed facts in the Panel record that would enable us to examinethis issue ourselves.  As a result, it is impossible for us to assess whether the use of domestic overimported goods is a condition "in law" for satisfying the CVA requirements, and, therefore, is acondition for receiving the import duty exemption.
134. In light of these considerations, we are unable to complete the legal analysis necessary to
determine whether the import duty exemption, through the application of the CVA requirements, iscontingent "in law" upon the use of domestic over imported goods.  Therefore, we make no findingand reserve our judgment on whether the import duty  exemption at issue is contingent "in law" upon
the use of domestic over imported goods within the meaning of Article 3.1(b) of the  SCM Agreement .
B. Whether the Measure is Contingent "in Fact" Upon the Use of Domestic over
Imported Goods
135. On appeal, the European Communities and Japan have maintained that if we find that the
measure is not contingent "in law" upon the use of domestic over imported goods, then they appeal, inthe alternative, the Panel's finding that Article 3.1(b) of the  SCM Agreement  does not apply to
subsidies contingent "in fact" upon the use of domestic over imported goods.
140  The European
Communities and Japan contend that Article 3.1(b) applies to subsidies contingent "in fact" upon the
                                                     
139Supra , footnote 114, para. 118.
140European Communities' appellant's submission, paras. 53-54;  Japan's appellant's submission,
para. 19.WT/DS139/AB/R
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Page 45
use of domestic over imported goods141, and argue that the import duty exemption is precisely such a
prohibited subsidy.142
136. The Panel examined the issue of whether Article 3.1(b) extends to subsidies contingent "in
fact" upon the use of domestic over imported goods, and found as follows:
…we recall that Article 3.1 is, as clearly indicated by its chapeau, the
provision that sets out the subsidies prohibited under the
SCM Agreement.  Paragraphs (a) and (b) are both part of Article 3.1
and manifestly similar.  It is hard to imagine how the inclusion of the
words "in law or in fact" in paragraph (a) and the absence of suchwords in paragraph (b) could be but a reflection of the intention of the
drafters.  We further recall that the Appellate Body has held in  Japan
– Alcoholic Beverages  that "omission must have some meaning".
That two provisions so alike and juxtaposed together should differ
from each other in such specific respect signals, in our view, that theomission of the words "in law or in fact" from Article 3.1(b) was
deliberate and that  Article 3.1(b) extends only to contingency in
law.
143  (emphasis added;  footnote omitted)
137. In examining this issue, the Panel appears to have taken the view that the terms of
Article 3.1(b), on their own, do not answer the quest ion, and, therefore, it turned to the context
provided by Article 3.1(a).  In this respect, the Panel relied on the fact that, in Article 3.1(a), there is
explicit language applying to subsidies contingent "in law or in fact" while in Article 3.1(b) there isnot.  In the view of the Panel, the absence of such an explicit reference in the adjacent and closely-related provision of Article 3.1(b) indicates that the drafters intended Article 3.1(b) to apply only tothose subsidies which are contingent "in law" upon the use of domestic over imported goods.
138. In our view, the Panel's analysis was incomplete.  As we have said, and as the Panel recalled,
"omission must have some meaning."
 144  Yet omissions in different contexts may have different
meanings, and omission, in and of itself, is not necessarily dispositive.  Moreover, while the Panelrightly looked to Article 3.1(a) as relevant context in interpreting Article 3.1(b), the Panel failed to
examine other contextual elements for Article 3.1(b) and to consider the object and purpose of the
SCM Agreement .
                                                     
141European Communities' appellant's submission, paras. 55-61;  Japan's appellant's submission,
paras. 20-33.
142European Communities' appellant's submission, para. 53;  Japan's appellant's submission,
paras. 36-51.
143Panel Report, para. 10.221.
144Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, WT/DS10/AB/R,
WT/DS11/AB/R, adopted 1 November 1996, p. 18.WT/DS139/AB/R
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Page 46
139. We look first to the text of Article 3.1(b).  In doing so, we observe that the ordinary meaning
of the phrase "contingent…upon the use of domestic over imported goods" is not conclusive as towhether Article 3.1(b) covers both subsidies contingent "in law" and subsidies contingent "in fact"upon the use of domestic over imported goods.  Just as there is nothing in the language ofArticle 3.1(b) that specifically  includes  subsidies contingent "in fact", so, too, is there nothing in that
language that specifically  excludes  subsidies contingent "in fact" from the scope of coverage of this
provision.  As the text of the provision is not conclusive on this point, we must turn to additionalmeans of interpretation.  Accordingly, we look for guidance to the relevant context of the provision.
140. Although we agree with the Panel that Article 3.1(a) is relevant context, we believe that other
contextual aspects should also be examined.  First, we note that Article III:4 of the GATT 1994 also
addresses measures that favour the use of domestic over imported goods, albeit with different legalterms and with a different scope.  Nevertheless, both Article III:4 of the GATT 1994 andArticle 3.1(b) of the  SCM Agreement  apply to measures that require the use of domestic goods over
imports.  Article III:4 of the GATT 1994 covers both  de jure  and  de facto   inconsistency.
145  Thus, it
would be most surprising if a similar provision in the  SCM Agreement  applied only to situations
involving  de jure  inconsistency.
141. Second, we recall our findings in  European Communities – Regime for the Importation, Sale
and Distribution of Bananas  ("European Communities – Bananas ") on whether or not Article II of
the GATS covers cases of  de facto   discrimination.146  In that case, the Panel found that Article XVII
of the GATS provides relevant context for determining whether Article II of the GATS applies to bothde jure  and  de facto  discrimination.  On this issue, we said:
Article XVII of the GATS is merely one of many provisions in the
WTO Agreement  that require the obligation of providing "treatment no
less favourable".  The possibility that the two Articles may not haveexactly the same meaning does  not  imply that the intention of the
drafters of the GATS was that a  de jure , or formal, standard should
apply in Article II of the GATS.  If that were the intention, why does
Article II not say as much?  The obligation imposed by Article II is
unqualified.  The ordinary meaning of this provision does not excludede facto  discrimination.
147
                                                     
145See, e.g., panel report, Italian Discrimination against Imported Agricultural Machinery , L/833,
BISD 7S/60, adopted 23 October 1958, para. 12.
146Appellate Body Report, WT/DS27/AB/R, adopted 25 September 1997, para. 233.
147Ibid.WT/DS139/AB/R
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We believe the same reasoning is applicable here.  The fact that Article 3.1(a) refers to "in law or in
fact", while those words are absent from Article 3.1(b), does not necessarily mean that Article 3.1(b)extends only to  de jure   contingency.
142. Finally, we believe that a finding that Article 3.1(b) extends only to contingency "in law"
upon the use of domestic over imported goods would be contrary to the object and purpose of theSCM Agreement  because it would make circumvention of obligations by Members too easy.  We
expressed a similar concern with respect to the GATS in  European Communities – Bananas   when
we said:
Moreover, if Article II was not applicable to  de facto  discrimination, it
would not be difficult -- and, indeed, it would be a good deal easier in
the case of trade in services, than in the case of trade in goods -- to
devise discriminatory measures aimed at circumventing the basicpurpose of that Article.
148
143. For all these reasons, we believe that the Panel erred in finding that Article 3.1(b) does not
extend to subsidies contingent "in fact" upon the use of domestic over imported goods.  We, therefore,
reverse the Panel's broad conclusion that "Article 3.1(b) extends only to contingency in law."  149
144. Having reached this conclusion, we must now consider whether the import duty exemption, as
a result of the application of the CVA requirements, constitutes a subsidy contingent "in fact" uponthe use of domestic over imported goods.  We recall once more our statement in  Australia – Salmon
that, where we have reversed a finding of a panel, we should attempt to complete a panel's legalanalysis "to the extent possible on the basis of the factual findings of the Panel and/or of undisputedfacts in the Panel record".
150
145. We stated earlier that the Panel's incomplete analysis of the operation of the CVA
requirements leaves us with an insufficient basis on which to examine how the CVA requirementsfunction.  Furthermore, as the Panel concluded that Article 3.1(b) did not extend to contingency "infact", the Panel did not examine the claims of the European Communities and Japan on this issue.  Asa result the Panel made  no factual findings relating to the operation of the CVA requirements.  In
addition, there are not sufficient undisputed facts in the Panel record that would enable us to examinethis issue ourselves.  It is impossible for us to assess whether the use of domestic over imported goods
                                                     
148Supra , footnote 146, para. 233.
149Panel Report, para. 10.221.
150Supra , footnote 114, para. 118.WT/DS139/AB/R
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Page 48
is "in fact" a condition for satisfying the CVA requirements, and, therefore, is a condition for
receiving the import duty exemption.
146. We are thus unable to complete the legal analysis necessary to determine whether the import
duty exemption, through the application of the CVA requirements, is contingent "in fact" upon the useof domestic over imported goods.  Accordingly, we make no finding and reserve our judgment onwhether the import duty exemption at issue is contingent "in fact" upon the use of domestic overimported goods within the meaning of Article 3.1(b) of the  SCM Agreement .
IX. Article I:1 and Article II:1 of the GATS
147. Canada appeals the Panel's conclusion that the import duty exemption is inconsistent with
Article II:1 of the GATS.  Canada first appeals the Panel's finding that the measure is one "affecting
trade in services" within the scope of Article I:1 of the GATS.
151  It then appeals the finding that
Canada does not accord immediately and unconditionally to services and service suppliers of anyother Member treatment no less favourable than that it accords to like services and service suppliersof any other country contrary to its obligations under Article II:1 of the GATS.
152
A. Article I:1 of the GATS
148. Canada maintains that the Panel erred in finding that the import duty exemption falls within
the scope of the GATS.  In the view of Canada, the Panel mistakenly concluded that whether ameasure is within the scope of the GATS is determined by whether that measure is consistent with
certain substantive obligations, such as Article II, and not by whether the measure falls within
Article I of the GATS.
153
149. The Panel first examined the general issue of whether the import duty exemption constitutes a
measure "affecting trade in services" within the meaning of Article I of the GATS.  The Panel thenreferred to the reports of the panel and the Appellate Body in  European Communities – Bananas
  for
the proposition that "the term 'affecting' in Article I of the GATS has a broad scope of application and
that accordingly no measures are  a priori   excluded from the scope of application of the GATS."  154
                                                     
151Canada's appellant's submission, para. 102.
152Ibid., para. 145.
153Ibid. , para. 102.
154Panel Report, para. 10.231.WT/DS139/AB/R
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150. The Panel ultimately found that:
[t]he determination of whether a measure affects trade in services
cannot be done in abstract terms in isolation from examining whether
the effect of such a measure is consistent with the Member's
obligations and commitments under the GATS.  In this case, the
determination of whether the MVTO 1998 and SROs are measures
affecting trade in services within the meaning of Article I of theGATS should be done on the basis of the determination of whether
these measures constitute less favourable treatment for the services
and service suppliers of some Members as compared to those of others
(Article II) and/or for services and service suppliers of other Members
as compared to domestic ones (Article XVII).
155
151. In  United States – Import Prohibition of  Certain Shrimp and Shrimp Products , we said, in the
context of Article XX of the GATT 1994, that a pa nel may not ignore the "fundamental structure and
logic" of a provision in deciding the proper sequ ence of steps in its analysis, save at the peril of
reaching flawed results.156  Similarly, here, the fundamental structure and logic of Article I:1, in
relation to the rest of the GATS, require that determination of whether a measure is, in fact, covered
by the GATS must be made  before   the consistency of that measure with any substantive obligation
of the GATS can be assessed.
152. Article II:1 of the GATS states expressly that it applies only to "any measure covered by this
Agreement".  This explicit reference to the scope of the GATS confirms that the measure at issuemust be found to be a measure "affecting trade in services" within the meaning of Article I:1, and thuscovered by the GATS, before  any further examination of consistency with Article II can logically be
made.  We find, therefore, that the Panel should have inquired, as a threshold question, into whether
the measure is within the scope of the GATS by examining whether the import duty exemption is a
measure "affecting trade in services" within the meanin g of Article I.  In failing to do so, the Panel
erred in its interpretative approach.
                                                     
155Panel Report, para. 10.234.
156Appellate Body Report, WT/DS58/AB/R, adopted 6 November 1998, para. 119.  See also Appellate
Body Report,  United States – Standards for Reformulated and Conventional Gasoline , WT/DS2/AB/R, adopted
20 May 1996, p. 22.WT/DS139/AB/R
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153. We proceed to the threshold analysis of Article I of the GATS.  Article I:1 of the GATS
states, in pertinent part:
Article I
Scope and Definition
1. This Agreement applies to measures by Members  affecting
trade in services .
2. For the purposes of this Agreement, trade in services  is defined
as  the supply of a service :
(a) from the territory of one Memb er into the territory of any
other Member;
(b) in the territory of one Member to the service consumer of
any other Member;
(c) by a service supplier of one Member, through commercial
presence in the territory of any other Member ;
(d) by a service supplier of one Member, through presence of
natural persons of a Member in the territory of any other
Member.
(emphasis added)
154. Article XXVIII defines certain terms used in the GATS.  We refer, in particular, to the
following:
(a) "measure" means any measure by a Member, whether in the
form of a law, regulation, rule, procedure, decision,
administrative action, or any other form;
(b) "supply of a service" includes the production, distribution,
marketing, sale and delivery of a service;
(c) "measures by Members affecting trade in services" include
measures in respect of
…
(iii) the presence, including commercial presence, of persons
of a Member for the supply of a service in the territory ofanother Member;
(d) "commercial presence" means any type of business or
professional establishment, including through
(i) the constitution, acquisition or maintenance of a juridical
person,…
…
within the territory of a Member for the purpose of supplying a
service;
…WT/DS139/AB/R
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(f) "service of another Member" means a service which is supplied,
…
(ii) in the case of the supply of a service through commercial
presence or through the presence of natural persons, by aservice supplier of that other Member;
(g) "service supplier" means any person that supplies a service;
…
155. With these treaty provisions in mind, we believe that at least two key legal issues must be
examined to determine whether a measure is one "aff ecting trade in services":  first, whether there is
"trade in services" in the sense of Article I:2;  and, second, whether the measure in issue "affects"such trade in services within the meaning of Article I:1.
156. We look first at whether there is "trade in services" in this case.  For the purposes of
the GATS, "trade in services" is defined in Article I:2 as the "supply of a service" in any one of fourlisted modes of supply.  At issue here is the supply of a service under mode (c)  of Article I:2, that is,the supply of a service "by a service supplier of one Member, through  commercial presence  in the
territory of any other Member". (emphasis added)  "Commercial presence" is, in turn, defined inArticle XXVIII(d) as "any type of business or professional establishment, including through (i) the
constitution, acquisition or maintenance of a juridical person…".
157. The complainants in this case allege that the "t rade in services" here relevant is "wholesale
trade services of motor vehicles", which is a category of services recognized in the Central ProductClassification.
157  Canada does not dispute that there are service suppliers of the United States, the
European Communities and Japan which are established in Canada and which provide wholesale tradeservices of motor vehicles.
158  Accordingly, we hold that the "trade in services" here in issue is
wholesale trade services of motor vehicles supplied by service suppliers of certain Members throughcommercial presence in Canada.
                                                     
157Provisional Central Product Classification, United Nations Statistical Papers, Series M, No. 77,
1991, Subclass 61111, p. 189.  This was replaced in  1997 by the Central Product Classification (CPC)
Version 1.0 (United Nations Statistical Papers, Series M, No. 77, 1998, Subclass 61281, p. 363), which
continues to recognize wholesale trade services of motor vehicles as a category of services.
158Panel Report, para. 10.237.WT/DS139/AB/R
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158. Having concluded that there is, in fact, "trade in services" in this case, we consider next
whether the measure at issue "affects" trade in services.  In  European Communities – Bananas , we
said:
In our view, the use of the term "affecting" reflects the intent of the
drafters to give a broad reach to the GATS.  The ordinary meaning of
the word "affecting" implies a measure that has "an effect on", whichindicates a broad scope of application.  This interpretation is further
reinforced by the conclusions of previous panels that the term
"affecting" in the context of Article III of the GATT is wider in scope
than such terms as "regulating" or "governing".
159
159. We also found in that case that, although the subject matter of the GATT 1994 and that of
the GATS are different, particular measures "could be found to fall within the scope of both theGATT 1994 and the GATS",  and that such measures include those "that involve a service relating toa particular good or a service supplied in conjunction with a particular good."
 160  We further stated,  in
that case, that:
Whether a certain measure affecting the supply of a service related to
a particular good is scrutinized under the GATT 1994 or the GATS, orboth, is a matter that can only be determined on a case-by-case
basis.
161
160. In cases where the same measure can be scrutinized under  both  the GATT 1994 and the
GATS, however, the focus of the inquiry, and the specific aspects of the measure to be scrutinized,under each agreement, will be different because the subjects of the two agreements are different.Under the GATS, as we stated in  European Communities – Bananas , "the focus is on how the
measure affects the supply of the service or the service suppliers involved."
 162
161. We note that Canada argues that the import duty exemption is not a measure "affecting trade
in services" within the meaning of Article I of the GATS, because it is a tariff measure that affects the goods  themselves and not the supply of distribution services.
163  As such, Canada maintains, the
measure at issue does not "affect" a service supplier in its  capacity as a service supplier  and in its
supply of a service .164  Canada relies on our report in  European Communities – Bananas   to support
                                                     
159Supra , footnote 146, para. 220.
160Ibid., para. 221.
161Ibid.;  see also Appellate Body Report, Canada – Certain Measures Concerning Periodicals,
WT/DS31/AB/R, adopted 30 July 1997, p. 19.
162Supra , footnote 146, para. 221.
163Canada's appellant's submission, para. 115.
164Ibid.WT/DS139/AB/R
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its argument that the import duty exemption falls exclusively within the scope of the GATT 1994,
as it affects trade in goods as goods, and does  not  involve a service  relating to a particular good   or
a service  supplied in conjunction with a particular good .165
162. The Panel, however, determined that:
Like the measures at issue in the  EC – Bananas III  case, the import
duty exemption granted only to manufacturer beneficiaries bears upon
conditions of competition in the supply of distribution services,
regardless of whether it directly governs or indirectly affects the
supply of such services.  In our view, therefore, the import dutyexemption falls in the third category of measures, identified by the
Appellate Body in  EC – Bananas III , as involving "a service relating
to a particular good or a service supplied in conjunction with a
particular good", which "could be scrutinized under both the
GATT 1994 and the GATS".
166
163. In  European Communities – Bananas , we agreed with the panel that "the operators as defined
under the relevant regulations of the European Communities are, indeed, suppliers of 'wholesale tradeservices' within the definition set out in the Headnote to Section 6 of the CPC."
 167  Although the
operators in that case were engaged in certain activ ities that were not, strictly speaking, within the
definition of "distributive trade services" in the Headnote to Section 6 of the Central Product
Classification, we concluded there that "there is no question that they are also engaged in otheractivities involving the wholesale distribution of bananas that are within that definition."
 168  W i t h
respect to the fact that the operators were vertica lly integrated with producers, ripeners and retailers,
we stated, in that case, that "even if a company is vertically-integrated, and even if it performs otherfunctions related to the production, importation, distribution and processing of a product,  to the extent
that it is also engaged in providing 'wholesale trade services'   and is therefore  affected in that
capacity   by a particular measure of a Member  in its supply of those 'wholesale trade services' , that
company  is a service supplier  within the scope of the GATS."
 169 (emphasis added)
164. In this case, the Panel did not examine any evidence relating to the provision of wholesale
trade services of motor vehicles within the Canadian market and, as a result, did not make any factualfindings as to the structure of the market for motor vehicles in Canada, nor as to which companiesactually provide wholesale trade services of motor vehicles.  As a result, the Panel also never                                                     
165Canada's appellant's submission, para. 115.
166Panel Report, para. 10.239.
167Supra , footnote 146, para. 225.
168Ibid.
169Ibid. , para. 227.WT/DS139/AB/R
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examined whether or how the import duty exemption affects  wholesale trade service suppliers  in
their capacity as service suppliers .  Rather, the Panel simply stated:
Like the measures at issue in the  EC – Bananas III   case, the import
duty exemption granted only to  manufacturer beneficiaries   bears
upon conditions of competition in the supply of distribution services,
regardless of whether it directly governs or indirectly affects the
supply of such services.170  (emphasis added)
165. We do not consider this statement of the Panel to be a sufficient basis for a legal finding that
the import duty exemption "affects" wholesale trade services of motor vehicles  as services , or
wholesale trade service suppliers  in their capacity as service suppliers .  The Panel failed to analyze
the evidence on the record relating to the provision of wholesale trade services of motor vehicles inthe Canadian market.  It also failed to articulate what it understood Article I:1 to require by the useof the term "affecting".  Having interpreted Article I:1, the Panel should then have examined all therelevant facts, including  who  supplies wholesale trade services of motor vehicles through
commercial presence in Canada, and  how  such services are supplied.  It is not enough to make
assumptions.  Finally, the Panel should have applied its interpretation of "affecting trade in services"to the facts it should have found.
166. The European Communities and Japan may well be  correct in their assertions that the
availability of the import duty exemption to certain manufacturer beneficiaries of the United Statesestablished in Canada, and the corresponding unavailability of this exemption to manufacturerbeneficiaries of Europe and of Japan established in Canada, has an effect on the operations in Canadaof wholesale trade service suppliers of motor vehicles and, therefore, "affects" those wholesale trade
service suppliers in their capacity as service suppliers.  However, the Panel did not examine this issue.
The Panel merely asserted its conclusion, without explaining how or why it came to its conclusion.This is not good enough.
167. For these reasons, we believe that the Panel has failed to examine whether the measure is one
"affecting trade in services" as required under Article I:1 of the GATS.  The Panel did not show thatthe measure at issue affects wholesale trade services of motor vehicles, as services, or wholesale tradeservice suppliers of motor vehicles, in their  capacity as service suppliers .  Nonetheless, we continue
our analysis of the issues raised on appeal under Article II:1, and examine whether, in the terms ofthat provision, the measure accords treatment "no less favourable" to like services and service
suppliers of other Members.
                                                     
170Panel Report, para. 10.239.WT/DS139/AB/R
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B. Article II:1 of the GATS
168. Canada argues that even if the GATS was held applicable to the measure at issue, the Panel
is still in error in finding that this measure accord s less favourable treatment to services and service
suppliers of any other Member under Article II:1.171  Canada states that neither the European
Communities nor Japan contended that the import duty exemption discriminates "in law";  rather, theyargue that the import duty exemption discriminates "in fact" by according less favourable treatment in
practice to certain services and service suppliers.
172  In Canada's view, the Panel "was required to set
out the basis on which the measures accord less favourable treatment to certain services and servicesuppliers and to show how such less favourable treatm ent is accorded, either in fact or in law, to the
services or service suppliers of certain Members."
 173
169. In examining Canada's appeal under Article II:1 of the GATS, we begin with the text of that
provision:
Article II
Most-Favoured-Nation Treatment
1. With respect to any measure covered by this Agreement, each
Member shall accord immediately and unconditionally to services and
service suppliers of any other Member treatment no less favourable
than that it accords to like services and service suppliers of any other
country.
170. The wording of this provision suggests that an alysis of the consistency of a measure with
Article II:1 should proceed in several steps.  First, as we have seen, a threshold determination must bemade under Article I:1 that the measure is covered by the GATS.
174  This determination requires that
there be "trade in services" in one of the four modes of supply, and that there be also a measure which
"affects" this trade in services.  We have already held that the Panel failed to undertake this
analysis.175
                                                     
171Canada's appellant's submission, para. 145.
172Ibid., para. 146.
173Ibid., para. 147.
174Supra , para. 152.
175Supra , para. 167.WT/DS139/AB/R
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171. If the threshold determination is that the measure  is  covered by the GATS, appraisal of the
consistency of the measure with the requirements of Article II:1 is the next step.  The text ofArticle II:1 requires, in essence, that treatment by one Member of "services and services suppliers" ofany other Member be compared with treatment of "like" services and service suppliers of "any othercountry".  Based on these core legal elements, the Panel should first have rendered its interpretation ofArticle II:1.  It should then have made factual findings as to treatment of wholesale trade servicesand service suppliers of motor vehicles of different Members commercially present in Canada.Finally, the Panel should have applied its interpretation of Article II:1 to the facts as it found them.
172. The Panel did none of this.  The Panel did not inquire into how the market for wholesale trade
services of motor vehicles in Canada is structured.  Nor did it explain how less favourable treatment
resulted from the measure at issue.  Instead, it en gaged in speculation about the "possibility" of certain
relationships.
176  In response to Canada's argument that there is no competition between service
suppliers at the wholesale level because of vertical integration and exclusive distributionarrangements in the motor vehicle industry, the Panel stated that vertical integration:
…neither rules out potential competition in the wholesaler-
manufacturer relationship, nor actual competition in the wholesaler-
retailer relationship.  Although due to the existing structure of the
market, wholesale trade service suppliers procure their vehicles from
the same manufacturers, no government measure prevents even avertically integrated wholesale distributor from approaching different
manufacturers for the procurement of motor vehicles.
177
173. Based on this speculative analysis, the Panel proceeded to make the following "findings":
We therefore find that vertical integration and exclusive distribution
arrangements between manufacturers and wholesalers in the motor
vehicle industry  do not rule out the possibility   that treatment less
favourable  may be granted   to suppliers of wholesale trade services
for motor vehicles.  We also find that vertical integration and
exclusive distribution arrangements  do not preclude potential
competition   among wholesalers for the procurement of vehicles from
manufacturers and actual inter-brand competition for sales to
retailers.178  (emphasis in italics added)
                                                     
176Panel Report, paras. 10.253-10.254.
177Ibid. , para. 10.253.
178Ibid. , para. 10.254.WT/DS139/AB/R
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174. We consider these "findings" of the Panel to be pure speculation.  As we stated above, the
Panel did not provide an interpretation of Article II:1;  nor did it apply its interpretation to findings offact.  The Panel did not identify any evidence de fining the relationship between manufacturers and
wholesale trade service suppliers of motor vehicles in the Canadian market.  Furthermore, the Paneldid not examine, in concreto,  the structure of competition in the wholesale trade services market for
motor vehicles in Canada.  Its reasoning seems to be based solely on Canada's argument that themotor vehicle industry is characterized by vertical integration of production and distribution as well asexclusive distribution arrangements.
179  The Panel failed to conduct an analysis of whether and how
the import duty exemption affects wholesalers related to manufacturers which benefit from the import
duty exemption, as compared with wholesalers related to manufacturers which do not benefit from the
import duty exemption.  For these reasons, we reverse the Panel's "findings" in paragraph 10.254 ofthe Panel Report.
175. The Panel also considered two additional arguments of the complainants.  The European
Communities and Japan argued before the Panel that, although the criteria for eligibility for the importduty exemption are not expressly based on nationality, the import duty exemption constitutes  de facto
discrimination under Article II of the GATS as all, or  almost all, service suppliers of other Members
which benefit from the exemption are of the United States.
180  Canada disputed this point and argued
that at least two manufacturer beneficiaries are of European Communities' origin (Volvo Canada Ltd.
and DaimlerChrysler Canada Inc.).  Canada also maintained, before the Panel, that CAMI is a 50/50
joint venture between juridical persons of Japan and of the United States.  The EuropeanCommunities and Japan alleged, before the Panel, that the import duty exemption also results in  de
jure discrimination under Article II, because, in their view, the existence of the closed list of
manufacturer beneficiaries constitutes formally different treatment.
181
176. After finding that DaimlerChrysler Canada Inc. and Volvo Canada Ltd. are both juridical
persons of the United States, and deciding that there is no evidence which would allow it to determinewhich juridical person "controls" CAMI, the Panel stated:
                                                     
179Panel Report, para. 10.253.
180Ibid. , para. 10.255.
181Ibid.WT/DS139/AB/R
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Although none of the criteria for granting the import duty exemption
is expressly based on nationality, the manufacturing presence
requirement, referring to the period 1 August 1963 – 31 July 1964 in
the MVTO 1998, has allowed only three service suppliers of theUnited States (Chrysler Canada Ltd., General Motors of Canada Ltd.
and Ford Motor Company of Canada Ltd.) and one service supplier of
Sweden (Volvo Canada Ltd.) to qualify for the import duty
exemption.  It was noted above that Volvo Canada Ltd. recently
passed under the control of a juridical person of the United States
(Ford Motor Co.).  SROs have been used to expand the category of
manufacturer beneficiaries by allowing two othermanufacturers/wholesalers of automobiles (Intermeccanica of Canada
and CAMI, a 50/50 joint venture between Suzuki Motor Co. of Japan
and General Motors Corp. of the United States) and several
manufacturers/wholesalers of buses and specified commercial vehicles
to qualify for the import duty exemption.
182  (footnote omitted)
177. Having determined which manufacturer beneficiaries are "of " which Members, the Panel
does not go on to explain the relevance of these findings to its analysis under Article II:1.  Inparticular, the Panel does not clearly link these "manufacturer beneficiaries" to the suppliers ofwholesale trade services of motor vehicles, which are the relevant entities under Article II:1.
178. The Panel concludes as follows:
In our view, the import duty exemption, as provided in the
MVTO 1998 and SROs, results in less favourable treatment accorded
to services and service suppliers of any other Member within the
meaning of Article II:1 of the GATS, as such benefit is granted to a
limited and identifiable group of manufacturers/wholesalers of motor
vehicles of some Members, selected on the basis of criteria such as themanufacturing presence in a given base year.  We also note that the
manufacturing presence requirements in the MVTO 1998 and in the
SROs explicitly exclude suppliers of wholesale trade services of
motor vehicles, which do not manufacture vehicles in Canada, from
qualifying for the import duty exemption.  In addition, the fact thatin 1989 the Government of Canada stopped granting SROs makes the
list of the beneficiaries of the import duty exemption a closed one.  As
a result, manufacturers/wholesalers of motor vehicles of some
Members can import vehicles into Canada duty-free, while
manufacturers/wholesalers of other Members are explicitly preventedfrom importing vehicles duty free into Canada.
183
179. The Panel ultimately found, on the basis of this reasoning, that "with respect to the import
duty exemption, granted to a limited number of manufacturers/wholesalers of motor vehicles, Canadahas failed to accord immediately and unconditionally to services and service suppliers of any other                                                     
182Panel Report, para. 10.261.
183Ibid. , para. 10.262.WT/DS139/AB/R
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Member treatment no less favourable than it accords to like services and service suppliers of any other
country."  184  On this basis, the Panel found that the import duty exemption is inconsistent with the
requirements of Article II:1 of the GATS.185
180. Here, the Panel has compounded its earlier error in finding that the import duty exemption
which benefits certain  manufacturers  of motor vehicles "is granted to a limited and identifiable
group" of  manufacturer/wholesalers   of motor vehicles.  The Panel appears to be saying here that the
import duty exemption is granted to certain  wholesalers   of a limited number of Members, and not to
wholesalers   of other Members.  Furthermore, the Panel states that, as a result of the closed list,
wholesalers  of motor vehicles of a limited number of Members can import vehicles into Canada
duty-free, while  wholesalers   of other Members are explicitly prevented from importing vehicles
duty-free into Canada.186
181. Clearly, here the Panel is confusing the  application  of the import duty exemption to
manufacturers  with its possible  effect  on  wholesalers .  In our view, the Panel has conducted a
"goods" analysis of this measure, and has simply extrapolated its analysis of how the import duty
exemption affects manufacturers to wholesale trade service suppliers of motor vehicles.  The Panelsurmised, without analyzing the effect of the measure on wholesalers  as service  suppliers , that the
import duty exemption, granted to a limited number of manufacturers,  ipso facto  affects conditions
of competition among wholesalers  in their capacity as service suppliers .  As we stated earlier in
respect of whether the measure at issue "affects trade in services", the Panel failed to demonstrate how
the import duty exemption granted to certain  manufacturers , but not to other manufacturers , affects
the supply of  wholesale trade services   and  the suppliers of wholesale trade services   of motor
vehicles.  In reaching its conclusions under Article II:1 of the GATS, the Panel has neither assessedthe relevant facts – we see no analysis of any evidence relating to the supply of wholesale  trade
services   of motor vehicles – nor has it interpreted Article II of the GATS and applied that
interpretation to the facts it found.
182. For these reasons, we reverse the Panel's conclusion that the import duty exemption accorded
pursuant to the MVTO 1998 and the SROs is inconsistent with the requirements of Article II:1 of the
GATS
187, and its findings leading to that conclusion.
                                                     
184Panel Report, para. 10.264.
185Ibid.
186Ibid. , para. 10.262.
187Ibid. , para. 10.264.WT/DS139/AB/R
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183. In coming to this conclusion, we do not suggest that the import duty exemption does  not
affect wholesale trade services of motor vehicles in Canada.  Nor do we conclude that Canada accords
no less favourable treatment to services and service suppliers of any Member than that which itaccords to like services and service suppliers of another country consistently with Article II:1 of theGATS.  We make no such conclusion.  We mean only to say that the Panel, in this case, failed tosubstantiate its conclusion that the import duty ex emption is inconsistent with Article II:1 of the
GATS.  As such, we have no choice but to reverse the findings and conclusions of the Panel relatingto Article II:1 of the GATS.
184. In reaching this conclusion, we are mindful of the importance of the GATS as a new
multilateral trade agreement covered by the  WTO Agreement .  This appeal is only the second case in
which we have been asked to review a panel's findings on provisions of the GATS.  Given thecomplexity of the subject-matter of trade in services, as well as the newness of the obligations underthe GATS, we believe that claims made under the GATS deserve close attention and serious analysis.We leave interpretation of Article II of the GATS to another case and another day.
X. Findings and Conclusions
185. For the reasons set out in this Report, the Appellate Body:
(a) upholds the Panel's conclusion that Canada acts inconsistently with Article I:1  of the
GATT 1994 by granting the advantage of duty-free treatment to motor vehicles
originating in certain countries, pursuant to the MVTO 1998 and the SROs, which
advantage is not accorded immediately and unconditionally to like products
originating in the territories of all other WTO Members;
(b) upholds the Panel's conclusion that Canada acts inconsistently with its obligations
under Article 3.1(a) of the  SCM Agreement   by granting a subsidy which is
contingent in law upon export performance, as a result of the application of the ratiorequirements as one of the conditions fo r determining eligibility for the import duty
exemption on motor vehicles under the MVTO 1998 and the SROs;
(c) finds that the Panel's failure to addre ss the European Communities' alternative claim
that the measure, as a result of the application of the CVA requirements as one of the
conditions for the import duty exemption, is a subsidy contingent upon exportperformance within the meaning of Article 3.1(a) of the  SCM Agreement , was a
proper exercise of judicial economy;WT/DS139/AB/R
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(d) is unable to come to a conclusion, and hence reserves judgment, on whether or not the
import duty exemption is, as a result of the application of the CVA requirements,contingent "in law" upon the use of domestic over imported goods underArticle 3.1(b) of the SCM Agreement ; reverses the Panel's conclusion that
Article 3.1(b) does not extend to contingency "in fact";  and is unable to come to aconclusion, and hence reserves judgment, on whether or not the measure is contingent"in fact" upon the use of domestic over imported goods under Article 3.1(b) of theSCM Agreement , as a result of insufficient factual findings and undisputed facts in the
Panel record;
(e) finds that the Panel has failed to examine whether the measure is one "affecting trade
in services" as required under Article I:1 of the GATS;  reverses the Panel'sconclusion that the import duty exemption accorded pursuant to the MVTO 1998 andthe SROs is inconsistent with the requirements of Article II:1 of the GATS;  and alsoreverses the Panel's findings leading to its conclusion on Article II:1.
186. The Appellate Body recommends that the DSB request that Canada bring its measure found
in this Report, and in the Panel Report as modified by this Report, to be inconsistent with Canada'sobligations under Articles I:1 and III:4 of the GATT 1994, Article XVII of the GATS andparagraph (a) of Article 3.1 of the  SCM Agreement  into conformity with its obligations in those
agreements.WT/DS139/AB/R
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Signed in the original at Geneva this 18th day of May 2000 by:
_________________________
Claus-Dieter Ehlermann
Presiding Member
_________________________ _________________________
James Bacchus Florentino Feliciano
Member Member