WT/DS438/AB/R  
WT/DS444/AB/R  
WT/DS445/AB/R  
 
15 January 2015  
(15-0276)  Page: 1/138  
  Original: English  
 
 ARGENTINA – MEASURES AFFECTIN G THE IMPORTATION OF GOODS 
AB-2014-9 
Reports of the Appellate Body 
Note: 
 
The Appellate Body is issuing these Reports in the form of a single document constituting three 
separate Appellate Body Reports: WT/DS438/AB/R; WT/DS444/AB/R; and WT/DS445/AB/R. The cover page, preliminary pages, sections 1 through 5, and the annexes are common to all Reports. The page header throughout the document bears the three document symbols WT/DS438/AB/R; 
WT/DS444/AB/R; and WT/DS445/AB/R, with the following exceptions: section 6 on pages EU-128 
and EU-129, which bears the document symbol for and contains the Appellate Body's conclusions 
and recommendation in the Appellate Body Report WT/DS438/AB/R; section 6 on page US-130, 
which bears the document symbol for and contains the Appellate Body's conclusions and 
recommendation in the Appellate Body Report WT/DS444/AB/R; and section 6 on pages JPN-131 and JPN-132, which bears the document symbol fo r and contains the Appellate Body's conclusions 
and recommendation in the Appellate Body Report WT/DS445/AB/R. 
 WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Table of Contents 
 
1  INTRODUC TION ................................................................................................ 11  
2  ARGUMENTS OF THE PARTICIPAN TS AND THIRD PARTICIPANTS ..................... 18  
2.1  Claims of error by Argentina – Appellant .......................................................... 18  
2.1.1  The Panel's te rms of re ference .............................................................................. 18 
2.1.2  Identification of the single unwritten TRRs me asure ................................................. 20 
2.1.2.1  The joint claims agai nst the single TRRs me asure .................................................... 20 
2.1.2.2  Article 11 of the DSU – The Panel's finding on Japan's "as such" claims against 
the single T RRs meas ure ...................................................................................... 22 
2.1.3  The DJAI procedure: Articles  VIII and XI:1 of  the GATT 1994 .................................... 24 
2.1.3.1  The scope of Arti cle VIII of th e GATT 19 94 ............................................................. 24 
2.1.3.2  The relationship between Arti cles VIII and XI:1 of the GA TT 1994  .............................. 25 
2.1.3.3  The application of Article XI:1 of the GATT 1994 to the DJAI procedure ....................... 26 
2.2  Arguments of the Euro pean Union – Appellee ................................................... 26  
2.2.1  The Panel's te rms of re ference .............................................................................. 26 
2.2.2  Identification of the single unwritten TRRs me asure ................................................. 27 
2.2.2.1  The joint claims agai nst the single TRRs me asure .................................................... 27 
2.2.2.2  Article 11 of the DSU – The Panel's finding on Japan's "as such" claims against 
the single T RRs meas ure ...................................................................................... 29 
2.2.3  The DJAI procedure: Articles  VIII and XI:1 of  the GATT 1994 .................................... 31 
2.2.3.1  The scope of Arti cle VIII of th e GATT 19 94 ............................................................. 31 
2.2.3.2  The relationship between Arti cles VIII and XI:1 of the GA TT 1994  .............................. 31 
2.2.3.3  The application of Article XI:1 of the GATT 1994 to the DJAI procedure ....................... 32 
2.3  Arguments of the United States – Appellee ....................................................... 32  
2.3.1  The Panel's te rms of re ference .............................................................................. 32 
2.3.2  Identification of the single unwritten TRRs me asure ................................................. 33 
2.3.2.1  The joint claims agai nst the single TRRs me asure .................................................... 34 
2.3.2.2  Article 11 of the DSU – The Panel's finding on Japan's "as such" claims against 
the single T RRs meas ure ...................................................................................... 35 
2.3.3  The DJAI procedure: Articles  VIII and XI:1 of  the GATT 1994 .................................... 37 
2.3.3.1  The scope of Arti cle VIII of th e GATT 19 94 ............................................................. 37 
2.3.3.2  The relationship between Arti cles VIII and XI:1 of the GA TT 1994  .............................. 37 
2.3.3.3  The application of Article XI:1 of the GATT 1994 to the DJAI procedure ....................... 38 
2.4  Arguments of Japan – Appellee ......................................................................... 39  
2.4.1  The Panel's te rms of re ference .............................................................................. 39 
2.4.2  Identification of the single unwritten TRRs me asure ................................................. 40 
2.4.2.1  The joint claims agai nst the single TRRs me asure .................................................... 40 
2.4.2.2  Article 11 of the DSU – The Panel's finding on Japan's "as such" claims against 
the single T RRs meas ure ...................................................................................... 42 
2.4.3  The DJAI procedure: Articles  VIII and XI:1 of  the GATT 1994 .................................... 44 WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  2.4.3.1  The scope of Arti cle VIII of th e GATT 19 94 ............................................................. 44 
2.4.3.2  The relationship between Arti cles VIII and XI:1 of the GA TT 1994  .............................. 44 
2.4.3.3  The application of Article XI:1 of the GATT 1994 to the DJAI procedure ....................... 45 
2.5  Claims of error by the Euro pean Union – Othe r appellant ................................. 46  
2.5.1  The Panel's te rms of re ference .............................................................................. 46 
2.6  Arguments of Ar gentina – A ppellee .................................................................. 47  
2.6.1  The Panel's te rms of re ference .............................................................................. 47 
2.7  Claims of error by Japan – Other appellant ....................................................... 48  
2.7.1  The Panel's exercise of judicial economy on Japan's claim under Article X:1 of 
the GATT 1994 ................................................................................................... 48 
2.8  Arguments of Ar gentina – A ppellee .................................................................. 48  
2.8.1  The Panel's exercise of judicial economy on Japan's claim under Article X:1 of 
the GATT 1994 ................................................................................................... 48 
2.9  Arguments of the third partic ipants .................................................................. 49  
2.9.1  Australia ............................................................................................................ 49 
2.9.2  Canada .............................................................................................................. 49 
2.9.3  Korea ................................................................................................................ 50 
2.9.4  No rway ............................................................................................................. 50 
2.9.5  Saudi Arabia ...................................................................................................... 50 
2.9.6  The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu ...................... 51 
2.9.7  Turkey .............................................................................................................. 51 
3  ISSUES RAISED IN  THIS APPEAL ...................................................................... 51  
4  BACKGROUND AND OVERVIEW OF  THE MEASURES AT ISSUE ........................... 52  
4.1  The trade-related requirements  (TRRs) and the TRRs measure ........................ 53  
4.2  Advanced Sworn Import De claration (DJAI) procedure .................................... 57  
5  ANALYSIS OF THE APPELLATE BODY ................................................................. 61  
5.1  The Panel's term s of refe rence ......................................................................... 61  
5.1.1  Argentin a's appe al .............................................................................................. 61 
5.1.1.1  Background ........................................................................................................ 61 
5.1.1.2  Articles 4.4 and 6.2 of the DSU ............................................................................. 62 
5.1.1.3  Identification of the single TRRs measure as a "measure at issue" .............................. 65 
5.1.2  The European Union's other appeal ........................................................................ 69 
5.1.2.1  Background ........................................................................................................ 69 
5.1.2.2  Article 6.2 of the DSU .......................................................................................... 71 
5.1.2.3  Identification of  the measures  at issue ................................................................... 72 
5.1.2.4  The 23 specific instances of application of the TRRs as measures at issue .................... 74 
5.1.2.5  Whether the 23 measures ex panded the scope of the dispute .................................... 82 
5.1.2.6  The European Unio n's conditiona l appeal ................................................................ 83 
5.1.2.7  Overall conclusion on th e European Union' s other ap peal .......................................... 83 
5.2  Identification of the sing le unwritten TRRs measure ........................................ 83  
5.2.1  Intr oducti on ....................................................................................................... 83 WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5.2.2  The joint claims ag ainst the TRRs  measure ............................................................. 84 
5.2.2.1  Ascertaining the existe nce of an unwri tten measure ................................................. 85 
5.2.2.2  The complainants' characterization of the measure at issue ....................................... 88 
5.2.2.3  The Panel's evaluation of the TRRs measure ............................................................ 89 
5.2.2.4  Conclusions ........................................................................................................ 95 
5.2.3  Article 11 of the DSU – Japan's "as such" claims ...................................................... 96 
5.2.3.1  The evidentiary difficul ties confronted by the Panel .................................................. 97 
5.2.3.2  The precise conten t of the TRRs  measure ............................................................... 98 
5.2.3.3  The general and prospective application of the TRRs measure .................................. 100  
5.2.3.4  Conclusion ....................................................................................................... 102  
5.2.4  The Panel's exercise of judicial economy on Japan's claim under Article X:1 of 
the GATT 1994 ................................................................................................. 103  
5.2.5  Overall conclusions on the TRRs measure ............................................................. 106  
5.3  The DJAI procedure: Articles  VIII and XI:1 of  the GATT 1994 ........................ 107  
5.3.1  Introd uction ..................................................................................................... 107  
5.3.2  The Panel's findings in connection with  the interpretation of Article XI:1 of the 
GATT 1994 ....................................................................................................... 108  
5.3.3  Article XI:1 of the GA TT 1994 ............................................................................. 109  
5.3.4  Argentina's claim that the Panel erred in its interpretation of Article XI:1 of the 
GATT 1994 ....................................................................................................... 111  
5.3.5  Argentina's claim that the Panel erred in its assessment of the scope of 
application of Article VIII of the GATT 1994  .......................................................... 117  
5.3.6  Application of Article XI:1 of the GATT 1994 .......................................................... 122  
5.3.6.1  The Panel's findings in connection with the application of Article XI:1 of the 
GATT 1994 to the DJ AI procedure ....................................................................... 122  
5.3.6.2  Argentina's claim that the Panel erred in its application of Article XI:1 of the 
GATT 1994 to the DJ AI procedure ....................................................................... 123  
5.3.7  Overall conclusions on the DJAI procedure ............................................................ 127  
6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT IN 
DS438 ........................................................................................................ EU-128 
6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT IN 
DS444 ........................................................................................................ US-130 
6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT IN 
DS445 ...................................................................................................... JPN-131  
 
ANNEX 1 Notification of an Appeal by Argentina, WT/DS438/15 / WT/DS444/14 / 
WT/DS445/14  ................................................................................................ 133 
ANNEX 2 Notification of an Other Appeal by the European Union, WT/DS438/16 .................... 136 
ANNEX 3 Notification of an Other Appeal by Japan, WT/DS445/15 ....................................... 137 
ANNEX 4 Appellate Body Procedural Ruling of 3 Octo ber 2014 ............................................ 138 WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  ABBREVIATIONS USED IN THESE REPORTS 
Abbreviation Description 
AFIP Federal Public Revenue Administration ( Administración Federal de 
Ingresos Públicos ) 
Anti-Dumping Agreement Agreement on Implementation of Ar ticle VI of the General Agreement 
on Tariffs and Trade 1994 
CBD customs bond directive 
CIs Certificados de Importación 
complainants European Union, United States, and Japan 
DJAI Advance Sworn Import Declaration ( Declaración Jurada Anticipada de 
Importación ) 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes 
EU Panel Report Panel Report, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/R 
EU Panel Request Request for the Establishment of a Panel by the European Union, 
WT/DS438/11 
First Preliminary Ruling First Preliminary Ruling of the Panel of 16 September 2013, 
reproduced in Annex D-1 to the Panel Reports, WT/DS438/R/Add.1 / 
WT/DS444/R/Add.1 / WT/DS445/R/Add.1 
GATT 1994 General Agreement on Tariffs and Trade 1994 
Import Licensing 
Agreement Agreement on Import Licensing Procedures 
Japan Panel Report Panel Report, Argentina – Measures Affecting the Importation of 
Goods , WT/DS445/R 
Japan Panel Request Request for the Establishment of a Panel by Japan, WT/DS445/10 
LA/MSF launch aid/member State financing 
Panel Reports Panel Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/R / WT/DS444/R / WT/DS445/R 
PEI 2020 Ministry of Industry of Argentina, Argentina's Industrial Strategic Plan 
2020 ( Plan Estratégico Industrial 2020 ) (Panel Exhibits ARG-51 and 
JE-749) 
SCI Secretariat of Domestic Trade ( Secretaría de Comercio Interior ) 
SCM Agreement Agreement on Subsidies and Countervailing Measures 
Second Preliminary Ruling Second Preliminar y Ruling of the Panel of 20 November 2013, 
reproduced in Annex D-2 to the Panel Reports, WT/DS438/R/Add.1 / 
WT/DS444/R/Add.1 / WT/DS445/R/Add.1 
SIM system MARIA information system ( Sistema Informático MARIA ) 
SMEs small and medium-sized enterprises 
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures 
TBT Agreement Agreement on Technical Barriers to Trade 
TRRs trade-related requirements WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Abbreviation Description 
TRRs measure a combination of one or more TRRs constituting a single unwritten 
measure 
US Panel Request Request for the Establishment of a Panel by the United States, 
WT/DS444/10 
US Panel Report Panel Report, Argentina – Measures Affecting the Importation of 
Goods , WT/DS444/R 
Vienna Convention Vienna Convention on the Law of Treaties, done at Vienna, 23 May 
1969, UN Treaty Series, Vol. 1155, p. 331 
WCO World Customs Organization 
WCO SAFE Framework World Customs Organization's SAFE Framework of Standards to 
Secure and Facilitate Global Trade 
Working Procedures Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 
2010 
WTO World Trade Organization 
 WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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CASES CITED IN THESE REPORTS 
Short Title Full Case Title and Citation 
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, p. 515 
Argentina – Hides and 
Leather Panel Report, Argentina – Measures Affecting th e Export of Bovine Hides and 
Import of Finished Leather , WT/DS155/R and Corr.1, adopted 16 February 
2001, DSR 2001:V, p. 1779 
Argentina – Textiles and 
Apparel Appellate Body Report, Argentina – Measures Affect ing Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/AB/R and Corr.1, adopted 
22 April 1998, DSR 1998:III, p. 1003 
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327 
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R, adopted 20 Augu st 1999, DSR 1999: III, p. 1161 
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body 
Report WT/DS332/AB/R, DSR 2007:V, p. 1649 
Canada – Provincial Liquor 
Boards (EEC) GATT Panel Report, Canada – Import, Distribution and Sale of Alcoholic Drinks 
by Canadian Provincial Marketing Agencies , L/6304, adopted 22 March 1988, 
BISD 35S, p. 37 
Canada – Provincial Liquor 
Boards (US) GATT Panel Report, Canada – Import, Distributi on and Sale of Certain 
Alcoholic Drinks by Provincial Marketing Agencies , DS17/R, adopted 
18 February 1992, BISD 39S, p. 27 
Canada – Renewable Energy / 
Canada – Feed-in Tariff Program  Appellate Body Reports, Canada – Certain Measures Affecting the Renewable 
Energy Generation Sector / Canada – Me asures Relating to the Feed-in Tariff 
Program , WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013 
Canada – Wheat Exports and 
Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R, adopted 27 September 2004, 
DSR 2004:VI, p. 2739 
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R / WT/DS395/AB/R / 
WT/DS398/AB/R, adopted 22 February 2012, DSR 2012:VII, p. 3295 
China – Raw Materials  Panel Reports, China – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R / WT/DS395/R / WT/DS398/R / Add.1 and Corr.1, 
adopted 22 February 2012, as modified by Appellate Body Reports 
WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, DSR 2012:VII, 
p. 3501 
Colombia – Ports of Entry Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry , 
WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535 
Dominican Republic – Import 
and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the Importation and 
Internal Sale of Cigarettes , WT/DS302/R, adopted 19 May 2005, as modified 
by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425 
EC – Approval and Marketing 
of Biotech Products Panel Reports, European Communities – Measures  Affecting the Approval and 
Marketing of Biotech Products , WT/DS291/R / WT/DS292/R / WT/DS293/R / 
Add.1 to Add.9 and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847 
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, 
Sale and Distribution of Bananas , WT/DS27/AB/R, adopted 25 September 
1997, DSR 1997:II, p. 591 
EC – Bananas III Panel Reports, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas (EC – Bananas III) , WT/DS27/R/ECU (Ecuador)  / 
WT/DS27/R/GTM, WT/DS27/R/HND (Guatemala and Honduras)  / 
WT/DS27/R/MEX (Mexico)  / WT/DS27/R/USA (US), adopted 25 September 
1997, as modified by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, 
p. 695 to DSR 1997:III, p. 1085 WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Short Title Full Case Title and Citation 
EC – Export Subsidies on 
Sugar Appellate Body Report, European Communities – Export Subsidies on Sugar , 
WT/DS265/AB/R, WT/DS266/AB/R, WT /DS283/AB/R, adopted 19 May 2005, 
DSR 2005:XIII, p. 6365 
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping 
Measures on Certain Iron or  Steel Fasteners from China , WT/DS397/AB/R, 
adopted 28 July 2011, DSR 2 011:VII, p. 3995 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, p. 135 
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/AB/R, adopted 23 July 
1998, DSR 1998:V, p. 2031 
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R / 
WT/DS401/AB/R, adopted 18 June 2014 
EC – Selected Customs 
Matters Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791 
EC and certain member 
States – Large Civil Aircraft Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R, adopted 
1 June 2011, DSR 2011:I, p. 7 
EC and certain member 
States – Large Civil Aircraft Panel Report, European Communities and Certai n Member States – Measures 
Affecting Trade in Large Civil Aircraft , WT/DS316/R, adopted 1 June 2011, as 
modified by Appellate Body Report, WT/DS316/AB/R, DSR 2011:II, p. 685 
EEC – Minimum Import Prices GATT Panel Report, EEC – Programme of Minimum Import Prices, Licences 
and Surety Deposits for Certain Processed Fruits and Vegetables , L/4687, 
adopted 18 October 1978, BISD 25S, p. 68 
India – Autos Panel Report, India – Measures Affecting the Automotive Sector , 
WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, p. 1827 
India – Patents (US) Appellate Body Report,  India – Patent Protection  for Pharmaceutical and 
Agricultural Chemical Products, WT /DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, p. 9 
India – Quantitative 
Restrictions Panel Report, India – Quantitative Restrictions  on Imports of Agricultural, 
Textile and Industrial Products , WT/DS90/R, adopted 22 September 1999, 
upheld by Appellate Body Report WT/DS90/AB/R, DSR 1999:V, p. 1799  
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile 
Industry , WT/DS54/R, WT/DS55/R, WT/DS 59/R, WT/DS64/R and Corr.1 and 
Corr.2, adopted 23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201 
Japan – Alcoholic 
Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R, 
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97 
Japan – Apples Panel Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/R, adopted 10 December 2003, upheld by Appellate Body Report 
WT/DS245/AB/R, DSR 2003:IX, p. 4481 
Japan – Semi-Conductors GATT Panel Report, Japan – Trade in Semi-Conductors, L/6309, adopted 
4 May 1988, BISD 35S, p. 116 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguar d Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, 
DSR 2000:I, p. 3 
Korea – Various Measures on 
Beef Panel Report, Korea – Measures Affecting Import s of Fresh, Chilled and Frozen 
Beef, WT/DS161/R, WT/DS169/R, adopted 10 January 2001, as modified by 
Appellate Body Report WT/DS161/AB/R, WT/DS169/AB/R, DSR 2001:I, p. 59 
Mexico – Anti-Dumping 
Measures on Rice Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted 
20 December 2005, DSR 2005:XXII, p. 10853 WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Short Title Full Case Title and Citation 
Mexico – Corn Syrup 
(Article 21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United Stat es – Recourse to Article 21.5 of the 
DSU by the United States , WT/DS132/AB/RW, adopted 21 November 2001, 
DSR 2001:XIII, p. 6675 
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, 
DSR 2000:X, p. 4793 
US – Anti-Dumping and 
Countervailing Duties (China) Appellate Body Report, United States – Definitive Anti-Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R, 
adopted 25 March 2011, DSR 2011:V, p. 2869 
US – Anti-Dumping and 
Countervailing Duties (China) Panel Report, United States – Definitive An ti-Dumping and Countervailing 
Duties on Certain Products from China , WT/DS379/R, adopted 25 March 2011, 
as modified by Appellate Body Report WT/DS379/AB/R, DSR 2011:VI, p. 3143 
US – Carbon Steel Appellate Body Report, United States – Countervai ling Duties on Certain 
Corrosion-Resistant Carbon Stee l Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 
p. 3779 
US – Carbon Steel (India) 
 Appellate Body Report, United States – Countervai ling Measures on Certain 
Hot-Rolled Carbon Steel Flat Products from India , WT/DS436/AB/R, adopted 
19 December 2014 
US – Certain EC Products Appellate Body Report, United States – Import Meas ures on Certain Products 
from the European Communities , WT/DS165/AB/R, adopted 10 January 2001, 
DSR 2001:I, p. 373 
US – Continued Zeroing Appellate Body Report, United States – Continued Ex istence and Application of 
Zeroing Methodology , WT/DS350/AB/R, adopted 19 February 2009, 
DSR 2009:III, p. 1291 
US – COOL Appellate Body Reports, United States – Certain Country of Origin Labelling 
(COOL) Requirements , WT/DS384/AB/R / WT/DS386/AB/R, adopted 23 July 
2012, DSR 2012:V, p. 2449 
US – COOL Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R / WT/DS386/R, adopted 23 July 2012, as modified 
by Appellate Body Reports WT/DS 384/AB/R / WT/DS386/AB/R, DSR 2012:VI, 
p. 2745 
US – Corrosion-Resistant 
Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties 
on Corrosion-Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3 
US – Countervailing Measures 
(China) Appellate Body Report, United States – Countervailing Duty Measures on 
Certain Products from China , WT/DS437/AB/R, circulated to WTO Members 
18 December 2014 [adoption pending] 
US – Customs Bond Directive Panel Report, United States – Customs Bond Directive for Merchandise 
Subject to Anti-Dumping/Countervailing Duties , WT/DS345/R, adopted 
1 August 2008, as modified by Appellate Body Report WT/DS343/AB/R / WT/DS345/AB/R, DSR 2008:VIII, p. 2925 
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R, adopted 20 April 
2005, DSR 2005:XII, p. 5663 (Corr.1, DSR 2006:XII, p. 5475) 
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 
p. 3 
US – Oil Country Tubular 
Goods Sunset Reviews Appellate Body Report, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, p. 3257 
US – Orange Juice (Brazil) Panel Report, United States – Anti-Dumping Ad ministrative Reviews and Other 
Measures Related to Imports of Certain Orange Juice from Brazil , 
WT/DS382/R, adopted 17 June 2011, DSR 2011:VII, p. 3753 WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Short Title Full Case Title and Citation 
US – Shrimp (Thailand) Panel Report, United States – Measures Relating to Shrimp from Thailand , 
WT/DS343/R, adopted 1 August 2008, as modified by Appellate Body Report 
WT/DS343/AB/R / WT/DS345/AB/R, DSR 2008:VII, p. 2539 
US – Shrimp (Thailand) / 
US – Customs Bond Directive Appellate Body Report, United States – Measures Relating to Shrimp from 
Thailand / United States – Customs Bond  Directive for Merchandise Subject to 
Anti-Dumping/Countervailing Duties , WT/DS343/AB/R / WT/DS345/AB/R, 
adopted 1 August 2008, DSR 2008:VII,  p. 2385 / DSR 2008:VIII, p. 2773 
US – Shrimp (Viet Nam) Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from 
Viet Nam , WT/DS404/R, adopted 2 September 2011, DSR 2011:X, p. 5301 
US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/AB/R, adopted 
13 June 2012, DSR 2012:IV, p. 1837 
US – Tuna II (Mexico) Panel Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/R, adopted 
13 June 2012, as modified by Appellate Body Report WT/DS381/AB/R, DSR 
2012:IV, p. 2013 
US – Underwear Appellate Body Report, United States – Restrictions  on Imports of Cotton and 
Man-made Fibre Underwear , WT/DS24/AB/R, adopted 25 February 1997, 
DSR 1997:I, p. 11 
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3 
US – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton , WT/DS267/R, 
Add.1 to Add.3 and Corr.1, adopted 21 March 2005, as modified by Appellate Body Report WT/DS267/AB/R, DSR 2005:II, p. 299 
US – Upland Cotton 
(Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – 
Recourse to Article 21.5 of the DSU by Brazil , WT/DS267/AB/RW, adopted 
20 June 2008, DS R 2008:III, p. 809 
US – Wheat Gluten Appellate Body Report, United States – Definitive  Safeguard Measures on 
Imports of Wheat Gluten fro m the European Communities , WT/DS166/AB/R, 
adopted 19 January 2001, DSR 2001:II, p. 717 
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure A ffecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R, adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323 
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted 
9 May 2006, and Corr.1, DSR 2006:II, p. 417 
US – Zeroing (EC) Panel Report, United States – Laws, Regu lations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R, adopted 9 May 2006, 
as modified by Appellate Body Report WT/DS294/AB/R, DSR 2006:II, p. 521 
US – Zeroing (Japan) 
(Article 21.5 – Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW, adopted 31 Augu st 2009, DSR 2009:VIII, p. 3441 WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
Argentina – Measures Affecting the Importation of Goods 
 
Argentina, Appellant /Appellee  
European Union, Other Appellant /Appellee / 
 Third Participant
1 
Japan, Other Appellant /Appellee / 
 Third Participant2 
United States, Appellee /Third Participant3 
 
Australia, Third Participant  
Canada, Third Participant  
China, Third Participant  
Ecuador, Third Participant  
Guatemala, Third Participant  
India, Third Participant  
Israel, Third Participant 
Korea, Third Participant  
Norway, Third Participant  
Saudi Arabia, Third Participant  
Switzerland, Third Participant  
Separate Customs Territory of Taiwan, Penghu, 
 Kinmen and Matsu, Third Participant  
Thailand, Third Participant  
Turkey, Third Participant 
 AB-2014-9 
 
Division:  
 Chang, Presiding Member Bhatia, Member 
Ramírez-Hernández, Member 
 
  1  INTRODUCTION 
1.1.  Argentina appeals certain issues of law and legal interpretations developed in the Panel 
Reports, Argentina – Measures Affecting the Importation of Goods
4 (Panel Reports). The 
European Union appeals certain issues of law and legal interpretations developed in the Panel 
Report WT/DS438/R (EU Panel Report), and Japan appeals certain issues of law and legal 
interpretations developed in the Panel Report WT/DS445/R (Japan Panel Report).5 The Panel was 
established to consider complaints by the European Union6, the United States7, and Japan8 (the 
complainants) with respect to measures taken by Argentina affecting the importation of goods.9 
1.2.  Among the measures challenged by the complainants were: (i) Argentina's imposition on 
economic operators of one or more trade-relate d requirements (TRRs) constituting a single 
                                               
1 In DS444 and DS445. 
2 In DS438 and DS444. 
3 In DS438 and DS445. 
4 WT/DS438/R (EU Panel Report), WT/DS444/R (US Pa nel Report), WT/DS445/R (Japan Panel Report), 
22 August 2014. The Panel issued its findings in the fo rm of a single document containing three separate 
reports, with a common cover page, ta ble of contents, and sections 1 through 6, and with separate conclusions 
and recommendations in respect of each of the disputes initiated by the European Union, the United States, and Japan. We refer to these three report s collectively as the "Panel Reports". 
5 The United States does not appeal the Panel Report WT/DS444/R (US Panel Report). 
6 Request for the Establishment of a Panel by th e European Union, WT/DS438/11 (EU Panel Request). 
7 Request for the Establishment of a Panel by th e United States, WT/DS444/10 (US Panel Request). 
8 Request for the Establishment of a Panel by  Japan, WT/DS445/10 (Japan Panel Request). 
9 At its meeting held on 28 January 2013, the Dispute Settlement Body (DSB) established a single panel 
in accordance with Ar ticles 6 and 9.1 of the Understanding on Ru les and Procedures Gove rning the Settlement 
of Disputes (DSU). (Pan el Reports, para. 1.11) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
- 12 - 
 
  unwritten measure (TRRs measure)10; and (ii) the procedure through which Argentina requires an 
Advance Sworn Import Declaration ( Declaración Jurada Anticipada de Importación ) (DJAI) for any 
imports for consumption in Argentina.11  
1.3.  The complainants identified the following five TRRs: (i) to export a certain value of goods 
from Argentina related to the value of imports; (ii) to limit the volume of imports and/or reduce 
their price; (iii) to refrain from repatriating funds from Argentina to another country; (iv) to make or increase investments in Argentina (including in production facilities); and/or (v) to incorporate 
local content into domestically produced goods.
12 
1.4.  According to the complainants, the single TRRs measure: 
a. consists of a combination of one or more of the five identified TRRs;  
b. is an unwritten measure that is not stipulated in any published law, regulation, or 
administrative act, but is instead either reflected in agreements signed between specific 
economic operators and the Argentine Government, or contained in letters addressed by economic operators to the Argentine Government; 
c. is imposed on economic operators in Argentina as a condition to import or to obtain 
certain benefits; 
d. is enforced by withholding permission to import through, inter alia , the DJAI procedure; 
and 
e. is imposed by the Argentine Government with the objective of eliminating trade deficits 
and increasing import substitution.
13 
1.5.  The European Union claimed before the Panel that the TRRs are inconsistent with Argentina's 
obligations under Articles XI:1 and III:4 of the General Agreement on Tariffs and Trade 1994 
(GATT 1994), as well as under Article X:1 of the GATT 1994. The European Union also claimed, in the alternative, that the application of one or more TRRs in certain specific instances is 
inconsistent with Argentina's obligations under Article XI:1 and/or Article III:4 of the GATT 1994.
14 
The United States, for its part, claimed that the TRRs are inconsistent with Argentina's obligations under Articles XI:1 and X:1 of the GATT 1994.
15 Japan claimed that the TRRs are inconsistent with 
Argentina's obligations under Articles XI:1, III:4, and X:1 of the GATT 1994, in each of the 
following three respects: (i) the TRRs as an unwritten rule or norm as such; (ii) the TRRs as an unwritten practice or policy, as confirmed by the systematic application of the measure; and 
                                               
10 EU Panel Request, pp. 3- 4; US Panel Request, p. 4; Japan Pa nel Request, pp. 3- 4; Panel Reports, 
paras. 6.126-6.128. The complainants referred to thes e trade-related requirements (TRRs) in their panel 
requests and in some parts of their submissions as "Restrictive Trad e-Related Requirements" or "RTRRs". For 
uniformity, we refer to these as TRRs, individu ally, and as the TRRs measure, collectively. 
11 Panel Reports, para. 6.364. The European Union, th e United States, and Japan originally identified a 
third measure, the imposition of non-automatic import licences ( Licencias No Automáticas de Importación ) by 
requiring import certificates ( Certificados de Importación ) (CIs)  as a condition for the importation of goods. 
(EU Panel Request, pp. 2-3; US Panel Request, pp. 3-4; Japan Panel Request, pp. 2-3)  However, in their first 
written submissions to the Panel, the complainants indicated that they were no longer pursuing their claims against the CI requirement because, on 25 January 2013,  the Argentine Government had repealed the various 
resolutions containing the CI regime . (European Union's first written submission to the Panel, paras. 15 
and 16; United States' first written submission to the Pane l, fn 6 to para. 7, and para. 17; Japan's first written 
submission to the Panel, fn 34 to para. 15) 
12 Panel Reports, para. 6.121 (referring to EU Panel re quest, p. 3; US Panel Request, p. 4; and Japan 
Panel Request, p. 3). 
13 Panel Reports, para. 6.125. 
14 Panel Reports, para. 2.1.b (referring to European  Union's first written submission to the Panel, 
paras. 22, 328, 385, and 491; and response to Panel question No. 1). 
15 Panel Reports, para. 2.3.b (referring to United Stat es' first written submission  to the Panel, paras. 3 
and 211; and second written submission to the Panel, paras. 5 and 128). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  (iii) the application of the TRRs in particular instances, as identified in the complainants' 
submissions.16 
1.6.  With respect to the DJAI procedure, this measure was implemented by Argentina's Federal 
Public Revenue Administration ( Administración Federal de Ingresos Públicos ) (AFIP) on 
5 January 2012 by means of AFIP General Resolution 3252/2012.17 With the exception of certain 
limited cases, Argentina requires importers to file a DJAI through which they provide necessary information prior to the issuance of an order form, purchase order, or other similar document 
necessary for the purchase of items from abroad that are destined for consumption in Argentina.
18 
1.7.  The European Union claimed before the Panel that the DJAI procedure is inconsistent with 
Argentina's obligations under Articles XI:1, X:1, and X:3(a) of the GATT 1994, as well as under Articles 1.3, 1.4(a), 1.6, 3.2, 3.3, and 3.5(f) of the Agreement on Import Licensing Procedures 
(Import Licensing Agreement).
19 For its part, the United States claimed that the DJAI procedure is 
inconsistent with Argentina's obligations under Articles XI:1 and X:3(a) of the GATT 1994, as well as under Articles 1.4(a), 1.6, 3.2, 3.3, 3.5(f), 5.1, 5.2, 5.3, and 5.4 of the Import Licensing 
Agreement.
20 Japan claimed that the DJAI procedure is inconsistent with Argentina's obligations 
under Articles XI:1, X:3(a), and X:1 of the GATT 1994, as well as under Articles 1.3, 1.4(a), 1.6, 3.2, 3.3, 3.5(f), 5.1, 5.2, 5.3, and 5.4 of the Import Licensing Agreement.
21 
1.8.  In response, Argentina requested the Panel to reject the complainants' claims on the 
following grounds: 
a. the DJAI is a customs formality established in accordance with Article VIII of the 
GATT 1994 and the World Customs Organizati on's (WCO) SAFE Framework of Standards 
to Secure and Facilitate Global Trade (WCO SAFE Framework). Alternatively, the 
complainants failed to establish that the DJAI procedure is a quantitative restriction under Article XI:1 of the GATT 1994, or is in breach of Articles X:3(a) and X:1 of the 
GATT 1994
22; 
b. the DJAI is not an import licence. Even if it were, it is a procedure used for customs 
purposes, and is, therefore, not within the scope of the Import Licensing Agreement. 
Alternatively, the complainants have failed to establish that the DJAI is in breach of the 
Import Licensing Agreement23; and 
c. the TRRs are outside the Panel's terms of reference, and the complainants failed to 
prove the existence of an unwritten "overarc hing" measure of general and prospective 
application that would support their claims against the TRRs.24 
                                               
16 Panel Reports, para. 2.4.b (refe rring to Japan's first written subm ission to the Panel, para. 218; 
second written submission to the Panel, paras. 7, 20, and 134; and responses to Panel questions Nos. 2 and 44). 
17 AFIP General Resolution 3252/2012 is contained in Panel Exhibits JE-15 and ARG-6. 
18 Panel Reports, para. 6.364.  
19 Panel Reports, para. 2.1.a (referring to European  Union's first written submission to the Panel, 
paras. 21 and 491). 
20 Panel Reports, para. 2.3.a (referri ng to United States' first written submission to the Panel, paras. 3 
and 211; and second written submission to the Panel, para. 128). 
21 Panel Reports, para. 2.4.a (referring to Japan's first written submission to the Panel, para. 218; 
second written submission to the Panel, paras. 7, 39, and 134; and response to Panel question No. 3). 
22 Panel Reports, para. 2.5.a (referri ng to Argentina's first written subm ission to the Panel, paras. 14, 
18, 21, 164, 191, 195, 196-217, 257, 263, and 313-359; opening statement at the first Panel meeting, paras. 52-61 and 74-83; responses to Panel questions Nos.  21, 34, and 40; second written submission to the 
Panel, paras. 125-161, 199, 200, and 202-206; opening stat ement at the second Panel meeting, paras. 47-61; 
and closing statement at the second Panel meeting, para. 7). 
23 Panel Reports, para. 2.5.b (referring to Argentina' s first written submission to the Panel, paras. 268, 
269, and 273-296; opening statement at the first Panel meeting, paras. 62-73; second written submission to the Panel, paras. 162 and 165-201; opening statement at the second Panel meeting, paras. 62-77; and closing 
statement at the second Panel meeting, paras. 8 and 9). 
24 Panel Reports, para. 2.5.c (referri ng to Argentina's first written submission to the Panel, paras. 15 
and 113-146; opening statement at the first Panel meeting,  paras. 40 and 42-48; second written submission to 
the Panel, paras. 72-117; opening statement at the second Panel meeting, paras. 13-45; and closing 
statement at the second Panel meeting, paras. 3-6).  WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
- 14 - 
 
  1.9.  In its first written submission to the Panel, Argentina challenged the identification of the TRRs 
as a measure at issue in accordance with Articl es 6.2 and 7.1 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (DSU), and requested the Panel to issue a preliminary ruling that such measure was outside it s terms of reference. Argentina argued that the 
complainants' requests for consultations did not identify any measures or claims in relation to the 
TRRs, and the subsequent identification of thes e TRRs in the complainants' requests for the 
establishment of a panel impermissibl y expanded the scope of the dispute.
25 In addition, Argentina 
claimed that the unwritten "overarching measure" described in the Request for the Establishment 
of a Panel by the European Union (EU Panel Request) was outside the Panel's terms of reference because none of the complainants' requests for consultations referred to it.
26 Lastly, Argentina 
contended that, although all three complainants ha d raised claims against the TRRs "as applied", 
only the EU Panel Request identified the specific  TRRs that were the object of such claims.27 In 
Argentina's view, the inclusion in the EU Panel Request of a list of instances of application of the TRRs was an impermissible departure from its request for consultations, which did not identify at 
least some of these specific instances of app lication that were the object of its claims.
28 
1.10.  The Panel issued a preliminary ruling on 16 September 201329 (First Preliminary Ruling), 
just before the first Panel meeting.30 I n  t h i s  R u l i n g ,  w h i c h  f o r m s  a n  i n t e g r a l  p a r t  o f  t h e  P a n e l  
Reports31, the Panel found that: 
a. the TRRs were identified by the complainants as a measure at issue in their respective 
requests for consultations, their inclusion in the panel requests was not inappropriate, and these measures are within the Panel's terms of reference; and 
b. the characterization of the TRRs as a single "overarching measure" in the complainants' 
panel requests did not expand the scope or change the essence of the dispute.
32 
1.11.  The Panel did not consider it necessary or  appropriate to rule on Argentina's argument 
regarding the alleged non-identification of the complainants' "as applied" claims. Instead, the 
Panel decided to consider this matter further in the course of the proceedings.33 
1.12.  The Panel sought the views of the parties regarding the circulation of the First Preliminary 
Ruling to Members of the World Trade Organization (WTO).34 While the complainants expressed no 
objection35, Argentina did not agree with such circulation.36 The third parties, however, were 
provided with copies of the First Preliminary Ruling.37 
1.13.  During the Panel's first meeting with the parties, Argentina requested the Panel to resolve 
two outstanding issues concerning the Panel's terms of reference, namely: (i) Japan's and the 
United States' "as applied" claims; and (ii) the European Union's 23 specific instances of 
                                               
25 Argentina's first written submission to the Panel, paras. 112-146 and 360. 
26 First Preliminary Ruling, para. 2.3 (referring to Argentina's first written submission to the Panel, 
paras. 135 and 136). 
27 First Preliminary Ruling, para. 2.4 (referring to Argentina's first written submission to the Panel, 
paras. 129-134 and 138). 
28 First Preliminary Ruling, para. 2.4 (referring to Argentina's first written submission to the Panel, 
para. 133). 
29 The First Preliminary Ruling is reproduced in Annex D-1 to the Panel Re ports, WT/DS438/R/Add.1 / 
WT/DS444/R/Add.1 / WT/DS445/R/Add.1, pp. D-2 to D-13. 
30 Argentina requested the Panel to issue a prelimin ary ruling "preferably after the First Substantive 
Meeting of the Panel with the Parties". (First Prelimin ary Ruling, para. 1.1 (quoting Argentina's first written 
submission to the Panel, para. 146 )) The European Union and Japan cont ended that Argent ina's request was 
untimely, considering that Argentina should have raised  its concerns regarding the requests for consultations 
at an earlier stage. Thus, the European Union and Japan requested the Panel to rule on Argentina's request as 
soon as possible, and before the date  of the first Panel meeting. (First Preliminary Ruling, paras. 2.6-2.8)  
31 Panel Reports, paras. 1.36 and 6.15; First Preliminary Ruling, para. 4.3. 
32 First Preliminary Ruling, para. 4.1. a and b; Panel Reports, para. 6.14. 
33 First Preliminary Ruling, para. 3.42. 
34 Second Preliminary Ruling, para. 1.7; Panel Reports, para. 1.34. 
35 Second Preliminary Ruling, para. 1.7 (referring to complainants' joint e-mail communication to the 
Panel, 17 September 2013); Panel Reports, para. 1.35. 
36 Second Preliminary Ruling, para. 1.7 (referring to Argentina's e-mail communication to the Panel, 
19 September 2013); Panel Reports, para. 1.35. 
37 Panel Reports, para. 6.15. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
- 15 - 
 
  application of the TRRs.38 Thus, on 20 November 2013, the Panel issued its Second Preliminary 
Ruling39 following the second written submissions, bu t before the second Panel meeting. In its 
Second Preliminary Ruling, which forms an integral part of the Panel Reports40, the Panel found 
that: 
a. the complainants' panel requests properly identified the alleged TRRs as measures at 
issue in these disputes, and these measures are part of the Panel's terms of reference; and 
b. the 23 measures described by the European Union in section 4.2.4 of its first written 
submission to the Panel as "specific instances"  of application of the alleged TRRs do not 
constitute "measures at issue" in these disputes.
41 
1.14.  The Panel again invited the parties to expr ess their views regarding the circulation of the 
two Preliminary Rulings. The complainants submitted a joint communication expressing no 
objection thereto42, but Argentina once more objected to the circulation of both preliminary 
rulings.43 
1.15.  During the Panel proceedings, the Panel considered several procedural issues. First was 
Canada's request for enhanced third party rights44, which the Panel declined.45 Second was the 
parties' request for the adoption of additional proc edures for the protection of business confidential 
information46, which were not adopted.47 Finally was the issue of consultations with the WCO for 
clarification of certain aspects relating to the WCO SAFE Framework.48  
1.16.  The Panel Reports were circulated to WTO Members on 22 August 2014. In each of the 
Panel Reports, with respect to the TRRs measure, the Panel found that: 
a. the complainants properly identified the alleged TRRs in their requests for consultations 
as well as in their panel requests and that, therefore, these actions are part of the Panel's terms of reference
49; 
b. the characterization of the TRRs as a single measure in the complainants' panel requests 
did not expand the scope or change the essence of the dispute50; 
                                               
38 Second Preliminary Ruling, paras. 2.3-2.5. 
39 The Second Preliminary Ruling is reproduced in Annex D-2 to the Panel Reports, WT/DS438/R/Add.1 / 
WT/DS444/R/Add.1 / WT/DS445/R/Add.1, pp. D-14 to D-28. 
40 Panel Reports, paras. 1.36 and 6.15; Second Preliminary Ruling, para. 5.2. 
41 Second Preliminary Ruling, para. 5.1.a and b; Panel Reports, para. 6.14. 
42 Panel Reports, para. 1.36 (referring to the complainants' joint e-mail communication to the Panel, 
26 November 2013). 
43 Panel Reports, para. 1.36 (referring to Arge ntina's e-mail communication to the Panel, 
26 November 2013). 
44 Canada requested enhanced third party rights to: (i ) receive copies of all submissions and statements 
of the parties preceding the issuance of the Panel's inte rim report; and (ii) be pres ent for the entirety of all 
substantive meetings of the Panel with the parties. (Panel Reports, para. 1.23) 
45 The Panel reasoned that Canada failed to explain,  among other things, why the matter at issue would 
have a significant economic or trade po licy effect for Canada that is diffe rent from that of other WTO Members, 
and why the third party rights provided for in the DSU woul d not be sufficient for its interests to be fully taken 
into account. (Panel Reports, para. 1.24) 
46 Panel Reports, para. 1.25. 
47 The Panel decided not to adopt its proposed special proceedings in view of the fact that none of the 
parties supported their adoption. The United States, Japan, and Argentina expressed concerns about the proposed special procedures, their consistency with the DSU, and their systemic implications. (Panel Reports, 
paras. 1.29 and 1.30) 
48 On 26 November 2013, the Panel sent a communicat ion with a list of questions to the WCO. On 
2 December 2013, the WCO responded to the Panel, and the Panel invited the parties to express their views 
thereon. On 14 January 2014, the Panel received the partie s' comments as part of their responses to the Panel 
questions after the second Panel meeting. (Panel Reports, para. 1.38) 
49 EU Panel Report, para. 7.1.a; US Panel Report , para. 7.5.a; Japan Panel Report, para. 7.9.a. 
50 EU Panel Report, para. 7.1.b; US Panel Report , para. 7.5.b; Japan Panel Report, para. 7.9.b. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
- 16 - 
 
  c. the Argentine authorities' imposition on econ omic operators of one or more of the five 
TRRs identified by the complainants as a condition to import or to obtain certain benefits operates as a single measure (TRRs measure) attributable to Argentina
51; 
d. the TRRs measure constitutes a restriction on the importation of goods and is thus 
inconsistent with Article XI:1 of the GATT 199452; and 
e. an additional finding under Article X:1 of the GATT 1994 regarding the TRRs measure 
was not necessary or useful in resolving the matter at issue; accordingly, the Panel 
refrained from making any findin gs with respect to this claim.53 
1.17.  Additionally, in the EU and Japan Panel Reports, the Panel ruled that: 
a. the 23 measures described by the European Union in section 4.2.4 of its first written 
submission as "specific instances" of application of the TRRs were not precisely identified 
in the EU Panel Request as measures at issue; accordingly, those 23 measures did not 
constitute "measures at issue" in the present dispute54; and  
b. the TRRs measure, with respect to its local content requirement, modifies the conditions 
of competition in the Argentine market, so that imported products are granted less 
favourable treatment than like domestic products; accordingly, the TRRs measure, with respect to its local content requirement, is inconsistent with Article III:4 of the 
GATT 1994.
55 
1.18.  Further, in the Japan Panel Report with respect to Japan's "as such" claims against the 
TRRs measure, the Panel held that: 
Having found that the TRRs measure is inconsistent with Article XI:1 of the 
GATT 1994, as well as with Article III:4 of  the GATT 1994 with respect to the local 
content requirement, and that the TRRs measure is of general and prospective application, the TRRs measure is also inconsistent with the above-mentioned 
provisions "as such".
56 
1.19.  In each of the Panel Reports, with respect to the DJAI procedure, the Panel found that: 
a. the DJAI procedure, irrespective of whether it constitutes an import licence, constitutes a 
restriction on the importation of goods and is thus inconsistent with Article XI:1 of the 
GATT 199457; 
b. having found that the DJAI procedure is inconsistent with Article XI:1 of the GATT 1994, 
an additional finding under the same provision regarding the DJAI procedure considered 
as an import licence was not necessary or useful in resolving the matter at issue; 
accordingly, the Panel refrained from making  any findings with respect to this claim58; 
c. having found that the DJAI procedure is inconsistent with the substantive obligation 
prescribed by Article XI:1 of the GATT 199 4, the question of whether Argentina had 
administered the DJAI procedure in a manner inconsistent with Article X:3(a) of the GATT 1994 or with Articles 1.3, 1.4(a), 1.6, and 3.5(f) of the Import Licensing 
                                               
51 EU Panel Report, para. 7.1.d; US Panel Report , para. 7.5.c; Japan Panel Report, para. 7.9.d. 
52 EU Panel Report, para. 7.1.e; US Panel Report , para. 7.5.d; Japan Panel Report, para. 7.9.e. 
53 EU Panel Report, para. 7.1.g; US Panel Report , para. 7.5.e; Japan Pane l Report, para. 7.9.g. 
54 We note that the Panel included this finding in the Conclusions and Recommendations section of the 
Japan Panel Report notwithstanding that, in its comments on the Interim Reports, Japan requested the Panel to delete this finding from the Conclusions and Recommendati ons with respect to DS445 "as it does not relate to 
Japan's Complaint". (Comments by the Government of Japan on the Panel's Interim Reports (DS438/444/445), 4 June 2014, Appendix 1, p. 23 (referring to para. 7.9.c of the Interim Reports)) 
55 EU Panel Report, para. 7.1.f; Japan Panel Report , para. 7.9.f. 
56 Japan Panel Report, para. 7.9.h. 
57 EU Panel Report, para. 7.2.a; US Panel Report , para. 7.6.a; Japan Panel Report, para. 7.10.a. 
58 EU Panel Report, para. 7.2.b; US Panel Report , para. 7.6.b; Japan Panel Report, para. 7.10.b. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
- 17 - 
 
  Agreement was irrelevant for the resolution of this dispute; accordingly, the Panel 
refrained from making any findin gs in respect of these claims59; 
d. having found that the DJAI procedure is inconsistent with the substantive obligation 
prescribed by Article XI:1 of the GATT 1994, an additional finding regarding the same 
measure under Articles 3.2 and 3.3 of the Import Licensing Agreement was not 
necessary or useful in resolving the matter at issue; accordingly, the Panel refrained from making any findings in re spect of this particular claim
60; and 
e. having found that the DJAI procedure is inconsistent with the substantive obligation 
prescribed by Article XI:1 of the GATT 199 4, the question of whether Argentina had 
failed to notify the DJAI procedure in a manner inconsistent with Article 1.4(a), 5.1, 5.2, 5.3, or 5.4 of the Import Licensing Agreement was irrelevant for the resolution of this 
dispute; accordingly, the Panel refrained from making any findings in respect of these 
particular claims.
61 
1.20.  As for the claims under Article X:1 of the GATT 1994 concerning the DJAI procedure, the 
Panel ruled that an additional finding under Article X:1 of the GATT 1994 regarding the DJAI 
procedure was not necessary or useful in resolving the matter at issue. Thus, the Panel refrained from making any findings with respect to this claim.
62 
1.21.  In each Panel Report, the Panel found that, pursuant to Article 3.8 of the DSU, Argentina 
has nullified or impaired benefits accruing to the European Union, the United States, and Japan, respectively, under that Agreement to the extent that Argentina has acted inconsistently with Article XI:1 of the GATT 1994.
63 The Panel also found that, to the extent that Argentina has acted 
inconsistently with Article III:4 of the GATT 1994,  Argentina has nullified or impaired benefits 
accruing to the European Union and Japan, respectively, under that Agreement.64 
1.22.  In each Panel Report, pursuant to Article 19.1 of the DSU, the Panel recommended that 
Argentina bring the inconsistent measures into conformity with its obligations under the 
GATT 1994.65 
1.23.  On 26 September 2014, Argentina notified the Dispute Settlement Body (DSB), pursuant to 
Articles 16.4 and 17 of the DSU, of its intention to appeal certain issues of law covered in the 
Panel Reports and certain legal interpretations developed by the Panel, and filed a Notice of Appeal
66 and an appellant's submission pursuant to  Rule 20 and Rule 21, respectively, of the 
Working Procedures for Appellate Review67 (Working Procedures). On 1 October 2014, the 
European Union and Japan each notified the DSB, pursuant to Articles 16.4 and 17 of the DSU, of 
its intention to appeal certain issues of law covered, and certain legal interpretations developed by the Panel, in, respectively, the EU Panel Report (WT/DS438/R) and the Japan Panel Report 
(WT/DS445/R) and each filed a Notice of Other Appeal
68 and an other appellant's submission 
pursuant to Rule 23 of the Working Procedures . On 14 October 2014, the European Union, the 
United States, and Japan each filed an appellee's submission.69 On the same day, Argentina filed 
an appellee's submission in DS438 and DS445.70 On 17 October 2014, Australia, Saudi Arabia, and 
the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu each filed a third 
                                               
59 EU Panel Report, para. 7.2.d; US Panel Report , para. 7.6.c; Japan Panel Report, para. 7.10.c. 
60 EU Panel Report, para. 7.2.e; US Panel Report , para. 7.6.d; Japan Panel Report, para. 7.10.d. 
61 EU Panel Report, para. 7.2.f; US Panel Report , para. 7.6.e; Japan Pane l Report, para. 7.10.e. 
62 Panel Reports, paras. 6.488 and 6.489. The Panel's find ing in this regard is included in the EU Panel 
Report as paragraph 7.2.c, but not does not figure in the corresponding section of the Japan Panel Report. In 
the Interim Reports, the Panel included its decision to exercise judicial economy in respect of the Article X:1 
claim in respect of the DJAI procedure in the Conclusions and Recommendations section relating to both the complaint by the European Union and the complaint by Japan. 
63 EU Panel Report, para. 7.3; US Panel Report , para. 7.7; Japan Panel Report, para. 7.11. 
64 EU Panel Report, para. 7.3; Japan Panel Report, para. 7.11. 
65 EU Panel Report, para. 7.4; US Panel Report , para. 7.8; Japan Panel Report, para. 7.12. 
66 WT/DS438/15 / WT/DS444/14 / WT/DS445/14 (a ttached as Annex 1 to these Reports). 
67 WT/AB/WP/6, 16 August 2010.  
68 WT/DS438/16 (attached as Annex 2 to these Reports); WT/DS445/15 (attached as Annex 3 to these 
Reports). 
69 Pursuant to Rule 22 of the Working Procedures.  
70 Pursuant to Rule 23(4) of the Working Procedures. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  participant's submission.71 On the same day, Canada, China, Ecuador, Guatemala, India, Israel, 
Korea, Norway, Thailand, Turkey, and the United States72 each notified its intention to appear at 
the oral hearing as a third participant.73 On 29 October 2014, Switzerland also notified the 
Secretariat of its intention to appear at the oral hearing as a third participant.74 
1.24.  On 29 September 2014, before the Working Schedule in this appeal had been 
communicated to the participants and third participants, the Appellate Body received a letter from Japan requesting that the oral hearing not be scheduled between 3-5 November 2014 on account 
of a scheduling conflict of a key member of its litigation team during this period. On the same day, 
the Appellate Body invited the participants and th ird participants to comment on Japan's request. 
On 1 October 2014, Argentina, the European Union, and the United States submitted their comments. Though none of the participants ob jected to Japan's request, Argentina and the 
European Union each indicated their own schedu ling constraints and requested that the oral 
hearing not be held on 27-31 October and 11-12 November 2014, respectively. For its part, the United States expressed a preference for the oral hearing to be held within 45 days of the date of 
filing of the Notice of Appeal, and noted that an oral hearing scheduled after 21 November 2014 
would cause a scheduling conflict for its lead counsel. On 3 October 2014, the Appellate Body Division hearing this appeal issued a Procedural Ruling
75 denying Japan's request. The Division 
explained that, in its draft Working Schedule, drawn up prior to the receipt of Japan's request, the 
oral hearing had been scheduled to take place on 3-4 November 2014, and that such scheduling was coordinated with the working schedules in the two other proceedings also before the Appellate Body, namely, the appeals in US – Carbon Steel (India)  (DS436) and US – 
Countervailing Measures (China) (DS437). The overlap in the dates of the three working 
schedules, and in the composition of the Divisions hearing these three appeals, left the Appellate 
Body with limited choices for scheduling the oral hearings as well as its internal deliberations in 
this appeal. For these reasons, and taking into consideration the concerns expressed by the other 
participants over alternative dates for the oral hearing, the Division considered itself unable to accommodate Japan's request. 
1.25.  The oral hearing in this appeal was held on 3-4 November 2014. The participants each 
made an opening oral statement.
76 Seven of the third participants (Australia, Canada, Korea, 
Norway, Saudi Arabia, the Separate Customs Territo ry of Taiwan, Penghu, Kinmen and Matsu, and 
Turkey) made opening oral statements. The part icipants and third participants responded to 
questions posed by the Members of the Appe llate Body Division hearing the appeal. 
2  ARGUMENTS OF THE PARTICIP ANTS AND THIRD PARTICIPANTS 
2.1  Claims of error by Argentina – Appellant 
2.1.1  The Panel's terms of reference 
2.1.  Argentina appeals the Panel's conclusion, in paragraph 4.1.b of its First Preliminary Ruling, 
that the unwritten "overarching" TRRs measure wa s within its terms of reference. Argentina 
submits that this finding by the Panel is incons istent with Articles 6.2 and 7.1 of the DSU. 
Argentina thus requests the Appellate Body to reverse that finding, as well as the Panel's conclusions, in paragraphs 7.1.b, 7.5.b, and 7.9. b of the Panel Reports, and to conclude that the 
unwritten "overarching" TRRs measure was outside the Panel's terms of reference.
77 Argentina 
puts forward two main arguments in support of it s appeal, namely: (i) none of the complainants' 
                                               
71 Pursuant to Rule 24(1) of the Working Procedures. 
72 In DS438 and DS445. 
73 Pursuant to Rule 24(2) of the Working Procedures. 
74 Switzerland submitted its delegation list for the oral hearing to the Appellate Body Secretariat and the 
participants and third participants in this dispute. For the purposes of th is appeal, we have interpreted this 
action as a notifica tion expressing Switzerland's intention to attend  the oral hearing pursuant to Rule 24(4) of 
the Working Procedures. 
75 Attached as Annex 4 to these Reports. 
76 Argentina made a single opening statement as  appellant in DS438, DS444, and DS445 and as 
appellee in DS438 and DS445. The European Union made a single opening statement as other appellant and appellee in DS438, and Japan made a single opening statement as other appellant and appellee in DS445. The 
United States made a single opening statement as ap pellee in DS444 and as a third participant in DS438 and 
DS445. 
77 Argentina's appellant's submission, para. 15. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  consultations requests identified the unwritten "overarching" measure or their broad claims in 
respect of the TRRs78; and (ii) the inclusion of the "overarching" TRRs measure, as well as the 
"as such" or "equally expansive" claims against this alleged measure, in the complainants' panel requests impermissibly expanded the scope of these disputes or changed its essence.
79 
2.2.  Argentina argues that the complainants did not identify in their consultations requests an 
unwritten "overarching measure", or any "as such" or  other "equally expansive" claims in respect 
of the TRRs.80 Each of the complainants' request for consultations identifies the Declaración Jurada 
Anticipada de Importación (DJAI) and Certificados de Importación  (import certificates) (CIs) as 
"measures" maintained through specific "legal instruments", which are identified in annexes to the consultations requests.
81 While Argentina acknowledges that the requests for consultations 
reference certain "commitments" allegedly required by Argentina for importers to undertake, 
Argentina stresses that the discussion of these "commitments" contains no reference to 
"measures" that might be subject to challenge or to any "legal instruments" providing for such measures.
82 Moreover, there is no annex similar to those provided for the DJAI and CIs identifying 
any relevant "legal instruments" for these "commitments". In Argentina's view, the phrase 
"[t]hese measures" in the final two descriptive paragraphs of the consultations requests can only be read as pertaining to the DJAI and the CIs, and not to the TRRs.
83 Thus, the "commitments" 
language could, at most, suggest that the complainan ts were challenging, on an "as applied" basis, 
specific "statements" or "agreements" between Argentina and importers to "limit imports" or "increase the local content of products manufactured in Argentina", but cannot possibly encompass an "as such" or "equally expansive" challeng e to an unwritten "overarching" TRRs measure.
84 
2.3.  Argentina further contends that the Panel erred in concluding that the complainants' addition 
of the "overarching measure" in relation to the TRRs did not impermissibly expand the scope of the 
dispute or change its essence. The Panel relied on the "similarities" between the language used in 
the complainants' consultations requests to describe each of the "commitments" and the language 
used in their panel requests to describe the five "requirements". However, such similarities have "no bearing" on the issue of whether the complainants had identified in their consultations 
requests a "single unwritten measure" with "distinct normative content".
85 Argentina maintains 
that the Panel's analysis could, at most, support a conclusion that each of the "commitments" constituted a "measure at issue", but not that the complainants had also identified a "single unwritten measure" subject to challenge.
86 Moreover, citing EC and certain member States – Large 
Civil Aircraft as regards the required clarity in identifying unwritten measures in the panel request, 
Argentina asserts that "it is difficult to imagine that a responding party would not, at the very least, be entitled to notice in a consultations request that such a measure was potentially subject 
to challenge in the dispute."
87  
2.4.  In addition, Argentina argues that the complainants' claims against the unwritten 
"overarching measure" were in the nature of "as such" or "other equally expansive" claims. While 
none of the complainants actually used the phrase "as such" in their panel requests, Argentina 
understood that all the complainants were bringing "as such" claims or something akin thereto. "As such" challenges are serious challenges, and complainants should be expected to provide a respondents with notice of such broad claims in their requests for consultations.
88 This was 
precisely the conclusion of the panel in US – Anti-Dumping and Countervailing Duties (China) , 
where the complainant identified an "as such" challenge against a rule or norm of general 
application in its panel request, even though its request for consultations had only included 
individual instances of application of that rule of general application. The panel in that dispute 
found that, although the measure of general application was "closely related" to the measures in the consultations request, such "close relation ship" did not outweigh the fact that the panel 
                                               
78 Argentina's appellant's submis sion, heading II.C and para. 23. 
79 Argentina's appellant's submis sion, headings II.D and II.D.2. 
80 Argentina's appellant's submission, para. 22. 
81 Argentina's appellant's submission, para. 25. 
82 Argentina's appellant's subm ission, paras. 26 and 27. 
83 Argentina's appellant's submission, para. 30. 
84 Argentina's appellant's submission, para. 28. 
85 Argentina's appellant's submissi on, para. 43. (emphasis omitted) 
86 Argentina's appellant's submissi on, para. 44. See also para. 49. 
87 Argentina's appellant's submission , para. 47 (referring to Argentina' s first written submission to the 
Panel, para. 140). 
88 Argentina's appellant's subm ission, paras. 52 and 53.  WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  request introduced a "wholly new type of measure"  and added "as such" claims to the "as applied" 
challenges.89 Thus, the panel in that dispute found the measure of general application to be 
outside its terms of reference. Argentina argues that the complainants' expansion of the scope of 
these disputes was "far more evident" than in US – Anti-Dumping and Countervailing Duties 
(China) , considering that the unwritten "overarching measure" in the complainants' panel requests 
"bears no relationship" to the measures identified in their consultations requests.90 
2.5.  Lastly, Argentina contends that the Panel failed to address the nature of the complainants' 
claims against the "overarching" measure, leading the Panel wrongly to conclude that the addition 
of this new measure did not expand the scope of these disputes. For Argentina, this constitutes an independent reason for the Appellate Body to reverse the Panel's finding that the unwritten 
"overarching" TRRs measure was within its terms of reference.
91 
2.1.2  Identification of the single unwritten TRRs measure 
2.6.  Argentina claims that the Panel erred in fi nding that the complainants had established that 
the alleged TRRs measure exists or operates as a single measure, and consequently that such 
measure is inconsistent with Articles XI:1 and III:4 of the GATT 1994. Argentina also claims that 
the Panel acted inconsistently with its duty under Article 11 of the DSU to conduct an objective assessment of the matter when assessing Japan's "as such" claims against the alleged TRRs 
measure. Argentina therefore requests the Appellate Body to reverse the Panel's conclusions, in 
paragraphs 7.1.d and e, 7.5.c and d, and 7.9.d and e of its Reports, that the alleged TRRs 
measure operates as a single measure that is inconsistent with Article XI:1 of the GATT 1994; in paragraphs 7.1.f and 7.9.f, that the alleged TRRs measure is inconsistent with Article III:4 of the 
GATT 1994; and, in paragraph 7.9.h, that the alleged TRRs measure is "as such" inconsistent with 
Articles XI:1 and III:4 of the GATT 1994. 
2.1.2.1  The joint claims against the single TRRs measure 
2.7.  Argentina requests the Appellate Body to declare moot and of no legal effect the Panel's 
findings, in paragraphs 6.221 through 6.231 of its Reports, concerning the operation of the alleged TRRs as a single measure and, consequently, to reverse the Panel's ultimate finding that the 
complainants established that the TRRs measure exists or "operates as a single measure 
(TRRs measure)" that is inconsistent with Articles XI:1 and III:4 of the GATT 1994.
92 
2.8.  Argentina observes that the three complainants identified in their respective panel requests, 
as specific measures at issue, certain TRRs pursuant to which Argentina allegedly required 
economic operators to undertake certain actions with a view to pursuing Argentina's stated policy 
objectives of elimination of trade balance deficits and import substitution. The three complainants later confirmed in their submissions before the Panel that they were challenging these TRRs as a 
single overarching measure. Argentina points out that all of the complainants' panel requests 
suggest that the complainants were challenging the overarching TRRs measure outside of "any application thereof"
93, and considers it evident from the content of the complainants' submissions 
that each of the complainants had, in effect, advanced "as such" claims in respect of the alleged 
TRRs measure.  
2.9.  In Argentina's view, each of the complainants challenged the alleged TRRs measure as an 
unwritten "rule", "norm", or "measure" of general and prospective application, pursuant to which 
the importation of goods into Argentina is prospectively conditioned upon a number of alleged 
unwritten "requirements". The Appellate Body has explained that "as such" claims are challenges against measures that have "general and prospective application", whereby a complainant asserts 
that a Member's conduct is WTO-inconsistent, "not only in a particular instance that has occurred, 
but in future situations as well", and seeks ex ante  to prevent that Member from engaging in that 
                                               
89 Argentina's appellant's submission , para. 55 (quoting Panel Report, US – Anti-Dumping and 
Countervailing Duties (China) , para. 14.36). 
90 Argentina's appellant's submission, para. 56. 
91 Argentina's appellant's submission, para. 58. 
92 Argentina's appellant's submission, para. 136. 
93 Argentina's appellant's subm ission, paras. 78 and 79. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  conduct.94 To Argentina, this is precisely the nature of the complainants' "joint claims" in respect 
of the alleged TRRs measure. 
2.10.  For this reason, Argentina submits that the Panel wrongly treated the complainants' 
statements that they were not pursuing "as such" claims as dispositive in relation to the Panel's 
evaluation of those claims. The Panel's focus on terminology, rather than on the nature of the 
alleged TRRs measure and the prospective relief sought by the complainants, led it to apply an inappropriate legal standard in relation to the complainants' claims. Argentina considers that, 
regardless of the manner in which the complainants may choose to characterize their claims, the 
central inquiry is whether, " in substance ", the complainants have challenged a measure with 
normative content that is separate and distinct from any individual instances of application.
95  
2.11.  In US – Zeroing (EC) , the Appellate Body stated that, in order to support a finding as to the 
existence of an unwritten measure of general and prospective application, the complainant must 
clearly establish, through arguments and supporting evidence, at least that the alleged "rule or norm" is attributable to the responding Member, its precise content, and that it has general and 
prospective application. Argentina asserts that the Panel was under an obligation to apply the legal 
standard articulated by the Appellate Body in US – Zeroing (EC) , given the purported normative 
character of the alleged unwritten TRRs measure and the prospective nature of the findings sought 
by the complainants. The Panel, however, considered that the legal standard in US – Zeroing (EC)  
applies only in the case of "as such" challenges to unwritten measures, and then "apparently" only when a complainant " expressly  characterizes its claim as 'as such'".
96 It is "undisputed" that, in 
assessing the complainants' joint claims, the Pane l did not examine the "general and prospective" 
elements of the TRRs measure prior to concluding that such measure "exists". For Argentina, 
"[t]he Panel's failure in this regard irreparably taints its conclusion that the complainants had succeeded in demonstrating that the alleged TRRs measure is an unwritten rule or norm that 
regulates the prospective importation of goods (or the concession of certain benefits) in 
Argentina."
97 
2.12.  Argentina submits that, having failed to apply the relevant legal standard, the Panel 
erroneously ascertained the existence of the alleged TRRs measure on the basis of the legal 
standard articulated by the panels in US – COOL , US – Tuna II (Mexico) , and Japan – Apples . The 
panels in those disputes addressed only the appropriateness of assessing the WTO-consistency of multiple written measures, whose existence was undisputed, " as if they were  a single measure".
98 
It follows, according to Argentina, that the Panel erred in determining that the complainants had 
established the existence of the alleged TRRs measur e on the basis of the legal standard set out in 
those three disputes. In Argentina's estimation, this legal error resulted in the determination, on 
the part of the Panel, "that the alleged TRRs meas ure supposedly 'exists' on the basis of criteria 
that bear no relationship whatsoever to those that were applicable under the legal standard articulated in US – Zeroing (EC)  to ascertain the existence of unwritten measures of general and 
prospective application."
99 
2.13.  Argentina further submits that, having uncri tically accepted the complainants' description of 
the content of each alleged TRR, the Panel th en sought to determine whether the alleged 
individual TRRs apply and operate in a combined manner and as part of a single measure. The 
Panel undertook that inquiry by reviewing three factors: (i) the manner in which the complainants 
have presented their claims in respect of the measures; (ii) the respondent's position; and (iii) the manner in which the TRRs operate and are related to each other, in order to determine whether 
they can be considered to be autonomous or in dependent. In Argentina's view, none of these 
factors says anything about whether the alleged TRRs measure is attributable to Argentina, its precise content, or, most importantly, whether it has general and prospective application. As a 
result of this legal error, the Panel effectively presumed at the outset of its analysis the very 
purpose of its inquiry: i.e. that the alleged TRRs measure exists. For Argentina, the Panel could only have determined that the alleged TRRs measure exists if it was satisfied that the complainants had put forward sufficient evidence to demonstrate that it is attributable to 
                                               
94 Argentina's appellant's submission, pa ra. 86 (quoting Appellate Body Report, US – Oil Country 
Tubular Goods Sunset Reviews , para. 172 (emphasis original)). 
95 Argentina's appellant's submissi on, para. 117. (emphasis original) 
96 Argentina's appellant's submissi on, para. 65. (emphasis original) 
97 Argentina's appellant's submis sion, para. 119. (fn omitted) 
98 Argentina's appellant's submissi on, para. 121. (emphasis added) 
99 Argentina's appellant's submission, para. 126. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Argentina, its precise content, and that it has general and prospective application. Argentina 
argues that, without such findings, there was no basis for the Panel to conclude that the alleged TRRs measure "exists". 
2.1.2.2  Article 11 of the DSU – The Panel's finding on Japan's "as such" claims against 
the single TRRs measure 
2.14.  Argentina argues that the Panel further acte d inconsistently with its duty under Article 11 of 
the DSU to conduct an objective assessment of the matter when assessing Japan's "as such" 
claims against the alleged TRRs measure and, ther efore, respectfully requests the Appellate Body 
to reverse the Panel's conclusion in paragraph 7.9.h of the Japan Panel Report that the alleged TRRs measure is "as such" inconsistent with Articles XI:1 and III:4 of the GATT 1994. 
2.15.  Argentina submits that, after having erroneously concluded and made findings against the 
alleged TRRs measure on the basis of an inapposite legal standard, the Panel addressed Japan's 
separate "as such" claims against the same measure based on the legal standard articulated by the Appellate Body in US – Zeroing (EC) . Nevertheless, in Argentina's view, the Panel found that 
Japan had established the existence of the alle ged TRRs measure without properly examining 
whether and to what extent Japan had adduced sufficient evidence to demonstrate the alleged 
measure's precise content, or its general and prospective application. Argentina claims that the 
Panel acted inconsistently with its duties to conduct an objective assessment of the matter under 
Article 11 of the DSU in assessing Japan's separate "as such" claims against the alleged TRRs measure.  
2.16.   Argentina considers that, contrary to the complainants' assertions, it cannot be the case 
that an unwritten measure that may include one or more of five, and possibly more, constituent 
components, some of which have yet to be specified at all, has precise content. According to Argentina, the complainants' characterization of the measure at issue was so broad and 
amorphous as to encompass any content that the complainants cared to attribute to it – the 
antithesis of what the term "precise" means. Moreover, Argentina contends that, even accepting the complainants' characterization of the evid ence with respect to the alleged individual 
"requirements" comprising the single TRRs measure, at face value, the most that such evidence 
could possibly demonstrate is a series of discrete "one-off" actions relating to a limited number of individual economic operators, in a limited number of sectors, the particular content of which varied widely, and with nothing resembling the ge neral and prospective application characteristic 
of a rule or norm. Argentina submits that the complainants' overarching TRRs "mega-measure" 
simply does not exist.
100  
2.17.  Furthermore, Argentina considers that there was no credible basis for the Panel to conclude 
that the complainants had demonstrated that the alleged overarching TRRs measure has "general 
and prospective application" as that term is commonly understood and as it has been interpreted by panels and the Appellate Body in the "zeroing" disputes, EC – Approval and Marketing of 
Biotech Products , and EC and certain member States – Large Civil Aircraft . The complainants 
asserted that the evidence on which they relied demonstrated the existence of an unwritten measure with "precise content", whose "systematic application" is both general and prospective. However, Argentina contends that this would be the case only if the terms used were rendered 
meaningless.  
2.18.  Argentina argues that the Panel "lightly assumed" the precise content of the alleged TRRs 
measure. For this reason, the Panel's analysis falls far below the minimum threshold required for 
an objective assessment of the matter under Article 11 of the DSU.
101 In Argentina's view, the 
Panel uncritically accepted the complainants' characterization of the content of the alleged TRRs measure; failed to examine the record evidence in  an even-handed manner; failed to ensure that 
its findings were properly based on the record evidence; and failed to provide a sufficiently 
reasoned and adequate explanation for its findings concerning the precise content of the alleged TRRs measure.  
2.19.  First, Argentina argues that the fact that the complainants' task was rendered more difficult 
because they decided to challenge a series of unwritten measures as a single "overarching" TRRs 
                                               
100 Argentina's appellant's submission, para. 151. 
101 Argentina's appellant's submission, para. 168. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  measure, which is also unwritten, cannot serve as a basis to absolve them from demonstrating the 
content of the alleged TRRs measure with the requir ed degree of precision. In order to establish 
that the alleged TRRs measure exists, the complainants were under an obligation to demonstrate the existence of the individual requirements an d that the alleged TRRs measure has normative 
content that is distinct from any of the indivi dual requirements that allegedly constitute it. 
Argentina underlines that the complainants failed in this crucial respect.  
2.20.  Second, Argentina submits that the Panel's assertion that the "available evidence provide[d] 
it with sufficient elements to establish the exis tence and the precise content" of the TRRs measure 
was unsubstantiated and did not provide a sufficient evidentiary basis for establishing the precise content of the TRRs measure.
102 Argentina stresses that the Panel's analysis of the "precise 
content" of the alleged TRRs measure does not contain a single  citation to evidence on the Panel 
record, or any cross-reference to earlier sections  of the Panel Reports. Argentina presumes that 
the Panel's cryptic reference to the "available evid ence" refers to the earlier section of the Panel 
Reports in which it concluded that the TRRs measure exists or "operates as a single measure". 
However, because the Panel made that determination on the basis of an incorrect legal standard, it 
failed to analyse or determine whether the alleged TRRs measure has precise content under the standard articulated in US – Zeroing (EC)  for determining the existence of an unwritten norm of 
general and prospective application. 
2.21.  Third, Argentina argues that the Panel's re asoning in support of its finding that the alleged 
TRRs measure has general application fails to reflect an objective assessment of the matter under Article 11 of the DSU. By the complainants' acknowledgement, the alleged TRRs measure does not 
apply to all imports, to all importers, or to all economic operators who utilize imported items for 
manufacture in Argentina. Indeed, it is precisely because the complainants were unable to establish the "general" application of the alleged TRRs measure that the Panel was forced to accept 
the unprecedented notion that an unwritten measure may have general application merely 
because it "could affect any economic sector" or "can apply to any economic operator".
103 Such an 
understanding is not only directly contrary to the ordinary meaning of the term "general", but also 
would fundamentally alter the legal standard set forth in US – Zeroing (EC) , such that an 
unwritten measure would be deemed to exist merely if it had "the potential  to be generally 
applicable".104 
2.22.  Finally, Argentina argues that the Panel's re asoning in support of its finding that the alleged 
TRRs measure has prospective application fails to reflect an objective assessment of the matter 
and is insufficient to meet the evidentiary thresh old required to establish that the alleged TRRs 
measure has prospective application. Argentina notes that the Panel cited only a single piece of 
evidence, Panel Exhibit JE-759, in support of its conclusion that the alleged TRRs measure 
implements a "deliberate policy".105 This exhibit contains an interview with Argentina's former 
Secretary of Internal Trade, in which he stated th at the policy of "managed trade" would continue 
to be applied in the future pursuant to instructions from the President of Argentina. In Argentina's 
view, the above-mentioned evidence reflects, at most, the uncontroversial fact that the 
Government of Argentina pursues re-industrialization and import substitution policies. These macroeconomic objectives are common to many WT O Members, and generic references to them 
do not suffice to establish that they are implemented through a WTO-inconsistent unwritten rule or 
norm of general and prospective application. 
2.23.   For the above-mentioned reasons, Argentina claims that the Panel "lightly assumed" the 
existence of the alleged TRRs measure, thereby acti ng inconsistently with its duty to conduct an 
objective assessment of the matter under Article 11 of the DSU.
106 
                                               
102 Argentina's appellant's submission, para. 181 (quoting Panel Reports, para. 6.327). 
103 Argentina's appellant's submission, para. 191 (quoting Panel Reports, paras. 6.334 and 6.335). 
104 Argentina's appellant's submission , para. 192. (emphasis original) 
105 Argentina's appellant's submission, paras. 197 and 198. 
106 Argentina's appellant's submission, para. 201. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  2.1.3  The DJAI procedure: Articl es VIII and XI:1 of the GATT 1994 
2.24.  Argentina requests the Appellate Body: (i) to modify or reverse the Panel's findings 
concerning the scope of Article VIII of the GATT 1994107; (ii) to modify the Panel's reasoning108, 
and find that import formalities and requirements can only be found to be inconsistent with 
Article XI:1 of the GATT 1994 when it is demonstrat ed that: (a) the formality or requirement limits 
the quantity or amount of imports to a material degree that is separate and independent of the trade-restricting effect of any substantive rule of importation that the formality or requirement 
implements; and (b) this separate and independent trade-restricting effect is greater than the 
effect that would ordinarily be associated with a formality or requirement of its nature; and (iii) to reverse the Panel's finding that, because the DJAI procedure is not "automatic", it is inconsistent with Article XI:1.
109 
2.25.  Argentina contends that the DJAI procedure is an "import formality or requirement" subject 
to Article VIII of the GATT 1994, which cannot be evaluated as a potentially prohibited "quantitative restriction" under Article XI:1 of the GATT 1994. This is because the respective 
scopes of application of Articles VIII and XI are mutually exclusive to ensure that Members are 
allowed to maintain the types of import formalit ies and requirements that Article VIII expressly 
contemplates. Argentina contends that, at a minimum, a harmonious interpretation of Articles VIII 
and XI must identify when an Article VIII import formality or requirement becomes an Article XI:1 
"restriction". 
2.1.3.1  The scope of Arti cle VIII of the GATT 1994 
2.26.  Argentina requests the Appellate Body to modify or reverse certain aspects of the Panel's 
findings concerning the scope of Article VIII of the GATT 1994. Although the Panel did not make an 
ultimate finding as to the applicability of Article VIII to the DJAI procedure, Argentina appeals certain statements made by the Panel in its discussion of whether the DJAI procedure can be 
considered an import formality or requirement under Article VIII. These statements reflect legal 
error and appear to have influenced the Panel's conclusions regarding the relationship between Article VIII and Article XI of the GATT 1994, and the Panel's examination of the DJAI procedure 
under the latter provision.  
2.27.  Argentina refers, in particular, to two statements in paragraph 6.433 of the Panel Reports: 
(i) "a DJAI in exit status is a necessary pre-requisite for importing goods into Argentina"; and (ii) the DJAI procedure is "a procedure by which Argentina determines the right to import." The 
clear implication of these statements, as well as of paragraph 6.433 as a whole, is that the Panel 
considered any import procedure that is a "necessary pre-requisite for importing goods", or by which a Member "determines the right to import", to be outside the scope of Article VIII. This is 
particularly apparent in the last two sentence s of paragraph 6.433, where the Panel expressly 
contrasts a procedure that is "directed at a mere observance of forms" with "a procedure by which Argentina determines the right [to] import". In Argentina's view, the Panel clearly considered only 
the former to fall within the scope of Article VIII of the GATT 1994. 
2.28.  Referring to examples such as inspection requirements for goods that pose a sanitary or 
phytosanitary risk, and ordinary import documentation requirements, Argentina contends that the fulfilment of formalities or requirements will often constitute a "pre-requisite for importing goods" 
or a procedure by which a Member "determines the right to import". Yet, such formalities and 
requirements imposed in connection with importation are not, as the Panel implied, outside the scope of Article VIII of the GA TT 1994. The Panel's erroneous interpretation appears to have 
resulted, at least in part, from its focus on the ordinary meaning of only the term "formality". Had 
the Panel also considered the term "requirement",  it would have been apparent that procedures 
that constitute a "necessary pre-requisite for importing goods", or by which an importing Member 
"determines the right to import" are "requirements" within the scope of Article VIII. Argentina 
cautions that the Panel's statements regarding th e scope of Article VIII reflect an incorrect legal 
interpretation and, if left uncorrected, will create confusion and uncertainty concerning the interpretation and application of this provision. 
                                               
107 Argentina refers to paragraph 6.433 of the Panel Reports. 
108 Argentina refers to paragraphs 6.435-6.445 of the Panel Reports. 
109 Argentina refers to paragraphs 6.474 and 6.479 of the Panel Reports, paragraph 7.2.a of the EU 
Panel Report, paragraph 7.6.a of th e US Panel Report, and paragraph 7.10.a of the Japan Panel Report. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  2.1.3.2  The relationship between Articles VIII and XI:1 of the GATT 1994 
2.29.  Argentina requests the Appellate Body to modify the Panel's reasoning, in 
paragraphs 6.435-6.445 of the Panel Reports, and find that the Panel should have followed an approach similar to the one that Argentina proposes. Argentina claims that the Panel erred in not 
establishing and applying a proper analytical framework for distinguishing between the scope and 
disciplines of Article VIII of the GATT 1994, on the one hand, and the scope and disciplines of 
Article XI:1 of the GATT 1994, on the other hand. In particular, the Panel erred in its interpretation 
and application of Article XI:1 because it failed to recognize that an import formality or 
requirement could have some degree of trade-restrict ing effect that is an ordinary incident of the 
formality or requirement itself, and which does not render it inconsistent with Article XI:1.  
2.30.  For Argentina, the Panel's understanding of  the relationship between Articles VIII and XI:1 
of the GATT 1994 leaves no room for an evaluation  of whether an import formality or requirement 
has independent trade-restricting effects and, if so , whether those effects are ordinarily associated 
with a formality or requirement of that nature. The Panel's reasoning creates the possibility that a 
type of measure that Members are allowed to adopt and maintain under Article VIII would be 
prohibited per se  under Article XI:1. In Argentina's view, this is not a harmonious interpretation of 
these two provisions of the GATT 1994 for the following reasons. 
2.31.  First, Argentina considers that Article VIII already contemplates that import formalities and 
requirements can have trade-restricting effects because it acknowledges "the need for minimizing the incidence and complexity of import and export  formalities and for decreasing and simplifying 
import and export documentation requirements". Thus, Argentina argues that the drafters of 
Article VIII were aware that formalities and requir ements are potentially an impediment to trade, 
at least to some degree. 
2.32.  Second, Argentina argues that a harmonious interpretation of Articles VIII and XI:1 of the 
GATT 1994 would require, at a minimum, some means of distinguishing between the 
trade-restricting effect of the formality or requirem ent itself and the trade-restricting effect of any 
substantive rule of importation that the measure implements. Argentina proposes that, for an 
import formality or requirement to be found to constitute an Article XI:1 restriction, in its own 
right, then it must be shown that: (i) the formalit y or requirement limits the quantity of imports to 
a material degree that is independent of the trade-restricting effect of any substantive rule of importation that the formality or requirement implements; and (ii) this independent 
trade-restricting effect is greater than the effect that would ordinarily be associated with a 
formality or requirement of its nature. This approach reconciles the Article XI prohibition with the fact that import formalities and requirements are both "necessary and expressly contemplated" by 
Article VIII. Argentina finds support for its propos ed approach in the reasoning employed by the 
panels in Korea – Various Measures on Beef
110 and China – Raw Materials .111 In assessing the 
consistency of the licensing procedures at issue with Article XI:1, the panels in those disputes 
framed the relevant inquiry as whether the procedure had trade-restricting effects that were 
"independent" of, and "additional" to, the "underlying measure" that the procedure was used to implement. 
2.33.  Argentina states that its proposed framework is similar to the approach used in the final text 
of the Agreement on Trade Facilitation, which is meant to "clarify and improve relevant aspects" 
of, inter alia , Article VIII of the GATT 1994.
112 Article 10.1.1(c) of the Agreement on Trade 
Facilitation recognizes that import formalities and requirements can restrict trade independently of 
any underlying rule of importation that the formality or requirement implements.113 The fact that 
import formalities and requirements can have certain types of trade-restricting effects does not render them "restrictions" under Article XI:1 of the GATT 1994. However, Argentina contends that, 
due to the Panel's broad interpretation of the scope of Article XI:1, even measures that are the 
                                               
110 Argentina's appellant's submission , para. 225 (quoting Panel Report, Korea – Various Measures on 
Beef, para. 782). 
111 Argentina's appellant's submission, para. 226 (quoting Panel Reports, China – Raw Materials , 
para. 7.917). 
112 Argentina's appellant's submission , paras. 229 and 230 (quoting the Agreement on Trade Facilitation 
(WT/L/931, 15 July 2014), third preambular paragraph, and referring to Article 10 thereof, entitled "Formalities 
Connected with Importation, Exportation and Transit"). 
113 Argentina's appellant's submission, para. 231. Argentina contends that "the underlying rule" is 
referred to in Article 10.1.1(c) of the Agreement on Trade Facilitation as the "policy objective". (Ibid.) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  least trade-restrictive in the sense of Article 10.1. 1(c) of the Agreement on Trade Facilitation could 
constitute Article XI:1 "restrictions". Moreover, left undisturbed, the Panel's incomplete reasoning 
would have implications for the interpretation of th at Agreement, if and when it enters into force. 
2.1.3.3  The application of Article XI:1  of the GATT 1994 to the DJAI procedure 
2.34.  Argentina claims that the Panel erred in finding that the DJAI procedure is inconsistent with 
Article XI:1 of the GATT 1994 because it is not "automatic". The Panel appears to have concluded that any import formality or requirement that is "a necessary condition to import goods" and that 
is not "automatic" is, necessarily, a restriction under Article XI:1. Argentina seeks reversal of this 
specific basis as one of the four independent bases for the Panel's finding in paragraph 6.474 of the Panel Reports, and ultimate conclusion in paragraph 6.479 of the Panel Reports, paragraph 7.2.a of the EU Panel Report, paragraph 7.6.a of the US Panel Report, and 
paragraph 7.10.a of the Japan Panel Report, that the DJAI procedure is inconsistent with 
Article XI:1. Even assuming that an evaluation under Article XI:1 is possible, it cannot be the case that an import formality or requirement is an Article XI:1 restriction merely because it is not 
"automatic". 
2.35.  Argentina contends that the Import Licens ing Agreement, the subject-matter of which is a 
subset of the subject-matter of Article VIII of the GATT 1994, provides relevant context for the 
interpretation of Article XI:1 of the GATT 1 994. Although the Import Licensing Agreement 
contemplates that some types of licensing procedures are not "automatic", it cannot be understood to suggest that "non-automatic" import licensing procedures are per se  inconsistent with 
Article XI:1. In particular, Article 3.2 of the Im port Licensing Agreement distinguishes between the 
potential trade-restricting effects of the procedure and of the underlying rule of importation that 
the procedure implements. To interpret Article XI:1 of the GATT 1994 as prohibiting non-automatic import licensing procedures per se  would conflict with Article 3.2 of the Import Licensing 
Agreement. In Argentina's view, this conflict is av oided by recognizing that an import procedure is 
not an Article XI:1 restriction merely because it is not "automatic". 
2.2  Arguments of the European Union – Appellee 
2.2.1  The Panel's terms of reference 
2.36.  The European Union requests the Appellate Body to uphold the Panel's finding that the 
European Union's challenge to the TRRs as a "single overarching measure" was within the Panel's terms of reference. The European Union maintains th at it was not required to identify the TRRs in 
its consultations request with the same degree of detail as in its panel request. The 
European Union also submits that the Panel was correct in saying that the challenge against the TRRs either as a "single unwritten overarching measure", or when viewed as separate measures, 
did not change the essence of the dispute because the characterization of the TRRs as a "single 
overarching measure" in the panel requests was nothing more than an enunciation in different 
terms of the same claims as set out in the consultations requests.  
2.37.  In the European Union's view, Argentina wrongly seeks to have the standard to identify 
"as such" claims in panel requests apply equally to consultations requests. The European Union contends that it was not required to identify the TRRs measure, as well as the manner in which it intended to bring its claims, in its consultations request with the same degree of detail as in its 
panel request. A comparison between Articles 4.4 and 6.2 of the DSU shows that the language of 
Article 6.2 is stricter, considering that the panel re quest serves to "delimit the jurisdiction of the 
panel".
114 In contrast, consultations are "the first step in the WTO dispute settlement process" that 
provide parties the opportunity to "define and de limit the scope of the dispute between them" and 
"clarify the facts of the situation".115 
2.38.  Moreover, echoing previous Appellate Body  jurisprudence, the European Union contends 
that "[p]recise and exact identity" in the identi fication of the measures at issue between the 
consultations request and the panel request is not necessary, as long as the "essence of the 
                                               
114 European Union's appell ee's submission, para. 64. 
115 European Union's appellee's submission, para. 64 (quoting, respectively, Appellate Body Reports, 
US – Upland Cotton , para. 293; Mexico – Corn Syrup (Article 21.5 – US) , para. 54; and Brazil – Aircraft , 
para. 131). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  challenged measure had not changed".116 The consultations process allegedly helped the 
European Union to have "a deeper knowledge of the measures at issue as well as Argentina's position on them".
117 In turn, this allowed the European Union to shape its panel request in 
accordance with the requirements of Article 6.2. The European Union clarifies that its panel 
request neither characterized its claim against the single TRRs measure "as such", nor requested 
an "as such" finding against that measure. Rather, the EU Panel Request described the elements of the unwritten measure and explained why they ar e inconsistent with the covered agreements 
either when viewed as a single overarching TRRs  measure, or as separate measures, i.e. the 
specific instances of application of the TRRs on particular economic operators.  
2.39.  With respect to Argentina's assertion that the unwritten "overarching measure" identified in 
the complainants' panel requests "bears no relationship" to the measures referred to in their 
consultations requests,
 the European Union argues that the single TRRs measure is composed of 
one or several of the TRRs listed in the consulta tions requests, and is equally based on the policy 
objectives mentioned therein. The relationship be tween the measures in the consultations requests 
and those in the EU Panel Request was "manifestly obvious".118 Therefore, the European Union 
maintains that its panel request does not introduce "new" measures that were not already mentioned in its consultations request.
119  
2.40.  In this regard, the European Union compares  the language of its consultations request with 
that of its panel request. On the one hand, its consultations request identifies as measures at issue TRRs "in the form of specific types of commitments which restrict imports and discriminate between imported and domestic goods with a view to advancing the Argentinean Government's 
stated policies of re-industrialization, import substitution and elimination of trade balance 
deficits".
120 On the other hand, the EU Panel Request identifies the TRRs "as an overarching 
measure having the same characteristics as those described in the consultations requests and 
pursuing the same policy objectives".121 Annex III to the EU Panel Request also lists as separate 
measures some instances of application of specific TRRs imposed on individual economic operators, with these separate measures having the "same characteristics" as those described in 
its consultations request. Thus, the measures identified in its consultations request are not "legally 
distinct" from those identified in its panel request.
122 The European Union concludes that its 
reference to the TRRs as an "overarching measure" did not expand the scope of the dispute or change its essence. Rather, the description of the TRRs as an "overarching measure" was meant to 
identify, in conformity with Article 6.2 of the DSU,  the "measure at issue" that formed part of the 
Panel's terms of reference, as well as to specify the "manner in which the European Union was framing its case".
123 
2.2.2  Identification of the single unwritten TRRs measure 
2.41.  The European Union argues that Argentina's claim that the Panel erred in finding that the 
single TRRs measure exists is unfounded and should be rejected by the Appellate Body. First, the 
European Union argues that the fact that the Panel split its analysis of whether the TRRs measure 
has precise content and general and prospective application does not amount to a reversible error, because the Panel recalled its earlier findings in assessing the general and prospective application of the measure. Second, with respect to Japan's "a s such" findings, Argentina's allegation of error 
under Article 11 of the DSU should be rejected given the Panel's detailed, objective, and balanced 
assessment of the arguments and evidence on the record. In the light of the above, the 
European Union requests the Appellate Body to reject Argentina's claim of error. 
2.2.2.1  The joint claims against the single TRRs measure 
2.42.  As to Argentina's argument that the complainants' claims were all "as such" or something 
akin to "as such" claims, the European Union submits that the "as such" and "as applied" 
                                               
116 European Union's appellee's submission, para. 64 (quoting Appellate Body Report, Mexico – 
Anti-Dumping Measures on Rice , para. 137). 
117 European Union's appell ee's submission, para. 64. 
118 European Union's appellee' s submission, para. 63.  
119 European Union's appell ee's submission, para. 75. 
120 European Union's appell ee's submission, para. 92. 
121 European Union's appell ee's submission, para. 93. 
122 European Union's appell ee's submission, para. 93. 
123 European Union's appell ee's submission, para. 94. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  distinction is a "heuristic device" that does not define exhaustively the types of measures that may 
be subject to challenge in WTO dispute settl ement. Moreover, the "as such"/"as applied" 
distinction is not foreseen in the text of the covered agreements, and there is no legal requirement to indicate expressly that a Member challenges a measure "as such". The European Union states 
that it did not rely on the "as such"/"as applied" distinction to frame its case against the TRRs as a 
single overarching measure or against the 23 separate measures where Argentina has imposed TRRs on specific economic operators. In fact, the European Union notes that the terms "as such", 
"as applied", and "application" do not appear in its panel request, nor does the term "as such" 
appear in its first written submission to the Panel. Indeed, the European Union considers that such a characterization or "label" would have been confusing, as the European Union was not challenging, either "as such" or "as applied", the single TRRs measure or each of the TRRs 
individually. 
2.43.  In addition, the European Union points out that, in paragraphs 112 through 115 of its 
second written submission to the Panel, it argu ed and showed that the single TRRs measure has 
general and prospective application. The Europe an Union also argued and showed that the 
imposition of TRRs on economic operators is not, as Argentina argued, limited to one-off unrelated cases. Rather, the imposition of TRRs is part of a systemic approach adopted by Argentina to 
prohibit or restrict the importation of products and/or the use of imported products in Argentina 
with a view to achieving its trade-balancing and import-substitution objectives. The single TRRs measure was shown to be "overarching", "all-embraci ng", or "in extended use" in Argentina, since 
it applies to a wide range of situations, and thus, it is "general" in its application.
124 The 
European Union considers that it also proved that such a systemic approach has become the "rule" 
for companies doing business in Argentina, and that such a "rule" applies or would likely apply in the future, insofar as Argentina continues pursuing its trade-balancing and import-substitution 
objectives. Thus, the European Union showed th at the single TRRs measure has general and 
prospective application. 
2.44.  As to Argentina's argument that the Panel erred by failing to apply the legal standard 
articulated in US – Zeroing (EC)  to determine whether an unwritten "rule or norm" of general and 
prospective application exists, the European Union contends that the Panel implicitly followed the analytical steps in US – Zeroing (EC)  when making findings about the single TRRs measure with 
respect to the complainants' joint claims. The European Union considers that the Panel Reports 
would be clearer had the Panel explicitly examined the issue of whether the single TRRs measure 
also has general and prospective application as part of its analysis of these joint claims in section 6.2.2.2 of its Reports. Ne vertheless, the fact that the Panel split its analysis does not 
amount to a reversible error. The European Union understands that the Panel's analysis of the 
general and prospective application of the measure at issue, in its examination of Japan's request for "as such" findings in two subsequent sections  of the Reports (6.2.3.4.2.3 and 6.2.3.4.2.4), 
should be read together with its determinations on the joint claims in section 6.2.2.2. The 
numerous cross-references in the sections addressing Japan's "as such" claims to findings made in previous sections, and mainly to findings contai ned in section 6.2.2.2, show that the Panel's 
analysis of the general and prospective application of the single TRRs measure was not exclusively 
contained in the subsequent sections of its Reports addressing Japan's "as such" claims. In the 
European Union's view, section 6.2.2.2 addressing the joint claims and the two subsequent sections (6.2.3.4.2.3 and 6.2.3.4.2.4) of the Pa nel Reports addressing Japan's "as such" claims 
should be read together. 
2.45.  With respect to the general application of the single TRRs measure, the European Union 
points out that, in considering Japan's request for "as such" findings, the Panel found in 
paragraphs 6.334 and 6.335 of its Reports that the single TRRs measure has general application. 
In making those findings, the Panel explicitly referred to its observations in four prior paragraphs of its Reports (6.157, 6.158, 6.229, and 6.230) that the measure: (i) affects a wide range of sectors; (ii) could affect any economic sector because trade in any good may contribute to 
achieving a trade balance and import substitution; (iii) is not limited to a single import or importer 
pursuant to the "managed trade" policy instituted by high-ranking Argentine officials; and (iv) has the flexibility to be adapted to the specific characteristics of any economic operator. These 
paragraphs and substantive elements were also cited by the Panel in section 6.2.2.2 of its Reports. 
                                               
124 European Union's appellee's submission, para. 124. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  2.46.  With respect to the prospective application of the single TRRs measure, the Panel also found 
in paragraphs 6.338 through 6.341 of its Reports that the single TRRs measure has prospective application on several additional bases. The Panel made an explicit reference to paragraph 6.230 in section 6.2.2.2 to support its findings. Moreover, the Panel made relevant findings in 
paragraphs 6.221 and 6.230 concerning, respectively, evidence of the repeated imposition of TRRs 
by Argentina "at least since 2009", and the existe nce of the "managed trade" policy. Therefore, 
section 6.2.2.2 also contains findings that the single TRRs measure has prospective application. 
For the above-mentioned reasons, the European Union considers that section 6.2.2.2 of the Panel 
Reports should not be read in complete isolation from the rest of the Reports. 
2.47.  Thus, the European Union submits that the Panel did not err in section 6.2.2.2 of its Reports 
by declining to follow explicitly the analytical steps mentioned by the Appellate Body in  
US – Zeroing (EC) . Rather, the Panel examined the precise content of the single TRRs measure 
and found, although not so explicitly as later on in its Reports, that the single TRRs measure also has general and prospective application. The European Union considers that this is no different 
from the substantive inquiry that the Appellate Body said in US – Zeroing (EC)  should be 
undertaken by a panel when examining a challenge against an unwritten "rule or norm" constituting a measure of general and prospective application.  
2.48.  The European Union concludes that, in th e present case, the Panel found that the single 
TRRs measure is attributable to Argentina, determined the content of the single TRRs measure, and also found in section 6.2.2.2 of its Report s that the measure has general and prospective 
application. Consequently, the European Union submits that the Panel did not make a reversible 
error. Nevertheless, should the Appellate Body ag ree with Argentina and consider that the Panel 
made a reversible error, the European Union requests the Appellate Body to complete the analysis on the basis of the uncontested facts on the record, as well as the Panel's findings (in particular, in 
sections 6.2.3.4.2.3 and 6.2.3.4.2.4), and to find that the single TRRs measure has general and 
prospective application. Because Argentina has not contested the Panel's findings that the single TRRs measure is inconsistent with Articles XI:1 and III:4 of the GATT 1994, the European Union 
requests the Appellate Body to uphold those ultimate findings. 
2.2.2.2  Article 11 of the DSU – The Panel's finding on Japan's "as such" claims against 
the single TRRs measure 
2.49.  While Argentina's arguments under Article 11 of the DSU address the Panel's finding 
regarding Japan's explicit "as such" challenge to the single TRRs measure, the European Union 
considers it appropriate to address those allegations as well, as it may affect the manner in which the Appellate Body were to complete the analysis in this case. Moreover, those findings are, in 
essence, a recollection of what the Panel had already found in the previous sections.  
2.50.  The European Union argues that, for a claim under Article 11 of the DSU to succeed, the 
Appellate Body must be satisfied that a panel exceeded its authority as the initial trier of facts. In 
addition, a participant must identify specific errors regarding the objectivity of the panel's 
assessment. A participant claiming that a panel disregarded certain evidence must also explain 
why the evidence is so material to its case that the panel's failure to address such evidence has a bearing on the objectivity of the panel's factual assessment. According to the European Union, 
Argentina has failed to meet this standard with respect to its allegations that the Panel acted 
inconsistently with Article 11 in finding that Japan had established the precise content and general and prospective application of the single TRRs measure. The European Union considers that the 
Panel went into detail in the preceding sections of its Reports to determine the precise content of 
the TRRs measure in an objective and balanced assessment of the arguments and evidence on the 
record, which Argentina failed to contest.  
2.51.  The European Union "strongly disagrees" with Argentina's assertion that the complainants 
failed to specify with sufficient precision the content of the single TRRs measure.
125 Rather, in 
addressing Japan's "as such" claims, the Panel determined the precise content and general and prospective application of the single TRRs measure based on the arguments and evidence on the 
record which, as the Panel also noted, Argentina had failed to rebut. The European Union contends 
that, when reading the report in its totality, the Panel did not "lightly assume" the content of the 
                                               
125 European Union's appell ee's submission, para. 147. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  single TRRs measure. Moreover, Argentina fails to  point out evidence on the record to rebut the 
Panel's findings, beyond indicating that the totality of the evidence indicates otherwise. 
2.52.  As regards Argentina's argument that, with respect to the precise content of the single TRRs 
measure, the alleged measure was "amorphous and ill-defined" because the list of TRRs was 
non-exhaustive and because the complainants did no t put forward the same elements of the single 
TRRs measure, the European Union agrees wi th the Panel that "one of the purported 
characteristics of the challenged measure is precisely its lack of transparency and the broad 
discretion that the authorities have in its implementation."126 Thus, requiring a perfect match, as 
Argentina would have the Appellate Body do, could affect the right of WTO Members to bring a challenge against such a measure under Article 11 of the DSU. In any event, Argentina's contention is inapposite because the single TRRs measure found to exist by the Panel is almost a 
perfect match with the measure as described by the European Union. 
2.53.  As for Argentina's argument that the complainants were under an obligation to demonstrate 
that the single TRRs measure has normative content that is distinct from any of the individual 
"requirements" that allegedly constitute it, the European Union considers that they did just that. 
The imposition of one TRR, as a measure, is "manifestly unlike" a measure that permits Argentina to choose the most suitable requirement to be imposed on economic operators in order to achieve 
its stated policy objectives.
127 For the European Union, this is precisely why the Panel examined 
the complainants' allegations that the TRRs work as part of a single measure and properly found the existence of such a single TRRs measure. 
2.54.  With respect to Argentina's claim that the Panel failed to make an objective assessment of 
the matter because there was insufficient evidence for the Panel to make a finding regarding the 
general application of the TRRs measure, the European Union first observes that Argentina incorrectly raises an Article 11 allegation of error. In reality, Argentina is questioning the legal 
interpretation followed by the Panel in determining that the single TRRs measure has general 
application. Second, the European Union agrees with the Panel, particularly in its reliance upon Article X:1 of the GATT 1994 as context, that a measure need not apply in all cases in order for it 
to have general application. To this extent, the European Union considers that Argentina 
disregards an important feature of the single TRRs measure: its "flexibility and versatility".
128 As 
the Panel found, the discretion embedded in the e ssence of the single TRRs measure should not be 
an obstacle to finding that the measure has general application. Therefore, the European Union 
submits that Argentina's argument should be rejected.  
2.55.  As to the prospective application of the TRRs measure, the European Union recalls that 
Argentina questions the Panel's reliance on one exhi bit containing the statement of a high-ranking 
official that the policy of "managed trade" would continue to be applied in the future as per the 
instructions from the President of Argentina. Contrary to what Argentina asserts, however, the Panel did not rely merely on that one exhibit to show the existence of a "deliberate 'policy'" in this 
case. For example, in paragraphs 6.161 and 6.162 of its Reports, the Panel referred to the 
existence of the "managed trade" policy as evid enced in numerous official documents and in the 
totality of the evidence. Thus, the Panel properly supported its findings on the basis of the evidence on the record. Moreover, the 29 agreemen ts signed between economic operators and the 
Argentine authorities, as well as the commitments provided by many economic operators, all 
require a prospective course of action.  
2.56.  Finally, the European Union submits that th e Panel properly supported its findings on the 
basis of the evidence on the record, none of whic h was contested by Argentina, and that Argentina 
failed to refer to evidence on the record showing that the Panel was biased or committed a material error when finding that the single TRRs measure has a precise content and general and 
prospective application. Moreover, Argentina's clai m under Article 11 of the DSU appears to be an 
attempt at recasting the same arguments that Arge ntina made with respect to its precedent claims 
of error, something the Appellate Body has explic itly ruled is not the function of a claim under 
Article 11 of the DSU. In view of the foregoing, the European Union requests the Appellate Body to 
reject Argentina's claim of error. 
                                               
126 Panel Reports, para. 6.325. (fn omitted) 
127 European Union's appellee's submission, para. 154. 
128 European Union's appellee's submission, para. 159. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  2.2.3  The DJAI procedure: Articl es VIII and XI:1 of the GATT 1994 
2.57.  The European Union requests the Appellate Body to reject Argentina's claim on appeal and 
to uphold the Panel's finding that the DJAI procedure restricts imports and is inconsistent with Article XI:1 of the GATT 1994. The European Union considers that: (i) the Panel did not imply that 
the DJAI procedure fell outside of the scope of Arti cle VIII of the GATT 1994 merely because it is a 
prerequisite for importing goods; (ii) Argentina's analytical framework is not applicable to these disputes; and (iii) the Panel considered that the DJAI procedure is not "automatic" in the sense 
that the authorities may decide to withhold authorization to import even when all the prescribed 
formal requirements are met. 
2.2.3.1  The scope of Arti cle VIII of the GATT 1994 
2.58.  The European Union contends that Argentina's appeal is based on a mischaracterization of 
the Panel's reasoning, given that the Panel did not imply that the DJAI procedure fell outside of the 
scope of Article VIII of the GATT 1994 merely beca use it is a prerequisite for importing goods. 
Rather, the assertion that a DJAI is a prerequisite for importing goods was just the starting point 
for the Panel's analysis, and must be read together  with the detailed analysis in paragraphs 6.459 
through 6.474 of the Panel Reports, where the Panel found that participating agencies have broad discretion to enter and lift observations, and that such discretion is sometimes used to impose 
TRRs. These findings evidence that the DJAI procedure operates, in essence, as a discretionary 
system of authorization of imports by which the Argentine authorities decide on an ad hoc  basis 
whether to grant the right to import to each applicant on the basis of criteria not specified in advance. Thus, the European Union requests the Appe llate Body to reject this claim of error and to 
confirm the Panel's finding that the aspects of the DJAI procedure challenged by the complainants 
under Article XI:1 of the GATT 1994 fall outside the scope of Article VIII. 
2.59.  Additionally, in the European Union's view, the Panel's analysis focused on the term 
"formalities" because, before the Panel, Argentina consistently characterized the DJAI procedure as 
a customs or import formality. Argentina now focuses on "requirements" in Article VIII:4 of the GATT 1994. This does not, however, call into question the Panel's findings that the DJAI procedure 
is not subject to Article VIII of the GATT 1994, because not every import requirement is subject to 
Article VIII. Article VIII:4 purports to define the scope of Article VIII without prescribing any 
obligations. Articles VIII:1(c) and VIII:3 refer to "documentation requirements" and "procedural requirements", respectively. The European Union argues that, as no other provision refers to 
"requirements", it must be concluded that Article VIII:4 refers exclusively to documentation or 
procedural requirements. 
2.2.3.2  The relationship between Articles VIII and XI:1 of the GATT 1994 
2.60.  The European Union asserts that Argentina's analytical framework is not applicable to these 
disputes. Argentina's proposed framework seeks to determine whether an Article VIII formality or requirement constitutes a "restriction" under Article XI:1 of the GATT 1994. However, the 
complainants' claims were not concerned with those elements of the DJAI procedure that are 
formalities or procedural requirements, but with th e DJAI's discretionary system of authorization of 
imports. In the European Union's view, as the discretionary system is not a mere formality or procedural requirement, it falls outside the scope of Article VIII of the GATT 1994. 
2.61.  According to the European Union, even assuming arguendo  that Argentina's framework 
were legally correct, the Panel would not have erred by not applying it. As the Panel found that the 
challenged aspects of the DJAI procedure were no t a mere formality subject to Article VIII of the 
GATT 1994, there was no need to apply such fram ework. Moreover, although the first step of 
Argentina's proposed framework calls for distinguishing the trade-restricting effects of the "formalities" from those of the underlying "substantive rule of importation", it is impossible to 
separate and distinguish between the trade-restricting effects of the DJAI's formalities or 
requirements and those of any underlying conditions or criteria because the latter are unknown. The European Union submits that the panel reports in Korea – Various Measures on Beef  and 
China – Raw Materials  are inapposite to these disputes, because the relevant restrictive effects 
identified by the Panel do not result from the administration of a quota or other underlying 
substantive import rule; rather, they result from a self-standing discretionary system for authorizing imports.  WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  2.62.  As to the second step of Argentina's framework, which calls for an assessment of whether 
the trade-restricting effects of a formality or requirement exceed those ordinarily associated with a formality or requirement of that nature, the European Union contends that it implies a dualistic approach to Article XI:1 of the GATT 1994, with a stricter standard for import formalities and 
requirements. This approach has no basis in the text of Article XI:1 and is not necessary to ensure 
a "harmonious" interpretation of Articles VIII and XI:1 of the GATT 1994, or of Article XI:1 of the 
GATT 1994 and Article 10.1.1(c) of the Agreement on  Trade Facilitation. Argentina overlooks that, 
in some cases, formalities or requirements may be equivalent to those applied by Members with 
respect to the marketing of domestic products (e.g. those related to conformity assessment procedures or sanitary inspection) and, as such, fall outside of the scope of Article XI:1.
129 In the 
European Union's view, Argentina further ignores that, in other cases, formalities and 
requirements will be justified under the exceptions to Article XI:1, including Article XX(d) of the 
GATT 1994. 
2.2.3.3  The application of Article XI:1  of the GATT 1994 to the DJAI procedure 
2.63.  According to the European Union, the Panel considered that the approval of a DJAI was not 
"automatic" in the sense that the authorities may decide not to put a DJAI "in exit status" even when the DJAI has been timely filed and meets all the formal requirements prescribed by the DJAI 
procedure. It is undeniable that the non-approval of a DJAI may have a limiting effect on imports, 
and Argentina's claim is based on its own preconceived ideas about what should be the proper scope of Article XI:1 of the GATT 1994, rather th an on the terms of that provision. Thus, the 
European Union requests the Appellate Body to reject this claim and uphold the Panel's finding. 
2.64.  The European Union submits that Argentina's preconceptions are based on mistaken 
assumptions for the following reasons. First, the DJAI procedure is not a mere "formality" or "procedural requirement", but, instead, a discret ionary system for authorizing imports. Second, 
Argentina is incorrect that the Panel's interpretation implies that most import formalities or 
requirements would be prohibited by Article XI:1 of the GATT 1994. As already explained, 
formalities or requirements enforced at the border that are equivalent to those applied with 
respect to the marketing of domestic products fall outside the scope of Article XI:1, and other 
formalities and requirements may be permitted under other WTO provisions, notably Article XX(d) of the GATT 1994. Third, the Panel's interpretation  of Article XI:1 of the GATT 1994 does not 
render ineffective Article 3 of the Import Licensin g Agreement because a conflict arises only where 
it is impossible to comply simultaneously with both obligations. 
2.3  Arguments of the United States – Appellee 2.3.1  The Panel's terms of reference 
2.65.  The United States requests the Appellate Body to reject Argentina's arguments that the 
TRRs measure is outside the scope of these disputes, and uphold the Panel's findings in its First Preliminary Ruling.
130 The United States argues that the Panel was correct in finding that the 
United States identified the TRRs measure in its consultations request in "substantially similar 
terms" as in its panel request, and that, as a result, the latter did not expand the scope of the dispute.
131 
2.66.  The United States highlights the difference between the language of Article 4.4 and that of 
Article 6.2 of the DSU. While both the consultati ons request and the panel request must identify 
the "measure at issue", the standard for a pane l request requires more precision, i.e. the 
identification of the "specific" measure. The Ap pellate Body has previously considered that the 
difference in the language of these two provisions does not require a " precise and exact identity " 
between the specific measures that were the subject of consultations and the specific measures identified in the panel request, as long as the "essence" of the measures has not changed.
132 The 
specificity required in the consultations requests of the identification of the measure at issue is less 
than that required in the panel request. This is  especially so in the case of unwritten measures, 
                                               
129 In this regard, the European Union re fers to Ad Article III of the GATT 1994. 
130 United States' appellee's submission, para. 50. 
131 United States' appellee's submission, paras. 24 and 26. 
132 United States' appellee's submission, para. 28 (quoting Appellate Body Report, Brazil – Aircraft , 
para. 132 (emphasis original); and Mexico – Anti-Dumping Measures on Rice , para. 137).  WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  considering that the complainant may have incomplete information as regards the "content and 
operation" of the measure at issue prior to consultations. Consequently, the complainant may be unable to identify the " specific measure" at that time, as Article 6.2 will subsequently require it to 
do in its panel request.
133 The United States argues that, since its consultations request identified 
the TRRs in "substantially similar terms" as its panel request, the TRRs measure fell within the 
Panel's terms of reference.134  
2.67.  The United States also contends that its consultations request identified the TRRs in a 
manner that does not indicate that the TRRs measure relates only to the application of the DJAI 
and CI requirements, or that it excludes any claims related to the TRRs. Its consultations request cannot be read as encompassing only " individual written commitments" imposed on and 
undertaken by importers, considering that its cons ultations request did not identify any individual 
instances of application of the requirement to undertake certain commitments.
135 A comparison 
between the United States' consultations request and its panel request shows that the latter identifies the same measure at issue, albeit with greater specificity. Such specificity includes a 
confirmation that the TRRs are not published, and that economic operators normally submit a 
statement or conclude an agreement with Argentina. For the United States, the fact that its consultations request does not contain any reference to "legal instruments" or "measures" does 
not support Argentina's interpretation that the TRRs measure was not identified in its consultations 
request. Given that there are no legal instruments through which Argentina imposes the TRRs measure, there was no reason for the United States to include "legal instruments" or any annex similar to how its consultations request presente d the DJAI and CI requirements, which were the 
only measures implemented through written instruments. 
2.68.  The United States argues that the Panel correctly found that the United States did not 
impermissibly expand the scope of the dispute in its panel request. The Panel considered the 
impact of the alleged "reformulation" of the TRRs  measure, and found that, regardless of whether 
the TRRs measure is considered as part of the DJAI or CI requirements or as a separate measure, the complainants' claims with respect thereto would be the same. The United States also cites the 
Panel's finding that "the characterization of the [TRRs] as a single 'overarching measure' in the 
complainants' panel requests seems to be nothing more than an enunciation in different terms of the complainants' same claims set out in the request[s] for consultations", and this "reformulation" does not per se expand the scope or change the essence of the dispute.
136 In the United States' 
view, even assuming that its consultations request had identified the TRRs measure only as a 
component of either the DJAI or CI requirements , its consultations request and its panel request 
still pertain to the same subject-matter and disput e. The United States argues that, consequently, 
it could validly bring the same "expansive" claim irrespective of the characterization of the 
measure at issue.137 
2.69.  The United States contrasts these disputes with US – Anti-Dumping and Countervailing 
Duties (China) , in which the consultations request identified individual instances of application of a 
measure, while the panel request identified a rule or norm of general application as a measure at issue. In these disputes, the consultations requests did not identify individual instances of application of the TRRs measure. Instead, both the consultations requests and the panel requests 
identified the same measure and brought the same  claims. Therefore, the United States asserts 
that, unlike the panel request in US – Anti-Dumping and Countervailing Duties (China) , there is no 
expansion in the nature of the legal claims against the TRRs measure in these disputes. 
2.3.2  Identification of the single unwritten TRRs measure 
2.70.  The United States requests the Appellate Body to reject all of Argentina's claims on appeal, 
and to uphold the Panel's findings. The United States considers that Argentina has failed to 
confront and discuss the actual content of the co mplainants' evidence on the TRRs, which shows 
systematic and sustained efforts by Argentina to use TRRs to force businesses to act in accordance with Argentina's trade policy objectives, including import substitution and reducing or eliminating 
trade deficits. The evidence also shows that the imposition of TRRs on businesses has not been a 
                                               
133 United States' appellee's submis sion, para. 45. (emphasis original) 
134 United States' appellee's submission, para. 29. 
135 United States' appellee's submis sion, para. 37. (emphasis original) 
136 United States' appellee's submission, para. 47 (quoting First Preliminary Ruling, para. 3.33). 
137 United States' appellee's submission, para. 48. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  series of one-off decisions, but is the result of a measure that Argentine officials maintain but 
never put in writing. The United States further considers that, in addition to relying upon statements by top Argentine officials, the Pane l examined and discussed the evidence concerning 
each of the five identified TRRs. Having comple ted that analysis, the Panel concluded that "the 
requirements constitute different elements that contribute in different combinations and degrees … 
towards the realization of the common policy objectives that guide Argentina's 'managed trade' policy".
138 In the view of the United States, the ev idence overwhelmingly supports the Panel's 
conclusion that Argentina maintains the TRRs me asure, and it strongly undermines Argentina's 
contentions that there could be any question about the validity of the Panel's findings that the measure is attributable to Argentina, well-defined, and of general and prospective effect. 
2.71.  In this context, the United States considers that Argentina's claims on appeal that the Panel 
erred in finding that the single TRRs measure exists and in failing to apply the legal standard 
articulated in US – Zeroing (EC) are misplaced.  
2.72.  With respect to Japan's "as such" findings, the United States considers that Argentina has 
failed to meet the high standard for establishing that the Panel acted inconsistently with Article 11 
of the DSU.  
2.3.2.1  The joint claims against the single TRRs measure 
2.73.  The United States characterizes Argentina's claims that the Panel applied an incorrect legal 
standard in assessing the existence of the TRRs measure as without merit. The complainants met their burden to provide sufficient evidence for the Panel to determine that the TRRs measure 
exists. Although it is likely that, in most cases, a greater volume of evidence is necessary to 
demonstrate the existence of an unwritten measure, the United States considers that such 
likelihood does not mean that there is a higher standard of proof or that a party must do more 
than present sufficient evidence to raise a pres umption of the existence of a measure, merely 
because the measure is unwritten.  
2.74.  The United States also contends that there is no basis for Argentina's argument that the 
Panel erred by failing to require the complainants to demonstrate that the TRRs measure has 
general and prospective application. In particular, the United States considers Argentina's reliance 
on the Appellate Body report in US – Zeroing (EC)  and the panel report in EC and certain member 
States – Large Civil Aircraft  to support the existence of a high er standard of proof for unwritten 
measures to be misplaced. The Appellate Body in US – Zeroing (EC) considered whether the 
"zeroing methodology" could be challenged "as such" as a "rule or norm". In these disputes, 
however, the measure being challenged is not a "rule or norm" as that term was used by the Appellate Body in US – Zeroing (EC) ; rather, the measure takes the form of a decision by 
Argentina to impose the TRRs. Moreover, the Appellate Body in EC and certain member States – 
Large Civil Aircraft considered that it is not necessarily the case that a complainant must 
demonstrate the existence of a rule or norm of general and prospective application to show that a 
measure exists.
139 
2.75.  The United States considers that the facts in these disputes and the analysis that should be 
followed are quite similar to those that were before the panel in EC – Approval and Marketing of 
Biotech Products . That panel concluded that the question with respect to the existence of an 
unwritten measure is the same as that related to any fact asserted by a Member in the course of 
dispute settlement procedures: i.e. whether the ev idence supports the complainants' assertion. 
Moreover, the evidence presented in EC – Approval and Marketing of Biotech Products  is very 
similar to that presented to the Panel here. The United States posits that, like in EC – Approval 
and Marketing of Biotech Products , the evidence here more than sufficed to support the Panel's 
finding that the TRRs measure exists and is susceptible to challenge in the WTO dispute settlement 
process. 
2.76.  As to Argentina's argument that the Panel improperly substituted a standard articulated by 
the panel in US – COOL  for a standard applicable to the identification of an unwritten measure, the 
United States reiterates that there is no separate legal standard applicable to the identification of 
                                               
138 United States' appellee's submission, para. 117 (quoting Panel Reports, para. 6.228). 
139 United States' appellee's submission, para. 133 (referring to Appellate Body Report, EC and certain 
member States – Large Civil Aircraft , para. 794). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  an unwritten measure. The Panel not only considered the three factors highlighted by the panel in 
US – COOL , but also concluded that the evidence de monstrated the existence of each of the 
individual TRRs. The Panel then found that the re quirements were imposed according to the single 
measure identified in the complainants' panel requests. 
2.77.  The United States considers that, even though it did not need to, the Panel did make the 
factual findings that Argentina thinks the Panel needed to make in order to permit a challenge to its unwritten measure. In applying the legal standard relied upon by Argentina – i.e. relying on the 
same evidence presented by the United States – to Japan's "as such" claims, the Panel explicitly 
considered whether the measure's precise content had been established with sufficient precision, and whether the measure has general and prospective effect. Accordingly, for the United States, there would be no basis on which to reverse the Panel's findings even if the Appellate Body were to 
determine that the Panel needed to apply the standard proposed by Argentina. 
2.78.  In addition, the United States considers both "illogical and untenable" Argentina's argument 
that the Panel's failure to apply the legal standard articulated in US – Zeroing (EC)  resulted in an 
improper presumption that a single TRRs measure exists.
140 To support its argument, Argentina 
refers to the Panel's statement that "[t]he fact that the TRRs can be imposed separately does not mean that a single global measure does not exist."
141 However, Argentina's argument rests on its 
selective quotation of the Panel Reports without taking account of the Panel's statement that, "[i]f 
the Argentine Government imposed five requirements at once on a specific economic operator, this would not make the TRRs measure in that particular case any more 'global' as compared to a TRRs measure that consisted of a single requirement."
142 In the view of the United States, the Panel did 
not presume the existence of the TRRs measure; rather, it undertook a lengthy evaluation of 
whether Argentina was imposing each of the TRRs, and whether those requirements were imposed under a single measure. 
2.79.  Finally, the United States considers that the Panel was not "simply asserting the single TRRs 
measure into existence" when it explained that  the TRRs constitute different elements that 
contribute in different combinations and degrees toward the realization of common policy 
objectives that guide Argentina's "managed trade" policy.
143 Rather, in the view of the 
United States, the Panel was highlighting the obvious: the fact that the TRRs contribute in different combinations and degrees to the objectives of Argentina's "managed trade" policy constitutes a 
powerful reason to consider them to be components of a single measure. 
2.80.  The United States considers that the volu minous record evidence, painstakingly examined 
and discussed by the Panel in its Reports, was fully consistent with the above-mentioned findings, and demonstrates overwhelmingly that the TRRs do function together to advance common policy 
objectives, and are often employed in tandem with  respect to particular companies or industries. 
2.3.2.2  Article 11 of the DSU – The Panel's finding on Japan's "as such" claims against 
the single TRRs measure 
2.81.  The United States considers Argentina's claims under Article 11 of the DSU to be without 
merit. Contrary to established Appellate Body jurisprudence, Argentina is recasting its arguments before the Panel under the guise of an Article 11 claim and attempting to circumvent the fact-finding authority of the Panel by citing to the "particular rigour" that is necessary to find the 
existence of an unwritten norm or rule.
144 The United States asserts that, before the Panel and 
now on appeal, Argentina has failed to confront the substantial evidence on the record. 
2.82.  With respect to Argentina's allegations of e rror as to the Panel's evaluation of the evidence 
on the content and general and prospective nature of its measure, the United States submits that 
the Panel fulfilled its obligation to "consider all the evidence presented to it, assess its credibility, 
                                               
140 United States' appellee's submission, para. 145. 
141 United States' appellee's submission, para. 148 (quoting Panel Reports, para. 6.227). 
142 United States' appellee's submission, para. 148 (quoting Panel Reports, para. 6.227). 
143 United States' appellee's submission, para. 149 (quoting Argentina's appellant's submission, 
para. 133; and referring to Panel Reports, para. 6.228). 
144 United States' appellee's submission, para. 159 (r eferring to Argentina's appellant's submission, 
para. 141, in turn quoting Appellate Body Report, US – Zeroing (EC) , para. 198). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  determine its weight, and ensure that its factual findings have a proper basis in that evidence".145 
Using the voluminous evidence on the record , the Panel explored in detail whether the 
complainants had established evidence of the TRRs measure and its contours. The Panel then 
returned to that content in its separate consideration of Japan's "as such" claim, which was based 
on the same evidence as that supporting the United States' claim. In doing so, the United States 
submits, the Panel did not need to repeat its earlier discussion of all the evidence showing the content of the TRRs measure. 
2.83.  The United States considers that the TRRs measure had precise content and was not 
amorphous or ill-defined. As the United States explained to the Panel, pursuant to the TRRs 
measure, "Argentine officials require, as a prior condition for importation, commitments to export a certain dollar value of goods; reduce the volume or value of imports; incorporate local content 
into products; make or increase investments in Argentina; and/or refrain from repatriating 
profits."
146 Furthermore, the Panel properly understood that requiring the level of detail Argentina 
considers necessary "could make it almost impossible in practice to challenge [unwritten] 
measures".147 Argentina considers that the discretionary and non-transparent nature of the TRRs 
measure immunizes it from challenge in the WTO dispute settlement process, but the United States contends that the Panel properly recognized that this cannot be the case. 
2.84.  The United States further disputes Argentina's assertion that the Appellate Body report in 
US – Zeroing (EC)  set out a standard for identifying the precise content of an unwritten measure. 
Argentina has never indicated what it thinks this standard is, and the Appellate Body did not set forth any separate standard for establishing the content of unwritten measures for purposes of an 
"as such" challenge. Rather, the Appellate Body simp ly considered a variety of pieces of evidence 
that were indicative of the content of the measur e, before concluding that the evidence on the 
record was sufficient to identify its precise content. In the United States' estimation, that is 
precisely what the Panel did: it painstakingly es tablished the content of each individual TRR and 
the way that the TRRs operate together as a single measure to support Argentina's import substitution policies.  
2.85.  The United States submits that Argentina's allegations that the Panel erred in finding that 
the TRRs measure is of general application are without merit. The Panel explained that panels in disputes under Article X of the GATT 1994 have interpreted the term "general application" to refer to measures applicable to "an unidentified number of economic operators" or "a range of situations 
or cases", as opposed to measures addressed to a single company or applied to a single shipment, 
and correctly observed that the panel in China – Raw Materials  c o n s i d e r e d  t o  b e  o f  g e n e r a l  
application a measure that had the potential to affect trade and traders.
148 Thus, in the 
United States' view, the Panel properly rejected Argentina's argument that only measures 
applicable to all cases are measures of general application. 
2.86.  The United States also submits that Argentina's argument that the Panel failed to make an 
objective assessment when finding that the measure has prospective effect is equally without 
merit. Citing US – Shrimp (Viet Nam) , Argentina appears to suggest that the Panel should not 
have found prospective effect because the TRRs measure is not applied in all cases. However, nothing about the panel's decision in US – Shrimp (Viet Nam)  suggests such a requirement. 
Rather, that panel was clear that a variety of types of evidence are relevant to whether a measure 
is prospective. Argentina's suggestion that a measure giving discretion to officials cannot be found to be prospective not only "flies in the face " of an ordinary understanding of the term 
"prospective", but also would lead to the "absurd"  result, in the view of the United States, that 
Members could insulate their measures from  challenge by making them discretionary.
149 
2.87.  Finally, as to Argentina's argument that the Panel found that the TRRs measure has 
prospective effect because it has been applied re peatedly, the United States contends that the 
Panel did not find the measure to be prospective solely on the basis of mere repeated application. 
                                               
145 United States' appellee's submission, para. 164 (quoting Appellate Body Report, Brazil – Retreated 
Tyres , para. 185 (fn omitted)). 
146 United States' appellee's submission, para. 171 (q uoting United States' opening statement at the 
second Panel meeting, para. 73). 
147 United States' appellee's submission, para. 171 (quoting Panel Reports, para. 6.325). 
148 United States' appellee's submission, para. 181 (quoting Panel Reports, para. 6.331). 
149 United States' appellee's submission, para. 184. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Rather, the Panel observed that the TRRs measure has been applied for several years, and that 
the measure can be applied to any sector or econ omic operator. The Panel further highlighted that 
the policy of "managed trade" or "trade administration," which the TRRs measure is part of and implements, is publically announced and, crucially, that Argentina's Secretary of Domestic Trade 
has been explicit that this policy will continue . The Panel then explained that evidence on the 
record suggests that these commitments will continue to be required unless and until the policy is repealed or modified. The United States considers that the Panel's conclusion that the measure will 
continue to be applied in the absence of a future policy change is the only logical conclusion to be 
drawn from the evidence. 
2.88.  Based on the foregoing, the United States requests the Appellate Body to reject all of 
Argentina's claims on appeal, and uphold the Panel's findings. 
2.3.3  The DJAI procedure: Articl es VIII and XI:1 of the GATT 1994 
2.89.  The United States submits that the Pane l correctly found that: (i) Article VIII of the 
GATT 1994 does not limit the scope of application of Article XI:1 of the GATT 1994; (ii) Members 
may not exclude a restriction from scrutiny under Article XI:1 merely by characterizing it as a 
procedural, rather than a substantive, measure; and (iii) the DJAI procedure is a non-automatic trade restriction inconsistent with Article XI:1. For the United States, Argentina's arguments on 
appeal must be rejected because they depend up on assuming that conflicts exist where they do 
not and upon imputing concepts and terms into treaty provisions when there is no basis to do so. 
2.3.3.1  The scope of Arti cle VIII of the GATT 1994 
2.90.  The United States submits that Argentina's argument on formalities and requirements is 
misplaced in the context of the DJAI procedure. The Panel did not describe the DJAI procedure as 
a documentation requirement within the scope of Article VIII:1(c) of the GATT 1994. Instead, the 
Panel concluded that the DJAI procedure is not a "mere formality", but rather a procedure by 
which Argentina determines the right to import. Acco rding to the United States, approval of a DJAI 
can be withheld for non-transparent and discretionary reasons. 
2.3.3.2  The relationship between Articles VIII and XI:1 of the GATT 1994 
2.91.  The United States puts forward several reas ons to demonstrate: (i) that Article VIII of the 
GATT 1994 does not limit the scope of Article XI:1 of the GATT 1994; and (ii) that a restriction cannot escape scrutiny under Article XI merely by being characterized as an Article VIII "formality" or "requirement". First, the question of whether or  not "formalities" or "requirements" are included 
or excluded from the scope of Article XI:1 is not directly relevant. According to the United States, 
this is because its claim under Article XI is not focused on "formalities", but rather on the fact that the DJAI procedure is non-transparent and discretionary. 
2.92.  Second, the United States contends that the texts of Articles VIII and XI:1 of the 
GATT 1994 do not support the conclusion that they are mutually exclusive, or that Article XI:1 could not apply to "formalities" or "requirements". Principles of treaty interpretation neither 
require nor condone the imputation into a treaty of words that are not there or the importation 
into a treaty of concepts that were not intended . As the Appellate Body has repeatedly stated, and 
as the Panel recognized, in the light of the principle of effective treaty interpretation, all WTO provisions should be interpreted harmoniously and cumulatively whenever possible. Article VIII 
cannot serve as a derogation from Article XI:1 simply by labelling a restriction as a "formality" or 
"requirement". The primary subparagraph relied on by Argentina, namely Article VIII:1(c) of the 
GATT 1994, contains hortatory language covering only "documentation requirements", and does 
not create an exception to Article XI:1. In the United States' view, accepting Argentina's argument 
would result in the DJAI procedure being subject to no WTO discipline. 
2.93.  Finally, the United States submits that Argentina's reliance on the text of the Agreement on 
Trade Facilitation is misplaced. That Agreement does not have interpretative value for 
understanding the obligations under Article XI of the GATT 1994 because it does not constitute a subsequent agreement of the parties on the interp retation of that provision. In any event, the 
United States argues there is no conflict between Article XI:1 of the GATT 1994 and the WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Agreement on Trade Facilitation, and, as explai ned above, it is not possible to read into 
Article XI:1 concepts not present therein. 
2.94.  In addition, the United States submits that a Member may not shield a trade restriction from 
scrutiny under Article XI:1 of the GATT 1994 merely by characterizing it as a procedural, rather 
than a substantive, measure. Regardless of whether it is "substantive" or "procedural", the DJAI 
procedure is a discretionary restriction, independent from any other measure, because importers cannot import goods until the DJAI is approved, and such approval can be withheld by unidentified 
Argentine agencies on the basis of undisclosed reasons for indeterminate time periods. The DJAI 
procedure constitutes a non-automatic restriction. Article XI:1 applies to all restrictions, whether or not characterized as "procedural" or "substan tive" in nature. The relevant WTO jurisprudence 
does not support the conclusion that a Member may exclude procedural measures from scrutiny 
under Article XI:1. Past panels have recognized that discretionary trade restrictions that do not 
implement any other restrictions, such as a quota, are, on their face, inconsistent with Article XI:1.
150 As in India – Quantitative Restrictions , the DJAI procedure is a discretionary trade 
restriction independent from any other measure, and does not specify criteria governing the 
exercise of discretion. In this context, the United States considers that Argentina's proposed analytical framework is inapposite, because the DJ AI procedure is a discretionary restriction that, 
on its face, does not implement a separate WTO-consistent restriction. 
2.3.3.3  The application of Article XI:1  of the GATT 1994 to the DJAI procedure 
2.95.  The United States disagrees with Argentina' s claim that the Panel erred in concluding that 
the DJAI procedure is inconsistent with Article XI:1 of the GATT 1994 because of its non-automatic 
nature for the following reasons. First, the United States emphasizes the narrow nature of this part 
of Argentina's appeal, and that Argentina has not contested any of the three other elements relied upon by the Panel in support of its finding that the DJAI procedure is inconsistent with Article XI:1.  
2.96.  Second, the United States contends that the DJAI procedure is a non-automatic trade 
restriction because it is a highly discretionary and non-transparent restriction. The Panel found that the Argentine authorities have discretion to grant or deny DJAI applications for undisclosed 
reasons and on grounds that are unrelated to the information that importers are required to 
provide in their DJAIs. Thus, even if an importer complies with all formal DJAI requirements, authorities are free to deny the application on unspecified grounds. 
2.97.  Third, the United States submits that evid ence on the record demonstrates that Argentine 
authorities frequently exercise their discretion to withhold approval to import, often without 
explaining the reasons for "observations". Even after an importer has satisfied all additional demands, authorities may choose not to approve the DJAI application. In the United States' view, 
this evidence reflects the lack of accountability and transparency resulting from the wide discretion 
to restrict imports. 
2.98.  Fourth, the United States submits that th e extended delays in the approval of the DJAI 
applications that have been observed are a relevant factor in concluding that the DJAI process is a 
non-automatic trade restriction. The United States cites evidence in the Panel record of extended 
delays that commonly arise in connection with the DJAI procedure, and recalls that GATT panels made a connection between the timing of application approvals and whether or not a license 
requirement constitutes an Article XI restriction, using the terms "non-automatic" and "automatic". 
2.99.  Finally, the United States submits that Argentina's reliance on the Import Licensing 
Agreement is misplaced because there is no conf lict between Article XI:1 of the GATT 1994 and 
Article 3.2 of the Import Licensing Agreement. More over, the DJAI procedure fails to qualify as an 
automatic licensing measure, and the chapeau to Ar ticle 2.2(a) of the Import Licensing Agreement 
refers to the trade-restricting effects of licensing procedures that do not qualify as "automatic". In 
the United States' view, Article 3.2 of the Import Licensing Agreement is also inapplicable to these 
disputes, because that provision anticipates that there is a separate, WTO-consistent restriction imposed through licensing procedures, but the DJAI procedure is itself a trade restriction. 
                                               
150 United States' appellee's submission, pa ras. 76-80 (referring to Panel Reports, India – Quantitative 
Restrictions ; China – Raw Materials ; and Korea – Various Measures on Beef ). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  2.4  Arguments of Japan – Appellee 
2.4.1  The Panel's terms of reference 2.100.  Japan requests the Appellate Body to dism iss Argentina's claims of error, and underlines 
that there is no basis for the reversal of the Panel's finding that the TRRs measure was within its 
terms of reference. Japan asserts, first, that the Panel did not err in rejecting Argentina's claim 
that the TRRs measure was not properly identified in the complainants' consultations requests and, second, that the subsequent inclusion of the TRRs measure in the complainants' panel requests did 
not expand the scope of these disputes.
151 
2.101.  Japan maintains that, although its consultations request did not explicitly use the term 
"TRR" or "TRRs measure", there is no question that this was precisely what it referred to when it stated that "Argentina often requires importers of goods to undertake certain commitments". 
Argentina itself admitted, which the Panel acknow ledged, that the term "commitments" identified 
in the consultations requests pertain to the "commitments" that Argentina allegedly requires importers to undertake that are separate from th e DJAI and CIs. This set of "commitments", in 
turn, is precisely what the complainants refer to as the TRRs measure in their panel requests. 
Thus, by identifying the TRRs measure plainly and succinctly in its consultations request as one of the measures about which to consult Argentina, Japan satisfied its obligations under the DSU, and 
the Panel correctly found the same.  
2.102.  In addition, Japan refers to Argentina's argument that the "commitments" language could, 
at most, be read to suggest that the complainan ts would be making an "as applied" claim, and 
"cannot possibly encompass an 'as such' or equally broad challenge".
152 Japan asserts that this 
contention is inconsistent with the statement in the consultations request that "Argentina often 
requires the importers of goods to undertake cert ain commitments". This clause suggests that the 
subject of consultations between the parties was precisely Argentina's requirement for companies 
to undertake commitments, in addition to the individual commitments themselves. Nothing in the 
consultations request indicates that Argentina's requirements for companies to undertake commitments would be outside the scope of the dispute. Consequently, a reading of Japan's 
consultations request does not support Argentina's narrow interpretation that Japan exclusively 
put forward an "as applied" challenge. 
2.103.  Further, Japan points out that Argentina's concerns hinge on the fact that the consultations 
requests did not explicitly identify: (i) the TRRs "commitments" or "requirements" as an 
"overarching" or "single measure"; or (ii) the cl aims as "as such" or "as applied" challenges. 
However, nothing in the DSU suggests that any kind of specific reference to the "type of challenge" (i.e. "as such" and/or "as applied") or the "nature of the measures" that are alleged to have 
violated a Member's WTO commitments (i.e. whether these are single or multiple individual 
measures) needs to be included in the consultations request.
153 Citing prior Appellate Body 
jurisprudence, Japan underscores that consultations help complainants to define the scope of their 
challenges and the nature of the measures at issue. Thus, the Appellate Body has, in the past, 
upheld "as such" challenges even where the request for consultations did not specifically indicate that the claim would be an "as such" claim. 
2.104.  Japan emphasizes the similarity between its consultations request and its panel request, 
both of which identify the "Argentine requirement for importers to undertake certain actions", and 
classify these actions into "the open list of five categories". As between its consultations request and its panel request, there are only two "potentially relevant differences", namely: (i) its panel 
request used the term "Restrictive Trade Related Requirements" to describe the specific measure 
at issue, while its consultations request did not; and (ii) its panel request stated that the TRRs measure "and any application thereof" are inconsistent with Argentina's WTO obligations.
154 The 
Panel took account of this evidence and nevertheless found, in the light of the striking similarity in 
the two documents, that Japan's consultations re quest and panel request identify the same TRRs 
measure, and that the "nature" and the "scope" of  the measure were the same in both documents. 
                                               
151 Japan's appellee's submission, para. 44. 
152 Japan's appellee's submission, para. 29 (quoting  Argentina's appellant' s submission, para. 28). 
153 Japan's appellee's submission, para. 37. 
154 Japan's appellee's submission, para. 30. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Hence, the Panel correctly found that Japan's panel request did not impermissibly expand the 
scope of the dispute or change its essence. 
2.105.  Moreover, while Argentina anchors its claims on US – Anti-Dumping and Countervailing 
Duties (China) , Japan emphasizes that the present disputes do not resemble that case. The 
findings in US – Anti-Dumping and Countervailing Duties (China)  were based on the principle that 
the identification of specific instances of application of measures in a consultations request does not automatically permit the inclusion of a separate "general authority or legal basis" for those 
specific instances of application.
155 Thus, that dispute does not stand for the proposition that all 
"as such"  claims must be explicitly identified in the consultations request. Unlike the factual 
circumstances in US – Anti-Dumping and Countervailing Duties (China) , the complainants in these 
disputes did not identify in their panel requests a new and separate "general authority or legal 
basis". Instead, the consultations requests and the panel requests identify the same requirements 
that compose the measure at issue, and the absence of the words "as such" in the consultations requests is immaterial. 
2.106.  Finally, Japan underscores that it is clear from Argentina's first written submission to the 
Panel and request for a preliminary ruling that Argentina was in fact well aware of the case against which it had to defend itself. Hence, Argentina was not prejudiced by what it now claims to be an 
omission from the complainants' consultations requests. 
2.4.2  Identification of the single unwritten TRRs measure 2.107.  Japan requests the Appellate Body to reject Argentina's claim that the Panel erred in failing 
to apply the correct legal standard to ascertain the existence of the single TRRs measure. Japan 
also requests the Appellate Body to uphold, without modification, the Panel's findings at 
paragraphs 7.9.d through f of the Panel Reports. In addition, for the sake of completeness, and to avoid any future confusion in the implementation stage and to ensure the effective resolution of 
these disputes, Japan requests the Appellate Body to confirm that both of the "as applied" findings 
sought by Japan were addressed by the Panel's findings on the joint claims by the three complainants at paragraphs 6.265, 6.295, 7.9.e, and 7.9.f of the Panel Reports. To the extent 
needed, Japan requests the Appellate Body to complete the legal analysis. 
2.108.  Japan also rejects Argentina's claim that the Panel failed to meet its obligations under 
Article 11 of the DSU in finding that Japan had established the precise content and general and prospective application of the TRRs measure in its challenge against the TRRs measure "as such", 
and requests the Appellate Body to reject Argentina's appeal and uphold the Panel's findings on 
Japan's "as such" claims. 
2.4.2.1  The joint claims against the single TRRs measure 
2.109.  Japan claims that the Panel applied the correct legal standard in finding that the TRRs 
measure is inconsistent with Articles XI:1 and III:4 of the GATT 1994. For Japan, the findings on 
the joint claims by the three complainants were not "as such" findings, but were related to the 
existence and operation of the single TRRs measure. For this reason, the Panel was correct not to 
apply the legal standard articulated in US – Zeroing (EC) in making these findings. In addition, 
Japan considers that, when the Panel reached its "as such" findings, the Panel applied precisely the legal framework that Argentina says it should have applied. In Japan's view, it is quite clear that 
the findings on the joint claims by the three complainants cover " the application or operation of 
the single TRRs measure, both systematically and in individual instances ".
156 
2.110.  In Japan's view, Argentina's entire argument is based on "the false premise" that the 
Panel's findings on the joint claims by the three complainants were "as such" findings.157 Japan 
cautions, however, that a careful review of the Panel's findings confirms that these were not "as such" findings. First, the Panel made separate "as such" findings in addressing Japan's "as such" 
claims. By refraining from using the term "as such" for its findings on the joint claims, the Panel 
made it clear that these findings were not "a s such" findings. Second, the Panel referred to EC and 
                                               
155 Japan's appellee's submission, para. 41 (quoting Panel Report, US – Anti-Dumping and 
Countervailing Duties (China) , paras. 14.38 and 14.39). 
156 Japan's appellee's submission, para. 45. (emphasis original) 
157 Japan's appellee's submission, para. 48. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  certain member States – Large Civil Aircraft , in which the Appellate Body stated that a 
determination that a measure has general and prospective application is not essential in all challenges against unwritten measures, but only if a challenge is against the measure "as such".
158  
2.111.  For Japan, this point demonstrates the Panel's intention to reserve its analysis of the 
general and prospective character of the TRRs me asure for the "as such" analysis while proceeding 
with the "single measure" analysis – exactly as it did in addressing the joint claims. Moreover, though it did not explicitly say so, the Panel appe ared to respond to both types of "as applied" 
findings requested by Japan – i.e. broad "as applied" findings and findings against the TRRs 
measure in each and every instance of its application – in addressing the joint claims. By contrast, the Panel then dealt with Japan's separate "as such" challenge. Japan adds that the Panel was 
correct not to treat its broad "as applied" claims together with the claims of the other 
complainants' "as such" claims. Japan emphasizes, in this connection, that the mere fact that 
claims would result in prospective compliance obligations, or that they are not only about specific instances, does not mean that the claim itself  is an "as such" claim or that "general and 
prospective" application must be shown. 
2.112.  In the light of the above, Japan contends that Argentina has failed to engage with any of 
the clear textual evidence showing that the Panel's findings on the joint claims were not findings 
on "as such" claims. Moreover, Argentina does not explain why, in its view, these findings were 
supposedly "indistinguishable" from the findings on Japan's "as such" claims, even though, in Japan's view, the Panel clearly distinguished thes e two separate sets of findings. Although the 
Panel's findings on Japan's "as such" claims could be read to rely on – and somehow incorporate – 
the Panel's earlier findings on the joint claims, Japan considers that the Panel's findings on the 
joint claims nonetheless stand on their own and led to the separate and independent conclusion that the "single" TRRs measure exists. 
2.113.  From a systemic point of view, Japan considers that, if unwritten measures could be 
challenged only on the basis of the "as such" criteria outlined in US – Zeroing (EC) , then the 
requirements for challenging an unwritten measure would effectively be more stringent than for a 
written measure. In Japan's view, this would have the effect of, inter alia , encouraging 
WTO-inconsistent behaviour via unwritten rather than written measures. 
2.114.  Finally, Japan notes that Argentina argues that: (i) the Panel erred because, instead of the 
legal standard in US – Zeroing (EC) , it applied the legal standard in US – COOL , Japan – Apples , 
and US – Tuna II (Mexico) ; (ii) the latter three cases should be distinguished from the current 
case in that they addressed written  underlying measures; and (iii) by applying the legal standard 
from these three cases, the Panel erred because it essentially applied the analysis "backwards".
159 
2.115.  Japan considers that these three arguments must fail for several key reasons. Argentina's 
first argument appears to confuse two separate and distinct concepts that the Panel discusses in separate parts of its Reports: (i) whether there is evidence of the existence of a single measure as 
described by the complainants; and, if so, (ii) whether there is evidence that this measure has 
general and prospective application. Japan contends that Argentina's second argument is "obviously incorrect": the Panel cited the three above-mentioned disputes to assess whether to 
examine certain instruments as one single measure or separate measures, but only after 
determining, on the basis of individual instances of the TRRs measure's application, that the 
individual TRRs exist.
160 With respect to Argentina's third argument, Japan points out that the 
Panel applied the US – Zeroing (EC) legal standard to reach its "as such" findings against the TRRs 
measure. Even assuming  arguendo  that Argentina's reading of the Panel Reports were correct – 
i.e. that the findings on the joint claims should in fact be understood to be tacitly "as such" or that a finding of "general and prospective nature" was otherwise required – Argentina's appeal would 
still fail, because the Panel subsequently revi ewed the evidence concerning the general and 
prospective nature of application of the measure, and found it compelling. Accordingly, the Appellate Body could simply rely on those findings to uphold the Panel's findings and/or complete the legal analysis. 
                                               
158 Panel Reports, para. 6.42 (refe rring to Appellate Body Report, EC and certain member States – Large 
Civil Aircraft , para. 792). 
159 Japan's appellee's submission, para. 65. 
160 Japan's appellee's submission, para. 67. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  2.4.2.2  Article 11 of the DSU – The Panel's finding on Japan's "as such" claims against 
the single TRRs measure 
2.116.  Japan requests the Appellate Body to reject Argentina's claims under Article 11 of the DSU 
and to uphold the Panel's "as such" findings. In Japan's view, Argentina fails to identify any 
legitimate basis upon which to question the objectivity of the Panel's finding. Japan considers that 
Argentina has failed both to provide the Pane l with requested evidence and to dispute the 
existence of the "managed trade" policy. Moreover , Argentina has not provided any evidence that 
the "managed trade" policy or the TRRs will not be applicable in the future. Japan considers that 
these factors, alone or in combination with the arguments and evidence submitted by the 
complainants, constitute a more than adequate ba sis for the Appellate Body to uphold the Panel's 
findings and to reject Argentina's claims on appeal. 
2.117.  Referring to Argentina's claims that the Panel failed to meet its obligations under Article 11 
of the DSU in finding that Japan, in its "as such" claim, had established the precise content and general and prospective application of the TRRs measure, Japan underlines that the Appellate Body 
has found repeatedly that it is the province of panels as the triers of fact to weigh and balance the 
evidence, and that the Appellate Body will only in terfere with the panel's discretion in the case of 
an "egregious error that calls into question the good faith of a panel", in violation of "due process 
of law or natural justice".
161 For Japan, then, unless Argentina can establish that there is an 
egregious error in the Panel's findings, Argentina's appeal should be rejected and the Panel's findings should be upheld. Moreover, the Article 11 standard is the same regardless of whether a claim is "as such" or otherwise, and regardless of whether the measure is written or unwritten. 
Even though Argentina states that particular rigour  is required on the part of a panel to support a 
conclusion of the existence of a "rule or norm" that is not expressed in the form of a written document, this statement cannot be interpreted to result in a more stringent application of 
Article 11 of the DSU, or in an evidentiary threshol d that is so high as to be nearly impossible to 
meet. 
2.118.  Japan considers that the Panel found that the complainants had submitted sufficient 
evidence to establish the content of the TRRs measure with enough precision so as to allow the 
Panel to evaluate the measure's WTO-consistency. Any imprecisions in the contours of the TRRs measure challenged by the complainants were due to Argentina's own refusal to provide information requested by the Panel. Japan stresses that, if Argentina believes that "flexibility and 
versatility" were in fact not essential elements of the TRRs measure, then it should have provided 
the Panel with evidence to that effect.
162 
2.119.  Japan contests Argentina's claims that the Panel "lightly assumed" the content of the TRRs 
measure, and that its analysis, therefore, falls below the minimum threshold required for an 
objective assessment of the matter under Article 11 of the DSU. Argentina considers that the "alleged 'overarching' TRRs measure invented by the complainants for the purposes of these 
disputes is amorphous and ill-defined, and its content cannot  be identified with the requisite 
degree of precision."
163 For Japan, however, Argentina's argument wrongly assumes that 
"flexibility and versatility" can never be features  of measures susceptible to "as such" challenges, 
and that, if it is unclear exactly how Argentina enforces the TRR in any particular circumstance, 
then the content of the TRRs measure cannot be established precisely. 
2.120.  Japan cautions that accepting Argentina's "excessively demanding" standard for precision 
would encourage other Members to adopt similarly non-transparent measures so as to keep them 
hidden from WTO scrutiny.164 Moreover, such standard has no basis in the covered agreements or 
in prior panel or Appellate Body reports. Rather, panels and the Appellate Body have acknowledged that, when a challenge is brought against an unwritten measure, the existence and 
the precise contours of the alleged measure may not always be certain or crystal clear. In this 
light, Japan agrees with the Panel that the "precise  content" element of an "as such" analysis turns 
on whether, "based on the available evidence, both a panel and the respondent party have a clear 
                                               
161 Japan's appellee's submission, para. 76  (quoting Appellate  Body Reports, EC – Hormones , para. 133; 
and Canada – Wheat Exports and Grain Imports , para. 195). 
162 Japan's appellee's submission, para. 88. 
163 Japan's appellee's submission, para. 89 (quoting  Argentina's appellant's submission, para. 172). 
(emphasis added by Japan) 
164 Japan's appellee's submission, para. 90. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  understanding of the components and the operation of the challenged measure."165 Japan submits 
that, as the Panel found, the complainants met this standard by demonstrating that the TRRs measure consists of the Argentine authorities' impo sition on economic operators of one or more of 
five specific trade-related requirements as a condition to import goods into Argentina. 
2.121.  Japan challenges Argentina's claim that the Panel's findings regarding the general 
application of the TRRs measure lacked a sufficient basis in the evidence to support that the TRRs 
measure applies to all imports, all importers, and all economic operators that utilize imported 
items for manufacture in Argentina. Japan considers that a measure need not apply in all cases in 
order to be "general". Japan refers, in this regard, to US – Underwear , in which the Appellate Body 
stated that the term "general" in Article X of the GATT 1994 should be understood as covering "Members and other persons affected, or likely to be affected, by governmental measures 
imposing restraints, requirements and other burdens".
166 Japan also points to dictionary definitions 
that, in its view, confirm that the ordinary meaning of "general" is more akin to "typically" or "in most instances" than to "always" or "without any exception". In Japan's view, Argentina stakes its 
view on a definition of the term "general" that is not consistent with either the ordinary meaning of 
this term or prior panel and Appellate Body inte rpretations thereof. The Panel applied the correct 
standard of "general" application to the facts and acted within the scope of its discretion in finding 
that "the TRRs measure can apply to any economic operator, regardless of the sector in which it 
operates and its size".
167 Japan notes that, in any event, "even when the TRRs measure may not 
be applied in each and every single instance in the precise same way, it is certainly always 'applicable', in the sense that importers can, at any time, be asked to make TRRs commitments 
and 'comply' with the measure, as described and found in the Panel Report."
168 
2.122.  In addition, Japan considers that Argentina's arguments on the "prospective" element of 
the analysis do not identify any error at all, let alone an error that rises to the level required for a 
finding of inconsistency with Article 11 of the DSU. Rather, Argentina attempts to draw a narrow 
factual distinction between the facts of US – Shrimp (Viet Nam)  and those of these disputes. 
Nevertheless, in Japan's view, Argentina ignores the fact that, while the panel in US – Shrimp 
(Viet Nam)  was asked to make findings against a measure on the basis of only four instances of its 
application, the Panel in this case identified hundreds of instances over several years as from 2009. 
2.123.  Japan rejects Argentina's insinuation that the Panel did not cite sufficient evidence in 
finding that the TRRs measure applies prospectivel y. In particular, Argentina states: "[T]he Panel 
only cited a single piece of evidence, Panel Exhibi t JE-759, in support of its conclusion that the 
alleged TRRs measure implements a 'deliberate policy'."
169 Japan considers that, in making this 
argument, Argentina is asking the Appellate Body to second-guess the Panel's weighing of factual 
evidence. Moreover, according to Japan, Argentina's carefully worded criticism ignores the Panel's description of Exhibit JE-759 as an "example" of  the available evidence showing the prospective 
character of the measure, and the Panel's cross-references to paragraphs 6.230, 6.334, and 6.335 
of its Reports, which in turn discuss other evidence and cross-refer to still further evidence regarding the deliberate and therefore pros pective character of the TRRs measure. 
2.124.  Japan also points out that Argentina fell short with respect to its duty to cooperate under 
Article 13 of the DSU and cannot be allowed to hold that against the complainants. Argentina itself 
has not at any point disputed the existence of th e "managed trade" policy, provided any evidence 
that the TRRs are one-off individual requirements , or provided any evidence that the "managed 
trade" policy or the TRRs will not be applicable in the future. Alone or in combination with the 
arguments and evidence submitted by complainants, Japan considers this to be a more than adequate basis for the Panel's findings and for the Appellate Body to uphold them and reject 
Argentina's claims on appeal. 
                                               
165 Japan's appellee's submission, para. 92 (quoting Panel Reports, para. 6.325). 
166 Japan's appellee's submission, para. 96 (quoting Appella te Body Report, US – Underwear , p. 21, 
DSR 1997:I, p. 29). 
167 Japan's appellee's submission, para. 98 (quoting Panel Reports, para. 6.335). 
168 Japan's appellee's submission, para. 99 (referring to Panel Reports, para. 6.335). 
169 Japan's appellee's submission, para. 103 (quoting Argentina's appellant's submission, para. 197). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  2.4.3  The DJAI procedure: Articl es VIII and XI:1 of the GATT 1994 
2.125.  Japan requests the Appellate Body to reject Argentina's claims of error, and affirm all of 
the Panel's findings and reasoning in connection with the DJAI procedure. Japan submits that Argentina fails to identify any error in the Panel's reasoning, and that, even if Argentina's 
arguments were correct, they would not justify Argentina's requests, because the DJAI procedure 
is not a mere import formality, but rather a restriction under Article XI:1 of the GATT 1994. 
2.4.3.1  The scope of Arti cle VIII of the GATT 1994 
2.126.  Japan submits that the Panel's finding that the DJAI procedure is "not a mere [customs] 
formality" was based on an objective assessment of undisputed facts and their legal relevance, in accordance with Article 11 of the DSU.
170 Japan contends that the inconsistency with Article XI:1 of 
the GATT 1994 results from the import-restricting na ture of the DJAI procedure itself, rather than 
any finding as to whether customs formalities are covered by Article VIII of the GATT 1994. 
2.4.3.2  The relationship between Articles VIII and XI:1 of the GATT 1994 2.127.  Japan points out that Argentina does not appear to have appealed the Panel's finding that 
Article XI:1 of the GATT 1994 applies to the DJAI procedure irrespective of Article VIII of the 
GATT 1994 – i.e. that these provisions "are not mutually exclusive".
171 Japan also asserts that 
Argentina's DJAI-related arguments assume that the DJAI procedure does not itself have 
trade-restricting effects inconsistent with Article XI :1 of the GATT 1994. If this unsupported factual 
assumption is dropped, the Panel's findings must  be upheld. Japan emphasizes that the Panel's 
findings of inconsistency with Article XI:1 were based on the import-restricting nature of the DJAI procedure itself, and that Argentina has not appealed the Panel's factual findings to this effect. 
2.128.  In Japan's view, Argentina's argument concerning the status of import formalities and 
requirements under Article VIII of the GATT 1994 and its relationship to Article XI:1 of the 
GATT 1994 is without merit in these disputes, even assuming that import formalities and 
requirements are inherently WTO-consistent if they restrict trade as an "ordinary incident" of the 
formality or requirement itself. This is because the DJAI procedure, whether it is a customs formality or not, has trade-restricting effects beyond the level of any ordinary incident of 
restrictions associated with the formality or requirement itself. 
2.129.  With respect to Argentina's proposed framework, Japan submits that this has no textual 
basis in the GATT 1994, and would require reading words into the text of the Agreement which are 
simply not there. Even if Article VIII were an affi rmative defence, the burden of proof should fall 
on the respondent, rather than on the complainant. Moreover, according to Japan, Argentina did 
not argue before the Panel that the DJAI procedure should have been separated into substantive rules or measures, on the one hand, and "mere formalities", on the other hand. 
2.130.  Japan considers that a harmonious interpretation can easily be achieved without reading 
unstated amendments into the text of Article XI:1 of the GATT 1994. First, Article VIII:1(a) of the 
GATT 1994 imposes an affirmative obligation not to impose formalities and requirements of a 
certain kind, rather than an affirmative defence or a carve-out from other WTO obligations. This 
interpretation is confirmed by the context of Ar ticle VIII, because, where the treaty drafters 
intended to insert carve-outs from other Articl es of the GATT 1994, they did so explicitly. In 
addition, the negotiating history of Article VIII supports Japan's understanding, because, while the 
negotiators ensured that the coverage of Articl e VIII of the GATT 1994 would not overlap with that 
of Article III of the GATT 1994, they  chose not to do the same with respect to Article XI of the 
GATT 1994.
172 The obligations under Article VIII:1(c) are hortatory, and do not recognize that 
formalities and requirements per se  will necessarily have trade-restricting effects. Any 
trade-restricting effect of formalities or requirements is proscribed under Article XI:1. Second, Article XX(d) of the GATT 1994 already serves as the appropriate affirmative defence for import 
formalities with legitimate trade-restricting effects. Thus, Japan considers that it would, in fact, be 
                                               
170 Japan's appellee's submission, para. 134 (referring to Panel Reports, paras. 6.460-6.474). 
171 Japan's appellee's submission, para. 106 (referring to Panel Reports, para. 6.474). (emphasis 
original) 
172 Japan's appellee's submission, para. 120 (referring to Havana Reports, p. 76, para. 35 (Panel 
Exhibit JE-772)). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  inconsistent with the very structure of the GATT 19 94 if Article VIII were interpreted to provide for 
additional exceptions or carve-outs. 
2.131.  Finally, Japan considers that the panel reports in Korea – Various Measures on Beef  and 
China – Raw Materials , relied on by Argentina, stand only for the proposition that, to be 
inconsistent with Article XI:1 of the GATT 1994, a challenged measure must itself have 
trade-restricting effects, and the effects caused  by other measures, including an underlying 
measure (if any), should not be attributed to th at measure at issue. In Japan's view, the fact 
pattern in India – Quantitative Restrictions  is more similar to the current disputes, because, in that 
dispute, the discretionary licensing system consti tuted the restriction on imports, and, in the 
current disputes, the DJAI procedure itself (rathe r than an additional or independent measure) 
constitutes the restriction on imports.173 
2.4.3.3  The application of Article XI:1  of the GATT 1994 to the DJAI procedure 
2.132.  Japan considers that, even under the legal framework advanced by Argentina, Argentina's 
arguments in relation to the DJAI procedure are in sufficient to justify Argentina's request that the 
Appellate Body reverse the Panel's findings at paragraph 6.479 of the Panel Reports, 
paragraph 7.2.a of the EU Panel Report, paragraph 7.6.a of the US Panel Report, and paragraph 7.10.a of the Japan Panel Report.
174  
2.133.  Japan submits that Argentina fails to sh ow that the Panel erred in citing the DJAI 
procedure's non-automatic character as one of four independent bases for finding it to be inconsistent with Article XI:1 of the GATT 1994 for the following reasons.  
2.134.  First, Japan considers that the Panel's ultimate findings could still be upheld on the basis of 
the other three independent bases for the Panel's finding of inconsistency that are not challenged 
by Argentina on appeal.  
2.135.  Second, in Japan's view, non-automaticity alone, if understood not just as a "delay", but as 
the possibility that imports may never occur is, by definition, enough for a finding of inconsistency 
with Article XI:1 of the GATT 1994. The non-automa ticity of the DJAI procedure lies in the fact 
that, in order to transition to "exit" status, a DJAI must have either no observation, or, if one is 
entered, it must be lifted by the Argentine ag ency concerned. Unlike with automatic import 
licences, there is no pro forma  step or set of steps to ensure that the licence will be granted. 
Accordingly, Japan submits that the Panel's finding that non-automaticity contributes to the DJAI procedure's WTO-inconsistency does not imply that all licences causing a delay in importation 
are necessarily inconsistent with Article XI:1. 
2.136.  Third, Japan considers that Argentina incorrectly conflates inconsistency with 
Article XI:1 of the GATT 1994 with inconsistency with WTO law as a whole. The Panel's finding that 
non-automaticity contributes to an inconsistency with Article XI:1 does not somehow imply that 
non-automatic import licences are necessarily WTO-inconsistent. Japan notes, for example, that a non-automatic import licensing procedure can be inconsistent with Article XI:1, but fall under an 
exception, such as Article XX of the GATT 1994, and therefore be GATT-consistent. 
2.137.  Finally, Japan notes that Argentina's refe rences to the Agreemen t on Trade Facilitation 
cannot serve as an interpretative tool, because this agreement was under negotiation as of the establishment of the Panel. In any event, Japan considers that Argentina has failed to demonstrate 
that the negotiating text is inconsistent with Japan's interpretation of the relationship between 
Articles VIII and XI of the GATT 1994, or should ch ange the findings of the Panel in this regard. 
                                               
173 Japan's appellee's submission, paras. 126 and 127 (referring to Panel Report, Korea – Various 
Measures on Beef , para. 782). 
174 Japan's appellee's submission, para. 111 (referring to Argentina's appellant's submission, para. 243). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  2.5  Claims of error by the Eu ropean Union – Other appellant 
2.5.1  The Panel's terms of reference 2.138.  The European Union appeals the Panel's finding that the 23 measures described by the 
European Union in its first written submission to the Panel as "specific instances" of application of 
the TRRs were not clearly identified in the EU Pane l Request and did not, therefore, fall within the 
Panel's terms of reference. The European Union re quests the Appellate Body to reverse the Panel's 
finding in paragraph 7.1.c of the EU Panel Report, and to find instead that the 23 measures in 
question fell within the Panel's terms of reference as "measures at issue".
175 
2.139.  The European Union recalls that, in order to ensure compliance with both the letter and the 
spirit of Article 6.2 of the DSU, a panel must determine whether a panel request is sufficiently clear on the basis of an objective examination of th e request as a whole, as it existed at the time 
of filing, on the basis of the language used ther ein, and in the light of attendant circumstances.
176 
A measure may be identified either by its form or  by its substance, and "the identification of a 
measure within the meaning of Article 6.2 need be fr amed only with sufficient particularity so as to 
indicate the nature of the measure and the gist of what is at issue".177 The European Union further 
highlights the Appellate Body's finding that, "so long as each measure is discernable in the panel request, the complaining party is not required to identify in its panel request each challenged 
measure independently from other measures in order to comply with the specificity requirement in 
Article 6.2 of the DSU".
178 
2.140.  The European Union argues that the Panel erred in finding that the 23 specific instances of 
application of the TRRs described in section 4.2.4 of the European Union's first written submission 
to the Panel were not precisely identified and did not constitute "measures at issue". The language 
of the EU Panel Request shows that the European Union was not only challenging the existence of 
an overarching measure, but also challenging separately several actions taken by Argentina that 
are of the same nature as those described under the overarching measure. Annex III to the 
EU Panel Request lists 29 instances when Argentina imposed certain TRRs that share the same characteristics as the five requirements described as part of the overarching measure. For each of 
these 29 instances of application, Annex III to the EU Panel Request contains a reference to the 
relevant press release, which describes the measures at issue in terms of the entity or entities concerned, the date and the nature of the requ irements imposed by the Argentine Government, 
and the commitments that the entity or entities undertook. The European Union asserts that the 
Panel erred in concluding that it was not possible to identify the specific measures at issue from 
the information contained in the title of the press release as well as its content. 
2.141.  In this regard, the European Union gives th e example of Case 4, the article with the title 
"La comercializadora de Porsche acordó compensar importaciones con exportaciones de vinos y 
aceites " ("Porsche importer agrees to offset imports wi th exports of wine an d oil"), and explains 
that this press release clearly describes the on e-to-one requirement imposed by Argentina on 
Porsche, as announced on 30 March 2011. The one-to-one requirement shown in Case 4 
corresponds to the requirement to balance imports with exports described in the first paragraph of 
section 3 of its panel request. Thus, the European Union contends that, on the basis of an objective examination of the EU Panel Request, the 23 specific instances of application of TRRs 
were identified with sufficient particularity to make each measure at issue discernible from its 
panel request. 
2.142.  The European Union also raises a conditional appeal. If the Appellate Body were to reverse 
or otherwise declare moot and of no legal effect  any of the Panel's findings that, first, the 
TRRs measure exists, and, second, the TRRs measure is inconsistent with Articles XI:1 and III:4 of the GATT 1994, then the European Union requests  the Appellate Body to complete the legal 
                                               
175 European Union's other appe llant's submission, para. 23. 
176 European Union's other appellant's submission, para. 11 (referring to Appellate Body Reports, 
Korea – Dairy , paras. 124-127; US – Carbon Steel , para. 127; and US – Countervailing and Anti-Dumping 
Measures (China) , para. 4.8). 
177 European Union's other appellant's submission , para. 12 (quoting Appellate Body Report,  
US – Continued Zeroing , para. 169). 
178 European Union's other appellant's submission , para. 12 (quoting Appellate Body Report,  
US – Continued Zeroing , para. 170). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  analysis and find that Argentina violated Article XI:1 and/or Article III:4 of the GATT 1994 in each 
of the 23 specific instances described in the Europe an Union's first written submission to the Panel. 
To this end, the European Union states that there are sufficient factual findings by the Panel and uncontested facts on the record to allow the Appellate Body to complete the legal analysis. 
2.6  Arguments of Argentina – Appellee 
2.6.1  The Panel's terms of reference 2.143.  Argentina does not take a position on the merits of the European Union's other appeal 
concerning the 23 specific instances of application of TRRs in its first written submission to the 
Panel. However, Argentina requested the Appe llate Body to explore the merits of the 
European Union's arguments during the oral hearing. Nevertheless, Argentina recalls that, before the Panel, Argentina argued that the 29 separate measures included in the EU Panel Request were 
outside the Panel's terms of reference, because those separate measures had not been identified 
in the European Union's consultations request. Th e Panel, however, did not address this argument. 
If the Appellate Body were to reverse the Pane l's ultimate finding in paragraph 7.1.c of the 
EU Panel Report, then Argentina requests the Appellate Body to find that the 23 measures 
described in the European Union's first written submission were outside the Panel's terms of reference, because the addition of these 23 specific instances of application impermissibly 
expanded the scope of the dispute. 
2.144.  Argentina points to the Appellate Body's explanation of the requirements of Article 6.2 of 
the DSU, in particular: that, in determining whether a panel request is sufficiently precise under Article 6.2, a panel must "scrutinize carefully the panel request, read as a whole, on the basis of 
the language used"; that a panel's terms of reference must be determined on the basis of a panel 
request as it existed at the time of filing; and th at "a party's submissions during panel proceedings 
cannot cure a defect in a panel request."
179 
2.145.  According to Argentina, the European Union's sole argument in support of its assertion that 
the EU Panel Request identified the 23 measures described in the European Union's first written submission to the Panel with sufficient particularity rests on an appendix to its other appellant's 
submission. In this appendix, the European Union links each of the 23 instances of application of 
the TRRs listed in Annex III to the EU Panel Request to information contained in the European Union's first written submission. Argentina argues that, regardless of whether this appendix is admissible at the appellate stage, the European Union appears to be belatedly 
supplementing the description of the measures at issue set out in its panel request by providing 
further explanation in its first written submission. In Argentina's view, this appendix appears to support the Panel's finding that the panel request was deficient on its face, considering that the 
identification of these 23 specific instances of application of the TRRs as measures was discernable 
only from the information appearing in the European Union's first written submission. 
2.146.  Despite not taking a position on the merits of the European Union's other appeal, 
Argentina maintains that the addition in the EU Panel Request of the specific instances of 
application of the alleged TRRs as separate measures at issue impermissibly expanded the scope of the dispute on the ground that these measures  were not identified in the European Union's 
consultations request. The European Union's consultations request identified only the DJAI and the 
CIs as measures. The consultations request did not contain any reference to unwritten measures 
or legal instruments that secured compliance with the alleged "commitments" on which the issuance of DJAIs and CIs are conditioned. Argentin a contends that the non-identification of these 
specific instances in the European Union's consultations request would have been an independent 
basis for the Panel to find that these measures fe ll outside its terms of reference. Thus, Argentina 
states that, even if the Appellate Body were to reverse the Panel's finding in paragraph 7.1.c of the 
EU Panel Report, and find that the 23 instances of application of the TRRs are "specific measures 
at issue" under Article 6.2 of the DSU, the addi tion of these 29 specific instances impermissibly 
                                               
179 Argentina's appellee's submission, pa ra. 14 (quoting Appellate Body Report, EC and certain member 
States – Large Civil Aircraft , paras. 641 and 642, and referring to Appellate Body Reports, EC – Bananas III , 
paras. 142 and 143; US – Carbon Steel , para. 127; US – Oil Country Tubular Goods Sunset Reviews , 
paras. 164 and 169; US – Continued Zeroing , para. 161; and US – Zeroing (Japan) (Article 21.5 – Japan) , 
para. 108). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  expanded the scope of the dispute for not having been properly identified by the European Union 
in its request for consultations. 
2.7  Claims of error by  Japan – Other appellant 
2.7.1  The Panel's exercise of judicial econ omy on Japan's claim under Article X:1 of the 
GATT 1994 
2.147.  Japan requests the Appellate Body to reverse the Panel's decision to apply judicial 
economy with respect to Japan's claim that the TRRs measure is inconsistent with Article X:1 of 
the GATT 1994. According to Japan, the Panel acted inconsistently with Articles 3.4, 3.7, 7.2, 
and/or 11 of the DSU by exercising judicial ec onomy on this claim because the scope and content 
of Article X:1 is distinct from the scope and content of Articles III:4 and XI:1 of the GATT 1994, and compliance with a finding under the latter provisions would not necessarily result in 
compliance with a finding under Article X:1. Japan further requests the Appellate Body to complete 
the legal analysis and find that the TRRs measure is inconsistent with Argentina's obligations under Article X:1 of the GATT 1994. 
2.148.  Japan argues that panels must address all claims on which a finding is necessary in order 
to ensure the effective resolution of disputes. In  particular, panels must not exercise judicial 
economy with respect to provisions whose "scope and content" are different from those under 
which findings are made, because doing so prevents an effective resolution of the dispute.
180 In 
this dispute, the "scope and content" of Articl e X:1, which relates to the administration of 
measures, is different from the "scope and content" of Articles III:4 and XI:1 of the GATT 1994, which relate to the substantive content of measures. It follows for Japan that it was necessary for 
the Panel to have addressed Japan's Article X:1 claim against the TRRs measure.
181 
2.149.  In addition, according to Japan, the use of judicial economy would fail to ensure effective 
resolution of disputes where actions that would result in compliance with one finding would not 
necessarily result in compliance with another finding. Argentina's compliance obligations under 
Article X:1 of the GATT 1994 require Argentina to achieve a greater degree of transparency with 
respect to the measure and, by extension, Argentina's compliance steps. Article X:1 transparency 
obligations are particularly important in the circumstances of this dispute. Japan submits that, 
given the opaque and non-transparent nature of th e current TRRs measure, without its publication, 
it may be unclear to economic operators whether, when, and how the TRRs measure has been fully removed or rectified.
182 
2.150.  Finally, Japan contends that the Appellate Body is able to complete the legal analysis and 
find that the TRRs measure is inconsistent with Article X:1 of the GATT 1994, on the basis of undisputed facts and the Panel's findings. In particular, Japan refers to the Panel's findings that 
the TRRs measure is unwritten, has general application, and constitutes an import restriction on 
goods. 
2.8  Arguments of Argentina – Appellee 
2.8.1  The Panel's exercise of judicial econ omy on Japan's claim under Article X:1 of the 
GATT 1994 
2.151.  Argentina requests the Appellate Body to reject Japan's appeal of the Panel's decision to 
exercise judicial economy with respect to its claim that the alleged TRRs measure is inconsistent 
with Article X:1 of the GATT 1994. Japan fails to explain why the Panel's findings under Article XI:1 
led to a partial resolution of this dispute and fails to demonstrate that the Panel exceeded the bounds of its discretion in exercising judicial econ omy in relation to this claim. Japan appears to 
rely on the Appellate Body's finding in EC – Poultry  that Article X of the GATT 1994 "relates to the 
publication and administration" of measures, rather than to their "substantive content". Yet, Argentina submits that this was precisely the juri sprudence reviewed by the Panel in reaching the 
                                               
180 Japan's other appellant's submission, para . 12 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , para. 405). 
181 Japan's other appellant's submissi on, paras. 4, 9, and 13 (referri ng to Appellate Body Report,  
EC – Poultry , para. 115). 
182 Japan's opening statement at the oral hearing; Japa n's response to questioning at the oral hearing. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  conclusion that additional findings under Article X:1 were neither necessary nor useful to resolve 
the matter at issue.183 
2.152.  Argentina also considers that Japan's reliance on the Appellate Body's findings in  
US – Tuna II (Mexico)  is misplaced because all "laws, regulations, judicial decisions and 
administrative rulings" subject to Article X:1 of the GATT 1994 fall within the scope of "other 
measures" covered by Article XI:1 of the GATT 1994 , and the contents of these provisions overlap 
substantively. Moreover, Japan is incorrect in arguing that a panel will exercise false judicial 
economy whenever the "scope and content" of the relevant legal provisions is not the same. 
Finally, Argentina submits that Japan fails to explain why the Panel's decision to exercise judicial economy amounted to an inconsistency with Articl e 11 of the DSU, and how this claim is distinct 
from Japan's claims under Articles 3.4, 3.7, and 7.2 of the DSU.
184 
2.9  Arguments of the third participants 
2.9.1  Australia 2.153.  Australia supports the Panel's finding that the DJAI procedure is inconsistent with 
Article XI:1 of the GATT 1994. In Australia's view, as the Panel found that Articles VIII and XI of 
the GATT 1994 are not mutually exclusive, the Panel was not required to focus on the factual issue 
of whether the DJAI procedure falls within the sco pe of Article VIII, because it would not exclude 
per se  the applicability of Article XI:1 to the measure at issue. 
2.154.  In addition, Australia disagrees with Argentina's contention that the Panel found that any 
import procedure that is a necessary pre-requisite for importing goods or by which a Member determines the right to import would be outs ide the scope of Article VIII of the GATT 1994. 
Australia submits that the Panel: (i) did not treat the issue of whether the DJAI procedure fell 
within Article VIII as being a determinative issue; (ii) found that the DJAI procedure was not merely an import formality under Article VIII; and (iii) did not make a general statement referring 
to any import procedure, as suggested by Argentina, but rather limited its findings to the DJAI 
procedure. 
2.155.  Finally, Australia disagrees with Argentin a's argument that Article VIII of the GATT 1994 
expressly acknowledges the right of Members or the necessity to maintain import formalities and 
requirements. Although Article VIII:1(c) refers to government imposition of fees and formalities, 
this provision recognizes, for example, the need for minimizing their incidence and complexity. In 
conclusion, Australia disagrees with Argentina's argument that Article VIII can be invoked to 
prevent a measure from being assessed under Article XI of the GATT 1994. 
2.9.2  Canada 2.156.  At the oral hearing, Canada argued th at the DJAI procedure is inconsistent with 
Article XI:1 of the GATT 1994 because it has a limiting effect on imports, due to the broad 
discretion that agencies have to enter and lift observations, as well as the uncertainty created by conditioning the right to import on the fulfilment of unidentified requirements. It is the element of 
discretion that makes the DJAI non-automatic. For Canada, Argentina is incorrect in suggesting 
that the appropriate legal test to determine whether the DJAI procedure is a restriction under Article XI:1 is whether it restricts trade independ ent of, and in addition to, the restriction of the 
underlying measure. This is because, unlike in China – Raw Materials  and Korea – Various 
Measures on Beef , the DJAI procedure is not used to administer quotas; rather, the restriction is 
the DJAI procedure itself. Canada considers that the Panel was correct to analyse the DJAI procedure on its own and conclude that this measure is a discretionary non-automatic restriction 
that does not implement a separate underlying WTO-consistent restrictive measure. 
                                               
183 Argentina's appellee's submission, para. 22 (referring to Panel Reports, para. 6.303, in turn quoting 
Appellate Body Report, EC – Poultry , para. 115). 
184 Argentina's appellee's subm ission, paras. 24-26 (referring  to Appellate Body Report, EC – Fasteners 
(China) , para. 442). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  2.9.3  Korea 
2.157.  At the oral hearing, Korea expressed conc ern over the recent increase in requests for 
preliminary rulings in panel proceedings and, in particular, that such requests may be initiated as a litigation tactic with the purpose of delaying th e proceedings. Clear guidance by the Appellate Body 
on the meaning of the term "measure" – including with respect to unwritten measures – is timely 
and necessary. Korea submitted that the term "mea sure" in the DSU has a scope that is broader 
than particular laws or regulations of a Member and encompasses any conduct by a Member that 
has caused or will cause impairment of another Member's benefits. Article 6.2 of the DSU provides 
a safeguard to prevent complainants from abusing this broad understanding of "measures" when it requires identification of the specific measures at issue and a brief summary of the legal basis sufficient to present the problem clearly. In these disputes, although the TRRs are unwritten, they 
constitute a single overarching measure that falls within the Panel's terms of reference. Finally, 
Korea noted that, given the limited and prospective effects of WTO remedies, "as such" rulings can result in particularly effective remedies where the respondent attempts to adopt revisions of its 
original measures over the course of dispute settlement proceedings. 
2.9.4  Norway 2.158.  At the oral hearing, Norway agreed with the Panel's finding that Article XI:1 of the 
GATT 1994 cannot be read as a priori  excluding import formalities and procedures from its scope, 
as this would read into provisions words that are not there. Rather than assuming that Articles VIII and XI:1 of the GATT 1994 are mutually exclusive,  it should be assumed that they apply in a 
cumulative and harmonious manner. Moreover, Article VIII does not impose any specific 
obligations with respect to measures other than fees and charges, and some penalties; and 
Article VIII:1(c) of the GATT 1994 is of hortatory character. Thus, if Articles VIII and XI:1 were 
considered as mutually exclusive, there would be no WTO discipline for import formalities and 
requirements with a trade-restrictive effect. In a ddition, Argentina's proposed analytical framework 
has no basis in the text of Article XI:1, as this  provision does not distinguish between different 
categories of import and export prohibitions and restrictions, but applies generally to prohibitions 
or restrictions other than duties, taxes, and other charges. Norway also contended that the 
proposed framework does not find support in WTO jurisprudence, because the panel reports relied on by Argentina simply confirm that the challenged measure itself must have trade-restricting effects, and that effects caused by other meas ures, including underlying measures, should not 
necessarily be attributed to such a measure. 
2.9.5  Saudi Arabia 2.159.  Saudi Arabia takes no position either on the merits of the claims by the parties to these 
disputes or on the WTO-consistency of the measures at issue. With respect to the interpretation of 
Article XI of the GATT 1994, Saudi Arabia submits that, in contrast to Articles I and III of the GATT 1994, Article XI does not address discrimination and thus does not contemplate any broader 
legal standard that may relate to protection of "competitive opportunities". Rather, the scope of 
Article XI is limited to those prohibitions and restrictions that have a limiting effect on the quantity of a product being imported or exported. Saudi Arabia argues that the title of Article XI informs its content. Disregarding the express "quantitative" elem ent of Article XI would be contrary to the rule 
that an interpreter may not reduce any part of  a treaty text to redundancy or inutility.
185 
2.160.  Additionally, Saudi Arabia submits that  automatic licensing systems are permitted by 
Article XI:1 of the GATT 1994 because they do not impose any quantitative import or export 
restrictions. Non-automatic licensing systems themselves are not per se  inconsistent with 
Article XI:1. In particular, non-automatic licensing systems are consistent with Article XI so long as they "make effective" permitted restrictions including duties, taxes or other charges and do not 
create limiting effects on import or export quantities that are additional to those caused by the 
imposition of the permissible restriction and beyond what is necessary to administer the underlying measure. Article 3 of the Import Licensing Agreem ent supports the permissibility of non-automatic 
licensing systems under Article XI:1 of the GATT 1994. In Saudi Arabia's view, if non-automatic 
licensing were per se  inconsistent with Article XI of the GATT 1994, there would be no reason to 
                                               
185 Saudi Arabia's third participant's submission, pa ra. 9 (referring to Appellate Body Reports,  
Japan – Alcoholic Beverages II , paras. 11 and 12; and US – Gasoline , para. 23).  WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  establish specific standards for non-automatic import licensing under the Import Licensing 
Agreement. 
2.161.  With respect to the evidentiary burden for unwritten measures, Saudi Arabia submits that 
a complainant must satisfy both the evidentiary and the legal burden of proof with respect to each 
element of each claim regardless of whether the measure is written or unwritten. The evidence 
necessary to demonstrate that a measure is inconsistent with a WTO provision must be sufficient to identify the challenged measure and its basic import, identify the relevant WTO provision and 
obligation contained therein, and explain the basis for the claimed inconsistency of the measure 
with that provision. Saudi Arabia submits that the complexity of a measure, or its combination with other measures, does not diminish the complainant's burden of proof. 
2.9.6  The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
2.162.  The Separate Customs Territory of Taiw an, Penghu, Kinmen and Matsu concurs with the 
Panel's finding that the TRRs identified by the complainants as a measure at issue in their requests for consultations are within the Panel's terms of reference. The descriptions of the TRRs measure 
in the complainants' panel requests are substantially similar to the descriptions of the actions in 
the complainants' requests for consultations because they bear the same "essence" in terms of their purpose, application and effect. Additiona lly, the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu contends that the explicit reference to a specific "overarching" TRRs 
measure in the panel requests would not have  altered Argentina's understanding of the 
complainants' challenges to its import requirements.  
2.163.  Moreover, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu agrees 
with the Panel's finding that Article XI:1 of the GATT 1994 refers to import and export prohibitions 
or restrictions in general. The DJAI procedure, whether characterized as "procedural" or "substantive", still imposes a prohibition and restriction on trade, and cannot a priori  be excluded 
from examination under Article XI:1. Thus, the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu disagrees that Article XI:1 applies only to "substantive" rules of importation. 
2.9.7  Turkey 
2.164.  At the oral hearing, Turkey stated that th ere is no evidence in the Panel Reports indicating 
that the Panel considered the DJAI procedure to fall outside the scope of Article VIII of the GATT 1994. Rather, the Panel underlined that even if  it is assumed that Article VIII applies to the 
DJAI procedure, there is nothing that excludes per se  the applicability of Article XI of the 
GATT 1994. For Turkey, it is natural that every Me mber has the right to adopt some formalities or 
requirements to ensure that certain policy objectives are met, and that every formality and requirement has some level of restrictive effect. However, a systemic restriction on the essence of 
the right to import cannot be considered within this category. It is not incorrect to focus on 
Article XI to examine the trade restrictiveness of measures such as the DJAI procedure. Furthermore, Articles VIII and XI cannot be viewed as mutually exclusive, and the fact that the 
DJAI procedure is "permitted" under Article VIII does not prevent its evaluation under Article XI. 
Finally, Turkey considers that, in the current disputes, the DJAI procedure has restrictive aspects of its own, independent of the TRRs measure. 
3  ISSUES RAISED IN THIS APPEAL 
3.1.  The following issues are raised in this appeal: 
a. with respect to the Panel's terms of reference: 
i. whether the Panel erred in finding that the identification of the single or 
"overarching" trade-related requirements (TRRs) measure in the complainants' panel 
requests did not expand the scope of the dispute or change its essence, and that, consequently, the single or "overarching" TRRs measure was within the Panel's terms 
of reference (raised by Argentina); and 
ii. with respect to DS438 only, whether the Panel erred in finding that the 23 specific 
instances of application of the TRRs identified in section 4.2.4 of the WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  European Union's first written submission were not identified in the EU Panel Request 
as measures at issue and, thus, do not constitute measures at issue in this dispute (raised by the European Union); 
b. with respect to the single TRRs measure: 
i. whether, in addressing the three complainants' "joint claims"
186 against the 
TRRs measure, the Panel applied an incorrect legal standard in assessing whether the TRRs measure exists and, for that reason, erred in finding that the Argentine 
authorities' imposition of TRRs on economic operators as a condition to import or 
receive certain benefits operates as a single measure (the TRRs measure) 
attributable to Argentina (raised by Argentina);  
ii. whether, as a consequence of the above, the Panel erred in finding that the 
TRRs measure is inconsistent with Articles XI:1 and III:4 of the GATT 1994 (raised 
by Argentina);  
iii. with respect to DS445 only, whether, in addressing Japan's "as such" claims against 
the alleged single TRRs measure, the Panel acted inconsistently with Article 11 of the 
DSU in finding that Japan had established the precise content and the general and prospective application of that measure and,  if so, whether, as a consequence, the 
Panel erred in finding that the TRRs measure is inconsistent with Articles XI:1 
and III:4 of the GATT 1994 (raised by Argentina); and 
iv. with respect to DS445 only, whether the Panel erred in exercising judicial economy 
with respect to Japan's claim under Article X:1 of the GATT 1994 (raised by Japan); 
and 
c. with respect to the Advanced Sworn Import Declaration ( Declaración Jurada Anticipada 
de Importación ) (DJAI) procedure: 
i. whether the Panel erred in its interpretation of Article XI:1, as well as of Article VIII, 
of the GATT 1994 and, more specifically, whether the Panel erred: 
 in failing to distinguish between the scope and disciplines of Article VIII of the 
GATT 1994, on the one hand, and Article XI:1 of the GATT 1994, on the other 
hand (raised by Argentina); and 
 in its assessment of the scope of appl ication of Article VIII of the GATT 1994 
(raised by Argentina);  
ii. whether the Panel erred in its application of Article XI:1 of the GATT 1994 to the 
DJAI procedure and, more specifically, in concluding that, because obtaining a DJAI in "exit" status is not "automatic", the DJAI procedure is inconsistent with 
Article XI:1 of the GATT 1994 (raised by Argentina); and 
iii. whether, as a consequence of the above, the Panel erred in finding that the DJAI 
procedure is inconsistent with Article XI:1 of the GATT 1994 (raised by Argentina). 
4  BACKGROUND AND OVERVIEW OF THE MEASURES AT ISSUE 
4.1.  Before turning to the issues of law and legal interpretation raised in this appeal, and without 
prejudice to their merits, we provide an overview of the measures at issue in these disputes, as 
identified in the Panel Reports. We begin with  the trade-related requirements (TRRs) and their 
application and operation as the TRRs measure. Then, we identify how the Panel described the 
                                               
186 See para. 5.97 of these Reports. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  DJAI procedure.187 For a more complete description of the Panel's understanding of the scope and 
content of these measures, reference should be had to the Panel Reports. 
4.1  The trade-related requirements (TRRs) and the TRRs measure 4.2.  In certain instances, economic operators in  Argentina are not allowed to import goods unless 
they achieve either a trade balance or an export  surplus. To achieve these objectives, economic 
operators must commit to undertaking certain ac tions, which the Panel referred to as TRRs.
188 
4.3.  The TRRs are not stipulated in any published law, regulation, or administrative act189; rather, 
they are, in some cases, reflected in agreements  signed between specific economic operators and 
the Argentine Government, and, in other cases, contained in letters addressed by economic operators to the Argentine Government.
190 The Panel requested that the parties provide copies of 
specific agreements and letters identified by the complainants, however, the complainants 
provided the Panel with copies of only a few letters addressed to the Argentine Government by 
economic operators191, as well as a certification by a notary public attesting to having been shown 
four agreements signed between Argentine Government officials and private entities.192 Argentina 
did not dispute the existence of the specific agreements identified by the complainants.193 Rather, 
Argentina responded to the Panel's request by explaining that it was under no obligation to make the case for the complainants and that the agreements were unnecessary for the resolution of the 
disputes.
194 The Panel rejected Argentina's explanation, considering that it was incumbent upon 
Argentina to provide copies of the requested agreements and letters pursuant to Article 13 of the DSU. Moreover, the Panel considered that Argentina was in the best position to provide copies of 
the requested evidence.
195 Thus, the Panel drew inferences from Argentina's refusal to provide 
copies of the agreements and letters in its possession.196 
4.4.  In addition to these inferences, the Panel reached its conclusions as to the existence and 
nature of the TRRs imposed by the Argentine Gove rnment on the basis of extensive evidence on 
                                               
187 The Panel observed that the DJAI procedure has se rved to implement certai n TRRs in some cases. 
(Panel Reports, paras. 6.154, 6.163, and 6.395) Nevertheless, the complainants challenged the DJAI procedure and the TRRs measure as separate measures. (Ibid., pa ra. 6.154 (referring to European Union's response to 
Panel question No. 10; United States' responses to Pa nel questions Nos. 9 and 10; and Japan's response to 
Panel question No. 10)) The European Union, the United States, and Japan originally identified a third measure, the imposition of non-automatic import licences ( Licencias No Automáticas de Importación ) by 
requiring import certificates ( Certificados de Importación ) (CIs)  as a condition for the importation of goods. 
(EU Panel Request, pp. 2-3; US Panel Request, pp. 3-4; Japan Panel Request, pp. 2-3)  However, in their first 
written submissions to the Panel, the complainants indicated that they were no longer pursuing their claims against the CI requirement because, on 25 January 2013,  the Argentine Government had repealed the various 
resolutions containing the CI regime . (European Union's first written submission to the Panel, paras. 15 
and 16; United States' first written submission to the Pane l, fn 6 to para. 7, and para. 17; Japan's first written 
submission to the Panel, fn 34 to para. 15) 
188 Panel Reports, para. 6.255 and fn 253 to para. 6.119. 
189 Panel Reports, para. 6.157. 
190 Panel Reports, paras. 6.119 and 6.156. There is evidence on the record of the existence of at least 
29 agreements signed between the Argentine Governme nt and the following economic operators: (i) the 
Asociación de Fábricas Argentinas Terminales de Electr ónica (Afarte) and the Cámara Argentina de Industrias 
Electrónicas, Electromecánicas y Luminotécnicas  (Cadieel); (ii) General Motors; (iii) AGCO; (iv) Renault Trucks 
Argentina; (v) Claas; (vi) Mercedes Benz; (vii) Volkswagen; (viii) Alfa Romeo; (ix) Porsche; (x) Peugeot-Citroën; (xi) Fiat; (xii) Hyundai; (xiii) Ford; (xiv) KIA; (xv) Nissan; (xvi) Renault; (xvii) Chery; (xviii) Alfacar (Mitsubishi); (xix) Ditecar (Volvo, Jaguar, and Land Rover); (xx) Volvo Trucks; (xxi) Tatsa; (xxii) Indumotora Argentina (Subaru); (xxiii) BMW; (xxi v) Pirelli; (xxv) Thermodyne Vial; (xxvi) supermarkets; 
(xxvii) the Cámara Argentina de Publicaciones; (xxviii) the Cámara Argentina del Libro; and 
(xxix) representatives of the automobile and autoparts industry.  
191 Panel Reports, para. 6.57 (referring to: (i) the le tter from Company X to the Secretary of Domestic 
Trade, 3 April 2012 (Panel Exhibit JE-304); (ii) the e-mail communication from Company X to the Secretary of Domestic Trade, 11 April 2012 (Panel Exhibit JE-305); an d (iii) the letter from the Argentine meat and pork 
industry to the Secretary of Domestic Trade, 7 May 2012 (Panel Exhibits JE-441 and EU-127)). See also fn 344 
to para. 6.164. 
192 Panel Reports, para. 6.57 (referring to Brechbul  & Rodriguez Notaires, Notarial certification, 
13 June 2013 (Panel Exhibits JE-328 and EU-14)). 
193 Panel Reports, para. 6.164 (referring to Argentina's responses to Panel questions Nos. 63-92, 
para. 20). 
194 Panel Reports, para. 6.48. 
195 Panel Reports, paras. 6.58 and 6.59. 
196 Panel Reports, paras. 6.155 and 6.165. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  the record.197 This evidence includes copies of domestic laws, regulations, and policy documents; 
communications addressed to Argentine officials by private companies; statements by Argentine officials and notes posted on government websites; articles in newspapers and magazines, published mostly in Argentina; statements by company officials; and data from industry 
surveys.
198  
4.5.  The Panel found that the evidence on the re cord demonstrates the existence of the following 
five types of actions that the Argentine Governme nt requires of economic operators (individual 
TRRs): (i) to export goods from Argentina of a value equivalent to or greater than the value of the 
operator's imports (one-to-one requirement); (ii) to limit the volume of imports and/or reduce 
their price (import reduction requirement); (iii) to incorporate a minimum level of local content into goods produced in Argentina (local content requirement); (iv) to make or increase 
investments in Argentina, including in production facilities (investment requirement); and/or (v) to 
refrain from repatriating funds from Argentina to another country (non-repatriation requirement).
199  
4.6.  First, under the one-to-one requirement, as a condition to import, the Argentine Government 
requires economic operators to compensate imports annually with exports of at least the same value. There are three main ways for an economic operator to increase its exports to comply with 
this requirement: (i) to use an exporter as an intermediary to sell products to a buyer in a third 
country (exportation " por cuenta y orden "); (ii) to export directly Argentine products that the 
economic operator (or any other company) produces; or (iii) to conclude an agreement with an exporter so that the exporter's transactions may be considered as the economic operator's own 
transactions.
200 In this context, the Panel referred to ev idence showing that, to comply with the 
requirement to export, companies have engaged in activities unrelated to their respective business activities.
201 For example, the Panel referred to an agreement reached between the 
Argentine Government and the automobile manufacturer Hyundai in which the latter reportedly 
committed to exporting peanuts, wine, biodiesel, an d soy flour from Argentina, valued collectively 
at more than US$157 million.202 
4.7.  Second, under the import reduction requirement, economic operators are required to limit 
their imports, either in volume or in value. This requirement is often imposed in combination with other TRRs, such as the one-to-one requirement or the local content requirement.
203 In certain 
instances, compliance with these commitments constitutes a condition for operators to import 
goods into Argentina.204 Supermarket chains, automobile and motorcycle producers and importers, 
producers of pork products, and producers of el ectronic and office equipment have all committed 
to restricting their imports into Argentina.205 For example, the Panel referred to evidence showing 
that, in December 2013, electronic and office  equipment producers reportedly signed an 
agreement with the Argentine Government to reduce their imports in the first quarter of 2014 by 20% as compared to the previous year.
206 
4.8.  Third, under the local content requirement, the Argentine Government requires certain 
economic operators to reach a higher level of local content in their products by substituting 
                                               
197 Panel Reports, paras. 6.155 and 6.165. 
198 Panel Reports, paras. 6.64, 6.165, and 6.223. 
199 Panel Reports, para. 6.221. 
200 Panel Reports, para. 6.167. Typically, the Argentine Government gives economic operators a 
specified period, such as one year, to achieve a tr ade balance through compliance with the one-to-one 
requirement. If the economic operator does not achiev e the required level of exports within the specified 
period, it can either limit its imports or, alternatively, ma ke an irrevocable investment in the local operations of 
the firm, in the form of a contribution to its capital, to  compensate for the value of imports. (Ibid., para. 6.172) 
201 Panel Reports, para. 6.262. For instance, companies from the motorcycle sector exported grape juice 
and wine; tyre producers exported honey; an d clothing brands exported wool. (Ibid.) 
202 See Panel Reports, fn 357 to para. 6.169 (referring to News item: Prensa Argentina , "Car producer 
Hyundai agrees to offset its trade balance", 13 June 2011 (Panel Exhibit JE-86)). In this agreement, Hyundai 
also reportedly made an irrevocable capital contribution of US$8 million to the local operations of the firm, to 
facilitate the export of biodiesel. (Ibid.) 
203 Panel Reports, para. 6.186. 
204 Panel Reports, para. 6.195. 
205 Panel Reports, para. 6.187. 
206 Panel Reports, para. 6.194 (referring to News item: Prensa Argentina , "Giorgi agreed with electronic 
and automotive industries to reduce foreign currency for exports by 20%", 11 December 2013 (Panel Exhibit JE-827)). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  imports with products that are produced or could be produced in Argentina.207 The Panel referred 
to evidence on the record showing that th e Argentine Government has presented import 
substitution as a State policy that it is systematically implementing in order to reindustrialize the country. The Argentine Government has implemen ted this policy of import substitution by 
requiring importers to engage in import substitution plans and by granting tax incentives and soft 
loans to economic operators that achieve a certain level of local content.
208 For example, the Panel 
referred to evidence reporting that, since February 2011, the Argentine Government has asked 
producers of agricultural machinery to increase their local production and to submit import 
substitution plans to incorporate more domestically produced agro-parts into their final products. In undertaking these import substitution plans, producers of agricultural machinery have become eligible for soft loans granted, for example, by the Banco Nación.
209 
4.9.  Fourth, under the investment requirement, the Argentine Government requires certain 
companies to make or increase investments in Argentina as a condition to import.210 The 
investment requirement is typically imposed in combination with either the one-to-one 
requirement or the local content requiremen t, and not as a stand-alone requirement.211 When 
used in combination with the one-to-one requirement, the Argentine Government requires economic operators to undertake investments in the form of irrevocable capital contributions when 
their level of imports exceeds that of their exports.
212 When used in combination with the local 
content requirement, the Argentine Government requires certain economic operators to undertake investments to commence manufacturing processes in Argentina, or to increase or improve manufacturing capacity.
213 For instance, the Panel referred to evidence on the record reporting 
that the automobile manufacturer Renault committed to make a capital contribution to its plant in 
Córdoba to enable production of a new model of automobile destined primarily for export.214 
4.10.  Finally, under the non-repatriation requirement, the Argentine Government has requested 
companies to refrain from transferring profits abroad.215 According to the Panel, while there was 
no evidence on the record to suggest that the non-repatriation requirement is imposed by the Argentine Government in and of itself as a condition to import, there was evidence to suggest that 
a commitment to refrain from repatriating profits has been imposed in conjunction with either the 
one-to-one requirement or the local content requirement.
216 These combinations are found in 
agreements between the Argentine Government and several truck manufacturers, car 
                                               
207 Panel Reports, para. 6.196. 
208 Panel Reports, para. 6.279 (referring to Ministry of Industry of Argentina, Argentina's Industrial 
Strategic Plan 2020 ( Plan Estratégico Industrial 2020 ), 4 October 2011 (Panel Exhibits ARG-51 and JE-749) 
(PEI 2020), p. 33; Argentina's responses to Panel questions Nos. 57 and 58; News item: Prensa Argentina , 
"Agricultural machinery manufactured in the country must have 40-50% of national parts", 23 May 2013 (Panel Exhibits JE–550 and EU-236); and Office of the Pres ident, "Inauguration of a new plant of Fiat Argentina 
in Córdoba: Speech by the President of Argentina", 4 June 2013 (Panel Exhibits JE-794 and EU-444)). The 
Argentine Government has referred to its policy of im port substitution in speeches made by high-level 
Argentine officials, including the President of Argentina, as well as in Argentina's PEI 2020. (Ibid., para. 6.197) According to the President, the final objective of the Go vernment is to substitute domestically around 45% of 
imports. (Ibid., para. 6.197 (referring to Office of the Pr esident, Presentation of th e Strategic Industrial Plan 
2020, Speech by the President, 4 October 2011 (Panel Exhibits JE-517 and EU-203); and PEI 2020, p. 38)) 
209 Panel Reports, para. 6.202. For agricultural machinery, the goal was to achieve integration of local 
content of 55-60% in 2013. (Ibid.) 
210 Panel Reports, para. 6.208. 
211 Panel Reports, paras. 6.208 and 6.259. 
212 Panel Reports, para. 6.209 (referring to News items: Página12 , "On the way to reinvest profits", 
18 November 2011 (Panel Exhibits JE-620 and EU-306); Prensa Argentina , "An automobile company may 
compensate by exporting", 25 March 2011 (Panel Exhibits JE-1, JE-398, and EU-84); and Prensa Argentina , 
"Car manufacturer KIA also pledged to even out its trade balance", 15 June 2011 (Panel Exhibit JE-87)). 
213 Panel Reports, para. 6.209 (referring to News item s: Ministry of Industry, "Argentina substituted 
imports amounting to US$4 billion in the first semester of the year", 23 August 2011 (Panel Exhibit JE-252); Prensa Argentina , "Car producer Hyundai agrees to offset it s trade balance", 13 June 2011 (Panel Exhibit 
JE-86); Prensa Argentina , "Fiat: Another automaker agrees to ensure trade balance", 5 May 2011 (Panel 
Exhibits JE-88, JE-528, and EU-214); and Office of th e President, Announcement of New Investments in GM: 
Speech by the President, 15 November 2011 (Panel Exhibit JE-244)). 
214 See Panel Reports, fn 481 to para. 6.210 (referring to News item: Prensa Argentina , "Renault, 
Mitsubishi, Nissan, and Volvo also signed a plan to achieve a trade surplus in 2012", 5 August 2011 (Panel 
Exhibit JE-90)). Renault undertook to make a capital contribution of US$175 million, and by way of its capital contribution and the production of the new model of au tomobile, Renault pledged to achieve a trade surplus of 
US$231 million by 2012. (Ibid.) 
215 Panel Reports, paras. 6.214 and 6.215. 
216 Panel Reports, paras. 6.214 and 6.259. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  manufacturers, agricultural machinery manufacturers, and mining companies.217 For instance, the 
Panel referred to evidence of an agreement be tween the agricultural machinery manufacturer 
Claas and the Argentine Government in which the former pledged not to transfer profits abroad between 2011 and 2014.
218 This commitment was reportedly made together with commitments to 
invest US$60 million to expand two of its manufacturing plants, to increase local content in 
combine harvester models to 55% by 2013, and to increase production of harvesters to 800 units by 2015, of which 600 would be exported.
219 
4.11.  The Argentine Government informs economic operators individually of the trade-related 
commitment or commitments they should undertake, depending upon the specific circumstances of each operator.
220 Moreover, the Argentine Government has stated that it monitors the 
implementation of the commitments undertaken by economic operators.221 
4.12.  Before the Panel, the complainants explained that they did not seek separate 
determinations with regard to each TRR because, in their view, "there is only one measure at issue".
222 The complainants affirmed that the TRRs measure: (i) consists of "a combination of one 
or more of the five identified [TRRs]"; (ii) is an unwritten measure "not stipulated in any published 
law or regulation"; (iii) is "imposed on economic operators in Argentina as a condition to import or to obtain certain benefits"; (iv) is "enforced, inter alia , through the DJAI requirement"; and (v) is 
"imposed by the Argentine Government with the objective of eliminating trade deficits and 
increasing import substitution".
223 The complainants also affirm ed that, to meet these TRRs, 
"economic operators normally either submit a statement or conclude an agreement with Argentina setting out the actions they will take."
224 
4.13.  The Panel determined that, since at least 2009, the Argentine Government has required a 
variety of importers and other economic operators, irrespective of size or domicile225, to undertake 
one or more of the five TRRs as a condition to import goods or to obtain certain benefits.226 The 
five TRRs operate in combination with one another, as part of the TRRs measure, such that more 
than one TRR often has been imposed at a gi ven time on a specific economic operator.227 Because 
the TRRs measure is unwritten, and the combination of requirements imposed by Argentina varies 
amongst economic operators without regard to any known criteria, there is no certainty as to: 
(i) which TRRs will be imposed; (ii) when an economic operator will be required to comply with them; or (iii) whether the TRRs will be imposed as a temporary or permanent measure.
228 The 
combination of requirements imposed on individual economic operators at a given time "seems to 
depend on the features of the operator and on  the contribution of the requirement to the 
attainment of Argentina's policy of … substituti ng imports and reducing or eliminating trade 
deficits".229  
4.14.  High-ranking Argentine Government officials have announced in public statements and 
speeches a policy of "managed trade" ( comercio administrado ) with the objectives of, inter alia , 
substituting imports for domestically produced goods and reducing or eliminating trade deficits.230 
According to the Panel, the TRRs constitute different elements that contribute in different 
combinations and degrees toward the realization of the objectives that guide the "managed trade" policy.
231 The TRRs have been applied to a wide range of economic sectors232, such as foodstuffs, 
                                               
217 Panel Reports, para. 6.214. 
218 See Panel Reports, fn 504 to para. 6.214 (referring to News item: Prensa Argentina , "Three 
metallurgical companies committed investments and will not transfer profits", 28 December 2011 (Panel Exhibit JE-209)). 
219 Ibid. 
220 Panel Reports, para. 6.157. 
221 Panel Reports, para. 6.160. 
222 Panel Reports, para. 6.224. (fn omitted) 
223 Panel Reports, para. 6.125. (fns omitted) 
224 Panel Reports, para. 6.125. (fn omitted) 
225 Panel Reports, para. 6.159. See also para. 6.335. 
226 Panel Reports, paras. 6.155 and 6.221. 
227 Panel Reports, paras. 6.225 and 6.231. 
228 Panel Reports, para. 6.260. 
229 Panel Reports, para. 6.225. The Panel referred to statements made by Argentine officials that 
confirm that TRRs are imposed according to the particular  situation of economic operators. (Ibid., para. 6.226) 
230 Panel Reports, para. 6.119. 
231 Panel Reports, paras. 6.119 and 6.228. 
232 Panel Reports, para. 6.340. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  automobiles, motorcycles, mining equipment, electronic and office products, agricultural 
machinery, medicines, publications, and clothing.233 In the Panel's view, Argentina's imposition of 
the TRRs measure constitutes repeated actions, coordinated by the highest authorities of the 
Argentine Government, including the President, the Minister of Industry, and the Secretary of 
Trade.234 These authorities have announced this policy in public statements and speeches, as well 
as on government websites235, which suggest that the TRRs will continue to be imposed until the 
"managed trade" policy is repealed or modified.236  
4.2  Advanced Sworn Import Declaration (DJAI) procedure 
4.15.  We turn now to the Panel's identification of the second measure at issue in these disputes: 
the Advanced Sworn Import Declaration ( Declaración Jurada Anticipada de Importación ) (DJAI) 
procedure. Argentina's Federal Public Revenue Administration ( Administración Federal de Ingresos 
Públicos ) (AFIP) implemented the DJAI procedure by means of AFIP General 
Resolution 3252/2012237, which entered into force on 1 February 2012.238 The DJAI procedure 
requires almost all prospective importers of goods into Argentina to file a DJAI prior to 
importation.239 As part of the DJAI, importers are required to submit specific information.240 If the 
Argentine Government finds the information to be satisfactory, the DJAI may be approved.241 In 
certain instances, however, agencies of the Argentine Government may require prospective 
importers to provide additional information and/ or to undertake export commitments or other 
                                               
233 Panel Reports, para. 6.158. These sectors correspond to at least six of the 11 industrial sectors 
addressed in the PEI 2020, which was published in 2011.  The 11 industrial sectors are: (i) foodstuffs; 
(ii) automobile and autoparts; (iii) ca pital goods; (iv) leather, shoes, and other leather goods; (v) agricultural 
machinery; (vi) construction material; (vii) medicines; (v iii) forestry industry; (ix) chemical and petrochemical; 
(x) software; and (xi) textiles. (Ibid., fn 333 to pa ra. 6.158 (referring to PEI 2020, pp. 42-43)) The PEI 2020 
sets out the economic objectives, or "macroeconomic guidelines", to be achieved in Argentina's "managed trade" policy. (Ibid., paras. 6.161 and 6.162) The TRRs imposed by the Argentine Government appear to align with three of the five economic objectives set out in the PEI 2020: (i) protection of the domestic market and import substitution; (ii) increased exports; and (iii) promotion of productive investment. (Ibid., para. 6.161 
(referring to PEI 2020, pp. 33-35)) 
234 Panel Reports, para. 6.340. 
235 Panel Reports, paras. 6.230 and 6.340. 
236 Panel Reports, paras. 6.230 and 6.341. The Panel referred to a statement by the Argentine Secretary 
of Domestic Trade in late 2013 that the policy of "managed trade" would continue to be applied in the future as per the instructions of the President of Argentina. (Ibid., paras. 6.162, 6.230, and 6.341 (referring to News item: Prensa Argentina , "Moreno confirmed that policy of trade admi nistration will continue as per presidential 
instructions", 3 November 2013 (Panel Exhibit JE-759))) 
237 Panel Reports, para. 6.365 (referring to AFIP  General Resolution 3252/2012, 5 January 2012 (Panel 
Exhibits JE-15 and ARG-6)). 
238 Panel Reports, para. 6.365 (referring to Article 9 of AFIP General Resolution 3252/2012, 
5 January 2012 (Panel Exhibits JE-15 and ARG-6)). On 5 January 2012, the AFIP implemented the DJAI 
procedure. (Ibid. (referring to Article 1 of AFIP General Resolution 3252/2012, 5 January 2012 (Panel Exhibits JE-15 and ARG-6))) 
239 Panel Reports, para. 6.364. The DJAI must be filed before the importation takes place and prior to 
the issuance of purchase orders or similar documents. (Ibid., paras. 6.364 and 6.368 (referring to Article 2 of AFIP General Resolution 3252/2012, 5 January 2012 (Panel  Exhibits JE-15 and ARG-6); and Article 91(1), 
Law 22,415, Customs Code, 2 March 1981 (Panel Exhibit ARG-3))) Importers are not required to file a DJAI in the following cases: (i) imports under the re-importation regime; (ii) importation or exportation to compensate 
for deficient merchandise; (i ii) donations; (iv) samples; (v) diplomatic exemptions; (vi) merchandise with duty 
and tax exemptions; (vii) postal shipments; (viii) courier shipments; and (ix) imports by the Secretary General of the Presidency. (Ibid., fn 721 to para. 6.364) 
240 Panel Reports, para. 6.364 (referring to Article 2 of AFIP General Resolution 3252/2012, 
5 January 2012 (Panel Exhibits JE-15 and ARG-6 ); and Article 91(1), Law 22,415, Customs Code, 
2 March 1981 (Panel Exhibit ARG-3)). 
241 See Panel Reports, para. 6.407. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  commitments relating to the TRRs as a condition for obtaining approval of the DJAI.242 Importation 
into Argentina of goods covered by a DJAI is not authorized until the DJAI is approved.243  
4.16.  The Panel's understanding of the DJAI procedure is set out in more detail below. The Panel 
inferred certain features of the DJAI procedure fr om the manner in which the measure operates in 
practice, and noted that not all such details are spelled out in the relevant laws and regulations.244 
4.17.  To initiate the DJAI procedure, a declarant must file a DJAI through AFIP's electronic portal, 
known as the MARIA information system ( Sistema Informático MARIA ) (SIM), or the SIM system. 
To be processed, the DJAI must contain the following information: (i) name and taxpayer 
identification code of the importer or customs broker, where applicable; (ii) customs office of registration; (iii) quantity, codes, capacity, and type  of containers; (iv) total and per-item "free on 
board" (f.o.b.) value, and corresponding currency; (v ) tariff classification; (vi) type and quantity of 
marketing units; (vii) condition of the merchandise; (viii) country of origin; (ix) approximate 
shipping and arrival dates; and (x) name of the declarant.
245 Once the DJAI has been formally 
entered into the SIM system, it attains "registered" ( oficializada ) status.246 The DJAI may then 
pass through several of the following statuses ( estados ): (i) "observed" ( observada ); (ii) "exit" 
(salida ); (iii) "cancelled" ( cancelada ); and (iv) "voided" ( anulada ).247 
4.18.  In principle, as from the date that the DJAI attains "registered" status, the importer has 
180 days to complete the DJAI procedure succ essfully and import authorized goods into 
Argentina.248 Once a DJAI is registered, the AFIP and a number of government agencies that have 
signed accession agreements with the AFIP249 may review the information entered into the 
SIM system and enter "observations" on that specific DJAI.250 The DJAI procedure does not permit 
importers to know which agency may review and enter observations on a DJAI.251 Four agencies 
currently participate in the DJAI procedure.252 A participating agency may enter an observation 
when it considers that the information provided by the prospective importer is "insufficient, faulty, 
or incomplete" to demonstrate compliance with the requirements under the domestic legislation 
that the agency administers, although no legal instruments contain the specific criteria that the relevant agency may apply in order to enter observations.
253 A participating agency has 72 hours 
after the registration of a DJAI to enter an obse rvation, unless otherwise provided in its accession 
                                               
242 Panel Reports, paras. 6.163, 6.382, and 6.395. 
243 To import goods into Argentina, an importer must attain a DJAI in "exit" status. (Panel Reports, 
paras. 6.364 and 6.407) As explained below, a DJAI attains "exit" status if: (i) no government agency requests that an importer provide supplement ary information and/or undertake a trade-related commitment within the 
specified time period; or (ii) in the event that a go vernment agency makes such a request, the importer 
provides the requested information an d/or undertakes the trade-related commitment. (See ibid., paras. 6.382, 
6.395, and 6.407) Once a DJAI attains "exit" status, it can be converted automatically into a customs clearance 
procedure, and the goods covered by the DJAI may clear customs. (Ibid., para. 6.408) For additional details in 
this regard, see paras. 4.19-4.21 of these Reports. 
244 Panel Reports, para. 6.367. 
245 Panel Reports, para. 6.368. A declarant may provid e additional information concerning the means of 
transport, the identity of the seller, the value of freight and insurance, and any adjustments to be included or deducted from the customs value. (Ibid., para. 6.369) 
246 Panel Reports, para. 6.372. 
247 Panel Reports, para. 6.370. 
248 Panel Reports, para. 6.372 (referring to Argentina's response to Panel question No. 119). 
249 The accession agreements signed between the AFIP and the participating agencies have not been 
published or otherwise made availabl e to traders. The model accession agreement set out by AFIP General 
Resolution 3256/2012 does not specify the scope of the operations that can be reviewed and observed by the relevant agency, the additional information that the ag ency may request from import ers, or the timeframe for 
the acceding agency to enter observations on a DJAI  application. (Panel Reports, paras. 6.373 and 6.382) 
250 Panel Reports, para. 6.373. 
251 Panel Reports, para. 6.377. 
252 The following agencies participate in the DJAI procedure: (i) the Federal Public Revenue 
Administration (AFIP); (ii) the Secretariat of Domestic Trade ( Secretaría de Comercio Interior ) (SCI); (iii) the 
National Drugs, Food, and Medica l Technology Administration ( Administración Nacional de Medicamentos, 
Alimentos, y Tecnología Médica ) (ANMAT); and (iv) and the Planning Se cretariat for the Prevention of Drug 
Addiction and the Fight Against Drug Trafficking ( Secretaría de Programación para la Prevención de la 
Drogadicción y la Lucha contra el Narcotráfico ) (SEDRONAR). (Panel Reports, para. 6.374) 
253 Panel Reports, para. 6.379. (fn omitted) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  agreement or by statute.254 In the case of observations made by the AFIP's Directorate-General of 
Revenue, the reason for an observation is communi cated through the SIM system. In the case of 
observations made by other agencies, the precise reason for an observation and the additional documents or information required to lift the observation are not communicated through the SIM 
system.
255 
4.19.  If a government agency enters an observation, the DJAI will move to "observed" status. 
Goods covered by a DJAI in "observed" status cannot be imported into Argentina.256 If a DJAI 
moves to "observed" status, prospective importers must: (i) identify the agency that entered the 
observation; (ii) contact such agency in order to  be informed of the supplementary documents or 
information that must be provided; and ( iii) provide the supplementary documents or 
information.257 A single DJAI may be "observed" by any of the participating agencies, and where 
multiple agencies enter observations, the importer must consult with each agency separately. 
A DJAI will leave "observed" status, and proceed to  "exit" status, only after all observations have 
been lifted by the relevant agency or agencies.258  
4.20.  Of the four agencies that currently participate in the DJAI procedure, the Secretariat of 
Domestic Trade ( Secretaría de Comercio Interior ) (SCI) is of particular relevance to these 
disputes.259 According to the preamble of SCI Resolution 1/2012, it is "necessary" for the SCI to 
have access to the information provided in the DJAI procedure "[to perform] analyses aimed at 
preventing negative effects on the domestic market, since the qualitative and/or quantitative importance of imports to be made has the effect of impacting domestic trade".
260 To this extent, 
the SCI is entitled to enter observations relating to  the importation of any type of product to verify 
a priori  whether the importer or declarant has complied with specified Argentine laws.261 Moreover, 
the SCI has 15 working days following regist ration of the DJAI to enter observations.262 The 
SCI "systematically"263 imposes on importers requirements that are neither set out in any laws nor 
                                               
254 The 72-hour period may be extended up to ten cale ndar days where the specific jurisdiction of the 
implementing agency justifies it. (Panel Reports, para. 6.381 (referring to Article 2 of AFIP General 
Resolution 3255/2012, 20 January 2012 (Panel Exhibits JE-16 and ARG-7))) As explained below, longer periods are accorded to the Secretariat of Domestic Trade. 
255 Panel Reports, para. 6.383. Before the Panel, Argentina stated that "[o]nce the importer/customs 
broker contacts the agency, he is informed of the reasons for the observation and given details of the 
supplementary information needed to conduct the risk assessment". (Ibid., fn 777 to para. 6.383; Argentina's response to Panel question No. 22 (emphasis omitted)) 
256 Panel Reports, para. 6.382. 
257 Panel Reports, para. 6.382. 
258 Panel Reports, para. 6.380. 
259 While the SCI has not signed an accession agreement with the AFIP, the SCI participates in the 
DJAI procedure on the basis of SCI Resolution 1/2012,  which predates AFIP General Resolution 3256/2012. 
(Panel Reports, para. 6.375) By Decree 2136/2013 of 12 December 2013, the SCI has been replaced by the Secretariat of Trade ( Secretaría de Comercio ). The competence to intervene in  the DJAI procedure previously 
held by the SCI is now exercised by the Secretariat of Tr ade. (Ibid., fn 791 to heading 6.3.2.4.3 (referring to 
Argentina's response to Panel questions after the second Panel meeting, 14 January 2014)) 
260 Panel Reports, para. 6.389 (quoting third recital at preamble, SCI Resolution 1/2012, 
11 January 2012 (Panel Exhibits JE-41 and ARG-15)). Th ese negative effects include "breaches of the law 
governing domestic trade", for which the SCI is the implementing authority. (Ibid., para. 6.391) 
261 Panel Reports, paras. 6.390 and 6.391 (referring to Article 2 of SCI Resolution 1/2012, 
11 January 2012 (Panel Exhibits JE-41 and ARG-15); Argent ina's response to Panel question No. 23 (including 
Annex 4); and Argentina's response to Panel question  No. 3.4 posed orally at the first Panel meeting). 
262 Panel Reports, para. 6.381 (referring to Article 2 of SCI Resolution 1/2012, 11 January 2012 (Panel 
Exhibits JE-41 and ARG-15)). 
263 The Panel referred to evidence on the record to this effect, including: (i) reports prepared by market 
intelligence entities or by an export promotion office to inform their clients or affiliated members of the information and requirements imposed by the SCI; (ii) letters of companies addressed to the SCI; 
(iii) company reports; (iv) press articles; (v) interviews  and public statements by the Secretary of Domestic 
Trade; (vi) news items; (vii) a debate; (viii) informatio n notes; (ix) industry newsle tters; (x) slides from the 
Argentine Chamber of Commerce; (xi) a newspaper article; (xii) a market st udy; (xiii) reports, one of which 
was issued by the Argentine Chamber of Commerce; and (xiv) a letter and an e-mail communication from 
Company X to the Secretary of Domestic Trade. (Panel Reports, fn 803 to para. 6.393 and fn 806 to para. 6.395) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  indicated in official publications explaining the operation of the DJAI procedure.264 As a condition to 
lift observations on DJAIs, in certain instances, the SCI has also required prospective importers to increase exports, to begin exporting, or to commit to other TRRs
265 so as to achieve a trade 
balance.266 
4.21.  A DJAI will proceed to "exit" status if no government agency enters an observation within 
the prescribed time period, or if all observations made by agencies are lifted within 180 calendar days from registration.
267 A DJAI in "exit" status can be converted automatically into a customs 
clearance procedure.268 To initiate the customs clearance procedure, an importer must re-access 
the SIM system and formally request the importatio n of goods. The DJAI will proceed to "voided" 
status if an importer withdraws its DJAI, an observation is not lifted, or a DJAI in "exit" status is not used either within 180 calendar days from registration or after the extension period.
269 Once 
the DJAI has been used – i.e. the goods have cleared customs – the DJAI will enter into 
"cancelled" status.270 
4.22.  The Panel made no specific findings regarding the extent to which private companies in 
Argentina are subject to observations and affected by TRRs in the DJAI procedure.271 The Panel did 
note, however, that some prospective importers have successfully challenged the entry of observations by the SCI in certain DJAI  procedures before Argentine courts.
272 
                                               
264 Panel Reports, para. 6.393. Such requirements include, but are not limited to, providing the 
following: (i) a formal letter addressed to the Secretar y of Domestic Trade, bearing the company's letterhead 
and signed by the highest authority of the company or  a legal representative, and reporting the company's 
estimates of total imports and exports, in US dollars, for the ongoing year; (ii) a price list of all goods traded in 
the domestic market (not only of th ose to be imported), which shall be provided in hard copy and CD; and 
(iii) a spread sheet (also called "request note" or nota de pedido ) containing the following data per item: 
(a) description of the product; (b) quantity; (c) unit of measure; (d) price per unit; (e) total price; (f) origin; (g) tariff classification; (h) expected date of shipping from exporting country ; and (i) expected date of arrival 
in Argentina. (Ibid.) The complainants  submitted documents prepared by mark et intelligence entities or by an 
export promotion office informing cl ients or affiliated members of the information and requ irements imposed 
by the SCI whenever this agency enters observations on DJAIs. (Ibid., para. 6.104) 
265 Panel Reports, para. 6.163. 
266 Panel Reports, para. 6.395. The evidence cited by the Panel in support of this statement is listed in 
fn 806 to para. 6.395 of the Panel Reports, as well as fn 263 of these Reports. 
267 See Panel Reports, para. 6.407. This 180-day period may be extended for an additional 180 calendar 
days. (Ibid.) 
268 Panel Reports, para. 6.408. To clear customs, an importer must provide, inter alia , the clearance 
declaration (confirming the data pr ovided through the DJAI). (Ibid.) 
269 Panel Reports, para. 6.410. 
270 Panel Reports, para. 6.411. 
271 Before the Panel, the complainants produced data from surveys to serve as evidence of the extent to 
which private companies in Argentina are subjected to the TRRs and observations in the DJAI procedure. 
(Panel Reports, paras. 6.93) For example, the Europe an Union referred to a survey, dated August 2012 and 
commissioned by the American Cham ber of Commerce in Argentina (AmCham Argentina). The European Union 
argued that this survey showed that 44% of co mpanies subject to SCI observations had presented 
commitments of "compensation" to the Argentin e Government. (Ibid., pa ra. 6.94 (referring to 
European Union's first written submis sion to the Panel, para. 63)) For its part, Japan referred to a survey, 
dated March 2012, and also commissioned by AmCham Argentina, of "more than 100 companies members of AmCham Argentina" in different manufa cturing sectors. In Japan's view, this survey confirms that DJAIs are 
regularly not approved: only 42.8% of DJAIs transitioned to "exit" or "cancelled" status. (Ibid., paras. 6.93 
and 6.95 (referring to Japan's first wr itten submission to the Panel, para. 30)) The Panel noted, however, that 
the data from these surveys "are not, and do not purp ort to be, scientific" and were not used to try to 
demonstrate that a certain percentage of  firms in Argentina are affected by TR Rs or by delays or rejections of 
their DJAIs. The Panel considered that the surveys "serve  as background information illustrating the impact of 
the DJAI requirement and the alleged TRRs on specific companies", but th at they have "limited value" for 
reaching general conclusions about th e operation of the measure. (Ibid.) 
272 Prospective importers have challenged, in Argentine courts, DJAI procedures in which observations 
made by the SCI impeded import operations. The domestic courts concluded that the challenged 
DJAI procedures had: (i) unreasonably delayed the approval  of DJAIs beyond the time-limits in the legislation; 
(ii) made it impossible for applican ts to move the procedure forward in asmuch as observations are neither 
produced in hard copy nor communicat ed through the website portal; and (iii) affected the applicants' right of 
defence inasmuch as the circumstances give rise to a prohibition on the im port operation, without valid legal 
grounds. (Panel Reports, para. 6.384) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5  ANALYSIS OF THE APPELLATE BODY 
5.1  The Panel's terms of reference 5.1.1  Argentina's appeal 5.1.   Argentina appeals the Panel's ruling that  the single or "overarching" TRRs measure fell 
within the Panel's terms of reference. Argentina claims that, in so ruling, the Panel acted 
inconsistently with Articles 6.2 and 7.1 of the DSU. According to Argentina, the complainants' 
requests for consultations did not identify a single or "overarching" TRRs measure.
273 Therefore, 
the addition of a single TRRs measure as a measure at issue in their panel requests expanded the 
scope of the dispute or changed its essence.274 Thus, Argentina requests us to reverse the Panel's 
conclusion, in paragraph 4.1.b of its First Prel iminary Ruling, and in paragraph 7.1.b of the 
EU Panel Report, paragraph 7.5.b of the US Pane l Report, and paragraph 7.9.b of the Japan Panel 
Report, that the characterization of the TRRs measure as a single measure in the complainants' 
panel requests did not expand the scope or change the essence of the dispute, and was, therefore, 
within the Panel's terms of reference.275 
5.1.1.1  Background 
5.2.  In its first written submission to the Panel, Argentina requested a preliminary ruling on the 
following issues: (i) whether the TRRs were identified by the complainants as measures at issue in 
their requests for consultations; (ii) whether the reference to the alleged TRRs as a broad 
unwritten "overarching" measure in the complainants' panel requests "expanded the scope" or "changed the essence" of the dispute; and (iii) wh ether the complainants identified, either in their 
requests for consultations or in their panel requests, the measures subject to their claims against 
the alleged TRRs "as applied".
276 
5.3.  The Panel issued two preliminary rulings.277 In its First Preliminary Ruling, the Panel ruled 
that: (i) the complainants' requests for consultations identified the TRRs as measures at issue; 
therefore, the inclusion of the TRRs in their panel requests was not inappropriate and these 
measures fell within the Panel's terms of reference; and (ii) the characterization of the TRRs as a single "overarching" measure in the complainants' panel requests did not expand the scope or 
change the essence of the dispute.
278 The Panel did not consider it necessary or appropriate to 
issue a ruling with respect to whether the complainants' "as applied" claims were outside its terms of reference at that time, and instead decided to  address this issue during the course of the 
proceedings.
279 
5.4.  During the first Panel meeting, Argentina expressed regret at what it considered to be the 
Panel's "hasty decision" in the First Preliminary Ruling, and concern over the Panel's decision to defer a ruling on some of the jurisdictional objections.
280 Argentina requested the Panel to resolve 
the outstanding issues concerning the Panel's terms of reference.281 The Panel subsequently issued 
its Second Preliminary Ruling, in which it ruled that: (i) the complainants' panel requests properly identified the TRRs as measures at issue, and that  the TRRs, therefore, formed part of the Panel's 
terms of reference; and (ii) the 23 measures described by the European Union in section 4.2.4 of 
its first written submission to the Panel as "specific instances" of application of the TRRs do not constitute "measures at issue".
282 With respect to Japan's claims, the Panel noted that Japan had 
clarified that the same measure is the object of both its "as applied" and its "as such" claims, and 
explained that the complainants would have the bu rden of presenting arguments and evidence in 
                                               
273 For purposes of our analysis in this section of the Repo rts, we use the terms "single TRRs measure" 
and "single or 'overarching' TRRs measure" interchangea bly, in order to distinguis h the TRRs measure from the 
individual TRRs. 
274 Argentina's appellant's submission, para. 22. 
275 Argentina's appellant's subm ission, paras. 15 and 58. 
276 Panel Reports, para. 6.12. 
277 The Panel's First and Second Preliminary Rulings ar e attached as Annexes D- 1 and D-2, respectively, 
to the Panel Reports. 
278 First Preliminary Ruling, para. 4.1. 
279 First Preliminary Ruling, para. 3.42. 
280 Second Preliminary Ruling, para. 1.8. 
281 Second Preliminary Ruling, para. 1.8. 
282 Second Preliminary Ruling, para. 5.1. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  the course of the proceedings to show the nature  and characteristics of the challenged measure.283 
The Panel found it sufficient at that stage to find that the complainants' identification of the TRRs met the requirements of Article 6.2 of the DSU.
284 In so finding, the Panel also observed that there 
was no indication either that Argentina's ability to defend itself had been prejudiced, or that any 
other Member's ability to understand the nature of the dispute had been impaired by the manner 
in which the TRRs were described in the panel requests.285 
5.1.1.2  Articles 4.4 and 6.2 of the DSU 
5.5.  We begin by discussing the language and func tions of Articles 4.4 and 6.2 of the DSU. Next, 
we compare the texts of the consultations requests and the panel requests. Thereafter, we examine whether the identification of the TRRs measure as a single or "overarching" measure in the complainants' panel requests expanded the sco pe of the dispute or changed its essence, as 
compared to their consultations requests. 
5.6.  The Appellate Body held in Brazil – Aircraft  that "Articles 4 and 6 of the DSU … set forth a 
process by which a complaining party must request consultations, and consultations must be held, 
before a matter may be referred to the DSB for the establishment of a panel."
286 Each of these 
provisions requires a complainant to identify the measure(s) that it is challenging. However, the requirement that applies to consultations requests is not phrased in identical terms to the 
requirement that applies to panel requests. 
5.7.  Article 4.4 of the DSU reads: 
All such requests for consultations shall be notified to the DSB and the relevant 
Councils and Committees by the Member which requests consultations. Any request 
for consultations shall be submitted in writing and shall give the reasons for the 
request, including identification of the measur es at issue and an indication of the legal 
basis for the complaint. 
5.8.  Article 6.2 of the DSU provides in relevant part: 
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly. 
5.9.  Thus, while a consultations request must id entify the "measure at issue", a panel request 
must identify the " specific  measure at issue". This difference in the language between Articles 4.4 
and 6.2 makes it clear that, in identifying the measure at issue, greater specificity is required in a 
panel request than in a consultations request.  
5.10.  This difference in the degree of specificity with which a measure at issue must be identified 
reflects, and is in keeping with, the underlying distinction between the consultations process and 
the panel process themselves. The request for consultations must provide the reasons why consultations are sought, including the identification of the measure at issue and an indication of 
the legal basis of the complaint. The consultations process is "the first step in the WTO dispute 
settlement process", and provides parties the oppo rtunity to "define and delimit the scope of the 
dispute".
287 Parties to consultations "exchange information, assess the strengths and weaknesses 
of their respective cases, narrow the scope of th e differences between them and, in many cases, 
reach a mutually agreed solution"288, or otherwise refine the contours of the dispute to be 
subsequently set out in the panel request.289 Consultations may lead to the narrowing or 
reformulation of a complaint to the extent that the "measure at issue" and the "legal basis" 
                                               
283 Second Preliminary Ruling, para. 4.25. 
284 Second Preliminary Ruling, paras. 4.25 and 4.26. 
285 Second Preliminary Ruling, para. 4.27. 
286 Appellate Body Report, Brazil – Aircraft , para. 131. 
287 Appellate Body Report, US – Upland Cotton , para. 293 (quoting Appellate Body Report, Mexico – 
Corn Syrup (Article 21.5 – US) , para. 54). 
288 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) , para. 54. 
289 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 138. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  identified in the panel request may be "expected to be shaped by, and thereby constitute a natural 
evolution of, the consultations process".290  
5.11.  According to Article 7 of the DSU, a panel's terms of reference are governed by the request 
for the establishment of a panel, unless the partie s agree otherwise. Under Article 6.2, the request 
for the establishment of a panel must identify the "specific measure at issue", which, together with 
the "legal basis of the complaint", constitutes the "matter referred to the DSB" that forms the basis of the panel's terms of reference.
291 The panel request thus defines the scope of the dispute 
and serves to establish and delimit the panel's jurisdiction.292 Not only does Article 6.2 serve this 
"crucial function" of establishing and defining a pa nel's jurisdiction, but it also fulfils a due process 
objective by providing the respondent and potential third parties notice regarding the complainant's case in order to enable them to respond accordingly.
293 
5.12.  While it is the panel request, and not th e consultations request, that governs a panel's 
terms of reference, consultations – as well as the request that triggers and precedes them – nevertheless play an important role in defining the scope of the dispute.
294 The conduct of 
consultations, as well as the ability of the parties to engage fully therein, is directly affected by the 
content of the consultations request. It is this document that informs the respondent, and the WTO membership, of the nature and object of the challenge raised by the complainant, and 
enables the respondent to prepare for the consultations themselves. The effectiveness of 
consultations and the opportunity provided for the parties to reach a mutually agreeable solution to the dispute will be compromised if the consultations request fails to identify the measures at issue, as required by Article 4.4 of the DSU. At  the same time, the requirement under Article 4.4 
to identify the measure at issue cannot be too onerous at this initial step in the proceedings. This 
is because "the claims that are made and the fa cts that are established during consultations do 
much to shape the substance and the scope  of the subsequent panel proceedings."
295 The 
contribution that consultations can make to the refinement of the dispute, in turn, makes it 
"especially necessary" for parties to be fully forthcoming during this phase of the WTO dispute settlement process.
296 We also consider that, as is the case with panel requests, the determination 
of whether a consultations request meets the requirements of the DSU is one that must be made 
"on a case-by-case basis, considering the particular context in which the measures exist and operate."
297 
5.13.  Given the relationship between, and the difference in the language and functions of, 
Articles 4.4 and 6.2 of the DSU, the Appellate Body has explained that a " precise and exact 
identity  between the specific measures that were the subject of consultations and the specific 
measures identified in the request for the establishment of a panel" is not required.298 Indeed, the 
Appellate Body has cautioned against imposing "too rigid a standard" of identity between the 
scope of the request for consultations and the requ est for the establishment of a panel, as this 
would substitute the consultations request for the panel request.299 This would also undermine the 
stipulation in Article 7 of the DSU that, unless the parties agree otherwise, it is the request for the 
establishment of a panel that governs the panel' s terms of reference. Thus, provided that a 
complainant does not "expand the scope"300 or change the "essence" of the dispute301 in its panel 
request as compared to its consultations request, the contents of that panel request will determine 
the panel's terms of reference. In this connection, it is well established that a WTO dispute 
consists of "the matter referred to  the DSB", which in turn comprises the specific measure(s) at 
                                               
290 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 138. 
291 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.6. 
292 See e.g. Appellate Body Reports, US – Countervailing Measures (China) , para. 4.6; and  
US – Countervailing and Anti-Dumping Measures (China) , para. 4.6. 
293 Appellate Body Reports, US – Countervailing Measures (China) , paras. 4.6 and 4.10;  
US – Countervailing and Anti-Dumping Measures (China) , para. 4.7. As the Appellate Body held in  
EC and certain member States – Large Civil Aircraft , "[t]his due process objective is not constitutive of, but 
rather flows from, the proper establishment of a panel's jurisdiction." (Appellate Body Report, EC and certain 
member States – Large Civil Aircraft , para. 640) 
294 Appellate Body Report, US – Shrimp (Thailand)  / US – Customs Bond Directive , para. 293. 
295 Appellate Body Report, India – Patents (US) , para. 94. 
296 Appellate Body Report, India – Patents (US) , para. 94. 
297 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.9. 
298 Appellate Body Report, Brazil – Aircraft , para. 132. (emphasis original) 
299 Appellate Body Report, US – Upland Cotton , para. 293. 
300 Appellate Body Report, US – Upland Cotton , para. 293. 
301 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paras. 137 and 138. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  issue and the legal basis of the complaint (or the claims).302 Accordingly, when a party alleges that 
a panel request has impermissibly expanded the scope of the dispute or changed its essence, ascertaining whether this is so involves scrutiniz ing the extent to which the identified measure at 
issue and/or the legal claims have evolved or changed from the consultations request to the panel 
request. With respect to the measure at issue, in pa rticular, even if such measure is identified with 
sufficient precision in a panel request, it may nevertheless fall outside the panel's terms of reference if that measure was not referred to in the request for consultations, and is separate and 
legally distinct from the measures that were identified therein.
303 
5.14.  In US – Upland Cotton , for example, the United States argued that the panel's terms of 
reference did not encompass export credit guarantees to any products other than  upland cotton. 
According to the United States, since the reference to export credit guarantees in Brazil's request 
for consultations pertained to upland cotton, this limited the scope of the products in respect of 
which the United States' export credit guarantee programmes could be challenged to upland cotton alone.
304 The panel and the Appellate Body, however,  disagreed. They observed that, while one 
paragraph of the consultations request referred to export credit guarantees to upland cotton 
without explicitly mentioning all eligible agricultural commodities, when viewed as a whole, the 
language of the consultations request provided a sufficient basis for considering that the request 
covered export credit guarantees to eligible agricultural commodities including, but not limited to, 
upland cotton.305 Therefore, the Appellate Body upheld the Panel's ruling that "export credit 
guarantees to facilitate the export of United States upland cotton, and other eligible agricultural 
commodities  … [were] within its terms of reference".306 
5.15.  In comparison, in US – Shrimp (Thailand) / US – Customs Bond Directive , India's request 
for consultations referred to a number of legal instruments constituting the Amended Customs Bond Directive (CBD), while its panel request iden tified these, along with additional statutory 
(Section 1623 of the US Tariff Act of 1930) and regulatory (Section 113.13 of the US Code of 
Federal Regulations) provisions, as measures at issue. India claimed that, although its consultations request did not refer to these additional statutory and regulatory provisions, they 
were nevertheless within the panel's terms of reference, as it is the panel request that defines the 
panel's mandate.
307 The panel disagreed and held that "[a] panel's terms of reference will include 
the specific measure identified in the panel request, but that measure should have been identified in the consultations request 'to some degree that is less than "specific"'."
308 Comparing the request 
for consultations with the panel request, the panel concluded that the Amended CBD, on the one 
hand, and Section 1623 of the US Tariff Act of 1930 and Section 113.13 of the US Code of Federal Regulations, on the other hand, were separate and legally distinct measures.
309 Because the latter 
two provisions were not identified in India's request for consultations, they could not form part of 
the panel's terms of reference. The Appellate Body  upheld the panel's ruling that, since the two 
additional provisions identified by India in its panel request were "separate and legally distinct" 
from the Amended CBD identified in India's consul tations request, the scope of the dispute would 
have been expanded by their inclusion in the panel's terms of reference.310 
5.16.  Having examined the language and functions of Article 4.4 and 6.2 of the DSU, as well as 
the relevant jurisprudence, we reiterate that both provisions require the identification of the 
measure at issue, albeit with a higher degree of specificity in a panel request than in a 
consultations request. Considering that consultations facilitate the exchange of information among the parties to allow them to either reach a mutually agreed solution or refine the contours of the 
dispute, the measures and claims identified in a panel request may constitute a natural evolution 
of the consultations process. Thus, there is no n eed for a "precise and exact identity" between the 
                                               
302 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.6. 
303 See Appellate Body Reports, US – Certain EC Products , paras. 69-78 and 82; and US – Shrimp 
(Thailand) / US – Customs Bond Directive , para. 295. 
304 Appellate Body Report, US – Upland Cotton , para. 290. 
305 Appellate Body Report, US – Upland Cotton , para. 291. 
306 Appellate Body Report, US – Upland Cotton , para. 294. (emphasis added) 
307 Appellate Body Report, US – Shrimp (Thailand) / US  – Customs Bond Directive , para. 287. 
308 Appellate Body Report, US – Shrimp (Thailand) / US  – Customs Bond Directive , para. 288 (quoting 
Panel Report, US – Customs Bond Directive , para. 7.181). 
309 Appellate Body Report, US – Shrimp (Thailand) / US  – Customs Bond Directive , paras. 288, 289, 
and 294. 
310 Appellate Body Report, US – Shrimp (Thailand) / US  – Customs Bond Directive , paras. 295 and 296. 
See also Appellate Body Report, US – Certain EC Products , para. 82. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  measures identified in the consultations request and the specific measure identified in the panel 
request, provided that the latter does not expand the scope of the dispute or change its essence. 
The determination of whether the identification of  the "specific measure at issue" in the panel 
request expanded the scope or changed the essence of the dispute must be made on a 
case-by-case basis. 
5.1.1.3  Identification of the single T RRs measure as a "measure at issue" 
5.17.  Argentina appeals the Panel's conclusion in its First Preliminary Ruling that the unwritten 
"overarching" TRRs measure was within its terms of reference.311 While Argentina does not dispute 
that the language used to describe the "commitments" in the complainants' consultations requests is the same as that used to describe the individual TRRs in their panel requests
312, Argentina 
nevertheless argues that the "commitments" do not refer to any measures that might be subject 
to challenge, as these pertain only to the DJAI and the Certificados de Importación  (CIs).313 
Further, Argentina contends that, despite the similarity in the language between the "commitments" and the individual TRRs, the dist inction it draws is between the individual 
"commitments" mentioned in the complainants' consultations requests and the single or 
"overarching" TRRs measure identified in their panel requests.
314 In Argentina's view, the 
"overarching" measure is in the nature of a new measure that impermissibly expanded the scope 
of the dispute.315 
5.18.  In response, the complainants argue th at they were not required to identify the 
TRRs measure in their consultations requests with the same degree of specificity as in their panel requests, owing to the fact that Articles 4.4 and 6.2 of the DSU do not require a "precise and exact 
identity" between the two requests.
316 The complainants add that the "close identity"317 or "nearly 
identical" language318 of, or substantial similarity319 between, the consultations requests and the 
panel requests show that there was neither an ex pansion in the scope of the dispute nor a change 
in its essence.320 
5.19.  As the Panel indicated, the complainants id entified the measures at issue in their requests 
for consultations "in almost identical terms".321 We reproduce below the relevant portions of the 
complainants' consultations requests. Square brackets indicate where the language of the three 
consultations requests differs: 
Argentina often requires the importers of goods to undertake certain commitments, 
including, inter alia , to limit their imports, to balance them with exports, to make or 
increase their investments in production facilities in Argentina, to increase the local 
content of [ European Union : the products they manufacture] [ United States and 
Japan : products manufactured in Argentina] [ United States : (and thereby discriminate 
against imported products), to refrain from transferring revenue or other funds abroad 
and/or to control the price of imported goods.] [ European Union and Japan : , not to 
transfer benefits abroad and/or to control their prices.] 
[European Union : The issuance of LAPIs, CIs and CL Cs and the approval of DJAIs is 
being systematically delayed or refused by the Argentinean authorities on non-transparent grounds. Often the Argentinean authorities make the issuance of 
                                               
311 Argentina's appellant's submission, para. 9. 
312 Argentina's response to ques tioning at the oral hearing. 
313 Argentina's appellant's subm ission, paras. 27 and 30. 
314 Argentina's response to questioning at the or al hearing; Argentina's appellant's submission, 
paras. 43 and 44. 
315 Argentina's appellant's submission, para. 12. 
316 European Union's appellee's subm ission, para. 64; United States' appellee's submission, paras. 28, 
41, 43, 45, and 46; Japan's appellee's submission, paras. 18, 20, 21, and 37. 
317 European Union's appellee's submission, para. 63 (quoting First Preliminary Ruling, 
paras. 3.20-3.24). 
318 Japan's appellee's submission, para. 32. 
319 United States' appellee's submission, paras. 6, 24, 29, 31, and 39-41. 
320 European Union's appellee's submission, heading 2. 4.2 and paras. 63, 92, 93, and 94; United States' 
appellee's submission, paras. 6, 24, 29, and 47; Japan's appellee's submission, para. 32. 
321 First Preliminary Ruling, para. 3.18. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  LAPIs, CIs and CLC and the approval of  DJIA conditional upon the importers 
undertaking to comply with the trade restrictive commitments mentioned above.] 
[United States and Japan : The issuance of CIs and the approval of DJAIs are being 
systematically delayed or refused by the Argentinean authorities on non-transparent 
grounds. The Argentinean authorities often make the issuance of CIs and the approval 
of DJAIs conditional upon the importers undertaking to comply with the above-mentioned trade-restrictive commitments.] 
These measures restrict imports of goods and discriminate between imported and 
d o m e s t i c  g o o d s .  T h e y  d o  n o t  a p p e a r  t o  be related to the implementation of any 
measure justified under the WTO Agreement, but instead [ Japan : are] [ United States : 
appear to be] aimed at advancing [ European Union and Japan : the Argentinean 
Government's] [ United States : Argentina's] stated policies of re-industrialization, 
import substitution and elimination of trade balance deficits.  
The legal [ United States and Japan : instruments] [ European Union : measures] 
through which Argentina [ European Union and Japan : imposes these restrictions] 
[United States : maintains these measures] include, but are not limited to, the legal 
instruments listed in the Annexes, as well as any amendments, replacements, 
extensions, implementing measures or related measures.
322 
5.20.  The complainants' panel requests have similar content. In all three panel requests, section I 
identifies the DJAI procedure as a measure at issue, section II identifies the CIs as a measure at issue, and section III is entitled "Restrictive Tr ade-Related Requirements". The relevant parts of 
section III of the complainants' panel requests are set out below, indicating in square brackets 
where they differ: 
Separately and/or in combination with the [ European Union and Japan : above] 
measures described in Sections I and II, Argentina requires economic operators to 
undertake certain actions with a view to pursuing Argentina's stated policy objectives of elimination of trade balance deficits and import substitution. Those actions include 
to: (1) export a certain value of goods from Argentina related to the value of imports; 
(2) limit the volume of imports and/or reduce their price; (3) refrain from repatriating funds from Argentina to another country; (4) make or increase investments in Argentina (including in productions facilities); and/or (5) incorporate local content into 
domestically produced goods. 
These requirements are not stipulated in any published law or regulation. To satisfy 
these requirements, economic operators no rmally either submit a statement or 
conclude an agreement with Argentina setting out the actions they will take. Argentina 
enforces these [ United States and Japan : commitments] [ European Union : 
requirements] by withholding permission to import, inter alia , by withholding the 
issuance of DJAI or CI approvals. 
[European Union : The European Union considers that these requirements, when 
viewed as an overarching measure aiming at eliminating trade balance deficits and/or substituting imports by domestic products, as well as when viewed as separate 
measures in each of the instances listed in Annex III, and whether analysed 
separately or together with the measures described in Sections I and II, are inconsistent with the following …] 
[[The United States] [Japan] considers that whether analyzed separately or together 
with the measures described in Sections I and II, these requirements and any application thereof, are inconsistent with the following provisions … .]
323  
5.21.  Comparing the language of the complainants' requests for consultations and their panel 
requests, we consider the following to be evident from both sets of documents. Each consultations 
                                               
322 European Union's request for consultations, pp. 1-2. See also United States' request for 
consultations, pp. 1-2; and Japan's request for consultations, pp. 1-2. 
323 EU Panel Request, pp. 3-4. See also US Panel Request, p. 4; an d Japan Panel Request, pp. 3-4. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  request, and each panel request, identifies three categories of measures: the DJAI procedure, the 
CIs, and the TRRs. With respect to the TRRs, the consultations requests and the panel requests identify the same five "commitments" or "requirements". Specifically, Argentina requires the importers of goods to undertake certain "commitments" (consultations requests) or "requires 
economic operators to undertake certain actions" (panel requests) including: (i) to limit imports; 
(ii) to balance imports with exports by exporting a certain value of goods related to the value of 
imports; (iii) to refrain from repatriating funds or benefits abroad; (iv) to make or increase 
investments in Argentina; and/or (v) to increase local content of products manufactured in 
Argentina.
324 
5.22.  Both sets of requests describe these five  "commitments" or "requirements" as being "trade 
restrictive". While the consultations requests use the term "trade restrictive commitments"325, the 
panel requests each contain a separate heading entitled "Restrictive Trade Related 
Requirements".326 
5.23.  All of the requests describe these "commitments" or "requirements" as being imposed 
pursuant to Argentina's "stated policies" or "policy objectives" of "import substitution" and the 
"elimination of trade deficits". The consultation s requests state that these "commitments", along 
with the DJAI and non-automatic licences, such as the CIs, are "aimed at advancing the 
Argentinean Government's327 stated policies of re-industrialization, import substitution and 
elimination of trade balance deficits".328 The panel requests, meanwhile, explain that Argentina 
imposes these "requirements" with a view to pursuing its "stated policy objectives of elimination of trade balance deficits and import substitution".
329 
5.24.  Both sets of requests identify a relation ship between the "commitments" or "requirements", 
on the one hand, and the CIs and the DJAI, on the other hand. The consultations requests provide that the issuance of the CIs and the approval of the DJAI are made "conditional upon the 
importers undertaking to comply" with these "commitments".
330 The panel requests state that 
"Argentina enforces these [requirements331] by withholding permission to import, inter alia , by 
withholding the issuance of DJAI or CI approvals."332 
5.25.  Aside from the similarities shared by th e complainants' consultations requests and panel 
requests, we also note some apparent differenc es. Whereas all the complainants' consultations 
requests refer to individual "commitments", the EU Panel Request uses the description "when viewed as an overarching measure … as well as when viewed as separate measures in each of the 
instances listed in Annex III"
333, and the US Panel Request and Japan Panel Request use the 
phrase "whether analyzed separately or together  with [the DJAI procedure and the CIs], these 
requirements, and any application thereof".334  
5.26.  Like the Panel335, we see a high degree of similarity in the language and content of the 
consultations requests and the panel requests. There is no dispute that the complainants' consultations requests contain no explicit refere nce to a single or "overarching" TRRs measure. 
However, as we have previously explained, ther e is no need for a "precise and exact identity" 
between the consultations request and the panel requ est, provided that there is no expansion in 
the scope of the dispute or a change in its essence. A panel request must identify the " specific 
                                               
324 European Union's requ est for consultations, p. 1;  EU Panel Request, p. 3; United States' request for 
consultations, p. 1; US Panel Request, p. 4; Japan's requ est for consultations, p. 1; Japan Panel Request, p. 3. 
325 European Union's re quest for consultations, p. 1; United St ates' request for consultations, p. 1; 
Japan's request for consultations, p. 1. 
326 EU Panel Request, p. 3; US Panel Request, p. 4; Ja pan Panel Request, p. 3. 
327 The United States' request for consultations states: "aimed at advancing Argentina's stated 
policies …". 
328 European Union's re quest for consultations, p. 2; United St ates' request for consultations, p. 2; 
Japan's request for consultations, p. 1. 
329 EU Panel Request, p. 3; US Panel Request, p. 4; Ja pan Panel Request, p. 3. 
330 European Union's re quest for consultations, p. 1; United St ates' request for consultations, p. 1; 
Japan's request for consultations, p. 1. 
331 The EU Panel Request uses the term "requirements", while the US Panel Request and the Japan 
Panel Request use the term "commitments". 
332 EU Panel Request, p. 3; US Panel Request, p. 4; Ja pan Panel Request, p. 4. 
333 EU Panel Request, p. 4. 
334 US Panel Request, p. 4; Japan Panel Request, p. 4. 
335 First Preliminary Ruling, paras. 3.19-3.24 and 3.28. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  measure at issue"336 in a manner that is sufficiently precise, as required by Article 6.2 of the DSU, 
and that does not expand the scope or change the essence of the dispute. In our view, the 
language identifying the single TRRs measure in the panel requests can be considered to have evolved from, and to be a more elaborate versio n of, the language identifying the "commitments" 
in the consultations requests. We, therefore, agree with the Panel that the description of the TRRs 
as a single or "overarching" measure is only an  "enunciation in different terms" of the same 
measures identified in the complainants' consultations requests, and that "nothing in this 
reformulation … per se expands that scope or changes the essence of the dispute".
337  
5.27.  Argentina argues that the similarity in th e language of the consultations requests and the 
panel requests, specifically in the identification of "commitments" in the former and "requirements" in the latter, has "no bearing" on whether the consultations requests identified a measure "with its 
own distinct normative content".
338 In Argentina's opinion, instead of suggesting the existence of 
an "overarching" measure, the reference to "commitments" in the complainants' consultations requests could, at most, be understood as a challenge, on an "as applied" basis, against specific 
"statements" or "agreements" between the Argentine Government and importers.
339 We disagree 
with Argentina. 
5.28.  Comparing the consultations requests and the panel requests, we consider it true that the 
panel requests contain additional language not a ppearing in the consultations requests, i.e. the 
EU Panel Request's "overarching measure" and "whe n viewed as separate measures in each of the 
instances listed in Annex III"340, and the US Panel Request's and Japan Panel Request's "whether 
analyzed separately or together with [the DJAI procedure and the CIs], these requirements, and 
any application thereof".341 Yet, the mere existence of this additional language, alone, does not 
mean that the language identifying the single TRRs measure in the panel requests cannot be considered to have evolved from the language identifying the "commitments" in the consultations 
requests. We see nothing in the language of the consultations requests that precludes the 
identification of a single or "overarching" TRRs measure in the panel requests or suggests that only specific applications thereof may be identified as specific measures at issue. To the contrary, there 
is language in the consultations requests that suggests that the challenge raised is not limited to 
specific instances of application of the TRRs. Specifically, the complainants' consultations requests state that Argentina " often requires " importers to undertake five "commitments", which are the 
same five "requirements" identified in the panel requests.
342 Further, the consultations requests 
state that the measures identified therein (i.e. the DJAI procedure, the CIs, and the 
"commitments") are aimed at advancing Argentina's "stated policies" of "import substitution" and "elimination of trade balance deficits".
343 Lastly, the consultations requests state that the "legal 
measures through which Argentina imposes these restrictions include, but are not limited to , the 
legal instruments listed in the Annexes".344 T o  u s ,  r a t h e r  t h a n  l i m i t i n g  t h e  m e a s u r e s  a t  i s s u e  
identified in the panel requests to those that are challenged "as applied", the foregoing language 
of the consultations requests may reasonably be read as establishing a basis from which the 
complainants could legitimately elaborate their description of the measure at issue as the single or "overarching" TRRs measure in their panel requests.  
5.29.  In our view, describing the TRRs as a single or "overarching" measure in the panel requests 
reflects a more precise enunciation of the measure than in the consultations requests. This is 
consistent with the more exacting requirement in Article 6.2 of the DSU to identify the "specific 
measure at issue". We consider that the identification in the panel requests of the single or 
"overarching" TRRs measure may reasonably be considered to be an evolution or a further 
                                               
336 Emphasis added. 
337 First Preliminary Ruling, para. 3.33. 
338 Argentina's appellant's submission, para. 43. 
339 Argentina's appellant's submission, para. 28. 
340 EU Panel Request, p. 4. 
341 US Panel Request, p. 4; Japan Panel Request, p. 4. 
342 European Union's re quest for consultations, p. 1; United St ates' request for consultations, p. 1; 
Japan's request for consultations, p. 1. (emphasis added) 
343 European Union's re quest for consultations, p. 2; United St ates' request for consultations, p. 2; 
Japan's request for consultations, p. 1. The panel requests use the phrase "stated policy objectives". (EU Panel 
Request, p. 3; US Panel Request, p. 4; Japan Panel Request, p. 3) 
344 European Union's re quest for consultations, p. 2. (emphasis added) See also Unit ed States' request 
for consultations, p. 2; and Japan's request for consultations, p. 2.  WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  elaboration of the language of the consultations requests, possibly achieved through and shaped 
by the consultations process.345 
5.30.  Our examination of the language of the complainants' consultations requests and panel 
requests shows that, while the panel requests identified the TRRs measure with a greater degree 
of specificity than the consultations requests, th e manner in which this was done did not expand 
the scope of the dispute or change its essence.  Rather, the essence of the TRRs measure was 
identified in the consultations requests, and the additional language of the panel requests, 
including the identification of the single or "overarching" TRRs measure, can be said to have 
evolved from the language of the consultations requests. We thus agree with the Panel that the complainants' panel requests reflect a permissible reformulation of the measure at issue that did not expand the scope or change the essence of the dispute.
346 Therefore, we see no error in the 
Panel's finding, in paragraphs 3.33 and 4.1.b of the First Preliminary Ruling347, that the 
characterization of the TRRs measure as a single or "overarching" measure in the complainants' panel requests did not expand the scope or change the essence of the dispute. 
5.31.  For the reasons stated above, we uphold the Panel's finding, in paragraph 7.1.b of the 
EU Panel Report, paragraph 7.5.b of the US Pane l Report, and paragraph 7.9.b of the Japan Panel 
Report, that "[t]he characterization of the [TRRs] as a single measure in the complainants' panel 
requests did not expand the scope or change the essence of the dispute".348 Consequently, 
we find that the single or "overarching" TRRs me asure was within the Panel's terms of reference. 
5.1.2  The European Union's other appeal 
5.32.  The European Union appeals the Panel's finding that the 23 measures described by the 
European Union in its first written submission to the Panel as "specific instances" of application of 
the TRRs were not clearly identified in the EU Pane l Request and did not, therefore, fall within the 
Panel's terms of reference. According to the European Union, its panel request identified these 
measures with "sufficient particularity" in  conformity with Article 6.2 of the DSU349, and the Panel 
erred in finding otherwise. The European Union thus  requests us to reverse the Panel's finding in 
paragraph 7.1.c of the EU Panel Report, and to find  instead that the 23 measures in question fell 
within the Panel's terms of reference as "measures at issue".350 The European Union also makes a 
conditional request for completion of the analysis. Should we reverse or otherwise declare moot the Panel's findings as to the existence of the TRRs measure and its inconsistency with Articles XI:1 and III:4 of the GATT 1994, the Euro pean Union requests us to complete the legal 
analysis and find that Argentina acted inconsistently with Articles XI:1 and/or III:4 of the 
GATT 1994 in each of these 23 specific instances.
351 
5.1.2.1  Background 
5.33.  In its request for consultations, the Europe an Union alleged that Argentina "often requires" 
importers to undertake "certain commitments", including: (i) to limit their imports; (ii) to balance them with exports; (iii) to make or increase their investments in production facilities in Argentina; 
(iv) to increase the local content of the products they manufacture in Argentina; and/or (v) not to 
transfer benefits abroad and/or control their prices.
352 Subsequently, in its panel request, the 
European Union identified as specific measures at issue "Restrictive Trade Related Requirements", which consist of the same "commitments" it referred to in its consultations request. The 
European Union stated that its challenge is with respect to these requirements "when viewed as an 
overarching measure".
353 The European Union also challenged as separate measures each of the 
instances of application of the TRRs listed in Annex III to its panel request.354 Annex III lists 
29 "Instances of restrictive trade-related requirements affecting products originating in the 
                                               
345 First Preliminary Ruling, paras. 3.31 (quoting Appellate Body Report, Mexico – Anti-Dumping 
Measures on Rice , para. 138) and 3.33. 
346 First Preliminary Ruling, para. 3.33. 
347 See also Second Preliminary Ruling, para. 4.32. 
348 See also First Preliminary Ruling, para. 4.1.b. 
349 European Union's other appe llant's submission, para. 21. 
350 European Union's other appe llant's submission, para. 23. 
351 European Union's other appe llant's submission, para. 24. 
352 European Union's request for consultations, p. 1. 
353 EU Panel Request, p. 4. 
354 EU Panel Request, p. 4. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  European Union". For each item on the list, Annex III provides the title of a press release or news 
article, the date of its publication, and the webs ite where it may be accessed. The European Union 
later narrowed down these 29 instances to only 23 cases in section 4.2.4 of its first written submission to the Panel, and explained that it  i s  c h a l l e n g i n g  a s  s e p a r a t e  m e a s u r e s  t h e s e  
23 specific instances where Argentina has applied one or more of the TRRs to particular economic 
operators.
355 
5.34.  As we have previously discussed, the Panel issued two preliminary rulings.356 In its First 
Preliminary Ruling, the Panel declined to rule on whether the complainants' claims that Argentina 
alleged to be "as applied" were included in its terms of reference, and decided instead to consider these in the course of the proceedings.
357 During the Panel's first substantive meeting with the 
parties, Argentina requested the Panel to resolve immediately two outstanding issues concerning 
its terms of reference, including the European Union's identification as separate measures of 23 
specific instances of application of the TRRs.358 In its Second Preliminary Ruling, the Panel 
addressed this request and ruled that the 23 "specific instances" of application of the TRRs 
described in the European Union's first written submission do not constitute "measures at issue" in 
DS438 (complaint by the European Union).359 According to the Panel, a reader of the EU Panel 
Request would have had to visit the websites identified in Annex III, read the 29 articles or press 
releases, deduce from each what the European Unio n challenges as specific measures at issue, and 
thereafter resort to the European Union's first written submission to discern the "specific instances of application of the [TRRs]" being challenged as 23 individual measures.
360 In the Panel's view, a 
panel request that requires a reader to access information from a website and deduce what the 
challenged measures are from that information cannot be said to be "sufficiently precise" in 
conformity with Article 6.2 of the DSU.361 Thus, the Panel found that, on its face, Annex III to the 
EU Panel Request did not identify any "specific measures at issue".362 
5.35.  The European Union appeals the findings of the Panel that the 23 specific instances of 
application of the TRRs were not precisely identified and do not constitute measures at issue in this dispute. The European Union argues that the language of its panel request shows that it is not only 
challenging the existence of an overarching measure, but also challenging separately several 
actions taken by Argentina that are of the same nature as those described under the overarching measure.
363 Specifically, the European Union explains that Annex III to the EU Panel Request lists 
29 instances where Argentina imposed certain TRRs that share the same characteristics as the five 
requirements described as part of the overarching measure.364 For each of these 29 instances, 
Annex III provides the title of, and the website link containing, the relevant press release that describes the measure at issue in terms of the en tity or entities concerned, the date and the 
nature of the requirements imposed by the Argentine Government, and the commitments that the 
entity or entities undertook.
365 Thus, the European Union asserts that the Panel erred in concluding 
that it was not possible to identify the specific me asures at issue from the information contained in 
the title of each press release, as well as its content.366 
5.36.  In response, Argentina refrains from taking a position on the merits of the European Union's 
other appeal.367 Instead, Argentina contends that the iden tification of the 29 specific instances of 
application of the TRRs in Annex III to the EU Panel Request impermissibly expanded the scope of 
the dispute since the measures were not identified in the European Union's request for 
consultations.368 Thus, should we reverse the Panel's findings and rule that the specific instances 
of application of the TRRs were identified as "specific measures at issue" in the EU Panel Request, 
                                               
355 European Union's first written submission to the Panel, section 4.2.4 and para. 385. 
356 The First and Second Preliminary Rulings are attach ed as Annexes D-1 and D-2, respectively, to the 
Panel Reports. 
357 First Preliminary Ruling, para. 3.42. 
358 Second Preliminary Ruling, paras. 2.3 and 2.5. 
359 Second Preliminary Ruling, para. 5.1.b. 
360 Second Preliminary Ruling, paras. 4.35 and 4.36. 
361 Second Preliminary Ruling, para. 4.37. 
362 Second Preliminary Ruling, para. 4.37. 
363 European Union's other appe llant's submission, para. 15. 
364 European Union's other appe llant's submission, para. 16. 
365 European Union's other appe llant's submission, para. 17. 
366 European Union's other appe llant's submission, para. 18. 
367 Argentina's appellee's su bmission, paras. 14 and 16. 
368 Argentina's appellee's  submission, para. 13. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  then Argentina requests us to find that the addition of these "new measures" impermissibly 
expanded the scope of the dispute, and that they were, for this reason, outside the Panel's terms of reference.
369 
5.37.  We begin by recalling the jurisprudence on Article 6.2 of the DSU as regards the 
identification of the specific measures at issue.  Next, we examine whether the 23 specific instances 
of application of the TRRs were identified as measures at issue in the EU Panel Request. Thereafter, we address the issue of whether the id entification of the 23 measures in the EU Panel 
Request expanded the scope of the dispute, as compared to its consultations request. Finally, we 
discuss the European Union's conditional request for completion of the legal analysis. 
5.1.2.2  Article 6.2 of the DSU 5.38.  The relevant portion of Article 6.2 of the DSU reads: 
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly. 
5.39.  Article 6.2 has two distinct requirements, namely: (i) the identification of the specific 
measures at issue ; and (ii) the provision of a brief summary of the legal basis of the complaint . As 
the Appellate Body has held in previous disputes , these two requirements constitute the "matter 
referred to the DSB", which forms the basis of a panel's terms of reference under Article 7.1 of the DSU.
370 Article 6.2 defines the scope of the dispute between the parties, thereby establishing and 
delimiting the panel's jurisdiction and serving the due process objective of notifying the 
respondent and third parties of the nature of the case.371 Moreover, in order to "present the 
problem clearly", within the meaning of Article 6. 2, a panel request must "plainly connect" the 
challenged measure(s) with the provision(s) claimed to have been infringed so that a respondent 
can "know what case it has to answer, and … begin preparing its defence".372 
5.40.  With respect to the requirement under Article 6.2 to identify the specific measure at issue, 
the Appellate Body explained in EC – Selected Customs Matters that the "specific measure" is the 
"object of the challenge, namely, the measure that is alleged to be causing the violation of an 
obligation contained in a covered agreement".373 Thus, the "measure at issue" referred to in 
Article 6.2 is " what is being challenged by the complaining Member".374 
5.41.  Further, in  EC and certain member States – Large Civil Aircraft , the Appellate Body 
explained that the determination of whether a panel request is "sufficiently precise" requires 
scrutiny of the panel request "as a whole, and on the basis of the language used".375 The issue of 
whether the panel request identifies the "specific measure at issue" may depend on the particular 
context in which those measures exist and oper ate, and may require examining the extent to 
which those measures are capable of being precisely identified.376 
5.42.  A panel request's compliance with the re quirements of Article 6.2 of the DSU must be 
demonstrated on its face as it existed at the time of its filing. Consequently, any defects in the 
panel request cannot be "cured" by the subsequent submissions of the parties.377 Nevertheless, 
subsequent submissions, such as the complaining party's first written submission, may be 
                                               
369 Argentina's appellee's  submission, para. 17. 
370 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.6. 
371 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , paras. 4.6 and 4.7. 
372 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.8 (quoting 
Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 162). 
373 Appellate Body Report, EC – Selected Customs Matters , para. 130. 
374 Appellate Body Report, EC – Selected Customs Matters , para. 130. (emphasis original) 
375 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 641. (fns omitted) 
376 Appellate Body Reports, China – Raw Materials , para. 220. 
377 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.9. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  consulted to the extent that they may confirm or clarify the meaning of the words used in the 
panel request.378  
5.1.2.3  Identification of the measures at issue 5.43.  In its panel request, the European Union challenges the TRRs not only as an "overarching" 
measure, but also "when viewed as separate measures in each of the instances listed in 
Annex III".
379 Annex III to the EU Panel Request bears the heading "Instances of restrictive trade 
related requirements affecting products originating in the European Union", and lists the titles 
of 29 news articles and press releases, includin g the date of their publication and the website 
addresses where they may be accessed. 
5.44.  For example, the first two of the 29 inst ances of application listed in Annex III read as 
follows: 
1. "GOVERNMENT SEEKS TO REDUCE VE HICLE IMPORTS FROM THIRD COUNTRIES 
BY 20%", MINISTRY OF INDUSTRY, 10 DECEMBER 2010 
http://www.prensa.argentina.ar/2010/12/10/14694-el-gobierno-busca-reducir-en-un-
20-la-importacion-de-vehiculos-de-terceros-paises.php 
 2. "RENAULT TRUCKS TELLS GOVERNMENT IT WILL INCREASE ITS EXPORTS", 
MINISTRY OF INDUSTRY, 7 FEBRUARY 2011 
http://www.prensa.argentina.ar/2012/02/07/27 966-renault-trucks-anuncio-al-gobierno 
-que-aumentara-sus-exportaciones.php 
5.45.  Footnote 1 to Annex III states that the list of measures set out in the Annex "has the 
exclusive purpose of identifying measures … and should not be understood as an exhaustive list of 
evidence available with respect to the specific instances of restrictive trade related requirements".
380 
5.46.  In ruling that the EU Panel Request does not identify the 23 instances of application of the 
TRRs as "measures at issue" in accordance with Article 6.2 of the DSU, the Panel explained: 
A panel request that requires a reader to access information from a website and 
deduce from that information what the challenged measures are, cannot be said to be 
"sufficiently precise" in identifying the specific measures at issue for the purpose of Article 6.2 of the DSU: it is not sufficient for the panel to ascertain its terms of reference; it does not serve the due process objective of notifying the respondent of 
the nature of the complainant's case with respect to the specific measure; and it may 
impair the ability of any other WTO Member to understand the nature of the dispute and determine whether it has any substantial interest in the matter. The list provided 
by the European Union in Annex III of its panel request may contain information that 
may become relevant in the course of the proceedings in order to demonstrate the nature and existence of the measures describ ed by the European Union. However, on 
its face, the list provided by the European Union in Annex III of its panel request does 
not identify any "specific measures at issue".
381 
5.47.  Nothing in the above reasoning suggests that the Panel itself took account of the contents of 
the information found at the websites identified in Annex III to the EU Panel Request. Rather, in 
finding that the EU Panel Request, "on its face", does not identify any specific instance of 
application of TRRs as a measure, the Panel seemed to have considered that accessing the websites listed in Annex III and seeking to deduce what the challenged measures are from the 
information found at such sites would necessarily involve going beyond an examination of the 
panel request "on its face", and that this would be improper. 
                                               
378 Appellate Body Reports, US – Carbon Steel , para. 127; US – Countervailing and Anti-Dumping 
Measures (China) , para. 4.9. 
379 EU Panel Request, p. 4; European Union's other appellant's submission, para. 15. 
380 EU Panel Request, fn 1 to Annex III. 
381 Second Preliminary Ruling, para. 4.37. (fns omitted) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5.48.  We recall that the determination of whether a panel request satisfies the requirements of 
Articles 6.2 of the DSU must be based on an exam ination of the panel request on its face as it 
existed at the time of its filing.382 The term "on its face", however, must not be so strictly 
construed as to preclude automatically reference to sources that are identified in its text, but the 
contents of which are accessible outside the panel request document itself. 
5.49.  It is common practice, for example, for panel requests identifying legislation, regulations, or 
other similar instruments as measures at issue to provide information that enables the respondent 
and potential third parties to access the text of the measures themselves, rather than to copy the 
entire text of these instruments into the body of the panel requests, or to attach them as annexes. Such information may consist of the title, date of enactment or entry into force, the official number of the law or regulation, and the citation to the government regulatory bulletin in which it was 
published. 
5.50.  Indeed, this is the approach followed in Annex I to the EU Panel Request, which lists, in a 
brief fashion, the legal instruments that make up the DJAI procedure. In our view, this method of 
identifying the measure at issue is not materially different from succinctly identifying various 
pieces of legislation by providing links to the go vernment websites where such legislation could be 
accessed. This manner of identification would not necessarily mean that these pieces of legislation 
were not identified as specific measures at issu e in accordance with Article 6.2 of the DSU. By 
providing a reference to a website in the panel request, the contents of such website may be permissibly examined in order to ascertain whether the measure at issue is identified with sufficient precision in the panel request.  
5.51.  Understanding the need to scrutinize a panel request "on its face" as limiting the 
examination of that request to the words appearing in the document would, in our view, be too formalistic an approach. It could, moreover, encourage complainants to incorporate entire texts of 
identified measures into the body of their pane l requests. So long as a panel request seeks to 
identify the specific measure at issue through reference to a source where that measure's contents may readily be found and accessed, such contents may be the subject of scrutiny in assessing 
whether that request identifies the specific measures at issue within the meaning of, and in 
conformity with, Article 6.2 of the DSU. 
5.52.  At the same time, we do not mean to suggest that the identification of measures at issue by 
simple reference to external sources will always su ffice to meet the requirements of Article 6.2 of 
the DSU. This is something that must be determ ined on a case-by-case basis, bearing in mind 
whether the specific measures at issue can be discerned from the panel request. A complainant whose panel request simply refers to external sources runs the risk that such request may fall 
short of the requirements of Article 6.2.
383 We observe, in this connection, that the contents of 
webpages may not always be static. Moreover, a complainant may encounter more difficulty complying with Article 6.2 where its panel request refers to press releases or news articles about 
measures, rather than to the contents of the me asures themselves. Yet, in circumstances where a 
complainant is confronted with measures that are, for example, unwritten, unpublished, or otherwise publicly inaccessible, reference to such secondary sources may be the only available means of identifying the measure at issue. 
5.53.  In this dispute, in addition to providing the titles of the press releases and news articles, 
their dates of publication, and the websites where they may be accessed, it might have been more prudent for the European Union to also have provided a brief summary of the main elements of 
the measure discussed in each press release or news article, for example, by referring to the 
specific TRRs imposed, and the particular economic operators concerned. Nevertheless, as we have explained, the fact that the European Union opted me rely to refer to the titles of the press releases 
or news articles, and to the websites where they may be found does not automatically take their 
contents outside the ambit of the examination re quired for determining whether the panel request 
identified the 23 instances of application of the TRRs  as specific measures at issue. We also note 
that, in this dispute, Argentina did not contest the contents of the websites listed in Annex III to 
the EU Panel Request, raise any concern as to the accessibility of the individual website links, or 
question whether the contents of these websites may have changed. 
                                               
382 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.9. 
383 See Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China) , para. 4.31. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5.54.  We recall that the Panel found that th e EU Panel Request does not identify any of 
the 23 specific instances of application of the TRRs as specific measure at issue simply on the grounds that a reader of that panel request would have had to access information from a website and to deduce therefrom the challenged measures. In the circumstances of this dispute, and for 
the reasons set out above, we are of the view that the Panel could not properly have reached such 
a finding without first examining these press releases and news articles and explaining why their contents, read in conjunction with the main te xt of the EU Panel Request, did not identify 
the 23 measures in a manner that is sufficiently precise.  
5.55.  Accordingly, we find that the Panel erred in finding that the EU Panel Request does not 
satisfy the requirements of Article 6.2 of the DS U with respect to the 23 specific instances of 
application of the TRRs. We, therefore, reverse the Panel's finding, in paragraph 7.1.c of the 
EU Panel Report, that "[t]he 23 measures described  by the European Union in section 4.2.4 of its 
first written submission as 'specific instances' of application of alleged [TRRs] were not precisely identified in the European Union's panel request as measures at issue", and that "accordingly, 
those 23 measures do not constitute 'measures at issue' in the present dispute".
384  
5.1.2.4  The 23 specific instances of applic ation of the TRRs as measures at issue 
5.56.  Having found that the Panel erred in findin g that the 23 instances of application of the TRRs 
do not constitute measures at issue in this dispute, we now turn to assess whether the EU Panel 
Request identified each of the specific instances of  application of the TRRs as measures at issue in 
conformity with Article 6.2 of the DSU. We re call that, in its first written submission, the 
European Union chose to pursue only 23 of the 29 instances originally identified in its panel 
request. Hence, we will focus on these 23 instance s of application of the TRRs by examining the 
contents of the relevant press releases and news reports.  
5.57.  In reviewing each press release and news report, we must determine whether the relevant 
contents, when read together with the narrative of the EU Panel Request, identify the specific 
instance of application of the TRRs to particular economic operators, that is, whether the specific measure at issue subject to challenge by the Europe an Union is discernible from such content. Our 
task is to ascertain whether these 23 measures were identified with sufficient precision by the 
European Union in its panel request as to satisfy the requirements of Article 6.2 of the DSU and, 
therefore, formed part of the Panel's terms of reference.
385 In our determination, we will consider 
the contents of each press release and news article listed in Annex III to the EU Panel Request to 
ascertain whether it specifically identifies the involvement of the Argentine Government, the 
economic operator, sector, or industry concerned, and the particular TRR(s) imposed. In doing so, we bear in mind the narrative of the EU Panel Request, which reads in relevant part: 
Separately and/or in combination with the above measures described in Sections I 
and II, Argentina requires economic operators to undertake certain actions with a view to pursuing Argentina's stated policy objectives of elimination of trade balance 
deficits and import substitution. Those actions include to: (1) export a certain value of 
goods from Argentina related to the value of imports; (2) limit the volume of imports and/or reduce their price; (3) refrain from repatriating funds from Argentina to another country; (4) make or increase investments in Argentina (including in 
production facilities); and/or (5) incorporate local content into domestically produced 
goods. 
… 
The European Union considers that these requirements, … when viewed as separate 
measures in each of the instances listed in Annex III, … are inconsistent with the following 
                                               
384 See also Second Preliminary Ruling, para. 5.1.b. 
385 We note that, during the Panel proceedings, Argentina stated that it "has not denied or called into 
question the existence" of the specific agreements between the Argentine Government and the economic 
operators, of which the Panel requested copies. (Pan el Reports, paras. 6.46, 6.64, and 6.164 (quoting 
Argentina's responses to Panel questions Nos. 63- 92, para. 20); see also paras. 6.155 and 6.165) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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   Article III:4 of GATT 1994, to the extent that Argentina requires 
domestic producers to increase local content and/or limit imports to an amount related to the volume or value of local products that they export. 
  … 
 Article XI:1 of the GATT 1994, because the measure prohibits or 
restricts the importation of goods.
386 
Case 1: "Renault Trucks tells Govern ment it will increase its exports"387 
5.58.  This press release, dated 7 February 2011, states that the Argentine Government concluded 
an agreement on the same date with Renault Tr ucks Argentina, whereby the latter undertook to 
reverse its trade deficit and increase its exports by US$47 million to achieve a trade balance of 
US$0.7 million. Renault also pledged to invest up to US$4 million, including a commitment to 
make investments in car parts manufacturers Dana and Tassarolli, allowing them to develop new products not only to supply Renault, but also to increase their own exports. According to the 
Minister of Industry, the investments by Renault would "reinforce local car parts manufacturers so 
that a large number of parts made here are produced and integrated into the vehicles manufactured in Argentina". This press release further states that Fate Argentina was to start 
supplying tyres, previously imported from Brazil, for Renault trucks sold in Argentina and Uruguay. 
In our view, these statements, read in conjunction  with the narrative of the EU Panel Request, 
show the imposition of the one-to-one, investment, and import substitution requirements on Renault Trucks Argentina. 
Case 2: "Boudou speaks of success of import substitution policy"
388 
5.59.  This press release, dated 18 March 2011, quotes Argentina's Minister of the Economy as 
saying that a commitment by Volkswagen to reduce its trade deficit "demonstrates the success of 
the policy of import substitution". The press rele ase explains that the Minister of the Economy, 
Minister of Industry, and the Secretary of Dome stic Trade approved and endorsed Volkswagen's 
business plan providing for an increase in export s to achieve a trade surplus of US$538 million. 
The reduction of Volkswagen's trade deficit and ac hievement of the goal to keep a trade surplus 
are said to "work on the basis of incorporating small and medium local suppliers in the auto part chain". Volkswagen's business plan is reported to have "a strong export bias" since the company promised to eliminate its US$816 million trade deficit and committed to achieving a surplus of 
US$538 million. The company also undertook to  meet the requirement imposed by the 
Argentine Government to achieve a one-to-one ratio within one year. In our view, these statements, read in conjunction with the narrative of the EU Panel Request, show the imposition of 
the import substitution and one-to-one requirements on Volkswagen. 
Case 3: "Porsche importer agrees to offs et imports with exports of wine and oil"
389 
5.60.  This press release, dated 30 March 2011, states that the Minister of Industry, Minister of the 
Economy, and the Secretary of Domestic Trade approved an agreement with the firm that imports 
Porsche vehicles into Argentina to balance its trade. This export plan would offset the firm's imports with exports of non-automotive products "linked with other activities that the group is developing in Argentina", such as wine and olive products. Argentina's vehicle importers and 
manufacturers are also said to be allowed to import the same amount as they export, and to have 
been given a year to achieve this one-to-one ratio. In our view, this press release, read together with the narrative of the EU Panel Request, de monstrates the imposition of the one-to-one 
requirement on Argentina's importer of Porsche vehicles. 
                                               
386 EU Panel Request, pp. 3-4. 
387 Listed as Item 2 of Annex III to the EU Panel Request; text subsequently submitted to the Panel as 
Exhibit JE-103. 
388 Listed as Item 3 of Annex III to the EU Panel Request; text subsequently submitted to the Panel as 
Exhibit JE-80. 
389 Listed as Item 4 of Annex III to the EU Panel Request; text subsequently submitted to the Panel as 
Exhibit JE-81. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Case 4: "Automaker ple dges to balance its trade"390 
5.61.  This press release, dated 6 April 2011, states that the Argentine Government and 
Mercedes Benz entered into an agreement on the same date for the latter to even out its trade 
balance by committing to increase its exports and substitute locally produced auto parts for 
imports. The press release also states that, according to the Minister of Industry, Argentina's 
vehicle importers and manufacturers would be able to import the same amount as they export, and were given one year within which to achieve this one-to-one ratio. Finally, the press release 
explains that Mercedes Benz would resume the production of trucks in Argentina by making an 
investment of US$53 million. In our view, these stat ements, read in conjunction with the narrative 
of the EU Panel Request, show the imposition of the import substitution, one-to-one, and investment requirements on Mercedes Benz. 
Case 5: "Peugeot agrees with the government to improve its trade balance"
391 
5.62.  This press release, dated 17 November 2011, states that PSA Peugeot-Citroën signed on the 
same date an agreement with the Argentine Government aimed at improving the company's trade 
balance from a deficit of US$290 million to a surp lus of US$85 million. This agreement between 
Argentina and Peugeot includes an undertaking for the latter not to transfer any dividends abroad. 
The press release also reports the launch of the new model Peugeot 308, which required a 
US$55 million investment, has local parts and components equivalent to 60% of its value, and has 
a local plant as its exclusive platform throughout the region. Peugeot is also said to be developing a new project for a completely new model with a total investment of US$110 million. In our view, these statements, read in conjunction with the na rrative of the EU Panel Request, demonstrate the 
imposition on Peugeot of the one-to-one, inve stment, and import substitution requirements. 
Case 6: "Five car producers have signed  agreements with the Government to 
contribute US$2.2 billion to the balance of trade"
392 
5.63.  This press release, dated 20 April 2011, reports that the Argentine Government signed 
agreements on the same date with Peugeot-Citroën and Centro Milano, the importer of Alfa Romeo, for these companies to increase their exports. These agreements follow those already 
concluded with Volkswagen, Mercedes Benz, and Por sche. The agreements are in the nature of an 
import-export programme to enable the two companie s to reverse their trade deficit. Specifically, 
the agreements will result in Peugeot increa sing its automobile exports by more than 
US$600 million and in Alfa Romeo's exports exc eeding US$11 million for the first time. The 
representatives of Alfa Romeo stated that the company would make a new investment of 
US$2.5 million to install a new biodiesel plant that would generate exports worth approximately US$11.5 million in 2012 and would create a trade surplus. In our view, this press release, read in 
conjunction with the narrative of the EU Panel Re quest, shows the imposition of the one-to-one 
requirement on Peugeot and Alfa Romeo.  
Case 7: "General Motors committed to evening out its trade in 2012"
393 
5.64.  This press release, dated 2 May 2011, states that the Argentine Government signed on the 
same date an agreement with General Motors Argentina, pursuant to which the latter undertook to even out its trade in 2012. First, General Motors committed to improve its trade balance by substituting domestic products for imports in  the amount of more than US$150 million, and 
continuing to work out local sourcing stra tegies with its Argentine suppliers. Second, 
General Motors undertook to invest US$154 million in order to increase the output of some of its vehicle models, increase its exports, generate 600 new jobs in Argentina, and develop local 
suppliers by continuing with its local inputs plan. Third, the press release reports that the 
agreement signed with General Motors is the sixth of those concluded with vehicle manufacturers. 
                                               
390 Listed as Item 5 of Annex III to the EU Panel Request; text subsequently submitted to the Panel as 
Exhibit JE-5. 
391 Listed as Item 14 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit JE-245. 
392 Listed as Item 6 of Annex III to the EU Panel Request; text subsequently submitted to the Panel as 
Exhibit JE-85. 
393 Listed as Item 7 of Annex III to the EU Panel Request; text subsequently submitted to the Panel as 
Exhibit EU-86. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  All these firms committed to increasing their investments and exports in response to the 
one-to-one requirement imposed by the Minister of  Industry and the Secretary of Domestic Trade 
at the beginning of 2011. In our view, it is eviden t from these statements, read together with the 
narrative of the EU Panel Request, that import substitution, investment, and one-to-one 
requirements were imposed on General Motors. 
Case 8: "Fiat, another car manufacturer to sign an undertaking with the government to 
balance its trade"394 
5.65.  This press release, dated 5 May 2011, states that the Argentine Government signed an 
agreement with Fiat Argentina to even out the company's trade balance. First, Fiat is said to have agreed to invest more than US$1.2 billion to produce a new car model and agricultural machinery. The launch of the new car model involves a US$813 million investment. Second, the Ministry of 
I n d u s t r y  i s  q u o t e d  a s  s a y i n g  t h a t  F i a t  i s  r e s p o n d i n g  t o  t h e  c o m m i t m e n t  r e q u i r e d  b y  t h e  
Argentine Government to even out the company's trade balance by significantly increasing its 
exports and maintaining its 2010 import levels by having local content in its new model, 
substituting imports by producing harvesters, tractors, and engines through Case New Holland, 
and increasing exports of trucks made by Iveco. Fiat's 2012 model is said to have 50% local content in Argentina. Third, Fiat undertook to export US$1.5 billion in 2010 and US$2 billion 
in 2012, resulting in replacing the previous year's deficit of US$500 million with a surplus of 
US$340 million the following year. In our view, this press release, read in conjunction with the narrative of the EU Panel Request, demonstrates the imposition of the investment, import substitution, and one-to-one requirements on Fiat. 
Case 9: "Ford will export more and import less"
395 
5.66.  This press release, dated 23 May 2011, details the agreement signed on the same date 
between the Argentine Government and Ford, in which the latter committed to exporting more and 
importing less in order to eliminate the trade deficit that it had in the previous year in the amount 
of US$250 million. Specifically, Ford undertook to in crease its exports by 70%, and not to increase 
imports by more than 30% to reverse its trade balance deficit. Further, according to the 
representatives of Ford, the company will achiev e a trade balance surplus of US$90 million as a 
result of, among other factors, the generation of  more added value through the local assembly of 
engines that have previously been imported in th e finished state. In our view, the press release, 
read in conjunction with the narrative of the EU  Panel Request, shows the imposition of the one-
to-one and import substitution requirements on Ford.  
Case 10: "Renault, Mitsubishi, Nissan and Vo lvo have also signed a plan to achieve 
a trade surplus in 2012"396 
5.67.  This press release, dated 5 August 2011, indicates that the Argentine Government signed 
agreements on the same date with four automoti ve companies, i.e. Renault Argentina, Alfacar 
(importer of Mitsubishi), Ditecar (importer of Volvo, Jaguar, and Land Rover), and Nissan. In these 
agreements, the companies committed to offsetting their imports in 2011 and reducing the deficits 
they had in 2010 to achieve a trade balance surplus in 2012. Renault undertook to inject capital and produce a new economy car model intended mainly for export. Nissan is reported to have also committed to inject capital and export soya meal, soya oil, and biodiesel through third companies, 
and to incorporate gradually manufactured products from regional economies to even out its trade 
balance. Mitsubishi is said to have committed to export animal feed, peanuts, and premium mineral water, while Ditecar is to export to Chile through third-company intermediaries. In our 
view, these statements in the press release, read  together with the narrative of the EU Panel 
Request, demonstrate the imposition of the one-to-one, investment, and import substitution requirements on Renault, Alfacar, Ditecar, and Nissan. 
                                               
394 Listed as Item 8 of Annex III to the EU Panel Request; text subsequently submitted to the Panel as 
Exhibit JE-88. 
395 Listed as Item 9 of Annex III to the EU Panel Request; text subsequently submitted to the Panel as 
Exhibit JE-95. 
396 Listed as Item 10 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit JE-90. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Case 11: "Ministry of Industry announces th at BMW will balance imports and exports in 
2012"397 
5.68.  This press release, dated 13 October 2011, states that the Argentine Government and BMW 
Group Argentina signed on the same date an import substitution plan whereby the latter 
committed to balance its exports and imports in 2012. BMW is also said to have undertaken to 
develop in Argentina automotive components for export, as well as leather upholstery for its cars, and milled rice. Thus, in our view, this press releas e, read in conjunction with the narrative of the 
EU Panel Request, demonstrates the imposition of the one-to-one requirement on BMW. 
Case 12: "Publishing companies agree to restore trade balance"
398 
5.69.  This press release, dated 31 October 2011, reports the signing of an agreement between 
the Argentine Government and the Cámara Argentina de Publicaciones, which consists of 
46 publishers. This agreement is said to provide th at each of these publishing companies will have 
to achieve a balance in their imports and export s. In our view, this press release, read in 
conjunction with the narrative of the EU Panel Re quest, shows the imposition of the one-to-one 
requirement on the publishing industry. 
Case 13: "Giorgi and Moreno sign agreement with booksellers to offset their imports"399 
5.70.  This press release, dated 11 November 2011, states that the Argentine Government 
concluded an agreement with representatives of  the Cámara Argentina del Libro, which is 
composed of 550 small and medium-sized enterprise s (SMEs) involved in printing, publishing, and 
bookselling. Under this agreement, the members of the Cámara Argentina del Libro undertook to even out their trade balances by the end of 2012 by offsetting imports with exports, and 
promoting domestic printing. In our view, this press release, read together with the narrative of 
the EU Panel Request, shows the imposition of  the one-to-one requirement on the printing, 
publishing, and bookselling industry. 
Case 14: "Scania tells the President it  will invest US$40 million in Argentina"
400 
5.71.  This press release, dated 21 November 2011, reports that Scania met with the 
Argentine President and the Minister of Industry on the same date and that Scania expressed its 
planned investment in the amount of US$40 million for its truck gearbox plant in Tucumán, 
Argentina, and its undertaking to capitalize its profits for 2010. According to the Ministry of Industry, Scania's commitments to capitalize it s profits in the amount of US$56.8 million and 
reinvest them are within the context of the Argentine Government's demand for auto 
manufacturers to even out their trade balances. Scania is reported to have also committed to 
increase its production capacity and exports, generate jobs, and develop and increase purchases from local suppliers, as well as reinvest its profits in Argentina. Through these and its 
US$40 million investment, Scania is to aim for a reversal of its trade balance and the achievement 
of a trade surplus of US$40 million in 2012. In our view, it is evident from these statements, read in conjunction with the narrative of the EU Panel Request, that the one-to-one and investment 
requirements were imposed on Scania.  
Case 15: "Radio: 'Pirelli to export an additional US$100 million in honey'"
401 
5.72.  This news article, dated 10 March 2012, reports an announcement by the Minister of 
Agriculture that Pirelli, which imports tyres valued at US$100 million, undertook to export an 
additional US$100 million worth of honey in order to be allowed to import US$110 million, or 10% 
                                               
397 Listed as Item 11 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit JE-92. 
398 Listed as Item 12 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit JE-129. 
399 Listed as Item 13 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit JE-133. 
400 Listed as Item 15 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit JE-101. 
401 Listed as Item 20 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit EU-364. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  more of its usual imports. This statement, in our view, read together with the narrative of the 
EU Panel Request, suffices to show the imposition of the one-to-one requirement on Pirelli. 
Case 16: "No more imports of ham from Spain and Italy"402 
5.73.  This news article, dated 9 May 2012, reports that the Secretary of Domestic Trade approved 
an agreement with pork meat producers, including the Argentine Pork Producers Association and 
the Argentine Council of Producers, limiting the importation into Argentina of finished ham products, including those from Spain and Italy. Pursuant to the agreement, the relevant 
companies would not import more than 80% of the amount of pork "pulp" and bacon they 
imported in 2011, and would not import finished pork products like Spanish ham so as to promote Argentinean ham. The member companies of these chambers also committed not to import more 
cow tripe, and instead to give priority to local tripe. Companies in the pork meat sector also 
committed to export the equivalent of what they import and to present a list of prices of their 
products. This news article, read in conjunction with the narrative of the EU Panel Request, demonstrates the imposition of the import re duction and one-to-one requirements on pork 
producers. 
C a s e  1 7 :  " G o  p r a y  t o  ' S a i n t  M o r e n o ' :  i n  an unprecedented drive, Moreno blocks the 
entry of Bibles into Argentina"
403 
5.74.  This news article, dated 22 November 2011, reports that around 100,000 bibles and other 
religious materials were held up in Argentine customs by the Secretary of Domestic Trade. The Argentine Government is said to have acknowledged setting up a barrier to limit entry of literature 
produced abroad in order to discourage imports and promote domestic printing. Subsequently, the 
Argentine Government concluded an agreement with the Cámara Argentina de Publicaciones and 
the Cámara Argentina del Libro, which undertook to  even out their trade balances. By the end of 
2012, the companies in the publishing sector are required to export local products to be able to 
import materials from abroad. In our view, this news article, read in conjunction with the narrative 
of the EU Panel Request, shows the imposition of  the one-to-one requirement on companies in the 
publishing sector. 
Case 18: "More controls over the entry of medicines and demands to even out the trade 
balance"
404 
5.75.  This news article, dated 12 October 2012, reports the differing lengths of time it takes to 
obtain authorization for the importation of medicines into Argentina depending on whether or not 
the laboratory seeking to import has achieved a trade balance. The time period to obtain this 
authorization is usually 48 hours. However, if th e laboratory imports more than it exports, then 
this time period can extend up to 60 days. If the laboratory's trade is in balance or it seeks to 
import raw materials for processing in Argentin a, then the 48-hour period is observed. The 
Secretariat of Domestic Trade requires laboratories to submit a balance sheet every six months, and it is on this basis that the agency determin es the procedures to be followed for importing 
medicines. The Ministry of Industry and the Secretariat of Domestic Trade are said to impose these 
measures in order to discourage the importation of finished products. In our view, it is evident from this news article, read together with the narrative of the EU Panel Request, that the one-to-one requirement is imposed on laboratories and/or producers of medicines. 
Case 19: "Airoldi to start up a biod iesel plant so it can go on importing"
405 
5.76.  This news article, dated 7 March 2012, discusses how Airoldi/Air Computers, whose 
business relies on the importation of parts for assembling information technology devices, decided 
to accelerate the bringing into operation of its biodiesel, crushing, and refining plants in Alvear, 
                                               
402 Listed as Item 23 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit JE-189. 
403 Listed as Item 16 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit EU-375. 
404 Listed as Item 18 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit EU-379. 
405 Listed as Item 19 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit EU-124. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Argentina, so as to balance its trade. The article reports that Air Computers was forced to seek 
alternatives, and thus decided to bring these plants into operation in order to comply with the requirement of the Secretariat of Domestic Trade to  keep foreign purchases on an even level with 
shipments abroad. In order to offset its import s while awaiting the oper ation of these plants, 
Airoldi/Air Computers formed alliances with companies that produce food for humans and animals 
from the soya paste that it produces, with the intention of exporting these food products. This 
news article, read in conjunction with the narrati ve of the EU Panel Request, shows the imposition 
of the one-to-one requirement on Airoldi/Air Computers. 
Case 20: "Zanella plans to restor e its balance by exporting food"
406 
5.77.  This news article, dated 5 April 2012, states that Zanella, which manufactures motorcycles 
and runs motorcycle and spare parts distribution centres, made an agreement with the 
Argentine Government to even out the company's trade balance. Similar to what has been done by 
various companies in different sectors, Zanella also made a commitment to the Ministry of Industry that it would offset the value of its impo rts with the export of value-added products. It is 
reported that Zanella plans to comply with this  agreement by exporting food and wine. In our 
view, this news article, read in conjunction with the narrative of the EU Panel Request, demonstrates the imposition of the one-to-one requirement on Zanella.  
Case 21: "More multinationals form partnershi ps with wineries to be able to import"
407 
5.78.  This news article, dated 8 July 2012, reports that, for importers obliged to sign agreements 
to offset their imports with exports in equal propor tions, this could translate to promising deals for 
Argentine wineries, which are the most sought-after partners of multinational companies operating 
in Argentina. Thus, new partnership agreements, which have been approved by the Secretary of 
Domestic Trade, have been concluded between Sa msung and La Rural, and Indesit and Norton in 
order to offset, in equal proportions, the imports of Samsung and Indesit with exports of wine. 
La Rural and Norton are wineries in Argentina. This news article, in our view, read in conjunction 
with the narrative of the EU Panel Request, shows the imposition of the one-to-one requirement on 
Samsung and Indesit. 
Case 22: "SMEs on wheels"408 
5.79.  This news article, dated 26 July 2012, reports that the Argentine Government held a 
meeting with tyre firm Michelin and a group of more than 100 SMEs to promote the export of 
various domestic products to Michelin's subsidiaries by organizing a trade mission to France. This 
is said to be a consequence of the requirement imposed by the Secretary of Domestic Trade to 
offset imports with exports. The Secretary of Domestic Trade is also reported to have sent a message to importing businessmen that they must contribute to the generation of foreign 
exchange, whether through association with domestic exporters, capital injections, or import 
substitution. Since Michelin does business in tyres, tourist guides, and various articles, including footwear, textiles, clothing and other accessories, the participants in the meeting ranged from 
domestic suppliers of raw materials for tyres and auto-part companies to toy and clothing 
manufacturers. Michelin is said to intend to preselect the Argentine suppliers that show promise of selling directly to its parent company. These st atements, in our view, read together with the 
narrative of the EU Panel Request, demonstrate that Michelin committed to undertaking the 
one-to-one and import substitution requirements.  
Case 23: "Zegna helps to export wool and reopens"
409 
5.80.  This news article, dated 2 August 2012, reveals that Ermenegildo Zegna closed its flagship 
store in Buenos Aires for two months because of a shortage of merchandise. It was able to reopen 
                                               
406 Listed as Item 21 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit EU-401. 
407 Listed as Item 22 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit EU-121. 
408 Listed as Item 24 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit EU-403. 
409 Listed as Item 25 of Annex III to the EU Panel Requ est; text subsequently submitted to the Panel as 
Exhibit JE-158. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  its store after being authorized to import its garments again subsequent to its submission to the 
Argentine Government of an export project. The company concluded an agreement with an 
Argentine wool producer to facilitate its exports to companies in Switzerland and Italy, and thereby satisfy the Argentine Government's request to offset its imports with exports in order for 
Ermenegildo Zegna to obtain a licence to start importing again. In our view, this news article, read 
in conjunction with the narrative of the EU Pane l Request, demonstrates the imposition of the 
one-to-one requirement on Ermenegildo Zegna. 
Summary of the analysis of the 23 specific instances of application 
5.81.  Based on the above observations, we consider the 23 specific instances of application of the 
TRRs that are the object of the European Union's claims to be discernible from the press releases and news articles. The contents of each press release and news article listed in Annex III provide 
the following information: (i) the involvement of the Argentine Government; (ii) the particular 
economic operator, sector, or industry concerned; and (iii) the specific TRR(s) allegedly imposed. The press releases and news articles, each of wh ich consists of only one or two pages, read 
together with the narrative of the EU Panel Request, present these key details with sufficient 
clarity so as to enable a reader to discern the specific measures at issue. It follows that, unlike the Panel, we consider that the EU Panel Request did identify the specific measures at issue in this 
dispute consistently with the requirements of Article 6.2 of the DSU. 
5.82.   Moreover, we are satisfied that the EU  Panel Request complies with the requirement of 
Article 6.2 of the DSU "to present the problem clearly" by plainly connecting
410 the 23 specific 
instances of application of the TRRs with its legal claims, i.e. Articles III:4 and XI:1 of the 
GATT 1994. We recall that, as set out above, the EU Panel Request includes the following 
narrative: 
The European Union considers that these requirements, … when viewed as separate 
measures in each of the instances listed in Annex III, … are inconsistent with the 
following 
 Article III:4 of GATT 1994, to the extent that Argentina requires 
domestic producers to increase local content and/or limit imports to an 
amount related to the volume or value of local products that they export. 
 … 
 Article XI:1 of the GATT 1994, because the measure prohibits or 
restricts the importation of goods.
411 
5.83.  While the EU Panel Request identifies the 23 specific instances as separate measures and 
indicates specific provisions of the GATT 1994 as the legal basis, we do not find it difficult to make 
a plain connection between the measures at issue and the claims in the light of the narrative provided in the EU Panel Request. In particular, the above narrative in the EU Panel Request 
provides context to the measures at issue and legal claims in a way that enables a reader to 
ascertain the connection between the two. The EU Panel Request identifies, as TRRs, requirements 
to export a certain value of goods related to the value of imports, to limit the volume of imports, to refrain from repatriating funds abroad, to make  or increase investments in Argentina, or to 
incorporate local content into domestically produced goods. The information found on the websites 
listed in Annex III to the EU Panel Request identifies, inter alia , the particular TRR(s) imposed on 
specific economic operators. Furthermore, the narrative of the EU Panel Request states that the 
specific instances of application of the TRRs are inconsistent with Article III:4 of the GATT 1994 to 
the extent that Argentina requires domestic producers to increase local content and/or limit imports to the value of exports, and with Article XI :1 to the extent that the measures prohibit or 
restrict importation. Therefore, the EU Panel Request narrative is sufficiently clear to enable a 
                                               
410 Appellate Body Reports, US – Oil Country Tubular Goods Sunset Reviews , para. 162; US – Gambling , 
para. 141; China – Raw Materials , para. 220; US – Countervailing and Anti-Dumping Measures (China) , 
para. 4.8. 
411 EU Panel Request, p. 4. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  reader to ascertain which of the specific instances of application of the TRRs the European Union 
alleged to be inconsistent with Article III:4 and/or Article XI:1 of the GATT 1994. 
5.84.  Based on the above reasons, we find that the EU Panel Request identifies as measures at 
issue the 23 specific instances of application of the TRRs in a manner that is sufficiently precise so 
as to conform to the requirements of Article 6.2 of the DSU. 
5.1.2.5  Whether the 23 measures ex panded the scope of the dispute 
5.85.  We now turn to Argentina's argument that the European Union's inclusion of 
these 23 specific instances of application of the TRRs in its panel request impermissibly expanded 
the scope of the dispute, as these 23 specific inst ances were not identified in the European Union's 
request for consultations. In Argentina's view, this would have been an independent basis for the Panel to conclude that these 23 specific instances are outside its terms of reference.
412  
5.86.  In its consultations request, the European  Union stated that Argentina "often requires" 
importers to undertake "certain commitments".413 Thereafter, in its panel request, the 
European Union identified as specific measures at issue "Restrictive Trade Related Requirements" 
that reflect the same "commitments" it previously referred to in its consultations request.414 The 
EU Panel Request alleges that these requirements, "when viewed as an overarching measure … as well as when viewed as separate measures in  each of the instances listed in Annex III" are 
inconsistent with Argentina's WTO obligations.
415 Annex III to the EU Panel Request then lists 
"Instances of restrictive trade-related requirements affecting products originating in the European Union", providing the titles of 29 press releases and news articles, the dates on which they were published, and the websites where they may be accessed. 
5.87.  We recall our previous discussion that, base d on the language and functions of Articles 4.4 
and 6.2 of the DSU, greater specificity is required  in identifying the measure at issue in a panel 
request than in a consultations request. Specifica lly, Article 4.4 requires th e identification of the 
"measure at issue", while Article 6.2 requires the identification of the " specific measure at 
issue".
416 Thus, there is no need for a " precise and exact identity " between the consultations 
request and the panel request417, provided that the complainant do es not expand the scope of the 
dispute418 or change its essence.419 
5.88.  In assessing whether the European Union's identification in its panel request of 
the 23 specific instances of application of the TRRs impermissibly expanded the scope of the 
dispute, the Appellate Body's ruling in US – Continued Zeroing  provides useful guidance. In that 
dispute, the European Communities' panel requ est identified 14 anti-dumping duty review 
determinations that were not specifically identified by name or case number in its consultations request. The United States argued that these 14  anti-dumping duty review determinations fell 
outside the panel's terms of reference because the consultations request did not refer to them.
420 
The Appellate Body observed that, "in addition  to the zeroing methodology, the European 
Communities challenge[d] the ' outcome of the administrative reviews', the 'imposition of definitive 
duties ', and 'the continuation of the anti-dumping [ duty]' resulting from the proceedings listed in 
the annexes" to the request for consultations.421 The Appellate Body ruled that "the measures 
subject to the European Communities' challenge en compass[ed] the anti-dumping duties resulting 
from the proceedings identified in the consultations request, in which the zeroing methodology was 
allegedly used".422 Further, the Appellate Body noted that "the 14 additional measures identified in 
the panel request pertain[ed] to the same anti-dumping duties that [were] included in the consultations request". Since the 14 measures "relate[d] to the same duties identified in the 
                                               
412 Argentina's appellee's  submission, para. 13. 
413 European Union's request for consultations, p. 1. 
414 EU Panel Request, p. 3. 
415 EU Panel Request, p. 4. 
416 Emphasis added. 
417 Appellate Body Report, Brazil – Aircraft , para. 132. (emphasis original) 
418 Appellate Body Report, US – Upland Cotton , para. 293. 
419 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paras. 137 and 138. 
420 Appellate Body Report, US – Continued Zeroing , para. 223. (fn omitted) 
421 Appellate Body Report, US – Continued Zeroing , para. 226. (emphasis original) 
422 Appellate Body Report, US – Continued Zeroing , para. 226. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  consultations request"423, the Appellate Body held that they were within the panel's terms of 
reference.424  
5.89.  As explained in the previous subsection of these Reports425, the European Union's 
consultations request enumerates five "commitments" that Argentina "often requires" importers of 
goods to undertake. The instances listed by the European Union in Annex III to its panel request, 
in turn, appear to be specific instances of application of these "commitments". Thus, the language of the European Union's consultations request encompasses the specific instances of application 
identified in the EU Panel Request. Alternativel y, these specific instances could reasonably be 
viewed as having evolved from these "commitments". Consequently, the identification of these 23 measures in the EU Panel Request did not amount  to an expansion in the scope or a change in 
the essence of the dispute, but may rather be considered as a permissible refinement or 
reformulation of the complaint following the consultations process. Thus, we do not find any merit 
in Argentina's contention that the specific instances of application of the TRRs identified in Annex III to the EU Panel Request impermissibly expanded the scope of the dispute or changed its 
essence and were, therefore, outside the Panel's terms of reference. 
5.1.2.6  The European Union's conditional appeal 5.90.  The European Union makes a conditional appeal, stating that its request for completion of 
the legal analysis depends on us reversing or otherwise declaring moot and with no legal effect the 
Panel's findings that: (i) the TRRs measure exists; and (ii) the TRRs measure is inconsistent with Articles XI:1 and III:4 of the GATT 1994. For re asons explained in the succeeding sections, we 
hold that the triggering conditions for the European Union's conditional request for the completion 
of the analysis are not met. Therefore, we refrain from completing the legal analysis with respect 
to the consistency or inconsistency of the 23 specific instances of application of the TRRs with Article XI:1 and/or Article III:4 of the GATT 1994. 
5.1.2.7  Overall conclusion on the European Union's other appeal 
5.91.  For all of the reasons set out above, we find that the Panel erred in failing to consider the 
information found in the sources listed in Annex III to the EU Panel Request in assessing whether 
the EU Panel Request satisfied the requirements of Article 6.2 of the DSU with respect to the 
23 specific instances of application of the TRRs. In consequence, we reverse the Panel's finding, in 
paragraph 7.1.c of the EU Panel Report, that these specific instances "were not precisely identified 
in the European Union's panel request as measures at issue" and that, "accordingly, those 
23 measures do not constitute 'measures at issue' in the present dispute".426 Based on our own 
reading of the contents of the relevant press releases and news articles listed in Annex III to the EU Panel Request, when read in conjunction with th e narrative provided in the text of the EU Panel 
Request itself, we find that the 23 instances of application of the TRRs were identified as "specific 
measures at issue" in a manner that is sufficiently precise as to conform to the requirements of 
Article 6.2 of the DSU, and were thus within the Panel's terms of reference. Finally, we find it 
unnecessary to rule on the European Union's request for completion of the legal analysis, as the 
conditions on which its request is premised are not met. 
5.2  Identification of the single unwritten TRRs measure 5.2.1  Introduction 
5.92.  We now turn to Argentina's appeal of the Panel's findings that the TRRs measure is 
inconsistent with Articles XI:1 and III:4 of the GATT 1994.
427 Argentina claims that the Panel erred 
in finding that the complainants had established that a TRRs measure exists and that it is 
inconsistent with Articles XI:1 and III:4 of the GATT 1994. In particular, Argentina claims that the 
Panel failed to apply the correct legal standard in ascertaining the existence of the alleged TRRs measure in its evaluation of the claims by the three complainants against the TRRs measure that 
the Panel assessed jointly ("joint claims"), and that the Panel acted inconsistently with Article 11 
                                               
423 Appellate Body Report, US – Continued Zeroing , para. 228. 
424 Appellate Body Report, US – Continued Zeroing , para. 236. 
425 See e.g. para. 5.21 of these Reports. 
426 See also Second Preliminary Ruling, para. 5.1.b. 
427 The Panel's explanation of the TRRs measure is summarized above in section 4.1 of these Reports. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  of the DSU in its evaluation of Japan's separate "as such" claims against the same alleged 
measure. Argentina, therefore, requests us to reverse the Panel's conclusions that the TRRs measure operates as a single measure and that it is inconsistent with Articles XI:1 and III:4 of the GATT 1994, as well as the Panel's finding that this measure is "as such" inconsistent with 
Articles XI:1 and III:4 of the GATT 1994. 
5.93.  We address, first, Argentina's claim that the Panel applied the incorrect legal standard in 
evaluating the complainants' joint claims against the TRRs measure. Second, we address 
Argentina's claim that the Panel acted inconsistently with Article 11 of the DSU in its evaluation of 
Japan's "as such" claims against that measure. 
5.2.2  The joint claims against the TRRs measure 5.94.  Argentina argues that the Panel erred in failing to apply the correct legal standard in 
evaluating whether the complainants had proven  the existence of a single unwritten TRRs 
measure. For Argentina, it was evident that the complainants had, in effect, raised "as such" claims against the TRRs measure. Thus, the Panel should have applied the legal standard 
articulated by the Appellate Body in US – Zeroing (EC)  in assessing these joint claims, and 
determined whether the measure is attributable to Argentina, as well as its precise content, and its general and prospective application. Instead, acco rding to Argentina, having wrongly accepted the 
complainants' own characterization of the joint cl aims as not being "as such", the Panel presumed 
the existence of the TRRs measure and proceeded to  apply an erroneous legal standard. This legal 
standard was the one articulated by the panel in US – COOL  to ascertain whether multiple 
measures can be assessed for WTO-consistency as a single measure, rather than as individual 
measures.
428 
5.95.  On appeal, the three complainants maintain that their claims, which the Panel addressed 
jointly, were not "as such" claims and that, therefore, the Panel did not err in not applying the 
legal standard formulated by the Appellate Body in US – Zeroing (EC) .429 
5.96.  As a preliminary matter, we note that none of the three complainants characterized its 
claims against the TRRs measure as being "as such" or "as applied" in its panel request. Moreover, 
both the European Union and the United States maintained throughout the proceedings before the 
Panel that their claims against the TRRs measure were not "as such" claims.430 In the course of the 
Panel proceedings, Japan clarified that it was seeking findings from the Panel against the TRRs measure "as such", "as applied", and "as an unwritten practice or policy, as confirmed by the 
systematic application of the measure".
431  
5.97.  The Panel divided its evaluation of the claims raised against the TRRs measure into two 
parts. In the first part of its analysis, the Panel decided to address the claims by the 
European Union and the United States together with Japan's claims against the TRRs measure "as 
an unwritten practice or policy, as confirmed by the systematic application of the measure".432 
Having grouped these claims together for the purpose of its analysis, the Panel assessed them 
separately from Japan's "as such" claims against the same measure. In subsequently addressing 
Japan's "as such" claims, the Panel referred to the claims by the three complainants that it had addressed earlier as the "joint claims". The Pane l recognized that the joint claims were brought 
against an unwritten measure, but it did not affirm atively characterize the nature of the challenge 
that it considered these claims represented. The Panel did not treat the joint claims as falling in 
the category of "as such" claims challenging a rule or norm of general and prospective application, or in the category of "as applied" claims, challenging instances of specific application of the TRRs 
measure. The Panel reasoned that, because these claims were not "as such" claims, it would need 
to determine whether the measure is attributable to Argentina and its exact content, but not 
                                               
428 Argentina's appellant's subm ission, paras. 112 and 113. 
429 European Union's appellee's submission, para. 122;  United States' appellee's submission, para. 133; 
Japan's appellee's submission, para. 45. 
430 The European Union made separate claims against 23 instances of application of the TRRs measure, 
which the Panel considered to be outside its terms of reference. 
431 Panel Reports, para. 6.136 (referring to Japan's second written submission to the Panel, para. 20). 
432 Panel Reports, para. 6.136 (referring to Japan's second written submission to the Panel, para. 20). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  whether the measure has general and prospective application.433 Moreover, because the 
complainants had challenged the TRRs as a single measure, the Panel stated that it would determine whether the individual TRRs applied and operated in a combined manner and as part of a single measure.
434 
5.98.  The Panel then explained that, in respect of  the joint claims, it would establish: (i) whether 
the five TRRs imposed by Argentina apply and operate as part of a single measure; (ii) the content of the single measure; and (iii) whether the measure is attributable to Argentina. The Panel stated 
that, in its separate assessment of Japan's "as such" claims, it would also determine whether the 
TRRs measure has general and prospective application.
435 
5.2.2.1  Ascertaining the exis tence of an unwritten measure 
5.99.  In raising its claim on appeal that the Panel applied the wrong legal standard, Argentina 
does not refer to any provision in the DSU or in other covered agreements, but, rather, to the legal 
standard articulated by the Appellate Body in US – Zeroing (EC)  for the assessment of unwritten 
measures of general and prospective application.436 In US – Zeroing (EC) , the Appellate Body 
considered whether the "zeroing methodology" constituted a "measure" within the meaning of 
Article 3.3 of the DSU that could be challenged in WTO dispute settlement.437 Thus, we understand 
that, in invoking the ruling of the Appellate Body in US – Zeroing (EC), Argentina is relying on the 
Appellate Body's interpretation of the concept of  "measure" in Article 3.3 of the DSU in that 
dispute. 
5.100.  We recall that Article 3.3 of the DSU states that the dispute settlement system addresses 
"situations in which a Member considers that any benefits accruing to it directly or indirectly under 
the covered agreements are being impaired by measures  taken by another Member".438 In  
US – Corrosion-Resistant Steel Sunset Review , the Appellate Body considered that this phrase in 
Article 3.3 of the DSU "identifies the relevant  nexus, for purposes of dispute settlement 
proceedings, between the 'measure' and a 'Member'".439 In that dispute, the Appellate Body 
further noted that, "[i]n principle, any act or omission attributable to a WTO Member can be a measure of that Member for purposes of dispute settlement proceedings" and that "[t]he acts or 
omissions that are so attributable are, in the usual case, the acts or omissions of the organs of the 
state, including those of the executive branch."
440 
5.101.  It is well established that instruments of a Member containing rules or norms can be 
challenged "as such" in WTO dispute settlement, independently of whether or how those rules or 
norms are applied in particular instances.441 In US – Corrosion-Resistant Steel Sunset Review , the 
Appellate Body explained that allowing "as such" claims against measures embodying rules or norms serves the purpose of preventing future disp utes by allowing the root of WTO-inconsistent 
behaviour to be eliminated, thus avoiding a multiplicity of litigation against instances of application 
of measures.
442 
5.102.  However, in US – Continued Zeroing , the Appellate Body considered that the distinction 
between "as such" and "as applied" claims neither governs the definition of a measure for 
purposes of WTO dispute settlement, nor defines exhaustively the types of measures that are 
susceptible to challenge. Rather, this distinction was developed in the jurisprudence as an analytical tool to facilitate the understanding of the nature of a measure at issue. A measure need 
                                               
433 Panel Reports, paras. 6.42 and 6.220. Nonetheless, as we consider further below, the Panel found, in 
addressing Japan's "as such" claims in a subsequent sect ion of its Reports, that the TRRs measure has general 
and prospective application. 
434 Panel Reports, para. 6.219. 
435 Panel Reports, paras. 6.42, 6.219, and 6.220. 
436 Argentina's appellant's submission, para. 64. 
437 Appellate Body Report, US – Zeroing (EC) , para. 187. 
438 Emphasis added. 
439 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 81. 
440 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 81. (fns omitted) This, 
however, does not exclude that the acts or omissions of regional or local government s, or even the actions of 
private entities, could be attributed to a Member in particul ar circumstances.  
441 Indeed, the case law articulating and applying the practice of allowing meas ures to be challenged 
"as such" forms part of the GATT acquis. (Appellate Body Report, US – 1916 Act , para. 61) 
442 Appellate Body Report, US – Corrosion-Resistant  Steel Sunset Review , para. 82. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  not fit squarely within one of these two categories, that is, either as a rule or norm of general and 
prospective application, or as an individual application of a rule or norm, in order to be susceptible to challenge in WTO dispute settlement.
443 
5.103.  We observe that the distinction between "as such" and "as applied" claims is typically 
employed in conjunction with claims against norms or rules of general and prospective application, 
such as those contained in legislation. Legislation prescribing such rules or norms can be challenged "as such". Alternatively, or additional ly, a complainant may raise an "as applied" claim 
against one or more instances of application of the same legislation. The same, however, may not 
be true for other types of "measures" that are also attributable to a Member, and can thus be challenged in WTO dispute settlement. Rules and norms of general and prospective application are only one category of "measures" that can be ch allenged in WTO dispute settlement, which, as 
explained above, include any act or omission that is attributable to a Member.  
5.104.  In US – Zeroing (EC) , the Appellate Body considered a challenge against the "zeroing 
methodology" as an unwritten "'rule or norm ' that constitutes a measure of general and 
prospective application".
444 The Appellate Body stated that, when bringing an "as such" challenge 
against a "rule or norm", a complaining party must clearly establish that the alleged "rule or norm" is attributable to the responding Member, its precise content, and that it has general and 
prospective application.
445 We observe that, in every WTO dispute, a complainant must establish 
that the measure it challenges is attributable to the respondent, as well as the precise content of that challenged measure, to the extent that such content is the object of the claims raised. In  
US – Zeroing (EC) , the additional features of general and prospective application were relevant to 
the type of measure identified by the complainant, that is, the zeroing methodology as a rule or 
norm. Proving the existence of other measures that are also challengeable in WTO dispute 
settlement may require a complainant to demonstrate, in addition to attribution and precise 
content, other elements, depending on the particular characteristics or nature of the measure 
being challenged. 
5.105.  In another dispute related to zeroing, the Appellate Body considered that the measure at 
issue was neither the zeroing methodology as a rule or norm of general and prospective 
application, nor the discrete applications of the zeroing methodology in particular determinations.
446 Rather, the Appellate Body considered that the measure at issue was ongoing 
conduct that consisted of the continued use of the zeroing methodology in successive proceedings 
by which duties in each of 18 cases were maintained.447 Therefore, in that dispute, establishing the 
measure at issue did not require evidence that it  had general and prospective application, but, 
rather, evidence of the use of the zeroing methodol ogy, as ongoing conduct, with respect to duties 
resulting from each of the 18 anti -dumping duty orders at issue. 
5.106.  In EC and certain member States – Large Civil Aircraft , the Appellate Body considered a 
challenge against another type of measure that did no t fit into the category of "rule or norm" or of 
"application" thereof. Specifically, the Appellate Body considered a challenge by the United States 
against a subsidy programme not as a rule or norm of general and prospective application and distinct from the individual grants provided under the programme.
448 While the Appellate Body 
ultimately considered that the measure challenged in that dispute fell outside the panel's terms of 
                                               
443 Appellate Body Report, US – Continued Zeroing , para. 179. 
444 Appellate Body Report, US – Zeroing (EC) , para. 198. 
445 Appellate Body Report, US – Zeroing (EC) , para. 198. 
446 Appellate Body Report, US – Continued Zeroing , para. 181. 
447 Appellate Body Report, US – Continued Zeroing , para. 181. 
448 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 794. In that 
dispute, the United States claimed that the "systematic and coordinated" provision of "launch aid" or "member 
State financing" (LA/MSF) by France, Germany, Spain, and the United Kingdom for the development of various 
models of Airbus large civil aircraft  demonstrated the existence of an unw ritten LA/MSF "Programme", distinct 
from the individual grants of LA/MSF, which constituted a specific subsidy within the meaning of Articles 1 and 2 of the Agreement on Subsidies and Countervail ing Measures (SCM Agreement). (Ibid., paras. 778 
and 780) The United States  did not challenge the unwritten LA/MSF Programme as a rule or norm of general 
and prospective application or an appl ication thereof, but as "a concerted and coherent approach – that is, a 
'program' or 'ongoing conduct' – designed to contribute to the long-term competitiveness of Airbus" and as "a 
repeated course of action by responding Members". (Ibid., para. 793 (quoting United States' other appellant's 
submission, paras. 70 and 71)) The Appellate Body found , however, that the alleged LA/MSF Programme was 
not within the Panel's terms of reference because it was not identified in the request for the establishment of a panel, as required by Article 6.2 of the DSU. (Ibid., para. 795) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  reference, it recalled its ruling in US – Corrosion-Resistant Steel Sunset Review  that, "[i]n 
principle, any act or omission attributable to a WTO Member can be a measure of that Member for purposes of dispute settlement proceedings", and noted that the scope of measures that can be 
challenged in WTO dispute settlement is broad. As a general proposition, the Appellate Body did 
not exclude the possibility that "concerted action or practice" could be susceptible to challenge in 
WTO dispute settlement, and considered that a co mplainant would not necessarily be required to 
demonstrate the existence of a rule or norm of general and prospective application in order to 
show that such a measure exists.
449 
5.107.  In the light of the above, we consider  that the notion of measure of general and 
prospective application as reflected in the finding of the Appellate Body in US – Zeroing (EC)  
cannot be considered as setting forth a general legal standard for proving the existence of any 
unwritten measure that is challenged in WTO dispute settlement. Rather, in US – Zeroing (EC) , the 
Appellate Body set out certain criteria that should assist panels in determining whether a complainant has proven the existence of a measure consisting of a rule or norm of general and 
prospective application. When an unwritten measure that is not a rule or norm is challenged in 
WTO dispute settlement, a complainant need not demonstrate its existence based on the same 
criteria that apply when rules or norms of general and prospective application are challenged. For 
example, in US – Continued Zeroing , the Appellate Body saw "no reason to exclude ongoing 
conduct that consists of the use of the zero ing methodology from challenge in WTO dispute 
settlement".
450 
5.108.  In any event, the constituent elements that must be substantiated with evidence and 
arguments in order to prove the existence of a measure challenged will be informed by how such 
measure is described or characterized by the complainant. Depending on the characteristics of the measure challenged, other elements in addition to attribution to a WTO Member and precise 
content may need to be substantiated to prove its existence. For instance, a complainant 
challenging a single measure composed of severa l different instruments will normally need to 
provide evidence of how the different components operate together as part of a single measure 
and how a single measure exists as distinct from its components.
451 A complainant that is 
challenging a measure characterized as "ongoing conduct" would need to provide evidence of its repeated application, and of the likelihood that such conduct will continue.
452 
5.109.  As noted above, the distinction between "as such" and "as applied" claims does not govern 
the definition of the measures that can be ch allenged in WTO dispute settlement. We also 
emphasize that the distinction between rules or norms of general and prospective application and their individual applications does not define exha ustively the types of measure that are subject to 
WTO dispute settlement. These distinctions are not always useful or appropriate to define the 
elements that must be substantiated for purposes of proving the existence and nature of a measure at issue. In this respect, we recall th at the "measures" that may be the object of 
WTO dispute settlement extend to any act or omission that is attributable to a WTO Member. This 
broad concept of measures is not limited merely to rules or norms of general and prospective application and their individual applications. 
5.110.  A complainant seeking to prove the existence of an unwritten measure is not required to 
categorize its challenge as either "as such" or "as applied". When tasked with assessing a 
challenge against an unwritten measure, a panel is also not always required to apply rigid legal standards or criteria that are based on the "as such" or the "as applied" nature of the challenge. 
Rather, the specific measure challenged and how it is described or characterized by a complainant 
will determine the kind of evidence a complainant is required to submit and the elements that it 
must prove in order to establish the existence of the measure challenged. A complainant seeking 
                                               
449 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 794. 
450 Appellate Body Report, US – Continued Zeroing , para. 181. 
451 The Panel referred to the panel in US – COOL , which, in assessing wh ether to examine certain 
instruments as one single measure or individual sepa rate measures, summarized the main factors considered 
by previous panels and the Appellate Body in relation to this question as follows: 
(i) the manner in which the complainant presented its claim(s) in respect of the concerned instruments; (ii) the respondent's position; and (iii) the legal status of the requirements or instrument(s), including the operation of, and the relationship between, the requirements or 
instruments, namely whether a certain requirement or instrument has autonomous status. 
(Panel Reports, para. 6.144 (quoting Panel Report, US – COOL , para. 7.50)) 
452 Appellate Body Report, US – Continued Zeroing , para. 191. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  to prove the existence of an unwritten measure will invariably be required to prove the attribution 
of that measure to a Member and its precise content. Depending on the specific measure challenged and how it is described or characterized by a complainant, however, other elements may need to be proven. 
5.111.  In the light of the above, we do not consider, as Argentina argues, that the Panel 
committed an error simply because it did not apply the criteria formulated by the Appellate Body in US – Zeroing (EC)  for purposes of proving the existence of an unwritten measure that is 
challenged "as such" in WTO dispute settlement. Whether the Panel committed an error in 
ascertaining the existence of the TRRs measure should be assessed on the basis of whether the 
complainants identified and substantiated the re levant constituent elements of the type of 
measure they were challenging. 
5.2.2.2  The complainants' characte rization of the measure at issue 
5.112.  Bearing in mind that the elements a panel needs to review in ascertaining the existence of 
an unwritten measure will depend on the specific measure challenged and how it is described and 
characterized by the complainant, rather than on the type of challenge (i.e. "as such" or 
"as applied"), we now turn to consider how th e complainants characterized the TRRs measure 
before the Panel. Thereafter, we consider how th e Panel assessed the constituent elements of the 
measure at issue in order to evaluate whether such a measure exists. 
5.113.  The European Union considered that the TRRs "are not isolated cases, but an overarching 
measure applied to a wide range of situations, [which] has become the 'rule' for companies doing business in Argentina" and that "[s]uch a 'rule' will apply or will likely apply in the future in 
Argentina, insofar as Argentina continues pursuing its trade balancing and import substitution 
objectives."
453 According to the European Union, the impo sition of TRRs on economic operators "is 
part of a systemic approach adopted by Argentina to prohibit or restrict the importation of 
products and/or the use of imported products in Argentina with a view to achieving its trade 
balancing and import substitution objectives".454 
5.114.  Japan considered that the TRRs measure "is not merely five independent requirements", 
but rather "a comprehensive and general measure and consistent practice that restricts imports by 
imposing a practical threshold on importers an d limits competitive opportunities of imports 
vis-à-vis the situation in the absence of the [TRRs]."455 According to Japan, instances of the 
application of the TRRs "are not one-off instances of WTO-inconsistent action, but rather instances 
of systematic application of a broader measure that applies both generally and prospectively".456 
Moreover, Japan maintains that the TRRs measure is "the product of a subset of Argentina's economic policies and one of the instruments that Argentina has been using to pursue such 
policies, but [it] is not identical to them".
457 
5.115.  The United States described the TRRs me asure as an "extant decision" by high-level 
Argentine officials "to require commitments of importers to export a certain dollar value of goods, 
reduce the volume or value of imports, incorporate local content into products, make or increase 
investments in Argentina and/or refrain from repatriating profits, as a prior condition for permission to import goods"
458, which "applies until it is withdrawn".459 
5.116.  The above descriptions by the complainants of the TRRs measure point to a measure 
having certain attributes of generality and prospe ctiveness. Nevertheless, we observe that these 
descriptions fall short of characterizing the measure as a "norm or rule" of general and prospective application. The Panel also considered that, in their joint claims, the complainants were not 
challenging the TRRs measure "as such" as a rule or norm.
460 I n  t h i s  r e s p e c t ,  w e  n o t e  t h e  
clarification made by the United States on appeal that the measure being challenged is not a "rule 
                                               
453 European Union's second written submission to the Panel, para. 114. 
454 European Union's second written submission to the Panel, para. 116. 
455 Japan's second written submission to the Panel, para. 113. 
456 Japan's second written submission to the Panel, para. 101. 
457 Japan's second written submission to the Panel, para. 112. 
458 United States' second written submission to the Panel, para. 111. 
459 United States' second written submission to the Panel, para. 116. 
460 Panel Reports, para. 6.153. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  or norm" as that term was used by the Appellate Body in US – Zeroing (EC) .461 These descriptions 
are thus consistent with the complainants' choice not to characterize their joint claims against the TRRs measure as "as such" claims challenging a "norm or rule" of general and prospective application.
462 
5.117.  Nevertheless, the complainants' descriptions of the challenged TRRs measure reveal their 
understanding of the defining characteristics of that measure. Although the terminology each complainant used differs to some extent, in our view, the constituent elements of the TRRs 
measure as described by the complainants appear to be as follows: (i) an unwritten measure in 
the form of a decision by the Argentine authorities; (ii) a single measure that is composed of several individual elements imposed in pursuit of the objectives of import substitution and trade 
deficit reduction; (iii) a measure that has systematic application; and (iv) a measure that has 
present and continued application. All these cons tituent elements serve to define the type of 
measure that is the object of the complainants' joint challenge. 
5.118.  The Panel was required to assess whether the complainants were able to demonstrate the 
existence of the TRRs measure by reviewing whet her the evidence and arguments they presented 
on the constituent elements of the alleged TRRs measure were sufficient to prove the existence of 
the measure at issue. The Panel was not required, as Argentina argues, to test the complainants' 
evidence and arguments on the TRRs measure agai nst an assumed legal standard or to employ 
the criteria that are pertinent for purposes of establishing the existence of a measure that is 
challenged "as such". Thus, by reviewing the Panel's findings evaluating the evidence and arguments regarding the constituent elements of the alleged TRRs measure as challenged by the 
complainants, we will be able to determine whether the Panel erred in concluding that the 
complainants had demonstrated the existence of the TRRs measure. 
5.2.2.3  The Panel's evaluation of the TRRs measure 
5.119.  Having considered how each of the complainants characterized the measure it was 
challenging, we now turn to consider how the Panel assessed the constituent elements of the alleged TRRs measure in the light of the eviden ce and arguments submitted by the complainants, 
and how it reached the conclusion that the complainants had demonstrated the existence of the 
TRRs measure. In doing so, we address those elements that, based on the complainants' descriptions, appear to be the constituent elemen ts of the alleged TRRs measure. We address, 
first, the attribution of the measure to the Government of Argentina and the precise content of the 
TRRs. Second, we review the Panel's analysis of the TRRs measure's systematic, present, and 
continued application. In our analysis, we also consider the relationship between the TRRs measure and the objectives of import substitution and trade deficit reduction underlying 
Argentina's policy of "managed trade".  
5.120.  We observe that, on appeal, Argentina does not directly challenge the Panel's identification 
and explanation of the content of the individual TRRs. Argentina submits that, having uncritically 
accepted the complainants' description of the cont ent of each alleged TRR, the Panel then sought 
to determine whether the alleged individual TRRs applied and operated in a combined manner and as part of a single measure. However, according to Argentina, none of the factors reviewed by the Panel says anything about whether the alleged TRRs measure was attributable to Argentina, its 
precise content, or, most importantly, whether it had general and prospective application.
463 
Argentina claims that, as a result of this legal error, the Panel effectively presumed at the outset of its analysis that the alleged TRRs measure exists before having assessed whether the alleged TRRs 
measure is attributable to Argentina, its precise content, and whether it has general and 
prospective application.
464 
5.121.  With respect to attribution, we observe that the Panel stated that Argentina did not dispute 
the attribution of the TRRs measure to Argentina.465 
                                               
461 United States' appellee's submission, para. 133. 
462 As explained above, Japan alone did raise an "as such" claim against the TRRs measure, which the 
Panel assessed separately from its evaluation of the "joint claims". 
463 Argentina's appellant's submission, para. 128. 
464 Argentina's appellant's submission, para. 129. 
465 Panel Reports, para. 6.230. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5.122.  Turning to the precise content of the TRRs measure, we understand that Argentina raises 
two related objections to the Panel's findings. Firs t, Argentina claims that, having failed to apply 
the legal standard from US – Zeroing (EC)  for the identification of an unwritten measure 
challenged "as such" in WTO dispute settlement, the Panel erred because it relied on the legal 
standard in US – COOL  for a panel's collective assessment of challenges against multiple written 
measures and considered whether the individual TRRs operate together as a single measure – thus presuming that the TRRs measure existed – before analysing its content.
466 Second, Argentina 
claims that the Panel erred because it "asserted the single TRRs measure into existence" without 
any evidence that the different TRRs form a single measure with "different normative content" than each of its alleged constituent elements.
467 
5.123.  The complainants respond that there is no separate legal standard applicable to the 
identification of an unwritten measure468, and that the Panel examined the precise content of the 
TRRs measure, even if it did not follow explicitly the analytical steps mentioned by the Appellate Body in US – Zeroing (EC) .
469 Moreover, in their view, Argentina is confusing separate 
and distinct standards. Japan submits that the Panel applied the legal standard under US – COOL  
to determine the existence of a single measure and not as an alternative to the US – Zeroing (EC)  
standard of whether a measure has general and prospective application.470 
5.124.  We recall that, before the Panel, the complainants challenged the existence of a single 
measure consisting of a combination of one or more of the five TRRs.471 In our view, the Panel did 
not err in evaluating, as part of its analysis of the measure at issue, whether and how the individual TRRs operate together as part of a single measure. The allegation that the TRRs 
measure is composed of several different elements concerns a specific characteristic of the 
measure that the Panel was required to assess in order to come to a determination as to the existence of the TRRs measure. As part of its examination of the precise content of the TRRs 
measure, the Panel was also required to evaluate  whether the individual TRRs apply and operate 
as part of a single measure. 
5.125.  The Panel started its analysis of the existence of the single measure stating that it would 
"first assess whether there is evidence of th e existence of the TRRs". The Panel noted the 
importance of this step, considering that the measure was unwritten.
472 Accordingly, the Panel 
determined whether the evidence available demo nstrated the existence of each of the five 
individual TRRs identified by the complainants.473 The Panel considered that Argentina imposed a 
combination of these TRRs on economic operator s and that more than one TRR had been imposed 
at a given time. Having found that there was evidence that Argentina imposed the five TRRs, the Panel considered whether these requirements apply and operate together as part of a single 
measure. 
5.126.  Having set out its understanding of the content and operation of the individual TRRs, the 
Panel then devoted the next subsection of its Reports to its analysis of the content of the TRRs 
measure. It is true that this subsection of the Panel Reports is brief.
474 Yet, the Panel analysed 
how the individual TRRs operate together in fu rtherance of an underlying policy of "managed 
trade" with the specific objectives of substituting imports and reducing trade deficits. Importantly, the Panel's analysis of the existence of the TRRs measure has to be understood as part of a holistic 
analysis, and cannot be read in isolation from other parts of its Reports, including the analysis that 
immediately preceded it. Significantly, the Pane l summarized its understanding of the content of 
the TRRs measure in paragraph 6.119 of the Panel Reports. While this paragraph is included in the 
section of the Reports in which the Panel addressed the treatment of evidence, we consider that in 
it the Panel already provided a comprehensive explanation of its understanding of the TRRs measure. Moreover, the Panel explained that its "conclusions", as set out in paragraph 6.119, were 
based on, inter alia , the specific facts discussed in the section of its Reports dealing with the TRRs, 
and that "each of these conclusions [would] be de scribed and developed" in that section of its 
                                               
466 Argentina's appellant's submission, paras. 126 and 130. 
467 Argentina's appellant's submission, para. 133. 
468 United States' appellee's submission, para. 138. 
469 European Union's appellee's submission, para. 137. 
470 Japan's appellee's submission, para. 66. 
471 Panel Reports, para. 6.139. 
472 Panel Reports, para. 6.138. 
473 Panel Reports, paras. 6.145 and 6.155-6.216. 
474 Panel Reports, paras. 6.217-6.231. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Reports.475 The overall conclusions that the Panel outlined in paragraph 6.119, based on its holistic 
examination of all the evidence, are the following: 
… First, high-ranking Argentine Government officials have announced in public 
statements and speeches a policy of so-called "managed trade" ( comercio 
administrado ), with the objectives of substituting imports for domestically-produced 
goods and reducing or eliminating trade deficits. Second, since at least 2009 the Argentine Government has imposed a combination of TRRs on prospective importers 
as a condition to import or to receive certain benefits. Third, these TRRs have been 
imposed on importers covering a broad range of sectors such as foodstuffs, automobiles, motorcycles, mining equipment, electronic and office products, agricultural machinery, medicines, publications, and clothing. Fourth, the TRRs are in 
some cases reflected in agreements signed between specific economic operators and 
the Argentine Government and in other cases contained in letters addressed by economic operators to the Argentine Government. Fifth, the Argentine Government 
has on occasion required compliance with TRRs as a condition for lifting observations 
entered into DJAI applications. Sixth, statements made by high-ranking Argentine Government officials, including the President, the Minister of Industry and the 
Secretary of Trade, suggest that the TRRs seek to implement the policy of so-called 
"managed trade" explained above.
476 
5.127.  Subsequently, in turning to its analysis of the TRRs measure, the Panel summed up its 
analysis, starting with the section on the treatment of evidence and the subsection devoted to the 
individual TRRs, considering that the single measure "would consist of Argentina's imposition of 
one or more TRRs on economic operators as a condition to import goods or to obtain certain benefits".
477 The Panel had determined previously that various economic operators, irrespective of 
size and domicile, have been affected by the TRRs, and that the TRRs are not imposed equally on 
all economic operators or importers.478 Rather, the combination of TRRs imposed on individual 
economic operators seems to depend on "the featur es of the operator and on the contribution of 
the requirement to the attainment of Argentina's policy of substituting imports and reducing or 
eliminating trade deficits".479 The Panel had also noted that statements made by Argentine officials 
confirm that the TRRs are imposed according to the particular situation of economic operators480, 
and that certain statements also confirm that the Argentine Government monitors the 
implementation of the commitments undertaken by economic operators.481 
5.128.  The Panel began it analysis of the conten t of the TRRs measure, in paragraph 6.221 of its 
Reports, by noting that in the preceding sections it had "found evidence … that, at least 
since 2009, Argentina has required from importers and other economic operators to undertake one 
or more of [five] trade-related commitments, as a condition to import goods or to obtain certain benefits".
482 Moreover, in paragraph 6.223, the Panel clarified that "the determination of the 
existence and content of the individual TRRs was the first step in determining the existence and 
content of a single measure (the TRRs measure)."483 
5.129.  Subsequently, in paragraph 6.228 of the Panel Reports, the Panel outlined its 
understanding of how the TRRs apply and operate together as part of a single measure. The Panel 
found that the TRRs "constitute different elements that contribute in different combinations and 
degrees – as part of a single measure – towards the realization of common policy objectives that guide Argentina's 'managed trade' policy, i.e. substituting imports and reducing trade deficits".
484 
The Panel had stated earlier in its Reports that the TRRs imposed by the Argentine Government 
seem to be in line with three of the five economic objectives or "macroeconomic guidelines" set 
                                               
475 Panel Reports, para. 6.120. 
476 Panel Reports, para. 6.119. (fn omitted) 
477 Panel Reports, para. 6.219. 
478 Panel Reports, para. 6.159. 
479 Panel Reports, para. 6.225. 
480 Panel Reports, para. 6.226. 
481 Panel Reports, para. 6.160. 
482 Panel Reports, para. 6.221. 
483 Panel Reports, para. 6.223. 
484 Panel Reports, para. 6.228. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  out in Argentina's Industrial Strategic Plan 2020 ( Plan Estratégico Industrial 2020 )485 (PEI 2020): 
(i) protection of the domestic market and import  substitution; (ii) increase of exports; and 
(iii) promotion of productive investment.486 In the Panel's view, it is within the context of these 
economic objectives that the Argentine Governme nt has proclaimed its "managed trade" policy, 
elements of which appear to have been part of the productive model developed in Argentina since 
2003.487 Given the contribution of the TRRs toward the realization of common policy objectives, 
the Panel considered that an individual consider ation of the TRRs would not capture some of the 
main features of the TRRs measure, namely, its flexibility and versatility.488  
5.130.  In our view, the Panel's analysis of the co ntent of the TRRs measure, including the analysis 
of how the individual components of the single me asure apply and operate together as part of that 
whole, cannot be separated and considered in isolation from the Panel's detailed analysis of the 
contents of the individual TRRs in the precedin g subsubsection of its Reports. We understand the 
Panel to say that the combined application and operation of the individual TRRs is an important part of the TRRs measure with distinct content. In particular, we understand the Panel to conclude 
that the precise content of the TRRs measure coin cides neither with the content of the individual 
TRRs nor with that of the "managed trade" policy or its underlying objectives (import substitution and deficit reduction). Rather, the content of the single measure consists of the combined 
operation of the individual TRRs as one of the tools that Argentina uses to implement the 
"managed trade" policy. This content is distinct both from that of each TRR – which, taken individually, may not be apt to implement the "managed trade" policy – and from the content of the "managed trade" policy itself. We further observe that Argentina's managed trade policy 
encompasses elements other than those objectives that the Panel identified as relevant to the 
TRRs measure, and, in any event, we do not understand the Panel to have treated Argentina's "managed trade" policy itself as a measure at issue in these disputes. 
5.131.  The Panel referred to extensive evidence on the Panel record showing that the TRRs 
measure implements the "managed trade" policy, and that this policy has been announced in public statements and speeches and on government websites by high-ranking Argentine 
Government officials, including the President, the Minister of Industry, and the Secretary of Trade. 
High-ranking Argentine officials have also referred to the imposition of TRRs on specific companies and sectors. As the Panel explained, this eviden ce suggests that these TRRs are interlinked and 
operate together as part of a single measure and will continue to be imposed in the future unless 
and until the policy is repealed or modified.
489 
5.132.  In our view, more extensive reasoning wo uld have enhanced the clarity of the Panel's 
approach to the determination of the content of th e TRRs measure as distinct from the individual 
TRRs. In particular, the Panel could have explaine d more precisely why it was persuaded that the 
assessment of how the individual TRRs apply and operate together also revealed the content of the TRRs measure as an overarching measure wh ose constituent elements are connected or 
interlinked by virtue of the underlying policy of "managed trade" as distinct from the content of the 
individual TRRs. Nevertheless, we are persuaded that a thorough reading of all relevant parts of the Panel Reports taken together reveals the Pane l's approach to establishing the existence and 
the precise content of the TRRs measure.  
5.133.  In the light of the above, we do not co nsider that the Panel committed an error in first 
assessing the content of the individual TRRs and then conducting an analysis of how the individual TRRs apply and operate together as part of a sing le measure and of the associated content of such 
a single measure. In particular, we are not persuaded, as Argentina contends, that the Panel 
presumed the existence of the TRRs measure because it determined first how the individual TRRs operate as part of a single measure before addressing the precise content and the question of 
attribution of such a single measure. Rather, we consider that the Panel conducted a holistic 
analysis of how the individual TRRs operate as part  of a single measure and of the content of such 
                                               
485 Ministry of Industry of Argentina, Ar gentina's Industrial Strategic Plan 2020 ( Plan Estratégico 
Industrial 2020 ), 4 October 2011 (Panel Exhibits ARG-51 and JE-749). 
486 Panel Reports, para. 6.161. 
487 Panel Reports, para. 6.162. 
488 Panel Reports, para. 6.228. 
489 Panel Reports, para. 6.230. For example, in an official press release issued in late 2013, the 
Argentine Secretary of Domestic Trade remarked that th e policy of "managed trade" would continue to be 
applied in the future as per the instructions from the President of Argentina. (Ibid., paras. 6.162 and 6.230) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  a single measure. As we see it, the combined operation of the individual TRRs is a defining 
element of the content of the TRRs measure. 
5.134.  Having determined that the Panel did not err in its assessment of the precise content of 
the TRRs measure and its attribution to the Argentine Government, we now turn to considering 
other elements of the alleged TRRs measure that the Panel was required to assess in order to 
establish whether it exists. 
5.135.  As explained, Argentina further contends that, under the relevant legal standard applied in  
US – Zeroing (EC) , the Panel should have established that the TRRs measure has general and 
prospective application. Yet, according to Argentina, "it is undisputed that the Panel did not examine the 'general and prospective' elements of this standard prior to concluding that the TRRs 
measure 'exists' in respect of the complainants' 'joint claims'". According to Argentina, "the Panel's 
failure in this regard irreparably taints its conclusion that the complainants had succeeded in 
demonstrating that the alleged TRRs measure is an unwritten rule or norm".
490 Before the Panel, 
Argentina had claimed that the most that the evidence of the TRRs presented by the complainants 
could possibly demonstrate is a series of discrete "one-off" actions relating to a limited number of 
individual "economic operators", in a limited number of sectors, whose particular content varied widely, and with nothing resembling the general and prospective application one would expect to 
find in a rule or norm.
491 
5.136.  The complainants respond that, even if th ey had not characterized their joint claims as 
"as such" claims, the Panel did, in fact, also find that the TRRs measure has general and prospective application.
492 Moreover, the complainants contend that, even assuming arguendo  that 
the Panel did not determine the general and prospective application of the TRRs measure in that 
section of its Reports containing the Panel's assessment of the joint claims, it explicitly did so in the section of the Panel Reports containing the Panel's assessment of the "as such" claims by 
Japan.
493 
5.137.  We note that it is true that, in evaluating the joint claims, the Panel expressed the view 
that it was not required to make a finding regarding whether the TRRs measure has general and 
prospective application, considering that the complainants had not challenged this measure "as 
such" as a rule or norm.494 Early in its analysis, the Panel distinguished the legal standard or 
criteria that apply in challenges against a measure "as such" from the same that applies when other challenges are raised. Before embarking on  its analysis of the TRRs measure, the Panel 
clarified that, in order to prove the existence of an unwritten measure, the complainants would 
have had to prove that it is attributable to Argentina and its precise content. However, the Panel also pointed out that, only if the complainants had requested findings against the TRRs measure 
"as such", would they also have had to prove that it has general and prospective application.
495 In 
expressing this view, the Panel referred to the finding in EC and certain member States – Large 
Civil Aircraft . In that dispute, the Appellate Body stated that it did not "consider that a complainant 
would necessarily be required to demonstrate the existence of a rule or norm of general and 
prospective application in order to show" that a measure consisting in a concerted action or practice exists.
496  
5.138.   We do not see that these statements by the Panel amount to legal error, as alleged by 
Argentina. We have already observed that, in  their joint claims, the complainants are not 
challenging the TRRs measure as an unwritten rule or norm of general and prospective application, but as an unwritten measure that has certain characteristics, including systematic and continued 
application. In this respect, we also note the argument made by the United States on appeal that 
the measure being challenged is not a "rule or norm" as that term was used by the Appellate Body 
                                               
490 Argentina's appellant's submission, para. 119. 
491 Argentina's appellant's submission, para. 149 (referring to Argentina's second written submission to 
the Panel, para. 106). 
492 European Union's appellee's submission, para. 139. 
493 Japan's appellee's submission, para. 70; United  States' appellee's su bmission, para. 141. 
494 Panel Reports, paras. 6.219 and 6.220. The Panel, however, addressed separately Japan's "as such" 
claims against the TRRs measure. 
495 Panel Reports, para. 6.42. 
496 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 794. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  in US – Zeroing (EC) , but rather a measure taking the form of a decision by Argentina to impose 
the TRRs497, which "applies until it is withdrawn".498 
5.139.  As explained above, given the nature of the TRRs measure as challenged by the 
complainants with their joint claims, we are not pe rsuaded that they were required to demonstrate 
the existence of the TRRs measure based on the cr iteria formulated by the Appellate Body in  
US – Zeroing (EC)  and, in particular, that it has general and prospective application. Rather, the 
complainants had to provide evidence and arguments to demonstrate the existence of the 
measure challenged, and specifically a measure that , as they contended, is applied systematically 
and will continue to be applied in the future. 
5.140.  Moreover, although the Panel considered that  it did not need to rule formally on whether 
the TRRs measure has general and prospective application as a rule or norm, the Panel 
nevertheless evaluated certain characteristics of the TRRs measure, such as its systematic 
application and its continued and future existence, as identified by the complainants in their submissions regarding the measure at issue. 
5.141.  Regarding the systematic application of the TRRs measure, the Panel found that the 
TRRs measure seeks to implement a policy announced by high-ranking Argentine Government officials
499, and that the TRRs measure is not limited to a single import or a single importer, but is 
part of a policy implemented by the Argentine Government.500 The Panel made these findings in its 
analysis of the individual TRRs. However, it relied on them by inserting cross-references to these findings in its later analysis of the content and operation of the TRRs measure. In its analysis of the TRRs measure, the Panel also found that, as part of a single measure, the TRRs are imposed in 
combination on economic operators in different sectors and that the TRRs measure nevertheless 
remains a single measure regardless of the number of TRRs imposed in a specific case because, in all instances of application, it implies the imposition of one of more requirements.
501 Finally, the 
Panel found that Argentina had not provided evidence to support its assertion that the TRRs can, 
at most, be characterized as "a series of individual one-off and isolated actions that concern a limited number of individual economic operators in a limited number of sectors, whose content 
varies considerably and lacks anything resembling general and specific application".
502 
5.142.  As discussed further below, the Panel subsequently relied on these same findings to 
determine that the TRRs measure has "general" app lication as a rule or norm when it addressed 
Japan's "as such" claims. It seems to us that, in the context of the joint claims, the Panel's 
findings show that the TRRs measure has systematic application as opposed to sporadic, unrelated 
applications of individual TRRs. The systematic nature of the unwritten TRRs measure is evidenced by and manifested in the fact that TRRs are applied to economic operators in a broad variety of 
different sectors as part of an organized effort, coordinated and implemented at the highest levels 
of government, and aimed at achieving import substi tution and reduction of trade deficit within the 
framework of the "managed trade" policy. 
5.143.  Regarding the present and continued application of the TRRs measure, the Panel found 
that the evidence suggests that the TRRs will continue to be imposed "until and unless the policy is repealed or modified", and cited a statement by the Argentine Secretary of Domestic Trade that the policy of "managed trade" will continue to be applied in the future as per the instructions from 
the President of Argentina.
503 As discussed further below, this same evidence and reasoning was 
used by the Panel to support its findings regarding the TRRs measure's prospective nature in its analysis of Japan's "as such" claims. It seems to us that the Panel's findings in the context of its 
analysis of the joint claims show that the TRRs measure has present and continued application, in 
the sense that it is currently applied and it will continue to be applied in the future until the underlying policy is modified or withdrawn. 
                                               
497 United States' appellee's submission, para. 133. 
498 United States' second written submission to the Panel, para. 116. 
499 See Panel Reports, para. 6.230. 
500 See Panel Reports, paras. 6.157 and 6.158. 
501 Panel Reports, paras. 6.225 and 6.227. 
502 Panel Reports, para. 6.116. See also paras. 6.229 and 6.334. 
503 Panel Reports, para. 6.230 (referring to Panel Exhibit JE-759). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5.144.  With respect to the continued application of a measure, we recall that the panel in  
US – Orange Juice (Brazil)  – which examined a challenge against zeroing as "on-going conduct", 
as opposed to a rule or norm of general and prospective application – found that "on-going conduct may be simply described as conduct that is currently taking place and is likely to continue  
in the future".
504 That panel interpreted the Appellate Body's definition of "on-going" conduct in  
US – Continued Zeroing  as entailing the likely prospective operation of the measure at issue, but 
not necessarily as absolute certainty that the conduct would occur in the future.505 
5.145.  Given that, in the joint claims, the complainants did not challenge the TRRs measure as a 
rule or norm of general and prospective application, as noted above, the Panel was not required to examine the same criteria formulated by the Appellate Body in US – Zeroing (EC) . Instead, the 
Panel correctly examined the relevant constituen t elements of the measure subject to the joint 
claims and determined, based on the evidence an d arguments the complainants presented, that 
the TRRs measure has systematic application and will continue to be applied until it is modified or withdrawn by the Argentine authorities and the Government ceases to apply it. Finally, we observe 
that, while Argentina claims on appeal that, in the context of Japan's "as such" claims, the Panel 
acted inconsistently with Article 11 of the DSU in  finding that the TRRs measure has general and 
prospective application, Argentina does not directly challenge the Panel's findings that the TRRs 
measure has systematic and continued application.  
5.146.  We consider, therefore, that, in assessing the joint claims, the Panel correctly found that 
the complainants had demonstrated the existence of a TRRs measure, which is composed, in particular, of several individual TRRs operating together in an interlinked fashion as part of a single 
measure in pursuit of the objectives of import substitution and trade deficit reduction. The Panel 
also found that the TRRs measure has systematic application, as it applies to economic operators in a broad variety of different sectors, and that it has present and continued application, in the 
sense that it currently applies and it will continue to be applied in the future until the underlying 
policy ceases to apply. We do not consider that, as Argentina contends, the Panel applied the wrong legal standard for determining the existence of the measure at issue. 
5.2.2.4  Conclusions 
5.147.  In the light of all of the above, we are not persuaded that, in addressing the joint claims 
against the TRRs measure, the Panel erred in its choice of the legal standard or criteria that it used to determine whether such measure exists.  
5.148.  Accordingly, we uphold the Panel's finding, in paragraph 6.231 of the Panel Reports, 
paragraph 7.1.d of the EU Panel Report, paragraph 7.5.c of the US Panel Report, and 
paragraph 7.9.d of the Japan Panel Report, in respec t of the joint claims by the three complainants 
that the Argentine authorities' imposition on economic operators of one or more of the five 
requirements identified by the complainants as a condition to import or to obtain certain benefits, operates as a single measure (the TRRs  measure) attributable to Argentina. 
5.149.  As a consequence, we also uphold the Panel's finding, in paragraph 6.265 of the Panel 
Reports, paragraph 7.1.e of the EU Panel Report , paragraph 7.5.d of the US Panel Report, and 
paragraph 7.9.e of the Japan Panel Report, that the TRRs measure, consisting of the Argentine 
authorities' imposition of one or more of the five  requirements identified by the complainants as a 
condition to import, constitutes a restriction on the importation of goods and is thus inconsistent 
with Article XI:1 of the GATT 1994; as well as the Panel's finding, in paragraph 6.295 of the Panel Reports, that "the TRRs measure, with respect to the local content requirement, is inconsistent 
with Article III:4 of the GATT 1994" because it "modifies the conditions of competition in the 
Argentine market to the detriment of imported products" so that "imported products are granted less favourable treatment than like domestic products".
506 
5.150.  In reaching this conclusion, we would like to clarify that we do not understand the Panel to 
have ruled on individual TRRs beyond the five that were specifically identified as forming part of 
                                               
504 Panel Report, US – Orange Juice (Brazil) , para. 7.176. (emphasis original) 
505 Panel Report, US – Orange Juice (Brazil) , para. 7.175.  
506 EU Panel Report, para. 7.1.f; Japan Panel Report , para. 7.9.f. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  the TRRs measure, or to have ruled on the individual TRRs in isolation507, that is, separately from 
their imposition as a condition to import or to receive certain benefits. We also endorse the Panel's statement that "nothing in the Panel's rulings calls into question the ability of WTO Members to pursue their development policies, such as those identified by Argentina, in a manner consistent 
with the overall objectives stated in the preamble of the WTO Agreement and their commitments 
under the WTO agreements".
508 
5.2.3  Article 11 of the DSU – Japan's "as such" claims 
5.151.  Argentina claims that, in addressing Japan's "as such" claims against the TRRs measure, 
the Panel acted inconsistently with its duties under Article 11 of the DSU because it found that Japan had established the existence of the TRRs measure without properly examining whether Japan had presented sufficient evidence of its "preci se content" and of its "general and prospective 
application".
509 Argentina requests us to reverse the Panel's conclusion, in paragraph 7.9.h of the 
Japan Panel Report, that the alleged TRRs measure is "as such" inconsistent with Articles XI:1 and III:4 of the GATT 1994. The complainants
510 argue that Argentina fails to identify any 
legitimate basis to question the Panel's objectivity and instead simply attempts to recast the same 
arguments that it has made with respect to its claim of error against the Panel's findings on the joint claims
511, and/or to second-guess the Panel's weighing of factual evidence.512 The 
complainants also stress that Argentina refused to provide evidence to the Panel and failed to 
confront the evidence before the Panel and on appeal. Thus, they contend that Argentina should not be allowed to hold this against the complainants in a claim under Article 11 of the DSU.
513 
5.152.  We recall that, having ruled in response to  the joint claims by the three complainants that 
the TRRs measure exists and that it is inconsistent with Articles XI:1 and III:4 of the GATT 1994, 
the Panel turned to consider whether the same TRRs measure is also inconsistent "as such" with the same provisions. This approach by the Panel generates some confusion, considering that the 
Panel had previously made findings on the same TR R s  me as ure, e ve n i f not  as  a rule  or  norm 
having general and prospective application, but as a measure with several constituent elements, including systematic and continued application. In reaching its "as such" findings, the Panel limited 
its analysis to an examination of whether the TRRs measure is a measure of general and 
prospective application that can be challenged "as such". In fact, the Panel had already found that the same TRRs measure as challenged in the joint claims is inconsistent with Articles XI:1 and III:4 of the GATT 1994. 
5.153.  Although the Panel made separate findings with respect to the joint claims and with 
respect to Japan's "as such" claims, we consider that its analysis of the TRRs measure and of its constituent elements must be understood in a holistic fashion. In reaching the conclusion that the 
TRRs measure is a norm of general and prospective application in its evaluation of Japan's 
"as such" claims, the Panel relied on virtually the same evidence that it had used in its evaluation of the joint claims to determine the existence of the TRRs measure as a measure with several 
                                               
507 In this regard, the Panel noted that the investment and the non-repatriation requirements have not 
been imposed on economic operators as stand-alone re quirements, but only in co mbination with the one-to-
one requirement and the local content requirement. (P anel Reports, paras. 6.208, 6.214, and 6.259) 
508 Panel Reports, para. 6.8. 
509 Argentina's appellant's submission, para. 138. 
510 We observe that, while the Panel's findings on the TRRs measure "as such" concern only Japan, the 
European Union and the United States have also submitted extensiv e arguments on appeal rejecting 
Argentina's claim that the Panel acted inconsistently with Article 11 of the DSU. The European Union and the United States regard Argentina's a ppeal under Article 11 of the DSU as recasting its arguments before the 
Panel on the TRRs measure "under the guise of" an Article 11 claim. (European Union's appellee's submission, para. 144; United States' appellee's submission, para . 158) Moreover, both the European Union and the 
United States argue on appeal that, if  the Appellate Body were to agree with Argentina that the Panel erred in 
deciding on the joint claims becaus e it did not determine the general and prospective application of the 
measure, the Panel did make findings on the general an d prospective application of the same measure for the 
purposes of Japan's "as such" claims and that these can be  relied upon to preserve the findings that the TRRs 
measure exists and is inconsistent with Articles XI:1 and III:4 of the GATT 1994. (European Union's appellee's 
submission, para. 128; United States' appellee's submission, para. 141) 
511 European Union's appellee's submission, para. 144;  United States' appellee's submission, para. 158; 
Japan's appellee's submission, para. 78. 
512 Japan's appellee's submission, para. 102; United  States' appellee's submission, para. 159. 
513 European Union's appellee's submission, para. 144;  United States' appellee's submission, para. 156; 
Japan's appellee's submission, para. 104. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  constituent elements, including systematic and continued application. Moreover, the Panel's 
reasoning on the general and prospective application of the TRRs measure in addressing the "as such" claims does not add to its reasoning behind its earlier findings on the same measure as challenged in the joint claims. In other words, the Panel considered that virtually the same 
evidence and arguments that demonstrated that the TRRs measure exists as the single measure 
challenged under the joint claims were also sufficient to demonstrate that the same measure also exists as a rule or norm having general and prospective application.  
5.154.  In the light of the above, we are uncertain  as to why the Panel considered additional and 
separate findings on Japan's "as such" claims against the TRRs measure to be useful or relevant, given that it had already found the same TRRs measure to exist and to be inconsistent with Articles XI:1 and III:4 of the GATT 1994 in response to the joint claims. We do not see what the 
findings entitled "as such" add in substance to the Panel's analysis that led it to reach its 
conclusions on the joint claims against the TRRs measure. 
5.155.  The present situation is, however, different from a situation in which a panel may need to 
make separate "as applied" and "as such" findings, if claims are brought against a rule or norm of 
general and prospective application "as such" and "a s applied". We do not consider that, in this 
dispute, the joint claims by the three complainan ts could be regarded as falling into either 
categories of "as such" or "as applied" claims. Rather, the Panel approached the joint claims based 
on how the three complainants had described and characterized the TRRs measure in their challenges, that is, as a measure with specific constituent elements, rather than as a rule or norm of general and prospective application. 
5.156.  As noted above, both sets of Panel findings  (in respect of the joint claims and in respect of 
Japan's "as such" claims) were made with respect to the same underlying TRRs measure, with the same constituent elements in substance. Both sets  of findings were based on virtually the same 
evidence and supported by virtually the same reasoning. This raises the question of whether there 
would be any meaningful difference in the compliance obligations that would flow from these two sets of Panel findings, were they to be adopted by the DSB.  
5.157.  We thus consider the Panel's "as such" findings on the TRRs measure to amount in 
substance to no more than the findings the Panel had already made in respect of the TRRs measure as challenged under the joint claims. Nevert heless, bearing this in mind together with the 
fact that the Panel conducted a holistic analysis of the TRRs measure and of its constituent 
elements, we turn to address Argentina's claim under Article 11 of the DSU. 
5.2.3.1  The evidentiary difficu lties confronted by the Panel 
5.158.  Before turning to our consideration of Argentina's claims that the Panel's findings on the 
precise content and the general and prospectiv e application of the TRRs measure lacked a 
sufficient evidentiary basis, we consider it necessary to recall the Panel's finding that Argentina refused to provide information, which the Panel explicitly requested, and which Argentina did not 
deny was in its possession. In particular, Argentina refused to provide any of the agreements 
between specific economic operators and the Gove rnment of Argentina, or letters by economic 
operators to the Government of Argentina, cont aining the trade-related commitments undertaken 
by such economic operators as a condition to import into Argentina.
514  
5.159.  In previous disputes, the Appellate Body ha s held that "the refusal by a Member to provide 
information requested of it undermines seriously the ability of a panel to make an objective assessment of the facts and the matter, as required by Article 11 of the DSU", and that, as part of 
its objective assessment of the facts under Articl e 11 of the DSU, a panel is entitled to draw 
adverse inferences from a party's refusal to provide information.
515 Therefore, "[w]here a party 
refuses to provide information requested by a pane l under Article 13.1 of the DSU, that refusal will 
be one of the relevant facts of record, and indeed an important fact, to be taken into account in 
determining the appropriate inference to be drawn".516 
                                               
514 Panel Reports, paras. 6.43-6.55. 
515 Appellate Body Report, US – Wheat Gluten , paras. 172 and 173. 
516 Appellate Body Report, US – Wheat Gluten , para. 174. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5.160.  The Panel observed that Argentina did not deny that it was in possession of these 
documents, but refused to provide them to the Pane l, notwithstanding an explicit request from the 
Panel that it do so.517 We note that the TRRs are unwritten and that they are not contained in any 
law, regulation, or administrative act. Thus, the primary source of direct evidence of the content 
and nature of the TRRs would appear to be th e agreements between the economic operators and 
the Argentine Government and the letters addressed by economic operators to the Government. The Panel acknowledged that it had limited direct  evidence, due to the lack of cooperation or 
inability of the parties to provide documentation
518, and also drew inferences from Argentina's 
refusal to provide evidence.519 Had the Panel been provided with the documents it requested, it 
m i g h t  h a v e  b e e n  a b l e  t o  r e l y  u p o n  a  m o r e  r o b u s t  e v i d e n t i a r y  b a s i s  t o  s u p p o r t  i t s  f i n d i n g s  regarding the content of the measure, and its general and prospective application. The Panel 
nevertheless supported its findings with the evidence available, together with the inferences that it 
drew from Argentina's refusal to provide the relevant agreements and letters. Argentina has not, on appeal, challenged either the Panel's finding th at Argentina refused to provide evidence or the 
Panel's consequential decision to draw inferences from such refusal in reaching its findings. 
5.161.  In the light of the above, we are of the view that our consideration of Argentina's claims on 
appeal under Article 11 of the DSU cannot ignore that Argentina bore at least some responsibility 
for the evidentiary difficulties faced by the Panel.  
5.2.3.2  The precise content of the TRRs measure 5.162.  Regarding the "precise content" of the measure, Argentina contends that the Panel acted 
inconsistently with Article 11 of the DSU because it uncritically accepted the complainants' 
characterization of the content of the alleged TRRs  measure and failed to ensure that its findings 
were based on the record evidence and supported by sufficient reasoning.
520 Argentina claims that 
the alleged "overarching" TRRs measure is invented by the complainants, is amorphous and 
ill-defined, and that its contents cannot be iden tified with the requisite degree of precision.521 
According to Argentina, the Panel made an "unsubst antiated assertion" that the available evidence 
provided it with sufficient elements to estab lish the existence and precise content of the TRRs 
measure, but in fact the Panel's analysis does not contain a single citation to the evidence on the 
panel record.522 
5.163.  The Panel's findings on the precise content of the TRRs measure that Argentina challenges 
under Article 11 of the DSU are those made with regard to Japan's "as such" claims against the 
TRRs measure in paragraphs 6.323 through 6.327 of the Panel Reports. However, the Panel had 
already made findings on the precise content of the same TRRs measure earlier as part of its analysis of the complainants' joint claims in paragraphs 6.221 through 6.231 of the Reports.
523 
Thus, in stating that the Panel's analysis does not contain a single citation to record evidence, 
Argentina disregards that the Panel had already made findings on the precise content of the same TRRs measure in an earlier section of its Reports. 
5.164.  In the section of its Reports addressing the complainants' joint claims, the Panel reached 
its findings on the precise content of the individual TRRs and of the TRRs measure based on extensive evidence produced by the complainan ts, the substance of which Argentina did not 
dispute.
524 Such evidence concerns the content of the in dividual TRRs, as well as their operation as 
a single measure. The Panel made clear that its findings in the different subsections of its Reports 
should be understood as parts of a holistic approach when it summarized the main factual findings that underpin its subsequent analysis of the TRRs and the TRRs measure. The Panel stated that "it 
ha[d] examined the information available and ha[d] assessed all the evidence in a holistic manner 
                                               
517 Panel Reports, paras. 6.46 and 6.117. 
518 Panel Reports, para. 6.64. 
519 Panel Reports, para. 6.116. The Panel further observ ed that Argentina did not dispute the basic facts 
concerning the existence and operation of the TRRs, an d failed to produce evidence to dispute the facts 
asserted by the complainants. (Ibid.) 
520 Argentina's appellant's submission, para. 184. 
521 Argentina's appellant's submission, para. 172. 
522 Argentina's appellant's submission, para. 181. 
523 Moreover, as we have considered above, the Pane l's findings on the precise content of the single 
measure must be understood in the context and in refere nce to the Panel's earlier analysis of the evidence 
concerning the individual TRRs and the TRRs me asure. (See paras. 5.126-5.130 of these Reports) 
524 Panel Reports, para. 6.116. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  in order to reach its conclusions" and that, as a result, it "[was] persuaded on the basis of the 
totality of the evidence of the … general facts, as well as of the specific facts that are discussed in 
sections 6.2 and 6.3 below".525 Section 6.2 of the Panel Report contains the entirety of the Panel's 
findings on the TRRs measure, including those in response to the joint claims by the three 
complainants and those in response to the "as such" claims by Japan. 
5.165.  In addressing Argentina's appeal of the Panel's findings on the TRRs measure, we have 
explained the Panel's identification of the content of the TRRs measure that it found to exist in 
assessing the joint claims. In addressing the precise content of the TRRs measure in that part of 
its Reports, the Panel stated that its "examination of the existence, nature, and characteristics of the individual TRRs was based on evidence such as copies of domestic laws, regulations, and policy documents; communications addressed to Argentine officials by private companies; statements by 
Argentine officials and notes posted on websit es of the Argentine Government; articles in 
newspapers and specialized publications; and statements by company officials".
526 Explaining why 
the individual TRRs constitute a single measure, the Panel considered "that the requirements 
constitute different elements that contribute in  different combinations and degrees … towards the 
realization of common policy objectives that guide Argentina's 'managed trade' policy, i.e. substituting imports and reducing or eliminating trade deficits".
527  
5.166.  In its analysis of Japan's "as such" claims, the Panel did not reproduce the extensive 
analysis of the content of the individual TRRs and of the TRRs measure that it had performed in addressing the joint claims. Rather, the Panel added a few additional considerations concerning the content of the TRRs measure. The Panel cautioned that requesting an extremely high level of detail 
in the definition of the content of an unwritten measure would make it almost impossible to 
challenge such type of measure in practice. For the Panel, what is crucial is that, based on the available evidence, both a panel and the responding party have a clear understanding of the 
components and the operation of the challenged measure.
528 Moreover, the Panel considered that 
the fact that the list of TRRs provided by the European Union and Japan was non-exhaustive was not an obstacle to considering the measure as one composed of several requirements.
529 In our 
view, these are additional considerations, which the Panel made in its assessment of the precise 
content of the TRRs measure. They cannot be ta ken as a self-standing assessment of the precise 
content of the TRRs measure. Rather, it is clear th at they must be read together with the Panel's 
earlier analysis of the precise content of the same TRRs measure. 
5.167.  As the European Union notes on appeal, the Panel's analysis of the precise content of the 
TRRs measure in respect of Japan's "as such" claims would have benefited from an explicit cross-reference to its earlier findings on the content of the TRRs and of the TRRs measure in 
respect of the joint claims.
530 Nevertheless, we observe that, in laying out its general approach to 
the analysis of the unwritten measure, the Panel stated that it would first address whether the TRRs operate together as a single measure, and then, in considering the "as such" claims against 
the same measure, whether the TRRs measure has, in addition, general and prospective 
application.
531 In doing so, the Panel adopted a unified approach to the analysis of the TRRs 
measure, whereby the analysis of the precise content of the measure was common to the two sets of findings, while the analysis of the general and prospective application of the measure was 
limited to the section on the "as such" findings. Therefore, when the Panel turned to consider 
Japan's "as such" claims against the TRRs measure, the Panel was clearly relying on its earlier findings on the precise content of the TRRs measure as challenged under the joint claims, having 
already devoted a significant part of its Reports to discussing evidence of the content of each 
individual TRR and of the TRRs measure. 
                                               
525 The Panel refers to, inter alia , the imposition of TRRs on pros pective importers covering a broad 
range of sectors as a condition to import or to rece ive certain benefits and to  the statements made by 
high-ranking Argentine Government of ficials suggesting that the TRRs seek to implement the "managed trade" 
policy with the objectives of substi tuting imports for domestically produc ed goods and reducing or eliminating 
trade deficits. (Panel Reports, para. 6.119) 
526 Panel Reports, para. 6.223. 
527 Panel Reports, para. 6.228. 
528 Panel Reports, para. 6.325. 
529 Panel Reports, para. 6.326. 
530 European Union's appellee's submission, para. 148. 
531 Panel Reports, paras. 6.219 and 6.220. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5.168.  In sum, by arguing that the Panel failed to  ensure that its findings on the precise content 
of the TRRs measure were based on the record evidence and sufficiently supported with adequate reasoning, Argentina reads the Panel's findings on Japan's "as such" claims against the TRRs measure in isolation from the Panel's earlier identification and explanation of the same TRRs 
measure, and disregards that, in response to the joint claims, the Panel had already made findings 
on the precise content of that same measure, wh ich were based on record evidence. In our view, 
the Panel adopted a unified approach to its anal ysis of the TRRs measure, meaning that its 
analysis of Japan's "as such" claims cannot be read in isolation from its earlier findings on the 
TRRs measure.  
5.169.  Therefore, we reject Argentina's argument that the Panel acted inconsistently with 
Article 11 of the DSU because its findings on the precise content of the TRRs measure were neither 
based on the record evidence nor supported by sufficient and adequate reasoning. 
5.2.3.3  The general and prospective  application of the TRRs measure 
5.170.  Argentina also contends that the Panel violated Article 11 of the DSU because it failed to 
ensure that its findings concerning the general and prospective application of the alleged TRRs 
measure were based on record evidence and supp orted by reasoned and adequate explanations 
and coherent reasoning.
532 We recall that we have considered above that the Panel conducted a 
holistic analysis of all the claims against the TRRs measure and that its findings on Japan's 
"as such" claims do not appear to differ in substance from the findings that it made in respect of the TRRs measure as challenged under the joint claims, even though the respective analyses were conducted in different subsections of the Panel Re ports. Bearing these considerations in mind, we 
turn to address Argentina's claim that the Panel acted inconsistently with Article 11 of the DSU in 
making its "as such" findings. 
5.171.  Argentina argues that the complainants fa iled to establish that the alleged TRRs measure 
is "general" in its application within the ordinary meaning of this term, considering that, by their 
own acknowledgement, the TRRs measure does not apply to all imports, to all importers, or to all economic operators.
533  
5.172.  We have explained above that the TRRs measure is composed of several requirements 
that, as the Panel found, "contribute in different combinations and degrees … towards the realization of common policy objectives".
534 Therefore, by definition , the TRRs measure cannot 
apply in the same manner to all imports, importers, or economic operators. Neither the TRRs 
measure nor the individual TRRs were designed to apply to specific individuals or companies, but 
potentially affect an unidentified number of economic operators. The multiplicity and flexibility of the TRRs and the fact that the list is non-exhaustive gives to the TRRs measure a very broad scope 
of application, which, as we have explained ab ove, supports the Panel's finding that the TRRs 
measure has systematic application. 
5.173.  More fundamentally, however, we are of the view that Argentina's claim that the Panel 
erred in determining that the TRRs measure has ge neral application is not concerned with whether 
the Panel made an objective assessment consistent with Article 11 of the DSU. We recall that, in previous disputes, the Appellate Body has held that "[i]t is … unacceptable for a participant effectively to recast its arguments before the panel under the guise of an Article 11 claim" and that 
"a participant must identify specific errors regarding the objectivity of the panel's assessment".
535 
The Appellate Body also held that "a claim that a panel failed to comply with its duties under Article 11 of the DSU must stand on its own, and should not be made merely as a 'subsidiary 
argument' in support of a claim that the panel erred in its application of a WTO provision."
536 
5.174.  It seems to us that, by arguing that the complainants failed to establish that the alleged 
TRRs measure is "general" in its application within the ordinary meaning of this term, Argentina is 
questioning the legal standard or criteria applie d by the Panel in finding that the TRRs measure 
has "general" application, rather than the objectivity of the Panel's assessment of the facts under 
                                               
532 Argentina's appellant's submission, para. 199. 
533 Argentina's appellant's submission, para. 189. 
534 Panel Reports, para. 6.228. 
535 Appellate Body Report, EC – Fasteners (China) , para. 442. 
536 Appellate Body Report, US – COOL , para. 301. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Article 11 of the DSU. Indeed, in contending that the TRRs measure cannot be considered to have 
general application because it does not apply to all imports, to all importers, or to all economic operators, Argentina is taking issue with the Pane l's interpretation and application of the concept 
of "general application", rather than with the Panel's treatment of the evidence showing how the 
TRRs are applied, or the Panel's reasoning on th e basis of that evidence. We, therefore, do not 
consider that Argentina's claim that the complainants failed to demonstrate that the TRRs measure has "general" application is properly raised under Article 11 of the DSU. 
5.175.  Argentina also claims that the Panel's finding that the alleged TRRs measure has 
prospective application lacks a sufficient evidentiary basis.
537 Argentina notes that the Panel cited 
only one single piece of evidence, Exhibit JE-759, in  support of its conclusion that the alleged TRRs 
measure implements a deliberate policy, and that this exhibit does not suffice to establish that 
such policies are implemented through an unwritten measure of general and prospective 
application that is WTO-inconsistent.538 
5.176.  Depending on the circumstances of a particular case, a single piece of evidence may 
constitute sufficient proof that a measure has prospective application. As the trier of facts, a panel 
can exercise its discretion in selecting the evidence it relies upon to establish certain facts. It is only when it exceeds such discretion in weighing the evidence that an Article 11 violation can be 
found. In previous disputes, the Appellate Body has also considered that not every error in the 
appreciation of a particular piece of evidence will  rise to the level of a failure by the panel to 
comply with its duties under Article 11 of the DSU
539, and that for an Article 11 claim to succeed a 
party must explain why the evidence is so material to its case that the panel's failure to address 
such evidence has a bearing on the objectivity of the panel's factual assessment.540 Thus, even 
assuming that the Panel relied only on Exhibit JE-759 to support its findings that the TRRs 
measure is prospective in nature, this does not, in our view, in and of itself constitute a violation of 
Article 11 of the DSU. 
5.177.  We recall that Exhibit JE-759 contains an interview with Argentina's Secretary of Domestic 
Trade stating that the policy of "managed trade"  would continue to be applied in the future 
pursuant to instructions from the President of Arge ntina. This evidence was relevant to the Panel's 
understanding of the specific constituent elements  of the TRRs measure, namely, its present and 
continued application, as well as the objectives that it pursues (import substitution and trade balancing) and the policy of managed trade underlying these objectives.  
5.178.  Furthermore, and as the complainants point out, the Panel did not rely exclusively on 
Exhibit JE-759 to determine that the TRRs measure has prospective application.
541 In this part of 
its analysis of Japan's "as such" claims, the Panel explicitly cross-referenced its earlier findings 
that the TRRs measure reflects a "deliberate policy" , as it constitutes repeated actions, coordinated 
and publicly announced by the highest authorities.542  
5.179.  Finally, turning to Argentina's allegation th at the Panel failed to provide coherent reasoning 
in its findings concerning the general and pros pective application of the TRRs measure, the 
Appellate Body has found that internally incoherent reasoning by a panel may amount to a failure to make an objective assessment.
543 In this dispute, Argentina argues that the Panel failed to base 
its findings on the TRRs measure on record evidence and failed to support these findings with 
sufficient and adequate reasoning. However, Argent ina does not elaborate any specific allegations 
                                               
537 Argentina's appellant's submission, para. 195. 
538 Argentina's appellant's submission, para. 198. 
539 Appellate Body Report, EC – Hormones , para. 133. 
540 Appellate Body Report, EC – Fasteners (China) , para. 499. 
541 European Union's appellee's submission, para . 162; United States' appellee's submission, 
paras. 188-190; Japan's appellee's submission, para. 103. 
542 Panel Reports, para. 6.340 (referring to ibid., paras. 6.230, 6.334, and 6.335). The European Union 
also points out that the Pa nel referred to evidence of agreements signed between economic operators and the 
Argentine authorities, as well as the commitments provided in letters by many economic operators, all of which require a prospective course of action. (European Union's appellee's submission, para. 162) 
543 In US – Upland Cotton (Article 21.5 – Brazil) , the Appellate Body found that the panel had acted 
inconsistently with Article 11 of the DSU because its trea tment of the evidence submitted by the parties lacked 
even-handedness, and its reasoning was internally incohe rent. In particular, the Appellate Body found that the 
panel had treated competing evidence  submitted by the parties inconsis tently. (Appellate Body Report,  
US – Upland Cotton (Article 21.5 – Brazil) , para. 292) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  or examples of incoherence or contradictions in the Panel's reasoning. Nor does Argentina point to 
any lack of even-handedness in the Panel's evalua tion of the evidence. Indeed, Argentina did not 
present competing evidence to the Panel, and hard ly engaged with the evidence presented by the 
complainants. In the light of the above, we consider that Argentina has not established that the 
Panel's reasoning in the context of the findings concerning the general and prospective application 
of the TRRs measure is incoherent, much less that any such deficiency amounted to a failure to make an objective assessment of the matter. 
5.180.  In the light of the above, we do not consider that Argentina has established that the Panel 
failed to ensure that its findings concerning the general and prospective application of the alleged TRRs measure were based on record evidence and were supported by reasoned and adequate explanations and coherent reasoning. Therefore we do not consider that the Panel acted 
inconsistently with Article 11 of the DSU. 
5.181.  Nevertheless, in dismissing Argentina's claim under Article 11 of the DSU, we do not wish 
to be seen as endorsing the Panel's additional findings on Japan's "as such" claims against the 
TRRs measure. As set out above, we see the Panel's "as such" findings on the TRRs measure as 
amounting in substance to no more than the findings the Panel had already made in respect of the TRRs measure as challenged under the joint claims. 
5.182.  We wish to underline that we understand the Panel, in purporting to find that the TRRs 
measure has "general application", in fact to have  found nothing other than that the TRRs measure 
has "systematic application". Similarly, we understand the Panel, in purporting to find that the TRRs measure has "prospective application", to ha ve found no more than that the TRRs measure 
will continue to be applied in the future. Thus, we do not understand the Panel's finding in its 
analysis of Japan's "as such" claims that the TRRs measure has "prospective application" as implying anything more than it had already found in its analysis of the element of "continued 
application" under the joint claims. Moreover, nothing in the Panel's reasoning indicates that it 
considered the TRRs measure to have the same leve l of security and predictability of continuation 
into the future typically associated with rules or norms. 
5.183.  In this connection, we also observe that, at the outset of its analysis of Japan's "as such" 
claims, the Panel identified what it considered to be relevant jurisprudence relating to the assessment of "as such" claims, in particular with respect to unwritten measures.
544 The excerpts 
cited by the Panel referred to such claims being brought as challenges to "rules or norms … of 
general and prospective application". In the remainder of its analysis of Japan's "as such" claims, 
the Panel focused solely on analysing the content of the TRRs measure and on whether it has general and prospective application. The Panel did not further refer to, much less examine, 
whether the TRRs measure embodies or creates "rules or norms". Although rules and norms 
typically have general and prospective applicatio n, these two characteristics are not necessarily 
the only ones exhibited by rules and norms. Th e Panel did not inquire whether the TRRs measure 
possesses other types of attributes that characterize "rules or norms" and never affirmatively 
stated that it viewed the TRRs measure as embody ing rules or norms. For all of these reasons, we 
are puzzled as to why the Panel separately addressed Japan's "as such" claims against the TRRs measure, particularly given the analysis that it had already completed, and the findings that it had 
already made, namely that the TRRs measure exists and is inconsistent with Articles III:4 and XI:1 
of the GATT 1994. 
5.2.3.4  Conclusion 
5.184.  For the foregoing reasons, we do not consider that Argentina has established that the 
Panel failed to make an objective assessment of the matter in making its "as such" findings.
545 
Accordingly, we find that Argentina has not established that the Panel acted inconsistently with 
Article 11 of the DSU.  
                                               
544 Panel Reports, paras. 6.315-6.319. 
545 As discussed earlier in  these Reports, we emphasize again that we consider that the Panel's 
"as such" findings actually amount in substance to no mo re than the findings it made in respect of the TRRs 
measure challenged under the joint claims. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5.2.4  The Panel's exercise of judicial econ omy on Japan's claim under Article X:1 of the 
GATT 1994 
5.185.  We turn now to Japan's claim on appeal that the Panel erred in exercising judicial economy 
with respect to Japan's claim against the TRRs measure under Article X:1 of the GATT 1994. Japan 
requests that we reverse the Panel's decision to apply judicial economy and that we complete the 
analysis and find that the TRRs measure is inconsistent with Argentina's obligations under Article X:1.
546 According to Japan, the Panel acted inconsistently with Articles 3.4, 3.7, 7.2, 
and/or 11 of the DSU by exercising judicial economy on this claim because the "scope and 
content" of Article X:1 is distinct from the "scope and content" of Articles III:4 and XI:1 of the GATT 1994, and compliance with a finding under the latter provisions would not necessarily result in compliance with a finding under Article X:1.
547 Argentina requests us to reject Japan's claim, 
arguing that Japan fails to demonstrate why the Panel's findings under Article XI:1 alone lead to a 
partial resolution of this dispute.548 
5.186.  We recall that, after having found the TRRs measure to be inconsistent with Article XI:1 of 
the GATT 1994, the Panel stated that: 
[a]n additional finding regarding the same measure under Article X:1 of the 
GATT 1994 is not necessary or useful in resolving the matter at issue. Accordingly, 
guided by the principle of judicial economy, the Panel refrains from making any 
findings with respect to this particular claim.549 
5.187.  At the interim review stage, Japan and the United States requested the Panel to refrain 
from exercising judicial economy with respect to  their claims under Article X:1 of the GATT 1994 
against, inter alia , the TRRs measure.550 Argentina objected to these requests, stating that Japan 
and the United States had not explained why th e Panel's findings under Article XI:1 of the 
GATT 1994 would lead to a partial resolution of this dispute.551 
5.188.  The Panel responded that: 
… in the light of the Panel's findings regarding the TRRs measure …, additional findings 
regarding the same measure[] under Article X:1 of the GATT 1994 were not necessary 
or useful in resolving the matter at issue. Moreover, given the Panel's findings that the 
TRRs measure … constitute[s] restrictions on the importation of goods and [is] thus inconsistent with Article XI:1 of the GATT 1994, as well as the Panel's finding in the complaint brought by Japan that the TRRs measure, with respect to its local content 
requirement, is inconsistent with Articl e III:4 of the GATT 1994, whether Argentina 
published its measures in a manner consistent with Article X:1 of the GATT 1994 was no longer relevant for purposes of resolving this dispute.
552 
5.189.  The question before us is whether this ex ercise of judicial economy was proper. The proper 
exercise of judicial economy is linked to the aim of securing "a positive solution to a dispute", as reflected in Article 3.7 of the DSU, as well as to  the duty imposed on panels by Article 11 of the 
DSU to "make such other findings as will assist the DSB in making the recommendations or in 
giving the rulings provided for in the covered agreements".
553  
5.190.  The Appellate Body has explained that the principle of judicial economy "allows a panel to 
refrain from making multiple findings that the same measure is inconsistent  with various 
provisions when a single, or a certain number of findings of inconsistency, would suffice to resolve 
the dispute."554 Thus, panels need address only those claims "which must be addressed in order to 
                                               
546 Japan's other appellant's subm ission, paras. 3, 9, and 17. 
547 Japan's other appellant's subm ission, paras. 3, 4, and 13. 
548 Argentina's appellee's  submission, para. 22. 
549 Panel Reports, para. 6.305. 
550 Panel Reports, paras. 5.9 and 5.10. 
551 Panel Reports, para. 5.11. 
552 Panel Reports, para. 5.12. 
553 See Appellate Body Report, EC – Export Subsidies on Sugar , para. 331. 
554 Appellate Body Report, Canada – Wheat Exports and Grain Imports , para. 133. (emphasis original) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  resolve the matter in issue in the dispute"555, and panels "may refrain from ruling on every claim 
as long as it does not lead to a 'partial resolution of the matter'."556 Nonetheless, the 
Appellate Body has cautioned that "[t]o provide only a partial resolution of the matter at issue would be false judicial economy", and that "[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.'"
557 
5.191.  Thus, in order to succeed in its claim on appeal, Japan must show that the Panel provided 
only a "partial resolution of the matter at issue" or that an additional finding with respect to Japan's claim under Article X:1 of the GATT 1994 "is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance"
558 by 
Argentina with those recommendations and rulings. 
5.192.  Japan argues that panels may not exercise judicial economy with respect to provisions 
whose "scope and content" are different from those under which findings are made, as this would 
prevent an effective resolution of the dispute. Japan relies on the Appellate Body report in  
US – Tuna II (Mexico)  to support its position.559 Japan contends that, in this dispute, the "scope 
and content" of Article X:1 of the GATT 1994, whic h relates to the administration of measures, is 
different from the "scope and content" of Articles  III:4 and XI:1 of the GATT 1994, which relate to 
the substantive content of measures. It follows, for Japan, that the Panel was required to address Japan's Article X:1 claim against the TRRs measure.
560  
5.193.  Argentina considers that Japan's reliance on the Appellate Body's findings in US – Tuna II 
(Mexico)  is misplaced because, in Argentina's view, the "scope and content" of Article X:1 of the 
GATT 1994 overlaps with the "scope and content"  of Articles III:4 and XI:1 of the GATT 1994.561 
In addition, Argentina argues that Japan is inco rrect in arguing that a panel engages in false 
judicial economy every time that the "scope and content" of the legal provision on which it declines 
to rule is not the same as the "scope and content" of the legal provision on which it does rule.562 
5.194.  In our view, the fact that two provisions ha ve a different "scope and content" does not, in 
and of itself, imply that a panel must addre ss each and every claim under those provisions. 
                                               
555 Appellate Body Reports, US – Wool Shirts and Blouses , p. 19, DSR 1997:I, p. 340; US – Tuna II 
(Mexico) , para. 403. 
556 Appellate Body Reports, US – Upland Cotton , para. 732; US – Tuna II (Mexico) , para. 404. 
557 Appellate Body Report, Australia – Salmon , para. 223. (fns omitted) For instance, in  
Australia – Salmon , the Appellate Body considered that the fact  that the panel made findings concerning a 
violation of Article 5.1 of the Agreement on the Ap plication of Sanitary and Phytosanitary Measures 
(SPS Agreement) with respect to certain Canadian salm on, without findings under Articles 5.5 and 5.6 of the 
SPS Agreement, would not enable the DSB to make suffi ciently precise recommendati ons and rulings so as to 
allow for compliance by Australia with its obligati ons under the SPS Agreement. (Ibid., para. 224) The 
Appellate Body reached a similar conclusion in EC – Export Subsidies on Sugar , explaining that findings under 
Articles 3 and 8 of the Agreement on Agriculture  were not sufficient to "fully resolve" that dispute because, by 
declining to rule on the claims under Article 3 of the SCM Agreement, that panel precluded the possibility of a remedy being made available, pursuant to Article 4.7 of the SCM Agreement, in the event of a finding of 
inconsistency under Article 3 of the SC M Agreement. (Appellate Body Report, EC – Export Subsidies on Sugar , 
para. 335) 
558 Appellate Body Report, Australia – Salmon , para. 223. See also Appellate Body Reports, EC – Export 
Subsidies on Sugar , paras. 322 and 331; Canada – Wheat Exports and Grain Imports , para. 133; US – Upland 
Cotton , para. 732; and Canada – Renewable Energy / Canada – Feed-in Tariff Program , para. 5.93. 
559 Japan's other appellant's submission, para . 12 (referring to Appellate Body Report, US – Tuna II 
(Mexico) , para. 405). 
560 Japan's other appellant's submissi on, paras. 4, 9, and 13 (referri ng to Appellate Body Report,  
EC – Poultry , para. 115). 
561 Argentina's appellee's submission , para. 23. Argentina argues that the entire universe of "laws, 
regulations, judicial decisions and administrative rulings" subject to Article X:1 falls within the scope of "other measures" covered by Article XI:1 of the GATT 1994, and that the content of these provisions substantially 
overlap. (Ibid., para. 24) 
562 Argentina recalls that, in US – Zeroing (EC) , the Appellate Body concluded that, having made 
findings of inconsistency under Article 2.4.2 of the Agr eement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), the panel in that dispute did not err in 
refraining from making additional findin gs under Articles 2.4 and 9.3 of the Anti-Dumping Agreement. Yet, in 
Argentina's view, the "scope and content" of those provisions are unequi vocally distinct. (Arg entina's appellee's 
submission, para. 25 (referring  to Appellate Body Report, US – Zeroing (EC) , para. 250)) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Indeed, if this were so, then only in the rarest of circumstances would a panel be able to exercise 
judicial economy on a claim. As the Appellate Body has explained in previous disputes, what 
should guide panels in their decision to exercise  judicial economy is the need to address all of 
those claims whose resolution is necessary to resolve the dispute so as to avoid a partial resolution 
of the dispute. 
5.195.  We note that there is a key difference between the situation in the present dispute and the 
situation that was before the Appellate Body in US – Tuna II (Mexico) . In this dispute, the Panel 
made a finding of inconsistency  under Article XI:1 of the GATT 1994, before exercising judicial 
economy with respect to a claim under Article X:1 of the GATT 1994. In contrast, in US – Tuna II 
(Mexico) , the panel made no finding of inconsistency  under Article 2.1 of the Agreement on 
Technical Barriers to Trade (TBT Agreement), before  exercising judicial economy with respect to 
claims under Articles I:1 and III:4 of the GATT 1994. We recognize that, in US – Tuna II (Mexico) , 
the Appellate Body disagreed with the panel that the obligations under Articles I:1 and III:4 of the 
GATT 1994, on the one hand, and Article 2.1 of the TBT Agreement, on the other hand, were 
"substantially the same". This was, however, not the basis for the Appellate Body's ruling against 
the panel's exercise of judicial economy. Rather , after recalling that panels need address only 
"those claims on which a finding is necessary in order to enable the DSB to make sufficiently 
precise recommendations and rulings"563, the Appellate Body concluded that the panel had not 
made sufficient findings and, for that reas on, had exercised "false judicial economy".564 
5.196.  Japan also contends that the exercise of judicial economy would fail to ensure the effective 
resolution of disputes where compliance obligations arising from different claims are not identical 
and actions that would result in compliance with one finding would not necessarily result in 
compliance with the other finding.565 Japan argues that its "Article X:1 claim is aimed at making 
Argentina undertake implementing actions in a transparent manner, which is different from and 
could go beyond what is required by implementing actions under Articles XI:1 and III:4 claims."566 
Japan adds that the transparency obligations und er Article X:1 of the GATT 1994 are particularly 
important in the circumstances of this dispute. Japan contends that, given the opaque and 
non-transparent nature of the TRRs measur e, without the publication of the current 
GATT-inconsistent TRRs measure, it may be uncle ar to economic operators whether, when, and 
how the TRRs measure has been fully removed or rectified.567 
5.197.  We note some ambiguity in Japan's arguments, which may be understood to refer to the 
publication of: (i) any implementing measures that may be adopted by Argentina to bring the 
TRRs measure into conformity with Articles III:4 and XI:1 of the GATT 1994; or (ii) the current GATT-inconsistent TRRs measure. 
5.198.  We disagree with Japan's argument to the extent that it may be understood as suggesting 
that a finding under Article X:1 of the GATT 1994 is necessary to ensure that Argentina is subject to an obligation to publish promptly any implemen ting measures that may be adopted to bring the 
TRRs measure into conformity wi th the GATT 1994. In our view, the obligation to publish promptly 
any new or modified laws of general application does not stem from the implementation of a finding of inconsistency of the current TRRs measure with Article X:1. Rather, for any new or modified implementing measures that fall within the scope of Article X:1, the publication obligation 
stems from Article X:1 itself. While the implementation of DSB recommendations and rulings under 
Articles III:4 and XI:1 of the GATT 1994 may require changes to the TRRs measure in order for Argentina to bring itself into compliance with those provisions, compliance with a finding of 
inconsistency under Article X:1 would lead only to publication of the existing measure. 
5.199.  We note that Japan's arguments may also be understood to refer to the publication of the 
current GATT-inconsistent TRRs measure. Japan co ntends that accepting the Panel's exercise of 
judicial economy would fail to ensure effective resolution of the dispute, considering that the 
compliance obligations arising from findings under Articles III:4 and XI:1 of the GATT 1994, on the one hand, and under Article X:1 of the GATT 1994, on the other hand, are not identical. We recall, 
                                               
563 Appellate Body Report, US – Tuna II (Mexico) , para. 403 (quoting Appellate Body Report,  
Australia – Salmon , para. 223). 
564 Appellate Body Report, US – Tuna II (Mexico) , para. 405. 
565 Japan's other appellant's submission, para. 14. 
566 Japan's other appellant's submission, para. 4. 
567 Japan's opening statement at the oral hearing; Japa n's response to questioning at the oral hearing. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  in this connection, that the Panel considered that, given its findings of inconsistency with 
Articles III:4 and XI:1, the issue of "whether Argentina published its measures in a manner consistent with Article X:1 … was no longer relevant for purposes of resolving this dispute."
568  
5.200.  The Panel recommended that the DSB request Argentina to bring the TRRs measure into 
conformity with its obligations under Ar ticles III:4 and XI:1 of the GATT 1994.569 Argentina might 
have different ways to implement the recommendations and rulings of the DSB to bring the TRRs measure into conformity with the GATT 1994. Japa n argues that, absent publication of the TRRs 
measure, it may be unclear to economic operators whether, when, and how the TRRs measure has 
been fully removed or rectified.
570 However, to the extent that Argentina will have to modify or 
withdraw the TRRs measure to comply with the recommendations under Articles III:4 and XI:1, the TRRs measure – in its current form and with its current content – will cease to exist. 
Accordingly, we fail to understand how the publication of this WTO-inconsistent measure would 
contribute to securing a positive solution to this dispute.  
5.201.  Finally, Japan suggests that the publication of the current TRRs measure is necessary for 
Japan and economic operators to verify Argentina's compliance with the obligations under 
Articles III:4 and XI:1 of the GATT 1994. In this re spect, we consider that the elaboration of the 
content of the current TRRs measure, set out in some detail in the Panel Reports, will assist the 
complainants, other Members, and interested econ omic operators in assessing Argentina's actions 
to bring the TRRs measure into conformity with Argentina's obligations under the GATT 1994. 
5.202.  In the light of the above, we do not consider that Japan has demonstrated that requiring 
Argentina to publish the current GATT-inconsistent TRRs measure is necessary to secure a positive 
solution to this dispute. Although it could have been useful if the Panel had elaborated upon its 
reasoning for considering that the publication of the TRRs measure was "no longer relevant", we are not persuaded that the Panel's exercise of judicial economy with respect to Japan's claim under 
Article X:1 of the GATT 1994 against the TRRs measure provides only a "partial resolution of the 
matter at issue". Nonetheless, we recall that, purs uant to Article X:1, all trade-related measures, 
including unwritten  measures, constituting "[l]laws, regulations, judicial decisions and 
administrative rulings of general application" that  are made effective by a Member and that pertain 
to the subject-matters identified in the first senten ce of Article X:1 "shall be published promptly in 
such a manner as to enable governments and traders to become acquainted with them." 
5.203.  For the above reasons, we find that Japan has not established that the Panel erred, in 
paragraph 6.305 of the Panel Reports and paragraph 7.9.g of the Japan Panel Report, in exercising 
judicial economy on Japan's claim that the TRRs measure is inconsistent with Article X:1 of the GATT 1994. Given that we have not found that the Panel's exercise of judicial economy at issue 
was improper, we also reject Japan's request that we complete the analysis and find that the TRRs 
measure is inconsistent with Argentina's obligations under Article X:1 of the GATT 1994. 
5.2.5  Overall conclusions on the TRRs measure 
5.204.  In the light of all of the above, we find that, in addressing the joint claims by the three 
complainants against the TRRs measure, the Panel correctly established the existence of a TRRs measure, composed of several interlinked individual TRRs and exhibiting several characteristics, in particular its systematic and continued application. In doing so, the Panel did not err in the criteria 
that it used to determine whether such measure exists. For these reasons, we uphold the Panel's 
finding, in paragraph 6.231 of the Panel Reports, paragraph 7.1.d of the EU Panel Report, 
paragraph 7.5.c of the US Panel Report, and paragraph 7.9.d of the Japan Panel Report, that "the 
Argentine authorities' imposition on economic operators of one or more of the five requirements 
identified by the complainants as a condition to import or to obtain certain benefits, operates as a single measure (the TRRs measure) attributable to Argentina". 
5.205.  As a consequence, we also uphold the Panel's finding, in paragraph 6.265 of the 
Panel Reports, paragraph 7.1.e of the EU Panel Report, paragraph 7.5.d of the US Panel Report, 
and paragraph 7.9.e of the Japan Panel Report, "that the TRRs measure, consisting of the Argentine authorities' imposition of one or more of the five requirements identified by the 
                                               
568 Panel Reports, para. 5.12. 
569 Japan Panel Report, para. 7.12. 
570 Japan's opening statement at the oral hearing; Japa n's response to questioning at the oral hearing. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  complainants as a condition to import, constitutes a restriction on the importation of goods and is 
thus inconsistent with Article XI:1 of the GATT 1994", as well as the Panel's finding, in paragraph 6.295 of the Panel Reports, that "the TRRs measure, with respect to the local content requirement, is inconsistent with Article III:4 of the GATT 1994" because it "modifies the 
conditions of competition in the Argentine market to the detriment of imported products" so that 
"imported products are granted less favourable treatment than like domestic products". 
5.206.  We also find that Argentina has not established that, in addressing Japan's "as such" 
claims, the Panel acted inconsistently with Article 11 of the DSU, and that Japan has not 
established that the Panel erred in exercising ju dicial economy, in paragraph 6.305 of the Panel 
Reports and paragraph 7.9.g of the Japan Panel Repo rt, on Japan's claim that the TRRs measure is 
inconsistent with Article X:1 of the GATT 1994.  
5.3  The DJAI procedure: Articles VIII and XI:1 of the GATT 1994 
5.3.1  Introduction 5.207.  We now turn to Argentina's appeal in connection with the DJAI procedure.
571 Argentina 
raises three claims of error in connection with the Panel's analysis of whether the DJAI procedure 
is inconsistent with Article XI:1 of the GATT 1994. Argentina contends that the Panel erred in its assessment of the scope of Article VIII of the GATT 1994 and, in particular, in allegedly suggesting 
that this provision does not encompass import pr ocedures that are a "necessary pre-requisite for 
importing goods".
572 In addition, Argentina contends that the Panel failed to establish and apply a 
proper analytical framework for distinguishing be tween the scope and disciplines of Article VIII of 
the GATT 1994, on the one hand, and Article XI:1 of the GATT 1994, on the other hand.573 Finally, 
Argentina claims that the Panel erred in concluding that, because the approval of a DJAI is not 
"automatic", the DJAI procedure is inconsistent with Article XI:1.574 Argentina contends that the 
mere fact that an import formality or requirement does not result in the "automatic" importation of 
goods does not render it a restriction under Article XI:1.575  
5.208.  Thus, Argentina requests us: (i) to modify or reverse the Panel's findings, in 
paragraph 6.433 of the Panel Reports, concerning  the scope of Article VIII of the GATT 1994; 
(ii) to modify the Panel's reasoning in paragraphs 6.435 through 6.445 of the Panel Reports, and 
to find that import formalities and requirements can only be found to be inconsistent with Article XI:1 of the GATT 1994 where it is demonstrated that: (a) the formality or requirement limits the quantity or amount of imports to a ma terial degree that is separate and independent of 
the trade-restricting effect of any substantive rule  of importation that the formality or requirement 
implements; and (b) this separate and independent trade-restricting effect is greater than the effect that would ordinarily be associated with a formality or requirement of its nature; and (iii) to 
reverse the Panel's finding in paragraph 6.474 of the Panel Reports, as well as the Panel's ultimate 
finding that the DJAI procedure is inconsistent with Article XI:1 of the GATT 1994.
576  
5.209.  Before examining Argentina's claims, we  summarize pertinent aspects of the Panel's 
interpretation of Article XI:1 of the GATT 1994.  We then set out our understanding of certain 
issues relating to the interpretation of discrete elements of Article XI:1. Thereafter, we examine 
Argentina's claims of error in respect of the Panel' s interpretation of Article XI:1 and the scope of 
Article VIII. In the last part of this section,  we summarize the Panel's findings regarding the 
application of Article XI:1 to the DJAI procedure,  and we then examine Argentina's claim that the 
Panel erred in concluding that, because the approval of a DJAI is not "automatic", the DJAI procedure is inconsistent with Article XI:1. 
                                               
571 The Panel's explanation of the DJAI procedure is summarized above in section 4.2 of these Reports. 
572 Argentina's appellant's submission, para. 206. 
573 Argentina's appellant's submission, para. 206. 
574 Argentina's appellant's submission, para. 206. 
575 Argentina's appellant's submission, para. 239. 
576 Argentina's appellant's submission, paras. 219, 223, 236, 242, and 243.3. With respect to the 
Panel's ultimate finding that the DJAI procedure is inconsistent with Article XI:1 of the GATT 1994, Argentina 
refers to paragraph 6.479 of the Panel Reports, paragrap h 7.2.a of the EU Panel Report, paragraph 7.6.a of the 
US Panel Report, and paragraph 7. 10.a of the Japan Panel Report. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5.3.2  The Panel's findings in connection with  the interpretation of Article XI:1 of the 
GATT 1994 
5.210.  Before the Panel, the complainants claime d that the DJAI procedure is inconsistent with 
Article XI:1 of the GATT 1994 because it constitutes a restriction on the importation of products.577 
Argentina responded that the DJAI procedure is not subject to the disciplines of Article XI:1. 
According to Argentina, the DJAI procedure is used as a customs risk assessment tool by which Argentina assesses and manages the risk of non- compliance with Argentina's customs laws and 
regulations prior to customs clearance, and was adopted in line with the World Customs 
Organization (WCO) SAFE Framework of Standards to Secure and Facilitate Global Trade (WCO SAFE Framework).
578 As such, Argentina contended that the DJAI procedure is a formality or 
requirement imposed in connection with importatio n subject to Article VIII of the GATT 1994. For 
Argentina, because Articles VIII and XI:1 have mutually exclusive scopes of application, the 
DJAI procedure is subject to only the former of these two provisions.579  
5.211.  In examining this claim and addressing Argentina's defence, the Panel began by briefly 
examining Article VIII of the GA TT 1994 and the question of whether the DJAI procedure is a 
customs risk assessment tool. Based on the respon ses that the WCO Secretariat provided to the 
questions that had been put to it580, the Panel expressed doubt as to whether the DJAI procedure 
is used as a customs risk assessment tool.581 The Panel also expressed the view that the 
DJAI procedure "is not a mere formality imposed by Argentina in connection with the importation of goods".
582 The Panel observed, nevertheless, that, even assuming that the DJAI procedure were 
a customs or import formality subject to Articl e VIII, the Panel would still need to determine 
whether this fact would exclude per se  the applicability of Article XI:1 of the GATT 1994. The Panel 
then turned to the interpretation of Article XI:1 to examine whether customs or import procedures or formalities that fall within the scope of Article VIII are excluded from the scope of 
Article XI:1.
583 
5.212.  The Panel set out its understanding of Article XI:1 of the GATT 1994 in different sections of 
the Panel Reports.584 The Panel noted that Article XI:1 imposes an obligation on Members not to 
institute or maintain import or export prohibitions or restrictions585, and does not distinguish 
between different categories of prohibitions or restrictions.586 The Panel understood the expression 
"or other measures" in Article XI:1 to mean that th is provision covers all measures that constitute 
prohibitions or restrictions other than measures that take the form of duties, taxes, or other 
charges.587 In addition, the Panel took the view that the term "restriction" is defined as a limiting 
condition that has restrictive effects on importation.588 The Panel considered, however, that "not 
any condition placed on importation is inconsistent with Article XI, but only those that have a 
limiting effect on imports".589 According to the Panel, the expression "on … importation" in 
Article XI:1 means a restriction "with regard to" or "in connection with" the importation of the product.
590 Finally, the Panel understood that it is not necessary to establish actual, quantifiable, 
                                               
577 Panel Reports, paras. 6.413, 6.415, 6.416, and 6.418. 
578 Argentina's first written submission to the Panel, paras. 191-193, 214, and 239-261; Panel Reports, 
para. 6.427. 
579 Argentina's first written submission to the Panel, paras. 155, 176-179, and 299; Panel Reports, 
paras. 6.419, 6.425, and 6.427. 
580 Panel Reports, paras. 1.37, 1.38, and 6.428. 
581 Panel Reports, para. 6.430. 
582 Panel Reports, para. 6.433. 
583 Panel Reports, paras. 6.434 and 6.444. 
584 The Panel examined Article XI:1 of the GATT 1994 in the context of: (i) its analysis of the claims 
against the TRRs measure at paragraphs 6.243 and 6.264 of the Panel Reports; (ii) its analysis of the relationship between Articles VIII an d XI:1 of the GATT 1994 at paragraphs  6.435-6.443 of th e Panel Reports; 
and (iii) its analysis of the claims against the DJAI procedure at paragraphs 6.449-6.478 of the Panel Reports. 
585 Panel Reports, paras. 6.440 and 6.449. 
586 Panel Reports, para. 6.435. 
587 Panel Reports, paras. 6.246, 6.248, 6.435, 6.440, 6.442, and 6.450 (referring to Panel Report, 
Argentina – Hides and Leather , para. 11.17; and GATT Panel Report, Japan – Semi-Conductors , para. 104). 
588 Panel Reports, paras. 6.251, 6.254, and 6.452 (referring to Appellate Body Reports, China – Raw 
Materials , para. 319; and Panel Reports, India – Quantitative Restrictions , paras. 5.128 and 5.129; and  
India – Autos , paras. 7.265, 7.269, and 7.270). 
589 Panel Reports, para. 6.253 (referring to Panel Reports, China – Raw Materials , para. 7.917). 
590 Panel Reports, para. 6.458 (quoting Panel Report, India – Autos , para. 7.257; and referring to Panel 
Report, Dominican Republic – Import  and Sale of Cigarettes , para. 7.261). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  negative effects on the overall level of imports to find that a measure is inconsistent with 
Article XI:1. Rather, to determine whether a measure imposes a "limiting condition" on imports, a panel must examine the design and structure of the measure at issue.
591  
5.213.  In addressing Argentina's specific defence to the claims under Article XI:1 of the 
GATT 1994 against the DJAI procedure, the Panel opined that Article VIII customs or import 
procedures or formalities are not excluded per se  from the scope of application of Article XI:1592, 
and that Articles VIII and XI:1 of the GATT 1994 do not impose mutually exclusive obligations.593 
In the Panel's view, the consistency of an import or customs formality or requirement could be 
assessed under either Article VIII or Article XI:1, or under both provisions.594 
5.3.3  Article XI:1 of the GATT 1994 5.214.  Argentina's appeal calls for us to consider certain issues relating to the interpretation of 
discrete elements of Article XI:1 of the GATT 1994 . In order to situate these elements properly 
within their broader context, we begin by setting out relevant aspects of our understanding of Article XI. 
5.215.  Article XI of the GATT 1994 provides, in relevant part: 
General Elimination of Quantitative Restrictions 
1. No prohibitions or restrictions other than duties, taxes or other charges, 
whether made effective through quotas, import or export licences or other measures, 
shall be instituted or maintained by any Member on the importation of any product of the territory of any other Member or on the exportation or sale for export of any product destined for the territory of any other Member. 
2. The provisions of paragraph 1 of this Ar ticle shall not extend to the following: … 
5.216.  Article XI:1 of the GATT 1994 lays down a general obligation to eliminate quantitative 
restrictions. It prohibits Members to institute or maintain prohibitions or restrictions other than 
duties, taxes, or other charges, on the importation, exportation, or sale for export of any product 
destined for another Member.  
5.217.  In China – Raw Materials , the Appellate Body observed that the term "prohibition" is 
defined as a "legal ban on the trade or importation of a specified commodity".
595 In that dispute, 
the Appellate Body also referred to the term "restriction" as "[a] thing which restricts someone or something, a limitation on action, a limiting condition or regulation" and, thus, generally, as something that has a limiting effect.
596 The use of the word "quantitative" in the title of Article XI 
of the GATT 1994 informs the interpretation of the words "restriction" and "prohibition" in 
Article XI:1, suggesting that the coverage of Article XI includes those prohibitions and restrictions that limit the quantity or amount of a product being imported or exported.
597 This provision, 
however, does not cover simply any restriction or prohibition. Rather, Article XI:1 refers to 
prohibitions or restrictions "on the importation … or on the exportation or sale for export". Thus, in our view, not every condition or burden placed on importation or exportation will be inconsistent 
with Article XI, but only those that are limiting, that is, those that limit the importation or 
                                               
591 Panel Reports, paras. 6.264, 6.451, and 6.476 (referring to Panel Reports, Argentina – Hides and 
Leather , para. 11.20; Colombia – Ports of Entry , paras. 7.240 and 7.252; and China – Raw Materials , 
paras. 7.915 and 7.1081). 
592 Panel Reports, paras. 6.435, 6.439, and 6.444. 
593 Panel Reports, paras. 6.436-6.439 and 6.443. 
594 Panel Reports, para. 6.443. 
595 Appellate Body Reports, China – Raw Materials , para. 319 (quoting Shorter Oxford English 
Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds.) (Oxford University Press, 2007), Vol. 2, p. 2363). 
596 Appellate Body Reports, China – Raw Materials , para. 319 (quoting Shorter Oxford English 
Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds.) (Oxford University Press, 2007), Vol. 2, p. 2553). 
597 Appellate Body Reports, China – Raw Materials , para. 320. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  exportation of products.598 Moreover, this limitation need not be demonstrated by quantifying the 
effects of the measure at issue; rather, such li miting effects can be demonstrated through the 
design, architecture, and revealing structure of the measure at issue considered in its relevant context. 
5.218.  Article XI:1 of the GATT 1994 prohibits prohibitions or restrictions other than duties, taxes, 
or other charges "made effective through quotas, import or export licences or other measures". The Appellate Body has described the word "effective", when relating to a legal instrument, as "in 
operation at a given time".
599 We note that the definition of the term "effective" also includes 
something "[t]hat is concerned in the production of an event or condition".600 Moreover, the 
Appellate Body has described the words "made effective", when used in connection with governmental measures, as something that may re fer to a measure being "operative", "in force", 
or as having "come into effect".
601 In Article XI:1, the expression "made effective through" 
precedes the terms "quotas, import or export licences or other measures". This suggests to us that the scope of Article XI:1 covers measures through which a prohibition or restriction is produced or 
becomes operative.
602 
5.219.  As noted by the Panel, while the term "or other measures" suggests a broad coverage603, 
the scope of application of Article XI:1 of the GATT 1994 is not unfettered. Article XI:1 itself 
explicitly excludes "duties, taxes and other charges"  from its scope of application. Article XI:2 of 
the GATT 1994 further restricts the scope of applic ation of Article XI:1 by providing that the 
provisions of Article XI:1 shall not extend to the areas listed in Article XI:2.604  
5.220.  We acknowledge that certain provisions of the GATT 1994, such as Articles XII, XIV, XV, 
XVIII, XX, and XXI, permit a Member, in certain sp ecified circumstances, to be excused from its 
obligations under Article XI:1 of the GATT 1994.605 In these provisions, express reference is made 
to the relationship of each provision with the obligations contained in Article XI:1606 or with the 
obligations under the GATT 1994 more generally.607 This is not to say that provisions not explicitly 
                                               
598 We note that our understanding of Article XI:1 of the GATT 1994 is supported by two provisions of 
the Import Licensing Agreement that suggest that certain import licensin g procedures may result in some 
burden without themselves having tr ade-restrictive effects on  imports. Footnote 4 of  the Import Licensing 
Agreement provides that "import licensing procedures requ iring a security which have no restrictive effects on 
imports are to be considered as falling within the scope of [Article 2]", which deals with automatic import licensing. In addition, Article 3.2 of the Import Licensing Agreement provides that, while "[n]on-automatic licensing shall not have trade-restrictive … effects on im ports additional to those caused by the imposition of 
the restriction", such procedures "sha ll be no more administratively burd ensome than absolutely necessary to 
administer the measure." 
599 Appellate Body Reports, China – Raw Materials , para. 356 (quoting Black's Law Dictionary , 9th edn, 
B.A. Garner (ed.) (West Group, 2009), p. 592). 
600 Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds.) (Oxford University 
Press, 2007), Vol. 1, p. 799. (emphasis original) 
601 Appellate Body Report, US – Gasoline , p. 20, DSR 1996:I, p. 19 (quoting The New Shorter Oxford 
English Dictionary on Historical Principles , L. Brown (ed.) (Clarendon Press, 1993), Vol. I, p. 786). 
602 Our understanding of Article XI:1 of the GATT 1994 is supported by the wording of the first sentence 
of Article 3.2 of the Import Licensin g Agreement, which provides that "[n]on-automatic licensing shall not have 
trade-restrictive or -disto rtive effects on imports additional  to those caused by the imposition of the 
restriction." (emphasis added) In our view, the first sentence of Article 3.2 of the Import Licensing Agreement 
also suggests an examination of whether a restriction is produced or caused through the measure at issue 
itself, which seems to support our understanding of th e relevant part of Article XI:1 of the GATT 1994. 
603 See Panel Reports, paras. 6.246, 6.435, and 6.450. 
604 Article XI:2 of the GATT 1994 provides, in relevant part, that the provisions of Article XI:1 shall not 
extend to the following: 
(a) Export prohibitions or restrict ions temporarily applied to prevent or relieve critical shortages 
of foodstuffs or other products essent ial to the exporting contracting party; 
(b) Import and export prohibitions  or restrictions necessary to the application of standards or 
regulations for the classification, grading or  marketing of commodities in international 
trade; 
(c) Import restrictions on any agricultural or fisheries product, imported in any form,* 
necessary to the enforcement of governmental measures which operate: … 
605 See Appellate Body Report, Argentina – Textiles and Apparel , para. 73. 
606 See e.g. Article XII:1 of the GATT 1994, which authorizes certain restrictions to safeguard the 
balance of payments, and starts with the phrase "[ n]otwithstanding the provisions of paragraph 1 of 
Article XI". 
607 See e.g. Article XV:9 of the GATT 1994, which provides that nothing in the GATT 1994 shall preclude 
the use by Members of the exchange restrictions or controls defined therein. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  referring to the obligations contained in Article XI:1, or to the obligations under the GATT 1994 
more generally, do not contain elements that are relevant to their relationship with, and the interpretation of, Article XI:1. 
5.221.  We note that, even for those measures th at are expressly excluded or excused from the 
obligations contained in Article XI:1 of the GATT 1994, this is only the case to the extent that 
those measures satisfy all of the conditions specified for such treatment. For example, the scope of certain exclusions or exceptions is circumscribed with the imposition of certain conditions, often 
with reference to the concept of "necessity".
608 When a measure imposes a restriction or 
prohibition on the importation of goods, and such restriction or prohibition exceeds what is "necessary" for the authorized objective, or departs from the specified conditions, then such restriction or prohibition will violate the obligation contained in Article XI:1.
609 
5.222.  With this understanding in mind, we turn to consider the arguments made by Argentina on 
appeal that Article VIII of the GATT 1994 creates,  or operates as a form of, derogation or 
carve-out from the scope of the obligations under Article XI:1 of the GATT 1994.  
5.3.4  Argentina's claim that the Panel erred in  its interpretation of Article XI:1 of the 
GATT 1994 
5.223.  Turning to Argentina's appeal, we begin with its claim that the Panel erred in its 
interpretation of Article XI:1 of the GATT 1994 by failing to establish and apply a "proper analytical 
framework" for distinguishing between the scope and disciplines of Article VIII of the GATT 1994, 
on the one hand, and the scope and disciplines of Article XI:1, on the other hand.610 Argentina 
requests us to modify the Panel's reasoning in paragraphs 6.435 through 6.445 of the Panel 
Reports, and to find that import formalities and re quirements can be found to be inconsistent with 
Article XI:1 only where it is demonstrated that: (i) the formality or requirement limits the quantity or amount of imports to a material degree that is  separate and independent of the trade-restricting 
effect of any substantive rule of importation that the formality or requirement implements; and 
(ii) this separate and independent trade-restricting effect is greater than the effect that would ordinarily be associated with a formality or requirement of its nature.
611 
5.224.  We begin by noting the limited scope of Argentina's challenge to the Panel's interpretation 
of Article XI:1 of the GATT 1994. Argentina allege s that the Panel failed to recognize that an 
import formality or requirement could have some degree of trade-restricting effect that is "an ordinary incident of the formality or requirement itself" and that does not render the formality or 
requirement inconsistent with Article XI:1.
612 Argentina does not appeal any other specific 
elements or intermediary findings of the Panel's interpretation of Article XI:1.  
5.225.  Argentina makes two main arguments. First, Argentina argues that the scope of application 
of Articles VIII and XI:1 of the GATT 1994 are mutual ly exclusive. Second, Argentina argues that a 
harmonious interpretation of Articles VIII and XI:1 would require, at a minimum, some means of distinguishing the trade-restrictive effect of a formality or requirement itself from the 
                                               
608 See e.g. Articles XI:2(b), XI:2(c), XII:2(a), XIV:5(a), XV:9, and XX of the GATT 1994. 
609 In this regard, we note the following statement by the 1954-1955 Review Working Party on 
"Quantitative Restrictions": 
The Working Party … [considered th at it] might be useful … to re affirm that the maintenance or 
the application of a restriction which went beyo nd what would be "necessary" to achieve the 
objects defined in paragraph 2(b) or 2(c) of Article XI would be inconsistent with the provisions 
of that Article. This is made clear in the te xt of these provisions by the use of the word 
"necessary". Restrictions related to the appl ication of standards or regulations for the 
classification, grading or marketing of commodities in international trade which go beyond what is necessary for the application of those stan dards or regulations and thus have an unduly 
restrictive effect on trade, would clea rly be inconsistent with Article XI.  
(GATT Analytical Index: Guide to GATT Law and Pr actice, updated 6th edn (WTO, 1995), pp. 326-327 and 
fn 55 thereto (quoting WTO document L/332/Rev.1 and Addenda, adopted on 2, 4, and 5 March 1955, 
BISD 3S/170, pp. 189-190, para. 67)) 
We also note that Article XII:2(b) of the GA TT 1994 provides that Members "shall eliminate the 
restrictions when conditions would no longer justify th eir institution or maintenance under [subparagraph (a)]." 
610 Argentina's appellant's submission, para. 206. 
611 Argentina's appellant's submission, paras. 223, 236, and 243.3. 
612 Argentina's appellant's submission, paras. 232 and 234. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  trade-restrictive effect of any substantive rule of importation that the measure implements. We 
examine each of these arguments below. 
5.226.  Argentina argues that Articles VIII and XI of the GATT 1994 "must be interpreted as 
mutually exclusive in their respective spheres of application in order to ensure that Members are 
allowed to maintain the types of import formalit ies and requirements that Article VIII expressly 
contemplates."613 Argentina notes that "Article VIII expressly acknowledges the right of Members 
to maintain import formalities and requirements" and "recognizes the necessity of these 
measures", whereas Article XI categorically prohibits any type of measure that falls within its 
scope.614 Argentina contends that, by acknowledging "the need for minimizing the incidence and 
complexity of import and export formalities and for decreasing and simplifying import and export 
documentation requirements", the drafters of Arti cle VIII were aware that import formalities and 
requirements are potentially an impedime nt to trade, at least to some degree.615 In Argentina's 
view, if such effects rendered the measure a prohibited quantitative restriction under Article XI, then Members would be unable to maintain import formalities and requirements even though 
Article VIII recognizes the necessity of these measures.
616 
5.227.  The complainants argue that Articles V III and XI:1 of the GATT 1994 apply cumulatively 
where import formalities or requirements regulate the importation of products.617 The 
United States also submits that Article VIII does not limit the scope of Article XI of the GATT 1994, 
and that a restriction cannot escape scrutiny under the latter provision merely by being characterized as an Article VIII formality or requirement.
618 Japan and the United States also 
contend that Article VIII:1(c) of the GATT 1994 contains hortatory language and does not create 
an exception to Article XI:1.619 Finally, Japan notes that, where the treaty drafters intended to 
insert derogations from other Articles of the GATT 1994, they did so explicitly.620 
5.228.  We recall that the Panel only briefly ex amined Article VIII:4 of  the GATT 1994, and the 
meaning of the term "formality" in this provision.621 Without further examination of Article VIII of 
the GATT 1994, the Panel considered that, even a ssuming that the DJAI procedure were a customs 
or import formality subject to Article VIII, an exam ination of the applicability of Article XI:1 of the 
GATT 1994 would still be required. On this basis,  the Panel turned to the interpretation of 
Article XI:1.622 Given Argentina's argument that the scope of application of Articles VIII and XI:1 
are mutually exclusive, we consider it necessary to examine Article VIII in greater detail. Thus, we turn first to Article VIII of the GATT 1994. 
5.229.  We note that Article VIII of the GATT 1994 provides, in relevant part: 
Fees and Formalities connected with Importation and Exportation [] 
1. ( a) All fees and charges of whatever char acter (other than import and export 
duties and other than taxes within the purview of Article III) imposed by Members on 
or in connection with importation or exportation shall be limited in amount to the approximate cost of services rendered and sh all not represent an indirect protection to 
domestic products or a taxation of imports or exports for fiscal purposes. 
 ( b) The Members recognize the need for reducing the number and diversity of 
fees and charges referred to in subparagraph ( a). 
                                               
613 Argentina's appellant's submission, para. 205. 
614 Argentina's appellant's submission, para. 221. 
615 Argentina's appellant's submission, para. 221. 
616 Argentina's appellant's submission, para. 221. 
617 European Union's response to ques tioning at the oral hearing; Unit ed States' appellee's submission, 
paras. 58-60; Japan's appellee's submission, para. 122. 
618 United States' appellee's submission, paras. 59, 60, and 65. 
619 United States' appellee's submission, para. 66; Ja pan's appellee's submissi on, paras. 117 and 121. 
620 Japan's appellee's submission, para. 119. 
621 See Panel Reports, paras. 6.431 and 6.432. Subs equently, the Panel restated the disciplines 
contained in Article VIII of the GATT 1994. See ibid., para. 6.441. 
622 Panel Reports, paras. 6.434 and 6.435. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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   ( c) The Members also recognize the need for minimizing the incidence and 
complexity of import and export formalities and for decreasing and simplifying import and export documentation requirements.[] 
2. A Member shall, upon request by another Member or by the Ministerial 
Conference, review the operation of its la ws and regulations in the light of the 
provisions of this Article. 
3. No Member shall impose substantial penalties for minor breaches of customs 
regulations or procedural requirements. In particular, no penalty in respect of any 
omission or mistake in customs documentation which is easily rectifiable and obviously made without fraudulent intent or gross negligence shall be greater than necessary to serve merely as a warning. 
4. The provisions of this Article shall extend to fees, charges, formalities and 
requirements imposed by governmental authorities in connection with importation and exportation, including those relating to: 
(a) consular transactions, such as consular invoices and certificates; 
(b) quantitative restrictions; 
(c) licensing; 
(d) exchange control; 
(e) statistical services; 
(f) documents, documentation and certification; 
(g) analysis and inspection; and 
(h) quarantine, sanitation and fumigation. 
5.230.  We consider that Article VIII of the GATT 1994 imposes three clear obligations on 
Members. First, Article VIII:1(a) provides that all fees and charges, other than import and export 
duties and internal taxes under Article III of th e GATT 1994, shall be limited in amount to the 
approximate cost of services rendered, and shall not represent an indirect protection to domestic production or a taxation of imports or exports for fiscal purposes. Second, Article VIII:2 provides 
that, upon request, a Member shall review the oper ation of its laws and regulations in the light of 
Article VIII. Finally, Article VIII:3 provides that, inter alia , no Member shall impose substantial 
penalties for minor breaches of customs regulations or procedural requirements. 
5.231.  By contrast, Articles VIII:1(b) and VIII:1(c) do not appear to us to impose mandatory 
obligations. Rather, in dealing, respectively, with (i) fees and charges and (ii) formalities and 
documentation requirements, the language of these two provisions is more hortatory in nature. Unlike the provisions discussed above, neither of these two subparagraphs uses the mandatory 
verb "shall". Instead, Members "recognize the need" to do something. Nor do these provisions 
speak of a prohibition. Instead, they refer to "reducing", "minimizing", "simplifying", and "decreasing" the number, diversity, and complexity of fees, charges, formalities, and 
documentation requirements. Article VIII:1(c), in particular, provides that Members recognize the 
need for minimizing the incidence and complexity of import and export formalities and for decreasing and simplifying import and export documentation requirements. 
5.232.  Finally, Article VIII:4 outlines the scope of Article VIII, setting forth that the provisions of 
Article VIII shall extend to fees, charges, formal ities, and requirements imposed by governmental 
authorities in connection with importation and exportation. Article VIII:4 also provides an illustrative list of the types of measures to which these fees, charges, formalities, and 
requirements may relate. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5.233.  Argentina's argument relies on the langua ge in Article VIII:1(c) of the GATT 1994. We do 
not necessarily disagree with Argentina that the reference, in Article VIII:1(c), to the "need for minimizing the incidence and complexity of import  and export formalities and for decreasing and 
simplifying import and export documentation requ irements" implies a recognition by Members that 
import formalities and requirements can have trade-restricting effects, at least to some degree.
623 
We also accept that Article VIII:1(c) constitutes context for the interpretation of Article XI:1 of the GATT 1994, and for what amounts to a restriction on importation within the meaning of the latter 
provision. Yet, such language does  not suffice to establish the type of carve-out or derogation from 
Article XI:1 that Argentina seems to envisage for formalities and requirements referred to in Article VIII of the GATT 1994. To the contra ry, the general and hortatory language of 
Article VIII:1(c) stands in contrast to, for exam ple, the language of Article VIII:1(a) of the 
GATT 1994. The mandatory language used in Articl e VIII:1(a) makes clear that fees and charges 
imposed in connection with importation will be consistent with the obligation set down in that provision only when such fees and charges meet the specific conditions prescribed therein, that is, 
when they are limited in amount to the approx imate cost of services rendered and do not 
represent an indirect protection to domestic products or a taxation of imports for fiscal purposes.  
5.234.  The language of Article VIII:1(c) of the GA TT 1994 differs from that of Article VIII:1(a) of 
the GATT 1994 in another important respect. Article VIII:1(a) explicitly excludes from the scope of 
its application import duties (covered by Article II of the GATT 1994
624), export duties, and taxes 
falling within the scope of Article III of the GATT 1994. In contrast, Article VIII:1(c) does not contain express language identifying its relationship with other provisions of the GATT 1994.  
5.235.  Similarly, the language of Article VIII:1(c)  of the GATT 1994 also stands in opposition to 
that of other provisions of the GATT 1994 that ex clude or excuse measures from the obligation 
under Article XI:1 of the GATT 1994. As prev iously explained, where the GATT 1994 permits 
Members to adopt a particular type of restrict ion on the importation of goods, the relevant 
provisions typically refer to the relationship with the obligations contained in Article XI:1 or the obligations under the GATT 1994 more generally. In this connection, Argentina has not identified 
any language in Article VIII or Article XI:1 that somehow authorizes Members to apply import 
formalities and requirements that amount to restrictions on the importation of goods.
625 
5.236.  Lastly, to the extent that Argentina's argument may imply the existence of a conflict 
between Articles VIII and XI:1 of the GATT 1994, Argentina has identified no specific obligation or 
language in Article VIII that allegedly conflicts with the general obligation in Article XI:1 to 
eliminate quantitative restrictions. Nor has Argentina explained its understanding of such a conflict.
626 As the Appellate Body has held in previous disputes, and as noted by the Panel627, the 
provisions of the WTO covered agreements should be interpreted in a coherent and consistent 
manner, giving meaning to all applicable provisions harmoniously.628 
5.237.  For all of these reasons, we agree with the Panel that formalities or requirements under 
Article VIII of the GATT 1994 are not excluded per se  from the scope of application of Article XI:1 
of the GATT 1994, and that their consistency co uld be assessed under either Article VIII or 
                                               
623 Argentina's appellant's submission, para. 221. 
624 Article II of the GATT 1994, which concerns the imposition of import duties, also contains language 
elucidating the relationship between the scope of cove rage of the obligations thereunder and of those in 
Article VIII of the GATT 1994. Article II:2(c) of the GATT 1994 provides that nothing in Article II shall prevent 
a Member from imposing at any time on the importatio n of any product "fees or other charges commensurate 
with the cost of services rendered". 
625 We recall that, as noted above, there are no explicit cross-references  concerning the general 
relationship between "prohibitions or restrictions" under Article XI:1 of the GATT 1994 and "formalities" or "requirements" under Article VIII of the GATT 1994. 
626 We note that past panels have taken different view s on the notion of conflict in international law. 
(See e.g. Panel Reports, EC – Bananas III , para. 7.159; and Indonesia – Autos , fn 649 to para. 14.28) 
627 Panel Reports, para. 6.437. 
628 Appellate Body Reports, EC – Seal Products , para. 5.123; US – Anti-Dumping and Countervailing 
Duties (China) , para. 570; and US – Upland Cotton , para. 549 (quoting Appellate Body Report,  
Argentina – Footwear (EC) , para. 81 and fn 72 thereto, in turn re ferring to Appellate Body Reports,  
Korea  – Dairy , para. 81; US – Gasoline , p. 23, DSR 1996:I, p. 21; Japan – Alcoholic Beverages II , p. 12, 
DSR 1996:I, p. 106; and India – Patents (US) , para. 45). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  Article XI:1, or under both provisions.629 Thus, we reject Argentina's argument that Articles VIII 
and XI:1 have mutually exclusive spheres of application. 
5.238.  We turn now to Argentina's second argument. Argentina argues that a harmonious 
interpretation of Articles VIII and XI:1 of th e GATT 1994 would require, at a minimum, some 
means of distinguishing the trade-restrictive effect  of a formality or requirement itself from the 
trade-restrictive effect of any substantive rule of importation that the measure implements.630 In 
Argentina's view, this harmonious interpretation must provide a basis for identifying the point at 
which an Article VIII import formality or requirement becomes a prohibited "quantitative 
restriction" under Article XI:1.631 Argentina proposes that, for an import formality or requirement 
to be found to constitute an Article XI:1 restrictio n, in its own right, then it must be shown that: 
(i) the formality or requirement limits the quanti ty of imports to a material degree that is 
independent of the trade-restricting effect of any substantive rule of importation that the formality 
or requirement implements; and (ii) this independent trade-restricting effect is greater than the effect that would ordinarily be associated with a formality or requirement of its nature.
632 
Argentina purports to find support for its proposed approach in the reasoning employed by the 
panels in Korea – Various Measures on Beef  and China – Raw Materials .633 
5.239.  The complainants contend that Argentina's analytical framework is not applicable to these 
disputes because, while the framework is intended  to determine whether an import formality or 
requirement constitutes a restriction under Article XI:1 of the GATT 1994, the complainants' claims 
do not concern import formalities or requirements. Rather, the complainants' claims concern the DJAI's discretionary system of authorization of imports that, on its face, does not implement a 
separate WTO-consistent restriction.
634 The European Union and Japan also argue that Argentina's 
proposed analytical framework has no textual basis in the GATT 1994.635 Finally, the complainants 
submit that the panel reports in Korea – Various Measures on Beef  and China – Raw Materials  do 
not support Argentina's proposed analytical framew ork, and stand only for the proposition that, for 
purposes of Article XI:1, the challenged measures themselves, as opposed to any underlying restriction such as a quota, must restrict the importation of products.
636 
5.240.  At the outset, we note that Argentina has not identified a specific legal basis for its 
analytical framework to determine whether an import formality or requirement constitutes a "restriction" under Article XI:1 of the GATT 1994. Argentina does not point to the text of either 
Article XI:1 or Article VIII of the GATT 1994 as support for its proposed analytical framework. 
Moreover, despite Argentina's contention to the contrary
637, Argentina's two-step proposal is not 
set out in or implied by the reasoning employed by the panels in Korea – Various Measures on 
Beef and China – Raw Materials . Rather, as argued by the complainants, these panel reports stand 
for the proposition that, for purposes of Article XI:1, the challenged measures themselves must 
                                               
629 Panel Reports, paras. 6.435, 6.439, 6.443, and 6.444. 
630 Argentina's appellant's submission, para. 222. 
631 Argentina's appellant's submission, para. 205. We also note Argentina's argument that it would be 
unnecessary for Article VIII:1(c) of the GATT 1994 to recognize the need for mini mizing the incidence and 
complexity of certain formalities and for decreasing and simplifying certain documentation requirements if such 
characteristics were prohibited per se  under Article XI:1 of the GATT 1994. (Argentina's appellant's submission, 
para. 221; response to questioning at the oral hearing) 
632 Argentina's appellant's submission, para. 223. 
633 Argentina's appellant's submission, para s. 225 and 226 (quoting Panel Reports, Korea – Various 
Measures on Beef , para. 782; and China – Raw Materials , para. 7.917). 
634 European Union's appellee's submission, paras. 177, 181, 188, and 189; United States' appellee's 
submission, paras. 57 and 81; Japan's appellee's submission, paras. 112 and 124. 
635 European Union's appellee's submission, para . 192; Japan's appellee's submission, para. 116. 
636 European Union's appellee's submission, para . 191; United States' appellee's submission, 
paras. 77-80; Japan's appellee's submission, paras. 126 and 127. 
637 Argentina's appellant's submission, paras. 224-226 (quoting Panel Reports, Korea – Various 
Measures on Beef , para. 782; and China – Raw Materials , para. 7.917). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  limit the importation of products, and the limitation caused by other measures should not be 
attributed to them.638 
5.241.  We further observe that some of the arguments raised by Argentina in this part of its 
appeal seem to suggest that the Panel's reasoning implies that any measure falling within the 
scope of Article VIII of the GATT 1994 would be prohibited per se  u n d e r  A r t i c l e  X I : 1  o f  t h e  
GATT 1994.639 We do not see that the Panel made any such suggestion. Indeed, as explained 
above, in setting out its understanding of Article XI:1, the Panel expressed the view that "not any 
condition placed on importation is inconsistent with Article XI, but only those that have a limiting 
effect on imports".640 In making this statement, the Panel agreed with and quoted from two 
previous panel reports, in which the panels also took the view that conditions or prerequisites placed on importation would be prohibited under Article XI:1 only where they have a limiting effect 
on importation.
641 Indeed, Argentina itself invokes the reasoning from one of those panel reports – 
China – Raw Materials  – in support of its position. Accordingly, it is clear to us that the Panel did 
not, as Argentina suggests, consider that any me asure that constitutes a fee or formality falling 
within the scope of Article VIII would necessarily be inconsistent with Article XI:1. 
5.242.  Argentina's appeal calls for us to examine whether and under what circumstances 
measures that qualify as "formalities" or "requirements" under Article VIII of the GATT 1994 may 
constitute "restrictions" under Article XI:1 of the GATT 1994. As we have explained above, not 
every condition or burden placed on importation or exportation will be prohibited by Article XI, but only those that are limiting, that is, those that limit the importation or exportation of products. 
5.243.  Formalities and requirements connected to importation that fall within the scope of 
application of Article VIII of the GATT 1994 typically involve the use of documentary and 
procedural tools to collect, process, and verify information in connection with the importation of products. Such import formalities and requiremen ts will often entail a certain burden on the 
importation of products. At the same time, such formalities and requirements are, at least to some 
extent, a routine aspect of international trade. Compliance with such formalities and requirements enables trade to occur within a Member's specific  regulatory framework. In our view, not every 
burden associated with an import formality or requirement will entail inconsistency with 
Article XI:1 of the GATT 1994. Instead, only those that have a limiting effect on the importation of 
products will do so.  
5.244.  Argentina requests us to find that the Panel should have followed an analytical framework 
similar to the one that Argentina proposes.
642 The first step of Argentina's proposed analytical 
framework would require a finding concerning whether an import formality or requirement limits the importation of products independently of any substantive restriction that such formality or 
requirement may implement. As explained above, Argentina purports to find support for its 
proposed approach in the reasoning employed by the panels in Korea – Various Measures on Beef  
and China – Raw Materials .
643 In our view, these panel reports stand for the proposition that, for 
                                               
638 We recall that the panel in Korea – Various Measures on Beef  did not agree with the United States' 
claim that a discretionary licensing system, used in co njunction with a quantitative restriction, necessarily 
provides some additional level of restriction over and above the inherent restriction on access created through 
the imposition of a quantitative restriction. Ultimately, the panel exercised judicial economy on the United States' claim. (See Panel Report, Korea – Various Measures on Beef , paras. 782 and 785) Similarly, the 
panel in  China – Raw Materials  concluded that import an d export licences, including those granted only upon 
meeting a certain prerequisite, may be, but are not necessarily, permissible under Article XI:1 of the GATT 1994. For that panel, the key issue was whether the li censing system is designed and operates such that, 
by its nature, it does not have a rest rictive or limiting effect  on importation or export ation. (Panel Reports, 
China – Raw Materials , paras. 7.917 and 7.918) 
639 Argentina's appellant's submission, para. 234. 
640 Panel Reports, para. 6.253. 
641 Panel Reports, paras. 6.252-6.254 (quoting Panel Reports, India – Autos , para. 7.270; and  
China – Raw Materials , para. 7.917). 
642 Argentina's appellant's submission , para. 236. As previously describ ed, Argentina proposes that, for 
an import formality or requirement to be found to consti tute an Article XI:1 restrictio n, in its own right, it must 
be shown that: (i) the formality or requirement limits th e quantity of imports to a material degree that is 
independent of the trade-restricting effect of any substantive rule of importation that the formality or 
requirement implements; and (ii) this independent trade-restrictin g effect is greater than  the effect that would 
ordinarily be associated with a formality or requirement of its nature. (Ibid., para. 223) 
643 Argentina's appellant's submission, paras. 224-226 (quoting Panel Reports, Korea – Various 
Measures on Beef , para. 782; and China – Raw Materials , para. 7.917). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  purposes of Article XI:1 of the GATT 1994, the challenged measures themselves must limit the 
importation of products, and the limitation caused by other measures should not be attributed to them.
644 Moreover, as noted by Argentina, this prop osed approach has some similarity with the 
one implied in the first sentence of Article 3.2 of  the Import Licensing Agreement, which provides 
that "[n]on-automatic licensing shall not have trade-restrictive or -distortive effects on imports 
additional to those caused by the imposition of the restriction."645 Without necessarily accepting 
Argentina's suggestion that such an analysis is mandated as the first part of a two-step approach, 
we observe that, in any event, this analysis is consistent with the understanding of Article XI:1 
that we have set out above. As we have explaine d, Article XI:1 covers measures through which a 
prohibition or restriction is produced or becomes operative. If an import formality or requirement does not itself limit the importation of products independently of the limiting effects of another 
restriction, then such import formality or requirement cannot be said to produce the limiting effect 
and, thus, it will not amount to a "restriction" captured by the prohibition in Article XI:1. 
5.245.  The second step in Argentina's proposed analytical framework would require a finding 
concerning whether any "independent trade-restricting effect" of an import formality or 
requirement is greater than the effect that would ordinarily be associated with a formality or requirement of its nature. Such an inquiry would, according to Argentina, provide a basis for 
identifying the point at which an import formality or requirement covered by Article VIII of the 
GATT 1994 becomes a prohibited "quantitative restriction" under Article XI:1 of the GATT 1994.
646 
Argentina neither identifies any textual basis for this proposed analytical step, nor provides any illustration of how this abstract and general legal test might be undertaken in practice. We are not 
persuaded that this element of Argentina's proposed analytical framework is useful or necessary. 
Rather, as explained above, we consider that the analysis under Article XI:1 must be done on a case-by-case basis, taking into account the import formality or requirement at issue and the 
relevant facts of the case. In the context of import formalities or requirements, Article XI:1 
requires an examination of whether those measures themselves produce a limiting effect on imports.  
5.246.  For the reasons set out above, we find that  the Panel did not err in its interpretation of 
Article XI:1 of the GATT 1994 by failing to esta blish and apply a "proper analytical framework" for 
distinguishing between the scope and disciplines of  Article VIII of the GATT 1994, on the one hand, 
and the scope and disciplines of Article XI:1, on the other hand. Consequently, we reject 
Argentina's request that we modify the Panel's reasoning in paragraphs 6.435 through 6.445 of 
the Panel Reports, and that we find that the Panel erred in failing to adopt a two-step analytical framework similar to the one that Argentina proposes. 
5.3.5  Argentina's claim that the Panel erred in its assessment of the scope of 
application of Article VIII of the GATT 1994 
5.247.  We now turn to Argentina's request that we modify or reverse certain aspects of the 
Panel's findings in paragraph 6.433 of the Panel Reports.
647 We note that Argentina appeals only 
the statements in paragraph 6.433 made by the Panel in its discussion of whether the DJAI 
procedure can be considered an import formality or requirement under Article VIII of the GATT 1994.
648 Argentina does not appeal the Panel's findings with respect to the operation of the 
DJAI procedure, or the Panel's characterization of  the DJAI procedure in the light of the Panel's 
understanding of the WCO SAFE Framework.649 Argentina also accepts that the Panel did not make 
an ultimate finding as to the applicability of Article VIII to the DJAI procedure.650 Nonetheless, 
Argentina contends that the statements in paragraph 6.433, in particular that a DJAI in "exit" 
status is a necessary prerequisite for importation and that the DJAI procedure determines the right 
                                               
644 See Panel Reports, Korea – Various Measures on Beef , para. 782; and China – Raw Materials , 
paras. 7.917 and 7.918. 
645 Argentina's appellant's submission, para. 241. 
646 Argentina's appellant's submission, para. 205. We note that it is also implicit in the first step of 
Argentina's proposed analytical framework that, for Ar gentina, the point at whic h an import formality or 
requirement becomes a restriction is wh en it limits the quantity of impo rts to a "material degree" that is 
independent of the trade-restricting effect of any substantive rule of importation that the formality or 
requirement implements. (Ibid., para. 223) 
647 Argentina's appellant's submission, para. 219. 
648 Argentina's appellant's submission, paras. 208-210. 
649 Panel Reports, paras. 6.428 and 6.430. 
650 Argentina's appellant's submission, paras. 208, 209, and 218. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  to import, reflect legal error.651 Argentina's challenge focuses on the alleged implications of the 
statements made in paragraph 6.433 as regards th e scope of application of Article VIII. Argentina 
considers that the Panel's understanding of th e scope of Article VIII influenced the Panel's 
conclusions: (i) regarding the relationship between  Articles VIII and XI:1 of the GATT 1994; and 
(ii) that any import formality or requirement that does not result in the "automatic" importation of 
goods is necessarily inconsistent with Article XI. Argentina submits that, if left uncorrected, these statements will create confusion and uncertainty concerning the interpretation and application of 
Article VIII.
652  
5.248.  The complainants argue that the Panel did not find that the DJAI procedure falls outside 
the scope of application of Article VIII of the GA TT 1994 simply because it is a prerequisite for 
importing goods.653 Rather, according to the complainants, the assertion that the DJAI procedure 
is a prerequisite for importing goods was just the starting point for the Panel's analysis. The 
complainants submit that this assertion must be read together with the detailed analysis in paragraphs 6.459 through 6.474 of the Panel Reports, where the Panel found that the 
DJAI procedure operates as a discretionary syst em of authorization of imports by which the 
Argentine authorities decide on an ad hoc  basis whether to grant the right to import to each 
applicant on the basis of criteria not specified in advance.
654 
5.249.  We recall that, before the Panel, Argentina argued that the DJAI procedure is a customs 
risk assessment tool and, as such, a formalit y or requirement imposed in connection with 
importation subject to Article VIII of the GATT 1994.655 In addressing Argentina's argument, and 
after having sought the assistance and expertise of the WCO Secretariat, the Panel expressed the 
view that certain important elements of the DJAI procedure are not consonant with the type of 
customs risk assessment tool envisaged under the WCO SAFE Framework.656 In addition, the Panel 
briefly examined the scope of application of Arti cle VIII and the meaning of  the term "formality". 
According to the Panel, "[i]n the context of Article VIII …, a formality can be considered to include 
all requirements that, although in appearance dire cted at a mere observance of forms, must be 
usually observed in connection with the importation or the exportation of goods."657  
5.250.  Thereafter, the Panel made the following statements in paragraph 6.433 of the Panel 
Reports: 
Even if the Panel were to accept that the DJAI procedure is used by AFIP as a 
"customs risk assessment tool", that is not the only manner in which the 
DJAI procedure is used. The Panel has noted that a DJAI in exit status is a necessary 
pre-requisite for importing goods into Argentina. It has also noted that a DJAI application may be subject to "observations" that will prevent the application from 
proceeding to exit status. In such case, the prospective importer will have to contact 
the agencies concerned and provide the info rmation that may be required. In some 
cases, the prospective importer may have to undertake certain trade-related 
commitments as a condition for the agency to lift the observation and to complete the 
DJAI procedure. Accordingly, the DJAI procedure is not directed at a mere observance of forms; it is not a mere formality imposed by Argentina in connection with the 
                                               
651 Argentina's appellant's submission, paras. 209-212. 
652 Argentina's appellant's submission, para. 218. 
653 European Union's appellee's submission, para. 174;  United States' appellee's submission, para. 57; 
Japan's appellee's submission, para. 112. 
654 European Union's appellee's submission, paras. 175  and 176; United States' appellee's submission, 
para. 57; Japan's appellee's submission, paras. 112, 127, and 134. 
655 Argentina's first written submission to the Panel, paras. 191 and 263; Panel Reports, paras. 6.419, 
6.425, and 6.427. 
656 In particular, the Panel noted that: (i) the risk s that Argentina seeks to prevent – breaches of 
internal laws and regulations governin g domestic economic affairs, public health, and the quality of products – 
are not directly related to terrorism-related risks; (ii)  the type of information requested by Argentina when a 
DJAI is "observed" is unrelated to information listed in the WCO SAFE Framework; and (iii) the time at which prospective importers are required to submit information,  i.e. prior to the issuance  of purchase orders, means 
that such information would not be useful to asse ss risks pursuant to the WCO SAFE Framework, which 
suggests that customs should not require information fo r maritime cargo to be submitted more than 24 hours 
before loading at port of departure. (See Panel Reports, para. 6.430) 
657 Panel Reports, para. 6.432. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  importation of goods. Rather, it is a procedure by which Argentina determines the 
right to import.658 
5.251.  Argentina challenges this reasoning by the Panel. Argentina takes issue, in particular, with 
the following two statements: (i) "a DJAI in exit status is a necessary pre-requisite for importing 
goods into Argentina"; and (ii) "the DJAI procedure … is not a mere formality imposed by 
Argentina in connection with the importation of goods … [r]ather, it is a procedure by which Argentina determines the right to import." Argentina argues that the "clear implication" of these 
statements, and of paragraph 6.433 of the Panel Reports as a whole, is that "the Panel considered 
any import procedure that is a 'necessary pre-requisite for importing goods' or by which a Member 'determines the right to import' to be outsid e the scope of Article VIII" of the GATT 1994.
659 As 
further evidence that this was the Panel's view, Argentina points to the Panel's contrasting of a 
procedure "directed at a mere observance of forms" with "a procedure by which Argentina 
determines the right to import", and its alleged implication that only the former falls within the scope of application of Article VIII.
660  
5.252.  Before engaging with these arguments raised  by Argentina, we consider it useful to make 
certain preliminary observations. First, we highlight that certain aspects of Argentina's argumentation seem to rest on assumptions that do not correspond, in fact, to the approach taken 
by the Panel, as set out in its Reports. In part icular, Argentina argues that the DJAI procedure 
consists exclusively of customs or import formalities. The Panel, however, did not seem to share this view. Indeed, the Panel expressed the view that the DJAI procedure is not a "mere formality" imposed by Argentina in connection with the importation of goods.
661 As explained below, we 
understand the Panel to have taken the view that, even if certain characteristics of the 
DJAI procedure correspond to import formalities, other characteristics of the DJAI procedure do not. Yet the Panel did not clearly express a view on either which elements of the DJAI procedure 
correspond to which types of measures, or whethe r individual elements of the DJAI procedure 
could be assessed separately. To some extent, the Panel's reticence to do so may be attributable to the way in which the parties presented their arguments. That is, none of the parties sought to 
separate and distinguish the different elements composing the DJAI procedure, including any of 
those possibly relating to import licensing procedures, underlying measures restricting the importation of goods, the discretion granted to certain Argentine agencies, particular formalities or requirements in connection with importation, or the TRRs measure. Rather, the complainants 
challenged the DJAI procedure as something other than a customs or import formality, and 
Argentina defended the DJAI procedure as a customs or import formality.
662 Possibly due to this 
difference in the positions of the parties, the Panel did not clearly outline its understanding of the 
nature of the DJAI procedure, or its component elements. Indeed, in several places in its Reports, 
the Panel seems to have structured its analysis so as to avoid doing so.  
5.253.  For example, when setting out the order of its analysis in respect of the DJAI procedure, 
the Panel decided to "first consider whether the DJAI is a customs formality imposed in connection 
with importation subject to Article VIII of the GATT 1994 and, if so, whether Article XI:1 of the GATT 1994 and the Import Licensing Agreement are not applicable".
663 Yet, after assessing the 
scope of Article VIII, the Panel made no clear ruling in this regard, and instead decided to proceed 
to examine the DJAI procedure under Article XI:1 of the GATT 1994 "irrespective of whether the 
DJAI procedure is considered to be a customs or import formality subject to the obligations contained in Article VIII".
664 Subsequently, the Panel declined to opine on whether or not the DJAI 
                                               
658 Panel Reports, para. 6.433. 
659 Argentina's appellant's submission, para. 211. 
660 Argentina's appellant's submission, para. 211. 
661 Panel Reports, para. 6.433. 
662 The complainants submit that their claims unde r Article XI:1 of the GATT 1994 against the DJAI 
procedure were not concerned with the import formalities or procedural re quirements of the DJAI procedure, 
i.e. whether the DJAI must be submitted electronically  or using particular forms. Rather, according to the 
complainants, their Article XI:1 claims concern th e discretionary system of the DJAI procedure. 
(European Union's appellee's submission, para. 181; Unit ed States' appellee's submission, para. 57; Japan's 
appellee's submission, paras. 112, 127, and 134) 
663 Panel Reports, para. 6.357. With respect to the claims under Article XI:1 of the GATT 1994 and those 
under the Import Licensing Agreement, the Panel decided to "commence its analysis with the complainants' 
claims under Article XI:1 … since this is the only provision among the ones raised by the complainants that 
deals with trade measures of a substantive nature". (Ibid., para. 6.361) 
664 Panel Reports, para. 6.444. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  procedure is an import licensing procedure, and proceeded to assess the consistency of the 
DJAI procedure with Article XI:1 "irrespective of whether it constitutes an import licence".665 That 
the Panel took such an approach did not, in ou r view, contribute either to the clarity of its 
reasoning, or to a clear understanding of the relationship between different obligations under the 
GATT 1994 and the Import Licensing Agreement.666 Nevertheless, no party has challenged the 
Panel's approach on appeal. 
5.254.  Returning, therefore, to Argentina's arguments on appeal, we turn to examine the 
implications that, according to Argentina, arise from the reasoning of the Panel in paragraph 6.433 
of the Panel Reports. First, we examine whether this paragraph implies something about "any import procedures". Second, we examine whether this paragraph implies that an import procedure that is a "necessary pre-requisite for importing goods" is outside the scope of Article VIII of the 
GATT 1994. Finally, we consider whether an "import procedure by which a Member determines the 
right to import" is outside the scope of Article VIII. 
5.255.  It is clear to us that paragraph 6.433 of the Panel Reports is concerned solely with the 
DJAI procedure. In other words, the Panel did not se t out, in this paragraph, general principles or 
legal tests to be applied to import measures generally. All but two sentences in this paragraph refer explicitly to the DJAI or the DJAI procedure. The fourth sentence in paragraph 6.433 
provides: "In such case, the prospective importer will have to contact the agencies concerned and 
provide the information that may be required."  "[S]uch case" is explained by the previous 
sentence: a DJAI application which contains an "observation". Thus, in substance, the fourth sentence also refers to the DJAI procedure. The last sentence in paragraph 6.433 provides: 
"Rather, it is a procedure by which Argentina determines the right to import." The subject of this 
sentence – i.e. "it" – is identified by the previous sentence: the DJAI procedure. Once more, it is clear that this sentence refers, in substance, to the DJAI procedure.  
5.256.  We now examine whether paragraph 6.433 of the Panel Reports implies that an import 
procedure that is a necessary pre-requisite for importing goods is outside the scope of Article VIII of the GATT 1994. The second sentence in paragraph 6.433 provides: "The Panel has noted that a 
DJAI in exit status is a necessary pre-requisite for importing goods into Argentina." In our view, 
the Panel refers here to its earlier examination of the DJAI procedure, where it concluded that an importer must attain a DJAI in "exit" status to import goods into Argentina.
667 We see nothing in 
paragraph 6.433 suggesting that import procedures that are a necessary pre-requisite for the 
importation of goods are excluded from the scope of Article VIII. 
5.257.  In addition, the immediately preceding paragraph of the Panel Reports contradicts 
Argentina's view that paragraph 6.433 of the Panel Reports implies that import procedures that 
are a necessary pre-requisite for the importation of goods are excluded from the scope of 
Article VIII of the GATT 1994. We note that, in pa ragraph 6.432 of the Panel Reports, the Panel 
examined the meaning of "formality" in the context of Article VIII, and concluded that "a formality 
can be considered to include all requirements th at, although in appearance directed at a mere 
observance of forms, must be usually observed in connection with the importation of the exportation of goods." In our view, " requirements " that " must be usually observed" in connection 
with the importation of goods can be said to include procedures that are a necessary pre-requisite 
                                               
665 Panel Reports, para. 6.479. 
666 Similarly to these disputes, the complainants in EC – Bananas  made claims under provisions of the 
GATT 1994 and the Import Licensing Agreement. In that case, the Appellate Body considered that a panel 
should apply first the agreement that "deals specific ally, and in detail," with the matter at issue. 
(Appellate Body Report, EC – Bananas III , para. 204) As the Panel's decision to start its examination with the 
claims under Article XI:1 is not appealed, we neither en dorse nor reject the Panel's approach in this regard. 
(See Panel Reports, paras. 6.358-6.361 and 6.448) In addition, we recall that the Panel examined the consistency of the DJAI procedure with Article XI:1 of the GATT 1994, irrespective of whether the DJAI procedure constitutes an import licensing procedure, and subsequently refrained from making any findings 
under the Import Licensing Agreement. (Ibid., paras. 6.479, 6.505, 6.511, 6.517, 6.523, 6.529, 6.535, 6.540, and 6.543) As the Panel's approach, in this regard, is not appealed, we neither endorse nor reject it. Moreover, since the Panel made no finding as to the consistency of the DJAI procedure with the Import Licensing 
Agreement, we do not opine on the general relationship between the GATT 1994 and the Import Licensing 
Agreement. 
667 Panel Reports, paras. 6.364 and 6.407-6.409. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  for the importation of goods.668 Thus, to the extent that paragraph 6.433 implies something about 
import procedures in general, when this paragraph is read together with paragraph 6.432, it implies that the Panel considered that import procedures that are a necessary pre-requisite for the importation of goods fall within the scope of application of Article VIII. 
5.258.  Finally, we examine whether paragraph 6.433 of the Panel Reports implies that an import 
procedure by which a Member determines the right to import is outside the scope of Article VIII of the GATT 1994. At the end of paragraph 6.433, the Panel concluded that "the DJAI procedure is 
not directed at a mere observance of forms; it is not a mere formality imposed by Argentina in 
connection with the importation of goods … [r]ather, it is a procedure by which Argentina determines the right to import." In our view, these sentences may imply that procedures by which a Member determines the right to import are not mere formalities in connection with importation 
within the meaning of Article VIII. Ultimately, however, this implication does not support 
Argentina's claim of error. 
5.259.  In our view, a statement that a procedure is not a mere formality does not necessarily 
imply that such procedure is not a  f o r m a l i t y .  W h i l e  t h i s  m a y  b e  o n e  w a y  o f  u n d e r s t a n d i n g  t h e  
statement, the use of the word "mere" seems to us  to suggest, instead, that such procedure is 
something more than a formality – i.e. that it goes beyond a formality. Understanding the Panel's 
statement in this way is, moreover, entirely consistent with the approach and reasoning of the 
Panel as set out in the paragraphs that precede and follow paragraph 6.433 of the Panel Reports. In the context of the DJAI procedure, the Panel's statement suggests that, while it did not exclude 
that certain elements of the DJAI procedure constitute formalities, it considered that other 
elements of the DJAI procedure go beyond import formalities. As noted above, moreover, the 
parties never sought to separate and distinguish the different elements composing the DJAI procedure.  
5.260.  In addition, we note that paragraph 6.434 of the Panel Reports starts with the phrase 
"[e]ven assuming ad arguendo  that the DJAI procedure is a customs or import formality, subject 
to Article VIII of the GATT 1994". As from this point, the Panel conducted its analysis on the basis 
of an assumption that the DJAI procedure falls within the scope of Article VIII. Thus, the Panel 
cannot be understood to have implied that the DJAI procedure falls outside the scope of Article VIII of the GATT 1994.
669 
5.261.  As a final matter, we recall Argentina's concern that the Panel's understanding of the scope 
of Article VIII of the GATT 1994 influenced the Pa nel's conclusions: (i) regarding the relationship 
between Articles VIII and XI:1 of the GATT 1994; and (ii) that any import formality or requirement that does not result in the "automatic" importation of goods is necessarily inconsistent with 
Article XI. 
5.262.  We are not persuaded that any possible implication from paragraph 6.433 of the Panel 
Reports, as explained above, influenced the Panel's conclusion regarding the relationship between 
Articles VIII and XI:1 of the GATT 1994. We recall that the Panel considered that the obligations 
contained in Articles VIII and XI:1 apply harmoniously and cumulatively, rather than on a mutually exclusive basis.
670 The Panel concluded that the consistency of an import or customs formality or 
requirement could be assessed under either Article VIII or Article XI:1, or under both provisions.671 
Thus, the question of whether or not paragraph 6.433 implies that certain elements of an import 
procedure by which a Member determines the right to import fall outside the scope of application of Article VIII becomes less relevant. Given that the obligations in Articles VIII and XI:1 apply 
cumulatively, such import procedure, or at least certain of its elements, may well be subject to 
both provisions. 
                                               
668 Emphasis added. We do not consider that the use of  the term "usually" in th e definition provided by 
the Panel detracts from this conclusion. Although the Panel did not explain why it included the term "usually" in the dictionary meaning of the word "for mality", we understand it intended to  mean "typically" or "generally". In 
any event, we consider that a "requirement" already impl ies something that is required or necessary, and thus 
must be observed. 
669 We also recall that, as Argentina accepts, the Pa nel did not make an ultimate finding as to the 
applicability of Article VIII of the GATT 1994 to the DJAI  procedure. (See Argentin a's appellant's submission, 
paras. 208, 209, and 218) 
670 Panel Reports, para. 6.438. 
671 Panel Reports, para. 6.443. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  5.263.  We are equally unpersuaded by Argentina's final assertion that the implications from 
paragraph 6.433 of the Panel Reports influenced the Panel's alleged conclusion "that any import formality or requirement that does not result in the 'automatic' importation of goods is necessarily inconsistent with Article XI."
672 This is particularly because, as explained in more detail in the 
following subsection, we do not find error in the Panel's reference to the obtaining of a DJAI in 
"exit" status as being not "automatic". Thus, we need not further consider this argument of Argentina here. 
5.264.  For the reasons set out above, we disagree with Argentina's understanding of the 
implications of paragraph 6.433 of the Panel Reports. Thus, we reject Argentina's request that we modify or reverse the Panel's findings in paragraph 6.433. 
5.3.6  Application of Article XI:1 of the GATT 1994 
5.265.  Having addressed Argentina's claims that the Panel erred in its interpretation of 
Article XI:1 of the GATT 1994, and in its assessmen t of the scope of Article VIII of the GATT 1994, 
we now direct our attention to Argentina's claim that the Panel erred in its application of the legal 
standard under Article XI:1 to the DJAI procedure. We first summarize the Panel's findings in 
connection with the application of Article XI:1 of  the GATT 1994, and we then examine Argentina's 
claim that the Panel erred in concluding that, because the approval of a DJAI is not "automatic", 
the DJAI procedure is inconsistent with Article XI:1. 
5.3.6.1  The Panel's findings in connection wi th the application of Article XI:1 of the 
GATT 1994 to the DJAI procedure 
5.266.  The Panel first recalled certain elements of Article XI:1 of the GATT 1994, and noted that 
measures that had been found, in prior disputes, to constitute "restrictions" prohibited under this 
provision include measures that, inter alia : (i) limited market access for imports
673; (ii) created 
uncertainties674; (iii) conditioned the right to import on trade balancing requirements675; and 
(iv) made importation prohibitively costly.676 The Panel then stated that it would examine the 
DJAI procedure in the light of the lega l background that it had identified.677 In doing so, the Panel 
seems to have structured its analysis in parallel with the four above-mentioned types of 
restrictions. 
5.267.  First, the Panel considered whether the DJAI procedure limits the access of imports into 
the Argentine market. The Panel noted that a DJAI will attain "exit" status if either: (i) no Argentine agency enters an observation within a ce rtain time period; or (ii) the relevant agency 
has lifted any observation entered into a DJAI after the prospective importer provided the 
information or took any other action requ ested by the agency. The Panel concluded: 
Accordingly, on its face the DJAI procedure affects the opportunities for the 
importation of goods into Argentina. The requirement to obtain a DJAI in exit status is 
a necessary condition to import goods into Argentina in most cases. The attainment of such status is not automatic. This results in a restriction on the access of imports into 
the Argentine market.
678 
5.268.  Second, the Panel evaluated whether the DJAI procedure created uncertainty for an 
applicant's ability to import. The Panel noted that the relevant Argentine legislation does not identify all the agencies that may intervene in th e DJAI procedure, the complete list of information 
that must be provided or may be required, or the specific criteria on which the agencies may enter 
                                               
672 Argentina's appellant's submission, para. 218. 
673 Panel Reports, fn 903 to para. 6.454 (referring to GATT Panel Reports, Canada – Provincial Liquor 
Boards (EEC) , paras. 4.24 and 4.25; Canada – Provincial Liquor Boards (US) , para. 5.6; and EEC – Minimum 
Import Prices , para. 4.9). 
674 Panel Reports, fn 904 to para. 6.454 (referring to Panel Reports, China – Raw Materials , paras. 7.948 
and 7.957). 
675 Panel Reports, fn 906 to para. 6.454 (referring to Panel Report, India – Autos , para. 7.277). 
676 Panel Reports, fn 905 to para. 6.454 (referring to Panel Report, Brazil – Retreaded Tyres , 
paras. 7.370-7.372). 
677 Panel Reports, para. 6.459. 
678 Panel Reports, para. 6.461. (fn omitted) WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  and lift observations.679 The Panel considered that the broad discretion that participating agencies 
have to enter and lift observations, coupled with the lack of clarity as to the agencies participating and the fact that a DJAI in "exit" status is a necessary condition to import goods, creates uncertainty as to the applicant's ability to import goods into Argentina and has a limiting effect on 
the importation of goods.
680 
5.269.  Third, the Panel considered the role of th e SCI in the DJAI procedure and the requirements 
that it imposes on importers as a condition to lift observations. The Panel noted that the SCI often 
requires prospective importers to submit documents that are unrelated to the importation and, in 
certain cases, to commit to increase exports as a condition to lifting its observations.681 The Panel 
noted that the export commitment required by the SCI has two effects: (i) it makes the declarants' right to import conditional upon their commitment to increase their exports; and (ii) it limits the 
value of goods that can be imported to the value of their exports. In the Panel's view, the export 
commitment creates an additional restriction on importation, as importers are not free to import as much as they desire without regard to their export performance.
682 
5.270.  Lastly, the Panel examined whether the DJAI procedure increases transaction costs for 
importers. The Panel considered that the expo rt commitment required by the SCI imposes a 
significant burden on importers that is unrelated to their normal importing activity. This, in turn, 
results in higher import costs, making importation "prohibitively costly", thus restricting 
importation.683 
5.271.  On the basis of the above, the Panel stated, in paragraph 6.474 of its Reports: 
In sum, the Panel finds that the DJAI procedure has a limiting effect on imports, and 
thus constitutes an import restriction, because it: (a) restricts market access for 
imported products to Argentina as obtaining a DJAI in exit status is not automatic; (b) creates uncertainty as to an applicant's ability to import; (c) does not allow 
companies to import as much as they desire or need without regard to their export 
performance; and, (d) imposes a significant burden on importers that is unrelated to 
their normal importing activity. 
5.3.6.2  Argentina's claim that the Panel erre d in its application of Article XI:1 of the 
GATT 1994 to the DJAI procedure 
5.272.  Argentina claims that the Panel erred in finding that, because the attainment of a DJAI in 
"exit" status is not "automatic", the DJAI proc edure is inconsistent with Article XI:1 of the 
GATT 1994. Argentina seeks reversal of this specific basis for the Panel's finding in 
paragraph 6.474 of the Panel Reports. Argentina also requests us to reverse the Panel's ultimate finding that the DJAI procedure is inconsistent with Article XI:1.
684  
5.273.  We again note the limited scope of this claim of error by Argentina. Argentina takes issue 
only with the part of the Panel's reasoning leading to its intermediate finding that the DJAI procedure is not "automatic". Argentina does  not appeal the Panel's decision to start its 
examination with the claims under Article XI:1 of the GATT 1994 instead of those under the Import 
Licensing Agreement.
685 Argentina also does not appeal the Panel's findings with respect to the 
description and operation of the DJAI procedure within Argentina's legal framework. Finally, Argentina does not question the remaining three intermediate findings – i.e. regarding uncertainty, 
                                               
679 Panel Reports, paras. 6.462-6.466. 
680 Panel Reports, paras. 6.467 and 6.469. The Panel also explicitly linked the uncertainty associated 
with the DJAI procedure to the uncertainty that charac terized the process for the review of export licence 
restrictions in China – Raw Materials , as both create uncertainty by conditio ning an applicant's ability to either 
export or import upon compliance with an uniden tified number of requirements. (Ibid., para. 6.468) 
681 Panel Reports, paras. 6.470-6.472. 
682 Panel Reports, para. 6.472. 
683 Panel Reports, para. 6.473. 
684 Argentina's appellant's submission, paras. 239, 242,  and 243.3. With respect to the Panel's ultimate 
finding that the DJAI procedure is inconsistent with  Article XI:1 of the GATT 1994, Argentina refers to 
paragraph 6.479 of the Panel Reports, paragraph 7.2. a of the EU Panel Report, paragraph 7.6.a of the 
US Panel Report, and paragraph 7. 10.a of the Japan Panel Report. 
685 We note that none of the participants has appealed  or called into question the Panel's exercise of 
judicial economy with respect to the claims against the DJAI procedure under the Import Licensing Agreement. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  export commitments, and making importation prohibitively costly – made by the Panel and relied 
upon in support of its ultimate finding of inconsistency with Article XI:1.686 
5.274.  Argentina argues that "in the context of the Panel's overall analysis … it appears to have 
been the Panel's conclusion that any import formality or requirement that is 'a necessary condition 
to import goods' and that is not 'automatically' obtained is, necessarily, a prohibited 'quantitative 
restriction' under Article XI:1."687 For Argentina, even assuming that an evaluation of import 
formalities or requirements under Article XI:1 is possible, it cannot be the case that an import 
formality or requirement is an Article XI:1 restriction merely because it is not "automatic".688 
Argentina contends that this conclusion is su pported by the context provided by the Import 
Licensing Agreement. Argentina refers, in partic ular, to Article 3.2 of the Import Licensing 
Agreement, which, according to Argentina, distinguishes between the potential trade-restricting 
effects of a licensing procedure and those of the underlying rule of importation that the procedure 
implements. Argentina argues that to interpret Article XI:1 of the GATT 1994 as prohibiting non-automatic import licensing procedures per se  would conflict with Article 3.2 of the Import 
Licensing Agreement. In Argentina's view, this conflict is avoided by recognizing that an import 
procedure is not an Article XI:1 restriction merely because it is not "automatic".
689  
5.275.  The complainants contend that the Panel considered that the approval of DJAIs is not 
"automatic" in the sense that the DJAI procedure is a highly discretionary and non-transparent 
procedure whereby, even if an importer complie s with all formal DJAI requirements, Argentine 
authorities are free to deny the application on unspecified grounds.690 The United States recalls 
that the Panel found that Argentine authorities have discretion to grant or deny DJAIs for 
undisclosed reasons and on grounds that are unrelated to the information that importers are 
required to provide in their DJAIs.691 The European Union adds that it is undisputed that the 
non-approval of a DJAI may have a limiting effect on imports.692 Finally, the complainants argue 
that Argentina's reliance on the Import Licensing Agreement is misplaced because there is no 
conflict between Article XI:1 of the GATT 1 994 and Article 3.2 of the Import Licensing 
Agreement.693 In the United States' view, Argentina's reliance on Article 3.2 of the Import 
Licensing Agreement is misplaced because that provision anticipates that there is a separate, 
WTO-consistent restriction imposed through licensing procedures, whereas, in these disputes, the DJAI procedure is itself a trade restriction.
694 
5.276.  We do not see that the Panel's use of the term "automatic" in connection with the 
DJAI procedure carries the import or significance that Argentina seeks to attribute to it. As 
acknowledged by Argentina695, the Panel did not elaborate on what it meant by "automatic" when 
it stated that the attainment of a DJAI in "exit" status is not "automatic".696 Nonetheless, 
Argentina argues that the Panel's finding suggests that "any import formality or requirement that 
is 'a necessary condition to import goods' and that is not 'automatically' obtained is, necessarily, a prohibited 'quantitative restriction' under Article XI:1."
697 For Argentina, the Panel's finding, if left 
undisturbed, would have significant repercussions because it would mean that a formality or 
requirement – including those related to non-automatic import licensing procedures regulated under Article 3.2 of the Import Licensing Agreemen t – would be inconsistent with Article XI:1 of 
the GATT 1994 merely because it is not "automatic".
698 In Argentina's view, this cannot be the 
                                               
686 In this regard, see United States' appellee's submission, paras. 52 and 53; and Japan's appellee's 
submission, para. 129. 
687 Argentina's appellant's submission, para. 238. 
688 Argentina's appellant's submission, para. 239. 
689 Argentina's appellant's submission, para. 241. 
690 European Union's appellee's submission, paras. 201  and 203; United States' appellee's submission, 
paras. 93-97; Japan's appellee's submission, paras. 127, 130, and 131. 
691 United States' appellee's submission, para. 96 (quoting Panel Reports, para. 6.466). 
692 European Union's appellee's submission, para. 202. 
693 European Union's appellee's submission, para. 205; United States' appellee's submission, paras. 103 
and 106; Japan's appellee's submission, para. 132. 
694 United States' appellee's submission, paras. 103 and 106. 
695 Argentina's appellant's submission, para. 238. 
696 Panel Reports, para. 6.461. 
697 Argentina's appellant's submission, para. 238. 
698 Argentina's appellant's submission, paras. 239 and 241. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  case.699 Moreover, the Panel's finding directly conflicts with Article 3.2 of the Import Licensing 
Agreement.700 
5.277.  Argentina appears to understand the term "automatic" in the same sense as that word is 
used in connection with import licensing proced ures in the Import Licensing Agreement. In our 
view, however, the Panel's finding that the attainment  of a DJAI in "exit" status is not "automatic" 
does not, and was not intended to, refer to the definition of "automaticity" in Article 2 of the Import Licensing Agreement. 
5.278.  We recall that the Panel made no findings as to whether the DJAI procedure qualifies as an 
"import licensing procedure" within the meaning of the Import Licensing Agreement. In fact, the Panel concluded that the DJAI procedure is inconsistent with Article XI:1 of the GATT 1994 "irrespective of whether it constitutes an import licence".
701 Given this finding of inconsistency, the 
Panel subsequently refrained from making any find ings with respect to the complainants' claims 
under the provisions of the Import Licensing Agreement, including those under Articles 3.2 and 3.5(f) thereof.
702 
5.279.  As explained above, none of the parties sought to separate and distinguish the different 
elements that compose the DJAI procedure, including any of those possibly relating to import licensing procedures. Even though aspects of the DJAI procedure may resemble an import 
licensing procedure
703, it was not these characteristics of the DJAI procedure that were the target 
of the complainants' claims704 under Article XI:1 of the GATT 1994. Rather, the main focus of their 
claims was the discretionary elements involved in the entering and lifting of observations.705 
Moreover, as further explained below, the Panel's finding that the attainment of a DJAI in "exit" 
status is not "automatic" did not address the features of the DJAI procedure that arguably 
resemble import licensing procedures within the meaning of Article 1.1 of the Import Licensing 
Agreement. 
5.280.  We note that one of the dictionary definitions of "automatic" is "[o]ccurring as a necessary 
consequence; … taking effect without further process in set circumstances".706 The Panel's 
reasoning leading up to its statement that the attainment of a DJAI in "exit" status is not 
"automatic" seems consistent with this meaning of "automatic". We also note that the Panel 
identified the specific features of the operation of the DJAI procedure that are responsible for the 
fact that attaining "exit" status is not a "necessary consequence" of initiating the DJAI procedure. 
5.281.  When the relevant passage in paragraph 6.461 of the Panel Reports is read in the light of 
the preceding and subsequent paragraphs, the meanin g of the term "not 'automatic'", as intended 
                                               
699 Argentina contends that many types of import fo rmalities and requirements involve some amount of 
delay so that relevant authorities may determine conformi ty with domestic legislation. (Argentina's appellant's 
submission, para. 239) 
700 Argentina's appellant's submission, para. 241. 
701 Panel Reports, para. 6.479. 
702 Panel Reports, paras. 6.505, 6.511, 6.517, 6.523, 6.529, 6.535, 6.540, and 6.543. 
703 Article 1.1 of the Import Licens ing Agreement provides: "For the pu rpose of this Ag reement, import 
licensing is defined as administrative  procedures used for the operation of  import licensing regimes requiring 
the submission of an application or other documentation (other than that required for customs purposes) to the 
relevant administrative body as a prior condition for importation into the customs territory of the importing 
Member." (fn omitted) 
704 Before the Panel, with respect to their clai ms under the Import Li censing Agreement, the 
complainants argued that the DJAI procedure is an impo rt licensing procedure within the meaning of Article 1.1 
of the Import Licensing Agreement. The European Unio n contended that "the DJAI  system is an import 
licensing system, because it is a set of administrati ve procedures which involv es the submission of an 
application and other documentation, other than those re quired for customs purposes , as a prior condition for 
importation into Argentina." (European Union's first writ ten submission to the Panel, para. 281) Similarly, the 
United States argued that the DJAI procedure requires an importer to submit an electronic application, and 
obtain an approval by relevant Argentine agencies, as a prior condition for import, and that the DJAI procedure 
is not required for customs purposes. (United States' first written submission to the Panel, paras. 124 and 125) Japan argued that the DJAI procedure requires the submis sion of an application, ot her than that required for 
customs purposes, as prior condition for importation. (Japan's first written submission to the Panel, paras. 163 and 166) 
705 European Union's appellee's submission, para. 181;  United States' appellee's submission, para. 57; 
Japan's appellee's submission, paras. 112 and 127. 
706 Shorter Oxford English Dictionary , 6th edn, W.R. Trumble, A. Stevenson (eds.) (Oxford University 
Press, 2007), Vol. 1, p. 157. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  by the Panel, becomes clear. In paragraph 6.460 of its Reports, the Panel explained that a DJAI in 
"exit" status is necessary for clearing customs. In addition, the Panel stated: 
A DJAI will attain exit status if either: (a) no agency of the Argentine Government 
enters an observation within the prescribed  time period; or, (b) when an agency has 
entered an observation on a DJAI, the observation is lifted by the agency concerned 
following information provided by and/or ac tion taken by the declarant or prospective 
importer.707 
5.282.  In paragraphs 6.462 through 6.469 of the Panel Reports, the Panel examined the 
discretionary nature of the DJAI procedure. Af ter examining Argentina's statements and legal 
framework relating to the conditions that importers must fulfil to have observations lifted, the Panel stated: 
These statements imply that (a) the information or documents to be provided to 
secure a DJAI in exit status depend on sh ortcomings detected by the relevant agency 
in a particular case which may be unrelated to the information requested from the 
declarant when filing a DJAI application; and (b) the discretion granted to 
participating agencies to lift observations is as broad as that accorded on them to 
enter observations.
708 
5.283.  The Panel also explained that the discr etion to enter and lift observations creates 
uncertainty for importers of goods. These importer s are unable to anticipate the agencies that may 
intervene in the specific DJAI procedure, the requir ements that should be met, or the complete list 
of documents that must be provided to attain a DJAI in "exit" status and, hence, to secure their 
right to import.709 On this basis, the Panel concluded: 
[T]he fact that a DJAI in exit status is a necessary condition to import goods, coupled 
with the lack of clarity as to who the participating agencies are and the absence of 
specific criteria that they can apply to exercise their discretion has a limiting effect on 
the importation of goods. Participating agencies have a broad discretion to enter and lift observations on a DJAI, which may result in an interruption of the 
DJAI procedure.
710 
5.284.  Thus, in our view, the Panel's reference, in paragraph 6.461 of the Panel Reports, to the 
attainment of a DJAI in "exit" status as being not "automatic" is a reference both to the direct connection between the DJAI procedure and the righ t to import, and to the discretionary control 
exercised by Argentine agencies in deciding when and subject to what conditions "exit" status can 
be attained.
711 
5.285.  Accordingly, we accept neither Argentina's understanding of what the Panel meant in using 
the word "automatic" in paragraph 6.461 of the Pa nel Reports, nor the implication that Argentina 
draws from the Panel's statements to the effect that attaining a DJAI in "exit" status is not "automatic". We are, therefore, not persuaded th at the Panel committed reversible error in this 
part of its reasoning or in reaching this intermediate finding. Moreover, Argentina has not 
                                               
707 Panel Reports, para. 6.460. 
708 Panel Reports, para. 6.466. (emphasis original) 
709 Panel Reports, para. 6.467. 
710 Panel Reports, para. 6.469. 
711 We also disagree with Argentina's suggestion that the Panel's interpretation of Article XI:1 of the 
GATT 1994 implies a conflict with Article 3.2 of the Import Licensing Agreement. (Argentina's appellant's submission, paras. 240 and 241) We recall that the Pane l took the view that the term "restriction" in 
Article XI:1 is defined as a limiting condition that ha s restrictive effects on impo rtation. (Panel Reports, 
paras. 6.251, 6.254, and 6.452 (referring to Appellate Body Reports, China – Raw Materials , para. 319; and 
Panel Reports, India – Quantitati ve Restrictions , paras. 5.128 and 5.129; and India – Autos , paras. 7.265, 
7.269, and 7.270)) Article 3.2 of the Import Licensing Agreement provides that "[n]on-automatic licensing shall not have trade-restrictive or  -distortive effects on imports additional  to those caused by the imposition of 
the restriction." (emphasis added) If, consistent with th e first sentence of Article 3.2 of the Import Licensing 
Agreement, a non-automatic licensing procedure itself ha s no trade-restrictive effects on imports, this would 
appear to support – rather than conflict with – a conc lusion that such non-automatic licensing procedure has 
no restrictive effects on importation. This conclusion, however, can only be made on a case-by-case basis in the light of all relevant facts. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  challenged the remaining elements relied upon by the Panel in support of its ultimate finding that 
the DJAI procedure is inconsistent with Article XI:1 of the GATT 1994. Thus, Argentina has not established that the Panel erred in finding that the DJAI procedure has limiting effects on imports, or in characterizing it as an import restriction within the meaning of Article XI:1. 
5.286.  For the reasons set out above, we disagree with Argentina's understanding of the Panel's 
use of the term "automatic" in paragraph 6.461 of the Panel Reports. Instead, we find that the Panel did not err in considering that the fact that attaining "exit" status – and thus the right to 
import – is not "automatic" under the DJAI proced ure is an element supporting its finding that the 
DJAI procedure constitutes an import restriction. Accordingly, we reject Argentina's request that we reverse the Panel's finding, in paragraph 6.474 of the Panel Reports, that the DJAI procedure is inconsistent with Article XI:1 of the GATT 1994 because the DJAI procedure "restricts market 
access for imported products to Argentina as obtaining a DJAI in exit status is not automatic".  
5.3.7  Overall conclusions on the DJAI procedure 5.287.  In the light of all of the above, we find that the Panel did not err in failing to adopt a 
two-step analytical framework similar to the one that Argentina proposes for interpreting 
Article XI:1 of the GATT 1994. In addition, we disagree with Argentina's understanding of the implications of paragraph 6.433 of the Panel Reports as regards the scope of application of 
Article VIII of the GATT 1994. Finally, we also disagree with Argentina's understanding of the 
Panel's use of the term "automatic" in paragraph 6.461 of the Panel Reports. Accordingly, we find that Argentina has not established that the Panel erred in its interpretation of Article XI:1, 
or Article VIII, of the GATT 1994, or in its application of Article XI:1 to the DJAI procedure. 
5.288.  For the above reasons, we uphold the Panel's finding, in paragraph 6.479 of the Panel 
Reports, paragraph 7.2.a of the EU Panel Report , paragraph 7.6.a of the US Panel Report, and 
paragraph 7.10.a of the Japan Panel Report, that the DJAI procedure "constitutes a restriction on 
the importation of goods and is thus inconsistent with Article XI:1 of the GATT 1994". 
 
 WT/DS438/AB/R 
 
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  6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT IN DS438 
6.1.  In the appeal of the Panel Report, Argentina – Measures Affecting the Importation of Goods 
(WT/DS438/R) (EU Panel Report), for the reasons set out in section 5.1 of this Report, with respect to the Panel's terms of reference, the Appellate Body: 
a. upholds the Panel's finding in paragraph 7.1.b that "[t]he characterization of the [TRRs] 
as a single measure in the complainants' panel requests did not expand the scope or 
change the essence of the dispute"1; and, consequently, finds that the TRRs measure 
was within the Panel's terms of reference; and 
b. with respect to the Panel's finding regarding the 23 specific instances of application of 
the TRRs identified in section 4.2.4 of the European Union's first written submission: 
i. reverses the Panel's finding in paragraph 7.1.c that these 23 specific instances of 
application of the TRRs were not precisel y identified in the EU Panel Request as 
measures at issue, and thus do not constitute measures at issue in this dispute2;  
ii. finds, instead, that the EU Panel Request identified the 23 specific instances of 
application of the TRRs as "specific measures  at issue" in conformity with Article 6.2 
of the DSU, and that these measures are,  therefore, within the Panel's terms of 
reference; and 
iii. finds it unnecessary to rule on the European Union's request for completion of the 
analysis with respect to the 23 specific instances of application of the TRRs as 
measures at issue, as the conditions on which such request is premised are not met.  
6.2.  For the reasons set out in section 5.2 of th is Report, with respect to the TRRs measure, the 
Appellate Body: 
a. upholds the Panel's finding in paragraph 7.1.d that "[t]he Argentine authorities' 
imposition on economic operators of one or more of the five trade-related requirements 
identified by the complainants as a condition to import or to obtain certain benefits, 
operates as a single measure (the TRRs measure) attributable to Argentina"3; and, as a 
consequence, 
b. upholds the Panel's finding in paragraph 7.1.e that "[t]he TRRs measure constitutes a 
restriction on the importation of goods and is thus inconsistent with Article XI:1 of the 
GATT 1994"4; and also 
c. upholds the Panel's finding in paragraph 7.1.f that "[t]he TRRs measure, with respect to 
its local content requirement" is inconsistent  with Article III:4 of the GATT 1994 because 
it "modifies the conditions of competition in the Argentine market, so that imported products are granted less favourable treatment than like domestic products".
5 
6.3.  For the reasons set out in section 5.3 of this Report, with respect to the DJAI procedure, the 
Appellate Body: 
a. finds that Argentina has not established that the Panel erred in its interpretation of 
Article XI:1, or Article VIII, of the GATT 1994; 
b. finds that Argentina has not established that the Panel erred in its application of 
Article XI:1 of the GATT 1994 to the DJAI procedure; and, as a consequence,  
                                               
1 See also Panel Reports, para. 6.14; an d First Preliminary Ruling, para. 4.1.b. 
2 See also Panel Reports, para. 6.14; and Second Preliminary Ruling, para. 5.1.b. 
3 See also Panel Reports, para. 6.231. 
4 See also Panel Reports, para. 6.265. 
5 See also Panel Reports, para. 6.295. WT/DS445/AB/R 
 
- JPN-131 - 
 
  6  FINDINGS AND CONCLUSIONS IN THE APPELLATE BODY REPORT IN DS445 
6.1.  In the appeal of the Panel Report, Argentina – Measures Affecting the Importation of Goods 
(WT/DS445/R) (Japan Panel Report), for the reasons set out in section 5.1.1 of this Report, with respect to the Panel's terms of reference, the Appellate Body: 
a. upholds the Panel's finding in paragraph 7.9.b that "[t]he characterization of the [TRRs] 
as a single measure in the complainants' panel requests did not expand the scope or 
change the essence of the dispute"1; and, consequently, finds that the TRRs measure 
was within the Panel's terms of reference. 
6.2.  For the reasons set out in section 5.2 of th is Report, with respect to the TRRs measure, the 
Appellate Body: 
a. upholds the Panel's finding in paragraph 7.9.d that "[t]he Argentine authorities' 
imposition on economic operators of one or more of the five trade-related requirements 
identified by the complainants as a condition to import or to obtain certain benefits, operates as a single measure (the TRRs measure) attributable to Argentina"
2; and, as a 
consequence, 
b. upholds the Panel's finding in paragraph 7.9.e that "[t]he TRRs measure constitutes a 
restriction on the importation of goods and is thus inconsistent with Article XI:1 of the 
GATT 1994"3; and also 
c. upholds the Panel's finding in paragraph 7.9.f that "[t]he TRRs measure, with respect to 
its local content requirement" is inconsistent  with Article III:4 of the GATT 1994 because 
it "modifies the conditions of competition in the Argentine market, so that imported 
products are granted less favourable treatment than like domestic products"4; 
d. finds that Argentina has not established that, in assessing Japan's "as such" claims, the 
Panel acted inconsistently with Article 11 of the DSU; and  
e. finds that Japan has not established that the Panel erred, in paragraph 7.9.g of the 
Japan Panel Report5, in exercising judicial economy on Japan's claim that the TRRs 
measure is inconsistent with Article X:1 of the GATT 1994. 
6.3.  For the reasons set out in section 5.3 of this Report, with respect to the DJAI procedure, the 
Appellate Body: 
a. finds that Argentina has not established that the Panel erred in its interpretation of 
Article XI:1, or Article VIII, of the GATT 1994; 
b. finds that Argentina has not established that the Panel erred in its application of 
Article XI:1 of the GATT 1994 to the DJAI procedure; and, as a consequence, 
c. upholds the Panel's finding in paragraph 7.10.a that the DJAI procedure "constitutes a 
restriction on the importation of goods and is thus inconsistent with Article XI:1 of the 
GATT 1994".6 
6.4.  The Appellate Body recommends that the DSB request Argentina to bring its measures found 
in this Report, and in the Japan Panel Report as upheld by this Report, to be inconsistent with the 
GATT 1994 into conformity with that Agreement. 
                                               
1 See also Panel Reports, para. 6.14; an d First Preliminary Ruling, para. 4.1.b. 
2 See also Panel Reports, para. 6.231. 
3 See also Panel Reports, para. 6.265. 
4 See also Panel Reports, para. 6.295. 
5 See also Panel Reports, para. 6.305. 
6 See also Panel Reports, para. 6.479. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  ANNEX 1 
   
  
WT/DS438/15  
WT/DS444/14  
WT/DS445/14  
 
29 September 2014  
(14-5434)  Page: 1/3  
  Original: English  
 
ARGENTINA – MEASURES AFFECTIN G THE IMPORTATION OF GOODS  
NOTIFICATION OF AN APPEAL BY ARGENTINA 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
 The following notification, dated 26 September 2014, from the Delegation of Argentina, is 
being circulated to Members. 
 
_______________ 
  
1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review 
(WT/AB/WP/6) ("Working Procedures"), Argentina he reby notifies the Dispute Settlement Body of 
its decision to appeal certain issues of law and legal interpretation in the reports of the Panel in 
Argentina – Measures Affecting the Importation of Goods (WT/DS438/444/445)  ("Panel Report").  
2. The measures at issue are the Declaración Jurada Anticipada de Importación  ("DJAI") and 
the alleged "Trade-Related Requirements" ("TRRs") measure. 
3. The issues that Argentina raises in this appeal relate to the Panel's findings and conclusions 
in respect of the Panel's terms of reference under the DSU, as well as the Panel's findings and conclusions with respect to the consistency of the challenged measures with various provisions of 
the General Agreement on Tariffs and Trade 1994 ("GATT 1994").  
4. Pursuant to Rules 20(1) and 21(1) of the Working Procedures, Argentina files this Notice of 
Appeal together with its Appellant's Submission with the Appellate Body Secretariat.  
5. Pursuant to Rule 20(2)(d)(iii) of the Working Pr ocedures, this Notice of Appeal provides an 
indicative list of the paragraphs of the Panel Repo rt containing the alleged errors of law and legal 
interpretation by the Panel, without prejudice to Ar gentina's ability to rely on other paragraphs of 
the Panel Report in its appeal. 
I. REVIEW OF THE PANEL'S FINDINGS REGARDING THE PANEL'S TERMS OF 
REFERENCE 
6. Argentina seeks review by the Appellate Body of the Panel's finding that the alleged "TRRs" 
measure was within its terms of reference. The Panel's errors of law and legal interpretation 
include: WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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   The Panel erred by relying on its prior "conclusion" that the alleged "TRRs" measure was 
"explicitly identified as a measure at issue" in the complainants' consultations requests;1 
 The Panel erred by failing to consider Argentina's argument that the complainants' 
introduction in their panel requests of "as such" or equally broad claims with respect to 
the alleged "TRRs" measure impermissibly expanded the scope of the dispute.2  
7. For these reasons, Argentina requests that the Appellate Body reverse the Panel's conclusion 
in paragraph 4.1(b) of the Preliminary Ruling by the Panel (16 September 2013), in which the 
Panel concluded that "[t]he characterization of the RTRRs as a single 'overarching measure' in the 
complainants' panel requests does not expand th e scope or change the essence of the dispute."3 
Argentina requests that the Appellate Body also reverse the Panel's ultimate conclusions to this 
effect in paragraphs 7.1(b), 7.5(b), and 7.9(b) of the Panel Report.  
8. Argentina requests that the Appellate Body find, instead, that the complainants' introduction 
of the alleged "TRRs" measure in their panel requ ests did expand the scope or change the essence 
of the dispute, and that the alleged measure was therefore outside of the Panel's terms of 
reference. 
II. REVIEW OF THE PANEL'S FINDINGS UN DER ARTICLES III:4 AND XI:1 OF THE 
GATT 1994 AS THEY PERTAIN TO THE ALLEGED "TRRS" MEASURE 
9. Argentina seeks review by the Appellate Body of  the Panel's findings that the alleged "TRRs" 
measure is inconsistent with Articles III:4 and XI:1 of the GATT 1994, as well as the Panel's separate findings that the alleged "TRRs" measure is inconsistent "as such" with Articles XI:1 and III:4 of the GATT 1994. The Panel's errors of law and legal interpretation include: 
 The Panel erred in failing to apply the correct legal standard to ascertain the existence of 
the alleged "TRRs measure";
4  
 The Panel acted inconsistently with its duty under Article 11 of the DSU to conduct an 
objective assessment of the matter when assessing Japan's "as such" claims against the 
alleged "TRRs measure".5  
10. Argentina therefore respectfully requests that the Appellate Body reverse the Panel's finding 
that the complainants had established that the a lleged "TRRs measure" existed or "operate[d] as a 
single measure",6 as well as the Panel's findings that the alleged measure was inconsistent with 
Articles XI:1 and III:4 of the GATT 1994.7 Accordingly, Argentina respectfully requests that the 
Appellate Body reverse the Panel's ultimate conclusions to this effect in paragraphs 7.1(d)-(f), 
7.5(c)-(d), and 7.9(d)-(f) of the Panel Report.  
11. Argentina also respectfully requests that the Appellate Body reverse the Panel's ultimate 
conclusion in paragraph 7.9(h) that the alleged "TRRs measure" is "as such" inconsistent with 
Articles XI:1 and III:4 of the GATT 1994. 
III. REVIEW OF THE PANEL'S FINDINGS UN DER ARTICLES VIII AND XI OF THE 
GATT 1994 AS THEY PERTAIN TO THE DJAI  
12. Argentina seeks review by the Appellate Body certain limited aspects of the Panel's findings 
and conclusions in respect the interpretation and application of Articles VIII and XI:1 of the GATT 1994 as they pertain to the DJAI. The Panel's errors of law and legal interpretation include: 
                                               
1 Panel Report, Annex D.1, para. 3.30.  
2 Panel Report, Annex D.1, paras. 3.29-3.33. 
3 Panel Report, Annex D.1, para. 4.1(b). 
4 Panel Report, paras. 6.138-6.231. 
5 Panel Report, paras. 6.315-6.343. 
6 Panel Report, para. 6.231. 
7 Panel Report, paras. 6.265, 6.295, 6.343. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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   The Panel erred in its assessment of the scope of Article VIII, and in particular in its 
implication that Article VIII does not encompass import procedures that are a "necessary pre-requisite for importing goods";
8 
 The Panel erred in not establishing and applying a proper analytical framework for 
distinguishing between the scope and disciplines of Article VIII, on the one hand, and the 
scope and disciplines of Article XI:1, on the other;9 and, 
 The Panel erred in its conclusion that the DJAI procedure is inconsistent with Article XI:1 
based on its finding that the approval of a DJAI application is not "automatic".10 
13. For these reasons, Argentina requests that the Appellate Body modify or reverse the Panel's 
findings in paragraph 6.433 of the Panel Report implying that any import procedure that is a 
"necessary pre-requisite for importing goods" or by which a Member "determines the right to 
import" to be outside the scope of Article VIII. 
14. Argentina respectfully requests the Appellate Body to modify the Panel's reasoning in 
paragraphs 6.435 to 6.445 of the Panel Report and to find that, to the extent that import 
formalities and requirements can be examined under Article XI:1 at all, a finding of inconsistency 
would require the complaining Member to prove that: (1) the formality or requirement at issue limits the quantity or amount of imports to a ma terial degree that is separate and independent of 
the trade-restricting effect of any substantive rule  of importation that the formality or requirement 
implements; and (2) this separate and independent trade-restricting effect is greater than the effect that would ordinarily be associated wi th a formality or requirement of its nature.  
15. Argentina respectfully requests the Appellate Body to reverse the Panel's finding in 
paragraph 6.474 of the Panel Report that the DJAI procedure is inconsistent with Article XI:1 of 
the GATT 1994 on the grounds that the attainment of  a DJAI in exit status is not "automatic". 
Argentina also requests that the Appellate Body reverse the Panel's ultimate conclusion that the 
DJAI procedure is inconsistent with Article XI:1, as set forth in paragraphs 6.479, 7.2(a), 7.6(a) and 7.10(a) of the Panel Report.   
__________ 
 
                                               
8 Panel Report, paras. 6.425-6.444. 
9 Panel Report, paras. 6.435-6.445. 
10 Panel Report, paras. 6.461, 6.474. WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  ANNEX 2 
  
  
WT/DS438/16  
 
2 October 2014  
(14-5540)  Page: 1/1  
  Original: English  
 
ARGENTINA – MEASURES AFFECTIN G THE IMPORTATION OF GOODS  
NOTIFICATION OF AN OTHER APPEAL BY THE EUROPEAN UNION 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
The following notification, dated 1 October 2014, fr om the Delegation of the European Union, is 
being circulated to Members. 
 
_______________ 
 
 
1. Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes  (DSU) and Rule 23 of the Working Procedures for Appellate 
Review , the European Union hereby notifies its decision to appeal to the Appellate Body certain 
issues of law and certain legal interpretations developed by the Panel in Argentina – Measures 
Affecting the Importation of Goods  (WT/DS438/R) (Panel Report). 
2. The European Union submits that the Panel made an error in applying Article 6.2 of the DSU 
when determining its terms of reference in this case. Specifically, The European Union submits 
that the Panel erred when finding that the 23 measures described by the European Union in 
Section 4.2.4 of its first written submission as "s pecific instances" of application of alleged RTRRs 
were not precisely identified in the EU's Panel Request as measures at issue and that, accordingly, 
those 23 measures did not constitute "mea sures at issue" in the present dispute.1 Those measures 
were clearly identified on substance in the EU's Panel Request in accordance with the requirements under Article 6.2 of the DSU. Thus, they were "measures at issue" in this dispute and the Panel 
should have examined them accordingly. 
3. Moreover, as a conditional appeal, should the Appellate Body agree with Argentina's appeal 
in this case and, thus, reverse or otherwise modify any of the Panel's findings that the TTR 
measure exists and that was inconsistent with  Articles XI:1 and III:4 of the GATT 1994, the 
European Union requests the Appellate Body to complete the analysis and find that Argentina 
violated Articles XI:1 and/or III:4 of the GATT 1994  in each of the 23 specific measures described 
by the European Union in Section 4.2.4 of its first written submission. 
 
__________ 
                                               
1 See e.g. Preliminary Ruling of 20 November 2013, para. 4.38; and Panel Report, para. 7.1(c). WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
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  ANNEX 3 
  
  
WT/DS445/15  
 
2 October 2014  
(14-5541)  Page: 1/1  
  Original: English  
 
ARGENTINA – MEASURES AFFECTIN G THE IMPORTATION OF GOODS  
NOTIFICATION OF AN OTHER APPEAL BY JAPAN 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 23(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
The following notification, dated 1 October 2014, from  the Delegation of Japan, is being circulated 
to Members. 
 
_______________ 
 
 
Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes  ("DSU") and Rule 23 of the Working Procedures for Appellate Review , 
Japan hereby notifies its decision to appeal to the Appellate Body certain issues of law covered in 
the Panel Report in Argentina – Measures Affecting the Importation of Goods (WT/DS445/R) and 
certain legal interpretations developed by the Panel in this dispute.  
The Panel Report was based on a meticulous and objective review of the extensive factual record 
before it, as well as sound legal reasoning. Ja pan appeals only one limited aspect of the Panel 
Report, in accordance with Rule 23(2)(c)(ii) of the Working Procedures for Appellate Review . In 
particular, Japan submits that the Panel erred by ex ercising false judicial economy with respect to 
Japan's claim against the TRRs measure under Article X:1 of the GATT 1994, as reflected at paragraphs 6.305 and 7.9(g) of its Report. This ex ercise of judicial economy was false because it 
would prevent an "effective resolution" of this dispute. In declining to address Japan's claim under 
Article X:1, the Panel falsely applied judicial economy and acted inconsistently with its obligations 
under Articles 3.4, 3.7, 7.2, and/or 11 of the DS U. Japan therefore respectfully requests that the 
Appellate Body reverse the Panel's exercise of judicial economy in this regard and complete the 
analysis to find that Argentina administers the TRRs measure in a manner that is inconsistent with 
its obligations under Article X:1.  
 
__________ WT/DS438/AB/R • WT/DS444/AB/R • WT/DS445/AB/R 
 
- 138 - 
 
  ANNEX 4 
The following communication, dated 3 October 2014, was sent to all participants and third 
participants in this appeal.  
_______________ 
  
Argentina – Measures Affecting the Importation of Goods 
 
AB-2014-9 
 
On 29 September 2014, the Appellate Body received a letter from Japan requesting that the 
oral hearing in this appeal not be scheduled during the period of 3-5 November 2014 due to a scheduling conflict of a key member of Japan's litigation team.  
 
Also on 29 September 2014, the Division hearing this appeal wrote to the other participants 
and to the third participants soliciting their views on Japan's request. On 1 October 2014, 
comments were received from Argentina, the European Union, and the United States.  
 In their comments, none of the other participants objected to Japan's request. However, 
Argentina and the European Union each indicate d their own scheduling constraints and requested 
that the oral hearing not be held on certain other dates (27-31 October and 11-12 November, 
respectively). The United States did not object to  Japan's request, but expressed a preference that 
the oral hearing not be unduly delayed to a date more than 45 days after the date of the Notice of 
Appeal, and noted that an oral hearing after 21 November 2014 would cause a scheduling conflict 
for its lead counsel. 
 
In the draft Working Schedule for this appeal drawn up prior to the receipt of Japan's letter 
of 29 September 2014, the Appellate Body had scheduled the oral hearing in this appeal to take place on 3-4 November 2014. The scheduling of the oral hearing in this appeal was coordinated 
with the working schedules of the Appellate Body  in the two other proceedings that are also 
currently before the Appellate Body in US – Carbon Steel (India)  (DS436) and US – Countervailing 
Measures (China)  (DS437). The overlap in the dates of the three working schedules, and in the 
composition of the Divisions hearing these three appeals, left the Appellate Body with limited 
choices for scheduling the oral hearings as well as its internal deliberations in these appeals. 
 In the light of the above-mentioned scheduling constraints, and taking into consideration the 
concerns expressed by the other participants over alternative dates for the oral hearing, the 
Division regrets that it is not in a position to accommodate Japan's request.  
 The oral hearing in this appeal is therefore scheduled for 3-4 November 2014. Please find 
enclosed a revised Working Schedule for appeal that includes these dates for the oral hearing. 
  
__________