ARGENTINA – MEASURES RELATING TO TRADE IN GOODS AND SERVICES AB-2015-8
Document: Report of the Appellate Body Addendum
Date: 14 April 2016
Document codes: WT/DS453/AB/R/Add.1; WT/DS453/AB/R.
Complainant: Panama
Respondent: Argentina
Third parties: Australia, China, Ecuador, EU, Guatemala, Honduras, India, U.S., Brazil, Singapore, Oman, Saudi Arabia
Dispute stage: Appellate Body
Agreements cited: Art. II:1, XVI, XVII, I:1  Services (GATS)Art. I:1, III:4, XI:1  GATT 1994Art. XVII, XVI:1, XVI:2(a), XVI:2(e)  Services (GATS)

ARGENTINA – MEASURES RELATING TO TRADE
IN GOODS AND SERVICES
AB-2015-8
Report of the Appellate Body
Addendum
This Addendum contains Annexes A to C to the Report of the Appellate Body circulated as
document

The Notices of Appeal and Other Appeal and th e executive summaries of written submissions
contained in this Addendum are attached as they were received from the participants and
third participants. The content has not been revise d or edited by the Appellate Body, except that
paragraph and footnote numbers that did not start at one in the original may have been
re-numbered to do so, and the text may have been formatted in order to adhere to WTO style. The
executive summaries do not serve as substitutes for the submissions of the participants and
third participants in the Appellate Body's examination of the appeal.

LIST OF ANNEXES
ANNEX A
NOTICES OF APPEAL AND OTHER APPEAL
Contents Page
Annex A-1 Panama's Notice of Appeal A-2
Annex A-2 Argentina's Notice of Other Appeal A-4
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Executive summary of Pana ma's appellant's submission B-2
Annex B-2 Executive summary of Argentina's other appellant's submission B-4
Annex B-3 Executive summary of Arge ntina's appellee's submission B-7
Annex B-4 Executive summary of Panama's appellee's submission B-10
ANNEX C
ARGUMENTS OF THE THIRD PARTICIPANTS
Contents Page
Annex C-1 Executive summary of Australia's third participant's submission C-2
Annex C-2 Executive summary of Brazil's third participant's submission C-3
Annex C-3 Executive summary of the European Union's third participant's submission C-4
Annex C-4 Executive summary of Guatemala's third participant's submission C-6
Annex C-5 Executive summary of the United States' third participant's submission C-7

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ANNEX A
NOTICES OF APPEAL AND OTHER APPEAL
Contents Page
Annex A-1 Panama's Notice of Appeal A-2
Annex A-2 Argentina's Notice of Other Appeal A-4

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ANNEX A-1
PANAMA'S NOTICE OF APPEAL*
Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes (DSU) and Rule 20(1) of the Working Procedures for Appellate Review,
Panama hereby notifies its decision to appeal certain issues of law covered in the Panel Report in
Argentina – Measures relating to Trade in Goods and Services (WT/DS453/R), which was circulated
on 30 September 2015 (Panel Report). Pursuant to Rule 21(1) of the Working Procedures
for Appellate Review, Panama is simultaneously filing this Notice of Appeal and its
Appellant's Submission with the Appellate Body Secretariat.
Panama seeks review by the Appellate Body of the following errors of law contained in the
Panel Report:
i. The Panel erred in interpreting and applying the term "treatment no less
favourable" in the context of Articles II:1 and XVII of the General Agreement on
Trade in Services (GATS)

The Panel interpreted the term "treatment no less favourable" in Articles II:1 and XVII of the GATS
as permitting the consideration of "regulatory aspects" in the assessment of whether a measure
modifies the conditions of competition in the relevant marketplace. The Panel considered that the
relevant "regulatory aspect" in this dispute was whether Argentina has access to tax information
on foreign suppliers. The Panel also considered that this regulatory aspect provides a competitive
advantage to services and service suppliers of countries that do not exchange tax information with
Argentina.
In essence, the Panel considered that when a Member imposes higher tax burdens or additional
administrative requirements only on services or service suppliers of certain origin in order to
neutralize a competitive advantage, that Member is not modifying the conditions of competition in
the marketplace and, therefore, is not acting in a manner inconsistent with its obligations under
Articles II:1 and XVII of the GATS to provide "treatment no less favourable".
The Panel's interpretation is inconsistent with established jurisprudence regarding the meaning of
"treatment no less favourable" in these provisions and establishes a new legal standard that has
no proper basis in either the text or context of Articles II:1 or XVII of the GATS, or in the object
and purpose of these provisions or of the GATS itself.
Without prejudice to Panama's ability to refer to other paragraphs in the Panel Report, the Panel's
incorrect interpretation is contained in paragraphs 7.212, 7.232, and 7.215 (for Article II:1 of
the GATS
1), as well as in paragraphs 7.490-7.494, 7.514-7.516, and 7.520-7.521 (for Article XVII
of the GATS2) of the Report.
ii. The Panel erred in applying the terms "n ecessary to secure compliance with laws
or regulations which are not inconsistent with the provisions of this Agreement"
within the meaning of Article XIV(c) of the GATS to the facts of the case

Having found that measures 1, 2, 3, 4, 7, and 8 (as defined in paragraphs 2.13-2.22
and 2.37-2.40 of the Panel Report) were inconsistent with Article II:1 of the GATS, the Panel had
to address Argentina's defences under Article XIV(c) of the GATS in the light of the well-developed
legal standards for panels addressing defences raised under the exceptions contained in Article XX
of the GATT 1994 and Article XIV of the GATS.

* This Notice, dated 27 October 2015, was circulated to Members as document WT/DS453/7.

1 The Panel applied its incorrect interpretation in paragraphs 7.283-7.293, 7.300-7.302, 7.309-7.310,
7.319-7.320, 7.329-7.330, 7.339-7.340, 7.351-7.352, and 7.360-7.361 of the Report.
2 The Panel applied its incorrect interpretation in paragraphs 7.500-7.525 of the Report.

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In this case, Panama considers that the Panel failed to apply properly the relevant legal standard
for an Article XIV(c) defence to the measures before it. In particular, the Panel failed to focus its
analysis on the aspects of measures 1, 2, 3, 4, 7, and 8 that were found to accord less favourable
treatment within the meaning of Article II:1 of the GATS to like services and service suppliers of
non-cooperative countries.
Furthermore, the Panel focused its analysis on the question of whether the measures at issue
secure compliance with the objectives of the relevant laws and regulations, and not on whether
they secure compliance with the specific provisions of those laws and regulations referred to
by Argentina.
In addition, the Panel erred in finding that Argentina had demonstrated that measures 1, 2, 3, 4,
7, and 8 were "designed" and are "necessary" to secure compliance with the relevant laws and
regulations within the meaning of Article XIV(c) of the GATS. In particular:
a. the Panel failed to conduct a proper analysis of the contribution of measures 1, 2, 3, 4,
7, and 8 to the objective of securing complia nce with the relevant laws and regulations;
and
b. the Panel erred in finding that measures 1, 2, 3, 4, 7, and 8 have a limited
trade-restrictive effect on international trade in services.
For these reasons, the Panel erred in finding that measures 1, 2, 3, 4, 7, and 8 were provisionally
justified under Article XIV(c) of the GATS.
Without prejudice to Panama's ability to refer to other paragraphs in the Panel Report, the Panel's
incorrect application of the relevant legal standard is contained in section 7.3.5.2 of the
Panel Report, in particular, in paragraphs 7.637-7.642, 7.646-7.648, 7.692, 7.695, 7.700, 7.703,
7.705, 7.706-7.717, 7.720-7.728, and 7.737-7.740.
iii. The Panel erred in interpreting the scop e of paragraph 2(a) of the GATS Annex on
Financial Services, which is entitled "Domestic Regulation"

Having found measures 5 and 6 (as defined in paragraphs 2.23-2.36 of the Panel Report) to be
GATS-inconsistent, the Panel was called upon to interpret paragraph 2(a) of the GATS Annex on
Financial Services (prudential exception) and to determine whether Argentina had met its burden
of establishing that measures 5 and 6 were justified under that provision.
In doing so, the Panel failed to interpret the scope of the prudential exception correctly. In
particular, the Panel failed to give effect to the term "domestic regulation" in the title of the
prudential exception, which determines the scope of this exception. The Panel incorrectly
concluded that the prudential exception covers all types of measures affecting the supply of
financial services and not only those measures that can be characterized as "domestic
regulations".
Without prejudice to Panama's ability to refer to other paragraphs in the Panel Report, the Panel's
finding reflecting its incorrect interpretation is contained in paragraph 7.847 of the Report.

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ANNEX A-2
ARGENTINA'S NOTICE OF OTHER APPEAL*
1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes ("DSU") and Rule 23 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 contained in the report of
the Panel in Argentina – Measures Relating to Trade in Goods and Services (WT/DS453)
("Panel Report").
2. The issues that Argentina raises in this other appeal relate to the Panel's findings that
services and service suppliers located in jurisdictions that Argentina designates as "cooperative"
and "non-cooperative" under Decree No. 589/2013 and the defensive tax measures at issue in this
dispute are "like" within the meaning of Articles II:1 and XVII of the General Agreement on Trade
in Services ("GATS").
3. In particular, Argentina seeks review of the Panel's finding that services and service
suppliers located in "cooperative" and "non-cooperative" jurisdictions are "like" under Article II:1
of the GATS.
1 The Panel erred in its interpretation and application of Article II:1 in concluding that
the services and service suppliers at issue are " like" on the grounds that the measures at issue
provide differential treatment "by reason of origin". 2 If the Appellate Body were to conclude that
services and service suppliers may be considered "like" when a measure provides differential
treatment "exclusively on the basis of origin", Argentina respectfully request that the Appellate
Body find that the Panel erred in concluding that the services and services suppliers are "like" in
the absence of a finding that the measures at issue provide differential treatment "exclusively" on
the basis of origin.3
4. Argentina further considers that the Panel committed legal error under Article II:1 of the
GATS by reversing the burden of proof and finding that it was incumbent upon Argentina to
demonstrate that the services and service suppliers located in "cooperative" and "non-cooperative"
jurisdictions are not like under that provision.4
5. The Panel also erred in its interpretation and application of Article XVII of the GATS when it
relied on its erroneous likeness finding under Article II:1 to conclude that services and service
suppliers located in Argentina are "like" those located in "non-cooperative" jurisdictions.
5 In
addition to the fact that the Panel's findings under Article II:1 were themselves in error, the
Panel's findings under Article II:1 were not sufficient to establish likeness under Article XVII of the
GATS. Argentina therefore requests that the Appellate Body modify the Panel's reasoning while
upholding its ultimate conclusion that measures 2, 3 and 4 are not inconsistent with Article XVII of
the GATS.
6
6. With respect to Panama's claims under both Article II:1 and Article XVII of the GATS,
Argentina further considers that the Panel committed legal error by making a prima facie case of
likeness for Panama in the absence of evidence and legal argument.
7. Alternatively, in the event that the Appellate B o d y w e r e t o f i n d t h a t A r g e n t i n a b o r e t h e
burden of proving likeness under Articles II:1 and XVII of the GATS, or that Panama had otherwise
established a prima facie case of likeness, Argentina claims on appeal that the Panel failed to act
consistently with its duties to conduct an objective assessment of the matter under Article 11 of

* This Notice, dated 2 November 2015, was circulated to Members as document WT/DS453/8.

1 Panel Report, para. 7.186.
2 Panel Report, paras. 7.153-7.185 and 7.365.
3 Panel Report, paras. 7.185, 7.186, 7.365.
4 Panel Report, paras. 7.171-7.185, but in particular para. 7.179.
5 Panel Report, paras. 7.481-7.489.
6 Panel Report, para. 7.525.

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the DSU in reaching its findings under those provisions. The Panel ignored uncontested evidence
on the panel record which demonstrated that th e differences in regulatory frameworks between
cooperative and non-cooperative jurisdictions affe ct the nature and extent of the competitive
relationship among services and service suppliers located in these different types of jurisdictions,
to the extent that they cannot be considered "like" under Articles II:1 and XVII of the GATS. 7
Should the Appellate Body sustain this alternative claim of error, Argentina requests that the
Appellate Body complete the legal analysis and find, on the basis of the Panel's factual findings and
uncontested evidence on the panel record, that th ese categories of services and service suppliers
are not like under Articles II:1 and XVII of the GATS.
8. For these reasons, Argentina respectfully re quests that the Appellate Body reverse the
Panel's finding that services and service suppliers located in "non-cooperative" jurisdictions are
"like" services and service suppliers located in "cooperative" jurisdictions and in Argentina under
Articles II:1 and XVII of the GATS, respectively.
8 Consequently, Argentina respectfully requests
that the Appellate Body (1) reverse the Panel's ultimate finding that the measures at issue in this
dispute are inconsistent with Article II:1 of the GATS 9; and (2) modify the basis for the Panel's
ultimate finding that measures 2, 3, and 4 are not inconsistent with Article XVII.10
9. Pursuant to Rule 23(3) of the Working Procedures, Argentina files this Notice of Other
Appeal together with its Other Appellant's Submission with the Appellate Body Secretariat.
10. Pursuant to Rule 23(2)(c)(ii)(C) of the Workin g Procedures, this Notice of Other Appeal
provides an indicative list of the paragraphs of the Panel Report containing the alleged errors of
law and legal interpretation by the Panel, without prejudice to Argentina's ability to rely on other
paragraphs of the Panel Report in its other appeal.

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ANNEX B
ARGUMENTS OF THE PARTICIPANTS
Contents Page
Annex B-1 Executive summary of Pana ma's appellant's submission B-2
Annex B-2 Executive summary of Argentina's other appellant's submission B-4
Annex B-3 Executive summary of Arge ntina's appellee's submission B-7
Annex B-4 Executive summary of Panama's appellee's submission B-10

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ANNEX B-1
EXECUTIVE SUMMARY OF PANAMA'S APPELLANT'S SUBMISSION1
1.1 The Panel erred in the interpretation and application of the term "treatment no less
favourable" in Articles II:1 and XVII of the GATS
1.1. In resolving Panama's claims under Article II:1 of the GATS, the Panel reached the
"preliminary conclusion" that all of the measures at issue accord less favourable treatment to
services and service suppliers of non-cooperative countries in comparison with that accorded to
like services and service suppliers of cooperative countries.
2 Similarly, in resolving Panama's
claims under Article XVII of the GATS, the Panel decided "on a preliminary basis" that
measures 2, 3 and, 4 accord less favourable treatment to services and service suppliers of
non-cooperative countries in comparison with that accorded to like Argentine services and service
suppliers.
3
1.2. Based on previous Appellate Body jurisprudence, these findings should have sufficed to
establish that: (i) measures 1, 2, 3, 4, 5, 6, 7, and 8 are inconsistent with Article II:1 of the GATS;
and (ii) measures 2, 3, and 4 are inconsistent with Article XVII of the GATS, as claimed by Panama
in its panel request.
1.3. However, the Panel went further and asserted that in analyzing "no less favourable
treatment" under Articles II:1 and XVII of the GA TS respectively, the regulatory framework in
which service suppliers operate is a relevant factor that may be taken into account.4
1.4. Under the Panel's interpretation, the regula tory framework – in this case, access (or lack
thereof) to information by Argentine authorities – gives services and service suppliers of
non-cooperative countries a competitive advantage over like Argentine services and service
suppliers (and over like services and service su ppliers of cooperative countries). In the Panel's
view, this advantage modifies the conditions of competition. Thus, according to the Panel, a
Member that imposes discriminatory measures to neutralize this perceived advantage is not acting
in a manner inconsistent with the obligation to provide "treatment no less favourable". Instead,
that Member does not modify the conditions of competition in favour of Argentine like services and
service suppliers (and by extension, like services and service suppliers of cooperative countries.)
1.5. The Panel's interpretation is legally incorrect.
1.6. Consistently with previous jurisprudence, Panama starts with the premise that the "treatment
no less favourable" obligations in Articles II:1 and XVII of the GATS are meant to "ensure equality
of conditions of competition": (i) between services and service suppliers of a Member and the like
services and service suppliers of other Members; and (ii) between domestic services and service
suppliers and like services and service suppliers of all other Members, respectively.
1.7. In Panama's view, "ensuring equality of conditions of competition" means that measures that
are regulated under Articles II:1 and Article XVII of the GATS must not alter the opportunities of
like services and service suppliers of different origins to compete in a given market. In this
context, the measures must be neutral in their application with respect to the pre-existing relative
competitiveness between like services and service suppliers of different origins.
1.8. The Panel appears to interpret "ensuring equality of conditions of competition" in a different
manner. Panama's understanding of the Panel's interpretation is that Argentina's rights and
obligations under Articles II:1 and XVII of the GATS are to: (i) assess the relative competitiveness
of like services and service suppliers; (ii) iden tify any disadvantages of services and service

1 This executive summary contains a total of 1,169 words. The remainder of this submission (excluding
the executive summary) contains a total of 38,999 words.
2 Panel Report, paras. 7.282, 7.300, 7.308, 7.318, 7.328, 7.338, 7.350 and 7.359.
3 Panel Report, paras. 7.501, 7.502 and 7.503.
4 Panel Report, paras. 7.212, 7.235, 7.493, and 7.494.

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suppliers of cooperative countries and of Argentine origin based on whether Argentine authorities
have access to information; and (iii) impose a discriminatory measure that compensates for the
perceived disadvantages and, in so doing, "equalizes" the conditions of competition.
1.9. Under the Panel's interpretation, therefore, Articles II:1 and XVII of the GATS do not limit
Members to apply measures with a neutral impact on all like services and service suppliers. In
addition, a Member may assess the respective regulatory framework applicable to like services and
service suppliers, identify the relative disadvantages arising from differences in the regulatory
framework, and impose a measure that compensates for those disadvantages.
1.10. The Panel's interpretation deviated from established jurisprudence and set a new legal
standard that has no basis in the text or contex t of Articles II:1 and XVII of the GATS, or in the
object and purpose of the GATS.
1.2 The Panel erred in finding that measures 1, 2, 3, 4, 7, and 8 are provisionally
justified under Article XIV(c) of the GATS
1.11. The Panel erred in its interpretation and application of Article XIV(c) of the GATS to the
assessment of measures 1, 2, 3, 4, 7, and 8. The Panel conducted its analysis on the basis of
criteria that have been previously rejected by the Appellate Body and panels. The Panel did not
focus on the differences in treatment between se rvices and service suppliers of cooperative and
non-cooperative jurisdictions, i.e. the aspects of the measures that gave rise to the inconsistencies
with Article II:1 of the GATS.
1.12. Furthermore, the Panel did not carry out its assessment under Article XIV(c) of the GATS on
the basis of the contribution of the measures to the objective of securing compliance with specific
Argentine laws and regulations. The Panel relied on unsubstantiated assumptions and incomplete
reasoning not supported by the evidence with respect to the contribution of the measures to the
ends pursued and the assessment of their restrictiveness in international trade in services.
1.13. Thus, Panama considers that the Panel improperly found that measures 1, 2, 3, 4, 7, and 8
are provisionally justified under Article XIV(c) of the GATS.
1.3 The Panel erred in rendering meanin gless the term "domestic regulation" in
paragraph 2(a) of the GATS Annex on Financial Services
1.14. Argentina claimed that measures 5 and 6 were justified by paragraph 2(a) of the GATS
Annex on Financial Services (the prudential exception
5). The Panel was called upon to interpret the
prudential exception and to determine whether Argentina had met its burden of establishing that
the challenged measures were justified under that provision.
1.15. In Panama's view, the Panel failed, as treaty interpreter, to give meaning and effect to all
the terms of the provision under examination. In particular, the Panel rendered the reference to
"domestic regulation" in the heading of the prud ential exception meaningless. Panama suggested
ways to interpret this term. However, the Pane l rejected Panama's suggestions and ultimately
concluded that the prudential exception covers all types of measures affecting the supply of
financial services, not merely "domestic regulations". Panama appeals this interpretation and
requests the Appellate Body to reverse the Panel's findings with respect to the prudential
exception.

5 Panama notes that the literature normally uses the terms "financial carve-out" or "prudential
carve-out" to refer to the exception in paragraph 2(a) of the Annex on Financial Services. For ease of
reference, Panama uses the term employed by the Panel and refers to the "prudential exception" in this
submission. However, the Appellate Body may wish to use one of the more commonly-used terms.

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ANNEX B-2
EXECUTIVE SUMMARY OF ARGENTINA'S OTHER APPELLANT'S SUBMISSION
I. INTRODUCTION
1. This dispute concerns measures that Argentina has adopted to preserve the integrity of its
national tax system and to combat financial crimes such as money laundering and tax evasion. The
types of measures at issue in this dispute have been recognized by the Organization for Economic
Cooperation and Development (OECD), the G-20, and other multilateral organizations as essential
tools for enforcing domestic tax laws, preventing the erosion of domestic tax bases, ensuring the
integrity and stability of the global financial system, and achieving a level competitive playing field
in the international market for financial and other related services.
2. The measures at issue in this dispute are concerned with Argentina's inability to obtain
tax-related information from service suppliers located in jurisdictions that do not adhere to
international standards of transparency and effective information exchange in tax-related matters.
These types of measures are commonly referred to as "defensive tax measures". The eight specific
measures challenged by Panama establish various presumptions, tax determination
methodologies, registration requirements, and ot her provisions of law designed to address the
risks associated with transactions that involve service suppliers located in jurisdictions that do not
engage in effective information exchange with Argentina.
1
3. The eight defensive tax measures at issue in this dispute all refer to Decree No. 589/2013.
Decree No. 589/2013 establishes two distinct bases upon which Argentina will designate a
jurisdiction as cooperative. The first basis upon which Argentina will designate a jurisdiction as
cooperative is if that jurisdiction has entered into a tax information exchange agreement with
Argentina, or a convention on the avoidance of do uble taxation that includes a broad information
exchange clause, provided in either case that the agreement results in effective information
exchange. The second basis upon which Argentina will designate a jurisdiction as cooperative is if
that jurisdiction has entered into negotiations with Argentina toward the conclusion of either type
of agreement. A non-cooperative jurisdiction is a jurisdiction that does not satisfy either of the two
bases for designation as cooperative.
4. Panama's core allegation in this dispute is that the differential treatment accorded under the
measures at issue to services and service suppliers located in non-cooperative jurisdictions violates
the obligations of most-favoured nation and national treatment under Articles II:1 and XVII of the
General Agreement on Trade in Services (GATS), respectively. In its other appeal, Argentina seeks
review of the Panel's finding that services and service suppliers located in Argentina and in
jurisdictions that Argentina designates as cooperative are "like" those located in jurisdictions
designated as non-cooperative.
II. THE PANEL ERRED IN FINDING THAT SE RVICES AND SERVICE SUPPLIERS LOCATED
IN "COOPERATIVE" AND "NON-COOPERATIV E" JURISDICTIONS ARE "LIKE" UNDER
ARTICLE II:1 OF THE GATS
5. The Panel erred in finding that the services and service suppliers at issue in this dispute are
"like" under Article II:1 of the GATS because Panama demonstrated that the measures at issue
provide differential treatment "by reason of origin".
 2 This finding is in error for the following two
reasons.
6. First, as a matter of law, the fact that a measure provides differential treatment on the basis
of the origin of a service or service supplier is not a basis for presuming "likeness". The
"origin-based" presumption that arose under the multilateral agreements on trade in goods reflects
the fact that these agreements refer only to "like products" (and not like producers), combined
with the fact that the origin of a product does not ordinarily affect its characteristics as a product.

1 Panel Report, Section 2.3.
2 Panel Report, para. 7.365.

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7. Whereas the characteristics of goods are usually intrinsic to the good itself, the
characteristics of services are frequently insepara ble from a characteristic of the service supplier.
For this reason, Article II:1 uses the conjunctive "and" to refer to "like services and service
suppliers". Any inquiry into "likeness" under Article II:1 must therefore proceed on a cumulative
basis, taking into account, as appropriate, the rele vant characteristics of the service as well as the
relevant characteristics of the service supplier.
8. Within this framework, and unlike the case of trade in goods, the origin of a service or
service supplier may be highly relevant to its characteristics. A service or service supplier from a
particular jurisdiction may have certain characteristics as a service or service supplier precisely
because of its origin, as a result of the regulatory framework within which the service supplier
operates. Differences in the regula tory framework prevailing within a service supplier's country of
origin may affect the nature of the service that it provides and the manner in which it supplies that
service. These considerations, in turn, may affect the competitive relationships among services
and service suppliers in the marketplace.
9. For these reasons, the fact that a measure provides differential treatment "on the basis of
origin" does not provide a basis for presuming the likeness of the services and service suppliers at
issue. Even if the "origin-based" presumption de veloped in the context of trade in goods were
applicable in a GATS context, the Panel erred in finding "likeness" in the absence of a finding that
the measures provided differential treatment exclusively on the basis of origin, as argued by
Panama. On the contrary, the Panel found that the measures at issue provide differential
treatment based on differences in regulatory frameworks in cooperative and non-cooperative
jurisdictions.
10. Second, the Panel erred in reversing the burden of proof under Article II:1 of the GATS.
Despite Panama's failure to establish a prima facie case that Argentina's measures provided
differential treatment "exclusively" on the basis of origin, and the Panel's recognition that
Argentina's ability to access tax information from service suppliers is relevant to an evaluation of
likeness in this case, the Panel erroneously concluded that it was incumbent upon Argentina to
prove that this "other factor" affects the compet itive relationship between services and service
suppliers. This constitutes a separate and inde pendent reason why the Appellate Body must
reverse the Panel's conclusion that the measures at issue are inconsistent with Article II:1 of
the GATS.
III. THE PANEL ERRED IN FINDING THAT SERVICES AND SERVICE SUPPLIERS IN
ARGENTINA ARE "LIKE" SERVICES AN D SERVICE SUPPLIERS LOCATED IN
"NON-COOPERATIVE" JURISDICTIONS UNDER ARTICLE XVII OF THE GATS
11. The Panel also committed legal error when it relied on its erroneous likeness finding under
Article II:1 to conclude that services and service suppliers in Argentina were "like" services and
service suppliers located in jurisdictions designated as "non-cooperative". The Panel's likeness
finding under Article II:1 was entirely inapposite to the analysis that it was required to undertake
in the context of Article XVII. Consistent with the burden of proof, Panama was required to
establish a prima facie case that services and service suppliers of Argentine origin are "like"
services and service suppliers located in jurisdictions that Argentina designates as
non-cooperative. The Panel's prior findings under Article II:1, whatever their other shortcomings,
simply were not relevant to its analysis of whether Panama had discharged this burden.
IV. ALTERNATIVELY, THE PANEL ACTED IN CONSISTENTLY WITH ARTICLE 11 OF THE
DSU IN FINDING THAT THE SERVICES AND SERVICE SUPPLIERS AT ISSUE ARE "LIKE"
UNDER ARTICLES II AND XVII OF THE GATS
12. Alternatively, in the event that the Appellate B o d y w e r e t o f i n d t h a t A r g e n t i n a b o r e t h e
burden of proving likeness under Articles II:1 and XVII of the GATS, or that Panama had otherwise
established a prima facie case of likeness, Argentina claims on appeal that the Panel failed to act
consistently with its duties to conduct an objective assessment of the matter under Article 11 of
the DSU in reaching its findings under those provisions. The Panel ignored uncontested evidence
on the panel record which demonstrated that th e differences in regulatory frameworks between
cooperative and non-cooperative jurisdictions affe ct the nature and extent of the competitive

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relationship among services and service suppliers located in these different types of jurisdictions,
to the extent that they cannot be considered "like" under Articles II:1 and XVII of the GATS.
13. Should the Appellate Body sustain this alternative claim of error, Argentina requests that the
Appellate Body complete the legal analysis and find, on the basis of the Panel's factual findings and
uncontested evidence on the panel record, that th ese categories of services and service suppliers
are not like under Articles II:1 and XVII of the GATS.
V. REQUEST FOR FINDINGS
14. For these reasons, Argentina respectfully re quests that the Appellate Body reverse the
Panel's finding that services and service suppliers located in "non-cooperative" jurisdictions are
"like" services and service suppliers located in "cooperative" jurisdictions and in Argentina under
Articles II:1 and XVII of the GATS, respectively.
3 Consequently, Argentina respectfully requests
that the Appellate Body (1) reverse the Panel's ultimate finding that the measures at issue in this
dispute are inconsistent with Article II:1 of the GATS 4; and (2) modify the basis for the Panel's
ultimate finding that measures 2, 3, and 4 are not inconsistent with Article XVII.5

3 Panel Report, paras. 7.185-7.186, 7.365, 7.488 and 7.489.
4 Panel Report, paras. 7.367 and 8.2.b.
5 Panel Report, paras. 7.523-7.525 and 8.2.c.

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ANNEX B-3
EXECUTIVE SUMMARY OF ARGENTINA'S APPELLEE'S SUBMISSION
1 INTRODUCTION
1.1. On 27 October 2015, Panama appealed certain issues of law and legal interpretation
contained in the report of the Panel in Argentina – Measures Relating to Trade in Goods and
Services. In this submission, Argentina responds to the arguments raised by Panama on appeal on
an arguendo basis. This is because, as explained in Argentina's other appellant's submission,
Argentina believes that the Panel erred in finding that the services and service suppliers at issue in
this dispute are "like" within the meaning of Articles II:1 and XVII of the GATS. Should the
Appellate Body reverse the Panel's likeness finding, it will not be necessary for it to address any of
the claims raised by Panama on appeal. However, in the event that the Appellate Body upholds the
Panel's finding that the services and service suppliers at issue are "like", Argentina respectfully
requests that the Appellate Body reject Panama's claims of error in relation to the Panel's analysis
of Article XIV(c) of the GATS and the prudential carve-out.
2 PANAMA'S CLAIMS OF ERROR CONCERNI NG THE PANEL'S INTERPRETATION OF THE
PHRASE "TREATMENT NO LESS FAVOURABLE" IN ARTICLES II AND XVII SHOULD BE
RESOLVED ON THE GROUNDS OF LIKENESS
2.1. Panama appeals the Panel's interpretation of the phrase "treatment no less favourable" in
Articles II and XVII of the GATS and, in particular , the Panel's conclusion that the concept of "less
favourable treatment" permits a panel to take into account "regulatory aspects relating to services
and service suppliers that may affect the conditions of competition".
2.2. Argentina believes that the Panel did not err in its conclusions concerning the importance of
regulatory distinctions to a proper interpretation of Articles II and XVII of the GATS. However, for
the reasons that Argentina set forth in its other appeal, Argentina considers that regulatory
differences that affect competitive relationships among services and service suppliers are properly
examined, in the first instance, as part of the evaluation of whether the services and service
suppliers at issue may be considered "like". Notably, in its appellant submission, Panama agrees
with Argentina that the ability or inability of a Member to obtain tax-related information from
foreign service suppliers is a "likeness-related consideration"
1 that the Panel should have examined
under the heading of likeness. Had the Panel held Panama to its burden of proof in this respect,
the Panel would properly have concluded that Panama had failed to establish a prima facie case of
likeness.
2.3. Panama's failure to establish a prima facie case of likeness should have led the Panel to
reject Panama's claims under Articles II and XVII without proceeding to an examination of whether
the measures at issue provide "less favourable tr eatment". Argentina respectfully submits that the
Appellate Body should resolve the present appeals on that basis.
3 THE PANEL DID NOT ERR IN FINDING THAT THE MEASURES AT ISSUE ARE
PROVISIONALLY JUSTIFIED UNDER ARTICLE XIV(C) OF THE GATS
3.1. Panama appeals the Panel's finding that measures 1, 2, 3, 4, 7 and 8 are provisionally
justified under Article XIV(c) of the GATS. Panama contends that the Panel erred in concluding that
the measures are "designed" to secure compliance with Argentina's tax and anti-money laundering
laws and regulations, and that they are "necessary" to secure such compliance.
3.2. In relation to whether the measures are "designed" to secure compliance with Argentina's tax
and anti-money laundering laws and regulations, Panama argues that the Panel erred for three
reasons.

1 Panama's appellant's submission, para. 3.44.

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3.3. First, Panama maintains that the Panel fail ed to examine the aspects of the measures that
gave rise to a finding of inconsistency under Article II:1 of the GATS. Contrary to what Panama
suggests, it is patently evident from the Panel's analysis that it focused on the additional
information requirements and more onerous tax an d inspection burdens that apply exclusively to
transactions with service suppliers of non-cooperative jurisdictions under the measures in
determining whether these measures are designed to secure compliance with Argentina's laws and
regulations. Accordingly, the Panel correctly focused on the aspects of the measures that gave rise
to a finding of inconsistency under Article II:1 of the GATS.
3.4. Second, Panama argues that the Panel incorrectly evaluated whether measures 1, 2, 3, 4,
and 7 are designed to attain the objectives of Argentina's laws and regulations, rather than
securing compliance with specific provisions of such laws and regulations. Contrary to Panama's
argument, the Panel did not find that measures 1 to 4 and 7 attain the "general" tax collection
objectives of Argentina's measures. Rather, after carefully examining the normative content of
each of the measures with which those measures secure compliance, the Panel found that
measures 1 to 4 and 7 secure compliance with the specific obligations contained in Articles 1 and 5
of the Income Tax Law, Article 46 of the LPT, Ar ticle 1 of the CTL, Article 16 of the National
Constitution, Article 118.3 of the LSC and Article 188 of IGJ Resolution No. 7/2005.
3.5. Third, and finally, Panama argues that the Panel lacked legal basis or evidentiary support for
its conclusion that transactions with non-cooperative jurisdictions raise compliance concerns.
Contrary to Panama's argument, however, the Panel did not assume that transactions between
related parties per se violate Argentina's tax laws or otherwise raise compliance concerns. Instead,
the Panel's finding that measures 1 to 4 are designed to secure compliance with Argentina's tax
laws is based on extensive evidence on the panel record indicating that transactions between
Argentine taxpayers and service suppliers located in non-cooperative jurisdictions pose a particular
risk to the enforcement of Argentina's tax laws.
3.6. Panama further argues that the Panel erred in finding that measure 8 is designed to secure
compliance with Law 25,246 because the Panel focused on information and reporting requirements
that do not form part of measure 8. Instead, the Panel expressly relied on the due diligence
powers of the Central Bank under measure 8 in concluding that the “closer scrutiny” of transfers to
non-cooperative jurisdictions to ensure that the operations concerned are of genuine origin secures
compliance with Law 25,246.
3.7. For the foregoing reasons, the Panel did not err in finding that measures 1, 2, 3, 4, 7 and 8
are designed to secure compliance with Argentina’s laws and regulations within the meaning of
Article XIV(c) of the GATS.
3.8. Panama's appeal of the Panel's "necessity" analysis relates exclusively to the "contribution"
and "trade-restrictiveness" factors. In Argentina's view, Panama's appeal relates to the Panel's
assessment of the evidence and arguments before it, and not to the Panel's application of
Article XIV(c) to the facts before it. As such, Panama should have brought its claims under
Article 11 of the DSU, and its failure to do so provides a separate and independent basis for the
Appellate Body to dismiss the entirety of Panama's claims at the threshold.
3.9. In the unlikely event that the Appellate Body were to consider that Panama's claims of error
constitute legal characterization claims, Argentina considers that Panama has failed to establish
that the Panel committed legal error in concluding that the measures contribute to securing
compliance with Argentina's laws and regulations and have only "limited restrictive effect on
international trade in services".
3.10. Consistent with the Appellate Body's guidance in Brazil – Retreaded Tyres , the Panel found
that each of the measures contributed, individually, to secure compliance with Argentina's laws
and regulations. The Panel then found that these measures, operating collectively in the context of
a comprehensive policy to combat harmful tax prac tices, have a combined effect that is greater
than the sum of each measure taken individually. As such, these measures operate synergistically

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so that their collective effect, as the Panel fo und, is greater than the sum of the individual
components.2
3.11. In relation to trade restrictiveness, the Panel did not fail to take into account that the
measures at issue may apply to transactions that serve a legitimate business purpose. The Panel
took this argument of Panama into account, but was ultimately not persuaded by it. Moreover,
Panama is incorrect that the Panel did not have a sufficient evidentiary basis or did not properly
explain its finding that the measures at issue had only a "limited" restrictive effect on international
trade in services. To the contrary, the Panel pr ovides a reasoned and adequate explanation for
those findings, in relation to each of the measures at issue.
3.12. For the reasons outlined above, the Panel did not err in finding that measures 1, 2, 3, 4, 7
and 8 are provisionally justified under Article XIV(c) of the GATS because they are necessary to
secure compliance with Argentina's laws and re gulations. Accordingly, Argentina respectfully
requests that the Appellate Body uphold the Panel's findings in paragraph 7.740 of the
Panel Report.
4 THE PANEL DID NOT ERR IN ITS INTERPRETATION OF THE PRUDENTIAL CARVE-OUT
4.1. On appeal, Panama claims that the Panel erred in its interpretation of the prudential
carve-out by finding that the prudential carve-out applies to all measures affecting the supply of
financial services. Panama argues that the Pane l failed to give meaning to the reference to
"domestic regulations" in the title of the prudential carve-out, which in Panama's view exhaustively
defines the types of measures that are subject to justification under that provision.
4.2. At the same time, Panama now seems prepared to accept that "all measures of general
application affecting trade in services" are covered by the prudential carve-out.
3 In light of
Panama's concession, one has to wonder about the practical effect of its appeal, because Panama
does not seem to take the position that measures 5 and 6 are not measures of the kind that the
Panama now admits would qualify as domestic regulations under Article VI.
4.3. In any event, Panama's claim of error hi nges on the proposition that the title of the
prudential carve-out exhaustively defines the types of measures that fall within its purview, while
the actual text of the provision defines only the types of violations that may be subject to
justification. This proposition, of course, is unten able. In establishing that a Member "shall not be
prevented from taking measures for prudential re asons", the drafters of the GATS established no
limitation on the types of measures covered by the exception other than the prudential rationale
that leads to their adoption. As the Panel correctly noted, Panama’s interpretation would read the
terms “notwithstanding any other provisions of the Agreement”, and “where such measures do not
conform with the provisions of the Agreement” out of the text of the prudential carve-out.
4.4. Accordingly, Argentina respectfully reques ts that the Appellate Body uphold the Panel's
finding in paragraph 7.847 of the Panel Report th at the prudential carve-out covers all types of
measures affecting the supply of financial services under paragraph 1(a) of the Annex on
Financial Services of the GATS.

2 Panel Report, para. 7.706-7.712; 7.714-7.717.
3 Panama's appellant's submission, para. 6.19.

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ANNEX B-4
EXECUTIVE SUMMARY OF PANAMA'S APPELLEE'S SUBMISSION
1.1. Panama considers that the Panel correctly concluded that the services and service suppliers
at issue are "like" within the meaning of Articles II:1 and XVII of the GATS . In particular, Panama
is of the view that, where measures distinguish on their face on the basis of the origin of goods,
services, or service suppliers, "likeness" shall be established. In this dispute, the Panel should
have ended its determination once it found that the measures accord different treatment
"by reason of origin".

1.2. In any event, the regulatory framework in which services and service suppliers operate is not
relevant to determine the competitive relationship between services and service suppliers and their
"likeness" inter se. Even assuming arguendo that the regulatory framework may be relevant, the
Panel correctly found that Argentina had to pr ove that such regulatory framework affects
"likeness". It is a general principle of evidence that the party that alleges a fact bears the burden
of proving it. In this case, as Argentina argued that the regulatory framework plays a role in the
determination of "likeness", it bore the burden of proving that fact. A complainant in a WTO
dispute cannot bear the burden of identifying the regulatory concerns of the respondent.

1.3. Furthermore, Argentina has not demonstrat ed that the Panel acted inconsistently with
Article 11 of the DSU. There are no reasons to subm it that the Panel did not take into account the
evidence adduced by Argentina. The Panel exer cised its discretion as the trier of facts and
determined, based on what it considered as the relevant facts, that Argentina had not
demonstrated the existence of "likeness". Indeed, the evidence presented by Argentina shows that
the services and service suppliers at issue are "like".

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ANNEX C
ARGUMENTS OF THE THIRD PARTICIPANTS
Contents Page
Annex C-1 Executive summary of Australia's third participant's submission C-2
Annex C-2 Executive summary of Brazil's third participant's submission C-3
Annex C-3 Executive summary of the European Union's third participant's submission C-4
Annex C-4 Executive summary of Guatemala's third participant's submission C-6
Annex C-5 Executive summary of the United States' third participant's submission C-7

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ANNEX C-1
EXECUTIVE SUMMARY OF AUSTRALIA'S THIRD PARTICIPANT'S SUBMISSION
Paragraph 2 of the Annex on Financial Services

1. Australia's view is that the scope of the pruden tial exception in paragraph 2(a) of the Annex
on Financial Services should be interpreted broadly. The text of paragraph 2(a) is silent on any
limitation, which leads to the presumption that no limitation exists.
2. Australia agrees with the Panel's analysis that the words of the text indicate that the scope
of application is the entirety of the GATS, subject to falling within the meaning of financial services
in paragraph 1(a) of the Annex on Financial Services.
3. In addition, Australia argues that the heading 'domestic regulation' provides context, but can
be given meaning without limiting the scope of the prudential exception.
4. Furthermore, the technique of cross-referencing in other parts of the GATS suggests that the
drafters did not wish to limit the scope of the prudential exception.
5. The objects and purposes of the GATS, in emph asising economic growth as the purpose of
the liberalisation of trade in services and recognising the right of members to make regulations,
also support a broad interpretation.
6. This interpretation is also supported by subsequent practice.

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ANNEX C-2
EXECUTIVE SUMMARY OF BRAZIL'S THIRD PARTICIPANT'S SUBMISSION
1. In its Third Party Submission, Brazil raises four main points regarding the present dispute.
First, Brazil reaffirms the importance of international financial regulation for the stability of the
financial system and the security of economies wo rldwide. The prevention of deceptive practices,
therefore, remains crucial in the global efforts towards promoting stability of the international
financial system.
2. Second, Brazil emphasizes that the guiding principle of the "likeness" analysis in the GATS is
the protection of competitive relationships between domestic and foreign services and service
providers, which is to be assessed on a case-by- case basis. For that, in the consideration of
"likeness" of services and service providers, the assessment must take into account the
particularities of this sector, as well as the regulatory framework and international commitments of
the country where the service provider is located.
3. Third, Brazil understands that in GATS the regulatory aspects pertain to the likeness, but not
to the "treatment less favourable" analysis. Contrary to the "likeness" criterion, the consideration
of regulatory aspects in the "treatment less favourable" could potentially undermine the exceptions
laid out in Article XIV of the GATS.
4. Finally, paragraph 2(a) of the Annex of Financial Services gives Members significant leeway
for the adoption of measures for prudential reasons to maintain the stability of that Member's
financial market. Accordingly, Brazil understands that domestic regulations may affect either
foreign or domestic services or both, as long as they are adopted with a view to organizing and
regulating the domestic market of services.

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ANNEX C-3
EXECUTIVE SUMMARY OF THE EUROPEAN UNION'S THIRD PARTICIPANT'S SUBMISSION
A. Like services and service suppliers
1. The first of four issues in this appeal concerns the interpretation of the concept of "likeness"
in Articles II and XVII of the GATS. The European Union considers that it is appropriate to conclude
that, if the distinction in a measure is exclusively based on origin, "likeness" can automatically be
established and there is no need to further assess likeness criteria. Indeed, when a measure
provides explicitly, or by necessary implication, for different regulatory treatment based on origin,
there is a de jure distinction which is based on origin.
2. In case the measure itself draws up a list of countries that benefit from a certain "more
favourable treatment", it cannot be disputed that the measure is based on origin explicitly. The
European Union considers that the Panel did examine whether the regulatory distinction was
exclusively based on origin and made a finding. Had the Panel found that the distinction in Decree
No. 589/2013 was not exclusively based on origin, it would have had to assess whether the fact
that a service was provided by a supplier from a country that is labelled as "non-cooperative"
(which depends on the regulatory framework applicable in the home country) was reflected in the
competitive relationship in the marketplace between the allegedly like services and suppliers. In
particular, if consumers considered that this fact meant that they are not in a competitive
relationship, the services and suppliers would not be "like".
3. In respect of the distribution of the burden of proof to show "likeness", the European Union
considers that Panama was obliged to establish a prima facie case of "likeness". Once this proof is
made, it is for the responding party to rebut these showings as it is more familiar with its own
regulatory framework.
B. Treatment no less favourable
4. The second issue concerns the interpretation of the term "less favourable treatment" in
Articles II and XVII of the GATS. With respect to the context of the term "treatment no less
favourable" the European Union considers that the Panel's heavy reliance on the reference to
"service suppliers" in the GATS and the distinctio n the Panel drew with Articles I and III:4 of the
GATT 1994 would seem to be exaggerated. A close connection also exists between products and
producers. However, the consideration of the connection between services and suppliers is most
appropriately done in case of the determination of "likeness".
5. The European Union objects to the test that the regulatory framework in which suppliers
operate may be taken into account when determining whether a measure provides "less favourable
treatment" provided that these aspects affect the conditions of competition. Such a test is too
short and pays insufficient attention to the reasons for neutralising a competitive advantage and
thus to the objectives of the regulatory distinction. The European Union considers it inappropriate
to develop a test under Articles II:1 and XVII of the GATS that would accept the neutralisation of a
competitive advantage without even looking at the ob jectives of such neutralisation. In any event,
a panel should do more than merely establish that the conditions of competition are modified. It
must establish a genuine relationship between the measure and the detrimental impact on services
or suppliers of a certain origin.
C. The exception in Article XIV(c) of the GATS
6. With respect to the interpretation of Article XIV(c) of the GATS, the European Union notes
that what should be analysed under sub-paragraph (c) is whether the aspects of the measures
that have given rise to the findings of inconsistency with an obligation in the GATS meet the
requirements of that sub-paragraph.

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7. The European Union considers that the existing exceptions in Article XIV of the GATS should
be read in an evolutionary and non-restrictive manner, on the basis of customary rules for
interpretation of international agreements, while accommodating for developments in societal
concerns and for policy objectives that the nego tiating parties of the GATT 1994 or the GATS may
not have been aware of at the time. Such an approach was confirmed already by the Appellate
Body in US – Shrimp.
8. At the same time, the European Union notes that sub-paragraph (c) should not be
interpreted such as to enable circumvention of co nditions attached to the exceptions in the GATS.
When relying on Article XIV(c), the responding Member needs to (i) identify the laws and
regulations with which the challenged measure is intended to secure compliance; (ii) prove that
those laws and regulations are not in themselves inconsistent with WTO law; and (iii) provide that
the measure challenged is designed to secure compliance with those laws or regulations.
Furthermore, the responding Member must also show that the measure is "necessary" under
Article XIV(c), demonstrating that there are no less trade restrictive alternative measures
reasonably available, which make an equivalent contribution to the objective pursued. Finally, the
responding Member must demonstrate that the me asure meets the conditions of the chapeau of
Article XIV(c) of the GATS.
9. The European Union agrees that a "coincidence between the objectives of the relevant
measures and its enforcement mechanisms" is not "dispositive" for finding that the conditions of
Article XIV(c) are met. What a responding Member must identify under Article XIV(c) of the GATS
are the specific obligations with which the enforcement measures secure compliance.
D. Scope of the "prudential exception"
10. With respect to the scope of the prudential ex ception in Paragraph 2(a) of the GATS Annex
on financial Services, the European Union disagrees with Panama's argument that measures that
would fall within the scope of one of the six types of prohibited market access limitations, listed in
Article XVI:2 of the GATS, could not be justified under the prudential exception because they
would not be "domestic regulations". The European Union does not consider that there are certain
violations of obligations in the GATS, particularly Article XVI, that could not be justified under the
prudential exception. The prudential exception pr ovides no limitation on the types of measures
covered by its scope other than the prudential rationale that leads to their adoption.

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ANNEX C-4
EXECUTIVE SUMMARY OF GUATEMALA'S THIRD PARTICIPANT'S SUBMISSION
1. Guatemala provides its views on certain legal arguments advanced by the Parties with
respect to the concept of "likeness" of services and service suppliers and "treatment no less
favourable" under Articles II:1 and XVII of the GATS.
2. Guatemala considers that any panel should conclude on the existence of likeness once it
finds that a measure accords different treatment exclusively by reason of origin. In this case, there
should be always a presumption of likeness unless proven otherwise.
3. In the view of Guatemala, a presumption of likeness can be rebutted only by taking into
consideration intrinsic characteristics of the services or service suppliers.
4. In the context of "treatment no less favourable", regardless of whether having access to tax
information on foreign suppliers as a matter of fact or a matter of law modifies the conditions of
competition, the Panel's interpretation expands the limits of Articles XIV and XIV bis and
introduces them in the context of "no less favourable treatment" analysis. This interpretation is
unwarranted and highly problematic.
5. Guatemala is of the view that, as long as Members comply with their GATS obligations and
commitments, they are free to pursue any objective they consider appropriate. However, only the
objectives expressly envisaged by the exceptions of the GATS may justify violations of GATS
obligations.

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ANNEX C-5
EXECUTIVE SUMMARY OF THE UNITED STATES' THIRD PARTICIPANT'S SUBMISSION
1. The United States welcomes the opportunity to provide its views on certain issues raised in
this dispute, in which Panama and Argentina each appeal certain findings by the Panel. The
United States has a strong interest in the proper interpretation of the General Agreement on Trade
in Services ("GATS") and, in particular, in the develo pment of an effective and coherent approach
to interpreting Article II and Article XVII, and to interpreting Paragraph 2(a) of the Annex on
Financial Services to the GATS. The issues presented in these appeals are issues with systemic
importance to Members, including issues that touch on Members' ability to regulate services to
fulfill public policy objectives.
2. Articles II and XVII both discipline a Member 's treatment of the services and service
suppliers of other Members, requiring that it be no less favorable than the treatment accorded to
like services and service suppliers of any other Me mber (in the case of Article II) or to the like
services and service suppliers of the Member itself (in the case of Article XVII). Application of
these disciplines accordingly requires a comparison , with the treatment of one Member's services
and service suppliers serving as the benchmark for treatment of another's like services and
services. Likeness is obviously critical to the validity – if two things subject to comparison are
dissimilar, then differences in their treatment may arise from the dissimilarities, rather than some
sort of discrimination between them based on origin. Under the comparable most favored nation
and national treatment disciplines in Articles I and III, respectively, of GATT 1947 and GATT 1994,
panels developed a number of factors to determine whether products were sufficiently like for this
comparison – physical characteristics, end uses, customer perceptions, as well as any additional
relevant factors. In the services context, this inquiry would involve consideration of the nature of
the services and the types of services suppliers.
3. The findings of the Panel and the arguments of the participants in this appeal present
several concerns with regard to the conduct of these comparisons under the GATS, involving the
identification of like services and service suppliers, as well as the comparison of the treatment
accorded to services and service suppliers of another Member.
4. Under GATT 1947 and GATT 1994, Panels developed a principle that in limited
circumstances, when national origin was the sole basis for treatment of imported products, a panel
may assume that they were like domestic products without conducting a more detailed analysis.
The Panel in this proceeding correctly rejected Panama's argument that this principle meant that
treatment triggered by the nationality of the supplier (in some modes of supply) allowed an
assumption that services and service suppliers were like. However, the Panel erred in then basing
its likeness analysis entirely on an inquiry into whether there were factors other than nationality
that determined Argentina's treatment of services and services suppliers. A proper analysis would
have addressed the nature and characteristics of the services and service suppliers at issue,
including any relevant regulatory characteristics, rather than the treatment of services and
services not yet determined to be like.
5. In the comparison of the treatment of the se rvices and service suppliers in question, the
Panel correctly recognized that it needed to take account of the regulatory context of the
measures, but did so incorrectly. The Panel incorrectly viewed Panama's regulatory framework as a
competitive advantage, and found that Argentina was entitled to apply tax measures to offset that
advantage. However, the key finding was that Arge ntina's measures were aimed at protecting its
ability to assess taxes based on accurate information. In this context, Panama's refusal to share
tax information was a competitive disadvantage in its service suppliers' efforts to sell to Argentine
customers who sought to obey the law. Footnote 10 to Article XVII specifies that Argentina bears
no obligation to compensate for this disadvantage by allowing the use of unverifiable information
provided by Panamanian suppliers.