ARGENTINA – MEASURES AFFECTING THE IMPORTATION OF GOODS REPORTS OF THE PANEL
Document: Addendum
Date: 22 August 2014
Document codes: WT/DS438/R/Add.1; WT/DS444/R/Add.1; WT/DS445/R/Add.1; WT/DS438/R; WT/DS444/R; WT/DS445/R.
Complainant: EU
Respondent: Argentina
Third parties: Australia, Canada, China, Ecuador, Guatemala, India, Israel, Japan, South Korea, Norway, Saudi Arabia, Switzerland, Taiwan, Thailand, Turkey, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. X:1, X:3, XI:1  GATT 1994Art. 1.3, 1.4, 1.6, 3.2, 3.3, 3.5(f)  Import LicensingArt. III:4  GATT 1994

ARGENTINA – MEASURES AFFECTING THE IMPORTATION
OF GOODS
REPORTS OF THE PANEL
Addendum
This addendum contains Annexes A to D to the Reports of the Panel to be found in document

 • •

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A Working Procedures of the Panel A-1
ANNEX B
ARGUMENTS OF THE PARTIES
EUROPEAN UNION
Contents Page
Annex B-1 First part of the executive summary of the arguments of the European Union B-2
Annex B-2 Second part of the executive summary of the arguments of the European Union B-13
UNITED STATES
Contents Page
Annex B-3 First part of the executive summary of the arguments of the United States B-25
Annex B-4 Second part of the executive summary of the arguments of the United States B-37
JAPAN
Contents Page
Annex B-5 First part of the executive summary of the arguments of Japan B-48
Annex B-6 Second part of the executive summary of the arguments of Japan B-60
ARGENTINA
Contents Page
Annex B-7 First part of the executive su mmary of the arguments of Argentina B-72
Annex B-8 Second part of the executive summary of the arguments of Argentina B-83
 • •

ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Executive summary of the arguments of Australia C-2
Annex C-2 Executive summary of the arguments of Canada C-6
Annex C-3 Executive summary of the arguments of Israel C-9
Annex C-4 Executive summary of the arguments of the Republic of Korea C-10
Annex C-5 Executive summary of the arguments of Norway C-12
Annex C-6 Executive summary of the arguments of the Kingdom of Saudi Arabia C-16
Annex C-7 Executive summary of the arguments of Chinese Taipei C-19
Annex C-8 Executive summary of the arguments of Turkey C-21
ANNEX D
PRELIMINARY RULINGS
Contents Page
Annex D-1 Preliminary Ruling by the Panel, 16 September 2013 D-2
Annex D-2 Preliminary Ruling by the Panel, 20 November 2013 D-14
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX A
WORKING PROCEDURES OF THE PANEL
Adopted on 14 June 2013

1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following
Working Procedures shall apply.

General

2. The deliberations of the Panel and the document s submitted to it shall be kept confidential.
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter
"party") from disclosing statements of its own positions to the public. Members shall treat as
confidential information submitted to the Panel by another Member which the submitting Member
has designated as confidential. Where a party submits a confidential version of its written
submissions to the Panel, it shall also, upon request of a Member, provide a non-confidential
summary of the information contained in its submis sions that could be disclosed to the public. The
Panel may, after consultation with the parties, adopt additional procedures for the protection of
business confidential information (BCI) provided by the parties in the course of these proceedings.

3. The Panel shall meet in closed session. The parties, and Members having notified their
interest in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU
(hereafter "third parties"), shall be present at the meetings only when invited by the Panel to
appear before it.

4. Each party and third party has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and third party shall have the responsibility for all
members of its own delegation and shall ensure th a t e a c h m e m b e r o f s u c h d e l e g a t i o n a c t s i n
accordance with the DSU and these Working Procedures, particularly with regard to the
confidentiality of the proceedings.

Submissions

5. Before the first substantive meeting of the Panel with the parties, each party shall submit a
written submission in which it presents the facts of the case and its arguments, in accordance with
the timetable adopted by the Panel. Each party sha ll also submit to the Panel, prior to the second
substantive meeting of the Panel, a written rebuttal, in accordance with the timetable adopted by
the Panel.

6. A party shall submit any request for a prelimin ary ruling at the earliest possible opportunity
and in any event no later than in its first written submission to the Panel. If any of the
complainants requests such a ruling, the respondent shall submit its response to the request in its
first written submission. If the respondent reques ts such a ruling, the complainants shall submit
their responses to the request prior to the first su bstantive meeting of the Panel, at a time to be
determined by the Panel in light of the request. Exceptions to this procedure shall be granted by
the Panel upon a showing of good cause.

7. Each party shall submit all factual evidence to the Panel no later than during the first
substantive meeting, except with respect to evid ence necessary for purposes of rebuttal, answers
to questions or comments on answers provided by any of the other parties. Exceptions to this
procedure shall be granted by the Panel upon a sh owing of good cause. Where such exception has
been granted, the Panel shall accord the other party or parties a period of time for comment, as
appropriate, on any new factual evidence submitted after the first substantive meeting.

8. Where the original language of an exhibit is not a WTO working language, the submitting
party or third party shall simultaneously submit a translation of the exhibit into a WTO working
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language. Any objection as to the accuracy of a translation should be raised promptly in writing,
no later than the next filing or meeting (whichever occurs earlier) following the submission which
contains the translation in question. Any objection shall be accompanied by a detailed explanation
of the grounds of objection and an alternative translation. The Panel may grant a reasonable
extension of time for filing an objection as to the accuracy of a translation, upon a showing of good
cause.

9. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions attached as an
Annex, to the extent that it is practical to do so.

10. To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute. For example, exhibits su bmitted by the complainants shall be numbered,
respectively, EU-1, EU-2, etc., or US-1, US-2, etc., or JPN-1, JPN-2, etc. Exhibits submitted by the
respondent shall be numbered ARG-1, ARG-2, etc. If the last exhibit in connection with the first
submission was numbered, for example, EU-5, the first exhibit of the next submission shall be
numbered EU-6. Any joint exhibits submitted by the complainants shall be numbered JE-1, JE-2,
etc.

Questions

11. The Panel may at any time pose questions to any of the parties or third parties, orally or in
writing, including prior to any substantive meeting. Each party shall respond to those questions
within the deadlines determined by the Panel.

Substantive meetings

12. Each party shall provide to the Panel the list of members of its delegation in advance of each
meeting with the Panel and no later than at 5.00 p.m., local Geneva time, the previous working
day.

13. The first substantive meeting of the Panel wi th the parties shall be conducted as follows:

a. The Panel shall invite each of the complainants to make an opening statement to
present its case first. Subsequently, the Panel shall invite the respondent to present
its point of view. Before each party takes the floor, it shall provide the Panel and other
participants at the meeting with a provisional written version of its statement. In the
event that interpretation is needed, each pa rty shall provide additional copies for the
interpreters, through the Panel Secretary. Each party shall make available to the Panel
and the other parties the final written version of its statement, preferably at the end
of the meeting, and in any event no later than at 5.00 p.m., local Geneva time, on the
first working day following the final day of the meeting.

b. After the conclusion of the statements, th e Panel shall give each party the opportunity
to ask each other questions or make comments, through the Panel. Each party shall
then have an opportunity to answer these questions orally. Each party shall send in
writing, within a timeframe to be determined by the Panel, any questions posed to the
other party or parties to which it wishes to receive a response in writing. Each party
shall be invited to respond in writing to the written questions posed by another party
or parties within a deadline to be determined by the Panel.

c. The Panel may subsequently pose questions to the parties. Each party shall then have
an opportunity to answer these questions orally. The Panel shall send in writing,
within a timeframe it will determine, any questions to the parties to which it wishes to
receive a response in writing. Each party shall respond in writing to such questions
within a deadline determined by the Panel.

d. Once the questioning has concluded, the Panel shall afford each party an opportunity
to present a brief closing statement; the complainants shall present their closing
statements first.
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14. The second substantive meeting of the Panel wi th the parties shall be conducted as follows:

a. The Panel shall ask the respondent if it wishes to avail itself of the right to present its
case first. If so, the Panel shall invite the respondent to present its opening
statement, followed by the complainants. If the respondent chooses not to avail itself
of that right, the Panel shall invite each of the complainants to present its opening
statement first. Before each party takes the floor, it shall provide the Panel and other
participants at the meeting with a provisional written version of its statement. In the
event that interpretation is needed, each pa rty shall provide additional copies for the
interpreters, through the Panel Secretary. Each party shall make available to the Panel
and the other parties the final written version of its statement, preferably at the end
of the meeting, and in any event no later than at 5.00 p.m., local Geneva time, on the
first working day following the final day of the meeting.

b. After the conclusion of the statements, th e Panel shall give each party the opportunity
to ask each other questions or make comments, through the Panel. Each party shall
then have an opportunity to answer these questions orally. Each party shall send in
writing, within a timeframe to be determined by the Panel, any questions posed to the
other party or parties to which it wishes to receive a response in writing. Each party
shall be invited to respond in writing to the questions posed by another party or
parties within a deadline to be determined by the Panel.

c. The Panel may subsequently pose questions to the parties. Each party shall then have
an opportunity to answer these questions orally. The Panel shall send in writing,
within a timeframe it will determine, any questions to the parties to which it wishes to
receive a response in writing. Each party shall respond in writing to such questions
within a deadline determined by the Panel.

d. Once the questioning has concluded, the Pa nel shall afford each party an opportunity
to present a brief closing statement; the party that presented its opening statement
first, shall present its closing statement first.

Third parties

15. The Panel shall invite each third party to transmit to the Panel a written submission prior to
the first substantive meeting with the parties, in accordance with the timetable adopted by the
Panel.

16. Each third party shall also be invited to presen t its views orally during a session of this first
substantive meeting, set aside for that purpose. Ea ch third party shall provide to the Panel the list
of members of its delegation in advance of this session and no later than at 5.00 p.m., local
Geneva time, the previous working day.

17. The third party session shall be conducted as follows:

a. All parties and third parties may be pres ent during the entirety of this session.

b. The Panel shall first hear the arguments of the third parties in alphabetical order.
Third parties present at the third party se ssion and intending to present their views
orally at that session, shall provide the Panel, the parties and other third parties with
provisional written versions of their statements before they take the floor. In the
event that interpretation is needed, each third party shall provide additional copies for
the interpreters, through the Panel Secretary. Third parties shall make available to the
Panel, the parties and other third parties the final written versions of their statements,
preferably at the end of the session, and in any event no later than at 5.00 p.m., local
Geneva time, on the first working day following the session.

c. After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to pose questions to any of the third parties for
clarification on any matter raised in the third parties' submissions or statements. The
respective third party shall then have an opportunity to answer these questions orally.
Each party shall send in writing, within a timeframe to be determined by the Panel,
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any questions to a third party to which it wishes to receive a response in writing. Each
third party shall be invited to respond in writing to these questions within a deadline
to be determined by the Panel.

d. The Panel may subsequently pose questions to the third parties. The respective third
party shall then have an opportunity to answer these questions orally. The Panel shall
send in writing, within a timeframe it will determine, any questions to the third parties
to which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to such questions within a deadline determined by the Panel.

Descriptive part

18. The description of the arguments of the partie s and third parties in the descriptive part of
the Panel report shall consist of executive summari es provided by the parties and third parties,
which shall be annexed as addenda to the report . These executive summaries shall not in any way
serve as a substitute for the submissions of the parties and third parties in the Panel's examination
of the case.

19. Each party shall submit executive summaries of the facts and arguments as presented to the
Panel in its written submissions and oral statements, in accordance with the timetable adopted by
the Panel. These summaries may also include a summary of responses to questions. Each such
executive summary shall not exceed 15 pages. Th e Panel will not summarize in the descriptive
part of its report, nor annex to its report, the parties' responses to questions.

20. Each third party shall submit an executive summary of its arguments as presented in its
written submission and statement in accordance with the timetable adopted by the Panel. This
summary may also include a summary of response s to questions, where relevant. The executive
summary to be provided by each third party shall not exceed 6 pages.

Interim review

21. Following issuance of the Panel's interim report, each party may submit a written request to
review precise aspects of the interim report and may request a further meeting with the Panel, in
accordance with the timetable adopted by the Pane l. The right to request such a meeting shall be
exercised no later than at the time the written request for review is submitted.

22. In the event that no further meeting with the Panel is requested, each party may submit
written comments on the written requests for review filed by any of the other parties, in
accordance with the timetable adopted by the Panel. Such comments shall be limited to
commenting on the written requests for review filed by any of the other parties.

23. The Panel's interim report, as well as the final report prior to its official circulation to the
Members, shall be kept strictly confidential and shall not be disclosed.

Service of documents

24. The following procedures regarding service of documents shall apply:

a. Each party and third party shall submit all documents to the Panel by filing them with
the DS Registry (office No. 2047).

b. Each party and third party shall file seven (7) paper copies of all documents it submits
to the Panel. However, when exhibits are provided on CD-ROMS/DVDs, three (3)
CD-ROMS/DVDs shall be filed; in that case, where appropriate, three (3) paper copies
of those exhibits shall also be filed. The DS Registrar shall stamp the documents with
the date and time of the filing. The paper version shall constitute the official version
for the purposes of the record of the dispute.

c. Each party and third party shall also provide, at the same time as it files the paper
versions, an electronic copy of all documents it submits to the Panel, preferably in
Microsoft Word format, either on a CD-ROM, a DVD or as an e-mail attachment. If the
electronic copy is provided by e-mail, it should be addressed to *****@wto.org, with
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a copy to *****.*****@wto.org, *****.*****@wto.org, and *****.*****@wto.org.
If a CD-ROM or DVD is provided, it shall be filed with the DS Registry.

d. Each party shall serve any document submitted to the Panel directly on the other
parties in paper form and electronically at the time that it transmits such document to
the Panel. Each party shall, in addition, serve directly on all third parties its written
submissions in advance of the first substantive meeting with the Panel at the time that
it transmits such document to the Panel. Each third party shall serve any document
submitted to the Panel directly on the parties and all other third parties in paper form
and electronically at the time that it transmits such document to the Panel. A party or
third party may submit its documents to other parties or third parties only
electronically, subject to the prior written approval of the recipient party or third party
and provided that the Panel Secretary is notified of this arrangement. Each party and
third party shall confirm, in writing, that copies have been served as required at the
time it provides each document to the Panel.

e. Each party and third party shall file its documents with the DS Registry and serve
copies on the other parties (and third parties, where appropriate) by 5.00 p.m., local
Geneva time, on the due dates established by the Panel.

f. The Panel shall provide the parties with an electronic version of the descriptive part,
the interim report and the final report, as well as of other documents as appropriate.
When the Panel transmits to the parties or third parties both paper and electronic
versions of a document, the paper version sh all constitute the official version for the
purposes of the record of the dispute.

WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX B
ARGUMENTS OF THE PARTIES
EUROPEAN UNION
Contents Page
Annex B-1 First part of the executive summary of the arguments of the European Union B-2
Annex B-2 Second part of the executive summary of the arguments of the European Union B-13
UNITED STATES
Contents Page
Annex B-3 First part of the executive summary of the arguments of the United States B-25
Annex B-4 Second part of the executive summary of the arguments of the United States B-37
JAPAN
Contents Page
Annex B-5 First part of the executive summary of the arguments of Japan B-48
Annex B-6 Second part of the executive summary of the arguments of Japan B-60
ARGENTINA
Contents Page
Annex B-7 First part of the executive su mmary of the arguments of Argentina B-72
Annex B-8 Second part of the executive summary of the arguments of Argentina B-83
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX B-1
FIRST PART OF THE EXECUTIVE SUMMARY
OF THE ARGUMENTS OF THE EUROPEAN UNION
1. INTRODUCTION AND FACTUAL BACKGROUND

1. In its first written submission the European Union challenges certain instruments used by
Argentina in order to pursue its policy of "managed trade", which includes protecting the domestic
industry against imports and promoting import substitution. The European Union challenges two
main measures (i) the non-automatic import license system known as the Declaration Jurada
Anticipada de Importacion (" DJAI system"); and (ii) the Restrictive Trade-Related requirements
("RTR requirements ") imposed by Argentina. The European Union then shows that these
measures infringe fundamental principles enshrined in the GATT and the Import Licensing
Agreement.
1.1. DJAI
 SYSTEM
2. The main elements of the DJAI system are: (a) no product can be imported into Argentina
without the prior authorisation of the Argentinean Government; (b) traders are obliged to request
this authorisation through the submission of an electronic "sworn declaration", in advance of any
importation; (c) various bodies of the Argentinean Government and, most prominently, the
Secretariat for Domestic Trade of the Ministry of Economy (the " Secretariat for Domestic
Trade"), have the right to block the authorisation of the requested importation, through the
placing of the mention "Observation" ("Observada") in the electronic system; (d) if the prospective
importer wishes to continue with its plan to import the goods, then he/she must contact directly
the governmental body that has registered its ob jection and make an effort to convince that
governmental body to remove that objection; (e ) there are no limits on the discretion of the
governmental bodies to block imports, or on the duration of the blockage; (f) the Argentinean
Customs authorities would not allow the release of the imported goods and the Central Bank of
Argentina will not authorise the payment in fo reign currency for the imported goods (nor the
opening of a letter of credit, or the issue of a guarantee in favour of the importer) unless all
governmental bodies have recorded into the electronic system their approval of the importation, or
have not registered into the system any objection.

3. The DJAI system covers virtually all goods. This is expressly stated in the Preamble of
Resolution 1/2012 issued by the Secretariat for Dome stic Trade. Likewise, the DJAI system covers
all types of persons and entities wishing to import goods into Argentina.

4. There are a number of Argentinean governmental entities that have the right to review and
block importation through the DJAI system. The European Union understands that these are: the
Secretariat for Domestic Trade, ANMAT, AFIP , SEDRONAR, DGRSS, SENASA and INV. Argentina
has not published any legal instruments authorising any other governmental bodies to review
imports through the DJAI system. However, there are press releases issued by the Ministry of
Industry, which indicate that the National Institute of Industrial Technology ("INTI") may also be
reviewing and blocking imports.

5. Argentina has not published the grounds on the basis of which the Secretariat for Domestic
Trade and the other governmental entities listed above may block a specific importation. In
relation to the Secretariat for Domestic Trade, Resolution 1/2012 describes its mandate in very
broad and vague terms: the Secretariat for Domestic Trade is granted the power to review imports
in order to "ensure that the domestic market of Argentina is not adversely affected" by inter alia
the "quantity of the imports" and their "repercussions on domestic trade". It also states that (a)
the Secretariat for Domestic Trade has the power to review and block the importation of all goods
into Argentina; and (b) there is no limitation on the Secretariat's broad and unfettered discretion
to block imports. Argentina does not publish the number of imports that it blocks through the DJAI
system. However, publicly available information indicates that Argentina has used the DJAI system
extensively in order to block a very significant number of imports. For example, according to news
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reports, of blocked imports has been estimated at 65% of all applications, or as having reached
the number of 130.000.

6. In addition, the Argentinean courts have rendered a number of judgments confirming that
the DJAI system constitutes a non-automatic import licensing system and that the Secretariat for
Domestic Trade, in particular, enjoys unfettered discretion to block imports.

7. The Secretariat for Domestic Trade often uses the DJAI system in order to impose on
importers commitments that are often trade rest rictive themselves. These commitments typically
include the obligation to import lower quantities of goods than previously planned, or the
obligation to export goods from Argentina. If the prospective importers refuse to accept those
commitments, then their imports are altogether prohibited.

8. The Secretariat for Domestic Trade's use of the DJAI system is also evidenced in a Note,
which the Secretariat for Domestic Trade distributed to various business associations around the
22 February 2012. As clarified in the European Unio n's response to question 27 of the Panel, the
European Union understands that this Note has b een distributed in a "generic" form to a large
number of trade associations and import facilitating-brokerage companies in Argentina so that it
would be publicly available to all interested applicants. This Note lists, inter alia, the types of
information that importers should submit to the Secretariat for Domestic Trade, once the latter has
registered into the DJAI system its objection for a particular import. The information must include
the prices for all products sold by the importer in Argentina during the previous three years
(including goods not related to the products to be imported) and the development of the prices
from one year to another. Most importantly, the Note requires the importer to provide information
on the quantities of products that the importer "proposes to export" from Argentina, in order to
"establish the trade balance". If the importer is not involved in the exportation of goods from
Argentina, then the Note obliges him to "indicate all the explanations that enable the Secretariat
for Domestic Trade to understand the reasons for which the company does not export". The Note
concludes by stating that "it is clarified that, until such time as the companies comply with the
requirements, the DJAI will not be authorised".
1.2. RTR
 REQUIREMENTS
9. The RTR requirements imposed by Argentina, inter alia, include to (i) export a certain value
of goods from Argentina related to the value of imported products, as a condition to import
products into Argentina ("one-to-one requirement"); (ii) limit the volume of imported products,
as a condition to continue importing some products into Argentina (" import reduction
requirement"); (iii) freeze or reduce the prices of products sold locally, as a condition to import
products into Argentina (" price control requirement "); (iv) increase the local content of
domestically produced goods, by replacing imported products with domestic products, either as a
condition to import products into Argentina or, more generally, as a condition to do business in
Argentina and/or obtain an advantage (" import substitution requirement ") and (v) make
investments in Argentina and/or refrain from repatriating profits abroad, as a condition to import
products into Argentina ("investment requirement").

10. The RTR requirements are not stipulated formal ly in any published law or regulation, and are
usually conveyed orally to economic operators in Argentina in their dealings with the relevant
Argentine authorities. However, the European Un ion provides ample evidence of their existence
recorded in public statements, where high-ranked government officials announce the
implementation of such requirements. Also, the Eu ropean Union also provides ample evidence of
unofficial sources (namely press clippings) attesting the same facts. In addition, the European
Union adduces a copy of the document of a nota ry public confirming the existence of eight
documents reflecting agreements between the Argentine Government and economic operators in
Argentina containing undertakings to comply wi th one-to-one as well as with investment
requirements.

11. In its first written submission Argentina objects validity and relevance of the evidence
submitted by the European Union in the form of information provided by certain sources of
information in Argentina, in particular Clarín and La Nación newspapers. The European Union
addresses this objection in its opening oral statement. First, the European Union disagree with
Argentina's suggestion that the European Union is supporting its claims on evidence consisting on
"press releases and newspapers articles … which cannot be considered as anything more than
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journalistic opinion tinged with ideology". The European Union submits that due to the lack of
transparency (i.e., the absence publication of the overreaching measure the European Union is
challenging) it is necessary to rely on a variet y of evidence, including newspapers, to show the
existence of such measure. Moreover, as it is mentioned in section 0 above, in addition to
information contained in newspapers from various sources, the European Union has provided, inter
alia, official press releases, official documents produced by Argentine authorities, a document
made by notary public and surveys by industry associations.

12. Second, with respect to Argentina's request to withdraw all information taken from Clarín
and La Nación newspapers from the record of th ese panel proceedings, the European Union notes
that such information is only a minimal part of all the evidence provided by the European Union in
this case. Further, the European Union observes that the Panel is free to admit and evaluate
evidence of every kind, and to ascribe to it the weight the Panel sees fit. This was also the finding
of Panel in US-Hot-Rolled Steel. Moreover, the European Union notes that it has only cited twice
the information provided by Clarín in its first written submission and most of the references made
to specific sets of facts contained in information provided by Clarín and La Nación have been
confirmed by other sources, including other mean s of communication (newspapers, radios, TVs,
magazines, blogs, etc) as well as official press releases by the Argentine authorities.

13. We agree with Argentina that, with respect to the information provided in newspapers, a
distinction should be made between the facts described therein and the journalistic colouring of
these facts. However, the information provided by those newspapers in this case confirms that an
event or fact took place in the past, thereby co nfirming the existence of the overarching measure
as well as the separate measures the European Union is challenging in this case. Moreover, such
an event or fact, or similar events or facts, are reported in very similar terms in other sources of
information, such as other newspapers or offi cial press releases. Thus, the European Union
considers that the Panel should ascribe a value to the information provided by those newspapers
(as well as others) when considering the totalit y of the evidence put forward by the European
Union about the existence and content of the measures it is challenging as RTR requirements. In
this respect, the European Union also notes that previous panels and the Appellate Body have
taken into account evidence provided by newspapers, without the need to demonstrate factual
assertions through contemporaneous sources of info rmation. Specially, panels have been inclined
to accept the information provided by newspapers in cases like the present one, where the
respondent did not challenge the truth of the facts reported. The European Union would also invite
the Panel to draw the necessary inferences, where appropriate, from Argentina's refusal to engage
in the rebuttal and substantive discussion of th e facts and arguments raised by the European
Union in its first written submission about the RTR requirements.

14. Finally, with respect to the Argentina's objection against the submitted evidence, the
European Union observes that in numerous press releases published by official authorities in
Argentina, mainly the Ministry of Industry and th e Ministry of Economy, references are made to
agreements being signed between the relevant Argentine authorities and economic operators,
containing the RTR requirements the European Union is challenging in this case. The European
Union has seen many of those agreements and their content. However, the European Union has
not been authorised by those economic oper ators to disclose them in these proceedings.
Therefore, the European Union invites the Panel to seek those agreements directly from Argentina,
if necessary by following the BCI proceedings already foreseen in the Panel's Working Procedures.
We believe that such a request would facilitate the Panel's tasks of making an objective
assessment of the matter.

15. The RTR requirements are comprehensively and systematically imposed across economic
operators and sectors. Naturally, economic operators in Argentina are more or less affected by the
RTR requirements depending on their potential contribution to eliminating trade balance deficits
and achieving the import substitution objectives pursued by the Argentine Government.

16. As the European Union clarify in the response to question 9 and 11 of the Panel, the way the
Argentine Government enforces compliance with the RTR requirements is not uniform and may
take a variety of forms. While the RTR requirements often operate in concert with certain
published trade measures—such as the DJAI system—the RTR requirements have also been
imposed by other coercive means: from exercising pressure, such as insinuating the
nationalization of private companies to freezing the operations of companies (by retaining the
identification number for tax purposes, i.e. CUIT). In addition to "sticks" to induce compliance with
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the RTR requirements, Argentina also employs "carrots" such as providing awards to comply with
the requirements (such as the increase in the va lue of imports that is permitted), and providing
incentives to companies complying with import substitution requirements. In any event, the
European Union observes that this list is not exhaustive.

17. In the response to question 11, the European Union further clarifies that it is incorrect to
assume that to each type of RTR requiremen t corresponds a specific type of enforcement
mechanism. For instance, it is not that the one-to-one requirement is always enforced through the
DJAI system. RTR requirements may be enforced by all mechanisms available to the Argentine
Government, from the DJAI system to other coer cive means mentioned before which affect the
regular business activities of economic operators in Argentina. Those other means of enforcement,
including sticks and carrots, may not impose a limitation on the ability to import products. For
instance, if a government exercises pressure to comply with the one-to-one requirement,
companies may be subject to dawn raids interfering with their operations while continue importing.
Similarly, companies may not benefit from any support scheme if they do not comply with the
import substitution policy by achieving certain local content thresholds; however, those companies
would continue importing products.

18. Last, the European Union would like to recall that the enforcement mechanisms must be
distinguished from the RTR requirements them selves. The overarching measure the European
Union is challenging consists in the imposition of one or more of the RTR requirements which
themselves restrict the importation of products or the use of imported products. In other words,
the RTR requirements contain limiting conditions which are contrary in themselves to Articles XI:1
and III:4 of the GATT. The enforcement mechanis m in case of non-compliance with the RTR
requirements, either in the form of a "stick" or a "carrot", is what makes the RTR requirements to
be "requirements". In some cases, the enforcement instrument chosen to induce compliance with
the RTR requirement may be incompatible with Article X1:1 of the GATT 1994 (i.e., in cases where
the DJAI system is used).
1.2.1. One-to-one requirement
19. This requirement suggests that, for every dolla r spent on imports, an importer must engage
in export activities for at least one dollar. However, this "parity" is not always what is required as
the Argentine Government often compels companies to increase their level of exports compared to
the previous year, while maintaining imports at a lower level (and thus achieve a trade surplus).
Also, the Argentine Government requires companies to even out their trade balance on an annual
basis. Even if an entity achieved a positive trad e balance in one year, next year such entity is
required to even out its trade balance starting from zero in the export side. In turn, if a company
did not even out its trade balance in one year, next year imports are not allowed until such a
company exports the value required to even out its trade balance.

20. Companies in Argentina have addressed the one-to-one requirement in various ways.
Sometimes, companies devise export plans based on their own production capacities, which often
leads to altering their production plans to increase their production capacity in Argentina with a
view to exporting the required values. In some other cases, companies partner with domestic
producers to export domestic products (mostly unrelated to their own imports or production in
Argentina) under the name of the importing firm. In most cases, however, companies need to hire
exporters in order to assume entitlement ov er such exports and thus, meet the export
commitments. The last is the most recurrent case especially by small and medium importers
which, due to their limited capacities, are unable to engage in export activities by themselves. This
has created an emerging market of exporters offeri ng their exports to importers in exchange of a
percentage of the value of exports needed. Also, other companies compensate the lack of agreed
exports by making irrevocable capital contributions.

21. The European Union in its first written submission illustrates how the Argentine Government
has imposed the one-to-one requirement to the present day, and the way in which economic
operators have committed to it by referring to the one-to-one requirement applied in the sectors
of automobiles, trucks, motorcycles, cultural pr oducts, tyres, agricultural products, electronic
products/appliances, clothing, pharmaceuticals, pork meat and toys.
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1.2.2. Import reduction requirement
22. The Argentine Government also requires econom ic operators to limit the volume of imported
products, as a condition to continue importing some products into Argentina. This requirement
may be asked separately or may also be a part of a broader set of requirements (often the one-to-
one requirement) that economic operators must undertake. In all cases, compliance with the
import reduction requirement serves as a "permission" to continue importing products in the
future. Like the rest of RTR requirements, the import reduction commitments are unrelated to the
essence, composition or performance of the product being imported, but respond to Argentina's
objectives to control trade deficits and substitute imports.

23. The European Union illustrates the implementa tion of the import reduction requirement by
commitment by supermarket chains to limit the volume of imported products, commitment by
automobile importers to reduce imports, commitment by motorcycle importers to reduce imports
and commitment by Argentine pork associations to stop and limit imports of pork meat products.
1.2.3. Price control requirement
24. Either separately or together with other RTR requirements, the Argentine Government
requires economic operators to freeze or reduce their prices in order to continue importing
products. Compliance with the price control requirement serves as a "permission" to continue
importing products in the future but also, compliance with the price control requirement is used as
a "reward" to companies, in the sense that companies abiding by it are permitted to increase the
levels of imported products they are allowed to achieve. The European Union illustrates the price
control requirement by commitments by supermarke t chains to freeze or reduce their prices and
by certain premium clothing companies to halt prices.
1.2.4. Import substitution requirement
25. Over the last years, the Argentine Government also requires economic operators in
Argentina to incorporate local content to their products by substituting imported products by
products that are or can be produced in Argentina. Sometimes the import substitution requirement
is imposed as a condition to continue importing some products. The import substitution
requirement is often imposed together with other RTR requirements, specially the one-to-one
requirement. In those cases, in order to reach th e necessary trade surplus, an import substitution
requirement is also imposed to lower the level of imported products. In other cases, the import
substitution requirement is not necessarily a cond ition to the importation of products but, more
generally, is seen as a requirement to do business in Argentina or to benefit from tax incentives or
other types of support.

26. The Argentine Government has set up sectorial working groups bringing together producers
of manufactured goods and local (potential) suppliers of inputs with a view to enjoining the former
to substitute imports for domestically produced goods in the production of the downstream
product. In many cases, the Argentine Government has required relevant stakeholders to identify
inputs or products that can be replaced by domestic sources and to commit to an import
substitution plan. The sectors for which a working group has been set up are: (i) leather and
footwear; (ii) wood; (iii) textile and apparel; (iv) automotive-autoparts; (v) construction materials;
(vi) software; (vii) agricultural machinery; (viii) medicines for human consumption; (ix) capital
goods; (x) poultry, pork and dairy; and (xi) chemical and petrochemical.

27. The European Union describes how the Argentine Government has implemented the import
substitution requirement in several key sectors, such as the mining, automotive, agricultural
machinery, motorcycle, electronics, and bicycl es sectors. In these sectors, the Argentine
Government has explicitly made it clear that the import substitution requirement is not an option
but an obligation with which producers of downstream products and local suppliers of inputs must
engage. Yet, the import substitution requirement is not confined only to these sectors. Argentine is
progressively broadening the scope of the industri es over which import substitution requirements
are imposed.
1.2.5. Investment requirement
28. The Argentine Government also requires companies to invest in Argentina in existing or new
production facilities, as a condition to import products. Specifically, the Argentine Government
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requires companies to make or increase investments in Argentina by bringing new capital and/or
by refraining from repatriating profits abroad. By imposing such a requirement, the Argentine
Government seeks to even out trade deficits and achieve import substitution (i.e., the investment
would increase local production which, in turn, is sold locally replacing imports or is exported,
thereby evening out trade balances).

29. This requirement may be imposed separately or together with other RTR requirements. For
example, in some cases, the Argentine Governme nt imposes the one-to-one requirement and the
investment requirement in order to oblige the company to obtain a positive trade balance surplus.
In other cases, the Argentine Government does not require a specific export target or trade
balance surplus but merely "efforts" to even out trade balance deficits to acceptable levels by
imposing the investment requirement. In many cases, however, investments are also undertaken
together with the obligation to increase the local content in the production of goods in Argentina.

30. The European Union exemplifies several cases where the Argentine Government has
required, and the companies have undertaken investment commitments as a condition to import
products.
2. LEGAL
 ARGUMENT CONCERNING DJAI SYSTEM
2.1. T HE DJAI SYSTEM IS INCONSISTENT WITH THE GATT
2.1.1. The DJAI system is inconsistent with Article XI:1 of the GATT
31. The European Union argues that the DJAI system is a "governmental measure" and a
"limiting condition on importation" and therefore inconsistent with Article XI of the GATT. The
European Union discusses the design and structure of the DJAI system: (a) all importers must
submit the "sworn affidavit" prior to the importation of any and all goods into Argentina; (b) the
importation can take place only if it is authorised by the Argentinean authorities through the DJAI
system; (c) there are a number of Argentinean governmental authorities, which have the right to
block the importation through the DJAI system; (d) for as long as the importation is blocked on
the DJAI system, the importation cannot take place and the Argentinean Customs Authorities
refuse to allow the release of the goods into the Argentinean market and the Central Bank of
Argentina refuses to authorise the opening of letters of credit, the issuance of bank guarantees, or
the payment in foreign currency for the imported goods; (e) there is no limit on the time period
during which the Argentinean authorities may continue to block the importation through the DJAI
system and (f) there are no limits on the Argentinean authorities' discretion to block an
importation, or continue to block the importation indefinitely.
2.1.2. Argentina has acted inconsis tently with its obligations under
Article X:1 of the GATT
32. Argentina has acted inconsistently with its obligations under Article X:1 of the GATT because
Argentina has failed to publish promptly and in a manner such as to enable governments and
traders to become acquainted with them, all laws, regulations and administrative rulings of general
application (legal instruments) relating to the operation of the DJAI system. First, Argentina has
failed to publish a complete list of all governmental entities that have the right to inspect and block
imports through the DJAI system. For instance, ther e are press releases which indicate that INTI
may be reviewing and blocking imports through the DJAI system. However, Argentina has not
published any legal instrument providing INTI with such right. Second, Argentina has failed to
publish the complete list of the goods that each governmental entity can review and block through
the DJAI system. The Manual for DJAI Operations only lists the goods that the Secretariat for
Domestic Trade, AFIP and ANMAT may review and block, however it does not list the goods the
importation of which may be blocked by any othe r governmental entity. The fact that Argentina
has published the specific list of goods for only some entities, confirms that it has intentionally
omitted to publish the list of goods for the other entities. Third, Argentina has failed to publish the
conditions on the basis of which the Secretariat for Domestic Trade, the ANMAT, the SEDRONAR,
the DGRSS, the SENASA, the INV and the INTI can block imports through the DJAI system.
Argentina has published in the Manual for DJAI Operations only the grounds on the basis of which
AFIP may block specific imports. The fact that Argentina has published these conditions for only
one entity, confirms that it has intentionally omitted to publish the corresponding conditions for
the other governmental entities. Fourth, Argentina has failed to publish the grounds on the basis
of which the deadline for "Withdrawn-Expired" status (" Anulada") of a DJAI application may be
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extended. Lastly, Argentina requires the submi ssion of the Note discussed above. However,
Argentina has not published any legal instrument that provides for the existence of that Note.
2.1.3. Argentina's administration of th e DJAI system is inconsistent with
Article X:3(a) of the GATT
33. The European Union submits that Argentina's administration of the DJAI system does not
meet the requirements of Article X:3(a) of the GATT. First, given the absence of any published
grounds or conditions on the basis of which the Secretariat for Domestic Trade, in particular, would
block imports, there is no "consistency" or "predictability" in Argentina's administration of the DJAI
system. The absence of such published grounds or conditions means that the Secretariat for
Domestic Trade could block the imports of one im porter, while authorise the imports of another
importer (despite the fact that the two importers would be of the same type and size) or that an
importer could see its imports being authorised at one point in time, but blocked at another point
in time. The European Union also showed that the Secretariat for Domestic Trade, in particular, is
requiring importers to undertake various trade-restrictive commitments, in order to allow them to
import into Argentina. This element alone suffices to render Argentina's administration of the DJAI
system non-uniform. Second, in the absence of any published grounds or conditions on the basis
of which the Secretariat for Domestic Trade, in particular, would block imports, the DJAI system
does not contain any "adequate safeguards" that could ensure the "impartial" and fair treatment of
all prospective importers. Third, the publicly available information establishes that the Secretariat
for Domestic Trade, in particular, routinely requires applicants to undertake trade-restrictive
obligations and conditions, in order to allow their imports through the DJAI system. For as long as
the applicants have not agreed to undertake these obligations and conditions, the Secretariat for
Domestic Trade continues to block the applicants' imports, sometimes even for months, as
established by the Argentinean Court judgments. An administration with such characteristics is
definitely not "reasonable", "proportional" or "sensible" and it is definitely "asking for too much".
2.2. T
HE DJAI SYSTEM IS A NON-AUTOMATIC IMPORT LICENSING SYSTEM, WHICH IS INCONSISTENT WITH THE
PROVISIONS OF THE IMPORT LICENSING AGREEMENT AND THE GATT
34. The European Union considers the DJAI system as an "import licensing" regime, which falls
within the scope of both Article XI of the GATT and of the Import Licensing Agreement.
2.2.1. The DJAI system is inconsistent with Article XI:1 of the GATT
35. WTO Panels have already found that an import licensing system falls within the prohibition
of the GATT Article XI:1 when it is "discretionary or non-automatic". The DJAI system is such a
non-automatic import license system. First, because the DJAI system does not grant the approval
of the "application" in all cases. Second, there are numerous examples of applications for
importation which have been blocked through the DJAI system, as evidenced both by the
Argentinean court judgments and the other publicly available information. In addition, the DJAI
system is designed and structured to grant authorisations for imports with important time delays.
As mentioned, once a governmental entity has blocked the importation through the DJAI system,
there is no deadline within which the importation will be authorised. The Argentinean Court
judgments also establish that the actual operation of the DJAI system involves very important time
delays in the granting of DJAI authorisations, if such authorisations are ever granted.
Consequently, the important time delays in the granting of DJAI authorisations are an additional
element showing that the DJAI system is inconsistent with Article XI:1 of the GATT.
2.2.2. Argentina has acted inconsis tently with its obligations under
Article 1.3 of the Import Licensing Agreement
36. The Appellate Body in EC-Bananas III has found that "the provisions of Article X:3(a) of the
GATT 1994 and Article 1.3 of the Licensing Agreement have identical coverage". Therefore, to the
extent that the Panel finds that the DJAI system constitutes an import licensing system which falls
within the scope of the Import Licensing Agreement, the European Union requests the Panel to find
that Argentina has acted inconsistently with Article 1.3 of that agreement, for the reasons
discussed in this Submission, under the Section on Article X:3(a) of the GATT.
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2.2.3. Argentina has acted inconsis tently with its obligations under
Article 1.4(a) and Article 3.3 of the Import Licensing Agreement
37. The European Union has not received any information indicating that Argentina has provided
the requisite publications to the WTO Committee on Import Licensing or the WTO Secretariat.
Moreover, Argentina has failed to publish in the manner required by Article 1.4(a) of the Import
Licensing Agreement, (a) the complete list of all Argentinean governmental entities that have the
right to review and block the DJAI applications; and (b) the complete list of goods, the importation
of which can be reviewed and blocked by each of the governmental entities "affiliated" with the
DJAI system. Therefore, Argentina has acted inconsistently with its obligations under Article 1.4(a)
of the Import Licensing Agreement . In addition, Argentina has not published any laws or
regulations imposing quantitative restrictions on imports, nor has its published any laws or
regulations stating that the DJAI system is link ed to the implementation of such quantitative
restrictions on imports. Therefore, there is no evidence that the DJAI system has the purpose of
implementing quantitative restrictions. In these circumstances, Article 3.3 of the Import Licensing
Agreement obliges Argentina to publish "sufficient information" on the "basis for granting and/or
allocating licenses". Argentina has failed to do so.
2.2.4. The DJAI system is inconsiste nt with Article 1.6 of the Import
Licensing Agreement
38. The DJAI "application procedure" (a) involves multiple levels of applications at different
points in time; (b) requires additional and separate contacts and applications with numerous
different governmental entities; (c) requires the submission of documents and information that are
not related to the specific goods to be imported ; and (d) requires the submission of documents
and information on the applicant's export activities while the applicant is actually requesting the
authorisation to import goods, and therefore is not "as simple as possible" for purposes of
Article 1.6 of the Import Licensing Agreement. Moreover, once an application is blocked, applicants
may be obliged to contact separately up to seven or eight different "administrative bodies" and
submit additional documents and "applications" sepa rately to each of them. Therefore, the total
number of "administrative bodies" that applicants may be forced to "approach" exceeds by far the
number of three provided in Article 1.6 of the Import Licensing Agreement.
2.2.5. The DJAI system is inconsiste nt with Article 3.2 of the Import
Licensing Agreement
39. The European Union considers that the DJAI system is not used in order to "implement"
some other "measure" within the meaning of Article 3.2 of the Import Licencing Agreement : the
DJAI system itself is the measure that restricts imports, in breach of Argentina's obligations under
Article XI of the GATT.
2.2.6. The DJAI system is inconsistent with Article 3.5(f) of the Import
Licensing Agreement
40. Each application by a prospective import er, submitted through the DJAI system, is
considered by the Argentinean authorities "as and when received". This means that the period for
processing the applicant's request should not exceed 30 days. However, the DJAI system is
designed to grant authorisation during a period which is much longer than 30 days. In fact, the
application remains in the blocked "Observed" status for as long as the relevant governmental
entity has not removed its objection. The only time "limit" provided for in the Argentinean
legislation is that 180 days after the date of the application's registration into the electronic
system, the application goes automatically into the "Withdrawn-Expired" status. This deadline can
be further extended, but the Argentinean legislatio n does not describe the conditions that must be
met in order for such an extension to be granted. In other words, an application may remain in the
blocked "Observed" status indefinitely.

3. LEGAL
 ARGUMENT ON RESTRICTIVE TRADE-RELATED REQUIREMENTS

41. In this dispute, the European Union challenges the imposition of one or more of the RTR
requirements upon economic operators in Argentina as a part an overarching measure inconsistent
with Articles XI:I and/or III:4 of the GATT. Si nce these requirement have not been published
promptly in a manner to enable governments and traders to become acquainted with them, the
European Union submits that Argentina also violated its obligations under Article X:1 of the
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GATT 1994. In the alternative, should the Panel find that the RTR requirements, each on its own or
any combination thereof, are not inconsistent with these Articles as a part of an overreaching
measure, the European Union challenges as separate measures certain specific instances where
Argentina has applied one or more of these requ irements with respect to individual economic
operators.
3.1. T
HE RTR REQUIREMENTS ARE INCONSISTENT WITH ARTICLES XI:1 AND/OR III:4 GATT 1994
42. The European Union will demonstrate that each of the requirements which conform the
measure at issue is inconsistent with Articles XI:1 and/or Article III:4 of the GATT 1994 since they
prohibit or restrict the importation and/or the use of imported products in Argentina.
Consequently, the RTR requirements, defined as an overarching measure pursuant to which the
Argentine Government requires economic operators to commit to take one or more of the actions
described above, is also contrary to Articles XI:1 and/or III:4 of the GATT 1994.
3.1.1. The one-to-one requirement is inconsistent with Article XI:1 of
the GATT 1994
43. The European Union submits that a similar "trade balancing requirement" was found
inconsistent with Article XI:1 of the GATT 1994 in India – Autos. Also, a similar type of restrictive
measure, in the particular context of measures affecting investment, was included in the
Illustrative List contained in the Annex to the TRIMs Agreement as "inconsistent" with Article XI:1
of the GATT 1994.
3.1.2. The import reduction requirement is inconsistent with Article XI:1
of the GATT 1994
44. The European Union submits that the import reduction requirement imposes a limiting
condition on the importation of products and, thus, is inconsistent with Article XI:1 of the
GATT 1994. Indeed, the importation of certain products is totally banned (like the case of the pork
industry) or restricted (like the case of automobiles and motorcycles) as a condition to continue
importing the same or other products into Argentina.
3.1.3. The price control requirement is inconsistent with Article XI:1 of
the GATT 1994
45. The European Union submits that the price control requirement is inconsistent with
Article XI:1 of the GATT 1994. If the entity conc erned does not commit to freeze or reduce the
prices of the products it sells in Argentina, the entity is prevented from importing products. If the
entity agrees to freeze or reduce those prices, the entity is allowed to continue importing products
into Argentina and is also rewarded by benefiting from less import restrictions. In this sense, the
price control requirement makes importation contingent upon compliance with certain selling
prices.
3.1.4. The import substitution requirement is inconsistent with
Articles XI:1 and III:4 of the GATT 1994
46. The European Union submits that the import substitution requirement, insofar as it imposes
a limiting condition on the importation of products is contrary to Article XI:1 of the GATT 1994 and
to Article III:4 of the GATT 1994 insofar as it imposes a limitation on the use of imported products,
is contrary to Article III:4 of the GATT 1994.

47. To elaborate on the latter, the European Union submitted that, first, the import substitution
requirement is based exclusively on the products' origin. Thus, the goods manufactured in
Argentina and imported from elsewhere are like products within the meaning of Article III:4 of the
GATT 1994. Second, the import substitution requirements are "requirements" in the sense of
Article III:4 of the GATT 1994. In particular, entiti es in Argentina must accept them in order to
continue their activities in Argentina and the Argentine Government exercises pressure on these
entities to reach local content targets and replace their imported products by other products
sourced locally. In some cases, the Argentine Government also imposes the import substitution
requirement in order to obtain an advantage (such as a subsidy). Third, in the light of the findings
of Appellate Body and Panels in Turkey – Rice , Canada – Autos , China – Auto Part , the import
substitution requirements "affect" the "internal sale, purchase, or use" of imported products within
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the meaning of Article III:4. Fourth, the import substitution requirement accord less favourable
treatment to imported products than the treatment granted to like domestic products. In fact, by
setting local content targets as a condition to operate in Argentina or to have access to an
advantage, the Argentine Government alters the co nditions of competition in Argentina negatively
affecting the possibilities for imported products to be used in Argentina (e.g., in the local
production). Finally, the European Union observes that paragraph 1(a) of the Illustrative List of the
TRIMs Agreement provides that measures like import substitution requirements are inconsistent
with Article III:4 of the GATT 1994 and that simila r import substitution requirements have been
found inconsistent with Article III:4 of the GATT 1994 in other cases, such as India – Autos, Korea
– Various Measures on Beef, US – Malt Beverages or Canada - FIRA.
3.1.5. The investment requirement is inconsistent with Article XI:1 of
the GATT 1994
48. The Argentine Government requires companies to make investments in Argentina as a
condition to import products. If the companies do not comply with it, the Argentine Government
employs legal instruments such as the DJAI or other coercive means to impede the importation of
products. In most cases, however, companies accept such a commitment in order to avoid import
restrictions. In either way, the investment requirement imposes a limiting condition on the
importation of products and, thus, is inconsistent with Article XI:1 of the GATT 1994.
3.2. A
RGENTINA VIOLATED ITS OBLIGATIONS UNDER ARTICLE X:1 OF THE GATT 1994 WHEN FAILING TO
PUBLISH THE RTR REQUIREMENTS PROMPTLY
49. The European Union maintains that the RTR requirements are inconsistent with Article X:1.
First, the RTR requirements apply to a range of situations, to a variety of economic operators and
sectors. Thus, the RTR requirements are not isolated cases, but an overarching measure applied to
a wide range of situations and, thus, amounts to a measure of general application in the sense of
Article X:I of the GATT 1994. Second, the RTR requirements are made effective by Argentina.
Official government statements and press releases, unofficial press clippings, industry surveys and
the WTO Secretariat itself all confirm the existence, nature and operation of the RTR requirements.
Third, the European Union has also shown that the RTR requirements restrict the importation of
products as well as the use of imported products, when imposing at least one of those
requirements as a condition to import products and/or as a condition to use imported products in
Argentina. Last, Argentina has failed to publish the RTR requirements promptly as required by
Article X:1 of the GATT 1994. These requirements are not stipulated in any published law or
regulation and, in practice, they are usually communicated orally to individual economic operators,
either by telephone or in face-to-face meetings.
3.3. S
PECIFIC INSTANCES OF APPLICATION OF THE RTR REQUIREMENTS
50. In the alternative, should the Panel find th at the RTR requirements, each on its own or any
combination thereof, are not inconsistent with Articles XI:1 and/or III:4 of the GATT 1994 as part
of an overarching measure, the European Union challenges as separate measures specific
instances where Argentina has applied one or more of these requirements with respect to
individual economic operators as follows:

Case Entity(/ies) affected Approx. Date Requirement Claim
1 Renault Trucks 7/02/2012
One-to-one
Import substitution
Investment
Articles XI:1 and III:4 of
the GATT 1994
2 Volkswagen 18/03/2011 One-to-one
Import substitution
Articles XI:1 and III:4 of
the GATT 1994
3 Porsche 30/03/2011 One-to-one Article XI:1 of the
GATT 1994
4 Mercedes Benz 6/04/2011
One-to-one
Import substitution
Investment
Articles XI:1 and III:4 of
the GATT 1994
5 Peugeot-Citroën 20/04/2011
17/11/2011 One-to-one Article XI:1 of the
GATT 1994
6 Alfa Romeo 20/04/2011 One-to-one Article XI:1 of the
GATT 1994
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Case Entity(/ies) affected Approx. Date Requirement Claim
7 General Motors 2/05/2011
One-to-one
Import substitution
Investment
Articles XI:1 and III:4 of
the GATT 1994
8 Fiat 5/05/2011
One-to-one
Import substitution
Investment
Articles XI:1 and III:4 of
the GATT 1994
9 Ford 23/05/2011 One-to-one
Import substitution
Articles XI:1 and III:4 of
the GATT 1994
10 Renault 5/08/2011 One-to-one
Import substitution
Articles XI:1 and III:4 of
the GATT 1994
11 BMW 13/10/2011 One-to-one Article XI:1 of the
GATT 1994
12
Cámara Argentina de
Publicaciones and its
affiliated entities
31/10/2011 One-to-one Article XI:1 of the
GATT 1994
13 Cámara Argentina del Libro
and its affiliated entities 11/11/2011 One-to-one Article XI:1 of the
GATT 1994
14 Scania 21/11/2011 One-to-one
Investment
Article XI:1 of the
GATT 1994
15 Pirelli 9/03/2012 One-to-one Article XI:1 of the
GATT 1994
16 Pork meat associations 7/05/2012 One-to-one
Import reduction
Article XI:1 of the
GATT 1994
17 Sociedad Bíblica Argentina
(SBA) 22/11/2011 One-to-one Article XI:1 of the
GATT 1994
18 Certain producers of
medicines 01-05/2011 One-to-one
Investment
Article XI:1 of the
GATT 1994
19 Airoldi 7/03/2012 One-to-one Article XI:1 of the
GATT 1994
20 Zanella 03, 10/2011 One-to-one
Import substitution
Articles XI:1 and III:4 of
the GATT 1994
21 Indesit 07/2012 One-to-one Article XI:1 of the
GATT 1994
22 Michelin 11/04/2013
One-to-one
Import substitution
Investment
Articles XI:1 and III:4 of
the GATT 1994
23 Ermenegildo Zegna 2/08/2012 One-to-one Article XI:1 of the
GATT 1994

4. CONCLUSIONS AND REQUEST FOR FINDINGS

51. For the reasons set out in its first written su bmission, the European Union requests the Panel
to find that:

(1) with respect to the DJAI System, Argentina has acted inconsistently with its
obligations under Articles X:1; X:3(a); and XI:1 of the GATT, as well as with
Articles 1.3; 1.4(a); 1.6; 3.2; 3.3; and 3.5(f) of the Import Licensing Agreement;

(2) with respect to the RTR requirements, that:

 the RTR requirements are inconsistent with Articles XI:1 and/or
Article III:4 of the GATT 1994;
 Argentina violated its obligations under Article X:1 of the GATT 1994 by
failing to publish the RTR requirements promptly in a manner to enable
governments and traders to become acquainted with them;
 in the alternative, that Argentina acted contrary to Articles XI:1 and/or
Article III:4 of the GATT 1994 in each of the measures separately
identified in this submission.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX B-2
SECOND PART OF THE EXECUTIVE SUMMARY
OF THE ARGUMENTS OF THE EUROPEAN UNION
1. INTRODUCTION

1. This executive summary summarizes the arguments of the European Union in its second
written submission and the Oral Statement in the Second Hearing. It reiterates the position of the
European Union and rebuts Argentina's arguments related first to the DJAI Requirement and then
to the RTR requirements. On the DJAI, the European Union first identifies the factual points that
Argentina does not contest and then explain the reasons for which Argentina's legal assertions
should be rejected. On the RTR requirements, the European Union discusses the reasons for which
Argentina's assertions are baseless and provides comments on Argentina's responses to the
Panel's written questions. The European Union also provides some comments on the Panel's
communication of 6 November 2013.

2. DJAI
 REQUIREMENT

2.1. P OINTS THAT ARGENTINA HAS ACKNOWLEDGED

2. Through its first written submission, its oral statements during the first Hearing and its
responses to the written questions of the Panel, Argentina has acknowledged the accuracy of a
number of facts presented by the European Union in its own submissions. Argentina has generally
confirmed the European Union's description of the DJAI system's design, structure and operation.
Argentina has also confirmed that no importation can take place for as long as the DJAI system is
at "observed" status and that a number of Argentinean governmental entities have the power to
block imports through the DJAI system. Most importantly, Argentina has confirmed that the
Secretariat for Domestic Trade has the power to block the imports of all goods through the DJAI
system. Likewise, Argentina has implicitly acknowledged the Secretariat for Domestic Trade's
broad discretion in blocking imports and the lack of publication of a specific list of reasons for
which this Secretariat may block imports. Also, Argentina has failed to address a number of issues,
such as the role of the INTI; and the lack of publication of the legal instruments through which
SEDRONAR, SENASA and INV have been given the power to review and block imports through the
DJAI System. In addition, Argentina has made co nfusing statements as to whether SENASA and
INV actually have the power to review and block imports through the DJAI System. Therefore, as a
result of Argentina's failure to publish promptly all relevant legal instruments in accordance with
the provisions of Article X:1 of the GATT, there is uncertainty as to which governmental entities
actually review and block imports through the DJAI system. In conclusion, the European Union
considers that Argentina's submissions and statements in these proceedings, in combination with
the evidence placed at the disposal of the Panel, have served to establish the facts that justify the
European Union's claims under Article X:1, Article X:3(a) and Article XI:1 of the GATT, irrespective
of whether the DJAI system is considered an "import license", or not.

2.2. P
OINTS THAT ARGENTINA CONTESTS

3. The European Union noted that Argentina does not contest the main facts presented by the
European Union. Rather, Argentina has based its de fence on a number of legal interpretations and
assertions. These legal interpretations and assertions are wrong and should be rejected, for the
reasons discussed by the European Union in the following paragraphs.

2.2.1. Issues relating to the GATT

2.2.1.1 Argentina's assertions in relation to Article XI:1 of the GATT

4. Argentina's defence is based on one main asse rtion: that a type of measure that Argentina
calls "customs formalities" falls outside the scope of Article XI of the GATT, because it allegedly
falls only within the scope of Article VIII of the GATT. Argentina further asserts that Article XI of
the GATT covers only "substantive" provisions and not "procedural" provisions. According to
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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Argentina, the latter fall only within the scope of Article VIII of the GATT. These assertions run
against both the text of the relevant provisions of the GATT and the consistent jurisprudence of
past Panels and the Appellate Body.

2.2.1.1.1 Argentina's assertions in relation to
Article VIII of the GATT are wrong

5. Argentina asserts that it cannot be the case that customs formalities that are permitted
under Article VIII are prohibited quantitative restrictions under Article XI. Argentina also asserts
that the potential trade-restrictive effects of customs formalities are governed by Article VIII and
because Article VIII contemplates by its terms that such effects may occur, it cannot be the case
that these same effects render a customs formality a prohibited quantitative restriction under
Article XI. Otherwise, Members would not be able to maintain customs formalities, because they
would be prohibited under Article XI. Argentina's assertions are wrong for a number of reasons.

6. First, Argentina fails to explain which provis ion of Article VIII of the GATT allegedly "permits"
those "customs formalities".

7. Second, the text of Article VIII does not even mention the term "customs formalities".
Article VIII:3 simply provides that there should not be "substantial penalties" for "minor breaches
of customs regulations or procedural requiremen ts". Moreover, as the European Union noted in
paragraph 13 of its Opening Statement in the Seco nd Hearing, the debate that took place during
the First Hearing showed that, as a matter of fact, the DJAI requirement does not constitute a
"customs formality". In consequence, Argentina subtly shifted terminology in its second written
submission and replaced the term "customs formalities" with the term "import formalities".

8. Third, no provision of Article VIII or Arti cle XI of GATT states that "import and export
formalities" are "permitted". Article VIII:1(c) simply imposes on WTO Members the obligation to
"minimize their incidence and complexity". Argentina's assertion, if accepted, would open an
enormous loophole in the GATT.

9. Fourth, the fact that "import and export formalities", as well as other "quantitative
restrictions" and "licensing" are mentioned in the text of Article VIII of the GATT does not mean
that these measures fall only within the scope of Article VIII and fall outside the scope of Article XI
of the GATT. The "restrictions on the importation of goods" are also mentioned in other provisions
of the GATT, such as Article XIII. For example, the fact that Article XIII provides a very elaborate
set of rules on how import restrictions should be administered does not imply that such import
restrictions are "permitted" by Article XIII and fall outside the scope of Article XI of the GATT. If
that erroneous interpretation was accepted, then Article XI would have no scope. The proper
interpretation of Article XI, Article XIII and Article VIII:1(c), which would give meaning to all three
Articles, is that import prohibitions and restrictions are generally prohibited by Article XI:1 of the
GATT. WTO Members may impose such import prohibitions or restrictions, only if they are justified
by one of the exceptions provided in the GATT. In the event that a WTO Member is authorised to
impose such import restrictions by virtue of some exception, then the WTO Member must further
ensure that these measures and their administration also comply with the provisions of Article XIII
and Article VIII:1(c) of the GATT. Therefore, Argentina's erroneous assertion must be rejected.
Article XI of the GATT covers "customs formalities" , just like it covers all other measures other
than duties, taxes and other charges.

2.2.1.1.2 Argentina's distinction between "substantive"
and "procedural" provisions for purposes of
Article XI of the GATT is wrong

10. Argentina asserts that "Article XI prohibits quantitative restrictions, but not the means by
which they are made effective". Argentina asserts that Article XI relates to substantive rules of
importation that limit or restrict trade, whereas Article VIII and the ILP Agreement relate to import
procedures, including the trade effects of those procedures. Argentina's assertions are wrong. This
is made clear by the following considerations.

11. First, there is nothing in the text of Articl e XI:1 of the GATT that could support Argentina's
erroneous assertion. Quite to the contrary, the text of Article XI of the GATT expressly provides
that it covers all measures that may restrict imports, with the exception of duties, taxes and other
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charges. Likewise, Article XI:1 uses language wh ich is all-encompassing. The combination of the
fact that the text of Article XI:1 uses such general and all-encompassing language with the fact
that Article XI contains its own exceptions, confirms that all measures may fall within the scope of
Article XI, irrespective of whether they could be characterised as "substantive" or "procedural".

12. Second, Argentina is wrong when it dr aws a distinction between, on the one hand,
"quantitative restrictions" and, on the other hand , the "means by which they are made effective".
The text of Article XI:1 reads: "…made effective through quotas, import or export licenses or other
measures". If Argentina's erroneous assertion was accepted, then "quotas" should be considered
as a "means" by which some other, undefined "qua ntitative restriction" would allegedly be "made
effective". The consequence would be that quotas wo uld fall outside the scope of Article XI of the
GATT and would fall only within the scope of Arti cle VIII of the GATT. However, this outcome is
denied by the consistent WTO jurisprudence including the Panel Reports on which Argentina relies.

13. Third, Argentina's interpretation of the findings of the Panel in China-Raw Materials is wrong.
Argentina asserts that the Panel in that case allegedly "recognizes that the trade-restrictive effects
of substantive rules…cannot be attributed to the procedures that are used to implement those
rules". This assertion is wrong for a number of reasons. Firstly, the Panel in China-Raw Materials
did not find that the challenged export licences constituted a "procedure". The Panel does not
even use the word "procedure" in the relevant Sections of its Report. Quite to the contrary, the
Panel considered the export licenses simply as a ty pe of measure that may fall within the scope of
Article XI:1 of the GATT, where, by their nature, th ey have a limiting or restrictive effect. This
finding is fully consistent with the legal interpretation of Article XI:1 of the GATT proposed by the
European Union, which focuses the analysis on whether the challenged measure (a) is a
governmental measure; and (b) prohibits or restricts the importation of goods. Consequently, the
basis, on which Argentina's assertion lies, is false. Secondly, the Panel in China-Raw Materials
found that licenses would constitute a "quantitative restriction" that would breach Article XI:1 of
the GATT, where the licensing authorities retained some discretion on whether to grant the
licenses or not. In that particular case, the facts showed that the Chinese authorities retained the
discretion to refuse the grant of the export licen ses that were imposed on goods which were not
subject to export quotas. The Panel also found that this discretion stemmed from the power of the
Chinese authorities to request undefined documents from the applicants. The Panel went on to
confirm the consistent jurisprudence on Article XI:1 of the GATT on "discretionary", or "non-
automatic" licenses, and found that these export licenses breached Article XI:1 of the GATT. In the
present case, the facts are very similar to the facts of these export licenses in China-Raw
Materials. Argentina imposes the DJAI system on all goods to be imported into Argentina.
Argentina has not asserted that it imposes any quota on these goods in addition to the DJAI. And,
Argentina's legislation allows to the Secretariat for Domestic Trade the discretion to block imports
on the basis of undefined criteria. As the Panel in China-Raw Materials found, the authority to deny
the license is ever present because the conditions for granting it are subject to the demands of the
particular governmental entity. Therefore, this uncertainty amounts to a restriction that is
inconsistent with Article XI:1 of the GATT.

14. In conclusion, Argentina's assertions are wrong and should be rejected. The European Union
has already presented in its First Written Submission the proper interpretation of Article XI:1 of
the GATT, as consistently followed by both the Appellate Body and the Panels in the past. The
European Union respectfully requests the Panel to apply this correct legal interpretation on the
facts of the present case and to find that the DJAI system breaches Article XI:1 of the GATT.

2.2.1.1.3 The notions of "prohibition" and "restriction"
in Article XI of the GATT

15. Argentina asserts that "a proper interpretation of Article XI:1 requires…a showing that the
measure at issue limits imports or exports in a quantifiable way and that this quantitative
limitation on imports or export is a result of the measure". Argentina also asserts that the co-
complainants "have presented no evidence at all that the DJAI procedure has had a quantifiable
limiting effect on imports into Argentina, let alone a quantifiable limiting effect that can be
separated and distinguished from the alleged RTRRs that the DJAI procedure is allegedly used to
implement". Argentina's assertions are wrong.

16. In its first written submission, the European Union has already presented a concise
description of the WTO jurisprudence on the notion of "quantitative restriction" for purposes of
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Article XI of the GATT. Argentina seems to disagree and it seems to assert that the Appellate Body
Report in China-Raw Materials has introduced a notion of "restriction", which is different from the
interpretation given to that term by the Panel in the same case (consistently with the
interpretation of other panels in previous cases). However, on the facts of that case, the Appellate
Body actually approved the Panel's interpretation of the notions of "prohibition" and "restriction" in
Article XI:1 of the GATT. This is because, th e Appellate Body found that a measure could be
analysed under Article XI:2(a) of the GATT only if it fell within the scope of Article XI:1 of the
GATT. If the Appellate Body disagreed with the Pane l's interpretation of Article XI:1 of the GATT,
then it would have found that there is no reason to analyse the measure under Article XI:2(a): the
measure would fall outside the scope of both Article XI:1 and Article XI:2(a). Therefore, the
Appellate Body's Report confirms the Panel's inte rpretation of the notion of "restriction" in
Article XI:1 of the GATT and the Panel interpretation is fully consistent both with the interpretation
followed by the other panels in previous cases and with the interpretation suggested by the
European Union in the present case. The European Union also noted in the paragraphs 26 to 30 of
the Opening Statement in the Second Hearing that Argentina interprets the Appellate Body
statements in order to devise a legal test which would include words and notions that the Appellate
Body has never used. For instance, the Appellate body has not stated that to fall within the scope
of Article XI of the GATT, a measure needs to be "expressed in the terms of quantity".

2.2.1.1.4 Is the DJAI a "customs formality"?

17. Article XI of the GATT covers all measures (w ith the exception of duties, taxes and charges).
This includes both "import formalities and requirements" and what Argentina calls "customs
formalities". Consequently, the Panel does not need to determine whether the DJAI requirement
constitutes a "customs formality", or not. Even if the DJAI system was a "customs formality", it
would still fall within the scope of Article XI of the GATT and would be contrary to Article XI:1 of
the GATT as an "other measure". In any event, the European Union has summarised in its first
written submission the facts that establish that the DJAI requirement is not a "customs formality".

2.2.1.1.5 Is the WCO SAFE Framework relevant for the
Panel's analysis in the present dispute?

18. The European Union considers that Argentina's alleged compliance with the SAFE Framework
is irrelevant for the Panel's analysis of the DJAI system under the GATT. An important legal reason
for this is that Argentina has not raised any defence under Article XX(d) of the GATT. As a result,
any potential similarity between DJAI and any WC O standards would be irrelevant for the present
case: such similarity (even if it existed) would fail to bring the DJAI requirement outside the scope
of XI:1 of the GATT. In its Opening Statement in the Second Hearing, the European Union stated
that Argentina has, in essence, acknowledged that WCO standards are irrelevant for the present
case. The European Union also pointed out that the Letter of the WCO Secretary General basically
confirmed that the DJAI does not comply with the WCO standards.

2.2.1.2 Argentina's assertions in relation to Article X:1 of the GATT

19. Argentina is simply factually wrong. It asserts that the European Union's challenge is
directed against the "observations that each agency may make" in relation to each specific import
application, depending on the "good as it relates to the agency's regulatory authority". However,
this is not what the European Union is challenging under Article X:1 of the GATT. The European
Union's first written submission lists the types of legal instruments that Argentina has failed to
publish in accordance with Article X:1 of the GA TT. These do not include the "observations that
each agency may make" in a "specific case". Quite to the contrary, the European Union challenges
Argentina's failure to publish, in accordance with Article X:1 of the GATT, the complete list of
governmental bodies that may block imports; the legal instruments through which certain
governmental bodies have been given the power to block imports; the list of goods the importation
of which each governmental body can block; the conditions on the basis of which the 180 days
deadline may be extended, etc.

20. Argentina also asserts that "there is no 'universal' set of criteria that applies to all goods".
Argentina's assertion is factually inaccurate. Argentina itself has published in the Manual for DJAI
Operations the "set of criteria" on the basis of which AFIP may block imports. The fact that
Argentina has been able to publish a "universal set of criteria" on the basis of which one
governmental body would block imports conclusively establishes that Argentina is also able to
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publish similar "sets of criteria" for the other bodies and, most importantly, for the Secretariat for
Domestic Trade.

21. Argentina also expressly acknowledges that it has not published the actual agreements that
establish each agency's powers in relation to the DJAI system; it has only published a
"standardised model". Therefore, Argentina acknowledges that it has not published the relevant
legal instruments in accordance with Article X:1 of the GATT. Moreover, Argentina acknowledges
that the only documents that have been published are the "statutory regulatory authorities" of the
participating governmental bodies. However, thes e legal instruments contain no reference to the
respective body's powers in the DJAI system. Therefore, they provide no information on the
operation of the DJAI system.

2.2.1.3 Argentina's assertions in relation to Article X:3(a) of the
GATT

22. Argentina's main defence is to assert that the European Union's claims under Article X:3(a)
of the GATT relate to "substantive rules" and no t to the "administration" of rules. Argentina's
assertion is wrong. First, Argentina's assertion contradicts the entire content of Argentina's
submissions in the present case. Argentina repeatedly asserts that the DJAI system is a
"procedure" and not a "substantive rule". It is instructive for the coherence of Argentina's
arguments that the DJAI is presented as a "procedure" when Argentina looks at it from the angle
of Article XI of the GATT, but becomes a "substanti ve rule", when Argentina looks at it from the
angle of Article X:3(a) of the GATT. In any event, according to the Panel Report in Argentina-Hides
and Leather a complaining party may challenge under Article X:3(a) even the substance of a
domestic measure, where that measure is administrative in nature.

23. Second, the European Union is actually challenging the administration of the DJAI. The
European Union's first written submission has explained the reasons for which, in particular, the
Secretariat for Domestic Trade administers the DJAI in a manner that is not predictable and
consistent and, ultimately, not uniform, impartial and reasonable.

2.2.2. Issues relating to the Import Licensing Procedures Agreement

2.2.2.1 Argentina's defence in relation to the Import Licensing
Procedures Agreement

24. Argentina in its submissions did not presen t specific responses to the European Union's
claims under Articles 1.3, 1.4(a), 1.6, 3.3 and 3.5(f) of the Import Licensing Procedures
Agreement. Rather, Argentina's defence is based on two main assertions addressing the scope of
the ILP Agreement. First, Argentina asserts that the co-complainants have followed an "overly
expansive" interpretation of the term "import lice nse" in Article 1.1 of the ILP Agreement. Second,
Argentina asserts that, in any event, the "application and documentation" which the DJAI "collects
and processes are clearly for customs purposes" and, therefore, the DJAI is "not covered by the
ILP Agreement under any circumstances". Argentina also asserts that "the Panel has to begin its
analysis with the complainants' claims under the ILP Agreement", which allegedly "operates as lex
specialis in relation to the provisions of both Article VIII and XI with respect to customs
formalities".

2.2.2.1.1 The notion of "import license" in Article 1.1 of
the Import Licensing Procedures Agreement

25. Argentina's assertion on the alleged "overly ex pansive" interpretation of Article 1.1 of the
ILP Agreement is wrong for a number of reasons. Firs t, Argentina's definition of "import license" is
circular. Argentina asserts that Article 1.1 of the ILP Agreement defines "import licenses" as
"import licensing regimes". This is tautology, wh ich deprives the text of Article 1.1 of the ILP
Agreement of any interpretative value.

26. Second, the European Union notes that the footnote to Article 1.1 expressly expands the
notion of "import licensing" to administrative procedures that are not called "licensing". Moreover,
the European Union notes the absence of a comma after the words "import licensing regimes" in
the body of Article 1.1. This shows that the word s "requiring the submission of an application or
other documentation" are directly linked to, and inform the meaning of, the words "import
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licensing regimes". The proper understanding of this phrase is that the "regimes" that are covered
by Article 1.1 are those which require the submission of an application or other documentation, as
a prior condition for importation. Those "regimes" do not need to fulfil any other condition in order
to fall within the scope of Article 1.1.

27. Third, Argentina is wrong when it asserts that these "regimes" need to be related to the
administration of "quantitative restrictions or other similar measures". Firstly, there is no reference
to "quantitative restrictions" in the text of Article 1.1. Secondly, Article 3.3 of the ILP Agreement
expressly provides that non-automatic import licensing may be used "for purposes other than the
implementation of quantitative restrictions". Th irdly, and most importantly, Article 1.1 expressly
mentions the "submission of an application or other documentation" as the only "prior condition"
preventing the importation.

2.2.2.1.2 Is the DJAI "application and documentation"
for "customs purposes"?

28. Argentina has not denied that the DJAI legislation is separate from its customs legislation.
Neither Argentina has denied the involvement on non-customs governmental bodies in the DJAI
system. Likewise, Argentina has not denied that, when the Secretariat for Domestic Trade blocks a
particular importation, it requires the applicant to provide it with documents and information on
the applicant's exports and prices of unrelated goods. Argentina has simply asserted that these
documents and information are for "customs clearance purposes" and "entirely within the
parameters of the SAFE Framework and WCO Data Model". This assertion is wrong.

29. No WCO document includes in its "parameter s" information on the importer's exports and
prices on unrelated goods. Also, as the European Union noted in its second written submission and
in the paragraph 68 of its Opening Statement in the Second Hearing, Argentina has also
acknowledged, in essence, that the legal effects of a DJAI authorisation are different from the legal
effects of customs clearance. Moreover, as was di scussed during the First Hearing, the purpose of
"advanced electronic information procedures" that are based on "risk assessment and
management" is to expedite and facilitate the selection of the cargoes that should be inspected
physically by the customs officials of the importing country, upon the cargoes' arrival at the ports
of the importing country. However, this is not what the DJAI achieves. Quite to the contrary, the
DJAI prevents the arrival of the cargoes into the ports of Argentina. As identified during the First
Hearing, this element alone suffices to establish that the DJAI is not for "customs purposes".

2.2.2.1.3 Argentina's assertions on the nature of the
Import Licensing Procedures Agreement as
"lex specialis"

30. Argentina has asserted that the ILP Agreement "operates as lex specialis in relation to the
provisions of both Article VIII and XI with respect to customs formalities". (sic) It is difficult to see
how the ILP Agreement can operate as "lex specialis in respect to customs formalities", when
Argentina expressly acknowledges that customs matters are excluded from that Agreement's
scope. In any event, the Appellate Body in EC-Bananas III has confirmed that both the GATT and
the ILP Agreement may apply on specific measures. Consequently, Argentina's assertions are
legally baseless and should be rejected. The Panel should first examine the European Union's
claims under the GATT. If the Panel finds that the DJAI constitutes a non-automatic import license,
then the Panel should analyse the European Un ion's claims under Article 1.3 of the Import
Licensing Procedures Agreement, before the claims under Article X:3(a) of the GATT.

3. RESTRICTIVE
 TRADE-RELATED REQUIREMENTS

31. The European Union notes that Argentina has failed to engage in rebutting the evidence
provided by the European Union showing the exis tence of the RTR requirements, despite of the
fact that the Panel has posed several questions directly to Argentina. The European Union requests
the Panel to draw appropriate inferences from Argentina's refusal to provide the requested
documents. Further, and importantly, the Europe an Union observes that Argentina has actually
recognised the facts as evidenced by the Europe an Union when acknowledging their existence as
"unrelated 'one-off' actions". However, Argentina disagrees with the legal characterisation of those
actions as a single, unwritten overarching measure with precise content, and with general and
prospective operation. Below is the summary of the European Union submission showing that
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Argentina's arguments are without merit together with the with the summary of the European
Union comments on Argentina's responses to some of the Panel's Questions after the first meeting
and of the European Union comments to the Panel's communication dated 6 November 2013
relating to the European Union's decision not to adopt special procedures under Article 13 of the
DSU.

3.1. T
HE EUROPEAN UNION HAS IDENTIFIED THE PRECISE CONTENT OF THE RTR REQUIREMENTS AS AN
OVERARCHING MEASURE

32. Argentina's assertion that the European Union has failed to establish the precise content of
the RTR requirements as an overarching measur e must fail. Following the description of the
measures at issue as identified in the EU Panel Request, the European Union included Section
4.2.1 in its first written submission, where the European Union describes the measures at issue as
including (1) the RTR requirements as an over arching measure, and (2) 23 separate measures
where Argentina has imposed one or more of the RTR requirements.

33. From the description of the RTR requirement as an overarching measure, it becomes obvious
that the European Union is challenging a measur e attributed to Argentina ("measure established
by Argentina"), whereby Argentina requires certain economic operators to undertake one or more
of the five actions. i.e., i.e., the one-to-one re quirement, import reduction requirement, the price
control requirement, the import substitution requ irement, investment requirement. (and referred
to as "RTR requirements") that prohibit or restri ct the importation of products and/or the use of
imported products in Argentina. The European Union further identifies the objectives pursued by
the overarching measure, as eliminating trade balance deficits and/or substituting imported
products by domestic products. The European Union further confirms that the measure has a
general scope, since Argentina decides to impose one or more of those requirements depending on
how the economic operator or sector in Argentina can best contribute to achieving Argentina's
trade balance and import substitution objectives. In this sense, the measure at issue is
"overarching", "all-embracing" or "in extended use" in Argentina since the RTR requirements apply
to a range of situations, to a variety of economic operators and sectors, as evidenced in the EU's
first written submission. Thus, the RTR requirements are not isolated cases, but an overarching
measure applied to a wide range of situations, and has become the "rule" for companies doing
business in Argentina. Such 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. This is why
the European Union "challenges the overarching measure established by Argentina". Challenging
each of the RTR requirements as isolated cases will not get rid of the problem faced by the EU
industry. Finally, the European Union indicates th at the measure is unwritten, in the sense that
"these requirements have not been published". In sum, by identifying the specific actions (RTR
requirements) that prohibit or restrict the impo rtation of products and/or the use of imported
products in Argentina, the objectives pursued by the overarching measure, the unwritten nature of
the measure and its general and prospective application , all attributable to Argentina , the
European Union considers that it has identified the measure at issue with sufficient precision.

3.2. T
HE RTR REQUIREMENTS AS A SINGLE OVERARCHING MEASURE IS DIFFERENT FROM THE FIVE
REQUIREMENTS INDIVIDUALLY IDENTIFIED BY THE EUROPEAN UNION

34. Contrary to what Argentina states, the RTR requirements as an overarching measure is not
simply a series of distinct and unrelated actions; rather, the imposition of RTR requirements 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. As Argentina observes, the existence of the
overarching measure depends on showing, inter alia, that Argentina has imposed one or more of
the five RTR requirements. However, this is not the same as saying that the content of each RTR
requirement is the same as the content of the RT R requirements as an overarching measure. The
content of the overarching measure is different fr om the five types of RTR requirements. Indeed,
the overarching measure implies the existence of a single unwritten measure whereby Argentina
seeks to impose certain trade-restrictive actions on economic operators with a view to achieving
two specific objectives.

35. That Argentina is pursuing those objectives st ands from the multiple official statements the
European Union has put on the record and that Argentina does not appear to contest. Indeed, in
its response to Question 8, Argentina does not pr ovide any evidence that the official statements
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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cited therein are incorrect. Argentina has not disputed its policy of "managed trade" either. Thus, it
is undisputed that Argentina employs multiple instruments, including the limitation of imports, in
order to pursue its objectives of eliminating trade balance deficits and achieving import
substitution. The objectives of eliminating trade balance deficits and replacing imported products
by domestic products could not be achieved by "unrelated 'one-off' actions", as Argentina asserts,
but through a coordinated action.

36. The panel in Japan – Apples similarly treated nine inter-related and cumulative legal and
administrative requirements actually applied by Japan to the importation of US apple fruit as
comprising one single sanitary and phytosanitar y measure for the purpose of evaluating the US
complaint against those requirements. In following the same approach, the implementation panel
explained that the original panel had treated "the requirements imposed by Japan as several
elements of one single measure, essentially beca use all the requirements were presented as part
of a systemic approach". In the present case, th e imposition of RTR requirements on economic
operators is part of a systemic approach and coordinated action seeking to achieve the trade
balance and import substitution objectives pursued by Argentina.

3.3. T
HE EUROPEAN UNION HAS SHOWN THAT THE RTR REQUIREMENTS AS AN OVERARCHING MEASURE
HAS A GENERAL AND PROSPECTIVE APPLICATION

37. As part of its challenge of the RTR requirem ents as an overarching measure, the European
Union is challenging the existence of an unwritten measure which has a general and prospective
application, rather than a set of unrelated actions taken by Argentina. In other words, the
European Union is challenging the "rule or norm" that is not expressed in the form of a written
document whereby Argentina requires economic operators to undertake one or more of the five
types of actions with a view to achieving its trade balancing and import substitution objectives.

3.3.1. The RTR requirements as an overarching measure has general
application

38. The European Union has shown that the RTR requirements as an overarching measure is a
generally applicable rule or norm governing the importation and/or sale of goods in Argentina.
Contrary to what Argentina asserts, the European Union does not need to show that such a rule
applies to the importation and/or sale of "all" goods in Argentina. As explained before, the
European Union has not defined the measure at issue in that manner. Rather, the European Union
has stated that the Argentine Government decides to impose one or more of these requirements
depending on how the economic operator or sector in Argentina can best contribute to achieving
Argentina's trade balance and import substitution objectives. In this sense, the overarching
measure potentially applies to all goods in Argentina. This does not mean that such a measure
indeed applies to all goods in Argentina in the sense that all goods are subject to one or more RTR
requirements.

39. In any event, for a measure to be of "general application" it is not necessary that such a
measure applies to all goods in Argentina. In this respect, the panel in US – Underwear found that
insofar as the restraint at issue affected an un identified number of economic operators, the
administrative order was a measure of general application. In the present case, the European
Union has shown that this overarching measure applies to many economic operators and sectors in
Argentina (such as automobiles, auto parts, motorcycles, trucks, tires, metallurgical products,
agricultural machinery, retail apparel, books and other publications), which are required to comply
with one or more of the RTR requirements. Argentina has not denied the existence of any of them.
Consequently, the European Union has shown th at the RTR requirements as an overarching
measure amounts to a measure of general application.

3.3.2. The RTR requirements as an overarching measure has
prospective application

40. Moreover, the European Union has shown th at the RTR requirements as an overarching
measure is a "rule" with prospective application. Contrary to what Argentina argues, the RTR
requirements are not isolated or unrelated "one-off" actions. As mentioned before, they are part of
a systemic approach and coordinated efforts to achieve Argentina's trade balancing and import
substitution objectives. Until Argentina does not announce a change in its policy objectives, it
should be presumed that Argentina will continue taking similar actions which prohibit or restrict
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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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.

41. The evidence that the European Union has put before the Panel to demonstrate the
prospective application of the unwritten rule is manifold. The evidence consists of considerably
more than a string of cases, or repeat action, based on which the Panel could simply "divine" the
existence of a measure in the abstract. In addition to information contained in newspapers from
various sources, the European Union has provided, inter alia , official press releases by the
Argentine authorities, official documents produced by the Argentine authorities, documents made
by public notaries and surveys by different indust ry associations speaking to the existence of the
overarching measure as part of a systemic appr oach and coordinated efforts by the Argentine
authorities to achieve their stated objectives. In any event, "repeated course of action" can, in
certain circumstances, be evidence of an unwritten measure with future applicability. Indeed,
when completing the analysis and assessing th e existence of the measures asserted by the
European Communities in US – Continued Zeroing , the Appellate Body emphasised that it was
looking for evidence of future applicability. Thus, the Appellate Body assessed the "repeated
course of action" as evidence of an unwritten measure that would "likely continue to be applied".
Similarly, in Thailand – Cigarettes , the panel noted that "the actual application of an unwritten
general rule will clearly qualify as evidence of the existence of such a rule". Thus, the fact that
Argentina has repeatedly imposed various RTR requirements on a variety of economic operators in
Argentina also speaks to the existence of an unwritten rule with prospective application. In this
respect, the European Union observes that Argentina has not contested the facts as evidenced by
the European Union; nor has Argentina stated that the same actions, still taking place today, will
not continue also in the future. In addition, the European Union observes that Argentina wrongly
posits that the alleged commitments described by the European Union do not have normative
content at all since they neither require nor commit prospective courses of action. This is incorrect.
As a matter of fact, the agreements 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.

3.3.3. Argentina's reliance on EC – Large Civil Aircraft is misplaced

42. Finally, contrary to what Argentina asserts, the panel in EC – Large Civil Aircraft does not
support Argentina's arguments in this case. In fact, Argentina is relying on a section of the panel
report that was declared moot by the Appellate Body. In any event, the European Union is very
aware of the consequences of challenging the RTR requirements as a single unwritten measure.
However, unlike the United States in EC – Large Civil Aircraft , the European Union has met its
burden of showing the existence of such an ov erarching measure as described by the European
Union. Indeed, in EC – Large Civil Aircraft , the panel found that the alleged unwritten LA/MSF
Programme as described by the United States did not exist. The United States had described the
alleged unwritten LA/MSF Programme as a measure that "creates expectations among the public
and among private actors, demonstrating that it has normative value". Specifically, the panel
found that the United States failed to show that "LA/MSF, by definition, involves below-market
financing" and that "any LA/MSF granted in the future will involve non-commercial interest rates".
The panel reasoned that below-market interest rates were not an explicit feature of the LA/MSF
contracts; that there was nothing inherent in the LA/MSF contracts rendering them a form of
financing that by definition will always involve below-market interest rates; and that interest rate
advantage obtained by Airbus varied across the different LA/MSF contracts, in general diminishing
with every new model of LCA. According to the pane l, "to the extent that past instances of LA/MSF
might be argued to evidence a broader co-ordinated financing programme, they do not support a
conclusion that such a programme would necessarily involve the provision of loans in the future at
below-market interest rates". In the present case, the European Union has shown that Argentina
imposes one or more of the five types of RTR requ irements as part of a systemic and coordinated
approach 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. Thus, the
European Union has demonstrated all the elements of the precise content of the RTR requirements
as a single unwritten measure.
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3.4. EU' S COMMENTS ON ARGENTINA'S RESPONSES TO THE PANEL'S QUESTIONS AFTER THE FIRST
MEETING

3.4.1. Question 7 – Value of the Plan Estratégico Industrial 2020

43. Argentina criticises the value that the European Union grants to the Plan Estratégico
Industrial 2020 as establishing basic guidelines of Argentina's industrial policy over the current
decade. However, this is what the document in question indisputably states several times.
Argentina does not dispute the content of the pages the European Union has referred to either.

44. Argentina further argues that the objectives described therein are pursued in a manner that
is consistent with the covered agreements. The European Union does not question the fact that
Argentina can use instruments such as anti-dumping duties, in order to defend its industry against
injurious dumping. The European Union does no t question either any natural process where a
domestic industry increases its competitiveness and it is able to replace imports on a qualitative
basis. Instead, the European Union has shown that in pursuing those objectives Argentina has
adopted the DJAI system and the RTR requirements which are in breach of several covered
agreements. The European Union also wonders about statements contained in the Plan Estratégico
Industrial 2020 where the application of non-automatic import licenses is mentioned as "one of the
instruments that have allowed the sector to substitute imports". The European Union disagrees
with Argentina that the use of non-automatic import licenses could be a legitimate instrument
according to the covered agreements to favour th e replacement of imported products by domestic
products.

3.4.2. Question 8 – Objectives pursued by Argentina through its
managed trade strategy

45. Argentina rejects seeking to preserve the internal market for domestic products . Argentina
further rejects seeking a limitation on imports. The European Union notes that Argentina does not
provide any evidentiary support to those statements. In contrast, the European Union has
provided evidence, including the Exhibits listed in the Panel's Question, showing that Argentina
pursues those objectives. Quite tellingly, Argentina does not deny having actively pursued a
strategy of so-called "managed trade" (" comercio administrado ") since 2003. Contrary to what
Argentina asserts, such "managed trade" does not allow for a " virtuous convergence"
("convergencia virtuosa ") of public and private interests. The European Union has provided
abundant evidence of this to the Panel where, fa r from willingly agree with the actions suggested
by the Argentine authorities, economic operators ar e forced to e.g. export unrelated products in
order to even out their trade balance. Argentina has not disputed these facts as presented by the
European Union.

3.4.3. Questions 13 and 14 - Value of certain evidence produced by
means of documents signed by a Notary Public, including
affidavits

46. Argentina considers that the statements made by Mr. Richard Rodriguez, a Notary Public in
Geneva, do not have any value if the Panel cannot verify the accuracy of those statements. This is
disingenuous, at least on two grounds. First, the fact that the Notary Public is confirming the
existence of agreements signed between econom ic operators and the Argentine authorities and
containing RTR requirements and that Argentina refuse provide these documents upon the Panel's
request could be sufficient for the Panel to conclude the existence of those agreements and
commitments. Second, those agreements and commitm ents have been heralded by the Argentine
authorities themselves in official press releases, as well as echoed by unofficial sources. This may
also provide the basis for the Panel to conclude th at such documents, as confirmed by the Notary
Public, do exist. Argentina appears to dismiss th e value of the statements made by Mr. Richard
Rodriguez, a Notary Public in Geneva. As a Notary Public, Mr. Rodriguez has given public faith and
thus certified that it has seen copies of the agreements and commitments showing the existence
and content of some RTR requirements. The Nota ry Public provided a general timeframe where
those agreements and commitments were signed since mentioning a specific date per agreement
could allow Argentina to identify the specific companies cooperating with the European Union in
these proceedings. As mentioned in the EU's Response to Question 19, those companies have not
authorised the European Union to disclose those ag reements in view of the risk of retaliation. The
Notary Public could not either disclose the name s or origin of the companies providing those
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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documents. Thus, Argentina's observations with respect to the alleged deficiencies contained in the
document produced by the Notary Public are explained because of the need to keep the identity of
those companies confidential in view of the risk to suffer from retaliation. In any event, the
European Union considers that the document contained in Exhibit EU-14 evidences the existence of
those agreements and commitments. By its part, Argentina has not denied the existence of those
agreements and commitments. And indeed many have been heralded in official press releases.

47. With respect to affidavits, the European Unio n observes that affidavits signed by a Notary
Public are instruments regularly used in panel proceedings to adduce the existence of facts. And
indeed panels and the Appellate Body have regularly accepted declarations contained in affidavits
as evidence.

3.4.4. Questions 16 to 17 – Argentina's refusal to provide certain
documents to the Panel

48. The European Union notes that Argentina's lack of response to these questions is very
telling. The Panel asked Argentina for very precise documents as evidenced in numerous exhibits
submitted by the European Union. However, Argentina does not provide the requested
information; rather, Argentina states that, even acknowledging the facts as evidenced by the
European Union, that would not be sufficient to establish the existence of the RTR requirements as
a single unwritten overarching measure. In other words, Argentina goes as far as not contesting
the factual evidence adduced by the European Union and relies on a legal characterisation of those
facts as not showing the existence of the measure at issue as described by the European Union. As
explained before, such allegation must fail. As the Appellate Body has explained in US-Continued
Zeroing, a particular piece of evidence, even if not sufficient by itself to establish an asserted fact
or claim, may contribute to establishing that fact or claim when considered in conjunction with
other pieces of evidence. Also, the Appellate Body has explained that a prima facie case is one
which, in the absence of effective refutation by the defending party, requires a panel, as a matter
of law, to rule in favour of the complaining party presenting the prima facie case. Therefore, the
European Union considers that the Panel should also take into account Argentina's lack of rebuttal
of the facts as presented by the Eu ropean Union when weighing the totality of the evidence in this
case. In the European Union's view, the only conclusion that the Panel should reach when making
an objective assessment of the matter is that th e European Union has demonstrated the existence
of the RTR requirements as an overarching measure.

3.4.5. Question 26 – Nota de Pedido

49. Once again, the European Union observes that Argentina does not rebut the existence of the
"Nota de Pedido" as described by the European Union in its submissions. As mentioned before,
there is ample evidence that the generic "Nota de Pedido" (i.e., the form that needed to be sent
together with the DJAI request) as well as the "Nota de Pedido DJAI Observada" (i.e., the
information that was needed to be provided to the Secretary for Domestic Trade once a DJAI had
been "observed") began in January and February 2012, as well as that such a mechanism still
exists. In addition, since December 2012, another "Note", this time referred to as an "Export
Declaration Form", was distributed to economic operators as proof of complying with their trade
balancing commitments. Even without a DJAI observed an operator may be requested to fill in an
"Export Declaration Form". "Export Declaration Forms" are separate from the DJAI itself but are a
condition sine qua non to receive any DJAI, i.e. if an operator is requested to fill in "Export
Declaration Form" and does not do it, its DJAIs will never be cleared.

3.4.6. Question 42 – Value of unofficial press clippings

50. First, Argentina maintains that none of th e evidence provided by the European Union is
relevant for the interpretation of the measures at issue. Argentina does not support such a
statement. Rather, it appears that Argentina confus es issues of "interpretation" of the meaning of
the measure at issue (i.e. its precise content) with issues of proof (i.e., showing the existence of
the RTR requirements as an overarching measure). Second, Argentina restates its argument that
none of the journalistic material, regardless of it s source, can be considered to have any probative
value. The European Union already addressed this argument in its Opening Statement in the First
Hearing. Panels have been inclined to accept the information provided by newspapers, and
especially in cases like the present one, where th e respondent did not challenge the truth of the
facts reported by those newspapers. Third, Argentina rejects the recurrent use of print media
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linked directly or indirectly to the monopolistic structure of Grupo Clarin SA , in partnership with
the newspaper La Nación. The European Union has already expressed its views about this. The
facts reproduced by those media have been reported by many different media as being the same,
and Argentina has not disputed those facts. Moreover, Argentina wrongly claims that the European
Union recurrently provided Grupo Clarin and La Nación press clippings. Press clippings from Clarin,
La Nación and connected media are only a small part (less than 25 %) of all written press clippings
provided by the European Union in its first writte n submission, and obviously an even smaller part
(less than 10 %) of all evidence submitted. In addition, the European Union would like to note that
Argentine legislation ensures press freedom. Although there is concentration in the written press
sector, there are still sufficient newspapers to guarantee access to information by the public. In
fact, Argentine society still trusts the press as a credible source of information. Finally, the
European Union observes that of the 24 different media listed in the Panel's Question, Argentina
has only provided evidence of its relationship with Grupo Clarin SA with respect to two: Diario "Los
Andes" and "La Voz del Interior". Argentina has not supported its vague assertion ("etc") with
respect to other media that they are related to Grupo Clarin SA . The Panel should draw the
pertinent consequences accordingly.

3.5. EU'
S COMMENTS ON THE PANEL'S COMMUNICATION DATED 6 NOVEMBER 2013

51. The European Union clarifies that, as noted in the EU's comments on the suggested special
procedures, the adoption of such special procedures under Article 13 of the DSU was not necessary
in view of the particular circumstances of this case. On the one hand, the Panel already has on the
record evidence showing the existence of letters containing RTR requirements (e.g. the letter of
four industry associations of pork producers provided to Secretary Guillermo Moreno).
Furthermore, there is also evidence of the ex istence and content of the agreements signed
between private operators in Argentina and the Argentine authorities, as heralded by the
Argentine authorities themselves in numerous official documents (and listed in Annex 1 of the
Panel's first set of questions). On the other hand, Argentina is in possession of such documents
and is in a better position to provide them to the Panel. However, Argentina has decided not to
provide such information to the Panel upon its re quest pursuant to a direct question posed to
Argentina. Further, Argentina has decided not to address the evidence produced by the European
Union. That being said, the European Union welcomes the Panel's initiative to propose the
suggested special procedures under Article 13 of the DSU. In this respect, the European Union
observes that the suggested procedures were sim ilar to the steps taken by the European Union to
produce Exhibit EU-14. The main concern was, howe ver, to ensure that the responses provided by
the independent expert did not reveal somehow the identity of the companies at issue. Hence, the
European Union provided its comments to that effect.

52. The European Union considers that, other th an the special procedures suggested by the
Panel including all guarantees not to disclose any information relating to the identity of the
companies at issue, there may not be any alternative means for the Panel to protect the requested
information in a manner that would enable the submission of such information.

4. CONCLUSION

53. The European Union respectfully requests the Panel to find that the DJAI Requirements and
the RTR requirements are inconsistent with the covered agreements and to recommend that
Argentina brings itself into compliance with its obligations under the covered agreements.
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ANNEX B-3
FIRST PART OF THE EXECUTIVE SUMMARY
OF THE ARGUMENTS OF THE UNITED STATES
FIRST WRITTEN SUBMISSION

1. Argentina imposes licensing procedures which it uses to restrict imports of goods with the
aim of protecting the domestic economy. Argentina often withholds approval of these licenses
unless the importer agrees to take actions to restrict imports, export goods, make investments,
refrain from repatriating profits, or use local content in its production.

2. Argentina declines to publish many of the rules related to their operation, as required by the
WTO agreements. However, the evidence presented by co-complainants in this dispute reveals
their existence and widespread operation. Argentina's licensing regime and the requirements it
places on importers restrict imports in violation of Article XI:1 of the GATT 1994. In addition,
Argentina's import regime is non-transparent and ar bitrary, failing to comply with the publication,
administration and notification provisions of Articles X:1 and X:3(a) of GATT 1994, as well as
Articles 1.4(a), 3.2, 3.3 and 5 of the Import Licensing Agreement. Finally, Argentina's licensing
procedures fail to meet the requirements of Ar ticles 1.6 and 3.5(f) of the Import Licensing
Agreement related to the operation of a licensing regime.

I. FACTUAL BACKGROUND

3. Argentina pursues aggressive policies of "trade management" and "import substitution" to
protect domestic industry by restricting the import ation of foreign products and to promote a shift
to local production. To further these goals, Argentina subjects imports to the DJAI Requirement
and the RTRRs.

A. DJAI REQUIREMENT

4. Argentina's Federal Administration of Public Revenue ( Administracíon Federal de Ingresos
Públicos, or "AFIP") issued Resolution 3252 establishing the DJAI Requirement, which became
effective February 1, 2012. Through legal instruments and guidelines, Argentina maintains the
DJAI Requirement as a discretionary non-automatic import licensing system. Until the last workday
before the establishment of the Panel, Argentina maintained product-specific non-automatic import
licenses on over 600 tariff lines ("CIs"). The DJAI Requirement continues and expands the
licensing requirements previously imposed through the CIs.

5. Under the DJAI Requirement, importers of goods into Argentina must submit an application
on the DJAI page of AFIP's website "prior to issuance of an order form, purchase order, or similar
document used to purchase items from abroad." Approval of the DJAI application is a prerequisite
to any import transaction in Argentina, and in order to make foreign payments for imports, the
importer must have an approved DJAI in "exit" status. The information submitted by the importer
is made available to participating government agencies. These agencies must "issue a decision" …
"within the time frame indicated in [each agency's] respective accession instrument." A DJAI is
placed in "observation" status whenever an agency registers an "observation," which suspends the
approval process.

6. Six agencies have acceded to the DJAI system. Different agencies are prescribed different
time periods for placing an observation on an application, from 72 hours to 15 calendar days
(where published). If the time periods expire with out observation, the application enters the "exit"
status and the importer may proceed with the transaction. When an observation is made that
prevents the application from being assigned the "exit" status, the importer must separately
contact the agency making the observation in order to resolve the agency's concern. The importer
bears the burden of determining how to make contact. The DJAI application remains effective for
180 days from the date of its "registration." If any observations have not been resolved within 180
days, the DJAI application is automatically voided unless it is extended.
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7. The relevant instruments contain few – if any – details on, among other things: (a) the
bases upon which a DJAI application may be grante d or denied; (b) what types of "observations"
may be made; (c) what additional information or actions may be required of importers to obtain
approvals; and (d) the timeframe for resolution of observations. The evidence demonstrates that,
in practice, approvals are often only granted after lengthy delays.

8. With respect to AFIP, a DJAI User Manual provides a list of thirteen codes representing
reasons that AFIP may "observe" a DJAI applicatio n. The reasons AFIP may observe an application
are related to the status of the importer's tax identification number (the CUIT), and various tax-
related issues. With respect to SCI, the preamble to SCI Resolution 1 by which SCI joined the DJAI
system, explains that SCI will look to protecting the domestic market as part of SCI's participation.
Legal instruments and other guidance relating to the DJAI system provides no information with
respect to the participation of other agencies.

9. Official Argentine press releases and statements of Argentine officials, as well as instructions
issued by Secretary Moreno to customs broker s, provide evidence of otherwise unpublished
information regarding the granting or denial of DJAI applications.

10. The DJAI process operates separately from Argentina's customs clearance procedure.
Argentina's customs regime predates, and is separate from, the DJAI system. The Argentine
customs regime is administered by the Direct orate-General of Customs. For each import
transaction, the importer must fill out a Despacho de Importación. In addition, the importer must
submit supplementary documentation for the goods in question.

B. RESTRICTIVE TRADE-RELATED REQUIREMENTS

11. The Argentine government has adopted a series of RTRRs on the importation of goods. The
RTRRs are often communicated orally to individual importers, or groups of importers, by Argentine
authorities. The RTRRs are imposed in conjunction with the DJAIs, and previously the CI
Requirement, and approvals are withheld until th e importer complies with the RTRRs. The RTRRs
take the form of commitments to: (1) compensate imports with an equivalent amount of
exports—the "one-to-one" policy; (2) limit the volume or value of imports; (3) incorporate local
content into domestically produced goods; (4) make or increase investments in Argentina; and (5)
refrain from repatriating funds from Argentina to another country.

12. Argentina requires importers to offset the value of their imports with an equivalent value of
exports – often referred to as the "one-to-one" policy. Although typically the importer
compensates the entire value of imports with exports, in some cases an importer may only
partially offset the value of its imports and undertake another type of RTRR to compensate for the
remainder. Argentine government agencies and officials have made numerous statements
describing the one-to-one policy, and examples of its application are in the following sectors:
automobile manufacturing ; trucks and motorcycles; agricultural machinery; books and other
publishers, audiovisual products, tires, agricultural products, white goods, electronic products,
clothing, retail, toys, pharmaceuticals, and auto software and services.

13. Often together with requirements to balance the value of imports with exports, Argentina
also requires importers to limit the volume of impo rts or – less frequently – to limit the unit price
of imports. Argentina has also required importers in certain industries to increase their
incorporation of local content in the goods they purchase or produce in order to receive permission
to import. Some companies are given the option of compensating for part or all of their imports
through making or increasing their investments in Argentina, in addition to or instead of,
undertaking export or import substitution commitments. The final RTRR placed on importers is the
requirement that they refrain from repatriating profits made in Argentina. This requirement
appears aimed primarily at controlling the outflow of foreign reserves.
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II. LEGAL DISCUSSION
A. THE DJAI REQUIREMENT IS INCONSISTENT WITH ARTICLE XI:1 OF THE GATT 1994

1. The DJAI Requirement is a "Restr iction" Prohibited by Article XI:1

14. The DJAI Requirement is a "restriction" wi thin the meaning of Article XI:1. The term
"restriction" is defined as "[a] thing which restricts someone or something, a limitation on action, a
limiting condition or regulation." Further, Article XI:1 applies to any "restriction," "whether made
effective through quotas, import or export licenses or other measures," excluding only "duties,
taxes or other charges." Past panels have noted that the scope of the term "restriction," is broad.
The DJAI Requirement constitutes a "restriction" – it imposes "limiting conditions" on importation
because (a) approvals are not granted in all cases; (b) approvals are made contingent upon the
RTRRs; and (c) approvals are granted after delay.

15. A measure is a restriction under Article XI:1 if approval for importation is not granted in all
cases. This fact is confirmed by the ordinary meaning of "restriction": if not all imports are allowed
to enter a country as a result of measure, that measure is "a limiting condition." The DJAI
Requirement restricts imports because agencies may lodge "observations" for any number of
reasons, effectively denying the import application unless and until the observation is lifted. If an
agency does not lift the "observation," the applicat ion enters the "voided" status after 180 days –
effectively denying the application. The failure to grant the license in the operation of the DJAI
Requirement is described in domestic Argentine court cases. Statements by government officials
confirm that the purpose of the DJAI Requiremen t is to restrict imports and protect domestic
industry.

16. The DJAI Requirement is also a "restriction" be cause it is highly discretionary. If an import
licensing system is "discretionary" the authority has latitude to grant or deny licenses. Thus, in a
discretionary licensing system, licenses may be denied, resulting in a restriction, or limitation, on
imports. The DJAI requirement is highly discretionary, because (1) the implementing measures
contain no criteria for approval or denial and no basis for denials; (2) importers must provide
unspecified additional information in order to satisfy an "observation"; and (3) there is no stated
timeframe for processing applications. Through this system, SCI is able to place an "observation"
while refusing to explain the reasons to the importer.

17. The panel in India – Quantitative Restrictions concluded that India's licensing requirement
constituted a non-automatic licensing system and Article XI:1 restriction because licenses were
"not granted in all cases, but rather on unspecified 'merits'." In China – Raw Materials , the panel
observed that "if a licensing system is designed such that a licensing agency has discretion to
grant or deny a license based on unspecified criteria" it would be discretionary and not consistent
with Article XI:1. The absence of any procedures or criteria for evaluating licenses, or of
demanding additional action or information from importers, leaves the various participating
agencies with wide discretion to grant or deny the licenses. The DJAI Requirement is therefore
discretionary (and non-automatic), and a restriction under Article XI:1.

18. The DJAI requirement also restricts imports because Argentine authorities use the discretion
afforded in their approval of the applications to impose RTRRs as conditions for import. The RTRRs
"restrict" imported within the meaning of that term under Article XI:1 because importers may only
import goods to the extent that they satisfy th e RTRRs imposed by Argentina. Because the DJAI
Requirement affords Argentine authorities the discretion to place such conditions on importation, it
is a restriction on importation.

19. Finally, the DJAI Requirement also restricts imports because licenses are only granted after
delay. Importers must wait an unspecified period of time, which can extend to months, to receive
approvals for their import licenses. The Impo rt Licensing Agreement provides context for
understanding how delays serve as "restrictions" under Article XI:1. "Automatic import licensing" is
defined in Article 2.1 "as import licensing where approval of the application is granted in all cases,
and which is in accordance with the requirements of paragraph 2(a)." According to the
introductory clause of Article 2.2(a), certain characteristics of a licensing procedure are presumed
to have "restricting" effects, even if licenses are granted in all cases. One such feature is a delay in
processing of over ten working days. It is not enough for a license to be granted in all cases in
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

- B-28 -

order for it to "not administered in such a manner as to have restricting effects on imports," the
license must also be granted in a timely manner.

20. The time period for the SCI to consider whether to place an observation on a DJAI
application is 15 days, exceeding the ten days set out in Article 2.2(a)(iii). Further, after an
observation is made by any participating agencies, there is no timeline for a decision on whether
to grant the application. Because the importer must reach out to the agency, provide further
information, and the agency must then consider whether to remove the observation, the total time
elapsed would far exceed the "immediate" approval (or a maximum of ten working days) described
in the definition of "automatic" import licensing. As is demonstrated by the evidence, importers
experience significant delays in the processing of their DJAI applications.

21. In several disputes under the GATT 1947, panels made a connection between the timing of
application approvals and whether or not a license requirement constitutes a prohibited restriction
under Article XI:1, using the terms "non-automatic" and "automatic" to describe prohibited
restrictions and permitted licensing measures, respectively.

22. The evidence regarding the implementation of the DJAI Requirement confirms what is
apparent on the face of the legal instruments – that the applications are not approved in all cases,
and that the DJAI Requirement is a highly discretionary and non-transparent restriction enabling
Argentine officials to condition approval on compliance with RTRRs, and that importers experience
lengthy delays in receiving approvals. All of these factors independently support a finding that the
DJAI Requirement is inconsistent with Article XI:1 of the GATT 1994.

2. The DJAI Requirement Is an Im port License or Other Measure

23. The DJAI Requirement is a restriction made effective through an import license or other
measure within the meaning of Article XI:1. More specifically, the DJAI Requirement is a restriction
made effective through "import … licenses." The ordinary meaning of "license" is "'[f]ormal,
usu[ally] printed or written, permission from an authority to do something … or to own something
… ; a document giving such permission; a permit'." Thus, an "import license" is permission granted
by a competent authority to bring merchandise into a Member. Article 1.1 of the Import Licensing
Agreement defines "import licensing" for purposes of that agreement and provides context for the
interpretation. Footnote 1 to Article 1.1 explains that "administrative procedures" qualifying as
import licensing procedures include "[t]hose procedures referred to as 'licensing' as well as other
similar administrative procedures." A procedure that (a) requires "the submission of an
application" (b) as "a prior condition for importation" satisfies the definition.

24. The DJAI Requirement falls within both the ordinary meaning of the phrase "restriction …
made effective through … import … licenses", as well as the definition of import licensing set forth
in the Import Licensing Agreement. In particular, an importer must submit an electronic
application for an import in the DJAI system, and obtain an approval, demonstrated by the "exit"
status in that system, as a prior condition for import. More specifically, the various agencies
determine, based on the application information, whether to allow the application to pass to the
"exit," or to lodge an observation, moving the application into the "observed" status. Once that
happens, an importer must contact the agency making the comment to determine what further
action, whether the submission of additional information or something else, is required. The
importer may not import the goods until the agency is satisfied and approval is obtained and the
status moves to "exit." This procedure meets all of the requirements of an import licensing
procedure, and therefore the DJAI approval is an "import … license" under Article XI:1.

25. Furthermore, the DJAI application and other documentation is not "required for customs
purposes" and therefore is not of the type excluded from the definition of "import licensing" in the
Import Licensing Agreement. Argentina has separate customs procedures, whereby customs
information is collected and duties and other f ees are assessed. In addition, although AFIP
participates in the DJAI system, it does so for tax reasons, not reasons related to customs
administration. Other agencies also participate in the DJAI system, none of whom have customs
administration responsibilities. Where the purposes of an agency's evaluation—and therefore the
documentation and other information the agen cy might request in order to satisfy an
"observation"—is set out it is for other than "customs purposes." Thus, the DJAI Requirement
constitutes a restriction made effective through an "import license" under Article XI:1.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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B. THE IMPOSITION OF RTRRS IS INCONSISTENT WITH ARTICLE XI:1 OF GATT 1994

26. Argentina's use of RTRRs to condition import approvals under the DJAI system demonstrates
that the DJAI Requirement is an import restriction, resulting in a breach of Argentina's obligations
under Article XI:1. In addition to considering Argentina's RTRRs in conjunction with the DJAI
system, the RTRRs are distinct measures that cause trade restrictions, and result in a separate
breach of Argentina's obligation under Article XI:1. Argentina has not published its RTRRs. This
failure, however, does not shield these measures from challenge under the WTO Agreement. To
the contrary, where the record establishes that a Member has adopted an unpublished measure,
the measure may be examined for its consistency with the substantive provisions of the WTO
Agreement, and with procedural transparency obligations.

27. Argentine authorities enforce RTRRs by wit hholding approvals of imports such as through
the DJAI Requirement, and previously the CI Re quirement. Authorities implement these licensing
requirements in a highly discretionary manner, including by withholding approvals until an
importer complies with RTRRs. Argentina has imposed RTRRs in conjunction with a licensing
requirement in sectors including the auto, agricult ural machinery, clothing, and white goods. The
United States has presented many examples of the imposition of RTRRs across product groups and
sectors. Coupled with the statements by Argent ine officials, these examples demonstrate that
Argentina imposes RTRRs on importers, whether in conjunction with DJAI Requirements, the
predecessor CI Requirements, or separately.

28. Argentina's imposition of RTRRs constitutes a "restriction" within the meaning of Article XI:1
because it serves as a "limitation" on imports. Importers are restricted in the amount of goods that
they may import based on their ability to satisfy the RTRRs. The India – Autos panel determined
that India required importers to balance the value of imported auto kits and components with the
value of exports from India, and that this requ irement was a restriction under Article XI:1. The
panel concluded that, even though an importer could theoretically import an unlimited amount of
goods, so long as the value of the imports was balanced by that of exports, this requirement
imposed a practical limitation on imports. Similarl y, RTRRs impose a practical limit on the volume
of imports due to the conditions Argentina places on importation. The measure acts as a
disincentive to importation by imposing additional costs on importers and, where the importer is
unable to fulfill the condition, preventing imports. Other panels have found that a restriction within
the meaning of Article XI:1 may operate through the measure's impact on transaction costs or
market access.

29. The various RTRRs that Argentina imposes on importers impose burdens on the importation
of foreign goods, creating disincentives to importation and limiting the volume of imports. For
these reasons, Argentina's imposition of RTRRs constitutes a "restriction" prohibited by GATT 1994
Article XI:1.

30. Argentina's RTRRs make effective a restriction on importation though "quotas, import …
licenses or other measures." The scope of "other measures" in Article XI:1 includes any measure
that restricts imports, "excluding from its coverage only 'duties, taxes, or other charges.'" Other
obligations in the GATT 1994 relate more narrowly to "laws and regulations" or "laws, regulations,
judicial decisions and administrative rulings." In contrast, Article XI:1 applies to the broader scope
of "measures".

31. For these reasons, the RTRRs are a "restriction" within the meaning of Article XI:1 and are
inconsistent with that provision.

C. THE
 DJAI AND RTRR REQUIREMENTS ARE INCONSISTENT WITH TRANSPARENCY
OBLIGATIONS UNDER THE IMPORT LICENSING AGREEMENT AND THE GATT 1994

1. Argentina Has Failed to Publish Suffici ent Information Regarding the Basis for
Granting or Allocating Licenses, as required by Article 3.3 of the Import Licensing
Agreement

32. Article 3.3 of the Import Licensing Agreemen t applies to the DJAI Requirement, because the
DJAI Requirement is (a) an import licensing procedure, (b) is non-automatic, and (c) is a licensing
requirement for purposes other than the implementati on of quantitative restrictions. First, for the
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

- B-30 -

reasons described at Section IV.A.2, the DJAI Requirement is import licensing within the meaning
of Article 1.1 of the Import Licensing Agreement.

33. Based on the ordinary meaning of Import Li censing Agreement Article 3.3, when read in
context and light of the object and purpose of th e Import Licensing Agreement, the obligation to
"publish sufficient information for other Members and traders to know the basis for granting and/or
allocating licenses" requires that Members disclose the "set of underlying principles" or the
"determining principle" upon which import licenses are granted and/or allocated, and do so in an
appropriate medium for other Members and traders to become familiar with them.

34. The DJAI resolutions and related measures do not provide sufficient information for
Members or traders to know the basis for granting DJAI approvals. The relevant legal instruments
contain little, if any, information regarding the permissible bases upon which SCI or other agencies
may lodge an observation. Argentine officials have provided little guidance other than general
statements appearing in official press announcements such as: (a) "protect[ing] Argentine
industry;" (b) whether a DJAI applicant has agreed to comply with RTRR commitments, including
those relating to "import substitution"; (c) national "economic stability;" and (d) the DJAI
applicant's "balance of foreign exchange" and "the pace of the company's prices." These
statements do not contain sufficient information to allow governments and traders to know the
basis for the decisions, and are not published in a manner that would allow them to do so.

35. In sum, the Argentine authorities have failed to publish the relevant bases in the DJAI
resolutions or any other measures. As a result, it is impossible for traders and Members to know
the "set of underlying principles" or the "determi ning principle" upon which DJAI approvals are
granted.

2. Argentina Has Failed to Publish All Re levant Rules and Information Regarding
Application Procedures and Other Features of the DJAI Requirement as Required
by Import Licensing Agreement Article 1.4(a)

36. Argentina has violated Article 1.4(a) by failing to publish – in a manner that would enable
governments and traders to become acquainted with them – the rules and all information that
relate to the process for securing consideration of, and a decision on, a DJAI application, or any
exceptions, derogations or changes to such rules.

37. For example, Argentina has failed to publish sufficient information for governments and
traders to become familiar with the procedures that a DJAI applicant must follow (e.g., information
submission requirements, deadlines, etc.) to reso lve Argentine agency "observations" and thereby
secure final decision on a DJAI application. In th is respect, Argentina has also failed to publish
sufficient information for governments or traders to become familiar with at least the following:

 The type of submissions (written, oral, mode of transmission), as well as the content of
submissions that DJAI applicants are required to provide in response to agency
"observations";
 A s p a r t o f t h e D J A I a p p l i c a t i o n p r o c e s s , t h e t y p e o f c o m m u n i c a t i o n t o w h i c h D J A I
applicants are entitled when an agency lodges an "observation" in the course of
considering a DJAI application – e.g., whether the relevant agency is required to provide a
communication in writing that describes their reasoning, underlying factual and legal
grounds, and the steps the company must take to resolve the situation.
 Which importation transactions (that is, of which goods) may be blocked by each of the
participating agencies, in connection with the DJAI application process.
 The complete list of agencies participating in the DJAI system and the reasons they may
place an observation on a DJAI, in connection with the DJAI application process.
 What types of requirements Argentine authorities are authorized to impose on DJAI
applicants in connection with the DJAI application process as a condition of releasing an
"observation" and thereby allowing the DJAI application to be granted; and
 The time periods that apply to DJAI "observations," including any time periods for
agencies to respond to additional information provided by applicants, in connection with
the DJAI application process.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

- B-31 -

3. Argentina Has Failed to Promptly with GATT 1994 Article X:1 Publication
Requirements with Respect to the RTRR Requirement

38. With respect to the RTRRs, Argentina has failed to fulfill the GATT 1994 Article X:1 obligation
to publish "promptly" and "in such a manner as to enable governments and traders to become
acquainted with them," the "laws, regulations, judicial decisions and administrative rulings of
general application" "pertaining to … requirements, restrictions, or prohibitions on imports ..." that
a Member has "made effective."

39. The RTRRs, which pertain on their face to "r equirement, restriction or prohibition on imports
…," constitute "regulations" or "administrative rulings of general application" because they are
rules prescribed for controlling importation and re gulating the conduct of importers broadly, and
because they are imposed and enforced by Argentin e officials with authority, control and influence
over such import transactions and importers. Th e evidence demonstrating that Argentine officials
widely apply the aforementioned RTRRs vis-à-vis DJAI applicants and their prospective
importations also makes clear that that these unpublished rules are "of general application."

40. The RTRRs have not been "published." Insomuch as Argentina has simply issued official
press statements that reflect the existence of the RTRRs but not the actual RTRRs themselves,
Argentina has not satisfied the GATT Article X:1 requirement to publish the RTRRs in a manner
that would enable governments and traders to become familiar with them.

41. Argentina has failed to publish the RTRRs promptly, as required by Article X:1 of the
GATT 1994. As discussed above, Argentine authorit ies made the RTRRs "effective" in conjunction
with the DJAI Requirement no later than the effe ctive date of the DJAI regulation, February 1,
2012, and made the RTRRs effective in conjunction with the CIs from at least 2010. To date, the
RTRRs remain unpublished. An extended period of delay in publishing a measure for at least 18
months, and as much as three years, does not meet the requirement of "prompt" publication.

D. ARGENTINA
 HAS FAILED TO ADMINISTER ITS DJAI REQUIREMENT IN A UNIFORM
AND REASONABLE MANNER AS REQUIRED BY GATT ARTICLE X:3(A)

42. Argentina has failed to meet the GATT Article X:3(a) requirements of reasonable and
uniform administration. This conclusion is supported by extensive evidence showing, among other
things, that Argentine authorities act without regard to directly relevant legal authorities, and treat
similarly situated importers with great variance in terms of the delays, disposition and other
aspects of their administration of the DJAI system.

E. THE
 DJAI REQUIREMENT IS INCONSISTENT WITH ARGENTINA'S OBLIGATIONS
UNDER ARTICLE 3.2 OF THE IMPORT LICENSING AGREEMENT

43. As a non-automatic import licensing requirement, the DJAI Requirement is subject to
Article 3.2 of the Import Licensing Agreement. The first sentence of Article 3.2 requires an
identification of the "restriction" being implem ented by the non-automatic licensing procedures.
However, the legal instruments and guidance concerning the DJAI Requirement, reference no such
restriction or limiting condition implemented through the DJAI system, other than that imposed by
the DJAI procedures themselves. Because the DJAI Requirement does not impose an underlying
"restriction," it necessarily has "additional" "trade-restrictive" or "trade-distortive" effects, in
violation of the first sentence of Article 3.2 of the Import Licensing Agreement.

44. The second sentence of Article 3.2 states, in part, that "non-automatic import licensing
procedures … shall be no more administratively burdensome than absolutely necessary to
administer the measure." However, the DJAI Requirement imposes excessive administrative
burdens on importers and does not implement any id entifiable measure. The DJAI system requires
the importer to make an initial application, and contact any number of the six or seven agencies
participating in the DJAI system that may lodge an "observation" without any guidance about how
to contact those agencies, or what additional information or action an importer may be required to
undertake. In contravention of the second sentence of Article 3.2 of the Import Licensing
Agreement, this system is highly burdensome for the importer and is not necessary, as there is no
identified measure implemented by the DJAI system.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

- B-32 -

F. THE DJAI REQUIREMENT IS INCONSISTENT WITH ARTICLE 1.6 OF THE IMPORT
LICENSING AGREEMENT

45. The DJAI Requirement is inconsistent with Article 1.6 because importers must separately
approach up to seven agencies – AFIP, SCI, ANMAT, SEDRONAR, SENASA, INV, and INTI – in
order to resolve observations and receive authorization to import; Article 1.6 provides that
applicants may be required to approach more than one administrative body only if it is "strictly
indispensable." From the purposes of the DJ AI Requirement described in relevant legal
instruments, there is no basis for requiring an applicant to approach more than one administrative
body. None of the stated objectives of the DJAI Requirement render "absolutely necessary or vital"
a system in which applicants must approach more than one agency. Further, Article 1.6 provides
that a licensing system may not require an applicant to approach more than three administrative
bodies under any circumstances. Under the DJAI system, an importer may be required to approach
up to seven agencies.

G. ARGENTINA
 ADMINISTERS THE DJAI REQUIREMENT IN A MANNER INCONSISTENT
WITH ARTICLE 3.5(F) OF THE IMPORT LICENSING AGREEMENT

46. The 30-day time limit in Article 3.5(f) applies to the DJAI Requirement, because applications
are not considered simultaneously, but rather on a first-come first serve basis. The individual
agencies have up to 15 days to lodge observations, and once an observation has been made, there
is no time limit for the resolution of the observation. In practice, as demonstrated by the evidence,
Argentine officials frequently fail to abide by the 15 day time limit.

H. ARGENTINA HAS ACTED INCO NSISTENTLY WITH ARTICLES 5.1, 5.2, 5.3, AND 5.4
OF THE IMPORT LICENSING AGREEMENT BY FAILING TO PROVIDE NOTIFICATIONS

47. Argentina has not notified the DJAI licensing procedure, or any changes thereto, including
changes made by Resolution 3255 and the Updated Annex to Resolution 3255 . As a result,
Argentina has acted inconsistently with Articles 5.1, 5.2 and 5.3. In addition, Argentina has not
notified the Committee of the publications in whic h the information required in Article 1.4 of the
Import Licensing Agreement is published. For these reasons, Argentina has acted inconsistently
with Articles 5.1, 5.2, 5.3, and 5.4 of the Import Licensing Agreement.

III. CONCLUSION

48. The United States respectfully requests that the Panel find that the DJAI Requirement is
inconsistent with Articles X:3(a) and XI:1 of the GATT 1994 and 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, and that the RTRRs are
inconsistent with Articles X:1 and XI:1 of the GATT 1994.

OPENING STATEMENT AT THE FIRST SUBSTANTIVE MEETING

49. Argentina has adopted a system for limiting the importation of goods and for extracting
concessions from importers and foreign companies that restrict trade. Argentina's actions and its
lack of transparency, breach Argentina's WTO obligations. Unjustified delays in, and denials of,
approvals to import goods, and the imposition of unpublished requirements that restrict their
importation, are squarely prohibited by the WTO Agreement. In response to the U.S. submission
establishing prima facie breaches WTO obligations, Argentina does not directly dispute any of the
facts. Rather, Argentina attempts to avoid scrutiny of its measures.

I. ARGENTINA'S DJAI REQUIREMENT IS INCONSISTENT WITH ARTICLE XI:1

50. In its first written submission, Argentina abando ns the text of the agreement, as well as the
reasoning of multiple past panels, and asserts that Article XI:1 does not apply to measures of a
procedural nature. No such limitation exists on the Article's scope.

51. The DJAI Requirement is not merely procedural but is itself a restriction on importation. In
addition, nothing in the text of Article XI:1 limits its coverage in the manner Argentina contends.
Any restriction made effective through any measure (other than duties, taxes or other charges) is
within the provision's scope. Argentina's approach would undermine Article XI:1 by permitting a
Member to restrict as much trade as it likes as long the means is "procedural."
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

- B-33 -

52. A licensing requirement, which Argentina characterizes "procedural," is itself a "restriction"
where it is non-automatic. That was the case with the licensing procedure at issue in India –
Quantitative Restrictions . Even where an import licensing procedure may implement other
identifiable restrictions, this does not mean the import licensing procedure is not a restriction
itself. It may simply mean that the import licensing procedure should be examined according to
the same justification as the underlying WTO-consistent restriction it implements. But that is not
the case here; the DJAI system does not implement a WTO-consistent restriction.

53. The DJAI Requirement is a discretionary non-au tomatic licensing system that operates as an
import restriction. The analysis may end there as the DJAI Requirement does not implement a
substantive rule. Authorities use the DJAI Requirem ent to restrict the imports in a discretionary
manner, including through imposing the RTRRs. Wi thout a separate restriction implemented in
accordance with a justification under the WTO Agreement, the Panel need only examine the
restriction imposed by the DJAI Requirement itself.

54. It is not the case that the RTRRs should be evaluated as the substantive "restriction"
imposed by the DJAI Requirement. First, the RTRRs are not related to a WTO-consistent restriction
and so do not provide a justification for the DJAI Requirement. Second, the RTRRs are not
necessarily implemented through the DJAIs. Rather , the discretion afforded agencies participating
in the DJAI system enables SCI to implement th e RTRRs. The DJAI Requirement is a "restriction"
because (1) the DJAI Requirement is non-automatic; (2) authorities use the discretion to impose
RTRRs; and (3) approvals may be granted only after delay.

55. Argentina also argues that the scope of Article XI:1 is more narrow than was found by past
panels because they did not take into account the term "quantitative" in the title to Article XI:1.
However, the carve-out of "duties, taxes, or ot her charges" from "prohibitions or restrictions"
demonstrates that the obligation of Article XI is not limited to quantitative restrictions. The phrase
"whether made effective through" confirms that the same logic applies to other types of measures
that similarly may impose "restrictions."

56. Finally, Argentina's argument that co-complainants must demonstrate the "trade-restricting
effects," of the DJAI Requirement is unfounded. That term is nowhere to be found in Article XI:1.
Argentina relies on the Appellate Body's statement in China – Raw Materials to support its position.
However, the Appellate Body's use of the term "lim iting effect" is not materi ally different from the
"limiting condition" referred to by the India – Quantitative Restrictions panel, and it does not
ascribe a new meaning to the term. The DJAI Requ irement has a limiting effect because Argentine
officials have full discretion to approve or deny applications.

II.
 ARTICLE VIII IS NOT RELEVANT TO THE PANEL'S ANALYSIS UNDER ARTICLE XI:1

57. Argentina argues that the DJAI Requirement is a "formality" under Article VIII and that
Articles VIII and XI are mutually exclusive. Argentina argues that Article XI:1 therefor does not
apply at all. This argument is untenable. Argentina takes an expansive view of "restriction" in
arguing that the "formalities" described in Article VIII would be prohibited under Article XI:1 if
both provisions apply to the same set of measures. It is not the case that all "formalities" are
"restrictions." To the extent that they are, Article XI:1 does discipline their imposition. Further, co-
complainants are not challenging a "formality." It is not the "formal" aspects of the import
licensing procedure that are at issue; it is the fact that importers cannot import until they have
permission under the DJAI system – permission which Argentine officials have wide discretion to
withhold. Finally, there is nothing in the text of either Article VIII or Article XI:1 that exempts
licensing requirements from Article XI:1. Accordingly, Article VIII is not material to the Panel's
consideration of the claims at issue in this dispute.

58. For the foregoing reasons, the co-complainants have made a prima facie case that the DJAI
Requirement is inconsistent with Article XI:1 of the GATT 1994, and Argentina has offered no
defense or facts to refute that conclusion under a correct interpretation of Article XI:1.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

- B-34 -

III. THE DJAI REQUIREMENT IS AN IMPORT LICENSE REQUIREMENT

A. The DJAI Requirement Is Not a Customs Formality Adopted in Conformity with the
WCO SAFE Framework

59. Argentina argues that the DJAI Requirement is not a license requirement, but is instead "an
advance electronic information customs formality specifically designed in accordance with the
World Custom's Organization's ('WCO') SAFE Framework of Standards to Secure and Facilitate
Global Trade ('SAFE Framework')." However, WC O Members established the SAFE Framework to
"enhance security and facilitation of international trade" in order to counter vulnerabilities in the
global trading system to "terrorist exploitation." In contrast, the DJAI system has nothing to do
with a system of border security. Rather, it is a discretionary licensing system, untied to border-
security measures. The SAFE Framework is built around four "core elements." The DJAI system
departs markedly from each one.

B. The DJAI Requirement Is an Import Licensing Procedure

60. Argentina misreads Article 1.1 of the Import Licensing Agreement and mischaracterizes of
the purpose of the DJAI Requirement. Argentina em ploys circular reasoning in support of a narrow
definition of "import licensing," arguing that the phrase "used for the operation of import licensing
regimes" in Article 1.1 informs the scope of "import licensing" in that provision. The fact that
"import licensing" is "used for the operation of import licensing regimes" reveals little or nothing
about the meaning of the term "import licensing."

61. As the Appellate Body observed, if a procedure requires "the submission of an application"
for an import license as "a prior condition for importation," it is a licensing procedure. An "import
license" involves a permission granted by a co mpetent authority to bring merchandise into a
Member from another Member. The exclusion in Article 1.1 of applications or documentation
submitted for "customs purposes" demonstrates that import licensing procedures include all
procedures other than those that are for "customs purposes." The footnote to Article 1.1 explains
that licensing procedures include "[t]hose procedures referred to as 'licensing' as well as other
similar administrative procedures."

62. Under the DJAI Requirement, an importer must submit an application for an import, and
obtain an approval, demonstrated by the "exit" status, as a prior condition for import. The
participating agencies determine whether to lodge an observation and thereby withhold approval
for the importation to proceed. There are – undisclosed – bases for the withholding of approvals,
even if the DJAI is filled out appropriately.

63. The DJAI is not for "customs purposes." Argentina's interpretation of "customs purposes"
would swallow any procedure that could be considered import licensing. Argentina looks to the
definition of "customs," in the sense of a governmental agency, which notes that customs services
implement customs laws as well as other laws and regulations. Argentina uses this definition, to
argue that any application or documentation required for the administration of customs laws, or
any "other laws and regulations related to importation, exportation, or the movement or storage of
goods" relates to "customs purposes." Article 1.1 does not relate to what customs, as an agency of
government does, but whether a procedure has a "customs purpose," that is, whether it relates to
a customs law or regulation. A customs agency may enforce aspects of an import licensing
procedure or other measure on behalf of another agency. The question of who enforces a measure
at the border is immaterial to the consideration of whether or not an application or document is
submitted for customs purposes or for obtaining approval to import.

64. Argentina fails to refute the features of the DJAI system which demonstrate that it is used
for purposes other than "customs purposes." That is, Argentina maintains separate customs
procedures; AFIP, the only agency participating which has explained the reasons an observation
may be lodged, has only listed tax reasons; and the other agencies participating in the DJAI
system do not have customs administration responsibilities.

65. For these reasons, the DJAI Requirement is an import licensing procedure subject to the
disciplines in the Import Licensing Agreement. Furt her, the DJAI Requirement is inconsistent with
several provisions of that agreement, namely Articles 1.4(a), 1.6, 3.2, 3.3, 3.5(f), and 5.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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IV. ORDER OF ANALYSIS

66. Argentina appears to argue that the Import Licensing Agreement is lex specialis in relation
to GATT Article XI:1 (and Article VIII), and therefore that the Panel must consider the provisions of
the Import Licensing Agreement before, and to th e exclusion of, Article XI:1. However, Argentina
is incorrect in its assertion that the Panel is precluded from considering Article XI:1 first. Not only
could the Panel reach the claim under GATT 1994 even if it starts its analysis with the Import
Licensing Agreement, we consider and respectfully request that the Panel should start its analysis
with the GATT 1994. The logical relationship between Article XI:1 and Article 3.2 indicates that it is
appropriate for the Panel to start with Article XI:1.

67. The DJAI Requirement is not so much as a se t of procedures imposing import licensing than
as a restriction on imports imposed through import licensing. As a result, the Import Licensing
Agreement is not the more specific agreement in relation to the claims at issue. Rather, Article XI
more specifically and in detail deals with the matter raised in this dispute. In Turkey – Rice , the
panel began "its analysis of the substantive content of the measure," noting that "[i]f the Panel
finds that the measure at issue is in breach of substantive obligations under either Article XI:1 of
the GATT 1994 or Article 4.2 of the Agreement on Agriculture, then the question of how the
measure has been administered by Turkey becomes irrelevant."

68. Implicit in the Import Licensing Agreement is that WTO-compatible non-automatic import
licensing measures are adopted to secure complia nce with other measures. The Import Licensing
Agreement assumes that there is an underlying meas ure or restriction, and does not question the
WTO compatibility of that measure or restriction. It is thus logical for the Panel to start its inquiry
under Article XI:1 to determine whether (1) there is a restriction and (2) what is its content. If the
Panel starts with an Article XI:1 analysis, it will find that the entire DJAI Requirement is
inconsistent with Argentina's WTO commitments.

69. Argentina's conclusion that there is "no claim under Article XI" if the Import Licensing
Agreement is examined first is incorrect. Argentina's argument rests on a faulty premise: simply
because a measure is examined first under one agreement because it appears more specific, does
not mean that the measure cannot be examined under the less specific agreement.

70. The Appellate Body has observed that "[a]s a general principle, panels are free to structure
the order of their analysis as they see fit. In so doing, panels may find it useful to take account of
the manner in which a claim is presented to them by a complaining Member." The Panel should
consider the logical relationship between Articl e XI:1 of the GATT 1994 and the Import Licensing
Agreement; this assessment will lead to the conclusion that the Panel should start its inquiry under
Article XI of the GATT.

V.
 THE UNITED STATES HAS ESTABLISHED A PRIMA FACIE CASE THAT ARGENTINA HAS
ACTED INCONSISTENTLY WITH ARTICLE X:3(A) OF THE GATT 1994

71. Argentina has failed to administer in a reasonable or uniform manner the DJAI system –
which applies to all imports and importers – is a law, regulation or administrative ruling of general
application that pertains to requirements, restrictions or prohibitions on imports and that has been
made effective by Argentina since early 2012. Company affidavits and other evidence also reflect
the unreasonable and non-uniform administration of the DJAI system. Argentine officials fail to
follow domestic legal requirements; fail to explain the reasons for "observations" or delays; fail to
provide effective contact points; and fail to administer the system in a consistent, predictable or
reasonable manner – with wide variations in delays and the ultimate disposition of applications.
This lack of uniformity occurs with respect to particular importers, and more broadly as well.
Argentine officials also exercise their discretion by arbitrarily altering and adding to the demands
they make of importers to secure release of an "observed" DJAI application, even after the
importer has taken steps to meet the authorities' original demands. This evidence typifies
administration that is neither reasonable nor uniform.

VI.
 THE RTRRS ARE INCONSISTENT WITH ARTICLES XI:1 AND X:1 OF THE GATT 1994

72. The evidence related to the RTRRs demonstrates that Argentina imposes this measure on a
widespread basis across sectors of importers. Argentina requires compliance with the RTRRs as a
condition for importation, either through the DJAI or another mechanism. This measure serves as
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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a "restriction" on imports because goods may only be imported to the extent that the importer is
able to comply with the RTRRs. For that reason, the RTRRs are inconsistent with Article XI:1 of the
GATT 1994. Likewise, WTO Members and traders woul d search Argentine legal sources in vain for
any publication of the RTRRs consistent with GATT Article X:1. Despite the evidence found
throughout hundreds of exhibits that Argentina is, in fact, imposing such RTRRs on importers,
Argentina has failed to meet GATT Article X:1 publication obligations.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX B-4
SECOND PART OF THE EXECUTIVE SUMMARY
OF THE ARGUMENTS OF THE UNITED STATES
SECOND WRITTEN SUBMISSION

1. The United States has challenged two restrictions – the advance import affidavit ("DJAI")
Requirement and the Restrictive Trade-Related Re quirements ("RTRRs"). The DJAI Requirement is
a discretionary, non-automatic import licensing procedure, and Argentine government officials (in
particular the Secretaría de Comercio Interior or "SCI") have the ability to withhold approvals of
applications for virtually any reason. With respect to the RTRRs measure, the United States has
demonstrated a prima facie case as to its existence and inconsistency with Articles XI:1 and X:1,
which Argentina has failed to rebut.

I. THE DJAI REQUIREMENT IS INCONSISTENT WITH ARTICLE XI:1 OF THE GATT 1994

A. THE
 DJAI REQUIREMENT IS A RESTRICTION UNDER ARTICLE XI:1 OF THE
GATT 1994 AND IS INCONSISTENT WITH THAT PROVISION

2. The DJAI Requirement is a non-automatic licensing system that operates as an import
restriction; it allows officials to deny a license for discretionary reasons. Extensive evidence shows
that, in fact, Argentine officials use this discretion to enforce the RTRRs.

3. Argentina appears to argue that the DJAI Requirement is not discretionary because "the
basis on which a reviewing agency would consider a DJAI [application]" … "will depend upon the
customs-related laws and regulations that it and other intervening agencies administer." Argentina
has no factual basis for this assertion; none of the laws and regulations cited by Argentina contain
criteria applicable to DJAI applications, the reasons an observation may be placed, or what further
information or action may be needed. Argentina also argues that Article XI:1 cannot apply
generally to non-automatic discretionary import licensing because if this is so, any time an
importer fails to provide customs documentation, a Member denying importation will have violated
Article XI:1. This argument is a non sequitor. Under the DJAI system, the denial is not conditioned
on a failure to provide customs documentation. Even if an importer submits all required
information, the application may be denied.

4. Article XI:1 applies to all restrictions, whether characterized as "procedural" or
"substantive." Nothing in the text requires an artificial distinction between "procedural" and
"substantive" measures, nor provides for the exclusion of measures characterized as "procedural."
Article XI:1 prohibits "prohibitions or restrictions other than duties, taxes or other charges,"
however made effective. The DJAI Requirement is not merely "procedural;" it is a restriction
because importers cannot import unless and until they receive approval, which can be withheld for
undisclosed reasons. This constitutes a discretionary, non-automatic licensing regime. Whether the
DJAI Requirement is "substantive" or "procedural," it is a restriction.

5. Contrary to Argentina's assertions, the India – Quantitative Restrictions panel correctly
explained that discretionary import licensing may be used where one of the exceptions to Article XI
applies. If an exception applies, a Member may apply discretionary import licensing procedures.
Argentina argues that the panel should have considered the licensing measure under Article 3.2 of
the Import Licensing Agreement, instead of Article XI:1. The Import Licensing Agreement
disciplines the procedural aspects of licensing and not whether a restriction imposed by import
licensing is consistent with the GATT 1994 under Article XI:1. A discretionary, non-automatic
import licensing requirement is a restriction under Article XI:1 and prohibited under that provision.
If another provision exempts the requirement, then the procedures must comply with the Import
Licensing Agreement. As a result, it is appropriate for a panel to begin its analysis of a non-
automatic import licensing requirement with Article XI:1.

6. The Import Licensing Agreement does not support the proposition that "procedural" aspects
of a licensing regime are outside the scope of Article XI:1. Procedural features of an import
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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licensing regime may be inconsistent with both Article XI:1 as well as the Import Licensing
Agreement, which provides additional obligati ons for procedures. The DJAI Requirement is
inconsistent with Article XI:1 both because it is a non-automatic, discretionary import licensing
procedure and because the procedures render it restrictive.

7. The Korea – Beef and China – Raw Materials panel reports are consistent with a correct
understanding of Article XI:1 and India – Quantitative Restrictions . In all three disputes, the
panels recognized that discretionary import licensing systems that do not implement any
restrictions are inconsistent with Article XI:1. The China – Raw Materials panel observed that
discretionary import licensing procedures "would not meet the test … to be permissible under
Article XI:1 … if a licensing system is designed su ch that a licensing agency has discretion to grant
or deny a licence based on unspecified criteria." There is no underlying measure implemented
through the DJAI Requirement. Further, decisi ons to grant or deny approvals are based on
unspecified criteria.

8. Argentina advances a "subsidiary" or "alternative" argument that Article XI:1 should apply to
import formalities or other import procedures only to the extent that (1) "they limit the quantity or
amount of imports to a material degree that is separate and independent of the trade-restrictive
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 with a formality or requirement of this nature." Argentina's formulation is
aimed at different factual situation than the one present in this dispute. To the extent a licensing
procedure implements another identifiable rest riction, that procedure should be examined
according to the same justification as the underlying WTO-consistent restriction it implements.
But, there is no WTO-consistent underlying restriction implemented by the DJAI Requirement.

9. Argentina argues that co-complainants are required to demonstrate that the DJAI
Requirement has a limiting effect that is separate from the RTRRs , and that the U.S. arguments
are flawed because some of the same evidence pr esented by the complainants relates to both the
DJAI Requirement and RTRRs. Neither of these arguments have merit. The DJAI Requirement is a
non-automatic, discretionary licensing measure. Argentine authorities may deny permission to
import until an importer complies with RTRRs or for no reason at all. Similarly, RTRRs may be
enforced by the withholding of permission to import, whether through the Certificado de
Importacion ("CI") Requirement, the DJAI Requirement, or another measure. Because the two
measures are distinct, the body of evidence with respect to the two is also distinct and only
overlaps as it relates to both. It is false for Argentina to state that the evidence related to the two
measures is "indistinguishable" or the "same," and Argentina has not explained what the relevance
would be if that were the case. Further, the claims under Article XI:1 with respect to the measures
are distinguished.

B. ARTICLE XI:1
 DOES NOT REQUIRE A DEMONSTRATION OF "TRADE EFFECTS"

10. Argentina relies on the Appellate Body report in China – Raw Materials to support its
argument that a party asserting a violation of Article XI:1 must demonstrate "quantitative" or
"trade" effects on imports. This reliance is misplaced. The Appellate Body did not address "trade
effects." Argentina ignores the Appellate Body's elaboration on "restriction" in subsequent reports
which confirms that there is no requirement to show trade effects. The term "quantitative
restrictions" does not appear in the text of Article XI:1. The carve-out of "duties, taxes, or other
charges" from "prohibitions or restrictions" demonstrates that Article XI is not limited to
"quantitative restrictions" in the strict sense of the term. Similarly, there is no basis in the text to
conclude that the restrictions must have "quantitative effects." The word "effects" does not
appear.

11. The Appellate Body and past panels have found that trade effects are not a necessary or
sufficient factor in determining whether a measure is inconsistent with WTO obligations, including
those under Article XI. Argentina points to the statement by the Appellate Body in China – Raw
Materials. The Appellate Body did not state that such an "effect" must be demonstrated through
trade data. No panel which has endorsed the term "limiting effect" to describe "restriction"
concluded that trade effects are part of an Arti cle XI:1 analysis. The Appellate Body considered
"trade-restrictiveness" in US – COOL and US – Tuna II (Mexico) , and concluded that trade effects
were not part of the analysis. This is despite the fact that, in US – Tuna II (Mexico) , the Appellate
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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Body relied on its consideration of "restriction" in China – Raw Materials, and in turn, in US – COOL
referred to the US – Tuna II (Mexico) discussion.

12. The enforceability of commitments in the WTO agreements does not turn on whether a
Member's current trade is directly impacted. Quantitative data may or may not demonstrate trade
effects, but that does not excuse a Member's maintenance of a measure that is inconsistent with
the WTO Agreement.

C. ARTICLE VIII
 DOES NOT LIMIT THE APPLICATION OF ARTICLE XI:1

13. Argentina puts forth a flawed interpretation of Article XI:1 in arguing that Article VIII and
Article XI:1 of the GATT 1994 are "mutually exclusive" in their application. Article XI:1 is broad in
its scope, and nothing in Article VIII limits, or crea tes an exception to, Article XI:1. The U.S. claim
under Article XI:1 does not relate to the "formalities" connected to the DJAI requirement, but
rather with the fact that import transactions cannot be completed until an importer receives
approval, which may be withheld for nontransparent, discretionary reasons. As a result, the
question of whether or not "formalities" are excluded from the scope of Article XI:1 is not directly
relevant.

14. Article XI:1 relates to any prohibitions or restrictions on imports and carves out only
"duties, taxes or other charges." Article XI:1 is definitive; it states that " no prohibitions or
restrictions … shall be maintained ." Nothing in the text exempts any overlapping coverage of
Article VIII. It is not the case that "formalities " are "permitted" by Article VIII. Aspirational-type
language, such as the Article VIII language, does not permit or prohibit anything. Argentina's
reading of Articles VIII and XI:1 is inconsistent with principles of treaty interpretation and fails to
give effect to the definitive language in Article XI:1; that " no prohibitions or restrictions other than
duties, taxes or other charges," may be maintained.

15. Formalities may or may not restrict trade; to the extent they do, Article XI:1 disciplines their
use. There is nothing inconsistent with the simultaneous application of the mandatory
requirements in Article XI:1 and the aspirational language in Article VIII. Argentina essentially
argues that Article VIII creates an exception to Article XI, even though the text of neither article
describes such an exception. Further, Argentina's logic does not make sense when applied to other
provisions of Article VIII. Article VIII:1(b) states that Members "recognize the need for reducing
the number and diversity of fees and charges." Under Argentina's theory, this language would
create an exception to Article XI:1 for "fees and charges." If that were the case, the carve-out for
"charges" would be surplusage because they are already excluded in Article XI:1.

16. Contrary to Argentina's assertions, the Import Licensing Agreement is not "in essence, an
elaboration upon Article VIII in the specific contex t of import licensing procedures." The preamble
to the Import Licensing Agreement recognizes "p rovisions," plural, "of GATT 1994 as they apply to
import licensing procedures" and states that Members desire "to ensure that import licensing
procedures are not utilized in a manner contrary to the principles and obligations of GATT 1994."
Thus by its terms, the Import Licensing Agreem ent acknowledges that various provisions of the
GATT 1994 relate to import licensing procedures, not just Article VIII.

17. Argentina cites the panel in China – Raw Materials . However, that panel considered
Article VIII:1(a), with respect to "fees and charges," and not formalities. So, it is unclear that the
discussion in China – Raw Materials is applicable. That panel stated that "it seems appropriate to
construe Article VIII as regulating something di fferent from … GATT Article XI:1." However, the
panel did not state that the provisions were mutually exclusive; but concluded that the scope of
Article VIII:1(a) was narrower than Article XI:1.

D. THE
 PRINCIPLE OF LEX SPECIALIS DOES NOT BAR THE EVALUATION OF THE DJAI
REQUIREMENT UNDER ARTICLE XI OF THE GATT 1994

18. Argentina misapplies the principle of lex specialis in arguing that it bars the evaluation of the
DJAI Requirement under Article XI. The principle of lex specialis concerns situations where there is
a conflict between two provisions such that they cannot be applied simultaneously. There is no
conflict between Article XI:1 of the GATT 1994 and Article 3.2 of the Import Licensing Agreement.
In this dispute, considering the logical relationship between Article XI:1 and Article 3.2, the
United States submits that it would be appropriate for the Panel to first consider claims under
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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Article XI:1 before turning to Article 3.2. The United States is challenging the DJAI Requirement as
a restriction on imports imposed through import licensing. As a result, Article XI more specifically
and in detail deals with the nature of the matter raised in this dispute.

II. THE
 DJAI REQUIREMENT IS AN IMPORT LICENSING PROCEDURE SUBJECT TO THE
IMPORT LICENSING AGREEMENT

19. Argentina does not dispute the essential ch aracteristics of the DJAI Requirement, which
demonstrate that the requirement it is an import licensing procedure. Rather, Argentina presents
untenable l arguments and attempts to shield the DJAI Requirement from scrutiny under the
Import Licensing Agreement. Argentina's reliance on the SAFE Framework is misplaced; that
instrument does not create any exceptions to the WTO agreements, and the DJAI Requirement
does not share the features of a procedure implemented according to the SAFE Framework.

A. THE
 DJAI REQUIREMENT IS AN IMPORT LICENSING PROCEDURE

20. The DJAI is an import licensing procedure because it (a) requires the "submission of an
application or other documentation" (b) as a "prior condition for importation." An importer must
submit an application for each import through the DJAI system and wait 15 days to determine
whether an approval is granted ("exit" status) or withheld ("observed" st atus). If approval is
withheld, the importer must approach the relevant agency and submit further, unspecified,
information or documentation in the hope of obtaining the "exit" status.

21. Complainants are not required to "demonstrate that the DJAI procedure is ‘used for the
operation of import licensing regimes.'" Article 1.1 makes clear that "import licensing" is a
procedure, and an "import licensing regime" is one "requiring the submission of an application or
other documentation … as a prior condition for importation." The DJAI procedures are "used for the
operation" of the DJAI regime, or system, as a whole, whereby Argentine agencies can review and
either grant or block DJAI applications required as a prior condition of importation.

22. Not all applications or documentation submitted as a prior condition for importation are for
import licensing. The Import Licensing Agreement explicitly carves out those required for "customs
purposes." The DJAI is not for customs purposes. Argentina is not correct that additional
(unspecified) application and documentation requirem ents are excluded. Such an interpretation of
Article 1.1 is contrary to the text, which includes one carve-out for customs purposes. The
examples of documents Argentina alleges would be covered by complainants' "overly expansive"
interpretation of import licensing are not at issue in this dispute.

B. THE
 DJAI REQUIREMENT IS NOT FOR "CUSTOMS PURPOSES"

23. Argentina advocates for an overly broad interpretation of those applications and
documentation which are for "customs purposes" and thereby excluded from the definition of
import licensing procedures at Article 1.1 of the Import Licensing Agreement. Argentina argues
that any application or document required for the administration of customs laws, or " any other
laws and regulations related to importation, expo rtation, or the movement or storage of goods " is
for "customs purposes." This interpretation contradicts the plain meaning of Article 1.1.
Argentina's definition would prevent the applicat ion of the Import Licensing Agreement to any
procedures whatsoever, as by definition, import licensing laws and regulations are "related to
importation." "Customs purposes" relates to the implementation of a customs law or regulation.
The ordinary meaning of the word "customs" in this context is "duty levied by a government on
imports." Thus, "customs purposes" relates to the accurate identification, classification, valuation,
determination of origin and ultimately levying of duties.

24. The DJAI Requirement is not maintained for customs purposes. First, Argentine agencies
with no customs purpose whatsoever participate in the DJAI system and may place observations,
withholding permission to import. Second, at the stage at which the DJAI submission must be
made – prior to the issuance of a purchase order, information that is needed for "customs
purposes" to determine classification, origin and valuation of an item is not even available.
Third, Argentina maintains separate customs procedures which require the submission of more
detailed data much later in the importation proce ss. Fourth, the only guidance published by AFIP
states that it intervenes for internal tax administration purposes, and does not list any "customs
risks" of the type it purports to monitor under the SAFE Framework. Even if AFIP does make
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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"customs control" observations, the vast majority of reasons that AFIP, let alone any other agency,
places an observation is for non-customs reasons. Finally, the DJAI Requirement is not a formality
implemented in accordance with the SAFE Framework.

C. THE
 DJAI REQUIREMENT IS NOT IMPLEMENTED ACCORDING TO THE SAFE
FRAMEWORK

25. Argentina argues that the DJAI Requirement is not a license requirement, but is instead "an
advance electronic information customs formality specifically designed in accordance with the SAFE
Framework." Argentina's arguments are legally irrelevant and factually incorrect. First, Argentina's
arguments cannot justify a WTO-inconsistent measure, and so they do not have any direct legal
relevance to the Panel's evaluation. Second, Argentina's arguments are factually incorrect,
because the DJAI is not "specifically designed in accordance with the SAFE Framework." The DJAI
system has nothing to do with a system of border security.

26. The DJAI Requirement does not "allow AFIP to determine, in advance of the arrival of the
goods, whether a particular consignment should be targeted for physical inspection, non-intrusive
inspection methods, or not be screened at all." The DJAI system is designed and operates in a
manner that is disconnected from, and possibly de trimental to, the management of supply chain
security risk in the global trading system or othe r import cargo risks. First, the DJAI system lacks
any substantive basis upon which to manage supply chain security risk or to identify high-risk
consignments. It contains no criteria relating to supply chain security risk; it does not reflect the
standards set forth under the four "core components" the SAFE Framework; and it does not specify
other criteria for identifying other "risks" asso ciated with imported cargo shipments. Second,
nothing in Argentina's response explains why or how the DJAI Requirement (and all of its trade
restrictive and non-transparent features) is necessary or relevant to ascertaining risk on imports
from other countries. Third, the DJAI system requires the submission and approval of an
application before an importer can place an order for, or secure foreign exchange financing for, the
goods – a point in time at which insufficient information would exist to allow a customs authority
to "identify high-risk consignments" or to select "particular consignment[s for]… physical
inspection, [or] non-intrusive inspection methods."

III. THE
 UNITED STATES HAS DEMONSTRATED THAT THE DJAI REQUIREMENT IS
INCONSISTENT WITH ARTICLE 3.2 OF THE IMPORT LICENSING AGREEMENT

27. Argentina argues that both Article XI:1 of the GATT 1994 and Article 3.2 of the Import
Licensing Agreement cannot apply to the DJAI Requirement. Further, Argentina argues that the
United States must show that the DJAI Requirement is more trade-restrictive than the RTRRs in
order to prevail under Article 3.2. Both provisions apply to non-automatic import licenses such as
the DJAI requirement, and the principle of lex specialis does not prevent either claim.

28. The DJAI Requirement and the RTRRs are sepa rate measures, each of which restricts the
importation of goods. The DJAI Requirement is a discretionary, non-automatic import licensing
requirement that serves as a restriction because Argentine officials may withhold permission for
virtually any reason whatsoever, including compliance with the RTRRs. The RTRRs impose
requirements that restrict the ability to import goods, and are enforced through the withholding of
permission to import through the DJAI system, and previously the CIs. Because the RTRRs and
DJAI Requirement are separate, and because a WTO-inconsistent measure cannot justify the
restrictions imposed by an import licensing measure, the United States is not required to show
that the DJAI Requirement imposes trade-restrictive effects additional to those caused by the
RTRRs. Because the DJAI Requirement does not impo se an underlying "restriction," it necessarily
has "additional" "trade-restrictive" or "trade-distortive" effects inconsistent with Article 3.2 of the
Import Licensing Agreement.

IV. THE
 DJAI REQUIREMENT IS INCONSISTENT WITH ARTICLE X:3(A) OF THE
GATT 1994

29. Argentina has failed to rebut the evidence demonstrating that it has not administered the
DJAI Requirement in a reasonable, uniform manner, consistent with GATT 1994 Article X:3(a).
Argentina has failed to respond to the evidence showing, among other things, that Argentine
authorities act without regard to legal authorities and treat similarly situated importers with great
variance in their administration of the DJAI system as detailed in Exhibit US-1.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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V. THE UNITED STATES HAS ESTABLISHED A PRIMA FACIE CASE OF THE EXISTENCE OF
THE RTRRS MEASURE

30. There is no separate and higher burden on a party that alleges the existence of an unwritten
measure. The burden is on complainants to prov ide sufficient evidence the RTRRs measure exists;
the United States and co-complainants have done so.

31. Argentina's reliance on the Appellate Body report in US – Zeroing (EC) and the panel report
in EC – Large Civil Aircraft to support a higher standard of proof for unwritten measures is
misplaced. The evidence required in US – Zeroing (EC) must be considered in the context of that
dispute. That case concerned a "rule or norm" relating to how a particular law or regulation is
applied. Similarly, the panel in EC– Large Civil Aircraft examined the "existence of an alleged
unwritten measure with ‘normative value.'" It is in this context that the panel and Appellate Body
stated that a "high threshold" applies. In this dispute, the measure being challenged is not a
"norm or rule", but a measure in the form of a decision by Argentina to impose the RTRRs. The
facts are similar to those in EC – Biotech. The panel observed that "[i]t is … necessary to examine
in detail whether the evidence supports the Complaining Parties' assertion." In EC – Biotech , the
panel considered the evidence and concluded it was sufficient to establish the existence of the
moratorium.

32. In some cases, the only evidence necessary to establish the existence of a measure is a
written instrument that promulgates it, and in others additional evidence may be required.
Complainants have submitted a large volume of evidence supporting the existence of the RTRRs
measure. However, the fact that a larger volume of evidence is often involved where a
complainant challenges an unwritten measure does not mean that a higher standard of proof
applies. The Panel must examine this evidence and evaluate whether it is sufficient to meet the
complainants' burden. Considered in its totality, this evidence meets this standard.

33. Argentina argues that complainants have failed to establish a prima facie case because they
have not demonstrated the "precise content of the alleged ‘overarching' RTRR measure." Argentina
bases this argument on conclusory statements ab out the evidence submitted in this dispute and
the creation of non-existent evidentiary hurdles. The RTRR measure is the decision by high-level
Argentine officials to require commitments of importers as a prior condition for permission to
import goods. The RTRR measure is demonstrated by statements of Argentine officials describing
the measure and a large number of sources substantiating the application of the measure across
sectors and product groups. The evidence amply demonstrates its content.

34. Argentina does not discuss individual pieces of evidence, claiming generally that sources
published by La Nación and Clarín and related companies are less probative because of past
actions and reporting. This evidence makes up only a small portion of the evidence submitted, and
Argentina has not explained how past events impact the probity of the information. Argentina has
not presented any grounds for the Panel to disregard any of the evidence. As part of its analysis of
the factual issues, the Panel will accord probative weight to the various pieces of evidence and
determine whether complainants have established their prima facie case.

35. Argentina obscures the questions before this Panel when it argues that the U.S. case is
deficient because it has not "demonstrated whether and to what extent the precise content of such
overarching [RTRR] measure is any different than the content of the various unwritten alleged
requirements that supposedly comprise it." Argentina places significance on the term
"overarching," but the United States cannot discern what that significance may be, how it relates
the U.S. evidentiary burden, or why it is necessary to demonstrate a "difference" between the
RTRR measure and the five types of requirements.

36. Argentina further argues that complainants have failed to demonstrate that the RTRR
measure "has general and prospective application." Argentina again misplaces its reliance on the
evaluation of the Appellate Body in US – Zeroing (EC) and the Panel in EC – Large Civil Aircraft .
Even if the United States did need to demonstr ate "general and prospective application," this
element would be evidenced by statements of Ar gentine officials and the repeated imposition
across sectors of the RTRRs up to, and after, the establishment of this Panel. The United States
has satisfied its burden of proof as to the ex istence of the RTRRs measure, and Argentina has
offered no facts or legal arguments which rebut the prima facie case.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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VI. THE RTRRS MEASURE IS INCONSISTENT WITH ARTICLES X:1 AND XI:1

37. Argentina's RTRRs are a distinct measure that causes trade restrictions, and results in a
separate breach of Article XI:1. The imposition of RTRRs constitutes a "restriction" under
Article XI:1 because it serves as a "limitation" on imports. In particular, Argentina limits the
importation of goods on the importer's ability to export goods, make investments in Argentina,
produce or source locally, limit the volume or value of imports, or repatriate profits.

38. Argentina has failed to fulfill the Article X:1 obligation to publish "promptly" and "in such a
manner as to enable governments and traders to become acquainted with them," the "laws,
regulations, judicial decisions and administrative rulings of general application" "pertaining to …
requirements, restrictions, or prohibitions on imports …" that a Member has "made effective." The
RTRRs, which pertain to "requirement, restriction or prohibition on imports …," constitute
"regulations" or "administrative rulings of general application." The evidence demonstrates that
Argentine officials widely apply the RTRRs to DJAI applicants and their prospective importations
and also makes clear that that these unpublished rules are "of general application." The RTRRs
have not been "published" in a manner that would enable governments and traders to become
familiar with them. Argentine authorities made the RTRRs "effective" from at least 2010. To date,
the RTRRs remain unpublished. An extended period of delay in publishing a measure does not
meet the requirement of "prompt" publication.

SECOND OPENING STATEMENT

I. THE DJAI REQUIREMENT IS INCONSISTENT WITH ARTICLE XI:1 OF THE GATT 1994

39. Argentina mischaracterizes the U.S. positions and raises irrelevant matters. Argentina
implies that complainants have accepted Argentina's categorization of measures as "procedural" or
"substantive" in nature. The DJAI Requirement is not merely procedural but rather is itself a
restriction on the importation of goods. Moreover, there is no basis for the procedural-substantive
distinction. Further, there are no rules under the DJAI Requirement or elsewhere that limit the
discretion of Argentine officials to restrict imports through the DJAI system. Argentina has pointed
to no criteria for the evaluation of a DJAI application, potential reasons for denial, or requirements
for resolution of an observation in Argentina's laws. Argentina enforces the RTRRs measure by
withholding approvals in the DJAI system, which demonstrates the discretionary nature of the
licensing requirement. However, this does not mean that the two measures are the same. DJAI
approvals may be withheld for virtually any reason, or none at all. And, compliance with RTRRs
may be a prior condition for approval of other import permissions.

A. The DJAI Requirement is Subject to Article XI of the GATT

40. The U.S. claim under Article XI:1 does not relate to the "formalities" connected to the DJAI
requirement, but to the fact that import tran sactions cannot be completed unless and until an
importer receives approval, which may be withheld for non-transparent, discretionary reasons.
Argentina argues that, under the U.S. interpretation of Article X1:1, " any burden on trade" would
be a "restriction" under Article XI:1. That is not the U.S. position. The U.S. claims do not relate to
"any burden," but rather the DJAI Requirement.

41. Argentina cites negotiating text of the trade fa cilitation agreement in support of its position
that "formalities" are excepted from Article XI. Argentina has not explained how the trade
facilitation agreement has any interpretive relevance in this dispute. Argentina's approach ignores
the interaction of the provisions of the GATT 19 94. Article XI is independent from the trade
facilitation text. The trade facilitation provision does not speak to whether a measure amounts to a
restriction within the meaning of Article XI. In addition, Argentina ignores the fact that Members
can and do impose restrictions that are inconsistent with Article XI:1 but that are excepted from
that provision under Article XX or another provision. Argentina's argument that Article VIII creates
an exception to Article XI:1 for "formalities" is without merit.

B. Article XI:1 Does Not Require a Demonstration of "Trade Effects"

42. Argentina reiterates its novel theory that Article XI:1 requires a statistical demonstration of
quantifiable trade effects to show that a measure is inconsistent with that provision. The ordinary
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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meaning of Article XI:1 does not support Argentina's theory. Article XI:1 states that no …
restrictions … shall be maintained . As a number of WTO panels have found, this obligation is not
limited to quantitative restrictions or those with actual trade effects.

43. Article XI:1 does not contain any indication that it is limited to restrictions that can be
demonstrated through quantifiable effects. Ar ticle XI:2(b) carves out from Article XI:1
"prohibitions or restrictions necessary to the application of standards or regulations … ."
"Standards" or "regulations" can serve as "restrictions" inconsistent with Article XI:1. But,
standards and regulations are not "quantitative" or "quantifiable." The title of Article XI does not
support Argentina's position, and Argentina places far too much interpretive weight on the title. In
each dispute cited by Argentina, the Appella te Body or panel noted that the title was consistent
with the interpretation of the relevant article; the title did not imbue the article with a new and
different meaning.

44. Within the context of Article XI:1, including the title, a restriction is not just any burden on
an import transaction. Many documentation requirements may burden trade transactions, but they
do not all limit or restrict. The DJAI Requirement does limit or restrict trade; even where all
information is submitted, permission may be withheld. This interpretation is consistent with the
Appellate Body's consideration of "restriction" in China – Raw Materials and subsequent disputes.
The Appellate Body said in China – Raw Materials that Article XI covers prohibitions and
restrictions that have a limiting effect. The logical leap, from China – Raw Materials , to the
conclusion that a complainant must demonstrate trade effects contradicts the findings of the
Appellate Body and past panels that the enforceability of commitments in the WTO agreements
does not turn on whether a Member's current trade is directly impacted.

45. Argentina has put forward Exhibit ARG-65 to support its argument that the DJAI
Requirement is not having a restrictive effect on trade. This evidence is not relevant to resolving
the legal issue, but in any event, the exhibit is flawed and fails to demonstrate what Argentina
contends. First, the analysis fails to include an adequate assessment of the impact of the DJAI
Requirement. Second, the report examines th e relationship between imports and Argentine
economic growth using a simple model specification which does not adequately control for other
variables that could impact imports. Third, aggregate trade data is not useful for understanding
how trade flows across sectors and time are impacted. Finally, Argentina's approach cannot be
expected to fully demonstrate a credible impact of the DJAI Requirement on imports.

C. The Evidence Presented by the United States Establishes a Prima Facie Case that
the DJAI Requirement is Inconsistent with Article XI:1

46. The United States has presented more than sufficient evidence to establish a prima facie
case that the DJAI Requirement is inconsistent with Article XI:1. Argentina mischaracterizes this
dispute when it states that the "principal eviden ce relied on by the complainants" to support the
claims related to the DJAI Requirement are th e surveys conducted by the U.S. Chamber of
Commerce and the Government of Japan. The surv eys are one element of the extensive evidence
submitted by the United States. The primary evidence consists of the legal instruments
establishing the DJAI Requirement, and related guidance issued by the Argentine government.
This evidence alone demonstrates that the DJAI Requirement is a discretionary, non-automatic
import licensing requirement inconsistent with Article XI:1 of the GATT 1994.

47. The U.S. Chamber of Commerce survey is not scientific in nature; it is an informal voluntary
survey. That said, it includes responses from 45 companies across a variety of sectors which,
together, applied for a minimum of 2,650 DJAI a pprovals. The information contained therein is
probative of the experience of U.S. companie s. The United States has submitted extensive
additional evidence, which is consistent and mutu ally supportive and confirms that Argentina does
use the DJAI Requirement to restrict imports.

III. THE DJAI REQUIREMENT IS INCONS ISTENT WITH THE IMPORT LICENSING
AGREEMENT

48. Argentina speculates that the United States has "distanced" itself from its claims under the
Import Licensing Agreement. The reason that th e second U.S. submission does not contain new
material on these claims is that Argentina has failed to respond to the U.S. prima facie case. The
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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United States is interested in receiving findings on Articles 1.4(a), 1.6, 3.3, 3.5(f), and 5 of the
Import Licensing Agreement, in addition to Article 3.2.

A. The DJAI Requirement Is an Import Licensing Procedure

49. Argentina fails to present a viable argument for why the Import Licensing Agreement does
not apply to the DJAI Requirement. Argentina argues that import licensing is an administrative
procedure "used for the operation of import licensing regimes" – which is "understood as the
administration of quantitative restrictions or other measures similarly aimed at regulating the
importation of goods." Argentina presents no textual support for this position. Even under
Argentina's proposed definition, the DJAI Requirement would be subject to the Import Licensing
Agreement. Argentina also argues that the Appellate Body report in EC – Bananas III does not
support the interpretation of Article 1.1 as expl ained by the United States. Argentina's logic is
flawed. The Appellate Body "note[d]" that Articles 3.2 and 3.3 of the Import Licensing Agreement
make clear that the Agreement is not limited to quantitative restrictions but relates to other
"restrictions." This finding supports the conclusion that an import licensing procedure is one that
(a) requires "the submission of an application" (b) as "a prior condition for importation."

B. The DJAI Procedure Is not for Customs Purposes

50. Argentina advocates for an overly broad interpretation of those applications and
documentation which are for "customs purposes." If accepted, this definition would create an
exception that would swallow the rule – rendering the entire Import Licensing Agreement
meaningless. The DJAI Requirement is not maintained for "customs purposes," as it is does not
relate to the implementation of a customs law or regulation.

51. Argentina's second written submission contains assertions as to the reasons the various
agencies participate in the DJAI system. These assertions are unsupported by any legal instrument
or other documentation that would limit the review of the participating agencies to the reasons
cited. Moreover, Argentina only purports to prov ide examples of the reasons agencies participate
in the DJAI system. Argentina's unsupported assertions – if credited – would support the
conclusion that agencies' participation in the DJAI system goes well beyond "customs purposes."
Moreover, nowhere does Argentina indicate how the information collected by agencies is evaluated
or for what reasons a participating agency may make an observation.

52. Finally, the World Customs Organization ("WCO") Secretariat's letter helps to confirm that
the DJAI Requirement does not implement the SAFE Framework. The SAFE Framework "focuses on
the security risk related to terrorism;" "aims to facilitate – as much as possible – legitimate trade;"
"contains very specific time limits for the submission of advance cargo data to Customs;" and sets
out "data elements strictly limited to the maximum that should be required." The DJAI
Requirement does not focus on security risks related to terrorism; it does not facilitate, but rather
impedes trade. "None" of the purported reasons th at agencies participate in the DJAI system are
"covered by the SAFE Framework as interpreted by the (majority of) Members."

IV.
 THE DJAI REQUIREMENT IS INCONSISTENT WITH ARTICLE X OF THE GATT 1994

53. As regards Article X, Argentina argues with respect to the DJAI Requirement that
complainants must meet novel proof standards that have no basis in the GATT 1994. Argentina
asserts that complainants must demonstrate that ea ch of the thousands of individual instances in
which the DJAI Requirement has been applied to an import transaction constitutes a separate
measure of "general application." Argentina's proposed legal standard is inconsistent with the
ordinary meaning of Article X:1, which disciplines inter alia "laws, regulations [and] …
administrative rulings of general application" – not their individual instances of application. The
DJAI Requirement is such a measure of general application.

54. Argentina persists in misrepresenting the U.S. claim under GATT Article X:3(a),
characterizing that claim as a challenge to the underlying DJAI Requirement, rather than as a
challenge to the administration of that requirement. This is not correct. The U.S. claim challenges
the unreasonable and non-uniform administration of the DJAI Requirement by (as substantiated in
Exhibit US-1) – not the DJAI Requirement itself. Argentina has not attempted a rebuttal addressed
to the U.S. showing that the DJAI requirement breaches Article X:3(a).
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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V. THE UNITED STATES HAS CARRIED ITS BURDEN TO ESTABLISH THE EXISTENCE OF
THE RTRRS MEASURES

A. The Evidence Presented by Argentina Does Not Rebut Evidence Presented by the
United States

55. Argentina appears to argue that the limited evidence it has submitted demonstrates that
companies are investing in Argentina not because of the need to comply with RTRRs, but because
of favorable "economic opportunities." This argument is flawed. First, Argentina relies on general
statements from corporate officials regarding investment in Argentina. Such explanations do not
refute the claims of the United States. The United States has identified, at Exhibit US-6,
statements by company officials, and from Argentine government sources, which specifically
describe the RTRRs imposed on each company discussed by Argentina. Second, Argentina
overreaches in its characterization of certain public statements. Third, the statements cited by
Argentina must be viewed in context. Corporate officials have an incentive to publicly emphasize
the positive factors for investment in Argentina to avoid retaliatory restrictions on imports. Finally,
the volume of evidence demonstrating the existe nce and operation of the DJAI Requirement and
the RTRRs far outweighs the citations raised by Argentina.

B. There Is no Special "Higher" Burden of Proof Applicable to Unwritten Measures

56. The United States has not characterized th e RTRRs as "a single overarching unwritten
measure whose content consists of various other measures." There is no basis for Argentina's
assertions that the United States must explain how "disparate requirements … come together to
form the ‘overarching measure.'" There is only one measure at issue.

57. There is no special higher burden of pr oof on complainants who allege an unwritten
measure. It is likely that a greater volume of evidence is necessary to demonstrate the existence
of an unwritten measure than a written measure, which in many cases may be demonstrated by a
statute or regulation alone. That 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 presumption of the existence of
that measure.

58. Not all unwritten measures are subject to th e three-element evidentiary standard on which
Argentina bases its argument. Argentina's reliance on the Appellate Body report in US – Zeroing
(EC) and the panel report in EC – Large Civil Aircraft , both of which address "norms or rules," is
misplaced. Argentina cites two additional panel reports in its second written submission, US –
Zeroing (Japan) and Thailand – Cigarettes (Philippines) , both of which also concern "norms or
rules" of administrative application. The United States is not challenging a "norm or rule" that
governs the administrative application of another measure. The facts presented in this dispute are
more analogous to those in EC – Biotech. The panel noted that the relevant question was "whether
the evidence supports the Complaining Parties' assertion." The evidence submitted by the
United States in this dispute meets the EC – Biotech standard and establishes the existence of the
RTRRs measure.

C. The United States Has Submitted Sufficient Evidence to Meet the Burden
Articulated by Argentina

59. Even under the standard articulated by Arge ntina, the United States has submitted more
than enough evidence to establish a prima facie case. The United States has demonstrated: (1)
that the RTRRs measure is attributable to Ar gentina; (2) the precise content of the RTRRs
measure; and (3) that the RTRRs measure has general and prospective application. It is important
to note that, although the Appellate Body has noted that "[p]articular rigour is required" of panels
that examine whether an unwritten "rule or norm" exists, and has proposed the three elements for
determining the existence of a rule or norm where it is alleged to govern the administrative
application of another measure, the Appellate Body has not said that there is a higher evidentiary
burden on the demonstration of a prima facie case. Rather, the "high threshold" is the application
of the three evidentiary elements and a complainant must put "forth sufficient evidence with
respect to each of these elements" i.e., evidence sufficient to establish a prima facie case with
respect to each element.
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60. The evidence in this dispute demonstrates the existence of the RTRRs measure, its
enforcement through the DJAI Requirement, and the fact that both measures are restrictions
within the meaning of Article XI:1. With respect to the first element, Argentina does not even
argue that the measure is not attributable to Argentina. The evidence submitted by the
United States fulfills the second element – it demonstrates the precise content of the RTRRs
measure. Pursuant to the RTRRs 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. This measure has "precise content." The evidence with
respect to the content is summarized at Section III.B of the U.S. first written submission.

61. Argentina argues that the United States mu st satisfy each of the three elements with
respect to each of the five requirements imposed pursuant to the RTRRs measure. However, that
is not the case. In no other dispute has a panel or Appellate Body required a complainant to
demonstrate separately each part of the alleged rule or norm. Argentina claims that the evidence
related to the requirement that importers make or increase investments in Argentina,
incorporate local content into their products, and reduce the volume or value of imports is
insufficient to demonstrate they are part of the RTRRs measure. That is not the case.

62. Finally, the RTRRs measure satisfies the th ird element; it has general and prospective
application. Argentina asserted the complainants have only provided evidence of discrete one-off
actions. However, the statements of Argentine officials indicate that the measure is both general
and prospective, applying broadly to all type s of goods and applying into the future. The
hundreds of additional exhibits provided by complainants demonstrate that the RTRRs measure
applies generally across products and sectors. The prospective application of the RTRRs measure
is further supported by evidence of its repeated and continuing systematic application to
importers. As the Appellate Body observed, evid ence of prospective application "may include
proof of the systematic application of the challenged ‘rule or norm'."

D. The Evidence Submitted by the United Stat es is Sufficient in Light of Prior Disputes
Applying the Standard Advocated for by Argentina

63. The evidence that the United States has su bmitted is, at a minimum, comparable to the
evidence submitted in US – Zeroing (EC) and US – Zeroing (Japan) and far exceeds that which
was submitted in Thailand – Cigarettes (Philippines) and EC– Large Civil Aircraft. Argentina argues
that the evidentiary case of the United States in this dispute is weaker than that in the zeroing
disputes because zeroing was applied in all instances. It also argues that it suffers from the fact
that it is not based on related written procedur es or contracts. Argentina would have the Panel
reward it for flouting its transparency obligations. None of these arguments are persuasive; the
Panel should reject them and should reject Argentina's argument that the United States has not
met its burden in demonstrating the existence of the RTRRs measure.

64. Argentina makes no attempt to rebut complainants' legal claims demonstrating that the
measure is inconsistent with Articles X:1 and XI of the GATT 1994. Accordingly, if the panel finds
that complainants have demonstrated the existenc e of the RTRRs measure, the panel should also
find the measure to be inconsistent with Articles X:1 and XI.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX B-5
FIRST PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
FIRST WRITTEN SUBMISSION

I. FACTUAL BACKGROUND

1. In this dispute, Japan challenges two protec tionist, trade-restrictive measures imposed by
Argentina to stimulate domestic production, localize investment, and keep imports out: the
Declaración Jurada Anticipada de Importación (the "DJAI Requirement") and Argentina's
Restrictive Trade Related Requirements ("RTRR").

2. In order to place a purchase order or initiate a foreign exchange transaction to purchase
foreign goods, importers into Argentina must first electronically submit a DJAI, which six Argentine
government entities then have an opportunity to review. If any of the government entities lodges
a comment ( observación) on the DJAI, then the importer may not proceed with the import
transaction until the entity decides that it is satisfied with the importer's response. There are
practically no legal constraints on the government entities' discretion, and in practice DJAIs often
remain in an "observed" ( observada) status for long periods of time without explanation. As such,
they have a substantial impact on importers' abilities to import their goods into Argentina in a
timely, effective, and cost-efficient manner.
3. The approval of DJAIs is often conditione d on compliance with the RTRR. The RTRR is a
generally applicable measure that conditions the right to import goods upon the importer's
compliance with certain conditions aiming to achieve Argentina's policy of trade-balancing and
import substitution.
4. The existence and operation of the RTRR have been confirmed by the Argentine
government's own statements and official press releases, its communications with industry
associations, numerous press reports, and industry surveys. Indeed, the evidence confirms that
Argentina has applied the RTRR to major importers in several industries.
5. The imposition of trade-restrictive requirements reflects a broader protectionist turn in
Argentine economic policy since the mid-2000s. In an attempt to stimulate domestic production
and keep imports out, Argentina has resorted to rest rictions on imports, such as the RTRR as well
as several non-automatic licensing schemes used to enforce it: the DJAI Requirement and
Certificados de Importación ("CIs").
A. DJAI
 REQUIREMENT

1. Overview of the DJAI and Related Legal Instruments

6. Argentina's Federal Administration of Public Revenue ( Administracíón Federal de Ingresos
Públicos, or "AFIP") issued Resolution 3252 on 5 January 2012. Resolution 3252 established the
DJAI Requirement for all imports of goods into Argentina. The DJAI Requirement became effective
as of 1 February 2012. On 20 January 2012, AFIP issued Resolution 3255 , which sets out
guidelines for managing and processing DJAI applications.
7. Under the DJAI Requirement, importers of goods into Argentina must submit certain
application information on the DJAI page of AFIP's website "prior to issuance of an order form,
purchase order, or similar document used to purchase items from abroad."
8. Article 2 of Resolution 3255 provides that a submitted DJAI transitions to "observed"
("observada") status, i.e., pending indefinitely, if any agency comments on the DJAI within 13
days. Six agencies have the power to submit "observations" on DJAIs: AFIP, the Secretariat of
Commerce ( Secretaría de Comercio Interior , or "SCI"), the National Administration of Medicine,
Food, and Medical Technology ( Administración Nacional de Medicamentos, Alimentación y
Tecnología Médica , or "ANMAT"), the Secretariat for the Prevention of Drug Abuse and Drug
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el Narcotráfico , or "SEDRONAR"), the National Services of Food Quality and Safety ( Servicio
Nacional de Sanidad y Calidad , or "SENASA"), and the National Institute of Viniculture ( Instituto
Nacional de Vitivinicultura , or "INV"). Once a DJAI becomes "observed", the DJAI applicant bears
the burden of contacting each relevant agency to persuade it to withdraw its observations.
9. Resolution 3256/2012 sets out further provisions regarding the mechanism through which
Argentine government agencies comment on DJAIs, and thus delay or deny approval of the DJAI.
In addition, Central Bank Communication "A" 5274 prevents banks from processing purchase
orders and currency exchange transactions for foreign imports unless a DJAI-based approval is
obtained for the relevant import beforehand.
2. Non-Automatic Nature of the DJAI Approval Process

10. DJAIs are granted on a discretionary, non-automatic basis. Resolution 3255 explicitly
provides that participating governmental entities may suspend approval of DJAI requests by
submitting an "observation" related to the DJ AI. In addition, ANMAT, SEDRONAR, SENASA, and
INV have not issued any explanation or information regarding the criteria they apply – as a matter
of their own autonomous, agency-level policy – in determining whether to comment on DJAI
submissions. Official data (as discussed in a pr ess report), industry surveys, and anecdotal
evidence all confirm that DJAIs are regularly not approved, and that the DJAI system is entirely
unpredictable.
3. Scope and Purpose

11. Argentine government officials have repeatedly linked the use of the DJAI to the policy of
managing trade, including through the RTRR. For example, the Secretary of Internal Commerce
Guillermo Moreno stated: "When we study the DJAI, we are going to consider the balance of
foreign exchange, as well as the pace of the company's prices. We will do this on a company-by-
company basis. And business owners understand what the right road is." Similarly, the head of the
Argentine Chamber of Importers concluded: "It is very clear to us that the government is applying
a policy of administering foreign trade to seek to maintain a trade surplus and to stimulate
substitution of imports with domestic production."
4. License Delays

12. In practice, the Argentine government authorities' unfettered discretion in determining
whether to suspend DJAI applications has led to widespread delays in the transitioning of DJAIs
fr o m fo r m a l i ze d s t a t u s to e xit s t a t u s . A lt h o u g h t h e DJ AI s ys t e m o n ly d a t e s t o t h e beg in n in g o f
2012, several court cases involving lengthy delays in DJAI applications have already appeared.
Broad industry surveys similarly confirm the same facts.
B. R
ESTRICTIVE TRADE RELATED REQUIREMENTS ("RTRR" OR "TRADE BALANCING
REQUIREMENT")

1. Overview of the RTRR

13. The RTRR require key importers to undertake certain actions in order to obtain Argentine
government approval for DJAIs and license applications. As noted above, these actions include but
are not necessarily limited to any of the following:
(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.
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14. Thus, the RTRR effectively functions as a trade balancing or localization requirement. This
"one-to-one" requirement entails an overwhelmi ng burden on importers whose business is to
import but not to export.
2. Local Content Requirement

15. Over the last several years, and as part of the RTRR in general, the Argentine Government
has required economic operators in Argentina to incorporate local content in their products by
substituting imported products with products that are or can be produced in Argentina. Sometimes
the local content requirement is imposed as a condition to continue importing some products.
Indeed, the local content requirement is often imposed together with other RTRR requirements,
especially the one-to-one requirement. In those cases, in order to reach the necessary trade
surplus, a local content requirement is also imposed to lower the level of imported products. In
other cases, the local content requirement is not necessarily a condition for the importation of
products but, more generally, is seen as a requirement to do business in Argentina or to benefit
from tax incentives or other types of support.
3. Methods of Enforcing the RTRR

16. The Argentine government enforces the RTRR, including the local content requirement,
through a variety of legal tools, including DJAIs, CIs, and other legal and paralegal means. When
importers fail to comply with the RTRR, Argentina responds by denying the right to import.
a. Enforcement Through DJAIs

17. As mentioned above, Argentina requires importers to undertake certain commitments in
order to obtain Argentine government approval for DJAIs. The Argentine government has explicitly
connected the application of the DJAI Requiremen t to the RTRR. For example, Secretary Moreno
has told customs brokers that importers who wish to obtain government approval for DJAIs must
begin by submitting price lists and an export prog ram/project to the Secretary of Domestic Trade.
Industry surveys also confirm that companies are systematically denied the approval of DJAIs until
they agree to comply with the RTRR.
b. Enforcement Through Other Import License Requirements

18. In addition to securing compliance with the RTRR by withholding the issuance of DJAIs, the
Argentine government has also ensured compliance by withholding the issuance of import licensing
approvals, such as CIs, a non-automatic license requirement. Until 25 January 2013, CIs were
required for the importation of goods falling in over 600 tariff lines, ranging from footwear and
screws to automobiles. The Argentine government's use of CIs included practically no legal
constraints on the Argentine government's discretio n of whether to grant or deny CI applications.
In practice, the Argentine government exercised this discretion to enforce the RTRR, as Argentine
government officials have confirmed on many occasions.
c. Enforcement Through Paralegal Means and Threats

19. In addition to enforcement through the DJAI Requirement that importers have to meet and
other import licensing and import-related requ irements, Argentina has also implemented and
enforced the RTRR through other, paralegal, and non-regulatory or official means.
20. One comment made by Secretary Moreno in March 2009 is particularly telling. "For every
dollar that you demand to buy goods abroad," he sa id, "you will have to generate another locally.
If it's not convenient for you, bring me the ke ys to the company and I will take over." Another
report notes that Secretary Moreno "once put a handgun on a conference table during a meeting
to show he meant business." Indeed, the prevalen ce of face-to-face meetings for enforcing the
RTRR requirement allows the Argentine government to communicate threats to businesses behind
closed doors and makes the entire situation al l the more intransparent, threatening, and
confusing.
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4. Application of the RTRR in Specific Sectors

21. In applying the RTRR, the Argentine government has targeted importers of foreign-origin
goods, including in the automobile, auto parts, motorcycle, agricultural machinery, metallurgical,
mining, publishing, electronic, audiovisual, pharmaceutical, toy, and musical instrument sectors.
This is confirmed by a wide range of evidence from official government press releases, press
reports in domestic and international news media, official statements of Argentine government
economic policy, industry surveys, and other evidence.
II. LEGAL
 ANALYSIS

A. T HE DJAI REQUIREMENT IS INCONSISTENT WITH ARTICLES XI:1, X:3(A), AND X:1 OF THE
GATT 1994

22. Argentina has established the DJAI Requirement in such a way that, in its application, as
well as by its very design, structure and operation, it is inconsistent with core WTO rules.
1. The DJAI Requirement Is Incons istent with Article XI:1 of the
GATT 1994

23. The DJAI Requirement is a restriction on importation within the meaning of Article XI:1
because it is a non-automatic import licensing requirement. Therefore, it is inconsistent with
Argentina's obligations under Article XI:1.
24. Article XI:I of the GATT 1994 states:
No prohibitions or restrictions other than duties, taxes or other charges, whether
made effective through quotas, import or ex port licenses or other measures, shall be
instituted or maintained by any contracting party on the importation of any product of
the territory of any other contracting party or on the exportation or sale for export of
any product destined for the territory of any other contracting party.
Previous panels and the Appellate Body have interpreted Article XI:1 broadly to cover a wide range
of restrictions and have noted that discretionary or non-automatic licensing systems are by their
very nature inconsistent with Article XI:1.
25. As discussed above, under the DJAI, (i) at le ast six agencies have authority to suspend and
prevent importation and the granting of an importation license, simply by making comments; (ii)
the criteria for suspension or approval of importation are not specified; (iii) no meaningful
explanation must be provided to importers for ei ther suspension of the license application or
rejection; (iv) the DJAI Requirement covers all or virtually all categories of goods; (v) the actual
operation of the DJAI Requirement results in substantial delays in or suspension of importation
(and the law itself allows and enables such delays and suspensions); (vi) in practice, Argentine
agencies and officials will often make the grant of importation rights (including through DJAIs)
contingent on trade balancing, import substitution, or local content requirements, as further
detailed in section II below; and (vii) there is no indication that Argentina imposes any of these
requirements for any reason other than to prev ent or suspend importation and trade, and to
encourage local investment, trade balancing and import substitution. The operation of the DJAI
Requirement in practice confirms this assessment, as it has led to frequent and lengthy delays in
importation.
26. In light of the foregoing, the DJAI Requiremen t, by its very design, structure and operation,
as well as in practice, constitutes a non-automatic import licensing measure and is thus "by its
very nature" prima facie inconsistent with Article XI:1 of the GATT 1994. In addition, the DJAI
Requirement provides for open-ended discretion to the relevant Argentina government agencies to
restrict imports and is thus inconsistent with Article XI:1 of the GATT 1994.
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2. The Argentine Government's Admini stration of the DJAI Requirement
Violates Article X:3(a) of the GATT 1994

27. Article X:3(a) of the GATT 1994 prohibits the administration of laws, regulations, judicial
decisions and administrative rulings of general application in any manner that is not "uniform,
impartial, and reasonable". Argentina has structured the DJAI Requirement in a way that affords at
least six Argentine government agencies open-ended discretion in determining whether to approve
or deny DJAI applications. In practice, moreover, this is precisely what they do. As a result,
Argentina administers the DJAI Requirement in a manner that is neither uniform, nor impartial,
nor reasonable, contrary to Article X:3(a) of the GATT 1994.
a. Article X:3(a) of the GATT 1994 Prohibits the Non-Uniform,
Partial, and/or Unreasonable Ad ministration of the Type of
Measures Described in Article X:1 of the GATT 1994

28. The scope of Article X:3(a) of the GATT 1994 covers not only acts of administering covered
measures under Article X:1, but also "legal instruments" that regulate the application or
implementation of such measures. The obligations of Article X:3(a) of the GATT 1994 do not apply
to the substantive content of covered measures, but rather to the administration of such
measures, which includes not only acts of administering such measures, but also legal instruments
that regulate the application or implementation of such measures.
b. The Administration of the DJ AI Requirement Is Non-Uniform,
Partial, and Unreasonable

29. Resolutions 3252/2012, 3255/2012, and 3256/2012, and Central Bank Communication "A"
5274, require importers to obtain import approval pursuant to a DJAI in order to import goods into
Argentina, and they make it possible for multiple government agencies to prevent DJAI approval or
to delay it indefinitely. Moreover, they do not impose any substantive constraints on government
agencies' authority to do so, nor do they impose any requirement for consistency across
government agencies, or from one application to the next, with respect to the criteria for
commenting on DJAI applications or withdrawing such comments.
30. Through its DJAI Requirement, the Argentine government has created a regulatory maze of
unknown and unpublished regulatory requirements and discretionary authority on the part of
authorized government agencies that allows it to keep imports out or allow them to enter at its
and the individual agencies' discretion.
i. The DJAI Requirement as reflected in Resolution 3255/2012
and Other Instruments is the Type of Law and/or Regulation
Covered By Article X:1 of the GATT 1994

31. Article X:1 of the GATT 1994 applies to "{l}aws, regulations, judicial decisions and
administrative rulings of general application" that pertain to "restrictions or prohibitions on
imports." Laws and regulations of "general application" are those that "affect … an unidentified
number of economic operators". Resolution 3252/2012 , Resolution 3255/2012 , Resolution
3256/201, Central Bank Communication "A" 5274, and Resolution SCI 1/2012 all (i) affect an
unidentified number of importers of goods into Argentina, as well as foreign exporters, and (ii)
pertain to the DJAI Requirement itself, which is a restriction on imports. Consequently, the DJAI
Requirement composed of these legal instruments constitutes a "law" and/or "regulation" under
Article X:1 of the GATT 1994.
ii. The Legal Instruments and/or the Features of the
Administrative Process Governing the Implementation of the
DJAI Requirement Lead to the Unreasonable, Partial, and/or
Non-Uniform Administration of the DJAI Requirement

32. The DJAI Requirement and the various legal instruments related to it and that implement it,
result in tremendous uncertainty and unpredictability for importers. As such, the legal instruments
implementing the DJAI Requiremen t, and/or the features of the administrative process governing
the application of the DJAI Requirement, by thei r very nature, structure, and design, lead to
unreasonable, partial, and/or non-uniform administration.
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33. The DJAI Requirement and its associated lega l instruments lack definitions, guidelines or
standards to guide the agencies involved in their administration of the measure. Argentine
government agencies, moreover, are virtually unco nstrained in their discretionary authority to
apply the DJAI Requirement and to make "observations", i.e., impose a halt on importation of a
particular product or import. As such, this necessarily leads to the unreasonable administration of
the DJAI Requirement, inconsistent with Article X:3(a) of the GATT 1994.
34. Resolution 3256/2012 permits a multiplicity of agencies to participate in the review of DJAIs
and Resolution 3255/2012 gives government agencies the power to suspend DJAI applications
without setting out any safeguards to guarantee that the agencies will exercise their administrative
power in a consistent or uniform manner. Accordingly, both the legal instruments regulating the
implementation of the DJAI Requirement, and the specific features of the administrative process
governing the administration of the DJAI Requirement, lead to the risk of non-uniform
administration of the DJAI Requirement.
35. The specific legal instruments implementing the DJAI Requirement and the DJAI-related
administrative process also result in the partial administration of the law, not only (i) for all of the
reasons mentioned above with respect to the lack of uniformity and reasonableness in the DJAI
Requirement's administration; but also (ii) because Argentina administers the DJAI Requirement in
a manner that systematically favors parties that comply with the RTRR.
3. Argentina's Failure to Publish the Laws, Regulations, Judicial
Decisions, and Administrative Ru lings Pertaining to the DJAI
Requirement Is Inconsistent with Article X:1 of the GATT 1994
a. The Criteria for Deciding Whether to Comment on
DJAI Applications, and Whether to Withdraw Such
Comments, Fall Within the Scope of Article X:1
36. Article X:1 applies to laws, regulations, judicial determinations, and administrative rulings
affecting an unidentified number of economic operators. The criteria according to which the DJAI
are commented on and according to which such co mments are withdrawn, affect an unidentified
number of economic operators, because they determine whether and how quickly the importation
of any good will be permitted under Argentine law. Therefore, they fall within the scope of
Article X:1.
b. The Criteria for Deciding Whether to Comment on
DJAI Applications, and Whether to Withdraw Such
Comments, Have Not Been "published promptly in
such a manner as to enable governments and traders
to become acquainted with them."
37. Of the six agencies involved, five have not published any documents whatsoever that might
illuminate the criteria they apply to DJAI applications. This is the case for SCI, ANMAT,
SEDRONAR, SENASA, and INV. There is no legislative or other, broader, government guidance on
this issue either. Although the DJAI User Manual i ssued by AFIP lists thirteen codes that may be
displayed when a DJAI application is commented on, these codes are so vague as to be
uninformative. Finally, the government of Argentina requires the submission of a nota de pedido in
parallel with the DJAI application, even though no formal law or regulation mentions this
requirement.
B. T
HE DJAI REQUIREMENT IS INCONSISTENT WITH 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 ILA
1. The DJAI Requirement is a Non-Automatic Import Licensing
Procedure Under Article 1.1 of the ILA
38. The procedures that Argentina uses for the operation of the DJAI Requirement "require the
submission of an application or other documentation … as a prior condition" for importation into
Argentine customs territory. Therefore, the DJAI Requirement falls squarely within the definition of
Article 1.1, and thus, subject to the provisions of the ILA.
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39. Argentina does not grant approval of DJAI a pplications in all cases and the maximum time
period that Argentina takes to approve DJAI applications exceeds 10 working days. Therefore, the
DJAI Requirement is properly characterized as a non-automatic import licensing procedure, and it
is subject to the provisions of Article 3 of the ILA. Furthermore, the application and other
documentation required to fulfill the DJAI Requirement is not "required for customs purposes" and
therefore is not of the type excluded from the definition of "import licensing" in the ILA.
2. Argentina Administers the DJAI Requirement in a Manner That Is
Inconsistent with Article 1.3 of the ILA
40. Argentina fails to administer the DJAI Requirement in a uniform, impartial and reasonable
manner under Article X:3(a) of the GATT 1994. For those same reasons, and consistent with the
Appellate Body, the DJAI Requirement is also inconsistent with Article 1.3 of the ILA.
3. Argentina Administers the DJAI Requirement In A Manner That Is
Inconsistent With Article 1.4(a) of the ILA
41. Article 1.4(a) requires Members to publish "rules and all information concerning procedures
for the submission of applications … in such a manner as to enable governments and traders to
become acquainted with them." In addition, the publication must be performed in "sources notified
to the Committee on Import Licensing".
42. Argentina has failed to publish the criteria for determining the eligibility of particular goods
and/or exporters for DJAIs and has not notified any publications relevant to DJAIs to the
Committee on Import Licensing. For both reasons, therefore, Argentina has breached Article 1.4(a)
of the ILA.
4. Argentina Administers the DJAI Requirement in a Manner That Is
Inconsistent with Article 1.6 of the ILA
43. The DJAI Requirement is inconsistent with Article 1.6 of the ILA application procedures
because the procedures are not "as simple as possible," given that importers may need to
approach more than three government bodies to remedy comments on DJAIs.
5. Argentina Administers the DJAI Requirement in a Manner That Is
Inconsistent with Article 3.2 of the ILA
44. The design, structure and operation of th e DJAI Requirement have created tremendous
uncertainty for foreign exporters and Argentine importers. Argentina's failure to institute any
safeguards limiting agencies' discretion to decide whether to approve DJAI applications, and the
complete lack of transparency surrounding the entire process have distorted and restricted
imports. Accordingly, the DJAI Requirement has trade-restrictive or distortive effects on imports,
and only this fact is enough to be "additional to those caused by the imposition of the restriction"
under Article 3.2 of the ILA.
6. Argentina Administers the DJAI Requirement in a Manner That Is
Inconsistent with Article 3.3 of the ILA
45. Argentina has not imposed explicit quotas for imports of all of the goods subject to the DJAI
Requirement. Therefore, pursuant to Article 3.3, Argentina has an obligation to publish sufficient
information with respect to the DJAI Requirement for other Members and traders to know the basis
for granting and/or allocating DJAIs, which it has failed to do. Consequently, the DJAI Requirement
is inconsistent with Article 3.3 of the ILA.
7. Argentina administers the DJAI Requirement in a Manner That Is
Inconsistent with Article 3.5(f) of the ILA
46. Under Article 3.5(f), the default time limit to consider non-automatic license applications is
30 days, but a 60-day time limit may apply if all applications are considered simultaneously and
there is an announced "application period" with a specific closing day.
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47. In the case of the DJAI Requirement, the 30-day time limit applies because applications are
not considered simultaneously, nor is there an announced "application period". Because Argentina
frequently fails to abide by this time limit, it has administered the DJAI Requirement in a manner
that is inconsistent with Article 3.5(f) of the ILA.
8. Argentina Administers the DJAI Requirement in a Manner That Is
Inconsistent with Articles 5.1, 5.2, 5.3, and 5.4 of the ILA
48. Argentina has failed to comply with the requirements of Articles 5.1, 5.2, 5.3, and 5.4 of the
ILA because it has never notified the DJAI Requirement or the associated regulations implementing
the Requirement to the Committee on Import Licensing, despite the fact that it is a non-automatic
licensing requirement within the meaning of the ILA.
C. A
RGENTINA'S RESTRICTIVE TRADE RELATED REQUIREMENTS ("RTRR") IS INCONSISTENT
WITH ARTICLES XI:1, III:4 AND X:1 OF THE GATT 1994
49. The RTRR, including the local content requirement it specifically imposes, is inconsistent,
both as such and as applied, with Articles XI:1, III:4 and X:1 of the GATT 1994.
1. The RTRR Is Inconsistent with Article XI:1 of the GATT 1994
50. As discussed above, Article XI:1 of the GATT 1994 broadly prohibits restrictions on
importation. The prohibition extends to measures like the RTRR that make the right to import
contingent on export performance, domestic investment, and the satisfaction of other limiting
conditions.
51. The RTRR requirements, both on their own and collectively, operate as practical thresholds
on the importer's ability to import. In addition, they function as a disincentive to importing by
increasing the financial and bureaucratic burden on importing, for example through the use of
trade balancing requirements and the requirem ent to navigate the DJAI application and
observation process. Thus, Argentina's RTRR violates Article XI:1 both as such and as applied.
2. The RTRR Is Inconsistent with Article III:4 of the GATT 1994
52. To determine whether Argentina's RTRR is inconsistent with Article III:4 of the GATT 1994, it
is necessary to examine whether (1) the goods at issue are like products, (2) the RTRR constitutes
a "law, regulation or requirement"; (3) the RTRR affects the internal sale, offering for sale,
purchase, transportation, distribution or use of imported products; and (4) imported products are
accorded less favorable treatment than the treatment accorded to like domestic products. The
answer to all four questions is yes. Thus, the RTRR, as well as the local content requirement that it
incorporates and reflects, insofar as they impose limitations on the use of imported products, are
contrary to Article III:4.
a. Argentina's Measures Satisfy the Like Product
Requirement
53. It is well established in WTO jurisprudence that measures distinguishing between goods
solely on the basis of national origin satisfy the "like product" requirement. Under the RTRR and
the local content requirement it embodies, the Argentine government makes the granting of
importation rights conditional on, inter alia , the purchase of domestically produced goods. This
requirement is based exclusively on the products' origin. Thus, the goods manufactured in
Argentina and imported from elsewhere are like products within the meaning of Article III:4 of the
GATT 1994.
b. Argentina's Measures Cons titute "Requirement[s]"
54. Panels interpreting Article III:4 have stated that the term "requirement" encompasses not
only conditions that are mandatory, but also conditions whose fulfillment is necessary to obtain a
commercial advantage.
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55. Under the RTRR, and the local content requirement in particular, companies that want to
obtain the right to import goods into Argentina must agree to undertake certain actions such as
limiting the volume of their imports, reducing their prices, or incorporating local content into the
goods they produce in the country. Even if one characterizes these commitments towards the
government as conditions that importers "voluntarily" accept in order to obtain the "advantage" of
being permitted to import, they constitute a "requirement" within the meaning of Article III:4 of
the GATT 1994.
c. Argentina's Measures Affe ct the Internal Sale of
Goods
56. Panels and the Appellate Body have interpreted this criterion as applying to measures which,
like Argentina's RTRR, require the purchase of domestically produced goods.
57. Argentina's RTRR influences domestic manufacturers' choice between imported and domestic
input products, because only domestic products count towards the RTRR, and purchases of
domestically produced goods do not need to be offset with exports, purchases of local content, etc.
Thus, the RTRR, and the local content requirement, adversely modify the conditions of competition
between domestic and imported goods, and therefore affect the internal sale of goods.
d. Under Argentina's Measur es, Imported Products Are
Accorded Less Favorable Treatment Than Domestic
Products
58. By setting local content targets as a condition to operate in Argentina or to have access to
an advantage, the Argentine government alters the conditions of competition in Argentina,
negatively affecting the possibilities for imported products to be used in Argentina.
59. First, Argentina's measures impose a burden on purchasers of goods only to the extent that
they purchase imported goods, i.e., they tilt the competitive landscape in favor of domestic
products, because purchases of domestically produced goods do not need to be offset with
exports, local investments, refraining from re patriating currency, etc. Second, Argentina's
measures tilt the competitive landscape in favor of domestic products by conferring import
"credits" for purchases of domestically produced goods, but not foreign goods. Thus, for example,
firms that already import certain goods but are making a purchasing decision about other types of
goods would prefer to purchase domestic rather than foreign-origin goods, because only domestic
goods would enable the company to offset imports and thus continue importing. Both aspects
modify the conditions of competition in favor of domestically produced goods, in violation of
Article III:4. Moreover, this conclusion is confirmed by Paragraph 1(a) of the Illustrative List of the
TRIMs Agreement, which provides that measures like local content requirements are inconsistent
with Article III:4 of the GATT 1994.
3. Argentina's Failure to Publish the RTRR Promptly in Such a Manner
as to Enable Governments and Trad ers to Become Acquainted with
Them Is Inconsistent with Article X:1 of the GATT 1994
60. There are two relevant questions that a panel must address in determining whether a
particular measure is consistent with Article X:1: (i) does the measure fall within the scope of
Article X:1, and (ii) if so, has it been pub lished promptly in such a manner as to enable
governments and traders to become acquainted with them. For the RTRR, the answer to (i) is yes,
and the answer to (ii) is no.
61. The RTRR falls within the scope of Article X: 1, as interpreted by panels and the Appellate
Body. At a minimum, the RTRR constitutes the "exercise of influence" by Argentine administrative
bodies, because Argentine administrative authorities induce or guarantee compliance with the
RTRR through the allocation of importation rights.
62. In addition, Argentina has failed to publish the RTRR in "such a manner as to enable
governments and traders to become acquainted with them." Moreover, Argentina has also failed to
publicly articulate the methods it uses to enforce the RTRR. Rather, Argentina often avoids the
strictures of Article X:I by communicating the RTRR to individual companies verbally, thus avoiding
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public scrutiny to some degree. For all of these reasons, Argentina's adoption and maintenance of
the RTRR is inconsistent with Article X:1.
III. CONCLUSION

63. For the reasons set out above, Japan respectfu lly requests the Panel to find that the DJAI
Requirement is inconsistent with Articles XI:1, X:3(a) and X:1 of the GATT 1994, and 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 ILA, and that the RTRR, both as such and
as applied, is inconsistent with Articles XI:1, III:4, and X:1 of the GATT 1994.
ORAL STATEMENT AT THE FIRST SUBSTANTIVE MEETING
I. ARGENTINA FAILS TO REBUT JAPAN'S PRIMA FACIE CASE THAT THE DJAI
REQUIREMENT IS WTO-INCONSISTENT, BOTH AS SUCH AND AS APPLIED
1. Japan's First Written Submission established a prima facie case that the DJAI Requirement is
i n c o n s i s t e n t w i t h A r t i c l e s X I : 1 a n d X : 3 ( a ) o f t h e G A T T , a s w e l l a s n u m e r o u s p r o v i s i o n s o f t h e
Import Licensing Agreement (ILA). Argentina responds with two arguments: First, Argentina
advances the factual argument that the DJAI Requirement is an "advance electronic information
procedure" adopted in conformity with the WC O SAFE Framework standards and best practices.
Second, Argentina advances the legal argument that the DJAI Requirement falls under Article VIII
of the GATT, and therefore cannot fall under any of the other provisions of the GATT or the ILA
that the Complainants have invoked. Neither of these two arguments is persuasive.
A. T
HE DJAI REQUIREMENT IS DESIGNED AND FUNCTIONS AS A NON-AUTOMATIC IMPORT
LICENSE REQUIREMENT
2. The DJAI Requirement is designed and func tions as a discretionary, non-automatic import
licensing requirement, and its trade restrictive effects have been widely reported in the press. It is
a general condition for the importation of goods into Argentina. Upon submission of a DJAI through
Argentina's MARIA information system, no less than six Argentine government agencies have the
opportunity to review and submit comments on the DJAI within 15 days. Nothing constrains their
decision to comment, other than the laws providing their general agency-wide mandates (which do
not address DJAIs specifically). Agency comments automatically trigger the indefinite suspension
of DJAI approval, which amounts to an indefinite suspension of the right to import the good. The
burden is on the importer to remedy the situation by attempting to persuade the relevant
government agency to withdraw its comment, and there are no clear guidelines governing this
process.
3. Argentina does not contest any of these or most other facts on the record. Rather, Argentina
seeks to shift the focus of the conversation to an issue that is essentially irrelevant: the WCO SAFE
Framework. In truth, however, the SAFE Framework is an international set of guidelines to
facilitate customs-to-customs cooperation in identifying and inspecting shipments that may pose
national security risks. It has nothing to do with the problematic features of the DJAI Requirement,
which is a far cry from the discretionary, trade-restrictive DJAI Requirement. Japan has no
concerns with the WCO SAFE Framework itself.
B. T
HE DJAI REQUIREMENT IS INCONSISTENT WITH ARGENTINA'S OBLIGATIONS UNDER
ARTICLE XI:1 GATT AND THE ILA
4. Argentina argues that the DJAI Requirement is subject to Article VIII of the GATT and,
therefore, cannot also be subject to Article XI:1. Argentina also argues that, to the extent that the
DJAI Requirement is an import license requirement and quantitative restriction, Article XI:1 of the
GATT does not apply – says Argentina – because the ILA is a lex specialis. However, an analysis of
the WTO agreements confirms that Argentina's reading of the relevant provisions is fundamentally
flawed.
5. Under the text of Article XI:1, any prohibition or restriction on importation or exportation
falls within the ambit of Article XI:1 unless it is a "duty, tax, or other charge[]". In other words,
the only limitation or exception specifically contained in Article XI:1 is that they cannot be duties,
taxes, or other charges. The DJAI Requirement is not a duty, it is not a tax, and it is not another
type of charge, and therefore, by the plain language of Article XI:1 itself, it falls under Article XI:1
as long as it is a "prohibition[] or restriction[] … on the importation of any product or … the
exportation or sale for export of any [such] product …". Therefore, it is subject to, and inconsistent
with, the disciplines of Article XI:1.
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6. In addition, the DJAI Requirement is subj ect to the ILA. There are two criteria for
determining whether a measure is subject to the ILA: (i) whether it is an administrative procedure
for the operation of import licensing regimes, and (ii) whether it entails the submission of
documentation to an administrative body, other than that required for customs purposes, as a
prior condition for importation. The DJAI Requirement satisfies both criteria.
7. Furthermore, neither Article XI:1 nor the ILA contains any indication that the two are
mutually exclusive, as Argentina incorrectly argues. Indeed, the text of the ILA itself contradicts
this proposition. Argentina's interpretation is further undermined by the case law, and by its
misunderstanding of the lex specialis principle. In fact, this principle is triggered where two laws
conflict, but it need not be invoked otherwise. In this case, Article XI:1 and the ILA overlap but do
not conflict, and therefore the lex specialis principle does not apply.
II. ARGENTINA
 HAS FAILED TO REBUT JAPAN'S ARGUMENTS REGARDING THE RTRR
8. Like the DJAI Requirement, the RTRR is also inconsistent with several provisions of the
GATT. The RTRR requires economic operators to satisfy one or more of the following five
conditions in order to obtain approval of imports:
(1) exporting a certain value of goods from Argentina related to the value of imports;
(2) limiting the volume of imports and/or reducing their price;
(3) refraining from repatriating funds from Argentina to another country;
(4) making or increasing investments in Argentina (including in production facilities);
and/or
(5) incorporating local content into domestically produced goods.
9. To implement the RTRR, Argentina uses and has used a variety of different legal
instruments, including not only DJAIs but also Certificados de Importación (CIs), another variety of
non-automatic license that Argentina eliminated shortly before the establishment of this Panel, as
well as other legal and paralegal means. Argentina has applied the RTRR to major importers in
several industries, including importers and manufacturers of automobiles, auto parts, motorcycles,
agricultural machinery, retail apparel, books and other publishers, and the metallurgical industry.
10. These requirements severely constrain the ability of importers to import goods into
Argentina and create enormous uncertainty and unpredictability in the marketplace. The RTRR
requirements, both on their own and collectively, operate as practical thresholds on the importer's
ability to import. Moreover, through its local content and import substitution requirements in
particular, the RTRR violates Article III:4 of the GATT as well.
11. Rather than responding substantively to these arguments, Argentina accuses the
Complainants of relying on two media sources, La Nación and El Clarín , whose owners and/or
managers allegedly have an anti-government bias, engage in monopolistic practices, and have
even been involved in "crimes against humanity." Argentina also accuses the Complainants of
citing "quotes and statements intended to discredit and insult public officials of different ranks."
12. To be clear, Japan does not have the "political intent" that Argentina imputes to it. The
history of this dispute demonstrates that Japan's interest lies not in attacking the Argentine
government, but in achieving a mutually acceptable solution involving the removal of Argentina's
import restrictions – the DJAI Requirement and the RTRR. Furthermore, the two news sources that
Argentina accuses of having an anti-government bias account for only 17 of these 734 exhibits
provided by Japan. Moreover, the content of thes e news stories is corroborated by other evidence
from domestic and international press reports and other types of evidence. Argentina has not
contested the accuracy of any of this evidence thus far.
13. Japan did, as Argentina observes, submit ev idence that relates to the conduct of certain
high-ranking officials. Japan believes that such evidence demonstrates and helps confirm the
nature, structure, and overall design and object ives of the RTRR measure. Furthermore, such
evidence confirms that the RTRR is authorized by the top levels of the Argentine government.
III. ARTICLES X:1
 AND X:3(A) GATT
14. Japan's First Written Submission explains that Argentina has acted inconsistently with
Articles X:1 and X:3(a) of the GATT through th e imposition of the DJAI Requirement and the
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RTRR. These shortcomings point to a general lack of transparency that Argentina continues to
exhibit through its arguments and litigation tactics in this dispute.
15. With respect to the DJAI Requirement, the criteria for determining whether to comment on
DJAI applications, and whether to withdraw such comments, are rules of general application, as
they apply to all importers and all imported goods. Argentina has failed to publish these criteria,
and therefore has acted inconsistently with Article X:1. In response, Argentina attempts to defend
its failure to be transparent by its own lack of tr ansparency, arguing that the criteria used to grant
or deny DJAIs are in fact not "universal" but rather vary according to the "nature of the goods
concerned and the agency's regulatory authority." Argentina fails to explain precisely what it has in
mind in making this statement, but in any event it is Argentina's burden to identify any such facts
and explain how they are supposedly relevant.
16. Japan's First Written Submission also explains that the administration of the DJAI
Requirement is inconsistent with Article X:3(a) both as such and as applied . Under the DJAI
Requirement, Argentine government agencies have open-ended discretion to determine whether to
approve or deny DJAI applications. Argentina responds by arguing that Japan's claims refer "to
substantive rules" rather than "the administration of rules of general application." However, the
Appellate Body has stated that the term "administration" as used in Article X:3(a) includes not
only the act of administering the measures described in Article X:1, but also legal instruments that
regulate the application or implementation of such measures. It also held that the features of an
administrative process governing the application of laws and regulations described in Article X:1
may constitute relevant evidence for making a case under Article X:3(a). Accordingly, Japan's
claims under Article X:3(a) properly target the legal instruments through which Argentina
administers the DJAI Requirement, and the features of the administrative process governing the
application of the DJAI Requirement.
17. With respect to the RTRR, Japan's First Written Submission explains that Argentina's failure
to publish the Requirements and the consequences for not satisfying them is inconsistent with
Article X:1. Argentina has so far responded only with silence.
18. Overall, Argentina's approach with respec t to both the DJAI Requirement and the RTRR
simply reconfirms and further emphasizes the very la ck of transparency that is at the core of this
dispute. Argentina meanwhile has not provided an y contrary evidence as to RTRR. Argentina has
not denied that it has made any of the requiremen ts related to the RTRR to individual companies,
neither has it denied that it has concluded agreements related to the RTRR with individual
companies.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX B-6
SECOND PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
SECOND WRITTEN SUBMISSION

I. INTRODUCTION

1. The measures challenged in this dispute have transformed Argentina into one of the most
difficult places for importers and other traders to operate. According to press reports, the DJAI
Requirement and the RTRR have led to severe supply chain shortages, layoffs, and an endless
sequence of agreements between the Argentine go vernment and importers to offset imports with
exports, investments, price-decreases, etc.

2. A range of other domestic and international press reports all confirm that Argentina is
restricting imports across the board by means of th e DJAI Requirement – and to the extent that it
deliberately lifts these restrictions, it is to reward compliance with the RTRR.

3. The Complainants have submitted more th an 750 exhibits, which go well beyond the
evidentiary standard required to establish a prima facie case that the DJAI Requirement and the
RTRR are WTO-inconsistent. Moreover, Argentina has so far decided not to attempt to rebut this
body of evidence with additional evidence, nor has Argentina even denied its accuracy.

4. One of the main themes in Argentina's defense is that it attempts to turn its own lack of
transparency against the Complainants. In particular, Argentina faults the Complainants for not
providing evidence that is in its sole possession. However, Argentina is the party that should
provide this evidence to the Panel – and if it persists in its refusal to do so, then the Panel can
infer that such evidence, if provided, would confirm the claims that Complainants have already
substantiated through other evidence.

II. SCOPE
 OF THE FINDINGS SOUGHT

5. This dispute involves two measures: (i) the DJ AI Requirement; and (ii) the Restrictive Trade
Related Requirements (RTRR).

6. Japan has previously stated that it is seeking separate as such and as applied findings that
the RTRR is inconsistent with Articles III:4, X:1, and XI:1 of the GATT 1994. With respect to the
DJAI Requirement, Japan is not seeking separate as such and as applied findings. Rather, Japan is
seeking findings that the measure as such is inconsistent with Articles XI:1, X:3(a), and X:1 of the
GATT 1994, and 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 ILA.

7. It is in the interest of an effective resolution of this dispute for the Panel to issue separate
findings on each of these claims. If the Panel were only to address some claims but not others, this
could hamper the Appellate Body's ability to complete the analysis on appeal and could jeopardize
or be interpreted by Argentina to jeopardize Complainants' ability to ensure that Argentina
complies with the DSB's eventual recommendations and rulings.

A. J
APAN'S REQUEST FOR AS SUCH AND AS APPLIED FINDINGS WITH RESPECT TO THE RTRR

8. Panels and the Appellate Body can make findings against measures as such , and such
findings have important implications for a Member's obligations to ensure compliance with the
DSB's recommendations and rulings. Japan specifically requests the Panel to issue three different
sets of findings regarding the RTRR: (i) findings against the RTRR as an unwritten rule or norm as
such; (ii) findings against the RTRR as an unwritten practice or policy, as confirmed by the
systematic application of the measure; and (iii) findings against individual applications of the
RTRR, as outlined in Japan's and the other Complainants' submissions.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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B. J APAN'S REQUEST FOR FINDINGS AGAINST THE DJAI REQUIREMENT

9. Japan also requests that the Panel make findings that the DJAI Requirement as such is
inconsistent with Articles XI:1, X:3(a), and X:1 of the GATT 1994, and 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 ILA. Such findings would obligate Argentina to
eliminate the requirement to obtain a DJAI in order to import goods into Argentina.

10. It is important to issue recommendations and rulings with respect to both the RTRR and the
DJAI Requirement, so as to create a clear compliance obligation for Argentina to both (i) allow
companies to import freely, without having to offset imports through exports, domestic
investment, import substitution, etc.; and (ii) to remove any elements of the DJAI Requirement
that make it non-automatic and/or discretionary.

III. EVIDENTIARY
 ISSUES

11. Complainants' First Written Submissions esta blished that the DJAI Requirement subjects
imports to a non-automatic licensing procedure, in which multiple Argentine government
authorities have open-ended discretion in delaying and/or denying DJAIs. In addition, the
Complainants established that Argentina imposes the RTRR, a general and prospective measure,
by concluding ad hoc agreements with individual economic operators, as a condition for them to
import goods into Argentina. The Complainants have also established that the DJAI Requirement
has trade-restrictive effects independent of the RTRR, and that the RTRR is implemented through
tools other than the DJAI.

12. All of these facts are further confirmed by Argentina's responses and non-responses to the
Panel's questions. For example, Argentina's respon se to Question 23 indicates that nine Argentine
government entities failed to identify whether (i) more than 9 entities may make observations in
the DJAI procedure; (ii) the reasons why the 9 entities identified or any other Argentine
government agencies may place an observation; (iii) the specific provision in the relevant legal
instruments that explains the reasons for an observ ation to be filed by each of these entities; and
(iv) the specific information required by these enti ties to lift an observation. Argentina has also
failed to provide any substantive response to Questions 13-14, 16-18, and 26.

13. In light of Argentina's refusal to provide th e information requested by the Panel, the Panel
may infer that the evidence submitted by the Complainants, and referred to in the Panel's
questions, is entirely accurate, and would if submitted confirm the existence and general and
prospective nature of the RTRR. The Panel may also infer that any information that is absent or is
not clearly specified in Argentina's responses to the Panel's questions means that the information
does not exist, and thus (i) more than 9 Argentine government entities may make observations in
the DJAI procedure; (ii) the 9 entities identified, and any other Argentine government involved in
the DJAI process, may place an observation for any reason whatsoever; (iii) there are no specific
provisions in the relevant legal instruments that explains the reasons for an observation to be filed
by each of these entities; and (iv) there is no li mitation on the specific information required by
these entities to lift an observation.

A. C
ONTINUED APPLICATION OF THE DJAI REQUIREMENT

14. Argentina continues to apply the DJAI Requirem ent to restrict imports. For example, in an
interview on 17 July 2013, Aquiles Guillermo Arús, an Argentine customs broker, described that
approximately 30% of DJAIs overall are being approved, and all sectors of the economy are
affected. Importers state that the DJAI Requirement is part of the Argentine government's broader
policy of import substitution, which previously was implemented through the CI Requirement.

B. C
ONTINUED APPLICATION OF THE RTRR

15. Argentina has also continued applying the RTRR in an effort to promote its policies of
balancing trade deficits and import substitution. Fo r example, in September, Secretary of Internal
Commerce Guillermo Moreno began denying DJAIs for imports of agrochemicals and raw materials
for processing them. Also, within the past year and a half, Secretary Moreno has asked executives
in the agrochemical business to submit plans to offset their imports. In addition, the Argentine
government has continued pursuing its policy of import substitution in the hydrocarbon exploration
and refining sector and the automobiles and auto parts sectors.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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C. B URDEN OF PROOF AND POSSESSION OF RELEVANT GOVERNMENT DOCUMENTS

16. A key issue in this dispute is which party ha s the burden to provide the documents that are
responsive to the Panel's Questions 16-19 and 26. These documents corroborate other evidence
already before the Panel showing the content of the RTRR, its attribution to the government of
Argentina, and its general and prospective nature.

17. The Appellate Body has recognized that when one party has relevant evidence in its sole
possession, the burden to provide that evidence must fall to that party. In this particular dispute,
the information requested by the Panel is either in the sole possession of Argentina or, where it is
not, Complainants have already diligently exhausted all means to acquire it and provide it to the
Panel. Complainants have also demonstrated that there is a legitimate limit to information that
they are able to provide, because individual ec onomic operators have a legitimate concern about
retaliation at the hands of the Argentine government. Such information is of the type that "a party
cannot reasonably be expected" to adduce.

18. Argentina has failed to provide the requested information, but has not identified any
justifiable cause. It is clear that Argentina does have direct possession of the information and does
not have, nor has it claimed to have, any legitimate excuse not to provide it. It is thus Argentina's
burden to provide the information – and its failure to do so only confirms the Complainants' prima
facie case.

IV. ARGENTINA
 HAS FAILED TO REBUT JAPAN'S PRIMA FACIE CASE AGAINST THE DJAI
REQUIREMENT

19. In its First Written Submission, Japan established a prima facie case that the DJAI
Requirement was inconsistent with Articles XI:1, X:3(a), and X:1 of the GATT 1994, and that
Argentina administers the DJAI Requirement in a manner that is inconsistent with 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 ILA. The DJAI functions as a non-
automatic, highly discretionary license requirement that restricts importation. Therefore, it is per
se inconsistent with Article XI:1 of the GATT 1994.

20. Argentina does not attempt to argue that the DJAI Requirement satisfies the requirements
of Article XI:1 of the GATT 1994 or of the ILA. Rather, Argentina argues that customs formalities
are subject only to the disciplines of Articl e VIII of the GATT 1994. However, Argentina's
arguments fail to demonstrate that the DJAI Requirement is WTO-consistent.

A. T
HE DJAI REQUIREMENT IS SUBJECT TO – AND INCONSISTENT WITH – ARTICLE XI:1 OF
THE GATT 1994

21. The DJAI Requirement is inconsistent with Article XI for two reasons: (i) it functions as a
discretionary, non-automatic import license requirement, and (ii) it inherently creates open-ended
discretion and uncertainty in the DJAI process, which not only leads to a denial of DJAI
applications but also deters importers from applying at all.

22. Argentina attempts three counterarguments: (i) that Japan's argument would improperly
allocate the burden of proof; (ii) that Article VIII shields the DJAI from review under Article XI, and
(iii) that the DJAI Requirement is exempt from Article XI because it is a licensing procedure.
However, all three attempted counterarguments fail.

1. It is Argentina's burden to establish any Article XX defense that it
might invoke – not the Complainants' burden to establish that no such
defense applies

23. Japan challenges the DJAI, which is an open-ended, discretionary, non-automatic import
licensing procedure. If a Member imposes an import formality or requirement that constitutes a
"non-automatic licensing requirement" or otherwise restricts imports, such a measure is
inconsistent with Article XI:1. At that point, the Responding Member will bear the burden of
establishing any affirmative defense, including under Article XX(d).
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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24. In this case, given that the DJAI Requirement violates Article XI, it is Argentina's burden to
establish that it is nonetheless GATT-consistent by invoking an affirmative defense. Furthermore,
the Complainants have established a prima facie case that the DJAI Requirement violates
Article XI:1 of the GATT 1994. Therefore, it is up to Argentina to invoke any affirmative defense
and bear the burden to establish a prima facie defense in that respect. Argentina has not done so,
and indeed has not even invoked Article XX. Therefore, Argentina fails to rebut Japan's prima facie
case that the DJAI Requirement is inconsistent with Article XI:1.

2. Article VIII does not shield the DJAI Requirement from review under
Article XI:1

25. Argentina argues that Articles XI:1 and VIII are mutually exclusive, with customs formalities
falling under Article VIII. Argentina argues further that the DJAI Requirement is a customs
formality, so it falls under Article VIII rather than Article XI:1. However, these assertions are
wrong, as is evident from the text of these tw o provisions, as well as evidence regarding the
nature of the DJAI Requirement.

a. Articles XI:1 and VIII ar e not mutually exclusive.

26. The text of Articles XI and VIII shows th at they in fact have overlapping coverage.
Article XI:1 is very broad in scope, providing for a general ban on import or export restrictions
"other than duties, taxes, or other charges". This ban specifically covers not only "quotas" but also
"import [and] export licenses" – two terms to which the text of Article XI:1 specifically refers.
Moreover, the inclusion of the term "other measures" means that, under the text of Article XI:1,
any prohibition or restriction on importation or exportation falls within the ambit of Article XI:1
unless it is a "duty, tax, or other charge[]".

27. Argentina argues that customs formalities are a priori excluded from the scope of
Article XI:1. Such an interpretation has no basis in the treaty text, which does not distinguish
between substantive rules and procedures. It would also lead to a dangerous imbalance between
the GATT's treatment of "fees and charges" connected with importation and exportation on the one
hand, and its treatment of "formalities and requirements" connected with importation and
exportation on the other.

b. Even if Articles VIII and XI we re mutually exclusive, the DJAI
Requirement would fall under Article XI, because – contrary to
Argentina's assertions – it is not a customs formality

28. Argentina is wrong to characterize the challenged measure as a customs formality.
Argentina's argument starts from the false premise that the challenged measure is the "DJAI
procedure," as opposed to the DJAI Requirement. However, the Complainants' Panel Requests
identify the DJAI Requirement as the challenged measure, and the Panel's terms of reference are
defined accordingly.

29. Argentina's invocation of the WCO SAFE Framework ("SAFE") only shows how far removed
the DJAI Requirement is from customs formal ities. Whereas SAFE provides for automated,
security-based screening mechanisms of international cargo shipments, DJAIs are granted on a
non-automatic, discretionary basis, at the whims of six or more government agencies. Whereas
SAFE provides for inspection of potentially risky cargo in the least intrusive manner possible, the
DJAI Requirement uses the bluntest, most trade-restrictive approach. Therefore, even if, as a legal
matter, customs formalities fall under Article VIII but not Article XI – which is incorrect – this
would be irrelevant, because the DJAI Requirement is not a customs formality, but rather a tool for
administering Argentina's policy of restricting imports, trade balancing, and import substitution,
both in and of itself, and also in support of and through the RTRR.

3. There is no exemption from Articl e XI for import licensing procedures

30. Argentina argues in the alternative that if the DJAI Requirement is not a mere customs
formality, then it is a licensing procedure rather than a substantive rule restricting importation.
Furthermore, Argentina argues that Article XI:1 does not apply to such procedures, by virtue of
the lex specialis principle and the ILA. However, Argentina's syllogism relies on two false premises:
(i) that the Article XI:1 analysis should be driven by Argentina's proposed rule/procedure
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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distinction; and (ii) that the ILA and the GATT 1994 conflict. Accordingly, Argentina's argument in
the alternative fails.

B. T
HE DJAI REQUIREMENT IS SUBJECT TO – AND INCONSISTENT WITH – THE ILA

31. Japan made a prima facie case that the DJAI Requirement is inconsistent with multiple
provisions of the ILA. In response, Argentina ha s not mounted any specific arguments or defenses
under any of the specific provisions of the ILA that Japan and the other Complainants have
invoked. Rather, Argentina argues that the DJAI Re quirement is not subject to the ILA, because it
is not a license requirement. However, this argument is incorrect.

1. The DJAI Requirement Is an Import Licensing Procedure Subject to the
Import Licensing Agreement

32. There are two criteria for determining whethe r a measure is subject to the ILA: (i) whether
it is an administrative procedure for the operation of import licensing regimes, or a similar
administrative procedure, and (ii) whether it entails the submission of documentation to an
administrative body, other than that required for customs purposes, as a prior condition for
importation. The DJAI satisfies both criteria, and thus is subject to the ILA.

2. Argentina's reliance on Turkey – Rice is misplaced

33. Argentina attempts to argue that Turkey – Rice shows that the DJAI Requirement is not an
import license requirement. In fact, however, Turkey – Rice indicates that a measure's structure,
design, and operation determine whether it is, or is similar to, an administrative procedure for the
operation of import licensing regimes. In this case, the DJAI Requirement is an import license
requirement by virtue of its structure, design, and operation – and thus Turkey – Rice in fact
confirms the Complainants' claims against the DJAI Requirement.

3. The DJAI Requirement is not for customs purposes

34. Argentina argues that the DJAI Requirement is for customs purposes. However, Argentina's
responses to the Panel's questions indicate that each DJAI is subject to observation by at least
eight Argentine government-related agencies, for reasons unrelated to customs. Argentina also
fails to articulate a coherent account of what customs-related purpose the DJAI supposedly serves.
Accordingly, Argentina's own responses to the Pane l's questions contradict its argument that the
DJAI Requirement is for customs purposes.

C. T
HE DJAI REQUIREMENT IS SUBJECT TO – AND INCONSISTENT WITH – ARTICLE X:1 OF THE
GATT 1994

35. Japan established a prima facie case that the DJAI Requirement is inconsistent with
Article X:1, because the criteria governing whether agencies comment on DJAI applications, and
whether they withdraw such comments, are rules of general application, and Argentina has not
published them. In response, Argentina argues that it published the statutory authority for the
DJAI Requirement. However, this is insufficient to satisfy the requirements of Article X:1.
Accordingly, Argentina's argument fails.

D. T
HE DJAI REQUIREMENT IS SUBJECT TO – AND INCONSISTENT WITH – ARTICLE X:3 OF THE
GATT 1994

36. Japan also made a prima facie case that the administration of the DJAI Requirement is
inconsistent with Article X:3(a). Under the DJAI Requirement, Argentine government agencies
have open-ended discretion to determine whether to approve or deny DJAI applications. Once an
agency merely comments upon a DJAI, the importation is halted indefinitely, until the importer
persuades the agency/-ies involved to remove the comments. This process is inherently non-
uniform, partial, and unreasonable, contrary to Argentina's obligations under Article X:3. Argentina
simply fails to engage with these points, and accordingly, it fails to rebut Japan's prima facie case.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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V. ARGENTINA HAS FAILED TO REBUT JAPAN'S PRIMA FACIE CASE AGAINST THE
RTRR.

A. J APAN HAS ESTABLISHED A PRIMA FACIE CASE THAT THE RTRR IS INCONSISTENT WITH
ARTICLES III:4, X:1, AND XI:1 OF THE GATT 1994, BOTH AS SUCH AND AS APPLIED

37. Japan and the co-Complainants have submitted over 750 exhibits illustrating the substantive
content of the RTRR, as well as examples of in stances where it has been applied. Japan also
demonstrated that these instances of the RT RR's application are instances of systematic
application of a broader measure that applies both generally and prospectively. In particular, the
RTRR applies generally in the sense that it is not applied in particular instances only, but with
respect to companies across sectors, over a substantial period of time. In addition, Japan has
demonstrated that the RTRR applies prospectively, i.e., on an ongoing basis since 2009.

38. Previous panels have recognized that meas ures with general and prospective application
may be WTO-inconsistent as such, even if they are de facto and/or unwritten measures. They have
also recognized that de facto policies or practices may constitute violations of WTO provisions, on
either an as such or as applied basis. In this case, there is a repeated pattern of imposing a range
of import-restrictive requirements, the RTRR. Thus, the RTRR is challengeable as such and as
applied as a de facto or unwritten practice or policy.

B. A
RGENTINA FAILS TO UNDERMINE JAPAN'S PRIMA FACIE CASE THAT THE RTRR IS WTO-
INCONSISTENT, BOTH AS SUCH AND AS APPLIED.

39. Argentina does not actually contest or deny mo st of the evidence as to the actual operation
of the RTRR. When the Panel gave Argentina the opportunity to comment on the instances of the
RTRR's application, Argentina did not deny that any of them had occurred, nor did it provide
evidence to rebut them. When the Panel asked Arge ntina for copies of agreements with individual
economic operators pursuant to the RTRR, as well as other information identified in
Questions 16-18 and 26, Argentina did not deny that the requested information exists.

40. Furthermore, the evidence fully supports the pr oposition that the RTRR exists, that it has the
precise content that Complainants articulated in their Panel Requests, that it has a general and
prospective character, and that it can be attributed to the government of Argentina.

41. Argentina argues that the Complainants have not defined the RTRR sufficiently clearly.
Argentina also questions the credibility of a limited set of evidence demonstrating ten particular
instances of the RTRR's application. However, these arguments are incorrect and, in any event, fail
to undermine Japan's and the other Complainants' claims.

1. Argentina fails to establish that the Complainants have not defined the
RTRR with sufficient precision

42. Argentina argues that the Complainants have defined the RTRR in such a way that it
"include[s] virtually any aspect of [Argentina's] economic policies." However, there is no support
for this assertion. Japan's response to Question 10 already clarified that Japan is not challenging
Argentina's overall economic policies. Rather, Japan is challenging the RTRR itself (as well as the
DJAI Requirement).

43. Moreover, there is no legal support for Argentina's position that an unwritten measure must
be defined with perfect precision in order to be subject to a WTO legal challenge. Indeed, the
Appellate Body has made clear that complainants challenging an unwritten or de facto measure
are not required to specify its "precise contours" in ways that are necessarily the same as one
might expect for a written, de jure measure.

2. Argentina's Attacks on the Credibi lity of Evidence Fail – and Would in
Any Event be Insufficient to Undermine Complainants' Prima Facie
Case.

44. In its efforts to undermine the evidence, Ar gentina has accused Complainants of forming a
"coalition of world powers against the Argentine Republic" with "political objectives" rather than a
"trade interest". It insinuated several times that Complainants "waived" "crimes against
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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humanity". It has dismissed one exhibit as "a worthless piece of evidence, which can be
characterized as a legal puppet[]". Yet, despite all this rhetoric, Argentina has not pointed to any
specific inaccuracy in the factual statements submitted by the Complainants, nor has it identified
any inaccuracies in the underlying exhibits, let alone provided any evidence to the contrary.

a. EU-14 (Question 13)

45. The evidence that Argentina described as "worthless legal puppet" is Exhibit EU-14, an
affidavit signed by a notary public, Richard Rodriguez, who practices in Geneva, Switzerland.
Exhibit EU-14 identifies the name of the declaran t, the eight documents presented to him, and it
notes that Argentine government officials signed all eight documents. Nothing about the notary
certification appears on its face to be "inappropriate", as Argentina incorrectly asserts, nor does
Argentina identify any specific defect. Accordingly, Argentina fails to establish that there are
actually any flaws in Exhibit EU-14.

46. Furthermore, Argentina does not deny the accuracy of the information in the affidavit, nor
does it deny that the underlying agreements exis t. At the very least, this confirms that the
description of the documents in the affidavit matches others with which Argentina is familiar.

b. JE-306 and JE-307 (Question 14)

47. Argentina also attempted to cast doubt on the credibility of Exhibits JE-306 and JE-307, two
affidavits submitted by employees of U.S. companie s. Argentina did not identify any specific flaws
with the documents, but rather speculated about the way that notarized documents in general
could be inaccurate. Argentina also did not deny the accuracy of the information in these two
exhibits. Therefore, at the very least, Argentina's response to Question 14 in fact confirms that
employees working on behalf of Secretary Moreno and the Argentine government have reached
out to foreign companies and their Argentine branches to have discussions similar to those
described in the affidavits of Company X and Company Y.

c. Press reports (Question 42)

48. Previously, Argentina criticized the Complainants for including press reports published by La
Nación and El Clarín as 17 of 734 exhibits supporting their First Written Submissions. Now, in its
written responses to the Panel's Questions, Argentina implicitly acknowledges that most of the
press reports cited by the Complainants do not have any connection to these two newspapers.
However, Argentina belatedly made the much more sweeping argument that "none of the
journalistic material [submitted by Complainants to support their demonstration of the existence of
the RTRR], regardless of its source, can be considered to have any probative value."

49. Argentina does not cite any legal basis for this extreme assertion – and indeed, panels have
been inclined to accept the information provided by newspapers, and especially in cases like the
present one, where the respondent did not challe nge the truth of the facts reported by those
newspapers. Furthermore, in this particular case, there is other evidence confirming the accuracy
of the press reports. Accordingly, Argentina's argument fails.

C. J
APAN'S AS APPLIED CLAIMS AGAINST THE RTRR ARE WITHIN THE SCOPE OF THIS
DISPUTE, CONTRARY TO ARGENTINA'S ASSERTIONS.

50. Previously, Argentina argued that Japan's cl aims against the RTRR were outside the scope of
the dispute because they were not identified in Japan's Consultation Request. The Panel rejected
this argument, finding that "The so-called ‘Restrictive Trade Related Requirements' (RTRRs) were
identified by the complainants as a measure at issue in their respective requests for consultations;
therefore, the inclusion of the RTRRs in their panel requests is not inappropriate and these
measures are within the Panel's terms of reference[]". However, Argentina continues to argue that
Japan's as applied claims against the RTRR are outside the scope of the dispute.

51. There is no basis for Argentina to persist in arguing that Japan's Consultation Request was
somehow defective. The Panel has already found that the Consultation Request properly identified
the RTRR as a measure subject to consultations. There is no legal requirement that requests for
consultations specify whether a measure is being challenged on an as such or an as applied basis.
Because Japan's Consultation Request identified the RTRR, and Japan's Panel Request did not
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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expand the scope of the dispute by challenging the RTRR on an as applied (as well as an as such)
basis, Japan's as applied claim against the RTRR (as well as its as such claim against the RTRR) is
properly within the scope of this dispute.

VI. CONCLUSION

52. Argentina fails to point to any evidence that would undermine Complainants' legal claims. In
most instances, Argentina has not even tried to rebut Complainants' claims on their merits. It has
not denied the existence of the RTRR or the basic facts underlying the Complainants' DJAI-related
claims.

53. Japan continues to respectfully request that the Panel find that the DJAI Requirement is
inconsistent, both as such and as applied, with Articles XI:1, X:3(a) and X:1 of the GATT 1994,
and 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 ILA, and that the RTRR
is inconsistent, both as such and as applied, with Articles XI:1, III:4, and X:1 of the GATT 1994.

ORAL
 STATEMENT AT THE SECOND SUBSTANTIVE MEETING

I. INTRODUCTION

1. Japan will first review the evidence thus far provided by the Complainants and, to a much
lesser extent, the Respondent. Next, Japan will discuss compliance-related issues. Finally, Japan
will turn to the DJAI Requirement, emphasizing again why separate findings are important, and
demonstrating why each of Argentina's attempted rebuttal arguments fails.

II. PRIMA
 FACIE BURDEN AND EVIDENTIARY ISSUES RAISED BY THIS DISPUTE

2. Argentina has thus far failed to even try to rebut many of the core facts at issue in this
dispute. The Panel asked Argentina a series of questions, including Questions 13-14, 16-18, 23,
and 26. Argentina again responded by not re sponding. The Panel noted Argentina's non-
responsiveness in its communication to the Parties of 6 November 2013.

3. The Panel then again instructed Argentina to provide responses to Questions 13-14, 16-18,
23, and 26 in its Second Written Submission. Argentina once again demurred and its Second
Written Submission failed to respond to the Panel's questions for a third time.

4. The Panel has issued two preliminary rulings rejecting Argentina's procedural objections to
Japan's claims against the RTRR. If Argentina continues in its refusal to cooperate, then Japan
considers it would be reasonable to interpret such a failure to cooperate as further confirmation of
the extensive prima facie evidence provided by complainants. With respect to the DJAI
Requirement, the Panel can then infer from Argentina's failure to respond that there are no
relevant limitations on the reasons why each of the government entities participating in the DJAI
system may place observations; and there are no specific provisions in any legal instruments
explaining the reasons for an observation, or the information required to lift it.

III. DEFINITION
 OF THE RTRR MEASURE AND SPECIFIC REQUEST FOR SEPARATE
FINDINGS ON EACH OF JAPAN'S THREE TYPES OF RTRR CLAIMS

5. Japan has made a specific request for findings on each of three separate types of RTRR
claims that it has raised: (i) as such ; (ii) a broader as applied finding, and (iii) findings with
respect to each instances of the RTRR's applicatio n. Japan reiterates that it has established a
prima facie case with respect to each.

A. D
EFINITION OF THE RTRR MEASURE

6. Japan defined the RTRR in its Panel Request and First Written Submission as an Argentine
government measure requiring 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. Japan identified the five types of actions Argentina requires as a prior condition for
permission to imports.
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7. Japan's Panel Request also noted that th e requirements comprising the RTRR are not
themselves stipulated in any published law or regulation. Thus, the RTRR is itself "unwritten", and
Argentina has failed to "published [it] promptly in such a manner as to enable governments and
traders to become acquainted with [it]." By the same token, however, Argentine government
writings explicitly describe the "one-to-one" requirement, which is one element of the RTRR, and a
range of other evidence confirms the same thing. It would be systemically harmful if a WTO
M e m b e r w e r e a b l e t o h i d e b e h i n d t h e l a c k o f t ransparency of its own legal system in order to
defend against the kinds of claims at issue in this dispute, particularly because that very lack of
transparency is part of the problem at hand.

B. J
APAN HAS ESTABLISHED A PRIMA FACIE CASE THAT THE RTRR IS WTO-INCONSISTENT AS
SUCH

8. Japan requests that the Panel find that the RTRR, as such, is inconsistent with Argentina's
obligations under Articles XI:1, III:4, and X:1 of the GATT 1994. This type of finding would
indicate that the RTRR as a whole is inconsistent with WTO law. Accordingly, as such findings
would require that for compliance, Argentina withdraw the RTRR as a whole, and cease any
instances of its application by Argentina including those might occur in the future.

9. Argentina has contested whether the Complainan ts have identified the RTRR with sufficient
precision. Japan recalls its observations about the appropriate definition of the measure at issue,
the very intransparency, arbitrariness and lack of a formal, written basis that characterize it, and
the implications this has for Complainants' obligations to define the measure as precisely as
possible. Japan also recalls the Appellate Body's findings in US – Zeroing (EC) recognizing the
uncertainty as to the content of unwritten measures. And Japan notes, finally, the Panel's second
preliminary ruling, which found that the Complainants "have identified the alleged RTRRs in a
‘sufficiently precise' manner so as to ‘present the problem clearly'". The second preliminary ruling
also found that Japan's definition of the RTRR does not prejudice Argentina's ability to defend
itself. These preliminary findings should put to rest Argentina's arguments about the Complainants'
identification of the RTRR.

10. Argentina also contests whether the Complainants have established the general and
prospective nature of the RTRR. However, the Complainants' Second Written Submissions
demonstrated that there is ample evidence show ing the general and prospective nature of the
RTRR. In particular, the measure is general, in the sense that Argentina could apply it across all
sectors of the Argentine economy. The RTRR has applied prospectively, i.e., on an ongoing basis
since 2009 and continuing into the future.

11. Finally, the absence of specific RTRR-related agreements from the record does not detract
from the Complainants' prima facie case of as such inconsistency. If anything, Argentina's
unwillingness to provide them can be interpreted as further confirmation of the Complainants'
prima facie case.

12. A panel's determination as to whether the prima facie threshold has been met should be
informed, inter alia , by what it is reasonable for the complainants to provide, in light of the
particular circumstances of a dispute. Argentina has sole possession of the specific RTRR-related
agreements and there are real impediments for the Complainants to provide any further
information. Complainants have "diligently exhausted" all other possible ways to substantiate the
content and purpose of these agreements. Accordingly, Japan and the other Complainants have
established that the RTRR is as such inconsistent with Articles XI:1, III:4 and X:1 of the
GATT 1994, and Argentina has not rebutted this argument.

C. J
APAN HAS ESTABLISHED THAT THE SYSTEMATIC APPLICATION OF THE RTRR IS WTO-
INCONSISTENT

13. Japan also asks the Panel to make as applied findings regarding the RTRR's application
collectively. This type of finding would indicate that application of the RTRR has been and
continues to be inconsistent with Argentina's obligations under Articles XI:1, III:4, and X:1 of the
GATT 1994, including those instances that the Complainants have not specifically identified and
including any future application of the RTRR.
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14. The unwritten or de facto character of Argentina's RTRR should not prevent the Panel from
making findings against the systematic application of the RTRR. Argentina does not allege that any
instances of the RTRR's application are consistent with Articles XI:1, III:4, and X:1 of the
GATT 1994. The evidence supporting Japan's as such claim, and to the extent necessary for an as
applied claim such as the one raised by Japan in this dispute, also supports this broad as applied
claim.

D. T
HE INDIVIDUAL INSTANCES OF THE RTRR'S APPLICATION INCLUDING THOSE IDENTIFIED
BY JAPAN AND THE OTHER COMPLAINANTS ARE WTO-INCONSISTENT

15. Japan also asks the Panel to find that each and every instance of the RTRR's application is
inconsistent as applied with the various legal provisions identified in Japan's Panel Request.
Argentina has not attempted to rebut these claims with regard to individual instances of the
RTRR's application.

E. T
HE INTERRELATIONSHIP BETWEEN THE THREE TYPES OF FINDINGS REGARDING THE RTRR

16. Having each of the three types of findings requested by Japan would ensure that the Panel's
findings collectively have the broadest possible coverage, and leave as little room as possible for
Argentina to attempt to implement its compliance obligations in a manner that would continue to
nullify or impair benefits accruing to Japan under the covered agreements. In addition, the three
types of findings would ensure that the Panel develops its factual and legal findings to the
maximum extent possible, which could be important in the event of an appeal. Thus, even though
the requested findings would overlap, they are required to fully resolve this dispute. Japan
reiterates its request that the Panel make separate findings on each.

IV. FINDINGS
 REQUESTED WITH REGARD TO THE DJAI REQUIREMENT AND
ARGENTINA'S FAILURE TO REBUT JAPAN'S CLAIMS

A. J APAN'S REQUESTED FINDINGS WITH RESPECT TO THE DJAI REQUIREMENT

17. Japan requests as such findings with respect to the DJAI Requirement. Such findings would
obligate Argentina to eliminate the requirement to obtain a DJAI in order to import goods into
Argentina. Japan is not requesting separate as applied findings for the DJAI Requirement.

18. In some instances Argentina uses the DJAI Requirement as a tool for implementing the
RTRR, but this is not always the case. They are separate measures and independent of each other.

B. A
RGENTINA HAS FAILED TO REBUT JAPAN'S ARGUMENT WITH RESPECT TO THE DJAI
REQUIREMENT.

19. Argentina has either not rebutted or failed to rebut Japan's and the other Complainants'
arguments with respect to the DJAI Requirement. Japan will address some of Argentina's most
recent statements and submissions in particular.

20. First, the DJAI functions like a non-automatic import license requirement, which a certain
number of Argentine government entities have the power to deny.

21. Second, Argentina has failed to articulate a coherent explanation of the customs purpose
that the DJAI Requirement supposedly serves.

22. Third, the DJAI Requirement is not a conf ormity assessment procedure aimed at ensuring
compliance with Argentina's domestic regulations in other areas. Indeed, if it were, then Argentina
would presumably need to impose a parallel DJAI-like scheme for domestic goods. Argentina does
not even argue that it has done so.

23. Fourth, the DJAI Requirement is not a mere formality. Rather, it is a non-automatic,
discretionary, often arbitrary system for allocating the right to import, which is, if anything, the
very opposite of a mere customs "formality".

24. Fifth, the DJAI Requirement does not implem ent the SAFE Framework, as recently confirmed
by the WCO's 2 December 2013 letter to the Panel.
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25. Sixth, in its Second Written Submission, Ar gentina attempted to demonstrate that the DJAI
Requirement does not have trade effects. As a legal matter, this argument is irrelevant.
Article XI:1 is designed to protect the competitive opportunities of foreign products – not to
guarantee actual trade results. Moreover, as an empirical matter, it is false that the DJAI has not
restricted imports.
26. Thus, all of Argentina's attempted arguments fail.

C. T
HE DJAI REQUIREMENT IS INCONSISTENT WITH ARTICLE XI:1 OF THE GATT 1994

27. Given that the DJAI Requirement is a non-automatic, highly discretionary import licensing
requirement, the analysis under Article XI:1 is rela tively straightforward. The text states that "No
prohibitions or restrictions other than duties, taxes or other charges, whether made effective
through quotas, import or export licenses or other measures, shall be instituted or maintained by
any [Member] on the importation of any product". The DJAI Requirement restricts imports by
making the right to import conditional on obtaining a DJAI. Furthermore, the DJAI Requirement is
not a duty, tax, or other charge. Accordingly, the DJAI Requirement is prohibited by Article XI:1.

1. Article XI:1 is not limited to qu antitative restrictions expressed in
numerical terms

28. According to Argentina, a measure is only a "restriction . . . on importation" within the
meaning of Article XI:1 if it is "expressed in terms of quantity or that are quantifiable in nature."
Argentina acknowledges that this interpretation is inconsistent with the panel reports in India –
Quantitative Restrictions, India – Autos, and Colombia – Ports of Entry.

29. Argentina's interpretation is also contradicted by the text of Article XI. If Article XI only
covered quantitative restrictions "expressed in terms of quantity or that are quantifiable in
nature", then the phrase "duties, taxes or other charges" would have been superfluous.

30. Argentina's argument is also not suppo rted by Appellate Body's statements in China – Raw
Materials. In particular, the (quantitative) "limiting effect" discussed by the Appellate Body can
flow either from a numerical restriction on imports, or from a measure which has a restrictive or
limiting effect on importation. The DJAI Requirement fails in the latter category, and thus is
inconsistent with Article XI.

2. The trade facilitation negotiations do not indicate that Article VIII
shields the DJAI Requirement from the disciplines of Article XI:1

31. Argentina also argues that the recent multilateral negotiations over a possible trade
facilitation agreement support its argument that Article VIII circumscribes Article XI. Because the
text that Argentina refers to was under negotiatio n as of the establishment of the Panel, it cannot
be taken into consideration. Moreover, contrary to Argentina's arguments, there is nothing in the
negotiating text that is inconsistent with Ja pan's interpretation. Thus, Argentina's arguments
regarding the trade facilitation negotiations also fail.

D. A
RGENTINA ADMINISTERS THE DJAI REQUIREMENT IN A MANNER THAT IS INCONSISTENT
WITH ITS OBLIGATIONS 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 ILA.

32. Argentina's Second Written Submission does not discuss Japan's ten claims under the ILA in
any meaningful way. Japan reiterates its request that the Panel issue specific findings on each of
its claims under the ILA.

V. CONCLUSION

33. Argentina's overall approach in this dispute has been to avoid engaging with the facts and
evidence before the Panel, and instead to resort to distractions. The real issue in this dispute is
that Argentina's policies are fundamentally trade-distortive and raise deep commercial, economic
and indeed, even systemic trade concerns – for example about the degree to which a WTO
Member's own intransparency can shield it from WTO legal disciplines and how best to deal with
unwritten measures and de facto policies in terms of a Panel's findings and the implications these
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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will have for the compliance phase. In the context of the EC – Approval and Marketing of Biotech
Products dispute, Argentina urged the Panel to take a strict line on these issues, and to interpret
the law in a manner that would not permit circumvention in the future. Japan wishes to echo these
same concerns in this dispute.
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ANNEX B-7
FIRST PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS OF ARGENTINA*
I. Introduction
1. The complainants in this dispute have advanced claims in respect of: (1) the Advance Sworn
Import Declaration ( Declaración Jurada Anticipada de Importación – DJAI), a customs formality
that Argentina has established in accordance wi th Article VIII of the GATT 1994 to implement the
SAFE Framework of Standards to Secure and Faci litate Global Trade ("SAFE Framework") adopted
by the World Customs Organization (WCO); and (2) the alleged "restrictive trade-related
requirements" (RTRRs). As the complainants have failed to establish a prima facie case of
inconsistency, either in respect of the DJAI procedure or in respect of the alleged RTRRs, Argentina
respectfully requests that the Panel reject the claims of the complainants in their entirety.
2. In respect of the DJAI procedure, the complainants have wrongly interpreted the relevant
legal provisions and have brought claims under multiple provisions of different covered
agreements without clearly distinguishing between the measures, claims and evidence relevant
to each. Moreover, the complainants have failed to meet their burden of proof with regard
to showing that the DJAI procedure has trade-restricting effects on imports which are separate
and distinct from the trade-restricting effects that they seek to attribute to the alleged RTRRs.
3. In relation to the alleged RTRRs, the complainants have failed to prove the existence
of an unwritten "overarching" measure of general and prospective application. Instead, they have
opted simply to ignore the relevant legal standard applicable to their claims.
II. Argentina Objects to the Politically Mo tivated Arguments of the Complainants and
their Disdainful/Disparaging Tone
4. The Argentine Republic is a founding Member of the World Trade Organization (WTO),
its actions comply with the principles and commitments arising from its capacity as a Member
and it actively participates in all of the Organi zation's bodies, as has been stressed on several
occasions by other Members of the WTO. In the present dispute, Argentina has participated fully
in the consultation process and has addressed the concerns expressed by third party Members.
5. In spite of this, the complainants continue to misrepresent Argentina's trade policy
and business environment and set forth their claims in a politically hostile and offensive tone while
disparaging Argentina's good faith participation in the WTO. This insulting attitude and the political
motivations behind it go far beyond the limits of a complaint submitted under the
WTO's Dispute Settlement Understanding.
6. Furthermore, much of the evidence adduced by the complainants is tendentious, unfounded,
inadmissible and irrelevant for the interpretation of the measures at issue. Accordingly, all the
documentary evidence on which the complainants s eek to base their claims should be rejected
and removed from the case file.
III. The Panel should take into Cons ideration Argentina's Economic/Trade
Performance, its Development Model and it s Bilateral Trade Relationship with the
Complaining Countries
7. The absence from the complainants' written submissions of any mention of objectively
verifiable data on Argentina's international trade amounts to a significant concealment. The data
on Argentina's international trade reveal the growing openness of the Argentine economy and the
increase in its imports, including in bilateral trade with the European Union, the United States
and Japan. Given this trade information, the argument that the Argentine Republic is seeking

* This text was originally submitted in Spanish by Argentina.
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to prevent trade deficits by promoting exports and limiting imports is untenable and does not
stand up to the slightest logical analysis.
8. The reality is that, since 2003, Argentina has pursued a macroeconomic policy based on the
growth of foreign demand and the domestic market , supported by strong industrial and productive
development; a dynamic trade policy; and an income policy that promotes social inclusion.
9. The significant increase in imports is objective proof that Argentina is not restricting its
external purchases. The complainants have yet to show how a country can increase its openness
coefficient and its imports, above and beyond co mparable benchmarks, while at the same time
restricting international trade.
10. In fact, the Argentine Republic has increased its imports from all sources by more than those
of the complaining Members and by more than the global average. Moreover, the increase
in its imports from the complaining Members has been as much as four times greater than the
increase in its exports to those Members.
11. In view of the economic and commercial realities, the complainants' allegations are
particularly damaging for Argentina and other developing countries, since the present dispute
is one in which three developed country Members have brought a case against an emerging
country. It would appear that the complainants have filed their claims as a warning to developing
countries that dare to decide their own policies and take measures independently of those dictated
by the developed countries.
IV. The Complainants have Failed to Establish a Prima Facie Case of Inconsistency in
Respect of the DJAI Procedure
A. The complainants have not acce pted the operation of the covered
agreements and the distinction between substantive rules and procedures in
relation to their claims in respect of the DJAI procedure
12. The complainants have based their case on a misunderstanding of the relevant provisions
in relation to the DJAI procedure.
13. The covered agreements draw a sharp distinction between prohibitions and restrictions
on imports, on the one hand, and the administrative procedures, formalities, and requirements
in connection with importation, including those by which such prohibitions and restrictions are
implemented, on the other. This is a distinction between the substantive rules that determine
whether imports are permitted into the territory of a Member (and in what amounts) versus the
procedures that are used to implement those substantive rules.
14. Broadly speaking, Article VIII of the GATT governs formalities or requirements imposed
in connection with importation, while Article XI of the GATT governs substantive rules
of importation that give rise to a quantitative restriction on imports. To the extent that a formality
or requirement imposed in connection with importation constitutes an import licensing procedure,
other than an import procedure required for customs purposes, this procedure is governed by the
Agreement on Import Licensing Procedures (ILP Agreement) as lex specialis relative to the more
general provisions of Article VIII and Article XI.
15. Another difference between these provisions of the covered agreements is that they are
quite different in terms of the disciplines that they impose upon a Member's conduct. To the extent
that a particular rule of importation constitutes a quantitative restriction or prohibition on imports,
it is prohibited altogether by Article XI, subject only to the exceptions set forth in Article XI itself
and the general exceptions set forth in Article XX. Article VIII, by contrast, affirmatively recognizes
the need for Members to maintain formalities and requirements in connection with importation,
including import licensing procedures.
16. The distinction between substantive rules of importation and the procedures by which they
are implemented becomes most apparent in the ILP Agreement, which distinguishes between the
trade-restrictive impact of a substantive rule of importation (which is not governed by the
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ILP Agreement) and the trade-restrictive impact of an import licensing procedure that is used
to implement such a rule (the subject matter of the ILP Agreement).
17. In light of these differences in their respective scope and content, the proper application of
Articles VIII and XI of the GATT and of the ILP Ag reement requires careful attention to how these
provisions relate to any particular set of measures and claims. Above all, it is essential to
distinguish between those measures and claims that pertain to substantive rules of importation, on
the one hand, and those measures and claims that pertain to formalities, requirements, and
procedures connected with importation, on the other. To the extent that a complainant alleges that
a substantive rule of importation and the procedures used to implement that rule violate particular
provisions of the covered agreements, it is necessary first to differentiate between the rule and the
procedure (e.g. in terms of which measures implement the rule and which measures implement
the procedure), and then to assess the rule and the procedure in relation to their respective
disciplines.
18. The need to separate and distinguish between different measures and claims is particularly
important where, as in the present dispute, the complainant alleges that both the substantive rules
of importation and the procedures used to implement those rules have trade-restricting effects.
In such case the complainant must prove that the substantive rule imposes a restriction
or prohibition on imports (e.g. in order to demonstrate that the substantive rule constitutes
a quantitative restriction prohibited by Article XI of the GATT), and separately demonstrate that
the procedures used to implement that rule have trade-restricting effects that are distinguishable
from the trade-restricting effects of the rule itself. To prove a violation with respect to the trade
effects of the procedures, as opposed to the substantive rule, the complainant must show that
these trade effects violate the relevant discipline found within the covered agreements.
19. The fundamental problem with the complainants ' claims and arguments, as reflected in their
first written submissions, is that they have failed to separate and distinguish between the DJAI as
a procedure, on the one hand, and the alleged RTRRs, on the other. In fact, their claims and
arguments are intrinsically contradictory. The complainants repeatedly characterize the DJAI as
a procedure that is used to implement and enfo rce the alleged RTRRs, which the complainants
consider to be distinct measures that limit or restrict trade in violation of Article XI. At the same
time, the complainants contend that the DJAI procedure is itself a quantitative restriction that
violates Article XI. At no point do the complainants distinguish between the alleged
trade-restricting effects of the DJAI as a procedure and the alleged trade-restricting effects of the
alleged RTRRs that the DJAI supposedly implements.
20. Proper delimitation is also crucial with respect to Articles VIII and XI of the GATT, since,
as noted by the panel in China – Raw Materials , it is "appropriate to construe Article VIII
as regulating something different from that addressed by GATT Article XI:1".
1 It is clear from the
context of GATT Articles VIII and XI that these ar e provisions that are mutually exclusive within
their respective disciplines and spheres of application. Article VIII expressly acknowledges the
need for Members to maintain customs formalities, while Article XI prohibits any measure that
constitutes a quantitative restriction (within the meaning of that provision). It cannot be the case
that customs formalities that are permitted under Article VIII are prohibited quantitative
restrictions under Article XI.
21. In addition, the mutually exclusive relationsh ip between Article VIII and Article XI is further
evidenced by the fact that Article VIII already contemplates that customs formalities can have
at least some restrictive effect on trade. In ac knowledging "the need for minimizing the incidence
and complexity of import and export formalities and for decreasing and simplifying import
and export documentation requirements", the draf ters of Article VIII were aware that customs
formalities are potentially an impediment to trade. Because the potential effects of customs
formalities are governed by Article VIII (including as they may be modified by the trade facilitation
negotiations), and because Article VIII envisages that such effects may occur, it cannot be the
case that these same permitted effects render a customs formality a prohibited quantitative
restriction under Article XI. Otherwise, Members could not maintain customs formalities, since they
would be prohibited under Article XI.

1 Panel Report, China – Raw Materials, paragraph 7.831.
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22. Moreover, because Article VIII recognizes that formalities and requirements will have
at least some degree of trade-limiting effect, the separate and independent trade effect of the
procedure must be greater than the trade effect that one would ordinarily associate with
a procedure of its nature. The stringent application of these standards is required to ensure that
import formalities and requirements – which are an ordinary and necessary feature of international
trade and expressly permitted under Article VIII – are not classified as prohibited
quantitative restrictions.
B. The DJAI procedure is a customs fo rmality under Article VIII of the GATT
23. The DJAI procedure is a formality or requ irement imposed by governmental authorities
in connection with importation and is therefore subject to Article VIII of the GATT, which covers all
formalities and requirements imposed "in connection with importation", including "documents,
documentation and certification". Article VIII recognizes the need for Members to maintain import
formalities and requirements for the purposes of implementing and enforcing their domestic laws,
and recognizes "the need for minimizing the incidence and complexity of import and export
formalities and for decreasing and simplifying import and export documentation requirements".
24. It is an undisputed fact that the DJAI procedure is a procedure. The DJAI is an advance
electronic information procedure aimed at facilitating the customs control functions of the
Directorate-General of Customs ( Dirección General de Aduanas – DGA), a subdivision of the
Federal Public Revenue Administration ( Administración Federal de Ingresos Públicos – AFIP),
on the basis of the concepts of risk assessment and management, thereby allowing it to address
and mitigate risk, in accordance with the SAFE Framework of the WCO, without unnecessarily
hindering international trade.
25. Through the DJAI procedure, AFIP collects advance information that is relevant to the
exercise of its customs control function, such as the identity of the importer and its agent,
the volume, value, and origin of the merchandise, and its customs classification. On the basis
of such advance information, AFIP, in conjunction with other participating agencies with
complementary control authority, assesses and ma nages risk. The DJAI essentially allows AFIP
to identify high-risk consignments in advance, and allocate resources more efficiently.
The DJAI procedure also informs AFIP's work in developing and implementing a more robust risk
management system. Prominent among the change s implemented on the basis of information
collected through the DJAI procedure is the develo pment of a scoring system for risk assessment.
The DJAI procedure also allows AFIP to allocate its resources more efficiently.
26. The complainants mistakenly attribute to the DJAI procedure a number of import-restrictive
objectives which are completely alien to the instrument. The DJAI procedure does not contain any
substantive rules governing the importation of goods into Argentina. On the contrary,
the DJAI procedure is linked to laws and regulations contained elsewhere in Argentina's legal
regime. The DJAI procedure simply anticipates customs information that previously would have
been provided only upon the initiation of customs clearance procedures.
27. It is important to note that, contrary to the complainants' suggestion, the DJAI procedure
does not provide participating agencies with "u nfettered" discretion to make "observations"
and prevent imports. Their participation is confin ed to the functions assigned to each specific
agency by law.
28. Given that the complainants have brought no claims under Article VIII in this dispute,
this should end the Panel's analysis in respect of the DJAI procedure.
C. The DJAI procedure is not an import licensing procedure subject to the
disciplines of the ILP Agreement
29. The complainants have alleged that the DJAI procedure is a non-automatic import licensing
procedure used for other than customs purpos es that is subject to the ILP Agreement.
However, Article 1.1 of the ILP Agreement makes clear that, in order to constitute an "import
licence", a given measure has to fulfil two cumulative requirements. First, it must
be "administrative procedures [defined as 'licensing' or other similar procedures] used for the
operation of [an] import licensing regime". Second, these administrative procedures must require
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"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".
30. With respect to the first requirement, the DJAI procedure is not a "licence" of any kind,
and thus there should be no issue as to whether it is an "import licensing procedure" subject to the
provisions of the ILP Agreement.
31. As recognized by the panel in Turkey – Rice, importation is a very complex process in which
a number of different documents, certificates, invoices, and other paper or electronic formalities
are required for the purpose of verifying complian ce with a wide variety of legal requirements.
Without these documents, certificates, or electronic formalities WTO Members will not allow
importation to be effected. This does not automatically convert any formalities which operate
as a prerequisite for importation into "licences" under Article 1.1 of the ILP Agreement.
32. In Argentina's view, the term "licences" under the ILP Agreement must be used for the
operation of "import licensing regimes", which relates to the administration of quantitative
restrictions or other similar measures. The complainants have failed to demonstrate that the DJAI
procedure is "used for the operation of import licensing regimes" and therefore have failed to
demonstrate that it constitutes a "licence" subject to the disciplines of the ILP Agreement.
33. With respect to the second requirement, even if the Panel were to find that
the DJAI procedure could be considered a "licence", as previously explained, the DJAI was created,
and is used, by the AFIP "for customs purpos es" and hence does not fall within the scope
of the ILP Agreement.
34. Finally, even if the Panel were to conclude that the DJAI procedure is a licensing procedure
that is within the scope of the ILP Agreement, un der Article 3.2 of this Agreement, to establish
a prima facie case the complainants would need to demonstrate that the DJAI procedure has
trade-restrictive or distortive effects on imports additional to those caused by the imposition of the
underlying restriction, which the complainants consider (at least implicitly) to be the
alleged RTRRs.
35. This is where the complainants' claims and arguments become particularly incoherent.
Notwithstanding their repeated assertions that the DJAI procedure is a non-automatic import
licensing procedure used to implement the alleged RTRRs, the United States and the
European Union argue that the DJAI procedure is per se inconsistent with Article 3.2 because
it is not used to implement any restriction at all . In their view, this means that any
trade-restricting effects of the DJAI procedure can be attributed entirely to the DJAI procedure,
and not to any underlying restriction that it is used to implement. This internal contradiction
is illustrated by the European Union's assertion in one part of its written submission that
the DJAI procedure is used "as a tool in order to impose on importers commitments that are often
trade-restrictive themselves", and its contradictory assertion in a later part of its submission that
the DJAI procedure "is not a 'tool' used for the implementation of an 'underlying'
quantitative restriction".
36. Japan, for its part, does not even attempt to distinguish between the DJAI procedure
and the alleged RTRRs that it is allegedly used to implement. Instead it employs the arguments
made under GATT Article XI:1 about the DJAI procedure, including the assertion that it restricts
trade because it is used to implement the alleged RTRRs. It then asserts, quite categorically,
that the DJAI procedure "has trade-restrictive or distortive effects on imports", and that "this fact
alone is enough to be 'additional to those caused by the imposition of the restriction'" under the
standard prescribed by Article 3.2 of the ILP Agreement. At no point does Japan distinguish
between the effect of the DJAI procedure and the effect of the alleged RTRRs that it allegedly
implements, let alone present any evidence of the separate and additional trade-restricting effects
of the DJAI procedure, as required by Article 3.2.
37. Once again, the complainants cannot have it both ways. For their part, the United States
and the European Union cannot seek to attribute the trade-restricting effects of the alleged RTRRs
to the DJAI procedure for the purpose of arguing that the DJAI procedure is a quantitative
restriction under Article XI:1, but then argue under Article 3.2 of the ILP Agreement that the
alleged trade-restricting effects of the DJAI procedure result entirely from the procedure itself
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and not from the alleged RTRRs. If, as they claim, the DJAI procedure is a non-automatic import
licensing procedure used to implement the alleged RTRRs, then the complainants must
demonstrate under Article 3.2 of the ILP Agreement that the DJAI procedure has trade-restricting
effects additional to those caused by the alleged RTRRs. The United States and Japan have not
even attempted to make this showing, and the Eu ropean Union has sought to make this showing
only in misleading and circular terms.
38. To sum up, the Panel must require the compla inants to assume the burden of establishing
a prima facie case under Article 3.2 of the ILP Agreement to show that the DJAI procedure has
trade-restrictive effects additional to those caused by the alleged underlying RTRRs which
the DJAI procedure is allegedly used to implement. The complainants have failed to satisfy this
burden of proof.
D. The complainants have failed to establish a prima facie case of inconsistency
under Article XI:1 of the GATT in respect of the DJAI procedure
39. As previously discussed, Article XI:1 governs substantive rules of importation or exportation.
It is an undisputed fact that the DJAI procedure is not a substantive rule of importation but a
procedure. This is the necessary foundation for the complainants' claims under the ILP Agreement,
which "relates to import licensing procedures and their administration, not to import licensing
rules". If the complainants maintain that the DJAI procedure is a non-automatic import licensing
procedure subject to the ILP Agreement, then th ey cannot simultaneously maintain their claims
under Article XI in respect of the DJAI procedure, because the ILP Agreement is lex specialis in
relation to the trade effects of import licensing procedures. Moreover, the complainants have not
alleged, let alone demonstrated, that the measures establishing the DJAI procedure contain any
substantive rules that affect importation. Consequently, the DJAI procedure is not subject to
Article XI:1 of the GATT.
40. Furthermore, as explained in the precedin g paragraphs, the DJAI procedure is a customs
formality used to monitor the risk of non-compliance with substantive rules of importation set forth
elsewhere in Argentine law. As was pointed out, Argentina does not consider that customs
formalities can be assessed under Article XI of the GATT. To the extent that customs formalities
h a v e s o m e e f f e c t o n t h e q u a n t i t y o r v o l u m e o f imports, that effect must be assessed under
Article VIII or, where appropriate, under the IL P Agreement. Nevertheless, if the Panel were
to conclude that customs formalities are subjec t to assessment under Article XI:1 of the GATT,
then the Panel would have to determine how to assess the alleged trade-restrictive effects
of the DJAI procedure under Article XI:1.
41. Article XI:1 of the GATT relates to the "general elimination of quantitative restrictions".
Import formalities and requirements can be considered a prohibited quantitative restriction under
Article XI to the extent that: (1) they limit the quantity or volume 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 (2) this separate
and independent trade-restricting effect is greater than the effect that would ordinarily
be associated with a formality or requirement of this nature.
42. This is the basis for the distinction betw een Articles VIII and XI of the GATT suggested
by the reports of the panels in Korea – Various Measures on Beef and China – Raw Materials .
Article VIII governs the procedures used to implement substantive rules – with the aim
of "minimizing the incidence and complexity of import and export formalities and for decreasing
and simplifying import and export documentation requirements", whereas Article XI:1 is concerned
with the trade-restricting effects of the substantive rules of importation (or exportation).
Article XI:1 clearly distinguishes between the quanti tative "prohibitions" and "restrictions" that are
the subject of this provision and the manner in which such prohibitions and restrictions are "made
effective". What is prohibited under Article XI:1 are the quantitative restrictions and prohibitions
themselves, not the means by which they are made effective. As is evident from the reference
to "other measures", the method by which a particular quantitative restriction or prohibition
is implemented is immaterial to Article XI:1.
43. Thus, for a procedure to be inconsistent with Article XI, the complainant must prove that the
procedure limits the quantity or volume of im ports (or exports) separately and independently
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of the trade-limiting effect of the underlyin g measure which it implements. With respect
to the DJAI procedure, any assessment under Article XI:1 would require the complainants
to demonstrate, at a minimum, that the DJAI procedure has a limiting effect on the quantity
or volume of goods imported into Argentina, sepa rate and apart from the limiting effects that the
complainants seek to attribute to the alleged RTRRs under Article XI:1, and separate and apart
from the ordinary and incidental effects of su ch formalities. The complainants have failed
to demonstrate such an effect.
44. In addition, Article XI:1 of the GATT relates to prohibitions and restrictions that are
"quantitative" in nature. The Appellate Body in China – Raw Materials observed that "the use
of the word 'quantitative' in the title of the provision informs the interpretation of the words
'restriction' and 'prohibition'" and, consequently, it is appropriate to consider that Article XI of the
GATT 1994 covers "those prohibitions and restrictions that have a limiting effect on the quantity
or amount of a product being imported or exported".
2 It follows that a complainant making claims
under this provision must show that a particular measure institutes or maintains a "prohibition"
or "restriction" on imports or exports that has a "limiting effect on the quantity or amount
of a product being imported or exported". The complainants have not provided any evidence
in this respect.
E. The complainants have failed to establish a prima facie case under
Articles X:1 and X:3(a) of the GATT with respect to the DJAI procedure
45. The complainants have also failed to establish a prima facie case that Argentina has acted
inconsistently with Articles X:1 and X:3(a) of the GATT with respect to the publication
and administration of certain aspects of the DJAI procedure.
46. In order to show a violation of Article X:1, the complainants must demonstrate that
Argentina has made effective "laws, regulations, judicial decisions and administrative rulings
of general application", and that it has not "published [them] promptly" in such a manner
as to enable governments and traders to become acquainted with them. The complainants have
failed on both counts.
47. The complainants have failed to establish that specific aspects of the DJAI procedure which
they challenge under Article X:1 are measures "of general application". There is no "universal" set
of criteria that applies to all goods, because distinct goods and distinct import transactions pose
distinct risks. The observations made by each participating agency are not therefore measures
of "general application", but rather administrative requests for supplementary information that are
made on a case-by-case basis, depending on the information provided by the declarant.
48. Moreover, Argentina has promptly published the statutory authority of each agency that
participates in the DJAI procedure and has adopted a standardized model of the accession
instrument ( Convenio de Adhesión ) on the basis of which each agency may accede
to the DJAI procedure. Information concerning the agencies that participate in each DJAI is readily
available to the customs broker or importer in the "My Customs Operations" ( Mis Operaciones
Aduaneras – MOA) window of the AFIP website.
49. As regards the complainants' claims under Article X:3(a), they reflect the same
misunderstanding of the basic obligations that apply, on the one hand, to substantive rules
governing importation into Argentina and, on the other hand, to the administration of those rules.
These claims should be rejected in their entirety.
50. In EC – Bananas III, the Appellate Body held that the text of Article X:3(a) "clearly indicates
that the requirements of 'uniformity, impartiali ty, and reasonableness' do not apply to the laws,
regulations, decisions and rulings themselves, but rather to the administration of those laws,
regulations, decisions and rulings".
3 To the extent that a Member's challenge relates to the
substantive content of these types of measure, "the WTO consistency of such substantive content
must be determined by reference to provisions of the covered agreements other than Article X
of the GATT 1994". 4 The Appellate Body underscored the gravity of allegations that a Member

2 Appellate Body, China – Raw Materials, paragraph 320.
3 Appellate Body Report, EC – Bananas III, paragraph 200.
4 Appellate Body Report, EC – Poultry, paragraph 115.
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acted in a biased or unreasonable manner, and for this reason "the evidence adduced by the
complainant in support of it, should reflect the gravity of the accusations inherent in claims under
Article X:3(a)".
5
51. Applying these standards against the complainants' claims under Article X:3(a)
and supporting evidence, it becomes clear that the complainants have failed to meet this burden.
To begin with, Argentina's alleged failure to publish the criteria pursuant to which each
participating agency may make observations under the DJAI procedure could only entail
an inconsistency under Article X.1 of the GATT, which deals with publication requirements, and not
under Article X:3(a), which establishes disciplines for the administration of measures
of general application.
52. More importantly, the complainants' claims concerning Argentina's alleged exercise
of discretion to authorize imports by operators that have undertaken to comply with certain
trade-restrictive requirements do not refer to the administration of rules of general application,
but rather to substantive rules which allegedly govern importation of goods into Argentina.
As mentioned above, the Appellate Body has indicated that the WTO consistency of such
substantive rules must be assessed under other provisions of the covered agreements.
53. Finally, the United States adds, on the basis of a single "sworn affidavit" by an anonymous
company executive, that Argentina's administration of the DJAI procedure is not uniform, impartial
and reasonable because the same importer has had DJAIs "exited" and DJAIs "observed"
in comparable situations. However, as the Appellate Body stated in EC — Selected Customs
Matters, "… non-uniformity or differences in administrative processes do not, by themselves,
constitute a violation of Article X:3(a)".
6
V. The Complainants have Failed to Establish a Prima Facie Case of Inconsistency in
Relation to the Alleged "Restrictive Trade-Related Requirements"
A. The European Union, Japan and th e United States have impermissibly
expanded the scope of the dispute in relation to the alleged "Restrictive
Trade-Related Requirements" or "RTRRs"
54. There is a glaring inconsistency between the complainants' requests for consultations
and their panel requests. The European Union, Ja pan, and the United States each have entire
sections of their panel requests devoted to what they call "Restrictive Trade-Related
Requirements" (RTRRs). This is a term which does not appear in any of the complainants' requests
for consultations, and seems to have been jointly invented by the complainants for purposes
of their panel requests. The new measures are separate and legally distinct from the measures
included in the complainants' consultations requests, inasmuch as they bear no relationship
whatsoever to the measures actually identified in those requests.
55. The measures identified by the complainants in their requests for consultations are confined
to the DJAI and Import Certificates ( Certificados de Importación – CI). In their requests for
consultations the complainants explain that these "measures" are maintained through specific
"legal instruments", which are identified in the Annexes to each of the consultations requests.
The complainants also mention in their consultations requests certain "commitments" that
Argentina allegedly requires importers to undertake , as well as the alleged relationship between
these "commitments" and the issuance of CIs and the approval of DJAIs.
56. There is no reference whatsoever by any of the complainants to the alleged "commitments"
as independent "measures" that might be subject to challenge, or to any other "legal instruments"
– written or unwritten – providing for such measures. Rather, the complainants' description of the
"commitments" appears to be nothing more than a discussion of purported evidence relating to the
allegedly "non-transparent" issuance of CIs and approval of DJAIs.
57. Thus, nothing in the text of the consultations requests gives any indication that
the complainants would be bringing claims in respect of measures related to the alleged

5 Appellate Body Report, United States – Oil Country Tubular Goods Sunset Reviews, paragraph 217.
6 Appellate Body Report, EC – Selected Customs Matters, paragraph 224.
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"Restrictive Trade-Related Requirements". Thus, the complainants' requests for consultations did
not allow Argentina to anticipate reasonably the scope of the dispute or prepare its defence
in relation to the alleged "Restrictive Trade-Related Requirements" that the complainants are now
seeking to challenge.
58. In relation to the complainants' uniform failure to identify in their consultations requests the
broad unwritten measure that they are all now attempting to challenge, Argentina considers this
omission to be particularly problematic given both the nature of the measure and the nature of the
complainants' claims in respect of that measure. In light of the Appellate Body's statements about
the clarity with which unwritten measures should be identified in the context of a panel request,
it is difficult to imagine that a responding party would not, at the very least, be entitled to notice
in the request for consultations that such a measure was potentially subject to challenge in the
dispute. This is precisely the case in the present dispute in which the unwritten measure is subject
to "as such" or other equally broad claims.
59. Under the provisions of Articles 4 and 6 of the DSU and pursuant to the interpretation
of previous panels and the Appellate Body, the addition of these new measures impermissibly
expands the scope of the dispute and changes it s essence and, accordingly, the measures are
outside the Panel's terms of reference.
B. Argentina was surprised by the Panel' s decision to issue a preliminary ruling
on whether the alleged "RTRRs" are with in its terms of reference before the
First Substantive Meeting
60. In light of the well-founded arguments developed in its first written submission, Argentina
was surprised to hear of the Panel's very summary decision to issue a preliminary ruling on
whether the alleged "RTRRs" are within its terms of reference before the First Substantive Meeting,
without Argentina having first been offered an opportunity to respond to the complainants'
submissions concerning its timely jurisdictional objections. It is a sign of the importance of
jurisdictional challenges that the clear trend in recent dispute settlement proceedings has been to
allow for comprehensive briefing on such issues before the panel renders its preliminary ruling.
61. The Argentine Republic disagrees with the Panel's decision to defer a ruling on other
jurisdictional objections. Considering that this question is of crucial importance within the context
of this case, Argentina respectfully requests the Panel to rule as a matter of urgency on the
following: (1) with respect to the "as applied" claims, and (2) on how the alleged 23 separate
measures which the EU identifies "in the alternative" could possibly be within the terms
of reference when, although they predate the co nsultations request, they were not the subject
of consultations.
62. The settling of these questions will provide th e necessary certainty with respect to the points
at issue. This will undoubtedly make it easier to address them within the context of the
present case.
C. The complainants have failed to establish a prima facie case with respect to
the alleged RTRRs
63. Notwithstanding its concerns with the Panel's preliminary rulings, the Argentine Republic
considers that the ruling in question has provided some needed clarity with regard to the nature
of the complainants' challenges. In its preliminary ruling, the Panel referred to the claims relating
to a "single overarching RTRR measure" and considered that all of the complainants were
challenging this measure "as such".
64. The complainants expressly acknowledge that the "overarching RTRR measure" they are
challenging is an "unwritten measure". When an unwritten measure is challenged within the WTO,
the burden of proof on the complaining party to establish the existence of that measure is a great
deal more exacting than when it is a written measure that is being challenged. In particular,
the practice of "zeroing" on the part of the United States remains the only instance in the history
of the WTO dispute settlement mechanism in which an unwritten measure was found to be the
proper subject of a WTO challenge. Given this history, and the complainants' leading role in it,
it is nothing short of remarkable and reflects a striking omission that not one of them has even
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acknowledged the legal standards and heavier burden of proof that govern the claims in respect
of the unwritten "overarching RTRR measure" made in their first written submissions.
65. The most recent instance of a panel being faced with a claim regarding an unwritten
measure was in EC – Aircraft. In that case, drawing on relevant Appellate Body rulings, the panel
explained that a panel "must not lightly assume [the] existence" of an unwritten measure. 7
Rather, a panel must "carefully and rigorously" examine the evidence and arguments advanced by
the complainant, with a view to assessing whether "at least the precise content of the alleged
unwritten measure, that it is attributable to th e responding Member and that it has general and
prospective application" has been clearly established. 8 It is only by satisfying this "high threshold"
that a complainant will succeed in establishing the existence of the challenged measure. 9
Conversely, where any one of the above elements cannot be established, the complaining party
will have failed to make its case.10
66. On applying this evidentiary standard to the alleged "overarching" RTRR measure,
Argentina considers that the complainants have failed to meet their burden in at least two crucial
respects. Firstly, the complainants have failed to establish the precise content of the alleged
"overarching" RTRR measure. According to the complainants, the unwritten "overarching" measure
they seek to challenge consists of various requirements that Argentina allegedly imposes
on various "economic actors", all of which, in their turn, "are not stipulated in any published law
or regulation". Thus, the validity of the case depend s, firstly, on establishing the existence of each
of these various different unwritten requirements and, secondly, on demonstrating that these
unwritten requirements somehow constitute a distinct "overarching" measure of general
and prospective application. The mere articulation of the case framed by the complainants
illustrates the complexity of the burden of proof with which they are faced.
67. In its first written submission, Argentina explained the reasons why the Panel should
discount the evidentiary weight of the merely ci rcumstantial and speculative evidence produced
by the complainants in their effort to esta blish the existence of the alleged overarching
RTRR measure. What is more, even if despite its blatant weaknesses all of the evidence produced
were to be taken into account, the complainants could only hope to demonstrate a series
of unrelated "isolated" actions whose content varies so widely that it is insufficient even
to demonstrate the content of a series of distinct requirements, let alone a single "overarching"
RTRR measure.
68. In fact, rather than demonstrating the existence of an "overarching" RTRR measure,
the evidence on the record demonstrates that no such measure exists. By seeking to transform
a series of alleged distinct and unrelated "isolate d" commitments, first into a series of individual
unwritten "requirements", and then into a single "overarching" measure, the complainants are
seeking to avoid their burden of proof with respect to the alleged "single, overarching"
RTRR measure that is the subject of their clai ms. Remarkably, among the 734 exhibits jointly
produced by the complainants there is not a si ngle piece of evidence seeking to demonstrate
whether and to what extent the precise content of this overarching measure differs from the
content of the various alleged unwritten requirements that supposedly comprise it.
Argentina therefore respectfully requests that the Panel find that the complainants have failed
to meet their burden of proof in this respect.
69. Secondly, the complainants have failed to demonstrate that the alleged single overarching
"RTRR" measure they challenge has general and pr ospective application. The evidence produced
by the complainants clearly falls short of demonstrating the existence of a generally applicable rule
or norm governing the importation or sale of all goods in Argentina. More importantly, the Panel
will search the record in vain for evidence that the alleged overarching "RTRR" measure is meant
to have prospective application. As anticipated, even assuming that all of the evidence were
to be taken into account, in spite of its blatant shortcomings, that evidence would reflect nothing
more than a number of "isolated" actions and would fail to show that the Argentine Government
was enforcing any sort of prospective measure. In and of themselves, the alleged commitments

7 Panel Report, EC and certain member States – Large Civil Aircraft, paragraph 7.520.
8 Panel Report, EC and certain member States – Large Civil Aircraft, paragraph 7.520. See also
Appellate Body Report, US – Zeroing (EC), paragraph 198.
9 Panel Report, EC and certain member States – Large Civil Aircraft, paragraph 7.520.
10 Panel Report, EC and certain member States – Large Civil Aircraft, paragraph 7.520.
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described by the complainants do not have any normative content at all, since they neither require
nor entail prospective courses of action.
70. Finally, the Argentine Republic emphasizes and reiterates that the complainants cannot
ignore the consequences of their decision to advance claims against a single unwritten
"overarching" RTRR measure. The Argentine Republic therefore respectfully requests that the
Panel reject in limine the complainants' attempt to assert into existence an amorphous
and ill-defined "overarching" RTRR measure.
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ANNEX B-8
SECOND PART OF THE EXECUTIVE SUMMARY OF THE ARGUMENTS OF ARGENTINA*
SECOND WRITTEN SUBMISSION

1. There are two measures at issue in this dispute: the so-called "Restrictive Trade-Related
Requirements" measure ("RTRR") and the Advanced Sworn Import Declaration (Declaración Jurada
Anticipada de Importación) (the "DJAI procedure"). The Argentine Republic will demonstrate in this
submission that the complainants' claims in re spect of these two measures are unfounded and
must be rejected by the Panel.
I. The Complainants' "As Applied" and "Alter native" Claims Are Outside the Panel's
Terms of Reference
2. The European Union has explained that it "is not challenging … separate instances
of application" of the alleged "overarching" meas ure. Rather, it is challenging, as "separate
measures", and expressly in the alternative, 23 "specific instances where the Argentine
Government has imposed some RTR requirements on individual economic operators." It has
to be acknowledged that the European Union appears to have understood that if it fails to establish
the existence of the "overarching RTRR measure", then it would necessarily follow as a matter
of logic that it would not be able to demonstrate the "application" of that non-existent measure.
3. Although the Panel agrees with the Europe an Union that the description of the alleged
"commitments" in its request for consultations covers the "overarching" RTRR measure that
the European Union seeks to challenge, it cannot be the case that this same language also
encompasses 23 separate measures involving "certain specific instances" of alleged government
action against "individual economic operators". It is precisely because the form and nature
of an unwritten measure are substantially different from the form and nature of a written measure
or a measure involving a specific instance of alleged governmental conduct that the Appellate Body
has deemed it necessary to articulate clear standards for panels to evaluate whether complainants
have established the existence of such unwritte n measures. The fact that the European Union
expressly raises its claims in respect of these 23 measures "in the alternative" to what can only be
interpreted as an "as such" claim against the "o verarching RTRR measure" also makes clear that
it has impermissibly expanded the scope of this dispute. This being the case, the Panel should
conclude that these measures and the EU's alternative claims in respect of these measures are
outside its terms of reference.
4. The same conclusion is warranted with respect to Japan's "as applied" claims, given that
Japan failed to identify any measure subject to its "as applied" claims in its request for
consultations. Japan explained in response to Panel question 2 that it was not required to identify
specific instances of application covered by its "as applied" claims because it is asking the Panel
to "express the WTO-inconsistency of any application of the measure".
5. Given the apparent breadth of Japan's "as applied" claims, the Argentine Republic fails
to understand how these claims are separate and distinct from its "as such" claim with respect
to the alleged "overarching" measure. This confusion seems to be shared by the Panel, which
noted in its Preliminary Ruling that Japan's "as applied" claims "[seem] to be part of a broad
argument against the RTRRs and not a separate articulation of claims against the RTRRs
'as applied'". Leaving aside this lack of clarity, on which the Panel obviously agrees, Japan's
failure, in its request for consultations, to identify specific measures covered by its "as applied"
claims should place these claims outside the Panel's terms of reference.

* This text was originally submitted in Spanish by Argentina.
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II. The Complainants Have Failed to Make a Prima Facie Case in Respect of the
"Overarching" RTRR Measure They Challeng e Because They Have Not Met the High
Threshold for Establishing the Existence of an Unwritten Measure
A. Introduction
6. On the basis of the complainants' written subm issions and their oral statements at the first
substantive meeting, it is now clear that all three of the complainants are challenging a single
"overarching RTRR measure" in this dispute. Un questionably, moreover, the single "overarching
RTRR measure" they are challenging, and its alleged constituent parts, are unwritten.
7. As discussed in detail below, Panel and Appellate Body jurisprudence makes it clear that
a complainant's burden of proof when seeking to challenge an unwritten measure is exacting. Yet
not one of the complainants, either in their lengthy first written submissions or in their opening
statements at the first substantive meeting, has even acknowledged the legal framework that
the Panel must apply to determine whether they have, in fact, met this burden. The complainants
apparently hope that their silence will lead the Panel to conclude that there is nothing unusual
about their claim in respect of the single "overarching RTRR measure" they are challenging and
to treat it no differently than any other common or ordinary claim before the WTO. But the
complainants' claim is, in fact, quite extraordinary.
8. The complainants have come before the Panel to challenge a single overarching unwritten
measure whose content consists of various other measures, which themselves are acknowledged
to be unwritten and whose very existence is also in dispute. Argentina will proceed to demonstrate
that the complainants have not come close to meeting the "high threshold" for establishing the
existence of the single, "overarching RTRR measure" they challenge.
B. The Appellate Body Has Established a "High Threshold" for Demonstrating
the Existence of an Unwritten Measure
9. In US – Zeroing (EC) , the Appellate Body explained that "we see no basis to conclude that
'rules or norms' can be challenged, as such, only if they are expressed in the form of a written
instrument". However, the Appellate Body also explained that "a panel must not lightly assume"
the existence of an unwritten measure. On the contrary, "[p]articular rigour is required on the part
of a panel to support a conclusion as to the exis tence of a 'rule or norm' that is not expressed
in the form of a written document".
10. The Appellate Body stated that in order to support a finding as to the existence
of an unwritten measure of general and prospectiv e application, "a complaining party 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 indeed, that it does have
general and prospective application". Only by me eting this "high threshold" and putting forward
"sufficient evidence with respect to each of these elements" can a complainant establish the
existence of an unwritten measure that may be challenged "as such".
11. In order to demonstrate just how far the comp lainants in this dispute are from establishing
the existence of an unwritten measure pursuant to the Appellate Body's standard, it is worth
examining the few other WTO dispute settlement cases where the complainants have attempted
to challenge unwritten measures.
1. US – Zeroing (EC) and US – Zeroing (Japan)
12. In US – Zeroing (EC) , the European Union challenged, "as such", the consistency
of the United States' unwritten "z eroing methodology" with Arti cle 2.4.2 of the Anti-Dumping
Agreement, and the Panel agreed with the European Union that it was not consistent. The Panel
disagreed with the US argument that the "zeroing methodology" was an "abstraction". The Panel
found that the unwritten "zeroing methodology" was manifested in the "Standard Zeroing
Procedures", a reference to specific written lines of computer code contained in the Standard
AD Margin Program. The Panel explained that, under the "Standard Zeroing Procedures",
the United States Department of Commerce (USD OC) "invariably" excluded any consideration
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of transactions where the export price exceeded normal value, when calculating the overall
dumping margin.
13. There was also substantial evidence of the "general and prospective application" of the
"zeroing methodology". The Panel found that the "Standard Zeroing Procedures" were "a constant
feature of the computer program[s] used by USDOC to perform dumping margin calculations".
In fact, the United States was unable to identify a single instance where USDOC had ever given
a credit for non-dumped sales over a period of several decades.
14. In the light of the substantial evidence co ncerning the precise content of the "zeroing
methodology", as well as its general and prospective application, the Appellate Body upheld
the Panel's finding that the "zeroing methodology" was an unwritten measure properly subject
to challenge and inconsistent, "as such", with the Anti-Dumping Agreement. The Appellate Body
reached the same conclusion in US – Zeroing (Japan).
2. Thailand – Cigarettes (Philippines)
15. In Thailand – Cigarettes (Philippines) , the Panel recognized that "the burden of proving the
existence of an unwritten norm or rule … is rather high, specifically because of the very fact that
it does not exist in the form of a written document". In that case, the Panel was not convinced that
the complainant had set forth sufficient evidence to satisfy the "high standard" established
by the Appellate Body. For example, the Panel found the statements in one of the memoranda
relied on by the Philippines to be "too broad and vague to be considered as constituting a rule or
norm systematically rejecting declared transaction values or using the deductive valuation
method." The Panel also found that the secondary evidentiary sources offered by the Philippines
were not sufficient, in the absence of other direct evidence, to prove the existence of an unwritten
general rule or norm.
16. In the light of the flaws in the compla inant's evidence, the Panel concluded that
the Philippines had failed to prove that the alleged measure was generally applicable, and also
noted that the Philippines had acknowledged that it did not know whether the alleged general rule
would apply in future cases. The Panel conclu ded that the Philippines had not discharged its
"rather high" burden of proving that Thailand maintained an unwritten rule.
3. EC and certain member States – Large Civil Aircraft
17. In the most recent WTO dispute to addre ss a complainant's challenge to an unwritten
measure, EC and certain member States – Large Civil Aircraft , the Panel once again found that the
complainant had failed to meet the "high threshold" established by the Appellate Body.
18. In EC and certain member States – Large Civil Aircraft , the United States sought
to challenge what it characterized as the so-called LA/MSF "Programme". The United States
alleged that the LA/MSF "Programme" was an unwritten measure pursuant to which the European
Union and certain of its member States were providing Airbus, in a systematic and methodical
manner, with launch aid subsidies for the purpose of developing and launching large civil aircraft.
The United States explained that it was not seeking to challenge the LA/MSF "Programme"
"as such", but the Panel found that the standard established by the Appellate Body
in US – Zeroing (EC) was nonetheless applicable.
19. After carefully examining the evidence subm itted by the United States in the light of
the Appellate Body's standard, the Panel was not convinced that the United States had met the
"high threshold" required to demonstrate the ex istence of an unwritten measure of general and
prospective application. Despite its "clear understanding" of the precise content of the alleged
measure, the Panel concluded that the multiple individual LA/MSF contracts did not constitute
sufficient evidence to demonstrate the existence of an unwritten LA/MSF "Programme" pursuant
to which the European Union and certain of its member States were providing launch aid subsidies
to Airbus, "in a systematic and methodical way", for the purpose of developing and launching large
civil aircraft. The Panel explained that the "repet ition of government action over time does not
necessarily prove that the government has adopted a general rule governing its future conduct".
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20. The Panel also examined various st atements made by the Member States,
the European Commission and Airbus officials that were submitted by the United States
as evidence of the existence of the challenged LA/MSF Programme. Finally, the Panel concluded
that, while "[s]ome pieces of evidence appear no t to be inconsistent with the existence of an
unwritten Programme of the kind described by the United States", there was "no piece or category
of evidence … [that] positively demonstrates the existence of the alleged unwritten
LA/MSF Programme".
C. The Complainants Have Failed to Establish the Precise Content and the
General and Prospective A pplication of the Alleged Unwritten "Overarching
RTRR Measure"
21. Applying the Appellate Body's evidentiary standard to the alleged unwritten "overarching
RTRR measure", Argentina considers that the complainants have failed to establish the precise
content of the alleged "overarching measure" they challenge, or that it is of general and
prospective application. The complainants' claims in this case do not merit comparison with the
challenge to the unwritten "zeroing methodology" in US – Zeroing (EC) and US – Zeroing (Japan).
In each of those disputes, the complainants were challenging unwritten measures, but the
measures in question were based on either written contracts ( EC and certain
member States - Large Civil Aircraft ), or written standard procedures, including specific lines
of computer code (US – Zeroing (EC) and US – Zeroing (Japan)).
22. In contrast, the unwritten "overarching RTRR measure" that the complainants seek
to challenge in this dispute consists of various "requirements" that the Argentine Republic allegedly
imposes on "economic operators". The complainants affirm that none of these alleged
"requirements" is "stipulated in any published law or regulation", and thus concede that the
alleged constituent elements of the "overarching measure" they are challenging are,
in themselves, unwritten. To date, the complainants have not made the slightest effort to explain
how these very disparate alleged requirements somehow combine to form the "overarching
measure" that they are challenging. In fact, they have done nothing more than invent this
"overarching" measure for the purposes of this dispute. Furthermore, the complainants
themselves have admitted that the content of th e alleged "overarching RTRR measure" they are
challenging is not limited to the "requirements" listed in their panel requests. The Argentine
Republic fails to understand how the complainants can demonstrate the precise content
of an "overarching measure" which allegedly cons ists of unwritten "requirements" that have not
even been identified or specified, still less how such an unwritten "overarching" measure
has "general and prospective" application.
23. Nor does the Argentine Republic know how the complainants can demonstrate the "precise
content" of the unwritten "overarching RTRR measure" when it is alleged to include "one or more"
of a total of five, and possibly more, distinct alleged requirements. The Argentine Republic believes
that these obvious logical failings in the case which the complainants have chosen to make
regarding the alleged "overarching RTRR measure" present insurmountable obstacles in their
efforts to demonstrate its existence, which no doubt explains why the complainants have still not
made the slightest effort to tackle them.
24. The Argentine Republic does not bear the burd en of disproving a case that the complainants
have not even attempted to make, nor does it have any intention of doing so. Nevertheless,
it stresses that, because the alleged unwritten "overarching" measure under challenge is itself
comprised of unwritten measures, the complainants bear the burden of proving the existence
of these constituent unwritten "requirements". In other words, in accordance with
the Appellate Body's standard for establishing the existence of unwritten measures,
the complainants bear the burden of demons trating the precise content and the general
and prospective application of each of the alleged "requirements".
25. As in the case of the "overarching" measure itself, the complainants have made no attempt
at such a demonstration. This is probably because, even if the Panel were to accept in its entirety
the complainants' characterization of the eviden ce with respect to the alleged "requirements",
the most that such evidence could possibly demonstr ate is a series of discrete, "isolated" actions
involving a limited number of individual "economic operators", whose particular content varies
widely and which lacks anything even resembling the general and prospective application one
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would expect to find in the operation of an unwritten rule or norm. This is the case for each of the
alleged requirements identified by the complainants.
26. The complainants must demonstrate affirmat ively, on the basis of positive evidence,
the existence of the "overarching" measure that they have invented for the purposes of this
dispute. Simply asserting that there must be "government-wide direction" because the lack thereof
"would be surprising", or that the alleged measure must be prospective because the Argentine
Republic has not proved the contrary, does not constitute positive evidence. As long as the
complainants do not explain how the evidence they have submitted demonstrates the precise
content and the general and prospective application of the alleged "overarching" measure,
they will have failed even to make a prima facie case that the measure exists.
27. Accordingly, the Panel must find that the comp lainants have failed to establish the existence
of the alleged "overarching" RTRR measure that can be challenged under the WTO's dispute
settlement mechanism, and must therefore reject the complainants' claims under Articles XI:1
and III:4 of the GATT 1994 in their entirety.
III. The Complainants Have Failed to Establish a Prima Facie C a s e t h a t t h e D J A I
Procedure Is Inconsistent with the GATT 1994
28. In their opening statements at the first substantive meeting, and in their responses
to the Panel's questions, the complainants continue to evince considerable confusion about the
nature of their claims in relation to the DJAI procedure. At various times, the complainants have
characterized the DJAI procedure as a procedure that is used to implement the alleged overarching
RTRR measure. At other times, the complainants have appeared to disavow any connection
between the DJAI procedure and the alleged RTRR measure, and to treat the two as entirely
separate measures. This lack of coherence has made it difficult to identify the precise factual and
legal basis for the complainants' position that the DJAI procedure is inconsistent with the covered
agreements.
29. Bearing in mind this lack of clarity in the complainants' positions, Argentina considers that
it would be useful to begin this discussion with what appear to be some important points
of agreement. First, the complainants do not appear to dispute that the DJAI is a procedure.
The complainants acknowledged as much when they chose to bring claims in respect of the DJAI
under the Agreement on Import Licensing Procedures (ILP Agreement), which relates exclusively
to import licensing procedures and not to substantive rules affecting the importation of goods.
Consistent with this fact, the complainants likewise do not appear to dispute that
the DJAI procedure contains no substantive rules governing the importation of goods into
Argentina. Argentina has explained, and the complainants have not disputed, that the substantive
rules affecting the importation of goods into Argentina are established elsewhere in Argentine law.
Consequently, there can be no remaining doubt that the DJAI is purely procedural, even if the
parties differ as to the nature and purpose of that procedure, for example, as to whether
it constitutes an "import licensing procedure" or whether it is administered for customs purposes
in accordance with Article VIII of the GATT 1994.
30. The second point of apparent agreement between the parties is that any claim in respect
of the DJAI procedure must be based on evidence and legal arguments pertaining
to the DJAI procedure itself, and not on evidence and legal arguments pertaining to any
substantive import rule that the DJAI is allegedly used to implement, such as the alleged
overarching RTRR measure. In other words, the parties appear to agree that any claim in respect
of the DJAI procedure must be based on proof that the procedure itself has effects that render
it inconsistent with the provisions of the covered agreements invoked, separately and
independently of the alleged use of the DJAI procedure as a means of implementing what the
complainants consider to be a separate quantitative restriction.
31. In the light of the foregoing, Argentina will focus on the evidence and legal arguments that
the complainants have put forward in support of their claims against the DJAI procedure under
Article XI:1. As Argentina will proceed to demonstrate, the complainants have failed to establish
a prima facie case that the DJAI procedure is inconsistent with that provision.
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32. The first and most fundamental flaw in the comp lainants' claims under Article XI is that they
have failed to demonstrate that import formalities and requirements such as the DJAI procedure
are subject to this provision at all. As Argentina explained in its first written submission, import
formalities and requirements are the subject of Article VIII of the GATT 1994. Argentina further
explained that, when properly interpreted in acco rdance with their ordinary meaning and context,
Article VIII and Article XI are mutually exclusive in their respective spheres of application. Until
now, the complainants have not provided any seri ous response to these points of interpretation.
Their argument that import formalities and requirements can be analysed under Article XI is based
on mere assertions.
33. Even if import formalities and requirements we re subject to the disciplines of Article XI, the
complainants would still need to demonstrate that the DJAI procedure constitutes a quantitative
restriction within the meaning of that provision. The complainants' claims against
the DJAI procedure under Article XI, however, are based on a steadfast refusal by the
complainants to interpret the term "restriction" in the light of the reference to " quantitative
restrictions" in the title of Article XI. This is the proper context to be taken into account when
interpreting Article XI, and it leads to the conclusion that Article XI encompasses only those
"restrictions" that are expressed in terms of quantity or that are quantifiable in nature. It is clear
that the complainants would prefer to ignore th is interpretative requirement and rely instead
on reports of previous panels that failed to take this context into account.
34. Because the complainants have misinterpreted Article XI, they have not even attempted
to make the necessary prima facie showing that the DJAI procedure results in a quantitative
restriction on imports. None of the limited evidence put forward by the complainants in support
of their claims against the DJAI procedure even pu rports to demonstrate, let alone establish, that
the introduction of this procedure has resulted in such a quantitative restriction.
35. The main evidence put forward by the compla inants in support of their claims against the
DJAI procedure are two "surveys" of companies that import goods into Argentina, one conducted
by the United States Chamber of Commerce and the other by the Government of Japan. These
"surveys" were not genuine study instruments and, consequently, are fatally flawed as evidence.
36. For example, the US Chamber of Commerce "survey" is flawed in numerous respects,
including: (1) that it provides no precise information about the number of DJAI applications
covered by the "survey"; (2) that it does not indicate what portion of total DJAI applications during
this period (submitted by US enterprises, members of the US Chamber of Commerce,
or otherwise) were covered by the "survey"; (3) that it provides no information about the volume
and value of trade represented by the enterprises that responded to the "survey" questionnaire;
and; (4) that it does not provide sufficient information to determine the number
of DJAI applications that were subject to delay during the period surveyed.
37. The "survey" conducted by the Government of Japan shows similar shortcomings.
For example, only ten enterprises submitte d responses to the Government of Japan's
questionnaire, which raises serious doubts as to whether this is a representative sample of
Japanese enterprises that export to Argentina. Moreover, this appears to have involved a
self-selected group of respondents who had already submitted complaints to the Government of
Japan about the alleged impact of the DJAI procedure, which suggests that it was not an objective
group of respondents.
38. Even more importantly, these "surveys" do not even purport to show that the DJAI
procedure has given rise to a quantitative restriction on the importation of goods into Argentina.
These "surveys" do not even ask, let alone reveal, whether importers have experienced any
quantitative reduction in their imports into Argentina as a result of the introduction of this
procedure. For example, although the "surveys" allegedly demonstrate that importers have
experienced delays in the approval of DJAI applications, they provide no evidence that the imports
that were the subject of these applications did not take place. Leaving aside their obvious
deficiencies as study tools, these "surveys" provide no evidentiary support for asserting that the
DJAI procedure has imposed a quantitative restriction on imports within the meaning of Article XI.
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39. Since the complainants have furnished no evidence that the DJAI procedure has given rise
to a quantitative restriction on imports, it must be concluded that they have failed to make
a prima facie case that the DJAI procedure is inconsistent with Article XI of the GATT 1994.
This should be the end of the Panel's evaluation of the complainants' claims under Article XI
in relation to the DJAI procedure.
IV. The Complainants Have Failed to Establis h that the DJAI Procedure Is Inconsistent
with the Agreement on Import Licensing Procedures (ILP Agreement)
40. In their oral statements and responses to the Panel's questions, the complainants seem
to have distanced themselves from their claims 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 ILP Agreement. The complainants' reluctance to focus on their claims
under the ILP Agreement is understandable, given that these claims are predicated on the
awkward proposition that the DJAI procedure is both a substantive rule governing importation
of goods into Argentina (i.e., a "quantitative restriction") and an import licensing procedure used
by Argentina to implement alleged quantitative restrictions. As Argentina has emphasized
throughout these proceedings, the Panel will sear ch the record in vain for any evidence tending
to demonstrate independently that the DJAI procedure has a restrictive effect on imports beyond
the effects of the alleged trade-restrictive measure it allegedly seeks to implement.
41. Notwithstanding these shortcomings, Argentina will take this opportunity to address some
of the arguments made by the complainants with respect to the central issue of whether the DJAI
procedure constitutes an "import licence" subject to the disciplines of the ILP Agreement.
Indisputably, in order to meet the definition of "import licensing" under Article 1.1
of the ILP Agreement, the DJAI procedure would ha ve to constitute an administrative procedure
"used for the operation of import licensing regimes", and it would have to require " the submission
of an application or other documentation (other than that required for customs purposes)"
as a prior condition for importation. The complainants have failed to demonstrate that
the DJAI procedure meets these two criteria.
42. In its first written submission, Argentina demonstrated that the DJAI cannot be considered
an "import licence" within the meaning of Article 1.1 of the ILP Agreement because it is not
an administrative procedure "used for the operation of import licensing regimes". Argentina
explained that import conditionality alone is not sufficient for any documentation to fall within the
scope of the ILP Agreement, as claimed by the complainants. This is because in the importation
process many documents and certificates are required for the purpose of certifying compliance
with a wide variety of legal requirements, such as sanitary and phytosanitary regulations.
As the Panel found in Turkey – Rice , the fact that imports may not take place in the absence
of such documents does not automatically transform them into "import licences".
43. The complainants' excessively broad interpreta tion of the term "import licence" would bring
within the scope of the ILP Agreement any and all "formalities … in connection with importation"
under Article VIII.4 of the GATT, including, inter alia , "consular invoices and certificates"
and "quarantine, sanitation and fumigation" ce rtificates. Argentina urges the Panel to give
meaning to the terms "used for the operation of import licensing regimes" in Article 1.1,
by determining that "import licensing procedures" are only those administrative procedures used
for the purpose of regulating the importation of certain goods.
44. Even in the unlikely event that the Panel were to disagree with Argentina and determine that
the DJAI procedure is an "import licensing procedure", the complainants have failed
to demonstrate that the DJAI procedure requires "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".
45. In its first written submission and its responses to questions from the Panel, Argentina
demonstrated that the DJAI procedure is purely for customs purposes and is therefore not subject
to the disciplines of the ILP Agreement. Th e Revised Kyoto Convention (referred to by
the Appellate Body for guidance in Thailand – Cigarettes (Philippines) ) defines "customs" as the
"Government Service which is responsible for the administration of Customs law … and which also
has the responsibility for the application of other laws and regulations relating to the importation,
exportation, movement or storage of goods". On the basis of this definition, an application or other
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documentation that is required for the purpose of facilitating the administration or implementation
of a Member's customs laws cannot constitute an "import licensing procedure", even if it operates
as a prior condition for importation.
46. Argentina has established that the DJAI procedure involves the advance provision
of information that is required for the purpose of facilitating the administration of Argentina's
customs laws and regulations. Argentina explained that the advance customs information collected
through the DJAI procedure is processed and re viewed by Argentina's customs body, AFIP, and
by other agencies with additional customs responsibilities, as relevant according to the potential
risks. Depending on the products covered by each DJAI, SCI, ANMAT and SEDRONAR also take
part in the DJAI procedure, in addition to AFIP . Argentina has also demonstrated that the advance
information provided by customs brokers and/or importers relates exclusively to AFIP's authority
to secure compliance with Argentina's customs laws, thereby mitigating risks arising from illegal
trade, such as classification fraud, duty evasio n, counterfeit goods, and drug trafficking, among
others. Lastly, Argentina emphasized that the DJAI procedure is an integral part of customs
clearance procedures, inasmuch as the advance information provided is automatically transferred
into the MARIA (SIM) system for customs clearance purposes.
47. The complainants have failed to rebut Argentina's arguments, and thus have failed to
establish that the DJAI procedure constitutes an import licensing procedure within the meaning
of Article 1.1 of the ILP Agreement. Accordingl y, the DJAI procedure is not subject to the
disciplines of the ILP Agreement and the Panel shou ld reject, in their entirety, the complainants'
claims 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 ILP Agreement.
V. The Complainants Have Failed to Demonstrate that the DJAI Procedure Is
Inconsistent with Article X of the GATT 1994
48. Finally, with regard to the complainants' clai ms under Articles X:1 and X:3(a) of the GATT,
Argentina has demonstrated that these challenges must fail: (i) because the complainants have
failed to demonstrate that the agencies' observations in specific DJAI applications are measures
"of general application" and (ii) because the alleged "discretion" of participating agencies to make
or lift observations on a DJAI is not related to the "administration" of measures of general
application, but rather to the substantive rules governing the importation of goods into Argentina.
VI. Conclusion
49. For the foregoing reasons, the Argentine Republic respectfully requests, as a preliminary
matter, that the Panel find that the "as applied" claims of Japan (and the United States) against
the alleged "overarching" RTRR measure and the "alternative" claims of the European Union
against 23 separate RTRR measures fall outside its terms of reference. The Argentine Republic
requests further that the Panel find that the complainants have failed to demonstrate the existence
of an alleged "overarching" RTRR measure that could be subject to challenge under
the WTO dispute settlement mechanism, and therefore reject the complainants' claims
under Articles XI:1 and III:4 of the GATT 1994 in their entirety.
50. The Argentine Republic also respectfully requests that the complainants' claims in relation
to the DJAI procedure under Articles 1.3, 1.4(a), 1.6, 3.2, 3.3, 3.5(f), 5.1, 5.2 and 5.4
of the ILP Agreement and Articles X:1, X:3( a) and XI:1 of the GATT 1994 be rejected in
their entirety.
ORAL STATEMENTS AT THE SECOND SUBSTANTIVE MEETING

I. The Complainants Have Yet to Establish the Existence of the "Overarching RTRR
Measure" They Are Challenging
1. In order to establish the existence of the "overarching RTRR measure", the complainants
must demonstrate the precise content of the a lleged measure and its general and prospective
application. As Argentina demonstrated in its second written submission, the complainants have
failed to make their case in respect of the thr ee elements of the Appellate Body's legal standard.
Even after acknowledging, in their second written submissions, that this legal standard does in fact
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apply to their claims, the complainants' arguments boil down to little more than unsubstantiated
assertions.
2. The unwritten "overarching RTRR measure" that the complainants seek to challenge in this
dispute consists of various "requirements" that Argentina allegedly imposes on "economic
operators". The complainants have explained that these alleged "requirements" are not "stipulated
in any published law or regulation", so that it is clear that the unwritten "overarching RTRR
measure" is itself made up of unwritten measures. Moreover, the content of the alleged unwritten
"overarching RTRR measure" is not limited to the unwritten "requirements" listed in the
complainants' panel requests. The complainants have explained that while the "overarching RTRR
measure" includes the unwritten "requirements" id entified in their panel requests, it may also
include other unstated "requirements".
3. Argentina does not know how the complainants can demonstrate the precise content
of an "overarching measure" whose content alle gedly consists of unwritten "requirements" which
to date have been neither identified nor specified. Nor does Argentina understand how the
complainants can demonstrate the precise content of the alleged measure when that measure may
include "one or more" of a total of five, or possibly more, different "requirements". It cannot be
the case that the "precise content" of an unwritten measure is the same regardless of whether it
has one, three, five or even more components, some of which have yet to be specified; however,
that is precisely what the complainants are asking this Panel to accept.
4. Furthermore, as Argentina explained in its second written submission, even if the alleged
"overarching measure" were expressly limited to the five "requirements" identified in the
complainants' panel requests, the complainants would still have to demonstrate that these
unwritten "requirements" actually exist in order to be able to demonstrate the content of the
"overarching RTRR measure" that they allegedly co mprise. In other words, in accordance with the
Appellate Body's standard for establishing the existence of unwritten measures, the complainants
would have to demonstrate the precise content and the general and prospective application
of each of the alleged "requirements".
5. At this advanced stage in the dispute, the complainants have as yet made no attempt
to demonstrate this. Argentina assumes that the complainants' reluctance to carry out the
necessary analysis is due to the fact that, even if the Panel were fully to accept their
characterization of the evidence relating to the alleged "requirements", the most that such
evidence could possibly be hoped to demonstrate is a series of isolated, individual actions involving
a limited number of "economic operators", in a limited number of sectors, whose content varies
enormously and which lacks anything resembling the general and prospective application one
would expect to find in a rule or norm.
6. In their second written submissions, the co mplainants rebut this characterization of the
evidence that they have put forward. The Eu ropean Union argues that the evidence shows
"not simply a series of distinct and unrelated actions" but rather "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 European Union claims that "the RTR requirem ents are not isolated cases, but an overarching
measure applied to a wide range of situations, and has become the 'rule' for companies doing
business in Argentina." Japan asserts that there is "evidence of a consistent and repeated pattern
of application of the RTRR" and maintains that it has "demonstrated that these instances
of the RTRR's application 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." Similarly, the United States argues that it has "submitted substantial proof of the
repeated and systematic application of the RTRRs measure".
7. Argentina considers it useful at this point to pause and examine the meaning of the terms
that the complainants casually attribute to th e evidence they have put forward. The term
"systematic" means "arranged or conducted accord ing to a system, plan, or organized method".
The term "consistent" means "constantly adhering to the same principles of thought or action".
The term "rule" means "a principle regulating practice or procedure" or "a prescribed guide for
conduct or action". The term "general" means "not specifically limited in application; related
to a whole class of objects, cases, occasions, etc. ; (of a rule, law etc.); true for all or nearly all
cases coming under its terms". The term "systemic" means "… affecting the system or body
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as a whole". While the complainants assert that they have demonstrated that the "overarching
RTRR measure" reflects a "rule", or a "consistent and repeated pattern", or a "systematic"
approach that applies "generally", these assertions are belied by the way in which the
complainants themselves describe the operation of the alleged measure.
8. The complainants maintain that the measure applies to "certain economic operators"
in Argentina, and that these economic operators ar e required to comply with one or possibly more
unwritten "requirements" (which may or may not be among the five "requirements" identified
in the complainants' panel requests), "depending on their contribution to achieving
[trade balancing and import substitution] objectives". In other words, according to the
complainants' own characterization, it is unclear in any given instance to which of the "certain"
economic operators in Argentina the alleged measure will potentially apply, how their "contribution
to achieving" trade balancing and import substituti on objectives will be measured and evaluated,
or what precisely will be required of those economic operators when the determination – obviously
a subjective one - is made that the alleged measure must be applied to them. Where is the
"organized method", the "guide for conduct" or the "consistent" pattern in this description of the
alleged "general" measure and how it purportedly operates? The answer is that none
is to be found.
9. Given that the complainants rely on the "systemic application" of the alleged "overarching
RTRR measure" in order to demonstrate its general and prospective application, the complainants'
failure to demonstrate that the alleged measure is applied systematically taints their arguments
in relation to these elements of the Appellate Body's legal standard.
10. The Panel in EC and certain member States – Large Civil Aircraft explained that "[t]he
repetition of government action over time does not necessarily prove that the government has
adopted a general rule governing its future conduct". In this respect, the Panel was echoing the
European Union's argument in that dispute that "the fact that several government decisions over
a period of over 30 years are perceived as 'consistent' does not collapse these into one
'mega-measure' for the purpose of an 'as such' cl aim. Rather, these remain separate decisions,
relating to separate aircraft, involving separate amounts and different terms and conditions".
11. The European Union's argument seems far mo re relevant in the context of the current
dispute than it did in Aircraft, where there was substantially more evidence of "consistent"
government decisions over a much longer period of time. The complainants in the current dispute
are undoubtedly trying to transform "separate decisions, relating to separate
[economic operators], involving … different terms and conditions" into a "mega-measure"
by arguing, without supporting evidence, that the measure has been "systemically applied".
As Argentina has demonstrated in its previous submissions, the complainants' "overarching RTRR
'mega-measure'" simply does not exist.
II. The Complainants Have Yet to Demonstrate that the DJAI Procedure Is
Inconsistent with Article XI:1 of the GATT 1994
12. Argentina will now address the complainants ' claim in respect of the DJAI procedure,
beginning with their claims under Article XI:1 of the GATT 1994 before going on to their claims
under the Agreement on Import Licensing Procedures ("ILP Agreement"). The first and
fundamental problem with the complainants' claims under Article XI:1 is that they have yet
to establish that import formalities and requir ements such as the DJAI procedure are subject
to Article XI:1 at all. Even if the DJAI procedure were subject to Article XI:1, the complainants
have failed to establish a prima facie case that the DJAI procedure would constitute a prohibited
quantitative restriction under a proper interpretation and application of that provision.
13. It is remarkable that, at this late stage in the proceedings, the complainants have yet
to engage in any serious effort to interpret Article XI:1 of the GATT 1994 – the provision that
forms the basis of their claims in respect of the DJAI procedure. The complainants have failed
to grasp the meaning of the one word – "quantitat ive" – that previous panels have not properly
considered in their interpretations of Article XI:1, a word that the Appellate Body has made clear
must be taken into account as relevant context. The complainants keep trying to shift the focus
of the discussion – for example, to the meaning of the term "restriction" – without addressing the
contextual significance of the title of Article XI.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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14. Let us be clear. The parties to this disput e do not appear to question the meaning of the
term "restriction" in Article XI:1. As the Appellate Body held in China – Raw Materials , the term
"restriction" means "'[a] thing which restricts someone or something, a limitation on action,
a limiting condition or regulation', and thus refers generally to something that has a limiting
effect." But not all "restrictions" fall within the scope of Article XI:1. As the Appellate Body went
on to observe, the term "restriction" in Article XI:1 must be interpreted in the context of the title
of Article XI. The title of Article XI indicates that Article XI:1 encompasses not just any measure
that meets the definition of a "restriction", but only those restrictions "that have a limiting effect
on the quantity or amount of a product being imported or exported".
15. The complainants have mischaracterized Argentina's argument as one relating exclusively
to "actual trade effects" or to restrictions "express ed in numerical terms" in an effort to disguise
the shortcomings of their affirmative case. Argentina has never taken the position that Article XI
only covers numerical quotas or that it requires demonstration of an actual decline in imports.
Rather, Argentina simply stated that Article XI, properly interpreted, requires the complainants
to demonstrate that the DJAI procedure has a "limiting effect on the quantity or amount
of a product being imported or exported". The comp lainants continue to deny that they have any
obligation in this respect, and therefore have refused to provide this Panel with any evidence
to establish a prima facie case under Article XI:1.
16. There is no suggestion in this dispute that the DJAI procedure imposes a restriction
on imports that is expressed "in terms of quan tity". The Panel must therefore reject these
assertions by the complainants.
III. The Complainants Have Failed to Demonstrate that the DJAI Procedure Is
Inconsistent with the Agreement on Import Licensing Procedures (ILP Agreement)
17. The complainants' attempt to elicit additional findings with respect to the DJAI procedure
under the ILP Agreement illustrates the confused nature of their claims and highlights how far they
are asking this Panel to exceed its authority. The complainants implausibly suggest that the DJAI
procedure is simultaneously a quantitative restriction, an import licensing procedure through which
that quantitative restriction is implemented, and an import licensing procedure through which
an alleged "overarching" RTRR measure is implemented.
18. Leaving aside the confused nature of the complainants' submissions, it is evident that
in order to succeed in their claims under the ILP Agreement, the complainants must establish that
the DJAI procedure is an "import licensing procedure" subject to the provisions
of the ILP Agreement, and that the administration of such import licensing procedures has created
trade-restrictive effects that are additional to th e underlying substantive rule that they allegedly
implement.
19. The complainants have failed on both counts. For the complainants, the fact that the DJAI
operates as a prior condition for importation is considered sufficient to demonstrate that
it is an "administrative procedure used for the operation of import licensing regimes". However,
this excessively broad interpretation would have the effect of leaving the words "used for the
operation of import licensing regimes" out of th e ILP Agreement altogether, and would mean that
the term "import licence" covers a wide range of documents and certificates that are ordinarily
required as a prior condition for importation in order to certify compliance with a wide variety
of domestic laws and regulations, such as sanitary or phytosanitary requirements.
20. Even in the event that this Panel were to conclude that the DJAI is an "import licence",
the complainants have failed to demonstrate that it is not "for customs purposes". The DJAI
procedure is an integral part of Argentina's clearance procedures. On the basis of the information
collected in advance through the DJAI procedure, Argentina's customs authorities can assess and
manage customs-related risks, and determine in advance of importation the appropriate level of
inspection (physical inspection, document inspection, or no inspection) to be carried out once the
goods are presented at the point of importation for customs clearance purposes. Argentina has
additionally underscored that the customs information advanced through the DJAI procedure is
automatically transferred and utilized in the MARIA system.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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21. Should the Panel nonetheless consider that the DJAI procedure is an import licensing
procedure subject to the disciplines of the ILP Agreement, the complainants have still failed
to establish, in substance, that the admini stration of the DJAI procedure has created
trade-restrictive effects that are additional to the quantitative restriction it allegedly constitutes.
Consequently, the Panel should reject the complainants' claims under the ILP Agreement in their
entirety.
22. Argentina concludes its statement at the second substantive meeting with the request that
the Panel reject the claims submitted by the complainants in this dispute.

WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX C
ARGUMENTS OF THIRD PARTIES
Contents Page
Annex C-1 Executive summary of the arguments of Australia C-2
Annex C-2 Executive summary of the arguments of Canada C-6
Annex C-3 Executive summary of the arguments of Israel C-9
Annex C-4 Executive summary of the arguments of the Republic of Korea C-10
Annex C-5 Executive summary of the arguments of Norway C-12
Annex C-6 Executive summary of the arguments of the Kingdom of Saudi Arabia C-16
Annex C-7 Executive summary of the arguments of Chinese Taipei C-19
Annex C-8 Executive summary of the arguments of Turkey C-21
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX C-1
EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA
I. WHETHER A CUSTOMS FORMALITY CAN BE EVALUATED UNDER ARTICLE XI OF THE
GENERAL AGREEMENT ON TARIFFS AND TRADE
1. Argentina has argued that the Declaración Juradas Anticipadas de Importactión (DJAI) is a
customs formality and therefore cannot be evaluated under Article XI of the General Agreement on
Tariffs and Trade (GATT 1994).
1 Australia does not necessarily accept that the DJAI is a customs
formality, but considers that customs formalities can be evaluated under Article XI.

2. Article XI:1 of GATT 1994 provides that:

No prohibitions or restrictions other than duties, taxes or other charges whether made
effective through quotas, import or export licenses or other measures, shall be
instituted or maintained by any contracting party on the importation of any product of
the territory of any other contracting party or on the exportation or sale for export of
any product destined for the territory of any other contracting party.
3. Since the only types of measure expressly ex cluded from this provision are "duties, taxes
and other charges", Australia considers that a customs formality could breach Article XI:1 by
amounting to a "restriction".

4. In China – Raw Materials, the Panel referred to findings of other GATT and WTO panels that
types of measures "other" than quotas, import or export licenses, duties, taxes or charges that
have a "limiting effect" or impose a "limiting condition", are prohibited under Article XI:1, and
noted that panels have assessed such measures by examining their design to determine whether
they have a "limiting" or "restrictive" effect.
2 The Panel in China – Raw Materials noted that it saw
no merit in seeking to determine whether a measure is permissible under Article XI:1 based solely
on its label.
3

5. In India – Autos the Panel noted that Article XI:1 refers to restrictions "made effective
through quotas, import or export licences or other measures". The Panel stated that this
formulation, which includes a "broad residual category" of "other measures", suggests that
Article XI:1 has a broad scope.
4

6. Australia notes that there is some question as to whether it is enough that the measure
places a limiting effect or condition on importation, or whether it must also be shown that the
measure affects the competitive opportunities available. Proponents of the latter view argue that a
panel would likely also require that the measure have an impact on the competitive opportunities
available, otherwise any restricting effect, no matter how minimal, would be enough to find a
Member in breach of Article XI:1. Accordingly, the Panel in India – Autos noted the following:

The question of whether [the] measure can appropriately be described as a restriction
on importation turns on the issue of whether Article XI can be considered to cover
situations where products are technically allowed into the market without an express
formal quantitative restriction, but are only allowed under certain conditions which
make the importation more onerous than if the condition had not existed, thus
generating a disincentive to import.
5

1 Argentina's first written submission, para. 181.
2 Panel Report, China – Raw Materials, para. 7.914.
3 Panel Report, China – Raw Materials, para. 7.915.
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7. The Panel in Colombia – Ports of Entry noted that:

… a number of GATT and WTO Panels have recognized the applicability of Article XI:1
to measures which create uncertainties and affect investment plans, restrict market
access for imports or make importation prohibitively costly, all of which have
implications on the competitive situation of an importer.
6
8. Australia therefore considers that even if the Panel accepts Argentina's argument that the
DJAI is a customs formality, the measure may still be evaluated under Article XI:1. Australia notes
that Article XX(d) of GATT 1994 provides that no thing in GATT 1994 shall be construed to prevent
the adoption or enforcement of measures necessary to secure compliance with laws or regulations
which are not inconsistent with the provisions of this Agreement, including those relating to
customs enforcement. The application of such an exception to measures relating to customs
enforcement clearly suggests that other provisions of GATT 1994 (such as Article XI) do apply to
such measures.

II. THE PURPOSE AND FOCUS OF ARTICLE VIII OF GATT
9. As noted above, Argentina has argued that the DJAI is a customs formality, and has made
some comments about Article VIII of GATT 1994 in arguing that Article VIII and Article XI are
mutually exclusive and that the DJAI, as a customs formality, must be evaluated under Article VIII
and not Article XI of GATT 1994.
 7

10. Article VIII:1(c) of GATT states that:

… the contracting parties also recognize th e need for minimizing the incidence and
complexity of import and export formalities and for decreasing and simplifying import
and export documentation requirements.
11. Argentina has argued that this provision expressly acknowledges the need for Members to
maintain customs formalities, 8 and has also argued that Article VIII contemplates that customs
formalities can have at least some restrictive effect on trade. Argentina states 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 Article VIII were aware that customs
formalities are potentially an impediment to trade…Because the potential trade-
restricting effects of customs formalities are governed by Article VIII… and because
Article VIII contemplates by its terms that such effects may occur, it cannot be the
case that these same effects render a customs formality a prohibited quantitative
restriction under Article XI.
9
12. Argentina argues in its submission that customs formalities cannot be evaluated under
Article XI, and that if customs formalities have some effect on the quantity or amount of imports,
this must be evaluated under Article VIII or, in the case of import licensing procedures other than
for customs purposes, under the Import Licensing Agreement.
10

13. Another statement made by Argentina is that "it cannot be the case that customs formalities
that are permitted under Article VIII are prohibited quantitative restrictions under Article XI".
11

14. Argentina also stated that:

Article VIII recognizes the need for Members to maintain import formalities and
requirements in the ordinary course of implementing and enforcing their domestic
laws. Article VIII:1(c) acknowledges "the need for minimizing the incidence and

6 Panel Report, Colombia – Ports of Entry para. 7.240.
7 Argentina's first written submission, para. 176.
8 Argentina's first written submission, para. 163.
9 Argentina's first written submission, para. 177.
10 Argentina's first written submission, para. 181.
11 Argentina's first written submission, para. 176.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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complexity of import and export formalities and for decreasing and simplifying import
and export documentation requirements", but otherwise does not impose more
specific disciplines in respect of these types of procedures.
12
15. Australia disagrees with Argentina's characteri sation of the purpose and focus of Article VIII
of GATT 1994. Article VIII does not primarily aim to permit and govern customs formalities, and
only mentions import and export formalities in order to state the need for contracting parties to
minimize their incidence and complexity.

16. Argentina argues that the trade restrictive effects of customs formalities can only be
evaluated under Article VIII, while noting that Article VIII does not impose any specific disciplines
in relation to these procedures.
13 If this argument succeeded it would mean that the trade
restrictive effects of customs formalities would effectively not be able to be evaluated at all.

III. WHETHER A NON-AUTOMATIC IMPORT LICENSING PROCEDURE CAN ALSO BE A
PROHIBITED QUANTITATIVE RESTRICTION UNDER ARTICLE XI OF GATT
17. Argentina argues that the Import Licensing Ag reement sets forth specific and more detailed
disciplines concerning the trade restricting effects of import licensing procedures and that the
trade-restricting effects of import licensing procedures must therefore be analysed under the
relevant provisions of the Import Licensing Agreement and not under Article XI. 14 This argument
does not pertain to the order of analysis, since Argentina is arguing that if the Panel considers the
DJAI to be a non-automatic import licensing system, then the DJAI should not be evaluated under
Article XI at all.
15 Argentina has noted, however, that its raising of this issue does not mean that
the DJAI procedure is subject to the Import Licensing Agreement, as Argentina considers that it is
not.16

18. Australia considers that the trade-restrictive effects of the DJAI can be analysed under both
the relevant provisions of the Import Licensing Agreement and under Article XI of GATT. In
Argentina – Footwear, the Appellate Body considered the relationship between Article XIX of
GATT 1994 and the Agreement on Safeguards, and stated:

… the provisions of Article XIX of the GATT 1994 and the provisions of the Agreement
on Safeguards are all provisions of one treaty, the WTO Agreement. They entered into
force as part of that treaty at the same time. They apply equally and are equally
binding on all WTO Members…a treaty interpreter must read all applicable provisions
of a treaty in a way that gives meaning to all of them, harmoniously. And, an
appropriate reading of this "inseparable package of rights and disciplines" must,
accordingly, be one that gives meaning to all the relevant provisions of these two
equally binding agreements.
17
19. In EC – Bananas, the Panel noted that it had to ascertain whether the provisions of the
Import Licensing Agreement and the Agreement on Trade-Related Investment Measures (TRIMS
Agreement), contain any conflicting obligations which are contrary to those stipulated by Articles I,
III, or XIII of GATT 1994, in th e sense that Members could not comply with the obligations
resulting from both Agreements at the same time or that WTO members are authorized to act in a
manner that would be inconsistent with the requirements of GATT rules.

20. The Panel explained that wherever the answer to this question is affirmative, the obligation
or authorization contained in the Import Licensing Agreement or TRIMs Agreement would, in
accordance with the General Interpretive Note, prevail over the provisions of the relevant Article of
GATT 1994. Where the answer is negative, both provisions would apply equally.
18

21. The Panel in EC – Bananas found that no conflicting, i.e. mutually exclusive, obligations arise
from the provisions of the Import Licensing Agreement, the TRIMs Agreement and GATT 1994.

12 Argentina's first written submission, para. 163.
13 Argentina's first written submission, para. 163.
14 Argentina's first written submission, para. 171.
15 Argentina's first written submission, para. 180.
16 Argentina's first written submission, para. 301.
17 Appellate Body Report, Argentina – Footwear, para 81 (emphasis in original).
18 Panel Report, EC – Bananas III, para. 7.161.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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Indeed, the Panel noted that the first substantive provision of the Import Licensing Agreement,
Article 1.2, requires Members to conform to GATT 1994 rules applicable to import licensing.19

22. Australia also notes that the preambular provision in the Import Licensing Agreement
provides that Members recognise the provisions of GATT 1994 as they apply to import licensing
procedures, and also notes a desire to ensure that import licensing procedures are not utilised in a
manner contrary to the principles and obligations of GATT 1994.

23. Australia considers that Members can comply with both Article XI of GATT and the relevant
obligations of the Import Licensing Agreement. As such, the DJAI can be evaluated under both
Article XI of GATT 1994 and relevant obligations of the Import Licensing Agreement.

IV. OTHER ISSUES
24. Australia notes that due care must be taken in determining the existence of unwritten
measures. However, it is equally important that the Panel recognise the importance of
appropriately applying WTO rules to WTO Members' unwritten measures. In particular, the lack of
transparency associated with such measures creates uncertainty for exporters from other countries
and can cause a "chilling effect" on trade.

25. With regard to the factual issues raised by the complainants, Australia notes that the overall
picture they describe accords with Australia's experience.

19 Panel Report, EC – Bananas III, para. 7162.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX C-2
EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA*
I. INTRODUCTION
1. Madam Chairperson, distinguished Members of the Panel, the Government of Canada
appreciates this opportunity to provide its views on certain matters arising in this dispute. Canada
is participating as a third party because of its systemic interest in the matter, particularly with
respect to the scope of application of GATT Arti cle XI and the Agreement on Import Licensing
Procedures (ILA).
2. The Complainants argue that Argentina's Declaración Jurada Anticipada de Importación
(DJAI) regime, which requires all importers of all goods to obtain prior approval to import, violates
GATT Article XI. They argue that Argentina estab lished a non-automatic import licensing regime
without publishing the criteria for approval or denial of the DJAI. Under the DJAI regime the
various Argentinian regulatory agencies have complete discretion over when and how to respond
to DJAI applications. According to the Complainants, this discretion is used to prevent or delay the
import of goods. The Complainants also argue that the DJAI regime has trade-restrictive or
distortive effects on imports in violation of ILA Article 3.2.
3. Argentina, in response, argues that the DJAI regime is not an import licensing regime, but
rather a customs formality that may only be evaluated under GATT Article VIII and not under
GATT Article XI. In the alternative, Argentina argues that if the DJAI regime is found to be an
import licensing regime, it can only be evaluated under the ILA as it is exclusively an
administrative procedure used for the operation of an import licensing regime.
4. The Panel's characterization of the DJAI regime will determine which legal provisions apply
to it. In our statement today, we will demonstrate that if the DJAI is characterized as an import
licensing regime or a customs formality it needs to be assessed under GATT Article XI. If it is an
administrative procedure used for the operation of an import licensing regime it needs to be
assessed under ILA Article 3.2.
5. In doing so, we will demonstrate that regardless of which agreement applies this Panel will
have to assess whether the DJAI regime is trade-restrictive in violation of Argentina's WTO
obligations.
A. If the DJAI regime is an import licensing regime then it must be analyzed
under GATT Article XI
6. GATT Article XI specifically states that import restrictions made effective through import
licenses are not permitted. The term "import license" is not defined in the GATT 1994. However,
the panel in Turkey – Rice, considered the meaning of "discretionary import licensing" under
footnote 1 of Article 4.2 of the Agreement on Agriculture. The panel indicated that an import
licensing practice that demonstrates that an importing country's authorities have discretion over
whether to grant or refuse a particular document that is necessary to import a good, can be
characterized as a practice of discretionary import licensing in violation of Article 4.2 of the
Agreement on Agriculture.
1
7. In that dispute, the panel noted the simi larity between the scopes of application of
Article 4.2 of the Agreement on Agriculture and GA TT Article XI. The panel's interpretation of the
term "discretionary import licensing" under th e Agreement on Agriculture should therefore be
equally applicable when assessing whether a measure constitutes an import license restricting
trade in violation of GATT Article XI.
2

* Canada requested that its oral statement serve as the executive summary.
2 Ibid., para. 7.48.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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8. Further, WTO panels have found that measures that can be characterized as discretionary
import licensing regimes, by their very nature, constitute a restriction on imports in violation of
GATT Article XI.
3
9. Therefore, if the Panel finds that the DJAI regime constitutes a discretionary import licensing
regime, it should conclude that the DJAI regime violates GATT Article XI.
B. Even if the DJAI regime is a custom s formality it must be analyzed under
GATT Article XI
10. Argentina argues that the DJAI regime is a customs formality that should be analyzed
exclusively under GATT Article VIII. This is incorre ct. A customs formality must also be analyzed
under GATT Article XI.
11. Article XI:1 forbids Members from instituting or maintaining import prohibitions or
restrictions, other than duties, taxes or other charges, whether made effective through quotas,
import licenses or other measures. Article XI therefore applies to all measures that constitute an
import prohibition or restriction, other than "duties, taxes and other charges".
12. With respect to the residual category of "other measures", the jurisprudence confirms that
this category is comprehensive. It applies to all measures that constitute an import prohibition or
restriction that are not specifically excluded under GATT Article XI.
4 Therefore, even if the DJAI
regime is properly characterized as a customs formality, it is subject to GATT Article XI.
13. GATT Article VIII, for its part, does not set ou t a comprehensive regime for the regulation of
customs formalities. It only contains obligations with respect to fees and charges, and penalties for
minor breaches of customs regulations. Article VIII mentions import and export formalities only to
state the need for WTO Members to minimize their incidence and complexity. As Australia noted, if
Argentina's GATT Article VIII argument were to succeed, it would result in the trade restrictive
effects of customs formalities effectively being unreviewable under the GATT 1994.
5
14. Thus, if the Panel finds that the DJAI regime is a customs formality that restricts imports it
clearly falls within the broad residual category of "other measures" and violates GATT Article XI.
C. If the DJAI regime is exclusively an administrative procedure used for the
operation of an import licensing regi me, then it is only subject to ILA
Article 3.2
15. The ILA specifies that import licensing procedures are administrative procedures used for
the operation of import licensing regimes that require the submission of documentation as a prior
condition for importation. Documents required for customs purposes are specifically excluded from
the scope of the ILA.
16. The Appellate Body has confirmed that the scope of application of the ILA is limited to the
administration of import licenses. It excludes the other aspects of import licensing regimes such as
the import licensing rules themselves.6 Thus, import licensing measures will only be subject to the
ILA if they constitute administrative procedures for the operation of the import licensing regime,
rather than the import regime itself.
17. In that regard, Article 3.2 refers to an underlying restrictive measure that the licensing
procedures at issue will be used to administer or implement. Thus, the obligations under
Article 3.2 only apply if there is an underlying measure that imposes a trade restriction.
18. Therefore, it is only if the Panel finds that the DJAI regime is exclusively an administrative
procedure used for the operation of an import licensing regime, and is not itself an import licensing
regime, that the DJAI regime would be examined exclusively under ILA Article 3.2.

3 Panel Reports, India – Quantitative Restrictions, para. 5.129 and China – Raw Materials, para. 7.921 .
4 Panel Reports, Colombia – Ports of Entry, para. 7.240 ; India – Quantitative Restrictions, para. 5.128;
and GATT Panel Report, Japan – Semi Conductors, para. 104.
5 Australia's third party written submission, para. 30.
6 Appellate Body Report, EC – Bananas III, para. 197.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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D. If the DJAI regime contains both substantive rules and administrative
procedures for the operation of the licensing regime then it may be
analyzed under both GATT Article XI and ILA Article 3.2
19. If the Panel finds that the DJAI regime is both an import licensing regime, subject to GATT
Article XI, and also contains administrative procedures for the operation of the licensing regime,
then it may be analyzed under both GATT Article XI and ILA Article 3.2.
20. In order for both provisions to apply, the DJAI regime needs to contain both substantive
rules with respect to import licenses and administrative procedures used for the operation of those
rules. In that case, the substantive elements must be analyzed under GATT Article XI. It is only if
the substantive elements are found to be consistent with Article XI, that an analysis under ILA
Article 3.2 would be necessary. If the substantive el ements are in violation of Article XI, then the
question of how the measure has been administered is irrelevant.
7
II. CONCLUSION
21. In summary, if the DJAI regime is found to restrict the importation of goods into Argentina,
it would be inconsistent with Argentina's obligations under GATT Article XI, whether it is found to
be an import licensing regime or a customs formality. To the extent that any aspect of the DJAI
regime is found to constitute an administrative procedure under the ILA, the DJAI regime would
also be inconsistent with ILA Article 3.2 if it has trade-restrictive effects on the importation of
goods into Argentina in addition to those of a WTO-consistent underlying restrictive measure.
22. That concludes Canada's statement. Canada thanks the Panel for its attention.

WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX C-3
EXECUTIVE SUMMARY OF THE ARGUMENTS OF ISRAEL*
1. Israel would like to take this opportunity to highlight certain points of interest to our
delegation albeit we have circulated a written submission informing the Panel of our position
as a third party participant in these proceedings.

2. In the case at hand, in Israel's view, Argentina is in violation of several provisions set out
under both General Agreement on Tariffs an d Trade 1994 (GATT 1994) and the Import
Licensing Procedures Agreement (IL Agreement). Argentina has failed to publish promptly
the laws, regulations and administrative rulings of general application pertaining to the
operation of the RTRRs, thus violating Article X:1 of the GATT 1994. In relation to both the
RTRRs and the DJAI, Argentina has failed to publish sufficient information regarding the
basis for granting or allocating licenses, as required by Article 3.3 of the IL Agreement. Also,
Argentina's DJAI fails to comply with the IL Agreement obligation under Article 1.4(a), since
Argentina has not published the rules and all information relating to the DJAI process.

3. These violations raise issues concerning one of the core principles and objectives expressed
in the WTO covered agreements, namely that of transparency. In reality, these violations
mean that economic operators cannot rely on the legal certainty afforded by a clear and
transparent import mechanism and thus create an extremely difficult trading environment.

With this in mind and since Israel views this dispute with particular interest due to its systemic and
trade significance, we raise the following three points:

4. Firstly, this dispute involves important interpretive issues under the WTO agreements;
specifically Article XI:1 of the GATT 1994, which addresses the general elimination of
quantitative restrictions. Argentina has failed to disprove the arguments made by the
complainants regarding Argentina's non-compliance with this obligation, and the Panel
should find accordingly.

5. Furthermore, in relation to Article 3.2 of the IL Agreement, the complainant's prima facie
case is clear in that Argentina's DJAI have trade-restrictive or -distortive effects on imports,
in addition to those caused by the imposition of the DJAI. The trade-restrictive nature and
distortive effects of the DJAI on imports has been carefully detailed by the complainants,
and the Panel should find accordingly.

6. Secondly, whether Argentina's DJAI is viewed as a single non automatic import licensing
procedure or as part of a broader trade restrictive policy, i.e. the RTRR, Argentina has failed
to disprove the complainant's arguments relating to Argentina's non-compliance with its
WTO obligations regarding both these measures and thus the Panel should find accordingly.

7. Finally, the Panel should recognize the import ance of appropriately applying WTO rules to
Members' unpublished measures. The fact that Me mbers do not properly publish their measures
and laws, even though they are obligated to do so, should not allow these measures to avoid
scrutiny. In this case, Argentina's trade-restrictive measures and policies are widespread and their
existence and operation are confirmed through numerous statements, press releases, reports and
industry surveys, thus giving the Panel the legal basis for a finding of non-compliance.

8. In light of the systemic importance of this case and the WTO violations mentioned here and
through our written submission, we urge the Panel to make the necessary findings in order to
preserve the rules-based WTO system. Specifically, Israel respectfully requests that the Panel finds
Argentina's RTRRs and the DJAI to be inconsistent with the obligations of Argentina under
Article X:1, X:3(a) and XI:1 of GATT 1994 and Articles 1.4(a), 3.2, 3.3, of the Import Licensing
Agreement.

We thank the Panel for affording us this opportunity to state our position at this time.

* Israel requested that its oral statement serve as the executive summary.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX C-4
EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE REPUBLIC OF KOREA*
1. The Republic of Korea ("Korea") appreciates this opportunity to present its view on the
matter before the Panel as a third party in the present proceeding. The decision of the Panel in the
dispute at hand would provide important guidelin es to the WTO Members in making their policy
decisions and formulating their respective government programs in a manner consistent with the
rules of the WTO.

2. While the parties and third parties to this dispute raise several important points, Korea
would like to comment on one important issue in the interpretation and application of Article XI:1
of GATT 1994.

3. The Kingdom of Saudi Arabia ("Saudi Arabia") argued in its third party submission that a
licensing system is not in breach of Article XI of the GATT 1994 unless it imposes a quantitative
restriction. Briefly speaking, based on the title and text of the GATT Article XI, and the previous
Appellate Body decisions, Saudi Arabia argues that Article XI of GATT 1994 prohibits only
quantitative restrictions on imports or exports.

4. In this regard, Saudi Arabia referred to the Appellate Body report on the China – Raw
Materials case which explained that "the use of the word 'quantitative' in the title of the provision
informs the interpretation of the words 'restriction ' and 'prohibition' in Article XI:1 and XI:2," and
that "Article XI of the GATT 1994 covers those prohibitions and restrictions that have a limiting
effect on the quantity or amount of a product being imported or exported." Based on this Appellate
Body report, Saudi Arabia claimed that "the provisions of the GATT Article XI must be interpreted
in light of their stated purpose to eliminate quantitative restrictions, and Article XI disciplines only
those measures that have a limiting effect on import or export quantities."
1

5. Korea appreciates Saudi Arabia's point in interpreting the GATT Article XI. However, Korea
has a different view in reading the Appellate Body report. As we understand, the main point of the
report in interpreting the GATT Article XI seems to be how to interpret the languages, "temporarily
applied" and "critical shortage" of Article XI:2(a).

6. Korea would like to remind the Panel that previous WTO panels have tried to touch upon the
interpretation of the terms in the title of the GATT Article XI. The Panel in China – Raw Materials
expressed its view that "The Appellate Body has indicated that the title of a provision may be
useful in defining its objective. The Panel notes th e title of Article XI:1 – 'General Elimination of
Quantitative Restrictions' suggests that the provision is intended to govern elimination of
quantitative restrictions generally. While relevant, the Panel's interpretative task does not of
course end with the title. To determine the scope and meaning of Article XI:1, the Panel needs to
consider the particular terms of the provision."
2

7. To Korea's understanding, careful interpretation of the WTO agreements will guide us to
interpret the treaty terms with due care that requires more than purely textual interpretation. The
Panel in China – Raw Materials further added that "Article XI:1 also prohibits restrictions effected
through export licenses, as well as an unqualified category of 'other measures.' In the Panel's
view, the fact that the title uses the term 'quantitative restrictions' does not change the fact that a
broad category of 'other measures' falls within the scope of Article XI:1."
3 Korea believes that the
Panel in China – Raw Materials clarified that the title in Article XI is not a definite element to define
the scope of Article XI:1.

8. There is another panel decision that prov ides us with useful guidance. The Panel in India –
Autos case found that "The question of whether the measure can appropriately be described as a
restriction on importation turns on the issue of whether Article XI can be considered to cover

* The Republic of Korea requested that its oral statement serve as the executive summary.
1 Saudi Arabia's third party submission, paras. 5-6.
2 Panel Report, China – Raw Materials, para. 7.912.
3 Panel Report, China – Raw Materials, para. 7.913.
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situations where products are technically allowed into the market without an express formal
quantitative restriction, but are only allowed under certain conditions which make the importation
more onerous than if the condition had not existed, thus generating a disincentive to import. On a
plain reading, it is clear that a 'restriction' need not be a blanket prohibition or a precise numerical
limit. Indeed, the term 'restriction' cannot mean merely 'prohibitions' on importation, since
Article XI:1 expressly covers both prohibition and restriction."
4 Again, the Panel in India – Autos
confirmed that 'restriction' does not necessarily mean a precise numerical limit or express formal
quantitative restrictions.

9. Considering these panel decisions, Korea is of the view that the scope of Article XI:1 may be
very broad and comprehensive under WTO jurisprudence. That being said, Korea requests the
Panel to guide us how to interpret the correct meaning of the term, "quantitative," and its
relationship with other terms in the GATT Article XI.

10. Again, Korea appreciates this opportunity before the Panel and would be more than happy to
answer any questions you might have.

4 Panel Report, India – Autos, paras. 7.269 -7.270.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX C-5
EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY
I. INTRODUCTION

1. A transparent regulatory framework is a prerequisite for international trade in general and
the importation of goods in particular. Without the possibility to gain access to relevant
information regarding the requirements applicable to the importation of goods, traders are left
without predictability and the appropriate due proc ess guaranties. This is recognized both by the
interpretation by panels of the GATT 1994 as well as in the preamble of the ILP Agreement.
1

II. TRANSPARENCY OBLIGATIONS IN ARTI CLES X:1 AND X:3 OF THE GATT 1994 AND
ARTICLES 1.4(A) AND 3.3 OF THE ILP AGREEMENT

a) Publication and the manner in which publication must take place

2. Article X:1 of the GATT 1994 and Article 1.4(a) of the ILP Agreement contain an obligation
on Members, saying that the covered information "shall be published", whereas according to
Article 3.3 of the ILP Agreement, Members "shall publish" the covered information. Prior panels
have examined the meaning of this term in the context of the publication provision of Article X:1 of
the GATT 1994. Although no panel has interpreted the meaning of the publication requirement in
Articles 1.4(a) and 3.3 of the ILP Agreement , the guidance given on the interpretation of
Article X:1 of the GATT 1994 must in our view have relevance also for the interpretation on the
manner in which publication must take place according to the two provisions on publication in the
ILP Agreement.

3. The provisions raise questions as to the manner in which publication must take place. In EC
– IT Products, regarding Article X:1 of the GATT 1994, the panel said that:

"In our view, if measures are to be published "in such a manner as to enable
governments and traders to become acquainted with them", it follows that they must
be generally available through an appropriate medium rather than simply making
them publicly available."
4. In the footnote to this quote, the panel further elaborates on its view:

"In other words, if a "medium" makes measures generally available to the public in
such a manner as to "enable governments and traders to become acquainted with
them", we consider that such medium should be regarded as "appropriate" and that
publishing on that medium would fall within "published" a used in Article X:1."
2
5. We understand this to mean that access to information upon request would not fulfill the
publication requirement. Rather, information must be actively provided using an appropriate
medium.
3

b) Requirements as to the content of the publication

6. Article X:1 of the GATT 1994 and Article 1.4(a) of the ILP Agreement contain an obligation
on Members, saying that the covered information shall be published "in such a manner as to
enable governments and traders to become acquaint ed with them". In accordance with Article 3.3
of the ILP Agreement, Members "shall publish sufficient information for other Members and traders
to know the basis for granting and/or allocating licences".

1 EC – IT Products, para. 7.1085, regarding Article X:1 of the GATT 1994. ILP Agreement, preamble
ninth indent.
2 EC – IT Products, para. 7.1084.
3 Article 1.4(a) of the ILP Agreement gives further instructions on the media in which publication must
take place, stating that information "shall be published, in the sources notified to the Committee on Import
Licensing".
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7. A common thread in these three Articles is that publication must contain information that
provides traders with a full picture of the relevant regulations. In Norway's view, the publication
requirements must be understood to contain an obligation to make public the process importers
must follow in order to import goods, including the different steps in these proceedings and the
authorities involved. Furthermore, the conditions for allowing or denying importation of goods
must be published, including the method used by the authorities to determine whether the
conditions are met. This includes information on any exceptions and changes to the rules.
Article 1.4(a) of the ILP Agreement states explicitly that "Any exception, derogations or changes in
or from the rules concerning licensing procedures or the list of products subject to import licensing
shall also be published in the same manner and within the same time periods as specified above."

8. The requirements in Articles 1.4(a) and 3.3 of the ILP Agreement have not been interpreted
by panels. However, the guidance given on the interpretation of Article X:1 of the GATT 1994 must
in our view also be relevant for the interpretation on the content of the publication requirement in
the two provisions on publication in the ILP Agreement.

9. The panel in EC – IT Products interpreted the phrase, "in such a manner as to enable
governments and traders to become acquainted with them," as follows:

"not any manner of publication that would satisfy the requirement, but only those that
would give power to or supply governments and traders with knowledge of the
particular measures that is "adequate" so that traders and Governments may become
"familiar" with them, or "known" to them in a "more or less complete" way."
4
10. In this case, the panel concluded that the European Commission's posting of the minutes of
the Customs Code Committee on the Comitology website did not fulfill this requirement, and
commented, "In particular, we note that there is nothing in the minutes, or the draft CNENs
attached, that would supply traders and governme nts with adequate knowledge of measures that
are or would be applied in trading with the EC member States."5 (emphasis added)

11. Similarly, in China – Raw Materials , China failed to publish the fact that it had not set an
export quota for zinc. The panel stated that:

"Concerning the requirement to publish promptly the relevant measures, in this case,
the omission to set a quota for zinc, the Panel observes that China has not denied that
it has not published the quota, or lack ther eof, for zinc. Additionally the failure to
publish the quota has had a practical result as interested exporters did not know that
effectively, they were unable to export zinc. The Panel considers that under its
Article X:1 obligations, China should have published its decision not to make "effective
the quota on zinc by setting a particular quota amount available for exports" in such a
manner as to enable governments and traders to become acquainted with that
decision"
6 (emphasis added)
12. In Dominican Republic — Import and Sale of Cigarettes , the Panel also focused on the type
of information the publication must contain:

"the Dominican Republic should have either published the information related to the
Central Bank average-price surveys of cigarettes or, alternatively, publish its decision
to not conduct these surveys and to resort to an alternative method, in such a manner
as to enable governments and traders to become acquainted with the method it would
use in order to determine the tax base for the Selective Consumption Tax on
cigarettes."7 (emphasis added)
13. In Thailand — Cigarettes (Philippines) , the Panel considered a claim regarding failure to
publish the methodology for determining MRSPs (which is an element of the tax rate for
cigarettes), and held that:

4 EC – IT Products , para. 7.1086.
5 EC – IT Products, para. 7.1087.
6 China – Raw Materials, para. 7.806.
7 Dominican Republic – Import and Sale of Cigarettes, para. 7.414.
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"The listing of the components consisting of the MRSP would not enable importers to
become acquainted with the detailed rules pertaining to the general methodology
within the meaning of Article X:1. We are of the view that for importers to become
acquainted with the methodology for determining the MRSP, it is important for them
to become familiar with, for instance, how the information they provide is processed.
Also, they need to be informed on how Thai Excise determines the marketing costs
where the information provided by importers is not accepted."8 (emphasis added)
14. These cases illustrate that Members must publish comprehensive and unambiguous
information regarding the applicable rules on the importation of goods. This points back to the
purpose underlying the publication requirement in all three provision, namely to ensure a
transparent regulatory framework for the benefit of all traders.

c) Transparency obligations in Article X:3(a) of the GATT 1994

15. The transparency obligations contained in Ar ticle X:1 of the GATT 1994 and Articles 1.4(a)
and 3.3 of the refer to as the ILP Agreement reflect a fundamental objective of the WTO, namely
to ensure predictable conditions for international trade. This fundamental objective is further
substantiated, among others, through the provisions of the GATT 1994 Article X:3(a).

16. In US – Shrimp, the Appellate Body made it clear that "Article X:3(a) of the GATT 1994
establishes certain minimum standards for transparency and procedural fairness in the
administration of trade regulations".
9

17. Furthermore, Members are obliged to comply with all three requirements in letter (a). In
Thailand – Cigarettes (Philippines), the Panel stated:
"The obligations of uniformity, impartiality and reasonableness are legally independent and
the WTO Members are obliged to comply with all three requirements. This means that […]
a violation of any of the three obligations will lead to a violation of the obligations under
Article X:3(a)."
10
18. Compliance with this provision is important, as transparent rules and a fair and predictable
administration of such rules are a prerequisite for international trade.

II. THE RELATIONSHIP BETWEEN THE GATT 1994 AND THE ILP AGREEMENT

19. Generally, Norway's view is that all WTO Ag reements must be interpreted harmoniously, so
that all relevant provisions are given meaning. We find support for this view in WTO jurisprudence.
In Argentina – Footwear (EC) , the Appellate Body considered the relationship between the
GATT 1994 and the Agreement on Safeguards and stated amongst other that:

"the provisions of Article XIX of the GATT 1994 and the provisions of the Agreement
on Safeguards are all provisions of one treaty, the WTO Agreement. They entered into
force as part of that treaty at the same time. They apply equally and are equally
binding on all WTO Members. […] a treaty interpreter must read all applicable
provisions of a treaty in a way that gives meaning to all of them, harmoniously. And,
an appropriate reading of this "inseparable package of rights and disciplines" must,
accordingly, be one that gives meaning to all the relevant provisions of these two
equally binding agreements."
11
20. Moreover, in US – Softwood Lumber IV, the Appellate Body further elaborated on the
relationship between the GATT 1994 and the Agreement on Safeguards and underlined that the

8 Thailand – Cigarettes (Philippines), para. 7.789.
9 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products (US
10 Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines (Thailand –
11 Appellate Body Report, Argentina – Safeguard Measures on Imports of Footwear (Argentina –
Footwear (EC)), WT/DS121/AB/R para. 81.
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provisions of the Agreement on Safeguards and the GATT 1994 apply on a cumulative basis. 12
These statements are clearly relevant also fo r the interpretation of the GATT 1994 and the ILP
Agreement.

21. The General interpretative note to Annex 1A sets out the relationship between the
GATT 1994 and the other agreements contained in Annex 1A. The ILP Agreement is a part of
Annex 1A and hence the interpretative note is appl icable to the relationship with the GATT 1994.
The interpretative note makes it clear that in the event of conflict between a provision of the
GATT 1994 and a provision of another agreemen t in Annex 1A, the provision of the other
agreement shall prevail to the extent of the conflict.13

22. In European Communities – Bananas (III), the complainants raised claims in respect of the
European Communities' import licensing regime under GATT 1994, the ILP Agreement and the
TRIMs Agreement. In the interpretation of the conc ept of "conflict" in the General interpretative
note, the Panel emphasized that situations of complementary obligations would not be in "conflict"
within the meaning of the General interpretative note."14

23. With regard to the relationship between the ILP Agreement and the GATT 1994, we note
that the preamble to the ILP Agreement recognize the provisions of the GATT 1994 as they apply
to import licensing procedures and that Members also express a desire to ensure that import
licensing procedures are not utilized in a manner contrary to the principles and obligations of the
GATT 1994. With this in mind, the Panel must ex amine closely whether there is a conflict between
the relevant provisions of the GATT 1994 and the ILP Agreement i n t h i s c a s e o r w h e t h e r t h e
provisions are in fact complementing each other.

III. CONCLUSION

24. Norway respectfully requests the Panel to ta ke account of the considerations set out above
in interpreting the relevant provisions of the covered agreements.

12 Appellate Body Report, United States – Final Countervailing Duty Determination with respect to
certain Softwood Lumber from Canada (US- Softwood Lumber IV), WT/DS257/AB/R), para. 134.
13 Annex 1A, Multilateral agreements on trade in goods, "General interpretative note to Annex 1A".
14 Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas
(EC – Bananas III), WT/DS27/R/USA, paras. 7.160-7.161.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX C-6
EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE KINGDOM OF SAUDI ARABIA
I. INTRODUCTION
1. Thank you. Madam Chairperson and distinguished Members of the Panel, the Kingdom of
Saudi Arabia would like to take this opportunity to affirm the positions set out in its Third Party
submission. Today, the Kingdom will summarize its views on several systemic issues relating to
the interpretation of the General Agreement on Tariffs and Trade and the Agreement on Import
Licensing Procedures: the proper scope of GATT Article XI; its relationship with the Import
Licensing Agreement; the permissibility of licensi ng systems under Article XI; and the appropriate
burden of proof for establishing a WTO violation.
II. LICENSING AND GATT ARTICLE XI
2. The first issue concerns the key principles for assessing the consistency of a non-automatic
licensing system with GATT Article XI, entitled "General Elimination of Quantitative Restrictions".
As it will be highlighted, if an underlying import measure is permissible under GATT Article XI, a
licensing system that administers such a measure will be consistent with Article XI, unless it
introduces and is designed to introduce an additional quantitative restriction.
3. Article XI and its title establish two fundamenta l principles. First, Article XI disciplines only
quantitative restrictions on imports or exports. According to the Appellate Body, "Article XI of the
GATT 1994 covers those prohibitions and restrictions that have a limiting effect on the quantity or
amount of a product being imported or exported ". This interpretation is consistent with previous
Appellate Body rulings that have stressed that the title of a provision helps to define its objective,
as well as with basic principles of treaty interpretation. Any interpretation of Article XI that
expands its coverage to all prohibitions or restrictions, whether or not related to import or export
quantities, would contradict the Appellate Body's ruling and render the Article's title meaningless.
4. In assessing whether a measure is an impermissible restriction on imports or exports under
GATT Article XI:1, a panel should first determine whether the measure imposes a formal
quantitative restriction, such as a set numerical limitation or prohibition on imports or exports. If
the measure does not impose such a formal quantitative restriction, a panel then should examine
the measure's design, architecture and structure in order to determine whether it has a limiting
effect, or whether it is designed to have a limiti ng effect, on import or export quantities. This
analytical approach is consistent with prior Panel rulings, as well as the principle that Article XI
only prohibits measures that impose quantitative restrictions on imports or exports. The Kingdom
submits that the Panel should apply this princi ple when assessing the WTO-consistency of the
relevant measures in this dispute.
5. Second, GATT Article XI:1 expressly permits, without exception, certain forms of restrictions
− "duties, taxes or other charges" – that may be implemented by a licensing system. Article XI
explicitly recognizes that such permissible measures are not self-implementing, but may be "made
effective through … import or export licences or other measures". This language refers to the
obvious fact that in order to enforce a permissible measure, a Member may also establish a
system to implement it. A licensing system theref ore may be consistent with Article XI where it
implements a permissible restriction. Licensing may operate automatically but may also require
the fulfilment of criteria necessary to the operat ion of the underlying measure. The latter instance
of so-called "non-automatic" licensing is not inconsistent per se with Article XI.
6. It is unchallenged that GATT Article XI perm its automatic import licensing systems, which
the Import Licensing Agreement defines as "licensi ng where approval of the application is granted
in all cases" where certain pre-established conditions are met. Such systems do not impose any
restrictions on imports. In this context, the mere presence of, for example, an application process
would not render an import licensing system "non-automatic". The same principles would apply to
the permissibility of export licensing.
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7. GATT Article XI also allows certain "non-automatic" import or export licensing systems.
Based on the Import Licensing Agreement, "non-aut omatic" licences are a broad residual category
of all licences that are not "automatic", which, as highlighted, means "granted in all cases".
Licences that administer permitted import or ex port restrictions are "non-automatic" when they
impose requirements that might not be fulfilled in all cases (for example, the payment of a duty).
The text of Article XI:1 anticipates that non-automatic requirements may be necessary to
implement a permitted restriction: the provision permits duties, taxes or other charges "made
effective through… import or export licences" . The phrase "made effective" recognizes the
imposition of requirements necessary to the operation of the permitted restriction. Non-automatic
licensing systems are thus consistent with Article XI to the extent that they merely have "made
effective" such restrictions.
8. The permissibility of non-automatic licensing systems under Article XI also is consistent with
Article 3 of the Import Licensing Agreement, which establishes specific standards for the
imposition of "non-automatic import licensing". There would be no reason to establish such
standards if non-automatic licensing were per se inconsistent with Article XI. GATT Article XIII,
which allows the use of import licences "in connection with" permissible import restrictions, further
supports the position that non-automatic licensing may be consistent with Article XI.
9. As Article XI expressly permits "duties, taxes or other charges", non-automatic licensing will
be WTO-consistent whenever it implements an otherwise permissible restriction in a form that
does not create, and is not designed to create, additional limiting effects on import or export
quantities beyond what is necessary to administer the permitted restriction. The Panel in China –
Raw Materials agreed with this approach and, import antly, many WTO Members use licensing as
the means to implement a permissible restriction on imports or exports.
10. For these reasons, Saudi Arabia respectfully requests the Panel to affirm the principle that
non-automatic licensing schemes are not per se inconsistent with GATT Article XI. Rather, a non-
automatic licensing scheme is consistent with GA TT Article XI where, for example, it imposes
conditions that merely implement an otherwise permissible restriction, such as duties, taxes or
other charges, in a manner that does not create an additional quantitative restriction beyond what
is necessary to administer the permitted restriction.
11. On the other hand, Article XI prohibits non-automatic licensing systems that independently
act as impermissible quantitative restrictions. Such systems include those which implement a
permitted import or export restriction but impose an additional trade or administrative restriction;
or which are discretionary. Non-automatic licensing is otherwise permitted by Article XI.
12. Where a licensing system implements a perm issible import or export measure and is non-
automatic, the Panel should examine whether the system is itself an impermissible quantitative
restriction. This is essentially a question of whether the licensing requirements do no more than is
necessary to administer the underlying measur e, and Article 3.2 of the Import Licensing
Agreement provides guidance in this regard. It supports the conclusion that a non-automatic
licensing scheme that implements a permissible restriction will be consistent with WTO rules unless
it, first, has restrictive effects that are additional to those caused by the imposition of the
permissible restriction; second, does not correspond in scope and duration to the underlying
restriction; or, third, is "more administratively burdensome than absolutely necessary to
administer the measure".
13. Finally, it is important to distinguish between non-automatic and "discretionary" licensing
systems, as the two terms are not interchangeable. Discretionary licensing systems are a subset of
non-automatic licensing systems that are inconsistent per se with GATT Article XI. A discretionary
licensing system that implements a permissible restriction (such as a duty) would constitute an
additional quantitative restriction in violation of Article XI:1. The Kingdom requests that the Panel
clarify the distinction between non-automatic and discretionary licensing.
III. BURDEN OF PROOF FOR ES TABLISHING A WTO VIOLATION
14. The Kingdom also wishes to clarify the burden of proof that applies when claims are made
against unpublished measures – a key issue in this dispute. It is well established that a
complaining party bears the burden to establish a prima facie case of a violation for each element
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of each claim, based on factual evidence and legal arguments. To demonstrate a violation, a
complainant must satisfy both an evidentiary and le gal burden of proof, and this must be done for
"each of the elements of the claim" and for each independent claim. If a complaining party
conflates evidence and legal argument with respect to two distinct claims, one or both of the
party's claims will fail.
15. Although a claim's sufficiency will vary by measure, provision and case, the same
prima facie standard applies to all types of claims, re gardless of the nature of the measure at
issue. A complaining party challenging an unpublished measure must establish a prima facie case
that, first, the unpublished measure exists and, second, the measure violates WTO rules.
16. The inherent difficulty of making a prima facie case for the existence of an unpublished
measure does not excuse the requirement to satisfy the burden of proof. The Appellate Body has
underscored the evidentiary burden that must be met to demonstrate the existence of an
unpublished measure. Allegations that rest on unproven assumptions or unsupported inferences as
to the existence of a measure will fail.
17. Several Panels have endorsed and applied this standard, which allows for indirect proof only
as long as it is logical and fact-based. Panels will "carefully and rigorously" examine the evidence
put forth by the Member to demonstrate a measure's existence, rather than assuming it. WTO
jurisprudence therefore provides that the failur e of a complaining Member to demonstrate an
unpublished measure's existence will preclude a pane l from having a "basis for finding that there
are such decisions", and the Member thus will not have met its initial evidentiary burden.
Although, as a practical matter, it may be more difficult to challenge an unpublished measure, the
same prima facie burden of proof applies.
18. If a complaining party establishes the existence of a challenged measure, the party must
then make a prima facie case that the measure – or combination of measures – is inconsistent
with WTO rules. The fact that a measure is unpublished does not change the complaining party's
burden of proof for this element. The evidence necessary to demonstrate that a measure violates 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".
19. This requirement applies in all cases and for every measure that is alleged to constitute a
violation. The complexity of a measure, or its combination with other measures, does not diminish
the complaining party's burden of proof.
20. The Kingdom respectfully requests the Panel to consider these important principles when
assessing the claims against unpublished measures in this dispute. As a practical matter, it might
be more difficult for a complainant to make a prima facie case demonstrating the existence and
nature of an alleged measure that is unpublished. T h e s a m e b u r d e n o f p r o o f a p p l i e s , h o w e v e r ,
whether the complainant's claim involves a measure that is published or unpublished, written or
unwritten.
IV. CONCLUSION
21. Madam Chairperson, the Kingdom urges the Panel to consider the Kingdom's views on the
interpretive issues set out in its submission. The Panel's decision will serve as an important
precedent with respect to key systemic issues under the WTO Agreements.
22. This concludes the Kingdom's statement. Thank you for your attention.
WT/DS438/R/Add.1 • WT/DS444/R/Add.1 • WT/DS445/R/Add.1

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ANNEX C-7
EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINESE TAIPEI
1. The Separate Customs Territory of Taiwan, Pe nghu, Kinmen and Matsu, as a third party in
this proceeding, addresses two issues in this submission: (1) whether the essence of the
challenged Restrictive Trade Related Requirements (RTRRs) measures was conveyed in the
complainants' requests for consultations; (2) whether Article XI:1 of the General Agreement on
Tariffs and Trade 1994 ("GATT 1994") applies to a broad range of measures not limited to
substantive rules of importation.

I. THE
 ESSENCE OF THE CHALLENGED RTRRS MEASURES WAS CONVEYED IN THE
COMPLAINANTS' REQUESTS FOR CONSULTATIONS

2. Regarding the first issue, we are concerned about Argentina's overly narrow interpretation of
the scope of the consultation requests because of the important role consultations play during the
dispute settlement process. In its first written submission, Argentina argues that because the
RTRRs were not identified as "measures" in the request of consultations, they bear "no relationship
whatsoever" to the measures, namely the Declaraciónes Juradas Anticipadas de Importación
(DJAI) and Certificado de Importacion ("Import Certificates"), in the requests for consultation.
1

3. However, comparing the complainants' consultations requests and panel requests, the
RTRRs mentioned in the respective panel requests, while not specifically identified as "measure",
mirror the trade policies mentioned in the consultation requests. The RTRRs and the policies
described, such as limiting import, balancing trade, incorporating local content, increasing
investment in Argentina, all bear the same "essence" in terms of their purpose, application, and
effect, and thus are distinguishable from the "legally distinct and separate" measures in US –
Certain EC Products
2, and the "wholly new type of measure" in US – Anti-Dumping and
Countervailing Duties in China.3

4. For the reasons above, we consider that notwithstanding the terminology used, the RTRRs
referred to in the terms of reference and complainants' written submissions have not changed the
essence of the measures at issue or expanded the scope of the dispute and thus are properly
before this Panel.
4

II. ARTICLE XI:1
 OF THE GATT 1994 APPLIES TO A BROAD RANGE OF MEASURES NOT
LIMITED TO SUBSTANTIVE RULES OF IMPORTATION

5. Article XI:1 of GATT 1994 prohibits restrictions other than duties, taxes or other charges,
made effective through quotas, import or export licenses or other measures, instituted or
maintained by any Member on the importation of any product of the territory of any other
Member. In this case, the complainants argue that the DJAI procedure constitutes a "restriction"
on importation prohibited by Article XI:1.
5

6. In response, the respondent argues that "the DJAI procedure is a procedure and not a
substantive rule of importation" and therefore is not subject to Article XI:1. 6 Accordingly, the
respondent seems to argue that Article XI:1 applies only to substantive rules of importation.

7. We disagree. Neither the text of Article XI:1 nor the current jurisprudence supports this
reading of the rule. First, Article XI:1 refers only to "measures" and not "substantive laws or
regulations"; the former is a broader concept that encompasses the latter. What is prohibited by

1 Argentina's first written submission, paras. 122-128, 144.
2 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu's third party submission,
para. 5.
3 Argentina's first written submission, para. 143.
4 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu's third party submission,
para. 8.
5 United States' first written submission, paras. 101 et seq.; Japan's first written submission, paras. 107
et seq.; and European Union's first written submission, paras. 237 et seq.
6 Argentina's first written submission, paras. 297-299.
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Article XI:1 are prohibitions or restrictions made effective through quotas, import or export
licenses or other measures. Furthermore, the text of the rule does not limit its applicability to only
procedural or substantive rules of importation or exportation.

8. Second, the precedents, Japan
– Semi-Conductors, EEC – Minimum Import Prices, Argentina
– Hides and Leather , and India – Quantitative Restrictions , as elaborated in our written
submission, reinforce this observation and demons trate that the interpretation of "measures"
referred to in Article XI:1 is very broad and its applicability is not limited only to substantive rules
of importation.

9. Finally, the distinction between a "procedural" and "substantive" rule is futile. The main
purpose of Article XI:1 of GATT 1994 is the genera l elimination of quantitative restrictions. Thus,
regardless of whether a measure is procedural or substantive in nature, if the application of those
measures results in a quantitative restriction, Article XI:1 is relevant and should be applied.

10. Thus, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu is of the
opinion that the interpretation, which limits the application of Article XI:1 to only substantive rules
of importation, is inconsistent with the text and jurisprudence under Article XI:1 and may diminish
a Member's obligation under that provision.
7

7 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu's third party submission,
para. 14.
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ANNEX C-8
EXECUTIVE SUMMARY OF THE ARGUMENTS OF TURKEY
I. Whether the DJAI Requirement is an Ordinary Customs Procedure or a
Non-Automatic Import Licensing within the Meaning of Import Licensing
Agreement and Article XI of the GATT 1994?

1. In their submissions, the complaining parties claim that the Argentinean DJAI Requirement
is a non-automatic import licensing within the meaning of Import Licensing Agreement and
Article XI of the GATT 1994 and is contrary to the obligations of Argentina stemming from various
Articles of the Import Licensing Agreement and Article XI of the GATT 1994. In its submission,
Argentina challenges the allegations and asserts that the DJAI Requirement is a customs formality
subject to Article VIII of the GATT 1994. In othe r words, Argentina suggests that as a customs
formality, the DJAI Requirement should not be evaluated under the Import Licensing Agreement
and Article XI of the GATT 1994. Therefore in Turkey's view, one of the key issues before the Panel
is the proper characterization of the DJAI Requirement.

2. In order to determine whether the DJAI requir ement is a license, firstly, the texts of the
Agreements themselves should be examined. Although Article XI:1 of the GATT makes an explicit
reference to "import licenses", it does not define this term. The provisions of the Import Licensing
Agreement, however provides a definition of import licensing which could also offer a useful
context in defining the term "import licenses" for the purposes of Article XI:1 of the GATT 1994 as
well.

3. Article 1(1) of the Import Licensing Agreement states that:

For the purpose of this Agreement, import licensing is defined as administrative
procedures (1) 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.
4. Furthermore a footnote to Article 1(1) of th e Import Licensing Agreement provides that the
term "administrative procedures" which are referred to as "licensing" covers "other similar
administrative procedures" as well.

5. Therefore, in order to referred to an import licensing within the meaning of Article 1(1) of
the Import Licensing Agreement : i) there should be an administrative procedure used for the
operation of the import licensing regime, requir ing the submission of an application or other
documentation as a prior condition for importation and ii) such procedures should not be required
for customs purposes.

6. In its submission, Argentina essentially argues that an administrative procedure may
constitute a license only if it is used for the operation of import licensing regimes such as the
administration of quantitative restrictions or other similar measures
1. In other words, Argentina
suggests that administrative procedures and the import licensing regimes are different and
separate elements that needs to be analysed independently

7. In Turkey's view, there could be cases that an administrative procedure encompasses import
licensing regime. In this case, the administrative procedure itself may require the submission of an
application or other documentation to the relevant administrative body as a prior condition for
importation. Where such a situation happens, Turkey considers that there is no need to make a
separate analysis on the underlying import licensing regimes such as the administration of
quantitative restrictions or other similar measures. Turkey believes that a case by case analysis is
needed for a determination of whether a set of ad ministrative procedures constitutes an "import
licensing regime". In making such an analysis, the design, structure and operation of the

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administrative procedure should carefully be review ed. Therefore, Turkey asks the Panel to review
carefully the design, structure and operation of the DJAI Requirement for making the necessary
determination on whether this requirement is a "license" within the meaning of the Import
Licensing Agreement.

8. Argentina further argues that application and documentation requirements for the purposes
of the customs procedures do not constitute an "import license" under Article 1.1 of the Import
Licensing Agreement. Turkey agrees with Argentin a that customs procedures do not fall under the
definition of import licensing. So, the crucial point before the Panel is whether the DJAI
Requirement is required for the customs purposes. Argentina contends that through the DJAI
procedure, Argentina collects and processes, in advance of importation, information that is
necessary for the adequate performance of its customs control functions
2. On the other hand, the
complainants provide different reasons for explaining why the DJAI Requirement is not needed for
the customs purposes
3. Turkey finds these reasons very impo rtant and believes that Panel will
carefully examine them all.

9. In addition to complainants arguments, Turk ey would like to emphasize that the fact that
some of the information requested as part of an administrative procedure, is also requested for the
customs clearance process, does not necessarily make the administrative procedure a part of the
customs clearance process. In Turkey's view, the important point is whether there is a separate
customs clearance procedure in addition to th e DJAI Requirement. Furthermore, the design,
structure and operation of the administrative procedure should also be taken into account in
deciding the matter.

II. Whether the DJAI Requirement Itself is a Measure that Falls within the Scope of
Article XI of the GATT 1994.

10. In its submission, Argentina argues that the DJAI is a procedure and asserts on an arguendo
basis that any claim of inconsistency of the DJAI procedure to Article XI:1 of GATT 1994 should
establish that the procedure itself has a limiting effect on the quantity or amount of goods being
imported, separate and apart from the limiting effects of any substantive rule of importation that it
implements, i.e. restrictive trade related requirements.

11. In order to determine whether a measure falls under the Article XI of the GATT 1994, the
text of the Article should carefully be examined. Article XI:1 provides that

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 contracting party on the importation of any product of
the territory of any other contracting party or on the exportation or sale for export of
any product destined for the territory of any other contracting party. (emphasis
added)
12. Panels in India-Quantitative Restrictions and US – Poultry found that the text of Article XI:1
of the GATT 1994 is "broad" in scope, providing for a general ban on import or export restrictions
or prohibitions "other than duties, taxes or other charges"
4.

13. The Panel in China-Raw Materials followed the similar path and provides that

Article XI:1 by its terms prohibits restrictions or prohibitions that are made effective
through a variety of means not solely through a category of measures that may be
considered formal quantitative restrictions, such as a quota. Article XI:1 also prohibits
restrictions effected through export licenses, as well as an unqualified category of
"other measures". In the Panel's view, the fact that the title uses the term

2 Argentina ‘s first written submission, para. 287.
3 European Union's first written submission paras. 281-282; Japan's first written submission para.166;
United States of America's first written submission paras. 48 and 125.
4 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, 1799, para 5.128; Panel Report, United States – Certain Measures Affecting Imports of Poultry
from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, 1909, para 7.450.
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"quantitative restrictions" does not change the fact that a broad category of "other
measures" falls within the scope of Article XI:1
The Panel's view is consistent with findings of other GATT and WTO panels that types
of measures "other" than quotas, import or export licences, duties, taxes or charges
that have a "limiting effect" or impose a "limiting condition" are prohibited under
Article XI:1. Panels have assessed such measures by examining their design and
structure to determine whether they have a "limiting" or "restrictive" effect.
The Panel will adopt a similar analytical approach. The Panel sees no merit in seeking
to determine whether or not a measure is permissible under Article XI:1 based solely
on its label. In other words, the Panel does not find useful for its analysis here
whether a measure is categorized as an "automatic" or "non-automatic" licence.
Indeed, the obligation set forth in Article XI:1 does not distinguish between types of
import or export licences that would be prohibited, be they automatic, non-automatic
or discretionary. Rather, it concerns "prohibitions or restrictions" including those
"made effective through ... import or expo rt licenses". Hence, our analysis will
examine the design and structure of the licence to determine if it has a "limiting" or
"restrictive" effect.
5(emphasis added)
14. Turkey finds the mentioned Panels reasoning's persuasive and agrees with the Panels that a
broad category of measures, including the administrative procedures either applied as a licence or
not, fall within the scope of Article XI:1. Turkey considers that the important thing is whether a
measure has a "limiting" or "restrictive" effect on imports. In this regard, the label given or a
characterization of a rule by a WTO Member as "substantive" or "procedural" should not change
the outcome. Especially where a prohibition or a restriction is implemented through an
administrative procedure itself, in Turkey's view, the Panel should examine the design and
structure and operation of the measure to determine whether it has a "limiting" or "restrictive"
effect on imports.

III. Conclusion

15. Turkey appreciates this opportunity to presen t its views to the Panel. Turkey requests this
Panel to review carefully the comments stated in this submission, in interpreting GATT 1994 and
the Import Licensing Agreement.

WT/DS395/R / WT/DS398/R / 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, para. 7.915.
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ANNEX D
PRELIMINARY RULINGS
Contents Page
Annex D-1 Preliminary Ruling by the Panel, 16 September 2013 D-2
Annex D-2 Preliminary Ruling by the Panel, 20 November 2013 D-14
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ANNEX D-1
PRELIMINARY RULING BY THE PANEL
16 September 2013

1 PROCEDURAL BACKGROUND
1.1. In its first written submission on 7 August 2013, Argentina requested that the Panel issue a
preliminary ruling that the so-called "Restrictive Trade Related Requirements" (RTRRs) identified in
the panel requests submitted by the European Union, the United States and Japan (the
complainants)
1 are outside the Panel's terms of reference. 2 Argentina asked the Panel to issue the
preliminary ruling "preferably after the First Substantive Meeting of the Panel with the Parties, in a
manner that effectively preserves Argentina's due process rights".3
1.2. On 9 August 2013, the Panel invited the third parties to comment on Argentina's request for
a preliminary ruling in their written submissions, due on 28 August 2013. In the same letter, the
Panel invited the complainants to respond in writing to Argentina's request by 10 September 2013.
In response to the Panel's invitation, two third parties commented on Argentina's request for a
preliminary ruling in their written submissions: Australia and Chinese Taipei. As requested by the
Panel, on 10 September 2013 the complainants submitted their respective responses to
Argentina's request.
2 MAIN ARGUMENTS OF THE PARTIES AND THE THIRD PARTIES
2.1 Main arguments of the parties
2.1.1 Argentina
2.1. Argentina requests that the Panel issue a preliminary ruling that the so-called "Restrictive
Trade Related Requirements" (RTRRs) identified in the complainants' panel requests are outside
the Panel's terms of reference.
4 Argentina considers that the RTRRs are not included in the request
for consultations and bear no relationship to the measures actually identified by the complainants
in their respective requests for consultations.
5 In Argentina's view, because the complainants did
not explicitly identify the RTRRs as a separate measure in their requests for consultations, they
cannot properly include them in their respective panel requests. 6 Furthermore, Argentina contends
that the inclusion of the RTRRs in the panel requests, and the claims that relate to them,
impermissibly expands the scope of the dispute an d changes its essence from the terms originally
identified in the requests for consultations.
7
2.2. In its first written submission, Argentina also raised two additional arguments against the
complainants' claims.
2.3. First, Argentina argues that the three complainants have raised claims in their panel requests
against the RTRRs as a broad unwritten measure. Argentina notes that the European Union's panel
request refers to the RTRRs "viewed as separate measures", and also "as an overarching measure

1 Request for the Establishment of a Panel by the European Union, Argentina – Import Measures,
WT/DS438/11 (7 December 2012); Request for the Establishment of a Panel by the United States, Argentina –
Import Measures, WT/DS444/10 (7 December 2012); Request for the Establishment of a Panel by Japan,
Argentina – Import Measures, WT/DS445/10 (7 December 2012). In all successive footnotes, these documents
will be referred to as European Union's Panel Request, United States' Panel Request and Japan's Panel Request,
respectively.
2 Argentina's first written submission, paras. 15, 112-146 and 360.
3 Ibid. para. 146.
4 Ibid. paras. 15, 112-146 and 360.
5 Argentina's first written submission, paras. 121, 122-128.
6 Ibid. paras. 115-121.
7 Ibid. para. 121.
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aiming at eliminating trade balance deficits and/or substituting imports by domestic products". 8
Argentina asserts that this unwritten overarching measure is outside the Panel's mandate because
there is no reference to it in any of the complainants' requests for consultations.
9
2.4. Second, Argentina asserts that, although all three complainants have raised claims against
the RTRRs "as applied", only the European Union's panel request identifies the specific RTRRs that
are the object of those claims. 10 Argentina argues that the inclusion by the European Union in its
panel request of a list of instances of application of RTRRs is an impermissible departure from its
request for consultations. In Argentina's view, the European Union should have identified in its
request for consultations at least some of the specific instances of application of the RTRRs that
are the object of its claims.
11 Argentina argues further that, neither the requests for consultations
filed by the United States and by Japan, nor thei r panel requests, "identify any measures that are
the subject of their … claim that 'any application' of 'the requirements' is inconsistent with the
listed provisions of the covered agreements". 12 Argentina argues that any claims with respect to
measures that have neither been identified in a complainant's request for consultations nor in the
panel request are outside the panel's terms of reference.13
2.1.2 Complainants
2.5. All three complainants reject Argentina's request and argue that the RTRRs were properly
identified in the requests for consultations.
14
2.6. The European Union adds that Argentina's request is untimely, since Argentina should have
raised any concerns related to the request for consultations at an early stage, and the Panel
should reject Argentina's request as inadmissible.
15 The European Union also asserts that its
challenge against the RTRRs, both as a single overarching measure and as separate measures,
falls within the Panel's terms of reference.16
2.7. Japan argues that there is no requirement that, for an "as applied" claim, the complainant
must identify specific instances of a measure's application. 17 Japan adds that Argentina's decision
not to raise its procedural objection at an earlier stage, as well as its decision not to address in its
first written submission any of the complainants' arguments related to the RTRRs, should not be
allowed to delay the proceedings, or to impair the complainants' ability to respond to any
substantive arguments or defences raised by Argentina.
18
2.8. The European Union and Japan ask the Panel to rule on Argentina's request as soon as
possible, and before the date of the first substantive meeting with the parties, so as to allow
parties to engage in a debate on the substance of the related claims at the meeting; the European
Union adds that, if necessary, the Panel may communicate the reasons for its decision at a later
stage in the proceedings.
19
2.2 Main arguments of the third parties
2.9. The only two third parties that commented in their written submissions on Argentina's
request for a preliminary ruling –Australia and Ch inese Taipei– consider that the RTRRs challenged

8 Ibid. para. 135.
9 Ibid. paras. 135-136.
10 Ibid. paras. 129-134 and 138.
11 Ibid. para. 133.
12 Ibid. para. 134.
13 Ibid. para. 134.
14 European Union's response to Argentina's request for a preliminary ruling, paras. 3, 12, and 22-39;
United States' response to Argentina's request for a preliminary ruling, paras. 1 and 6-19; Japan's response to
Argentina's request for a preliminary ruling, paras. 2 and 6-28.
15 European Union's response to Argentina's request for a preliminary ruling, paras. 2, 5-11 and 55.
16 Ibid. paras. 40-45.
17 Japan's response to Argentina's request for a preliminary ruling, paras. 25-28.
18 Japan's response to Argentina's request for a preliminary ruling, paras. 3 and 29-32.
19 European Union's response to Argentina's request for a preliminary ruling, para.56; Japan's response
to Argentina's request for a preliminary ruling, paras. 5 and 34.
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by the complainants were properly identified in the requests for consultations and are within the
Panel's terms of reference.20
3 EVALUATION BY THE PANEL
3.1 Introduction
3.1. As will be discussed in more detail below, in their respective panel requests, the complainants
assert that Argentina requires economic operators to undertake certain actions with a view to
pursuing the country's policy objectives of elim inating trade balance deficits and substituting
imports. According to the complainants, those actions include: (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. The complainants refer to these
requirements as the "Restrictive Trade Related Requirements" (RTRRs).
3.2. Argentina's preliminary ruling request is based on the contention that the RTRRs were not
identified by the complainants in their respecti ve requests for consultations and are therefore
outside the Panel's terms of reference.
3.3. In examining this issue, the Panel is guided by the Appellate Body's ruling in US – Upland
Cotton, where it noted that, for the purpose of examining the sufficiency of the request for
consultations, a panel should look at the written request for consultations itself and not consider
what may have happened in the consultations.
21
3.4. Article 4.4 of the DSU, which contains the re quirements for requests for consultations, is the
relevant starting point for the Panel's analysis. In its relevant section, Article 4.4 of the DSU states
that:
Any request for consultations shall be submitted in writing and shall give the reasons
for the request, including identification of the measures at issue and an indication of
the legal basis for the complaint.
3.5. Previous panels have dealt with objections related to a complainant's request for
consultations. Notably, the panel in Canada – Aircraft d e t e r m i n e d t h a t " a p a n e l ' s t e r m s o f
reference would only fail to be determinative of a panel's jurisdiction if … the complaining party's
request for establishment [of a panel] were found to cover a 'dispute' that had not been the
subject of a request for consultations".
22 In the view of that panel,
[T]his approach seeks to preserve due process while also recognising that the
"matter" on which consultations are requested will not necessarily be identical to the
"matter" identified in the request for establishment of a panel. The two "matters" may
not be identical because, as noted by the Appellate Body in India – Patents , "the
claims that are made and the facts that are established during consultations do much
to shape the substance and the scope of subsequent panel proceedings"
23.24
3.6. Along the same lines, the Appellate Body in Brazil – Aircraft noted that "Articles 4 and 6 of
the DSU… [do not] require 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

20 Australia's third-party written submission, paras. 6-11; Chinese Taipei's third-party written
submission, paras. 2-8 and 15.
21 Appellate Body Report, US – Upland Cotton, paras. 286-287. See also Panel Report, Korea – Alcoholic
Beverages, para. 10.19.
23 (footnote original) India - Patent Protection for Pharmaceuticals and Agricultural Chemical Products,
WT/DS50/AB/R, adopted 16 January 1998, para. 94.
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establishment of a panel". 25 The Appellate Body agreed with the panel's statement in that case
that:
One purpose of consultations … is to "clarify the facts of the situation", and it can be
expected that information obtained during the course of consultations may enable the
complainant to focus the scope of the matter with respect to which it seeks
establishment of a panel.26
3.7. With respect to the identification of the le gal basis of the complaint as required in the latter
part of Article 4.4 of the DSU quoted above, the Appellate Body in Mexico – Anti-Dumping
Measures on Rice noted that consultations may lead to the reformulation of a complaint, since a
complaining party may learn of additional information or get a better understanding of the
operation of a challenged measure:
A complaining party may learn of additional information during consultations—for
example, a better understanding of the operation of a challenged measure—that could
warrant revising the list of treaty provisions with which the measure is alleged to be
inconsistent. Such a revision may lead to a narrowing of the complaint, or to a
reformulation of the complaint that takes into account new information such that
additional provisions of the covered agreem ents become relevant. The claims set out
in a panel request may thus be expected to be shaped by, and thereby constitute a
natural evolution of, the consultation process.
27
3.8. Furthermore, as long as the complaining party does not inappropriately expand the scope of
the dispute or change its essence, the Appellate Body has cautioned against imposing too rigid a
standard for the required identity between the sco pe of the consultations and the panel request,
"as this would substitute the request for consultations for the panel request". 28 As indicated by the
Appellate Body, pursuant to Article 7 of the DSU, a panel's terms of reference are governed by the
panel request, and not by the request for consultations.29
3.9. In US – Shrimp (Thailand) / US – Customs Bond Directive , the Appellate Body noted that,
"whether a complaining party has 'expand[ed] the scope of the dispute' or changed the 'essence'
of the dispute through the inclusion of a measure in its panel request that was not part of its
consultations request must be determined on a case-by-case basis". 30 In that case, the Appellate
Body agreed with the panel's reliance on the Appellate Body Report in US – Certain EC Products ,
where the Appellate Body "treated the absence of an explicit reference to a measure in the
consultations request as one factor for excluding a measure from the panel's terms of reference; it
thereafter proceeded to consider whether the relevant measures in question were separate and
legally distinct".
31 Accordingly, the Appellate Body found that the panel did not err by applying this
test and ultimately excluding certain measures from its terms of reference.32
3.10. In sum, previous panels and the Appellate Body have clarified that, when considering
whether a measure has been included in a request for consultations, a panel should limit itself to
the written request for consultations and not consider what may have happened in the
consultations. Additionally, a precise and exact identity between the measures that were the
subject of the request for consultations and the me asures identified in the panel request is not
necessary. The critical point is whether a complaining party has expanded the scope of the dispute
or changed its essence through the inclusion of a measure in its panel request that was not part of
its request for consultations.

25 Appellate Body Report, Brazil – Aircraft, para. 132 (emphasis original).
26 Ibid.
27 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.
28 Appellate Body Report, United States – Upland Cotton, para. 293.
29 Appellate Body Report, US – Carbon Steel, para. 124; Appellate Body Report, US – Upland Cotton,
para. 293.
30 Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive, para. 293 (brackets in
original).
31 Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive, para. 295 (referring
to Appellate Body Report, US – Certain EC Products, paras. 69-75) (emphasis original).
32 Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive, para. 295.
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3.11. One approach for conducting this type of analysis it to consider whether there is an explicit
reference in the request for consultations to a measure included in the panel request. If no such
reference exists, a panel may proceed to consider whether the measure in question is separate
and distinct from the measure or measures included in the request for consultations. Finally, a
panel should take into account that the consultations may legitimately lead to the reformulation of
a complaint, since during consultations a complaining party may learn of additional information or
get a better understanding of the operation of a challenged measure. Nevertheless, the right to
reformulate a complaint is qualified by the requirement that complainants not expand the scope of
the dispute or change its essence.
3.2 Whether the RTRRs were properly identifi ed by the complainants in their requests
for consultations
3.12. Argentina argues that, because the RTRRs were not explicitly identified by the complainants
as a separate measure in their requests for consultations, the complainants cannot properly
include them in their respective panel requests.
33 In Argentina's view, this inclusion expands the
scope of the dispute and changes its essence from th at originally identified by the complainants in
their requests for consultations.34
3.13. For the purpose of its preliminary ruling request, Argentina does not dispute that the
complainants identified the RTRRs as a measure at issue in their respective panel requests.35
3.14. Argentina recognizes that the complainants' requests for consultations: (i) refer to "certain
commitments" that Argentina allegedly requires importers to undertake, and describe five types of
such commitments; and, (ii) refer also to the alleged relationship between these commitments and
the issuance of Import Certificates ( Certificados de Importación, CIs) and approval of the Advance
Sworn Import Declarations (Declaraciones Juradas Anticipadas de Importación, DJAIs).
36
3.15. Argentina nevertheless contends that, in their discussion of such commitments in the
requests for consultations, the complainants did not refer to any separate "measures" that might
themselves be subject to challenge, or to an y legal instruments providing for such measures. 37 In
other words, Argentina acknowledges that, in thei r respective requests for consultations, the
complainants referred to the commitments Argentina allegedly requires. However, in Argentina's
view, such references are not sufficient to include the RTRRs within the Panel's terms of reference.
Instead, Argentina contends that the description of the commitments in the requests for
consultations appears to be nothing more than a discussion by the complainants of purported
evidence relating to the allegedly "non-transparent" issuance of CIs and the approval of DJAIs.
38
3.16. Argentina also argues that the reference to "these measures" in the sixth paragraph of each
of the requests for consultations can only be understood to refer to the first two measures (the CIs
and the DJAIs) and not to the commitments required from importers. In support of its argument,
Argentina asserts that the following paragraph of the requests for consultations (the seventh
paragraph), states that the "legal instruments through which Argentina 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."
39
Argentina contends that the legal instruments listed in the Annexes to the requests for
consultations all relate to the DJAIs and the CIs.
40

33 Argentina's first written submission, paras. 115-121.
34 Ibid. paras. 15 and 121.
35 European Union's Panel Request, p. 3; United States' Panel Request, p. 4; Japan's Panel Request,
p. 3.
36 Argentina's first written submission, para. 124.
37 Ibid. para. 125.
38 Ibid.
39 (Footnote original) Emphasis added.
40 Argentina's first written submission, para. 127 (referring to Request for Consultations by the
European Union, Argentina – Import Measures, WT/DS438/1 (30 May 2012), p. 2, paras. 6-7; Request for
Consultations by the United States, Argentina – Import Measures, WT/DS444/1 (23 August 2012), p. 2,
paras. 6-7; and Request for Consultations by Japan, Argentina – Import Measures, WT/DS445/1 (23
August 2012), pp. 1-2, paras. 6-7). In all successive footnotes, these documents will be referred to as
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3.17. The Panel will start by examining whether th ere is an explicit reference to the RTRRs in the
requests for consultations. In doing this, the Panel recalls that the panel in Canada – Wheat
Exports and Grain Imports compared the language of DSU Articles 4.4 and 6.2 and noted that
Article 4.4 refers to "measures at issue", whereas Article 6.2 refers to "specific measures at issue".
In that panel's view, the difference in language suggests that the requirements for identifying the
measures at issue in a request for consultations are less stringent than those for a panel request.41
As noted earlier, a precise and exact identity between the measures identified in the requests for
consultations and the specific measures identified in the panel requests is not necessary.
3.18. The complainants identified the measures at issue in their respective requests for
consultations in almost identical terms. 42 The Panel will reproduce below the relevant part of the
request for consultations submitted by the European Union, and note the main differences with the
requests for consultations submitted respectively by the United States and Japan.
Request for Consultations by the European Union
…
Argentina subjects the importation of goods into Argentina to the presentation for
approval ( validación) of a so-called Declaración Jurada Anticipada de Importación
("DJAI"). The relevant legal instruments are listed in Annex I.
43
Argentina subjects the importation of certain goods into Argentina to various types of
licences: Licencias No Automáticas de Importación in the form of Certificados de
Importación (CIs); Licencias Automáticas Previas de Importación (LAPI); and
Certificados de Libre Circulación (CLCs). The legal instruments providing for these
measures are listed in Annex II, Annex III and Annex IV, respectively.
44
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 the products they manufacture in Argentina, not to transfer benefits abroad
and/or to control their prices.
45
The issuance of LAPIs, CIs and CLCs and the approval of DJAIs is being systematically
delayed or refused by the Argentinean auth orities on non-transparent grounds. Often
the Argentinean authorities make the issuance of LAPIs, CIs and CLC and the approval
of [DJAIs] conditional upon the importers undertaking to comply with the trade
restrictive commitments mentioned above.
46
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 appear to be aimed at

European Union's Request for Consultations, United States' Request for Consultations and Japan's Request for
Consultations, respectively.
41 Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.10.
42 European Union's Request for Consultations, p. 1, paras. 2-5; United States' Request for
Consultations, p. 1, paras. 2-5; Japan's Request for Consultations, p. 1, paras. 2-5.
43 In their respective requests for consultations, the United States and Japan qualify the DJAIs as a
"non-automatic import licence". See United States' Request for Consultations, p. 1, para. 2; Japan's Request
for Consultations, p. 1, para. 2.
44 In their respective requests for consultations, the United States and Japan qualify the licences
required by Argentina as "non-automatic licences"; the United States and Japan refer only to the Certificados
de Importación (CIs), and not to the Licencias Automáticas Previas de Importación (LAPI) and Certificados de
Libre Circulación (CLCs) mentioned by the European Union. See United States' Request for Consultations, p. 1,
para. 3; Japan's Request for Consultations, Argentina – Import Measures, p. 1, para. 3.
45 In its request for consultations, the United States uses slightly different language when defining the
last two commitments allegedly required by Argentina: "to refrain from transferring revenue or other funds
abroad and/or to control the price of imported goods". See United States' Request for Consultations, p. 1,
para. 4.
46 In their respective requests for consultations, the United States and Japan refer only to the issuance
of CIs and to the approval of DJAIs. See United States' Request for Consultations, p. 1, para. 5; Japan's
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advancing the Argentinean Government's stated policies of re-industrialization, import
substitution and elimination of trade balance deficits.47
The legal measures through which Argentina imposes these restrictions 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.48
…
3.19. In other words, the three requests for consultations identify the same three broad
measures:
1. The alleged imposition by Argentina of a requirement to present for approval an Advance
Sworn Import Declaration ( Declaración Jurada Anticipada de Importación , DJAI) for the
importation of goods (paragraph 2 in each of the three requests for consultations);

2. The alleged imposition by Argentina of other licences, such as in the form of Import
Certficates (Certificados de Importación , CIs) (paragraph 3 in each of the three requests
for consultations); and,

3. The alleged imposition by Argentina on impo rters of the requirement to undertake certain
commitments including, inter alia, to: (i) limit their imports; (ii) balance their imports with
exports; (iii) make or increase their investments in production facilities in Argentina;
(iv) increase the local content of the products they manufacture in Argentina; (v) refrain
from transferring benefits abroad; and/or, (vi) control the prices of imported goods
(paragraph 4 in each of the three requests for consultations).

3.20. Accordingly, the scope of the requests fo r consultations covers "certain commitments" that
Argentina allegedly requires importers to undertake. In the Panel's view, the third measure
identified in each of the requests for consultations corresponds to the measures identified by the
complainants under the heading "Restrictive Trade Related Requirements" in their respective panel
requests. All three complainants identify the RTRRs in their respective panel requests as follows:
Separately and/or in combination with the above measures described in Sections I and
II [the DJAI requirement and the CIs requirement, respectively] 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 ...
To satisfy these requirements, economic operators normally either submit a statement
or conclude an agreement with Argentina setting out the actions they will take.
Argentina enforces these requirements by withholding permission to import, inter alia,
by withholding the issuance of DJAI or CI approvals.
49
3.21. The complainants' panel requests thus enumerate "certain actions" that Argentina allegedly
requires economic operators to undertake. Comparing the relevant language used in each
document, there is a close identity between th e RTRRs identified in the complainants' panel

47 In its request for consultations, the United States refers to "Argentina's stated policies", instead of
"the Argentinean Government's". See United States' Request for Consultations, Argentina – Import Measures,
p. 2, para. 6.
48 In its request for consultations, the United States refers to "[t]he legal instruments through which
Argentina imposes these measures" (emphasis added). See United States' Request for Consultations, p. 2,
para. 7. In turn, Japan refers to "[t]he legal instruments through which Argentina imposes these restrictions"
(emphasis added). See Japan's Request for Consultations, p. 2, para. 7.
49 European Union's Panel Request, p. 3; United States' Panel Request, p. 4; Japan's Panel Request,
pp. 3-4.
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requests and the third measure identified in the complainants' requests for consultations. Both
measures are similarly described, both in terms of the nature of the measure and in terms of the
scope of the requirements allegedly imposed by Argentina.
3.22. In terms of the nature of the measure, both in their requests for consultations and in their
panel requests, the complainants assert that Argentina requires economic operators to undertake
certain commitments as a condition to be allowed to import goods into Argentina. In their requests
for consultations, the complainants refer to "importers of goods" whereas, in the panel requests,
they refer to "economic operators". In both se ts of documents, however, the target of the
measures seems to be similar, as the panel re quests refer to economic operators that are
requesting "permission to import". In their panel requests, the complainants add that these
commitments may be imposed on economic operator s by Argentina either by having them submit
a statement or by having them conclude an agreement with the Argentine Government setting
forth the actions the economic operators will take.
3.23. In terms of the scope of the requirements, both in their requests for consultations and in
their panel requests, the complainants identify similar commitments allegedly imposed by
Argentina on economic operators, namely: (i) to balance the value of imports with exports, which
may be done by exporting a certain value of goods from Argentina related to the value of imports;
(ii) to limit the volume or the price of their imports; (iii) to refrain from repatriating profits from
Argentina to another country, described in the requests for consultations as not to transfer
benefits abroad; (iv) to make ne w investments or increase their current investments in Argentina
(including in production facilities), described in the requests for consultations as to make or
increase their investments in production facilities in Argentina; and (v) to incorporate local content
into domestically produced goods, described in the requests for consultations as to increase the
local content of the products manufactured in Argentina.
3.24. Accordingly, the RTRRs were identified by the complainants as a measure at issue, both in
their respective requests for consultations as well as in their panel requests. The differences in
language used by the complainants when describing these measures in their requests for
consultations, as compared to their panel requests, are minor and do not expand the scope of the
dispute or change its essence. Indeed, as noted by the Appellate Body in Mexico – Anti-Dumping
Measures on Rice, consultations may lead to the reformulation of a complaint, since a complaining
party may learn of additional information or get a better understanding of the operation of a
challenged measure.
50
3.25. Argentina also argues that the reference to "these measures" in the sixth paragraph of each
of the requests for consultations can only be understood to refer to the first two measures (the CIs
and the DJAIs) and not to the RTRRs. 51 As noted above, in the requests for consultations filed
respectively by the European Union, the United States and Japan, the sixth paragraph reads:
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 appear to be aimed at
advancing the Argentinean Government's stated policies of re-industrialization, import
substitution and elimination of trade balance deficits. (emphasis added)
52
3.26. The complainants include the sentence "[ t]hese measures restrict imports of goods and
discriminate between imported and domestic goods" in the sixth paragraph of the requests for
consultations, immediately following the description of the three measures at issue. This sentence
also follows the complainants' allegation that the issuance of import licences (such as the CIs) and
the approval of DJAIs is being delayed or refuse d by the Argentine authorities on non-transparent
grounds and that the Argentine authorities make th e issuance of import licences and the approval
of DJAIs conditional upon the importers' compliance with the RTRRs. In the Panel's view, it is clear
that the reference to "these measures" in the sixth paragraph of the requests for consultations

50 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.
51 Argentina's first written submission, para. 127 (referring to the United States' Request for
Consultations, Argentina – Import Measures, p. 2, para. 6; European Union's Request for Consultations, p. 2,
52 In its request for consultations, the United States refers to "Argentina's stated policies", instead of
"the Argentinean Government's stated policies". See United States' Request for Consultations, p. 2, para. 6.
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refers to the three measures at issue previously identified (the requirement to present for approval
a DJAI, the imposition of other licences such as in the form of the CIS, and the RTRRs).
Argentina's assertion that the reference can only be understood to refer to the CIs and the DJAIs,
and not to the RTRRs, is not supported by the text of the requests for consultations.
3.27. The previous conclusion is not affected by Argentina's argument that the expression "these
measures" is used again in the seventh paragraph of the requests for consultations. (Paragraph 7
refers to the legal instruments through which Argentina allegedly imposes the challenged
measures.) First, the expression "these measures" is used as quoted by Argentina only in the
request for consultations by the United States. In contrast, the requests for consultations by the
European Union and Japan use instead the expression "these restrictions".
53 Second, even if all
complainants had used the expression "these measures" in the seventh paragraph of their
respective requests for consultations, this would not change the Panel's conclusion that the
expression refers to all three measures at issue, given the structure of the document as described
above. Moreover, the language in the seventh paragraph is not exhaustive (the legal instruments
include, but are not limited to, the legal instruments listed in the Annexes) and, as clarified further
in the panel requests, the complainants' argument is that the RTRRs "are not stipulated in any
published law or regulation".
54
3.28. In conclusion, the complainants' requests for consultations explicitly identify the
requirements that the complainants subsequently described in their panel requests as the RTRRs
as a measure at issue in the present dispute. The manner in which the RTRRs were described by
the complainants in their respective requests for consultations was sufficient to put the respondent
on notice that these alleged requirements were part of the measures at issue for the purpose of
the consultations. The small differences in language used in describing the RTRRs in the requests
for consultations, as compared with the respective panel requests, are insignificant and do not
expand the scope nor change the essence of the dispute.
3.3 Whether consideration of the RTRRs as a single overarching measure is outside the
Panel's terms of reference
3.29. As noted, Argentina also argues that the European Union's panel request has raised claims
against the RTRRs "viewed as separate measures", and also "as an overarching measure aiming at
eliminating trade balance deficits and/or substituting imports by domestic products".
55 Argentina
asserts that the three complainants raised claims in their panel requests against the RTRRs, both
as a single "unwritten global measure", as well as in their application in specific cases. 56 Argentina
argues that a single "unwritten overarching measure" is outside the Panel's mandate because
there is no reference to it in any of the complainants' requests for consultations.
57 Argentina's
argument raises the question of whether the fact that none of the complainants referred to the
RTRRs as a single "overarching measure" in their respective requests for consultations entails a
conclusion that the consideration of the RTRRs in such a manner would be outside the Panel's
terms of reference.
3.30. Argentina's argument does not refer to the description of the RTRRs as measures, but
rather to the manner in which the complainants may frame their claims against the RTRRs. The
Panel has already concluded that the RTRRs were explicitly identified as a measure at issue in the
complainants' requests for consultations. In their panel requests the complainants stated that, in
their view, the RTRRs are inconsistent with cert ain provisions of the WTO agreements, whether
analysed separately or together with the DJAI requirement and the CIs requirement. Argentina
notes that the complainants also stated in their panel requests that the RTRRs are inconsistent

53 Argentina quotes the seventh paragraph of the requests for consultations as reading the "legal
instruments through which Argentina maintains these measures include, but are not limited to, the legal
instruments listed in the Annexes …" That quotation is correct only for the United States' request for
consultations. The request for consultations by the European Union and the request for consultations by Japan
read instead the "legal [measures/instruments] through which Argentina imposes these restrictions include,
but are not limited to, the legal instruments listed in the Annexes …"
54 European Union's Panel Request, p. 3; United States' Panel Request, p. 4; Japan's Panel Request,
p. 4.
55 Argentina's first written submission, para. 135.
56 Ibid. paras. 135-136.
57 Ibid.
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with provisions of the WTO agreements, whether analysed in their application in specific cases, as
well as when considered as a single measure.
3.31. The Panel recalled above the Appellate Body's statement in Mexico – Anti-Dumping
Measures on Rice that consultations may lead to the reformulation of a complaint, since a
complaining party may learn of additional information or get a better understanding of the
operation of a challenged measure. 58 As expressed by the Appellate Body in that case, "[t]he
claims set out in a panel request may thus be expected to be shaped by, and thereby constitute a
natural evolution of, the consultation process".59
3.32. In their respective requests for consultations, with respect to the legal basis for their
complaints, the complainants stated that "Argentina's measures appear to be inconsistent with
Argentina's obligations under [certain] provisions of the covered agreements", including provisions
of the GATT 1994, of the TRIMs Agreement, of the Import Licensing Agreement, and of the
Agreement on Safeguards. The complainants also referred to the RTRRs in combination with the
other requirements, arguing that Argentina often makes the issuance of import licences (such as
the CIs) and the approval of DJAIs conditional upon compliance with the RTRRs.
3.33. Accordingly, the characterization of the RTRRs 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 as set out in the requests for consultations. There is nothing in this
reformulation that per se expands the scope or changes the essence of the dispute.
3.4 Whether consideration of the RTRRs "as applied" is outside the Panel's terms of
reference
3.34. Finally, Argentina also argues that, although all three complainants raised claims against the
RTRRs "as applied", only the European Union's panel request identifies the specific RTRRs that are
the object of those claims.
60 In Argentina's view, the panel requests filed by the United States and
Japan do not "identify any measures that are the subject of their … claim that 'any application' of
'the requirements' is inconsistent with the listed provisions of the covered agreements". 61
Argentina also asserts that the European Union should have identified in its request for
consultations at least some of the specific instances of application of the RTRRs that are the object
of its claims. 62 Argentina argues that claims with respect to measures that have neither been
identified in a complainant's request for consulta tions, nor in the panel request, are outside the
panel's terms of reference.63 In other words, Argentina submits that the complainants' "as applied"
claims cannot be considered by the Panel because none of the complainants identified in their
requests for consultations the specific instances in which the RTRRs were allegedly applied by the
Argentine Government, and nor did the United States and Japan in their respective panel requests.
3.35. It should be noted initially that the complainants' claims concerning the RTRRs are directed
against an unwritten measure. The Appellate Body has observed that, "[w]hen a challenge is
brought against an unwritten measure, the very existence and the precise contours of the alleged
measure may be uncertain."
64 The Appellate Body has added that, in those cases, complaining
parties should be expected "to identify such measures in their panel requests as clearly as
possible" and that complaining parties should "state unambiguously the legal basis for the
allegation that those measures are not consistent with particular provisions of the covered
agreements". In other words, panel requests "should give respondents and third parties sufficient
notice of the specific measures that the complainant intends to challenge in WTO dispute
settlement proceedings."
65

58 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 138.
59 Ibid.
60 Argentina's first written submission, paras. 129-134 and 138.
61 Ibid. para. 134.
62 Argentina's first written submission, para. 133.
63 Ibid. para. 134.
64 Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 792. (emphasis
original)
65 Ibid.
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3.36. It is also worth recalling the difference between "as such" and "as applied" claims. An "as
such" claim is aimed at challenging measures "on their face" or as they operate in a general and
prospective manner, without regard to their application in a specific instance, or at times even
without regard to whether certain measures are yet in effect.
66 As noted by the Appellate Body, in
US – Oil Country Tubular Goods Sunset Reviews , in an "as such" claim, the complainant asserts
"that a Member's conduct – not only in a particular instance that has occurred, but in future
situations as well – will necessarily be inconsistent with that Member's WTO obligations".
67 In
contrast, "as applied" claims are aimed at challenging particular acts of application of specific
measures.
3.37. Argentina alleges that the "as applied" claims raised by the United States and Japan
regarding the RTRRs were not covered by their requests for consultations nor by their panel
requests. Argentina also asserts that the European Union did not identify in its request for
consultations the specific instances of application of the RTRRs that are the object of its claims.
Accordingly, Argentina argues that any claims against the RTRRs "as applied" are outside the
Panel's terms of reference. The Panel has alread y noted that, in their respective requests for
consultations, when referring to the requirements that constitute the so-called RTRRs, the
complainants identified "certain commitments" allegedly required by Argentina from the importers
of goods. The remaining question that arises from Argentina's argument is whether the
complainants were additionally required to specify, in their requests for consultations and in their
panel requests, the specific instances that constitute their claim against the RTRRs as applied.
3.38. In its response to Argentina's request for a preliminary ruling, the European Union denies
that it is advancing separate claims against the RTRRs "as such" and "as applied". The European
Union argues that it is challenging the RTRRs as an overarching measure and advancing an
alternative claim, in the event the first claim is unsuccessful, against specific cases in which the
Argentine government has allegedly imposed RTRR requirements on individual economic
operators.
68
3.39. In its own response to Argentina's request for a preliminary ruling, Japan argues that it:
(i) identified the RTRRs in its request for consultations as a measure at issue; and,
(ii) subsequently added in its panel request that its challenge against the RTRRs was with respect
both to the requirements as well as "any application thereof" (i.e. both "as such" and "as
applied"). In Japan's view, there is no requ irement under the DSU that a complainant must
identify the specific instances of a measure application in its panel request, and until the stage of
the parties' submissions and argumentation.
69
3.40. The United States did not comment on this argument, with respect to claims against the
RTRRs "as applied", in its response to Argentina's request for a preliminary ruling.
3.41. The Panel notes that, in the complainants' fi rst submissions, only Japan uses the expression
"as applied". Japan argues that the RTRRs are inconsistent with certain WTO obligations "both as
such and as applied", but this seems to be part of a broad argument against the RTRRs and not a
separate articulation of claims against the RTRRs "as applied". 70 As noted above, the European
Union denies that it is advancing separate claims against the RTRRs "as such" and "as applied".
Finally, the United States does not use the expressi on "as applied" in its first submission, nor does
it articulate separate claims against the RTRRs "as applied".
3.42. In the light of the above, the Panel does no t consider it necessary or appropriate to issue a
ruling at this time with respect to this last argument raised by Argentina. The Panel will consider
the manner in which the complainants choose to articulate their respective challenges against
particular acts of application of the RTRRs duri ng the course of the proceedings. The Panel will
consider this matter further in the course of the proceedings as appropriate.

66 Appellate Body Report, US – 1916 Act, para. 88.
67 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 172.
68 European Union's response to Argentina's request for a preliminary ruling, paras. 46-49.
69 Japan's response to Argentina's request for a preliminary ruling, paras. 26-28.
70 See Japan's first written submission, paras. 185, 198 and 218.
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3.5 Timing of the preliminary ruling
3.43. As noted above, Argentina asked the Panel to issue the preliminary ruling "preferably after
the First Substantive Meeting of the Panel with the Parties".71 Pending the resolution of its request,
Argentina chose not to address in its first written submission the complainants' arguments
concerning these measures.72 In contrast, the European Union and Japan asked the Panel to rule
on Argentina's request as soon as possible, and before the date of the first substantive meeting
with the parties.
73
3.44. In the Panel's view, an early preliminary ruli ng is appropriate in the interest of due process,
and especially in order to allow parties and third parties to engage in a substantive discussion of
the claims raised by the complainants with respect to the RTRRs.
4 PRELIMINARY RULING OF THE PANEL
4.1. In light of the above considerations, the Panel finds that:
a. The so-called "Restrictive Trade Related Requirements" (RTRRs) were identified by the
complainants as a measure at issue in their respective requests for consultations;
therefore, the inclusion of the RTRRs in their panel requests is not inappropriate and
these measures are within the Panel's terms of reference; and,
b. The characterization of the RTRRs as a single "overarching measure" in the
complainants' panel requests does not expand the scope or change the essence of the
dispute.
4.2. With respect to Argentina's argument that, in the light of their requests for consultations and
panel requests, the complainants' "as applied" claims against the RTRRs are outside the Panel's
terms of reference, the Panel declines to provide a preliminary ruling at this time. The Panel will
address this issue in its report, as appropriate, in the light of the parties' arguments in the course
of the proceedings.
4.3. This preliminary ruling will become an in tegral part of the Panel's report, subject to any
modifications or elaboration of the reasoning, either in a subsequent ruling or in the Panel's report,
in the light of comments received from the parties in the course of the proceedings.

71 Ibid. para. 146.
72 Argentina's first written submission, paras. 15 and 146.
73 European Union's first written submission, para.56; Japan's first written submission, paras. 5 and 34.
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ANNEX D-2
PRELIMINARY RULING BY THE PANEL
20 November 2013

1 PROCEDURAL BACKGROUND
1.1. In its first written submission dated 7 Au gust 2013, Argentina requested that the Panel issue
a preliminary ruling that the so-called "Restrictive Trade Related Requirements" (RTRRs) identified
in the panel requests submitted by the Europe an Union, the United States and Japan (the
complainants)1 fall outside the Panel's terms of reference. 2 Argentina asked the Panel to issue the
preliminary ruling "preferably after the First Substantive Meeting of the Panel with the Parties, in a
manner that effectively preserves Argentina's due process rights".3
1.2. Argentina's request raised three main issues with respect to the complainants' claims relating
to the alleged RTRRs, namely: (i) whether the RTRRs were identified by the complainants as a
measure at issue in their respective requests for consultations; (ii) whether the reference to the
RTRRs as a broad unwritten "overarching measure" in the complainants' panel requests "expanded
the scope" and "changed the essence" of the dispute; and, (iii) whether the complainants
identified, either in their respective requests for consultations or in their panel requests, the
measures that are subject to their claims against the RTRRs "as applied".
1.3. Argentina declared that, in light of its re quest for a preliminary ruling on these issues, it
would not address in its first written submission the complainants' arguments with respect to the
alleged RTRRs.
4
1.4. On 9 August 2013, the Panel invited the third parties to comment on Argentina's request for
a preliminary ruling in their written submissions, due on 28 August 2013. In the same letter, the
Panel invited the complainants to respond in writing to Argentina's request by 10 September 2013.
In response to the Panel's invitation, two third parties commented on Argentina's request for a
preliminary ruling in their written submissions: Australia and Chinese Taipei. As requested by the
Panel, on 10 September 2013 the complainants submitted their respective responses to
Argentina's request.
1.5. On 16 September 2013, the Panel issued a preliminary ruling in response to the request filed
by Argentina in its first written submission, concluding that:
a. The so-called RTRRs were identified by the complainants as a measure at issue in their
respective requests for consultations; therefore, the inclusion of the alleged RTRRs in the
complainants' panel requests is not inappropriate and these measures are within the
Panel's terms of reference; and,
b. The characterization of the alleged RTRRs as a single "overarching measure" in the
complainants' panel requests does not expand the scope or change the essence of the
dispute.
5

1 Request for the Establishment of a Panel by the European Union, Argentina – Import Measures,
WT/DS438/11 (7 December 2012); Request for the Establishment of a Panel by the United States, Argentina –
Import Measures, WT/DS444/10 (7 December 2012); Request for the Establishment of a Panel by Japan,
Argentina – Import Measures, WT/DS445/10 (7 December 2012). In all successive footnotes, these documents
will be referred to as European Union's Panel Request, United States' Panel Request and Japan's Panel Request,
respectively.
2 Argentina's first written submission, paras. 15, 112-146 and 360.
3 Ibid. para. 146.
4 Argentina's first written submission, paras. 146-147.
5 Preliminary Ruling by the Panel, Argentina – Import Measures (16 September 2013).
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1.6. In its 16 September preliminary ruling, the Panel indicated that it would not issue a ruling
with respect to the third issue raised by Argentina, namely the argument that, in the light of their
requests for consultations and panel requests, the complainants' claims against the alleged RTRRs
"as applied" are outside the Panel's terms of reference. The Panel observed that it was not
necessary or appropriate to issue a ruling at that time. The Panel noted that it would consider the
matter further in the course of the proceedings, as appropriate, after having heard the parties'
arguments.
6
1.7. The Panel invited the parties to express their views regarding the circulation of the
preliminary ruling to the Members. On 17 September 2013, the complainants submitted a joint
communication to the Panel expressing no objection to the circulation of the preliminary ruling,
with the understanding that circulation would occur only if none of the parties objected and if
parties were given an opportunity to comment on the preliminary ruling at the time of the interim
review.
7 On 19 September 2013, Argentina submitted a communication to the Panel expressing its
disappointment that the preliminary ruling had not been issued after the first substantive meeting
with the parties as requested by Argentina. Argentina also indicated that "there is no reason to
justify the circulation of this preliminary ruling among all the Members of the WTO" and therefore
it did not agree with such circulation.8
1.8. In its oral statement at the Panel's first substantive meeting with the parties on
24 September 2013, Argentina again expressed its disa ppointment at what it considered to be the
Panel's "hasty decision to issue a preliminary ruling without first providing [Argentina] with an
opportunity to respond to the complainants' submissions". Argentina noted that it "had a
legitimate expectation that it would have more than a single opportunity to express its views with
respect to its preliminary objection".
9 Argentina also expressed its concern about the Panel's
decision to defer a ruling on some of the jurisdictional objections raised by Argentina; it requested
the Panel to promptly resolve the outstanding issues concerning the Panel's terms of reference.10
1.9. On the occasion of its first substantive meeting with the parties, the Panel posed questions to
the European Union and Japan seeking clarification on their claims regarding the alleged RTRRs "as
applied". The European Union and Japan provided written responses to these questions on
11 October 2013.11
1.10. The Panel also posed questions to Argentina regarding the possible circulation of the
preliminary ruling, as well as the procedures followed by previous panels dealing with requests for
preliminary rulings. In its written responses to these questions, provided to the Panel on
11 October 2013, Argentina reiterated its view that it would be premature to circulate the Panel's
preliminary ruling to Members in view of the fact that the Panel had not ruled yet on two of the
arguments raised by Argentina related to the complainants' claims regarding specific instances of
application of the alleged RTRRs.
12
2 MAIN ARGUMENTS OF THE PARTIES
2.1.1 Argentina's preliminary ruling request
2.1. Argentina asserts that, although all three complainants have raised claims against the alleged
RTRRs "as applied", only the European Union's panel request identifies the specific RTRRs that are
the object of those claims.
13 Argentina argues moreover that, in its request for consultations, the
European Union failed to identify at least some of the specific instances of application of the RTRRs
that are the object of its claims. In Argentina's view, the inclusion by the European Union in its

6 Ibid.
7 Complainants' joint e-mail communication to the Panel, 17 September 2013.
8 Argentina's e-mail communication to the Panel, 19 September 2013.
9 Argentina's opening statement at the first meeting of the Panel, para. 31.
10 Ibid. para. 32.
11 European Union's response to Panel question No. 1; Japan's response to Panel question No. 2.
12 Argentina's response to Panel question No. 4.
13 Argentina's first written submission, paras. 129-134 and 138.
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panel request of a list of instances of application of RTRRs is an impermissible departure from its
request for consultations.14
2.2. Argentina argues further that the panel requ ests filed by the United States and by Japan do
not "identify any instances that are the subject of their … claims in which 'any application' of 'the
requirements' is inconsistent with the listed provisions of the covered agreements". 15 Argentina
submits that any claims with respect to measures that have neither been identified in a
complainant's request for consultations nor in the panel request are outside the panel's terms of
reference.
16
2.3. On the occasion of the Panel's first substantive meeting with the parties, Argentina requested
the Panel to urgently resolve what it considered to be two outstanding issues concerning the
Panel's terms of reference.
17
2.4. First, Argentina requested that the Panel find that, since "neither Japan nor the United States
identified any measures subject to any 'as applied' claims in their consultations requests … any
such measures and claims are outside of [the Panel's] terms of reference".
18
2.5. Second, Argentina noted the European Union's statement that it is not challenging separate
instances of application of the overarching RTRRs, but rather is challenging as "separate
measures" 23 specific instances where the Argentine Government has, according to the
European Union, imposed RTRRs on individual economic operators. Argentina requests that,
accordingly, the Panel find that the addition of these 23 new measures, which were not identified
in the European Union's request for consultations, has "impermissibly expanded the scope of the
dispute".
19
2.1.2 Response of the complainants to Argentina's request for a preliminary ruling
2.6. The European Union explains that it is not advancing separate claims against the alleged
RTRRs "as such" and "as applied". The European Union argues that it is challenging the RTRRs as
an overarching measure. In the event this claim is unsuccessful, the European Union is challenging
in the alternative, as "separate measures" the specific instances listed in Annex III of its panel
request where the Argentine Government has, according to the European Union, imposed RTRRs
on individual economic operators. The European Union states that, in sum, it is not asking the
Panel to issue 23 separate rulings on claims against the alleged RTRRs "as applied", but instead,
should the Panel not conclude that the RTRRs constitute an overarching measure that is
inconsistent with Argentina's WTO obligations, it is asking the Panel to make findings with respect
to each of the 23 measures it identified in its panel request and its first written submission, "where
Argentina has imposed [RTRRs] on specific companies at a particular moment in time".
20
2.7. Japan clarifies that it is asking the Panel to issue separate rulings on claims against the
alleged RTRRs "as such" and "as applied". Japan argues that the specific measures that are the
object of its "as applied" claims are the same that Japan challenges "as such", i.e. the RTRRs on
their face, each of the individual instances of application, as well as broader overall acts of
application in a collective sense. In Japan's view , to the extent the RTRRs are inconsistent "as
such" with certain provisions of the WTO agreements invoked by Japan, any application of the

14 Ibid. para. 133.
15 Ibid. para. 134.
16 Ibid.
17 Argentina's opening statement at the first meeting of the Panel, para. 32. See also Argentina's
response to Panel question No. 4.
18 Argentina's opening statement at the first meeting of the Panel, para. 33. See also Argentina's
response to Panel question No. 4; Argentina's second written submission, paras. 64-70. In its opening
statement at the first meeting of the Panel, its response to Panel question No. 4 and its second written
submission, Argentina referred only to the complainants' requests for consultations; however, Argentina's
request for a preliminary ruling also asserts that the United States and Japan failed to identify the measures
subject to their claims against the RTRRs "as applied" in their respective panel requests.
19 Argentina's opening statement at the first meeting of the Panel, paras. 34-35. See also Argentina's
response to Panel question No. 4; Argentina's second written submission, paras. 57-63.
20 European Union's response to Argentina's request for a preliminary ruling, paras. 38-49;
European Union's opening statement at the first meeting of the Panel, paras. 35 and 42; European Union's
response to Panel question No. 1.
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RTRRs ("as applied") would in itself also necessarily be inconsistent with the same provisions.
Japan argues that it is important that the Panel's findings not be limited to particular instances of
application, and that they "clearly and categorically express the WTO-inconsistency of any
application of the measure".
21 In this regard, Japan argues that it: (i) identified the alleged RTRRs
in its request for consultations as a measure at issue; and, (ii) subsequently added in its panel
request that its challenge against the RTRRs "was with respect both to 'these requirements' as well
as 'any application thereof' – i.e., both as such and as applied ".
22 In Japan's view, there is no
requirement under the DSU that a complainant identify in its panel request the specific instances
of application of a measure. Japan submits that it had no obligation to specify in detail the
instances of application of the RTRRs until the stage of its submissions and argumentation.
23
3 PROCEDURAL CONSIDERATIONS
3.1 Is there a need for a preliminary ruling?
3.1. The Panel's preliminary ruling of 16 September 2013 left for later resolution two issues
concerning the Panel's terms of reference raised by Argentina in its first written submission. The
first is whether the alleged 23 specific instances of application of alleged RTRRs, identified by the
European Union in its first written submission, can be considered to be 23 separate measures at
issue that fall within the Panel's terms of reference. The second is whether Japan has identified
specific measures that would provide the basis for its request for separate findings from the Panel
regarding the RTRRs "as applied".
3.2. The issues raised by Argentina concern the Panel's jurisdiction over certain claims advanced
by the complainants. A resolution of these issues is essential before the Panel can address the
substance of the complainants' allegations. This is not to say that any of these issues would
necessarily have to be resolved by the Panel through a preliminary ruling and before the time of
the final report.
24 Indeed, the resolution of the issues raised by Argentina may be contingent on
how the Panel decides certain of the claims brought by the complainants, which findings would
appear only in the final report.
3.3. First, the European Union's request for separate findings concerning the 23 specific instances
of alleged application of RTRRs has been advanced only in the alternative, such that it would only
be relevant if the Panel were not to find that the RTRRs as a broad "overarching" measure are
inconsistent with either Article XI:1 or Article III:4 of the GATT 1994. In other words, if the Panel
were to find that the alleged RTRRs, "each on its own or any combination thereof" are inconsistent
with either Article XI:1 or Article III:4 of the GA TT 1994, it would not be necessary or appropriate
for the Panel to examine the European Union's alternative claims.
3.4. Second, Japan asked the Panel to issue separate rulings on claims against the alleged RTRRs
"as such" and "as applied". Prior WTO panels and the Appellate Body, however, have noted that, in
the event of findings of violation in respect of a measure "as such", additional findings of violation
regarding the measure "as applied" may be unnecessary. As noted by the Appellate Body:
By definition, an "as such" claim challenges laws, regulations, or other instruments of
a Member that have general and prospective application, asserting that a Member's
conduct—not only in a particular instance that has occurred, but in future situations as
well—will necessarily be inconsistent with that Member's WTO obligations … The
implications of ["as such"] challenges are obviously more far-reaching than "as
applied" claims.
25

21 Japan's response to Panel question No. 2. (emphasis original) See also, Japan's second written
submission, paras. 7, 12-20.
22 Japan's response to Argentina's request for a preliminary ruling, para. 27.
23 Ibid. paras. 26-28.
24 Some recent panels have addressed challenges related to whether certain claims raised by the
complainants were part of the panels' terms of reference only in their final reports. See, for example, Panel
Report, Colombia – Ports of Entry, para. 7.18; Panel Report, US – Orange Juice (Brazil), paras. 7.16-7.25 and
7.38-7.49.
25 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 172.
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3.5. In the present case, Argentina has not challenged whether Japan's claims against the alleged
RTRRs "as such" are covered by the Panel's terms of reference; Argentina's arguments refer only
to the claims against the RTRRs "as applied".
3.6. Similarly to the present dispute, in Colombia – Ports of Entry the respondent did not
challenge the consistency with Article 6.2 of the DSU of the complainant's claims "as such", but
only "as applied". The panel in that case noted that:
[It] is not obliged, as a threshold matter, to find on whether Panama's "as applied"
claims are part of its mandate. In the event of a finding of violation in respect of
Panama's "as such" claims … a finding of violation "as applied" would be unnecessary
since it stands to reason that each prospe ctive individual application of indicative
prices to import transactions would be based on WTO-inconsistent legislation. The fact
that a panel makes a finding that a measure "as such" is inconsistent with the covered
agreements also covers every instance of application of the same measure.
26, 27
3.7. Accordingly, the panel in Colombia – Ports of Entry decided that it would first address the
complainant's "as such" claims and that, only if those claims were rejected, it would then consider
whether the "as applied" claims complied with the requirements of Article 6.2 of the DSU. 28
Similarly, in the present case, the Panel could wait until the time of the final report in order to
verify whether the necessary conditions are met that would make it necessary to address
Argentina's arguments.
3.8. Nevertheless, in the circumstances of the present case there are reasons to decide these two
issues through a preliminary ruling and before the ti me of the final report. First, in the light of the
relevant documents (mainly the complainants' panel requests and requests for consultations), as
well as the subsequent clarifications made by the parties, the Panel has enough information to rule
at this stage on the issues raised by Argentina's request, so that it is unnecessary to wait until the
final report. Second, a decision will allow parties to focus, in the remaining stages of the
proceedings, on issues that have been determined to be part of the Panel's terms of reference.
3.2 Argentina's arguments regarding the procedure to be followed for the ruling
3.9. As noted above, Argentina has expressed its disappointment at what it considers to be the
Panel's "hasty decision to issue a preliminary ruling without first providing [Argentina] with an
opportunity to respond to the complainants' submissions". Argentina has also noted that it "had a
legitimate expectation that it would have more than a single opportunity to express its views with
respect to its preliminary objection". Argentina has asserted that "[m]ost -if not all- recent panels
have at … least provided the parties with an opportunity for responsive submissions before issuing
a formal ruling" and that "[i]n many instances, panels have adopted separate procedures … for the
purposes of adjudicating preliminary ruling requ ests, with multiple rounds of briefing, questions
from the panel, and the opportunity for oral hearing."
29
3.10. In response to a question from the Panel, Argentina cited seven cases in which panels
confronted with a request for a preliminary ruling provided multiple rounds for parties to express
their views before the adoption of the ruling. 30 Argentina also cited five cases in which panels
provided the opportunity for oral hearings with the parties to address their views before the
adoption of the preliminary ruling.
31

26 (footnote original) Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 172.
27 Panel Report, Colombia – Ports of Entry, para. 7.44.
28 Ibid.
29 Argentina's opening statement at the first meeting of the Panel, para. 31.
30 Argentina's response to Panel question No. 5. The cases cited by Argentina are the following: (i) US –
Countervailing and Anti-Dumping Measures (China), DS449; (ii) US – Countervailing Measures (China), DS437;
(iii) China – Electronic Payment Services, DS413; (iv) China – Raw Materials, DS394, DS395, DS398; (v) US –
Gambling, DS285; (vi) EC – Trademarks and Geographical Indications, DS174, DS290; and, (vii) India –
Autos, DS146, DS175.
31 Argentina's response to Panel question No. 5. The cases cited by Argentina are the following: (i) US –
Countervailing and Anti-Dumping Measures (China), DS449; (ii) China – Electronic Payment Services, DS413;
(iii) China – Raw Materials, DS394, DS395, DS398; (iv) Canada – Wheat Exports and Grain Imports, DS276;
and, (v) Turkey – Textiles, DS34.
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3.11. On this point, the European Union has rejected the assertion that Argentina had "legitimate
expectations" that it would have more than a single opportunity to express its views with respect
to its preliminary objection. The European Union has noted that, to its best knowledge, "in the vast
majority of cases, a party requests a panel to issue preliminary rulings, detailing the motives
supporting its request … [Subsequently], panels afford the opportunity to the other party to make
comments on the request. Panels may also pose questions on particular issues if need be or seek
further clarification as appropriate." In the European Union's view, "there is no established practice
of systematically requesting the party submitting a request for a preliminary ruling to further
express its views about its preliminary objection. Those views were already expressed in the
request for a preliminary ruling." The European Union adds that "the continuous exchange of views
on preliminary ruling issues" is not a common practice, but is instead the exception. "And it is an
exception that may apply in a completely different set of facts (e.g., where the request is made
before the panel starts its work, and not late in the proceedings, such as in the present case, i.e.,
together with Argentina's first written submission)."
32
3.12. The United States asserts that it is not aware of the basis for Argentina's "legitimate
expectation" for multiple rounds of briefings, questions from the Panel, and an opportunity for an
oral hearing. In the United States' view, "[i]n certain cases, particularly where a party requests a
preliminary ruling at an early stage in the dispute, the Panel may invite separate comments, ask
questions as necessary, and even allow for rebu ttals. However, there are many instances where
that has not been the case and the panel's ruling was based on the initial request and response."
The United States cites eleven such cases. The United States further considers that, because
Argentina did not request "separate procedures", there is no basis for it to complain about the lack
of such "separate procedures". The United States finally asserts that nothing in the Panel's working
procedures prevents Argentina from expressing its views with respect to its preliminary objections
later, including through its oral statement at the Panel meeting or through comments on the
Panel's interim report.
33
3.13. Japan notes that, although the DSU does not explicitly regulate preliminary ruling requests
nor the procedures to deal with such requests , Paragraph 6 of the Working Procedures for the
current dispute explicitly contemplates that preliminary ruling requests will be fully briefed by the
time of the first written submissions, except "upon a showing of good cause". Japan notes that
Argentina has not objected to this rule, nor has it argued that there is "good cause" to depart from
it. In Japan's view, merely having an "expectation", even one that Argentina considers to be
"legitimate", is not sufficient to show good cause. Japan adds that, "contrary to what Argentina
appears to posit, nothing in the DSU requires this Panel to allow for multiple rounds of briefing
before the adoption of the ruling to address sp ecific issues presented in the context of their
particular disputes". Japan also asserts that at least five panels since 2008 have allowed "only a
single round of briefing before they issued a preliminary ruling".
34
3.3 Analysis of Argentina's arguments regarding the procedure to be followed
3.14. The DSU does not contain rules on preliminary rulings nor on the procedures that panels
s h o u l d f o l l o w w h e n d e a l i n g w i t h t h i s t y p e o f r e q u e s t s f r o m a n y o f t h e p a r t i e s . T h e W o r k i n g
Procedures for the current dispute, adopted by the Panel on 14 June 2013, after having consulted
the parties, state in Paragraph 6 that:
A party shall submit any request for a preliminary ruling at the earliest possible
opportunity and in any event no later than in its first written submission to the Panel.
If any of the complainants requests such a ruling, the respondent shall submit its
response to the request in its first written submission. If the respondent requests such
a ruling, the complainants shall submit their responses to the request prior to the first
substantive meeting of the Panel, at a time to be determined by the Panel in light of
the request. Exceptions to this procedur e shall be granted by the Panel upon a
showing of good cause.
3.15. In other words, the Panel's Working Procedures do not contemplate more than a single
opportunity for parties to express their respective views on any request for a preliminary ruling;

32 European Union's response to Panel question No. 5.
33 United States' response to Panel question No. 5.
34 Japan's response to Panel question No. 5.
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they do not contemplate multiple rounds of briefings, questions from the panel, nor the
opportunity for oral hearings.
3.16. Nothing would have prevented either the Panel or any of the parties to have proposed an
exception to the procedures contained in Paragraph 6. Depending on the circumstances of each
case, a panel may, in the course of the procedure to decide on a request for a preliminary ruling,
accord multiple rounds of briefings, pose question s to the parties, or allow for the opportunity of
an oral hearing. Any of those steps is not an ac quired right for the parties, but is instead an
instrument for a panel to obtain the necessary information that will allow it to rule on the relevant
issues.
3.17. Moreover, there is no established practice for panels to grant multiple rounds of briefings
(i.e. more than one opportunity) to parties before issuing a preliminary ruling, or to grant the
opportunity for separate oral hearings to discuss preliminary ruling requests.
3.18. In at least 13 out of the 22 cases in which a preliminary ruling has been issued related to
jurisdictional questions concerning Articles 4.7 or 6.2 of the DSU, WTO panels have issued the
ruling after a single round of submissions from the parties. 35 This corresponds to more than half
the number of cases. Therefore it cannot be asserted that in most cases panels have offered
parties more than one opportunity to make submissions.
3.19. Likewise, panels have only rarely called for a separate hearing in order to hear the parties'
views before issuing a preliminary ruling.
36 In two recent cases 37, the respondents proposed that
the panel meet with the parties to consider a preliminary ruling request, but in both cases the
panel considered that such hearing was unnecessary.
38 In other words, only a few panels have
called for separate hearings in order to hear the parties' views before issuing a preliminary ruling.
3.20. In conclusion, there is no legal basis under the DSU, the Panel's Working Procedures, or the
practice of previous panels dealing with requests for preliminary rulings, that supports Argentina's
assertion that it had "a legitimate expectation that it would have more than a single opportunity to
express its views with respect to its preliminary objection" or that the Panel should have called for
a separate oral hearing.
3.21. In the present case, with respect to the fi rst two issues raised by Argentina's preliminary
ruling request
39, the Panel heard the arguments of Argentina, the views of the third parties and
the response by the complainants. After having heard those views, the Panel did not find it
necessary or convenient to delay the preliminary ruling by inviting further submissions from the
parties.

35 The 13 cases are: India – Agricultural Products, DS430; Canada – Feed-In Tariff Program, DS426; EU
– Footwear (China), DS405; US – Shrimp (Viet Nam), DS404; US – Poultry (China), DS392; US – COOL,
DS384, DS386; Colombia – Ports of Entry, DS366; US – Continued Zeroing, DS350; Japan – DRAMs (Korea),
DS336; US – Zeroing (Japan), DS322; US – Gambling, DS285; EC – Trademarks and Geographical Indications,
DS174, DS290; Turkey – Textiles, DS34. In particular, there is no indication in the reports of the panels in
either US – Gambling, DS285 or EC – Trademarks and Geographical Indications, DS174, DS290 (cited by
Argentina), that more than one round of submissions was accorded by those panels before issuing a
preliminary ruling. See, Panel Reports, US – Gambling, para. 1.7; EC – Trademarks and Geographical
Indications, paras. 2.2-2.5.
36 Special oral hearings on a request for a preliminary ruling took place in the proceedings on China –
Raw Materials, DS394, DS395, DS398; US – Continued Suspension, DS320; Canada – Wheat Exports and
Grain Imports, DS276; Turkey – Textiles, DS34. See, Preliminary Ruling by the Panel, China – Raw Materials,
Canada – Wheat Exports and Grain Imports, para. 1.8; Turkey – Textiles, para. 1.8. In two of the cases cited
by Argentina, no oral hearing took place before the panel issued its preliminary hearing. See, Preliminary
Ruling by the Panel, US – Countervailing and Anti-Dumping Measures (China), WT/DS449/4 (7 June 2013),
37 US – Countervailing Measures (China) and India – Agricultural Products.
38 Preliminary Ruling by the Panel, US – Countervailing Measures (China), WT/DS437/4 (21 February
2013) para. 1.4; Preliminary Ruling by the Panel, India – Agricultural Products, WT/DS430/5 (28 June 2013),
para. 1.5.
39 Namely whether the alleged RTRRs were properly identified by the complainants in their respective
requests for consultations and whether the characterization of the alleged RTRRs as a single "overarching"
measure in the complainants' panel requests improperly expanded the scope or changed the essence of the
dispute.
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3.22. In contrast, the Panel found it useful to seek further clarification from the parties regarding
the issues raised by Argentina's request with respect to the measures that are subject to the
complainants' claims against the alleged RTRRs "as applied". In addition to the first round of
submissions between the parties addressing Argentina's request for a preliminary ruling
(Argentina's submission of 7 August 2013, the th ird parties' comments submitted by Australia and
Chinese Taipei on 28 August and the complainan ts' responses of 10 September), the Panel has
now heard the arguments of the parties at the first substantive meeting of 24 to 26 September as
well as the responses to the questions posed by th e Panel after the meeting filed by the parties on
11 October.
3.23. The Panel is aware that objections regardin g the sufficiency of a panel request or a request
for consultations must be decided on the face of those documents and that any defects in these
documents cannot be "cured" in the subsequent submissions of the parties during the panel
proceedings. Nevertheless the Panel is also aw are that, in considering the sufficiency of the
documents that lie at the base of a panel's jurisdiction, and in particular the panel request,
submissions and statements made by the parties during the course of the panel proceedings may
be consulted in order to confirm the meaning of the words used in the panel request and as part of
the assessment of whether the ability of the respondent to defend itself was prejudiced.
40
4 PANEL'S ANALYSIS OF THE PENDING ISSUES RAISED BY ARGENTINA'S REQUEST
4.1 Arguments of the parties
4.1.1 Japan's claims against the alleged RTRRs "as applied"
4.1. As noted above, in its first written submission, Argentina alleged that the claims raised by the
United States and Japan regarding the alleged RTRRs "as applied" were not covered by their
respective panel requests. Argentina added that , although the European Union identified the
measures subject to its claims against the RTRRs "as applied" in its panel request, it failed to
identify these measures in its request for consultations. Accordingly, Argentina argues that any
claims against the RTRRs "as applied" are outside the Panel's terms of reference.
41
4.2. During the first substantive meeting, and again in response to the questions posed by the
Panel after the meeting, Argentina requested that the Panel find that, since neither Japan nor the
United States identified any measures subject to claims in their requests for consultations against
the alleged RTRRs "as applied", any such measures and claims are outside the Panel's terms of
reference.
42
4.3. In response, Japan argues that the specific measures that are the object of its "as applied"
claims are the same that Japan challenges "as such", i.e. the alleged RTRRs on their face, each of
the individual instances of application, as well as broader overall acts of application in a collective
sense.
43 I n t h i s r e g a r d , J a p a n a r g u e s t h a t i t : ( i ) i d e n t i f i e d t h e R T R R s i n i t s r e q u e s t f o r
consultations as a measure at issue; and, (ii) subsequently added in its panel request that its
challenge against the RTRRs "was with respect bo th to 'these requirements' as well as 'any
application thereof' – i.e., both as such and as applied".
44 In Japan's view, there is no requirement
under the DSU that a complainant identify in its panel request the specific instances of application
of a measure. Japan submits that it had no obligation to specify in detail the instances of
application of the RTRRs until the stage of its submissions and argumentation.
45

40 Appellate Body Report, US – Carbon Steel, para. 127. See also, Appellate Body Reports, Korea –
41 See paras. 2.1 and 2.2 above.
42 Argentina's opening statement at the first meeting of the Panel, para. 33; Argentina's response to
Panel question No. 4.
43 Japan's response to Panel question No. 2.
44 Japan's response to Argentina's request for a preliminary ruling, para. 27.
45 Ibid. paras. 26-28.
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4.1.2 The 23 measures described by the Euro pean Union in Section 4.2.4 of its first
written submission
4.4. In its first written submission, the European Union noted that it is challenging "as separate
measures certain specific instances where the Argentinean Government has applied one or more of
the RTR requirements described [in the same submission] to particular entities." The
European Union described 23 of those "specific instances" of application in its first submission. In
the European Union's view, those measures are inconsistent with Articles XI:1 and/or Article III:4
of the GATT 1994. The European Union noted that its claims against these measures are only
advanced in the alternative, in case that the Panel finds that the alleged RTRRs, each on its own or
any combination thereof, are not inconsistent with Articles XI:1 and/or III:4 of the GATT 1994 as
part of an overarching measure.
46
4.5. In response to a question posed by the Panel after the first substantive meeting, the
European Union clarified that its claims against the 23 specific instances of application do not
constitute a challenge against the alleged RTRRs "as applied", based on a distinction between
challenges against measures "as such" and ch allenges against measures "as applied". The
European Union noted that it is asking the Panel to issue an individual finding with respect to each
of the 23 specific instances of application described in the European Union's first written
submission. The European Union added that each of the 23 specific instances of application
described in its first written submission correspond to one of the 29 cases listed in Annex III of its
panel request, where Argentina has allegedly impo sed one or more RTRRs on individual economic
operators. In the European Union's view, if the Panel find that the RTRRs constitute an overarching
measure that is inconsistent with the GATT, this finding would be sufficient to cover the 23 specific
instances of application and the Panel would not need to examine the alternative claims regarding
those instances of application.
47
4.6. In its request for a preliminary ruling, Arge ntina argues that the European Union failed to
identify in its request for consultations the specific instances of application of the alleged RTRRs
that are the object of its claims. In Argentina's view, "the European Union's identification of
'separate measures in each of the instances listed in Annex III' is an evident departure from its
request from consultations, where no such Annex was included and no such measures were
identified." Argentina adds that, based on th e dates of the measures identified by the
European Union in Annex III of its panel request, "there does not appear to be any discernible
reason why the European Union could not have identified at least the majority of these measures
in its request for consultations."
48 Argentina concludes that claims with respect to measures that
were not identified in a complainant's request for consultations are outside the panel's terms of
reference.49
4.2 Panel's Analysis
4.2.1 Introductory comments
4.7. In the current case, Argentina is not challenging the manner in which the complainants have
defined their claims against the alleged RTRRs, but instead whether the complainants properly
identified the specific measures that were the object of those claims. Argentina's allegation relates
to the distinction between claims brought against a measure "as such" and claims brought against
a measure "as applied".
4.8. In its preliminary ruling of 16 September 2013, the Panel already concluded that:
[T]he RTRRs were identified by the complainan ts as a measure at issue, both in their
respective requests for consultations as well as in their panel requests. The differences
in language used by the complainants when describing these measures in their

46 European Union's first written submission, paras. 22, 328, 385-490. See also, European Union's
opening statement at the first meeting of the Panel, para. 35; European Union's second written submission,
fn 102.
47 European Union's response to Panel question No. 1.
48 Argentina's first written submission, para. 133.
49 Ibid. para. 134.
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requests for consultations, as compared to their panel requests, are minor and do not
expand the scope of the dispute or change its essence.50
4.9. The following preliminary comments may be made with respect to Argentina's arguments on
the complainants' claims against the alleged RTRRs "as applied":
a. Japan is the only complainant that has used the expression "as applied" and has asked
the Panel to issue separate findings regarding the RTRRs "as such" and "as applied".51
b. At the first meeting of the Panel, in its response to Panel question No. 4 and in its
second written submission, Argentina asserts that Japan and the United States failed to
identify the measures subject to their "as applied" claims in their respective requests for
consultations; however, Argentina's request for a preliminary ruling in its first written
submission asserts instead that the United States and Japan failed to identify those
measures in their panel requests.52
c. Argentina does not argue that the Europe an Union failed to identify the 23 specific
instances of application of RTRRs in its panel request. Argentina's argument is instead
that these specific instances of application were not identified in the European Union's
request for consultations.
d. Argentina has limited its challenge on the sufficiency of the description of the measures
at issue in the complainants' panel requests with respect to their challenges against the
RTRRs "as applied". In other words, notwithstanding that Japan has specified that it is
challenging the RTRRs both "as such" and "as applied",
53 Argentina does not argue that
the claims raised by Japan regarding the RTRRs "as such" are not covered by Japan's
request for consultations or by its panel request. This is despite the fact that Japan has
indicated that "[t]he specific measures that are the object of Japan's 'as applied' claims
are the very same as those that Japan also challenges 'as such'".
54
4.2.2 The requirement to identify the "measures at issue" in the panel request
4.10. The issues raised by Argentina bring into question this Panel's jurisdiction. Accordingly, the
Panel must deal with them if necessary on its ow n motion and "even if the parties to the dispute
remain silent on those issues" in order to satisfy itself that it has authority to proceed. 55 As noted
by the Appellate Body, "it is incumbent upon a pa nel to examine the request for the establishment
of the panel very carefully to ensure its compliance with both the letter and the spirit of Article 6.2
of the DSU".
56
4.11. The Panel will begin its analysis by scrutinizing the complainants' panel requests to ensure
their compliance with both the letter and the spirit of Article 6.2 of the DSU. 57 If the Panel were to
find that the panel requests properly identify the alleged RTRRs as measures at issue, it would
then need to additionally consider whether those measures were properly identified in the
respective requests for consultations. In this respect, the Appellate Body has noted that, although
in considering the sufficiency of a panel request, a panel may consult submissions and statements
made in the course of the proceedings, "complianc e with the requirements of Article 6.2 must be
demonstrated on the face of the [panel request]".
58
4.12. Article 6.2 of the DSU provides in its relevant part that a panel request:

50 Preliminary Ruling by the Panel, Argentina – Import Measures (16 September 2013), para. 3.24.
51 See, Ibid, para. 3.41. See also, Japan's response to Panel question No. 2; Japan's first written
submission, paras. 185, 198 and 218; Japan's second written submission, paras. 7 and 20.
52 See fn 18 above.
53 Japan's first written submission, paras. 185 and 198; Japan's response to Panel question No. 2.
54 Japan's response to Panel question No. 2.
55 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36.
56 Appellate Body Report, EC - Bananas III, para. 142.
57 Appellate Body Report, US – Carbon Steel, para. 126.
58 Ibid. para. 127.
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[S]hall 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…
4.13. Pursuant to Article 6.2 of the DSU, a panel request must thus comply with "two distinct
requirements"
59: (i) it must identify the specific measures at issue; and, (ii) it shall provide a brief
summary of the legal basis of the complaint (i.e. its claims) 60 sufficient to present the problem
clearly.61
4.14. The identification of the specific measures at issue in the complainant's panel request:
[Must] be sufficiently precise for two reasons: first, it often forms the basis for the
terms of reference of the panel pursuant to Article 7 of the DSU; and, second, it
informs the defending party and the third parties of the legal basis of the complaint.
62
4.15. The Appellate Body has also noted that "the identification of the specific measures at issue,
pursuant to Article 6.2", which must be done "with sufficient precision so that what is referred to
adjudication by a panel may be discerned fr om the panel request", is different from a
demonstration of the existence of such measures:
[A]lthough a measure cannot be identified without some indication of its contents, the
identification of a measure within the meaning of Article 6.2 need be framed only with
sufficient particularity so as to indicate the nature of the measure and the gist of what
is at issue.
63
4.16. In other words, a complainant must identify in its panel request the measure at issue with
"sufficient precision". There is no requirement, however, that a complainant must demonstrate the
existence and precise content of a measure for a panel request to fulfil the requirement in
Article 6.2 of the DSU. 64 Instead, for the demonstration of the existence and the nature of the
challenged measures, "a complainant would be expected to present relevant arguments and
evidence during the panel proceedings showing the existence of the measures … ". 65
4.2.3 The distinction between claims rais ed on a measure "as such" and against a
measure "as applied"
4.17. The pending issues raised by Argentina's request relate to a distinction between claims
brought against a measure "as such" and those brought against a measure "as applied". As noted
by the Appellate Body:
[T]he distinction between "as such" and "as applied" claims … has been developed in
the jurisprudence as an analytical tool to facilitate the understanding of the nature of
a measure at issue. This heuristic de vice, however useful, does not define
exhaustively the types of measures that may be subject to challenge in WTO dispute
settlement. In order to be susceptible to challenge, a measure need 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 instance of the application of a rule or
norm.
66
4.18. It is established practice in WTO dispute settlement that Members can challenge, not only
the application of measures in specific circumstances, but also rules or norms of general and
prospective application, irrespective of their actual application and even if they have not been

59 Appellate Body Report, EC – Selected Customs Matters, para. 130. See also, Ibid, para. 131.
60 Appellate Body Report, Guatemala – Cement I, para. 72.
61 Appellate Body Report, Korea – Dairy, para. 120. See also, Appellate Body Report, US – Carbon Steel,
para. 125.
62 Appellate Body Report, EC – Bananas III, para. 142. See also, Appellate Body Reports, US – Carbon
63 Appellate Body Report, US – Continued Zeroing, paras. 168-169.
64 Ibid. para. 168.
65 Ibid. para. 169.
66 Ibid. para. 179.
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applied in practice. Challenges against a measure "as such" can be brought independently or
simultaneously with challenges against a measure "as applied". 67 The Appellate Body has noted
that "as such" challenges against a Member's measures in WTO dispute settlement proceedings
(which seek to prevent Members ex ante from engaging in certain conduct) are especially serious
challenges, because they have more far-reaching implications than "as applied" claims.
68
4.19. Even an unwritten measure can be challeng ed "as such", as long as it has general and
prospective application, but particular rigour mu st be exercised by a panel to conclude on the
existence of an unwritten "rule or norm".69 The Appellate Body has cautioned, however, that:
[W]hen bringing a challenge against such a "rule or norm" that constitutes a measure
of general and prospective application, a complaining party 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 indeed, that it does
have general and prospective application. It is only if the complaining party meets this
high threshold, and puts forward sufficient evidence with respect to each of these
elements, that a panel would be in a position to find that the 'rule or norm' may be
challenged, as such. This evidence may include proof of the systematic application of
the challenged "rule or norm". Particular rigour is required on the part of a panel to
support a conclusion as to the existence of a "rule or norm" that is not expressed in
the form of a written document. A panel must carefully examine the concrete
instrumentalities that evidence the existenc e of the purported 'rule or norm' in order
to conclude that such 'rule or norm' can be challenged, as such.
70
4.20. In the current case, the complainants ar e challenging a number of alleged RTRRs, which
constitute unwritten measures. 71 The Appellate Body has observed that, "[w]hen a challenge is
brought against an unwritten measure, the very existence and the precise contours of the alleged
measure may be uncertain".72 Because their challenge is directed against unwritten measures, the
complainants are expected to have identified such measures in their panel requests "as clearly as
possible" and to have state "unambiguously the legal basis for [their claims]". In other words,
through their panel requests, the complainants should have "[given] respondents and third parties
sufficient notice of the specific measures that [they intend] to challenge in WTO dispute settlement
proceedings."
73
4.2.4 The description of the alleged RTRRs
4.21. The complainants identify the alleged RTRRs in their respective panel requests in an almost
identical manner as follows:
Separately and/or in combination with the measures described in Sections I and II
[the DJAI requirement and the CIs requirement, respectively] 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.
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

67 Appellate Body Report, US – 1916 Act, para. 61.
68 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, paras. 172-173.
69 Appellate Body Report, US – Zeroing (EC), paras. 193, 198-205. See also, Panel Report, US – Zeroing
(Japan), paras. 7.49 and 7.50.
70 Appellate Body Report, US – Zeroing (EC), para. 198.
71 European Union's Panel Request, p. 3; United States' Panel Request, p. 4; Japan's Panel Request,
p. 4.
72 Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 792. (emphasis
original)
73 Ibid.
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enforces these requirements by withholding permission to import, inter alia, by
withholding the issuance of DJAI or CI approvals. … 74
4.22. The United States' and Japan's panel requests indicate that:
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 [certain provisions of the GATT 1994].75
4.23. In turn, the European Union states that:
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 [certain provisions
of the GATT 1994].
76
4.24. In other words, the complainants' panel requests enumerate "certain actions" that,
according to the complainants, Argentina requires economic operators to undertake as a condition
to be granted permission to import goods into Argentina. The complainants have referred to the
requirement on economic operators to undertake those actions as the "Restrictive Trade Related
Requirements" (RTRRs). The United States and Japan note that their claims refer to the alleged
RTRRs, as well as to "any application thereof".
4.25. In the specific case of Japan's claims, the Panel notes that Japan has clarified that the
measures that are the object of its "as applied" claims are the same measures that are the object
of its claims "as such".
77 Accordingly, in the circumstances of the present case and in light of the
unwritten nature of the challenged measures, in th eir respective panel requests the complainants
have identified the alleged RTRRs in a "sufficiently precise" manner so as to "present the problem
clearly". The complainants will have the burden, in the course of the proceedings, to present the
arguments and evidence necessary to demonstrate the nature and characteristics of the
challenged measure. Because the alleged RTRRs are unwritten, much of the evidence to be
considered by the Panel may necessarily relate to the application of the measure. This is
irrespective of whether the evidence is provided in relation to claims concerning the RTRRs "as
such" or "as applied".
4.26. The Panel will deal with the issue of whet her the arguments and evidence on the record are
sufficient to make a prima facie case that the alleged RTRRs are inconsistent with Argentina's WTO
obligations either "as such" or "as applied" in its final report. In the meantime, and in terms of the
requirements of Article 6.2 of the DSU, the descrip tion of the RTRRs provided by the complainants
is clear and sufficiently precise as to: (i) allow the Panel to ascertain its terms of reference;
(ii) serve the due process objective of notifying Argentina of the nature of the complainants' case
with respect to the RTRRs; and, (iii) give sufficient notice to other WTO Members of the specific
measures that the complainants have challenged in the current proceedings, so that those other
WTO Members may understand the nature of the dispute and determine whether they have any
substantial interest in the matter.
4.27. Moreover, in practice, there is no indication that Argentina's ability to defend itself in the
course of these proceedings has been prejudiced in any way by the manner in which the
complainants have described the alleged RTRRs as a specific measure at issue in their respective
panel requests; indeed, Argentina has neither argued this, nor presented any evidence in this
regard. There is also no indication that the ability of other WTO Members to understand the nature
of the dispute and to determine whether they have any substantial interest in the matter has been
impaired by the manner in which the complainants described the specific measure at issue.

74 United States' Panel Request, p. 4. See also, European Union's Panel Request, p. 3; Japan's Panel
Request, pp. 3-4.
75 United States' Panel Request, p. 4. See also, Japan's Panel Request, p. 4.
76 European Union's Panel Request, p. 4.
77 Japan's response to Panel question No. 2.
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4.28. In other words, the alleged RTRRs have been properly identified by the complainants as
"measures at issue". Whether Japan presents enough arguments and evidence in the course of the
proceedings to sustain its request for findings on those measures "as such" and "as applied" is a
matter that the Panel will address in its final report. The latter is an issue that is not related to the
identification of the measure, but to the complainants' burden to make a prima facie case that the
challenged measures are inconsistent with Argentina's WTO obligations.
4.29. Having concluded that the complainants' panel requests properly identify the alleged RTRRs
as measures at issue in the present dispute, the Panel should consider whether those measures
were properly identified in the respective requests for consultations.
4.30. In this respect, Article 4.4 of the DSU, which contains the requirements for requests for
consultations, states that:
Any request for consultations shall be submitted in writing and shall give the reasons
for the request, including identification of the measures at issue and an indication of
the legal basis for the complaint.
4.31. With respect to the obligation to identify the measures at issue, the panel in EC and certain
member States – Large Civil Aircraft emphasized the difference in language between Article 4.4
and Article 6.2, observing that "Article 4.4 of the DSU requires only that the request for
consultations must identify 'the measures at issue', as opposed to the 'specific measures at issue'
as required by Article 6.2 of the DSU".
78
4.32. In any event, in its preliminary ruling of 16 September 2013, the Panel noted that, both in
their requests for consultations and in their panel requests, the complainants used similar
language to identify the RTRRs as a measure at issue. As stated by the Panel in its preliminary
ruling:
The manner in which the RTRRs were described by the complainants in their
respective requests for consultations was sufficient to put the respondent on notice
that these alleged requirements were part of the measures at issue for the purpose of
the consultations. The small differences in language used in describing the RTRRs in
the requests for consultations, as compared with the respective panel requests, are
insignificant and do not expand the scope nor change the essence of the dispute.
4.33. Having concluded that that the alleged RT RRs are properly identified in the complainants'
panel requests, the Panel concludes additionally that they were properly identified in the
complainants' respective requests for consultations.
4.2.5 The 23 specific instances of applicat ion of the alleged RTRRs in Section 4.2.4 of
the European Union's first written submission
4.34. Section 4.2.4 of the European Union's first written submission describes 23 measures
qualified by the European Union as "specific instances of application of the RTR requirements".
79
The European Union has indicated that the 23 specific instances of application identified in its first
written submission correspond to "23 of the 29 ca ses listed in the EU Panel Request", which the
European Union has decided to pursue as "separate measures". 80 According to the
European Union, each of the 23 "specific instan ces of application of the [RTRRs]" described in
Section 4.2.4 of its first written submission relates to a bullet point describing an "instance of
[RTRRs] affecting products originating in the European Union" in Annex III of the European Union's
panel request.81
4.35. Annex III of the European Union's panel request (a section that is found neither in the
United States' panel request nor in Japan's panel request) lists the title of 29 articles or press
releases and includes internet links to the text of each of those articles or press releases. In order

78 Panel Report, EC and certain member States – Large Civil Aircraft, para. 7.126.
79 European Union's first written submission, paras. 385-490.
80 European Union's response to Panel question No. 1, paras. 5-6 and 15.
81 European Union's first written submission, footnotes 446, 453, 461, 465, 473, 480, 484, 491, 497,
504, 509, 516, 520, 526, 530, 535, 541, 548, 562, 568, 574, 577 and 583.
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to identify the measures that, according to the European Union, constitute the 23 individual
specific measures at issue as "specific instances of application of the RTR requirements", a reader
of the European Union's panel request would need to:
a. Visit the websites identified in the list of 29 internet links in Annex III of the
European Union's panel request;
b. Read each of the 29 articles or press releases; and,
c. Deduce from each of these articles what may be the specific measures at issue
challenged by the European Union.
4.36. Even after having completed these steps, the reader would still need to turn to the
European Union's first written submission in order to be able to identify the "specific instances of
application of the RTR requirements" that are being challenged as 23 individual measures at issue
by the European Union.
4.37. 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"
82 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 described by the European Union. However, on its face
83, the list
provided by the European Union in Annex III of its panel request does not identify any "specific
measures at issue".
4.38. For the reasons indicated, the 23 measures described by the European Union in its first
written submission as "specific instances of application of the RTR requirements" do not constitute
"measures at issue" in the terms of Article 6.2 of the DSU. It is therefore unnecessary for the
Panel to examine further whether, as argued by Ar gentina, the European Union failed to identify
these "specific instances of application of the RTR requirements" in its request for consultations.
5 CONCLUSION
5.1. In light of the above considerations, the Panel finds that:
a. The complainants' panel requests properly identify the alleged "Restrictive Trade Related
Requirements" (RTRRs) as measures at issu e in the present dispute and, therefore,
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 as "specific instances" of application of alleged RTRRs do not constitute
"measures at issue" in the present dispute.
5.2. This preliminary ruling will become an integr al part of the Panel's final report, subject to any
changes that may be necessary in the light of comments received from the parties during the
interim review.