Case Study. Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes 蔡奉真、黃琳君、李炎蒼. Parties and measure in dispute. parties ： Dominican Republic Honduras Measure in dispute ： 一、多明尼加要求於該國境內銷售之香菸，不論是否進口產品，包裝上均應貼上印花，以證明已經繳稅得以合法銷售。
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Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes
The Necessity Analysis under Art.XX(d) in relation to the Tax Stamp Requirement
2. Falls within the scope of Art. XX(d)? (-)
Arguments form DR
P erred in interpreting and applying the term “necessary”
Korea-Various Measures on Beef standard: weighing and balancing a series of factors
The trade impact
The importance of interest protected
The contribution of the measure
In the presence of a “tax inspector” ensure the authentic tax stamps, reducing smuggling cigarettes
No reasonably available alternative: increase the risk of smuggling and tax evasion
Arguments from H
DR’s claim should be rejected.
DR’s new decree: permit to affix tax stamp abroad no alternative measure?
AB: two –tier analysis
(1)provisional justification by reason of characterization of the measure under XX(a)~(j)
Necessary(Korea-beef/ US-Section 337/EC-Asbestos )
(2)further appraisal under the introductory clause of Art.XX.
1.the tax stamp is not “necessary” within the meaning of Art.XX(d) of the GATT, therefore, is not justified under Art.XX(d) of the GATT.
2. no need to complete legal analysis under Art.XX.
The Conformity of the Examination of Evidence with Art.11 of the DSU
where participants…have failed to establish that a P exceeded the bounds of its discretion as trier of facts, the AB has not interfered with the findings of the P.
Art.III:4 of the GATT and the Bond Requirement
1.Difference in per-unit cost of bond does not alter the conditions of competition, that fact does not constitute a less favorable treatment to imported products.
2.No violation of Art. III.4 no need to inspect Art.XX(d)
the inconsistency of the bond requirement with Article III:4 of the GATT 1994 was that the bond requirement served to guarantee liability only for the Selective Consumption Tax and that such liability did not exist for importers, who must pay that tax in full at the time of importation.
notwithstanding payment of the Selective Consumption Tax at the time of importation, the bond nevertheless served to secure payment of that tax in the event of an adjustment of the taxpayers' total liability at some point
although Article 376 of the Tax Code appears to refer only to the Selective Consumption Tax, in practice [the Dominican Republic] tax authority treats the bond as a guarantee of compliance with other internal tax obligations incumbent on the domestic producer and the importer of cigarettes,
these contentions were simply arguments in support of its claim that the bond requirement violated Article III:4 of the GATT 1994
the Panel erred in treating its contentions regarding the timing of payment of the Selective Consumption Tax as a separate claim outside of the Panel's terms of reference
the issue of the timing of payment of the Selective Consumption Tax is not dealt with in the legislative provisions identified by Honduras in connection with its claims against the bond requirement
Art.6.2 of the DSU
The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly
US – Carbon Steel
... two distinct requirements, namely identification of the specific measures at issue, and the provision of a brief summary of the legal basis of the complaint (or the claims). Together, they comprise the "matter referred to the DSB", which forms the basis for a panel's terms of reference under Article 7.1 of the DSU