Speaking of dissents, as we have been, I just noticed something from the U.S. China - Exportation of Raw Materials submission. As mentioned in the last post, the U.S. made the following argument:
363. The reasoning of a General Agreements on Tariff and Trade 1947 (“GATT 1947”) panel supports this analysis. In EEC – Fruits and Vegetables, that panel examined a minimum price requirement imposed on the importation of tomato concentrates by what was then the European Economic Community (“EEC”). The minimum import price requirement at issue in that dispute consisted of a regulation providing for the annual establishment of a minimum import price for tomato concentrates, which was enforced by an associated security system. The associated security system conditioned the issuance of import certificates for tomato concentrates on the lodging of an additional security in order to guarantee that the free-at-frontier price of imports plus the customs duty for the good together equaled or exceeded the minimum price that had been set for that year. In any case where tomato concentrates were imported at a price lower than the established minimum import price, the security would be forfeited.446 The EEC – Fruits and Vegetables panel found that “the minimum import price system, as enforced by the additional security, was a restriction ‘other than duties[,] taxes or other charges’ within the meaning of Article XI:1.”447
Fn 447 states in relevant part:
GATT Panel Report, EEC – Fruits and Vegetables, para. 4.9 (“the Panel considered that the minimum import price system, as enforced by the additional security, was a restriction ‘other than duties taxes or other charges’ within the meaning of Article XI:1.”) ...
The Fruits and Vegetables panel report is here. What's interesting for the purposes of this discussion is that right after the quoted finding from the Fruits and Vegetables panel (i.e., in the last sentence of para. 363 and in the footnote), there is, yes, a dissent:
One member of the Panel considered that the minimum import price system, as enforced by the additional security, could well be applied in a way which would qualify it as a restriction "other than duties, taxes or other charges" within the meaning of Article XI:1. However, having noted the explanations given with respect to the functioning of the system, this member considered that importation of tomato concentrate at a price lower than the minimum price could still be carried out by importers who had an interest in doing so. He further considered that the system operated in a way to levy an additional charge which raised the price of tomato concentrate imported at a price lower than the minimum price. Therefore, he concluded that the minimum import price system was not being enforced in a manner which would qualify it as a restriction within the meaning of Article XI.
See para. 4.9. Perhaps, then, in addressing the Article XI minimum price issue, the China - Exportation of Raw Materials case will provide some insights as to the value and role of dissents. (I'm not familiar enough with the facts of the two cases to come to any conclusions on the substance at this point).
