We're not even done talking about U.S. - Clove Cigarettes, but now we have a new TBT panel report: U.S. - Tuna II (Mexico) (the new tuna-dolphin case). I'm overloading on TBT Agreement issues!
Here's an excerpt from the panel's findings on "likeness":
7.225 The TBT Agreement applies to a limited set of measures, and our understanding of its terms, including the terms "like products" must be informed by this context. As expressed in the preamble of the TBT Agreement, this Agreement reflects the intention of the negotiators to:
"[E]nsure that technical regulations and standards, including packaging, marking and labelling requirements, and procedures for assessment of conformity with technical regulations and standards do not create unnecessary obstacles to trade."
To the extent that Article 2.1 contributes to avoiding "unnecessary obstacles to trade" arising from undue discrimination with respect to technical regulations, it seeks to preserve the competitive opportunities of products originating in any Member, in relation to technical regulations. Thus, the term "like products" under Article 2.1 of the TBT Agreement may be similarly understood as relating to "the nature and extent of a competitive relationship" between and among products.
So it appears that for this panel, unlike for the Cloves panel, "likeness" under Article 2.1 is all about competitiveness.
