It's easy to get distracted with all of the interesting aspects of Clove Cigarettes and Tuna, but let's not forget that there is another non-discrimination case going on: Philippines - Distilled Spirits. This case deals with GATT Article III:2. Here is the Philippines' notice of appeal: http://www.worldtradelaw.net/na/ds403-7(na).pdf
Some key parts:
I. APPEAL OF THE PANEL'S FINDINGS OF A VIOLATION OF ARTICLE III:2, FIRST SENTENCE OF THE GATT 1994
3. The Panel erred in its interpretation and application of the term "like products" under Article III:2, first sentence of the GATT 1994 and failed to apply the appropriate standard when assessing the products' physical characteristics, consumer tastes and habits, and the products' tariff classifications.
4. The Panel's errors of law and legal application include:
(a) The Panel failed to apply the correct standard when examining the physical characteristics of the products in question, and the manner in which they compete in the Philippine market.
(b) The Panel failed to apply the correct standard when assessing consumers' tastes and habits in the Philippine market.
(c) The Panel failed to apply the appropriate standard when examining whether the tariff classification of non-sugar-based spirits and sugar-based spirits indicated "likeness."
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II. APPEAL OF THE PANEL'S FINDINGS OF A VIOLATION OF ARTICLE III:2, SECOND SENTENCE OF THE GATT 1994
6. The Panel erred in its interpretation and application of the term "directly competitive or substitutable" within the meaning of Article III:2, second sentence of the GATT 1994, as well as the term "so as to afford protection". The Panel consequently also failed to apply the correct standard when assessing competition in the Philippine market.
7. The Panel's errors of law and legal application include:
(a) The Panel failed to properly interpret and apply the term "directly" when it found that competition existed in the market due to the possibility that some consumer could purchase non-sugar-based spirits on "special occasions."
(b) The Panel failed to apply the correct standard when it found that it was sufficient for a certain market segment to have access to both types of products.
(c) The Panel failed to apply the correct standard when it found that potential competition existed in the Philippine market.
(d) The Panel misinterpreted the application of the term "directly competitive or substitutable" by finding that some degree of substitutability in a non-representative sample of the market in question was sufficient to show direct competition.
(e) The Panel erred in its interpretation of the treaty term "so as to afford protection to domestic production", and misapplied this provision in the instant case.
Will the Appellate Body say some things in this case that might provide hints about how Clove Cigarettes and Tuna will go?
