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Concept of “likeness” under the World Trade Organization

The concept of ‘like products’ is also used in Articles I:1, III:4, VI:1(a), IX:1, XI:2(c), XIII:, XVI:4 and XIX:1 of the GATT 1994.

However, the concept of likeness has not been defined in the GATT 1994.

Concept of like products was elaborately discussed by the Appellate Body in the case of EC-Asbestos: With regard to the concept of ‘like products’,

three interpretative questions need to addressed, namely: which characteristics or qualities are important in assessing ‘likeness’; to what degree or extent must products share qualities or characteristics in order to be ‘like products’; and from whose perspective ‘likeness’ should be judged.

In order to determine whether imported and domestic products are “like products,” the following factors are looked into: the properties, nature and quality of the product; the end use of the product; consumers’ tastes and habits; and the tariff classification of the product.(Spain – Tariff Treatment of Unroasted Coffee, 1981).

These four criteria comprise four categories of characteristics which the product involved might share: the physical properties of the products, the extent to which the products are capable of serving the same or similar end uses, The extent to which the consumers perceive and treat the products as alternative means of performing particular functions in order to satisfy a particular want or demand; and the international classification of the product for tariff purposes. (EC-Asbestos- Panel findings)

The Appellate Body reversed the Panel’s findings, in EC-Asbestos, on the ‘likeness’ of chrysotile asbestos fibres and PCG fibres. In this case law, the Appellate Body reduced the narrowness of the decision, in the case of Japan-Alcoholic Beverages II, by allowing non- economic interests and values to be considered in the determination of ‘likeness’.

Another additional observation in the determination of ‘likeness’ is taking note of the regulatory intent behind the ban. In 1992, in US-Malt Beverages, the Panel considered the regulatory intent (or aim) of the measure in determining whether low alcohol beer should be considered ‘like products.

Even though, the aim and effect test was abandoned by the WTO Panels and Appellate Body in the US-Gasoline case.

the thinking and concept of likeness has evolved over the past decade, with consumers preferences moving towards healthier choices. Furthermore, scholars argue that the Appellate Body has in fact reiterated the aim and effect test with respect to likeness in the case of EC-Asbestos.

The Aim and Effect Test

US-Gasoline Case:The Panel observed that chemically

identical imported and domestic gasoline were ‘like products’ because ‘chemically identical imported and domestic gasoline by definition have exactly the same physical characteristics, end-uses, tariff classification and are perfectly substitutable.