French ban on imports of asbestos products upheld

by Chakravarthi Raghavan

Geneva, 12 Mar 2001 - A French ban on imports of asbestos and products containing asbestos fibres under the Art.XX exceptions of the GATT, for protection of health, has been upheld by the Appellate Body of the WTO in a ruling handed down Monday.

The ruling by the AB, in the dispute raised by Canada against France and the EC,  upheld the earlier panel finding on this issue, that the French ban was an exception covered by Art. XX (b) of the GATT.

The AB ruling on the ‘health’ exception appears to take the issue one step further than in the ‘shrimp-turtle’ disputes about the Art.XX exceptions.

In upholding the French ban on health grounds, and without changing the final conclusion, the AB reversed the panel’s rulings and findings interpreting the Agreement on Technical Barriers to Trade (TBT) as well as providing a new interpretation to the GATT 1994’s Art. III:4 and its use of the term ‘like product’, in effect re- introducing the old GATT working party view that in considering ‘likeness’,consumer tastes and habits in relation to products should also be taken into account.

This raises some questions about rulings based on ‘like products’ in cases involving import of alcoholic beverages, on how consumer tastes and habits are formed or promoted (through advertising?), and the recent EC court ruling (against Sweden) over advertisements on alcoholic beverages and the services single market and a few other consequences.

In another ruling handed down on Monday, regarding Thailand's anti-dumping investigations and levies on imports of certain angles, shapes and sections of iron or non-alloy steel and H-beams from Poland, the AB reversed the panel view that in an anti-dumping determination, the reasoning behind it should be formally or explicitly stated in the determinations to which interested parties must have access, and the factual basis relied upon by the authorities should be discernible from these documents. The AB also reversed the panel’s view that it was required to review the injury determinations, in its assessment whether the investigating authorities had a factual basis ascertainable from the documents in the determination.

The panel’s conclusions, if they had been upheld, would have circumscribed the wide-ranging leeway in AD investigations and the ‘standard of review’ provisions preventing panels from judging these questions.-SUNS4854

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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