149(WT/DS161/AB/R, WT/DS169/AB/R), … We are not holding that a dual or parallel distribution system that is not imposed directly or indirectly by law or governmental regulation, but is rather solely the result of private entrepreneurs acting on their own calculations of comparative costs and benefits of differentiated distribution systems, is unlawful under Article III:4 of the GATT 1994. The subject matter of the procurement is a “product”, and it is being procured by a “governmental agency”. Thus, to be “not similarly taxed”, the tax burden on imported products must be heavier than on “directly competitive or substitutable” domestic products, and that burden must be more than de minimis in any given case. 205, 207(WT/DS396/AB/R, WT/DS403/AB/R). In conducting this inquiry, panels should give full consideration to all the relevant facts and all the relevant circumstances in any given case. While in the determination of “likeness” a panel may logically start from the physical characteristics of the products, none of the criteria that a panel considers necessarily has an overarching role in the determination of “likeness” under Article III:2 of the GATT 1994. See also National Treatment, Article III:4 of the GATT 1994 — “less favourable treatment” (N.1.11), N.1.1 Article III:1 of the GATT 1994 — General principle   back to top, N.1.1.1 Japan — Alcoholic Beverages II, pp. It would be incongruous if, due to a significant difference in the product scope of these two provisions, Members were prevented from using one form of regulation — for instance, fiscal — to protect domestic production of certain products, but were able to use another form of regulation — for instance, non-fiscal — to achieve those ends. Accordingly, whether the Border Tax Adjustments framework is adopted or not, it is important under Article III:4 to take account of evidence which indicates whether, and to what extent, the products involved are — or could be — in a competitive relationship in the marketplace. Furthermore, the object and purpose of Article III:8(b) is confirmed by the drafting history of Article III. A. This suggests, in our view, that even where the products are made from different raw materials and may, as a consequence, present some physical differences that are not completely eliminated in the production process, they can be in a sufficiently close competitive relationship to be considered “like products” within the meaning of Article III:2, first sentence, of the GATT 1994. We do not agree with the Philippines that [the Panel’s statement that “ the imported and domestic products at issue in this dispute are indeed capable of being directly competitive or substitutable in the future”] is in error. Accordingly, the scope of the terms “products purchased” in Article III:8(a) is informed by the scope of “products” referred to in the obligations set out in other paragraphs of Article III. … we find that the amount of the taxation is far above the de minimis threshold required by the Appellate Body Report in Japan — Alcoholic Beverages. National Treatment, Article III:4 of the GATT 1994 — Regulatory discrimination, Textiles and Clothing Agreement, Article 6.2 — “like products”, TBT Agreement, Article 2.1 — MFN and national treatment obligations, “like products”, Directly Competitive or Substitutable Products, Textiles and Clothing Agreement, Article 6.2 — “directly competitive products”, National Treatment, Article III:2 of the GATT 1994, first sentence — “like products”, National Treatment, Article XVII of the GATS, National Treatment, Article 3.1 of the TRIPS Agreement, TBT Agreement, Article 2.1 — MFN and national treatment obligations, “treatment no less favourable”, SCM Agreement, Relationship between the SCM Agreement and the GATT 1994, SCM Agreement, Relationship between the SCM Agreement and the TRIMs Agreement, General Exceptions: Article XX of the GATT 1994, Article XX(g) — Jurisdictional limitation, National Treatment, Article III:4 of the GATT 1994 — “less favourable treatment”. Therefore, the harmony that we have attributed to the two sentences of Article III:2 need not and, indeed, cannot be replicated in interpreting Article III:4. But Cuban original owners residing in the “authorized trade territory” must apply to OFAC. … while the meaning attributed to the term “like products” in other provisions of the GATT 1994, or in other covered agreements, may be relevant context in interpreting Article III:4 of the GATT 1994, the interpretation of “like products” in Article III:4 need not be identical, in all respects, to those other meanings. We note that in Article III:8(a) the word “governmental” is used once in connection with “purposes”, and again in connection with the word “agencies”. This examination cannot rest on simple assertion, but must be founded on a careful analysis of the contested measure and of its implications in the marketplace. 128(WT/DS396/AB/R, WT/DS403/AB/R). It is not surprising, and indeed to be expected, that the same measure may exhibit some characteristics that suggest it is a measure falling within the scope of Article II:1(b), and others suggesting it is a measure falling within the scope of Article III:2. We consider this to be especially so in cases where the evidence relating to properties establishes that the products at issue are physically quite different. When all the relevant evidence has been examined, panels must determine whether that evidence, as a whole, indicates that the products in question are “like” in terms of the legal provision at issue. … Article III:8(a) begins with the words “The provisions of this Article shall not apply to …”.