130. The Panel's reasoning implies

130. The Panel's reasoning implies that under no circumstances could any value-added requirement result in a finding of contingency "in law" upon the use of domestic over imported goods. We do not agree. We noted that the definition of "Canadian value added" in the MVTO 1998 requires a manufacturer to report to the Government of Canada the aggregate of certain listed costs of its production of motor vehicles, and that the first such cost item specified is the cost of Canadian parts and materials used in the production of motor vehicles in its factory in Canada. It seems to us that whether or not a particular manufacturer is able to satisfy its specific CVA requirements without using any Canadian parts and materials in its production depends very much on the level of the applicable CVA requirements. For example, if the level of the CVA requirements is very high, we can see that the use of domestic goods may well be a necessity and thus be, in practice, required as a condition for eligibility for the import duty exemption. By contrast, if the level of the CVA requirements is very low, it would be much easier to satisfy those requirements without actually using domestic goods; for example, where the CVA requirements are set at 40 per cent, it might be possible to satisfy that level simply with the aggregate of other elements of Canadian value added, in particular, labour costs. The multiplicity of possibilities for compliance with the CVA requirements, when these requirements are set at low levels, may, depending on the specific level applicable to a particular manufacturer, make the use of domestic goods only one possible means (means which might not, in fact, be utilized) of satisfying the CVA requirements.
131. In our view, the Panel's examination of the CVA requirements for specific manufacturers was insufficient for a reasoned determination of whether contingency "in law" on the use of domestic over imported goods exists. For the MVTO 1998 manufacturers and most SRO manufacturers, the Panel did not make findings as to what the actual CVA requirements are and how they operate for individual manufacturers. Without this vital information, we do not believe the Panel knew enough about the measure to determine whether the CVA requirements were contingent "in law" upon the use of domestic over imported goods. We recall that the Panel did make a finding as to the level of the CVA requirements for one company, CAMI. The Panel stated that the CVA requirements for CAMI are 60 per cent of the cost of sales of vehicles sold in Canada. At this level, it may well be that the CVA requirements operate as a condition for using domestic over imported goods. However, the Panel did not examine how the CVA requirements would actually operate at a level of 60 per cent.

132. The Panel's failure to examine fully the legal instruments at issue here and their implications for individual manufacturers vitiates its conclusion that the CVA requirements do not make the import duty exemption contingent "in law" upon the use of domestic over imported goods. In the absence of an examination of the operation of the applicable CVA requirements for individual manufacturers, the Panel simply did not have a sufficient basis for its finding on the issue of "in law" contingency. Thus, we conclude that the Panel erred in conducting its "in law" contingency analysis.
133. In Australia – Salmon, we stated that where we have reversed a finding of a panel, we should attempt to complete a panel's legal analysis "to the extent possible on the basis of the factual findings of the Panel and/or of undisputed facts in the Panel record". Here, as we have stated, the Panel did not identify the precise levels of the CVA requirements applicable to specific manufacturers. In addition, there are not sufficient undisputed facts in the Panel record that would enable us to examine this issue ourselves. As a result, it is impossible for us to assess whether the use of domestic over imported goods is a condition "in law" for satisfying the CVA requirements, and, therefore, is a condition for receiving the import duty exemption.
134. In light of these considerations, we are unable to complete the legal analysis necessary to determine whether the import duty exemption, through the application of the CVA requirements, is contingent "in law" upon the use of domestic over imported goods. Therefore, we make no finding and reserve our judgment on whether the import duty exemption at issue is contingent "in law" upon the use of domestic over imported goods within the meaning of Article 3.1(b) of the SCM Agreement.
B. Whether the Measure is Contingent "in Fact" Upon the Use of Domestic over Imported Goods
135. On appeal, the European Communities and Japan have maintained that if we find that the measure is not contingent "in law" upon the use of domestic over imported goods, then they appeal, in the alternative, the Panel's f

Kết quả (Anh) 1:

130. The Panel's reasoning implies that under no circumstances could any value-added requirement result in a finding of contingency "in law" upon the use of domestic over imported goods. We do not agree. We noted that the definition of "Canadian value added" in the MVTO, 1998 requires a manufacturer to report to the Government of Canada, the aggregate of certain listed costs of its production of motor vehicles, and that the first such cost item specified is the cost of Canadian parts and materials used in the production of motor vehicles in its factory in Canada. It seems to us that whether or not a particular manufacturer is able to satisfy its specific CVA requirements without using any Canadian parts and materials in its production depends very much on the level of the applicable CVA requirements. For example, if the level of the CVA requirements is very high, we can see that the use of domestic goods may well be a necessity and thus be, in practice, required as a condition for eligibility for the import duty exemption. By contrast, if the level of the CVA requirements is very low, it would be much easier to satisfy those requirements without actually using domestic goods; for example, where the CVA requirements are set at 40 per cent, it might be possible to satisfy that level simply with the aggregate of other elements of the Canadian value added, in particular, labour costs. The multiplicity of possibilities for compliance with the CVA requirements, when these requirements are set at low levels, may, depending on the specific level applicable to a particular manufacturer, make the use of domestic goods only one possible means (means which might not, in fact, be utilized) of satisfying the CVA requirements.131. In our view, the Panel's examination of the CVA requirements for specific manufacturers was insufficient for a reasoned determination of whether contingency "in law" upon the use of domestic over imported goods exists. For the MVTO, 1998 and most manufacturers SRO manufacturers, the Panel did not make findings as to what the actual CVA requirements are and how they operate for individual manufacturers. Without this vital information, we do not believe the Panel knew enough about the measure to determine whether the CVA requirements were contingent "in law" upon the use of domestic over imported goods. We recall that the Panel did make a finding as to the level of the CVA requirements for one company, CAMI. The Panel stated that the CVA requirements for CAMI are 60 per cent of the cost of sales of vehicles sold in Canada. At this level, it may well be that the CVA requirements operate as a condition for using domestic over imported goods. However, the Panel did not examine how the CVA requirements would actually operate at a level of 60 per cent. 132. The Panel's failure to examine fully the legal instruments at issue here and their implications for individual manufacturers vitiates its conclusion that the CVA requirements do not make the import duty exemption "in law" contingent upon the use of domestic over imported goods. In the absence of an examination of the operation of the applicable CVA requirements for individual manufacturers, the Panel simply did not have a sufficient basis for its finding on the issue of "in law" contingency. Thus, we conclude that the Panel erred in conducting its "in law" contingency analysis.133. In Australia-Salmon, we stated that where we have reversed a finding of a panel, we should attempt to complete a panel's legal analysis "to the extent possible on the basis of the factual findings of the Panel and/or of the undisputed facts in the Panel record". Here, as we have stated, the Panel did not identify the precise levels of the CVA requirements applicable to specific manufacturers. In addition, there are not sufficient undisputed facts in the Panel record that would enable us to examine this issue ourselves. As a result, it is impossible for us to assess whether the use of domestic over imported goods is a condition "in law" for satisfying the CVA requirements, and, therefore, is a condition for receiving the import duty exemption.134. In light of these considerations, we are unable to complete the legal analysis necessary to determine whether the import duty exemption, through the application of the CVA requirements, is contingent "in law" upon the use of domestic over imported goods. Therefore, we make no finding and reserve our judgment on whether the import duty exemption at issue is contingent "in law" upon the use of domestic over imported goods within the meaning of Article 3.1 (b) of the SCM Agreement.B. Whether the Measure is Contingent "in Fact" Upon the Use of Domestic over Imported Goods135. On appeal, the European Communities and Japan have maintained that if we find that the measure is not contingent "in law" upon the use of domestic over imported goods, then they appeal, in the alternative, the Panel's f

Kết quả (Anh) 2:

130. The Panel's reasoning under no Circumstances là có any value-added requirement could result in a finding of contingency "in law" upon the use of Domestic Goods imported over. We do not agree. We noted là definition of "Canadian value added" in the MVTO 1998 requires a manufacturer to report to the Government of Canada the aggregate of Certain Costs listed production of motor vehicles of ITS, và có the first cost is the cost of the item rõ Canadian parts and materials used in the production of motor vehicles in Canada factory in ITS. It Seems to us có một nếu or not Satisfy các thể manufacturer is CVA requirements without using any specific Canadian parts and materials in production depends very much nó on the level of the applicable CVA requirements. For example, if the level of the CVA requirements is very high, WE CAN use of Domestic see là là Method for sewing Necessity and thì well be, in practice, required as a condition for eligibility for the import duty Exemption. By contrast, if the level of the CVA requirements is very low, it would be much Easier to Satisfy những Actually requirements without using Domestic Goods; for example, where the CVA requirements are set at 40 per cent, It Might Be Possible to Satisfy khi có giản level of other elements of the Canadian aggregate value added, in Particular, Labour Costs. The multiplicity of compliance with the CVA POSSIBILITIES for requirements, requirements are set at khi những low levels, unfortunately, on the specific phụ thuộc applicable to một manufacturer level, make the use of only one possible The Domestic Goods means again (Which means again to might not, in fact, be utilized) of satisfying the CVA requirements.
131. In our view, the Panel's Examination of the CVA requirements for specific manufacturers for a reasoned determination was đủ of nếu contingency "in law" on the use of Domestic Goods imported over exists. For the MVTO 1998 manufacturers and most SRO manufacturers, the Panel did not make findings as to what the actual CVA requirements are and how the individual chúng thực for manufacturers. Vital information Without this, We do not believe the Panel Knew enough about the measure to the CVA requirements quyết nếu là Contingent "in law" upon the use of Domestic Goods imported over. We recall did make a là Panel finding as to the level of the CVA requirements for one company, CAMI. The Panel stated CVA requirements for CAMI là là 60 per cent of the cost of sales of vehicles sold in Canada. At this level, it unfortunately well là là là thực CVA requirements condition for using over imported Domestic Goods. Tuy nhiên, the Panel did not Examine how the CVA requirements at a level would Actually thực per cent of 60.

132. The Panel's failure to fully Examine the legal instruments at issue here and ask for their Implications for the individual manufacturers vitiates Conclusion nó là CVA requirements do not make the import duty Exemption Contingent "in law" upon the use of Domestic Goods imported over. In the Absence of an Examination of the operation of the applicable CVA requirements for the individual manufacturers, the Panel did not have a đủ Simply basis for finding on the issue of nó "in law" contingency. Thì, là Panel erred chúng conclude in tiến hành nó "in law" contingency analysis.
133. In Australia - Salmon, chúng stated có Where We have reversed a finding of a panel, We shouldnt thử complete a panel's legal analysis "to the extent possible The on the basis of the factual findings of the Panel and / or of undisputed facts in the Panel record ". Here, as WE HAVE stated, the Panel did not diện the precise levels of the CVA requirements applicable to specific manufacturers. In to addition, there are not undisputed facts in the Panel đủ That would enable us to record this issue Examine Ourselves. As a result, it is impossible for us to Assess Domestic dùng nếu over imported Goods is a condition "in law" for satisfying the CVA requirements, and, therefore, is a condition for the import duty Exemption Receiving.
134. In light of những Considerations, We Are không cần to complete the legal analysis the import duty quyết nếu Exemption, through the application of the CVA requirements, is Contingent "in law" upon the use of Domestic Goods imported over. Therefore, make no finding and reserve chúng our judgment, the import duty on nếu Exemption at issue is Contingent "in law" upon the use of Domestic Goods imported over meaning of Article 3.1 trong (b) of the SCM Agreement.
B. Whether the Measure is Contingent "in Fact" Upon the Use of Domestic over Imported Goods
135. On appeal, the European Communities and Japan have maintained mà rằng If We find Contingent measure is not "in law" upon the use of Domestic Goods imported over, then chúng appeal, in the alternative, the Panel's f