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ARGENTINA - TEXTILES AND APPAREL^[1]

I. FACTS

This dispute originated when the United States filed a complaint against Argentina at the World Trade Organization (WTO) concerning certain measures maintained by Argentina “affecting imports, particularly textiles, apparel, and other items”. The United States’ complaint focused on two main measures: the Minimum Specific Import Duties (DIEM) system, which was alleged to exceed Argentina’s bound tariff rate, and the imposition of a “3 per cent” statistical tax on imported goods^[2].

The Panel concluded that both measures - the “minimum specific duties” on textiles and apparel, and the “3 per cent ad valorem” statistical tax - were inconsistent with the requirements of Articles II and VIII of the GATT 1994, respectively ^[3]. Argentina subsequently appealed these legal findings^[4].

II. ISSUES

1. Whether the change in the type of tariff constitutes a violation of Article II of the GATT 1994.^[5]
2. Whether the Panel erred in concluding that Argentina violated Article II “in all cases” in which it applied the Minimum Specific Import Duties (DIEM)
3. Whether the Panel erred in concluding that Argentina’s 3% ad valorem statistical tax violated Article VIII of the GATT 1994^[6], by failing to consider the obligations Argentina claims to have undertaken with the International Monetary Fund (IMF).
4. Whether the Panel committed procedural errors and failed to objectively assess the evidence under Article 11 of the DSU^[7].

III. THE LAW:

(1) Under Article II:1(a)(b) of GATT 1994^[8], WTO Members are required to provide imports originating from other Members the most favourable treatment set out in their Schedules of Concessions. That is, a Member is not able to levy customs duties above the bound rates found in its Schedule, as the rates constitute the maximum degree of protection allowable. If the form of duty is changed by one Member, e.g., from an ad valorem to an ad valorem equivalent-specific duty, and the ad valorem equivalent is above the bound rate, the Member is violating Article II:1(b).

(2) The very same Article II:1(a)(b)^[9] provisions of GATT 1994 are triggered. They decide whether the DIEM regime by design or by implementation automatically took duties above the level bound or only under determined conditions.

(3) Article VIII:1(a) of GATT 1994^[10] demands that Panels have regard to the facts, the law applicable, and measure of conformity in an impartial and vigorous way. Since Panels have procedural discretion in the balancing of evidence and the issue of taking external advice, this is always to be carried out consonantly with fairness and due process.

(4) Article 11 of the DSU^[11] requires Panels to scrutinise the facts, applicable law, and measure conformity impartially and rigorously. Even though Panels have procedural freedom to review evidence and consider whether to request external advice, such freedom is always to be exercised consonantly with fairness and due process.

IV. HOLDINGS

The Appellate Body held that Argentina’s application of the Minimum Specific Import Duties (DIEM) was inconsistent with Article II of the GATT 1994, as it constituted a type of duty different from that provided for in Argentina’s Schedule of Concessions. Accordingly, the Appellate Body upheld the Panel’s finding that Argentina acted inconsistently with its obligations under Article II in all instances where the DIEM system was applied.

With regard to the 3% ad valorem statistical tax, the Appellate Body rejected Argentina’s argument that this tax could be justified based on its commitments to the International Monetary Fund (IMF). It affirmed the Panel’s conclusion that the statistical tax violated Article VIII of the GATT 1994, as it exceeded the reasonable cost of services rendered by customs authorities.

Concerning the alleged procedural errors under Article 11 of the DSU, the Appellate Body dismissed Argentina’s claims, finding that the Panel had not failed to make an objective assessment of the matter. It held that the Panel’s decision to admit evidence submitted by the United States shortly before the second meeting and its decision not to consult with the IMF did not constitute procedural violations.

V. REASONING

(1) The Appellate Body reasoned that Article II:1(b) of GATT 1994 does not prohibit a Member from applying a type of duty different from that specified in its Schedule of Concessions, provided that the applied duty does not exceed the bound rate in the Schedule. In Argentina's case, the Schedule provided for ad valorem duties bound at 35%. The Appellate Body clarified that specific duties, like those under the DIEM system, are permissible as long as their ad valorem equivalent does not exceed the bound rate. However, the DIEM system was designed such that when the declared value of imports fell below certain representative prices, the specific duty resulted in an ad valorem equivalent exceeding 35%. This structural feature led to duties being levied in excess of bound rates in certain circumstances, violating Article II:1(b). The Appellate Body emphasized that the obligation under Article II:1(b) is to ensure that ordinary customs duties do not exceed bound levels in any application, and a change in duty type does not excuse exceeding those bindings.

(2) The Appellate Body rejected Argentina's claim that the Panel erred by finding a violation "in all cases" where DIEM was applied. It clarified that the Panel had not found a violation in every single import transaction but rather that the DIEM regime, by its structure and design, resulted in duties exceeding the bound rate for a significant number of transactions within affected tariff categories. The Appellate Body noted that while not every application of DIEM would breach Article II (e.g., when import prices were high enough that the specific duty's ad valorem equivalent stayed at or below 35%), the potential for excess duties inherent in the system rendered the measure inconsistent with Article II:1(b) insofar as it led to such excesses. This "as such" inconsistency arose because the regime did not include safeguards to prevent duties from exceeding bindings, violating the predictability and security of tariff concessions.

(3) The Appellate Body upheld the Panel's finding that the 3% ad valorem statistical tax violated Article VIII:1(a) of GATT 1994, which limits fees and charges for customs services to the approximate cost of services rendered and prohibits their use for fiscal purposes. The tax was applied broadly to all imports without being tied to the actual cost of statistical services, generating revenue far exceeding those costs, and thus functioned as a fiscal measure rather than a fee for services. Regarding Argentina's argument that the tax was justified by its IMF commitments under a Memorandum of Understanding, the Appellate Body reasoned that no provision in the WTO Agreement creates an exception to Article VIII based on IMF obligations. The tax was not an exchange restriction or control within the scope of GATT Article XV (which requires consultation with the IMF on exchange matters), but a customs charge on imports. The Appellate Body further noted that nothing in the Agreement Between the IMF and the WTO, the Declaration on the Relationship of the WTO with the IMF, or related declarations altered Argentina's obligations under Article VIII. The Panel was not required to consult the IMF, as the issue did not involve exchange measures under IMF jurisdiction.

(4) The Appellate Body dismissed Argentina's claims that the Panel committed procedural errors and failed to make an objective assessment under Article 11 of the DSU. On the admission of evidence submitted by the United States shortly before the second substantive meeting, the Appellate Body reasoned that panels have broad discretion under DSU Articles 12 and 13 to accept evidence, even if submitted late, provided it does not prejudice the other party's ability to respond. Here, Argentina had an opportunity to comment, and the Panel's decision did not abuse this discretion or violate due process. Regarding the Panel's refusal to consult the IMF, the Appellate Body found this within the Panel's authority, as Article 13 of the DSU grants panels discretion to seek external information, but does not mandate it. The matter did not require IMF expertise under GATT Article XV:2, as it concerned customs fees rather than exchange restrictions. Finally, the Appellate Body found that the Panel provided a reasoned explanation for its findings, fulfilling its duty under Article 11 to objectively assess the facts and law without unsupported assumptions or bias.

1. Appellate body report, Argentina - Measures affecting imports of footwear, textiles, apparel and other items - Complaint by United States, WT/DS56/AB/R, adopted 27/03/1998 ↑

2. Ibid para 1 ↑

3. Ibid para 3 ↑

4. Ibid para 4 ↑

5. World Trade Organization, Legal Provisions – GATT Article II (2019) <Legal provisions - GATT Article II.pdff> accessed 10 October 2025. ↑

6. General Agreement on Tariffs and Trade 1994, art VIII, available at <GATT 1994> accessed 10 October 2025. ↑

7. World Trade Organization, DSU, art 11 <DSU> accessed 10 October 2025. ↑

8. ibid article II:1(a)(b) ↑

9. ibid article II:1(a)(b) ↑

10. ibid article VIII:1(a) ↑

11. ibid article 11 ↑