TBT협정 제2조 제1항의 ‘동종 상품’과 ‘불리하지 않은 대우’의 해석- 미국 정향담배 사건을 중심으로 -

The interpretation of “like products” and “treatment no less favourable” under Article 2.1 of the TBT Agreement- Focus on US Clove Cigarettes Case - Non-discrimination principle is one of the most important principles in the WTO Convention system. This non-discrimination principle can be only applied to ‘like products’. But the concept of ‘like products’ was not defined in the WTO legal system. Therefore, the WTO Dispute Settlement Body(that is the Panel and the Appeal Body) is faced with an obligation to interpret the concept of ‘like products’ under the WTO Convention. And the terms of ‘like products’ must be interpreted in the context of the object of the provision at issue and of the purpose of the covered agreement in which the provision appears. On 24 April 2012, the DSB adopted the Appellate Body report on the US - Clove Cigarettes Case which was the first case examining the concept of ‘like products’ under Article 2.1 of the TBT Agreement. In this case, Indonesia alleged that Section 907 prohibits the production or sale in the United States of cigarettes containing certain additives including clove, but would continue to permit the production and sale of other cigarettes containing menthol. Indonesia alleged that Section 907 is inconsistent, inter alia, with Article III:4 of the GATT 1994, Article 2 of the TBT Agreement. The Panel and the Appeal Body found that the ban is inconsistent with the national treatment obligation in Article 2.1 of the TBT Agreement because Section 907 permits clove cigarettes less favourable treatment than that permitted to menthol-flavored cigarettes. The purpose of this paper is to interpret the concept of ‘like products’ and ‘treatment no less favourable’ under Article 2.1 of the TBT Agreement through the US - Clove Cigarettes Case.