EC-Asbestos Dispute: A Novel Approach to Likeness Determination

The EC-Asbestos dispute is a landmark case in WTO law because it established that the health risks associated with a product can be considered in determining whether two products are “like” for the purposes of Article III:4 of the GATT 1994.

In this case, the European Communities (EC) banned the importation of chrysotile asbestos fibers, which are known to be carcinogenic. Canada challenged the ban, arguing that it violated Article III:4 of the GATT 1994, which prohibits discrimination against imported products.

The Appellate Body (AB) upheld the ban, finding that the health risks associated with chrysotile asbestos fibers were relevant to the likeness determination. The AB reasoned that buyers would take these risks into account when making their purchasing decisions, and that therefore, chrysotile asbestos fibers and their substitutes were not “like” products.

The AB’s decision in the EC-Asbestos dispute is significant because it opens the door for the health risks associated with a product to be considered in determining whether two products are “like.” This could have a major impact on the way that WTO disputes are decided, as it could allow countries to justify measures that discriminate against products that are considered to be harmful to human health.