Land and Maritime Delimitation and Sovereignty Over Islands (Gabon v. Equatorial Guinea), Judgment

multiple times throughout its analysis (and italicizes the word "risk" twice (Malaysia, paras.7.306, 7.509; Indonesia, paras.7.315, 7.524)) to reject several of the complainants' arguments (Malaysia, paras.7.508-7.509,7.528, 7.555; Indonesia, paras.7.523-7.524,7.543, 7.571).It never explains, however, how the quantity of GHG emissions may be irrelevant to an analysis of a measure whose objective, as the panel itself determined, was to "limit the risk of ILUC-related GHG emissions associated with crop-based biofuels" (Malaysia, paras.7.218, 7.267; Indonesia, paras.7.218, 7.276).* * * * To summarize, the Palm Oil panel could have saved itself time and effort (and do justice to the object and purpose of the TBT Agreement) by adopting the policy-based likeness test.The assessment of the scientific evidence and of its interpretation by the Commission, which the panel undertook as part of its "reasonable basis for the regulatory distinction" analysis, would have become the core of the panel's likeness determination.The panel would presumably have found that, due to its particularly high ILUC risk, palm oil-based biofuel, on the one hand, and rapeseed-and soybean-based biofuel, on the other, were not like products, and the analysis under Article 2.1 would have ended there.The issues the panel identified with the administration of the measure (the lack of a timely review of the underlying data, the deficiencies in the ILUC certification criteria and requirements) could then be addressed separately under other provisions of the TBT Agreement (e.g., Article 2.2, which prohibits technical regulations that are more trade restrictive than necessary to fulfill a legitimate objective).As the panel adopted the Appellate Body's competition-based likeness test, it found the products were close competitors and therefore like, which necessitated a separate analysis of whether the detrimental impact on the competitive opportunities for PME stemmed exclusively from a legitimate regulatory distinction.The panel, however, applied a modified version of this test by tacitly abandoning the demanding exclusivity requirement and framing its assessment in terms of whether there existed a reasonable basis for the regulatory distinction between palm biodiesel and the other biofuels.The panel also introduced an additional initial step of analysis-an inquiry into the "a priori legitimacy" of the regulatory distinction, which it used to formulate a couple of foundational precepts that would inform significant aspects of the panel's further assessment of the regulatory distinction at issue.It remains to be seen if the panel's approach takes root in future disputes.