7. „Other duties or charges” omitted from a list at the time of deposit of the instrument incorporating the list in question in GATT 1994 with the Director-General of the CONTRACTING PARTIES to GATT 1947 or thereafter with the Director-General of the WTO until the entry into force of the WTO Agreement shall not be added at a later date and „other duties or charges” shall be set at an amount less than the amount in force. on the relevant date, this level may be restored only if such additions or modifications are made within six months of the deposit of the instrument.  For example, Japan (Fuji) defended its position in Fuji-Kodak (1998) and emphasized this element. By the 1960s, Japanese film manufacturers and importers, including Kodak, had introduced single-brand distribution and acquired or contracted existing wholesalers to build single-brand distribution networks. This process was largely completed in 1967 and the universal standard in 1979 and did not change until 1994, when tariff concessions were negotiated. Given this very public process and the fact that single-brand distribution is the norm in virtually every film market in the world, the United States simply could not expect anything other than single-brand distribution in Japan. Fujifilm, Statement by Fuji Photo Film on the Japanese Government`s submission to the WTO in the Film Case (accessed 18 August 1997) [hereinafter Fujifilm, Comments]. According to the Fuji Kodak Group`s final report, this argument of the Japanese government seemed to be accepted by the group.
The Panel decided that, since the Japanese measures technically existed before the United States negotiated tariff reductions on film and photo paper, the United States should not have expected new market access as a result of the tariff concessions. See Fuji-Kodak Panel Report, note 7 above, ¶¶ 10.103, 10.111, 10.126. (6) For the purposes of this Agreement, the provisions of Articles XXII and XXIII of GATT 1994, as prepared and applied by the Dispute Settlement Agreement, apply.  GATT 1994, footnote 5 above, art. XXIII ¶ 1 bed. This document deals only with complaints of non-infringement XXIII:1(b). With respect to XXIII:1(c) complaints, which are often referred to as „situational complaints,” there are very few traces in the history of the former GATT panel. See Ernst-Ulrich Petersmann, Violation-Complaints and Non-Violation Complaints in Public International Trade Law, 34 GERMAN Y.B. INT`L.
175, 192 (1991). There have been no GATT panel decisions recognizing claims of non-infringement on the basis of Article XXIII(1)(c). JACKSON ET AL., note 5 above, p. 364.  In Fuji-Kodak, Japan sought to emphasize this aspect in its defense against the U.S. complaint. It argued: „The key issue raised by this case is whether the conditions of competition in the Japanese film and paper market were disrupted after 1967, 1979 or 1994. The United States could not prove that it was.
Japan has shown that it is not. Even assuming that the US claims that the Japanese government`s actions were indeed „measures” under WTO rules, the market situation today is better than ever in the past. Fujifilm, Comments, note 23. 495 above. Once the Panel has upheld the conclusion that the COOL measure is inconsistent with Article 2(1) of the TBT Agreement, the first condition for appeals by Canada and Mexico under Article XXIII(1)(b) of the GATT 1994 is not met and we therefore need not draw conclusions on Article XXIII(1)(b) with respect to the cooling measure. Nor is it necessary for us to make a statement about Vilsack`s letter.  However, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) expressly prohibits the application of the GATT 1994 non-infringement provision to the settlement of TRIPS disputes for a period of five years from the date of entry into force of the WTO Agreement. See Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the WTO Agreement, loc. cit. Note 2, art.
64, ¶ 2 [`TRIPS`]. Similarly, the North American Free Trade Agreement (NAFTA), although it uses the term non-infringement or depreciation, limits the call for this type of complaint. See Cherie O`Neal Taylor, Dispute Resolution as a Catalyst for Economic Integration and an Agent for Deepening Integration: NAFTA and MERCOSUR?, 17 NW. J. INT`L. & BUS. 850, 899, n.161 (1997); North American Free Trade Agreement, December 17, 1992, U.S.-Can.-Mex., 32 I.L.M. 289 (with Chapters 1 to 9), 32 I.L.M. 605 (with Chapters 10 to 22), Annex 2004 (1), (2), 699 [„NAFTA”). 5. The inclusion of „other customs duties or charges” in the Annexes shall not affect their conformity with duties and obligations under GATT 1994 which are not covered by paragraph 4.
All members reserve the right to challenge at any time the compliance of any „other duty or burden” with these obligations. 8. The decision in paragraph 2 on the date applicable to each concession within the meaning of Article II(1)(b) of THE GATT 1994 replaces the decision on the date of application of 26 March 1980 (BISD 27S/24). Understanding on the Interpretation of Article II(1)(b) of the General Agreement on Tariffs and Trade 1994 1. In order to ensure the transparency of legal rights and obligations under Article II(1)(b), the nature and amount of the `other customs duties or charges` referred to in that provision levied on related tariff items are recorded in the Schedules of Concessions annexed to GATT 1994 for the customs article to which they apply. For greater certainty, such a register does not alter the legal nature of „other customs duties or charges”. 494. Canada and Mexico also each bring conditional remedies against the panel`s exercise of legal economy to determine whether the DEM measure nullifies and impairs benefits within the meaning of Article XXIII(1)(b) of the GATT 1994. Canada is also raising a conditional appeal with respect to the vilsack letter. In other words, if we were to refute the panel`s finding of inconsistency under Article 2.1 of the TBT Agreement and not consider the DEM measure to be inconsistent with Article III(4) of the GATT 1994, then Canada invites us to complete the legal analysis under Article XXIII(1)(b) and declare that both the COOL measure and the Vilsack letter have the advantages, create, cancel and affect Canada through successive multilateral trade negotiations.
If the same conditions are met, Mexico invites us to complete the legal analysis under Article XXIII(1)(b) and to find that the COOL measure nullifies and undermines Mexico`s benefits from U.S. tariff concessions in its tariff commitments. 2. The date on which the `other duties or charges` referred to in Article II are linked shall be 15 April 1994. „Other duties or charges” are therefore included in the lists at the level in force on that date. In the event of a subsequent renegotiation of a concession or negotiation of a new concession, the date applicable to the tariff item concerned shall be the date of inclusion of the new concession in the corresponding schedule. .