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JURIDICAL ANALYSIS REGARDING THE IMPLEMENTATION OF 'LIKE PRODUCT'(A CASE STUDY OF THE US-CLOVE CIGARETTE CASE)

BACA FULL TEXT ABSTRAK Pemesanan Versi cetak
Pengarang Cut Safiratutdhien - Personal Name
SubjectAPPELLATE COURTS
JURISPRUDENCE
Bahasa English
Fakultas Fakultas Hukum
Tahun Terbit 2013

Abstrak/Catatan

i ABSTRACT CUT SAFIRATUTDHIEN JURIDICAL ANALYSIS REGARDING THE IMPLEMENTATION OF ‘LIKE PRODUCT’ (A CASE STUDY OF THE US-CLOVE CIGARETTE) Faculty of Law Syiah Kuala University (vii, 84) pp,bibl. (Mahfud, S.H.,LL.M.) The US-Clove cigarette case was officially started in 2009 between the United States (US) and Indonesia. It was when the measure at issue in Section 907 (a)(1)(A) of the Federal Food, Drug and Cosmetic Act (FFDCA), which was added to the FFDCA by Section 101(b) of the Family Smoking Prevention and Tobacco Control Act (FSPTCA) was issued. However, the FSPTCA only banned clove cigarrete from Indonesia and did not apply the same act to American (domestic) cigarette (menthol cigarette) which is allegedly has the same characteristics with the clove cigarette. One of the reasons which make this research important is although the ‘like product’ has its standard, it still the most frequently encountered phare that poses an interpretative problem. This research aims to observe to what extent the Panel and the Appellate Body decide that the US had treated the ‘like’ imported product (clove) less favourably than the ‘like’ domestic product (menthol). Secondly is to analyze the consideration of Panel and Appellate Body to use different approaches in determining ‘like product’. The method that will be used in conducting the research is legal normative research. In order to compile this normative research data, library research is applied to get secondary data beside rely upon Agreements, Jurisprudence, and doctrine through reading, citing and analyzing data as well as examine case law that are related to object of research. The research found that; (a) fulfillment of the element of 'like product' between menthol cigarette (domestic product) with the clove cigarette (imported product) which proves that the Section 907 (a) (1) (a) of the Tobacco Control Act treats imported products less favorable than the domestic product; (b) in resolving this case, Panel used Policy Related Evidence as the approach based on the Art. 3.2.2 of the GATT (General Agreement on Tariffs and Trade) 1994 which consider the aim of Section 907 (a)(1)(A) is to reduce youth smoker. Whereas the Appellate Body believe that this case must be completed by the Market-based approach where the using of cigarette is to fulfill consumer needs of nicotin, whether it is clove or menthol cigarette. Deservedly, the US has to obey what has been stipulated in international regulations, particularly, in this case, the agreements that have been agreed upon fellow members of WTO. Although it has the same final decision, Panel should hold on the Market-based approach rather than Policy Related Evidence except it has special characteristic.. 2013

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