Common use of To determine Clause in Contracts

To determine. whether the envisaged rebinding of the EC tariff on bananas would result in at least maintaining total market access for MFN banana suppliers, taking into account [all EC WTO market-access commitments relating to bananas].1 The terms of the mandate thus require the Arbitrator to consider whether or not a certain outcome "would result" from a certain action. The text of the mandate may be broken down into three elements. The first is the "envisaged rebinding of the EC tariff on bananas". This language describes the action at the centre of the required analysis. The second element comprises a benchmark against which the envisaged rebinding of the EC tariff on bananas is to be assessed. Thus, this element of the mandate requires the Arbitrator to determine whether the envisaged rebinding "would result in at least maintaining total market access for MFN banana suppliers". The third, and final, element is a direction to the Arbitrator to take into account all EC WTO market-access commitments relating to bananas whilst performing the analysis under its mandate. There is no disagreement as to the meaning and scope of the first element of the mandate. The parties agree that the "envisaged rebinding of the EC tariff on bananas" is reflected in the EC proposal to record a new commitment in its WTO schedule under tariff heading CN 08030019 at €230 per metric ton.2 The parties differ, however, over the interpretation of the second and third textual elements of the mandate. With respect to the second element, the Interested Parties generally argue that the concept of "at least maintaining" denotes that—at a minimum—the European Communities must keep in existence and must not allow diminution of the relevant market access of MFN suppliers through the rebinding.3 The European Communities, for its part, submits that the Arbitrators are required to examine "if the proposed new concession would not increase the level of protection (and conversely diminish the market access rights of MFN suppliers) as compared with the level of protection offered by the European Communities' current concession".4 The Interested Parties add that "maintaining" total market access carries with it a temporal, prospective dimension, such that total market access—appropriately defined—must be preserved in time.5 The parties offer markedly different interpretations as to the meaning of the phrase "total market access for MFN banana suppliers", and the significance and scope of the EC commitments to be taken into account. The European Communities reads these two textual elements of the mandate together and argues that the level of protection for EC banana producers (or, conversely, the degree of liberalization) accorded by the tariff commitments scheduled in the EC-15 Schedule CXL alone comprises the benchmark against which its envisaged rebinding is to be compared.6 Colombia, Costa Rica, Ecuador and Guatemala, as well as Brazil, argue that the concept of "total market access for MFN banana suppliers" requires a broader analysis, including, but not limited to, the European Communities' scheduled commitments, and which would encompass analysis of all relevant conditions affecting competition in the marketplace, including both the level of protection accorded to EC producers and the margin of preference enjoyed by preferential suppliers to the EC banana market.7 Honduras, Nicaragua and Panama also contend that the position of preferential suppliers is relevant to an assessment of whether the envisaged rebinding "would result in at least maintaining total market access for MFN banana suppliers".8 In addition, these parties argue that an analysis of "total market access for MFN banana suppliers" must be "quantity-based, exclusive to MFN suppliers, and encompasses the full amount of MFN volumes now authorized for MFN entry".9 Honduras, Nicaragua and Panama submit that the taking into account of "all EC WTO market-access commitments relating to bananas" must go beyond consideration of the European Communities' scheduled commitments, and must include analysis of commitments owed to MFN suppliers in the light of EC enlargement10; under the understandings concluded between the European Communities and the United States and Ecuador respectively in the context of the settlement of the EC – Bananas III dispute; under the negotiating mandate of the Doha Development Agenda (the "DDA"), as well as under the Doha Waiver itself.11 B. Analysis The starting point for the Arbitrator's analysis is the "envisaged rebinding of the EC tariff on bananas". The parties agree that the envisaged rebinding referred to in the mandate is the EC proposal, announced in a communication to WTO Members on 1 February 2005, to rebind its concessions for bananas under tariff heading CN 08030019 at €230 per metric ton. 12 The Arbitrator's task is to determine whether this envisaged rebinding "would result in at least maintaining total market access for MFN banana suppliers". In doing so, the Arbitrator must take into account "all EC WTO market-access commitments relating to bananas".