University of Sussex
Browse
WTR1500053_PRF2.pdf (162.56 kB)

Sorting out mixed messages under the WTO national treatment principle: a proposed approach

Download (162.56 kB)
journal contribution
posted on 2023-06-08, 23:47 authored by Emily LydgateEmily Lydgate
When establishing whether a disputed regulation is protectionist under the WTO National Treatment Principle, there are two key elements: its effect on the market for competitive products, and its intent or policy rationale. Yet the Appellate Body has formally rejected both elements, and in the surprising 2014 outcome of EC – Seal Products, under the key provision GATT Article III(4), the latter was simply denied. This obfuscation leads to implicit and explicit conflation of these elements. In some disputes, qualitative findings about the existence and nature of competitive relationships are presented using the language of quantitative market analysis. In others, compelling policy objectives shape the outcome of a supposedly market-based analysis. This article proposes an approach that synthesizes two strands of scholarship, advocating more rigorous use of market-based evidence and stronger analysis of policy rationale. Separating these elements will achieve the appropriate balance between them and lead to greater transparency in dispute outcomes.

History

Publication status

  • Published

File Version

  • Accepted version

Journal

World Trade Review

ISSN

1474-7456

Publisher

Cambridge University Press

Issue

3

Volume

15

Page range

423-450

Department affiliated with

  • Law Publications

Full text available

  • Yes

Peer reviewed?

  • Yes

Legacy Posted Date

2015-12-17

First Open Access (FOA) Date

2016-06-22

First Compliant Deposit (FCD) Date

2015-12-17

Usage metrics

    University of Sussex (Publications)

    Categories

    No categories selected

    Exports

    RefWorks
    BibTeX
    Ref. manager
    Endnote
    DataCite
    NLM
    DC