Book contents
- Frontmatter
- Contents
- Preface to the Series
- Introductory Remarks
- 1 A Map of the World Trade Organization Law of Domestic Regulation of Goods
- 2 The WTO Impact on Internal Regulations: A Case Study of the Canada–EC Asbestos Dispute
- 3 Reflections on the Appellate Body Decision in the Hormones Case and the Meaning of the SPS Agreement
- 4 The Salmon Case: Evolution of Balancing Mechanisms for Non-Trade Values in WTO
- 5 Lotus Eaters: Reflections on the Varietals Dispute, the SPS Agreement and WTO Dispute Resolution
- 6 Regulatory Purpose and “Like Products” in Article III:4 of the GATT (with Additional Remarks on Article III:2)
- 7 The WTO Standard of Review in Health and Safety Disputes
- 8 Expert Advice in WTO Dispute Settlement
- 9 Domestic Regulation, Sovereignty and Scientific Evidence Requirements: A Pessimistic View
- 10 Time for a United Nations' “Global Compact” for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration Law for Global Integration Law
- Index
6 - Regulatory Purpose and “Like Products” in Article III:4 of the GATT (with Additional Remarks on Article III:2)
Published online by Cambridge University Press: 27 July 2009
- Frontmatter
- Contents
- Preface to the Series
- Introductory Remarks
- 1 A Map of the World Trade Organization Law of Domestic Regulation of Goods
- 2 The WTO Impact on Internal Regulations: A Case Study of the Canada–EC Asbestos Dispute
- 3 Reflections on the Appellate Body Decision in the Hormones Case and the Meaning of the SPS Agreement
- 4 The Salmon Case: Evolution of Balancing Mechanisms for Non-Trade Values in WTO
- 5 Lotus Eaters: Reflections on the Varietals Dispute, the SPS Agreement and WTO Dispute Resolution
- 6 Regulatory Purpose and “Like Products” in Article III:4 of the GATT (with Additional Remarks on Article III:2)
- 7 The WTO Standard of Review in Health and Safety Disputes
- 8 Expert Advice in WTO Dispute Settlement
- 9 Domestic Regulation, Sovereignty and Scientific Evidence Requirements: A Pessimistic View
- 10 Time for a United Nations' “Global Compact” for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration Law for Global Integration Law
- Index
Summary
Prologue
In EC – Asbestos the Appellate Body has told us that (1) in interpreting Article III:4 of the GATT, we must take explicit account of the policy in Article III:1 that measures should not be applied “so as to afford protection to domestic production” [hereafter just “so as to afford protection”]. In Chile – Alcohol the Appellate Body has told us that (2) in deciding whether a measure is applied “so as to afford protection,” we must consider “the purposes or objectives of a Member's legislature and government as a whole” – in other words, the regulatory purpose of the measure. Chile – Alcohol was decided under Article III:2, but it involves the very same “so as to afford protection” that Asbestos says we look to in interpreting Article III:4. It follows from (1) and (2) that in interpreting Article III:4, we must consider the regulatory purpose of the measure under review.
That is the doctrinal argument for the relevance of regulatory purpose under Article III:4. In the ten years since US – Malt Beverages, we have come full circle on this issue. Although I think the Appellate Body is now on the right track, their double volte-face on the relevance of purpose illustrates the instability of doctrine – and the Appellate Body has not yet explicitly drawn the conclusion that their holdings in Asbestos and Chile – Alcohol entail.
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- Trade and Human Health and Safety , pp. 190 - 223Publisher: Cambridge University PressPrint publication year: 2006
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