Jean Monnet Center at NYU School of Law


II. The Neglected Question

The question yet to be settled is whether national rules distinguishing on a facially origin-neutral basis violate the non-discrimination rule only if they impose a greater overall disadvantage on imports than on comparable domestic goods, or whether it is sufficient that they disfavor some imports. This problem does not replace the "aims and effects" debate on whether GATT Article III allows consideration of the legislative purpose. Rather, it is the objective question whether there can be violations of the national treatment obligation without overall protective effect for the national industry. This paper intends to highlight and explore this neglected, yet highly relevant legal question, and does not express a position on further aspects of the non-discrimination provisions. The following sections will first explain the interpretative question in simple terms, then explore the jurisprudence and literature in the light of this question, before examining hermeneutic arguments and practical problems.

At the outset, the subject matter of the examination should be unambiguous. National measures are only origin-neutral if they contain no explicit distinction whatsoever on the basis of origin. This excludes measures which treat imports in the same manner as most, but not all, like domestic goods. Such measures typically contain an exception for local or regional goods, or even a single supplier within the domestic market. Contrary to the usual claim of the defendants in these cases, such regimes do not qualify as equal treatment, which means applying a measure indistinctly to imports and national goods. The exception in favor of a part of domestic suppliers, therefore, amounts to an explicit or de jure discrimination to the extent it applies. 6

6 See Panel Report, United States - Measures Affecting Alcoholic and Malt Beverages, adopted 19 June 1992, BISD 39S/206, paras. 5.5-5.6, 5.14-5.15, 5.17 and 5.33.




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