There are many areas of WTO law where it seems clear that the legality of a challenged measure depends on whether it was motivated by some type of prohibited purpose. And yet the Appellate Body has been very loath to discuss the cases in those terms. GATT Article III (as applied to origin-neutral measures) is the paradigmatic example; but there are many other examples, including GATT Article I (as applied to origin-neutral measures), Article 5.5 of the Agreement on Sanitary and Phytosanitary Measures (SPS), and certain provisions of the Subsidies Agreement, such as Article 1.1(a)(1)(ii) (foregoing revenue “otherwise due”) and Article 3.1(a) (“contingent . . . on export performance”). There are hopeful signs in the recent trilogy of cases on Article 2.1 of the Agreement on Technical Barriers to Trade (TBT). That is not because the Appellate Body talks explicitly about prohibited purpose as the core of a violation of TBT 2.1; it does not. Rather, it is because in these cases the Appellate Body is explicit and emphatic about the role of justification by a legitimate regulatory purpose in preventing the finding of a violation. If we cannot be candid about the role of prohibited purpose, then emphasizing justification by a legitimate purpose may be the next best thing. Indeed, the new cases raise important issues about the relationship between the presence of prohibited purpose and the absence of legitimate justification.
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