Trade, Investment and Intellectual Property
Edited by Anselm Kamperman Sanders
Chapter 2: National treatment under the GATT 1994: Jurisprudential developments on de facto discrimination
If the GATT 1994 is the part of the WTO Agreement which complaining parties most frequently invoke in WTO dispute settlement, and if Article III is the most frequently invoked provision of the GATT 1994, it is clear that, when it comes to practical relevance, the national treatment obligation of the GATT 1994 is one of the most important provisions of the WTO Agreement. It is no less important in conceptual terms, given that – with the exception of the even more widely applicable and fundamental most-favoured-nation treatment obligation set out in Article I:1 of the GATT 1994 – it may well be the WTO obligation with the most extensive substantive coverage in terms of WTO Members’ measures that can theoretically be inconsistent with it: Article III applies to all internal regulations affecting goods imported from other WTO Members. It potentially covers all taxes, including even direct taxes that are not levied on products, as well as all non-fiscal internal pieces of legislation of all levels of government, including individual instances of their application, whether they directly regulate products or not. All these must respect the requirements of Article III. In addition, Article III of the GATT 1994 has served as a model for the creation and formulation of national treatment obligations in other, more recent, parts of the WTO Agreement. The last 10 to 15 years have brought significant developments in the interpretation of the national treatment obligation. This chapter will highlight a number of these developments, in particular in relation to de facto discrimination.
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