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do a case brief: the cases disputes are concerned with national treatment( article 3 GATT), and...

do a case brief: the cases disputes are concerned with national treatment( article 3 GATT), and respondent (defendant) use article 20 as defence

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Case brief:

Article III:1 emphasizes that internal taxes and other charges, in addition to other laws, regulations or requirements which may affect the internal sale, offering for sale, purchase, transportation, distribution or use of products should not be applied so as to afford protection to domestic production. Article III:1 contains general principles, as opposed to specific obligations contained in other provisions of Article III. However, the general principles enshrined in Article III:1 act as a guiding principle for, and inform the interpretation of the other obligations contained in Article III.

  Furthermore, the phrase "so as to afford protection to domestic production" is also interpreted to mean that intent is not the key factor for a finding of violation or non-violation, thereby rejecting the so-called "aim-and-effect" test. Indeed, it is immaterial if protection to the domestic industry was not the intended objective of the measure because the relevant consideration is the application of the measure.

Article III:2

  • Whether the imported products of one contracting party and the domestic products of another are "like products";
  • Whether the imported products are taxed "in excess" of the like domestic product.

GATT Article XX Purpose:

  • Allow WTO members to adopt and maintain measures that aim to promote or protect important societal values and interests
  • Even if the measures are inconsistent with other rules of the GATT (and are hence trade restrictive)
  • Allow WTO members, under specific conditions, to give priority to certain societal values and interests over trade liberalisation, market access and / or discrimination rules

Application of GATT Article XX:

  • •Defense: to be invoked ONLY when a measure has been found to be inconsistent with any provision of the GATT (e.g. Articles I, III, XI)
  • Seeks a balance between affirmative commitments and the exceptions

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