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Less Favourable Treatment Under Article III Of The GATT ( The Law Of The World Trade Organization )

Less Favourable Treatment Under Article III Of The GATT ( The Law Of The World Trade Organization )

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Acknowledgements This academic work is prepared during the L.L.M (Master of Laws) program which I completed at the University of CAMBRIDGE. \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"Less Favourable Treatment under Article III of the GATT\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" is the thesis written for the Law of the World Trade Organization paper. I first of all owe many thanks to my professor and supervisor Dr. Lorand Bartels who guided me during the whole process and enabled me to see different perspectives with his invaluable contributions. I kindly request my gratitude to be accepted by Dr. Bilgen Bilgin our Dean of Students from Koc University without whom I would not be able to realize my Cambridge dream. I will always carry the honour to be a Koc University graduate and it will remain as the special place where I gained the most precious legal notion. Cambridge University Squire Law Library undoubtedly has a crucial role for my thesis for its very kind and friendly librarians Ms. Lesley Dingle, Mrs. Kathy Wholley and Ms. Hazel Dean who supported me exponentially. I am grateful to my publisher Mr. Vedat Carbas. who encouraged me for publishing the thesis and made it available to the reader. Cambridge means excelling in law however; the experience of studying with the distinguished fellow Cambridge L.L.M students is for sure beyond description. In the end I thank my dearest family; my mother, father and sister Miss Gozde Engin Gunay as I could not have wished for more than their loving support. TABLE OF CONTENTS Acknowledgements 7 I. Introduction 9 II. Article III.1 oftheGATT 9 III. Article 111.2.1st Sentence of the GATT 10 A. Test to be conducted for determining violation of the article III 2.1st Sentence 10 B. De minimis requirement under the first sentence 11 C. Article 111.2.1st Sentence and Methods of Taxation Relationship 17 D. \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"Balancing\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" under Article III.2.1st Sentence 20 E. Article 111.2.1st Sentence and the Article III.l 24 IV. Article III.2.2\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"d Sentence of the GATT 26 A. Historical Background 26 B. Article 111.2.2nd Sentence and the Ad Article III.2 27 C. Article 111.2.1st Sentence and the Article 11.2.2nd Sentence 27 D. Test for detecting the violation of the article III.2.2\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"d Sentence 29 E. De minimis requirement under the second sentence 30 F. Second sentence and the \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"balancing\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" argument 33 G. Article 111.2.2nd Sentence-Article III.l interaction 37 1. Structure and Application of the Measure and the Role of the Intent of the Legislation- Drafters 40 a) Structure of the Measure 40 b) A Matter of \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"Application\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" not \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"Intention\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" 44 2. Magnitude of Tax Differential 47 V. Article III .4 of the GATT 51 A. Determining the inconsistency of a measure with the article III .4 51 B. Article III.4 and the article III.I Interaction 51 C. Article III.4 and the Ad Article III 53 D. Understanding the Less Favourable Treatment 53 1. The Interpretation of the term \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"Affecting\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" 54 2. Modification of Conditions of Competition the Detriment of the Imported Products 55 a) Effective Equality of Competitive Opportunities requirement 55 b) Fundamental Thrust and Effect of the Measure Inquiry 58 i. Fundamental Thrust and Effect - Implications and Design of a measure: the Terminology 60 ii. Examining the Measure\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\′s Structure and Implications under TBT Disputes 63 c) Formally Identical versus Different Requirements 66 d) \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"Balancing\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" argument in the article III.4 Context 69 3. The Relation between Modification of the Conditions of Competition and the Origin of the Product 72 VI. Conclusion 73 Bibliography 75 Literature 78 GATT Documents 80