GATT 제Ⅲ조와 시장기반설(Market-based Approach)

Abstract

The obligations of international trade law hinge upon the question of what constitutes "like products" or "directly competitive or substitutable product". Trade disputes will often involve an examination of whether the products in question are in competition with one another and thus whether they are subject to the rules of non-discrimination of the GATT/WTO. Hence, how to determine the scope of application of the non-discrimination rule. Until now there have been suggested two appreaches to determine this relationship: the Border Tax Adjustment(BTA) report approach and the Aim-and-Effect approach. The former looks on the product characteristics, traiff classification and end-use of products in comparison whereas the latter compares products from the perspective of "aim" of the government which takes measures at issue. Although the Aim-and -Effect approach can enhace legitimate regulatory autonomy of governments unlike the BTA approach, it has a critical flaw of ignoring the textual structure of GATT and of engendering a danger of circumvention of GATT obligations. By contrast the market-based approach as proposed in this article helps the WTO jurisprudence to take nuanced determinations of product likeness and thus to save legitimate governmental policies to that extent. In the end what is considered as "like" or "directly competitive or substitutable" by market participants such as consumers ought to be determined as "like" or "directly competitive or substitutable" products. We must remember that WTO Agreement is a commercial treaty operating in a 'market'