In 2020, the United States Trade Representative released a report on the WTO Appellate Body in which it criticised the Appellate Body’s approach to the non-discrimination standard under GATT Article III:4. The WTO dispute settlement bodies employ a two-step market based test. In its current form, the two-step model allegedly fails to strike an appropriate balance between governments’ sovereign right to regulate and the WTO’s trade liberalisation goals. While a three-step market-based and policy-based test has been proposed to remedy GATT Article III:4’s shortcomings, this article rejects its adoption. Instead, a refined two-step test should be employed with a more rigorous analysis of ‘like products’ under the first limb of the test.
Introduction
The World Trade Organization (WTO) serves as the guardian of the rules-based international trading system. In recent years, however, the organisation has faced significant challenges. Tensions peaked in 2019 when the United States blocked new appointments to the WTO Appellate Body, the dispute settlement body for appeals and a central pillar of the WTO, rendering it inquorate and unable to function.1 At the time, the United States Trade Representative released a report highlighting the deficiencies of the WTO dispute settlement bodies.23 With the forthcoming 12th Ministerial Conference,4 it is hoped that at least some of the United States’ concerns can be resolved and reforms agreed upon to ‘revitalise the organization’.5
One of the United States’ grievances lies in the Appellate Body’s approach to the General Agreement on Tariffs and Trade (GATT) Article III:4. GATT Article III:4 dictates that domestic regulatory measures should not be applied to imported or domestic products ‘so as to afford protection to domestic production’.6 In essence, the Article confirms that the National Treatment Principle7, a cornerstone of the WTO system, applies to WTO members’ domestic laws, regulations and requirements. Since the Article polices domestic regulation applied within a WTO member’s territory, it is vital that the WTO dispute settlement bodies strike an appropriate balance between allowing governments to regulate and adequately enforcing their trade liberalisation commitments. At present, in determining whether a domestic regulatory measure8 is discriminatory, the WTO dispute settlement bodies undertake a two-step market-based effects analysis. First, the WTO dispute settlement bodies will decipher whether imported and domestic products are ‘like’. If the answer is in the affirmative, then the WTO dispute settlement bodies will proceed to determine whether a disputed measure accords ‘less favourable treatment’ to the imported products. The United States condemns this approach as creating a ‘detrimental impact’ standard which does not reflect the concept of discrimination to which WTO Members agreed.9 The United States argued that the WTO dispute settlement bodies’ approach prevents WTO members from realising legitimate public policy measures and represents a significant encroachment into member states’ national regulatory autonomy.1011 To strike a more appropriate balance, a number of academics advocate for a third limb to be incorporated.12 This policy-based intent limb would operate broadly similarly to Article 2.1 of the Technical Barriers to Trade (TBT) Agreement.13 However, this article will argue adoption of such a limb would be misguided. National regulatory autonomy is not threatened by the ‘less favourable treatment’ standard per se but rather by the breadth of measures potentially subject to such analysis. Thus, what is really at issue is the WTO dispute settlement bodies’ interpretation of ‘like products’.
The article will be divided into four sections. The first section will outline the two-step market-based test and its shortcomings. It is submitted that the market-based tests deficiencies are two-fold. First, the WTO dispute settlement bodies centre their analysis on factors relating to the characteristics of the final product as opposed to production methods and processes. Second, these factors are applied inconsistently. Following this, the proposed three-step market-based effects and policy-based intent test will be discussed. This author will submit three reasons why the three-step test should not be adopted. Finally, it will argue that the market-test should remain. However, a more robust framework for analysis, employing both qualitative and quantitative econometric analysis, is required under the first limb of the market-test. A refined test for ‘likeness’ will limit the number of measures subjected to ‘less favourable treatment’ analysis, striking a more appropriate balance between WTO members’ desire to realise domestic policy objectives and the WTO’s central goal of trade liberalisation.
I. The current two-step market-based test
In determining whether a national regulatory measure is discriminatory and falls foul of the National Treatment Principle, the WTO dispute settlement bodies undertake a two-step analysis. First, the WTO dispute settlement bodies ascertain whether the imported and domestic products in question are ‘like’ (‘first limb’). WTO case-law repeatedly demonstrates that the exact content of the concept of ‘likeness’ is to be determined on a case-by-case basis.14 However, several qualitative criteria, drawn from the 1970 GATT Border Tax Adjustment Working Party report, which focus on the central concept of competition between products, have been utilised in this analysis. These include tariff classifications, the products’ end uses in a given market, consumer tastes and habits, and the product’s properties, nature and quality.15 The term ‘competition between products’ is not found in the text of GATT Article III, rather the Appellate Body has made reference to the Supplementary Notes under Annex I. However, both WTO panels and the Appellate Body reports refer to these criteria, and they can be seen as a useful ‘starting point’ for analysis.16 Secondly, the WTO dispute settlement bodies determine whether the imported products are accorded ‘less favourable treatment’ (‘second limb’). A measure accords treatment less favourable if it modifies the conditions of competition in the relevant market to the detriment of imported products. Proof of ‘actual effects’ of the measures in the market is not required. ‘Potential effects’ are deemed sufficient.17
It is submitted that the main issues with the current approach stem not from the ‘detrimental impact’ standard per se, but rather from the first limb of the market-test – the test for ‘like products’. First, the above criteria clearly demarcate factors based on characteristics of the product per se, and factors based on characteristics of the processes and production methods related to the final product. This results in an overly inclusive categorisation of ‘like products’. Domestic goods which were produced in an environmentally sustainable manner and foreign goods which were not will still be considered ‘like’ products under the current market-test so long as they remain competitors within a given market. Thus, measures which treat these products differently on the basis of their production measurements, for example in terms of environmental labelling requirements or other regulations, will be subject to the second limb of the test. Taking such an approach risks legitimate distinctions between products being considered to have a ‘detrimental impact’ on imports. As the United States argues, this may result in a lower standard of discrimination than what was formally agreed by WTO members.18 It seems implausible that WTO Members, when negotiating the GATT, would have agreed to an obligation under which any measure with a disparate impact on products, similar upon final production but incomparable during processing, would breach Article III:4. The centrality of competition as a metric for ‘likeness’ means WTO members have less latitude to pursue legitimate policy objectives such as environmental protection and animal welfare.19
Secondly, in practice, we see an inconsistent application of the aforementioned qualitative factors. While an in-depth account of the dispute settlement bodies reports is beyond the remit of this essay, the following paragraph will highlight some of these varying standards. In Japan – Alcoholic Beverages, the Appellate Body appeared to employ a traditional cross-price elasticity of demand analysis in order to determine whether various spirits were ‘like’.20 Subsequently, in Korea – Alcoholic Beverages, recourse was made to both econometric indicators and non-econometric indicators in equal measure.21 A number of subsequent panel decisions highlighted the importance of an intense competitive relationship until the EC-Asbestos report in which ‘likeness’ appears to have been all but separated from market analysis.22 Here, a ‘reasonable consumer’ standard was employed.23 The ‘reasonable consumer’ evokes an enticingly simplistic notion to the concept of ‘likeness’. However, this author posits the ‘reasonable consumer’ standard is ill-advised. First, the term reasonable is highly polysemous. Given the cultural and social heterogeneity of the WTO members, the notion of a ‘reasonable consumer’ will not be uniform across jurisdictions nor between WTO panel and Appellate Body members.24 Deciding what the ‘reasonable consumer’ would consider to be a ‘like product’ in a given jurisdiction would require substantial empirical evidence. This does not seem to have been required by the WTO dispute settlement bodies thus far. Second, and relatedly, reasonableness is highly permeable. At least theoretically, it allows the WTO dispute settlement bodies to substitute objective market indicators for their own subjective formulations. This leaves room for non-market-based factors, such as regulatory intent, to be taken into account when adjudicating GATT Article III:4 disputes. By denying that these factors have weight in decision making, the Appellate Body’s reasonings are less rigorous and more implicit .25 The result is a lack of transparency in legal reasoning. Strict adherence to market factors would better protect the WTO dispute settlement bodies from allegations of objective bias and may increase the perception of legitimacy of the Appellate Body rulings.26
Contrary to the United States’ submissions, the standard of analysis under the second limb is, in fact, appropriate and necessary. Protectionist measures are rarely drafted in overtly discriminatory terms. The second limb of the test aims to capture both actual and potential, direct and indirect, de jure and de facto discriminatory measures. This ensures protectionist measures cannot be disguised as non-trade related policies. However, the combined effect of the inconsistent reliance on qualitative factors during the ‘like product’ analysis is that the standard of ‘likeness’ is low and unpredictable. Consequently, the scope of measures analysed under the second limb is too broad, which risks giving rise to false positives.
II. The three-step test proposed by Lydgate
As argued above, the WTO dispute settlement bodies are already examining policy intent, albeit implicitly, under the first limb of the market-based test. Reagan contends policy intent should be explicity scrutinized under the first limb of the test and should inform whether products are ‘like’.27 The present author respectfully disagrees. The difficulty is the reasons for implementing a measure are rarely clear-cut or readily discernible; And, given the disparity of evidence between parties to a dispute, the WTO dispute settlement bodies have two options. First, they can accept a party’s policy rationale on its face. If the WTO dispute settlement bodies predicate their analysis on a non-bona fide regulatory objective, the whole of its subsequent ‘likeness’ analysis will be fallacious. Second, the WTO dispute settlement bodies could engage in an examination of the domestic regulators’ intent. This would represent an intrusion upon domestic sovereignty. Neither options are desirable yet the subsequent analysis is wholly informed by its accuracy. This conflation of objective market-based and subjective policy-based reasoning creates a larger margin for error, which in turn creates a loophole for protectionist measures.
The question then arises as to whether regulatory intent should be explicitly acknowledged as a separate formal step in the analysis. Lydgate argues for a three-step market-based effects and policy-based intent test to be adopted.28 Under this framework, the WTO dispute settlement bodies would follow the usual two-step market-based analysis. Once less favourable treatment of imports is established, the WTO dispute settlement bodies would then conduct an inquiry into whether such distinctions are necessary to pursue a legitimate regulatory aim. While this test resembles the aims and effects test developed by two GATT panels in the early 1990s, it is structurally different.29 Under the aims and effects test, ‘likeness’ would be found only if both the aim and the effect of a disputed measure was to protect ‘like’ domestic goods. However, under Lydgate’s proposal ‘likeness’ is determined objectively with a subjective regulatory intent analysis being conducted separately. Hence, her proposal is more akin to the approach taken under Article 2.1 of the TBT Agreement.
The benefit of the three-step test is clear. Good faith national policy objectives, while not overtly discriminatory, may fall under the category of de facto discrimination and be subject to WTO dispute resolution.30 Under the three-step test such measures would not be found to be in breach of the National Treatment Principle. This affords greater protection of national sovereignty. Furthermore, arguments against a departure from the current approach pertaining to legal certainty do not hold water. Here, a distinction should be made between different degrees of precedent.31 Existing panel and Appellate Body reports play an important function in shaping the WTO dispute settlement bodies decisions. Consistency and continuity in jurisprudence provides security and predictability to the multilateral trading system.32 However, unlike common law systems, there is no rule of stare decisis in WTO dispute settlement.33 Where there are legitimate reasons to change the approach, the WTO dispute settlement bodies can and should do so. Therefore, a departure from prior rulings cannot be seen as a jurisprudential faux pas. However, in the following section, this author argues that there are three reasons this test should not be adopted.
III. Why the three-step test should not be adopted
First, the adoption of the three-step test has important repercussions on the burden of proof imposed on the complainant in the dispute settlement processes.34 The complainant bears the burden of showing not only discriminatory effect but also that the aim of the measure is to afford protection to domestic production. Imposing a positive obligation on the complainant raises the burden of proof to an unrealistic standard given that, in national politics, whether the stated aims and the true aims of a measure are identical cannot be guaranteed.
Secondly, the three-step analysis could lead to activism on the part of WTO panel and Appellate Body members and may result in the WTO dispute settlement bodies acting beyond their official mandate. Policy intent is often multifaceted and thus challenging to ascertain. It is unlikely that protectionist intent will be formally declared by the regulating government, requiring the WTO dispute settlement bodies to rely on circumstantial evidence. One of the reasons WTO members, particularly the United States, have become frustrated with the WTO dispute settlement bodies decisions lies in the accusation that the WTO panels and the Appellate Body regularly overstep their mandate.35 Whilst I concede that it would seem more appropriate to have a transparent process whereby the WTO dispute settlement bodies reasoning can be clearly observed and scrutinised, I do not agree a three-step test is the correct mechanism by which to do so. From a political economy perspective, it seems improbable that greater encroachment into domestic policy affairs will be accepted by WTO members. The tension between the multilateral trading system rules and domestic autonomy has been widely recognised.36 Any reform which would strengthen the institution’s authority over domestic affairs would require the backing of a major trading power, such as the United States; and, while Biden declared ‘America is back’ following the Trump administration,37 commentators have expressed disappointment about the United States’ continued scepticism of the WTO.38
Finally, consideration of regulatory purpose under GATT Article III would leave no reason to conduct such inquiry under the GATT Article XX exceptions. A measure found to be discriminatory under GATT Article III:4 may be saved by the General Exceptions under GATT Article XX if the discrimination is non-arbitrary and rationally linked to the achievement of one of the listed public policy objectives such as, inter alia, public morals, human animal and plant life and health, prevention of deceptive practices and protection of exhaustible natural resources.39 A policy-based intent analysis is necessary under Article 2.1 of the TBT Agreement to show deference to regulatory sovereignty as it does not include an exceptions provision. The same cannot be said for GATT Article III:4. The dichotomy between trade-related obligations and public policy-related exceptions reflects the fundamental characteristics of the normative WTO framework and indicates a ranking of interest in favour of neo-liberal40 trade ideals.41 The WTO is a specialised institution with a narrowly designed mandate (i.e. to further trade liberalisation), the hierarchy advanced by the norm-exception paradigm is both necessary and appropriate to maintain institutional legitimacy. If the United States believes this list to be overly restrictive, it is open to them to propose appropriate amendments.42
IV. A revised market test
This author posits the two-step market-based test should remain with two adaptations to the first limb. First, there is a need for greater reliance on sound economic analysis of the impact of domestic regulation on the market. Standard econometric approaches to quantifying competitive relationships between goods include, inter alia, evaluating the cross-price elasticity of demand, and these approaches are readily used by competition authorities such as the European Commission in the context of Article 101 and 102 TFEU investigations.43 Thus far, the WTO dispute settlement bodies have been circumspect in utilising submitted quantitative evidence.44 This is surprising, not least because the qualitative factors examined seem less sophisticated, precise and plausible than modern economic analysis of the extent of competition between products.45
Strict adherence to market analysis, employing both quantitative and qualitative evidence, allows for more robust and transparent reasoning. Policy intent should not be a factor in such analysis. Arguably, this protects the dispute settlement bodies as it does not involve any subjective value judgements on their part and may increase the perception of legitimacy of their rulings.46 Moreover, the dispute settlement bodies should approach the qualitative factors methodically to provide a more rigorous analytical framework. This will offer WTO members greater insight into the concept of ‘likeness’ and is especially important where quantitative econometric evidence is unavailable. In turn, this will allow WTO members to more accurately predict whether a regulatory distinction will be analysed under the ‘less favourable treatment’ limb and whether their WTO obligations require suitable adjustments be made to a proposed policy measure.
Second, the product’s method of production should be incorporated into the analysis as a qualitative factor. Taking the earlier example, under the reformed market test domestic goods which are produced in an environmentally sustainable manner and foreign goods which are not will, most likely, not be considered ‘like products’. The inclusion of the product’s method of production as a factor of analysis thus limits the scope of ‘like products’ and allows WTO Members more leeway to realise legitimate regulatory aims such as environmental sustainability. A narrower interpretation of ‘like products’ provides the added benefit of settling disputes at an early stage.
Conclusion
The United States’ criticisms of the WTO dispute settlement bodies, at least in relation to the interpretation of GATT Article III:4, are well founded but misplaced. The two-step market-based test is failing to strike an appropriate balance between governments’ sovereign right to regulate and the WTO’s trade liberalisation goals. While a three-step market-based and policy-based test has been proposed to remedy GATT Article III:4’s shortcomings, this article rejects its adoption. The three-step test has negative implications for a claimant’s burden of proof requirements, risks the WTO dispute settlement bodies overstepping their mandate and raises the possibility of GATT Article XX becoming superfluous.
It is submitted that the issues posed by the current approach stem not from the second limb of the test, as opined by the United States, but rather from the capriciously low standard for ‘like products’ under the first limb. The WTO dispute settlement bodies also conflate market-based and policy-based reasoning which impacts on institutional legitimacy. Notwithstanding this, it has been argued the market-test should continue to be employed using a more robust methodology under the first limb. This would incorporate both quantitative and an extended list of qualitative factors. However, regulatory intent should not be considered under the first limb. Confining analysis to objective market factors precludes value judgements of the political and social environment in which production methods take place. Such an approach protects the WTO dispute settlement bodies from overstepping their mandate and increases the perception of legitimacy of its reports. It will also enhance predictability of dispute outcomes for both private market actors and the regulating WTO members. By contrast, adopting a more policy-based three-step test would, all things considered, do more harm than good.
I would like to thank Dr Mona Paulsen and the editors for their comments on earlier drafts. Any errors remain the author’s own.
[1] As of 10th December 2019, the Appellate Body went into crisis as two out of its three remaining members’ terms came to an end. However, in recent weeks there has been renewed hope that Appellate Body functions may be restored. See Bryce Baschuk, ‘Biden’s Nominee to WTO Wants to Restore Appellate-Body Function’ (Bloomberg, 26 October 2021) <https://www.bloomberg.com/news/articles/2021-10-26/biden-s-nominee-to-wto-wants-to-restore-appellate-body-function> accessed 9 November 2021; Alan Beattie, ‘WTO To Suffer Heavy Blow As US Stymies Appeals Body’ Financial Times (Brussels, 8 December 2019) <https://www.ft.com/content/f0f992b8-19c4-11ea-97df-cc63de1d73f4> accessed 16 January 2022.
[2] This article will refer to the WTO Appellate Body and panels under the collective term ‘WTO dispute settlement bodies’.
[3] Office of the United States Trade Representative, ‘’Report On The Appellate Body Of The World Trade Organization’ (US Report) (Ustr.gov, 2020) <https://ustr.gov/sites/default/files/Report_on_the_Appellate_Body_of_the_World_Trade_Organization.pdf> accessed 16 January 2022.
[4] WTO members originally agreed the 12th Ministerial Conference would take place in June 2020 in Kazakhstan, but this was postponed due to the COVID-19 pandemic. At the time of writing, the 12th Ministerial Conference is scheduled to commence the 12th June 2022; World Trade Organization, ‘Twelfth WTO Ministerial Conference’ (2022) <https://www.wto.org/english/thewto_e/minist_e/mc12_e/mc12_e.htm> accessed 2 March 2022.
[5] William Alan Reinsch, ‘WTO MC12 Agenda: Too Much Or Not Enough?’ (Center for Strategic & International Studies, 16 November 2021) <https://www.csis.org/analysis/wto-mc12-agenda-too-much-or-not-enough> accessed 2 March 2022.
[6] WTO Appellate Body, Report of the Appellate Body: Japan – Taxes on Alcoholic Beverages (4 October 1996) WT/DS8/AB/R, WT/DS10/AB/R and WT/DS11/AB/R 25, 109-110; Simon Nicholas Lester, Bryan Mercurio and Arwel Davies, World Trade Law (3rd edn, Hart Publishing 2018) 265.
[7] The National Treatment Principle dictates that imported and locally-produced goods should be treated equally — at least after the foreign goods have entered the market; See WTO, ‘Understanding The WTO – Principles Of The Trading System’ <https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm> accessed 30 March 2022.
[8] As a preliminary step, the WTO Dispute Settlement Bodies determine whether the disputed measure falls within the scope of GATT Article III:4, i.e, a law, regulation or requirement. This has also been referred to as the first step of the market-based test.
[9] Ming Du, ‘Treatment No Less Favorable and the Future of National Treatment Obligation in GATT Article III:4 after EC-Seal Products’ (2016) 15(1) World Trade Review 139, 155.
[10] US Report (n 3) 91.
[11] In this article I will define ‘national regulatory autonomy’ as the ability of governments to pursue legitimate non-trade related policy goals by way of regulation.
[12] See Emily Lydgate, ‘Sorting Out Mixed Messages Under the WTO National Treatment Principle: A proposed Approach’ (2016) 15(3) World Trade Review 423; Simon Nicholas Lester, ‘The U.S. Critique of the Appellate Body’s GATT Non-Discrimination Jurisprudence’ (International Economic Law and Policy Blog, 14 February 2020) <https://ielp.worldtradelaw.net/2020/02/the-us-critique-of-the-abs-gatt-non-discrimination-jurisprudence.html> accessed 19 December 2021.
[13] ‘Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.’
[14] ibid 452.
[15] WTO Working Party on Border Tax Adjustments, ‘Border Tax Adjustments’ (2 December 1970) BISD 18S/97-109, para 18.
[16] Ole Kristian Fauchard, ‘Flexibility and Predictability under the World Trade Organization’s Non-Discrimination Clauses’ (2003) 37(3) Journal of World Trade 443, 453.
[17] Peter Van Den Bossche, and Denise Prévost, Essentials of WTO Law (2nd edn, Cambridge University Press 2021).
[18] US Report (n 3) 90.
[19] WTO Appellate Body, Report of the Appellate Body: EC – Seal Products (22 May 2014) WT/DS400/AB/R, WT/DS401/AB/R.
[20] Japan – Taxes on Alcoholic Beverages (n 6).
[21] WTO Appellate Body, Report of the Appellate Body: Korea – Taxes on Alcoholic Beverages (18 January 1999) WT/DS75/AB/R and WT/DS84/AB/R [20]; WTO Panel, Report of the Panel: Korea – Taxes on Alcoholic Beverages (17 September 1998) WT/DS75/R WT/DS84/R 174, 192: The panel referred to econometric evidence such as cross-price elasticity of demand and comparison with similar markets as well as qualitative factors such as product characteristics, end-uses and channels of distribution and prices.
[22] WTO Appellate Body, Report of the Appellate Body: European Communities – Measures Affecting Asbestos and Asbestos- Containing Products (5 April 2001) WT/DS135/AB/R (EC- Asbestos).
[23] ibid.
[24] Arnold Leonard Epstein, ‘The Reasonable Man Revisited: Some Problems in the Anthropology of Law’ (1973) 7(4) Law & Society Review 643, 645.
[25] Lydgate (n 12) 446.
[26] Henrik Horn and Joseph H.H. Weiler, ‘EC- Asbestos’ in Henrik Horn and Petros C. Mavroidis (eds), The WTO Case Law of 2001 (Cambridge University Press 2003) 31, para 30-1.
[27] Donald Reagan, ‘Regulatory Purpose and ‘Like Products’ in Article III:4 of the GATT (With Additional Remarks on Article II:2)’ (2002) 36(3) Journal of World Trade 443, 448.
[28] ibid
[29] Japan – Taxes on Alcoholic Beverages (n 6).
[30] Lester (n 12).
[31] The role of precedent was discussed by various state actors in the WTO panel Report in WTO Appellate Body, Report of the Appellate Body: India – Measures concerning sugar and sugarcane (14 December 2021) WT/DS579/R, WT/DS580/R and WT/DS581/R.
[32] See arguments of the European Union in WTO Appellate Body, Report of the Appellate Body: India – Measures concerning sugar and sugarcane (14 December 2021) WT/DS579/R, WT/DS580/R and WT/DS581/R 117.
[33] James Bacchus and Simon Lester, ‘The Rule of precedent and the Role of the Appellate Body’ (2020) 54(2) Journal of World Trade 183, 184.
[34] Du (n 9) 659.
[35] US Report (n 3) 91.
[36] In 2011, former Director General of the WTO Secretariat Pascal Lamy stressed the significance of this tension by stating ‘[t]he multilateral trading system of the future will … have to address … [t]he blurring of the edges between trade policy and others such as exchange rate policies, climate change policies, food security policies or energy policies’. See Pascal Lamy, ‘Speech: Lamy looks at the multilateral trading system of the future’ (CUTS International event, Delhi, 6 September 2011) <http://www.wto.org/english/news_e/sppl_e/sppl205_e.htm> accessed 9 February 2022.
[37] Geoff Dyer, ‘Donald Trump threatens to pull US out of WTO’ Financial Times (Washington, 24 July 2016) <https://www.ft.com/content/d97b97ba-51d8-11e6-9664-e0bdc13c3bef>accessed 9 February 2022.
[38] Sarah Anne Aarup. ‘‘All talk and no walk’: America ain’t back at the WTO’ (Politico, 23 November 2021) <https://www.politico.eu/article/united-states-world-trade-organization-joe-biden/> accessed 9 February 2022.
[39] Lester (n 12).
[40] First propagated by von Mises and Hayek, neoliberalism generally refers to the philosophical view that a society’s political and economic institutions should be robustly liberal and capitalist but supplemented by a constitutionally limited democracy and a modest welfare state. See Richard Peet, Theories of development: contentions, arguments, alternatives (The Guilford Press 2015) 96.
[41] Lester, Mercurio and Davies (n 6) 665.
[42] US Report (n 3) 94.
[43] Commission Notice on the definition of the relevant market for the purposes of Community competition law [1997] OJ C 372/5.
[44] Lydgate (n 12).
[45] Damien Neven and Joel P. Trachtman, ‘Philippines – Taxes on Distilled Spirits: Like Products and Market Definitions’ (2013) 12(2) World Trade Review 297, 302.
[46] Horn and Weiler (n 26).
Aoife McCormick
LLB (Trinity College Dublin) ’20, LLM (LSE) ’22 and Competition and Tax Law Notes Editor of the LSE Law Review 2021-22