Still Hazy after All These Years
The Interpretation of National Treatment in the Gatt/WTO Case-law on Tax Discrimination
Bibliographic Data
| ID | 12197877 |
|---|---|
| Authors | Henrik Horn (0000-0003-3949-7272, corresponding author) |
| Year | 2004 |
| Volume | 15 |
| Issue | 1 |
| Pages | 39-69 |
| Publication date | 2004-02-01 |
| Open Access | No |
| Type | ARTICLE |
| Venue | European Journal of International Law (JOURNAL) |
| Journal identifiers | ISSN: 0938-5428 • E-ISSN: 1464-3596 |
| Publisher | Oxford University Press (OUP) (PUBLISHER) |
| DOI | 10.1093/ejil/15.1.39 |
| OpenAlex | W2095981746 |
| Language | EN |
| Citations received | 6 |
This article discusses the National Treatment (NT) obligation as applied in the GATT tax discrimination cases. The central thesis of the paper is that case-law has not clarified the interpretation of the terms in Article III. It appears that the reason for this failure is the lack of a conceptually coherent view of the role of the NT obligation. After summarizing the case-law on discriminatory taxation, this article lays out a theory of the role of NT in trade agreements, in order to shed light on appropriate interpretations of the terms appearing in Article III. We start from the notion that the GATT is an obligationally incomplete contract. This incompleteness invites beggar-thy-neighbour type behaviour, and the NT obligation is an imperfect remedy for such problems. We suggest that likeness/directly competitive or substitutable (DCS) should be determined 'in the market place', whereas the 'so as to afford protection' criterion is ultimately about the protection of expectations concerning the intent behind domestic regulations. But since intent usually cannot be determined directly, adjudicating bodies have to seek recourse to indirect evidence, as is frequently done in legal practice
Common law · Economics · Imperfect · Interpretation (philosophy · Law and economics · Obligation · Order (exchange · Political science · EU Law and Policy Analysis · Taxation and Legal Issues · World Trade Organization Law · Law · Philosophy
Practical obstacles and structural legal constraints in the adoption of ‘defensive’ policies
Learning to Dispute
Nondiscrimination in Trade and Investment Treaties
The crisis of the WTO appellate body and the current trajectory of neoliberalism
Standards of Non-Discrimination in International Economic Law
The Good Case
| Citations per year | 0.33 |
|---|---|
| Citation span | 2008 - 2026 (19) |
| Highly cited | No |