GATT 제 III 조와 시장기반설(Market-based Approach)
사회과학 > 법학
최원목 ( Won Mog Choi )
이화여자대학교 법학연구소
법학논집 2004년, 제8권 제2호, 101~116페이지(총16페이지)
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    The obligations of international trade law hinge upon the question of what constitutes "like products" or "directly competitive or substitutable products". Trade disputes will often involve an examination of whether the products in question are in competition with one another, with one another, and thus, whether they are subject to the rules of non-discrimination of the GATT/WTO. Hence, how to determine "like product" or "directly competitive or substitutable product" relationship will determine the scope of application of the non- discrimination rule. Until now, there have been suggested two approaches to determine this relationship: the Border Tax Adjustment(BTA) report approach and the Aim-and-Effect approach. The former looks on the producer characteristics, tariff 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 enhance 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 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``
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