Prologue

In EC – Asbestos the Appellate Body has told us that (1) in interpreting Article III:4 of the GATT, we must take explicit account of the policy in Article III:1 that measures should not be applied “so as to afford protection to domestic production” [hereafter just “so as to afford protection”]. In Chile – Alcohol the Appellate Body has told us that (2) in deciding whether a measure is applied “so as to afford protection,” we must consider “the purposes or objectives of a Member's legislature and government as a whole” – in other words, the regulatory purpose of the measure. Chile – Alcohol was decided under Article III:2, but it involves the very same “so as to afford protection” that Asbestos says we look to in interpreting Article III:4. It follows from (1) and (2) that in interpreting Article III:4, we must consider the regulatory purpose of the measure under review.

That is the doctrinal argument for the relevance of regulatory purpose under Article III:4. In the ten years since US – Malt Beverages, we have come full circle on this issue. Although I think the Appellate Body is now on the right track, their double volte-face on the relevance of purpose illustrates the instability of doctrine – and the Appellate Body has not yet explicitly drawn the conclusion that their holdings in Asbestos and Chile – Alcohol entail.