Analysis And Critique On The Debate About "Like Product" Under Article Ⅲ Of GATT

One of the central principles of GATT is that of national treatment, a principle of nondiscrimination embodied in Article III. The broad and fundamental purpose of Article III is to avoid protectionism in the application of internal tax and regulatory measures. To this end, Article III obliges WTO Members to treat the imported products at least equally favorably as the"like"domestic products once they had been cleared through customs. Therefore, central to the application of Article III is the concept of"like product".However, GATT/WTO tribunal have lurched between two different doctrinal approaches to interpreting"like product"- one stresses a literal reading of the article to give each word of the provision its full effect; the other stresses a flexible reading of Article III to achieve the purpose of the provision. As a result, the role of the term"like product"in the first approach differs completely from that of the second. These two doctrinal approaches are described as the"Border Tax Adjustment"approach and"Aim and Effect"approach, which have been under heated debate for many years.This article mainly consists of four parts. The first part surveys certain basic issues in Articleâ…¢. Then the article reviews the GATT/WTO panel and Appellate Body rulings on facially nondiscriminatory tax and regulatory measures, which have applied both of the two doctrinal approaches in interpreting"like product". The third part provides a critical reading of this case law, examining the two approaches'conformities to the rules of treaty interpretation. In the next part, based on the two conflicting values under WTO multilateral trading system, the article tries to inquiry the substantial causation of the debate on the interpretation of"like product".