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Do You Mind If I Don't Smoke? Products, Purpose and Indeterminacy in US - Measures Affecting the Production and Sale of Clove Cigarettes

2014 World Trade Review, Forthcoming

International Law Forum of the Hebrew University of Jerusalem Faculty of Law Research Paper No. 11-13

45 Pages Posted: 4 Sep 2013 Last revised: 14 Apr 2015

Tomer Broude

Hebrew University of Jerusalem - International Law Forum

Philip I. Levy

The Chicago Council on Global Affairs; Northwestern Kellogg School of Management

Date Written: August 29, 2013

Abstract

The AB Report in US-Clove Cigarettes confirmed the Panel’s conclusions that imported clove cigarettes were ‘like’ US menthol cigarettes, and accorded ‘less favourable treatment’ for the purpose of national treatment under Article 2.1 TBT, but it employed significantly different logic. The AB’s reasoning extends earlier GATT jurisprudence into the TBT, applying competition-oriented analysis to the question of product definition, while reserving consideration of regulatory purpose to the comparison of treatment. We consider this emphasis from the perspectives of legal and economic indeterminacy, which we find run in parallel to each other. In the particular questions of the appeal, the AB’s decisions are sensible from both perspectives, but ultimately do not add significantly to determinacy. We find it impossible to ignore regulatory purpose in discrimination cases, and we provide a novel economic model for analyzing regulatory utility in this respect. In our view, there is not much economic difference in analyzing regulatory purpose separately from more observable market considerations, but this sequencing does add political logic, analytical focus and formal transparency, all of which may enhance the legitimacy of WTO dispute settlement rulings, although ideally, further specification from the WTO Membership regarding the methodological content of the national treatment discipline would be preferred.

Keywords: WTO, International trade, like products, antitrust, tobacco control

Suggested Citation

Broude, Tomer and Levy, Philip I., Do You Mind If I Don't Smoke? Products, Purpose and Indeterminacy in US - Measures Affecting the Production and Sale of Clove Cigarettes (August 29, 2013). International Law Forum of the Hebrew University of Jerusalem Faculty of Law Research Paper No. 11-13. Available at SSRN: https://ssrn.com/abstract=2317298

Tomer Broude (Contact Author)

Hebrew University of Jerusalem - International Law Forum ( email )

Mount Scopus, 91905
Israel

Philip I. Levy

The Chicago Council on Global Affairs ( email )

332 S. Michigan Avenue, Suite 1100
Chicago, IL 60604
United States

Northwestern Kellogg School of Management ( email )

2001 Sheridan Road
Evanston, IL 60208
United States

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