Overview

In the previous chapter Mireille Cossy essentially does three things. First, she describes the state-of-play of ‘like products’ under GATT national treatment: on the one hand, the four criteria of physical characteristics, end-use, consumer tastes and tariff classification; on the other hand, the formal rejection by the Appellate Body of the aims-and-effects test (both in GATT and GATS). Second, Cossy argues that likeness under GATS needs ‘something different’. In her words (at pp. 339–340):

Third, and finally, according to Cossy, this ‘something different’ is an improved aims-and-effects test according to which ‘elements related to the “regulatory context” of the service and/or of the supplier should play a role in relation to GATS national treatment’ (at p. 341). Cossy calls her proposal an improved aims-and-effects test in that, contrary to previous GATT cases that upheld aims and effects, Cossy's test would ‘ensure that only bona fide regulatory distinctions would be accepted, and that the effect on foreign services and suppliers is not disproportionate’ (at p. 346). This would be achieved, argues Cossy, by strengthening the aims-and-effects test ‘so as to ensure that a reasonable nexus exists between the measure and the policy objective in question’ (at p. 349).