Understanding National Treatment: The Participatory Vision of the WTO


In this article we suggest that this substantive-based understanding of the national treatment provision should be, and is being, replaced by a proce-durally oriented understanding, one that largely avoids a judgment about the substantive values underlying national regulation or the clash between the free trade values of the WTO and national regulatory values. When properly understood, the interpretive standards that the Appellate Body has set up are not an endorsement of an aims and effects review. Instead, the Appellate Body is moving, seemingly deliberately, toward a vision of the national treatment principle that emphasizes process values, specifically the importance of protecting domestic lawmaking processes that allow domestic interests to provide "surrogate representation" for adversely affected foreign interests. This interpretation of the national treatment principle puts the Appellate Body in the position of looking at domestic legislation to see whether domestic forces that have interests identical to the interests of foreigners (and would therefore give surrogate representation to foreign interests within the domestic lawmaking process) have in fact been silenced or had their role impaired. This is the surrogate representation rationale of the national treatment principle.


World Trade Organization

Publication Date


Document Type


Place of Original Publication

Indiana International and Comparative Law Review

Publication Information

14 Indiana Journal of International Law 505 (2004)

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COinS Peter M. Gerhart Faculty Bio