Do the Appellate Body's statements in EC - Aircraft on de facto export contingency tell us anything about the National Treatment standard? The Panel's findings had seemed to place a lot of emphasis on the reasons for the measure as the basis for determining whether export contingency existed. The Appellate Body criticized this approach:
1050. The standard for determining whether the granting of a subsidy is "in fact tied to … anticipated exportation" is an objective standard, to be established on the basis of the total configuration of facts constituting and surrounding the granting of the subsidy, including the design, structure, and modalities of operation of the measure granting the subsidy. Indeed, the conditional relationship between the granting of the subsidy and export performance must be objectively observable on the basis of such evidence in order for the subsidy to be geared to induce the promotion of future export performance by the recipient. The standard for de facto export contingency is therefore not satisfied by the subjective motivation of the granting government to promote the future export performance of the recipient. In this respect, we note that the Appellate Body and panels have, on several occasions, cautioned against undue reliance on the intent of a government behind a measure to determine the WTO-consistency of that measure. The Appellate Body has found that "the intent, stated or otherwise, of the legislators is not conclusive" as to whether a measure is consistent with the covered agreement. In our view, the same understanding applies in the context of a determination on export contingency, where the requisite conditionality between the subsidy and anticipated exportation under Article 3.1(a) and footnote 4 of the SCM Agreement must be established on the basis of objective evidence, rather than subjective intent.
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1063. By using the word "because", the Panel equated the standard of export contingency with the reason(s) for granting a subsidy. The Panel's findings indicate a standard that requires anticipated exportation to be the reason for the granting of a subsidy. We have explained above that the standard for finding that the granting of a subsidy is in fact tied to anticipated exportation is not met simply by showing that anticipated exportation is the reason for granting the subsidy. The test is whether the granting of the subsidy is geared to induce the promotion of future export performance by the recipient. The authority's reasons for the granting of the subsidy may provide some evidence to meet the correct standard, but it is not to be equated with that standard. The reason for granting the subsidy is not the same thing as whether the granting of the subsidy is geared to induce the promotion of future export performance by the recipient.
However, despite this criticism of looking at "subjective motivations," the Appellate Body also suggested that another form of intent could play a role in the export contingency standard:
1050. ... We note, however, that while the standard for de facto export contingency cannot be satisfied by the subjective motivation of the granting government, objectively reviewable expressions of a government's policy objectives for granting a subsidy may, however, constitute relevant evidence in an inquiry into whether a subsidy is geared to induce the promotion of future export performance by the recipient.
1051. Similarly, the standard does not require a panel to ascertain a government's reason(s) for granting a subsidy. The government's reason for granting a subsidy only explains why the subsidy is granted. It does not necessarily answer the question as to what the government did, in terms of the design, structure, and modalities of operation of the subsidy, in order to induce the promotion of future export performance by the recipient. Indeed, whether the granting of a subsidy is conditional on future export performance must be determined by assessing the subsidy itself, in the light of the relevant factual circumstances, rather than by reference to the granting authority's reasons for the measure. This is not to say, however, that evidence regarding the policy reasons of a subsidy is necessarily excluded from the inquiry into whether a subsidy is geared to induce the promotion of future export performance by the recipient.
So, you can't look exclusively at subjective motivations (although it seems they can be taken into account) as part of the export contingency standard, but it's fine to look at the "objective" intent.
Here's my question: If intent can be taken into account in this way under a provision such as SCM 3.1(a), can it also play a role in, say, GATT Article I:1, Article III:4 and Article III:2, first sentence? We know it can be used in Article III:2, second sentence, but that's because of the tie to Article III:1 and its "so as to afford protection" language. But if there is a broader principle that allows for the use of (objective) intent, and it can be used in a provision such as SCM 3.1(a) which does not have similar terms, can it play a role in these other non-discrimination provisions? The Appellate Body may soon get a chance to address this issue, if the new Tuna-Dolphin case (DS381) gets appealed.
