Some of you may have heard of Tesla, a car company that makes high-end electric cars (if you are thinking of this 1980s band, you have the wrong Tesla). What you may not have heard is that they are using a novel sales method, under which they bypass dealers and sell directly to consumers. They have showrooms, but you can't actually buy cars there. You just look at the cars in the showroom, and then order online from the company, which ships it to you. (It may be more complicated than all that, but I think that covers the basics).
This approach is controversial, due to long-standing restrictions designed to give car dealers the exclusive right to sell cars to consumers (i.e., direct sales from the producer are banned). There are some political and legal battles being fought right now in the U.S. over this. It will be interesting to see how these turn out.
But it occurs to me there might be trade law issues here as well. I suspect that other countries have similar laws that prevent direct sales. For the sake of argument, let's say Canada does. If Tesla wants to make direct sales to Canadian consumers, it would be prohibited from doing so. Would such a measure violate GATT Article III:4? This provision states:
The products of the territory of any Member imported into the territory of any other Member shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.
The argument would be that, in practice, only the foreign company Tesla is seeking to use direct sales to distribute its product. Thus, these laws have, in practice, a disparate impact on foreign goods, as only foreign goods are affected. As a result, on a de facto basis, foreign goods are treated less favorably when these direct sales are not allowed.
Perhaps I'm stretching too far on this one to find a claim, but I thought maybe there could be something here ...
