Reading further in the Argentina - Financial Services AB report, maybe I was getting all worked up over nothing. After seeming to say that "regulatory aspects" of the measure cannot be considered as a separate step in the conditions of competition/treatment no less favorable analysis, the AB then says this:
6.127. Finally, we wish to point out that our analysis does not suggest that any evidence relating to the regulatory aspects must a priori be excluded. Consistent with the established approach to assessing "less favourable treatment" under the GATT 1994, an assessment of whether a measure modifies the conditions of competition to the detriment of like services or service suppliers of any other Member "must begin with careful scrutiny of the measure, including consideration of the design, structure, and expected operation of the measure at issue". In such assessment, to the extent that evidence relating to the regulatory aspects has a bearing on the conditions of competition, it might be taken into account, subject to the particular circumstances of a case, and as an integral part of a panel's analysis of whether the measure at issue modifies the conditions of competition to the detriment of like services or service suppliers of any other Member.
What is "design, structure, and expected operation" looking at if not the objective intent of a measure?
And what does the AB have in mind when it first says no to regulatory aspects, but later says yes to regulatory aspects?
