Journal of World Trade 37(4): 783–799, 2003. © 2003 Kluwer Law International. Printed in The Netherlands. Robert Hudec and Domestic Regulation: The Resurrection of Aim and Effects Amelia P ORGES and Joel P. T RACHTMAN* I. THE PROBLEM OF PROHIBITIONS OF DISCRIMINATION AND NON-PROTECTIONIST DOMESTIC REGULATION It is no longer possible to discuss Article III of the General Agreement on Tariffs and Trade (GATT), or the entire question of discrimination in international trade, without referring to the work of Robert Hudec. Hudec approached the problem of defining the national treatment obligation under Article III of GATT with his customary rigour and insight. His roots in the legal realist movement allowed him to see great complexity hidden under the relatively simple appearance of the non- discrimination test, which, after all, is the only restriction on inward-oriented national measures under the original GATT. His positivism required him to examine the complexity and nuance offered by each case, in order to understand the factors that caused the Panel or Appellate Body to decide as it did. His pragmatism, his practical experience and his concern for the international system caused him to suggest important limits to the scope of the national treatment obligation—limits that seem obvious only once we understand the complexity and nuance that he presented. His positivism also required him to respect the regulatory prerogatives of states. Another Hudec hallmark was his inductive and unflinching approach to legal issues, which started from events as they had happened and asked how theory fit the facts, including the actions of the government actors in the trading system, rather than asking how real world data could be shoehorned into what theory would dictate. Connected to this was his constant concern for how legal outcomes corresponded to the policy goals that the General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO) legal system was designed to serve. Both made the system’s servants in governments, in private practice, and in the Secretariat and Appellate Body his devoted readers. Although he was a great trade scholar, Hudec, perhaps as a reflection of his personal modesty, or perhaps simply as a result of his deep understanding of the structure of society, did not place trade above other values: “The policing activity of domestic regulatory measures is a delicate task, one that requires reaching an acceptable balance between the * Amelia Porges is at Sidley, Austin, Brown & Wood LLP, Washington DC; formerly Senior Counsel for Dispute Settlement, USTR and Senior Legal Officer, GATT Secretariat. Joel P. Trachtman is Professor of International Law, The Fletcher School of Law & Diplomacy, Tufts University. The views expressed are personal and not those of any of these organizations.