One of my favorite topics in trade law is the non-discrimination standard, so I'm always excited when I see that someone has tried to tackle the issue, or at least some aspect of it. Julia Qin of Wayne State University Law School has just written a paper entitled "Defining Nondiscrimination under the Law of the World Trade Organization," available here from SSRN. In the article abstract, she explains:
The article proposes an analytical framework for the assessment of the "likeness" or "similarity" issues, which are the key to determining whether discrimination exists. This analytical framework is built upon the "similarly situated" paradigm suggested by the WTO Appellate Body in the case of EC-Preferences, and draws upon general moral philosophy on the concepts of equality and similarity, as well as nondiscrimination jurisprudence developed under the equal protection and commerce clauses of the United States Constitution. Applying this framework, the article examines WTO judicial interpretations of nondiscrimination in a variety of treaty contexts, including those concerning "like products", "like services", "like conditions", and "similarly situated countries" under GATT, GATS, SPS, and the Enabling Clause. This analysis exposes gaps, ambiguities and inconsistencies in existing WTO jurisprudence. Moreover, it demonstrates that through the use of the proposed framework it becomes possible to interpret various nondiscrimination requirements of the WTO in a conceptually coherent and policy-consistent manner.
In the paper, she explains further:
This paper seeks to explore and develop a general approach to analyzing the likeness or similarity issues within the WTO context. Under this approach, we are directed to focus on the object and purpose of the WTO rule that contains the “likeness” or “similarity” concept or otherwise requires a “likeness” or “similarity” comparison between the concerned subjects. The criteria for determining likeness or similarity, or the bases for drawing distinctions, between the concerned subjects must be relevant to the rule’s object and purpose – that is, such criteria must be conducive to, useful, or necessary for the advancement of the object and purpose of the rule. The identification of the relationship between the purpose of the rule and the basis for determining likeness or similarity under the rule is of pivotal importance. Without a clear understanding of this relationship, we will be at loss how to choose a relevant criterion for determining likeness or similarity. Unless a criterion is indispensable for furthering the goal of the rule, however, whether to use it in determining likeness or similarity is a matter of normative decision.
