For today's non-discrimination post number 2, here's something from the U.S. - Tuna II (DS381) panel's questions to the U.S.:
149. To the United States: You have referred to the treatment afforded to “imported products” under the measures in the context of your arguments concerning “less favourable treatment”. In light of your position that the “like products” at issue are US and Mexican tuna products, please clarify whether you consider that the existence of less favourable treatment must be assessed with reference to imported tuna products in general, rather than to Mexican tuna products? If so, please explain why this should be the case. Please clarify also how the relative situation of imports of different sources may be accounted for under this assumption.
That's a good question: Are the imports to be considered in a national treatment analysis only the imports from the complaining country, or is it imports from all countries? Here was the U.S. response:
94. The United States considers that the existence of less favourable treatment must be assessed with reference to imported tuna products in general versus domestic tuna products in general because Article III:4 prescribes no less favorable treatment of imported products as compared to like domestic products. Article I:1 of the GATT 1994 — not Article III:4 — addresses circumstances in which a measure is according less favorable treatment to imports from some Members as compared to others.
...
97. The United States has put forward extensive evidence in this dispute showing that the U.S. provisions do not in fact use fishing technique or location as a proxy for origin. The fact that tuna product imports from other nations – in fact the vast majority of all tuna imports – are eligible to receive the dolphin safe label is one piece of evidence that U.S. provisions do not use origin to distinguish between tuna products that are eligible to be labeled dolphin safe.
So according to the U.S., national treatment is about all imports worldwide, and concerns about one country's imports are more of an Article I:1 MFN issue.
