From the TPP cross-border trade in services chapter:
Article 10.3: National Treatment2
1. Each Party shall accord to services and service suppliers of another Party treatment no less favourable than that it accords, in like circumstances, to its own services and service suppliers.
2 For greater certainty, whether treatment is accorded in “like circumstances” under Article 10.3 (National Treatment) or Article 10.4 (Most-Favoured-Nation Treatment) depends on the totality of the circumstances, including whether the relevant treatment distinguishes between services or service suppliers on the basis of legitimate public welfare objectives.
I'm all for taking into account legitimate public welfare objectives, but when you have the phrase "treatment no less favourable" in a provision, isn't that the best place to look at these objectives? I know the result ends up the same, but to keep the various national treatment (and MFN) obligations consistent across trade instruments (e.g., the WTO TBT Agreement), and for a more logical interpretation of the text, maybe it would be better to always have the likeness element as a narrow competitiveness analysis, and let "treatment no less favourable" deal with detrimental impact / legitimacy of the objective.
